Resource: Supermax Administration and the Eighth Amendment: Deference, Discretion and Double Bunking

By: Keramet Reiter

January 1, 2015

U.C. Irvine L. Rev.

This Article explores the constitutionality of supermax prisons, focusing on one of the earliest and largest supermaxes in the United States, California's Pelican Bay State Prison, and one of the first court cases to consider supermax constitutionality, Madrid v. Gomez. Although international human rights bodies have condemned indeterminate periods of solitary confinement in the harsh conditions of American supermax prisons as torture, no American court has found that the harsh conditions or long durations of confinement in these institutions violate the Eighth Amendment prohibition against cruel and unusual punishment. This Article examines why. Part I suggests the simplest answer: courts evaluating supermax confinement have simply deferred to prison administrators' assertions that the institutions are constitutional. Introducing the cases that have examined supermax prison conditions, with a specific focus on Madrid, this part analyzes the role of judicial deference in Madrid and other, similar decisions. Parts II and IIIpresent evidence of two key overlooked mechanisms of this judicial deference. Part II analyzes historical evidence from archives and oral histoy interviews to demonstrate how prison administrators in California and Arizona worked to design supermax institutions maximally fee of public oversight, demonstrating that deference to prison officials is not only initiated by courts, but a/so actively cultivated by supermax designers and administrators. A second mechanism o judicial deference to supermax administrators is a presumption that no empirical evidence exists with which to evaluate prison administrators' claims. But this presumption is unwarranted. Part III provides an example of the kinds of empirical evaluations of supermax administrators' claims that are possible, even in the context of limited evidence and broad administrative discretion. Part IV suggests two judicial and two nonjudicial avenues to check the broad discretion in the design and operation of supermax prisons; this discretion has produced a lack of public, and especially judicial, oversight o potentially egregious constitutional violations. Supermaxes represent the most extreme end of mass incarceration in the United States. Looking closely at the motivations behind supermaxes, their ungovernability, and their potential for reform, therefore, has implications for mass incarceration more broadly. If we could grapple with limiting the supermax, perhaps this would give us clues as to how we might grapple with limiting other aspects of the supersized American criminal justice system.