Chicago Tribune, April 18 2002 p. 11 -------------------- Justices question shackling of prisoners -------------------- By Jan Crawford Greenburg Washington Bureau April 18, 2002 WASHINGTON -- Alabama's former practice of shackling prisoners to a hitching post for long periods clearly violated the Constitution and should be grounds for a lawsuit against guards who engaged in the practice, a lawyer for an inmate told the Supreme Court on Wednesday. More than a few Supreme Court justices seemed eager to agree. Taking up the case of an inmate handcuffed to a post for seven hours in the hot sun, several justices seemed flabbergasted that the state was defending the practice. "Why isn't that ordinary common sense to think that is a very cruel and certainly unusual thing to do?" Justice Stephen Breyer asked a lawyer for Alabama. "Your position is ... the state could legitimately keep him hanging to this rail, no matter how hot it is, without water?" an incredulous Sandra Day O'Connor asked moments later. "Your position is that, in the hot sun, without water is fine?" At issue is whether Larry Hope can continue his lawsuit against prison guards who shackled him to a hitching post in 1995 after altercations with another inmate and a guard while serving on a prison work crew. During one episode in June of 1995, Hope allegedly was cuffed to the post seven hours without a shirt, given water only once or twice and did not get bathroom breaks. Hope, who has since been released from prison, sued eight guards in federal court, alleging they violated his right to be free from cruel and unusual punishment under the 8th Amendment. The guards argued that they could not be sued because the law wasn't clear that such practices were unconstitutional. In general, government officials are immune from suit unless they violate clearly established rights that a "reasonable person" would know about. A federal appeals court in Atlanta agreed that cuffing an inmate to a hitching post would be cruel and unusual punishment if the inmate were kept cuffed longer than the time needed to address an immediate danger or threat. But the court ultimately sided with the prison guards, ruling that the law wasn't clear enough for the guards to be held liable. Alabama was the only state to permit handcuffing inmates to metal hitching posts, but it has since stopped doing so. Nonetheless, the court's ruling could be important to all states because it could provide guidelines on when government officials can be subject to lawsuits. In urging the justices to reverse the appeals court, attorney Craig T. Jones argued Wednesday that the law in Alabama was clear enough and the guards should have known better. He said rulings by the federal appeals court covering Alabama establish that it is unconstitutional "to punish inmates through the use of restraints." The Bush administration agreed the prison guards had violated Hope's constitutional rights. Austin Schlick, assistant to the solicitor general, argued that the law was clear on the issue. But Nathan Forrester, Alabama's solicitor general, argued that the courts had not clearly said guards could not handcuff inmates to hitching posts. He emphasized that prison regulations had allowed the practice only where the inmates had been disrupting the work crew or had refused to work. He said Hope presented a "serious security issue" during a May 1995 incident, when he "had his blade raised," ready to strike another inmate. Copyright (c) 2002, Chicago Tribune