Wilson v. Seiter/Concurrence White
Justice WHITE, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, concurring in the judgment.
The majority holds that prisoners challenging the conditions of their confinement under the Eighth Amendment must show "deliberate indifference" by the responsible officials. Because that requirement is inconsistent with our prior decisions, I concur only in the judgment.
It is well established, and the majority does not dispute, that pain or other suffering that is part of the punishment imposed on convicted criminals is subject to Eighth Amendment scrutiny without regard to an intent requirement. The linchpin of the majority's analysis therefore is its assertion that "[i]f the pain inflicted is not 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." Ante, at 300 (emphasis added). That reasoning disregards our prior decisions that have involved challenges to conditions of confinement, where we have made it clear that the conditions are themselves part of the punishment, even though not specifically "meted out" by a statute or judge.
We first considered the relationship between the Eighth Amendment and conditions of confinement in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). There, the District Court had entered a series of remedial orders after determining that the conditions in the Arkansas prison system violated the Eighth Amendment. The prison officials, while conceding that the conditions were cruel and unusual, challenged two aspects of the District Court's relief: (1) an order limiting punitive isolation to 30 days; and (2) an award of attorney's fees.
In upholding the District Court's limitation on punitive isolation, we first made clear that the conditions of confinement are part of the punishment that is subject to Eighth Amendment scrutiny:
"The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, 'proscribe[s] more than physically barbarous punishments.' Estelle v. Gamble, 429 U.S. 97, 102 [97 S.Ct. 285, 290, 50 L.Ed.2d 251] [ (1976) ]. It prohibits penalties that are grossly disproportionate to the offense, Weems v. United States, 217 U.S. 349, 367 [30 S.Ct. 544, 549, 54 L.Ed. 793] [ (1910) ], as well as those that transgress today's ' "broad and idealistic concepts of dignity, civilized standards, humanity, and decency." ' Estelle v. Gamble, supra, [429 U.S.,] at 102 [97 S.Ct., at 290], quoting Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards." Id., [437 U.S.,] at 685, 98 S.Ct., at 2571 (emphasis added).
Focusing only on the objective conditions of confinement, we then explained that we found "no error in the [district] court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment." Id., at 687, 98 S.Ct. at 2571.
In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), we addressed for the first time a disputed contention that the conditions of confinement at a particular prison constituted cruel and unusual punishment. See id., at 344-345, 101 S.Ct. at 2397-2398. There, prisoners challenged the "double celling" of inmates at an Ohio prison. In addressing that claim, we began by reiterating the various bases for an Eighth Amendment challenge:
"Today the Eighth Amendment prohibits punishments which, although not physically barbarous, 'involve the unnecessary and wanton infliction of pain,' Gregg v. Georgia, [[[428 U.S. 153]],] 173 [96 S.Ct. 2909, 2925, 49 L.Ed.2d 859] [ (1976) ], or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592 [97 S.Ct. 2861, 2866, 53 L.Ed.2d 982] (1977) (plurality opinion); Weems v. United States, 217 U.S. 349 [30 S.Ct. 544, 54 L.Ed. 793] (1910). Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification.' Gregg v. Georgia, supra, [428 U.S.,] at 183 [96 S.Ct., at 2929]; Estelle v. Gamble, 429 U.S. 97, 103 [97 S.Ct. 285, 290-91, 50 L.Ed.2d 251] (1976).
"No static 'test' can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U.S. 86, 101 [78 S.Ct. 590, 598, 2 L.Ed.2d 630] (1958) (plurality opinion)." Id., 452 U.S., at 346, 101 S.Ct., at 2399 (footnote omitted).
We then explained how those principles operate in the context of a challenge to conditions of confinement:
"These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle v. Gamble, supra, we held that the denial of medical care is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. 429 U.S., at 103 [97 S.Ct., at 290]. In Hutto v. Finney, supra, the conditions of confinement in two Arkansas prisons constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivations of basic human needs. Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble, supra, at 103-104 [97 S.Ct., at 290-291]." Id., 452 U.S., at 347, 101 S.Ct., at 2399 (emphasis added).
Finally, we applied those principles to the conditions at issue, and found that "there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment." Id., at 348, 101 S.Ct., at 2400. Rhodes makes it crystal clear, therefore, that Eighth Amendment challenges to conditions of confinement are to be treated like Eighth Amendment challenges to punishment that is "formally meted out as punishment by the statute or the sentencing judge," ante, at 300-we examine only the objective severity, not the subjective intent of government officials.
