The Problem Punishment Poses for Democratic Orders: Ruination and Rights

The following is a transcript of a panel at “State Constitutions and the Limits of Criminal Punishments,” which took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024. The transcript is edited for clarity.

Speaker:

• Judith Resnik, Arthur Liman Professor of Law, Yale Law School

Judith Resnik: Thank you, Kyle and Robert and all the conveners, and Alicia. I thought it might be useful to pause to think about the challenges that are faced when people are asking for rights-bearing status, for people who are called prisoners, or incarcerated people, or in detention, or a variety of other descriptions. And so I want to give you a little bit of an overview of how, why, and when the idea of prisoners as rights holders came into being. What does or could it mean for people to have rights? And when, in this border crossing that we’ve been discussing, which is — state, state, state, federal, federal, federal — how there are more borders to be crisscrossed to potentially be useful.

This is a transatlantic narrative, because the practices of punishment in the United States come from transatlantic. I’m now in 1902, in a prison in England, and this dreadful picture is of men on a treadmill, tread wheel, they call it, endless, seven steps going like this. The degrading, terrific, horrific punishment is commonplace around the United States, I am sorry to report, and around Europe, and through colonialism and via other forces around the globe.

And so just a snapshot of the thing called “corrections,” or the prisons facilities that we take, for some sense, for granted today, the profession of a thing called “corrections” comes into being over the 1900s, in part because people are horrified by how people are in detention.

John Howard, as we heard, meticulously, goes to — as one of the first empirical social scientists — around both Europe and England, to look at the awful conditions that are there. In 1870 in Cincinnati, a group meets for something called the National Prison Congress that spawns what is today the American Correctional Association. In 1872 it spawns the International Penal Penitentiary Commission, which, every five years, runs congresses, and you see the infrastructure of a social network of norm creation.

And hello, this is one of their norms. You can detain and put people in dreadful conditions in the name of discipline, in the name of order, in the name of security, in the name of reformation, in the name of a lot more. An amazing group of women in the 1920s call prison “torture” and prisoners to have rights. This is after World War I. They interrupt this narrative of utter control of the prison men running the prison system, by suggesting there be an international convention on rights. They’re part of something called the Howard League, which is utterly different from John Howard, who was into degrading punishment as redemptive in his theology, actually.

And they push, and although rebuffed initially by their own government, and by this international penal penitentiary commission, that group realizes the League of Nations, and these other entities, are starting to pinch on their territory. As a consequence, they convince people to generate and draft this first ever standard for minimum rules for the treatment of prisoners, the League of Nations, it’s 1934. And the opening lines are bolded. (By the way, I need to thank all the amazing former law students and current law students who are here, and I am in deep debt to all of their help for teaching me so much.)

The treatment of prisoners is from the humanitarian and social point of view. 1934, definitely well intended. Don’t want there to be adequate light and air, because there mostly isn’t adequate light, air, and food. Want there to be better conditions, quote, unquote. And they don’t for a second say the word “rights.” Neither did de Tocqueville, neither did Beaumont, neither did Beccaria, neither did Bentham.

I can go on ad nauseam. Humanity, efficiency, utilitarianism, natural rights, moral — whatever you want — but it isn’t that the prisoners have the authority of their own to make law treat them differently. Although agentic prisoners did amazing things in protest, and sometimes got places. It wasn’t because the law got them into prison. It wasn’t that law was going to protect them. And look at the officialdom here — Rule 36 — and this is Brits. If you need corporal punishment, i.e., whipping, lashing and birching, which were all the words in the Commonwealth, you can do it as long as a doc says it’s okay and law says it’s lawful. And you can also put people in dungeons called “dark cells.” So this is the first ever standards, and they’re passed, and there are objections, by the way, for many other parts of the globe, but the Anglo Saxon influence gets those words in the text.

1934: Hitler’s taken Germany in 1933. In 1935, this group is meeting, in Berlin, over the objections of both women from the Howard League, Jewish people from other places, saying, “Excuse me, Berlin, Nazi Germany,” which greets them. Because running concentration camps, running plantations, and running prisons have a lot in common, in terms of subjugation and limited autonomy. It’s tolerated and understood, until post-Holocaust, in the middle of the civil rights movement, when broader groups of people have experienced detention, that the peoples of color and class who were always in detention, is when the words “rights” and “dignity” come into an international convention.

