Document Type


Publication Date



For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights statutes in Monroe v. Pape. Still, Monroe v. Pape was decided in 1961, and it was not until 15 years later, in Estelle v. Gamble,2 that the Eighth Amendment's prohibition of cruel and unusual punishment came to be used as a tool for improving prison conditions.

Today, with federal court dockets full of cases alleging that conditions of confinement violate the Eighth Amendment-particularly with respect to overcrowding-it is easy to forget that, prior to Estelle, the Eighth Amendment had been applied by the Court only to cases in which a mode of punishment, usually a method of execution, was at issue. Estelle thus redefined the constitutional concept of "punishment" by bringing the protections of the Cruel and Unusual Punishments Clause into the modern prison.

Despite the noble goals of Estelle, however, the decision is fundamentally flawed and has had a detrimental impact upon the very prisoners it was intended to protect. The problems stem from-the Court's failure to take sufficient account of the realities of the modern prison. Imprisonment involves not only the fact and duration of confinement, but also the conditions under which that confinement occurs. Prisons are literally miniature cities in which births, deaths, and even marriages occur. Prisons have their own governing structure, police force, industries, schools, medical facilities, housing complexes, and cemeteries.

Not all of these aspects of daily prison life fit comfortably within notions of "punishment." Indeed, much of the daily routine of prison life is virtually identical to that of other large, government-run, residential institutions such as mental health hospitals and foster care facilities, neither of which can be said to be in the business of "punishing" their residents. Rather, prisons perform two separate functions, one that is punitive and one that is custodial: prisons punish those they confine, and in this respect they are unique, but, like other residential facilities, prisons also protect and care for those within their custody. This article argues that the Estelle Court erred in failing to distinguish between these punitive and custodial functions and thereby merged two distinct constitutional concepts: the Eighth Amendment prohibition against cruel and unusual punishments, and the substantive due process duty of care and protection owed to those within government custody.

As a result of the blurring of the distinction between punishment and custodial care, the Court has struggled in the years since Estelle to develop Eighth Amendment standards that can govern all aspects of prison life. The Court's efforts have involved a tug-of-war between what the Court has termed "subjective" and "objective" factors.3 The former term has been used to describe considerations that focus on the intent of the prison administrators, employees, and guards who engage in the conduct or impose the conditions complained of. The latter term has been used to describe factors that relate to the impact upon the prisoner of the conduct or conditions. While the pre-Estellecases focused primarily upon issues of impact, the Court has, in recent years, shifted to a primarily intent-based Eighth Amendment analysis. Considerations of intent are useful in determining when the custodial duty of care has been breached, but an intent-based analysis is ill-suited for determining what amounts to cruel and unusual punishment. The result of the attempt to fit all aspects of incarceration into an intent-based framework has been an unwieldy and unworkable set of contextual standards developed by an increasingly fragmented Court.4

This article concludes that the standard for determining when punishment is cruel and unusual should be impact-based, as it was in the years preceding Estelle. However, in order to develop such a standard, it is first necessary to untangle the strands of analysis in Estelle and to separate those aspects of imprisonment that are "punitive," and therefore subject to the Eighth Amendment, from those that are "custodial," and therefore more appropriately analyzed as aspects of the substantive due process duty of care. Those features which are unique to prisons and thus properly considered to be "punitive" are the cell (and the cellblock) and the prison guard, because it is the prisoner's relationship to these which defines the experience of incarceration. Other features of imprisonment are similar to those in other residential institutions and are, therefore, custodial.

This article's discussion will proceed as follows. Section I contains an historical review of the Court's early Eighth Amendment cases. Section II discusses the modem cases, focusing on those involving issues of double-celling: Rhodes v. Chapman5 and Wilson v. Seiter.6 Section III discusses the inappropriateness of using an intent-based standard for determining when prison conditions are cruel and unusual. Section IV analyzes the Estelle decision. Finally, the concluding section proposes an alternative analysis, which distinguishes between punitive and custodial aspects of imprisonment.

Included in

Law Commons