Supreme Court Blocks Federal Lawsuit against Private Prison Employees

Earlier this week the Supreme Court threw out a federal prisoner’s federal lawsuit against employees of the GEO Group, saying the inmate should have pursued his claims in state court. (Which he’s now missed the deadline to do.) As Jess Bravin explains:

Under high-court precedents, inmates in federal institutions can file federal lawsuits against prison employees for mistreatment that violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

By an 8-1 vote, however, the court refused to extend that right to inmates held in private prisons operated under contract to the U.S. government. In an opinion by Justice Stephen Breyer, the court observed that in contrast to federal employees, whom prisoners generally can’t sue in state court, employees of the private company enjoy no such immunity.

The AP has these details about the suit:

[Inmate Richard Lee] Pollard wanted to sue for his treatment after he fell and fractured both of his elbows at the privately run Taft Correctional Institution in Taft, Calif.

Pollard said GEO officials put him in a metal restraint that caused him pain, and refused to provide him with a splint, making his injuries worse and causing permanent impairment. He sued in federal court for money, claiming GEO officials had violated the Eighth Amendment prohibition on cruel and unusual punishment.

Justice Ruth Bader Ginsburg was the sole dissenter, writing, “Were Pollard incarcerated in a federal- or state-operated facility, she would have a federal remedy for the Eighth Amendment violation he alleges. I would not deny the same character of relief to Pollard, a prisoner placed by federal contact in a privately operated prison.”

The case is Minneci v. Pollard; you can read the full opinion as well as lots of commentary over at SCOTUSblog.

The Federal Judge’s Case for Criminal Justice Reform

Here’s Fourth Circuit judge Andre Davis, concurring reluctantly with a federal LWOP sentence for crack dealing (h/t Doug Berman):

The record shows that [defendant Tony] Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio. As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. …

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” …

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. …

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure. 

The opinion can be downloaded here (PDF) and is well worth reading in full.

Web (& Not-Just-Web!) Resources: ACLU Mass Incarceration Initiative

Readers of this blog are likely familiar with the ACLU’s National Prison Project, which works to protect the rights of prisoners as well as pretrial and immigration detainees nationwide. Now, the ACLU has embarked upon a related initiative, the Safe Communities, Fair Sentences project, which will advocate against mass incarceration. Bookmark this site for a weekly dose of “overincarceration” news.

At the ACSblog, ACLU attorney Inimai Chettler asks “Just What Is So Wrong with the War on Drugs?”:

So what’s the verdict 40 years later? Have we won the war on drugs? Quite simply, no. From a public safety perspective, the war has been completely ineffective at stemming the supply or use of drugs in this country. From a cost perspective, it’s been horrific – with a whopping $1 trillion price tag thus far and an unimaginably higher toll in lives and families lost to prison. In terms of fairness, it has been a total bust as well. The effect on communities of color has been astonishingly tragic: there are more African-Americans under the control of prison and corrections departments today than were ever enslaved by this country. Even the current head of the Office of National Drug Control Policy, Gil Kerlikowske, and more recently the Global Commission on Drug Policy, have announced that the drug war has been an abject disaster.

According to the federal government, drugs are increasingly widely available and the rates of drug use are actually up by 10 percent since the start of the war on drugs. Drug supply and use have increased despite the2.3 million people languishing in prisons – about 25 percent of whom are locked up for drug violations. If we look at just federal prisons, things are even worse, with nearly half of those in prison locked up for drug crimes.

When we incarcerate drug offenders, they stay locked up for insanely lengthy periods of time – and often forever. We increasingly sentence them to life in prison under three-strikes-and-you’re-outlaws for petty drug crimes. And disappointingly, our Supreme Court has upheld the constitutionality of laws imposing disproportionate mandatory sentences of life without parole for simple possession of drugs.

Web Resources: “Smart on Crime”

I don’t know if the current momentum for criminal justice reform will translate into legislative results, but hey, at least we’re getting some handy websites out of it. First there was Right on Crime, and now there’s Smart on Crime — a website compiling federal policy recommendations related to all facets of criminal justice reform, put together by a coalition of organizations ranging from the ACLU and NACDL to the Heritage Foundation and Cato Institute. The site is organized around issues, with each section including an overview of the problem, a list of reform recommendations, and contact info for leading experts on the subject, so it’s a handy resource even if you’re not the target audience of “the Administration and Congress.”

Anyway, the section on Prison Reform takes up some issues close to this blog’s heart — including the Prison Litigation Reform Act (which I’ve written about here). Here’s a summary of Smart on Crime’s recommendations on prison policy:

• Fully implement the Prison Rape Elimination Act
• Address the problems created by the Prison Litigation Reform Act
• Build transparency and accountability in corrections
• Reduce recidivism and increase effective rehabilitation
• Reduce the use of long-term isolation and design effective alternatives
• Design an evidence-based approach to criminal justice

Deaf Federal Inmate Files Suit against Bureau of Prisons

From the Washington Post:

David Bryant, who is serving a 99-year sentence for rape, says he was punished by staff for ignoring instructions that he couldn’t hear and that he was attacked by other inmates when he tried to activate the closed-captioning function on a communal television.

