Churchill on Prison

Winston Churchill’s thoughts on his time as a prisoner (of war)

I’m not sure, and am too lazy to verify, whether if Winston Churchill is the only head of a Commonwealth government to have been a prisoner; but there cannot have been many. (UPDATE: As my friend Malcolm Lavoie points out to me, Nelson Mandela is another example. It is rather stupid of me to have forgotten that and, as you will presently see, quite ironic.) Churchill did not long stay in captivity ― he escaped the converted school where he (a war correspondent at the time) and British officers taken prisoner during the early days of the Boer war were held ― but the experience still marked him, and he wrote about it in his memoir My Early Life, written in 1930:

[T]he whole atmosphere of prison, even the most easy and best regulated prison, is odious. Companions in this kind of misfortune quarrel about trifles and get the least possible pleasure from each other’s society. If you have never been under restraint before and never known what it was to be a captive, you feel a sense of constant humiliation in being confined to a narrow space, fenced in by railings and wire, watched by armed men, and webbed about with a tangle of regulations and restrictions. I certainly hated every minute of my captivity more than I have ever hated any other period in my whole life. (273)

In My Early Life, Churchill says relatively little about his philosophy, and almost nothing about his political career in the 1910s and ’20s, focusing mostly on telling the story as he lived it at the time of the events. However the topic of imprisonment prompts a rare digression:

Looking back on those days, I have always felt the keenest pity for prisoners and captives. What it must mean for any man, especially an educated man, to be confined for years in a modern convict prison strains my imagination. Each day exactly like the one before, with the barren ashes of wasted life behind, and all the long years of bondage stretching out ahead. There in after years, when I was Home Secretary and had all the prisons of England in my charge, I did my utmost consistent with public policy to introduce some sort of variety and indulgence into the life of their inmates, to give to educated minds books to feed on, to give to all periodical entertainments of some sort to look forward to and to look back upon, and to mitigate as far as is reasonable the hard lot which, if they have deserved, they must none the less endure. (273-74)

This is, I think, something that those in charge of prison policy at various levels would do well to consider ― all the more since they, unlike Churchill, will typically lack the experience, however short, of the shoe being on the other foot.

And speaking of books for a mind to feed on, whether or not the body that houses it is in prison or at large, one can find worse than My Early Life. Though it is, no doubt, somewhat politically incorrect by our standards, the events it tells are fascinating; the author’s philosophical observations, though infrequent, are sharp; there is a somewhat wicked pleasure in reading it while knowing what Churchill did not know when it wrote it ― the events that would made him one of history’s great heroes, instead of a minor footnote; and last but not least, it is brilliantly written and thus simply a joy to read.

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

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The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

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A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

Contesting Expertise in Prison and at Large

I wrote on Thursday about a very interesting article by Lisa Kerr, “Contesting Expertise in Prison Law,” which argues that courts should be less deferential to prison administrators and should take facts, especially social science evidence about the real-life operation of prisons and the lives of prisoners into account, as well as that lawyers need to provide judges with such facts. As promised in that post, I would like to offer a (friendly) critique of Ms. Kerr’s article, trying to put the trend of deference which she decries, as well as the strategy of enlisting social science evidence to counter this trend, which she advocates, in their broader context.

The lack of this broader context is the one thing I didn’t quite like about Ms. Kerr’s article. Although it is not an entirely fair reproach to make to a piece that is 50 pages long without being prolix, I still think that considering it might have been useful, for it would have shown that the problems that the article describes ― excessive judicial deference to supposedly expert administrators, and failure to consider the evidence of the real-life effects of these administrators’ decisions ― are not unique to the prison law context.

Start with deference. Some ― uncertain ― measure of deference is, rightly or wrongly, a standard feature of most Charter litigation. Perhaps it wasn’t supposed to be like that. In a passage from R. v. Oakes, [1986] 1 S.C.R. 103, which now seems to have been largely forgotten, Chief Justice Dickson wrote that

any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms ― rights and freedoms which are part of the supreme law of Canada.

Contrast this with, say, Chief Justice McLachlin’s statement of the general approach to s. 1 in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, according to which

[s]ection 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”. [37]

And then, there’s the trend towards generalized deference to administrative decision-makers, including of course correctional authorities, including increasingly in Charter cases. Contrast, again, the words of Justice Charron, writing for the majority in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, rejecting an

approach could well reduce the fundamental rights and freedoms guaranteed by the Canadian Charter to mere administrative law principles, [16]

and the Court’s unanimous decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which held that administrative decisions were not subject to the Oakes test at all, further that discretionary, individualized decisions (although not decisions as to the constitutionality of a law) were to be reviewed for their compliance with “Charter values” on a standard of reasonableness, not correctness.

