Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Constitution 2020: Prison Conditions and the Eighth Amendment
|
Wednesday, September 29, 2010
Constitution 2020: Prison Conditions and the Eighth Amendment
Guest Blogger
For the Constitution in 2020 conference on The Future of Criminal Justice. The question at issue in Farmer may seem extremely narrow and legalistic. Farmer, decided in 1994, followed the 1991 case of Wilson v. Seiter.[iii] Wilson had held that plaintiffs challenging the conditions of their confinement have to show that prison officials were “deliberately indifferent” to the risk of serious harm to prisoners. Farmer asked: is the state of mind of “deliberate indifference” subjective or objective? As it happens, much turns on the answer. If deliberate indifference were an objective standard, prison officials would be liable for any harmful conditions about which a reasonable correctional officer paying appropriate attention on the job would have known—and thus about which prison officials should have known. On an objective standard, if a correctional officer should have been paying attention but wasn’t—if, say, he was reading Popular Mechanics or Soap Opera Digest while someone in his housing unit was being attacked or attempting suicide or dying for lack of her heart meds—that officer could be found deliberately indifferent and liable under the Eighth Amendment. An objective standard, in other words, would acknowledge that prison officials have an affirmative obligation to protect the people the state incarcerates from gratuitous suffering. It would put the burden on officials in charge of the prisons to be on top of what is going on in their facilities: to monitor, investigate, discover and take reasonable steps to avert potential dangers before those dangers manifest themselves in grievous and unnecessary harm to those in custody. In Farmer, the Court held instead that deliberate indifference is a subjective standard, and thus that there is no Eighth Amendment liability for “denying an inmate humane conditions of confinement unless the official [actually] knows of and disregards an excessive risk to inmate health or safety.”[iv] This holding dramatically shrinks the state’s constitutional obligations to the people society incarcerates. It also creates a perverse incentive. After Farmer, prison officials can be held constitutionally liable only for those prison conditions that they happen to notice. In this way, Farmer’s holding encourages and even rewards a prison official’s utter failure to pay attention. This is Farmer’s legacy: a no-liability zone where inhumane and even brutal conditions create no constitutional liability. Yes, people are sent to prison as punishment. But the punishment prison represents is social exile, the loss of liberty to go where one chooses, associate with whomever one likes, and define the terms of one’s own existence. People are imprisoned to keep them away from society, as a way to enforce the loss of liberty the state has decreed. As soon as society opts to incarcerate, however, it faces a challenge: all these people are now locked away without the ability to fend for themselves. Unless the state meets the basic needs of its prisoners—food, shelter, clothing, medical care, etc.—those needs will not be met. And of course, once the state decides to crowd together in close quarters a bunch of people some of whom have shown themselves capable of terrible violence, there is a real risk that the strong will prey on the weak unless protective measures are taken. No doubt, there are plenty of people whose crimes are so awful that society would like nothing better than to send them into exile to suffer and die. Why can’t we do this? Because the Constitution prohibits “cruel and unusual” punishment. As even the Farmer Court acknowledged, “having incarcerated persons [with] demonstrated proclivit[ies] for antisocial criminal, and often violent conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”[v] In making this point, Farmer cited the earlier case of DeShaney v. Winnebago County of Social Services, in which Chief Justice Rehnquist famously announced that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to take some responsibility for his safety and well-being.”[vi] So the Farmer Court acknowledged the state’s constitutional obligation to take affirmative steps to protect and provide for the basic needs of prisoners. And yet it held that deliberate indifference is a subjective standard, thus precluding liability for state officials who cause harm because they weren’t paying attention. How can this be? Are prison conditions cruel when prisoners suffer grievous and gratuitous harm that could have been avoided had COs been proactive, or are they not? What at first appears a contradiction proves easily explained: Farmer reached its surprising and seemingly inconsistent result by sidestepping the question of cruelty altogether. Instead, it focused on the meaning of “punishment.” As the Farmer Court put it, “[t]he Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’”[vii] In Wilson, the Court found that unless the pain at issue is “formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify [as punishment].”