Category Archives: 8th Amendment

New Difficulties in Executions Prompt Constitutional Questions

New Difficulties in Executions Prompt Constitutional Questions

By Alex Darby

                The death penalty is currently facing renewed scrutiny in the United States as the drugs previously used for lethal injection become increasingly difficult to obtain. States that still employ the death penalty have scrambled to find alternative methods of killing those on death row, raising new questions about the constitutionality of the death penalty.

The death penalty has become increasingly rare in most Western countries. Many of the companies that produce the drugs used in lethal injections are based in European countries that have banned the death penalty.[1] The drugs most commonly used in lethal injections were previously pentobarbital and sodium thiopental; however, upon increased public outcry that the drugs were used in executions, the companies that produced these drugs have either stopped production or sell the drugs with the strict prohibition that they cannot be used in executions.[2] For example, on learning that the drug propofol would be used for executions in Missouri, the German manufacturer of the drug requested the return of the drugs and threatened European Union sanctions. The governor postponed the execution of a man on death row for fear that the use of propofol would threaten the supply of the drug needed for hospitals.[3] The German company threatened the use of European Union sanctions and requested that the drug be returned.[4] Alabama has been forced to postpone executions because it has run out of pentobarbital, the initial drug used in the state’s executions.[5] Further, even states that may currently have a stockpile of the drugs will face a shortage when the drugs expire and are no longer usable.

To deal with the shortage of previously used drugs, states are turning to untested drugs from compound pharmacies that are “produced in small amounts on special order without strict regulatory oversight and have been linked to contamination in the past.”[6] This creates a significant issue as the manner of death that these drugs produce is not always clear. Dennis McGuire was executed by the state of Ohio using an untested combination of drugs.[7] The execution was the longest recorded execution in Ohio history, taking nearly 24 minutes.[8] McGuire spent roughly 10 minutes gasping and snorting before he finally died.[9] A properly performed lethal injection takes between 4 and 5 minutes to be completed.[10] These seemingly painful side effects and increasing secrecy around the sources for the drugs raise new Due Process and Eighth Amendment issues.

Some states, such as Oklahoma have enacted laws that keep the source of the drugs and the types of drugs used secret, even from the court itself.[11] The Alabama legislature is currently considering a law similar to the Oklahoma statute.[12] Proponents of the law argue that it is important to keep this information secret to ensure suppliers are willing to continue to provide the drugs.[13] However, an Oklahoma judge recently ruled that such secrecy is unconstitutional.[14] Proponents of the laws argue that the secrecy is required to ensure drug companies will continue to supply the needed drugs while opponents argue that without knowing what the lethal cocktail is composed of, there is no way ensure that the execution does not violate the Eighth Amendment prohibition on cruel and unusual punishment.[15] An Oklahoma judge held that, because of the potential Eighth Amendment risks, the secrecy surrounding the composition of the drugs created a Due Process issue that rendered it unconstitutional.[16]

The Eighth Amendment sets out a prohibition on cruel and unusual punishment. The Supreme Court has held varying positions on the constitutionality of the death penalty since the 1970’s. In 1972, the Court struck down Georgia’s death penalty statutes and with it similar statutes in a majority of states.[17] The Court changed course just four years later, holding that the death penalty is not per se unreasonable.[18] Under this reasoning, the resulting death is not unconstitutional, but the manner in which the punishment is carried out may be.

When the Court has recently reviewed cases involving lethal injection, the Court held that the Eighth Amendment prohibits methods that create an objectively intolerable risk of harm.[19] The risk of some pain is not sufficient, as in Baze v. Rees the court upheld the method lethal injection because they were alleged to cause severe pain only if administered improperly.[20] The issue that arises in the case of drugs from compound pharmacies is that these drugs are often untested- including the injection used in the execution of Dennis McGuire in Ohio. There is no way to know whether the resulting death will be painful or not until the inmate is lying on the table gasping. The attempt by various states to shroud the drugs used in secrecy creates an even more significant risk. There is no way for an attorney to argue that the drugs pose an Eighth Amendment violation, as there is no way to even speculate the effects a drug may have if the type of drugs to be used is untested and its source unknown.

