‘Deliberate indifference’: The Supreme Court standard that requires prisoners to prove mindset to win Eighth Amendment claims

Over the past decade, Minnesota’s prisons have experienced officer assaults, lockdowns, and chronic staffing shortages. They have faced allegations of substandard medical care, inhumane living conditions, sexual abuse by guards, and retaliation against prison employees who have sounded the alarm. “It’s a very sick system,” one former lieutenant told Business Insider. Officers “have each other’s back,” she said, “even if that means lying.”

Within this troubled system, officers and prisoners said one facility has stood out: Minnesota Correctional Facility–Rush City.

A former Rush City therapist described it as one of the state’s most dangerous prisons, and a former corrections officer there recalled near-daily fights. “The staff up there are a bunch of cowboys,” a former Rush City lieutenant said. Officers there “go hands-on much quicker than they would at any other facility,” he added. “It was a culture that was just ingrained from the day it opened.”

The first lieutenant, who spent a year at Rush City, described the place as a “time bomb.”

The routine brutality earned Rush City a moniker: Gladiator School.

Despite the frequent violence, Dario Bonga, a longtime Rush City prisoner, said one assault, in particular, had stuck with him. It was the day a prisoner bashed in James Vandevender’s head.

Bonga was one of six prisoners and officers who said the attack was so brutal they still remembered it over a decade later.

A methodical attack

On June 8, 2012, Vandevender, then 25, had only a few months left on his yearlong sentence over assaulting someone during a fight. He and Bonga were working that day in the prison’s industry area, folding balloons, when Bonga was startled from his work by a loud thud. A prisoner had swung at Vandevender’s head with a four-by-four wooden post. Bonga watched in shock as the man, later identified as Mark Latimer, continued his methodical attack.

Surveillance footage obtained by BI corroborates Bonga’s account. It shows Latimer pick up an unsecured wooden board from a shelf in the woodworking area, drop it, and walk away. A few seconds later he’s back, and this time he quickly pulls out a wooden post. No officers are visible in the video; the unguarded woodshop wasn’t operating that day.

In the surveillance footage, Latimer saunters several hundred feet across the workshop with the four-by-four. No one tries to stop him — no corrections officer; no one from Minncor Industries, the corrections division that oversees prison labor — as he approaches Vandevender’s worktable, hoists the post over his shoulder, and begins to swing.

Only after the sixth blow — after Vandevender has collapsed onto the table, bleeding from his nose and mouth, and after Latimer has slipped into the crowd of panicked men — do officers come running.

Later, at the hospital, a doctor told Vandevender’s mother, Peggy Vandevender, that her son had a 20 to 30% chance of survival. He spent 45 days in a coma and woke up 40 pounds lighter. His face was numb, and he couldn’t speak or read. He thought he had a prison softball game that weekend, not processing that he had been in the hospital for a month and half.

Years later, the effects of Vandevender’s traumatic brain injury persist. Tests indicated a decline in cognitive function. Seizures have forced him to take epilepsy medication. Deep depression sent him in search of meth, which landed him at Rush City again.

When Vandevender arrived back, about four years later, Bonga thought he was seeing a ghost. No one thought he could have survived that beating.

‘Unacceptable’ risks

In 2018, Vandevender filed a lawsuit alleging that prison officials, by failing to protect him from the attack that day, had violated his Eighth Amendment rights to be free from “cruel and unusual punishments.” His attorneys argued that officials had been aware of the risks: For several months before the assault, officials had specifically instructed prisoners to pile and store the boards in an unsecured area that was accessible to prisoners, against prison policy. Vandevender’s complaint said that in the weeks before the attack, a prisoner had warned a guard that “the open pile of wood was a threat to the health and safety of all of the inmate population and could be used as a weapon against him and other inmates.” The prisoner said the guard told him it was none of his business and “not to worry about it.”

