HAINES v. KERNER

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Argument of Stanley A. Bass

Chief Justice Warren E. Burger: 5025, Haines against Kerner.

Mr. Bass you may proceed whenever you are ready.

Mr. Stanley A. Bass: Mr. Chief Justice and may it please the Court.

This case is here on Certiorari to the United States Court of Appeals for the Seventh Circuit which affirmed the dismissal of a pro se action brought by an Illinois prisoner against prison officials and others under 42 U.S.C. Section 1983 seeking damages and other relief for injuries resulting from allegedly unconstitutional disciplinary treatment.

The District Court granted the respondent officials' motion to dismiss without allowing relief to amend or to amplify, without directing an answer from the defendants, without allowing discovery, without a point to counsel as some other person to assist the petitioner and without conducting any hearing.

The facts are basically as follows.

In 1968, Haines was then 66 years old, was an inmate of the Illinois State Penitentiary serving a life sentence imposed for burglary as habitual offender which was imposed in 1939.

Justice Harry A. Blackmun: Where was he, at State Ville or?

Mr. Stanley A. Bass: He was in Menard.

Justice Harry A. Blackmun: Menard.

Mr. Stanley A. Bass: At the time he had a foot disability for which he had been awarded compensation by the Illinois Industrial Commission.

On March 10 of 1968, Haines while on work detail was threatened by two younger inmates about 30 years old.

Statements were made by the other inmates to the effect that the young blood was taking over and that the old blood like Haines was dying.

Haines did not immediately react to these torrents, but obtained an inmate pass to go outside and inspect the pile of cinders.

When Haines reentered the shack, the two younger inmates resumed their arguments and their threats stating that Haines had better watch out or he would be hurt.

Again, Haines did not react.

After Haines entered the bathroom, these other inmates approached him in a threatening manner and resumed the argument.

One of the two men asked him if he wanted to start something, he thinks of Dorothy and Haines then hit Dorothy with a shovel. Subsequently, there was a scuffle with Mr. Moore and after that Mr. Haines was taken by one of the officials of the prison to the solitary confinement.

Sometime after that which is not clear from the complaint, Mr. Haines was taken by the defendant Rogers to the disciplinary officer.

Mr. Haines refused to explain his actions other then to acknowledge he had hit Dorothy with the shovel.

He was locked again in an isolation cell until the report that he had from the defendant Duncan.

Sometime after that, it is also not clear how long the period was, the report was submitted to the disciplinary committee.

At that time Haines was brought before them and objected to certain statements regarding his hitting the shovel on the floor.

Haines had indicated that he had dislodged some dirt from the shovel and the defendant Lance wanted to know why plaintiff would hit Dorothy and stated that it been 28 years since Mr. Haines had been in the hole.

When plaintiff refused to talk to these officers he was given 15 days punishment in solitary from March 10 to March 25, 1968.

Mr. Haines described somewhat the conditions of the solitary.

He said that it was a dark cell, that he had no bed or mattress, that he had to sleep on the floor on blankets, that he had received one regular meal during the afternoon and some bread in the morning and in the evening, that there were no personal articles of hygiene, specifically no soap or towel and that his false teeth became so rancid he had to take them out.

Following his day in solitary confinement, Mr. Haines was demoted to C grade which meant that he lost certain commissary privileges and other privileges which Haines said are not known to him.

Although in discovery Haines filed numerous requests for admissions and interrogatories where he sought to ascertain more information along that line.

The issues in the case are first whether or not the District Court prematurely dismissed the complaint.

Secondly, whether the totality of the circumstances of this particular solitary confinement as applied for this particular inmate unjustified on this record violated Haines' right to be free from cruel and unusual punishment.

Third, whether Haines was effectively precluded from making a defense or self-defense at the disciplinary proceeding and finally there is a question of whether or not Haines was penalized for exercising his right to remain silent until the existence of any immunity was fairly demonstrated to him.

The issues that are not involved in this case are a general attack upon solitary confinement per se under humane conditions and secondly whether or not the application of Goldberg versus Kelly type of procedures apply to all disciplinary proceedings.

We deal in this situation with the specific problem where a man is charged with a prosecutable offense where a self-incrimination question must be dealt with.

Justice Harry A. Blackmun: Mr. Bass I am just a little curious.

Does the record show what happened to Dorothy and Moore?

Mr. Stanley A. Bass: The record does not show what happened to Dorothy and Moore in terms of whether or not they were punished or prosecuted nor does the record show if Haines was ever prosecuted.

I believe he was not.

The principles applicable to this –

Justice Harry A. Blackmun: Do you know?

Mr. Stanley A. Bass: I do not know.

Well, I do know that he was not prosecuted from talking to Mr. Haines, but I do not know that the other two individuals.

But the principles applicable to the Eighth Amendment claim are well stated in Jackson versus Fischer in the opinion by Mr. Justice Blackmun then a Circuit Judge.

