Casual cruelty–part two

More than a few commentators responded to my earlier post Casual cruelty about the fellow who was deprived of his medications because of a silly rule at Douglas County Corrections. One of the concerns was that I had failed to see to it that he would get his medications. I cleared this up in a comment on Simple Justice. My comment read as follows:

SHG,

I knew that he would be taken back to D&E where they would administer the medications D&E authorized. As a result, I was not required to enter a order directing that he get his medications. I also offered to sentence the guy in Lincoln the next time around so we wouldn’t have to go through this nonsense again since D&E is located at the main line prison in Lincoln.

All the best.

RGK

Scott responded:

Judge,

That circumvented the problem, but neither dealt with the problem of an act of casual cruelty toward a prisoner nor saved the next human being, who might not be so lucky as to make it to your courtroom alive. I understand that the courts and BOP have to get along, but isn’t there a limit?

The sense from your post is that a judge is powerless to protect this prisoner. Is that so? Why?

Scott deserves a response.

One of the dirty little secrets in the federal judicial biz. is that federal courts such as ours are at the mercy of local jails to house our prisoners. The US Marshal spends a great deal of time trying to manage these relationships because ultimately we harm prisoners and their lawyers if the local jails refuse to take our prisoners.

Case in point: The local jail in Lincoln takes very few of our prisoners. At one point it took none of our prisoners. As Chief Judge, I begged the Lancaster County Commissioners to take more prisoners and we even offered to partially fund the building of a new jail. They were polite but not responsive. The result is that our defense lawyers must travel hundreds of extra miles to see their clients. At one point, we were holding prisoners as far away as Wisconsin. Why was the local jail administrator acting this way? Years ago, the Department of Justice, through the Marshals Service, did a contract audit and DOJ cited the local jail for violations of the contract standards. After that, I am told that the local corrections official has maintained a hard-on for the feds lasting far longer than four hours.

In fact, the only reason we can now use D&E at the prison in Lincoln as a partial substitute is because our US Marshal, a long time and highly respected cop, has a good relationship with state prison officials. By putting prisoners at D&E, the Marshal has done a huge service to prisoners and defense lawyers alike by avoiding the very serious problem of housing prisoners in far off places while providing prisoners with decent and local short-term facilities offering satisfactory medical care.

Now, let’s get back to Douglas County Corrections in Omaha, the jail that refused the medications issued by D&E to my prisoner. Douglas County Corrections does not need our business. If they cut us off, prisoners will be held all over the mid-west. So, if I order the US Marshal to land hard on Douglas County Corrections for a relatively minor problem with one prisoner’s meds spanning one day, the cost of doing so is ultimately paid by federal prisoners and defense lawyers alike.

With the foregoing in mind, this is the path I took in this case and the one I have taken in other cases when I have a problem with local jails:

  • First, I fix the problem for the prisoner. In this case, I sent him back to D&E where I knew he would get his meds. I also arranged to change the sentencing venue to avoid the problem for that prisoner in the future.
  • Second, I make noises to the US Marshal in the hopes that the US Marshal will exercise his power of private persuasion to convince Douglas County Corrections (or any another offending jail) to alter a stupid policy to avoid similar situations in the future.
  • Third, I do not shrink from upsetting corrections officials if there is no other option. Indeed, angering the Governor, I blew up the State of Nebraska’s “double bunk” policy that placed prisoners in cells without screening for safety concerns. But, I don’t exercise that type of power in situations like this one unless the benefits clearly outweigh the costs to prisoners and defense lawyers.

More than 40 years ago, I read Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession The premise of the article was that judges, prosecutors, defense lawyers and others in the criminal justice system make all sorts of compromises to make their lives easier. They do so at the expense of the defendant. Throughout my judicial career and otherwise, I have been acutely aware of that tendency, and I have sincerely struggled to avoid knowing participation in those selfish conspiracies. That said, the perfect must never become the enemy of the good. Perhaps I delude myself, but, as I see it, my handling of this bit of casual cruelty was one of those situations

RGK

17 responses

  1. I apologize in advance for my persistence, but this raises another concern about the warehousing of detained pretrial prisoners. Obviously, access of counsel to a defendant is a necessary component of a defendant’s 6th Amendment rights. That there are so many federal defendants (and so many federal crimes, as per my old SDNY pal Mike Horowitz, now DOJ IG) that they can no longer be held in pretrial facilities within reach of the courthouse and their lawyers strikes me as another intolerable situation.

    My perspective has always been that if the feds want to prosecute, it’s their duty to do whatever is necessary to afford the defendants their rights. The argument that they have too many defendants to handle isn’t the defendant’s (or lawyer’s) problem, and neither defendant nor lawyer should suffer for the government’s inability to manage the logistics of their prosecutions.

    Getting back to the renting of warehouse space for federal detainees, it’s hard to understand how this can be viewed as either a favor or an accommodation. There is a duty to provide a defendant access to his lawyer; they aren’t doing us a favor by housing our clients within reach.

    If the government can’t manage to afford the full panoply of constitutional rights to defendants because they are prosecuting too many, shouldn’t the onus be on the government rather than the defendant? It’s bad enough that it can take a full day to have a 10 minutes visit with a detained defendant in an MCC within an hour’s drive, but how burdensome, how expensive, how time consuming, must a defendant and lawyer endure to talk?

    Or is the view that the right to counsel doesn’t mean that counsel shouldn’t have to fly across the hinterlands if he needs to get an affidavit signed or discuss a matter?

