Tuesday, May 31, 2011

Confronting the 'Grim' Reality of California Prisons

      The surprise in the Supreme Court’s ruling in the California prison case is not the decision by five justices to uphold an order requiring the release of about 30,000 prisoners over the next five years. The surprise comes from the votes of the four dissenters to leave the appalling conditions in the state’s prisons largely unaddressed.
      The majority opinion in Brown v. Plata by Justice Anthony M. Kennedy, a Californian, paints a damning portrait of the consequences of the state’s housing as many as 156,000 inmates in 33 facilities with a designed capacity of only 80,000. The crowding is not merely uncomfortable, but it is surely that: prisoners sleeping in triple bunk beds; 200 prisoners living in a converted gymnasium; 54 inmates sharing a single toilet.
      More to the point, the overcrowding overwhelms the prison system’s capacity to provide medical and mental health care to inmates with deadly consequences. Kennedy notes some of the victims of medical non-care. One inmate died of testicular cancer after doctors failed to diagnose the condition despite the inmate’s complaining of testicular pain for 17 months. Another inmate, suffering from severe abdominal pain, died after a five-week delay in being referred to a specialist. Another prisoner, suffering from extreme chest pain, died after eight hours passed without an evaluation by a specialist. Another inmate died of renal failure after being given medications that actually exacerbated his condition.
      The deaths are not merely anecdotal. Statistics for the two years before the trial of the case in 2008 showed that 66 inmates succumbed to “preventable deaths” in 2006, 68 in 2007 — one preventable death every five to six days in both years. The number was “extremely high,” according to testimony by the former medical director for Illinois prisons.
      The deaths included suicides at nearly double the average rate for prisons. The court-appointed special master concluded that nearly three-fourths of the suicides resulted from inadequate assessment, treatment or prevention — and, in that sense, were “most probably foreseeable and/or preventable.” By 2010, there was no sign of improvement in suicide prevention.
      The picture of mental health care was especially damning, with wait times for care ranging as high as 12 months. Suicidal inmates were sometimes held for prolonged periods in a telephone-booth sized cage without toilets. One inmate, unresponsive and nearly catatonic, was held in such a cage for 24 hours, standing in his own urine, because, according to prison officials, they “had no place to put him.”
      Routine medical care is routinely inadequate. Inmates with urgent care requests are seen only after a delay of two weeks or longer. When one prison was checked, only one-third of 300 inmates requesting urgent care had any appointment scheduled at all. Inadequate medical care in overcrowded facilities resulted, inevitably, in a high rate of infectious disease.
      The inadequacies in medical care result from inadequate facilities and inadequate staffing. Medical staff work out of converted storage rooms, closets, and bathrooms. The state has not budgeted for sufficient medical staff, but fell short even of its budgeted understaffing: a 20 percent vacancy rate for surgeons, a 54 percent vacancy rate for psychiatrists.
      “The medical and mental health care provided by California’s prisons,” Kennedy concluded, “falls below the standard of decency that inheres in the Eighth Amendment. The extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”
      The dissenting justices either minimize or wish away these problems. Instead of a prisoner-release order, Justice Samuel A. Alito Jr. says the prison system should hire more medical staff, get more supplies and equipment, keep better records, and improve sanitary procedures — as though the prison system had not tried. Chief Justice John G. Roberts Jr. joined Alito’s opinion.
      In his dissent, Justice Antonin Scalia, joined by Clarence Thomas, suggests that the only inmates entitled to be released are those shown to be currently suffering from inadequate medical care. The remedy overlooks the inevitable delay in documenting and adjudicating the level of undertreatment needed to be entitled to release. More broadly, as Kennedy notes, Scalia’s solution overlooks the fact that healthy inmates are not “remote bystanders” in the overtaxed medical care system, but the system’s “next potential victims.”
      The dissenting justices are willing to accept half measures because they fear the public safety consequences of moving 30,000 inmates out of the prison system. But they exaggerate the fears. First, many of the inmates will now be sent to county jails, not put out on the streets. Second, overcrowding can also be reduced by not returning parole violators to prisons. Third, expansion of good-time credits and diversion of low-risk offenders to community programs would have little if any impact on public safety.
      Even under the terms of the lower court’s order in the case, California prisons would still be housing 37.5 percent more inmates than they were designed to hold. The current overcrowding results from Californians' law-and-order binge — think of the state’s “three strikes” law — combined with their refusal to pay for the facilities and services needed to provide inmates with medical and mental health care.
      In his dissent, Alito said he feared a “grim” result from the prisoner-release order. The Supreme Court majority was right to be more concerned with doing something about the grim present.

