Hutto v. Finney Brief for Respondents

Public Court Documents
January 24, 1978

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  • Brief Collection, LDF Court Filings. Hutto v. Finney Brief for Respondents, 1978. 9f02eca9-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/30fe7996-5e1a-41dc-ba08-cd1ca3c25005/hutto-v-finney-brief-for-respondents. Accessed July 20, 2025.

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    IN THE

S u p r e m e  C o u r t  of tbe E n i t r i r S ® B l ^ n r i
F I L E DOCTOBER TERM, 1977

No. 76-1660

JAN 24 1978

M ICHAEL RODAK, JR ., CLERK

TERRELL DON HUTTO, et a!.,
Petitioners,

v.

ROBERT FINNEY, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE 

EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS

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

Washington, D C. • C LB  PU B L IS H ER S ' • LAW  PR IN T IN G  CO. • (202) 393 0625



TABLE OF CONTENTS

OPINIONS BELOW .......................................................................  1
QUESTIONS PRESENTED ...........................    2
CONSTITUTIONAL AND STATUTORY PRO­

VISIONS INVOLVED .........................   3
STATEMENT ..........................................................    5

A. Introduction .............................................................  5
B. Holt I and Previous Prison Suits ...............   7
C. Holt II — Litigation During 1970 and 1971 . . . . . . .  12
D. Holt III — Litigation in 1973 and 1974 ....................... 16

E. Graves v. Lockhart — 1973-1974 Proceedings . . . . . .  19
F. Finney v. Hutto -  Proceedings 1975-1977 ...................20

SUMMARY OF ARGUMENT .......................................................34
ARGUMENT .................................................................................. 38

I. THE DISTRICT COURT PROPERLY FOR­
BADE THE USE OF INDEFINITE PUNI­
TIVE SEGREGATION AS PART OF ITS 
REMEDY FOR THE UNCONSTITU­
TIONAL CONDITIONS IN THE PUNITIVE 
FACILITIES .............................................   38

II. THE DISTRICT COURT HAD THE
AUTHORITY TO AWARD COUNSEL FEES 
AGAINST THE DEPARTMENT OF COR­
RECTIONS ........................................................................58

A. Counsel fees may be awarded against 
State officials or agencies which have
acted in bad faith ...................................................... 59

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 ...................................... . . . 7 3

CONCLUSION ............................................................................... 90
APPENDIX ...........................................................................   la

Page



(H)

TABLE OF AUTHORITIES
Cases: Page

Alyeska Pipeline Service Co. v. The Wilderness
Society, 421 U.S. (1975) ..............................................passim

Bell v. School Board of Powhatan County, 321 F.2d
494 (4th Cir. 1963) ...............................................................  59

Berenyi v. Immigration Service, 385 U.S. 630
(1967) ....................................................................................... 61

Bitzer v. Matthews, No. 75-283, decided sub nom................... . 63
Bradley v. Richmond School Board, 416 U.S. 696

(1974)     37,60,83,87,88,89

Brandenburger v. Thompson, 494 F.2d 885 (9th
Cir. 1974)   63

Chisholm v. Georgia, 2 Dali. (2 U.S.) 419 (1798) ............... .64
City of Kenosha v. Bruno, 412 U.S. 507 (1973)  77
Class v. Norton, 505 F.2d 123 (2d Cir. 1974) .......................... 63
Coker v. Georgia, 53 L.Ed.2d 982 (1977) ..................................40
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.), affd, 229 F.575 (2d Cir.) cert, 
denied, 241 U.S. 671 (1915) ................................................. 77

Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) .........................  59
Eagle Mfg. Co. v. Miller, 41 F.351 (S.D. Iowa 1890) ............. 77
Edelman v. Jordan, 415 U.S. 651 (1974) ......................... passim

Employees v. Missouri Public Health Dept., 411
U.S. 279 (1973)      64,85,86,87

Estelle v. Gamble, 50 L.Ed.2d 251 (1977)   34,39,40,43
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)  70
Fairmont Creamery Company v. State of Minnesota,

275 U.S. 70 (1927) ..............................................  33,35,66,81



(Hi)

Finney v. Arkansas Board of Corrections, 505 F.2d
194 (8th Cir. 1974) . . . ...................... ................... 2,6,16,61

Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977) . . . . . . .  20,33
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark.

1976) ............................................. ..................................  2>20
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . .  passim

Flanders v. Tweed, 15 Wall. (82 U.S.) 450 (1873) ...............  71
Fleischman Distilling Corp. v. Maier Brewing Co.,

388 U.S. 714 (1967) ........................................................... 69
Ford Motor Co. v. Department of Treasury, 323

U.S. 459 (1945) ....................... ................... ...................... 64
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.

1974) ................................ ............................. .............. .. • 88

Goldberg v. Kelly, 397 U.S. 254 (1970) .  ............................ 65
Graham v. Richardson, 403 U.S. 365 (1971) .........................  65
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) 40,42,43,45,55

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) ............. 61

Graves v. Lockhart, (E.D. Ark.) Civil Nos.
PB-74-C-81 ...................................... .......................  2,25,26,27

Green v. School Board of New Kent County, 391
U.S. 430 (1968) .................... ............................................  49

Gregg v. Georgia, 428 U.S. 153 (1976) ..................  38,42,43,55
Ex parte Young, 209 U.S. 123 (1908) .......................... 15,65,66

Grimes v. Chrysler Motors Corp., ____ F.2d -------
(2d Cir. 1977) ................................. ..................................... 77

Hagood v. Southern, 117 U.S. 52 (1886) ..............................  64
Hall v. Cole, 412 U.S. 1 (1973) ............... .............................  59
Hallmark Clinic v. North Carolina Dept, of Human

Resources, 519 F.2d 1315 (4th Cir. 1975)   63
Hans v. Louisiana, 134 U.S. 1 (1890) . ...............    64
Henkel v. Chicago, etc., R.R., 284 U.S. 444 (1932) ............  66

Page



(iv)

Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973),
reversed in part sub nom...................................................... 2,lb

Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969) ..........  1,9

Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), 
affirmed and remanded, 442 F.2d 304 (8th Cir.
1971) .......... ................... - ............................................. 2 ’12

Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) .......................  ^
Illinois v. Allen, 397 U.S. 337 (1970) ....................................  6()
Imber v. Pachtman, 424 U.S. 409 (1976) ............................... 85
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) .................... 63
Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) .................. 63
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) ........................................ 55
Matter v. Yamashita, 327 U.S. 1 (1945) ................................. 60
Maynard v. Wooley,------ F. Supp.--------(D.N.N.Y.

