The Eyes-On Doctrine
abstract. For decades, American courts have taken for granted that the separation of powers severs the judiciary from prison administration. In its more stringent forms, this idea characterized the so-called “hands-off doctrine.” Under the hands-off doctrine, courts would decline to intervene in prison government, even when presented with claims that conditions of life inside prisons were so bad that they violated inmates’ constitutional rights. This stringent view fell away over the course of the 1960s and 1970s. But the gist of it survives. The separation-of-powers principle is a pillar of contemporary prison law. It supports vast judicial deference to prison administrators. It tends to rule out injunctive orders that might aim to regulate or remedy conditions of confinement. Courts find prison management to be all but exclusively the political branches’ business.
This Note discovers an earlier, more reasoned regime. In the thirty-odd years following American independence, the judicial power uniformly came to encompass supervisory authority over prisons. Judges could second-guess the warden. Sometimes they had to. Judges were called upon to appoint prison inspectors, to act on those inspectors’ presentments, to frame rules of internal prison government, and to review a sheriff’s selection of jailers. In some jurisdictions, on their own motion, they could remove a prison keeper for misbehavior. Nor is that all. The statutes vesting these powers in judges went on the books amid sustained debates over the meaning of the separation of powers, as Founding Era constitutions enshrined that principle. Its major exponents, Thomas Jefferson among them, were sometimes responsible for drafting these statutes and then lobbying for their passage.
Across the germinal period of our constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: supervision of prison government is consistent with, if not an incident of, a separated judicial power and its exercise. I call it the eyes-on doctrine. This Note argues for its studious revival.
author. J.D. expected 2025, Yale Law School; B.A. 2013, Yale College. It is a pleasure to thank James Whitman for his encouragement, advice, and example, and Dhruv Aggarwal for his. For their trust and vision, my former colleagues at Sher Tremonte LLP, especially Michael Tremonte, Justine Harris, and Noam Biale. Fiona Doherty, my compañeros in her seminar on criminal law, and Derrick Lin. My parents and my brothers. This Note is fondly dedicated to Pete DiNardo on the occasion of his retirement—with more gratitude than I know how to express. Any omissions or errors in what follows are mine alone.
Introduction
In the early days of the COVID-19 pandemic, the Washington Supreme Court decided Colvin v. Inslee.1Shyanne Colvin and her copetitioners sued for a writ of mandamus.2 Had this writ issued, judges would have commanded the governor, Jay Inslee, to take measures to reduce the size of the state’s inmate population.3 Correctional officers and incarcerated people agreed: Washington’s prisons were too crowded to allow for adequate social distancing.4 Petitioners sought targeted decarceration.5 Specific groups, such as those scheduled for release within the next eighteen months, would have become eligible for immediate release under the relief the petition requested.6 Four weeks after the petition was filed,7 the court, in a first, heard argument by videoconference.8 Counsel for petitioners noted an irony of this arrangement: “COVID-19 is so dangerous and so contagious that it’s actually illegal for us to be in the same room this morning. But nonetheless, my clients sleep in the same room with two or three or twenty-five other people.”9
The case was “extraordinary”10 in many ways. Not so its result. Four dissenting judges would have retained jurisdiction, appointed a factfinder to continue inspecting crowded facilities, and given petitioners’ claims the ongoing “scrutiny they deserve.”11 But a five-member majority of the court dismissed the suit.12 It held that prison management is “an undeniably executive function.”13 For judges to order the governor to exercise his discretion in the ways that petitioners urged “would contravene the historical roles of the executive and judicial branches.”14 Citing Federalist 47 alongside state mandamus precedent, the court maintained that the Framers of the U.S. Constitution designed a government of separated powers like Washington’s15 “to prevent any one branch of government from gaining too much power.”16
These received ideas, crucial to the narrow Colvin majority, are commonplace in modern American prison law. The Supreme Court has decided that “the Constitution does not mandate comfortable prisons,” and problems like overcrowding “properly are weighed by the legislature and prison administration rather than a court.”17 More broadly, it is to “the legislative and executive branches” that prison administration “has been committed.”18 Operating prisons is, in fact, “peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.”19 “[S]eparation of powers concerns counsel a policy of judicial restraint” in this area.20 Even when rules of internal prison government go so far as to limit inmates’ access to courts, “it is for the political branches . . . to manage prisons in such fashion that official interference with the presentation of claims will not occur.”21 The judge defers to the warden.22
I quote liberally from these opinions because their reasoning here relies so much on quotable assertion, so little on analysis of constitutional text or structure, or legal history or tradition. Sometimes, courts reinforce their assertions with the idea that judges could not intervene with wisdom or due care; they lack the needful expertise in prison administration.23 It sounds prudential enough, but this idea has to be corollary to an understanding of what the separation of powers requires. Judges could not try to gain or maintain fluency in the challenges of prison administration if constitutional prescript prevents them from doing so in the first place. Other times, courts worry that by inserting themselves, they would circumvent and undercut prison staff’s authority in the eyes of inmates and compromise prison discipline in turn.24 Courts sometimes express this concern in terms of the separation of powers,25 and for good reason. It takes for granted that judicial intervention means judicial intermeddling. For the prison to be subject to oversight, for prisoners to be able to seek redress for alleged mistreatment—these things are hardly thought, in themselves, to threaten good order. Consider inmate grievance procedures,26 nonjudicial oversight bodies,27 and evidence that both promote discipline.28 By what assumed necessity do judges sit in splendid isolation from those apparatuses? It must again be an understanding—however unexplained, however clothed in feelings of sound policy—of what the separation of powers requires.
