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.

  • Zoe Wyse

    Solitary confinement, and the accompanying social isolation often employed by prisons, causes extremely damaging effects that I believe would absolutely constitute cruel and unusual punishment. At the same time, if someone is an active danger, it is not realistic for correctional officers to let that person continue occupying the common space while they continue their dangerous behaviors. This creates a tension between what is humane and what is realistic.

    Isolation–depriving people of human contact–is not necessary even if a person needs to temporarily be in their own room. The amount of human contact that is needed to prevent the adverse effects of this practice is something that could be determined empirically. There is no reason that people cannot receive ample, warm human contact even if they need to be in their own room. The staffing demands of this are high. This might also increase motivation of correctional facilities to move people out of their own rooms if they don’t actually need to be there.

    How long people need to be in their own room is an equally important question. If someone is causing a great deal of trouble at one point, can prisons reasonably say that they are still known to be a danger three years later? Or five? Or ten? In reality, isolation itself is likely to make people worse, so they may well still be a danger, but the timeframes allotted for some of this solitary confinement is ridiculous.

    The concerns raised about institutional security–that is, prisons that feel that they cannot manage people in their facilities without solitary confinement–also suggest a need for more training for staff in the prisons. Many people currently in prison are going to be out in the communities following their sentences. If prison staff feel unable to manage their issues and behaviors in a highly controlled setting, how do they expect them to do in the community? If prison staff are not able to handle managing a certain level of risk and responding to situations in measured ways that combine effective use of force along with de-escalation and attempts to create humane and therapeutic communities, then they need to work harder on developing those skills. They can learn from other prison settings that have engaged in these efforts in the past.

    Isolation (that is, deprivation of human contact) should be regarded as cruel and unusual punishment. There is no security risk involved in having staff provide warm, ample human contact to anyone who needs to temporarily be in their own room. Setting limits on the length of time people can be in their own room that align with UN recommendations would be another reasonable step.

    There are obviously always going to be exceptions to the rule and this is what makes this work tricky. The fact is that there may be some people who are truly extremely heinous, devious and committed to harming anyone in any way they can. They may be imprisoned for life, and may need a much higher level of security. These situations should not prevent reasonable restrictions on the practice of solitary confinement. There may be exceptions to humane norms (that is, a few people who may need a higher level of security and to be in their own room for larger portions of time while still receiving ample, caring human contact from staff with re-evaluation of their risk as time passes). These situations should be shared and evaluated in a transparent and open way with the public and outside groups with an opportunity for input from legislators, etc.

    But everyone should receive human contact. Isolation (deprivation of nearly all human contact) is not necessary for security and it is also incredibly inhumane.