There was reason for concern: Vandevender’s complaint cited an incident in which, he said, one Rush City prisoner had assaulted another with the wooden handle of a pitchfork, “causing serious head injuries.” When, six years after Vandevender’s assault, a corrections officer named Joseph Gomm was killed by a prisoner wielding a sledgehammer taken from a work area at another Minnesota prison, Gomm’s family sued, alleging a “long-standing culture” in which Minncor’s revenue was prioritized over safety.

“Had there been more staff, had there been more cameras out there, absolutely Officer Gomm would not have been killed,” a former Rush City corrections officer told BI. “Same thing with Vandevender.”

Aaron Swanum, an information officer for the Minnesota Department of Corrections, said that among Minncor staff, only production supervisors are required to receive security training. At Rush City, he said, there is just one.

After reviewing the circumstances surrounding Vandevender’s attack for his case, Tim Gravette, a corrections consultant, concluded that Rush City staffers were negligent for failing to properly follow state correction policies, and that if they had, Latimer couldn’t have attacked Vandevender in the way he did. “I find the lack of work material accountability to be unacceptable practice,” he wrote.

Paul Schnell, Minnesota’s corrections commissioner, said that while he couldn’t comment on Vandevender’s case because it predated his tenure, “obviously we want to be in a place where we’re trying to take the steps to keep people safe.”

He said that since he became commissioner in 2019, he’d established an Office of Professional Accountability to address employee complaints, revived an independent ombudsman office to address internal grievances, started a body-camera pilot program, and, in the wake of Gomm’s murder, increased the number of staff and cameras in the industry area of the prison where he died. The department confirmed that there have been no such changes at Rush City.

Whether a prisoner wins or loses a lawsuit, Schnell said, “we’re certainly looking at our practices no matter what.”

He said that “everything’s incremental” when it comes to corrections reform.

“The challenge is that we were struggling to get our staffing complement up in general, so while we may have put more bodies in Minncor, we were shorter elsewhere,” he said. “It’s always give-and-take.”

A guardrail against cruelty

From its beginnings, the Eighth Amendment was understood as a guardrail against unabashed cruelty; by the mid-20th century it was also being used to push back against inhumane prison conditions, violence, and medical neglect. Then, in the 1980s and 1990s, as mass incarceration was on the rise, the Supreme Court issued a series of opinions that shifted the focus away from these underlying abuses to the question of prison officials’ intent.

In practice, these decisions made it difficult for prisoners to assert their constitutional rights.

One of those pivotal cases was 1994’s Farmer v. Brennan. The court unanimously ruled that prison officials were liable for Eighth Amendment violations only if they acted with “deliberate indifference” to a prisoner’s suffering. To meet this standard, Justice David Souter wrote, prisoners must show that officers were aware of and disregarded a serious risk of harm, saying this approach “comports best with the text of the Amendment.” Officials were now on the hook only if they had the knowledge that a particular harm would occur if they didn’t act.

While Souter said a court could infer awareness if the risk was obvious, the standard still required incarcerated plaintiffs to marshal proof of something ineffable — a prison official’s inner thoughts.

Business Insider’s analysis of a sample of nearly 1,500 Eighth Amendment cases — including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards — shows that mindset has become an extremely difficult standard to meet. For the vast majority of prisoners in BI’s database who filed their suits without counsel, proving mindset can be almost impossible — 85% of their cases decided under the deliberate indifference standard lost.

All of the remaining pro se cases settled, often for modest amounts.

“However obvious the circumstances, people may at times remain oblivious,” Sharon Dolovich, a law professor at UCLA, wrote in an anthology on the Eighth Amendment. “And when this is true of prison officials, no constitutional liability may lie, however ‘soul-chilling’ the conditions.”

Deference to officials, coupled with “the long and troubling history of unspeakable maltreatment against incarcerated people by the very actors charged with their protection,” she wrote, has created a landscape where “the power that prison officials have over incarcerated persons is sure to be abused.”

In BI’s sample, a few attorneys successfully proved mindset, sometimes by obtaining explicit circumstantial evidence, such as email exchanges introduced in the case of one Illinois prisoner that show prison healthcare providers floated the possibility of sending him to hospice care after his oncologist recommended treatment that would cost $15,000 a month. But such cases were rare.

