Wake Forest Law Review
17Nov

Death Knell for Death Penalty After the Parkland Shooter Verdict?

Categories: Current Issues Blog
Comments Off on Death Knell for Death Penalty After the Parkland Shooter Verdict?

By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.

[1] Executions Overview, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/executions-overview. Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida; Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM), https://www.cnn.com/2022/10/13/us/nikolas-cruz-jury-deliberation-thursday.

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM), https://www.nytimes.com/2022/10/13/us/mitigating-factors-parkland-jury.html?smid=url-share.

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022), https://www.nytimes.com/2022/10/13/us/parkland-trial-verdict-gunman.html?smid=url-share.

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022), https://www.nytimes.com/2022/10/15/us/parkland-trial-juror-death-sentence.html.

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM), https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html?smid=url-share.

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022), https://www.miamiherald.com/news/local/crime/article267258577.html.

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022), https://apnews.com/article/parkland-shooter-jury-recommendation-live-updates-15c5121be1b8b7a73b85607d602e6ba2.

[19] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx.

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM), https://www.politico.com/newsletters/florida-playbook/2022/10/14/parkland-verdict-may-reopen-florida-death-penalty-law-00061815.

[24] Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida.

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/us/florida-death-penalty-jury.html.

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022), https://apnews.com/article/florida-governor-race-2022-midterm-elections-4b2fe3a05668ed67119511838339110e.

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM), https://www.wftv.com/news/local/gov-desantis-calls-changes-death-penalty-law-after-parkland-shooter-sentencing-hearing/57NEAEVPVFHNRIHQWBHTAWFHFY/.

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence-database?state=Florida.

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM), https://www.politico.com/news/2022/10/13/parkland-school-shooter-to-get-life-sentence-for-killing-17-00061661.

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM), https://www.npr.org/2022/11/01/1133041129/florida-is-poised-to-change-the-way-it-imposes-the-death-sentence-in-trials.

[46] Id.

Tags:
3Sep

2020 Spring Symposium: Bail Reform (Archived)

Categories: Symposia
Comments Off on 2020 Spring Symposium: Bail Reform (Archived)

Click Below For Information on Our 2021 Symposium: Secondary Trauma in the Legal Profession

 

Sponsored by:

The Wake Forest Eudaimonia Institute & The Wake Forest Provost’s Fund for Academic Excellence

Friday, January 31, 2020

8:45 a.m. to 3:00 p.m.

Wake Forest University School of Law, Room 1312

CLICK HERE TO REGISTER NOW

CLE Credits: 4.75 Hours APPROVED

This event is free and open to the public. Breakfast provided at 8:15 am.

Panel Videos

Risk Assessment / Right to Counsel / Community Voice

Parking

A campus parking map can be found here. Parking will be available for registered symposium attendees near the Wake Forest School of Law in lot W1. Signs will be posted at the approved parking lots to guide visitors to the event.

Campus Map/Lunch Options

  1. Entrance from Polo Road
  2. Entrance from University Parkway
  3. Entrance from Reynolda Road
  4. Law School
  5. Parking Lot
  6. Subway
  7. Food Court (Chik-fil-a, Moes, Shorty’s Tavern)

Event Description

The Wake Forest Law Review is hosting its annual Spring Symposium on January 31, 2020 regarding pretrial detention and bail reform at the Wake Forest University School of Law. This topic is scheduled to elicit leading scholars on the subject from around the country as well as other important stakeholders in North Carolina and elsewhere.  The Symposium is set to shed light on the large, yet often unaddressed problem of pre-trial detention in the United States.

The scope of pretrial detention in America is significant: More than half a million people sit in jail at any given time in America because they have been merely accused of a crime.  Such broad pretrial detention deprives people of their liberty before being afforded significant process, undermines the presumption of innocence, increases crime, and wastes tax dollars by locking up a lot of people who are not dangerous. Direct cost estimates for our current state of widespread pretrial detention range between nine and twelve billion dollars per year.  And those numbers do not account for the loss of human flourishing that pretrial detention inflicts, including loss of employment and housing as well as defendants’ lost contributions to economic growth or to tax bases.  For defendants who are the primary wage earners in their family, widespread use of pretrial detention leaves families to fend for themselves and depend more heavily on public assistance.  Moreover, recent empirical evidence demonstrates that defendants detained pretrial are more likely to be convicted than those released pretrial and are likely to serve longer postconviction sentences.

The symposium will bring together criminal law stakeholders, academics, and community groups to discuss the current state of bail reform and how to continue reforming these systems.  With each panel our aim is to combine theory with an understanding of facts on the ground regarding various aspects of pretrial detention and from various places across the country.  We hope that you will be able to join us for this event.  A light breakfast will be provided, and CLE credit is available.  

