A DISCUSSION OF LAW AND JOURNALISM

Tennessee Ink – A Felon’s Plea to Have His Swastika Tattoo Removed

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By Paul Irlando

A Tennessee man is regretting his decision to get ink.  According to a Forward.com article, Daniel Cowart, who in March pled guilty to eight federal charges in U.S. District Court, including a plot to assassinate then-presidential candidate Barack Obama, is requesting to have certain tattoos removed before heading to federal prison.

Why does Mr. Cowart want these tattoos removed?  According to the Huffington Post , he has been labeled a “white supremacist skinhead.”  He brandishes a swastika tattoo on his right shoulder and iron cross on his chest (see images here and here).  District Court Judge Daniel Breen put Mr. Cowart’s June motion requesting the tattoo removal under seal, so we can’t be sure, but it is presumed that Mr. Cowart is concerned with “unwanted attention” from other inmates.

Do individuals about to enter the correctional system have a legal right to have their tattoos removed to protect their safety?  The Forward.com article reported that the U.S. Marshals Service, through the government’s attorney, “cannily” played down Mr. Cowart’s tattoo-alteration request as “cosmetic surgery,” ignoring the potentially serious consequences of brandishing such ink in a federal prison.  But the article failed to state whether Cowart, indeed, is protected by state or federal law, or by either the Tennessee or Federal Constitution.

In a related article last year, LASIS writer Drew Smith reported a 2009 Florida case where a judge allowed murder defendant John Ditullio to have his tattoos, including a six inch swastika, cosmetically covered during trial.  The State bore the cost of the procedure with the judge citing fairness as the reason behind the decision.  Mr. Ditullio, like all criminal defendants, is guaranteed a fair trial under the Fifth and Fourteenth Amendments to the U.S. Constitution.  The judge determined that Mr. Ditullio’s constitutional right to a fair trial may be violated if he were not allowed to cover up the prejudicial tattoos.

But unlike Mr. Ditullio, Mr. Cowart pled guilty to the charges against him and never appeared in front of a jury.  He is not requesting the tattoos be removed because his right to a fair trial would be jeopardized, but rather he’s asserting that without removal his life may be in danger.

The Eighth Amendment to the U.S. Constitution affords certain rights to individuals including the right to be protected from cruel and unusual punishment.  Prisoners often bring Eighth Amendment claims before courts claiming that prison conditions subject prisoners to cruel and unusual punishment.  Mr. Cowart may be arguing that by forcing him to go to prison without altering or removing his tattoos, the government would be imposing cruel and unusual punishment in violation of the Eighth Amendment.  However, Mr. Cowart will have difficulty winning on this claim.

Early Eighth Amendment cases (like this case from 1878) dealt primarily with death sentences, holding only that torture and unnecessary cruelty were forbidden by the Eighth Amendment.  However, what constitutes cruel and unusual punishment under the Amendment has evolved over time. In Estelle v. Gamble, decided in 1976, the Supreme Court extended Eighth Amendment protection to cases in which State officials showed “deliberate indifference” to a prisoner’s “serious medical need.”  A State official is said to be deliberately indifferent if he knows of an excessive risk to inmate health and safety and nonetheless either knowingly or recklessly disregards it.

So, with this relaxed standard, can Mr. Cowart show that State officials are acting with deliberate indifference?  Probably not.  As the Forward.com article points out, the Federal Bureau of Prisons takes tattoos into account when assigning inmates to their cells.  Also, Mr. Cowart would have to show that tattoo removal is a “serious medical need.”  But, Mr. Cowart doesn’t appear to be arguing that his tattoos need to be removed because the tattoos themselves (because of the ink used) are life threatening.  He’s arguing that brandishing such tattoos may cause him problems in prison.  This harm appears to be too speculative to be considered a “serious medical need”, and likely won’t warrant relief under an Eighth Amendment claim.

While Cowart may not have a valid Constitutional claim, a sheriff in Utah wants to see a tattoo removal program implemented in his prison. And with good reason.  While taxpayers would rightfully complain about paying for Cowart’s tattoo removal, in the case of rehabilitated prisoners, the tattoo removal process has positive effects both for the individual and society.  Ex-gang members can literally shed the skin of their criminal past.  And with fewer gang members comes less crime.

Were Cowart to serve his time, reflect on the choices he has made, and rid himself of the racist hate he exhibited in the past, taxpayers might be more willing to accept that their tax dollars are going to prisoner tattoo removal.

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