Monday, May 23, 2011

How to Judge Computer Searches at the Border

      Justice Antonin Scalia does not believe in a “living” Constitution. But 10 years ago he led a closely divided Supreme Court in reaffirming, in a context the Framers could not have imagined, the central provision of the Fourth Amendment: to protect “the right of the people to be secure in their persons, houses, papers, and effects, from unreasonable searches and seizures.”
      In United States v. Kyllo (2001), Scalia wrote for a 5-4 majority that federal agents violated the Fourth Amendment by using — without a search warrant — a high-tech device called a thermal imager to measure the heat in a home that they suspected was being used as an indoor marijuana garden. In rejecting the government’s effort to reinstate the defendant’s conviction, Scalia reasoned that exploring the details of a private home that would previously have been unknowable without a physical intrusion amounted to a Fourth Amendment search, presumptively unreasonable without a warrant.
      Scalia’s 21st-century fidelity to the Fourth Amendment may be tested again when an important issue slowly developing in the lower courts reaches the justices. The issue: how far can the government go at the border in searching the electronic devices that travelers, citizens or not, bring with them from abroad?
      The traditional rule for border searches is that most anything goes. The government does not need probable cause, reasonable suspicion, or even an educated guess to conduct a thorough search of a traveler’s “person” and “effects” before allowing the traveler into the country. To search for drugs, one court ruled, the government can dismantle an automobile’s gas tank. To search for illegal immigrants, another court ruled, the government can stop and search a vehicle as much as 100 miles or more from the border.
      First under President George W. Bush and now under Obama, the government has invoked this authority to make travelers’ laptop computers pretty much fair game at the border. Policy directives for the two federal border protection agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), authorize agents to seize and search computers or other electronic storage devices for a matter of days. If necessary, the computers can be taken to a location far from the border to allow experts to conduct a complete search of the contents.
      To be clear, these searches go beyond the airport screening to guard against explosive devices hidden in computers’ innards. Transportation Security Administration (TSA) agents do not look at, much less read, whatever information a traveler has stored in the computer’s memory.
      At the border, however, more than 6,500 people have had their computers subjected to more thoroughgoing searches over the past two years, according to a report published last week [May 18] by the bipartisan Constitution Project. In a 12-page
, the group’s Liberty and Security Committee — with members spanning the ideological spectrum from left to right — called on the Department of Homeland Security to discontinue border searches of laptops except with reasonable suspicion of wrongdoing.
      Had the Framers only known, they surely would have included laptop computers, smart phones, and personal digital assistants within the definition of “effects” presumptively protected from the government’s prying eyes. Today’s computer-toting travelers may bring with them a mother lode of personal or business-related information in which they have, as the legal jargon goes, a “reasonable expectation of privacy.”
      Some lower federal courts have balked at giving federal agents free rein for border searches of computers. Unfortunately for civil libertarians, cases testing the government’s authority so far tend to involve an unsympathetic class of defendants: child pornographers.
      In one case, San Franciscan Andrew Hanson had his computer searched months after he returned home in January 2009 from a trip to Seoul, South Korea. A customs agent, tipped off by Hanson’s nervous behavior, seized the computer and turned it over to forensic experts, who eventually found a cache of child pornography. In June 2010, U.S. District Court Judge Jeffrey White ruled that the delayed searches, without a warrant, violated Hanson’s Fourth Amendment rights.
      In another, convicted sex offender Howard Cotterman had to turn over his computer at a U.S. border station in Arizona in April 2007. A passport check showed that Cotterman was on a watch list based on a 1992 for sexual molestation of a child. A search conducted two days later at a government office 170 miles away turned up, as in Hanson’s case, a trove of child porn. U.S. District Court Judge Raner Collins ordered the evidence suppressed, but in a 2-1
on March 30 the Ninth U.S. Circuit Court of Appeals disagreed and reinstated charges against Cotterman.
      In its report, the Constitution Project says the second-level computer searches ought to require something other than an agent’s hunch. For a U.S. citizen, the standard should be reasonable suspicion that the computer has illegal material or evidence of illegal activity; for a non-citizen, reasonable suspicion that the traveler has been involved in illegal activity. In either case, the group says there should be further restrictions to protect business secrets or privileged information. Those tests, the group says, give sufficient deference to law enforcement needs while preserving Fourth Amendment protections.
      The Supreme Court may not get the issue any time soon. But when it does, the case will be a good test of how the justices — and Scalia in particular — enforce a right cherished by the Framers in a setting they could never have foreseen.

