The Volokh Conspiracy

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be implicit compensation in these deals, with donor countries and the United Nations Office of Drugs and Crime modernizing the prisons and courts of receiving countries, getting them new “kit,” grants and other foreign aid. The stories of these dealings, often done on a case-by-case basis, would be fine reading in itself.

In the latest twist, the receiving country, the Seychelles, has found new efficiency: transferring the pirates it convicts back to breakaway regions of the Seychelles, which the capturing states were loath to do for human rights reasons. Again, under international law, piracy is as much, if not more, within the jurisdiction of the capturing state as the receiving state. Now we will have triple-transfered pirates. (One group of pirates captured by Germany and transferred to Kenya have apparently sued in a German administrative tribunal and won some kind of judgment, though I have not managed to get much on the details.)

Prisoner offshoring is now well outside the mainstream in the U.S. It would raise many constitutional difficulties. There would be questions about whether the circumstances in the foreign prisons violated particular constitutional provisions or rights of prisoners; access to counsel would seem inherently difficult. (The agreements discussed above stipulate that the receiving country will ensure adherence to relevant human rights standards, and generally provide some monitoring). One might also think that having to serve time abroad, away from kith and kin, for offenses committed here would be an Eighth Amendment violation in itself. And I’m sure there are lots of other problems.

On the other hand, if the Dutch/Belgium deal, or the Somali system, inspires other Western states, some might suggest that the Eighth Amendment is the kind of general constitutional stuff that has to be interpreted in light of changing international standards, in a global constitutional dialogue with other Western nations. Fortunately, “Decent Respect for the Opinions of Mankind” does not require following those opinions (or maybe even listening to them).

Despite the Court’s recent decisions limiting life sentences for juvenile defendants, generally speaking it’s very rare for courts to hold that sentences other than death sentences constitute “cruel and unusual punishment.” But State v. Proctor (Kan. Ct. App. July 6, 2012) so holds, in a way that seems likely to affect many similar cases in Kansas (and perhaps in other states that have similar schemes):

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation. Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation. For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.

Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system. We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment ... for persons convicted of designated sex offenses who then commit property crimes. For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections. The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies. But the commission of those two offenses in that order may lead to life in prison with no prospect for release.

Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result. The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s. It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states. Those are the ingredients of an unconstitutionally disproportionate punishment.

A bit more about the nature of the offense:

The facts about Proctor’s offenses are limited based on the disposition of the case in the district court. In 2010, Proctor pled guilty to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21–3511 and two counts of lewd and lascivious behavior in violation of K.S.A. 21–3508(a)(2). Aggravated indecent solicitation entails “enticing or soliciting” a child younger than 14 years old to engage in an unlawful sex act. It is a severity level 5 person felony. Lewd and lascivious conduct requires that the perpetrator, motivated by a sexual urge, expose his or her genitals in the presence of a nonconsenting person. If the nonconsenting individual is younger than 16 years old, the offense is a severity level 9 person felony.

At the time of the plea, Proctor was 19 years old and had no criminal history. The factual basis for the plea showed the crimes took place in 2009. The victim was T.C., a 12–year–old boy. Proctor had known T.C. and his family for some time. For reasons that are not entirely clear from the record, Proctor lived with T.C. and his family for several months in 2009 and committed the crimes during that time. Proctor apparently cajoled T.C. into having manual and oral contact with Proctor’s penis. Proctor also had manual contact with T.C.’s penis, behind, and anus. The record indicates multiple occurrences of illicit contact, but the precise or approximate number was not specified.

T.C. suffered no physical injuries. He did, however, have ongoing emotional problems and was in counseling. Other than recurrent insomnia, those problems were not detailed in the record. T.C. did not attend Proctor’s sentencing, and nobody appeared on his behalf or submitted a written statement for the district court’s consideration.

Proctor was himself a victim of sexual abuse in his early adolescence but apparently never received counseling. He also had not been through any sort of treatment program for sex offenders. Information submitted to the district court at sentencing indicated Proctor would likely benefit significantly from such a program.

Given his lack of criminal history, Proctor fell in a border box on the sentencing grid for the aggravated solicitation conviction and faced incarceration for between 21 and 34 months. The border box sentences are treated as calling for presumptive incarceration. But a district court may impose a nonprison sentence on a border-box defendant upon a finding that he or she is amenable to “an appropriate treatment program” and participation in the program would be more effective than incarceration in “reducing the risk of ... recidivism” consistent with “community safety interests.” The district court made that finding based on the availability of sex offender treatment for Proctor.

The district court imposed a standard sentence of 32 months in prison on Proctor for the aggravated solicitation conviction, put him on a 36–month probation, and ordered that he be placed in community corrections and participate in the treatment program. The district court imposed other restrictions and requirements on Proctor, such as refraining from use of alcohol or illegal drugs, obtaining gainful employment, and reporting as required to court officers supervising his probation. The sentence is not considered a departure.

The lewd and lascivious convictions were presumptive probation offenses. The district court granted Proctor probation on them. The district court imposed a standard 6–month sentence on each of those counts and ordered that they be run consecutive to one another and to the aggravated solicitation count, yielding a controlling prison term of 44 months. At sentencing, the district court told Proctor that he would be required to register as a sex offender under K.S.A. 22–4901 et seq. and that he would be subject to lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G), (d)(2)(F).

Given the potential impact of the case, I expect the state will ask the Kansas Supreme Court to review the case, and that the Kansas Supreme Court will indeed agree to do so.

Today Justice Sotomayor authored what strikes me as a rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order. What is it about this pro se prisoner case that grabbed Justice Sotomayor’s attention, and led her not only to say that she would have granted the case, but to announce that she would have voted in the inmate’s favor?

