404 F.2d 571 (8th Cir. 1968), 18957, Jackson v. Bishop

Docket Nº:18957-18959.
Citation:404 F.2d 571
Party Name:William King JACKSON, Appellant, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee. Lyle Edward ERNST, Jr., Appellant, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee. Grady W. MASK, Appellant, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, et al., Appellees.
Case Date:December 09, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 571

404 F.2d 571 (8th Cir. 1968)

William King JACKSON, Appellant,

v.

O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee.

Lyle Edward ERNST, Jr., Appellant,

v.

O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee.

Grady W. MASK, Appellant,

v.

O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, et al., Appellees.

Nos. 18957-18959.

United States Court of Appeals, Eighth Circuit.

December 9, 1968

Page 572

Edward L. Wright, of Wright, Lindsey & Jennings, Little Rock, Ark., and William S. Arnold, Crossett, Ark., for appellants and filed brief.

Don Langston, Asst. Atty. Gen. of Arkansas, Little Rock, Ark., for appellee; Joe Purcell, Atty. Gen. of Arkansas, and R. D. Smith, III, Asst. Atty. Gen. of Arkansas, Little Rock, Ark., were with him on the brief.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

BLACKMUN, Circuit Judge.

The three plaintiffs-appellants, inmates of the Arkansas penitentiary, 1 in separate actions call upon us to direct the entry of an injunction barring the use of the strap as a disciplinary measure in Arkansas' penal institutions. The claim is that the district court

erred in refusing to hold that corporal punishment of prisoners is cruel and unusual punishment within the meaning of the Eighth Amendment to the United States Constitution, and in holding that the whipping of prisoners was not unconstitutional per se.

The plaintiffs' cases are not dissimilar, in tone and complaint, to an earlier non-class action by another trio of Arkansas prisoners. Talley v. Stephens, 247 F.Supp. 683 (E.D.Ark.1965). Chief Judge Henley in Talley granted, in part by consent, a substantial measure of relief, including restraint against forcing prisoners to work beyond their physical capabilities, against the withholding of reasonable medical attention, against the infliction of corporal punishment until 'appropriate safeguards' were established, and against reprisals for seeking access to the courts. Neither side appealed.

The present cases were filed in the Eastern District of Arkansas and were assigned respectively to Judge Young and Judge Harris. Upon agreement, the judges consolidated the three actions and, as a panel of two, jointly heard and decided them. After a full hearing, the court granted relief against 'the use of any such devices as the crank telephone or teeter board' and against 'the application of any whipping to the bare skin of prisoners.' It also restrained the use of the strap 'until additional rules and regulations are promulgated with appropriate safeguards * * *' Jackson v. Bishop, 268 F.Supp. 804, 816 (E.D.Ark.1967).

The use of the strap, therefore, as in the Talley case, was not totally renstrained. Because it was not, the plaintiffs appeal and seek here to remove that vestige. The defendant Superintendent has taken no cross appeal. Thus, the relief granted in the district Court remains effective and is not in issue before us.

We conclude that the plaintiffs are correct in their position and that Arkansas' use of the strap, irrespective of safeguards, is to be enjoined.

These actions were instituted in 1966 by handwritten petitions employing varying titles. 2 Each plaintiff asked

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for the appointment of counsel and permission to proceed in forma pauperis. Those requests were granted. Appointed counsel then filed amended complaints which have been treated by all concerned as petitions for injunctive relief under the civil rights statutes, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4). We are satisfied as to jurisdiction. We are also satisfied, as were the district judges, that the cases are appropriately to be regarded as class actions within the scope and reach of Rule 23, Fed.R.Civ.P.

We initially commend Edward L. Wright of Little Rock and William S. Arnold of Crossett, court-appointed counsel for the plaintiffs, and Don Langston, who argued the cases for the defendant, for their candid, unemotional and fair and able presentations. The services rendered by Mr. Wright and Mr. Arnold, and the expenses they have incurred, were without anticipation of reimbursement.

Although we are advised that a substantial percentage of the Arkansas prison population is black, the three plaintiffs, the prison officials concerned, and the witnesses are all white. No issue of race, as such, is present.

