18
Thomas, J., dissenting
appeal did not disturb that assessment, and it has not been challenged here. The sole issue in this case, as it comes to us, is a legal one: Must a prisoner who claims to have been subjected to "cruel and unusual punishments" establish at a minimum that he has suffered a significant injury? The Court today not only responds in the negative, but broadly asserts that any "unnecessary and wanton" use of physical force against a prisoner automatically amounts to cruel and unusual punishment, whenever more than de minimis force is involved. Even a de minimis use of force, the Court goes on to declare, inflicts cruel and unusual punishment where it is "repugnant to the conscience of mankind." Ante, at 10 (internal quotation marks omitted).1 The extent to which a prisoner is injured by the force—indeed, whether he is injured at all—is in the Court's view irrelevant.
In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment. In concluding to the contrary, the Court today goes far beyond our precedents.
A
Until recent years, the Cruel and Unusual Punishments Clause was not deemed to apply at all to deprivations that were not inflicted as part of the sentence for a crime. For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration. In Weems v. United States, 217 U. S. 349 (1910), the Court extensively chronicled the background of the Amendment, discussing its English antecedents, its adoption by Congress, its construction by this Court, and the in-1 This point is pure dictum, because the force here was surely not de minimis.
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