Hutto v. Finney/Opinion of the Court

MR. JUSTICE STEVENS announced the judgment of the Court.

After finding that conditions in the Arkansas penal system constituted cruel and unusual punishment, the District Court entered a series of detailed remedial orders. On appeal to the United States Court of Appeals for the Eighth Circuit, petitioners challenged two aspects of that relief: (1) an order placing a maximum limit of 30 days on confinement in punitive isolation; and (2) an award of attorney's fees to be paid out of Department of Correction funds. The Court of [p681] Appeals affirmed and assessed an additional attorney's fee to cover services on appeal. 548 F.2d 740 (1977). We granted certiorari, 434 U.S. 901, and now affirm.

This litigation began in 1969; it is a sequel to two earlier cases holding that conditions in the Arkansas prison system violated the Eighth and Fourteenth Amendments. Only a brief summary of the facts is necessary to explain the basis for the remedial orders.

The routine conditions that the ordinary Arkansas convict had to endure were characterized by the District Court as "a dark and evil world completely alien to the free world." Holt v. Sarver, 309 F. Supp. 362, 381 (ED Ark. 1970) (Holt II). That characterization was amply supported by the evidence. [p682] The punishments for misconduct not serious enough to result in punitive isolation were cruel, unusual, and unpredictable. It is the discipline known as "punitive isolation" that is most relevant for present purposes.

Confinement in punitive isolation was for an indeterminate period of time. An average of 4, and sometimes as many as 10 or 11, prisoners were crowded into windowless 8' × 10' cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell. Holt v. Sarver, 300 F. Supp. 825, 831–832 (ED Ark. 1969) (Holt I). At night the prisoners were given mattresses to spread on the floor. Although some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, [p683] then returned to the cells at random in the evening. Id., at 832. Prisoners in isolation received fewer than 1,000 calories a day; their meals consisted primarily of 4-inch squares of "grue," a substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning into a paste and baking the mixture in a pan. Ibid.

After finding the conditions of confinement unconstitutional, the District Court did not immediately impose a detailed remedy of its own. Instead, it directed the Department of Correction to "make a substantial start" on improving conditions and to file reports on its progress. Holt I, supra, at 833–834. When the Department's progress proved unsatisfactory, a second hearing was held. The District Court found some improvements, but concluded that prison conditions remained unconstitutional. Holt II, 309 F. Supp., at 383. Again the court offered prison administrators an opportunity to devise a plan of their own for remedying the constitutional violations, but this time the court issued guidelines, identifying four areas of change that would cure the worst evils: improving conditions in the isolation cells, increasing inmate safety, eliminating the barracks sleeping arrangements, and putting an end to the trusty system. Id., at 385. The Department was ordered to move as rapidly as funds became available. Ibid.

After this order was affirmed on appeal, Holt v. Sarver, 442 F.2d 304 (CA8 1971), more hearings were held in 1972 and 1973 to review the Department's progress. Finding substantial improvements, the District Court concluded that continuing supervision was no longer necessary. The court held, [p684] however, that its prior decrees would remain in effect and noted that sanctions, as well as an award of costs and attorney's fees, would be imposed if violations occurred. Holt v. Hutto, 363 F. Supp. 194, 217 (ED Ark. 1973) (Holt III).

The Court of Appeals reversed the District Court's decision to withdraw its supervisory jurisdiction, Finney v. Arkansas Board of Correction, 505 F.2d 194 (CA8 1974), and the District Court held a fourth set of hearings. 410 F. Supp. 251 (ED Ark. 1976). It found that, in some respects, conditions had seriously deteriorated since 1973, when the court had withdrawn its supervisory jurisdiction. Cummins Farm, which the court had condemned as overcrowded in 1970 because it housed 1,000 inmates, now had a population of about 1,500. Id., at 254–255. The situation in the punitive isolation cells was particularly disturbing. The court concluded that either it had misjudged conditions in these cells in 1973 or conditions had become much worse since then. Id., at 275. There were twice as many prisoners as beds in some cells. And because inmates in punitive isolation are often violently antisocial, overcrowding led to persecution of the weaker prisoners. The "grue" diet was still in use, and practically all inmates were losing weight on it. The cells had been vandalized to a "very substantial" extent. Id., at 276. Because of their inadequate numbers, guards assigned to the punitive isolation cells frequently resorted to physical violence, using nightsticks and Mace in their efforts to maintain order. Prisoners were sometimes left in isolation for months, their release depending on "their attitudes as appraised by prison personnel." Id., at 275.