The U.N. takes over this organization, [unintelligible] and the U.N. reiterates standard minimum rules for the treatment of prisoners that, for the first time, talk in the language of rights, in nondiscrimination, ban whipping. But, by the way, do talk about Rule 32, close confinement. Reduction of diet shall not be inflicted unless, i.e. you can starve them if doctors say it’s okay and certify it. Yes, of course, imprisonment is supposed to be at least depriving, but except as incidental to justifiable segregation, or the maintenance of discipline, aggregation, suffering inherent in it, you can do it.

So here is an example of a transnational proposition that exists in most national rule-based systems as well, which is, “You’re not supposed to unless you need to, in the name of security.” And this is one way to describe the law. This is the break, and this is why I just want to counsel that however moving and important and interesting the history is that all of us are engaged in, we need to be — if we want to change the way law relates to people in detention — very clear that it’s a disjuncture, not continuity, that we’re talking about.

The disjuncture is based, from our wonderful justices that we heard, on a fact of a transformative political, social set of movements that moved prisoners out of the realm of the nonperson indentured, and into a realm of personhood. In the same era, just to be clear, the European Convention on Human Rights talks about prohibitions on slavery, forced torture, forced labor, punishment with law, private life, and the like.

This is the transnational picture into which we need to put the text of the U.S. Constitution. And then not by happenstance, in a case involving denaturalization, Earl Warren says, “evolving standards of decency,” because the world has really changed, and it’s right to have rights, because they’re all sitting there, reverberating after World War II’s pictures, and starting to understand the enormous harms of detention that are there. Do remember that Trope is a case involving federal constitutional law, because, as we’ve heard, the Eighth Amendment wasn’t understood to apply to the states till the 1960s in Robinson v. California.

So Enlightenment ideology — more power, those white men, upper middle class in Europe, and in England, who said, “You know, punishment should be purposeless. It should be purposeful.” That’s a break from monarchical authority. “Justify it.” Guess what? Incapacitation, retribution, deterrence, rehabilitation, institutional safety, cost reduction — all of those things come, thank you, from the Enlightenment, they get embedded in U.S. constitutional, penological justification, penological purposes. As you all know, all of this stuff justifies a stunning array, including in the United States, capital punishment.

This is the next step of the inheritance, which is Enlightenment purposefulness; U.S. constitutional law, federal and state, looking for purpose, and then the question is, which purposes are listed? Here are snippets from some of the state constitutions that we already heard about, with a terrific account by Will, of the thick array, the variation, the multiple potential ways to interpret all of these. These are just examples where there are words in addition to the words in the federal constitution that can talk about reformation, that can talk about health and safety, that can talk about unnecessary rigor, that can offer more language.

What might any of those words mean? Social movements give words meaning. And so I’ve used Attica as an example, as one of the instances where it’s incarcerated individuals who say, who invent, the idea of their own rights dumbness, when they lived in a world which was telling them repeatedly that they were rightsless. This is also a reminder that there sometimes is in the United States there is kind of a regional story about Southern versus Northern, or whatever we’re talking, across the United States, and I’ll briefly talk about this.

So this is Arkansas in the 1960s, and this is a whole line, and by the way, you can look at pictures from Angola now that don’t look very different from this. And there’s litigation ongoing about it. How was this form of forced labor enforced? Here’s a picture. It’s called “the whip.” The whipping was how Arkansas explained, it was effective, it was efficient, it was deterrent, it was useful. And a group of prisoners who, as far as I know, understood themselves without political affiliation, but who just said, “Don’t whip me.”

These were actually the lead plaintiffs in the first case, three white men. There’s another three white men who bring lawsuits saying, in the 60s, in Arkansas, “You can’t whip me.” Federal district court judge appoints lawyers for them. Appoints people who were the president of the Bar Association of Arkansas and then went on, another, to be the president of the American Bar Association. And what is it that federal judges say after a trial, there’s a 640-page transcript. We enjoin the whip unless — unless — until adequate safeguards surrounding its use. You may whip people, as discipline, in deference to your views on how to run your prison system, as long as you do it procedurally correctly. This is an Eighth Amendment procedural non arbitrariness, not a procedural due process argument.

