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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.


How Conservative 'Reform' Literally Cut Off A Texas Prisoner's Right Arm

How Conservative 'Reform' Literally Cut Off A Texas Prisoner's Right Arm

Denton County, Texas is home to about 941,647 people and sports five separate criminal courts. That excludes civil actions and leaves one criminal court for every 188,329 people. Denton County Commissioners expect business to be brisk.

On February 9, 2022, one of those 188,329 patrons, Greg Corley, tested positive for COVID-19, an event that’s become almost routine for millions of people. But the stakes were higher for Corley; the Denton County Court expected him to appear that day on a case for drug and firearm possession that had been pending for about a year.

At that point, the Centers for Disease Control and Prevention (CDC) had given up on the 10-day quarantine about six weeks earlier and halved it to five days. But even with the shorter isolation period, the infected Corley couldn’t and shouldn’t have appeared in court on February 9. So he emailed the court administrator with a copy of his COVID test results.

The court issued a rearrest warrant anyway for his absence. The court administrator offered Corley two dates to come in and see if 462nd County Court Judge Lee Ann Breading would vacate the warrant; one of the dates, February 14, fell squarely within the five day quarantine period. He could have appeared on February 15, but Denton County Court administrator offered Corley the date of February 22, the Tuesday after the long President’s Day weekend.

Corely never had a chance to appear on that date because the bond company arrested him on the outstanding warrant on February 15, 2002. Bounty hunters, and then Denton County Sheriffs, handcuffed Corley behind his back and thereby dislodged a stent the detainee had placed years before to correct an old motorcycle accident injury. The displaced stent blocked blood flow to his arm.
And the 1996 federal statute, the Prison Litigation Reform Act, blocked Corley from restoring it. To date, blood isn’t flowing in Corley’s right arm.

The Prison Litigation Reform Act, or PLRA, attempted to curb the number of federal lawsuits filed by inmates, many of which were described as frivolous. Retrospective analysis suggests that the evidence presented in support of passing the law was twisted in a way to make meritorious claims look frivolous, but the goal was to reduce the number of civil claims, which were overwhelmingly filed by self-represented prisoners trying to address conditions of their confinement.

The statute addressed a number of aspects of federal litigation from behind bars: filing fees, a three-strikes provision, and a requirement that inmates sustain physical injuries in order to have standing to sue jailers.

But the most consequential part of the PLRA is its exhaustion requirement; the law required anyone who wanted to sue over correctional conditions to run through all possible avenues of resolution before filing suit.

The exhaustion requirement wasn’t a bad idea — if one assumes good faith on the parts of everyone in the system, a dicey proposition in prisons and jails. That someone shouldn’t make a federal case, literally, about a problem until he searches for all solutions isn’t unreasonable by itself. But, as Corley’s case demonstrates, the exhaustion requirement has turned into an excuse and delay tactic rather than a focus on real fixes.

Corley started filing medical grievances on March 6, 2022, and the exchanges between him and jail staff soon became a master class in gaslighting; almost every answer to his increasingly panicked requests for help agreed that he needs clinical treatment while also denying it. In his first complaint, Corley wrote that he asked for medical care for the first two weeks of being in custody and was denied. The lack of care became so severe that he described being taken to the medical unit to see if a “pulse could be found for [his] right hand.”

Denton County’s Medical Grievance Board responded to Corley: “You have a medically indicated, physician directed (sic) care plan in place. You’re encouraged to continue to address your medical needs with the Correctional Health Team,” which is exactly what he was doing.

When Corley complained again a week later, he wrote: “I was called to medical to do a check for pulse on right arm. Nurse tried for 10 minutes to find pulse. No pulse found. She noted that hand is swollen, purple and cold, no blood flow to hand. She informed physician who refused medical care and sent me back to my cell. Note that this is the second time in one week that medical attention has been denied.”

Five days later, the Medical Grievance Board replied: “Previously addressed.”

On March 29, 2022, Corley complained that he asked a guard “to call medical because they did not call me for a medical appointment yesterday. He told me it was not his problem and to go sit down. I asked for a grievance form and an envelope and he denied me both.”

“The officers are not required to communicate with medical for you,” the Medical Grievance Board responded, which wasn’t what Corley had requested.

On another grievance filed by Corley two days later, he reported that a nurse “stated she could see and feel the red swollen hot area on my hand and wrist where obvious blood infection has started to form.” A week later, the same Medical Grievance Board decided, and expressed through custody staff: “This is a clinical concern that needs to be addressed with correctional health. In the interim, all encounters are reviewed by a physician.”

One of the reasons why Corley’s arm got caught in this administrative cycle is that the PLRA was unconstitutional from the start; it allows employees of a correctional facility to decide administrative remedy applications, complaints about their treatment of an inmate.

Almost 100 years ago, the Supreme Court made law in a case where judges in Prohibition-era Ohio where local mayors were allowed to decide cases and then be paid extra for every defendant found guilty. According to our highest court, when a decision maker has “a direct, personal, substantial, pecuniary interest” in a controversy, the right to due process is violated, even when the decision makers have only good intentions

Yet the Medical Grievance Board that adjudicated all of Corley’s complaints consists of two members, neither of whom are physicians. John Kissinger and Shannon Sprabary oversaw all of Corley’s complaints — and they’re two correctional health managers at Denton County Public Health who have financial interests in keeping the county’s costs down and a personal interest in looking blameless.

It’s not just possible, it’s probable, that Greg Corley’s arm has been sacrificed as a matter not of justice or clinical judgment, but of the business of criminal prosecution.