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


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