And then in 1968, Judge Harry Blackmun, who was then a judge before he was justice, says, “You stop. You can’t win.” And he writes a really long opinion. He describes offending concepts of decency and human dignity and civilization that we profess. But he goes on to say, “Whoa, how do you tell the difference between impermissible and permissible punishments?” And he goes on at great length, because he knows there’s solitary confinement — even though it’s often not so solitary, but jammed with lots of people. He knows there’s a ton of other things, and he says, “How do you draw the line?” He doesn’t want to outlaw everything in prison. He’s only trying to stop, and does indeed stop, whipping along the way.

This, in 1968, is also the same year the U.S. Supreme Court has what I would call its first conditions prisons case. It’s about Alabama, which segregated its prisons by race — by statute — black, colored and white people were not supposed to be chained or sleep together. Alabama stands up in the U.S. Supreme Court and says: These people have no rights to make that claim to you on desegregation because they’re convicted. 1967, ‘68 they make that claim — the first time the U.S. Supreme Court has a person of color on it, i.e.Thurgood Marshall, has just joined the bench. It’s held by the Supreme Court that it is unconstitutional to segregate, and that these people have the right to bring this class action claim, which the great Frank Johnson had decided for a three-judge court below. The concurring opinion in the per curiam says: except security, discipline, and good order could, in specific instances, justify segregation. So it’s the very same words or similar ideas, parallel words to the 1955 U.N. convention: Unless you need to do it.

So there’s the rights bearing, with the “unless,” and then in the 70s, you get — mostly in federal courts, because that’s where the structural cases are being brought at the time — the no iron curtain drawn between the Constitution. If I cut across to Europe, this is a case involving Irish people being in English prisons, and the Albany prison, a pretty famous case, doesn’t stop at the prison gate. So this concept on both sides of the Atlantic, that prisoners are rights bearers, and then the issue for all of us ever since then, is: What might it mean?

And the unfortunate news in the United States, starting really in the 80s, is of a retrenchment in whatever it might have meant. For people who are interested in statutes as well as state constitutions, there’s a raft of statutory proposals, in the 70s, in Congress, after Attica, in states, about regulating prisons, which don’t come to much by way of fruition. There’s the war on crime here in the United States, war on drugs, race propelled.

This is a diagram from an Ohio paper. Two people stuck in a cell, built for one. The little box says it’s the size of a Cutlass. For any of you who are interested in now antique cars, that’s the idea of how incredibly tiny it is. The U.S. Supreme Court in Rhodes v. Chapman authorizes this — two people stuck in a cell, “double celling.”

Here’s our statement of U.S. constitutional want and unnecessary infliction of pain. We get this invocation of the “minimal civilized measures of life’s necessities.” So just think of the colonial history in the civilization narrative, as well as in the word corrections, as well as the class and race base of this, that you’re looking at a narrative that says, “civilization.” But look what “minimal” requires, not comfortable prisons, not free of discomfort. And this licensing — Here’s a picture from California in 2007. This is attached to Justice Kennedy’s opinion in the 2011 Brown v. Plata decision, where people are dying because of the overcrowding in this instance, and you’re looking at this density, as well as the cages in which people who needed mental health treatment were there.

I’m planning to circle both state, federal, and across the ocean again. Here we are in the federal courts in the 2020s, and here is this century, 21st century. And here is Justice Gorsuch, in a very famous case called Bucklew, a death penalty case. And so if you look at this description, he doesn’t use any words like “decency,” “evolving standards,” or anything like this, but he does tell us about “taint,” “terror,” “pain,” “disgrace,” where super-added to the penalty of death. We have some history about whether, if it’s cruel, the super-adding.

