Chapter Authors

SpearIt

Document Type

Book Chapter

Book Authors/Editors

Criminal Justice Section

Publisher

American Bar Association

Publication Date

2022

Abstract

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer perverts justice by serving as a subterfuge for prison officials to avoid liability for abusive conduct, unethical prison policy, or the continued violation of constitutional rights.

Even absent such obstacles to accessing the legal system, litigating a case from prison presents a unique set of difficulties beyond substantive law. Incarcerated people are a particularly vulnerable class, some of which is due to their social and class status, including the general lack of education, lack of legal resources, inability to afford an attorney, and limitations in accessing the internet, telephones, and printed media. Some of the vulnerability is due to the prison’s sheer dominance over its subjects, which Erving Goffman classically described as 'total' because it directs practically every aspect of a person’s existence and routine. He found that the prison environment creates a lost sense of personal safety coupled with the very real fact that the environment does not guarantee physical integrity. The sentiment resounds loudly in the present as one scholar describes: “From moving inmates, to reclassifying them, to taking away their legal paperwork, prison officials exercise extreme levels of control over inmates ’lives'. In the most toxic situations, prisoner-petitioners are known to face retaliation and other unfavorable treatment at the hands of administration and staff for the act of filing a grievance or lawsuit.

What follows considers how transfer and mootness partner together to perform a vanishing act; like a skillful magician and trusty assistant, transfer and mootness can make justice disappear right before our very eyes. As a historical matter, mootness has been conceived as a doctrine of fairness, but when triggered by a prison transfer, it is anything but. Transfer and mootness are a lethal combination that can kill a legal claim and reduce to nothing all the time, effort, and sacrifice of an individual who, under the hardship of prison, has managed to crack through the judicial bureaucracy and get an audience in court.

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