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On Prisoner Rights, Justice Gorsuch Is Precisely Who We Thought He’d Be

He went out of his way last month to protect officials at the expense of injured inmates.

March 2, 2018

Justice Neil Gorsuch may have been curi­ously silent last week when a big public union case came before the Court. But he spoke eloquently one week earlier in an Illinois case about prison litig­a­tion that merits more atten­tion than it so far has received. What the newest justice said, in effect, is that a dubi­ous federal law used for decades to under­mine account­ab­il­ity in cases of prison abuse and neglect ought to be even more protect­ive of correc­tions offi­cials and even less hospit­able to inmates.

The Illinois case, styled Murphy v. Smith, was about who must pay attor­ney’s fees when a pris­oner sues his guards and wins a damage award from a judge or jury. So this isn’t a case about a frivol­ous lawsuit. It’s a case about a merit­ori­ous one. Charles Murphy, the pris­oner, was abused by guards at the Vandalia (Ill.) Correc­tional Center after he complained that the chair he was supposed to sit in for a meal had food and water in it. For that he was hand­cuffed and escor­ted to a segreg­a­tion unit. Once there, Justice Soto­mayor wrote in her dissent:

Murphy taunted respond­ent Correc­tional Officer Robert Smith, who respon­ded by hitting Murphy in the eye and apply­ing a choke hold, caus­ing Murphy to lose conscious­ness. When Murphy woke up, Officer Smith and respond­ent Lieu­ten­ant Gregory Fulk were push­ing him into a cell. His hands were still cuffed behind his back and he fell face-first into the cell and hit his head on a metal toilet. Officer Smith and Lieu­ten­ant Fulk then stripped Murphy of his clothes, removed his hand­cuffs, and left him in the cell without check­ing his condi­tion. Thirty or forty minutes passed until a nurse arrived to attend to Murphy, who was sent to a hospital. Part of his eye socket had been crushed and required surgery. Despite the proced­ure, Murphy did not fully recover; almost five years later, his vision remained doubled and blurred.                                              

For this, Murphy sued. A jury found Smith, the guard, liable for battery and for using an illegal level of force. The other guard, Fulk, was found liable for “delib­er­ate indif­fer­ence to a seri­ous medical need.” Both officers, in other words, were found guilty of viol­at­ing Murphy’s right to be free from “cruel and unusual punish­ment” under the Eighth Amend­ment. The jury awar­ded Murphy $409,750 in compens­at­ory and punit­ive damages, which the trial judge reduced to $307,733.82. The judge also awar­ded Murphy’s attor­ney $108,446.54 in fees for the “several hundred hours” he had spent on the case. And then the judge ordered Murphy to pay ten percent of his award toward the attor­ney’s fee.

The ten-percent offset came cour­tesy of a provi­sion of the Prison Litig­a­tion Reform Act, another one of those Clin­ton-era “tough-on-crime” laws that may have done more harm than good in the end. The law provides that “whenever a monet­ary judg­ment is awar­ded, a portion of the judg­ment (not to exceed 25 percent) shall be applied to satisfy the amount of attor­ney’s fees awar­ded against the defend­ant. If the award of attor­ney’s fees is not greater than 150 percent of the judg­ment, the excess shall be paid by the defend­ant.” The fight at the Supreme Court came down to what Congress meant by the words “to satisfy.”

Gorsuch, for the five-justice major­ity, concluded that trial judges in these instances have no discre­tion to determ­ine what percent­age of an inmate’s damage award must be used to cover an attor­ney’s fee award. It must be 25 percent. I’ll leave you, if you wish, to read the brief opin­ion to glean what you can from his dense gram­mat­ical analysis, but I found it lack­ing both in sense and sens­ib­il­ity. The justice, known for his love of “textu­al­ism,” contor­ted the text of the stat­ute to give prison offi­cials every­where an import­ant victory and pris­on­ers every­where a sting­ing defeat.

What the ruling means, in Murphy’s case and now in every similar case that follows it, is that pris­on­ers who win their lawsuits against prison offi­cials, and who are gran­ted money damages, will likely receive less of those damages and that the prison offi­cials respons­ible for the miscon­duct will in turn be required to pay less. Remem­ber now what it takes for this part of the law even to come into play. A pris­oner must bring a legit­im­ate case, which has to be endorsed by a judge and a jury, and which has to over­come all of the qual­i­fied immunity and other proced­ural hurdles in place to limit damage awards. And at the end of all of that, Justice Gorsuch just wrote, the pris­oner gets screwed one more time on attor­ney’s fees.

It was left to Justice Sonia Soto­mayor, writ­ing for herself and the Court’s three other progress­ive justices, to describe what the major­ity’s ruling would mean in prac­tical terms for the pris­on­ers who might fall under it. The “vast major­ity of pris­oner-civil rights cases” result in relat­ively small damage awards to pris­on­ers in which “the attor­ney’s fee award exceeds the monet­ary judg­ment awar­ded,” she wrote. There is no way Congress could have writ­ten the law in a way to nullify virtu­ally every damage award by having it offset by a payment of a mandat­ory 25 percent toward attor­ney’s fees.

So we have a federal law, the one at issue here, that precludes all but a tiny frac­tion of legit­im­ate pris­oner cases from going to trial. And then we have broad immunity stand­ards that also prevent viable claims from getting to a jury. And then we have limits on damage award­s—even the trial judge here, remem­ber, limited the damage award—and now we have a new ruling that says that pris­on­ers likely have to pay for more of their share of attor­neys’ fees even when they over­come all of these other hurdles. There is noth­ing fair or right about any of this. And it does­n’t bode well for Justice Gorsuch’s crim­inal justice juris­pru­dence going forward.

(Photo: Getty)

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.