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The Role of Compassion in Judicial Decisionmaking:
Public debates on the proper role of the courts often focus on the tension between two competing visions: Some people think judges should adopt a narrow role heavily constrained by precedent and text, and some people think judges should feel more free to make rules and decisions in light of the equities of the situation.

  I was thinking of that tension when I read an en banc decision of the Third Circuit from last summer, Pierre v. Attorney General. I'm going to describe the basic facts and legal standard of this very disturbing case, and then have a reader poll on how you would vote if you were a judge.

  Here are the tragic facts. Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can't provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let's turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre's argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

   The relevant regulation, 8 C.F.R. § 208.18(a)(1), limits torture to that which is
intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  Now imagine you are a judge forced to decide Pierre's fate. Do you vote that Pierre must be sent to Haiti where he will die in a matter of days because the regulation clearly limits torture to conduct "intentionally inflicted," and the suffering that Pierre describes would not be intentionally inflicted? Or do you you vote that Pierre can stay in the United States, because the statute and regulation should be read to include the horrific reality of what will happen to him as tantamount to torture? To add another wrinkle to this, the options will also ask you to categorize your general public policy preferences — as right-of-center, left-of-center, or "other." Here's the poll:

You are a judge who must vote in Pierre's case. Do you vote to allow Pierre's removal from the United States, or must he be allowed to stay in the United States?
I vote to allow the removal. My politics are right-of-center.
I vote to allow the removal. My politics are left-of-center.
I vote to allow the removal. My politics are "other."
I vote he must be allowed to stay here. My politics are right-of-center.
I vote he must be allowed to stay here. My politics are left-of-center.
I vote he must be allowed to stay here. My politics are "other'."
  
Free polls from Pollhost.com


zuch (mail) (www):
When the language is clear that specific intent to inflict injury is required, I think that the conclusion is obvious. After all, we send people to prison knowing that a not insignificant portion of them will be raped or killed ... and that violates neither the Eighth Amendment or our own torture laws.

I think you need a better hypothetical to really tease out subtleties in position here.

Cheers,
4.9.2009 11:13pm
Le Messurier (mail):
My politics are right of center; I voted that he should stay here. My rationale is that I feel one can read into the statute that his neglect would be intentional and tantamount to torture. My underlying and more important reason is that where they are out of sync, justice trumps the law. (Which, for example, is why I also believe in jury nullification.)
4.9.2009 11:14pm
Bruce:
I voted to block removal, but what's up with the "must"? I don't know if he "must" be allowed to stay, just that he should be allowed to stay. "Must" makes it sound like it's obvious, which it isn't.

Also, I noticed that the wording on the results page is different than the questions above.
4.9.2009 11:15pm
EverydayLiberal (mail):
This wasn't difficult for me to decide at all.

First of all, he's not full citizen under law, so I feel less of a moral culpability to alleviate any potential suffering from his deportation...

Secondly, his encumbered condition was caused solely by his clearly despicable and criminal action of attempted murder...

Thirdly, this case appeals to my belief that our immigration law needs to be reformed, tightened and focused into letting mainly the productive and well-adjusted into the U.S, not the burdensome fiscal weight this Haitian already is...

Moreover, the justification for the intervention would require a tendentious definition of "torture" as I understand it.

But then again, I'm not a lawyer. Or much of a soft-hearted person.
4.9.2009 11:15pm
FantasiaWHT:
I think this is a poor choice to view the idea of "compassion" - this is a guy who not only tried to kill others, but tried to kill himself, too - he's entirely responsible for his predicament.
4.9.2009 11:16pm
OrinKerr:
zuch,

1) It's not a hypothetical: It's a real case.

2) If the answer is so totally obvious to everyone, why are 21 of the first 48 votes (all we have as I write this) to allow Pierre to stay?
4.9.2009 11:16pm
Soronel Haetir (mail):
He shouldn't have received the care in a US facility either. Limit mandated care to non-life sustaining, non optional only.

I would include things like insulin within this exclusion. Basically limit prisoner treatment to things like setting bones, stitches and antiboitics. Now if a prisoner still has resources after their conviction I would be happy to let them pay for such while in custody.
4.9.2009 11:18pm
OrinKerr:
Oh, and sorry about the wording being different on the other page: I accidentally hit enter to early when creating the poll, which created the pollhost page with the wrong language.

Oh, and I should probably just say, to avoid all the usual comments: Yes, of course this isn't the perfect case; Yes, of course, the wording could be better; Yes, of course, the category of "other" isn't as helpful as it could be; etc. etc.
4.9.2009 11:20pm
Bob from Tenn (mail):
This sounds like a good case for a private act of Congress, but not for a judge to rule contrary to statute. What would be the difference between that and jury nullification?
4.9.2009 11:23pm
Tony Tutins (mail):
Send him back to prison to serve his entire sentence. This should satisfy tough-on-crime conservatives as well as bleeding-heart liberals.
4.9.2009 11:24pm
gwinje:
Thought provoking post, Professor.

I voted stay/left, not because I think a fair reading of the law suggests that result, but because a stretched reading allows it, and I'm not gonna be the one to kill the sorry wanker, as harsh as his crimes were.

I'd rather vote "get out" and be on stronger legal footing, but, again, as f***ed off as he was, I don't think a slow death in a Haitian prison is the "proper" result.
4.9.2009 11:25pm
OrinKerr:
Fascinating so far how politics colors the answer. Looking at the very early returns, with just 65 votes in:

Among right of center, 75% say he must go.
Among other, 66% say he must go,
Among left of center, 48% say he must go.

I'll have some thoughts on these sorts of results tomorrow, I hope.
4.9.2009 11:26pm
Esquire:
I think the first comment (by Zuch) is actually quite valid, and am somewhat surprised at how dismissive Orin was of his point about American prisoners (which includes, BTW, even many non-violent offenders!).

That said, this is indeed a weighty matter. But I think I might be able to cop out by noting that our system provides another "safety valve" for such cases: executive branch intervention (i.e., clemency, pardon, asylum, etc.).

Let's not forget: Socrates declined an opportunity to escape his own death because of his reverence for the rule of law (even when unjust).
4.9.2009 11:34pm
Perseus (mail):
Or do you you vote that Pierre can stay in the United States

Typo.

I voted stay/left, not because I think a fair reading of the law suggests that result, but because a stretched reading allows it, and I'm not gonna be the one to kill the sorry wanker, as harsh as his crimes were.

I wonder if being a lawyer (or in the legal field) would make one any more likely to vote for removal.
4.9.2009 11:37pm
gwinje:
Perseus,

Didn't for me. Probably should have, but there's that bleeding heart. . .
4.9.2009 11:39pm
OrinKerr:
I think the first comment (by Zuch) is actually quite valid, and am somewhat surprised at how dismissive Orin was of his point . . .

My own view is that this is a case with a very clear answer: courts cannot interfere with his removal, because the pain and suffering he describes is simply not intentional. It would be a difficult vote to cast, and I would likely have some restless nights over it. But there is no doubt in the end what the correct answer is. (Indeed, every judge on the en banc Third Circuit agreed.)

On the other hand, I also have a "side" in the debate on the proper role of the courts: I believe that judges should be constrained by text and precedent. I wrote up this example because I suspected that its dramatic facts would tease out the divide on this issue -- with a particular interest in the divide between those on the right and those on the left. I disagreed with Zuch's suggestion that the hypo wouldn't bring out disagreement because -- based on the poll results so far -- it has.
4.9.2009 11:47pm
Jeff Hall (www):
I assume that he does not have the means to pay for his own care. So if the Third Circuit had prevented the INS from removing him, then he would be receiving outpatient care from Medicaid or inpatient care in a nursing home. In other words, the judges would have been introducing a known violent predator into the most vulnerable segment of the our population.

Frankly, this wouldn't fit my notion of "compassion".
4.9.2009 11:49pm
Jim Hu:
Prof Kerr has already apologized for the wording difference, but I just want to reinforce the idea that "allow the removal" is very different from "must go". I voted to allow the removal, but don't think he "must go"... IMO, the locus of enforcement discretion should not be the court (IANAL) - esp. an appeals court.

I am assuming the validity of the premise that the only way to block the INS order is to change the intention prerequisite for defining torture.

For those who focus on the fact that Pierre is a criminal, please note also that he was doing the time for the crime. I get the sense from the tone of the comments that some wouldn't care if the INS order was on the last day of the 20 year sentence. If we would not starve a citizen felon to death for attempted murder, I don't see how Pierre's immigration status would make it OK for us to do that to him in a US prison.

However, while I don't like what will happen to Pierre in a Haitian prison, it seems to me that the consequences of changing the definition of torture are likely to be problematic.
1) Assuming that medical care is inadequate in Haitian prisons, and indeed in Haitian society at large, deporting anyone to an underdeveloped country is likely to reduce their life expectancy. How much of a reduction should be unacceptable?

2) Going outside immigration law, would a decision on this basis open the door to application in other situations where suffering occurs but is not intentionally inflicted?
4.9.2009 11:49pm
Christopher M (mail):
I voted to let him stay. I thought the statute's language easily encompassed this situation. The Haitian authorities would obviously be "intentionally" confining Pierre to prison in order "to punish[] him" -- so that part of the statute is satisfied -- and given his condition, locking him up in a prison with no medical treatment available sure sounds like torture to me (though I admit, I haven't looked up the statute to see how it defines torture -- conceivably that part of the statute raises its own issues).
4.9.2009 11:51pm
SMatthewStolte (mail):
My politics are far right of center and I voted that he must be allowed to stay, despite the fact that sending him to Haiti would not, in fact, be torture as defined in the statute.

I might be persuaded otherwise by arguments, but my reasoning is moral rather than legal — specifically, it has to do with my own moral culpability in allowing deportation, and thereby assuring his near-immediate starvation. It isn't a question of my judging the INS or Pierre or the Haitian prison system — none of which would in itself be sufficient grounds for making a ruling so plainly contrary to the letter of the law. But given the facts of the case, it doesn't seem possible to me to rule in favor of the INS without being morally culpable for his death.

On the other hand, if I were a judge trying to decide whether he should receive the death penalty for murder, and the law just as plainly stated that he should, I would rule in a way consistent with the law.

I mention that not because I want to go through the argument but because I know that lots of people would find it exceeding strange, and I thought Orin might find it mildly interesting.
4.9.2009 11:51pm
OrinKerr:
Chris M,

The Haitian authorities would be intentionally *confining* him, but not intentionally causing the pain and suffering -- the mens rea requirement is pretty clearly as to the pain and suffering.
4.9.2009 11:54pm
Curt Fischer:

when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.


Who treated Pierre immediately after he drank the acid? Who approved the treatement? If they were a public official or were acting in an official capacity, how about an argument that they are guilty of torture -- for prolonging Pierre's agony and forcing him into an incapacitated and (say he argued) degrading existence? I don't think it is a very good argument, but to me, it seems just about as colorable as the argument that INS workers can be torturers when they deport someone.
4.9.2009 11:57pm
Christopher M (mail):
Orin:

Surely you don't think that the person's experience of pain itself has to be "intentional" on the part of the authorities, do you? Surely it would count as torture under this definition if the authorities in some foreign country stuck sharp needles into a person's eyeball, even if they did so only because they believed that contact between a needle and an eyeball would have some magical cleansing effect on the person's soul, and they sincerely regretted that it caused pain, and did what they could to stick the needles in with as little pain as possible?

They'd be intentionally inserting the needles -- just as the authorities here are intentionally locking Pierre up, confining him by force to a place where he can't get medical attention.

Now intentionality is obviously a slippery concept -- but that's exactly the point. I understand the idea that judges should be confined by text and precedent. What surprises me is how often partisans of that idea seem to think that specific textual rules are obviously and straightforwardly applied to facts, when very often even legalistic language leaves a great deal of ambiguity.
4.10.2009 12:00am
Christopher M (mail):
(Please note, I haven't read the statute or consulted the case closely. I'm responding to Prof. Kerr's question as he presented it to us. Maybe other parts of the statute turn out to require the result the judges reached.)
4.10.2009 12:02am
CU 1L:
This case puts the judge in a bad position. He/we should vote leave, but that is due to a lack of authority, not a lack of compassion. The real lack of compassion lies with the INS. I imagine that they have some discretion as to which felons get deported and which do not, and they should be more compassionate to deportees who are certain to die in their destination country.

How are the deportation decisions made? Does the INS have any discretion?
4.10.2009 12:03am
Displaced Midwesterner:
Another interesting question. You are an INS official charged with making the decision whether to attempt to remove him, knowing that he faces death if you do so. Do you decide to remove him?
4.10.2009 12:05am
Displaced Midwesterner:
Just saw CU 1L's comment as I commented. The INS and its successor in DHS has substantial discretion, both formal and informal, when deciding whether to deport someone.
4.10.2009 12:07am
OrinKerr:
Christopher M,

I'm having a hard time understanding what you are asking. Are you asking me whether I think it is a good idea to define torture statutes so that they require an "intentional" infliction of pain? Or are you asking me about the meaning of the term "intentional"? Or are you saying that you think that torture can refer to any act that causes pain, such that if you intentionally do something entirely innocent that randomly and unexpectedly causes great pain, that can be an act of "torture" because the innocent act itself was intentional?
4.10.2009 12:11am
GV:
Orin, respectfully, I don’t think this case shows what you think it shows.

I think the classic liberal judicial position, held by some liberal judges -- not the caricature some conservatives paint -- is that in cases where there are reasonable legal arguments on both sides, you should be “compassionate.” (Perhaps for some judicial conservatives, the equivalent would be, in close cases, go with the more economically efficient answer.) In other words, when there is room to exercise judicial discretion and judgment, you ought to use compassion as a guiding principle. But in cases where there is a clear legal answer, compassion is irrelevant. You have no judicial discretion, and there is no need to resort to non-legal principles to resolve the dispute.

In this case, since the statutory language is clear, compassion doesn’t matter. I suspect a lot of people selected “let him stay” because they assumed that the language is not clear and would reasonable allow for a construction that would allow the petitioner to stay. (I plead guilty to that.) I suspect most people, myself included, didn’t spend much time thinking about the statutory language. Thus, they thought since their could be legal arguments made for the construction of the statute that would require the individual to remain in this country, they resorted to secondary principles (like compassion) to resolve the dispute.
4.10.2009 12:17am
Curmudgeonly Ex-Clerk (www):
Like Professor Kerr, I think the correct legal result here is quite obvious. But I cannot agree that "[i]t would be a difficult vote to cast, and I would likely have some restless nights over it." It is what it is; federal judges do not have a general writ to "do good" (whatever they might think "good" happens to be). So I would not agonize over this decision were I on the bench. (Full disclosure, if any is needed: I am on the right end of the U.S. political spectrum.)
4.10.2009 12:17am
BRM:
If we let him stay, wouldn't that set precedent for allowing almost any illegal alien to stay in the country based on a difficult medical situation?
4.10.2009 12:19am
Tugh (mail):
Orin,

I am not Christopher M, but I think what he's getting at is the precisely what needs to be "intentional." If you are 100% sure that by doing something you will cause great pain, but you are doing it not for the reason to cause pain (eg, to get information), then I submit that you are intentionally causing pain. Otherwise, you'd be getting into Yoo's territory, where means rea is only satisfied when you act with the specific intent to cause pain. Now, it seems to me that it would be reasonable to read this statute to say that by intentionally punishing Pierre for the crime he has committed, a great pain will be caused. So, I voted that he should be allowed to stay.
4.10.2009 12:19am
Bruce_M (mail) (www):
QUESTION: If Pierre had not been charged with a crime and sent to prison in the US, that is, it had only been a suicide attempt and there had been no attempted murder, what would have happened to Pierre? Did he have health insurance? Assuming he did not have health insurance, and did not qualify for medicaid/medicare, what would have happened?

What I'm asking is if his imminent death situation is only a result of his having been cared for in prison? If not for the care he received in prison, would he have died 10 years ago?

