dissenting.
The petition presents facts which, if true, make this a shocking case in the annals of our jurisprudence.
Respondent, a Negro, was convicted of burglary in Alabama and sentenced to hard labor at a state penitentiary. After six years he escaped and was apprehended in Ohio. Thereafter Alabama undertook to extradite him so that he could be returned to Alabama and serve the balance of his sentence. He thereupon filed this petition for habeas corpus to be released from the custody of petitioner, the Ohio sheriff who presently detains him.
He offered to prove that the Alabama jailers have a nine-pound strap with five metal prongs that they use to beat prisoners, that they used this strap against him, that the beatings frequently caused him to lose consciousness and resulted in deep wounds and permanent scars.
He offered to prove that he was stripped to his waist and forced to work in the broiling sun all day long without a rest period.
*92He offered to prove that on entrance to the prison he was forced to serve as a “gal-boy” or female for the homosexuals among the prisoners.
Lurid details are offered in support of these main charges. If any of them is true, respondent has been subjected to cruel and unusual punishment in the past and can be expected on his return to have the same awful treatment visited upon him.
The Court allows him to be returned to Alabama on the theory that he can apply to the Alabama courts for relief from the torture inflicted on him. That answer would suffice in the ordinary case. For a prisoner caught in the mesh of Alabama law normally would need to rely on Alabama law to extricate him. But if the allegations of the petition are true, this Negro must suffer torture and mutilation or risk death itself to get relief in Alabama. It is contended that there is no showing that the doors of the Alabama courts are closed to petitioner or that he would have no opportunity to get relief. It is said that we should not assume that unlawful action of prison officials would prevent petitioner from obtaining relief in the Alabama courts. But we deal here not with an academic problem but with allegations which, if proved, show that petitioner has in the past been beaten by guards to the point of death and will, if returned, be subjected to the same treatment. Perhaps those allegations will prove groundless. But if they are supported in evidence, they make the return of this prisoner a return to cruel torture.
I am confident that enlightened Alabama judges would make short shrift of sadistic prison guards. But I rebel at the thought that any human being, Negro or white, should be forced to run a gamut of blood and terror in order to get his constitutional rights. That is too great a price to pay for the legal principle that before a state prisoner can get federal relief he must exhaust his state *93remedies. The enlightened view is indeed the other way. See Johnson v. Dye, 175 F. 2d 250 (which unhappily the Court reversed, 338 U. S. 864); Johnson v. Matthews, 86 U. S. App. D. C. 376, 383-386, 182 F. 2d 677, 684-687; Commonwealth v. Superintendent of County Prison, 152 Pa. Super. 167, 31 A. 2d 576.
Certainly there can be no solid objection to the use of habeas corpus to test the legality of the treatment of a prisoner who has been lawfully convicted. In Cochran v. Kansas, 316 U. S. 255, 258, habeas corpus was used to challenge the legality of the practice of prison officials in denying a convict the opportunity of presenting appeal papers to a higher court. And see In re Bonner, 151 U. S. 242. Such an act of discrimination against a prisoner was a violation of the Equal Protection Clause of the Fourteenth Amendment. The infliction of “cruel and unusual punishments” against the command of the Eighth Amendment is a violation of the Due Process Clause of the Fourteenth Amendment, whether that clause be construed as incorporating the entire Bill of Rights or only some of its guaranties. See Adamson v. California, 332 U. S. 46. Even under the latter and more restricted view, the punishments inflicted here are so shocking as to violate the standards of decency implicit in our system of jurisprudence. Cf. Francis v. Resweber, 329 U. S. 459.
The Court of Appeals should be sustained in its action in giving respondent an opportunity to prove his charges. If they are established, respondent should be discharged from custody and saved the ordeal of enduring torture and risking death in order to protect his constitutional rights.*
The requirements of 28 U. S. C. § 2241 (c) regulating the use of habeas corpus are met since the charges, if proved, would result in a return of respondent to Alabama to a “custody in violation of the Constitution” of the United States.