Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DONALD L. HELLING, et al., Petitioners v. WILLIAM McKINNEY

No. 91-1958

January 13, 1993

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:13 a.m.

APPEARANCES:

FRANKIE SUE DEL PAPA, ESQ., Attorney General of Nevada, Carson City, Nevada; on behalf of the Petitioners.

JOHN G. ROBERTS, JR., ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae, supporting the Petitioners.

CORNISH F. HITCHCOCK, ESQ., Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

10:13 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in number 91-1958, Donald L. Helling v. William McKinney. General Del Papa.

ORAL ARGUMENT OF FRANKIE SUE DEL PAPA ON BEHALF OF THE PETITIONERS

MS. DEL PAPA: Mr. Chief Justice, and may it please the Court:

Our Nation's prisons are dangerous places. We take our most troubled and troublesome citizens, we put them behind walls for our protection and their rehabilitation. We do so in structures and under rules designed for security, ours and theirs, then we ask those who manage them to somehow make it work.

It is a difficult, complex job; one in which the most routine daily decisions can have serious, even lethal consequences. It is in recognition of those consequences that 35 States, the United States District of Columbia, Puerto Rico, and three territories, ask you to reverse a Ninth Circuit opinion that is not only in direct conflict with opinions of other circuit courts, but severely impacts the serious decisions confronting the men and women who run our Nation's over 1,300 prisons.

The respondent in this case was convicted of murder and is serving his sentence in the Nevada prison system. In 1987 he filed a civil rights complaint alleging he had shared a cell with a series of inmates who were heavy smokers and that prison officials had done nothing to separate smoking and nonsmoking inmates. He also alleged certain medical symptoms as a result of exposure to secondary cigarette smoke, and that the exposure constituted cruel and unusual punishment.

He sought an injunction prohibiting prison administrators from housing him with inmates who smoke and asked for compensatory and punitive damages. That complaint launched the case that is before the Court today.

The question is whether, as the Ninth Circuit has held, the respondent has stated a valid Eighth Amendment claim. Even --

QUESTION: General Del Papa, has Nevada changed its regulations since the institution of the lawsuit, concerning -- insofar as they would affect placement of prisoners for smoking or nonsmoking purposes?

MS. DEL PAPA: No, Justice O'Connor. The -- the -- what was in existence at the time of this initial complaint was an informal policy of accommodation in terms of whenever practical.

QUESTION: And now that's embodied in written policies --

MS. DEL PAPA: That's correct.

QUESTION: -- That are consistent with the former informal policies.

MS. DEL PAPA: That's correct.

QUESTION: And this particular petitioner, I mean plaintiff in the suit below, has been moved since the institution of the lawsuit.

MS. DEL PAPA: That's correct.

QUESTION: And is he presently being housed in a single cell?

MS. DEL PAPA: Yes.

QUESTION: Do you think there's some reason to think that he may be moved again during his incarceration and again subjected to secondary smoke?

MS. DEL PAPA: The underlying facts are capable of repetition, yes. Because at any time -- of course, classifications are reviewed through administrative regulations at least every 6 months. But, again, there is always the possibility of transfers. Because he is in a single cell now does not mean that he will always have a single cell.

QUESTION: Let me ask you another question while I have you interrupted. To impose liability on the State here or the prison authorities, I suppose the plaintiff has to show that the prison authority is deliberately indifferent to any condition arising from secondary smoke.

MS. DEL PAPA: Yes.

QUESTION: And was that issue ever addressed in the courts below, deliberate indifference --

MS. DEL PAPA: The --

QUESTION: -- In light of the policy of the prisons?

MS. DEL PAPA: Well, the informal policy, of course, was in place at the time. And the magistrate specifically found no serious medical need nor deliberate indifference.

QUESTION: The magistrate found no deliberate indifference.

MS. DEL PAPA: Yes.

QUESTION: And was that, then, reviewed?

MS. DEL PAPA: Yes.

QUESTION: That finding?

MS. DEL PAPA: Yes.

QUESTION: And what was the finding on review?

MS. DEL PAPA: The finding on review -- the court of appeals attempted to distinguish between a serious medical need of a present condition and a future condition.

QUESTION: The deliberate indifference finding, was that ever addressed on review?

MS. DEL PAPA: Well --

QUESTION: That there was no deliberate indifference.

MS. DEL PAPA: The court of appeals on -- wanted to remand this case because of the -- the way that -- well, they first, of course, found that they disagreed with -- I'm sorry.

QUESTION: I guess I'm trying to find out whether the court ever addressed the -- the finding that there was no deliberate indifference. Because it seems to me that if there is no deliberate indifference, there is no need to look at the objective question at all.

MS. DEL PAPA: Well -- and we would argue that, yes, they did review the deliberate indifference because they did find no abuse of discretion on -- on the part of the magistrate. However, it's complicated by the fact that she had found no constitutional right to a smoke-free environment, where they had found a different claim here. And -- and it is our contention --

QUESTION: Is there any need to address the objective question if -- if it's clear that there was no deliberate indifference?

MS. DEL PAPA: No.

QUESTION: Well, didn't the deliberate indifference go to two different issues? One, whether he had a medical condition that had not been adequately taken care of. And secondly, whether they were deliberately indifferent to the whole smoking policy. Weren't they separate in that magistrate -- before the magistrate, or am I wrong on that?

MS. DEL PAPA: I don't -- I don't believe so.

QUESTION: I see.

QUESTION: Well, didn't the magistrate find that there was really no problem unless the prisoner had some symptoms, some active symptoms of -- that would require medical treatment? That just a latent threat, as yet unrealized, just wouldn't state a cause of action. And on that basis they found no deliberate -- no -- no indifference because there weren't any symptoms.

MS. DEL PAPA: There were symptoms, Justice White, that --

QUESTION: All right. But, anyway, whatever the symptoms were, they weren't -- he found that they were not deliberately indifferent.

MS. DEL PAPA: Yes.

QUESTION: Well, the point is that the deliberate indifference finding of the magistrate was connected with the -- with the substantive finding that there's no -- that there's no problem so long as you don't have current symptoms.

MS. DEL PAPA: Yes.

QUESTION: That you don't have a right to -- so you can't really say that the rest of the case goes away by reason of the deliberate indifference finding.

MS. DEL PAPA: Well, we would argue that the -- the exposure to the environmental tobacco smoke in the first instance does not meet with the objective component. And, of course, I realize you can take these and there's no set way in taking these.

QUESTION: No, but -- but the problem is if -- if this case comes to us with the finding that, in fact, the State was not indifference -- was not indifferent to this -- to this prisoner's desire to have a nonsmoking roommate and was not indifference to his -- was not indifferent deliberately to his desire to -- to have clean air, entirely clean, free of cigarette smoke, then, as Justice O'Connor says, we don't have to reach the other issue.

