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The Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson, Alabama Law Review, 2020

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1970​S ​............................................................................. 101 II.
​ NISHMENT .​ .............................................

AND ​F​OURTEENTH ​A​MENDMENTS ​...........................................

121 IV.

.... 149
​ LLIVAN​, Civil Action No.
filed in the Middle District of Alabama, Feb. 26, 1974 ​............................... 148 ​T​HE
​ MES V.​ WA​ LLACE,​ Civil Action No. 74-203-N,
filed in the Middle District of Alabama, June 21, 1974

............................... 152

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J​OHNSON ​F​RANK ​P​UZZLES ​BP R​EVISED ​3 4/15/2020 (D​O ​N​OT ​D​ELETE​) 4/21/20 2:23 PM

Frank Johnson’s landmark opinions in the 1970s recognized prisoners as
rights-holders who were enti- tled to safety, sanitary conditions, health care,
activities, and fair decision-making. In 2020, we take these propositions for
granted, just as we also take for granted the power of prisoners to
seek—and sometimes to win—judicial help in stopping the state from
imposing certain forms of punishment on people convicted of crimes.
A first purpose of this Essay is to remind readers how radical and recent
are the ideas of prisoners as rights-holders and of courts as protectors of
those rights. Efforts to reform prisons are hundreds of years old. Yet the
many ambitious individuals who sought to ameliorate conditions did not see
prisoners as people whom law protected. Judge Johnson’s contributions
were to explain and to ensconce the judicial power to override prison
officials’ decisions about conditions of confinement. And as miserable as
prisons are, those rulings have helped to alter some aspects of prisoners’
daily lives.

* Arthur Liman Professor of Law, Yale Law School. All rights reserved, Judith Resnik ©, 2020. This work is
supported by an Andrew Carnegie Fellowship; the research and views expressed are mine.
The anal- ysis here overlaps with and builds on my essay ​(Un)Constitutional Punishments:
Eighth Amendment Silos, Penological Purposes, and People’s “Ruin​,​” ​129 Y​ALE ​L.J.F. 365
(2020); the article ​In-Prison Punishment: Constituting the “Normal” and the “Atypical” in Solitary
and Other Forms of Confinement (​ coauthored with Hirsa Amin, Sophie Angelis, Megan
Hauptman, Aseem Mehta, Laura Kokatailo, Madeline Silva, Tor Tarantola, and Meredith
Wheeler; forthcom- ing in ​Northwestern University Law Review,​ 2020); and my book, tentatively
entitled ​Impermissible Punishments.​
Thanks are due to Ronald Krotoszynski, Jenny Carroll, the many former clerks of Judge Johnson, the Johnson
Foundation, the University of Alabama School of Law for convening the symposium, and to colleagues and current and former students who helped me learn about the history and impact of
prison reform. Greg Conyers and Michael Morse did intensive research on Judge Johnson’s
decisions; Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta,
Hannah Schoen, Madeline Silva, Scott Stern, Kelsey Stimson, Tor Tarantola, Iva Velickovic,
Alex Wang, and Meredith Wheeler have focused on the his- tory of prison litigation, past and

current. We were all aided by Yale undergraduates Kevin Bendesky, Esul Burton, Joseph
Gaylin, and Molly Shapiro. Thanks are also due to Yale law librarians, Michael Vanderheijden,
Julian Aiken, Lora Johns, Lucie Olejnikova and to Associate Director for Administration Jason
Eiseman who, working under Teresa Miguel-Stearns, have been remarkable in ferreting out
resources and in helping us to make legible the 1974 complaints filed in the Middle District of
Alabama. Bonnie Posick provided expert editorial assistance. I learned the backdrop to ​Trop v.
Dulles ​through conversations with the Honorable Jon O. Newman, and I deepened my
understanding of the Alabama prison litigation from Larry Yackle’s insight- ful account of Judge
Johnson’s work. David Fathi of the ACLU’s National Prison Project helped me to research that
organization’s work, and David Rudofsky provided insights on prisoner litigation over the many
decades discussed here. Lucas Guttentag, who clerked for Judge William Wayne Justice when
he presided over parts of the Texas prison litigation, offered many thoughtful comments on a
draft, as did James Pfander, who is also writing in this symposium issue. Thanks are due to
Dennis Curtis, Anna VanCleave, Kristen Bell, Nancy Gertner, Ali Harrington, Brett Dignam,
Alex Reinart, and Margo Schlanger, who commented on this and related essays and who are
devoted to limiting some of incarceration’s harms.


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2020] ​The Puzzles of Prisoners and Rights ​101
Second, I bring to the fore more of the people who built that new law of
prisons. Doing so entails mapping interactions among federal judges,
lawyers, and dozens of prisoners whose names are not (yet) familiar but
who deserve pride of place in the annals of the philosophy of punishment
and of the law of prisons. Unrepresented, they provided insightful accounts
into why the pain of their confinement was unconstitu- tional.
Third, I illuminate both the utility of law and the impact of the retreat from
the doctrines that Judge Johnson elaborated. In the 1970s, the U.S.
Supreme Court endorsed the precept that the Constitution does not stop at
prisons’ gates. But in later decades, the Court limited the application of the
Eighth and the Fourteenth Amendments to prisoners. The Court refused to
constrain prison overcrowding despite arguments that the intense density
was cruel and unusual punishment. Further, the Court crafted a line of
Fourteenth Amendment due process doctrine that distinguished between
“typical” conditions in prisons, left largely to the unfettered discretion of

prison officials, and “atypical” conditions, for which some pro- tection
against arbitrary decisions was required.
Looking back at prison litigation in the 1960s and 1970s demonstrates the
importance of rejecting the “typical” as a normative baseline from which to
assess the legally permissible. Prisoners and judges such as Frank
Johnson understood that the U.S. Constitution requires more than
subsistence warehousing of people convicted of crimes. Amidst the squalor
of conditions in the 1960s and 1970s, they saw that states could not use
their punishment powers to ruin people and therefore had affirmative
obligations to prevent debilitation. Whether a constitutional right to
rehabilitation exists is distinct from the proposition that in constitutional
democracies, governments cannot set out to cause deterioration as a
purpose of their punishment.

​ OWN V.​ BO
To think about Judge Johnson’s decisions on prisons requires knowing some
of the history that made incarceration a central mode of punishment
in the United States while leaving prisoners until the 1960s with very
little access to courts. Given current awareness of the harms to the
massive numbers of incarcerated persons, it is worth remembering
that building penitentiaries was once heralded as a great reform. In
the seventeenth and eighteenth centuries, advocates ​for
incarceration argued that prisons would be an enlightened advance
over the punishments then commonplace which were execution,
branding, and transportation to empires’ colonies.
Yet with the “birth” of the penitentiary in the eighteenth century came calls for
its reform. Local societies in England and the United States
pioneered ef- forts that resulted in national and international
organizations documenting mis- erable conditions in prisons. They
sought ameliorative responses through the new social sciences of
penology and criminology and through the profession of corrections.
These reformers did not, however, recognize that prisoners were
entitled as a ​right t​ o safety, sanitation, and fair treatment.
Given the centrality of constitutionalism in the United States, one might have
thought that this country would have taken a different approach. The
1789 U.S. Constitution addressed criminal law in a few arenas—by
imposing rules

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102 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
for the trial of treason,​1 ​prohibiting ex post facto crimes,​2 ​and
authorizing Con- gress to “define and punish” piracies and felonies
on the high seas and crimes “against the Law of Nations.”​3 ​The
Constitution also prohibited Congress from “suspending” the writ of
habeas corpus.​4 ​But the U.S. Constitution did not di- rect the forms
that punishment could take.
When the 1791 Bill of Rights amended that document, it addressed punishment in the Eighth Amendment through prohibitions on
“excessive fines” and “cruel and unusual punishments.”​5 ​Yet
degrading prisoners was common- place, rather than unusual.
Moreover, the Eighth Amendment was not read un- til the later part
of the twentieth century to apply to the states, where most of the
country’s prisoners were (and are) confined.​6
The post-Civil War Amendments also excluded prisoners from much of their
protection. The Thirteenth Amendment, ratified in 1865, abolished
slavery and involuntary servitude, “except as a punishment for crime
whereof the party shall have been duly convicted.”​7 ​The Fourteenth
Amendment, ratified in 1868, protected the right of “male
inhabitants” to vote in federal elections, except if they had
participated “in rebellion, or other crime.”​8
Carving out convicted prisoners from the new guarantees reflected English
common law traditions that were followed in many states and that
treated pris- oners as “civilly dead”—unable to enter into or enforce
contracts, buy property, or use the legal system at all. As the
Supreme Court of Virginia explained four years after the Fourteenth
Amendment was ratified, the “bill of rights is a dec- laration of
general principles to govern a society of freemen, and not of convicted felons and men civilly dead.”​9 ​Indeed, almost 100 years later,

in 1966, when the American Correctional Association put out a
600-page manual on

1. U.S. C​ONST​. art. III, § 3. 2. ​Id. ​art. I, § 9, cl. 3. 3. ​Id. a
​ rt. I, § 8, cl. 10. The Constitution also
prohibits punishment for “Corruption of Blood,” which means that children are not to be
sanctioned for the crimes of their parents. ​Id. a
​ rt. III, § 3, cl. 2.
4. ​Id. a
​ rt. I, § 9, cl. 2. 5. ​Id. a
​ mend. VIII. 6. For a discussion of the incorporation of the Cruel and
Unusual Punishments Clause in the 1960s and the Excessive Fines Clause in 2019, see Judith
Resnik, ​(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and
People’s “Ruin​,​” 1
​ 29 Y​ALE ​L.J.F. 365, 370–71 (2020) [hereinafter Resnik, ​(Un)Con- stitutional
Punishments​], hr.pdf. ​7.
U.S. C​ONST​. amend. XIII, § 1.
8. ​Id. a
​ mend. XIV, § 2; Richardson v. Ramirez, 418 U.S. 24, 25 (1974); Hunter v. Underwood, 471 U.S. 222,
233 (1985).
9. Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). Some civil disabilities were mandated by statute and
their impact varied by state. ​See ​Note, ​Civil Death Statutes—
​ ​Medieval Fiction in a Modern
World,​ 50 H​ARV​. L. R​EV​. 968, 969 (1937). In 1956, the National Conference on Parole called for
abolition of laws limiting civil and political rights, and by the 1980s, most states had repealed
them. ​See M
​ argaret Colgate Love, ​Starting Over with a Clean Slate: In Praise of a Forgotten
Section of the Model Penal Code,​ 30 F​ORDHAM ​UR
​ B​. L.J. 1705, 1708, 1715 (2003).

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2020] ​The Puzzles of Prisoners and Rights ​103
how to run prisons, it devoted a scant fourteen pages to law and
barely men- tioned the U.S. Constitution.​10
That manual’s skimpy overview got the doctrine “right” as it was at that time.
Law was, of course, the engine that put people into prison. Further,
the U.S. Supreme Court had read the Constitution’s mandate that
Congress could not suspend the writ of habeas corpus​11 ​to mean
that imprisoned individuals could attack their convictions in court
and that prison officials were not sup- posed to impede such
efforts.​12 ​But until the 1960s, courts generally refused challenges to
the rules of and the conditions in prisons.

One example makes the point painfully clear. In the late 1940s, three Illi- nois
prisoners—Harry Siegel, Maurice Meyer, and Robert Harp—sought
fed- eral-court protection from the terrorizing conditions of their
incarceration.​13 ​Harry Siegel said that, after he filed a lawsuit
protesting the rampant violence and corruption, he was sent to
months in solitary confinement where he had “no light . . . no bed . .
. no modern toilet facilities . . . no visitors, no talking.”​14 ​Maurice
Meyer reported that in solitary confinement, he sat in filthy
conditions, shared a “rusty tin cup” for drinking with other prisoners,
and was forced to sleep on “the cold, damp, concrete floor.”​15 ​Robert
Harp alleged that the war- den told him, “I will kill you before you get
out of here.”​16
These prisoners, assisted by a lawyer who brought the combined action,​17
invoked the civil rights legislation that Congress had enacted after
the Civil War to protect freed slaves by authorizing federal lawsuits
if a person, acting “under color” of state law, deprived others of their
constitutional rights.​18 ​Siegel, Harp, and Meyer argued that this
statute gave them access to federal judges because their treatment
in Illinois’s prisons violated their Eighth and Fourteenth Amendment

10. A​M​. C​ORR​. A​SS​’N
​ ​, M​ANUAL OF ​C​ORRECTIONAL ​S​TANDARDS ​266–79 (3d ed. 1966). 11. U.S.
C​ONST​. art. I, § 9, cl. 2. 12. ​Ex parte ​Hull, 312 U.S. 546, 549 (1941). The Habeas Corpus Act of
1867, enacted right after the Civil War, provided for the first time that state as well as federal
prisoners could file petitions in federal court. ​See ​Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385,
presently codified in 28 U.S.C. § 2241 (2018). In practice, however, many prison systems
imposed obstacles to prisoners seeking to file habeas petitions.
13. Complaint at 9, para. XVII(c), Siegel, Harp, and Meyer v. Ragen, No. 49 C 47 (N.D. Ill. 1949) (on file with
14. ​Id. ​at 10, para. XVIII(A)(a). 15. ​Id. ​at 11, paras. XVIII(A)(e), (g). 16. ​Id. a
​ t 13, para. XIX(c).
17. Their attorney was Luis Kutner, who, in 1961, cofounded Amnesty International. Kutner
also argued for an international court to have authority to review claims from imprisoned
persons. ​See ​Wolfgang Saxon, ​Lawyer Who Fought for Human Rights Is Dead at 84,​ N.Y.
T​IMES​, Mar. 4, 1993, at B9. ​See generally V
​ icki C. Jackson, ​World Habeas Corpus,​ 91
C​ORNELL ​L. R​EV​. 303 (2006). Warden Joseph E. Ragen, defending, told the press that the
lawsuit was a “scheme” by Kutner, who wanted to represent “all prisoners in legal matters” and
get fees from prisoners’ funds. ​See 3 Convicts Sue Warden Ragen for $300,000,​ C​HI​. T​RIB​.,
Jan. 11, 1949, at 18,
18. That statute is currently codified at 42 U.S.C. § 1983

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104 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
They lost at the trial and appellate levels.​19 ​The federal district judge responded that, while he would “protect State prisoners from death or
serious bodily harm,” he was “not prepared to establish [himself] as
a ‘co-administrator’ of State prisons” and deal with matters he
characterized as “internal administra- tion and discipline.”​20 ​The
Court of Appeals for the Seventh Circuit stated that even if “every
fact which they have charged” were to be established, the complaint was not sufficient to support federal court involvement.​21 ​To
underscore the rights-less-ness of prisoners, the Seventh Circuit
quoted a 1910 Illinois Su- preme Court decision calling a prisoner
“an alien in his own country.”​22 ​The view that prison administration
was the exclusive domain of the states was re- iterated by many
judges and came to be known as the “hands-off” doctrine.​23 ​As a
result, the system of incarceration was immune from federal judicial
over- sight. ​That insulation eroded in the wake of ​Brown v. Board of
U.S. Supreme Court unanimously rejected
Education​. In 1954, the
arguments that schools run by states and localities were beyond
constitutional review and concluded that racial segregation was
unconstitutional.​24 ​The link between incarceration and race was
vivid, as members of racial minorities then (as now) were
disproportionately apprehended, charged, prosecuted, convicted,
and sentenced to prison. Prison- ers’ arguments for legal status
gained currency with the growth of aspirations to accord equal
treatment to men and women of all colors. When lower federal
courts were put to work overseeing the desegregation of schools,
judges began to see that constitutional guarantees had application
to a host of state-based activities, prisons included.
Key decisions rendered by the U.S. Supreme Court between 1962 and 1964

directed lower court judges to take up claims by criminal defendants
and by prisoners. In 1962, the Court in ​Robinson v. California
concluded that the prohi- bition against “cruel and unusual
punishments” bound states as well as the fed- eral government.​25
The following year, the Court recognized rights to counsel
19. Siegel v. Ragen, 88 F. Supp. 996 (N.D. Ill. 1949), ​aff’d​, 180 F.2d 785 (7th Cir. 1950). 20.
Siegel,​ 88 F. Supp. at 999. 21. ​Siegel​, 180 F.2d at 787, 789. 22. ​Id. ​at 788 (quoting People v.
Russell, 245 Ill. 268, 272 (1910)). ​Russell ​also said that prisoners were worse off than aliens
because while aliens could obtain a right to citizenship, any restoration of rights for prisoners
was a “matter of grace.” ​Russell,​ 245 Ill. at 272.
23. ​See, e.g.​, ​Siegel,​ 180 F.2d at 789. 24. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 25. 370
U.S. 660 (1962). In 1971, the Court assumed that the Eighth Amendment’s Excessive Bail
Clause applied to the states. ​See ​Schilb v. Kuebel, 404 U.S. 357, 365 (1971). Decades later,
the Court again assumed that the Excessive Bail Clause was incorporated against the states.
See M
​ cDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010). In 2019, the Court held that
the Excessive Fines Clause also applied to the states. Timbs v. Indiana, 139 S. Ct. 682, 691
(2019). The Court relied on the Due Process Clause of the Fourteenth Amendment, while
Justice Thomas specified the Privileges or Immunities Clause as the source of incorporation.
S​ee id. ​at 686–87, 691–92 (Thomas, J., concurring). Justice Gorsuch did not take a position

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2020] ​The Puzzles of Prisoners and Rights ​105
for indigent felony defendants in ​Gideon v. Wainwright​26 ​and
authorized post- conviction review in ​Fay v. Noia.​27 ​In 1964, in
Cooper v. Pate,​ the Court ruled that § 1983 civil rights claims could
be brought against state prison officials.​28
These precedents were artifacts of the political mobilizations of the twen- tieth
century. Many scholars have chronicled the work of local and
national organizations as they joined communities in marches,
political action, and liti- gation—all aiming to curb the many forms of
subordination that were then commonplace. As these social
movements propelled the Court to recognize rights outside and
inside prisons, judges such as Frank Johnson saw that com-

mitments to ending racial oppression did not stop at the gates to
Alabama’s prisons.​29
This brief account reflects that from the 1700s until the 1960s, incarcerated
people were the subject of condemnation as well as of concern.
Through elo- quence and sometimes with communal protests and
uprisings, incarcerated in- dividuals reached out for help. They were
not, however, in a position to stop the punishments they endured in
About sixty years ago, prisoners’ relationship to law changed. To under- stand
how and why, we need to consider not only remarkable judges such
as Frank Johnson but also the remarkable prisoners who imagined
that they were rights-holders when the world told them that they
were not.​30 ​Ordinary people, often with little or no education and no
money, took extraordinary leaps of faith. They built the law that is
often assumed always to have been there.

on whether the basis for incorporation was the Privileges or Immunities Clause or the Due
Process Clause of the Fourteenth Amendment. ​Id. a
​ t 691 (Gorsuch, J., concurring).
26. 372 U.S. 335, 345 (1963). That obligation has, in practice, been unevenly and insufficiently imple- mented.
See S
​ ymposium, ​The G
​ ideon ​Effect: Rights, Justice, and Lawyers,​ 122 Y​ALE ​L. J. 2106 (2013);
Stephen B. Bright & Sia M. Sanneth, ​Fifty Years of Defiance and Resistance After ​Gideon v.
Wainwright, 122 Y​ALE ​L.J. 2150 (2013). ​27. 372 U.S. 391 (1963). In 1991, the Court
abandoned ​Fay.​ ​See C
​ oleman v. Thompson, 501 U.S. 722, 724

28. 378 U.S. 546 (1964). That decision built on ​Monroe v. Pape,​ holding that litigants did not need to exhaust
state courts’ remedies. 365 U.S. 167 (1961). ​Monroe​’s reading of § 1983 that its reference to
“any person” did not include municipalities was later revised. ​See M
​ onell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). ​29. One analysis of the impact of courts comes from M​ALCOLM ​M.
Another analysis underscored the need to enlarge the focus to consider the role of social
movements and lawyers in shaping these cases. ​See M
​ argo Schlanger, ​Beyond the Hero
Judge: Institutional Reform Litigation as Litigation​, 97 M​ICH​. L. R​EV​. 1994 (1999).
30. Two key decisions were ​Pugh v. Locke,​ 406 F. Supp. 318 (M.D. Ala. 1976), and ​Wyatt v. Stickney​, 325 F.
Supp. 781 (M.D. Ala. 1971). The ambitions and impact of Judge Johnson’s decisions are
chronicled in Larry Yackle’s 1989 book that provides a moving account of the prison litigation
and its aftermath. ​See L
​ STEM ​(1989).