1977)    77
McEnteggart v. Cataldo, 451 F.2d 1109 91st Cir.

1971)    60
Milburn v. Huecker, 500 F.2d 1279 (5th Cir. 1974) ..........  63
Milliken v. Bradley, 53 L.Ed.2d 745 (1977) . . . 35,54,65,72,77

Monnell v. Department of Social Services No.
75-1914 .........................   77

Monroe v. Pape, 365 U.S. 167 (1961)    77

Named Individual Member v. Texas Highway Dept.,
496 F.2d 1017 (5th Cir. 1974)    63

Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977) 40,43,44,57
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ......................................................................  59,60,84

Page



Page
Ocean Accident & Guarantee Corp. v. Felgemaker,

143 F.2d 950 (6th Cir. 1944) ...........................................  77

Pierson v. Ray, 386 U.S. 547 (1967) ......................................  85
Pittman v. Arkansas Department of Corrections,

PB-72-C-15 .................... ......................................................  77
Procunier v. Martinez, 416 U.S. 396 (1974) .........................  41

F.D. Rich v. Industrial Lumber Co., 417 U.S. 116
(1974) ...............    59,60

Richardson v. Communications Workers of America,
530 F.2d 126 (8th Cir. 1976) . ........................................... 59

Robinson v. California, 370 U.S. 660 (1962) . . . .  38,40,54,84

Rolax v. Atlantic Coast Line R. Co., 186, F.2d 473
(4th Cir. 1951) ..............................  59

Runyon v. McCrary, 427 U.S. 160 (1976) . . . . . . . .  59,61,73
Russell v. Arkansas Department of Corrections,

PB-72-C-155      77
Scheuer v. Rhodes, 416 U.S. 232 (1974)   78,85
Service v. Wilderness Society, 421 U.S. 240 (1975) ............... 71
Skehan v. Board of Trustees, 503 F.2d 31 (3d Cir.

1974) . . . . ..........    63
Sims v. Amos, 340 F. Supp. 691 (N.D. Ala. 1 9 7 2 ) .............60,62
Sostre v. McGinnis, 442 F.2d 178 (1971) .................. 40,44,50,55

Souffront v. Compagnie des Suceries, 217 U.S. 475
(1910) ............................................................................36,76,77

Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975) ............... 63
Stanton v. Bond, No. 75-1413 . ...............................................63

Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark.
1965)  7,8

Taylor v. Perini, 501 F.2d 899 (6th Cir. 1974)  ..............63
Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) .................... .63
Trop v. Dulles, 356 U.S. 86 (1958) .......................................... 38



Trustees v. Greenough, 105 U.S. 527 (1882) .......................... 71
Universal Oil Products Co. v. Root Refining Co.,

328 U.S. 575 (1946) ..........................................................  60
Vaughan v. Atkinson, 369 U.S. 527 (1962) ....................  59,60

Weems v. United States, 217 U.S. 349 (1910) ....................... 38
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977)............. 44
Wolff v. McDonnell, 418 U.S. 539 (1974) ....................... 22,53
Wood v. Strickland, 420 U.S. 308 (1975) . ............................  85
Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y.

1970) a ff’d. 460 F.2d 126 (2d Cir. 1972), cert.
den. 409 U.S. 885 (1972) .............................................  42,54

Constitutional Provisions:
Eighth Amendment ............................................................. passim

Eleventh Amendment ...........................    passim

Fourteenth Amendment ...........................    passim

Legislative Materials:

H.R. 7826, 94th Cong. Rec., 1st Sess.............................. 74

H.R. 7828, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 7968, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 7969, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 8220, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 8221, 94th Cong. Rec., 1st Sess............... ........................  74
H.R. 8742, 94th Cong. Rec., 1st Sess........................................74
H.R. 8743, 94th Cong. Rec., 1st Sess.............................. .. 74
H.R. 8821, 94th Cong. Rec., 1st Sess......................... .............. 74
H.R. 9552, 94th Cong. Rec., 1st Sess.............................. .. 74

Hearings on Legal Fees Before the Sub-committee 
on Representation of Citizen Interests of the 
Senate Judiciary Committee, 93rd Cong., 1st 
Sess. (1973)      74

(vi)

Page



(vii)

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) ....................................................  74,80

S. Rep. No. 94-1011 . ...........................................  74,79,81,82,83
H.R. Rep. No. 94-1558 .............................................  74,79,82,83
122 Cong. Rec...........................................................  75,79,82,83,88
Other Authorities:

Page

American Correctional Association, Manual of Cor­
rectional Standards (1972) ................................. 39,45,47,50

American Bar Association, Tentative Draft of 
Standards Relating to the Legal Status of 
Prisoners (1977)   39,50

American Law Institute, Model Penal Code (Pro­
posed Official Draft) (1962)   50

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)   71

Model Act for the Protection of Rights of Prisoners
(1972) ...................................................................................  45

Model Penal Code ......................................................................  39
2A Moore’s Federal Practice f  12.13    77

National Advisory Commission on Criminal Justice
Standards and Goals, Corrections (1973) ....................  39,50

National Council on Crime and Delinquency, Model
Act for Protection of Rights of Prisoners (1972) . . . 39,45

National Sheriffs Association, Manual on Jail
Administration (1970)   40

Goodhart, Costs, 38 Yale Law Journal 849 (1 9 2 9 ) ...............  71



(viii)

Rules:
Federal Rules of Appellate Procedure, Rule 7 ........................... 67
Federal Rules of Appellate Procedure, Rule 38   67

Federal Rules of Appellate Procedure, Rule 39   67
Federal Rules of Civil Procedure, Rule 30(g) .......................... 67
Federal Rules of Civil Procedure, Rule 3 7 (a )(4 )........................67
Federal Rules of Civil Procedure, Rule 41(d)   67
Federal Rules of Civil Procedure, Rule 43(f) . . . . . . . . . . .  67

Federal Rules of Civil Procedure, Rule 54   67

Federal Rules of Civil Procedure, Rule 55(b)(1)   67
Federal Rules of Civil Procedure, Rule 56(g) ..........................  67
Federal Rules of Civil Procedure, Rule 65(c) .......................... 67
Federal Rules of Civil Procedure, Rule 68    67
Federal Rules of Criminal Procedure, Rule 38(a)(3) . .............  67
Rules of the Supreme Court, Rule 14    67
Rules of the Supreme Court, Rule 18   67
Rules of the Supreme Court, Rule 36(3)    67

Rules of the Supreme Court, Rule 57   67
Rules of the Supreme Court, Rule 60   67

Statutes and Treaties:

5 U.S.C. §552(a)2E ............................................................. .. . 70

7 U.S.C. §210(f)   70
7 U.S.C. §499g(b)   70
15 U.S.C. §15 ........................................................................... 70

15 U.S.C. §72 ........................................................................... 70
15 U.S.C. §77k(e)   70
15 U.S.C. §78i(e) ...... ...............................................................  70
15 U.S.C. §78r(a) ...............................    70
17 U.S.C. §116   70

Page



18 U.S.C. § 1964(c)      70
20 U.S.C. §1617   70,78,83
28 U.S.C. §1331     67,68
28 U.S.C. §1332   67
28 U.S.C. §1343(3)     15
28 U.S.C. §1446   67
28 U.S.C. §1911   67
28 U.S.C. §1923   69,71,72

28 U.S.C. §2101(f) • • ....................................................... • • • 67
28 U.S.C. §2103 .......................... .. ............. .................. . . .  67
33 U.S.C. § 1365(d) ....................................................... .. 70
33 U.S.C. § 141(g)(4) ....................... ............. . . . . . . . . . .  70

42 U.S.C. §1857h-2(d)     ?0
42 U.S.C. §1983      passim
42 U.S.C. §1988 ............................................................. 33,13,1A

42 U.S.C. §2000a-3(b)   70
42 U.S.C. §2000e-5     83
42 U.S.C. §2000e-5(k)    70
42 U.S.C. §4911(d)    70
45 U.S.C. § 153(p)      70
46 U.S.C. §1227       71
47 U.S.C. §206      71
49 U.S.C. §8 .......................................................... .............. .. . 71
49 U.S.C. §16(2) ....................................................................... 71
49 U.S.C. §908(b) ............................................................... .. . 71
1 Stat. 73 .....................................................................................  66
1 Stat. 93 ........................................................................ .. 66,69

10 Stat. 161 (1853) ..................................... ........................... 69

(ixj

Page



(X)

Civil Rights Act of 1964 . ...................................................  83,84
Civil Rights Attorney’s Fees Awards Act of 1976 . . . .  passim
Statute of Gloucester, 1278, 6 Edw. 1, c. 1 ............................ 69
2A Ark. Stat. Anno. §12-712 .................................    78
4A Ark. Stat. Anno. §46-116 ...................................................  42
4A Ark. Stat. Anno. §46-1201 (1975 Supp.) ........................... 42

Act 543 of the Arkansas Acts of 1977 approved
March 18, 1977 .................................................................. 3,69

New York Corrections Law §137 (1977 Supp.) .................. 42

6 United States Treaties 3317 (1949) .................. .. 40,50

Page



IN THE

Supreme Court of tlje fflnttrb ^tatrg
OCTOBER TERM, 1977

No. 76-1660

TERRELL DON HUTTO, et al.
Petitioners,

v.

ROBERT FINNEY, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE 

EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS

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)*

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



2

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 o f  
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).

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 petitioners, 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 
Circumstances Against Officers or Employees of 
Arkansas State Government, or Against the 
Estate of Such an Officer or Employee; Defining 
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 performance 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



4

duties, where the amount of damages is deter­
mined 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.

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 
proceedings 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 Com­
mission shall have jurisdiction over all claims for 
indemnification based on a judgment or negotiated 
settlement in conformity with Sections 1 and 2, 
and proceedings 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 governing 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.



5

SECTION 8. If any provision of this Act or the 
application thereof to any person or circumstances 
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 defendants 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 performing 
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.

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



6

District Court — Circuit Court Judge J. Smith Henley 
(formerly district judge) sitting by special designation — 
have been reviewed by the Court of Appeals for the 
Eighth Circuit on three occasions.1 The present petition 
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 punitive 
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 necessities 
including light, heat, ventilation, sanitation, clothing 
and a proper diet.” Finney v. Arkansas Board o f 
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, 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.

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.



7

In order that the present issues may be seen in their 
complete context, we shall review proceedings from the 
inception of the case in 1969, before giving a more 
detailed statement of the proceeding which led to the 
Third Supplemental Decree. Throughout this statement 
of the case the facts regarding 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 
throughout 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 .H olt 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



8

and sadistic atrocities.”2 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 court-appointed attorneys who served 
without compensation.3

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 represent 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.”

(continued)



9

The Holt I  proceedings which are described in the 
Memorandum 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 confinement 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 hearing.4 The Court rejected plaintiffs

(footnote continued from preceding page)
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 defendant 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 appoint­
ment. 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 represented 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.”



10

complaint about 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 with respect to the 
safety of certain convicts,5 and that the conditions 
existing in the isolation cells, including overcrowding, 
render confinement in those cells under those con­
ditions 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

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.



confinement 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 confine­
ment 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 confinement in isolation: “It is 
hazardous to health. It is degrading and debasing; it 
offends modem 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 “suggestions” 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.



12

C.H olt 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. 1971). In 
December 1969 Judge Henley consolidated five ad­
ditional 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 December 1969 as counsel for 
members of a class of prisoners in the Arkansas 
system.6 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 Thirteenth and Fourteenth Amendments.7

6The Court stated at 309 F. Supp. at 364:
“It appearing to the Court that constitutional 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 Petitioners without charge. Messrs. Holt 
and Kaplan accepted the appointments and have done 
yeomen service on behalf of their clients. The Court wishes 
to thank them for their efforts.”

7The claim is summarized in 5120 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 meaningful rehabilitative opportunities, (b) the 
right to be free from cruel and unusual punishment, (c) the

(continued)



13

The Court sustained the claim that the overall 
conditions and practices of the Arkansas State Peni­
tentiary system amounted 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. Id. at 366. The Court rejected a claim 
that forced labor in the prisons violated the Thirteenth 
Amendment. Id. at 365.

At the time of the 1970 decision the Arkansas prison 
system 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.” Id. at 373. “Of 
these 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
(footnote continued from preceding page)

right to be free from arbitrary and capricious denial of 
rehabilitation opportunities, (d) the right to minimal due 
process safeguards in decisions determining fundamental 
liberties, (e) the right to be fed, housed and clothed so as 
not to be subjected to loss of health or life, (t) 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).



14

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:

“For the ordinary convict a sentence to the 
Arkansas Penitentiary today amounts to a banish­
ment from civilized society to a dark and evil 
world completely alien to the free world, a world 
that is administered 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 Penitentiary 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 
governance 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



15

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 construction of a new maximum 
security unit at Cummins, and stated that the operation 
of the unit by trustys was a source of constant trouble. 
Ibid. However the Court concluded that since over­
crowding had been relieved and many of the conditions 
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 
affirmed. 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 Amendment violation. On remand the 
District Court held further hearings in November and 
December 1971 and entered a supplemental decree 
dated December 30, 1971. A. 78. The Court noted that 
there had been great progress in making the system a 
constitutional one; that there were still problem areas



16

and that the court should retain jurisdiction. A. 78. The 
Court supplemented the earlier injunctions by provi­
sions which enjoined any cruel and unusual punish­
ments, enjoined interferences with inmates5 access to 
the courts and to counsel, and enjoined reprisals against 
inmates for exercising their right to access to the court. 
Ibid.