Event Schedule

8:00 am – 8:45 am – Breakfast and guest arrival at the law school.

8:45 am – 9:00 am – Opening Remarks.

9:00 am – 10:15 am – Risk Assessment Panel

10:15 – 10:25 – Break

10:25 am – 11:45 am – Stories of Reform Panel

11:45 pm – 12:45 pm – Lunch

12:45 pm – 1:40 pm – Right to Counsel Panel

1:40 pm – 1:50 pm – Break

1:50 pm – 3:00 pm – Community Voice Panel

3:00 pm – Closing remarks

Panelist Bio’s and Panel Descriptions

Risk Assessment Panel

The risk assessment panel will delve into the various factors that go into determining the risk of setting bail for a detained defendant. Current standards are often based upon bail charts that automatically set bail standards. This panel will discuss the pros and cons with that standard and how to effectuate new standards that take into account the likelihood of a defendant to flee, the likelihood of a defendant to commit another illegal act, and the reasonable bail they can pay based on their circumstances.

Panelists:

  • Sarah Desmarais
    • Dr. Desmarais is a Professor in the Applied Social and Community Psychology Program and Director of the Center for Family and Community Engagement at North Carolina State University. She received her Ph.D. from the Law and Forensic Psychology Program at Simon Fraser University. Dr. Desmarais’ current research focuses on the assessment and treatment of risks and needs associated with criminal behavior, interpersonal violence, and terrorism.
  • Sandra Mayson
    • Professor Sandra G. “Sandy” Mayson has joined the University of Georgia School of Law teaching Criminal Law, Evidence, and a seminar on Criminal Justice Reform. Mayson comes to UGA from the University of Pennsylvania Law School, where she served as a Research Fellow for the Quattrone Center for the Fair Administration of Justice. She previously served as a Furman Academic Fellow at New York University School of Law. Mayson received her B.A. in comparative literature summa cum laude from Yale University. She earned her law degree magna cum laude from New York University, where she was an articles editor of the New York University Law Review, an Institute for International Law and Justice Scholar, a Florence Allen Scholar and a member of the Order of the Coif.
  • Lauryn Gouldin
    • Professor Lauryn Gouldin teaches constitutional criminal procedure, criminal law, evidence, constitutional law, and criminal justice reform. Her scholarship focuses on the Fourth Amendment, pretrial detention and bail reform, and judicial decision-making. Gouldin graduated from Princeton University with a major in the Woodrow Wilson School of Public and International Affairs and received her J.D., magna cum laude, from New York University School of Law. Following law school, Gouldin clerked for the Hon. Leonard B. Sand in the Southern District of New York and for the Hon. Chester J. Straub of the U.S. Court of Appeals for the Second Circuit.
  • Jenny Carroll
    • Professor Jenny Carroll joined the University of Alabama School of Law faculty in 2014. She is the Wiggins, Childs, Quinn, and Pantazis Professor of Law. She graduated summa cum laude with an A.B. from Duke University and with honors with a J.D. from the University of Texas. She also holds an LL.M. from Georgetown University Law Center in Clinical Advocacy, which she earned in conjunction with the Prettyman Fellowship. Prior to her years of practice as a public defender and teaching, she clerked for the Honorable William Wayne Justice of the United States District Court, Eastern District of Texas.

Stories of Reform Panel

Perhaps the most important aspect for lawyers to consider when they learn about an area of the law and its potential shortfalls are the results of test cases in other jurisdictions. This panel will discuss how other jurisdictions have altered their approach to bail through legislation, local prosecutor initiatives, community action, and judicial intervention. North Carolina practitioners will be empowered with knowledge regarding what approaches to bail reform have been most effective and what unintended consequences may have followed.

Panelists:

