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Use of force on convicted prisoners: Constitutional amendment controls and constitutional standards

The Supreme Court has ruled that legality of force directed at convicted prisoners by prison officials must include not only an analysis of the nature and degree of the force used, but also a review of the rationale and purpose for the use of force


In Tennessee v. Garner and Graham v. Connor, the United States Supreme Court established the constitutional standards for law enforcement use of force on free citizens.

Garner established the constitutional standard for use of deadly force on fleeing felons by ruling that use of deadly force involves a Fourth Amendment “seizure” of the suspect and requiring an officer to have probable cause that a suspect poses a significant threat of death or serious bodily harm to the officer or others before deadly force can be used. [1]

Graham expanded the scope of the Fourth Amendment in use of force matters to include all law enforcement use of force, deadly or otherwise, against free citizens. Graham determined that all forms of force used by law enforcement against free citizens would be governed by the Fourth Amendment and its “objective reasonableness” standard. In adopting an “objective reasonableness” standard, the Court declared that the subjective state of mind or subjective intent of the alleged offending officer was irrelevant to the equation. Instead, the Court ruled that in the future only objective factors relevant to the officer’s conduct would be reviewed.

Because Garner, Graham and its progeny involve only the constitutional standards for use of force on free citizens, it begs the question regarding government use of force on convicted prisoners and pre-trial detainees. Below are some of the Supreme Court cases that focus specifically on governmental use of force directed at convicted prisoners. Future articles will review the constitutional use of force standards regarding pre-trial detainees and convicted prisoners outside the prison environment.

Convicted prisoners: Eighth Amendment governs use of force

Whitley v. Albers, 475 U.S. 312 (1986)

On 6/27/80 a disturbance erupted in a cellblock at the Oregon State Penitentiary. One officer was assaulted but escaped and a second officer was taken hostage by some inmates. He was kept in a cell on the second tier. One inmate leader of the insurrection was armed with a knife and threatened to kill the hostage if officers attempted to enter and gain control.

Officers armed with shotguns entered the cell block to rescue the hostage and regain control. A warning shot was fired as the officers entered and the inmate with the knife began to run up the stairs to the second tier where the hostage was being held. An officer pursued him up the stairs. Albers, the plaintiff in this case, began running up the stairs behind the officer. Albers was shot as he ran up the stairs. The hostage officer was rescued, and order restored. Albers left leg was severely injured by the gunshot wound.

Albers filed suit pursuant to 42 USC § 1983 alleging violation of his civil rights as protected by the Eighth Amendment. The Supreme Court ruled in favor of prison officials; affirmed that the Eighth Amendment is the proper vehicle to redress grievances of convicted prisoners regarding use of force; and set forth the legal standard for deciding whether prison officials have violated the Eighth Amendment by the force used against inmates under their control.

The Court instructed that its standard for Eighth Amendment cruel and unusual punishment violations involves the question of whether the actions taken by prison officials involve the infliction of “unnecessary and wanton pain and suffering.” [2] The Court explained that this in turn involves answering the question of “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” [3]

The Court explained further that relevant factors that should be considered in reaching a determination of whether a particular use of force violates the Eighth Amendment include:

  • The need for the application of force;
  • The relationship between the need for the use of force and the amount or degree of force used;
  • The extent of the injury resulting from the force applied;
  • Efforts by prison officials to temper the severity of the force used; and
  • The extent of the threat to the safety of prison staff and inmates, as reasonably perceived by prison authorities.

The Court stated that by reviewing the factors described above, “inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” [4] The Court added that “Prison administrators … should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline to maintain institutional security.” [5]

After Whitley, it is clear that courts evaluating excessive force allegations from convicted prisoners will not only consider the nature of the threat posed by inmates and degree of the force used (an objective test) but also whether that force was applied sadistically and maliciously with the intent and purpose of causing harm (a subjective test).

It should be noted here that the Court’s addition of a subjective (state of mind) component to its Eighth Amendment use of force test makes that test substantially different from its Fourth Amendment “objective reasonableness” test applied to use of force against free citizens.

Hudson v. McMillian, 503 U.S. 1 (1992)

On 10/30/83 Hudson was an inmate in the Angola Louisiana State prison. McMillian was a corrections officer at the same facility. After an argument, McMillian handcuffed and shackled Hudson, removed him from his cell and walked him toward the prison lockdown area. On the way to lockdown, Hudson alleged that McMillian had Woods, another officer, hold him while McMilliam beat him. Hudson alleged that McMillian punched him in the mouth, eyes, chest and stomach while Woods kicked and punched him from behind.

During the beating, a duty supervisor watched the beating but did nothing to stop it. Hudson received minor bruises, swelling to his face, loosened teeth and a cracked dental plate.

Hudson sued the involved officers, including the Supervisor, pursuant to 42 USC § 1983, alleging violation of the Eighth Amendment’s cruel and unusual punishment clause. The Supreme Court ruled in favor of Hudson and rejected a requirement set forth by the Fifth Circuit Court of Appeals, that proving an Eighth Amendment excessive force violation calls for the victim inmate to establish that the injuries inflicted were significant. The Fifth Circuit had ruled against Hudson and concluded that his injuries were minor and required no medical attention.

The Supreme Court disagreed and ruled “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” [6]

The Court concluded by stating, that not every malevolent touch by a prison guard is a violation of the Eighth Amendment and explained that “de minimis uses of physical force” [7] do not violate the Eighth Amendment. Nonetheless, the Court ruled that Hudson’s injuries were not de minimis for Eighth Amendment purposes.

Learning points

  • Use of force by corrections officers and officials against convicted prisoners is governed by the Eighth Amendment’s cruel and unusual punishments clause.
  • When deciding excessive force allegations against prison officials, federal courts will not only examine the objective facts involving the force used but also whether that force was used with a malicious purpose and sadistic intent to inflict unjustified punishment.
  • In convicted prisoner use of force cases, federal courts have been instructed by the Supreme Court to give special deference to decisions made by prison officials to use force when those decisions are made to maintain and restore institutional order and discipline and to protect the safety and security of prison officials and inmates.


In the convicted prisoner context, an inmate is not required to prove that the force used against him by prison officials resulted in a significant injury. As long as the force used is not so minor as to be considered “de minimis,” it is enough for the inmate to establish that the force used was objectively excessive and administered with malicious purpose and sadistic intent.


1. These principles are not just applicable to use of deadly force against fleeing felons but are universally applied by the federal courts in all use of deadly force cases involving free citizens.
2. Whitley, 475 U.S.312, 320.
3. Id., at 320-321.
4. Id. at 321
5. Id. at 321-322. (Quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979).
6. Hudson v. McMillian, 503 U.S. 1, 9.
7. Id. at 11.

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John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

Contact Mike Callahan.