Why Are State Constitutional Challenges to Inhumane Prison Conditions So Rare?

The Eighth Amendment’s ban on cruel and unusual punishment requires that incarcerated people be held in humane living conditions. In practice, however, federal courts sometimes permit deeply troubling conditions behind bars. One federal appellate court found no Eighth Amendment violation where a man was held in solitary confinement for years without a single hour of exercise. Another dismissed claims against a correctional officer who allegedly trapped an elderly man in a backed-up shower containing feces and urine for up to 40 minutes. (Full disclosure: I was part of a team that represented both these plaintiffs in my past life as an appellate attorney at the MacArthur Justice Center.) The list of constitutionally permissible mistreatment goes on and on. 

Weak federal protections present an opportunity for state supreme courts to apply their states’ bans on cruel punishment to prison conditions. Yet few have done so, even though the issue is increasingly a matter of public discussion.

State high courts have not hesitated to use their Eighth Amendment analogues in other contexts. At least a dozen have found that their cruel and/or unusual punishment clauses offer broader protections against excessive prison sentences than the federal Eighth Amendment. And state constitutional excessive sentencing litigation is gaining momentum: at least five cases currently pending in Michigan alone ask the state high court to expand sentencing protections under the state’s bar on cruel or unusual punishments.

I have some guesses as to why there is comparatively little state prison conditions litigation. First, some federal courts help people who can’t afford lawyers to find pro bono counsel — a huge draw for incarcerated plaintiffs. Litigants in civil rights cases are not guaranteed lawyers, as they are in criminal matters. The importance of legal representation cannot be overstated. Professor Joanna Schwartz of UCLA Law School found that represented civil rights plaintiffs succeeded 70 percent of the time, while fewer than 17 percent of those bringing similar claims without counsel prevailed. 

Second, federal law entitles a winning civil rights plaintiff to legal fees, which increases the likelihood of finding counsel absent access to a court-appointed attorney. Very few states have similar fee-shifting provisions. 

Third, a federal statute known as Section 1983 allows damages awards — in the form of money — for civil rights violations. An Institute of Justice report found that only eight states have similar statutes authorizing state constitutional damages claims. 

While prison conditions cases in state court are rare, there are a few notable examples. The Washington Supreme Court, for example, in 2021 rejected the federal standard in favor of a more plaintiff-friendly test for incarcerated people challenging their living conditions. Applying the new standard, the court ruled in favor of a wheelchair-bound man denied proper hygiene behind bars during the Covid-19 pandemic. 

In 1981, the Oregon Supreme Court held that the state constitution’s guarantee that no one in custody “be treated with unnecessary rigor” prohibited pat-down searches of incarcerated men by female prison officers. The court called the practice a “needless indignity” that “cannot be justified by necessity.” An Oregon appellate court last year relied on that precedent to hold that a prison’s inconsistent enforcement of masking requirements during the pandemic was unconstitutional. 

These cases suggest state constitutions are a promising avenue for curbing abuses behind bars. And, indeed, a (modest) recent uptick in new conditions cases suggests we may soon see additional state supreme court rulings in this area. 

In Oregon, for example, at least half a dozen lower court decisions over the last 12 months have found that correctional officials violated the state’s unnecessary rigor clause. The orders address all manner of indignity, from conditions that exacerbate mental illness to failure to provide gender-affirming care to inadequate treatment of chronic pain, herpes, and post-traumatic stress disorder. Notably, Oregon law authorizes attorneys’ fees for successful petitions for writs of habeas corpus, the legal mechanism the litigants in these cases used to challenge their treatment. 

And the American Civil Liberties Union of New Mexico this year filed a complaint alleging that the solitary confinement of a woman living with mental illness violated the state constitution’s ban on cruel and unusual punishment. The case was brought under the state’s new Section 1983 equivalent, the New Mexico Civil Rights Law, which was passed in 2021 to create a right to sue for state constitutional violations. As far as I can tell, the case is the first of its kind in the state — and it highlights the potential power of legislation authorizing people whose rights have been violated to sue.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.