Now this trend need not be an insuperable obstacle for the attempt to make courts rein in prison administrators. In Hutterian Brethren, the Chief Justice pointed out that courts will generally defer more to “a  complex regulatory response to a social problem” than to “a penal statute directly threatening the liberty of the accused.” [37] One of the reasons Ms. Kerr’s article is important is that it shows that many decisions of the prison authorities belong less in the former category than courts may tend to suppose, and more in the latter. Indeed, Ms. Kerr suggests that using expert evidence can help the prisoners’ lawyers make these decisions appear less complex, and more penal, than judges, who are not familiar with the prison environment, are inclined to believe. This is a most interesting ― and somewhat subversive ― suggestion.

Unfortunately, it may not be easy to get lawyers to adopt it, and judges to go along. Lawyers’ and judges’ reluctance to deal in facts is also a tendency that affects much more than prison law. Richard Posner bemoans it in his recent book of Reflections on Judging ― which is why I described Ms. Kerr’s article as “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” Indeed, Judge Posner specifically notes that “[f]ew federal judges, or for that matter prosecutors and defense attorneys, are familiar with … studies” dealing with the economics of imprisonment and alternative forms of punishment, including the costs and benefits to society and offenders. (68) But that is just one example, one complaint in a litany. Judge Posner makes a compelling argument that “[w]e need evidence-­based law across the board, just as we need evidence-­based medicine across the board,” (62) but his book offers no easy paths to get there. As he points out, judges tend to share

a professional mind-set that often includes — along with impartiality, conscientiousness, and other traditional attributes of a good judge — lack of curiosity, a feeling of intimidation by science and technology, and a lack of interest in obtaining an empirical rather than merely intuitive grounding for one’s beliefs. These attitudes communicate themselves to the bar , [creating] an unfortunate feedback effect because of the dependence of judges on lawyers in our adversarial legal system. (92-93)

This is the problem Ms. Kerr’s argument is up against and, to repeat, it is not unique to prison law. What is more, as Judge Posner points out, the two trends of deference to administrative decision-makers and reluctance to engage with complex facts are related. “[W]hen they don’t understand the activity from which a case before them has arisen,” (85-86) he writes, judges often seek to avoid deciding it themselves. One way to do that it is to let it

be answered by administrative agencies to which judges defer on the often fictitious ground that the agencies have “expertise,” even if their adjudicators are poorly trained, horribly overworked, highly politicized, or all these things at once. (86)

These trends can be overcome. Ms. Kerr holds up the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, which granted all prisoners their voting rights under s. 3 of the Charter, as a hopeful example and model. Yet as Michael Pal’s study of the role of social science evidence in the Supreme Court’s law of democracy cases shows, its rejection of deference is unusual not only in the prisoners’ rights jurisprudence but also in that on democratic rights and freedoms. This jurisprudence, not coincidentally, is also largely characterized by judicial unwillingness to engage with relevant facts and social science evidence. “[L]ogic, reason and some social science evidence” are enough, the Supreme Court’s majority said in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33, at par. 78, even as it blithely ignored the dissent’s warnings about the speech-stifling real-life effects of the provisions of the Canada Elections Act whose constitutionality it was upholding. The fight for evidence-based law will have to be fought on all fronts ― in prisons and outside.

For this reason, Ms. Kerr’s article’s showing how a sufficiently well-prepared case may be able to overcome these obstacles is perhaps even more important than she lets on. Of course, there are other examples too. In the area of the law of democracy (and in the United States), Judge’s Posner’s recent opinion ― albeit one dissenting from denial of rehearing en banc ― in Frank v. Walker, a voter-ID case is another. (It is also proof that even individual judges can be made to change their mind when presented with compelling evidence.) The Supreme Court’s recent decisions regarding the rights of injection drug users and sex workers, to which Ms. Kerr refers, are two more. They are, just like the recent prisoners’ rights cases Ms. Kerr extols, part of what Kerri Froc described as an “empirical turn in Charter jurisprudence,” on which I have been writing quite a bit here.

