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Posted on November 25, 2019 at 3:30 AM

A group of inmates is suing Rhode Island, because they are considered “dead.” This status means that they have difficulty enforcing their rights, because dead men have no rights. For example, it is unclear whether or how they can bring claims under the Eighth Amendment.

Interestingly, this use of “civil death” in the penal context is analogous to how “brain death” is used in the medical context. Both legal categories simplify what might otherwise be messy and complicated. 

For example, what states of life with severe brain injury are worth sustaining? That is a value laden judgment about which reasonable people disagree. But we can avoid many of those normative debates. “Brain death” carves out a category of severe brain injury with a bright line, calls it “legal death,” thus concluding it is not worth sustaining.

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