"They can't do that, can they?"
"Is that legal?"
That's got to be unconstitutional, right?
These seem like simple questions. Either it's legal/constitutional or it isn't. However, it's not quite that easy. Rather than the expected "Yes" or "No," most of these questions will have to be answered with "It depends
One of the most important features of law is indeterminacy
. No matter how clear a statute
or constitutional provision
may be, there is always a little ambiguity
. And, if there's no built-in ambiguity, it isn't all that hard to create some. This is particularly true when dealing with judicial opinion
is a matter of context.
Corrections Officer Rumsfeld ties inmate Kelly to a pole outside of the prison and keeps him there for 6 hours in 30°C heat without any water, "'Cause I think you're just an asshole."
There are two statutes, 42 U.S.C. § 1983 and 18 U.S.C. § 242, which respectively provide:
42 U.S.C. § 1983 Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
Has Officer Rumsfeld violated either of these statutes?
18 U.S.C. § 242
Whoever, under color of any law, statute, ordinance, regulation,
or custom, willfully subjects any person in any State, Territory,
Commonwealth, Possession, or District to the deprivation of any
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States, or to different
punishments, pains, or penalties, on account of such person being
an alien, or by reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined under this title or
imprisoned not more than one year, or both; and if bodily injury
results from the acts committed in violation of this section or if
such acts include the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire, shall be fined under this
title or imprisoned not more than ten years, or both; and if death
results from the acts committed in violation of this section or if
such acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse, or an attempt to commit aggravated sexual abuse, or
an attempt to kill, shall be fined under this title, or imprisoned
for any term of years or for life, or both, or may be sentenced to
a. Step 1: What do the statutes say?
Before we can know whether Officer Rumsfeld violated § 1983 or § 242, we have to construe the language of the statutes in order to make the question more specific.
(i) § 1983
§ 1983 provides for civil liability for a "person" who
1. under color of any
This means that Officer Rumsfeld will be liable to inmate Kelly (1) if tying Kelly to the post in the sun for no good reason deprives Kelly of a right, privilege, or immunity "secured by the Constitution and laws" of the United States and (2) Officer Rumsfeld was acting "under color of" State law.
statute, ordinance, regulation, custom, or usage,
State, Territory, or the District of Columbia
2. subjects / causes to be subjected
3. a citizen of the U.S. or another person within its jurisdiction to:
deprivation of any rights, privileges, or immunities secured by the Constitution and laws
(ii) § 242
18 U.S.C. § 242 makes it a crime to
1. willfully (mens rea)
Thus, the § 242 question will be similar in most ways to the question sketched above for § 1983, with two major exceptions. First, there is an intent (or mens rea - criminal state of mind) requirement that is not present in § 1983; no matter what else is true of Officer Rumsfeld's actions, they must be in willful violation of Kelly's federal rights. Second, unlike § 1983, § 242 also criminalises race and nationality discrimination in meting out punishment (other discrimination was not prohibited because the statute was enacted just after the Civil War)
2. subject any person in any State, Territory, Commonwealth, Possession, or District
(a) to the deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States
(b) different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens
3. under color of State law
b. Step 2: What Exactly Does That Mean in This Case?
Now that we have broken down the statutes to figure out what they say, we still have to figure out whether any of the very general language ("any right, privilege, or immunity") prohibits anything that Officer Rumsfeld did to Kelly. Both § 1983 and § 242 interlock with a substantial body of law. First, we must identify what provisions of the Constitution Rumsfeld could have violated. In order to save space, I will spare the reader the process of going through the entire Bill of Rights to figure out what might have been violated. Suffice it to say that the analysis is basically the same. And so, we narrow the question further.
Since Kelly is a state prisoner, serving out a sentence imposed based on a conviction for a crime, his principal source of protection is the Eighth Amendment. The new, improved question now is:
Did Officer Rumsfeld, by tying inmate Kelly to a pole outside of the prison and keeping him there for 6 hours in 30°C heat without any water, "'Cause I think you're just an asshole," subject Kelly to "cruel and unusual punishment" in violation of the Eighth Amendment, while acting "under color of State law?"
We're closing in on it now. At this point, the § 1983 question hinges completely on the meaning of "cruel and unusual punishment." Having narrowed the field to this extent, we must fill in the outline we're left with. The Eighth Amendment prohibits " 'unnecessary and wanton' inflictions of pain [constituting cruel and unusual punishment forbidden by the Amendment] [including] those that are 'totally without penological justification.' " Rhodes v. Chapman, 452 U. S. 337, 346. An officer in a correctional institution acts unnecessarily, wantonly, and without penological justification if the officer acts with "deliberate indifference" to the inmates' health or safety, Hudson v. McMillian, 503 U. S. 1, 8. Deliberate indifference can be inferred from the fact that the risk of harm is obvious, Farmer v. Brennan, 511 U. S. 825.
Having set up the analytical framework we need in order to answer the § 1983 question, the next step is analyse the element peculiar to § 242 - "willfulness." The "willfulness" requirement of § 242 was glossed by the Supreme Court in Screws v. U.S.
[A]s we have seen, the word 'willfully' was added to make the section 'less severe'. We think the inference is permissible that its severity was to be lessened by making it applicable only where the requisite bad purpose was present, thus requiring specific intent not only where discrimination is claimed but in other situations as well. We repeat that the presence of a bad purpose or evil intent alone may not be sufficient. We do say that a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.
325 U.S. 91, 104. So, in order for Officer Rumsfeld to violate § 242, he would have to have the "specific intent" to violate Kelly's Eighth Amendment rights. This may seem somewhat hard to prove. Things would be much easier if Officer Rumsfeld had at some point said "Stick the Eighth Amendment up your ass," but, alas, he did not. However, a later case has made things easier. In U.S. v. Lanier, 520 U.S. 259, a judge was convicted of violating § 242 when he sexually assaulted several women who were parties to cases before his court. The Supreme Court upheld the conviction, holding that "[t]]he easiest cases don't even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.' " 520 U.S. at 259, slip op. at *26 (internal quotations omitted). As long as it's obvious that a corrections officer can't tie up a prisoner and leave him in the heat for several hours just because he doesn't like him, the "willfulness" requirement is satisfied.
As the examples above demonstrate, answering any of the questions we began with requires a multi-layered thought process
. First, we have to find any statutes that might come into consideration. Second, we have to break down the language of the statute and figure out what each bit means. The third step is to look for judicial opinions that have dealt with similar cases: what was the result and how did they reach it? Finally, we take the framework we've built up by examining the statute(s) and applicable decisions, and see if it fits the facts.