Helling v. McKinney Page 3

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Media for Helling v. McKinney

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

John Paul Stevens:

And secondly, whether they were deliberately indifferent to the whole smoking policy.

Weren't they separate in that magistrate... before the magistrate, or am I wrong on that?

Frankie Sue Del Papa:

I don't... I don't believe so.

John Paul Stevens:

I see.

Well, didn't the magistrate find that there was really no problem unless the prisoner had some symptoms, some active symptoms of... that would require medical treatment?

That just a latent threat, as yet unrealized, just wouldn't state a cause of action.

And on that basis they found no deliberate... no... no indifference because there weren't any symptoms.

Frankie Sue Del Papa:

There were symptoms, Justice White, that--

Byron R. White:

All right.

But, anyway, whatever the symptoms were, they weren't... he found that they were not deliberately indifferent.

Frankie Sue Del Papa:

--Yes.

Antonin Scalia:

Well, the point is that the deliberate indifference finding of the magistrate was connected with the... with the substantive finding that there's no... that there's no problem so long as you don't have current symptoms.

Frankie Sue Del Papa:

Yes.

Antonin Scalia:

That you don't have a right to... so you can't really say that the rest of the case goes away by reason of the deliberate indifference finding.

Frankie Sue Del Papa:

Well, we would argue that the... the exposure to the environmental tobacco smoke in the first instance does not meet with the objective component.

And, of course, I realize you can take these and there's no set way in taking these.

Antonin Scalia:

No, but... but the problem is if... if this case comes to us with the finding that, in fact, the State was not indifference... was not indifferent to this... to this prisoner's desire to have a nonsmoking roommate and was not indifference to his... was not indifferent deliberately to his desire to... to have clean air, entirely clean, free of cigarette smoke, then, as Justice O'Connor says, we don't have to reach the other issue.

But I did not understand the magistrate to have said oh, the State was very... very concerned about this prisoner's right to clean air.

I thought the magistrate said he has no right to clean air.

Now, he has a right, if he has symptoms, to be given some consideration, but they did that.

They were not deliberately indifferent to that.

Now, is that a fair description of what--

Frankie Sue Del Papa:

Yes.

--Okay.

Frankie Sue Del Papa:

That's a very fair description.

First let us say that we share concern that exposure to environmental tobacco smoke is a potential health hazard.

We fully recognize and appreciate the EPA's recent report giving ETS class-A status as an environmental hazard.

But we do not agree that exposure to it rises to the level of an Eighth Amendment violation.

Giving it that status has considerable consequences.

Harry A. Blackmun:

Even though it's five packs a day.