October 19, 2010

"It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick 'Splitless, factbound, I recommend DENY.'"

Orin Kerr puzzles over Justice Sotomayor's "rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order.

The opinion begins:
Petitioner Anthony Pitre, a Louisiana state prisoner, stopped taking his HIV medication to protest his transfer to a prison facility. He alleges that respondents at the facility punished him for this decision by subjecting him to hard labor in 100-degree heat. According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious to rush him to an emergency room.
This is the empathy we heard about, is it not?
The Magistrate Judge concluded that Pitre had been “‘hoist by his own petard’”...
And that's not empathy.

41 comments:

Kirby Olson said...

Tough love.

EnigmatiCore said...

Prisoners get tasked with labor.

A prisoner decides "hey, I can avoid it by not taking my medications, since then the labor will make me really sick."

If empathetic judges will rule "the prisoner has constitutional right" to this, then the last place I want an empathetic person to be is on the bench.

Big Mike said...

This is a situation where empathy is absolutely not called for.

rhhardin said...

Telepathy is probably involved.

America's Politico said...

The Justice is the best appointment from the President. It shows his class. Just compare his appointment to those by Presidents before him.

On November 2, voters from across the nation will REJECT THE GOP, totally and with passion.

Once again, my polling shows gains by Democrats in both the House (224+) and the Senate (54+).

former law student said...

Her dissent seems quite cogent; further, Justice Sotomayor spots the CivPro issue the others ignore.

The prisoner knows that refusing to take his medicine will kill him. Does that give the prison a license to harm him in other ways? Can they starve him, or beat him?

traditionalguy said...

"What we have here is a failure to communicate" says the chain Gang Boss. Wait a minute, says the wise Latina woman, lets look into this case about punishing a prisoner for not becoming a beast of burden for Louisiana's benefit. The State of Louisiana captured him so he is their property, says the State of Louisiana. Good move Sonia. This Latino was assigned to handle police brutality cases as a young lawyer, and she seems to have picked up wisdom from that assignment.

ndspinelli said...

Most men start a sentence regarding issues w/ "I think..." Most women begin w/ "I feel..." It's not much more complicated than that.

Sixty Grit said...

I am still sticking with Asia as the original home of America's Asshole - he really has no grasp of grammar or syntax. The Tokyo Rose force is strong in this one.

ndspinelli said...

"What we have here, is a failure to communicate."

Synova said...

It would seem to me that refusing to take your medication is a positive statement of health.

No?

1jpb said...

"A ruling in plaintiff’s favor herein would encourage him to continue on this self destructive path."

So, are they going to force feed him the meds? If things just continue as they had been, w/ this guy doing his hard labor w/o his med, it seems like ruling against the plaintiff will only accelerate the guy's trajectory on his self destructive path.

Not that he shouldn't have the right to choose this path and the implications that result, but I wouldn't argue that letting his current situation proceed will slow his destruction (unless he's force fed the meds), quite the opposite.

former law student said...

It would seem to me that refusing to take your medication is a positive statement of health.

No?


No more than a hunger striker's refusing to eat indicates he think he needs to lose a few pounds.

Marcia said...

ndspinelli said...
"Most men start a sentence regarding issues w/ 'I think...' Most women begin w/ 'I feel...' It's not much more complicated than that."

I think (see what I did there?) it is more complicated than that. I don't say "I feel" unless the next word is an adjective (as in "I feel great" or "I feel sick").

Then again, I'm a lawyer. Althouse is also a lawyer, and I would wager that she doesn't use "feel" in place of "think."

Justice Sotomayor is a lawyer too. And the word "feel" does not appear in her dissent.

I know you said "most women." But in some ways most women lawyers aren't like most other women.

Dust Bunny Queen said...

I know you said "most women." But in some ways most women lawyers aren't like most other women.

I think that the same would hold true for female financial planners/advisors.

:-D

traditionalguy said...

Marcia...I agree with your general analysis, But does Sotomayor embody a female empathy for the suffering prisoner here that adds another Point of View that a male Justice would never see? And why is that a bad thing?

John Burgess said...

America's Politico: Care to put some money where your mouth is? Say $100?

Define the terms of what constitutes a loss for you and we'll talk about it. How about 'If the Dems lose the House' as a marker for losing?

[Today's WV brought to you by Minnesota! = edina]

Synova said...

Well, I'd think that refusing to eat is a positive statement of "I don't need food."

That it's not true is a separate issue.

I have no sympathy for hunger strikers either. The idea is to die horribly in prison to show what sorts of monsters locked you up.

And that seems to be the idea of refusing to take your medicine to "protest" as well. "Look at these monsters! I'm sick! I'm sick!"

Except that medicine is provided. Just like food is provided. No one "hunger strikes" in prisons that are hell holes. They only hunger strike in prisons where they can't show actual mistreatment.

