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Judicial Interventions for Inhumane Prison and Jail Conditions

Despite limits imposed by statutes and court rulings, judges still have numerous tools to encourage — and when necessary, compel — the government to protect people in its custody.

Published: October 24, 2023

For decades, New York City’s jails have been riddled by complicated, entrenched, and interlocking problems. In 2011, 12 people confined to the New York City jails sued the city’s corrections department under federal civil rights and constitutional law. They alleged that corrections officers had violated their rights by housing them in inhumane conditions, including routinely inflicting violence against them. Rather than contest their claims, the city settled the matter and in 2015 entered into a historic consent decree, a negotiated resolution between two parties in a lawsuit. The consent decree required the city to implement numerous far-reaching reforms to reduce violence, and it gave a federal judge the power to enforce its terms.

But eight years later, New York City is substantially out of compliance with the consent decree. Conditions in the city jails have barely improved — in many respects, they’ve worsened — nor have they become any less unconstitutional.

New York City’s jails aren’t unique; shuddersome conditions reign in numerous prisons and jails across the country. State and local authorities are tasked with running their own correctional institutions, but oversight of these facilities is limited. There may also be, as constitutional law scholar and University of California, Berkeley, School of Law Dean Erwin Chemerinsky has recognized, a lack of political will to ensure the adequacy of prisons and jails.

When state and local leaders fail to adhere to their legal obligation to incarcerate people humanely, the Supreme Court has declared that judges have a responsibility to eliminate the ensuing legal violations, even if that involves wading into the sensitive sphere of correctional operation. Yet courts didn’t always wield such power.

From roughly 1865, a few decades after states began erecting their first penal institutions, until about 1900, the law deemed incarcerated people “slaves of the State” with virtually no rights to challenge institutionally cruel conditions. And from the turn of the 20th century until the mid 1960s, courts by and large spurned prisoners’ complaints, not because the lawsuits were filed by “slaves” but for lack of jurisdiction. This was called the “hands-off” doctrine. No matter how brutal the purported conditions nor how ruthless the prison or jail operator, the hands-off doctrine meant that federal judges — concerned about federalism, separation of powers, and a lack of penological expertise — thought themselves without power to decide prisoner cases involving correctional rules, regulations, and practices. Therefore, for more than 180 years of this country’s history, for one reason or another, state and local governments essentially ran correctional institutions as they saw fit.

But that began changing in the mid 1960s. As the civil and women’s rights movements gained momentum outside prison walls, deplorable conditions behind bars began attracting considerable notice in the federal judiciary. Assisted by jailhouse lawyers, Black incarcerated members of the Nation of Islam began to organize and filed federal lawsuits throughout the country alleging that prison officials were discriminating against them on religious and racial grounds by preventing them from exercising their faith. In 1964, the U.S. Supreme Court ruled in Cooper v. Pate that Muslim prisoners had legal standing under federal civil rights law to contest religiously discriminatory policies. The Cooper ruling, just four sentences long, marked a watershed. For one thing, it soundly rejected the dominant hands-off disposition and hostility of the courts toward prison litigation. For another, and most important, it wedged open the door for incarcerated people to legally challenge the conditions of their confinement in federal court.

Throughout the 1970s and 1980s, high-profile prison rebellions, like the Attica prison revolt of 1971, spurred the modern prison rights movement, forever reorienting the relationship between the federal judiciary and incarcerated people and their rights. Federal district courts were frequently finding that living conditions in correctional facilities violated the Eighth Amendment’s prohibition against cruel and unusual punishment, often focused on old, dilapidated facilities. To remedy the constitutional deficits, judges issued broad, detailed orders obligating the government to make sweeping improvements in conditions, touching essentially every facet of corrections. By the early 1980s, at least 43 states and the District of Columbia had at least one prison under court order or consent decree to reduce overcrowding or improve general conditions of confinement.

Momentous as this phase was, though, it was short-lived. Although Congress in 1980 had facilitated the filing of greater prisoner litigation with its passage of the Civil Rights of Institutionalized Persons Act, the Supreme Court during this same time began making it harder to hold jail and prison agencies accountable. Bothered by their lack of expertise in penal management and the propriety of unelected federal jurists managing public institutions, the Court counseled the enduring need for deference to prison operators and state legislatures thereby clarifying the scope of the federal judicial role in the operation of state and local corrections.

