Necessary Suffering? Weighing Government and Prisoner Interests in Determining What Is Cruel and Unusual

By Glidden, Brittany | American Criminal Law Review, Fall 2012 | Go to article overview

Necessary Suffering? Weighing Government and Prisoner Interests in Determining What Is Cruel and Unusual


Glidden, Brittany, American Criminal Law Review


It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones....

--Nelson Mandela (1)

INTRODUCTION

Imagine that a man is held in solitary confinement for thirty years. For three decades he eats every meal alone in his cell, "exercises" by himself in a cage outside, and is only touched when handcuffs are placed on him. As a result of the prolonged isolation he suffers mental anguish and develops severe depression. Should this treatment be deemed constitutionally acceptable? Does it matter if the prisoner was placed there because he killed a prison guard? What if he was subjected to this treatment at random?

The Eighth Amendment forbids the Government from inflicting "cruel and unusual punishments" on any individual convicted of a crime. (2) The Supreme Court has interpreted this language to provide a means for prisoners to challenge their conditions of confinement while in custody, (3) including the adequacy of their food or the temperature of their cells. (4) To challenge a prison condition under the Eighth Amendment, a prisoner must demonstrate (1) that the challenged condition he (5) faces is "sufficiently serious," and (2) that prison officials acted with deliberate indifference to the condition. (6) These requirements are known as the objective prong (i.e. whether the condition is "bad" enough to merit protection) and the subjective prong (i.e. whether the prison officials had a mindset that was inappropriate). (7)

The current two-part conditions test is largely uncontroversial. The test is universally accepted and cited by the all courts addressing Eighth Amendment conditions of confinement claims. (8) Perhaps for this reason it has received limited criticism from courts and commentators, (9) especially when compared to the scholarly attention given to other areas of Eighth Amendment jurisprudence, such as criminal sentencing. (10) Although the lack of controversy could be an indication that the test is working effectively, in this article I maintain the reverse is true. Namely, the Eight Amendment conditions of confinement test is confusing, inconsistent, and ultimately lacks a sound theoretical basis, which prevents it from serving its intended purpose. I argue that--as in nearly all other Eighth Amendment claims--assessment of the validity of a prison condition should be reviewed for "excessiveness," meaning the condition should be considered in light of its asserted purpose. Further, I urge that in cases seeking injunctive relief, where a harm or risk is ongoing, courts should presume that the prison officials have a culpable mindset that satisfies the second prong of the test.

Without a coherent test or secure theoretical footholds, judges struggle with a basic question: whether the Eighth Amendment serves to protect prisoners from any inhumane conditions or only prohibits conditions resulting from a prison official's demonstrable bad intent. Jurists, like most of society, wish to intervene when they see deplorable conditions regardless of what is causing them. However, they also respect the difficult work of prison officials and hesitate to hold them liable when the officials' were seemingly well intentioned or simply made a mistake.

The impact of this struggle is apparent in each prong of the Eighth Amendment conditions test. The "objective" prong purports to measure the "seriousness" of the challenged condition, but close scrutiny of court decisions reveals that there is no organized methodology to determine what makes a condition "sufficiently" serious. When a prisoner raises a novel challenge to a condition, jurists have no means to assess the seriousness of the condition apart from their innate sense of what is acceptable.

Without consistent criteria for determining what constitutes a sufficiently serious condition, judges often factor a prison official's motivations into this "objective" analysis in an attempt to hold accountable only those with inappropriate reasons for their actions. …

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