Posted by Orin Kerr:
The Role of Compassion in Judicial Decisionmaking:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239075220
Public debates on the proper role of the courts often focuses on those
who see the judge's role as heavily constrained by precedent and text
and those who think judges should feel more free to make rules and
decisions in light of the equities of the situation. I was thinking of
that tension when I read an en banc decision of the Third Circuit from
last summer, [1]Pierre v. Attorney General. I'm going to describe the
basic facts and legal standard of this very disturbing case, and then
have a reader poll on how you would vote if you were a judge.
Here are the tragic facts. Pierre is from Haiti, and he was living
lawfully in the U.S. as a permanent legal resident. Pierre is deeply
troubled and has very violent tendencies, however. One night, he broke
into the home of his ex-girlfriend and attempted to kill her. When a
neighbor interrupted the attack, Pierre attempted to commit suicide by
drinking a container of battery acid. His suicide attempt was
unsuccessful, however: He lived, but his ingestion of the battery acid
destroyed his ability to eat or drink normally. Pierre can survive
only by receiving constant medical attetnion: He must be fed a liquid
diet administered through a feeding tube.
Pierre was convicted of attempted murder and served the mandatory 10
years of his 20-year sentence in a U.S. prison, where he received the
medical care needed to keep him alive. After the mandatory 10 year
sentence was up, the INS concluded that it was going to deport Pierre
for having committed an aggravated felony.
If Pierre is deported back to Haiti, he will be detained
indefinitely in a Haitian prison. Haitian prisons are brutal. In
particular, there are no medical facilities to feed Pierre and keep
him alive. Haitian prisons just can't provide Pierre with the medical
care he needs. If Pierre is sent back to Haiti, he will almost
certainly die of starvation in prison in a matter of days or at most
weeks.
Now let's turn to the law. The only power a court has to stop the
INS from removing Pierre in such circumstances is under the Convention
Against Torture, as enacted into federal law by Pub. L. No. 105-227.
Under the Convention Against Torture, courts must intervene in the
removal if the individual can show that he is more likely than not to
be tortured if sent to the proposed country of removal. Pierre's
argument is that the failure of Haitian authorities to provide him
with adequate medical attention will be tantamount to torture -- he
will slowly and painfully starve to death -- and therefore the court
must block his removal.
The relevant regulation, 8 C.F.R. ยง 208.18(a)(1), limits torture
to that which is
intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.
Now imagine you are a judge forced to decide Pierre's fate. Do you
vote that Pierre must be sent to Haiti where he will die in a matter
of days because the regulation clearly limits torture to conduct
"intentionally inflicted," and the suffering that Pierre describes
would not be intentionally inflicted? Or do you you vote that Pierre
can stay in the United States, because the statute and regulation
should be read to include the horrific reality of what will happen to
him as tantamount to torture? To add another wrinkle to this, the
options will also ask you to categorize your general public policy
preferences -- as right-of-center, left-of-center, or "other." Here's
the poll:
You are a judge who must vote in Pierre's case. Do you vote to allow
Pierre's removal from the United States, or must he be allowed to stay
in the United States?
(_) I vote to allow the removal. My politics are right-of-center.
(_) I vote to allow the removal. My politics are left-of-center.
(_) I vote to allow the removal. My politics are "other."
(_) I vote he must be allowed to stay here. My politics are
right-of-center.
(_) I vote he must be allowed to stay here. My politics are
left-of-center.
(_) I vote he must be allowed to stay here. My politics are "other'."
Vote View
[2]Free polls from Pollhost.com
References
1. http://www.ca3.uscourts.gov/opinarch/062496p.pdf
2. http://www.pollhost.com/
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