In Hope v. Pelzer, 536 U.S. 730 (2002), Pryor vigorously defended Alabama’s practice of handcuffing prison inmates to hitching posts in the hot sun if they refused to work on chain gangs or otherwise disrupted them. In 1995, Alabama was the only state in the country that still used chain gangs and the only one that used the hitching post. 536 U.S. at 733. The post was a horizontal bar to which inmates were handcuffed “in a standing position and remain[ed] standing the entire time they [were] placed on the post.” 536 U.S. at 734. The plaintiff in this case, Larry Hope, charged that he had been handcuffed to a hitching post twice, one time for seven hours, during which he was shirtless “while the sun burned his skin. . . During this 7-hour period, he was given water only once or twice and was given no bathroom breaks. At one point, a guard taunted Hope about his thirst. According to Hope’s affidavit: ‘[The guard] first gave water to some dogs, then brought the water cooler closer to me, removed its lid, and kicked the cooler over, spilling the water onto the ground.’” 536 U.S. at 734-35.
Pryor’s brief contended that Mr. Hope had not been subjected to cruel and unusual punishment in violation of the Eighth Amendment. In fact, Pryor’s brief asserted that “the risks to Hope of pain, dehydration, sunburn, wrist injury, and harassment were hardly greater and perhaps even less than that faced by his fellow inmates who dutifully worked in the sun all day” on the chain gangs. Brief for the Respondent, Hope v. Pelzer, 2001 U.S. Briefs 309, *22 (Mar. 25, 2002). Pryor contended that the use of the hitching post was justified because the Alabama Department of Corrections considered it to be “a cost-effective, safe and relatively pain-free way to impel inmates to work.” Id. at *31. Pryor also argued than even if Hope’s Eighth Amendment rights had been violated, the prison officers named as defendants were immune from suit because they had not violated a “clearly established” right. Id.
The Supreme Court rejected both of Pryor’s arguments. According to the Court, “[d]espite the clear lack of an emergency situation, the respondents knowingly subjected [Hope] to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation. The use of the hitching post under these circumstances violated ‘the basic concept underlying the Eighth Amendment, [which] is nothing less than the dignity of man.’” 536 U.S. at 738 (citation omitted).73 The Court further held that the prison officers were not immune from suit, explaining among other things that “[t]he obvious cruelty inherent in this practice should have provided [them] with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity . . . .” Id. at 746 (emphasis added).
Pryor immediately criticized the Court’s ruling. Quoting from a dissent by Justice Thomas (joined by Chief Justice Rehnquist and Justice Scalia), Pryor assailed the Court for ruling based on “‘its own subjective views on appropriate methods of prison discipline.’”74
Pryor is an ardent supporter of the death penalty. While this is unremarkable in America today, Pryor has taken his support to extremes. For example, on behalf of Alabama and four other states, Pryor in 2002 filed an amicus curiae brief with the Supreme Court in Atkins v. Virginia in which he urged the Court not to adopt a per se constitutional rule prohibiting the execution of the mentally retarded. Brief of the States of Alabama et al. in Support of Respondent, Atkins v. Virginia, No. 00-8452, 2000 U.S. Briefs 8452 (Jan. 14, 2002). According to Pryor, there was no national consensus against executing the mentally retarded. Pryor urged the Court to allow the states “to continue exploring the issue of when mental retardation should be a factor negating a capital defendant’s actual responsibility and culpability as opposed to when it is, as it is in Atkins’s case, merely an attempt to avoid execution.” Id., 2000 U.S. Briefs 8452, *28 (emphasis added). The Court rejected these arguments and held that the 8th Amendment prohibits the execution of the mentally retarded, specifically noting that the Amendment “‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’” Atkins v. Virginia, 536 U.S. 304, 311-12 (2002).
In 2000, even as all but two other capital punishment states had moved to more “humane” alternatives to electrocution, Pryor defended Alabama’s continued use of the electric chair. Early that year, the Supreme Court temporarily stayed the execution of an inmate in Alabama who was about to be electrocuted. The inmate had sought Supreme Court review of his claim that the use of the electric chair constituted cruel and unusual punishment in violation of the Eighth Amendment.76 In the press, Pryor defended the use of the electric chair as “almost painless and instantaneous.”77
The possibility of Supreme Court review of the constitutionality of electrocution prompted Alabama legislators to introduce two different bills concerning the state’s method of execution, including one that would have made lethal injection the primary method of execution but would allow an inmate to choose the electric chair. This was similar to legislation that had been adopted by Florida a year earlier and that had ended litigation concerning that state’s use of the electric chair. Pryor made clear that he supported the continued use of the electric chair and opposed a switch to lethal injection: “I do not believe that we should be bullied by the fear that the Supreme Court could rule against us. If the court really feels it’s so important for this issue to be decided, let’s give them a case. . . I do not support this state doing what the state of Florida did.”79 Nevertheless, two years later, Alabama did pass legislation changing the primary means of execution to lethal injection.80
In October 2000, Pryor urged the Alabama State Bar Board of Bar Commissioners not to support a proposed moratorium on the death penalty in Alabama. Impugning the motives of those who have raised concerns about execution of the innocent, Pryor claimed that “the death penalty moratorium movement is headed by an activist minority with little concern for what is really going on in our criminal justice system.”81