Academic journal article Journal of Criminal Law and Criminology

Ziglar V. Abbasi and Its Effect on the Constitutional Rights of Federal Prisoners

Academic journal article Journal of Criminal Law and Criminology

Ziglar V. Abbasi and Its Effect on the Constitutional Rights of Federal Prisoners

Article excerpt


Money damage remedies in tort law serve two functions. First, they allow victims to be made whole through compensation. (1) Second, they hold tortfeasors liable to deter illegal behavior. (2) In most cases, the deterrent function most clearly expresses the goal of the law. For instance, a law providing money damages for battery more clearly expresses a policy of deterring battery rather than a policy of compensating for the resulting injury. Over time, doctrines such as punitive damages have reified this deterrence function to allow victims a direct remedy for money damages. (3 ) A similar deterrence function has animated the Supreme Court's reasoning in a line of cases dealing with constitutional torts, i.e. claims against federal actors arising directly under the Constitution. (4)

Starting in 1971 with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, (5) the Supreme Court began allowing claims for money damages to be brought directly against officers in order to deter government torts. (6) The Court would then extend the Bivens remedy to two other areas: gender discrimination by those not covered by Title VII, (7) and claims by prisoners for violations of their Eighth Amendment rights. (8 ) These Bivens claims have become a necessary mechanism for not only compensating persons whose constitutional rights were violated, but also for ensuring that those rights are not violated in the first place.

Despite their critical role ensuring constitutional rights are respected by federal officers, Bivens claims have often not fared well before the Supreme Court. Since 1980, the Supreme Court has never recognized a Bivens remedy for a new constitutional provision, (9) and has actually cut back on its availability in the areas where it exists. (10) However, in curtailing Bivens, the Court has been careful to ensure that other mechanisms, such as statutory remedies or state tort law, are able to fulfill its deterrent function. (11) By doing so, the Court is able to defer to Congressional action in creating causes of action without sacrificing constitutional rights. (12 ) Thus, even an overall narrower interpretation of Bivens has generally fulfilled its manifest purpose in areas where it is recognized, deterring officers through a direct damage remedy where other mechanisms do not effectively doing so.

Bivens deterrence is most important for claims brought by prisoners for violations of their Eighth Amendment rights. In an area where the Constitution protects the right to be fed, clothed, and kept safe, a set of remedies to ensure these rights will be respected is fundamentally necessary. (13) Bivens claims are a critical component of this set of remedies because alternative remedies have either been significantly curtailed, (14) or designed with the presumption that a Bivens remedy will be available. (15 ) These two reasons have made Bivens the keystone of the network of remedies that protect federal prisoner rights.

This keystone is likely dislodged with the Court's recent opinion in Ziglar v. Abbasi. (i6) In Ziglar, the Court significantly reworked its approach to Bivens in a way that casts significant doubt on the continued ability of federal prisoners to bring Bivens claims that differ factually from the original Eighth Amendment Bivens case, Carlson v. Green, which provides a Bivens claim for prisoners who are denied proper medical attention. (17)

Without a direct damage remedy against an offending officer to serve as a deterrent, a host of Eighth Amendment rights are significantly qualified. For instance, negative rights change from the right to be free from a particular form of harm to solely the right to be compensated for it. (18 ) Positive rights, even if they are able to be secured through an injunction, must be re-litigated every two years. (19) This erosion of Eighth Amendment rights denies more than one 100,000 federal prisoners rights equivalent to those secured to their state counterparts by 42 U. …

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