Hopkins is a disenfranchisement case in which the en banc talks about this super-added. Super-added is Old English, you can tell. Super-added means “more.” Then the question is, how do you know if there’s more? Good old Jeremy Bentham, for whom I have enormous admiration, says he has an argument that is about lawfulness. When he hates transportation to the colonies, he thinks it is inefficient, because the point of punishment is to show you and scare you to behavior that will be conforming with law. You need to observe prison officials, as well as the people who are in detention, to be sure that they are compliant with their rules. He wants to say that transportation is super-added, a punishment of greater magnitude, or inflicted silently and without sentence. So it’s lawlessness, from his definition, that gets us to the idea of super-added: You don’t have the authority to do this.

Okay, how do I know that I don’t have the authority to do it? One version is, it’s not in the statute. But some states still have statutes about hard labor. Relatively few of the conditions of confinement are specified by statute. Maybe a big social movement should get a whole bunch of the “more” specified by statute, so you could have more super-added arguments to be making: these are the penalties. Bentham’s contract for the panopticon never entered into said you have to give them food, adequate food, water, etc., health care, not to make them ill. It was all in there. So that is a piece of it.

So now we’re going to move back and forth to states here. There’s federal law that’s sitting out there, and it’s either lurking — resistance. We heard about Massachusetts. New Hampshire has an independent, adequate state ground statement all the time. Whatever we decide, we’re doing it: free. What is there? The license plate, “live free or die” or something? So we’re deciding, for us. And for any of us who teach about the Supreme Court’s jurisdiction, the effort to say we’re independent, adequate, is, sorry, you can’t take this case, because it’s not based on federal law, says a state supreme court. And state supreme courts can do it. But we watch other state supreme courts that are saying, we want to conform, or we at least want to start reasoning. I think we should underscore that there are some states that have doctrine that talk about how their first step is to think about federal law, federal constitutional interpretation, and then ask whether they should be different, or not, as compared to, “We’ll do whatever we want,” as compared to, “We better do it.’ And you can certainly see what I describe as “leak.”

Laws migration is a cheerful version of law being imported and exported and moving. Leakage, obviously is a little less cheerful and is trying to capture the way in which it can kind of come in, whether with quotes with intentionality or not along the way. And here are examples, more complicated examples: California. So I think we need to be clear about the political economy of state supreme court justices, who may want to say, I’m not doing it because I’m doing it under Massachusetts law, the feds made me do it. And so the use of U.S. constitutional law as an umbrella to protect against criticism by their state constituencies, whether elected or not, is certainly something that is plausibly empirically true, and in a decision, then Chief Justice Warren Berger said, Floridians don’t let them do this, and, Florida has a lockstep provision. Your prohibition shall be construed in conformity with decisions.

Now the California piece that I have up there in front was an effort to do the same thing that has become kind of dead letter because of litigation subsequently to it, but the amendability of state constitutions provides both, “You have to lock step,” or, “You don’t have to lock step,” or, and “Now back to wonderful state justices.” You can then read it, because words like “consistent with U.S. law.” Of course, you have to be consistent with U.S. law. There’s a supremacy clause, so the weight and freight of it is another question.

And then I added something from Pennsylvania, because you don’t need a provision in a constitution for justices to decide that they should or want to be in conformance. Now we were invited earlier today to say, what are their other moves in the deck? And here I want to offer what I described as anti-ruination, or ruination, as a way to think about a space in coming from Old English terms, to think about what it is that states can’t do in terms of their purposefulness.

Step one is, “Thank you, Enlightenment folks, punishment is supposed to be purposeful and have some moral, political, social usefulness, because it imposes suffering.” Step two, what are your licit purposes? You can’t in a democratic order, once prisoners are people with rights, set out to ruin anybody, and ruin is a phrase that you find in the first case the U.S. Supreme Court says — Timbs excessive fines clause in 2019 — where the idea is that the excessive federal fines clause applies to the state, to the states as well. And it’s Justice Thomas who talks about the idea of a government not seeking to deprive a wrongdoer of his livelihood, to cause the ruin of the criminal.

And to me now, with this juncture, ruin of the criminal, then meaning economic ruin, I’m now thinking, now that we have a world of detention, you can’t try to have a physical, mental, social ruin as well. And it’s my best explanation of how deliberate indifference to serious medical needs is unconstitutional as an Eighth Amendment matter, because that’s a form of ruination that letting people become ill, so Ill, is to ruin them. It also justifies all the conditions cases — you can’t set out to ruin them.

