Casual cruelty

Yesterday, while in Omaha, I was to sentence a guy in a drug case. He was going to do a lot of time. We got all the way through the sentencing process save for the defendant’s opportunity to speak. When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous..

He said he had not been given his medications at Douglas County Corrections. The US Marshals had delivered the fellow’s medication to Douglas County when they transported the guy from the Diagnostic and Evaluation Center (D&E) at the state prison the day before. The fellow apparently had herniated discs that required surgery, and he was evidently anxious and depressed.

The fellow kept apologizing to me about being sick. He wanted to be sentenced. He wanted to get to a Federal Medical Center for a thorough work-up. He had no apparent motive to delay sentencing.

When I asked the US Marshals what had happened, they advised that Douglas County Corrections (where we “store” prisoners in Omaha) won’t administer medications prescribed at other correctional institutions like D&E (where we also “store” prisoners) until Douglas County Corrections is independently satisfied that the prisoner needs the medications. Until then, the prisoner does not get the medication. In this case, there was no weaning him off the medications–Douglas County Corrections simply refused to give him the stuff at all. I suppose they would have gotten around to the medication issue at some point.

I suggested that this seemed silly since the Nebraska Department of Corrections, the entity that operates D&E, is far more sophisticated than a county jail and Douglas County Corrections could probably trust the State of Nebraska that the drugs were necessary. The US Marshals, who are, in my experience, both humane and professional, replied that it was not their policy that had deprived this man of his medications. Indeed, they had done absolutely everything they could to see that he got his prescribed drugs including hand delivering them to Douglas County Corrections.

I don’t like sentencing people to prison when they are sick. That is particularly so when their sickness results from the casual cruelty of correctional bureaucrats. So, I continued sentencing. No big deal.


17 responses

  1. Thanks for bringing a touch of humanity to a dehumanizing and broken system. We must do better for so many caught in the system. No doubt there are many who deserve the system they are in but so many more never caught a break in life and we fail them with immoral treatment.

  2. Surprised! I am not surprises you were surprised. Judges need to get off the bench and walk in the hallways, maybe not of their courts, but of local inferior courts, like the one I once sat in. They need to listen to the families of the accuseds, as much as the families of the complainants. They need to feel what its like to be behind bars for a time and then come out, lacking the tools to make a better life for themselves and their families. The disgraces of the criminal justice enterprise in the US have been hidden for too long. So, you don’t like sentencing people who are sick. Don’t they make people sane so they can be executed? And, how about sentencing people who are well, who could with intensive supervision not become recidivists? Or, is that class of people one reserved for those with the money to afford expensive counsel?

    But, as for the medication problem, happens all over the country. Defendant’s lawyer should have anticipated it. PSI, or whatever they call it now, should have noted it. And, maybe the guy should not have been out pending sentence, an act of kindness you might have bestowed so he could spend time with his family, instead of preparing to waste the better part of the rest of his life in jail, doing nothing for a drug crime. Drug crime? Putting someone in jail for drug is a drug crime.

  3. I’m not sure how accessible this blog is intended to be for the lay person, but just in case, I thought I would point out something that might confuse some readers:

    So, I continued sentencing. (Judge Kopf deferred (“continued”) the sentencing hearing to another date)
    So, I continued sentencing. (“continued” meaning “just kept going”)

    It’s clear to me that the former meaning is intended — the hearing was deferred.

    Sometimes when I write, a casual voice of former editors yells at me about the use of “jargon.” I hate this voice and I yell back at it, frustratedly. All the more frustratedly because of course it is right. It’s so convenient to use the terminology we use day-in and day-out, and so annoying to discover it is confusing for other people. At least that’s how is for me; it’s probably worse for a lot of other people, such as Judges.

    Back on the merits, one hears about these kinds of problems with prisoners not getting their medication just a bit too often for it to be comfortable to assume that it is a vanishing rarity. Does anyone know of any statistics about this sort of thing in the federal system? I imagine it would be difficult to track, but I still wonder…

  4. Two issues.

    First, I note two typoes. The first is the title, which should read “Casual Cruelty,” not “Casual Cruetly.” The second is the phrase “to do a lot time,” which should probably read “a lot of time.”

    Typoes aside, why didn’t you simply order that the defendant be given his medications, or (perhaps more appropriately) that the defendant be examined immediately and then given his medications? Are there barriers to doing this? Can you discuss the issue in a later post?

