# Hudson v. McMillian/Dissent Thomas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Blackmun
* Dissenting Opinion Thomas
Justice Thomas, with whom Justice Scalia joins, dissenting.
We granted certiorari in this case "limited to the following question," which we formulated for the parties:
   "'Did the Fifth Circuit apply the correct legal test when determining that petitioner's claim that his Eighth Amendment rights under the Cruel and Unusual Punishments Clause were not violated as a result of a single incident of force by respondents which did not cause a significant injury?'" 500 U.S. 903 (1991).
Guided by what it considers "the evolving standards of decency that mark the progress of a maturing society," ante, at 8 (internal quotation marks omitted), the Court today answers that question in the negative. I would answer it in the affirmative, and would therefore affirm the judgment of the Fifth Circuit. I respectfully dissent.

#### I

The Magistrate who found the facts in this case emphasized that petitioner's injuries were "minor." App. 26, 28. The three judges of the Fifth Circuit who heard the case on [p. 18] appeal did not disturb that assessment, and it has not been challenged here. The sole issue in this case, as it comes to us, is a legal one: Must a prisoner who claims to have been subjected to "cruel and unusual punishments" establish at a minimum that he has suffered a significant injury? The Court today not only responds in the negative, but broadly asserts that any "unnecessary and wanton" use of physical force against a prisoner automatically amounts to cruel and unusual punishment, whenever more than de minimis force is involved. Even a de minimis use of force, the Court goes on to declare, inflicts cruel and unusual punishment where it is "repugnant to the conscience of mankind." Ante, at 10 (internal quotation marks omitted). The extent to which a prisoner is injured by the force—indeed, whether he is injured at all—is in the Court's view irrelevant.
In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment. In concluding to the contrary, the Court today goes far beyond our precedents.

##### A

Until recent years, the Cruel and Unusual Punishments Clause was not deemed to apply at all to deprivations that were not inflicted as part of the sentence for a crime. For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration. In Weems v. United States, 217 U.S. 349 (1910), the Court extensively chronicled the background of the Amendment, discussing its English antecedents, its adoption by Congress, its construction by this Court, and the in- [p. 19] terpretation of analogous provisions by state courts. Nowhere does Weems even hint that the Clause might regulate not just criminal sentences but the treatment of prisoners. Scholarly commentary also viewed the Clause as governing punishments that were part of the sentence. See T. Cooley, Constitutional Limitations *329 ("It is certainly difficult to determine precisely what is meant by cruel and unusual punishments. Probably any punishment declared by statute for an offence which was punishable in the same way at the common law, could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be punished to the extent and in the mode permitted by the common law for offences of similar nature. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual") (emphasis added). See also 3 J. Story, Commentaries on the Constitution of the United States 750–751 (1833).
Surely prison was not a more congenial place in the early years of the Republic than it is today; nor were our judges and commentators so naive as to be unaware of the often harsh conditions of prison life. Rather, they simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment. Thus, historically, the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life. "[I]t is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined." Stroud v. Swope, 187 F.2d 850, 851–852 (CA9), cert. denied, 342 U.S. 829 (1951). See also Sutton v. Settle, 302 F.2d 286, 288 (CA8 1962) (per curiam), cert. denied, 372 U.S. 930 (1963); United States ex rel. Atterbury v. Ragen, 237 F.2d 953, 954–956 (CA7 1956), cert. denied, 353 U.S. 964 (1957); Banning v. Looney, 213 F.2d 771 (CA10 1954) (per curiam); Sarshik v. Sanford, 142 F.2d 676 (CA5 1944). It [p. 20] was not until 1976—185 years after the Eighth Amendment was adopted—that this Court first applied it to a prisoner's complaint about a deprivation suffered in prison. Estelle v. Gamble, 429 U.S. 97 (1976).

