I was looking through some prisoners' rights advocacy groups online, including one here in Maricopa County called Middle Ground. I ran across some stuff (deaths and near deaths, the women's holding cell toilet-cam, illegal purchasing, nepotism) – all brought to you by our Sheriff, but the basic foundation of indecent treatment is really in his Constitutional Rights violations.

Several months ago, LA County jail lost a landmark precedent case in a situation dwarfed by Joey's antics. The court held in Thomas v. Baca, 2007 WL 2758741 (C.D. Cal. Sept. 21), that an unacceptable indignity can be cruel and unusual punishment and violates the Due Process Clause in the Fourteenth Amendment (for pre-sentenced detainees) and the Cruel and Unusual Punishment Clause in the Eighth Amendment (for both convicted prisoners and detainees). In this case, denying the prisoners' beds and giving them a mattress on the floor is deemed a humiliating and degrading practice that qualifies as cruel and unusual per several Supreme Court Eighth Amendment challenges, even if the detainee enjoys camping on the ground, or has a bad back and prefers the floor. The option of a bunk is a minimum measure of civilized treatment and an integral part of the "adequate shelter" mandated by the Eighth Amendment because sleeping in a bed identifies our common humanity.

Interestingly, though, the finding wasn't based on a conclusion that such a practice caused unacceptable physical discomfort, or hygiene problems. Rather, it seems that the court thought that requiring people to sleep on mattresses (presumably with adequate other bedding) rather than on bunks is an integral part of the "adequate shelter" mandated by the Eighth Amendment. The question is not the level of comforted granted by the bed but the indignity of not being permitted to use a bed. It is about the cultural reasoning, humans sleep on beds and animals sleep on the floor, when one is forced to sleep on the floor one is being treated as an animal. Likewise humans wear clothes and animals don't, when one is not permitted to wear clothes one is being treated as an animal. This speaks to the broader question whether general conditions of confinement can be so harsh as to be considered cruel and unusual punishment. Routine discomfort inherent in the prison setting may not state a constitutional claim, but depriving inmates of adequate shelter goes much deeper. It is easy to reach a level at which the shelter of the inmates is unfit for human habitation, and fails the definition of shelter.

The Court is not setting any landmark precedents in finding that a minimum degree of civilized conduct demands this decision. In argument, the following additional precedents were cited:

1. Lareau v. Manson, 651 F.2d 96, 107-08 (2d Cir.1981); "forcing men to sleep on mattresses on the floors violates the Eighth Amendment because it does not provide minimum decent housing under any circumstances for any period of time."
2. Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996, 1001 (3d Cir.1983); "forced floor-sleeping, even with mattresses, is an unsanitary and humiliating practice."
3. Lyons v. Powell, 838 F.2d 28, 30 (1st Cir.1988) "floor-sleeping with mattress stated cognizable Fourteenth Amendment violation"
4. Albano v. Mitchell, No. C 97-3781, 1998 WL 101743, at (N.D.Cal. Feb.24, 1998) "allegations of floor-sleeping may be sufficient to implicate denial of the minimum civilized measures of life's necessities"
5. Loya v. Board of County Commissioners, No. CV 91-216, 1992 WL 176131, (D.Idaho May 4, 1992) "sleeping on the floor is constitutionally prohibited"
6. Balla v. Bd. of Corr., 656 F.Supp. 1108, 1114 (D.Idaho 1987) "floor-sleeping is dehumanizing, intolerable and certainly of no penological benefit"
7. Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980) "overcrowded conditions which led to practices including floor-sleeping violates the Eighth Amendment"
8. Stewart v. Gates, 450 F.Supp. 583, 588 (C.D.Cal.1978) "floor-sleeping is unconstitutional".

I got a bottom bunk, a sheet, no pillow, and an airline blanket that wouldn't keep a polar bear warm. We were outside on the coldest night of 2005. Two of the 75 or so of us that were herded into two 20 by 20 boxes for 27 hours of intake processing eventually contracted pneumonia from exposure the first night in the tents (the rest of learned to steal blankets). In fact, the only two nights that we were warm was when they were holding us (deprived of sleep and meals for 27 hours) for intake, and a 22-hour overnight reverse process to get out. Forcing inmates to sleep without heat obviously stoops beyond an unconstitutional level. Protection from the elements is absolutely inherent in the definition of "shelter"; arguably even more so than sleeping without a mattress. "Layering" is prohibited - one shirt, one jacket. No hats or hoods. In case you are wondering, it does get very close to freezing in Phoenix - it was 40º F when this photo was taken (in the daytime):

Other degrading and dehumanizing practices include; forcing detainees to shave off all facial hair before being allowed to leave each day (regardless of religious convictions to the contrary), allowing for no special diets of any kind, and general paramilitary discipline of the playground bully style because, "Jail isn't supposed to be fun." No argument there, but it shouldn't be torture, either. Anything from inconvenience to atrocity is followed by this same justification statement. In certain religions, eating particular food is considered to be the equivalent of blasphemy. Do you suggest that prisoners should be required to blaspheme? For instance, would it be appropriate for a prison to issue copies of the Bible for use as toilet paper? Even if your beliefs allow eating anything, the food there is closer to a Fear Factor challenge than edible food. This is done deliberately and the Sheriff makes it very clear in the press that it is because, "Jail isn't supposed to be fun."

