Current and former prisoners brought suit alleging, in unrefuted sworn affidavits, that the District of Columbia failed to enforce its no-smoking policy at the Lorton Correctional Complex.  The plaintiffs asserted that prison officials failed to reprimand prisoners for smoking, that transfer requests for nonsmoking areas were denied and that barriers required by law to separate smokers from nonsmokers do not exist.  On May 21, 1996, the court, interpreting the prison’s lack of enforcement to be a reckless indifference for the health of the inmates, issued a preliminary injunction ordering that the plaintiffs be immediately transferred to nonsmoking quarters and that the Department of Corrections enforce its no-smoking policy and discipline those who violate it.  The Court also determined that “the most efficient way to ensure that the City complies with this Court’s Order is to appoint a disinterested and neutral Special Master.”  A trial was conducted on the issue of whether the court should issue a permanent injunction.  On March 17, 1997, the court (Sporkin, J.), in Crowder, et al. v. District of Columbia, 959 F. Supp. 6, 1997 U.S. Dist. LEXIS 3230, found that even “when kept in so-called non-smoking areas, Plaintiffs have been exposed to smoke from prisoners and correctional officers who violate the rules, and from smoke that sifts in from smoking areas.”  The court specifically found “that the involuntary exposure to significant amounts of ETS is intolerable under contemporary societal standards.  The defendant District of Columbia cannot hide from this fact . . . Intentional and involuntary exposure of any human being (whether incarcerated or not) to intolerable levels of second-hand smoke is tantamount to a physical assault on those exposed, and exceeds the standards of contemporary decency.  This is particularly true where an individual has a serious underlying illness that is exacerbated by breathing in second-hand tobacco smoke.”  The court entered a permanent injunction that the District of Columbia “will be required to take all steps necessary to assure that the named Plaintiffs will be assigned sleeping quarters with other non-smokers and to otherwise enforce its non-smoking policy where the Plaintiffs are compelled to be.”

On April 3, 1998, the U.S. Court of Appeals for the District of Columbia Circuit reversed and dissolved the injunction in Scott, et al., v. District of Columbia, 139 F.3d 940, 1998 U.S. App. LEXIS 6697.  The Court of Appeals ruled that the district court had misapplied the standards articulated in Helling v. McKinney, which was that a prisoner states a cause of action under the Eighth Amendment by alleging that prison officials “have, with deliberate indifference, exposed him to levels [of tobacco smoke] that pose an unreasonable risk of serious damage to his future health.”  While the district court had concluded that “involuntary exposure to significant amounts of [secondhand smoke] is intolerable under contemporary societal standards,” it did not define what is a significant amount.  The Court of Appeals ruled that the Plaintiffs had failed to provide “any objective evidence of the level of second-hand smoke.”  Furthermore, the plaintiffs had not proven that the prison officials had acted with deliberate indifference.  The Court of Appeals concluded that the injunction, which followed the prisoners even after some had been transferred to a facility in Ohio, was too broad.  On October 5, 1998, certiorari was denied at 1998 U.S. LEXIS 5334.

928 F. Supp. 2, 11.5 TPLR 2.179, 1996 U.S. Dist. LEXIS 7256, 1996 WL 288759, Nos. 94-702, 94-229, 94-1728, 94-103, 94-213 and 95-1889, (D.D.C. 1996).