INGRAHAM v. WRIGHT
Legal provision: Amendment 8: Cruel and Unusual Punishment
Argument of Bruce S. Rogow
Chief Justice Warren E. Burger: We will hear arguments next in 6527 Ingraham against Wright.
Mr. Rogow you may proceed whenever you are ready.
Mr. Bruce S. Rogow: Mr. Chief justice and may it please the court.
There are three issues in this case; the first issue is whether or not the Eighth Amendment is cruel on unusual punishment clause, has any application to public school students who are beaten by their teachers or principals.
The United States Court of Appeals for the Fifth Circuit held an affect that no matter how brutal how severe, how excessive the beating is inflicted upon public schools students, they may seek no relief under the Eighth Amendment that is the first issue.
The second issue is if the Eighth Amendment does apply as we submit it does.
Whether or not the facts of this case show that these student’s Eighth Amendment’s right have been violated, The third issue which is separate and distinct, is whether or not any corporal punishment inflicted by an instrument designed to cause bodily injury, whether or not that punishment must be proceeded by some opportunity to be heard under the 14th Amendment’s Due Process Clause.
The Court of Appeal’s decision was that there was no need for such a hearing.
Justice William H. Rehnquist: Mr. Rogow you are going to discuss those point by point.
Mr. Bruce S. Rogow: Yes sir, I will Mr. Justice Rehnquist.
In fact I turned out to the Eighth Amendment argument.
The effect of the Court of Appeals decision as I mentioned is to give carte blanche to teachers and principals to punish corporally as severely as excessively as they may do and there will be no recourse under the Eighth Amendment.
The decision seems to focus on the issue of whether or not the punishment is imposed in a criminal setting or a civil setting and the Court of Appeals held that the Eighth Amendment only applies in the criminal context.
We believe that decision misses the point of the Eighth Amendment.
The focus of the Eighth Amendment is upon punishment, it is not upon who delivers the punishment.
The original purpose of…
Chief Justice Warren E. Burger: You said has no focus on who delivers it.
If a stranger walks up to you on the streets and hits you over the head with the club that’s probably is some punishment, now does the Eighth Amendment apply there?
Mr. Bruce S. Rogow: No it does not Mr. Chief Justice because…
Chief Justice Warren E. Burger: We are talking about the authority of government in somewhere.
Mr. Bruce S. Rogow: Exactly punishment imposed under color of State Law which are the facts of this case and which is the kind of punishment we are talking about here.
The original purpose of the Eighth Amendment was to preclude the barbaric kinds of punishments which were known in the 15th, 16th, 17th, 18th centuries in England and on the continent.
To be sure the drafters look back, looked at history and saw terrible punishments imposed in a criminal context generally and that is what they sought to ban in the Eighth Amendment because that is what they saw in the past, but that does not mean that there was to be no ban on punishments imposed by other people acting under color of State Law if those punishments were excessive and severe.
Justice William H. Rehnquist: Mr. Rogow you were here this morning, weren't you doing the argument of the fight in the Columbus bar case.
Mr. Bruce S. Rogow: Yes I was Mr. Justice.
Justice William H. Rehnquist: You have heard some of the questioning there supposing the policemen in that case had simply pistol-whipped with one of the plaintiffs there, would you say that could be a cruel and unusual punishment.
Mr. Bruce S. Rogow: If he had done it as a summary punishment in arresting the person, take him into custody and then similarly punishing him depriving him of the right to be trailed then I could say that would be a violation of due process right but not cruel and unusual punishment.
Justice William H. Rehnquist: Why would you say, it wasn’t a cruel and unusual punishment?
Mr. Bruce S. Rogow: I would say it wasn’t the cruel unusual punishment because, it’s a difficult question Mr. Justice Rehnquist probably because if he is not been addressed in that context, generally there was another clear constitutional right that has been violated but as I reflect on it, I think that could begin to give rise to a cruel unusual punishment, the only withdrawing I might do from that position might be that, that kind of punishment is not authorized at all by law, with the kind of punishment we are talking about here is at the outset authorized by law and then it’s exceeded.