Then Congress acted. It passed the Prison Litigation Reform Act (PLRA), and in 1996, President Bill Clinton signed it into law. The PLRA sought to restrict prisoners’ rights litigation by making it harder both for prisoners to file and win lawsuits and for judges to respond to unconstitutional conditions. And it succeeded. Between 1995 and 1997, for example, federal prisoner civil rights filings fell by 33 percent, even though the number of incarcerated people during the same period grew by 10 percent.

Despite the PLRA’s limits, courts today still have a vital constitutional role in stamping out, as one judge put it, the “soul-chilling inhumanity” of the United States’ prisons and jails. While there is a rich tradition of writing that canvasses the history of prisoners’ rights, debates judicial authority to engage with correctional affairs, and analyzes outcomes in notable prison reform cases, relatively little attention has been devoted to exploring the range of judicial tools for addressing poor, unlawful penal conditions. This analysis highlights the possibilities and limitations of some of the most powerful tools at a court’s disposal to nudge — and when left no other choice, compel — government officials to fulfill their legal duty to treat people under their charge with basic human dignity.

Population Caps

When the federal courts began finding unconstitutional conditions of confinement, the most popular judicial intervention was the population cap, a restriction on the number of people who could be behind bars at a particular facility or parts of a facility at a given time. Overcrowding is often a prime driver of inhumane conditions behind bars in the United States. It undermines security and safety, stretches finite resources, and challenges the timely delivery of adequate medical and mental care and other vital services. Fewer people behind bars in theory better enables corrections personnel to meet the many and varied needs of people dependent on the state.

Prior to the PLRA, judges frequently ordered prisons and jails to limit their populations, and some of those orders remain in effect today. But the PLRA made it more difficult for courts to order population caps, so today they are issued less often. Specifically, reflecting lawmakers’ fears that judges were endangering public safety by “put[ting] thousands of violent criminals back on the . . . streets” to commit “vicious crimes,” the PLRA put an end to federal district judges’ ability to single-handedly order population caps. To issue such an order today, the PLRA requires the formation of a three-district-judge panel. The panel must find by clear and convincing evidence that overcrowding is the “primary cause” of a constitutional violation and that no other form of relief would remedy the violation. The three-judge court must also give substantial weight to any public safety implications before ordering a reduction in population.

Jurisdictions may comply with court orders reducing correctional populations in a variety of ways. Some respond to population caps by shifting incarcerated people out of overcrowded facilities. The consolidated federal civil rights cases of Plata v. Brown and Coleman v. Brown, which resulted in the largest court-ordered reduction of a prison population in U.S. history, provides an example. In 2005, a federal trial judge found that the depth and breadth of overcrowding within California’s prisons effectively precluded the delivery of timely and effective health care. According to one report, “on average, an inmate in one of California’s prisons needlessly die[d] every six to seven days” due to the system’s medical shortcomings. In 2011, the Supreme Court upheld against challenge a lower federal three-judge court order forcing California to reduce its prison population to 137.5 percent of design capacity.

To comply with the population cap, rather than expand prison capacity by constructing new facilities (which the state couldn’t afford), California’s primary response was the enactment of the Public Safety Realignment Act (Assembly Bill 109). A.B. 109 diverted the custodial responsibility for people convicted of nonviolent, nonserious, and nonsexual offenses from state prisons to county jails or moved them into probation.

While A.B. 109 remains an experiment in progress, there are some noteworthy developments. To begin, California prisons today house markedly fewer people, just over 95,000 as opposed to the 173,000 people it housed in 2006. In February 2023, a court-appointed agent reported that there had been “significant progress in improving the delivery of medical care in California’s prisons.” Still, the state’s prison system remains overcrowded, operating at nearly 120 percent of the capacity that the penal facilities were designed to accommodate.

In addition to A.B. 109, California took other steps to reduce its prison population. The state temporarily moved prisoners to Arizona, Michigan, Mississippi, Oklahoma, and Tennessee, a practice that it ended in June 2019. In 2014, California residents voted to enact Proposition 47, a ballot measure that reduced dozens of nonviolent property and drug crimes from felonies to misdemeanors and invested greater resources in victim services, schools, and treatment programs. Prop 47 has kept thousands of people out of prisons and jails and resulted in cost savings. In 2016, Californians approved another ballot measure, Proposition 57, which increased opportunities for people confined to state prisons to earn credit toward earlier parole through participation in rehabilitative programming. 

