Recent Legal Developments

Published date01 June 2009
Date01 June 2009
Subject MatterArticles
/tmp/tmp-17GR6Gj5l7P5Hj/input Criminal Justice Review
Recent Legal Developments
Volume 34 Number 2
June 2009 307-320
© 2009 Georgia State University
Research Foundation, Inc.
Recent Legal Developments
hosted at
Correctional Case Law, 2008
James E. Robertson
Minnesota State University, Mankato
With its jails and prisons confining more than 1 in every 100 adults in 2008, the nation
reached a correctional milestone (Pew Center on States, 2008). In becoming one of
the 100, a new inmate joins a powerless, insular minority by virtue of its members’ dispro-
portionate poverty, illiteracy, and stigma born of mental illness and deviance (Chemerinsky,
1999; Robertson, 2000, 2001; Smith, 1993). These characteristics have long rendered
inmates vulnerable to abuse by their keepers (Riewe, 1997; Robertson, 2001).
Since the demise of the federal judiciary’s self-imposed and aptly labeled hands-off
doctrine some 50 years ago (e.g., Bethea v. Crouse, 1969; Douglas v. Sigler, 1967; Garcia
v. Steele,
1951), inmates have looked to the federal courts for protection (e.g., Eisenberg,
1993; Feeley & Hanson, 1990; Feeley & Rubin, 1998; Krantz & Branham, 1997). Their
civil rights suits have called on federal courts to act as “the warden” of prison wardens,
“forc[ing] us,” as one federal judge explained, “to intervene when those responsible for the
conditions have failed to act” (Harris v. Flemming, 1988, p. 1245). Because the U.S.
Supreme Court rarely grants certiorari, U.S. Courts of Appeals comprise the de facto courts
of last resort for more than 99% of federal appellants (Rivero, 2006).
In keeping with previous installments, this survey examines select prisoners’ rights
decisions of the U.S. Courts of Appeals during 2008 that merited full-text publication in the
Federal Reporter, Third Series. The author chose them because they addressed persistent,
important, or emerging constitutional issues about confinement in jails and prisons.
Unless otherwise noted, these cases came to the U.S. Courts of Appeals by way of
summary judgment or dismissal for the defendants in U.S. District Court. Under such
circumstances, the U.S. Courts of Appeals view all facts and draw all inferences in the light
most favorable to the plaintiffs. When appropriate, the case summaries below reflect this
manner of assessment. The reasoning of the court of original jurisdiction will not be
discussed given that the U.S. Courts of Appeals review most of these cases de novo.
Inmate-on-Inmate Assault
Prisons remain violent places (Finn, 2005; Page, 2000; Robertson, J. E, 2004). Inmates
foremostly fear rape (Jones & Schmid, 1990). The most recent National Inmate Survey of
prison rape (Beck & Harrison, 2007), based on the self-reporting sample of 23,398 state
and federal prisoners, estimated that 4.5%—or about 60,500—of the nation’s prisoners
experienced sexual violence during the 12 months prior to the self-interviewing date or, for
inmates who had yet to serve 12 months at the facility, since their arrival.

