WNTTAK 1: A weak attempt at weakening the Eighth Amendment

Here's a hypothetical: having decided that you are a bad person, I throw you into a pit full of venomous snakes. I didn't put the snakes there—I have no idea how they got there—but I knew about the snakes when I threw you in the pit. You get bitten by several of the snakes and, because I didn't throw any anti-venom down with you, you die. Did I kill you?

Kevin Newsom says no.

A few months ago,^[1] the Eleventh Circuit released its en banc opinion in Wade v. McDade. The majority opinion (Newsom, J.) is notable for its simplification of the Eleventh Circuit’s confused precedents about the elements of an Eighth Amendment deliberate-indifference claim. But what’s more interesting (to me, at least) is the concurrence (Newsom, J., concurring) and the angry response it inspired from Judge Newsom’s more liberal colleagues (Rosenbaum and Jordan, JJ., concurring).

The case

David Henegar lived at Walker State Prison in Rock Spring, Georgia. While incarcerated, Henegar was diagnosed with epilepsy, which was treated using a drug called Dilantin.^[2] Due to a “breakdown in communication” among prison medical staff, Henegar went without his Dilantin for a four-day period in 2016. He suffered a series of seizures that left him with brain damage.

Henegar sued various prison officials and nurses on the theory that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted summary judgment for the defendants, concluding that, because Henegar failed to identify any binding cases sufficiently similar to his own in which the court had found an Eighth Amendment violation, it was not clearly established that failing to provide him his epilepsy medication violated that Amendment. Henegar’s sister, Betty Wade, appealed.^[3]

And this is where the case took an odd turn. Appellate courts can, of course, affirm a district court’s decision for any reason supported by the record,^[4] but as a matter of course, they review the district court’s decision and, if they agree with its reasoning, they say so. And in qualified immunity cases, courts (district and appellate) tend to prefer to decide on the second prong (whether the right in question was clearly established) rather than the first (whether the right was violated).

But the Eleventh Circuit panel didn’t do that. Instead, in a 29-page majority opinion, Judge Newsom decided the case on the first prong, concluding, defendant by defendant, that none of the Walker State Prison officials had violated Henegar’s rights. By deciding the case on the first prong, Judge Newsom isolated the more fundamental (and more interesting) question of the scope of a prisoner’s Eighth Amendment right to adequate medical care.

This was a calculated decision. Qualified immunity cases are almost always easier to decide on the second prong, because doing so requires only that you point out that no binding Eleventh Circuit or Supreme Court decision compels the conclusion that the defendants’ conduct was illegal.^[5] And deciding these cases on the second prong is more faithful to the Supreme Court’s command that lower courts avoid constitutional questions where it is possible to decide the case on other grounds.^[6] And Judge Newsom was not shy about why he chose to do this: his majority opinion spends six pages describing the “jumble” of Eleventh Circuit precedents on the issue—citing a handful of published cases requiring prisoners to show their medical providers acted with “more than mere negligence” and another handful saying that the standard was “more than gross negligence.”

Judge Newsom (joined by Judges Luck and Tjoflat) decided that the latter standard was correct, and that, to show that his medical care violated the Eighth Amendment, a defendant must show (1) an objectively serious medical need; (2) that the defendant actually knew about the risk of serious harm; (3) that he disregarded that risk; and (4) that he acted with more than gross negligence. But more importantly, his opinion teed the case up for en banc review by isolating the constitutional question and highlighting the dissonance in the court’s precedents.

Unsurprisingly, Judge Newsom’s colleagues took the hint. In a unanimous opinion (written by—who else—Judge Newsom), the Court adopted a similar, but simpler test. The court said to make an Eighth Amendment claim based on inadequate medical care, a prisoner must show (1) “a deprivation that was objectively, sufficiently serious,” (cleaned up) and (2) that the defendant acted with “subjective recklessness as used in the criminal law.” And to meet the latter element, the prisoner must show that the defendant was actually aware that his own conduct caused a substantial risk of serious harm to the plaintiff.