While the difficulty procuring these drugs is causing significant difficulties for some states, it provides a new opportunity to discuss the death penalty, and whether it is still aligned with the views of the majority of the country. The Court has long tied Eighth Amendment analysis to evolving standards of decency.[21] The United States is one of the few Western countries that still use capital punishment. Further, the majority of executions in the United States occur in only a handful of states. [22] The death penalty has a long history in this country; however, the methods formerly used- such as hangings or the electric chair- would make many uncomfortable today. The idea that lethal injection is a “humane” means to end human life is now being challenged as new drugs produce accounts of deaths that seem far from painless. It is time that the US again raise its standard of decency, and prohibit this punishment altogether.


[1] See Facts About the Death Penalty, Death Penalty information Center,; The Council of Europe,

[2] Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013),

[3] Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013),

[4] Id.

[5] Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.),

[6]Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014),

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Kyle Whitmore, While Alabama Legislature Considers Execution Secrecy Bill, Oklahoma Judge Rules Similar Laws Unconstitutional, AL.Com (Mar. 26, 2014, 3:25 p.m.),

[12]  Id.

[13] See Lewis, supra note 3.

[14] Whitmore, supra note 11.

[15] Eckholm, supra note 6.

[16] Id.

[17] Furman v. Georgia, 408 U.S. 236, 240 (1972).

[18] Gregg v. Georgia, 428 U.S. 153, 179 (1976).

[19] Baze v. Rees, 553 U.S. 35, 50 (2008).

[20] Id. at 54-55.

[21] Roper v. Simmons, 543 U.S. 551, 561 (2005).

[22] See Facts About the Death Penalty, Death Penalty information Center,

“Deliberate Indifference” to Prison Sex Abuse Sets Stage for 8th Amendment Challenge

“Deliberate indifference” to prison sex abuse sets stage for 8th Amendment challenge

by Tiffany Ray

If it’s true that the measure of civilization in a society can be judged by entering its prisons,[1] then Alabama is a barbaric place. The proliferation of sexual misconduct, coercion, vulgarity and mistreatment that constitutes life at the Julia Tutwiler Prison for Women in Wetumpka, Ala., is by now well known: A 36-page report by the U.S. Department of Justice, released early this year and widely reported in the press, documents a 20-year history of “unabated staff-on-prisoner sexual abuse and harassment” that has left the women incarcerated there to “universally fear for their safety.”[2]

In its report, which is the result of an extensive investigation, the DOJ asserts that, for nearly two decades, guards at Tutwiler have raped and sodomized inmates and coerced them into performing oral sex.[3] They have forced them to submit to sexual abuse in order to receive basic necessities such as tampons or laundry service.[4] They have watched the women as they take off their clothes, shower, and use the toilet, and they have subjected them to sexually explicit verbal abuse.[5] Allegations of such abuse are investigated superficially, if at all, and women who have reported such allegations have been subjected to further abuse by guards, to segregation, or to lie detector tests.[6]

The DOJ asserts that the state has violated (and presumably continues to violate) the Eighth Amendment rights of Tutwiler prisoners by “failing to protect [them] from harm due to sexual abuse and harassment from correctional staff.”[7] The Eighth Amendment provides board protection to prisoners from “cruel and unusual punishment” by government, but what are the contours of that right?

The Supreme Court has found that the test for what constitutes a cruel and unusual condition is not static, but rather drawn “from the evolving standards of decency that mark the progress of a maturing society.”[8] Surely what is happening at Tutwiler Prison is indecent by any standard. According to the Court, the conditions “must not involve the wanton and unnecessary infliction of pain, nor . . . be grossly disproportionate to the severity of the crime warranting imprisonment.”[9] The Constitution “’does not mandate comfortable prisons,’ (citation omitted), but neither does it permit inhumane ones.”[10] Conditions may be “restrictive” or even “harsh” and still be Constitutional.[11]  However, “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”[12]