Justice Harry A. Blackmun: You said there has been no hearing in this case?

Mr. Stanley A. Bass: We said that there was a disciplinary hearing.

Justice Harry A. Blackmun: No, in the District Court was there hearing?

Mr. Stanley A. Bass: The District Court summarily dismiss under the motion of the defendants to dismiss.

So there is no evidence on which we can (Inaudible) –-

The only thing we have the allegations of the complaint which are taken us true for present purposes which must be liberally construed in accordance with pro se of willing rule.

Quoting from the Supreme Court pronouncements in Jackson versus Bishop, Mr. Justice Blackmun pointed out that the meaning of the Eighth Amendment is nothing less than the dignity of man that it is a flexible guarantee drawing meaning from evolving standards of decency that mark the progress of a maturing society, wanton infliction of pain and unnecessary cruelty are barred.

Significantly a statement is made there that brought an idealistic concept of dignity, civilized standards, humanity and decency are useful and usable and as we point out, the practices of other jurisdictions, standards of the American Correctional Association, the United Nations Minimum Standards and the views of experts show that these concepts are also practical and workable.

This Court has not hesitated to strike down state penal practices which contravene federal constitutional guarantees.

Younger versus Gilmore, Cruz versus Hope, Johnson versus Avery, Cooper versus Pate and Lee versus Washington, all involved the cases where state penal practices were held to be inconsistent with the Federal Constitution.

It appears that the respondents do fall back to the position that the action taken here was actually necessary to the maintenance of prison discipline and security.

But interestingly there is no evidence in this record to support that conclusion and that is another reason why the case needs to be remanded.

They suggest possible abuse of facilities by a person in solitary confinement as an abstract possibility, but nowhere as it is suggested, as the Second Circuit pointed out in Wright versus McMinn, that a determination had been made administratively that Haines was a person that would have abused those facilities.

Accordingly, the case must be remanded to ascertain whether or not such a determination had ever been made and it should be noted in this connection that there are alternatives to the type of punishment that was imposed upon Haines.

This would be entitled to some weight in determining whether or not the inflictions in this case were actually necessary for prison discipline.

As the President’s Crime Commission pointed out in 1967, one of the things that could be done in a situation involving misbehavior is that the inmate should be contacted by members of the staff concerned with this classification in counseling which can include chaplains, case workers and persons of that sort.

They should discuss with him the causes and consequences of his misbehavior trying to reach agreement on what the causes are and how they may be corrected.

So that instead of blandly imposing a subtle or not so subtle form of corporal punishment, they ought to try to get through to the man’s mind and find out why his attitudes are the way they are.

In this case, it is quite possible that would finally ascertain that Haines was reacting in self-defense and was not the aggressor.

And as we find from some of the returns to our questionnaire from some of the departments of corrections, many persons are saying we use solitary confinement only as a last resort when other alternatives are not availing.

Perhaps one approach that –-

Chief Justice Warren E. Burger: Would you clarify for me Mr. Bass, I am a little confused by something that you just said.

What happened when they undertook to make an inquiry into the incident of hitting the other prisoner over the head with shovel?

Mr. Stanley A. Bass: Well he refused to explain his actions.

I will get to that in a moment as to why he was affectively precluded from talking about self-defense at that point.

That is the second point involving due process.

With respect to the first point, perhaps the best approach would be for this Court to adopt the procedure utilized in the Eastern District of Arkansas with respect the whipping cases.

First case, Tally versus Stevens held that there must be procedural safeguards surrounding the infliction of corporal punishment in order to minimize abuse.

Interestingly, none are shown here.

That is we do not know whether or not they are Illinois regulations requiring a doctor to certify that a person is fit to take certain types of confinement.

There is no showing that there is administrative review of low racial armed personnel nor that any showing that Haines' physical condition was given any weight whatsoever in the determination that he should be subjected to this type of punishment.

Of course this is a determination for the prison officials not the Courts to make.

However, there is no showing that prison officials made such an informed showing on this record, and therefore, the case must be remanded.

As the Fourth Circuit pointed out in Brown versus Payton while the judgments of prison officials are entitled to considerable weight, prison officials are not judges and are not charged with responsibility of enforcing the constitution and they are not always disinterested persons.

We do not denigrate there views, but cannot be absolutely bound by them.

The second approach that might be taken would be to hold as in Jackson versus Bishop that there are such practices that so contravene civilized standards as to constitute cruel and unusual punishment per se.

For example, there is no showing at all that any legitimate interest is served by keeping people in dark cells.

Nor is there any showing that prisons could not be loaned the personal articles of hygiene which is then be returned back to the officials so that a person would not be able to make weapons or razor blades or things of that sort.

Nor is there any showing that it is impossible to construct the bed that cannot be taken apart by a prisoner.

Nor is there a showing that it is impossible to have medical visitation or to have exercise.

