Sostre v. McGinnis

FEINBERG, Circuit Judge

(dissenting and concurring) :

Because I agree with most of the exhaustive majority opinion, I regret that I find it necessary to dissent from the treatment of the cruel and unusual punishment point and from the reversal as to defendant McGinnis. As to the former, the majority opinion reaches three results, from each of which I dissent. The most important of these is the refusal to hold that there must be a definite limit on how long a prisoner may be kept in punitive segregation, or solitary confinement. 1 The majority holds that for “serious” offenses, the Constitution requires no limit so long as the prisoner has the option of submitting to prison discipline. Second, the majority holds that Sostre’s alleged offenses considered together would have been “serious,” if Warden Follette had acted for proper motives. Third, even though the warden’s motives were “improper,” the majority refuses to rule that Sostre’s punishment was cruel and unusual.

Before considering these three aspects of the majority opinion, it must be emphasized that Sostre was segregated for over a year and, as Judge Motley noted, would in all likelihood still be effectively isolated but for the intervention of the district court. There is an intimation in the majority opinion that Sostre was not effectively cut off from usual day to day contact with other human beings, 2 but the district judge’s opinion makes clear that he was. The district judge and the majority both agree that “the crux of the matter is human isolation,” and the district court opinion sets forth in mel-

ancholy detail the conditions that were imposed upon Sostre and the reasons why. I will not repeat them here except to note that the full vindictive flavor of defendants’ treatment of Sostre is indicated by one incident, relegated to a footnote in the majority opinion. The day after Judge Motley ordered Sostre’s release from over a year of segregation, he was again disciplined for having “dust on his cell bars.” This caused him to miss the regular July 4th celebration, which would have brought him in contact with prisoners from another part of the prison, such contact being permitted only once a year on July 4. Judge Motley found that the punishment was imposed upon Sostre in retaliation for his legal success before her.

The district judge found that the isolation imposed on Sostre was “dangerous to the maintenance of sanity” and “ ‘could only serve to destroy completely the spirit and undermine the sanity of the prisoner.’ ” 312 F.Supp. 863, 868, 871 (S.D.N.Y.1970), quoting Wright v. McMann, 387 F.2d 519, 526 (2d Cir. 1967). This was a finding of fact. The judge also concluded as a matter of law that “subjecting a prisoner to the demonstrated risk of the loss of his sanity as punishment for any offense in prison is plainly cruel and unusual punishment as judged by the present standards of decency.” Id. at 871. The majority opinion does not make explicit whether it overrules the judge’s finding of fact, although it hints that it does. 3 But in order to reverse the district court on this issue the majority must hold either that Judge Motley’s finding of fact is clearly erroneous or that, even if true, the punishment imposed on Sostre did not amount to cruel and unusual punishment as a matter of law. Neither holding would be justified.

*208 As to the first, it is difficult to see how Judge Motley’s factual finding that Sostre’s isolation threatened sanity could be characterized as clearly erroneous. Testimony at trial from experts with impressive credentials clearly supported that finding. Dr. Halleck, in response to a hypothetical question outlining the conditions of Sostre’s punishment, stated that they could undermine the prisoner’s sanity. Sol Rubin supported that view. It is true that Dr. Johnston, testifying for the State, disagreed. But while the district judge, as trier of fact, was free to believe the experts for plaintiff or for defendants, we may do neither. The trial judge chose to believe the former, and I do not see how her finding on this evidence can be characterized as clearly erroneous.

On the second assumption, what the majority does is to hold that Sostre’s lengthy, unlimited isolation, which was “dangerous” to his sanity, does not violate the eighth amendment. With deference, I disagree. The standard for determining “cruel and unusual punishment” has been expressed in a number of ways, all imprecise; e. g., “the wanton infliction of pain,” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 , 67 S.Ct. 374 , 91 L.Ed. 422 (1947); conduct which “shocks the most fundamental instincts of civilized man,” id. at 473 , 67 S.Ct. at 381 (dissenting opinion); a method of punishment which violates the “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958). These notions are, of course, subjective to some extent. What may be safely said is that the amendment prohibits “a hard core of inhuman conduct,” see 84 Harv.L.Rev. 456, 457 (1970). There is no doubt, as the majority concedes, that a prisoner is not a constitutional pariah. Were that not the case, there would be no basis for the holding that the first amendment was violated here. But the eighth amendment, no less than the first, protects Sostre. 4 Its command is both spacious and changing.

