Book Excerpt: Impermissible Punishments: How Prison Became a Problem for Democracy

In the annals of the US Civil Rights Movement, the city of Little Rock, Arkansas is famous. In 1957, Arkansas Governor Orval Faubus sought to defy a federal desegregation order by deploying the state’s National Guard to block nine Black students from entering Little Rock’s Central High School. After President Dwight Eisenhower sent in troops, Faubus closed the school for a year.

Arkansas has another less well-known claim to fame. A decade after Black teenagers braved the taunts of white crowds, Chief Judge J. Smith Henley of the federal court in Arkansas read the 1965 petition from Winston Talley. Talley told the court that, “presently incarcerated,” he had been “beaten with a Whipp,” which he described as “Hand made” and measuring four inches wide and five feet long. Talley invoked the U.S. Constitution’s ban on “cruel and unusual punishment” and asked that “the Honorable Court . . . order . . . such floggings stopped. And the Whipp destroyed.”

Unlike many federal judges who summarily dismissed prisoners’ filings, Henley appointed prominent lawyers to represent Talley as well as two other white prisoners seeking relief and, after taking testimony, decided the case. Henley agreed that prisoners had a right to get into court but did not agree that the U.S. Constitution prohibited whipping. Instead, he set forth minimal constraints (the “Talley Rules”), calling for decision-making procedures and limiting lashes to ten at a time.

In 1967, William King Jackson, joined by two more white petitioners, brought new challenges. Federal judges again appointed luminaries of the Arkansas bar who, during the first and only US trial on whipping, established that the state forced prisoners to pick cotton, okra, and cucumbers six days a week, ten or more hours a day. Recorded in the 641-page transcript, witnesses described how staff and prisoners (called “trustys”) whipped individuals for not making quotas to net “profits” for Arkansas, which had no line in its budget for prisons. After listening for three days, federal judges reiterated that, as long as it was regulated, whipping was not “cruel and unusual punishment.”

The following year, Judge Harry Blackmun, writing for an appellate panel before his elevation to the U.S. Supreme Court, reversed that ruling. A first for the country, their decision categorically ruled out a form of “discipline” prison officials said they needed. In private notes, the judges described being appalled at whipping but worried about circumscribing prison officials’ powers and not ready to end solitary confinement. The resulting lengthy opinion did not reference slavery or the trial’s evidence of brutal lashings in the “colored section” when, as quoted, Blackmun discussed the challenge of distinguishing “the permissible from” impermissible punishments of people convicted of crimes.

That problem has haunted governments for three hundred years, which is why this book exists. To explain past and present delineations of the “permissible/impermissible” in punishment, I integrate and interrogate the history and impact of two social movements — one producing the profession called “corrections” and the other creating a new legal regime named “prisoners’ rights.” My account draws from both sides of the Atlantic to examine ideologies of punishment; the institutionalization and precepts of the corrections profession; the law that prisoners brought into being; and the shifting, contested understandings of what democratic societies owe to the people they incarcerate.

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Until the 1960s, U.S. prisoners who tried to get into court mostly hit a brick wall. State and federal governments — in Arkansas, Alabama, California, Illinois, New York and elsewhere — routinely argued that the U.S. Constitution had nothing to say about how imprisoned people were treated. Judges agreed and kept their “hands off” decisions of prison administrators.

That history means that when in 1965, Talley lost his argument that the “Whipp [be] destroyed,” he won in the sense that, by getting heard on the merits, he broke centuries of hegemonic power. In the wake of the Holocaust and in the midst of the U.S. Civil Rights Movement, and because of the guts of prisoners like Talley and Jackson (both were beaten for filing lawsuits), courts became one of many sites of debates about punishment’s parameters. These prisoners established a new proposition — that incarcerated people had the legal authority to call for limits on sovereign punishment powers and, as a consequence, some punishment practices had to change. As of this writing, constitutional law requires prisons to try to keep prisoners safe, provide some health care, create procedural protections when imposing certain in-prison punishments, respect the liberty of worship, and neither discriminate by race nor impede individuals’ access to courts.

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In this book, I lay the groundwork for developing a new constraint on punishment. I argue that governments cannot set out to “ruin” a person, an idea that was discussed in a 2019 U.S. Supreme Court discussion of the Eighth Amendment’s prohibition on “excessive fines.” Referencing the English Magna Carta and the “draconian fines” of the post-Civil War Black Codes aiming to put Black people back into servitude, the Court explained that governments were not to use their punishment powers for what a concurring opinion described as the economic “ruin of [a] criminal.” Thinking about ruin shifts the focus from what governments aim to do to the experiences of the people subjected to that punishment. Anti-ruination obligations acknowledge that punishment now entails a relationship beyond sheer domination.

A 21st-century anti-ruination principle ought not to be limited to economic sanctions; from both individual and state perspectives, democratic governments cannot set out to diminish individuals’ personhood through trying to debilitate them. Indeed, a thin version of anti-ruination explains why courts have ruled out a total lack of medical care, utter filth, and wanton violence in prisons. Moreover, the transnational corrections establishment agrees and has embraced a duty of care and acknowledged that prisoners have rights, even as failures to do so are legion.

