Cruel and Unusual Punishment

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Cruel and Unusual Punishment

The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishments.”300 The power of this prohibition is not limited to claims challenging the duration or nature of a punishment.301 However, the prohibition has been interpreted in a “flexible and dynamic manner.”302 In modern times the Eighth Amendment has been interpreted to proscribe not only “physically barbarous” punishments, but also punishments which “involve the unnecessary and wanton infliction of pain” or are “grossly disproportionate to the severity of the crime.”303 “Unnecessary and wanton” pain includes punishments that are “totally without penological justification.”304

The Constitution does not, however, require that prisons be comfortable.305 In fact, they can even be harsh.306 However, they may not be inhumane.307 The Eighth Amendment is violated when prison conditions are serious enough to deprive an inmate of the “minimal civilized measure of life's necessities.”308 The question, then, is where to draw the line.

The Eighth Amendment has been interpreted to require that prisoners receive “adequate” food, alongside clothing, shelter, medical care, and reasonable safety.309 There is no need for the food to be “tasty” or “aesthetically pleasing.”310 Does this mean that meals of diced raw tarantula are constitutional, as long as they provide adequate nutrition?

The “circumstances, nature, and duration” of a prisoner’s deprivation must be considered when determining whether a constitutional right has been violated.311 “The more basic the need, the shorter the time it can be withheld.”312 “A condition which might not ordinarily violate the Eighth Amendment may nonetheless do so if it persists over an extended period of time.”313 It would seem, then, that serving meals of tarantula or Nutraloaf for days on end may be unconstitutional even if a single such meal is not. However, Nutraloaf has a potentially redeeming factor: it requires no tray or utensils.314 A prison has a duty to protect its employees when the prisoners use food service items as weapons.

When a prison’s rule infringes upon an inmate’s constitutional rights, the rule may stand if it is “reasonably related to legitimate penological interests.”315 The Supreme Court has developed a four-factor test for this standard.316 Most importantly, the rule must have a “valid, rational connection” to the legitimate government interest supporting it.317 If there is such a connection, a court should also consider (2) whether the inmate has an alternate method to express the constitutional right, (3) the prison’s burden in accommodating the inmate’s right, and (4) whether the government has an alternate method to achieve its goal.318

Assume for a moment that a particular Nutraloaf recipe is unpleasant enough to be possibly acceptable for a short time but possibly unconstitutional over a term of many days. This is no idle assumption: at least one unfortunate inmate ate Nutraloaf for a hundred days,319 and the Supreme Court has ruled that another controversial prison food may or may not be unconstitutional depending on how long it is served.320 Also assume that a given prison uses this variety of Nutraloaf as one of several available punishments for a variety of misbehaviors not related to food. This use of Nutraloaf meets the first factor – an unpleasant punishment has a valid, rational connection to encouraging the inmate to behave properly. This use does not meet the other three factors, though, because there are a variety of other punishments that the prison could use to the same effect that are not contested as unconstitutional.

Now assume that the prison uses Nutraloaf only in response to an inmate’s misuse of eating utensils as weapons. This use of Nutraloaf also meets the first factor – the inmate will no longer be able to use utensils as weapons. It also satisfies the other three factors. There are alternative methods for the government to achieve its goal: the food could be cut up by a guard and feed to the shackled inmate one bite at a time, or injected intravenously while the inmate is anesthetized. These methods simultaneously provide the inmate alternate methods to express the constitutional right: the right to not eat food that tastes unreasonably bad. However, these alternatives would place a heavy burden on the prison, so in this case Nutraloaf would probably be allowed for a reasonable amount of time. Of course, in this case the prison has no reason to use a recipe that is more unappetizing than necessary to deliver adequate nutrition in the form of a loaf.

Why, though, was it even necessary for prisons to invent Nutraloaf when there are perfectly normal foods that do not require utensils? Why not avoid all controversy by topping that scrap of freezer paper with a pizza, burrito, or baloney sandwich?

One overriding concern is nutrition. The Eighth Amendment uncompromisingly requires adequate nourishment.321 If it is not possible to meet all facets of the nutritional standards in a common form factor, Nutraloaf is justified. It may, for example, simply be impossible to pack in enough fruits and vegetables without using too much bread to contain them.

Assuming a popular type of food could meet nutritional requirements, Nutraloaf may also be justified if the popular food can be misused. For example, a pizza crust may be tough enough to use as a lockpick, and the prison kitchen may have difficulty achieving such consistency that no crust is ever served hard. If an inmate is dangerous enough, a prison may legitimately object to any throwable food item that does not crumble upon impact as easily as Nutraloaf. One case pointed out that even increased usage of fresh fruits and vegetables could become a security threat in the form of alcohol.322 (Prison alcohol can be made without fruits or vegetables,323 but it is unclear from the opinion whether any of the parties were aware of this fact.)

Assuming a popular type of food could both meet nutritional requirements and be difficult to misuse, a prison may have a tough time proving that Nutraloaf is necessary. If the Nutraloaf tastes unreasonably bad and the alternative food does not, the Supreme Court’s four-factor test324 would require the prison to use the alternate method. Consider, though, that if the popular type of food is modified to fully meet same nutritional requirements as the Nutraloaf, it would consist of roughly the same mix of ingredients. As long as the Nutraloaf preparation was not intentionally designed to be repulsive the two different presentations of the same ingredient list would likely taste somewhat similar.

Of course, all of this reasoning assumes that the Nutraloaf does, in fact, taste unreasonably bad. If it is tasteless or even just slightly unpleasant, prisoners do not have a constitutional right to something more delicious.325 The prison administrators have more pressing considerations such as the extra cost of ingredients for the popular food type,326 the added complexity of preparing it,327 or the reactions of other prisoners to the fact that a select few receive food that could be viewed as better than the usual.328 Any lingering doubts about the propriety of Nutraloaf are swept away by the Supreme Court’s declaration that prisons should be granted “wide-ranging deference” in judgment to deal with the difficult problems they face.329

In summary, the Eighth Amendment’s prohibition against cruel and unusual punishment requires that Nutraloaf supply adequate nourishment to keep its recipient healthy, that it not be used for an unnecessary amount of time on any particular prisoner, that it only be used in response to food-related misbehavior, and that the recipe not be intentionally repulsive.

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