HOLT v. SARVER II - 1970 - THE SUPREME COURT ADDRESSES THE DARK & EVIL WORLD - Law - http://maxpages.com/arklaw/Holt_v_Sarver_II_Part

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n4 Following the 1966 investigation certain former employees at the Tucker Farm were charged in the Circuit Court of Jefferson County, Arkansas, with having violated Ark. Stats. § 46-158 which made it a felony for any Penitentiary employee to inflict a punishment on a convict in excess of the punishment prescribed by the then Penitentiary Board. The Circuit Court held that the Arkansas statute was violative of the Arkansas Constitution in that it involved an invalid delegation of legislative power to the Board. The informations were dismissed by the Circuit Court, and the Supreme Court of Arkansas affirmed. State v. Bruton, 246 Ark. 293, 437 S.W. 2d 795.

In 1968 a number of prisoners at Cummins went on a sit down strike and refused to disperse. They were fired upon with shotguns loaded with birdshot by a number of free world people and trusty guards. Some inmates were wounded, one seriously. Fortunately, no one was killed.

The abortion of the State court prosecutions and the 1968 episode just described caused the United States Department of Justice to ask the Court to call the federal Grand Jury for the Eastern District of Arkansas into special session in the summer of 1969. That was done, and a number of indictments were returned against Penitentiary employees and former employees and against a number of former inmates charging violations of 18 U.S.C.A. § 242. The Court conducted a number of jury trials which with one exception resulted in verdicts of not guilty, although the evidence in all of the cases was ample to convict. In one case the jury was not able to agree. As to that case the defendant ultimately pleaded nolo contendrere, and another plea of nolo contendere was entered by another defendant.

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[**17]

[*369] When the Legislature convened in January 1967 it promptly created the Penitentiary Study Commission. The
Emergency Clause included in Act 22 of 1967 creating the Commission and directing it to make a detailed study of the farms recited that widespread publicity about the Penitentiary had "raised serious questions in the minds of public officials and the general public regarding the facilities, practices, and disciplinary procedures at the State Penitentiary and that it is necessary that a thorough study and evaluation of the penal system in Arkansas be made as soon as possible."

The Commission's study was detailed, and its report was sharply critical of many aspects of the prison system; numerous reforms were recommended. Responding to the report, the Legislature in special session in early 1968 adopted Act 50 of that year, a sweeping statute dealing with the prison system and which recognized that training and rehabilitation should be essential objectives of the farms. That Act, among other things, created the Department of Corrections which took the place of the old Penitentiary Board.

The legislation adopted in 1967 and 1968 and Act 377 of 1969 establishing the [**18] Tucker Intermediate Reformatory are forward looking; but at least as yet they have not had any significant impact on the distinctive characteristics of the Arkansas penal system mentioned heretofore.

Returning now to this case, the testimony of Director Bennett, the report of the Study Commission, and the 1969 report of Dr. Friel to the Commission on Crime and Law Enforcement, are all to the effect that the Arkansas Penitentiary System is substandard and outmoded when measured by accepted penological standards, and that improvements are needed in many areas. Commissioner Sarver himself has come forward with sweeping recommendations for radical improvements to be made over a period of about ten years.

The Court, however, is limited in its inquiry to the question of whether or not the constitutional rights of inmates are being invaded and with whether the Penitentiary itself is unconstitutional. The Court is not judicially concerned with questions which in the last analysis are addressed to legislative and administrative. A practice that may be bad from the standpoint of penology may not necessarily be forbidden by the Constitution. And a prison system that would be excellent [**19] from the point of view of a modern prison administrator may not be required by the provisions of the Constitution with which the Court is concerned.

II. The Thirteenth Amendment Claim

The Court takes up first the Thirteenth Amendment contention of Petitioners. Some facts relevant to that claim have been stated already; other facts to be stated are relevant not only to the Thirteenth Amendment claim but also to Petitioners' claims based on the Fourteenth Amendment.