The court concluded that the constitutional violations identified earlier had not been cured. It entered an order that placed limits on the number of men that could be confined in one cell, required that each have a bunk, discontinued the "grue" diet, and set 30 days as the maximum isolation sentence. The District Court gave detailed consideration to [p685] the matter of fees and expenses, made an express finding that petitioners had acted in bad faith, and awarded counsel "a fee of $20,000.00 to be paid out of Department of Correction funds." Id., at 285. The Court of Appeals affirmed and assessed an additional $2,500 to cover fees and expenses on appeal. 548 F.2d, at 743.

I
The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, "proscribe[s] more than physically barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102. It prohibits penalties that are grossly disproportionate to the offense, Weems v. United States, 217 U.S. 349, 367, as well as those that transgress today's broad and idealistic concepts of dignity, civilized standards, humanity, and decency. Estelle v. Gamble, supra, at 102, quoting Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards. Petitioners do not challenge this proposition; nor do they disagree with the District Court's original conclusion that conditions in Arkansas' prisons, including its punitive isolation cells, constituted cruel and unusual punishment. Rather, petitioners single out that portion of the District Court's most recent order that forbids the Department to sentence inmates to more than 30 days in punitive isolation. Petitioners assume that the District Court held that indeterminate sentences to punitive isolation always constitute cruel and unusual punishment. This assumption misreads the District Court's holding.

Read in its entirety, the District Court's opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum. In the court's words, punitive isolation "is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions [p686] thereof." 410 F. Supp., at 275. It is perfectly obvious that every decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual. If new conditions of confinement are not materially different from those affecting other prisoners, a transfer for the duration of a prisoner's sentence might be completely unobjectionable and well within the authority of the prison administrator. Cf. Meachum v. Fano, 427 U.S. 215. It is equally plain, however, that the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of [p687] "grue" might be tolerable for a few days and intolerably cruel for weeks or months.

The question before the trial court was whether past constitutional violations had been remedied. The court was entitled to consider the severity of those violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates' diet, the continued overcrowding, the rampant violence, the vandalized cells, and the "lack of professionalism and good judgment on the part of maximum security personnel." 410 F. Supp., at 277 and 278. The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment.

In fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each element contributing to the violation. The District Court had given the Department repeated opportunities to remedy the cruel and unusual conditions in the isolation cells. If petitioners had fully complied with the court's earlier orders, the present time limit might well have been unnecessary. But taking the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.

[p688] The order is supported by the interdependence of the conditions producing the violation. The vandalized cells and the atmosphere of violence were attributable, in part, to overcrowding and to deep-seated enmities growing out of months of constant daily friction. The 30-day limit will help to correct these conditions. Moreover, the limit presents little danger of interference with prison administration, for the Commissioner of Correction himself stated that prisoners should not ordinarily be held in punitive isolation for more than 14 days. Id., at 278. Finally, the exercise of discretion in this case is entitled to special deference because of the trial judge's years of experience with the problem at hand and his recognition of the limits on a federal court's authority in a case of this kind. Like the Court of Appeals, we find no error in the inclusion of a 30-day limitation on sentences to punitive isolation as a part of the District Court's comprehensive remedy. [p689]

II
The Attorney General of Arkansas, whose office has represented petitioners throughout this litigation, contends that any award of fees is prohibited by the Eleventh Amendment. He also argues that the Court of Appeals incorrectly held that fees were authorized by the Civil Rights Attorney's Fees Awards Act of 1976. We hold that the District Court's award is adequately supported by its finding of bad faith and that the Act supports the additional award by the Court of Appeals.