We, as a society, LET people manipulate us this way and it's completely dysfunctional, enabling, and in all ways simply *false*.

If this fellow was on medication because he was ill and working in the heat with all of the other prisoners made him sick, he'd have a legitimate complaint about his situation and inadequate medical care.

Since he's refusing to take his medication, any illness from working in the heat has to be assumed to be self-inflicted.

AST said...

That's not the wise Latina either.

Reminds me of an intriguing book linked by HotAir:

http://seattletimes.nwsource.com/html/othersideofmercy/

The specific report linked was about the guy that Huckabee granted clemency to.

Robert Cook said...

"It would seem to me that refusing to take your medication is a positive statement of health.

No?"


No.

Marcia said...

traditionalguy said...
"Marcia...I agree with your general analysis, But does Sotomayor embody a female empathy for the suffering prisoner here that adds another Point of View that a male Justice would never see? And why is that a bad thing?"

Perhaps she does, but you can't tell it from this dissent (which I read). It is equally consistent with someone who is a stickler for the rules of civil procedure.

traditionalguy said...

So what is the preferred position on Southern Chain Gangs in 100f heat working enslaved prisoners to near death, but medicating them enough to keep them alive for one more day's work? Hmmm. Maybe the slave overseer guard forces have a work quota? Do they still rent them out to private land owners? And just what was Meade's dream again? So many questions that it seems only a Latino Woman would waste everybody's time asking.

Synova said...

Okay then... an affirmative statement of health... a action affirming health... a decision stating the absence of any need for medicine...

I bet the guys would get really sick if they didn't drink water, out there in the sun. Sounds like an excellent plan. Don't drink water, get heat prostration, get hauled to the emergency room and hooked up to an IV, claim it's the State's fault.

How is refusing to take your meds different from not drinking water?

EDH said...

"I'm Carr, the floor walker..."

Needless to say, any prisoner who doesn't take his medicine should "spend a night in the box."

Them clothes got laundry numbers on them. You remember your number and always wear the ones that has your number. Any man forgets his number spends a night in the box. These here spoons you keep with you. Any man loses his spoon spends a night in the box. There's no playing grab-ass or fighting in the building. You got a grudge against another man, you fight him Saturday afternoon. Any man playing grab-ass or fighting in the building spends a night in the box. First bell's at five minutes of eight when you will get in your bunk. Last bell is at eight. Any man not in his bunk at eight spends the night in the box. There is no smoking in the prone position in bed. To smoke you must have both legs over the side of your bunk. Any man caught smoking in the prone position in bed... spends a night in the box. You get two sheets. Every Saturday, you put the clean sheet on the top... the top sheet on the bottom... and the bottom sheet you turn in to the laundry boy. Any man turns in the wrong sheet spends a night in the box. No one'll sit in the bunks with dirty pants on. Any man with dirty pants on sitting on the bunks spends a night in the box. Any man don't bring back his empty pop bottle spends a night in the box. Any man loud talking spends a night in the box. You got questions, you come to me. I'm Carr, the floor walker. I'm responsible for order in here. Any man don't keep order spends a night in...

Synova said...

I don't think it's obvious that there was "punishment" involved. Perhaps it should have been investigated to be sure, maybe it was, but the guy sounds like a whiner, so I'm assuming he's a whiner.

Honest to God... if you don't want to be treated like the other prisoners, it might be a good idea to avoid the life of crime part.

Robert Cook said...

"Well, I'd think that refusing to eat is a positive statement of 'I don't need food.'"

No.

"I have no sympathy for hunger strikers either. The idea is to die horribly in prison to show what sorts of monsters locked you up."

No...it's to focus the attention of the larger society on the barbaric conditions in which hunger striking prisoners must exist, and thereby, hopefully, to shame or embarrass the governing authorities into reforming their practices. It's also a means for a totally dehumanized creature--a prisoner who has been utterly devalued of his humanity--to assert himself as having some personal volition still available to him.

The effectiveness of hunger striking as a shaming device is demonstrated by the sometimes violent force feeding authorities will resort to inflicting on hunger striking prisoners.

"No one 'hunger strikes' in prisons that are hell holes. They only hunger strike in prisons where they can't show actual mistreatment."

Astonishing. And...no.

Hunger strikes in prisons are often borne of desperation or anger at the wretchedness of prevailing conditions and the lack of any other means to seek redress, and are not entered into lightly. And, frankly, "actual mistreatment" of prisoners is a signal feature of most prisons.