The “empirical turn” creates many problems, not the least of which is the length and expense (quite apart from the difficulty) of putting together a compelling record. In Sonia Lawrence’s words,

these aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece. It’s a long road to justice this way around, folks.

Ms. Kerr’s article is a reminder that it might also be the only road there is. And a suggestion as to how to travel it that little bit faster.

Fighting Expertise with Expertise

Lisa Kerr, a brilliant colleague of mine at the JSD programme at NYU and soon-to-be professor at Queen’s, has recently published a fascinating article called “Contesting Expertise in Prison Law,” explaining the practical and normative importance of expertise and evidence in prisoners’ rights adjudication. I am no doubt biased, but I think it deserves to be read and thought about, both for its importance to its specific topic, and for what it can tell us about some much broader trends in Canadian law. This post is mostly a summary of the article. I will offer a critique, focusing on its relationship with these broader trends, in a separate one (hopefully tomorrow or this weekend).

Ms. Kerr’s argument, in a nutshell, is an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information. Armed with facts and expert opinion, Courts can and should stop being unduly deferential to prison administrations, which tend to cloak their imposition of unnecessarily harsh conditions on prisoners in claims of expertise. “Prisons,” Ms. Kerr writes, “do not need to be viewed as mysterious places by courts, nor as places where necessarily amateur outside intervention could trigger unknown dangers.” (74)

Looking at both Canada and the United States, Ms. Kerr traces the rise and decline of judicial willingness to intervene to protect the rights of prisoners. For a long time, she notes, inmates were effectively regarded as having lost all rights. Prisons were places where the ordinary law, including constitutional law, did not run. But beginning in the 1960s in the United States, and the 1970s in Canada, courts started intervening and imposing constitutional constraints on prison authorities. Yet the movement was reversed in the United States, with courts adopting increasingly deferential approaches to the claims by prison authorities that this or that repressive measure was necessary to ensure prison security or otherwise advance “legitimate penological goals.” (A welcome counterexample, too recent to have made it into Ms. Kerr’s article, is the U.S. Supreme Court’s unanimous decision this week in Holt v. Hobbs, rejecting the claims Arkansas Department of Corrections’ claim that allowing a devout Muslim inmate to wear, for religious reasons, a half-inch beard would be too dangerous.) In Canada, although one might have expected the coming into force of the Charter to spur the courts to accept prisoner claims, their “hands-off” instincts have proven remarkably resilient. Both lower courts and, on occasion, the Supreme Court have been disinclined to look into the issues of sentence administration, and preferred to treat prisons as separate universes properly subject to their own rules.

Yet there have been hopeful signs, Ms. Kerr notes. Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519), which held that prisoners could not be disenfranchised, was one case where their constitutional rights were granted the same significance as those of other citizens. And, more recently, challenges supported by sophisticated evidentiary records have succeeded, at trial level, in thwarting the prison administrators’ repressive instincts. The presence in the record of social science evidence can make it clear ― and indeed force prison authorities to acknowledge ― that the impugned decisions were made without any real justification or even thought going into the process, and that alternative, less repressive, courses of action are available. Probably the most important theoretical point Ms. Kerr makes is that

[t]he question of evidence has, in fact, been the critical dimension for claimants who experience chronic marginalization and popular resentment. This is at least partially because the evidentiary record is the means by which counsel can insist that constitutional adjudication not mirror conjecture and stereotyping from the wider culture. (76; emphasis mine.)

The practical takeaway follows immediately, and inexorably:

Counsel for prisoner claimants should continue to focus on the issue of expert evidence, notwithstanding the difficulties of doing so, and should be aware that there is an extraordinary range of expertise and literature that could bear upon future Charter claims.(76)

It is a bit ironic, of course: if you want to contest expertise (that of prison authorities), you have to counter it with more expertise (that of social scientists or even, for that matter, that “former prison administrators, and administrators from other jurisdictions” (74)). And since the government is, as Ms. Kerr acknowledges, itself well-positioned to collect and present expert evidence, it could potentially play that game too. But the end point is not tto stick it to the government ― it’s to make prisons a more human place (and, by way of consequence, those who eventually come out of them better, or at least less-worse, people!). If the government starts winning cases on the basis that its policies are actually in keeping with at least a reasonable take on the best expertise that exists in the realm of prison administration, rather than simply because courts reflexively defer to the administrators, Ms. Kerr will have succeeded, and we all will be better off.