Cite as: 511 U. S. 825 (1994)
Thomas, J., concurring in judgment
matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated." McGill v. Duck-worth, 944 F. 2d 344, 348 (CA7 1991). Today, in an attempt to rectify such unfortunate conditions, the Court further refines the "National Code of Prison Regulation," otherwise known as the Cruel and Unusual Punishments Clause. Hudson v. McMillian, 503 U. S. 1, 28 (1992) (Thomas, J., dissenting).
I adhere to my belief, expressed in Hudson and Helling v. McKinney, 509 U. S. 25 (1993) (Thomas, J., dissenting), that "judges or juries—but not jailers—impose 'punishment.' " Id., at 40. "[P]unishment," from the time of the Founding through the present day, "has always meant a 'fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him.' " Id., at 38 (quoting Black's Law Dictionary 1234 (6th ed. 1990)). See also 2 T. Sheridan, A General Dictionary of the English Language (1780) (defining "punishment" as "[a]ny infliction imposed in vengeance of a crime"). Conditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence. See Helling, supra, at 42 (Thomas, J., dissenting). As an original matter, therefore, this case would be an easy one for me: Because the unfortunate attack that befell petitioner was not part of his sentence, it did not constitute "punishment" under the Eighth Amendment.
When approaching this case, however, we do not write on a clean slate. Beginning with Estelle v. Gamble, 429 U. S. 97 (1976), the Court's prison condition jurisprudence has been guided, not by the text of the Constitution, but rather by "evolving standards of decency that mark the progress of a maturing society." Id., at 102 (internal quotation marks omitted). See also ante, at 833-834; Helling, supra; Hudson, supra. I continue to doubt the legitimacy of that mode of constitutional decisionmaking, the logical result of which,
859
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007