Substantive Rights and Prison Conditions

The following is a transcript of a panel at “State Constitutions and the Limits of Criminal Punishments,” which took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024. The transcript is edited for clarity.

Speakers:

• Kristen Bell, Assistant Professor of Law, University of Oregon School of Law
• Meredith Esser, Assistant Professor of Law, Director of Defender Aid Clinic, Wyoming College of Law
• Kathrina (Kasia) Szymborski Wolfkot, Senior Counsel, Managing Editor of State Court Report, Brennan Center for Justice
• Tara Herivel, Attorney at Law, Portland, Oregon

Moderator:

• Megha Ram, Supreme Court and Appellate Counsel, MacArthur Justice Center

Megha Ram: My name is Megha, as he mentioned, and actually, before I start, can we just make sure we have Tara up on the screen? Okay, so while we’re getting Tara up, I’ll just say, I do prisons conditions litigation, and I hate to admit it in this group, but a lot of that work has been in the federal courts under federal constitutional law. That has been changing in the last couple of years as I’ve been doing more kind of state court work, and that’s in large part due to the work, the exciting and innovative work of people on this panel, and of other people in this room. So I’m really excited to be moderating this panel on how we can use state constitutions to improve conditions in prisons.

The panelists who I’m going to introduce in just a second are going to start by describing some of the limitations of federal conditions litigation, and how state constitutional jurisprudence can be more protective. Then we’re going to do a deeper dive into one particular constitutional provision, the “unnecessary rigor” clause, that exists in a handful of state constitutions. We’ll talk about the history of the clause, its development, and how we can use it to improve conditions, and how lawyers are already doing that through a case study in a particular state.

Then we’re going to wrap up with a discussion about barriers to doing that work. Because even though it can be a good place to be doing this work, there are still a lot of challenges to doing that in practice. And I want to make sure we have a chance to talk about that too, and then hopefully we’ll leave a little time for questions.

So without further ado, I’m going to start introducing the panelists, hopefully we’ll get Tara on by the time I get to her. Immediately to my left is Kristen Bell. She’s an assistant professor at the University of Oregon School of Law, where she’s taught criminal law and appellate advocacy, as well as inside-out seminars in Oregon prisons. In addition to publishing several articles on parole release decisions, her scholarship includes two articles on state constitutional law. The first is on state constitutional doctrines of vagueness, and the second focuses on the unnecessary rigor clause, which is what she’s going to be telling us all about in a little while.

And then to her left is Meredith Esser, who is an assistant professor at the University of Wyoming College of Law, where she directs a post-conviction and second look criminal defense clinic and teaches courses in appellate litigation and prison law. Meredith previously spent eight years as an assistant federal public defender, and her scholarship focuses on the intersection between conditions of confinement and sentencing, as well as Eighth Amendment doctrine and theories of punishment.

And then all the way at the end, over here, is Kathrina, or Kasia, Wolfkot. She’s senior counsel on the Brennan Center’s Judiciary Team, where she focuses on using state constitutions to expand rights. She’s also the managing editor of State Court Report, a Brennan Center publication about state courts and state state constitutional law that I hope you will all sign up for. Kasia was previously my colleague at the MacArthur Justice Center as well, where we worked together on cases challenging inhumane conditions in prisons, poor medical care and so on.

Okay, once Tara comes on, I can introduce her as well. I want to turn it over to Meredith first, to talk us through, what are the problems in federal constitutional doctrine when it comes to litigating prison conditions cases? I think that’s the premise of why we’re here, and why it’s important to look to state courts and state constitutions, but I think especially for people that don’t do prison conditions litigation, it’s helpful to start with what is so bad about doing this under federal constitutional law and federal courts.

Meredith Esser: Thank you. So I feel like I have the easy job of setting up the panel and talking about the federal context from a number of different angles. And I think this kind of dovetails nicely with the end of the last talk by Professor Resnik, as well as the keynote address from David Shapiro, touching on some of the challenges that exist in the federal courts with conditions of confinement litigation. And I don’t know, I think a lot of you all are probably more practiced at the nuts and bolts of this type of litigation that I am. I was a federal public defender and only really dabbled in civil rights litigation in federal court, but in order to get us all on the same page, I’m going to talk about some of the structural barriers that exist to federal Eighth Amendment litigation.

So as we all know, people who are incarcerated experience severe forms of harm, and these harms can range from extreme medical neglect, to physical or sexual abuse, prolonged solitary confinement, impacts of overcrowding. And there are some good cases on these kinds of conditions, but they are few and far between, and that is because of some of the structural barriers that I’ll go through. I’m going to talk about four categories, starting with exhaustion and the Prison Litigation Reform Act (PLRA), and then in what I call informational imbalances. So access to counsel, research materials, etc., the inadequacy of the remedy. And then also the Eighth Amendment sienter requirements that have been discussed.