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 o f 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 individual 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



17

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.

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. Flolt 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 Corrections 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 Supple­
mental Decree and on appeal the Eighth Circuit found 
continuing constitutional violations and ordered the 
District Court to continue to retain jurisdiction:

“This Court recognizes the difficult issues the 
District Court has passed upon since the com­
mencement of this litigation in 1969. We are



18

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 discussed, 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 guards, 
abuse of mail regulations, arbitrary work classifica­
tions, 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 further 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 “dubious.” 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.



19

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 consolidated complaints filed by Willie Graves 
and other prisoners who complained of race discrimina­
tion and other types of mistreatment 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 subsequent 
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 
undertaking 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 attorney’s fee in the subsequent Finney 
decision which is now being reviewed in this Court. The 
injunctive relief granted in Finney-Holt was considered



20

applicable to the Graves case. The individual damage 
claims of the plaintiffs in Graves were subsequently 
dismissed in the memorandum opinion of September 
29, 1977. A. 204.

F .Finney v. H utto, — Proceedings 1975-1977

The proceedings in the district court after the 1974 
Eighth Circuit remand are described in the Memoran­
dum 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 United States Magistrate during 1975.8 
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 constitutional 
deprivations continued to exist and that the court must 
grant appropriate relief. The opinion, which covers

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.



21

some 35 pages in the official reports, contains separate 
sections discussing the following subjects: “Overcrowd­
ing” , “Medical Services and Health Care” , “Rehabilita­
tion” , “Regulations as to Mail and Visitors” , “Legal 
Assistance to Inmates” , “Inmate Safety”, “Race 
Relations in General” , “Racial Discrimination” , “Griev­
ance Procedure” , “The Black Muslims”, “Brutality” , 
“Disciplinary Procedures” , “Punitive Isolation and 
Administrative 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 
conditions in 1975 were worse than in either 1973 or 
1974, although after the 1975 hearings conditions were 
alleviated substantially. The court granted extensive 
additional injunctive relief as to a variety of prison 
conditions.9 410 F. Supp. at 254-257. With particular

9With 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 committee 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

(continued)



22

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 the situation” 410 F. 
Supp. at 257.10 The Third Supplemental Decree set
(footnote continued from preceding page)
prison system and that inmate safety had been substantially 
improved. Id. at 263. With respect to race relations, 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 treatment by an additional injunction 
prohibiting employees 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 disciplinary procedures adopted by the defendants to 
comply with Wolff 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.

10A report prepared by the defendants in response to the 
Third Supplemental Decree issued by the court contains 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.



23

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.

Pursuant to the mandate of the Eighth Circuit, the 
Court conducted an extensive further inquiry into 
conditions in punitive 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 
prisoners are held in segregation pending trial in one 
wing and in maximum security 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 administra­
tive 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.



24

“Whichever may be the case, the Court now find from 
the evidence that unconstitutionalities now exist with 
respect to both punitive isolation and administrative 
segregation, . . Ibid. The Court found that an inmate 
sentenced to punitive isolation was confined “in an 
extremely small cell under rigorous conditions for an 
indeterminative 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, depending upon their attitudes as 
appraised by prison personnel.” 11 Ibid. The Court

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 
Interrogatories propounded to Defendants) provided:

“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 o f 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 segregation. 

(continued)



25

found that such prisoners were rarely confined in the 
cell alone and that at times three or more inmates were 
kept in the small cell equipped with extremely limited 
facilities. Where three or more men were put in the 
same cell, one or two of them had to sleep on the 
floor.12 The mattresses were removed during the day. Id. 
at 275-276.

The Court reviewed the diet of grue served as a 
punishment to inmates in punitive isolation in light of 
the Court of Appeals remand and concluded that it 
should no longer be served. Id. 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 com­
plained of short rations for this meal and of a practice

(footnote continued from preceding page)
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 indefinitely as 
long as he was given regular meals for two days every 15 days. 
See, Testimony of A. L. Lockhart, Extract of Proceedings in 
Graves v. Lockhart, pp. 95-96, 100.

12See Defendants’ Response to Request for Admission of Fact 
(May 3, 1974) page 3, A. 219.



26

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 seventeenth day. Virtually all inmates 
lost weight on this diet.13 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 
which were very rare and could receive only “constitu­
tionally protected” mail.14 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 excessive 
responses.15 Id. at 276-277. The Court criticized the

13Defendants 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 ‘pumhve 
wing’ of the Cummins Prison Farm, have generally and 
uniformally [sic] suffered weight loss.” Defendants’ Response to 
Request for Admission of Fact (May 3, 1974) p, 2, A. p. 218.

14It was admitted that inmates were not allowed to receive 
personal mail while serving time in the punitive wing. 
Defendants’ Response To Request For Admission of Fact (May 
3, 1974), p. 3, A. p. 219.

15Much 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.



27

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 plaintiffs expert 
in the 1974 Graves hearings that punitive isolation as 
practiced at Cummins “serves no rehabilitative purpose, 
and that it is counterproductive. It makes bad men 
worse. It must be changed.” 16 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 
further opportunity for physical exercise outside their 
cells. Finally, the Court enjoined the confinement of 
inmates in punitive isolation for indeterminate periods. 
The17 Court’s decision was that indeterminate periods

16See, generally, the testimony of Arthur Rogers, set out in 
the Extract of Proceedings in Graves v. Lockhart, at pages 3-20.

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

Respondents will be, and they hereby are, enjoined from 
sentencing inmates of the Departments to confinement in 
punitive isolation for indeterminate periods of time. In the 
future an inmate who is convicted of a major disciplinary 
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.

(continued)



28

of confinement under these conditions was unreason­
able and unconstitutional. 410 F. Supp. at 278. The

(footnote continued from preceding page)
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 foregoing, the use of the substance known 
as “grue” , or any variant thereof, as a food for inmates in 
punitive isolation is specifically enjoined.

Respondents will be, and they hereby are, directed and 
required to afford inmates in punitive isolation reasonably 
adequate opportunites for physical exercise outside their 
cells, including reasonable amounts of outdoor 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 circumstances 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 cases 
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 appropriate 
actions based on such evaluations and re-evaluations.