But I did not understand the magistrate to have said oh, the State was very -- very concerned about this prisoner's right to clean air. I thought the magistrate said he has no right to clean air. Now, he has a right, if he has symptoms, to be given some consideration, but they did that. They were not deliberately indifferent to that. Now, is that a fair description of what --

MS. DEL PAPA: Yes.

QUESTION: Okay.

MS. DEL PAPA: That's a very fair description.

First let us say that we share concern that exposure to environmental tobacco smoke is a potential health hazard. We fully recognize and appreciate the EPA's recent report giving ETS class-A status as an environmental hazard. But we do not agree that exposure to it rises to the level of an Eighth Amendment violation. Giving it that status has considerable consequences.

QUESTION: Even though it's five packs a day.

MS. DEL PAPA: Yes.

QUESTION: Do you smoke, Madam Attorney General?

MS. DEL PAPA: No.

At worst it lays the groundwork for a constitutional burden impossible for prison authorities to carry out, recognizing the realities of our Nation's prison system. At best it is an unwarranted and unwise constraint on the discretion of our prison administrators, who must daily balance health and security concerns in the management of these complex and inherently dangerous institutions.

Society continues to debate the relative rights of smokers and nonsmokers, and the health concerns relating to the use of tobacco. Even as that process continues to unfold, the Ninth Circuit has mistakenly determined that the debate is over, and it has provided a constitutional right for prisoners establishing a health standard which our Nation's legislatures have so far expressly rejected, a goal that those of us on this side of those prison walls do not --

QUESTION: But is that really a fair interpretation of the court of appeals? As I understood it, they remanded and now there're two issues to be decided in the district court proceedings. One, whether objectively the harm is sufficient and secondly, the deliberate indifference problem. Have they really decided that -- that the plaintiff will win on remand?

MS. DEL PAPA: Well, what the Ninth Circuit has done, I would contend, is that they have recognized a different standard than what this Court's standard is for Eighth Amendment violations by -- they framed the question below in terms of whether such -- such exposure posed an unreasonable risk of harm, but that's not the -- the standard that this Court applies to Eight Amendment violations.

QUESTION: Well, do you take the position that the warden, if he wanted to, could deliberately impose an unreasonable risk of harm to a nonsmoker by putting him in a cell where he knew there would be a serious risk of -- of harm?

MS. DEL PAPA: I'm sorry, I don't understand the question.

QUESTION: Do you take the position that the warden could deliberately house a person with a smoker knowing that that person would -- would have a very serious risk of harm from the smoking?

MS. DEL PAPA: We take the position that, again, because there is an accommodation policy and because smoking is of a secondary concern -- smoking is considered to be a personal preference. There are other concerns that the warden would have to take into consideration first before reaching and trying to accommodate the -- the smoking preference. Such things as --

QUESTION: Does he have any duty at all, under the Constitution, to accommodate a smoking concern that the plaintiff -- the prisoner alleges is going to cause serious harm --

MS. DEL PAPA: Not --

QUESTION: That hasn't yet materialized. It's latent and future.

MS. DEL PAPA: Not under the Constitution.

QUESTION: No duty whatsoever. And the second question, could he deliberately house an inmate with a smoker as a punitive measure; say you've been misbehaving, I think I know a way - that I'll straighten you out for the future.

MS. DEL PAPA: That, of course, would be in violation of Nevada law. It would be considered retaliation.

QUESTION: Well, would it violate the Federal Constitution, though, do you think?

MS. DEL PAPA: No.

QUESTION: Well, do you agree that deliberate indifference to an unreasonable risk of serious harm would violate the Eighth Amendment?

MS. DEL PAPA: The problem with what you have stated, Justice Kennedy, is the unreasonable risk of harm portion of that. Because it's -- it's very difficult to determine, and certainly I would agree that if you had a constitutional right and -- and then you had -- and thereby completing the objective component of the Wilson v. Seiter test, and then you showed deliberate indifference, then, yes, you would have -- that's where you would have the problem.

QUESTION: Well, I -- I just want to make sure we are agreed on the standard. You do agree, then, that deliberate indifference to an unreasonable risk of serious harm would violate the Eighth Amendment?

MS. DEL PAPA: Well I --

QUESTION: That's the correct legal standard for us to apply.

MS. DEL PAPA: No, Your Honor, that is not the correct legal standard, because this Court's standard, in terms of conditions of confinement cases such as Rhodes v. Chapman, is instead inhumane conditions. I think that you would first have to consider whether or not this is a -- a serious deprivation of life's minimal necessities, and then you would reach the question of what is cruel and unusual punishment.

And, of course, all of that ties back to the question of what are society's standards. In -- today in the society that we live in, smoking is accepted. All of us are exposed to environmental tobacco smoke.

QUESTION: Well, we can -- we can argue about what is or is not a serious risk of -- of harm. But I'm -- I'm simply wondering about your standard that you're applying.

MS. DEL PAPA: Well, the standard that I believe should apply is this Court's standard with reference to Eighth Amendment cases, and not an unreasonable risk of harm standard that the Ninth Circuit attempted to apply in the original case.

QUESTION: Well, suppose an inmate has a -- has a long history of violent assaultive behavior on his cellmates. And suppose we assume that it's an unreasonable risk of harm to put another cell -- another prisoner in with him. Now, would deliberate indifference to that risk constitute an Eighth Amendment violation?

MS. DEL PAPA: No.

QUESTION: You can distinguish that from the case that we have before us, I suppose, in that one could certainly argue that Justice Kennedy's hypothesis poses a punishment that is perhaps not only cruel but unusual, whereas I gather one of your points is that this is not -- if it's a punishment, it's nonetheless not an unusual punishment, because people in civil society outside of the prison are exposed to pretty much the same thing all the time.

MS. DEL PAPA: Yes, Your Honor.

QUESTION: Well, what does the -- does the record show the number or percentage of prisoners in this particular prisoner who smoked?

MS. DEL PAPA: Yes. It has been agreed that anywhere between two-thirds and 90 percent of inmates smoke. Which, of course -- the majority of inmates in our prison systems in our country smoke.

QUESTION: General, in -- with respect to the articulation of the standard, you have said that unreasonable risk is not the appropriate way to -- to state it. But however it may be stated, whether it be stated in terms of unreasonable risk or an unreasonable deprivation of life's necessities, what is or is not reasonable is ultimately, is it not, a function to be determined under the concept of evolving decency? Is that fair to say, under our cases?

MS. DEL PAPA: Yes.

QUESTION: Who should make that determination in the first instance? Should we make it? Should a district court make it, a court of appeal make it?

MS. DEL PAPA: I would think that, again -- and what this Court has said is that the clearest and most reliable objective factor with risk is, of course, our legislative enactments. I think you would look first to those as the factors as to what society's standards are.

