Carceral Deference: Courts and Their Pro-Prison Propensities

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to bringing the origins of carceral deference out of the shadows, revealing the story of institutions wrestling for control and unbridled dominance that has not, until now, been fully told.

Carceral deference plays an enormous role in the constitutional ordering of state power, as well as in civil law’s regulation of punishment, a force that is often neglected within the criminal law paradigm. Understanding how the foremost judicial norm in the prison law space developed gives us a foundation from which to better examine and critique the distribution of power among prisons, courts, and incarcerated people and the propriety of deference to prison officials; further informs our understanding of the systemic and structural flaws of the criminal punishment system; and adds to a growing body of literature analyzing the role of expertise in constitutional analyses across dimensions.