Issues

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades, treating the imposition of solitary confinement as though it were a mere act of administrative discretion. This Essay asks whether the Medley Court or the modern Court is correct as a matter of constitutional law and concludes that the Medley Court is correct.

What aspects of human liberty does incarceration impinge? A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s. Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long- term isolation and to higher security levels. Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, and filth, violated the Constitution. Today, even as implementation is erratic and at times abysmal, correctional departments no longer claim they have unfettered authority to do what they want inside prisons walls. And, even as the courts have continued to tolerate the punishment of solitary confinement in the last decade, a few lower courts have held unconstitutional the profound sensory deprivations such isolation has entailed. Prisoners have also sought procedural protections to constrain arbitrary decision-making about placements in solitary confinement and transfers to adverse settings. In response, the Supreme Court has required that, to state a Fourteenth Amendment claim that their liberty had been infringed, prisoners have to demonstrate that a specific practice imposed an “atypical” and “significant hardship.” What is typical in prisons? What are the sources of knowledge and the baselines used by Justices to decide? How did isolation come to be seen as an ordinary incident of prison life? We answer these questions through analyzing debates in both the U.S. Supreme Court and lower courts about what deprivations in prison are “normal.” After excavating the conflicts within the Court about the kinds of liberty interests prisoners retained, we mined hundreds of lower court opinions to learn how judges determine when constrictions on human movement meet the test of atypicality and hardship. By documenting the high tolerance many federal judges have for periods of isolation lasting months, years, and decades, we demonstrate the central role judges play in constructing the “normal” of prisons.

In the last two decades of the twentieth century, prisons throughout the United States witnessed a dramatic rise in the use of solitary confinement, and the practice continues to be widespread. From the latter part of the nineteenth century until the 1970s and ’80s, prolonged solitary confinement in the United States had fallen into disuse, as numerous observers and the United States Supreme Court recognized that the practice caused profound mental harm to prisoners. The reasons for this dramatic rise in the nationwide use of solitary confinement and the development of new supermax prisons have not been explored in depth. In particular, there has been little critical discussion of the rise of mass prolonged solitary as a product of the mass incarceration of the last several decades of the twentieth century. This Essay locates the rise of mass solitary in the 1980s in the context of mass incarceration. It explains the dramatic expansion of the use of solitary confinement and the construction of new super-maximum (supermax) prisons as an attempt by prison officials and politicians to maintain control of prisons in the face of increasingly radicalized, rebellious prisoners—often, but not exclusively, African-American—who had organized protests and disobedient conduct in American prisons from the 1960s to the 1980s. The rise of solitary was connected to the use of mass incarceration as a form of social control. As society became more violent, so too did many prisons, but to view that violence as the underlying cause of the growth of supermax and other segregated confinement obscures the deeper, underlying causes of the rise of mass solitary. Those causes are linked to the rise of mass incarceration itself. Uncovering the history and causes of the dramatic rise in supermax prisons and the use of prolonged solitary confinement in the 1980s and ’90s is critical to understanding not only how we got to where we are, but how we can end this cruel and inhumane practice. The first Part of this Essay recounts the origins of the supermax prison at Marion Federal Penitentiary in the late 1970s and early 1980s and demonstrates that the rise of mass solitary was more an official reaction to the need to control politically active and disruptive prisoners than to the violence narrative. The second Part explores prison officials’ need to reassert control over their prisoners and draws the parallels between the rise of both mass incarceration and mass solitary as a racialized mechanism of social control. The third Part introduces the preventive paradigm as a model to control prisoners and demonstrates that the concept of preventing future misconduct fueled both mass incarceration and the modern supermax, resulting in minimizing due process restraints and erroneously isolating thousands of people. Finally, the last Part analyzes the current reform movement and the alternatives that have been proffered and utilized to replace solitary, supermax confinement. The Essay concludes that prolonged solitary confinement can be abolished, and that prison officials have alternatives that can safely manage even very dangerous prisoners.

