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.
See Petitioners’ Brief in Support of Petition for a Writ of Mandamus at 3, 11-12, Colvin, 467 P.3d 953 (No. 98317-8); Colvin, 467 P.3d at 959 (“The Office of Corrections Ombuds toured [the Monroe Correctional Complex] and concluded that it was unable to effectively impose social distancing with its population, noting that both staff and incarcerated individuals asked that some offenders be released to increase the space available.”).
Compare Petitioners’ Brief in Support of Petition for Writ of Mandamus, supra note 4, at 6 (noting the March 24, 2020 filing date), with Washington State Supreme Court, Oral Arguments: Shyanne Colvin, et al. v. Jay Inslee, et al., TVW (Apr. 23, 2020, 9:00 AM), https://tvw.org/video/washington-state-supreme-court-2020041052 [https://perma.cc/FR6J-WX7N] (reflecting oral argument occurring on April 23, 2020).
Jim Brunner, Washington Supreme Court Rejects Lawsuit Seeking Additional Release of Prisoners Due to Coronavirus Threat, Seattle Times (Aug. 24, 2020, 2:47 PM), https://www.seattletimes.com/seattle-news/law-justice/watch-washington-supreme-court-considers-lawsuit-seeking-release-of-prisoners-due-to-coronavirus [https://perma.cc/3WRC-EN6K]; Jim Brunner, Inmates with Health Problems Sue Inslee to Force Release of Thousands from Prison over Coronavirus Fears, Seattle Times (Mar. 25, 2020, 9:29 AM), https://www.seattletimes.com/seattle-news/law-justice/inmates-with-health-problems-sue-inslee-to-force-release-of-thousands-from-prison-over-coronavirus-fears [https://perma.cc/42UJ-W5SY].
Washington State Supreme Court, Oral Arguments: Shyanne Colvin, et al. v. Jay Inslee, et al., supra note 7, at 1:06-1:21; see also Wash. Proclamation No. 20-25 ¶ 3 (Mar. 23, 2020), https://governor.wa.gov/sites/default/files/proclamations/20-25%20Coronovirus%20Stay%20Safe-Stay%20Healthy%20%28tmp%29%20%28002%29.pdf [https://perma.cc/YQB3-M9RD] (restricting in-person operations of businesses).
Id. at 964 (citing Robinson v. Peterson, 555 P.2d 1348, 1352 (Wash. 1976)). Robinson itself cites a 1969 decision for the proposition. 555 P.2d at 1352 (citing January v. Porter, 453 P.2d 876, 879 (Wash. 1969)). January treats the proposition as a time-honored precept needing no support by specific legal authority. See 453 P.2d at 879 (“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.”).
Turner, 482 U.S. at 85; see also Hutto v. Finney, 437 U.S. 678, 714 (1978) (Rehnquist, J., dissenting) (“[N]either this Court nor any other federal court is entrusted with . . . a [prison] management role under the Constitution.”); Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 137 (1977) (Burger, C.J., concurring) (“The federal courts, as we have often noted, are not equipped by experience or otherwise to ‘second guess’ the decisions of . . . administrators in this sensitive area except in the most extraordinary circumstances.”); Pitts v. Thornburgh, 866 F.2d 1450, 1453 (D.C. Cir. 1989) (“It is increasingly recognized that issues of prison management are . . . by reason of separation of powers [among other reasons] . . . peculiarly ill-suited to judicial resolution, and that, accordingly, courts should be loath to substitute their judgment for that of prison officials and administrators.”); Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th Cir. 1996) (same); Law v. Ambrose, No. 21-CV-04187, 2023 WL 2479914, at *9 (D.S.D. Mar. 13, 2023) (same); cf. Hughbanks v. Dooley, 788 F. Supp. 2d 988, 993 (D.S.D. 2011) (“It is not the role of federal courts to micro-manage state prisons.” (citing Klinger v. Dep’t of Corr., 31 F.3d 727, 733 (8th Cir. 1994)); John F. Stinneford, Is Solitary Confinement a Punishment?, 115 Nw. U. L. Rev. 9, 13 (2020) (“The Supreme Court’s modern prison conditions jurisprudence shows little awareness of the separation of powers principles prohibiting executive officials from imposing punishments on their own authority. Instead, the Court has focused on a different separation of powers problem: the need to prevent the judiciary from involving itself in the running of prisons.” (footnote omitted)).
