| Rob Bastian you are my hero!!!!!!!!! Published again! What
a wonderful op-ed in the LA Times. I've said it before, I'll
say it again, you are possibly the greatest lawyer of all time.
I wish you did criminal cases but we are fortunate to know you and have you on our side as a civil lawyer And Eddie Dillard WAS in fact tortured and the guards got away with it. And I can sit here and name case after case of torture, including that of my own son, and the guards and wardens all got away with it. Robert Bastian, your pen, your courage, your love of liberty serves us all well and there is no way that we can ever repay for your many years of hard work and financial sacrifice in taking on these bully guards my friend. I am very proud of you to say the least. We could all start with writing in to [email protected] and mentioning this article as we describe torture in California's prisons in honor of our hero Robert Bastian's donated writing masterpiece. I hated all lawyers until I met and fought alongside Robert Bastian. He is as deeply incensed as any of us over the ongoing torture of California inmates which goes unpunished and often, unreported. B. Cayenne Bird
May 6, 2004 COMMENTARY
By Robert L. Bastian Jr., Robert L. Bastian Jr. is a Los Angeles lawyer. President Bush has asserted that the abuse of Iraqi prisoners at Abu Ghraib "does not reflect the nature of the American people." "That's not the way we do things in America," he added. In terms of aspirations, Bush is certainly correct: Americans generally do not regard themselves as arrogant, abusive, violent, mean, petty and ignoble. As a matter of empirical, verifiable fact, however, the best social scientific evidence suggests that the president is simply wrong on both counts. In 1971, for example, Stanford psychology professor Philip G. Zimbardo initiated an experiment in which participating Stanford students were designated either as prisoners or guards, with guards told to maintain order. After only a few days, the project had to be terminated prematurely because the guards were, with no apparent motivation other than fulfilling their roles, becoming uncomfortably abusive toward the prisoners. What does that say about our "nature"? In another famous experiment, Yale psychology professor Stanley Milgram told subjects to give electric shocks to a victim in a learning experiment. As the victim — an actor in another room who was not actually being shocked — gave incorrect answers, the participants were asked to turn the voltage up, even to where the dial read "danger," a point at which the victim could be heard screaming. Although often reluctant, two-thirds of the subjects continued to follow orders to administer shocks. Given that, what's so surprising about the fact that in 2004, reservists controlling the relevant tier in Abu Ghraib prison would — in an effort to follow orders — agree to "soften" the Iraqi detainees for questioning? If the president was wrong about the nature of the American people, he was no less wrong about the way things are done by Americans. At the outset of the occupation, it was earnestly argued that the Iraqi people would welcome and benefit from imposition of U.S.-style democracy and freedoms. The American public — and, I suspect, most of the world — believed that Americans could do a better job of running a prison such as Abu Ghraib. We're not arbitrary, abusive, unaccountable or unjust, right? Indeed, last June, Brig. Gen. Janis Karpinski told a reporter that Americans were making living conditions so much better at Abu Ghraib that she was concerned prisoners "wouldn't want to leave." But again, we are deluding ourselves. The hard fact is that the U.S. did install in Iraq an American-style approach to prison management. Like the U.S. prison system, it is underfunded and inadequately supervised, lacks civilian oversight and accountability and is secretive and tolerant of inmate abuse until evidence of mistreatment is pushed into the public light. That, regrettably, is the American model. Over the last four decades, political leaders here at home have committed themselves to incarcerating inmates at rates that ultimately rivaled the former Soviet Union and repressive Middle Eastern regimes. Prisons have grown overcrowded and understaffed. At the same time, there has been no commensurate commitment to protecting prisoner rights or upholding even minimal standards. Both state and federal legislatures, with the complicity of federal courts, have continually trimmed avenues of legal redress for inmates subject to abuse. For its part, the public was fed the myth that prisoners were coddled, and accepted on faith that inmates were treated fairly. The public faith was interrupted only when graphic images materialized as evidence or by guards "rolling over." Regarding Abu Ghraib, testimonial evidence of abuse was reported by no fewer than half a dozen organizations, including Human Rights Watch and Amnesty International. Until