Hudson v. McMillian - Dissenting Justices Assert Eighth Amendment Not Intended To Regulate Prisons

Justice Thomas, joined by Justice Scalia, wrote a long dissent. The dissent concentrated on the Court's prior cases on the Eighth Amendment, arguing that the majority's holding extended them too far. Thomas noted that the Court's first application of the Eighth Amendment to a prisoner's suffering in prison did not come until 1976, and the holding in that case, Estelle v. Gamble, gave the Eighth Amendment only "a very limited role in regulating prison administration." The dissent argued that the Court's cases since Estelle gave the Court no room to extend the Eighth Amendment to cover insignificant harm. The Court had synthesized its Eighth Amendment jurisprudence in Wilson, a case decided the previous term. In that case, the dissent argued, the Court had indeed established two basic issues in Eighth Amendment analysis: whether the deprivation was sufficiently serious (the objective component), and whether the officials act with a sufficiently culpable state of mind (the subjective component).

The Whitley opinion, the dissent asserted, did not endorse the elimination of the objective component. Thomas noted that while the majority had eliminated the objective component, it had heightened the standard of proof on the subjective component for prisoners claiming excessive force, from wanton infliction of pain and suffering to malicious and sadistic. "The Court's unwarranted extension of Whitley, I can only suppose," mocked Thomas, "is driven by the implausibility of saying that minor injuries imposed upon prisoners with anything less than a 'malicious and sadistic' state of mind can amount to cruel and unusual punishment."

Thomas decried the violence in the case, but he emphasized that the lower court had found that the injuries suffered by Hudson were minor. The dissent felt that the Court should not have disturbed the finding of that court. Furthermore, the High Court should not have taken the case in the first place: it was a matter of state law, not the law of the federal Constitution. "The Eighth Amendment is not," Thomas averred, "and should not be turned into, a National Code of Prison Regulation."