Few sitting judges would comment to BI about the deliberate-indifference standard; some did not respond to interview requests, while others declined to comment. One who did, Lawrence Piersol, a federal judge in South Dakota, decided a case under the standard filed in 2020 by a prisoner named Jason Dunkelberger. While incarcerated at the South Dakota State Penitentiary, Dunkelberger said, the tips of his fingers were severed by a metal shear in the prison machine shop that he’d never been trained to use; in a deposition, he said he was told he’d be sent to solitary if he refused the assignment, given to him by a fellow prisoner put in charge by the machine shop’s supervisor. He said he waited 90 minutes before being sent to the hospital, where the fingers were amputated.

The South Dakota Department of Corrections did not respond to requests for comment.

In his lawsuit, Dunkelberger argued that prison staff had violated his constitutional rights by failing to keep him safe. Because the directive to use the machine had come from a prisoner, and not an officer, Piersol ruled that officials couldn’t be considered deliberately indifferent. Piersol said his decision spoke for itself, but he agreed to comment on Eighth Amendment cases generally.

“It’s difficult for a prisoner to succeed,” Piersol said. “But sometimes there are some decent settlements.”

Dunkelberger’s claim couldn’t meet that high bar. Vandevender’s didn’t either.

Donovan Frank, a federal judge with the District of Minnesota, granted the prison officials qualified immunity in the Vandevender case, finding that he had failed to prove they “were subjectively aware of a substantial risk posed by the wooden boards.” Even if they should have known that leaving them unsecured violated Rush City’s tool policy, Frank wrote, that “does not satisfy the subjective-culpability requirement.”

He dismissed the case before Vandevender could take discovery.

After Vandevender appealed, the 8th Circuit agreed with Frank, deciding that Vandevender was the victim of a surprise attack and that corrections officers therefore could not have violated his rights by failing to protect him. The court determined that the prior assault with a wooden pitchfork handle hadn’t signaled a “pervasive risk.”

When BI spoke with Mark Bradford, Vandevender’s attorney, two years after he lost the case, he seemed defeated.

“I’m not sure what more you could possibly do to show deliberate indifference,” he said. “It really is a troubling standard that the 8th Circuit has employed here.”

Appended to the appeals court’s judgment is a separate opinion, authored by Judge Jane Kelly, who wrote that she concurred only because she was bound by 8th Circuit precedent. “Our caselaw may set the bar too high for the typical inmate to sufficiently plead prison officials were deliberately indifferent to a substantial risk of serious harm in a case like this one.”

‘The easiest lie to tell’

The Eighth Amendment cases BI reviewed include claims of untreated cancers and heart disease, retaliatory beatings, sexual assaults, limb amputations, and prisoners wasting away in squalid cells littered with feces and dead flies. There was a New York teenager who said he was put in a vermin-infested cell in late 2021 where he was attacked by a bat and bitten by a poisonous spider, an Arizona prisoner who said in 2020 he was given only Tylenol to treat a broken jaw, and a Michigan man who filed a complaint in 2019 saying his eyesight deteriorated because prison doctors refused to conduct cataract surgery. Again and again, courts dismissed these cases, finding that prisoners had failed to meet the deliberate-indifference standard. The standard introduced three decades ago by the Supreme Court — and its interpretation by federal courts in the years since — has created formidable obstacles to accountability in this country’s prisons.

The Arizona Department of Corrections, Rehabilitation & Reentry did not comment on the broken-jaw claim but said that Gov. Katie Hobbs had appointed a new corrections director, Ryan Thornell, in January 2023 “to make needed changes to the correctional system” and that he was ensuring “high-quality, patient-centered care and wellness are becoming standard practice.” The New York and Michigan corrections departments did not respond to requests for comment.

Of the cases in BI’s sample, 1,361 were argued under the deliberate-indifference standard. Only 10 plaintiffs prevailed in court; another 164 cases settled without the prison admitting liability. All 10 of the successful plaintiffs were among the minority in the sample who were represented by counsel.

