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 (8th 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).
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 (8th 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).