Tracking the latest developments in the fight for a fair America
The condition of prisons in the United States today is deplorable. Housing is overcrowded. Prisoners live in fear of violence. The use of solitary confinement—despite its toll on prisoners’ mental health—is on the rise. Often, the only recourse inmates have is through the federal court system.
But after a Supreme Court ruling Monday, even that recourse will be tougher to come by.
The Prison Litigation Reform Act (PLRA), passed in 1996, was an attempt by Congress to limit what it perceived as runaway, frivolous inmate litigation. Once a prisoner has three civil lawsuits dismissed by a court as frivolous (his or her three “strikes”), the act effectively prohibits the inmate from bringing another case while incarcerated. Without the ability to bring suit, prisoners have essentially no remedy when they are attacked, denied medical treatment, or are otherwise the victims of cruel and unusual punishment.
As detailed in AFJ’s report “An Expanding Strike Zone,” lower federal courts have been expanding nearly every element of the PLRA for the past two decades. Far from being a tool to stop frivolous lawsuits, the law now acts as a litigation minefield for prisoners, locking them out of the courthouse for technical errors, poor timing, and even reasonable arguments that end up losing.
Now the Supreme Court has taken its first step toward expanding the act. In a unanimous ruling, the Court held in Coleman-Bey v. Tollefson that so-called “pending strikes”—that is, cases that are dismissed as frivolous by the district court, but are being appealed—count towards a prisoner’s three strikes. Andre Lee Coleman-Bey, the plaintiff in the case, is an inmate in Michigan who brought a lawsuit against prison officials for interfering with his access to the courts. Coleman-Bey had brought two previous civil cases that were dismissed. He then brought a third case, which was dismissed by the trial court, and he appealed. That appeal is still pending. When Coleman-Bey attempted to bring this suit, the district judge ruled—and Monday, the Supreme Court agreed—that he was “struck out” and unable to bring the case.
The ruling means that prisoners can be prevented from bringing lawsuits if a district judge rules against them on a third strike, even if the judge’s decision was clearly incorrect, until the appeals court overturns it. Worse yet, the PLRA essentially prohibits prisoners from appealing cases once they have three strikes. Under the logic of the Court’s ruling, an inmate could be prevented from even being able to appeal the third strike an erroneous district judge gave him or her.
The Supreme Court disagreed with a vast majority of the circuit courts in coming to its decision. The First, Third, Fifth, Eight, Ninth, Tenth, and DC circuits all refused to count pending strikes against prisoners. Only the Sixth and Seventh circuits reached the same conclusion as the Supreme Court.
Monday’s decision is unlikely to be the last time the Court addresses the PLRA. Circuit courts continue to disagree on how and when the three-strikes rule applies to inmate lawsuits. One prominent judge on the DC Circuit has expressed “grave doubts” about the constitutionality of the three-strikes rule altogether. When these issues come to the Supreme Court, the justices should protect access to justice for incarcerated Americans who need it the most. The current trend of restricting their rights far beyond what the drafters of the PLRA could have envisioned only serves to protect wrongdoers and to delay the reforms our prison system so desperately needs.
Yesterday Carrie Severino of the Judicial Crisis Network (recall that, during the George W. Bush administration, this same group called itself the Judicial Confirmation Network) took to the National Review Online to scold Democrats for “whining” about the pace of judicial confirmations in the Republican-controlled Senate.
Citing the number of nominees who have had Judiciary Committee hearings, she argued that “[j]udges are moving along faster now than they did under Bush” in 2007, when a Democratic majority held the Senate. This argument not only gets the history wrong—conveniently omitting every relevant fact that disproves it—but ignores the essential need to fill vacancies and confirm judges no matter the historical precedent.
Before delving into historical comparison, consider how remarkably little this Republican Senate has accomplished. In nearly six months, the Senate has confirmed a total of two—two!—judges. There remain five more judicial nominees waiting on the Senate calendar, including three who have been pending since February, but Majority Leader Mitch McConnell has yet to schedule their votes. With so few confirmations, vacancies have shot up from 43 on January 1 to 57 (two more than when Obama took office in 2009) as of today. Moreover, the number of “judicial emergencies”—the official designation for courts without enough judges to handle existing caseloads—has doubled from 12 to 24.
