In the 1992 case Helling v. McKinney, the United States Supreme Court ruled that prison conditions may represent cruel and unusual punishment, even if they do not cause physical injury. The plaintiff was a Nevada prisoner who claimed his cellmate's smoking habit constituted cruel and unusual punishment as it posed an unreasonable risk to his future health. He argued that exposure to secondhand smoke violated his Eighth Amendment rights. Initially, lower courts dismissed the claim stating that only deliberate indifference causing actual serious harm could be considered unconstitutional under the Eighth Amendment. However, on appeal, the Supreme Court reversed this decision in a 7-2 vote asserting that potential future harm could also constitute an Eighth Amendment violation if it is sufficiently serious enough and officials are deliberately indifferent towards it.

In the dissenting opinion for Helling v. McKinney, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, argued that the majority's decision expanded Eighth Amendment protections beyond their historical boundaries. They contended that while conditions of confinement can constitute cruel and unusual punishment if they involve "wanton and unnecessary infliction of pain," this should not extend to potential future harm from environmental tobacco smoke (ETS). The dissenters believed there was no precedent for an inmate's right to be free from possible future injury due to ETS exposure. Furthermore, they expressed concern about the implications of allowing courts to decide what constitutes a reasonable level of risk in prison environments — a task more suited for legislatures or prison administrators than judges. Finally, they warned that this ruling could open floodgates for prisoners' lawsuits over other potential health risks in prisons.