Constitutional Law of Incarceration - Fall 2007
[for current announcements, click here]
November 13, 2007
For class on Thursday, please read the syllabus assignment on access to courts:
Ex parte Hull (U.S. 1941), pp.549-550; Procunier v. Martinez (U.S. 1974) pp. 552-554; Johnson v. Avery (U.S. 1969), pp. 558-562 (incl. note 1); Lewis v. Casey, again (U.S. 1996), pp. 566-576; 28 U.S.C. § 1915 (as amended by the PLRA). I may post a short excerpt on jailhouse lawyering; if I do that, it will be sometime on Wednesday.
November 7, 2007
For anyone interested, the hearing about the PLRA tomorrow will be webcast here, at 1:30 Eastern.
For Tuesday, we'll look at religion, again, this time focusing on statutory enforcement of religious freedom. Please read: Employment Division v. Smith [already assigned]; Religious Land Use and Institutionalized Persons Act ("RLUIPA"), as excerpted at pp. 544-545; also reproduced in pertinent part here; Cutter v. Wilkinson (also in your supplemental reading packet). I'll post Thursday's reading on Tuesday evening.
November 6, 2007
I'll post next week's reading tomorrow. For those of you who are interested, here is the web page with documentation relating to Thursday's hearing on the Prison Litigation Reform Act: http://judiciary.house.gov/oversight.aspx?ID=395
There's not much there yet, but it should have more by tomorrow. In the meantime, my testimony is here.
November 2, 2007
For Tuesday, we'll repeat the assignment for this past Thursday (Lemon, Williams, and Americans United). Please also read Employment Division v. Smith (which is linked, but NOT in your bound supplemental reading packet). I handed out Smith last week in class and also emailed it around.
Class is, as previously announced, cancelled for Thursday. There will be no makeup, because our prison tour was the equivalent of a double class session.
October 28, 2007
Here's some information for our upcoming prison trip:
- Very basic profile of FCI Greenville. http://www.bop.gov/locations/institutions/gre/index.jsp
- Information on types of Bureau of Prisons facilities: http://www.bop.gov/locations/institutions/index.jsp
- Policy Statements (BOP Policy): http://www.bop.gov/DataSource/execute/dsPolicyLoc
- Unit Management (policy statement): http://www.bop.gov/policy/progstat/5321_007.pdf
- Classification (policy statement): http://www.bop.gov/policy/progstat/5322_012.pdf
- Discipline (policy statement): http://www.bop.gov/policy/progstat/5270_007.pdf (unfortunately, this one seems not to be working right now).
See you Tuesday, Oct. 30, at 11:30 (sharp), on the first floor entrance to the Law School. Please either have eaten or bring lunch.
For Thursday, November 1, we'll continue with religion, looking this time at the Establishment Clause. Please read:
- Majority opinion in Lemon v. Kurtzman
- Williams v. Lara (Tex. 2001)
- Americans United for Separation of Church and State v. Prison Fellowship Ministries, Complaint.
Please think about the inevitable motion for summary judgment to be filed by the defendants in the Prison Ministries case; I'll ask you in class two questions. First, which applies, the Turner test or the Lemon test? Second, what should be in such a motion for it to win, under either standard? (Apologies for not listing this reading sooner; I hope nobody is terribly inconvenienced.)
October 19, 2007
For Tuesday, we'll do the part of the syllabus on race discrimination: Washington v. Lee (M.D. Ala. 1966), aff'd (U.S. 1968); Johnson v. California (U.S. 2005), pp. 667-679 (repeat); Lamar v. Coffield (S.D. Tex. 1977), consent decree;Article: Chad Trulson & James W. Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prison, 36 Law & Soc'y Rev 743. Optional reading: Lamar v. Coffield, 951 F. Supp. 629 (S.D. Tex. 1996). I think the non-casebook reading is in your supplemental reading packet.
For Thursday, we'll move on to the Free Exercise clause. As the syllabus says, please read: Cooper v. Pate (reprise); O'Lone v. Estate of Shabazz, pp. 532-541; and then several items on the Church of the New Song ("CONS"): Theriault (W.D. Tex. 1975); Remmers (S.D. Iowa 1973); N.Y. Times article (1972). Please also read Seattle Weekly article (2006), and the text (not the footnotes) of Kurtzer, Note, In the Belly of the Beast, 115 Harv. L. Rev. 1891 (2002) (this looks 25 pages long, but you can read just the text, not the footnotes, and it'll be much shorter). Again, this non-casebook reading is in your supplemental reading packet. [Note: Late addition communicated via email on 10/24: Sherbert v. Verner]
October 12, 2007
We will skip the section in the syllabus on the choice of sec. 1983 and habeas. For Tuesday, we'll look at strip search litigation. Please read Bell v. Wolfish, pp. 705-709. In addition, to get a sense of the general path of strip search litigation over the past 20 years, please read Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984); Kennedy v. Los Angeles Police Department, 901 F.2d 702, 710-716 (9th Cir. 1990), and Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-1450 (9th Cir. 1991). (Please note; I'm linking to the entire opinions, but only the pages listed are assigned.) To get a sense of the recent settlements in these kinds of cases, please also read the settlement agreements in two NYC strip search cases, Tyson and McBean: http://chadmin.wustl.edu/chDocs/public/JC-NY-0031-0001.pdf; http://chadmin.wustl.edu/chDocs/public/JC-NY-0033-0004.pdf.
