Quietly Sanctioning Prison Beatings

( – promoted by buhdydharma )

Clarence Thomas may not have spoken in oral arguments at the Supreme Court in more than four years, but this morning Linda Greenhouse writes in the New York Times about Thomas’s consistent, twice repeated argument that the Eighth Amendment does not proscribe “harsh treatment”, including beatings of prisoners.  You read that correctly.  Prison beatings, according to Justice Thomas, aren’t forbidden by the Eighth Amendment. And presumably, neither are stress positions, sleep deprivation and other forms of torture.  And as if that position were not repulsive enough, Thomas apparently wants it to be adopted by the new majority of the Supreme Court.

Greenhouse points out that during his confirmation hearing, Thomas expressed his empathy for prisoners:

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.

Those sentiments, however, must have been added solely to manipulate the listeners.  They must have been just another sleight of hand attempt to cast himself as a victim.  Why do I say that?  Because in 1992, four months after he assumed his seat on the Court, Thomas dissented in Hudson v. McMillan.  Keith Hudson, if he believed what Thomas said during the confirmation hearings, must have been happy to have him on the Court to hear his case.  Hudson “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.”  The Supreme Court reversed and reinstated the suit.  In behalf of a 7-judge majority Judge Sandra Day O’Connor wrote, “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.”  Put another way, the Eighth Amendment forbids malicious and sadistic beatings of prisoners.

And what did Thomas (and Scalia) find objectionable with this ruling?  Greenhouse puts it this way:

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.”

Isn’t that wonderful?  Guards have always beaten prisoners.  The Constitution, and particularly the Eighth Amendment proscription against cruel and unusual punishments, according to Thomas and Scalia, doesn’t apply in any fashion to these myriad beatings.  The Constitution is silent about post sentence events, including beatings and torture and excessive solitary confinement and lack of medical care and brutality in all forms during a sentence.  So prisoners have no recourse in federal court, when they are beaten or otherwise brutalized.  So much for empathy.  Long live hypocrisy.  

Unfortunately, that’s not the end of the story.  Eighteen years later, in a 9-0 decision, the Supreme Court relying on stare decisis followed Hudson in Wilkins v. Gaddy.  Jamey L. Wilkins claimed that a guard had answered 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.  Thomas and Scalia concurred in the result in a separate opinion, in which Thomas sought to solicit a case in which he and others in the new Supreme Court majority might overrule Hudson and advance the argument that the Eighth Amendment permits guards to beat prisoners who ask for grievance forms.  Greenhouse writes,

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. But noting that “no party to this case asks us to overrule Hudson,” he said that he was going along with the majority because as long as the precedent was on the books, it clearly required the result the Supreme Court had reached.

Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.

I am horrified, but not surprised by Thomas’s views.  And to the rest of the world, these views make the United States appear to be a band of brutal barbarians.  But, of course, there is really nothing that can be done about this. Thomas and Scalia were appointed for life.  One has to wonder aloud how judges with such aberrant and bizarre views of the Constitution have been confirmed.


simulposted at The Dream Antilles and dailyKos


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  1. No ifs, ands, or buts. The argument Thomas is making should be an embarrassment to civilized people in this country.  I put this up so that you, dear reader, might be aware of what the Supreme Court is thinking about prisoners, of which there are now more than 2 million in the US.

    Thanks for reading.

  2. The vote was 52-48, so in effect the Democrats put thomas on the SCOTUS.

    Sounds like that bunch was as much wusses as the ones we got now.

    • Edger on March 12, 2010 at 3:44 pm

    The American Civil Liberties Union sued state prison officials and a private company Thursday, claiming violence is so rampant at the Idaho Correctional Center that it’s known as “gladiator school” among inmates.

    The ACLU filed the lawsuit against Nashville, Tennessee-based Corrections Corp. of America in U.S. District Court in Boise.

    The lawsuit says Idaho’s only private prison is extraordinarily violent, with guards deliberately exposing inmates to brutal beatings from other prisoners as a management tool.

    The group contends the prison then denies injured inmates medical care to save money and hide the extent of injuries.


    Stephen Pevar, senior attorney for the ACLU, said he has sued at least 100 jails and prisons, but none came close to the level of violence at Idaho Correctional Center.


    The ACLU is asking for class-action status and $155 million in punitive damages – the entire net profit reported by the company in 2009.

    The ACLU says the money should go to lead plaintiff Marlin Riggs, who sustained permanent facial deformities and other medical problems after he was savagely beaten in his cell.


    The beating was so bad, the ACLU contends, that blood was spattered on the ceiling of Riggs’ cell and pooled on the floor.

    Guards eventually intervened and took Riggs to an infirmary where a doctor told him his nose was broken and tried to reset it. However, the doctor refused to take X-rays and ignored several other broken bones in his face, the lawsuit claims.

    Riggs was denied medical care for six months before being taken to an ear, nose and throat specialist, who said he needed immediate surgery, according to the lawsuit.

    ACLU sues Corrections Corp. over ‘extraordinarily violent’ Idaho prison

    • Robyn on March 12, 2010 at 11:17 pm

    …to being beaten.  They do not get sentenced to be raped.  The reason we have prison guards is to protect the prisoners from one another…to “guard the prisoners”.

  3. Things just worsen.

    There has always been a measure of prison abuse, as there has been with cop abuse.  But, all of those possessing, from the greatest power to the littlest, simply feel more emboldened now than ever before.  It all trickles down from the top.  A country that commits torture and allows and helps to cause the deaths of uncharged detainees and continues to allow these kinds of cruelties simply paves the way for all kinds of like abuses in various of our systems.

    In fact, I think I read somewhere that private prisons were going to or have adopted the AFM’s, Appendix M, for its own governance over prisoners — I could be mistaken, but I do believe I read that somewhere.

    Not long ago, I was doing some research (I think in connection with Cheney’s indictment, having to do with death, in a private prison of his investments [Vanguard, I believe].  Anyway, I turned up some pretty interesting sites on much about this very thing — I’ll just list the links, which you may choose to peruse or not.  However, the first one has to do with a case that this diary instantly reminded me of, posted on one Valti’s diaries.

    1.  You tie everything together . . .

    2.  CCPOA (California correctional Peace Officers Association) Inmate Lawsuit, etc.  This site, although California based, is not limited to instances in California, alone!

    3.  The prison industry in the United States: big business or a new form of slavery?

    4.  ABT Associates . . Private Prisons in the U.S.>  This is old (July, 1998), but private prisons were considered because of cost-effectiveness?

    5.  Prison Policy Initiative — Criminal Justice Fact Sheets

    6.  CEPR (Center for Economic and Policy Research  Private Prison Company Gets Haiti Contract, Friday, 19 February 2010 17:09!

    I’m sure you’re probably already familiar with most of these, so you can pick and choose!  

    and I’m going to list this again for those who may wish to sign on:

    A Single Voice Project  This is a petition to the U.S. to abolish private prisons.  


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