Cruel, Not Unusual

New Hampshire locks civilly committed mental health patients inside the state prison, warehouses them in 23-hour isolation, and has done it for forty years. That’s not a loophole in the Eighth Amendment. That is the Eighth Amendment.

The Eighth Amendment is the dumbest line in the United States Constitution, and the proof is sitting on a hill in Concord, off North State Street, behind a razor-wire fence.

Inside that fence is the Secure Psychiatric Unit — the SPU. It is run by the New Hampshire Department of Corrections. It is staffed by corrections officers. It houses people in cells. And by the unanimous conclusion of every national advocacy group that has ever looked at it, it is the only facility in the United States where people who have not been charged with a crime — civilly committed mental health patients, people whose families signed them into a hospital because they were sick — are routinely dressed in prison jumpsuits, photographed, and held in isolation up to 23 hours a day.

This has been going on, in some form, since the mid-1980s. Forty years. Governors have come and gone. Legislative study committees have come and gone. Federal civil rights reports have come and gone. Three people have died in state Department of Corrections psychiatric custody in the last decade. The facility is still open. The practice continues.

And the Eighth Amendment to the United States Constitution — the one that is supposed to forbid “cruel and unusual punishment” — has done nothing. It cannot do anything. It was written, on its own terms, to allow this exact situation.

That is what I want to explain.

I. Read It Again, Slowly

The text of the Eighth Amendment is sixteen words, ratified in 1791: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Pay attention to the last clause. Cruel AND unusual. Not or. And.

By the Founders’ own grammar, a punishment is constitutional unless it is both cruel AND unusual. If it’s just cruel, that’s fine. If it’s just unusual, that’s fine. The amendment only kicks in when you hit the combo — and even then, what counts as “cruel” and what counts as “unusual” is defined entirely by the era you happen to live in.

So the amendment has two fatal bugs baked into its text.

The first bug is the conjunction. A state that inflicts something cruel on enough people, often enough, for long enough, makes that cruelty routine — which makes it, by definition, not unusual — which makes it constitutional. The amendment’s own logic says: the more frequently a state does something horrible to its citizens, the more legal it becomes. Torture one person behind a prison wall: unusual. Torture a thousand: business as usual. Carry on.

The second bug is the adjectives. “Cruel” and “unusual” don’t have fixed meanings. In 1789, branding people with hot irons was neither cruel nor unusual. Public flogging, neither cruel nor unusual. Debtors’ prisons, neither cruel nor unusual. Executing a twelve-year-old for theft — neither cruel nor unusual. All of it sailed through the Eighth Amendment for the simple reason that all of it was common, and nothing in the text of the amendment gives a judge anywhere to stand to call it what it was.

The Supreme Court eventually had to invent a phrase — “evolving standards of decency,” in Trop v. Dulles, 1958 — just to make the amendment do any work at all. That is not constitutional interpretation. That is a judicial patch job on broken code. They had to rewrite the amendment in their heads to give it meaning. Which tells you what the original text was worth: nothing.

II. The Secure Psychiatric Unit Is Cruel

This is the part that should not require argument. It does anyway, because the state of New Hampshire keeps pretending otherwise.

The Secure Psychiatric Unit is located on the grounds of the New Hampshire State Prison for Men in Concord. It is not licensed as a healthcare facility. It is run by the Department of Corrections. The people inside live in cell blocks. The people who supervise them are armed corrections officers, not psychiatric nurses. The 2021 New Hampshire Advisory Committee to the U.S. Commission on Civil Rights described it, in its official report, as a “highly controlled, solitary-confinement environment, where security concerns must take precedent to clinical decisions.”

As of recent public accounting, the SPU has held around 40 people at a time. Roughly half of them are civilly committed — meaning they have been signed over to state psychiatric custody by a court, often at the request of a frightened family member, because they are acutely ill. They have been charged with no crime. They are inside the prison anyway, because New Hampshire Hospital — the state’s actual psychiatric facility, the one built in the 1980s — does not have a secure wing. So when a patient is deemed a danger to themselves or others, they are not transferred to a locked hospital ward. They are transferred to a prison. That is the policy. It has been the policy for forty years.

