What\u27s Going on in Our Prisons?

Additional governmental oversight is urgently needed to truly change the culture of a system that holds 53,000 inmates across 54 prisons in New York State. What goes on inside these prisons is largely hidden from view, and there is little accountability for wrongdoing. The State Legislature should follow the A.B.A.’s guidance and establish a monitoring body with unfettered access to prison facilities, staff, inmates and records in announced or unannounced visits

I Am Opposed to This Procedure : How Kafka\u27s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons

This is the 100th anniversary of Franz Kafka\u27s In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison\u27s operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight. At the core of America\u27s vast prison system is the pervasive practice of solitary confinement, a practice that in many ways is analogous to the penal colony machine. Like the machine, it inflicts great psychological and often physical pain on people subjected to it. It, like the machine, is used to punish people for trivial offenses without due process. Like the machine, it is seen as essential to the operation of this closed prison system. Many of the new leaders of American prisons want to reform solitary confinement practices, but like the new Commandant in Kafka\u27s tale, without oversight, these leaders operate in the dark, unable to effectuate meaningful change by themselves. Kafka knew what he was talking about. The historic record, reviewed in this Article, demonstrates that Kafka had a notable legal career as an attorney at the Workers\u27 Accident Insurance Institute for the Kingdom of Bohemia in Prague. In that job he worked on behalf of industrial workers to open closed worksites to oversight, thereby improving worker safety and preventing needless accidents. These experiences gave Kafka a realistic understanding of what can happen in closed, unregulated institutions such as prisons. Despite the relevance of In the Penal Colony, Kafka\u27s voice has not yet been heard in this debate. This Article is intended to fill that void and to reveal how Kafka\u27s profound insights, so artfully crafted in the powerfully beautiful prose of In the Penal Colony, help us understand why we must open prison doors to outside scrutiny and put an end to the gruesome practice that is solitary confinement

Dying Twice: Conditions on New York\u27s Death Row

In 1995 New York State revived the death penalty as a punishment for certain categories of murder, and established a “death row” for condemned men at the Clinton Correctional Facility in Dannemora, New York (variously, “Clinton” or the “Prison”). Four years later, in October 1999, two committees of the Association of the Bar of the City of New York (the “Association”) joined together to study the conditions of confinement on this death row--or, as it is officially called, the Unit for Condemned Persons (the “UCP”). These committees--the Committee on Corrections and the Committee on Capital Punishment--formed a joint subcommittee (the “Subcommittee”) to study, assess, and report on the conditions under which death row prisoners await their execution. This is the report of that Subcommittee

Court-Ordered Foster Family Care Reform: A Case Study

The authors examine the implications of G. L. v. Zumwalt, a case that resulted in a far-reaching consent decree that mandates specific reforms in policy and practice to be implemented by a public social welfare agency in its delivery of services to foster children and their families

Getting Real About Race and Prisoner Rights

This Article explores the connection between the dramatic increases in the incarceration of non-whites and the parallel decline in the legal protections for prisoners over the same period. Using the social sciences, the Article suggests that racial tensions play a role in the decisions made by both guards and prison administrators. Further, the authors argue that the communities of these non-white prisoners are the least well equipped to advocate for their well-being. Ultimately, the Article concludes that the law is not currently equipped to confront the possibility of dealing with race-based tensions and structural inequities that are present in the prison system. The authors call for the courts to reassert their role in protecting discrete and insular minorities that lack access to the political power necessary to assert their rights. The Article concludes by making five specific suggestions for reform

Bound and Gagged: The Peculiar Predicament of Professional Jurors

A physicist sits as a juror in a murder case. The victim is a six-year-old boy. The cause of death: a screwdriver driven into the boy\u27s chest. The boy\u27s father, who is charged with murder, claims the boy accidentally tripped and fell onto the screwdriver in the bathroom. In support of this theory, the defense calls an expert witness, a physicist who testifies that-given the physical characteristics of the entry wound and the way objects are propelled through space-it is unlikely the boy was intentionally stabbed. The physicist juror disagrees, and during jury deliberations he suggests that the calculations the expert witness presented do not support the defense\u27s conclusions. The jury convicts

Unlocking the Courthouse Door: Removing the Barrier of the PLRA’s Physical Injury Requirement to Permit Meaningful Judicial Oversight of Abuses in Supermax Prisons and Isolation Units

In recent years the number of inmates held in isolation in American prisons has increased dramatically. At the same serious abuses have occurred in these isolation units. These abuses, which include subjecting inmates to degrading, humiliating and unnecessary suffering, often do not cause physical injury. Even though constitutional rights are violated by these acts, federal courts have often failed to provide relief to victims of these abuses. The reason is that the Prison Litigation Reform Act (PLRA) deprives federal courts of the ability to provide relief from degrading and even torturous behavior if there is not physical injury. This article calls for the repeal or reform of the physical injury requirement of the PLRA so that the ability of federal courts to provide meaningful remedies for violations of the United States Constitution can be restored