In Farmer v. Brennan, one of three cases cited by the DOJ to support its assertion of a constitutional violation, the Supreme Court determined that deliberate indifference is shown when an official was “subjectively aware of the risk.”[13] In that case, a transsexual prisoner who was biologically male and projected feminine characteristics was raped and beaten after being placed in the general male population of a high-security prison.[14] Vacating and remanding a lower-court ruling for defendants in the case, the Court found that a prison official could be held liable for denying a prisoner humane confinement conditions if the official “knows that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.”[15]

The Court determined that deliberate indifference of prison officials equated to the subjective recklessness requirement of criminal law; something more than negligence but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”[16] The Court said prison officials need not be aware of a specific risk from a specific source: “. . . [I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.”[17]

In Farmer, the Court said the Eighth Amendment both constrains the actions of prison officials – preventing them, for example, from using excessive force against a prisoner – and also imposes duties on them to provide “humane conditions of confinement.”[18] Specifically, officials must “ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take ‘reasonable measures to guarantee the safety of the inmates.’”[19] In Helling v. McKinney, the Court found that deliberate indifference to conditions that pose a serious risk to future health violates Eighth Amendment standards, even when no harm has yet occurred.[20] Prisoners have found relief from the courts from exposed electrical wiring, exposure to contagious diseases from other inmates, and, in Helling, from constant exposure to secondhand smoke.[21]

From such a footing, it does not seem far to go to determine that inmates deserve relief from the “universal fear” of sexual abuse and retaliation by their jailers. No one should live day to day with the fear that they might be the next target for abuse, and particularly in a place that is designed to provide them no means of escape. Just the threat of such abuse is corrosive and debilitating, particularly for the women at Tutwiler who, the DOJ says, are already more vulnerable because they are more likely to have been a victim of abuse prior to incarceration.[22] Surely the state has a duty to protect inmates from such treatment.

Moreover, it appears from the DOJ report that state officials have had notice of sex-abuse problems at Tutwiler since at least 1995, when the agency reported it as part of an investigation into the prison’s treatment of mental health issues.[23] More recent evidence was available as well: A 2007 DOJ report of sexual assault in prisons found that Tutwiler was among the worst offenders, ranking 11th out of 146 prison facilities for reports of sexual assault.[24] A report by the Montgomery-based Equal Justice Initiative in 2012 found that conditions had not improved since 2007 and that “pervasive sexual misconduct” continued.[25] It seems clear that the state knew women at Tutwiler were being sexually abused and yet failed to act to prevent it.

News of poor prison conditions in Alabama is hardly a shock, but the level of depravity and disregard apparently at work at Tutwiler is particularly galling. State officials have attempted to defend the indefensible; Kim Thomas, Commissioner of the Alabama Department of Corrections, for example, has said the DOJ’s findings were “off-base,” and prison conditions were not unconstitutional, though he declined to talk in specifics.[26]  Thomas said the department had requested an independent examination by the National Institute of Corrections, part of the DOJ, in 2012 following the Equal Justice Initiative reports of sexual abuse at Tutwiler and has been working to implement changes since then.[27] Among the improvements cited by officials are efforts to recruit more female prison staff at Tutwiler and train prison staff on proper management of female inmates, and plans to install security cameras.[28]

The fact that such improvements are not already an integral part of Tutwiler management would suggest a level of long-term apathy that casts doubt on the ability of state officials to take meaningful action now. Clearly, the state has been on notice for a long time that rights violations were occurring – or at the very least, were likely occurring – at Tutwiler. And yet the “proactive” steps cited by officials to curb such abuses began only a couple of years ago, and have apparently gotten nowhere. Meanwhile, Alabama prisons have been perennially underfunded, and there is no political gain for legislators in advocating an appropriation of additional resources for the benefit of convicted criminals. Thus, there is little hope of any drastic commitment by the Legislature to push through needed reforms.

