Con Reynolds, Counsel to the Chair, U.S. Sentencing Commission, has posted The Original Role of Article III in Federal Imprisonment. The article is forthcoming in the University of Pennsylvania Law Review:
Since the late 1970s, the Supreme Court has pushed federal courts to defer to prison administrators. This deferential attitude and its justifications-namely, administrator expertise, the limited rights of prisoners, and the separation of powers-are packaged in a protective layer of history and tradition, with the Court framing deference as a return to Article III's original "hands-off" role in prison affairs. This approach has exposed countless people to abuse and neglect behind bars, especially those living in the nation's largest prison system: the Federal Bureau of Prisons.
This Article challenges this deferential attitude and its underpinnings by recovering Article III's historical place in federal imprisonment. It unearths forgotten statutes and case law that authorized early federal courts to oversee and modify conditions of federal confinement. And by mining digital newspaper archives, it recovers over 650 instances of Article III playing this interventionist role from the Founding through the mid-20th century. Beneath these powers and practices lay the belief that Article III's core function was to set a floor and a ceiling of life and liberty behind bars for those it imprisoned.
These findings upend justifications for judicial deference to prison administrators, especially in the federal context. Article III's original role, in theory and in practice, was to cabin federal prison administrator discretion, rather than affirm it. This role reflected ideas opposite the ones animating deferential attitudes today-namely, that incarcerated people and the state incarcerating them owe duties to one another, courts have special expertise in defining and enforcing those duties, and their doing so both respects the separation of powers and fulfills its end of thwarting tyrannical concentration of power.
--Dan Ernst
