RETHINKING THE REASONABLE RESPONSE: SAFEGUARDING THE PROMISE OF KINGSLEY FOR CONDITIONS OF CONFINEMENT.

• Author: Rutkowski, Hanna

Nearly five million individuals are admitted to America's jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution's mandate that they not be punished at all, pretrial detainees would no longer need to demonstrate that officials subjectively intended to harm them, only that the force they applied was objectively unreasonable. Courts of appeals have begun to extend this shift to claims involving conditions of confinement, but the promise of that move is threatened by the availability of a cost defense for officials who respond reasonably to detainees' needs given the resource constraints they face. This Note argues that pretrial detainees can only be adequately protected from punishment if the reasonable response includes an affirmative duty to notify superiors of those constraints.

INTRODUCTION I. HISTORICAL FOUNDATIONS AND THE KINGSLEY SCHISM A. Foundations of Modern Prison Litigation B. Parallel Development of Standards for Conditions of Confinement and Use of Force C. Obstacles to Bringing a Successful Conditions Claim D. Kingsley v. Hendrickson II. KINGSLEY AND CONDITIONS A. Kingsley and Conditions in the Courts of Appeals B. The Threat o/Peralta's Cost Defense III. PROTECTING DETAINEES IN LIGHT OF PERALTA A. Evaluating Potential Solutions to the Peralta Problem B. Rethinking the Reasonable Response CONCLUSION INTRODUCTION

Jeffrey Pendleton died of COVID-19 in early April 2020 while shackled to his bed at a Chicago hospital, after contracting the disease while awaiting trial at the Cook County Jail. (1) As of November 6, 2020, he is one of seven confirmed deaths in Cook County Jail custody, and one of over 500 positive cases. (2) While the COVID-19 pandemic has shed light on one life-threatening risk faced by incarcerated individuals, there are countless other risks that accompany the American system of pretrial detention. There are other people like Jeremy Laintz, whose failure to report for a drug test while out on bond ultimately cost him not only his liberty but also part of a lung and portions of six toes. (3)

Pendleton and Laintz are not alone. Over ten million admissions are made to America's jails every year, corresponding to at least 4.9 million individuals. (4) At any given time, about two-thirds of those held in jails are pretrial detainees--individuals who have not yet been convicted of a crime. (5) Many of these individuals suffer from underlying physical and mental health conditions that require ongoing treatment and care. (6) The challenges pretrial detainees face are exacerbated by a persistent lack of funding for medical and mental healthcare; a 2019 article in the Annals of Internal Medicine describes "a growing epidemic of inadequate health care in U.S. prisons," with shrinking budgets, huge populations, and for-profit healthcare contracts all contributing to the problem. (7) Jails experience even greater challenges because of their high levels of detainee turnover. (8) Each newly admitted detainee has the potential to pose a difficult-to-treat challenge for the facility's meager healthcare staff. (9) Moreover, the level of care available may depend on the fortuity of where the individual happens to be incarcerated, since states vary dramatically in the resources and staffing they devote to medical care. (10)

The COVID-19 crisis offers an important lesson in the tragedy that can result when facilities lack sufficient resources to provide adequate care to all those who need it. (11) This Note is about what happens when understaffed and underresourced jails fail to meet the medical needs of those in their care and the constitutional law that governs the resulting claims. While the need for constitutional protections for pretrial detainees is clear, the interpretation of the constitutional provision that provides protection remains unsettled.

