Between the 1960s and the mid-1990s, many inmates of state prisons brought lawsuits in federal court alleging that prison officials had violated their Eighth Amendment right to be spared cruel and unusual punishment. At first, these suits focused on specific incidents or prison practices, such as the improper use of force or the denial of access to certain religious texts. Later, prisoners’ claims expanded to characterize general prison conditions—encompassing factors such as overcrowding and poor medical care, sanitation, hygiene, food, and safety—as constituting cruel and unusual punishment. By the late 1980s, inmates across the country had brought more than thirty state prison systems before the federal courts. Many of these suits led to significant penal system reforms. This spotlight provides a brief historical overview of the federal courts’ role in protecting state inmates’ Eighth Amendment rights. 

To understand why Eighth Amendment prison litigation did not emerge prior to the 1960s requires one to consider several important legal changes that took place in that decade. Most fundamentally, it is the states that prosecute most crimes and hold the vast majority of prisoners, and before 1962 the states were not subject to the Eighth Amendment (analogous provisions in state constitutions are not enforceable in federal court).[1] The Supreme Court’s ruling in Robinson v. California (1962) that the Eighth Amendment applied to the states via incorporation by the Due Process Clause of the Fourteenth Amendment opened the door to federal claims that state prisons had violated the U.S. Constitution by imposing cruel and unusual punishments.

Shortly before Robinson, a different Supreme Court decision expanded the ability of those claiming deprivation of their constitutional rights to sue state officials in federal court. U.S. Code Title 42, section 1983 (often referred to simply as “section 1983”) is derived from the Ku Klux Klan Act of 1871, which permitted individuals to sue in federal court for deprivation of their civil rights by someone acting “under color of state law.” Initially aimed at preventing the Ku Klux Klan and others from terrorizing African Americans in the South during Reconstruction, the law was little used in the first half of the twentieth century. In Monroe v. Pape (1961), however, the Supreme Court interpreted the phrase “under color of state law” broadly, holding that it applied to public officials who abused their authority. According to the Court’s ruling, actions not authorized by state law—a police officer using excessive force on a suspect, for example—could create a cause of action under section 1983 if the defendant was exercising authority conferred by the state. Monroe breathed new life into section 1983, making the federal courts hospitable to a wider range of civil cases against state officials, including prison commissioners and wardens.

One other legal barrier to Eighth Amendment prison litigation fell during the 1960s. Typically, principles of federalism dictated that inmates suing state prison officials be required to file suit in state court. As the U.S. Court of Appeals for the Fourth Circuit explained in Sewall v. Pegelow (1961), running prisons was an executive function of a state government with which federal courts would not usually interfere. A 1964 Supreme Court ruling established, however, that while federal courts would not hear ordinary complaints arising from the routine management of a state prison, claims that constitutional rights had been violated would be treated differently. In Cooper v. Pate (1964), an inmate of an Illinois state prison filed suit in a U.S. district court, asserting that he had been deprived of various constitutional rights because he was denied permission to purchase a Koran. The district court dismissed the case in accordance with the federal courts’ typical practice of noninvolvement with state prison management. The U.S. Court of Appeals for the Seventh Circuit affirmed, stating that a prisoner disapproving of prison rules ordinarily had “no basis for coming into a federal court seeking relief even though he may claim that the restrictions placed upon his activities are in violation of his constitutional rights.” In a one-paragraph opinion, the Supreme Court ruled the dismissal of the case erroneous. Cooper was the first case in which the Court allowed a prisoner to sue a state prison official under the Bill of Rights. While the Court did not explain its ruling, its opinion cited cases from the Second and Fourth Circuits distinguishing constitutional claims from routine complaints over prison discipline.

By giving plaintiffs more power to sue state officials for violating their constitutional rights, applying the Eighth Amendment to the states, and allowing constitutional claims against state prison officials to proceed in federal court, the Court’s rulings in Monroe, Robinson, and Cooper established necessary conditions for state prisoners to file Eighth Amendment lawsuits. The dismantling of legal barriers to such suits was not sufficient, however, to determine what remedies federal courts would provide upon finding a constitutional violation. The Eighth Amendment might not have become a vehicle for widespread prison reform absent additional legal developments taking place in the 1960s.

Before the 1960s, federal courts finding government officials—be they federal, state, or local—in violation of the law enjoined those officials from engaging in illegal conduct but typically did not order them to take specific actions to remedy legal violations. The Supreme Court’s rulings in Brown v. Board of Education (1954) and Brown v. Board of Education II (1955) were catalysts for change, however. These landmark opinions holding segregated public schools unconstitutional and requiring officials to desegregate schools “with all deliberate speed” led to a host of lawsuits from plaintiffs seeking injunctive relief from now-unlawful segregation policies.