Justice Thurgood Marshall: Mr. Rogow you admit that during the time of adoption of Eighth Amendment corporal punishment was the order of the day.
Mr. Bruce S. Rogow: Yes it was in a limited context reasonable corporal punishment.
Justice Thurgood Marshall: He made it a criminal by whipping with the stick.
Mr. Bruce S. Rogow: They did and this court has recognized all that the Eighth Amendment is a dynamic evolving concept and what may have been tolerated at the time of the adoption of the Eighth Amendment hasn’t been tolerated as we progressed in our society standards of decency and civilized notions.
Justice Thurgood Marshall: You take position that all corporal punishments and violations?
Mr. Bruce S. Rogow: No we do not Mr. Justice Marshall.
Justice Thurgood Marshall: Then why are you arguing in this case?
Mr. Bruce S. Rogow: We are only arguing this case and we are saying that reasonable corporal punishment will not be a violation of the Eighth Amendment.
We are saying that physical corporal punishment imposed by an instrument will have to be proceeded by an opportunity for hearing that is our Fourteenth Amendment argument which is separate and distinct from this, but we are not seeking to outlaw all corporal punishment in a public school context Mr. Justice Marshall.
Justice William H. Rehnquist: What would be the issue of the hearing?
Mr. Bruce S. Rogow: The issue would be at that hearing whether or not the student did in fact commit the offence for which she has been punished.
Justice William H. Rehnquist: And also even if he did, whether or not corporal punishment…
Mr. Bruce S. Rogow: Certainly the kind of punishment that ought to be inflicted.
Justice William H. Rehnquist: What constitutional interest under your Fourteenth Amendment argument is the student deprived without due process of law if such a hearing is not held?
Mr. Bruce S. Rogow: He is deprived of the liberty interest Mr. Justice Rehnquist.
A liberty interest that is drawn really from nearly all the Amendments of the constitution.
Justice William H. Rehnquist: All 26?
Mr. Bruce S. Rogow: No I’m sorry at least the first ten, Mr. Justice Rehnquist.
The liberty interest, the right to be treated with human dignity is at least in interest and liberty.
Justice William H. Rehnquist: Where is the right to be treated with human dignity where is that stated in the constitution?
Mr. Bruce S. Rogow: It is not specifically stated –
Justice William H. Rehnquist: It's among the per-numbers.
Mr. Bruce S. Rogow: Among the per-numbers and included among the per-numbers are -- and let me list those rights that have been violated, that we think make up the constellation of factors involving liberty.
The right to be free from bodily restraint and a student is restraint, the right to be free from…
Justice William H. Rehnquist: What source is, rename the Amendment which is the source.
Mr. Bruce S. Rogow: I can't name specific Amendments I can come to the Fourth Amendment perhaps with the physical kind of intrusion that’s involved but this court is never required a specific Amendment to be named when one is talking about liberty because the concept of liberty is broad and it includes an awful lot of privileges that are essential to the practice of the liberty by free people and free children.
Justice Thurgood Marshall: Would any one person thinks of it?
Mr. Bruce S. Rogow: No it is not Mr. Justice Marshall.
Justice Thurgood Marshall: Would any five think of it?
Mr. Bruce S. Rogow: It maybe…
Justice Thurgood Marshall: Is that what you think liberty is?
Mr. Bruce S. Rogow: No I think liberty is something that…
Justice Thurgood Marshall: You don’t have to pinpoint?
Mr. Bruce S. Rogow: I think we do have to pinpoint it, and I’m attempting to pinpoint it by looking at a host of factors which this court has looked at many times in deciding whether or not there is or is not a liberty interest, the freedom from bodily restraint, from bodily intrusion, by officers acting under color of State Law beatings in affect, the freedom from being stigmatized ridiculed, psychologically harmed, having one’s privacy invaded, having one’s reputation, honor and integrity invaded.
