The most obvious distinction between Britain and the United States in judicial review of prison matters is volume. While the British legal digests and reference works reveal only a few dozen cases dealing with all aspects of prison management,1 the equivalent American materials2 contain ever-growing numbers far too extensive to include more than a selective summary within the limited scope of this chapter. As the prison-law writer puts his pen to the page, there is very likely an American case pending on the subject of his research which might be decided before his ink dries.
The first part of this chapter will be devoted to a general history of American judicial intervention in prison disciplinary matters. Since there is a considerable body of American case law on prisons capable of being divided into numerous subtopics, it will be necessary only to lay a frame-work initially, leaving more detailed analysis for the next portion of this chapter and succeeding chapters. On the other hand, the comparatively modest number of cases in Britain makes topical analysis somewhat difficult. It will therefore be useful to set out the development of cases relating to judicial review of prison disciplinary matters in Britain chronologically and exhaustively with some reference back later on. The fact that such a detailed case-by-case history has not been done elsewhere should sufficiently commend this approach.3 More importantly, however, it should provide a continuum so that cases which might otherwise be read out of context to foreshadow prisoners' rights may be readily placed in historical perspective.
The blaze of judicial activity in the United States is a relatively recent phenomenon. For a long time the courts maintained a safe judicial distance from prison disciplinary matters, electing to invoke what is now called the "hands-off doctrine."4 This doctrine is traceable back into the nineteenth century, when judicial review of administration in general was not very commonplace and prisoners were among the less-than-favored classes. Perhaps the earliest expression of judicial noninterference was Ex parte Taws,5 an 1809 case in which a prisoner by writ of habeas corpus challenged the conditions of his confinement. A United States District Court in Pennsylvania denied relief to the prisoner, but even then recognized that there might be circumstances when a different result should obtain. Said the court,