Yale Law Journal - Free-World Law Behind Bars - Yale Law Journal

abstract. What law governs American prisons and jails, and what does it matter? This Ar- ticle offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth

Amendment and Due Process Clauses impose on permissible punishment. Yet, as I show, “free- world” regulatory law also shapes incarceration, determining the safety of the food imprisoned

people eat, the credentials of their health-care providers, the costs of communicating with their

Unfortunately, regulatory law’s protections ofen recede at the prison gate. Sanitation inspec- tors visit correctional kitchens, find coolers smeared with blood and sinks without soap—and give

passing grades. Medical licensure boards permit suspended doctors to practice—but only on in- carcerated people. Constitutional law does not fill the gap, treating standards like a threshold for

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those

challenging carceral conditions that constitutional prison law lacks. Whether you think that crim- inal-justice policy’s problem is its lack of empirical grounding or you want to shif power and re- sources from systems of punishment to systems of care, I contend that you should take a close look

Project, UCLA School of Law. For their insights, I am grateful to Tendayi Achiume, Poppy Alex- ander, Andrea Armstrong, Alice Buttrick, Jenny Carroll, Beth Colgan, Sharon Dolovich, Ingrid

Eagly, Bridget Fahey, Nicole Godfrey, Phyllis Goldfarb, Wynne Muscatine Graham, Brian High- smith, Jeremy Kreisberg, Matthew Lee, Ela Leshem, Jacob Lipton, David Marcus, Jon Michaels,

especially Austin Reagan and Jackson Skeen; their suggestions improved the Article both in sub- stance and style. Any remaining errors are mine alone. This Article was named the winner of the

i. what constitutional prison law countenances 1393

source: https://www.yalelawjournal.org/article/free-world-law-behind-bars

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