But these reforms, while a welcome development, have not been a panacea. Despite confining far fewer people, California’s prisons remain riddled with significant failures preventing timely and proper access to medical care. Moreover, A.B. 109 functionally transferred many of the state prisons’ overcrowding problems to the state’s county jails. In the first years after the passage of A.B. 109, county jail populations increased to near-historic highs. Violence, and homicides in particular, spiked in jails in the years after A.B. 109 took effect, and because jails had staffing, policies, and procedures meant to typically hold people for less than one year, they struggled to house a different population of individuals who were staying for longer periods.

Some jurisdictions attempt to cope with court-ordered population limits by embracing alternatives to incarceration. In 2008, after conducting an investigation, the Civil Rights Division of the U.S. Department of Justice (DOJ) notified officials at Illinois’s Cook County Jail of numerous potentially life-threatening conditions there, including environmental and sanitation deficiencies, excessive use of force, detainee-on-detainee violence, inadequate staffing, and insufficient medical and behavioral health care. Overcrowding exacerbated the unlawful conditions. The DOJ and Cook County officials settled the case, and the parties entered into a consent decree, with the county agreeing to make numerous changes to comply with constitutional standards. But the county failed to implement various internal policy changes, and overcrowding persisted.

In 2011, pursuant to the PLRA, a three-judge panel convened. The panel found that overcrowding at the Cook County Jail was a primary cause of the unconstitutional conditions of incarceration. After examining the long historical procession of judicial efforts that had failed to spur improvement at the jail, the judges found that an order releasing some individuals would be the least intrusive form of relief for overcrowding and would not endanger the community. Ultimately, the court approved an order granting the sheriff the power to release up to 1,500 people detained pretrial, substituting electronic monitoring for incarceration.

But rulings like these are not without controversy. While many advocates celebrate policies that reduce the number of people in brick-and-mortar prisons and jails, some advocates argue that the rules and practices of community supervision subject people under it to perpetual criminalization, surveillance, monitoring, and control.

In 2018, after Cook County had achieved and maintained substantial compliance with the consent decree, the parties asked the court to terminate the matter. The court agreed and closed the case. But conditions today are again allegedly poor; some detainees assert that they lack adequate access to rehabilitative programming, to hygiene products like soap, and to basic medical services. Allegations of excessive force by corrections officers are also an issue. Clearly, while judicial intervention can mitigate unconstitutional conditions in prisons and jails, once judicial oversight recedes, as the legal scholar Michele Deitch has noted, there’s no guarantee the government will remain committed to the reforms achieved during the judicial intervention period.

Some jurisdictions try to restrict the size of their correctional populations through a private settlement agreement. By entering into such an agreement, they can commit to imposing a population cap on a prison or jail without jumping through hoops imposed by the PLRA. Unlike a consent decree, a private settlement agreement, as understood by the PLRA, is “not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.” For example, in 2000, plaintiffs and the Placerville and South Lake Tahoe, California, jails agreed to resolve their differences through a private settlement agreement that placed limitations on the populations at the two California jails. Because this was a settlement, the parties didn’t have to comply with the PLRA’s population-cap provisions, like the formation of a three-judge panel. 

But a private settlement agreement limiting prison or jail populations also comes with some risk. Because a private settlement agreement cuts judges out of the picture as enforcers of the agreement, compliance necessarily depends on government’s willingness to cooperate as well as terms that hold it accountable for noncompliance. Indeed, under the PLRA, the only remedy for a breach of a private settlement agreement is “the reinstatement of the civil proceeding that the agreement settled.” The PLRA does provide, though, that litigants are free to challenge a violation of the private settlement agreement in state court.


Courts in the United States have an inherent power to ensure that parties obey court orders through findings of contempt. If a party is found in contempt, there are typically consequences, such as the imposition of a fine, and courts possess a great deal of discretion in fashioning appropriate yet stern sanctions for contempt. Contempt reflects the notion that courts don’t simply issue orders and hope for compliance; they have the capacity to punish disobedience.

Courts sparingly exercise the contempt power, reserving it for egregious instances of noncompliance when all other efforts to spur defendants into action have failed. All cases are inherently subject to the contempt power. Indeed, even after an order — including a consent decree — is filed in a case, courts retain the contempt power to enforce it. In considering whether to exercise the contempt function, courts typically weigh the nature and extent of the harm caused by continued noncompliance against the probability that a particular sanction will prevail in nudging the contemptuous party into cooperation with court orders.