The fact that solitary confinement for an indefinite period has historically been accepted as a viable instrument of prison discipline does not prevent us from finding that it violates the eighth amendment. What might once have been acceptable does not necessarily determine what is “cruel and unusual” today. Recently, the Eighth Circuit has held that whipping by strap is proscribed, although it had once been a familiar practice. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). Indeed, this court emphasized only a few years ago that the eighth amendment “is not fastened to the obsolete.” See Wright v. McMann, supra, 387 F.2d at 525 , quoting Weems v. United States, 217 U.S. 349, 378 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910). In this Orwellian age, punishment that endangers sanity, no less than physical injury by the strap, is prohibited by the Constitution. Indeed, we have learned to our sorrow in the last few decades that true inhumanity seeks to destroy the psyche rather than merely the body. The majority opinion emphasizes that after all Sostre could have obtained release from isolation at any time by agreeing to abide by the rules and to cooperate. Perhaps that is so, but that does not change the case. That response could be made were a prisoner kept in solitary for two years instead of one, or for five years, or for ten, or more. The possibility of endless solitary confinement is still there, unless the prisoner “gives in.” The same observation could be made if Sostre were tortured until he so agreed, but no one would argue that torture is therefore permitted. The point is that the means used to exact submission must be constitutionally acceptable, and the threat of virtually endless isolation that endangers sanity is not. *209 The crucial holding of the majority-opinion is the refusal to put any limit upon the period of solitary confinement. It is the unusual duration and the open-ended nature of the isolation that the district court and the experts regarded as inflicting the worst psychological harm. Accordingly, as we did in Wright v. McMann, supra, 387 F.2d at 526 , I would hold that the punishment here, “which could only serve to destroy completely the spirit and undermine the sanity of the prisoner,” runs afoul of the eighth amendment.

The second fundamental reason why I differ with the majority opinion stems from the contrast between what it finds necessary to decide and what it refuses to decide. As indicated above, the majority states in an extended dictum that if the warden’s motives had been proper, the combined effect of Sostre’s alleged violations would have been “serious” enough to justify the harsh punishment he received. Thus, the majority stresses “the seriousness of the multiple offenses charged against Sostre” and expresses “no view as to the constitutionality of such segregated confinement if it had been imposed on account of any one or any combination of the offenses charged against Sostre other than all of them.” But the fact is that two of the allegedly serious “multiple offenses” were Sostre’s refusal to desist from preparing legal papers for a codefendant and his possession of six tables of contents torn from issues of the Harvard Law Review. I would not hold unconstitutional the isolation of an adult prisoner for a sharply limited period as punishment for a. serious breach of prison discipline, e. g., what the majority calls “a credible threat to the security of the prison,” see p. 194, supra. But these two offenses were simply not grave enough to justify the extremely severe punishment visited upon Sostre. Accordingly, the ex-cessiveness of the penalty for these two alleged transgressions would alone violate the eighth amendment’s proscription of cruel and unusual punishment, and I would say so.

Finally, while the majority reaches out to decide that Sostre’s confinement would have been constitutional under a hypothetical set of facts, it refuses to rule that his punishment was cruel and unusual even though it was actually meted out for improper reasons. It is true that the majority also leaves open the constitutionality of such “confinement as Sostre experienced,” if imposed for “lesser offenses.” The inconsistency of this approach is apparent since if such confinement, in the majority’s view, could ever be so excessive a penalty as to be unconstitutional, it should be declared so when there was no basis for the confinement at all.

