CONTINUED
A
strong desire to reduce caseloads
undoubtedly is a driving force behind many recent decisions dealing
with
criminal law and suspects' and prisoners' rights. It explains how
courts could conclude that it is not a constitutional violation for a
state
to execute an innocent person, or that decisions of trial judges not to
depart downward from sentencing guidelines are unreviewable, or
that
it is possible for a constitutionally protected zone of privacy to
exist
that does not include protection against routine body cavity searches
of
persons awaiting trial. Taken collectively these decisions
reveal a judiciary that has moved steadily toward an aggregated,
empirical
approach to justice, and away from individualized justice.
It is often
difficult to determine the degree to which
docket management concerns affected decisions in particular
cases.
Most judges understand that justice is supposed to be individual; they
cannot, without embarrassment, justify decisions primarily on the basis
of serving docket management goals. Never will a judge be so candid as
to write in her opinion, "Plaintiff loses despite having the facts and
the law in his favor because I am convinced that a decision for the
plaintiff
will encourage too many less worthy lawsuits." When hunting for
evidence
of cases in which docket management concerns were controlling, it is
usually
necessary to look beyond the four corners of judicial opinions.
It
is necessary to look at the briefs of litigants, caseload statistics,
and
patterns of judicial decisionmaking.....
The Fifth
Circuit's "significant injury" requirement
was fashioned in response to the rising tide of civil rights lawsuits
filed
by prisoners. In a one-year period ending March 31, 1991,
prisoners
filed 24,905 civil rights lawsuits in the federal courts; in the Fifth
Circuit alone, 3,355 such suits were filed. An amicus brief filed
by the States of Texas, Hawaii, Nevada, Wyoming, and Florida praised
the
Fifth Circuit's significant injury test as an "objective method for
winnowing
the wheat from the chaff." The brief reported that "[t]he
significant
injury requirement has been very effective in the Fifth Circuit in
helping
to control . . . docket management problems."
While the significant injury requirement
may assist the Fifth Circuit in controlling its caseload, it also has
the
effect, as the United States pointed out in its amicus brief, of
allowing
torture, so long as it leaves no lasting marks. For example, it
would
permit the use of the "Tucker Telephone," a hand-cranked device that
was
used in Arkansas prisons in the 1960s to administer electrical
shocks
to sensitive parts of the body. So long as the resulting injuries
were neither permanent nor required hospitalization, prisoners would be
fair game under the Fifth Circuit's test.
Two
well-known studies of prison and guard
behavior have documented the danger of loosening constraints in the
prison
environment. One study conducted at Stanford University assigned
students to the roles of "prisoners" and "guards" for what was to be a
two-week experiment. When researchers noted escalating levels of
harassment and aggression directed against students dressed as
prisoners,
especially in the researchers' absence, they felt compelled to
terminate
the experiment after only six days. As this study demonstrated,
circumstances
can elicit sadistic behavior from people who are not by nature
sadistic.
Stanley Milgram, whose 1965 study is considered a classic, reached a
similar
conclusion. Milgram found that subjects would, when instructed to do so
by an authority figure, administer what they believed were increasingly
high levels of electrical shocks despite their victims' complaints,
pleas
to stop, and even shrieks of agony.
Prisons are places where evil in its
direct, sadistic form is far too often found. In 1986, the Ninth
Circuit considered the complaint of an inmate who suffered ruptured
hemorrhoids
when a prison guard attempted to plunge a riot stick into the
prisoner's
anus. In the same year, the Sixth Circuit considered a case where
a correctional officer had waived a knife in a paraplegic prisoner's
face,
extorted food from him, and failed to relay requests for medical care
so
that he lay in his own feces for hours....
|