Still other times, as in Colvin, judges validate the separation-of-powers truisms they rely on by attributing a Founding Era pedigree to them. Justice Thomas, for instance, has doubted “the legitimacy of that mode of constitutional decision-making, the logical result of which . . . is to transform federal judges into superintendents of prison conditions nationwide.”29 His doubt, jealous both of separation-of-powers and federalism principles, hearkens back to the original frame of American government. The Founders “never imagined that federal judges would displace state executive officials and state legislatures in charting state policy” in this domain.30 Justice Scalia, for his part, seemed to assume that these separation-of-powers truisms constituted timeless tradition. In 2011, the Court upheld a decision ordering a reduction in the size of the prison populations at chronically overcrowded California facilities.31 Dissenting from the bench,32 Scalia said that the Court’s decision brought judges well “outside the traditional judicial role” and raised “grave separation-of-powers concerns.”33
The tradition Scalia referred to does trace back to the 1940s and 1950s. Those years marked the heyday of what came to be called the hands-off doctrine.34 Courts reliably would hold that passing on prisoners’ complaints, even when those complaints alleged that conditions of confinement amounted to cruel and unusual punishment, would extend the judicial power beyond its proper bounds.35 In an early, influential case in point, the Fifth Circuit decided that the “court has no power to interfere with the conduct of the prison or its discipline, but only on habeas corpus to deliver from the prison those who are illegally detained there.”36 No authority is cited for the proposition, but the opinion’s author, a certain Samuel Sibley, might as well have cited himself. Eight years earlier, from the bench of the Northern District of Georgia, Judge Sibley asseverated his way to the conclusion that “our frame of government” prevents courts from vindicating whatever rights prisoners have.37 Over the course of the 1960s and 1970s, judges became, so to speak, more hands-on. They heard and acted on prisoners’ complaints; they guided reforms to the ways that prisons, particularly state prisons, were run.38 But by the 1980s and 1990s, the premises underlying the hands-off doctrine began to reassert themselves, opening what several commentators call a period of retrenchment.39 These days, federal courts conform to the “hands-off attitude” as the judiciary’s traditional stance.40 State courts do, too.41 Colvin and other cases decided during the COVID-19 pandemic confirm that the gist of the hands-off doctrine has enduring force.42 To be sure, courts recognize inmates’ constitutional rights, whether they arise under the Eighth Amendment or something else.43 At the same time, the way judges think about unconstitutional conditions of confinement “equate[s] what [i]s typical in prison with what [i]s constitutional.”44 Judges systematically defer to how legislatures and executives typically see fit to run the prisons they control.
The separation-of-powers principle is a cornerstone of contemporary American prison law. It supports thoroughgoing judicial deference to prison administrators. It tends to rule out injunctive orders that might aim at regulating or remedying conditions of confinement. What does this cornerstone rest on, though? It is to “the legislative and executive branches” that prison administration “has been committed.”45 What did the committing? The Constitution? State constitutions? Statutes? Use and wont? Upon execution of a criminal sentence, “the prisoner is considered to be beyond the power of the court and in the hands of the executive.”46 Who considers it so, and why? “The courts have long recognized this division of power and the transfer of jurisdiction over a finally convicted felon from the judicial to the executive branch of government.”47 What is the wellspring, what the history of that recognition? Judges “must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.”48 Where do those imperatives come from? These opinions do not tell us. Some argue that, in the early republic, the separation-of-powers principle was little more than a slogan.49 Be that as it may, in our times, in this context, separation-of-powers analyses depend on ipse dixit—on assertions seen as undeniable.50 The theory behind and the legal-historical basis of decisions like Colvin are, at the end of the day, a pig in a poke.
This Note means to let the cat out of the bag. It is the first to explore what people throughout the early republic might have made of current notions of the proper role of the judiciary in prison administration.51 This study’s findings defy today’s common wisdom. This Note discovers that, in the thirty-odd years following American independence, in state after state—in all the original thirteen, finally52—the judicial power came to comprehend actionable, supervisory authority over prisons and jails. Judges could second-guess the warden. Sometimes they had to. Judges were called upon to appoint prison inspectors, to act on those inspectors’ presentments, to frame rules of internal prison government, and to review a sheriff’s selection of jailers. In some jurisdictions, judges on their own motion could remove prison keepers for misbehavior. Even when legislatures assumed primary oversight responsibilities by way of overseers answerable to themselves, they still granted judges exceptional privileges of access to the lockups. No cordon sanitaire divided the judiciary from the prison. Quite the contrary.
