Bioethics Blogs

Chipping Away at the Physical / Psychological Harm Distinction: 8th Amendment Edition

Although this makes two of my posts in a row on the topic, I promise I’m not unduly fixated on Judge Posner’s cruel-and-unusual-punishment jurisprudence. It just happens that his recent decision in Beale v. Foster highlights an accelerating doctrinal development that I think about all the time as a neurolaw scholar — and, yes, Posner’s adroit and accessible writing style makes for positively choice grade-A blog fodder. (The opinion is under 6 pages and is a snap for lay readers. Give it a whirl, really.) Writing for a unanimous panel of the 7th Circuit Court of Appeals, he reversed part of a motion to dismiss plaintiff Beale’s case that had been granted by the magistrate judge below.

What caught my interest about the case? Chiefly, I think it’s a nice snapshot of the law’s increasingly unstable treatment of the distinction between physical and psychological injury. I talk all the time (thanks to Francis Shen’s magnificent treatment of it) about Allen v. Bloomfield Hills School District, in which the Court of Appeals of Michigan held that a plaintiff might be able to prove at trial that his post-traumatic stress disorder satisfied a statutory “bodily injury” requirement. I think Beale fits into that same thematic space — revisiting and undermining the law’s traditional skepticism toward the “reality” or actionability of psychological harm.

Beale, as with so many cruel and unusual punishment cases, features entirely believable allegations of pointless and wanton indignities visited on an inmate by his jailor, pleaded without assistance of counsel and met with hasty judicial dismissal.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.