Prison law is characterized by judicial deference to penal administrators. Despite the well-documented horrors that occur behind prison walls, federal and state courts often decline to intervene, asserting, among other things, that prisoners’ rights are limited and that the judicial branch lacks the power and expertise to get involved in the inner workings of detention facilities. Moreover, jurists often assume that the nation’s first courts largely stayed out of prisons and jails, and contemporary judicial deference is therefore historically rooted. This Article complicates that historical narrative. It shows that the nation’s Founding generation established an expansive system of judicial oversight over prisons and jails that lasted through much of the nineteenth century. During that period, state and local judges across the fledgling republic conducted regular inspections of detention facilities; set prison and jail rules and policies; appointed, removed, and occasionally served as penal administrators; managed the funding and building of jail facilities; and remedied abuses. On occasion, federal courts also interceded on behalf of prisoners. Relying on neglected state statutes, case law, and reports, as well as the writings of prison theorists and observers, this Article explores the oft-ignored history of American prison law. In so doing, this Article shows how far modern courts have diverged from their early predecessors, especially at the state and local levels. For jurists — and particularly originalists — who use history to inform contemporary doctrine, this Article provides a fuller account of the early relationship between courts and prisons. Finally, this Article reveals a model of judicial oversight from which scholars and advocates can learn.

• Harvard Law review
• Volume 138
• Issue 

Wynne Muscatine Graham is a legal fellow at the Roderick & Solange MacArthur Justice Center’s Supreme Court & Appellate Program in Washington, D.C., where she litigates civil rights cases nationwide, focusing on solitary confinement appeals and broader prison conditions. She also co-teaches the Prisoners’ Rights Clinic at UCLA School of Law. (MacArthur Justice, UCLA School of Law)

Graham earned her J.D. from Yale Law School in 2022. During her time there, she was involved with the Rule of Law Clinic and contributed to the Liman Center’s 2021 “Time-in-Cell” report on solitary confinement. She also served as a Liman Law Fellow. (UCLA School of Law)

Prior to law school, Graham worked on prison reform initiatives in North Dakota and served as an investigator in the Impact Litigation Unit at the Southern Center for Human Rights. She graduated summa cum laude from Harvard University in 2017 with a B.A. in philosophy. (UCLA School of Law, MacArthur Justice)

Her scholarly work includes the forthcoming article, “The Forgotten History of Prison Law,” to be published in the Harvard Law Review. (MacArthur Justice)