I'll let you know about Thursday's reading on Tuesday, after we see how we do with the reading above.
October 6, 2007
Please note: On class on Oct. 2 (last Tuesday), we talked about two cases I had accidentally omitted from the prior assignment. Since they are short, and also since we went over them, I will consider you responsible for what's in them: Davidson v. Cannon, pp. 746-748 & Hudson v. Palmer, 751-752. (I'm adding them to the syllabus, too.)
For Tuesday, we'll read the materials assigned for the class that was cancelled: Wolff v. McDonnell (U.S. 1974), pp. 583-597; Sup't, MCI Walpole v. Hill (U.S. 1985), pp. 603-606, ABA materials, pp. 610-612. Please add, as well, Hewitt v. Helms, pp. 635-638.
For Thursday, please read Sandin v. Conner, pp. 625-632, and Wilkinson v. Austin, pp. 640-647. Please also read this document about supermax facilities.
October 1, 2007
As previously announced via email, for tomorrow, please read: Parratt v. Taylor (U.S. 1981), pp. 749-751; Daniels v. Williams (U.S. 1986), pp. 743-746; Zinermon v. Burch (U.S. 1990), pp. 752-758.
For Thursday, please read: Wolff v. McDonnell (U.S. 1974), pp. 583-597; Sup't, MCI Walpole v. Hill (U.S. 1985), pp. 603-606, ABA materials, pp. 610-612.
To repeat, the prison tour will be Tuesday, October 30, from 11:30 to perhaps as late as 5. This will count as two classes, so class will be cancelled on November 8.
September 21, 2007
Assignments for next week: On Tuesday, we'll finish up with the last assignment (18 U.S.C. 3626, and Miller v. French). We'll also get started on the next topic (our last in the broad area of constitutional remedies), which is Congress's authority under Section Five of the 14th Amendment to ameliorate and prevent unconstitutional prison conditions. Please read this (edited) chapter of Federal Jurisdiction, by Erwin Chemerinsky. For Thursday, please read United States v. Georgia, posted here. These are NOT included in your supplemental reading packet.
September 20, 2007
For purposes of our prison trip, please leave in my mailbox in Room 301 your full name, your date of birth, and your social security number. Alternatively, you can drop this off with my assistant, Rachel Mance, in Room 544.
I'll be sending an email around later today for your availability for our prison trip. I'm going to propose five dates: October 9, 11, 23, 30, or November 13.
I'll post next week's assignment tomorrow.
Have a good weekend.
Sept. 12, 2007
Next week, we'll finish up damages actions, and move on to injunctive actions. Please read Schlanger, Trends in Prison Lawsuits (2005), and Schlanger, Beyond the Hero Judge, 97 Mich. L. Rev. 1994 (1999) (excerpted -- and there's no need for you to read the footnotes) (these are also in the supplement packet, which, as mentioned below, should be available at Hi-Tec on Thursday Sept. 13). Please also read Lewis v. Casey, pp. 566-576, Rufo v. Inmates of the Suffolk County Jail, pp. 873-886 (this also includes some assigned notes), and Miller v. French, pp. 887-895. We'll also be discussing 18 U.S.C. § 3626, which was already assigned.
Sept. 7, 2007
For class on Tuesday, September 11, we'll continue with the unit on litigating Eighth Amendment cases. Please read the Prison Litigation Reform Act ("PLRA") -- in particular, 18 U.S.C. § 3626 (injunctions), 42 U.S.C. § 1997e (exhaustion and emotional injury), and 28 U.S.C. § 1915.
findings letter in the CRIPA investigation I mentioned in class on Tuesday, which is here. Please also read this short excerpt on time trends in prisoner lawsuits. We'll talk about the legal issues raised by the findings letter in the Daviess County CRIPA investigation, already assigned. As previously announced, CLASS IS CANCELLED ON THURSDAY.