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106 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
Two such individuals, Jerry Lee Pugh and Worley James, filed lawsuits in
1974 that prompted Judge Johnson to appoint lawyers, hold
hearings, and even- tually issue decrees (today called structural
injunctions)​31 ​requiring redress in Alabama prisons. Figure 1
reproduces the front page of Pugh’s typed com- plaint, which is
provided in full as an appendix at this Essay’s end, along with that
of Worley James.
Figure 1. ​The Opening Page of the Complaint in
Pugh v. Sullivan​,
Civil Action No. 74-51-N, M.D. Ala.

Filing in February of 1974, Pugh explained that, “at all times mentioned herein,
[he was a] Prisoner of The State of Alabama, in the custody of The

31. ​See ​Owen M. Fiss, ​Foreword: The Forms of Justice,​ 93 H​ARV​. L. R​EV​.
1, 49 (1979).

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2020] ​The Puzzles of Prisoners and Rights ​107

Alabama Board of Corrections,” and housed at a prison in Elmore.​32
Pugh was then twenty-seven years old and had, a year earlier, been
sent to prison for vio- lating conditions of probation.​33
Pugh alleged that he had been placed in a dormitory with more than 200
prisoners, of whom twenty-seven were white.​34 ​Describing the
“[t]ension be- tween the Whites and Black Inmates” as high, Pugh
reported that he had asked to be transferred to a place with more
White prisoners.​35 ​He alleged that the staff refused and that on
August 8, 1973, he was one of fourteen prisoners “beaten so badly”
that he was left “for dead.”​36 ​Pugh said he had a “fractured skull” and
other injuries; after a high-risk surgery and a long hospitalization, he
alleged that the prison denied him needed follow-up surgery.​37
Pugh argued that Alabama had violated his rights under the Eighth and
Fourteenth Amendments because state officials (the commissioner
of the Ala- bama Board of Corrections and the warden of the prison)
had failed to keep him safe from assaults.​38 ​Pugh requested both an
injunction and $2 million in damages.​39 ​As Professor Larry Yackle
explained in his analysis of the Alabama prison litigation, Judge
Johnson responded by asking Robert Segall, who had been one of
his law clerks, to represent Pugh.​40
In June of 1974, Worley James filed his handwritten complaint. He too was “in
Custody of the Alabama Board of Correction[s],” housed in a facility
at Atmore.​41 ​As Professor Yackle detailed, James, “the son of a
black sharecrop- per,” had spent decades inside prisons for a “string
of felonies” dating back to 1925.​42 ​That complaint named Governor
George Wallace as well as prison officials as defendants and
argued that the physical conditions constituted “punishments in
violation of the Fifth, Eighth, [and] Fourteenth Amendments of the
U.S. Constitution.”​43 ​Seeking relief “from this unjust punishment,”
James described
32. ​See C
​ omplaint at 1, para. 2, Pugh v. Sullivan, No. 74-57-N, filed in the U.S. District Court in Montgomery,
Ala. on Feb. 26, 1974 [hereinafter Pugh Complaint]. By the time Judge Johnson rendered his
decision in 1976, L.B. Sullivan had been replaced by Judson C. Locke as the commissioner.
See P
​ ugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976). A copy of the complaint is reproduced
in full in the Appendix, ​infra.​
33. Y​ACKLE​, ​supra n
​ ote 30, at 54. 34. Pugh Complaint, s​ upra ​note 32, at 2, para. 6. 35. ​Id. ​36.
Id. ​Additional materials on the case are available on the Civil Rights Litigation Clearinghouse
web- site. Univ. of Mich. Law Sch., ​Case Profile: Pugh v. Locke,​ C.R. L​ITIG​. C​LEARINGHOUSE​,
https://www.clearing (last visited Jan. 25, 2020).
37. Pugh Complaint, ​supra n
​ ote 32, at 2–3, paras. 6–7. 38. ​Id. ​at 2–3, paras. 6–8. 39. ​Id. ​at 4,
paras. 9–10. 40. Y​ACKLE​, ​supra n
​ ote 30, at 51. 41. Complaint at 2, para. 2, James v. Wallace,
No. 74-203-N, filed in the U.S. District Court in Mont- gomery, Ala. on June 21, 1974

[hereinafter James Complaint]. A copy of the complaint is reproduced in full in the Appendix,
42. Y​ACKLE​, ​supra n
​ ote 30, at 54. 43. James
Complaint, ​supra n
​ ote 41, at 2, para. 6.

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108 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
the prison’s refusal to provide needed medical care, rehabilitation,
recreation, and adequate food.​44
Figure 2 reproduces the last page of his complaint, styled a “Memorandum of
Law” and listing the names of thirteen federal cases that had been
brought by other prisoners during the decade before his filing.​45
Figure 2. ​Worley James’s “Memorandum of Law”
Concluding His
Complaint in ​James v. Wallace​,

Civil Action No. 74-203 N, M.D. Ala.

This Memorandum of Law does not look like what lawyers produce. Yet
Worley James (and whoever assisted him) did a terrific job of
assembling the

44. ​Id. a
​ t 2–3, para.
6. 45. ​Id. a
​ t 4.

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2020] ​The Puzzles of Prisoners and Rights ​109
relevant precedents.​46 ​Even before Judge Johnson appointed law
professor George Taylor to represent James, the filing was
James pointed to the efforts of people held in Alabama, Arkansas, Califor- nia,
Florida, Illinois, Texas, and Virginia who obtained decisions from
courts in the years from 1966 to 1972. Recounting their claims
shows how much their experiences sound like what the Illinois
prisoners tried, unsuccessfully, in 1949 to get federal judges to
recognize as worthy of court attention. In contrast, in these thirteen
cases, judges agreed with prisoners that they had rights to be ​in
court and agreed they had rights to be free from some forms of
punishment ​in p
​ risons.​48
Plunging into the details of lawsuits filed decades ago is necessary because
the repetitive fact patterns make clear that, across the United
States, prisoners were bogged down in repetitively similar and
terrifying detention. Reading about the morass of misconduct, one
can glimpse why some judges were wor- ried about becoming
involved, just as these decisions also make plain the con- tributions
of Judge Johnson (and several other federal judges) who devoted
sustained attention to dozens of same-sounding and disturbing
I have reorganized James’s list to put the cases in chronological order. The
earliest ruling came from Judge Johnson, writing ​Washington v. Lee
in 1966 on behalf of a three-judge court. The decision not only was
the first to hold un- constitutional the organized racial segregation of
prisons​49 ​but also resulted in

46. Yackle reported that another prisoner who helped James “was never publicly disclosed.” Y​ACKLE​, ​supra
note 30, at 54.
47. ​Id. ​at 54–55. Taylor had joined with other lawyers in filing the “first great reapportionment case,” ​Reynolds
v. Sims​, in 1963. ​Id.​ Taylor had then worked on ​Gates v. Collier​, the litigation in Mississippi
challenging that prison system, before returning to The University of Alabama to become an
assistant dean. ​Id. a
​ t 55. Yackle recounted that after Taylor met James, who was by then old
and “sickly,” Taylor worked to reconfig- ure the case as not an individual claim about health
care but as a class action focused on a right to rehabilita- tion. ​Id.​ at 55–56. Taylor hoped to
draw on the right to treatment in Judge Johnson’s decision in ​Wyatt v. Stickney.​ ​Id.​ at 56–58.
Given the limits of the Court’s interpretation of the Due Process Clause, Taylor thought it better
to pursue rights to services such as education and recreation as part of an affirmative right to
reha- bilitation predicated on the Eighth Amendment. ​Id. ​at 58–59. A right to living conditions in

which rehabili- tation was possible became part of the theory. ​Id​. at 76–77.

Taylor filed an amended class action complaint on behalf of six prisoners housed at the Holman Maxi- mum
Security Unit in Atmore, Alabama, and all prisoners in all units of Alabama’s prison system held
“as a result of felony convictions.” James v. Wallace, 382 F. Supp. 1177, 1178 & n.1 (M.D. Ala.
1974). Judge John- son denied Alabama’s motion to dismiss for failure to state a claim but
distinguished between an absolute right to rehabilitation (which he held was not demanded,
given that “free citizens” did not have such right to treatment) and the right not to be held in
conditions making it “impossible” to have rehabilitation. ​Id​. at 1180. ​See infra ​notes 126, 248.
48. For discussion of other prisoner litigation in this time period, see the National Prison Project’s
fifteenth-anniversary journal volume. 13 J. N​AT​’L​ ​PR
​ OJECT​, Fall 1987, at 1.
49. ​See W
​ ashington v. Lee, 263 F. Supp. 327, 331 (M.D. Ala. 1966) (three-judge court), ​aff’d sub nom. ​Lee v.
Washington, 390 U.S. 333 (1968). Also on the three-judge court were Circuit Judge Richard
Rives and District Judge Seybourn Harris Lynne of the Northern District of Alabama. When
statutes or regulations that applied statewide were at issue, federal law then required the
convening of a three-judge court. ​See D
​ avid P. Currie, ​The Three-Judge District Court in
Constitutional Litigation​, 32 U. C​HI​. L. R​EV​. 1, 30–37 (1964).

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110 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
the first U.S. Supreme Court decision (the affirmance in 1968) to
address a class action challenging prison conditions.​50
This lawsuit brings into focus that, in addition to prisoners and judges, the
other building blocks of prisoners’ rights were social movements,
streams of funding for lawyers to build records, and procedural
innovations. The battles over segregation mobilized many sectors,
including the American Civil Liberties Union (ACLU) and the Legal
Defense and Educational Fund, Inc. (LDF), which by then had
separated from the NAACP and which committed resources to
litigate discrimination claims including those on behalf of criminal
defend- ants and prisoners.​51 ​But new tools were needed to make
possible long-term implementation of the legal rights announced.
The problem of enforcement of federal court orders became vivid in the
context of school desegregation mandates, which were often met by
hostile, violent responses. Given recalcitrant defendants, judges
involved in such cases sometimes found that named plaintiffs had
graduated and that no one had the legal authority to enforce the

relief that had been won. In the early 1960s, draft- ers of federal
procedural rules proposed major revisions, including novel forms of
class actions to enable people who fell within class definitions (such
as all children in a particular school district) to continue as plaintiffs
and enforce court orders. In 1966, the Supreme Court promulgated
a new class action rule, which permitted judges to authorize class
actions for groups seeking injunctive relief and to craft long-term
Washington v. Lee ​was one of the first cases to use the 1966 class action
rule.​53 ​The ACLU and LDF represented Caliph Washington, Hosea
L. Williams, Julia

50. As I have elsewhere argued, understanding the law of prison conditions requires bringing together cases
that often sit in separate doctrinal silos, such as those that focus on equal protection challenges
as contrasted with those that focus on violence or other kinds of conditions in prisons. ​See
Resnik, ​(Un)Consti- tutional Punishments,​ ​supra ​note 6, at 365–70.
51. The Legal Defense and Education Fund (LDF) launched its work against the death penalty in 1961. ​See
Eric L. Muller, ​The Legal Defense Fund’s Capital Punishment Campaign: The Distorting
Influence of Death,​ 4 Y​ALE ​L. & P​OL​’​Y ​RE
​ V​. 158, 158 (1985). The ACLU’s National Prison
Project (NPP) began in 1972. ​See J​ ​OHN ​A F​LITER​, P​RISONERS​’ R​IGHTS​: T​HE ​S​UPREME ​C​OURT
​ CENCY ​38–40 (2001); Samuel Walker, ​Sixties Civil Rights
Gave Momentum to Prisoners’ Rights,​ 13 J. N​AT​’L​ ​PR
​ OJECT​, Fall 1987, at 2, 3.

52. ​See J​ udith Resnik, ​From “Cases” to “Litigation​,” 54 L​AW ​& C​ONTEMP​. P​ROBS​., Summer 1991, at 5, 8–9,
25–26, 40–43, 42 n.181 (1991); Judith Resnik, “​Vital” State Interests: From Representative
Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal
Courts,​ 165 U. P​A​. L. R​EV​. 1765, 1766–68 (2017); Judith Resnik, ​Reorienting the Process Due:
Using Jurisdiction to Forge Post-Settlement Relationships Among Lit- igants, Courts, and the
Public in Class and Other Aggregate Litigation,​ 92 N.Y.U. L. R​EV​. 1017, 1020 (2017); David
Marcus, ​The History of the Modern Class Action, Part I: ​Sturm und Drang​, 1953–1980​, 90
W​ASH​. U. L. R​EV​. 587, 588 (2017).
53. The decision to use Washington’s name as the lead plaintiff evoked the growing national commit- ment to
combat discrimination, and the happenstance that Alabama’s prison head shared Robert E.
Lee’s last name underscored that point. The State argued against application of the then-new
Rule 23 of the Federal Rules of Civil Procedure, and it lost before the three-judge court and
again at the U.S. Supreme Court. The Court concluded that the “State’s contentions that Rule
23 of the Federal Rules of Civil Procedure, which

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2020] ​The Puzzles of Prisoners and Rights ​111
Allen (for her minor, incarcerated son, Willie), Agnes Beavers (for
her minor son, Cecil McCargo), Johnnie Coleman, and Thomas E.
Houck. This group of “one white and five Negro citizens” brought the
lawsuit on behalf of all Ala- bama prisoners against the state’s
Commissioner of Corrections Frank Lee and many others.​54 ​State
statutes made it unlawful for “white and colored convicts to be
chained together or to be allowed to sleep together.”​55 ​The Alabama
pris- oners sought a declaration that under the Eighth and
Fourteenth Amendments, “Negro citizens, male and female” had the
right “not to be segregated . . . or otherwise subjected to racial
distinctions” when confined in the state prisons and county jails of
Judge Johnson’s opinion for a three-judge court rejected the claim that ra- cial
segregation violated the Eighth Amendment.​57 ​Johnson explained
that seg- regation was not “inhuman, barbarous or torturous
punishment.”​58 ​In contrast, the court held that organizing prisons by
race violated the Fourteenth Amend- ment guarantee of equal
treatment, even if “some isolated instances” could exist when prison
security and discipline required “segregation of the races for a limited period.”​59 ​The court ordered immediate desegregation in the

relates to class actions, was violated in this case and that the challenged statutes are not
unconstitutional are without merit.” Lee v. Washington, 390 U.S. 333, 333 (1968).
Many of the records of this case are available at the University of Michigan Law School’s Civil Rights Litigation
Clearinghouse website. Univ. of Mich. Law Sch., ​Case Profile: Washington v. Lee​, C.R. L​ITIG​.
C​LEARINGHOUSE​, (last visited Jan. 25, 2020).
In addition, I have drawn on materials from the collections of the papers of Chief Justice Earl
Warren (MSS52258, Box 650, Opinions—Per Curiam) [hereinafter “Chief Justice Warren
Papers”] and of Justice Byron White (MSS77264, Part I, Box 120, File 67-75) [hereinafter
“Justice White Papers”] from the Library of Congress and on the papers of Justice Abe Fortas
(MS 858, Box 60, File 1218) [hereinafter “Justice Fortas Papers”] and of Justice Potter Stewart
(MS 1367, Box 228, File 2524) [hereinafter “Justice Stewart Papers”] housed at the Sterling
Memorial Library, Manuscripts and Archives, Yale University.
54. Washington v. Lee, 263 F. Supp. at 328. 55. A​LA​. C​ODE ​tit. 45, § 52 (1958) (repealed 1975).
56. Washington v. Lee, 263 F. Supp. at 328. 57. ​Id. a
​ t 332. As noted, the Court had held in
Robinson v. California​, 370 U.S. 660 (1962), that the Eighth Amendment applied to the states.
Judge Johnson cited the decision in ​Washington v. Lee​, 263 F. Supp. at 332.
58. Washington v. Lee, 263 F. Supp. at 332. 59. ​Id. a
​ t 331. In its jurisdictional statement
seeking Supreme Court review, Alabama informed the Court that its prison population then was
“1546 white and 2510 Negro.” Appellate Petition, Motion and Filing, Lee v. Washington, 390
U.S. 333 (1968) (No. 75), 1967 WL 129475, at *7. According to 1960 census data, at that time,

Alabama’s population (totaling 3,266,740) was 70% white. ​See ​Campbell Gibson & Kay Jung,
Historical Census Statistics on Population Totals by Race, 1790 to 1990, and by Hispanic
Origin, 1970 to 1990, for Large Cities and Other Urban Places in the United States (​ U.S.
Census Bureau, Working Paper No. 76, 2005), The state
reported to the Court that one of the plaintiffs was a “Negro” from Georgia and that another was
a “white citizen . . . of Florida.” Appellate Petition, ​supra,​ at *6–7.
At the oral argument in the Supreme Court, Justice Black asked if the State conceded that its segregation
statute was unconstitutional. The attorney for Alabama said he was “not in a position to
concede” but spent no time defending de jure segregation. Transcript of Oral Argument at 1,
Lee v. Washington, 390 U.S. 333 (1968) (No. 75), The
State’s focus and much of the argument cen- tered instead on the authority of the plaintiffs to
represent people in both jails and prisons and on the remedy.

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112 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
farms,” youth centers, and prison hospitals and gave Alabama more
time to desegregate higher security facilities.​60
The next case chronologically in James’s Memorandum of Law was ​Gilmore
v. Lynch,​ a May 28, 1970, decision from a three-judge court in the
Northern District of California.​61 ​Two San Quentin prisoners, Robert
O. Gilmore Jr. and
Alabama insisted on the distinctive situations presented by local jails and on the need for prison
officials to have “reasonable discretion” to separate prisoners when security required it. ​Id. ​at
2–4, 5–6. Justice Marshall elicited the answer that the State planned to abolish segregation by
1969, and Chief Justice Warren obtained the answer that nothing barred the state from seeking
more time, if needed, from the district court. ​Id. a
​ t 20– 21. Charles Morgan, for the prisoners,
told the Court that the remedy had been shaped through the lens of the State’s needs. ​Id. ​at
The Supreme Court affirmed; the memoranda in the archives of the papers of Chief Justice Warren and of
Justices Fortas, Stewart, and White reflect some of the Justices’ qualms about desegregation
in the prison context. Justice White offered a “longer version” of a per curiam that included a
comment that the Court did not believe that the lower court “intended to prevent Alabama
officials from separating prisoners according to their race temporarily, or from segregating
particularly troublesome individuals, when required by consid- erations of security and
discipline,” and therefore, the order was “unexceptionable.” Memorandum of No- vember 14,
1967, signed B.R.W. at 2, Justice Fortas Papers, ​supra ​note 53.