For what it's worth, I'm of the opinion that having your digestive system burnt and destroyed by sulfuric acid is more than sufficient punishment for the crime of attempted murder. It shouldn't really matter from where/whom a punishment is inflicted. Prosecutors should use prosecutorial discretion in such cases to say "okay, even though it was self-inflicted, the resultant injury is punishment enough for the crime" and not bring charges (or bring reduced charges and seek the most minimal sentence).
4.10.2009 12:22am
krs:
Interesting.

Does the AG have discretion re: whether to remove Pierre?

If so, then the result doesn't seem quite so unjust.
4.10.2009 12:28am
Bob from Ohio (mail):
Legally this is not even a close case based on the plain language of the statute.

Yet, it not only wasted a panel's time but got en banc treatment. What a waste of resources.

Should have deported him 10 years ago.

Does it really matter that he was being sent to Haiti prison rather than just released in Haiti itself? The decision's description of prison life sounds like life for 99% of "free" people there.
4.10.2009 12:28am
OrinKerr:
GV,

I'm not sure I follow. The survey asks people to say what they would do if they were a judge presented with those facts and that legal standard. Is your view that some readers are choosing not to answer that truthfully?

Tugh,

I'm not sure, but it seems like your argument is that a lot of readers aren't familiar enough with mental states in the law to understand the legal question. That's a possibility -- I would have to think about that.
4.10.2009 12:29am
Bruce_M (mail) (www):
[Deleted by OK. Bruce, please keep it relevant.]
4.10.2009 12:29am
CU 1L:
For everyone who is having trouble with the mens rea requirement, the torturer must intentionally cause pain for the reasons listed in the statute: obtaining information, punishment, or discrimination. If the pain is caused for any other reason, here a general policy of detaining criminal deportees, then the pain is not specifically intended within the meaning of the statute. There is a more clear explanation in the case opinion.
4.10.2009 12:29am
Tugh (mail):
Actually, it seems that at least 3 judges on the Court of Appeals agree that the specific intent does not require causing pain for the sake of causing pain; the specific intent requirement may be satisfied when the actor causing pain knows with certainty (or close to certainty) that an act will cause pain. At least, this is my understanding after briefly skimming the concurrence. In the end, the concurring judges agreed that in this case, the knowledge or desire of the prison officials was missing. However, the concurrence has a much better argument, in my view. Actually, if the majority's standard is adopted, it is hard to me to imagine almost any scenario where torture will be found in real life. Unless a perpetrator is a sadist who simply tortures out of enjoyment of the process, the infliction of pain is almost always secondary to the real purpose (eg, getting a confession, gathering information, etc).
4.10.2009 12:33am
Tugh (mail):
Orin,

It is always a possibility that I missing something very obvious, but I don't understand your 12:29am comment. My point was not that people lack legal understanding; rather, it was that your (and the majority's) reading of the specific intent requirement is unduly narrow. Again, if I understand you to argue that in order for torture to be found, the act has to be done with the purpose of causing pain, then it is indistinguishable from Yoo's argument, repudiated by the Justice Department. I hope that I am misunderstanding you, because I would indeed be very surprised to hear that you subscribe to this view.
In my view, knowledge that the act will cause pain may be enough to satisfy the specific intent requirement.
4.10.2009 12:38am
EverydayLiberal (mail):
So, reading over the preceding left-of-center arguments, and presuming that it is indeed agreeable that the INS enjoys such broad powers of discretion, it strikes me that the facts of the crime Pierre committed or the circumstances of his condition are essentially irrelevant within that line of thought. The core issue is that a disabled man is being deported, and he is adversely, perhaps immorally affected by the lower standard of care from whence he emigrated.

I recall reading a story in the New York Times some months ago about the fight to keep an illegal immigrant, severely cognitively compromised via a drunk-driving accident, from being deported made using those same arguments. And again in this case, the issue was the lower and not-free standard of care available in his home country, though he was in no danger of dying. His family felt that he was entitled to all sorts of expensive physical rehabilitation free of charge.

I guess my long-winded question is, where exactly is the stark line that allows this US citizen to be uncharitable and indifferent, given that there are bound to be disparities in health care between the U.S. and any nation? If Pierre was about to lose a limb, is it miserly to be indifferent? What about if Pierre is HIV positive? Is the fact that death is significantly probable the only reason this case is special?
4.10.2009 12:39am
GV:
Orin, no, I'm saying that people are not putting a lot of thought into the clarity of the statutory language. You think that the statutory language is clear and mandates deportation. But I don't think people are agreeing with you on that, so you can't interpret their vote to be simply voting based on compassion.
4.10.2009 12:41am
Malvolio:
Does anyone actually think Jesus Christ would vote to have this guy removed from the country and shipped off to Haiti where he will be locked up, denied medical treatment, and quickly, painfully die?
Presumably, people who believe in Jesus believe that Jesus would have just waved his magic wand and made Pierre the Killer all better (or however Jesus did things like that).

Exercising compassion would be, I guess, if you allowed him to be deported and then paid for his medical care in Haiti out of your own pocket.

But if you, as a judge, blocked the deportation and then forced other people to pay for his treatment, that isn't compassion, that's just abuse of your office.
4.10.2009 12:43am
Soronel Haetir (mail):
As I read the majority, even knowing that the person will be subject to something painful is not enough if that pain is inflicted for a reason other than the proscribed ones.

The needle example is a good one here, at least by my reading of the majority such a deportation would be legit.

As for the en banc hearing, it appears that was due to an intra-cirtuit split on this very issue.
4.10.2009 12:50am
OrinKerr:
Tugh,

My point is only the run-of-the-mill point that every first year law student learns: To intend a result means to have that result be the conscious object of the actor.

The Yoo memos raised a different point. If I recall correctly, in the Yoo memos, the statutory prohibition was on "severe mental or physical pain," and Yoo concluded that "severe mental pain" and "severe physical pain" had very specific and very narrow meanings. He then concluded that given those very narrow meanings, a person could do waterboarding et al. and not intend to cause "severe menetal pain" and "severe physical pain." If I recall correctly, the widely criticized flaw in the analysis was the very narrow reading of "severe physical pain" and "severe mental pain," not the meaning of "intent."
4.10.2009 12:51am
D.O.:
Prof. Kerr,

I voted for removal (with left-of-center politics) because I did not see any other consistent way out for the court. But Christopher M. caused me to think more deeply. Indeed, torture has to be intentional, but intention means that those who use torture know that it will cause pain for the subject, not that for other people it does not cause pain. I am not a lawyer so my question may be silly or irrelevant, but what courts say about imprisonment of people with claustrophobia? Do they require any accomodations? If so, is it done on the theory that doing otherwise will amount to torture? Is there difference between torture and "severe and unusual punishment" (apart from the obvious difference that torture is not always used for punishment)?
4.10.2009 12:52am
EverydayLiberal (mail):
But the infliction of pain in torture is certainly instrumental to the primary purpose, as in, "I must get this information; therefore, he needs to be put to the rack."

Therein lies the immorality of torture.

And it is certainly not the case here, because all the law aims to achieve is his removal from the country, and the hypothetical pain is merely incidental or ancillary.
4.10.2009 12:55am
OrinKerr:
GV,

To be clear, I wouldn't expect anyone to say something like, "I read the statute to bar X, but I will just vote the opposite way because I am compassionate." Rather, I would expect someone who thinks judges should be compassionate should be inclined to see the law as ambiguous unusually often. Things that would otherwise be clear become less clear, and the ambiguity then empowers the judge to reach a result that is compassionate.

It reminds me a bit of the jurisprudence of Richard Posner. Posner sees ambiguity and discretion everywhere. But that's surely no coincidence: Posner has a really strong sense of what is good public policy, as well as a wide-ranging interest in finding good solutions to new problems, and he would be bored out of his mind if he read the law to impose answers in most cases. Perceived ambiguity is the key that lets Posner do his thing.
4.10.2009 12:58am
Soronel Haetir (mail):
Also, the implementing statute also exempts legitimate pelalogical confinement from being torture. So you would have to additionally argue that Haiti's policy of detaining returned convicts is not a legitimate state interest.

It's almost an argument that Haiti is doing the best it can between the detention policy and economic reality.
4.10.2009 1:02am
Tugh (mail):
Orin,

I understand your point. However, I respectfully think that you are oversimplifying the issue of the specific intent. It seems to me that it is too narrow to read the specific intent as requiring "to have that result be the conscious object of the actor." As the concurrence points out (persuasively, to me), it may be enough to have "knowledge or desire that it will cause a certain result." Tison v. Arisona, 481 U.S. 137 (1987), etc. I haven't read the cases cited in the concurrence, but I have no reason to believe they misinterpreted the Supreme Court's cases. It seems that the majority used one sentence from another Supreme Court opinion, where the specific intent was loosely equated to purpose, and on this basis concluded that to find the specific intent, the act itself has to be done with the purpose of reaching the result. The Justice Department 2004 memo acknowledges that the law on the specific intent is at best unsettled.
Taking the majority's reasoning literally may mean that when an act is being committed with a purpose other than inflicting pain (such as gathering intel), torture may not be found because it was not the purpose. The majority tries to respond, not very convincingly, that this act may still be covered because there may be more than one purpose: ie gathering intel and causing pain (to gather intel).

In summary, I believe that it is not correct to state that the specific intent requires that the act be committed with the purpose of causing the proscribed act; knowledge may suffice.
4.10.2009 1:06am
Tugh (mail):
The statute at issue states:
"...intentionally inflicted for purposes (1) through (4)".

Interestingly, on page 13, the majority seems to implicitly acknowledge that IF Pierre had been imprisoned to be punished, then the specific intent may be found. Otherwise, why would they specifically recite the four purposes, and state that Pierre will not be imprisoned for any of these four purposes. Perhaps, if Pierre would have been imprisoned for one of these enumerated purposes AND it was known that severe pain will necessarily be inflicted, it would have been a closer call. However, on the next page, the majority seems to foreclose this possibility by stating that a motive or purpose to cause the pain is necessary. This is improper, in my view, and conflicts with logic and common sense.
4.10.2009 1:18am
Tugh (mail):
This reminds me of a problem of inherent/accidental anticipation in patent law: normally, for a patent claim to be found not novel, one needs to demonstrate that the subject matter was disclosed in prior art. However, sometimes, anticipation is found when prior art does not expressly disclose what is claimed, but it is a necessary result of practicing prior art, even if it was not appreciated at the time. Anyway, I probably lost 99% of readers here :)
4.10.2009 1:21am
ChrisTS (mail):
Generally, I agree with Tugh. It has been many years since I wrote on specific intent, but I see no evidence in recent legal theory – or judicial opinion – that suggests there is some clear conception of what the requirement means.

The notion that necessary side-effects do not count as ‘intended’ results may satisfy Catholic ethicists, but it is neither a requirement of legal reasoning nor – far less, in fact – an agreed upon precept of moral theory. If I wish to kill one passenger on an airplane and decide to do so by blowing up the plane, do I not ‘intend’ the deaths of the others?

I suspect that much of the reliance on a narrow reading of ‘intent,’ in the context of this case, is grounded in antipathy to Pierre (and/or his circumstances). But, if we will not apply such a narrow reading of intent to the actions of individuals accused of crimes, why ought we to afford the same reading to governments or their agencies?
By the way, I answered as ‘stay’ and ‘other,’ if that helps your analysis of the data.
4.10.2009 1:45am
Donny:
OK writes, "My point is only the run-of-the-mill point that every first year law student learns: To intend a result means to have that result be the conscious object of the actor."

Actually, we are presumed to intend the natural consequences of our actions in a number of areas of law.
4.10.2009 1:45am
ChrisTS (mail):
EverydayLiberal (mail):
This wasn't difficult for me to decide at all.

First of all, he's not full citizen under law, so I feel less of a moral culpability to alleviate any potential suffering from his deportation...


How is moral responsibility related to citizenship? Citizenship is a political, not a moral, category. That ‘Pierre’ is not a citizen of our nation is [largely] irrelevant to any question as to our moral responsibilities to him.
4.10.2009 1:50am
David Welker (www):

My own view is that this is a case with a very clear answer: courts cannot interfere with his removal, because the pain and suffering he describes is simply not intentional. It would be a difficult vote to cast, and I would likely have some restless nights over it. But there is no doubt in the end what the correct answer is.


To me, when you make a decision that has inevitable consequences that you know will occur, then that is intentional.

Let us change the facts to a hypothetical. What if we knew that instead of not providing medical care, Haiti prisons simply did not feed their prisoners. Clearly, in that situation, the starvation that occurs would certainly be tantamount to torture. And, the starvation would be clearly intentional.

I don't see why it is different here. You lock someone away and don't provide them with the medical care they need to survive. They die. I say just as intentional as if you had let them starve.

I think that you see "no doubt" in this case is demonstrative of narrow thinking. Which is not typical of you.

A final point. Law is meant to serve humans, not vice-versa. The rule of law does not mean you have to be a robot or have to make stupid decisions.
4.10.2009 2:08am
Ralphe (mail) (www):
Why should I, or any other person be responsible for paying for Pierre's care for the rest of his life? Does the fact that due to his own actions he is incapable of supporting himself somehow obligate the rest of us? I didn't sign up to that.

I will grant an obligation to fellow citizens and sometimes to others I find deserving. But excepting the obligation I accept for my fellow citizens, any other compassion I show is mine alone and not societies.

Because he is not the kind of person I/we would freely chose to have live in the US, but because he will suffer harm if he does not, should he have a lien on my future earnings? On yours?

I voted to send him back.
4.10.2009 2:11am
Lior:
Surely the Federal Courts are not the branch of government charged with creatively interpreting the law for compassionate reasons?

The real outrage is that the INS is seeking to have the poor guy deported. As far as I remember (IANAL), the Attorney GEneral/DOJ/INS have actual discretion -- the statues only make an alien "removable" without compelling the authorities to actually have them removed.

The courts have no discretion beyond interpreting the laws. The executive does have discretion, but tends to hide behind the laws when it fails to exercise its discretion.
4.10.2009 2:12am
EverydayLiberal (mail):
[Deleted by OK on civility grounds. Please, don't call someone's arguments "ridiculous" just because you happen to disagree with it. ]
4.10.2009 2:19am
theobromophile (www):
This may have been addressed above, but I wonder how the ex-girlfriend (whom he attempted to kill) feels about having her tax dollars go towards this guy's medical care. "Compassion" that is not.
4.10.2009 2:22am
David Welker (www):

This may have been addressed above, but I wonder how the ex-girlfriend (whom he attempted to kill) feels about having her tax dollars go towards this guy's medical care. "Compassion" that is not.


As someone who has seriously contemplated whether or not the death penalty should be an option for attempted murder I totally understand this sentiment. (Why should fortuitous circumstances beyond your control or your own incompetence save you from the death penalty? Is it not equally evil to attempt to murder someone than it is to actually murder them?)

But think of it this way. What this guy is getting is worse than the death penalty. He is basically going to slowly starve to death. That is not the penalty we as a society have attached to the crime of attempted murder, yet that is the inevitable result here.
4.10.2009 2:41am
OrinKerr:
OK writes,
"My point is only the run-of-the-mill point that every first year law student learns: To intend a result means to have that result be the conscious object of the actor."
Donny responds:
Actually, we are presumed to intend the natural consequences of our actions in a number of areas of law.
I don't understand how that is responsive. A finder of fact can certainly presume that a person intends the natural consequences of their actions. And there may be situations in the law where such a presumption may be useful. But the regulation here does not make such a presumption, and it is not implicated by the facts of the case.
4.10.2009 3:01am
J. Aldridge:
Forget the law, give me mercy!!!!
4.10.2009 3:01am
Tugh (mail):
Orin, when you have a chance, I would really like to hear your response to my arguments. Your arguments are usually well thought-out and persuasive. I am sure you appreciate the different ways the specific intent requirement may be addressed. Perhaps you are seeing something I don't or perhaps you were a bit hasty in your statement about the meaning of the specific intent.

