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Harris v. Garner: Statement of the Issues, Summary of the Argument, Argument (21 Oct 1998)

STATEMENT OF THE ISSUES

Whether the District Court's interpretation of the Prison Litigation Reform Act's "physical injury" requirement violates accepted canons of statutory construction by reading the Act to abrogate binding treaty obligations and customary international law in the absence of any clear statement of intent by Congress or the President.

SUMMARY OF THE ARGUMENT

Treaties ratified by the U.S. Senate and principles of international law embraced by U.S. courts confer on persons a right to be free from torture and other cruel, inhuman or degrading treatment. Congress had no intention of altering these binding commitments when it enacted the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 801-810, 110 Stat. 1321 (1996). In light of these international obligations and the lack of demonstrated Congressional intent to derogate from them, an ordinary and sensible interpretation of the PLRA's "physical injury" requirement, codified at 42 U.S.C. 1997e(e), permits inmates to bring claims for psychological pain from conduct rising to the level of torture and cruel, inhuman or degrading treatment. Such a reading would reconcile the statute with international legal obligations accepted by the legislative, executive, and judicial branches in this country.

In the present case, however, the District Court relied on an interpretation of section 1997e(e) which would deny the claims of persons subjected solely to deliberate acts of psychological torture and other cruel, inhuman or degrading treatment. The Magistrate Judge held that the Seventh Circuit case of Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997), is the controlling construction of section 1997e(e). The Zehner court held that section 1997e(e) precluded prisoners from bringing emotional distress claims for passive exposure to asbestos. The Zehner plaintiffs were not the victims of malicious and sadistic conduct. Other remedies were open to them, including claims for physical injury in the event that asbestos-related disease develops. The lower court's misplaced reliance on Zehner in the present case raises the specter of negating the claims of people deliberately and sadistically subjected to agonizing and prolonged emotional pain, for which no other relief is possible.

If upheld in the present case, the District Court's interpretation of the "physical injury" requirement would abrogate binding treaty commitments without congressional authorization and would violate the two-centuries-old principle of statutory interpretation that courts should not construe legislation to violate international law unless Congress explicitly authorizes the derogation. This Court should follow established norms of statutory construction, should enforce congressional will, should not disrupt settled rules, and should adopt the simple, reasonable interpretation of the statute which would allow inmates to bring claims for emotional pain from conduct rising to the level of torture and cruel, inhuman or degrading treatment.

ARGUMENT

I. Torture and other cruel, inhuman or degrading treatment, whether physical or psychological, are illegal in the United States.

The law of the United States does not allow torture, even if the torture leaves no physical scars. The President has signed and the Senate has ratified two treaties that expressly obligate this country to prevent acts of torture and other cruel, inhuman or degrading treatment as well as to provide victims of such acts with adequate remedies. First, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), June 26, 1987, 1465 U.N.T.S. 85, binds parties to "take effective legislative, administrative, judicial or other measures to prevent acts of torture . . . .," art. 2, and to "prevent . . . other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture," art. 16.1. Parties are obligated to ensure that "the victim of an act of torture has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible," art. 14.1. Second, the International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U.N.T.S. 171, 174-75, ratified by the Senate in 1992, states that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment," art. 7, and obligates the United States to ensure that victims "shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity," art. 2.3(a).

In ratifying these treaties, the Senate has defined explicitly the type of behavior that constitutes torture and cruel, inhuman or degrading treatment for the purpose of U.S. law. According to the Senate, torture does not impose any threshold of physicality:

[I]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses of personality.

136 Cong. Rec. S17486-01.

Furthermore, the Eleventh Circuit and other U.S. courts have held that customary international law forbids torture and other cruel, inhuman or degrading treatment. In Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996), this Court found that torture and cruel, inhuman or degrading treatment violated customary international law. In Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment), the court found violations of customary norms where the plaintiffs, six Haitians, were, among other things, dragged up flights of stairs, deliberately starved, and paraded on national television and falsely accused of being involved in an assassination plot. Id. at 209.

Customary norms that prohibit cruel, inhuman or degrading treatment do not require a prior showing of physical injury. The decisions of international tribunals graphically suggest scenarios that involve intense physical and mental suffering but would not support a claim under the District Court's reading of 42 U.S.C. 1997e(e). See, e.g., Ireland v. U.K., 25 Eur. Ct. H.R. (ser A.) at 59, 66 (1978) (forcing detainees to stand against a wall for long periods, placing hoods over their heads, subjecting them to noise, depriving them of sleep, and depriving them of food and drink); Greek Case, 12 Y.B. Eur. Conv. on H.R. 1 (1969) (Eur. Comm'n on H.R.)(prolonged isolation of detainees, imprisonment of detainees in cells from which they could hear the cries of torture victims, threats to torture the detainees' relatives or friends in their presence, and interrogations during which prisoners were stripped and left naked); Minanga v. Zaire, Communication No. 366/1989, reprinted in 1 Int'l Hum. Rts. R. 2/158, 160 (1994) (detainee was "strapped to the concrete floor of his cell for close to four hours"); Estrella v. Uruguay, Communication No. 74/1980, reprinted in 2 Selected Decisions of the Human Rights Committee Under the Optional Protocol 93, 94 (1980) (prisoner, a concert pianist, was repeatedly threatened with the amputation of his arms).