Let’s take a look.

Pitre is an HIV-positive inmate in the Louisiana state prison system who has been prescribed medication to treat his HIV. In 2008, he was transferred to a particular corrections facility, the Phelps Correctional Center, where inmates apparently have to do hard labor. Pitre decided to protest the transfer by refusing to take his HIV medication. Pitre was then made to do hard labor like the other inmates in the facility, and he has been really struggling to do the work given his illness and his failure to take his medication. Pitre complained that the state was making him do harder labor than he could do given his illness, in violation of his constitutional rights. The state responded that Pitre was bringing it on himself because he was refusing to take his medication that would enable him to do the work. In effect, each side blamed the other: Pitre blamed the state for making him work when he was in such bad shape, and the state blamed Pitre for refusing to take his medication so that he was in such bad shape in the first place.

The magistrate judge agreed with the state’s view, and recommended that the case be dismissed as “patently frivolous”:

A claim of deliberate indifference based on an inmate’s work assignment is actionable only when a prison official assigns an inmate to a job that the official knows would “significantly aggravate” the inmate’s serious medical needs. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989)(citing Black v. Ciccone, 324 F.Supp. 129, 133 (W.D.Mo.1970). From the outset, plaintiff was aware of the results that were certain to follow should he discontinue his medication. Nevertheless, with full knowledge of those effects, he chose to discontinue an admittedly successful course of treatment. All of the deleterious symptoms experienced by plaintiff, and complained of herein, were caused by his refusal to participate in the therapeutic plan offered by the defendants; his current symptoms were neither caused nor even exacerbated by the defendants. Plaintiff, has been, as the saying goes, “hoist by his own petard” FN3 and this attempt to blame his current predicament on the defendants is absurd. A ruling in plaintiff’s favor herein would encourage him to continue on this self destructive path.

FN3. Hamlet, Act III, Scene 4, lines 206-07, “For ‘tis the sport to have the engineer/Hoist with his own petard” In common usage the phrase means to fall into one’s own trap.

The district court agreed, adopting the magistrate’s report and recommendation in a one-page order. The Fifth Circuit then affirmed in a one paragraph order that read as follows:

Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:
The judgment of the district court is affirmed. Mr. Pitre has been given medical care, but he refuses to take medication which results at times in physical problems. Evidence of conscious indifference is not presented. The report of the magistrate judge dated April 29, 2009, 2009 WL 1491042, explains the reasons for dismissal. AFFIRMED.

Pitre then filed his own cert petition, which the Court denied over Justice Sotomayor’s dissent. Justice Sotomayor would have construed the pro se petition liberally as making claim that Pitre had been punished for his refusal to take his medication:

His pro se complaint and attachments thereto, “liberally construed,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), allege . . . that respondents . . . punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.

Specifically, Sotomayor would have liberally construed the complaint as stating a Due Process claim that making Pitre do hard labor was an attempt to improperly punish him to force him to take his HIV medication despite his liberty interest in refusing medication. This was an open question, Justice Sotomayor contended:

We have . . . held that prison officials may forcibly treat a mentally ill inmate with antipsychotic drugs “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” Harper, 494 U. S., at 227. We have not considered, however, whether prison officials may require inmates with HIV to take medication, such that the refusal to do so might justify the imposition of sanctions by such officials.

Second, Justice Sotomayor would have held that the liberally construed complaint stated an Eighth Amendment violation:

Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain. But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him—just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post, see Hope, 536 U. S., at 738. Pitre’s allegations, if true, describe “punitive treatment [that] amounts to gratuitous infliction of ‘wanton and unnecessary’ pain that our precedent clearly prohibits.” Ibid. I cannot comprehend how a court could deem such allegations “frivolous.” Because I believe that Pitre’s complaint states an Eighth Amendment violation, I would grant the petition for a writ of certiorari and reverse the judgment below.

I find Justice Sotomayor’s opinion a bit puzzling. I haven’t seen a copy of the complaint, so it’s unclear if it really could be liberally construed in the way Sotomayor does. But even so construed, I’m not sure I get the argument. First off, I’m not sure what Sotomayor is doing with the Due Process argument: Is she suggesting the Court take the case to decide that issue, even though it was not discussed below? It’s not entirely clear.

On the more substantive Eighth Amendment claim, Sotomayor suggests that if we construe the complaint as saying that Pitre was punished for his refusal to take medication, then it’s an Eighth Amendment violation. But that seems to artificially remove Pitre’s own role in creating his condition out of the picture, which doesn’t seem plausible to me. Sotomayor relies on Hope v. Pelzer, where the inmate was shackled after his misconduct was completed: The inmate had some role in triggering the punishment, as is the case here, and the Court still found an Eighth Amendment. But Hope didn’t have any control over whether he was shackled after he engaged in misconduct: He was left to suffer. That’s not true with Pitre, who has made the voluntary and continuing choice not to take his medication that appears to be the cause of his work being so hard for him. It’s hard to imagine that there would have been an Eighth Amendment violation in Hope if Hope had been shackled, given the key, and told that he could let himself out if he wanted. Or so it seems to me: I suppose this depends on part on what we take to be the likely ameliorative effect of taking the HIV medication, which doesn’t get discussed in any of the opinions.

Anyway, whatever the substantive merits of Pitre, it’s particularly interesting that Sotomayor chose to write on it. As far as I can tell, there was nothing special about this case that made it high-profile or would normally get a lot of attention. It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick “Splitless, factbound, I recommend DENY.” That alone makes this opinion quite interesting.