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84 N.Y.U. L. Rev. 881 (2009)
Cruelty, Prison Conditions, and the Eighth Amendment

handle is hein.journals/nylr84 and id is 889 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 84 OCTOBER 2009 NUMBER 4 ARTICLES CRUELTY, PRISON CONDITIONS, AND THE EIGHTH AMENDMENT SHARON DOLOVICH* The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal pun- ishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a sub- stantial risk of serious harm to prisoners, prison conditions are not punishment within the meaning of the Eighth Amendment. Farmer's reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions. At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psycholog- ical harm. This obligation, which amounts to an ongoing duty to provide for pris- * Copyright © 2009 by Sharon Dolovich, Professor of Law, UCLA School of Law. For helpful comments, I thank Rick Abel, Rachel Barkow, David Dolinko, Ingrid Eagly, Richard Fallon, Robert Goldstein, Mark Greenberg, Lani Guinier, Youngjae Lee, Daryl Levinson, Martha Minow, Jonathan Masur, Margo Schlanger, Joanna Schwartz, Anne Simon, Carol Steiker, workshop participants at Chicago, Georgetown, Harvard, and UCLA, and the students in my Spring 2008 Eighth Amendment seminar at Harvard Law School. Thanks also to Dean Michael Schill for his generous support of this project and to Jacob Howard, Eli Tomar, Jordan Woods, and Katie Wozencroft for outstanding research assistance. 881 Reprinted with permission of New York University School of Law

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