By Paul Wright
As noted in last month's article, "Smoking, Lies and Hypocrisy," notes, the tobacco settlement between the states and the tobacco industry will have no impact on prisoners, assuming it is actually implemented. When the supreme court decided Helling v. McKinney and held that exposing a nonsmoking prisoner to Environmental Tobacco Smoke (ETS, a.k.a. second hand smoke), a known carcinogen, violates the eighth amendment ban on cruel and unusual punishment, one would have thought it signaled the end of prison smoking. Since 1993 a large number of county jails have banned smoking but only some prison systems have. The prison systems that have banned smoking are: MN, NE, IN, ID, MA, OR, UT and TX with the latter being the largest state to do so.
While some DOC's cited litigation and health factors as the reason behind the smoking ban (i.e., NE); others stated they had banned smoking as a measure to further punish prisoners (i.e. Texas).
When Prison Smoking is Banned
Prison officials tend to be the most ardent opponents of prison smoking bans. To hear their testimony before legislatures, ending smoking in prison will bring about rebellion and revolt by prisoners, unlike the many other punitive measures they have endorsed and enacted. A prison black market in tobacco is often cited as a problem. Vermont rescinded its 1993 tobacco ban when cigarettes were sold for $3 each. Within the first seven months of the Texas Dept. of Criminal Justice (TDCJ) ban on tobacco, a pack of cigarettes sold for up to $100 and allegations of tobacco smuggling by staff had led to 17 criminal prosecutions and 55 administrative actions against staff. PLN readers in the TDCJ report that tobacco remains available at stable prices as a result of smuggling by staff who have profited handsomely from the ban.
Jails that have banned tobacco report little in the way of problems. The only exception is the Santa Clara county jail in California, where jail officials claimed black and Hispanic prisoners have fought over control of the jail's illicit cigarette trade. In that case, 30 prisoners were involved in a melee that left two injured on December 30, 1996. As a result, jail officials were rescinding the tobacco ban at the jail. When prisoners fight over control of prison drug trafficking that does not result in drug bans being lifted.
Of the prison systems that have banned tobacco only Vermont and Georgia have removed the bans. The "tobacco as black market commodity" argument overlooks the fact that other substances, such as marijuana and alcohol, are also grossly overpriced within the prison economy, with a gram of marijuana selling for upwards of $50 and pints of liquor being sold for $100. Prisons are controlled markets of scarcity. That tobacco smuggling takes place under such conditions is an indication of how deep rooted nicotine addiction really is.
Draconian policies have been imposed on prisoners in the name of keeping drugs out of prisons. Yet despite the failure of such policies in doing that, no prison official has suggested allowing alcohol, another legal but controlled substance, into prisons and jails.
Ironically, given the choice between drugs such as heroin, marijuana and tobacco, most prisoners seem to prefer the latter. A Macomb county, Michigan, jail official who requested anonymity, stated: "Inmates are now more concerned with smuggling tobacco into the jail than in smuggling drugs." TDCJ internal affairs investigator Patrick O'Shaughnessy noted: "Tobacco has replaced marijuana as the substance that causes officers to take bribes." Al Chandler, Assistant Director of the Oregon DOC noted that after tobacco was banned in Oregon prisons, it created a smuggling problem. "Tobacco is now the drug of choice and in maximum security it is a constant problem." 
When prisoners have litigated tobacco bans they have uniformly lost. Courts have held there is no right to smoke and many legitimate governmental reasons to ban smoking, namely the health hazards associated with smoking and the fact jail and prison officials can be held liable if they don't ban smoking. See: Doughty v. Board of County Commissioners , 731 F. Supp. 423 (D CO 1989); Grass v. Sargent , 903 F.2d 1206 (8th Cir. 1990) and Elliot v. Board of Weld County Commissioners , 796 P.2d 71 (CO. App. 1990).
Ironically, not even the Tobacco Institute, the industry trade association, will defend smoking for prisoners. Thomas Lauria, the Institute's spokesman, says the Institute is "neutral" on the issue. He said it's understandable that "criminals lose privileges when they go to prison" but that the Institute contests banning smoking for health reasons. 