29

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 segregating of unruly prisoners 
from general population and referred to the Eighth 
Circuit’s controlling decision relating to so-called 
“administrative 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 punitive 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 maximum period, 
it is found that an inmate should not be returned 
to population, he may be kept segregated but



30

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 unconstitutional 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 preceding section hereof 
ought to take care of the problem of overcrowding.” 
410 F. Supp. at 278.

In the third wing, which would probably be called 
“administrative 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.

18Indeed, 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.



3 J

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 isolation 
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 Supple­
mental 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 against 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 the same choice of dishes as 
other inmates but the Court did require that inmates be 
served adequate meals in punitive confinement 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



32

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 
reexamination 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 “prac­
tically 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 disclosed” ; that the authorities 
should have themselves discovered some of those 
practices without waiting for them to be developed 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



33

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 transcript of depositions and testimony. The Court 
noted that much of the testimony heard in 1974 and 
1975 had not been transcribed. 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 prohibited 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 
isolation 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 
Attorney’s 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 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.



34

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

SUMMARY OF ARGUMENT

I. A. The Eighth Amendment limits the prison 
conditions in which an inmate may be confined. 
Because the prisoner, by reason of the deprivation of 
his liberty, cannot provide for himself, prison authori­
ties 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 constituted cruel and unusual punishment. 
The principle elements on which the District Court 
based its finding of a constitutional 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



35

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.

II. A. The District Court awarded respondents coun­
sel 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 Wilder­
ness Society, 421 U.S. 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 o f  
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.



36

Respondents maintain that the enactment of the 
Fourteenth Amendment worked a pro tan to 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.

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.



37

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 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 
required by the general rule that new legislation be 
applied to pending litigation. Bradley v. School Board 
o f  the City o f  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.



38

ARGUMENT

I.

THE DISTRICT COURT PROPERLY FOR­
BADE THE USE OF INDEFINITE PUNI­
TIVE SEGREGATION AS PART OF ITS 
REMEDY FOR THE UNCONSTITUTIONAL 
CONDITIONS IN THE PUNITIVE FACILI­
TIES

A. The Cruel and Unusual Punishment Clause of the 
Eighth Amendment, which limits both how long19 and 
whether20 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 incarceration 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.” 
Ingraham v. Wright, 51 L.Ed.2d 71 1, 729, n. 38 (1977).

l9Weems v. United States, 217 U.S. 349 (1910).
20Robinson v. California, 370 U.S. 660 (1962).



39

As this Court recognized in Estelle v. Gamble, 50 
L.Ed.2d 251, precisely because an inmate is incar­
cerated 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 L.Ed.2d at 259. Estelle held 
that the Eighth Amendment requires the government 
“ to provide medical care for those whom it is punishing 
by incarceration.” Id. In Costello v. Wainwright, 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 provision 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 others21

2National Advisory Commission on Criminal Justice Stand­
ards and Goals, Corrections, pp. 31 (clothing, bedding, light, 
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, § 1(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 facilities), 19

(continued)



40

insist that society “be required to care for the prisoner, 
who cannot, by reason of the deprivation of his liberty, 
care for himself.” Estelle v. Gamble, 50 L.Ed.2d at 
2 60.* 22 A deprivation of such necessities, like a
withholding of medical care, is a form of punishment 
which cannot be resorted to for any offense or 
infraction.23

(footnote continued from preceding page)
(bedding), 20(1) (food), 21(1) (exercise) (1955). National 
Sheriffs 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),

22The 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 
conditions 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).

23Such 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 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. California, 370 U.S. 660 (1962).



41

Unlike other constitutional questions concerning the 
operation of prisons, enforcing minimal standards of 
food, clothing, shelter and the like will not ordinarily 
affect the responsibilities 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 control of the prison staff. In the instant 
case, for example, the uniquely deplorable conditions 
discovered in 1969, including 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 consistent 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



42

resources necessary to fall within the limits set by the 
Eighth Amendment.24

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 Amendment, 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 Arkansas25 are generalized requirements of 
decent treatment, while others are more detailed.26 
Where, as in Arkansas,27 those statutes are supple­
mented by administrative regulations, the regulations

24See Gates v. Collier, 501 F.2d 1291, 1319-22 (5th Cir. 
1974).

25Ark. Stat. Ann. §46-116 requires that “Persons committed 
to the institutional care of the Department shall be dealt with 
humanely with efforts directed to their rehabilitation.”

26See, e.g., New York Corrections Law §137 (1977 Supp.).

27The 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 obligation 
“ [t] o develop minimum standards for the construction, mainten­
ance and operation of such criminal detention facilities.” 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 Amendment. 
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).



43

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 endorsements 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 public28 or legislature, the severity of 
those conditions is rarely tested against community 
standards, and the judicial enforcement of the prohibi­
tion 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 factual and legal issues. Some practices, such as the 
deliberate withholding of medical attention, are per se 
violations 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 practices may do so. Gates v. 
Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). Some

28See 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”).



44

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 consti­
tuted cruel and unusual punishment. That conclusion 
was reached reluctantly, 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 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 
particularly concerned were overcrowding,29 an inade­

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).



45

quate diet and pervasive 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 times used to 
house three or four inmates.30 Thus frequently 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.

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 calories a day.31 Although this diet

30The 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.

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 segrega­
tion 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).



46

was supplemented every third day with a regular meal, 
there was substantial evidence that the guards deliber­
ately gave only a partial serving of that meal to some 
inmates. 410 F. Supp. at 276, n. 11. Practically 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 concoction, is unclear.32 Petitioners them­
selves recognized that the actual nutritional intake of 
inmates in punitive segregation was such as to require a 
thorough physical examination 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 secur­
ity . .  . [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 controlled but 
chronic malnutrition; the role of the medical personnel 
was not to prevent this partial starvation, but merely to

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 ol 
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.



47

assure that it did not cause death or permanent 
injury.33

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 discrimination against 
them continued. 410 F. Supp. at 280-81. Although 
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 
overcrowding and sanitary conditions in the punitive 
wing contributed to the spread of contagious diseases. 
410 F. Supp. at 258-9.

33The 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 o f  Correctional Standards, p. 420 (1972).



48

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 emergency,34 stopped 
the serving of grue and directed the petitioners to 
provide inmates with a nutritionally adequate diet,35 
and limited the period during which an inmate could be 
confined in punitive isolation to 30 days.36 The Court 
reaffirmed, but did not significantly expand, its 
previous injunction against racial and religious discrimi­
nation. 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 petitioners were made 
initially responsible for framing the study and imple­
menting any resulting recommendations. Although the 
District Judge made clear Iris concern that changes were 
necessary 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, to a 
substantial degree the District Court continued its 
earlier approach of noting the existence of constitu­
tionally suspect practices but refraining from issuing

^410 F. Supp. at 277.
3S410 F. Supp. at 277.
36410 F. Supp. at 278.



