Hudson v. McMillian/Concurrence Stevens

Justice Stevens, concurring in part and concurring in the judgment.

In Whitley v. Albers, 475 U.S. 312 (1986), the Court held that injuries to prisoners do not constitute cruel and unusual punishment when they are inflicted during a prison disturbance that "indisputably poses significant risks to the safety of inmates and prison staff" unless force was applied "'maliciously and sadistically for the very purpose of causing harm.'" Id., at 320–321 (citation omitted). The Court's opinion explained that the justification for that particularly high standard of proof was required by the exigencies present during a serious prison disturbance. "When the 'ever-present potential for violent confrontation and conflagration' ripens into actual unrest and conflict," id., at 321 (citation omitted), then prison officials must be permitted to "take [p. 13] into account the very real threats the unrest presents to inmates and prison officials alike." Id., at 320.

Absent such special circumstances, however, the less demanding standard of "'unnecessary and wanton infliction of pain'" should be applied. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)); see Unwin v. Campbell, 863 F.2d 124, 135 (CA1 1988) (opinion of Campbell, C. J.) ("[W]here institutional security is not at stake, the officials' license to use force is more limited; to succeed, a plaintiff need not prove malicious and sadistic intent"); see also Wyatt v. Delaney, 818 F.2d 21, 23 (CA8 1987). This approach is consistent with the Court's admonition in Whitley that the standard to be used is one that gives "due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged." 475 U.S., at 320. In this case, because there was no prison disturbance and "no need to use any force since the plaintiff was already in restraints," App. 27, the prison guards' attack upon petitioner resulted in the infliction of unnecessary and wanton pain. Id., at 28.

Although I think that the Court's reliance on the malicious and sadistic standard is misplaced, I agree with the Court that even this more demanding standard was met here. Accordingly, I concur in Parts I, II–A, II–B, and II–C of the Court's opinion and in its judgment.