Archive | Eighth Amendment

Prisoner Offshoring, or Gaolbalization

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be [...]

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A Rare Decision Holding a Potential Life Sentence To Be “Cruel and Unusual Punishment”

Despite the Court’s recent decisions limiting life sentences for juvenile defendants, generally speaking it’s very rare for courts to hold that sentences other than death sentences constitute “cruel and unusual punishment.” But State v. Proctor (Kan. Ct. App. July 6, 2012) so holds, in a way that seems likely to affect many similar cases in Kansas (and perhaps in other states that have similar schemes):

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation. Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation. For Proctor, a man in his early 20’s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.

Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system. We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment … for persons convicted of designated sex offenses who then commit property crimes. For Proctor, the disparity between

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Justice Sotomayor Votes to Review and then Reverse Pro Se Prisoner Case Lower Courts Found “Patently Frivolous”

Today Justice Sotomayor authored what strikes me as a rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order. What is it about this pro se prisoner case that grabbed Justice Sotomayor’s attention, and led her not only to say that she would have granted the case, but to announce that she would have voted in the inmate’s favor?

Let’s take a look.

Pitre is an HIV-positive inmate in the Louisiana state prison system who has been prescribed medication to treat his HIV. In 2008, he was transferred to a particular corrections facility, the Phelps Correctional Center, where inmates apparently have to do hard labor. Pitre decided to protest the transfer by refusing to take his HIV medication. Pitre was then made to do hard labor like the other inmates in the facility, and he has been really struggling to do the work given his illness and his failure to take his medication. Pitre complained that the state was making him do harder labor than he could do given his illness, in violation of his constitutional rights. The state responded that Pitre was bringing it on himself because he was refusing to take his medication that would enable him to do the work. In effect, each side blamed the other: Pitre blamed the state for making him work when he was in such bad shape, and the state blamed Pitre for refusing to take his medication so that he was in such bad shape in the first place.

The magistrate judge agreed with the state’s view, and recommended that the case be dismissed as “patently [...]

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