John Paul Stevens

“ 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. ”

“ 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. ”

“ 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. ”

“ In Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the [p698] State of Minnesota along with other taxable costs, [31] 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. ”

“ 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. [26] 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The inmates slept together in large, 100-man barracks, and some convicts, known as "creepers," would slip from their beds to crawl along the floor, stalking their sleeping enemies. In one 18-month period, there were 17 stabbings, all but 1 occurring in the barracks. ”