QUESTION: Well, they're -- they're something to look at, but my question is who should look at it? Because, for example, we -- we may indeed look at legislative enactments and I suppose -- I haven't done it, but I -- I assume we will find legislation about smoke-free zones in public buildings and so on.

But in each of those instances the legislature is dealing with people who, by and large, have some voluntary control as to whether or not they will or will not be in the smoke-free zone. So that the legislation is not, in effect, going to answer our question; it's just going to be part of the record on which the question should be answered.

And -- and I go back to the question, who should, in effect, compile that record and where should it be compiled? Are we in a position to make that judgment right here and now?

MS. DEL PAPA: I would say no, because I think that the standard of decency relative to exposure of environmental tobacco smoke in our country has not evolved. The debate is continuing.

QUESTION: Don't you agree that deliberate indifference to the obvious medical needs of the prisoner is a -- is a violation of the Eighth Amendment?

MS. DEL PAPA: If -- if you have serious existing medical needs --

QUESTION: Yes.

MS. DEL PAPA: -- Which we did not have in this instance.

QUESTION: You didn't answer my question.

MS. DEL PAPA: If -- yes, if you -- if you have deliberate indifference to serious medical needs.

QUESTION: Yes. And, now, there's an allegation in this case -- this is a pleading case, as I understand it.

MS. DEL PAPA: That's correct.

QUESTION: There's an allegation that -- that -- that housing someone, a nonsmoker with a smoker, poses a serious medical risk, and that the authorities are deliberately indifferent to it. Why doesn't that state a cause of action?

It doesn't. That's just an allegation and I - don't know whether it could be supported or not. But why doesn't that state of cause of action under the Eighth Amendment, just like a complaint alleges the water is dirty in this prison, it's giving every -- making everybody sick, and they're completely indifferent to this. That would -- wouldn't that state an Eighth Amendment cause of action?

MS. DEL PAPA: No, Your Honor.

Mr. Chief Justice, I'd like to reserve the balance of my time.

QUESTION: Very well, General Del Papa. Mr. Roberts, we'll hear from you.

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

MR. ROBERTS: Thank you, Mr. Chief Justice, and may it please the Court:

The position of the United States is that the decision below should be reversed. The reason is that exposure to secondary tobacco smoke does not satisfy the objective component of an Eighth Amendment violation. The Ninth Circuit below framed the issue as whether such exposure posed an reasonable risk of harm; that is not the Eighth Amendment standard.

What this Court has asked in its condition of confinement cases is, instead, whether there has been a, quote, serious deprivation of basic human needs or a denial of the, quote, minimal civilized measure of life's necessities, end quote.

QUESTION: Well, isn't -- isn't nontoxic air a basic human need?

MR. ROBERTS: A smoke-free cell is not a basic human need.

QUESTION: Well, how about my phraseology, nontoxic air?

MR. ROBERTS: The question under the Eighth Amendment looks to society's standards. And in society --

QUESTION: Well, let's -- before we get to society's standards -- well, maybe you are. You're saying society does or does not have an understanding that nontoxic air is one of basic -- life's basic needs?

MR. ROBERTS: Society does not have an understanding that a smoke-free environment, the toxin of second-hand smoke, to use -- in your phraseology, is a basic human need. At the very least what is condemned as cruel and unusual in prisons --

QUESTION: Who -- who should make the determination -- that kind of mixed determination of fact and value that you just stated? Should we make it in the first instance or should a district court at least take a stab at it based on a record?

MR. ROBERTS: Well, I think it's a legal question that each court presented with it along the way has an obligation to decide.

QUESTION: But it's one that -- is it one that can be decided without a factual record?

MR. ROBERTS: Yes. This Court addressed a similar question in Gregg v. Georgia, or in Coker v. Georgia, where it looked to societal standards reflected in legislative enactments to determine what society's standards would be --

QUESTION: Of course, we weren't dealing there with an issue which was sort of on the cutting edge of what society does or does not tolerate, whereas we are doing that here, aren't we?

MR. ROBERTS: If we -- if we are at the cutting edge, it seems to me then the answer is clear. The Eighth Amendment does not require that prisons be in the vanguard of a movement toward a public health ideal. They follow contemporary standards of decency, to use the formulation quoted most recently in Hudson v. McMillian.

QUESTION: Well, Mr. Roberts, why would we even have to address the question if there's no deliberate indifference to an assumed right to a smoke-free environment?

MR. ROBERTS: You would not have to address it. There is both an objective component and a subjective component; failure on either one means there's no Eighth Amendment violation.

QUESTION: And which one should be addressed first, do you suppose?

MR. ROBERTS: I don't think there's any natural priority in addressing them here. What the Ninth Circuit based its decision on was the objective component. It said the objective component may be satisfied if there's an unreasonable risk of harm. That's the issue before the Court today, and that's where we think the Ninth Circuit erred. It erred because society does not unambiguously condemn exposure to secondhand tobacco smoke in the way it must before --

QUESTION: Even if -- even if -- even assuming an unreasonable risk of harm.

MR. ROBERTS: Even assuming an unreasonable risk of harm.

QUESTION: That's what you have to really face up to.

MR. ROBERTS: That's right. The question is --

QUESTION: There's -- the case comes to us, exposure to this kind of smoke poses an unreasonable risk of harm to a person's health.

MR. ROBERTS: That's the question.

QUESTION: And -- but that just doesn't state a cause of action under the Eighth Amendment.

MR. ROBERTS: It does not. It is not the standard this Court has articulated. And the reason is --

QUESTION: What -- what about Justice White's hypothetical about the water?

MR. ROBERTS: As I understood the hypothetical, he said everyone was getting sick. That is an existing medical need; under Estelle v. Gamble it must be addressed by the prison authorities.

QUESTION: But if the -- if the allegation were there's an unreasonable risk that everybody will get sick in the next 30 days, that would not be. Is that the distinction?

MR. ROBERTS: It would depend -- it would depend on what society's standards were with respect to that risk.

QUESTION: Well, they like to drink nontoxic water and they like to breathe nontoxic air, I guess.

MR. ROBERTS: Then it would state an Eighth Amendment claim. But the fact of the matter is --

QUESTION: Wait, it would state an Eighth Amendment claim.

MR. ROBERTS: If -- yes. If it's -- if you're telling me that there's toxic water that is going to make everyone sick within the next 30 days, yes. As a society --

QUESTION: But not toxic smoke.

MR. ROBERTS: Not smoke, because there's a --

QUESTION: Why not? What's the difference?

MR. ROBERTS: The difference is that as a society we don't accept or tolerate the notion that everyone will drink water that's going to make people sick within 30 days. We do accept and tolerate the condition that people are exposed to secondary tobacco smoke.

QUESTION: What about asbestos --

MR. ROBERTS: Asbestos --

QUESTION: -- In a prison? The allegation says that this prison is loaded with asbestos. It's a serious medical risk.

