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A jail or prison visit with a detained client is a routine part of being a criminal defense attorney. The loud clanging of the steel doors being remotely unlocked and locked as we pass on our way to visitation is forever etched in our minds. We sit down and offer personal conversation before getting down to the business of discussing the case. Sometimes in those conversations we get a window into what is going on inside the facility. The client may complain about not getting proper medication, the air temperature being too hot or too cold, and not having access to proper nutrition, personal hygiene products, and other basic necessities of human care. We offer help in whatever manner we can and are often met with indifference or outright opposition from deputies, staff, or medical professionals at the facility. We make our calls or visits while invoking our clients’ constitutional rights and even threatening litigation. These efforts are quickly followed by a motion to the court, hoping that an order from a judge will have a greater effect in getting compliance, but often a judge’s order also will be ignored. These common complaints are often just the tip of the iceberg when it comes to poor and inhumane conditions in detention centers and prisons.
The U.S. Supreme Court first extended the Eighth Amendment’s prohibition of cruel and unusual punishment to the care and treatment of incarcerated individuals in Estelle v. Gamble{1} 1 Estelle v. Gamble, 429 U.S. 97 (1976). in 1976. In Estelle, the Court considered a civil rights lawsuit under 42 U.S.C. § 1983 filed by an inmate and established a “deliberate indifference” standard to liability for failure to provide adequate medical care. Other cases followed. In DeShaney v. Winnebago County Dept. of Social Services,{2} 2 DeShaney Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). the Court most artfully summed up the issue:
When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. … The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment. … Contemporary standards of decency require no less.{3} 3 Helling v. McKinney, 509 U.S. 25, 32, (1993) (quoting DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 199-200).
It would logically follow that since the highest court in the land has recognized for more than 40 years that at the very core of a just and decent society, incarcerated individuals must be given a basic standard of care, these requirements could be expected to be met with some level of obedience by the State and Federal detention facilities. However, in 2019, horror stories of subhuman conditions for inmates still abound in the media. There have been several stories just in the last few months, including a news item about a pregnant detainee forced to give birth alone in her cell{4} 4 Deanna Paul, A Pregnant Inmate Came to Term in Jail. Lawyers Say She Was Forced to Give Birth There — Alone, Wash. Post, May 6, 2019, available at https://www.washingtonpost.com/nation/2019/05/04/mentally-ill-woman-gives-birth-alone-broward-county-jail-attorney-says/?utm_term=.1e601924ab54. and a story about 1,600 inmates at a Brooklyn, New York, jail forced to survive without power or heat in frigid January temperatures for an entire week.{5} 5 Adam K. Raymond, Lawsuit Alleges ‘Inhumane’ Conditions in Frigid Brooklyn Jail, Feb. 4, 2019, available at http://nymag.com/intelligencer/2019/02/lawsuit-alleges-inhumane-conditions-in-cold-brooklyn-jail.html. The range of abuses is vast and prevalent: turning a blind eye to violence and sexual assaults among the population, criminal wrongdoing of guards and other employees, failure to maintain facilities in a livable condition, inadequate or complete denial of access to medical care, overpopulation, overburdened staff, and the list goes on and on.
The shocking and even gory details of these stories provide easy clickbait for media outlets, but does anything actually result from the dissemination of information about what goes on inside the walls of these detention centers? Sometimes nothing happens. Sometimes the media stories or exposés may result in lawsuits initiated by the ACLU or various other watchdog organizations. In the best of circumstances, a Department of Justice civil rights investigation may follow. Those lawsuits or investigations may result in settlements or consent decrees with specific conditions and timelines, but then what? In 2011 the fight regarding prison conditions on a large scale went all the way up to the U.S. Supreme Court in Brown v. Plata.{6} 6 Brown v. Plata, 563 U.S. 493 (2011). The Court directed the California Department of Corrections to reduce the size of its prison population based on Eighth Amendment violations. At the time, the California prison population had swelled to 156,000 persons in a system that was designed to house 46,000. A multitude of other abuses went hand-in-hand with the excessive overcrowding. To its credit, the state of California initiated classification and detention reforms that did effect significant change on the prison and jail population, but they are an outlier in this category and still more changes are needed.
