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cases represented a new wrinkle in prison law: the prisoners’ rights movement. Prisoners had always had (in theory) certain rights; but courts had been extremely reluctant to get involved in the reality of prison life. A minor Pennsylvania case, from a district court in Allegheny County in 1912, tells the story. The plaintiff, in jail, refused to go to religious services on a Sunday. The keeper threw him in the dungeon; later, he was forced to attend “religious exercises.” Plaintiff went to court, claiming his rights had been violated. The court brushed his complaint aside. The warden, said the court, had the kind of power and control over an inmate that parents have over their children. If a parent wants a child to go to church, the child has to go.68

To this judge, and to most judges in general (and, no doubt, the general public), it was sheer chutzpah for a convict to whine and complain about prison conditions. A prisoner, as one nineteenth-century court put it, was a “slave of the state.”69 The prison, in short, was a zone of power and immunity from law in which warden and guards could do as they pleased—except in very extreme cases. But, starting in the 1960s, a series of decisions, reflecting a new form of activism, changed the legal situation dramatically.

Talley v. Stephens was an Arkansas case, decided in 1965. Three convicts complained that prisoners were savagely whipped for “infractions of discipline,” and for not working hard enough in the fields.70 The federal court listened, and acted: it issued an order. Arkansas prisons, for example, were forbidden to use corporal punishment, until there were “appropriate safeguards” to keep whipping fair and under control.71 A wave of scandals and investigations followed. The Arkansas legislature created a Penitentiary Study Commission in 1967; heads rolled; changes were made. But prisoners wanted more. More lawsuits followed, and in 1970, in Holt v. Sarver, a federal court declared the whole state system to be one giant violation of the Constitution, one giant act of cruel and unusual punishment.72 Conditions and practices in Arkansas were “so bad as to be shocking to the conscience of reasonably civilized people.” They had to be changed.

In the 1960s, Arkansas ran its prisons on the basis of the “trusty” system; this system, used in Arkansas, Louisiana, and Mississippi, gave great power to convict favorites (“trusties”). In Cummins prison, in Arkansas, for example, there were “only 35 free world employees” for “slightly less than 1,000 men.”73 This was a cheap way to run a prison, but hardly enlightened penology. The effect of prisoners’ rights cases in Arkansas was to force the state to hire a more professional (and costly) staff.

In other regards, the situation in Arkansas was cruel, but (alas) hardly unusual, especially for the South. In the years after Holt, dozens of lawsuits were filed, and the courts in many states put their prison systems under a kind of tutelage. The classic prison was what Erving Goffman has called a “total institution.”74 The classic prison was (or was supposed to be) a model of discipline; the prisoner was silent, isolated, cut off from the world, helpless but not hopeless—raw matter, which the prison tried to mold. The prison controlled every aspect of the prisoner’s life, the clothes he wore, the books he read, the mail he wrote, when he got up and when he went to sleep, what he ate, even the way he cut his hair. But prisoners were now demanding an end to this situation. They demanded that the total institution give up some of its totality.

Prisoners won some notable victories. Regulations in California made it a “privilege,” not a right, for a prisoner to send and get mail. A prisoner could not get or send “inflammatory,” “inappropriate,” or obscene letters, or letters about “criminal activity.”75 In Procunier v. Martinez (1974), the Supreme Court struck down those California regulations.76 The Court also struck down an administrative rule that, in effect, did not let prisoners (and their lawyers) use law students and paralegals as