David Fathi, the director of the National Prison Project at the ACLU, told BI the standard has been “an enormous barrier to justice for incarcerated people.” If prisoners encounter conditions that are “inhumane, unhealthy, dangerous, or even lethal,” he argued, “that should be enough to violate the Eighth Amendment — you shouldn’t have to go looking for someone who was thinking bad thoughts.”

David Shapiro, the executive director of the Chicago Lawyers’ Committee for Civil Rights, has litigated dozens of Eighth Amendment cases on behalf of prisoners.

“I didn’t know this person was going to get attacked by another incarcerated person,” he said of defenses under the deliberate-indifference standard. “I didn’t know that this person was having chest pains because they were experiencing a heart attack.”

As long as prison officials assert that they didn’t know about the risk, he said, a federal court will rarely find an Eighth Amendment violation.

“What is the easiest lie to tell?” he said. “I didn’t know.”

‘A dark and evil world’

For generations, the federal courts took a mostly hands-off approach to conditions in America’s prisons. That changed in the wake of the Civil Rights Movement, as judges began to issue Eighth Amendment rulings that secured key rights for prisoners.

In 1970, for instance, a federal judge put every Arkansas prison under court order, calling the state system “a dark and evil world completely alien to the free world.” Six years later, another federal judge found prisons in Alabama “wholly unfit for human habitation” in violation of the Constitution.

About this time, a Texas prisoner named J.W. Gamble sued his facility over inadequate medical care, arguing that officers had failed to treat his intense pain after a 600-pound cotton bale fell on him during a work assignment. While the Supreme Court found that Gamble’s constitutional rights hadn’t been violated, the 1976 decision, written by Thurgood Marshall, established that prisoners have a right to medical care under the Eighth Amendment.

“Deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,'” Marshall wrote. “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”

It was a consequential decision. It was also, fatefully, the court’s introduction of the phrase “deliberate indifference.”

“There it sat,” John Boston, the former director of the Prisoners’ Rights Project of the New York City Legal Aid Society, said, “extremely vulnerable to a more conservative court coming along and trying to define it downward in ways disadvantageous to prisoners.”

That shift occurred quickly. As President Ronald Reagan ramped up the war on drugs, legislators from both parties, committed to a tough-on-crime agenda, began to pass a raft of criminal-justice measures. The impact of these policies is now well known. In less than 30 years the country’s penal population grew sixfold to a peak of more than 2 million, leaving the US incarcerating more people than any other country.

The critical Farmer v. Brennan case came when Dee Farmer, a transgender woman, filed a claim saying federal prison officials had failed to protect her from sexual assault. In an interview, she described how, after being raped by another prisoner at knifepoint, she was sent to segregation for over a year.

When Farmer won her case before the Supreme Court, it was hailed as a major victory for transgender rights. The decision also cemented the current deliberate-indifference standard.

Farmer’s lead attorney, the ACLU’s foremost prison expert, Elizabeth Alexander, argued that the standard should hinge on what officials had the professional responsibility to know. The solicitor general, Drew Days III, disagreed, contending that officials should be held liable only for risks they were aware of. “Petitioner’s ‘should have known’ approach ignores the ‘deliberateness’ requirement of the ‘deliberate indifference’ standard,” he wrote in his brief.

The Supreme Court agreed with Days, finding that officials were liable only if they personally knew of and disregarded the risk, regardless of the gravity of the harm to the prisoner.

Some issued warnings at the time. Michelle Alexander, the noted civil-rights lawyer and author, who was then a clerk for Justice Harry Blackmun, suggested that the majority opinion “would allow a prison official to argue to the jury that although a particular risk of harm was plainly obvious, and a reasonable prison official would have been aware of it, he wasn’t.”

In his own concurring opinion, Blackmun described the new standard as fundamentally misguided. “A punishment is simply no less cruel or unusual because its harm is unintended,” he wrote.

Alexander, in a recent email, described the decision as one of many during that period that created what she called “unconscionable obstacles to meaningful relief for people ensnared by our criminal injustice system.”

