By: Resham Patel

Published on: January 27, 2024

Tyhease Hicks was four years old when his father, Termaine Hicks, was wrongfully convicted for a rape he did not commit.[1]  In November 2001, Termaine Hicks ran to help a rape survivor after hearing her cries, but police mistook him for the culprit.[2]  Although he maintained his innocence, he was charged with rape.[3]  After almost two decades of incarceration, Hicks was released after the court found he was wrongfully convicted.[4]  While in prison, Hicks wrote letters to his son every month.[5]  During visits, Hicks made a conscious effort to ask Tyhease about his life.[6]  A few moments of connection between Termaine and Tyhease, however, are not enough to make up for twenty years of lost time.[7]

A single unjust imprisonment has a cascading effect that sentences family members to serve alongside the incarcerated individual.[8]  Wrongful incarceration has significant relational costs, and family members and loved ones are the hidden victims.[9]  According to the Registry of Exonerations, although Black Americans make up thirteen percent of the population, they account for more than fifty-three percent of the 3,266 exonerations in the registry.[10]  The disproportionate impact of wrongful incarcerations on Black Americans inflicts deep wounds.[11]  The incidental impact of wrongful convictions on a parent-child relationship, however, is particularly devastating.[12]

There is currently a circuit split between the Ninth Circuit and a majority of circuits, specifically the First, Second, Third, Fourth, Sixth, Seventh, Eighth, and Tenth Circuits, concerning the actionability of the incidental impacts of wrongful incarceration.[13]  At the focus of this split is whether children can claim an incidental violation of the right to familial integrity under 42 U.S.C. § 1983.[14]  While most circuits require a showing of specific intent––that state conduct be directed at the family relationship––the Ninth Circuit correctly permits incidental violations of the right to family integrity under a “conscience-shocking” standard in accordance with Supreme Court jurisprudence.[15]  In assessing incidental violations of the right to family integrity in wrongful incarceration cases, a “shock the conscience” standard is a sufficient state of mind requisite under 42 U.S.C § 1983.[16]

Although the language of section 1983 fails to specify a requisite state of mind for viable claims,[17] the Supreme Court has prescribed a shock the conscience standard for all due process violations.[18]  Under this standard, the Ninth Circuit applies two different tests: (1) deliberate indifference, and (2) purpose to harm.[19]  If the state actor had a legitimate opportunity for deliberation, the deliberate indifference test measures whether the state actor had knowledge of and purposely disregarded the consequences of their actions.[20]  If there was no ability or opportunity to deliberate, the purpose to harm culpability standard requires a showing that the state actor acted with a purpose to cause injury that is unconnected to a legitimate arrest objective.[21]

To assess the infringement of the right to family integrity in wrongful incarceration cases, a deliberate indifference test is most applicable because such cases involve a loss of liberty in a non-emergent situation where officers have the opportunity to deliberate.[22]  Application of the deliberate indifference standard is in line with Supreme Court jurisprudence and keeps a bar on negligence claims.[23]  In contrast, requiring an intentional deprivation of the right to family integrity aimed at the family relationship prescribes a higher standard to 42 U.S.C. § 1983 claims than the United States Supreme Court requires.[24]  Section1983 lacks language necessitating a showing of specific intent, and applying such a standard may lead to families not getting the recourse they deserve due to the effects of wrongful incarceration.[25]  Most importantly, a deliberate indifference test provides redress — arguably too little too late — for the hidden victims of wrongful incarcerations — the loved ones.

In conclusion, the Ninth Circuit’s application of the deliberate indifference standard under the “shock the conscience” test for incidental violations of the right to family integrity is consistent with Supreme Court precedent and appropriately tailored to wrongful incarceration cases.  This approach acknowledges the relational harm inflicted upon families and provides a necessary avenue for redress, unlike the more stringent intent-based standards adopted by other circuits.  Ultimately, holding state actors accountable for deliberate indifference to familial relationships recognizes the deep and enduring consequences that wrongful convictions have on the loved ones left behind.

