Hutto v. Finney Brief of Respondents

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January 1, 1978

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IN THE

SUPREME COURT OF THE UNITED STATES 
October Term., 1977

No. 76-1660

TERRELL DON HUTTO ., et al,
V Petitioners,

ROBERT
- v -

FINNEY, et al

On Writ of Certiorari to the United 
States Court of Appeals for the

Eighth Circuit

BRIEF FOR RESPONDENTS

January 1978.

PHILIP E. KAPLAN
1650 Tower Building 
Little Rock, Arkansas 72201

JACK HOLT, JR.
1100 North University 
Evergreen Place 
Little Rock, Arkansas

PHILIP E. McMATH
McMath, Leatherman & Woods, P.A 
711 West Third Street 
Little Rock, Arkansas 72201

JACK GREENBERG 
JAMES M. NABRIT III 
CHARLES STEPHEN RALSTON 
STANLEY BASS 
ERIC SCHNAPPER 
LYNN WALKER

10 Columbus Circle 
New York, New York 10019

t



<

TABLE OF CONTENTS
p . g 9 , e

Opinions Below........... .... ................... 2
Questions Presented .........    3
Constitutional and Statutory

Provisions Involved.............    4
Statement ........................     6

A. Introduction............................ 6
B. Holt I and Previous Prison Suits....... 7
C. Holt II - Litigation During 1970

and 1971..................      11
D. Holt III - Litigation in 1973 and

1974...............................  16
E. Graves v. Lockhart - 1973-1974

Proceedings.............   18
F. Finney v. Hutto - Proceedings

1975-1077................    19
Summary of Argument...............................  34
Argument .......................................... 38

I. The District Court Properly 
forbade the use of indefinite 
punitive segregation as part of
its remedy for the unconstitutional 
conditions in the punitive
facilities............................ 38

II. The District Court had the authority
to award counsel fees against the 
Department of Corrections............ 58

A. Counsel fees may be awarded against 
State officials or agencies which have
acted in bad faith........................... 58

B. The Civil Rights Attorney's Fees 
Awards Act of 1976 Authorized Awards
of Counsel Fees Against States in
Actions Under 42 U.S.C. §1983.....    72

Conclusion.....................................  88
Appendix .................   1A

i



Table of Cases

Alyeska Pipeline Service Co. v. The WildernessAlyeska Pipeline Service Co. v. The Wilderness
Society, 421 U.S. (1975) ....................  31, 33,35, 35,59,

60, 62, 72, 75
Bell v. School Board of Powhatan County, 321

F . 2d 494 (4th Cir. 1963) .................................  58
Berenyi v. Immigration Service, 385 U.S. 630 (1967) .......  60
Bitzer v. Matthews, No. 75-283, decided sub nom............. 62
Bradley v. Richmond School Board, 416 U.S. 696

(1974) ..............................................  37, 59,81,85,
86,87

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974)....  62
Chisholm v. Georgia, 2 Dali. (2 U.S.) 419 (1798) ........... 63
City of Kenosha v. Bruno, 412 U.S. 507 (1973) ..............  76
Class v. Norton, 505 F.2d 123 (2d Cir. 1974) ...............  62
Coker v. Georgia, 53 L. Ed. 2d 982 (1977)   41
Costello v. Wainwright, 51 L. Ed. 2d 372 (1977)   39,44
Courtney v. Bishop, 409 F.2d 1184 (8th Cir. 1969)   8,9
Dick Press Guard Mfg. Co. v. Bowen, 229 F.193 (N.D.

N.Y.), aff'd, 229 F.575 (2d Cir.) cert, denied,
241 U.S. 671 (1915) ....................................... 75

Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) ...............  58
Eagle Mfg. Co. v. Miller, 41 F. 351 (S.D. Iowa 1890) ......  75
Edelman v. Jordan, 415 U.S. 651 (1974) ..............  31, 61, 62,64,

65,66,67,70, 
71, 79, 84

Employees v. Missouri Public Health Dept., 411 U.S.
279 (1973) ............................................  63,83,84

Estelle v. Gamble, 50 L. Ed. 2d 251 (1977) ............. 34, 38,39,
40,43

Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) ......... 59
Fairmont Creamery Company v. State of Minnesota, 275

U.S. 70 (1927) ....................................  33,35, 65, 79

Pages

ii



c t '

Table of Cases (Continued)

Pages

Finney v. Arkansas Board of Corrections, 505
F . 2d 194 (8th Cir. 1974)   2,6

Finney v. Hutto, 548 F .2d 740 (8th Cir. 1977)   32
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark.

1976) .................................................  Passim
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ......  33,36,62,78

79,81,82,84
Flanders v. Tweed, 15 Wall (82 U.S.) 450 (1873) ......  70
Fleischman Distilling Corp. v. Maier Brewing Co.,

388 U.S. 714 (1967) ..................................  68
Ford Motor Co. v. Department of Treasury, 323 U.S.

459 (1945) ............................................  63
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.

1974) .................................................  87
Goldberg v. Kelly, 397 U.S. 254 (1970) ................  64
Graham v. Richardson, 403 U.S. 365 (1971) .............  64
Gates v. Collier, 501 F .2d 1291 (5th Cir. 1974) 40,41,43,45,54
Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) .....  60
Graves v. Lockhart, (E.D. Ark.) Civil Nos. PB-

74-C-81 ..............................................  2,24,26
Green v. School Board of New Kent County, 3S1 U.S.

430 (1968)   48
Gregg v. Georgia, 428 U.S. 153 (1976) ............ 38,41,42,54
Ex parte Young, 209 U.S. 123 (1908) .................  15,63,67
Grimes v. Chrysler Motors Corp., __ F.2d __

(2d Cir. 1977)   75
Hagood v. Southern, 117 U.S. 52 (1886) . . 7 ............ 63
Hall v. Cole, 412 U.S. 1 (1973) ....................... 58
Hallmark Clinic v. North Carolina Dept, of Human

Resources, 519 F.2d 1315 (4th Cir. 1975) ........... 62
Hans v. Louisiana, 134 U.S. 1 (1890)   63

iii



%

Table of Cases (Continued)

Papes

Kankel v..Chicago, etc., R.R., 284 U.S. 444 (1932).. 65
Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973) , 

reversed in part sub nom........................... 2,16
Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark.

1969) .............................................. 2,9
Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), 

affirmed and remanded, 442 F .2d 304 (8th Cir.
1971) .............................................. 2,11

Holt v. Sarver, 442 F .2d 304 (8th Cir. 1971) ...... 15
Illinois v. Allen, 397 U.S. 337 (1970) ............. 59
Imber v. Pachtman, 424 U.S. 409 (1976) ............. 83
Ingraham v. Wright, 51 L.Ed.2d 711 (1977) .......... 38,43
Jackson v. Bishop, 268 F. Supp. 804 (E.D. Ark.

1967) .............................................. 7,8,9
Jordan v. Fusari, 496 F.2d 646 (2d Cir. 1974) ..... 62
Jordan v. Gilligan, 500 F.2d 701 (6th Cir.

1974) .............................................. 62
Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975) ..... 29,30
LaReau v. MacDougal, 473 F .2d 974 (2d Cir. 1972)

cert, den., 414 U.S. 878 (1973) .................. 54
Matter v. Yamashita, 327 U.S. 1 1945) ............. 60
Maynard v. Wooley, __ F. Supp. __ (D.N.N.Y. 1977)... 75
McEnteggart v. Cataldo, 451 F.2d 1109 91st Cir.

1971) .............................................. 59
Milburn v. Huecker, 500 F .2d 1279 (5th Cir. 1974) ... 62
Milliken v. Bradley, 53 L.Ed.2d 745 (1977) ___  35,53,64,70,76
Monnell v. Department of Social Services

No. 75-1914 ........................................ 76
Monroe v. Pape, 365 U.S. 167 (1961) ................  76
Named Individual Member v. Texas Highway Dept.,

496 F . 2d 1017 (5th Cir. 1974) ....................  62
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977). .40,42,44,56,82
Newman v. Piggie Park Enterprises, 390 U.S. 400

1968) .............................................. 58,59

IV



Ocean Accident & Guarantee Corp. v. Felgemaker, 143
F . 2d 950 (6th Cir. 1944) .................................  75

Pierson v. Ray, 386 U.S. 547 (1967) ......................... 83
Pittman v. Arkansas Department of Corrections,

PB-72-C-15 ................................................  76
Procunier v. Martinez, 416 U.S. 396 (1974) .................  40
F. D. Rich v. Industrial Lumber Co., 417 U.S. 116

(1974)  58,59
Richardson v. Communications Workers of America, 530

F . 2d 126 (8th Cir. 1976)   58
Robinson v. California, 370 U.S. 660 (1962) ......... 38,41,53,82
Rolax v. Atlantic Coast Line R. Co., 186, F.2d 473

(4th Cir. 1951)   58
Runyon v. McCrary, 427 U.S. 160 (1976) ................  58, 60,72
Russell v. Arkansas Department of Corrections,

PB-72-C-15 5 ...............................................  76
Scheuer v. Rhodes, 416 U.S.232 (1974) ....................  76,83
Service v. Wilderness Society, 421 U.S. 240 (1975) ......... 70
Skehan v. Board of Trustees, 503 F.2d 31 (3d Cir. 1974) ....  62
Sims v. Amos, 340 F. Supp. 691 (N.D. Ala. 1972) ............59, 61
Sostre v. McGinnis, 442 F.2d 178 (1971) ............ 40,43,49,54
Souffront v. Compagnie des Suceries, 217 U.S.

475 (1910) ...........................................  36,75, 76
Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975)........... 62
Stanton v. Bond, No. 75-1413 ................................ 62
Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965)......  7,8
Taylor v. Perini, 501 F.2d 899 (6th Cir. 1974) ............. 62
Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) ..............  62
Trop v. Dulles, 356 U.S. 86 (1958) .......................... 38
Trustees v. Greenough, 105 U.S. 527 (1882) .................  70

*

Table of Cases (Continued)
Pages

v



Table of Cases (Continued)

Universal Oil Products Co. v. Root Refining Co.,
328 U.S. 575 (1946) ...............................  59

Vaughn v. Atkinson, 369 U.S. 527 (1962)   58,59
Weems v. United States, 217 U.S. 349 (1910)......... 58
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977).. 44
Wolff v. McDonnell, 418 U.S. 539 (1974)   21,52
Wood v. Strickland, 420 U.S. 308 (1975)   83
Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y. 1970) 

aff'd. 460 F .2d 126 (2d Cir. 1972), cert, den.
409 U.S. 885 (1972)................................  42, 52

Pages

- vi -



Constitutional Provisions

Eighth Amendment .......................................... 34,38
Eleventh Amendment ........................................ 2,35,61
Fourteenth Amendment ...................................... 36

Legislative Materials

H.R. 7826, 94th Cong. Rec., 1st Sess.....................  73
H.R. 7828, 94th Cong. Rec., 1st Sess.....................  73
H.R. 7968, 94th Cong. Rec., 1st Sess.....................  73
H.R. 7969, 94th Cong. Rec., 1st Sess.....................  73
H.R. 8220, 94th Cong. Rec., 1st Sess.....................  73
H.R. 8221, 94th Cong. Rec., 1st Sess.....................  73
H.R. 8742, 94th Cong. Rec., 1st Sess.....................  73
H.R. 8743, 94th Cong. Rec., 1st Sess.....................  73
H.R. 8821, 94th Cong. Rec., 1st Sess.....................  73
H.R. 9552, 94th Cong. Rec., 1st Sess.....................  73
Hearings on Legal Fees Before the Sub-committee on 

Representation of Citizen Interests of the Senate 
Judiciary Committee, 93rd Cong., 1st Sess.
(1973)   78

Hearings Before the Sub-committee on Courts, Civil
Liberties and the Administration of Justice of the 
House Committee on the Judiciary, 94th Cong.,
1st Sess. (1975)   78

S. Rep. No. 94-1011 ...............................  73, 77,79,80,81
H. R. Rep. No. 94-1558 ............................  73, 78,80,81
112 Cong. Rec........................................ 74,78,79,80,81,86

Pages

- vii -



Other Authorities

American Correctional Association, Manual of
Correctional Standards (1972) ....................  39,45,46,49

American Bar Association, Tentative Draft of 
Standards Relating to the Legal Status of
Prisoners (1977)   39,49

American Law Institute, Model Penal Code
(Proposed Official Draft)(1962)   49

Fourth United Nations Congress on Prevention 
of Crime and Treatment of Offenders, Standard 
Minimum Rules for the Treatment of Prisoners
(1955)   39

McCormick on Damages (1935)   70
Model Act for the Protection of Rights of

Prisoners (1972)   45
Model Penal Code ....................................  39
2A Moore's Federal Practice 1(12.13 .................  76
National Advisory Commission on Criminal Justice

Standards and Goals, Corrections (1973)   39,49
National Council on Crime and Delinquency,

Model Act for Protection of Rights of
Prisoners (1972)   39

National Sheriff's Association, vanual on Jail
Administration (1970)   39

Goodhart, Costs, 38 Yale Law Journal 849 (1929)....  70

Rules

Federal Rules of Appellate Procedure, Rule 7 .......  66
Federal Rules of Appellate Procedure, Rule 38 ......  66
Federal Rules of Appellate Procedure, Rule 39 ......  66
Federal Rules of Civil Procedure, Rule 30(g)   66
Federal Rules of Civil Procedure, Rule 37 (a) (4)..... 66
Federal Rules of Civil Procedure, Rule 41(d) ........  66

Pages

- viii -



Rules (Continued)

Federal Rules of Civil Procedure, Rule 43(f) ......... 66
Federal Rules of Civil Procedure, Rule 54 ........... 66
Federal Rules of Civil Procedure, Rule 55(b)(1) .......  66
Federal Rules of Civil Procedure, Rule 56 (g)..........  66
Federal Rules of Civil Procedure, Rule 65(c) ..........  66
Federal Rules of Civil Procedure, Rule 68 ............  66
Federal Rules of Criminal Procedure, Rule 33(a)(3).... 66

Rules of the Supreme Court, Rule 14 ..................  66
Rules of the Supreme Court, Rule 18 ..................  66
Rules of the Supreme Court, Rule 36 (3)   66
Rules of the Supreme Court, Rule 57 ................... 66
Rules of the Supreme Court, Rule 60 ..................  66

Pages

- ix -



Page
Statutes and Treaties 
5 U.S.C. § 552(a)2E . 
7 U.S1.C. § 210 (f) . . . 
7 U.S.C. § 499g(b) ..
15 U.S.C. § 
15 U.S.C. § 
15 U.S.C. § 
15 U.S.C. § 
15 U.S.C. §
17 U.S.C. §
18 U.S.C. § 
20 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
28 U.S.C. § 
33 U.S.C. § 
33 U.S.C. § 
42 U.S.C. § 
42 U.S.C. § 
42 U.S.C. § 
42 U.S.C. § 
42 U.S.C. § 
42 U.S.C. § 
42 U.S.C. §
45 U.S.C. §
46 U.S.C. §
47 U.S.C. § 
49 U.S.C. §

15 ...___
72 ......
77k(e) ...
78i (e) . . „
78r(a) ...
116 .....
1964(c) ..
1617 ....
1 3 3 1  .....
1332 ....
1343 (3) ..
1446 ....
1911 ....
1923 ....
2101(f) ..
2103 ___ _
1365(d) ..
141(g) (4) 
185 7h-2(d)
1983 ....
1988 ..... 
2000a-3 (b) 
2000e-5 .. 
2000e-5 (k) 
4911(d) ..
153(p) ...
1227 ....
206 .....
8 ........

69
69
69
69
69
69
69
69
69
69

69, 81
66 
66 
15 
66 
66

68, 69 
66 
66 
69 
69 
69

15, 76, 84
32, 72 

69 
81 
69 
69 
69 
69 
69 
69

- x -



Page

49 U.S.C. § 16(2) ......................
49 U.S.C. § 908(b) .....................

1 Stat. 73 ..........................................  65

1 Stat. 93 65/ 68
10 Stat. 161 (1853) ............................. ... 68

Civil Rights Act of 1964 ...........................  82
Civil Rights Attorney's Fees Awards Act

of 1976 ........ .................. 3, 32, 58, 62, 72, 77

Statute of Gloucester, 1278, 6 Edw. 1, c 1 .
2A Ark. Stat. Anno § 12-712 ................
4A Ark. Stat. Ann. § 46-116 ................
4A Ark. Stat. Anno. § 46-1201 (1975 Supp.) „
Act 543 of the Arkansas Acts of 1977

approved March 18, 1977 .............
New York Corrections Law § 137 (1977 Supp.)
6 United States Treaties 3317 (1949) ......

68
77
42
42

4, 35, 67, 68
42

39, 49

xx



CITATIONS TO OPINIONS BELOW
The opinions of the courts below are as follows:
1. Memorandum Opinion of June 20, 1969; Holt v .

Sarver, 300 F.Supp. 825 (E.D. Ark. 1969) hereinafter referred
* /to as HOLT I. (Appendix p. 22)—

2. Memorandum Opinion of February 18, 1970; Holt v.
Sarver, 309 F.Supp. 362 (E.D. Ark. 1970) (A. 34) affirmed and
remanded 442 F.2d 304 (8th Cir. 1971) (A. 67) hereinafter
referred to as HOLT II.

3. Memorandum Opinion of August 13, 1973; Holt v.
Hutto, 363 F.Supp. 194 (E.D. Ark. 1973) (A. 84), reversed sub
nom. Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th 
Cir. 1974) (A. 112) hereinafter referred as HOLT III.

4. Memorandum Opinion of March 19, 1976, Finney v.
Hutto, 410 F.Supp. 251 (E.D. Ark. 1976) (A. 141); Clarifying
Memorandum Opinion of April 2, 1976, unreported (A. 188); 
affirmed 548 F .2d 740 (8th Cir. 1977) (A. 195).

5. The Memorandum Opinion of September 29, 1977 in 
Graves v. Lockhart, E.D. Ark. Civil Nos. PB-74-C-81 and PB-74-C- 
107, is unreported (A. 198).

*/ Appendix citations (hereinafter A. ____) are to the
Appendix .of Opinions, Decrees, Orders, and Pleadings prepared 
by the Respondents and filed with the Court.

2



QUESTIONS PRESENTED

1. Did the District Court exceed its authority in 
forbidding the use of indefinite punitive segregation as part 
of its remedy for the unconstitutional conditions in the 
punitive facilities?

2 Does the Eleventh Amendment preclude the award of
counsel fees from state funds where the unsuccessful state 
defendants in a federal action have acted in bad faith, 
vexatiously, wantonly, or for oppressive reason?

3. Does the Civil Rights Attorney's Fees Awards Act of 
1976 authorize awards of counsel fees against state agencies in 
actions under 42 U.S.C. §1983?

3



CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

In addition to the statutes and constitutional provisions 
cited in the brief for petitionersf the case also involves Act 
543 of the Arkansas Acts of 1977 approved March 18, 1977. Act 
543 provides as follows

ACT 543
"AN ACT Authorizing the State of Arkansas to Pay 

Actual Damages Adjudged Under Certain Cir­
cumstances Against Officers or Employees of 
Arkansas State Government, or Against the 
Estate of Such an Officer or Employee; Defin­
ing the Extent of Applicability of the Act: 
and for Other Purposes.

Be it Enacted by the General Assembly of the State 
of Arkansas
SECTION 1. The State of Arkansas shall pay 

actual, but not punitive, damages adjudged by a 
state or federal court, or entered by such a court 
as a result of a compromise settlement approved and 
recommended by the Attorney General, against officers 
or employees of the State of Arkansas, or against 
the estate of such an officer or employee, based on 
an act or omission by the officer or employee while 
acting without malice and in good faith within the 
course and scope of his employment and in the per­
formance of his official duties.

SECTION 2. Upon the recommendation of the 
Attorney General, the State of Arkansas shall 
have authority to pay damages based on an act or 
omission by an officer or employee of the State of 
Arkansas while acting without malice and in good 
faith within the course and scope of his employment 
and in the performance of his official duties, 
where the amount of damages is determined by 
negotiated settlement before or after an action 
had been commenced.

