In Prisons, Coronavirus Precautions Found Lacking

      Christopher Marlowe, an inmate at the Rayburn Correctional Center in southeastern Louisiana, suffers from diabetes — an underlying condition that makes him especially vulnerable to the risk of contracting COVID-19 from the novel coronavirus that is sweeping through prisons nationwide. Marlowe has been in federal court for the past two years, claiming inadequate medical treatment, and now is seeking more urgent relief in the form of stricter public health measures to protect himself and other inmates from the risk of coronavirus contagion.

      The federal judge in Marlowe’s case is one of two, the other in Texas, to have ordered prison officials last month to do more to protect inmates from the coronavirus. In both cases, however, a three-judge appeals court panel put the injunctions on hold with seemingly little concern about the urgency of protecting the inmates’ health.

      The judge who heard Marlowe’s testimony via teleconference along with the prison warden’s explanation of the protective measures under way concluded last month [April 23] that the prison had done too little to limit the spread of the virus. In a 14-page memorandum opinion, Judge Brian Jackson noted Marlowe’s testimony that water fountains and microwave ovens are not wiped clean and disinfected on a regular basis. Jackson also noted evidence that social distancing guidelines are not followed and are inevitably breached because of narrow corridors and lack of spacing the telephones for inmates’ use.

      Jackson acknowledged Warden Robert Tanner’s testimony that the prison staff had taken “some steps to deter the spread of the virus.” But the judge faulted Tanner for failing to require prison staff and orderlies to wear masks and other personal protective equipment.

      Marlowe testified that he sleeps in a 78-inmate dormitory, an arm’s length away from the prisoner in the adjoining bunk. At the outset, Jackson noted that Marlowe, because of his diabetes, was “extremely susceptible to serious, potentially fatal, complications should he contract COVID-19.” The judge also noted that 23 inmates had been found to have contracted the virus at the time of the hearing. With that evidence, Jackson concluded flatly that the “interests of justice demand that the court take emergency action”—specifically, ordering the prison to institute all the health measures recommended by the state.

      The fate of Jackson’s order now rests with the U.S. Supreme Court after a three-judge appeals court panel put Jackson’s injunction on hold. Emily Posner, the New Orleans attorney representing Posner, filed an application last week [May 14] asking the justices to lift the stay issued by the Fifth U.S. Circuit Court of Appeals on April 27. Marlowe’s case, Marlowe v. LeBlanc, 19A1039, is the second coronavirus-related prison suit to reach the Court within a matter of weeks; the previous case, Valentine v. Collier, 19A1034, from Texas, followed a similar path with a district court injunction ordering Texas officials to institute more stringent protective measures and then an appeals court decision to stay the injunction.

      In the Texas case, U.S. District Court Judge Keith Ellison noted such shortcomings as the lack of hand sanitizers and then detailed more than a dozen steps for the officials at Wallace Pack Prison in southeastern Texas to institute to protect the geriatric inmates at the facility from what he called the “grave” dangers from the virus. Ellison noted in his April 16 decision that one inmate at Pack Unit had already died from Covid-19 and that Covid-19 was “spread[ing] like wildfire” in prisons in Texas and throughout the country.

      The state asked the Fifth Circuit to stay Ellison’s injunction. The stay panel consisted of two Republican appointees — the veteran conservative Edith Jones and a Trump-appointed conservative Andy Oldham — and one Democratic appointee, Stephen Higginson. In an unsigned opinion granting the stay on April 22, the panel noted that some of Ellison’s ordered steps went beyond guidelines adopted by the federal Centers for Disease Control and Prevention (CDC). The panel also noted that the Prison Litigation Reform Act, adopted in the 1990s, requires that any court-ordered remedies in prison condition suits be “narrowly drawn” and “the least intrusive means necessary to correct the harms.”

      Attorneys for the inmates asked the Supreme Court, in effect, to reinstate Ellison’s injunction by staying the appeals court’s stay. But the Court turned down the request in an unsigned order issued last week [May 14]. In a seven-page opinion, Justice Sonia Sotomayor appeared to concede that the inmates had failed to make the showing needed to undo the appeals court’s stay, but went on to explicitly criticize the Fifth Circuit’s reasoning. “[T]he Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates,” she wrote. Sotomayor added later that the appeals court “may have acted outside its authority in refusing to defer to [the district court’s] factual findings.”

      Sotomayor closed by admonishing the appeals court to continue to monitor the litigation and to consider modifying its stay. The same panel, however, had already cited its ruling in the Texas case as authority for staying Judge Jackson’s order in the Louisiana case in an order issued on April 27. “It has long been said that a society’s worth can be judged by taking stock of its prisons,” Sotomayor wrote in a concluding passage. “That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.”

