INMATE CONSTITUTIONAL CLAIMS AND THE SCIENTER REQUIREMENT.

• Author: Woolhandler, Ann

TABLE OF CONTENTS INTRODUCTION I. UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT AND EXCESSIVE FORCE: AN OVERVIEW II. PURPOSE AND PUNISHMENT A. The Role of a No-Punishment Norm in Eighth Amendment and Substantive Due Process Cases B. Punishment and Other Purposes C. Effects as Punishment? III. THE PROPRIETY OF A SCIENTER REQUIREMENT FOR INMATE SUITS EVEN APART FROM PUNISHMENT IV. SYSTEMIC HARMS VERSUS INDIVIDUAL HARMS V. THE EFFECT OF SCIENTER ON OUTCOMES CONCLUSION INTRODUCTION

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish certain kinds of constitutional claims against corrections officials. (1) The Eighth Amendment is currently understood to require convicted prisoners to show that a prison official acted "maliciously or sadistically" to establish an excessive force claim and with subjective "deliberate indifference" to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to pretrial detainees, whose claims--because the detainees are not yet convicted--are governed by substantive due process rather than the Eighth Amendment. (2)

The Supreme Court's decision in Kingsley v. Hendrickson (3) heightened the criticism of scienter (4) requirements for inmate suits. In Kingsley, the Court held that a pretrial detainee claiming that corrections officials used excessive force in violation of the Fourteenth Amendment's Due Process Clause need only show that the force was objectively unreasonable. (5) The plaintiff was not required to make the further showing of malice that would have been required under the Eighth Amendment for excessive force claims by convicted prisoners. In the wake of Kingsley, Professor Margo Schlanger and others have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment. (6) These proposals echoed pre-Kingsley calls by scholars such as Professors Sharon Dolovich and Alice Ristroph for minimizing or eliminating scienter requirements in inmate suits in favor of negligence or strict liability standards. (7)

These critics not only agree that the Court should move toward using only objective standards, but they are also largely in accord as to reasons for doing so. They claim that the state-of-mind requirements for both Eighth Amendment and substantive due process claims (8) originate from a mistaken belief that an intent to punish must be established to invoke the Eighth Amendment's prohibition of cruel and unusual punishment. (9) And they argue that the intent requirements mistakenly treat what are essentially systemic harms as individual wrongs by corrections officials. (10) They assume, moreover, that the scienter requirements impose a significant roadblock to successful inmate claims and thus to meaningful improvement in the treatment of prisoners. (11)

This Essay evaluates the arguments against scienter requirements in inmate constitutional litigation. It concludes that state-of-mind requirements are more justified than critics claim.

1. UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT AND EXCESSIVE FORCE: AN OVERVIEW

   The kinds of inmate claims that this Essay addresses--both with respect to convicted prisoners and pretrial detainees--are claims of unconstitutional conditions of confinement and claims of excessive force. (12) As noted above, these are treated as Eighth Amendment claims when brought by convicted prisoners, whether in state or federal custody. The Eighth Amendment is inapplicable to pretrial detainees, however, because they are not convicted prisoners subject to punishment. (13) Substantive due process is therefore the source of rights for pretrial detainee claims regarding conditions of confinement and excessive force.

   Conditions claims. Conditions claims can be subdivided into two main groups: claims that raise more systemic issues, such as overcrowding, and claims that allege more episodic harms, such as those involving the failure of corrections officials to protect an inmate from third-party violence or the failure to attend to serious medical needs of an individual prisoner. (14) All Eighth Amendment conditions claims--i.e., those that involve convicted prisoners--contain an objective component as well as a subjective component. In general prison conditions cases, convicted prisoners must show that the challenged conditions objectively failed to meet basic human needs (15) and that prison officials were deliberately indifferent to such harms. (16) Claims of failure to address serious medical needs require both the objective showing of a serious medical need and deliberate indifference to the serious need. (17) Similarly, a claim based on failure to protect a prisoner from third-party violence--e.g., violence by a fellow prisoner--requires showing an objectively substantial risk of serious harm to the prisoner and deliberate indifference of the official. (18) Deliberate indifference in these inmate cases is subjective deliberate indifference--that is, it requires actual knowledge of a substantial risk of serious harm. (19)