The Thirteenth Amendment, adopted immediately after the Civil War, provides explicitly that:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

The purpose of the Amendment was, of course, to abolish African slavery and practices related or analogous thereto. It will be observed that the Thirteenth Amendment, unlike the Fourteenth and certain other Amendments, is more than a prohibition upon the States. [*370] The Thirteenth Amendment abolishes slavery and involuntary servitude, except as punishment for crime, everywhere in the United States, [**20] its Territories, and possessions. The Thirteenth Amendment clain with which the Court is concerned relates primarily to the requirement that Arkansas convicts work for long hours withoug pay in the fields on the farms for the financial benefit of the State. Not all rank and file Arkansas convicts are required to perform labor of that type, but substantial numbers of them are. As in other contexts, the principal problem is at Cummins. That is true because the farming operation now being conducted at Tucker is limited to the production of food for inmate consumption. Tucker farmlands not used for that purpose have been leased to private operators.

Cummins Farm is located on fertile land well adapted to producing just about any kind of crop that can be grown in Arkansas. The principal crops produced on the farm are cotton, soybeans, rice, vegetables, fruits, and berries. Other substantial farm operations include livestock, dairying, and poultry production.

According to the report of the Study Commission, there were 9,070 acres of land in cultivation at Cummins as of December 15, 1967. As of the same date the Farm had 2,070 cattle, 800 hogs, 40 horses, 160 mules, and 1,600 poultry. [**21]

Again according to the Commission, during 1967 60 percent of the cultivated acreage at Cummins was devoted to crops raised for sale on the market; 30 percent to crops that supported the livestock and poultry; and 10 percent to garden vegetables and other crops for the feeding of civilian personnel and inmates.

The Commission's report reflects that with respect to the fiscal year ending June 30, 1966, the Penitentiary, both farms apparently, derived an income of $1,415,419.43 from the sale of crops, including field crops, vegetables, fruit, and pecans; the corresponding figure for the year ending June 30, 1967, was $1,242,191.38. Sales of farm products other than crops amounted to $213,561.22 for fiscal '66 and to $131,806.13 for fiscal '67.

Total receipts of the Penitentiary from all sources for fiscal '66 was $1,763,487.09 and total expenditures came to $1,473,497.70. Corresponding figures for fiscal '67 were $1,566,712.76 and $1,785,570.33.

The December 15, 1967, inventory of equipment at Cummins, appearing at page 6.09 of the Commission's report, indicates that there has been substantial mechznization of the Farm's operation. However, the evidence reflects that much of the [**22] work is still done by hand, and the fact that in 1967 the Farm owned 160 mules indicates that a good deal of power utilized at the Farm is "mule power."

In 1967 the Farm had a cotton allotment of 962 acres worked largely by hand, and the production of fruits and vegetables involves a great deal of what is commonly called "stooped labor."

Men assigned to the fields are required to work long hours six days a week, except for a few holidays, if weather permits. They are worked regardless of heat, and summers can be very hot at Cummins; in the winter they are not required to work when the temperature is below freezing, but they are required to work in merely bad or wet weather regardless of the season of the year. The men are not supplied by the State with particularly warm clothing for winter work, nor are they furnished any bad weather gear. There is evidence that at times men have been sent to the fields without shoes or with inadequate shoes. The field work is arduous and is particularly onerous in the case of men who have had no previous experience in chopping and picking cotton or in harvesting vegetables, fruits, and berries. What skills they may acquire in connection with [**23] their field work are of very little, if any, value to them when they return to the free world.

[*371] Naturally, the inmates do not like to work in the fields. Prior to the decision of the Court of Appeals in Jackson, supra, most of them could be forced to do so by applications of the strap. Now there is no sanction, except confinement in isolation, to compel the men to work, and many of them are willing to undergo solitary confinement in order to avoid field work.