Andrew Butler was twenty-two when he was civilly committed after a summer of hallucinations and paranoia. His father signed him in at New Hampshire Hospital. Months later, he was moved into the SPU. His family testified before a legislative committee that he was dressed in a prison jumpsuit and issued a prison number.

Philip Borcuk died inside the SPU in December 2017. His family’s 2020 lawsuit alleges he died on the floor after a use-of-force incident involving corrections officers.

Jason Rothe died inside the SPU in April 2023, after what the Department of Corrections described as a “physical altercation” with six corrections officers.

Three deaths in a decade, in a 40-bed facility. Two of those three had been signed into state psychiatric custody by their own families, who believed their loved ones were going to a hospital. They went to a prison. They never came out.

I will state the obvious: this is cruel. Caging a mentally ill person in a concrete cell, in isolation, for 23 hours a day, under the supervision of guards trained to control prisoners — and doing it to people who committed no crime and signed no plea — is cruel by any honest definition. The American Psychiatric Association has said so. The New Hampshire Psychiatric Society has said so, in testimony dating back to 1985. The U.S. Commission on Civil Rights has said so. The Disability Rights Center of New Hampshire has said so. Every clinician who has spoken publicly about the facility has said so.

It is cruel. That is not in dispute.

III. The Secure Psychiatric Unit Is Not Unusual

Here is where the amendment dies.

The SPU opened behind the walls of the men’s prison in Concord in the mid-1980s. It has been continuously operational for roughly forty years. Every governor of New Hampshire since Judd Gregg has presided over it. Every attorney general has defended it in court. Every session of the New Hampshire General Court has had the option of closing it, funding a real forensic hospital, and separating the civilly committed from the criminally committed — and every session, until very recently, has declined.

A 25-bed replacement was approved in the 2017 budget and never built. A 60-bed replacement was proposed by Governor Sununu in 2021 and removed by House budget writers. A foundation design error halted construction of the current forensic hospital plan in 2025.

Forty years. Multiple governors. Dozens of legislative sessions. At least three deaths. The practice continues.

That is the definition of not unusual. It is, in fact, the default. It is what the state of New Hampshire routinely does with its most psychiatrically fragile citizens. It is how we do business. If you are civilly committed in this state and your illness is severe, this is what happens to you. It is expected. It is budgeted. It is, in the literal sense the word requires, ordinary.

So apply the amendment’s own test to the SPU.

Cruel? Unambiguously yes. Forty years of clinical, legislative, and federal civil rights documentation confirms it.

Unusual? Unambiguously no. It is the single most routine way New Hampshire has dealt with acute civil psychiatric commitment for four decades.

Fails the AND test. Constitutional. Carry on.

That is not a glitch. That is the amendment working as written.

IV. Even When the Courts Ruled for the Prisoners, Nothing Happened

New Hampshire has been here before.

In 1975, a prisoner named Jaan Laaman filed a federal civil rights suit against the New Hampshire Department of Corrections, alleging that the conditions at the state prison in Concord constituted cruel and unusual punishment. In 1977, the U.S. District Court for the District of New Hampshire — the highest-ranking federal court in this state — agreed. In Laaman v. Helgemoe, 437 F. Supp. 269, a federal judge ruled that the state of New Hampshire was subjecting its prisoners to conditions that violated the Eighth Amendment.

The Laaman litigation culminated in a 1990 consent decree, which was vacated under the Prison Litigation Reform Act, then ratified again as a settlement agreement in 2001. That settlement is still in force. Prisoners have filed lawsuits in the 2020s — including a 2020 NH Supreme Court case brought by Clifford Avery — alleging the state is still failing to meet the conditions its own consent decree requires.

Let me restate that clearly: a federal court ruled, forty-nine years ago, that New Hampshire’s prison conditions were cruel and unusual. The state signed a settlement. The settlement required ongoing compliance. Prisoners are still, in 2026, filing lawsuits because the state isn’t complying.

