Global Warming and the Eighth Amendment – Give Them Swelter!

As we continue, year-on-year unabated, to see steadily increasing temperature rises – new heat records broken with increasing frequency – do incarcerated prisoners have a constitutional right to air conditioning to counter those obvious temperatures? It’s that Eighth Amendment’s ban on “cruel and unusual punishment.” Yet our own founding fathers worked in sweltering East Cost heat and humidity, mopping their sweaty brows and just “dealing with the heat.” And while they did not face global climate change, they sure knew about oppressive heat and how it can sap the soul. So clearly, heat relief cannot be a constitutional right?

Still, vast desert holdings – from Texas to Arizona – were not part of the United States back in 1776 or even 1789 (when the Bill of Rights was added to the Constitution), so while nasty heat was part of their culture, desert extremes were not. Global warming wasn’t even a passing thought. And let’s face it, technology has to have some impact on our generally accepted standards of life.

After all, if we strictly interpreted the constitution, Congress shouldn’t have a right to authorize and fund an “air force.” You can see that the Constitution (Article I, Section 8) empowers Congress to create an army, a navy and even militia (“to execute the laws of the Union, to suppress Insurrections and repel Invasions”), but nowhere is the mention of an “air force.” Well, arguing the obvious, the United States could hardly have national military security – the intention behind that provision of Article I, Section 8 provision – without air power.

Does that “obviousness” apply generally to other changes in society, technology or environment? We’ve seen dramatic changes in criteria surrounding the technology of the death penalty, even down and dirty questions as to whether, in a modern world, that ultimate criminal penalty might now be “cruel and unusual” under global contemporary values.

But, you might observe, there are plenty of people who live in warm climates who cannot afford air conditioning. Why should we treat convicts and those facing criminal trials better than those poorest members of society? Perhaps, there is a difference. Even the poorest folks can leave their hot-box homes in extreme moments. Prisoners are stuck, rather literally. They already face prison violence – which really should not be a normal and expected part of incarceration (deprivation of liberty, nasty food and constrained living should be more than enough) – but is oppressive heat just part of the process?

Maricopa County (Phoenix), Arizona has a “Tent City” jail (literally canvas tents, pictured above), created and administered by extreme “America’s Toughest” Sheriff Joe Arpaio, who faces possible jail time himself by allegedly ignoring a court order against racial profiling. Tent City is in a city where temperatures can hold at 100+ degrees (Fahrenheit) for 30 or more consecutive days. Temperatures inside some of these tents can hit a killing 145 degrees, mimicking closed vehicles and ovens. The temperatures often thus rise to 30 degrees above the day’s high temperature, a harsh reality to the approximately 1400 prisoners (virtually all of whom are convicted of or awaiting trial on non-violent crimes). In such super-extreme heat, on rare occasion, deputies will pass out cups of ice to alleviate the most extreme temperatures. “Critics have called his jail's treatment of the inmates inhumane. Arpaio has defended it, saying it has saved taxpayers millions of dollars.” AOL.com, August 20^th. It’s hardly just a problem in desert states.

“The air inside the Jefferson Davis Parish [Louisiana] jail was hot and musty. Prisoners, often awakened by the morning heat, hoped for cooling rain after nightfall. And ice, one inmate recalled, brought fleeting relief in the cell she called a ‘sweatbox.’… Even though summer temperatures routinely roar past 100 degrees here, the jail, like scores of other jails and prisons across the country, has no air-conditioning…

“Judges from Arizona to Mississippi to Wisconsin have declared over the years that the Eighth Amendment to the Constitution forbids incarceration in decidedly hot or cold temperatures. Still, prison reform activists encounter deep resistance in their quest to cool the nation’s cellblocks.

“‘It’s almost impossible for courts to deny the constitutional violation because extreme heat undoubtedly exposes individuals to substantial risk of serious harm,’ said Mercedes Montagnes, a lawyer for three inmates with health issues who challenged conditions on Louisiana’s death row. ‘Now what we’re grappling with is the remedy.’

“Officials offer a range of justifications for the absence of air-conditioning and for their reliance on cold showers, plentiful liquids and fans to help prisoners manage in the heat. Some contend that cooling systems are prohibitively expensive to install, particularly in older facilities.

“In places like Louisiana and Texas, sweltering states where elected officials cherish tough-on-crime credentials, it is politically poisonous to be perceived as coddling prisoners. And many officials simply say that temperatures are not anywhere near as dire as prisoners and their lawyers claim… ‘For the first 20 years of my life, I lived in a house with no air-conditioning,’ said Jim Willett, the director of theTexas Prison Museum and a former warden at the state’s death house. ‘I just have a hard time sympathizing with anybody over air-conditioning.’…

“A spokesman for the Texas Department of Criminal Justice, which is facing an array of lawsuits over the issue of jail temperatures, including a class-action case, said in a statement that ‘the well-being of staff and offenders is a top priority for the agency and we remain committed to making sure that both are safe during the extreme heat.’

“The spokesman, Jason Clark, said that 30 of his agency’s 109 facilities are fully air-conditioned, but he asserted that retrofitting all the department’s other prisons would cost hundreds of millions of dollars.

“The disputes surrounding the climate of modern incarceration can be partly traced to 1981, when the Supreme Court concluded that ‘the Constitution does not mandate comfortable prisons.’ About 35 years later, states, counties and cities are interpreting the court’s words in their own ways… In Texas, state regulations require that temperatures in county jails ‘shall be reasonably maintained between 65 degrees Fahrenheit and 85 degrees Fahrenheit in all occupied areas.’ But that standard does not apply to state prisons.” New York Times, August 15^th. How merciless does the temperature have to get before a prison has a right to relief?

I’m Peter Dekom, and if just didn’t have so many more people in prison than any other country in the world…