The school desegregation cases eventually broadened the scope of injunctive relief, as it was in this context that judges began to order defendants to take specific actions to remedy constitutional violations. Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit was particularly influential in this regard. Judge Wisdom believed that the Brown rulings required school boards not merely to cease enforcing segregation but also to take action to integrate their schools. In accordance with this belief, Judge Wisdom imposed a detailed remedial decree on the defendants in United States v. Jefferson County Board of Education (1966). Wisdom’s order, which became a model for the entire Fifth Circuit (then consisting of Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas), included fine-tuned instructions on matters such as school assignment, transportation, and curriculum. The decree and others like it presaged a new willingness on the part of federal judges to prescribe specific institutional remedies rather than leaving it solely up to defendants to craft solutions. Going forward, officials were not only ordered to comply with the law but were frequently given a roadmap to compliance as well. 

As Yale Law School professor Owen Fiss explained in a 1977 law review article, Brown and the cases arising from it helped to usher in institutional reform litigation as a new legal paradigm involving equitable remedies:

Brown was accepted into the legal popular culture as legitimate, so much so that it began to function as an axiom. In the lower courts it yielded arguments of this nature: “This use of injunctive power is analogous to that of Brown, and therefore it is permissible.” As a consequence federal court access was assumed for administrative decrees reaching state prisons and mental hospitals, public housing projects, and local police departments.

Fiss referred to court orders requiring significant institutional changes as “structural injunctions.” Federal judges’ application of this type of injunction to state prisons became increasingly common throughout the 1970s.

Plaintiffs bringing cases against prison officials in the 1960s were entering uncharted waters to a great extent. Before the 1960s, there had been few Eighth Amendment cases in the federal courts, so judges had little precedent on which to rely in determining what constituted a cruel and unusual punishment. The most significant Eighth Amendment precedents were cases from the late nineteenth and early twentieth centuries, two of which arose in the context of the death penalty. In Wilkerson v. Utah (1879), the Court upheld a territorial court’s imposition of the death penalty by shooting. In In re Kemmler (1890), the Court made clear in dicta that it did not consider the electric chair, despite its newness, to be a cruel and unusual punishment. In Weems v. United States (1910), the Court struck down a sentencing law in the Philippines (then administered by the United States) while acknowledging that “what constitutes a cruel and unusual punishment has not been exactly decided” because “no case has occurred in this court which has called for an exhaustive definition.”

Wilkerson, Kemmler, and Weems all focused on laws enacted by legislatures or sentences handed down by courts. Thus, when prisoners began to bring Eighth Amendment suits, it was unclear how federal courts would apply the amendment to what happened after a convict was sentenced and incarcerated. Early Eighth Amendment cases brought by prisoners involved the use of allegedly excessive force by corrections officers or specific prison policies alleged to create unconstitutional conditions. In Talley v. Stephens (1965), for example, Chief Judge Jesse Smith Henley of the U.S. District Court for the Eastern District of Arkansas evaluated a prison’s use of corporal punishment in the form of whipping with a leather strap. While corporal punishment was not unconstitutional per se, the prison’s use of the strap was constitutionally defective because it lacked appropriate safeguards, such as a clear standard providing the precise punishments to be given for particular infractions. Judge Henley enjoined the prison from use of the strap until prison officials had come up with a court-approved plan to reform the practice.

Three years later, however, the U.S. Court of Appeals for the Eighth Circuit banned use of the strap entirely in Jackson v. Bishop (1968). The court concluded that “the use of the strap in the penitentiaries of Arkansas is punishment which, in this last third of the 20^th century, runs afoul of the Eighth Amendment; that the strap’s use, irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess.” The Eighth Circuit also noted that it drew no distinction between punishment for a crime prescribed by statute and punishment imposed for prison disciplinary purposes. This was a significant point; if federal courts had declined to classify prison discipline as “punishment” for Eighth Amendment purposes, most prisoners’ claims would have been foreclosed.

The first case to address a state’s entire prison system as a constitutional violation was Holt v. Sarver (1970), in which eight separate prisoner class actions were consolidated. The claims in Holt were wide-ranging, covering aspects of prison life such as open barracks in which men were vulnerable to assault from other prisoners, unhygienic conditions in isolation cells, and the lack of any meaningful opportunities for rehabilitation. Judge Henley, by this point a veteran of hearing Arkansas prison cases, held that a punishment did not have to be imposed on a specific individual to be considered cruel and unusual. On the contrary, confinement itself could constitute such a punishment when “characterized by conditions and practices so bad as to be shocking to the conscience of reasonably civilized people.” Assessing the issues raised by the prisoners in the aggregate rather than ruling on each in isolation, Henley found that Arkansas prison conditions violated the Eighth Amendment.

One example of a condition bearing strongly on Henley’s ruling was that Arkansas employed few paid prison guards, instead relying to a great extent on inmate “trusties” to run the prison. Such a system was “universally condemned by penologists,” was prone to egregious abuse, and put inmates’ safety at undue risk. Recognizing that remedying the state’s prison conditions would be a difficult and complicated task, Henley ordered state officials to come up with a detailed plan for the court’s approval. In doing so, however, the judge set forth several specific “minimum requirements” for the further confinement of prisoners. For example, he warned that “trusties, whether guards or not, are going to have to be stripped of their authority over the lives and living conditions of other convicts.”