SECTION 3. Damages payable under this Act 
shall be reduced to the extent that the officer 
or employee has been indemnified or is entitled 
to indemnification under any contract or insurance.

- 4 -

i



SECTION 4. A party desiring to make a claim for 
indemnification under this Act shall notify the 
Attorney General of the filing of a complaint 
in any court or the making of any other form of 
demand for damages promptly after it is filed or 
made and permit the Attorney General to participate 
in all trial or settlement negotiations or proceed­
ings regarding the complaint or demand. Compliance 
with all requirements of this Section shall be 
prerequisite to payment of any claim under this 
Act. Nothing in this Section shall be construed 
to deny any party desiring to make a claim under 
this Act from employing legal counsel of his 
choosing to defend any lawsuit or other demand 
for damages.

SECTION 5. The Arkansas State Claims Commis­
sion shall have jurisdiction over all claims 
for indemnification based on a judgment or nego­
tiated settlement in conformity with Sections 1 
and 2, and procedings for the recovery of such 
claims, and the payment of such claims shall 
be governed by the law governing proceedings before 
the State Claims Commission and payment of claims 
allowed by the Commission.

SECTION 6. Elected state officials and 
members of commissions boards, or other govern­
ing bodies of agencies are officers of the State 
of Arkansas for the purpose of this Act.

SECTION 7 All laws and parts of laws in 
conflict with this Act are hereby repealed.

SECTION 8. If any provision of this Act 
or the application thereof to any person or circum­
stances is held invalid, such invalidity shall 
not affect other provisions or applications of 
this Act which can be given effect without the 
invalid provision or application, and to this 
end the provisions of this Act are declared to 
be severable.

SECTION 9. EMERGENCY. It is hereby found and 
determined by the General Assembly that a number of 
State officers and employees are being made defen­
dants in lawsuits seeking damages for their acts or 
omissions in the performance of their official 
duties; that in many instances such lawsuits are 
filed against the estates of such officers or 
employees; and that it is essential that the State 
of Arkansas offer protection for its officers 
or employees against personal liability for perform­
ing their official duties, and that the immediate 
passage of this Act is necessary to accomplish this 
purpose. Therefore, an emergency is hereby declared 
to exist and this Act being necessary for the 
immediate preservation of the public peace health 
and safety shall be in full force and effect from 
and after its passage and approved ."

APPROVED: March 18, 1977.

- 5 -

l



STATEMENT
A. Introduction

This is a consolidated group of cases in which prisoners
confined in the Arkansas State Prison system have complained
that conditions in the prisons violate their rights under
the Fourteenth Amendment. The case has been pending since 1969
and the decisions of the District Court - Circuit Court Judge
J. Smith Henley (formerly district judge) sitting by special
designation —  have been reviewed by the Court of Appeals for

1/the Eighth Circuit on three occasions. The present peti­
tion seeks review of two rulings contained in the District 
Court's Third Supplemental Decree dated March 19, 1976 which 
were affirmed on appeal. The first ruling complained of was 
the District Court's decision limiting the amount of time 
prisoners may be confined in punitive isolation cells at 
Cummins and Tucker Prisons to a period of thirty days for a 
single offense. This 30-day limitation was one of a number of 
rulings ordering changes of rules and conditions in the puni­
tive cells which were designed to comply with a prior mandate 
of the Eighth Circuit, which had in 1974 directed the District 
Court to formulate a remedy to "ensure that prisoners placed in 
punitive solitary confinement are not deprived of basic necessi­
ties including light, heat, ventilation, sanitation, clothing 
and a proper diet." Finney v. Arkansas Board of Correction,
505 F .2d 194, 207-208 (8th Cir. 1974).

The second ruling complained of by the petitioners is the 
District Court's award of a counsel fee of $20,000.00 to be 
shared by three court-appointed attorneys (Messrs. Kaplan,

1/ The reported opinions occupy 129 pages in the official 
reports. The Eighth Circuit has called the case "seemingly 
endless." 548 F .2d at 741.

6



Holt and McMath) for services performed during the period from 
1974 to 1976. The court ordered that this fee be paid from the 
budget of the Arkansas Corrections Department.

In order that the present issues may be seen in their 
complete context, we shall review proceedings from the incep­
tion of the case in 1969, before giving a more detailed state­
ment of the proceeding which led to the Third Supplemental 
Decree. Throughout this statement of the case the facts regard­
ing conditions and circumstances in the Arkansas prison system 
as found by the District Court are set out in some detail with 
references to appropriate parts of the record. It should be 
noted that the findings of fact by the District Court through­
out this litigation have not been challenged in this Court by 
the petitioners and therefore are not at issue here. Thus, the 
legal questions presented by the decision sought to be reviewed 
must be judged in light of essentially undisputed facts.

B. Holt I and Previous Prison Suits
Litigation about prison conditions in Arkansas began in 

1965 and has continued since that time, resulting in repeated 
holdings of constitutional violations. In Talley v. Stephens, 
247 F.Supp. 683 (E.D. Ark. 1965), and in Jackson v. Bishop,
268 F. Supp. 804 (E.D. Ark. 1967), reversed in part 404 F .2d 
571 (8th Cir. 1968), the courts outlawed the whipping of 
inmates with a strap and various tortures such as the "Tucker 
Telephone" and the "teeter board." The court found that



Arkansas prisoners were being subjected to torture and "brutal
2/

and sadistic atrocities." In 1969 in Courtney v. Bishop,
409 F.2d 1185 (8th Cir. 1969), the Court held in an individual 
case that solitary confinement did not violate a prisoner's 
constitutional rights.

In each of these earlier cases plaintiffs were inmates 
who filed pro se complaints and the cases were presented by

3/
court-appointed attorneys who served without compensation.

2/ In Jackson v. Bishop, 268 F.Supp. 804, 815 (E.D. Ark.
1967), the Court wrote:

"There can be no doubt that the brutal and sadistic 
atrocities which were uncovered by the investigation 
of the State police in August and September of 1966 
cannot be tolerated. The Court has reference to the 
use of a telephone shocking apparatus, the teeter 
board, strapping on the bare buttocks and other 
torturous acts of this nature."
Some criminal prosecutions of prison employees were brought 

but few convictions were obtained. 309 F.Supp. at 368-369, note 
4.
3/ The appointment of counsel was noted in each of the 
opinions. In Talley v. Stephens, 247 F.Supp. 683, 685 (E.D.
Ark. 1965), the Court stated:

"Petitioners have been represented most capably by 
Bruce T. Bullion of Little Rock and Louis L. Ramsay,
Jr. of Pine Bluff, appointed by the Court to repre­
sent petitioners without charge. The Court is 
grateful to Messrs. Bullion and Ramsay for their 
services."

In Jackson v. Bishop, 268 F.Supp. 804, 806 (E.D. Ark. 1967) the 
Court said:

"The court appointed Edward L. Wright of Little 
Rock and William S.Arnold of Crossett, both highly 
respected and experienced members of the Arkansas 
bar, to represent the plaintiffs without charge.
They have done so most capably and the Court thanks 
them for their services."

8



The Holt_I proceedings which are described in the Memoran­
dum Opinion of June 20, 1969, Holt v. Sarver, 300 F.Supp. 825 
(E.D. Ark. 1969), resulted from the consolidation of three pro 
se prisoner complaints. The prisoners complained that confine­
ment in isolation cells at Cummins Farm amounted to cruel and 
unusual punishment, that they were denied adequate medical 
care, and that the authorities fail to protect inmates from 
assaults by other inmates. 300 F.Supp. at 826. The court-
appointed counsel for plaintiffs conducted an evidentiary

4/hearing. The Court rejected plaintiff's complaint about

3/ [Continued]
On Appeal in Jackson v. Bishop, 404 F .2d 571 (8th Cir. 1968), 
the Court noted at p. 573:

"We initially commend Edward L. Wright of Little 
Rock and William S. Arnold of Crossett, court- 
appointed counsel for the plaintiffs and Don 
Langston who argued the cases for the defen­
dant for their candid, unemotional and fair 
and able presentations. The services rendered 
by Mr. Wright and Mr. Arnold, and the expenses 
they have incurred, were without anticipation of 
reimbursement."

In Courtney v. Bishop, 409 F .2d 1185, 1186 (8th Cir. 1969), the 
Court stated:

"Phillip K. Lion and Robert L. Robinson, Jr. 
lawyers of Little Rock, Arkansas, were 
appointed to represent petitioner."

4/ The Court stated at 300 F.Supp. 827:
"The court-appointed Mr. Steele Hays of Little 
Rock, an experienced and capable trial attorney, to 
represent petitioners without charge. Mr Hays 
accepted the appointment. He and one of his 
associates, Mr. Jerry Jackson, without expectation 
of compensation or reimbursement, proceeded 
to the farm where they interviewed petitioners and 
others and took photographs of the facilities.
Both Mr. Hays and Mr. Jackson vigorously repre­
sented petitioners at a rather extended hearing 
which consumed two full trial days and part of one 
night. The Court is most grateful to Messrs. Hays 
and Jackson for their services."

9



the food served to prisoners while in isolation. The Court
also found that the evidence about assaults on prisoners by
prison employees and trusty guards was not sufficient to
justify relief. However, the Court did find that the State
"has failed and is failing to discharge its constitutional duty

5/
with respect to the safety of certain convicts, and that the 
conditions existing in the isolation cells, including overcrowd­
ing, render confinement in those cells under those conditions 
unconstitutional." 300 F.Supp. at 828. At the time of the 
1969 decision, the isolation unit at Cummins was a one story 
concrete block building with twelve cells which were 10 feet 
long and approximately 8 feet wide. The Court found that the 
isolation cells were dirty and unsanitary, pervaded by bad 
odors, that the mattresses were uncovered and dirty and that 
the cells were chronically overcrowded. The average number of 
men confined in a single cell was four. 300 F.Supp. at 
832.

Inmates in the isolation unit were served a food mixture 
known as "grue", which consists of meat, potatoes, vegetables, 
eggs, oleo, syrup and seasoning baked all together in a pan and 
served in four-inch squares. The Court found that grue was not 
appetizing and not served attractively but nevertheless found 
it a "wholesome and sufficient diet for men in close confine-

5/ The Court particularly noted the problem of "Crawlers" 
and "Creepers", inmates who have had feuds with other inmates 
and who assaulted them while they were asleep. The Court noted 
that inmate "floorwalkers" were ineffective in preventing such 
assaults since they were either afraid to call guards or were 
in league with the assailants. 300 F.Supp. at 830-831.

10



ment day after day." 300 F.Supp. at 832. In concluding that 
the confinement in isolation as then practiced at Cummins 
violated the Cruel and Unusual Punishment Clause, the Court 
noted that "if confinement of that type is to serve any useful 
purpose, it must be rigorous, uncomfortable and unpleasant."
Id. at 833. However, the Court found that the "prolonged 
confinement of numbers of men in the same cell" under these 
conditions to be "emotionally traumatic as well as physically 
uncomfortable." Id. at 833. The Court said about the confine­
ment in isolation: "It is hazardous to health. It is degrad­
ing and debasing; it offends modern sensibilities, and, in the 
Court's estimation, amounts to cruel and unusual punishment."
Id. at 833.

The relief granted however was quite limited. The Court, 
rather than mandating specific changes, merely made "sugges­
tions" to the defendants. 300 F.Supp. at 833-834. The 
Court suggested that efforts be made to hold the number of 
persons confined in a single isolation cell at one time to a 
"minimum". Id!. at 834 . The Court suggested that inmates not 
be long confined in isolation in advance of a hearing, and 
stated .that the defendant "ought to be able at minimum expense 
to do something about the sanitary conditions of the cells and 
he might give consideration to doing so without much regard to 
the attitudes of the inmates." Ibid. The Court directed the 
defendants to report the changes made and retained jurisdiction.

C . Holt II - Litigation During 1970 and 1971
The Holt II proceedings are described in the Memorandum 

Opinion of February 18, 1970; Holt v . Sarver, 309 F.Supp. 362 
(E.D. Ark. 1970), affirmed and remanded 442 F .2d 304 (8th Cir.

11



1971). In December 1969 Judge Henley consolidated five addi­
tional pro se prisoner complaints with the three cases which 
were considered in the Holt I opinion. He also appointed new 
counsel, Messrs. Kaplan and Holt, who have served since Decem­
ber 1969 as counsel for members of a class of prisoners in the

6/Arkansas system. The appointed counsel filed a Consolidated
Amended and Substituted Complaint which prayed for declaratory
and injunctive relief. A. 208. The Complaint alleged that
the defendants violated the prisoners' rights under the Thir-

7/
teenth and Fourteenth Amendments.

The Court sustained the claim that the overall conditions 
and practices of the Arkansas State Penitentiary system amounted

6/ The Court stated at 309 F.Supp. at 364:
"It appearing to the Court that consti­
tutional questions raised by the petitions 
submitted by the complaining inmates per 
sese were substantial, the Court appointed 
Messrs. Jack Holt, Jr. and Philip Kaplan of 
the Little Rock Bar to represent Peti­
tioners without charge. Messrs. Holt and 
Kaplan accepted the appointments and have 
done yeoman service on behalf of their 
clients. The Court wishes to thank them for 
their efforts.

2/ The claim is summarized in If20 of the Consolidated 
Amended and Substituted Complaint:

"The actions of defendants have deprived members of 
the plaintiff class of rights, privileges and 
immunities secured to .them by the due process and 
equal protection clauses of the Fourteenth Amendment 
to the Constitution of the United States, including: 
(a) the right not to be imprisoned without meaning­
ful rehabilitative opportunities, (b) the right to be 
free from cruel and unusual punishment, (c) the 
right to be free from arbitrary and capricious 
denial of rehabilitation opportunities, (d) the 
right to minimal due process safeguards in decisions

12



to a violation of the Cruel and Unusual Punishment Clause. 309 
F.Supp. at 365. The Court also sustained the claim that 
unconstitutional racial discrimination and segregation was 
being practiced in the system. Id̂ . at 366. The Court rejected 
a claim that forced labor in the prisons violated the Thir­
teenth Amendment. Id. at 365.

At the time of the 1970 decision the Arkansas prison 
sytem was operated primarily with trusty prisoners serving as 
guards and with very few free world employees. 309 F.Supp. at 
373. The three principal units in the system were the Cummins 
Farm, the smaller Tucker Intermediate Reformatory and the 
small Women's Reformatory located on the Cummins Farm. Id. at 
366. At the largest institution at Cummins only 35 free world 
employees were in "ostensible charge of slightly less than a 
thousand men." IR3. at 373. "Of those 35 only 8 were available 
for guard duty, and only 2 of them were on duty at night."
Ibid. The trusty guard system, the confinement of inmates in 
large open barracks, bad conditions in the isolation cells, an 
absence of a meaningful program of rehabilitation and other 
aspects of prison life were held in combination to create 
an unconstitutional system. The Court said;

1_/ [Continued]
determining fundamental liber-ties, (e) the right to 
be fed, housed and clothed so as not to be 
subjected to loss of health or life, (f) the right 
to unhampered access to counsel and the courts, (g) 
the right to be free from the abuses of fellow 
prisoners in all aspects of daily life, (h) the 
right to be free from racial segregation, (i) the 
right to be free from forced labor, (j) the right to 
be free from the brutality of being guarded by fellow 
inmates."

(309 F.Supp. at 364).

13



"For the ordinary convict a sentence to the Arkansas 
Penitentiary today amounts to a banishment from 
civiliz.ed society to a dark and evil world complete­
ly alien to the free world, a world that is admin­
istered by criminals under unwritten rules and 
customs completely foreign to free world culture.

After long and careful consideration the Court 
has come to the conclusion that the Fourteenth^
Amendment prohibits confinement under the conditions 
that have been described at the Arkansas Peni­
tentiary System as it exists today, particularly 
at Cummins, is unconstitutional.

Such confinement is inherently dangerous. A 
convict however cooperative and inoffensive he may 
be, has no assurance whatever that he will not be 
killed, seriously injured or sexually abused. Under 
the present system the State cannot protect him.

Apart from physical danger, confinement in the 
Penitentiary involves living under degrading and 
disgusting conditions. ...

*  *  *

It is one thing for the State to send a man to 
the Penitentiary as a punishment for crime. It is 
another thing for the State to delegate the govern­
ance of him to other convicts, and to do nothing 
meaningful for his safety, well being, and possible 
rehabilitation. It is one thing for the State not 
to pay a convict for his labor; it is something else 
to subject him to a situation in which he has to 
sell his blood to obtain money to pay for his own 
safety, or for adequate food, or for access to 
needed medical attention." (309 F.Supp. at 381).
With respect to the isolation cells at Cummins the 1970 

opinion found that while the overcrowding noted in Holt I 
"seems to have been ameliorated; the other conditions still 
exist." 309 F.Supp. at 378. The Court noted the planned con­
struction of a new maximum security unit at Cummins, and stated 
that the operation of the unit by trustys was a source of con­
stant trouble. Ibid. However the Court concluded that since 
overcrowding had been relieved and many of the conditions

14



were due to the conduct of the inmates, the isolation cells 
were not as serious a constitutional problem as other aspects 
of the penitentiary- The Court ordered an end to the system of 
trusty guards in the isolation cells and in addition ordered 
that food service be made more sanitary and palatable. 309 
F.Supp. at 384-385.

On appeal by the defendants the Court of Appeals affirm­
ed. Holt v. Sarver, 442 F .2d 304 (8th Cir 1971). The Court 
of Appeals rejected the defendant's argument that the case was a 
suit against the State barred by the Eleventh Amendment, the 
Court relying on Ex parte Young, 209 U.S. 123 (1908). The 
Court held that jurisdiction was properly invoked to enforce 
the Eighth Amendment under 42 U.S.C.A. §1983 and 28 U.S.C.A. 
§1343(3). The Court rejected the argument that the record did 
not support the District Court's findings of an Eighth Amend­
ment violation. On remand the District Court held further 
hearings in November and December 1971 and entered a supple­
mental decree dated December 30, 1971. A. 78. The Court 
noted that there had been great progress in making the system a 
consitutional one; that there were still problem areas and 
that the court should retain jurisdiction. A. 78. The Court 
supplemented the earlier injunctions by provisions which 
enjoined any cruel and unusual punishments, enjoined inter­
ferences with inmates' access to the courts and to counsel, and 
enjoined reprisals against inmates for exercising their right 
to access to the court. Ibid.

15



D. Holt III - Litigation in 1973 and 1974
The Holt III proceedings are described in the opinion of 

August 13, 1973, Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark.
1973), affirmed in part, reversed in part, sub nom. Finney v. 
Arkansas Board of Corrections, 505 F.2d 194 (8th Cir. 1974).
On September 8, 1972 the Court filed a memorandum and order 
noting that it was receiving a constant stream of complaints 
which gave the court concern that inmates were beaten and abused 
and otherwise mistreated in violation of the Court's prior 
orders. A. 81. Ultimately the Court consolidated 34 indi­
vidual and class actions with the pending Holt proceeding and 
held evidentiary hearings in November and December 1972 and 
January 1973.

In the opinion issued August 13, 1973, Judge Henley found 
that the prison system had undergone substantial changes.
The trusty system had been essentially dismantled, and a new 
maximum security building (the East Building) had been built at 
Cummins. The Court held that a number of conditions at Cummins 
and Tucker were undesirable but no longer unconstitutional and 
that the main difficulties resulted from poor administration.
363 F.Supp. at 201-202. The Court did order further injunctive 
relief to deal with various problems of racial discrimination 
including prohibiting undue restrictions against Black Muslims, 
prohibiting the continued racial segregation of inmates in the 
maximum security unit at Cummins and issuing a general injunction 
to attempt to deal with problems of race discrimination in job 
assignments of blacks and in punishment of inmates within the 
institution. 363 F.Supp. 203-205.

16



With respect to the maximum security unit, the Court 
found that the cells were not overcrowded, that they were 
properly lighted and ventilated and that their conditions did 
not constitute a violation of the Eighth Amendment. 363 F.Supp. 
at 208. The Court also refused to enjoin the. continued diet of 
grue in the punitive isolation cells. Ibid. The Court concluded 
that it was not necessary for it to continue to retain further 
supervisory jurisdiction. 363 F.Supp. at 216.

