Thursday, June 14, 2007

I never promised you a rose garden. Or food.

MNO here. Spot's off rolling in dead fish or whatever he does for fun in June.

Being the civil procedure wonk that I am, I’ve been watching the fallout from the US Supreme Court's recent Bell Atlantic Corp. v. Twombly decision involving the specificity with which a plaintiff must articulate his claims under Rule 8 of the Federal Rules of Civil Procedure. Twombly included some language that might lead some to believe that the notice pleading that is the bane of existence for many civil defendants is a thing of the past.

Two weeks later, the Supremes clarified the decision and assured the litigating public that Fed. R. Civ. P. 8 remains intact. But that case, Erickson v. Pardus, included language in a dissent by Justice Clarence Thomas that provides for us a glimpse into the mind of a man whose views on criminal jurisprudence harken back to a century long ago.

The issue for the court in Pardus was the level of specificity of pleading needed by a prisoner to sustain a claim under the Eighth Amendment’s ban on cruel and unusual punishment, a bit of a yawner for most.

Unless of course you’re the imprisoned Mr. Erickson and have had your life-saving hepatitis C medicine cut off because of some trumped up rule violation. That is what his lawsuit was all about, the denial of necessary medical care was the basis of his Eighth Amendment claim.

What caught my eye was the dissent by Justice Thomas, who reiterated a position he’s held for quite some time: That the ban on cruel and unusual punishment was aimed at the punishment handed down from the sentencing court, not the conditions of confinement later on. Not being a criminal law attorney, I had to wonder if Justice Thomas really believed that the Eighth Amendment was this limited. I mean, if all the ban concerns is the actual sentence, then a prisoner would have no claim if his admittedly fair 5 year sentence turned out to be five years in a rat-infested cell with no water, no food, and frequent assaults by guards. “We promised you five years, not five years with food on a daily basis, you bum!”

Well, some quick digging revealed this to be exactly what Justice Thomas’s take on the Eighth Amendment is. In Helling v. McKinney, 509 US 25 (1993), the good Justice indicated in a chilling dissent that he does not adhere to what the majority called “contemporary standards of decency” that prohibit “deliberate indifference to serious medical needs of prisoners.” Taking a narrow view of the term “punishment,” Justice Thomas finds that pretty much all claims of cruel and unusual punishment based on conditions of confinement cases to be wrong.

So if the torture/beatings/rape inflicted by prison authorities was not specifically included as part of the sentence handed down by the court - and really when is it? - then the fact that it later happens raises no Constitutional issue for Justice Thomas, not apparently for his frequent co-dissenter, Justice Scalia.

Don't know about you, boys and girls, but to me an attempt at achieving humane prison conditions is what separates us from the past.

If you're interested in further reading on the life and jurisprudence of Justice Thomas, a new biography of him has recently been published.

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