Evaluating punishment in purgatory: the need to separate pretrial detainees' conditions-of-confinement claims from inadequate Eighth Amendment analysis.

• Author: Gorlin, David C.

The Due Process Clause prohibits all "punishment" of pretrial detainees--individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were aware of the harm and deliberately indifferent to their needs. The Eighth Amendment approach puts pretrial detainees on equivalent footing with convicted prisoners: detainees are only entitled to the same objective treatment as convicted prisoners, and they must overcome the same burdensome hurdle to state a claim--establishing the subjective deliberate indifference of jail officials.

This Note argues that Eighth Amendment standards do not adequately address pretrial detainees' substantive due process rights. First, the substantive component of the Due Process Clause provides pretrial detainees with greater protection than the Eighth Amendment provides to convicted prisoners. The Eighth Amendment's only relevance to pretrial detainees' conditions-of-confinement claims is to set a floor; conditions falling below the Eighth Amendment floor automatically trigger a substantive due process violation. The ceiling of substantive due process protection is higher than the Eighth Amendment ceiling, however. Pretrial detainees retain the fundamental liberty interest to be free from deplorable conditions of confinement, whereas convictions substantially impair or extinguish that liberty interest. Second, requiring pretrial detainees to establish the subjective deliberate indifference of jail officials contradicts the traditional approach of substantive due process jurisprudence, which relies upon objective criteria in assessing conditions-of-confinement claims.

TABLE OF CONTENTS INTRODUCTION I. THE UNLIKELY MERGER OF THE EIGHTH AMENDMENT AND SUBSTANTIVE DUE PROCESS A. Bell v. Wolfish: The Substantive Due Process Test for Pretrial Detainees' Conditions-of-Confinement Claims B. Farmer v. Brennan and Its Precedents: The Eighth Amendment Test for Convicted Prisoners' Conditions-of-Confinement Claims C. The Circuit Split: Application of the Eighth Amendment to Pretrial Detainees' Claims D. Practical Consequences of Applying the Eighth Amendment to Detainees' Claims 1. Different Results Under Wolfish and Farmer 2. Heavier Substantive and Procedural Burdens under Farmer II. SUBSTANTIVE DUE PROCESS PROTECTIONS EXCEED EIGHTH AMENDMENT PROTECTIONS A. The Eighth Amendment Only Establishes a Floor for Detainees' Rights B. Substantive Due Process Provides a Higher Ceiling for Detainees' Rights than the Eighth Amendment C. Limitations III. THE OBJECTIVE CRITERIA OF SUBSTANTIVE DUE PROCESS JURISPRUDENCE A. The Objective Criteria of Bell v. Wolfish B. The Standard for the Civilly Committed and Detained Relies on Objective Criteria C. The Objective Deliberate-Indifference Alternative CONCLUSION INTRODUCTION

Pretrial detention has been called the "dubious interval between the commitment and trial." (1) One court has colorfully invoked the biblical notion of "purgatory" to describe the condition of those persons held by the government prior to a formal adjudication of guilt. (2) Some individuals are detained following an arrest because they simply cannot afford to post bail. Bail may also be denied and pretrial detention sustained for two primary purposes: first, to ensure an individual's appearance at trial, and second, to ensure public safety, which would presumably be threatened if the person were released. (3) Although the Supreme Court has upheld the constitutionality of pretrial detention, (4) the legal system has struggled to condone a regime that frequently subjects pretrial detainees to the same conditions of confinement as convicted prisoners. In fact, pretrial detainees commonly face harsher conditions of confinement than convicted individuals. (5) Whereas most convicted prisoners serve their sentences at state or federally operated prisons, detainees are typically housed in locally operated jails where resources are scarcer, the staff is "less professionalized," classification of inmates is haphazard, and rapid turnover makes for generally chaotic conditions. (6) Detainees are also more vulnerable than convicted prisoners and, facing worse conditions of confinement, far more likely to be harmed by incarceration. (7)