The Court granted a request from Messrs. Holt and Kaplan 
that they be awarded a counsel fee. The Court granted a fee of 
$8,000 plus $502.80 to reimburse them for money paid to law 
students and directed that the members of the Board of Correc­
tions make those payments out of available department funds.
363 F.Supp. at 217. These orders were embodied in a Second 
Supplemental Decree issued August 13, 1973. A. 109.

The plaintiffs appealed from the Second Supplemental Decree 
and on appeal the Eighth Circuit found continuing constitutional 
violations and ordered the District Court to continue to retain 
jur isdiction:

"This Court recognizes the difficult issues 
the District Court has passed upon since the 
commencement of this litigation in 1969. We 
are nevertheless compelled to find on the 
basis of the overall record that there exists 
a continuing failure by the correctional 
authorities to provide a constitutional and, 
in some respects, even a humane environment 
within their institutions. As will be discuss­
ed , we find major constitutional deficiencies 
particularly at Cummins, in housing, lack 
of medical care, infliction of physical and 
mental brutality and torture upon individual 
prisoners, racial discrimination, abuses of 
solitary confinement, continuing use of trusty

17



guards, abuse of mail regulations, arbitrary- 
work classifications, arbitrary disciplinary 
procedures, inadequate distribution of food 
and clothing, and total lack of rehabilitative 
programs. We are therefore convinced that 
present prison conditions, now almost five 
years after Holt I, require the retention of 
Federal jurisdiction in the granting of fur­
ther relief." (505 F .2d at 200).

With respect to the punitive wing the Court noted that 
prisoners were denied the regular prison diet and served grue 
as a form of further punishment. The Court of Appeals noted 
that while the District Court thought that grue constituted a 
nutritionally sufficient diet, it found that conclusion "dubi­
ous." 505 F .2d at 207. The Court directed the District Court to 
ensure that prisoners in the punitive wing are "not deprived of 
basic necessities including light, heat, ventilation, sanitation, 
clothing, and a proper diet." 505 F .2d at 208.

E. Graves v. Lockhart - 1973-1974 Proceedings
Proceedings in the Graves Case are described briefly 

in an unreported opinion filed on September 29, 1977. A. 198. 
Graves was initiated in late 1973 and consisted of two consolidat­
ed complaints filed by Willie Graves and other prisoners who 
complained of race discrimination and other types of mistreat­
ment in the punitive wing at the Cummins Prison. Graves was filed 
during plaintiffs appeal from the Holt III determination that 
there was no constitutional violation in the punitive wing. In 
early 1974 the district court appointed Philip McMath, Esq. to 
represent the prisoners in Graves, and conducted a trial of about 
six days. (Only one day's testimony from this hearing has been 
transcribed to date). The district court stated in the subse-

18



quent memorandum opinion of September 29, 1977 that, as the case 
progressed "it became clear that the issues raised by petitioners 
in these cases were in large measure the same issues that had 
been raised and considered in Holt III which was then pending on 
appeal, and that no useful purpose would be served by undertak­
ing to decide these cases until the court of appeals should 
decide that case." A. 200. After the Court of Appeals's 
decision in Finney was announced in October, 1974 the district 
court consolidated Graves with the Holt-Finney litigation. The 
evidence in Graves was thus considered as a part of the record 
in the subsequent Finney proceedings described below. Mr. Philip 
McMath, the appointed attorney in Graves was awarded an attor­
ney's fee in the subsequent Finney decision which is now being 
reviewed in this Court. The injunctive relief granted in Finney- 
Holt was considered applicable to the Graves case. The indi­
vidual damage claims of the plaintiffs in Graves were subse­
quently dismissed in the memorandum opinion of September 29,
1977. A. 204.

F. Finney v. Hutto, - Proceedings 1975-1977
The proceedings in the district court after the 1974 

Eighth Circuit remand are described in the Memorandum Opinion of 
March 19, 1976 reported as Finney v. Hutto, 410 F.Supp. 251 
(E.D. Ark. 1976). See also the Clarifying Memorandum Opinion 
filed April 2, 1976, which is unreported. A. 188.
These decisions were affirmed by the Eighth Circuit January 6, 
1977, sub nom. Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977).

The March 19, 1976 opinion reviews the evidence taken in 
extensive hearings before the District Court and before a

19



United States Magistrate during 1975. Judge Henley stated 
that the court "recognizes that it should not embroil itself 
unreasonably in the affairs of the department" and that "much 
must be left to the discretion of the prison administrators."
410 F.Supp. 254. However, the opinion stated that constitu­
tional deprivations continued to exist and that the court must 
grant appropriate relief. The opinion, which covers some 35 
pages in the official reports, contains separate sections 
discussing the following subjects: "Overcrowding", "Medical 
Services and Health Care", "Rehabilitation", "Regulations as to 
Mail and Visitors", "Legal Assistance to Inmates", "Inmate 
Safety", "Race Relations in General", "Racial Discrimination", 
"Grievance Procedure", "The Black Muslims", "Brutality", 
"Disciplinary Procedures", "Punitive Isolation and Administra­
tive Segregation", "The East Building at Cummins", "Attorney's 
Fees and Expenses", and "Procedural Details". The court issued 
its Third Supplemental Decree on March 19, 1976. A. 177. See 
also the Clarifying Memorandum Opinion of April 6, 1976. A.
188.

With respect to overcrowding the Court found that condi­
tions in 1975 were worse than in either 1973 or 1974, although 
after the 1975 hearings conditions were alleviated substantially.

8/

8/ The hearing before the Magistrate was treated as depositions. 
410 F.Supp. at 253 note 2. The hearings in open court in 1975 
have not been transcribed by the court reporter. 410 F.Supp. 
at 285, note 14. The same is true of most of the 1974 Graves 
transcripts.

20



The court granted extensive additional injunctive relief as to
9/

a variety of prison conditions. 410 F.Supp. at 254-257.
With particular reference to the punitive isolation cells the 
Court found that the East Building at Cummins was overcrowded, 
that cells designed to house only one prisoner had been used to 
house three or four men and that the East Building "has been 
chronically overcrowded and that something must be done about

9/ With respect to health care, the Court ordered a new 
study to be made by the Arkansas State Board of Health of 
medical facilities at Cummins and Tucker, ordered the employment 
of one or two full time psychiatrists or clinical psychologists 
at the prison hospital, and issued an order prohibiting the 
disciplinary committee from punishing inmates for malingering or 
pretending illness to avoid work unless the disciplinary commit­
tee had consulted with a doctor who examined the inmate prior to 
making such a finding. 410 F.Supp. at 258.

The Court approved the changes made by the Corrections 
Department in establishing a rehabilitation program, approved 
the newly adopted regulations as to mail and visitors and the 
procedure for furnishing legal assistance to inmates by a full 
time legal adviser employed by the Department. Id. at 262.
The Court found inmates were no longer used as armed guards in 
the State prison system and that inmate safety had been sub­
stantially improved. Id. at 263. With respect to race rela­
tions, the Court ordered a program to recruit more black 
employees and put blacks in positions of meaningful authority 
in the prison system. Id. at 265-268. In addition to the 
previous orders prohibiting discrimination against Black 
Muslims the Court enjoined the defendants from serving Muslims 
any food which contained pork; this applied in maximum security 
cells as well as in general population. Id. at 269-270. With 
respect to brutality against inmates, the Court supplemented 
its prior decrees prohibiting tortures and other brutal treat­
ment by an additional injunction prohibiting empoyees of the 
Department "from verbally abusing, or cursing, inmates, and 
from employing racial slurs on epithets when addressing or 
talking with inmates." Id. at 272. With respect to disci­
plinary procedures adopted by the defendants to comply with 
Wolf v. McDonnell, 418 U.S. 539 (1974), the Court added a 
prohibition against a charging officer sitting in judgment on 
his own complaint. _Id. at 272-274.

- 21 -

t



the situation" 410 F.Supp. at 257. The Third Supplemental 
Decree set maximum capacity limits for Cummins and Tucker 
prisons, and approved the capacities of individual housing 
units at Cummins and Tucker as set forth in a report from 
the defendants. For the maximum security cells at Tucker and 
all cells in the East Building at Cummins the court entered an 
injunction restraining defendants from confining more than two 
persons in any maximum security cell at the same time, and 
requiring that each person be provided with a bunk and mattress 
on which to sleep at night, subject to exceptions for "cases of 
serious emergencies involving large numbers of violent or 
unruly inmates." A. 179. The Clarifying Memorandum Opinion 
permitted full use of certain four-man cells, however, the 
Court provided that inmates in "punitive isolation" should not 
be confined with more than two men in a cell. A. 189.

10

10/ A report prepared by the defendants in response to 
the Third Supplemental Decree issued by the court con­
tains a description of the Cummins facility including the 
East Building. The report states, "There are 22 rooms in 
the punitive wing, designed to house one inmate per room, 
but convertible to two-man rooms in an emergency." See, 
Commissioners' Report to the Court- as directed in the 
Third Supplemental Decree Attachment, .#8, p. 46 (July 14, 
1976). In answers to interrogatories the defendants 
acknowledged that each had one bunk, one toilet, and 
one sink. See Answers to Interrogatories Propounded to 
Defendants (May 3, 1974) at page 6, A. p. 226. The 
defendants also admitted that up to three inmates were 
confined in these one-man cells. See Defendants Response 
to Request for Admissions of Fact (May 3, 1974) page 3,
A. 219.

- 22 -



Pursuant to the mandate of the Eighth Circuit, the Court 
conducted an extensive further inquiry into conditions in puni­
tive isolation in the East Building at Cummins. 410 F.Supp. at 
274-281. The Court also examined conditions at Tucker Prison and 
in the other two wings of the Cummins East Building where prison­
ers are held in segregation pending trial in one wing and in 
maximum secuirity in the third wing. After considering testimony 
heard in Graves in 1974 and the consolidated cases in 1975 and 
conducting the Court's own inspection of the punitive cells and 
the administrative segregation cells of both Cummins and Tucker, 
Judge Henley reversed his prior ruling and concluded that the 
conditions were unconstitutional. Judge Henley decided that 
either conditions were not as good in 1973 as he had thought at 
that time or the conditions had deteriorated since that period.
410 F.Supp. at 275. "Whichever may be the case, the Court now 
find from the evidence that unconstitutionalities now exist with 
respect to both punitive isolation and administrative segrega­
tion, ...." Ibid. The Court found that an inmate sentenced to 
punitive isolation was confined "in an extremely small cell under 
rigorous conditions for an indeterminate period of time with his 
status being reviewed at the end of each fourteen day period."
Ibid. The Court found that while most inmates sentenced to 
punitive isolation were released in less than fourteen days 
"many remained in the status in question for weeks or months,

’ 11/depending upon their attitudes as appraised by prison personnel."

11/ The regulations of the Arkansas Department of Corrections 
dealing with Disciplinary Procedures (see Enclosure #5 of the 
Answer to Interrogatory #8, attached to the Answers to Interro- 
garatories propounded to Defendants) provided:

- 23 -

t



Ibid.
in the

The Court found that such prisoners were rarely confined 
cell alone and that at times three or more inmates were

11/ [Continued]
"Punitive Segregation
Punitive segregation is ordinarily used as punishment 

when reprimands, loss of privileges, suspended sentences, and 
similar measures have been tried without satisfactory results. 
Punitive segregation is a major disciplinary measure and should 
be used judiciously when all other forms of action prove 
inadequate, where the safety of others is concerned, or when 
the serious nature of the offense makes it necessary.

Forms of Segregation
Segregation may take any one of the following forms:
1. Punitive Segregation - special punishment -

Confined inmates in a punishment status, 
placed on a restricted diet, with loss 
of privileges and placed in special 
facilities for a comparatively brief period. 
Ordinarily no inmate should be retained in 
punishment segregation on restrictive diet 
more than 15 days, and normally a shorter 
period is sufficient. Punitive segregation 
is not for indefinite or permanent segrega­
tion.
A. Regular punitive segregation procedures

(1) Period of Confinement:
Fifteen days should be the maximum time 
spent in punitive segregation.

Recalcitrant inmates at the end of 
this period should be fed a normal 
diet. After two or three days, 
depending upon physical condition, ^
he may be returned to a restricted 
diet and the procedure continued."

Department of Corrections officials interpreted the regulation as 
allowing an inmate to be kept in punitive isolation indefinite­
ly as long as he was given regular meals for two days every 
15 days. See, Testimony of A. L. Lockhart, Extract of Proceed­
ings in Graves v ._Lockhart, pp. 95-96, 100.

- 24 -



kept in the small cell equipped with extremely limited facili­
ties. Where three or more men were put in the same cell,

12/
one or two of them had to sleep on the floor. The mat­
tresses were removed during the day. .Id. at 275-276.

The Court reviewed the diet of grue served as a punish­
ment to inmates in punitive isolation in light of the Court of 
Appeals remand and concluded that it should no longer be 
served. JDi. at 270-277. Inmates were fed grue during each 
fourteen day period, except that on every third day they were 
supposed to receive one regular prison meal. Ibid. Many 
inmates complained of short rations for this meal and of a 
practice known "as shaking the spoon". _Id. at 276 , note 11.
At the end of each fourteen days inmates were weighed to 
determined how much weight they had lost on the grue diet and 
if returned to punitive isolation were given regular food for
two days before being returned to the grue diet on the seven-

11/teenth day. Virtually all inmates lost weight on this diet.
Id. at 276, note 12. Inmates were allowed very limited outdoor 
exercise and left their cells on every third day to take a 
shower. Inmates in punitive isolation were denied practically 
all privileges; they could receive visits only from clergymen

12/ See Defendants' Response to Request for Admission of Fact 
(May 3, 1974) page 3, A. 219.
13/ Defendants admitted that the caloric value of the grue 
served each day was approximately 962 calories, Answers to 
Interrogatories Propounded to Defendants (May 30, 1974), p. 7,
A. p. 227, and that "plaintiffs, while inmates in the 'punitive 
wing' of the Cummins Prison Farm, have generally and uniformal- 
ly [sic] suffered weight loss." Defendants Response to Request for 
Admission of Fact (May 3, 1974) p. 2, A. p. 218.

25



which were very rare and could receive only "constitutionally 
14/

protected" mail. The Court found the punitive wing was
frequently the scene of violence with prisoners screaming and
cursing at guards, attempting to assault and injure them and the
guards retaliating with night sticks and mace, frequently with

15/excessive responses. Id. at 276-277. The Court criticiz­
ed the lack of professionalism and commonsense among the maximum 
security personnel. Id. at 277. The Court agreed with the 
testimony of Dr. Arthur Rogers, a clinical psychologist, 
who testified as plaintiff's expert in the 1974 Graves hearings 
that punitive isolation as practiced at Cummins "serves no
rehabilitative purpose, and that it is counterproductive. It

16/
makes bad men worse. It must be changed." id. at 277.

The Third Supplemental Decree prohibited the continued use 
of grue and required that inmates be served food of the same quality 
as that supplied to inmates in the general population. The 
Court ordered that defendants provide inmates in punitive isolation

14/ It was admitted that inmates were not allowed to receive 
personal mail while serving time in the punitive wing. Defen­
dants' Response To Request For Admission of Fact (May 3, 1974), 
p . 3, A. p . 219.
15/ Much of the testimony, including that of defendants' 
witnesses, related to various incidents of violence in the 
punitive wing. See, e.g., the testimony of A. L. Cummins, 
in the Extract of Proceedings in Graves v. Lockhart, at pp. 
47-53“
16/ See, generally, the testimony of Arthur Rogers, set out 
in the Extract of Proceedings in Graves v. Lockhart at pages 
3-20.

26



further opportunity for physical exercise outside their cells
Finally, the Court enjoined the confinement of inmates in pun

17/
tive isolation for indeterminate periods.The

17/ The Third Supplemental Decree provided (A. 183-185): 
"Punitive Isolation.

Respondents will be, and they hereby are, 
enjoined from sentencing inmates of the Depart­
ments to confinement in punitive isolation for 
indeterminate periods of time. In the future 
an inmate who is convicted of a major dis­
ciplinary infraction may be sentenced to 
confinement in punitive isolation for a period 
of not more than thirty days; at the end of that 
maximum period he must be returned to general 
population, or, if it be found necessary, he may 
be held in a segregated status under maximum 
security conditions other than punitive. No 
disciplinary committee or panel is required to 
sentence an inmate to confinement in punitive 
isolation for as much as thirty days, and the 
Superintendent of the institution or the 
Commissioner is free to release an inmate from 
punitive isolation at any time prior to the 
expiration of his sentence.

Inmates who have been confined in punitive 
isolation for more than thirty days when this 
Decree is filed are to be released to population 
or held in maximum security but under conditions 
that are not punitive. Inmates who have not 
been confined in punitive isolation for thirty 
days or longer will be considered as serving 
sentences of not more than thirty days. In 
determining whether an inmate has been in 
isolation for thirty days or longer, the two 
day periods of "interruption" mentioned in the 
Opinion will be included in the calculation.

Respondents will be, and they hereby are, 
enjoined from supplying inmates confined in 
punitive isolation with food and water inadequate 
in quantity and quality to preserve their health, 
and are further enjoined from serving such 
inmates diets which differ qualitatively from 
food supplied to inmates in general population. 
Without limiting the generality of the fore­
going, the use of the substance knows as 
"grue", or any variant thereof, as a food for 
inmates in punitive isolation is specifically 
enjoined.

27



Court's decision was that indeterminate periods of confinement 
under these conditions was unreasonable and unconstitutional.
410 F.Supp. at 278. The Court acknowledged that some inmates 
must be segregated from the general population for various 
reasons "and does not condemn that practice". Ibid. "But 
segregated confinement under maximum security conditions is one 
thing; segregated confinement under the punitive conditions that 
have been described is quite another thing." Ibid. The Court 
made clear that it was not prohibiting all segregation of unruly 
prisoners from general population and referred to the Eighth 
Circuit's controlling decision relating to so-called "administra-

17/ [Continued]
Respondents will be, and they hereby are, 

directed and required to afford inmates in 
punitive isolation reasonably adequate oppor­
tunities for physical exercise outside their 
cells, including reasonable amounts of out­
door exercise when weather permits.

Lest there be any mistake about the matter, 
respondents will be, and they hereby are, enjoined 
from confining in any cell in any of the three 
wings of the East Building at Cummins, in circum­
stances other than exceptional and then for only 
short periods of time, more than two men at the 
same time, and respondents will be, and are, 
required to provide each man so confined with a 
bunk and mattress.

Respondents will be, and they hereby are, 
directed and required to evaluate and periodically 
re-evaluate the c-ases of inmates confined in what 
the court has called the "third wing" of the East 
Building, (Opinion page 60) as prescribed on 
pages 62-64 of the Opinion, and to take appro­
priate actions based on such evaluations and re- 
evaluations.

28



tive segregation", e.g., Kelly v. Brewer, 525 F .2d 394 (8th Cir. 
1975). See 410 F.Supp. at 278. Judge Henley based his decision 
to limit the time in punitive isolation to thirty days on the 
testimony of Mr. Hutto taken in conjunction with the 
various changes that were ordered in conditions in that wing.
The Court stated:

"As to the length of the maximum sentences 
that maybe imposed, the court notes that Mr. Hutto 
is of the view that basically the maximum period 
of time in which a man should be confined in puni­
tive isolation with a restricted diet, with no 
mattress in the daytime, and perhaps without a 
bunk to sleep in at night is fourteen days.
In view of the changes in the confinement in 
punitive isolation that the court is ordering, 
the court feels that a maximum sentence of thirty 
days is permissible. If at the end of that maxi­
mum period, it is found that an inmate should 
not be returned to population, he may be kept 
segregated but under conditions which are 
not punitive." (410 F.Supp. at 276).18/

The Court pointed out that less than thirty day sentences might
be imposed and also that inmates might be prosecuted for felonies
if they committed serious crimes while in prison. 410 F.Supp. at
278.