Justice Marshall objected and said he could not “settle” for anything other than the initial short draft, as the
“only thing struck down” was the statute and all other prison rules remained in effect.
Memorandum of November 14, 1967, Justice Stewart Papers, ​supra n
​ ote 53. On November
16, 1967, Justice Marshall added that there was no motion in the record to clarify or modify the
district court order and included excerpts of the testimony of Commissioner Lee about the
state’s desegregation plans then underway. Memorandum to the Conference from T.M.,
November 16, 1967, at 1, 2–5, and 6, Chief Justice Warren Papers, ​supra n
​ ote 53. Justice
Marshall stated that whatever problems could arise should be brought to the district court. ​Id. ​at
6. Justice Harlan responded that he remained of the view that “the judgment below should not
be affirmed simpliciter,” which was why the case had been set for argument. Memorandum of
November 17, 1967, from J.M.H. re No. 75 - Lee v. Washington, February 5, 1968, Justice
Fortas Papers, ​supra ​note 53.
The result was both a brief per curiam and a concurrence that differed from the one Justice White had
suggested in November. The Court’s opinion stated in part:
This appeal challenges a decree of a three-judge District Court declaring that certain Alabama
statutes violate the Fourteenth Amendment to the extent that they require segregation of the
races in prisons and jails, and establishing a schedule for desegregation of these institutions. . .
. The remaining contention of the State is that the specific orders directing desegregation of
prisons and jails make no allowance for the necessities of prison security and discipline, but we
do not so read the “Order, Judgment and Decree” of the District Court, which when read as a
whole we find unexceptionable. Lee v. Washington, 390 U.S. at 333–34. Justice Black, joined
by Justices Harlan and Stewart, wrote in the concurrence that they wanted to
make explicit something that is left to be gathered only by implication from the Court’s
opinion. This is that prison authorities have the right, acting in good faith and in
particularized circum- stances, to take into account racial tensions in maintaining security,
discipline, and good order in prisons and jails. We are unwilling to assume that state or
local prison authorities might mistakenly regard such an explicit pronouncement as
evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s
prohibition of racial discrimination. ​Id. ​at 334.
60. Washington v. Lee​, 2
​ 63 F. Supp. at 333. Specifically, Judge Johnson ordered the commissioner to take
“necessary and appropriate steps to effect complete desegregation” within six months for
minimum- and medium-security prisons and within a year for maximum-security institutions. ​Id.​;
see also Y
​ A
​ CKLE​, ​supra n
​ ote 30, at 30.
61. Gilmore v. Lynch, 319 F. Supp. 105, 109 (N.D. Calif. 1970) (three-judge court), ​summarily aff’d​, 404 U.S.
15 (1971). The three judges were Circuit Judge Ben Duniway and District Judges Alfonso
Zirpoli and Albert Wollenberg. Judge Wollenberg first denied the plaintiffs’ motion to convene a
three-judge court, but the Ninth Circuit reversed. ​See ​Gilmore v. Lynch, 400 F.2d 228 (9th Cir.

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2020] ​The Puzzles of Prisoners and Rights ​113
John Van Geldern, sought class-wide relief from California’s rules

limiting legal materials available to prisoners. The judges described
“[r]easonable access to the courts” as a “constitutional imperative
which has been held to prevail against a variety of state interests.”​62
That court held that California’s regula- tions were unconstitutional
and that, despite additional costs, more materials had to be
February 18, 1970, is the date of the next decision—​Holt v. Sarver​,64
​ ​a class
action involving Arkansas’s prisons—that Worley James cited. To
understand ​Holt ​requires learning about the filings that preceded
and produced it. In 1965, three white prisoners, Winston Talley,
William Hash, and Vernon Sloan, filed handwritten petitions in the
Eastern District of Arkansas at the Pine Bluff Di- vision, which was
the closest federal court to Cummins Farm, where they and nearly
2,000 other men were incarcerated.​65
Like Siegel, Harp, and Meyer in Illinois in the 1940s and the ​Gilmore ​plain- tiffs
in California in the 1960s, these young men told the court that
prison offi- cials had violated their constitutional rights by blocking
their access to courts.​66 ​But unlike those other cases, the
handwritten petitions from the prisoners in Arkansas also alleged
that the state routinely used whipping (with a five-foot leather strap)
as its mode of discipline.​67
Chief Judge J. Smith Henley responded by appointing lawyers to represent
the three. In a path-breaking ruling, he recognized their right to
challenge the discipline imposed. But he wrote that federal judges
were to give prison officials “wide latitude and discretion” in deciding
prison discipline. 68
​ ​Chief Judge Hen- ley did not hold that whipping
was unconstitutional but did conclude that if whipping was to take
place, it had to be regulated.​69 ​His 1965 ruling resulted in what
Arkansas officials called the “​Talley ​Rules”—condoning the use of
the whip as long as written rules organized the process, prohibited
its summary

62. ​Gilmore,​ 319 F. Supp. at 109. The Supreme Court held the year before the ​Gilmore r​ uling that prisons
could not prevent prisoners from helping each other unless the prisons provided reasonable
legal assistance directly to prisoners. ​See ​Johnson v. Avery, 393 U.S. 483, 490 (1969). While
Bounds v. Smith,​ 430 U.S. 817 (1977), built on that proposition by requiring prison officials to
provide adequate law libraries or persons trained to use legal materials, the 1996 decision in
Lewis v. Casey​, 518 U.S. 343 (1996), required that, as a predicate matter, prisoners bringing
such claims had to show actual injuries from the lack of such legal help, ​id. ​at 349.
63. ​Gilmore,​ 319 F. Supp. at 111–12 (referencing Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), discussed
infra n
​ ote 134 and accompanying text).

64. 309 F. Supp. 362 (E.D. Ark. 1970). 65. ​See D
​ oug Smith, ​Stephens Relates How Prison
System Boon for Everyone​, A​RKANSAS ​G​AZETTE​, Jan. 3, 1965, at 15A; Jackson v. Bishop, 404
F. 2d 571, 573 (8th Cir 1968).
66. ​See ​Talley v. Stephens, 247 F. Supp. 683, 690 (E.D.
Ark. 1965). 67. ​Id. ​at 687. 68. ​Id. a
​ t 686. 69. ​Id. ​at 689.

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114 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
imposition, and directed that “the blows administered for a single
offense shall not exceed ten.”​70
Within short order, three more prisoners, William King Jackson, Lyle Ed- ward
Ernst, and Grady W. Mask, all in their early twenties and also at
Cummins Farm, filed another set of handwritten petitions. Like the
Talley p
​ laintiffs, they too were white and in prison for low-level
crimes. Alleging that they were whipped for “reasons” such as
leaving okra in the fields and that the ​Talley ​Rules were not being
followed, they again argued that whipping was unconstitu- tional.​71
Two other federal judges, Oren Harris and Gordon E. Young, sitting to- gether
in the consolidated cases, appointed lawyers. After a trial, the
judges re- iterated that whipping was not itself unconstitutional but
ordered more procedural protections.​72 ​Prisoners had to be able to
contest the charges and receive “an objectively reasoned,
dispassionate decision” about whether the punishment was
The reversal by the Eighth Circuit in ​Jackson v. Bishop (​ written by Harry
Blackmun, who soon thereafter joined the U.S. Supreme Court)
concluded that the “use of the strap in the penitentiaries of Arkansas
is punishment which, in this last third of the 20th century, runs afoul
of the Eighth Amendment.”​74 ​Then-Judge Blackmun explained that
regardless of what “precautionary condi- tions” were imposed,
whipping offended “contemporary concepts of decency and human
dignity and precepts of civilization which we profess to possess; and
. . . it also violates . . . standards of good conscience and

fundamental fair- ness.”​75
In 1969, more Arkansas prisoners filed claims arguing the unconstitution- ality
of prison conditions. Chief Judge Henley again appointed lawyers,
and Lawrence Holt became the lead plaintiff in a class action
asserting that confine- ment at Cummins Farm and at the Tucker
Intermediate Reformatory violated Eighth, Thirteenth, and
Fourteenth Amendment rights, in part because it pro- vided no
“meaningful rehabilitative opportunities.”​76 ​Henley rejected the involuntary servitude claim,​77 ​but he concluded that the conditions and
practices of

70. ​Id. a
​ t 688. 71. Jackson v. Bishop, 268 F. Supp. 804, 806 (E.D. Ark. 1967), ​vacated​, 404
F.2d 571 (8th Cir. 1968). 72. ​Id. ​at 815–16. 73. ​Id. 7
​ 4. ​Jackson,​ 404 F.2d at 579. 75. ​Id. ​76.
Holt v. Sarver, 309 F. Supp. 362, 364 (E.D. Ark. 1970). This decision is often referenced as
Holt II​, as it came after a more limited decision, ​Holt v. Sarver,​ 300 F. Supp. 825 (E.D. Ark.
1969). The U.S. Supreme Court reviewed both the remedy and the award of attorneys’ fees in
the Arkansas prison litigation in ​Hutto v. Finney,​ 437 U.S. 678 (1978).
77. James Gray Pope has argued that the Thirteenth Amendment aimed to prohibit all involuntary servitude
unless that work was specifically imposed as a punishment. ​See ​James Gray Pope, ​Mass
Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account,​ 94
N.Y.U. L. R​EV​. 1465 (2019).

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2020] ​The Puzzles of Prisoners and Rights ​115
Arkansas’s penitentiary system “amount[ed] to a cruel and unusual
punishment prohibited by the Eighth and Fourteenth
Amendments.”​78 ​Chief Judge Henley also held the racial segregation
imposed was unconstitutional.​79
The February 1970 ​Holt v. Sarver ​ruling was the first (as the opinion explained) in history to find an entire prison system unconstitutional.
As Chief Judge Henley explained, the prior whipping cases had
“involved specific prac- tices and abuses alleged to have been
practiced upon Arkansas convicts,” but ​Holt w
​ as “an attack on the
System itself. As far as the Court is aware, this is the first time that

convicts have attacked an entire penitentiary system in any court,
either State or federal.”​80
Worley James’s Memorandum cited another 1970 ruling, ​Sinclair v. Henderson​, issued in November by the Fifth Circuit and addressing
conditions on death row in Angola, Louisiana.​81 ​Billy Wayne Sinclair
alleged that the men held there had to “drink water . . . loaded with
rust,” and were “fed from a food cart that [was] usually filthy and
[that] numerous times insects, roaches, or human hair” were
found.​82 ​Sinclair reported that he was permitted only fifteen minutes
per day outside his cell for bathing, washing clothes, and “what little
physical exer- cise” he could have; he said that he never saw
The Fifth Circuit vacated the trial court’s rejection of the “petition in the nature
of a civil rights action” and remanded for consideration “on the merits.”​84 ​The appellate court reminded the trial judge that a civil rights
plaintiff was not obliged to exhaust state judicial remedies.​85 ​Citing
the Arkansas cases, the Fifth Circuit described the “allegations” as
going far “beyond matters . . . of prison discipline and
administration” and called for a decision on the merits about the
“extreme maltreatment.”​86
The 1971 decision James cited was ​Landman v. Royster,​ issued by Judge
Rob- ert Merhige in the Eastern District of Virginia and ruling on
behalf of a class headed by Robert Landman.​87 ​The judge detailed
how Landman’s “troubles” began when he wrote a letter to the local
newspaper objecting to twenty days

78. ​Holt,​ 309 F. Supp. at 365. 79. ​Id. a
​ t 381. 80. ​Id. ​at 365. 81. Sinclair v. Henderson, 435 F.2d
125 (5th Cir. 1970). 82. ​Id. a
​ t 126. 83. I​ d. 8
​ 4. ​Id. ​at 125–26. 85. ​Id. ​at 126. 86. ​Id. ​87. Landman
v. Royster, 333 F. Supp. 621 (E.D. Va. 1971). During the same year, prisoners in upstate New
York sought first to obtain relief through writing prison officials about the utterly oppressive
conditions and then briefly took over the correctional facility in Attica, New York. Because the
standoff resulted in the death of forty-three people, prisoners made vivid that the tragedies of
American prisons were not a story of the South alone. As the 1972 report on Attica put it, Attica
was not much worse or better than other prisons. Rather, “Attica [was] every prison; and every
prison [was] Attica.” A​TTICA​: T​HE ​OF​ FICIAL ​RE
​ W ​YO
C​OMMISSION ​xii (1972).

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116 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
in solitary confinement,​88 ​which meant “a reduced diet, rationalized
on the basis that the inmate is not working,” as well as “no outdoor
Yet more severe was confinement “in meditation,” where prisoners could not
“file suit” and could be put on bread-and-water rations​90 ​and
chained.​91 ​Landman had spent “266 days in solitary confinement
and 743 days on pad- lock,” which meant he could not get out of his
cell when other cells were opened.​92 ​Judge Merhige held that
Landman was punished because he had filed lawsuits and helped
others in doing so.​93
Judge Merhige also detailed the degradation of seventeen other prisoners
subjected to Virginia’s disciplinary system.​94 ​Merhige, noting that the
practices in Virginia were “prohibited by the American Correctional
Association,” de- scribed what Virginia did to people in its prisons:
“handcuffing to cell doors or posts, shackling so as to enforce
cramped position or to cut off circulation, . . . deprivation of sufficient
light, ventilation, food or exercise to maintain physical and mental
health, forcing a prisoner to remain awake until he is mentally exhausted, etc.”​95 ​The judge concluded that the state violated the
Eighth and Fourteenth Amendments by depriving prisoners of good
time and by placing them in horrid conditions in solitary
confinement.​96 ​Like several other judges, Merhige cited Judge
Blackmun’s decision in ​Jackson v. Bishop ​for the proposition that
“[t]he extent of the constitutional guaranty is not fixed by the
administra- tors’ budget or imagination.”​97
Two 1972 U.S. Supreme Court per curiam decisions, ​Haines v. Kerner a
​ nd
Cruz v. Beto,​ were on James’s list. The pair of decisions established
that unrep- resented prisoners’ filings, as well as those of other
lawyer-less litigants, were to be read liberally. Frances Haines, a
prisoner in the Illinois State Penitentiary in Menard, likewise was
authorized to proceed. On January 13, 1972, the Court held that,
“however inartfully pleaded,” Haines had stated a claim with his de-

88. ​Landman​, 333 F. Supp. at 633. Landman had helped some 2,000 prisoners and filed many lawsuits
himself. ​Id.​ Michael Millemann, who worked on the case as a student, described the Virginia
State Penitentiary as totally locked down and the prisoners as “confined in 120° cells for
weeks.” Michael Millemann, ​VA Prisoners Find Advocates in Early Prison Reformers​, 13 J.
N​AT​’L​ ​PR
​ OJECT​, Fall 1987, at 3, 4.
89. ​Landman,​ 333 F. Supp. at 628. The judge reported that Landman had been “technically eligible for parole
for six years” during which he was held in abysmal conditions. ​Id. ​at 633.
90. ​Id. a
​ t 630. 91. ​Id. a
​ t 631. 92. ​Id. a
​ t 633. 93. I​ d. a
​ t 634. 94. ​Id. a
​ t 634–43.
95. ​Id. a
​ t 648 (omission in original) (quoting A​M​. C​ORR​. A​SS​’​N​, ​supra n
​ ote
10, at 417). 96. ​Id. ​at 647, 653–54. 97. ​Id. ​at 648 (citing Jackson v. Bishop,
404 F.2d 571, 580 (8th Cir. 1968)).

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2020] ​The Puzzles of Prisoners and Rights ​117
scription of an alleged assault that he had “suffered while in
disciplinary con- finement and [the] denial of due process” before
being placed there.​98 ​That de- scription glossed over both the
allegations before the Court (which detailed placement of the
sixty-six-year-old, disabled prisoner in a dark cell for fifteen days​99​)
and the extensive arguments presented about the constitutionality
under the Eighth and Fourteenth Amendments of such in-prison
On March 20, 1972, the Supreme Court reversed the dismissals of the federal district court in Texas and of the Fifth Circuit in the case filed by
Fred A. Cruz, who had argued that Texas did not permit him, a
Buddhist, to practice his religion; moreover, prison officials put him
on a “diet of bread and water for two weeks” in solitary confinement
because he had shared materials about his religion with others.​101
While some members of the Court had planned to

98. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). The Court had appointed Stanley Bass at
the LDF to represent Francis Haines. Bass argued the case, in which he invoked Justice
Blackmun’s opinion in ​Jackson v. Bishop m
​ ore than once. Transcript of Oral Argument at 4–5,
99. Haines’s brief explained that he was “66 years old and 30% permanently disabled,” had been incarcerated since 1939, and was serving a “life sentence for burglary.” Brief for Petitioner,
Haines v. Kerner, 404 U.S. 519 (1972) (No. 70-5025), 1971 WL 133427 (July 15, 1972), at *3.
The brief described the “hole” in which he was confined as “dark,” that he had no soap or other
necessary hygiene items, and that food was limited to one meal a day plus bread morning and
night. ​Id​. at *4–5.

100. Both Haines’s brief and Illinois’s brief provided lengthy accounts of corrections practices and the case
law on the Eighth Amendment, Due Process, and in-prison discipline. Haines cited the U.S.
Bureau of Prisons’s Policy Statement 7400.5 (1966) calling for “quarters used for segregation
[to] be well ventilated, adequately lighted, appropriately heated and maintained in a sanitary
condition at all times.” ​Id​. at *16, n. 22. Further, the brief referenced an ongoing survey of
correctional facilities; his reply brief reported that of twenty-four responding states, all had
lighted cells and mattresses. Reply Brief of Petitioner, Haines v. Kerner, 404 U.S. 519 (1972)
(No. 70-5025), 1971 WL 133428 (Nov. 30, 1971) at *3. Illinois’s brief was likewise comprehensive in discussing the merits, as the State reviewed the history of the Eighth
Amendment, surveyed the law of “punitive segregation” in the federal courts, and defended the
treatment of Haines. Brief for the Respondents at 9–39, 41, 48–51, Haines v. Kerner, 404 U.S.
519 (1972) (No. 70-5025), 1971 WL 133738 (Sept. 4, 1971) at *9–39, 41, 48–51.
In a memorandum to the conference, Justice Blackmun described the two decisions on prison discipline he
had written as an appellate judge (including ​Jackson v. Bishop)​ and stated that Haines’s
allegations did not “impress [him] as being outrageous” because the confinement was fifteen
days and he had “a full meal at noon.” Memorandum from Harry Blackmun, Assoc. Justice,
U.S. Supreme Court 1–2 (Nov. 22, 1971) (on file with the Harry A. Blackmun Papers, Library of
Congress, MSSS4430, Box 143, File 70-5025). Justice Blackmun said he would not hold
“solitary confinement, per se, ... a violation of the Eighth Amendment.” ​Id. a
​ t 3. He described
himself as reluctant to “interfere with matters of prison administration and discipline” but also
worried about opening “the door to abuse.” ​Id. ​at 2 (“I dislike here the deprival of hygienic
facilities . . . . I dislike having the cells dark.”). He reported that he was “inclined to affirm,” even
though there were some “fringe matters” of concern. ​Id. ​at 3.
Chief Justice Warren Burger circulated a “draft” of what became the per curiam decision; he said it was
“essentially” what he had “read . . . at the Conference but with more of the evidence recited to
show the need for hearing and the inappropriateness for summary disposition.” Memorandum
to the Conference, Jan. 3, 1972, Justice Stewart Papers, ​supra n
​ ote 53, Box 258, File 3035.
Issued on January 13, 1972, the opinion stated that the “only issue” before the Court was the
sufficiency of the pleadings, concluded the complaint ought not to have been dismissed, and
“intimate[d] no view whatever on the merits.” ​Haines,​ 404 U.S. at 520–21. Justices Powell and
Rehnquist did not participate in the case. ​Id​. at 521.

