Professor Judith Resnik’s New Book Featured on Podcast with Melissa Murray ’02

The podcast Strict Scrutiny, co-hosted by NYU Law Professor Melissa Murray ‘02, featured Liman Center Founding Director Judith Resnik’s book, “Impermissible Punishments: How Prison Became a Problem for Democracy” in June. Strict Scrutiny is a podcast about the United States Supreme Court and the legal culture that surrounds it. Murray, who is also a member of the Liman Center’s Advisory Board, is one of three constitutional law professors who hosts the podcast.

Resnik’s book explores the history of punishment, 300 years of its justifications, and how human rights and civil rights movements required revisiting punishment practices. “What does it mean to be a rights holder in prison? And what are the limits?” Courts, legislatures, and all of us have to grapple with these questions.

LISTEN: Strict Scrutiny (Resnik segment begins at 56:35)

The book begins with the hand-written petition that Winston Talley, incarcerated in Arkansas, filed in 1965. He asked the federal district court to “stop the Whipp,” which prison officials used as a “disciplinary” measure when people did not pick enough okra, cucumbers, or cotton, and if prisoners were otherwise seen as not complying with whatever they were told to do. Talley invoked the Eighth Amendment, which prohibits “cruel and unusual” punishment. As Resnik explained, he insisted “that he was a rights bearing member of this polity.” Talley was offering a new theory of limits on state power. While he could be punished, he could not be punished by whipping. 

In “Impermissible Punishments,” Resnik proposes an “anti-ruination principle, this idea that impermissible punishments are those that ruin the person.” Murray explained that was not just “physical ruin, but the dignity of the person, the mind and body and spirit of the person.” Resnik added that, while some disciplinary action may be necessary, “you cannot take people down and out.” 

In conversation with Resnik on the podcast, Murray suggested that the anti-ruination concept can be found in U.S. constitutional law. 

“Shards and glimmers of the anti-ruination principle are evident throughout constitutional law and maybe even in just the whole idea of limited government,” Murray said. 

Resnik responded that “prison is the place where you have sovereignty encompassing you with potentially terrifying power.” 

Resnik and Murray discussed how, during the last 18 months, the federal government has been asserting its authority to detain and deport immigrants, as well as to enter into wars and kill individuals on the high seas. 

“Have we moved away from an anti-ruination principle, not just in the context of the Eighth Amendment, but in the context of our government and what we understand to be limited government?” Murray asked. “Many people think we are on the precipice of no longer being a democracy. How does our approach to prisons reflect that precarity?”

Resnik responded that there has been an idea that “whatever you do to prisoners is different because they are prisoners.” But “we are watching a federal government being willing to order the murders of people in boats offshore, to grab people off streets.” She said it was important to “reject those forms of treatment” of people “in or outside.” She continued that we need to understand prisons as part of society, not removed from it. 

Resnik pointed out that some social welfare services in Europe provide more for everyone — such as education and health. Therefore, when prisoners are provided with those services, they are not getting “more” than others who also have needs, she said. Her goal in writing the book was to underscore the need for change. 

“I am worried about not only the ruin of people and their communities, but also of the body politic,” Resnik said.  

Murray is the Frederick I. and Grace Stokes Professor of Law and faculty director of the Birnbaum Women’s Leadership Center at NYU Law. Resnik is the Arthur Liman Professor of Law at Yale Law School and the founding director of the Arthur Liman Center for Public Interest Law.