Further and in light of this, I harbor a hope that maybe I caused you to at least reconsider your position re how "clear" the result of this case is.

Thank you for posting this, I think it illuminates nicely how differently people view the role of judges.
4.10.2009 3:05am
Christopher M (mail):
Orin:

We apparently had different first-year law-school experiences, because what I learned as a 1L (at your alma mater, ten or so years later than you) is that "intent" is a very slippery and complicated concept. (See here, for example, where Larry Solum, no wild-eyed liberal, has a long entry on "intention" in his "legal theory lexicon.")

It's easy to invent hypotheticals that test the boundaries of what intention means. Let's say I've swallowed a bag of heroin as part of a smuggling operation. Some guy learns this fact. He wants the heroin. All things being equal, he has no desire to kill me -- but he really wants the heroin. He cuts me open with a knife and takes it from my stomach. He actually tries to avoid major organs -- he'd really prefer that I live -- but in the event, I bleed to death.

Did he kill me intentionally? It certainly wasn't his "object." At the same time, he deliberately cut me open, and he knew that I was likely to die. I think most people would say that he killed me intentionally.

To draw the obvious parallel: The Haitian officials would deliberately lock Pierre up, presumably knowing that it was likely to kill him. What's the difference?

I'm not saying there are no distinctions to be drawn. I'm saying that it's a mistake to think the language of this regulation obviously and straightforwardly bars Pierre's claim, and thus that only a mistaken desire to inject compassion into the law could lead a judge to rule otherwise.
4.10.2009 3:09am
Tugh (mail):
Orin said:

"... A finder of fact can certainly presume that a person intends the natural consequences of their actions. And there may be situations in the law where such a presumption may be useful. But the regulation here does not make such a presumption, and it is not implicated by the facts of the case."

Orin, we may agree more than we disagree. You acknowledge that it is possible to presume that the natural consequences of an act are intended. Assume that Pierre's Jamaican prisoners intended to punish him for his crime by placing him into Jamaican prison. Assume further that they knew that in his condition, Pierre would be in effect tortured because the prisons are not equipped to keep him alive. Surely then one may conclude that they intended for him to be tortured because they knew that placing him into prison has the natural consequence of him being tortured.

I don't understand, though, what do you mean by saying that "the regulation here does not make such a presumption." It is a finder of fact, not the regulation itself that makes this presumption, no? If, as you say, it is possible to presume that the natural consequences of an act are intended, then I see no logical reason to find that in this particular instance, one cannot make such a presumption.
4.10.2009 3:15am
Guest12345:
It seems that there are many instances of a person somewhere in the world who is starving to death. And most anyone from a developed country could intervene and save that life. And I suspect more often than not there is no intervention. I don't know that anyone is going to travel the developed world accusing everyone of being torturers for their failure to intervene. The fact that this man is in closer proximity doesn't seem to change the moral calculus.

Also, what is the obligation to feed this gentleman. If his sentence was completely served would the society have some duty to continue feeding him for the rest of his life once he was released from custody?

Finally, if I was a Haitian penal official I'd be miffed by the assumption that we are unable to rise to the modest challenge of getting this guy a supply of protein shakes.
4.10.2009 3:17am
OrinKerr:
Christopher M,

I confess I don't remember what I learned about intent as a 1L. However, I teach this issue every fall in my course in criminal law. (Larry Solum's discussion strikes me as quite odd: It tries to create all sorts of philosophical puzzles out of what the law treats as a quite simple question.)

You ask:
Let's say I've swallowed a bag of heroin as part of a smuggling operation. Some guy learns this fact. He wants the heroin. All things being equal, he has no desire to kill me -- but he really wants the heroin. He cuts me open with a knife and takes it from my stomach. He actually tries to avoid major organs -- he'd really prefer that I live -- but in the event, I bleed to death.

Did he kill me intentionally? It certainly wasn't his "object." At the same time, he deliberately cut me open, and he knew that I was likely to die. I think most people would say that he killed me intentionally.
I don't know what most people say, but anyone who said that would get a failing grade in a criminal law course. (Ok, no one fails these days -- make in a C-). If someone tries to avoid result X, they cannot have intended result X, because to "intend" something is to subjectively try to bring it about. The mens rea you are thinking of would probably be what the criminal law calls reckless.

You write:
The Haitian officials would deliberately lock Pierre up, presumably knowing that it was likely to kill him. What's the difference?
The difference is mens rea, which is the foundational concept of all of criminal law. Perhaps there is some other field of law that uses the word "intent" to mean something other than, well, intent? That might be the problem: perhaps there are some areas that use the word intent differently than in criminal law.
4.10.2009 3:22am
OrinKerr:
Tugh,

"Specific intent" and "intent" are two distinct legal concepts. Specific intent is a term of art, a label that common law courts imposed on particular criminal offenses. The concept was famously incoherent, however: common law courts sometimes interpreted it as intent and sometime as knowledge and sometimes as something else. Much of the problem was that the term "specific intent" never specified which element of the offense the mental state might require: It was really a mess. In contrast, "intent" is a subjective state of mind with respect to a specific element of an offense with a well defined meaning.

The statute here requires a clear intent; it does not say that the offense of torture is a specific intent crime in the common law sense.

(Plus, even if it did, there was no evidence that the Haitian government had knowledge that Pierre would die; the only argument was a causal claim that he would in fact die.)
4.10.2009 3:34am
OrinKerr:
Tugh writes:
Assume that Pierre's Jamaican prisoners intended to punish him for his crime by placing him into Jamaican prison. Assume further that they knew that in his condition, Pierre would be in effect tortured because the prisons are not equipped to keep him alive. Surely then one may conclude that they intended for him to be tortured because they knew that placing him into prison has the natural consequence of him being tortured.
No, there is a difference between intent and knowledge. Further, what does it mean to *know* Pierre would suffer a great deal? What degree of certainty are you thinking?
I don't understand, though, what do you mean by saying that "the regulation here does not make such a presumption." It is a finder of fact, not the regulation itself that makes this presumption, no? If, as you say, it is possible to presume that the natural consequences of an act are intended, then I see no logical reason to find that in this particular instance, one cannot make such a presumption.
I don't think that argument works because there are no facts to be found in the problem. Pierre is positing a set of facts, and the question is whether the legal standard has been met based on the facts that Pierre posits. To "make a presumption" in that setting is simply to replace the posited facts with another and different set of facts.
4.10.2009 3:43am
tvk:
Orin, I am sure glad I didn't take your criminal law class and get the C-. So to use Solum's example, "Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live." By your reasoning, Carlos does not have sufficient mens rea to intend the death of Dawn. Maybe all we are disputing is semantics, but since the death of Dawn is the natural and probable consequence and Carlos knew it, I was taught 1L that the law pretty much irrebuttably presumed intent in these circumstances, no matter how hard the defendant protests to the contrary about his actual desires.
4.10.2009 3:47am
Tugh (mail):
Orin,

I agree that the statute required "intent." However, "intent", as interpreted by the Supreme Court includes knowledge of certain results. Thus, while the statute does require a "clear intent", as you say, this does not necessarily mean that the the knowledge of certain results cannot be considered in determining the intent. If you disagree, can you please point to specific Supreme Court cases that state that the knowledge is insufficient. It seems that, and I repeat myself, the majority relied only on an imprecise statement in US v. Bailey.


See below:

"The element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness.

"[I]t is now generally accepted that a person who acts (or omits to act) intends a result of his act (or omission) under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that the result is practically certain to follow from his conduct, whatever his desire may be as to that result."
W. LaFave &A. Scott, Criminal Law 196 (1972). See also G. Williams, Criminal Law: The General Part §§ 16, 18 (2d ed.1961); Cook, Act, Intention, and Motive in the Criminal Law, 26 Yale L.J. 645, 653-65 (1917); Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 910-911 (1939). Generally this limited distinction between knowledge and purpose has not been considered important, since "there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." LaFave &Scott, supra at 197. See also ALI, Model Penal Code, Comment on § 2.02, p. 125 (Tent.Draft No. 4, 1955). In either circumstance, the defendants are consciously behaving in a way the law prohibits, and such conduct is a fitting object of criminal punishment. See 1 Working Papers of the National Commission on Reform of Federal Criminal Laws 124 (1970).

United States v. United States Gypsum Company, 438 US 422, 445 (1978)

See also:

Traditionally, "one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts."

W. LaFave &A. Scott, Criminal Law § 28, p.196 (1972); see Lockett v. Ohio, supra, at 438 U. S. 625-626 (1978) (opinion of WHITE, J.) (equating intent with purposeful conduct); see also Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 911 (1939).

Tison v. Arizona, 481 US 137,150 (1987)
4.10.2009 3:50am
OrinKerr:
tvk,

I wonder if you are thinking of the common law elements of murder, causing a death "with malice aforethought." Courts labeled the common law crime of murder a "specific intent crime" instead of a "general intent crime." I would imagine there are precedents in which common law courts would then say that the "specific intent" was presumed in such situations as you describe, such that blowing up the bridge with knowledge that the person wold die was murder. But I believe that's different from saying that the death was intentional -- see my 3:34 comment above.
4.10.2009 3:55am
David Welker (www):

Perhaps there is some other field of law that uses the word "intent" to mean something other than, well, intent?


I definitely agree with you that there are different degrees of intentionality.

Fun Hypothetical. Y is in X's way, so X uses his sword to behead Y. (Yeah, this is out there. But hypothetical are more fun that way.) X doesn't really care whether Y lives or dies. It is not his object that Y dies. His object is to walk from point A to B without delay, which is a completely lawful objective.

1st degree Murder?

Obviously. Even if it was not the objective of X to kill Y, X's beheading of Y had totally predictable and natural consequences. Namely, the death of Y.

The intent to kill to can be formed in a moment, even if that is not the overall objective. Here, while the overall purpose of X was to get from A to B, he formed the purpose of killing Y along the way.

Likewise, the purpose or bigger objective of the authorities is to confine this individual. However, to achieve that larger purpose, it requires that this person should die due to starvation. This isn't the bigger objective, but it is the inevitable and 100% foreseeable consequence.

Furthermore, the decision to not provide the care needed is totally intentional. The Haitian authorities could provide care if they wanted to, but they choose not to. This is a conscious choice. And that failure to provide care caused the death. Just as the conscious choice of my hypothetical X to behead someone in order to facilitate the larger purpose of traveling from point A to point B caused the death.

[Remainder of post deleted by OK on civility grounds. You are invited to agree or disagree, but please don't use foul language or accuse others of bad faith.]
4.10.2009 4:01am
Tugh (mail):
Orin writes,


No, there is a difference between intent and knowledge. Further, what does it mean to *know* Pierre would suffer a great deal? What degree of certainty are you thinking?


Again, while I know you teach it to 1Ls, my understanding, as informed by my 1L course a few years ago and by several cited Supreme Court cases, in criminal law, intent includes knowledge in certain instances.
With respect to "know", I am thinking in terms of a very high degree of certainty; virtually, 100% certainty.

Orin further writes,

I don't think that argument works because there are no facts to be found in the problem. Pierre is positing a set of facts, and the question is whether the legal standard has been met based on the facts that Pierre posits. To "make a presumption" in that setting is simply to replace the posited facts with another and different set of facts.


This is slightly changing the subject. All I was saying that there is no specific reason to come up with a different treatment for this particular case. If in criminal law, the element of intent includes knowledge (ie, intent can be shown by demonstrating the defendant's knowledge that a result is certain to occur), then I see no reason to treat this case differently.
4.10.2009 4:01am
OrinKerr:
Tugh,

That's helpful, although at 4am, I admit I am fading fast and may not be able to respond fully -- I would need to go look at the sources cited to give you a full response your citations deserve, and I can't do so right now.

At the same time, note that Pierre did not argue that the Haitian authorities would have knowledge of his death or even of a high likelihood of his death. He argued that if he was removed, he would likely die. That's quite different: He did not say that the Haitian authorities would necesarilly recognize what would happen. In other words, even under the lower mens rea standard, Pierre still loses. I assume that explains why even the concurring judges on the third circuit voted against intervening in his removal.
4.10.2009 4:03am
Tugh (mail):
Orin,

I agree with your 4:03 post that Pierre lost because he did not (could not?) prove that the Haitian authorities would recognize the natural consequence of their act.

It's only 3:00am here, but I am fading fast, too. So, if you have time/desire, I'd love to get your input on the "intent" later.

Thanks for the back-and-forth and good night!
4.10.2009 4:10am
tvk:
Well, yes and no. I think we both agree that the "I hoped he wouldn't die but I sure expected him to" excuse is not enough to escape conviction for common law murder with its "malice aforethought" standard. But that doesn't help because malice aforethought included what you label as "recklessness." I guess the question is whether this semantic difference ever matters. Is there a common law crime where the defendant who swears "I hoped he wouldn't die but I expected him to" gets off whereas the one saying "I hoped he would die and I expected him to" results in conviction? As far as I know, there is no such case, because every defendant lies about his subjective intent and thus the law had to rely on objective inferences about subjective intent. Thus, when blowing up bridges, it didn't matter whether you said that subjective intent is required but it was irrebuttably inferred from the natural and probable consequence of objective acts, or whether you said that the natural and probable consequence of objective acts was itself the necessary intent.
4.10.2009 4:12am
David Welker (www):

That's helpful, although at 4am, I admit I am fading fast and may not be able to respond fully -- I would need to go look at the sources cited to give you a full response your citations deserve, and I can't do so right now.


Just a side observation. Orin loves citations. Its true. (And it is a good thing too.)
4.10.2009 4:13am
Perseus (mail):
How is moral responsibility related to citizenship? Citizenship is a political, not a moral, category. That ‘Pierre’ is not a citizen of our nation is [largely] irrelevant to any question as to our moral responsibilities to him.

On the contrary, moral obligations vary depending on the closeness of the relationship. Moral obligations are more extensive to those who are closest to us (e.g., friend or family) than to those who are more distant (e.g., neighbor, citizen, non-citizen). So citizenship is a legitimate point of comparison in helping to determine the nature and extent of our moral obligations to Pierre.
4.10.2009 4:34am
David Welker (www):
Of course, I should clarify. I infer that Orin loves citations, I don't know with metaphysical absolute certainty that he loves them.

Whether or not we are talking about the intent of a specific individual or not, intent is always an inference based on the assumption that the individual we say formed such and such intent are like ourselves and other humans.

Even if someone says they have such and such intent, we still do not truly "know" they have that intent. They could be lying. They could not understand the question. Obviously though, if someone says they formed an intent that is damaging to them and they later say they were lying, we are going to tend to believe the damaging initial assertion and discount what we are likely to see as a self-serving retraction. But, even so, we do not truly "know" what intent they have.

The prosecution only has to prove their case beyond a reasonable doubt, not beyond all doubt. Right. The fact finder is permitted to make inferences about intent that might in fact be wrong.

So, in reality, all talk about intent without consideration of natural consequences is meaningless. Intent is never proven with metaphysical certainty. It always depends on putting yourself in the defendant's shoes. If I were to point a gun at someone's face and pull the trigger (not that I would ever do such a thing) I would have intended that the person die because I know that this is the natural consequence of that action. The defendant (who is not insane) also knew that the natural consequence of pointing a gun at someone's face and pulling the trigger of a loaded gun was death. Therefore, he must have intended it, just as I or anyone must have intended that result if we did such a thing.

To assert that the Haitian authorities do not intend for the prisoner to die even though not providing the necessary care is a conscious choice strikes me as ridiculous. The bigger objective is to confine the prisoner of course. But, given knowledge of his condition and knowledge of the natural consequences of that lack of care will do and making the decision, nonetheless to not provide care and not release him so that he has some chance (however slim) of providing for his own care is to intend his death. It is to say:

The bigger objective is (1) I don't want to pay for your care and (2) I don't want to release you. For me to obtain that bigger objective, you must die. Therefore, I intend for you to die.

