Excessive Force in Custody and the Rights of the Untried

While Baltimore erupts, the Supreme Court considers a timely case.
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Protest at the Baltimore Police Department Western District building. (Photo: Veggies/Wikimedia Commons)

Protest at the Baltimore Police Department Western District building. (Photo: Veggies/Wikimedia Commons)

Car-fires continue to smoke and smolder in Baltimore after Freddie Gray’s death in police custody set off a series of protests and riots this week. Gray died from a spinal injury he sustained after his arrest; the protesters see his death as the latest example of excessive use of force by police officers against a civilian. It’s still unclear how Gray was injured, but many critics are blaming a so-called “rough ride” in the back of a police van without a seatbelt—a practice that has injured and even paralyzed arrestees in the past.

Meanwhile on Monday, just miles away from Gray’s funeral, the Supreme Court was hearing arguments in Kingsley v. Hendrickson, a case about what legal protections people have with regard to excessive force in jails. In 2010, when Michael Kingsley was awaiting trial on a drug charge in a Wisconsin jail, he refused a guard’s orders, and was handcuffed, beaten, and Tased. When he sued them, the guards argued that their use of force was not objectively “reckless” under the circumstances, because he was resisting them, and dangerous. But Kingsley countered that the violence was subjectively “unreasonable.”

"Even if we acknowledge that pre-trial detention is necessary for reasons of public safety or flight risk, there is no reason that pre-trial jail conditions should have to resemble the conditions in prisons."

It gets complicated, but at issue here is what legal standard should apply after someone has been arrested for a crime, but before he or she has been actually tried for it. Technically speaking, “In Kingsley’s view, the appropriate standard is objective, like the Fourth Amendment excessive force standard applicable to people who are free,” Richard Re explained on SCOTUSblog. “The jail officers, by contrast, argue that the appropriate standard is subjective, like the Eighth Amendment standard applicable to convicted prisoners.”

That is, should pre-trial detainees have the same rights as free citizens walking down the street because they are innocent until proven guilty? Or do they occupy a different status, with more limited rights, as people incarcerated in prison do?

Paul Clement, the attorney for Kingsley’s jailers, argued the latter. Because the context is so different, the guards inherently have a different responsibility to civilians than, say, police officers do—and as such should be allowed a slightly different margin of error, he told the Court on Monday. “[T]he fact of incarceration really is a game-changer,” Clement said. “When you’re in the incarceration context, things are different.... The need to protect the other inmates from a potentially violent person doesn’t have the same kind of direct analogue when something’s unfolding on the streets.”

To this, Justice Elena Kagan countered: “But there’s another potential game-changer as well, and that is this question of have you actually been convicted? Has the legal system found that you’re a person who is a wrongdoer?” Earlier, she had also made the point that, in many cases, the only reason someone would be in jail awaiting trial rather than out walking on the streets is because he or she hadn’t been able to make bail. The ACLU has made that same point, writing in a brief for Kingsley that “many pretrial detainees are in jail simply because they are poor.”

If our current system sorts and separates pre-trial detainees by their ability to pay, then wouldn’t it make just as much sense to sort and separate prisoners by their guilty, or innocent-until-proven-guilty, status?

That’s an argument that continues to interest criminal justice experts and prison reform advocates. “Since pre-trial detainees have not yet been convicted, it seems incomprehensible why they should be treated as if they have been,” wrote Indiana University criminal justice professor R.L. Lippke in the journal Res Publica last year. “Individuals not yet convicted of crimes should not be treated like those who have been, even assuming that contemporary forms of imprisonment can be justified.”

Lippke argued that, even if we acknowledge that pre-trial detention is necessary for reasons of public safety or flight risk, there is no reason that pre-trial jail conditions should have to resemble the conditions in prisons. He wrote:

In fact, given their status as not-yet-convicted of anything, it seems clear that they should be kept in very different facilities—more like decent hotels than squalid local jails. Nothing about the preventive function of pre-trial detention requires individuals to suffer cramped living quarters, near complete loss of privacy, isolation, poor quality food, or predation by other detainees.

(“Or predation by their jailers” was left unsaid.)

If bestowing a different set of constitutional rights on pre-trial detainees and convicted prisoners is controversial, one wonders what tough-on-crime advocates would make of the idea of putting people up in “decent hotels” to await their trials. Or consider the article in the International Review of Law and Economics last year, in which two law professors from the University of Valencia, Spain, weighed the pros and cons of monetarily compensating pre-trial detainees for their trouble if they are later found to be innocent.

Both of the above options are probably long shots, however united and dedicated to criminal justice reform our political leaders claim to be at the moment. But perhaps there is a happy medium between hotel rooms and apology checks on the one hand and unnecessary violence on the other.

True Crime is Lauren Kirchner's weekly column about crime and criminal justice issues.

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