The reason I use the term “ruination” rather than “ruin” is to underscore the action governments must take to make good on this premise. Further, the ruination I hope will be avoided is that of individuals and of a social order committed to being a democratic, rather than a totalitarian, regime. That distinction was repeatedly drawn in the 1960s and 1970s as the federal government, understanding itself as the leader of the “free world,” sought to distance itself from its “race problem” in part through recognizing criminal defendants’ and prisoners’ rights. As Justice Byron White explained in 1974 when the Court required some procedural protections before prisons took away good-time credits, “no iron curtain” existed “between the Constitution and the prisons of this country.” The recognition that incarcerated people are members of the political community imposes on the state a task different from what governments had in prior centuries. Democratic egalitarianism polities cannot select anyone, including those “duly convicted,” to debilitate; the legal relationship between people who are incarcerated and government does not end when law puts them into prison because law follows them there.

In the third decade of the 21st century, the risk of ruination has been exacerbated because the scale of incarceration outstrips staffing, as vacancy rates soar in crumbling facilities on both sides of the Atlantic. Moreover, prisoners’ rights are at risk in the United States, where federal judges have called for abandoning “evolving standards of decency” as a metric of “cruel and unusual punishments” and relying instead on what was “barbarous” in the 1790s. Hence, if ruin is going to stop, it will come from an appreciation that punishment is a political act that entails accepting the distinctive and expensive obligations a democratic polity takes on if it takes away people’s liberties. When analyses of permissible punishments occur — in correctional association meetings, legislatures, executive offices, courts, boardrooms, and living rooms — the questions are how governments can express commitments to equality and attend to the impact of deprivations on people punished and maintain well-being and degrees of autonomy. This anti-ruination obligation is distinct from the hierarchical ideology embedded in rehabilitation and can complement commitments to harm reduction and healing. Because it puts a significant burden on government decisions limiting individuals’ autonomy, it ought to reduce incentives to do so.

Marshaling the will to end the ruin of people in prison requires pressing to stop the ruin of people outside of prison. As odd as it sounds, prisons are social service providers. Even under the limited scope of U.S. prisoners’ rights, governments have affirmative obligations to supply food, clothing, housing, and health care. People on the streets do not, as of this writing, have federal rights to those services. In contrast, in many countries, subsidies exist as part of government relationships with people, in detention and not. Thus, what makes the United States “exceptional” today is not some characterological, intrinsic punitive stance, but its turn in the last decades away from reckoning with the history of slavery, away from providing minimal safety nets to all persons, and away from the transnational dialogue on punishment that its leaders helped to start more than a century ago.

A consequence of the United States’ impoverished approach to social services is that people outside prison could think that incarcerated individuals are getting “more” than government provides to people not “duly convicted.” Yet people on the streets have not lost the opportunity to seek food, health care, and housing. Distribution of resources is compelled by the act of taking a person’s freedom away. This proposition was put forth by Enlightenment theorist Jeremy Bentham who, while describing prisoners as “less eligible” than the working poor, nonetheless insisted they be provided food, clothing, and health care. The hard truth is that the fates of people in and outside of prisons are linked in terms of the need for social services, the racism that shadows criminal law enforcement and welfarist programs, and the imperative to legitimate exercises of state power. Altering an understanding of what states must provide to incarcerated people entails acceptance of the asymmetrical relationship that a government has with its populations; some need affirmative assistance or merit punishment that others do not.

This new metric of punishment’s legitimacy — the burdens of the special relationship that governments have to people they punish — marks the rejection of prison practices reiterating the structure of slavery and concentration camps and embraces propositions advanced by Talley and others about their status as political equals. Thus far, this encounter between rights and incarceration has not generated a full acceptance of the obligations that flow. I delve into incarceration’s practices to make plain how foreign and abnormal they are when compared to ordinary human activities. The history documents that the construction of this form of captivity was built on a sequence of choices that were neither inevitable nor are irretrievable. Appreciating the weirdness of micro-control of individuals is one route to realizing that prison’s current parameters are abhorrent when measured against the baseline of reasonable expectations for personal liberty, autonomy, and respect in democratic social orders aiming to lessen racist and class hierarchies. Thus, prisons operating on an anti-ruination principle have to rethink the radical reduction in autonomy that is commonplace in incarceration. Moreover, once democratic orders no longer embrace punishment practices developed and justified by Enlightenment ideology, the accompanying vocabulary drenched in colonial hierarchies of “civilization” that produced goals of “corrections” and “rehabilitation” can be replaced by obligations of respect for all people, including the “duly convicted.”

This book is thus an invitation to learn about the people — prisoners, theorists, correctional professionals, judges, and politicians — who shaped prisons and to enter into debates about the results. I show what governments have done, how a corrections bureaucracy gained power, what prisoners succeeded in stopping, as well as the impediments to and the potential for fundamental change.

Judith Resnik is the Arthur Liman Professor of Law at Yale Law School and the founding director of Yale’s Arthur Liman Center for Public Interest Law. Her new book, Impermissible Punishments: How Prison Became a Problem for Democracy, is now available.

Suggested Citation: Judith Resnik, Book Excerpt: Impermissible Punishments: How Prison Became a Problem for Democracy, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Sep. 26, 2025), https://statecourtreport.org/our-work/analysis-opinion/book-excerpt-impermissible-punishments-how-prison-became-problem