See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“We 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.” (citing Pell v. Procunier, 417 U.S. 817, 826-27 (1974); Hewitt v. Helms, 459 U.S. 460, 467 (1983); Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); N.C. Prisoners’ Lab. Union, 433 U.S. at 126, 128; Turner, 482 U.S. at 85, 89; Block v. Rutherford, 468 U.S. 576, 588 (1984); Wolfish, 441 U.S. at 562)); Mays v. Dart, 974 F.3d 810, 820-21 (7th Cir. 2020) (holding that, in the context of a prospective COVID release order, a court’s failure to discuss the considerable deference it owes to prison administrators is legal error); Sharon Dolovich, The Coherence of Prison Law, 135 Harv. L. Rev. F. 302, 316-25 (2022); Danielle C. Jefferis, Carceral Deference: Courts and Their Pro-Prison Propensities, 92 Fordham L. Rev. 983, 991-99 (2023).
See, e.g., Tiffany Yang, The Prison Pleading Trap, 64 B.C. L. Rev. 1145, 1152 n.37 (2023) (reviewing state prison inmate grievance procedures); Substantive Rights Retained by Prisoners: Rights Related to Conditions of Confinement and the Use of Force Against Prisoners, 52 Geo. L.J. Ann. Rev. Crim. Proc. 1226, 1253 n.3137 (2023) (reviewing case law requiring prisoners to exhaust the Bureau of Prisons’s administrative remedies before seeking relief in federal courts).
Adam Liptak, Justices, 5-4, Tell California to Cut Prisoner Population, N.Y. Times (May 23, 2011), https://www.nytimes.com/2011/05/24/us/24scotus.html [https://perma.cc/WP3E-UEQS].
See id. at 508 & nn.12-13 (collecting cases and various formulations of the hands-off doctrine in the 1940s through 1960s); id. at 515 (“In ruling that an inmate’s complaint lies beyond the scope of judicial review, courts invariably advance a rationale based on a quasi-‘separation of powers’ argument.”).
Platek v. Aderhold, 73 F.2d 173, 175 (5th Cir. 1934). For cases relying on Platek, see, for example, Sarshik v. Sanford, 142 F.2d 676, 676 (5th Cir. 1944); Shepherd v. Hunter, 163 F.2d 872, 874 (10th Cir. 1947); Numer v. Miller, 165 F.2d 986, 986-87 (9th Cir. 1948); Williams v. Steele, 194 F.2d 32, 34 (8th Cir. 1952); and their respective progeny.
See Miller v. Snook, 15 F.2d 68, 69 (N.D. Ga. 1926) (“Under our system of government the judicial and executive functions are very substantially separated. The ascertainment of guilt and the fixing of punishment are essentially judicial. The seeing that the punishment is executed and enforcing the judgment of the court is executive. Discretion is given the courts in fixing punishment before execution begins, but after execution commences the prisoner is considered to be beyond the power of the court and in the hands of the executive. . . . Considering our frame of government, it would seem that the power of the court should logically end when the prisoner passes into the custody and control of the executive under a legal and valid sentence.”).
Ira P. Robbins, The Cry of Wolfish in the Federal Courts: The Future of Federal Judicial Intervention in Prison Administration, 71 J. Crim. L. & Criminology 211, 213 (1980); see also Haas, supra note 24, at 829 (concluding, as of 1977, that “the continuing erosion of each of the five major justifications for judicial refusal to assess the constitutionality of prison life indicates that the hands-off policy has been refuted with considerable success and has lost much of its previous vitality” while conceding, presciently, that “despite the obvious relaxation of judicial restraint in the correctional field, . . . it is still too early to sound the death knell for the hands-off doctrine”). But for the major treatment of this topic, see generally Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998). The book takes the fruits of prison-reform litigation in the 1960s and 1970s as the signal example of what it calls judicial policymaking. See Feeley & Rubin, supra, at 30-95, 145-48. Whether this form of judicial intervention represented a departure from or instead a return to the roots of American prison law is among the questions this Note considers.
E.g., Procunier v. Martinez, 416 U.S. 396, 404 (1974) (“Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration.”); Hughbanks v. Dooley, 788 F. Supp. 2d 988, 993 (D.S.D. 2011) (same); Jarrett v. Faulkner, 662 F. Supp. 928, 929 (S.D. Ind. 1987) (same); Money v. Pritzker, 453 F. Supp. 3d 1103, 1129 (N.D. Ill. 2020) (“There are serious separation of powers concerns, too, [raised by plaintiffs’ requested release order] because running and overseeing prisons is traditionally the province of the executive and legislative branches.” (citing Turner v. Safley, 482 U.S. 78, 84-85 (1987)).
