Articles Posted in Civil Rights

An exposé in the Los Angeles Times has brought renewed focus to something we lose sight of too often here in the United States: prisoners still have rights, and that includes the mentally-ill.

The newspaper notes that “three decades of federal litigation” has conclusively established “that psychiatric care in prison is a constitutional right” and yet it tells the story of a man suffering from schizophrenia who spent 46 hours with his arms and legs “shackled to a chair in the San Luis Obispo County jail.” The man died a short time after being released from the chair and then “dumped on the floor of a nearby cell.”

The case has shocked the local community, and led to “a record $5 million legal settlement” according to the newspaper. But the events that led to this tragedy are worth exploring because of the lessons they hold for the rest of the country, including us here in Oregon. It is essential to understand that the victim was being held at a county facility because of a state program designed to reduce prison overcrowding. The result of that program was to push many prisoners out of state facilities and into municipal and county ones. This is significant because state and local jails are rarely equipped to deal with long-term inmates who have mental health issues.

An effort by the Trump administration to roll back an obscure Medicare rule has provoked a loud, and unexpected, backlash according to multiple reports in The Hill, a newspaper that specializes in covering the federal government in general and Congress in particular. The paper reports in June an obscure regulatory body known as the Centers for Medicare and Medicaid Services (CMS) said it intends to repeal a “rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.”

This is an issue that I have been following for some time both in terms of this specific rule (click here to read my blog from last year when it was originally issued) and in terms of the broader question of arbitration ‘agreements’ that seek to deny ordinary Americans access to our courts when they suffer financial or physical neglect at the hands of a rich or powerful company (an issue I first addressed in 2013).

Thus, it is very heartening to see such a widespread backlash against the administration’s proposed rule changes. According to The Hill, 16 states and the District of Columbia filed formal objections to the policy change when these came due early last week. “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and to seek judicial redress for our claims,” the state attorneys general wrote in objecting to the proposed rule changes, according to The Hill. “This is especially true when consumers are making the difficult decisions regarding the long term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

An almost off-hand remark by President Trump during an address to police officers last week was swiftly denounced by police officials in red and blue states alike. As the Washington Post reports, “some police leaders worried that three sentences uttered by the president… could up-end nearly three decades of fence-mending.”

Speaking to officers gathered on Long Island for an event focused on gang violence, Trump spoke about “roughing up” suspects and said: “When you guys put someone in the car and you’re protecting their head, you know, the way you put their hand over? Like, ‘don’t hit their head’ and they just killed somebody – don’t hit their head. I said, you can take the hand away. Okay?”

Denunciation of the comments came from police departments across the country. Even the department Trump had addressed, in Suffolk County, New York, put out a statement rejecting his suggestion that ignoring the right of people being arrested would be OK in certain circumstances. At the most basic level, an admonition to police to mistreat suspects goes against the presumption of innocence that lies at the base of American law. On a more immediate level it raises fears, as the Post notes, that individual officers will find encouragement in the president’s words, seeing in them a kind of validation for bad, even illegal, behavior.

The death by thirst of an inmate in a Wisconsin jail last year has returned to the news this week raising serious civil rights issues and, in the process, shining a light on the broader problem of inmate abuse nationwide.

The story from Milwaukee is shocking on every level. According to a recent report in HuffPost, citing the Milwaukee Journal-Sentinel, a mentally-ill man died of severe dehydration last year while being held in the county jail after he “was kept in his cell for seven days straight after jail employees cut off his water supply.” Last week prosecutors, speaking at a formal inquest, called the action “highly irregular and contrary to standard operating procedure in the jail,” according to HuffPost. The article does not use the phrase “cruel and unusual punishment” – something explicitly prohibited by the Eighth Amendment to the US Constitution – but on its face it is difficult to see how cutting off a prisoner’s water for a week would not rise to that standard.

The case is receiving renewed attention as an inquest seeks to determine whether or not criminal charges should be brought against any of the jail’s employees or their supervisors. The decision will be made by a six-person jury. The case highlights a broader point about deaths in custody that some organizations, notably the American Civil Liberties Union, have been making for some time. An article on the ACLU’s website documents the degree to which “excessive force by correctional staff… leads to extreme, unnecessary suffering and sometimes death.” Along the same lines, a HuffPost investigation found that more than 800 people died in American jails last year, 182 of them within three days of their arrest.