The facts, at this stage of the litigation, are in no real dispute. 3 Anyone interested in all the details may refer to the facts recited by Chief Judge Henley in his opinion in Talley v. Stephens, supra, and to those set forth in the opinion of the district judges in this case. We regard the following history and facts as particularly pertinent for our review:

1. The Arkansas penal institutions are under the general supervision of a five-man 'honorary' commission known as the State Penitentiary Board. Ark.Stat.Ann. §§ 7-201(6) and 7-202 and § 46-101. Actual day-to-day supervision is delegated by the Board to a full-time compensated superintendent. §§ 46-104 and 46-104.1. The Board also serves as a board of pardons and paroles and meets monthly. § 43-2801.

2. The State's penitentiary system contains two farm units. Cummins Farm, near Grady, Arkansas, has 15,500 acres and over 1,600 inmates. Tucker Farm, near Tucker, Arkansas, has about 4,500 acres and approximately 250 inmates. The Superintendent resides at Cummins. An assistant superintendent is at Tucker. The units are about 50 miles apart.

3. The Board has the duty to publish and appropriately post all rules and regulations it promulgates with respect to prisoner conduct. § 46-132. The Superintendent has 'general supervision and control of' and is 'solely responsible for, the discipline, management, and control' of all inmates. § 46-133.

4. The Superintendent, by statute, is authorized to use trusties as guards. § 46-122. In fact, trusties are used at Cummins and Tucker in supervisory and overseeing capacities in the barracks and fields and as guards. Trusties are selected by the Superintendent or his assistant. There are also wupervisory wardens at both units.

5. The primary activity of inmates is agricultural work with row crops and garden produce. However, a dairy herd and a beef herd are also maintained. The system is virtually self-sustaining so far as food is concerned.

6. The Board, by statute, § 46-158, has the duty to prescribe the mode and extent of punishments for violation of prison rules. One who inflicts, or causes to be inflicted, punishment more severe than is prescribed by the Board is guilty of a felony. Section 46-158, however, does not itself specify the type of punishment which may be imposed.

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7. Corporal punishment in the Arkansas system was authorized formally only in 1962 but evidently it had been employed for many years. At that time the Board, by resolution, authorized such punishment whenever, in the Superintendent's judgment, its infliction was necessary in order to maintain discipline. The resolution did not prescribe form or limit of punishment.

8. In the Talley action, the three petitioning inmates sought injunctive relief with respect to certain prison practices including the infliction of corporal punishment. The respondent there, a predecessor superintendent, consented to the granting of relief with respect to work requirements beyond a prisoner's physical capability and with respect to reasonable medical attention. 247 F.Supp. at 687. Chief Judge Henley found that, at that time, there were no written rules as to whipping; that such punishment was administered in the sole discretion of the one inflicting it, subject to an informal requirement that the blows not exceed ten for a single offense; and that two of those three petitioners had been whipped and one beaten by a field-line supervisor-trusty. The judge noted that the Supreme Court of Arkansas, over 80 years ago, deplored the whipping of convicts, Werner v. State, 44 Ark. 122 (1884), and that the Arkansas statutes do not themselves specifically prescribe whipping even as a punishment for crime. 4 He observed, however, that corporal punishment had not been viewed historically as a constitutionally forbidden cruel and unusual punishment. The court concluded that it was not prepared to say that such punishment was unconstitutional per se. Nevertheless, Judge Henley said, 247 F.Supp. at 689, this conclusion presupposes that the infliction of such punishment is surrounded by appropriate safeguards, that is, it must not be excessive, it must be inflicted dispassionately and by responsible people, and it must be applied under recognizable standards so that the convict knows what conduct will cause him to be whipped and how much punishment his conduct will produce. The Court found that those safeguards did not exist in the Arkansas system and enjoined further corporal punishment of the petitioners until they were established.

9. The Talley opinion was filed on November 15, 1965. As a result, the Board issued written rules and regulations on January 10, 1966. These were in effect until the district court decision in the present case was rendered June 3, 1967. In addition to a number of other provisions, the rules state that certain 'major offenses will warrant corporal punishment.' The ones listed are homosexuality, agitation, insubordination, making or concealing weapons, refusal to work when medically certified able to work, and participating in or inciting a riot. They further state:

No inmate shall ever be authorized to inflict any corporal punishment under color of prison authority on another inmate. Punishment shall not, in any case, exceed Ten lashes with the...

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