  • Jessica Smith
    • Professor Jessica Smith is Director of the UNC School of Government’s Criminal Justice Innovation Lab. The Lab brings together a broad range of stakeholders to learn about criminal justice problems, implement innovative consensus solutions, and measure the impact of their efforts.
    • Smith came to the School of Government in 2000 after practicing law at Covington & Burling in Washington, D.C., and clerking for Judge W. Earl Britt on the U.S. District Court for the Eastern District of North Carolina and for Judge J. Dickson Phillips Jr. on the U.S. Court of Appeals for the Fourth Circuit. In 2006, she received the Albert and Gladys Hall Coates Term Professorship for Teaching Excellence; in 2013, she was named by the Chancellor as a W. R. Kenan, Jr. Distinguished Professor, one of the University’s highest academic honors. Smith earned a BA, cum laude, from the University of Pennsylvania and a JD, magna cum laude, Order of the Coif, from the University of Pennsylvania Law School, where she was managing editor of the Law Review.
  • Spencer Merriweather
    • Spencer Merriweather is the current District Attorney for Mecklenburg County. Merriweather earned a law degree from the University of North Carolina at Chapel Hill in 2005. He received his undergraduate degree from Princeton University, where he served as undergraduate Student Body President and on the University Board of Trustees for four years following graduation in 2000. Between college and law school, Spencer worked on Capitol Hill as a congressional staffer for Del. Eleanor Holmes Norton (D-DC). He served as the first director of her Commission on Black Men and Boys.
  • Caitlin Fenhagen
    • Caitlin Fenhagen is the Criminal Justice Resource Director for Orange County, North Carolina. The Orange County Criminal Justice Resource Department (CJRD) was created by the Board of County Commissioners to oversee, support and enhance jail alternatives programming in Orange County. Prior to her position at the CJRD, she worked for eight years as the Deputy Capital Defender for the Office of the N.C. Capital Defender.  After graduating from UNC School of Law, she was an Assistant Public Defender in Philadelphia, the Bronx, and Orange County. She also spent two years as an attorney at the Center for Death Penalty Litigation.
  • Brandon Garrett
    • Professor Brandon L. Garrett joined the Duke Law faculty in 2018 as the inaugural L. Neil Williams, Jr. Professor of Law. Garrett received his BA in 1997 from Yale University. He received his JD in 2001 from Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit and then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City.

Community Voice Panel

The community voice panel will address the movement of many community groups to come to the aid of defendants who cannot make their bail. The viewpoint of these stakeholders and their knowledge of the bail system and its effects on detainees will aid practitioners in developing meaningful arguments to consider when facing bail hearings.

Panelists:

  • Jocelyn Simonson
    • Professor Simonson teaches courses in criminal law and evidence. Her scholarship explores ways in which the public participates in criminal justice processes and how that participation, in turn, has the potential to lead to broader changes in the justice system. Prior to joining the Brooklyn Law School faculty in 2015, Professor Simonson was an Acting Assistant Professor of Lawyering at New York University School of Law. Her background also includes work as a public defender with the Bronx Defenders and as a judicial clerk for the Hon. Barrington D. Parker, Jr., U.S. Court of Appeals, Second Circuit. She is a graduate of Harvard Law School, where she was the Editor-in-Chief of the Harvard Civil Rights–Civil Liberties Law Review, and received her B.A. from Yale University.
  • Andrea Hudson
    • Andrea Hudson is an experienced director with a demonstrated history of working in the civic & social organization industry. She is the current director of the Bail Fund at Community Success Initiative in North Carolina.
  • Kristie Puckett-Williams
    • Kristie Puckett-Williams is a Regional Field Organizer for the ACLU of North Carolina’s Campaign for Smart Justice. She is a Charlotte native who holds an M.A. in Human Services Counseling: Addiction and Recovery Counseling. Having survived domestic violence, drug addiction and incarceration, Kristie is now an advocate and activist, fighting for the rights of all marginalized and disenfranchised people. Her goal is to use her educational and life experiences to convey a message of strength and hope in the community as well as a message of recovery, restoration and redemption.
  • Mary Hooks
    • Mary Hooks is the co-director of Southerners on New Ground. The organization builds, sustains, and connects a Southern regional base of LGBTQ people in order to transform the region through strategic projects and campaigns developed in response to the current conditions in our communities. Mary joined SONG as a member in 2009 and begin organizing with the organization in 2010.
  • Yemi Adegbonmire
    • Yemi Adegbonmire is the General Counsel of The Bail Project. Prior to joining TBP, Yemi was a legal executive at the Walt Disney Company, where she served as legal counsel to ABC Media Networks, Maker Studios Inc., Disney Consumer Products and Interactive Media, and Disney’s Direct to Consumer and International Division. Yemi earned both a Bachelor of Arts and Juris Doctor from Wake Forest University, and holds a Master of Health Science from Johns Hopkins University. Yemi is a former Department of Heath and Human Services Public Health Analyst and currently serves on Lambda Legal’s National Board of Directors. Yemi is a member of Delta Sigma Theta Sorority Incorporated and discovered her passion for cooking Thai cuisine while teaching abroad in Bangkok. 

Right to Counsel Panel

The right to counsel at bail hearings is not guaranteed by the Constitution. However, the right to representation at a hearing that determines a person’s freedom is a very important consideration. This panel will discuss the implications of having counsel at the bail hearing. It will also discuss strategies counsel can implement to have bail reconsidered and reform efforts that have provided a right to counsel during bail hearings.