Pretrial detainees and convicted prisoners are both constitutionally protected from deplorable or dangerous conditions of confinement, (8) but the protections for each group are found in distinct constitutional sources. Convicted prisoners are entitled to the protections of the Eighth Amendment, which prohibits the infliction of "cruel and unusual punishments." The Eighth Amendment does not protect pretrial detainees, however, because they have not been adjudged guilty of any crime. (9) Instead, pretrial detainees are protected by the substantive component of the Due Process Clause, which prohibits the deprivation of liberty without due process of law; (10) as such, pretrial detainees are protected from all "punishment," cruel, unusual, or otherwise. (11)

Claims alleging unconstitutional conditions of confinement take a variety of forms. (12) A typical claim alleges deplorable environmental conditions, such as extreme cold. (13) Detainees also commonly allege unsanitary conditions (14) and overcrowded cells. (15) Courts frequently scrutinize a variety of detention facility rules, regulations, and practices as affecting a prisoner's conditions of confinement. (16) In some circumstances, conditions-of-confinement claims overlap with claims alleging a failure to provide adequate medical care. (17) Psychologically harmful or humiliating conditions of confinement may also suffice for detainees' constitutional claims. (18)

There is a fierce circuit split over the extent of pretrial detainees' substantive due process rights. A slight majority of circuits holds that the Eighth Amendment and substantive due process offer identical protections, and these circuits commonly apply Eighth Amendment jurisprudence to claims brought by pretrial detainees. The minority position holds that Eighth Amendment jurisprudence does not sufficiently address detainees' conditions-of-confinement claims, and that substantive due process provides distinct and heightened protection to pretrial detainees. The Supreme Court has not unequivocally resolved the issue, (19) although each side of the debate naturally stakes its position as the most faithful reading of precedent.

This Note argues that applying Eighth Amendment analysis to pretrial detainees' conditions-of-confinement claims inadequately addresses detainees' distinct substantive due process rights. Part I describes how the Supreme Court's opinion in Bell v. Wolfish, which held that the Due Process Clause forbids punishment of pretrial detainees, has been largely supplanted by Eighth Amendment jurisprudence. The diminished role of Wolfish means that more than half of the federal circuits currently equate pretrial detainees' and convicted prisoners' rights to be free from deplorable conditions of confinement. Part II asserts that applying Eighth Amendment analysis to conditions-of-confinement claims brought by pretrial detainees ignores that substantive due process protections from harsh conditions of confinement are more extensive than analogous Eighth Amendment protections. Part III argues that analyzing pretrial detainees' due process claims under Eighth Amendment standards wrongly imposes on detainees a requirement of establishing the subjective intent of jail officials, an approach that is incompatible with substantive due process's traditional reliance on objective criteria.

1. THE UNLIKELY MERGER OF THE EIGHTH AMENDMENT AND SUBSTANTIVE DUE PROCESS

   The Supreme Court has long held that the Eighth Amendment offers no protection prior to a formal adjudication of guilt, (20) and thus even the harshest treatment of pretrial detainees does not violate the Eighth Amendment because its protections simply do not apply to them. The Due Process Clause instead operates to protect those that have not been found guilty of a crime. (21) Despite the Court's explicit directive that the Eighth Amendment does not protect pretrial detainees, (22) more than half of the federal circuits now analyze detainees' claims under the Eighth Amendment standard, thereby equating detainees' substantive due process rights to be free from deplorable conditions of confinement with the analogous Eighth Amendment rights of convicted prisoners. This Part explains how the due process standard has been supplanted in a majority of jurisdictions and what it means for pretrial detainees. Section I.A analyzes Bell v. Wolfish, in which the Supreme Court established the test for pretrial detainees' conditions-of-confinement claims. Section I.B examines the Supreme Court's Eighth Amendment jurisprudence culminating in Farmer v. Brennan, in which the Court established the test for convicted prisoners' conditions-of-confinement claims. Section I.C analyzes the current circuit split in which a slight majority of courts now apply Farmer, as opposed to Wolfish, to pretrial detainees' conditions-of-confinement claims. Section I.D contends that whether Wolfish or Farmer is applied can have meaningful practical and legal consequences for pretrial detainees; in particular, courts applying Farmer equate detainees' rights with convicted prisoners' rights.

   1. Bell v. Wolfish: The Substantive Due Process Test for Pretrial Detainees'...