Some prisoners in some states are complaining about their uncomfortable accommodations in prisons during the summer. They allege they are too hot. They have filed suit claiming the failure to air condition their cells violates the Eighth Amendment prohibition against cruel and unusual punishment.
I must remind you that Amendment applies only to action by state officials. The average person has no Eighth Amendment right to have air-conditioned homes if deprived of it by other than the state. I, for instance, have a wife that hates air conditioning. I am unable to drag her into federal court to gain some relief during this heat wave.
While reading about the hot prisoners I wondered what happened to Michelle Kosilek, formerly known as Robert Kosilek. She is doing life in prison for murdering her wife. Judge Wolf found that her rights under the Eighth Amendment were violated because the Massachusetts Department of Corrections refused to make available and pay for her sex transfer surgery. I wrote about it a long time ago saying Judge Wolf’s decision would not stand.
Massachusetts appealed Wolf’s decision. The Boston federal appeals court upheld Judge Wolf in a 2 to 1 decision. Two judges (Thompson and Kayetta) needed 90 pages to explain why Judge Wolf did not err; the 1 dissenting judge, Torruella, needed less than 30 to explain why he thought the other two were wrong.
Judge Toruella wisely started with “Lest we lose sight of the rule that we are called upon to enforce, stretching it beyond the bounds of its intended purpose, it is perhaps appropriate to begin by reciting the text of the Eighth Amendment:” He set it out and said Judge wolf’s decision based on erroneous assumptions went beyond the limits of Eighth Amendment jurisprudence.
Judge Torruella concluded by writing: “The Eighth Amendment proscribes punishment, including punishment in the form of medical care so unconscionable as to fall below society’s minimum standards of decency. . . . Its boundary simply does not reach, however, to instances of care that, although not ideal, illustrate neither an intent to harm nor the obstinate and unwarranted application of clearly imprudent care.”
The Commonwealth unhappy with having lost the case asked for an en banc review of it before the five justices of the appeals court. There the two judges found themselves in the minority when the three other judges reversed Judge Wolf’s findings. They held that refusal to give Kosilek her sexual reassignment surgery was not a violation of the Eighth Amendment.
The majority noted that, “The Eighth Amendment is meant to prohibit “unnecessary and wanton infliction of pain,” which is “repugnant to the conscience of mankind.” To prove a violation of the Eighth Amendment “a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.”
Analyzing the testimony before Judge Wolf the majority found in its 70 page opinion that Kosilek was receiving adequate medical treatment for her GID. It noted that there may be times when sexual reassignment surgery may be necessary for a prisoner but Kosilek had not shown that it was in her situation.
In a footnote the court explained: “The term “gender identity disorder” has recently been replaced with the term “gender dysphoria” in the medical community.” Dysphoria is defined as: “a state of feeling unwell or unhappy.”
The two judges (Thompson and Kayetta) whose decision was overturned (and I assume Judge Wolf can be put here also) suffered from extreme judicial dysphoria.
Judge Thompson astonishingly likened the decision to the separate but equal decision affecting ten million African-Americans, Plessy v. Ferguson, and the decision upholding the massive incarceration of Japanese during WWII, Korematsu v. United States. She in effect calls the majority bigots saying their decision: “aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.”
Wow! How can she possibly stand to be in the same room with those other judges, She seems to suggest no matter what the facts are the marginalized communities should prevail.
Judge Kayatta, likewise unhappy, responded by suggesting “no prison may be required to provide SRS to a prisoner who suffers from gender dysphoria” if certain experts are called. He continues: “Acknowledging that the majority may well be correct on the facts, I nevertheless decline the invitation to join the majority in embracing the authority to decide the facts.”
He would have a decision upheld even when the facts do not support the judge’s conclusions. He would prefer not to engage in a search for the truth. He continued: “I suspect that our court will devote some effort in the coming years to distinguishing this case, and eventually reducing it to a one-off reserved only for transgender prisoners.” He too alleged his colleagues are bigots having decided the case in the way it did because it involved transgender people.
Standing back one can only fear the future of American jurisprudence with these two judges both, Thompson (2010) and Kayatta (2013), recent appointments of President Obama. They are not interested in following the law but prefer to go outside it for the “marginalized community” and the “transgender prisoners.”
Imagine how it will be once Hillary gets her storm troopers on the bench. Thanks will go to all those beguiled by the bluster of Trump. America is on the cusp of drastic and dire change. Thompson and Kayatta show us the future.