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Thomas and Scalia Flunk History

The unanimous decision of the United States Supreme Court in Overton v. Bazzetta, upholding Michigan's punitive restrictions on prisoners' visiting rights, showed again how antagonistic the Rehnquist Court is toward prisoners' rights compared to the Burger Court. But the Court's two most conservative justices showed they would like the clock turned back even further.

In his concurring opinion in Overton, Justice Clarence Thomas (joined by Justice Antonin Scalia) asserted that "the history of incarceration as punishment supports the view that the [prison] sentences& terminated any [emphasis added] rights of intimate association."

Thomas and Scalia cited several works of prison historiography, including my book, With Liberty for Some: 500 Years of Imprisonment in America (1998), to trace the development of imprisonment in this country from the late 18th century to the mid-19th century, as if to buttress their case that Michigan's policy didn't somehow violate the Eighth Amendment ban against cruel and unusual punishment. (Why they considered only that less-than-100-year span wasn't explained.)

Their opinion included examples of some early prison practices from slavery days, without condemning them or suggesting that society might do well to progress from such barbarism.

Thomas and Scalia seemed to indicate that whatever prison policies existed then should be constitutional today. They also pointedly left it to the states to determine whatever punishment they want to impose, so long as it doesn't violate the Eighth Amendment.

Their opinion carefully avoided mentioning the Thirteenth Amendment. To establish prisoners' legal status, however, they implicitly seemed to hang their hat on that provision. In other words, because the Constitution specifies that there shall be no slavery or involuntary servitude except for those convicted of a crime, then by extension, anyone so convicted can be treated with as much rights as a slave _ just as they were in the "good old days."

As the author of one of the works they cited, but obviously hadn't read, I think the justices would do well to recognize that those who fail to heed history's lessons are bound to repeat its mistakes.

Scott Christianson is author of With Liberty for Some (Available from PLN _ see pg 37-38) and other books.

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