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Wednesday, Apr. 24, 2002

Last week, the Supreme Court heard arguments in Hope v. Pelzer. It is an important case that confronts the issue of what constitutes "cruel and unusual punishment," in violation of the Eighth Amendment. It also considers the equally significant question of when prison guards should be on notice that the punishment they are inflicting violates the Eighth Amendment.

The case arose when Larry Hope, a prisoner, was working on a chain gang in Alabama and apparently became disruptive. As punishment for his "disruptive behavior," Hope was handcuffed to a metal post for seven hours with his shirt removed. He received no bathroom breaks and only one or two opportunities to drink water.

In addition, guards at one point brought him some water, but ultimately poured it on the ground near his feet rather than permitting him to drink. Throughout the incident, the guards' conduct seemed primarily if not exclusively intended to torment the prisoner.

As I explain below, this case is peculiar in a number of ways. Moreover, its peculiarities, taken together, serve to highlight a single truth: The courts - including the Supreme Court - are in denial regarding the conditions inmates face in our prisons.

The "Cruel and Unusual Punishment" Issue

The first issue the case raised was whether the treatment Hope endured violated the Eighth Amendment's ban on cruel and unusual punishments. In a unanimous opinion, the U.S. Court of Appeals for the Eleventh Circuit held that it did, although it ultimately ruled against Hope for reasons discussed below.

The Supreme Court is likely to agree with the Eighth Amendment finding. Indeed, some of the Justices expressed outright revulsion at oral argument at the spectacle of such gratuitous cruelty toward prisoners.

Several of the Justices appeared to feel genuine empathy for Larry Hope's plight. (Only Justice Scalia seemed unmoved.) Justice O'Connor, for instance, incredulously asked the Alabama Solicitor General: "Your position is . . . the state could legitimately keep him hanging to this rail, no matter how hot it is, without water? . . . . "Your position is that, in the hot sun, without water is fine?"

The Alabama Solicitor General described such tactics as "part of prison life." And fifteen other states evidently agreed - filing amicus briefs in support of Alabama's position. They apparently do not share the Justices' view that such conduct is (or ought to be considered) anomalous and deviant. The Justices nonetheless are likely to take the position that this conduct violates the Eighth Amendment.

The Dangerous Power and Psychology of Guarding Prisoners

While the Justices would be correct to hold that the conduct in this case violated the Eighth Amendment, they would be wrong to conclude that it is rare. From the Justices' reactions at oral argument, one might get the impression that gratuitous cruelty by guards against prisoners deviates from the norm. But this impression would be mistaken.

While Alabama is wrong to urge that torture such as that which Hope suffered should be accepted as routine, it often is - and the Justices should recognize that instances of the type of conduct that sickens them are legion.

Indeed, the power that guards necessarily exercise over prisoners is conducive to such sadistic behavior - as Professor Philip G. Zimbardo's 1971 experiment at Stanford University demonstrated.

Zimbardo's research was designed to examine the effect of assigning people the roles of prison guards and inmates. For $15 per day, participants - a group of healthy, intelligent, middle-class male volunteers - agreed to be placed in a prison-like setting in the basement of the Stanford Psychology Department building for two weeks, and assigned the roles of either guards or prisoners. After six days, a third of the "guards" had become so cruel and sadistic with their "prisoners" - encouraging, among other things, inter-prisoner aggression - that Dr. Zimbardo had to put a stop to the experiment.

Because of psychological pre-screening and random role assignment in the Zimbardo study, there was nothing special about the "guards" that would explain their willingness to hurt people who had only days before been perfect strangers to them. Now substitute violent, convicted criminals for the volunteer prisoners, and underpaid, exhausted guards for experimental guards, and you have a recipe for disaster.

Indeed, given guards' ability to supervise and discipline prisoners if they so choose, the amount of prison rape that takes place is difficult to explain without a large dose of guards' willful failure to intervene.