The majority relies upon our decisions in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); and Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), but none of those cases involved a challenge to conditions of confinement. Instead, they involved challenges to specific acts or omissions directed at individual prisoners. In Gamble, for example, the challenge was not to a general lack of access to medical care at the prison, but to the allegedly inadequate delivery of that treatment to the plaintiff. Similarly, in Whitley the challenge was to the action of a prison guard in shooting the plaintiff during a riot, not to any condition in the prison. The distinction is crucial because "unlike 'conduct that does not purport to be punishment at all' as was involved in Gamble and Whitley, the Court has not made intent an element of a cause of action alleging unconstitutional conditions of confinement." Gillespie v. Crawford, 833 F.2d 47, 50 (CA5 1987) (per curiam ), reinstated in part en banc, 858 F.2d 1101, 1103 (CA5 1988).
Moreover, Whitley expressly supports an objective standard for challenges to conditions of confinement. There, in discussing the Eighth Amendment, we stated:
"An express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U.S. 97, 104 [97 S.Ct. 285, 291, 50 L.Ed.2d 251] (1976) ('deliberate indifference' to a prisoner's serious medical needs is cruel and unusual punishment), and harsh 'conditions of confinement' may constitute cruel and unusual pun'ishment unless such conditions 'are part of the penalty that criminal offenders pay for their offenses against society.' Rhodes v. Chapman, 452 U.S. 337, 347 [101 S.Ct. 2392, 2399, 69 L.Ed.2d 59] (1981)." 475 U.S., at 319, 106 S.Ct., at 1084 (emphasis added).
The majority places great weight on the subsequent dictum in Whitley that "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Ibid. See ante, at 298-299. The word "conduct" in that statement, however, is referring to "conduct that does not purport to be punishment at all," 475 U.S., at 319, 106 S.Ct., at 1084, rather than to the "harsh 'conditions of confinement' " referred to earlier in the opinion.
Not only is the majority's intent requirement a departure from precedent, it likely will prove impossible to apply in many cases. Inhumane prison conditions often are the result of cumulative actions and inactions by numerous officials inside and outside a prison, sometimes over a long period of time. In those circumstances, it is far from clear whose intent should be examined, and the majority offers no real guidance on this issue. In truth, intent simply is not very meaningful when considering a challenge to an institution, such as a prison system. 
The majority's approach also is unwise. It leaves open the possibility, for example, that prison officials will be able to defeat a § 1983 action challenging inhumane prison conditions simply by showing that the conditions are caused by insufficient funding from the state legislature rather than by any deliberate indifference on the part of the prison officials. See ante, at 301-302.  In my view, having chosen to use imprisonment as a form of punishment, a state must ensure that the conditions in its prisons comport with the "contemporary standard of decency" required by the Eighth Amendment. See DeShaney v. Winnebago Cty. Dept. of Social Services, 489 U.S. 189, 198-200, 109 S.Ct. 998, 1004-1006, 103 L.Ed.2d 249 (1989). As the United States argues: "[S]eriously inhumane, pervasive conditions should not be insulated from constitutional challenge because the officials managing the institution have exhibited a conscientious concern for ameliorating its problems, and have made efforts (albeit unsuccessful) to that end." Brief for United States as Amicus Curiae 19. The ultimate result of today's decision, I fear, is that "serious deprivations of basic human needs," Rhodes, supra, 452 U.S., at 347, 101 S.Ct., at 2399, will go unredressed due to an unnecessary and meaningless search for "deliberate indifference."
^1 It is telling that the lower courts often have examined only the objective conditions, and not the subjective intent of government officials, when considering Eighth Amendment challenges to conditions of confinement. See, e.g., Tillery v. Owens, 907 F.2d 418, 426-428 (CA3 1990); Foulds v. Corley, 833 F.2d 52, 54-55 (CA5 1987); French v. Owens, 777 F.2d 1250, 1252-1254 (CA7 1985), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986); Hoptowit v. Spellman, 753 F.2d 779, 784 (CA9 1985).
^2 Among the lower courts, "[i]t is well established that inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement." Smith v. Sullivan, 611 F.2d 1039, 1043-1044 (CA5 1980). See also, e.g., Wellman v. Faulkner, 715 F.2d 269, 274 (CA7 1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Ramos v. Lamm, 639 F.2d 559, 573, n. 19 (CA10 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Battle v. Anderson, 564 F.2d 388, 396 (CA10 1977); Gates v. Collier, 501 F.2d 1291, 1319 (CA5 1974).