##### B

We made clear in Estelle that the Eighth Amendment plays a very limited role in regulating prison administration. The case involved a claim that prison doctors had inadequately attended an inmate's medical needs. We rejected the claim because the inmate failed to allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id., at 106 (emphasis added). From the outset, thus, we specified that the Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations involving "serious" injury inflicted by prison officials acting with a culpable state of mind. We have since described these twin elements as the "objective" and "subjective" components of an Eighth Amendment prison claim. See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
We have never found a violation of the Eighth Amendment in the prison context when an inmate has failed to establish either of these elements. In Rhodes v. Chapman, 452 U.S. 337 (1981), for instance, we upheld a practice of placing two inmates in a single cell on the ground that the injury alleged was insufficiently serious. Only where prison conditions deny an inmate "the minimal civilized measure of life's necessities," id., at 347, we said, could they be considered cruel and unusual punishment. Similarly, in Whitley v. Albers, 475 U.S. 312 (1986), we held that a guard did not violate the Eighth Amendment when he shot an inmate during a prison riot because he had not acted with a sufficiently culpable state of mind. When an official uses force to quell a riot, we said, he does not violate the Eighth Amendment unless he acts "'maliciously and sadistically for the very purpose of [p. 21] causing harm.'" Id., at 320–321 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (CA2) (Friendly, J.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973)).
We synthesized our Eighth Amendment prison jurisprudence last Term in Wilson, supra. There the inmate alleged that the poor conditions of his confinement per se amounted to cruel and unusual punishment, and argued that he should not be required in addition to establish that officials acted culpably. We rejected that argument, emphasizing that an inmate seeking to establish that a prison deprivation amounts to cruel and unusual punishment always must satisfy both the "objective component... (Was the deprivation sufficiently serious?)" and the "subjective component (Did the officials act with a sufficiently culpable state of mind?)" of the Eighth Amendment. Id., at 298. Both are necessary components; neither suffices by itself.
These subjective and objective components, of course, are implicit in the traditional Eighth Amendment jurisprudence, which focuses on penalties meted out by statutes or sentencing judges. Thus, if a State were to pass a statute ordering that convicted felons be broken at the wheel, we would not separately inquire whether the legislature had acted with "deliberate indifference," since a statute, as an intentional act, necessarily satisfies an even higher state-of-mind threshold. Likewise, the inquiry whether the deprivation is objectively serious would be encompassed within our determination whether it was "cruel and unusual."
When we cut the Eighth Amendment loose from its historical moorings and applied it to a broad range of prison deprivations, we found it appropriate to make explicit the limitations described in Estelle, Rhodes, Whitley, and Wilson. "If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify," Wilson, 501 U.S., at 300 (emphasis in original)—thus, the subjective component. Similarly, because deprivations [p. 22] of all sorts are the very essence of imprisonment, we made explicit the serious deprivation requirement to ensure that the Eighth Amendment did not transfer wholesale the regulation of prison life from executive officials to judges. That is why, in Wilson, we described the inquiry mandated by the objective component as: "[W]as the deprivation sufficiently serious?" Id., at 298 (emphasis added). That formulation plainly reveals our prior assumption that a serious deprivation is always required. Under that analysis, a court's task in any given case was to determine whether the challenged deprivation was "sufficiently" serious. It was not, as the Court's interpretation today would have it, to determine whether a "serious" deprivation is required at all.