101. Cruz v. Beto, 405 U.S. 319, 319 (1972) (per curiam). Information about the debate within the Court
comes from the papers of Justices Douglas, Stewart, and Powell. In an undated circulation,

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118 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
deny certiorari, Justice Douglas’s draft dissent, with modifications as
requested by Justice Powell, became the Court’s per curiam
reversal of the lower courts and returned the case for a hearing.​102
The five other cases in James’s Memorandum of Law all came from within the
Fifth Circuit. ​Williams v. Wainwright​, decided in June of 1972 and
brought by Johnnie Williams and three other Florida prisoners, was
about conditions in Florida. Vacating the trial court’s dismissal and
remanding,​103 ​the circuit cited ​Haines v. Kerner,​ ​Cruz v. Beto,​ and its
own rulings. The appellate court reminded the lower courts that
prisoners’ pleadings were to be read liberally, as the court ruled that
these prisoners had a right to a “hearing” or another “sort of factual
investigation” into whether the challenged practices fell outside of
“the scope of the broad official discretion permitted in connection
with the operation and administration of State prison systems.”​104
In July of 1972, the Fifth Circuit issued three more rulings, all of which told
lower courts that they had wrongly dismissed prisoners’ lawsuits.
John Bow- man, held in Alabama, alleged that he had not been
given proper medical care and that the prison had confiscated his
legal materials.​105 ​Troy C. Burroughs, confined in Florida, argued “a
multitude of alleged abuses involving inadequate food and improper
medical and dental treatment laced with overtones of racial
discrimination.”​106 ​Another Florida prisoner, Frank James Dennson,
challenged confinement in administrative segregation; the circuit
again instructed a district judge that the summary dismissal of the
complaint was wrong.​107

Douglas stated he would have granted certiorari and “summarily reverse[d] for findings of fact.”
See ​Cruz v. Beto, Mr. Justice Douglas, dissenting, at 1, William O. Douglas Papers, Box 1566,
File 71-5552, Library of Congress. That draft, with as-noted modifications requested by Justice
Powell, garnered enough of the Jus- tices to become the Court’s opinion. ​See ​Memorandum
from Justice Powell to Justice Douglas of March 1, 1972, with a handwritten note, “Thank you
for making the changes I suggested,” in Justice Douglas Papers. ​See also L
​ ewis F. Powell Jr.
Papers, Box 374, Folder 2, Washington & Lee School of Law, Scholarly Commons, Supreme
Court Case Files; Justice Stewart Papers, ​supra ​note 53, Box 256, File 3002.
The per curiam insisted that “persons in prison, like other individuals, have the right to petition the
Government for redress,” and the complaint stated a valid claim for religious discrimination.
Cruz​, 405 U.S. at 321–22. The Supreme Court precedents, affirming prisoners’ access to
federal courts for such claims, in- cluded ​United States v. Muniz,​ 374 U.S. 150 (1963), and
Cooper v. Pate​, 378 U.S. 546 (1964).

102. ​Cruz​, 405 U.S. at 322–23. Justice Rehnquist dissented because “the fact that the Texas prison system
offers no Buddhist services at this particular prison does not . . . demonstrate that his religious
free- dom [was] impaired.” ​Id. ​at 324 (Rehnquist, J., dissenting). Further, Justice Rehnquist
chided Fred Cruz for having filed other complaints and stated that the complaint could have
been dismissed as “frivolous.” ​Id. ​at 328.
103. Williams v. Wainwright, 461 F.2d 1080, 1081 (5th Cir. 1970) (per
curiam). 104. ​Id. a
​ t 1080. 105. Bowman v. Hale, 464 F.2d 1032,
1032–33 (5th Cir. 1972) (per curiam). 106. Burroughs v. Wainwright, 464
F.2d 1027, 1028 (5th Cir. 1972) (per curiam). 107. Dennson v. Tomkins,
464 F.2d 1033 (5th Cir. 1972) (per curiam).

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2020] ​The Puzzles of Prisoners and Rights ​119
The thirteenth case in James’s Memorandum of Law was ​Newman v. Alabama​, which brings us back to Alabama and to Judge Johnson.​108
(The ​Pugh ​and ​James c​ ases were later consolidated with the
Newman ​litigation.)​109 ​N.H. New- man “and others” had alleged
inadequate medical care.​110 ​In 1972, Judge John- son ruled that the
“failure of the Board of Corrections to provide sufficient medical
facilities and staff to afford inmates basic elements of adequate

medical care constitutes a willful and intentional violation of the
rights of prisoners guaranteed under the Eighth and Fourteenth
Amendments.”​111 ​Four years later, in 1976 when the U.S. Supreme
Court reached the question of prison health care, its opinion echoed
the views of Judge Johnson. In ​Estelle v. Gamble​, the Court held
that “deliberate indifference to serious medical needs” violated the
Eighth Amendment.​112
This genealogy of the six years when prisoners’ rights law emerged makes
plain the reasons to celebrate the work of Judge Johnson. The first
decision in the set was Johnson’s 1966 prison desegregation
decision, and the last was his 1972 health care ruling. Judge
Johnson is rightfully recognized as one of the great jurists to
understand the imperative of prison reform.
What this account also reflects is that prisoners need to be brought into the
pantheon of criminal justice innovators. Caliph Washington, Winston
Talley, William King Bishop, Robert Landman, Billy Wayne Sinclair,
Lawrence Holt, Worley James, Jerry Lee Pugh, and many others
were theorists of the law of

108. Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972). The Circuit reviewed aspects of this and the
related Alabama prison litigation in a series of decisions. ​See ​Newman v. Alabama, 522 F.2d
71 (5th Cir. 1975); Newman v. Alabama, 559 F.2d 283, 292 (5th Cir. 1977), ​cert. denied,​ 438
U.S. 915 (1978); ​see also ​Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982). For discussion
of the case’s evolution, ​see infra ​notes 109, 255.
109. S​ee ​Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982). Judge Gerald Bard Tjoflat’s 1982 deci- sion
for the Circuit provided a brief account of what was then the “eleven year history” of the
litigation. ​Id. a
​ t 1315. As he explained, Judge Johnson decided ​Newman ​first in 1972 and
decided ​Pugh v. Locke ​and ​James v. Wallace i​ n 1976. ​Id. T
​ he rulings that conditions in
Alabama violated prisoners’ constitutional rights were af- firmed “with modifications” in a
consolidated appeal. ​See Newman,​ 559 F.2d at 292.

Thereafter, prisoners alleged that the consent decree was being violated and that the overcrowding remained
unabated. Judge Johnson agreed and concluded that release of some prisoners was required.
The Fifth Circuit rejected his remedy as “overreaching” and held that a less intrusive remedy
setting caps on county jail populations was proper, rather than “entangling the district court in
the administration of the prison and parole systems.” ​Newman,​ 683 F.2d at 1320. As Yackle
recounted, by then Judge Johnson had moved to the Fifth Circuit and Judge Varner was
presiding at the trial level on the Alabama prison litigation. Y​ACKLE​, ​supra ​note 30, at 184–85.
In the interim, the U.S. Supreme Court had decided ​Rhodes v. Chapman,​ 452 U.S. 337 (1981),
and concluded that double celling was not unconstitutional and cautioned lower courts to defer
to prison officials again. ​See infra ​notes 152, 176, 264 and accompanying text. Yackle detailed
the argument in ​Newman,​ ​see supra ​note 30, at 215–19, and the aftermath of the judgment,
resulting in what Yackle termed “paralysis” and the retreat of the federal court. ​Id. a
​ t 222–55.
110. ​Newman​, 349 F. Supp. at 280. 111. ​Id.
at 285–86. 112. Estelle v. Gamble, 429 U.S.
97, 106 (1976).

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120 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
punishment and analysts of prison practices. They put into motion
new argu- ments about what the state cannot do to people who (to
borrow a phrase from the Thirteenth Amendment) have been “duly
This cohort of regular prisoners, who sat inside awful facilities and
were subjected to unspeakable mistreatment, believed in law and
courts and in con- straints on sovereign power. They brought their
experiences and their insights to judges who often linked them to
lawyers who joined them in insisting that law had to be deployed to
stop egregious treatment of incarcerated individuals. The lawyers, in
turn, drew on popular mobilizations that supported organ- izations
such as the LDF and the ACLU. As Judge Johnson’s appointments
demonstrate, law schools and law firms played important roles.
Further, Con- gress made key contributions, including when, in
1976, it opened up funding streams through a statute permitting civil
rights claimants, if successful, to re- coup fees from defendants.​113
Indeed, that statute’s first analysis in the Supreme Court came in
1978 in the context of the ​Holt ​litigation; the Court affirmed that the
State of Arkansas could be liable for fees and approved Chief Judge
Hen- ley’s remedy of a thirty-day cap on solitary confinement.​114 ​In
1980, Congress added more legal horsepower by authorizing the
U.S. Department of Justice to represent “institutionalized persons”
held in unlawful conditions.​115
The impact of the system-wide decisions by Judge Henley, Judge Johnson,
and others can be seen from a list compiled in the late 1980s by the
ACLU’s National Prison Project of some three dozen jurisdictions in
litigation to ad- dress overcrowded conditions.​116 ​Those cases reflect
that litigants, lawyers, and judges were rereading the U.S.
Constitution to recognize its application to pris- ons, which

reoriented the work of federal judges.​117 ​Because of their insistence
and persistence, law no longer permits prisoners to be whipped,
starved, or denied all medical care.
Amidst the tragic conditions in today’s United States prisons, one could miss
what was accomplished. Before the 1960s, prison administrators
had un- bridled power that was, at times, exercised in gruesome
ways that left people in filth and violence. And law was silent.
Today, albeit unevenly and insufficiently implemented, law requires
prisons to provide safety, sanitation, and some health care. Indeed,
in the United States, prisons are one of the few government-mandated services still standing.

113. ​See C
​ ivil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (codified at 42
U.S.C. § 1988 (2018)).
114. Hutto v. Finney, 437 U.S. 678, 680–81 (1978), discussed ​infra ​note 262 and
accompanying text. 115. Civil Rights of Institutionalized Persons Act of 1980, Pub. L. No.
96-247, 94 Stat. 349. 116. ​See Status Report: State Prisons and the Courts,​ 13 J. N​AT​’L​
​ OJECT​, Fall 1987, at 24, 24; ​see also ​Alexander A. Reinert, ​Eighth Amendment
Gaps: Can Conditions of Confinement Litigation Benefit from Proportion- ality Theory?​, 36
​ B​. L.J. 53, 71–73 (2009).
117. ​See, e.g.​, Theodore Eisenberg & Stephen C. Yeazell, ​The Ordinary and the Extraordinary in Institutional
Litigation,​ 93 H​ARV​. L. R​EV​. 465 (1980); Judith Resnik, ​Managerial Judges,​ 96 H​ARV​. L. R​EV​.
374 (1982).

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2020] ​The Puzzles of Prisoners and Rights ​121
In the 1960s and 1970s, prisoners, lawyers, and judges succeeded in identifying practices that had been seen as “normal” and named them
“unconstitu- tional.” That shift occurred not only in prisons but also
in many arenas of government action. School desegregation was an
exemplar that made plain the need for sustained federal action to

interrupt—as it tried to reform—systemic discrimination.
But more needs to be explained about ​how ​American constitutional law moved
inside prisons. The Eighth Amendment prohibits “cruel and unusual
punishments.”​118 ​What Jerry Pugh, Worley James, and other
prisoners re- counted was indeed cruel, but their lawsuits also
showed that their experiences were neither unusual nor a departure
from longstanding practices. Beatings, isolation, starvation, neglect,
and limited or no medical care were commonplace experiences in
American prisons in the 1960s and 1970s and had been during the
century before.
Indeed, the litigating structure of many cases as class actions made that point.
The lawyers whom Judge Johnson enlisted to help James and Pugh
shifted the focus from individual claims to problems of all Alabama
prison- ers.​119 ​To convince judges to certify class actions requires
demonstrating that individuals share enough in common so that
named plaintiffs adequately repre- sent others, similarly situated.
What prisoners in Alabama had in common, as Judge Johnson
detailed in his 1976 decision, were “horrendously over-

118. U.S. C​ONST​. amend. VIII. A large body of commentary addresses the history and disagrees about the
implications of this clause, drawn from the English Bill of Rights of 1689. Questions include the
sources to interpret the meaning of “cruel” and of “unusual,” the interaction of these words, the
baselines by which to assess either, the relevance of judicial innovation in punishment as
contrasted with legislative authorization, and the application of these precepts to prison
officials. ​See, e.g.​, Margo Schlanger, ​The Constitutional Law of Incarceration, Reconfigured,​
103 C​ORNELL ​L. R​EV​. 357 (2018); Alexander A. Reinert, ​Reconceptualizing the Eighth
Amendment: Slaves, Prisoners, and “Cruel and Unusual” Punishment​, 94 N.C. L. R​EV​. 817
(2016); A​KHIL ​RE
​ ED ​AM
​ ​UN
​ ​L​IVE ​BY
​ ​133 (2012); Meghan J. Ryan, ​Does the Eighth Amendment
Punishments Clause Prohibit Only Punishments That Are Both Cruel ​and ​Unusual?,​ 87 W​ASH​.
U. L. R​EV​. 567 (2010); John F. Stinneford, ​The Original Meaning of “Unusual”: The Eighth
Amendment as a Bar to Cruel Innovation​, 102 N​W​. U. L. R​EV​. 1739, 1749–51, 1778–817
(2008); An- thony F. Granucci, ​“Nor Cruel and Unusual Punishments Inflicted:” The Original
Meaning​, 57 C​ALIF​. L. R​EV​. 839, 839–42 (1969).
119. In 1975, Judge Johnson consolidated the ​Pugh ​and ​James ​cases and tried them together, during a
week-long trial. Pugh v. Locke, 406 F. Supp. 318, 321 n.1 (M.D. Ala. 1976) (decided with
James v. Wallace, 406 F. Supp. 318 (M.D. Ala. 1976) (No. 74-203-N)); ​see also ​Y​ACKLE​, ​supra
note 30, at 58.

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122 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
crowded,” “filthy,” understaffed, and unsafe conditions, in which
“rampant vi- olence” was “widespread.”​120 ​One area where more
than 200 men were housed had only “one functioning toilet.”​121
Reading what Judge Johnson found as facts brings this point uncomforta- bly
home. He wrote that in Alabama’s prisons, the windows were
broken and unscreened, creating a serious problem with
mosquitoes and flies. Old and filthy cotton mattresses lead to the
spread of contagious diseases and body lice. Nearly all inmates’
living quarters are inadequately heated and ven- tilated. The
electrical systems are totally inadequate, exposed wiring poses a
constant danger to the inmates, and insufficient lighting results in
eye strain and fatigue.​122

In addition, violence was widespread, as sadly illustrated by Judge Johnson’s description of the testimony provided by a twenty-year-old
prisoner. That man had been “raped by a group of inmates on the
first night he spent in an Alabama prison. On the second night he
was almost strangled by two other inmates who decided instead
that they could use him to make a profit, selling his body to other
By 1976, when Judge Johnson issued his decision, it was not only prisoners
and some judges who thought such conditions violated the Eighth
Amend- ment. The defendants in Alabama—under the leadership of
a recently elected Attorney General—agreed.​124 ​As Judge Johnson
recounted, the defendants’

120. ​Pugh,​ 406 F. Supp. at 323–26. Painfully graphic detail came from Matthew Meyers, who worked on
James ​for the ACLU. He described going to Draper Correctional Center and finding “dozens
upon dozens of old, helpless men, many in wheelchairs, incontinent or bedridden, unable to

care for themselves and jammed into squalid, dilapidated living quarters which could only be
described as a human death trap.” Mat- thew L. Myers, ​12 Years After ​James v. Wallace, 13 J.
N​AT​’L​ ​PR
​ OJECT​, Fall 1987, at 8, 8. He then found “the doghouse,”
a concrete building with no windows and a solid front door with eight cells, each about the size
of a small door. This windowless concrete building and the cells in it had no lights, no
ventilation, no toilets, no furniture, no beds, no running water, and no sinks or showers. ​Id. a
​ t
8–9. No guards were in the building, and cells had five to six prisoners, put there for violating
minor rules like “talking back” to a guard. ​Id. ​at 9. 121. ​Pugh​, 406 F. Supp. at 323. 122. ​Id. 1
​ 23.
Id. ​at 325; ​see also Y
​ A
​ CKLE​, ​supra n
​ ote 30, at 81–83 (providing this prisoner’s courtroom testimony). ​124. William J. (“Bill”) Baxley II was Alabama’s attorney general from 1971 to 1979,
​Pugh v. Locke w
​ as litigated and decided. Decades later, when he was
during the time when
asked to identify the problem that had “convinced him that the state’s prisons could not be
defended,” former Attorney General Baxley re- sponded, “It wasn’t ​a p
​ roblem. It was everything
. . . . The conditions there were shocking.” Rick Har- mon, ​Prisons in Peril: Alabama Trial Had
Huge Impact on U.S. Prisons​, M​ONTGOMERY ​A​DVERTISER​, Sept. 15, 2013, at 9A. Baxley stated,
“It was clear we were defending an indefensible practice . . . . After we saw the enormity of the
problem, we just conceded.” ​Id​. However, Baxley identified a “root problem,” which, he
explained, “was the state not putting any money into the system . . . . [T]he state simply refused
to provide adequate public funding for prisons.” ​Id. ​For commentary on Baxley’s work in
relationship to that of Judge Johnson, see Kenneth M. Rosen & Hon. W. Keith Watkins, ​Justice
Delayed, Justice Delivered: The Birmingham Sixteenth Street Baptist Church Bombing and the
Legacy of Judge Frank Minis Johnson, Jr.​, 71 A​LA​. L. R​EV​. 560 ( 2020).

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2020] ​The Puzzles of Prisoners and Rights ​123
lead lawyer made “the admission . . . in open court, that the
evidence conclu- sively established aggravated and existing
violations of” prisoners’ Eighth Amendment rights.​125
For that proposition to have become the law required freeing the
Eighth Amendment from its text. As Judge Johnson explained in
both his 1974 deci- sion in ​James v. Wallace ​and his 1976 ruling in
Pugh v. Locke​, the “content of the Eighth Amendment” was not
“static but ‘must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.’”​126 Those
words come from ​Trop v. Dulles​, a 1958 decision of the U.S.
Supreme Court, which held unconstitutional a federal statute
imposing the punishment of denationalization for a “native-born

American” who had escaped for less than a day from an Army
stockade during the war; charged with desertion, he was convicted
in a military court martial​.127
​ Chief
Justice Warren, writing for a
plurality, concluded that the Eighth Amendment’s “basic concept”
was “noth- ing less than the dignity of man.”​128 ​This punishment was
barred because it entailed the “total destruction of the individual’s
status in organized society. . . . [T]he expatriate has lost the right to
have rights.”​129
Yet there are important distinctions between whipping, denationalization, and
what had happened to prisoners like Jerry Pugh, Worley James,
and Law- rence Holt. In 1968, when the Eighth Circuit ruled
whipping unconstitutional, Arkansas was an outlier. Almost all states
had abandoned the official use of corporal punishment in prisons,
and the 1966 ​Manual of Correctional Standards​, the official
publication of the American Correctional Association, had likewise
rejected its use.​130 ​As for denationalization, Chief Justice Warren
explained in ​Trop ​that the “civilized nations of the world” were in
“virtual unanimity that statelessness” was not a punishment to be
imposed for a crime.​131 ​In contrast,

125. ​Pugh​, 406 F. Supp. at 322. 126​. J​ ames v. Wallace, 382 F. Supp. 1177, 1180 (M.D. Ala.
1974); ​Pugh​, 406 F. Supp​. a
​ t 328. Both opinions quoted ​Trop v. Dulles​, 356 U.S. 86, 101
(1958). These were the terms that Judge Blackmun also used in holding whipping
unconstitutional in ​Jackson v. Bishop​, 404 F.2d 571, 579 (8th Cir. 1968).
127. 356 U.S. at 87. Chief Justice Warren described Albert Trop as having walked away from a stock- ade in
Casablanca, where he had been confined for violating military rules. He escaped but was
picked up and returned by an Army truck, so that the “desertion” was less than a day. ​Id​. at
128. ​Id. a
​ t 100. Warren referenced ​Weems v. United States,​ 217 U.S. 349 (1910), a decision that had held
punishment “of 12 years in irons at hard and painful labor imposed for the crime of falsifying
public records” to be excessive and “unusual in its character.” ​Trop​, 356 U.S. at 100.
129. ​Trop,​ 356 U.S. at 101–02. The decision did not cite Hannah Arendt’s book, ​The Origins of
the Totalitarian State,​ published in 1951, but the words echo the discussion of the harms of
fascism under Hitler and Stalin. An important resource for this decision was a note written by
Stephen Pollak while he was a student at Yale Law School. ​See S
​ tephen Pollak, Note, ​The
Expatriation Act of 1954​, 64 Y​ALE ​L.J. 1164 (1955). 130. James Bennett, who had directed the
Federal Bureau of Prisons, termed whipping “barbaric.” ​See Jackson​, 404 F.2d at 575. The
court also noted that other corrections officials had abandoned corporal pun- ishment. ​Id. a
​ t
580. ​See also ​AM
​ ​. C​ORR​. A​SS​’N
​ ​, ​supra n
​ ote 10, at 559.