From the perspective of the incarcerated person, the first barrier that exists is the PLRA and the exhaustion requirement that that entails — and even before that, there is usually an onerous grievance process that happens in a carceral facility. A person will have these grievance forms. Often, they don’t come with instructions. Often, if they are transferred from institution to institution, there will be different rules at different institutions, quick turnaround time for appeals. The Prison Litigation Reform Act, the cases that have come out interpreting the provisions that require a person to exhaust that process have said that you need to do what’s called perfect exhaustion, which means that you can’t make any mistakes. And if you make any mistakes, even if you don’t speak English, even if you have a disability, even sometimes if you are in solitary confinement, when your appeal deadline passes, you’re out of luck.

That means that the Prison Litigation Reform Act was actually passed for the purpose of preventing people from getting into federal court. So this is actually by design, that folks are hindered from access to the courts. Added to that is that, the Prison Litigation Reform Act also caps attorneys fees for prisoner cases, which means that a lot of lawyers have a disincentive to actually bringing those cases because they won’t get paid, or they will get paid very much.

And additionally, there are not very many resources for folks who want to represent themselves in these cases. And then the remedies available for when you even prevail, I think, are inadequate. So on the one hand, you’ve got the qualified immunity doctrine, which eviscerates the possibility of money damages in many cases, but I think beyond that, remedies for harms that befall people in prison don’t necessarily actually address the harm.

So if you’ve got someone who’s experiencing physical abuse, you know money damages can only really go so far, and so I think that’s something that is not really discussed a lot in the literature is the inadequacy of the Eighth Amendment. But injunctive relief is hard to come by. Injunctions are hard to enforce. And then money damages are kind of an inadequate remedy, say, for medical neglect that causes permanent injury.

And then the big one that I want to talk about, in a little more detail, is the Eighth Amendment scienter requirement. The deliberate indifference standard requires that a prison official must be both aware of facts from which the inference could be drawn that a substantial risk of harm exists and must also draw the inference. So essentially, the Supreme Court has said that in order to prevail in an Eighth Amendment claim there, the incarcerated plaintiff needs to show that someone was deliberately indifferent to a substantial risk or serious risk of harm or denial of a basic human need, and that’s basically a criminal recklessness standard.

What’s the problem with these standards is that it’s easy for institutional defendants or prison officials to avoid liability through a number of different means. In particular, like in the Covid-19 era — I think a lot of folks were litigating these cases — a showing of deliberate indifference requires that you did absolutely nothing. So a lot of prisons escaped liability by showing that they gave out bars of soap to people, and that meant that they weren’t completely indifferent to the problems that were happening during Covid-19, but it didn’t actually create meaningful relief for folks.

I think in closing on this particular setup, is that even the very minuscule, I guess, path to or narrow path to relief is in peril. And I think that’s something that’s been sort of hinted at a few times today. With the current makeup of the Supreme Court, it’s possible that the court will completely dismantle the possibility of relief for incarcerated people by saying that the Eighth Amendment’s punishment clause doesn’t apply to conditions at all. So that’s where we are. Hopefully the other panelists can give us a more uplifting view of things.

Kasia Szymborski Wolfkot: Can I jump in, actually, before we go to the next question? I just wanted to shout out my colleague, Hernandez Stroud, who is working on a paper that outlines state PLRA equivalents. I know when I was at MacArthur, I would have done anything for that paper. So it will probably come up at the next panel. But Meredith mentioned the PLRA, so I just wanted to mention that.

And also regarding qualified immunity, I’m sure, most of the people in this room don’t need to elaborate on how terrible it can be, but I also know that there are some law students watching or listening. So I just wanted to really quickly give an example from my time at MacArthur, a case that Megha worked on as well, where an elderly man who had open sores on his ankles was forced to stand in a backed up shower that somebody else had defecated in, and the water went above his ankles, and he was in there for 40 minutes. When he got out the correctional officials took everything out of his cell that he could have used to clean himself, and then didn’t let him shower for a week, and he developed a life-threatening infection. It went up to the 11th Circuit, and they said, “this is really bad, but, qualified immunity — the officers had no way of knowing that this was unconstitutional.”

We marshaled all these cases where there was unnecessary contact with feces and you’ve said it’s unconstitutional, and they say, but those were different circumstances. Those were not exactly this circumstance. And so qualified immunity, it can, occasionally, the way it’s applied, is just very absurd. So I think everybody here probably knows that. But, just in case there are some law students, this is something to get up in arms about.

Megha Ram:Kasia, I’m actually just going to flip it right back to you. We heard from other people on previous panels that state constitutions have Eighth Amendment analogs, so things that look either sometimes exactly like the Eighth Amendment, prohibiting cruel and unusual punishment, other times, prohibiting cruel or unusual punishments, or just cruel punishments, or some sort of variation on that. So Kasia, can you tell us a little bit about those state Eighth Amendment analogs and how they can be or maybe are more protective sometimes in the conditions context?