##### C

Given Estelle, Rhodes, Whitley, and Wilson, one might have assumed that the Court would have little difficulty answering the question presented in this case by upholding the Fifth Circuit's "significant injury" requirement. Instead, the Court announces that "[t]he objective component of an Eighth Amendment claim is...contextual and responsive to contemporary standards of decency." Ante, at 8 (internal quotation marks omitted). In the context of claims alleging the excessive use of physical force, the Court then asserts, the serious deprivation requirement is satisfied by no serious deprivation at all. "When prison officials maliciously and [p. 23] sadistically use force to cause harm, contemporary standards of decency always are violated." Ante, at 9. Ascertaining prison officials' state of mind, in other words, is the only relevant inquiry in deciding whether such cases involve cruel and unusual punishment. In my view, this approach is an unwarranted and unfortunate break with our Eighth Amendment prison jurisprudence.
The Court purports to derive the answer to this case from Whitley. The sum and substance of an Eighth Amendment violation, the Court asserts, is "'"the unnecessary and wanton infliction of pain."'" Ante, at 5 (quoting Whitley, 475 U.S., at 319). This formulation has the advantage, from the Court's perspective, of eliminating the objective component. As noted above, however, the only dispute in Whitley concerned the subjective component; the prisoner, who had been shot, had self-evidently been subjected to an objectively serious injury. Whitley did not say, as the Court does today, that the objective component is contextual, and that an Eighth Amendment claim may succeed where a prisoner is not seriously injured. Rather, Whitley stands for the proposition that, assuming the existence of an objectively serious deprivation, the culpability of an official's state of mind depends on the context in which he acts. "Whitley teaches that, assuming the conduct is harmful enough to satisfy the objective component of an Eighth Amendment claim, see Rhodes v. Chapman, 452 U.S. 337 (1981), whether it can be characterized as 'wanton' depends upon the constraints facing the official." Wilson, supra, at 303 (emphasis modified). Whether officials subject a prisoner to the "unnecessary and wanton infliction of pain" is simply one way to describe the state of mind inquiry that was at issue in Whitley itself. As Wilson made clear, that inquiry is necessary but not sufficient when a prisoner seeks to show that he has been subjected to cruel and unusual punishment.
Perhaps to compensate for its elimination of the objective component in excessive force cases, the Court simultane- [p. 24] ously makes it harder for prisoners to establish the subjective component. As we explained in Wilson, "deliberate indifference" is the baseline mental state required to establish an Eighth Amendment violation. 501 U.S., at 303. Departure from this baseline is justified where, as in Whitley, prison officials act in response to an emergency; in such situations their conduct cannot be characterized as "wanton" unless it is taken "maliciously and sadistically for the very purpose of causing harm." 475 U.S., at 320–321 (internal quotation marks omitted). The Court today extends the heightened mental state applied in Whitley to all excessive force cases, even where no competing institutional concerns are present. The Court simply asserts that "[m]any of the concerns underlying our holding in Whitley arise whenever guards use force to keep order." Ante, at 6 (emphasis added). I do not agree. Many excessive force cases do not arise from guards' attempts to "keep order." (In this very case, the basis for petitioner's Eighth Amendment claim is that the guards hit him when there was no need for them to use any force at all.) The use of excessive physical force is by no means invariably (in fact, perhaps not even predominantly) accompanied by a "malicious and sadistic" state of mind. I see no justification for applying the extraordinary Whitley standard to all excessive force cases, without regard to the constraints facing prison officials. The Court's unwarranted extension of Whitley, I can only suppose, is driven by the implausibility of saying that minor injuries imposed upon prisoners with anything less than a "malicious and sadistic" state of mind can amount to cruel and unusual punishment.

