Liman Public Interest Workshop


Imprisoned: From Conception And Construction to Abolition

Spring 2021 Syllabus

Mondays, 6:10-8 pm, Room 124

Instructors

Justin Driver, Professor of Law

Jamelia Morgan, Liman Senior Affiliated Scholar, Associate Professor of Law, University of Connecticut School of Law

Judith Resnik, Arthur Liman Professor of Law

Zal Shroff, Liman Senior Fellow in Residence

Student Directors

Hannah Duncan, Jaster Francis, Molly Petchenik

Summary

The numbers of people in jails and prisons rose substantially from the 1970s through the present resulting in more than 2.2 million persons detained in 2020 in these facilities.1 In addition, data from the U.S. Bureau of Justice Statistics from 2018 identified more than four million people on probation, parole, and the like were under supervision, and even as in some jurisdictions detention populations had leveled off or declined somewhat, one in 40 American adults was under correctional supervision.2

Incarceration does not have the same impact on all who live in the United States – both in terms of the likelihood of being victims of crime and the likelihood of being in detention. Race, gender, class, age, nationality, ethnicity, health, and ability interact to make subgroups more vulnerable to experience both. Many studies have documented that people of color are disproportionately affected by discriminatory law enforcement practices.3 In 2020, black men were six times as likely to be incarcerated as white men; African Americans and Latinos constituted more than 60% of the people imprisoned.4 Moreover, communities of color currently bear the brunt of COVID-19, which puts people in all forms of congruent housing at heightened risk of illness and death.5

This Workshop considers the political, legal, and moral dimensions of incarceration, as it dominates responses to behaviors deemed criminal. We will address the role that courts have played in normalizing conditions in prisons, the perspectives of those who live in prisons, work in prisons, direct prisons, and of their families and communities. Our topics include the ideas that animated the “invention of the penitentiary” in the eighteenth century as a great “reform,” the justifications for its totalizing control, the emergence in the wake of World War II and the civil rights revolution of prisoners’ rights; in-prison punishments such as solitary confinement; and growing concerns about the costs — dignitary, social, political, and financial — of the system now in use. When doing so, we will look at actions by government officials (judges, legislators, executive officials) and by non-governmental organizations and by communities and social movements. Our materials reflect this array as we assign both U.S. and non-U.S. law, map some of the history of professional “standard-setting” (the 1934 Guidelines of the League of Nations; the European Prison Rules of the Council of Europe; the 2015 U.N. Standard Minimum Rules for the Treatment of Prisoners (“the Nelson Mandela Rules”); and analyze a mix of court decisions and commentary. Our questions include the effects of critique and of oversight by prisonesr and their communities, courts, legislatures, and other actors, as they shape and debate the parameters of permissible sanctions, the conditions of confinement, and remedies including proposals to abolish prisons as a form of punishment.


1 Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POLICY INITIATIVE (Mar. 24, 2020), available at https://www.prisonpolicy.org/reports/pie2020.html.

2 Laura M. Maruschak and Todd D. Minton, Correctional Populations in the United States, 2017-2018, U.S. Dep’t of Justice, Bureau of Justice Statistics (August 2020), available at https://www.bjs.gov/content/pub/pdf/cpus1718.pdf.

3 See, e.g., Elizabeth Hinton, LeShae Henderson, Cindy Reed, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System, VERA INSTITUTE OF JUSTICE (May 2018), available at https://www.vera.org/downloads/publications/for-the-record-unjust-burden....

4 Trends in U.S. Corrections, The Sentencing Project (Aug. 2020), at 4, available at
https://www.sentencingproject.org/wp-content/uploads/2020/08/Trends-in-U...

5 Double Jeopardy: COVID-19 and Behavioral Health Disparities for Black and Latino
Communities in the U.S., U.S. Substance Abuse and Mental Health Services Administration (2020), available at
https://www.samhsa.gov/sites/default/files/covid19-behavioral-health-dis....
 
Requirements, Credits, and Readings

We aim to have an engaged discussion among all members of the class about these hard topics. The syllabus aims to provide an overview and some depth; we will not assign all of the materials listed; in advance of each session, we will explain which readings are required and which are optional.

We expect that students attend the weekly class meeting and prepare in advance. To be clear, preparation for and attendance at these discussions is required for credit. Do note that, if you need to miss a class, please be in touch with the professors in advance of the meeting. 
Whether taking the class for graded or ungraded credit (explained below), students missing more than two sessions without permission will not receive credit.

We provide packets of readings for each week’s class. If choosing to take the Workshop credit/fail, a student must submit written reflections four times during the semester - after the first two sessions. The reflections should comment on and discuss the relationships among the materials assigned. The reflections should be no more than two-pages (double-spaced, size-12 font). The point of these submissions is for both other students and the instructors to be able to read your comments in advance of the class, so that discussions can build from these exchanges.

Students must send by email to each of the instructors (our emails are listed below) and to Elizabeth Keane, the Liman Center Coordinator (elizabeth.keane@yale.edu), as well as post their reflections on Canvas in the “Discussion” tab, so that other Workshop participants can read them. Please do so NO LATER than Sunday at 1 p.m. before that week’s session. Students who do not complete and send reflections four times during the course of the semester will not receive credit for the class.

If a student wants two graded credits, the requirement is that, in addition to the four reflections, a student must write a responsive essay of no more than 4,000 words during the examination period. Students who select this option will be provided with specific questions and directions that will require them to draw on the course materials and class discussions. NO additional research is to be done.

A third option requires specific permission of the instructors, and that is to write a paper as either a Supervised Analytic Writing or a Substantial Paper. Students seeking to do so must also complete the four reflections. A proposed topic needs to be submitted by the fifth week of the semester. Our concern is that the issues proposed to be analyzed are clear and that materials are available to do the requisite research. Thereafter, students need to meet with instructors to determine the feasibility, possibly to revise the proposal, and then to agree upon a research plan and schedule.

In addition, this class may be audited with permission of the instructor; doing so requires regular attendance. Visitors, with permission, are also welcome.

Students with documented disabilities should contact Yale University Student Accessibility Services by email to the director, Sarah Scott Chang (sarah.chang@yale.edu), to request accommodation for examinations or other course related needs. Student Accessibility Services will work directly with the Registrar’s Office on accommodations.