Now, there are many other words that are available if you again cross the ocean. And now Europe is not licensing putting people on tread wheels, but we look for human rights, minimum, responsible, proportionate. Be careful, proportionate can give you a lot unfortunately, you can’t use lack of resources. It’s supposed to be in the real buzz words, or central buzz words in European discourse around this is normalization and regularization. Be like the world outside of prisons along this way, and reintegration, plus a lot of monitoring. And many of you know, here’s the sort of denouement of the 1934 rules that were from the League of Nations. In 2015 they are reiterated and now called the Nelson Mandela rules for the treatment of prisoners, which seeks to ban solitary confinement for 15 days, or more prolonged, defined as more than 15 days, ending corporal punishment, and a lot more to limit the physical intrusiveness and oppressiveness of it. The European Court of Human Rights has its own case law, again, not to humiliate in your own eyes, not my eyes, who I’m sitting outside, but from people inside, there is an element of suffering and humiliation. It’s not supposed to be aggravated, and you’re supposed to try to be consistent. No starry eyes, please. If you read accounts of current prisons in France, a headline in Le Monde in early June of the vicious violence in the French prison system. England is lowering its economic investment in it radically. So the case law asks for more than many of the prison systems are doing.

But if I come closer to this contemporary poverty of U.S. constitutional law, the purposefulness of Enlightenment purposes have, I think, run their course in terms of their ability to constrain government action in punishment. I put the evolving standards here, because it is still the law, and Rhodes v. Chapman licensing double celling invokes evolving standards of decency. But there is this competing line from Bucklew-plus of super-adding. You can’t do it unless you actually need to do it. I wanted to be sure to underscore a new decision out of the 11th Circuit with Judge Newsom writing his own concurrence talk. This is a man who didn’t for four days get his epilepsy medicine while he was in prison. And the question was, what’s the test under the Eighth Amendment? And this is about intentional and subjective elements.

Judge Newsom’s argument is, in order for me to sustain an Eighth Amendment claim of radical health disability, I’d have to show that it was an intent to punish me. And so, as Judge Rosenbaum, in her concurrence, points out, under his test, a state cutting its entire budget for health care could possibly be immune, because it wouldn’t be for an intent to punish, but an intent to save money. So this is the daunting project in the federal system, whether not just risk, but a fact of leakage or appropriation.

And then coming back to a hopefully more cheerful idea, is to invite state justices and federal and state legislatures to embrace the idea that we are in an era that doesn’t map onto the pre-1940s world, in which there was zero apology for treating prisoners as slaves of the state. And now that that is no longer permissible, in orders describing themselves as having democratic, egalitarian values of everybody being rights bearing to invite you to sort of reread state constitutional law, not to claim continuity with its past, but to argue for and to borrow from, because state courts can use non U.S. law with less fetters than the current federal system. This can invite thinking through what it means if a state has to shoulder the obligation of treating people as rights bearing if and when detaining.

And in the context of thinking about what it means, I turned to Jeremy Bentham, he was really able. He talked about how some people will begrudge giving anything to people who are in detention, and others will call the cries of inhumanity. And he’s right, that it is annoying, can be if somebody’s been found to have done something unlawful, to give. And one of the reasons that explains, for me, why European law looks better than U.S. law, is in a world in which everybody gets some social support, some health care, some economic, some education, there’s less giving to people who wouldn’t otherwise get, as treating everybody regularly and more normally.

And Bentham used the word eligible, more eligible or less eligible for social services. He was actually worried that he’d create incentives for poor people to go to prison because he’s going to give him food. And then he said, well, you’ve got to give him food anyway, because you’re not sentenced to death. But this idea of understanding ourselves as interlocked, and whatever good services and support and relationship we have with our government outside of detention, is the good services and relationship we need to have with them in detention. And if we see this interlocking, we can much better understand how to move a law forward that is respectful of people with or without a prison wall.

