Unusual, If Not Cruel, Dissent


Keith Hudson got into an argument with another prisoner at Louisiana State Prison. Two correctional officers handcuffed and shackled him, removed him, unresisting, from his cell and beat and kicked him. By any definition of the word, that was "punishment." By any informed contemporary definition of the word, it was "cruel." Therefore, it seems clear to us, as it did to seven members of the most conservative Supreme Court in nearly 60 years, it was a violation of the Bill of Rights' ban on "cruel and unusual punishment."

Though we would not label the two dissenters (Justices Clarence Thomas and Antonin Scalia) "cruel," as some critics have, we find their views, as expressed by Justice Thomas in a dissent, "unusual." He wrote that punishment is not unconstitutionally cruel unless the pain and suffering inflicted are "serious." That is not a correct reading of precedent. The court did use seriousness of injury as one criteria in a previous case, but at the same time it said any punishment involving force that is "wanton" and "unnecessary" and is meant to punish and results in more than minimal harm is also a violation of the Eighth Amendment.

Justice Thomas says such rough treatment as cited in this case occurred routinely in the early life of the Republic without being ruled unconstitutional. That is embarrassingly beside the point. The Bill of Rights did not even apply to state prisons then. Furthermore, and just as important, as Justice Sandra O'Connor reminds him in the opinion of the court, the Eighth Amendment's application has changed as society's concept of civilized standards of treatment of those in custody has changed. That evolution of standards is what "animates" the amendment, she said.

Justices Thomas and Scalia complain the court's opinion does not rest on "objective" determinations. But what is undisputed is that Keith Hudson suffered bruises to his face, mouth and lips, some teeth were knocked loose and his partial dental plate was cracked so badly he couldn't use it. How objective can you get? A beating that produced this result or even a worse one in a situation in which a prison guard was defending himself or trying to restore order in a dangerous melee might be neither cruel nor unusual and therefore not unconstitutional. But recall that this prisoner was led helpless from a cell to his beating.

Given the facts, the dissent can only be understood as a display of intellectual arrogance and ideological rigidity. We have come to expect that of Justice Scalia. We are coming to expect it of Justice Thomas.

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