First revision:

I'm sorry to have taken so long to get to this, I just got back to the US from traveling abroad (where there was unexpectedly poor internet access). Below is the first version of my rewrite--I had to guesstimate many of the facts because I couldn't look anything up online. I'm in the process of fact-checking and revising still, and hope to have a [more] final version up in a few days.

The Supreme Court has traditionally interpreted the 8th Amendment very narrowly. Lack of agreement over what punishment means and how broad the scope of 8th Amendment is, made change difficult to institute, especially with regard to prison conditions. Conditions are harsh, but shouldn’t they be? Does punishment necessarily stop at confinement—is that adequate? It depends on what theory of punishment one ascribes to, whether it is supposed to be societal payback, a chance for rehabilitation, or simply the consequences of breaking a crime. Choosing a theory of punishment is a fundamental part of deciding what ‘cruel and unusual means.’ Very few challenges based on the 8th Amendment have succeeded, often because there is no standard, theoretical or in practice, for what punishment ought to be. However, very recently, the Court has ruled that life imprisonment for minors who have not committed homicide is unconstitutional under the 8th Amendment. Although this is an indication that the Court is willing to hear arguments based on the 8th Amendment, it is still a long way from dealing with conditions of imprisonment. But, the over burdened prison system and their accompanied expense is a growing impetus to re-visit the topic.

The four main categories of penal theories are utilitarian, retributive, rehabilitative, and consequentialist. Retributivists focus on what the criminal has cost society by the crime he has committed, and believe that punishment should be proportional to the crime. In contrast, rehabilitationalists believe that prison should be geared towards reforming the criminal. Utilitarianists believe that punishment should be administered in the way that is most useful to society—particularly in terms of their deterrence function. Finally, consequentialists, which the U.S. states mostly follow, believing in a straightforward action-and-consequence system.

[In light of the word limit, I won’t go into a discussion of the pros and cons of each theory. My discussion will instead be limited to its impact on prison reform.]

For the utilitarian theory of punishment, the poor condition of prisons is unlikely to be a problem. In fact, within limits of decency, it seems that the poorer the condition, the stronger deterrence effect, assuming the general public knows of the conditions. On the other end of the spectrum, those that subscribe to the rehabilitative theory would find the violent conditions in prison highly problematic because not only are they not conducive to any therapeutic effect prison might have, but actually create ‘hardened criminals’ out of those who were only doing time for petty crime.

The two left, retributivists and consequentialists, are the trickiest to analyze. For retributivists, the key issue would be whether the terrible conditions in prison have been taken account of when the sentence was handed down. If the overall length and condition of the prison is proportional to the harm done by the crime committed, then that would be acceptable. (The practicality of this is rather dubious, especially when most judges won’t officially acknowledge the conditions in prison to be an extra punishment.) For consequentialists, the issue rests in whether or not the criminal had fair notice of these conditions before he broke the law.

Incarceration, in most states, has a simple stated goal. It removes individuals, who have shown themselves prone to violent behavior, from society. Harsh conditions are not per se problematic because although there is nothing inherent in the goal of isolating danger, that says criminals must have decent quarters within prison, even if they are confined. However, penal theory as applied is never purely retributive, or rehabilitative; different goals and justifications are mixed together. There is often a rehabilitative undercurrent to penal law in most states, and this most dramatically demonstrated in Pennsylvania. On the other hand, states like California are strictly retributive, which may explain their explosion in incarceration rates and the subsequent toll it took on their prison system.

The 8th Amendment has long been treated as a guard against atrocious forms of punishment. The Supreme Court, until very recently, did not believe that it could extend to the length of prison terms, even when it was grossly disproportionate. Recently, the Court relied on the 8th Amendment when it ruled that minors who have not committed a homicide may not be sentenced to life in prison. However, although this does show a surprising trend in vesting some bite in the 8th Amendment, there are several reasons why the Court might be reluctant to apply it to prison terms.

The first issue is that the 8th Amendment only protects citizens against punishment as sanctioned by the state. In reality, it is an easy case to make that when prison guards knowingly disregard brutal treatment of one prisoner by another, the state is implicitly sanctioning it. However, the ability (or lack thereof) to distinguish true and inadvertent ignorance of prison violence will mean that the government will always be violating the 8th Amendment when one prisoner acts against another. It would make the government an insurer of private action, and given the precarious balance of control and chaos in most prisons, the Court will be unlikely to go down this path, at least without clear reform.

And yet, why shouldn’t the government insure against undue unsanctioned violence, even if it is not directly at the hands of the state? When a prisoner is sentenced to prison, he gives up his freedom and his ability to control his own safety. He submits (willingly or not) to the authority of the state to contain him, but he does not submit to other prisoners or to conditions that are not inherent in imprisonment. It might be argued that the government has assumes a duty to make sure that he will only be subject to the punishment that law prescribes.

But the question of notice now comes in: how many potential criminals out there do not know that prison is a rough place, that inmate brutality and rape is common? When individuals commit a crime, if they do in fact “calculate” the benefits and the risks and then go ahead with it, do they factor in the possibility of prison violence? If they do, it might be that they’ve taken the risk and the conditions in prison are part and parcel of them. However, it still remains that the poor conditions are not legally prescribed and certainly not a part of the penal code.