ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 468-471.

PRISONERS' RIGHTS: THE SUPREME COURT AND EVOLVING STANDARDS OF DECENCY by John A. Fliter. Westport, CT: Greenwood Press, 2001. 213 pp. Cloth $65.00. ISBN: 0-313-21475-6.

Reviewed by Bradley Best, Department of Public Management, Austin Peay State University.

PRISONERS' RIGHTS is a concisely written account of the United States Supreme Court's changing interpretations of the protections afforded to prison
inmates under federal statutory schemes and constitutional provisions. The core chapters of this book trace the mid-century ascendance of prisoners' rights before the Supreme Court bar, the varied decisions of the Burger Court, and the diminution of protections under the restraintist, dual federalist posture of the Rehnquist Court. At bottom, Fliter matches a keen doctrinal analysis with an examination of strategic interaction in Court decisions in key prisoners' rights cases. The result is an accessible, richly textured discussion of this historically under-treated area of constitutional law.

Chapters 1 and 2 of this book are written in an instructional, almost textbook-like style. Fliter begins by introducing the statutory and constitutional bases of prisoners' rights. He then moves to a generally correct explanation of the legal, attitudinal, and strategic models of Supreme Court decision making. Though useful to readers uninitiated in theoretical perspectives on judicial behavior, Fliter's presentation of the legal and attitudinal models is entirely standard. Chapter 2 is remarkable only in that he devotes 13 pages to a discussion of the four elements of the legal model, offering numerous examples of the failure of legal variables to explain changes in the protections afforded to prisoners. The author's account of the attitudinal model is, at two pages in length, comparatively brief and without
reference to the pioneering works of Pritchett and Schubert. Shortly thereafter, Fliter asserts that, "a strategic approach is best suited for a study of the doctrinal development of prisoner rights cases" (p. 35).

Fliter begins Chapter 3 by outlining several models of corrections employed in the nineteenth century and the efforts at penal reform that followed, such as the adoption of indeterminate sentencing and parole schemes. He then relates early conceptualizations of civil rights and several statutory provisions that increased prisoner access to the federal courts in the late 1800s. The largest portion of this chapter is dedicated to the development of Eighth Amendment doctrine between the 1890s and the Warren Court's 1962 decision incorporating the cruel and unusual punishment provision.

Chapters 4, 5, and 6 include detailed explanations of decisions in prisoners' rights cases between the due process revolution of the Warren Court years and recent terms of the Rehnquist Court. The essence of Chapter 4, and, arguably, the organizing theme of the entire book is captured in Fliter's discussion of the decision in TROP v. DULLES (1958). The majority opinion in TROP v. DULLES

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signaled the Court's adoption of a "flexible standard for Eighth Amendment violations" (p. 87)--one that would reflect changing societal definitions of decency. Fliter's most clarifying chapter, he observes that having spent much political capital in the BROWN v. BOARD OF EDUCATION (1954) decision, the Warren Court enhanced inmate access to the federal courts yet effectuated no significant expansion in substantive rights enjoyed by prisoners.

At 51 pages, Chapter 5 includes the author's most analytical treatment of prisoners' rights cases. Here, Fliter traces two distinct trajectories in Burger Court due process jurisprudence--an early effort on the part of the justices to redress decades of unfettered state action in the administration of prisons followed by the adoption of an interest-balancing, restraintist posture in the 1974-1976 period. Moreover, Fliter probes the impact of the Court's decision in WOLFF v. MCDONNELL (1974), namely the general climate of deference to prison administrators and the diminution of prisoner rights that followed. Much of the remainder of Chapter 5 consists of useful summaries of the several death penalty cases, including the GREGG v. GEORGIA (1976), WOODSON v. NORTH CAROLINA (1976), and COKER v. GEORGIA (1977) decisions. Also, the author explicates the Burger Court's return to a "proportionality" test and the adoption of the "deliberate indifference" standard (see RUMMEL v. ESTELLE 1980) in reviewing challenges to state activity vis-.-vis the cruel and unusual punishment clause of the Eighth Amendment.

The final two chapters relate the Rehnquist Court's narrowing of constitutional protections afforded to prisoners. Furthermore, the author briefly reviews the last 25 years of federal court retreat from a prison reform agenda and offers a final declaration that "at least some of the justices use strategy to advance preferred policy outcomes" (p. 193). In Chapter 6, Fliter links the majority coalition's underlying conservative ideology to its adoption of a restraintist, dual federalist orientation. The
most laudable feature of the chapter is the author's discussion of the lower-tier scrutiny mode of interpretation embraced by Justices Rehnquist, O'Connor, Scalia, Kennedy, and Thomas in reviewing government limitations on prisoners' liberties. Fliter concludes this important book with a short explanation of the Anti-Terrorism and Effective Death Penalty Act of 1996, Congress's effort to join statutory restrictions on habeas corpus review with the tough-on-crime flavor of Rehnquist Court decisions.

