by Michael C. Dorf
There is so much that is wrong with the Supreme Court's order last week in Barnes v. Ahlman that it is hard to know where to begin. A federal district judge ordered an Orange County, CA jail to implement various measures to reduce the risk of COVID-19 spread among the inmates and pre-trial detainees who are housed there. The Ninth Circuit declined to stay that order pending appeal, but the SCOTUS took what used to be the extraordinary step--but has become an increasingly common step--of intervening to stay the injunction without opinion. The vote was 5-4, with the Republican appointees in the majority. Justices Breyer and Kagan dissented but did not write. Justice Sotomayor, joined by Justice Ginsburg, did. I commend her dissent to readers. Here I'll note a few key points before turning to my own contributions.Justice Sotomayor notes, among other things, that: on its own account, the Jail cannot possibly have risked suffering irreparable harm from the district court's orders because it claimed to be already doing everything the court ordered; the public health consequences of the SCOTUS stay are dire, as "the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place);" the SCOTUS can only have thought the district court order mistaken (and even then that alone wouldn't justify SCOTUS intervention) by disregarding the district court's detailed factual findings of the public health risks the Jail was imposing on inmates and detainees.
There is more, but here I want to focus on a point about what it takes for a prisoner or pre-trial detainee to succeed in proving that prison or jail officials have acted unconstitutionally by failing to take some action for the prisoner's or detainee's benefit. As a technical matter, a prisoner serving a sentence has rights under the Eighth Amendment's prohibition on cruel and unusual punishments, whereas a pre-trial detainee has rights under the Due Process Clause (of the 14th Amendment as applied here), but the lower courts have applied the Eighth Amendment standard to both sets of detainees: Officials act unconstitutionally when they exhibit "deliberate indifference" to the health and safety of persons under their supervision. Did they act with deliberate indifference here?
Justice Sotomayor describes and rebuts the Jail's argument:
The Jail argues that, because it voluntarily released 53 percent of its population, it necessarily could not have been deliberately indifferent to the needs of its inmates. But the release of even a large number of inmates does not absolve the Jail of its responsibility for the health and safety of the roughly 3,000 individuals left behind.
That characterization is arguably a bit unfair. Releasing prisoners and pre-trial detainees shows regard for the health and safety of both the people released--provided they can find appropriate living space with family members or others--and the people who continue to be detained--because it is easier to achieve social distancing with a smaller Jail population. Nonetheless, Justice Sotomayor is clearly right that, as a matter of logic, it is possible to take measures that somewhat address prisoners' and detainees' interests in health and safety while still exhibiting deliberate indifference to other aspects of their health and safety.
Here's a not-too-hypothetical example: In response to substantial evidence of the very serious risks of traumatic brain injury (TBI), the NFL has adopted a concussion protocol that can limit a player's availability, taking key decisions away from players and coaches who might want to rush back too soon. The concussion protocol and relatively recent rules changes regarding tackling show that the NFL cares about preventing TBI, right? Well, sure, to some extent, but we might still think that the NFL is being deliberately indifferent to the welfare of players at risk of TBI. There is substantial evidence that football players can suffer such injuries from repetitive subconcussive impacts. That evidence is known to team owners and managers; yet, while taking measures to reduce risks from concussions, they continue to expose players to very substantial risks of TBI.
Defenders of the NFL might make two points in response to the argument of the foregoing paragraph. First, they might say that the players are also aware of the risk of TBI but take it anyway because of the expected rewards. Second, they might say that if the only way to reduce a risk of some activity to an acceptable level is to eliminate that activity entirely, then one cannot say that the continuation of the activity amounts to deliberate indifference to the people who bear the risk, so much as it is simply a tradeoff.
Because I'm not now interested in football except as an analogy, I'll leave readers to decide for themselves how persuasive these responses are. But turning to the actual case, the analogous arguments are not persuasive at all.
Begin with something like assumption of risk. Unlike NFL players who might be said to have assumed the risk of TBI, nobody volunteered to go to jail and risk coronavirus infection. I suppose someone might contend that by committing a crime, a prisoner assumed the risk of what would happen in prison, but such a contention would be wrong on two grounds. First, it has no bearing on pre-trial detainees, who are clothed in a presumption of innocence. Second, even as to convicted prisoners, the argument seriously overshoots its goal. If committing a crime is deemed assumption of the risk of whatever happens in prison, then there is no Eighth Amendment protection against cruel and unusual punishments.
So much for assumption of risk. What about an analogy to the other football-based argument, regarding elimination of the activity itself? Here the argument is superficially stronger. After all, we might think that the right response to the TBI problem is indeed the abolition of football. But despite the existence of a prison abolition movement, many people--including at least five SCOTUS justices--think that jails are essential to preserve social order, so that exposure of prisoners and pre-trial detainees to a level of COVID-19 risk that would be unacceptable for the general public is, in this view, a necessary tradeoff rather than deliberate indifference.
Is that a good argument? It might be if the district court had ordered the Jail to shut down completely or to run at five percent of its regular capacity, but of course, that's not what the district court did in Barnes. It did not order any reduction in the number of prisoners and detainees. It simply imposed conditions based on CDC guidelines and with which the Jail claimed to be complying already. So preserving jails and prisons cannot have been the majority's rationale.
In the end, we don't know why the SCOTUS majority ruled as it did. Before concluding I want to float two more possible rationales and explain why each one fails.
First, notwithstanding the logic of Justice Sotomayor's dissent, one could imagine a SCOTUS majority thinking that the Jail couldn't have been deliberately indifferent to the health and safety of the prisoners, given the release of over half the Jail population. The majority would think that the Jail officials were obviously concerned about the population's health and safety as a result. But that conclusion doesn't just fail to follow from the premise. We can imagine a way in which the premise leads to the opposite conclusion.
Suppose that (pre-pandemic) on Steve's way to work he passes a beggar. Steve gives the beggar the sandwich he planned to eat for lunch, deciding to buy himself a burrito instead. The beggar expresses real gratitude and hungrily devours the sandwich. The next day, Steve passes the same beggar. He gives him another sandwich. On the third consecutive day, Steve encounters the same beggar. Now Steve thinks to himself "I feel bad for this unfortunate fellow. I wish him well and hope he can find a job or the social services he needs, but I've done enough for him. He's not my problem anymore." Steve's not a bad guy. Indeed, Steve initially acted in a way that exhibited concern for the beggar's wellbeing. But it would be fair to characterize Steve's conduct on day three as deliberately indifferent. Indeed, we could even see how the fact of Steve's prior concern contributes to his current indifference.
Likewise for the Jail officials. The release of prisoners and pre-trial detainees may have reflected genuine concern for the health and safety of both those they released and those they continued to hold. But that act could have led to a sense of having done enough, leading them into something like indifference. To be clear, however, even if the initial act of concern did not result in "compassion fatigue" or the like, the failure to take the measures the district court thought necessary could still constitute deliberate indifference even if preceded by acts of concern.
Finally, it is possible that the five justices who voted to stay the district court injunction thought to themselves that doing so was appropriate on the ground that they are only criminals (and probable criminals). If so, however, that would have been an extremely callous view--and not even accurate. Jails and prisons are not closed systems. Infected prisoners infect guards who then bring the virus home to family members and their communities. Some of them die. Whatever its ultimate reasoning, the SCOTUS majority decision reflected deliberate indifference to the fate of us all.