Amicus Curiae Brief — Seling v. Young

No. 99-1185

—JUL 1 0.2000

In The

Supreme Court of the United States

S

MARK SELING, Superintendent,

Special Commitment Center,

Petitioner,

ANDRE BRIGHAM YOUNG,

Respondent.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

+

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

S

Epwarb M. CHIKOFSK’

Counsel of Record

301 East 87th Street

New York, NY 10128

(212) 289-1062

BARBARA E. BERGMAN

UNM School of Law

1117 Stanford, N.E.

Albuquerque, NM 87131

(505) 277-3304

Counsel for Amicus Curiae

BEST AVAILABLE COPY

l.

QUESTIONS PRESENTED

Whether a state civil commitment law directed at

sexual predators whose actual implementation has

been pervasively punitive throughout its nine year

history violates double jeopardy, ex post facto,

and due process protections where the statute’s

punitive “purpose or effect” is demonstrated by

the “clearest proof”.

Whether a federal court exercising habeas corpus

jurisdiction is precluded from _ considering

institutional conditions of confinement in

determining whether a commitment regime

labeled “civil” by the state legislature is instead

punitive in “purpose or effect” under the Due

Process, Ex Post Facto or Double Jeopardy

clauses of the Constitution.

(1)

TABLE OF CONTENTS

Interest Of Amicus Caria oe oc ose ccs soe cee vee ces soe cee v0e coves

TEN aT een

Habeas Corpus Is The Appropriate Remedy

To Attack The Punitive Conditions Of Con-

finement Of A Sexual Predator As Violations

Of The Double Jeopardy, Ex Post Facto and

Due Process Clauses Of The Constitution .............

Habeas Corpus Is A Concurrent Federal

Remedy By which To Address Punitive

Conditions Of Confinement ......................4.

Habeas Corpus Is An Equitable Remedy

With Broad Power To Adopt Such Pro-

cedures And Provide Such Relief “As

Law And Justice Require” .........ccsccscseeeseees

Habeas Corpus Is The Only Federal

Remedy That Affords Complete Relief,

Given Limitations Recently Imposed In

§1983 Prisoner Proceedings ..............ccscseeee

TEE ee ee eee eR

(111)

IV

TABLE OF AUTHORITIES

CASES

Albers v. Ralston, 665 F.2d 812 (8" Cir. 1981)

Allen v. Illinois, 478 U.S. 364 (1986)

Baxstrom v. Herold, 383 U.S. 107 (1966)

Bracy v. Gramley, 520 U.S. 899 (1997)

Brecht v. Abrahamson, 507 U.S. 619 (1993)

Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969)

Dixon v. Jacobs, 427 F.2d 589 (D.C. Cir. 1970)

Dugger v. Adams, 489 U.S. 401 (1989)

Engle v. Isaac, 456 U.S. 107 (1982)

Ex Parte McArdle, 73 U.S. 318 (1867)

Graham v. Broglin, 922 F.2d 379 (7" Cir. 1991)

Harris v. Nelson, 394 U.S. 286 (1969)

Heck v. Humphrey, 512 U.S. 477 (1994)

Hilton v. Braunskill, 481 U.S. 770 (1987)

Humphrey v. Cady, 405 U.S. 504 (1972)

11

10

13

11

Vv

In re Bonner, 151 U.S. 242 (1894) 7

In re Detention of Campbell, 986 P.2d 771 (Wash. 1999) 5

In re Detention of Turay, 986 P.2d 790 (Wash. 1999) 5

In re Young, 857 P.2d 989 (Wash. 1993) 5

Jackson v. Indiana, 406 U.S. 715 (1972) 8

Johnson v. Avery, 393 U.S. 483 (1968) 6

Kansas v. Hendricks, 521 U.S. 346 (1997) 2

Levine v. Torvik, 986 F.2d 1506 (6" Cir. 1993) 12

Lindh v. Murphy, 521 U.S. 320 (1997) 16

McCleskey v. Zant, 499 U.S. 467 (1991) 10

Miller v. French, 2000 WL 775572 (2000) 13

Phifer v. Warden, 53 F.3d 859 (7" Cir. 1995) 13

Powell v. Texas, 392 U.S. 514 (1968) 8

Preiser v. Rodriguez, 411 U.S. 475 (1973) 6

Schlup v. Delo, 513 U.S. 298 (1995) 10

Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969) 7

Turay v. Seling, No. C 91-664 (W.D.Wash. 2000) 3

Vitek v. Jones, 445 U.S. 480 (1980) 9

VI

Willis v. Ciccone, 506 F.2d 1011 (8" Cir. 1974)

Wilwording v. Swenson, 404 U.S. 249 (1971)

Withrow v. Williams, 507 U.S. 680 (1993) .

