Constitutionality Of Use Of Stun Guns As Punishment In Prisons

Constitutionality of Use of Stun Guns as Punishment in Prisons

Submitted on Thursday, December 07, 2006

CONSTITUTIONALITY

I have researched pertinent cases in review of constitutionality on the issue of using stun guns on prisoners for violations of serious infractions of prison rules. During this I first find that in Beard v. Banks the Supreme Court ruled that "prison rules restricting a prisoner's constitutional rights must be reasonably related to legitimate penological interest." This ruling would seem to give a way of establishing a policy for use of the punishment. Next I look at this issue as being one that would be restricting a prisoner's constitutional right. It had been historical ruled by the court that punishment only was under review of the eighth amendment if it was part of the sentence for the offense they were convicted of. From the case of Hudson v. McMillian we find that the Supreme Court changed this matter. The main decision is that a prisoner does not have to suffer a significant injury from excessive force to be actionable under the eighth amendment. Justice Blackmun even makes a statement during his concurring judgment that has a great interest to us on this issue. He says in striking down the significant injury requirement to meet the cruel and unusual punishment violation that with this it would allow state sponsored torture. Justice Blackmun gives several examples of activities of things that should not be allowed but would not cause significant injury. The one of main interest is "shocking them with electric currents." Blackmun gives these examples as things that would be allowed under the eighth amendment if the significant injury requirement was allowed to remain as the standard. This leads me to conclude that the using a stun gun as punishment would be a violation under the eighth amendment.

This would move me back to view Banks v. Beard. We would have to establish legitimate penological reason. It is clear use of stun gun during a disturbance used as an effort to quell the disturbance would be allowed. I believe a showing of how the use of the stun gun would in effect maintain order in the prison population would need to be shown. In the punishment stage we would be held to the lower level standard of unnecessary and wanton infliction of pain as set forth in Estelle v. Gamble. During a disturbance we would be held to a higher level standard of maliciously and sadistically for the very purpose of causing harm. Although I believe this punishment would not be malicious or sadistic I do not believe a special circumstance would be present to use this standard.

I turn to Porter v. Nussle and find that if we decide to pursue this policy then we need to have some administrative rules for prisoners to be able to address complaints about the punishment. This should include the ability to put on evidence and question witnesses. The placement of these administrative rules may shield us from lawsuits concerning this policy as long as we show that we are fair in our decisions during the exercise of the rules.

Lastly, I examined the case of Hope v. Pelzer. Up to this point I felt that if set up right we might be able to institute this punishment policy if it was carefully crafted. The decision in Hope v. Pelzer gives me clear language that we should not pursue this policy. In this case the corporal punishment the court dealt was handcuffing a prisoner to a hitching post. The facts of this case show that Hope was punished for violation of rules. This was not done because of refusal to follow orders or a continuing violation of rules but for committing a violation and receiving punishment for that violation. Not only would we be putting ourselves at risk for a violation of the eighth amendment but any employees that would participate in the punishment would be put at risk. It is clear in this case that our employees would not be given qualified immunity as a reasonable person in 1995 should know this is not acceptable. I foresee that some of our employees would be knowledgeable of this and refuse to participate. This would seem to require us to pursue charges against our employees for not following orders.

In Ort v. White it was suggested that it would be unconstitutional to inflict gratuitous pain on an inmate (by refusing him water), when punishment was unnecessary to enforce on-the-spot discipline. I believe our policy would also fall under this as we do not intend to give our low level correctional officer the decision whether to use this punishment. This would in effect eliminate the on-the-spot discipline.

I go to The Georgetown Law Journal Annual Review of Criminal Procedure 2006 to review this matter even further. I move to article VI which is titled "Prisoners' Rights." In this article it talks about discipline. During this discussion it is agreed that prisoners' constitutional rights can be taken if there is a legitimate penological interest to be gained. In determining the reasonableness of a prison regulation, courts consider whether; a "valid, rational connection" exists between the regulation and the legitimate interest advanced by the regulation; alternative means for exercising the asserted right remain available; accommodation of the asserted right will adversely affect guards, other inmates, and the allocation of prison resources generally; and an obvious alternative to the regulation exists "that fully accommodates the prisoner's rights at de minimis cost to valid penological interests.

This review reminds us that if a challenge is made by a prisoner he would have to show that we acted with a sufficiently culpable state of mind. Just the research I have done and the information I have supplied the Warden in this report would show that we have acted with a sufficiently culpable state of mind. The prisoner would also have to show a sufficiently serious deprivation. I again believe this would be fairly easy to show.

Lastly, the review discusses the significant injury non requirement and seems to agree with me that this would bring our policy under review of the eighth amendment.

I also wanted to look at what effect our actions would have on employees. I went to the University of Arkansas at Little Rock Law Review. I went to the spring of 2004 issue and review an article titled "Qualified After Hope v. Plezer: is "Clearly Established" Any More Clear." The discussion in this review leads me to believe that they agree with my conclusion that we would be putting our