Trump's Blundering War Against Coronavirus

      President Trump and two of his henchmen have now served notice that they care not one whit about putting more American lives at risk during the coronavirus pandemic in pursuit of their political goals: in particular, Trump’s prospects for re-election in November. Trump encouraged states last week [May 4] to disregard the administration’s own guidelines issued last month even as the infectious disease experts, Anthony Fauci and Deborah Birx, were stressing the risks of reopening businesses and easing guidelines before the data showed progress in containing the coronavirus.

      Along with Trump, the Senate’s majority leader, Kentucky’s Mitch McConnell, decided to risk public health in the District of Columbia by summoning the Senate back into business. McConnell’s goal was not so much to tend to the nation’s unfinished business, but to approve one more Trump nominee for the federal bench and elevate a protégé, the young firebrand conservative Justin Walker, to the federal appeals court for the D.C. Circuit.

      Attorney General William Barr gave added support to Trump’s political agenda by putting the Justice Department’s clout on the side of the Trump-supporting protesters clamoring for governors to ease pandemic-related closures, the risks of more contagion be damned. Barr issued a memorandum directing two of his deputies to monitor state and local policies and take action “if necessary” to correct any policies that “could be violating the constitutional rights and civil liberties of individual citizens.

      “We do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote in the April 27 memorandum, “but the Constitution is not suspended in times of crisis.”

      Clausewitz famously observed that war is “politics by other means.” As commander in chief of the war against the coronavirus pandemic, Trump has embodied that adage from the very start. He has seen the pandemic not as a public health issue but a political obstacle to his re-election. And, thus, at least in the short term, he did what he could to keep the reported numbers down — no ramped-up testing, for example — and to avoid spooking the stock markets.

      The fates, however, were against him. By minimizing the dangers at the outset, Trump only made it easier for the virus to spread, with the result now that unemployment has reached levels unseen since the Depression and the United States leads the world in the number of lives lost to the virus. As wartime leader, Trump would have done well to recall history’s oft-taught lesson that the easiest mistake in war is to underestimate the strength of the enemy, putting more lives at risk.

      On Capitol Hill, a leading Senate Democrat mocked McConnell’s claimed need to rush the senators back to Washington, in flagrant defiance of social distancing guidelines. “It’s certainly hard to argue that this is part of a response to a national health emergency in the United States,” Illinois’ Richard Durbin told reporters [May 4]. “When the majority leader comes to us and says, ‘We have important nominations that deal with national security,’ I’m sorry, but Judge Walker is not one of them.”

      Beyond Barr’s meddlesome memorandum, the attorney general also authorized the Justice Department to file a statement of interest in a pending case brought by a church on Chincoteague Island, Virginia, that is challenging a citation for violating Gov. Ralph Northam’s executive order banning in-person religious services with more than 10 persons. The church claims that the 16 congregants maintained social distancing in the 225-seat sanctuary, but public health experts are unanimous in warning that the risk of contagion is inevitable even if small crowds do their best to keep their distance.

      The government’s designated public health experts at the Centers for Disease Control and Prevention (CDC) did their best to prescribe the steps needed to minimize the spread of the virus, but Trump’s White House apparently thinks they know best. The CDC guidelines, now shelved, suggested, among other steps, that public transit systems keep passengers separated on buses and trains. They also called on churches to consider limiting the sharing of frequently touched objects, such as hymnals, prayer books, and collection plates.

      The CDC experts have warned from the outset that the coronavirus spreads easily via hard surface contamination through contact as seemingly innocuous as touching doorknobs, elevator buttons, or the like. In White House meetings, however, chief of staff Mark Meadows and the White House liaison to the evangelist community Roger Severino were described in the New York Times’s account as arguing that the steps were too prescriptive in areas with relatively few coronavirus cases and risked infringing on religious freedom. Meanwhile, Trump himself ostentatiously refuses to wear a face mask in public, as recommended for the general public.

      To be sure, millions of Americans are very tired of worrying about the coronavirus and suffering from the effects of shutting down the economy and social intercourse in an effort to contain the pandemic. A true leader would summon Americans to fight on, with patience and resolve behind steady leadership, just as Churchill did with Britain under attack and FDR did in the United States. Alas, the United States’ leader today prefers instead to lead Americans into the valley of death in a blundering war that has already claimed more American lives than Vietnam, Iraq, and Afghanistan combined.

