Cruel and Unusual Idiocy

Last week, the Supreme Court heard oral arguments in Minneci v. Pollard, a case that involves cruelties inflicted on a prisoner that should be considered violations of the Eighth Amendment, which prohibits "cruel and unusual punishment." There is, however, an unfortunate catch. Because Pollard was held in a privately operated prison, both his jailers and the federal government are claiming that his constitutional rights could not have been violated. A Court decision accepting this argument would have devastating consequences given the increasing privatization of state and federal prisons. Jails could violate the rights of prisoners at will, operating outside of constitutional restraints.

Richard Lee Pollard was being held on a 20-month prison sentence when he fractured both of his elbows. This was just the beginning of his litany of painful medical issues. The prison's chief of security made him remove his sling and put on his jumpsuit, even though lifting his arms caused him excruciating pain. He was then forced to wear a complicated handcuff-and-chain device colloquially known as a "black box," which put agonizing downward pressure on his broken arms for more than six hours. The prison's medical staff denied Pollard the treatments recommended by independent medical professionals, preventing him from receiving a splint or medical therapy. He then had to perform physical labor in the prison kitchen.

Officials at the prison, in other words, inflicted unnecessary short- and long-term pain on a prisoner for no good reason. This would seem to be a straightforward violation of Pollard's constitutional rights. In the landmark 1971 decision in Bivens v. Six Unknown Named Agents, the Supreme Court argued that federal agents could be sued for violating a person's Fourth Amendment protection from unreasonable search and seizure even if Congress did not pass a law explicitly saying they were accountable. The Court extended this principle to Eighth Amendment violations by prison officials in 1980. If agents in federal prisons violate the constitutional rights of prisoners, they can be sued for damages.

In Minneci v. Pollard, however, the abuses occurred in a prison that contracts with the government. This complicates matters. The Constitution only applies to state actors-not private individuals. Here, the prison is nominally "private," but it was performing state functions under the color of federal law. In essence, as an amicus brief submitted by a group of law professors notes, the federal government is arguing that Pollard's right to a constitutional remedy was "contracted away by the Bureau of Prisons without his consent when the Bureau unilaterally made the decision to house him in a privately run prison." In Pollard's case, the Ninth Circuit Court of Appeals held as much, arguing that federal prisoners in private prisons could sue for violations of constitutional rights.

Exempting private prisons from constitutional oversight is particularly perverse given that, if anything, conditions in private prisons are likely to be worse than government-run prisons. Banking on Bondage, a disturbing and comprehensive American Civil Liberties Union report on private prisons, makes for grim reading. Private prisons now house nearly 10 percent of adult inmates and 50 percent of juvenile prisoners. But not only has the use of private prisons failed to save the government money, such facilities lack incentives to provide adequate conditions or reduce recidivism. Private prisons generally have higher rates of violence, both among inmates and between inmates and staff. Staff members are generally have less training than their counterparts in government-run prisons, and turnover is higher, making constitutional violations more likely. To exempt these facilities from constitutional oversight would be a disaster.

Both the prison and the federal government in this case argue that Pollard's suit should be rejected because he could advance legal claims under state law. But prisoners are the ultimate unpopular minority, and neither state legislatures nor elected state judges have much incentive to protect their rights. Constitutional protections enforced by federal courts are crucial to ensuring the safety of prisoners and of the communities they will be released into.

Unfortunately, the oral argument last week strongly suggests that the Supreme Court will overrule the Ninth Circuit and deny Pollard's federal claim. This would be a serious mistake. As more and more prisoners are housed in private institutions, decreasing oversight is the last thing that we should be doing. Denying Pollard a constitutional remedy for the cruelty inflicted on him would be the latest case of the Roberts Court unacceptably watering down constitutional protections.