Contempt, as well as the threat of it, can have numerous effects on jurisdictions that prove resistant to court orders. For instance, contempt rulings have pushed jurisdictions to construct new prison and jail facilities. In 1982, a federal district court prohibited government officials in Alabama from housing state prisoners in the Lauderdale County Jail for more than 30 days. The court entered this order to alleviate overcrowding at the jail, as the overpopulation was negatively impacting the health of the detainees. But Alabama failed to comply with the court order. So in 1991, the court held the Alabama governor and the state corrections commissioner in contempt. Responding to contempt sanctions, Lauderdale County constructed a new jail. It should be noted that although new corrections construction can help alleviate overcrowding, it can also produce negative consequences: when states and counties construct new correctional facilities to address overpopulation, a 2019 report by the Vera Institute of Justice observed, these jurisdictions routinely experience increased prison and jail populations because expansion by itself fails to resolve the underlying drivers of overcrowding.

Contempt has in some cases allowed judges to seize control of correctional institutions. For instance, in February 2022, disturbed by a “record number of assaults, fires, and deaths, including murders, suicides, and overdoses,” a federal district judge found Hinds County, Mississippi, in contempt for being out of compliance with “more than two dozen” provisions of a 2016 consent decree seeking to improve conditions at the county jail. The following month, after a two-week evidentiary hearing to determine the appropriate remedy for the first contempt finding, the judge again found the Hinds County government in contempt, observing that in some areas of the jail, staff members had ceded responsibility for housing matters and food distribution to the people incarcerated there, resulting in elevated violence and malnutrition. Although the county government had several months to show some compliance, the judge concluded in July 2022 that the government was “incapable, or unwilling” to resolve the jail’s dire problems. The judge seized control of the troubled institution and appointed a temporary manager in hopes of improving jail conditions such as poor lighting, defective doors, and overworked and inattentive staff. Hinds County has appealed the judicial takeover of its jail, and the Fifth Circuit Court of Appeals has put the takeover on hold pending review.

Sometimes the mere threat of contempt can nudge compliance. In 2016, parties to a consent judgment governing conditions at the Orleans Parish Jail in New Orleans averted a contempt determination by agreeing to have the court appoint an independent jail compliance director to operate the jail and address its shortcomings.

As another example, in June 2023, mere days before a federal judge was set to consider whether to hold Los Angeles County in contempt for failing to improve its local jail consistent with court orders, the county agreed to implement numerous reforms, including permanent limits on how long people can be held during processing and how long they can be handcuffed to benches.

Monitors and Special Masters

Special masters and monitors in prison and jail reform matters function as independent watchdogs empowered to assess compliance with court orders. Though they are similar, monitors and special masters are different creatures. Usually, a monitor can only access records, interview correctional staff, and engage with other sources of information deemed necessary to gauge compliance. A special master, on the other hand, may do the job of a monitor plus exercise quasi-judicial powers, like the power to convene and regulate hearings, help the court develop remedial plans, rule on the admissibility of evidence, subpoena and swear in witnesses, and hold noncooperating witnesses in contempt.

Judges often lack corrections expertise, but special masters and monitors can help them understand complex, intricate, and technical issues, such as how much, if any, progress the government is making toward eliminating constitutional violations. This enables judges to better manage complex prison and jail reform cases. For example, in 2015, a federal district judge in Alabama appointed an outside expert to serve as an independent monitor as part of the entry of a consent decree to eliminate poor conditions at the Julia Tutwiler Prison for Women, where for at least 18 years, according the Department of Justice, corrections officers had a worsening history of physical and sexual abuse and harassment of women in custody. The consent decree required Alabama to make several changes and was set to be in effect until the state largely complied with its terms. The monitor has helped the judge understand where and how the state has succeeded and where it has struggled in complying with the consent decree. 

Another reason for the appointment of monitors and special masters may be the government’s resistance to efforts by counsel for plaintiffs to monitor their compliance; monitors and special masters offer neutral, independent validation of progress. Federal statutory law, including the PLRA, governs the use of special masters, but state law on the matter is often vague, derivative, or nonexistent. The PLRA is silent on the use of monitors.

While monitors can accurately pinpoint problems in how prisons and jails function and help judges address those problems, they have no authority to act. The government must be willing and able to implement the terms of an agreement to make progress. Factors outside a court’s control can undermine the power of monitoring. For example, although the court-appointed monitor in the Tutwiler case indicated repeatedly that staffing vacancies could undermine prison security and safety, the state claimed it struggled to hire more staff in its prisons, blaming a tight labor market.