Judge Henley also used the thirty day limit on punitive 
confinement as a part of the method of dealing with uncon­
stitutional overcrowding. "As far as the punitive wing and 
the administrative segregation wings of the East Building are 
concerned, the directives of the Court in the immediately preced­
ing section hereof ought to take care of the problem of overcrowd­
ing." 410 F.Supp. at 278.

18/ Indeed, the report filed by the defendants following 
the Third Supplemental Decree states that an inquiry showed 
that there was no one at any institution on punitive isolation 
who had been there for more than 30 days at the time of the 
Court's Order. See, Response filed by the Defendants in Finney 
v. Hutto, July 14, 1976, Commissioner's Report to the Court as 
Directed in the Third Supplemental Decree at p. 5, dealing with 
punitive isolation.

29



In the third wing, which would probably be called "adminis­
trative segregation" in most institutions but in Arkansas was 
merely referred to as the "third wing" or "maximum security 
wing, the Court also ordered certain changes. Here the Court 
ordered periodic evaluation of the situation of convicts who 
could not be safely returned to the general population in accord 
with the Eighth Circuit's ruling in Kelly v. Brewer, supra.

In the Clarifying Memorandum Opinion of April 2, 1976, the 
Court responded to an inquiry from the defendants about how to 
deal with prisoners who committed infractions while in punitive 
isolation. The Court stated that if an inmate in punitive isola­
tion commits a serious infraction he may be proceeded against in 
a disciplinary proceeding just as though the offense had been 
committed by an inmate in the general population. A. 190.
If an inmate is found guilty the Court stated he may be sentenced 
to an additional time in punitive confinement beyond the basic 
thirty day maximum period specified in the Third Supplemental 
Decree. Ibid. The Court however warned the defendants to move 
slowly and sparingly in this area, and not to use the major 
disciplinary procedures followed by consecutive sentences as a 
means of evading the prohibition againt indeterminate sentences. 
The Court stated that if the imposition of consecutive sentences 
became a matter of common practice it would be constitutionally 
suspect and call for additional judicial attention. Ibid.

The Court also clarified its order with respect to food to 
provide that inmates in punitive isolation not be required to be 
served exactly the same food or the same size portions or have

30



the same choice of dishes as other inmates but the Court did 
require that inmates be served adequate meals in punitive con­
finement and warned against the practice of deliberately serving 
short rations. A. 191-192.

The Court's ruling on attorneys' fees is set forth in 410 
F.Supp. at 281-285. The Court noted that Mr. McMath who was 
appointed in 1974 had received no fee for his work and that 
Messrs. Holt and Kaplan had received no fee for their work on 
the Holt III appeal or any subsequent work. The Court noted 
that its 1973 award of fees had been based in part upon the 
"private attorney general" theory and that Edelman v.
Jordan, 415 U.S. 651 (1974) and Alyeska Pipeline Service Co. 
v. Wilderness Society, 421 U.S. 240 (1975) required a reexami­
nation of the Court's power to award such a fee. The Court 
concluded that the bad faith exception to the American Rule, 
recognized in Alyeska, justified the award of a counsel fee in 
this case. 410 F.Supp. at 284. The Court noted that the 
attorneys involved had been in the protracted case only because 
they had been appointed; that the litigation had been needed to 
bring about the erratic course of improvement in the Arkansas 
prison system from 1965 to date; that the litigation brought to 
light problems which would have been otherwise overlooked; that 
there had been a hardening of the previously cooperative 
attitude of the prison administrators and an unwillingness to 
go forward with necessary improvements; that at "practically 
every stage of the litigation evidence has brought to light 
practices of which those in higher prison authority were 
ignorant, and which they eliminated when the facts were disclos­

31



ed"; that the authorities should have themselves discovered 
some of those practices without waiting for them to be develop 
ed in the lawsuit by plaintiffs' attorneys. Id, at 284-285.
The Court stated that in fixing the amount of the fee it was 
making no effort "to adequately compensate counsel for the work 
that they have done or for the time that they have spent on the 
case" because adequate compensation "would run into many 
thousands of dollars." Id. at 285. The Court stated it 
did wish to allow more than a nominal fee and accordingly 
awarded $20,000.00 to be divided between the three attorneys 
and to be paid out of Department of Corrections funds. The 
Court also ordered the State to pay for the cost of a tran­
script of depositions and testimony. The Court noted that much 
of the testimony heard in 1974 and 1975 had not been tran­
scribed. 410 F.Supp. at 285, note 14.

On appeal by the defendants the Eighth Circuit affirmed on 
January 6, 1977. Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977). 
The defendants contested the aspects of the decree which pro­
hibited indeterminate confinement in punitive isolation and which 
awarded attorneys' fees and costs. The Eighth Circuit accepted 
Judge Henley's description of the conditions in punitive isola­
tion and affirmed his conclusion that indefinite confinement in 
those conditions for more than thirty days was cruel and unusual 
punishment. The Court affirmed the award of attorneys fees 
reasoning that the award was justified by the recently 
enacted Civil Rights Attorneys Fee Awards Act of 1976, 
codified as 42 U.S.C. §1988. The Court reasoned that the award 
was not barred by the Eleventh Amendment based upon this Court's

32



decision in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The 
Court also found that the record fully supported the District 
Court's finding that the conduct of the defendants justified an 
award under the bad faith exception enumerated in the Alyeska 
case. 548 F .2d at 742, n.6. Finally, the Court found the award 
of costs permissible under the Eleventh Amendment citing Fairmont 
Creamery Company v. Minnesota, 275 U.S. 70 (1927). The Court of 
Appeals awarded the appointed counsel an additional $2,500.00 for 
their services on the appeal.

On October 17, 1977, this Court granted a petition for 
certiorari filed by the defendants Hutto et al.

33



SUMMARY OF ARGUMENT

I. A. The Eighth Amendment limits the prison condi­
tions in which an inmate may be confined. Because the prisoner, 
by reason of the deprivation of his liberty, cannot provide for 
himself, prison authorities must furnish such essentials as 
food, clothing, shelter, sanitary facilities, and medical 
treatment. Estelle v. Gamble, 50 L.Ed. 2d 251 (1977).

B. The disputed 30 day limitation on punitive 
segregation was part of the court ordered remedy for the 
unconstitutional conditions the District Court found in the 
punitive facilities in 1976. Petitioners do not question the 
holding of the lower courts that the 1976 conditions constit­
uted cruel and unusual punishement. The principle elements 
on which the District Court based its finding of a consti­
tutional violation included severe overcrowding, the lack of an 
adequate diet, and physical attacks on inmates by guards and 
other inmates.

C. The District Court did not hold that indefinite 
punitive segregation was a per se violation. The Court merely 
imposed the 30 day limitation in light of the conditions at 
the particular punitive facilities involved.

D. The 30 day limitation was reasonably adapted to 
remedy the proven violation. The 30 day rule limited the 
extent to which an inmate would be subject to the conditions 
found by the District Court, many of which would have been 
difficult to alter directly. The limitation also lowered the 
average population in the punitive facilities and thus reduced 
the degree of overcrowding. This was a less intrusive remedy 
than attempting to regulate and monitor in great detail the 
events and practices in the punitive facilities.

34



II.A. The District Court awarded respondents
counsel fees because the defendants had acted in bad faith 
and directed that petitioners pay that award out of state 
funds under their control.. The finding of bad faith was 
affirmed by the Court of Appeals and is not questioned here. 
The general authority of the federal courts to award fees in 
light of such conduct is well established Alyeska Pipeline 
Service Co. v . The Wilderness Society, 421 US. 240, 259
(1975).

The Eleventh Amendment does not preclude such 
an award of counsel fees. State officials may be directed to 
make expenditures from public funds under their control so long 
as that expenditure is "ancillary" to the injunctive relief. 
Milliken v. Bradley 53 L.Ed,2d 745 (1977). This Court, by its 
decisions and practice, has long recognized that costs are 
ancillary and thus may be awarded against a state. Fairmont 
Creamery v. State of Minnesota, 275 U.S. 70. Counsel fees 
where awardable are traditionally regarded as part of costs 
Like costs counsel fees are not the gravamen of an action, are 
not incurred to a significant degree if the action is resolved 
immediately after filing- and are not measured in terms of the 
monetary loss resulting from the defendant's violation of a 
legal duty.

If, as petitioners contend, counsel fees 
must be regarded as a form of damages, the state is obligated 
by Arkansas Act 543 of 1977 to pay such award on behalf of 
petitioner Hutto.

Respondents maintain that the enactment of 
the Fourteenth Amendment worked a pro tanto repeal of the 
Eleventh Amendment. If, however, the Court concludes that 
counsel fee awards are not subject to the Eleventh Amendment, 
this question need not be reached.

35



B. The Civil Rights Attorneys Fees Award Act of 1976,- 
P.L.94-559, was adopted in the wake of the Alyeska decision to 
provide in 42 U S C, §1983 cases an express congressional 
authorization for awards of counsel fees to lawyers acting as 
private attorneys general. The court of appeals upheld the 
award of counsel fees in light of this statute.

Although P.L. 94-559 does not specify against whom fee 
awards are to be made, such awards of costs are traditionally 
made, not only against the named defendant, but also against an 
interested party which interjects itself into the case and
controls the litigation _Souffront v. Compagnie des Suceries,
217 U.S. 475 (1910). In §1983 cases the city or state involved 
commonly interjects itself into the case in this manner. The 
House and Senate Reports regarding P.L. 94-559 expressly state 
that city or state funds should be used to pay counsel fee 
awards in civil rights actions in which the named defendant 
is a city or state official

Congress has the authority under section 5 of the 
Fourteenth Amendment to subject states to monetary awards in 
federal court. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The 
legislative history demonstrates that Congress intended to 
invoke that authority.

Despite the clear intent and authority of Congress, 
petitioners urge that Congress failed to frame the statute 
in a manner sufficient to*achieve, its purpose. The decisions 
of this Court do not require that Congress exercise the power 
recognized in Fitzpatrick through any special technical 
language. It is sufficient that, as here, the intent of 
Congress is clear. If petitioners' construction of P.L 94-559 
were accepted state officials would be personally liable for

36



often substantial fees regardless of whether they had acted in 
good faith or had any control over the conduct of the litigation.

The application of P L. 94-559 to the instant case 
is reouired by the general rule that new legislation be applied
to pending litigation Bradley_v. School Board of the City
of Richmond, 416 U.S. 696 (1974), The legislative history of 
the statute demonstrates that Congress intended that it be 
so applied. The application of the law to this case involves 
no "manifest injustice", since petitioners were on notice that 
such fees might be awarded and do not claim they would have 
operated the prisons differently had that not been the case.

- 37 -

\



ARGUMENT
I. THE DISTRICT COURT PROPERLY FORBADE THE USE OF 

INDEFINITE PUNITIVE SEGREGATION AS PART OF ITS 
REMEDY FOR THE UNCONSTITUTIONAL CONDITIONS IN 
THE PUNITIVE FACILITIES
A. The Cruel and Unusual Punishment Clause of the

19/ 20/
Eighth Amendment, which limits both how long and whether 
a person can be sentenced to jail, restricts as well the 
treatment to which he can be subjected while so incarcerated. 
The prohibition has not been confined to the barbarous methods 
of torture and mutilation generally outlawed in the 18th 
Century, but prohibits practices repugnant to "the evolving 
standards of decency that mark the progress of a maturing 
society." Trop v. Dulles, 356 U.S. 86, 101 (1958). Confinement 
in a penitentiary necessarily entails a loss of most of the 
comforts enjoyed by free men; the very purpose of such incar­
ceration may require that it not be a pleasant experience. But 
such punishment, if punishment be the goal of incarceration, 
may not include "the unnecessary and wanton infliction of 
pain". Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth 
Amendment "cover [s] conditions of confinement which may make 
intolerable an otherwise constitutional imprisonment." Ingra­
ham v. Wright, 51 L.Ed.2d 711, 729, n. 38 (1977).

As this Court recognized in Estelle v. Gamble, 50 L.Ed.2d 
251, precisely because an inmate is incarcerated he must rely 
on prison authorities to meet his basic needs, for "if the 
authorities fail to do so, those needs will not be met." 50

19/ Weems v. United States, 217 U.S. 349 (1910).
20/ Robinson v. California, 370 U.S. 660 (1962).

38



L.Ed.2d at 259. Estelle held that the Eighth Amendment re­
quires the government "to provide medical care for those whom 
it is punishing by incarceration." Ijd. In Costello v . Wain- 
wr ight, 51 L.Ed.2d 372 (1977 ), the Court recognized that the 
overcrowding of prison cells could reach such a degree that the 
constitution would be violated. The obligation of prison 
authorities recognized* by Estelle is not limited to the provi­
sion of medical care, but includes all basic necessities of 
life: food, clothing, shelter, sanitary and washing facilities, 
and opportunity for a modicum of exercise. Modern standards of 
decency, as reflected in the practices generally employed and
approved by prison authorities, correctional experts, and

21/
others insist that society "be required to care for the

21/ National Advisory Commission on Criminal Justice Standards 
and Goals, Corrections, pp. 31 (clothing, bedding,1ight, 
ventilation, food), 34 (shelter, heat, light, showers, exercise 
(1973); American Bar Association, Tentative Draft of Standards 
Relating to the Legal Status of Prisoners, §§6.9 (shelter, 
physical safety), 6.12 (sanitation, heat, light, food, washing 
facilities, bedding, exercise) (1977); American Correctional 
Association, Manual of Correctional Standards, pp. 444-56 
(food), 463 (bedding), 463-4 (washing facilities), 519-39 
(exercise) (1972); National Council on Crime and Delinquency, 
Model Act for the Protection of Rights of Prisoners, §l(b)
(food, shelter, physical safety, sanitation, ventilation, 
light, exercise) (1972); Model Penal Code, §304.5(2)(food, 
clothing); Fourth United Nations Congress on Prevention of 
Crime and Treatment of Offenders, Standard Minimum Rules for 
the Treatment of Prisoners, §§9 (shelter, overcrowding), 10 
(heat, light, ventilation), 11 (sanitation), 13 (washing facili­
ties), 19 (bedding), 20(1) (food), 21(1) (exercise) (1955). 
National Sheriff's Association, Manual on Jail Administration,
§§ IX(5) (clothing) XIX (food), XX(ii) (sanitation)*, XX(12) 
(washing facilities), XXI(8)(exercise) (1970).

The United States is committed by the Geneva Convention 
to providing such necessities to prisoners of war. 6 United 
States Treaties 3317, 3328 (humane treatment, protection 
against violence), 3334 (food, water, clothing), 3336 (hygienic 
and healthful shelter), 3338 (bedding, blankets, housing, 
light, heat), 3340 (food, water, clothing), 3342 (sanitation), 
washing facilities. 3348 (exercise) (1949).

39



prisoner, who cannot, by reason of the deprivation of his
liberty, care for himself." Estelle v. Gamble, 50 L.Ed.2d at

22/
260. A deprivation of such necessities, like a withholding of
medical care, is a form of punishment which cannot be resorted

23/
to for any offense or infraction.

Unlike other constitutional questions concerning the 
operation of prisons, enforcing minimal standards of food, 
clothing, shelter and the like will not ordinarily affect the 
resonsibilities of prison administrators "for maintaining 
internal order and discipline, for securing their institutions 
against unauthorized access or escape, and for rehabilitating 
... inmates placed in their custody." Procunier v. Martinez,
416 U.S. 396, 404 (1974). Any impact of the elimination 
of brutalizing conditions is likely to be, as the District 
Court found here, conducive to the increased efficiency 
and safety of the institution. This is true, not only because 
giving an inmate a wholesome diet or a bed to sleep on will not 
encourage or facilitate a breach of security, but because 
ordinarily a prison's failure to do so arises not from such 
traditional administrative concerns but from a shortage 
or misallocation of resources or a breakdown in centralized

22/ The lower Federal courts have concurred in that assessment. 
See, e.g., Newman v. Alabama, 559 F .2d 283, 286, 291 (5th Cir. 
1977); Gates v. Collier, 501 F .2d 1291, 1302, 1305 (5th Cir. 
1974). Although these cases are primarily concerned with condi­
tions which may produce physical suffering, Judge Feinberg has 
correctly observed that "In this Orwellian age, punishment that 
endangers sanity, no less than physical injury by the strap, is
prohibited by the Constitution." Sostre v._McGinnis, 442 F .2d
178, 208 (2d Cir. 1971) (dissenting opinion).
23/ Such a deprivation, like the use of torture, has no place 
in any part of a prison. Thus it is of no significance to this 
case that deprivations of this character occurred in punitive 
isolation rather than in other parts of the prisons. Since

40



control of the prison staff. In the instant case, for example, 
the uniquely deplorable conditions discovered in 1969, includ­
ing the use of armed convicts as guards, was the result of the 
refusal of the Arkansas legislature to appropriate any funds 
whatever for the operation of the prison system, which was 
forced to operate from the proceeds of convict labor. 309 
F.Supp. at 372-381. The District Court proceedings and other 
developments led to the appropriation of such funds which in 
turn enabled the prison authorities both to comply with the 
Constitution and to operate the prison in a manner more consis­
tent with their professional judgment. The Constitution does 
not require the states to establish and operate prisons, but 
where they choose to do so they must provide the resources
necessary to fall within the limits set by the Eighth Amend 

’ 24/ 
ment.

Neither this nor other cases concerning the provision of 
basic necessities for prisoners involves a possible thwarting 
of the judgment, of particular importance under Eighth Amend­
ment, of the people or legislature of the State involved. See 
Gregg v.Georgia, 428 U.S. 153, 186-87 (1976). No state statute 
required the particular conditions found at Cummins or Tucker. 
State laws touching on the conditions of confinement generally 
set minimum, not maximum, standards; some like those of

23/ [Continued]
punishment of this sort is absolutely prohibited, the Court 
need not consider whether it was an excessive sanction for any 
class of disciplinary infractions, see Coker v. Georgia, 53 
L.Ed.2d 982 (1977), or whether any particular_infractions^could 
not constitutionally be punished at all. Robinson_v^— Cal ifornia 
370 U.S. 660 (1962) .
24/ See Gates v. Collier, 501 F .2d 1291, 1319-22 (5th Cir. 
1974).

41



Arkansas are generalized requirements of decent treat-
26/

ment, while others are more detailed. Where, as in 
27/

Arkansas, those statutes are supplemented by administra­
tive regulations, the regulations contain minimum rather 
than maximum standards. Thus in litigation regarding the 
constitutionality of prison conditions, those conditions do 
not ordinarily come with the imprimatur of societal endorse­
ments which exists in the case of punishments adopted by a 
legislature. Gregg v. Georgia, 428 U.S. at 179-80. Because 
prisons, unlike other institutions, are usually operated on
a closed basis with little opportunity for scrutiny by the 

28/
public or legislature, the severity of those conditions

25/

25/ Ark. Stat. Ann. 
to the institutional 
humanely with efforts

§46-116 requires that "Persons committed 
care of the Department shall be dealt with 
directed to their rehabilitation"

26/ See, e.g., New York Corrections Law §137 (1977 Supp.).
27/ The operation of all jails and prisons, including those 
under the control of the Department of Corrections, is subject 
to the rules and regulations of the Arkansas Criminal Detention 
Facilities Board, which is charged by statute with the obliga­
tion "[t]o develop minimum standards for the construction, 
maintenance and operation of such criminal detention facili­
ties." 4A Ark. Stat. Anno. §§46-1201, 1204(f) (1975 Supp.).
The conditions condemned by the district court appear to have 
violated the Board's standards as well as the Eighth Amend­
ment. See. notes 30-32 infra. See also Wright v. McMann,
460 F . 2d 126, 131 (2d Cir. 1972), cert, denied 409 U.S.
885 (1972).
2 8 /  See Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977)
("We cannot believe that the good people of a great state approved 
the prison situation demonstrated by the evidence in this case").

42



is rarely tested against community standards, and the judicial 
enforcement of the prohibition against cruel and unusual 
punishment will frequently be the only meaningful check 
on abuses inconsistent with the standards of decency embodied 
in the Eighth Amendment and prevalent in the community in which 
the prison operates. See Ingraham v. Wright, 51 L.Ed.2d 711, 
729-30 (1977).