E.g., Skipper v. S.C. Dep’t of Corr., 633 S.E.2d 910, 914 (S.C. Ct. App. 2006) (“Courts traditionally have adopted a ‘hands off’ doctrine regarding judicial involvement in prison disciplinary procedures and other internal prison matters, although they must intercede when infringements complained of by an inmate reach constitutional dimensions.” (quoting Al-Shabazz v. State, 527 S.E.2d 742, 757 (S.C. 2000))); Hamersley v. Ind. Dep’t of Corr., No. 18A-PL-955, 2019 WL 440972, at *2 (Ind. Ct. App. Feb. 5, 2019) (embracing a “hands-off approach” as a “long-standing principle in this state” (citing Kimrey v. Donahue, 861 N.E.2d 379, 383 (Ind. Ct. App. 2007))); Washington v. Meachum, 680 A.2d 262, 283 (Conn. 1996) (“We are . . . unwilling to invade the province of the department and order specific modifications of department [of correction] regulations or otherwise micromanage attorney-client contact in a prison setting.”); Alqawasmeh v. State, 328 So. 3d 321, 322 (Fla. Dist. Ct. App. 2021) (“‘Operation of the county jail is within the province of the executive and legislative branches of government, not the judicial branch.’ . . . ‘[U]nder the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.’” (first quoting Armor Corr. Health Servs., Inc. v. Ault, 942 So. 2d 976, 977 (Fla. Dist. Ct. App. 2006); and then quoting Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985) (alteration in original))).
See, e.g., In re Request to Modify Prison Sentences, 231 A.3d 667, 686 (N.J. 2020) (affirming arguments that “point[] to separation of powers concerns . . . [to the effect] that ‘control of policy-making [belongs] to the Governor and Legislature’” (quoting Caporusso v. N.J. Dep’t of Health & Senior Servs., 82 A.3d 290, 298 (N.J. Super. Ct. App. Div. 2014) (fourth alteration in original)); cf. Winston v. Polis, 496 P.3d 813, 820 (Colo. App. 2021) (assessing whether “the trial court—invoking separation of powers principles—[rightly] dismissed Plaintiffs’ claims,” which would have required “scrutinizing whether the government is violating [prisoners’] basic liberties”).
Here and throughout this Note, I use the term prison in an expansive sense, covering jails, houses of correction, and penitentiaries. I take my cue, in part, from modern courts, which have applied versions of the separation-of-powers reasoning underlying the hands-off doctrine indiscriminately to prisons and jails. See, e.g., supra note 18 (citing Turner v. Safley, a prison case); supra note 19 (citing Bell v. Wolfish, a jail case); supra note 41 (citing state prison and jail cases). I also use the term prison in an expansive sense because the differences between the prison and the jail were not altogether fixed in the period under review. Prisons have been defined as places of punitive incarceration, jails as places of (pretrial) detention. See, e.g., Incarceration and the Law: Cases and Materials 4-5 (Margo Schlanger, Sheila Bedi, David M. Shapiro & Lynn S. Branham eds., 10th ed. 2020). For much of the history of secular Western criminal law, on those definitions, prisons did not exist. Death, maiming, and fines were the ordinary punishments for crime, not incarceration. See, e.g., John H. Langbein, The Historical Origins of the Sanction of Imprisonment for Serious Crime, 5 J. Legal Stud. 35, 36-38 (1976); Richard Starke, The Office and Authority of a Justice of Peace Explained and Digested 232 (Williamsburg, Alexander Purdie & John Dixon 1774) (“[T]he Jail is intended, in most Cases, for Custody and not for Punishment, and Confinement itself . . . .”). But see, e.g., Ralph B. Pugh, Imprisonment in Medieval England 10-17 (1968) (noting the tendency “to underestimate the antiquity of penal imprisonment” in systems of both secular and ecclesiastical law and offering examples of medieval English punitive incarceration). That said, American independence roughly coincided with an international penal-reform movement that introduced imprisonment as the standard punishment for serious crimes. See, e.g., Erin E. Braatz, The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century, 106 J. Crim. L. & Criminology 405, 426-54 (2016). But cf. Langbein, supra, at 44-53 (dating the rise of punitive incarceration earlier, to the seventeenth century, with the establishment and spread of workhouses for the poor, concluding furthermore that “[t]he modern sanction of imprisonment for serious crime traces back to the workhouse for the poor more than to any other source”). Even those states that came later to this type of penal reform, like South Carolina, see Reid C. Toth, Prisons and Penitentiaries, S.C. Encyc. (Aug. 22, 2022), https://www.scencyclopedia.org/sce/entries/prisons-and-penitentiaries [https://perma.cc/VRV5-RFHT], had sometimes previously opened their jail doors to prisoners on federal criminal process, see Act of Dec. 20, 1800, 1800 S.C. Acts Dec. Sess. 30, 30, which the 1790 Federal Act for the Punishment of Certain Crimes Against the United States provided as a sanction, see Act of Apr. 30, 1790, ch. 9, §§ 2, 5-7, 11-13, 15, 18, 1 Stat. 112, 112-16. Put simply, jails sometimes performed double duty as prisons during the Founding Era and beyond.
