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Copyright (c) 2009 Fordham Urban Law Journal
Fordham Urban Law Journal
36 Fordham Urb. L.J. 27
ARTICLE: GETTING REAL ABOUT RACE AND PRISONER RIGHTS
* Michael B. Mushlin, J.D., is a Professor of Law at Pace Law School; Naomi Roslyn Galtz, J.D., Ph.D., is a
Research Fellow for the Graduate Program in Real Estate Law at Pace Law School. The authors wish to thank Will
Diaz, Class of 2009, Pace Law School for his excellent research assistance; David McMillan of Fordham Law School's
Urban Law Journal for his astute editing; and Caroline Hsu and the students of Fordham Law School for convening a
truly exciting symposium on conditions of confinement. We benefited greatly from discussion at that event.
... Meanwhile, communities that are already short on resources, and removed from mainstream sources of power, are
further undermined politically and economically by the prison system and related civil disabilities, including the loss of
census credits (and attendant funding) for inmate populations which are ascribed to the communities where prisons sit.
... Despite the historical intersection between sharply rising incarceration rates for non-whites and the contraction of
prisoner rights, very little work has been done to suggest why, or how, race matters for the law that governs the
treatment of prisoners.
... Although courts cannot remedy implicit bias, they can insist on heightened forms of process
and oversight to ensure that, in the uniquely pressured, power-laden, and racialized context of prisons, biased decisions
do not reign unchecked.
... It is difficult to ignore that, over the very same years that prisoner rights have contracted and
prison conditions have regressed, prison populations have grown dramatically more black and brown.
... A basic and
bitter irony emerges from a review of recent case law at the intersection of race and prisoner rights: American courts
have been ready and willing to "crack down" on racial segregation in prison housing - an infrequent practice that may
have demonstrable benefits ; yet simultaneously, by endorsing the PLRA and deepening judicial deference to prison
administrators, the courts have significantly curtailed civil rights protections available to a population of two million,
mainly non-white individuals currently incarcerated in the United States.
... In the prison context, this raises troubling
questions concerning jailors' treatment of prisoners, the ability of non-white inmates to air grievances, and the courts'
ability to detect decisions perniciously influenced by race.
... The fact that sending communities are overwhelmingly
low-income, poor, and disproportionately enmeshed with the criminal justice system means that communities with the
largest stake in the prison system are poorly positioned to advocate for prisoner rights.