131. ​Trop,​ 356 U.S. at 102. For the history of its use and a concern that denationalization is returning as a
punishment, see generally P​ATRICK ​WE
​ IL​, T​HE ​SO

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124 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
beatings, terrible food, violence, and no medical care—the
complaints in ​New- man,​ ​James​, and ​Pugh,​ as well as in ​Holt v.
Sarver ​and dozens of other cases—were commonplace.

In short, as Chief Judge Henley had noted in 1970 in ​Holt,​ the issue was “the
System,” which he found to “amount to a cruel and unusual
punishment” because it was “characterized by conditions and
practices so bad as to be shock- ing to the conscience of
reasonably civilized people.”​132 ​That holding, like the rulings of
Judge Johnson, required rereading the Eighth Amendment to
author- ize prisoners to enforce limits on the sovereign power to
determine the metes and bounds of confinement. Doing so entailed
a rejection of the “usual” as the metric for what was unconstitutional
Moreover, the Eighth Amendment was not the only part of the Constitu- tion
reinterpreted to do work inside prisons. First Amendment principles
se- curing rights to “petition for redress” served as the springboard
(subject to security concerns) for access to courts, legal
correspondence, and books.​134 ​The Free Exercise Clause protected
prisoners’ religious practices.​135 ​Indeed, Black Muslims were
plaintiffs in several 1960s and 1970s cases, as prison officials in
many states targeted them.​136 ​Moreover, the Fourteenth
Amendment’s equal protection guarantees propelled the
desegregation of prisons in a line of cases Judge Johnson began in
1966 and the U.S. Supreme Court reiterated when de- ciding
Johnson v. California i​ n 2005.​137
Another resource was the Due Process Clause of the Fourteenth Amendment, prohibiting states from depriving individuals of “life, liberty, or

​ PUBLIC ​(2013); Patrick Weil, ​Denaturalization and
Denationalization in Compari- son (France, the United Kingdom, the United States)​, 43 P​HIL​. &
S​OC​. C​RITICISM ​417 (2017). In ​Perez v. Brownell​, 356 U.S. 44 (1958), decided the same day as
Trop​, the Court upheld the congressional sanction of denaturalization for a U.S. citizen who
had voted in a foreign political election.
132. Holt v. Sarver, 309 F. Supp. 362, 372–73 (E.D. Ark. 1970). As noted, this case is often termed ​Holt II,​
because in 1969, Chief Judge Henley had ruled on some of the issues but not in that
comprehensive a form. ​See ​Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969).

133. For example, in ​Haines v. Kerner,​ Illinois provided a lengthy disquisition on how history validated its
treatment of prisoners and why putting a person in a dark cell and limiting food and bedding did
not violate the Eighth Amendment. The State not only garnered materials about the forms of
punishment at the founding but also provided long lists of cases in which lower federal courts
had, in the years before 1972, rejected challenges to similarly degrading and harmful
conditions. ​See B
​ rief for the Respondents at 5, 7–27, 11 n.7, 13 nn.10–11, 14 n.12, 16 n.17, 17
n.18, 21 n.19, 24 nn.21–22, 35 nn.25–26, 36–39, 36 n.28, 51, Haines v. Kerner, ​supra ​note
134. Younger v. Gilmore, 404 U.S. 15 (1971), ​aff’g ​Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970).
Protection also came from the Constitution’s prohibition on suspension of the writ of habeas
corpus. ​See Ex parte ​Hull, 312 U.S. 546 (1941).
135. ​See, e.g.​, Thornburgh v. Abbott, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987); Pell v.
Procunier, 417 U.S. 817 (1974); Procunier v. Martinez, 416 U.S. 396 (1974).
136. ​See, e.g.​, Sostre v. Rockefeller, 312 F. Supp. 863, 869 (S.D.N.Y. 1970), ​aff’d in part, rev’d in part sub
nom. ​Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971); for a discussion of ​Sostre​, see ​infra
notes 219, 220 and accompanying text. ​See generally K
​ NFINEMENT ​(2018).
137. 543 U.S. 499

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2020] ​The Puzzles of Prisoners and Rights ​125
without due process of law.”​138 ​Many of the prisoners’ complaints
that Worley James cited, and which I detailed above, entailed
terrifyingly arbitrary decisions that resulted in a host of in-prison
punishments, including whipping and solitary confinement. Yet,
given that prisoners had received some process when they were
convicted or pleaded guilty and were sentenced, judges asked
whether, once incarcerated, prisoners had rights to procedural

protections. Did incarcer- ated people retain “liberty” or “property”
interests that could not be deprived without fair procedures?
Questions about the sources of liberty and of property were being asked
inside and outside the context of prisons. In the 1960s, law
professor Charles Reich wrote an article called ​The New Property,​
in which he argued that govern- ment created a host of entitlements
though contracts, licenses, and employ- ment. Reich argued that
through a variety of means, including statutes (such as authorizing
officials to issue driver’s and professional licenses or to fund welfare
benefits), governments created forms of property that the state
could not arbi- trarily withdraw.​139 ​In 1970, in a case challenging the
termination of welfare benefits, the U.S. Supreme Court agreed and
required New York to provide a prior oral hearing before ending
funds for welfare recipients.​140
In 1974, prisoners from Nebraska successfully made the analogy that the
statutory grant of “good time” that reduced the length of sentences
was a kind of interest that the Fourteenth Amendment protected.​141
The Court concluded that, when prison staff punished prisoners by
revoking good time credits, the prison had to provide prisoners with
an opportunity to be heard and ways to present evidence on their
own behalf.​142
Thus, by the time Judge Johnson decided the ​Pugh a
​ nd ​James ​class action in
1976, he could rely on Supreme Court law recognizing that the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment had a role to play in prisons, as did the Eighth
Amendment. His decisions articulated fair treat- ment principles and
remedies that emerged from a blend of constitutional pre- cepts, as
he concluded that prisons could not impose “arbitrary and
capricious treatment.”​143

138. U.S. C​ONST​. amend. XIV, § 1. 139. Charles A. Reich, ​The New Property​, 73 Y​ALE ​L.J. 733
(1964). Exploration of Reich’s many contri- butions are provided in the ​Yale Law Journal’​ s
tribute published in 2020 after his death. ​See ​Collection, ​A Tribute to Charles Reich,​ Y​ALE
L.J.F. (2020),
140. Goldberg v. Kelly, 397 U.S. 254 (1970); ​see also ​Judith Resnik, ​The Story of ​Goldberg​: Why This Case
Is Our Shorthand​, ​in C
P​ROCEDURE ​C​ASES ​473 (Kevin M. Clermont ed., 2d ed. 2008).
141. Wolff v. McDonnell, 418 U.S. 539, 556–58 (1974). Majorities and dissents debated the sources of liberty,
and subsequent decisions cabined this ruling by focusing on the release from prison—and
hence the liberty—that good time credits produced.
142. ​Wolff​, 418 U.S. at 570–72. 143. Pugh v. Locke,
406 F. Supp. 318, 330 (M.D. Ala. 1976).

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126 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
Judge Johnson announced the principle that prison conditions could not be
“so debilitating that they necessarily deprive inmates of any
opportunity to rehabilitate themselves, or even to maintain skills
already possessed.”​144 ​A prison could not “impede” prisoners’ “ability
to attempt rehabilitation, or simply to avoid physical, mental or social
deterioration.”​145 ​But, as I discuss in the next sections, Judge
Johnson’s articulation of constitutional protections against
debilitation did not fare well in the appellate courts,​146 ​nor have they
materialized in the lives of many people held today in U.S. prisons.
No account of prisons and jails in the contemporary era can have a celebratory tone,​147 ​especially in light of the last years of litigation about
the lack of safety in Alabama’s prisons.​148 ​The prisoners who went
to court had a profound impact not just on doctrine but also on how
prisons today are run. Yet in their wake, the question remains about
why, given that prisoners have become con- stitutional
rights-holders, prisons remain miserable.
As I detail below, law and politics limited the efforts to rethink the practices of
punishment in prisons. The embrace of retributivist social policies
fueled increased prosecutions, while the Court limited the
application of the Eighth and the Fourteenth Amendments to
prisoners. The Court refused to constrain prison overcrowding
despite arguments that the intense density was cruel and unusual
punishment. Further, the Court crafted a line of Fourteenth Amendment due process doctrine that distinguished between “typical”
conditions in prisons, left largely to the unfettered discretion of

prison officials, and “atypi- cal” conditions, for which some
protection against arbitrary decisions was re- quired. ​Moreover, as I
elaborate in Part V, prisoners and judges such as Frank Johnson
understood that the U.S. Constitution requires more than
subsistence warehousing of people convicted of crimes. Amidst the
squalor of conditions in the 1960s and 1970s, they saw that states
had affirmative obligations to pre-

144. ​Id. 1
​ 45. ​Id. T
​ he Fifth Circuit reversed in part the requirements for rehabilitation programs.
See ​Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977); ​infra ​notes 255, 260 and
accompanying text.
146. ​See Newman​, 559 F.2d 283. 147. ​See, e.g.​ , H​OMER ​V​ENTERS​, L​IFE AND ​D​EATH IN ​R​IKERS
I​SLAND ​(2019). 148​. See K
​ atie Benner, ​Plans for Alabama’s Deadly Prisons ‘Won’t Fix the
Horrors,​ ​’ ​N.Y. T​IMES ​(Jan. 31, 2020), The inadequate responses and safekeeping of people with mental illness is chronicled in ​Braggs v. Dunn​, 257 F.
Supp. 3d 1171 (M.D. Ala. 2017), and ​Braggs v. Dunn​, 367 F. Supp. 3d 1340 (M.D. Ala. 2019).
Families of individuals who died in prison in 2019 filed a lawsuit in 2020. ​See C
​ omplaint, Head
v. Dunn, No. 2:20-CV-132 (M.D. Ala. Feb. 24, 2020).

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2020] ​The Puzzles of Prisoners and Rights ​127
vent debilitation. Whether a constitutional right to rehabilitation
exists is dis- tinct from the proposition that, in constitutional
democracies, governments cannot set out to cause deterioration as
a purpose of their punishment.
Even as my focus has been on litigation, judges are never solo actors. In the
decades after Pugh and James sought relief, the overcrowding of
facilities of which they and many others complained became all the
more acute. The number of people held in prison, which had been
relatively constant for several decades, began its dramatic rise in
the 1980s through initiatives (a “war on drugs” and a “war on crime”)

that produced a flood of prosecutions.​149
As claims that “nothing works” gained sway, legislatures enacted harsher
sentencing laws that cut off judicial discretion and mandated long
minimum sentences for certain crimes. Lifetime incarceration came
after repeated felonies (“three strikes”), even when minor thefts
were involved. More prosecutions, longer sentences sometimes
predicated on guidelines, mandatory minimum sentences, the
elimination of parole in the federal system as part of “truth in
sentencing,” and the loss of release opportunities meant that more
people were in prison for long periods of time. Even with the
subsequent calls for reform, we continue to live in an age of
“hyper-incarceration” and of “mass incarcera- tion.”​150 ​Lawsuits
(including litigation ongoing in Alabama​151​) document that prison
overcrowding undercuts whatever efforts are made to comply with
state health codes, correctional standards, and federal court
Just as filth and whipping are not intrinsic to incarceration, overcrowded
prisons are also political and legal choices. Constitutional law could
have im- posed significant constraints, but instead, the U.S.
Supreme Court was per- suaded to cut back on judicial oversight
and to permit confinement of individuals in spaces that had not been
designed for the number of people crammed in. And again, the
constitutional law of prisons cannot be read in a vacuum but always
needs to be placed in a broader framework. As the compo- sition of
the federal judiciary changed, the courts retreated from engagement
with the needs of major segments of the population—from school
children to consumers, employees, and prisoners. Under a Supreme
Court populated by appointments by President Reagan and his
successors, support for class actions, structural injunctions, and
other civil rights remedies waned. And, as I detail below, the Court’s
approach mirrored and interacted with shifts in legislation.
A pivotal decision about prisoners came in 1981 when, in ​Rhodes v.
Chapman​, the Supreme Court permitted what is politely termed
“double celling” but really

149. ​See generally M
150. Loïc Wacquant, ​Class, Race & Hyperincarceration in Revanchist America​, 139 D​AEDALUS ​74 (2010);
​ W ​J​IM ​CR

C​OLORBLINDNESS ​(2010). ​151. ​See supra n
​ ote 148 and ​infra n
​ otes 230, 231, 236 and
accompanying text.

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128 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
means forced long-term intimacy among strangers put in
overcrowded jails and prisons.​152 ​To understand the arguments
about the use of prison space, some background on prison design
is necessary.
In the eighteenth and nineteenth centuries, prison administrators debated
whether communal or solitary cells were better for bringing about
prisoners’ repentance and reform. By the second half of the
twentieth century, standards promulgated by the American
Correctional Association recommended a mini- mum amount of
space (at least sixty square feet per person) and the use of single
celling to promote wellbeing and to prevent violence and the spread
of disease.​153
As jail and prison populations grew faster than new construction, prisons
routinely exceeded the number of people for which they were
designed. To expand “capacity,” prisoners were double- or
triple-celled. The U.S. Supreme Court chose to address the legality
of doing so first in 1979 in a case, ​Bell v. Wolfish,​ brought by federal
pretrial detainees held in New York City.​154
The case did not arise under the Eighth Amendment because the Court has
reasoned that it does not apply to pretrial detainees, who cannot be
“punished” before they are convicted.​155 ​Yet treating detainees
worse than convicted pris- oners makes no common or legal sense.
The Court has therefore concluded that people in jail are shielded
from abysmal conditions by virtue of the Fifth and Fourteenth
Amendments’ protection against deprivation of “life, liberty, or
property, without due process of law”​156​—interpreted to create a
substantive entitlement not to be punished before conviction.
Yet even as pretrial detainees may be sympathetic plaintiffs, B
​ ell v. Wolfish
did not have evocative facts. Unlike the nauseating conditions that

Judge John- son and Chief Judge Henley detailed in old facilities in
Alabama and Arkansas, the federal Metropolitan Correctional
Center (MCC) in New York had been built in 1975. Justice
Rehnquist, writing for the Court, explained that there were “no
barred cells, dank, colorless corridors, or clanging steel gates.”​157
Rather, the MCC had the “most advanced and innovative features
of modern design of detention facilities.”​158
However modern, the plan had been for the building to hold no more than 499
people.​159 ​But single bunks were replaced by doubles to pack more
152. Rhodes v. Chapman, 452 U.S. 337 (1981). ​Rhodes w
​ as cited by the circuit in ​Newman v. Graddick​, 740
F.2d 1513, 1521, 1525 (11th Cir. 1984), and, as Yackle noted, was important to the Fifth
Circuit’s refusal to uphold Judge Varner’s mandate for release, ​see ​Y​ACKLE​, ​supra n
​ ote 30, at
153. ​See C
I​NSTITUTIONS​, Standard 4142 (1977).
154. 441 U.S. 520, 523 (1979). 155. ​See id. ​at 535
n.16. 156. U.S. C​ONST​. amend. V; U.S. C​ONST​.
amend. XIV, § 1. 157. ​Bell​, 441 U.S. at 525. 158. ​Id.
159. ​Id.

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2020] ​The Puzzles of Prisoners and Rights ​129
into cells that were about seventy-five square feet.​160 ​Each cell had
a washbasin and “an uncovered toilet.”​161 ​Detainees were locked in
from 11:00 p.m. until the next morning.​162
The Supreme Court rejected the lower courts’ conclusion that the government had to justify its “restrictions and privations” by showing that
they stemmed from “compelling necessities of jail administration.”​163
The Court held that prisoners’ loss “of freedom of choice and
privacy are inherent inci- dents of confinement,”​164 ​which meant that
double celling was permissible. Yet the Court noted that most
people at the MCC stayed no longer than sixty days and that

confining a lot of people “in such a manner . . . over an extended
pe- riod of time might raise serious questions under the Due
Process Clause.”​165
As ​Bell v. Wolfish ​was pending, those “serious questions” were
posed by convicted prisoners in Ohio.​166 ​At issue was another new
prison, the Southern Ohio Correctional Facility—known as
Lucasville. Constructed in the early 1970s to replace what Thomas
Hogan, the federal judge assigned to the case, called the “ancient
Ohio Penitentiary,”​167 Lucasville
was meant to hold 1,600– 1,700
prisoners in sixty-three-square-foot single cells.​168 ​Like the federal
jail in New York City, the building was converted into high-density
space. By 1977, 2,300 prisoners were there, and two-thirds were
serving life or long sentences.​169 ​Kelly Chapman and Richard
Jaworski, confined to the same cell, argued that their double celling
violated the U.S. Constitution. Federal district court judge Thomas
Hogan concluded that providing “at best” thirty to thirty-five square
feet per person was constitutionally unacceptable.​170 ​The trial court’s
opinion was sparse; the judge did not discuss the toilets and sinks
unshielded from observation​171 but
distinguished ​Bell v. Wolfish
because prisoners at Lu- casville were there for many years.​172 ​In
1980, the Sixth Circuit, without more explanation, affirmed that this
form of double celling constituted cruel and un- usual punishment.​173

160. ​Id. a
​ t 526, 541. 161. ​Id. ​at 541. 162. I​ d. ​163. Wolfish v. Levi, 573 F.2d 118, 124 (2d Cir.
1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)), ​rev’d sub nom. ​Bell v.
Wolfish, 441 U.S. 520 (1979).
164​. Bell​, 441 U.S. at 537. 165. ​Id. ​at 542. 166. ​See C
​ hapman v. Rhodes, 434 F. Supp. 1007
(S.D. Ohio 1977), ​aff’d,​ 624 F.2d 1099 (6th Cir. 1980), ​rev’d,​ 452 U.S. 337 (1981).

