Cruel Punishment Is Not Unusual for Clarence Thomas

by | March 12, 2010

Veteran New York Times Supreme Court reporter Linda Greenhouse has an opinion piece today on Clarence Thomas’s “silent but sure” stance on prisons, and “specifically the meaning of the Eighth Amendment’s prohibition against ‘cruel and unusual punishment.’” Thomas’s position is highly relevant to the issue of solitary confinement, since critics of long-term lockdown argue that it violates the Eighth Amendment. But Thomas does not believe that any kind of prisoner abuse qualifies as “cruel and unusual.” Greenhouse writes:  

In February 1992, the Supreme Court ruled in Hudson v. McMillian that a prisoner need not have suffered a “significant injury” in order to pursue a lawsuit against prison officials for the use of excessive force. Keith Hudson, the Louisiana inmate who brought that case, had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment.  

Mr. Hudson’s appeal to the Supreme Court was supported by the George H.W. Bush administration, and John G. Roberts Jr., then a deputy solicitor general, argued on the inmate’s behalf. In an opinion by Justice Sandra Day O’Connor, the court reinstated the lawsuit. What mattered in such a situation, the court held, was not the extent of the injury, but the nature of the force that was applied. “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated,” Justice O’Connor wrote.  

Justice Thomas dissented. He had been on the court for four months. During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.  

In his dissenting opinion in the Hudson case — which Justice Antonin Scalia joined, making the vote 7 to 2 — the new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”  

Last month, Thomas demonstrated his grim “consistency” on this subject when the court considered “another excessive-force case, a prisoner’s appeal that was so clearly meritorious that the justices ruled in the inmate’s favor without bothering to call for briefs or hear argument.” This time, a North Carolina state prisoner claimed that “a guard had responded to his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off.” A lower court found that the prisoners’ injuries weren’t all that bad, and dismissed the case.  

Because of the precedent set by the Hudson v. McMillian decision, Greenhouse writes, “The vote was 9 to 0, but it was not a happy 9 to 0. Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. ‘I continue to believe that Hudson was wrongly decided,’ he said.” Thomas also noted that “no party to this case asks us to overrule Hudson”–suggesting that he would welcome the opportunity to do so. Greenhouse continues:  

Justice Thomas has been trying and failing repeatedly to get someone to bring the court a vehicle for revisiting its prisoners’-rights jurisprudence. Dissenting from a 2002 decision, Hope v. Pelzer, he objected to reinstating a lawsuit brought by an Alabama inmate who had been handcuffed to a hitching post and left to stand shirtless in the sun for seven hours without water or bathroom breaks. “I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case,” Justice Thomas wrote hopefully.  

Greenhouse writes that there have been “no takers yet.” This is not surprising, since so many potential prisoner abuse claims are now effectively barred from the courts under the Prison Litigation Reform Act. As described by the SAVE Coalition, which advocates for a change to the PLRA:  

In the past decade, individuals who have been physically and sexually abused, subjected to life-threatening medical mistreatment, denied the ability to practice their religion, and severely mistreated as children have been denied access to relief from federal courts. Why? These individuals were in prison when these violations occurred and the Prison Litigation Reform Act (PLRA) imposed insurmountable obstacles to judicial relief. In 1996, Congress enacted the PLRA, which was intended to stem frivolous lawsuits by prisoners, but too often denies justice to victims of rape, assault, religious restrictions, and other rights violations.  

Because the PLRA demands that prisoners must suffer serious “physical injury” in order to sue in federal court, solitary confinement does not qualify–nor do a host of other abuses that cause physical and psychological suffering, but not “physical injury” in the eyes of the law. The law also demands that prisoners jump through a series of nearly impossible procedural hoops before their cases can be heard in even the lowest federal court, much less the Supreme Court.  

Although she does not reference the PLRA, Greenhouse writes that “it could be a long wait” before the Supreme Court gets another Eighth Amendment case–but if it does, she says, “Justice Thomas will be ready.”  


Photo from flickr by wwarby


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  • Alan

    Luckily not everyone agrees!

    Annals of Human Rights

    The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?
    by Atul Gawande

    In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional. Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed “serious objections” to solitary confinement:

    A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover suffcient mental activity to be of any subsequent service to the community….
    This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide. The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it. This is the dark side of American exceptionalism. With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

    Read more of this article at:

    In 2000, and again in 2006, the United Nations Committee Against Torture condemned the kind of isolation imposed by the U.S. government in federal, state and county-run supermax prisons, calling it “extremely harsh.” “The Committee is concerned about the prolonged isolation periods detainees are subjected to,” they stated, “the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”

    The following quotes can be found at:

    Tom Coburn (R-OK), Chair of the Senate Judiciary Subcommittee on Corrections and Rehabilitation, issued a similar warning before a Senate hearing in 2006. “The experiences inmates have in prison — whether violent or redemptive — do not stay within prison walls, but spill over into the rest of society,” he said. “Federal, state, and local governments must address the problems faced by their respective institutions and develop tangible and attainable solutions.”

    John McCain reportedly said of his two years of isolation as a prisoner of war in Vietnam, “It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”

    “Mental illness has been criminalized in our country over the last 30 years,” U.S. Sen. Dick Durbin, D-Springfield said. “By allowing our prisons and jails to become a primary provider of mental health services, we have taken a step backward in the effort to protect the human rights of people with mental illness.”

    “We’re not trying to close Tamms,” said State Rep. Rep. Julie Hamos, the suburban Chicago Democrat behind the legislative push to change the prison, including allowing an inmate to earn increasingly less-isolated conditions for good behavior. “To leave them in that setting 10 years or longer is inhumane, in my estimate, and a human rights violation. It just cannot be condoned.”

    “Courts must give substantial deference to prison management decisions” against the “brutal reality of prison gangs,” Kennedy added.
    Still, the justices expressed some concerns about the harsh conditions, with Kennedy writing that inmates “are deprived of almost any environmental or sensory stimuli and of almost all human contact.” Lights were always kept on in the cells, he said, and the treatment was more harsh than that of death row inmates.
    The court did not address the issue of whether the detentions are unconstitutionally cruel.

    Amnesty International recognizes that it may sometimes be necessary to segregate prisoners for disciplinary or security purposes. However, it is concerned that the current conditions at Tamms, taken cumulatively and applied over a prolonged period, are incompatible with the USA’s obligations to provide humane treatment for all prisoners.

    The USA has ratified the International Covenant on Civil and Political Rights, Article 10 of which requires that “all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person”. The Human Rights Committee (the treaty monitoring body) has further emphasized that the absolute prohibition of torture or cruel inhuman or degrading treatment under international law “relates not only to acts that cause physical pain but also to acts that cause mental suffering” and has stated that prolonged solitary confinement may amount to torture or other ill-treatment. Both the Human Rights Committee and the United Nations (UN) Committee against Torture have criticized the excessively harsh conditions of isolation in some US supermax facilities.

    Amnesty International believes that Bill HB2633, if enacted, would be an important step to providing fairer standards, accountability and oversight of the operation of Tamms. The organization is also urging the authorities to alleviate conditions for all prisoners who remain at the facility, including improving the exercise facilities, reviewing visitation conditions and providing some opportunity to participate in rehabilitation programs.

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