TBA Law Blog

Posted by: David Hudson on Mar 1, 2015

Journal Issue Date: Mar 2015

Journal Name: March 2015 - Vol. 51, No. 3

“That no person arrested and confined in jail shall be treated with unnecessary rigor.” So reads Article I, Section 13 of the Tennessee Constitution, a provision that has appeared in all three Tennessee Constitutions, including the initial one in 1796.[1] Despite the strong language, the provision has not received extensive treatment in Tennessee. Because inmates frequently assert constitutional claims, it is somewhat surprising that there is so little explanation as to the meaning of Article I, Section 13. On the other hand, for many years, courts applied a “hands-off” approach to inmates, reasoning that prison administrators were entitled to total and complete deference. But, that view changed with the rise of the prisoners’ movement. Whatever the reason, there certainly is a dearth of case law from Tennessee interpreting this provision with only one published court decision and a smattering of unpublished decisions.

Tennessee Cases

The Tennessee Supreme Court addressed the provision in Sanders v. State.[2] Two defendants charged with burglary asserted they were treated with unnecessary rigor by officials at the Robertson County jail. The defendants contended jail officials kept their clothes and shoes for several days and denied medical attention to one of them for several hours.[3] The state high court rejected the constitutional claim, citing testimony by one of the defendants that he was not “mistreated, threatened or beaten” in jail. The other defendant received medical attention later in the evening.[4] The state high court offered no further elucidation about the constitutional provision.

Other Tennessee court decisions — state and federal — also have failed to provide guidance as to the meaning of the constitutional provision. A transsexual inmate asserted an Article I, Section 13 claim after another inmate beat him in a Johnson County penal institution.[5] A concurring judge mentioned the provision in a case arising out of the beating of a jail inmate by several other inmates at the Sevier County jail.[6] A federal district court decision mentions that an inmate alleged he suffered from poor conditions of confinement at Northwest Correctional Complex and suffered “unnecessary rigor.”[7] The closest to any explanation came from a Tennessee Court of Appeals decision that referred to Article I, Section 13 as “the state counterpart to the federal prohibition against use of excessive force.”[8]

Cases from Other Jurisdictions

Because Tennessee courts have not provided an in-depth explanation of the clause, it is helpful to examine the few states that have similar provisions in their state constitutions. Only four other states — Indiana,[9] Oregon,[10] Utah[11] and Wyoming — have “unnecessary rigor” clauses in their state constitutions. The Wyoming state courts have not provided much in the way of guidance on the interpretation of its “unnecessary rigor” clause, but the courts of Indiana, Oregon and Utah have tackled the subject.

The Indiana Supreme Court or Indiana Court of Appeals has found violations of the “unnecessary rigor” provision when law enforcement officials beat an inmate in jail with a blackjack and a rubber hose, knocked out his tooth and left bruises on his body,[12] when police officers battered an arrestee, leaving “his face full of welts and one eye red and almost closed”[13] and when prison officials shot an inmate in the prison exercise yard while other inmates were protesting.[14] The Indiana Supreme Court determined that a minor inmate did not suffer violations of the unnecessary rigor provision when the state placed her in an adult women’s prison instead of an alternative facility.[15] The state high court also determined that an inmate did not suffer “unnecessary rigor” simply because government officials violated a rule of state criminal procedure by holding the defendant in jail for more than six months without a trial.[16] The Indiana Court of Appeals also determined that the rigor clause was not violated when prison officials allegedly failed to remove him from his cell that was overrun with dirty toilet water and fecal matter that had come from other inmates’ clogging their toilets as part of a protest.[17] The appeals court reached this result even though the inmate also alleged that prison officials allegedly shot him with 10-30 mace pellets.[18] The court said this did not rise to the level of the earlier Indiana cases involving the beating with a blackjack and a rubber hose, or being shot by prison guards.[19]

