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Constitution

On February 4, 1960, two Los Angeles police officers noticed "scar tissue and discoloration on the inside" of Lawrence Robinson’s right arm, and "what appeared to be numerous needle marks and a scab which was approximately three inches below the crook of the elbow.” Officers Brown and Lindquist didn’t witness Robinson committing a criminal act; they simply noticed his arm and engaged with him. The officers said Robinson admitted to using drugs in the past so they arrested him for the crime of “being addicted to the use of drugs”; at the time, Section 11721 of the California Health and Safety Code criminalized simply being an addict.

Robinson denied any admission of narcotics use at trial, yet a jury convicted him of the misdemeanor and the court sentenced him to 90 days in the Los Angeles County Jail and two years of probation.

Robinson’s appeal of his conviction ended Section 11721. His bid to overturn the judgment against him reached the Supreme Court of the United States where the Court invalidated the law by deeming it unconstitutional; by punishing a person for a medical condition, the statute violated the Eighth Amendment prohibition against cruel and unusual punishment. Sadly Lawrence Robinson died of a “probable overdose” in a Los Angeles alley on August 5, 1961, according to the Los Angeles Times.

Our highest court was much more enlightened 62 years ago. But the Robinson decision was important for another reason besides medicalizing addiction: it extended Eighth Amendment protections to those held in state and municipal custody; the framers of the Bill of Rights had anticipated the Amendment’s applying only to the way the federal government treated people it confined.
At the time, 218,830 people were incarcerated in state and federal prisons on felony convictions. The Robinson decision should have been a boon for all of them and the millions who would come after. But it wasn’t.

Since the decision, here’s what doesn’t get Eighth Amendment protection from the courts: subjecting an inmate to needless exploratory surgery to find contraband in his rectum that was never there, or denying surgery to a man who had headphone mesh pushed further into his ear, against his eardrum, by a correctional nurse. Elbow macaroni with maggots doesn’t cut it for “cruel and unusual.” Nor do poisonous metals like radium and lead in the drinking water. Even causing pain during capital punishment doesn’t violate the Eighth Amendment in this country.

While no court has even contemplated Greg Corley’s case — after sheriffs dislodged a stent by handcuffing him behind his back and the Denton County Jail withheld medical treatment for months, until Corley’s arm was beyond remedy — the chances are low that any court would decide that compromising the blood supply to his arm was cruel or unusual punishment.

The case of Greg Corley, who was denied care to the point that amputation was the only way to save his life, suggests the Eighth Amendment isn’t sufficient to protect inmates’ overall health, much less their emergency medical needs. While Corley never made an Eighth Amendment claim about his arm — that would happen either through a lawsuit alleging that jail officials violated his civil rights or through a petition for a writ of habeas corpus that claims his incarceration was itself illegal — he’d probably lose it.

The Eighth Amendment covers only people within a system of punishment, not the ones without. Free individuals don’t need constitutional coverage; regulatory law protects them. But Aaron Littman, assistant professor of law and deputy director of the COVID Behind Bars Data Project at the UCLA School of Law, noted in a recent Yale Law Journal article titled “Free-World Law Behind Bars,” regulation “recedes” in correctional spaces.

In fact, regulation recedes so much that many times, the doctors who treat prisoners aren’t licensed to do so, with instances of unlicensed doctors providing care to incarcerated populations in Kansas and Louisiana. In 2018, the National Commission on Correctional Healthcare issued standards for healthcare providers in corrections, and one of the standards is that they actually be licensed; nevertheless, licensure of a prison doctor cannot be assumed.

When I go to a hospital, I know that my constitutional rights don't have anything to do with whether I'm treated by a licensed physician in accordance with certain standards. It's not a constitutional question. It's a regulatory question. And that same thing needs to be true in a prison," said Littman said in a recent interview.

Marty Buchanan, the doctor assigned to the detention center that held Corley, is licensed to practice medicine in the State of Texas, without any reported instances of malpractice or misconduct. But if ignoring a gangrenous limb like Buchanan did and offering the patient a benzodiazepine tablet rather than an examination is the standard of care provided by a doctor with an unblemished record, expecting better care from those who have lost their licenses seems overly optimistic.

Other kinds of critical public institutions like hospitals and schools are the subject of very significant amounts of regulation because we think, ‘Oh well, what they do is important. It may affect whether somebody lives or dies.’ And yet people don't actually have voluntary choice about whether they're in them. So it's really important that we make sure that they're meeting basic standards, that they're operating in ways that are keeping people safe and healthy,” Littman said.