Young v. Weston, 192 F.3d 370 (9" Cir. 1999)

Miscellaneous

Note, The Nascent Right To Treatment,

53 Va. L. Rev. 1134 (1967)

10

13

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense

Lawyers is a District of Columbia non-profit corporation

with a membership of more than 10,000 attorneys

nationwide — along with 80 state and local affiliate

organizations numbering 28,000 members in all fifty states.

The American Bar Association recognizes NACDL as an

affiliate organization and awards it full representation in its

House of Delegates. NNACDL was founded in 1958 to

promote study and research in the field of criminal law and

procedure, to disseminate and advance knowledge in the area

of criminal justice and practice, and to encourage the

integrity, independence and expertise of defense lawyers in

criminal cases in the state and federal courts. Foremost

among NACDL’s objectives is to promote the proper

administration of justice. It has appeared before this Court

as amicus curiae on numerous occasions. See, e.g., Jones v.

United States, 526 U.S. 227 (1999); Richardson v. United

States, 526 U.S. 813 (1999).

STATEMENT OF THE CASE

This case involves the constitutionality of Washing-

ton State's Sexually Violent Predator statute as it applies to

Respondent Andre Young. Young has been indefinitely

' All parties have consented to the appearance of NACDL as amicus

curiae in this matter and letters of consent have been lodged with the

Clerk. No counsel for any party has authored this brief in whole or in

part, and no person or entity, other than amicus curiae, has made a

monetary contribution to the preparation or submission of this brief.

Sup. Ct. Rule 37.6.

confined under the statute since the expiration of his criminal

sentence in 1990. While the present case was pending in the

lower courts, this Court decided Kansas v. Hendricks, 521

U.S. 346 (1997). By a 5-4 vote, the Hendricks majority

rejected a facial challenge to a Kansas statute modeled on

Washington’s, finding that the involuntary commitment of

sexually violent predators, even where postponed until the

expiration of their criminal sentences, did not violate the

substantive due process, ex post facto or doubie jeopardy

clauses of the Constitution.

Notably, the Hendricks Court determined that by

committing sex offenders “to an institution expressly

designed to provide psychiatric care and treatment,” the state

“has doubtless satisfied its obligation to provide available

treatment” (521 U.S. at 368 n.4) — a determination with

which the dissenters took specific issue. /d. at 381-86, 390

(Breyer, J., joined by Stevens, Souter & Ginsburg, JJ.,

dissenting).

Notwithstanding Hendricks’ rejection of facial

challenges to sexual predator statutes, the Court of Appeals

in this case held that the detailed factual allegations

presented by Respondent, particularizing the specifics of his

and other inmates’ punitive, nontherapeutic confinement,

nevertheless presented a colorable constitutional challenge to

the Washington statute as it applied to him. Young v.

Weston, 192 F.3d 870, 875 (9" Cir. 1999). In doing so, the

Court of Appeals properly took note of this Court’s earlier

admonition in the analogous case of Allen v. Illinois, 478

U.S. 364, 373 (1986)(“Had petitioner shown, for example,

that the confinement ... imposes ... a regimen which is

essentially identical to that imposed upon felons with no

need for psychiatric care, this might well be a different

case”).

In point of fact, the punitive, nontherapeutic

conditions of confinement at the Special Commitment Center

a

(SCC), located on the grounds of the state prison at McNeil

Island, has been the subject of extensive federal civil rights

litigation since 1991. See Turay v. Seling, No. C 91-664 WD

(W.D.Wash. filed May 5, 2000)(Findings of Fact,

Conclusions of Law, And Order Granting Sanctions In

Part)(lodged with the Clerk of this Court); see also id..

(W.D.Wash. filed November 15, 1999)(Findings of Fact,

Conclusions of Law and Contempt Order)(annexed to Cert.

Opp. App. B in this Court).

