Justice White, delivered the opinion of the Court.
This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental
I
Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, id., at 7-8, and that certain cigarettes burned continuously, releasing some type of chemical, id., at 9. Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. Id., at 14.
The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent's suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent's serious medical needs. App. to Pet. for Cert. D2—D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While "society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment," society cannot yet completely agree on the resolution of these issues. Id., at D3, D6. The Magistrate
The Court of Appeals affirmed the Magistrate's grant of a directed verdict on the issue of deliberate indifference to respondent's immediate medical symptoms. McKinney v. Anderson, 924 F.2d 1500, 1512 (CA9 1991). The Court of Appeals also held that the defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS.
Petitioners sought review in this Court. In the meantime, this Court had decided Wilson v. Seiter, 501 U.S. 294 (1991), which held that, while the Eighth Amendment applies
On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his health—the objective component of respondent's Eighth Amendment claim. McKinney v. Anderson, 959 F.2d 853, 854 (CA9 1992). The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at 854.
Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in Clemmons v. Bohannon, 956 F.2d 1523 (1992). We granted certiorari. 505 U.S. 1218 (1992). We affirm.
II
The petition for certiorari which we granted not only challenged the Court of Appeals' holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent's complaint rested only on the alleged current effects of exposure to cigarette
III
It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said
Contemporary standards of decency require no less. Estelle v. Gamble, 429 U. S., at 103-104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, "deliberate indifference to serious medical needs of prisoners" violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Id., at 104. Wilson v. Seiter, 501 U.S. 294 (1991), later held that a claim that the conditions of a prisoner's confinement violate the Eighth Amendment requires an inquiry into the prison officials' state of mind. "`Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the "deliberate indifference" standard articulated in Estelle.'" Id., at 303.
Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is "reasonable safety." DeShaney, supra, at 200. It is "cruel and unusual punishment to hold convicted criminals in unsafe conditions." Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F.2d 1291
The United States as amicus curiae supporting petitioners does not contend that the Amendment permits "even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects." Brief for United States as Amicus Curiae 19. Hutto v. Finney, the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would "present a risk of sufficient likelihood or magnitude—and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented—that" the Amendment's protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a "`serious medical nee[d],'" and that exposure to ETS is not contrary to current standards of decency. Id., at 20-22. It would be premature for us, however, as a matter of law to
IV
We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.
With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-aday smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy
Also with respect to the objective factor, determining whether McKinney's conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.
On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney's counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that
V
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice Thomas, with whom Justice Scalia joins, dissenting.
Last Term, in Hudson v. McMillian, 503 U.S. 1 (1992), the Court held that the Eighth Amendment prohibits the use of force that causes a prisoner only minor injuries. Believing that the Court had expanded the Eighth Amendment "beyond all bounds of history and precedent," id., at 28, I dissented. Today the Court expands the Eighth Amendment in yet another direction, holding that it applies to a prisoner's mere risk of injury. Because I find this holding no more acceptable than the Court's holding in Hudson, I again dissent.
I
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Court holds that a prisoner states a cause of action under the Cruel and Unusual Punishments Clause by alleging that prison officials, with deliberate indifference, have exposed him to an unreasonable risk of harm. This decision, like every other "conditions of confinement" case since Estelle v. Gamble, 429 U.S. 97 (1976), rests on the premise that deprivations suffered by a prisoner constitute "punishmen[t]" for Eighth Amendment purposes, even when the deprivations have not been inflicted as part of a criminal sentence. As I suggested in Hudson,
A
At the time the Eighth Amendment was ratified, the word "punishment" referred to the penalty imposed for the commission of a crime. See 2 T. Cunningham, A New and Complete Law-Dictionary (1771) ("the penalty of transgressing the laws"); 2 T. Sheridan, A General Dictionary of the English Language (1780) ("[a]ny infliction imposed in vengeance of a crime"); J. Walker, A Critical Pronouncing Dictionary (1791) (same); 4 G. Jacob, The Law-Dictionary: Explaining the Rise, Progress, and Present State, of the English Law 343 (1811) ("[t]he penalty for transgressing the Law"); 2 N. Webster, American Dictionary of the English Language (1828) ("[a]ny pain or suffering inflicted on a person for a crime or offense"). That is also the primary definition of the word today. As a legal term of art, "punishment" has always meant a "fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him." Black's Law Dictionary 1234 (6th ed. 1990). And this understanding of the word, of course, does not encompass a prisoner's injuries that bear no relation to his sentence.
