Yes, we call ourselves, “The land of the free,” but we do so while conveniently ignoring the following. Although the United States has but 5% of the world’s population, we have 25% of the world’s prisoners. The sad fact of the matter is, we incarcerate more people per capita, and far longer, than any other civilized nation on earth. There’s something wrong with that.
If you’re listening to this, that’s because one of your loved ones is probably locked up somewhere in a penal colony, or a prison, or a jail, or a penitentiary, at either the state or federal level. You’re probably looking for someone to help because your loved one has either been killed, beaten, injured or, perhaps, their rights are being ignored. As you know, up to a third or a quarter of people locked up behind bars have serious mental health needs that are going unaddressed in the penal system. When we stopped treating mental illness, we started incarcerating the mentally ill. We now call imprisonment the “premier form of treatment” for those in need of care.
Let’s say a loved one of yours has been killed or seriously injured, what do you do? In the event of death, you, obviously, need a lawyer. The Department of Corrections is a closed universe. It will be very difficult for you to get any information out of them without a fight. You’ll probably want to bring a claim arising under the 8th Amendment to the United States Constitution claiming that your loved one has been deprived of their right to be free from cruel and unusual punishment in violation of the 8th Amendment.
Understand that 8th Amendment claims are difficult. Not every application of force amounts to cruel and unusual punishment. The United States Supreme Court has held that the 8th Amendment is violated when prison officials use pain for sadistic reasons, for the very purpose of causing pain. A landmark case involves chaining a man to a whipping post and leaving him, basically, to molder in the hot sun in the southwest. That case was held to be gratuitous violence, gratuitous imposition of pain, for no legitimate penological purpose.
Bringing a claim in the federal courts for a decedent, that is, a person who has expired, requires a lawyer who is skillful in the manipulation of federal civil rights statutes. There are various immunities, in particular, qualified immunities, which give the benefit of the doubt to state actors, or prison officials, in close cases. Listen to an Attorney General or a lawyer that is for the public representing prison officials and you’ll almost always find that they think cases are close. When cases are not close, and prison officials engage in outright, unlawful misconduct, you’ll find that prisons will fire them, charge the guards or jailers with criminal offenses, and refuse to indemnify or stand behind the prison official who injured your loved one. It does you no good to bring an action against the prison official if there’s nothing to collect. It’s important for you to get into the case early to find out whether there is adequate training, whether supervisors turned a blind eye to willful misconduct on behalf of their subordinates and so forth. And the law, again, as I say, is hopelessly complicated, and you’re going to need help sorting your way through it.
With respect to non-Constitutional claims, or Constitutional claims in general, what you learn is, you cannot sue the state or the federal government. You cannot sue without their consent. That’s because we are governed in the United States by laws steeped in a notion called “Sovereign Immunity.” Now, Erwin Chemerinski, a law scholar on the West Coast, claims that Sovereign Immunity has no place in a Republic, that if, “We the People” hold government accountable, the Sovereign’s declaring itself immune from accountability is an obscene joke. Of course, Chemerinski is right, but the courts aren’t listening. And, right now, Sovereign Immunity is the law of the land.
If your loved one has been killed in prison, and it’s the result of prison misconduct, you may need to seek a waiver by the state of its Sovereign Immunity. This can be done in a couple of different ways or, basically, three different ways.
You can pursue a claim under what’s called the “Claims Commission” of a given state. That is, there is a commissioner who can, on behalf of the state, waive the state’s Sovereign Immunity so that you can bring a tort action against the state in egregious cases. In the alternative, you can seek a special act from your legislature; that is, permission from the lawmakers, themselves, in your particular case, to bring an action. You may also want to, finally, check the statutes that govern your various state to see if there are any exceptions to Sovereign Immunity passed by the legislature.
As to claims involving surviving prisoners, you need to be very, very careful about something called the “Prison Litigation Reform Act.” The United States Supreme Court long ago declared that, unless a prisoner exhausts his or her administrative remedies by filing a timely administrative complaint and taking every available appeal, they will not be able to turn to the courts for a claim of money damages later on.
In a case my office handled before the United States Supreme Court, we tried to claim that when prisoners were beaten by guards, beaten to the point of defecating on themselves, they weren’t raising complaints in the courts about prison conditions. “Being beaten up by guards ought not to be a condition of confinement,” we said to the United States Supreme Court. But, the Court disagreed in a 9-0 ruling, holding that “Any claim against a prison official must be exhausted before turning to the federal courts.” Typically, that means filing a prompt complaint, and your loved one may, or may not, know how to do that. Although prisoners are given an orientation about prison policies and procedures when first admitted to their various penal institutions, few prisoners have the presence of mind to recall that years, months, or decades later.
You want to contact a lawyer when you first learn that something has gone amiss with your loved one, whether they’ve been beaten, held in confinement too long, been denied medical condition, or are otherwise abused by their guards, contact a lawyer immediately. What that lawyer should do would be to place on notice the Attorney General’s office with jurisdiction over the prison and to let them know that a claim is coming. You also want to have your loved one contact a lawyer immediately so the lawyer can research and advise on what exhaustions should be undertaken to preserve claims in the courts. And, then, the prisoner needs to persevere in pursuing the claims through the various administrative hurdles that prisons place between prisoners and justice.
Do not give up. No society is any better than the manner in which it treats the least among us. We do a horrible job of treating prisoners with respect and dignity, and it speaks poorly of all of us. Fight back. Find a lawyer, ready, willing, and able to stand up to the state or federal government and demand justice for your loved one. Just because your loved one’s been locked up, there’s no reason to believe that he or she has been forgotten. Fight back. Stand tall for justice. Bring your claim to the appropriate court and see that justice is done. When your loved one is killed, maimed, or otherwise injured while in state custody, hold the state accountable and responsible for what its actors have done.
It’s ironic how often prosecutors stand in the well of the court and say of those we love, “They need to be held accountable for the wrongs that they do.” When the state does wrong to a person in its custody, it needs to be held accountable, too. An aggressive and vigorous lawyer can see to it that justice is done.