photos were shown on "60 Minutes II," though, they were merely allegations and, therefore, not the subject of public concern and remedial action. So, what has been shown in Abu Ghraib that has not already been seen in the U.S.? Recently, images of cages in which California Youth Authority wards were locked up for as much as 23 hours a day were broadcast. In 2001, Human Rights Watch reported in detail how extensively rape is tolerated in U.S. prisons. The Eddie Dillard case, in which I represented the inmate, revealed a paper trail with respect to one prolific cell rapist responsible for more than 30 reported incidents of attempted or completed sexual assaults at six different California prisons. Still, the predator was assigned more cellmates. The accumulated result: A federal district court judge in Northern California has threatened to take over the California Department of Corrections because it can't break the code of silence among its guards and take responsibility for the integrity of its mission. In the last decade, the department has restricted visits by family and journalists to the remote locations where prisons have been scattered, on the ground that the press might glamorize prison life. Or has it acted to impede reporting of underfunding and abuse? In the shadow of the infamous Abu Ghraib photographs, it's easy to understand why much of the world looks upon Americans as craven and arrogant. In so many ways, the United States' interests and international image have been harmed as we act on our aspirations and self-congratulatory beliefs instead of a cold, hard view of reality, including our own limitations. No less a figure than Winston Churchill famously said that "treatment
of crime and criminals is one of the most unfailing tests of civilization
of any country." If Churchill is right, so, at the moment, are America's
critics.
This appeared in the Los Angeles Daily Journal, Tuesday, June 1, 2004, p. 6 COURTS SHOW DELIBERATE INDIFFERENCE TO JAILHOUSE VIOLENCE By Robert L. Bastian, Jr. On Dec. 20, 1997, Daniel Segovia, whom our office represented, was dragged – after all the cell doors on his row in a Men's Central Jail gang module inexplicably opened simultaneously – into a cell with six other inmates, mauled and stabbed 52 times. The jail's policy was to leave all the gang module doors locked and closed. No one can (or will) say why Segovia was called out of his cell for a visitor who never existed or why, after he was on the row, all cell doors suddenly opened in violation of this policy. This is because the jail could not establish who was on duty at the time. Of the entire pool of deputies who might have been at the door-switch post, none recalled an inmate being stabbed 52 times after someone threw that switch. Neither the sheriff's investigation of the incident nor the supervisor signing off on the report ever asked, "Who was on duty? Who opened the doors? Why? And why wasn't the policy breach reported?" The sheriff's investigator interviewed each of the six inmates in close proximity to one another where they were able to monitor each other's cooperation. No one was prosecuted. Each of the six got off with 10 days' loss of privileges. That was in 1997. In recent days, the Los Angeles County Sheriff's Department has conceded that no less than five jail inmates have been killed or beaten during the past 18 months in retaliation of testifying against other inmates. That the Sheriff's Department cannot even protect such witnesses should be a strong hint of just how entirely out of control inmate-on-inmate violence within the jail has spun. This obviously is a failure by the sheriff, who is charged with managing the jail and supervising its staff. Also sharing responsibility are the Board of Supervisors, which oversees the jail budget; the courts, particularly the federal courts, who typically hear prisoner complaints; and to a lesser extent, the special counsel designated to monitor the Sheriff's Department. When conditions become so bad in jail that someone is murdered, then the media might report it. Finally, the public, which elects the sheriff, might take brief note. But the public and its representatives generally don't care. Over the past four decades, the public has accepted the myth that undeserving prisoners are coddled. Thus, no sheriff gets elected on a platform of improving conditions of confinement. The "silent majority" still feels victimized by crime and viscerally reacts against any suggestion that there is a public duty to maintain minimum standards with respect to inmates. This is particularly true in times of fiscal trouble that, with respect to jail funding, is 100 percent of the time. The one institution structured to protect the baseline constitutional rights of a minority such as inmates is the federal court. Generally, though, federal judges don't care either. At a minimum, the Eighth Amendment to the U.S. Constitution, which generally prohibits cruel