Infamous Boston mob boss James “Whitey” Bulger was beaten to death almost immediately after arriving in October 2018 at a West Virginia prison. His nephew blames prison officials and is fighting to hold them accountable in a case that has implications that go far beyond the demise of one elderly murderer.
Bulger was 89, used a wheelchair and had a history of serious cardiac problems when he was transferred to USP Hazelton and put in general population after the facility he had been in asked that he be moved. Inmates in West Virginia knew he was coming, while staff members were not prepared for his arrival, according to a subsequent Justice Department report.
“He was outrageously placed in a position where he wouldn’t last a few hours,” attorney Jay T. McCamic told the U.S. Court of Appeals for the Fourth Circuit on Thursday, where a panel of the court was weighing whether a lawsuit Bulger’s family filed should be revived after getting tossed by a lower court. “Nobody gets fired, nobody gets suspended, nothing happens.”
While the report is “a good road map,” McCamic said, only a lawsuit would get the family all the facts. The Justice Department said there was no “malicious intent or failure to comply with BOP policy,” but that Bulger’s death followed “staff and management performance failures; bureaucratic incompetence; and flawed, confusing, and insufficient policies and procedures.”
The suit, originally filed in late 2020, says there were policy violations, as well as cruel and unusual punishment, when Bulger was put in the general population at a notoriously violent and understaffed facility. He was a killer who had famously informed on his rivals to the FBI. He had been publicly labeled a “pedophile” by a former associate. He was housed with at least one other inmate with ties to organized crime in Massachusetts.
But because of the way the Supreme Court has ruled on suits against federal officials, judges on the Fourth Circuit indicated in arguments Thursday that Bulger’s family probably isn’t entitled to sue.
In a 1971 case, Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court said federal officers can be sued for constitutional violations without explicit congressional authorization. But in recent years the court has narrowed that path, explicitly saying it will not allow such suits in contexts that haven’t been explicitly allowed in previous cases.
The Supreme Court has said “the issues have to be precisely a match” with a previous case, Judge Stephanie Thacker said at oral argument. The closest is a 1980 case involving a prisoner who died of an asthma attack.
A lower court judge in West Virginia ruled against Bulger’s nephew, citing “the sizable burden the government would face if this new category of prisoner litigation were authorized.” In court, an attorney for the Bureau of Prisons warned about allowing “fishing expeditions” in every prison death case. Another lawsuit is before the Fourth Circuit on Friday, involving the murder of four incarcerated people by others detained at a state prison in South Carolina.
McCamic argued that while Bulger was murdered, the transfer despite his medical needs were “part and parcel of how he ended up a dead inmate within hours of landing at Hazelton,” and that medical records might reveal more.
But he acknowledged that the suit might ultimately fail.
“The Supreme Court is basically choking Bivens to death,” McCamic said in court.
According to the Justice Department report, Bulger was previously held at a prison in Arizona with robust medical care, but that facility sought to have him transferred after he threatened a nurse. In the process, Bulger was downgraded without explanation from “severely impaired” and needing constant nursing care to “stable” and requiring only occasional checkups.
Bulger then went to Hazelton, where prosecutors say he was soon beaten to death by two inmates with a padlock stuffed inside a sock. Both had been involved in organized crime in Massachusetts.
That swift death might doom Bulger’s suit.
“It wasn’t the constellation of medical conditions that killed him,” Judge Albert Diaz said. “He didn’t even last a day there.”