Cruel and Unusual Construction: The Eighth Amendment as a Limit on Building Prisons on Toxic Waste Sites

Over the last four decades, the United States has witnessed the emergence of a leviathan prison industrial complex. Eager to restore stagnating economies previously driven by coal‐mining operations, many rural communities sought to take advantage of this prison‐building boom through bids for facility construction contracts. As a result, a startling number of prisons have been built on active and former coal mines, coal ash dumps, and other environmentally hazardous locations. Long‐term confinement in facilities located in, on, and near such locations poses severe and demonstrable health risks to the inmate populations through exposure to polluted air and water twenty‐four hours a day, seven days a week, for the duration of their sentences.

This Comment examines the doctrinal promise of a lawsuit to enjoin the construction of prisons on toxic waste sites based on the Eighth Amendment, before inmates are exposed to dangerous and sometimes fatal living conditions. Specifically, it asks whether planning to build a prison in a location bearing environmental risks known to cause serious illness and death constitutes cruel and unusual punishment. Despite certain obstacles, this Comment contends that the Supreme Court’s conditions‐of‐confinement jurisprudence bears the weight of such a claim. Due in large part to the tireless efforts of prisoners’ rights organizations and activists, there is ample evidence demonstrating that inmates confined in facilities on or around toxic waste sites are developing exposure‐related illnesses at alarming rates. Accordingly, planning to build a prison in a location with identical risks raises serious concerns under the Eighth Amendment.

The import of this situation was perhaps best articulated by the Human Rights Defense Center, a prisoners’ rights organization actively engaged in putting an end to this disturbing trend: “If we can recognize the problem with forcing people to live in close proximity to toxic and hazardous environmental conditions, then why are we ignoring prisoners who are forced to live in detention facilities impacted by such conditions?” This Comment seeks not only to recognize the problem with forcing people to live in such conditions, but also to engage with a potential, albeit imperfect, solution.

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