Rankers assigned to work in the fields do so in groups known as "long lines." The numbers of men in long lines may vary considerably. Theoretically, each long line is under the supervision of a free world employee known as a field warden. Actually, the rankers are under the immediate and direct supervision of trusties known as "long line riders" and inmate "pushers." As his name implies, the long line rider is a mounted man who rides back and forth among the working men. Since he is in very close proximity to the rankers and is somewhat vulnerable to attack from them, he ordinarily does not carry a firearm, although he may do so on occasions. The real guarding of the rankers in the field is done by other [**24] trusties armed either with high powered rifles and known as "high powers," or with shotguns and known, logically, as "shotguns."

According to the Study Commission's report, a long line at Cummins on a typical date might be made up of, say, 56 rankers, nine trusty guards, and a long line rider. The perimeter of the plot in which the rankers are working is occupied by guards armed with rifles; guards armed with shotguns work in closer proximity to the rankers.

If a ranker tries to escape, the trusties are instructed to fire one warning shot into the air; if the ranker persists in his effort to get away, the trusties fire at him to "stop" him; it makes no difference whether he is killed or not. Whether a ranker is trying to escape is at times subject to question, and the question is answered summarily
by the guards. Thus, a ranker who unwittingly strays across an imaginary deadline may be fired upon. In addition to running the risk of being shot by an overzealous guard or by one with merely poor judgment there is always the possibility that a guard will deliberately murder an inmate on the pretense that he was trying to escape.

As stated, the men are paid nothing for their work. [**25] If an inmate wants to earn money legitimately in his spare time while in the Penitentiary, there are only two ways in which he can do it. The inmates as a class are permitted to have an Inmate Welfare Fund which operates a commissary type store and which also operates a blood bank. Profits from the store and the blood bank inure to the Fund which, parenthetically, appears as of this moment to have more money available to it than Respondents have available to them to run the Penitentiary. A very limited number of inmates are employed in the store and are paid small monthly salaries. Other inmates can sell their blood once a week at the blood bank and receive $5 per visit. The inmates refer to selling their blood as "bleeding at the blood bank." However, not all inmates are permitted to "bleed" and, hence, cannot earn the $5; for example, the bank will not accept blood from an inmate with a morbid condition of the liver.

What small comforts and luxuries the inmates have legitimately are not furnished by the State but by the Welfare Fund, and it is the Fund, not the State, that gives a departing inmate the nominal sum of $25 to see him on his way.

Director Bennett testified that [**26] inmates of federal prisons and of many State prisons can earn legitimate although usually very low wages while confined. He thinks that such wage payments are desirable for several reasons: they give a man an incentive to work; they improve his morale; they enable him to be of some assistance to his dependents; and they perhaps enable him to build up a small stake for himself against the day on which he is to be released from prison. Mr. Bennett conceded, however, that there are still some [*372] States, like Arkansas,
that pay their convicts nothing.

The picture of working conditions at Cummins that has been painted is not attractive, and the system would not be called humane by modern standards. But, the question for decision at this moment is whether the system is prohibited by the Thirteenth Amendment.

The Arkansas system of working convicts is not "slavery" in the constitutional sense of the term. The State does not claim to own the bodies of its prisoners. The situation does involve "servitude," and there is no doubt whatever that the "servitude" is "involuntary."

But, it is equally clear that this servitude has been imposed as punishment for crimes whereof the inmates [**27] have been duly convicted. Conceding that the work required is hard and tedious, that it is performed under harsh conditions, that the State requires it to produce income for the State, and that the system serves little other purpose, if any, the Court is not persuaded that the system violates the Thirteenth Amendment.

According to Director Bennett, the idea that prisons and prisoners ought to support themselves is as old as American penology. He referred to the fact that the convict-leasing system came into existence at a very early stage as the States found that it was more profitable to lease their convicts than to work them themselves. And he pointed out that one of the best descriptions of the leasing system is to be found in Margaret Mitchell's Civil War novel, "Gone With The Wind."

