U.S. v. Brennan, 58 M.J. 351

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. the Eighth Amendment to the Constitution prohibits the infliction of cruel and unusual punishment; Article 55, UCMJ, states that various specified punishments, as well as any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to the UCMJ; the Supreme Court’s interpretation of the Eighth Amendment applies to a claim under Article 55 that confinement was administered in a cruel or unusual manner, subject to certain exceptions
2. under Supreme Court jurisprudence, misconduct by prison officials does not constitute cruel and unusual punishment unless it falls within the Eighth Amendment standards established by that Court; the Supreme Court has held that the Eighth Amendment prohibits punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society or which involve the unnecessary and wanton infliction of pain; in the context of a challenge to the conditions of confinement, the Court has observed that the Eighth Amendment does not mandate comfortable prisons but neither does it permit inhumane ones
3. the Supreme Court has identified two elements of an Eighth Amendment claim concerning confinement conditions: (1) an objective test – whether there is a sufficiently serious act or omission that has produced a denial of necessities; and (2) a subjective test – whether the state of mind of the prison official demonstrates deliberate indifference to inmate health or safety
4. applying the Supreme Court’s Eighth Amendment test, numerous federal courts, including CAAF, have held that to sustain an Eighth Amendment violation, there must be a showing that the misconduct by prison officials produced injury accompanied by physical or psychological pain; the proof required to establish the unnecessary and wanton infliction of pain varies according to the nature of the alleged constitutional violation
5. as a general matter, verbal harassment, even when accompanied by physical contact, is insufficient without evidence of physical or psychological injury to prove that the misconduct constitutes an Eighth Amendment violation