Application of the constitutional requirements to the 
circumstances at a particular facility will raise a variety of 
of factual and legal issues. Some practices, such as the 
deliberate withholding of medical attention, are per se viola­
tions of the Eighth Amendment. Estelle v.Gamble, 50 L.Ed.2d 
251 (1977). Assessing other possible abuses, such as an 
alleged inadequacy of food or heat, will involve a question of 
degree. In other cases, although no single practice may 
violate the Constitution, the combined effect of several prac­
tices may do so. Gates v. Collier, 501 F .2d 1291, 1309 (5th Cir. 
1974). Some conditions, while not unconstitutional as a general 
practice, may be intolerable as applied to a particular inmate; 
thus although there is nothing wrong in the abstract with prison 
diet rich in sugar, it would be cruel and unusual punishment to 
provide only such food to a diabetic inmate. See Sostre v . 
McGinnis, 442 F.2d 178, 193, n.23 (2d Cir. 1971).

B. The District Court concluded that the conditions 
which existed in 1976 in punitive segregation constituted cruel 
and unusual punishment. That conclusion was reached reluctant­
ly, and was based on many weeks of hearings over seven years 
which, together with at least one personal inspection of the 
prison facilities involved, gave the District Judge a unique

- 43 -



knowledge of the facts. The District Court's conclusions were 
upheld by the Court of Appeals, which had also acquired a 
familiarity with the Arkansas prisons through a series of 
previous appeals in this and other cases. Petitioners do not 
here challenge the concurrent determination of the two courts 
below regarding the nature of punitive segregation as of 1976.
In order, however, to assess the propriety of the 30 day 
limitation, it is necessary to review the circumstances 
which gave rise to the finding of a constitutional violation.

The problems with which the District Court was particul-
29/

arly concerned were overcrowding, an inadequate diet and perva­
sive violence. Although the cells in the punitive wing at 
Cummins were originally designed for one inmate each, see n.19,
supra, and had at most two beds, id. at 275-276, they were at

30/
times used to house three or four inmates. Thus frequent­
ly one or two inmates were required to sleep on the floor. The 
Court noted that:

[convicts] being what they are, that means 
that the stronger and more aggressive inmates 
are going to occupy the bunks, and they are 
also likely to persecute the weaker inmate or 
inmates. A variant of this is that where 
three convicts are confined in a single cell, 
two of them are apt to team up against the 
third one. 410 F.Supp. at 276.

29/ Overcrowding which serves no conceivable penological 
purpose, is among the most common causes of unconstitutional 
prison conditions. See, e.g., Costello v . Wainwright, 51 L.Ed.2d 
372 (1977); Newman v. Alabama, 559 F .2d 283 (5th Cir. 1977); 
Williams v. Edwards, 547 F .2d 1206, 1211, 1215 (5th Cir. 1977).
30/ The Adult Detention Facility Minimum Standards for long 
term facilities, promulgated in December 1975 by the Arkansas 
Criminal Detention Facilities Board, provided in part: "The 
design of buildings should provide single occupancy rooms with 
a floor area of at least (70) seventy square feet per room and 
a clear floor-to-ceiling height of (8) eight feet in the 
interior." §15-1023, p. 48. See n. 27, supra.

44



The "grue" fed to inmates was alleged to contain ingredients
sufficient for adequate nutrition, but the amount of grue
served together with 4 slices of bread provided only 962 

31/
calories a day. Although this diet was supplemented every 
third day with a regular meal, there was substantial evidence 
that the guards deliberately gave only a partial serving of 
that meal to some inmates. 410 F.Supp. at 276, n.ll. Prac­
tically all inmates on a grue diet in punitive isolation lost 
weight. The extent to which this loss was due to the nutritive 
value of grue, and/or to the inability or unwillingness of
inmates to eat that deliberately unappetizing paste-like

32/
concoction, is unclear. Petitioners themselves recognized 
that the actual nutritional intake of inmates in punitive 
segregation was such as to require a thorough physical examina­
tion every two weeks. 505 F.2d at 207. The Court of Appeals 
had earlier compared grue to a bread and water diet which was 
"not seriously defended as essential to security . . . [and] 
amount [ed] therefore to an unnecessary infliction of pain." 505 
F.2d at 207, n. 9. It is clear that the use of grue served no 
purpose other than to punish inmates through a form of con-

31/ The average adult male needs between 2200 and 2900 
calories a day. The American Correctional Association Manual 
of Correctional Standards urges that prisoners in punitive 
segregation receive at least 3,100 calories a day. P.420 (1972). 
The National Council on Crime and Delinquency's recommended 
standards for prisoners in solitary confinement would require at 
least 2500 calories a day. Model Act for the Protection of 
Rights of Prisoners, §3(a) (1972). See also Gates v. Collier, 
501 F.2d 1291, 1305 (5th Cir. 1974) (requires at least 2000 
calories a day for prisoners in solitary confinement.
32/ Section 10-1001 of the Adult Detention Facility Minimum 
Standards, supra n. 27, states: "A good food program shall be
one of the Facility administrator's primary concerns; because 
of its effect on health, welfare, discipline and morale. ...
The inmates' food shall provide the nutrients needed for optimum 
health and should be plentiful and of a wide variety, well 
prepared, and well served." P.37.

- 45 -



trolled but chronic malnutrition; the role of the medical
personnel was not to prevent this partial starvation., but
merely to assure that it did not cause death or permanent 

33/injury.
The Court also found that its previous injunctive orders 

had apparently been disobeyed. Despite an earlier prohibition 
against brutality, it concluded prison guards continued 
to use excessive force. 410 F.Supp. at 277. Notwithstanding a 
prior directive that Muslim inmates enjoy the same right to 
practice their religion, and meet with clergy, as inmates 
of other faiths, there was substantial evidence that discrim­
ination against them continued. 410 F.Supp. at 280-81. Al­
though racial discrimination against inmates had already been 
prohibited, the Court felt that covert discrimination had not 
ended. 410 F.Supp. at 268. The District Court noted a number 
of other practices which aggravated these more pronounced 
abuses, including a lack of repairs, inadequate training and 
rotation of guards, and the employment of an overwhelmingly 
white work force to run the heavily black prisons. 410 F.Supp. 
at 265-68, 277, 280. The Court also noted that the overcrowd­
ing and sanitary conditions in the punitive wing contributed to 
the spread of contagious diseases. 410 F.Supp. at 258-9.

33/ The special diet, even if nutritionally adequate, would 
still present serious constitutional difficulty. Forcing 
inmates to eat food deliberately prepared in an offensive or 
unpalatable manner is a form of punishment offensive and 
largely unknown to civilized practice. The "recipe" for grue 
is similar to the practice condemned by the American Correctional 
Association of "Mix[ing] several types of foods together in a 
dish so that the prisoner's fare closely resembles a meal set 
out for an animal to eat." Manual of Correctional Standards, p. 
420. (1972).

- 46 -

t



The injunctive relief awarded by the District Court was 
considerably narrower than the wide range of practices which 
gave rise to the constitutional violation. The Court forbade 
the housing of more than two men in a one-man cell except in an

34/emergency, stopped the serving of grue and directed the
petitioners to provide inmates with a nutritionally adequate 

35/diet, and limited the period during which an inmate could
36/

be confined in punitive isolation to 30 days. The Court 
reaffirmed, but did not significantly expand, its previous 
injunction against racial and religious discrimination. The 
petitioners were instructed to "do more" about recruiting 
minority guards, but were left free to decide how this should 
be done. The Court ordered the petitioners to arrange for a 
study for the medical and sanitary conditions at the prisons, 
including the punitive wing at Cummins, but again the peti­
tioners were made initially responsible for framing the study 
and implementing any resulting recommendations. Although the 
District Judge made clear his concern that changes were neces­
sary in other areas, the court's injunction did not require the 
petitioners to take any specific action regarding the rotation, 
training, or number of guards, or the repairing of broken or 
worn out facilities, and merely noted the Court of Appeals' 
concern about the levels of light, heat and ventilation. Thus,

34/ 410 F.Supp. at 277
35/ 410 F.Supp. at 277
36/ 410 F .Supp. at 278

47



to a substantial degree the District Court continued its 
earlier approach of noting the existence of constitutionally 
suspect practices but refraining from issuing detailed injunc­
tive requirements in the hope that petitioners would act 

37/
without them.

C. There are a number of important issues of consti­
tutional law which, although suggested by petitioners' brief, 
are not presented by this case and were not the subject of the 
proceedings below.

This case does not present the question of whether
38/

indefinite punitive segregation is unconstitutional per se.
The district court was not asked to fashion, and did not
adopt, any such per se rule. Its opinion declared only that
"segregated confinement under the punitive conditions that had
been described" in its exhaustive opinion violated the Eighth
Amendment. 410 F.Supp. at 278. The primary if not exclusive
impact of this decision is on the operation of the East

39/
Building at the Cummins facility. While other lower 
courts in other cases have been asked to declare such indefi-

37/ We do not suggest that this approach was necessary or 
even proper. On the contrary, while a district court may 
properly invite prison officials to submit a remedial plan, and 
take note of their comments on plans that may be prepared by 
another party or the court, the court must assure that some 
plan to remedy the constitutional violation is put into effect 
as soon as practicable after the finding of liability. See 
Green v. School Board of New Kent County, 391 U.S. 430, 439° 
(1968).

38/ The petition for writ of certiorari, and petitioners' 
phrasing of the Third Question Presented, may have suggested 
this was the substantive issue in controversy.
39/ At the time of the court's opinion only 3 inmates were in 
punitive isolation at Tucker. See note 18 supra.

48



nite isolation impermissible in all cases, no such determina­
tion was made in this case. Even those courts which have 
addressed that issue and concluded that indefinite segrega­
tion is not unlawful per se have emphasized that such segrega­
tion might be unconstitutional "depending on the conditions of 
segregation". Sostre v. McGinnis, 442 F .2d 178, 193, n.23 (2d. 
Cir.1971).

There is no dispute in this case as to whether the 30
days of punitive isolation permitted by the District Court is
too short to serve as adequate punishment for any particular

40/
major infraction. If, as we urge infra, some limit on the 
use of punitive segregation was appropriate, petitioners do not 
urge that a period other than 30 days should have been 
chosen. On the contrary, petitioners' own internal regula­
tions prohibit the imposition for a particular offense of more 
than 15 days of punitive isolation, See, note 11 supra.
The maximum period set by the District Court was consistent

41/with those suggested by corrections experts. As the

40/ Petitioners' Notice of Appeal limited the substantive 
issue on which review was sought to those portions of the 
district court orders which "prohibit the sentencing of inmates 
to confinement in punitive isolation for indeterminate periods 
of time for major disciplinary infractions." Although this 
suggested that petitioners sought on appeal only the right to 
impose a sentence over 30 days for a particular infraction, 
petitioners, as we note, have never had such a practice.
4 1 /  See, e.g., American Correctional Association, Manual 
of Correctional Standard, 414—15 (maximum 15 days); American 
Law Institute, Model Penal Code §304.7(3) (Proposed Official 
Draft 1962) (Maximum 30 days); American Bar Association, 
Standards Relating to the Status of Prisoners (Tentative 
Draft), §3.2(a)(iii) (30 days). National Advisory Commission 
Criminal Justice Standards and Goals, Corrections, p. 31 (10 days).

The maximum period of punitive confinement permitted by 
the Geneva Convention Relative to the Treatment of Prisoners of 
War is also 30 days. 6 United States Treaties 3317, 3364 (1949).

49



Distr ic 
use of 
punish

t Court noted, its order does not interfere with the 
administrative segregation or criminal prosecution to 
offenses in lieu of, or in addition to, up to 30 days of

punitive isolation. 410 F.Supp. at 278.
The District Court's order presents no significant

limitation on the ability of 
major infractions. Ten days 
the lengthy opinion of March 
251, petitioners filed a Mot 
that motion stated:

petitioners to punish a series of 
after the District Court entered 
19, 1976, reported at 410 F.Supp. 

ion to Alter or Vacate. Item IV of

Respondents respectfully request that the Court 
clarify its injunction prohibiting incarceration 
of inmates on punitive [segregation] not to exceed 
thirty days. The respondents are unclear as to 
the proper procedure to follow if an inmate commits 
a new disciplinary offense warranting an additional 
sentence of punitive segregation while incarcerated 
in punitive segregation.
The District Court issued a Clarifying Memorandum Opinion 

on April 2, 1976, making clear that the petitioners could
impose successive sentences for successive major infractions:

If an inmate confined in punitive isolation 
or punitive segregation commits while so confined 
a serious or major disciplinary infraction, and 
particularly one involving violence or attempted 
violence directed at prison personnel or other 
inmates or one involving serious vandalism directed 
against state property, the inmate may be proceeded 
against in a major disciplinary proceeding, with 
notice and hearing, just as though the offense had 
been committed by the inmate while living in general 
population. And if he is found guilty he may be 
sentenced to additional time in punitive confine­
ment, which time may extend beyond the expiration of 
the basic maximum thirty day period specified in 
the court's Third Supplemental Decree.42/

The District Court cautioned that this authority was not to be
42/

abused to circumvent the 30 day limitation.

Clarifying Memorandum Opinion, April 2, 1976, p. 3. A. 188. 
Id, pp., 3-4. A. 188.

42/
43/

50



The practice which was ended by the district court and
which is the subject of this appeal was one of confining an
inmate in punitive isolation for an indefinite period until prison
authorities were persuaded that the inmate had developed "the
proper attitude". The District Court found that

[w]hile most inmates sentenced to punitive isolation 
are released to population within less than four­
teen days, many remain in the status in question # 
for weeks or months depending upon their attitudes 
as appraised by prison personnel. 410 F.Supp. at 
275.

The petitioners' written Disciplinary Procedures seem to 
contemplate this exception to their usual 15 day limitation on 
punitive segregation.

Ordinarily no inmate should be retained in punitive 
segregation on restrictive diet more than 15 
days, and normally a shorter period if sufficient.
Punitive segregation is not for indefinite or 
permanent segregation. . . . Fifteen days should be
the maximum time spent in punitive segregation.
Recalcitrant inmates at the end of this period 
should be fed a normal diet. After two or three 
days, depending upon physical condition, he may be 
returned to a restricted diet and the procedure 
continued.44/

Petitioner Hutto testified that punitive isolation for more
than two weeks was used only for inmates who were "recalci-

45/
trant" and "hostile". The sole practical effect of the 
contested portion of the District Court order was to restrict 
this use of punitive isolation; that order did not prohibit

44/ Arkansas Department of Corrections, Disciplinary Proce­
dures, p. 14.
45/ 1975 Transcript, Volume 23, , P- 47.

51



the use of any other methods for dealing with recalcitrant or
46/

hostile prisoners. 410 F.Supp. at 278.
We have grave doubts as to the constitutionality of 

imposing any serious sanctions until an inmate changes a 
"bad attitude". This Court in Wolff v. McDonnell, 418 U.S.
539, 571 (1974), held that an inmate was entitled prior to the 
use of solitary confinement or other "major changes in the 
conditions of confinement" to a written notice of charges, 
a written statement of the evidence relied on, and an opportu­
nity to call witnesses and present documentary evidence. These 
procedures were not followed in making decision to retain for 
longer than 15 days an inmate with a "bad attitude", and it is
difficult to see how they could have been in light of the

47/
vagueness of that standard. Unlike a civil contempt pro­
ceeding, in which the incarcerated individual can obtain his 
release by agreeing to perform some clearly specified act, an 
inmate in punitive isolation may well have no idea what 
he must do to win his release. Punitive sanctions have tradi­
tionally been imposed in Anglo-American jurisdictions only for

46/ The District Court was not asked to consider and did not 
decide whether the use of indefinite administrative segregation 
for this purpose is constitutional. Although that question is 
thus not before this Court, respondents believe that that 
practice is also unlawful.
47/ For an example of the potential for abuse inherent in a 
policy of using indefinite sanctions to make a prisoner "sub­
servient and break him down", see Wright v. McMann, 321 F.Supp. 
127 (N.D.N.Y. 1970), aff'd 460 F.2d 126 (2d Cir. 1972), cert 
denied 409 U.S. 885 (1972).

52



a specific prohibited action; the imposition of such a sanction 
for a "bad attitude" bears a great resemblance to the crime of 
status condemned in Robinson v. California, 370 U.S. 660 
(1962). In the instant case, however, the general validity of 
this practice need not be decided, since the district court's 
decision imposing a 30 day limit on punitive isolation has the 
effect of precluding the use of punitive isolation for this 
purpose.

D. The issue thus presented by the 30 day limitation 
is whether the District Court exceeded its authority in includ­
ing that provision in its order remedying the clear and undis­
puted constitutional violation. In fashioning a remedy for a 
constitutional violation "the scope of a district court's 
equitable powers to remedy past wrongs is broad, for breadth 
and flexibility are inherent in equitable remedies." Milliken 
v. Bradley, 53 L.Ed.2d 745, 756 (1977). The District Court 
enjoyed considerable discretion in fashioning a workable and 
effective remedy so long as the means chosen was related 
to the constitutional violation, was designed to restore the 
victims to the position they would have occupied in the absence 
of the violation, and did not unnecessarily interfere with 
legitimate prerogatives of state or local authorities. Id. at 
755-756. Those requirements were clearly met in the instant 
case.

A violation of the constitutional prohibition against 
cruel and unusual conditions of incarceration is often a 
function of both the conditions of incarceration and the 
length of time the inmate is subjected to them. See 410 
F.Supp. at 275. Denial of a bed, nutritious food, medical

53



care, bathing facilities and/or exercise for several hours 
would not ordinarily raise constitutional problems, but such a 
denial for a period of weeks would amount to an impermissible 
"wanton and unnecessary infliction of pain". Gregg v .
Georgia, 428 U.S. 153, 173 (1976). While other deprivations 
might be lawful for even a period of weeks, "[i]n some in­
stances, depending upon the conditions of the segregation, and 
the mental and physical health of the inmate, five days or even 
one day might prove to be constitutionally intolerable"
Sostre v. McGinnis, 442 F 2d 178, 193, n. 23 (2d Cir. 1971).
See also, LaReau v. MacDougal, 473 F .2d 974, 978 (2d Cir.
1972), cert den. 414 U.S. 878 (1973). Where, as here, the condi­
tions and period of incarceration combine to create a consti­
tutional violation, a district court may seek directly to remedy 
that violation by ordering an amelioration of the intolerable 
conditions, a shortening of the period during which they may be
endured, or both. In the instant case the district court acted

48/
reasonably in choosing the latter course.

The 30 day limitation served as well to remedy for all 
inmates, however long their sentence to punitive segregation, 
the unconstitutional egregious overcrowding. The total popula­
tion in the punitive wing at Cummins on any given day is a 
function of the number of inmates recently ordered into puni­
tive segregation and of the length of each sentence. For 
example, if on the average, ten inmates a day are remanded for a

48/ A similar remedy was employed in Gates v. Collier, 501 F .2d 
1291, 1305 (1974).

54



period of 5 days, the average population in punitive will be 
50; but if only one out of ten of these inmates is kept for 60 
days rather than 5, the average population in-punitive isola­
tion would be 105. For this reason the District Court properly 
concluded that the 30 day limitation would greatly help to
"take care of the problem of overcrowding" 410 F.Supp. at 

49/
278.

Many of the abuses which contributed to the unconstitu­
tionality of the punitive conditions were practices which it 
was particularly difficult for the District Court to detect 
or directly change; the 30 day limitation diminished the impact 
of these abuses in a manner more effective and less intrusive 
on the activities of the petitioners than an attempt by the 
district court to prescribe in great detail every operation 
of the punitive wing. The District Court's previous general 
injunctions against brutality and discrimination had not been 
fully complied with. Some portions of the 1976 order, forbidding 
certain practices for the first time, could not have been mean­
ingfully monitored and enforced without a subtantial ongoing 

_50/
federal effort. The District Court also noted a number of
practices, such as the training and deployment of guards, which 
contributed substantially to the unconstitutional conditions, but 
which it was understandably reluctant to directly interfere 
with. The District Court could have issued detailed

49/ In the hypothetical case described in the text applica­
tion of the 30 day limitation would reduce the average popu­
lation in punitive confinement from 105 to 75.
50/ One of the more serious problems of which the inmates 
complained was that at least one guard gave inadequate portions 
of food to inmates he disliked by shaking the serving spoon. The 
problems of enforcing a ban on this practice are obvious. See 
410 F.Supp. at 276, n.ll.