In its most recent set of rulings, dated May 5, 2000,

the federal district court (William L. Dwyer, J.) found as

follows (id. at 5):

The central issue in the present [consolidated] cases

is whether the defendants are providing

constitutionally adequate mental health treatment to

the plaintiff SCC residents as required by due process

and the Supreme Court decisions cited above. The

finding that SCC has failed to provide such treatment

in the past has been made not just by the jury and the

district judge in the present cases, but also by the

State of Washington’s Inspection of Care (IOC)

Report issued in October 1999, by the Superior Court

for the State of Washington for King County, by the

special master herein, by other experts including one

called by defendants at an earlier hearing, and even

by the SCC’s recently-departed clinical director and

current superintendent.

Under the totality of circumstances, then, and given

the record developed in the 7uray litigation, it may hardly

be said that the Court of Appeals’ remand for an eviden-

tiary hearing in this case lacked a substantial basis in fact.

SUMMARY OF ARGUMENT

Habeas corpus is the appropriate remedy by which to

attack punitive conditions of post-imprisonment confinement

of a sexual predator where the constitutional bases of attack

are the due process, double jeopardy and ex post facto

clauses of the Constitution and the relief sought is release

from custody. This Court has recognized that habeas corpus

is a concurrent federal remedy by which a state prisoner

may contest the conditions of his confinement and seek his

release.

Habeas corpus is also an equitable remedy with broad

power to adopt such procedures, including discovery and

evidentiary hearings, and provide such relief, including

release from custody, “as law and justice require”.

Habeas corpus is the federal remedy that provides the

broadest flexibility in administration and in the fashioning of

relief, given recently-enacted Congressionally-imposed

limitations placed on the federal courts in the conduct of

§1983 state prison conditions litigation under the Prison

Litigation Reform Act of 1995. The PLRA leaves habeas

corpus litigation virtually untouched nor are the limitations

introduced by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) relevant here.

enone

ee ee ee

a ee

——-

ARGUMENT

HABEAS CORPUS IS THE APPROPRIATE

REMEDY TO ATTACK THE PUNITIVE

CONDITIONS OF CONFINEMENT OF A

SEXUAL PREDATOR AS VIOLATIVE OF

THE DOUBLE JEOPARDY, EX POST FACTO

AND DUE PROCESS CLAUSES OF THE

CONSTITUTION

Andre Young was committed directly upon the

completion of his penal sentence in 1990 to Washington’s

Special Commitment Center, a facility run by the State’s

Department of Social Services and located in one of the

State’s maximum security prisons, after having been found a

“sexually violent predator” under the applicable Washington

statute. RCW ch. 71.09.

The Washington state courts refused Respondent’s

repeated proffers of evidence demonstrating the punitive,

nontherapeutic conditions at SCC, finding only that the

commitment procedures passed constitutional muster even

after he had already fully served his criminal sentence. Jn re

Young, 122 Wash.2d 1, 857 P.2d 989 (1993). (Only

recently, the Washington Supreme Court has twice reiterated

its disinclination to entertain claims concerning punitive

confinement at SCC. See Jn re Detention of Campbell, 139

Wash.2d 341, 347-50, 986 P.2d 771, 774-76 (1999); In re

Detention of Turay, 139 Wash.2d 379, 415-22, 986 P.2d 790,

809-13 (1999); although compare Campbell, id. at 362-72,

781-86 (Sanders, J., dissenting); Zuray, id. at 436-40, 820-22

(Sar.ders, J., dissenting)).

Nevertheless, the Court of Appeals for the Ninth

Circuit ruled that Respondent was entitled to an evidentiary

hearing to sustain his detailed claims that the Washington

commitment scheme and its actual implementation at SCC

was punitive in its effect. Should he sustain his burden by

“the clearest proof’, the court ruled that his commitment

should be set aside as violations of the double jeopardy and

ex post facto clauses of the Constitution. Young v. Weston,

192 F.3d 870, 873-76 (9" Cir. 1999). Significantly, the court

of appeals so ruled in the exercise of its habeas corpus

jurisdiction.

Habeas Corpus Is A Concurrent Federal Remedy

By Which To Address Punitive Conditions Of

Confinement

In clarifying the relation between an action for

habeas corpus (28 U.S.C. §2254) and a civil rights action (42

U.S.C. §1983) as vehicles for state prisoners to challenge

their confinement on constitutional grounds, this Court has

set forth certain bright line rules. In Preiser v. Rodriguez,

411 U.S. 475 (1973), the Court held that prisoners

challenging the fact or duration of their physical

confinement, seeking immediate or speedier release from

imprisonment, must pursue habeas corpus as their principal

federal remedy. Where grievances relate to the conditions of

confinement, as opposed to release, the federal remedy

ordinarily is a civil rights action. /d.. at 499-500 & nn.14 &

15. See also Graham v. Broglin, 922 F.2d 379, 381 er Cir.

1991)(Posner, C.J.).