Even the most cursory reading this book will reveal two key strengths. First, each chapter is impeccably referenced and the essential features of each Supreme Court decision are immediately apparent. Second, as a comprehensive account of doctrinal shifts affecting inmates' rights, I am aware of none more efficiently related than that presented by Fliter. Thus, I recommend PRISONERS' RIGHTS as background reading for graduate seminars in civil liberties and civil rights law. Undergraduate audiences and readers unfamiliar with the various modes of constitutional interpretation and the concept of judicial role orientation are unlikely to appreciate the author's methodology.

Inasmuch as I commend Fliter's work, I have concerns about aspects of the book. In the introductory pages and, more forcefully, in the second chapter the author identifies strategic models as explanatorily superior to attitudinal accounts of Supreme Court decision making in prisoners' rights cases. Yet, Fliter makes no effort to systematically

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measure the comparative strength of attitudinal versus strategic explanations of these decisions. There is little doubt that PRISONERS' RIGHTS is an essentially non-empirical inquiry and hypothesis testing is not among the author's intentions. However, some investigation into case outcomes anticipated by an attitudinal model followed by a discussion of the elements of decisions explained only by a strategic account strikes me as necessary content.

It is equally important that Fliter does not inform the reader that the importance of strategic factors is highly contextual. For example, the author discusses many instances in which justices interacted via inter-chamber memoranda, seeking substantive revisions to majority opinions. We learn from Wahlbeck, Spriggs, and Maltzman (1998) that the probability of an opinion author accommodating another justice's views is correlated with such factors as "the size of the majority conference coalition, the ideological distance of the author from the majority coalition, the ideological heterogeneity of the conference majority coalition, and the positions taken by the majority coalition members and by non-strategic factors, including the author's workload and the complexity of a case" (p. 294). Moreover, Fliter's explanations for case outcomes suffer for lack of a more thorough application of strategic theory. In many instances, the reader is left to conclude that
the presence of strategic factors as independent variables is entirely idiosyncratic. In fact, judicial scholars are assembling evidence that strategic interaction occurs in regular, identifiable patterns. The result, in some instances, is a puzzling gap between the author's presentation of a decision and the conclusions he draws regarding the impact of strategic interactions. The following example illustrates this point.

In Table 7.1, Fliter lists twenty decisions in prisoners' rights cases, each of which he argues bear the markings of strategic interaction. The Court's decision in HARMELIN v. MICHIGAN (1991) is among those listed in Table 7.1. At the initial conference vote in Harmelin, Justices Rehnquist, Blackmun, O'Connor, Scalia, Kennedy, and Souter found no inconsistency between the Eighth Amendment's prohibition of cruel and unusual punishment and a state law imposing a mandatory life sentence on the defendant for possessing a large quantity of cocaine. Later, at the time of the final vote on the merits, Justice Blackmun abandoned the conservative majority and voted to reverse the Michigan Supreme Court's decision. Oddly, Fliter offers no explanation for Blackmun's decision to join Justices White, Marshall, and Stevens in dissent. He refers to no specific mode of strategic interaction plausibly linked to Blackmun's vote-switch.

I do not dispute that the final vote on the merits in HARMELIN v. MICHIGAN can be analyzed and explained in a strategic framework. It is possible that the outcome in this case is an example of a majority opinion author's (i.e., Scalia) refusal to accommodate a centrist viewpoint. Further, Scalia may have strategically calculated the consequences of losing Blackmun's vote, knowing that a minimum winning coalition could be maintained following a single-vote switch. Considering the model formulated by Wahlbeck, Spriggs, and Maltzman, Fliter might have guessed that the ideological distance between Scalia and Blackmun or the size of the conference majority made accommodation unlikely. Either explanation would have fit nicely with a strategic model of decision making.

Although his account of strategic interaction as a key independent variable in

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prisoners' rights decisions is, at times, problematic, I find Fliter's book to be nothing less than successful. The author's dual contributions to the study of constitutional law and judicial politics make this essential background reading for students facing doctoral examinations in public law. The depth and clarity of Fliter's analysis exceeds that presented in most constitutional law casebooks. Moreover. PRISONERS' RIGHTS is certain to prove equally insightful for scholars working the areas of criminal justice and judicial behavior.

REFERENCES:

Wahlbeck, Paul J., James F. Spriggs, and Forrest Maltzman. 1998. "Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court."
AMERICAN JOURNAL OF POLITICAL SCIENCE 42:294-315.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, TOPEKA, 347 U.S. 483 (1954).

COKER v. GEORGIA, 433 U.S. 548 (1977).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

HARMELIN v. MICHIGAN, 501 U.S. 957 (1991).

RUMMEL v. ESTELLE, 455 U.S. 263 (1980).

TROP v. DULLES, 356 U.S. 86 (1958).

WOLFF v. MCDONNELL, 418 U.S. 539 (1974).

WOODSON v. NORTH CAROLINA, 428 U.S. 280 (1976).

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Copyright 2001 by the author, Bradley Best.