Making Prisoner Rights Real

In this chapter, Lisa Kerr provides a case study of the dynamic Sharon Dolovich identifies: U.S. courts’ failure to extend maternal rights into the prison context. Focusing on the interest incarcerated mothers have in retaining custody of their newborn infants, the chapter illustrates how courts drain the content of mothers’ constitutional rights in response to the most minimal justifications advanced by prisons and state officials. Canadian courts have largely adopted the same deferential approach to prison officials as have American courts. But one recent Canadian case—Inglis v. British Columbia—sharply diverged from this tradition. Not only did the judge in Inglis rule on the side of the prisoners, but her reasoning departed significantly, even radically, from what one typically sees in judicial rulings on prisoners’ constitutional claims, even while resting on wholly recognizable and noncontroversial legal principles. In this way, Kerr argues, Inglis potentially offers a new model for judicial review of prisoners’ constitutional claims.