Punitive damages? When it comes to malfeasance by public officials and employees, lay them on. Those who recklessly or deliberately allow, or impose, constitutional violations on those in their care should be fined. And they should pay out of their own pockets. The chilling effect of having to compensate their victims is just what is needed. Given the ever-increasing remove of government from the people, this may be the thing that stays the hands of public workers who are dangerously lax or cruel.
It is particularly important that people in government care be protected in this way. Once the state takes custody of your person, it has an absolute duty to take care of you. It is no secret that the state fails to perform this duty in the case of prisoners. The Post's series of articles on rape in the Prince George's County Jail and the frequent statements of fear of rape or other injury by the newly convicted are ample demonstration of that.
In general, a person whose constitutional rights have been violated by actions or agents of the government is compensated with tax monies, a faceless payment by the relevant bureaucracy. No person is held responsible for damages; we, the people are. In our name the immense authority and apparatus of government takes actions, and assumes responsibilities by doing so. We pay when they are done wrong or done in a harmful way. That's part of the contract between the governed and the governing.
Being employed by the government, however, does not relieve any person of individual responsibility for certain acts or the obligations of decency. Neither does government employment relieve an individual of responsibility when he or she is reckless, callous or indifferent, and constitutional violation results.
The Supreme Court, in a curiously close vote of 5 to 4, has recently affirmed that obligation and the liability of individuals to pay for such behavior. In that case, Daniel R. Wade had been physically abused by fellow inmates of a youthful first-offender unit in Missouri, to such an extent that he asked to be placed in protective custody. He moved through the system and landed in administrative segregation. He was out of the general prison population, but unfortunately, into a place where he was to be harassed, beaten and sexually assaulted.
William H. Smith came on duty as a guard and put a third person, sent to the "dormitory" for fighting, into Wade's cell. His two cellmates worked Wade over and raped him.
When Wade sued Smith and others, the district judge instructed the jury that it could award punitive damages if Smith had acted with "a reckless or callous disregard of, or indifference to, the rights or safety of others."
The jury found that was what had happened. The Court of Appeals agreed, and so did the Supreme Court. That seems right, just and straightforward.
Nobody disputes that what happened to prisoner Wade was a painful and dangerous constitutional violation or that the state should compensate him for his injury. But a number of people, including four Supreme Court justices, believe that Smith, the guard, shouldn't have to pay anything for letting it happen. Their reasons don't warm a civil libertarian's heart.
Three of the dissenting justices, while conceding that Congress has made provision for punitive damages, believe that they shouldn't be allowed unless the wrongdoer has "acted out of bad faith or improper motive."
Otherwise, they say, punitive damages are: punishment; a bounty that "encourages private lawsuits seeking to assert legal rights"; a windfall to people who have already been paid off; so expensive for the state to prosecute that any deterrent effect is offset by the costs. They fear a flood of lawsuits.
Of course there are going to be more suits. There are more people, more arrests, more criminals in prisons and jails. And the jails and prisons are terrible.
The fourth dissenting justice wonders if awarding punitive damages will "chill public officials in the performance of their duties more than it will deter violations of the Constitution." Well, it should chill them into stopping to think before they violate individual rights. That is the point. If it stops one public official from an unconstitutional act or spurs one to act in a responsible way, it has done its job. What legal act is it that an official won't do for worry about constitutionality or liability?
The other three dissenters worried about this point too. When "swift action is demanded, their thoughts will likely be on personal financial consequences . . . and not upon their official duties." Again, that is exactly what is wanted: public officials who act constitutionally even when they're in a hurry. Presumably what they weigh against their own pocketbooks is the Constitution.
The Constitution doesn't have an "unless" clause when it comes to securing rights. It's almost embarrassing to hear these views from the highest court, (too expensive, too much trouble, inconvenient for public servants.)
It is a blessing that five of the justices think first of the needs of the people and then see to the convenience of the bureaucracy. Establish more courts, create more judgeships, hire better people, improve facilities, do what needs to be done. But do not extinguish citizens' rights for expediency's sake.