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MetamorphosisHow to Transform Punishment in America$
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Robert A. Ferguson

Print publication date: 2018

Print ISBN-13: 9780300230833

Published to Yale Scholarship Online: September 2018

DOI: 10.12987/yale/9780300230833.001.0001

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Rights Talk and the Enabling of Wrongs

Rights Talk and the Enabling of Wrongs

(p.61) 4 Rights Talk and the Enabling of Wrongs

Robert A. Ferguson

Yale University Press

This chapter illustrates how the typical court opinion on prisoners' rights proclaims constitutional guarantees in principle while taking them away in practice. Judges say a right is available but not in the decision before them. One of the ironies in prison abuse comes here. The abstractions in rights talk allow many particulars to be ignored even as the stress on individual rights ignores the collective nature of prison problems. The rubrics that protect civil rights depend on balancing tests between particular redress and communal interests, and these tests invariably work against prisoner complaints through security claims. Prejudgment easily dismisses the person complaining through the crime committed, sometimes long ago.

Keywords:   prisoners' rights, constitutional guarantees, prison problems, civil rights, prisoner complaints, security claims, prejudgement

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