Incarceration and the Law, Cases and Materials

Margo Schlanger, University of Michigan Law School

David M. Shapiro, Northwestern University School of Law

Lynn S. Branham, University of Missouri-Columbia School of Law

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Pages from SCHLANGER_INCARCERATION_11TH_ACB_LSE.pdf

Companion Site

• Expanded central Supreme Court cases throughout
• Updated statistics, particularly in Chapter 1 ("Prisons, Jails, and Prisoners' Rights: An Introduction")
• Chapter 2 (“Conditions of Confinement”) includes new COVID litigation material including key cases on the ongoing contraction of the deliberate indifference standard. Deliberate indifference also gets a new principal case, Rasho v. Jeffries (7th Cir.). The chapter also includes some new notes on the deepening circuit split relating to Kingsley v. Hendrickson and the appropriate liability standard in pretrial conditions cases.
• Chapter 3 (“Solitary Confinement”) adds recent Supreme Court separate writing as well as materials relating to state-level reform efforts, focusing on New York State’s 2021 Humane Alternatives to Long-Term Solitary Confinement Act.
• Chapter 4 (“Programming, Work, and Reentry”) now describes the federal government’s prison Pell Grant expansion.
• Chapter 5 (“Sexual Abuse”) has numerous changes including a note on retaliation claims. The Chapter also now excerpts some competing scholarly views on the usefulness of the Prison Rape Elimination Act. In addition, while the chapter still features Graham v. Sheriff of Logan County (10th Cir.), that case has been significantly shrunk. This Chapter also adds material on federal criminal prohibitions on sexual contact between staff and incarcerated people.
• Chapter 7 (“Freedom of Expression and Religion”) adds: notes on what remains of Procunier v. Martinez, and of prison visitation protections after Overton v. Bazzetta; dueling scholarship excerpts on the (in)coherence of prison law; a lengthened excerpt from Holt v. Hobbs; and excerpted language from Ramirez v. Collier (in which the Supreme Court found that RLUIPA compelled the State of Texas to grant a death-sentenced prisoner’s request that his pastor be admitted to the execution chamber).
• Chapter 8 (“Access to Courts”) adds an excerpt from the new book by exoneree Calvin Duncan and Sophie Cull, The Jailhouse Lawyer.
• There’s a new note in Chapter 9 (“Procedural Due Process”) on the challenge from the right to Mathews v. Eldridge, and another new note on the Supreme Court’s trio of prison negligence cases, Parratt v. Taylor, Daniels v. Williams, Davidson v. Cannon.
• The Trump Administration’s immigration enforcement has prompted some revamping of the section of Chapter 10 (“Race and National Origin Discrimination”) relating to immigrant prisons and national origin discrimination.
• With Supreme Court elimination of federal constitutional protection of abortion rights, Chapter 11 no longer discusses abortion (“Women Prisoners”). That same chapter also has new material related to the landmark settlement in the systematic sex-abuse case involving the Federal Correctional Institution in Dublin.
• Chapter 12 is substantially reorganized and supplemented (“LGBTQ Prisoners”) to provide materials relating to the topic of transgender prisoners, including the Trump Administration’s relevant executive order and resulting litigation.
• Chapter 13 (“Disability”) has been edited to clarify some topics, and updated for the ongoing contest about the ADA’s integration mandate and its scope.
• Chapter 14 (“Injunctive Litigation”) is updated for the evolving law relating to the boundary between habeas and injunctive lawsuits. It also adds some Prison Litigation Reform Act developments, and a new short section on the PLRA and preliminary relief.
• Chapter 15 (“Damages: Causes of Action and Defenses”) includes appropriate treatment of the Supreme Court’s newly comprehensive skepticism of the Bivens implied damages cause of action against federal officials, and updates and augments the presentation of qualified immunity.
• Chapter 16 (“The Litigation Process”) updates coverage of the PLRA’s requirement of exhaustion of prison grievance systems.
• Chapter 18 (“Criminal Prosecution”) no longer covers Maryland v. Hickson, a major conspiracy prosecution of Baltimore jail staff—because the state recently dismissed the case without formal explanation.
• Chapter 19 (“Accountability: Voting, Standards, and Oversight”) significantly reorganizes and rewrites the section on voting, including by covering the Florida fight over felon reenfranchisement.
• The book more thoroughly engages state law—both statutory and case law—within the topic-specific chapters and also in an entirely new Chapter 20 (“State Constitutional Law”), which looks at the prospects of more-prisoner-protective state constitutional law.

Learn more about this series.