55



orders regarding these and other practices of which inmates had
complained, enforcing those orders through reporting require-

51/ments, grievance machinery, or other means. The District 
Court was free to choose, as it did, to reduce the unwarranted 
suffering caused by these practices by the simple expedient 
of reducing the amount of time any inmate could spend in the 
punitive wing where the resulting conditions prevailed. That 
choice was particularly appropriate in view of the difficulty 
which the District Court had already experienced in learning from 
the petitioners what they and their subordinates were doing in 
the institutions that were the subject of the litigation. See 
410 F. Supp. at 275, 281.

Through the seven years of litigation prior to the 
1976 decree the District Court, ever hopeful that the peti­
tioners would take voluntary corrective action if the court 
brought the facts and laws to their attention, exhibited great 
reluctance to directly order the petitioners to conform their 
conduct to the constitutional requirements. That optimism, 
regrettably, proved unjustified; the hearing in 1975 revealed 
that the constitutional violations noted in earlier opinions, 
particularly overcrowding, continued. After waiting in vain 
for literally years for the petitioners to implement a plan of 
their own to deal with these conditions, the District Judge had

51/ See Newman v. Alabama, 559 F.2d 283, 290 (5th Cir. 1977) 
(authorizes appointment of a Federal monitor for each of the 
state prisons).

56



no choice but to frame a remedy himself. That remedy, to a 
substantial degree, merely bound the petitioners to observe 
standards which they had established but not adhered to. The 
cells at the Cummins punitive wing were generally designed for 
one inmate each and had only two beds. 410 F.Supp. at 257. 
Defendants' written procedures forbade the use of indefinite 
punitive segregation and, provided, in light of the harsh 
conditions involved, that no inmate should ordinarily be kept 
there for more than 15 days. The District Court's Order, 
including establishing a 30 day maximum, assisted petitioners 
to bring their practices into conformity with their own princi­
ples, was the least intrusive injunctive order that would have 
remedied the constitutional violations, and was long overdue.

57



II. THE DISTRICT COURT HAD THE AUTHORITY TO AWARD 
COUNSEL FEES AGAINST THE DEPARTMENT OF CORREC­
TION
The District Court awarded counsel fees because the peti­

tioners had acted in bad faith. 410 F.Supp. at 281-285. The 
Court of Appeals held that such an award was also authorized by 
the Civil Rights Attorney's Fees Awards Act of 1976. 548 F .2d at
742. Each of these grounds provides an independent basis for 
sustaining the award.

A . Counsel Fees May Be Awarded Against State 
Officials Or Agencies Which Have Acted In 
Bad Faith

In Alyeska Pipeline Service Co. v. The Wilderness Society
421 U.S. 240 (1975), this Court reiterated the long standing
rule that a court may assess counsel fees in a case in which
the losing party has "acted in bad faith, vexatiously, wanton-

52/
ly, or for oppressive reasons . . .." 421 U.S. at 259.
This rule has been applied to a variety of forms of conduct,
including an intentional violation of the plaintiff's consti-

53/
tutional or statutory rights, an inexcusable default on

52/ See also Runyon v. McCrary, 427 U.S. 160, 183 (1976);
F.D. Rich v. v. Industrial Lumber Co., 417 U.S.
116, 129 (1974); Hall v. Cole, 412 U.S. 1, 5 (1973); Newman v . 
Piggie Park Enterprises, 390 U.S. 400, 402, n.5 (1968).
53/ The seminal case is Rolax v. Atlantic Coast Line R. Co., 186 
F.2d 473 (4th Cir. 1951), cited with approval in Rich, 40 L.Ed.2 at 
714, n.17, Hall, 412 U.S. at 5, and Vaughn v. Atkinson, 369 U.S. 
527, 530 (1962). See also Bell v School Bd. of Powhatan County,
321 F . 2d 494 ( 4th Cir. 1963 ), cited with approval in Rich and 
Hall; Richardson v. Communications Workers of America, 530 
F.2d 126, 132 (8th Cir. 1976); Doe v. Poelker, 515 F .2d 541,
547 ( 8th Cir., 1975) .

58



anan obligation to remedy a past or existing violation,
55/

unjustifiable defense of clearly unlawful conduct, or
dilatory, fraudulent, or otherwise improper litigation tac- 

56/
tics. Each of these forms of bad faith unfairly burdens 
not only the adverse party but also the federal courts. Cf. 
Illinois v. Allen, 397 U.S. 337, 347 (1970).

In the instant case the District Court made a factual 
finding that the petitioners "have acted in bad faith and 
oppressively and that the case falls within the 'bad faith' 
exception to the Alyeska rule." 410 F.Supp. at 284. The 
District Court based this finding on several distinct grounds: 
(1) petitioners had operated "a patently unconstitutional 
prison system" prior to the commencement of this action (2) the 
petitioners had shown persistent and increasing unwillingness 
to remedy intolerable conditions unless ordered to do so by the 
court, (3) although the plaintiffs repeatedly brought to light 
through discovery patterns of misconduct so egregious that 
petitioners recognized they had to be corrected, petitioners 
inexplicably failed to make inquiries of their own into what

54/

54/ Bradley v. Richmond School Board, 416 U.S. 696, 707, n.
10 (1974); Vaughn v. Atkinson, 369 U.S. at 530-31; McEnteggart 
v. Cataldo, 451 F.2d 1109, 1112 (1st Cir. 1971), cited with 
approval in Rich, Sims v. Amos, 340 F.Supp. 691, 694 (N.D. Ala. 
1972), aff'd 409 U.S. 942.
55/ Newman v. Piggie Park Enterprises, supra; Fairley v . 
Patterson, 493 F .2d 598, 606 (5th Cir. 1974).
56/ Universal Oil Products Co. v. Root Refining Co., 328 U.S. 

575, 580 (1946).

- 59 -

\



57/
was occurring in the prisons for which they were responsible, 
(4) despite a series of hearings and written and oral orders
from the court over the course of the litigation, constitu­
tional violations continued. 410 F.Supp. at 284-285. In view 
of the District Judge's unique familiarity with the conduct 
and attitude of the petitioners garnered over 7 years from 
numerous hearings, his finding of bad faith is entitled 
to particularly great weight.

The Court of Appeals, although relying primarily on the 
Civil Rights Attorney's Fees Awards Act, concluded that "the 
record fully supports the finding of the District Court that 
the conduct of the state officials justified the award under 
the bad faith exception enumerated in Alyeska Pipeline Service 
Co. v. Wilderness Society." 548 F.2d at 742, n. 6. Such a 
concurrent finding of fact by two courts below is not subject 
to review in this Court in the absence of extraordinary circum­
stances not present here. Berenyi v. Immigration Service, 385 
U.S. 630, 635 (1967); Graver Mfg. Co. v. Linde Co., 336 U .S. 
271, 275 (1949); see Runyon v. McCrary, 427 U.S. 160, 184 
(1976). The correctness of this finding does not appear to be 
questioned by petitioners.

The order of the district court provides
The court now awards counsel for petitioners 

the sum of $20,000.00 as an attorneys' fee on 
account of services performed by them in this 
litigation since the remand resulting from 
Finney v. Arkansas Board of Correction, 505 
F.2d 194 (8th Cir. 1974). The court also

57/ Compare Matter of Yamashita, 327 U.S. 1, 14-16 (1945).

- 60 -



directs that counsel be reimbursed for the 
reasonable and necessary expenses paid or in­
curred by them, including the expenses of em­
ploying law students to assist in the prepara­
tion of the case, since the remand, but not to 
exceed $2,000.00. Counsel should be able to 
agree on the amount of the expenses; if not, they 
can take up the matter with the court. These 
awards are to be paid out of Department of 
Correction funds.

Counsel for petitioners here objects to the last sentence
of this decree, directing that the fees and costs be paid out
of the funds of the Department of Corrections which are
under the control of the petitioners. If this objection is
sustained the rest of the order will stand, and the award will
still have to be paid by Mr. Hutto and the other petitioners,

58/
presumably out of their personal resources. Counsel for 
petitioners asserts that, although petitioners may be directed 
to pay the awarded sum, they may not be directed to do so out 
of Department funds.

The question of whether counsel fees are among the 
remedies ordinarily precluded by the Eleventh Amendment has 
been before the Court on three previous occasions. In Sims v. 
Amos, 340 F.Supp. 691, 695 (N.D. Ala. 1972), counsel fees were 
awarded against elected Alabama state officals in their offi­
cial capacity. The state attorney general appealed, claiming 
such an award was tantamount to the award of a money judgment 
against the State of Alabama in direct violation of the doc­
trine of sovereign immunity, but this Court unanimously

58/ Unlike the situation in Edelman v. Jordan, 415 U.S. 651, 
665 (1974), the payment of the award out of petitioners' 
personal funds is both possible, in light of the amount in­
volved, and entirely justifiable, since the bad faith relates 
to the personal conduct of Mr. Hutto and his predecessors.

61



421
affirmed the award without opinion. 409 U.S. 942. In
Alyeska Pipeline Service Co. v. The Wilderness Society,
U.S. 240 (1975), the majority, while finding no occasion to
discuss the Eleventh Amendment issue 421 U.S. at 269, n.
44, noted that the award upheld in Sims rested in part, as
here, on the bad faith of the defendants. 421 U.S. at 270, n.
46. In Bitzer v. Matthews, No. 75-283, decided sub, nom.
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the majority again
did not reach the issue, 427 U.S. at 457, but Mr. Justice
Stevens concurred on the ground that counsel fees, like other
litigation costs, were not subject to the Eleventh Amendment.
427 U.S. at 460. Certiorari was granted to decide this issue
in Stanton v. Bond, No. 75-1413, but the case was subsequently
remanded for consideration of the Civil Rights Attornerys' Fees
Act of 1976. 50 L.Ed.2d 581 (1976). The courts of appeals are

60/
divided on this question.

As initially adopted section 2 of Article III provides in 
part that "[t]he judicial Power shall extend to all cases, in 
Law and Equity, arising . . . between a State and Citizens of

11/

59/ This issue was discussed as well at the oral argument in 
Edelman v. Jordan, 415 U.S. 651 (1974), but was not mentioned 
in the opinions.
60/ Three circuits have held such awards permissible. Souza 
v. Travisono, 512 F .2d 1137 (1st Cir 1975); Class v. Norton,
505 F .2d 123 (2d Cir. 1974); Jordan'?. Fusari, 496 F .2d 646 (2d 
Cir. 1974); Brandenburger v. Thompson, 494 F .2d 885 (9th Cir.
1974) . Two circuits have concluded that the Eleventh Amendment 
applied to such awards. Jordan v. Gilligan, 500 F .2d 701 (6th 
Cir. 1974); Taylor v. Perini, 501 F .2d 899 (6th Cir. 1974); 
Skehan v. Board of Trustees, 503 F .2d 31 (3d Cir. 1974). Two 
circuits are divided. Thonen v. Jenkins, 517 F .2d 3 (4th Cir.
1975) (awards permissible); Hallmark Clinic v. North Carolina 
Dept, of Human Resources, 519 F .2d 1315 (4th Cir.(1975) (awards 
prohibited); Milburn v. Huecker, 500 F .2d 1279 (5th Cir. 1974) 
(awards permissible); Named Individual Member v. Texas Highway 
Dept., 496 F .2d 1017 (5th Cir. 1974).

- 62 -

\



another state . . . and between a State . . . and foreign . .
Citizens or Subjects." In 1798, in the wake Chisholm v.
Georgia, 2 Dali. (2 U.S.) 419 (1798), the Eleventh Amendment
was adopted to repeal this language. Unchanged since then, the
Eleventh Amendment provides:

The judicial power of the United States shall 
not be construed to exent to any suit in law 
or equity, commenced or prosecuted against 
one of the United States by Citizen of 
another State or by Citizens or Subjects 
of any Foreign State.

Although the amendment, read literally, merely deletes the
quoted language from Article III, it has been construed by this
Court also to limit the judicial power under other clauses of
Article III. In Hans v. Louisiana, 134 U.S. 1 (1890), the
Court extended the Eleventh Amendment immunity to suits against

61/
a state by its own citizens. In Hagood v. Southern, 117 
U.S. 52 (1886), the Court held that the Eleventh Amendment 
could be asserted to preclude relief against an individual 
defendant where the "real" defendant affected by the order was 
a State. 117 U.S. at 67. See also Ford Motor Co. v._Depart­
ment of Treasury, 323 US. 459, 464 (1945). It is this latter 
doctrine with which this case is concerned.

The fact that an order against a state official directs 
the offical to use or disburse state funds within his or her 
control does not, by itself, bring the order within the 
prohibition of the Eleventh Amendment. Ex parte Young, 209 
U.S. 123 (1908), held that the Eleventh Amendment did not

61/ In Employees v. Missouri Public Health Dept., 411 U.S.
279, 309-15 (1973) Justice Brennan, dissenting, expressed 
the view that Hans was wrongly decided, and that the Eleventh 
Amendment should not be applied to suits against state by 
its own citizens. Although we believe that Justice Brennan's 
analysis was correct, that issue need not be reopened in order 
to resolve this case.

63



preclude the federal courts from directing state officals to 
conform their conduct to the requirement of the Fourteenth 
Amendment. In Graham v. Richardson, 403 U.S. 365 (1971) and 
Goldberg v. Kelly, 397 U.S. 254 (1970), this Court upheld orders 
directed to state welfare officials which clearly had substantial 
fiscal consequences for the state treasuries involved.

In Edelman v. Jordan, 415 U.S. 651 (1974), this Court 
explained that the validity of an order affecting the use of 
state funds turned on whether the order was "in practical 
effect indistinguishable . . . from an award of damages 
against the State," 415 U.S. at 668, or was merely "ancillary" 
to an order directing state officials to conform their present 
and future conduct to the requirement of the federal Consti­
tution and laws. In Edelman this rule was applied to preclude 
the retrospective award of welfare payments which had been 
unlawfully delayed or withheld; the Court emphasized that such 
an award, however labeled, was indistinguishable from damages 
since "measured in terms of a monetary loss resulting from a 
past breach of a legal duty on the part of the defendant state 
officals." 415 U.S. at 668. Three years later in Milliken v . 
Bradley, 53 L.Ed.2d 745 (1977), this Court sustained an order 
directing Michigan officials to pay over $5 million in state 
funds to the Detroit School Board for the operation of certain 
programs established to remedy past racial discrimination. The 
order was deemed ancillary to and a necessary concomitant of 
the district court injunction establishing those remedial 
programs.

Although "the difference between the type of relief 
barred by the Eleventh Amendment and that permitted under Ex

64



parte Young will not in many instances be that between day 
and night," Edelman v. Jordan, 415 U.S. at 667, the application 
of that distinction in this case is largely resolved by this 
Court's decision in Fairmont Creamery v. State of Minnesota,
275 U.S. 70 (1927). In that case, arising out of a state court 
prosecution of the Fairmont Creamery Company, this Court 
overturned the Company's conviction and awarded it costs. 
Subsequently the state filed a motion to retax costs on the 
ground that such a monetary award violated the sovereignty and 
immunity of the state. This Court unanimously upheld its 
power to make such awards of costs against a state as "within 
the inherent authority of the court in the orderly adminis­
tration of justice as between all parties litigant." 275 U.S. 
at 74. The Court noted that the exercise of this authority was 
particularly appropriate and important where costs were awarded 
because the action was "a 'litigious case,' so-called," i.e. 
because the defendant had been unduly intransigent. Id.

As this Court noted in Fairmont Creamery, 275 U.S. at
77, the federal courts have traditionally awarded costs against
a state, directly or through its officials, when the state
becomes involved in litigation in a federal court in its own
name or on behalf of its officials. Since the Judiciary Act of 

62/
1789 the federal courts have been expressly empowered to 
award costs. Provisions authorizing, and at times requiring, 
the award of costs and expenses are to be found throughout the

62/ 1 Stat. 73, 93; Henkel v. Chicago, etc., R.R., 284 U.S.
444 (1932).

65



Federal Rules of Civil Procedure, the Federal Rules of
64/

Criminal Procedure, the Federal Rules of Appellate 
65/ 66/Procedure, the Rules of the Supreme Court, and the

67/
United States Code. These rules and statutes are literal­
ly applicable to all federal litigation, regardless of the 
identity of the parties, and have been uniformly applied even 
where the party liable for costs is a state or a state offi­
cial. The Clerk of this Court taxes costs against a losing 
party without regard to the official status of that party. 
Costs are routinely awarded by this Court against (a) state 
agencies which are the defendants in federal civil actions for 
injunctive relief, (b) state officials who are the defendants 
in federal civil actions for injunctive relief, (c) state 
officials who are the defendants in federal habeas corpus 
actions, (d) state agencies which are the defendants in civil 
actions originating in state court, and (e) states in criminal 
prosecutions originating in state courts. A list of the cases 
in which such awards were made in October Terms 1970-76 is set 
out in the Appendix to this brief.

That awards of costs are not subject to the Eleventh 
Amendment is consistent with the analysis in Edelman. The

63/

63/ Federal Rules of Civil Procedure, Rules 30(g), 37(a)(4), 
41(d), 43(f), 54, 55(b)(1), 56(g), 65(c), 68.
64/ Federal Rules of Criminal Procedure, Rule 38(a)(3).
65/ Federal Rules of Appellate Procedure, Rules 7, 38, 39.
66/ Rules of the Supreme Court, Rules 14, 18, 36(3), 57, 60.
67/ See e.g. 28 U.S.C. §§1331, 1332, 1446, 1911-29, 2101(f),
2103.

66



amount of costs, unlike damages, are not measured by the 
forseeable amount of harm caused by the defendant's violation 
of its legal responsibilities. Costs are only ancillary to any 
relief which may be prayed for in a complaint, and are not 
considered in assessing whether a case presents the $10,000 in 
controversy required by 28 U.S.C. §1331. If an action were won 
by default, or settlement, immediately after filing, there 
would be virtually no costs incurred. The ultimate award of 
costs in an injunctive action is, like the expenses incurred by 
the state's own counsel, an ancillary fiscal aspect of the 
conduct of litigation for prospective relief.

Petitioners in this case do not appear to deny that, as 
a general matter, the federal courts may award costs against 
states and state officials. Such awards are the normal inci­
dent of a successful action for declaratory or injunctive 
relief, and their "ancillary effect on the state treasury is a 
permissible and often an inevitable consequence of the princi­
ple announced in Ex Parte Young." Edelman v. Jordan, 415 U.S. 
651, 668 (1974). Were this Court to held such awards impermis­
sible under the Eleventh Amendment, it would be required to 
rule unconstitutional insofar as they apply to state officials, 
every federal court rule and every provision of the United 
States Code authorizing awards of costs.

Petitioners maintain, however, that counsel fees cannot 
be included among the awardable costs, and that such fees are 
really a form of damages. We note at the outset that if 
petitioners' contention is sustained, then the award of counsel 
fees in this case must be paid by Arkansas as a matter of 
state law. Arkansas Act 543 of 1977, which became law on

67



March 18, 1977 provides in pertinent part that the State "shall 
pay actual damages adjudged by a state or federal court . . . 
against officers or employees of the State of Arkansas . . . 
based on an act or omission by the officer or employee while 
acting without malice and in good faith within the course and 
scope of his employment and in the performance of his official 
duties." Whatever the decision of this Court, the result in 
this case will remain the same. If the Court concludes counsel 
fees are awardable as costs, it will sustain the District Court 
order directing the fee be paid from state funds; if the Court 
concludes that counsel fees are "really" damages, it may 
overturn the requirement that the fee be paid from state funds, 
but the state will then pay it voluntarily in place of Mr.
Hutto pursuant to Act 543.

