High Court Weighs Prison Cruelty Case

WASHINGTON — In 1689, the English Bill of Rights prohibited “cruel and unusual punishments,” partly in response to a notorious case of a defrocked clergyman who had been put in the stocks and whipped.

A century later, the ban on “cruel and unusual punishment” was added to the U.S. Constitution, and the Supreme Court in 1909 described the pillory and the whipping post as the kind of penalties that were “banished” by public opinion and “forbidden as cruel and unusual punishment.”

But in the mid-1990s, Alabama reinstituted chain gangs for prisoners and permitted guards to handcuff difficult inmates to a metal rod known as the “hitching post.”

On Wednesday, the Supreme Court took up the case of Larry Hope, an inmate who received such treatment on a hot day seven years ago. The justices will decide whether he had been subjected to cruel and unusual punishment and, if so, whether his guards can be forced to pay damages for violating his constitutional rights. The Bush administration has taken Hope’s side in the case.

Accused by his guards of disrupting a work crew, Hope spent seven hours standing in the sun on June 7, 1995, handcuffed to the pole. Because his hands and arms were fastened at shoulder height, his wrists became bruised and swollen. Guards had removed his shirt. Hope also went at least three hours without water, although he says guards did bring water for the dogs that were watching over him. He also had no bathroom breaks for most of his time on the post.

After being released from prison, Hope sued several of the guards.

Last year, the U.S. 11th Circuit Court of Appeals handed down a split decision in Hope’s case. It ruled that Hope had suffered cruel and unusual punishment, but it threw out his lawsuit against the guards, saying they could not be sued because of the legal principle of qualified immunity.

Under that principle, the Supreme Court has said, police and other law enforcement officers can be sued only for violating a “clearly established” constitutional right.

And the Alabama prison guards argue that they cannot be held liable in Hope’s case because the Supreme Court has never said that handcuffing someone to a fence or a post is unconstitutional.

The justices have struggled in the abstract with defining what is cruel and unusual punishment, but most of them seemed to have no doubt Wednesday that Hope’s ordeal qualified.

This was not about “quelling a riot” or using force to maintain order in prison, Justice Ruth Bader Ginsburg told an Alabama state lawyer. This was “strictly a form of punishment,” she said.

Nathan Forrester, the state’s solicitor, denied that it was punishment. Inmates who were “disruptive” or refused to work were cuffed to the pole, he said.

Justice Stephen G. Breyer interrupted him in an angry tone. “Would any human being know that [it is cruel and unusual punishment] if you stand someone in the sun, without water, arms over his head?”

Forrester said Hope’s hands were not over his head. “His hands were chest high,” the state’s lawyer said.

“So the state could legally keep him hanging to this rod? Hours on end? No water?” asked Justice Sandra Day O’Connor.

“And no bathroom breaks?” added Justice John Paul Stevens.

“And that’s the state’s position? That’s just fine?” O’Connor said.

Only Justice Antonin Scalia came to the state’s defense.

“What was the prison supposed to do? He was disrupting the work crew,” Scalia told Hope’s lawyer, Craig T. Jones of Atlanta.

Jones responded that Hope had not been disruptive. A guard had grabbed him by the throat for sleeping on the bus, and their fight prompted the guards to handcuff Hope to the rod, he said.

U.S. Solicitor General Theodore Olson sided with Hope, saying the law was clear that guards cannot chain prisoners to fences or railings. “No reasonable officer could have thought that the prolonged, painful and punitive use of the hitching post that allegedly occurred on June 7, 1995, was lawful,” Olson said in his brief to the court.

Alabama was the only state in the nation to use the hitching post, he said. (The state discontinued its use in 1998.) More than 20 years ago, a federal appeals court in New Orleans had condemned Mississippi’s prison guards for handcuffing inmates to cells for long periods of time, and that ruling should have put Alabama’s officials on notice, Olson said.

But lawyers for 15 states--California was not among them--joined Alabama in urging the court to say that guards should be immune from lawsuits unless they cause “serious harm” to an inmate, such as inflicting permanent injury. In this case, Hope may have suffered pain and discomfort, but he was not permanently injured, they said.

Police and prison guards need to make “split-second decisions” and should not face personal lawsuits over their actions, said Gene Schaerr, an attorney representing the other states.

“This was not split-second. We’re talking about seven hours here,” O’Connor responded.

The justices have between now and late June to spell out the law in the case of Hope vs. Pelzer, 01-309.