Necessary suffering? Weighing government and prisoner interests in determining what is cruel and unusual.

Author:Glidden, Brittany

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)


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. It is normal for judges or juries to want know the reason for a condition in order to assess its seriousness. For example, juries recognize that a prisoner placed into solitary confinement for two years for a violent incident is inherently different from a person placed there for no reason at all. Yet, the Supreme Court has never clarified whether a subjective assessment of a prison official's motivations belongs in first prong, the second prong, or has no place in the analysis.

Lower courts disagree about the role intent should play in Eighth Amendment analyses. While lower courts have traditionally viewed intent as part of the subjective prong, some regularly incorporate intent analyses into the objective prong. As a result, the test fails to provide sufficient guidance to a court faced with any novel challenge to a prison condition. Without guidance, courts do as they often do in prison case: they defer to the assessments of prison officials. Yet, by deferring, courts ignore the protection provided by the Eighth Amendment. While the Amendment is intended as a check against excessive state action, those same state actors are defining its limits. Put another way, by deferring to the judgment of correctional officers, courts have effectively turned the objective prong on its head: it now hinges on the subjective motivations of the people it is intended to monitor.

The test also requires prison officials to have a subjective mindset of "deliberate indifference." Determining an individual's intent is difficult in any context, but the prison setting is especially challenging because it often implicates the practices and policies of the entire correctional system. In many cases, neither the policy's initial enactment nor the actions of the prison staff required to follow the policy resulted from a specific intent to harm prisoners, which makes the intent analysis very challenging for jurists.

When a harmful condition is ongoing, many courts also seem to infer intent on the part of prison defendants since the officials are willing to allow the conditions to persist. I argue that this inference should be made explicit in all injunctive cases. When harmful conditions are allowed to continue, there is culpability even without proof of mindset. Inferring intent in injunctive cases is more efficient and allows the courts to interfere in ongoing conditions cases where society has a strong interest.

Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that is absent from conditions cases. Part III considers whether proportionality review can be imported into the context of challenges to prison conditions, and the benefits and drawbacks of doing so.

Part IV discusses how the two-prong test should be modified to address these concerns. First, I argue that the current "objective" test should include a balancing test reviewing the "excessiveness" of a given condition. This analysis would expressly permit courts to consider the prison condition in light of the purpose for which it is employed. Second, I urge courts to infer intent in injunctive cases under the "subjective" prong. This inference will promote efficiency and will ensure that ongoing harmful conditions are stopped.

This modified version of the two-prong test would maintain the two foci of current Eighth Amendment conditions law--the significance of the harm of the challenged condition and the intent of the prison official in creating or prolonging it. Yet the modifications would also allow a framework that more cleanly aligns with the societal means of identifying what is cruel, and the societal interest in ensuring that our prisons do not perpetuate harmful conditions of confinement.


    To be considered punishment, a penalty or negative action must be intentionally inflicted, usually in response to an offense. (11) While it is axiomatic that criminal sentences are deliberately prescribed, there is disagreement as to whether prison conditions are imposed intentionally and therefore constitute "punishment." Unlike sentences or fines, prison conditions are neither dictated by state statute nor ordered by a judge. (12) Usually a prisoner's conditions do not directly relate to his crime of conviction, (13) but result from general prison policies, such as the use of handcuffs and restraint chairs, or from circumstances such as overcrowding or the presence of asbestos. (14) Because conditions are not always the result of intentional conduct on the part of prison actors, courts have vacillated on the question of whether they qualify as punishment.

    Prior to the mid-1900s, there was no doctrine that permitted prisoners to challenge their conditions of confinement. Courts adopted what was retrospectively referred to as the "hands-off' doctrine, a refusal to interfere in prison matters, because they believed it would be disruptive and would implicate separation of powers concerns. (15) The growth of the social services movement during the twentieth century began to change this view. (16) As the government assumed additional responsibilities as caretaker for its citizens and the civil rights...

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