The Corporality of Incarceration

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Ryan Sakoda

In Impermissible Punishments: How Prison Became a Problem for Democracy, Judith Resnik presents a thorough, penetrating, and insightful analysis of the transatlantic history of punishment over three centuries. The book delves into individual accounts of those who suffered from the horrible tools of punishment, provides a detailed transatlantic narrative of the development of and reform to punishment up to the present day, and explains how incarcerated people exercised their rights and resisted the most extreme forms of punishment. 

The introduction of the book immediately puts the brutality of the carceral system into stark relief, opening with an image of Winston Talley’s 1965 handwritten petition that challenged the use of the whip as punishment in the Arkansas prison where he was incarcerated. A modern audience might be surprised that such punishment existed as recently as the 1960s and might expect that the court hearing the case would quickly condemn the brutality of such punishment and grant the relief Talley sought: “order such floggings stopped. And the Whipp destroyed.” (p. 1) Furthermore, as Resnik points out, “One might assume that ending whipping would not have been hard the decade after the UN’s Standard Minimum Rules for the Treatment of Prisoners called for its abolition.” (p. 171) Talley, however, did not win his case. Chief Judge Henley, ruling in the case, did not abolish the whip, but instead required that the Arkansas prisons “establish by appropriate rules and regulations safeguards surrounding the infliction of corporal punishment on inmates so that the infliction of such punishment will not constitute cruel and unusual punishment.” (p. 190) Henley showed a high level of deference to prison officials and granted them “wide latitude and discretion in the management and operation of their institutions, including the disciplining of inmates” (p. 183) Resnik terms this the prison discount, where “rights are routinely cabined by what corrections officials argue to be situationally demanded.” (p. 7) 

Although Talley lost his case, Resnik emphasizes that his petition was an important step for prisoners’ rights due to the fact that his challenge was actually heard. As Resnik states, “[Talley] broke centuries of hegemonic power...[Talley and other] prisoners established a new proposition—that incarcerated people had the legal authority to call for limits on sovereign punishment powers.” (p. 6) In 1968, use of the whip was outlawed in Jackson v. Bishop.

By modern standards, corporal punishment of any form seems archaic. And to the modern reader, such forms of punishment may feel distant from the current discussions around prison reform. Resnik’s retelling of this history reminds us that these trials were not all that distant in time (only about 60 years ago), and the book makes these forms of punishment even more concrete by including photographs of the straps and the prison farms. Although painful to read and see, bringing these stories and images to light is one of the major achievements of the book. Prisons are purposely built out of sight and behind giant walls with little if any visibility into what goes on inside. 

This lack of transparency is perhaps most apparent with respect to the practice of solitary confinement—the modern prison’s most severe form of confinement—that has generated movements for reform both inside and outside the prison walls. Today, solitary confinement remains a commonly used practice across the country. The 2021 Correctional Leaders Association (CLA)-Liman survey estimated that 3.4 percent of the prison population was being held in solitary confinement for 15 or more continuous days with 6,000 individuals being held in solitary confinement for over a year.[1] The 2023 Solitary Watch and the Unlock the Box Campaign report estimated that in 2019 there were a total of 122,840 people in solitary confinement in prisons or jails on any given day (over 6 percent of the incarcerated population).[2] 

Through legal challenges, hunger strikes, and other forms of protests, incarcerated people have advocated for restrictions to the practice of solitary confinement. Resnik’s history shows us some of the parallels between the circumstances of Talley’s 1965 petition and these current movements for reform of solitary confinement. As was the case with respect to whipping, the standards set out in the U.N. Standard Minimum Rules for the Treatment of Prisoners support these reform efforts. In 2015, the United Nations made major revisions to their Standard Minimum Rules—which they renamed the Nelson Mandela Rules—including a new provision stating that any stay in solitary confinement for over 15 consecutive days is considered cruel, inhuman, or degrading treatment akin to torture. In addition, legislators in many states introduced bills restricting the use of solitary confinement and a few of these bills have been successfully passed into law. 

The courts, however, which were (eventually) the source of relief from corporal punishment faced by Talley and other incarcerated people six decades ago, have been hesitant to establish meaningful restrictions on the use of solitary confinement. As Resnik explains, their decisions have constituted “a continual ceding of decision-making to prison officials.” (p. 557) In the recent decades, the Court, Resnik emphasizes, “has been pivotal in sustaining both hyperdensity and profound isolation as ‘ordinary incidents’ of prison life.’” (p. 557) Thus, it seems that the courts have viewed solitary confinement as just another, albeit harsher, form of incarceration, but categorically different from the corporal punishment outlawed in the previous century. 

Resnik rejects this narrow definition of “corporal punishment.” She states, “[Chief Judge] Henley’s painful account of Arkansas’ prisons’ density, noise, and violence is why I do not use the words ‘corporal punishment’ interchangeably with the term ‘whipping.’ Prisons are all-engulfing structures that impose on people’s being (staff included) from head to toe. It is the corporality of incarceration that is my topic of which Arkansas is an example, and not an outlier” (p. 8). I view this conceptual point as an incredibly important one, particularly for current prison reform movements. 

The courts, however, have generally viewed the concept of corporal punishment more narrowly, distinguishing and discounting psychological injury from physical injury. In a 2018 article, Jules Lobel and Huda Akil point out the discounting of psychological injury in solitary confinement cases as part of a broader phenomenon in the law, where we see the discounting of emotional and psychological injury in favor of physical injury in other areas such as tort law.[3] 

Current knowledge of solitary confinement, however, points to the physical harm of the practice and provides evidence of its corporality even under narrow conceptualizations of corporal punishment. For example, prolonged periods of solitary confinement have been known to impact the eyes, with many stories of individuals losing peripheral vision and depth perception from years spent isolated to a tiny cell. Resnik cites Albert Woodfox’s memoir describing his practice of doing eye exercises to prevent the loss of depth perception. (p. 553) Solitary confinement can also have impacts on the cardiovascular system. Dr. Brie Williams, based on the records from a 2015 federal lawsuit, reports that the prevalence of hypertension among a group of 664 incarcerated men ages 27-45 was 31 percentage points higher among those in solitary confinement than those individuals living in the general population.[4] Solitary confinement can also have impacts on the physical brain. As described in a 2018 article by Jules Lobel and Huda Akil, existing research has established that social isolation has harmful physical impacts on the brain, and the key features of solitary confinement produce the conditions associated with these physical changes to the brain.[5] The prolonged lack of sunlight can also impact the body. With the minimal time outdoors, where “[m]any outdoor exercise units have high concrete walls and partial roofs, ... some prisoners live for years without seeing the sky.” This prolonged lack of sunlight, Dr. Brie Williams states, can result in vitamin D deficiency and weaken bones, “putting older adults at risk for fractures and falls.”[6] These, along with other physical impacts of solitary confinement,[7] demonstrate the corporal aspects of the practice and suggests that restrictions on the use of solitary confinement warrant the same consideration given to challenges to corporal punishment six decades ago. 

Resnik’s book is a meticulous and sweeping history of punishment and an incredible resource for advocates, scholars, and the general public. I have learned so much from it, and I know I will be rereading and revisiting it over the next months and years to take in its full richness. It is a huge step forward in our understanding of the origins and development of our criminal legal system and provides us with the context and language to help us move our system forward to a more humane place.

Ryan Sakoda is Assistant Professor of Law at UC Berkeley School of Law. You can reach him by e-mail at rsakoda@berkeley.edu.