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Why The Constitution Can't Protect Us From 'Cruel And Unusual' Punishment

Why The Constitution Can't Protect Us From 'Cruel And Unusual' Punishment

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.


That Alabama Prison Jailbreak May Be A Story Of Rape, Not Escape

That Alabama Prison Jailbreak May Be A Story Of Rape, Not Escape

Each day, updates reveal even more about the 11 day jailbreak involving Lauderdale County, Alabama Assistant Director of Corrections Vicky White and her incarcerated lover, Casey White. But today, after a short chase in Evansville, Indiana on May 9, Casey White is back in custody and Vicky White is deceased, the victim of a self-inflicted gunshot wound to the head.

This saga isn’t an escape story. It’s a rape story. And it’s far from over.

Even if Casey White consented to sexual contact with Vicky White in the Lauderdale County, Alabama Detention Center, those dalliances are statutory sexual assault under the Prison Rape Elimination Act or PREA, a federal law enacted in 2003 to impose zero tolerance policies in correctional settings when it came to sexual violence.

While no one has publicly detailed the physical connection between the two while Casey was incarcerated at the jail, the sheriff’s office knows that Vicky White perused sex toys and purchased lingerie at Sugar and Spice Adult Novelties in Florence, Alabama before driving her ward out of custody -- and that Casey White referred to her as his wife when they were caught by federal marshals. Even without a formal wedding ceremony, it’s not unreasonable to assume that the two partook in the activities of a common law marriage.

If Vicky and Casey’s only sexual connection happened on the road to Evansville, it’s still rape. Even escapees have Eighth Amendment rights, or at least so the Sixth Circuit Court of Appeals held more than 20 years ago. PREA is grounded in the Eighth Amendment’s protections against cruel and unusual punishment. In 1994, in the case of Farmer v. United States, the Supreme Court of the United States found that deliberate indifference to the risk of sexual violence posed to an inmate makes his confinement unconstitutional.

As long as Casey White enjoyed Eighth Amendment protections and Vicky White was employed by Lauderdale County — which she was until May 4, 2022 — intimate contact between them was a criminal act for her, but not for him. Of course, she had long since decided to leave her law-abiding life behind.

The Alabama courts have dissected the state’s escape statutes before. In 1984, the Alabama Court of Criminal Appeals held that the crime of escape from custody entailed a willful and deliberate choice to leave custody. How those statutes will intersect with PREA is the next inquiry since the federal law eradicated the legal concepts of consent and choice when it comes to romantic or sexual relationships between staff and inmates.

The statutory stripping of inmates of the capacity to consent to sexual activity entails a lack of capacity to agree to go along with whatever activities make that sex possible. If Casey White lacked the power to consent to sexual activity by virtue of being incarcerated, then he also lacked the power to refuse the orders that would place him in a position where Vicky White would have private access to him. That’s the law.

Experts think a PREA defense is possible. Anthony Gangi, former corrections officer/supervisor and author of Correctional Manipulation and host of the YouTube show “Tier Talk” doesn’t discount it: “... because of her position, he's not the one that violated policy. She did and technically would this even be considered escape because he didn't break through any walls? He didn't, you know, climb any fences, you know, he was literally driven out by a staff member.”

The attorney who represented White on the charges for which he’s currently sentenced, Limestone County, Alabama lawyer Dale Bryant, says he doesn’t think his client’s posture in the April 29 video of his exit from the jail suggests he was a willing participant.
”The planning of this escape was far too thorough and too far-thinking, and that is not Casey's MO," Bryant told Alabama Live.

Carol Moore, White’s mother, says he couldn’t have pulled this off. “I know that Casey wasn’t the mastermind of anything. She was the brains — we know that for sure,” Moore told the Daily Mail newspaper.

Even the head sheriff in the office that applied for the arrest warrant charging White with escape in the first degree said: “Casey White didn’t escape from the facility; he was basically just let out."

It’s not clear whether Casey has a new attorney yet or not. An email request for an interview to the attorney who represents White in the capital murder case, Jamy Poss, went unanswered.

Whomever White’s attorney may be, he or she will need to dispatch this escape charge quickly. The Alabama Court of Criminal Appeals has held, repeatedly, that escape from custody implies a consciousness of guilt of unresolved charges. Casey White stands accused of capital murder; his life depends on this argument.

Such a defense will require not just more investigation but also closer scrutiny of what we already know Vicky White did. She broke more than just the rule on having two staff members accompany Casey White outside of the jail.

She reportedly asked another staff member to prepare Casey for transport but it’s not clear whether this included the strip search or not; an inqurity sent to the Lauderdale County Detention Center’s public information officer to ascertain this fact remains unanswered. PREA prohibits cross-gender viewing, disallowing female guards from seeing naked male inmates.

Yet Lauderdale County Detention Center transportation policy — updated in 2021 to handle the risk posed by detainees like Casey White — requires that the transporting officer search the people they take out of the jail. If a guard can’t search an inmate, then they can’t or at least shouldn’t be transporting them.