In another case, in 2005, a federal district judge appointed a special master to help the parties, particularly the government, find a solution to problems that had created unconstitutional conditions at the jail in Mahoning County, Ohio. The primary driver of the jail’s constitutional violations was severe overcrowding. The special master served for two years and filed seven reports providing findings and recommendations. One crucial recommendation, which the court adopted, was to convene a group of local officials that would meet regularly to craft a remedial plan to address the overcrowding problem. That group, of which the special master was a member, met for eight months, culminating in the entry of a consent decree.

Although the special master in the Mahoning case satisfied the court, judges may be reluctant to appoint special masters. Before the PLRA, judges commonly obligated state and local governments to pay special masters’ fees, but the PLRA mandates that courts compensate special masters from the judiciary’s own limited budget. The PLRA also caps special masters’ fees at the same level as court-appointed lawyers. Likely for these reasons, although special masters were hardly a widespread remedy prior to the PLRA, considerably fewer judges since the PLRA’s passage have sought to hire special masters.

Adjustment of the Government’s Powers

On occasion, prison and jail officials have claimed an inability to comply with court orders because of state or local laws, contracts, or regulations. In these instances, some judges have removed restrictions on and expanded the legal authority of prison and jail operators by abrogating state or local laws, contracts, and policies, thus empowering operators to come into compliance with court orders and the Constitution.

In December 2022, for example, a federal trial judge authorized jail officials in New York City to supersede state and local civil service and administrative law. The court-appointed monitor had repeatedly noted noncompliance with court orders relating to the supervision of staff. New York State and local laws narrowly define who may serve as a staff supervisor (basically a warden), essentially requiring that wardens be appointed from among the ranks of current staff. The government claimed that despite its best efforts — including petitioning the state government for help — it found it difficult to find candidates among its current personnel to fill the empty warden roles. So the city government, with the consent of all parties, asked the court for permission to hire wardens from outside the Department of Correction. The judge granted the department’s request, which was supported by the court-appointed monitor, for greater flexibility in hiring.

Prison and Jail Receivership

The judicial interventions described above, including the appointment of special masters and monitors, are designed to empower and encourage the government to comply with court orders. They implicitly mean that a judge has faith in the government’s ability and willingness to resolve constitutional deficiencies in its prisons or jails. But if a court determines that the government is unable to or unwilling to comply with court orders after less intrusive judicial interventions have fallen short, judges as a last resort may temporarily strip the government of control by imposing receivership. This procedure, with roots stretching back to the reign of Queen Elizabeth I, allows the judge to appoint an outside, neutral expert — a “receiver” — to manage a facility in hopes of reversing its constitutional deficiencies. Short of outright closure, receivership for prisons and jails is the most aggressive intervention in the judicial toolbox.

Prison and jail receivership is rare. Since 1979, when Alabama became the nation’s first jurisdiction to have a court divest it of the power to manage its own prisons or jails, judges have approved transfers of power away from local jail and state prison authorities only 12 times in the history of the United States. Nine of the twelve receivership cases focused singularly on jail operations, and only one was established by a state court judge.

Currently, the United States has three active prison and jail receiverships. Receivers are governing either some parts or all of California’s prisons, the Miami-Dade County Jail, and the Hinds County, Mississippi, jail, although the Hinds County receivership is on hold pending federal appellate review. And another correctional receivership may soon be imposed: the Manhattan-based federal court has ordered New York City officials and the Legal Aid Society, parties to the earlier-mentioned consent decree aiming to reduce violence within the New York City jail system, to present argument in November 2023 on whether the court should appoint a receiver.

Before a court can seize control of a prison or jail through receivership, the PLRA and decades of precedent require judges to be certain that receivership is necessary to address the constitutional violations in a case and that less intrusive alternatives do not exist. After a judge makes the crucial decision to order receivership, however, the judge has great discretion in designing it, although usually judges seek the input of the parties.

Receivers are not an instant-fix or cure-all — they come with risks and limitations. One limitation imposed by the PLRA on the structure, scope, and substance of a receivership is that a judge must craft it based only on the legal problems underlying a particular case; receivers can’t be roving federal court agents, setting out to fix every problem they find.

Jurisdictions, understanding their own limitations and the potential benefits of a federal court takeover, may embrace receivership as the most promising avenue for improving prison and jail facilities, as Miami-Dade County did in 2023 when it agreed to relinquish control of its jail operations. Occasionally, state and local governments may welcome judicial intervention to achieve certain political outcomes, such as greater funding from a legislature. In addition, governments confronting a likely receivership may wish to preempt it to try to shape its terms, as New Orleans did in 2016 when it agreed to transfer its power over its jail by way of a settlement agreement. 