A brief word, here, about sources of and citations to old state statutes in this Note. Where my citation style follows the form given for state session laws in The Bluebook, see The Bluebook: A Uniform System of Citation 242-94 tbl.T1.3 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020), the date of enactment, title, chapter numeration, section numeration, pagination, text, and other information pertaining to the cited statute are drawn from the relevant session laws volume represented in HeinOnline’s indispensable (if imperfectly word-searchable) Session Laws Library.
I set aside supportive evidence from elsewhere in the United States. There is no shortage of it. See, e.g., Act of Feb. 10, 1798, ch. 4, §§ 18-19, 38, 1798 Ky. Acts 11, 16, 25; Act of Dec. 19, 1799, ch. 10, 1799 Ky. Acts 30, 30-31; Act of Nov. 7, 1803, ch. 31, § 6, 1803 Tenn. Pub. Acts 76, 78-79; Act of Mar. 9, 1797, §§ 2, 5, 7, in The Laws of Vermont, of a Publick and Permanent Nature: Coming Down to, and Including, the Year 1824, at 217, 217-18 (William Slade, Jr. ed., Windsor, Simeon Ide 1825); Act of Nov. 14, 1803, § 1, in The Laws of Vermont, supra, at 229, 229.
I also set aside congruent evidence, past and present, from abroad (apart from England), except here to note that what I call the eyes-on doctrine is not uniquely Anglo-American. See, e.g., Code pénitentiaire [Penitentiary Code] art. D131-2 (Fr.) (“Lors de ses visites d’établissements pénitentiaires, le juge de l’application des peines vérifie les conditions dans lesquelles les personnes condamnées y exécutent leur peine. Il lui appartient de faire part de ses observations éventuelles aux autorités compétentes pour y donner suite.”); Stanislaw Plawski, Le Contrôle Judiciaire de l’Application des Peines en Droit Comparé, 25 Revue Internationale de Droit Comparé 375, 377-78, 386 (1973) (discussing the French tribunals presided over by these juges de l’application des peines, who supervise the execution of criminal punishment, and analogous tribunals in other countries); Albert Cheron, De l’Intervention de l’Autorité Judiciaire dans l’Exécution des Peines et des Mesures de Sécurité, in Quatrième Congrès International de Droit Pénal, Paris (26-31 Juillet 1937): Rapports 541, 541-42 (1937) (discussing the separation of powers in relation to reform proposals antecedent to the establishment of the juges de l’application des peines system in France); Robert Simonnet, Du Rôle du Juge dans l’Exécution des Peines 39-43 (1934) (analyzing, as Albert Cheron does not, the historic legacy in France of judicial oversight of prison administration). In future work, I plan to take up the eyes-on doctrine as a topic in comparative penal law.
See, e.g., State v. Jerido, No. 2209011322, 2024 WL 3887189, at *1 (Del. Super. Ct. Aug. 21, 2024) (“In Delaware, courts are ‘generally very reluctant to interfere with the administration of prisons.’ The administration of the State prison system falls ‘within the auspices of the Executive branch of our State government.’” (quoting State v. Goodman, No. 0805001946, 2010 WL 547394, at *2 (Del. Super. Ct. Feb. 9, 2010)); Fuentes v. Choate, No. 24-cv-01377, 2024 WL 2978285, at *13 (D. Colo. June 13, 2024) (“Courts in general are reluctant to intrude on the administrative aspects of institutional facilities.” (citing Turner v. Safley, 482 U.S. 78, 85 (1987))); Rindahl v. Reisch, No. 22-CV-04073, 2024 WL 960913, at *3 (D.S.D. Mar. 6, 2024) (“A preliminary injunction is not a mechanism for courts or inmates to insert themselves into prison administration by determining what is the most cost efficient or effective processes and policies for the Department of Corrections to implement. Such decisions are exclusively within the purview of the legislative and executive branches, not the judiciary.” (citing Turner, 482 U.S. at 84-85)); Sheldon v. Bureau of Prisons, No. 23-cv-00273, 2024 WL 473534, at *4-6 (D. Colo. Feb. 7, 2024).