Even Criminals Have Some Rights : Justice Thomas’ dissent in prison-beating case is jarring and worrisome

In 1983, Keith Hudson, a prisoner in the Louisiana State Penitentiary, argued with a prison guard after the guard yelled at him for quarreling with another inmate. To punish Hudson, two guards handcuffed and shackled him, then beat him. A third guard stood by, admonishing his colleagues, “Don’t have too much fun.”

Hudson’s injuries included a split lip, bruises, loosened teeth and a broken dental plate. But while his injuries were not “significant,” a seven-member majority of the Supreme Court last week rightly declared that the “malicious and sadistic” beating that had caused them violated the 8th Amendment’s ban on “cruel and unusual punishment.”

Justice Clarence Thomas, however, disagreed. In a disturbing opinion, he and Justice Antonin Scalia dissented from the view of the majority, the Justice Department, Human Rights Watch and the ACLU. Thomas drew a fatuous distinction between official sentences and conditions within a prison. He contended that the former has historically come within the 8th Amendment’s meaning of “punishment” but the latter has not. This argument may cheer some extremists but it defies common sense and humanity. Thomas argued that although abuse by prison guards is “deplorable” and perhaps “criminal,” it does not violate the 8th Amendment unless it causes “significant” injury. To find otherwise is “yet another manifestation of the pervasive view that the . . . Constitution must address all ills in our society.”

Justice Sandra Day O’Connor rejected these chimerical distinctions in a stinging rebuke to her colleague: “To deny the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the ‘concepts of dignity, civilized standards, humanity and decency.’ ”

Thomas’ dissent is particularly appalling given his careful attempt to cast himself as “bring(ing) something different to the court,” namely an empathy for the downtrodden.

In an open letter to Thomas, retired federal judge A. Leon Higginbotham Jr. recently warned him: “Our Constitution has an unavoidable--though desirable--level of ambiguity, and there are many interstitial spaces . . . you will have to fill in. . . . You . . . cannot avoid putting your imprimatur on a set of values. The dilemma will always be which particular values you chose to sanction in the law.” We can only hope that Thomas’ dissent in this case is no true index of his values.