The Oregon Supreme Court addressed the meaning in a case where male inmates sued to prevent female prison guards from frisking them or observing them showering or using the toilet.[20] The Oregon high court noted that the standard was not “confined only to such historically ‘rigorous’ practices as shackles, the ball and chain, or to physically brutal treatment or conditions, though these are the most obvious examples.”[21] The court concluded that the lower courts had “correctly recognized that prisoners can raise a constitutionally founded objection [based on the “unnecessary rigor” provision in the state constitution] to a search by corrections officers of the opposite sex that involves touching of sexually intimate body areas even through clothing.”[22] In a later decision, the Oregon Court of Appeals determined an inmate had stated a viable constitutional claim in his habeas petition, when he alleged that he had been victimized by “ongoing and periodic assaults.”[23]

However, there certainly are limits to the Oregon courts’ application of the “rigor” provision. For example, the Oregon high court rejected an “unnecessary rigor” claim based on a prison facility banning fantasy and role-playing games, limiting sexually explicit materials and banning inmate-to-inmate correspondence.[24]

The Utah Supreme Court examined its “rigor clause” in Bott v. DeLand involving the poor treatment of inmate Roger Bott, who repeatedly complained to prison officials about blurred vision in his right eye.[25] His complaints were ignored and his condition worsened, resulting in the loss of vision in his right eye and most of the vision in his left eye.[26] Eventually, a doctor diagnosed Bott with malignant hypertension and renal failure. He filed a civil rights claim based on a violation of Utah’s “unnecessary rigor” clause. The court upheld a jury verdict in Bott’s favor, finding that the “unnecessary rigor” clause was a “self-executing provision” that allowed for the award of monetary damages.[27] The court determined that prisoners or arrestees could not recover under the “unnecessary rigor” clause unless they showed that prison officials acted with “unnecessary abuse.”[28] The court characterized abuse as “needlessly harsh, degrading, or dehumanizing treatment.”[29] The court emphasized that the clause applies to “treatment that is clearly excessive or deficient, and unjustified, not merely the frustrations, inconveniences, and irritations that are common to prison life.”[30]

The state high court later examined the meaning of the clause in Dexter v. Bobo — a case in which prison officials refused to buckle the seatbelts of the shackled inmates they drove in a van.[31] When the van flipped over three times, inmate Kelvin Dexter suffered paralyzing injuries and later died from those injuries.[32] The court examined historical sources, noting that the primary purpose of the clause was to prohibit inhumane conditions of confinement. The clause also clearly applied to physical abuse of inmates or arrestees.[33] The court also distinguished the reach of the “rigor” clause from the “cruel and unusual punishment” clause, stating that the rigor clause applied to the circumstances of confinement, while the cruel and unusual punishment clause focused more on the sentence.[34] The court then explained: “A prisoner suffers from unnecessary rigor when subject to unreasonably harsh, strict, or severe treatment. This may include being unnecessarily exposed to an increased risk of serious harm.”[35] The court also explained that in order to obtain monetary damages for a violation of the rigor clause — as with other constitutional torts — the plaintiff must show he or she suffered a “flagrant” violation of his or her rights, existing remedies are inadequate, and that equitable relief, such as an injunction, are inadequate to protect the plaintiff.[36] While the court in Dexter v. Bobo did not answer all questions on the meaning of the clause, it certainly is a significant case.[37]

The Utah Supreme Court emphasized that the provision is limited to conditions of confinement, rejecting an inmate’s challenge that a waiver of the right to present mitigation evidence in the penalty phase of a death-penalty case triggered the protections of the “unnecessary rigor” clause.[38]


The “unnecessary rigor” clause of the Tennessee Constitution would seem to apply to egregious acts of violence against arrestees and inmates. Its scope beyond those easy cases is uncertain, given the lack of case law in the state. Many inmates pursue excessive force claims under federal law or under Article I, § 16, which prohibits cruel and unusual punishment. More claims are filed in federal court based on violations of the U.S. Constitution, because Tennessee does has not recognized an implied right of action for damages based on violations of the state constitution.[39] Instead inmates filed 42 U.S.C. § 1983 claims for violations of the Eighth Amendment or another provision of the U.S. Constitution. Still, that does not necessarily preclude the possibility that arrestees or inmates could not assert “the unnecessary rigor” clause of the Tennessee Constitution in claims for injunctive relief.[40] Only time will tell if Article I, § 13 remains a virtual dead-letter in the state constitution, or will have real force in the future.


