Vol. 6, No. 20 As Published in the Advance Sheets on May 17, 1999
Highlights of this Issue:
Leading Cases:
Miscellaneous Issues:
Ruiz v. Johnson, 37 F.Supp.2d 855 (S.D.Tex. 1999) (Judge Justice)
One day we may look back at this 228 page masterpiece by Judge William Justice and say that it served as the catalyst in focusing the attention of a blind American public on the embarrassing but real plight of the millions of prisoners in America, and in starting a retreat from the prevailing political position that Congress has the right - even the duty - to restrain "liberal judges who see violations of constitutional rights in every prisoner complaint." (Quoted from the statement of Senator Robert Dole in support of the Prison Litigation Reform Act (PLRA), 141 Cong. Rec. S14,414, Sept. 27, 1995). This decision certainly deserves such encomiums.
Supported by vividly detailed facts and impeccable logic, Judge Justice has taken issue with a number of politically popular positions. But the principle messages from this case are that (a) "Texas prison inmates continue to live in fear - a fear that is incomprehensible to most of the state's free world citizens" (id., at 940); and (b) "Such practices and conditions cannot stand in our society, under our Constitution." (Id.) Along the way, Judge Justice gave the most compelling analysis we have seen of why the "immediate termination provisions" of the PLRA are unconstitutional as a violation of the separation of powers doctrine.
The background for this extraordinary decision is noted in the Quote of the Week below, but suffice it to say that in 1980 Judge Justice approved a broad consent decree that permitted court supervision of the living conditions in the more than 100 penal institutions in Texas that today house more than 140,000 inmates. Chaffing under his continued supervision, Texas officials sought to end all judicial oversight of their activities by utilizing both the "immediate termination" clause of the PLRA (18 U.S.C. § 3626(b)(2)) and the "two-year termination" clause contained in 18 U.S.C. § 3626(b)(1). Those provisions authorize prison officials to terminate "final judgments" of a court that were entered prior to the passage of the PLRA, unless the relief contained in such final judgments remains necessary to correct "a current and ongoing violation of a Federal right, extends no further than necessary to correct the violation of the Federal right, and . . . is narrowly drawn and the least intrusive means to correct the violation." (18 U.S.C. § 3626(b)(3)).
Judge Justice openly acknowledged that much has changed in the Texas prison system since he made his initial findings and rulings. But he also ruefully noted that "The evidence before this court revealed a prison underworld in which rapes, beatings, and servitude are the currency of power" (id., at 915) and painted a picture of "a frenzied and frantic state of human despair and desperation." (Id., at 913). He particularly noted that "the extreme deprivations and repressive conditions of confinement of Texas' administrative segregation units . . . violate the Constitution of the United States' prohibition against cruel and unusual punishment . . . [and] members of the plaintiff class still live under conditions allowing a substantial risk of physical and sexual abuse from other inmates, as well as malicious and sadistic use of force by correctional officers." (Id., at 861).
It is impossible to capture in this brief summary the full scope of Judge Justice's horror; but many of his specific findings are so shockingly barbarous that they chill to the bone. Judge Justice stated that he was "deeply disconcerted by the inadequate and negligence [sic] medical and psychiatric treatment exposed by the plaintiffs and their experts." (Id., at 907). One court-appointed doctor, who was asked to evaluate the quality of medical care in the Texas prison system, found that 16 of the 59 reported deaths of prisoners in 1998 were "preventable." (Id., at 895). Staff indifference to medical problems was startling. "Inmate Ophelia Rangel spent five days not eating and suffering from psychotic episodes and severe diarrhea, but she was not treated. She died. . . . Another female inmate, Layovonda Alexander, was sent back to her cell after reporting significant weight loss and coughing up blood symptoms of her HIV infection. . . Rather than immediately treat her, a nurse [concluded] that she was refusing to work' and was made to return to work. Layovonda Alexander died within five months." (Id., at 899).
The Court described many "shattering" episodes dealing with every-day life in administrative-segregation. One expert testified that "Inmates in ad-seg are suffering such psychological deprivation . . . that their behavior becomes worse and they become less able to conform to prison rules. . . . Other experts agreed, explaining that being treated like animals in a zoo' is damaging to any person'." (Id., at 910). "Even more disturbing to the court are plaintiffs' allegations that administrative segregation is used to warehouse mentally ill patients who need medical and psychiatric attention." (Id., at 911). As an example, Judge Justice quoted another expert who testified:
"There were many people who were incoherent when I attempted to talk to them, babbling, sometimes shrieking, other people who appeared to be full of fury and anger and rage and were, in some instances, banging their hands on the side of the wall and yelling and screaming, other people who appeared to be simply disheveled, withdrawn and out of contact with the circumstances or surroundings. Some of them would be huddled in the back corner of the cell and appeared incommunicative when I attempted to speak with them. Again, these were not subtle diagnostic issues. These were people who appeared to be in profound states of distress and pain." (Id., at 909-10).
Ultimately, Judge Justice concluded: "It goes without question that an incarceration that inflicts daily, permanently damaging, physical injury and pain is unconstitutional. . . . It is deplorable and outrageous that this state's prisons appear to have become a repository for a great number of its mentally ill citizens. Persons who, with psychiatric care, could fit well into society, are instead locked away, to become wards of the state's penal system. Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their pyschoses. The United States Constitution cannot abide such a perverse and unconstitutional system of punishment." (Id., at 915).
Against that background, Texas prison officials argued that there was simply no need for further judicial oversight of its prisons - an argument that caused plaintiff's counsel to comment caustically that "it is as if we didn't sit through the same trial and hear the same evidence." (Id., at 916). Judge Justice denied the defendants' motions - both because he found that many of the living conditions in the Texas prison system constituted per se violations of the Eighth Amendment's prohibitions against cruel and unusual punishment, and because he concluded that the termination provisions of the PLRA were unconstitutional because they violate the separation of powers doctrine of the Constitution.
Judge Justice's decision stands out for its exhaustive analysis of the separation of powers argument. He started by noting that, under the separation of powers principle, "final judgments of the judicial branch are protected from legislative interference." (Id., at 873). He continued: "The separation of powers doctrine is a fundamental tenet of our democratic government. The doctrine is basic and vital, namely to preclude a commingling of the . . . essentially different powers of government in the same hands.' . . . Although it is never explicitly referenced in the Constitution, the axiom that judicial, legislative, and executive branches must not usurp each other's powers finds a reverential home in the decisions of the Supreme Court." (Id., at 874).
He then noted that "At least six times, federal district courts have determined that the immediate termination' provision of the PLRA is unconstitutional as a violation of the separation of powers doctrine" [while] [o]n somewhat varying theories, the First, Second, Sixth, Eighth and Eleventh Circuits have upheld the constitutionality of the PLRA termination provisions." (Id., at 873). [In addition, since this case was decided, both the Third and Seventh Circuits have come to similar conclusions in Imprisoned Citizens Union v. Ridge, 169 F.3d 168 (3d Cir. 1999) and Berwanger v. Cottey, Docket No. 98-3107 (7th Cir. 5/6/99), respectively].
Judge Justice strongly implied that those courts had resolved the issue by bowing to Congressional pressure (and the politically popular slogan) that the courts should stay out of prison affairs. For example, he pointedly quoted from Senator Hutchison of Texas who made the astonishing statement that "Interference by the federal courts has put the interests of criminals ahead of the interests of victims and law-abiding citizens." (Id., at 881). But he also quoted a revealing and powerful statement by the former Chief of Staff to the Executive Director of the Texas Department of Corrections who "implored" Congress not to pass the PLRA, stating: "I can say strongly and unequivocally that but for the sustained intervention of the federal court in the unconstitutional operation of the Texas prisons, the system would have continued to operate in the disturbing manner that I described previously." (Id., at 881, n. 40).
With polite reserve, Judge Justice stated: "The several circuits that have declined to find the PLRA termination provisions unconstitutional have done so not by disputing the separation of powers doctrine, but instead by questioning whether a consent decree entered in prison litigation qualifies as a final judgment' for the purposes of that doctrine. . . . This court respectfully disagrees with these determinations." (Id., at 875). "A court must either utilize tortured statutory interpretation to reach a far-fetched legal fiction, or strike down the provisions as violations of the United States Constitution." (Id., at 879-80).
Essentially, Judge Justice disagreed with those courts that have so willingly adopted the Congressional mandate that they stay out of prison lawsuits because a "consent decree has all the finality of a final judgment, and it is therefore immune to legislative tampering." To prove his point, Judge Justice first quoted from Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992), where the Supreme Court firmly stated "A consent decree no doubt embodies an agreement of the parties and thus in some respect is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." Thus he concluded: "Simply stated, in the Supreme Court's words, a consent decree is a final judgment that may be reopened only to the extent that equity requires' . . . Hence, in accordance with the separation of powers doctrine, such a reopening' may be effected only by a court, not by Congress." (Id., at 875-76).
Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999) (En Banc) (Judge Cox)
This case marks formal judicial approval of The Return of the Leper Colonies to America. In Alabama, any inmate who tests positive for HIV is automatically placed in segregation, where they are unable to participate in the many educational, vocational, rehabilitative, religious and recreational programs and activities that are available to the general population. In 1997, a panel of the Eleventh Circuit held that Alabama prison officials had violated the rights of such inmates under the Rehabilitation Act of 1973 (29 U.S.C. § 794) by denying them access to such programs. (Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997) (Onishea I) (See P&J, 11/24/97). That decision was quickly vacated when the Eleventh Circuit agreed to rehear the case en banc.
The prison officials appealed, arguing that there was "significant risk" that HIV could be spread, since it can be spread through anal sex and through needle sharing. The plaintiffs produced an expert who concluded, after combing though prison incident reports, that there were no incidents involving such activities. Nevertheless, the district court (Judge Varner) agreed with prison officials that sex and intravenous drug use "are a perpetual possibility in prison whenever a security guard trained to stop it is not watching." (Id., at 1295). Prison officials further argued that to hire and train a staff to watch out for such activities would require the hiring of 70 additional guards - a 23% increase in its staffing requirements. Once again, the district court agreed with prison officials that such an increase in staffing "would place an undue financial and administrative burden on the already-strapped prison system" (id., at 1303) - a conclusion that led the panel to comment that the district court "gave unbridled deference to the decisions of prison officials." (Onishea I, id., at 1342).
Citing School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987), the plaintiffs argued that an individualized inquiry into risk was "essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks." In Arline, the Court also stated: "The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases." (Arline, id., at 284-85).
Despite plaintiffs' arguments, a divided en banc court reversed the decision in Onishea I, and held that, for a number of reasons, Alabama had the right to segregate its HIV+ prisoners. Judge Barkett wrote an eloquent dissent, in which she stated: "The majority upholds the blanket exclusion on the grounds that any cognizable risk of HIV transmission, no matter how infinitesimal and even if based on a wholly unlikely and speculative chain of events, suffices to disqualify HIV+ inmates from participating in all general population prison programs and that no reasonable accommodation could eliminate this risk. The majority's holding is in direct conflict with governing Supreme Court precedent and eviscerates § 504's protections." (Id., at 1305).
QUOTE OF THE WEEK - Following an epic trial that lasted 159 days and included the testimony of 349 witnesses, Judge William Wayne Justice concluded in 1980 that the prisoners housed in the Texas Department of Corrections (TDC) prison system had provided "a rare glimpse behind the walls that so conveniently shielded free world society from the barbarous living conditions" they endured. Faced with the "staggering magnitude" of the constitutional violations that he found to be present, Judge Justice "regretfully" reported that:
"[I]it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls-the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices." Ruiz v. Estelle, 503 F.Supp. 1265, 1390 (S.D.Tex.1980).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter: This week: 28 Year to date: 778
Cases in the Federal Supplement: This week: 21 Year to date: 440
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