Qualified Immunity: A Free Pass for Abuse?

project      Trent Taylor served six days of his 11-year prison sentence for aggravated robbery in  Texas prison cells in what his lawyers describe as unconstitutionally filthy conditions: the floor in one covered with human feces and forced to sleep naked in the other in a pool of sewage backed up from a clogged drain. Taylor claims in a federal civil rights suit that guards at the maximum-security prison in Huntsville, Texas, were deliberately indifferent to conditions that amounted to prohibited “cruel and unusual punishment” under the Eighth Amendment.
      Surely, any parent who punished a child in similar conditions for a single day or even a single hour could be prosecuted for criminal child abuse. The federal appeals court for Texas has ruled in a prior case that punishment along these lines covering a period of months amounts to a constitutional violation, but Taylor’s six days of confinement in early September 2013 was not enough for the court to find a constitutional violation.
      Instead, the Fifth U.S. Circuit Court of Appeals ruled for the officers in Taylor’s case under a doctrine known as qualified immunity that gives government officials one free pass for constitutional violations without an identical precedent. The three-judge panel acknowledged some “factual disputes as to a constitutional violation,” but ruled for the officers on the ground that the applicable law “wasn’t clearly established.”
      Taylor is asking the Supreme Court to review the decision — the latest in a pileup of petitions urging the justices to reconsider qualified immunity, a judicially created doctrine dating from the 1980s with no explicit legislative authorization. The appeals court ruled in the guards’ favor on the ground that earlier decisions about unconstitutional prison conditions involved “longer periods of confinement” and thus did not clearly establish a constitutional violation under the precise circumstances of Taylor’s confinement.
      Taylor’s petition for certiorari, filed on April 24, caught the attention of Marcia Coyle, the National Law Journal’s ever watchful Supreme Court correspondent, who included it in a story compiling other, similar petitions pending before the justices. Those cases include other examples of seemingly unconstitutional conduct by law enforcement officers excused by lower courts under the qualified immunity (QI) defense. In West v. Winfield, for example, an Idaho woman, Shaniz West, sued local police officers for what she termed the “destruction” of her home in a SWAT-style raid in August 2014 after she had agreed to let the officers inside to look for her not-present fugitive ex-boyfriend.
      West is being represented in appealing the Ninth Circuit’s decision by lawyers from the libertarian Institute for Justice as part of its Immunity and Accountability Project. The project, according to the institute’s website, “is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government must follow the Constitution.” Qualified immunity routinely comes under attack in litigation from civil liberties groups on the political right, including the Cato Institute, and on the political left, such as the American Civil Liberties Union (ACLU).
      The doctrine has critics on the Court itself — from justices as ideologically diverse as Clarence Thomas and Sonia Sotomayor. Thomas voiced “growing doubts” about the Court’s qualified immunity jurisprudence in his separate opinion in Ziglar v. Abbasi (2017) as the Court cited qualified immunity for one reason to block civil rights suits against federal officials for the post-9/11 round-up of Arab and Muslim immigrants. Thomas argued in the mid-June decision that the application of the doctrine should turn on the question of whether 19th century common law would have recognized immunity.
      Two months earlier in the same term, Sotomayor had voiced concern about what she called a “disturbing trend” in favoring police officers in qualified immunity defenses. Sotomayor’s comments came in dissenting from the justices’ refusal to hear a Texas man’s effort in Salazar-Limon v. City of Houston (2017) to revive a suit for injuries sustained when a Texas trooper shot him as he was fleeing possible arrest.
      “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” Sotomayor wrote in the April 24, 2017, opinion. “But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”
      In its modern form, qualified immunity dates from the Court’s 1982 decision in Harlow v. Fitzgerald, which extended qualified but not absolute immunity to Nixon White House aides for their alleged role in firing a whistleblowing Air Force contractor, Ernest Fitzgerald. In his opinion for the Court, Justice Lewis F. Powell Jr. stated the holding in these terms: “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
      In another of the pending cases, a Tennessee man, Alexander Baxter, represented by ACLU lawyers, is asking the Court to revive his suit against Nashville police officers for injuries sustained after they unleashed a police dog on him as he was trying to surrender with his arms raised in the air. The Sixth Circuit extended qualified immunity to the officers in rejecting the suit. The justices are scheduled to consider Baxter’s appeal, Baxter v. Bracey, in their May 15 conference: the sixth relisting since October 2019. The Cato Institute and an ideologically diverse group of law professors are urging the Court to hear the case.

Kavanaugh Charting Vote to Overrule Roe v. Wade?

      Evangelisto Ramos, convicted of murder and sentenced to life in prison in Louisiana four years ago, won a new trial from the U.S. Supreme Court last week [April 20] in a decision that civil liberties advocates would ordinarily be cheering. But instead the legal left is viewing the decision warily because of a concurring opinion by Justice Brett Kavanaugh that looks like his road map for voting to overrule the Roe v. Wade abortion rights decision when he gets the chance.