A. The District Court Award
Although the Attorney General argues that the finding of bad faith does not overcome the State's Eleventh Amendment protection, he does not question the accuracy of the finding made by the District Court and approved by the Court of Appeals. Nor does he question the settled rule that a losing litigant's bad faith may justify an allowance of fees to the prevailing party. He merely argues that the order requiring [p690] that the fees be paid from public funds violates the Eleventh Amendment.

In the landmark decision in Ex parte Young, 209 U.S. 123, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. And in Edelman v. Jordan, 415 U.S. 651, when the Court held that the Amendment grants the States an immunity from retroactive monetary relief, it reaffirmed the principle that state officers are not immune from prospective injunctive relief. Aware that the difference between retroactive and prospective relief "will not in many instances be that between day and night," id., at 667, the Court emphasized in Edelman that the distinction did not immunize the States from their obligation to obey costly federal-court orders. The cost of compliance is "ancillary" to the prospective order enforcing federal law. Id., at 668. The line between retroactive and prospective relief cannot be so rigid that it defeats the effective enforcement of prospective relief.

The present case requires application of that principle. In exercising their prospective powers under Ex parte Young and Edelman v. Jordan, federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court's most effective enforcement weapons involve financial penalties. A criminal contempt prosecution for "resistance to [the court's] lawful order" may result in a jail term or a fine. 18 U.S.C. § 401 (1976 ed.). Civil contempt proceedings may yield a conditional jail term or fine. United States v. [p691] Mine Workers, 330 U.S. 258, 305. Civil contempt may also be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance. Id., at 304; Gompers v. Bucks Stove & Range Co., 221 U.S. 418. If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail. The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief.

In this case, the award of attorney's fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. It vindicated the District Court's authority over a recalcitrant litigant. Compensation was not the sole motive for the award; in setting the amount of the fee, the court said that it would "make no effort to adequately compensate counsel for the work that they have done or for the time that they have spent on the case." 410 F. Supp., at 285. The court did allow a "substantial" fee, however, because "the allowance thereof may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary." Ibid. We see no reason to distinguish [p692] this award from any other penalty imposed to enforce a prospective injunction. Hence the substantive protections of the Eleventh Amendment do not prevent an award of attorney's fees against the Department's officers in their official capacities.

Instead of assessing the award against the defendants in their official capacities, the District Court directed that the fees are "to be paid out of Department of Correction funds." Ibid. Although the Attorney General objects to the form of the order, no useful purpose would be served by requiring that it be recast in different language. We have previously approved directives that were comparable in their actual impact on the State without pausing to attach significance to the language used by the District Court. Even if it might have [p693] been better form to omit the reference to the Department of Correction, the use of that language is surely not reversible error.

B. The Court of Appeals Award
Petitioners, as the losing litigants in the Court of Appeals, were ordered to pay an additional $2,500 to counsel for the prevailing parties "for their services on this appeal." 548 F.2d, at 743. The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds. It is also clear that this order is not supported by any finding of bad faith. It is founded instead on the provisions of the Civil Rights Attorney's Fees Awards Act of 1976. Pub. L. No. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.). The Act declares that, in suits under 42 U.S.C. § 1983 and certain other statutes, federal courts may award prevailing parties reasonable attorney's fees "as part of the costs."

As this Court made clear in Fitzpatrick v. Bitzer, 427 U.S. 445, Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards [p694] payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e. g., 42 U.S.C. § 1983.

The legislative history is equally plain: "[I]t is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S. Rep. No. 94-1011, p. 5 (1976) (footnotes omitted). The House Report is in accord: "The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities." H. R. Rep. No. 94-1558, p. 7 (1976). The Report adds in a footnote that: "Of course, the 11th Amendment is not a bar to the awarding of counsel fees against state governments. Fitzpatrick v. Bitzer." Id., at 7 n. 14. Congress' intent was expressed in deeds as well as words. It rejected at least two attempts to amend the Act and immunize state and local governments from awards.