MR. ROBERTS: And that may well state a Eighth Amendment violate, because we, as a society, don't treat exposure to asbestos as a matter of personal preference. When we go to a restaurant they don't ask do you want the asbestos section or the nonasbestos section.

(Laughter.)

MR. ROBERTS: They do ask do you want smoking or nonsmoking. Smoking is a matter of personal preference, and exposure to secondary tobacco smoke also a matter of personal preference. And the first thing that --

QUESTION: Well, it isn't in the -- it isn't in the prison a matter of personal preference. They -- you -- the prisoner goes where he's put.

MR. ROBERTS: Exactly. And it's not entirely up to our preferences --

QUESTION: It doesn't say you want smoking or nonsmoking in the prison.

MR. ROBERTS: In our society it's not entirely up to personal preferences to move away either. OSHA estimates that 77 percent of nonsmoking Americans are exposed to secondary tobacco smoke at work. Many Americans are exposed involuntarily to secondary tobacco smoke at home.

If a parent smokes and exposes children to secondary tobacco smoke, we don't brand that as child abuse. It's difficult to imagine how what we allow parents to do to children in the home is somehow cruel and unusual when done to a convicted felon in prison.

QUESTION: Mr. Roberts, as I understand it this case was -- resulted in a directed verdict by the magistrate at a -- at the close of the plaintiff's evidence.

MR. ROBERTS: Yes, Your Honor.

QUESTION: Following up on Justice Souter's -- anyway, what evidence was introduced, if any, before the magistrate as to the -- the kind of things we're talking about right here?

MR. ROBERTS: Because the inmate's complaint was not framed the way the Ninth Circuit framed it, the evidence at the trial concerned his existing medical needs and the -- and the evidence the State would have submitted concerned the steps they had taken to accommodate that. There was not evidence about the general public health issue.

QUESTION: And the plaintiff offered no such evidence.

MR. ROBERTS: The plaintiff had pamphlets from various organizations that he wanted to admit into evidence, and that was not admitted by the magistrate.

QUESTION: And those pamphlets, as I understand it, had to do with smoking by -- the dangers -- dangers to the health of the smoker --

MR. ROBERTS: Exactly.

QUESTION: -- And not to second -- were not addressed to secondary smoking.

MR. ROBERTS: Exactly. But I want to emphasize that the issue under the Eighth Amendment is not the state of medical knowledge or a public health ideal. The fact that the surgeon general tells us that exposure to secondary tobacco smoke is harmful does not dispose of the Eighth Amendment issue. The issue is societal standards and, for better or for worse, we as a society do not always follow the surgeon general's guidance about what is most healthful.

The surgeon general tells us we eat too much red meat and too many eggs and that that increases our risk of heart disease, but we still do it. And the same is true with respect to exposure to secondary tobacco smoke.

QUESTION: Well, should we decide this case simply on the basis that the prisoner attempted to make out a serious risk to his own health and that he did not?

MR. ROBERTS: I think it can be disposed of in -- on that basis.

If you compare the prisoner's complaint, the pretrial stipulation, with the Ninth Circuit opinion, you'll think you've seen two different cases. Because the prisoner's complaint was urging either a completely smoke-free environment and failure to address his serious medical needs, and he lost on both counts. The Ninth Circuit reshaped the complaint to state a very different claim and then proceeded to decide that different claim.

QUESTION: But that's what's -- that's the one that's before us, though, isn't it?

MR. ROBERTS: Well, in the Ninth Circuit's --

QUESTION: It is kind of a pleading case, and whether the Ninth Circuit, in effect, has reshaped the complaint into a cause -- an actionable cause of action.

MR. ROBERTS: That's correct.

QUESTION: Yeah.

MR. ROBERTS: The Ninth Circuit judgment, which we think should be reversed --

QUESTION: Do you think we have a live case here?

MR. ROBERTS: Yes, Your Honor. The -- the prisoner is completely subject to being moved to a smoking cell, having a smoker moved into his -- into his cell. The standard --

QUESTION: But you didn't -- I was just going to say you didn't urge review on the grounds that this was really a procedural case, that the Ninth Circuit shouldn't have reached the issue of the standard, given the fact that the prisoner had not either raised an allegation or offered evidence that would make it appropriate to develop the standard.

MR. ROBERTS: No. Our position is that the Ninth Circuit erred in its articulation of the standard under the Eighth Amendment --

QUESTION: Yeah.

MR. ROBERTS: -- And that should be reversed. The standard is, as reiterated last year in Hudson v. McMillian, contemporary standards of decency. Contemporary means two things. One, it means we're not bound by what was barbarous in the eighteenth century when the Eighth Amendment was drafted, but it also means we're not bound by the public health ideal of the future to which we may or may not be moving.

Under the surgeon general's guidance and the guidance of EPA, they say we should change how we treat secondary tobacco smoke. That means we're not there yet, and if we're not there yet --

QUESTION: Well, they go further than that and say it imposes -- secondary smoke imposes a serious health risk.

MR. ROBERTS: Yes. And it does, and they say society should change how it treats that. That means that it cannot be cruel and unusual because society's standards tolerate it. That's the problem the surgeon general and EPA have identified.

QUESTION: But, by your asking us to address that issue, insisting, almost, that we do, it seems to me you are endorsing the way the Ninth Circuit treated the pleadings in this case and the proof in this case, and I had thought there was a serious question as to whether or not this was even raised?

MR. ROBERTS: I think it was not raised, and I think the case can be disposed of on that basis, saying that the Ninth Circuit went too far in liberally construing the complaint.

QUESTION: Although that was never suggested to us at the certiorari stage.

MR. ROBERTS: I think in the -- the State's papers did suggest that the Ninth Circuit went too far in construing what the issue was in the complaint.

Thank you, Your Honor.

QUESTION: Thank you, Mr. Roberts. Mr. Hitchcock, we'll hear from you.

ORAL ARGUMENT OF CORNISH F. HITCHCOCK ON BEHALF OF THE RESPONDENT

MR. HITCHCOCK: Thank you, Mr. Chief Justice, and may it please the Court:

Before addressing the question presented on the merits, I would like to take a few moments to respond to the questions from the Court about the present nature of the controversy, particularly some of the opening questions from Justice O'Connor.

2 years ago the court of appeals ruled that Mr. McKinney is entitled to seek an injunction regarding the conditions of his confinement at the Nevada State Prison in Carson City. Shortly after that, as the questioning indicated, he was moved to a new facility where he has been located for the last 2 years, or assigned for the last 2 years.

Second, he no longer shares a 6 foot by 8 foot cell with somebody who smokes five packs of cigarettes a day, which amounts to one cigarette every 10 minutes during every waking hour. And third, there is a new written policy that is far more explicit than the informal practice cited before.

And I'd like to respond more specifically to Justice O'Connor's question, because I think it is not entirely accurate to say that the new written policy -- which, by the way, took effect prior to trial in this case, although we were not told that until the reply brief stage in this case -- is a little more explicit.

