Balkinization: An Enduring Problem: How to Prevent the Abuse of Prisoners

An Enduring Problem: How to Prevent the Abuse of Prisoners

Guest Blogger

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

Fiona Doherty

Judith Resnik’s outstanding new book, Impermissible Punishments, provides a harrowing account of prisoners in Arkansas petitioning for a federal right not to be whipped in prison, mostly for not picking enough cotton. Winston Talley, the author of the petition that launched the federal litigation, testified vividly in court about his experience of being whipped. At a 1965 hearing, he described receiving twelve to fifteen blows at a time, while lying on the ground. The experience felt like “somebody pouring hot grease on you,” and the damaged tissue turned black and hard.[1] Resnik highlights the experiences of Talley and other prisoners to analyze the factors that limit (or should limit) what a democratic society can do to punish people in prison under the Eighth Amendment.

In the opening and closing chapters of her book, Resnik lays out what she calls the “anti-ruination principle” as a tool for cabining the state’s authority to inflict harm on prisoners. Resnik explains that this principle would prevent the “ruin” of people convicted of crimes as a “purpose or consequence of incarceration.” It would require the state to honor “the personhood of all individuals, including the incarcerated” and create positive obligations on the state “not to leave people in disabling conditions.”[2] Drawing on Jeremy Bentham, Resnik argues that preventing the ruination of prisoners might require elevating the needs of prisoners above those of other people: making prisoners “more eligible” for government assistance than other disadvantaged groups.[3] Because prisoners become dependent on the state as a function of their incarceration, the state’s decision to incarcerate creates an affirmative duty on the state to assist those it incarcerates.

Resnik’s invocation of the anti-ruination principle reminded me of a famous U.S. Supreme Court case in which the justices debated a similar concept under the Eighth Amendment. In Coker v. Georgia, decided in 1977, the justices considered whether the harm caused to a rape victim could be sufficiently traumatizing and permanent that it ruined a victim’s life.[4] If so, would the death penalty be a proportionate punishment for the magnitude of that crime?

Elnita Carver, the victim in the Coker case, was 16 years old when she was raped at knife point and abducted from her home. In overturning the capital sentence imposed on Ehrlich Coker, the man who raped her, the plurality held that the death penalty was grossly disproportionate and excessive punishment for the crime of rape under the Eighth Amendment. The plurality emphasized that the crime of rape was reprehensible for its “almost total contempt for the personal integrity and autonomy” of the victim. However, life is not over for the rape victim, even if that “life may not be nearly so happy as it was.”[5]

A dissent by Justices Burger and Rehnquist objected that the plurality was failing to understand the lasting and irrevocable harm (the ruination) caused by the crime of rape. It stressed that rape violated not only the victim’s privacy and personal integrity, but “inevitably causes serious psychological as well as physical harm in the process.” The impact on the victim’s life and health was impossible to quantify and likely “irreparable.”[6] The dissent emphasized: “Rape is not a mere physical attack it is destructive of the human personality.”[7]

The justices in Coker recognized that this debate over the harm of rape reflected their own admittedly subjective views. The plurality insisted that the justices had to bring their “own judgment” to bear on whether capital punishment could ever be proportionate for a rape.[8] The dissent faulted the plurality for substituting its own subjective analysis for the judgment of the Georgia legislature.[9]

The “ruination” debate among the justices in Coker made me wonder whether an anti-ruination principle could serve as a sufficiently objective check against the abuse of prisoners under the Eighth Amendment. I agree wholeheartedly with Resnik that lashing in prison (and elsewhere) violates the personhood of prisoners, but her gripping account is full of prison administrators and legislators who disagreed. After the hearing at which Talley testified, for example, the superintendent of the prison told the press: “Every one of those that were whipped know they needed it.”[10] Resnik also tells us that the governor of Arkansas had tried to abolish whipping ten years earlier, but “when the news reached the prison” the warden whipped twenty-seven men “to show he could.”[11]