Fortunately for the inmates of Julia Tutwiler Prison, the DOJ investigation appears far from over. The pervasiveness of sex-abuse allegations has led the DOJ to expand its examination to other, related areas: excessive use of force, constitutionally inadequate conditions of confinement, constitutionally inadequate medical and mental health care, and discriminatory treatment based on national origin, sexual orientation, and gender identity.[29] The DOJ report also included a litany of reforms the agency says must be implemented to curb sexual misconduct by prison staff, as well as the threat of a legal action brought by the Attorney General if they are not.[30]

[1] This statement is often attributed to Fyodor Dostoyevsky. See, e.g., Fyodor Dostoyevsky quotes,, available at

[2] Letter from Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, to Hon. Robert Bentley, Governor of Alabama (Jan. 17, 2014),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

[9]  Id. at 347.

[10] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[11] Rhodes, 452 U.S. at 347.

[12] Farmer, 511 U.S. at 829.

[13] Id. at 828-29.

[14] Id. at 829-30.

[15] Id. at 848.

[16] Id. at 835.

[17] Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25 (1993)).

[18] Id. at 832.

[19] Id.

[20] 509 U.S. 25, 33 (1993).

[21] Id. at 34.

[22] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[23] Id.

[24] Id.

[25] Id.

[26] Mike Cason, Department of Justice finds conditions at Julia Tutwiler Prison to be unconstitutional,, Jan. 17, 2014,

[27] Id.

[28] Id.

[29] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[30] Id.

Solitary Confinement and the Eighth Amendment

Solitary Confinement and the Eighth Amendment

By: Alex Darby

Herman Wallace died of cancer on October 4th, just days after being released from prison in Angola, Louisiana, where he had been held in solitary confinement for the last forty-one years of his life.[1] Convicted of the murder of a prison guard, Wallace was released after a federal judge determined his indictment was constitutionally flawed because no women were included in the jury.[2] While in solitary confinement, he worked on projects, such as designs for his dream home.[3] Wallace stated this work “helped me maintain what little sanity I have left to maintain my humanity and dignity.”[4] Unfortunately for many in the prison system, maintaining dignity and sanity is impossible when subjected to solitary confinement, an issue with serious Eighth Amendment implications.

Prisoners held in solitary confinement are typically isolated in an eight by ten foot cell between twenty-two and twenty-four hours per day.[5] While the number of inmates held in solitary confinement is difficult to determine, studies estimate 25,000 are held in maximum security “supermax” facilities where solitary confinement is common, and up to 80,000 inmates are held in some type of segregated housing, separate from the general prison population.[6] Prisoners may be placed in special, or segregated housing units for administrative or disciplinary reasons, with harsher restrictions imposed on inmates segregated for disciplinary reasons.[7]

These conditions result in various health issues that range from acute to severe, worsening with longer sentences. While psychological problems are most common, physiological symptoms also appear in prisoners held in solitary confinement.[8] These symptoms include heart palpitations, insomnia, joint pain, and worsened pre-existing conditions.[9] Psychological impacts can be even more profound. Prisoners commonly show a range of symptoms stemming from anxiety, depression, cognitive disturbances, paranoia, and psychosis.[10] A prisoner at a California supermax prison noted the impact of solitary confinement on inmates, stating:

I have seen inmates lose their mind completely because of the sound of a light where they are yelling at the light, cursing at the light, believing that for some reason the [authorities] planted some kind of noise inside the light purposely…and so the inmates that ain’t strong minded, don’t have something to hang on to, the light, the sound of the door, can make them lose their mind… I found it strange, you know, how can a grown man, a very big, grown man, break down to a light. But that’s what [that place] can do[11]

The harsh reality for many of these prisoners is that they already suffer from some type of mental illness, and this is only worsened by their stay.[12] There is a significantly higher percentage of inmates with mental illness in segregated housing units that in the general prison population.[13] These psychological symptoms often result in self-harm.[14] In one California supermax prison, nearly 70% of the suicides committed in the prison were committed by inmates in segregated housing units.[15]

Solitary confinement is a relatively common practice in supermax prisons throughout the United States.[16] Prisoners have asserted claims attacking the conditions of solitary confinement as a violation of the Eighth Amendment prohibition against cruel and unusual punishment.[17] These challenges face significant setbacks. Circuit courts have held that solitary confinement is not necessarily cruel and unusual punishment.[18] Under these rulings, the punishment does not in itself violate the Eighth Amendment, but could potentially be cruel and unusual if there are other problems present.[19]