Monday, May 16, 2011

Politics, Not Law, Driving Health Care Challenges

      President Obama won the lottery last week when three Democratic-appointed judges were randomly picked to hear the first appellate-level arguments in the constitutional challenges to the 2010 health care law. The two hours-plus of arguments before the Fourth U.S. Circuit Court of Appeals in Richmond, Va. [May 10], left observers and listeners — the audio is available on line, here — with few doubts that the panel will uphold the law, including its most controversial feature: the individual health insurance mandate.
      Obama was not so lucky the next day when a predominantly Republican panel was randomly picked for the next appeals court argument, scheduled for June 1 before the Sixth Circuit in Cincinnati. The two Republican appointees on the three-judge panel include Jeffrey Sutton, a conservative star both before and since his appointment to the bench in 2003 by President George W. Bush.
      If those two courts go the same way that lower court judges have gone so far, the health care law will be getting thumbs up from Democratic-appointed judges and thumbs down from Republican appointees. Out of five lower court rulings on the merits so far, three Democratic appointees have upheld the law, two Republican appointees have struck it down.
      Cynics will say this pattern proves that the legal challenges are all about politics. Events outside the courts suggest this cynicism is well justified. The constitutional argument against requiring individuals to buy health insurance emerged only when a Democratic president and a Democratic-controlled Congress enacted it into law. Indeed, within days of the Fourth Circuit’s arguments, two of the Republicans seeking the 2012 presidential nomination found themselves explaining away their past positions in favor of an individual health insurance mandate.
      As governor of Massachusetts, Mitt Romney proposed and won enactment of a state law that included an individual health insurance mandate. As president, Obama pointed to the Massachusetts law as a model for the law that Congress eventually passed.
      Today, Romney – who is one step away from a formal announcement in the race – is trying to explain how the Massachusetts law can be good public policy but Obama’s is not. “Our plan was a state solution to a state problem,” Romney said in a May 12 speech at the University of Michigan. “His is a power grab by the federal government to put in place a one-size-fits-all plan across the nation.”
      As a political argument, Romney’s position is just barely plausible. As constitutional law, however, Romney’s position is squarely at odds with the position being advanced in the court challenges to the federal law. If Massachusetts can enact a health insurance mandate, clearly the federal government can as well.
      A few days later, former House Speaker Newt Gingrich, the first of the major GOP hopefuls to officially enter the presidential race, likewise had to try to reconcile his previous stands endorsing an insurance mandate with his criticism of Obama’s law as “a centralized health dictatorship.” In his book Real Change (2008), Gingrich wrote: “Finally, we should insist that everyone above a certain level buy coverage (or, if they are opposed to insurance, post a bond).”
      Appearing on NBC’s Meet the Press on May 15, Gingrich stood by his position that “all of us have a responsibility to help pay for their health care.” But he insisted that “most libertarians” would be “relatively happy” with a law that gave individuals the option to post a health care bond instead of requiring them to buy health insurance.
      As with Romney’s argument, Gingrich’s explanation is just barely plausible in political terms. As constitutional law, however, the difference between a health-care bond mandate and a health insurance mandate seems inconsequential. Either requires individuals to participate now in financing a health care market in which they will inevitably participate.
      That was the essence of the Obama administration’s argument before the Fourth Circuit panel. “Health care is being purchased every day,” acting solicitor general Neal Katyal said. “The question is how to finance it.”
      All three judges seemed to agree on Congress’ authority to try to solve that problem. In the most pointed exchange, Judge Andre Davis confronted Mathew Staver, representing Liberty University in the case, Liberty University v. Geithner, with the question how to pay for emergency care for the uninsured. Does Congress have no power, Davis asked, “to address in the aggregate what happens in this country every day?” Staver had no answer other than to repeat his view that Congress had no power to regulate what he called “non-economic inactivity.”
      Virginia’s solicitor general Earle Duncan Gechtell had an even harder time in the second case argued on Tuesday, Virginia v. Sebelius. Katyal forcefully attacked Virginia’s legal standing to bring a court case based on passage of a state law that simply refuses to enforce the federal statute. A state could just as easily pass a law to oppose the war in Afghanistan or Social Security taxes, Katyal said. When Gechtell agreed, the judges were openly incredulous.
      The appeals court arguments are, of course, only the second of preliminary rounds in a case that the Supreme Court will ultimately decide. There, Republican appointees hold a 5-4 majority over Democratic-named justices. The court’s challenge will be to shut out the political noise and decide the case on the law.

