Late in the night of Tuesday, March 7, Supreme Court Justice Stephen Breyer issued one of the Supreme Court’s starkest opinions yet that solitary confinement may violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Depending upon the future makeup of the Supreme Court and the cases it accepts for review, it also presents the possibility that the Court could find all or some uses of solitary confinement unconstitutional.

Breyer’s comments were made in dissent from the Court’s refusal to issue a stay of execution for Rolando Ruiz, convicted in 1995 of carrying out a murder for hire in Texas. In Ruiz v. Texas, the plaintiff’s attorneys had argued that his execution should be delayed because of a number of technical flaws in earlier court proceedings and because he was subject to “lengthy incarceration in traumatic conditions” that they argued constituted cruel and unusual punishment. These conditions included “permanent solitary confinement” lasting twenty years. After a delay of several hours while the court considered—and turned down—his appeal, Ruiz was put to death at the Texas State Penitentiary at Huntsville at 11 pm on March 7.

In his comments, Breyer cites a 127-year old case in which the Supreme Court recognized the many harms of solitary confinement. In In Re Medley (1890), the Court performed a historical analysis of the use of solitary, which had been pioneered by American prisons a century earlier. The Court found that overall, “experience demonstrated that there were serious objections” to solitary confinement, and described those objections as follows:

A considerable number of the prisoners fell, after even a short confinement, into a semi- fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.

Based on these conclusions, according to the In Re Medley decision, the nascent penitentiary system of the United States was “modified” because “its main feature of solitary confinement was found to be too severe.” In fact, it would be nearly a century before solitary was once again used on a mass scale in American prisons.

Following his discussion of the 1890 court case, Breyer cites an opinion written by another sitting Justice less than two years ago. In Davis v. Ayala, which was also ultimately about capital punishment, Justice Kennedy issued a landmark concurrence in which he departed from the “precise legal questions presented by this case” and urged the Court to consider the question of whether solitary confinement may constitute impermissible cruel and unusual punishment. Justice Kennedy, in his concurrence, also cited In re Medley, in addition to writings ranging from a Charles Dickens novel to a British textbook on prisons to a New Yorker article on the story of Kalief Browder’s abuse and solitary confinement on Rikers Island.

Breyer, in noting that Ruiz’s solitary confinement inflicted suffering with a “particular intensity” because it preceded his own execution, invoked Kennedy’s own words from two years earlier to remind the Court that this case presented an opportunity to hear the challenge that Kennedy called for. Breyer quoted Kennedy as recognizing that a “human toll” is “wrought by extended terms of isolation,” and that “[y]ears on end of near-total isolation exact a terrible…price.” Kennedy had stated that the Court should examine whether solitary violates the Eighth Amendment whenever a relevant case presented itself. Breyer lamented the fact that the majority of the Court—including Kennedy himself—had not chosen to use the Ruiz case to “conduct that constitutional scrutiny.”

Breyer acknowledged the growing body of scientific evidence of the damage caused by prolonged prison isolation, noting that “Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.”

“If extended solitary confinement alone raises serious constitutional questions,” Breyer concluded, “then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”

Will the Supreme Court eventually have the opportunity to fully consider the constitutionality of solitary confinement, as Justices Breyer and Kennedy apparently desire? With tens of thousands of Americans still subject to the practice, and increasing numbers of challenges to solitary being made in the federal courts, it is bound to happen eventually.

What might happen in such a case remains to be seen. Even assuming the confirmation of Neil Gorsuch, Kennedy would presumably remain the swing vote in such a case, until such time as another Justice leaves the Court. And Kennedy has not only denounced solitary confinement, but in a separate case affirmed that “prisoners retain the essence of human dignity inherent in all persons.”

In addition, Supreme Court precedent on interpretation of the Eighth Amendment states that the definition of what constitutes cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Legal opinion, as well as public and professional opinion on solitary confinement are certainly evolving. Yet overall, the federal courts remain extremely deferential to prison officials in determining what is necessary to preserve the “safety and security” of their facilities.

As a matter of interest, Judge Gorsuch, by his own account, should have directly encountered the issue of solitary confinement in his distant past—but there is no evidence that he actually did.  In announcing his nomination of Gorsuch, Donald Trump stated: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.” Among other things, students involved in the Harvard Prison Legal Assistance Project sometimes represent incarcerated individuals facing disciplinary hearings on charges that often land them in solitary.

According to an article in the Wall Street Journal, however, of “roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard Law School from 1988 to 1991,” only one had a vague memory of him briefly being involved with the Harvard Defenders. No one who worked with Harvard Prison Legal Assistance Project at the time remembered him ever doing anything at all.

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