Academic Study of Prison Guards’ Use of Excessive Force Details Sad State of Civil Rights for Abused Prisoners
In a research paper published on October 15, 2024, UCLA law professor Sharon Dolovich examined the state of civil rights law regarding excessive use of force by American prison guards and concluded that the current standard is woefully inadequate to protect prisoners from abuse or permit redress once excessive force is used against them.
As Dolovich noted, the current standard, first set out by the Supreme Court of the U.S. (SCOTUS) in Whitley v. Albers, 576 U.S. 312 (1986), requires prisoners to prove that they were subjected to force used “maliciously and sadistically.” In other words, it must be shown that the guard subjectively knew that the force he used was unconstitutionally excessive and then used it anyway. This subjective standard is nearly impossible to prove and “defers almost entirely to the [guards’] own judgments as to when force is necessary,” Dolovich said.
Six years after deciding Whitley, SCOTUS reaffirmed the standard in Hudson v. McMillan, 503 U.S. 1 (1992), expanding it to include all circumstances in a prison setting, not just a riot as in Whitley. This remains the standard for prison excessive force claims.
In Kingsley v. Henderson, 576 U.S. 389 (2015), SCOTUS examined excessive force against jailed pretrial detainees and rejected the Whitley standard. Rather than proving “cruel and unusual punishment, in violation of the Eighth Amendment,” those not convicted of a crime need prove that they were impermissibly punished without the due-process protection guaranteed by the Fourteenth Amendment. Thus they need prove only that the force used against them was “objectively unreasonable,” or more than a “reasonable” guard would use.
The Kingsley Court noted the tension between its standard and the Whitley standard, and this “seemed to signal an openness on the part of five Justices to reconsidering” the earlier ruling. However, a “marked rightward shift” since then “has largely extinguished the possibility,” Dolovich said; as a result, “there remains today a striking doctrinal divide, with Kingsley’s objective unreasonableness standard governing Fourteenth Amendment excessive force claims brought from jail, and Whitley’s ‘maliciously and sadistically’ standard applying to Eighth Amendment excessive force claims brought from prison.”
Dolovich pointed out that even the Kingsley standard is inadequate to protect prisoners or ensure them compensation; despite showing that he was beaten and tasered while restrained and compliant, the jury on remand still found in favor of the defendant guard. Jurors had been instructed to apply the Kingsley standard to their deliberations but, as Dolovich noted, they had not been instructed on a guard’s duty to protect prisoners from harm.
Given the lack of such instructions and the tendency of both guards and jurors to dehumanize prisoners, Dolovich concluded that adopting the Kingsley standard would not ensure preservation of prisoners’ right not to be subjected to excessive force, nor their opportunity to be compensated if they are. See: Excessive Force in Prison, 114 J. Crim. Law and Criminology 415.
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