I have at long last gotten the non-casebook reading to the copy shop. It should be available by Tuesday, for you to pick up at the Hi-Tec Copy Shop. [updated: 9/11 -- there's been a glitch. I hope this will be available on Thursday, but will keep you posted] Hi-Tec is located very close to the law school, at 375 N. Big Bend (at the corner of Big Bend and Forest Park Parkway). It is open Monday through Thursday from 8:00 a.m. until 8:00 p.m.; Friday 8:00 a.m. – 6:00 p.m.; Saturday 9:00 a.m. – 6:00 p.m. and Sunday Noon – 6:00 p.m.).
Have a good weekend.
Sept. 5, 2007
For class on Thursday, September 6, we'll continue with the Eighth Amendment. We'll talk about Farmer v. Brennan (U.S. 1994), pp. 803-08, and the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons (summary) (both already assigned). We'll begin to talk about constitutional remedies; please read 42 U.S.C § 1983, and the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq., and the findings letter in the CRIPA investigation I mentioned in class on Tuesday, which is here.
Have a terrific long weekend.
August 31, 2007
For class next week, we'll continue with the Eighth Amendment. We'll finish our discussion of Estelle and Rhodes, and also look at Wilson v. Seiter (pp. 802-03 & add'l excerpt), Hudson v. McMillian (U.S. 1992), pp. 816-21 & add'l excerpt, Helling v. McKinney (U.S. 1993), pp. 801-02 & add'l excerpt, and Farmer v. Brennan (U.S. 1994), pp. 803-08. Please also read Human Rights Watch, No Escape: Male Rape in U.S. Prisons (summary) & David Grann, The Brand, The New Yorker (Feb. 16&23, 2004).
Have a terrific long weekend.
August 28, 2007
For class on August 30, we'll continue with our reading on discretion, and begin the unit on the Eighth Amendment, which forbids the infliction of "cruel and unusual punishments."
Please review Jackson v. Bishop, again, pp. 811-815, and read Estelle v. Gamble (U.S. 1976), pp. 770-775, and Rhodes v. Chapman (U.S. 1981), pp. 788-798 (this includes notes on Bell v. Wolfish and Hutto v. Finney). In addition, for background on medical care in prison, please read Private Health Care in Jails Can Be a Death Sentence, N.Y. Times (Feb. 27, 2005).
August 15, 2007
Welcome to this class on the Constitutional Law of Incarceration. I've very excited about it, and hope you are as well. I'm looking forward to seeing you at our first class session on Tuesday, August 28, from 3:00 pm to 4:30 in room 403.
This class is an applied constitutional law class. (Please note that there are no prerequisites, beyond the 1L Constitutional Law I class.) We'll be exploring not only the various rights enforceable by prison and jail inmates, but also the way the courts and Congress have structured the relevant constitutional remedies. A course description and the syllabus are available on the "syllabus" page of this website (see the sidebar). If I can (depending on copyright restrictions and the like) I'll put all the assigned reading that isn't in the casebook on this site. Much of it is already there, on the syllabus page. In addition, I'll make the reading available in hard copy. But because the hard copy supplemental reading pack may not be ready for a few days, you may have only the posted version for the first class or two.
The syllabus does not have dates on it. For the actual assignments, by date, check this home page. I will communicate with the class by posting things here; please get in the habit of checking it a couple of times each week.
Finally, over the semester I will place various links on the "useful links" page. There are already some things there; check them out if you like.
Unless otherwise noted, all assignments are to the casebook, Lynn S. Branham & Michael S. Hamden, Cases and Materials on The Law and Policy of Sentencing and Corrections (7th ed. 2005). Please note; it's a full casebook; there's also a "nutshell" by the same authors with a similar title, whose 7th edition is also dated 2005. Don't buy the nutshell by accident.
Assignment for 8/28/07:
Please read the following background on levels of incarceration, etc.:
- Bureau of Justice Statistics on the prevalence of incarceration
- Materials on prisoners and demographics (numbers and race)
And also this brief discussion of the difference between jails and prisons
Primarily, on the first day of class, we'll begin our discussion of correctional administrator's discretion, which will continue throughout the course. I'm assigning four cases, not so much for the doctrinal approach to the specific issues raised, which we'll discuss again more substantively, but to canvass their views of discretion:
- Complete discretion: Cooper v. Pate, 324 F.2d 165 (7th Cir.) (subsequently rev'd, 378 U.S. 546 (1964)).
- Lots of discretion: Turner v. Safely (U.S. 1987), pp. 505-513 (in the casebook)
- Some discretion: Johnson v. California (U.S. 2005), pp. 667-679.
- Very little discretion: Jackson v. Bishop (8th Cir. 1968), pp. 811-815.