The informal policy previously in question is cited in the Joint Appendix at page 22, paragraph 4, the affidavit of Donald Helling, who was the classification officer at the time. Now, this affidavit was not part of the record at trial. It was submitted in connection with the preliminary injunction papers. Mr. Helling was planning to testify, as I understand it, but he did not, in fact, testify. And this was not before the magistrate who heard the case with consent of the parties when she directed the verdict.

And if one looks at the paragraph in question, it does not mention smoking as such. What it talks about is considering various factors, including the personal desires of the inmate, quote unquote, which are taken into account, insofar as practical, in deciding who rooms with whom.

Now, the policy in question that took effect -- well, let -- to go chronologically, the pretrial stipulation under which this case was presented to the trial court and to the court of appeals states -- and I'm quoting now from page 51 of the Joint Appendix. Paragraph 8 at the top of the page states as a stipulation signed by the Deputy Attorney General of Nevada, who was handling the case, and I quote: There are no restrictions on smoking in the prison's housing units, classroom or library.

No restrictions in the housing units. The official policy which was adopted subsequently, and which we first learned about when the solicitor general filed his brief, indicates three factors that I think are relevant here to the question of whether -- of the state of the present controversy.

First of all, smoking by inmates is now prohibited throughout the Nevada State Prison System during meetings, counselling sessions, or visits with a doctor. Secondly, no-smoking areas are explicitly created in common areas such as classrooms, libraries, the gym, chapels, dining areas, and the infirmary.

And third, with respect to housing questions Nevada prison officials are now required expressly to make, and I quote, reasonable efforts, unquote, to accommodate nonsmokers and smokers alike. And if a nonsmoker such as Mr. McKinney has to be double celled and if he asks for a nonsmoking cellmates, the rules require, and I quote, accommodations will be made as necessary consistent with security considerations and space availability, unquote.

So this -- this is the rule that's now in effect, and has been since 1989. As I mentioned a moment ago, we and the solicitor general assumed that this was a 1992 policy, but as the State points out in its reply brief, in fact it took place on October 1st, 1989. The relevant copies, which change only minor -- in minor details from year to year, have been lodged with the clerk and --

QUESTION: You say it took place in October, 1989. The regulation was issued then.

MR. HITCHCOCK: The regulation was issued on September 28th, 1989. And it states effective October 1, 1989, smoking will be regulated as follows. That -- that's in the additional materials that were lodged.

QUESTION: In your view, do those regulations meet constitutional requirements?

MR. HITCHCOCK: In our view, if those standards are followed in the prison system, and I -- we submit that it would be very difficult for a prisoner to challenge the conditions of confinement to satisfy the subjective prong if the prison official is saying we're doing all that we can consistent with the considerations, with balancing of the interests. Then I think under Wilson v. Seiter it would be very difficult for a prisoner to say you are being deliberately indifferent, you are not demonstrating the requisite subjective intent that it needed for an Eighth Amendment violation.

QUESTION: So there would be no basis for injunction currently.

MR. HITCHCOCK: There would be no basis for an injunction under that situation.

QUESTION: And there's no question about damages in this case.

MR. HITCHCOCK: Well -- well, there's no question -- but let me -- let me answer the question a little more specifically, if I may, Justice White. You are correct that there is no question as to damages here. The Ninth Circuit held -- affirmed a denial of damages.

QUESTION: Yes.

MR. HITCHCOCK: I think -- and let me emphasize this point because it goes to Justice Kennedy's question as well as your own. If the policy is in effect and if it is being implemented, if it's being followed, then I think the prisoner would have a difficult situation.

If the complaint is, yes, there's this policy, but they're ignoring it, they're not celling me -- there's three cells down there where they could give me a cellmate and they're not doing it, or they're not having no-smoking areas, then I think the question of subjective culpability would still be an open issue.

QUESTION: And you don't think that that's likely. You don't think that the prison's objections to this whole notion is -- is based upon the fact that, of course, you're going to have claims of that sort. If the whole thing rests upon whether you're doing your best, they're going to say well, gee, there are a lot of people that you could have celled me with instead. That'll always be an available claim, won't it?

MR. HITCHCOCK: It depends. If -- if the crowding situation is as bad as the State is suggesting, then perhaps a prisoner will not be able to make the claim. I think --

QUESTION: Well, it's a lawsuit all the time, and at least in our cases you have to have a prisoner who -- who, you know, is -- has been beat up or who -- who is -- is physically very ill. But under -- under this rule any prisoner can -- can say, gee, I -- you know, I want a new roommate.

MR. HITCHCOCK: Well.

QUESTION: And they very often want new roommates for quite other reasons, don't they?

MR. HITCHCOCK: Yes. And in this case Mr. McKinney's concern has, in fact, been accommodated. It might affect a number of prisoners, as, for example, the drinking water case Justice White posited.

I'd like also to respond to the question about --

QUESTION: Could I -- could I --

MR. HITCHCOCK: Yes.

QUESTION: Could I -- why wouldn't it that -- why, if this new regulation is a -- is to be taken seriously, I would suppose we might vacate the judgment below and remand for reconsideration in light of this new regulation in terms of whether there's anything left of the lawsuit as far as an injunction is concerned.

MR. HITCHCOCK: I think that would be a sensible resolution. I mean, for example, the Chief Justice asked the question what about the conditions at this prison. The lawsuit in question challenges conditions at a prison to which he is no longer assigned, and where there's no evidence in the record.

So I -- I think, as some of the questions by Justice Souter were asking, the question really in this case is who should decide, in the first instance, what is involved in this case, what the facts are --

QUESTION: Well may I -- may I ask a question there?

MR. HITCHCOCK: Yes, sir.

QUESTION: Shouldn't counsel for the -- you, I guess you, decide whether you've got a lawsuit that's worth pursuing at this point in time?

MR. HITCHCOCK: Counsel should. Let me explain the situation there. Mr. McKinney has obtained the services of an attorney out in Nevada who will represent him in proceedings on remand in this case. As appellate counsel in this case, I have been unable to try to determine exactly what the conditions are he's presently complaining of.

His concern at the present time is with conditions at the Ealey State Prison where he is presently housed more so than the conditions back at the former prison where he's only returned for several weeks. I think, as cases like Lewis v. Continental Bank and the Differdorfer case suggest, when there's been a material change of the sort that's involved here, the appropriate resolution is to let the trial court sort things out in light of the developments.

I mean, for example, if we had known --

QUESTION: Yes, but we're not in the habit of announcing constitutional rules in cases that may be totally hypothetical and speculative and nobody really intends to go to trial in the case.

MR. HITCHCOCK: Well, that is correct. But the problem is -- is as appellate counsel 2,000 miles away, I am unable to do the sort of factual and legal research that would be necessary in order to frame either a new complaint or an amended complaint that would take account of the fact that there is this policy that has taken effect, as well as the fact he's no longer at the prison that he filed suit from.