And in that regard, here, owed to states, the potential for state judges doing this in part because they’re so embedded in their system. As I was listening to the panel of judges, I was just struck about the sense of their need to be making systems that work in relationship to their legislature and their executive branches, and the federal system disconnects the jurists from the world that they are inhabiting, in some not very functional way. And Ellen Peters, who was the first woman to be the chief justice of the Connecticut Supreme Court, died recently, and she gave a talk at a Lyman colloquium about how she felt as the chief justice of Connecticut, the need to be functional. She had to figure out remedies that could work in the state in which she lived. So I think it’s not just the opportunity of state court justices, but actually their specially situated capacities that would enable a better jurisprudence than the one we have.

That’s it, and I’m happy to take comments or questions.

Q: [unintelligible]

Judith Resnik: So the Thirteenth Amendment is an example of the commitment in the civil post Civil War era, as is the fourteenth with the voting provision, that the duly convicted are not seen as equals. And they’re different arguments. Let me slow down. There’s an argument that James Pope and some others have that it’s just supposed to protect state statutes authorizing hard labor. That’s not been interpreted like that. And it’s barred from the Northwest Ordinance. It’s barred from the ordinance, etc.

It seems to me, it’s an example of the presumption of, that people who are in detention are not the rights holders of free people, and unselfconsciously said, in various “slaves of the state” language that lives on, but stops, except Stevens shouts it out. Justice Stevens shouts it out in a Supreme Court decision about entitlements to process when you’re being transferred to a worse prison. So that language mostly goes away, and we don’t even see in the new opinions of our justices that language. So the one version would be, you have to reread the Thirteenth Amendment and the Fourteenth in terms of disenfranchisement, as well, as embedded in a time that is rejected by the second Reconstruction, and therefore you have to reread what you read before about it.

The other as we know, there are states around the country that are amending their constitutions to limit the reach, to say involuntary servitude applies to everyone. What that actually means in practice in terms of Department of Corrections regulations and/or subsequent litigation and or legislation and practices, I certainly haven’t seen any documentation of how that has been translated. But the Thirteenth Amendment is more evidence of the sad history, to my view, is a shorter answer.

Q: [unintelligible]

Judith Resnik: So thank you, first of all, for doing that, and second of all and for explaining it. But second looking at the economics of incarceration, Jeremy Bentham said, they all have to work, because we need to support this enterprise. And so there are efforts to document how much of the labor of detained people — dollar and cents — as well as to try to get its emotional and freight and weight, to try to show what it costs.

The puzzle for the economist is, why isn’t price a constraint? Because Arkansas had no budget line for prisoners, for its prisons, until after the cases about whipping and then about the abysmal conditions in their prisons. And one would have thought therefore, that since they didn’t want to spend any state tax buyer money, they’d have a small footprint. Guess what, enormous budget increases to incarcerate in dismal settings, complete with a lot of forced labor.

So if we were trying to deal with dollars and cents in forced labor, one would then want to do a much thicker accounting of actually how much it costs, and how much it costs in real human time, and then challenge. Then the question is, we get it. Those lobbyists are right. Yes, we couldn’t do it without our forced labor. So you’ve identified the pulse of where the radical change would have to come from.

Kristen Bell: I’m Kristen Bell. I teach at Oregon, I’m going to ask another Oregon question. We are one of the states that amended our constitution to repeal the provision that is analogous to the Thirteenth Amendment. Do you think that the passage of that amendment is useful to litigators who are trying to push the state supreme court to interpret their cruel or unusual punishment clause more progressively, for example.

Judith Resnik:  So first coming back to the, both the forced labor and the quid pro quo, there’s some litigation in the 70s about forced labor, and one question was whether quid pro quo, you’re working and we’re feeding you, so it’s not forced. So just to slow us all down about what’s involuntary if we’re not and then, of course, you all know there’s pay-to-stay. So left Connecticut, where I live. So the idea that there is a quid pro quo. We have to interrogate that as well.

