Holy "Acoustic Separation"!

Sometimes legal doctrines operate to create a gap between the law's ostensible normative messages and its real-life outcomes.  This is the argument, as I understand it, made by Meir Dan-Cohen in his 1984 article Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law.  Dan-Cohen wrote that some legal doctrines operate to "trans[mit] different normatives messages to officials and to the general public."  Millbrook v. United States, a case argued this week at the Supreme Court, illustrates a variant of "acoustic separation" at work.  Millbrook highlights continued obstacles to relief for prisoners alleging sexual abuse, even as the DOJ announces a "zero tolerance" policy.

When I guest-ed at prawfs in September, I posted about the Supreme Court's then-recent cert grant in Millbrook.  The issue in Millbrook is the scope of the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) for the intentional torts of federal corrections officers.  Or as Kevin Russell  explained at scotusblog, the case concerns an "exception to [an] exception."  Russell's post is way more lucid than the intricate question in Millbrook deserves.  Here's my condensed paraphrase of his great explanation: while the FTCA generally waives immunity for negligent acts but not intentional torts by federal employees, an exception (the "law enforcement proviso") permits suit for certain intentional torts committed by law enforcement officers.  The question here is the scope of the law enforcement proviso.

As I explained in my last post, the plaintiff in Millbrook alleges a sexual assault by federal prison guards.  The Third Circuit affirmed a grant of summary judgment to the defendants in Millbrook's suit, reasoning that the "law enforcement proviso" applies only when the federal officers are engaged in a search, seizure, or arrest.  Millbrook filed a pro se cert petition and the SCOTUS granted cert.  At this point, as explained by Russell at scotusblog, the United States ceased defending the Third Circuit's narrow interpretation of the FTCA law enforcement proviso, and the Supreme Court appointed an amicus to defend the Third Circuit's decision and counsel to represent the prisoner.

Argument in Millbrook took place on Tuesday.  That was when I was reminded of Dan-Cohen's "acoustic separation," albeit in a different form from what Dan-Cohen described in criminal law doctrine.  Recall, as I posted in September, in May 2012, the Department of Justice issued new regulations under the Prison Rape Elimination Act (PREA), binding on the Bureau of Prisons (BOP) and announcing a "zero tolerance" policy regarding custodial sexual abuse.  Of course, we do not know whether Millbrook's allegations have any factual basis.  And the government's brief said they were rejected as "not substantiat[ed]" by the Office of the Inspector General (OIG).  (p. 7)  But it seemed notable to me that, so soon after the PREA regs were issued, the Millbrook argument focused not at all on how to create rules that would expose prisoner abuse or make victims whole. 

Rather, conversation centered on whether interpreting the FTCA waiver of sovereign immunity to include corrections officers' assaults on prisoners would result in an avalanche of prisoner suits.  For example, Justice Kennedy asked, since there are 200,000 federal prisoners, and "there is a lot of shoving" by prison guards, would the government's interpretation "vastly expand the number of cases in which the government is the defendant"? (p. 22)

And here's where I thought things got very "acoustic separation-y": the Solicitor General's office argued that any increase in prisoner suits resulting from a more generous interpretation of the FTCA law enforcement proviso would not really be a very big deal, because the Prison Litigation Reform Act (PLRA) cuts down on prisoner litigation so much anyway. (pp. 22, 55)  The Millbrook argument left me wondering whether, in Dan-Cohen's terms, there may be a "selective transmission" of different normative messages regarding the meaning of "zero tolerance." 

Things got weirder still when I looked back at Dan-Cohen's 1984 article while writing this post.  In describing the defenses of duress and necessity as a form of "acoustic separation" (known to judges but not to members of the public and so not undercutting the normative message of the criminal law), he wrote that the prison escape cases presented a "low degree of acoustic separation."  Courts restricted the use of these defenses in prison escape cases.  Dan-Cohen explained this was because of the possibility of high numbers of attempted escapes based on "threats of homosexual rape," and because "the relevant constituency--that of prison inmates--is highly attuned to legal prounouncements affecting it."

We shall soon learn the "legal pronouncements" in Millbrook, but we can only wonder how they will be received by all relevant actors.