Legal Rights of Prisoners

Despite the cutbacks just described, we no longer live in a "hands off" era, nor are we likely to return to one in the future. Courts, even the Burger and Rehnquist Courts, have indicated time and again that the judiciary has an important watchdog role to play in ensuring that fundamental rights are not denied even to a group as politically powerless as prisoners. Yet, it is reasonable to wonder whether the courts and Congress went too far in cutting back on inmates' rights in the 1980s and 1990s. The deference that is reflected in both the Supreme Court opinions and in the PLRA is unlike that given to any other department of government. Ironically, deference has been granted to the very institution that, because of its all-controlling nature, poses a greater risk of abuse than virtually any other institution of government. The opposition to the current deferential doctrine was well expressed by Justice Brennan who wrote that a high level of deference to prison officials is not justified. Justice Brennan explained, "The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing" (O'Lone v. Estate of Shabbaz, 482 U.S. 342, 356).

In the years ahead, these factors might compel the courts and the legislative branch to extend greater protections to prisoners' rights than is the case currently. With so many hundreds of thousands of Americans going into and coming out of prison every year, the well-being of the larger society demands no less.