Panelists:

  • Doug Colbert
    • Professor Colbert joined the faculty of the University of Maryland School of Law in 1994 after directing the criminal justice clinic and teaching civil rights at Hofstra Law School and visiting at Northeastern and Utah Law Schools. Prior to entering teaching, he was a senior trial attorney in the criminal defense division of the NYC Legal Aid Society. Professor Colbert’s recent scholarly activities have focused on reforming states’ pretrial release systems and guaranteeing counsel at the bail stage. He founded and directed the Lawyers at Bail Project, which represented 4,000 indigent defendants at bail hearings.
  • James Williams
    • James Williams is the retired Chief Public Defender of Orange and Chatham counties. After a career dedicated to addressing racial and social justice issues, Williams continues to pursue social justice reform in his retirement. Williams has founded the North Carolina Public Defenders’ Committee on Racial Equity, the North Carolina Commission on Racial and Ethnic Disparities, and the Orange County Bias-Free Policing Coalition. Williams brings a career of knowledge regarding defendant’s rights and social justice reform to this panel.

Tags:
27Mar

Fourth Circuit Reverses Dismissal of Prisoners’ Complaint for Mootness

Categories: 4th Cir. Blog Archive Civil Cases
Comments Off on Fourth Circuit Reverses Dismissal of Prisoners’ Complaint for Mootness

By John Van Swearingen

On March 24, 2017, the Fourth Circuit issued a published opinion in the prisoner civil rights case Porter v. Clarke. Plaintiffs, originally four Virginia death row inmates, filed a complaint in the United States District Court for the Eastern District of Virginia alleging that the conditions of their confinement amounted to cruel and unusual punishment violative of the Eighth Amendment. One inmate was executed during the course of this action, leaving three inmates as Plaintiffs. Defendants, the Director of the Virginia Department of Correction and the Warden of the Sussex I State Prison, thereafter changed the policies at issue in the complaint. The district court subsequently dismissed Plaintiff’s action for mootness. Plaintiffs timely appealed, claiming their action is not moot.

Facts and Procedural History

In November 2014, when Plaintiffs filed this lawsuit, the Virginia Department of Corrections was operating under a pair of 2010 policies that governed the living conditions of death row inmates. Plaintiffs spent twenty-three hours a day in seventy-one-square-foot cells, alone, with a steel bed, a desk, and a combination commode-and-sink. Death row inmates could not have “contact” visits with anyone; all visitation was separated by plexiglass. The warden had unlimited discretion in granting contact visits with immediate family under “extreme circumstances.”

Inmates were allotted one hour of “outdoor recreation” five days a week. This consisted of an empty outdoor cell similar in size to the inmates’ living cells. Inmates had zero access to any group behavioral, educational, vocational, or religious services.

In August 2015, Defendants established new interim guidelines permitting death row inmates one-and-a-half-hour weekly contact visits with immediate family, one-and-a-half-hour weekend and holiday contact visits with other approved visitors, one-and-a-half-hour outdoor recreation sessions five days a week, daily one-hour indoor recreation sessions with up to three other inmates, and a daily fifteen-minute shower. Defendants built a new outdoor recreation area for group activities and an indoor recreation dayroom for group behavioral, educational, vocational, and religious services.

In December 2015, Plaintiffs and Defendants filed cross-motions for summary judgment. Defendants never explicitly moved for dismissal on the grounds of mootness. At the motion hearing, Defendants also noted that they would not take any action binding them to the new guidelines, stating instead that the fluid nature of corrections require that they be able to increase security back to “lockdown status” if need be.

In May 2016, the district court requested an update from Defendant’s on the status of the interim guidelines. Defendants filed an affidavit stating they had updated to new policies providing one-and-a-half-hour outdoor recreation five days a week, one-hour indoor recreation with up to four inmates daily, fifteen minute daily showers, weekly one-and-a-half-hour contact visitation sessions with immediate family and one approved other visitor, non-contact weekend and holiday visitation, and extended visitation sessions granted on a case-by-case basis. Per Defendants’ affidavit, the new policies will be reviewed annually and updated in no later than three years.

In July 2016, the district court granted summary judgment for Defendants’ despite the Defendants’ refusal to neither admit that the pre-2015 inmate conditions violated the Eighth Amendment nor offer any guarantee that the pre-2015 policies would not be restored. The lower court dismissed the Plaintiff’s cross-motion as moot, and Plaintiffs timely appealed.

Mootness Requires More Than a Voluntary Cessation of the Challenged Behavior

Under Article III § 2 of the United States Constitution, federal courts are deprived of subject matter jurisdiction when litigation ceases to involve a “case or controversy.” In other words, as noted by the United States Supreme Court in Powell v. McCormack, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” 395 U.S. 486, 496 (1969).

However, in City of Mesquite v. Aladdin’s Castle, Inc., the Supreme Court also noted that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” 455 U.S. 283, 289 (1982). As noted by the First Circuit in ACLU of Mass. v. U.S. Conference of Catholic Bishops, a savvy litigant could otherwise render itself immune to litigation by voluntary ceasing a challenged behavior upon the filing of a complaint, then resume that behavior following dismissal for mootness. 705 F.3d 44, 54–55 (1st Cir. 2013).