Nevertheless, this Court has noted that habeas corpus

is a “concurrent federal remed[y] in prison condition cases”

along with §1983. Preiser, 411 U.S. at 499-500 (citing

Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Johnson

v. Avery, 393 U.S. 483 (1969)). See also Humphrey v. Cady,

405 U.S. 504, 514 (1972)(petitioner entitled to challenge via

habeas corpus his “substantial constitutional claims”

concerning the place and character of his confinement in a

prison unit labeled “Sex Deviate Facility”); Albers v.

Ralston, 665 F.2d 812, 815-16 (gs Cir. 1981)(prisoners may

challenge conditions of confinement via habeas corpus);

Willis v. Ciccone, 506 F.2d 1011, 1014-19 (8 Cir. 1974).

Among the lower courts, it is well settled that habeas

corpus challenges the place as well as the fact of

confinement, even if the challenged place is a particular

hospital ward. See, e.g., Covington v. Harris, 419 F.2d 617,

620-21 (D.C. Cir. 1969)(citing Jn re Bonner, 151 U.S. 242

(1894)); Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969);

Dixon v. Jacobs, 427 F.2d 589, 597-98 & n.26 (D.C. Cir.

1970). See also Stultz v. Cameron, 383 F.2d 519, 520-21

(D.C. Cir. 1967); Lake v. Cameron, 364 F.2d 657 (D.C.

1966); Miller v. Overholser, 206 F.2d 415, 419 (D.C. Cir.

1953).

In Covington v. Harris, the D.C. Circuit deemed

habeas corpus the appropriate remedy where petitioner

alleged that his confinement in the maximum security wing

of a psychiatric facility violated his liberty interest under the

due process clause (419 F.2d at 623-24):

It makes little sense to guard zealously against the

possibility of unwarranted deprivations prior to

hospitalization, only to abandon the watch once the

patient disappears behind hospital doors. The range

of possible dispositions of a mentally ill person

within a hospital, from maximum security to

Outpatient status, is almost as wide as that of

dispositions without. The commitment statute no

more authorizes unnecessary restrictions within the

former range than it does within the latter. * * *

[A]dditional restrictions beyond those necessarily

entailed by hospitalization are as much in need of

justification as any other deprivations of liberty; nor

does it preclude all judicial review of internal

decisions.

? The Covington court took note of the punitive nature of petitioner's

maximum security confinement (id. at 622-23):

Nor does the mere denomination of the confinement

as “civil” or “regulatory” change its essentially punitive

character. As this Court noted in Powell v. Texas, 392 U.S.

514, 529 (1968):

One virtue of the criminal process is, at least, that the

duration of penal incarceration has some outside

statutory limit; * * * “Therapeutic civil

commitment” lacks this feature; one is typically

committed until one is “cured”. Thus, [those

committed] might [be] subject[ed] to the risk that

they may be locked up fcr an indefinite period of

time under the same conditions as before, with no

more hope than before of receiving effective

treatment and no prospect of periodic “freedom”.

Thus, in terms which appear prescient with regard to the

case at bar, the Powell Court concluded, “we run the grave

risk that nothing will be accomplished beyond the hanging of

a new sign -- reading “hospital” -- over one wing of the

jailhouse” (id. at 529).

This Court has repeatedly recognized that the special

confinement of those involved in the criminal process

deemed mentally ill raise unique constitutional issues

warranting heightened scrutiny given the special liberty

interests involved. See, e.g., Jackson v. Indiana, 406 U.S.

715, 738 (1972)(“Due process requires that the nature and

duration of the commitment bear some reasonable relation to

the purpose for which the individual is committed”). This

[The] John Howard [Pavilion] houses principally the so-called

“criminally insane”. Such facilities have, in the past, notoriously rivalled

maximum security prisons in the pervasiveness of their restraint upon

liberty and the totality of their impositions upon dignity. * * *

[C]onfinement in John Howard is not normally contemplated for civilly

committed patients and entails extraordinary deprivations of liberty and

dignity which make it, in effect, more penitentiary than mental hospital,

even if it also provides some treatment.

