Monday, September 27, 2010

Ward v. Ryan (9th Cir. - Sept. 27, 2010)

Imagine that the government passed a statute that says that the first $50 in wages that you earn gets placed in a special account that you can't access until either (1) you become a member of Congress, or (2) you die, at which point the $50 goes to your heirs or for your burial expenses.  I would anticipate that there'd be a fury of protests, particularly from folks keenly concerned with property rights, and that a Takings Clause challenge would have a fair amount of judicial backing.

Now imagine that the government passed a statute that says that the first $50 in wages that you earn in prison gets placed in nearly identical special account, with the only difference that we change "become a member of Congress" to "get released from prison."  Any change?  Well, for a person who's serving a definite term, this seems like it's a burden, but a (relatively) minimal one.  But what about a person serving, say, a 197-year-to-life sentence?  The probability that this guy will ever get this $50 is likely less than the probability that any individual person will become a member of Congress.  What happens to that guy?

Well, for one thing, no protests, obviously.  No outcry.  He's a prisoner.  We don't care.  Indeed, the statute actually passes.  It exists today.

For another, we reject his Takings Clause challenge.  It doesn't take your money because you "might" get it if you're pardoned, etc.  Plus it goes to your heirs or final expenses.  Those arguments surely wouldn't be enough to stop strident opposition to a statute that imposed an analogous burden on "regular" people, but for prisoners, the arguments are persuasive enough.

All that said, in the end, I think that Judge Clifton is probably right that there's no compensable taking here.  I might have written the opinion a little differently than he did, since for me, I might have wanted to make it very clear that I'd have probably come out the other way if the money didn't go to the prisoner's burial expenses or heirs (or, in an appropriate case, if the prisoner can prove that he has no heirs and his burial expenses are pre-paid, I'd probably give him access to the money).  Judge Clifton's opinion carefully repeats the underlying facts here, but also deliberately avoids actually saying that these portions of the statute are prerequisites to its validity, presumably to give the panel (and future judges) wiggle room.  I'd have been more express.

But prisoners do have different rights.  Including but not limited to different property rights.  Whatever I might think of a statute more generally targeted -- and there's some analogue, I note, to social security and the like -- for those who are incarcerated, I don't think there's a takings here.  So I agree with the result.  Even if I might have written the opinion slightly differently.