Importing Welfare State Failures into Prison Law

Norwegian prisons, often touted as the world’s most humane, rely on an “import model” for providing services. Under this model, the government agencies responsible for providing social services in the free world are responsible for providing the same inside of prisons. While the model serves a number of purposes, a main one is to demonstrate that prisons are not severed from the rest of society—people inside prison retain the same right to social services that they had outside of it.

In the United States, there is nothing to import: no right to safe housing, or education, or medical care. Incarcerated people cannot obtain these rights in the same format as their fellow Americans outside of prison because the imprisoned are the only ones who have them. Because the state has prevented them from providing for themselves, they are the only Americans with a right, for example, to medical care, even if the right only requires the state to clear the low bar of the Eighth or Fourteenth amendments.

While the United States lacks Norway’s welfare state successes to import, the concept helps us understand that the opposite has occurred: the federal judiciary has imported welfare state failures into its doctrines governing prison conditions. Whereas Norway regulates its prisons top-down through federal legislation and regulation, the United States largely regulates its prisons bottom-up through litigation, leaving judges to determine the extent of prisoners’ basic rights.

Welfare state failures should be irrelevant to the articulation of these rights as a doctrinal matter, both because the technical legal rights incarcerated people have are unique to them and because carceral facilities prevent their charges from self-care. Nonetheless, a retributive intuition takes hold: people who are in prison should not have it better than the working poor who are not, regardless of how cruel the implications. Across a broad range of subject matters, the federal judiciary looks to American welfare state failures to justify carceral barbarism.