~——- -—— —— oe

a

heightened concern was underscored in Vitek v. Jones, 445

U.S. 480 (1980), where the Court rejected the state’s

argument that transfer from prison to mental hospital was a

purely administrative matter (id. at 493):

None of our decisions holds that conviction for a

crime entitles a State not only to confine the

convicted person but also to determine that he has a

mental illness and to subject him involuntarily to

institutional care in a mental hospital. Such

consequences visited on the prisoner are qualitatively

different from the punishment characteristically

suffered by a person convicted of crime. Our cases

recognize as much and reflect an understanding that

involuntary commitment to a mental hospital is not

within the range of conditions of confinement to

which a prison sentence subjects an individual

(collecting cases).

Here, of course, Respondent is subject to continued

confinement in a purported psychiatric facility beyond the

expiration of his criminal sentence. Compare Baxstrom v.

Herold, 383 U.S. 107, 113 (1966). And the linchpin of his

claim is that the Washington commitment statute, and its

actual implementation at SCC, as applied to him, is punitive

and thereby subject to the due process, ex post facto and

double jeopardy clauses of the Constitution. Young, 192

F.3d at 873. The relief he seeks is release from confinement.

Habeas corpus, accordingly, is the appropriate vehicle by

which to secure the remedy sought.

10

Habeas Corpus Is An Equitable Remedy With

Broad Power To Adopt Such Procedures And

Provide Such Relief “As Law And Justice

Require”

Both statutes and decisions of this Court have

deemed habeas corpus to be “governed by equitable

principles” authorizing the federal courts to “dispose of

[habeas petitions] ... as law and justice require”. 28 U.S.C.

§2243. See also Schlup v. Delo, 513 U.S. 298, 319

(1995)(“Court has adhered to the principle that habeas

corpus is, at its core, an equitable remedy”); Withrow v.

Williams, 507 U.S. 680, 686-87 (1993), see also id. at 699-

700 (O’Conner, J., concurring in part and dissenting in

part)(“[c]oncerns for equity ... resonate throughout our

habeas jurisprudence”); McCleskey v. Zant, 499 U.S. 467,

502 (1991); Dugger v. Adams, 489 U.S. 401, 410 (1989).

Indeed, this Court has described habeas corpus as

governed less by “statutory developments” than by “a

complex and evolving body of equitable principles informed

and controlled by historical usage ... and judicial decisions”.

McCleskey, 499 U.S. at 489; see also Schlup, 513 U.S. at

319 n.35 (“This Court has repeatedly noted the interplay

between statutory language and judicially managed equitable

considerations in the development of habeas corpus

jurisprudence (collecting quotations and citations)”); Brecht

v. Abrahamson, 507 U.S. 619, 631-33 (1993)(Court has,

where necessary, “filled the gaps of the habeas corpus

statute”).

To that end, “(t]he very nature of the writ demands

that it be administered with the initiative and flexibility

essential to ensure that miscarriages of justice within its

reach are surfaced and corrected” (Harris v. Nelson, 394

U.S. 286, 291 (1969)), and that preclusive doctrines and

formalities “yield to the imperative of correcting ...

fundamentally unjust incarceration”. Engle v. Isaac, 456

11

U.S. 107, 135 (1982). See also Harris, 394 U.S. at 291

(habeas corpus review affords federal courts the “ability to

cut through barriers of form and procedural rules”).

Even when procedures are contemplated that are

novel or out of the ordinary (e.g., discovery), the federal

courts, by statutory authorization and rules, have the power

to “dispose of the matter as law and justice require”. 28

U.S.C. §2243. See also Hilton v. Braunskill, 481 U.S. 770,

775 (1987)(“Even in 1894 ... the Court interpreted the

predecessor of §2243 as vesting federal courts ‘with the

largest power to control and direct the form of judgment to

be entered in cases brought before it on habeas corpus’”

[citing Jn Re Bonner, 151 U.S. 242, 261-62 (1894)]).°

Only recently, this Court had occasion to underscore

that both the procedures by which habeas petitions were to

be litigated, as well as the relief ultimately fashioned, must

be of sufficient flexibility that the relevant facts are

adequately developed in adjudicating the merits of the claim.

In Bracy v. Gramley, 520 U.S. 899 (1997), the Court

unanimously remanded for a full evidentiary hearing where

it was confronted with colorably meritorious claims of

judicial corruption in connection with a state murder

conviction (id. at 908-09):

We conclude that petitioner has shown “good cause”

for discovery under [Habeas] Rule 6(a). In Harris [v.

