Abstract
One word sums up the current state of a prisoner’s rights to fresh air and direct sunlight: conditionality. Because the rights are conditional in the United States, the sword of litigation hangs above prisons while residents are subject to violations of their limited constitutional rights. International law and medical research respectively recognize the right to, and need for, outdoor recreation. However, the grueling deliberate indifference standard debilitates attempts to change this reality in the courthouse. Thus, the impetus of change must come from the expansion of statutory rights. The right to fresh air and direct sunlight can be energized through aspirational, yet attainable recreation standards. But these standards must be clear and particularized. Because prisons will do the bare minimum required by law, these policies must also eliminate or at least reduce deference to prison administrators. States can examine other recreation laws, such as laws for school children’s recreation that are intentionally designed for the health of their beneficiaries. Ultimately, a new statute must use focused, tight language that outlines the exact minimum standards and explicitly expresses its desired outcomes. Even though the Eighth Amendment space contains a hefty amount of deference toward prison administrations, clear and explicit statutory language can begin to sap the power of prison administrators and put power back into the hands of the people—the taxpayers—who send their funds into a black hole of transparency and constitutional rights.
Recommended Citation
14 Indiana Journal of Law and Social Equality 91
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