The Senate has stated that for the purpose of U.S. law, the cruel, inhuman or degrading treatment described in the Convention Against Torture and the ICCPR is equivalent to "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth amendments to the Constitution of the United States." 136 Cong. Rec. S17486-01 (Oct. 27, 1990); 138 Cong. Rec. S4781-01 (Apr. 2, 1992).

Courts have long recognized that prisoners have Eighth Amendment claims even when their injuries are not physical per se. Eighth Amendment violations are predicated on the motives and conduct of the violators -- on the infliction of pain, not on the appearance of injury. As Judge Posner of the Seventh Circuit reasoned:

To require a threshold showing of an "objective" injury, the sort of thing that might reveal itself on an x-ray, or in missing teeth, or in a bruised and battered physical appearance, would confer immunity from claims of deliberate indifference on sadistic guards, since it is possible to inflict substantial and prolonged pain without leaving any "objective" traces on the body of the victim.

Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996) (citations omitted). Furthermore, substantial and prolonged pain can be psychological as well as physical. As Judge Posner wrote in Thomas v. Farley, 31 F.3d 557, 559 (7th Cir. 1994), "[m]ental torture is not an oxymoron, and has been held or assumed in a number of prisoner cases . . . to be actionable as cruel and unusual punishment." Judge O'Scannlain of the Ninth Circuit recognized in a case involving cross-gender body searches that "severe psychological injury and emotional pain and suffering" counted as "infliction of pain" under the Eighth Amendment. Jordan v. Gardner, 986 F.2d 1521, 1525, 1528 (9th Cir. 1992). Judge Easterbrook gave a detailed catalogue of acts that constitute cruel and unusual punishment even though they do not inflict grievous physical injury: "Many things -- beating with a rubber truncheon, water torture, electric shock, incessant noise, reruns of 'Space 1999' -- may cause agony as they occur yet leave no enduring injury. The state is not free to inflict such pains without cause just so long as it is careful to leave no marks." Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988).

Therefore, treaties ratified by the Senate, statutes passed by the Congress, and customary international law recognized by U.S. courts forbid the infliction of torture and other cruel, inhuman or degrading treatment, whether physical or psychological.

Neither Congress nor the President indicated that Section 1997(e)e overrides the prohibitions on torture and other cruel, inhuman or degrading treatment.

In enacting the PLRA, Congress manifested neither awareness that it might be abrogating the United States' treaty obligations or customary international law, nor any desire to do so. The text of the PLRA itself makes no reference to the obligations of the United States under international law. Congress did not debate the provisions of the PLRA at any significant length, and President Clinton did not even mention the PLRA when he signed the larger bill, the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, to which Congress had attached the PLRA. See Statement on Signing the Omnibus Consolidated Rescissions and Appropriations Act of 1996, 32 Weekly Comp. Pres. Doc. 726 (Apr. 29, 1996).

To the extent that the sponsors of the PLRA indicated the types of claims they wished to foreclose, they focused on inmates suing over melted ice cream and chunky rather than smooth peanut butter. See 141 Cong. Rec. at S14629 (daily ed. Sept. 29, 1995). The sponsors specifically did not seek to foreclose meritorious claims. Senator Orrin Hatch (R-Utah), one of the bill's sponsors, stated on the Senate Floor, "I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised." 141 Cong Rec. S14627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch). Representative Charles Canady (R-Fla.) indicated that "[t]his bill has been carefully crafted to ensure that people who have a legitimate claim, people whose rights, whose constitutional rights, are in fact being violated, can have a remedy." 141 Cong. Rec. H1563 (daily ed. Feb. 10, 1995) (statement of Rep. Canady).

The only claims the sponsors sought to close, e.g., suits over ice cream and peanut butter, are clearly not protected by international law and are not the subject of the present litigation. There is a qualitative difference between such frivolous claims, which are clearly foreclosed by the PLRA, and claims rising to torture and other cruel, inhuman or degrading treatment, which the PLRA leaves cognizable.

III. Well-established rules of statutory construction dictate that courts construe the PLRA in light of the United States' international obligations.

This legislative history becomes even more significant to the proper construction of the PLRA because long-accepted canons of statutory interpretation compel judicial restraint in matters of international law. Chief Justice Rehnquist himself endorsed this principle: "It has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, [6 U.S. (2 Cranch) 64, 118] (1804) [Marshall, C.J.] that 'an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains. . . .'" Weinberger v. Rossi, 456 U.S. 25, 32 (1982). Justice O'Connor recognized that courts should not abrogate binding international law without plain statements of Congressional intent: "There is . . . a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. . . . Legislative silence is not sufficient to abrogate a treaty." Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); see also Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986) ("To the extent possible, courts must construe American law so as to avoid violating principles of public international law.") (citing Murray v. The Schooner Charming Betsy, 6 U.S. at 118). Based on this long-standing canon of interpretation, it is most reasonable for this Court to conclude that 42 U.S.C. 1997e(e) is wholly consistent with binding international law obligations and thus does not preclude prisoners from bringing claims for torture and other cruel, inhuman or degrading treatment.