    • SHGLaw,

      I don’t have a good answer to your valid point except to say that (1) we are talking about matters of degree and (2) we pay lawyers to travel all of the time. The question of how much travel is too much travel can be debated, but I have not seen the travel situation in Nebraska actually interfere in a demonstrable way with a lawyer’s obligation to represent his or her federal client.

      All the best.

      RGK

      • I’m not sure where the line is (or should be) as to how much travel is too much, but what is disturbing is the trade-off of rights: meds (or any other care a defendant requires) vs. right to counsel.

        Distinguishing the deprivation of rights by degree (and ignoring, for the time being, that the importance of a right to a defendant may differ from the court’s relative perception of that right) still places the burden on the defendant, who suffers the loss of one right or another, to some degree.

        I’m stuck on why the government’s inability to provide the full panoply of rights ends up being a defendant’s (or his lawyer’s) problem rather than the government’s problem.

        The inability to properly house and care for defendants in California resulted in an order mandating their release, for example. This shifts the burden to the government to either provide appropriate facilities or let them go free. That strikes me as the only constitutional means of addressing the government’s duty.

        • SHGlaw,

          Your dispute is with Congress. That is not an excuse, but a Constitutional reality. We judges can step in where there is a violation of a defendant’s rights, but we can’t pass appropriations bills. All the best.

          RGK

  2. The Buckley Rule has broad application. Here, doing the best that you can that’s actually doable is an example. Keep doing it.

    As to shglaw’s remark, what’s his proposed solution to his “logistics” problem? Or is he happy simply to sit on the sidelines and carp? If he has offered actionable, concrete solutions, perhaps he’ll provide a URL….

    I’ve considered for some years that we have too many Federal laws and too many Federal crimes specified. The solution to that, however, is inaccessible to judges or defense lawyers in their capacities as judges and lawyers–that’s a political matter that’s solely within the purview of us citizens.

    Eric Hines

    • Eric,

      With exceptions for the extremes (failing to pay defense lawyers, for example), your second point–that it is up to our elected officials to determine the number of crimes and how much money to devote to the prosecution of those crimes–is one that I share and strongly so. All the best.

      RGK

      • Judge,

        A small quibble about my second point: those elected officials work for us citizens, and they do what we tell them to do or let them get away with. The ultimate responsibility is ours, not theirs.

        Eric Hines

    • As to shglaw’s remark, what’s his proposed solution to his “logistics” problem? Or is he happy simply to sit on the sidelines and carp?

      This is a question raised regularly by simplistic non-lawyers who function under the misapprehension that every complex problem has a simple solution, Mencken notwithstanding. That a problem exists does not mean a solution is necessarily available. The first step in solving problems is identifying them. Even when no immediately solution presents itself, it’s still a problem.

      But this isn’t the place for me to offer my solution. This is Judge Kopf’s blog, and I sought Judge Kopf’s view on the problem. If you would like to raise the question to me, then you would do better to ask at my blog rather than here. But before you do, consider that my solution is fairly self-evident, and the response would likely reflect that.

  3. This is a question raised regularly by simplistic non-lawyers…. But this isn’t the place for me to offer my solution.

    Yet, …consider that my solution is fairly self-evident….

    Your evasive and internally contradictory response more clearly illustrates my point than I could have done, and I thank you for your assistance. Your decision to evade also reduces your credibility and my willingness to spend the bandwidth on you.

    Eric Hines

    • Eric

      The comment isn’t self contradictory. He says this isn’t the proper place too offer his solution. That doesn’t mean he’s saying he has no solution. As you point out yourself.

  4. In Houston, the BOP spent a small fortune buildng a detention center near the courthouse to make it easier to 1) transport prisoners and 2) improve attorney-client access. Previously, the feds housed most pretrial detainees in the county jail in Conroe, about 50 miles north of Houston.
    So what happened? Soon after the new FDC opened the marshal entered into a contract with a private company to house the vast majority of pretrial detainees in a new facility next door to the jail in Conroe. This week, I spent two hours traveling, about $10 in tolls and more than 100 miles driving to have a 20-minute meeting with a court appointed client. Guess who gets to pay for all of that travel.
    And, our new FDC? Well, there are some pretrial detainees there — all of whom say condtions are much, much better than in Conroe — but its mostly sentenced inmates serving short sentences in an incredibly high security facility. I have no idea how much the marshal pays the private company to transport prisoners but it has to be a bunch.
    So, sometimes the federals are the cause of much of the inconvenience and costs associated with parceling out prisoners. And, large companies in what we Texans call “the prison bidness” make huge profits.
    And where does the money come from to pay me for driving to Conroe. Yes, the already overtaxed CJA appropriation.

    • Tom,

      Thanks for the information on the disturbing situation you face. Your example illustrates why there is a serious drive in Congress to reduce the costs of federal criminal prosecutions. We simply must do one of two things: (1) build more prisons and detention centers or (2) reduce the number of federal prisoners.

      All the best.

      RGK

  5. More than 40 years ago, I read Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession. The premise of the article was that judges, prosecutors, defense lawyers and others in the criminal justice system make all sorts of compromises to make their lives easier. They do so at the expense of the defendant. Throughout my judicial career and otherwise, I have been acutely aware of that tendency, and I have sincerely struggled to avoid knowing participation in those selfish conspiracies. That said, the perfect must never become the enemy of the good.

    Another gobsmacker, especially in light of Judge Gertner’s confession that she was trained to commit felonies, rationing justice to make her life easier. What would Learned Hand say?

    One is left to wonder if the system would be good enough if your grand-daughter was the one in the dock. It is easy–often, too easy–to be indifferent to the suffering of others.

  6. Pingback: Best Criminal Law Blawg Post, 2013 | Simple Justice

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