Although the use of the lash seems shocking (even unthinkable) today, states did sanction whipping as a punishment for hundreds of years. As Resnik notes, Delaware did not get rid of its public whipping posts until 1970.[12] In 1963, the Delaware Supreme Court refused to find that whipping as the penalty for a crime violated either the state or the federal constitution.[13] It stressed that the first recorded practice of whipping as punishment in Delaware dated back to 1656, “under the Dutch.”[14] In recurring debates in Delaware over “whether to let the whipping post follow the pillory into oblivion,” the New York Times observed in 1935 that “the inhabitants of that State were rather inclined to accept the whipping post as a matter of course.”[15]

Whipping was a long-accepted punishment for domestic abusers. In a 1938 article, the New York Times provided a detailed description of Clyde Miller, a 37-year-old Maryland man, receiving twenty lashes at the whipping post for repeatedly beating his wife. The Times observed that no women were among the fifty witnesses to the event, including the man’s wife. “Mrs. Elizabeth Miller, 33, who had said she wanted to see her husband flogged, was not admitted.” She had testified against her husband with her eyes closed and “her lips, cheeks and nose cut and bleeding and her forehead discolored by bruises.” After the punishment was carried out, she told the press: “I’d like to give him a couple more.”[16] The warden emphasized that Clyde Miller, who was now lying face down in the jail hospital, had “suffered no permanent ill effects from his ordeal at the whipping post.”[17]

I thought of the perspectives of victims like Mrs. Miller—those who have been brutalized by the violent actions of others—in trying to grapple with the important problems raised by Resnik’s book. After detailing the long and winding path of the Talley whipping litigation, Resnik memorably asks: “The question haunting this book is why judges—and everyone else—have not done more to end the abysmal treatment of incarcerated people.”[18] The answers to that question must make room for widespread retributive attitudes to punishment. People who are hurt often understandably want to see their abusers suffer for what they have done.

These considerations of history and public opinion lead me back to the 1965 opinion of Chief Judge Henley, the federal district court judge in Winston Talley’s case. Judge Henley declined to hold that corporal punishment was per se unconstitutional, because “corporal punishment has not been viewed historically as a constitutionally forbidden cruel and unusual punishment.”[19] However, in order for whipping not to be excessive under the Eighth Amendment, it must be “inflicted as dispassionately as possible and by responsible people,” under “recognizable standards.”[20] Judge Henley enjoined the use of the strap against Talley and his fellow prisoners until adequate safeguards could be developed.

In a cruel twist, the rules that would later allow the resumption of whipping in Arkansas prisons became known as the “Talley Rules.”[21] Adopted in 1966, these rules specified that punishment could not exceed ten lashes in any case. They also limited whipping to a set of qualifying “major offenses,” defined at the time to include matters like insubordination, agitation, refusing to work when able, and homosexuality. Nobody was supposed to be whipped without at least two members of the prison administration signing off on the scale of the punishment.[22]

For me, the most enduring lesson of Impermissible Punishments comes from the Eighth Circuit’s repudiation of the Talley Rules—and more broadly its rejection of the idea that whipping in prison could be reliably “dispassionate” if only sufficiently regulated. In the Eighth Circuit case, decided in 1968, the Court noted the many instances in which Arkansas prison administrators had failed to abide by their own rules in the short period since their adoption. Because of this, the Court doubted any rules on whipping could prevent abuse, as “rules in this area seem often to go unobserved” and would be inadequate in any event in the “hands of the sadistic and the unscrupulous.”[23] For that reason, the Court found that the use of the strap for prison discipline constituted cruel and unusual punishment.