QUESTION: No, but if the case were simply dismissed at this point, I don't think there'd be anything that would prevent him from bringing a new lawsuit saying where he now is he doesn't like the situation either.

MR. HITCHCOCK: That -- that is correct. The court could simply dismiss it.

QUESTION: Litigating about what happened 2 years ago --

QUESTION: And this sort of -- this sort determination that you're referring to is not made by us on the basis of the preference of -- of an individual party. It's based on, you know, theories of mootness and controversy and that sort of thing.

MR. HITCHCOCK: Well, that -- that's absolutely correct, Mr. Chief Justice. What we're dealing here, really though, is a situation where there was a development, a factual development, which, had we known about it before the -- before the petition had been granted, we might have been able to address and the Court might have decided to see how the issue plays out in light of Wilson v. Seiter. This is the first opportunity, frankly, we've had to raise that question, which is why I'm doing it at the time.

QUESTION: Are -- are you saying the case is moot? Are you acknowledging the case is moot?

MR. HITCHCOCK: My client is unwilling to concede mootness or to give up the injunction. What I'm saying is that I cannot, from Washington, D.C., do the type of investigation. I think that -- that it would be needed to say precisely --

QUESTION: You're saying you don't know that the case is not moot.

MR. HITCHCOCK: It may be moot, it may not be moot. I cannot stand before the Court and say that if I had to draft a new complaint about the conditions at Ealey, this is what I would say. I think -- the case has gone on for 6 years now. The State knew about the change in this case between the time of the stipulation and between the time of trial. It chose not to tell anybody that there was now a written policy that deals with this until we got to the reply brief stage.

And under the circumstances, as Justice Stevens pointed out, you could simply say we're going to dismiss and let Mr. McKinney bring a new case, if he chooses to do so. I think under the circumstances of the case, though, the magistrate being familiar with it and whatnot, it might be the preferable disposition, as in Lewis v. Continental Bank, to simply send it back and say, okay, is there still -- let the trial court, who can take facts, figure out what's left of the case in the light of --

QUESTION: You don't -- you perhaps don't consent to -- you -- you may be -- not be in any position to consent to -- to -- or to urge us to do that, but I suppose we could -- but you did say it might be -- from our point of view it might be a sensible thing to do to remand to the court of appeals.

MR. HITCHCOCK: Or -- or to have the court of appeals remand to the trial court.

QUESTION: Why not let the court of appeals decide what to do with it?

MR. HITCHCOCK: Well, the court of appeals in this case, I think, did in its second opinion. What the court of appeals -- when the Court -- this Court remanded for consideration in light of Wilson, the court of appeals said, all right, Wilson adds an -- well, adds or clarifies an element that has to be proven, and we're going to send it back to the district court since the case is at the pleading stage --

QUESTION: Well, but, yeah -- but we're going to ask them to reconsider it in the light of the -- of the changed regulations.

MR. HITCHCOCK: Yes.

QUESTION: They did not know either about the changed regulation or about his transfer.

MR. HITCHCOCK: We advised the court of appeals the second time around that he had been transferred and had a no-smoking cellmate. The - the State did not advise the court of appeals. Ironically, the latest version was adopted the same day as the supplemental briefs in this case. They did not tell them, by the way we have a new written policy in this case that you might want to tell the trial court to consider in addition.

I'd like to -- to pick up another question Justice O'Connor asked before about the finding of a deliberate indifference. It is certainly correct that, as the trial court viewed the issue, there are two questions. One, deliberate indifference to existing conditions and two, the question of whether there was a constitutional violation of the broader sort that the court of appeals recognized.

The court of appeals decided quite explicitly, and this is at pages -- see 38 and 39 of the Joint Appendix, that there was no deliberate indifference as to the present conditions in which Mr. McKinney was being confined. But because there was no evidence in the record at trial as to the future conditions, the finding of deliberate indifference does not extend to the second claim.

And I would point out, as we noted at pages 16 and 17 of our brief, the United States and all the State amici agree with us, that the subjective element which underlies deliberate indifference did not come into play here.

What the magistrate -- the way the magistrate viewed the case -- and this, again, is at pages 41 and 42 of the Joint Appendix. At the summary -- was at the summary judgment stage, it was not appropriate to grant summary judgment to the State because, in her view, the question was whether -- was to what extent is Mr. McKinney currently suffering from some illness. In her view prior to Wilson, Eighth Amendment violations turned on the seriousness of the particular complaint.

And when at trial, she concluded, based on the evidence, that there was nothing presently wrong with him that was not being treated, she made the finding of deliberate indifference and ruled as a matter of law that he did not have a broader claim. In our view, that the correct analogy --

QUESTION: That -- that was a directed verdict.

MR. HITCHCOCK: It was a directed verdict at the close of --

QUESTION: Of the plaintiff's case.

MR. HITCHCOCK: Yes. And if I can respond to the earlier question, Mr. Chief Justice, I think that -- that Mr. Roberts raised, the question was well what did Mr. McKinney put on. Most of the exhibits dealt with complaints that he had filed.

I would point out also that Mr. McKinney, prior to trial, made a motion to have the appointment of an expert toxicologist to talk about precisely these issues. That motion, which was denied by the magistrate prior to trial but which the court of appeals said should not have been denied, asked for a -- an expert to testify on such issues as, and I'm quoting -- well, what he said was without the testimony of an environmental toxicologist, plaintiff cannot prove the effect of smoker's side-stream smoke upon a nonsmoker.

He said that he had been in touch with a toxicologist at the local university but could not pay him, and asked would you appoint someone. The court of appeals said the magistrate erred under Rule 706 of the Federal Rules of Evidence in denying that request, and said that when the case is remanded for trial the court -- the trial court should seriously consider appointing such an environmental -- environmental toxicologist.

QUESTION: Well, counsel, if the trial court were to look at the current adopted and articulated policy regarding secondary smoke and conclude that under that policy there could be no deliberate indifference, then there wouldn't be a need for taking testimony from an expert, would there?

I mean that would be the end of the case, because you have to meet two prongs.

MR. HITCHCOCK: Yes. The case may well be decided on summary judgment based on the subjective prong. The question that is presented in this case however, the only issue that the State brought up, is the question of whether the objective prong of an Eighth Amendment violation can be stated based upon the exposure to tobacco smoke that may cause a serious injury down the road.

QUESTION: Well I thought normally we tried to avoid deciding tough constitutional issues if there was some other factual nonconstitutional basis for deciding it.

MR. HITCHCOCK: That is correct, and that's why we suggested in our brief that the policy in question here, if it had been brought up at the petition stage, we could have talked about it and suggested that the best resolution would have been either to deny certiorari and let the case go back, either in the judgment or affirm -- with the judgment of the court of appeals remaining unaffected, or with instructions to consider this element as well. But we didn't know until the merit stage that there had been an explicit policy in question. And I think --

QUESTION: Mr. Hitchcock.