There is, we believe, no basis for distinguishing counsel 
fees from other items of costs, such as transcripts, printing 
expenses, filing or docketing fees, or the expenses of wit­
nesses, experts or interpreters. Awards of counsel fees, where 
proper, have long been regarded as a part of costs. The 
earliest authority for such awards in England was contained in
a statute adopted in 1278 providing for taxation of "costs of

68/
his writ purchased." The first congressional enactments 
regulating the award of counsel fees treated them as an item of 
taxable costs. 1 Stat. 93, 332; 10 Stat. 161 (1853); see 28 
U.S.C. §1923(a). In recent years Congress has adopted more 
than a score of statutes authorizing awards of attorneys' 
fees; in virtually every case that award was made an item

68/ Statute of Gloucester, 1278, 6 Edw. 1, c. 1; Fleischman 
Distillinq Corp. v. Maier Brewing Co., 386 U.S. 714, 717, n.7 
(1967).

68



to be included as part of the taxable costs. In England
69/

69/ See e.g. 5 U.S.C. §552(a)2E (court may assess "attorneys' 
fees and other litigation costs"); 7 U.S.C. §210(f) (success­
ful petitioner to be allowed "a reasonable attorney's fee to 
be taxed and collected as part of the costs of the suit"); 7 
U.S.C. §499g(b) (successful petitioner to be allowed "a 
reasonable attorney's fee to be taxed and collected as a part 
of the costs of the suit"); 15 U.S.C. §15 (plaintiff in anti­
trust action to recover "the cost of suit, including a reason­
able attorney's fee"); 15 U.S.C. §72 (person injured by illegal 
importation to recover "the cost of the suit including a 
reasonable attorney's fee"); 15 U.S.C. §77k(e) (court may 
award to prevailing party "the costs of such suit, including 
reasonable attorney's fee"); 15 U.S.C. §78i(e )_(court in 
securities case may "assess reasonable costs, including 
reasonable attorneys' fees"); 15 U.S.C. §78r(a) (court may 
"assess reasonable costs incuding reasonable attorneys' 
fees"); 17 U.S.C. §116 (court in patent action may award 
"a reasonable attorney's fee as part of the costs"); 18 U.S.C. 
§1964(c ) (person injured by racketeering may sue and recover 
"the cost of the suit, including a reasonable attorney's fee"); 
20 U.S.C. §1617 (court in school desegregation case may allow 
"a reasonable attorney's fee as part of the costs"); 33 U.S.C. 
§1365(d) (court may award "costs of litigation (including 
reasonable attorney and expert witness fees)"); 33 U.S.C. 
§141(g)(4) (court may award "costs of litigation (including 
reasonable attorney and expert witness fees)"); 42 U.S.C. 
§1857h-2(d) (court may award "costs of litigation (including 
reasonable attorney and expert witness fees)"); 42 U.S.C. 
§2000a-3(b) (court in public accommodations case may allow 
"a reasonable attorney's fee as part of the costs");
42 U.S.C. §2000e-5(k) (court in employment discrimination 
case may allow "a reasonable attorney's fee as part of the 
costs"); 42 U.S.C. §4911(d) (court may award "costs of 
litigation (including reasonable attorney and expert witness 
fees)"); 45 U.S.C. §153(p), (court in Railway Labor Act case 
must allow prevailing employees "a reasonable attorney's 
fee, to be taxed and collected as part of the costs of 
the suit"); 46 U.S.C. §1227 (successful plaintiff to recover 
"the cost of suit, including a reasonable attorney's fee"); 47 
U.SC. §206 (court to award "reasonable counsel or attorney's 
fee" which "shall be taxed and collected as part of the costs 
in the case"); 49 U.S.C. §8 (court to award "reasonable 
counsel or attorney's fees" which "shall be taxed and 
collected as part of the costs of the case"); 49 U.S.C.
§16(2) (court to award "reasonable attorney's fee, to 
be taxed and collected as part of the costs of the suit");
49 U.S.C. §908(b) (court to award "a reasonable counsel or 
attorney's fee" which "shall be taxed and collected 
as part of the costs in the case").

69



costs have traditionally included counsel fees; American 
practice diverged from this rule in early 19th century when 
Congress and the state legislatures adopted statutes severely
limiting the- amount of fees ordinarily includable as part of

70/
costs. Since 28 U.S.C. §1923 authorizes but so limits in 
amount the award of counsel fees as costs, this Court in 
Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240 
(1975), concluded the statute precluded an open ended power to 
award fees as a matter of equitable discretion. In Flanders v. 
Tweed, 15 Wall (82 U.S.) 450 (1873), the Court held that a jury 
could not award an fee in excess of that permitted by §1983 by 
denoting the additional counsel fees as damages rather than 
costs. 15 Wall at 452-53. See also, Trustees v. Greenough,
105 U.S. 527 (1882).

Counsel fees differ from other items of costs only in that, 
because of the American Rule, 28 U.S.C. §1923, and the variety of 
statutes noted at n.6j), whether counsel fees can be taxed varies 
considerably from case to case, whereas docketing fees and 
transcripts are ordinarily taxable costs in all cases. The 
characteristics of other items of costs which render them 
ancillary under the standard of Edelman are also true of

70/ Mr. Cormick on Damages, §60 (1935); Goodhart, Costs, 38 
Yale Law Journal 849, 873 (1929). Professor Goodhart suggests 
the statutory allowances for fees may have been a reasonable 
approximation of actual fees when these statutes were first 
enacted, but were rendered nominal by the decades of inflation 
which followd. Id.

70



counsel fees. The amount of those fees are not measured by 
some past injury, they are not the gravamen of the action, and 
they will not, to a significant degree, be incurred or awardable 
if the action is resolved immediately after it is commenced. 
Frequently the fiscal impact of a counsel fee award will be minor in 
comparison with that of the injunctive relief which is the 
primary focus of the action. In the instant case, for example, 
the litigation resulted in the constrution of a $ 546,000 building at 
Cummins, the cost of which was 27 times greater than the fee 
awarded. In light of these considerations the District Court 
correctly concluded that the Eleventh Amendment does not affect 
awards of counsel fees.

Respondents further maintain that the adoption of the 
Fourteenth Amendment worked a pro tanto repeal of the Eleventh 
Amendment, and that the Eleventh Amendment thus has no applica­
tion in a Fourteenth Amendment case such as this. This Court 
noted the existence of this question but did not decide it in 
Milliken v. Bradley, 53 L.Ed.2d 745, 762, n.23 (1977); see also 
Edelman v. Jordan, 415 U.S. 651, 694, n.2 (1974) (Marshall, J., 
dissenting). Repondents concur in the views as to the impact of 
the Fourteenth Amendment are set out in the Brief Amicus Curiae 
of the N.A.A.C.P. Legal Defense and Educational Fund, Inc. in 
Edelman v. Jordan, No. 72-1410. If the Court concludes that the 
Eleventh Amendment does not apply to awards of counsel fees it 
will not be necessary to decide to what extent that Amendment was 
modified by the subsequent enactment of the Fourteenth Amendment.

71



B. The Civil Rights Attorney's Fees Awards Act 
of 1976 Authorized Awards of Counsel Fees 
Against States In Actions Under 42 U.S.C.
§1983

The Civil Rights Attorney's Fees Awards Act of 1976,
Public Law 94-449, now codified in 42 U.S.C. §1988, was enacted 
in response to this Court's decision in Alyeska Pipeline Service 
Co. v. Wilderness Society, 421 U.S. 240 (1975). Prior to Alyeska 
a number of lower courts had concluded that counsel fees could be 
awarded to prevailing plaintiffs who, acting as "private attor­
neys general", had vindicated important public policies; this 
private attorney general rule was applied with particular fre­
quency in civil rights cases. 421 U.S. at 270, n.46. In Alyeska 
the Court held that the decision to award counsel fees under this 
rationale was "a policy matter that Congress has reserved for 
itself". Noting that "Congress itself presumably has the power 
and judgment to pick and choose among its statutes and to allow 
attorneys' fees in some, but not others", 421 U.S. at 264, the 
majority held that counsel fees should only be allowed to 
private attorneys general under statutes which Congress had 
selected for such awards. In Runyon v. McCrary, 427 U.S. 160 
(1976) decided prior to the passage of P.L. 94-449 the Court 
ruled that 42 U.S.C. §1988 as then written did not provide 
such congressional authorization for awards of counsel fees in 
actions brought under 42 U.S.C. §1983. 427 U.S. at 182-86.

Within a few months of Alyeska numerous proposals was 
introduced in Congress to provide for civil rights cases the 
express congressional mandate for awards of counsel fees

72



required by that decision. Acting with unusual dispatch
21/Congress completed hearings within that year, The Senate

and the Senate and House Judiciary Committees reported out
73/

21/

similar bills in June and September of 1976. Both reports
emphasized that the basic purpose of the legislation was "to
remedy anomalous gaps in our civil rights laws created by the

74/
United States Supreme Court decision in Alyeska" and to 
revive the practice sanctioned by numerous lower courts, but
disapproved by footnote 46 of the Alyeska opinion, of awarding

75/
fees to private attorneys general in civil
After debates emphasizing Congress' intent
authorization of fees required by Alyeska,
filibuster, both houses approved the bill,

76/

rights cases, 
to supply the express 
the Senate ended a 
and it was signed into

law on October 19, 1976.

71/ H.R. 8726, 7828, 7968, 7969, 8220, 8221, 8821, 8742, 
8743, 9552, 94th Cong., 1st Sess.
72/ Hearings on the Awarding of Attorneys' Fees Before the 
Subcommittee on Courts, Civil Liberties and the Administration 
of Justice of the House Judiciary Committee, 94th Cong., 1st 
Sess. (1975). The Senate which had held extensive hearings on 
the problem of counsel fees prior to Alyeska, did not hold 
additional hearings. Hearings on Legal Fees Before one Sub­
committee on Representation of Citizen Interests of the Senate 
Judiciary Committee, 93rd Cong., 1st Sess. (1973).
73/ S. Rep. No. 94-1011; H.R. Rep. No. 94-1558.
74/ S. Rep. No. 94-1011, p. 1.
75/ H.R. Rep. No. 94-1558, p. 2.
76/ Representative Drinan, the House sponsor, explained:

"The Civil Rights Attorney's Fees Award Act of 1976,
S. 2278 (H.R. 15460) is intended to restore to the 
courts the authority to award reasonable counsel 
fees to the prevailing party in cases initiated 
under certain civil rights acts. The legislation is 
necessitated by the decision of the Supreme Court in 
Alyeska Pipeline Service Corp against Wilderness 
Society, 421 U.S. 240 (1975).

73



Public Law 94-559 provides:
"In any action of proceeding to enforce a 

provision of Sections 1977, 1978, 1979, 1980, 
and 1981 of the Revised Statutes [42 U.S.C. 
§§1981-1983, 1985, 1986] , title IX of Public 
Law 92-318 [20 U.S.C. §§1681, et seq.] or in 
any civil action or proceeding, by or on 
behalf of the United States of America, to 
enforce, or changing a violation of, a provi­
sion of the United States Internal Revenue 
Code [26 U.S.C. §§ et seq.], or Title VI of 
the Civil Rights Act of 1964 [42 U.S.C.
§§2000d et seq.], the court in its discretion, 
may allow the prevailing party, other than the 
United States, a reasonable attorney's fee as 
part of the costs."

7 6 [Continued]
122 Cong. Rec. H12159 (daily ed. October 1, 1976); see also 
id, pp. H12150 (remarks of Rep. Anderson), H12154 (remarks 
of Rep. Railsback), H12155 (remarks of Rep. Seiberling),
H12181 (remarks of Rep. Railsback), H12162-63 (remarks of Rep. 
Kastenmeier), H12163 (remarks of Rep. Fish), H12164 (remarks 
of Rep. Holtzman), (remarks of Rep. Seiberling). Senator 
Kennedy, the Senate manager of the bill, stated

" [t]he Civil Rights Attorneys' Fees Awards Act authorizes 
Federal courts to award attorneys' fees to a prevailing party 
in suits brought to enforce certain civil rights Acts. This 
bill would close a series of loopholes in our civil rights 
laws created by the Supreme Court's Alyeska decision last year, 
and would reestablish a uniformity in the remedies available 
under Federal laws guaranteeing civil and constitutional 
rights."

122 Cong. Rec. S.16252 (daily ed., September 21, 1976).
Senator Tunney, the Senate sponsor, noted that the bill

"When enacted, will close a loophole in our present civil 
rights enforcement laws.
In Alyeska Pipeline Service Corp. v. Wilderness 

Society, 421 U.S. 240 (1975), the Supreme Court expressly 
stated that the lower Federal courts had no inherent equity 
power to award attorney's fees in civil rights cases absent 
statutory direction. This bill creates the necessary authori­
zation and is addressed to the key questions raised in the 
opinion."
122 Cong. Rec. S.16491 (daily ed., September 23, 1976); see 
also _id. at 51651 (remarks of Senator Mathias) (daily ed. ,
September 21, 1976 ), S. 16431 (remarks of Senator Hathaway 
(daily ed., September 23, 1976).

74



The statute expressly modifies the remedies available in a 
§1983 action, thus providing the congressional authorization for 
private attorney general awards required by Alyeska and found 
missing by Runyon.

While authorizing an award of counsel fees in favor
of "the prevailing party," Public Law 94-559 does not specify
against whom this or other awards of costs are to be made.
Ordinarily costs, like other relief, are awarded against the
named defendant in a civil action. In addition, a non-party
who has an interest in the outcome of litigation and who fully
participates therein is normally deemed liable to judgment
just as if it were a formal party. "(0)ne who prosecutes or
defends a suit in the name of another, to establish and protect
his own rights, or who assists in the prosecution or defense of
an action in aid of some interest of his own, and who does so
openly, to the knowledge of the opposing party, is as much bound
by judgment, ... as he would be if. he had been a party to the
record." Souffront v. Compagnie des Sucreries, 217 U.S. 475,

77/
486-87 (1910). A state or other entity may elect

77/ Grimes v. Chrysler Motors Corp., ____ F .2d ____ (2d
Cir. 1977); Dicks Press Guard Mfg. Co. v. Bowen, 229 F. 
193, 196 (N.D. N.Y.), aff'd, 229 F.575 (2d Cir.) cert. 
denied, 241 U.S. 671 (1915); Ocean Accident & Guarantee 
Corp.-v. Felgemaker, 143 F .2d 950, 952 (6th Cir. 1944); 
Eagle Mfg. Co. v. Miller, 41 F.351, 357 (S.D. Iowa 1890); 
Maynard v. Wooley, ____ F.Supp. ____ (D.N. H. 1977).

- 75 -

\



to stand aloof from litigation against an official and to thus 
seek to preserve intact any immunity it may enjoy, but if it 
chooses to join in the litigation and to seek to win and enjoy 
the benefits of a successful defense, it must run the same 
risks, including the possibility of an award of costs, that must 
be run by an ordinary party should that defense fail. Compare 
2A Moore's Federal Practice 1(12.13.

The rule in Souffront is of obvious importance in 
litigation under 42 U.S.C. §1983. Such actions must usually be 
brought against a city or state official rather than against
the city or state itself. City of Kenosha v. Bruno, 412 U.S.

78/
507 (1973); Monroe v. Pape, 365 U.S. 167 (1961). In 
most of these cases the city or state assumes control of 
the defense of the litigation, either to vindicate the validity 
of the challenged practice or to protect the defendant officials 
from monetary awards. See Scheuer v. Rhodes, 416 U.S. 232 
(1974). When that occurs it is the city or state, rather than 
the individual defendants, whose unsuccessful defense of the 
action requires the plaintiff to incur attorneys' fees and

78/ To what extent city or state agencies are immune from 
suits remains an open question, as does the extent to which, 
notwithstanding Kenosha and Monroe, a defendant official in a 
section 1983 action can be directed to expend government funds. 
See Monnell v. Department of Social Services, No. 75-1914; 
Milliken v. Bradley, 53 L.Ed.2d 745 (1977). The instant 
proceeding resulted from a consolidation of a substantial number 
of prisoner suits filed in the District of Arkansas from 1969 to 
1972. In two of these actions the Arkansas Department of 
Corrections was a named defendant. Pittman v. Arkansas Depart­
ment of Corrections, PB-72-C-15, Russell v. Department of 
Corrections, PB-72-C-155.

- 76 -

l



costs.__In the instant case the Attorney General of Arkansas
assumed control of the litigation from the outset and conducted

79/
the lengthy and at times intransigent defense. Under such 
circumstances, as here, any award of costs would properly be made 
payable by the city or state rather than named defendants.
Public Law 94-559 includes counsel fees among the costs which may 
be awarded against the named defendant or interceding interested 
government, as justice may require.

The legislative history of Public Law 94-559 unambiguous­
ly demonstrates that Congress intended that the statute be 
applied in this manner, and that awards in cases such as this be 
paid out of state funds. The Senate Report stated:

"As with cases brought under 20 U.S.C.
§1617, the Emergency School Aid Act of 1972, 
defendants in these cases are often State 
or local bodies or State or local officials.
In such cases it is intended that the 
attorneys' fees, like other items of costs, 
will be collected either directly from the 
official capacity, from funds of his agency 
or under his control, or from the State or 
local government (whether or not the agency 
or government is a named party)."

See Rep. No. 94-1011, p. 5. Similarly the House Report noted
that:

"governmental officals are frequently the 
defendants in cases brought under the statutes 
covered by [the bill]. See, e.g.., Brown v. 
Board of Education . . . Such governmental 
entities and officials have substantial re­
sources available to them through funds in 
the common treasury, incuding the taxes paid 
by the plaintiffs‘themselves. ... The greater

79/2A Ark. Stat. Anno. §12-712 provides:
"The Attorney General shall maintain and defend the 

interests of the State in matters before the United States 
Supreme Court, and all other Federal courts, and shall be the 
legal representative of all State officers, boards and commis­
sioners, in all litigation where the interests of 
the State are involved."

77



resources available to governments provide 
an ample base from which fees can be awarded 
to the prevailing plaintiff in suits against 
government officials or entities.

H.R. Rep. No. 943-1558, p. 7.
In the Senate, Senator Helms offered an amendment to the

bar awards of counsel fees against "any territory or possession
thereof, or any State of the United States or any political
subdivision thereof incuding special purpose units of general

80/
local governments." Senator Helms urged that the amend­
ment was necessary to "afford protection to financially

81/
pressed State and local governments." The Senate reject-

82/
ed the proposal by a vote of 59 to 28.

Congress was aware that the award of counsel fees against 
states might raise a question under the Eleventh Amendment.
The Administrative Office of the United States Courts and two 
other organizations expressly brought the issue to the atten-

83/
tion of the House Judiciary Committee. The House Report, 
issued two months after the decision in Fitzpatrick v. Bitzer, 
427 U.S. 445 (1976), expressly invoked that decision as uphold-

80/ 122 Cong. Rec. S. 16433 (daily ed. Sept. 22, 1976).
81/ Id., at S.16432, "This legislation provides that 
State and local governments and their officials can be defen­
dants in cases involving these statutes and that attorneys' 
fees will be collected either directly from the official in his 
official capacity, from funds of his agency or under his 
control, or from the State of local government. Presently this 
legislation potentially places a tremendous burden upon State 
and local governments. In other public interest law suits 
where the legal fees have been contested they have ranged from 
$200,000 to $800,000. Certainly, it is unwise to provide 
that liability in these amounts be assumed by already finan­
cially hard-pressed State and local governments."
8 2 /  Id., S.16434.
83/ Hearings Before the Subcommittee on Courts, Civil Liber­
ties and the Administration of Justice of the Committee on the 
Judiciary, 94th Cong., 1st Sess. pp. 36, 41, 268 (1975).

- 78 -



ing the power of Congress to subject a state to monetary
84/

liability despite the Eleventh Amendment. The Senate
85/

Report, written before Fitzpatr ick asserted that the 
award of such fees were "in accordance with Congress' powers 
under, inter alia, the Fourteenth Amendment, Section 5,"
insisted such fees were "ancillary and incident to securing

‘ 86/
compliance with" sections 1983, etc., noted that counsel
fees were properly regarded as "costs", and cited the deicsion
in Fairmont Creamery exempting counsel fees from the scope of

87/
the Eleventh Amendment. In the House debates Congressman
Drinan, the bill's sponsor, reiterated Congress' authority to
impose liability on a state notwithstanding the Eleventh 

88/
Amendment.