Judge Newsom’s concurrence(s)

But what if Judge Newsom had another motive in teeing this case up for en banc review? At both the panel- and en banc-stages, Judge Newsom concurred in his own majorities. Both concurrences (which I will talk about together because the later opinion is an almost verbatim reprint of the earlier one) Judge Newsom articulated what might, at first glance, seem like a reasonable interpretation of the Eighth Amendment. “[T]he Eighth Amendment,” Judge Newsom tells us, “by its plain terms, applies only to ‘punishments.’” And the word “punishment”—now and in 1789—“denote[s] an element of intentionality.” What’s more, the Eighth Amendment limits “not just ‘punishments’ simpliciter, but their ‘infliction,’ a term that likewise indicates purposeful, directed conduct.” (cleaned up). This focus on intentionality, Judge Newsom says “would seem to preclude any legal standard that imposes any liability for unintentional conduct, no matter how negligent . . . or even criminally reckless.”

Judge Newsom decries the Supreme Court’s decisions, going back 50 years, that impose Eighth Amendment liability on conduct that is merely reckless. Because recklessness, he says, is something less than intentional conduct. And the Eighth Amendment only addresses the intentional infliction of punishments. This kind of reasoning is one of the great marvels of textualism. Citing a handful of centuries-old dictionaries and a few law-review articles, Judge Newsom says we need think no further. It’s obvious, on its face, right?

No doubt, Judge Newsom’s real motivation in encouraging his colleagues to take the case en banc and in writing these concurrences is not merely to offer academic rethinking of the Eighth Amendment. He is talking to the Supreme Court, and encouraging the Court’s more radical elements to revisit the doctrinal basis of the deliberate indifference. So it’s worth considering whether his argument makes any sense.

So let’s return to the question we started with: having decided that you are a bad person, I throw you into a pit full of venomous snakes. I didn't put the snakes there—I have no idea how they got there—but I knew about the snakes when I threw you in the pit. You get bitten by several of the snakes and, because I didn't throw any anti-venom down with you, you die. Did I kill you?

Let’s make it a little closer to the circumstances presented in Wade: I, the warden of a prison, am dealing with an extremely tight budget and I decided to gut the prison medical staff. As a result, you routinely do not receive medication you need to treat HIV. And I have failed to provide cleaning and medical treatment necessary to keep infections out of the general prison population. I did not do this with any thought at all toward your specific medical need. That is, I did not make this decision with an intent to punish you. By Judge Newsom’s reasoning, I have not violated the Eighth Amendment, despite that I have made the conditions of your confinement such that you will surely die of pneumonia.

As with all debates over the meaning of vague constitutional provisions, this really comes down to a debate over the level of generality at which we apply the Constitution’s rules. Judge Newsom says that we must look to whether each particular defendant intended to ‘inflict’ a ‘punishment’ upon you. But as Judge Rosenbaum points out, “it fits oddly within our system of separated powers to think of prison officials as having an independent intent to punish their wards.” The legislature determines what conduct should be punished. The judiciary determines what sentence to impose. The executive maintains the standards of the prisons. The whole of the state is, in every case, engaged in the ‘infliction’ of your ‘punishment.’ That is, your ‘punishment’ is that you are imprisoned. And in almost all cases, that ‘punishment’ is inflicted by the confluence of actors that comprise the state. So if we go just one level deeper than Judge Newsom’s facile concurrence, its flaw becomes obvious: all terms of imprisonment are punishments intentionally inflicted; no one is ever put in prison by accident.

That leaves us with only one question: is that punishment cruel and unusual? And that question can only be answered by reference to the conditions of the prisoner’s confinement. A Norwegian prison—with its private showers, internet access, and personal televisions—is surely less cruel (though, in the American context, maybe more unusual) than Joe Arpaio’s open-air concentration camps. A prison where one is provided medication to treat his epilepsy or his HIV is surely less cruel and more usual than one where neither is provided and the prisoner is left to suffer or die. It is exactly this insight that led the Supreme Court—dull as they are compared to Judge Newsom—to conclude that it is the conditions of confinement that compose the punishment, not the mere fact of the sentence itself.