Vandevender is one of hundreds of prisoners in BI’s sample for whom those obstacles were insurmountable. Prisons are inherently dangerous places, the 8th Circuit concluded in his case, and “inmates bent on assaulting other inmates will use even the most harmless objects as weapons.”

Judge James Loken, who authored the majority opinion, wrote that, for Vandevender, “the outcome was tragic, and an assault with this weapon was, in hindsight, no doubt avoidable.”

Still, he concluded by quoting the Farmer decision, writing, “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of Eighth Amendment punishment.”

A fiancée’s warning

Six years after Latimer’s assault on Vandevender, Rush City experienced another violent attack. This time, officials were repeatedly warned of the risk.

Trina Murray was at home in bed one night when she got the call. She was confused; her daughter never phoned that late. She listened with a rising panic as she learned that her only son, David Hodges, had been assaulted at Rush City.

Hodges is a large man, tall and broad-shouldered, with the word “family” inked onto his right forearm. But Murray still worried about his exposure to violence when, in 2011, he was sent to prison for sexual assault. She knew what Minnesota’s prisons could be like, having worked in two of them.

She tells one story from when she was an officer at Minnesota Correctional Facility–Lino Lakes, a medium-security prison outside Minneapolis, in the 1990s. There, in her telling, she witnessed a group of officers placing bets on how many prisoners they could send to solitary confinement. When she reported the behavior, she became the target of a campaign of retaliation. The officers, all men, followed her to her car. They called her the N-word, she said, and told her to go back to Africa. Later someone threw a rock through the window of her home. Eventually, she quit.

After the call that evening in September 2018, she scrambled to learn what had happened to her son. In incident and investigative reports, Hodges claimed that another prisoner, Courtney Osgood, had entered his cell with a shank, angry that Hodges had refused to pay off a debt owed by Hodges’ cellmate. Osgood grabbed Hodges’ locs, ripping some out, and attempted to stab him. Hodges, who had been making coffee on a small hotplate, threw the boiling water at Osgood, who raced out of the cell.

Prison officials weren’t aware of the altercation, according to an incident report, until Hodges’ then-fiancée called the prison, concerned about his safety. Once alerted, Hodges’ subsequent civil complaint said, they sentenced Osgood to 20 days in segregation — and gave twice that to Hodges. Gene Olson, a prison lieutenant who investigated the incident, said in a deposition that he couldn’t prove Hodges’ account of the attempted stabbing because officials couldn’t track down the shank. Osgood also denied Hodges’ account in a message to BI, calling it a “fabricated narrative.”

In segregation for about six weeks, locked in a tiny cell, the lights on 18 hours a day, Hodges said, he obsessed about one thing: what was waiting for him when he got out.

“It’s prison politics 101, if I assault you and I hurt you real bad, you’re looking to get your lick back,” he said. “Needless to say, I’m a big guy, and I know this time he was coming with help.”

Hodges begged officers to move him to a different unit, verbally and in writing. Murray, his mother, along with his fiancée, his sister, and his grandmother, called and wrote over a period of six weeks to the prison and to state corrections headquarters, imploring officials to take action because they feared for his life. “What exactly must he do to get a transfer to another facility for his safety?” his fiancée asked in a late-October email to the warden at the time, Jeffrey Titus. “Why must something really bad happen before he is taken seriously.”

Every prison in Minnesota has an incompatibility-review committee composed of prison staff that meets to decide whether particular prisoners pose a risk to each other and need to be separated. Their deliberations, a former corrections staffer at Rush City told BI, are usually documented in great detail. Rush City’s panel, which included Olson, had met in late September 2018 and decided that Hodges and Osgood didn’t need to be separated. Ashlee Berts, a corrections program director who oversaw the committee, said in a deposition two years later that no notes were kept to explain their rationale. She said she didn’t remember who was on the committee, whether it had convened in person or over email, and what was discussed. Olson said under oath that, despite the pleas from Hodges and his family, he didn’t believe Hodges faced any threats.