Convicted prisoners are protected by the Eighth Amendment's prohibition against cruel and unusual punishment. (12) Pretrial detainees, on the other hand, are protected by the general due process guarantees of the Fifth and Fourteenth Amendments. (13) The cruelty of punishment is not a relevant consideration for pretrial detainees, because absent a conviction, they cannot be punished at all. (14) The Supreme Court, however, has long imported the Eighth Amendment doctrine for convicted prisoners into the Fourteenth Amendment doctrine for pretrial detainees. (15) Due process claims brought by pretrial detainees generally come in two forms: those concerning use of force and those concerning conditions of confinement. (16) Prototypical conditions claims involve the environment and living situation behind bars (including medical care). (17) Use-of-force claims typically involve the level or type of force employed to maintain safety and security, such as that needed to remove a noncompliant prisoner from their cell or to break up a fight. (18)

Under current Supreme Court doctrine, pretrial detainees effectively have the same rights when it comes to their conditions of confinement as those who have been convicted of a crime. They may be considered "innocent until proven guilty," but as long as officials do not act wantonly with respect to the conditions of their confinement, those officials cannot be found liable for the damages that result. (19) Increased protection as to conditions may be on the horizon. In 2015, the Court decided Kingsley v. Hendrickson, a suit brought by a pretrial detainee alleging that officers used excessive force during a cell extraction. (20) The Court held that, in the context of use of force, pretrial detainees are protected by a higher standard than the standard applied to convicted prisoners, one in which wanton conduct or intent to harm the prisoner is not required for liability. (21)

The initial question, therefore, is whether and how the logic of Kingsley applies to conditions. There is reason to believe that the logic of the decision applies even more strongly in the context of claims challenging conditions of confinement than it does to claims involving use of force, (22) but courts of appeals remain split on whether and exactly how to extend Kingsley. (23) Against that background, this Note argues that even if Kingsley is extended to conditions of confinement, it may not adequately protect the constitutional rights of pretrial detainees to be free from punishment. The gravamen of the Kingsley decision is that officials can be held accountable when they act unreasonably toward a detainee, regardless of whether they intended to harm the detainee. The problem is that officials who respond reasonably given the resource constraints they face may be able to assert a "cost defense," leaving detainees with no one to sue when their injuries result from scarcity. (24)

Part I provides a historical overview of the Court's jurisprudence involving both pretrial detainees and convicted prisoners. It explains that, while these two groups are formally protected by different constitutional amendments, the claims they brought were largely treated as functionally equivalent prior to Kingsley. Part I also dives into the resurgent distinction after Kingsley and briefly introduces the potential cost defense. Part II considers the impact of Kingsley on conditions-of-confinement claims, covering whether and how it has been extended outside the context of use of force and analyzing its vulnerability to the cost defense. Part III explores and rejects two possible responses to that vulnerability before proposing an additional safeguard based on tort principles: an information-forcing affirmative duty to notify as part of any reasonable response.

1. HISTORICAL FOUNDATIONS AND THE KINGSLEY SCHISM

   Though convicted prisoners file claims under the Eighth Amendment while pretrial detainees file claims under the Fifth or Fourteenth Amendment, courts have historically treated these two types of claims as largely interchangeable. Kingsley changed this for claims involving use of force, imposing heightened protections for pretrial detainees. It remains unclear whether these heightened protections will be extended to claims involving conditions of confinement. To understand how Kingsley may impact pretrial-conditions claims, it is necessary to understand how the standards for both use-of-force and conditions claims evolved over time. The case law pertaining to the two types of claims overlaps significantly, diverging at times before coming back together.

   This Part begins by detailing the theoretical distinction between claims brought by pretrial detainees and convicted prisoners, as well as the ways the Supreme Court has collapsed that distinction. It then provides a historical overview of the standards governing claims for conditions and use of force, stopping just short of Kingsley. Finally, it introduces some of the obstacles to bringing a successful claim, including generally applicable challenges such as qualified immunity as well as the availability of a conditions-specific cost defense for officials who respond reasonably given substantial resource constraints.

   1. Foundations of Modern Prison Litigation

      Although they often reside side by side in our nation's penal institutions, (25) pretrial detainees and convicted prisoners are protected by different constitutional amendments. The Eighth Amendment protects convicted prisoners from cruel and unusual punishments, but the Supreme Court has consistently held that this protection applies only after a person has been convicted...