May 22, 2010

In the past, Professor Reynolds has mentioned his support for ending qualified immunity, the special protection from liability afforded to government employees. I agree with him. If anything, public employees should be held to a higher standard than the rest of us.

The story of Michelle Ortiz is an unfortunate example of qualified immunity in action. Ortiz was molested by a prison guard while serving a one-year sentence at a correctional facility in Ohio. When she reported the assault, prison officials did nothing. Later the same evening, the same guard raped her. When Ortiz reported the rape, prison officials ordered her to solitary confinement, and did nothing to punish the guard. A jury awarded Ortiz $625,000. But a panel for the US 6th Circuit Court of Appeals threw out the verdict, finding that as state employees, the prison officials were protected by qualified immunity.

The Supreme Court will hear the case in the fall. The argument for qualified immunity is that we don’t want state employees hampered by fear of lawsuits when they’re making important decisions–be they policy decisions, or in the case of law enforcement, split-second decisions in emergency situations. The flip side of that, and what I find to be the more compelling argument, is that removing the possibility of liability (or at least making it very difficult for victims to win a lawsuit) is going to affect those decisions too. People tend to act differently when there’s less chance that they’ll be held accountable for their actions. That’s not a knock on government employees. It’s human nature.

Prison rape is another issue Instapundit has spoken out about. The current corrections culture that accepts prison rape as an inevitable part of hard time would change pretty quickly if we were to start holding prison guards, administrators, and wardens financially accountable for their negligence in allowing these rapes to continue.

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