Even the Worst Thug Is Human, Your Honor

Catching what seems to be a national mood, the U.S. Supreme Court recently handed down two big victories to death penalty opponents, prompting observers to wonder whether a major shift is on its way in terms of judicial willingness to protect the constitutional rights of criminal offenders.

The answer is no, as can be seen in another of the court’s recent cases. Hope vs. Pelzer didn’t make the headlines. But it makes clear how far we still are from a time when courts are ready and willing to protect convicted criminal offenders from official cruelty and caprice.

In 1995, Larry Hope was an inmate at Limestone Correctional Facility in Capshaw, Ala. One June day, after an altercation with guards at a work site, he was placed in leg irons and driven back to the prison.

On arrival, he was handcuffed to a horizontal bar known as the “hitching post” and left standing with his arms above his shoulders for seven hours in the sun. He had no shirt, little water and no bathroom breaks. Guards stood by and taunted him.

Despite the usual futility of such a move, Hope sued prison officials, alleging that this treatment was a violation of the 8th Amendment prohibition against cruel and unusual punishment.

Hope lost in the trial court, and he lost on appeal. It took six members of the U.S. Supreme Court to find that Hope’s treatment at the hands of the guards was so obviously cruel that no reasonable person could think the acts passed constitutional muster.

And still, three members of the court disagreed. Their reasoning? Recent Alabama cases had consistently upheld the punitive use of the hitching post.

In one prior case, for example, an inmate had been handcuffed to the post for a slightly longer time and in greater heat--eight hours in 95 degrees--without food, water or bathroom breaks, and “suffered lacerations, pain and swelling in his arms” as a result. Given this legal precedent, the dissenting justices found no basis to think “it should have been clear” to the guards in the Hope case that their conduct was unconstitutional.

Ordinarily, the dissent would have a point. When courts consider the liability of state officials for constitutional violations, they generally look to previous cases to see whether the law was “clearly established” and thus whether officials had “fair warning” that their actions were illegal.

But some actions are so obviously beyond the pale of acceptable behavior toward others in a civilized society that ordinary common sense about what acts are cruel is all one should need to know.

True, the system worked in this case: Hope ultimately won his appeal. But it took the U.S. Supreme Court to find in his favor. And it should give us pause that three members of our highest court looked at this case and saw no obvious cruelty.

Would they have reached the same conclusion had it been a friend or family member who had been chained to a post and left to roast for hours in the sun? This question is only partly rhetorical. Judges are, after all, the governmental officials whose assigned role in our constitutional scheme is to check the excesses of the majority, especially when those excesses are directed against politically vulnerable minorities. To perform this role, they must rise above popular prejudice and retain a capacity for empathy and identification even with society’s most despised members. Hope, a convicted armed robber, is no angel. But he is a human being and deserves to be treated like one.

Unfortunately, as the Hope dissent shows, judges can get so caught up in the word games of the law that they forget it is fellow human beings whose rights they are supposed to be protecting. There are few people in our society as powerless, or as widely loathed, as incarcerated offenders. If constitutional protections against abuses of official power are to mean anything, the courts must take claims of state overreaching brought by members of this group as seriously as they take those of other citizens.

Until judges at all levels are prepared to supplement their formalistic legal reasoning and traditional deference to government officials with a healthy dose of empathy for convicted criminals, we can expect no shift in the current course of American criminal justice.

*

Sharon Dolovich is an acting professor of law at UCLA School of Law. She teaches criminal law and prison law.