When Jose Luis Garza was arrested for threatening his brother during an intoxicated argument, his mother begged the police to keep watch of him. "I'm afraid of him hurting himself," she told the arresting officer early one morning in February of 2016.
Watchfulness did not ensue. Despite his mother's warnings, the local jail in the border town of Donna, Texas, took no mental-health precautions. Instead, in the hours after Garza covered the camera in his cell with wet paper towels, no one checked in on him. Sometime after 8 a.m., guards noticed Garza's increasingly distressed wailing and banging on the cell doors, but did not investigate his condition. (Much later, a jailer added an entry to the hourly cell-check log for this time, but whether any took place is disputed.)
During that time, the jail staff was preoccupied with sign-making, working to produce tongue-in-cheek placards to decorate the facility. "Welcome to the Donna Hilton," one read. Another sported the vigilante skull from the Punisher comic books. It was only after Immigration and Customs Enforcement officers arrived at the jail for unrelated purposes that Garza's body was discovered. He'd hanged himself by his T-shirt tied to the bars of his cell door. No one had any idea how long he'd been hanging.
Garza's family felt that the town of Donna bore some responsibility, and sued. The Fifth Circuit Court of Appeals disagreed, ruling late last month that the city was not liable for his death by suicide. "Whatever we may think of the various DPD [Donna Police Department] employees' actions," the court wrote, "it is apparent that the record cannot support municipal liability on this basis."
Suicide is the leading cause of death in jails. The jail suicide rate was 50 per 100,000 inmates, compared to the rate of 13 suicides per 100,000 people across the entire United States population, in 2014, the most recent year with available data from the Bureau of Justice Statistics. Despite the empirical links between incarceration and suicide, an obstacle course of prisoner-unfriendly legislation and legal doctrines stand in the path of attempts at holding any individual person or institution accountable. Over the past two and a half decades, these legal barriers have made reforming prison conditions via litigation nearly impossible.
Most lawsuits brought on behalf of those who die by suicide or are otherwise harmed while incarcerated claim violations of the Eighth Amendment: that the reckless neglect of the prisoner's mental health and safety constituted "cruel and unusual punishment." For those suits, "the key is demonstrating deliberate indifference," says Fred Cohen, a federally appointed court monitor of Arizona prisons, and former law professor at the State University of New York at Albany's School of Criminal Justice.
Deliberate indifference is a more difficult to prove than "professional negligence," the standard used for medical malpractice. The negligence standard only requires that a person should have done something, and didn't—ignorance isn't an excuse; deliberate indifference, in contrast, requires knowing that something should have been done, and not doing so. It does not, however, require proof of intent to harm. So a prisoner's family need not show that prison guards specifically meant for the prisoner to die. Nevertheless, they must show not only that correction officers failed to do what was necessary to prevent a prisoner suicide, but that the officers knew that the prisoner was at risk, and still deliberately avoided clearly established standard procedures for dealing with them.
"There has to be more than a hint that a person was suicidal or at risk. You have to have knowledge that there's a high degree of likelihood that this man would commit suicide. And then you have to fail to take any precautions that are designed to be preventative," Cohen says. "They don't have to be the best precautions. But they have to be kind of reasonable. If you knew, you did try to do something."
Deliberate indifference is a "relatively new legal term," according to Cohen. It first appeared in Thurgood Marshall's 1976 Supreme Court opinion in Estelle v. Gamble, which ruled that medical malpractice in prisoner health care was not cruel and unusual punishment. J.W. Gamble was unloading bales of cotton for a prison labor assignment, when one fell on him, injuring his back and cardiovascular system. Instead of receiving proper medical treatment, he was placed in solitary confinement, which exacerbated his conditions. He sued, arguing that his negligent treatment was an Eighth Amendment violation. The Supreme Court later ruled that only "deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment."
Since then, the deliberate indifference standard has been applied widely in cases involving the custodial obligations that jails and prisons have to their inmates—especially with regard to sexual assault, medical care, and suicide. The Supreme Court established a new standard—"protection from harm"—with their 1994 ruling in Farmer v. Brennan, says Michele Deitch, an expert in correctional oversight and prison and jail conditions at the University of Texas, and a former federal court monitor.
