December 2009 Vol. 108 No. 3 THE REVIEW

Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees' Conditions-of-Confinement Claims from Inadequate Eighth Amendment Analysis

David C. Gorlin

The Due Process Clause prohibits all “punishment” of pretrial detainees—individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of “cruel and unusual punishments” upon convicted individuals. Despite the Supreme Court’s insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees’ claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were aware of the harm and deliberately indifferent to their needs. The Eighth Amendment approach puts pretrial detainees on equivalent footing with convicted prisoners: detainees are only entitled to the same objective treatment as convicted prisoners, and they must overcome the same burdensome hurdle to state a claim—establishing the subjective deliberate indifference of jail officials.

This Note argues that Eighth Amendment standards do not adequately address pretrial detainees’ substantive due process rights. First, the substantive component of the Due Process Clause provides pretrial detainees with greater protection than the Eighth Amendment provides to convicted prisoners. The Eighth Amendment’s only relevance to pretrial detainees’ conditions-of-confinement claims is to set a floor; conditions falling below the Eighth Amendment floor automatically trigger a substantive due process violation. The ceiling of substantive due process protection is higher than the Eighth Amendment ceiling, however. Pretrial detainees retain the fundamental liberty interest to be free from deplorable conditions of confinement, whereas convictions substantially impair or extinguish that liberty interest. Second, requiring pretrial detainees to establish the subjective deliberate indifference of jail officials contradicts the traditional approach of substantive due process jurisprudence, which relies upon objective criteria in assessing conditions-of-confinement claims.

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