The present Supreme Court, led by Chief Justice William Rehnquist, has modified nearly all of the rights granted prisoners under the Warren court (1953 -- 69). Mr. Rehnquist, whom I suspect serves as technical advisor for television's Night Court , was appointed to the court in 1972 by Nixon and named Chief Justice by Reagan in 1986. Rehnquist has consistently voted against expanding prisoner rights and has sought to reconstruct the historical iron curtain that, prior to the Warren court, always existed between the constitution and the American prisoner.
It would be difficult to understand the relative regressiveness of the Rehnquist court without understanding the historical evolution of prisoners' rights.
I have structured this evolution in what I call the four R's: Revenge, Repentance, Rehabilitation, Regression.
There was a time when Dante's phrase for the gates of hell -- "Abandon hope, all ye who enter" -- would have been an appropriate inscription to have placed at the gates of America's prisons. In the eighteenth century, new York's Auburn Prison employed the "silence system"; prisoners were not permitted to even speak to one another, the Bible was the only permissible reading material and prisoners ere encouraged to be repentant. The word "penitentiary", in fact, derives from "penitent," the penological prescription prisoners were expected to fill. Prisoners, of course were stripped of all civil rights and suffered total civil death.
In researching prison related cases, I "discovered" this case in Ruffin vs. Commonwealth (1871), which reflected a judicial attitude that persisted well into the twentieth century. The Virginia Supreme Court declared: "As a consequence of his crime, the felon forfeits not only his liberty, but also his personal rights, except those which the law in its humanity affords him...He is for the time being the slave of the state."
The Supreme Court was established in 1789 and it was not until 1941 that the court interfered with prison officials -- for the first time on behalf of a prisoner.
Cleio Hull, a Michigan prisoner, had attempted to file a writ of habeas corpus with a federal court and prison authorities intercepted the writ to determine if it was "properly drawn." The court ruled: "Whether writ is properly drawn or what allegations it must contain are questions for that court alone to determine..." Officials may not abridge prisoner's rights of access to the courts. Later courts were to interpret 'access' to mean the right of jailhouse lawyers to help other inmates ( Johnson vs. Avery 1969); the right of state inmates to sue state officials in federal court ( Cooper vs. Pate 1964); the ruling that adequate law libraries must be established in all U.S. prisons ( Bounds vs. Smith 1977) absent other alternatives.
The liberal egalitarian legacy of the Warren court began in 1956 in the case of Griffin vs. Illinois in which the court ruled that indigent prisoners must be provided with free transcripts for purposes of appeal. Justice Black, writing the majority opinion, observed: "There can be no equal justice where the kind of trial a man gets depends on how much money he has."
Before the Warren court, the criminal justice protections of the Fourth, Fifth, Sixth, and Eight Amendments did not apply to state criminal trials; they only applied to federal prosecutions. The Warren court literally made the constitution available to the poor, the underprivileged, the prisoner.
In Johnson vs. Avery the court invalidated a Tennessee State Prison rule prohibiting the activities of jailhouse lawyers.
Avery was handed down in 1969 and Justice Fortas held: "the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain behind prison walls. The average prisoner is, effect, denied access to the courts unless such help is available.
In recognizing First Amendment rights of convicts, the court considered also the First Amendment rights of persons to whom convicts were writing. Justice Marshall, in characteristic eloquence, observed in Procunire v Martinez (1972): "A prisoner does not shed basic First Amendment rights at the front gate...whether an O'Henry writing his stories in a jail cell or a frightened young inmate writing his family, a prisoner needs a medium for self-expression."
Justice Powell added: "Communication by letter in not accomplished by act of writing words on paper. Rather, it is effected only when the letter is read by the addressee."
In Bounds vs. Smith (1977), the court ordered the states to either establish "adequate law libraries" in all prisons or provide inmates with persons trained in the law. The states opted for the former as being the least costly. Bounds also holds that inmates at state expense must be provided with paper, pen, notarial services, stamps, and prisoners may not be charged for docket or filing fees. Rehnquist, a Republican -- meaning he understands little that hasn't happened before -- wrote that convicts, once they have had a direct appeal, have no constitutional right of access to the courts or to mount collateral attacks on their convictions.