Instead, a Defendant seeking dismissal for mootness must, pursuant to the Supreme Court’s holding in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., meet the heavy burden of showing that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” 528 U.S. 167, 190 (2000). This burden is not met if, as in the Fourth Circuit’s decision in Pashby v. Delia, a defendant retains the authority to reinstate a challenged policy. 709 F.3d 307, 316–17 (4th Cir. 2013).

Nothing here bars Defendants from returning to the original policies addressed in Plaintiff’s complaint. Indeed, they have stated that the policies may be reinstated in some form if a situation demanded “lockdown” of the inmates. Further, Defendants expressly refused to commit to the revised policies or admit that the original policies violated Plaintiff’s Eighth Amendment rights. The Fourth Circuit expressly declined to support or denounce the original policies, noting that there may be valid “penological rationale” for reverting to the original policies as described if a situation rendered those policies appropriate. However, the Fourth Circuit noted that this very possibility rendered the dismissal of Plaintiff’s complaint for mootness improper.

Disposition

The Fourth Circuit reversed the district court’s judgment and remanded for further proceedings. Since Defendants expressly retained the discretion to reinstate the policies challenged by Plaintiffs, the voluntary dismissal of those policies did not render the action moot.

Tags:
9Nov

Fourth Circuit Rules Virginia’s Geriatric Release Program Violates Eighth Amendment Rights of Juveniles Serving Life Sentences for Non-Homicide Offenses

Categories: Civil Cases
Comments Off on Fourth Circuit Rules Virginia’s Geriatric Release Program Violates Eighth Amendment Rights of Juveniles Serving Life Sentences for Non-Homicide Offenses

By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.

Disposition

The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

Tags:
7Nov

Fourth Circuit Deems Deprivation of Prisoner’s Medical Care Unconstitutional

Categories: 4th Cir. Blog Civil Cases
Comments Off on Fourth Circuit Deems Deprivation of Prisoner’s Medical Care Unconstitutional

By Kelsey Mellan

On November 4, 2016, the Fourth Circuit issued a published opinion in Scinto v. Stansberry, a civil case involving a prisoner who was allegedly denied medical attention while in a North Carolina prison (“Prison”). Plaintiff Paul Scinto, Sr. suffers from diabetes and claims that while he was incarcerated, he was denied medical care that resulted in permanent injury. Plaintiff alleged this denial of medical care violated his Eighth Amendment right, which prohibits the infliction of “cruel and unusual punishment.” The current issue before the Fourth Circuit is whether the district court erred in dismissing Plaintiff’s constitutional claims against Dr. Derick Phillip, Administrator Susan McClintock, and Warden Patricia Stansberry for denying him medical care while under their supervision at the Prison. In response, Dr. Phillip and Administrator McClintock claimed that because of qualified immunity, they were shielded from civil liability. The Fourth Circuit affirmed the district court’s decision regarding Warden Stansberry and vacated its decision in terms of Dr. Phillip and Administrator McClintock as the court determined their actions violated Plaintiff’s Eighth Amendment rights. Furthermore, the Fourth Circuit rejected the Defendants’ invocations of qualified immunity.

Facts & Procedural History

Plaintiff entered custody at the Prison in June 2005 after serving multiple years at different federal prisons. While incarcerated, Plaintiff suffered from numerous medical conditions, including high blood pressure, hepatitis C, and insulin-dependent diabetes. There were multiple incidents that occurred at the Prison giving rise to these claims. When Plaintiff first arrived at the Prison in June 2005, Dr. Phillip, his primary prison doctor, prescribed him daily insulin injections to control his diabetes. On June 14, 2005, Plaintiff alleged that he requested an insulin injection from Dr. Phillip because his blood sugar was abnormally high. Plaintiff then claimed Dr. Phillip denied him an insulin injection, opting to create a diet plan for Plaintiff instead. According to evidence presented by Plaintiff, Dr. Phillip never followed through on this meal plan Dr. Phillip claimed the only reason he did not give insulin to Plaintiff on June 14 was because of his “angry” attitude and threatening behavior. Dr. Phillip routinely failed to provide insulin to Plaintiff. Plaintiff alleged that inadequate treatment of his diabetes resulted in damage to his nervous system, kidneys, and eyesight.

An additional incident took place on August 24, 2005 when Plaintiff suffered from a medical emergency causing him to experience extreme stomach pain, vomit blood, and become incontinent. Plaintiff claims that despite his multiple attempts to render assistance from Dr. Phillip and Administrator McClintock, he was not provided proper medical attention until two days later, at which time he was diagnosed with gallstones. Both Dr. Phillip and Administrator McClintock interacted with Plaintiff during this medical emergency and took no action to provide medical care for him.