Litigation By Non-Smoking Prisoners
Since McKinney was decided there have been numerous court rulings on prisoner ETS litigation. In most cases pro se litigants have lost because they can't or don't adequately prepare their cases. In some cases courts have issued injunctions to spare non smoking prisoners the health hazards of ETS exposure. See: Crowder v. District of Columbia , 959 F. Supp. 6 (D DC 1997). [ PLN , Dec. 1997] Some suits have been settled with prison officials agreeing to provide smoke free accomodations. [ PLN , Nov, 1996. "WSR Smoking Suit Settled."]
While circuit courts have begun denying prison officials qualified immunity for ETS exposure, e.g., Weaver v. Clarke , 45 F.3d 1253 (8th Cir. 1995)[ PLN , Aug. 1995], there do not appear to be any damage awards or monetary settlements in prisoner ETS litigation. Prisons and jails can avoid injunctions, and liability, by banning smoking altogether; segregating smokers and nonsmokers or designating non smoking areas and enforcing them; as the courts have held that such measures show defendant jail and prison officials are not "deliberately indifferent" to the serious health needs of prisoners under the eighth amendment.
Litigation by Non-Smoking Employees
While much is said about prisoner litigation, it may well be litigation by guards which drives the final nail into the coffin of detention facility smoking practices. While a majority of prison and jail employees smoke, many do not. They too have a right not to be exposed to ETS.
The Washington state supreme court held, in a case involving a Dept. of Social and Health Services (DSHS) office employee, that: "The employer's common law duty to provide a safe workplace includes a duty to provide a working environment reasonably free from tobacco smoke.... The state as an employer has such a duty." McCarthy v. State of Washington, DSHS , 759 P.2d 351, 110 Wn.2d 812 (WA S.Ct. 1988). That case was eventually settled for $27,000.
In a bombshell development, on October 14, 1997, a federal jury in Syracuse, New York, awarded $420,300 in damages to Keith Muller, a prison guard at the Mid-State Correctional Facility in Marcy, NY. The jury found that the state DOCS discriminated against Muller and violated his rights under the Americans with Disabilities Act (ADA), when it refused to accommodate his sensitivity to tobacco smoke. Muller, an asthmatic, complained to no avail when he was forced to work in prison housing units filled with tobacco smoke. Norman Deep, Muller's attorney, said "I think this case will go a long way to help all state employees who are forced to ingest second hand smoke." Muller also has a lawsuit pending against the county for failing to enforce the state's Clean Indoor Air Act at the prison and against the prison for firing him when he refused to continue working in a smoke filled environment. Mr. Deep's attorney fees under the ADA are likely to equal or surpass Muller's damage award.
Why is Smoking Still Allowed in Most Prisons?
Given the known health risks associated with smoking and the potential for liability in ongoing litigation over the issue, why do most prison systems still subsidize and actively encourage smoking by prisoners? It can't be because most prisoners smoke. Afterall, the ongoing prisoner bashing trend has cared little of what prisoners think about moves to eliminate our property, court access, etc. It's not about money when states such as Ohio spend $78.5 million a year on prison medical expenses, and claim 50% of health care costs are caused by prisoner tobacco use. More so when states that have banned tobacco use, such as Texas and Oregon, claim a dramatic decrease in the number of prisoners seeking medical treatment for respiratory illnesses. 
The rhetoric against smoking has never matched the reality when it comes to prisoners. Some economists claim that smokers "help the economy'' by dying young and not living long enough to collect pensions, social security, etc. With the reality that liquor and cigarette ads disproportionately target poor and minority people and the prevalence of liquor stores in poor neighborhoods, is it any surprise that most prisoners smoke? Prisoners are typically viewed by the politicians and the ruling class in this country as a disposable class of subhumans. So why not encourage prisoners to smoke? Even if it means giving away tobacco. Does a decreased prisoner lifespan translate into "money saved" as prisoners serve less time by dying sooner, being physically incapacitated, and otherwise suffering the effects of smoking? Viewed in that context it makes perfect sense for prisoners to smoke to their heart's content. But, perhaps that is an overly cynical view.
