Supremely Qualified - Justice Stephen G. Breyer

By Wayne, Danielle L.; Pollack, Daniel | Corrections Today, August 1995 | Go to article overview

Supremely Qualified - Justice Stephen G. Breyer


Wayne, Danielle L., Pollack, Daniel, Corrections Today


On Aug. 3, 1994, Stephen G. Breyer was confirmed as the 108th justice of the U.S. Supreme Court.

According to a published report in The Washington Post, Breyer envisions law in its most perfect sense as a balanced orchestra "that is more harmonious, that is better so that [people] can work productively together." This metaphor can be extended to include Breyer himself. Similar to an experienced conductor, he orchestrates his court decisions with what might be termed a flexible pragmatism.

Testifying at Breyer's confirmation hearing, former ACA President Helen Corrothers said, "His penchant for hard work and thorough preparation, along with his God-given wisdom, enable him to synthesize the various, seemingly dissimilar ideas sufficiently to be a leader in effecting compromise on numerous occasions."

Corrothers' ringing endorsement is heartening, but a year after his confirmation corrections professionals still may be wondering where Breyer stands on corrections issues.

As an original member of the U.S. Sentencing Committee in the mid-1980s, he was the key judicial architect of mandatory sentencing guidelines. Federal judges, however, are generally split on these guidelines. Some argue that the guidelines are too lenient; others claim they are too severe. Both sides agree they limit judicial power. Breyer counters that much of the criticism aimed at him is a consequence of congressional mandatory minimum sentences that sometimes negate the guidelines.

Beyond his work on guidelines, some of Justice Breyer's tendencies are evident in a review of previous corrections cases he has authored. Arruda v. Fair (710 F.2d 866 [1983]) concerned an inmate placed in a special maximum security unit at Massachusetts Correctional Institution, Walpole. Inmate Arruda questioned the prison's strip-search policy going to and from the unit en route to or from the law library and before receiving guests in the unit's visiting area. Arruda contended that these regulations violated his Fourth and Eighth Amendment rights.

Breyer ruled that the state's strip-search policy should be upheld. He maintained concern for the inmate's Fourth Amendment rights, indicating that strip-searches should be conducted in a manner and location that treats inmates humanely and safely. However, Breyer justified these searches as necessary because of the nature of a maximum security prison and the reoccurrence of inmates' belligerent behavior. Consequently, Breyer argued this policy was reasonable because it ensured safety and deterred contraband activities within the prison. He found no grounds for the claim that the searches were punitive.

In several other corrections cases, Breyer has come face-to-face with the issue of "qualified immunity." According to Black's Law Dictionary, qualified immunity is the "affirmative defense which shields public officials performing discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." His position becomes clear after examining these particular cases.

In Bonitz v. Fair (804 F.2d 164 [1986]), Breyer ruled on an interlocutory qualified immunity appeal. The case concerned nine female inmates residing in a medium security prison for women and men. The plaintiffs claimed that their Fourth Amendment rights were violated by 12 officers and officials of the Massachusetts Department of Correction, the Massachusetts State Police Department and the Office of the Middlesex County District Attorney. The alleged infringement occurred during a strip-search that was not conducted under the legal parameters of a search: Inmates were exposed to extremely unsanitary procedures, and male officers were present when female inmates were searched.

Although the defendants obtained a valid warrant, Breyer focused on other issues, specifically the role of the appellate court. …

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