In 1979, before he took office, Alabama’s governor-elect Forrest James Jr. had a series of off-the-record meetings with a federal judge who had been wrestling with Alabama state officials to improve conditions in the state’s prisons, where rampant violence and a “jungle atmosphere” prevailed. The governor-elect urged the judge to vest him with managerial power over the prisons and appoint him receiver. (Alabama law at that time delegated control over the prisons not to the governor but to the state Board of Corrections.) The judge agreed, stripping the corrections board of all authority and placing it in the hands of the incoming governor.

However, appointing a leader with a political agenda may undermine the object of a receivership. Rather than making decisions based on what’s best constitutionally, which should be the sole concern of any prison or jail receiver, a political figure may make decisions based at least in part on what’s best politically. Judges should thus think twice before appointing such a person as receiver.

Some receiverships exert only partial control over prisons and jails, while other receiverships assume total control. In 1979, a federal judge seized control of all operations of Alabama’s prisons because the prisons had lacked an effective management scheme “for the better part of two decades” — which wholly implicated prison governance. But judges tend to grant receivers only as much power as is necessary to eliminate the constitutional violations at issue. So if a prison system, like California’s entire system in 2005, or a jail, like Washington, DC’s in 1995, struggles to dispense proper and timely medical care to its population, for instance, a judge may decide to order a partial receivership. Unfortunately, whether a receivership is total or partial, once the government regains control of its facilities and the receivership terminates, there is no guarantee the government will fully commit itself to preserving the gains achieved during the receivership period. Conditions today in Alabama’s prisons, where 270 people died last year, and in Washington, DC’s jail are once again troubling. One reason may be that receiverships can institute reform that the government finds too costly to maintain. Although a receiver improved the DC jail’s medical care from 1995 to 2000, the government failed to maintain the reforms because of “exorbitant” costs.

Closure of Prisons and Jails

Prior to the PLRA, federal judges occasionally found a prison or jail beyond remedy and would order the government to close a facility — the atomic bomb of judicial intervention into corrections. For example, in 1975, federal judge Morris E. Lasker warned New York City jail officials that if the city failed to produce a plan or dedicate enough funding to remedy long-standing inhumane conditions, including filth, vermin, overcrowding, and poor heating and ventilation, at the Manhattan House of Detention, more commonly known as “the Tombs,” he would order the facility closed. Just after Morris’s decision, rather than improve conditions, New York City decided to close the Tombs, mooting the case, and it transferred the incarcerated population at the Tombs to Rikers Island.

Whether the PLRA would permit a federal court today to order the government to shutter a prison or jail is unclear. The Supreme Court has not had occasion to consider this question because no federal court has sought to close a prison or jail since the PLRA’s enactment.


When the political process fails to protect incarcerated people, federal courts play a necessary and important role in ensuring that humane conditions exist behind bars. They can and do make a difference. Courts can limit overcrowding. They can levy fines to encourage government compliance with its orders. They can even strip the government of the power to govern its own prisons and jails.

Yet the judicial enterprise is inherently limited. As the Supreme Court noted nearly a half century ago, courts lack the expertise and resources that exist within the legislative and executive branches of government to effectively manage penal institutions. Courts can’t appropriate taxpayer dollars. They can’t control for countless potential consequences that may affect their efforts, like the establishment of government policies and practices that worsen correctional conditions. Nor can courts ensure the permanence of reform they achieve after their involvement recedes.

If the government fails to fulfill its constitutional role of incarcerating people humanely — effectively outsourcing its responsibility to the courts — the judicial system may be left no choice but to intervene. If, however, the judiciary too fails to discharge its constitutional duties of defending incarcerated people against relentless unlawful treatment, that would dishonor this nation’s democracy, turning upside down the axiomatic constitutional promise that all of us, no matter our wealth, clout or station, are entitled to nothing less than equal justice under law.


The author expresses deep gratitude to Lauren-Brooke Eisen and Ram Subramanian for their strategic guidance of this paper as well as their careful revisions and insightful comments, Josh Bell and Elise Marton for their sharp editorial handiwork, Maris Mapolski for her detailed review and suggestions, and Tiffany Sanabia, Shona Hemmady, Emily Bauwens, and Kyle Hogan for their extensive research and analytical support.