But we think that a remand should be held in this case in order to fully develop the record as to exactly what alternatives were available to the state and whether or not the inflictions in this case were actually necessary.

We are not seeking final judgment here, but only a chance to prove that Haines was in effect treated as rubbish.

The second claim which is the procedural due process claim is as follows.

Mr. Haines points out that no statement of reasons was ever given for the punishment and there is the chance that he may have been penalized for exercising his right to remain silent.

He was under dilemma of talking and possibly incriminating himself or not talking and thereby suffering punishment.

As we pointed out this was –-

Justice Potter Stewart: Mr. Bass, he was -- in fact that no reasons were given for the punishment really does not make this case very unusual?

In that sense the as a general rule in ordinary and criminal prosecution after a conviction, the sentencing judge quite often does not give reasons why you got one sentence rather than another, is that not true?

Mr. Stanley A. Bass: Well, I was leading for another point Mr. Justice Stewart.

Justice Potter Stewart: Not such a procedural due process claim?

Mr. Stanley A. Bass: To the extent to which the Federal Courts might defer to administer determinations which are based upon sound procedural basis then it may be that if it can be shown that there were statements of reasons that they are adequate procedures, the Federal Courts might then not undertake to review every single situation, but what we have as here a situation where no reasons were given without any explanations to whether or not that would have been impossible.

Actually many prison officials could give reasons for punishment.

Justice Potter Stewart: You mean give reasons why they impose ten days in solitary confinement rather than 12 or rather than eight?

Mr. Stanley A. Bass: I believe some --

Justice Potter Stewart: If so this makes it much different from the ordinary criminal process where no states, where juries set the punishment, no reason is ever given and/or ascertainable and in those state, those jurisdictions where the federal judge or where the judge in a federal system or in the state systems where the judge imposes the punishment, he quite typically does not give reasons why he imposes a sentence of two years rather two-and-a-half or three rather than one-and-a-half.

Mr. Stanley A. Bass: Well, the alternatives to no reason is that the Federal Courts will then have sufficient to the cases is to determine what the reasons were applied.

Justice Potter Stewart: Why?

Mr. Stanley A. Bass: In order to ascertain whether or not there was an impermissible basis of punishment.

If he was penalized for taking the Fifth Amendment, that would be negligible.

Justice Potter Stewart: In the whole -- in reviewing State Criminal convictions and Federal Criminal convictions.

This Court and most reviewing courts are entirely without power to look into the punishments so long as it is within permissible limits and generally no reason is given by the one who imposes the sentence?

Mr. Stanley A. Bass: Well, in the event that the Court does not require a statement of reasons be given that it would be necessary then in individual cases to ascertain exactly what the basis was.

If an inmate claims that the reason that he was punished was because he engaged in protected activities such as filing writs against the warden --

Justice Potter Stewart: You mean as to why he was punished at all?

Mr. Stanley A. Bass: Why he is punished at all or why he was punished to the extent to which he was punished?

Justice Potter Stewart: Well, that is the second part that I do not understand.

Mr. Stanley A. Bass: We would simply submit that it may be required by due process and perhaps more important, it will enable to Federal Courts to ascertain whether or not the case does present the constitutional infirmity raised by the prisoner, but in any of that we would suggest that the way that the dilemma that the inmate has can be resolved is suggested by the District of Columbia Circuit decision in Nelson versus Hart.

There, there was a man on Federal parole that was arrested for a new offense.

It was sort of continuance of the Federal parole revocation proceeding on the ground he might incriminate himself.

The Circuit Court said there was no need for a continuance because they would adopt an implicit use immunity rule saying anything that he said in the revocation proceeding would be ipso facto inadmissible in the criminal case.

Under those circumstances that removes the legitimate fear self-incrimination.

If it has been fairly demonstrated to the prisoner that he has no Fifth Amendment problem, he could then talk.

In this situation there is no showing that Haines do of any implicit use immunity nor that he was advised by this.

Now, the appointment of counsel might suffice or simple admonition by the administrative officials might suffice.

On this record we certainly cannot presume a waiver that he intentionally relinquished that right knowing that he had such a right and under the circumstances the case must be remanded for a determination.

In addition, while Haines raised a question as to whether or not his good time was properly taken away.

We think candidly that, that issue really is not relevant to this case for the following reason.

In Illinois life prisoners are entitled to be considered for parole at the end of 20 years minus good time.

But Haines did not need that good time because his 20 years were up in 1959.

Therefore, the only question related to his release is whether or not the parole board might have taken this disciplinary proceeding into consideration in denying him parole in 1968.

For the Court’s information, Mr. Haines in June of 1971 was paroled effective July 6, contingent upon acceptance by the Veteran’s Hospital if the detainer was not exercised against him.

Well, unfortunately the Veteran’s Hospital has not chosen to accept him and that is the problem that remains to be worked up, but he still has a damage claim in this case that must be resolved.