It is just as though if a defendant intended to rob a house but is seen by a witness. The defendant does not want to be identified. The bigger objective is (1) I don't want to be identified. For me to obtain that bigger object, you, the potential witness, must die. Therefore, I intend for you to die.

The bigger objective does not excuse the smaller objective (absent an excuse or justification). But even if there is an excuse or justification, we would not say the smaller objective was not intended, we would instead say that it was forgiven or acceptable.

I think the inference that the death of the prisoner by the Haitian authorities is intentional would be justified. Obviously, not with metaphysical certainty, but beyond a reasonable doubt. (I am, of course, without reading the case, assuming that if the prisoner is released, he will in fact die of starvation in a Haitian prison and that the Haitian authorities will be aware of his condition and that they will decline to either provide him care or release him.)
4.10.2009 4:51am
Christopher M (mail):
Orin: I know about mens rea, recklessness, etc. I find it really remarkable that you think questions about intentionality are simple. Even within criminal law -- and even after the Model Penal Code's formalization of terminology for states of mind -- questions still come up about what you have to have known, what you have to have actually had as a purpose, what you can have been merely reckless about...

And yes, questions about intent are often answered differently outside the criminal law. (Most obviously, "original intent" constitutional interpretation; those questions tend to be very different in all sorts of ways, of course.) You really can't read references to potential foreign torturers' "intent" in the Code of Federal Regulations' implementation of the Convention Against Torture as if that word were being used in a criminal statute.

Orin, I don't mean this to be rude, but come on. I'm talking to you as an academic. If you want to talk about the criminal law in a doctrinal, engineer-ish way, then great -- you're good at that, and it's a very useful skill. But if you want to post on topics like "The Role of Compassion in Judicial Decisionmaking," you need to recognize that studying judges, and the law, and what they should do and how they should act, is a complicated subject.

I get the feeling that you think that people who see legal texts &rules as tending to be ambiguous (and thus see appellate judges as often forced to make value-laden choices, not just interpret texts) are kind of wishy-washy people intellectually -- like we're just buffeted by such strong feelings and emotions about INJUSTICE that we can't keep ourselves rational, we can't restrain ourselves from wanting to come up with kind of ridiculous ways to twist language around to get the result we want. Because it makes us feel good.

That might be some people, but it isn't me, and it isn't most legally educated people I know on the left. We're not morons. Words have meanings, yes, but they are often complicated, as are the concepts and objects they refer to. This is why there exist productive fields of study in linguistics, philosophy, etc. We see that complexity and it seems clear to us that there isn't some value-neutral way to turn legal texts/rules into concrete legal decisions. So there are biases &legal maxims &principles &so on -- when you get to the appellate level in a hard case, applying the law is a complicated, messy endeavor.

It's certainly worth talking about that endeavor. But it's frustrating to be accused of being intellectually swayed by compassion, when what it feels like on this side is that intellectual rigor requires recognizing nuance and ambiguity where they exist.
4.10.2009 5:18am
Duffy Pratt (mail):
If a person shipped him off to a Haitian prison knowing his condition, I think he could pretty easily be tried and convicted of intentional murder. Last I checked, that has a pretty high standard of intent. The AG has discretion here, and is deciding to kill this guy. What's the difference?

Another question that didn't get addressed, so I guess its a losing argument, is whether there's a different due process standard for the INS when deportation will necessarily lead to the nearly immediate death of the detainee.
4.10.2009 5:53am
Chris B.:
Orin, fascinating case. I don't think you can call this int'l torture, so I think he's gotta go.

But I do just want to mention that I think the split you set up in the first paragraph is a false one -- ie you either like empathy or you prefer following the actual law. I'm no Crit., but the question assumes a certainty of law that rarely exists, and when it does folks almost always agree. I'm with Posner that just about all S. Ct. cases are indeterminate legally on some level, as are a lot of COA cases. All in all, I think--and I could easily be wrong--that you get so frustrated with activists (on both aisles) because you're more confident in law being definite and clear than many, who see a lot of slipperiness in language. This of course doesn't mean all cases or even this one, as I'm just speaking as a long time reader. Keep up the great work, in any event.
4.10.2009 7:01am
Richard Aubrey (mail):
Is the Haitian jail time part of the deportation agreement?
Did we make an arrangement with Haiti that he'd serve part of his sentence there?
Or is there some other reason he's supposed to be jailed in Haiti?
Did he commit a crime in Haiti that he's due for?
Strikes me that if Haiti has a legal claim on him, that changes the situation.
If Pierre gets to stay, so does practically anybody who owes some time in the old country in conditions less salubrious than ours.
4.10.2009 7:07am
Sarcastro (www):
[I recall a distinction between knowing and purposeful (and reckless and negligent), but that "intentionally" was taken to mean either of these.]
4.10.2009 7:10am
mattski:
I'm left of center and I agree with Orin's view of the case. It's a good posting, and I particularly enjoy reading other people's views, especially those right of center folks who argued for letting Pierre stay. Good debate.
4.10.2009 7:29am
Justin (mail):
Orin,

I'm not sure I agree with your legal analysis, under the parallel 14th Amendment law, at least. I think you're missing the fact that this is a very close call.
4.10.2009 8:08am
none (mail):
I am one of the left of center people who voted to let him stay here. However, I don't think this proves what Orin suggests. I agree that that the statute is clear that he can't really stay. However, I just could never vote in a way that would directly result in this guy's death. This is why I should/will never be a judge. I recognize that I could not follow the law when it leads to what I believe is an immoral outcome. But the hypo assumes that we are the judge.
4.10.2009 8:10am
Justin (mail):
PS - I should say that this is a very close call if there's no body of law on the meaning of the relevant regulation. Obviously, if the ambiguity in the various terms have been resolved by actual precedent, then one wouldn't have to look for parallel concepts in either criminal law or 14th Amendment law, both of which seem to cut in favor of asylum. Personally, because we are dealing with a governmental entitiy, I think the latter is more relevant, fwiw.

In that event, I would follow the precedent.
4.10.2009 8:15am
pintler:
1)I am really glad I'm not a judge. While this is an extreme example, a job making high stakes decisions when I don't have skin in the game myself is not the job for me. Good judges have my utmost respect.

2)Most posters seem to be assuming that starving to death is unpleasant. The accounts where people have come close (arctic expedition gone wrong, stranded in a lifeboat, etc) that I have read disagree. Dying of thirst is reported to be excruciating, but not by hunger. Of course, given Pierre's circumstances, this may be a meaningless distinction.

3)Incarcerated, fed through a tube? I would have sued years ago to be allowed to starve myself to death. Pierre obviously thinks differently. I mention this to point out that one of the great difficulties in deciding the fates of others is that their values may be very different from our own.
4.10.2009 8:27am
LeeMoore (mail):
As a non lawyer, I find the question absolutely mystifying. (a) the Haitian authorities don't intend to inflict pain and suffering upon him, they just intend to imprison him (b) whatever their intentions they aren't "inflicting" any harm on him - he's inflicted it on himself and all they're doing is not relieving it. If they're torturing him by not relieving his pain, so's everybody else on the planet (c) even if they were intentionally inflicting harm on him it's not to get information or as a punishment or anything to do with discrimination.

I can't see that he gets within teleport range of the definition, never mind inside it.
4.10.2009 9:13am
Patent Lawyer:
Right of center, lawyer, voted to allow to leave.

This is the sort of case that has to make hearing immigration cases so unpleasant. As wonderful as mercy is, the rest of the world is a scary, dangerous place, and if judges are willing to ignore the statutory limits to be merciful, then we won't be able to handle all the asylum seekers.

In my 1L year, our lawyering group took a field trip to watch a 2d Circuit panel in session. Two of the cases we heard were asylum appeals; a Chinese family where the woman was pregnant with her 2nd child, and an Albanian family that was a member of one of the various resistance groups and worried about reprisal. I don't know how the cases finally came out, but the panel seemed very disinclined to reverse either denial of asylum. In the case of the Chinese family, the panel was very concerned that millions of Chinese families would be eligible for asylum under that precedent, and the appellant couldn't give any particular reason she was different.

It's a nasty business, but if we're going to think about saving people from deportation out of mercy who wouldn't be covered by the statute, there are a lot more deserving people than an attempted murderer with a self-inflicted medical condition.
4.10.2009 9:15am
Alex R:
This is a late comment, I suppose... I (without any satisfaction) voted to allow deportation, left-of-center. But that is based on my understanding that the INS does have discretion on whether or not to deport, and were I the judge, I would strongly urge the INS to allow him to stay rather than to deport him. The responsibility to see that Federal laws are executed in a way that is broadly compassionate and just rests, for the most part, with the executive branch of the government, and it is the executive branch which can pay a political consequence if it behaves in a way which lacks justice and compassion.

(I second the suggestion made earlier that the poll should ask not only about political orientation, but also about legal training -- I think that lawyers or others who have gone to law school might have a different approach to questions like this than laymen like me.)
4.10.2009 9:18am
DiverDan (mail):
It seems to me that the only torture involved in this case was self-inflicted ten years earlier. Actions have consequences. Send the poor bastard back to Haiti. There are a great many more deserving (and less financially demanding) people trying to get into the U.S. Since it is apparent that we can't solve ALL of the world's problems, this particular episode of self-inflicted injury lands pretty damn low on my "deserves the mercy of the U.S. Government" list. And no, that doesn't mean that I am heartless -- it just means that, in a situation of limited supply of resources, compassion must be meted out to only a few. I personally choose to reserve my compassion for those more deserving than this particular specimen of damaged humanity.
4.10.2009 9:21am
NaG (mail):
I voted for him to stay, as an "other."

I understand why Orin believes that this is a clear case: under the statute, torture must be "intentional," and the simple fact that someone might be placed in an environment that cannot sustain him does not make that environment intentional. The Haitian prisons are what they are; they did not become intentionally inhospitable to Pierre in response to the prospect that he may become an inmate.

However, since Haitian prisons are what they are due to the intentional policies and actions of the Haitian government, my view is that those prisons are intentionally inhospitable to folks like Pierre. When the Haitian government refuses to provide adequate medical care in its prisons, it is intentionally creating an environment that is lethal to those inmates that require medical care to live. The inmate has no ability to control this environment -- the government has total control over it, and has made it a certain way. Thus, when a government creates a prison system that is geared toward making inmates suffer -- especially those in Pierre's position -- I have little problem deducing that the environment was intentionally created, and was done so to punish the inmates. As a result, I do not find Orin's reasoning compelling, and find that the torture statute applies, and rule that he cannot be deported to Haiti.

Seems pretty clear to me.
4.10.2009 9:26am
TruePath (mail) (www):
I think the torture statute is besides the point.

My reaction would be to read in an implicit exigent circumstances type exception to the deportation law when it will with near certainty cause the individuals death unless there was clear legislative history to the contrary.

Of course if it was clear the legislature wanted the law to allow deportation even when it would result in death with near certainty I would change my vote.
4.10.2009 9:28am
runape (mail):
Orin:

I wonder: where would you come out under CAT if the immigrant were to be deported for having committed, say, armed robbery, and the receiving state proposed execution or life without parole?
4.10.2009 9:31am
Michael Drake (mail) (www):
I voted to let him stay. The "more likely than not to be tortured" standard made it a relatively easy question for me. But I think I would have gone the same way even on, say, a "reasonable certainty" standard, since I'd wager even in a Haitian prison some official would have the discretion to provide the appropriate nutrition, and the exercise of that discretion not to provide it would by my lights be near enough to "intentional infliction."

It was not material to me that the guy may have been "responsible" for his actions.
4.10.2009 9:49am
Virginian:
When I read the arguments on both sides, it makes me realize why compromise is impossible in so many situations. I am right of center, and I just cannot understand why anyone would want to allow this scum to stay in the country (never mind pay for his medical care).
4.10.2009 9:59am
NaG (mail):
As an addendum to my earlier comment, I want to address one small point. The majority in the case argues that Haitian prisons are bad places because Haiti simply can't afford/create/manage better prisons. They don't have the money, they don't have adequate personnel resources, etc. That appears, to them, to indicate a lack of specific intent. Unless there are prison guards who enjoy inflicting pain on inmates, the court appears unwilling to infer any kind of specific intent.

I agree that we live in a world of limited resources. Haiti has had to make decisions as to what it can and cannot do in its prisons. But that means, by inference, that the conditions in the prisons are indeed intentional -- since the government knowingly decided that it could not afford to provide adequate medical care in its prisons, it intentionally decided not to provide that medical care, and knows that this decision has consequences. It's not like the government intended to provide that medical care but, for some reason, that care is not available. They decided to spend money on other things. And maybe that was a good decision, who knows; I am no expert on the Haitian financial situation. But there is no question to me that the prisons are intentionally the way they are.

Time for a Justice Breyer-like hypo: Let's say there is a race of fish-men on the planet. They live underwater, and all will die in 24 hours without immersion. There is not a single U.S. prison with an underwater jail cell because no one thinks it is worthwhile spending money on such things. We must now consider whether a particular fish-man can be deported to a U.S. prison. The U.S. has intentionally decided to not provide an underwater jail cell. The U.S. knows that the fish-man will die in 24 hours without immersion. The U.S. therefore knows that the fish-man will die in 24 hours in a regular jail cell if he is deported to us. How is that knowledge any different from the intent to torture the fish-man? Isn't torture from neglect every bit as harmful as torture from affirmative act (assuming that refusal to provide survivable conditions isn't an affirmative act in the first place)?
4.10.2009 10:05am
TerrencePhilip:
He does not meet the regulation's terms; the court had no choice.

Another way of looking at this is, Congresscritters knew (or could've easily found out when drafting) that many a deportee would face ghastly conditions in their home country, but made no exceptions for poor medical care or social conditions or extreme poverty. If the "solution" to this situation is to keep the man here at the great expense of law-abiding taxpayers, that solution should come from congress and not from judges twisting the words of regulations.
4.10.2009 10:06am
Bob White (mail):
Deport, right of center. I didn't think this was a very hard case, and none of the comments made me think it was. Perhaps a read of the opinion when I get a chance will change my mind a little, but I doubt it.
4.10.2009 10:13am
TruePath (mail) (www):
Also to answer the questions of why should US taxpayers be funding this guy's treatment I think the answer is pretty simple but too brutal for most people to admit.

It's not about saving lives. After all the money spent keeping this guy alive would save many more lives in Haiti. But then again so would the money we use to provide medical care to the poor US citizens. In both cases it's about the fact that many people would feel guilty and bad about being a party (even indirectly through their government) to that sort of event.

In short it's not about taking taxpayer money to save this guy. It's about using taxpayer money so americans don't feel upset about the situation.
4.10.2009 10:14am
TruePath (mail) (www):
I may have misunderstood the case.

If the court had no review at all over whether the deportation was lawful in the first place but instead merely had to decide if a specific exception to INS discretion was applicable then my implicit exemption suggestion is inapplicable and irrelevant.

If so that switches me from left of center/stay to left of center/deport.
4.10.2009 10:19am
Anderson (mail):
Sign me up with those who think that, if I intentionally deny someone the means to *eat*, I'm intentionally killing him.

I would take a great deal of persuasion, with citations to actual case law, to be convinced that this is not "intentional" conduct.

There's also an issue whether the regulation adequately implements the CAT:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

"Such purposes as" is, I think, non-exclusive, whereas the regulation appears to recite an exclusive list. So there's some wiggle-room for a court.

Those who vote to deport can cite the second bolded passage, but I don't think that starvation is incidental to a lawful sanction (again, why is Pierre in jail in Haiti? that part was unclear to me too).
4.10.2009 10:20am
Bama 1L:
Chris B writes to Professor Kerr:

All in all, I think--and I could easily be wrong--that you get so frustrated with activists (on both aisles) because you're more confident in law being definite and clear than many, who see a lot of slipperiness in language.