[viii] Following this logic, Farmer concluded that unless some prison official actually knew of and disregarded the risk, any pain or suffering a prisoner might experience, however agonizing and predicable, could not ground an Eighth Amendment violation—not because the prisoner’s treatment was not cruel, but because it was not punishment. What does all this mean for Constitution 2020? Farmer suggests there is little available scope for more capacious constitutional protection for prisoners. The Eighth Amendment does apply only to punishment. And if Farmer is right that prison conditions are not punishment unless some official actually realized the risk of harm, then maybe the Eighth Amendment just turns out to have less to say about contemporary realities in America’s prisons and jails than might have been thought. But this cramped view of the constitutional prohibition on cruel and unusual punishment is ultimately unpersuasive, for one simple reason: Farmer’s reasoning does not stand up to scrutiny. On Farmer’s logic, if a correctional officer fails to notice a rape taking place in the corner of the prison’s day room, or refuses to call the medics for a person lying immobile in “a stupor [and] soaked in his own sweat and urine” because she thinks he’s faking,[ix] her failure to protect prisoners against sexual assault or to provide medical attention is not punishment and therefore not a constitutional problem. But this notion misperceives the nature of the “punishment” at issue. The Eighth Amendment is concerned not with the punishment of one individual by another but with that imposed by the state as penalty for crimes.[x] And state punishment cannot be inflicted by one person acting alone, even a person acting in an official capacity. It is instead, and can only be, the result of a collective process undertaken by a series of state officials acting on behalf of the state. An official’s treatment of a convicted offender constitutes punishment for Eighth Amendment purposes when—and because—it is inflicted in the course of administering a penalty pronounced by a duly authorized sentencing court. This means that the resulting conditions—including being left unprotected in the day room with violent predators, or left in the custody of someone unable to recognize or credit the signs of genuine medical distress—represent state punishment imposed on the target regardless of what responsible officials happened to know or believe or intend about the situation at hand. And because these conditions constitute punishment in this constitutional sense, they are appropriately open to Eighth Amendment scrutiny. Farmer’s specious focus on “punishment” allowed the Court to avoid the more pressing constitutional question of when prison conditions may be said to be cruel. Yet this is the precisely the inquiry that ought to motivate good-faith efforts to determine the scope of the Eighth Amendment protection for prisoners. What of Farmer itself? Above, I suggested that a future Court should no more hesitate to overrule Farmer than it would to overrule Plessy. This parallel between Plessy and Farmer is deliberately drawn.[xi] Prisoners in America today are overwhelmingly, disproportionately people of color, African American in particular. The racial make-up of our prisons and jails makes Farmer’s judicial legitimation of official neglect especially troubling. It also helps to explain why a renewed focus on the Eighth Amendment must be an urgent component of any meaningful project of progressive Constitutionalism. Sharon Dolovich is Professor of Law at UCLA School of Law. You can reach her by e-mail at Dolovich at law.ucla.edu. [i] 511 U.S. 825 (1994). [ii] 511 U.S. 825 (1994). [iii] 501 U.S. 294 (1991). [iv] Farmer v. Brennan, 511 U.S. at 837. [v] Farmer v. Brennan, 511 U.S. at 833. [vi] 489 U.S. 189, 199-200 (1989). As Chief Justice Rehnquist went on to explain: When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs--e.g., food, clothing, shelter, medical care, and reasonable safety--it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. Id. [vii] Farmer, 511 U.S. at 837. [viii] Wilson v. Seiter, 501 U.S. 294, 300 (1991). [ix] See Paul von Zielbauer, As Health Care in Jails Goes Private, 10 Days Can Be a Death Sentence, N.Y. Times, Feb 27, 2005 at A1 (describing the case of Brian Tetrault, who died in a jail cell in upstate New York after jail staff cut off his Parkinson’s meds and then, when he slid into a coma on the floor of his cell, “dismissed him as a faker”). [x] See Ingraham v. Wright, 430 U.S. 651 (1977). [xi] Austin Sarat once called Farmer v. Brennan the Plessy v. Ferguson of our time. Posted 6:24 AM by Guest Blogger [link]
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |