Resource: The Constitutional Law of Incarceration, Reconfigured

Part I begins with a doctrinal history; prisoners’ rights precedents are unfamiliar to many, and the author summarizes the pre-Kingsley Supreme Court case law as it evolved over time. Even for those conversant with recent prisoners’ rights cases, the 1980s/90s doctrinal shift the author describes may come as a surprise. Then the author examines the key logical fault line in the doctrine—its reliance on an undersupported and idiosyncratic definition of the concept of “punishment” as the foundation for a subjective liability standard under the Eighth Amendment. Part II examines several jail use-of-force scenarios, using them as test cases facilitating normative evaluation of various liability rules. Part III addresses Kingsley itself, exploring the two principal opinions in depth. The author suggests that Kingsley’s reading of its chief precedent, Bell v. Wolfish, is a fair one, and then explains how that reading directs adjudicatory attention to objective evaluation of the reasonableness of uses of force, rather than conditioning liability for excessive force on either the punitive intent or recklessness of the jail officer. The author then moves from use of force to conditions of confinement, arguing that Kingsley doctrinally entails a similar objective liability rule in that context as well, and then defends that outcome normatively. In Part IV, the author looks at the ways organizational dynamics support the Kingsley rule and argues that Kingsley’s salutary return to a non-culpabilitybased liability regime avoids a deeply problematic entailment of a culpability-based system, a “cost defense” to constitutional liability. In Part V, the author shifts from pretrial detainees and the Fourteenth Amendment to convicted prisoners and the Eighth Amendment; the reasonableness approach is compelling there, too.