Contrary to Severino’s assertion, things have not moved faster in committee. Severino makes the misleading claim that Judiciary Committee Chairman Chuck Grassley has “held five hearings and considered 14 nominees” this year, but fails to mention that only three of those hearings included nominees to Article III judgeships, for a total of 10 nominees. And for the hearing held on March 11, Grassley listed just two judicial nominees, passing over five nominees who had been nominated back in November 2014. Most egregiously, Grassley has forced Third Circuit nominee L. Felipe Restrepo to wait (so far) more than six months for a hearing, even though Judge Restrepo has the support of Republican home-state Senator Pat Toomey, and was confirmed to a district court seat without opposition in 2013.
With vacancies rising and qualified nominees pending, the Senate has a constitutional obligation to act, and that obligation does not depend on the historical pace of confirmations. Intentionally slow-walking nominees, as Senate Republicans have done all year, is nothing more than an attempt to score political points at the expense of everyday Americans who depend on access to courts and federal judges to protect their rights.
And yet, Severino’s claims fare no better even assuming that history is the relevant touchstone. At this point in 2007, Senate Democrats had confirmed 18 of President Bush’s judicial nominees, including three to the circuit courts of appeals. That Senate eventually confirmed 68 judges, meaning that more than 20 percent of George W. Bush’s judicial appointments came during his final two years. At its current rate, the Republican Senate led by Grassley and McConnell is projected to confirm a total of 9 judges. In addition, while President Obama has seen vacancy numbers rise during his seventh year in office, Senate Democrats had reduced vacancies from 56 to 50 at this point in 2007. Given this overwhelming disparity, it’s obvious that judges are not moving faster now than they were in 2007—they are, in fact, moving 89 percent slower.
The Third Circuit Court of Appeals needs another judge.
For the past 675 days, the former seat of Senior Judge Anthony Scirica has sat vacant. The Administrative Office of the U.S. Courts named the seat a judicial emergency earlier this year because the circuit cannot properly manage its current caseload without another active judge.
The problem should be easy to solve. On November 12, 2014, with the support of Pennsylvania Senators Bob Casey and Pat Toomey, President Obama nominated District Court Judge L. Felipe Restrepo to fill the spot. Yet, 176 days later, Senate Judiciary Chairman Chuck Grassley has not even held a hearing on Judge Restrepo’s nomination.
Everyone agrees that Judge Restrepo is qualified for the position. He was confirmed as a federal district court judge just two years ago on a voice vote. The American Bar Association rated him “well qualified.” Senator Toomey, a Republican, said the judge would “make a superb addition to the Third Circuit.”
So why the delay? In a radio interview on Tuesday, Senator Grassley said that Judge Restrepo was going through a “thorough vetting process” and that the committee is “doing what we normally do.”
But this delay is anything but normal. At 176 days, Judge Restrepo has already waited nearly three times
as long for his committee hearing as the average wait for Obama’s other circuit court nominees. Kara Farnandez Stoll, who was nominated to a federal appeals court the same day as Judge Restrepo, had a confirmation hearing on March 11 and was voted out of committee on April 23. This disparity is especially telling because Judge Restrepo just went through a rigorous background investigation before he was confirmed to his district court seat in 2013. If anything, having earned the Senate’s approval less than two years ago, Judge Restrepo’s vetting process should take less time, not more.
And it’s not like Judge Restrepo has been waiting behind a long line of nominees. Stoll is the only circuit court nominee who’s had a hearing in 2015, and on March 11 Grassley convened a hearing with only two nominees on the witness list. Judge Restrepo should have had his hearing then, if not before, but Grassley passed him over.
Justice delayed is justice denied. For the people of Pennsylvania and the rest of the Third Circuit, justice has been denied for far too long. It’s time for Senator Grassley to end his political charade and to hold a hearing for Judge Restrepo. The time for a “thorough vetting process” has come and gone, and there is a judicial vacancy that desperately needs to be filled.
The belief that we can tell the guilty from the innocent and those deserving of death from those deserving of life has many roots, but one of the most powerful may be the use of science—or what purports to be science— in criminal trials. Scientific evidence often comes to court with an aura of infallibility, appearing to offer jurors certainty that they will not convict (or sentence to death) an undeserving person.