I've noticed this, too, although I had to take a class in jurisprudence to figure it out. It's also why Kerr takes such a dim view of Justice Ginsburg's calls from the bench for Congress to correct the Court's statutory interpretations. Ginsburg does this when thinks the majority's misreading the statute and realizes the only way to fix the error is to get them a new statute to interpret, in hopes they'll finally get it right. Kerr seems to think all the statutes in question are easy to interpret--possibly that all statutes are easy to interpret. Thus anyone who claims to have trouble interpreting the statute is actually just trying to impose personal preferences.

Incidentally, I would block the deportation. The punishment to be levied on the defendant is that awarded by the trial court.

I am surprised the mens rea discussion above didn't include "knowing." Isn't that the right answer? I know you will die even though I cut you open just to get out the heroin. I know Pierre will die even though that's not my purpose in sending him to Haiti. Alternatively, "extreme indifference" usually bumps you up a category. I'm not sure, though, that MPC mens rea categories directly apply to judges.
4.10.2009 10:21am
Casper the Friendly Guest (mail):
I am pretty left of center but I have no problem removing him. If you allow him to stay on the ground that he will die a slow and painful death in Haiti due to the lack of medical care, then any illegal alien with a debilitating medical condition would have a basis for claiming asylum in the United States. If Congress wanted to allow illegals to stay here in order to receive life-extending medical care, Congress is certainly free to amend the immigration statutes. Somehow, I don't see that happening any time soon . . .

The fact that this individual's condition was self-imposed, and the only reason he received treatment was because he was a dangerous criminal, makes his case easier, not harder.
4.10.2009 10:25am
Anderson (mail):
I know you will die even though I cut you open just to get out the heroin.

Yeah, if there's a U.S. court that has *ever* failed to find intentional killing on such facts, I'd like to see it.
4.10.2009 10:28am
IB Bill (mail) (www):
Difficult case, and especially difficult in light of the legal issues involved. I'd be extremely reticent to make a decision that could be used as a precedent.

I'm right of center and not a lawyer. My instincts are that the interests of justice allow him to stay, but my intellect says it's a legal can of worms and creating a general principle out of this case would end up not being in the interests of justice.

Beats me what to do. I'd probably make in an unpublished decision based on the very specific facts of the case and let him stay. But I fully expect to get smacked down for that in subsequent comments.
4.10.2009 10:37am
Christopher John Brennan (mail):
Deporting him would not subject him to torture in violation of 8 C.F.R. § 208.18(a)(1). (The concurrence is correct that intent and purpose are both necessary elements of torture.)

However, the claim that he will “die for lack of medical care” appears to be uncontested. Assuming that additional fact finding supports the assertion that "he would not survive in the Haitian prison for more than two or three weeks," then I would hold his deportation to be an unconstitutional death sentence.

The violent nature of the crime and fact that the medical condition was self-inflicted make Pierre an extremely unsympathetic character.

For the sake of analysis, instead consider a hypothetical case where the medical condition was the result of an unrelated accident and where the aggravated felony was a non-violent sale of a small amount marijuana.

"No person... shall be deprived of life, liberty or property without due process of law." (U.S. CONST. amend. V.)
4.10.2009 10:38am
FormerStudent:
D.O. said:
"I voted for removal (with left-of-center politics) because I did not see any other consistent way out for the court. But Christopher M. caused me to think more deeply. Indeed, torture has to be intentional, but intention means that those who use torture know that it will cause pain for the subject, not that for other people it does not cause pain."

I don't think this is so much a question of intent as causation. Ride the Metro some weeknight after 10, or drive around DC on any given weekend, and you'll see people with obvious physical ailments that must cause them excruciating pain. Presumably I could alleviate, or at least mitigate it with a $2 bottle of extra strength ibuprofen. Does the fact that I regularly, intentionally, and deliberately fail to buy an extra bottle of ibuprofen to hand out to street people make me a torturer?

Of course it doesn't, any more than our national failure to ensure medical care for Pierre constitutes a violation of the treaty.
4.10.2009 10:39am
Lex:
Orin, I liked this thought experiment. In retrospect, I wish you had asked the poll-takers how close they thought the question was. As I understand it, you think not just that righties and lefties might resolve ambiguous questions in different ways, but that they may disagree about what is an ambiguity at all. That has to be right, I think. That seems to play out a lot in statutory interpretation cases.

For what it's worth, I'm right-of-center and agreed with you that the removal was required and that the case was not that close.
4.10.2009 10:40am
Curmudgeonly Ex-Clerk (www):
Seeting aside the Pierre case, I am puzzled by the confusion evinced over intentionality in general. In criminal law, intentionality is well-defined. To use Texas law as an example, "[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code 6.03(a). The fact that some result might necessarily occur as a result of one's conduct would not qualify as intentional with respect to that result under this definition. He would be acting "knowingly" with respect to the result in question, but that is a separate state of mind. See Tex. Penal Code 6.03(b) ("A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.").
4.10.2009 10:52am
Hervé (mail):
I'm a French lawyer. I know very little about American law. So feel free to ignore my comment but at the same time perhaps I can offer a slightly different perspective:

Professor Kerr explains that "The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture". In other words, since the USA are party to this convention, US Courts have the power to stop decisions taken by US officials in violation to this Convention.

But at the same time, notwithstanding any international rule, under domestic law, US officials aren't allowed to torture anyway -or for that matter, any other crime.

Now, assuming deporting Pierre to Haiti equals sending him to certain death, aren't Courts the only bodies in the United States allowed to sentence someone to death? Wouldn't anyone else issuing such a decision committing a crime?

The way I see it, this is not only a matter of international law (in this case abiding by the Convention against Torture). It is also a domestic issue pertaining to the extent of the power of the INS, and its limitations under US law.

Or do you consider that the INS isn't committing any crime because "technically, they're only deporting him, not killing him"?

Thanks in advance for helping me understand this very interesting case.
4.10.2009 10:58am
John Yesford (mail):
I think it is quite clear that were Pierre's conditions of confinement to be carried out in the US that the Court would be required to prohibit this. So I am not quite clear as to why it is clear that it is permissible because of the intervening step of sending Pierre out of the country. Second, while Pierre didn't show that the Haitian jailers would know their treatment would cause him great pain, they aren't the only actors here, the INS is also an actor and it CLEARLY knows that this course of action will result in Pierre's slow and painful death. Finnally, I think its quite clear that a reasonable person would conclude that Pierre's treatment would be tantamount to torture, so while a case against any of the jailors for torturing Pierre would at best be weak, I don't see that the statute requires them to be guilty in order for Pierre's deportation to be blocked. And my politics are right of center, incase any one wondered.
4.10.2009 10:59am
nbdy (mail):
Wow, some disturbing stuff in here

We treat dogs and cattle better than some of you would treat another human being.

Debating the legal issues is one thing, but degrading and wishing death on another person because he committed a crime is just horrendous. No medical treatment in jail for people - so you steal a car, have cancer, and die while serving your 3 year sentence. That is insane.

There are only two people we know for sure are in Heaven...both of them convicted criminals executed for their crimes (and neither of them were U.S. Citizens).

Some of you should be ashamed of yourselves, and as a christian I am ashamed that most of you probably claim to be one as well.
4.10.2009 11:01am
Ex-Fed (mail) (www):
I think you underestimate the flexibility of the concept of intent.

We routinely instruct juries that they may (but are not compelled to) assume that people intend the natural and probable consequences of their actions. The natural and probable consequences of the failure to maintain adequate health care in a prison system is the death of prisoners with serious medical conditions.

I recognize that this is an evasion of the core question you are asking, by the way. But an interpretation of "intentionally inflicted" that was broad enough to encompass Haitian deliberate indifference would not be the most aggressive interpretation of intent that I've seen in caselaw. It wouldn't even be the most violent interpretation I've seen this week.
4.10.2009 11:09am
mwb (mail):
i have only had the opportunity to read a portion of the comments, but there are a number of issues worth addressing that may be representative of the rest.

1) Private bills—about 1 in a million are granted, and are not a feasible alternative.

2) asylum, cancellation of removal, etc., are not available to aggravated felons. Only CAT is. That is why his citizenship and criminal act are not relevant. Indeed, that is the whole point of CAT—it exists because it is the only form of relief to non-citizens who are otherwise barred from all other relief. under the treaty, no person, not even a former persecutor, can be deported if it is MORE LIKELY THAN NOT that the person will be tortured.

3) because the standard is more likely than not, allusions to occasional rapes and stabbings in U.S. prisons are not relevant.

4) He will, like all criminal aliens, serve his full sentence in the U.S. before being deported. Deportation will not spare him.

5) There is no should/must option. CAT is a treaty designed for firm relief in extreme circumstances—it is the last resort. if he qualifies, he MUST stay. if he doesn't qualify, there is no relief.

6) the legal debate is between the majority and the concurrence. pierre did not qualify because his record evidence was weak. like nearly all immigrants, he was not represented at his immigration hearing, and could not introduce the relevant evidence at a later stage, which would have included evidence that has been accepted in many other Haitian criminal deportee cases, such as that the detention is motivated by an extortion racket (prolonging detention and beatings for the sake of getting more money from family members back in the U.S.), and that certain vulnerable detainees are singled out for especially harsh treatment—worse than the rest of the detainees, including savage beatings. This is not to say that he still would have won, just that the result is not the final word on the relevant legal issue.

7) re: specific intent: in much U.S. criminal law, the actor is presumed to intend the natural and probable results of his actions. it is a 'permissive presumption. Here, despite the protective purpose of CAT, the claimant is being denied that presumption b/c the 3rd holds that 'specifically intends' is equivalent to 'motive/purpose.' as noted by Daniel Levin in the DOJ memo refuting the Bybee/Yoo memos, that is an impracticable standard for CAT b/c the stated purpose could be anything. Indeed, that is why, as noted by the concurrence, there is a separate 'purpose' element—it is that the detention be for an 'illicit purpose' which is NOT limited to the enumerated examples in the reg, and even if it was, as noted by the 2nd Circuit in Pierre v. Gonzales (a different Pierre) there are many non-legit forms that could take, including disproportionate punishment. Indeed, what is the legit purpose of the detention policy? these people have committed no crimes in Haiti, and have served their full U.S. sentences, and the detention is anyway illegal under Haitian law. (lawfulness, though, is another prong of the regulation). Even without the extortion evidence, it would be hard to argue that 'discrimination' against criminal deportees is not at work. (there is evidence of this as well). Thus, as noted by the concurrence, CAT requires, separately, 'purpose' and 'intent'—not 'purpose' PLUS 'purpose.'

7) for a contrary opinion, read the 11th circuit's "Jean-Pierre v. AG U.S.", 500 F.3d 1315. There are also numerous unpublished BIA decisions and, recently, 9th Circuit decisions reaching the opposite conclusion.
4.10.2009 11:11am
John Yesford (mail):
MWB,

Your point #7 almost convinces me that we are both wrong and that the deportation order shouldn't be blocked. Given the 9th Circuit's history, having it come to much the same conclusion as I did, is some of the best evidence that I am not thinking clearly.
4.10.2009 11:19am
mwb (mail):
let me further add that, for those focused on whether the haitian officials should be obligated to provide medication, and whether this is bad policy, the fact is, policy-wise, that they don't have to detain Pierre at all. he has committed no crime in haiti or against another haitian. they could, as required under haitian law, let him go. even if he quickly died in a ditch, there would be no CAT issue; the CAT issue springs because they choose to detain him for no legit purpose, other than extortion or widespread scapegoating of criminal deportees for all of the country's problems.
4.10.2009 11:20am
mwb (mail):
Mr. Yesford,

that is not an unusual reaction, and i'm happy to note it. in the future i'll emphasize the 11th cir. and the prior 7 points.

cheers
4.10.2009 11:25am
Anderson (mail):
"[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result"

Pierre arrives at my prison in Haiti. "He can't eat by himself," I'm told by his guard. "Only through a feeding tube."

"We have no feeding tubes here -- this is a prison, not a hospital!" I reply. "Take him to cell 126, and give him a plate of gruel like the other prisoners."

You seriously mean to tell me you couldn't get to a Texas jury on the question of whether I intended to engage in the conduct that will kill Pierre? Seriously?
4.10.2009 11:26am
The Cabbage (mail):
Thanks for putting this up Professor. Very interesting
4.10.2009 11:31am
Soronel Haetir (mail):
tvk,

One difference between the bomb hypo and the cutting open hypo is that the drug hypo posits that steps were actually taken to lower the likelyhood of death resulting from the operation, those steps just happened to fail. The bomber on the other hand took no action to prevent death.

A better parralell to the drug case would be a building demoloition, the demo team takes a walk through the building, they use loudspeakers and other devices to warn people, they set up barricades, yet someone is killed anyway, either because they were missed during the walkthrough or debris was thrown further than calculated. Do you think a murder charge could stand under such circumstances?
4.10.2009 11:36am
Anon Y. Mous:
I voted right/deport, but I think Richard Aubrey raises an important question:

Is the Haitian jail time part of the deportation agreement?
Did we make an arrangement with Haiti that he'd serve part of his sentence there?
Or is there some other reason he's supposed to be jailed in Haiti?
Did he commit a crime in Haiti that he's due for?

If we were invoking a treaty and insisting that Haiti jail him, then I think that would put us on the hook for Haiti's prison conditions. However, that does not appear to be the case. From the article:

According to the 2006 State Department Country Report for
Haiti (the “Country Report”), Haiti detains its citizens deported by reason of prior convictions in a foreign country. These detentions sometimes last several months and the Haitian government justifies its detention policy on the grounds of public safety. The Country Report indicates that the prisons are overcrowded, poorly maintained, unsanitary, and rodent infested. Prisoners suffer from malnutrition, inadequate health care, and a lack of basic hygiene.


I don't think we are responsible for what happens to him after we deport him and I stand by my original vote.
4.10.2009 11:46am
John Yesford (mail):
As for the drug hypo, you stab the guy and cut him open. There is no way that one could not conclude that your intent was other than to harm him. And its quite foreseeable that the harm you inflict would kill him (you were in fact deliberately USING deadly force). So I don't see how the fact that you tried to lessen the chance he would in fact die, absolves you of an intent to use deadly force. In fact, your attempts at mitigation arguably reinforces that you KNEW you were using deadly force. AND its not like you don't have a choice of methods here, after all, those drugs are coming out some time, you don't have to cut him open to get them.
4.10.2009 11:47am
TNeloms:
I am not a lawyer, and when I first saw the results of the poll, I was very disturbed.

After reading the comments, I understand that from a legal perspective, it's pretty clear what the right call is -- removing him. (Though I think Orin's point about which types of judges see more ambiguity is interesting and the reason for this post.)

This leads me to the conclusion that there is something very wrong with either the law in general or judicial philosophies in general. Once I was convinced that the law is pretty clear, my instinct told me to look for another way out. Obviously, I don't know enough about law to imagine ways out, and it seems from the comments that there isn't such a way. But seems to be the problem -- it seems that it would be a better system if in extreme circumstances there were always a way out.

Shouldn't there be a tool for a judge to grant an exception? Obviously it would have to be well-defined and only under very strict circumstances -- for example, someone's life is almost definitely at stake, and the harm to others from ruling this way is minimal in some sense.

The concern from adopting either such a law or such a judicial philosophy is that it would be abused by judges who simply want a certain outcome. Which is why it would have to be well-defined and strict. It might even benefit the judicial system because currently judges have to do all sorts of ridiculous maneuvers if they want to achieve a certain outcome, and this might discourage such behavior by giving them a more reasonable and consistent method for achieving the same outcome.

Is this all completely off-base because I'm not familiar enough with the law?
4.10.2009 11:56am
TNeloms:
By the way, Orin, this is really an excellent post and discussion on your part. I know you can't make the perfect survey, but it would have also been very interesting to see the split between lawyers and non-lawyers.
4.10.2009 11:57am
zuch (mail) (www):
Prof. Kerr:
zuch, 1) It's not a hypothetical: It's a real case.
Ooops, my bad. Yes, it's a real situation, and it was my mistake to say otherwise. Which then means I should retract my suggestion that a different case may mark the divisions better ... you don't get to pick your facts if using real cases. Sorry, once again.

