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Necessary Suffering?: Weighing Government and Prisoner Interests in Determining What is Cruel and Unusual

41 Pages Posted: 29 Sep 2012  

Brittany Glidden

University of Denver Sturm College of Law

Date Written: September 28, 2012


The Eighth Amendment espouses a normative principle — that the government will not inflict “cruel and unusual punishment” — but courts have struggled to give content to the prohibition where it concerns prison conditions. Society expects a prison term to be uncomfortable and potentially painful, but the Constitution protects prisoners from inhumane conditions that violate standards of decency. To find that a condition is cruel and unusual, courts have two requirements: 1) an objective component, that the condition is sufficiently serious, and 2) a subjective component, that the prison official acted with a culpable mindset, which is defined as deliberate indifference.

In this article I assert that these two prongs are not functioning as intended — the objective prong has become subjective and the subjective prong has become objective. In determining what conditions are sufficiently serious, the lack of objective guidance forces courts to rely only on their own biases or assumption about prison. I suggest a more explicit and concrete balancing test to determine what conditions are serious, urging courts to balance the competing interests at stake — the harm to the prisoner caused by the condition and the interest of the government in having the condition.

This article also considers the subjective mindset requirement of the Eighth Amendment conditions test, and argues that many courts are already using objective factors to infer a culpable mindset in injunctive cases. I urge that this inference be made uniform, so courts are explicitly allowed to infer intent where the challenged conditions are ongoing, because of society’s heightened interest in allowed courts to protect prisoners from future harm.

Suggested Citation

Glidden, Brittany, Necessary Suffering?: Weighing Government and Prisoner Interests in Determining What is Cruel and Unusual (September 28, 2012). American Criminal Law Review, Fall 2012; U Denver Legal Studies Research Paper No. 12-32. Available at SSRN:

Brittany Glidden (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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