But while there is no doubt science has much to offer the criminal system’s core truth and justice-seeking missions, our experience at the Innocence Project demonstrates that when purported scientific evidence is not validated or reliable, it has a devastating effect on those same aims. Indeed, the convictions in almost half of the 329 DNA exonerations rested in part on unvalidated and unreliable scientific evidence. Thirteen of these innocent people, like Ray Krone and Dennis Williams, were also sentenced to death. These are not isolated problems. Just last month, The Washington Post reported that “[t]he Justice Department and FBI have formally acknowledged that nearly every [hair microscopy] examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”
Unvalidated and unreliable forensic science is being used not just to determine who will die, but how. On April 29th, the Supreme Court heard oral arguments in Glossip v. Gross, a case that challenges Oklahoma’s use of an anti-anxiety drug called midazolam in its lethal injection procedures. Oklahoma, like many states, uses a three-drug protocol in executions. The first of these drugs is intended to “induce a deep, comalike unconsciousness,” before two other drugs are used to induce paralysis and death. This deep unconsciousness is necessary to ensure those injected with the “liquid fire” of the third, killing drug do not feel constitutionally intolerable pain.
After European manufacturers took measures to prevent their products from being used in executions, Oklahoma turned to midazolam to create this unconscious state. In 2014, Oklahoma used midazolam for the first time in the execution of Clayton Lockett. Even after receiving all three drugs, including 100 milligrams of midazolam, and being declared unconscious, Lockett began to “writhe and gasp,” suggesting he could feel the “agonizing suffocation and pain” caused by the two other drugs. (Two other men, Joseph Wood in Arizona and Dennis McGuire in Ohio, suffered similar fates during their executions.) After Lockett’s botched execution, Oklahoma increased the midazolam dosage to 500 milligrams.
Glossip and a group of other petitioners challenged this protocol in federal court. At an evidentiary hearing, Oklahoma put on only one witness, Dr. R. Lee Evans, to support its use of the drug. Evans testified that 500 milligrams of midazolam would render a person sufficiently unconscious for purposes of execution. But this conclusion has no basis in science, and no reliable scientific data or methodologies supported it. Rather, Evans merely presumed that because midazolam would kill a person at a specific dose, that same dose would also cause a sustained coma before causing death—a conclusion belied by the many botched midazolam executions described above. As. Evans himself admitted, only “extrapolation” and “assumption” supported this opinion. Indeed, because no peer-reviewed scientific literature—one of the hallmarks of validated and reliable science—supported his extrapolations, Evans relied instead on the website drugs.com. In addition, Evans made a material miscalculation in determining the drug’s toxic dose in this first instance. It was on this unscientific testimony that the district court, and ultimately the appeals court, upheld Oklahoma’s use of the drug.
Unsupported speculation and mathematical errors are not science. Science requires a rigorous application of the scientific method, which in turn demands empirical testing methods, peer review, and objective standards. Whether the Court will ultimately acknowledge that purportedly scientific testimony which falls short of science also falls short of what is constitutionally necessary to take a person’s life remains to be seen. At oral argument, several of the Justices, Justice Breyer in particular, evinced serious concern about the lack of scientific basis for Dr. Evans’s opinion. Whatever the Court decides, it is plain that basic notions of fairness and justice require that only validated and reliable forensic science be used to determine guilt and punishment; no less do they compel us when determining how such punishments are carried out.
Dana Delger is a staff attorney in the Strategic Litigation Unit of the Innocence Project.
We recently chronicled the glacial pace of judicial confirmations under the leadership of Senate Judiciary Chairman Chuck Grassley. Yet, despite the slow start, Senator Grassley has already shifted his sights—to shutting down judicial confirmations altogether.
In comments today at the National Press Club, Senator Grassley said of judicial nominations: “Come July of 2016, probably they’ll be cut off and not approving any . . . It’s just kind of tradition.”
But this “tradition” is one of Grassley’s own making. Presidents regularly have district and circuit court nominees confirmed after July 1 of their final year in office. President Clinton had nine in 2000. President George W. Bush had 14 in 2008. And in each case the president faced a Senate controlled by the opposition party.
More importantly, President Clinton’s and Bush’s nominees were treated fairly throughout their final two years in office, when they had 73 and 68 judicial nominees confirmed, respectively. In the first four months of his final two years, President Obama has had two.
Senator Grassley is making it clear he’s committed to obstructing the confirmation process from the beginning to end of this term—and now he wants the end to come sooner than expected.