167. ​Id. a
​ t 1009. 168. ​Id. ​at 1010, 1021. 169. ​See id. ​at 1011. 170. ​Id. a
​ t 1021. 171. For a
discussion of the limited record and the impact of the litigation, see Elizabeth Alexander,
Prisoners’ Lawyers Face Critical Issues​, 13 J. N​AT​’L​ ​PR
​ OJECT​, Fall 1987, at 22, 23, 25.
172. ​See Chapman,​ 434 F. Supp. at 1020. 173. S
​ ee
Chapman v. Rhodes, 624 F.2d 1099 (6th Cir. 1980).

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130 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
A quote from the Ohio petition for certiorari merits repeating, for it is a
testament to the impact of the decade of prisoners’ rights litigation
and the rulings of judges such as Frank Johnson. The state framed
its request for Su- preme Court review by asking whether “double
celling of prison inmates con- stitutes cruel and unusual punishment
where the record indicates that the practice does not deprive
inmates of minimum constitutional guarantees to ad- equate food,
clothing, shelter, sanitation, medical care and personal safety.”​174
Even as the state challenged the ruling against double celling, it
conceded that the Constitution ​did r​ equire it to provide what states a
decade earlier had argued they had ​no ​legal obligation to do.
Winston Talley, William King Bishop, Jerry Pugh, Worley James,
and Lawrence Holt, and Judges Henley, Johnson, Blackmun, and
many others had reframed the permissible in prison.
But Ronald Reagan had run on a campaign demonizing criminals and
promising new tough measures. After he won in 1980, the Burger
Court ex- panded its efforts to limit the Warren Court’s reforms.​175
After the Ohio de- fendants sought Supreme Court review, amici
filings from Oregon, Texas, twenty-nine other states, and the federal
government argued that prison systems should be able to double
cell when needed.​176 ​Moreover, the amici asserted the
“expertise-based action of state correctional authorities”​177 ​should be
protected from federally imposed “architectural and penological
standards.”​178 ​Instead, courts should intervene only if prison
conditions caused “extreme or unneces- sary pain.”​179

174. Petition for Writ of Certiorari at 1–2, Rhodes v. Chapman, 452 U.S. 337 (1981) (No.
80-332). 175. L​INDA ​GR
​ DICAL ​RI​ GHT ​(2016).

176. Brief of Amicus Curiae State of Oregon in Support of Petition for Writ of Certiorari, ​Rhodes​, 452 U.S. 337
(No. 80-332); Brief of Amicus Curiae State of Texas in Support of the Petitioners, ​Rhodes​, 452
U.S. 337 (No. 80-332); Brief of the States of Alaska, Arizona, Colorado, Connecticut, Delaware,
Florida, Hawaii, Idaho, Illinois, Indiana, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, North Carolina, North Dakota, Oregon, South Carolina, South
Dakota, Tennessee, Vermont, Virginia, Wash- ington, West Virginia, Wisconsin, Wyoming, and
the Government of the Virgin Islands in Support of Peti- tioners, Amici Curiae, ​Rhodes​, 452
U.S. 337 (No. 80-332).
As noted, by 1987, more than thirty states were involved in structural litigation. ​See V
​ incent Nathan, ​Lawsuits
Fundamental to Prison Reform,​ 13 J. N​AT​’L​ ​P​RISON ​PR
​ OJECT​, Fall 1987, at 16, 17. Many of the
states joining Ohio’s efforts were in that mix. ​See, e.g.​, Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.

Tex. 1980). At issue in the 1979 trial in ​Ruiz v. Estelle w
​ as the practice of placing five prisoners
in a single cell, and Judge William Wayne Justice, who presided in that case, asked five
individuals to stand inside the small cell that the plaintiffs’ lawyers had replicated in the
courtroom so as to understand what that crowding looked like. E-mail from Lucas Guttentag,
Senior Research Scholar, Yale Law School, to Judith Resnik, Professor of Law, Yale Law
School (Jan. 1, 2020) (on file with author) (Professor Guttentag clerked for Judge Justice in
177. Brief of the States of Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois,
Indiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North
Car- olina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Vermont,
Virginia, Washington, West Virginia, Wisconsin, Wyoming, and the Government of the Virgin
Islands in Support of Petitioners, Amici Curiae, ​supra n
​ ote 176, at 2.
178. ​Id.​ at 6.
179. ​Id.

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2020] ​The Puzzles of Prisoners and Rights ​131
Lawyers for the prisoners countered that the density did cause “[m]ental [a]nd
[p]hysical [i]njury,”​180 ​that it correlated with violence, and that it had
no “penological justification.”​181 ​The American Medical Association
and the American Public Health Association told the Supreme Court
about the harms produced by “social density” in “long term
overcrowding.”​182 ​The associations offered the baseline of U.S.
Army regulations calling for seventy-two square feet per person.​183
Indeed, in the dissent that he filed when the Court ruled, Justice
Thurgood Marshall noted that most of the windows in the Supreme
Court were larger than the space allotted per person in Ohio’s
double cells.​184
Undeterred, Justice Lewis Powell, writing for the Court in 1981, adopted the
states’ stance. He used ​Rhodes v. Chapman ​to recalibrate the
relationship be- tween prison conditions and the Eighth Amendment
so as to expand the au- thority of prison administrators.​185 ​Echoing
the states’ arguments, Justice Powell explained that prison
conditions could not “involve the wanton and un- necessary infliction
of pain, nor [be] grossly disproportionate to the severity of the crime
. . . [or] deprive inmates of the minimal civilized measure of life’s ne-

cessities.”​186 ​Further, “unnecessary and wanton” pain was not
limited to the “physically barbarous.”​187 ​Practices that were “totally
without penological justi- fication” (such as deliberate indifference to
known medical needs) counted as violations of the Eighth
Given the stress, noise, and lack of personal privacy that double celling
inflicts, the Court’s tests could have rendered it unlawful.​189 ​Instead,
Justice Powell described forced intimacy as raising only a problem
of “comfort”​190 ​and justified “the discomfort,” in part, by pointing to
the fact that Lucasville housed “persons convicted of serious

180. Brief of Respondents at 8, ​Rhodes,​ 452 U.S. 337 (No. 80-332). 181. ​Id. ​at 18. 182. Motion
for Leave to File Brief Amicus Curiae and Brief of the American Med. Ass’n and the American
Pub. Health Ass’n at 3, ​Rhodes,​ 452 U.S. 337 (No. 80-332).

183. ​Id. a
​ t 10–25. 184. ​Rhodes,​ 452 U.S. at 371 (Marshall, J., dissenting). 185. ​See id. a
​ t 452.
186. ​Id. a
​ t 347. 187. ​Id.​ at 346 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). 188. ​Id.​
(quoting ​Gregg,​ 428 U.S. at 183). 189. A key issue that emerged thereafter was the question of
intentionality: did state actors have to intend to inflict pain? In 1991, in ​Wilson v. Seiter,​ the
Court, with Justice Scalia writing, defined punishment as “a deliberate act intended to chastise
or deter.” 501 U.S. 294, 300 (1991) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.
1985)). Thus, Wilson’s complaint of overcrowding and disabling noise and un- sanitary and
unsafe surroundings was to be assessed based on the subjective state of mind of the prison
official rather than an “objective” analysis of the conditions. ​Id.​ at 299. A 2015 ruling, ​Kingsley
v. Hendrickson,​ 135 S. Ct. 2466 (2015), has been read to signal a retreat from the subjective
inquiry into state of mind. ​See ​Schlanger, ​Constitutional Law of Incarceration,​ ​supra ​note 118,
at 403–04.
190. ​Rhodes,​ 452 U.S. at
349. 191. ​Id​.

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132 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
Had the ruling turned on imposing the punishment of social density on a
subset of prisoners who had been “convicted of serious crimes,”
double celling would not have been permissible for prisoners with

lesser sentences and for those in pretrial detention. But the Court
had already upheld pretrial double celling in ​Wolfish ​(justified in part
because it was for short periods of time).
The importance of ​Rhodes t​ o today’s massive incarceration cannot be overstated, as has become horribly clear in the wake of COVID-19. If the
Court had insisted on adequate space for individuals confined for
short or for long terms, states would have had to prosecute less,
adjust sentencing laws to reduce populations, let out some people,
or spend more to house the populations that their criminal justice
policies had caused to increase. But instead of requiring states to
internalize the costs of their policies by having to provide adequate
space for the individuals in detention, ​Wolfish ​and ​Rhodes ​buffered
states from paying for their expansive prosecution policies and
placed the costs on the in- dividuals suffering from being jammed
into jails and prisons that exceeded de- sign capacity.
Rhodes i​ s one example of how the Court has cut back on the role that the
Eighth Amendment could play in prisons. Moreover, in the next
decade, Con- gress enacted what it called the Prison Litigation
Reform Act (PLRA), which imposed a myriad of barriers to
prison-conditions litigation, including directing federal judges to end
remedial orders after two years unless new facts of ongo- ing
constitutional violations were established.​192
The reminder is that ​Rhodes ​and the PLRA limited but did not end all such
litigation. California’s overcrowded prisons provide one example of a
case that survived that decision as well as the hurdles of the PLRA.
In 2011, in ​Brown v. Plata,​ the Supreme Court upheld a three-judge
court order requiring a reduction in the number of prisoners held by
California because the overcrowding placed incarcerated
individuals’ lives and health in jeopardy.​193
Constraints on prisoners’ litigation came through other routes as well. As I
have discussed, the Due Process Clause of the Fourteenth
Amendment was another important avenue to federal court
oversight of prison officials’ deci- sions. As I noted, in the 1970s, the
Court had held that good time credits could not be taken away
unless prisons provided some check on arbitrary decisions. Prison
officials could not retract good time without prisoners having an
oppor- tunity to contest and without providing some explanation of
the grounds. In the years thereafter, the Court retreated. It reversed
rulings in lower courts that

192. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996). An empir- ical
analysis of the impact comes from Margo Schlanger, ​Trends in Prisoner Litigation as the PLRA
Enters Adult- hood​, 5 U.C. I​RVINE ​L. R​EV​. 153 (2015).
193. 563 U.S. 493, 502

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2020] ​The Puzzles of Prisoners and Rights ​133
had recognized that due process constrained prison officials’
decisions on trans- fers to remote or high-security settings,​194
placement in segregation (whether explained as “protective
custody,” as “discipline,” or more generally under the term
“administrative segregation”), and ending opportunities to see
visitors.​195 The
rollback of constitutional protections against the
arbitrariness of these decisions began in the 1970s and became
ensconced in a test first set forth in ​Sandin v. Conner​, decided in
1995.​196 Demont
Conner, held in Hawaii, was sent (“sentenced”
would be a better word) to thirty days of solitary confinement (with
leg and waist chains) after he had spoken abruptly to a guard who
had done an intrusive body-cavity search.​197 ​Conner argued a right
to a fair process before such placement. Chief Justice Rehnquist
wrote for the Court that lawful conviction “brings about the
necessary withdrawal or limitation of many privi- leges and rights.”​198
Putting Conner in solitary, while “punitive,” was not a “dra- matic
departure from the basic conditions” of his indeterminate
By equating the normal (“basic conditions”) in this context with the constitutional, the Court deferred to prison officials who shape prison
conditions. The Court ruled that prisoners could not bring
Fourteenth Amendment due process claims based on a deprivation

of liberty unless they could demonstrate either that statutory good
time was at stake or that they had been subjected to “atypical”
conditions, imposing “significant hardship.”​200 ​Conner lost because
being sent to disciplinary segregation, which occasioned a radical
reduction in time out of cell and in activities based on a breach of a
minor rule, was typical of how prison staff treated people.

194. ​See ​Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). The First
Circuit had held that given the adverse impact of a transfer, process was required. Fano v.
Meachum, 520 F.2d 374, 378 (1st Cir. 1975). The Second Circuit had likewise identified the
harms from a transfer and had remanded to learn when punishment had been intended. United
States ​ex rel. H
​ aymes v. Montanye, 505 F.2d 977, 981–82 (2d Cir. 1974). In ​Meachum,​ Arthur
Fano and other prisoners were in Norfolk, a prison in Mas- sachusetts, where they were
reclassified to be sent to Walpole, a maximum-security prison. The Justices held that the
prisoners had neither rights to more process nor rights to federal court oversight of the process
provided because Massachusetts had not created a statute governing the transfer system and
because the prisoners otherwise had no liberty interest remaining in the place of their
confinement. ​See Meachum,​ 427 U.S. at 224. Justice Stevens dissented and argued that
liberty was not sourced in law alone and that prisoners retained a “residuum of constitutionally
protected liberty while in legal custody pursuant to a valid convic- tion.” ​Id. ​at 232 (Stevens, J.,
dissenting, joined by Brennan, J., and Marshall, J.). While the state could change conditions of
confinement, it could not do so arbitrarily. ​Id​. at 234; ​see also Montanye,​ 427 U.S. at 244–46
(Stevens, J., dissenting, joined by Brennan, J., and Marshall, J.).
195. Ky. Dept. of Corr. v. Thompson, 490 U.S. 454 (1989); ​see also O
​ lim v. Wakinekona, 461 U.S. 238
(1983). ​196. 515 U.S. 472, 475 (1995). The case law’s evolution and debates are detailed in
Judith Resnik, Hirsa ​Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta,
Madeline Silva, Tor Tarantola & Meredith Wheeler, ​Punishment in Prison: Constituting the
“Normal” and the “Atypical” in Solitary and Other Forms of Confinement​, 114 N​W​. U. L. R​EV​.
(forthcoming 2020).
197. ​Sandin​, 515 U.S. at 475; s​ ee also id.​ at 494 (Breyer, J., dissenting). 198. ​Id. ​at
485 (quoting Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)).
199. ​Id. 2
​ 00. ​Id. a
​ t 484.

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134 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
This distinction between the typical and the atypical was pivotal a decade later

when the Court assessed indefinite solitary confinement. According
to the 2005 unanimous decision of ​Wilkinson v. Austin ​written by
Justice Kennedy,​201 ​the Ohio Supermax had more than 500 cells in
which it controlled “almost every aspect” of prisoners’ lives.​202 ​He
described how prisoners were in spaces measuring “7 by 14 feet,
for 23 hours per day. A light remains on in the cell at all times . . . .
[Solitary cuts off] almost any environmental or sensory stimuli and . .
. almost all human contact.”​203
By the time the case reached the Supreme Court, the central issue was the
process due when individuals were put into solitary confinement.
The Court, relying on the approach in ​Sandin​, noted that the
decision had not been clear about the baseline against which to
measure typicality; since 1995, appellate courts had not “reached
consistent conclusions for identifying the baseline from which to
measure what is atypical and significant in any particular prison
system.”​204 ​Rather than clarify the metric, the Court concluded that
Ohio’s op- pressiveness created “an atypical and significant
hardship under any plausible baseline.” 205
​ ​The factors that Justice
Kennedy identified as making the Super- max “atypical” (as
compared to “most solitary confinement facilities”)​206 ​were the
extremity of the deprivations, the potential for remaining in such a
setting indefinitely, and the resulting limitations of the possibility of
The Court’s phrasing appeared to make permissible “typical” solitary confinement as well as isolating conditions in general population. But
with those factors, the Ohio prisoners had enough of a liberty
interest left in avoiding that form of solitary that the state had to
provide some procedural protections.​208 ​During the litigation, Ohio
had revised its process, and what it accorded (“no- tice of the
factual basis” leading to the placement; an opportunity to rebut
charges; “a short statement of reasons;” and annual review) sufficed
as a pred- icate to years in such conditions.​209
Just as ​Rhodes h
​ ad limited but not extinguished all attacks on prison conditions, ​Wilkinson ​tolerated stunning cruelty but also made possible
arguments that procedural protections were required when
prisoners could establish that particular placements were “atypical”
and imposed a “significant hardship.” Be-

201. 545 U.S. 209 (2005). 202. ​Id. a
​ t 214. 203. I​ d. 2
​ 04. ​Id. a
​ t 223. 205. ​Id.
206. ​Id. a
​ t 224. 207. ​Id. 2
​ 08. ​Id. 2
​ 09. ​Id. ​at 226–27. The Court did not require

opportunities to call witnesses. ​Id. ​at 228.

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2020] ​The Puzzles of Prisoners and Rights ​135
tween 1995 and 2019, those terms appear in thousands of federal
court deci- sions.​210 ​While many rulings reject prisoners’ claims, a
few judges have found that prisoners can contest the process by
which they are put into solitary con- finement. One example comes
from the Seventh Circuit, which opened its opinion:
Stripped naked in a small prison cell with nothing except a toilet;
forced to sleep on a concrete floor or slab; denied any human
contact; fed nothing but “nutri-loaf”; and given just a modicum of
toilet paper—four squares—only a few times. Although this might
sound like a stay at a Soviet gulag in the 1930s, it is, according to
the claims in this case, Wisconsin in 2002.​211

Such decisions make plain that while Ohio’s Supermax had imposed significant hardships, profound isolation of individuals could be found in
prisons around the United States. Indeed, the 500 beds of Ohio’s
Supermax were a small fraction of the expansive infrastructure of
solitary confinement, which has been documented not only in case
law but also through in-depth studies of specific jurisdictions and
national research projects.
Data on the number of people held in isolation come from the Correctional
Leaders Association (CLA, formerly the Association of State
Correctional Ad- ministrators (ASCA), which is comprised of the
directors of all the state prison systems and many of the major
jails​212​) and the Arthur Liman Center at Yale Law School. Since
2013, ASCA and Liman have sought to learn how many people in
what conditions are held on average for twenty-two hours or more
for fifteen or thirty days or more.
Answers come from a series of national surveys addressed to each state’s
prison system and to the federal government. The 2014

ASCA–Liman Report estimated that 80,000 to 100,000 of the 1.5
million people behind bars were in such isolation.​213 ​As of the fall of
2017, in forty-three jurisdictions providing data, 4.6% of their prison
populations were held in solitary,​214 which

210. ​See R
​ esnik, Amin, Angelis, Hauptman, Kokotailo, Mehta, Silva, Tarantola & Wheeler, ​supra ​note 196.
211. Gillis v. Litscher, 468 F.3d 488, 489 (7th Cir. 2006). The Seventh Circuit vacated the dismissal and
remanded the case to the lower court for further proceedings. ​Id. a
​ t 495.
212​. See Members List​, C​ORRECTIONAL ​L​EADERS ​A​SS​’​N​,
com_mcsearchresults&view=search&uuid=116ae4c9-8ee4-438c-97f8-1f3dac874f10#/ (last
visited Jan. 26, 2020). ​213. S
​ ee ​A​SS​’​N OF ​S​TATE ​C​ORR​. A​DM​’​RS ​& ​THE ​A​RTHUR ​L​IMAN ​C​TR​. ​FOR
​ ​IME​-​IN​-C​ELL
2014 R​EPORT​],
au- gust_2015.pdf, (authors
include Sarah Baumgartel, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter,
Judith Resnik, George Camp, and Camille Camp).
214. ​See A

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136 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
an estimate that at least 61,000 people were then in solitary
confinement.​215 ​While many prison systems have not kept track of
how long people remain in solitary, in thirty jurisdictions, some 3,500
people had been in such conditions for more than three years.​216
Furthermore, about 4,000 of the people in solitary were “seriously
mentally ill” under the definition of the prison system in which they
were held.​217
My discussion thus far has focused on decisions about putting people into
solitary confinement, as contrasted with direct challenges to the
practice. An- other line of cases addresses whether the Eighth

Amendment bars profound isolation.​218 ​In the 1960s, the Honorable
Constance Baker Motley, who was the first Black woman to become
a federal judge, held that it did; she ruled that placement of Martin
Sostre in solitary confinement for more than fifteen days violated the
Constitution.​219 ​While the Court of Appeals for the Second Circuit
upheld the part of her decision finding that New York state officials
had un- constitutionally retaliated against Sostre for winning rights
as a Black Muslim to observe his religion, the court reversed the
time limit on solitary confinement.​220 ​In the court’s words: “For a
federal court . . . to place a punishment beyond the power of a state
to impose on an inmate is a drastic interference with the state’s

T​IME​-​IN​-C​ELL ​11 (2018) [hereinafter ASCA/L​IMAN ​R​EFORMING ​R​ESTRICTIVE ​H​OUSING ​2018
_hous- ing_released_oct_2018.pdf, (authors in- clude Judith
Resnik, Anna VanCleave, Kristen Bell, Alexandra Harrington, Greg Conyers, Catherine
McCarthy, Jenny Tumas, and Annie Wang). This report is one in a series of research projects
coauthored by the Association of State Correctional Administrators (ASCA) and the Arthur
Liman Center at Yale Law School and has created a longitudinal, nationwide database.
For the three prior research projects, see A​SS​’​N OF ​S​TATE ​C​ORR​. A​DM​’​RS ​& T​HE ​A​RTHUR ​L​IMAN ​C​TR​. ​FOR ​P​UB​.
​ ATH ​(2016) [hereinafter ASCA/L​IMAN ​R​ETHINKING ​“D​EATH ​RO
​ W​”
R​EPORT​], (authors include Celina Aldape
Ryan Cooper, Katie Haas, Xionan April Hu, Jessica Hunter, Shelle Shimizu, Johanna Kalb, and
Judith Resnik); A​SS​’N
​ RR​. A​DM​’R
​ S ​& T​HE ​LI​ MAN ​CT​ R​. F​ OR ​P​UB​. I​NTEREST ​LA
​ W AT
​ W ​SC
​ FORMS ​(2016) [hereinafter ASCA/L​IMAN ​TI​ ME​-I​ N​-C​ELL ​2016
R​EPORT​],, (authors include Judith Resnik, Sarah Baumgartel, Kristen Bell,
Olevia Boykin, Corey Guilmette, Tashiana Hudson, Johanna Kalb, Diana Li, Joseph Meyers,
Hava Mirell, Jessi Pur- cell, Anna VanCleave, Camille Camp, and George Camp); ASCA/L​IMAN
T​IME​-I​ N​-C​ELL ​2014 R​EPORT ​supra n
​ ote 213.
​ STRICTIVE ​H​OUSING ​2018 R​EPORT​, ​supra ​note 214, at 4. 216.
Id​. at 4–5. 217. ​Id.​ at 5. 218. ​See generally ​David M. Shapiro, ​Solitary Confinement in the

Young Republic​, 133 H​ARV​. L. R​EV​. 542 (2019). ​219. Sostre v. Rockefeller, 312 F. Supp. 863,
​ 42 F.2d 178 (2d Cir. 1971)
872 (S.D.N.Y. 1970), ​aff’d in part, rev’d in part​, Sostre v. McGinnis​
(en banc). 220. ​Sostre​, 442 F.2d at 190, 192–93.