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  6. And here, I was hoping that Ebenezer Judge was going to deliver an epic “Bah, Humbug!” 😦

    This tale reminds me of one of the most epic examples of casual cruelty on the bench that I have ever seen (and you know I got a million of ’em): Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). And you can’t whine about this one, as we only know of it because it was so far over-the-top that SCOTUS read the courts of the Tent Circus their version of the riot act:

    The complaint stated that Dr. Bloor’s decision to remove petitioner from his prescribed hepatitis C medication was “endangering [his] life.” It alleged this medication was withheld “shortly after” petitioner had commenced a treatment program that would take one year, that he was “still in need of treatment for this disease,” and that the prison officials were in the meantime refusing to provide treatment. This alone was enough to satisfy Rule 8(a)(2). Petitioner, in addition, bolstered his claim by making more specific allegations in documents attached to the complaint and in later filings.

    The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel. A document filed pro se is “to be liberally construed,” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

    Id. at 94.

    A review of the case history of Erickson reveals a familiar pattern. The magistrate hands his opinion to Judge Blackburn, who summarily affirms the decision, apparently without even looking at the pleadings, in a boiler-plate opinion bearing no objective indication whatsoever that he has reviewed the matter at all. E.g., Shell v. Devries, No. 06-cv-00318-REB-BNB (D.Colo. Jan 30, 2007); Signer v. Pimkova, No. 05-cv-02039-REB-MJW (D.Colo. Nov. 30, 2006); Baldauf v. Garoutte, No. 03-RB-01104 (D.Colo. Jul. 20, 2006). The courts’ intentional departure from the liberal pleading standard of Rule 8(a)(2) and the concomitant requirement that they construe pro se pleadings liberally is so obvious that it shocked the conscience of the Supreme Court, as well it should. But this is standard fare in Judge Blackburn’s court, where one routinely searches in vain for any evidence that he has actually performed the searching review he is obliged to under Rule 72. His decisions are often bereft of factual findings, and usually contain this stock paragraph:

    As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable caselaw. In addition, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The recommendation is detailed and well-reasoned. Plaintiff’s objections are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.

    Order Overruling Obj. To and Adopting Recommendations, Hale v. Ashcroft, No. 06-cv-00541-REB-KLM, 2008.DCO.004359, ¶ 9 (D.Colo. Sept. 24, 2008) (Versuslaw) (emphasis added).

    Even if Blackburn’s brusque treatment of white supremacist Matthew Hale could be attributed to the general belief that he is the scum of the earth and doesn’t deserve better, his treatment of local attorney John Cogswell borders on the mystifying. Cogswell, an erudite graduate of Yale and Georgetown School of Law with over forty years’ experience at bar, advanced the novel contention that the Senate’s failure to approve an adequate number of judges in the District of Colorado violated his right of access to the courts, with the clarity and focus you would expect from a person with that level of education and experience. Nonetheless, Defendant Blackburn declared:

    Even though plaintiff is a licensed attorney, in an abundance of caution because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. The recommendations are detailed and well-reasoned. Contrastingly, plaintiff’s objections are imponderous and without merit.

    Am. Order Overruling Objections To and Adopting Recommendations of the U. S. Magistrate Judge, Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH, 2009.DCO.0001404, ¶ 9 (D.Colo. Mar. 2, 2009) (emphasis added).

    In light of Judge K’s whine about the sequester hurting his budget, he would have a hard time asserting that Cogswell’s complaint was devoid of merit. It should be obvious to everyone that Blackburn routinely round-files facially valid pro se complaints, in much the same manner that Judge Gertner has complained of here.

    The typical pro se litigant — whose only crime is that s/he cannot afford the enormous costs of modern litigation — is met in that Court with unremitting hostility. Retired magistrate Michael J. Watanabe, allegedly told parents’ rights activist Suzanne Shell that “pro se litigants NEVER win in this court.” Affidavit of Suzanne Shell, Jan. 12, 2007 at 5 (signed copy on file; emphasis in original). This is borne out by the raw statistics and, given the well-documented and shameful practices of our federal courts, it is not difficult to understand why.

    Our federal circuit courts have become de facto certiorari courts, wherein the review of appeals filed by disfavored litigants—and especially, pro se litigants!—generally take less than ten minutes. The result is a form of constitutional triage, where the “rule of law” is supplanted by the arbitrary and capricious rule of arrogant men. As Professor Penelope Pether writes:

    Although litigants have appeals as of right to the federal courts of appeals, what happens in a wrongly or sloppily or unsafely or arbitrarily decided case is effectively a certiorari decision masquerading as an appeal as of right based on the applicable standard of review. Many of these cases cluster in areas where deep-seated sociolegal problems produce high rates of appeals, where the government is the target of the lawsuit, and the paradigmatic governmental response … is to jurisdiction strip … [to employ] disciplinary mechanisms to encourage [judges] to decide against litigants, and to impose penalties that are designed to discourage appeals.

    Penelope J. Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009) (emphasis added).

