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Description
TABLE OF CONTENTS
INTRODUCTION I. THE SERIOUS RISK POSED BY SECONDHAND SMOKE II. SECONDHAND SMOKE AND THE EIGHTH AMENDMENT A. The Helling v. McKinney Standard B. Societal Intolerance Toward Significant Exposure C. The Deliberate Indifference Inquiry III. REMEDYING THE EIGHTH AMENDMENT VIOLATION CONCLUSION
INTRODUCTION
Setting: present day, a prison somewhere in the United States. The camera focuses on a lone inmate, Sheila Thomas, passing time in her cell. The soundtrack captures the dissonant rhythm of her sporadic coughing. The camera pans across neighboring cells, showing twenty fellow inmates smoking. Between them, the inmates simultaneously consume a pack of cigarettes, filling the air with toxic chemicals. The scene shifts to the prison's infirmary, where a line of inmates awaits medical treatment. Text scrolls onto the screen: "Approximately 115 inmates die each year as a result of exposure to secondhand smoke. By contrast, in 2006, only 53 inmates were legally executed in the United States." (1)
While this example relies on cinematic techniques for dramatic effect, its subject is far from fictional. Inmates unwittingly take part in such smoke-filled scenes in prisons (2) throughout the country, where secondhand smoke (3) ("SHS") may permeate every remote corner. Many prisons facilitate the pervasiveness of SHS by selling tobacco at prison commissaries and by failing to implement and adequately enforce smoking bans. Because a majority of states have instituted complete inmate smoking bans, SHS in prisons is less pervasive than it once was. Nevertheless, the risk remains very real in the twenty-one states that still permit inmate smoking on prison grounds. (4)
The Eighth Amendment ostensibly affords prisoners some protection against SHS. The Supreme Court has interpreted the Eighth Amendment's proscription against the infliction of "cruel and unusual punishment" (5) broadly, such that it applies not only to an inmate's sentence but also to the conditions of his or her confinement. (6) In 1993, the Court held in Helling v. McKinney that the Eighth Amendment protects inmates against the deliberate indifference of prison officials to a serious risk of harm posed by SHS. (7) Under Helling, inmates alleging SHS exposure must prove that the risk they face is "not one that today's society chooses to tolerate" (8) and that prison officials exhibit deliberate indifference by consciously disregarding that risk."
Notwithstanding the Court's decision in Helling, the Eighth Amendment has provided little actual recourse for inmates' SHS-related claims in lower courts. The Supreme Court has held that courts must use objective indicia to make factual determinations with respect to Eighth Amendment claims in order to avoid the appearance that the court's subjective viewpoint dictates the results. (10) Despite the requirement of objective analysis, inmates encountering a risk from SHS in states allowing inmate smoking have rarely been able to obtain relief. (11) Instead, their claims are often summarily dismissed in opinions presenting little analysis of factual findings necessitated by the Helling standard. (12)
This Note argues that courts should acknowledge current societal and medical perspectives on SHS and afford real protection to prisoners against SHS through injunctive relief. Part I examines evidence that conclusively demonstrates the serious risk of harm posed by SHS to the health of inmates. It reports that inmates' long-term exposure to SHS increases their risk of contracting lung cancer, heart disease, and other potentially life-threatening conditions. Part II argues that, as required by the Helling standard, contemporary society does not tolerate involuntary, long-term exposure to SHS and that prison officials exhibit deliberate indifference by allowing inmates to possess tobacco without effectively addressing the risk of harm that policy creates for other inmates. Additionally, Part II rejects the proposition that a court confronted with an Eighth Amendment violation may fail to act merely because legislative action may eventually cure the constitutional deficiency. Finally, Part III contends that a court is empowered to remedy this Eighth Amendment violation effectively by easing an inmate's burden of production and by ordering prison officials to adopt increasingly strict smoking restrictions until the inmate no longer faces a serious risk of harm.
I. THE SERIOUS RISK POSED BY SECONDHAND SMOKE
In 1993, when Helling was decided, the scientific community suspected that SHS was causally linked to a number of diseases, but research into the linkage was still in its infancy. Today, however, it is clear that the carcinogens in SHS present a serious risk of harm to smokers and nonsmokers alike. This Part reviews the medical evidence on SHS, documenting that SHS poses an especially serious risk of harm to the health of exposed inmates.
