An interview explores a book examining governmental obligations to detainees, focusing on a historical case in Arkansas where prisoners were subjected to whipping for not meeting labor quotas. The discussion delves into the author's arguments against modern punishment practices and the conditions faced by incarcerated individuals.
Emily Bazelon: In your book, you ask a central question: What do governments committed to equality owe to the people they detain? And you’re also making an argument about why, in your view, many contemporary forms of punishment should end.
I wanted to start with a central incident in your book, and I think inspiration for writing this book, which is a remarkable trial that took place in Arkansas in the 1960s. And it was a challenge to the practice of whipping that a few prisoners in Arkansas brought on their own behalf. Tell us the story and why it grabbed you so much. Judith Resnik: As far as I know, Winston Talley was a very ordinary guy with low-level crimes, and he asked a federal judge smuggling his papers out of the prison to stop the whip. And I was taken aback because I didn’t know that prisoners were whipped and I was yet taken aback twice by the opinion. One part of it is that a federal judge in Arkansas appointed the best lawyers in the state—the leaders of the bar—to represent him. And the judge said, “Yes, you have a right to be in court.” And then the judge said, “But no, prisoners can be whipped by state officials for not picking enough okra or cucumbers or whatever, as long as it wasn’t arbitrary and limited to 10 lashes because that wasn’t cruel and unusual punishment.”So basically, the facts here are that prisoners are being routinely whipped for not doing farm work, which they’re being assigned to do, right? What kind of work was this? Farm work sounds way too cheerful. These people were made to be in the fields with sweat labor. Arkansas had no budget for its prisons. It was trying to make, quote, “profits” off the prisoners, and they were in degrading disgusting conditions, picking corn and okra for 12, 14 hours a day and whipped—if they didn’t come back with whatever the right poundage was at the time or for other things—and beaten. But the important part is that this is the turning point. So, first of all, Talley brings his case. The judge issues what became called “Talley Rules” to limit whipping a little bit. And to be clear for this judge, he may have thought that he was going to stop whipping because it was a political question. And the Governor Faubus, a famous Arkansas governor who did not like federal law at all and fought desegregation, said he was against it.The judge thought, “I’ll issue this opinion, I’ll up the stakes by putting a lot of rules around it and they’ll probably stop.” Instead, they didn’t stop. And so new prisoners brought another case, William Jackson, and then you’ve got your three-day trial. You can read the transcript about how people felt about whipping, how people whip their children and the like. And then two more federal judges in Arkansas who had appointed another set of great lawyers said, “It’s okay to whip.”And then in ‘68, Harry Blackman, then on the court of appeals before he goes to the Supreme Court, writes an opinion for the appellate court and says, “You can’t whip,” and that’s impermissible, but it’s not a paragraph. It’s a long opinion with nine reasons.And he’s the one who says, “How can you tell the difference between impermissible and permissible?” Because he is very clear in private correspondence. He’s not trying to rule out a lot of other things that were disciplined, including solitary confinement and a whole bunch else. So, the point in the book is to look at the first time in US history when a kind of punishment that prison officials champion as the one they need for something they call “discipline” gets categorically ruled out, but not easily. There’s a risk to say, “Ah, that’s Arkansas, 1960s south plantation.” Well, England in the 1960s had people being whipped as sentences. They called it birching, they only stopped it in the ‘60s. And across the world, physical violence has been used against prisoners.Please, Lord, Do Not Make Me Roll Hard for Jimmy KimmelWhat’s important about this is that in this instance, Judge Blackman does draw this line, but it’s hard to get to that result. And also, it’s limited, right? Because all these other forms of onerous punishment that can really, we know now amount to forms of torture, continue to exist, right? I sometimes feel like with this story, the amazing thing is that they let whipping happen in prison. And then I think, well, it’s amazing they stopped it since they’ve allowed so much else.My hope is to keep the shock value—the word “amazing” be felt throughout the book. Prison is incredibly bizarre. The micromanagement, and let’s just talk about solitary confinement for a moment. That means, if we’re both sitting in rooms, being in conversation in which there are windows and we can walk out of them, and we put people in rooms in which they can’t walk out—for decades in some instances in solitary confinement—and they can’t see more than eight feet or move. So, the hope is that, just as we see that whipping as bizarre, “how could anybody do that and say it was okay and call it discipline?” We also have the ability to say that the thing that we made up called prison—which is not natural but invented by people over several hundred years with an enormous amount of debate and consternation—isn’t natural either and doesn’t have to be the way that it is now.
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