49

detailed injunctive requirements in the hope that 
petitioners would act without them.37

C. There are a number of important issues of 
constitutional law which, although suggested by peti­
tioners’ 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 
indefinite punitive segregation is unconstitutional per 
se.38 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 
Building at the Cummins facility.39 While other lower 
courts in other cases have been asked to declare such 
indefinite isolation impermissible in all cases, no such 
determination was made in this case. Even those courts

37We 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 o f New 
Kent County, 391 U.S. 430, 439 (1968).

38The petition for writ of certiorari, and petitioners’ phrasing 
of the Third Question Presented, may have suggested this was the 
substantive issue in controversy.

39At the time of the court’s opinion only 3 inmates were in 
punitive isolation at Tucker. See note 18 supra.



50

which have addressed that issue and concluded that 
indefinite segregation is not unlawful per se have 
emphasized that such segregation might be unconstitu­
tional “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 major infraction.40 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 regulations 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 with those suggested by corrections ex­
perts.41 As the District Court noted, its order does not

^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.

41See, e.g., American Correctional Association, Manual of 
Correctional Standards, 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).



51

interfere with the use of administrative segregation or 
criminal prosecution to punish 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 petitioners to punish a series 
of major infractions. Ten days after the District Court 
entered the lengthy opinion of March 19, 1976, 
reported at 410 F. Supp. 251, petitioners filed a 
Motion to Alter or Vacate. Item I V  of that motion 
stated:

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 proceed­
ing, 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



52

punitive confinement, 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 abused to circumvent the 30 day limitation.43

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 fourteen 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 segrega­
tion. Recalcitrant inmates at the end of this period 
should be fed a normal diet. After two or three

42Clarifying Memorandum Opinion, April 2, 1976, p. 3. A. 
188.

43/d, pp. 3-4. A. 188.



53

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 “recalcitrant” and “hostile” .45 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 the use of any other methods for 
dealing with recalcitrant or hostile prisoners.46 4 1 0 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 opportunity 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

^Arkansas Department of Corrections, Disciplinary Pro­
cedures, p. 14.

451975 Transcript, Volume 23, , p. 47.
46The 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.



54

been in light of the vagueness of that standard,47 Unlike 
a civil contempt proceeding, 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 traditionally 
been imposed in Anglo-American jurisdictions only for 
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 
including that provision in its order remedying the clear 
and undisputed 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 consider­
able 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

47For an example of the potential for abuse inherent in a 
policy of using indefinite sanctions to make a prisoner 
“subservient and break him down” , see Wright v. McMann, 321 
F. Supp. 127 (N.D. N.Y. 1970), a ff’d 460 F.2d 126 (2d Cir. 
1972), cert, denied 409 U.S. 885 (1972).



55

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 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 
IJ.S. 153, 173 (1976). While other deprivations might 
be lawful for even a period of weeks, “ [i] n some 
instances, 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 IJ.S. 878 (1973). Where, as here, the 
conditions and period of incarceration combine to 
create a constitutional 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 
reasonably in choosing the latter course.48

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



56

The 30 day limitation served as well to remedy for 
all inmates, however long their sentence to punitive 
segregation, the unconstitutional egregious overcrowd­
ing. The total population in the punitive wing at 
Cummins on any given day is a function of the number 
of inmates recently ordered into punitive segregation 
and of the length of each sentence. For example, if on 
the average, ten inmates a day are remanded for a 
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 isolation 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 278.49

Many of the abuses which contributed to the 
unconstitutionality 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 meaningfully monitored and

49In the hypothetical case described in the text application of 
the 30 day limitation would reduce the average population in 
punitive confinement from 105 to 75.



57

enforced without a substantial ongoing federal effort.50 
The District Court also noted a number of practices, 
such as the training and deployment of guards, which 
contributed substantially to the unconstitutional condi­
tions, but which it was understandably reluctant to 
directly interfere with. The District Court could have 
issued detailed orders regarding these and other 
practices of which inmates had complained, enforcing 
those orders through reporting requirements, grievance 
machinery, or other means.51 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 
petitioners would take voluntary corrective action if the 
court brought the facts and laws to their attention,

50One 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. 11.

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



58

exhibited great reluctance to directly order the 
petitioners to conform their conduct to the constitu­
tional 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 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 principles, was the least 
intrusive injunctive order that would have remedied the 
constitutional violations, and was long overdue.

II.

THE DISTRICT COURT HAD THE AU­
THORITY TO AWARD COUNSEL FEES 
AGAINST THE DEPARTMENT OF COR­
RECTION

The District Court awarded counsel fees because the 
petitioners had acted in bad faith. 410 F.Supp. at



59

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, wantonly, or for oppressive rea­
sons. . . .” 421 U.S. at 2 5 9.52 This rule has been applied 
to a variety of forms of conduct, including an 
intentional violation of the plaintiffs constitutional or 
statutory rights,53 an inexcusable default on an

52See also Runyon v. McCrary, 427 U.S. 160, 183 (1976); 
F.D. Rich 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).

53The 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. o f Powhatan 
County, 321 F.2d 494 (4th Cir. 1963), cited with approval in 
Rich and Hall; Richardson v. Communications Workers o f  
America, 530 F.2d 126, 132 (8th Cir. 1976); Doe v. Poelker, 
515 F.2d 541, 547 (8th Cir., 1975).



60

obligation to remedy a past or existing violation,54 an 
unjustifiable defense of clearly unlawful conduct,55 or 
dilatory, fraudulent, or otherwise improper litigation 
tactics.56 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 was occurring in the 
prisons for which they were responsible,57 (4) despite a 
series of hearings and written and oral orders from the

54Bradley 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), affd 409 U.S. 942.

55Newman v. Piggie Park Enterprises, supra; Fairley v. 
Patterson, 493 F.2d 598, 606 (5th Cir. 1974).

56Universal Oil Products Co. v. Root Refining Co., 328 U.S. 
575, 580 (1946).

57Compare Matter o f Yamashita, 321 U.S. 1, 14-16 (1945).



61

court over the course of the litigation, constitutional 
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. Wilder­
ness 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 
circumstances 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 o f  Correction, 505 F.2d 194 
(8th Cir. 1974). The court also directs that counsel 
be reimbursed for the reasonable and necessary 
expenses paid or incurred by them, including the 
expenses of employing law students to assist in the 
preparation 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



62

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, presumably out of their 
personal resources.58 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 Amend­
ment 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 officials in their official 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 doctrine of sovereign immunity, but 
this Court unanimously affirmed the award without 
opinion. 409 U.S. 9 42.59 In Alyeska Pipeline Service

58Unlike 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 involved, 
and entirely justifiable, since the bad faith relates to the personal 
conduct of Mr. Hutto and his predecessors.

59This 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.



63

Co. v. The Wilderness Society, 421 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 
Attorneys’ Fees Act of 1976. 50 L.Ed.2d 581 (1976). 
The courts of appeals are divided on this question.60

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

60Three 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 v. 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 Amend­
ment 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 o f 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, o f 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).



64

and Citizens of 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 extent 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 a state by its 
own citizens.61 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. Department o f Treasury, 323 U.S. 459, 464 
(1945). It is this latter doctrine with which this case is 
concerned.

61In 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.



65

The fact that an order against a state official directs 
the official 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 preclude the federal courts from 
directing state officials 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 Constitution 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 
officials.” 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



66

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 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 o f 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 
administration 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 impor­
tant 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 178 9 62 the federal

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



67

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 
Federal Rules of Civil Procedure,63 the Federal Rules of 
Criminal Procedure,64 the Federal Rules of Appellate 
Procedure,65 the Rules of the Supreme Court,66 and the 
United States Code.67 These rules and statutes are 
literally 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 official. 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.

63Federal Rules of Civil Procedure, Rules 30(g), 37(a)(4), 
41(d), 43(f), 54, 55(b)(1), 56(g), 65(c), 68.

^Federal Rules of Criminal Procedure, Rule 38(a)(3).
65Federal Rules of Appellate Procedure, Rules 7, 38, 39.
66Rules of the Supreme Court, Rules 14, 18, 36(3), 57, 60.
67See e.g., 28 U.S.C. §§1331, 1332, 1446, 1911-29, 2101(f), 

2103.



68

That awards of costs are not subject to the Eleventh 
Amendment is consistent with the analysis in Edelman. 
The 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 incident 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 principle announced in Ex Parte 
Young.” Edelman v. Jordan, 415 U.S. 651, 668 (1974). 
Were this Court to held such awards impermissible 
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



69

Arkansas as a matter of state law. Arkansas Act 543 of 
1977, which became law on March 18, 1977 provides in 
pertinent part that the State “shall pay actual damages 
adjudged by a state or federal cou rt. . . 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 witnesses, 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 his 
writ purchased.”68 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

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



70

Congress has adopted more than a score of statutes 
authorizing awards of attorneys’ fees; in virtually every 
case that award was made an item to be included as 
part of the taxable costs.69 In England costs have

69See e.g., 5 U.S.C. §552(a)2E (court may assess “attorneys’ 
fees and other litigation costs”); 7 U.S.C. §210(f) (successful 
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 antitrust action to recover 
“the cost of suit, including a reasonable 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 including 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

(continued)



7!

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 includ­
able as part of costs.70 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).

(footnote continued from preceding page)
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.S.C. §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”).

70Mr. 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 followed. Id.



72

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 .69, 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 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 construction 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 tan to repeal 
of the Eleventh Amendment, and that the Eleventh 
Amendment thus has no application 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). Respondents concur in 
the views as to the impact of the Fourteenth 
Amendment are set out in the Brief Amicus Curiae of



73

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.

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 
attorneys general” , had vindicated important public 
policies; this private attorney general rule was applied 
with particular frequency 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)



74

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 required by that decision.71 Acting with 
unusual dispatch Congress completed hearings within 
that year,72 The Senate and the Senate and House 
Judiciary Committees reported out similar bills in June 
and September of 19 7 6.73 74 Both reports emphasized that 
the basic purpose of the legislation was “to remedy 
anomalous gaps in our civil rights laws created by the 
United States Supreme Court decision in Alyeska'"14 
and to revive the practice sanctioned by numerous 
lower courts, but disapproved by footnote 46 of the 
Alyeska opinion, of awarding fees to private attorneys 
general in civil rights cases.75 After debates emphasizing

71H.R. 7826,7828, 7968, 7969, 8220, 8221, 8821, 8742, 
8743, 9552, 94th Cong., 1st Sess.

72Hearings 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 
Subcommittee on Representation of Citizen Interests of the 
Senate Judiciary Committee, 93rd Cong., 1st Sess. (1973).

73S. Rep. No. 94-1011; H.R. Rep. No. 94-1558.

74S. Rep. No. 94-1011, p. 1.
75H,R. Rep. No. 94-1558, p. 2.



75

Congress’ intent to supply the express authorization of 
fees required by Alyeska, the Senate ended a filibuster, 
both houses approved the bill, and it was signed into 
law on October 19, 1976.76

76Representative 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).”

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 authorization 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).



76

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 provision 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.”

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. “(O)ne who prosecutes or defends a suit 
in the name of another, to establish and protect his 
own rights, or who assists in the prosectuion 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, 486-87



77

(1910).77 A state or other entity may elect 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 
1112.13.

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 o f  Kenosha v. 
Bruno, 412 U.S. 507 (1973); Monroe v. Pape, 365 U.S. 
167 (1961).78 In most of these cases the city or state

11 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.), affd, 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).

78To 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 o f 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 
Department o f Corrections, PB-72-C-15, Russell v. Department o f  
Corrections, PB-72-C-155.



78

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 costs. In the instant case the Attorney General of 
Arkansas assumed control of the litigation from the 
outset and conducted the lengthy and at times 
intransigent defense.79 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 
unambiguously 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, defen­
dants in these cases are often State or local bodies

792A 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 
commissioners, in all litigation where the interests of the 
State are involved.”



79

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 officials are frequently the defen­
dants in cases brought under the statutes covered 
by [the bill]. See, e.g., Brown v. Board o f  
Education . . . Such governmental entities and of­
ficials have substantial resources available to them 
through funds in the common treasury, including 
the taxes paid by the plaintiffs themselves. . . . The 
greater 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 including special 
purpose units of general local governments.”80 Senator 
Helms urged that the amendment was necessary to 
“afford protection to financially pressed State and local

80122 Cong. Rec. S. 16433 (daily ed. Sept. 22, 1976).



80

governments.” 81 The Senate rejected the proposal by a 
vote of 59 to 28.82

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 attention of the House 
Judiciary Committee.83 The House Report, issued two 
months after the decision in Fitzpatrick v. Bitzer, 427 
U.S. 445 (1976), expressly invoked that decision as 
upholding the power of Congress to subject a state to 
monetary liability despite the Eleventh Amendment.84 
The Senate Report, written before Fitzpatrick85 as­

81/d ,  at S. 16432, “This legislation provides that State and 
local governments and their officials can be defendants 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 financially hard-pressed State and local governments.”