Kasia Szymborski Wolfkot: I’m not going to get into that much detail on the way that they’re written. I think Will Berry did an excellent job of that this morning. But going off of what Meredith said about the subjective deliberate indifference standard in federal courts, and how difficult that can be — there are state courts that have rejected it, and in particular, I’m thinking about the Washington Supreme Court in a case called In re Williams. They consider the federal deliberate indifference standard in a case about proper hygiene during the Covid-19 pandemic for a man who relied on a wheelchair. And they said, instead, here in our state, when you’re bringing a claim like this, you just have to show that the conditions create an objectively unreasonable risk of harm, which is an easier standard for plaintiffs.

So, I think that that’s one doctrinal opportunity in the conditions space, in bringing state constitutional claims. You can try to convince state courts to reject that standard and adopt a different one. Another opportunity, another doctrinal opportunity — and to my knowledge, no court has, like, has officially, explicitly adopted this, but it’s come up all day — I know Kyle Barry is always talking about this idea of eroding the line between a sentence and the conditions that somebody is held in. I think that there’s a chance that we could get state courts to adopt that. It is unlikely that it would pass federal Eighth Amendment muster for a judge to sentence somebody to prison beatings. But if you go to prison, you get a term, a prison sentence, and you experience prison beatings every day there, it’s much harder for you to then challenge that. And if Justice Thomas had his way, you wouldn’t even have a claim in federal court. Because, I guess that’s not punishment. But that doesn’t make sense. David Shapiro’s talk this morning showed us that at the founding, that line was blurred.

I was chatting with Salil at lunch, and he mentioned that, during Covid-19, it seemed judges were starting to do that a little bit more as people challenged their Covid-19 conditions. And I’ve noticed, just reading news articles that it sometimes feels like judges are intuitively doing this. I’ll read an article that says, about the jail in Brooklyn, the Metropolitan Detention Center. I’ll read an article in The New York Times that says, the judge decided not to send this criminal defendant there, citing the terrible conditions there.

So it’s an intuitive step to take, even if no court is explicitly doing it, but as Kyle Barry said this morning, state courts can start from scratch on this stuff. They don’t have to adopt the federal doctrine. As I keep referring back to what everybody else has said, because what people have said today here has been very inspiring, and I’ve been learning a lot.

As Justice Liu said, justices tend to look at what’s been written, and that’s why they’re looking to the federal law. So I’m glad that we’re doing this and that these scholars here are writing about this, because when we write articles about this, we try to put forth other ways that these provisions can be interpreted. That is something that has been written that judges can then look to.

Continuing with this opportunity theme, in general, I think that there has not been a lot of litigation in this area. I was going to finish with that, but I’ll just jump right to it. There just hasn’t been a lot of litigation in this area. The bulk of the litigation under Eighth Amendment cognates has been challenging excessive sentencing. There are lots of reasons for that, and we’re going to cover those later.

But these are not the only provisions. Eighth Amendment cognates are not the only provisions that can protect or improve the lives of incarcerated people. There are some provisions that have been interpreted to protect bodily integrity, as Alexa Van Brunt mentioned to me this morning in a conversation. During Professor Resnik’s talk there was discussion about anti-slavery measures. Montana’s constitution disallows governmental immunities, and their supreme court has interpreted that as meaning qualified immunity isn’t allowed.

State constitutions can be more easily amended than the federal Constitution. So there was an effort this year in Ohio to get a proposed ballot initiative on the ballot there that would abolish qualified immunity in the state. It didn’t make it to the ballot. But the point is, there is hope here, a chance to not only interpret Eighth Amendment cognates as more protective, but also to look to other provisions. And if your constitution doesn’t have the provision that you want, I don’t know, try to get it on the ballot. And then finally, of course, there’s these unnecessary rigor clauses. So I’m going to pass it over to others to discuss those.

Megha Ram:So the unnecessary rigor clause is Kristen’s area of expertise, so I’m just going to ask her to kind of talk us through what it is, where it exists, it’s history and development, and then Tara, who we now have with us, and I’ll introduce her right after Kristen speaks, is, I think, an exception to what Kasia said about there not being a ton of conditions litigation under state constitutional law. Tara has been doing a ton of litigation under the unnecessary rigor clause, successfully, to improve conditions. So we’ll start with Kristen and then go to Tara for that.

Kristen Bell: Thank you. I’m going to try to keep this very short so I can give a lot of time to Tara to talk about how it’s working in practice. Also, everything I say is going to be in an article that’s coming out of the Tennessee Journal of Law and Policy.

A brief summary: five states have an unnecessary rigor clause. Tennessee was the first in 1796, then Indiana, then Oregon, then Wyoming, then Utah. There’s no special pattern between all these five states. I spent a long time trying to find one. They often copied provisions from other state constitutions, and they picked them up from each other.

What I did was look through old — digitized now — newspapers and case law starting in 1700, until now, to see how this phrase, “unnecessary rigor,” was used. It’s not something we use in normal conversation these days. But it was used in normal conversation in the 1800s when these constitutions were made.

