A PS to the posts on “casual cruelty” plus something more

The first law clerk I hired was Mary Buckley. With an advanced degree in linguistics and honors from the Creighton Law School, Mary worked with me when I was a magistrate judge. That was so long ago that Mary was the one who taught me how to use a computer. Do you remember DOS commands?

Anyway, Mary read my posts on “causal cruelty” and sent me an e-mail about her experiences. You should know that Mary is a brilliant person who has always been committed to doing good in this world. (See photos of Mary and her children near the end of the link.) After she left me, she worked for Chief Judge Bill Cambridge on our court, then worked as a federal public defender, and concluded her career with the feds as a clerk to Chief Judge Smith Camp. Mary wrote:

Though I spent 18 years in judges’ chambers, I still forget that you all exist in a sheltered world. Douglas County is notorious for being horrible about getting inmates their meds. At least between 1994 and 2001 it took an Act of Congress to get a guy his pills.

And I had a horrible situation with [the] Sarpy [County jail] and the Marshals once. My client appeared for his plea. His entire head was red, scaly and swollen, and he had a gross cloudy liquid coming out of his ears. I didn’t recognize him. The prosecutor and I went and talked with WGC [Judge Cambridge] prior to the hearing about the situation. Apparently, the nurse said the situation got to that point because my client was using too much dandruff shampoo. WGC repeatedly asked the Marshal, John LNU, why my client had not been taken to a doctor, and John kept repeating, “He saw a nurse. And he caused the situation himself.” Finally WGC yelled at John in his loudest voice, “I want this guy to see a doctor today, do you understand me?” And voila, it finally happened.

No need to respond – I just think someone needs to hear these horror stories – maybe someday it will have an effect and local inmates won’t be treated like cattle, or worse.

While Mary’s horror stories regarding “causal cruelty” are worth the retelling, I find the first line of her e-mail the most important. She is right. Federal trial judges “exist in a sheltered world.” After doing this work for decades, I still need to be reminded of that truth. Young federal trial judges, especially, should take heed of Mary’s insight. It is terribly important.


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:


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.


Scott responded:


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


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.


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