Clarence Thomas, prison brutality,
    and judicial restraint:
    an exchange of views

Was Clarence Thomas just doing his job?

A reader learned in the law objects that my attack on Justice Thomas’s dissenting opinion about prison brutality was unfair and misconceived the role of the appellate judge. Below is the full exchange, with my correspondent’s words indented and mine in dark blue.

Given that you linked to his opinion, you realize that all Thomas actually said about the extent of the prisoners’ injuries was” “The magistrate who found the facts in this case emphasized that petitioner’s injuries were “minor.” App. 26, 28. The three judges of the Fifth Circuit who heard the case on [p18] appeal did not disturb that assessment, and it has not been challenged here.”

I know you’re not a lawyer, but I also know you’re sophisticated enough to know that Supreme Court Justices don’t engage in independent assessment of facts determined by lower courts that are not in dispute.

I’ve read that opinion carefully. Its sneering indifference to the suffering of the prisoner is enough to make me gag. So is its bland recitation of all the things that might happen in response, even though in fact they won’t.

As you say, the facts in the case were undisputed: two guards beat a shackled prisoner with their firsts, leaving him with loosened teeth, a broken dental plate, and a bruised and swollen face. Pause, just for a moment, and imagine that treatment being inflicted on you, or someone you care about, rather than a nameless, faceless prisoner. If, having done so, you don’t share my anger, I’d be curious as to the reason.

That the injuries were “minor” in a medical sense &#8212 not requiring hospitalization &#8212 doesn’t imply that they were trivial. And yet that’s the inference Thomas chose to draw. Thomas’s dissent, had it been adopted, would have been a blanket invitation to every prison guard in the country to inflict as much pain as he wanted to, as long as there were no broken bones. Like Lincoln, I’d like to see people who reason this way on the receiving end of the injuries they think it beneath the dignity of the law to notice.

Those are all legitimate points (though none of them go to whether Thomas is correct in interpreting “cruel and unusual punishment” to not encompass extra-legal punishment) but those points can all be made without making it seem that Thomas was the one who looked at these facts and determined that the injuries were “minor.” What he really did was assert that it was undisputed that the injuries were minor, and then, as you argue, arguably treated them as not simply minor but “trivial.”

As you say, I never went to law school. Perhaps if I had, I could consider seriously the question whether the Constitution allows the state to permit its agents to do extra-legally what it forbids the state to do after due process of law. But I doubt it. That’s part of the reason I went to policy school instead of law school.

Of course nothing would have barred Thomas from writing “Since the injuries involved &#8212 a bruised and swollen face, loosened teeth, and a cracked dental plate inflicted in the course of the beating a shackled man by two of the men assigned to guard him, with the apparent approval of their supervisor &#8212 were found below to be ‘minor,’ and since that finding is not challenged either below or before us, this Court must accept that conclusion, whatever my brethren and I might privately believe, or might hold in a contested case, about whether such utterly unjustified brutality inflicts only ‘minor’ injury.” (See JusticeFrankfurter’s opinion in the first flag salute case; believing, rightly or wrongly, that the Court had no authority to over-rule the school board, Frankfurter made it clear that his refusal to do so did not involve any substantive agreement with the board’s desire to oppress a religious minority.) But doing so would have required that Thomas possess a sense of right and wrong.

I’ve promised my reader the last word, and will post that last word when and if it comes in.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com