In the 1971 landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics the Supreme Court announced that citizens had the right to sue individual government agents in Federal Court for violations of their Fourth Amendment rights. In Carlson v. Green the Supreme Court extended the rights granted under Bivens to sue Federal custodial agents for violation of the Eighth Amendment right protecting inmates from deliberate indifference to their medical needs.

This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

The Supreme Court affirmed a decision of a special three judge district court finding that California State prisons are overcrowded to the point where they violate the Eighth amendment right against cruel and unusual punishment in that they are unable to provide decent medical and psychiatric care to inmates. Furthermore, the Court upheld the appellate decision requiring the state of California to release approximately 40,000 inmates in order to comply with the Eighth Amendment.

The Prison Litigation Reform Act of 1995 (PLRA) set the procedure for challenging prisons overcrowding on Eighth Amendment grounds. It required a special three judge panel be appointed prior to the release of any prisoners for an Eighth Amendment violation. It required that any order releasing inmates be narrowly tailored to release only those inmates necessary to comply with the Eighth Amendment. Furthermore, inmates can only be released after the District Court has issued a less intrusive order requiring the state to take steps to comply with the Eighth Amendment and the initial order failed to obtain compliance with the Eighth Amendment.

The Ninth Circuit Court of Appeals combined two district court cases challenging overcrowded state prisons. In Coleman v. Brown the District Court found that prisoners with serious mental health problems failed to receive treatment complying with the Eighth Amendment and California v. Plata involved the failure to provide timely and sufficient medical treatment in the prisons.

The three judge panel ruled that the prisons have two years to reduce inmate levels from twice the design capacity to 137 per cent of capacity. The prisons were designed to hold 80,000 inmates but at the time of the three judge panel decision were holdin 156,000 inmates.

As a result of overcrowding the suicide rate for California inmate is 80 percent about the national prison average. Psychiatric prisoners are often kept in a box, the size of a telephone booth, while awaiting treatment. Prisoners often go months and even years waiting to see a specialist. One patient died after seventeen months without treatment for testicular cancer. Insufficient space and the lack of cleanliness lead to the spread of contagious diseases in prison hospitals. The prisons have been unable to fill even the limited number of medical positions authorized by the legislatures. Doctors often resign after being unable to sufficiently treat inmates.

The PLRA requires that prior to an order releasing prisoners

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that —

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

The majority opinion by Justice Kennedy in a 5 to 4 decision agreed with the District Dourt panel that the lack of care violated the Eight Amendment. The District Court gave the state two years to reduce the number of inmates to 137 percent of design capacity. ¹ Part of the reduction can be accomplished by constructing new prisons or housing inmates out of the state but the court found that the state did not have the ability to sufficiently reduce the number of prisoners without releasing some of the prisoners prior to the completion of their term. Furthermore, the Supreme Court found that the trial court properly took into consideration, as required by the PLRA, the public safety needs of the state and that reducing the number of prisoners can be accomplished without unnecessarily affecting the public safety.

Dissents written by Justices Scalia and Alito which were joined by Justices Roberts and Thomas objected to the Federal Courts ordering the state to reduce its prison population. They felt that the problem was a state problem and that the state should handle it. They stated that less intrusive means were available to deal with the problem and they worried about the public safety problems that may be incurred.

A convicted sex offender in New Mexico has been arrested and is facing three years in prison for moving out of a dumpster and into an abandoned apartment. The law in New Mexico requires sex offenders to have a physical address and to notify the authorities within ten days of moving. That means it is illegal to be homeless and be a sex offender in New Mexico. ¹ In California where the laws forbid sex offenders from living within 2000 feet of any school or park it is very difficult to find any place that sex offenders can live, forcing them to be homeless. In San Francisco 80 per cent of sex offenders are homeless. Thus we force sex offenders to be homeless and then we punish them for being homeless. Great laws we have!

Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

Virgilio Maldonado was sentenced to death by a Texas Court for murder. His counsel filed a petition for habeas corpus in Federal Court, claiming that he was mentally retarded. The Supreme Court ruled in Atkins v. Virginia that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment to execute the mentally retarded.

But the Supreme Court did not set parameters to determine who is mentally retarded. It left this up to the states to decide. Presumably if the states develop different definitions the Supreme Court will settle issue at some time in the future.

In Maldonado, last week,the Fifth Circuit Court of Appeals accepted the Texas definition. It require three factors: 1) significantly subaverage general intellectual functioning, 2) deficits in adaptive behavior, and 3) that the problem developed during the defendants developmental period. Furthermore, the Texas courts put the burden on the defendant by a clear and convincing standard to prove the elements.

Maldonado attacked the psychologist, Dr. George Denkowski, appointed by the state to test him. The psychologist did two basic tests. He performed the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III) and the Adaptive Behavior Assessment Scale (ABAS) The WAIS-III measured intellectual ability. A score below 70 is considered proof of mental retardation and the ABAS measures adaptive ability. But Denkowski’s method of interpreting the tests have been questioned. In other cases his interpretation has been excluded and he currently charged before the State Board for his unscientific methods of interpretation. He raises scores on the tests without scientific support and without legitimate measurements based upon unfounded criteria.