Nelson, supra], we stated that “[w]here specific

allegations before the court show reason to believe

* The “law and justice” language dates back to the 1867 Habeas Corpus

Act, Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385-86, which was

understood to confer judicial authority “of the most comprehensive

character ... [that is] impossible to widen ...". Ex Parte McArdle, 73

U.S. 318, 325-26 (1867).

Parenthetically, it should be noted that §2243 and its “law and

justice” language remain unamended by the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

12

that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is ...

entitled to relief, it is the duty of the courts to

provide the necessary facilities and procedures for an

adequate inquiry” 394 U.S. at 300. ... Habeas

Corpus Rule 6 is meant to be “consistent” with

Harris.

Clearly, this case provides a paradigmatic example of

the need for flexibility in the adjudication of Respondent’s

colorably meritorious claims. He has been incarcerated in

SCC for nine years under conditions which a federal judge

and jury, as well as a special master, have already (and

repeatedly) found to be grossly inadequate to provide the

necessary therapeutic treatment for which he was ostensibly

“civilly” committed. The federal §1983 Turay litigation has

been ongoing since 1991, and the federal district judge has

been compelled to enter repeated contempt orders and

sanctions on a multiplicity of occasions. The Washington

Supreme Court has refused repeatedly to order the State to

ameliorate the treatment conditions at SCC as recently as

1999, leaving Respondent and other SCC residents to their

remedies in federal court. See Campbell, 986 P.2d at 775-

76; Turay, 986 P.2d at 802-04, 809-13.

Given the lengthy development of the factual record

that has already taken place in the federal Turay litigation,

the Court of Appeals’ remand for an evidentiary hearing in

this case (192 F.3d at 873-76) will hardly impose an

unmanageable burden either on the State or Respondent.

More to the point, and as discussed infra, the federal judge

exercising habeas jurisdiction over this case may have far

broader remedial and equitable powers at his disposal than

does the judge hearing the §1983 action. Quite simply, the

habeas judge possesses the remedial authority to impose a

variety of equitable remedies, including Respondent’s

release from custody. See, e.g., Levine v. Torvik, 986 F.2d

1506, 1520 (6" Cir. 1993)(civilly committed mental patient

- —_—

13

ordered released subject to conditions imposed by federal

court with respect to outpatient therapy); Phifer v. Warden,

53 F.3d 859, 864-65 (7" Cir. 1995)(“Conditional orders are

essentially accomodations to the state. They represent a

district court’s holding that constitutional infirmity justifies

petitioner’s release. The conditional nature of the order

provides the state with a window of time within which it

might cure the constitutional error. Failure to cure that error,

however, justifies the district court’s release of the

petitioner.”).*

Habeas Corpus Is The Only Federal Remedy That

Affords Complete Relief, Given Limitations

Recently Imposed In §1983 Prisoner Proceedings

The State argues that habeas corpus is an

inappropriate remedy in this context, suggesting that

Respondent be limited to a civil rights action under 42

U.S.C. §1983. Pet. Br. 31-33; Amici States Br. 13-16. This

is disingenuous in the extreme, particularly in light of

Congressional and judicial actions which only recently have

placed substantial restrictions on the remedial powers of the

federal courts with regard to state prisoner litigation. See,

e.g., the Prison Litigation Reform Act of 1995 (PLRA), Pub.

L. No. 104-134, 110 Stat. 1321-66 to 1321-77 (1995). See

also Miller v. French, 2000 WL 775572 (U.S. June 19,

2000); Heck v. Humphrey, 512 U.S. 477 (1994).

On their face, the federal habeas corpus and civil

rights statutes authorize overlapping procedural vehicles by

which prisoners may interpose constitutional challenges to

state action resulting in conviction, commitment, sentence or

other official confinement. However, in Heck v. Humphrey,

* See also Note, The Nascent Right To Treatment, 53 Va. L. Rev. 1134,

1157-59 (1967)(habeas corpus appropriate remedy to address failure to

provide adequate psychiatric care, citing, inter alia, Rouse v. Cameron,

373 F.2d 451 (D.C. Cir. 1966) and Lake v. Cameron, 364 F.2d 657 (D.C.

Cir. 1966)).

14

the Court narrowed §1983 actions by making habeas corpus

the “exclusive federal remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks

immediate or speedier release, even though such a claim may

come within the literal terms of 1983”. 512 U.S. at 481.

