Getting rid of indoor smoking in prisons is about as popular as replacing jelly-filled donuts with cold gruel in the chow hall.

A review team told Gov. Ted Strickland that the new state law banning indoor smoking is among the five most controversial regulations in the prison system. Though a ban has been in place since November 2005, some question how widely it is being enforced.

About 70 percent of Ohio’s 48,500 inmates and an unknown percent of the department’s 14,400 staff smoke. That’s compared to 20.9 percent of American adults.

For years, prison officials resisted going smoke-free, saying it could result in unrest and turn tobacco into contraband. Ironically, smoking has been prohibited on death row. The 2005 ban on indoor smoking mirrors the new state law that took effect Dec. 7.

Prisons spokeswoman Andrea Dean said the new policy hasn’t led to increased violence. But the smoking ban has been haphazardly enforced, said Attorney David Singleton, executive director of the Ohio Justice and Policy Center, a legal clinic in Cincinnati.

“It may not be going over well with prisoners because a lot of prisoners like to smoke. But there needs to be a way to protect those prisoners who don’t want to be around second-hand smoke,” Singleton said. “In fact, we are contemplating litigating the lack of enforcement of the smoking ban within the prisons.”

The argument in such a case: second-hand smoke exposure is cruel and unusual punishment.

“They cannot be deliberately indifferent to a serious medical needs,” Singleton said. That argument has been used with mixed results in other states.

Some prisoners have complained about the smoking, but fear retaliation if they snitch on guards or fellow inmates, said Singleton and SmokeFreeOhio, an anti-smoking coalition that campaigned for the new state law.

Dean said the department received 32 inmate grievances regarding smoking in 2005 and 55 in 2006.

“If an inmate is really having a problem, it is addressed,” she said.

Tracy Sabetta of the SmokeFreeOhio, which campaigned for the state law, said “We hear from inmates on a fairly regular basis that the (prison smoking policy) is not being enforced in their particular facilities. I get complaints from all across the state. And there is fear of retribution. They don’t feel they can go to the wardens or supervisors.”

Source: Dayton Daily