Kirwan, Peter Michael

English

University of Montana

Montana Law Review Volume 29 Issue 2 Spring 1968 Article 9 1-1-1968 Constitutional Laws: Cruel and Unusual Punishment—Solitary Confinement (Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal. 1966)) Peter Michael Kirwan University of Montana School of Law Follow this and additional works at: https://scholarworks.umt.edu/mlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation Peter Michael Kirwan, Constitutional Laws: Cruel and Unusual Punishment—Solitary Confinement (Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal. 1966)), 29 Mont. L. Rev. (1967). Available at: https://scholarworks.umt.edu/mlr/vol29/iss2/9 This Legal Shorts is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. MONTANA LAW REVIEWfeasor's liability to be determined at the whim of a plaintiff.58 This isirrational, inequitable and not in accord with the mores of the com-munity.DOUGLAS M. GREENWOODCONSTITUTIONAL LAW-CRUEL AND UNUSUAL PUNISHMENT-SOLITARY CON-FINEMENT-The prisoner was incarcerated in the California CorrectionalTraining Center at Soledad. He was placed in solitary confinement for 12days. The cell, approximately 6' x 8', was filthy and unheated; it had nointerior lights, no facilities for personal hygiene, and no furnishings excepta toilet which flushed from the outside of the cell. For eight days theprisoner was kept naked, for the other four days he was given a roughpair of overalls to wear. He was denied adequate medical treatmentprior to, during, and after his confinement. The prisoner brought thisaction for an injunction against such punishment and for monetaryrelief. Held, confinement in a cell maintained in the foregoing conditionfalls within the Eighth Amendment prescription against cruel and unusualpunishment. Permanent injunctive relief was granted but the claim formonetary relief was denied. Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal. 1966).The Eighth Amendment to the United States Constitution prohibitsany punishment which is cruel and unusual.1 The scope of the EighthAmendment has expanded greatly since its adoption and today prohibitspunishments which were acceptable in former times. If the instant casehad arisen twenty years ago, it is likely that no relief would have beengranted because then society would not have considered such punishmentcruel and ususual.' But in 1966 standards of justice had changed andthe repulsive conditions attending the solitary confinement were foundintolerable to society and the punishment was held to be cruel and unusual.The prohibition against cruel and unusual punishments, which original-ly appeared in England in the Laws of Edward the Confessor, can betraced to the Magna Carta and to the English Bill of Rights.! The EighthAmendment, as originally adopted, was intended to be much broader thanthe rule in England. For example, punishments allowed in Englandunder the Bill of Rights included dragging to the place of execution,5'PROSSER 275."'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and un-usual punishments inflicted."I U. S. CONST. amend. VIII.2Compare the extreme facts in Louisana ex rel Francis v. Resweber, 329 U: S. 459(1947) discused in text at note 14, infra.834 MINN. L. REv. 134, 135 (1950) ; Weems v. United States, 217 U. S. 349, 371 (1910).[Vol. 291Kirwan: Recent DecisionsPublished by ScholarWorks at University of Montana, 1967RECENT DECISIONSembowling alive, beheading, quartering, public dissection, burning alive,cutting off a hand or ear, slitting the nostrils and branding.' Althoughthe Eighth Amendment was originally adopted to prohibit these tortures8the framers also intended it to have a wide enough application to prohibitforms of cruel and unusual punishment which might arise in the future.'The Eighth Amendment does not define cruel and unusual punishmentand it has not been defined by the Supreme Court." However, the Courthas developed some standards with which to determine whether penalsanctions fall within the proscription of the Eighth Amendment. The firstcases which construed the Eighth Amendment questioned whether execu-tion by shooting' or electrocution' would be cruel and unusual, and theCourt held that neither were. The Court said that in order for executionto be cruel and unusual within the meaning of the Eighth Amendmentit must be more than the mere extiniction of life and involve torture orlingering death similar to those enumerated above.' Thus the Court wasapplying the Eighth Amendment in the manner contemplated by itsframers.The Court began to expand the scope of the Eighth Amendment inWeems v. United States (1910)" when it reversed a sentence which includedfifteen years of hard and painful labor with chains on the ankles andwrists, disqualification from public office and surveillence for life. Thiscase represents a departure from the historical application of the EighthAmendment because the punishment involved was not similar to thetortures originally prohibited by the Eighth Amendment." The cases fol-lowing Weems continued to expand the scope of the Eighth Amendment.'Perhaps the most important development was first expressed in the min-ority opinion in Louisiana ex rel Francis v. Resweber (1947)." The peti-tioner was sentenced to death by electrocution, but the first attempt failedbecause of a malfunction in the electric chair. The state wanted