Wednesday, September 29, 2010

Constitution 2020: Prison Conditions and the Eighth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Sharon Dolovich

If constitutional protections for the most disenfranchised and marginalized in American society are to be reinvigorated, a broader scope is required for Eighth Amendment protections for prisoners than current law allows. True, governing Supreme Court precedent—specifically Farmer v. Brennan[i]—stands squarely in the way of any such constitutional renewal. But given Farmer’s flimsy motivating premises, state officials should resist defining their own constitutional obligations on its terms. For this same reason, Farmer could be readily and justifiably overruled by a future Court, which should have no more compunction in abandoning that precedent than it would in overruling Plessy v. Ferguson were that now discredited case still on the books.

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” Yet as the law stands now, even plainly cruel conditions in the nation’s prisons and jails are routinely found to pose no Eighth Amendment problem. More troubling still, controlling legal standards operate to create a no-liability zone in which conditions that escape the notice of prison officials can be as brutal, as violent, as scary as one could imagine—without implicating the Eighth Amendment.

Why does the Eighth Amendment have no teeth in the prison conditions context? The reason lies in the unlikely case of Farmer v. Brennan.[ii]

The question at issue in Farmer may seem extremely narrow and legalistic. Farmer, decided in 1994, followed the 1991 case of Wilson v. Seiter.[iii] Wilson had held that plaintiffs challenging the conditions of their confinement have to show that prison officials were “deliberately indifferent” to the risk of serious harm to prisoners. Farmer asked: is the state of mind of “deliberate indifference” subjective or objective?

As it happens, much turns on the answer. If deliberate indifference were an objective standard, prison officials would be liable for any harmful conditions about which a reasonable correctional officer paying appropriate attention on the job would have known—and thus about which prison officials should have known. On an objective standard, if a correctional officer should have been paying attention but wasn’t—if, say, he was reading Popular Mechanics or Soap Opera Digest while someone in his housing unit was being attacked or attempting suicide or dying for lack of her heart meds—that officer could be found deliberately indifferent and liable under the Eighth Amendment. An objective standard, in other words, would acknowledge that prison officials have an affirmative obligation to protect the people the state incarcerates from gratuitous suffering. It would put the burden on officials in charge of the prisons to be on top of what is going on in their facilities: to monitor, investigate, discover and take reasonable steps to avert potential dangers before those dangers manifest themselves in grievous and unnecessary harm to those in custody.

In Farmer, the Court held instead that deliberate indifference is a subjective standard, and thus that there is no Eighth Amendment liability for “denying an inmate humane conditions of confinement unless the official [actually] knows of and disregards an excessive risk to inmate health or safety.”[iv] This holding dramatically shrinks the state’s constitutional obligations to the people society incarcerates. It also creates a perverse incentive. After Farmer, prison officials can be held constitutionally liable only for those prison conditions that they happen to notice. In this way, Farmer’s holding encourages and even rewards a prison official’s utter failure to pay attention. This is Farmer’s legacy: a no-liability zone where inhumane and even brutal conditions create no constitutional liability.

Yes, people are sent to prison as punishment. But the punishment prison represents is social exile, the loss of liberty to go where one chooses, associate with whomever one likes, and define the terms of one’s own existence. People are imprisoned to keep them away from society, as a way to enforce the loss of liberty the state has decreed. As soon as society opts to incarcerate, however, it faces a challenge: all these people are now locked away without the ability to fend for themselves. Unless the state meets the basic needs of its prisoners—food, shelter, clothing, medical care, etc.—those needs will not be met. And of course, once the state decides to crowd together in close quarters a bunch of people some of whom have shown themselves capable of terrible violence, there is a real risk that the strong will prey on the weak unless protective measures are taken.

No doubt, there are plenty of people whose crimes are so awful that society would like nothing better than to send them into exile to suffer and die. Why can’t we do this? Because the Constitution prohibits “cruel and unusual” punishment. As even the Farmer Court acknowledged, “having incarcerated persons [with] demonstrated proclivit[ies] for antisocial criminal, and often violent conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”[v] In making this point, Farmer cited the earlier case of DeShaney v. Winnebago County of Social Services, in which Chief Justice Rehnquist famously announced that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to take some responsibility for his safety and well-being.”[vi]

So the Farmer Court acknowledged the state’s constitutional obligation to take affirmative steps to protect and provide for the basic needs of prisoners. And yet it held that deliberate indifference is a subjective standard, thus precluding liability for state officials who cause harm because they weren’t paying attention. How can this be? Are prison conditions cruel when prisoners suffer grievous and gratuitous harm that could have been avoided had COs been proactive, or are they not?