Nor, as far as I know, is there any historical evidence indicating that the Framers and ratifiers of the Eighth Amendment had anything other than this common understanding of "punishment" in mind. There is "no doubt" that the English Declaration of Rights of 1689 is the "antecedent of our constitutional text," Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (opinion of Scalia, J.), and "the best historical evidence" suggests that the "cruell and unusuall Punishments" provision of the Declaration of Rights was a response to sentencing abuses of the King's Bench, id., at 968. Just as there was no suggestion in English constitutional history
To the extent that there is any affirmative historical evidence as to whether injuries sustained in prison might constitute "punishment" for Eighth Amendment purposes, that evidence is consistent with the ordinary meaning of the word. As of 1792, the Delaware Constitution's analogue of the Eighth Amendment provided that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted; and in the construction of jails a proper regard shall be had to the health of prisoners. " Del. Declaration of Rights, Art. I, § XI (1792) (emphasis added). This provision suggests that when members of the founding generation wished to make prison conditions a matter of constitutional guarantee, they knew how to do so.
Judicial interpretations of the Cruel and Unusual Punishments Clause were, until quite recently, consistent with its text and history. As I observed in Hudson, see 503 U. S., at 19, lower courts routinely rejected "conditions of confinement" claims well into this century, see, e. g., Negrich v. Hohn, 246 F.Supp. 173, 176 (WD Pa. 1965) ("Punishment is a penalty inflicted by a judicial tribunal in accordance with law in retribution for criminal conduct"), and this Court did not so much as intimate that the Cruel and Unusual Punishments Clause might reach prison conditions for the first 185
Thus, although the evidence is not overwhelming, I believe that the text and history of the Eighth Amendment, together with the decisions interpreting it, support the view that judges or juries—but not jailers—impose "punishment." At a minimum, I believe that the original meaning of "punishment," the silence in the historical record, and the 185 years of uniform precedent shift the burden of persuasion to those who would apply the Eighth Amendment to prison conditions. In my view, that burden has not yet been discharged. It was certainly not discharged in Estelle v. Gamble.
B
The inmate in Estelle claimed that inadequate treatment of a back injury constituted cruel and unusual punishment. The Court ultimately rejected this claim, but not before recognizing that "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment. Id., at 104. In essence, however, this extension of the Eighth Amendment to prison conditions rested on little more than an ipse dixit. There was no analysis of the text of the Eighth Amendment in Estelle, and the Court's discussion of the provision's history consisted of the following single sentence: "It suffices to note that the primary concern of the drafters was to proscribe `torture[s]' and other `barbar[ous]' methods of punishment." Id., at 102. And although the Court purported to rely upon "our decisions interpreting" the Eighth Amendment, ibid., none of the six cases it cited, see id., at 102-103, held that the Eighth Amendment applies to prison deprivations—or, for that matter, even addressed
The only authorities cited in Estelle that supported the Court's extension of the Eighth Amendment to prison deprivations were lower court decisions (virtually all of which had been decided within the previous 10 years), see id., at 102, 104-105, nn. 10-12, 106, n. 14, and the only one of those decisions upon which the Court placed any substantial reliance was Jackson v. Bishop, 404 F.2d 571 (CA8 1968). But Jackson, like Estelle itself, simply asserted that the Eighth Amendment applies to prison deprivations; the Eighth Circuit's discussion of the problem consisted of a two-sentence paragraph in which the court was content to state the opposing view and then reject it: "Neither do we wish to draw . . . any meaningful distinction between punishment by way of sentence statutorily prescribed and punishment imposed for prison disciplinary purposes. It seems to us that the Eighth Amendment's proscription has application to both." 404 F. 2d, at 580-581. As in Estelle, there was no analysis of the text or history of the Cruel and Unusual Punishments Clause.
II
To state a claim under the Cruel and Unusual Punishments Clause, a party must prove not only that the challenged conduct was both cruel and unusual, but also that it constitutes punishment. The text and history of the Eighth Amendment, together with pre-Estelle precedent, raise substantial doubts in my mind that the Eighth Amendment proscribes a prison deprivation that is not inflicted as part of a sentence. And Estelle itself has not dispelled these doubts. Were the issue squarely presented, therefore, I might vote to overrule Estelle. I need not make that decision today, however, because this case is not a straightforward application of Estelle. It is, instead, an extension.
In Hudson, the Court extended Estelle to cases in which the prisoner has suffered only minor injuries; here, it extends Estelle to cases in which there has been no injury at all.
Accordingly, I would reverse the judgment of the Court of Appeals.
FootNotes
John A. Powell, Steven A. Shapiro, and David C. Fathi filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
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