"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.

Thursday, March 24, 2016

The statutory rape against inmate laws expose #PrisonerLitigationReformAct for what it is - a sham to completely deprive prisoners of civil rights

I wrote on this blog about the effect of the so-called Prisoner Litigation Reform Act on civil rights litigation of prisoners.

The social media is inundated with horrifying stories of prisoner abuse.

Prisoners in U.S. state and federal prisons are being:

"... the body of a once 6-foot-3, 185 lb. man, looked like a different person.
“I said this is not my nephew,” she says describing her nephew’s body. “I asked them are you sure you have the right person. “I said this was not my nephew. Probably 90 pounds and about 70 years old.”
Here is this "90-pound 70-year-old man", #JamychealMitchell - before the torture by starvation.  He was 23 at the time of arrest for allegedly stealing (he died while presumed innocent) a $5 cake, he was 6'3" and 185 pounds in weight.

A 100 pound loss of weight over 4 months - and nobody cared or sounded an alarm?

What kind of jail was it, a Nazi concentration camp?  Looks like it.

A mentally ill man who was 24 years old and NOT CONVICTED of any crime, he was just arrested and charged, and ordered to be held without bail for petty theft?  And starved to death while being in jail for 4 months in pre-trial detention?

What an absolutely horrible death!

What a torture!

In New York, inmates were starved as a measure of "discipline" right up until end of December, 2015.

Yet, most of prisoner's lawsuits claiming that their constitutional rights were violated, are dismissed.

And, the U.S. Congress invented an easy way to dismiss those lawsuits, alleging HORRIFIC constitutional violations and human rights violations - the Prisoner Litigation Reform Act, imposing a 15-day (!) statute of limitations on prisoners to start the process of "exhausting all administrative remedies" before their right to sue in federal court under 42 U.S.C. 1983, the Civil Rights Act, may arise.

A free person whose constitutional rights are violated, is not so restricted.

Even though ANY statutes of limitations for constitutional violations are unfair, because, first, no such statute of limitations exist in the statute itself, they are superimposed by court decisions in violation of Article III and Article I of the U.S. Constitution (only the U.S. Congress, and not the courts, have the exclusive right to legislate and amend federal statutes), a 15-day statute of limitations imposed upon inmates who are under complete control of the very people to whom and against whom the inmate must file grievance - to protect his or her right to sue in federal court for constitutional violations, is simply unconscionable.

Back in law school, I was an intern at Prisoners Legal Services of New York, a non-profit dealing with prisoner complaints about guard brutality, deprivation of medical care and other violations of human rights.

I saw, in letter after letter from inmates, stories about retaliation of prison authorities for trying to file grievances and secure their right to a federal lawsuit.

Imposition of "exhaustion of administrative remedies" condition upon inmates within the system that may abuse them even more for trying to do that exhaustion is a deliberate exposure - "by law" - of inmates to the risk of more grievous harm, from the same abusers, if they so much as dare to follow the conditions precedent imposed upon them to secure their right to vindicate constitutional violations in the first place.

Prisoners are in the "custody" of state or federal authorities who run the prison, to the point that there are state laws indicating that an inmate does not have legal capacity to consent to sex because the inmate is under complete control of the prison administration and that same guard.

That PLRA makes no sense whatsoever, can be illustrated with the recent case of sexual abuse that reportedly happened in Delaware  County Jail, Delhi, New York.

Before I start covering this case, it must be noted that, according to reports, sexual abuse in jail by prison employees is persistent.

Rape victim advocates know how difficult it is for such victims to come forward and make a disclosure.  Sometimes it takes years.

In the case of suing prison authorities for deliberate indifference under 42 U.S.C. 1983, for knowingly allowing a sexual predator to prey on inmates - even if prison authorities truly knew about the sexual abuse and allowed it to continue - rape victims are allowed only 15 days to come forward and report the rape, while their abuser is still lurking around and can do even more damage to them.

Does it make any sense?

Is it fair?