and inhuman punishment, imposes a duty on jail officials to take reasonable measures to guarantee the safety of inmates from violence by other inmates. Over the last four decades, however, federal courts have shirked their responsibility to ensure minimum standards. Instead they have created and enforced improbable if not impossible legal standards as preconditions to granting inmates any meaningful relief from the intolerable conditions they face. A victim of assault by another inmate must prove, no matter how preventable the assault was, that a government official was "deliberately indifferent" – a standard somewhere between negligence and an outright intent to cause harm. "Deliberate indifference" is also a "judicial gloss." More specifically, it is a creation of a Supreme Court generally hostile to individual civil rights, and which selected this standard over negligence in its selective interpretations of the Constitution and 19th century civil rights statutes. Additionally, "deliberate indifference" is a blatant oxymoron. Justices, who otherwise favor "bright-line" rules when they inure to the advantage of law-enforcement defendants, were attracted to the obtuse and intellectually indefensible "deliberate indifference" standard for two reasons. First, the court's more conservative justices apparently do not believe in aggressive enforcement of the constitutional rights of individuals against majority interest. Instead, they believe individual rights should be enforced only if they arise from the states and have strong majoritarian supports. And there is latent animosity against prisoners who assert their rights. Although a principled analytic approach would sharply distinguish between the formal punishment inmates receive after due process, in contrast to the treatment they receive while in prison, the distinction breaks down in practice. Courts, reflecting public attitudes, resent arrestees and inmates, holding them morally responsible for the conditions of their confinement on the grounds that it was their fault they were arrested and incarcerated in the first place. When a judge or a juror expresses the sentiment that "the problem today is there is too little acceptance of personal responsibility," you can throw away both the jury instructions and the evidence because the plaintiff prisoner is going to lose. Thus, little support exists for "rewarding" such plaintiffs with effective relief. The flip side of public scorn for what once was perceived as a permissible attitude toward criminals is a permissive attitude toward official misconduct. These underlying attitudes are reflected in a palpable divide regarding how the "deliberate indifference" standard is interpreted. Conservative judges with a bias against inmates are more apt to interpret this as requiring "deliberate" official misconduct, while the less numerous civil libertarians are more likely to emphasize an official's indifference. The result is that "deliberate indifference" better describes the federal courts' overall attitude toward problems in American prisons and jails. A pertinent example of an inmate not being able to meet the standard of "deliberate indifference" – and the resulting deliberate indifference – is our client Daniel Segovia. During litigation, Segovia asked for jail statistics on inmate-on-inmate violence. He twice was told none existed, but after a persistent effort, he finally was given statistics for 1995 (761 incidents), 1996 (766) and 1997 (896). These numbers, probably understated, demonstrated not only a high level of violence but a rising trend. In the month Segovia was stabbed, there were, on average two incidents of inmate-on-inmate violence reported per day. In his lawsuit, Segovia asked the federal court how the county could possibly have been more indifferent without being deliberate. But the District Court summarily dismissed his lawsuit on grounds the deliberate indifference standard had not been met. A 9th U.S. Circuit Court of Appeals panel, foregoing oral argument, upheld the dismissal in an unpublished opinion. The 9th Circuit declined the plaintiff's request to review the matter en banc. No changes in policy, training, reporting, supervision or discipline where ever instituted as a result of his stabbing. It should come as no surprise that where jails and prisons are continually underbudgeted, federal standards of liability set the base level of jail conditions. If the federal courts had set the standard at reasonableness – the standard by which private individuals and corporations typically must regulate their behavior -- then jails and prisons would no doubt be funded to the point where they provide reasonable conditions of confinement. But deliberate indifference is the standard the court sowed. In return, deliberate indifference is what the criminal justice system reaped. What the Board of Supervisors saw when they recently toured Los Angeles county jails is what my law partner Marina