Finally, Plaintiff alleged he was denied a proper diabetic diet during his stay at the Prison. He claimed that every meal served at the Prison was high in sugar and was accompanied by a sugary drink. When he expressed these concerns to both Warden Stansberry and his congressman who forward the concerns to the Warden, Plaintiff stated he was told that inmates were educated about how to select foods appropriate for their medical conditions. Because of the lack of diabetes-friendly food, Plaintiff claimed he suffered from high blood sugar levels, the treatment of which caused him to experience loss of diabetic control and severe destructive episodes of diabetic hypoglycemia and hyperglycemia.

Plaintiff originally brought multiple constitutional claims against numerous Prison officials in the District Court for the District of Columbia. The D.C. District Court dismissed most of these claims against officials and transferred the remaining claims to the District Court for the Eastern District of North Carolina. Cross-motions for summary judgment followed and the district court denied Plaintiff’s motion for summary judgment and granted summary judgment to the defendants on each of Plaintiff’s claims. This appeal only concerns three claims dismissed on summary judgment, each arising under the Eighth Amendment against Dr. Phillip, Administrator McClintock, and Warden Stansberry. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate, “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Eighth Amendment and Denial of Medical Care

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” In Helling v. McKinney, the Supreme Court determined that this amendment pertains to not only physically cruel punishment, but that it also includes “the treatment a prisoner receives in prison and the conditions under which he is confined.” The Supreme Court further defined this right in Farmer v. Brennan, in which the court established that prison officials are required to provide humane conditions of confinement and that inmates receive adequate food, clothing, shelter, and medical care.

To succeed on this constitutional claim pertaining to denial of medical treatment, a plaintiff must demonstrate a prison official’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” In Farmer, the Supreme Court crafted a 2-pronged test that plaintiffs must fulfill to prove an Eighth Amendment violation. First, plaintiffs must demonstrate that the alleged deprivation was, objectively, “sufficiently serious.” In order to be considered sufficiently serious, the medical need being deprived should be either diagnosed by a physician or so obvious that even a layperson would realize medical attention is necessary. Second, plaintiffs must show that, subjectively, prison officials acted with a “sufficiently culpable state of mind,” in that the official knew of and disregarded an excessive risk to the inmate’s health. This prong requires proof of the official’s actual knowledge of both the inmate’s serious medical condition and excessive risk posed by the official’s action or inaction.

Plaintiff’s Eighth Amendment Claims against Defendants

Plaintiff claims that Dr. Phillip violated his Eighth Amendment right when he refused to give Plaintiff insulin to combat his high blood sugar. The Fourth Circuit determined that Plaintiff demonstrated a genuine dispute of material fact as to both Farmer’s objective and subjective prongs. First, Plaintiff sufficiently proved he suffered from a serious medical condition, insulin-dependent diabetes. The issue of fact concerns whether the serious medical condition of diabetes actually led to the more serious kidney and eyesight problems. Moreover, Dr. Phillip actually treated Plaintiff for his diabetes and it is obvious to even a layperson that insulin-dependent diabetics require insulin injections. In terms of the second subjective prong, Plaintiff adequately demonstrated that not only did Dr. Phillip know about his medical condition, but that the doctor was fully aware of the potential ramifications of mistreatment of the disease. The Fourth Circuit decided that the combination of these facts was enough for Plaintiff’s claim against Dr. Phillip to survive summary judgment.

In terms of Plaintiff’s August 24 medical emergency, he again established genuine issues of material fact as to both Farmer prongs. In terms of the objective prong, Plaintiff’s evidence establishes that there is genuine dispute as to whether as to whether the denial of medical attention during this emergency resulted in serious injury or a substantial risk of serious injury. Subjectively, Plaintiff proved that it was likely both Dr. Phillip and Administrator McClintock were aware of his need for medical assistance. Their failure to take action could give rise to an inference of deliberate indifference, and therefore should survive summary judgment and be presented to a jury.

Despite the aforementioned actions by prison officials, the Fourth Circuit decided the district court correctly determined that Warden Stansberry did not violate Plaintiff’s Eighth Amendment rights. Objectively, Plaintiff failed to raise a genuine dispute of material fact regarding whether, in this case, the lack of a diabetic diet was a sufficiently serious deprivation to be actionable under the Eighth Amendment. Subjectively, the Warden provided adequate evidence to prove that on at least two occasions, inmates were educated on how to choose foods appropriate for their medical conditions. Moreover, several sister circuits have decided that as long as a prison provides some foods that are appropriate for different medical conditions, they have fulfilled their constitutional duties under the Eighth Amendment. Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. Therefore, the district court was correct in awarding Warden Stansberry summary judgment.