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2020] ​The Puzzles of Prisoners and Rights ​137
free political and administrative processes . . . [even if] to us the
choice may seem unsound or ​personally r​ epugnant.”​221

The Second Circuit’s approach to solitary confinement had parallels in other
circuits, which likewise declined to find solitary confinement itself
uncon- stitutional,​222 ​even as some courts—such as Chief Judge
Henley’s ruling in ​Holt v. Sarver—
​ concluded that placing many
people in cramped cells in solitary con- finement for more than thirty
days was unlawful.​223 ​Two decades later, Judge Thelton Henderson
of the Northern District of California addressed a class action
challenge to solitary confinement in California’s Pelican Bay State
Prison.​224 ​He ruled that the extreme isolation constituted cruel and
unusual pun- ishment for individuals who were mentally ill.​225 ​While
noting that the Eighth Amendment did not guarantee that prisoners
were not to suffer “some psycho- logical effects from incarceration
or segregation,” Judge Henderson concluded that putting already
mentally ill people into segregation could “greatly exacer- bate
mental illness, or deprive inmates of their sanity.”​226
During the last decade, new challenges to solitary confinement have been
filed, including some detailing the circumstances of individuals held
for long periods of time in isolation.​227 ​In addition, litigation continues
to focus on sub- populations (such as individuals who have serious
mental illnesses, who suffer from physical disabilities, or who are
under the age of eighteen).​228 ​The specter that putting people into
solitary confinement would impair their mental health has drawn
particular attention from Supreme Court justices​229 ​and returns me
to Alabama where, decades after Judge Johnson ruled on the
Alabama prisons, litigation has continued about the treatment of
prisoners with mental illness.
In 2016, Judge Myron Thompson, sitting in the Montgomery courtroom where

Judge Johnson worked, certified a class of “all persons with a
serious mental-health . . . illness who are now, or will in the future
be, subject to de-

221. ​Id. a
​ t 191. 222. ​See, e.g.​, Nadeau v. Helgemoe, 561 F.2d 411 (1st Cir. 1977); Novak v.
Beto, 453 F.2d 661 (5th Cir. 1971). ​223. S
​ ee supra n
​ otes 76, 132 and accompanying text.

224. Madrid v. Gomez​, ​889 F. Supp. 1146 (N.D. Cal. 1995). 225. ​Id. a
​ t 1266–67. 226. ​Id. a
​ t
1264. 227. ​See P
​ orter v. Clark, 923 F.3d 348 (4th Cir. 2019); Reyes v. Clarke, No. 3:18CV611,
2019 WL 4044316 (E.D. Va. Aug. 29, 2019); Reynolds v. Arnone, 402 F. Supp. 3d 3 (D. Conn.
2019), ​appeal docketed and stay granted pending appeal​, No. 19-2858 (2d Cir. Sept. 9, 2019).
228. ​See ​Complaint at 18, para. 51, Disability Rights Network v. Wetzel, 1:13-cv-00635-JEJ (M.D. Pa. Mar.
11, 2013),; Settlement
Agree- ment at 3, Disability Rights Network v. Wetzel, No. 3:13-CV-00635-JEJ (M.D. Pa. Jan.
9, 2015), ECF No. 59,
229. Justice Kennedy’s concurrence in ​Davis v. Ayala​, 576 U.S. 257 (2015), was one example, and another
comes from Justice Breyer’s dissent in ​Glossip v. Gross,​ 135 S. Ct. 2726, 2792 (2015), in
which he was joined by Justice Ginsburg. See also Justice Sotomayor’s statement concerning
the Court’s denial of certiorari in ​Apodaca v. Raemisch,​ 129 S. Ct. 5, 6 (2018).

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138 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
fendants’ mental-health care policies and practices” within the
Alabama De- partment of Corrections facilities.​230 ​At the time of the
litigation, the Alabama system included 19,500 prisoners; 3,400
were receiving “some type of mental- health treatment.”​231
In 2017, following a seven-week trial, the federal district court found that
“inadequacies in the mental-health care system start . . . with intake
screening” in which “likely thousands” of prisoners with mental
illness are missed.​232 ​The court concluded that even when
mental-health issues were identified, “prison- ers receive
significantly inadequate care,” including those at risk of suicide.​233
(One of the individuals in solitary died while the trial was
underway.)​234 ​The court held that the care provided violated the

state’s constitutional obligation not to be deliberately indifferent to
the “serious medical needs of prisoners.”​235 ​The Eighth Amendment
prohibited placing
seriously mentally ill prisoners in segregation without extenuating
circum- stances and for prolonged periods of time; placing
prisoners with serious mental-health needs in segregation without
adequate consideration of the im- pact of segregation on mental
health; and providing inadequate treatment and monitoring in

230. Braggs v. Dunn, 317 F.R.D. 634, 673 (M.D. Ala. 2016). Excluded were those at “work release centers
and Tutwiler Prison for Women.” ​Id. a
​ t 673. A co-plaintiff, the Alabama Disabilities Advocacy
Pro- gram, which is a designated protection agency under federal law, pursued claims on
behalf of women at Tutwiler. ​See B
​ raggs v. Dunn, 257 F. Supp. 3d 1171, 1181 (M.D. Ala.
231. ​Braggs,​ 257 F. Supp. 3d at 1181. 232​. Id. ​at 1181, 1184. 233. ​Id.​ at 1185. Two people
committed suicide during the course of the trial, including one of the named plaintiffs who
testified in the case. ​Id​. at 1186. Further, during the trial, the state’s associate commis- sioner
for health services, named defendant Ruth Naglich, admitted that it was “categorically
inappropriate” to place people with serious mental illness in solitary confinement and that such
placement amounted to “denial of minimal medical care.” ​Id. ​at 1246.
234. ​Id. a
​ t 1186. 235. ​Id.​ at 1267–68. The standard comes from ​Estelle v. Gamble​, 429 U.S.
97, 104 (1976), which held that “deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment” (citation omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). In 1994,
Justice Souter, writing for the Court, concluded that the test required inquiry into whether a
prison official knew, as a matter of fact, that prisoners faced “a substantial risk of serious harm
and disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994). Justice Blackmun, joined by Justice Stevens, argued that
“inhumane prison conditions violate the Eighth Amendment even if no prison official has an
improper, subjective state of mind.” ​Id.​ at 851 (Blackmun, J., concurring).

In ​Farmer ​and other opinions, Justice Thomas has stated that the Eighth Amendment applies only to the
decisions of judges and juries and not to conditions of confinement. ​See ​Overton v. Bazzetta,
539 U.S. 126, 142–44 (2003) (Thomas, J., concurring); Helling v. McKinney, 509 U.S. 25,
38–39 (1993) (Thomas, J., dissenting); Hudson v. McMillian, 503 U.S. 1, 18–19 (1992)
(Thomas, J., dissenting).
236. ​Braggs​, 257 F. Supp. 3d at 1268 (footnote omitted). In 2017, the correctional system was seeking to
implement a process to identify prisoners with serious mental illness so that they were not
placed in seg- regation, absent extenuating circumstances. ​See B
​ raggs v. Dunn, No.
2:14cv601-MHT, 2018 WL 985759 (M.D. Ala. Feb. 20, 2018). The struggles to remediate the
harms are chronicled in ​Braggs v. Dunn,​ No.

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2020] ​The Puzzles of Prisoners and Rights 1
​ 39
In sum, more than forty years after Judge Johnson concluded that Ala- bama’s
prisons imposed debilitating harms on prisoners, Judge Thompson
reached the same conclusion for a substantial percentage of the
prison system’s population. The harms he identified are, again, not
limited to one state’s sys- tem.​237
​ HE
​ ND ​PR
Two competing narratives are at the core of this account. The first is that, due
to Jerry Lee Pugh, Worley James, Judge Johnson, and many
others, consti- tutional law has become present in prisons and
constrained aspects of their horrors. The second is that law has ​not
kept prisoners safe and humanely treated. I close by exploring this
puzzle, as I explain how these two propositions fit together, the role
of politics and of prison administrators, and how constitu- tional
analyses can and should do more to circumscribe the harms that
incar- ceration can impose.
As I explain below, in the 1970s, trial judges saw how when prisoners were
“warehoused” in settings with no activities or opportunities, they
deteriorated. These judges held unconstitutional forms of
punishment that did not try to buffer against debilitation. However,
appellate courts pulled back from impos- ing obligations that they
saw as mandating prison officials to aim to rehabilitate prisoners.
When doing so, their opinions did not distinguish between remedies
to limit how confinement causes deterioration and future-looking
efforts to re- habilitate individuals. And decisions outside and inside
courts have interacted to leave prisoners at what the Fifth Circuit

condoned—“subsistence” levels that diminish
individuals to function as responsible adults.




Legal doctrine is, of course, but one factor. Had prison populations been
stable in the decades after courts held that states had affirmative
obligations to provide safety and security, correctional officials
would have had more potential to comply. But the steep rise in
prosecutions, changing sentencing policies, and declining
commitments to mental health and social welfare supports in the
1980s and thereafter resulted in the overcrowding of prisons,​238
which saps re- sources. As of 2019, approximately 2.3 million
people were in detention, and

2:14cv601-MHT, 2019 WL 6833843 (M.D. Ala. Dec. 13, 2019); ​Braggs v. Dunn,​ 367 F. Supp.
3d 1340 (M.D. Ala. 2019); ​Braggs v. Dunn,​ No. 2:14cv601-MHT, 2018 WL 2168705 (M.D. Ala.
Apr. 25, 2018); ​Braggs v. Dunn,​ No. 2:14cv601-MHT, 2018 WL 2440287 (M.D. Ala. Apr. 25,
2018); ​Braggs v. Dunn,​ No. 2:14cv601-MHT, 2018 WL 1805594 (M.D. Ala. Apr. 9, 2018);
Braggs v. Dunn,​ No. 2:14cv601-MHT, 2018 WL 2057467 (M.D. Ala. Mar. 30, 2018).
237. ​See generally A
​ ndrea C. Armstrong, ​The Missing Link: Jail and Prison Conditions in Criminal Justice
Reform,​ 80 L​A​. L. R​EV​. 1 (2019).
238. Many commentators chronicle the policies and their impact. ​See generally G
​ ​OTTSCHALK​, ​supra ​note 149;
H​INTON​, ​supra ​note 149; J​OHN ​F. P​FAFF​, L​OCKED IN​: T​HE ​T​RUE ​C​AUSES OF ​M​ASS
​ ND ​HO
​ W TO ​AC
​ AL ​RE
​ FORM ​(2017).

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140 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
large proportions of these individuals had histories of substance
abuse, mental illness, and poor health.​239
Correctional officials do not need constitutional law to provide good ser- vices.
Yet however well-intended many are, they do need money to
support well-trained and well-paid staff and to maintain facilities
adequate to the task. During the 1990s, funds did flow toward
prisons, but money was targeted for retributivist policies such as the
construction of Supermax prisons.​240 ​Moreo- ver, as I have detailed,
the Court’s 1981 interpretation that the Eighth Amend- ment

permitted double celling provided no relief either for prisoners or for
prison officials, some of whom could have used a decision
prohibiting routine overcrowding as a buffer to limit intake or as an
argument for different alloca- tions of funds.
As I also sketched, the Court’s reliance on “typical” treatment as the basis to
cut back on judicial oversight of decisions about in-prison
punishments (such as transfers to higher security levels and to
solitary confinement) undercut the promise that the Constitution
protects prisoners from the exercise of arbitrary power by state
officials. Had judges focused on what were ordinary practices in the
1960s and 1970s, the “System” would have remained intact. But
Judge John- son in Alabama, as well as Chief Judge Henley in
Arkansas, Judge Mehridge in Virginia, and several others, looked at
what was commonplace and were re- volted. Relying on the Eighth
and Fourteenth Amendments, they ruled out a host of practices and
decision-making that were then “usual” rather than “atyp- ical.”
Moreover, these trial judges introduced other terms—​habilitation

​ into the lexicon of the constitutional law of
and ​debili- ​tation—
prisons. Judge Johnson first used those concepts in the context of a
case brought by mentally ill individuals

2019 (Mar. 19, 2019), In 2011, there were
an estimated 1.6 million people held in state and federal prisons. E. A​NN ​C​ARSON ​& W​ILLIAM ​J.
(2012), On aver- age, jail populations numbered about
750,000. ​See ​JE
​ IL ​IN
​ MATES​, 2011-12
(2017), A 2017 report re- leased by the
Bureau of Justice Statistics found that 44.3% of prison and jail inmates had been told “by a
mental health professional that they had a mental disorder.” ​Id. ​at 4.
240. For example, in 1994, Congress appropriated almost $8 billion in funding that enabled the con- struction
of more high-security facilities. ​See ​Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 20109, 108 Stat. 1818; ​see also ​B​UREAU OF ​J​USTICE ​A​SSISTANCE​, U.S.
​ OGRAM ​7–30 (2012). As explained in
2001, the number of prisoners housed in “secure units” increased, and recipients of the federal
grants “had significantly more inmates housed in secure units” than states that had not taken
the funds. ​See ​Susan Turner, Terry Fain, Peter W. Greenwood, Elsa Y. Chen & James R.
Chiesa, National Evaluation of the Violent Offender Incarceration/Truth-in-Sentencing Incentive
Grant Program 91–93 (Nov. 29, 2001),
[] (unpublished report, U.S. Department of Justice) (on file with
the Na- tional Criminal Justice Reference Service).

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2020] ​The Puzzles of Prisoners and Rights 1
​ 41
whom Alabama had involuntarily confined. He then wove concerns
about the destructive potential of detention into his decisions on
Two years before his opinion in ​Pugh,​ Judge Johnson learned of shocking
conditions in Alabama’s mental hospitals, where people were held
for decades. Between 1971 and 1972, he joined a few other lower
court judges in articulating a new constitutional theory—that the
predicate of the state power to hospitalize a person was the
provision of treatment.​241 ​Faced with awful practices in dealing with
severely disabled individuals held at Bryce Hospital in Tuscaloosa,
Judge Johnson concluded that the state’s lack of treatment violated
patients’ liberty rights.​242
In 1972, Judge Johnson wrote that “warehousing” people was unaccepta- ble.
The state hospital’s “atmosphere of psychological and physical
depriva- tion” was “wholly incapable of furnishing habilitation” and
was instead “conducive only to the deterioration and the debilitation
of the residents.”​243 ​“Because the only constitutional justification for
civilly committing a mental retardate, therefore, is habilitation, it
follows ineluctably that once committed such a person is possessed
of an inviolable constitutional right to habilita- tion.”​244
The Fifth Circuit agreed, but instead of embracing the concept of habilita- tion,
that court substituted the word ​treatment.​ Moreover, when
approving the obligation to provide such treatment for the mentally
ill, the appellate court

241. Wyatt v. Stickney, 325 F. Supp. 781, 784 (M.D. Ala.

The patients at Bryce Hospital, for the most part, were involuntarily committed through noncriminal procedures and without the constitutional protections that are afforded defendants in
criminal proceedings. When patients are so committed for treatment purposes they
unquestiona- bly have a constitutional right to receive such individual treatment as will give
each of them a realistic opportunity to be cured or to improve his or her mental condition.
Adequate and effec- tive treatment is constitutionally required because, absent treatment, the
hospital is transformed “into a penitentiary where one could be held indefinitely for no convicted
offense.” ​Id. ​(citations omitted) (quoting Ragsdale v. Overholser, 281 F.2d 943, 950 (D.C. Cir.
1960)). As that citation reflects, Judge David Bazelon on the D.C. Circuit was another of the
pioneers in rejecting such warehousing. According to the ACLU, the principles announced by
Judge Johnson in ​Wyatt i​ n the early 1970s—rights to treatment and habilitation—were
subsequently adopted in thirty-five states. ​ACLU History: Mental Institutions,​ ACLU, (last visited Jan. 26, 2020); ​see also
R.L. Sadoff, ​A Review of ​Wyatt v. Stickney​: Retrospect and Prospect,​ 27 J. F​ORENSIC ​SC
​ I​. 976,
976 (1982).
242. Judge Johnson wrote: “The purpose of involuntary hospitalization for treatment purposes is ​treat- ment
and not mere custodial care or punishment.” ​Wyatt,​ 325 F. Supp. at 784. In a subsequent
decision, Judge Johnson also found debilitating conditions at Partlow State School and
Hospital. ​See ​Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972).
243. ​Wyatt,​ 344 F. Supp. at 391. In this opinion, Judge Johnson quoted from his “Unreported Interim
Emergency Order,” issued on March 2, 1972. Having ruled from the bench in light of the
“urgency of the situation,” a transcript was made, and in the text of the published decision,
Judge Johnson put brackets around “[habilitation]” to signal that the original transcript had
dropped that word and that he was adding it. ​Id. ​I have deleted these brackets above to avoid
the implication that the word was not in his decision.
244. ​Id. ​at

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142 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
described that care as “beyond the subsistence level custodial care
that would be provided in a penitentiary.”​245
The circuit’s formulation limiting the right to habilitation to individuals who had
not been convicted of crimes explains why prisoners’ rights law has
not done more work in prisons. As long as prison law is stuck at the
“subsist- ence level,” as long as “subsistence” is defined to exclude
practices falling under the terms habilitation or treatment, and as
long as practices that are “typical” are used as justifications for
withdrawing judicial oversight, debilitation of pris- oners can follow.