The Supreme Court has held that guards violate the Eighth Amendment when they show deliberate indifference to rape within prison. But one gets the impression from reading their opinion that the Justices would be "shocked" to learn that rape goes on quite regularly within prison walls.

Shock and naivete about the conditions under which prisoners live, of course, may be preferable to the cynical indifference that some judges apparently feel. Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit, for example, wrote an opinion refusing to find guards responsible for prison rape. Commenting that "prisons are dangerous places," and acknowledging that guards "know the risk [of rape] unless they are unbelievably dense," Easterbrook still asserted that guards are powerless to do anything about the risk.

The Supreme Court has done well to avoid Easterbrook's fatalism about prison abuses. Yet the Court should also understand, as he does, that such abuses are widespread. Indeed, a prison can often become, in effect, a standing Eighth Amendment violation - as abuses are institutionalized and repeated.

The "Qualified Immunity" Issue

Even if the Supreme Court holds that the treatment Hope received violated the Eighth Amendment, that finding will not itself resolve the case. There is a second question the Court must answer, too: Did the status of such conduct as a violation constitute clearly established law of which the prison guards should therefore have been on notice?

If so, then the guards lack "qualified immunity" against claims for money damages based on the constitutional violation - and Hope's suit against them can proceed.

"Qualified immunity" is the limited but not absolute insulation from damages suits that various public officials (including prison guards) enjoy for their conduct that does not violate "clearly established law" but is subsequently deemed unconstitutional. The idea behind qualified immunity is that when the law is unsettled, it is unfair to hold public officers personally liable for acting in a manner that conforms to a plausible interpretation of the precedents. They should not be punished, in other words, for acting with a reasonable but ultimately mistaken belief that they are complying with the law.

The Eleventh Circuit, while ruling in favor of Hope on his "cruel and unusual punishments" claim, ruled against him on this second, qualified immunity issue. What the Supreme Court will do is uncertain. Hope can take some comfort, however, in the fact that the U.S. Solicitor General's office has sided with him - and against the State of Alabama - before the Court.

The U.S. has argued that the guards were clearly acting in violation of the Constitution. Their behavior, the U.S. contends, was sufficiently similar to Eighth Amendment violations condemned in decided case law, that the guards should have been on notice.

Let us hope that the Court agrees with the U.S. - and not with the Eleventh Circuit. It is absurd to hold, as the Eleventh Circuit did, that the guards' behavior, though cruel and unusual punishment, did not violate "clearly established" law.

It should be obvious that psychologically and physically tormenting a prisoner is illegal in the United States. And it is not only wrong, but ridiculous, to claim that a guard might - in a good faith and sincere effort to conform to governing law protecting prisoners from abuse - handcuff a man to a hitching post, take off his shirt, deprive him of bathroom breaks and all but one or two drinks of water for seven hours, and pour water at the thirsty man's feet.

Such behavior is cruel and wrongful according not only to the law, but to common sense. One hardly needs to be schooled in the subtleties of prisoners' rights jurisprudence to see that.

The Paradox of Combining Shock with a Belief That the Law Is Unclear

There is something paradoxical about courts that are oblivious to prison guards' abuses (and find them shocking and anomalous), but simultaneously believe that guards could not have known that such gross departures would violate constitutional norms.

Perhaps the real problem - and one that explains the paradox - is that most judges would rather not think about prison and the conditions that prevail there, either to acknowledge how horrible they are, or to articulate the line between what is acceptable and what is unconstitutional.

After all, it is easier to believe abuses are rare, than to admit the contrary. And it is easier to believe that guards are naive about what the Constitution forbids as cruel, than to believe that they are sadistic. And even if these two beliefs naturally collide, it is easier to ignore the conflict than to resolve it.

Finally, for many judges and perhaps for most of the free public, it is easier just to pretend that prisoners have gone far away and sit quietly contemplating and regretting their sins, rather than considering the sins that we as a society commit against them.

Sherry F. Colb is a visiting professor at University of Pennsylvania and a professor at Rutgers Law School.

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