In sum, keeping Sostre in solitary for over a year was “cruel and unusual punishment” because (1) the length and open-ended nature of his confinement threatened sanity; (2) two of the alleged offenses were so minor as to make the penalty constitutionally disproportionate; and (3) the ostensible reasons were a pretext for vindictive action. I also agree with Judge Smith’s opinion with regard to defendant McGinnis. For the reasons and to the extent set forth above, I dissent.

HAYS, Circuit Judge, dissenting (with whom MOORE, Circuit Judge, concurs):

I dissent from the affirmance of any grant of injunctive relief or damages.

In deciding this ease the majority have overlooked two fundamental guiding principles. The first is that although persons serving sentences in prison for crime are not to be denied all constitutional protections, there are significant differences between the constitutional rights such prisoners may assert and the constitutional rights of those who are free from prison restraints. For example, although the majority holds that Sostre is protected by the Constitution in his right orally to set forth his political opinions to his fellow prisoners, it may be that even they would balk at a claim that the Constitution gave Sostre the right, similar to the *210 right which he would have if he were free, to assemble the inmates and harangue them with revolutionary political doctrines. As the Court of Appeals of the Fourth Circuit said in McCloskey v. Maryland, 337 F.2d 72, 74 (4th Cir. 1964) , persons in prison have “no judicially enforceable right to propagandize within the prison walls * * The other fundamental principle which receives short shrift at the hands of the majority is that the federal courts should be extremely hesitant to take over the administration of state prisons. We have said that the federal courts should refuse to interfere with the internal affairs of state prisons except in the most extreme case involving “ ‘conduct that shocks the conscience’ ” or where the acts of prison officials are “ ‘barbarous.’ ” Church v. Hegstrom, 416 F.2d 449, 450-451 (2d Cir. 1969) (citations omitted). See also Wright v. McMann, 387 F.2d 519, 527-528 (2d Cir. 1967) (Lumbard, Ch. J., concurring); Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied, 379 U.S. 892 , 85 S.Ct. 168 , 13 L. Ed.2d 96 (1964); Jackson v. Bishop, 404 F.2d 571, 577 (8th Cir. 1968) (Blackmun, C. J.). Correction authorities must have wide discretion in matters of internal prison administration. Smith v. Schneckloth, 414 F.2d 680, 681 (9th Cir. 1969); Beard v. Lee, 396 F.2d 749, 751 (5th Cir. 1968); Lee v. Tahash, 352 F.2d 970, 971-972 (8th Cir. 1965) ; McCloskey v. Maryland, supra, 337 F.2d at 74 ; Sostre v. McGinnis, supra, 334 F.2d at 908. Their decisions in matters of prison discipline should not be disturbed when they are supported by evidence and do not result in shocking deprivations of fundamental human rights. See Wright v. McMann, supra.

In the present ease Warden Follette testified that Sostre’s punishment was based upon (1) defiance of Follette’s order to desist from preparing legal papers, (2) refusal to answer proper questions, 1 (3) statements about his impending liberation, and (4) possession of several items of contraband in his cell. Sostre did not even deny the truth of the first three of these accusations and the fourth was supported by ample evidence. Nevertheless Judge Motley disregarded Follette’s findings and testimony and found that Sostre was not punished for any of these infractions.

Observance of the correct legal principles would lead in this case to reversing the trial court with respect to all relief granted.

. See, c. g., “[W]e cannot agree [that the conditions Sostre endured] require that similar punishments be limited in the future to any particular length of time,” p. 191, supra; “[T]he Eighth Amendment [does not forbid] indefinite confinement under the conditions endured by Sostre for all the reasons asserted by Warden Follette until such time as the prisoner agrees to abide by prison rules,” p. 193, supra.

. "[H]e was not as isolated in his segregation as ‘solitary’ would imply,” see p. 183, supra.

. See p. 185, supra.

. Through the due process clause of the fourteenth amendment. See Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1961).

. In order to maintain discipline prison inmates may be required to answer questions fully and completely. See United States ex rel. Sperling v. Fitzgerald, 426 F.2d 1161, 1165 (2d Cir. 1970) (Lumbard, Ch. J., concurring).