R. Dini and I saw when we visited the jail five years ago during the Segovia case: The jail is so thoroughly overcrowded, unsanitary and violent that the county could not possibly be more indifferent to the rights of inmates without deliberately willing their violation. In November 1999, I wrote to the Sheriff's Department's special monitor about the Segovia case, complaining that inmate-on-inmate violence was so poorly investigated and reported no one had any way of knowing how many preventable assaults were occurring within the jail. But the special monitor never responded. Had someone in a position of responsibility paid close attention to Segovia's case, they might have insisted that, when instances of inmate-on-inmate violence occurred, at a minimum jail staff should report whether the jail's door polices were followed, and, if not, whether appropriate remedial discipline, retraining or rule revision were implemented. In these days of "compassionate conservatism," one might ask the philosophical riddle: If an inmate in county jail screams, does he make a sound? Sadly, the answer is no. Otherwise, the effort to sort out jail violence would have begun in earnest thousands of inmate-on-inmate assaults ago. Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini in Los Angeles
JOURNAL NEWSWIRE ARTICLE
April 26, 2004 OFFICERS MUST BE ACCOUNTABLE FOR INNOCENT VICTIMS OF PURSUITS
The state Legislature should enact SB1866, the bill to repeal police
immunity for injury-causing police chases where the public is not otherwise
in "imminent peril." The legislation promotes public safety, fairness and
governmental accountability. Its only flaw is that it does not go far enough,
making injury to innocent bystanders a matter of strict liability.
The research of a nationally recognized expert in police pursuits, professor Geoffrey Alpert, indicates that 40 percent of pursuits end in crashes, 20 percent in personal injury and 1 percent in death. Alpert observed that, since 1985, these percentages are consistent from study to study, jurisdiction to jurisdiction, regardless of pursuit policy. But the death that grabbed the attention of the bill's sponsor, Sen. Sam Aanestad, described as a law-and-order Republican from a rural district, was that of his 15-year-old constituent, Kristie Priano, a promising, popular and loved honor student, class officer, community volunteer and athlete. The Chico police were engaged in a high-speed chase of another teenager who took her mother's car without permission. Even though they knew where the joy-riding girl lived, police pursued the car at high speeds through numerous intersections until the fleeing car struck the van that Kristie was riding in, killing her. The law requires police departments to have promulgated written procedures for police chases to immunize the officers. Remarkably, the law does not require officers to follow those procedures. Nor does it set standards for the quality of the procedures. Regarding the chase resulting in Kristie's death, Chico Police Chief Bruce Hagerty stated that the officers followed policy. "As pursuits go," Hagerty said, "this is as controlled as you can get." That is precisely the problem. Police chases are, according to Los Angeles Sheriff Lee Baca in a letter to Aanestad opposing the bill, "extremely complex, dynamic and unpredictable events." But, as such, they are extremely simple and predictable in their result: the more police chases, the more unintended consequences, carnage and tragedy. All the more reason to subject them to outside supervision. Police opposition focuses on the legislation's potential cost in terms of municipal liability. The issue, however, is not so much what the cost is as who shall bear it? The law is that the innocent victim injured, maimed or killed at random must bear the entire cost of such policies. The logic of the law is that police pursuits are not so important that the public should underwrite their foreseeable costs but important enough to impose a negative lottery ticket on the Kristie Prianos who are mowed down at random. The ethicist John Rawls famously tested the fairness of public policy by conducting a thought experiment, positing a veil of ignorance: If everyone was afforded a pre-understanding of the distribution of a policy but was unaware on whom the distribution fell, would he or she consent to the policy beforehand? If we know in advance that police pursuits to benefit the polity are going to mow down innocent victims, would we distribute the cost of that benefit across the polity or concentrate it only on the victims? People would be unlikely to disagree about whether a child should be sacrificed for the overzealous enforcement of law that, with but a little police patience, could have been enforced, anyway. Holding such negative lottery tickets is not part of the social contract. Supporters of police pursuits complain that the question, as phrased, misdirects blame away from