Cruel and unusual construction: the Eighth Amendment as a limit on building prisons on toxic waste sites.

• Author: Russell, Kelsey D.
• Position: COMMENT

Over the last four decades, the United States has witnessed the emergence of a leviathan prison industrial complex. Eager to restore stagnating economies previously driven by coal-mining operations, many rural communities sought to take advantage of this prison-building boom through bids for facility construction contracts. As a result, a startling number of prisons have been built on active and former coal mines, coal ash dumps, and other environmentally hazardous locations. Long-term confinement in facilities located in, on, and near such locations poses severe and demonstrable health risks to the inmate populations through exposure to polluted air and water twenty-four hours a day, seven days a week, for the duration of their sentences.

This Comment examines the doctrinal promise of a lawsuit to enjoin the construction of prisons on toxic waste sites based on the Eighth Amendment, before inmates are exposed to dangerous and sometimes fatal living conditions. Specifically, it asks whether planning to build a prison in a location bearing environmental risks known to cause serious illness and death constitutes cruel and unusual punishment. Despite certain obstacles, this Comment contends that the Supreme Court's conditions-of-confinement jurisprudence bears the weight of such a claim. Due in large part to the tireless efforts of prisoners' rights organizations and activists, there is ample evidence demonstrating that inmates confined in facilities on or around toxic waste sites are developing exposure-related illnesses at alarming rates. Accordingly, planning to build a prison in a location with identical risks raises serious concerns under the Eighth Amendment.

The import of this situation was perhaps best articulated by the Human Rights Defense Center, a prisoners' rights organization actively engaged in putting an end to this disturbing trend: "If we can recognize the problem with forcing people to live in close proximity to toxic and hazardous environmental conditions, then why are we ignoring prisoners who are forced to live in detention facilities impacted by such conditions?" This Comment seeks not only to recognize the problem with forcing people to live in such conditions, but also to engage with a potential, albeit imperfect, solution.

INTRODUCTION I. THE PROBLEM: PRISONS IN UNSAFE LOCATIONS A. The State Correctional Institution at Fayette (SCI Fayette), (LaBelle, Pennsylvania) B. Forthcoming: United States Penitentiary Letcher (USP Letcher), (Roxana, Kentucky) II. CRUEL AND UNUSUAL PRISON CONDITIONS: THE CASE LAW A. Development of the Objective and Subjective Requirements B. Future Harm and Deliberate Indifference 1. Helling: Exposure to Unsafe Conditions 2. Farmer: Reconciling Wilson with Hutto and Rhodes C. Brown v. Plata: System-Wide Violations III. APPLYING THE LEGAL FRAMEWORK A. Objective Requirement: The Evidence 1. SCI Fayette 2. Letcher County B. Subjective Test: Deliberately Indifferent Design 1. SCI Fayette 2. Letcher County 3. Subjectivity and Prospective Relief: An Uneasy Fit IV. LIMITATIONS AND SOLUTIONS A. Federal Courts: The PLRA and Justiciability 1. Standing and Ripeness: Limits on Entry 2. The PLRA: Limits on Remedies B. State Courts: A Solution Through Subsidiarity CONCLUSION "When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded." (1)

INTRODUCTION

The story of mass incarceration in America is not a new one. (2) Over the last four decades, the number of incarcerated individuals in the United States has risen from approximately 300,000 to more than two million, (3) constituting the highest incarceration rate among "countries comparable to the United States." (4) By the time this figure peaked in the late 2000s, (5) it was well established that prison overcrowding had grown to become a problem of constitutional proportions-specifically, a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. (6)

To keep up with surging inmate populations, an unprecedented number of prisons have been constructed over the past thirty-five years and "[f]or a time in the mid-1990s, ... a new U.S. prison opened every 15 days on average." (7) In particular, formerly coal-dependent rural communities began recruiting prison facilities in the hopes that construction and subsequent operations would jumpstart waning economies. (8) While prison-based development is not by any means guaranteed to generate economic value, (9) this Comment is concerned with a disturbing pattern that has emerged as a result of such attempts at economic development: prisons are being built on environmentally unsound lands, bearing potentially lethal health effects for inmates. (10) In a letter to the Environmental Protection Agency (EPA), one prisoners' rights organization framed the issue as follows: "If we can recognize the problem with forcing people to live in close proximity to toxic and hazardous environmental conditions, then why are we ignoring prisoners who are forced to live in detention facilities impacted by such conditions?" (11)

