Crime & Federalism

Those with love ones imprisoned face many difficulties.  One of these include the price of merely talking to a loved one: a brief telephone call costs at least $20.00.  This might not seem like a lot of money to you, but when you consider that prisoners usually come from poor families, it's easy to see the financial toll the phone calls take on loved ones.

What worse is that the excessive fees bear no rational relation to the additional costs of monitoring prisoners' calls.  Rather, it's yet another revenue-generation scheme.  Some of you might argue that prisoners and their families deserve this treatment.  I'm finished arguing with your ilk, though I'll continue to hope that God (or man) "will take away the stony heart out of your flesh, and ... will give you an heart of flesh." Ezekiel 36:26-27.

Today a unanimous three-judge panel rejected an equal protection challenge to one such scheme.  Gilmore v. City of Douglas, No. 04-1325 (8th Cir. May 2, 2005).

In her complaint, Gilmore drew her equal protection analysis from a distinction between two classes of recipients of collect calls–those who receive telephone service in general including collect calls and those who receive collect calls from inmates at the DCCC. Gilmore's theory is that people who receive collect calls from inmates at the DCCC are treated differently from those general telephone service recipients who receive collect calls from callers not incarcerated at the DCCC. Accordingly, Gilmore asserted that the County was impermissibly levying a special tax exclusively on those persons who accepted collect calls from inmates at the DCCC in violation of their right to equal protection of the laws.

Slip op. at 4.  The panel rejected this claim, noting that "the classifications drawn by Gilmore in her complaint finding no similar situation extant between those who received calls from DCCC inmates and those who received collect calls from the general public."  Id. at 5.  Moreover,

even assuming the money received by Douglas County is a tax, the purpose of this tax, as reasoned by the district court, was to recoup costs associated with the space and maintenance of the telephones provided to inmates. Under rational basis review, a plaintiff must show more than that the government treated two classes differently for some irrational reason, a plaintiff must show that the government intended to discriminate against one class. Batra v. Bd. of Regents of Univ. of Nebraska, 79 F.3d 717, 721 (8th Cir. 1996). In this case, the alleged government action is aimed at generating revenue to defray the costs of providing inmates with a specific service, it is not aimed at treating persons who receive collect calls from the DCCC differently from those who generally receive collect calls.

Because the plaintiff could not establish purposeful discrimation, their claims were rejected.  The panel also rejected the plaintiff's claim that the fees were unrelated to the costs of providing a phone service.  Applying rational basis, the panel rejected this argument. 

We must recognize that "a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993). Thus, because "all that must be shown is 'any reasonably conceivable state of facts that could provide a rational basis for the classification,' it is not necessary to wait for further factual development."

Id. at 7.  In other words, even though there was no factual basis for the excessive phone fees, the panel upheld it.  Sadly, that's what an application of the rational basis test called for.  Which is something to consider the next time you refer to Lochner as a monster.

One argument not raised, but which I'd love to hear you thoughts on, is this: Do excessive phone fees violate First Amendment associational rights when poor families are unable to communicate with incarcerated relatives?

Don't expect much to change in the Second Circuit in light of the United States Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005).  Federal sentencing guidelines may no longer be mandatory, but they may as well be in Connecticut, Vermont and New York.

The Circuit first decided in United States v. Crosby, 397 F.3d 103 (2d.Cir.2005) to instruct the District Courts that although the guidelines are now merely advisory, the Courts ought to heed the advice.

In a case published earlier this week, the Circuit went out of its way to declare just how binding this advice can be.

United States District Court Judge Peter Dorsey of New Haven sentenced a woman to one day in jail after a guilty plea for embezzling about $366,000 from her bank employer. Her guidelines calculation called for incarceration for a period ranging from 24 to 30 months.

Judge Dorsey departed downward under the guidelines in May 2004. The Government took an appeal contending the record did not support the downward departure. The case was briefed before Booker, and argued after Crosby.