Schnell, the corrections commissioner, said he expected his staffers to fully document incompatibility reviews. “It’s news to me that there wasn’t that information,” he said of Berts’ claim that no records were kept. “We want to be in a position where we can say that we have documentation that we did that and the basis for it.”

In early November, just hours after Hodges was released from segregation, Osgood and a fellow prisoner assaulted him in the living unit, throwing a mixture of hot water and capsaicin, a chili-pepper extract, in his face. Surveillance video shows Hodges trying to escape as the two men come toward him. They land a series of punches as Hodges waves his arms in a futile attempt to make contact with his assailants. His eyes were blinded and burning, he told BI, saying it felt like an eternity before officers arrived. Medical records show he suffered a nasal fracture, second-degree burns, and an eye injury.

Ten days after the assault, the committee made a new determination: Hodges and Osgood were incompatible, and Hodges’ transfer request was granted.

Almost five years later, Hodges discussed the incident while sitting in an empty visitors’ room at Minnesota Correctional Facility–Moose Lake, a state hospital turned prison an hour north of Rush City. The window blinds concealed a barbed-wire fence just outside. He wears wire-framed glasses now, to help with the blurred vision he’s lived with since the attack. “I had a lot of sleepless nights,” he said. “Every time I think about the situation, I’ll have flashbacks.” In a July 2019 incident report, an officer described finding him crying in the midst of an anxiety attack.

Like Vandevender before him, Hodges filed a lawsuit alleging that prison officials at Rush City failed to keep him safe.

With Vandevender, the court’s ruling hinged on the fact that he’d experienced a surprise attack. But the attack on Hodges came after a campaign of urgent warnings that he feared for his life.

The defendants argued that launching the incompatibility review was itself proof they hadn’t been deliberately indifferent to Hodges’ welfare. A federal judge, Wilhelmina Wright, accepted the officers’ claim that they had determined in good faith that Osgood no longer posed a threat.

“The fact that this conclusion proved to be incorrect does not demonstrate that Defendants recklessly or intentionally ignored an obvious risk,” Wright wrote in deciding in the officers’ favor. The 8th Circuit — the same appeals court that decided Vandevender’s case — agreed with Wright on appeal, finding that the officials had simply “predicted incorrectly.” Hodges’ claim failed.

A modern-day ‘Lord of the Flies’

The sample BI analyzed is full of cases in which officers failed to act on warnings that prisoners were at risk.

Marc Bakambia, another Rush City prisoner, said that after a group of prisoners beat him up and threw him over a railing, he was placed in their same unit and assaulted again, leaving him with bone fractures and a traumatic brain injury. Craig Shipp claimed he had sought orthotic shoes for his diabetes and degenerative joint disorder but Arkansas prison and medical staff denied his repeated requests; he said he eventually developed an infection severe enough to result in the amputation of his right foot. Mitchell Marbury claimed he requested a transfer after a friend warned him that a fellow prisoner was out to get him; he said an Alabama corrections officer laughed and told him to get a shank. Less than a week later, he said, he was stabbed in the facility’s day room.

The Arkansas and Alabama corrections departments did not respond to requests for comment; the Minnesota corrections department did not comment on the Bakambia case.

“Marbury’s argument is essentially that every prisoner who tells prison officials about an unspecified threat from an unspecified inmate without more is entitled to protective custody or a transfer,” 11th Circuit judges wrote in the majority opinion. “Our caselaw establishes a higher standard for deliberate indifference.”

“The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies,” Judge Robin Rosenbaum wrote in a scathing dissent. By not holding officials responsible, she said, “the Majority Opinion condones this behavior and ensures it will occur again.”

In reviewing Hodges’ appeal, Kelly, the 8th Circuit judge, wrote her own opinion, as she had in the Vandevender case. She disagreed with how her colleagues assessed the question of mindset, writing that a committee finding alone should not release prison officials from liability. She also noted that “the absence of documentation regarding prison decisions or prison officials’ inability to remember events central to their decision-making process may be relevant,” raising the question of whether those gaps could have been deliberate.