Look what reportedly happened in Delaware County jail, Delhi, New York.

Reportedly, "[d]etails about the alleged sexual encounter were slim, other than that it happened while the woman was confined at the correctional facility in Delhi in early 2015".

Let's compare the dates.

It happened - in jail where everything is under surveillance and videotaped - IN EARLY 2015.

We are now at the end of March of 2016, so more than a year passed after the sexual assault - VIDEOTAPED sexual assault, most likely.

And, charges were brought against the guard ONLY NOW?

And the guard "resigned" ONLY NOW instead of being immeidately fired as soon as the sexual assault was caught on videotape?

So, if the CO's "brothers and sisters" in jail covered him up, WHAT ELSE did they cover up?

For how long was the rapist allowed to be around inmates after he raped an female inmate?

Now, the legal remedy for the victim would be:

1) sue the County in state court - but then she would have had to file a "Notice of Claim" within 90 days of rape, while being in the custody and under control of the rapist.  I wonder whether not firing the rapist immediately was part of the plan of Delaware County to prevent the filing of the Notice of Claim against the County.  I will FOIL the County to verify whether the Notice of Claim was filed;

2) sue the County in federal court under 42 U.S.C. 1983 - for that PLRA requires the victim, within 15 days' time, to start the process of "exhausting state administrative remedies".  I will FOIL the Delaware County to verify whether PLRA grievances were filed.  In both cases, the rape victim would have had to complain about her rapist while being in the custody of that same rapist.

Apparently, she complained only when she was released - thus losing her right to sue the County in state or federal court, but saving herself from worse physical and sexual abuse.

And, the County, with all of those surveillance cameras in jail available, are claiming that they've "just learnt" about it, and are lamenting about how horrible the sexual misconduct of the jail guard was.

Note that the jail guard in question was not fired, but was allowed to "resign".

Note that there is no indication that the person accused of statutory rape is put in jail.

See the comments under the article announcing the criminal charges filed against the jail guard:

People are afraid to come forward and reveal their true name, even claiming they were victimized in the same jail as co-workers, not inmates.

Free people are afraid.  What can be said about inmates who is in physical control of jail employees to the point that the state law makes them incapable of giving consent to sex.

So, the state law makes inmates incapable of giving consent to sex, but the federal law requires them to risk being raped even more to be able to secure a remedy for violation of their civil rights when they are raped while state jail/prison authorities are deliberately indifferent to their plight, like the Delaware County Jail appeared to be?  

And, against this "encouraging" background, let's look at the new case that is being heard by the U.S. Supreme Court at this time, as to whether the inmate exhausted all "available" administrative remedies under PLRA.

There is a lot bickering going on in this new U.S. Supreme Court case Ross v Blake as to whether the inmate jumped through all of the hoops put out for his inconvenience by the state, or just some.

This is the "land of the free", ladies and gentlemen, seeking to deny an inmate a right to vindicate constitutional violations committed against him while he was in custody, on a technicality - because he may not have exhausted all "administrative remedies".

It is good that the inmate had the courage to exhaust ANY remedies, while being in complete PHYSICAL control of those who abused  him in the first place - night and day, physical, food, medical and armed control.

In control of those people whose disciplinary records are not even disclosable to the public, at least in New York, under the insultingly named Civil Rights Law 50-a.

In control of those people who can:

  • starve you to death;
  • deprive you of medication and medical care (that happens in Delaware County jail a lot, I had a lot of complaints from inmates about it, and personally ensured provision of medical care to some of them, against resistance of Delaware County jail);
  • beat you up;
  • sexually assault you...

Civil rights litigation by inmates is not about the taste of peanut butter, which is the reason why PLRA was put in place.

It is about horrible violations of most basic human rights in state and federal jails and prisons.

PLRA should be repealed.

It is an unconscionable statute putting people's lives and safety at risk by requiring them to ask for more retaliation, more brutality, more sexual abuse from the abusers who have complete physical control over them.

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