Professor Judith Resnik Explores How Prisons Became a Problem for Democracy

Can prisons escape their ties to plantations and concentration camps? In her new book, “Impermissible Punishments: How Prison Became a Problem for Democracy” (University of Chicago Press), Arthur Liman Professor of Law Judith Resnik explores the history of punishment inside prisons and the rules that organize prisons. Resnik charts the invention of the corrections profession, which called for decent conditions while imposing radical restrictions on human movement as if doing so was normal. She weaves together the stories of people who debated how to punish and the stories of people living under the regimes that resulted.

The book begins with a reproduction of the handwritten petition that Winston Talley, imprisoned in Arkansas, smuggled out of prison and succeeded in getting filed in the federal court for the Eastern District of Arkansas. He asked the judge to order an end to “flogging,” the word he used for whipping. Arkansas used whips to “discipline” prisoners who had not picked the amount of okra, cucumbers, or cotton prescribed. 

The judge appointed preeminent lawyers to represent Talley and his co-plaintiffs and held that prisoners had rights of access to court, but that Arkansas officials were permitted to whip if a decision was made on the merits of the allegations of misbehavior. They could also do so if no more than 10 lashes at a time were applied. After other prisoners challenged the practice, more lawyers were appointed, and a three-day trial was held. Federal judges again licensed whipping, subject to procedural requirements. In 1968, Judge Harry Blackmun, writing for the panel of judges on the 8th Circuit before he was on the U.S. Supreme Court, held that whipping was “cruel and unusual punishment.” 

“Impermissible Punishments” excavates the first-ever international rules aiming to improve the treatment of prisoners, which the League of Nations adopted in 1934 as the Nazis rose to power. Resnik’s transatlantic account documents the impact of World War II, the United Nations, the Civil Rights movement, and pioneering prisoners who insisted law protected their dignity as individuals. She maps the results, including a trial in the United States about the constitutionality of whipping, which was the preferred form of what Arkansas called “discipline” in the 1960s. 

The book traces the constitutional challenges to hyper-crowded cells, filth, violence, and profound isolation, as well as the cross-border expansion of the prison industry, waves of abolition efforts, and the impact of legal precepts rejecting “excessive,” “cruel and unusual,” and “degrading” sanctions. Exploring the interdependency of people in and out of prisons, “Impermissible Punishments” argues that governments committed to equality cannot set out to ruin people and therefore many contemporary forms of punishment need to end. 

In conjunction with the book’s publication and to mark contemporary debates about the form punishment should take, Yale Law School’s Oscar M. Ruebhausen Fund is supporting a conference, “Punishment at the Crossroads,” on Nov. 6 and 7. The event is co-sponsored by the editors of the international and interdisciplinary journal, Punishment & Society.

Resnik is the founding director of the Arthur Liman Center for Public Interest Law. She teaches courses on federalism, procedure, courts, prisons, equality, and citizenship. Her scholarship focuses on the relationship of democratic values to government services such as courts, prisons, and post offices; the role of collective redress and class actions; contemporary conflicts over privatization; the relationships of states to citizens and noncitizens; the interaction among federal, state, and tribal courts and the forms and norms of federalism; practices of punishment; and equality and gender.

Her other books include “Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms” (with Dennis Curtis), “Federal Courts Stories” (co-edited with Vicki C. Jackson, “Migrations and Mobilities: Citizenship, Borders, and Gender” (co-edited with Seyla Benhabib), and “Courts and Their Alternatives” (with Owen Fiss). In 2014, Resnik was the co-editor (with Linda Greenhouse) of the Daedalus volume “The Invention of Courts.”