Even when there are investigations, they are not necessarily thorough or complete. Investigations into prison systems have turned up attempts to cover up wrongdoing and abuse by administrators. For example, a death by homicide could be classified as resulting from natural causes to avoid further scrutiny.{7} 7 Katie Benner & Shaila Dewan, Alabama’s Gruesome Prisons: Report Finds Rape and Murder at All Hours, N.Y. Times, April 3, 2019, available at https://www.nytimes.com/2019/04/03/us/alabama-prisons-doj-investigation.html. Consent decrees can be ignored by facilities and the noncompliance can be explained away by citing budgetary restrictions. Average American voters do not like to see more of their tax dollars being taken away for use on people accused or convicted of a criminal offense. In the most extreme situations, inmate abuse is even publicly praised and celebrated. In the case of former Maricopa County, Arizona, sheriff Joe Arpaio’s “tent city” jails — where inmates were forced to endure extreme weather conditions amongst other horrors — the outdoor jails were proudly touted as being tough on crime and left in place for 24 years. He lovingly referred to these jails as “concentration camps,”{8} 8 Valeria Fernandez, Arizona’s ‘Concentration Camp’: Why Was Tent City Kept Open for 24 Years? The Guardian, Aug. 21, 2017, available at https://www.theguardian.com/cities/2017/aug/21/arizona-phoenix-concentration-camp-tent-city-jail-joe-arpaio-immigration. failed to explain or investigate nearly half of all inmate deaths on his watch, and the county paid tens of millions of dollars in wrongful death and injury settlements. Arpaio brazenly defied court orders to stop his practice of unconstitutional profiling, which led to his felony conviction for contempt of court. Despite all this, President Trump pardoned Arpaio and commended him as being an “American patriot.”{9} 9 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 25, 2017, 9:00 P.M.). “I am pleased to inform you that I have just granted a full Pardon to 85 year old American patriot Sheriff Joe Arpaio. He kept Arizona safe!”
The legislature has also made it unreasonably difficult for inmates to do anything about improving their own conditions. In 1996, Congress passed the Prison Litigation Reform Act.{10} 10 42 U.S.C. § 1997e. This legislation places difficult roadblocks in front of individuals who want to file a lawsuit against their jail or prison. For example, the law requires that inmates exhaust all possible internal grievance and appeal procedures, pay all court filing fees in full, and show actual physical injury before filing suit (mental or emotional injuries are not cognizable). These barriers make it nearly impossible for detained individuals to fight the system that holds them.
Defense attorneys are often the closest lifeline for detained clients. They may reach out to us before they reach out to family members or friends because we, presumably, have some power that they do not have. We have more access to the courts, the right phone numbers to call, more knowledge of the system and how it works, and the simple ability of being on the outside looking in. But often, we end up feeling powerless as well. Maybe we can get additional doctor visits, proper medication, or an extra blanket for our clients, but the real fundamental abuses are much harder to combat. Our best efforts on the larger issues involve being an advocate for our clients, sharing their issues and stories with our colleagues to determine widespread problems, documenting notice and demanding accountability when we are able, litigating when possible and most importantly, never forgetting that our clients are more than a case file.
About the Author
Drew Findling is principal of The Findling Law Firm, which he founded after serving as an Assistant Public Defender in Fulton County, Georgia. He has tried federal and state criminal cases throughout the United States and has spoken in CLEs in over 40 states. He is a recipient of the Heeney Award, the NAACP’s Civil and Human Rights Award, a commendation by the Legislative Black Caucus of Georgia, and GACDL’s Indigent Defense Award.
Drew Findling (NACDL Life Member)
Findling Law Firm
Atlanta, Georgia
404-460-4500
drew@findlinglawfirm.com
www.findlinglawfirm.com
@drewfindling
@drewfindling
