The Primacy of Bureaucracy

While we, who wait quietly to be called for our few moments in the well, attribute vast power to the guy in the robe on the big bench of a federal courtroom, federal judges may not see their authority quite the same.  This point was driven home in spades by a post by Judge Richard Kopf at Hercules and the Umpire.

About to have (a presumptively lengthy) sentence imposed, the defendant disrupted the routine with an apology for not being at his best.

When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous..

He said he had not been given his medications at Douglas County Corrections. The US Marshals had delivered the fellow’s medication to Douglas County when they transported the guy from the Diagnostic and Evaluation Center (D&E) at the state prison the day before. The fellow apparently had herniated discs that required surgery, and he was evidently anxious and depressed.

The fellow kept apologizing to me about being sick. He wanted to be sentenced. He wanted to get to a Federal Medical Center for a thorough work-up. He had no apparent motive to delay sentencing.

The emotional toll endured by a defendant, about to find out just how horrible the rest of his life is going to turn out, at sentence is devastating. This isn’t to suggest they didn’t do anything to earn a stay at Club Fed, but not knowing whether it’s only the next few years or the next few decades is brutal.

Some prefer to hide from it, and want to put off the inevitable as long as possible. Others have steeled themselves for the news, and want it done and over.  Most can’t bear the pressure of not knowing whether they have a future, and even though the outcome will range from awful to horrible, they need closure. They need it to end.

When I asked the US Marshals what had happened, they advised that Douglas County Corrections (where we “store” prisoners in Omaha) won’t administer medications prescribed at other correctional institutions like D&E (where we also “store” prisoners) until Douglas County Corrections is independently satisfied that the prisoner needs the medications. Until then, the prisoner does not get the medication. In this case, there was no weaning him off the medications–Douglas County Corrections simply refused to give him the stuff at all. I suppose they would have gotten around to the medication issue at some point.

For anyone who reads the above-quoted paragraph and thinks that’s ridiculous, you haven’t spent enough time around official people. At every level of a bureaucracy, policies are crafted that make perfect sense if one presumes that particular bureaucracy exists independent of all others and at the center of its universe. It’s only ridiculous from the outside, where a longer view of the picture makes it irrefutably clear that the policy is absurd in context.

To the outsider, one would think that correctional facilities would both show a little respect for the determinations by other correctional facilities, plus recognize the harm caused to someone by the immediate cessation of pain meds. To the insider, however, the need to independently assess the need for serious meds is paramount.

After all, each facility is responsible for itself, and rubber stamping a determination by another facility could spawn mischief. No correctional facility wants to take a chance at being open to attack for a mistake. And if that policy causes some “discomfort” to a suffering inmate, well, then he should have thought about that before committing a crime.  It’s  a facile explanation, covering all manner of bureaucracy.

I suggested that this seemed silly since the Nebraska Department of Corrections, the entity that operates D&E, is far more sophisticated than a county jail and Douglas County Corrections could probably trust the State of Nebraska that the drugs were necessary. The US Marshals, who are, in my experience, both humane and professional, replied that it was not their policy that had deprived this man of his medications. Indeed, they had done absolutely everything they could to see that he got his prescribed drugs including hand delivering them to Douglas County Corrections.

It seemed silly indeed, but not nearly as silly as an Article III judge, with a defendant sick and in pain before him because of the bureaucratic policies that preclude anyone along the spectrum of being responsible for causing deliberate harm to a human being in their care, doing nothing more than “suggesting” it seemed silly.

No, it was not silly. It was abusive.  The denial of medication was an intentional harm done a prisoner in the facility’s care, and it played out in a federal courtroom before someone with the power to put a person in prison for the rest of his life.  And the best that could be done was to “tsk” at its silliness.

I don’t like sentencing people to prison when they are sick. That is particularly so when their sickness results from the casual cruelty of correctional bureaucrats.

This isn’t to point out a failing of a particular judge. In fairness, this scenario has played out to some greater or lesser extent in every federal sentencing I’ve had the misfortune to attend.  I have never understood the relationship between Article III judges and the Bureau of Prisons, the latter being inexplicably untouchable to the former.  When it comes to prisoners, judges might suggest, but they never order. No matter what.

The defendant before Judge Kopf suffered the “casual cruelty of correctional bureaucrats,” and yet there was no order to provide the defendant with his medication forthwith. There was no order demanding the immediate production of the warden of the facility that inflicted this casual cruelty to explain how he could inflict pain on a human being because policy trumped medical necessity.

So, I continued sentencing. No big deal.

No one was saved. Nothing changed. And the defendant not only suffered from the denial of his medication, but would be tormented by not knowing what his future would be. Next case.

23 thoughts on “The Primacy of Bureaucracy

  1. rafiv

    Perhaps my ignorance of federal criminal procedure is on display, but why couldn’t the court issue a sua sponte order that the marshalls retrieve his medication and administer it in the courtroom? Alternatively, couldn’t the court have conducted a brief colloquy and found the BoP abused its discretion and direct them to follow their procedures for medical review upon the prisioner’s return to the facility? Probably stupid questions but I had to ask.

    1. pj_cryptostorm

      Odd to be saying this, but as it’s written this isn’t a BOP failure. Indeed, the defendant is trying his best to get into the (direct) custody of a BOP FMC so he can be treated responsibly. This is some County lockup doing the typical (sadly) scary things County lockups do. And, true to form, the Marshals did their best to act responsibly and competently and professionally.

      As this fellow wasn’t even (technically) sentenced yet, isn’t he still under the direct custody of the court in any case? My understanding was always that, once the J&C is signed, there’s a magical handover of the victim – err, defendant – to the BOP: from the Court to the DoJ, straight across the wall of two of the three branches. This is admittedly a layperson’s understanding, to be clear – no idea if it’s legit or just what gets talked about on the other side of the table.