The facts in the thirteen cases in Worley James’s Memorandum of Law make
plain that incarceration in the United States weighs a person down.
The experiences recounted by those prisoners also illuminate the
challenges that thinking through the limits of state power entails.
Engaging with the myriad of oppressive interactions to sort which
decisions are unconstitutional is daunting, as is providing remedies.
Yet the disengagement produced by deference under ​Rhodes v.
Chapman’​ s interpretation of the Eighth Amendment and by the
Sandin​– ​Wilkinson l​ imits on Fourteenth Amendment procedural due
process obligations undermine the proposition that the Constitution
does not “stop at the prison gate.”​246
What the prisoners who sought help, the lawyers who represented them, and
the judges who responded understood in the 1970s was that forced
density, overcrowding, lack of activity, arbitrary authority, and
violence devastated indi-

245. Wyatt v. Aderholt, 503 F.2d 1305, 1306 n.1 (5th Cir. 1974). In an opinion by Judge John Minor Wisdom,
the Fifth Circuit reiterated that civil commitment was justified by the need to treat individuals
and the “right to treatment arises as a matter of federal constitutional law under the due
process clause of the Fourteenth Amendment.” ​Id. ​at 1314 (referencing Donaldson v.
O’Connor, 493 F.2d 507 (5th Cir. 1971)). The court further referenced ​Donaldson v. O’Connor​’s
holding that civilly committed patients have a right “to such individual treatment as will help
each of them to be cured or to improve his or her mental condi- tion.” ​Id. ​at 1312. Hence,
district courts had the “power to order state mental institutions to provide minimum levels of
psychiatric care and treatment to persons civilly committed to the institution.” ​Id. a
​ t 1306. The
court also noted that the state had not disputed the lack of treatment, ​id. a
​ t 1310, as Judge
Wisdom recounted that individuals were placed “in straitjackets, without physicians’ orders,”
that “54 young boys” were fed from “one very large bowl with nine plates and nine spoons,” and
that there was no place to sit to eat, ​id. ​at 1311.
Thereafter, in a case coming up from Florida, the U.S. Supreme Court vacated a parallel Fifth Circuit ruling.
See O
​ ’Connor v. Donaldson, 422 U.S. 563 (1975). Below, Kenneth Donaldson had won
$38,500, which included $10,000 in punitive damages, ​id. a
​ t 572, after a jury trial in which
evidence showed that the state had provided custody but no treatment, ​id. ​at 569. The
Supreme Court concluded that it did not have to decide the “difficult issues of constitutional
law” about a right to treatment, as a narrower principle applied. ​Id. ​at 573. “[A] State cannot
constitutionally confine without more a nondangerous individual who is capable of surviving
safely in freedom by himself or with the help of willing and responsible family members or
friends.” ​Id. ​at 576. The Court remanded to decide both the jury instructions and state liability.
Id. ​at 577.

Two years earlier, in 1973, Congress enacted the Rehabilitation Act, Pub. L. No. 93-112, 87 Stat. 355 (now
codified at 29 U.S.C. §§ 701–799 (2018)). The focus of litigation shifted to statutory rights and
states’ immunity. The Court’s sequence of cases limiting the ability of individuals to sue states
for violating state or federal obligations to provide care are ​Pennhurst State Sch. & Hosp. v.
Halderman​, 451 U.S. 1 (1981); ​Pennhurst State Sch. & Hosp. v. Halderman​, 465 U.S. 89
(1984); and ​Atascadero State Hosp. v. Scanlon,​ 473 U.S. 234 (1985).
246. Battle v. Anderson, 447 F. Supp. 516, 524 (E.D. Okla.

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viduals. Judge Johnson concluded that Alabama prison conditions
were “so de- bilitating that they necessarily deprive[d] inmates of
any opportunity to rehabil- itate themselves, or even to maintain
skills already possessed.”​247 ​Judge Johnson then integrated
concepts of rehabilitation and of safety into the constitutional law of
punishment. He concluded that a prison system “cannot be
operated in such a manner that it impedes an inmate’s ability to
attempt rehabilitation, or simply to avoid physical, mental or social
deterioration.”​248 ​Judge Johnson also quoted from Chief Judge
Henley’s Arkansas ruling in ​Holt v. Sarver t​ hat the “ab- sence of an
affirmative program of training and rehabilitation may have constitutional significance where in the absence of such a program
conditions and practices exist which actually militate against reform
and rehabilitation.”​249
These quotes reflect that the Fifth Circuit’s terminology blurred rather than
elucidated the ideas and that a right not to be debilitated can be
distinguished from, rather than conflated with, a right to treatment
and to rehabilitation. To prevent debilitation requires services and
activities that can be part of treatment or of rehabilitation, but the
purposes are distinct. Treatment and rehabilitation look to the future
to help individuals and prisoners change by gaining new skills and
capacities. In contrast, debilitation looks to the past to prevent what
Judge Johnson called “deterioration.” And as I have argued in an
essay focused on the impact of prisoners on United States theories
of punishment, democratic orders have no legitimate aim in using
criminal sanctions to make people debil- itate.​250 ​The reminder is
that when Judge Johnson was writing, debates centered on how to
achieve rehabilitative goals, which was seen as the primary purpose
of punishment. In contrast, by the 1980s, retributivist attitudes (often
laced with texts and subtexts of racism) came to the fore.

As Judge Johnson’s remedies reflected, however, the theoretical distinc- tions
that I have drawn between debilitation and rehabilitation do not map
read- ily onto practice. Avoiding deterioration when individuals are
imprisoned often entails providing activities identified with
rehabilitation, and Judge Johnson’s mandates linked the two. He
ruled that Alabama prison conditions were “so debilitating” that
people were not able “even to maintain skills already possessed.”​251 ​He then drew the connection to rehabilitation by
commenting that individuals stood “no chance of leaving the
institution with a more positive and

247. Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Ala. 1976). 248. ​Id. I​ n his 1974 decision
denying Alabama’s motion to dismiss, Judge Johnson had explained that the prisoners had the
“burden of proving that the conditions of Alabama prisons themselves tend to encour- age
asocial and antisocial behavior” and that if so, rehabilitative services would be needed. James
v. Wallace, 382 F. Supp. 1177, 1181 (M.D. Ala. 1974). Yackle explained why prisoners’ lawyers
focused on a right to rehabilitation based on the Eighth Amendment rather than the Due
Process Clause as in ​Wyatt.​ ​See Y
​ A
​ CKLE​, ​supra n
​ ote 30, at 53–54, 58–59.

249. ​Pugh,​ 406 F. Supp. at 330 (quoting Holt v. Sarver, 309 F. Supp. 362, 379 (E.D. Ark. 1970)); ​see also
Y​ACKLE​, supra ​note 30, at 63 (discussing Judge Johnson’s reliance on the ​Holt p
​ recedent).
250​. See R
​ esnik, ​(Un)Constitutional Punishments,​
supra n
​ ote 6. 251. Pugh v. Locke, 406 F. Supp. 318,
330 (M.D. Ala. 1976).

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144 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
constructive attitude than the one he or she brought in.”​252 ​Judge
Johnson or- dered that prisoners “be assigned a meaningful job,”
that they “have the oppor- tunity to participate in basic educational
programs,” and that they be provided “a vocational training
program.”​253 ​In addition, before release, the prison had to offer
“some transitional program designed to aid in . . . re-entry into society.”​254 ​These aspects of Judge Johnson’s order did not survive
appellate review.​255 ​The Fifth Circuit did not parse distinctions

between efforts to buffer against debilitation and programs for
rehabilitation. Instead, in 1977, the court lumped them together and
held that a failure “to provide a rehabilitation program, by itself, does
not constitute cruel and unusual punishment.”​256 ​The appellate court
did approve a bit of Judge Johnson’s rubric by stating that the
prison was to provide a “meaningful job on the basis of [a person’s]
abilities and interests,” with the caveats that doing so was to be
“according to institutional needs,” 257
​ ​and that this obligation was not
to have “any precedential status in future cases if they should
arise.”​258 ​Moreover, the circuit interpreted Judge Johnson’s or- ders
on education and training to apply only when such programs
existed; if so, then the state had to provide “equal access on an
objective standard of basic utility to the individual.”​259
The degree to which the Circuit departed from Judge Johnson’s understanding of the constitutional constraints on punishment can be
seen from its conclusion that, if
the State furnishes its prisoners with reasonably adequate food,
clothing, shel- ter, sanitation, medical care, and personal safety,
so as to avoid the imposition of cruel and unusual punishment,
that ends its obligations under Amendment Eight. The Constitution
does not require that prisoners, as individuals or as a

252. ​Id. ​at 325. 253. ​Id​. at 335. 254. ​Id.​ 255. The Fifth Circuit panel included Judge James
Coleman, Judge Thomas Gee, and Judge Robert Kunzig of the United States Court of Claims.
Writing for the court, Judge Coleman began with a compliment. “Our first response is that the
determined efforts of the highly dedicated District Judge to put an end to unconstitutional
conditions in the Alabama prison system merit high commendation. We cannot believe that the
good people of a great state approved the prison situation demonstrated by the evidence in this
case.” Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977).
256. ​Id. ​at 291. 257. ​Id​. at 292. 258. ​Id.​ 259​. Id​. In addition, the court ended the mandate for
individual cells and human rights committees as well as for visits. ​Id. a
​ t 288, 291. The Supreme
Court remanded with instructions to dismiss two defendants, the State of Alabama and Board
of Corrections, because they had immunity under the Court’s reading of the Eleventh
Amendment’s protections for states and state-level agencies. Alabama v. Pugh, 438 U.S. 781,
782 (1978) (per curiam).

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group, be provided with any and every amenity which some
person may think is needed to avoid mental, physical, and
emotional deterioration.​260

Within a year, the Supreme Court distanced itself from endorsing rehabilitation as a facet of constitutional obligations, and the Court likewise
did not address the distinction between mandates for rehabilitation
and protection against debilitation. In ​Hutto v. Finney​, which dealt
with aspects of the Arkansas class action, ​Holt v. Sarver ​(cited in
James’s 1974 Memorandum of Law), the Court held that states
were not immune from paying attorneys’ fees to success- ful
plaintiffs in civil rights cases, and it upheld the remedy of a thirty-day
cap on time in solitary confinement that Chief Judge Henley had
imposed.​261 ​When doing so, the Court deliberately stepped back
from endorsing the rehabilitation concerns that had laced Chief
Judge Henley’s opinion.
As reflected in Justice Blackmun’s papers, one could have read Henley’s
objection to confining individuals for more than thirty days in solitary
confine- ment as predicated on the lack of its rehabilitative utility.​262
That interpretation

260. ​Newman,​ 559 F.2d at 291. 261. Hutto v. Finney, 437 U.S. 678, 680–81 (1978). As noted,
one issue involved interpreting the Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No.
94-559, 90 Stat. 2641 (codified at 42 U.S.C. § 1988 (2018)); the Court held that Chief Judge
Henley properly assessed fees against the state. ​Hutto,​ 437 U.S. at 700.

262. Two ​Hutto v. Finney ​memoranda written for Justice Blackmun by his then-law clerk Keith P. Ellison noted
that the lower courts’ decisions could be interpreted to establish an Eighth Amendment requirement that all methods of prison discipline served a rehabilitative purpose. In his February
1978 memo- randum, Ellison wrote:
[B]oth lower courts intimated that a rehabilitative purpose was necessary to justify punitive
isola- tion beyond a certain period of time. There is no support for such a view in any of this
Court’s precedents interpreting the cruel and unusual punishment clause. I think the Court

might wish to indicate its disapproval of any such theory and remand the case for
reconsideration. Memorandum from Keith P. Ellison, Clerk, U.S. Supreme Court, to Harry A.
Blackmun, Assoc. Justice, U.S. Supreme Court 31–32 (Feb. 14, 1978) (on file with Harry A.
Blackmun Papers, Library of Congress, Box 268, Folder 76-1660). Addressing Chief Judge
Henley’s opinion, Ellison stated:
The [district court] specifically found that “[w]hile most inmates sentenced to punitive
isolation are released to population within less than fourteen days, many remain in the
status in question for weeks or months, depending upon their attitudes as appraised by
prison personnel.” Petn Appx at 68. It would seem plain from this statement that the DC’s
holding, even as amended in the Clarifying Memorandum, does effect a change in prison
policy in limiting punitive confine- ment to 30 days (absent proof of another serious
infraction of prison discipline). And the rationale for this limitation—consisting partly of the
assumption that such confinement was unconstitu- tional because it served no
rehabilitative purpose—still merits judicial review. ​Id. ​at 4.
In his June 1978 memorandum commenting on the circulation of a draft of what would become Justice
Stevens’ opinion, Ellison suggested that the concern about rehabilitative purposes was shared
by Jus- tice Blackmun:
[I]n Part I, Mr. Justice Stevens satisfactorily deals with a concern that you and I shared: that is,
that the opinions below might be interpreted as requiring that all forms of prison discipline have
a rehabilitative function. Footnote 8 on page 7 emphasizes that the lower court opinions should
not be so read and that, indeed, there is no such requirement. Memorandum from Keith P.
Ellison, Clerk, U.S. Supreme Court, to Harry A. Blackmun, Assoc. Justice, U.S. Supreme Court
1 (June 11, 1978) (on file with Harry A. Blackmun Papers, Library of Congress, Box 268, Folder

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146 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
reflected the idea that all punishment was to be purposeful, and that
the domi- nant point of punishment was rehabilitation. Thus, under
this logic, if a prison practice could not be justified in reference to
rehabilitation, it could not stand. The Supreme Court distanced itself
somewhat from that equation by adding a footnote in its 1978
decision that upholding Henley’s limit of thirty days for solitary
confinement in Arkansas was not an endorsement of a view that the
Constitution required “that every aspect of prison discipline serve a
rehabilita- tive purpose.”​263 ​And, as I have recounted, in the decades
since, the Court has not rejected many in-prison practices that are
not crafted with rehabilitation in mind.

These retreats from what Judge Johnson and Chief Judge Henley envi- sioned
explain why prisoners’ rights litigation altered important aspects of
in- carceration but left others unchanged. The Court has recognized
that states have some degree of caregiving obligations. Prison
officials no longer dispute that prisoners have constitutional rights,
produced from a mix of the Eighth and Fourteenth Amendments, to
“adequate food, clothing, shelter, sanitation, medical care and
personal safety.”​264 ​Moreover, the state cannot impose pun- ishment
that entails “wanton and unnecessary infliction of pain”​265 ​or withhold
the minimum of “life’s necessities.” In addition, in 2019, when
holding in ​Timbs

263. ​Hutto​, 437 U.S. at 686 n.8. The footnote
The Department reads the following sentence in the District Court’s 76-page opinion
as an un- qualified holding that any indeterminate sentence to solitary confinement is
unconstitutional: “The court holds that the policy of sentencing inmates to
indeterminate periods of confinement in punitive isolation is unreasonable and
unconstitutional.” 410 F. Supp., at 278. But in the context of its full opinion, we think it
quite clear that the court was describing the specific conditions found in the Arkansas
penal system. Indeed, in the same paragraph it noted that “segregated confinement
under maximum security conditions is one thing; segregated confinement under the
punitive c​ onditions that have been described is quite another thing.” ​Ibid. ​(emphasis
in original).
The Department also suggests that the District Court made rehabilitation a constitutional
re- quirement. The court did note its agreement with an expert witness who testified “that
punitive isolation as it exists at Cummins today serves no rehabilitative purpose, and that
it is counterpro- ductive.” ​Id.​, at 277. The court went on to say that punitive isolation
“makes bad men worse. It must be changed.” ​Ibid. ​We agree with the Department’s
contention that the Constitution does not require that every aspect of prison discipline
serve a rehabilitative purpose. ​Novak v. Beto​, 453 F.2d 661, 670–671 (CA5 1971);
Nadeau v. Helgemoe,​ 561 F.2d 411, 415–416 (CA1 1977). But the District Court did not
impose a new legal test. Its remarks form the transition from a detailed description of
conditions in the isolation cells to a traditional legal analysis of those conditions. The
quoted passage simply summarized the facts and presaged the legal conclusion to come.
264. Petition for Writ of Certiorari at 10, Rhodes v. Chapman, 452 U.S. 337 (1981) (No. 80-332). Or, as Judge
Johnson put, a “prisoner has a right, secured by the eighth and fourteenth amendments, to be
rea- sonably protected from constant threat of violence and sexual assault by his fellow
inmates, and he need not wait until he is actually assaulted to obtain relief.” Pugh v. Locke, 406
F. Supp. 318, 329 (M.D. Ala. 1976) (quoting Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.
1973), which in turn had cited Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971)).
265. ​Rhodes,​ 452 U.S. at

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v. Indiana t​ hat the Excessive Fines Clause applied to the states,​266
the Court de- scribed the history of that clause as aiming to protect
against the aggressive use of state punishment powers.​267 ​Justice
Thomas, concurring, cited English his- torians, explaining that the
Excessive Fines Clause aimed to stop governments from deploying
their powers to “ruin” a person financially.​268
In short, when the various strands of the constitutional law regulating punishment are woven together, precepts emerge that punishment
must be pur- poseful, that some purposes are illicit, and that one
impermissible aim is to debilitate or ruin people. State punishment
has to preserve (rather than dimin- ish) people’s capacities to
function physically, mentally, and socially. And the reason that
constitutional law has shifted prison practices somewhat but has yet
to support profound change is that courts have thus far not banned
many de- bilitating practices that ought to fall under prohibitions on
“unnecessary pain,” “life’s necessities,” and the extrapolation from
economic to personal “ruin.”​269 ​Accomplishing that difficult goal
would build on what Jerry Lee Pugh, Worley James, Frank Johnson,
and many others pioneered when they insisted that con- stitutional
law constrained punishment powers. These litigants, lawyers, and
many judges aimed to stop states from treating people in ways that
prevented them from functioning as responsible and reciprocal
adults while in prison and upon release. Were the courts as well as
legislatures to embrace what Judge Johnson called habilitation (and
what I have discussed as the “anti-ruination principle”),​270 ​apply it to
incarceration, and elaborate its contours, we could re- sume what
Pugh, James, and Judge Johnson began, which was to require that
governments not set out to cause the deterioration of people
convicted of crimes.

266. 139 S. Ct. 682, 687 (2019). 267. ​Id. ​at 688–89. 268. ​Id. a
​ t 694 (Thomas, J., concurring)
​ MMONWEALTH ​801 (1840)). Justice Thomas viewed the history as making
plain that, as a “constitutionally enumerated right,” the Excessive Fines Clause was “a privilege
of American citizenship.” ​Id. a
​ t 698.
269. I provide more analysis of the history of punishment’s aims and the courts’ responses in Resnik,
(Un)Constitutional Punishments,​ ​supra n
​ ote 6, at 367–414.
270. ​Id. ​at

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​ ivil Action No. 74-57-N, filed in
the Middle District of Alabama, Feb. 26, 1974

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152 ​A​LABAMA ​L​AW ​R​EVIEW ​[Vol. 71:3:ppp
​ LLACE ​Civil Action No. 74-203-N, filed in
the Middle District of Alabama, June 21, 1974

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