84/ Id., p. 8, n.14. "Of course, the 11th Amendment is not a 
bar to the awarding of counsel fees against state governments. 
Fitzpatrick v. Bitzer."
85/ The report was filed on June 29, 1976, the day after the 
decision in Fitzpatr ick.
86/ This was clearly an attempt to invoke the standard announc­
ed by the Court in Edelman v. Jordan, discussed supra♦
87/ S. Rep. No. 94-1011, p. 5.
88/ "The question has been raised whether allowing fees 
against State governments in suits properly brought under 
the covered statutes woud violate the 11th Amendment. That 
amendment limits the power of the Federal court to entertain 
actions against a State. This issue is no longer seriously 
in dispute after the recent Supreme Court decision in Fitz­
patrick and Bitzer. Since this bill is enacted pursuant to the 
power of Congress under section 2 of the 13th amendment and 
section 5 of the 14th amendment, any question arising under the 
11th amendment is resolved in favor of awarding fees 
against State defendants." 121 Cong. Rec. H12160-61 (daily ed., 
October 1, 1976 ) .

79



Awards of fees from government funds are manifestly 
necessary to carry out the fundamental purposes of the statute. 
As the House Report explained:

The effective enforcement of Federal 
civil rights statutes depends largely on the 
efforts of private citizens. Although some 
agencies of the United States have civil 
rights responsibilities, their authority and 
resources are limited. In many instances 
where these laws are violated, it is nec­
essary for the citizen to initiate court 
action to correct the illegality. Unless 
the judicial remedy is full and complete, 
it will remain a meaningless right.
Because a vast majority of the victims 
of civil rights violations cannot afford 
legal counsel, they are unable to present 
their cases to the courts. In authoriz­
ing an award of reasonable attorney's 
fees, H.R. 15460 is designed to give such 
persons effective access to the judicial 
process where their grievances can be 
resolves according to law.

89/
H.R. Rep. No. 94-1558, p. 1. In any §1983 case involving 
protracted litigation the amount of the fee to which a prevail­
ing plaintiff would be entitled could easily exceed the per­
sonal funds of the individual defendants. If the resources 
of the city or state conducting the litigation could not be 
reached the plaintiff could not receive the full redress 
contemplated by Congress. Where, as commonly occurs, the actual 
conduct of the litigation is controlled by the city or state, 
immunity from an award of fees would encourage government 
counsel to act in a dilatory manner unfair to plaintiff and 
defendant alike. Under other counsel fee provisions, such

89/ See also S. Rep. No. 94-1011,pp. 2, 6; 122 Cong. Rec. 
S16251 (remarks of Senators Scott and Mathias), S16242 (remarks 
of Senator Kennedy) (daily ed. Septemer 21, 1976). S1643 
(remarks of Senator Hathaway) (daily ed. Septemer 23, 1976), 
S17051 (remarks of Senators Kennedy and Tunney), S17052 (re­
marks of Senators Kennedy and Abourezk) (daily ed. September 
29, 1976); H12155 (remarks of Rep. Sieberling), H12163 (remarks 
of Rep. Fish), H12164 (remarks of Rep. Holtzman) (daily ed. 
October 1, 1976).

80



as the Civil Rights Act of 1964 the Emergency School Aid 
91/

Act of 1972, awards against cities and states are
92/

clearly authorized. The legislative history of Public Law
94-559 makes plain that Congress intended that that statute
"would achieve uniformity in the remedies provided by Federal

93/
laws guaranteeing civil and constitutional rights," and

94/
specifically referred to Civil Rights and Emergency 

95/
School Aid Acts as establishing the standards it wished to 
apply to litigation under 42 U.S.C. §1983. The intended uni­
formity clearly requires that counsel fees be available against 
cities and states in §1983 cases just as it is in Title VII 
and school desegregation cases.

The power of Congress to impose monetary liability on a 
state in connection with a violation of the Fourteenth

90/

90/ See, e.g., 42 U.S.C. §2000e-5.
91/ 20 U.S.C.§1617.
92/ Fitzpatrick v. Bitzer, 427 U.S. 445 (1977); Bradley v._
School Board of City of Richmond, 416 U.S. 696 (1974).
93/ H.R. Rep. No. 94-1558, p. 1; see also î d. , p. 8; S.
Rep. No. 94-1011, pp. 1, 4; 122 Cong. Rec. S16252 (remarks of 
Senator Kennedy) (daily ed. Septemer 21, 1976);
H12151 (remarks of Rep. Anderson), H12159 (remarks of Rep. 
Drinan), H12163 (remarks of Rep. Kastenmeier) (daily ed. 
October 1, 1976 ) .
94/ S. Rep. No. 94-1011, pp. 4, 5; H.R. Rep. No. 94-1558, p. 
6; 122 Cong. Rec. S16251 (remarks of Senator Scott (daily ed. 
September 21, 1976), S16430-31 (remarks of Senator Hathaway 
(daily ed. September 23, 1976), H12150 (remarks of Rep. Ander­
son), H12159 (remarks of Rep. Drinan), H12163 (remarks of Rep. 
Kastenmeier), H12165 (remarks of Rep. Seiberling) (daily 
ed. October 1, 1976).
95/ S. Rep. No. 94-1011; p. 4; H.R. Rep. No. 94-1558, pp. 1, 
3, 6.

81



Amendment is not disputed. In Fitzpatrick v. Bitzer, 427 U.S. 
445 (1976), the Court rejected a challenge to the power of 
Congress to subject states to awards of backpay and counsel 
fees under Title VII of the 1964 Civil Rights Act. The Court 
concluded that "[w]hen Congress acts pursuant to §5 [of the 
Fourteenth Amendment], not only is it exercising legislative 
authority that is plenary within the terms of the constitutional 
grant, it is exercising that authority under one section of a 
constitutional amendment whose other sections by their own 
terms embody limitations on state authority. We think that 
Congress may, in determining what is appropriate legislation for 
the purpose of enforcing the provisions of the Fourteenth 
Amendment, provide for private suits against States or state 
officials which are constitutionally impermissible in other 
contexts." 427 U.S. at 456. Provisions for awards of counsel 
fees in Fourteenth Amendment litigation to redress cruel and

96/unusual prison conditions is clearly an appropriate 
method of vindicating that constitutional prohibition. See 
Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).

Although the intent and authority of Congress is beyond 
dispute, petitioners maintain that the Congress failed to 
frame the statute in a manner sufficient to achieve its 
purpose. Were this contention accepted, it would not only 
frustrate the congressional purpose, but would render 
counsel fee awards in section 1983 cases, which are

96/ The Eighth Amendment prohibition against cruel and unusual 
punishment is incorporated in the due process clause of the 
Fourteenth Amendment. Robinson v. California, 370 U.S. 660 
(1962).

82



awarded without regard to the defendants' good faith, payable
exclusively from the personal resources of the defendant
official. That individual liability would exist even though
the official had no meaningful control of the litigation, and
would apply regardless of whether the defendant official were a 

97/ 98/ 99/ 100/
governor, legislator, judge, police officer,

101/ 102/
school official, or prosecutor. In the instant case
petitioners' argument, if successful would shift the liability
for the counsel fee from the funds of the Board of Corrections
to the personal funds of Mr. Hutto.

Petitioners appear to urge that where Congress wishes to
exercise its authority under section 5 of the Fourteenth
Amendment to impose liability on a state it must do so in some

103/
special "express statutory language." Precisely
what language petitioners claim must be used is not clear.
The decisions of this Court support no such technical require­
ment. In Employees v. Department of Public Health & Welfare,
411 U.S. 279 (1973), the "literal language" of the statute 
rendered state agencies liable to suit in federal court. 411

97/ See Scheuer v. Rhodes, 416 U.S. 232 (1974).
98/ See Tenney v. Brandhove, 341 U.S. 367 (1951).
99/ See Pierson v. Ray, 386 U.S. 547 (1967).
100/ See Pierson v. Ray 386 U.S. at 555-57.
101/ See Wood v.Strickland, 420 U.S. 308 (1975). 
102/ Imbler v. Pachtman, 424 U.S. 409 (1976).
103/ Brief for Petitioners, pp. 7-9.

83



U.S. at 283. The Court nonetheless concluded there was no such
jurisdiction because it could find "not a word in the history
of the 1966 amendments to indicate a purpose of Congress
to make it possible for a citizen of that State or another
State to sue the State in the federal courts." 411 U.S. at 285.
(Emphasis added) Similarly, in Edelman v. Jordan, 415 U.S. 651
(1974) the Court concluded that section 1983 did not authorize
monetary awards from state funds, not because of the language
of the statute, but because there was no evidence that section
1983 "was intended to create a waiver of a State's Eleventh
Amendment immunity merely because of action could be brought
against state officers, rather than against the State itself."
415 U.S at 676-77. (Emphasis added) The construction of
statutes touching on a State's Eleventh Amendment immunity
differs from that of other statutes, if at all, only to the
extent that, where the consequence of a loss of immunity
would be unusually harsh, the Court will not infer from a
silent legislative history an intent to so affect "the delicate

104/
federal-state relationship." Employees, 411 U.S. at 286.

104/ This is well exemplified by the circumstances of Employ­
ees and Fitzpatrick. In both cases the statute involved 
merely repealed a prior exclusion of state agencies from 
an existing regulatory scheme. In Employees the legislative 
history was silent, and federal jurisdiction would have subject­
ed the states to an unusual provision for double damages; the 
Court declined on the record to infer an intent to create 
federal jurisidiction. In Fitzpatr ick coverage by Title VII 
entailed only liability for injunctive relief, backpay, and 
counsel fees; the Court in summarily construing the statute to 
authorize suit in federal court did not bother to discuss the 
statute's legislative history.

84



In the instant case that history is unambiguous, and the 
resulting liability for counsel fees is an ordinary incident of 
litigation, not the unique provision for double damages at 
issues in Employees.

Petitioners further contend that Public Law 94-559 should 
not be applied to litigation which was commenced prior to 
October 19, 1976 though still pending on that date. Brief for 
Petitioners, pp. 9-11. Assuming arguendo that this question is 
"fairly comprised" within the question presented, 
we believe it is manifestly unsound.
Bradley v. School Board of the City of Richmond, 416 U.S. 696 
(1974), presents a situation indistinguishable from the instant 
case. There, as here, a new statute expressly authorizing 
counsel fees was enacted long after the commencement of the 
action but while the propriety of such an award was still an issue 
pending before the court of appeals. This Court upheld the 
award of fees under the newly adopted statute in light of "the 
principle that a court is to apply the law in effect at the 
time it renders its decision, unless doing so would result in 
manifest injustice or there is statutory direction or legisla­
tive history to the contrary." 416 U.S. at 711. In Bradley the 
legislative history was silent; in the instant case Congress
clearly indicated its intent that the statute be applied to 

105/
pending cases.

105/ H.R. Rep. No. 94-1558, P. 4, n.6. "In accordance with 
applicable decisions of the Supreme Court, the bill is in­
tended to apply to all cases pending on the date of enactment as well 
as all future cases. Bradley v. Richmond School Board,
416 U.S. 696 (1974)." The House manager, Congressman

85



Petitioners suggest that the application of Public Law 
94-559 to this case would result in "manifest injustice." 
Although they contend that an award of $20,000 will have 
"tremendous" effect on "the budgetary and fiscal policy of the 
State of Arkansas," this sum is clearly an insignificant 
portion of the State's annual budget of $ 1 billion, and 
is also insignificant in comparison with the funds required to 
comply with undisputed portions of the injunctive relief. 
Petitioners do not suggest that they would have acted any

105/ [Continued]

Drinan, explained "[T]his bill would apply to cases pending on 
the date of enactment. It is the settled rule that a change in 
statutory law is to be applied to cases in litigation. In 
Bradley versus Richmond School Board, the Supreme Court 
expressly applied that long-standing rule to an attorney fee 
provision, incuding the award of fees for services rendered 
prior to the effective date of the statute." 122 Cong. Rec.
H12160 (daily ed. October 1, 1976); see also _id. , pp. H12155 
(remarks of Rep. Anderson). A motion by Representative Ash- 
brook to recommit the bill with instructions to amend it to 
apply "to cases filed only after the effective date of this 
act" was decisively rejected. Id., p. H12166. Senator Abourezk, 
one of the chief proponents of the bill, explained, "The Civil 
Rights Attorneys' Fees Awards Act authorizes Federal courts to 
award attorneys' fees to a prevailing party in suits presently 
pending in the Federal courts. The application of this Act to 
pending cases is in conformity with the unanimous decision of 
the Supreme Court in Bradley v. School Board of City of Richmond, 
416 U.S. 696 (1974 ) ."

This application is necessary to fill the gap created by the 
Alyeska decision and thus avoid the inequitable situation of an 
award of attorneys' fees turning on the date the litigation 
was commenced." 122 Cong. Rec.-S17052 (daily ed. September 
29, 1976).

86



differently had they been aware of their possible liability for
counsel fees; nor would such a contention be plausible in light
of the facts of this case, since the private attorney general
rule was applied by the Eighth Circuit prior to 

106/
Alyeska, and the district court had previously made 
another fee award of $8,000 payable from the funds of the 
Department. See Bradley v. Richmond School Board, 416 U.S. at 
720-22. Here, as in Bradley, the litigation assisted the 
defendants in meeting their constutitional responsibilities.
416 U.S. at 717-20. This case presents no exceptional circum­
stances which would warrant disregarding the plain intent of 
Congress, and the rule in Bradley, that this newly enacted legisla­
tion be applied to pending cases.

106/ Fowler v. Schwarzwalder, 498 F .2d 143 (8th Cir. 1974).

87



CONCLUSION
For the foregoing reasons it is respectfully submitted that 

the Judgment of the courts below should be affirmed.
Respectfully submitted,

PHILIP E. KAPLAN
1650 Tower Building 
Little Rock, Arkansas 72201

JACK HOLT, JR.
1100 North University 
Evergreen Place 
Little Rock, Arkansas

PHILIP E. McMATH
McMath, Leatherman & Woods, P.A. 
711 West Third Street 
Little Rock, Arkansas 72201

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
STANLEY BASS 
ERIC SCHNAPPER 
LYNN WALKER

10 Columbus Circle
New York, New York 10019

Attorneys for Respondents

January 1978.

88



APPENDIX



APPENDIX

This Appendix sets forth cases in which the Clerk 
of the Supreme Court has awarded costs against a state, 
or a state official, during October Terms, 1970-76. With 
regard to awards against state officials, the list is 
limited to actions for injunctive relief against the de­
fendant in his official capacity, in which the action was 
defended by the state and where, as a consequence, there 
was no suggestion that the costs would be paid by the 
defendant personally. Costs have also been awarded in 
damage actions against state officials, e.g. Scheuer v. 
Rhodes, No. 72-914; these cases, however, are not included, 
since, although the costs are in fact usually paid by the 
state, the defendant officials were personally liable.

(a) Civil actions for injunctive relief against 
states or state agencies, originating in federal court, 
in which costs were awarded to plaintiffs:

Alamo Cattle Co. v. Arizona, No. 74-125; 
Christian v. New York Department of Labor,
No. 72-5704;
Papish v. Board of Curators of University of 
Mississippi. No. 72-794.

(b) Civil actions for injunctive relief against 
state officials, originating in federal court, in which 
costs were awarded to the plaintiff:

Connor v. Waller, No. 74-1509 (Defendant was 
the Governor of Mississippi);
Meek v. Pittinger, No. 73-1765 (Defendants 
were the Secretary of State and Treasurer of 
Pennsylvania);
Chapman v. Meier, No. 73-1406 (Defendant was 
the Secretary of State of North Dakota);
Hagans v. Levine, No. 72-6476 (Defendant was

-la-



the Commissioner of the New York State 
Department of Social Services);
Communist Party of Arizona v. Whitcomb, No. 72- 
1040 (Defendant was the Secretary of State of 
Indiana and the members of the Indiana State 
Election Board);
Committee for Public Education v. Nyquist.
No. 72-694 (Defendant was the New York Com­
missioner of Education);
Norwood v. Harrison, No. 72-77 (Defendants 
were the members of the Mississippi State 
Textbook Purchasing Board);
Healy v, James, No. 71452 (Defendant was the 
President of Central Connecticut State College); 
Fuentes v. Shevin, No. 70-5039 (Defendant was 
the Attorney General of Florida);
Taylor v„ McKeithen, No. 71-784 (Defendant was 
the Governor of Louisiana);
Townsend v a Swank, No. 70-5021 (Defendant was 
the Director of the Illinois Department of 
Public Aid).
Great Atlantic and Pacific Tea Co. v. Cottrell,
No. 74-1148 (Defendant was the Health Officer 
of Mississippi);
Yovakim v. Miller, No. 73-6935 (Defendant was 
the Director of the Illinois Department of 
Children and Family Services);
Planned Parenthood of Central Missouri v. Danforth, 
Nos. 74-1151 and 74-1419 (Defendant was the 
Attorney General of Missouri);
Craig v. Boren, No. 75-628 (Defendants included 
the Governor of Oklahoma).

-2a-



(c) Civil Actions for injunctive or monetary relief, 
against a state of state official, originating in state 
court, in which costs were awarded to the plaintiff:

Austin v. New Hampshire. No. 73-2060;
Mescalero Apache Tribe v. Jones. No. 71-738; 
McClanahan v. Arizona State Tax Commission.
No. 71-834;
Evco v. Jones. No. 71-857;
Matz v. Arnet, No. 71-1182;
Bonnelli Cattle Corp. v. Arizona. No. 72-397. 
Local 76 v. Wisconsin Employment Relations 
Commission, No. 75-185;
Boston Stock Exchange v. State Tax Commission, 
No. 75-1019.

(d) Habeas corpus actions against state officials, 
originating in federal court in which costs were awarded 
to the petitioner:

Francisco v. Gathright, No. 73-5768;
Robinson v. Neil, No. 71-6272;
Peters v. Kiff. No. 71-5078;
Loper v. Beto, No. 70-5388;
Humphrey v. Rady, No. 70-5004;
Morrissey v. Brewer, No. 71-5103.

(e) Criminal prosecutions arising in state court in 
which costs were awarded to the defendant:

Brown v. Illinois, No. 73-6650;
Faretta v. California, No. 5772;
Herring v. New York, No. 73-6587;
Bigelow v. Virginia, No. 73-1309;
Drepe v. Missouri, No. 73-6038;
Antoine v. Washington, No. 73-717;
Taylor v. Louisiana. No. 75-5744;

-3a-

t

1



Jenkins v. Georgia. No. 73-557;
Spence v. Washington, No. 72-1690; 
Codispoti Vo Pennsylvania, No. 73-5615; 
Davis v. Alaska, No. 72-5794;
Alexander v, Virginia, No. 71-1315;
Roaden v. Kentucky, No. 71-1134;
Chambers v. Mississippi, No. 71-5908; 
Furman v. Georgia, No. 69-5003;
Jackson v. Georgia, No. 69-5030;
Branch v. Texas, No. 69-5031;
Turner v. Arkansas, No. 71-1309;
Brooks v. Tennessee, No. 71-5313;
Jackson v. Indiana, No. 70-5009;
Columbo v. New York, No. 71-352;
Smith v. Florida, No. 70-5055;
Rabe v. Washington, No. 71-247;
Alexander v. Louisiana, No. 70-5026; 
Stanley v. Illinois, No. 70-5014;
Camp v. Arkansas, No. 70-353;
Santebello v. New York, No. 70-98; 
McKinney v. Alabama, No. 74-532;
Doyle v. Ohio, Nos. 75-5014 and 75-5015; 
Gardner v. Florida. No. 74-6593;
Roberts v. Louisiana, No. 76-5206;
Brown v. Ohio, No. 75-6933;
Hankerson v. North Carolina, No. 75-6568; 
Coker v. Georgia, No. 75-5444.

-4a-

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