He does say that he suffered physical injuries and pain and suffering as result of being in that solitary cell and under the circumstances that he has a clear right under Section 1983 under Monroe versus Pape to come into this Court and seek relief.

If there are no further questions, I will save my remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Bass.

Mr. Smoot.

Argument of Warren K. Smoot

Mr. Warren K. Smoot: Mr. Chief Justice and members of the Court and may it please the Court.

In June of 1968, petitioner filed a pro se civil rights complaint in the District Court of the Northern District of Illinois Eastern District.

In addition to the facts that Mr. Bass has already laid out, I would like add the additional facts that were presented by the complaint.

Haines was 65 and he was working in the yarding.

There was a verbal disagreement between himself and other inmates and in response to this verbal disagreement, Haines struck another inmate over the head with a shovel, a dissent that was observed by another inmate by the name of Orlando, a prison official who was close at hand came to the incident.

He administered first aid to the inmate that was struck over the head with a shovel then called for the disciplinary lieutenant of the day.

There is a procedure at Menard Penitentiary to walk serious rule infractors to the Disciplinary Captain.

When Mr. Haines was walked to the Disciplinary Captain, he admitted the violation of a serious rule to penitentiary.

He admitted to the lieutenant that he struck another inmate over the head.

In response to this admission, Mr. Haines was placed in what Menard calls a holing cell.

Mr. Haines calls it isolation; we will accept that as true.

On the same day, an investigation took place.

On the same day March 10, 1968, Mr. Haines was given a hearing in front of two captains, one was lieutenant one was the captain who were not involved in original incident.

The investigation report of the guy who made the investigation was presented to Mr. Haines.

He was confronted with the investigation.

He had the opportunity to rebut the investigation or in the alternative to explain his actions.

He took advantage of that by making what he felt were minor changes in the investigation report.

In fact he said “Well, I did not bang the shovel on the yard room floor as investigation presents, but I will answer no further questions.”

Justice Potter Stewart: Were the prison regulations published and disseminated upon the prison population?

Mr. Warren K. Smoot: Yes sir, Your Honor.

It is a policy of the penitentiary to place the inmate guidebook in each cell and I think it is Rule 19 which prohibits fighting in the penitentiary and also gives the inmates notice that if fighting does occur, there will be quick and summary punishment, including potentially isolation and revocation of good time.

Justice Potter Stewart: Is that Rule 19 or is it the guidebook?

Mr. Warren K. Smoot: It is in the respondent’s brief, Your Honor.

I do not have the page at hand.

Justice Potter Stewart: Thank you.

Mr. Warren K. Smoot: After the hearing, giving Mr. Haines the chance –

Chief Justice Warren E. Burger: Does the regulation provide for the hearing?

Mr. Warren K. Smoot: I do not think it does, Your Honor, but it is the policy for the penitentiary to have a hearing for all serious rule infractions.

Minor rule infraction such as not standing in line for the count, taking food that is not authorized, often times the guard will dispose of this violation on the spot.

But any violations which the prison considers serious fighting, stealing, contraband they will have a hearing in front of an impartial Disciplinary Captain and in this situation, there were two.

Justice William J. Brennan: By impartial that is someone who was not connected with the particular incident?

Mr. Warren K. Smoot: That is true, Your Honor.

They are penitentiary staff though in that context.

Only after Haines was given a hearing in front of these two members who are not a part of the original confrontation was there a disposition.

The disposition resulted in placing Mr. Haines in 15 days in isolation.

He did have a toilet, He slept on the floor with three blankets.

He admitted having one meal a day plus bread and water in the morning and in the evening.

He alleged the absence of any personal hygiene articles, but he specifically noted no towel, no soap.

He also alleged his false teeth became rancid.

The first issue I would like to address myself to is whether the hearing or the procedure in which the penitentiary disciplined Mr. Haines complied with due process.

The majority of Federal Circuits who have examined this problem have concluded that as long as the punishment is not posed arbitrarily or capriciously, it comports with due process.

This Court has stated in several cases that the fundamental requisite of due process is a meaningful opportunity to be heard.

The meaningful opportunity to be heard is a relative concept depending on the capacities of those to be heard and the circumstances of the situation.

This Court has also noted that where a specific proceeding is required, the nature of that proceeding would depend on the nature of the alleged right involved, the nature of the proceeding and the possible burdens inflicted on the proceeding.

I think when we look at the facts as pleaded by Haines and by the way I viewed approximately 800 civil rights complaints while I had been working for the Attorney General and Mr. Haines was not only articulate pro se a litigant, but he had pled his facts well.

He was very specific.

There is no evidence that Mr. Haines is inarticulate, not intelligent or incapable of presenting his own complaint.

Haines admitted the rule violation.

He admitted to a guard.

There is no evidence of coercion that he hit, struck another inmate over the head.