to tryagain but the prisoner contended that a second attempt would be crueland unusual and petitioned the Supreme Court for relief. The Courtauthorized the second attempt because electrocution was sanctioned asa humane and nontorturous means of execution.' The Court reasonedthat the Eighth Amendment of the Constitution only prohibited means'4 ]BLACKSTONE, COMMENTARIES *377 (Lewis ed. 1900).'Wilkerson v. Utah, 99 U. S. 130, 136 (1878).'Weems v. United States, supra note 3, at 373.7Id. at 368; Instant case at 679.'Wilkerson v. Utah, supra note 5.OIn Re Kemmler, 136 U.S. 436 (1890).10M. at 447.uWeems v. United States, supra note 3."Id. at 373."Mickle v. Henricks, 262 F. 687 (D. Nev. 1918). In Davis v. Berry, 216 F. 413(S. D. Iowa 1914), vasectomy as a criminal punishment was held to be cruel and un-usual."Louisiana ex rel. Francis v. Resweber, supra note 2."Id. at 464.1968]2Montana Law Review, Vol. 29 [1967], Iss. 2, Art. 9https://scholarworks.umt.edu/mlr/vol29/iss2/9MONTANA LAW REVIEWof execution which were cruel in themselves, like embowling and burning,and did not prohibit means of execution which, like electrocution, wereconsidered essentially humane.' The minority contended that electrocutionwould be carried out in installments and would therefore be cruel andunusual." They stated that the determination of whether a punishmentis cruel should depend on the fundamental instincts of civilized man, andthat in 1947 a second attempt at electrocution would clearly be unaccept-able to American society. In 1958 the Court adopted the standard pro-posed by the minority in the Francis case."6 The concept underlying theprohibition against cruel and unusual punishment is the dignity of manand the Eighth Amendment must draw its meaning from the evolvingstandards of decency that mark the progress of a maturing society."Today, in determining whether a punishment is cruel and unusual,the courts examine it in the light of contemporary human knowledge andthe mores of society.' In other words, punishment is cruel and unusualif society thinks that it is. With this new concept the courts have extendedthe prohibition against cruel and unusual punishment to areas whichwould have been closed by the older application of the Eighth Amendment.A Statute punishing desertion by revoking citizenship has been heldinvalid because the punishment was disproportionate to the offense com-mitted.' Statutes punishing the status of narcotic addiction have beendeclared unconstitutional because addiction is an illness.' Similarly, theCircuit Court of the District of Columbia declared a conviction of achronic alocholic unconstitutional as punishment of the uncontrollablesymptoms of an illness.'The administration of non-capital sentences in state prisons is anotherarea of penal law which the new concept of the Eighth Amendment hasaffected. Although the Eighth Amendment is compulsory on the statesthrough the Fourteenth Amendment," the federal courts have been ex-tremely reluctant to interfere with state prison officials in their ad-ministration of internal prison affairs. The judicial attitude in the pasthas been to ignore the treatment received by convicts if their sentenceswere within the bounds of valid penal statutes.' This has menat that ifa prisoner was incarcerated under a constitutionally acceptable sentencehe could get no judicial relief no matter how cruely he was treated while"Electrocution was accepted as a valid means of execution in In Re Kemmiler, supranote 9."Louisiana ex rel Francis v. Resweber, supra note 2 at 474."Trop v. Dulles, 356 U. S. 86 (1958).' 9 d. at 101."Robinson v. California, 370 U. S. 660, 666 (1962).nTrop v. Dulles, supra note 18, at 122."Robinson v. California, supra note 20.nEaster v. District of Columbia, 361 F.2d 50 (D. C. Cir. 1966); contra, Driver v. Hin-nant, 243 F. Supp. 95 (E.D.N.C. 1965).14Robinson v. California, supra note 20, at 664.nPerkins v. North Carolina, 234 P. Supp. 333, 337 (W.D.N.C. 1964); United States v.Fay, 211 F. Supp. 812, 814 (1962).[Vol. 293Kirwan: Recent DecisionsPublished by ScholarWorks at University of Montana, 1967RECENT DECISIONSthe sentence was being discharged. A case decided in 1952" demonstratesthis attitude of the Court. There the prisoner offered to prove that hewas beaten with a nine pound strap with five metal prongs on the endof it; that he had scars and wounds from such beatings; that he was forcedto work all day in the sun without a shirt or hat; and that he was forcedto submit to homosexual activities of other convicts.' The court ignoredthese allegations and avoided determining whether this treatment wascruel and unusual by deciding the case on a procedural basis. It heldthat the Petitioner had to exhaust all the remedies available in the StateCourt before he could seek relief in federal court.'Although the courts still consider internal prison discipline primarilya matter of state concern,' they no longer subscribe to this strict "handsoff" attitude.' The federal courts will intervene if the means used toenforce discipline is excessively cruel or is disproportionate to the in-fraction of the prison rules.' But courts have said that they will notallow sentimental or romantic views of Constitutional Rights to inducethem to interfere with necessary and reasonable prison discipline.' Norelief will be granted to complaining prisoners unless the treatment