Empathy for the Devil: How Prisoners Got a New Property Right
By Marianne Sawicki.
The United States Court of Appeals for the Third Circuit opened a “can of worms” when it declared “a new property right” for prisoners in Rodney Burns v. Pennsylvania Department of Corrections. The court held that assessing a charge against the funds in an inmate account impairs a cognizable property interest even before the actual deduction. Constitutional due-process protections attach to this newly recognized “right to security.” The Burns worms are bait for the hooks on two lines of inquiry. First, against a tide of judicial deference toward prison administrators, how did the Third Circuit reach this surprising result? Second, in its wake, what changes in prison disciplinary procedures should occur?
An analysis of the Burns decision will establish that the court adopted an empathetic stance toward the prisoner-appellant because it relied on an analogy to something familiar: the relation between a debtor and a judgment creditor. The court declined to demonize the prisoner rhetorically, as commonly happens when a prisoner files a complaint about prison conditions. Empathy plays an unavoidable, if often unrecognized, role in human decision making. But empathy generates bias in legal decisions only where the court, unaware of empathy’s function, allows it to work in a one-sided manner. A jurisprudence of empathy actively compensates for unfamiliarity with the perspectives and conditions of any party, especially one whose circumstances differ socially from those of judges. The Burns decision sheds light on other decisions where courts have rejected prisoners’ assertions of constitutional claims.
Before analyzing Burns, this Comment provides background with a survey of the landmark cases that define due process rights for prisoners. Although “[t]here is no iron curtain drawn between the Constitution and the prisons of this country,” incarceration brings limitations to constitutional rights. Those limits, imposed by the United States Supreme Court, bind state courts as well. Pennsylvania precedents provide part of the legal background for Burns because state law governs administrative procedures and regulations that affect prisoners in state correctional institutions. While the judicial rulings and administrative law of the Commonwealth of Pennsylvania do not bind other states, there is no reason to doubt that they are comparable to those of other states. The Third Circuit’s holding in Burns is binding precedent for federal courts within that circuit, and it may be persuasive elsewhere because it addresses “an issue of first impression across the courts of appeals.”