As prison officials will claim, when it suits their purposes, that up to 70% of the prisoners in their custody are "controlled substance abusers," [10 ]why are these same prisoners being supplied with a substance many consider more addictive than heroin or cocaine? The message of any type of drug treatment or drug prohibition is lost as prisoners substitute one lethal addiction for another.
There is no logical or easy answer to this question. While some would say that killing prisoners by encouraging smoking amounts to a deliberate policy, it ignores the fact that a majority of prison employees and officials are themselves smokers. Perhaps this is a case of the junkie guarding the crack house?
The Future of Prison Smoking Litigation
If it is approved, the settlement negotiated by the state Attorney Generals (AG) and the tobacco industry will give the industry immunity from liability and suit. As a practical matter, the large plaintiff law firms that teamed up with the AG's to sue the tobacco industry have, historically, never been interested in prisoner civil rights litigation. Already the private lawyers and the AGs are arguing over their fee arrangements as some states try to renege on their contingency fee aggreements.
The product liability and toxic tort laws and legal theories that the AG's used to sue the tobacco industry can, and should, be used to sue the various state DOC's that engaged in the same behavior as the tobacco industry. The prison systems that gave away tobacco to thousands of prisoners to get them addicted to nicotine; the prison systems that gave or sold tobacco to minors and mental patients; the prison systems that sold or gave away tobacco products with no warnings of negative health effects. These prison systems should be held accountable for their actions, just as the tobacco industry is supposed to be accountable for their actions.
Having argued this was reprehensible, and illegal, conduct when engaged in by the tobacco industry the various AGs may well be collaterally stopped from arguing otherwise in lawsuits by former and current prisoner smokers. Just as cases against the tobacco industry eventually made their way to juries, so too will this type of case. Unlike the tobacco industry, which until recently had armies of lawyers and experts to testify there was no harmful effect associated with smoking, the state AG's arguments can easily be impeached with the same evidence and testimony they presented in their suits against the tobacco industry.
The large law firms that joined in the state tobacco industry litigation may have a conflict of interest in turning around and suing the state DOCs over these same issues. Which leaves the field open for the smaller law firms that have traditionally represented prisoner civil rights plaintiffs. [Pro se litigants should not attempt this type of litigation on their own due to the likelihood of failing and adversely impacting future litigation.]
While injunctive relief suits over ETS exposure march forward in those places where smoking continues, the prospect of large damage awards is slim. But, holding the DOC's liable for their role in addicting those in their custody, with the attendant health hazards, under standard product liability laws, holds the promise of large damage awards and attorney fees. The only question now is whether lawyers and prisoners will hold the states accountable for the DOC's role in the tobacco business.
1) Austin American Statesman . "Banned in Prison, Tobacco Gets in Anyway." October 29, 1995. Page B3.
2) San Jose Mercury News , "Jail Melee Erupts Over Cigarettes." December 31, 1996. Page 1B. Rodney Foo.
3) Detroit News . "Guards Fear Fallout from State Prison Smoking Ban: Union Predicts Increase in Violence, Smuggling." Nov. 25, 1996. Page A1. Charlie Cain.
4) Banned in Prison, Supra .
5) Correctional Food Services, "Tobacco Becomes Drug of Choice as Prisons Ban Cigarettes." June/July, 1997. Page 20. Diane Williams.
6) Christian Science Monitor . "Anti-Smoking Campaign Lands in Prison." Sept. 19, 1996. Page 4. Shelley Donald Coolidge.
7) Muller v. NY State, NY DOCS and Midstate Corr. Facility , Case No. 94-CV-842; and Corrections Digest , "Fired Officer Wins Smoking in the Workplace Lawsuit." Oct. 24, 1997. Page 7.
8) Columbus Dispatch . "Up in Smoke: Prison Smoking Ban Idea Ahead of Its Time." July 7, 1997.
9) Correctional Food Services, Supra .
10) Hook v. Arizona , 120 F.3d 921 (9th Cir. 1997). PLN , Dec. 1997.
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