the person who started the pursuit. Instead, critics suggest the better approach is increased criminal penalties for fleeing. But it takes two to form a pursuit. The issue is not inviting a pursuit. It is accepting the invitation. Added criminal penalties are unlikely to deter where a fleeing suspect's judgment, presumptively lacking, is impaired by alcohol, drugs, mental illness or, in the case of the driver who slammed into the van carrying Kristie, teenage immaturity. If people assume that police pursuits serve a public benefit, then the public should pay the cost. Still, Baca warns against a potentially "enormous liability" for law enforcement from the bill. Impliedly, then, the more "enormous" the liability, the more enormous the cost now unfairly imposed at random. Finally, some police officers express resentment, even a sense of betrayal, at the thought of having their streetwise judgments questioned "with the benefit of 20/20 hindsight" in the sanctity and calm of court. In court, however, the defendant police officer's job is not at stake, nor does he face discipline as he might under the present system of internal police department review to determine whether he followed the department's promulgated policy. At stake in court is, Who shall pay the otherwise private cost of a public benefit? The real second-guessing comes from the responsible department heads or municipal entities in determining whether such chases are, after accounting for all of their costs, an effective use of budgetary resources. That is, those managing public resources must, when confronted with the entire costs of their policies, continually review whether the benefits outweigh the costs and justify those decisions to the polity. Those are the real decisions which, under the new law, will be subject to second-guessing. In short, SB1866, by more closely matching the costs of such policies to the perceived benefits, results in a public policy not only of greater fairness but also of greater accountability. Under the current law, all the parents of Kristie Priano can do is maintain a Web site dedicated to their daughter and continue to lobby their elected representatives in Sacramento. In the process, though, they have turned their tragedy into a proposal that promotes safety, fairness and public accountability. Robert L. Bastian Jr. is a partner
in Bastian & Dini in Los Angeles.
This piece appeared in the Los Angeles Daily Journal, Tuesday June 22, 2004. Rob Bastian is a civil lawyer in Los Angeles who stands up and fights for us and with us, a very dedicated humanitarian lawyer. The Daily Journal goes to judges and other lawyers and we are grateful to have his mighty pen in there addressing directly the people who make these decisions. We have his writings at our website and can't thank him enough for all that he's done for inmates, especially the Dillard Trial that we backed up last year at Corcoran while all these email groups sat on the sidelines and didn't help. You never see these email groups who bash us bringing forward lawsuits and they don't have the great lawyers either. Let support Rob by writing to the Daily Journal editor on this one. when many letters arrive, they want him to publish again. The power of numbers making noise works well everywhere. Write about THIS article to: BUSH SHOULDN'T STEER COUNTRY WITH LEADERSHIP BASED ON FAITH By Robert L. Bastian Jr. Some view recent ACLU success in persuading Los Angeles and San Bernardino counties to remove crosses from their respective seals, or in persuading a 9th U.S. Circuit Court of Appeals panel to uphold removal of a cross from federal land, as relatively trivial distractions from more pressing issues. Likewise, the Supreme Court's recent refusal to hear a challenge to inclusion of "under God" in the Pledge to Allegiance, on the dubious and evasive technical grounds that the noncustodial father who objected on behalf of his child lacked standing, has a "Why now?" quality in its reasoning and tone. On the surface, imposition of tiny crosses on a government seal or the words "under God" in the pledge seem to many only tiny encroachments on individual liberty. Tolerance, after all, is the ultimate object of the Establishment Clause. Making a stand on such straws seems, in its own way, vaguely intolerant. Still, the importance of a well-maintained wall between church and state is arguably more important now than ever. Such Establishment Clause cases often narrowly focus attention on whether the person bound to such compulsory activities such as pledging or viewing symbols suffers distressing feelings of exclusion or unwelcome indoctrination. Although the feelings symbols invoke are an important barometer of an impermissibly intolerant climate, more is at stake. Recently, former President Bill Clinton pertinently observed while acknowledging
a heritage of faith in America that we also have a tradition of relying
in our public decision-making upon evidence.
