In 1991 an inmate named Dee Farmer sued prison officials at the US Penitentiary in Terre Haute, Indiana, for violating the Eighth Amendment’s prohibition against cruel and unusual punishment. Penitentiary staff had placed Farmer, a Black transgender woman incarcerated for credit card fraud, with male prisoners, one of whom had beaten and raped her. Representing herself without counsel before lower courts, Farmer argued that her jailers had knowingly confined her in a ward where she was particularly vulnerable to sexual violence.
Her case reached the Supreme Court in 1994. In a majority opinion joined by all but one justice, the Court held that Farmer’s lawsuit could proceed and remanded the case to lower courts to apply the “Eighth Amendment principles.” Those principles included affirmative duties (an obligation to “provide humane conditions of confinement” and “take reasonable measures to guarantee the safety of the inmates”) as well as negative restraints (a bar on using “excessive physical force against prisoners”). Reiterating existing doctrine, the majority opinion underscored that these principles were not fixed but rather grow with what the Court, in a 1958 case, had called the country’s “evolving standards of decency.” What counts as cruel and unusual punishment, in other words, needs to reflect contemporary values and practices.
The sole justice who refused to join the majority opinion was Clarence Thomas, then less than three years into his tenure on the Court. His opinion began on a startling note: “Prisons are necessarily dangerous places; they house society’s most antisocial and violent people in close proximity with one another.” He went on to quote approvingly from a lower court opinion arguing that “some level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do…unless all prisoners are locked in their cells twenty-four hours a day and sedated.”
Then Thomas proceeded to the source of his objection. For nearly two decades, he wrote, “the Court’s prison condition jurisprudence has been guided, not by the text of the Constitution, but rather by ‘evolving standards of decency that mark the progress of a maturing society.’ I continue to doubt the legitimacy of that mode of constitutional decisionmaking.” He hoped that the Court would someday “reconsider” the “dubious precedents” behind those standards “in light of the constitutional text and history.”