The harmful effects of solitary confinement have been established in a variety of direct observations and empirical studies that date back to the nineteenth century, conducted in many different countries by researchers with diverse disciplinary backgrounds. This Essay argues that these effects should be situated and understood in the context of a much larger scientific literature that documents the adverse and sometimes life- threatening psychological and physical consequences of social isolation, social exclusion, loneliness, and the deprivation of caring human touch as they occur in free society. These dangerous conditions are the hallmarks of solitary confinement. Yet they are imposed on prisoners in far more toxic forms that exacerbate their harmful effects, are incurred in addition to the adverse consequences of incarceration per se, and operate in ways that increase their long-term negative impact. This broader empirical and theoretically grounded scientific perspective expands the harmfulness narrative about solitary confinement and argues in favor of much greater restrictions on its use.

This Essay argues against applying the so-called “physical injury” requirement of the Prison Litigation Reform Act (PLRA) to deny monetary compensation to solitary confinement survivors. The Essay identifies three ways in which misapplication of the PLRA’s physical injury requirement limits the ability of solitary confinement survivors to receive monetary compensation for psychological harm suffered. First, some courts applying the PLRA wrongly dismiss damages claims for alleging “de minimis” physical injury. Second, some courts have been reluctant to find that physical injury caused by psychological trauma satisfies the PLRA’s physical injury requirement. Third, courts do not distinguish between “garden variety” mental and emotional suffering and psychiatric illness in applying the physical injury bar. This Essay contends that this jurisprudence is inconsistent with the goal of preserving meritorious prisoner claims and should be reconsidered.

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states, Massachusetts and Indiana. In Massachusetts, early incremental reforms may be providing a blueprint for deeper depopulation of solitary confinement—though the matter is still highly contested. In Indiana, incremental reforms seem to be less effective at achieving deeper depopulation. I offer some hypotheses about the sources of the difference. The evidence suggests that for litigation to trigger broad reform, or significant steps towards solitary abolition, allies are required. In Massachusetts, the political ecosystem has many more reform-minded participants—activists, lawyers, judges, legislators—than does the much redder Indiana. Each such participant can build on the others. In Massachusetts, litigation’s strengths—information generation, thoughtful policy development (codified in settlement documents), publicity, and storytelling—can emerge. Weaknesses—the detachment of litigation from mobilization, hyper-empowerment of lawyers, undue affection for process— are ameliorated by other actors and other actions. The Indiana ecosystem is far less hospitable to solitary confinement change. There is no sign that the limited reformist measures in Massachusetts and Indiana have been perverse, as maximalists might predict. Neither state has seen an increase in the use of solitary confinement or reported worsening of conditions in solitary. In neither state is there any sign that the litigated amelioration of solitary confinement has entrenched or legitimated solitary confinement more broadly.

The use and abuse of solitary confinement in American prisons, jails, and juvenile detention centers is at epidemic levels. On any given day 80,000 to 100,000 people in prisons are subjected to a practice considered inhumane and degrading treatment—even torture under international human rights standards. Despite widespread international condemnation, decades of research demonstrating the harm it inflicts on human beings, and a growing chorus from the medical community raising alarms about its impact on the brain, solitary confinement remains a routine prison-management strategy in correctional institutions nationwide. In the past decade, however, a growing movement has emerged to challenge the use of solitary confinement. This movement is variously driven by civil society campaigns, the emergence of strong international human rights standards, allies in government, civil rights litigation, corrections leadership, and increasing levels of public information and media attention. The question remains whether the current reform movement will be sufficient to create a tipping point whereby solitary confinement is rejected as an acceptable practice in the American sociocultural context and legal landscape. This Essay examines the current factors driving the movement against solitary and posits that a national tipping point is possible with more concerted effort to shift public opinion; increased documentation, research and promotion of alternatives that allow for the safe, humane, and effective management of carceral institutions; and implementation of greater oversight and accountability in corrections institutions in the United States more broadly.