      Ramos was convicted in the stabbing death of a female acquaintance after a two-day trial on evidence so shaky that two of the twelve jurors voted not guilty. At the Supreme Court, Justice Neil Gorsuch noted that the 10-2 jury vote would have resulted in a mistrial in all but two of the fifty states, all except Louisiana and Oregon. Gorsuch led an ideologically diverse five-justice majority in overruling the Court’s prior decision allowing non-unanimous jury verdicts in criminal cases in state courts though not in federal courts.

      In reversing the earlier decision, Apodaca v. Oregon (1972), Gorsuch cited the dissenting opinions in that case joined by such liberal lions as William Douglas, William Brennan, and Thurgood Marshall. The new decision came as no surprise and, in some sense, Gorsuch — the only justice to describe himself publicly as a “committed” originalist — was the one to write it.

      Gorsuch channeled not the Warren Court sensibilities of protecting criminal defendants, but James Madison’s views in writing trial by jury into the Bill of Rights. Madison and the states that ratified the Sixth Amendment, Gorsuch reasoned, all understood the right to trial by jury to adopt the practice of jury unanimity inherited from English common law.

      The Supreme Court had the same understanding about jury unanimity in criminal cases, Gorsuch explained, until the “strange turn” that it took in the 1972 decisions. The Court divided 4-1-4 in letting Louisiana and Oregon use 10-2 verdicts in criminal cases after they adopted those “unconventional schemes,” respectively, in 1898 and 1934. The pivotal vote came from Justice Lewis F. Powell, the only justice who thought the Sixth Amendment could have a different meaning in state than in federal courts.

      Gorsuch and Kavanaugh, President Trump’s two appointees on the Court, both won confirmation after professing due regard for the doctrine of stare decisis, with its deference to past decisions. Three decades earlier, Clarence Thomas made the same obeisance to precedent to win confirmation, but began within his first few months on the bench his now common practice of voting or calling for reversing prior decisions based solely on his superior understanding of constitutional law.

      To show his bona fides, Gorsuch performed a sleight of hand: the prior decisions “lacked precedential effect,” he explained, because of the odd lineup. Kavanaugh joined but felt impelled to lay out his reasons for voting to overturn 48-year-old precedents despite stare decisis. A prior decision, he explained, must be “not just wrong but grievously or egregiously wrong.” In addition, the prior decision must have produced “significant negative jurisprudential or real-world consequences.” And, as a third consideration, the question must be asked whether overruling the precedent would “unduly upset reliance interests.”

      In several Supreme Court skirmishes on abortion rights so far, Kavanaugh has shown himself to be no fan of women’s right to choose. Thus, he voted to uphold the Trump administration’s efforts to prevent a pregnant Central American teenager from getting an abortion while in custody after crossing the border illegally. When he votes to overrule Roe v. Wade, no one but Maine’s Republican senator Susan Collins will be the least bit surprised. It will be no reach at all for Kavanaugh to check his three boxes before casting aside the 1973 precedent that the Rehnquist Court voted to reaffirm in 1992 after full-dress reconsideration.

      Kavanaugh is successor to Anthony  Kennedy, one of the three Republican-appointed justices who cast the pivotal votes to save Roe in that decision, Casey v. Planned Parenthood. In their joint opinion, Kennedy, Sandra Day O’Connor, and David Souter explained that generations of American women had come to rely on the right to choose in ordering their professional and personal lives. That is precedent, but perhaps in Kavanaugh’s mind mere dictum.

      Gorsuch showed himself in his first term to have no qualms about overruling prior decisions by joining in the 5-4 decision in Janus v. AFSCME (2018) to overturn an important 40-year-old precedent for public employee unions. For Kavanaugh, his vote in Ramos represents his first to reverse a prior decision and perhaps the precedent he needs to justify his next.  

       The question remains whether Chief Justice John G. Roberts Jr. wants to be remembered for presiding over a 5-4 decision to leave women’s reproductive rights to the mercies of Republican legislators in red states eager to reduce those rights to practical insignificance. The Court is already considering in a pending case, Russo v. June Medical Services, a Louisiana law that effectively reduced the state to a single abortion clinic.

      In oral arguments, Roberts and Kavanaugh both seemed to be reaching for a rationale to uphold the Louisiana law even though identical to a Texas law that the Court struck down two years earlier. Thus, the showdown on abortion rights may still be yet to come, but Kavanaugh has given cause for concern to those who expect him to vote no as soon as he can.