The Eighth Amendment and the Supreme Court's conditions-of-confinement jurisprudence (12) might provide a reprieve, and a path, to enjoin the construction of prisons slated for toxic waste sites and thereby avoid the corresponding health risks altogether. Investigation into the Eighth Amendment implications of the environmental conditions at the State Correctional Institute at Fayette (SCI Fayette) in LaBelle, Pennsylvania, which was built adjacent to a coal mining site, (13) is ongoing. (14) This Comment contends that the doctrinal basis upon which advocates have challenged the conditions at SCI Fayette is equally applicable to the forthcoming construction of the United States Penitentiary Letcher County (USP Letcher), a new federal prison in Kentucky, also destined for construction atop a coal mine. (15) Litigants could argue that the decision to move forward despite known risks and hazards associated with this location violates the Eighth Amendment on a theory of deliberately indifferent design.

Part I explores the increasing trend of building prisons on environmentally toxic locations, with attention to the history and environmental circumstances of SCI Fayette and USP Letcher. Part II examines the Eighth Amendment framework as it has developed from the 1970s to present day, the span of decades that have seen the most rapid increase in prison population in United States history. (16) Building upon a report issued by the Abolitionist Law Center (ALC), (17) Part III fits the environmentally hazardous conditions at SCI Fayette into the legal framework described in Part II. Part III also applies the Eighth Amendment framework to the planned construction in Letcher County, arguing that the environmental hazards inherent to the location render the prison's design unconstitutional. (18) Part IV examines the practical limitations of an Eighth Amendment claim based on prospective harm-including challenges posed by federal justiciability doctrines and the Prison Litigation Reform Act of 1995 (PLRA) (19)--and proposes that state courts may prove a potential solution to these obstacles. The Comment concludes by considering whether constitutional litigation makes sense for advocates from a strategic standpoint, as compared to other potential methods.

While "the Constitution does not mandate comfortable prisons," (20) the Eighth Amendment is animated by the respect for the "human dignity inherent in all persons." (21) This Comment contends that when the government knowingly houses prisoners in demonstrably dangerous facilities, it fails to fulfill its obligations to provide for prisoners' basic needs such that "the courts have a responsibility to remedy the resulting Eighth Amendment violation." (22)

1. THE PROBLEM: PRISONS IN UNSAFE LOCATIONS

   In recent years, an alarming number of prisons have been built throughout the country on or near environmentally hazardous sites. (23) Many of these prisons are located in close proximity to "superfund" sites, which are "uncontrolled or abandoned hazardous-waste sites" governed by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). (24) Other prisons have been built on and near "brownfield" sites, defined as property for which expansion, redevelopment, or reuse "may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." (25) Brownfield sites are also governed by CERCLA. (26) To regulate Superfund sites, CERCLA gives the EPA the "power to seek out those parties responsible for any release and assure their cooperation in the cleanup." (27) Imploring the Agency to consider its unique position to address the distinct "circumstances of prisoner populations," the Human Rights Defense Center (HRDC) identified a number of prisons on or near superfund and other hazardous sites for the EPA in a July 2015 letter. (28) The discussion of SCI Fayette and USP Letcher contained therein provides helpful context for the Eighth Amendment analysis that follows. (29)

   1. The State Correctional Institution at Fayette (SCI Fayette), (LaBelle, Pennsylvania)

      SCI Fayette is located in LaBelle, Pennsylvania, a town once home to "one of the largest coal preparation plants in the world." (30) The Commonwealth of Pennsylvania purchased the plot of land upon which SCI Fayette now sits from Matt Canestrale Contracting (MCC), (31) which continues to operate a coal ash dump on the land directly abutting SCI Fayette. (32) Proximity to coal has verifiable negative health consequences, as "fugitive dust"-the "[w]indblown particulates from dry disposal" (33)--puts those nearby at risk of arsenic exposure. (34) SCI Fayette has...