2) If the answer is so totally obvious to everyone, why are 21 of the first 48 votes (all we have as I write this) to allow Pierre to stay?
I didn't say it was "obvious" to everyone. But my look at the votes when I'd made that comment showed a fair preponderance in favour of removal. And I'm going to read the rest of the comments and maybe I'll change my mind.... ;-)

Cheers,
4.10.2009 12:16pm
AJK:
Suppose that instead of facing a prison sentence, Pierre was going to be set free in a country where this feeding tube he requires is simply unavailable, or so prohibitively expensive there is no way he would have access to it. Surely that wouldn't fall under the CAT, would it? I have trouble seeing a qualitative difference between that situation and the reality.
4.10.2009 12:18pm
IB Bill (mail) (www):
I've thought more about it. Compassion for the guy. Judges exercise judgment. We can't send someone to his certain death. Perhaps there's a non-legal solution here -- that is, negotiating with Haiti to provide adequate medical care for the deported person. But I can't just send Pierre away, Pontius-like (and on Good Friday!), and say, "This man's blood is not on my hands."
4.10.2009 12:19pm
Soronel Haetir (mail):
TNeloms,

We already have one branch with discretion in this matter. Given that the discretion is vested in the executive branch with policy making power allowing the judiciary to make policy exceptions seems like a very bad idea.

We've already got a treaty that allows judges to make exceptions, it just isn't wide enough for this particular claimant to qualify.
4.10.2009 12:25pm
Curmudgeonly Ex-Clerk (www):
Anderson:

I think the reason that we are disagreeing is that you are fighting the facts of Pierre, so to speak. Assuming arguendo that Texas law required a showing of intentionality under the circumstances that you posit in your prison hypothetical and the incident in question occurred in Texas, the case no doubt would get to a jury (which no doubt would convict as well). But this is because Texans by and large would not buy the defense; they would not believe that the guard did not consciously intend the prisoner to die under such circumstances, given American prison conditions and the availability of proper medical care.

Pierre is different though. Pierre’s presumed fate in Haiti does not resemble the facts that you posited in your hypothetical. See Opinion at pp. 4-5 (“[Pierre] did not attribute this expected failure to ill will on behalf of the Haitian authorities. Rather, Pierre claimed that ‘Haiti does not have the means . . . to care for [his] medical condition.’”). Indeed, Pierre really did not even try to argue intentionality. See Opinion at p. 3 (“He contends that the prison officials’ knowledge that it is practically certain that he will suffer severe pain if imprisoned in Haiti is sufficient for a finding of specific intent to torture under the CAT.”) (emphasis added). So it is pretty obvious that Pierre’s allegations correspond to “knowing” rather than “intentional” conduct, as those terms generally are defined for purposes of American criminal law. See Prior Comment (discussing definitions on “knowing” and “intentional” under Texas law). This is not a close call.

I also would note, however, that this distinction between intentional and knowing conduct would not make a whit of difference in the average American criminal proceeding. For example, Texas defines murder as both “intentionally or knowingly caus[ing] the death of an individual” among other things. Tex. Penal Code 19.02(b)(1). I think this is true of a good many standard American criminal offenses (i.e., that they reach both knowing and intentional conduct). Pierre is different because the result in that case depended on intentionality.
4.10.2009 12:26pm
Anderson (mail):
(“[Pierre] did not attribute this expected failure to ill will on behalf of the Haitian authorities. Rather, Pierre claimed that ‘Haiti does not have the means . . . to care for [his] medical condition.’”

I take your point, but however inartfully drafted Pierre's pleadings were -- did he have paid representation at all? -- it is simply not the case that Haiti has no feeding tubes. Rather, Haiti has made a policy decision not to provide prisoners like Pierre with that care.
4.10.2009 12:47pm
einhverfr (mail) (www):
Without hearing any other arguments, seeing any other precedents, etc. and only based on the treaty raised, I would have to vote for removal. This assumes there isn't a valid asylum claim or issue there, and many other things. So I think this would be fairly limited to facts and arguments presented here.


The basic issues are:

1) The original injury was self-inflicted. A test which provides a great deal of deference to such an injury by itself creates a perverse incentive. I don't think the court should look at self-inflicted injury as relevant to this sort of thing. Therefore Pierre's impending death in the event of deportation is irrelevant.

2) Although there are valid questions in my mind about Haiti's policy of imprisoning deportees indefinitely and as a blanket policy, and in some respects one might argue that Pierre might be lucky in only surviving a few weeks. I don't think this is tantamount to torture however, so absent other arguments and challenges, the decision to deport would have to stand.
4.10.2009 1:00pm
Christopher M (mail):
Curmudgeonly Ex-Clerk:

This is not a criminal case, nor is the relevant regulation part of the criminal law. So it does not seem especially relevant that Texas law defines "intent" in a certain way.
4.10.2009 1:01pm
mwb (mail):
For anyone truly interested in the precise legal issue, there were several amicus briefs submitted on the behalf of the petitioner for the supplemental en banc hearing (again, he was represented at the circuit, but not at his initial hearing). one focused on CAT's specific intent element as analyzed under international law, and another on evaluating the specific intent requirement in line with the protective purposes of CAT. The petitioner's briefs focused on common law, criminal law treatises, and DOJ memos.
4.10.2009 1:08pm
einhverfr (mail) (www):
David Welker:

Has a substantial argument been made that if Pierre was released that he could support himself well enough to afford this medical care? If he is going to die even if he is released, would that change your mind?

If we adopt this standard, should we allow anyone who drinks battery acid to stay in the US indefinitely?
4.10.2009 1:08pm
DiverDan (mail):

We treat dogs and cattle better than some of you would treat another human being.


That's because dogs and cattle are, for the most part, useful. I have a dog, and she's sweet, affectionate, and obedient. She has never tried to break into another's apartment (or house, or yard, for that matter) with the intent to commit assult or attempted murder. And I have a choicw where and how to spend my money; if I choose to spend $10 a week on treats for my dog, but nothing on saving the life of a damaged, violent individual who is the author of his own dilemma, that is my choice. You are free to call me heartless, and I am free to think you brainless.
4.10.2009 1:09pm
einhverfr (mail) (www):
I guess my objection to the argument is "he will die in prison" but this does not suggest that "he will die because he is imprisoned." Most countries like Haiti do not provide stabilizing care free of charge, so if he does not end up with a well paying job immediately, he will die before he finds one.

If the Haiti government allowed him to be released so he could die on the street would that be different?
4.10.2009 1:11pm
zuch (mail) (www):
Prof. Kerr:
The Yoo memos raised a different point. If I recall correctly, in the Yoo memos, the statutory prohibition was on "severe mental or physical pain," and Yoo concluded that "severe mental pain" and "severe physical pain" had very specific and very narrow meanings. He then concluded that given those very narrow meanings, a person could do waterboarding et al. and not intend to cause "severe menetal pain" and "severe physical pain." If I recall correctly, the widely criticized flaw in the analysis was the very narrow reading of "severe physical pain" and "severe mental pain," not the meaning of "intent."
While this may have been (at least the gist of) Yoo's argument, there were at least some [on blogs and such, at the very least] that had argued that the "specific intent" to produce the pain wasn't there when the (purported) object of the acts in questions was to elicit information/confession, and the end result 'intended' wasn't the production of pain (as one might assume in sadistic torture, etc.) As you point out, the normal construction of "specific intent" is that the specific aim or result described be the conscious objective of the person in question. WRT 18 USC §2340, where the "specific[] inten[t]" required is to produce the pain itself, this intent need not be the ultimate or primary objective of the perp, just as an overarching desire to visit DisneyWorld will not negate the specific intent of the person stealing a car to deprive the lawful owner of such possession permanently in an auto theft conviction (assuming he didn't want to return it when he was done). Thus those that claim that "intent to interrogate" prevents prosecution under 18 USC § 2340A are wrong. The prohibitions of the progenitor CAT, prohibiting torture for any reason, also argue against such a claim.

8 C.F.R. § 208.18(a)(1), however, has a different intentional requirement than does 18 USC § 2340, one that is more specific and more restrictive, and which basically seems to cover only torture done for 'bad' purposes. Had the § 2340 intentional requirements been present in the CFR regulations, I might be persuaded that deportation where such pain would be the result would be barred.

Cheers,
4.10.2009 1:11pm
zuch (mail) (www):
Tugh:Orin, we may agree more than we disagree. You acknowledge that it is possible to presume that the natural consequences of an act are intended. Assume that Pierre's Jamaican prisoners intended to punish him for his crime by placing him into Jamaican prison. Assume further that they knew that in his condition, Pierre would be in effect tortured because the prisons are not equipped to keep him alive. Surely then one may conclude that they intended for him to be tortured because they knew that placing him into prison has the natural consequence of him being tortured.This argument seems to have some merit. But I think that it would have to be shown, to satisfy the regulation, that Haiti would most likely imprison Pierre, and that such imprisonment (to which we might impute a simultaneous "intent" to cause or at least allow as a natural consequent severe pain, because of his medical condition) was intended as punishment.

Cheers,
4.10.2009 1:29pm
Curmudgeonly Ex-Clerk (www):
Anderson:

Pierre was pro se in the initial administrative hearing before the immigration judge; in the Third Circuit proceedings, he was represented by counsel. From a review of the opinion, I infer that the arguments I noted above are the product of counsel. (When he was pro se, Pierre actually indicated that he had no problem returning to Haiti!) So I assume that the "knowing" argument made by counsel probably was the best that could be done on the facts (though that's just an assumption).

I understand what you are saying about Haiti's policy choices (though I plead complete ignorance as to the facts concerning same). But I think that if we accept your apparent argument--that the results of policy decisions effectively are intentional acts--then what we really will be doing is eliminating intentionality as a classification altogether and replacing it with "knowing."

For example, American prison conditions can themselves be quite dire in certain respects (e.g., prison rape). This phenomenon surely is the result of our chosen policies (e.g., the amount of funding we choose to devote to prisons, how many inmates we choose to house in a single unit, the internal security measures provided). Yet can it really be said that Americans intend some subset of its prison population to be raped? Is it our conscious objective or desire? I think not. We know it will occur as a result of our policy choices, but that is a distinct state of mind.

That's cold comfort to be sure; the end result is the same. So maybe the distinction between intentional and knowing conduct simply makes no moral difference where prison rape and our policy decisions are concerned. That undoubetedly is why we punish both intentional and knowing killing as murder: because we think both states of mind are blameworthy where the unjustified taking of life is concerned. But that does not mean both states of mind are one in the same.

So, in the end, it seems to me that what you are saying (if I may put words in your mouth) is: "It's repugnant that intentionality is required in Pierre, and the law ought to be different than what it is; intentionaliy sets too high a standard here and certainly makes no moral difference." But it does make a legal difference; so, unless you are willing to pull a "Pregerson," the best you can do as a hypothetical federal judge in this case is grudgingly concur in the removal and make your displeasure known in your concurrence.
4.10.2009 1:32pm
Scape:
This is off topic, but I did want to note that this is one of the best comment threads I've seen on Volokh in a long time. Almost everyone is civil, the discussion is interesting and informative, and both the legal and non-legal arguments being made are substantial and well thought out.

Can we have this more often?
4.10.2009 1:53pm
Curmudgeonly Ex-Clerk (www):
Christopher M wrote:
This is not a criminal case, nor is the relevant regulation part of the criminal law. So it does not seem especially relevant that Texas law defines "intent" in a certain way.
My comments are responding to the several comments in this thread in which commenters are premising their arguments (in support of non-removal) on what it means for conduct to be intentional and what intentionality requires as a state of mind. Re-read the comment thread; much of the conversation here has in fact focused on this topic.

And, yes, obviously I understand that Texas criminal law does not govern the outcome in Pierre. But it is equally obvious that American criminal law regarding mens rea might be instructive to some extent. Pierre himself apparently thought so; as one of the other commenters in this thread noted, Pierre actually premised some of his argument on common-law authorities.

Finally, I would note that the Pierre opinion's discussion of specific intent roughly parallels my discussion of the common law in terms of its reasoning:
Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one's actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.
Opinion at p.14.
4.10.2009 1:59pm
AF:
This is an interesting poll, but as the discussion shows, it less about "The Role of Compassion in Judicial Decisionmaking" than "The Meaning of 'Intentionally.'"
4.10.2009 2:00pm
Anderson (mail):
Clerk, I concede the metaphysical subtlety of "intentional" vs. "knowing" -- but I think there's a difference between *knowing* that someone will suffer something, and *causing* them to do so.

Per the examples above, say that Pierre is simply deposited at the Haiti airport terminal, and not imprisoned. He is in no one's custody. The government may well *know* that he cannot afford the care he needs, but he is, ostensibly, "free." He is not *incarcerated* where he *cannot* get the care that he needs.

(Which raises the point: what if Haiti prisons allow prisoners whatever medical care they can afford? Does that change one's answer to the poll?)

As for U.S. prisons, the point has been made that, however unconscionable the abuses we permit, they are sporadic. It's not, AFAIK, "more likely than not" that any given prisoner will be raped.
4.10.2009 2:03pm
Curmudgeonly Ex-Clerk (www):
Anderson:

I infer that, as a general matter, Haitian authorities will permit prisoners access to whatever medical care they can afford. In the Pierre opinion, the majority briefly references another case involving a Haitian deportee in which removal was upheld where the deportee's relatives would be able to provide him with necessary diabetes medication (Opinion at p. 12). But that's just an inference.
4.10.2009 2:18pm
Guest14:
Look at it this way: generally, Haiti doesn't have to feed people at all, but if Haiti confines people in prison, refusing to feed them is torture.

I don't see how this analysis is changed if Haiti is confining someone with relatively unique dietary needs.
4.10.2009 2:24pm
D.A.:
I'm left-of center, and I voted Pierre stays, not because I consider myself too soft (though I am nice) but because I don't think the language of the regulation mandates deportation as OK assumes/believes.
4.10.2009 2:45pm
tvk:
Soronel Haetir, your example doesn't do the trick because it is not the natural and probable consequence of building demolition that someone will be killed. What I wanted to clarify is Orin's understanding of three types of cases: (1) cases where the perpetrator desires the death (all agree is intent); (2) cases where the perpetrator foresees the death with virtual certainty and goes ahead anyway, but does not subjectively desire the death; and (3) cases where the perpetrator foresees the death with some probability, but does not care about what that probability is (conventional recklessness). Your hypo is probably not even recklessness, but rather conventional negligence.
4.10.2009 3:02pm
Desiderius:
Give the Haitian authorities a choice. He can stay here and they will be billed for his care, or he will be returned and aid to Haiti will be contingent upon them caring for him there.

Likewise not happy with the rhetorical switcheroo between "allow" and "must go". The agency is not that clear, given the unintended consequences of ignoring the law.
4.10.2009 3:10pm
zippypinhead:
Classic example of the old truism "hard cases make bad law." The correct legal result (removal) is clear, but it still leads otherwise-reasonable people to have major angst attacks in the middle of the night. On a more heartless note, this sort of hypothetical is actually very useful in first-year criminal law classes to help convince anybody who really should be a nurse or a poetry teacher rather than a practicing attorney to stop wasting their money on law school tuition.