I wanted to figure out: What did people mean by the phrase, what was the general meaning? And there were two themes that really emerged. The first is, it was used to criticize mandatory rules that didn’t work in specific circumstances. So if you think of rigor mortis — stiff — rigor in this sense is, unnecessary rigor is, being overly stiff in the application of rules. I think there’s a potential application here to mandatory sentencing, but also, any mandatory rules in governance of people who are arrested or confined. A fun example of this is in an advice column in a Wyoming newspaper. A woman wrote in asking if she could accept gifts from a young man who was not her husband. And the response in this etiquette column was that the usual rule is, no, an unmarried woman may not accept those gifts unless they’re from her husband, unless it is flowers or bon bons, which are perishable, and in that case, it would be unnecessary rigor to refuse. [Laughter.] So this was a phrase that was used to criticize applying a rule when it doesn’t make sense in the circumstances.

Megha Ram: And sorry, can I interrupt you for one second, just because I think we’re using unnecessary rigor clause as a shorthand, and just to be super clear for law students or others who haven’t come across it, but these provisions are parts of the state constitution that say: You cannot treat incarcerated people with unnecessary rigor.

Kristen Bell: Yes, it’s people arrested or confined. It applies also to arrest and policing, as well as in jails and prisons and civil confinement. So another theme in the historic usage, in addition to this sort of rigor, stiffness idea was a limit on arbitrary power. The phrase appeared in a Georgia and a Louisiana slave code. The phrase also was used to criticize when Andrew Jackson imposed martial law in Louisiana in 1815 and to criticize dictators abroad, just as a general limit on arbitrary power.

Both of these uses — the mandatory one and the limit on arbitrary power — appeared in a lot of contexts of criminal law. It’s not limited to prison conditions or jail conditions. I said it’s also in arrest and policing, in sentencing, and also in rules of procedure.

The text of the clause, I think it’s important. It’s: “No person arrested or confined in jail shall be treated with unnecessary rigor.” The word punishment does not appear in this clause, so this is one way in which it’s quite different from the cruel and unusual punishment clause, and I want to share a little bit about how it’s been interpreted. There are a lot of differences across the states. Wyoming and Tennessee have pretty much done nothing with the clause. In Indiana, it’s been interpreted very narrowly. So the Indiana Supreme Court says it prohibits only extreme physical abuse. In Oregon and Utah, it is used much more broadly to prohibit. In Oregon, the standard is a cognizable indignity that is not justified by necessity.

Our lead case in Oregon, Sterling v. Cup, was argued as a federal right to privacy case. It was in regard to cross-gender pat downs of intimate areas in prisons. And the Oregon Supreme Court ordered supplemental briefing on the unnecessary rigor clause, and decided it under the unnecessary rigor clause. The court’s opinion gave us this idea of a cognizable indignity, and that it cannot be justified by necessity. I want to leave it to Tara to say more about what that means and how it’s been interpreted in Oregon.

Utah is somewhat similar, but one notable thing in Utah is damages are allowed. The court found that this was a self-executing provision, which is quite interesting. And both in Oregon and Utah, in the medical conditions, we don’t see that they were talking about, in the federal cases, both a subjective and an objective piece. Under the unnecessary rigor clause is only the objective piece. There’s no need for a subjective showing of willful indifference. The reasoning there is it doesn’t have to apply to punishment. So there doesn’t have to be any kind of intent behind it. It’s just whether it’s objectively unreasonable. So I will leave it there and let Tara take over.

Megha Ram: I’ll go ahead and introduce Tara now. Tara Herivel is a prisoners’ rights attorney in private practice in Oregon. She litigates conditions of confinement cases in state habeas and federal 1983 cases, and practices federal criminal defense. And as I mentioned earlier, she really is a trailblazer in applying the unnecessary rigor clause in the Oregon constitution to obtain relief for incarcerated people. So she’s litigated both under that clause and the Eighth Amendment and the state counterpart. In doing so, she obtained a lot of injunctive relief, including gender affirming care for transgender prisoners, prohibitions against the use of solitary and orders for mental health and medical care. During the pandemic, she created and directed a habeas project that resulted in over 600 petitions for habeas relief from Covid-19 exposure, which led to new and progressive habeas case law in Oregon. Tara, if you could just tell us a little bit about your unnecessary rigor litigation in Oregon. You know, what sorts of conditions have you challenged? What kinds of remedies have you been able to secure?

Tara Herivel: [On screen] Thank you everyone for letting me loom over you today. I’m an evangelist for the use of this constitutional provision. I’ve been an attorney for 23 years. I have never seen anything like the breadth and depth and nuance of this unnecessary rigor prohibition. It is in rapid development, just over the last two years after we had a very important case arise from the Covid-19 project that Megha mentioned. It really fleshed out, for the first time, in a trial setting, with a lot of evidence, in a Covid-19 case, what unnecessary rigor means.