The federal judgment didn’t close the prison. It didn’t stop solitary confinement. It didn’t prevent the construction of the SPU a few years later. It didn’t prevent the deaths of Philip Borcuk or Jason Rothe. It generated a consent decree that the state has had almost half a century to slowly metabolize, adjust around, and outlast.

That is the Eighth Amendment’s best-case scenario in New Hampshire. A federal court affirmed the amendment’s protection. The state agreed to change. The changes didn’t hold. And the next generation of prisoners is in court arguing the same thing their predecessors argued when Jimmy Carter was president.

V. The Meehan Parallel: The State Will Pay Nothing It Can Avoid Paying

If you want to understand how little the state of New Hampshire actually believes in the Eighth Amendment’s “evolving standards of decency,” look at what the Attorney General’s office is currently doing in the Meehan case.

David Meehan was 13 when he entered state custody at the Youth Development Center in Manchester in 1995. By his own testimony, which a Rockingham County jury unanimously believed, he was raped hundreds of times and beaten hundreds of times by state employees over the course of years. In May 2024, after a weeks-long trial, the jury found the state 100 percent liable and awarded him $38 million — $18 million compensatory, $20 million in enhanced damages. The jury explicitly found that the state engaged in “wanton, malicious, and oppressive conduct.”

The state response, led by Attorney General John Formella, has been to argue — in court, in writing, in briefs filed with the New Hampshire Supreme Court — that the hundreds of rapes and hundreds of beatings Meehan endured should legally be counted as one incident, capped at $475,000 under RSA 541-B:14, I.

In its Supreme Court brief, Formella’s office compared Meehan’s years of torture as a child to a hypothetical oil spill.

This is the same state that runs the Secure Psychiatric Unit. This is the same Department of Justice that will, in the same breath, tell you that New Hampshire is a civilized jurisdiction, that the Eighth Amendment is rigorously enforced here, and that hundreds of rapes of a 13-year-old in state custody are — for purposes of payment — legally identical to a single environmental accident.

The state has also, through Governor Ayotte, pushed through changes to the Youth Development Center Claims Settlement Fund that allow the Attorney General to veto any settlement offer he deems excessive. Survivors who agreed to pause their civil suits in exchange for Fund administration are now suing over that change.

These are not the actions of a state that considers itself constrained by any meaningful constitutional principle. These are the actions of a state that has read the Eighth Amendment, noted that it says “cruel AND unusual,” noted that hundreds of rapes in state custody are in fact, tragically, not unusual — and concluded that it owes nothing beyond the statutory cap.

On the amendment’s own terms, the state is probably right.

VI. Cruel and Constant

I don’t know how to make this clearer.

The Eighth Amendment to the United States Constitution, as written, protects you only from punishments that are both horrible AND rare. That means the more often a government does something horrible to its citizens, the less protection the amendment offers. It rewards routinization. It punishes outliers. It protects against the one-off torture and signs off on the institutional torture.

The New Hampshire Department of Corrections figured this out a long time ago. So did the Attorney General. That’s how we end up with a secure psychiatric unit inside a prison, running for forty years, burying at least three people — and technically not violating the Constitution. That’s how we end up with a $38 million jury verdict for years of child rape being argued down to $475,000 on the theory that the rapes were repetitive enough to constitute a “single incident.” That’s how we end up with a 1977 federal ruling against New Hampshire’s prison conditions that, half a century later, is still being litigated because the state never fully complied.

The amendment didn’t fail in any of these cases. It worked exactly as written. It said: if you make the cruelty routine, it’s constitutional. And New Hampshire, like every other state, made the cruelty routine.

The phrase is supposed to be cruel and unusual. But read the text, look at the facility in Concord, read the state’s Supreme Court brief in Meehan, and then tell me what we actually live under.

Not cruel and unusual. Cruel and constant.

And in the state of New Hampshire, in April of 2026, that’s perfectly legal.