- The Washington Times - Thursday, April 18, 2002

Lawyers for 17 states told Supreme Court justices yesterday that shackling stubborn chain gang convicts for hours in the sun without water or bathroom breaks in order to coerce good behavior is not necessarily cruel and unusual punishment.
"It is part of prison life," Alabama Solicitor General Nathan A. Forrester said as he sought to block trial of a civil rights lawsuit against three officials at Limestone Correctional Facility.
The officials handcuffed a shirtless inmate, Larry Hope, to a head-high rail for seven hours. Guards who brought water close to Hope taunted him by pouring it on the ground and giving some of it to prison dogs, Justice Ruth Bader Ginsburg said.
"Inmates were routinely kept on the 'hitching post' for the rest of the day," said Hope's lawyer, Craig T. Jones, of Atlanta.
The Supreme Court has never ruled on the widespread practice of restraining prisoners for punitive reasons, but Mr. Jones said officials were on notice from a 1974 appeals court decision. It declared unconstitutional the use of punitive restraint among a range of other practices at Mississippi's notorious Parchman Penitentiary.
Alabama is the only state whose regulations officially authorize "hitching posts" horizontal bars 4 to 5 feet high to which recalcitrant chain gang prisoners are handcuffed. It also requires offering restrained inmates water and bathroom breaks every 15 minutes.
Protecting prison workers from lawsuits brought a cross-section of 15 states to side with Alabama in court. They included Connecticut, Hawaii, Idaho, Indiana, Louisiana, Mississippi, Missouri, Nebraska, Nevada, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, and West Virginia, as well as Guam.
Gene C. Schaerr, the Washington lawyer for the states, told the justices he would advise guards only that they cannot act in such a manner "with a subjective awareness of serious harm that would come to these inmates."
He defended guards who make "split-second judgments unlike judges," which drew instant anger from Justice Sandra Day O'Connor.
"This is not split-second. They had seven hours," she said.
The 1995 incident occurred after Hope was in a fight and attempted to assault a guard with a tool. Photos of his ordeal were published in the New York Times. Hope, who was hitched to a post on two separate occasions, is now out of prison, and court records do not reflect his crime or sentence.
Justices sounded ready to go beyond the technical issue and decide the underlying question: When is restraint no longer a justifiable penal tactic and therefore a punishment?
The legal point is whether the guards forfeited "qualified immunity" from a lawsuit by violating a "clearly established" constitutional right.
Civil trials are likely if the justices rule that the guards should have known their actions were unconstitutional, despite Alabama's Regulation 429, which allows the use of "hitching posts," and qualified approval from the U.S. Justice Department.
Alabama prison officials have a log that details guards offering Hope water and bathroom breaks every 15 minutes the first time he was restrained, but they did not produce one for the day he was photographed.
"Can he be kept hanging to the rail for as long as the state chooses to do it?" Justice O'Connor asked Mr. Forrester.
"If it is being done because he is refusing to work," the Alabama state lawyer replied. He said the detention merely confines a prisoner until he agrees to resume work, under state regulations. "He was not put on the bar for a strictly punitive purpose."

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