I've seen a few other fact patterns where Judges worked hard to disregard unambiguous rules where they perceived the result as unduly harsh. I once had a District Judge flatly refuse to sentence a defendant to a (then-mandatory, under the Sentencing Guidelines) term of incarceration because the Judge believed the Bureau of Prisons might not be willing to pay for surgery the defendant's doctors said he needed. Another time I saw a Judge refuse to sentence an allegedly "vulnerable" defendant to jail, explicitly saying she didn't want to "kill him in prison." In both instances, the Judges warped U.S.S.G. §5H1.4 (giving limited grounds for downward departures for "extraordinary physical impairment") almost beyond recognition to get to results they thought were just. Could a judge similarly twist CAT to permit this defendant to stay? Sure... Would that be a legally-correct decision? Nope... Would it be "wrong?" That decision arguably turns on whether your soul is more cut out to be an attorney or a poetry teacher...
4.10.2009 3:14pm
Anderson (mail):
it less about "The Role of Compassion in Judicial Decisionmaking" than "The Meaning of 'Intentionally.'"

As noted above, some people seem to think that intentionality is so obvious, that only "compassion" could explain dissent from their judgment.
4.10.2009 3:23pm
Curmudgeonly Ex-Clerk (www):
On the obviousness issue, I'd offer the following as food for thought: The Third Circuit's en banc decision (which involved 13 federal judges) was unanimous in result (affirming the removal decision). Unlike, say, the Fourth or Fifth Circuits, the Third has not enjoyed a reputation for being particularly conservative in its orientation.

The judges did disagree amongst themselves regarding specific intent. Three judges concurred in the result and would have permitted specific intent to encompass knowing conduct; but, even these concurring judges felt that Pierre's claim must fail. See Concurring Opinion at p. 27 (arguing that "petitioner simply failed to adduce adequate evidence before the IJ from which we can conclude that there will be intentional infliction of pain--i.e., with knowledge or desire on the part of the prison officials"--undertaken with an illicit purpose).
4.10.2009 3:53pm
AJK:


As noted above, some people seem to think that intentionality is so obvious, that only "compassion" could explain dissent from their judgment.



It certainly appears that some (mostly, but not exclusively, those in favor of letting Pierre stay) are focusing their commentary more on whether or not they think it's just to deport him, rather than on strictly applying the governing statute to the case.
4.10.2009 3:54pm
mwb (mail):
it is important to note that it is not just the liberals who are stretching the definition, but conservatives as well, and even those not previously considered to be either, when the issue is especially prone to ideological or emotional responses. in fact, post-Pierre, the 3rd has gone beyond other circuits (the 2nd and the 11th) who side with it on its definition of specific intent.

For example, the 2nd circuit, in Pierre v. Gonzales, 502 F.3d 109, agreed that actual knowledge is irrelevant. However, it found that some deportees are indeed subject to torture motivated by a sadistic purpose. The petitioner's burden is to demonstrate that he will be so singled out for especially severe treatment (which includes savage beatings, indefinite confinement in waist-high crawl spaces, etc.). This happens regularly to the mentally or physically ill who act out, don't comply with orders, or behave strangely.

The 11th circuit granted remand on exactly this basis in Jean-Pierre v. AG U.S., 500 F.3d 1315. In fact, the basis for these 'singling-out' based claims was the prior 3rd circuit law in Lavira v. AG U.S., 478 F.3d 158.

However, since Pierre v. AG U.S., the third circuit has taken the 'purpose' standard to overrule ALL of Lavira. Though it didn't specifically address the 'singling-out' standard, it has since dismissed ALL singling-out based claims, including even those involving schizophrenics, those subject to seizures, and others. It is not just that the third disputes the facts; they believe that, post-Pierre, no one EVEN HAS A CLAIM in this context, including those that the 2nd and 11th approve of--that 'singling-out" someone for torture is the same has having the purpose of torturing that person.

this is just to say that a conservative bench can and does bend the law to match the result it wants, just the same as a liberal bench can and does. The decision in Pierre, and the decisions in subsequent cases, do not even make an attempt to address 95% of the arguments and evidence presented. Pierre is being used to summarily dismiss all such claims.

the 3rd may not generally be considered to be one of the more conservative benches, but its surprising what happens when the topic is torture. or haiti. or immigrants convicted of serious crimes.
4.10.2009 4:52pm
guestttttttt:
>>At the same time, note that Pierre did not argue that the Haitian authorities would have knowledge of his death or even of a high likelihood of his death. He argued that if he was removed, he would likely die. That's quite different: He did not say that the Haitian authorities would necesarilly recognize what would happen.

If that's the case (based on the actual litigation, and Orin's understanding of the problem), then the poll is flawed. I should think it clear from the argument that he would not be fed through a tube and would die, that the Haitian authorities would have knowledge of this. Is that implicit in the argument? Maybe. Surely he would *tell them* while on his way to starving to death. Surely they would watch his condition rapidly deteriorate. If Pierre argued that he would die in this manner but that the officials would not know this, then votes are surely being cast on the misunderstanding of the question under which there at least arguably was intent to cause his painful death.
4.10.2009 4:53pm
gasman (mail):
The medical issues are a bit overwrought.
Tube feeding is pretty simple stuff. If you can mash it or puree it pour it into the tube and viola, dinner. Depending on the type of gastric tube he uses, it can be modified to be more robust and durable if he so chooses; a minor operation.
There is no need to invoke a medical asylum here.
4.10.2009 4:54pm
mwb (mail):
guesttttt, you are largely correct; b/c pierre was pro se, his original argument was unsophisticated. thus, the third held a supplemental hearing on the exclusive issue of whether 'willful blindness' was sufficient to meet the specific intent standard. there were a number of supplemental briefs and the court requested additional parties to argue at the supplemental hearing. thus, the scope was quite wide, and the supplemental briefing addressed the issue of whether specific intent encompassed 'knowledge of a practical certainty' or was limited to 'motive or purpose.' having observed the process, it is hard not to feel that the bench wanted to overrule Lavira and all avenues for relief it provided. the oral arguments, original and supplemental, indicated that there was a result the majority wanted and, indeed, they got there. i'm not saying that they were wrong, only that the facts and arguments were ultimately of little relevance. even if he had introduced all the extortion and singling out stuff, and nuanced arguments on criminal jurisprudence (as indeed did take place at the supplemental hearing) the result would not have differed, as per my prior comment.
4.10.2009 5:10pm
einhverfr (mail) (www):
mwb:

I think the overruling of Lavira was quite unfortunate in this case. I think there were a number of other questions which could have been asked without seeking to overturn past precedent. These include:

1) Can a self-inflicted injury ever be sufficient to invoke Lavira-type protection? I don't think it should.

2) Is there any reason to think that Pierre's chance of survival would be substantial if he were not imprisoned indefinitely in Haiti? (i.e. it is one thing to argue the Hatian government's complicity in the death but if imprisonment doesn't impact his survivability chance to a reasonable level, it is not relevant to Lavira-style analysis).

3) Does this constitute an unconstitutional death sentence?

IANAL but even in these areas, I would argue:

1) No

2) Irrelevant if #1 is no anyway

3) No.

These answers center on the fact that this is caused by a purposeful, self-inflicted injury. IMO these should be treated differently under the law.
4.10.2009 5:48pm
PeterWimsey (mail):
I think that deliberately depriving Pierre of a feeding tube would meet the definition of torture under the regs. From the regs:

(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.


Obviously there is room for disagreement, but I think that deliberately refusing to provide someone with a feeding tube meets the definition of an "act...by which severe pain or suffering...is intentionally inflicted on a person for such purposes as...punishing him or her for an act he or she or a third person has committed...when such pain or suffering is inflicted... with the consent or acquiescence of a public official."

I believe that many people are making a distinction between suffering inflicted by an act as opposed to suffering inflicted by the failure to act...but I don't really think that that is significant in this context. I think that leaving someone in an unheated cell in the Siberian winter, with only summer clothing, would also constitute torture, even though the only "act" was the failure to provide heating.

To a certain extent, this interpretation is aided (IMO) by the provision in section 2 noting that torture "is an extreme form of cruel and inhuman treatment...". If we accept that "cruel and inhuman treatment" is also part of the definition of torture - which it seems to be, it seems that jurisprudence construing the 8th Amendment's prohibition against "cruel and unusual punishment" might have some relevance in determining what "cruel and inhuman treatment" means. And of course "deliberate indifference" to a prisoner's medical needs is a violation of the 8th Amendment. Now perhaps not all cases of deliberate indifference would constitute "cruel and inhuman treatment" - but refusal to provide a feeding tube resulting in death by starvation would seem to easily meet this test.

And yes, great thread!
4.10.2009 6:23pm
einhverfr (mail) (www):
PeterWimsey:

Out of curiosity, do you end up having to reach the issue of the feeding tube?

Would you agree that punishing someone for life in prison simply for being deported upon conviction (as Haiti does) might be torture in this case? Wouldn't that have the potential to be physically very painful and at the same time cause a great deal of emotional pain and suffering as well?
4.10.2009 6:48pm
mwb (mail):
thoughtful questions, einhverfr &Mr. Winsey.

1) the bench did bring up einhverfr's 2nd point at argument. ultimately, it is irrelevant; there is no claim if no detention. Pierre could die in a ditch the day he arrives in Haiti, but if the state does not detain him, there is no state action, and thus no basis for a claim. the whole thing starts with the decision to take the act and detain him.

2) as re: the death penalty or the 8th amendment in general: there is a provision in the CAT treaty referring to 'cruel and unusual punishment,' but the only relevant provision to deferral of removal is Art III, which is specific to severe pain and suffering. only Art III pertains to the non-refoulment (deportation) part of the treaty. also, remember that aliens have very limited access to the constitution. in theory, all the amendments in some form apply, but in practice, they are usually implicated only so much as they implicate 5th amendment due process. (this is presumably why aliens are dying right and left in immigration detention, which is not subject to the same standards as prison detention.) in theory, one COULD argue that what he will suffer in Haiti is torture b/c it would be torture in the U.S., violative of the 8th amendment. Inadequate medical care of prisoners would qualify as such here. Estelle v. Gamble, 429 U.S. 97, 102 &105 (1976), Wison v. Seiter, 501 U.S. 294, 303 (1991). However, DHS has been successfully argued the 'poverty exception' which is that Haiti is too poor to help it, thus obviating the requisite level of intent. From there, you argue that, well, they don't have to detain them in the first place, b/c they committed no crimes in haiti, or against haitians, and they served a full U.S. sentence already. But then, you get into the specific intent (conscious objective v. knowledge of probably consequences) argument.

Hope that helps make sense of how CAT plays out here!
4.10.2009 7:02pm
einhverfr (mail) (www):
mwb:

1) the bench did bring up einhverfr's 2nd point at argument. ultimately, it is irrelevant; there is no claim if no detention. Pierre could die in a ditch the day he arrives in Haiti, but if the state does not detain him, there is no state action, and thus no basis for a claim. the whole thing starts with the decision to take the act and detain him.


I think it is relevant though. Consider a parallel hypothetical:

A man is seriously ill with a disorder which is treated at great expense here but treatment is unaffordable in his home country. He is going to be deported. He is expected to die within days of returning to his home country. Do we decide these cases on the basis of whether he will be detailed even for a couple of days? Or since detention would be largely irrelevant to his chances of survival do we treat the two of them as the same circumstance?

I think that in this hypothetical case, if there were detention, there would still be a lack of a case of state action because the state action would not be expected to materially affect the subject of controversy. If, on the other hand, suppose we have a case where a relatively poor man is being deported to, say Chad. He claims that he will be imprisoned for an extended time period and that the temperature in the prison will be high enough as to constitute torture. Would this be treated differently if his likely residence would have a similar temperature? Or would we expect a higher standard of living from the foreign government for prisoners vs free individuals?
4.10.2009 7:28pm
byomtov (mail):
Sign me up with those who think that, if I intentionally deny someone the means to *eat*, I'm intentionally killing him.

Me too. IANAL so I don't have the benefit of a 1L explanation of intent. But I don't see how the certain and predictable outcome of one's actions can be regarded as unintended.
4.10.2009 7:42pm
Hervé (mail):
Please allow me to ask a hypothetical question: an alien is so ill that any travel (air/boat/train) will cause with 100% certainty his death. Yet, for whatever reasons, he may no longer reside in the US.
Is the INS allowed to deport him knowing he will not survive the travel? If not, what is the relevant regulation that prevents the INS from deporting individuals who will die because of the deportation?

How is the case of Pierre fundamentally different? Why was the Convention against Torture even brought up in this case? Is it because there are otherwise no US regulations that restrict the power of the INS to deport individuals to their certain death?
4.10.2009 8:30pm
mwb (mail):
byomtov, you've hit the nail on the head; is intent, for this purpose, the "natural and probable cause of one's action," or the "conscious objective?"

As framed by Pierre, the debate is between "motive/purpose" or "knowledge of a substantial certainty". An argument for the alien is that tension between the two should be resolved in light of the objectives of CAT, which is to protect someone from being tortured. The argument for DHS is that specific intent favors resolving tension in favor of the higher level of mens rea.
4.10.2009 8:37pm
dmv (mail):
If nothing else, this thread should demonstrate that Orin should immediately revise his syllabus to spend another day on "intent" in his 1L class. :)
4.10.2009 8:52pm
dmv (mail):
Er, that is, insofar as Orin thinks it's clear as pie, whereas the majority appears to agree that it's not clear at all.
4.10.2009 8:53pm
einhverfr (mail) (www):
Hervé:

Please allow me to ask a hypothetical question: an alien is so ill that any travel (air/boat/train) will cause with 100% certainty his death. Yet, for whatever reasons, he may no longer reside in the US.
Is the INS allowed to deport him knowing he will not survive the travel? If not, what is the relevant regulation that prevents the INS from deporting individuals who will die because of the deportation?


I would be inclined to want to see an analysis in this sort of case which would be very fact-centric. I don't think self-inflicted injuries should be overly protected, for example, because doing so creates a perverse incentive to make oneself a financial burden on the US permanently in order to avoid deportation. I.e. what would we do if other immigrants facing deportation start drinking battery acid in order to gain additional protections?

So, if I were a judge, I would want to know the nature and history of the medical problem, their prognosis with and without deportation, whether a reasonable delay in deportation would result in a difference, whether the condition would be life-long or not, etc. I would also like to know what the reason for deportation was, etc.

Then I would like to see a balance of interest test in place.


dmv:

Er, that is, insofar as Orin thinks it's clear as pie, whereas the majority appears to agree that it's not clear at all.


On the contrary. I think it is clear as pie. At least it is as transparent as most pies I have seen ;-)
4.10.2009 9:27pm
Sagar:
nbdy:
There are only two people we know for sure are in Heaven...both of them convicted criminals executed for their crimes

who is the second person?

(anyone else who might have the answer, please let me know)
4.10.2009 9:43pm
Sagar:
I vote "allow deportation" (other). would have been good to have libertarian as an option.

the guy is responsible for his actions and his current condition. if his medical condition is a result of State action, I would vote for him to stay and receive treatment. but that is not the case.

the law says he goes, and so he goes.
4.10.2009 9:50pm
Leo Marvin (mail):
I'm left of center, I don't think there's a serious legal argument for stopping the deportation, and I think it should be stopped anyway.

On the other hand, I made a bet with myself that within 10 comments someone would have challenged Orin's description of the facts as "tragic." I lost, and for that I'm grateful.
4.10.2009 9:59pm
mwb (mail):
those who would consider whether the reason for the pain and suffering raise an understandable point--they want to avoid creating perverse incentives and keep responsibility on the person for whom the benefit would be bestowed. In deportation ("removal") cases, this typically takes the form in something akin to a hardship waiver or, say, 'cancellation of removal' which involves basically complete discretion by a judge, and/or a sort of balancing test.

CAT, however, is the relief of last resort, intended to apply to even the most despicable individuals. Art III of CAT mandates that we cannot deport anyone who is more likely than not to be tortured. The treaty was designed to apply to those who are otherwise completely ineligible for any other relief, such as former persecutors or the like. So, as long as someone qualifies for CAT, we can't send them back, and this would probably apply to someone whose wounds are self-inflicted. BTW, Pierre didn't down the acid to avoid deportation, he did it to try to kill himself immediately following his despicable act of trying to maim his former girlfriend.