    What happened in Erickson v. Pardus? What ALWAYS happens in pro se litigation, as openly evidenced by the Eighth Circuit rules. All pro se appeals go in the “Colored” door on the side of the establishment, and are shunted to staff attorneys who are directed to make the problem go away. Article III Judges never bother to read the opinions they deliver, to say nothing of the briefs. Blackburn’s decision was obviously wrong, but it was just as obviously rubber-stamped in a casual act of judicial cruelty.

    At the end of the day, for the man of modest means, a federal district court is now a certiorari court. Judicial malfeasance is as predictable as the sunrise: Power minus accountability always equals tyranny.

  7. The disgraceful state of our injustice system–both civil and criminal–has been hidden for far too long and especially, by those who administer it.

    Coloradans had the good sense to legalize marijuana, and it is high time that drug offenders be pardoned en masse. Amusingly, this was the conclusion of that radical commie, William F. Buckley. But even that is beside the point.

    Yours is an interesting take, Judge Duckman. I am aware of your battles with the New York and Vermont legal establishments, and mindful of Judge Shira Schneidlin’s recent skirmish. You would know this better than I, but it almost seems that ‘the system’ prevents judges from displaying some semblance of humanity. I’m actually encouraged by Judge K’s regular admissions of angst, thinking that my fight against this national travesty of justice is not in vain.

    Most judges have no empathy, as they have never tasted the sting of injustice or felt the truncheon of judicial caprice. The career path is pretty standard: a judge is usually a former law clerk and career prostitute for the Department of inJustice. They whine about broken pipes and dead dryers, never stopping to think about what their (basically, enviable) lives might have been like had they been arbitrarily deprived of their careers and/or freedom on account of judicial sloth, indolence, and/or the ubiquitous “undue guild favoritism.” They are lions under the proverbial throne, with considerably more loyalty to their guild and caste than the Constitution they swore an oath to administer.

    Until judges can be held personally to account for their actions on the bench, we will never have a justice system we can be proud of.

  8. Judge Kopf – I am writing to make a point similar to that of Pat Borchers. I hope that the defendant got his medicine – no matter in which facility he is being kept. I am glad that you were aware of his obvious physical distress. Elaine Mittleman

  9. Many medical facilities have a “you stop all your meds when you get here” policy. The reason is that many people have been out in the community, seeing multiple doctors, and getting many conflicting prescriptions that they weren’t really taking. They tend to faint, vomit, and do other terrible things when you finally give them all the medicines they were prescribed.

    This policy, however, has a couple of important implications:
    1. The list of meds you are stopping needs to be reviewed by somebody with a medical degree for any of a number of medicines that really shouldn’t be stopped. (And a medication administration record from another institution documenting regular administration of pain meds would qualify.) Just because it’s a policy to stop meds doesn’t mean that its not a medical decision to be made by a medical provider in each instance.
    2. The policy presumes that the person is going to be in a supervised medical facility, where you are going to diagnose and promptly treat the problems as they arise. A jail is not a hospital, and if you are going to stop meds wholesale, you have to have sufficient medical staff to recognize and treat the illness you unmask before it becomes clinically onerous.

    In summary it sounds to me like the corrections personnel got told what happens in a lot of medical facilities (the practice is particularly prevalent in nursing homes) and adopted the policy without understanding the implications that are so obvious to physicians that they often go unsaid. While the result was undoubtedly cruel I would vote for incompetence rather than malice at this point.

  10. Nobody suggests malice afoot. Indifference. Insouciance. Insensitivity. We used to call prisons correctional facilities. Punishment ends with the imposition of the sentence, however long. What should come next depends, but it has to include fixing the person, maintaining the person and rehabilitating the person.

    Here’s a question that cannot be accurately answered: how many people go to jail because it is better than their life on the street? One more than you would care to say, eh! How many people stay in jail, maxing out, because they have no place to live and cannot get a job? More or less than the first number?

    Sad. Very sad.

  11. People are sent to prison as punishment, not for punishment. The loss of freedom is the punishment. The things that go with imprisonment should be related to security and safety and some amount of efficiency in the process.
    This man wasn’t sent to that jail so he could go through withdrawl from prescribed medications and to have pain from herniated disks. Yet some prison bureaucrat took it upon himself to punish him. In my jurisdiction, I’ve seen the sheriff simply ignore court orders requiring an inmate be examined and appropriately treated. No one give a great big darn. After all, they are criminals. And the judges won’t enforce those orders.
    I won’t tell you how to do your job — oh, yes, I will — but when it comes to sentencing, unless you are backing up against a mandatory minimum, you should shave 10 percent or so off his sentence as your apology for the denial of medical treatment. Then, send a copy of the transcript to the warden, sheriff or whoever runs the place. Make it clear why you did what you did and that you’ll do it again if appropriate.
    In fact, you might tip the press to be present at the sentencing. That would make a nice headline.

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