The Attorney General does not quarrel with the rule established in Fitzpatrick v. Bitzer, supra. Rather, he argues that these plain indications of legislative intent are not enough. In his view, Congress must enact express statutory language making the States liable if it wishes to abrogate their immunity. The Attorney General points out that this Court has [p695] sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279; see also Edelman v. Jordan, 415 U.S. 651. But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief.

The Act imposes attorney's fees "as part of the costs." Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. Iowa, 7 How. 660, 681; North Dakota v. Minnesota, 263 U.S. 583 (collecting cases). The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants.

[p696] In Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, the State challenged this Court's award of costs, but we squarely rejected the State's claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability. The power to make the award was supported by "the inherent authority of the Court in the orderly administration of justice as between all parties litigant." Id., at 74. A federal court's interest in orderly, expeditious proceedings "justifies [it] in treating the state just as any other litigant and in imposing costs upon it" when an award is called for. Id., at 77.

Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States' Eleventh Amendment immunity. For it would be absurd to require an express [p697] reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fee, is added to the category of taxable costs.

There is ample precedent for Congress' decision to authorize an award of attorney's fees as an item of costs. In England, costs "as between solicitor and client," Sprague v. ''Ticonic Nat. Bank,'' 307 U.S. 161, 167, are routinely taxed today, and have been awarded since 1278. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 n. 18. In America, although fees are not routinely awarded, there are a large number of statutory and common-law situations in which allowable costs include counsel fees. Indeed, the federal statutory definition of costs, which was enacted before the Civil War and which remains in effect today, includes certain fixed attorney's fees as recoverable costs. In Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the [p698] State of Minnesota along with other taxable costs, even though the governing statute said nothing about state liability. It is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States' immunity. The Attorney General argues that the statute itself must expressly abrogate the States' immunity from retroactive liability, relying on Employees v. Missouri Public Health & Welfare Dept., supra. Even if we were not dealing with an item such as costs, this reliance would be misplaced. In Employees, the Court refused to permit individual backpay suits against state institutions because the Court "found not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U.S., at 285. The Court was careful to add, moreover, that its reading of the law did not make the statute's inclusion of state institutions meaningless. Because the Secretary of Labor was empowered to bring suit against violators, the amendment covering state institutions gave him authority to enforce the statute against them. Id., at 285–286. The present Act, in contrast, has a history focusing directly on the question of state liability: Congress considered and firmly rejected the suggestion that States should be immune from fee awards. Moreover, the Act is not part of an intricate regulatory scheme offering alternative methods of obtaining relief. If the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them. Finally, the claims asserted in Employees and in Edelman v. Jordan, 415 U.S. 651, were based on a statute rooted in Congress' Art. I power. See Employees, supra, at 281 (claim based on Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); Edelman v. Jordan, supra, at 674 (underlying claim based on Social Security Act Provisions dealing with aid to aged, blind, and disabled, 42 U.S.C. §§ 1381–1385). In this case, as in Fitzpatrick v. Bitzer, 427 U.S. 445, the claim is based on a statute enacted to enforce the Fourteenth Amendment. As we pointed out in Fitzpatrick: ""[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment When Congress acts pursuant to [p699] § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Id., at 456."

Cf. National League of Cities v. Usery, 426 U.S. 833, 852 n. 17. Applying the standard appropriate in a case brought to enforce the Fourteenth Amendment, we have no doubt that the Act is clear enough to authorize the award of attorney's fees payable by the State.

[p699] Finally, the Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant. Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began. See Holt I, 300 F. Supp., at 826. The State apparently paid earlier fee awards; and it was the State's lawyers who decided to bring this appeal, thereby risking another award.

[p700] Like the Attorney General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself. The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained "either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S. Rep. No. 94-1011, p. 5 (1976). Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only "under the traditional bad faith standard recognized by the Supreme Court in Alyeska." Id., at 5 n. 7. There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel-fees award.

The judgment of the Court of Appeals is accordingly affirmed.

It is so ordered.

† M. J W joins only Part I of this opinion.