Heck has thus substantially expanded the range of

claims that, although potentially covered by both remedies,

are understood by the Court to be cognizable only in habeas

corpus. Under Heck, then, habeas corpus becomes the

exclusive remedy for all prisoner claims — including claims

seeking damages and injunctive relief -- that “call into

question the lawfulness of conviction or sentence.” /d. at

482-83. In effect, Heck extends the Preiser rule by making

those prisoner claims otherwise subject to overlapping

jurisdiction now cognizable only in habeas corpus.

Here, Respondent seeks release from custody

because of the punitive nature of his confinement in a state

psychiatric facility located on the grounds of a state prison.

This continued punitive confinement after the expiration of

his criminal sentence raises serious double jeopardy and ex

post facto concerns, particularly in light of the State’s

intransigence, after nine years of civil litigation, to provide a

properly “therapeutic” milieu for the residents involuntarily

incarcerated there. Cf Baxstrom v. Herold, 383 U.S. 107

(1966). Release from further confinement clearly is at the

core of the relief he seeks, even where the challenge is

framed as an attack on the punitive conditions of his

confinement. Covington v. Harris, 419 F.2d at 622 & n.11.

Moreover, accepting the State’s invitation to

eliminate habeas corpus as a viable federal remedy in this

case would run the serious risk of divesting the federal courts

of substantial equitable authority in the conduct of state

prisoner litigation and the fashioning of appropriate relief.

Only last Term, in Miller v. French, supra, this Court

upheld Congressionally-imposed limitations prohibiting the

15

federal courts from exercising their equitable authority to

suspend operation of the automatic stay provisions of the

PLRA. The PLRA sets forth standards for the entry and

termination of prospective relief in civil actions challenging

conditions at state prison facilities. Among the Act’s

provisions are those providing for the “immediate

termination” of prospective relief that in the opinion of either

party is not “narrowly drawn and the least intrusive means to

correct the violation.” 18 U.S.C. §3626(b). Indeed, in April

1998, all pre-PLRA prison decrees became subject to

periodic motions for termination. See Brief for the United

States at 3, Miller v. French, 2000 WL 775572 (U.S. 2000)

(Nos. 99-224 and 99-582).

More to the point, under the PLRA’s provisions, the

mere filing of a stay application by a State defendant triggers

an automatic stay provision that federal district judges are

powerless either to extend or enjoin. As noted by Justice

O’Connor, writing for the majority, “curbing the equitable

discretion of district courts was one of PLRA’s principal

objectives”. Miller, supra, at *8 & *14.

The long range impact of the PLRA on federal

litigation of state prison conditions cases, of course,

remains to be seen. Two preliminary observations, however,

are properly in order. First, the PLRA provides State

defendants with a ready-made procedural vehicle by which

to further limit and delay the expeditious imposition of

federal remedies at state prison institutions. (In this case, for

example, the Turay federal litigation, the State’s continued

recalcitrance, as manifested by repeated contempt citations

and the imposition of sanctions -- and Respondent's

“therapeutic” incarceration -- all have been going on

unabated since 1991.)

Second, and more important, the PLRA will have no

appreciable impact on the federal courts’ exercise of their

habeas jurisdiction or their equitable authority thereunder.

16

Indeed, the analogous mandatory time limitations imposed

on federal habeas courts by AEDPA (28 U.S.C. §2266(b) &

(c)) have no application in noncapital habeas cases such as

the proceedings at bar. See Lindh v. Murphy, 521 U.S. 320,

326-30 (1997)(comparing time-limitation provisions of Ch.

154 (capital habeas cases) with the absence of such

limitations in Ch. 153 (noncapital habeas cases)).

Accordingly, federal habeas corpus has emerged

from both the PLRA and AEDPA with its equitable

discretion relatively intact. The statutory (and equitable)

limitations that Congress has now imposed on the federal

district courts in state prisoner §1983 litigation will not

impair habeas courts’ ability to properly fashion swift and

efficacious remedies where warranted -- “as law and justice

require”. 28 U.S.C. §2243.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

EDWARD M. CHIKOFS¥ Y

_.. Counsel of Record

301 East °7 Street

New York NY 10128

(212) 289-1062

BARBARA E. BERGMAN

UNM School of Law

1117 Stanford, N.E.

Albuquerque NM 87131

(505) 277-3304

Counsel for Amicus Curiae

July 2000