      The casual, quotidian cruelties of any system that locks up 2 million+ citizens is unignorable and inescapable. There’s really no way to “do it right” 100% of the time, or even 99% of the time. Most would agree (well, most I know anyhow) that the BOP does a fairly good job of doing what’s categorically a bad job to have to do (so long as you’re not a “political” like Jeremy Hammond, and being kicked around SHUs on the instructions of a prosecutor looking to break your spirit, of course). No matter how well the job is done, run the numbers and every day – every hour – something horrible is happening.

      Your tax dollars at work: the American Gulag, as is said from the other side of the razor wire…

      1. SHG Post author

        You’ve misunderstood a critical detail. The feds buy space from local lockups, but the prisoners remain federal prisoners and the local jails thus become responsible for their care just as if they’re federal facilities. That it’s a county jail is absolutely irrelevant; it’s a federal institution for the purpose of every federal prisoner in its care.

        1. pj_cryptostorm

          Good point – it’s BOP whether they’re leasing warehouse space from someone else, or running it themselves.

          One imagines this gets even more convoluted when for-profit lockups, contracted by the BOP, get poured into this noxious mix. I’ve heard said that there have been successful defences against routine prisoner-initiated efforts to hold private prisons to well-established standards, on the ground that – as nongovernmental, “private” institutions – they are exempt from such trivial concerns as FOIA, etc.


        2. Jay

          Yes, they’re federal prisoners, but cryptostorm is correct that the responsible agency pre-sentencing (for those held at non-BOP facilities, at least) is the Marshals, not the BOP. FWIW.

          1. SHG Post author

            You are correct, it is the Marshals rather than BOP pretrial, though I think cryptostorm was saying it was neither, but the county.

            1. pj_cryptostorm

              Correct – I was, in fact, envisioning the County as the responsible party. Incorrectly so.

              As the long arm of the courts, the Marshals are the ones with ultimate custody in this case.

  2. nidefatt

    For a guy that writes a lot of pieces about how great our constitution is, this is a really odd post. Unless you’re aware of some rule or caselaw that says a judge can sua sponte order medication be provided someone, your critique here is really just a critique of the most basic of limitations on judicial power. And its one I wouldn’t abandon for all the sick prisoners in the country.

    1. SHG Post author

      The judge has jurisdiction over the defendant and the United States of America, and yet you take the view that absent a rule or caselaw, he lacks the authority to order an agency of the United States not to engage in abuse of a defendant? I do not share your view that a judge lacks the authority to protect a defendant from cruelty and abuse by the government.

  3. PaulaMarie Susi

    “When it comes to prisoners, judges might suggest, but they never order. No matter what.”
    You need to get back to my courtroom, Scott, it’s been a while.
    We have, on the rare occasion it was required, issued such an order. We have directed the USMS to transport a prisoner to the hospital forthwith because he exhibited symptoms “we” perceived to be diabetic complications. He was mere days from a diabetic coma. If we get a complaint regarding meds, a call is immediately placed to MDC legal and resolved promptly. And we’ll put off sentencing to do it, as we lose jurisdiction after (and if we can’t put off sentencing, say if the deft truly wishes to go forward, the J&C doesn’t get docketed until the matter is resolved to our satisfaction)

  4. John Neff

    If the county jail will not treat federal prisoners humanely they can be moved to a county jail that will. The counties charge the federal government a lot of money to hold their prisoners so the USMS had a very big club they can use on the local sheriff.

  5. Richard G. Kopf


    I knew that he would be taken back to D&E where they would administer the medications D&E authorized. As a result, I was not required to enter a order directing that he get his medications. I also offered to sentence the guy in Lincoln the next time around so we wouldn’t have to go through this nonsense again since D&E is located at the main line prison in Lincoln.

    All the best.


    1. SHG Post author


      That circumvented the problem, but neither dealt with the problem of an act of casual cruelty toward a prisoner nor saved the next human being, who might not be so lucky as to make it to your courtroom alive. I understand that the courts and BOP have to get along, but isn’t there a limit?

      The sense from your post is that a judge is powerless to protect this prisoner. Is that so? Why?

        1. SHG Post author

          Or to put it in a different context, people are arrested, prosecuted, convicted and sentenced for casual cruelty every day. Why is it different when the party engaging in the cruelty is the government and the victim is the defendant/prisoner?

  6. Pingback: Casual cruelty–part two « Hercules and the umpire.

  7. onlymom

    i agree. judges have a lot more power than people think. If the judge will use it. If nothing else the judge could order the feds to stop using this facility since it seems to have a problem with following orders.

    We have a case here where a young man was caught for a crime in south fl. Took a plea that was to basically send him to lake butler prison for intake and processing and then basically be released with time served. THREEE YEARS later and two desperate court orders ordering fdoc to release him. He was still there and finally got fed up and escaped. well a few years later he got caught in my area. The judge here took a look at the case and the two other court orders. Then asked the guy if he wanted to stay here if released. He said no he wanted to go back home up north. The judge ordered the court officer to take him up the street to a goodwill store and get him an outfit to wear and then take him to the bus station and put him on a bus back to his home up north and then escort it to the state line. Just a few miles up the road. Then informed the DA that if the blind idiots who were running FDOC had a problem with it. They were welcome to come to his court room. Where they could start with explaining why they ignored two separate release orders from the original sentencing judge.

    for some reason it was never mentioned again.

    1. pj_cryptostorm

      Nicely done.

      If you have any pointers to news stories on this case, I’d love to read more. Good to hear when “the system” (in the form of a judge) gets it right.

  8. Pingback: The Con | Simple Justice

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