One could argue the importance of this hazing as a posturing to establish dominance (to break you down by dehumanizing you), but that really isn't how the human mind works. The reason that hazing is employed by fraternal and military organizations is to present challenges so that the recruit comes through with a sense of pride that s/he persevered in their endeavor. This results in loyalty and a sense of pride in membership. That sort of breaks down in this context since; 1) you really aren't supposed to be making people proud of their jail stay, and 2) you are not trying to build a loyal army of brothers that could present a united front against administration.

Another bit of fun from Uncle Joe is the chain gang. He especially enjoys parading them around on the side of busy roads full of tourists (on N Scottsdale Rd during the FBR, etc.). Of course, hard labor has been judged to be a violation of Eighth amendment rights several times since 1910, but somehow this Maricopa County version has been sold as not meeting a strict definition of hard or painful. Let's see Osama bin Arpaio get his fat ass out there. A sentence of hard labor is referred to in fancy law circles as cadena temporal. Temporal refers to the fact that it is not a life sentence (as opposed to cadena perpetua). The Spanish word for chain is cadena – go figure.

Even though it is obvious to the reasonable man, this has to be said because somebody will contest on these grounds. Constitutionally speaking, "cruel and unusual" means the same thing as "cruel or unusual." Those are just two different things listed that are both prohibited. So, just because the practice in question is not unusual, doesn't mean that it fails the test.

Then there's the civil rights issue. The Constitution guarantees every citizen's civil rights. These cannot be denied just because a misdemeanor has been committed by that citizen, or when they are awaiting trial for an accused crime. By comparison, convicted felons and violent criminals are afforded far more of these rights than those that have been denied due process under the Fourteenth Amendment.

I fully understand that incarceration is a penalty. It is the punishment handed down by the court, which makes it THE penalty. Any additional arbitrary or capricious punishment handed down by detention officers or jail policy in excess of the sentence handed down by the court (other than what is necessary to maintain order) is then cruel and unusual punishment. At least that's what the Supreme Court decided in Hudson v. McMillian, 503 U.S. 1 (1992), where Keith Hudson talked back to a guard from his locked cell and was shackled, dragged down the hall, and beaten about the face so bad that it cracked a dental plate and loosened several teeth. The Supreme Court upheld Hudson's award of $800 in damages from a lower court in an 8-2 decision.

The only bigger asshole in the country than Sheriff Joe may be Clarence Thomas. In his dissenting opinion in the Hudson case, Clarence Thomas wrote that, "In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable." And, "Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional." So, a beating is cruel and unusual punishment if ordered by the legislature or the court, but not if inflicted by guards, who are, after all, state employees. Judge Thomas is saying that, since the sentence handed down did not include a mention of beatings, it is not cruel and unusual punishment, but Hudson is welcome to file suit against the guards. Also per Thomas, the "unnecessary and wanton infliction of pain," is inadequate, even if there is no need to inflict the pain to maintain order. Bullshit! State action can lead to the infliction of cruel and unusual punishment in many more ways than just specifying, by statute, punishments that fall into this category. Surely the State has some obligation to protect prisoners' physical wellbeing. Surely the state has some obligation to protect prisoners' physical wellbeing ("adequate shelter"). No matter how low you think that standard of care is, not preventing guards from beating prisoners must violate it. Thomas has clearly stepped beyond the intent of his appointment which, everyone knows, was to replace Thurgood Marshall as the token black guy on the bench and to try and water down some of those annoying civil rights that Justice Marshall fought so hard for. I don't think that Bush ever intended for him to take rights away from white guys, too.

However, Thomas also has indicated that if judges knew that being beaten by guards was part of the incarceration, even if not specified by the judge, then the beating would be considered part of the punishment (actually he went further and excluded willful ignorance on the part of judges). In Maricopa County, the judges passing sentence are knowledgeable of the conditions in the jail. Isn't that the same thing?

I realize that, historically, judges have tried to maintain a "hands off" policy between the judicial branch that hands down the sentencing and the executive branch that metes it out. Even if convicted, doesn't a judge have a duty of care with regard to handing down a sentence to protect a prisoner's Eighth Amendment rights if the judge has knowledge of the conditions to which the prisoner will be subjected? And if the judge happens to be Amish and doesn't have a TV or radio and doesn't read newspapers or talk to anyone, that's still constructive (known or should have known) knowledge. That speaks to the conditions being part of the sentence. Fuck you, Clarence Thomas. Stick to something that you are good at, like sexual harassment.

Cheers,
Bob Peeples, PE