Before giving some examples of the litigation that I’ve been involved in, I want to talk a little bit about how Oregon has a particular framework that makes habeas practice, which is the bulk of my practice, and claims like unnecessary rigor, so robust, or to have the potential to be so robust. We have habeas statutes for all that have permissive appointment of counsel for people who file habeas petitions, which is huge. So that goes through our Office of Public Defense, and they are funded like any other indigent prisoner who is getting an attorney for criminal defense. It is not a right, but most people who file their habeas petitions, which they do pro se, for the most part, do get attorneys appointed. Especially now that habeas has become a more robust practice in Oregon.

We also have the unnecessary rigor clause, which is incredibly broad, and I’ve been able to use it on behalf of prisoners in a wide array of cases that involve not so much rules, but more practices, and the kind of unconstitutional practices by Department of Corrections (DOC) that we’re all familiar with here. The unnecessary rigor clause is — I’ve never seen a constitutional right that puts the prisoner at the center of the analysis, and that is what you have in the interpretations of the unnecessary rigor clause, in terms of cognizable indignity. We’ll talk about a little more in a moment.

And so with a prohibition against unnecessary rigor in a practice or policy by the prison — that’s the context I use these — or the jail, I use this provision to challenge things that offend the prisoner’s cognizable indignity and are unjustified. You can use that application to any abuse in the prison context. So far, remarkably, the bench has been very accepting and, applying unnecessary rigor once they understand it, from the most conservative counties to the most liberal in Oregon. It’s gained quite a bit of traction in the courts. There’s also another strength in Oregon habeas statutes, which is, it requires immediate judicial scrutiny of claims. You could get your case on an expedited docket. And if you compare all of these very favorable vehicles to potential justice, to say, federal court and in 1983, I mean, it’s just a stark difference.

The unnecessary rigor clause was very underused historically, and until fairly recently, there were very few trials in habeas practice, and very few people doing it. The unnecessary rigor clause came up in the context, typically of motions to dismiss at the very early stages of the case. It didn’t involve a lot of evidentiary analysis or development.

The Covid-19 case that led to the one of the most central cases now establishing what a necessary rigor is, was called Lawson v. Kane, and that came out of a 2020 Covid-19 project that I created with people like Kelly Simon, who’s the legal director at ACLU. In the time of Covid-19, seeing exactly how horrific this would be for prisoners, particularly, we drafted petitions, sample petitions, that had Covid-19 claims in them for failure to protect from contraction or spreading Covid-19. We got them to hundreds of prisoners across the state, sent out hundreds of them and had hundreds of petitions filed, I think it was close to 700.

And out of that effort came a much more robust habeas practice, many more people learning about how to practice habeas corpus, prisoners learning that this was unnecessary rigor. It was a viable legal theory that you were unaware of, in addition to the standard deliberate indifference Eighth Amendment and then the state counterpart. It created groundbreaking law in terms of interpreting unnecessary rigor.

So in addition to what Professor Bell said about it having a purely objective framework, the court also fleshed out what a cognizable indignity is. It said what is or is not an indignity is largely a matter of social and individual psychology. The court analyzed indignity viewed from the purpose of its imposition, the viewpoint of the prisoners, or in the perception of the general public. And the court said that prison practices that constitute cognizable indignity may differ widely among individuals and change over time with changing social expectations.

That is radical stuff. And I started using that case and beautiful analysis from Judge Baggio, who was a trial court judge, and now is a federal judge in Oregon, in a series of transgender refusal to provide gender affirming care transgender prisoner cases. In each case, the prison did have a policy in this, in these cases of excluding by blanket exclusion, particular kinds of gender affirming care, like electrolysis, saying it was cosmetic and not acknowledging that it has incredible medical effectiveness for treating gender dysphoria. So we brought several cases with psychiatrists and medical doctors who could speak to the fact that certain kinds of medically effective evidence based gender affirmation treatments for gender dysphoria were being excluded. It was unjustified. It was out of step with social and psychological progress, and it caused cognizable indignity, specifically to the prisoner. And I have to say, every single transgender case that involves claims like this has been successful, so there has been a kind of support from the bench. You don’t see this in a lot of cases for prisoners. But in every single case, this was deeply offensive to the bench, and so they found not only deliberate indifference, but also unnecessary rigor.

I’ve also had cases where clients — this is pretty common in Oregon and probably all over the place — who have mental health diagnoses that are well documented, are kind of disappeared or ignored in the records. This is because it allows the prisons to house them in segregation indefinitely if they don’t have what’s classified as a serious mental illness that in Oregon at least prohibits holding somebody with a serious mental illness more than 30 days in segregation.

I had a client who also was transgender, and also won on their refusal to provide her with gender affirming care claims, both unnecessary rigor and also under the Eighth Amendment and state complement. She was being housed — I think it was 10 months at the time that we had our case — who had a long, undeniable, multiple psychologists, she was on the death row when Oregon had a death row. And, of course, had these like extensive psychological workups with extensive findings of serious mental illness. And it was absolutely clear that the prison found it to be a benefit to simply manage her by ignoring her serious mental illness and holding her in segregation to control her as much as possible.

