Northeastern University Law Journal, Vol. 7, No. 1, Spring 2015
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Prisoners’ Rights in the Modern Era VOLUME 7, NO. 1 SPRING 2015 ii © 2015 Northeastern University Law Journal Northeastern University School of Law 416 Huntington Avenue Boston, Massachusetts 02115 Cite as 7 NE. U. L.J. (2015). VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL iii Editorial Board Editors-in-Chief Brian P. Morrissey Matthew Lysiak Managing Editors Jordan L. Payne Emma T. Hunter Articles Editors Samuel C. Bauer Kathryn Childs Alissa E. Brill Maggy Hansen Clark Wheeler Jennifer M. Kim Publications Editors Ashley L. McCormack Brittany N. Sobieraj Symposium Editors Janine M. Paré Gillian R. Decker Extral Legal Editors Ariella N. Sparr Daniel J. Ruemenapp Advisors Sarah Hooke Lee, Assistant Dean & Director of Information & Research Services & Associate Professor of Law Michael Meltsner, George J. & Kathleen Waters Matthews Distinguished University Professor of Law Gabriel Arkles, Legal Research & Writing Professor Lee P. Breckenridge, Professor of Law iv VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL v Staff Senior Staff Editors Daniel P. Bishop Hannah Florman Caitlin Perry Njideka Chukwu Kevin F. Gaughan Gabrielle N. Pingue Nichole L. Clarke Bart Johnston Carson M. Shea James Devereux Nana Liu James S. Tam Maximilian Ferullo Patricia Martin Georgi J. Vogel Rosen Amy McKendry Staff Editors Samantha Albright Cory Lamz Avana A. Anderson Jane Langdon-Gray Ivan Atochin Brittany K. Lazzaro Allison Belanger Soyun Christine Lee Michael W. Bell Michael Lipson Taryn M. Beverly Michael Lloyd Brooke Bischoff Richard B. Lumley Amanda Bradley Kaitlyn Mahoney Chelsea M. Brisbois Lauren N. Maloney Jerome S. Brooks Trevor S. Maloney Bridgette D. Buchanan Molly Manson Anastasia Butler Lou Mattei Travis Close Jonathan A. Miller Andrew J. Collins Amanda Montel Jonathan Culpepper Kelsey Morales Alexa Daniel D. Connor Moroney Jennifer Denker John Murray Patrick J. Dolan April L. O’Brien Mary Donahue Adam Rhodes-Rogan Robert Donoghue Greg Sager Kristina Ferguson Shauna C. Segadelli Elena Francis Anne Sheldon Molly Gachignard Katherine Stock Michael Godbe Pamela Swanson Timothy Goodin Leah Tedesco Lacey F. Gordon Katherine Terenzi Christopher W. Huntsman Courtney Thomas So Young Kang Kaitlyn Thomas Brenda K. Kombo, Ph.D. David Tobias Gabriel U. Labbé Jessica Winn vi Non-Discrimination Policy Northeastern University does not condone discrimination on the basis of race, color, religion, religious creed, genetics, sex, gender identity, sexual orientation, age, national origin, ancestry, veteran, or disability status. VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL vii Faculty Jeremy Paul Richard A. Daynard Dean & Professor of Law University Distinguished Professor of Law Dan Danielsen Melinda F. Drew Associate Dean for Academic Aff airs & Lawyering Skills Professor & Professor of Law Director of the Academic Success Program Sarah Hooke Lee Rashmi Dyal-Chand Associate Dean & Director of Professor of Law Information & Research Services & Associate Professor of Law Peter D. Enrich Professor of Law Roger I. Abrams Richardson Professor of Law Daniel J. Givelber Professor of Law Libby S. Adler Professor of Law James R. Hackney, Jr. Associate Dean for Entrepreneurial Aziza Ahmed Programs & Research Support & Assistant Professor of Law Professor of Law Gabriel Arkles Wallace E. Holohan Legal Research and Writing Professor Clinical Professor & Director of the Prisoners’ Rights Clinic Daniel A. Austin Associate Professor of Law Karl E. Klare George J. & Kathleen Waters Matthews Brook K. Baker Distinguished University Professor of Law Professor of Law Hope Lewis Leo Beletsky Professor of Law Assistant Professor of Law & Health Sciences Kristin M. Madison Professor of Law and Health Sciences Lee P. Breckenridge Professor of Law Andrea S. Matwyshyn Professor of Law Margaret A. Burnham Professor of Law Susan Maze-Rothstein Senior Academic Specialist Martha F. Davis Professor of Law Daniel S. Medwed Professor of Law viii Faculty (cont.) Peter B. Sessa Michael Meltsner Associate Academic Specialist & Director, George J. & Kathleen Waters Matthews Community Business Clinic Distinguished University Professor Ira Sills Susan Barbieri Montgomery Lecturer in Law Executive Professor of Law & Business Susan Sloane Mary E. O’Connell Director of Legal Research & Writing in Professor of Law the LSSC Program Wendy E. Parmet Emily A. Spieler Professor of Law Hadley Professor of Law David M. Phillips Stephen N. Subrin Professor of Law Professor of Law Deborah A. Ramirez Kara W. Swanson Professor of Law Associate Professor of Law Sonia Elise Rolland Lucy A. Williams Professor of Law and Faculty Co-Director, Professor of Law LLM and International