Helling v. McKinney Page 16

Helling v. McKinney general information

Media for Helling v. McKinney

Audio Transcription for Oral Argument - January 13, 1993 in Helling v. McKinney

Sandra Day O'Connor:

Well, counsel, if the trial court were to look at the current adopted and articulated policy regarding secondary smoke and conclude that under that policy there could be no deliberate indifference, then there wouldn't be a need for taking testimony from an expert, would there?

I mean that would be the end of the case, because you have to meet two prongs.

Cornish F. Hitchcock:

Yes.

The case may well be decided on summary judgment based on the subjective prong.

The question that is presented in this case however, the only issue that the State brought up, is the question of whether the objective prong of an Eighth Amendment violation can be stated based upon the exposure to tobacco smoke that may cause a serious injury down the road.

Sandra Day O'Connor:

Well I thought normally we tried to avoid deciding tough constitutional issues if there was some other factual nonconstitutional basis for deciding it.

Cornish F. Hitchcock:

That is correct, and that's why we suggested in our brief that the policy in question here, if it had been brought up at the petition stage, we could have talked about it and suggested that the best resolution would have been either to deny certiorari and let the case go back, either in the judgment or affirm... with the judgment of the court of appeals remaining unaffected, or with instructions to consider this element as well.

But we didn't know until the merit stage that there had been an explicit policy in question.

And I think--

Antonin Scalia:

Mr. Hitchcock.

Cornish F. Hitchcock:

--Yes, sir.

Antonin Scalia:

Just to talk for a minute about the issue on which we granted certiorari in this case, would you... what is your response to Mr. Roberts assertion that it... it would seem extraordinary to say that it's cruel and unusual punishment simply to expose someone to secondary cigarette smoke when we don't even consider it child abuse--

Cornish F. Hitchcock:

My answer--

Antonin Scalia:

--For parents to do that?

Cornish F. Hitchcock:

--Well, my answer to that, I think, will depend in turn upon the evolving standards.

As we... we pointed out in our brief the fact that, as of the time we wrote it, EPA and... EPA was in the process of adopting a report which was finally released last week, which, in fact, classifies environmental tobacco smoke not as some annoyance to which everybody is subjected at some time in his or her life, or part of what's called in the scientific parlance, background smoke--

Antonin Scalia:

Well, EPA is sort of on the cutting edge in these things, isn't it?

Cornish F. Hitchcock:

--No, I don't think so, Your Honor.

Antonin Scalia:

You don't think so.

Cornish F. Hitchcock:

No.

If... if you examine the methodology the EPA has... and we cited the sources... what they do is they look to the weight of the evidence.

There is a... a series of scientific papers, scientific studies, which conclusively show that EPA should, in fact... that environmental tobacco smoke is, in fact, a Group A carcinogen of the same order as arsenic, asbestos, benzene, coke oven emissions--

Antonin Scalia:

Well, that's fine--

Cornish F. Hitchcock:

--And simpler considerations--

Antonin Scalia:

--That... that establishes the risk and the danger, just as you can establish the risk and the danger from eating too many fatty foods.

But people haven't stopped eating fatting foods, and I... and I presume we don't have to feed people in prisons bean sprouts simply because that would be healthier.

Cornish F. Hitchcock:

--No.

Antonin Scalia:

It's a risk that we all know about and that this society has accepted.

I mean maybe it's intelligent, maybe it's unintelligent, but this society has accepted it.

Now, why isn't the case... why isn't it the case that whatever the EP says... EPA says about the medical fact, this society has accepted this risk, as is demonstrated by the fact that it is not... you have no cause of action for child abuse simply because you raise your child in a... in a nonsmoke-free environment.