When the government does that acting under the color of state law we submit that those things constitute of deprivation of liberty, but that Mr. Justice Marshall is my due process argument and I would like to give back to my Eighth Amendment argument and then address these due process issues once again.
The court is recognized in the Eighth Amendment concept because we think this is important that a principle to be vital must be capable of wider application and the mischief which gave it birth.
The court said that in Weems versus United States where it held unconstitutional as an Eighth Amendment violation.
12 years of hard labor for fraudulently signing a public document and in Robinson versus California the court held that imprisonment for drug addiction could amount to cruel and unusual punishment.
So the court has recognized that the Eighth Amendment is a dynamic evolving concept and that it focuses upon punishment and that’s what we have in this case, we have excessive punishment that the Fifth Circuit would tolerate and say the Eighth Amendment offers no relief from it.
Justice Thurgood Marshall: Can the Eighth Amendment go backwards as well as forwards, if something is a cruel unusual punishment ten years ago, if evidence shows that there is a great deal of need for it and the need cannot be met in another ways could have done something become not cruel and unusual?
Mr. Bruce S. Rogow: There certainly could be changing and evolving standards of what would be tolerated by society.
So, there could be some change because as I said the Fifth Circuit is flexible and dynamic -- I’m sorry the Eighth Amendment is flexible and dynamic.
The Fifth Circuit was not so flexible in this court, this case.
Because we think the Eighth Amendment applies, we turn to the facts of this case, which we think shows a violation of the Eighth Amendment and these are the facts.
At least four of the people who testified, four of the children these are 13, 14, 15 year old children had to receive medical treatment.
One of them James Ingraham suffered a severe hematoma he was unable to sit down for three weeks, another Roosevelt Andrews loss the use of his hand and had to seek medical attention, another one had a lump on his forehead from the paddle which had to be lanced surgically treated and left a scar, another Daniel Lee.
Justice William H. Rehnquist: As I understand the testimony of these boys are all un-contradicted.
Mr. Bruce S. Rogow: Yes it was.
Justice William H. Rehnquist: There is a record to explain why did the people who administered the discipline did not testify.
Mr. Bruce S. Rogow: Because there was a 41-B dismal under the Federal Rules of Civil Procedure in effect of motion for directed verdict at the end of the plaintiff’s case was granted.
Justice William H. Rehnquist: I see.
Mr. Bruce S. Rogow: So the case is resolved with that point in the district court.
Daniel Lee fractured his hand and had a dislocated knuckle, which the district court looked at in the record saw that there was scar even still left from that.
People missed school, some of the descriptions that are involved in this record are unique we think in the annals of punishment in the educational setting.
Children hollering, crying, praying, screaming and yet still being punished and one Rodney William said that he was begging for mercy as he was hit with the paddle and then he was hit with the belt and then his words and tears was coming out of me.
They were repeated blows 50 blows to one student for allegedly making a obscene telephone call.
Justice William H. Rehnquist: Granted all this professor, does the Eighth Amendment still apply?
Mr. Bruce S. Rogow: It applies.
Justice William H. Rehnquist: Another three parts of the Eighth Amendment are there, accessing bail and fines both of which are in the criminal context.
Mr. Bruce S. Rogow: Yes they are.
Justice William H. Rehnquist: You are stating in that cruel and unusual punishment necessarily goes beyond the criminal context.
Mr. Bruce S. Rogow: Because the focus is upon punishment and merely as I said before Mr. Justice.
Justice William H. Rehnquist: Do you think the founders felt that when they formulated the Eighth Amendment?
Mr. Bruce S. Rogow: It’s hard for me to state what exactly the founders felt but I believe that they must have thought that punishment imposed by the government cannot be so severe and so excessive that it would amount to the kind of violations of human dignity which they saw occurring in the near past, in England and along the continent.
Justice William H. Rehnquist: Is there a concept of custody that offends your definition of punishment under the Eighth Amendment as must the person inflicting the punishment presumably on behalf of the government have the person is some sort of custody where in affect he can't get away.
