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Tuesday, June 23, 2015

Openness to Discuss Prison Conditions: Will SCOTUS Deliver on its Promise?

Yesterday marks the second time in a week in which Supreme Court opinions that did not directly involve incarceration conditions included dicta that signaled readiness to hear and discuss them.

The first one was Justice Kennedy's concurring opinion in Davis v. Ayala, which I discussed in a previous post. There, Justice Kennedy offers a reminder that the respondent spent a quarter century under solitary confinement, and discusses the evils of these prison conditions.

The second one came yesterday, in Kingsley v. Hendrickson, which did not involve an inmate, but rather a pretrial detainee who sued jail officials for excessive use of force. Given the Bell v. Wolfish determination that pretrial detention did not count as "punishment", Kingsley could not recur to the Eighth Amendment, and instead made a Fourteenth Amendment due process claim. In a 5:4 decision split along predictable lines, Justice Breyer sided with Kingsley, finding that the appropriate test for use of force situations in pretrial detention is an objective test.

What is interesting here is that, again, we get a dicta that pertains to prison conditions, which did not go unnoticed:

We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.

Could the proximity of these two posts be contributions to Jonathan Simon's "dignity cascade"? The real test, I expect, will be when claims about prison conditions are brought directly, rather than acknowledged in passing in other contexts. 

Posted by Hadar Aviram on June 23, 2015 at 11:06 AM | Permalink


I guess I think there might be some justifications for the constitution calling for different conclusions in certain contexts (pretrial detainees have generally had greater success challenging the use of restraints than have prisoners). With the application of force, if it is really beating someone up, then I agree there should be no difference.

Posted by: Alex Reinert | Jun 24, 2015 3:08:29 PM

Exactly, Alex, which brings me to the next question - what might be possible grounds to protect pretrial detainees more than we protect inmates? The only rationale for differentiation I can think of is that pretrial detainees are presumed innocent, but since beating someone up in prison is not "punishment", but excessive use of force, why should it make a difference whether one is presumed innocent or guilty? After all, the material point is that when people behind bars are vulnerable to conditions and excesses, and presumably this holds true for everyone in confinement regardless of their legal status.

Posted by: Hadar Aviram | Jun 24, 2015 1:06:02 PM


I agree that both of these decisions are quite interesting. Kingsley, in particular, because in oral arguments, one could have read the Court as suggesting (1) that there is no real difference in practice between the objective and subjective test and (2) if we are going to use the same standard, let's use the Eighth Amendment one (i.e., the one that is less protective of people in detention). The opinion suggests that not only might there be a practical difference between them, but also that if we are only going to use one, maybe it should be the more protective one. In addition to seeing what the Court does next (especially on solitary confinement), I am interested in seeing what lower courts do now, because so many of them had always said, "we know there is a difference between pretrial detainees and people who have been convicted, but we are basically going to use the Eighth Amendment standard for everyone" (Cathie Struve had a nice article some time ago talking about this problem, for anyone interested in reading more).

Posted by: Alex Reinert | Jun 24, 2015 11:48:24 AM

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