Correctional healthcare affects whether or not someone dies; Greg Corley still lives in fear of an unexpected blood clot until his arm is removed. And no one who’s in custody has any choice about their care which only heightens the government’s duty toward its ward
But somehow, over 62 years of the Eighth Amendment applying to anyone held in custody, no one, not even physicians treating inmates, has effectively taken up the cause, at least not effectively, to raise the standard of care for incarcerated people.
Littman says the reason for this is that advocacy for incarcerated people has focused on constitutional law for the most part.

“There are things that [constitutional claims have] failed to do, [are] increasingly failing to do in addressing conditions in prisons and jails. I think it's time, not to pivot away from constitutional litigation, but add to the toolkit. Different kinds of regulatory advocacy to try to say, ‘no, no, incarcerated people are members of our community just like anyone else [are needed]. And actually, they need to be protected by the same health and safety and wellness systems,’” he said.

Even while he languished in Texas county jails, Greg Corley was a member of the community and he deserved the same care as anyone who walked into any Texas hospital. He didn’t get it, at least not in time. By itself, his case is a clarion call for more regulation — and perhaps less United States Constitution — behind bars. Incarceration in this country has become so bad that even our founding document can’t protect the vulnerable anymore.


Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.


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Donald Trump

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Today we begin with a quiz. What is the most important responsibility of the president of the United States?

a. Protecting our security interests around the world.

b. Promoting a healthy economy.

c. Combating climate change and other environmental problems.

d. Avoiding nuclear war.

e. Fostering racial equity.

The answer is: none of the above. All of these obligations are important, and any president who neglects them deserves criticism. But they are ultimately secondary matters.

The most important obligation of the president is enshrined in the oath of office: to "preserve, protect and defend the Constitution of the United States." Aside from the simple duty to "faithfully execute" the office, that is the only responsibility specified in the oath. Nothing else a president does matters so much.


Donald Trump is remembered for the brazen lie he perpetrated on his first day in office, when his press secretary told reporters that his inauguration crowd was the biggest ever. But that wasn't his first lie as president. His first came in his recital of the oath, when he swore to do something he had no intention of doing: that stuff about the Constitution.

Many presidents have taken actions that press the limits of their constitutional authority. Thomas Jefferson secured the Louisiana Purchase even though the Constitution gave him no power to acquire territory. Several have conducted wars without getting a declaration of war from Congress, as the framers intended. But no president has exhibited such contempt for the Constitution as Trump.

As the House committee investigating the January 6 attack has documented in exhaustive detail, he actively encouraged an armed mob to storm the Capitol, stop the certification of Joe Biden's election victory and provide the second term the voters had denied him.

The Constitution provides a mechanism for choosing a president. To Trump, however, it meant nothing because it didn't keep him in power. He had every right to go to court to contest the results in states he lost, but those lawsuits were an all-encompassing failure. Even judges appointed by Trump rejected his claims, because they had no basis in fact.

On July 14, a group of distinguished Republican lawyers and former judges issued a 72-page report that examined each of the Trump campaign's allegations of fraud and reached this conclusion: "There is absolutely no evidence of fraud in the 2020 Presidential Election on the magnitude necessary to shift the result in any state, let alone the nation as a whole. In fact, there was no fraud that changed the outcome in even a single precinct" (my emphasis).

But Trump didn't let facts deter him. He pressured election officials to alter their vote counts. He promoted the acceptance of fake electors who would override their state results. He urged Acting Deputy Attorney General Richard Donoghue to "say the election was corrupt and leave the rest to me and Republican congressmen." He demanded that Vice President Mike Pence block the election certification.

When those efforts proved unavailing, he urged the people attending his rally on the Ellipse on Jan. 6 — including some he knew to be armed — to go to the Capitol and "fight like hell." He told them he would join them, and only the firm refusal of the Secret Service kept him away.

One line in his speech that has gotten little attention raised the prospect that Biden would become president. "We're just not going to let that happen," Trump vowed. His followers, some of them chanting, "Hang Mike Pence," did their best to vindicate that claim.

As the committee and its witnesses showed in Thursday's hearing, Trump had plenty of time to put a stop to the assault. But time was not the problem. The problem was that he didn't want it to stop. He wanted it to continue and succeed.

So he watched TV coverage, spurning aides, friends, and family members who pleaded with him to make a public statement telling the Capitol rioters to cease and desist. For 187 minutes, he sat idly as the mob rampaged through the seat of American democracy.

The lives of Pence, his family, Capitol police Secret Service agents, members of Congress and congressional staff were in dire peril. But Trump wouldn't lift a finger to protect them.

That day, he not only declined to preserve, protect and defend the Constitution of the United States; he led, approved and facilitated a ferocious attempt to cast it aside. And he showed no remorse afterward.

Other presidencies have been successes or failures. Trump's was something unprecedented: a profound betrayal.

Reprinted with permission from Creators.