Mr. Bruce S. Rogow: Not, it is not necessary to my analysis of the Eighth Amendment but there is in some limited way that custody concept even here in a public school setting.
Justice William H. Rehnquist: But surely it is not necessary to your analysis.
Mr. Bruce S. Rogow: No, I don’t tie it to custody.
Justice William H. Rehnquist: What if one superior in the local government office simply pistol-whipped so they would be cruel and unusual if performed by a jailor on an inmate, would that be a cruel unusual punishment?
Mr. Bruce S. Rogow: If it were done for the purpose of punishment, perhaps it could reach to the level of Eighth Amendment violation.
Justice William H. Rehnquist: In one of our conferences, one of those hit the other in the nose.
Mr. Bruce S. Rogow: I don’t think that kind of force does not rise to the excessive punishment that we are talking about.
Justice William H. Rehnquist: Agents of the federal government run federal business.
Mr. Bruce S. Rogow: But you were not punishing someone, under authority given to you by Federal Law or by State Law in this case.
Justice William H. Rehnquist: The authority is to conform sometimes the conference is going to get quite heated.
Justice Potter Stewart: And it is also to try to get this decree.
Mr. Bruce S. Rogow: The authority maybe to be conform Mr. Justice Stuart but the authority is not to punish and in the case that we are talking about the authority to the school master heads is to punish, when he exceeds that authority, then in such a severe and excessive way than one gets over in to an Eighth Amendment violation.
Justice Thurgood Marshall: Professor what did you do about the local (Inaudible), is it gone?
Mr. Bruce S. Rogow: No it is not gone.
There are several things that I do with that Mr. Justice Marshall.
The first is to explain it in its historical concept.
First of all it was the product of a voluntary school or educational system, were parents could choose to send their children, or not send their children to school.
That is not the situation today, children must be sent to school and to some extent that ties in with the custody notion that is involved here.
Secondly, if parents have some way at least to say I withdraw my this assumed delegation to a teacher then perhaps one could say well there may not need to be a hearing before the punishment is imposed because the parent has already given their authority to do it, but there cannot be that withdrawal the way the law stands today.
So, a parent is committed to sending his children to school, he has no say or she has no say, about what kind of punishment is inflicted in that school and we submit at the local parent’s argument does not permit because there has been assumed delegation excessive beatings and it doesn’t permit of beating without an opportunity for a hearing.
Chief Justice Warren E. Burger: Are you analogizing this to a military service under the draft for example and would you say there that a person in a military service who was required for some disciplinary reason to stand up for 48 hours or some such thing would be within the reach of Eighth Amendment.
Mr. Bruce S. Rogow: That person could be, if the punishment was excessive.
Chief Justice Warren E. Burger: Make it to 96 hours and certainly that could be excessive would it not?
Mr. Bruce S. Rogow: As I say it depends upon the facts of the case, it would seem to me that the 96 hours of standing would be excessive punishment and it is punishment.
Chief Justice Warren E. Burger: And if that were ordered by a superior officer in the circumstances where you have to comply then you say that the Eighth Amendment would be invoked.
Mr. Bruce S. Rogow: It could be invoked, yes Mr. Chief Justice.
Justice William H. Rehnquist: Mr. Rogow you ask for damages and your complaint, this is the forwarded case isn’t it?
Mr. Bruce S. Rogow: Yes it is.
Justice William H. Rehnquist: Is there any possibility; are there other Tort remedies under Florida Law for this kind of thing?
Mr. Bruce S. Rogow: Yes there are.
The due process right to be heard, which we argue is not titled at all to the Eighth Amendment argument.
We are not saying one can justify severe and excessive beatings by giving a hearing before one administers those kinds of beatings.
What we are saying is when one is beaten with an instrument designed to cause bodily injury, that beating infringes upon the liberty rights.So liberty rights…
Justice William H. Rehnquist: Do you mean to slap?
Mr. Bruce S. Rogow: No I do not mean to slap Mr. Justice.
Justice William H. Rehnquist: I guess a slap will not be an instrument, which will invoke the procedural atrocity.