He refused to answer any further.

After an investigation by the guard, being presented with this investigation, Mr. Haines had the opportunity to rebut the findings of facts in the investigation or explain his actions.

He failed to correct any of the report or to respond other than to make minor corrections in the report.

The disposition occurred only after investigation and a hearing.

Justice Thurgood Marshall: Mr. Smoot, what was he punished for, not answering the question or for hitting the man over the head?

Mr. Warren K. Smoot: There is no question that the record supports that he was punished for the rule infraction.

Justice Thurgood Marshall: Well, where is that in the record?

Mr. Warren K. Smoot: Well, I think it is a reasonable assumption to make it if an inmate strikes another inmate over the head with a shovel.

He admits to the guard and there is investigation and after they give him the opportunity to respond to that, they say, alright 15 days –-

Justice Thurgood Marshall: Was it possible that he was punished for not saying he did it?

Mr. Warren K. Smoot: Not in this situation.

No sir but even if –-

Justice Thurgood Marshall: Why is it an impossible?

Mr. Warren K. Smoot: Alright, it could be possible but it is not logical in this situation that he was punished for not -- he already admitted the rule violation, so he was not silent in this situation.

He admitted the rule violation even if he was silent, I think it should be permissible to punish an inmate for remaining silent.

Justice Thurgood Marshall: Oh, you do?

Mr. Warren K. Smoot: Yes sir.

The Fifth Amendment follows the individual and penitentiary.

No question about that but the Fifth Amendment should not permit an inmate to remain silent when he was asked solely and narrowly questions concerning discipline in the penitentiary because the inmates are probably one of the sole or often times the only sole information concerning what is going on in the penitentiary.

I do not think that the Fifth Amendment has right against self-incrimination should prohibit the penitentiaries for disciplining inmates for being silent.

It is not an issue here and we are not quite sure what the punishment would be for remaining silent, but obviously it is not logical assumption from the facts in this case that Mr. Haines was punished for remaining silent.

There is no issue here of confrontation and cross-examination.

The facts were not in dispute.

The question for the penitentiary officials was what would be the result of the situation.

There are no complicated fact situations.

The credibility of witnesses are not in issue here.

There is no biased evidence from the statement of the pleadings.

So since the facts were not in dispute and there is no evidence of faulty memory or bias, obviously cross-examination now requires it.

Mr. Haines did not ask for any witnesses.

He states in his complaint that Orlando was in the witnesses at the time of the hearing.

He did not ask for inmate Orlando to come in.

It is a policy of the penitentiary to permit inmates to call other witnesses, if they have this or in the alternative if the Disciplinary Captain feels it is the better practice, he will go out and have an investigation or write-up a report on the other witness, comeback and present it to the inmate who was subjected to the hearing.

The second issue concerns cruel and unusual punishment.

I think equally is important or maybe even more important are the facts that Haines does not allege, the following facts are not at issue here.

Haines did not allege that there was any absence of running water.

In fact, he had running water.

He said he had a toilet and the unit in the isolation cell of Menard only comes with a basin and toilet and not separable.

So he had a wash basin with running water and a toilet.

He never alleged the absence of running water.

Justice Potter Stewart: With the same -- same utensil?

Mr. Warren K. Smoot: Same unit Your Honor.

Yes sir.

Justice Potter Stewart: It was a toilet and a wash basin?

Mr. Warren K. Smoot: Yes, there is one unit there installed.

They were installed in 1968 prior to his incarceration.

Mr. Haines does not allege the absence of any shower or shave.

In fact, it is the policy of Menard penitentiary to give inmates a shower once a week and a shave while in isolation.

He never alleged he did not have a shower.

Justice Potter Stewart: Well then you say that is a policy, you are just telling us that?

Mr. Warren K. Smoot: That is right Your Honor.

Unknown Speaker: As we are hearing, I take it that is a sort of thing that would have been developed at the hearing then?

Mr. Warren K. Smoot: In response to that Your Honor may I say, I think the logical implication for requiring a hearing is that you are assuming that penitentiary has done something wrong and you are making them prove off that they did not do anything wrong.

I think the proper posture –-

Unknown Speaker: Well, you can stay where that was --

Mr. Warren K. Smoot: Okay, if I may complete.

Unknown Speaker: Yes.

Mr. Warren K. Smoot: I think the proper posture here is when you have a complaint, even if it is pro se, the rule says that a liberal construction must give the inmate liberal construction, but this does not mean that you plead facts for the individual that may or may not state a cause of action.

You rule, you give the appropriate remedy.

That is how liberal construction says, that the federal Courts should provide the inmate a remedy.

Notwithstanding if he says habeas corpus and if it is really civil rights or vice versa, the Federal Court should apply the plurality there, but not plead facts for the individual and Mr. Haines was very specific throughout his complaint concerning the allegation.

He mentioned the individual's names and the dates.