In Eighth Amendment challenges, the Supreme Court has held that prison conditions may constitute cruel and unusual punishment when there is “a substantial risk of serious harm” and prison officials show “deliberate indifference.”[20] The issue arising under these cases is that the “serious harms” often recognized by the court typically involve physical risks, not psychological ones.[21] To successfully argue a serious harm, an inmate must show he has been deprived of “a basic human need” and courts are hesitant to accept mental health as such.[22] This is especially clear in the Prison Litigation Reform Act, which prevents a prisoner from bringing suit – even an Eighth Amendment suit – for mental or emotional injury alone.[23] It is far easier to show physical signs of abuse, but this does not diminish the harm that can potentially be done to the mental health of incarcerated individuals in solitary confinement.

Individuals have previously been successful in bringing Eighth Amendment claims against conditions in solitary confinement, but the rulings often focus on the physical conditions of confinement rather than the solitary confinement itself.[24]

The Supreme Court has repeatedly asserted that the measure of the Eighth Amendment is based on “the evolving standard of decency that marks the progress of a maturing society.”[25] The court’s views on solitary confinement do not seem to be evolving along with the views of society. The focus on physical harm, while minimizing psychological harms inflicted on inmates, runs directly counter to society’s changing views on mental health. With mental health rapidly changing from a taboo topic to one of increased public focus, society clearly recognizes that mental health is often as important as physical health. Psychological harms are very real, and in many cases cause inmates to seek desperate measures, including taking their own lives. While a complete prohibition on solitary confinement is arguably unworkable in the prison system, the court system should have a way for prisoners to challenge solitary confinement based on its psychological impact alone, especially when solitary confinement persists for a substantial length of time.

[1] John Schwartz, Herman Wallace, Freed After 41 Years in Solitary, Dies at 71, N.Y. Times  (Oct. 4, 2013),

[2] Id.

[3] Id.

[4] Id.

[5] Solitary Confinement Fact Sheet, National Alliance on Mental Illness, 2 (Last accessed Oct. 10)

[6] Jean Cassella & James Ridgeway, How Many Prisoners Are in Solitary Confinement in the United States?, Solitary Watch (Feb. 1, 2012),

[7] Special Housing Units, Federal Bureau of Prisons, 2, 8-10 (Jul. 29, 2011),

[8]Sharon Shalev, A Sourcebook on Solitary Confinement, SolitaryConfinement.Org 15 (2008) (alteration in original),

[9] Id.

[10] Id.

[11] Id. at 14.

[12] Solitary Confinement Fact Sheet, supra note 5.

[13] Id.

[14] Shalev, supra note 6, at 17.

[15] Id.

[16] John F. Cockrell, Solitary Confinement: The Law Today and the Way Forward, 37 Law & Pshychol. Rev. 211, 216 (20012-2013).

[17] Id. at 215.

[18]Hawkins v. Hall, 644 F.2d 914, 917 (1st Cir. 1981); Sweet v. S.C. Dept. of Corr. 529 F.2d 854, 861 (4th Cir. 1975) Burns v. Swenson, 430 F.2d 771, 777 (8th Cir. 1970); Ford v. Bd. of Managers of N. J. State Prison, 407, F.2d 937, 940 (3d Cir. 1969).

[19] Id.

[20] Farmer v. Brennan, 511 U.S. 825, 828 (1994)

[21] See, Cockrell, supra note 16, at 216-18.

[22] Christine Rebman, The Eighth Amendment and Solitary Confinement: The Gap in Protection from Psychological Consequences, 49 DePaul L. Rev.567, 603 (1999)

[23] Cockrell, supra note 16, at 17.

[24] See, e.g., McCray v. Sullivan, 509 F.2d 1332, 1337 (5th Cir. 1975)

[25] Trop v. Dulles, 356 U.S. 86, 100-01 (1958).

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