THE “HANDS OFF” DOCTRINE REVISITED

Ed Mead

From Prison Focus Issue 46
Summer 2015

At one point in my political career I was the co-found-er of a publication called Prison Legal News, and as such I had occasion to write many articles on decisions from various state and federal courts involving prisoner rights issues. I don’t think I’ve written much about the law since I ended my relationship with PLN.

I first became involved in prisoner oriented litigation in the early 1960s; indeed, I received my first legal-related infraction at the U.S. Prison at Lompoc, California, in 1963, for “illegal procedure in writing a writ” (my crime was to assist another prisoner with his post conviction relief petition). In those days there was something called the “hands off doctrine,” which essentially held that prisoners have no rights the federal courts are bound to respect—that they are liter-ally slaves of the state. After all, the courts reasoned, the 13th Amendment to the U.S. constitution legitimizes this condition of slavery. With the advent of a growing prisoner rights movement, however, that old reasoning slowly changed. By 1972 I had won a case in the Ninth Circuit Court of Appeals holding that federal prisoners had a right to file class action habeas corpus petitions to challenge their conditions of confinement. See, Mead v. Parker, 464 F.2d 1108, 1111 (9th Cir. 1972). In those days I naively believed the courts would fairly apply the law to achieve the ends of justice.

While we have not totally gone back to the hands off doctrine, we’ve now got pretty much the same thing. Today they say while prisoners do have due process rights, the needs of the state, however frivolous they may be, trumps those rights—meaning of course that we have no rights at all.

In 2005 a unanimous U.S. Supreme Court has dashed the hopes of those liberal prisoners who look to the courts as an avenue of salvation from the ever-increasing levels of deprivation and repression being visited upon them by their cap-tors. In the case of Wilkinson, Director, Ohio DOC, et al. v. Charles Austin et al., No. 04-495, decided June 13, 2005, the high court noted that “In the OSP [a Supermax or SHU facility] almost every aspect of an inmate’s life is controlled and monitored. Incarceration there is synonymous with extreme isolation. Opportunities for visitation are rare and are always conducted through glass walls. Inmates are deprived of al-most any environmental or sensory stimuli and of almost all human contact. Placement at OSP is for an indefinite period, limited only by an inmate’s sentence. Inmates otherwise eligible for parole lose their eligibility while incarcerated at OSP.” The court went on to note that: “For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; his cell’s light may be dimmed, but is on for 24 hours; and he may exercise only one hour per day in a small indoor room.” Moreover, such placement is reviewed only once per year. Yet when all is said and done, the court held “that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior.” So how much process is due before locking someone up in one of these dungeons for an indefinite period? According to the court the answer is an “informal, non adversary procedures comparable to those we upheld in Greenholtz and Hewitt.” (See, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979) and Hewitt v. Helms, 459 U. S. 460 (1983).)

Which brings us to the question of how relevant is the legal front in today’s struggle for the rights of prisoners? As mentioned above, and as any astute prisoner rights activist knows, the 13th Amendment banned slavery except for those convicted of a crime. In other words, slavery still exists for some 2.2 million Americans. Worse, there are countless mil-lions more who have been disenfranchised (a modern Jim Crow) as a result of their status as previously convicted per-sons. While the issue of prisoner enfranchisement (right to vote) is pending appeal in the U.S. Court of Appeals for the 2nd Circuit, in a lawsuit filed by political prisoner Anthony Jalil Bottom, the outcome of that litigation will most likely turn on a political rather than legal rationale. Democrats know that if formerly incarcerated individuals had been permitted to vote in Florida’s 2000 presidential election George W. Bush would have never been president.

From California to Florida there is a push by liberals to en-franchise ex-felons. This has nothing to do with their love of prisoners, and everything to do with their love of the Democratic Party. Even the New York Times has editorialized on the need to give ex-felons and, shudder, prisoners the right to vote. They understand that, for the most part, prisoners will not be voting for pro-lock ‘em up; pro-death penalty, anti-parole Republicans. So here comes the vote, not from the courts, but from bourgeois politicians. Oh, the courts may hand down the ruling, but it will be the existing political climate that caused it to happen. In the late 1960s and early 1970s it was the prisoners that created the climate for judicially mandated reform and the expansion of our meager rights. Today, sadly, it is the liberal wing of the bourgeoisie that is providing the necessary impetus.

So before too the vote will come, at least to ex-convicts very possibly to those still on the inside. And in time, lots of time, the 13th Amendment may be modified to abolish slavery once and for all. But that's a story for another day. Today we need to talk about how we can use out small amount of influence to insure that this vote thing does not unfold in a manner that is anti-thetical to prisoner interests. The liberals will try to get the vote to felons using the absentee ballot, thus dispersing the impact of our ballot over the entire state. But prisoners are counted in the census for the county in which they are con-fined, and those counties receive funds from the state on the basis of that count. The prisoner vote should be concentrated in the respective county where the prison is located, not scat-tered by absentee ballots. Since most prisons are located in remote areas, with such a condensed voting block prisoners will be able to have local politicians catering to their legiti-mate needs—visiting, vocational facilities, etc.

There was a time when the rights of prisoners could be ex-tended through use of the bourgeois judicial system. As can be seen by Wilkinson, cited above, and the numerous cases just like it, those days are all but over. The courts can from time-to-time still be used for the occasional defensive strug-gle, but to expect any significant advances to be made as a result of litigation is an exercise in futility—we are merely throwing wadded up paper balls at them. The task of today’s advanced prisoners is not litigation, but organization. And the issues we should be organizing around are the right to vote (winning the franchise for prisoners) and the final aboli-tion of slavery in the United States. Conjugal visits, wages, and myriad other issues can be raised at the same time, but the guiding star should be the elimination of the pro-slavery segment of the 13th amendment.