January 19, 2006

posted by Dan Filler

"Justice Posner" ... hmm, I like that!

"Justice Posner" ... hmm, I like that!

I have to admit that the only aspect of the decribed solitary confinement which I have a serious problem with is the failure to adequately manage the environment of the cell. That, I think, is unacceptable, although probably not unconstitutional. Given access to the prison library, a pen and some paper, in fact, it might sound a positively balmy form of detention.

Indeed, it seems to me that, when in prison, hell is most definitely other people.

It's important to look at the uses of Supermaxes in context, and Dan, you left out a couple of important factors here. First, Posner defines a Supermax as a facility "designated for inmates who have been disruptive or violent while incarcerated and whose behavior can be controlled only by separation, restricted movement, and limited direct access to staff and other inmates, thereby excluding routine disciplinary segregation, protective custody, or other routine purposes." In other words, this is not a place you put just any inmate -- only the most violent and disruptive prisoners. In fact, both state and federal prison systems have strong incentives against putting prisoners in Supermaxes because they're so much more expensive than other levels of incarceration.

Second, Scarver's own situation is instructive. He was/is placed in a Supermax because he has murdered three people -- two of them in prison.

The real question then -- and the one that the Seventh Circuit was examining -- should be more along the lines of "when the prison system is dealing with an inmate whose conduct demonstrates that there is no way to safeguard the safety of the corrections officers and the other inmates other than to put that prisoner in a Supermax, is that type of incarceration cruel and unusual?" (That formulation of the question is my own -- I'm sure others can improve on it.)

Although Posner recognizes that the conditions in Supermaxes are severe, and rightly expresses some concerns about them and their possible effects on prisoners, he also rightly concludes that this is not cruel and unusual in the constitutional sense: "The murderous ingenuity of murderous inmates, especially in states such as Wisconsin that do not have capital punishment, so that inmates who like Scarver are already serving life terms are undeterrable, cannot be overestimated. Prison authorities must be given considerable latitude in the design of measures for controlling homicidal maniacs without exacerbating their manias beyond what is necessary for security." (citations omitted)

Posner then addresses the management issue that Dan raises -- if prison officials are imposing harsh conditions that are unrelated to managing an inmate's dangerousness, then there would be a possible issue about whether the punishment is cruel and unusual.

But where those conditions are there in order to manage the dangerousness that put the inmate in the Supermax to begin with, the prison system's course of action seems not only permissible but nearly required: imagine the response of Scarver's next victim's family were he permitted to re-mingle with the prison population.

As for whether the legislature needs to vote specifically to authorize Supermaxes, this seems like a red herring. It's true that the legislators may not have envisioned Supermax confinement for shoplifters; that's because someone whose only crime was shoplifting wouldn't get put in a Supermax. That level of confinement is by definition reserved for violent offenders who have been unable to comply with the terms of their imprisonment -- thankfully, these inmates are very few in number (or so says Posner). A shoplifter who killed two other prisoners during his year in prison would be a perfectly appropriate candidate for a Supermax, and, following his conviction for the murder of his fellow inmates, that result would likely be exactly what the legislature imagined when passing both the criminal sentencing code and the corrections' budget (which presumably includes funding for the more expensive Supermaxes).

The question about whether legislatures should be required to authorize "supermax" for particular crimes raises an interesting point. Historically, certain crimes were punished by different levels of severity of incarceration, either in the statute defining the punishment, or by direction of the judge at the time of sentencing (e.g., whether or not to order confinement "at hard labor" in the US, or the distinction between the first, second, and third divisions in the UK). Although this allowed for tailoring of a sentence to the individual offender, it also may have constrained the prison authorities from making needed adjustments while the sentence was being served.

Today, the nature of confinement in the federal and most state systems in the US is dictated largely by the length of sentence and the prisoner's behavior while in prison -- but, with limited exceptions (e.g., home confinement), determinations as to the nature or place of confinement are, at least in the federal system and New York, totally outside the sentencing judge's hands. As I understand it, a federal judge has no authority to direct (as opposed to recommend) that defendants be sent to a facility where they can receive medical or drug treatment, or be confined close to their families, or in a minimum- or maximum-security facility. All such determinations are committed to the Attorney General/Bureau of Prisons. On the other hand, at least in some circuits it has been held to be reversible error for a District Judge to delegate to a Probation Officer discretion regarding, e.g., how many drug tests a probationer should undergo -- a much less critical matter. I am not sure that the law in this area has evolved in a totally sensible way.

The Supreme Court has held that as long as the conditions of confinement do not otherwise violate the constitution, the executive branch may confine the prisoner in the facility of its choice and under whatever rules and privileges it decides to establish. The obvious areas of constitutional litigation into which supermax prisons may be swept are the Eighth Amendment and the Due Process Clause (procedural, not substantive).

As such, I would not think it constitutionally impermissible to place someone like Jeffrey Dahmer in a supermax in order to protect him, assuming he was given process prior to placement or no process was due. I doubt the claim that supermax prisons only house violent and dangerous offenders; although, that may be prevailing correctional practice.

I do not think the courts have the experience or the time and resources to superintend the thousands of prisoner classification actions that happen daily in our country. Also understand that while a retributive motive may form the basis of a classification decision, classification is a tool to manage and control disruptive behavior or the risk of it in prison. By tying classification to the crime of conviction, you would strip prisons of their ability to manage, respond to and control disruptive behavior.

Judge Posner’s decision raises interesting Eighth Amendment issues. “They” (no differentiation of the defendants) believed Scarver was so dangerous that they could only control him at level 1. Level 1 is the most secure level of confinement. And yet Scarver obtained a razor and slashed himself not once, but on two separate occasions. And further, Scarver obtained enough medication to attempt suicide not once, but on two separate occasions. The psychologist testified that Scarver told him he wanted to cut open his head. A classification official noted Scarver’s bizarre behavior on an official form.

Notwithstanding these facts, the panel concludes there is insufficient evidence as a matter of law to establish deliberate indifference. I am not sure what the factual record actually says. I wonder whether the panel’s decision may be setting too high of a bar for establishing deliberate indifference in conditions of confinement cases that involve multiple defendants in a correctional setting. Of course, Scarver may have sought only damages, and the panel may be wary about imposing individual liability without a clear showing of indifference to conditions over which the defendants had actual control. Perhaps the panel also was holding that a purely psychological injury is not cognizable under the Eighth Amendment.