Outsourcing the Constitution

http://www.nytimes.com/2017/03/01/opinion/outsourcing-the-constitution.html

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So the Trump administration is putting the welcome mat back out for private prisons, just as candidate Donald Trump said he would do, reversing the Obama administration’s policy of phasing them out for federal prisoners. It’s no wonder that shares in some of the nation’s biggest for-profit prison companies soared by double digits the day after the presidential election, making them among the biggest winners in the immediate postelection rally.

A decision on Feb. 21 by the federal appeals court in Chicago came just in time to remind us that privatization is a really bad idea. The United States Court of Appeals for the Seventh Circuit reversed a federal district judge’s dismissal and sent back for trial a case with the most appalling facts, brought by a dead prisoner’s mother against the company to which the Indiana Department of Corrections had outsourced its inmates’ medical care.

The opening paragraph of the opinion by Chief Judge Diane P. Wood tells the story: “Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions.”

Starvation in a state prison? Mr. Glisson was not on a hunger strike. Rather, before his imprisonment, he had suffered from serious medical problems, including cancer of the larynx. Radical surgery and radiation made it difficult for him to swallow, speak or even hold his head up without a neck brace, a device that somehow never made it to his cell. Despite these obvious problems, and despite a letter submitted at sentencing from his doctor warning that he was unlikely to survive in prison, Mr. Glisson, 50, received no medical review or care plan during his first 24 days in custody. After that, although employees of Corizon, the company Indiana entrusted with inmate medical care, noted his alarming symptoms and his increasing emaciation, his care remained disjointed until he was found dead in his bed less than two weeks later.

The Indiana prison system has policies in place to require coordination of care in the treatment of inmates with chronic medical conditions. Corizon, which has contracts in 27 states and is the country’s biggest provider of outsourced prison medical care, didn’t follow those policies. Exactly what went wrong will presumably now come out at trial, unless Corizon settles this case, Glisson v. Indiana Department of Corrections, as it did a case in California two years ago. The $8.3 million paid in the California case to a dead inmate’s family by Corizon and Alameda County was the biggest civil rights wrongful-death settlement in the state’s history.

I have two reasons for focusing on the Indiana case. The first is to show the recklessness of President Trump’s wave-of-the-hand decision to retain the private prisons that a Justice Department study last year concluded “do not maintain the same level of safety and security” as those operated by the Bureau of Prisons. Sally Q. Yates, the holdover deputy attorney general whom President Trump fired last month for refusing to defend his travel ban, relied on that conclusion in announcing that private prison contracts would not be renewed and that the 22,000 federal inmates housed in those prisons would be cut to 14,700 by May 2017 and eventually to zero.

I’ll get to my second reason for writing about the Indiana case shortly, but first a few more facts. The lawsuit was brought by Mr. Glisson’s mother, Alma, seeking to hold Corizon liable for “deliberate indifference” that violated her son’s Eighth Amendment right to be free of cruel and unusual punishment. A Reconstruction-era federal statute known as Section 1983 provides for such lawsuits against municipal agencies and, by extension, private companies doing the public’s essential business.

But the bar for such suits is high. Mrs. Glisson has to show more than mere negligence by Corizon’s employees. Before even getting to the question of whether her son’s constitutional rights were violated, she has to show that Corizon itself had made a deliberate choice — a “policy or custom” — of not maintaining an adequate plan of treatment for prisoners with serious chronic conditions. The trial court, affirmed by a 2-to-1 ruling of a Seventh Circuit panel, held that Mrs. Glisson couldn’t make that case. But the full 10-judge court reheard the case and ruled last week that she was entitled to try. “We are not breaking new ground in this area,” Chief Judge Wood wrote. One egregious incident could be enough, she explained, if it reflected “a conscious decision not to take action” on behalf of “a defined class of prisoners.”

The vote was 6 to 4. This brings me to my second point. On the eve of the Senate confirmation hearing for Judge Neil Gorsuch, President Trump’s Supreme Court nominee, this case is a powerful reminder of why it matters who the judges are. The dissenting opinion, by Judge Diane Sykes, took a breathtakingly crabbed view of the known facts. The dissent treated what happened to Mr. Glisson as a random one-off, so far from suggesting the existence of a constitutional violation that Mrs. Glisson was not even entitled to get the case before a jury. “The plaintiff’s own injury, standing alone, does not permit an inference of institutional deliberate indifference to a known risk of constitutional violations,” Judge Sykes wrote, adding that a plaintiff “must produce evidence of a series of constitutional injuries traceable to the challenged municipal policy or custom.”

It’s almost too perfect that the opposing views of this case were expressed by two federal judges named Diane, each having been a shortlisted candidate for the Supreme Court: Chief Judge Wood during the Obama administration and Judge Sykes, last month, for the nomination that went to Judge Gorsuch. That’s an eye-catching extra, but not the main point. It’s not likely that Judge Gorsuch will be asked to expound on the intricacies of Section 1983 litigation, or that he would answer such a question if a senator thought to ask it. But if we have learned anything in the weeks since Jan. 20, it’s how dependent we are on our judges’ willingness to call out injustice where they find it — under the glare of lights at international airports or in a prison cell’s dark shadows. Compared with the famous cases that will be invoked during the confirmation hearing, the Indiana prison case is small-bore, mundane. But its very ordinariness demands our attention, reminding us that judging is inevitably a mix of law and instinct, and that we need judges with sound instincts more than ever.