Hope v. Pelzer, 536 U.S. 730, 3 (2002)

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would have made Hope's case less like the kind of punishment Ort described as impermissible. But conduct showing that the provision was a sham, or that respondents could ignore it with impunity, provides equally strong support for the conclusion that they were fully aware of their wrongful conduct. The conclusion here is also buttressed by the fact that the Justice Department specifically advised the ADOC of the constitutional infirmity of its practices before the incidents in this case took place. Pp. 741-746.

240 F. 3d 975, reversed.

Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 748.

Craig T. Jones argued the cause for petitioner. With him on the brief were James Mendelsohn, J. Richard Cohen, and Rhonda Brownstein.

Austin C. Schlick argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Barbara L. Herwig, and Richard A. Olderman.

Nathan A. Forrester, Solicitor General of Alabama, argued the cause for respondents. With him on the brief were Bill Pryor, Attorney General, Alyce S. Robertson, Deputy Solicitor General, and Margaret Fleming and Ellen Leonard-Thomas, Assistant Attorneys General.

Gene C. Schaerr argued the cause for the State of Missouri et al. as amici curiae urging affirmance. With him on the brief were Jeremiah W. Nixon, Attorney General of Missouri, and James R. Layton, State Solicitor, Robert H. Kono, Acting Attorney General of Guam, and Carter G. Phillips, joined by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Earl I. Anzai of Hawaii, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Mi-

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