Multnomah County Claims That 8th Amendment Applies to Pre-SRV Inmates

Assistant County Attorney Andy Jones
Assistant County Attorney Andy Jones
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Andy Jones, an attorney for Multnomah County, erroneously claimed in a recent summary judgment motion that federal detainees accused of violating the terms of their federal supervision are the same as those in county custody for violating the terms of their parole. Mr. Jones' argument failed to account for key differences between parole and supervised release as well as the fact that the plaintiff in the lawsuit in question was not serving a term of imprisonment on the date in question. The lawsuit stems from the plaintiff being assaulted by jail deputies and having his arm intentionally broken.


Mr. Jones argued in a motion for summary judgment that "An inmate held pursuant to a judicially imposed sentence, including for violation of the

terms of parole or post-prison supervision, is protected under the Cruel and Unusual Punishment clause of the Eighth Amendment, not the Fourth or Fourteenth Amendment." To support his position, Jones cited Canell v. Multnomah County, 141 F.Supp 2d 1046, 1052 (D. Or 2001). Canell made no mention of "post prison supervision" as Jones implied, dealt only with someone in custody while on parole or after being sentenced for parole violations, and only addressed the Fourteenth Amendment as applied to persons serving sentences for violating parole in the State of Oregon. The relevant paragraph from Canell read:


"Assuming arguendo that a Fourteenth Amendment analysis should apply to the alleged pretrial detainee claims, it is undisputed that plaintiff was either on parole or in custody pursuant to a revocation of parole during the time of his incarceration in the Multnomah County Corrections facilities. An inmate serving a sentence of incarceration on a parole violation is not a pretrial detainee." - Ninth Circuit


The Canell decision did not specify if Canell were incarcerated pending a hearing on alleged parole violations at any time covered by the lawsuit, but that really would not matter. The U.S. District Court for the District or Oregon has already ruled that the plaintiff was on federal supervised release and was being detained pending sentencing for a violation of supervised release. A person on supervised released is not similarly situated to a person on parole. This is evident in the United States Sentencing Guidelines:


"(b) Supervised release, a new form of post-imprisonment supervision created by the Sentencing Reform Act, accompanied implementation of the guidelines. A term of supervised release may be imposed by the court as a part of the sentence of imprisonment at the time of initial sentencing. 18 U.S.C. 3583(a). Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court. " - USSG Chaper 7 (https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-7)


Based on the U.S.S.G. one can see that there is a distinct difference between parole and supervised release. A person on parole is serving the remainder of a term of imprisonment in the community. A person on supervised release has completed their term of imprisonment and has been released into the community. That difference is obvious if looking at two sentencing proceeding side by side when one is sentenced to imprisonment with eligibility for parole after a specific period of time and the other is sentenced to a term of imprisonment not to exceed a specific amount of time followed by a term of supervised release. The difference between a person serving a term of imprisonment and one that is not makes Canell's holding that persons on parole are covered by the Eighth Amendment irrelevant to persons on supervised release. Furthermore, 18 U.S.C. 3624(e) (https://www.law.cornell.edu/uscode/text/18/3624) only authorizes the imposition of "a term of supervised release after imprisonment" not during, so it is impossible to be both imprisoned and on supervision in the same case at the same time, and again the court already held that the plaintiff was on supervised release when his arm was broken.


The Ninth Circuit's decision in United States v. Morales-Alejo, 193 F.3d 1102 (9th Cir. 1999) (https://casetext.com/case/usa-v-alejo) further supports the plaintiff's position. In that case the Ninth Circuit held that a term of supervision cannot be tolled during a period of pre-trial detention even if the supervisee is convicted and that term of pretrial detention is credited towards his sentence. In Morales-Alejo the Ninth Circuit clearly distinguished between a sentence of imprisonment and a period of pre-trial detention before ruling that Morales-Alejos prior term of supervised release had been served in pre-trial detention. Had the Ninth Circuit wanted to adapt the position that a person's status as a detainee can be retroactively changed to that of a sentenced inmate serving a term of imprisonment they would have. The Ninth Circuit explained, "there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted." The plaintiff argues that a pre-violation detainee is indistinguishable from a pretrial detainee because a person in pre-violation detention is in detention due to an allegation of a violation not a conviction, has not yet been violated and might never be violated. In United States v. Brown, the U.S. District Court for the District of Alaska (3:04-00119-JWS) appeared to support the plaintiff's argument when it ruled that a person held pursuant to civil commitment proceedings following release from a term of imprisonment was not imprisoned despite never leaving Bureau of Prisons custody.


Conclusion


As a person not serving a term of imprisonment, the plaintiff's excessive force claim is governed by the Fourteenth Amendment and not the Eighth Amendment. If the court were to adapt the position that a person on supervision, who does not have the right to be punished at all beyond their conditions of supervision, were to have their conditions of detention evaluated under Eighth Amendment standards, then they would not enjoy the equal protection of the laws that all other detainees whose detention is not a punishment enjoy, and the word "punishments" in the Eighth Amendment's "cruel and unusual punishments" clause would be meaningless.


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