I thought I think it is logical to assume that if he did not have running water or did not have showers or he did not have adequate heat or ventilation, he would have brought these out in this complaint and I think it is improper for the Federal Court to assume the absence of these, hold a hearing and then require the state to prove that he had.

I think it is fair to both parties and you are not doing an injustice to a liberal construction to require, the Federal Courts, to merely rule in the facts as pleaded and I think what is logical here is to show the facts they were not pleaded.

They are balanced of against the facts that were in concluding whether under the total circumstances the incarceration of Haines was cruel and unusual punishment.

There was no inadequate heat or ventilation in this case.

There was no inadequate medical attention.

He alleges no permanent physical discomfort.

He says he had circulation problems at that time.

Absence, his specific allegation that he had no towel or soap, he alleges no unsanitary conditions.

So you have a situation in which you have 15 days, that is the maximum time an individual can spend in isolation at Menard Penitentiary, in every penitentiary in Illinois.

He had toilet, he had a running water.

Justice Potter Stewart: That is the maximum consecutive number of days?

Mr. Warren K. Smoot: That is right.

Justice Potter Stewart: And then after 24 hours or so can he spend another, can he be put in there for another 15 days?

Mr. Warren K. Smoot: Yes, I suppose technically, but it is not the procedure.

If he goes out and would strike another inmate over the head with a shovel or attack him, yes I think technically he could be placed back in.

Justice Potter Stewart: (Inaudible) he could spend 30 or 31 days or 60 days or 62 days or 240 or 244 days in isolation, is that right?

Mr. Warren K. Smoot: Technically yes, Your Honor, but it is not the policy.

Justice Potter Stewart: Well it does not happen very often I suppose (Voice Overlap) why is not imposed.

Mr. Warren K. Smoot: That is right.

That the policy has not to do that for technically but they could.

Yes, I guess as the rules are interpreted right now.

Justice William J. Brennan: May I ask Mr. Smoot, if this volume of photographs, is that the state’s appendix?

Mr. Warren K. Smoot: Yes, it is Your Honor, the respondents.

Justice William J. Brennan: And it was in evidence, was it below?

Mr. Warren K. Smoot: No, it was not.

It was not in evidence below, but I think it is a legitimate response for the respondents to show the Courts what other jurisdictions are doing.

Justice William J. Brennan: Well I gather, you can prove it, have you not a photograph of the isolation cell at Menard?

Mr. Warren K. Smoot: Yes sir.

It is the last Section.

Justice William J. Brennan: This is it?

Mr. Warren K. Smoot: Yes sir.

Justice William J. Brennan: I know as this one, this I gather is the toilet and the wash basin that you were talking?

Mr. Warren K. Smoot: That is right.

Justice William J. Brennan: But there is a mattress in front of this?

Mr. Warren K. Smoot: Yes, that came approximately six months after Haines was in there.

They have mattresses now.

Justice William J. Brennan: But this does not show what the cell was like when Haines was --

Mr. Warren K. Smoot: If you remove the mattress that is what the cell was like.

I had a basis of the facts as presented.

There are clearly two issues under the Eighth Amendment.

Was it merely disproportionate and/or was the implementation unnecessary and painful?

This Court has looked at four factors in determining whether punishment is cruel and unusual.

If you look at the history of similar or the same punishment, it compared what other jurisdictions are doing in the similar situations.

If look at the case law and finally they have contemporary standards of decency under all four tests, the present punishment was not cruel and unusual.

There is no question that in the 1780s when the Eighth Amendment – when the Eighth Amendment was enacted, the use of isolation, silence and hard labor was the quakers (ph) humane alternative to the former sanguinary punishments.

The law in that state prison initially started using isolation one-twentieth to one-half of the confinement of individuals that were sentenced to death.

Now subsequently, the different penitentiaries through out the country in the early 1780s, found that prolonged use of isolation was detrimental to the health of the individual so they discontinued the continued use of isolation, but up to 1840 and both the Auburn Penitentiary Systems and Pennsylvania Penitentiary Systems which was the two main penitentiary systems in the 1830s and 40s, isolation was continued in use for part of the sentence for serious violators of the criminal law and also for the punishment.

In fact, John Howard who was the father of all penological reform in the early 1770s suggested the use of isolation for serious rule infractions.

There is not question that historically the framers of the Eighth Amendment did not intend that this type of punishment should be circumscribed by the cruel and unusual clause.

The Court might take judicial notice of many of the Federal Court's opinions.

Isolation is the common measure for discipline in penitentiaries throughout the country.

Now, the Court should be careful because not all jurisdictions use the term solitary or isolation.

They may have a different term, but the effect is the same.

Whether you call it administrative segregation or you call it corrective measures or a holding cell, the removal –-

Unknown Speaker: Or the hole?

Mr. Warren K. Smoot: Or the hole, yes, but I think the use of the term the hole is such a derogatory that it kind of begs the question in this type of situation.