What at first appears a contradiction proves easily explained: Farmer reached its surprising and seemingly inconsistent result by sidestepping the question of cruelty altogether. Instead, it focused on the meaning of “punishment.” As the Farmer Court put it, “[t]he Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’”[vii] In Wilson, the Court found that unless the pain at issue is “formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify [as punishment].”[viii] Following this logic, Farmer concluded that unless some prison official actually knew of and disregarded the risk, any pain or suffering a prisoner might experience, however agonizing and predicable, could not ground an Eighth Amendment violation—not because the prisoner’s treatment was not cruel, but because it was not punishment.

What does all this mean for Constitution 2020? Farmer suggests there is little available scope for more capacious constitutional protection for prisoners. The Eighth Amendment does apply only to punishment. And if Farmer is right that prison conditions are not punishment unless some official actually realized the risk of harm, then maybe the Eighth Amendment just turns out to have less to say about contemporary realities in America’s prisons and jails than might have been thought. But this cramped view of the constitutional prohibition on cruel and unusual punishment is ultimately unpersuasive, for one simple reason: Farmer’s reasoning does not stand up to scrutiny.

On Farmer’s logic, if a correctional officer fails to notice a rape taking place in the corner of the prison’s day room, or refuses to call the medics for a person lying immobile in “a stupor [and] soaked in his own sweat and urine” because she thinks he’s faking,[ix] her failure to protect prisoners against sexual assault or to provide medical attention is not punishment and therefore not a constitutional problem. But this notion misperceives the nature of the “punishment” at issue. The Eighth Amendment is concerned not with the punishment of one individual by another but with that imposed by the state as penalty for crimes.[x] And state punishment cannot be inflicted by one person acting alone, even a person acting in an official capacity. It is instead, and can only be, the result of a collective process undertaken by a series of state officials acting on behalf of the state. An official’s treatment of a convicted offender constitutes punishment for Eighth Amendment purposes when—and because—it is inflicted in the course of administering a penalty pronounced by a duly authorized sentencing court. This means that the resulting conditions—including being left unprotected in the day room with violent predators, or left in the custody of someone unable to recognize or credit the signs of genuine medical distress—represent state punishment imposed on the target regardless of what responsible officials happened to know or believe or intend about the situation at hand. And because these conditions constitute punishment in this constitutional sense, they are appropriately open to Eighth Amendment scrutiny.

Farmer’s specious focus on “punishment” allowed the Court to avoid the more pressing constitutional question of when prison conditions may be said to be cruel. Yet this is the precisely the inquiry that ought to motivate good-faith efforts to determine the scope of the Eighth Amendment protection for prisoners.

What of Farmer itself? Above, I suggested that a future Court should no more hesitate to overrule Farmer than it would to overrule Plessy. This parallel between Plessy and Farmer is deliberately drawn.[xi] Prisoners in America today are overwhelmingly, disproportionately people of color, African American in particular. The racial make-up of our prisons and jails makes Farmer’s judicial legitimation of official neglect especially troubling. It also helps to explain why a renewed focus on the Eighth Amendment must be an urgent component of any meaningful project of progressive Constitutionalism.

Sharon Dolovich is Professor of Law at UCLA School of Law. You can reach her by e-mail at Dolovich at

[i] 511 U.S. 825 (1994).

[ii] 511 U.S. 825 (1994).

[iii] 501 U.S. 294 (1991).

[iv] Farmer v. Brennan, 511 U.S. at 837.

[v] Farmer v. Brennan, 511 U.S. at 833.

[vi] 489 U.S. 189, 199-200 (1989). As Chief Justice Rehnquist went on to explain:

When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs--e.g., food, clothing, shelter, medical care, and reasonable safety--it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.


[vii] Farmer, 511 U.S. at 837.

[viii] Wilson v. Seiter, 501 U.S. 294, 300 (1991).

[ix] See Paul von Zielbauer, As Health Care in Jails Goes Private, 10 Days Can Be a Death Sentence, N.Y. Times, Feb 27, 2005 at A1 (describing the case of Brian Tetrault, who died in a jail cell in upstate New York after jail staff cut off his Parkinson’s meds and then, when he slid into a coma on the floor of his cell, “dismissed him as a faker”).

[x] See Ingraham v. Wright, 430 U.S. 651 (1977).

[xi] Austin Sarat once called Farmer v. Brennan the Plessy v. Ferguson of our time.

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