Issues

In the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and offers avenues for reform.

The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary within any jurisdiction. BARD is a linguistically vague and indeterminate standard. Second, evidentiary and procedural regimes will differ from state to state and from country to country. Differences in such regimes will functionally affect what constitutes BARD. We demonstrate how plea bargaining, declination, and diversionary programs will affect what constitutes BARD by affecting the proportion of factually guilty and innocent defendants that proceed to trial (incidentally affecting any distribution of errors). Third, we account for and respond to how the debate surrounding BARD is imbued with a deterministic focus on solving what BARD is and should be, which has proven to be a futile quest. Scholars must embrace—not ignore—the complexity that permeates our evidentiary and procedural regimes.

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger group of defendants and cases are treated with legally sloppy inattention, disrespect, and even violence. These variations are a function of, among other things, distinctive institutional choices: the strikingly diverse organizational arrangements, resource allocations, and routine decision-making cultures within each of our major penal institutions. Under the influence of both federalism and localism, we tolerate a highly decentralized and internally inconsistent criminal system which distributes resources, status, and accountability unequally. As a result, American defendants are subject to a broad and often conflicted spectrum of operative criminal practices, principles, and norms, some far more punitive than others. These institutional differences represent a kind of systemic inequality, created and imposed by the workings of the criminal apparatus itself. While they reflect the well-studied inequalities that flow from defendant wealth, race, and neighborhood, they also inflict their own bespoke brand of unequal treatment through the unique processes, consequences, and normative values of criminalization. At the most foundational level, they alter the significance of basic legal principles such as due process, accuracy, and fairness, downgrading them under pressure from divergent institutional thinking and cultures. As a result, our very notions of criminality, justice, and equal treatment are unfairly protean: institutionally changeable and maldistributed throughout the penal system. This Article maps these maldistributions and the myriad ways in which the organization and operation of our basic criminal institutions shake out as powerful drivers of penal inequality.

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. For homeless people, probation is often just a stepping stone to incarceration instead of a turn away from it. Using Illinois as a case study, this Comment demonstrates the way the criminalization of homelessness makes probation especially difficult for those without housing to successfully complete. There are over 470,000 people on probation in Illinois, compared to just over 27,000 in the Illinois prison population. Illinois does not keep statistics about the number of probationers experiencing homelessness or housing insecurity, so studying the exact impact of homelessness on probation in Illinois is difficult. Studies from other areas of the country show that people who are facing housing insecurity are 36% more likely to unsuccessfully complete probation. Several general probation requirements are difficult for homeless people to follow. Requirements such as reporting to parole officers, avoiding interactions with law enforcement, not associating with convicted felons, and regularly appearing for court dates present unique problems for people without homes. To help alleviate the inequalities within the system, probation departments should begin collecting data on the housing status of probationers, create dedicated homeless programs within probation offices, work on inter-agency and resource collaboration for homeless services, end incarceration for probation violations, and invest in permanent supportive housing.