In the end, the clear record of the prison’s own failings provided an urgent and objective basis for outlawing whipping entirely. Prison officers had continued to whip prisoners on their bare skin, even though this was forbidden by the Talley Rules. They also had neglected to implement regulations that banned inmates from punishing other inmates. The Eighth Circuit found that a whipping regime that could not enforce its own rules had to be abandoned, rather than reformed—both for the sake of the incarcerated and those who incarcerate. The Court emphasized that the whipping culture in Arkansas prisons had degraded the humanity of both “the punisher and the punished alike.”[24]

The litigation that led to the historic Eighth Circuit opinion gives cause for both optimism and despair. As Resnik emphasizes, Talley’s handwritten petition achieved meaningful and lasting reform, contributing to a new understanding of prisoners as rights holders. In one of the most eye-opening details of her book, however, the prison warden gave Talley nine lashes the day after he testified, remarking that “perhaps it would teach” Talley “not to lie in court.”[25] Judge Henley, the trial judge who heard the petition, acknowledged that Talley and other prisoners had suffered violent reprisals on account of their recourse to the courts.[26]

Key questions remain about how best to make prison officials responsible for maintaining a culture of dignity and safety within prisons. Decades after the Eighth Circuit’s decision to end whipping in Arkansas, prisoners around the country remain subject to violent and cruel mistreatment. Investigative reports by the U.S. Department of Justice underscore the level of abuse that prisoners have continued to endure. A 2019 investigation of Alabama prisons, for example, found “severe, systemic” failures by the Alabama Department of Corrections to protect prisoners from horrifying levels of violence and sexual abuse.[27] A 2020 investigation of Lowell Correctional Institution in Florida found that officials did not protect female prisoners from staff sexual abuse, even after the officials were put on notice about what was happening.[28]

In Impermissible Punishments, Resnik shines a spotlight on the violence and abuse in our prisons and issues a clear moral call for action. Through the people we encounter in her book, she shows how the real-world experiences of prisoners must drive the agenda for change. I came away thinking that the tests established for judicial review of Eighth Amendment filings from prisoners should be fashioned around objective standards and clear prohibitions as much as possible.[29]
Fiona Doherty is the Nathan Baker Clinical Professor of Law at Yale Law School. You can reach her at fiona.doherty@yale.edu.

[1] Judith Resnik, Impermissible Punishments: How Prisons Became a Problem for Democracy 182 (University of Chicago Press 2025).
[2] Id. at 600.
[3] Id. at 600, 604-607.
[4] Coker v. Georgia, 433 U.S. 584 (1977).
[5] Id. at 597-98.
[6] Id. at 611-612 (Burger, J. dissenting).
[7] Id. at 612.
[8] Id. at 597.
[9] Id. at 613, 618-622 (Burger, J. dissenting).
[10] Impermissible Punishments, 182.
[11] Id. at 166.
[12] Id. at 187, 663, n. 42.
[13] State v. Cannon, 55 Del. 587, 190 A.2d 514 (1963).
[14] Id. at 589.
[15] Lawrence E. Davies, Delaware Debates Public Whippings: Clubwomen of the State Urge That Lashings Be Given in Private Hereafter, February 3, 1935.
[16] Wife Beater Lashed, Groans Under Whip: Baltimore Printer Removed to Prison Hospital with Welts on Back, Must Serve Six Months, New York Times, March 2, 1938.
[17] Id.
[18] Impermissible Punishments, 238.
[19] Talley v. Stephens, 247 F.Supp. 683, 689 (1965).
[20] Id.
[21] Impermissible Punishments, 183, 190.
[22] Jackson v. Bishop, 404 F.2d 571, 574 (8^th Cir. 1968) (summarizing rules and regulations adopted on January 10, 1966).
[23] Id. at 579.
[24] Id. at 580.
[25] Talley v. Stephens, 247 F.Supp. 683, 691 (1965).
[26] Id. at 683, 690.
[27] U.S. Department of Justice, Investigation of Alabama’s State Prisons for Men (April 2, 2019).
[28] U.S. Department of Justice, Investigation of the Lowell Correctional Institution - Florida Department of Corrections (Ocala, Florida) (December 22, 2020).
[29] See, e.g., Sharon Dolovich, The Coherence of Prison Law, Harv. L. R. Forum, 302, 308 (2022) (critiquing the “maliciously and sadistically for the very purpose of causing harm” standard in Whitley v. Albers; arguing that it sets an exacting and “almost totally subjective” defendant-friendly mens rea standard for evaluating the deliberate use of force against prisoners).

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