Helling v. McKinney Page 17

Helling v. McKinney general information

Media for Helling v. McKinney

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

Cornish F. Hitchcock:

Well, if I could give a factual answer, one of the striking things about the EPA's study, although it's not gone into detail, is that the part of the population most susceptible to serious injuries are, in fact, children.

Conditions such as asthma and other conditions, which may not have been suspected not terribly long ago, are, in fact, conditions that... which children can, in fact, obtain serious illnesses far beyond the magnitude of the 3,000 excess lung cancer deaths a year.

So the way I would answer it is let's look at asbestos.

A number of years ago one would not have thought it was child abuse to put children in schoolrooms with asbestos.

One might not have thought... one would have thought building one's home with asbestos was perfectly benign.

I think the question here... the only question presented on the merits is whether or not a cause of action is stated based on an objective condition and whether, under Conley v. Gibson, one can say as a matter of law that there's no set of facts that could be proven which would entitle Mr. McKinney to relief.

William H. Rehnquist:

How does Conley v. Gibson bear on a case that went to trial?

Cornish F. Hitchcock:

Because it went to trial on the separate question of whether Mr. McKinney is suffering a present injury.

And let me--

William H. Rehnquist:

Well, wasn't that up to Mr. McKinney, to what... what issues he went to trial on?

Cornish F. Hitchcock:

--It was up to trial, but... but the... the second claim recognized by the court of appeals turned upon his ability to produce some kind of evidence as to the long-term exposure, and I believe he protected his right by filing not one but two motions to have expert testimony, which was denied, in which the magistrate... which the court of appeals said he's entitled to.

I think the distinction, in response to your question and other questions from the Court, Mr. Chief Justice, is that... a distinction between a case such as Hutto v. Finney.

If a prisoner... which involved the punitive isolation from other prisoners.

If a prisoner complained on the first day of that kind of punitive isolation and a doctor said I've looked at this person, there's absolutely nothing wrong with him, one would be hard pressed to say that there was deliberate indifference to a current condition.

Similarly... but on the other hand if the condition involved his exposure after a month or several weeks or a year, that might be a situation where there was an injury.

And as the Court pointed out in Hutto, situations that are tolerable for a few days or a few weeks may be, in the Court's phraseology, intolerably cruel for a longer period of time.

William H. Rehnquist:

Well, then a decision on the objective component of the cruel and unusual punishment aspect of this case would probably have more staying power and significance than a decision on the... on the subjective.

Cornish F. Hitchcock:

Well, as a matter of law to guide the lower courts.

But let me talk also more specifically about that, because I think analytically the question of whether exposure to environmental tobacco smoke can, at some level, rise to an objective Eighth Amendment violation really has two subclass... subparts to it.

The first is whether, at a general level or as a general proposition, exposure to a hazard which does not manifest itself immediately but is... poses an unreasonable risk of a serious harm at some future point is covered by the Eighth Amendment.

That's the position that the State takes in this case, although the solicitor general, at least, does not go that far.

And let me give an example of what accepting that argument would mean, and then I will suggest that this Court has not gone that far in its opinions.

Under the State's formulation in this case, let us suppose that prisoners in a prison system were given shots using the same needle.

They had to share a needle, a flu shot or whatever.

And let's suppose that some of the inmates sharing that needle were HIV positive and let's suppose that that would have the effect of exposing some unexposed prisoners to be getting the AIDS virus and dying a rather slow and painful death somewhere down the road.

Under that scenario the State posits that that is not cruel and unusual punishment to expose people to that risk, that the Eighth Amendment only applies if death or serious injury is... is instantaneous or imminent, and it does not cover those types of situations down the road.

I think that argument is foreclosed, at least implicitly, by decisions of this Court such as Hutto v. Finney and Rhodes v. Chapman, particularly Rhodes where the Court cited with approval a number of lower court decisions which also involved threats of... of imminent danger where it was not clear that somebody would be... would be injured.

Antonin Scalia:

But again, I... you know, I expect any doctor who... who used needles that way would be subject to... to a lawsuit under... under current standards.

And I assume any parent who... who used the same needle for a series of injections to various children would be subject to some... some legal sanction for that kind of action.

But, once again, I think if the doctor has a... does not have a nonsmoking waiting room or if the parents smoke despite the fact that they have children, we do not consider that contrary to current standards.