Bryant, 46, cannot understand spoken conversation and communicates through American Sign Language, according to his lawsuit, which was filed Friday.

But since he began serving his current prison term in 2005, he has not had regular access to an interpreter or other vital aids, he says in his suit. That has made it difficult for Bryant to provide accurate information during medical evaluations or to participate in education or treatment programs.

Bryant’s case is being handled by the D.C. Prisoners’ Project.

Ghailani May Spend Life in Florence Supermax

As I’ve noted before, the War on Crime and the War on Terror have a lot of overlap. So, for students of mass incarceration, I wanted to highlight some particularly relevant snippets from the past few days’ coverage of the Ghailani verdict.

(1) Supermax, solitary confinement, and the politics of terror trials. Guantanamo military prosecutor Morris Davis has published this op-ed defending the verdict as just. Although his argument focuses mainly on procedural issues having to do with the trial itself, he also addresses Ghailani’s likely punishment:

Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

Of course, this is the same supermax that proponents of keeping Guantanamo open (most of whom aren’t exactly prison experts) have claimed is incapable of holding terror detainees. At least one prisoner has been held there in solitary confinement for decades, conditions that many psychologists don’t hesitate to call torture.

(2) The devalued currency of the life sentence? Here’s Benjamin Wittes of the Brookings Institution:

Marion Jones’s Case for Criminal Justice Reform

I don’t watch fake news, so I missed this, but apparently Marion Jones talked prison reform in her recent interview with Jon Stewart:

It’s interesting, cause you never know where life is going to take you. Ten years ago, I would have never thought that I’d be an advocate for prison reform… If you don’t equip the people who are in prison with the resources to get an education, so that when they get out they can be successful–they’re gonna wind up right back in prison, or wind up being your neighbor. Or worse, maybe marrying your daughter or your son.

Are Federal Prisons Exposing Inmates and Employees to Hazardous Waste?

FairWarning has this report on an ongoing DOJ investigation:

A government-owned company that runs electronics recycling plants at federal prisons from New Jersey to California is coming under intensified scrutiny for repeatedly exposing prison employees and inmate laborers to excessive levels of lead and other toxic metals.

The Justice Department’s Office of Inspector General is expected within days to release its report on a years-long investigation of the recycling operations — including accusations that prison officials ignored basic workplace safety precautions.

Separately, the U.S. Bureau of Prisons has quietly paid about $1 million to settle a grievance over hazardous duty pay for employees of an Elkton, Ohio, prison with one of the recycling plants. On one occasion, an air test at the eastern Ohio institution found cadmium levels 450 times higher than federal safety limits.

And a union for employees at the federal lockup in the central California community of Atwater also is demanding retroactive hazardous duty pay. Barring a settlement, that case is scheduled for arbitration in December.

On another front, lawyers preparing health claims for employees of the prison at Marianna, Fla., last week sued the Bureau of Prisons, claiming it has illegally withheld records about the recycling operation there, including by blaming a loss of documents on Hurricane Ivan.

GAO to Study Price Gouging for Prison Phone Calls

The ACLU Blog of Rights notes a little-noticed feature of the recently-signed Prison Cell Phone Act:

The bill orders the Government Accountability Office (GAO) to study the rates that federal prisoners must pay to use ordinary prison phones — and to investigate less expensive alternatives.

The GAO should take a hard look at prison phone rates. The fact is that prisoners who want to stay in touch with their children, parents, and spouses are being gouged. With steep charges to initiate a call, and astronomical per-minute rates, it can cost a prisoner over $30 to make a half-hour call to a loved one. Those who qualify for a prison job often make less than 25 cents per hour — so paying for a brief call to a son or daughter may require more than 100 hours of labor.

The Former Federal Prosecutor’s Case for Criminal Justice Reform

The result of the new law was startling: Thousands of black men received extraordinarily long sentences, yet at the same time, crack prices fell, indicating that supply was growing. In other words, we achieved mass incarceration while failing to address the underlying problem. We were imprisoning the wrong people. Crack is made out of powder cocaine and usually not “rocked up” until the street dealer handles it. Thus, the least culpable and most easily replaceable parts of the supply chain were the ones locked up.

An equivalent plan would be to try to close down America’s Walmarts by arresting the greeters or stock boys.

— Mark Osler, former assistant U.S. attorney and professor at Baylor Law School, on the 100:1 crack-cocaine sentencing disparity. Last week, Congress voted to reduce the disparity to 18:1.