Also, the Fourth Circuit determined that Defendants in this case were not protected by qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This is because there is sufficient evidence that Plaintiff’s Eighth Amendment right to adequate medical care and freedom from officials’ deliberate indifference to his medical needs was violated. This right was clearly established, so Dr. Phillip and Administrator McClintock are not entitled to qualified immunity.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Warden Stansberry and reversed the grant of summary judgment to both Dr. Phillip and Administrator McClintock.

Tags:
24Sep

Fourth Circuit Affirms Denial of Correction Officers’ Motion for Summary Judgment in Excessive Force Case

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms Denial of Correction Officers’ Motion for Summary Judgment in Excessive Force Case

By Whitney Pakalka

On May 19, 2015, The Fourth Circuit issued a published opinion in the civil case of Ussery v. Mansfield, 786 F.3d 332. Sammy Ussery filed suit under 42 U.S.C. § 1983 alleging that officers at the North Carolina penal institution where he was incarcerated caused him serious injuries by their use of excessive force. The Fourth Circuit affirmed the district court’s denial of the officers’ motion for summary judgment.

  Ussery Claimed Correctional Officers Used Excessive Force

Sammy Ussery was an inmate at a correctional facility where he was forcibly extracted from his cell by correctional officers on July 9, 2008. Sergeant David Mansfield ordered Ussery to exit his cell so that it could be searched, but Ussery refused because officers repeatedly searched his cell in previous days without discovering any contraband. Sgt. Mansfield then gathered an extraction team of officers, including Officers James Dunlow and Timothy Ruffin, named defendants.

Although prison policy mandates that extractions be videotaped, Sgt. Mansfield stood in front of the video camera during most of the extraction, obstructing the view of Userry’s cell. What can be seen on the video, however, comports with some of Ussery’s account that the officers “beat him repeatedly in the head and face with batons, punches and kicks” and that Sgt. Mansfield “kicked and stomped” on him. Ussery was eventually handcuffed and carried out of his cell, and he was later taken to the hospital for emergency treatment of his injuries.

Several months later, the State Bureau of Investigation conducted an inquiry at the request of the state Department of Corrections to determine whether excessive force was used. However, because the video of Userry’s cell was obstructed by Sgt. Mansfield, the SBI was not able to reach a definitive conclusion.

The District Court Denied One of Defendants’ Motion for Summary Judgment

Ussery filed an action pro se under 42 U.S.C. § 1983 alleging that the officers violated the Eighth Amendment by use of excessive force and for failure-to-protect. Ussery contended that as a result of the force used, he suffered hearing loss, neck pain, loss of vision in one eye, and other injuries that caused him ongoing “physical and emotional pain and suffering, and disability.”

The officers denied punching or kicking Ussery, and argued that he only incurred de minimis injuries. The officers submitted an affidavit of a doctor employed by the Division of Prisons who said that Ussery only had minor injuries with no lasting effects. The doctor based his medical opinion on prison records without examining Ussery. The officers requested summary judgment based on an entitlement to qualified immunity. The district court granted the motion as to the failure-to-protect claim, but denied the motion as to the excessive force claim.

Qualified Immunity from Civil Damages for Excessive Use of Force

In cases where excessive force is claimed, the Fourth Circuit previously applied the standard from Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). The court in Norman held that a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis, unles he can show that the use of force was “repugnant to the conscience of mankind.” However, Norman was abrogated by the Supreme Court in Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010), holding that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”

The Fourth Circuit still applies the standard set out in Norman for cases where the alleged use of excessive force occurred before Wilkins was decided. Thus, because the extraction occurred in 2008, Ussery will have to establish (1) that he sustained more than de minimis injuries, or (2) that the use of force was “of a sort repugnant to the conscience of mankind and thus expressly outside the de minimis force exception.” Norman, 25 F.3d at 1263, n.4.

Jurisdiction for an Appeal from Denial of a Claim of Qualified Immunity

When a district court denies a claim of qualified immunity, it is an appealable final decision under 28 U.S.C. § 1291, “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court further explained that where a district court denies summary judgment to a defendant seeking qualified immunity entirely on the basis of evidentiary sufficiency, no basis for an interlocutory appeal exists. Johnson v. Jones, 515 U.S. 394 (1995).

The district court, in its denial of summary judgment, found that a question of fact existed not only in regard to the extent of Ussery’s injuries, but also as to whether the circumstances were sufficient to show force “repugnant to the conscience of mankind,” thus satisfying the standard in Norman. Because the denial of summary judgment was based on the sufficiency of the evidence, the Fourth Circuit found that it was not permitted to review the lower court’s assessment of the factual evidence.