This is not to suggest that all prisoners are harmless lambs or that many of them should not be incarcerated--many of them certainly should be, although many nonviolent prisoners often should not be--but simply to point out the reality that prisons are hellholes. This is also not to deny that disruptive prisoners may bring reprisals on themselves through their own provocations of prison authorities. However, the Stanford Prison experiment demonstrated the power dynamic that swiftly develops in circumstances where humans are imprisoned by other humans, where the jailers will often inflict disproportionate punishment on the jailed for perceived or actual provocations or lack of obedience. (Heck, we see this in the contempt and suspicion which many police officers hold toward the citizens whom they allegedly "serve.")

Freeman Hunt said...
This comment has been removed by the author.
traditionalguy said...

My last comment on this: after enslaved Africans were no longer everywhere to be bought, sold, or rented, the South found a new way to re-enslave a needed work force. We turned to arresting and sentencing of "vagrants" meaning blacks and whites passing through town with no social support system to demand real trial for their offenses. Our new roads needed building and the road crews were the Free Chain Gangs housed in Camps all around town. If a complaint for little or no food ( The Superintendent of Public Works usually got rich stealing the food monies for prisoners)caused an uprising at a Camp, then the Superintendent came in with his bull whip and the powerful authority from his determined mind to quell that riot. People have not really changed much. And all that I have written down here actually happened.

Marcia said...
This comment has been removed by the author.
Synova said...

Right, Cook.

That's why hunger strikers, and the first ones certainly who thought up the plan, were "political" prisoners who blew up people and got caught.

A truly barbaric government can not be shamed.

It. Doesn't. Work.

EnigmatiCore said...

"it's to focus the attention of the larger society on the barbaric conditions"

These heroic prisoners. Where would society be without them?

Mick said...

60% of her opinions that were appealed to the SCOTUS were overturned. What does that tell you? She is as qualified as I am.

former law student said...

60% of her opinions that were appealed to the SCOTUS were overturned. What does that tell you? She is as qualified as I am.

It tells me that, calling balls and strikes, Sotomayor was wrong less than 1% of the time. Do the math: Sotomayor heard 3000 cases, and wrote 380 majority opinions. The Supreme Court heard five of these, reversing her three times. The other 377 times her rulings were undisturbed.

How good are you at your job?

Robert Cook said...

"A truly barbaric government can not be shamed."

To the contrary, powerful dictator states clamp down on freedom of the press and of speech in part to insure no "discouraging words" about their self-declared paradises will be revealed to the outside world...it's why industrial accidents in such states are often kept quiet, to maintain the illusion that "all is well."

Tyrants are hypersensitive to any whispers that all is not well in their Potemkin societies and they carefully control their media to maintain the image of their society that they desire for the world to see.

Scott M said...

@Robert

I'm not so sure that "shame" is the operative that makes a tinpot crack down on freedom of the press. In order to have shame, you must have guilt. In order to have guilt, you must have crossed some moral line, whether internally or externally placed. I submit that most of the ironheel-style dictators I've ever studied were amoral and existed outside the realm of "shame". Their action more portend a protectionism for their own power rather than bely some innate fear of chastising criticism.

c3 said...

I'm no lawyer and I'm sure there's some legal theory/principle at work here but...

As a physician if you refuse your medicine that has demonstrated it effectiveness IN YOU and the later complain that "you're too sick to ____________________" I will little sympathy for your plight.

Not seeing the "obvious nature" of this situation is an example of why people (or at least some people) dislike lawyers.

former law student said...

As a physician if you refuse your medicine that has demonstrated it effectiveness IN YOU and the later complain that "you're too sick to ____________________" I will little sympathy for your plight.

He's not refusing it out of being slack or wilfully non-compliant. He's refusing it to make a point. Not taking his medicine is expressive conduct -- he can hardly expect the Koch brothers to run commercials on his behalf. I don't think even the dread Soros is chipping in to persuade the Department of Corrections to move him.

Is the prison punishing him for expressing his desire to be transferred? A prison is government, so the constitutional issues (1st and 14th amendments) are obvious.

So far Sotomayor seems uncommonly thoughtful.

Quasimodo said...

He's refusing it to make a point.

That is like a reader of this blog gouging an eye out because your comments are found there. That much stupid can't be cured and should not be given special rights, consideration or privileges.

traditionalguy said...

FLS...Thanks for your comment. As lawyers we find ourselves face to face with the abuses that powerful men impose on weak men. Pretending that a weak victim deserves his kicking while he is down never seemed as much a rational argument to me as it seemed to be a convenient way to ignore people. So if being an Ayn Rand disciple type of a libertarian means ignoring people in need for the benefit of the noble and innocent people that cannot be bothered, then count me out. There are very few really innocent people among us anyway.

Alice said...

The prisoner knows that refusing to take his medicine will kill him. Does that give the prison a license to harm him in other ways? Can they starve him, or beat him?
Buy cialis

piperaragon said...

i have joined your feed and look forward to seeking more of your post.

www.n8fan.net