Inmate Constitutional Claims and the Scienter Requirement
23 Pages Posted: 3 Mar 2020 Last revised: 5 Mar 2020
Date Written: February 28, 2020
Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment.
Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees. This Essay argues that the scienter requirements are more justified than the critics claim. The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter. Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts. State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.
Keywords: Eighth Amendment, excessive force, prison conditions, Bivens actions, 42 U.S.C. 1983, scienter, federal courts, constitutional law, pre-trial detention, prisoner rights
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