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For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights statutes in Monroe v. Pape. Still, Monroe v. Pape was decided in 1961, and it was not until 15 years later, in Estelle v. Gamble, that the Eighth Amendment's prohibition of cruel and unusual punishment came to be used as a tool for improving prison conditions.

Today, with federal court dockets full of cases alleging that conditions of confinement violate the Eighth Amendment – particularly with respect to overcrowding – it is easy to forget that, prior to Estelle, the Eighth Amendment had been applied by the Court only to cases in which a mode of punishment, usually a method of execution, was at issue. Estelle thus redefined the constitutional concept of "punishment" by bringing the protections of the Cruel and Unusual Punishments Clause into the modern prison.

Despite the noble goals of Estelle, however, the decision is fundamentally flawed and has had a detrimental impact upon the very prisoners it was intended to protect. The problems stem from-the Court's failure to take sufficient account of the realities of the modern prison. Imprisonment involves not only the fact and duration of confinement, but also the conditions under which that confinement occurs. Prisons are literally miniature cities in which births, deaths, and even marriages occur. Prisons have their own governing structure, police force, industries, schools, medical facilities, housing complexes, and cemeteries.



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