But the Court ruled that even without Denkowski’s report Maldonado failed to prove that he was retarded. His own experts were unable to provide WAIS tests of below 70 and the testimony regarding his adaptive ability did not show that he was unable to cope. He was able to hold jobs, write letters, file reports, and raise a family. As a result the Fifth Circuit upheld the Texas decision denying Maldonado’s petition for habeas corpus.

Jeffrey Landrigan was executed Tuesday night after the Supreme Court lifted a stay issued by the District Court.

The State of Arizona along with other states uses a three-drug execution protocol. One of the drugs is the barbituate, sodium thiopental. Hospira Inc. is the only manufacturer licensed by the F. D. A. to produce sodium thiopental. Hospira Inc. is out of sodium thiopental and will not have more until the beginning of the year.

Jeffrey Landrigan’s lawyers requested a stay of the execution until legal sodium thiopental could be obtained. The District Court ordered the government to provide information regarding the source and production of the sodium thiopental to be used in the execution. Arizona refused to comply with the judge’s order. Therefore the District Court ordered a stay of the execution pending evidence that the three-drug execution protocol, without legal sodium thiopental, would not cause Landrigan pain and suffering. The Ninth Circuit upheld the stay and the state appealed to the Supreme Court. A five judge majority (Roberts, Alito, Scalia, Thomas, and Kennedy) reversed the stay saying that Landrigan had failed to provide sufficient evidence that the drug was not safe or could result in pain to Landrigan.

Of course, the sad irony to the reversal of the stay is that the District Court ordered the state to provide information from which the defense could determine whether or not using the substitute sodium thiopental was safe and the government refused. Now the Supreme Court reversed the stay on the basis that the defense did not have the information that the state refused to provide.

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

The Supreme Court, yesterday, banned the use of life without parole (LWOP) sentences for juveniles convicted of crimes other than homicide. In Graham v. Florida it reversed the life without parole sentence of a Florida teenager who violated his probation for a home invasion robbery by committing an armed robbery.

The Court found that sentencing a juvenile to life in prison without parole for a crime other than homicide violated the Eighth Amendment’s ban of cruel and unusual punishment.

The court found that juveniles are less culpable because they have not reached full maturity. Because juveniles continue to change it is difficult if not impossible to determine whether they will become good citizens as they grow older or whether they are evil people who need to be kept behind bars for their entire life to protect society.

Courts generally look at two factors in determining Eighth Amendment violations. First they look at whether the sentence is disproportionate to the crime. Second they consider whether the crime is part of a category of crimes that society recognizes as no deserving of the severe sentence. In this case the United States is the only nation that imposes life without parole sentences on juveniles. While 37 states, the District of Columbia, and the Federal government allow LWOP sentences for juveniles only eleven states and the Federal government have imposed such. There are currently 129 people in prisons sentenced to life without parole for juvenile crimes other than homicide. Seventy-seven of these have been sentenced in Florida. Considering the large number of juveniles convicted of serious felonies very few outside of Florida have been sentenced to life without parole. The Court considered this in determining society’s general opposition to such sentences.

Furthermore the Court found that LWOP sentences for juveniles charged with crimes other than homicide is not justified by any penological justification. The court found that while retribution is a genuine justification it is only valid if it is relative to the degree of culpability and since juveniles, due to a lack of maturity are less culpable than adults life without parole for crimes other than homicide do not fulfill a valid need for retribution. A second penological goal is deterrence but since the juvenile has not reached his/her full level of maturity it is impossible to say that LWOP acts as a deterrence. A third penolgical goal is incapacitation. But again it is not mandatory for a juvenile who may mature as time goes on. The fourth penological goal is rehabilitation but LWOP rules out any chance of rehabilitation.

The ban on LWOP sentences for juveniles convicted of crimes other than homicide does not guarantee that all juveniles will be released. All it does is guarantee that they will have a chance to prove their maturity and be released. They will still be sentenced to life in prison and it will be up to the state’s parole system to determine whether or not to release them.

Jerry Flanory was an involuntary resident at Michigan’s Newberry Correctional Facility. The Classification director told him that he had to take a GED class. He told the director that he already had a GED from Sarvis Educational Center and an AA degree from Montcalm Community College. The institution refused to confirm his information. When Flanory refused to go to GED classes he was placed on restriction. As part of his restriction he was not allowed to participate in the Indigent Program. Without participating in the Indigent Program he was unable to buy toothpaste for 337 days. After he was readmitted to the Indigent Program he was diagnosed with a periodontal gum disease and he had to have a tooth extracted.

He sued for a violation of his Eighth Amendment right against cruel and unusual punishment. The District Court threw out his case for failure to state a cause of action. The Sixth Circuit reversed the lower court decision finding that Flanory stated a cause of action under the Eighth Amendment.

The Eighth Amendment prohibit prison authorities from “unnecessarily and wantonly inflicting pain by acting with deliberate indifference to inmate’s serious medical needs.” the court had little problem finding that Flanory’s medical needs were serious. It points that he was in considerable pain and that he had to have a tooth extracted.

But Flanory also had to show that the authorities acted with deliberate indifference to his medical needs. It is insufficient to show negligence. But in this case the knowing refusal to provide toothpaste met the test and the District Court’s decision was reversed.