Because we are a signatory to CAT, and we have implemented it through regulations which lay out the requirements for a CAT claim, if someone meets each of those requirements (including the 'more likely than not' burden of proof) then we grant that person the relief of deferral of removal; this means that we can't deport that person until conditions have changed in the country of nationality in a way that indicate that that person is no longer more likely than not to be tortured. Also, there must be a showing that no 3rd country will accept that person. unlike asylum, it is not the basis for affirmative immigration status--it is more like legal limbo.
4.10.2009 10:13pm
einhverfr (mail) (www):
mwb:


CAT, however, is the relief of last resort, intended to apply to even the most despicable individuals. Art III of CAT mandates that we cannot deport anyone who is more likely than not to be tortured. The treaty was designed to apply to those who are otherwise completely ineligible for any other relief, such as former persecutors or the like. So, as long as someone qualifies for CAT, we can't send them back, and this would probably apply to someone whose wounds are self-inflicted. BTW, Pierre didn't down the acid to avoid deportation, he did it to try to kill himself immediately following his despicable act of trying to maim his former girlfriend.


So this seems to come down to a fairly basic disagreement, which is the extent to which a country is fundamentally required to provide medical care to individuals it imprisons, especially where the care involves self-inflicted injuries. Why should the state of Haiti be required to provide additional care because of self-inflicted conditions of the inmates? Would it make a difference if such an individual would not be likely to survive outside of prison anyway?

Now, in the United States, it is true that we define torture to include the threat of imminent death, and this would seem to qualify here. It also seems clear to me that Article III section 2 would seem to be to Pierre's advantage here as well. However, to my mind this may not be sufficient here, or it might. Either way, this sort of thing ought to turn very closely on the facts.

1) Is Haiti capable of providing proper medical care under these standards to all inmates? Are the issues ones of capacity (labor, etc), general unwillingness to accomodate, etc? Was any attempt made to get a guarantee from the Hatian government that a feeding tube would be allowed (not necessarily provided or otherwise accomodated, but just allowed).

2) Are there considerations regarding treatment of the prisoner by other prisoners. These issues seem to be wholely outside the convention which requires at least an acquiescence by a state agent to trigger. Inmates assaulting inmates does not qualify.

3) How much medical care is required under the convention? At what point does a government have the right not to PROVIDE treatment? If someone has AML (a form of leukemia), is it torture if upon release he will be detained without being provided intensive chemo free of charge?

4) If you have a suicidal individual who is being extradited or returned to a country where he/she will be imprisoned, but will not be resuscitated after a suicide attempt, does that count as a threat of imminent death and hence severe mental pain under a US interpretation of the CAT?

This is why I think such analysis needs to be limited to the facts. I think it is reasonable to expect some accomodation for his needs on the part of the Hatians. However, I don't know how much effort the Hatian government needs to be obligated to provide in a case like that in order to meet our understandings of the convention.

If one were to agree to let him stay, I would prefer to do so under the idea that a life in a brutal prison with no possibility of release for a crime like this would be a form intense mental suffering and hence nobody should be deported to Haiti until conditions change. I am seriously uncomfortable with the idea of using a self-inflicted injury as the basis for a decision.
4.10.2009 11:58pm
Hervé (mail):
Assuming the handling of Pierre by Haiti (Haitian authorities, prisons, etc) can not be qualified as torture under the CAT, what about the actions of the INS itself?
Can sending someone to his certain death (with the exception of death sentences pronounced by Courts) be qualified as an act of psychological torture, and therefore be illegal?

As professor Kerr asked in his first message, would it then be only a matter of compassion and power of interpretation in judicial decisionmaking? Or no matter how much we stretch the facts and the law, under current US regulations, a judge can not possibly conclude that the INS decision to send someone to a certain death amounts by itself to an act of torture?
4.11.2009 6:20am
PQuincy1:
While cases like this cry out for some kind of equitable relief, there is a high cost in allowing any desire -- even the desire for equity -- to drive arbitrary interpretations of the words of the law to justify a particular outcome. I'm sure I'm not the only one who believes that the clerical-theological approach to legal interpretation, so common especially in the United States, has serious negative consequences for many individuals and for society at large. (By clerical-theological I mean the same parsing of word meanings that allows theologians to read a text saying "thou shalt not..." to mean "thou shalt when...", or lawyers that "Congress shall pass no law..." to mean "...laws when...").

The problem of interpretation does not go away when one limits intensive parsing, of course, but its contours change.

I also recognize that decrying our system and calling for systemic changes, including ways to authorize specific points in the system to engage in equitable overriding of texts, does Pierre no good whatsoever.
4.11.2009 10:56am
byomtov (mail):
mwb,

Thanks. Two points occur to me wrt this discussion.

First, There seems to be some sort of odd middle ground between our notions of "intentional" and "unintentional," The battle over the meaning of "intent" may be a battle over ownership of this no-man's-land.

My second point is broader. Orin frames the discussion as a question of compassion vs strict adherence to law. In fact, criticism of liberal judges is often based on this apparent dichtomy. But what about vindictiveness vs. strict adherence to law? Isn't it possible to deviate from the law out of vindictiveness as well as out of compassion?

Now, there are certainly good faith arguments for deportation being made here, but when the issues are characterized as "why should the taxpayers support this guy?" and so on, I'd say we've gone into the vindictiveness zone.
4.11.2009 11:00am
ChrisTS (mail):
Guest12345:
It seems that there are many instances of a person somewhere in the world who is starving to death. And most anyone from a developed country could intervene and save that life. And I suspect more often than not there is no intervention. I don't know that anyone is going to travel the developed world accusing everyone of being torturers for their failure to intervene. The fact that this man is in closer proximity doesn't seem to change the moral calculus.


But, these situations are analytically distinguishable. In Pierre’s case, we have a group of agents deciding whether or not to send Pierre to a certain (and dreadful) death. In the case you suggest, we have people deciding whether or not to send aid to others who are already starving. As you note, the latter is a case of choosing to intervene in an existing situation. In Pierre’s case, we are deciding whether to initiate the causal chain that will lead to death.

While I am not fully convinced of the strength of the omission/commission distinction in such cases, I do think we have greater responsibility for events we choose to initiate.
4.11.2009 3:00pm
ChrisTS (mail):
Perseus (mail):
How is moral responsibility related to citizenship? Citizenship is a political, not a moral, category. That ‘Pierre’ is not a citizen of our nation is [largely] irrelevant to any question as to our moral responsibilities to him.

On the contrary, moral obligations vary depending on the closeness of the relationship. Moral obligations are more extensive to those who are closest to us (e.g., friend or family) than to those who are more distant (e.g., neighbor, citizen, non-citizen). So citizenship is a legitimate point of comparison in helping to determine the nature and extent of our moral obligations to Pierre.


Hence, “[largely]”

Besides, even among ethicists for whom relationships affect moral obligation there is considerable dispute as to which relationships are morally relevant and to what extent/in what ways the specified relationships affect obligations.

That Pierre is not a citizen of the U.S. is arguably not morally relevant in the situation in which his future will be determined by the choices of U.S. agents. I certainly do not think it morally dispositive.
4.11.2009 3:03pm
Perseus (mail):
Besides, even among ethicists for whom relationships affect moral obligation there is considerable dispute as to which relationships are morally relevant and to what extent/in what ways the specified relationships affect obligations. That Pierre is not a citizen of the U.S. is arguably not morally relevant in the situation in which his future will be determined by the choices of U.S. agents.

Such argument could be made, though one wasn't really offered. As a political scientist rather than a moral philosopher, I'm extremely skeptical of apolitical approaches to morality.
4.11.2009 5:45pm
ChrisTS (mail):
I'm extremely skeptical of apolitical approaches to morality

Perseus, I don't understand that comment. Or, if I do, I find it disturbing.

Does it mean that one's political commitments should determine one's moral views? Then what is the grounding for the choice of political views? Furthermore, how could such politically-determined views be understood as moral views?

I'm no wild-eyed rationalist, but I do not think selecting moral beliefs to suit one's politics - chosen who knows why - is a either a rational or a genuinely moral approach.
4.11.2009 6:02pm
einhverfr (mail) (www):
ChrisTS:

That Pierre is not a citizen of the U.S. is arguably not morally relevant in the situation in which his future will be determined by the choices of U.S. agents. I certainly do not think it morally dispositive.


One of the interesting elements to this discussion is the intersection of personal morality and the law. Also the issue in this discussion, AFAICS, is the question regarding stretching the existing case law to fit a case. I am not saying I agree with the third circuit's reasoning here, but even if the third circuit abided by their older precedent I am not sure Pierre would have been able to stay.

One element in a judge's obligation here is a very serious moral duty to the tradition of law. This isn't a mindless approach to precedent but a knowledge that what one writes in a case like this will be used to decide future cases. Hard cases make bad law because there is every impulse to stretch the laws and make an exception but those exceptions will end up causing other problems later as courts try to determine the extent of those exceptions. IMO, this moral duty fundamentally supercedes any obligation to Pierre.

So the problem here is trying to determine what an appropriate test is. I could only formulate two possible tests that I thought would be defensible and one was to rule that ALL cruel punishment was torture and hence nobody could be deported to Haiti upon conviction, and the other was to rule that a mere lack of preparation and a lack of commitment to preparation on the lack of Haiti's government to a special or unusual case doesn't constitute torture. If I try to follow the principle of least surprise, I end up with the unavoidable decision that the latter is the correct approach.

I think the duties of a judge to a stable and defensible interpretation of the law is the central moral duty. The question of what is decided affects one individual. The question of what basis underlies a decision could affect thousands.
4.11.2009 7:16pm
ChrisTS (mail):
einhverfr:

I see your point about the judge's duties. As I am not a Kantian, I am able to believe that some role-related duties do trump some universal duties. My original comment referenced the claim by a commenter that he recognized little moral culpability with regard to the painful death of someone not a citizen of his nation.

However, now that you have raised some interesting points, I have to say I think the otpions you describe are too narrow. Why couldn't the court establish some criteria for what would constitute 'torture' in a foreign jail. Don't we, in fact already have such criteria? Allowing someone to die from preventable starvation seems like it might fall under some of our standards.

Now, I'm going to go look up the principle of least surprise. That's a new one for me.

P.S. Do not tell Ron Dworkin that hard cases make bad law. tsk tsk
4.11.2009 7:32pm
einhverfr (mail) (www):
ChrisTS:

Please formulate a test. And yes, I think in some cases, preventable starvation would be torture in a foreign jail. I am uncomfortable using self-inflicted injuries as the basis for such an analysis though.


Now, I'm going to go look up the principle of least surprise. That's a new one for me.


Just my (software engineer) way of summing up consistency controls. Courts usually use stare decises and a host or related principles. Really, it boils down to "the legal system does not serve us well when it is unpredictable."
4.11.2009 8:18pm
CrimLawStudent:
This comment thread is a good example of why the Volokh Conspiracy needs to use a threaded comments feature.
4.11.2009 8:36pm
Jerrod Ankenman:
@Sagar:

who is the second person?

I think the two people are Jesus and the so-called "good thief" executed with him: Saint Dismus
4.11.2009 9:56pm
bob_in_fl:
As all good liberals told us in the Terri Schiavo case, starving someone to death is not torture. Send him back.

Don't like it? Then pay attention next time some right-wing christofascist talks about that "sanctity of life" mumbo-jumbo, and warns where your preferred lefty position will lead. It's possible they actually know what they're talking about.
4.11.2009 10:18pm
ChrisTS (mail):
bob_in_fl:
As all good liberals told us in the Terri Schiavo case, starving someone to death is not torture. Send him back.


Jeesh, why didn't any of us realize that sending a conscious but ill person to a jail where he will starve to death is just like removing feeding tubes from a person who has been in a vegetative state for ... how many years?

Don't like it? Then pay attention next time some right-wing christofascist talks about that "sanctity of life" mumbo-jumbo, and warns where your preferred lefty position will lead. It's possible they actually know what they're talking about.

And, yes, only a 'lefty' would worry about our courts sending someone to die slowly and painfully in the prison system of another country. Unless, of course, the thinking person distinguishes between the two cases.
4.12.2009 1:26am
Soronel Haetir (mail):
So where do you fit if you are fine with the resolution of the Schiavo case and are fine with sending this guy back to Haiti?
4.12.2009 10:07am
Rosinante (mail):
The problem occurs earlier on in the story -- when he is sentenced to jail instead of to death as he should have been.

Detaining someone indefinitely is a cruel punishment and torture, especially when the prisoner has a painful condition. Likewise, not detaining them often means that they kill again.

So, what is 'humane' ? -- and what about the many people who die because of lack of resources that had to be spent on those prisoner's treatments instead of on them?

What, who and how much are we trying to save with out compassion, and from what?
4.12.2009 10:14am
einhverfr (mail) (www):
Rosinante:

What, who and how much are we trying to save with out compassion, and from what?


I think that just about hits the nail on the head. I may disagree with you about trying to sentence someone to death for a one-time attempted murder (where do we draw the line?). However, the final question there is exactly right.

Also my sense that he should be sent back comes from a different perspective on suicide than most of opposition to sending him back. I think that people have a moral right to end their lives whenever they choose. While we might agree that we should try to minimize suicides due to depression, etc. I don't see this as a matter of fundamentally denying a right any more than pushing for more access to birth control limits a right to choose to abort a pregnancy.

I don't think that people who attempt suicide have an inherent right to become public burdens if they fail. And unless we assert a right to life (at public expense) regardless of past attempts to end it, then the fact that this injury was self-inflicted more or less removes it from my analysis of the case (now, if he were to be singled out by authorities and beaten because of it, that might be a different story).

Finally, when the choice is life in prison without parole and the death penalty, I think the death penalty is more humane. I also think that death row inmates have an inherent right to choose to take their own life rather than wait.

So.....

In this analysis, I can conclude one basis for letting him stay (indefinite detention is torture because it causes serious mental pain and suffering), and one for deporting him (the government is under no fundamental obligation to provide life support for folks with serious self-inflicted injuries---failure to provide that life support is not torture).

Hope this helps.
4.12.2009 1:00pm
einhverfr (mail) (www):
Soronel:

So where do you fit if you are fine with the resolution of the Schiavo case and are fine with sending this guy back to Haiti?


Yep.
4.12.2009 1:05pm
ChrisTS (mail):
(link)einhverfr:

I think you have a point about the right to end one's life, but I assume that extends to the means fo doing so. So, provide him with a reasonable alternative way to end his life - alternative to starving to death in a hellhole - and let him choose.

Soronel:
So where do you fit if you are fine with the resolution of the Schiavo case and are fine with sending this guy back to Haiti?


I gather you are consistent according to Bob_in-Fla's analysis of the two cases, but I don't think he will be happy with it.
4.12.2009 4:25pm
ReaderY:
If Justice Stephens is correct, if a judge had such a concept of "compassion", he or she would be basing decisions on religious beliefs in fundamental tension with the founding principles of this country. Surely the duty of immigration professionals,is to ensure the liberty of americans by ridding them of unwanted aliens just as the duty of doctors similarly preserve the liberty of Americans by getting rid of unwanted fetuses.

As Justice Stephens put it,


it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.


Surely Federal judges' duties are at least as strongly based on the protection of constitutional liberties as those of doctors. And surely the exclusion of unwanted aliens is as central to that liberty as the exclusion of unwanted fetuses -- indeed, the Court has held that the right of such exclusion is central to autonomy and self-hood. If compassion truly represents a mere distraction to doctors and the state truly has no legitimate interest in diverting doctors from their obligations to Americans, surely judges have even less legitimate interest interest in such distractions.
4.12.2009 7:37pm
einhverfr (mail) (www):
ChrisTS:


I think you have a point about the right to end one's life, but I assume that extends to the means fo doing so. So, provide him with a reasonable alternative way to end his life - alternative to starving to death in a hellhole - and let him choose.


Only if he asks for it.
4.15.2009 12:29am

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