Prison reform, or the hope of it anyway, comes in many forms. Enlightened corrections officials can impose it by changing policies. Legislators can demand it through the passage of new laws. And judges can order it to remedy violations of those laws or the Constitution.
There are many ways to stifle prison reform, too. Unions and lobbyists representing law enforcement and corrections officers can resist it. Elected officials can evade or delay it. And judges can ignore it by protecting those who make or allow prisons to be places of deplorable cruelty.
The Fifth Circuit Court of Appeals surely falls in the latter category. A federal appeals court with jurisdiction over Texas, Louisiana, and Mississippi, it has a long history of antipathy toward prisoners. It also now is brimming with new Trump appointees. On the Friday before Christmas, it quietly and largely upheld a lower federal court’s ruling against a Texas prisoner named Trent Taylor. Corrections officers allegedly laughed in his face when he complained about living for days in unspeakably filthy conditions.
The decision stands as a particularly pungent example of the ways in which the federal courts can stymie prison reform through an overbroad (and in this case absurd) interpretation of the doctrine of “qualified immunity.” The doctrine shields from civil liability public officials, like corrections or police officers, who deprive people of their legal rights so long as those rights were not “clearly established” when they were violated.
Taylor’s story, as chronicled in court, begins when he was placed in a cell in September 2013 at the John T. Montford Unit in Lubbock, Texas, part of the state’s vast prison system. The cell, he alleges, was covered from floor to wall to ceiling in feces. He could not drink from the faucet, he testified, because the faucet itself was covered in human excrement. The officers knew about the condition of the cell, Taylor claims, because they joked about the “long weekend” he would have to spend it in. His complaints were ignored for days.
When Taylor finally was transferred to another cell it was, he alleges, a “seclusion” cell designed to be dangerously cold and used on prisoners who exhibited signs of mental illness. There was only a drain in this cell — no sink, toilet, or bed — and it was clogged. Taylor was denied a restroom break and ultimately urinated on himself and slept on the floor in his own urine. The corrections officers knew this was happening, and one told Taylor to “deal with it.” In his federal civil rights lawsuit, Taylor alleged that he became seriously ill from the ordeal.
Reasonable people reading Taylor’s allegations surely would be appalled by the conditions he describes even if they knew nothing about the current state of prison reform in America. Surely, anyone with a conscience would say that our civil rights laws, at a minimum, should be construed to hold corrections officers and officials responsible for permitting such cruelty to prisoners. Surely, even the most cramped interpretation of the Constitution should forbid corrections officers from forcing incarcerated people to lay in freezing cells covered in their own waste.
Evidently not. First, the federal district court judge in Taylor’s case ruled that his cell conditions did not create a constitutional violation because he was “only” held there for a few days and had shown no evidence of injury as a result of this ordeal. Imagine spending 87 hours living in your own filth and arguing it’s a short period. The judge ruled in favor of the nearly four dozen defendants (corrections officers and prison officials) Taylor had sued, effectively ending his lawsuit far short of the damages and jury trial he was seeking.
Taylor and his attorneys appealed to the Fifth Circuit, which took a different route but ended up at the same place. In its view, Taylor did allege facts that might establish that his constitutional rights were violated. There was evidence that the officers had acted with “deliberate indifference” toward him and had subjected him to a “substantial risk of serious harm.” But, the court ruled, under “qualified immunity” doctrine Taylor had no “clearly established” right not to be housed for days in his own filth.
Got that? Because no court had ever ruled it unconstitutional to keep a prisoner in such horrible conditions for “only” a few days, the officers had no reason to consider that he had a right to be free from such conditions. Because no federal court had “clearly established” such a right, no such right existed. This Kafkaesque tautology spares corrections officers and their bosses in Texas and around the rest of the country from having to defend to a jury their deliberate indifference to incarcerated people.
It’s not just the cruel result of the ruling that makes it so galling. It’s the way in which the judges welcome future constitutional violations. “We do not suggest hold [sic] that prison officials cannot require prisoners to sleep naked on the floor,” the judges wrote in a footnote, lest they be accused of coddling prisoners. “There can be any number of perfectly valid reasons for doing so. Our holding is limited to the extraordinary facts of this case, in which Taylor alleges that the floor on which he slept naked was covered in his and others’ human excrement.”
Some say that there is reasonable hope that the Supreme Court, led by Justice Neil Gorsuch of all people, will begin to restrict the application of the “qualified immunity” doctrine.
I am not so sure. I think it’s much more likely that he will endorse or at least not block the Court’s clear trend toward an expanded view of the doctrine. That will mean, tragically, that more corrections officers who laugh at men forced to live in their own excrement will continue to be protected from lawsuits for their misconduct, their culpability, and their heartlessness.
A more hopeful sign is the broad and growing consensus for restricting the scope of qualified immunity that exists today among legal scholars. They see that the doctrine is increasingly used as a sword and not a shield by corrections officers and cops. They see how judges lazily rely — as they did here — on qualified immunity to countenance even egregious misconduct.
Indeed, so long as the federal courts countenance such cruelty and debasement, so long as men and women have no legal recourse when they are abused like this, prison reform for too many in America will be a hollow promise.
The views expressed are the author’s own and not necessarily those of the Brennan Center.