Eaten Alive: Inaction as a form of Cruel and Unusual Punishment in State Jails and Prisons



If you have watched a lot of Law and Order, cop shows, or even viral TikTok videos involving the police, you have probably heard the phrase “this violates my constitutional rights.” You might have also heard people on the news say “this is cruel and unusual punishment” when something outrageous happens to someone at the hands of the State. The truth is that everyone who faces charges does have a constitutional right under the Eighth Amendment to not have cruel and unusual punishment inflicted upon them. This right has been incorporated to the states through the Fourteenth Amendment, which means whether someone is charged with a crime on the state or federal level, they have this constitutional protection.

But what rights exactly does the cruel and unusual punishment clause protect? Originally, the literal meaning of the text was likely to prevent coercive torturing of criminal defendants, which was a problem that occurred in the old European inquisition proceedings. But the right to not have cruel and unusual punishment inflicted has now been expanded to contemplate a broad range of constitutional protections for people being charged with crimes from what is excessive bail to what drugs can be used to execute inmates, to malicious beatings and unnecessary infliction of pain under rationale in Ingraham v. Wright and Whitley v. Albers. These cases followed a fact pattern in which the State (or its officers) took an action to inflict cruel and unusual punishment. However, this right has also been expanded so that the infliction of cruel and unusual punishment can come from an officer’s lack of action. For example, the court has stated that not extending treatment to a severely injured or ill prisoner can constitute cruel and unusual punishment, not effectively preventing overcrowding in California prisons was deemed a violation of the cruel and unusual punishment clause, and leaving a prisoner handcuffed in the sun for several hours without bathroom breaks was also considered an infliction of cruel and unusual punishment. Among other considerations, in these latter cases, the court considers whether there was a substantial risk of harm that the State was aware of and whether the pain inflicted by the State is unnecessary and wanton (also defined in Hope v. Pelzer as inflictions of pain without penological justification) in order to determine whether cruel and unusual punishment has been inflicted. This recent pattern of cases seems to demonstrate that failing to protect an inmate from the dangers of natural elements while they are imprisoned can violate a prisoner’s Eighth Amendment rights.

However, despite the cruel and unusual punishment clause being more broadly interpreted in recent years, prisons across the United States continue to fail to protect prisoners from dangerous natural elements. For example, a large Utah state prison recently purposefully relocated from a safe location to an area of the state known to be a mosquito-infested swamp land. The Utah prison relocated near peak mosquito season without providing bug repellant or even allowing inmates to purchase mosquito repellant with their own money. This led to inmates skipping meals and avoiding their statutorily-protected outdoor time altogether; this lack of providing repellant or taking any real action to combat the mosquitoes took place over several months, with inmates remarking to family members that they were being “eaten alive” by the mosquitoes. The prison’s main response was to plane-dump gallons of likely harmful pesticides over the prison and surrounding areas and to consider a plan to employ inmates in raising Mosquitofish on and around the prison. The prison’s decision to knowingly move inmates to a mosquito-infested area, despite there being cases of West-Nile virus from mosquito bites in the area, along with not providing proper protective gear for the prison, certainly would seem to fit the bill of causing unnecessary suffering and would seem cruel and unusual by failing to protect inmates from potentially dangerous natural conditions over a period of several months.

This type of bug infestation issue is, unfortunately, not unique to Utah prisons this year. A Georgia inmate was recently found dead and covered in bug bites in a filthy county jail cell. This death was preceded by multiple warnings and complaints of the county prisons being infested with lice, filth, and skin mites, with authorities failing to remedy the issues. Surely, this lack of action caused undue suffering and would seem to constitute cruel and unusual punishment greater or equal to being left in the sun or being housed in an overcrowded prison. Yet, despite the constitutional precedent, no Eighth Amendment claim appears to have been successfully brought against these institutions for this wanton lack of care for the wellbeing of incarcerated individuals at this time. It is imperative that the courts or the legislature take action to prevent these and similar conditions in prisons and jails so that these institutions are held accountable for violating the rights of incarcerated individuals.


Suggested Citation: Loriana Goulding, Eaten Alive: Inaction as a form of Cruel and Unusual Punishments in State Prisons, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 28, 2023).


Loriana Goulding is a second-year J.D. candidate at Cornell Law School. She obtained her undergraduate degrees in Psychology and Korean from Brigham Young University. Prior to law school, Loriana completed an internship with the Utah Department of Corrections’ inmate treatment programs and worked as a mediator for business disputes.

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