##### D

The Court's attempts to distinguish the cases expressly resting upon the objective component are equally unconvincing. As noted above, we have required an extreme deprivation in cases challenging conditions of confinement, Rhodes v. Chapman, 452 U.S. 337 (1981). Why should such an ob- [p. 25] jectively serious deprivation be required there and not here? The Court's explanation is that "routine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society.'" Ante, at 9 (quoting Rhodes, supra, at 347). But there is quite a gap between "routine discomfort" and the denial of "the minimal civilized measure of life's necessities" required to establish an Eighth Amendment violation. In the Court's view, then, our society's standards of decency are not violated by anything short of uncivilized conditions of confinement (no matter how malicious the mental state of the officials involved), but are automatically violated by any malicious use of force, regardless of whether it even causes an injury. This is puzzling. I see no reason why our society's standards of decency should be more readily offended when officials, with a culpable state of mind, subject a prisoner to a deprivation on one discrete occasion than when they subject him to continuous deprivations over time. If anything, I would think that a deprivation inflicted continuously over a long period would be of greater concern to society than a deprivation inflicted on one particular occasion.
The Court's attempted distinction of Estelle is also unpersuasive: "Because society does not expect that prisoners will [p. 26] have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Ante, at 9. In my view, our society similarly has no expectation that prisoners will have "unqualified" freedom from force, since forcibly keeping prisoners in detention is what prisons are all about. Why should the seriousness of injury matter when doctors maliciously decide not to treat an inmate, but not when guards maliciously decide to strike him?
At bottom, of course, there is no conclusive way to refute the Court's assertions about our society's "contemporary notions of decency." That is precisely why this Court has long insisted that determinations of whether punishment is cruel and unusual "should be informed by objective factors to the maximum possible extent," Rhodes, supra, at 346 (internal quotation marks omitted).
The Court attempts to justify its departure from precedent by saying that if a showing of serious injury were required, "the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Ante, at 9. That statement, in my view, reveals a central flaw in the Court's reasoning. "[D]iabolic or inhuman" punishments by definition inflict serious injury. That is not to say that the injury must be, or always will be, physical. "Many things—beating with a rubber truncheon, water torture, electric shock, incessant noise, reruns of 'Space 1999'—may cause agony as they occur yet leave no enduring injury. The state is not free to inflict such pains without cause just so long as it is careful to leave no marks." Williams v. Boles, 841 F.2d 181, 183 (CA7 1988). Surely a prisoner who alleges that prison officials tortured him with a device like the notorious "Tucker Telephone" described by Justice Blackmun, ante, at 14, has alleged a serious injury. But petitioner has not alleged a deprivation of this type; the injuries he has alleged are entirely physical and were found below to be "minor."
Furthermore, to characterize the serious injury requirement as "arbitrary" is not to explain why it should be eliminated in this particular context while it remains applicable to all other prison deprivations. To be sure, it will not always be obvious which injuries are "serious." But similarly, it will not always be obvious which medical needs are "serious," or which conditions of confinement deny "the minimal civilized measure of life's necessities." These determinations are, however, required by the Eighth Amendment, which prohibits only those punishments that are "cruel and unusual." As explained above, I think our precedents clearly establish that a prisoner seeking to prove that he has been subjected to "cruel and unusual" punishment must always show that he has suffered a serious deprivation.
If the Court is to be taken at its word that "the unnecessary and wanton infliction of pain" upon a prisoner per se amounts to cruel and unusual punishment, the implications of today's opinion are sweeping. For this formulation replaces the objective component described in our prior cases with a "necessity" component. Many prison deprivations, however, are not "necessary," at least under any meaningful definition of that word. Thus, under today's analysis, Rhodes was wrongly decided. Surely the "double celling" of inmates was not "necessary" to fulfill the State's penal mission; in fact, the prison in that case had been designed for individual cells, but was simply overcrowded. 452 U.S., at 343. We rejected the prisoners' claim in Rhodes not because we determined that double celling was "necessary," but because the deprivations alleged were not sufficiently serious to state a claim of cruel and unusual punishment. After today, the "necessity" of a deprivation is apparently the only relevant inquiry beyond the wantonness of official conduct. This approach, in my view, extends the Eighth Amendment beyond all reasonable limits. [p. 28]

#### II

Today's expansion of the Cruel and Unusual Punishments Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation. To reject the notion that the infliction of concededly "minor" injuries can be considered either "cruel" or "unusual" punishment (much less cruel and unusual punishment) is not to say that it amounts to acceptable conduct. Rather, it is to recognize that primary responsibility for preventing and punishing such conduct rests not with the Federal Constitution but with the laws and regulations of the various States.
Petitioner apparently could have, but did not, seek redress for his injuries under state law. Respondents concede that [p. 29] if available state remedies were not constitutionally adequate, petitioner would have a claim under the Due Process Clause of the Fourteenth Amendment. Cf. Davidson v. Cannon, 474 U.S. 344, 348 (1986); Hudson v. Palmer, 468 U.S. 517, 532–534 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981). I agree with respondents that this is the appropriate, and appropriately limited, federal constitutional inquiry in this case.
Because I conclude that, under our precedents, a prisoner seeking to establish that he has been subjected to cruel and unusual punishment must always show that he has suffered a serious injury, I would affirm the judgment of the Fifth Circuit.

