Response: One Market We Do Not Need

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive our overgrown system of incarceration. Just when it seems the United States may finally be turning away from its over-reliance on incarceration, Professor Volokh\u27s prison vouchers proposal runs the risk of kick-starting prison growth

Exhausted

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with the statute. More generally, the Article argues that we should take administrative law seriously in the corrections context

Illich (Via Cayley) On Prisons

This Article considers whether, more than a dozen years after publication of Cayley’s book The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment

ILLICH (VIA CAYLEY) ON PRISONS

This Article considers whether, more than a dozen years after publication of Cayley’s book The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment

Visiting Room: A Response to Prison Visitation Policies: A Fifty-State Survey

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following other nations’ lead in visitation polices will not necessarily increase visitation. Also, liberal visitation policies run the risk of reinforcing the “prison-industrial complex” and normalizing mass incarceration in American culture. But the experiences of other nations demonstrate that liberalized visitation could change American criminal justice for the better

What We Can Learn About Appeals From Mr. Tillman\u27s Case: More Lessons From Another DNA Exoneration

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman\u27s case is a paradigmatic DNA exoneration-involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This Article uses the published opinions affirming Mr. Tillman\u27s conviction-particularly his direct appeal to the Connecticut Supreme Court, and his appeal from the state habeas proceeding-to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman\u27s exoneration reveal any problems with appellate litigation, or is it the product of mistakes in investigation and adjudication that are beyond the purview of appellate courts? There is no question that the root causes of Mr. Tillman\u27s wrongful conviction must be addressed at the investigatory and trial level. In this Article, the Author argues that state appeals courts play an important role in signaling the types of issues that should concern judges, prosecutors, and defense attorneys. Certain features of appellate review that appear in the Tillman opinions-heavy reliance on tools that the Author describes loosely as harm-type and preservation-type analyses, as well as deferential ineffective assistance of counsel standards---can contribute over the long-term to local criminal justice cultures that fail to guard adequately against wrongful convictions

Visiting Room: A Response to Prison Visitation Policies: A Fifty-State Survey

In 2013, Sesame Street introduced its first Muppet with an incarcerated parent, Alex. Also this year, U.S. Attorney General Eric Holder acknowledged that too many Americans go to too many prisons for far too long and for no good law enforcement reason. With this Feature in the Yale Law & Policy Review, Chesa Boudin, Trevor Stutz, and Aaron Littman bring long-overdue attention to prison visitation, which affects so many American families, and especially the children of the incarcerated. The authors\u27 important effort could help to undermine the radically isolating style of imprisonment that has developed in the U.S. during an era of mass incarceration, in which visitation is markedly restricted compared to other advanced democracies

Double-Edged Paring Knives: Human Rights Dilemmas for Special Populations

The United States makes up only 5 percent of the world\u27s population, but it incarcerates 25 percent of the globe\u27s prisoners. This unprecedented level of incarceration has brought increased attention to the problems of particular subsets of prisoners sometimes called special populations. These groups include female prisoners; lesbian, gay, bisexual, transgender (LGBT), and questioning inmates; older prisoners; and prisoners with mental illness and physical disabilities. This Article discusses human rights dilemmas in the treatment of special populations in prison. The Article surveys ABA Standards and Resolutions that bear on special populations. While ABA Standards do not have the force of law, they can serve as models for jurisdictions seeking to enact best practices, and as a resource for advocates. Standards governing the management of special populations may be necessary to ensure humane treatment and avoid victimization and loss of life. However, they can be controversial, even among human rights advocates. There are two types of critiques: that reforms perpetuate stigma and stereotypes and that reforms reinforce our reliance on prisons. These controversies expose tensions regarding the role of prison conditions reform in the vast American corrections system. The economic crisis may be pointing us toward new solutions to these dilemmas. There is a push to reduce incarceration-related expenses by reducing harsh sentences, even in some states that are traditionally tough on crime. Reducing the number of U.S. prisoners will provide the most lasting resolution to the human rights issues

In the Box: Voir Dire on LGBT Issues in Changing Times

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT rights movement remains a cultural flashpoint. In part due to the work of LGBT advocates, more cases involving LGBT issues and sexuality are likely to enter the criminal legal system. These could involve alleged harassment or bullying, like the Dharun Ravi case, or hate crimes against LGBT people, which may be on the rise even as LGBT rights advance. As stigma lessens and more complainants come forward, there also may be more claims of same-sex sexual assault or intimate partner violence In many of these cases, defense attorneys or prosecutors will seek to voir dire jurors regarding their attitudes toward LGBT people and sexuality. At the same time, LGBT venirepersons may fear discrimination in voir dire. In 1998, Paul Lynd wrote that prospective jurors who revealed that they were gay faced employment discrimination or even criminal prosecution under then-extant sodomy laws. Today, Lawrence v. Texas has largely eliminated criminal stigma, and some jurisdictions have LGBT anti-discrimination protections. Nonetheless, depending on the jurisdiction and the context, prospective gay jurors might still fear public outing, and only a few jurisdictions protect jurors from peremptory strikes based on sexual orientation. This paper examines the complex and varying situations in which LBGT issues may surface in voir dire and offers suggestions for navigating this contested terrain