Several years later, the federal judiciary found conditions in Alabama’s prison system so harsh as to constitute cruel and unusual punishment. Judge Frank Minis Johnson of the U.S. District Court for the Middle District of Alabama—well known for his rulings in favor of African American civil rights—imposed a detailed remedial decree on state officials, outlining how they were to rectify unconstitutional conditions. The defendants appealed on the grounds that Judge Johnson had exceeded his authority in telling them how to perform their duties. In Newman v. Alabama (1977), the U.S. Court of Appeals for the Fifth Circuit upheld most of Johnson’s decree. “At the outset,” the court wrote, “we hold that the steps taken by the District Court to ensure reasonably adequate food, clothing, shelter, sanitation, necessary medical attention and personal safety for the prisoners were within its sound discretion and will not be disturbed on appeal.” The court acknowledged, however, that judicial power to shape institutional reform was not unlimited. A few aspects of Johnson’s order were overturned for intruding on prison officials’ power, including a provision that a committee be empowered to take “any action” to ensure the state’s compliance.  

Between the 1970s and the 1990s, the Supreme Court issued several decisions that hinged on whether and to what degree defendants must have intended to cause or ignore the risk of harm to inmates. Estelle v. Gamble (1976) was notable for the Court’s recognition of prisoners’ right to medical care, but the opinion specified that only “deliberate indifference to serious medical needs of prisoners,” rather than negligence or accident, could be the basis for an Eighth Amendment claim. On a similar note, the Court held in Whitley v. Albers (1986) that a prisoner shot by guards during a riot would have to prove the unnecessary and deliberate infliction of pain rather than an injury resulting from the good faith use of force needed to restore order. Wilson v. Seiter (1991) established that the “deliberate indifference” standard established for medical care in Estelle applied to cases involving general prison conditions as well; such conditions did not constitute “punishment” for Eighth Amendment purposes without such a showing. Lastly, the Court clarified in Farmer v. Brennan (1994) that the standard for “deliberate indifference” cases was subjective, not objective. Defendants in cases regarding conditions of confinement could be liable for ignoring risks of harm to prisoners of which they were aware but not risks of which they should have been aware but were not.

In the last half of the twentieth century, the federal courts assumed an expanded role in the protection of prisoners’ civil rights, particularly with respect to the Eighth Amendment right to be spared cruel and unusual punishment. U.S. District Judges Jessie Smith Henley and Frank Minis Johnson wrote notable opinions excoriating two states’ prison systems and drawing public attention to the unacceptable conditions under which many prisoners lived. The expansion of Eighth Amendment rights, combined with the emergence of institutional litigation, resulted in judicially ordered reforms in prisons across the United States. In 1995, seeking to reduce frivolous litigation and lighten federal court caseloads, Congress enacted the Prison Litigation Reform Act, which required that inmates exhaust all administrative remedies before filing suits over prison conditions. The number of prisoner suits filed in federal court declined significantly in the wake of the Act.

Jake Kobrick, Associate Historian
For more information, contact history@fjc.gov

Related FJC Resources:
See the entries for Judges Jesse Smith Henley and Frank Minis Johnson in the Biographical Directory of Article III Federal Judges, 1789–present.

Read about Monroe v. Pape (1961), in which the Supreme Court expanded the availability of civil claims against state officials under 42 U.S.C. § 1983.

Further Reading:
“The Role of the Eighth Amendment in Prison Reform.” University of Chicago Law Review 38, no. 3 (Spring 1971): 647–664.

Amend, Andrew W. “Giving Precise Content to the Eighth Amendment: An Assessment of the Remedial Provisions of the Prison Litigation Reform Act.” Columbia Law Review 108, no. 1 (January 2008): 143–181.

Dolovich, Sharon. “Cruelty, Prison Conditions, and the Eighth Amendment.” New York University Law Review 84, no. 4 (October 2009): 881–979.

Driver, Justin, and Emma Kaufman. “The Incoherence of Prison Law.” Harvard Law Review 135, no. 2 (December 2021): 515­–584.

Fair, Daryl R. “The Lower Federal Courts as Constitution-Makers: The Case of Prison Conditions.” American Journal of Criminal Law 7, no. 2 (July 1979): 119–140.

Resnik, Judith. “The Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson.” Alabama Law Review 71, no. 3 (2020): 665–722.

Rippon, Michelle, and Robert A. Hassell. “Women, Prison, and the Eighth Amendment.” North Carolina Central Law Journal 12, no. 2 (Spring 1981): 434–460.

Schlanger, Margo. “The Constitutional Law of Incarceration, Reconfigured.” Cornell Law Review 103, no. 2 (January 2018): 357–436.

Yackle, Larry W. Reform and Regret: The Story of Federal Judicial Involvement in the Alabama Prison System. New York: Oxford University Press, 1989.

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.