Those conditions necessarily include the treatment a prisoner receives at the hands of the prison guards, and the Eighth Amendment imposes on the state a duty to ensure that this treatment is not cruel and unusual:

[C]ruelty inheres not only an action’s physical effects but also its emotional content. Everyone—and maybe especially a prisoner—knows the difference between an accident and the type of deliberately indifferent conduct revealing a deep disregard for his basic wellbeing. When that disregard comes from someone who is both responsible for and in control of another’s health, it can only be described as cruel. Indeed, the message sent by a prison guard who repeatedly ignores his ward’s pleas for necessary medical attention is not unlike the one the torturer sends to his victim upon the rack: “I see your pain but I don’t care.”

But this also shows why prison officials’ actions need not be intentional to be cruel and unusual. Imprisonment punishes by substituting control for liberty. Ordinarily, that control is accompanied by some degree of care, including medical care. But when one’s captor opts not to provide necessary and available medical care, he turns the punishment of imprisonment into a cruel one—regardless of his purpose or intent in not providing treatment. After all, what difference does it make to the prisoner whether the official who controls his wellbeing intends him to suffer or simply does not care if he does? Either way, his outcome will be the same, and there is little he can do to change it. And the prisoner will, by state mandate, remain dependent for his basic needs on someone who is at best indifferent to those needs. To impose upon someone that sort of existential uncertainty is cruel and unusual; when the state does it to a prisoner, it is cruel and unusual punishment.

Judge Rosenbaum’s reasoning also led me to a second critique—one that did not occur to me when I first read Judge Newsom’s concurrence at the panel stage: even assuming that Eighth Amendment liability requires some culpable mental state by the prison-official defendant, the deliberate indifference standard meets this requirement. The en banc majorities articulation of the standard (which, to be clear, is plenty forgiving to prison officials) requires that the defendant actually know that his action or inaction is likely to cause serious physical harm to his victim. If I throw you into the pit vipers, knowing that you will likely die, who will stand up and argue that I did not intend your death? If I know that you are HIV+ and leave you unmedicated, knowing you will likely die of pneumonia, in what meaningful way have I not killed you?

Elsewhere on the internet

Daily Show, Jon Stewart on What Went Wrong For Democrats, Youtube (Nov. 11, 2024): The most succinct takedown I’ve seen of the developing consensus that Kamala Harris lost because the Democrats ran too woke.

Oral Argument, Delgatti v. United States, No. 23-825 (U.S. Nov. 12, 2024): As is the annual tradition at the Supreme Court, it’s time to decide whether some statute constitutes a “crime of violence" as that term is defined in 18 U.S.C. § 924(c). Specifically, the petitioner (Delgatti) is arguing that New York’s second-degree murder statute does not qualify as a “crime of violence” because it can be committed by omission (e.g., by failing to provide life-saving care when one is under a legal duty to do so) and, thus, does not require the “use, attempted use, or threatened use of physical force against the person or property of another.” I’ll probably write about this case in more length down the road, but the short version is: this should be a lay-up for the petitioner, and, after listening to oral argument, it seems like he’s going to get there (Gorsuch, Roberts, plus the liberals).

Saturday Night Live, Charli xcx: Sympathy is a knife (Live) - SNL, Youtube (Nov. 17, 2024): A palate cleanser from a second week of annoying political news. Charli xcx finishes out brat summer with a high energy performance of Symphathy is a knife featuring only her on stage.

Slate Political Gabfest, The “Attorney General Matt Gaetz?” Edition, Slate (Nov. 14, 2024): The first segment, about Trump’s picks for his cabinet, is skippable, but in the second segment, Caitlin Dickerson explains the legal and logistical steps that the Trump administration is likely to take in order to hit Trump’s promised 1 million annual deportations. Depressing, terrifying, but worth listening to.