A lawsuit filed last week by Oregon’s ACLU is shining a light on the state’s obligations to provide medical treatment for prisoners, according to a news release from the group and coverage in The Oregonian. Last week the group filed suit on behalf of a transgender woman who is currently an inmate at the Two Rivers Correctional Facility in Umatilla. The ACLU says the prisoner “is being denied essential medical care. The suit… argues that it is cruel and unusual punishment to deny medically-necessary care to prisoners.”

The Oregon Department of Corrections’ own “Health Services” web page acknowledges that “state and federal laws have established that inmates are entitled to health care during incarceration. Health care services available to inmates must be comparable to health care provided in the community in order to meet the state’s legal obligation. This means that all types and levels of health care must be provided in a clinically appropriate manner by properly credentialed professionals in settings equipped and designed for the delivery of health care.” By these parameters health care, legally speaking, has to be considered a civil right where prisoners are concerned. Denial of appropriate care, therefore, can be challenged using 42 US Code 1983 – a key legal text concerning civil rights. 42 USC 1983 allows anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” to sue the person or institution which violated those rights in civil court.

So if we take that acknowledgement by the state DOC as a starting point, the question must be asked: how can the agency defend the conduct alleged in the ACLU lawsuit? Specifically, the group charges that the state has denied its client’s repeated “requests for hormone treatment, despite an official diagnosis of gender dysphoria. The lawsuit also accuses state officials of placing (the plaintiff) in segregation or solitary confinement for weeks and sometimes months at a time,” the newspaper reports. When placed in a Disciplinary Segregation Unit following a suicide attempt earlier this year “staff mocked her and called her a ‘freak’ and other vulgar names,” the suit alleges. A mental health professional who evaluated the woman on behalf of the DOC referred to her repeated requests for essential hormone treatments as “quality of life issues” according to The Oregonian, and repeatedly referred to the prisoner using male pronouns (the 25 year old prisoner has publicly identified as female since the age of 16).

A short report over the weekend in The Oregonian regarding an inmate death at Multnomah County’s Inverness jail could mark the beginning of a series of lengthy legal questions. According to the newspaper an inmate “was found dead inside a cell Saturday, according to the county sheriff’s office.” The paper adds that the county medical examiner has begun an investigation.

From this seemingly straightforward beginning there is the potential for significant legal claims to develop. Life in prison, or even in a shorter-term facility like a county jail, can often be difficult and harsh. Many Americans do not take issue with this reality. That essentially political view, however, does not change the fact that when the government at any level takes control of every aspect of an individual’s life by placing them in custody it also takes on certain responsibilities. Leaving aside the quite significant fact that people in custody who have not been convicted of a crime (which is a substantial portion of those in custody at any given moment) remain innocent until proven guilty, there is the equally important fact that the state has a duty of care for those in imprisons even after they have been found guilty of a crime.

A key statute that applies to cases like these, and the legal actions for wrongful death that can sometimes emerge from deaths in custody, is 42 United States Code 1983, a short paragraph that “is invoked so frequently that it is often simply referred to as ‘Section 1983’” according to an analysis published in the Santa Clara Law Review.

According to the Oregon Department of Prisons website our state first experimented with private prisons in the late 1800s. The state penitentiary “was leased to a private company… Since this concept was becoming very popular nationwide, Oregon’s legislature approved the experiment.” It did not last long. “In one day every inmate at the penitentiary escaped. Most walked out the front gate.”

This amusing historical nugget is a reminder that some ideas never quite go away – in this case the idea that private companies are always more efficient and that their need to make a profit will not result in either sloppy work or abuses (the 19th century version of private prisons made their money mainly by hiring the prisoners out as labor). Today, private prisons are illegal in Oregon, and our state is one of 11 that do not use the private system at all, according to a 2012 report by The Sentencing Project. An announcement by the Obama administration last month that the Federal government will phase out its use of private prisons is also likely to put a dent in the industry.

As a recent article in The New Yorker outlines, however, beyond the full-scale privatization of prisons the growth of all prisons over the last generation along with America’s collective assumption that private services are always superior to public services has led to some shocking arrangements in both government and private-run prisons. These often deny basic civil rights to prisoners with the goal of making money for the government. For example, the magazine notes, “short phone calls from prison can cost up to fifteen dollars, largely because the companies operate as monopolies within prison walls. The private companies also offer state and local authorities a percentage of their revenue, which contributes to the cost of the calls and creates other perverse incentives. Some jails, for instance, have removed in-person family-visitation rooms to make way for ‘video visitation’ terminals, provided by private firms, which can charge as much as thirty dollars for forty minutes of screen time.”