Many corrections officers are made aware of the mindset standard. BI requested officer training materials from every state prison system and obtained them from 37 — most of which explicitly trained on deliberate indifference. Taken together, the documents indicate that the standard, as interpreted by federal courts, could encourage prison staff to remain incurious about what goes on in their facilities.

As Oregon’s training materials say, “basically, deliberate indifference is a cognitive choice to do what you did.”

Fathi, of the ACLU, reviewed a sample of the training materials BI obtained and said the guidance might lead officers “to act in ways that violate people’s rights and that harm people very severely.”

Many of the materials, he said, appear to train officers to treat prisoner complaints with suspicion. In a 2021 Mississippi slide deck, for instance, corrections officials were told prisoners try to compromise their integrity “as entertainment and for their amusement” or “to facilitate an escape, assault, rape or murder.” A slide in a 2018 Utah training PowerPoint displayed the header “inmates do crazy things… then sue YOU for it.”

“It’s good to train them on the law,” Fathi said. “But they should also make clear that we expect more than the absolute minimum that’s required to avoid violating the Constitution.”

Memory issues

On a muggy June morning in 2023, as the sun was just beginning to peak out in Euless, Texas, James Vandevender was already up in his father’s modest one-story house in the Dallas suburb, pouring himself a cup of coffee. He had moved there from Minnesota, after his last prison stint, looking for a fresh start.

He was dressed in khakis for his job installing high-end appliances. A tattoo of his son’s name showed below his shirt sleeve, and a scar cut across his cropped brown hair.

He moved through the same routine as every morning: packing his lunchbox, scarfing down breakfast, and swallowing an array of anti-seizure pills and antidepressants.

Still, that day, he forgot to put the ice pack in his lunchbox and had to redo it. When he headed outside to toss out the trash, he couldn’t remember where he stowed the garbage bins. By the time he and his coworkers gassed up and headed off to the first house, Vandevender had misplaced his phone.

As they wrapped up their first job and headed back to their truck, Vandevender realized he’d left his tool bag inside.

At the next house, the men were tasked with installing a mounted range hood they’d never encountered before. It was a tricky job, Vandevender said. By late afternoon, visibly frustrated, he called the installation a “fucking joke.”

His coworker Mike, in a black baseball cap to protect from the sweltering sun, took a breather in the driveway, away from the tension inside. “He’s been having memory issues all day long. It’s an everyday thing,” he said of Vandevender. “That’s when he gets frustrated.”

Ashley Christen, the mother of Vandevender’s 20-year-old son, said that when the two of them were growing up in rural Minnesota, Vandevender was smart and quick-witted, known for delivering the best one-liners. As a kid, he loved to hunt and spend time on his grandfather’s dairy farm; his mother, Peggy, said he was fun and lovable, always offering to help out around the house.

But since the assault, they both said, he’s struggled to communicate. He’s forgetful, irritable, and prone to snap. Peggy said he relied on scribbled notes to get through the day.

“It shouldn’t have happened,” she said. “It was because of their lack of watching the people,” she added. “It was due to their negligence.”

On a recent fall afternoon, 12 years after Latimer bludgeoned him with the wooden post, Vandevender sat down with a friend to watch surveillance footage of the attack for the first time. He doesn’t remember anything from that day; his first recollection is waking up weeks later, confused and shackled, in a hospital bed flanked by corrections officers.

“I just want to make sure you’re mentally prepared to see it,” the friend told him, before pressing play. “I want to,” Vandevender said.

When the video finished, there was a long silence.

Eventually, he started talking. He said the footage took him back to his time in prison — the smell, the barbed wire, the disrespect. He said that he noticed Latimer picked up the post from an unauthorized part of the industry area, where prisoners weren’t allowed, and that any unused lumber should have been disposed of. He said he felt the weight of what it must have been like for his mother, when she got the call every parent of an incarcerated child dreads.

When asked about the life he could have had, the one where he got out of prison at age 25 without the burdens of a traumatic brain injury, he struggled to respond.

“I don’t want to talk about it,” he said.