On August 18, 1997, Judge Thayer Fremont-Smith, a Massachusetts Superior Court judge, ruled that an inmate smoking ban did not violate prisoners' Eighth Amendment rights. In a consolidation of nine separate lawsuits filed by inmates in various Massachusetts Department of Correction ("DOC") facilities, smoking prisoners argued that the smoking ban violated their constitutional rights, interfered with interstate commerce by restricting tobacco sales, and amounted to intentional infliction of emotional distress. Judge Fremont-Smith dismissed all but one of the nine lawsuits. LeMay v. DuBois, No. Civ.A.96-5153-A, 1996 WL 914061 (Mass. Super. August 18, 1997).

The judge did not dismiss a suit by a prisoner who claimed that due to severe nicotine withdrawal, he had been driven to injure himself, and had not been provided with medical care. The opinion explained that if his allegations were proven, it could constitute a constitutional violation.

Ironically, this opinion came about after the DOC implemented a smoking ban which itself was the result of a class action suit against the DOC by nonsmoking inmates who complained about the adverse effects of secondhand smoke. As part of the class action suit's settlement agreement, the DOC agreed to implement a smoking ban in all of its facilities throughout the Commonwealth. The DOC policy gave prison superintendents the option of allowing smoking outside prison buildings or banning it completely. Due to the physical layout and the security needs of some facilities, certain prisons implemented a complete ban.

According to The Boston Globe, critics of the policy expressed concern that banning smoking altogether would increase tension in what is already a volatile environment. Furthermore, prison-rights groups were worried that the ban would create a prison market for contraband cigarettes which forces guards to police the possession of cigarettes. One year after the ban was implemented, the Worcester Telegram & Gazette reported that there does appear to be a black market for cigarettes. However, a spokesperson from the Massachusetts Correction Officers Federated Union stated that he had not heard about any significant problems regarding increased tension or violence.

In Helling v. McKinney, 113 S. Ct. 2475, 509 U.S. 25, 8.2 TPLR 2.201, 125 L. Ed. 2d 22 (1993), a Nevada state prisoner successfully argued that exposure to environmental tobacco smoke

("ETS") may constitute cruel and unusual punishment in violation of the Eighth Amendment. The U.S. Supreme Court held that the prisoner had stated a cause of action under the Eight Amendment by alleging that the prison officials, with deliberate indifference, exposed him to ETS levels that posed an unreasonable risk to his future health. By implementing a smoking ban, the DOC rendered moot further suits on behalf of nonsmoking inmates, and brought prisons into compliance with the Massachusetts state law prohibiting smoking in all state buildings as well.

It is estimated that between half and three-quarters of prisoners smoke. Judge Fremont-Smith's opinion dismissed the smoking prisoners' claims that the DOC had violated its settlement agreement in the nonsmoking prisoners' class action suit by failing to provide smoking cessation programs. The judge found that the DOC had in fact offered inmates two cessation programs, in September and November of 1996, right after the implementation of the ban. The opinion acknowledged that smokers required to quit "cold turkey" may suffer severe withdrawal symptoms such as discomfort and pain; however, Judge Fremont-Smith found that the DOC did allow prisoners suffering from withdrawal to request to be placed on sick call where they would receive appropriate treatment.

-Christie Getto Young