However, the Fourth Circuit inferred that the district court concluded that Ussery could establish a violation of law under Norman. Finding that this was a “purely legal conclusion,” the Court went on to consider whether the district court properly denied Defendant’s motion for summary judgment.

The officers argued that Ussery only suffered de minimis injuries and could not satisfy the Norman standard. The Fourth Circuit disagreed noting that whether a plaintiff’s injuries satisfy the standard depends on the facts of the case. The Court noted that the injuries Ussery claims may have long-term effects and were arguably more severe than injuries previously held to be sufficient for an excessive force claim. Additionally, the Department of Corrections conducted its own investigation, suggesting that the force used could have resulted in sufficiently serious injuries to meet the standard of Norman.

The Fourth Circuit Affirmed the District Court’s Judgment

Interpreting the facts in the light most favorable to Ussery, the Fourth Circuit affirmed the district court’s denial of Defendants’ motion for summary judgment requested on the basis of qualified immunity.

Tags:
24Oct

Fourth Circuit Affirms that Subjective Recklessness is Required for an Eighth Amendment Claim

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms that Subjective Recklessness is Required for an Eighth Amendment Claim

By: David Darr

Today, in Bradford v. Clem, the Fourth Circuit affirmed the District Court for the District of Maryland’s decision to order summary judgment in favor of the defendants on the plaintiff’s Eighth Amendment claims.

Eighth Amendment Violation?

At issue in this case was whether an Eighth Amendment claim for “unnecessary and wanton infliction of pain” can proceed when a prison doctor does not renew the plaintiff’s pain medication prescriptions for two weeks due to changes in the prison medical staff.

Defendant Not Renewing Prescriptions

The plaintiff, Steven Karl Edward Bradford, suffered from severe damage to his left intraorbital nerve and, as a result, developed severe chronic pain on the left side of his face, migraines, and double vision. This greatly impaired Bradford’s abilities to do normal activities.  In 2010, after some unsuccessful attempts to treat these symptoms, Bradford was put on regimen of Tramadol, Depakote, and Lyrica. This regimen proved to be relatively successful and Bradford was able to engage in regular activities for two years on this regimen. Bradford had to be reevaluated every ninety days for prescription renewals. In 2012, the prison that Bradford was incarcerated in a prison that switched health care providers and, as a result, the doctor who regularly treated Bradford no longer worked at the prison. Bradford was treated by a physician’s assistant the next time he went in for an evaluation. One of the defendants, Physician’s Assistant Oltman, only renewed Bradford’s Lyrica prescription because the other two drugs were narcotics and not in Oltman’s power to renew. As a result, Bradford ran out of Depakote and Tramadol. Over a two week period without the drugs, Bradford wrote the other defendant, Dr. Jason Clem, to renew his other two prescriptions because he was in intense pain. Bradford claimed these letters were ignored. After filing a grievance with the warden, Bradford’s prescriptions were renewed. He was without them for about two weeks.

Bradford brought an action a violation of his Eighth Amendment protection against “unnecessary and wanton infliction of pain” in the District of Maryland. The defendants filed for summary judgment and the District of Maryland granted summary judgment in favor of the defendants in this opinion. Bradford then appealed the decision.

Need Subjective Recklessness for an Eighth Amendment Violation

The District Court, whose reasoning the Fourth Circuit adopted, ruled that there must be some intent or subjective recklessness to inflict pain for an Eighth Amendment violation and that Bradford’s claim showed no such recklessness.

No Eighth Amendment Violation Found by the District Court

The Fourth Circuit used the District Court’s reasoning in affirming this case. An Eight Amendment claim for “unnecessary and wanton infliction of pain” for denial of medical care requires an action or inaction by the defendants that amounts to deliberate indifference to a serious medical need. Objectively, the medical condition must be “serious” and, subjectively, there must be recklessness. Subjective recklessness requires knowledge of the risk and that the conduct is inappropriate in relation to the risk.  The District Court found ample evidence that Bradford’s condition was objectively “serious.” Thus, if Bradford provided evidence of subjective recklessness his claim would prevail. However, the District Court found no evidence of an intent to cause harm to Bradford or that Bradford was intentionally deprived his medicine. The speed of the response to Bradford’s letters was demonstrative of this lack of intent. The District Court also found that the fact that this incident occurred as the prison was changing health care providers showed a potential alternative reason for this error. Because of this lack of evidence of intent, there was no subjective recklessness and therefore not enough to establish an Eighth Amendment claim. While the District Court found that the Bradford’s pain could have easily been avoided, it ultimately grated the defendants’ motion for summary judgment.

Fourth Circuit Finds No Reversible Error

In affirming the case, the Fourth Circuit found that the District Court made no reversible error in its decision.

Tags: