Evil in the American Justice System
Case 4:
The "Significant 
Injury Test"

Discussion of Case:
   Docket management problems rival overidentification as a cause of evil in our legal system.  There is no dispute that the volume of cases in our court system has reached a crisis level.  In response, the legal system has placed great importance on caseload reduction.  In an effort to meet these demands, many courts have elevated docket management concerns above concerns for individual's rights. 

   All professional cultures are subject to internal demands, in addition to the demands of a larger society.  These demands may differ from those of the official law and larger society.  Many of the internal legal demands on the legal system relate to methods of legal reasoning.  Attorneys feel compelled to present arguments in certain ways, and judges feel compelled to explain their decisions in forms of generally accepted legal reasoning.  Another set of internal demands relates to increases in the volume of civil and criminal cases that must be processed.  Pressure has grown to develop rules that will promote efficient processing of cases.  Frequently, this translates into pressure to reach decisions that discourage resort to the courts.  This nearly obsessive concern for solving docket management problems has produced tortured legal reasoning and has made institutional indifference to individual suffering almost fashionable. 

Keith J. Hudson successfully sued correctional officers for a beating they inflicted at the state penitentiary in Angola, Louisiana. What is remarkable about the case is not that the Court permitted Hudson to keep the $ 800 in damages awarded at his trial, but rather that a unanimous panel of Fifth Circuit judges would have taken it away from him. While Judges Politz, Davis, and Barksdale joined in "deploring the use of unnecessary force in the treatment of prisoners," they concluded that Hudson's injuries from the beating failed to satisfy the Circuit's "significant injury" (read: permanent injury or one requiring hospitalization) test used to determine violations of the Eighth Amendment's prohibition on cruel and unusual punishment. 

The beating of Keith Hudson took place in the early morning hours  of October 30, 1983. Hudson and an inmate in an adjacent cell had argued.  Marvin Woods and Jack McMillian approached Hudson's cell, handcuffed and shackled Hudson, removed him from his cell, and led him to administrative lockdown. On the way there, McMillian told Woods to hold Hudson still so he could "knock the gold teeth out" of Hudson's mouth.  While Woods held the prisoner's jumpsuit, McMillian punched Hudson in the eye, chest, and mouth.  Arthur Mezo, a correctional supervisor, observed this beating and told the two guards "not to have too much fun."  Hudson was left with bruised lips, a black eye, and a swollen cheek. For several months, a cracked dental plate prevented him from eating normally. 

Nothing in prior decisions of the United States Supreme Court required the Fifth Circuit to adopt its "significant injury" test.  It was plainly and simply an attempt by the Fifth Circuit to reduce the volume  of prisoner cases coming before it.  It seems clear that few federal appellate judges have much interest in prisoner complaints; they came to the bench to decide antitrust cases. 

Fortunately, in Hudson, seven members of the Supreme Court rejected the opportunity to adopt the significant injury test as a docket control measure. Justice Blackmun found "audacious" the suggestion "that the interpretation of an explicit constitutional protection is to be guided by pure policy preferences for the paring down of prisoner petitions." Justice O'Connor, speaking for the Court, found that the Fifth Circuit's decision implicitly "ignore[d] the 'concepts of dignity, civilized standards, humanity, and decency' that animate the Eighth Amendment." 

    A strong desire to reduce caseloads undoubtedly is a driving force behind many recent decisions dealing with criminal law and suspects' and prisoners' rights.  It explains how courts could conclude that it is not a constitutional violation for a state to execute an innocent person, or that decisions of trial judges not to depart downward from sentencing guidelines are unreviewable,  or that it is possible for a constitutionally protected zone of privacy to exist that does not include protection against routine body cavity searches of persons awaiting trial.  Taken collectively  these decisions reveal a judiciary that has moved steadily toward an aggregated, empirical approach to justice, and away from individualized justice. 

It is often difficult to determine the degree to which docket management concerns affected decisions in particular cases.  Most judges understand that justice is supposed to be individual; they cannot, without embarrassment, justify decisions primarily on the basis of serving docket management goals. Never will a judge be so candid as to write in her opinion, "Plaintiff loses despite having the facts and the law in his favor because I am convinced that a decision for the plaintiff will encourage too many less worthy lawsuits." When hunting for evidence of cases in which docket management concerns were controlling, it is usually necessary to look beyond the four corners of judicial opinions.  It is necessary to look at the briefs of litigants, caseload statistics, and patterns of judicial decisionmaking..... 

 The Fifth Circuit's "significant injury" requirement was fashioned in response to the rising tide of civil rights lawsuits filed by prisoners.  In a one-year period ending March 31, 1991, prisoners filed 24,905 civil rights lawsuits in the federal courts; in the Fifth Circuit alone, 3,355 such suits were filed.  An amicus brief filed by the States of Texas, Hawaii, Nevada, Wyoming, and Florida praised the Fifth Circuit's significant injury test as an "objective method for winnowing the wheat from the chaff."  The brief reported that "[t]he significant injury requirement has been very effective in the Fifth Circuit in helping to control . . . docket management problems." 

   While the significant injury requirement may assist the Fifth Circuit in controlling its caseload, it also has the effect, as the United States pointed out in its amicus brief, of allowing torture, so long as it leaves no lasting marks.  For example, it would permit the use of the "Tucker Telephone," a hand-cranked device that was used in Arkansas prisons in  the 1960s to administer electrical shocks to sensitive parts of the body.  So long as the resulting injuries were neither permanent nor required hospitalization, prisoners would be fair game under the Fifth Circuit's test. 

   Two well-known studies of prison and guard behavior have documented the danger of loosening constraints in the prison environment.  One study conducted at Stanford University assigned students to the roles of "prisoners" and "guards" for what was to be a two-week experiment.  When researchers noted escalating levels of harassment and aggression directed against students dressed as prisoners, especially in the researchers' absence, they felt compelled to terminate the experiment after only six days.  As this study demonstrated, circumstances can elicit sadistic behavior from people who are not by nature sadistic.  Stanley Milgram, whose 1965 study is considered a classic, reached a similar conclusion. Milgram found that subjects would, when instructed to do so by an authority figure, administer what they believed were increasingly high levels of electrical shocks despite their victims' complaints, pleas to stop, and even shrieks of agony. 

    Prisons are places where evil in its direct, sadistic form is far too often found.  In 1986, the Ninth Circuit considered the complaint of an inmate who suffered ruptured hemorrhoids when a prison guard attempted to plunge a riot stick into the prisoner's anus.  In the same year, the Sixth Circuit considered a case where a correctional officer had waived a knife in a paraplegic prisoner's face, extorted food from him, and failed to relay requests for medical care so that he lay in his own feces for hours....