23-c-3 Exposure to Second-hand Smoke

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

23-C-3. Exposure to Second-Hand Smoke

Prisoners have the right to be free from exposure to excessive second-hand smoke.107 Courts previously rejected prisoners' claims of cruel and unusual punishment resulting from exposure to environmental tobacco smoke ("ETS") because plaintiffs had not yet suffered serious injuries.108 However, in Helling v. McKinney, the Supreme Court rejected the argument that "only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment" by comparing forced exposure to ETS to live electrical wires or communicable diseases.109 The Court concluded that prison officials may violate the Eighth Amendment's prohibition of cruel and unusual punishment if they deliberately expose prisoners to high levels of ETS.110

To satisfy the objective part of the Eighth Amendment under Helling (look back to page 628 and re-read Section B(1) if you need to review what "objective part" means), you will have to show you are exposed to ETS levels that "pose an unreasonable risk of serious damage to [your] future health" in a way that violates contemporary standards of decency.111 To obtain an injunction against further ETS exposure, you do not need an actual physical injury to show an Eighth Amendment violation.112

Note that claiming prison officials are deliberately indifferent to the risk of future harm is different from claiming deliberate indifference to current harm.113 You can claim that ETS exposure affects your current health, but you have to prove you have a...

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