"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, October 14, 2015

Gutting Civil Rights litigation: PLRA leads to torturous deaths

I wrote on this blog recently about discrimination against prisoners as civil rights plaintiffs through the so-called Prisoner Litigation Reform Act, providing for a 15-day statute of limitations and for an exhaustion of state remedies for any person detained before trial or incarcerated after conviction.

PLRA provides additional burdens for federal civil rights plaintiffs to address unconstitutionality of prison conditions, such as:

  1. guard brutality;
  2. prolonged solitary confinement;
  3. denial of the most basic medical care;
  4. discrimination on the basis of religion;
  5. denial of rights of communication with family;
  6. punishment for maintaining innocence after conviction

The underlying rationale for enactment of PLRA was that prisoners have nothing to do but sit behind bars and file frivolous lawsuit against the government, wasting taxpayer money for defense of such lawsuits, and that prisoner lawsuits are nothing more than frivolous claims on the taste of peanut butter in prisoner food.

Yet, scholars pointed out that what is taken away by PRLA was more than crunchy peanut butter.  It was a vast assault upon civil rights of prisoners.

PRLA is used to prevent not lawsuits for the quality of peanut butter (a legitimate claim, by the way, if that peanut butter is rotten and dangerous to prisoner's health, but is given to them anyway, with no other choices, or if prisoners are allergic to it), but lawsuits about ANY civil rights violations.

When people in the position of power, who were already not models in observing civil rights of prisoners, were given a carte blanche by PLRA, hell broke lose in prison conditions.

The hell is described here.

And here.

And here.

In Arizona, prison officials offered to a cancer patient, instead of diagnostics and treatment, to drink "energy shakes".  They had him admitted to a hospital only when he ballooned to the size of a pregnant woman on the verge of labor, his LUNG cancer methastasized into abdominal organs - and he died in that hospital.

That death, and many others, is the DIRECT result of PLRA.

That treatment of human beings is inhumane.

That treatment is TORTURE, prohibited by the International Human Rights Convention - to which the U.S. is a member.

As an intern in Prisoners Legal Services of New York, I read with complete astonishment cases where prisoners were denied pain relief in cases of bone fractures.

Complaining to courts made little difference.

Even when such prisoners broke through the 15-day statute of limitations and the "exhaustion of administrative remedies" requirements, for which they could be punished even more, courts tossed their complaints not finding a constitutional violation in denying of pain relief to a caged human being for over a week for fractured bones.

I can take bets, ladies and gentlemen, that if those fractured bones would be fractured bones of a caged animal or pet, petitions would be spreading by now all over the place and judges would quickly change their decisions, calling such inhumane treatment improper.

With human beings, inhumane treatment is, obviously, nothing to worry about, it is business as usual in federal courts.

That said - in an emotional way - let's get down to business and analyze PLRA in a legal way.

In Marbury v Madison, the U.S. Supreme Court clearly stated that an unconstitutional conduct by the government is VOID.  Not voidable, but void, as in - was never legal.

VOID means that there is no time limit to challenge the void act, there is no way to waive a constitutional violation, and there is no way to defend against it.

Yet, PLRA does just that - it imposes a 15-day (!) statute of limitations, it requires "exhaustion of administrative remedies" as a condition precedent to the right to sue in federal court for a FEDERAL constitutional violation - something no other civil rights plaintiffs are required to do.

And, with the existence of the 3-strikes-and-you-are-out statute I've written about before that blocks access to court for prisoners completely, including to those who were merely detained and not yet convicted, the gutting of any semblance of a legal remedy for inhumane conditions in detention (being held in custody of the government before conviction) and incarceration (being held in custody of the government after conviction) is complete. 

Where courts consider anything that a civil rights plaintiff, and especially a prisoner, files - frivolous, with a certification of frivolousness precluding an appeal, it is only a matter of time for a prisoner to acquire those 3 strikes - even if he or she diligently complied, often risking his or her safety or health, with the draconian requirements of PRLA - a 15-day statute of limitations and "exhaustion of administrative remedies",  or requests filed with the same people who brutalize you, starve you and deny you minimal medical care. 

By showing the disaster that ensued after enactment of PLRA, I want people to realize - gutting the rights of victims of constitutional violations, especially the most vulnerable class of such victims, the caged people who are under total control of prison authorities and depend on them for anything and everything, including food and healthcare - leads to very real deaths.

And, if you think rights of prisoners do not matter, think again.

With nearly 99% of conviction rate through pleas, with the death penalty still on the table, with prosecutors falsifying and concealing evidence, police officers lying on the stand, with no proper effective genuine legal defense in criminal cases available, unless you can afford a private counsel, all average American is just one false report away from the reach of PLRA.


Be very afraid.

And petition your representative to repeal PLRA.

It leads to torturous deaths.

The U.S. cannot maintain its claimed status of a civilized country and of a beacon of democracy and freedom when it treats its prisoners in a way that would be considered inhumane for an animal, and deny those prisoners even a right to complain and obtain legal remedies for such treatment.

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