  1. See Lewis Laska. The Tennessee State Constitution (Oxford University Press, 2011), at p. 53.
  2. 392 S.W.2d 916 (Tenn. 1965).
  3. Id. at 918-19.
  4. Id.
  5. Whittington-Barrett v. Johnson, No. E2000-00700-COA-R3-CV, 2000 WL 1661527 (Tenn.Ct.App. Nov. 6, 2000).
  6. Raedle v. Townsend, 1987 WL 7721 (Tenn.Ct.App. March 12, 1987)(J. Franks, concurring).
  7. Chapman v. Thacker, No 3:11-0006, 2011 WL 2934888, *2 (M.D. Tenn. June 13, 2011).
  8. Partin v. Scott, No. E2007-02604-COA-R3-CV, 2008 WL 4922412, *7 (Tenn.Ct.App. Nov. 13, 2008).
  9. Ind. Const. Art. I, § 15 (“No person arrested, or confined in jail, shall be treated with unnecessary rigor.”).
  10. Or. Const. Art. I, § 13 (“No person arrested, or confined in jail, shall be treated with unnecessary rigor.”).
  11. U.C.A. 1953, Const. Art. I, § 9 (“Persons arrested or confined shall not be treated with unnecessary rigor.”).
  12. Kokenes v. State, 13 N.E.2d 524, 527 (Ind. 1938).
  13. Bonahoon v. State, 178 N.E. 570, 570 (Ind. 1931).
  14. Roberts v. State, 307 N.E.2d 501 (Ind.App. 1974).
  15. Ratfliff v. Cohn, 693 N.E.2d 530 (Ind. 1998).
  16. McQueen v. State, 711 N.E.2d 503 (Ind. 1999).
  17. Smith v. Indiana Dep’t of Corrections, 984 N.E.2d 975, 980-81 (Ind.App. 2007).
  18. Id. at 981.
  19. Id. at 984.
  20. Sterling v. Cupp, 625 P.2d 123 (Or. 1981).
  21. Id. at 129.
  22. Id. at 136.
  23. Schafer v. Maass, 858 P.2d 474 (Or.App. 1993).
  24. Smith v. Department of Corrections, 182 P.3d 250 (Or. 2008).
  25. 922 P.2d 732 (Utah 1996).
  26. Id. at 734-35.
  27. Id. at 737-38.
  28. Id. at 740.
  29. Id, citing Sterling v. Cupp, 625 P.2d at 131.
  30. Id. at 741.
  31. Dexter v. Bobo, 184 P.3d 592 (Or. 2008).
  32. Id. at 594.
  33. Id. at 596.
  34. Id.
  35. Id. at 597.
  36. Id. at 597-98.
  37. See Tina Eckert, “State Constitutional Law — Prisoner’s Rights — Failure to Seatbelt Prisoner During Transport, Which Resulted in Serious Injury to Prisoner, Is Within the Scope of the Unnecessary Rigor Clause of Utah Constitution,” 40 Rutgers L.J. 885 (2009).
  38. State v. Maestas, 299 P.3d 892, 964-65 (Utah 2012).
  39. See Lee v. Ladd, 834 S.W.2d 832, 833 (Tenn.Ct.App. 1992); Wooley v. Madison County, 209 F.Supp. 2d 836, 844 (M.D. Tenn. 2002).
  40. See Anderson v. Clarksville Montgomery County School System, 2006 WL 1639348, *2 (M.D. Tenn. 6/13/2006)(“Even though there is no authority for the recovery of damages for a violation of the Tennessee Constitution, the Court has the inherent power to enjoin unconstitutional conduct.”)

David L. Hudson Jr. DAVID L. HUDSON JR. is director of academic affairs and legal writing at the Nashville School of Law and the First Amendment ombudsman for the Newseum Institute's First Amendment Center in Nashville.  He is the author or co-author of more than 40 books. He teaches several classes at the Nashville School of Law, including Tennessee Constitutional Law.  He also teaches at Vanderbilt Law School and Belmont University School of Law.