Rethinking the Reasonable Response: Safeguarding the Promise of Kingsley for Conditions of Confinement

Hanna Rutkowski*

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees would no longer need to demonstrate that officials subjectively intended to harm them, only that the force they applied was objectively unreasonable. Courts of appeals have begun to extend this shift to claims involving conditions of confinement, but the promise of that move is threatened by the availability of a cost defense for officials who respond reasonably to detainees’ needs given the resource constraints they face. This Note argues that pretrial detainees can only be adequately protected from punishment if the reasonable response includes an affirmative duty to notify superiors of those constraints.

* J.D., May 2021, University of Michigan Law School. A heartfelt thank you to everyone who helped me throughout this process, whether by improving my writing or just keeping me balanced. That includes my family, friends, the Notes Editors from Volumes 118 and 119, and everyone else at MLR. I owe a special debt to Brian Remlinger, Keagan Potts, and Mollie Krent for their detailed, thoughtful, and supportive feedback, and I am honored to be published alongside my good friend, Pat McDonell—here’s to making the second weekend.