There’s a reason for this, according to Gangi. “When you're handing over an inmate, you're responsible for an inmate, so you're responsible for the strip when you take the inmate. And then usually when you drop off the inmate, the receiving agency or the receiving individual, that responsibility will be dropped. But if I'm picking up the inmate, he's my inmate, I got to do the strip before I put him in my vehicle because it's my responsibility. I can't trust someone else's words. And [Vicky White] would not be in a position to [search Casey White]. That would be a PREA violation."

Vicky may have refused to search Casey to dodge that particular PREA violation, but she erred in not bringing along with them the deputy who actually watched Casey White bend, squat, and cough.

Inevitably, this investigation will pose questions to Casey White about whether he said or did something to his captor, complained to anyone, that Vicky White was doing things to him against his will, including taking him out of the jail where he was ordered to live.
But those questions misunderstand the power imbalance that required a law like PREA in the first place. He was the inmate and she the guard. He had no authority and questioning hers puts him in further jeopardy. Any inmate who’s been subject to an illegal order knows that bind; there’s nothing he could have done, really, without risking more harm.

That still leaves much of the general public wondering which direction this White-on-White crime goes. As a corrections insider, Gangi thinks Casey manipulated Vicky. Judging by comments on news reports, people aren’t united on who’s zooming who down in Lauderdale County. Some think it was Casey but others draw hard lines around Vicky’s authority as a guard, citing her power -- the same power that caused Congress to outlaw the type of relationship that motivated this entire mess.

It’s hard to swallow but the PREA predators are often women; in certain studies, they’re the majority of the perps. Twelve years ago, 62 percent of the claims of sexual abuse by staff were levied against female guards.

The crime that needs the most attention in the case of Alabama v. Casey Cole White is Vicky White’s. If she committed rape, then he didn’t really escape.

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.

Don’t Blame Bail Reform For Spike In Violent Crime

Don’t Blame Bail Reform For Spike In Violent Crime

The Fourth of July is an occasion for the reading of the Declaration of Independence. But a better project might be the reading of the Constitution, a document that many Americans revere without fully understanding.

Among this group are many police officers, even though they take an oath to uphold it and are greatly affected by it in the course of their duties. One provision that sometimes gets short shrift is the Eighth Amendment, which says, "Excessive bail shall not be required."

That provision rests on the longstanding right of criminal defendants to be granted bail except when no amount would ensure their appearance in court — notably in capital cases. But for others, the right to be released before trial is implicit in the amendment. Denying bail, after all, has exactly the same effect as imposing excessive bail.

Some states, recognizing this fundamental liberty, have enacted laws ending the use of cash bail. The reason is that requiring a money payment leaves huge numbers of defendants languishing in jail not because they have been proven guilty or are deemed dangerous but because they are poor. The vast majority of them will show up in court without it, and judges can require electronic monitoring to make sure they do.

But bail reform has coincided with a spike in violent crime across the country, and some cops have said this is no coincidence. New York Police Commissioner Dermot Shea decried his state's changes as a "challenge to public safety." When Illinois enacted a law this year abolishing cash bail, the head of the Chicago police union said it had "just handed the keys to the criminals."

The evidence for the charge is skimpy. Violent crime surged last year even in places that didn't reform bail laws, which suggests something else — such as the pandemic or the economic shutdown or both — was the real cause. And overall crime in the United States fell in the first half of 2020, according to the FBI — which is not what you would expect if hordes of unrepentant criminals were streaming out of the jails.

The opponents of bail reform miss some major points. Bail isn't supposed to guarantee that no one accused of a crime will commit crimes while awaiting trial. It's inherent in bail that some defendants will do exactly that. The only way to prevent it is to lock them all up before the government has proven they did anything wrong.

"This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction," the Supreme Court said in 1951. "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."

Cook County State's Attorney Kim Foxx understands this even if her detractors don't. In a videoconference Wednesday sponsored by the Illinois Justice Project, she noted that some people think defendants should be locked up even before being convicted.

"They missed the step in the middle, where we haven't actually gotten to a trial yet," she said pointedly. But "the presumption of innocence maintains with the accused until there's a finding of guilt."

The logic of those who oppose eliminating cash bail is that dangerous suspects shouldn't go free. But the only sure way to determine which ones are dangerous is to put them on trial. Besides, requiring monetary bonds doesn't keep the more dangerous defendants behind bars. It keeps the poorer ones behind bars.

Cash bail is a form of punishment that may actually generate more crime rather than less. Defendants who can't raise the money may lose jobs, homes, and custody of their children. Dooming these people to poverty and dislocation is not a formula for putting them on the straight and narrow.

In Illinois, as in many other states, judges may deny bond to defendants whom they find would pose a risk to public safety if set free. Getting rid of money bail doesn't prevent judges from simply denying bail to this select group. The right to bail is not unlimited.

But selling freedom only to those who can afford it is not a formula for fairness or safety. Our system of criminal law and justice rests on the presumption of innocence. The critics of bail reform prefer a presumption of guilt.

Steve Chapman blogs at http://www.chicagotribune.com/news/opinion/chapman. Follow him on Twitter @SteveChapman13 or at https://www.facebook.com/stevechapman13. To find out more about Steve Chapman and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.