The Absence of Dignity in Prison Law

Zina Makar

Prisoners are among society’s most vulnerable, and they face the greatest deprivation of civil liberties. This Article advances a new theory of carceral deference that accounts for the diminished rights protections of incarcerated individuals by applying a trans-contextual analysis of constitutional borrowing. In brief, constitutional borrowing is a form of interpretative decision making where courts take principles from one established domain and transpose them onto another domain, typically for the purposes of creating legitimacy and where established precedent may be lacking. This Article reveals this phenomenon occurring between student law and prison law and how it is used to undermine prisoners’ rights.

Students’ and prisoners’ rights cases frequently cite to one another in seemingly odd, uncomfortable, and haphazard ways. Beyond the facially bizarre references, one reason for this doctrinal connection might be for the purposes of borrowing principles of institutional deference. By comparing the doctrinal connection between these two domains and testing the legitimacy of borrowing, this Article argues that prison doctrine selectively adopts incomplete principles that convey notions of institutional deference from students’ rights cases to increase deference in the carceral environment. But what is present in students’ rights cases, and noticeably absent in the prisoners’ rights context, is the preservation of individual dignity. Dignity plays a critical role, because without it, this scheme of selective borrowing materializes as a devaluation of key safeguards that are necessary to protect prisoners’ civil liberties.

This Article makes three critical contributions to the current scholarship on prison law. First, this Article presents a novel and alternative theory to account for the origins of carceral deference. Understanding carceral deference through the lens of selective borrowing reveals that the notion that prison law must necessarily be a standalone doctrine is false. Second, by viewing prison law trans-contextually, this Article finds that the selective constitutional borrowing that permeates prison law leads us to question whether prisons are laboratories for fostering indignity. Finally, this Article reveals the harsh consequences of heightened deference in prison law and how such deference fundamentally alters the obligations that states owe to their prisoners. This Article makes evident that a key barrier that separates prisoners from society is not just the prison walls, but the law itself.