The Court directed that the case be remanded for new sentencing under Booker/Crosby and then signalled that insofar as it was concerned a sentence of one day was not "reasonable."

Great! Trial judges who actually lay eyes on a defendant and then impose sentence will now be second-guessed by the most amporhous of standards -- "reasonableness."  And this from an appellate court unbounded in its discretion to determine what reason requires.

Were we better off with the guidelines?

See, United States v. Godding, 2005 WL 894786 (2nd Cir., April 19, 2005).

Can a federal judge order that a convict's sentence run concurrently with a state prison sentence?  See this post for an explanation.

Will An Apology Save you From Jail?

A while ago I blogged about the Court's awful decision, Johnson v. California.  I thought  that it was more important to protect prisoners from rape and murder before concerning ourselves with a ideal - racial integration - even free men and women can't seem to achieve.  Prisons are brutal places, and courts should not tinker with them unless tinkering will reduce harm prisoners face from guards and other prisoners.  Let's stop prison rape before worrying about higher values.

A former prison inmate agrees:

California prisons separate blacks, whites, Latinos and "others" because the truth is that mixing races and ethnic groups in cells would be extremely dangerous for inmates.

I don't say this because I'm a racist; I honestly believe that I'm one of the least prejudiced people I know. But prison is an undeniably racist place, and court rulings aren't going to stop it. Inmates who value their own safety must quickly learn to put political correctness aside and to follow certain clearly defined, if unwritten, rules for survival.

Rule No. 1: The various races and ethnic groups stick together.

Inmates face a huge amount of racial tension every day in prison. Living in such close proximity to others of different backgrounds and cultures — and the fact that these people, whatever their race or ethnicity, are likely to be from the least educated and most violent segment of society — makes minor differences that might normally be overlooked larger and more significant.

If a black inmate attacks a white inmate in prison, it is considered the responsibility of other white inmates to respond. This provides some measure of protection for those inmates who are not members of any gang but who do not wish to become prey for those who are. You and I may not like it, but that's how it is.

You can read the full editorial here.

(Thanks to Three Generations for the link).

Someone once said that God is just, and that should scare us.  Here's how we treat our prisoners:

Ocasio--then an inmate at the Bayamón prison in Puerto Rico--was injured by a blow to the head in a prison riot. He received medical attention at a regional hospital but was left with head pain, convulsions, and one side of his body paralyzed. CT scans showed no brain damage and Ocasio was returned to his cell at Bayamón on November 15. It is his treatment, or the lack of it, during the next six weeks that is the present subject of this litigation.

Drawing permissible inferences in favor of Alsina, it appears likely that during this six-week period Ocasio was in considerable pain, was seriously disabled, cried and screamed in pain and, half paralyzed, could not get about. There is some evidence that Emilio Castillo, then a prison guard lieutenant in contact with Ocasio, was aware of his plight but did nothing to secure medical care for him.

Screw prisoners, right?  They're in prison, after all, and thus deserve whatever they get.  Well, if there is a God (and I believe there is), we'll also get what we deserve for our treatment of prisoners.

Will criminal defense and civil rights lawyers begin speaking of a post-Dotson world?

In Dotson, you'll remember, the Court held that a state prisoner may file a section 1983 action challenging parole procedures, so long as the prisoner is not suing for release from prison and is not suing for return of good time credits as such.  But the prisoner may file a 1983 suit challenging the procedures used to deprive him of his good-time credits or to deny him parole; and a trial court may properly demand that the prisoner receive fresh - and constitutionally sound - parole hearing.

One issue ripe for a Dotson challenge is the pernicous practice of holding a convict's assertion of innocence against him  -- Parole boards universally  punish convicts for proclaiming innocence.  Their reasoning is that a convict who proclaims his innocence has presumably not accepted responsibility for his conduct, and is therefore not rehabilited.  Only rehabilitated convicts are relased.