Monday, May 9, 2011

No Stopping Point for Defense of Torture

      Nearly a century and a half after the fact, Robert Redford has renewed the debate, in his movie The Conspirator, over whether the government was right to prosecute and execute Mary Surratt for conspiracy in the assassination of President Abraham Lincoln.
      Historical debates over wartime policies like this one are peculiarly durable because the legal and ethical issues are so stark and the stakes so high in getting the answer right or wrong. So decades from now, Americans will still be debating whether the U.S. government under President George W. Bush was right to use torture against some number of “high-value” detainees in the so-called global war on terror.
      The debate, which has gone on inconclusively since the first disclosure of the Bush administration’s “enhanced interrogation techniques,” resumed last week after the killing of al Qaeda’s founder and leader Osama Bin Laden [May 1]. Former vice president Dick Cheney and former Justice Department official John Yoo, among others, re-emerged into public view to credit the success in the decade-long hunt to the former administration’s policies, including what Yoo called “tough” interrogation techniques.
      The Bush alumni’s argument rests on one dot out of the many that were connected only after years of painstaking intelligence gathering and surveillance. Writing in the Wall Street Journal (May 4), Yoo contends that the key to the success was learning the identity of Bin Laden’s trusted courier, known as Abu Ahmed al-Kuwaiti, from two al Qaeda detainees subjected to the tough interrogation: Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.
      The argument has several weak spots. First, al-Kuwaiti’s identity apparently was first gleaned not from KSM or al-Libi, but from Hassan Ghul, a detainee captured in Iraq, held at a secret CIA prison, and, yes, subjected to some coercive interrogation. Ghul’s information was “the linchipin,” one U.S. official told the Associated Press, but he did not put the courier in direct contact with Bin Laden. Second, by this account KSM and al-Libi helped identify al-Kuwaiti and his significance not by answering questions but by refusing. Their determined silence about al-Kuwaiti convinced CIA agents they were on to something.
      Whatever KSM and al-Libi said or did not say about al-Kuwaiti, critics of the Bush administration policies emphasize that the clues came not during or immediately after their rough treatment, but some time later. The time interval, they contend, shows that conventional interrogation yielded the crucial information, succeeding eventually where waterboarding did not.
      The reply to that argument: waterboarding is not designed to elicit information in the moment, but to secure cooperation later. That reply has a flaw as well: it would prove that torture — once applied — always “works” whenever useful information is obtained later regardless of the methods used.
      For now, the arguments are raging without a full disclosure of the facts and circumstances surrounding the KSM and al-Libi interrogations or the intelligence and surveillance that ensued. Writing in The New Republic (May 5) , lawyer and law professor Joseph Marguiles, a leading critic of and litigator against the Bush administration detention policies, called last week for President Obama himself to confirm whether torture was used to find Bin Laden or not.
      Marguiles reviews the authoritative but contradictory statements issued after Bin Laden’s death by presumptively knowledgeable current or former officials. Jose Rodriguez, head of the CIA’s counterterrorism center from 2002 to 2005, tells Time that the “lead” information definitely came from KSM and al-Libbi. Sen. Diane Feinstein, the California Democrat who heads the Senate Intelligence Committee, says “none” of the intelligence came from what she called “harsh interrogation practices.”
      History suggests that this argument will continue even after (if?) the facts are fully laid out. But facts are unnecessary to expose the overarching flaw in defending torture based on Bin Laden’s death. The argument simply has no stopping point.
      Pressed with the legal and ethical arguments against torture, defenders of the practice resort to the “ticking time bomb” hypothesis. A prisoner with information about some large and imminent threat to life and limb, the argument goes, should be questioned without restraint until the information is divulged. The hypothesis is more the stuff of fiction than of real life, but in any event does not fit the hunt for Osama Bin Laden.
      In hiding somewhere, Bin Laden was a threat, but not a ticking time bomb. Nor was the torture of second- or third-level operatives close enough in time or place to match the hypothesis. And to defend the use of torture to track down Bin Laden is to suggest that the same techniques could be applied to track down al Qaeda’s next leader — and the next and the next until the war ends. .
      As history, The Conspirator plays loose with some of the facts, but the liberties do not detract from the film’s lesson that Surratt should have been tried in a civilian instead of a military court. Whatever the facts in the hunt for Bin Laden, the lesson to draw is that the best stopping point for the use of torture, in line with American law and values alike, is before it ever begins.

