Judges as Agents of Cruelty: Policy Learning and Official Actors
[C]ourts play a key role in sustaining and even creating the cruel conditions currently found in American prisons and jails. In this sense, judges, too, become agents of cruelty. Just as prison officials learn cruelty through repeated exposure to prisoners in a context that denies their shared humanity, judges develop a cruel disposition towards prisoners through the repeated demand that they validate as not cruel conditions that are clearly at odds with the state’s carceral burden. Existing constitutional standards require courts to find for the state even when prisoners face obvious risks of serious physical or psychological harm. To do so, judges must learn to suppress any instinctual sympathy they may have for follow human beings who have experiences gratuitous suffering. Indeed, if they are to enforce prevailing standards, judges must learn to cease altogether to recognize prisoners’ shared humanity–a lesson, it bears remarking, that once learned only makes it easier for courts to satisfy the imperative of judicial deference to prison officials.
Sharon Dolovich, “Cruelty, Prison Conditions, and the Eighth Amendment” (pdf)