In light of the well-documented problem of wrongful convictions, this presumption is unsound.  There are, indeed, thousands of innocent people in prison.  Worst of all is that an innocent convict can not lie by admitting guilt before a parole board without killing his post-conviction remedies.  It's a true Hobson's choice.

In light of Dotson, using a defendant's proclamations of innonece against him may be unconstitutional.  At least prisoners may begin challenging this presumption against rehabilition.

I'm interested in hearing lawyers handling post-conviction matters -- Are you currently using section 1983 to challenge parole procedures?  Has Dotson changed your position, i.e., had you not thought of filing a 1983 action before Dotson, but now you are researching potential challenges?

What will Wilkinson mean?  Professor Berman wants to know: Will "Dotson ...  bring a new wave of § 1983 litigation."  I'd love to hear Norm's answer.  Here's mine -- In a word, yes.

Before Wilkinson v. Dotson, parole procedures were almost unreviewable.  The parole board usually stamped a big bold "DENIED" on the application.  There wasn't much resource for the prisoner, other than to wait patiently for another hearing.  Most people thought there was little to do.  Indeed, the ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson  is that the full panoply of constitutional challenges are available to the prisoner.  So long as the prisoner styles his action as one for limited declaratory and injunctive relief, the section 1983 action will lie.  What do I mean by limited?

The prisoner can not ask that the parole board's findings be overturned.  But he can now get a declaratory judgment from a judge stating that the parole procedures were invalid.  And thus, the prisoner would be entitled to a new hearing.  However, the judge can not rule: "Therefore, the prisoner should be granted parole [his sentence is reduced]."  The issue is one of procedure. 

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons (holding that 1983 plaintiff must face imminent injury from unconstitutional practice to meet Article III case or controversy requirement), the prisoner could invalidate a parole board's procedures before facing the parole board.

Of course, please don't forget about the PLRA!

Of course, we can not read Wilkinson  in a vacuum.  The contours of the constitutional rights, if any, available before the parole board are yet to be drawn.  But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer to help prisoner's file 1983 actions to ensure that parole procedures are constitutional.  It will be rewarding and educational.

Today the Supreme Court issued an 8-1 opinion in Wilkinson v. Dotson, No. 03-287 (U.S. Mar. 7, 2005).  Justice Breyer authored the opinion and set up the case:

Two state prisoners brought an action under 42 U. S. C. §1983 claiming that Ohio’s state parole procedures violate the Federal Constitution. The prisoners seek declaratory and injunctive relief. The question before us is whether they may bring such an action under Rev. Stat. §1979, 42 U. S. C. §1983, the Civil Rights Act of 1871, or whether they must instead seek relief exclusively under the federal habeas corpus statutes. We conclude that these actions may be brought under §1983.

Some background.
Under Heck v. Humphrey, a state prisoner may not bring a §1983 action challenging "the fact or duration" of his confinement.  A state prisoner can't sue the police for violating his Fourth Amendment rights, e.g., his right to be free from unreasonable searches, if that goes to the "fact" of his confinement.  It goes towards the fact of his confinement if the improperly seized evidence was used to convict him.  The Heck v. Humphrey  rule requires the prisoner to litigate his issue in a habeas proceeding.

The Heck v. Humphrey  bar is absolute.  As Justice Breyer notes in Wilkinson:

[A] state prisoner’s §1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

Slip op. at 7.  Although the "fact" aspect of Heck is easy to understand, the "duration" prong is somewhat difficult to wrap one's mind around.  For example, what if a prisoner sues prison administrators for depriving him, without due process, of the property interest in his good-time credits?

The lawsuit doesn't go to duration the way directly attacking the state sentencing court's judgment does.  Indeed, the prisoner would argue that he's suing to vindicate a property right.  Alas, his claim touches duration, since a court would, by restoring good time credits, be shortening the prisoner's sentence.  See Preiser v. Rodriguez.  Preiser gave a rule tough for some to accept, but it was easy enough to understand.

