Cruel and Unusual Punishment for Non-Smokers


Alexandria, Virginia. -- These are banner days for non-smokers. To the amazement of many, smoking was prohibited at the Orioles' new stadium, even though it is open-air. Then, the Environmental Protection Agency announced that second-hand smoke is a human carcinogen, confirming that it poses a significant health risk to non- smokers.

Finally, the Supreme Court last week heard the case of Helling v. McKinney, in which a Nevada prisoner claims that being exposed to cigarette smoke is cruel and unusual punishment.

The prisoner, William McKinney, is serving a life sentence for his third felony -- beating to death a man named Lloyd Booker. A non-smoker, McKinney was forced to share an 8-foot by 6-foot cell with an inmate who smoked five packs of cigarettes a day. McKinney subsequently developed headaches, chest pains and nasal irritation, which he claimed were due to cigarette smoke. McKinney filed a lawsuit arguing that such prison conditions violate the Eighth Amendment.

According to that amendment, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

An example of constitutional plagiarism, the Eighth Amendment was taken word for word from the English Bill of Rights of 1689. But when the Eighth Amendment was being debated in Congress, one legislator took exception to the language. He argued: "It is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off, but are we in future to be prevented from inflicting these punishments because they are cruel?"

In determining exactly which punishments are "cruel and unusual," the Supreme Court has ruled that the phrase "must draw its meaning from evolving standards of decency that mark the progress of a maturing society." Thus, punishments permissible when the Eighth Amendment was ratified in 1791, such as whippings and pillories, are impermissible today.

The court has also ruled that inhumane prison conditions constitute cruel and unusual punishment under the Eight

Amendment, but that the Constitution "does not mandate comfortable prisons." Therefore, prisoners must prove not only that their conditions are inhumane, but also that prison officials acted with "deliberate indifference" to prisoners' well-being.

In the McKinney case, Nevada prison officials argue that the potential harm to non-smoking prisoners is speculative and that its judicial system might be flooded with lawsuits by inmates challenging other potential health risks, such as their high-cholesterol prison diet. Furthermore, says Anne B. Cathcart, deputy attorney general of Nevada, cigarettes are used "to motivate, calm and control inmates."

According to Nevada, prohibiting smoking would be a security risk: Imagine a population of potentially violent people in full-blown nicotine withdrawal. And it says that to satisfy McKinney and other objectors, it might be necessary to mix prisoners who might be threats to each other's physical safety.

But McKinney argues that prolonged exposure to second-hand smoke may well be a death sentence, something Nevada refused to impose directly. The Supreme Court may decide to dismiss the case altogether as moot, because McKinney has since been transferred to a different prison where he has a non-smoking cellmate. But for other non-smoking prisoners across the country, the court's decision may literally be life or death.

It's hard to be sympathetic about the rights of non-smoking murderers, particularly when the Constitution does not protect the rights of non-smokers generally. Why should society care whether William McKinney, or people like him, have to endure second-hand smoke as a condition of imprisonment? After all, he didn't care about the rights of the man he murdered.

The answer is that the Eighth Amendment protects us as a society, even more than it protects criminals like William McKinney. The amendment reflects, "the better angels of our nature," who know that how a society inflicts punishment is the best measure of its stage of civilization.

The Eighth Amendment prevents us from being cruel when we are most tempted to do so, when someone "deserves" it. The amendment forces us to be civilized when what we most want is revenge. Sometimes that means we have to listen when the William McKinneys of the world talk about their rights. But that's also how we avoid becoming like them.

Linda R. Monk is the author of The Bill of Rights: A User's Guide, which won the American Bar Association's Gavel Award.

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