“One of the Dirty Secrets of American Corrections”: Retaliation, Surplus Power, and Whistleblowing Inmates
Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under § 1983. Part III examines the controversy over determining damages, with a single dollar bill symbolizing what prevailing inmates can expect from a civil rights suit alleging unconstitutional retaliation. Part IV contends that inmate grievants possess many of the characteristics of whistleblowers and thus recommends that adverse changes in a grievant’s conditions of confinement within sixty days of filing a grievance ought to create a presumption of retaliation for administrative purposes, which, unless proven otherwise by clear and convincing evidence, would trigger administrative remedies intended to make the inmate whole as well as deter future retaliation.