Then in Wolff v. McDonnell, the Court decided to confuse me.  Here is Justice Breyer, in Wilkinson, describing the holding of Wolff:

[In Wolff the Court held that] the inmates could use §1983 to obtain a declaration (as a predicate to their requested damages award) that the disciplinary procedures were invalid. They could also seek by way of ancillary relief, an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.  In neither case would victory for the prisoners necessarily have meant immediate release or a shorter period of incarceration; the prisoners attacked only the wrong procedures, not . . . the wrong result (i.e., the denial of good-time credits).

Slip op. at 5 (citations and quotation marks omitted).  Not content to merely confuse me, the Court in Edwards v. Balisok  later held, according to Justice Breyer:

[H]abeas was the sole vehicle for the inmate's constitutional challenge insofar as the prisoner sought declaratory relief and money damages, because the principal procedural defect complained of, namely deceit and bias on the part of the decisionmaker, would, if established, necessarily imply the invalidity of the deprivationof Balisok's good-time credits.  Hence, success on the prisoner’s claim for money damages (and the accompanying claim for declaratory relief) would necessarily imply the invalidity of the punishment imposed. Nonetheless, the prisoner’s claim for an injunction barring future unconstitutional procedures did not fall within habeas’ exclusive domain. That is because ordinarily, a prayer for such prospective relief will not necessarily imply the invalidity of a previous loss of good-time credits.

Id. at 5-6.  Now comes the facts of Wilkinson.

In Wilkinson two state prisoners are challenging parole procedures under the Due Process and Ex Post Facto clauses.  The parole procedures, if changed by the Court, would affect the time the prisoners would spend in prison.  Seems like it would fall under the "duration" element of Heck, no?

Well, no.  Justice Breyer wrote:

Applying [Heck, Wolff, Preiser, Balisok] to the present case, we conclude that respondents' claims are cognizable under §1983, i.e., they do not fall within the implicit habeas exception. Dotson and Johnson seek relief that will render invalid the state procedures used to deny parole eligibility (Dotson) and parole suitability (Johnson).  Neither respondent seeks an injunction ordering his immediate or speedier release into the community. And as in Wolff, a favorable judgment will not necessarily imply the invalidity of their convictions or sentence.  Success for Dotson does not mean immediate release from confinement or a shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application.  Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term.

Wilkinson at *7.  In other words, the remedial tail will wag the Heck dog.

UPDATE: What will Wilkinson mean?  Professor Berman wants to know: Will "Dotson ...  bring a new wave of §1983 litigation."  I'd love to hear Norm's answer.  Here's mine -- In a word, yes.

Before Wilkinson v. Dotson, parole procedures were almost unreviewable.  The parole board usually stamped a big bold "DENIED" on the application.  There wasn't much recourse for the prisoner, other than to wait patiently for another hearing.  Most people thought there was little to do.  Indeed, the ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson  is that the full panoply of constitutional challenges are available to the prisoner.  So long as the prisoner styles his action as one for limited declaratory and injunctive relief, the section 1983 action will lie.  What do I mean by limited?

The prisoner can not ask that the parole board's findings be overturned.  But he can now get a declaratory judgment from a judge stating that the parole procedures were invalid.  And thus, the prisoner would be entitled to a new hearing.  However, the judge can not rule: "Therefore, the prisoner should be granted parole [his sentence must be reduced]."  The issue is one of procedure. 

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons (holding that 1983 plaintiff must face imminent injury from unconstitutional practice to meet Article III case or controversy requirement), the prisoner could invalidate a parole board's procedures before facing the parole board. Of course, please don't forget about the PLRA!

And we can not read Wilkinson  in a vacuum.  The contours of the constitutional rights, if any, available before parole boards are yet to be drawn.  But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer to help prisoner's file 1983 actions to ensure that parole procedures are constitutional.  It will be rewarding and educational.

If you're a criminal defense lawyer, you must read this post (and its companions) at Sentening Law and Policy.