Q from audience: [unintelligible]

Judith Resnkik. Well, you can do different things, for free, trial detainees, by the way, there’s a line of U.S. Supreme Court decisions, civic duty, juries, road work, race and class in Florida. I mean, they are examples. Can we make you do something as a citizen, member of our social order. And if we put you in detention, can we require you to maintain yourself and/or charge you before, after Michigan. Michigan is here on the challenges to Michigan, $1,600 to get convicted as a felon, right, Is the current tariff for it.

So, this issue about what the state can compel, what the state can charge, when the state gets you in, cuts across and is, can they make me go to school? Can they make me pay taxes? Can be in the military? There’s more here in our story, and we can’t tunnel vision and just say it’s about this. If you’re in detention, you have to provide me adequate food, water, whatever. Can you require some reciprocity? What would we do if we called it reciprocity, and what would be the nature of that reciprocity, and how much would you have decision making, and what you wore and how you ate and what you were. How could we think about a reciprocal obligation if we’re building, if we’re in detention of who’s reciprocal to who?

And I should add, and I’ll have to get back here. Amend is a place in San Francisco that the University of California San Francisco Medical School, the conditions for people who live, who work in prisons are pretty bad, too. More suicide, depression, health, stress, high blood pressure. Is it? This is about we’re all in this together, the people who live in prison forever, and the people who work in prison live in a miserable setting. And if we can make those interdependencies clearer, then staff and people incarcerated would be more joint ventures to lift the weight of the oppressive setting.

So that’s the idea to Amend, look at their work. It’s very impressive. And it’s a health care and public health kind of perspective around that that is commendable. Can courts have a jurisprudence that says, if this clause changes, I need to read this clause? So then that’s got to be at some level internal to the theory of how Oregon reads its constitution holistically, integrated, synergistically, or not. That would be what did Hans Linde teach you, a great Oregon Chief Justice, to read it as a whole, or to have this one affect that one. Of course, litigators can say, look at the changing meaning. And if you have a dynamic, changing meaning idea, then you can move in that direction.

Ashley Sawyer: Hi, my name is Ashley. I’m policy counsel at Pregnancy Justice, and I was curious if you had come across in your research any definitions or ideas around punishment specifically as it relates to women and pregnant people specifically. And if you had any thoughts about sort of distinctions in the law around conditions for a person who might be pregnant, a person who might be menstruating, like just the ways that women are treated in prison, and how we develop law around that.

Judith Resnik: Is Yael Caplan a Lyman Fellow at Pregnancy Justice?

Ashley Sawyer: Yes, yes, yes.

Judith Resnik: Say hello. And we also know that you’re litigating a case about a woman who gave birth in a jail shower, if I remember the sad details, among others. So if the U.S. Supreme Court standard of deliberate indifference to known medical needs survives the current crop of justices and judges, then women have known medical needs. And in a world in which, over the last 60 years, health care has come to recognize the specific health care needs that are non-binary, but are clearly distinctive health needs on a host of dimensions. And actually, then there would be a basis for saying, you are, or have been indifferent to the specific health needs of subpopulations. And there are wonderful doctors. There’s a clinic at Yale called Transitions that the medical school runs with a woman named Emily Wang who just won a MacArthur, because people who leave detention leave with a host of medical problems. And there’s research from a woman at the medical school at Yale of much higher incidence of stage four breast cancer for women who are screened exiting prison than there should be, because there wasn’t enough care in prison, so you have a much more developed, progressed illness than would have might otherwise have happened.

And so is there a way to try to link both public health providers to people in detention to see about preventative care? And it actually comes back to this linked community. Covid-19 was clear, people who were corrections officials and staff had higher incidence — as did people who way higher incidence — had even higher incidence of death and illness, but the people who worked in had higher incidence than the population at large.

So the idea of the linkage, that it’s a public health problem, because when people leave, there’s health care costs. There’s this issue about the Medicare waiver, where you can get health care while you’re in transition. So this is this idea of a network of social services back to reciprocity or quid. That is there a network of social service providing that could lessen the harms of detention. On the doctrine legal side, you want to be saying, the state can’t set out to do harm. We’re going to be faced with a justice who said, you have to show me, I’m intending to punish. I’m going to push back and say, setting out to do this harm is the consequences punishment, and we’ll see who could prevail on that.