Prisons and Punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


“It is unquestioned that ‘[c]onfinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards.’”282 “Conditions [in prison] must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. . . . Conditions . . . , alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. . . . But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.”283 These general principles apply both to the treatment of individuals284 and to the creation or maintenance of prison conditions that are inhumane to inmates generally.285 Ordinarily there is both a subjective and an objective inquiry. Before conditions of confinement not formally meted out as punishment by the statute or sentencing judge can qualify as “punishment,” there must be a culpable, “wanton” state of mind on the part of prison officials.286 In the context of general prison conditions, this culpable state of mind is “deliberate indifference”;287 in the context of emergency actions, e. g., actions required to suppress a disturbance by inmates, only a malicious and sadistic state of mind is culpable.288 When excessive force is alleged, the objective standard varies depending upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and sadistically to cause harm. In the good-faith context, there must be proof of significant injury. When, however, prison officials “maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated,” and there is no need to prove that “significant injury” resulted.289

Beginning with Holt v. Sarver,290 federal courts found prisons or entire prison systems to violate the Cruel and Unusual Punishments Clause, and broad remedial orders directed to improving prison conditions and ameliorating prison life were imposed in more than two dozen states.291 But, although the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the federal courts to proceed with deference to the decisions of state legislatures and prison administrators.292 In both cases, the prisons involved were of fairly recent vintage and the conditions, while harsh, did not approach the conditions described in many of the lower court decisions that had been left undisturbed.293 Thus, concerns of federalism and of judicial restraint apparently actuated the Court to begin to curb the lower federal courts from ordering remedial action for systems in which the prevailing circumstances, given the resources states choose to devote to them, “cannot be said to be cruel and unusual under contemporary standards.”294

Congress initially encouraged litigation over prison conditions by enactment in 1980 of the Civil Rights of Institutionalized Persons Act,295 but then in 1996 added restrictions through enactment of the Prison Litigation Reform Act.296 The Court upheld the latter law’s provision for an automatic stay of prospective relief upon the filing of a motion to modify or terminate that relief, ruling that separation of powers principles were not violated.297

282 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437 U.S. 678, 685 (1978)).

283 452 U.S. at 347. See also Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (rejecting a challenge to a two-year withdrawal of visitation as punishment for prisoners who commit multiple substance abuse violations, characterizing the practice as “not a dramatic departure from accepted standards for conditions of confinement,” but indicating that a permanent ban “would present different considerations”).

284 E.g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather strap violates Eighth Amendment); Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate medical neglect of a prisoner violates Eighth Amendment); Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who alleged exposure to secondhand “environmental” tobacco smoke stated a cause of action under the Eighth Amendment). In Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), the Court overturned a lower court’s dismissal, on procedural grounds, of a prisoner’s claim of having been denied medical treatment, with life-threatening consequences. Justice Thomas, however, dissented on the ground “that the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence. . . . But even applying the Court’s flawed Eighth Amendment jurisprudence, I would draw the line at actual, serious injuries and reject the claim that exposure to the risk of injury can violate the Eighth Amendment.” Id. at 95 (internal quotation marks omitted).

285 E.g., Hutto v. Finney, 437 U.S. 678 (1978).

286 Wilson v. Seiter, 501 U.S. 294 (1991).

287 501 U.S. at 303. Deliberate indifference in this context means something more than disregarding an unjustifiably high risk of harm that should have been known, as might apply in the civil context. Rather, it requires a finding that the responsible person acted in reckless disregard of a risk of which he or she was aware, as would generally be required for a criminal charge of recklessness. Farmer v. Brennan, 511 U.S. 825 (1994). In upholding capital punishment by a three-drug lethal injection protocol, despite the risk that the protocol will not be properly followed and consequently result in severe pain, a Court plurality found that, although “subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment . . . , the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Baze v. Rees, 128 S. Ct. 1520, 1530–31 (emphasis added by the Court). This case is also discussed, supra, under Eighth Amendment, “Application and Scope.”

288 Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment).

289 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (beating of a shackled prisoner resulted in bruises, swelling, loosened teeth, and a cracked dental plate). Accord Wilkins v. Gaddy, 559 U.S. ___, No. 08–10914, slip op. (2010) (per curiam).

290 309 F. Supp. 362 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971) (district court ordered to retain jurisdiction until unconstitutional conditions corrected, 505 F.2d 194 (8th Cir. 1974). The Supreme Court ultimately sustained the decisions of the lower courts in Hutto v. Finney, 437 U.S. 678 (1978)).

291 Rhodes v. Chapman, 452 U.S. 337, 353–54 n.1 (1981) (Justice Brennan concurring) (collecting cases). See Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv. L. Rev. 626 (1981).

292 Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337 (1981).

293 See, e.g., Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) (describing conditions of “horrendous overcrowding,” inadequate sanitation, infested food, and “rampant violence”); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1981) (describing conditions “unfit for human habitation”). The primary issue in both Wolfish and Chapman was that of “double-celling,” the confinement of two or more prisoners in a cell designed for one. In both cases, the Court found the record did not support orders ending the practice.

294 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1991) (allowing modification, based on a significant change in law or facts, of a 1979 consent decree that had ordered construction of a new jail with single-occupancy cells; modification was to depend upon whether the upsurge in jail population was anticipated when the decree was entered, and whether the decree was premised on the mistaken belief that single-celling is constitutionally mandated).

295 Pub. L. 96–247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq.

296 Pub. L. 104–134, title VIII, 110 Stat. 1321–66—1321–77.

297 Miller v. French, 530 U.S. 327 (2000). See also Porter v. Nussle, 534 U.S. 516 (2002) (applying the Act’s requirement that prisoners exhaust administrative remedies).

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