In that case, we also discovered that she was being secretly medicated for her specific serious mental illness, and they were telling her that it was the medication they were injecting her with was for another diagnosis, and not her serious mental illness, which is the only thing this medication could have been used for. And they were doing that to control her, while they were denying she had the mental illness. So it’s just the layers of diabolical, insane conduct. As you all know, this never ends. So that was the segregation case, where the conditions of segregation were found to be subject her to unnecessary rigor as well.

I’ve had a series of mental health cases where refusal to treat documented PTSD and schizoaffective disorder and refusal to evaluate conditions that are present in records and truly undeniable in terms of the symptomology, where the courts have found also it’s a violation of unnecessary rigor not to adequately evaluate, treat, and affirm or designate a diagnosis for a clear mental illness.

PTSD is a big one. That one there was a policy also involved, where the prison had a policy, and probably still does, of not treating — I’ve seen this in writing — not treating people with PTSD because it would trigger them. So that’s a policy the court found to be unnecessary rigor. There’s any variety of medical conditions I’ve had injunctive orders for treatment of chronic pain, for treatment of hematuria, for treatment of radiculopathy, which is very common for prisoners, and involves medications that the prison doesn’t want to give prisoners, and just diabetes. I’ve had orders for dental care, for treatment for TMJ, elbow injuries, knee injuries. It really has no limit.

Everybody should assume every state has habeas as a remedy. Even if people are not able to have court appointed counsel, one thing I’m doing with my habeas cases when I win, is, I’m bringing 1983 cases, state and federal, and raising the issue of plain preclusion and collateral estoppel to shut down the government from making any arguments. And I have a summary judgment pending to see how that will go.

We all need to live and to be able to buy groceries. And there are ways to do this work, even if you don’t have these mechanisms, like Oregon does, to get paid where you can. You can do incredibly groundbreaking law, even just through habeas and everything that that can encompass and move it into a venue where you can get damages later.

So we also have, I also had a series of cases where we’re challenging prison failure to follow PREA protections, the Prison Rape Elimination Act, which is primarily the clients for those cases are women. And it’s not just women, though. It’s actually a variety of people who are incarcerated who have not been afforded the mandatory mandates of PREA after they’ve been assaulted or harassed, and that’s a huge, wide open area as well.

It’s an incredibly dynamic area of law, and I’m going to see how far it can go. And I’ve been very fortunate to have a lot of support from tremendous people to work with in the medical community, investigators who are really supporting these cases in a fundamental way. And if anybody’s interested in having any of these court opinions I’ve mentioned, or templates, habeas form templates to look at for your state, and I am happy to send that to anybody. Anybody on the panel can tell you my email.

Megha Ram: Tara, I just have one quick follow up for you. So it sounds like you’ve gotten incredible injunctive relief through the unnecessary rigor clause. Have you also been able to secure release in those cases using unnecessary rigor?

Tara Herivel: Yes, thank you. That’s kind of important. So I had a client released who — after he won his case, and 18 months of contempt proceedings that averaged about once every two months — the court finally released him. They used habeas. The court said, “We have in our habeas statutes a release discharge provision that says, if the conditions are unconstitutional, discharge is a remedy.” And I have another client who may be released very soon. And the Court of Appeals recently affirmed that decision and allowed that. The court established for the first time in Oregon that release is a remedy in habeas and also for contempt. So that’s pretty fantastic.

Megha Ram: That’s incredible. So if you win cases under unnecessary rigor, and then you get some sort of injunctive relief, provide this medical care, move this person out of solitary, whatever it is, and the DOC isn’t complying, after a certain amount of noncompliance, you are just able to get people out.

Tara Herivel: That’s more and more accepted, especially now that we got this beautiful opinion from the Court of Appeals about it.

Megha Ram: I just have one last question for all of the panelists. Tara’s put this into practice in Oregon, has been doing incredible work, but there are real barriers to doing that sort of thing elsewhere, and also to doing it in Oregon. And so I’m wondering if you guys can talk a little bit about what those challenges, those barriers are to bringing conditions litigation under state constitutional provisions.

Kasia Szymborski Wolfkot: I’m just going to focus on one. When I was at MacArthur with Megha, we did a lot of work under the federal Constitution, and then we started trying to get involved in more of these cases under state constitutions. And we tried following our normal way of getting involved in cases, which on the Supreme Court and Appellate program there was track and intervene. When something goes up on appeal, intervene at that point. And it just wasn’t working as well with the state conditions cases, because there weren’t that many of them.

And so I started thinking about why that was, and I realized that most of the federal cases that we were getting involved in were brought under Section 1983. There just aren’t that many states that have section 1983 equivalents in which the legislature has authorized a cause of action for damages for violations of the state constitution.

So it’s somewhere between eight and 12, depending on who you ask. Institute for Justice puts it at eight. There’s a professor named Gary Gildin who puts it more around 11. I think it just depends on how you’re reading the various statutes that could be called a 1983 equivalent.

