Two prisoners filed suit claiming that the Eighth Amendment rights were violated in that prison officials provide smoke-free areas for inmates to reside “only upon suffering a loss of earned privileges” and that they do not enforce rules to provide smoke-free residential area for inmates who are susceptible to health risks from environmental tobacco smoke (ETS) and that the prison officials are deliberately indifferent to the threat to their health from exposure to those levels of ETS.  The defendants argued that the complaint could not proceed under the cruel and unusual punishment prohibition of the Maine Constitution because they have to allege — and plaintiffs did not do so here — that the defendants interfered with their rights by physical forced or a threat of physical force.  The court ruled that, interpreting the U.S. Supreme Court’s ruling in Helling v. McKinney 509 U.S. 25 (1993), any time a person is in custody, he is being held against his will by the State’s affirmative exercise of its power.  The court ruled that the prisoners’ constitutional claims, both U.S. and Maine Constitutions, could proceed but that claims based on the state’s public smoking law (22 M.S.R.A. sec. 1542) and alleging that this is a class action would be denied.  See Adams, B., “Lawsuit Continues About Smoke-free Housing in Prison,” Kennebec Journal (Augusta, ME), October 22, 1999, A1; and “Inmates Can Pursue Smoke Suit,” Portland Press Herald, October 22, 1999, 6B.

Kennebec (Maine) Superior Court No. CV-98-305, 1999.