The Charming Betsy principle has endured as a foundation of American law because courts simply should not make foreign policy. Judge Bork articulated how judicial activism in foreign affairs can gravely compromise the Executive, Congress and ultimately the citizenry who elected them to make foreign policy decisions:

It must not be forgotten that a determination by the political branches concerning the obligations of the United States is also a determination about the conduct of American foreign policy. Defining and enforcing the United States' obligations under international law require the making of extremely sensitive policy decisions, decisions which will inevitably color our relations with other nations. Such decisions "are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility."

Finzer v. Barry, 798 F.2d 1450, 1458-59 (D.C. Cir. 1986) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)), aff'd in part and rev'd in part sub nom., Boos v. Barry, 485 U.S. 312 (1988). The Charming Betsy principle is an exercise of judicial restraint that for nearly two centuries has kept the will of a single District Court from trumping a two-thirds vote of the Senate on treaties and has allowed the proper institutions of government to make unambiguous foreign policy based on deliberate consideration of this country's interests.

IV. Affirming the District Court's interpretation of section 1997e(e) would alter the balance of powers among branches of government, give impunity to violations of international law, and risk harming the United States' interests.

Congress gave no indication of any intent to make foreign policy with the passage of the Prison Litigation Reform Act, yet the District Court's reading of it effectively abrogated this country's international obligations. In so doing, the District Court turned the PLRA into an act that provides immunity to those who would psychologically torture prisoners.

Under the District Court's reading of the PLRA, prisoners would not be able to bring claims if prison employees put loaded pistols to their heads. See, e.g., Northington v. Jackson, 973 F.2d 1518, 1523-24 (10th Cir. 1992); Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986). Prisoners would not be able to bring claims if prison employees threatened them with butcher knives. See, e.g., Douglas v. Marino, 684 F.Supp. 395, 398 (D.N.J. 1988). If other parties of the Convention Against Torture and International Covenant on Civil and Political Rights similarly abrogated their commitments, American citizens abroad would be put at direct risk of torture. The political branches, not the judiciary, would be responsible for dealing with any resulting crisis.

Furthermore, foreign countries may cease extraditing fugitives to the United States. Article 3 of the Convention Against Torture prohibits parties from extraditing individuals to jurisdictions "where there are substantial grounds for believing that [they] would be in danger of being subjected to torture." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 26, 1987, art. 3, 1465 U.N.T.S. 85, 114. The European Court of Human Rights has in several cases imposed absolute restrictions on extradition to countries that condone torture and other cruel, inhuman or degrading treatment. In a recent case involving the proposed extradition of an Indian national to India, the European Court held that

[t]he prohibition provided by Article 3 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms] against ill-treatment is . . . absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion.

Chahal v. U.K., 23 Eur. H.R. Rep. 413, 457 (1996) (Eur. Ct. H.R.).

Reasonable and accepted canons of statutory construction allow Congress and the President to consider carefully the potential risks of abrogating international law and give American voters the opportunity to elect political representatives who reflect their views on foreign policy. This Court should follow these canons by interpreting the PLRA in a way that respects the legislative intent not to abrogate binding international obligations.

CONCLUSION

For all of these reasons, amici believe that this Court should construe section 1997e(e) to allow inmates to continue to bring suits for torture and other cruel, inhuman or degrading treatment. Such an interpretation of the Prison Litigation Reform Act is consistent with the United States' duties under ratified treaties, customary international law, and Eighth Amendment jurisprudence. Lacking a clear statement to the contrary by the legislative or executive branches, this Court should follow the well-established Charming Betsy principle and construe section 1997e(e) consistently with existing U.S. obligations.

Respectfully submitted,

Natsu Saito
Associate Professor of Law
Georgia State University
Fourth Floor, Urban Life Bldg.
140 Decatur Street, S.E.
Atlanta, GA 30303
Counsel of Record for Amici

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for the opposing parties two copies of the foregoing document by first class United States mail in a properly addressed envelope with adequate postage thereon. The individuals served are:

Robert E. Toone, Esq.
Stephen B. Bright, Esq.
83 Poplar Street, N.W.
Atlanta, Georgia 30303-2122
Attorneys for Plaintiffs-Appellants

Diane Festin LaRoss, Esq.
John C. Jones, Esq.
40 Capital Square, S.W.
Atlanta, Georgia 30334-1300
Attorneys for Defendants-Appellees

This 21st day of October, 1998.



______________________________

Natsu Taylor Saito
Associate Professor of Law
Georgia State University
Fourth Floor, Urban Life Bldg.
140 Decatur Street, S.E.
Atlanta, Georgia 30303
(404) 651-4158
Counsel of Record for Amici


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