is ofsuch. a character as to shock the general conscience or is intolerable tocontemporary standards of justice."The inherent nature of penal institutions makes protection of prisonersagainst cruel and unusual punishment difficult because prison officialscontrol the evidence. In many instances there may be no support fora prisoner's allegations that he was cruely treated. However, if the prisonercan prove his allegations, the instant case illustrates the modern judicialviewpoint and demonstrates that a conscientious court can effectivelyprotect prisoners against cruel and unusual punishment. The Court hassaid that unless a punishment serves a legitimate penal function it willbe prohibited3' and retribution is no longer recognized as a legitimatepenal function.' Though'solitary confinement by itself is not prohibited,when it is combined with such cruel and unnecessary treatment that itbecomes an instrument of retribution it violates the Eighth Amendment.'In the instant case solitary confinement was prohibited because of the"Sweeney v. Woodall, 344 U.S. 86 (1952).1Id. at 91-92 (dissenting opinion).'Id. at 90.'United States v. Pate, 223 F. Supp. 202 (N.D. Ill. 1963); Redding v. Pate, 220 F.Supp. 124 (N.D. Ill. 1963)."Loux v. Rhay, 375 F.2d 55 (9th Cir. 1967) ; Cullum v. California Dept. of Corrections,267 F. Supp. 524 (N.D. Cal. 1967); Wright v. McMann, 257 F. Supp. 739 (N.D.N.Y.1966)."Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965) ; Fulwood v. Clemmer, 206 F. Supp. 370,379 (D.D.C. 1962)."Wright v. McMann, supra note 30, at 744."Lee v. Tahash, supra note 31, at 972."Williams v. New York, 337 U.S. 241, 248 (1949)."See Trop v. Dulles, infra note 39.wLandman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1944); Fulwood v. Clemmer, supranote 31, at 379; Wright v. MeMann, supra note 30, at 744.1968]4Montana Law Review, Vol. 29 [1967], Iss. 2, Art. 9https://scholarworks.umt.edu/mlr/vol29/iss2/9MONTANA LAW REVIEWfilthy cell, the darkness, the lack of facilities for personal hygiene andthe absence of medical attention. It was recognized that prison officialscan usually fulfill their functions without intervention from the courtsbut when it appears, as it did in the instant case thatthe responsible prison authorities in the use of the strip cells (orany other disciplinary action) have abandoned elemental concepts' ofdecency by permitting conditions to prevail of a shocking and debasednature, then the courts must intervene -and intervene promptly -to restore the primal rules of a civilized community in accord withthe mandate of the Constitution of the United States.'The cruel and unusual punishment prohibition of the Eighth Amend-ment has undergone extensive change since its inception and has be-come a dynamic instrument with which the courts can insure that crim-inal punishments are acceptable to contemporary society. As societycontinues to develop, its attitude toward punishment may change andpunishments which are presently acceptable may become unconstitutional.Probably the most dramatic illustration of this is in the changingattitude toward capital punishment. In the past it was 'assumed thatcapital punishment served as an effective deterrent to those inclinedtoward serious crime. Recent studies establish that this deterrent effectis virtually non-existant.' Capital punishment then, if it is to maintaina position of legitimacy, must serve some other penal function whichis valid in the light of today's societal mores.' Capital punishment doesnot serve the function of rehabilitation so the only legitimate end itcan serve is to insulate society from future transgressions. Whethercapital punishment is unconstitutional depends upon whether societyfeels that it needs such extreme protection. If the Court concludes thatsociety feels that criminal executions are unjust it will be compelledto find that capital punishment is cruel and unusual and prohibited bythe Eighth Amendment.The criterion for determining whether any punishment is cruel andunusual is the contemporary standard of justice. When a case ariseschallenging a punishment the function of the Court will be to determinethe attitude of contemporary society. The attitude of society is notbound by the past decisions of the Court, it may not be based on logicor reason but rather may be grounded on emotion, prejudice and mis-conception. The rationale behind society's present attitude is irrelevant.Under the Eighth Amendment the attitude itself determines, and apunishment is unconstitutional if society feels that it is cruel and unusual.PETER MICHAEL KIRWAN"Instant case at 680.3'MODEL PENAL CODE, Sellin, The Death Penalty, following p. 220 (Tent. Draft. No. 9,1959).STrop v. Dulles, supra note 18, at 111, stated the purposes of penal law as: 1) Re-habilitation, 2) Deterrents of wrongful acts by the threat of punishment, and 3) In-sulation of society from dangerous individuals.[Vol. 295Kirwan: Recent DecisionsPublished by ScholarWorks at University of Montana, 1967

Constitutional Laws: Cruel and Unusual Punishment—Solitary Confinement (Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal. 1966))

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Constitutional Laws: Cruel and Unusual Punishment—Solitary Confinement (Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal. 1966))

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