Qualified immunity knocks out Jenna's Law challenge

A woman named Choice Scott made bad choices. That's why she went in jail, for armed robbery. But she also got a raw deal. At her sentencing, the trial judge gave her three years in the big house. The judge did not tell Scott that she would also be subject to five years' post-release supervision (PRS), requiring her to comply with certain conditions or she winds up back in jail under the terms of Jenna's Law. Scott learned about this post-release obligation when she was about to leave prison. She violated the terms of PRS and wound up back in jail for another 18 months after a parole-revocation hearing. This PRS was illegal, but it's also legal. Huh?

The case is Scott v. Superintendent Brian Fischer, decided on August 2. In Early v. Murray, 451 F.3d 71 (2d Cir. 2006), the Second Circuit said that administrative imposition of PRS is unconstitutional, and that a defendant therefore cannot be subjected to PRS unless the sentencing court orders that at sentencing. That did not happen for Choice Scott at her sentencing in 1999. Scott's lawsuit says that her subsequent 10-month jail term for violating the terms of PRS was illegal because the PRS itself was unconstitutional. Sounds like a great argument, but Scott loses the case.

Under the rules governing qualified immunity, you cannot sue public officers (including the parole officer in this case) for damages unless they violated clearly-established law at the time your rights were violated. It was not until 2006 that the Court of Appeals said in the Early case that administratively-imposed (as opposed to judicially-imposed at sentencing) PRS is unconstitutional. At first glance, since the parole violation warrant issued in 2002, the law in this area was not clearly-established for another four years. Scott tries to get around this by arguing that the Early decision is based on a U.S. Supreme Court ruling from 1936, Hill v. Wampler, which means that the rules that were violated in Scott's case were clearly-established for nearly 70 years.

This is a creative argument. Wampler says that the only valid terms of a defendant's sentence are the terms imposed by the judge. But Wampler involved a different circumstance than Choice Scott's dilemma in that Wampler involved the non-judicial imposition of a sentence that was ordinarily reserved to the discretion of the sentencing judge that the sentencing judge had not imposed. In Scott's case, the PRS was required by statute. Differences like this may seem trivial to non-lawyers, but they make a world of difference in cases like this.

The real twist involves the interplay between qualified immunity and the standards governing habeas corpus actions. Qualified immunity protects the defendant from litigation if he did not violate clearly-established law. In 1996, Congress decided that habeas corpus actions challenging the decisions of a state criminal court must be denied unless the state court violated clearly-established law. You rarely see any interplay between qualified immunity and habeas corpus standards in the same case. Both qualified immunity and habeas actions involve a determination of whether the law was clearly-established. Although the Second Circuit said in the Early decision (2006) that clearly-established law prohibited defendants like Scott from non-judicially-imposed PRS, Early was a habeas corpus ruling. "Clearly-established" in the habeas corpus context is not quite the same as in the qualified immunity context. As the Second Circuit sums up:

The conclusion, in the course of [a habeas] review, that a legal proposition was "clearly established" for purposes of its application for professional state court judges does not require a conclusion that it was "clearly established" in the qualified immunity context, which governs the conduct of government officials who are likely neither lawyers nor legal scholars.