Anita Hill, Harvey Weinstein, And National Amnesia

In October 1991, I, along with millions of other curious viewers, watched the Senate nomination hearings for the Supreme Court nominee, Clarence Thomas. My curiosity, like that of many others, had been piqued by the presence of Thomas’ former assistant, Anita Hill, who had accused him of sexual harassment at her workplace. On the second day of her testimony, I was joined in my viewing by my girlfriend; we worked together at AT&T’s Bell Laboratories in New Jersey–she as a technical writer, I as a systems analyst. As we watched the hearings, my girlfriend grew increasingly animated–she commented time and again on Hill’s ‘bravery,’ her ‘courage,’ on how difficult it must have been for her to speak up. She spoke too, of the many incidents of harassment–major and minor–she herself had suffered at her workplace; she told me how all around her, women were talking–to each other, and to anyone, men included, who would listen–about how Anita Hill was giving voice to a complaint all too often ignored. And indeed, over the next few days, in newspapers, on talk shows, in usenet newsgroups, you could hear women talking about how Anita Hill’s testimony had blown the lid off the modern workplace’s biggest and most enduring scandal: the daily rituals of intimidation, humiliation, harassment that women had to undergo within its precincts. All around me, everyone agreed: this was a national ‘conversation’ we needed to be having; the world was not going to be the same again after these kinds of ‘revelations’; boyfriends and husbands were listening. (On the night Thomas’ confirmation was received, I was at my girlfriend’s house. When we heard the final 52-48 vote to confirm, she kicked the bed in disgust and anger; no one would listen to women; despite all that Hill had said, despite her transparent sincerity, the usual fog of obfuscation and denial–and in Thomas’ case, an astonishing self-pitying rant–had derailed her claims.)

It is now 2017, some twenty-six years on. The years have rolled on, much has changed, but yet more endures. We have been assured, thanks to La Affaire Harvey Weinstein and the #MeToo campaign, that we are at a national watershed moment when it comes to the problem of sexual harassment, that we now have unprecedented awareness about the problems that women face in the workplace–and elsewhere–when it comes to the business of being able to simply maintain some kinds of boundaries around themselves and their bodies. Back in 1991, in my workplace, there had been many employee seminars for ‘sensitivity training’ and the like–all to increase workplace awareness about the problem of sexual harassment. The men hadn’t liked it then; the current evidence seems to suggest all those seminars, at workplaces nationwide, had little effect–the Weinstein scandal is merely the most publicized of the many sexual harassment ‘scandals’ since. There is reason for pessimism again: the #MeToo campaign is already old hat, and business is returning to normal all too soon.

We’ve been here before; we might yet find ourselves at these crossroads again. Our memories are all too fragile, all too easily effaced.

‘A Manual For The Police On How To Conduct Beatings’

Leonard Strickland was beaten to death; in jail, by prison guards. Those who did so, and those who supervised them, were secure in the knowledge that very little would be, and could be, done to bring them to justice. History and the law is on their side.

In 1992, in one of Clarence Thomas‘ earliest cases on the Supreme Court, Hudson v. McMillian, Thomas found himself on the losing side in a 7-2 decision. Keith Hudson, an inmate who had suffered a vicious beating at Angola Prison, had filed suit in a federal court, claiming violation of his Eighth Amendment rights. He won $800 in damages as the judge found he had been beaten “maliciously, unnecessarily, and wantonly.” On appeal, the case had made its way to the Supreme Court, where the decision was “cautiously” affirmed with only Antonin Scalia and Thomas dissenting.  Justice Sandra Day O’Connor distinguished this case from “those cases where deliberate indifference to a prisoner’s health is not a violation unless there is serious injury.” The relevant test was “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” (Note the ‘good faith’ exception.)

Thomas, in his dissent, claimed that “a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment’….The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas based his decision on: the culture and values of the eighteenth century, the history of the cruel and unusual punishment clause, the Constitutional Convention and state ratifying convention debates, and of course, the text of the Constitution. He noted the Supreme Court had, for a very long period in American history, rejected all “conditions of complaint ” claims and not held the cruel and unusual punishment clause relevant to prison conditions. He concluded that “Today’s expansion of the Cruel and Unusual Punishment Clause beyond all bounds of history and precedent is…yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society….[including] any hardship that might befall a prisoner during incarceration.” Thomas went on to suggest that older cases affirming prisoners’ claims of beatings and torture should be overturned.

Scalia and Thomas lost, but they set the stage for what followed.

In 1996, thanks to extensive lobbying by William Rehnquist, the Supreme Court Chief Justice who, though impatient with prisoners rights claims, for tactical reasons had earlier joined the Hudson v. McMillian majority, Congress passed the Prison Litigation Reform Act, stating prisoners cannot recover damages under the cruel and Unusual Punishment Clause if there is “no permanent damage.” Prisoners cannot recover for pain and suffering even if the beating is “long, brutal, malicious, and wanton.” The Prison Litigation Reform Act was, as Martin Garbus claims, a “a manual for the police on how to conduct beatings and not get sued.”

The immorality and brutality of our prison system is scaffolded by our nation’s laws.

Note: This post is cribbed from Martin Garbus’ Courting Disaster: The Supreme Court and the Unmaking of American Law, Henry Holt, New York, 2002, pp. 74-75.