Scholar argues that regulatory standards governing free society should protect incarcerated people.
Six people incarcerated at a Virginia state prison reportedly set themselves on fire in 2024 in an effort to escape the “inhumane conditions” at the prison, according to a cellmate of two of the individuals.
In response to the incident, the Virginia Legislative Black Caucus released a statement condemning the prison’s treatment of incarcerated people, noting reports of “medical neglect” and “inedible food having been covered in maggots and officers’ spit.”
Reports of mistreatment extend beyond Virginia and have raised questions about how to reform conditions in U.S. prisons. Aaron Littman of UCLA School of Law argues in an article published in the Yale Law Journal that enforcing “free-world regulatory law” in prisons would improve the day-to-day lives of incarcerated people. “Free world regulatory law” refers to laws governing labor, public health, consumer protection, and other areas of regulation.
Littman contends that U.S. prisons “exist” in a “deregulatory state of exception.” In this state, the regulations protecting free people—such as those requiring uncontaminated food and drinking water—often do not protect incarcerated people.
Some state laws create an “exemption” for incarcerated people, placing them outside of the protection of health and safety laws. For example, some medical licensure laws allow physicians with restricted licenses to provide care to incarcerated people. This type of carve-out has authorized physicians with histories of illegal drug distribution, intoxication on the job, and sexual assault to provide health care to incarcerated people.
Even if states do not exclude incarcerated people from protection, regulators sometimes overlook misconduct or forgo any “remedial action,” Littman adds. In Arizona, despite food-safety inspectors discovering prison “kitchens rife with dead cockroaches” and “expired meat being served to prisoners,” every facility still “passed their inspections with satisfactory ratings.”
Perhaps some regulators believe that intervening in prisons would be beyond the scope of their authority, Littman argues. For instance, he discusses a case in which an Oregon state fire marshal found hazardous conditions in a prison, but ultimately chose not to pursue legal action.
But regulators do not deserve all the blame, Littman contends. Sometimes, prison officials and corrections officers avoid implementing regulatory standards—a phenomenon that Littman refers to as “obstructionism.” In Ohio, a medical contractor declined to conduct COVID-19 testing on incarcerated people, defying orders from local officials. This type of defiance can also be “covert,” he asserts. For example, in Alabama, corrections officers told kitchen workers to discard rotting meat before food-safety inspectors arrived.
But why do incarcerated people not receive the protections of regulatory law? The answer is not simple, Littman suggests. The “deregulatory state of exception” may derive from a false premise that the state takes care of incarcerated people, he observes. Or perhaps it reflects the view that incarcerated people should face adversity. Either way, he concludes that the justifications for excluding incarcerated people are “likely numerous and varied.”
In addition to examining the motivations for deregulating prisons, Littman notes that scholars often analyze prison conditions through the lens of constitutional law. But he argues that constitutional rights, in practice, provide few safeguards for incarcerated people.
Constitutional law establishes baseline protections for incarcerated people, above which almost anything goes, he explains. “Maggots in macaroni, doctors who have been disciplined for sexual assault,” and “phone calls that cost more than a dollar per minute” have all withstood constitutional scrutiny.
Littman argues that regulatory law, unlike constitutional law, can ensure better treatment of incarcerated people. For example, he observes that a court grappling with a constitutional question does not conduct a cost-benefit analysis, a common practice in regulatory policymaking. When assessing prison practices, regulators evaluate the broader effect on society using data. Take the case of prison phone call rates. When examined through a regulatory lens, allowing prisons to enter service contracts that charge incarcerated people excessive rates for phone calls is “bad public policy” because the social cost is substantial, Littman explains. People stop talking to their families, which studies show results in “recidivism” and “disciplinary infractions.”
In addition, regulatory law offers precise solutions whereas “constitutional prison law is averse to strict line drawing,” he argues. The U.S. Supreme Court, for instance, often defers to states to rectify unconstitutional prison conditions, but a food-safety inspector, empowered by regulatory law, does not need to do so. He explains that if a prison kitchen does not meet a standard for food safety, the inspector can “order” prison officials to rectify the problem.
Although regulatory law can improve prison conditions, Littman argues that change ultimately depends on regulators’ willingness to “insist” upon better treatment of incarcerated people.