82M , S. 16434.
83Hearings Before the Subcommittee on Courts, Civil Liberties 

and the Administration of Justice of the Committee on the 
Judiciary, 94th. Cong., 1st Sess., pp. 36, 41, 268 (1975).

s4Id. , 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.”

85The report was filed on June 29, 1976, the day after the 
decision in Fitzpatrick.



81

serted 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 compliance with”86 
sections 1983, etc., noted that counsel fees were 
properly regarded as “costs” , and cited the decision in 
Fairmont Creamery exempting counsel fees from the 
scope of the Eleventh Amendment.87 In the House 
debates Congressman Drinan, the bill’s sponsor, reiter­
ated Congress’ authority to impose liability on a state 
notwithstanding the Eleventh Amendment.88

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

86This was clearly an attempt to invoke the standard 
announced by the Court in Edelman v. Jordan, discussed supra.

87S. 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 would 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 Fitzpatrick 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).



82

instances where these laws are violated, it is 
necessary 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 authorizing 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.

H.R. Rep. No. 94-1558, p. I.89 In any §1983 case 
involving protracted litigation the amount of the fee to 
which a prevailing plaintiff would be entitled could 
easily exceed the personal 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

89See 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. September 21, 1976). 
SI643 (remarks of Senator Hathaway) (daily ed. September 23, 
1976), S17051 (remarks of Senators Kennedy and Tunney), 
S17052 (remarks of Senators Kennedy and Abourezk) (daily ed. 
September 29, 1976); H I2155 (remarks of Rep. Sieberling), 
H12163 (remarks of Rep. Fish), H12164 (remarks of Rep. 
Holtzman) (daily ed. October 1, 1976).



83

fee provisions, such as the Civil Rights Act of 196490 
the Emergency School Aid Act of 1972,91 awards 
against cities and states are clearly authorized.92 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 laws 
guaranteeing civil and constitutional rights,”93 and 
specifically referred to Civil Rights94 and Emergency 
School Aid Acts95 as establishing the standards it 
wished to apply to litigation under 42 U.S.C. §1983. 
The intended uniformity 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

90See, e.g., 42 U.S.C. §2Q00e-5.
9120 U.S.C. §1617.
92Fitzpatrick v. Bitzer, 427 U.S. 445 (1977); Bradley v. 

School Board o f City o f Richmond, 416 U.S. 696 (1974).
93H.R. Rep. No. 94-1558, p. 1; see also id., p. 8; S. Rep. No. 

94-1011, pp. 1, 4; 122 Cong. Rec. S16252 (remarks of Senator 
Kennedy) (daily ed. September 21, 1976); HI 2151 (remarks of 
Rep. Anderson), H12159 (remarks of Rep. Drinan), H12163 
(remarks of Rep. Kastenmeier) (daily ed. October 1, 1976).

94S. Rep. No. 94-1011, pp. 4, 5; H.R. Rep. No. 94-1558, p. 6; 
122 Cong. Rec. S I6251 (remarks of Senator Scott) (daily ed. 
September 21, 1976), S I6430-31 (remarks of Senator Hathaway) 
(daily ed. September 23, 1976), H1215Q (remarks of Rep. 
Anderson), H12159 (remarks of Rep. Drinan), H12163 (remarks 
of Rep. Kastenmeier), H12165 (remarks of Rep. Seiberling) 
(daily ed. October 1, 1976).

95S. Rep. No. 94-1011; p. 4; H.R. Rep. No. 94-1558, pp. 1, 3,
6.



84

Fourteenth 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 unusual96 prison condi­
tions 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 awarded without regard to the defendants’

96The 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).



85

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 
governor,97 legislator,98 judge,99 police officer,100 school 
official,101 or prosecutor.102 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 special “express statutory 
language.” 103 Precisely what language petitioners claim 
must be used is not clear. The decisions of this Court 
support no such technical requirement. In Employees v. 
Department o f  Public Health & Welfare, 411 U.S. 279 
(1973), the “literal language” of the statute rendered 
state agencies liable to suit in federal court. 411 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

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



86

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 federal-state 
relationship.” 104 Employees, 411 U.S. at 286. In the 
instant case that history is unambiguous, and the 
resulting liability for counsel fees is an ordinary

104This is well exemplified by the circumstances of Employees 
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 subjected the states to 
an unusual provision for double damages; the Court declined on 
the record to infer an intent to create federal jurisdiction. In 
Fitzpatrick 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.



87

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 o f the 
City o f 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 legislative 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 
pending cases.105

105H.R. Rep. No. 94-1558, P. 4, n. 6. “In accordance with 
applicable decisions of the Supreme Court, the bill is intended 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 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

(continued)



88

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 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 Alyeska,106

(footnote continued from preceding page)
long-standing rule to an attorney fee provision, including 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 Ashbrook 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 o f City o f 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. S I7052 (daily ed. September 29, 
1976).

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



89

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 constitutional 
responsibilities. 416 U.S. at 717-20. This case presents 
no exceptional circumstances which would warrant 
disregarding the plain intent of Congress, and the rule 
in Bradley, that this newly enacted legislation be 
applied to pending cases.



90

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, 
711 West Third Street 
Little Rock, Arkansas 72201

JACK GREENBERG 
JAMES M. NABR1T, III 
CHARLES STEPHEN RALSTON 
STANLEY BASS 
ERIC SCHNAPPER 
LYNN WALKER 

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



la

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 defendant 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 o f  Labor, No.
72-5704;
Papish v. Board o f  Curators o f  University o f
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 Pennsyl­
vania) ;



2a

Chapman v. Meier, No. 73-1406 (Defendant was 
the Secretary of State of North Dakota);
Hagans v. Levine, No. 72-6476 (Defendant was the 
Commissioner of the New York State Department 
of Social Services);
Communist Party o f  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 Commis­
sioner 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. 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 o f Central Missouri v. Dan- 
forth, 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).



3a

(c) Civil Actions for injunctive or monetary relief, 
against a state or 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. 72-39.7;
Local 16 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. Kady, 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;



4 a

Antoine v. Washington, No. 73-717;
Taylor v. Louisiana, No. 75-5744;
Jenkins v. Georgia, No. 73-557;
Spence v. Washington, No. 72-1690; 
Codispoti v. 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;
Hanker son v. North Carolina, No. 75-6568; 
Coker v. Georgia, No. 75-5444.

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