Mr. Bruce S. Rogow: No it would not, it is…
Justice William H. Rehnquist: Or a karate chop would not be?
Mr. Bruce S. Rogow: If the karate, I see situations in which the hands can be used as instruments to do as much danger as a paddle.
Chief Justice Warren E. Burger: The distinction between injury and pain, would you make any distinction there?
Mr. Bruce S. Rogow: I would not focus on injury, or pain, I would focus on punishment, Mr. Chief Justice.
I don’t want to have to measure afterwards whether or not there was an entitlement to hear and what we are saying is when one is beaten by an instrument there is a right to hearing.
I must add that I’m limiting this case to the facts of this case.
This case deals with an instrument, it doesn’t deals with karate chops, it doesn’t involve that kind of situation.
Let’s go with the limitation you are making on the hands would like to be gently slapped by Mohammad Ali?
Mr. Bruce S. Rogow: No I would not Mr. Justice Marshall.
Justice Thurgood Marshall: I don’t think you should limit it, if you want to go there ahead?
Chief Justice Warren E. Burger: But your Fourteenth Amendment argument is tied to punishment, just as your Eighth Amendment argument.
Mr. Bruce S. Rogow: Punishment, yes, down under the color of state law.
Chief Justice Warren E. Burger: Any difference in definition, of punishment for your Fourteenth Amendment argument and for punishment in your Eighth Amendment.
Mr. Bruce S. Rogow: Certainly because the Eighth Amendment argument is severe and excessive punishment, the 14th Amendment due process argument is punishment which is the punishment which is permissible, even under Florida Law, corporal punishment.
Justice William H. Rehnquist: Five slaps with a ruler on the hand, it still require a hearing before it could be administered?
Mr. Bruce S. Rogow: Yes, it would, and let me say this, under the Florida Law the statute in the school board regulations they already require some consultation with the principal, prior to administration of corporal punishment, that kind of corporal punishment.
So, the hearing that we are asking for would not be any intrusion really into the public school workings on a daily basis, we submit that there must be a minimal opportunity for a hearing, something similar to Goss versus Lopez and there must be decision is to whether or not the punishment should be administered by a neutral and detached person.
The Court of Appeals for the Fifth Circuit in absolutely precluding Eighth Amendment and Fourteenth Amendment relieve, it seems to us goes much too far.
I will reserve the rest of my time for tomorrow morning and rebuttal.
Chief Justice Warren E. Burger: We have about eight minutes I think we will let you go ahead Mr. Howard.
Argument of Frank A. Howard, Jr.
Mr. Frank A. Howard, Jr.: Mr. Chief Justice, may it please the court.
The court is being asked in this case to take two long further steps into still another area of school discipline, public school discipline.
The court has been asked to expand the bounds of the Eighth Amendment, as we have understood at least under the decisions of this court to provide Federal actions, whenever a student or a student’s parents perceives that a punishment has been immoderate or unacceptable to the student or the parent.
Secondly the court has been asked to mandate constitutional due process procedures in every case of corporal punishment by extension of the rule that the court adopted in Goss versus Lopez, providing for due process in suspension cases up to ten days.
We see the case as an opportunity, first for the court to clarify and reaffirm the scope of the Eighth Amendment as been limited to punishments inflicted either as a consequence of or collateral to the criminal process and secondly if not to overrule, Goss versus Lopez at least to confine it within it’s rationale and not to open that rule to threaten the discretion of educators and still more and more and more day to day decisions which are been made throughout the nation in the schools.
Chief Justice Warren E. Burger: How do you square that with what the court said in Strickland?
If records where now to say the same general procedures provided for Strickland against Wood case would apply here, would that be an extension, or would you regard that as an extension of law.
Mr. Frank A. Howard, Jr.: Well I would.
See the Wood versus Strickland case as an additional reason for the court not to take yet another step in the due process procedural field because
Justice William H. Rehnquist: Would that be another step or would it be the same step applied to a different context?