MR. HITCHCOCK: Yes, sir.

QUESTION: Just to talk for a minute about the issue on which we granted certiorari in this case, would you -- what is your response to Mr. Roberts assertion that it -- it would seem extraordinary to say that it's cruel and unusual punishment simply to expose someone to secondary cigarette smoke when we don't even consider it child abuse --

MR. HITCHCOCK: My answer --

QUESTION: -- For parents to do that?

MR. HITCHCOCK: Well, my answer to that, I think, will depend in turn upon the evolving standards. As we -- we pointed out in our brief the fact that, as of the time we wrote it, EPA and -- EPA was in the process of adopting a report which was finally released last week, which, in fact, classifies environmental tobacco smoke not as some annoyance to which everybody is subjected at some time in his or her life, or part of what's called in the scientific parlance, background smoke --

QUESTION: Well, EPA is sort of on the cutting edge in these things, isn't it?

MR. HITCHCOCK: No, I don't think so, Your Honor.

QUESTION: You don't think so.

MR. HITCHCOCK: No. If -- if you examine the methodology the EPA has -- and we cited the sources -- what they do is they look to the weight of the evidence. There is a -- a series of scientific papers, scientific studies, which conclusively show that EPA should, in fact -- that environmental tobacco smoke is, in fact, a Group A carcinogen of the same order as arsenic, asbestos, benzene, coke oven emissions --

QUESTION: Well, that's fine --

MR. HITCHCOCK: And simpler considerations --

QUESTION: That -- that establishes the risk and the danger, just as you can establish the risk and the danger from eating too many fatty foods. But people haven't stopped eating fatting foods, and I -- and I presume we don't have to feed people in prisons bean sprouts simply because that would be healthier.

MR. HITCHCOCK: No.

QUESTION: It's a risk that we all know about and that this society has accepted. I mean maybe it's intelligent, maybe it's unintelligent, but this society has accepted it. Now, why isn't the case -- why isn't it the case that whatever the EP says -- EPA says about the medical fact, this society has accepted this risk, as is demonstrated by the fact that it is not -- you have no cause of action for child abuse simply because you raise your child in a -- in a nonsmoke-free environment.

MR. HITCHCOCK: Well, if I could give a factual answer, one of the striking things about the EPA's study, although it's not gone into detail, is that the part of the population most susceptible to serious injuries are, in fact, children. Conditions such as asthma and other conditions, which may not have been suspected not terribly long ago, are, in fact, conditions that -- which children can, in fact, obtain serious illnesses far beyond the magnitude of the 3,000 excess lung cancer deaths a year.

So the way I would answer it is let's look at asbestos. A number of years ago one would not have thought it was child abuse to put children in schoolrooms with asbestos. One might not have thought -- one would have thought building one's home with asbestos was perfectly benign.

I think the question here -- the only question presented on the merits is whether or not a cause of action is stated based on an objective condition and whether, under Conley v. Gibson, one can say as a matter of law that there's no set of facts that could be proven which would entitle Mr. McKinney to relief.

QUESTION: How does Conley v. Gibson bear on a case that went to trial?

MR. HITCHCOCK: Because it went to trial on the separate question of whether Mr. McKinney is suffering a present injury. And let me --

QUESTION: Well, wasn't that up to Mr. McKinney, to what -- what issues he went to trial on?

MR. HITCHCOCK: It was up to trial, but -- but the -- the second claim recognized by the court of appeals turned upon his ability to produce some kind of evidence as to the long-term exposure, and I believe he protected his right by filing not one but two motions to have expert testimony, which was denied, in which the magistrate -- which the court of appeals said he's entitled to.

I think the distinction, in response to your question and other questions from the Court, Mr. Chief Justice, is that -- a distinction between a case such as Hutto v. Finney. If a prisoner -- which involved the punitive isolation from other prisoners.

If a prisoner complained on the first day of that kind of punitive isolation and a doctor said I've looked at this person, there's absolutely nothing wrong with him, one would be hard pressed to say that there was deliberate indifference to a current condition. Similarly -- but on the other hand if the condition involved his exposure after a month or several weeks or a year, that might be a situation where there was an injury.

And as the Court pointed out in Hutto, situations that are tolerable for a few days or a few weeks may be, in the Court's phraseology, intolerably cruel for a longer period of time.

QUESTION: Well, then a decision on the objective component of the cruel and unusual punishment aspect of this case would probably have more staying power and significance than a decision on the -- on the subjective.

MR. HITCHCOCK: Well, as a matter of law to guide the lower courts.

But let me talk also more specifically about that, because I think analytically the question of whether exposure to environmental tobacco smoke can, at some level, rise to an objective Eighth Amendment violation really has two subclass -- subparts to it.

The first is whether, at a general level or as a general proposition, exposure to a hazard which does not manifest itself immediately but is -- poses an unreasonable risk of a serious harm at some future point is covered by the Eighth Amendment.

That's the position that the State takes in this case, although the solicitor general, at least, does not go that far. And let me give an example of what accepting that argument would mean, and then I will suggest that this Court has not gone that far in its opinions.

Under the State's formulation in this case, let us suppose that prisoners in a prison system were given shots using the same needle. They had to share a needle, a flu shot or whatever. And let's suppose that some of the inmates sharing that needle were HIV positive and let's suppose that that would have the effect of exposing some unexposed prisoners to be getting the AIDS virus and dying a rather slow and painful death somewhere down the road.

Under that scenario the State posits that that is not cruel and unusual punishment to expose people to that risk, that the Eighth Amendment only applies if death or serious injury is -- is instantaneous or imminent, and it does not cover those types of situations down the road.

I think that argument is foreclosed, at least implicitly, by decisions of this Court such as Hutto v. Finney and Rhodes v. Chapman, particularly Rhodes where the Court cited with approval a number of lower court decisions which also involved threats of -- of imminent danger where it was not clear that somebody would be -- would be injured.

QUESTION: But again, I -- you know, I expect any doctor who -- who used needles that way would be subject to -- to a lawsuit under -- under current standards. And I assume any parent who -- who used the same needle for a series of injections to various children would be subject to some -- some legal sanction for that kind of action.

But, once again, I think if the doctor has a -- does not have a nonsmoking waiting room or if the parents smoke despite the fact that they have children, we do not consider that contrary to current standards. It may indeed be dangerous, but there are some dangers our society has not said is too much.

MR. HITCHCOCK: Well, there's --

QUESTION: Maybe it should, but it hasn't.

MR. HITCHCOCK: Well, there's -- there's a factual distinction too, Justice Scalia. I think that the exposure of children in the home to smoke during the hours the parents and children are together during the day is -- is qualitatively different than the situation complained of here, which is confinement in a 6 foot by 8 foot cell with somebody who is lighting a cigarette in close proximity once every 10 minutes of every hour during every waking hour during the day.