And then some. Not only did legislatures routinely grant judges supervisory powers over prisons. The laws codifying this contrary understanding of the judicial power’s scope went on the books amid sustained debates over the meaning of the separation of powers, as Founding Era constitutions enshrined that principle. The principle’s major exponents, Thomas Jefferson among them, were sometimes responsible for drafting these laws and then lobbying for their passage.
The hands-off doctrine and its abiding separation-of-powers rationale are not traditional. They are a countertradition. They devolve from an earlier and, I hope to show, more reasoned regime. I call it the eyes-on doctrine. The American eyes-on doctrine arose alongside the first American penitentiaries and the first efforts to realize the separation of powers. The eyes-on doctrine made good on then-popular ideas due to the Italian jurist Cesare Beccaria, who stressed the importance of certainty, uniformity, and proportionality of punishment in the criminal law. Under the eyes-on doctrine, who watches the watchmen?53 Judges. The eyes-on doctrine is that body of law lending force to the view that supervision of prison government is consistent with, if not an incident of, a separated judicial power and its exercise.
Because the regime this Note discovers differs markedly from modern prison law, it seems right to waste no time in introducing a Founding Era spokesman for the eyes-on doctrine. Part I finds him in Benjamin Rush. A close reading of his Enquiry into the Effects of Public Punishments upon Criminals and upon Society, published in Philadelphia in 1787, helps to reconstruct a possible rationale for the eyes-on doctrine. Rush’s reasoning stands to explain why the laws instantiating the doctrine raised no separation-of-powers concerns in the Founding Era.
Part II brings those laws to light. It shows that legislatures enacted them in periods of heightened sensitivity to what the separation of powers might require or proscribe.
Section II.A deals with states that vested supervisory powers over prisons in superior courts. I begin with this evidence because it supports my thesis in a relatively straightforward way: I am unaware of any theory under which powers exercised by superior-court judges might not be taken to embody the judicial power itself. Section II.A presents evidence in roughly chronological order.
Section II.B moves to the prison-oversight powers of Maryland’s Court of Oyer and Terminer and Gaol Delivery, which sat in Baltimore. This court was presided over, in the first instance, by justices of the peace (JPs), who were shortly replaced with justices having “sound legal knowledge.” The court was, in a word, professionalized.
Section II.B therefore serves as a kind of pivot between discussion of the powers of professional judges in Section II.A and the subject of Section II.C: the JPs and their courts. The reason for taking peculiar care with evidence related to JPs and discussing them separately is that these magistrates were understood to exercise both judicial and ministerial power. In certain jurisdictions at certain times, as Section II.C further explains, JP courts enjoyed fused judicial, quasi-executive, and even quasi-legislative authority. So when legislatures vested JPs with supervisory authority over prisons and jails, the question arises: were those powers thought to fall within the compass of JPs’ ministerial, rather than their judicial, authority? Legislative patterns across Massachusetts, New Hampshire, Georgia, and the Carolinas indicate that when JPs were vested with powers over prison government, those powers were in fact thought to have a judicial cast. Section II.C identifies and explains those patterns. To bring them out, and let different statutes illuminate each other, Section II.C groups evidence thematically.
So far, so much state law. Section II.D reviews the federal component of the eyes-on doctrine in the form of a reappraisal of Ex parte Taws. Taws was among the earliest federal habeas corpus cases. Some consider it an early inkling of the hands-off attitude toward prison administration. Section II.D argues that this interpretation is wrong. Modern commentators (though not one important early commentator) misapprehend the case’s holding. Taws in fact chimes with the eyes-on doctrine. It also chimes with ample, if half-forgotten, background English common-law precedent and practice. Without pretending to offer a comprehensive account of the English background to the American eyes-on doctrine, Section II.D’s analysis of Taws nonetheless occasions a quick glance further backward in time to the tradition of prison supervision by not only English JPs but England’s highest law court, the King’s Bench.
Part III resumes chronology and discusses the post-Taws career of the eyes-on doctrine in antebellum America. Section III.A first discusses evidence from two states that Part II passes over, Connecticut and Rhode Island, which came late to separating the powers of their state governments. Section III.B then observes signs of fundamental changes to the prison-law landscape after the Civil War. To do so, it rereads the infamous Ruffin v. Commonwealth, which held prisoners to be “slaves of the state.”
This Note ends where Part I began, with Rush. It observes resonances of his views in the present day and argues, in turn, for a revival of the eyes-on doctrine. I briefly sketch some forms its revival could take. But only briefly. This Note’s overriding aim is to challenge one of modern American prison law’s major, unfounded truisms. For decades, down to the weeks and months just past,54 state and federal courts have held against imprisoned complainants by taking the position that the hands-off doctrine or its separation-of-powers cornerstone is the stuff of immemorial tradition, common accord, or mere self-evidence. This Note seeks to lay those canards to rest. It seeks to clear the ground for fresh thinking about how judges might watch over the justice of custodial sentences they impose.