[1] Curtis Bunn, As Innocent Black Men Wait in Prison to be Exonerated, Their Families Share the Toll, NBC News (Oct. 20, 2022, 9:06 AM), https://www.nbcnews.com/news/nbcblk/innocent-black-men-wait-prison-exonerated-families-share-toll-rcna52883.

[2] Id.

[3] Id.

[4] Id. (asserting the case against Hicks may have been a cover up of an unjustified shooting).

[5] Id. (mentioning Hicks made such effort to keep his connection with his son intact).

[6] Id.

[7] Id. (stating Hicks got emotional reflecting on how he missed so many important moments in his son’s life).

[8] See How Wrongful Incarcerations Affect Families With Dr. Amanda Lewis, Prison: The Hidden Sentence (Sept. 14, 2022), https://prisonthehiddensentence.com/podcasts/how-wrongful-convictions-affect-families-with-dr-amanda-lewis/ (comparing the impact of the miscarriage of justice to a ripple effect).

[9] See id. (pointing out that when someone is incarcerated, “we are sentencing their family to serve alongside them”).

[10] See Samuel R. Gross et al., Race and Wrongful Convictions in the United States 2022 (2022), https://www.law.umich.edu/special/exoneration/Documents/Race%20Report%20Preview.pdf.

[11] See Janani Umamaheswar, The Relational Costs of Wrongful Convictions, 31 Critical Criminology 707, 709 (2023) (explaining children of wrongfully incarcerated individuals suffer from depressive symptoms).

[12] See Chambers v. Sanders, 63 F.4th 1092, 1104 (6th Cir. 2023) (Moore, J., dissenting) (arguing a defendant’s conviction would destroy the family unit).

[13] Id. at 1098 (mentioning the Ninth Circuit is the only circuit to recognize the actionability of incidental violations of the right to familial integrity).

[14] See id. (illustrating that most circuits do not hold incidental violations of the right to family integrity viable because they require state conduct to be directed at the familial relationship).

[15] See Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (explaining most circuits require specific intent in contrast to the Ninth Circuit’s shocks the conscience standard). Compare Smith v. City of Fontana, 818 F.2d 1411, 1413 (9th Cir. 1987) (recognizing the right to family integrity where children brought suit against police officers who wrongfully killed their father), and Porter, 546 F.3d at 1132 (explaining that purpose to harm and deliberate indifference are applicable to due process violations under a conscience-shocking standard), with Trujillo v. Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1190 (10th Cir. 1985) (requiring specific intent for due process violations of the right to family integrity), and Chambers, 63 F.4th at 1095 (necessitating state action directed at the familial relationship for an actionable section 1983 claim).

[16] See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 855 (1998) (approving a shock the conscience test for due process violations).

[17] See Monroe v. Pape, 365 U.S. 167, 168 (1961) (holding specific intent is not required to allege a viable due process claim under section 1983).

[18] See Cnty. of Sacramento, 523 U.S. at 855 (applying a shock the conscience standard to a wrongful death case where an individual died while pursued by police officers).

[19] See Porter, 546 F.3d at 1137 (explaining whether a state actor had the opportunity to deliberate is determinative of which test applies).

[20] See id. (clarifying the deliberate indifference test applies in non-emergency situations where officers do not have to make snap judgments).

[21] See id. (utilizing purpose to harm in a rapidly escalating interaction between a police officer and an individual).

[22] See Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001) (utilizing a deliberate indifference standard to evaluate the infringement of the right to family integrity in a wrongful incarceration case).

[23] See Cnty. of Sacramento, 523 U.S. at 849, 855 (applying a conscience-shocking standard that is a sufficiently high bar to keep out negligence claims).

[24] See Monroe v. Pape, 365 U.S. 167, 168 (1961) (holding specific intent is not a requisite state of mind for a viable section 1983 claim).

[25] See id. at 170 (determining the absence of “willfully” from section 1983 implies that specific intent is not required for direct due process violations claims).

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