Significant evidence demonstrates that SHS, which contains as many as 250 known toxic substances or carcinogens, (13) leads to disease. A 2005 study estimated that SHS annually kills more than 49,000 adult nonsmokers in the United States due to lung cancer and coronary heart disease. (14) DNA-damaging material found in SHS leads to genetic mutations that cause lung cancer. (15) Coronary heart disease results from the interference of SHS with the cardiovascular system's "normal functioning." (16) SHS so rapidly impacts the cardiovascular system that exposure lasting even thirty minutes will have a measurable impact on indicators associated with increased risk of disease (17) and will affect the cardiovascular system eighty to ninety percent as much, on average, as active smoking. (18) SHS stimulates myriad other adverse effects, especially diseases affecting the respiratory system, such as asthma, lung impairment, and possibly chronic obstructive pulmonary disease. (19)
The risk of harm posed by SHS to the health of an exposed inmate (20) exceeds the risk confronting the average nonsmoker. Inmates are usually confined to specific areas of the prison facility and have little opportunity to escape contaminated air. (21) They spend the majority of their time in commonly affected spaces, including living areas, dining halls, recreational spaces, and prison libraries. (22) Moreover, overcrowding may cause prison officials to convert areas with insufficient ventilation for use as additional housing, leading to significantly increased SHS concentrations. (23)
Attempts to reduce the harm posed by SHS, including separating smokers and nonsmokers, regularly cleaning the prison air, and replacing indoor air with outdoor air, have proven ineffective. (24) Since SHS consists of a "complex mixture of [solid] and gaseous components," the characteristics of SHS evolve over time. (25) Smoke emitted from the burning end of a cigarette releases "volatile compounds," which tend to hang in the air. (26) The air filters used in most heating, ventilating, and air conditioning ("HVAC") systems are inadequate to fully cleanse the air because they typically fail to remove the small particles and gases comprising SHS. (27) Replacing indoor air with outdoor air is similarly ineffective since such mixing does not completely change the air and does not impact air quality evenly throughout a room. (28) Moreover, HVAC systems may minimize or shut off the influx of outside air in favor of contaminated indoor air when outside air is too warm, too humid, or too cold to be used to maintain an acceptable temperature. (29) Finally, prison HVAC systems generally circulate air throughout the facility, potentially redistributing contaminated air. (30)
In light of the inadequacy of ventilation-centered attempts to reduce exposure, and in the absence of effective smoking bans, significant concentrations of SHS confront inmates. Although the need for empirical research into SHS levels in prison has remained largely unfulfilled, a rare study conducted in Vermont prisons documented extreme nicotine concentrations when those prisons did not restrict smoking. (31) Researchers measured levels over three nonconsecutive weeks: before any smoking ban, while a complete smoking ban was in effect, and after outdoor smoking privileges were reinstated. (32) The study reveals that, in the absence of any smoking ban, prison air may contain nicotine concentrations up to twelve times higher than concentrations found in smokers' homes. (33) Since there is a linear relationship between exposure to SHS and the associated risk of developing lung cancer, (34) permitting smoking poses a significant risk to inmates.
Data from the Vermont study suggest that a complete ban, which prohibits possession of tobacco by inmates, is most likely to minimize exposure to SHS, but only when that ban is regularly enforced and prison officials put in place effective measures to combat tobacco smuggling. (35) Both the complete ban and the indoor ban significantly reduced--but did not eliminate--the presence of nicotine. (36) The researchers indicated that the modified smoking restrictions might have been more effective if the consequences for violating the smoking policy were greater. (37)
II. SECONDHAND SMOKE AND THE EIGHTH AMENDMENT
This Part argues that, under the Helling standard, prison officials violate the Eighth Amendment by failing to ban inmate smoking in order to prevent long-term exposure of inmates to significant levels of SHS. Section II.A explains the Helling standard. Section II.B argues that wide-reaching smoking bans demonstrate societal intolerance toward the serious risk of harm posed by involuntary, long-term exposure to significant levels of SHS. Section II.C contends that prison officials likely exhibit deliberate indifference by failing to completely ban the possession of tobacco by inmates despite recognizing that inmates' likely noncompliance with any lesser ban will subject nonsmoker inmates to a serious risk of harm.
A. The Helling v. McKinney Standard
The Supreme Court held in Helling v. McKinney that the Eighth Amendment prohibits the deliberate indifference of prison officials to a serious risk of harm posed by SHS to inmates. (38) The Eighth Amendment protects convicted prisoners against the infliction of creel and unusual punishment. (39) This protection applies to certain deprivations suffered during imprisonment, even when the inmate's sentence does not specifically provide for the deprivation. (40) The Supreme Court has explained the rationale by noting that:
[W]hen 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. (41)
These substantive limits change with the "evolving standards of decency that mark the progress of a maturing society," (42) incorporating contemporary notions of dignity, civilized standards, humanity, and decency. (43)
While the Court has recognized that the Constitution does not require "comfortable prisons," (44) it has held that the Eighth Amendment guarantees a "minimal civilized measure of life's necessities." (45) The Court has specified that these necessities include food, clothing, shelter, medical care, and reasonable safety, (46) the denial of which may "result in pain and suffering which no one suggests would serve any penological purpose." (47)
Since 1976, it has been clear that the Eighth Amendment protects against deliberate indifference to a prisoner's "serious medical needs." (48) Successful Eighth Amendment claims contain both objective and subjective elements. (49) The objective element requires the harm to be serious. (50) The subjective element, deliberate indifference, exists only where a defendant consciously disregards a risk. (51)
In Helling, the Supreme Court held that an inmate stated a viable Eighth Amendment cause of action by alleging that prison officials, with deliberate indifference, subjected him to an unreasonable risk of serious damage to his future health by allowing his continued exposure to SHS. (52) McKinney, a Nevada state prisoner, claimed that almost constant exposure to SHS from his cellmate's and others' cigarettes presented an unreasonable risk of harm to his health. (53) Nevada prison officials, according to McKinney, repeatedly denied his requests to transfer him to a single cell or to house him with a nonsmoker. (54) The Court rejected the prison officials' argument that only deliberate indifference to current serious health problems of inmates should be actionable. (55) It instead sanctioned "future harm" actions under the Eighth Amendment, indicating that it would be odd to deny relief to an inmate who has proven an unsafe, life-threatening condition on the ground that nothing has happened to him yet. (56) The Court also rejected arguments from the United States as amicus curiae that the harm to any particular individual from exposure to SHS was speculative and that the risk was not sufficiently grave, as a matter of law, to implicate a serious medical need. (57) The Court indicated that McKinney would have to prove on remand that "it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight." (58) However, pursuant to a settlement agreement, the district court dismissed the case with prejudice before undertaking any inquiry upon remand. (59)
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