Monday, May 2, 2011

Arbitration: Good for the Goose, but Not the Gander

      For years, business groups have been touting to consumers the supposed advantages of arbitration over litigation to settle disputes. Arbitration is quick, easy, and inexpensive, they say. Those advantages, they say, explain why so many companies now specify in consumer contracts that disputes are to be resolved in arbitration instead of in courts.
      It turns out, however, that arbitration may be good for the consumer goose, but not so good for the business gander — at least not if consumers are allowed to join together to settle the dispute through the same type of classwide proceeding allowed in courts. Business groups were upset when the California Supreme Court ruled in 2005 that companies could not ban classwide arbitration in standard consumer contracts. They urged the U.S. Supreme Court to nullify the rule when the justices took on a case last year challenging it.
      Last week [April 27], the Roberts Court gave business interests another victory by ruling that federal law supersedes the California rule. By a 5-4 vote, the conservative majority set aside principles of strict statutory interpretation and federalism to hold that, under the Federal Arbitration Act, states cannot override on grounds of unconscionability a business-imposed consumer contract that bans classwide arbitration.
      The ruling in AT&T Mobility v. Concepcion stems from a complaint by a California couple, Vincent and Liza Concepcion, that AT&T charged them an undisclosed $30.22 in sales tax for the supposedly “free” cell phone they got as part of a service contract. They filed a suit against AT&T in federal court in San Diego, charging the company with false advertising and fraud. The suit was later consolidated with a class action on behalf of other AT&T customers subject to the same alleged overcharge.
      AT&T invoked the arbitration clause in the cell phone contract — probably just like the clause you never bothered to read when you signed up with your carrier — to take the case out of the courts. The contract specified that claims could be brought only in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.”
      California has a general law that prohibits or limits the enforcement of any contract or contract term that was “unconscionable at the time it was made.” In 2005, the California Supreme Court applied that law by a 4-3 vote to nullify a ban on classwide arbitration in Discover Bank’s standard agreement with credit-card holders.
      Under the Discover Bank rule, a ban on classwide arbitration is unconscionable and unenforceable if applied to disputes that predictably involve small amounts of damages and if imposed by the party with “superior bargaining power” as part of a scheme to cheat large numbers of consumers out of small amounts of money. In that circumstance, the California justices ruled, the waiver becomes “in practice” an exemption for the company’s responsibility for its own fraud.
      In the AT&T case, the company argued that California’s rule ran afoul of the Federal Arbitration Act, a law passed in 1925 to overcome judicial hostility toward arbitration. The act specifies that an arbitration clause in a maritime or commercial contract “shall be valid, irrevocable, and enforceable” except “upon such grounds as exist at law or in equity for the revocation of any contract.”
      On its face, California’s Discover Bank rule seems to fit the federal act’s “savings clause” for a generally applicable ground for revocation of contracts. But, in an opinion by Justice Antonin Scalia, the Roberts Court conservatives discovered otherwise. California’s rule would have a disproportionate effect on arbitration agreements, Scalia said, was therefore preempted by the federal law.
      In reaching that conclusion, Scalia conjured up a parade of horribles that would result if companies were forced into arbitration proceedings against a class of consumers instead of the lone disgruntled customer. A classwide arbitration, Scalia said, would not be the “efficient, streamlined” procedure, informal and inexpensive, best suited for these small disputes. Worse, he explained, with limited judicial review, a company would not want to risk “a devastating loss” in a classwide arbitration and would instead be “pressured” into settling questionable claims.
      The limited judicial review in arbitration is precisely why consumer groups feel customers are disadvantaged by standard arbitration clauses in consumer contracts. Admittedly, AT&T’s agreement included consumer-friendly terms, including a provision that the company would pay a fixed amount, $7,500, if an arbitrator’s award was greater than the company’s final offer.
      Still, as Justice Stephen G. Breyer pointed out for the liberal dissenters, AT&T was free to settle the Concepcion’s complaint at any point by ponying up $30.22 — leaving all other customers on their own and the company free to continue the allegedly fraudulent practice. Breyer also argued that Scalia exaggerated the difficulties of classwide arbitration — the American Arbitration Association does prescribe rules for classwide proceedings — and the potential advantages for a company to resolve the issue once and for all.
      As Breyer argued in dissent, the majority invoked policy, not precedent, in a decision that overrode states’ role in interpreting and enforcing arbitration agreements. “We do not honor federalist principles in their breach,” Breyer wrote in a pointed conclusion. For the majority, however, California’s consumer protection stance was merely an “obstacle” to a ruling that — like others from the Roberts Court — gives business interests relief from effectively being called to account for alleged wrongdoing.