Attorney General Sheldon Whitehouse recently sided with a group of Alabama prison guards who handcuffed a misbehaving prisoner to a post, removed his shirt, and made him stand in the June sun for seven hours with his arms bound slightly above his shoulders. During his time on the "hitching post," Larry Hope -- who was not given a bathroom break -- was offered water once or twice and taunted by a guard who gave a dog water while denying it to Hope.

Hope sued and his case eventually landed in the US Supreme Court. Whitehouse, in an amicus brief filed with 14 other state attorneys general, supported the guards, arguing that they enjoyed "qualified immunity" because case law was unclear on whether using the hitching post was unconstitutional. The only other Northeast states to join Rhode Island were Connecticut and Pennsylvania.

In June, the high court, in a six-to-three decision, ruled that the prison guards had violated the Eighth Amendment to the US Constitution by subjecting Hope to cruel and unusual punishment. The court's three most conservative members, Clarence Thomas, William Rehnquist, and Antonin Scalia, constituted the minority view.

Whitehouse should not have volunteered to help quash Hope's quest for justice, says state Representative Chuck Levesque (D-Portsmouth), a liberal legislator who raised the issue. "Putting the State of Rhode Island's name on that statement of facts is reprehensible," Levesque says. "Any human being should have known it was cruel and unusual punishment and there would be no immunity."

Although the Phoenix asked to interview Whitehouse, his office referred questions to deputy attorney general Gerald Coyne. The Phoenix also called Whitehouse's campaign, seeking an interview with the Democratic gubernatorial candidate. Campaign manager Bill Fischer instead criticized Levesque, a supporter of rival gubernatorial candidate Myrth York, for "negative campaigning."

Whitehouse joined the amicus brief, Coyne explains, because he wanted to maintain a clear standard of qualified immunity for government workers. Alabama was the only state using the hitching post when the Hope incident occurred in 1995. "It wasn't like people who signed on [to the brief] were trying to preserve hitching posts in their own states," Coyne says. He adds, "It was, absolutely, cruel and unusual punishment."

In fact, the friend-of-the-court brief took no position on whether Hope's treatment was unconstitutional. Instead, it argued only that previous court cases had not clearly declared the hitching post to be cruel and unusual punishment. Without prior case law for guidance, the guards were entitled to qualified immunity, the attorneys general argued.

Writing for the majority, Justice Paul Stevens disagreed. "The Eighth Amendment violation is obvious," he wrote. Hope's treatment was "gratuitous infliction of `wanton and unnecessary' pain," that was unnecessary once he reversed his previous unwillingness to work on a highway chain gang, Stevens wrote.

Alabama employees had other reasons to know their actions were illegal, Stevens noted. A 1994 US Justice Department report, which found use of the hitching post improper, advised that it be discontinued, Stevens wrote. A 1974 US Court of Appeals decision also found that handcuffing Mississippi inmates to fences and cells for long periods was unconstitutional, and Alabama's own regulations called for periodic water and bathroom breaks for inmates on the hitching post.

Issue Date: August 9 - 15, 2002