Raising the 'Civilized Minimum' of Pain Amelioration for Prisoners to Avoid Cruel and Unusual Punishment

36 Pages Posted: 1 Oct 2014

See all articles by James McGrath

James McGrath

Texas A&M University School of Law

Date Written: 2002


This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author contends that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.

Keywords: criminal law, cruel and unusual, punishment, pain, eighth amendment, pain management

JEL Classification: K14, K49

Suggested Citation

McGrath, James, Raising the 'Civilized Minimum' of Pain Amelioration for Prisoners to Avoid Cruel and Unusual Punishment (2002). Rutgers Law Review, Vol. 54, p.649, 2002. Available at SSRN: https://ssrn.com/abstract=2503036

James McGrath (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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