Mr. Frank A. Howard, Jr.: I think it would be an another step, Mr. Chief Justice I'm not recalling the specific facts of Wood versus Strickland now as I recall it, it was a suspension case, this is a…
Justice William H. Rehnquist: As a matter of very short time as a disciplinary measure, but if any corporal punishment.
Mr. Frank A. Howard, Jr.: I am urging the court to accept the view that corporal punishment is a lesser order of discipline even than suspensions.
Justice William H. Rehnquist: What is the first -- you are dealing I suppose, if I understand you, with the procedural due process aspect of this play, of this case but neither Goss or Strickland involved on the Eighth Amendment issue at all.
Mr. Frank A. Howard, Jr.: That is true sir, but I agree with counsel that we had a too separate decision.
Justice William H. Rehnquist: Mr. Howard State or Federal in Florida had any restrictions on corporal punishment in the school system?
Mr. Frank A. Howard, Jr.: At the time the case arose Mr. Justice the statue in Florida was a very short section which by negative implication, authorized corporal punished in the defining the authority of the teacher.
Since that time in fact just this year state legislature has enacted a fairly comprehensive, set of laws dealing with student conduct and it now extensively defines corporal punishment and provides procedures for how it is to be administered.
Justice Thurgood Marshall: But at time this record as I have read it was little bit horrible and it stands uncontradicted because of case in the law and it is (Inaudible) for me to do but they view it that that is possible under Florida law.
Mr. Frank A. Howard, Jr.: I could disagree Mr. Justice respectfully that, with your characterization of the record I disagree.
Justice Thurgood Marshall: What takes the little fellow hand I think some had this hand.
Mr. Frank A. Howard, Jr.: Well, Mr. Justice in considering the phrase under any definition cruel unusual.
We have in this case – I submit a few incidents of immoderate and even severe if you will punishment.
But in the context of what the case sort to establish and the size and variety of the school system and the fact most of the punishments which the record reflect were trivials.
I submit to you that the evidence did not come anywhere near showing cruel and unusual punishment, however you may choose to define that and...
Justice Thurgood Marshall: But at that time that teaches could do what ever he you want?
Mr. Frank A. Howard, Jr.: No sir he could not under the…
Justice Thurgood Marshall: What was the restriction…?
Mr. Frank A. Howard, Jr.: Well there was a Dade County School Board policy ineffective of the time which provided that a teacher must himself with the principal before corporal punishment could be administrated.
That punishment should take place in the presence of another adult.
Student should be informed of the reasons for the punishment and what the misconduct was.
Justice William H. Rehnquist: What was the punishment?
There were no restriction on the punishment could he be paddle 125 times?
Mr. Frank A. Howard, Jr.: There were no explicit restrictions except statements that it must be -- it must not exceed reasonable moderate bounds which has been the common law definition I understand it.
The best test of the record I might say Mr. Justice is the district judge who is the man, the court most of the position to assess the facts, dismiss this case at the close of the plaintiff’s evidence and use the plaintiff’s test, he accepted the standards of the Eighth Amendment did apply and found that the facts did not rise to that level.
Coming then to the Eighth Amendment issue, the issue as we see it is simply whether or not the amendments applies at all.
The Fifth Circuit in this case, the en banc court held that it did not and gave some careful analysis to the history and the rationality of the amendment.
One circuit disagrees the Eighth Circuit has held in a case that went only on the pleadings that the Eighth Amendment can apply there was no analysis, no reasoning to support the conclusion.
Justice William H. Rehnquist: Mr. Howard suppose there were two inmates in a mental institution, one was there because of the criminal commitment, the other one was there because of the civil commitment in the same institution.
Would the Eighth Amendment apply to one not to the other?
Mr. Frank A. Howard, Jr.: Mr. Justice I am aware of the Jackson versus Bishop case of course, I would say first with respect that this court has never gone so far as to say that punishments even to prisoners violates the Eighth Amendment.
Now I must say that I don’t have a lot of doubt what the outcome that is might be.
Chief Justice Warren E. Burger: Counsel I think we will resume that in the afternoon.