Programs Margaret Y. K. Woo Rachel E. Rosenbloom Professor of Law Associate Professor of Law James V. Rowan Professor of Law & Director of the Clinical Programs VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL ix Adjunct and Visiting Faculty Joshua L. Abrams Mary E. Landergan Hon. Jay D. Blitzman Neil T. Leifer Ken Bresler Margo K. Lindauer Arlene S. Brock Sophia Lingos Robert G. Burdick Leonard E. Milligan III Peter Campia Stephen M. Novak Dawn Eff ron Keith R. Osher Julian Fray Mark Paige Joshua S. Grinspoon Michael Pezza Jr. Hemanth C. Gundavaram Arnold R. Rosenfeld Margaret Hahn-Dupont Stuart Rossman Jessica D. Hedges Roberta L. Rubin Patricia Illingworth Amy Remus Scott Hon. R. Marc Kantrowitz Michael Tumposky Michael Keating Cara Wilking Peter M. Kelley Mark W. Worthington Stephen M. Kohn Rose Zoltek-Jick x VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL XI Editors’ Introduction It is with great pride that the Northeastern University Law Journal publishes its ninth issue, Prisoners’ Rights in the Modern Era. When the Journal was founded in 2007, it was the product of tremendous vision and hard work by Northeastern students, faculty, and administration. The Journal continues this tradition, carrying forward Northeastern University School of Law’s mission by advancing practice-based legal scholarship with a social justice focus. The Journal has steadily increased its staff size and its online presence, through publication of high-caliber student pieces on its online publication, Extra Legal. Each year, the Journal hosts a symposium exploring a contemporary topic of interest in the law. This annual event brings practitioners and academics from across the country together to begin discussions that advance our understanding of that topic. This issue contains the product of the symposium held in January 2014 on the topic of prisoners’ rights. As the incarcerated population in the United States steadily increases, the rights of those confi ned by the state are coming increasingly into focus. By design, the layout of this issue follows a linear progression, beginning with an examination of the causes of incarceration, transitioning to a view behind the bars, and ending with an investigation into post-incarceration life. Individually, the articles explore a variety of ways in which the system of mass incarceration impinges on the rights of prisoners, and off er solutions to guard this vulnerable population. This issue marks a turning point in the history of the Journal, as it will be the last issue based solely on a symposium topic. While the symposium-based publication model was well suited for the Journal’s early years, our consistent growth and success have aff orded us the opportunity to expand and diversify. We hope that by opening up each issue to articles on topics outside of the one chosen for the annual symposium, the Journal will be able to explore a wider variety of public interest topics, attract even more dynamic and cutting-edge scholars and practitioners, and expand the reach of its burgeoning infl uence. This issue would not have been possible without the tremendous eff orts of our Staff ers and Senior Staff ers. We are extremely pleased and proud to know the new iteration of this publication is being left in such capable hands. This decision to reformat the Journal, along with XII this issue itself, would not have been possible without the hard work and dedication of those who came before us. We would like to thank the Editorial Boards and Staff ers of years past. We are extremely appreciative of the guidance we received from our Faculty Advisors - Associate Dean Sarah Hooke Lee, Professor Michael Meltsner, Professor Gabriel Arkles, and Professor Lee Breckenridge. We would also like to thank Professor Daniel Medwed for his strenuous eff orts in securing speakers for the symposium that led to this issue. Lastly, we would like to express our gratitude to Dean Jeremy Paul, Associate Dean Dan Danielsen, and the entire faculty and staff of Northeastern University School of Law for their continued support of the Journal and its mission. The 2014-2015 Editorial Board owes a debt of gratitude to the 2015-2016 Editorial Board for the hard-work and dedication to excellence they demonstrated in making this publicaion a physical reality. Editorial Board Northeastern University Law Journal Spring 2015 VOL. 7 NO. 1 NORTHEASTERN UNIVERSITY LAW JOURNAL 1 Bar None? Prisoners’ Rights in the Modern Age Daniel S. Medwed1 The American public is perhaps more sensitized to the fl aws in our criminal justice system than at any time in our history. News accounts of wrongful convictions, racial profi ling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation—upwards of 1.5 million people housed in state or federal prisons according