But when states do pass 1983 equivalents it makes a difference. New Mexico recently passed one, I think, in 2021. Just this year, the ACLU of New Mexico filed a case challenging the solitary confinement of somebody with mental illness under the state constitution. As far as I know, that’s the first case of its kind in the state. And it’s no coincidence that it came right after they passed this 1983 equivalent.

Likewise, a minority of state judiciaries, judges, have said that these clauses are self-executing. So people mostly can’t sue directly under the state constitution, like Bivens type actions..

I think as practitioners, we should be focusing on trying to get state judges to say that these clauses are self-executing. I think that given the trends that we’ve been seeing in sentencing, over a dozen at this point states have said that their Eighth Amendment cognate is more protective of excessive sentencing. I think those same states would be very open to saying, that’s also true in the conditions context. Maybe they’d be even more open than in the sentencing context, because, at the end of the day, I think, as Emily Hughes said, these are local issues. Mostly everybody who’s incarcerated is going to come back out and be in the community. They’re going to be grocery shopping with you, and their kids are going to go to your kids’ daycare, and you want them to be healthy. You want them to be ready to get out. And if they’re held in deplorable conditions, that’s just not going to happen. So it really is a human and community issue.

But they need the cases, and we need to figure out how to get the cases to them. We have to convince them that these cases can be brought. If the legislature isn’t going to act and authorize these causes of action, we have to get courts to say that they’re self-executing. They can also be brought under habeas. Tara already talked about that a bit. I think every state probably has habeas statutes. I don’t know if you can challenge conditions in every state under habeas statutes, but Tara, maybe you have some thought on that.

Tara Harivel: I don’t know. I haven’t done a comparative habeas study across the states, but I would assume that the basic posture of habeas is going to be favorable to prison conditions litigation. It’s what, unhand the body, because it’s an unacceptable and unlawful condition, setting, or sentencing has been incorrectly constructed by the prison. So I think that there’s a wealth there, and it’s about familiarity and having examples of people litigating these cases. But it can happen quickly. It’s happening very quickly in America.

Megha Ram: So Meredith and Kristen, do you have other challenges or barriers that you see in bringing this sort of litigation?

Kristen Bell: So I teach criminal law, and I think as a teacher at a law school, there’s too much focus on federal cases. And I think something that the academy can do is incorporate more state constitutional law into our curriculum, not just in constitutional law, but also in criminal law and in other areas.

Just as an example, I teach McCleskey when I teach the death penalty, and then I teach the Washington Supreme Court’s opinion that came to the opposite conclusion. And I started doing that because I thought state constitutional law was really important, which I continue to think, but also because I think it opens students up to seeing a different way of doing things, and they can more critically engage with the opinions when they see an opposite. And I think also, in terms of training the next generation of lawyers, a lot of law schools have U.S. Supreme Court clinics or federal appellate clinics. I think we should have state supreme court clinics and more, CLEs, like this one.

Meredith Esser: Jumping off of that, I think there’s an access to counsel problem that is not just an individual, incarcerated person needing a lawyer, but there’s also a lack of lawyers with the subject matter expertise to do this kind of litigation. In the federal system, there’s a very well developed doctrine for civil rights cases. There are a lot of lawyers who do this work, day in and day out. In the states, with some obvious exceptions, there are just very few networks of folks who are doing this litigation.

There are nuts and bolts problems. In the federal courts, there is often a mechanism to appoint lawyers on behalf of incarcerated people, to litigate their civil claims. In Colorado, there’s a panel of pro bono attorneys that volunteer to do this. And obviously that’s the infrastructure isn’t there to do similar things under state constitutions, but just kind of dovetailing from what Professor Bell said, there really isn’t a grounding in state constitutional law, beginning with law school, but then with its tentacles in the litigation community, communities like this one.

Where I am in Wyoming, I run a clinic. We don’t have a civil rights clinic at my law school. I run a criminal defense post-conviction clinic. I wish I could start taking these claims, but I’m the only person doing post-conviction work in Wyoming, with some exceptions. In some jurisdictions, there’s just a lack of attorneys who are willing to take these cases, and then a lack of precedent, a lack of doctrine that attorneys can draw on. I think that’s why we’re all here to support each other and think about creative ways to start doing this work and to start branching into state constitutions in the conditions context.

Megha Ram: Another barrier is the lack of attorneys fees. Under Section 1983, you can get paid. When you win, you can recover your fees. And if it’s not the case in the states, then there are fewer incentives for attorneys to take those cases. And Tara, you touched on this earlier, but I’d love if you could say a little bit about some of the creative ways you have gotten around that, to get paid for some of the conditions work that you’ve done, in a place where you don’t get formal attorneys fees.

Tara Harivel: Well, I get my pittance from the public defense office, and that’s fine, it’s okay, it’s what it is. But then I’ve gotten quite a bit of attorney fees for DOC’s contempt for court orders, which is 100% a problem in all case wins. I will spend a year, two years in litigation to get the orders in force. That becomes more of my practice than almost anything else. And judges are starting to award attorney fees. I’m convincing some judges to award me at my attorney fees based on my expertise and what I would be paid in private practice, and they’ve done it. So, you know that’s a way. But then also taking, like I mentioned earlier, if you have a habeas win, and they are very expensive because you need experts and you need investigators, so they become expensive, but if you win, then you can parlay it into a 1983 action for damages, and that’s a whole different ball game. So there are ways.