And even if one would not consider that to be -- well, I don't know what one might say if that was the way the children were being raised and that was the situation they were exposed to 7 days a week in a small room with a parent without the adequate ventilation.

QUESTION: There are a lot of parents with children in -- small children in small rooms. I don't know of a single lawsuit on it.

MR. HITCHCOCK: Well, again, I think the question is -- I think one can find an answer to that by looking to the severity of the risk here, where you have the risk at this level for a period of time, and I just don't -- I don't think if, also, one looks at the way society treats smoking, at least with respect to adults in a number of situations, that that is the level of exposure.

I'd like to --

QUESTION: The -- the question -- the question then becomes whether or not we can say that if -- if there's a particular risk of serious danger, we can nonetheless tolerate it because it's -- because society as a whole does.

MR. HITCHCOCK: Well, the question is at what level, and I'd like to deal with that question.

In this context the -- there are evolving standards in this direction. If I -- if one looks at cases like Enman v. Florida, Coker, Thompson, other cases where the Court has instructed to look to legislation, there is an impressive amount of legislation that, in fact, restricts smoking beyond the levels at which this case was tried.

QUESTION: How many States have enacted antismoking legislation to protect in the workplace and so forth?

MR. HITCHCOCK: There are -- 45 States and the District of Columbia have enacted restrictions in some fashion at some level.

QUESTION: So that might be some indicator of public standards of decency.

MR. HITCHCOCK: And -- and I would go one step further, Justice O'Connor. According to the -- an article in the 1991 Journal of the American Medical Association, a number of other municipalities with populations of over 25,000 have adopted their own ordinances, primarily in those States where there's no law or the law is very weak. And --

QUESTION: Of course, we don't know whether those statutes are based on the fact that they think the risk of death is so overwhelming, or just people don't like the smell of the doggone stuff.

MR. HITCHCOCK: Well, regardless --

QUESTION: I mean those laws may well be based on that. We can't say it's that society's made the judgment that -- that the risk of death is intolerable.

MR. HITCHCOCK: Well, I'm -- I'm not aware of the legislative history behind the ordinances, but I can say they do have the prohibitions and restrictions --

QUESTION: Oh, I'm sure they will all make health noises, but one doesn't know that that's the -- people do not like the smell of cigarette smoke.

MR. HITCHCOCK: Well, they do --

QUESTION: And they don't like it when they're eating and they don't like it any place they are. I don't know why that has anything to do with the -- a consensus in society that this is an unreasonable health risk.

MR. HITCHCOCK: Well, there is a consensus, I think, if one looks at the statute. And to finish up on Justice O'Connor's inquiry, the -- the JAMA article that we cited indicates that by mid-1989, and I'm quoting now, nearly all urban Americans were covered by a State or local smoking restriction.

I'd like to come back to your question, Justice Scalia, because I think there may be another distinction to separate this case from the child abuse case. The problems that we are talking about here, I think, are more serious than those that have identified with children.

The EPA pointed to lung cancer, an extremely serious, often fatal situation. The other situation which is frequently found is death by heart disease. We're talking about risks of death here that are far higher than have been recognized in many other situations. Administrator Reilly stated on Wednesday that the risk of death from lung cancer is at about 1 in 1,000 for people who have never smoked.

QUESTION: But if we found the same risk -- the same risk, the same degree that you find from secondary tobacco smoke, with respect to fatty foods, do you think that it would be cruel and unusual punishment to serve hamburgers and sausages in State prisons?

MR. HITCHCOCK: It -- it would depend at what level it was being served. If you had the kind of --

QUESTION: At the level that produces the same risk that you're concerned about from tobacco.

MR. HITCHCOCK: If -- yes. If you had a level, a risk of 1 in 1,000, which is the risk of death by lung cancer or heart disease, my answer would be yes. And to put that in context, 1 in 1,000 doesn't sound like much, but it is a level which this Court, in the benzene case, said entitles OSHA to regulate risks on the grounds that they are significant, and OSHA has, in fact, regulated product -- exposure in the workplace to products such as formaldehyde or ethylene oxide. And it is well above the tolerance level that EPA and the FDA use in their own regulation of other cancerous materials.

QUESTION: But you really don't contend that OSHA standards apply in prison, do you?

MR. HITCHCOCK: Well, OSHA standards do not apply in prison, but in terms of -- of the risk that they would --

QUESTION: Or even they -- it wouldn't have to have even the same degree, or do you think that there should be the same degree of risk in --

MR. HITCHCOCK: Well, there -- there's at least one case I'm aware of, Justice Stevens, a court of appeals decision which involved exposure to pesticides. And it was held that there was cruel -- there was an Eight Amendment violation stated if prison inmates were out working in the fields under -- with exposure to pesticides that was not comparable to those of private employees with the same standard. So it -- it may be, but in this case if we're comparing risks and comparing -- I'm putting it in context -- EPA and FDA will regulate risks if the chance of death from lung cancer is as low as 1 in 100,000 or 1 in a million.

Also, the other serious injury, you know, which again has not been identified with child abuse, is death by lung cancer. The Journal of the American Medical Association has indicated that the chance of death is as high as 1 in 100, based on exposure to cigarette smoke among people who never smoke.

If the Court has no further questions, we ask the charge be affirmed.

QUESTION: Thank you, Mr. Hitchcock.

General Del Papa, you have a minute remaining.

REBUTTAL ARGUMENT OF FRANKIE SUE DEL PAPA ON BEHALF OF THE PETITIONERS

MS. DEL PAPA: Justice White, in response to your question to Mr. Roberts, we did note in our petition that the Ninth Circuit erred in the way that it framed the issue at pages 25-29 of our --

QUESTION: Thank you very much.

MS. DEL PAPA: I have just a couple of brief points. We alerted the Court to our policy and the fact that it had changed, not that it was written, in our reply brief at the petition stage. We would contend --

QUESTION: Well, why didn't you tell the Ninth Circuit about this?

MS. DEL PAPA: I don't believe there was an opportunity. And, again, we would contend --

QUESTION: But the policy change was in 1989, wasn't it?

MS. DEL PAPA: But it was -- I think, due to the timing and the way the -- the policy actually, Your Honor, came out before the magistrate actually -- the policy came out before trial.

QUESTION: But it was inconsistent with the stipulation.

MS. DEL PAPA: We're contending that the -- that the policy has not materially changed, particularly with -- with reference to the accommodations.

QUESTION: But, you must agree, I think, that the written policy is inconsistent with certain parts of the stipulation.

MS. DEL PAPA: I don't agree with that.

QUESTION: You don't agree.

CHIEF JUSTICE REHNQUIST: Thank you, General Del Papa. The case is submitted.

(Whereupon, at 11:14 a.m., the case in the above-entitled matter was submitted.)