Exposure to Tobacco Smoke is More than Offensive, It is Cruel and Unusual Punishment

Abstract

In McKinney v. Anderson, the Ninth Circuit Court of Appeals found that compelled exposure to environmental tobacco smoke (ETS) may constitute cruel and unusual punishment. The Fifth, Seventh, and Tenth Circuits, however, have reached the opposite conclusion. The Supreme Court should affirm the Ninth Circuit's ruling in McKinney for two reasons. First, the medical evidence introduced since the Ninth Circuit decided McKinney confirms that court's belief "that the attitude of our society has evolved at least to a point that it violates current standards of decency to expose unwilling prisoners to ETS levels that pose an unreasonable risk of harm to their health." Thus, any debate concerning ETS's dangers ended with the issuance of the 1993 EPA Report. Second, the Ninth Circuit's decision in McKinney should be upheld because it is consistent with Eighth Amendment precedent. The relationship of inmates to prison officials is one of entrustment. As such, prison officials are bound not only to protect inmates from physical harm, but also to provide them with safe living conditions. Furthermore, compelling prisoners to live in hazardous environments, such as smoke-filled cells, is as dangerous, if not as cruel and unusual, as many of the punishments that the framers of the Constitution envisioned. In the past twenty years, federal courts have repeatedly held that exposing inmates to substances or conditions less dangerous than ETS constitutes cruel and unusual punishment. "Therefore, since no legal or medical reason exists to draw the line at ETS, courts must now insist that prisons ban smoking or, at the very least, restrict it to certain cell-blocks within the prison. Section II of this Article explores the medical evidence linking ETS to lung cancer, heart disease, and certain other health risks in nonsmokers. Section III examines the history of the Eighth Amendment's ban on cruel and unusual punishment, particularly as it relates to dangerous or unhealthy prison conditions. Section IV analyzes the Ninth Circuit's decision in McKinney v. Anderson.'I Section V questions whether a judicial ban on smoking would itself constitute cruel and unusual punishment to smokers. Finally, Section VI sets forth two reasons, in addition to those enunciated by the Ninth Circuit, for the Supreme Court to affirm McKinney.

Keywords: McKinney v. Anderson, environmental tobacco smoke (ETS), Eighth Amendment's ban on cruel and unusual punishment