Washington.-- The supervisor of the Louisiana prison guards told them "not to have too much fun" as they punched and kicked the handcuffed and shackled prisoner. It was the sort of stomach-turning scene that even when described nearly a decade later in court papers loses none of its power to provoke civilized people to reach for any remedy to redress the wrong.
But a provocation is not necessarily a justification for invoking the Constitution. Constitutional rulings require reasons relating actions to principles and precedents. Such reasons were lacking when the Louisiana case wound up in the Supreme Court, and divided the court.
The prisoner charged that the guards violated his constitutional protection against "cruel and unusual punishments." Last week the court ruled 7-2 for the inmate. The dissent was written by Justice Clarence Thomas, who may be the conservative his supporters hoped for and his opponents feared.
On October 30, 1983, the inmate got into an argument with a guard who summoned assistance and put the inmate in restraints. While marching him to a detention area, the guards punched him in the mouth, eyes, chest and stomach and kicked him. The inmate suffered minor bruises, swelling of his face, mouth and lip, several loosened teeth and a cracked dental plate.
The inmate sued the guards, citing the Eighth Amendment protection and seeking compensatory damages. A magistrate held that force was used unnecessarily and awarded him $800. But an appeals court reversed, holding that for the use of excessive force to constitute cruel and unusual punishment, it -- must result in serious injury. The appeals court ruled that the force used was objectively unreasonable because no force was necessary, but the inmate's case nevertheless failed because all sides conceded that the injuries were "minor."
BTC The question at issue in the Supreme Court concerned just that: Can force against an inmate constitute cruel and unusual punishment when the inmate suffers no serious injury?
Justice O'Connor wrote for the majority, joined by Justices Rehnquist, White, Kennedy, Souter and, in parts, Stevens, with Justice Blackmun concurring separately. Ms. O'Connor says an objective test of a prisoner's serious injury is not necessary to establish cruel and unusual punishment if there is the subject ingredient of a malicious and sadistic state of mind by the inflicter of force. "Otherwise," Justice O'Connor says, "the Eighth Amendment would permit any physical punishment, no matter how diabolical or inhuman, inflicting less than some arbitrary quantity of injury."
To this Justice Thomas, joined in dissent by Justice Scalia, responds: "Diabolical" acts are by definition serious and thus would satisfy the threshold test for Eighth Amendment relevance. Furthermore, why is the distinction between "serious" and other injuries more "arbitrary" than the distinction between "cruel and unusual" and other punishments?
Justice Thomas called the majority's position an unwarranted break with Eighth Amendment jurisprudence.
Actually, it is a second break; the first was in 1976. Until then, for 185 years the "cruel and unusual punishments" clause regulated only punishments meted out by statutes or sentencing judges. The authors of the Eighth Amendment thought it governed punishments as parts of sentences, not episodes concerning treatment of inmates during confinement.
In 1976 the court applied the amendment's protections to an inmate's complaints about experiences in prison. However, to limit the amendment's role in regulating prisons, the court then held that for a prisoner to appeal to it successfully, he must establish a "serious" injury.
When the amendment was cut loose from its historical mooring and applied to a broad range of prison-administration matters, the serious-injury requirement was thought necessary to prevent the amendment from becoming excessively elastic. That happened in this case.
The majority's opinion does not merely rest on rhetoric, it primarily is rhetoric about "society's expectations" and society's evolving standards of decency" and acts "repugnant to the conscience of mankind" and "concepts of dignity, civilized standards, humanity, and decency." But no amount of such language can transmute the majority's desire to do good into the one good the court is supposed to do -- faithful construction of the constitution.
Justice Thomas says that abusive behavior by prison guards is contemptible and may be tortious or criminal. But the inmate could have sought redress under state law, or even under the due-process clause of the Constitution. Instead, the court has made the Eighth Amendment even more elastic by allowing the inmate's claim that his injuries, although concededly minor, nevertheless constituted cruel and unusual punishment. This is evidence of the impatience and institutional short-cutting that accompanies what Justice Thomas identifies as the fallacy that the Constitution "must address all ills in our society."
Such Supreme Court decisions deepen the widespread misconception that people are helpless unless they can "constitutionalize" their legitimate grievances. As the judiciary both fosters and responds to that misconception, courts are drawn deeper into giving the Constitution whatever meaning serves the judges' problem-solving desire of the moment.
George F. Will is a syndicated columnist.