Dee Farmer was a trans woman serving a prison sentence in Indiana who was repeatedly beaten and raped, and consequently acquired HIV, when she was housed with the male prisoners in general population. Farmer argued that the prison knew it was putting her at risk with this housing situation, and that its deliberate indifference to the danger was a form of cruel and unusual punishment. The Supreme Court ruled that Farmer, and all prisoners, were entitled to be protected from "deliberate indifference" to their harm. This standard of liability became a central precedent for suicide cases, but has proved difficult for prisoners to meet. During a subsequent lower court retrial, a jury received Farmer's testimony with skepticism, finding that her jailers had not been deliberately indifferent. She served 11 more years before earning compassionate release due to serious AIDS complications.
In recent years, Cohen says, proving jails to be liable for prisoner suicides and assaults has gotten even tougher due to the increasing prominence of qualified immunity doctrines, which protect government institutions and their employees from liability when a relevant standard procedure has not yet been established. "It's always been difficult for plaintiffs to win custodial suicide cases. It's even more difficult now because of qualified immunity doctrines, which are damn complicated to understand."
Qualified immunity is an ancient common law concept, with origins in the sovereign right of total immunity afforded to kings. "A king could do no wrong 'immune from suit,'" Cohen says. Jails are not totally immune from suits, but can receive partial immunity—say from claims of an Eighth Amendment violation, if they haven't implemented a suicide prevention policy. "You don't want to hold someone liable for something that they didn't know they were supposed to be doing," Deitch says. "But qualified immunity is a huge barrier to bringing lawsuits, no question about that. It's very, very hard to overcome that."
Both qualified immunity and deliberate indifference are troubling doctrines for prisoners, Deitch says, because they "create the perverse incentive for agency officials to stay unaware of what's happening in their own facilities and of what the best practices are, and to stay untrained on these topics." If a jail that screens for suicide or assault risk is more likely to be held liable if a prisoner dies by suicide then jails might not want to take preventative measures that are in prisoners' interests.
"It incentivizes not taking reforms on your own initiative," Cohen says "and it's too bad that [prisoners] have to wait for litigation."
Since deliberate indifference and qualified immunity doctrines make it very difficult for a jail or guard to be held liable in any specific suicide, a creative activist lawyer might want to make a structural case, arguing, for example, that the way a state's jails operate constitutes deliberate indifference to a system-wide suicide risk. These sort of cases are nearly impossible to bring today. But back in the '70s and '80s, they succeeded regularly.
Decades ago, many circuit court cases—in states including Texas, Alabama, Georgia, New Mexico, and Arkansas—scrutinized all the incarceration facilities across a state for systemic issues, and often resulted in court-imposed changes and oversight. Deitch's position as a court monitor of Texas' prisons was the result of a 1972's Ruiz v. Estelle, which ruled that Texas statewide prison conditions were a form of cruel and unusual punishment. "The courts would look at what they called 'the totality of the conditions of confinement,'" Deitch says. "But those days are long gone; you can't bring those kinds of cases anymore."
The main hindrance is the 1996 passage of the Prison Litigation Reform Act, a sweeping law infamous for limiting the ability of prisoners to file lawsuits and of courts to remedy violations of prisoner rights. Perhaps best known is its requirement that prisoners must "exhaust" their facility's grievance procedures (a prison's administrative system for raising complaints) before filing a lawsuit—procedures that are often rigged against them. But the law also constrains judges' ability to take on structural cases looking at the "totality of conditions," and limits the remedies they impose to three years. "This is literally the only area of law carved out that says judges can't do certain kinds of remedies," Deitch says. "Suffice it to say, it's very, very hard to use litigation as a reform strategy nowadays."
But, in the face of all those doctrinal and legislative impediments to accountability for prisoner harm, Deitch maintains that conditions are improving—mostly thanks to greater awareness of the issue. She cites the Sandra Bland case as a major turning point, as well as improved training nationwide, and some new legislation concerning mental illness in jails and prisons passed in states like Florida. "Litigation shouldn't ever be the starting point for reform," Deitch says. "It can't get you to some ideal. All it can do is make sure a very, very low bar of constitutional minimum is met."