THE HITCHING POST CASE:
The Supreme Court Weighs In On When Government Employees Should Know Their Actions Count As "Cruel And Unusual Punishment"

Near the end of this year's term, the Supreme Court issued a 6-3 decision in the case of Hope v. Pelzer. The opinion interpreted the Eighth Amendment's prohibition on "cruel and unusual" punishments.

Specifically, the Court held that tying a prisoner to a "hitching post" for hours in the hot sun, without bathroom or water breaks, and taunting him by pouring water out in front of him, violated the Eighth Amendment. The Court also held that a reasonable person should have known that this conduct violated the Eighth Amendment, and thus that the prison guards alleged to have done this to the prisoner could be held liable.

This decision may sound like a no-brainer. Few would disagree that the allegations describe ethically reprehensible conduct - and a reasonable person certainly would have seen this.

But the decision is actually more problematic than it seems.

Would a Reasonable Person Have Known the Conduct Was A Law Violation?

For the guards to be liable, it was not enough that their actions violated the prisoner's Eighth Amendment rights. Their actions also had to violate clearly established Eighth Amendment rights of which a reasonable person would have known.

The idea behind these additional requirements is that a defendant must have fair notice beforehand that his conduct will be deemed unlawful. Unwitting or unknowing constitutional violations should not open up the violators to huge damage awards.

Its opinion - authored by Justice Stevens - held that "the Eighth Amendment violation is obvious," since the guard's alleged conduct amounted to the "gratuitous infliction of wanton and unnecessary pain." Such conduct was prohibited by courts' precedent, they concluded. It was also prohibited by simple common sense: there was "obvious cruelty inherent in this practice."

Led by Thomas, the dissenters conceded that some practices are patent Eighth Amendment violations that "obviously run afoul of the law," whether judicial precedents make that clear or not. But they did not find the hitching post allegations to describe such a practice. Instead, they thought they described conduct that fell on "the hazy border between excessive and acceptable force."

In short, the dissenters thought common sense did not provide the guards with sufficient notice that such conduct was illegal. Nor did they think court precedents provided the guards with such notice.

The dissenters pointed, for example, to five previous Alabama hitching post cases in which the prisoners had all lost in court, and to a directive that they thought the guards could have interpreted as authorizing their conduct. They also implied that the guards - in the small town of Capshaw, Alabama - might have had a different sense of reasonableness than the rest of the country.

An "Obvious" Violation That Justices and Prison Guards Do Not See As Obvious?

That leads to a troubling question for the majority: If the violation was so obvious, why wasn't the Court's decision unanimous - especially given the fact that all the justices, including the three dissenters, are supposed quintessentially reasonable people?

What was "obvious" to the six majority Justices was not so "obvious" to the three dissenting Justices - and thus, arguably, was not obvious to a reasonable person. Nor was it obvious to the federal district judges - theoretically, reasonable people - who had denied similar prisoner claims in the past.

It probably was not obvious to the prison guards at the time either. Granted, they might have known they were doing wrong, and just have assumed they would never be caught. But with the prevalence of prisoners' suits, that would have been a foolish assumption.

Would the guards really have risked indulging their sadism on the prisoner if they knew that their conduct was illegal and would be the basis for a tort suit against them for millions of dollars? Perhaps, but perhaps not. More likely, the guards may have thought they were at the very limits of their wide discretion and power under the law.

The Law/Ethics Gap and Why It Exists

Should what is ethically right must always be presumed law? Should a reasonable person be able to assume that law and ethics are the same? Surprisingly, the answer may be no.

That is because, in many situations, law and ethics must remain separated to make sure citizens have notice of what laws they may be breaking, and what the consequences will be if they do. There are no "common law" crimes in this country. America has chosen to define all its crimes by statute. That means that no matter how ethically bad behavior is, if it is not defined as a crime, it cannot be punished as one.

The inevitable result is that some rogues who fall between the law's cracks will go free. But the result of having "common law" crimes would be oppression and persecution - with prosecutors going after some citizens whose conduct they believed, based on their own values, was unethical.

The prohibition on "common law" crimes is a good thing even though injustice can result. In the case of criminal law - and perhaps even in the case of potentially huge damage awards against government employees, such as the ones the guards now face - clarity and notice should be key, and vagueness and uncertainty can lead to profound unfairness.

If the prisoner's allegations about what the guards did are correct, the guards certainly deserve punishment, for they acted wrongly and, indeed, inhumanly. But what one deserves is an ethical, not a legal, matter.

The Court should have been more careful to separate the two in its decision. And more generally, it should devise rules that allow it to do justice without relying on the fiction that what is ethically wrong is also "obviously" illegal.

Doing so might not change the result of Hope v. Pelzer - for it is hard to countenance a result that lets these particular rogues off the hook, so evil do they seem. But it would be more honest on the part of the Court.