Suing from behind bars.

Photographer: Peter Macdiarmid/Getty Images

Prisoners Deserve the Benefit of the Doubt

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Monday the Supreme Court decided two cases involving prisoner lawsuits. It blocked one but allowed room for a possible second try. It allowed the other suit to go forward on somewhat complicated statutory grounds. The technical details matter less than the bottom line, which is that the court wants it to be very hard for prisoners to sue, but not totally impossible.

On the surface, this seems sensible: The federal courts can’t micromanage the entirety of the prison experience, and judicial intervention should be reserved for extreme cases of rights-violation. On another level, it’s disturbing to think that the courts are participating in a project to make our system of incarceration look just, when in fact it’s deeply troubled.

The first case arose from an allegation by a Maryland prisoner, Shaidon Blake, that while he was being transferred between cells, one corrections officer held him while another punched him repeatedly. Blake reported the incident to a senior corrections officer, who thought the incident was serious enough to refer the whole thing to the state prison system’s Internal Investigative Unit. The investigations unit found that the guard who did the punching had used excessive force, and the guard resigned to avoid being fired.

Blake then sued both officers for damages in federal court, and a jury awarded him $50,000 in damages against the puncher. The other officer, however, had a better lawyer, who raised a clever defense. The argument was that Blake’s suit could not go forward because he had not gone through all of the administrative remedies available to him in the prison before bringing the suit.

The requirement of exhausting remedies before bringing a lawsuit is standard in administrative law. It’s formalized for prisoner suits under the Prison Litigation Reform Act. The correction officer’s argument was that before Blake could sue, he needed to go to the warden, and then seek an appeal if denied satisfaction, as was standard under the prison’s administrative rules.

Under the letter of the law, this argument was probably right. But Blake responded, reasonably enough, that he thought the investigation by the prison system’s internal affairs unit was a substitute for the ordinary administrative procedure.

A federal district court dismissed Blake’s suit, but the U.S. Court of Appeals for the Fourth Circuit agreed with Blake. It created a special exception to the exhaustion requirement for circumstances where non-compliance with the ordinary process was justified. The Fourth Circuit was trying to apply the spirit of the law instead of its letter and give Blake justice. It was recognizing that no rule should be so absolute as to thwart common sense.

In an opinion for a unanimous court, Justice Elena Kagan struck down the Fourth Circuit’s special circumstances exception -- because it isn’t mentioned in the text of the law. In an attempt to temper the harshness of the judgment, however, she pointed out that the prisoner litigation act doesn’t require exhaustion of administrative remedies when those remedies are “unavailable.” And she said it was at least conceivable that once the internal investigative process began, it would’ve been impossible for the ordinary administrative process to go forward.

The second case involved an inmate who alleged that prison officials negligently allowed him to be beaten by another inmate. This prisoner, Walter Himmelreich, brought suit against the federal government under the Federal Tort Claims Act. That suit was dismissed under an exception that says you can’t sue a federal official for actions taken within his or her exercise of discretionary functions. Himmelreich then filed a suit for a constitutional violation against the individual prison officials, which would not be subject to the same exception.

But a federal district court rejected the second suit, too. A different provision of the tort claims act says that once you’ve sued the government and lost, you can’t then go and sue individual federal officials on the same issue.

The Supreme Court held unanimously for Himmelreich on technical grounds. It said that since his first lawsuit fell within an exception to the tort claims act, it wasn’t dismissed under the act, and therefore he wasn’t barred from bringing a second suit against the officials. If that holding makes sense to you, congratulations -- either you’re already a lawyer by training or else you’re a natural-born lawyer. If not, don’t worry about it; lawyers are a dime a dozen and you can always hire one of us when necessary.

The technicalities don’t much matter, because like the first case, the second represented something bigger than its holding. In both, the court was saying that it shouldn’t be too easy for prisoners to sue when bad things happen to them, but it shouldn’t be absolutely impossible, either.

The Goldilocks “just right” model always looks appealing on the surface. But applied to prisoner litigation, it should give us pause.

Locked away and denied access to the outside world in a range of different ways, prisoners are deeply vulnerable to abuse both by guards and fellow inmates. Not only does the U.S. incarcerate a vastly higher proportion of its population than many other countries; the conditions of detention are on the whole much worse in the U.S. than in other well-off nations.

The judiciary enjoys high legitimacy as an institution of government. Given that fact, the courts should avoid legitimating the prison system by interpreting the law to allow only occasional intervention when the facts are especially bad. The court should take a broader view, and give the benefit of the doubt to prisoners who see the courts as the only institution capable of protecting them from the bad things that happen in prisons.

  1. In practice, Kagan said, it’s unclear how it works in Maryland prisons once the investigation has begun, and the court remanded to the lower court with instructions to figure it out.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net