Tuesday, February 23, 2010

Not So Fainthearted After All

Yesterday's SCOTUS per curiam opinion in Wilkins v. Gaddy, would not be noteworthy were it not for the remarkable separate opinion by Justice Thomas, joined by Justice Scalia. In 1992, in Hudson v. McMillian, SCOTUS held that abuse of a prisoner can constitute cruel and unusual punishment even if no serious physical injury results. In Wilkins, the Court reversed a 4th Circuit decision that essentially ignored Hudson. The 4th Circuit affirmed a district court decision dismissing a prison abuse lawsuit because, in the judge's view, the injuries suffered by the plaintiff were "de minimis."

In a moment, I'll quote the abuse allegation, but first let's focus on the Thomas/Scalia opinion. They agree with the rest of the Court that the 4th Circuit approach in Wilkins is inconsistent with Hudson, and thus should be reversed under existing precedent. However, Justice Thomas says (as he did in 1992) that Hudson itself was wrongly decided. According to Justice Thomas's reading of the historical record, the original understanding of the 8th Amendment applied only to "punishments" that were carried out as part of a prisoner's sentence. A guard inflicting unauthorized cruelty on a prisoner is not, in this view, "punishing" the prisoner, even if he is harming the prisoner.

Justice Thomas did not say in Hudson that the original understanding should prevail. Rather, he said then, and he reiterated yesterday, that in order to prevent the 8th Amendment from becoming "a National Code of Prison Regulation," 8th Amendment claims for abuse that is not part of the sentence should be limited to those that result in "serious injury." It's not entirely clear why even those claims should be allowed under the Thomas approach. Purporting to root the serious-injury requirement in an earlier ruling, Justice Thomas could be said to have relied on stare decisis--although if that's the reason, one wonders why Hudson itself is not now entitled to respect under stare decisis, and in any event, Justice Thomas frequently advocates abandoning precedent in the name of original understanding.

Perhaps the best explanation why Justice Thomas is willing to allow 8th Amendment claims for even the narrow category of unauthorized abuse that results in serious injury is that he is, at the end of the day, a "faint-hearted originalist." That's Justice Scalia's term. He says in a 1989 essay titled "Originalism: The Lesser Evil," that most originalists (presumably including himself) are "faint-hearted," i.e., they would, in extremis, discard the original understanding to avoid truly dreadful results. Interestingly, he gives "public flogging" as an example: Practiced in the 18th century, he says that even most originalists would likely find it violates the 8th Amendment today.

Accordingly, we might view the willingness of Justices Thomas and Scalia to go along with precedents establishing that the 8th Amendment bars unauthorized prisoner abuse by guards where serious injury results as a sign of their faint-heartedness, i.e., as a sign that each has some compassion for prisoners after all. But before you conclude that this makes Justices Thomas and Scalia all warm and fuzzy, take note of how UN-fainthearted they are. If they had their druthers, they would do away with Hudson and would thus deny that an 8th Amendment violation has occurred when "serious injury" has not occurred.

What, in particular, would they say does NOT violate the 8th Amendment? Here is the allegation of abuse from the plaintiff's complaint in yesterday's case, quoted by the majority: Gaddy, the defendant guard,

apparently angered by Wilkins’ request for a grievance form, “snatched [Wilkins] off the ground and slammed him onto the concrete floor.” Gaddy “then proceeded to punch, kick, knee and choke [Wilkins] until another officer had to physically remove him from [Wilkins].” Wilkins further alleged that, “[a]s a result of the excessive force used by [Gaddy], [he] sustained multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.”

Because the district judge characterized all of this as "de minimis," it did not satisfy the "serious injury" requirement that Justices Thomas and Scalia would impose on 8th Amendment claims that do not challenge the formal sentence. I guess they're not so faint-hearted after all.

11 comments:

Charles said...

Based on my (lay) reading of these cases, I see two problems with this analysis.

First, the suggested inconsistency wrt "serious injury" doesn't seem to follow from Hudson. There, Thomas objected to Estelle's expansion of 8A protection beyond the court-mandated "punishment" (ie, sentencing) to punitive actions only attendant to incarceration. Estelle (apparently) established the standard of "significant injury", and Hudson revised the standard to "excessive force". J Thomas rejects both Estelle and Hudson, but must follow them and, therefore, apply Hudson's revised standard. Ie, if it were up to him, even significant/serious injury due to abuse by guards wouldn't be an 8A violation because it wouldn't constitute "punishment" for 8A purposes.

Second, the severity of the beating in Wilkins therefore seems irrelevant to the question of whether J Thomas is "faint-hearted". In Hudson, J Thomas explicitly suggests that there might well be other remedies for abused prisoners. He only questions whether a "deprivation" (ie, beating) by guards constitutes an 8A violation based on his view of its limited scope. I think in context, his assertion "it is not 'cruel and unusual punishment'" should not be interpreted as emphasizing "cruel and unusual", which - had he intended to emphasize it - presumably would have been the phrase in quotes), but as challenging whether the activity constitutes "punishment" under the narrow interpretation pre-Estelle. Ie, he may or may not be "faint-hearted", but I don't see this opinion as contributing to that determination.

To be clear, I'm arguing this from my (to repeat, lay) technical reading of the opinions. I am not a fan of the "conservative" wing of the court, original meaning originalism, retributive justice (which I consider philosophically/biologically naive), or mistreatment of anyone, prisoners or otherwise (even so-called "terrorists"). But I nonetheless find these opinions by J Thomas internally consistent given the premises on which they're based.

Sam Rickless said...

Charles,

I'm not sure why you don't see any inconsistency here. You say that Justice Thomas "must follow" Hudson and, applying the Hudson standard, concur with the majority in Wilkins. But Thomas does not think that Hudson is good law, and has in many previous cases dissented on the grounds that past precedents were bad law. So why did he write a concurrence and not a dissent? In his concurrence, he writes that "no party to this case asks us to overrule Hudson". But did any party to the case in Citizens United ask that Austin be overruled? No. Did that stop Thomas from voting that Austin should be overruled? No. So the question remains. Why did Thomas not dissent in Wilkins, on the grounds that Hudson was wrongly decided?

Mike's hypothesis, which seems totally reasonable to me, is that Thomas, whose principles strictly require that Hudson be overturned, is unwilling to live with the results of overturning Hudson. Sure, there may be some non-8A remedies for prisoners who are subjected to mistreatment while in custody, but these remedies won't be constitutional. Thomas may well be like Scalia in being faint-hearted. This would be a good thing from the point of view of policy, but, if true, would also make a complete mockery of originalism as a theory of constitutional interpretation.

Charles said...

Rethinking my first comment, I see that I should have been explicit as to what assertions in the post I dispute. Hence ...

"[J Thomas] said [in Hudson] ... that ... 8th Amendment claims for abuse that is not part of the sentence should be limited to those that result in 'serious injury.'"

Not my reading. He noted that the District Court "magistrate who found the facts in this case emphasized that petitioner's injuries were 'minor'", the appellate court judges "did not disturb that assessment, and it has not been challenged here", and therefore "[t]he sole issue in this case, as it comes to us, is a legal one: must a prisoner who claims to have been subjected to 'cruel and unusual punishment' establish at a minimum that he has suffered a significant injury?" Ie, does an injury that is less than "significant/serious" (AKA "minor") qualify as "cruel and unusual punishment"?

"It's not entirely clear why even those claims should be allowed under the Thomas approach."

As noted in my first comment, they wouldn't be since he considers Estelle wrongly decided.

"Purporting to root the serious-injury requirement in an earlier ruling, Justice Thomas could be said to have relied on stare decisis"

He had no need to "root the serious-injury requirement" anywhere. As noted above, it was off the table due to the unchallenged ruling by the District Court magistrate.

"one wonders why Hudson itself is not now entitled to respect under stare decisis"

I don't understand this statement. As you note, that's J Thomas's basis for concurrence in Wilkins.

As an aside, I would argue that no one should let an original meaning originalist get away with claiming "faint-heartedness". In objecting to flogging on 8A grounds, one is unequivocally admitting that strict adherence to original meaning doesn't always work (assuming - as I do not, since I have no idea - that flogging wasn't originally considered cruel and unusual). To be consistent, one would have to demand an amendment. You either accept "evolving standards" or you don't.

Charles said...

Sam -

I was only addressing the narrow issue of consistency between J Thomas's positions on injury that is "significant/serious" and injury that isn't. I wouldn't think of arguing for his consistency across the board - primarily because I am not competent to do so, but also because contrary to their self-assessments, I am confident that even committed originalists (of whatever stripe) are not in fact dispassionate logic machines but fallible human beings who hold many inconsistent positions.

I see that we are in essential agreement on "faintheartedness".

Despite having trouble getting to it, Hylas and Philonous is high on my to-read list, so be prepared for my bugging you on that topic one day.

Michael C. Dorf said...

I'll leave the details of exactly what parts of what opinions Justice Thomas is prepared to overrule when for interested readers to parse for themselves, but the main point of the post is not implicated by the points Charles makes: Justice Scalia says that when push comes to shove, most originalist judges will follow their hearts rather than their originalist philosophies; these 8th Am cases show that maybe he needn't worry about that supposed betrayal of originalist principles because we see from them that he and Justice Thomas can be pretty cold-hearted--at least where prisoners are concerned.

Charles said...

"Why did Thomas not dissent in Wilkins, on the grounds that Hudson was wrongly decided?"

Sam -

On further reflection, I think the answer to this specific question is quite simple: it assumes a procedure that is not available.

In CU, the majority overturned Austin, which allowed J Thomas to concur. (I don't see the question of whether anyone asked for that result as relevant to this issue.)

In Wilkens, the majority didn't overturn Hudson, so J Thomas had to accept Hudson as "settled law", even though he thinks Hudson bad law. Therefore, he had to concur in the opinion. In fact, his separate concurring opinion presumably is precisely for the purpose of emphasizing that his unavoidable concurrence should not be interpreted as happiness with the result.

In short, you can dissent if you think an opinion gets "settled law" wrong (whether or not you agree with that law), you can concur or dissent if an opinion changes settled law (depending on whether or not you support the change), but you can't dissent from an opinion which you think gets settled law right just because you think a component of settled law should be changed. Wilkens is in the that last category.

Charles said...

"the main point of the post is not implicated by the points Charles makes: ... these 8th Am cases show that ... [J Scalia] and Justice Thomas can be pretty cold-hearted--at least where prisoners are concerned."

Just for the record, I of course disagree with this assertion since my point was precisely that I think we can conclude nothing of the sort - notwithstanding that I rather suspect that at least wrt to J Scalia, the criticism isn't terribly far off the mark. He has made statements that certainly suggest a contemptible disregard for the suffering of those of whom he disapproves.

Sam Rickless said...

Charles,

Maybe I don't get it because I'm not a lawyer, but your last comment makes little sense to me. You say:

"You can't dissent from an opinion which you think gets settled law right just because you think a component of settled law should be changed. Wilkens is in the that last category."

But in constitutional jurisprudence, nothing is ever "settled". My understanding is that a judge always has the option of dissenting from an opinion if she or he thinks that the opinion is based on wrongfully decided precedent. Indeed, isn't this, for example, why Scalia dissented in Casey (on the grounds that Roe had been wrongly decided)? The majority did not overturn Roe, but Scalia did not (and did not have to) accept Roe as "settled". So he dissented. The majority in Wilkins did not overturn Hudson, and Thomas did not (and did not have to) accept Hudson as "settled". So why didn't Thomas dissent?

The only explanation I can think of is a certain kind of faint-heartedness.

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