Megha Ram: Great. Thank you. So I think we have just about ten minutes for questions.

Tara Harivel: Thank you. Just a quick logistical question, is there a location where all the states that do currently have equivalents of Section 1983 are listed anywhere other than New Mexico?

Kasia Szymborski Wolfkot: The Institute for Justice has a report called “50 Shades of Immunity.” [Laughter.] I don’t know who thought that that was clever, but somebody did. They list each state that has a 1983 equivalent; they basically go state by state. You can click on the state and it says, does it have a 1983 equivalent? Has the court recognized an implied cause of action under the state constitution?

They’ve been updating it, supposedly every six months. I spoke with them maybe one month ago, and they said that they’re very due for an update. I’ve many times googled “50 Shades of Immunity,” so you could start doing that too.

Megha Ram: Do we have any other questions by folks in the audience?

Q: Thank you. My question will be for Tara, and the ground breaking work that you’ve done in Oregon. Have you seen any reprisals to any of the prisoners that didn’t get out, and what has that looked like in terms of bringing other cases forward?

Tara Harivel: Yes, I have. I appreciate your question. It takes so much bravery to bring these cases, because most of the time, almost all the time, they stay in prison. In fact, we just won a case two days ago where I’m concerned about the people involved, because it involved a staff member who was outing people convicted of sex offenses so that they would be beaten by gang members. The judge found that he did that, he was liable for my clients injuries, having been beaten horribly, and he also said the DOC was was also at fault for letting him do it without any kind of discipline, and he still has his job.

This is always a concern, and my clients are retaliated against, and they’re retaliated against during their cases, and then if they win, it can get horrible. It can look like taking clients off of medication with no titration and leaving them in unbearable pain. It can look like not allowing people to work. I have a client who is being retaliated against now, who won a case over a year ago. They’re not letting him work, and he’s destitute. It can come in all different ways, can come from being put on a unit where you know that the person is going to be assaulted. We stay in the picture for a long time after the win, because these are the issues that come up. And we use the courts for those claims of retaliation and shine the light as much as we can and try to support our clients by being very present for them, and also letting the prison know we’re there, we’re watching, we’re going to bring the conduct to the court. We’re not going to stop. But it’s a horrible truth that that does happen. Thank you.

Q: Thanks.

Megha Ram: And then I see a hand in the back, Professor Resnick.

Judith Resnik. Thank you. During Covid-19, there was a group of us that put together memos about extraordinary writs under state law as another access and times to the Supreme Courts of the states, apex courts, but my question intersects with this question about aggregate litigation and access to funding through public defenders offices or otherwise.

The dissent in Brown v. Plata is trying to argue that every person may, to the extent there are rights for people against grievous harm and injury and medical loss in prison, it would be an individual right that each individual would have to document per person. The questions about state court structural litigation would be based on whether there’s access to group based aggregation of some kind called class action, or not. There are some class action habeas litigation during Covid-19 and otherwise, and habeas equivalents. So the questions are about the structure of aggregation and its intersection with resources. And at least there’s some doctrine that, for some purposes, habeas is also an individual remedy about an individual getting out, not an aggregate remedy. So it’s for anyone on the panel who would like to respond.

Kristen Bell: I’ve got nothing on class action aggregation of that form, but the one thing I can think about is the lead case on the unnecessary rigor clause in Oregon. Is it an individual’s case? It’s challenging the policy of the prison, the prison’s rule that allows cross-gender for frisking of the intimate areas at a men’s prison. Tara, do you know, was that litigated? How was that brought to the court? Because it, unlike other cases, like in Utah, all of the cases are individual based.

Tara Harivel: So it was individual. And I’ve looked at whether our state habeas, at least, if there was any compliment or precedent for class actions with the kind of habeas I practiced primarily, and wasn’t able to find any, because it is such an individual remedy. Because we looked at Covid-19, from a state habeas perspective as to whether class action could work, and decided it wouldn’t work in that context with the law as it was. But we also looked at instead, like multi-tort actions for some of the same types of claims. But the habeas is truly, in our state, the case law is very individualized harm. So, I don’t know that it would work for more than one person to join if they didn’t have the exact same issues, because there’s usually a multitude of issues that are individualized.

Kasia Szymborski Wolfkot: A few years ago, the ACLU of North Carolina brought a class case challenging solitary confinement in that state under the state constitution, but they lost on class cert. The North Carolina Supreme Court didn’t certify, or, upheld the decision declining to certify the class. I don’t really remember the details of that cas besides that it came down to the class cert issue.

Megha Ram: I think we might have time for one final question if anyone has a last question to ask. If not, we can wrap and get us back on track timing wise.