Fortunately, Marshall and a slim majority prevailed: "Even most dedicated trial judges are bound to overlook meritorious cases without benefit of an adversary presentations... Moreover, if the state files a response to a pro se pleading, ...without a library, an inmate will be unable to rebut the state's argument.
Bounds of course, did not provide an immediate panacea. A law library is one thing, for laymen to utilize it is quite another. A clear majority of America's convicts are poorly educated; many are semi-literate, and not a few possess the study habits of Curly, Moe and Larry.
In Turner vs. Safley (1987), the Rehnquist court made clear its view of the prison community and the rights of prisoners when the court held that the proper standard for determining whether a prison regulation claimed to infringe on an inmate's constitutional rights is valid, is to ask whether the regulation is "...reasonably related to legitimate penological interests."
The court has armed corrections officials with a convenient catch-all clause that enables authorities to bar any inmate activity (claiming "detriment to security") or censoring political publications deemed "inflammatory."
This "Turner test" will -- given the overwhelming conservative majority of the current court -- be applicable to prison issues well into the twenty-first century.
The court used the Turner test to restrict "radical" publications in a federal prison. In Thornburgh vs. Abbott (1989), the court ruled that an inmate can be prevented form receiving any publication if it is "...detrimental to the security, good order, or discipline of the institution, or it might facilitate criminal activity."
In Washington vs. Harper (1990), the Supreme Court handed down its most dangerous decision: Prison officials may force psychiatric drugs into unwilling inmates.
In 1800 when the Supreme Court moved to Washington, D.C., the honorable justices ere so little regarded they were given temporary quarters in the Old Senate Building in an area once used as a janitorial storage room. And for the duration of one full term the Untied States Supreme Court actually met in a tavern.
When I consider Washington vs. Harper , I'm convinced the court still meets in a tavern.
In 1990, while the country was distracted by flag burning and its resulting constitutional controversies, the court handed down Harper , which went virtually undiscussed in both the electronic and print media.
Walter Harper, an inmate in the Washington State Prison system, was several times sent to the state's Special offender Center, although Harper, convicted of armed robbery, has never been adjudged insane or incompetent. He was forced to take a series of antipsychotic drugs -- sometimes called "psychotropics" or "neuroleptics" -- that included Trialofon, Haldol, Prolixin, Tarcatan, Loxitane and Navane. These drugs serve to alter the brain's chemical balance and often produce serious side effects. One of the most serious of these side effects is tardive dyskinesia, a neurological disorder, irreversible in some cases, and found to have a frequency rate of ten to twenty-five percent.
Tardive dyskinesia, according to a brief submitted to the court by the American Psychiatric Association, is chiefly characterized by uncontrollable movements of facial muscles.
Justice Stevens, dissenting in Harper , in part, wrote: "the court has undervalued respondent's liberty interest and has concluded that a mock trial before an institutionally-biased tribunal constitutes 'due Process' of law...Every violation of a person's bodily integrity is an invasion of his or her liberty. The invasion is particularly intrusive if it creates a substantial risk of permanent injury or premature death."
Harper surely destroys the noble concept contained in Stanley vs. Georgia : "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
The court's provision that only a psychiatrist can order forced medication would be amusing if it were not so dangerous. Prison personnel often employ psychiatric "medication" in modifying the activity or energy level of inmates deemed "undesirable." Prison medical staffs are rarely blessed with humanitarians who choose to work in a prison because they are driven by a need to administer to the planet's poor and pitiful. They are all too frequently people who posses neither the ability nor initiative to work "out-side" where their performance and efficiency would be subject to close constant scrutiny.
