Restoring Objectivity to the Constitutional Law of Incarceration

Margo Schlanger Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan Law School

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In recent years, with the critical swing vote of Justice Kennedy, the Supreme Court recognized greater constitutional protections for pretrial prisoners who suffer injuries at the hands of jail officials. The Court even signaled that it might be willing to extend protection to post-conviction prisoners. Justice Kennedy's retirement makes this progress less likely, but still possible.

In Restoring Objectivity to the Constitutional Law of Incarceration, Professor Margo Schlanger describes how the Supreme Court in the 1990s took a wrong path, imposing a subjective standard of liability that made it more difficult for prisoners injured by unconstitutional use of force or conditions of confinement to hold prison officials accountable. She also describes how the 2015 case Kingsley v. Hendrickson, in which Justice Kennedy served as the critical fifth vote for the majority, reverted to prior, objective doctrine for pretrial detainees.  Schlanger argues that a logical and consistent doctrine for prison litigation requires the Court to extend the Kingsley holding to use-of-force and conditions-of-confinement litigation brought by convicted prisoners.