308 Criminal Justice Review
A significantly higher rate of sexual assault likely occurs among gay inmates (Wooden
& Parker, 1982). The inmate subculture brands them as feminine—and thus fair game for
exploitation (Robertson, 2004a). A persistent question presented to the U.S. Courts of
Appeals is whether failure to provide gay inmates with enhanced protection violates the
Eighth Amendment prohibition of cruel and unusual punishment in the event of their
being raped. In Howard v. Waide (2008), the Tenth Circuit Court of Appeals addressed
this question. The “openly homosexual” plaintiff (p. 1238) had been extorted by gang
members because of his vulnerability to rape, and when he could no longer afford to pay
for his safety, they forced him into prostitution. After he reported his victimization, prison
officials transferred him to the defendants’ prison. He promptly told them of his sexual
victimization. Nonetheless, the defendant officers failed to provide him with enhanced
protection, leaving him to fend for himself in the general population. Some 2 months later,
after he reported contact with a gang member who had extorted and prostituted him prior
to his transfer, the defendant officers offered the plaintiff a bargain: protection from the
gang in exchange for his naming and incriminating his assailants by wearing a wire. He
refused, fearing that he would be labeled a snitch, a repugnant label for prisoners (Benefield
v. McDowall,
2001; Kessler & Roebuck, 1996; Reece v. Groose, 1995), which, as another
inmate explained earlier, “was dreaded, because it could make the inmate a target for other
prisoners’ attacks” (Comstrock v. McCrary, 2001, p. 699, note 2). Shortly, members of the
gang in question raped him on least two occasions, leading him, in relevant part, to bring
a civil rights action over these assaults.
In cases of inmate-on-inmate assault, a finding of cruel and unusual punishment requires a
showing that the defendant prison staff were “deliberate indifferent” to a “substantial risk of
serious harm” to the plaintiff, whereupon (a) the defendants had actual knowledge of (b) an
objectively “substantial risk of serious harm” to the plaintiff but (c) did not undertake
reasonable preventive measures (Farmer v. Brennan, 1994, pp. 834-835). Because the Howard
plaintiff had refused to name his likely assailants, the defendants asserted a lack of actual
knowledge of his vulnerability—to which the plaintiff rejoined, “they must have known.” The
Tenth Circuit held that the defendant officers’ awareness of his being gay and of slight built,
while relevant to the question at hand, did not comprise “decisive weight” (p. 1238) unless the
defendants acquired some “direct evidence” of the dangers facing him (p. 1239). For many
inmates in his situation, direct evidence would be elusive unless they ratted out their
tormentors prior to being raped. Not so in the Howard case; the court held that the defendants
had acquired the needed direct evidence when the plaintiff informed them some months
earlier of his pretransfer rape at the hands of the same gang who later victimized him in the
defendants’ prison and whose members were known to be confined there.
Whereas the Tenth Circuit’s ruling in Howard v. Waide suggested a liberal reading of the
deliberate indifference test, the Seventh Circuit in Grieveson v. Anderson (2008)
demonstrated a decidedly narrow but mainstream interpretation. In Grieveson, the plaintiff’s
fellow inmates labeled him a snitch because of his association with a prosecution witness.
Knowing this, the defendant jailers moved him to another cellblock. The cell transfer
mattered little; his fellow inmates beat him severely for his supposed breach of the inmate
code. Five more attacks by inmates occurred over a 5-month period. Meanwhile, the
plaintiff filed several grievances, complaining in part of the failure to protect him from
these several assaults, including one witnessed by an officer who later advised him “to

Robertson / Recent Legal Developments 309
learn how to fight harder or don’t come to jail” (p. 769). Finally, jail staff arranged for his
transfer to a federal prison in another state.
As in most failure-to-protect lawsuits, the outcome depended on whether the individual
defendants in fact knew that the plaintiff faced a substantial risk of harm from his fellow
prisoners. The defendants admitted a generalized knowledge of this plaintiff’s vulnerability
by way of the several beatings administered by other inmates. Yet, the Grieveson court
deemed this knowledge below the caliber of the actual knowledge required by the deliberate
indifference test. The Seventh Circuit panel held that no liability ensued for the assaults
visited on the plaintiff because the defendant officers never knew of a “specific threat to
his life,” that is, a threat by a named inmate (p. 776). Case law has largely supported this
stance: “A prisoner normally proves actual knowledge of impending harm by showing that
he complained to prison officials about a specific threat to his safety” (Pope v. Shafe, 1996,
p. 92). Whereas the plaintiff in Howard v. Waide could refuse to rat-out his assailants and
still get his case before a federal jury, the Grieveson court would not make allowances for
“the cardinal precept” among the inmate subculture—“no inmate should report another
inmate to officials” (Pugh v. Locke, 1976, p. 325).
Medical Care
In 2008, Cohen, a leading commentator on correctional health care, wrote the following:
Our jails and prisons have increasingly become the de facto clinical depositories for hundreds of
thousands of inmates who are very sick and who require all manner of specialty medical, dental,
and mental health care. Prisons are not only the new mental asylums; they are the new commu-
nity hospitals and emergency wards for certain segments of the poor. (Cohen, 2008, p. 5)
Cohen found that “doubt” has “replace[d] trust” among prison staff in assessing the
legitimacy of medical complaints (p. 6). In Phillips v. Roan County, Tennessee (2008), the
defendant officers’ doubt amounted to deliberate indifference and led to a custodial death
caused by untreated diabetes. Fifteen days before the inmate’s death, jailers found her
unconscious and without a pulse. She regained consciousness, only to see her medical con-
dition worsen. Twelve days before her death, she requested a medical appointment. Ten...

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