For every jurisdiction to my knowledge uses some form of isolation in punishing individuals.

The case laws, there is a multitude of cases which the respondent has noted these in the notes and there are sufficiently in our brief, and I am not going to mention them here but there are common denominators of the Federal Courts that could have come up with in determining whether confinement is cruel and unusual punishment.

The common analogy involves prolonged use.

There is no evidence here that there is prolonged use.

Overcrowding, Haines was in the cell by himself.

Unjustified beatings, no allegation that he was physically confronted in any manner.

Inadequate food or water, there is no evidence here.

I will address myself to – how he was given adequate food and water under the contemporary standards.

There is no allegation of adequate heat or ventilation.

There is no allegation of inadequate medical treatment.

He makes no claim here.

Justice Potter Stewart: Have been inadequate?

Mr. Warren K. Smoot: Inadequate, Yes Your Honor.

Justice Potter Stewart: I suppose you mean that?

Mr. Warren K. Smoot: That is right and there was no allegation of inadequate medical treatment.

Justice Potter Stewart: Or of inadequate heat or ventilation?

Mr. Warren K. Smoot: That is right ,Your Honor.

I apologize if I said the opposite.

He makes no allegation that it was unclean.

In fact, we keep these cells very clean and the fourth and the eighth common denominator, was excessive confinement in light of the conditions that were involved.

None of these are evident.

The final factor and I think this is particularly relevant here if we apply contemporary standards of decency or rather they care, but I think we can place it into more specific context.

If we look at the American Association, the American Correctional Association, recent 1966, Menard Penitentiaries follow this as a penological guide.

They have noted the custom -- custody, discipline and security are the primary functions of the penitentiary and only if you have proper control of the inmates can you have an effective rehabilitative system.

American Correctional Association notes that isolation is acceptable form of discipline and they circumscribe it by the following limitations.

No more than 15 days at a time. You should a toilet and a wash basin, but they observe that not all isolations cells need a toilet and wash basin because it is been their experience that certain inmates for causes unknown or causes known would go in and break things up.

They will tear up toilets, they will stuff towels down the toilet seat, there will be an overflow, and they will burn the mattresses.

There may be on restricted diet of an individual here who has access to limited space.

As to the claim not completely dark, they observe –- well they acknowledge it shall not be wholly dark, well-heated and ventilated.

If we take a look at a situation we will observe that the prison really had no viable alternative than to use isolation and I think the Court should keep in mind that when you are comparing whether this isolation or the hole, whatever terminology you use is cruel and unusual.

It is not logical to compare the confinement to your bedroom or living room at home.

It should be a relative comparison.

These individuals are in the penitentiary.

By definition punishment must be somewhat derogatory.

So, if you place an individual in isolation and it has to be a little more severe than the normal coming and going that he has in the prison cells or it is not effective.

Justice Harry A. Blackmun: Do you have any comment about false teeth allegation?

Mr. Warren K. Smoot: Yes, I have Your Honor.

If it is true, we have to accept this true his false teeth became rancid, but it is due to his own shortcomings.

He had running water and he had false teeth.

He can remove him from his mouth and I do not find that particularly inhumane to require a man to remove his false teeth from his mouth and wash it underneath the running water.

Concerning the towel and soap, he had showers.

At least it is not an issue whether he did have a shower and a shower once a week and a shave that means he had two showers and two shaves, does not make the absence of a towel soap cruel and unusual punishment in my estimation, especially I think the test here is reasonable.

The penitentiary has 1200 inmates in there and I think it is reasonable for the penitentiary to set up a situation which will meet the average individual.

Haines hit another inmate over the head of shovel.

There was some evidence of violence.

He was healthy.

He was working on the yard gang with pick and shovel.

At the hearing, the Disciplinary Captain had the opportunity to observe his physical demeanor.

So when they placed the inmate in there without towel and soap, I think it is reasonable to conclude that they could be used as a garret.

They could place the soap in a towel.

That is a very effective blackjack.

So when you compare the interest of the penitentiary to prevent their guards from serious attack and at the same time determining whether or not he was subjected to inhumane punishment, I think the opportunity that he has a shower does not convert the mere absence of towel and soap a cruel and unusual punishment especially when he was provided with adequate food.

The American Correctional Association says 2500 calories a day.

He had a regular noon meal and bread and water in the morning.

That composition could easily total 2500 calories a day.

Justice Thurgood Marshall: Did it?

Mr. Warren K. Smoot: We do not know.

It could easily have done so.

He did not allege that it was inadequate.

He had a regular noon meal.

Justice Thurgood Marshall: Now why cannot (Inaudible) three meals?

Mr. Warren K. Smoot: You mean the people that are released?

Justice Thurgood Marshall: No, the other prisoners.

Mr. Warren K. Smoot: All people in isolation at that time received one regular noon meal then bread and water.