   With respect to conditions, the Due Process Clauses of the Fourteenth and Fifth Amendments provide protections for state and federal detainees that are similar to those that the Eighth Amendment provides for convicted prisoners. Most courts use a subjective deliberate indifference standard for pretrial detainee particularized conditions cases, as they do in all Eighth Amendment prison conditions claims. (20) There is, however, some division and lack of clarity among the federal appellate courts as to whether a subjective deliberate indifference or an objective unreasonableness standard applies for general conditions claims of pretrial detainees. (21)

   Excessive force. Convicted prisoners' Eighth Amendment excessive force claims also contain an objective and subjective component. They require an objective showing of unreasonable force and a subjective element that looks to "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." (22) For pretrial detainees claiming the use of excessive force under the Fourteenth Amendment, however, the Court in Kingsley v. Hendrickson applied an objective reasonableness test rather than the malice test required for convicted prisoners. (23)

   In summary, convicted prisoners under Eighth Amendment standards must show subjective deliberate indifference in both general and specific conditions claims. And they must show malice in excessive force claims. Pretrial detainees under Due Process standards usually need to show subjective deliberate indifference as to specific conditions claims, and many circuits require such a showing for general conditions claims. Pretrial detainees need only show objective unreasonableness in excessive force claims.

2. PURPOSE AND PUNISHMENT

   Many scholars object to scienter requirements (such as malice or subjective deliberate indifference) in prisoner or pretrial detainee claims regarding conditions and excessive force. Professor Schlanger, for example, applauded Kingsley's use of an objective reasonableness test for pretrial detainees' excessive force claims and recommended the use of such a reasonableness test across the board for all inmate claims of excessive force and conditions--whether general or particular, and whether brought by convicted prisoners or pretrial detainees. (24) Professor Dolovich has suggested a "modified" strict liability or negligence standard for convicted prisoners' claims, (25) while Professor Ristroph has generally questioned the Court's focus on an intent to chastise or deter as critical to Eighth Amendment standards. (26)

   These critics argue that the Court derives the scienter requirement from its mistaken conclusion that the Eighth Amendment cruel and unusual punishment prohibition requires an intent to punish. To assess their arguments, it is first necessary to determine what role punishment plays in both Eighth Amendment and analogous substantive due process doctrine.

   1. The Role of a No-Punishment Norm in Eighth Amendment and Substantive Due Process Cases

      The Eighth Amendment historically addressed legislatively and judicially imposed sentences. (27) These practices clearly involved an intent to chastise or deter, and constitutional issues often focused on whether the intended punishment was cruel and unusual. (28) As the Eighth Amendment expanded into other areas, Judge Henry Friendly's influential opinion in Johnson v. Glick (29) suggested that a showing of deliberate imposition of punishment was required to hold corrections officials liable for Eighth Amendment violations:

      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted suggests action taken, usually by a court, in carrying out a legislative authorization or command. ... The background of our own Bill of Rights, however, makes clear that the Eighth Amendment was intended to apply not only to the acts of judges but as a restraint on legislative action as well. ... Indeed, every decision of the Supreme Court striking down a punishment under the Eighth Amendment has concerned a legislative act. We do not suggest, however, that the cruel and unusual punishment clause must necessarily be read as limited to acts of legislatures in authorizing sentences or of judges imposing them. It can fairly be deemed to be applicable to the manner in which an otherwise constitutional sentence, as the death penalty was then thought to be, is carried out by an executioner, or to cover conditions of confinement which may make intolerable an otherwise constitutional term of imprisonment. On a parity of reasoning, we find no difficulty in considering the cruel and unusual punishment clause to be applicable to such systems of prison discipline as solitary confinement or corporal...