NOTE: This post is not intended to give legal advice or political commentary. David Medical Services, PLLC is not involved with political activism.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i]
This is the Eighth Amendment of the Bill of Rights, something the Founding Fathers considered so important they made it one of the first changes to the Constitution. Incarcerated people are still a vulnerable population and are still likely to be unfairly harmed. This harm goes beyond abuse by guards or wardens; it also includes denial of or poor medical care[ii]. The Eighth Amendment does give incarcerated people a broad right to not suffer “cruel and unusual punishments.” But what “cruel and unusual” exactly means has been a point of controversy for years. For lawyers who deal with the rights of the incarcerated people, the incarcerated persons themselves, and anyone interested in their welfare, exactly what the law calls “cruel and unusual” is incredibly important to know. So, what exactly has the law called cruel and unusual?
From the 40s to the 70s, multiple court cases affirmed the right of incarcerated people to file a petition for a writ of habeas corpus (for anyone reading this who’s not a lawyer, this means the right of an inmate to sue their prisons or jails to challenge the legality of their imprisonment)[iii]. Several court cases also reaffirmed the Eighth Amendment as it applies to incarcerated people[iv]. Coffin v. Reichard (1944), for instance, ruled that the government must “protect [incarcerated people] against assault or injury from any quarter while so held.” Hutto v. Finney (1978)[v] went even further and asserted the right of courts to order prisons to give safer conditions to incarcerated people.
Starting in the late 70s, though, real focus began to be given to what exactly a “cruel and unusual” punishment was. The rights of the incarcerated began to be more defined, even restricted. The most famous case during this time was Estelle v. Gamble (1976), which established the “deliberate indifference” standard. That is, the Eighth Amendment’s “cruel and unusual punishment” clause was only violated when it was proven was “deliberate indifference by prison personnel to a prisoner’s serious illness or injury. ” That is, any neglect on the part of prison officials must be shown to be on purpose.
This standard was further defined in Whitley v. Albers (1986)[vi]. This suit was filed by an inmate at Oregon State Penitentiary. During a prison riot, a prison officer was taken hostage, and during the rescue, an inmate was shot. The Supreme Court did find that the prison guard’s conduct was negligent: Their plan involved potentially deadly force, and they failed to provide an adequate warning to prisoners before shooting. However, this was not deemed to be deliberate; it couldn’t be proven that the prison officials meant to cause excessive harm. The court finally ruled, “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” This standard was further affirmed in Wilson v. Seiter (1986), which stated that “A prisoner claiming that the conditions of his confinement violate the Eighth Amendment must show a culpable state of mind on the part of prison officials.[vii]”
These three cases share one key trait: If an inmate wants to prove that harm done to them by a prison official (whether medically related or not) violated their Eighth Amendment rights, it has to be proven that the harm was done on purpose, whether the official directly harmed the inmate or the official was deliberately indifferent or negligent to the inmate’s harm. While this did clarify the vague phrase “cruel and unusual” a little, it introduced a very subjective burden of proof.
From the 90s onward, the rights of the incarcerated people continued to develop. Some laws and cases continued to restrict their rights; for instance, the Prison Litigation Reform Act of 1995 (PLRA) was designed to restrict the ability of the incarcerated to sue, seemingly in contrast to earlier laws affirming their right to petition for habeas corpus. The PLRA introduced the “strict exhaustion requirement”—that is, before an incarcerated person can file a suit for a possible rights violation, they have to exhaust all other options to solve the problem (called “administrative remedies”). The law, however, does not specify what these “administrative remedies” might be. In addition, the PLRA ordered incarcerated people to pay court filing fees up front, unless they file in forma pauperis (again, for anyone who’s not a lawyer, this is a special legal status that identifies certain incarcerated people as poor and unable to pay those fees up front). This status, though, can be revoked under certain circumstances. The end result was a reintroduction of barriers in access to courts.
However, cases like Brown v. Plata (2011)[viii] further reaffirmed the rights of the incarcerated people. This case required the California state prison system to establish a population limit as a way to protect the health of the incarcerated—a good move, since overcrowding makes it much easier for diseases to spread. The case specifically linked this population limit to the Eighth Amendment: “If a prison deprives [incarcerated people] of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation.”
The concept of “cruel and unusual” is still changing to this day, and it will probably always be changing with society. It’s unclear, however, what the rights of the incarcerated population will look like in the future, since political parties are sharply divided on the topic. The Republican Party doesn’t directly mention the rights of the incarcerated, but it does seem to be more pro-authority, saying, “Public officials must regain control of their correctional institutions. . . . Courts should not tie the hands of prison officials in dealing with these problems”[ix]. The Democratic party, on the other hand, seems to be for expanding their rights, supporting more access to healthcare, a reduction of prison populations, more humane punishments, and more legal power for the incarcerated population to challenge their convictions[x]. In the end, the future of the rights of the incarcerated is foggy, and their lawyers need to be prepared for any new developments. Hopefully, though, the Eighth Amendment will stay respected, and the rights of this vulnerable population will remain intact.
[i] U.S. Const. amend. VIII (1789). Constitution Annotated. U.S. Constitution – Eighth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress
[ii] Estelle v. Gamble, 429 U.S. 97. (1976).
[iii] Ex parte Hull, 312 U.S. 546. (1941); Coffin v. Reichard, 143 F.2d 443. (6th Cir. 1944); Jones v. Cunningham, 371 U.S. 236. (1963); Talley v. Stephens, 247 F. Supp. 683. (E.D. Ark. 1965); Bounds v. Smith, 430 U.S. 817. (1977).
[iv] Coffin v. Reichard, 143 F.2d 443. (6th Cir. 1944); Trop v. Dulles, 356 U.S. 86. (1958); Talley v. Stephens, 247 F. Supp. 683. (E.D. Ark. 1965); Hutto v. Finney, 437 U.S. 678. (1978).
[v] Hutto v. Finney, 437 U.S. 678. (1978).
[vi] Whitley v. Albers, 475 U.S. 312. (1986).
[vii] Wilson v. Seiter, 501 U.S. 294. (1991).
[viii] Brown, et al. v. Plata, et al., 563 U.S. 493. (2011).
[ix] Republican National Committee. (2016). Republican platform 2016. Republican National Committee. *PDF File (gop.com)
[x] Democratic National Committee. (2020). 2020 Democratic Party platform. Democratic National Committee. 2020 Democratic Party Platform | The American Presidency Project (ucsb.edu)