When Congress submitted the Thirteenth Amendment to the States, it must have been aware of generally accepted convict labor policies and practices, and the Court is persuaded that the Amendment's exception manifested a Congressional intent not to reach such policies and practices.

Heflin v. Sanford, 5 Cir., 142 F.2d 798, is instructive on this phase of the case although it did not involve convict [**28] labor. Heflin, a conscientious objector, was ordered to report for work of national importance during World War II; his compensation would have been but nominal. He refused to report and was sent to the penitentiary for violating the Selective Service Act. On habeas corpus he contended that to require him to do work of national importance with little or no pay amounted to prohibited slavery and involuntary servitude. His contention was rejected. The Court pointed out that there is a difference between "involuntary servitude" and "uncompensated service," and that the Thirteenth Amendment prohibits the one, except as punishment for crime, but does not prohibit the other.

III. Fourteenth Amendment Claim - Cruel and Unusual Punishment.

The Eighth Amendment to the Constitution of the United States prohibits the infliction of "cruel and unusual punishments." Originally a restriction on the federal government, it has been held that the Eighth Amendment has been carried forward into the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758, and it was on the basis of the Eighth Amendment that relief was granted in Talley, Jackson, and [**29] Holt I, all supra.

An individual convict may, of course, be subjected to a cruel and unusual punishment actually inflicted on him personally, as by his being beaten with the Penitentiary strap, or by being shocked electrically by the Tucker Telephone, or by being compelled to stand upon the "teeter board" for long periods of time, or by other means of punishment or torture.

It appears to the Court, however, that the concept of "cruel and unusual punishment" is not limited to instances in which a particular inmate is subjected to a punishment directed at him as an individual. In the Court's estimation confinement itself within a given institution may amount to a cruel and unusual punishment prohibited by the Constitution where the confinement [*373]is characterized by conditions and practices so bad as to be shocking to the conscience of reasonably civilized people even though a particular inmate may never personally be subject to any disciplinary action. To put it another way, while confinement, even at hard labor and without compensation, is not considered to be necessarily a cruel and unusual punishment it may be so in certain circumstances and by reason of the conditions [**30] of the confinement. That is certainly the law in the case of
prisoners confined in isolation, Courtney v. Bishop, supra, Holt I, supra, and cases there cited; and the Court sees no reason why it is not the law in cases of prisoners confined "in population," as it is called.

In the instant case Petitioners contend that overall conditions in the Arkansas penal system, including but not limited to those relating to inmate safety, may be so bad that it amounts to an unconstitutional cruel and unusual punishment to expose men to those conditions, regardless of how those conditions may operate fortuitously on particular individuals. Is that contention sustained by the evidence?

The distinguishing aspects of Arkansas penitentiary life must be considered together. One cannot consider separately a trusty system, a system in which men are confined together in large numbers in open barracks, bad conditions in the isolation cells, or an absence of a meaningful program of rehabilitation. All of thosse things exist in combination; each affects the other; and taken together they have a cumulative impact on the inmates regardless of their status. That should be borne in mind as one reads [**31] the following descriptions of the trusty system, the barracks system, the isolation cells, and other aspects of prison life.

Again, these descriptions are based primarily on conditions at Cummins. They are based on a large volume of testimony much of which was really a repetition of what the Court heard when it tried Holt I.

The Trusty System.

No one questions the propriety or desirability of according trusty status to deserving convicts, and perhaps all prisons do. But the trusty system as it exists in Arkansas is sui generis. The trusties run the prison. They not only guard other inmates; they also perform many administrative tasks normally performed by free world people, and their authority over other convicts of lesser rank is great. Commissioner Sarver testified without contradiction that more than 90 percent of prison functions relating to inmates are performed by trusties. The few free world people are only nominally in command of the situation at Cummins, and the trusties could take it over in a moment. Perhaps the reason they do not do so is that they do not want to spoil a good thing.

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