#### Notes

* ↑ . This point is pure dictum, because the force here was surely not de minimis.
* ↑ . While granting petitioner relief on his Eighth Amendment claim, the Court leaves open the issue whether isolated and unauthorized acts are "punishment" at all. This will, of course, be the critical question in future cases of this type. If we ultimately decide that isolated and unauthorized acts are not "punishment," then today's decision is a dead letter. That anomaly simply highlights the artificiality of applying the Eighth Amendment to prisoner grievances, whether caused by the random misdeeds of prison officials or by official policy.
* ↑ . I do not believe that there is any substantive difference between the "serious deprivation" requirement found in our precedents and the Fifth Circuit's "significant injury" requirement.
* ↑ . Moreover, by distinguishing this case from "conditions" cases, the Court resurrects a distinction that we have repudiated as "not only unsupportable in principle but unworkable in practice." Wilson v. Seiter, 501 U.S. 294, 299, and n. 1 (1991). When officials use force against a prisoner, whether once or every day, that is a "condition" of his confinement. It is unwise, in my view, to make the very existence of the serious deprivation requirement depend on whether a particular claim is characterized as one challenging a "condition" or one challenging a "specific act." Cf. McCarthy v. Bronson, 500 U.S. 136, 139, 143 (1991) ("[C]onditions of confinement" under 28 U.S.C. §636(b)(1)(B) include not only challenges to ongoing prison conditions but also challenges to "isolated incidents" of excessive force, in part because "the distinction between cases challenging ongoing conditions and those challenging specific acts of alleged misconduct will often be difficult to identify").
* ↑ . According to respondents:
   "Louisiana state courts are open to prisoners for the purpose of suing prison personnel who have caused them unjustified wrongs. For example, see Parker v. State, 282 So.2d 483, 486–87 (La. 1973), cert. denied, 414 U.S. 1093 (1973); Anderson v. Phelps, 451 So.2d 1284, 1285 (La. Ct. App. 1st Cir. 1984); McGee v. State, 417 So.2d 416, 418 (La. Ct. App. 1st Cir.), writ denied, 420 So.2d 871 (La. 1982); Neathery v. State, 395 So.2d 407, 410 (La. Ct. App. 3d Cir. 1981); Shields v. State Through Dep't of Corrections, 380 So.2d 123 (La. Ct. App. 1st Cir. 1979), writ denied, 382 So.2d 164; Craft v. State, 308 So.2d 290, 295 (La. Ct. App. 1st Cir.), writ denied, 319 So.2d 441 (La. 1975), cert. denied, 423 U.S. 1075, 96 S. Ct. 859, 47 L. Ed. 2d 84 (1975); Lewis v. Listi, 377 So.2d 551, 553 (La. Ct. App. 3d Cir. 1979); Bastida v. State, 269 So.2d 544, 545 (La. Ct. App. 1st Cir. 1972); Adams v. State, 247 So.2d 149, 151 (La. Ct. App. 1st Cir. 1971); St. Julian v. State, 98 So.2d 284 (La. Ct. App. 1st Cir. 1957); Nedd v. State, 281 So.2d 131, 132 (La. 1973), cert. denied, 415 U.S. 957, 94 S. Ct. 1484, 39 L. Ed. 2d 572 (1974); Mack v. State, 529 So.2d 446, 448 (La. Ct. App. 1st Cir. 1988), writ denied, 533 So.2d 359 (La. 1988); Walden v. State, 430 So.2d 1224 (La. Ct. App. 1st Cir. 1983), writ denied, 435 So.2d 430 (La. 1983); [p. 29] White v. Phelps, 387 So.2d 1188 (La. Ct. App. 1st Cir. 1980); Hampton v. State, 361 So.2d 257, 258 (La. Ct. App. 1st Cir. 1978); Davis v. State, 356 So.2d 452, 454 (La. Ct. App. 1st Cir. 1977); Betsch v. State, 353 So.2d 358, 359 (La. Ct. App. 1st Cir. 1977), writ refused, 354 So.2d 1389 (La. 1978); Williams v. State, 351 So.2d 1273 (La. Ct. App. 1st Cir. 1977); Jones v. State, 346 So.2d 807, 808 (La. Ct. App. 1st Cir.), writ refused, 350 So.2d 671 (La. 1977); Walker v. State, 346 So.2d 794, 796 (La. Ct. App. 1st Cir.), writ denied, 349 So.2d 879 (La. 1977); Raney v. State, 322 So.2d 890 (La. Ct. App. 1st Cir. 1975); and Bay v. Maggio, 417 So.2d 1386 (La. Ct. App. 1st Cir. 1982).” Brief for Respondents 42–43, n. 38.
Petitioner has not disputed the existence or adequacy of state-law remedies for his injuries.