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Of Prison Hard Labor, Orin Kerr, and the Revolutionary Communist Party

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May American prisons require inmates to work, and below minimum wage at that? Yes, and even when the work assignments are made all the more uncomfortable when an inmate voluntarily declines to take medication for HIV. That is at least the point that comes across from Justice Sotomayor’s dissent from a denial of certiorari review in Pitre v. Cain, 562 U.S. ____ (Oct. 18, 2010), in which Justice Sotomayor urged that Pitre receive a substantive review of his complaint — rather than the dismissal he received at all trial and appellate court  levels — that his Louisiana prison violated his Eighth Amendment right against cruel and unusual punishment by requiring him to do hard labor in 100 degree sun as punishment for his refusing HIV medication, which refusal was in protest to his prison transfer.

Pitre raises many questions about the Constitutional and policy issues around requiring inmates to work, paying them below minimum wage, and enforcing the taking of medication running from anti-psychotic medication, medication against spreading infectious diseases, and, in Mr. Pitre’s case, medication that will not prevent him from spreading HIV, but might alleviate his pain and slow the effects of HIV, which might mean savings of government time and expense involved in caring for people with advance symptoms of HIV.

Among the people discussing Mr. Pitre‘s case online is Orin Kerr, a law professor at my law school, George Washington University, and a former law clerk to Justice Anthony Kennedy, so he certainly has experience dealing with certiorari petitions. Parked outside the George Washington Law School two weeks ago for an appointment, I stopped by Professor Kerr’s office to take a stab at meeting my fellow blogger for the first time, and spoke with him briefly after leaving a note under his door. The essence of Professor Kerr’s short blog posting on Pitre is this:

As far as I can tell, there was nothing special about this case that made it high-profile or would normally get a lot of attention. It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick “Splitless, factbound, I recommend DENY.” That alone makes this opinion quite interesting.

In my view, if Justice Sotomayor has accurately described the facts and law surrounding Mr. Pitre’s cert. petition, then federal-level and state-level legislation is needed at once to remove us from the days of forced hard labor for prisonsers, particularly considering that so many of them are locked up for acts that should not be criminal (e.g., marijuana felonies) and on sentences that are unjustly too lengthy. Moreover, if prosecutors are going to take the time to try to cage so many people (to the tune of around 2 million present inmates in the United States), it is essential that courts give full attention and consideration to inmate complaints of ill-treatment as serious as that stated by Mr. Pitre.

ADDENDUM – On a side note, after having been away from the Volokh Conspiracy for awhile, where Professor Kerr’s blogpost is found, I was at first surprised to find a paid ad for the Maoist Revolutionary Communist Party. Then I learned that such a BlogAd apparently is on the Volokh site as part of pure capitalism. Who is co-opting whom here?

Last year, Volokh Conspiracy namesake Eugene Volokh wrote: “There’s nothing at all ironic about us libertarians being picky about who gets to use our property. We’re not going to be that picky, since we want the money; but we of course reserve the right to bounce ads that sufficiently annoy us, whether esthetically (e.g., if they seem likely to be too garish on the page) or as to their content. What constitutes ‘sufficiently annoy’ will be decided case by case; there is no policy on the subject, and I don’t anticipate that there will be.”

Keep in mind that the RCP opposed the “power struggle” victory of Dian Xiaoping and his supporters who to this day have supported extensive free market activity in China, yet the RCP is advertising on a libertarian blog. Perhaps the RCP thinks some sympathetic people visit the Volokh Conspiracy, or perhaps the RCP wants to confuse readers whether the Volokh gang has become more sympathetic to communists by accepting such an ad. I have blogged before about my own interaction with some RCP followers.