‘Free-World’ Regulations Could Prevent Prison Abuses: Study

Applying the regulatory approach used in the “free-world” has significant advantages over constitutional law in mitigating abusive conditions in prisons and jails, according to a paper published in the Yale Law Journal.

For instance, court rulings have barely provided the minimum in protecting incarcerated individuals in areas like fire safety, assurance of food quality, and access to communications—protections that they would be entitled to on the outside under regulatory law, writes Aaron Littman, a UCLA law professor.

“Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap—and give passing grades,” Littman writes. “Medical licensure boards permit suspended doctors to practice—but only on incarcerated people.”

Courts have ruled that lapses like serving rotten or moldy food aren’t violations of prisoners’ constitutional rights. In the case of communications, courts have ruled that a constitutional violation would occur only if a prison foreclosed phone access entirely.

“Regulatory law’s protections often recede at the prison gate,” Littman wrote in his essay, originally published as a Public Law Research Paper by the UCLA School of Law.

Littman notes that several correctional facilities violated the Center for Disease Control (CDC) guidelines during the pandemic. However, the courts excused the violations since officials took some measures and did not deliberately defy any guidelines.

The regulatory approach, as proposed in the study, would have prisons follow the laws of the free world rather than rely on constitutional challenges to determine whether policies violate any constitutional rights, like the violations of the CDC guidelines during the pandemic.

“Constitutional law does not fill the gap,” Littman writes. “[It treats] standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.”

Littman argues that Congress already indicated partial support for applying regulatory standards to prison governance.

In 1996, Congress enacted the Prison Litigation Reform Act (PLRA) to counter an influx of prisoner litigation cases in federal courts.

The PLRA limited the courts’ discretion in these cases. Instead, they act when needed to correct the violation of the federal right.

The study argues that the regulatory law approach is more preventative under the PLRA than constitutional law.

“Regulatory law requires measures not strictly necessary to mitigate a particular harm;” Littman writes.

“Instead, it overcorrects, to create a reasonable buffer of protection and account for the possibility of marginal noncompliance.”

While prisons are designed to offer fewer freedoms than the free world, the comparative approach can be less effective than the regulatory approach the study proposes.

The study argues that prisons would work more as welfare institutions and improve conditions in the facilities. In addition, it would have a direct effect on reducing recidivism.

“Were it robustly applied, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks,“ Littman writes.

It currently remains unclear if advocates will champion the regulatory approach idea, and less clear if prisons or Congress will work to endorse the approach.

“In contrast to external but corrections-specific oversight, regulation stands a better chance of avoiding institutional capture,” Littman writes.

The complete paper can be downloaded here.

James Van Bramer is associate editor of The Crime Report

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