Justice Thurgood Marshall: And how about the other 1200, they got three meals?

What are they doing, wasting taxpayer’s money?

Mr. Warren K. Smoot: [Laughter]No, but to make isolation effective, you got to have it severe.

Justice Thurgood Marshall: So it is the minimum?

Mr. Warren K. Smoot: Pardon me?

Justice Thurgood Marshall: He got a minimum of food, you admit that?

Mr. Warren K. Smoot: I am not sure it is a minimum.

If you could have 2500 calories in a noon meal that is a lot of starch at the penitentiary but he had the minimum meal.

I can admit that and still with clear conscience to say it was not cruel and unusual punishment.

You have got to have it entirely severe to have it punishment.

If you do not have it severe, you might as well not punish the individual and we are going back to the position of what viable alternatives that the prisons have.

They have 1200 inmates who are looking at this situation.

Punishment has got to be swift and severe.

It is got to be certain and it is got to be a consistency there.

Can you imagine the trouble with the penitentiaries individual are faced at saying, alright, you hit him along the head with a shovel but we will give you a pass.

Now, the next guy comes along he got just a little different situation.

Now, he wants a pass after he struck another inmate over the head.

There is no evidence that you are contrary to presume that Mr. Haines was not able, he will hit the shovel pretty well.

Justice Potter Stewart: May pass, what does that mean?

Mr. Warren K. Smoot: Alright, by passing, we may not commit him to isolation. Haines (Voice Overlap) was on a license.

Justice Potter Stewart: Pass means, we will overlook this?

Is that what you mean?

Mr. Warren K. Smoot: Yes, he had a license.

He could not have good time revoked.

It was impossible.

He could not earn good time.

You cannot take good time away from a death and life sentence.

So the only thing they could have done is three things.

One, do not punish him at all, give him a pass.

Two, put him in isolation.

Three, do something minor like take away his earphones or not to let him attend the theater for that Saturday or for three weeks coming.

I think in the context of penitentiary, the other two are not reasonable.

Justice Thurgood Marshall: Is it not true that he was eligible for parole in 20 years?

Mr. Warren K. Smoot: That is right but he already had been up to that Your Honor.

So he could not –-

Justice Thurgood Marshall: Why would it not -- when he is up for parole is his prison record considered by the Parole Board in Illinois?

Mr. Warren K. Smoot: Yes, it is.

But I think that goes to due process as a point to the cruel unusual punishment point.

Justice Thurgood Marshall: By the point you raised, that is where I was wondering why you raised it?

Mr. Warren K. Smoot: No, I am saying –-

Justice Thurgood Marshall: That does not –- it does just not strike me as being any help to you?

Mr. Warren K. Smoot: Well, it was not a problem.

The point I am trying to make, they had no viable alternative even though it may affect his parole.

At that time, they had only three alternatives.

No punishment, minor withdrawal rights, or isolation.

So I think it is logical to say isolation.

Now, the question for this Court to answer, was the implementation of isolation reasonable?

I think when you compare the requirements of discipline, the requirements of the penitentiary for custody and security, when you bounce at against fairness to the individual, I believe the answer is that this was not cruel and unusual punishment even though you personally may disagree what had happened.

I do not believe, only the Courts have not so founded that that is a test.

Most recent penological advancements are not the test in this situation.

The fact that there was other alternative does not make this cruel and unusual because within an area the prison should have discretion to apply what they feel is appropriate in the situation.

I think in summary and conclusion, I submit that since petitioner was disciplined in a fair manner, no question about that and he received punishment that was only a workable humane alternative available to the prison authorities under circumstances, this Court should affirm the dismissal of petitioner’s complaint.

Chief Justice Warren E. Burger: Thank you Mr. Smoot.

Mr. Bass, do you have anything further?

Rebuttal of Stanley A. Bass

Mr. Stanley A. Bass: Yes, Mr. Chief Justice.

The respondents are not asking this Court to act as a Trial Court by bringing in exhibits or by making certain statements about policies.

Our position is that the case should be remanded so that a full record could be made in the Trial Court.

Secondly, it is our position that the state does not have a right to jeopardize inmate's health without showing necessity, without showing some reliable procedural safeguards.

It is not irrelevant to know the effect upon any potential rehabilitation as the point that Jackson versus Fischer pointed out when a inmate perceives cruel and unusual punishment, it makes it much more difficult to socialize it.

Our the final remark is that with respect to such questions to shave and shower, Haines did allege “there was no articles of hygiene” furnished to him and it would seem to me under a liberal construction that one might then put the burden on the state to come forward and say exactly what you did supply him and under the circumstances we feel that the record must be developed more fully and that the case should be remanded to the District Court, thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bass.

Mr. Bass you acted at the request of the Courts and by the appointment to the Courts and we wish to thank you for you assistance to us and to the client you represented.

Mr. Stanley A. Bass: Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.