A Monstrous Decision

June 21, 1991

President Bush must feel a little like Dr. Frankenstein. The Supreme Court he and Ronald Reagan created has shown it can be a monster even by his standards. Last week, the three Reagan justices, the one Bush justice and the veteran justice Mr. Reagan elevated to the chief justiceship produced a cruel and unusual opinion that the Justice Department strongly opposed.

The case involved an inmate's complaint that conditions in an Ohio prison taken as a whole were so inhumane as to constitute "cruel and unusual punishment." That is forbidden by the Eighth Amendment to the Constitution. A lower court had broken with precedent and ruled that in such cases, this sort of behavior by prison officials is acceptable except when they demonstrated "persistent malicious cruelty." Cruel state of mind of the wardens was what counted. Very cruel.

Even this Supreme Court wouldn't buy that outrageous a standard. But it did rule, in an opinion by Antonin Scalia, that unless "deliberate indifference" was proven, there was no violation. That also goes to the state of mind of the wardens and guards in a specific prison. But as the dissenters in the case noted, in an opinion by Byron White, "Inhumane prison conditions often are the result of cumulative actions and inactions by numerous officials inside and outside a prison, sometimes over a long period of time. In these circumstances, it is far from clear whose intent should be examined [for deliberate indifference]."

The dissent also noted that any challenge to prison conditions now may be defensible on the grounds that a state legislature did not appropriate enough money for a humane environment. You can bet on it. In that case, if the intention of "deliberately indifferent" politicians was merely to balance the budget, does it mean prisoners can be quadrupled-celled or even kept in "tiger cages"? And otherwise treated like animals? This monstrous decision appears to condone such, and may even invite it by abandoning or greatly minimizing all objective standards of humane imprisonment. If the majority did not intend that, we hope it will reconsider the issue when states start accepting the invitation.

Everyone has a stake in this. The worse prisoners are treated inside prison, the more anti-social and dangerous they are likely to be when they get out.

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