Smoke-free air in state correctional facilities: What is the law?

Over 2 million inmates are in correctional facilities in the United States. Exposure to secondhand smoke causes premature death, adverse effects on the cardiovascular system, and heart and lung disease. Because the prevalence of smoking among inmates is 60 to 80 percent, non-smoking inmates and employees are likely to be exposed to high levels of secondhand smoke in facilities where smoking is allowed.

In 2004, the Federal Bureau of Corrections made the 105 federal prisons almost 100 percent smoke-free. However, the extent to which state correctional facilities restrict smoking is not known. Preliminary research from the National Cancer Institute's State Cancer Legislative Database (SCLD) Program indicates there are only eight states with statutes that restrict smoking within correctional facilities.

Restricting smoking in state correctional facilities raises unique legal considerations. The Supreme Court has held an inmate may have an 8th amendment claim of cruel and unusual punishment if officials had, with deliberate indifference, exposed inmates to levels of secondhand smoke that posed an unreasonable risk of serious damage to the inmate's future health. This claim may be used to enforce existing smoke-free air restrictions, but not to create new ones. Although inmates have no Constitutional right to smoke, they are the only population that has a right to healthcare and may be entitled to smoking cessation support.

This presentation examines the extent of state statutes related to smoke-free air in state correctional facilities, highlights the legal arguments, and identifies opportunities for additional public health protections of inmates from secondhand smoke.