In the broadest philosophical sense, the founders declared independence
from English monarchy and official religion by forming, instead, a constitutional
democracy guided by nlightenment-inspired
Benjamin Franklin, according to author Walter Isaacson in his recent biography of him, reviewed Thomas Jefferson's draft of the Declaration of Independence, crossed out "We hold these truths to be sacred and undeniable", and replaced it with, "We hold these truths to be self-evident." After a common secular, self-evident belief that all men are created
equal and endowed with certain inalienable rights to life, liberty and
the pursuit of happiness, the operative social contract assumes
Trials by jury were instituted to establish facts. Branches of government
were posed against each other to temper passions. We persuade each other
across denominations with appeals to evidence,
An essential aspect of tolerance and respect for others is that pluralistic
public debate is conducted in terms that can be verified and tested in
the world we share, not by divination of sectarian
In recent public life, however, belief often has supplanted evidence, conviction overtaken experience, and ungrounded aspiration displaced fact-based decision making. In an implicit criticism of the current president, Ronald Reagan Jr. noted that, although his own father believed God spared his life after the failed assassination attempt for a reason, he embraced that faith as a responsibility, not a mandate. By contrast, George W. Bush has acted as if he received - after the Supreme Court terminated an end to an accurate empirical examination of Florida votes - a broad mandate to steer this country rightward with leadership based on faith. Unsurprisingly, Bush's most consistent and motivated electoral support
comes from religious traditionalists, regardless of denomination. Responding
to that base, the Republican Party has
In committing America to war in Iraq, the administration ignored, misinterpreted and, sometimes, manipulated evidence, leaving the sense that the decision was based upon a puffed-up belief in American invincibility and righteousness, poorly tempered by knowledge of the world - the Mideast in particular. Call it neoconservative utopianism, American exceptionalism, or just
plain ultranationalism. Or call it having an agenda, grudge or gambling
mentality. They are all variations on a triumph of faith
Regrettably, the voting public is poorly positioned to check these trends until after they have happened. One of the gaps in democratic theory, Walter Lippman stressed in "Public Opinion," is that voters are typically dispossessed of the detailed facts necessary to flesh out such issues as they arise. Particularly in time of crisis, the public is dependent upon the political
elite to marshal evidence and make reasoned, defensible choices. In short,
the public must take it on faith that our leaders
Although prayer is fine, we do not want to hear that the president's
god told the commander-in-chief to go to war. Instead, we want to know
that the president knowledgeably consulted with, among others, secretaries
of State, Defense and Intelligence, the National Security
Similarly, there are few areas where the public takes more on faith than regarding what goes on in jails and prisons, at home or abroad. Enabling this dependence, the Administration suppressed release of Abu Ghraib photos even as it argued before the Supreme Court that facts regarding the confinement of inmates at Guantánamo should be shielded from court review. Federal courts have done their part in interjecting a preference for
belief over evidence when, for example, they imposed a judicially fashioned
layer of bias in favor of government over its victims in
The corruption of this style of thought, recast as legal doctrine, has
reached its apotheosis in the recently revealed memoranda prepared by Justice
Department lawyers - advice solicited and
The memo cynically instructs American interrogators and guards how to
play the law if some of the other equally cynical arguments the administration
raises - such as that the president's power to
The memo instructs that the otherwise abusive guards still could claim
good-faith immunity so long as their main intent was something other than
inflicting pain. Thus, self-serving justification and
Where the habit of governing is based upon God, commandments, prayer and "good faith" belief, instead of reason based upon evidence and experience, the predictable result is a divided polity, and an authoritarian government hostile to pluralistic views, disrespectful of dissent and unaccountable under law for uncomfortable facts. In matters of government, trust is a poor substitute for accountability.
The Founders' correct assumption is that successful government in a pluralistic
nation, by its very nature, must be based
Taking those little crosses off government seals is a reassuring formal concession that, in American governance, belief still does not trump evidence. Robert L. Bastian Jr. is a Los Angeles attorney with the Law Offices of Bastian and Dimi.
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