The court reversed its own ruling in Vitek vs. Jones and perfectly conveys the regression of the Rehnquist court. Vitek held: "A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement, but it does on authorize the state to classify him as mentally ill and to subject him to involuntary treatment without affording him additional Due Process protection.
There are tow dangers inherent in Harper . One is the possibility the ruling may extend far beyond prison walls; to sanitariums, nursing homes and hospitals. Forced drugging of the citizenry is not an impossibility. The second danger is the door it opens to medical experimentation and experimental "medical" techniques like aversion therapy, electo-convulsive shock and psychosurgery.
Can one imagine anything more horrible that Orwell's 1984? Yes. It is a group of American prisoners who have been electrically or drug-conditioned to smile rapturously as pictures of Rehnquist or Jesse Helms are flashed on a screen.
I have known many condemned men in the prisons of California, Louisiana, Arizona and Nevada. I have worked as a death row clerk and I have studied more death transcripts than I care to recall. Like most mortals, the phenomenon of death fascinates me, and I have long considered the legalities of the death penalty.
I oppose capital punishment because we do not have the capacity to make the death penalty "fair" -- as the Supreme Court deluded itself it could be made "fair" in Furman vs. Georgia . Here "capacity" is the operable word. In a capitalist society, cash is the colossal catalyst.
If two persons are charged with capital crimes, one wealthy, one poor, the quality of justice immediately changes. The wealthy defendant can post bail, hire the attorney(ies) of his or her choice, retain investigators, employ experts to testify for the defense, and postpone the trial indefinitely. The indigent defendant will sit in jail, unable to post bail, and will be represented, invariably, by a public defender who is either inexperienced or burdened by a staggering caseload. These are the simple concrete conclusions of economics. I am not interested in the trite moralistic arguments advanced for or against capital punishment nor the vacuous veneer of religious rhetoric; I'm a paralegal, not a priest or philosopher.
Lewis E. Lawes, former warden of New York's Sing Sing prisoner, wrote: "...not only does capital punishment fail in it's justifications, but not other punishment in the way it is applied to the rich and to the poor. The defendant of wealth and position never goes to the electric chair or gallows..."
Former Attorney General Ramsey Clark, wrote: "It is the poor, the sick, the ignorant, the powerless and the hated who are executed."
In researching a book-in-progress about the history of capital punishment in the U.S. -- from the executions of Sarah Good and Sarah Osburn during the Salem Witch Trials of 1691-92 to Ted Bundy's 1989 execution in Florida -- I have compiled data on 562 legal executions. I have found but five cases wherein those executed were persons of affluence or influence -- and two of these were "convicted" atom spies Julius and Ethel Rosenburg.
Finally, is the Supreme Court itself an unquestionable authority in such a life and death issue? Hardly. The court is in a state of flux, new justices do come and go. It is possible the Rehnquist court will lead us back to the appalling period of Palko .
In 1935 Frank Palko was convicted in a Connecticut court of killing a police officer. The jury found him guilty of second-degree murder and sentenced him to life in prison. The state, however, was unhappy with the punishment, and the D.A. appealed on errors prejudicial to the prosecution. The Connecticut Court of Error (was there ever a court more aptly named?) agreed and ordered a new trial. Palko objected on the Fifth Amendment's ban of "double jeopardy." Palko had a point. But Palko was retried and this time Palko was sentenced to death. He appealed to the Supreme Court.
The Supreme Court ruled that Palko was legally sentenced to die because -- are we ready, folks? -- the Fifth Amendment did not apply to the people of the states.
Justice Benjamin N. Cardozo, writing the majority opinion in Palko, observed: "The Fifth Amendment is not directed to the states, but solely to the federal government." The Constitution begins, "We the people..." What people? The people of Paraguay?
Frank Palko was eventually executed and thirty-two years later Palko was over-ruled in Benton vs. Maryland wherein the Warren court declared, "...the double jeopardy clause is fundamental to the American scheme of justice and should apply to the states...in so far as it is inconsistence with this holding, Palko vs. Connecticut is overruled.
Frank Palko will be happy to hear that.
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