Under Trump, USA Not So Free, Not So Brave

      Someday soon perhaps, Americans will gather in ballparks around the country and sing, once again, in celebration of “the land of the free and the home of the brave.” But three years into Donald Trump’s presidency, America is not so free and not so brave, according to the latest downbeat report on freedom in the world from the respected democracy watchdog, Freedom House.

      The United States scores somewhat lower on freedom in 2020 than it did when Donald Trump took office in 2017 with his promise to make America great again, according to Freedom House. Trump has undermined “democratic norms and standards within the United States,” the report states, and in the process also “undermine[d] the country’s ability to persuade other governments to defend core human rights and freedoms . . . .”
      Freedom House scores 195 countries and 15 territories around the world on political and civil liberties with a maximum score of 100. Under Trump, the United States has slipped from 90, a low A grade, to 86, a mid-range B. The report provides an uncomfortable refutation of American exceptionalism by listing 50 countries with higher grades, including virtually all of Western Europe and even some former Soviet bloc countries: the Czech Republic, Estonia, and Lithuania.

      The report cites as domestic setbacks for U.S. democracy such Trumpian practices as “pressure on electoral integrity, judicial independence, and safeguards against corruption,” along with “fierce rhetorical attacks on the press, the rule of law, and other pillars of democracy.” The impact of Trump’s attacks on the media was also highlighted this week [April 16] in a report by the Committee for Protection of Journalists that underscored the resulting loss of public confidence in the media as a particular danger “in the midst of a public health emergency.”

      Overall, the Freedom House report paints a grim picture of declines in freedom and democracy for the fourteenth consecutive year. The number of countries with declining grades has exceeded the number of countries with gains ever since 2006: most recently, 64 countries with declines in 2019 and 37 with gains. The report, titled “Leaderless Struggle for Democracy,” blames that trend in part on the United States’ retreat under Trump from its traditional role of leading the free world by inspiring and supporting democracy worldwide.

      The Trump administration “has failed to exhibit consistent commitment to a foreign policy based on the principles of democracy and human rights,” the report states bluntly. Trump has been “outspoken in denouncing authoritarian abuses by U.S. adversaries,” such as Venezuela and Iran, the report acknowledges. But he has “excused” violations by “traditional security partners, such as Turkey and Egypt,” and “has also given a pass to tyrannical leaders whom he hopes to woo diplomatically,” including Russia’s Vladimir Putin and North Korea’s Kim Jong-un.

      Trump’s cozy relationship with autocrats was on display again last week [April 14] as he assured two of the world’s major oil suppliers, Russia and Saudi Arabia, that the United States would limit oil production in tandem with the two petrostates to help maintain oil prices. In effect, as critics noted, U.S. consumers will be paying higher prices for gasoline to help support two autocracies as well as the Republican-oriented domestic oil and gas industry.

      Pluralism and democracy are “under assault,” Freedom House reports, not only from dictators but also from popularly elected leaders, including the Hindu nationalist prime minister of the world’s largest democracy, India’s Narendra Modi. The report links Trump and Modi together as elected leaders “increasingly willing to break down institutional safeguards and disregard the rights of critics and minorities as they pursue their populist agendas.”

      Overall, Freedom House counts 83 countries as free along with 49 classified as partly free and 63 countries described as not free. With those classifications, Freedom House calculates that 39 percent of the world’s 7.7 billion people live in freedom and another 25 percent in partial freedom, with more than one-third of the world’s population in “not free” countries or territories.

      The decline before Trump’s famous escalator ride to start his path to the White House, but his authoritarian tendencies have made the decade-long anti-democratic pandemic that much worse. To reverse the decline, the report lists several recommendations for “established democracies.” Without singling out the United States, the recommendations seem especially global democracy began long before Trump rode down the Trump Tower applicable to Trump, even if he has less than a year to try to counteract the ill effects of his administration’s policies so far.

      The report calls for respecting human ri and democracy at home after making explicit the intuitive assumption that attacks on democratic institutions, including the press, the judiciary, and anticorruption agencies, “undermine faith in democracy around the world.” Trump’s rhetorical attacks on the press and the judiciary have stung with only limited impact, but his  dismissals of several inspectors general over the past few weeks pose a real and present danger to the watchdog roles that Congress envisioned in creating those offices.

      The report also calls for increased support for and attention to civic education about democratic principles. Far from helping in that regard, Trump is himself a source of gross misinformation, as in his claim for “total authority” over the states during the public health emergency and his earlier claim of presidential power to do “whatever I want to do as president.” Even some Trump apologists have spoken out against these constitutional misstatements, but his political base may be misled nevertheless.