40
Thomas, J., dissenting
years of the provision's existence. It was not until the 1960's that lower courts began applying the Eighth Amendment to prison deprivations, see, e. g., Wright v. McMann, 387 F. 2d 519, 525-526 (CA2 1967); Bethea v. Crouse, 417 F. 2d 504, 507-508 (CA10 1969), and it was not until 1976, in Estelle v. Gamble, 429 U. S. 97, that this Court first did so.
Thus, although the evidence is not overwhelming, I believe that the text and history of the Eighth Amendment, together with the decisions interpreting it, support the view that judges or juries—but not jailers—impose "punishment." At a minimum, I believe that the original meaning of "punishment," the silence in the historical record, and the 185 years of uniform precedent shift the burden of persuasion to those who would apply the Eighth Amendment to prison conditions. In my view, that burden has not yet been discharged. It was certainly not discharged in Estelle v. Gamble.
B
The inmate in Estelle claimed that inadequate treatment of a back injury constituted cruel and unusual punishment. The Court ultimately rejected this claim, but not before recognizing that "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment. Id., at 104. In essence, however, this extension of the Eighth Amendment to prison conditions rested on little more than an ipse dixit. There was no analysis of the text of the Eighth Amendment in Estelle, and the Court's discussion of the provision's history consisted of the following single sentence: "It suffices to note that the primary concern of the drafters was to proscribe 'torture[s]' and other 'barbar[ous]' methods of punishment." Id., at 102. And although the Court purported to rely upon "our decisions interpreting" the Eighth Amendment, ibid., none of the six cases it cited, see id., at 102-103, held that the Eighth Amendment applies to prison deprivations—or, for that matter, even addressed
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