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September 11, 2015

"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "

The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:  

Solitary confinement irreparably harms people.  For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”  U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....

[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional.  Yet, despite this unequivocal condemnation of solitary confinement by the nation’s highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation.  Today, conservative estimates place the number of people in solitary confinement at over 100,000.  And they are there largely with the blessing of the federal courts.

While the Eighth Amendment’s prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement.  Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S.  Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation.  Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.

September 11, 2015 at 01:06 PM | Permalink

Comments

Interesting brief including the usage of "dignity":

"In the last 220 years, the Justices have invoked the term in more than 900 opinions, with an uptick in its use by the Roberts Court following a brief period of non-use during the Burger and Rehnquist eras."

Posted by: Joe | Sep 11, 2015 1:45:29 PM

Solitary confinement is not only safer and beneficial to others, but is the same for the confined.

The Supremacy feels totally pushed around and humiliated by the government, by the out of control regulators, and by the vile feminist lawyer.

Posted by: Supremacy Claus | Sep 11, 2015 3:41:06 PM

Hard to say that something so many are subjected to is 'unusual', it sounds very usual to me.

Posted by: Soronel Haetir | Sep 11, 2015 6:39:53 PM

Solitary confinement irreparably harms people. For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.” U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....

Thank you for your ipse dixit from 1890, by someone who had never experienced solitary confinement in prison.

Here is a well designed study. Shows benefit to the confined.

http://www.jaapl.org/content/41/1/49.abstract?ijkey=2e9a49aa83468182be51f0dc9c4bab311f19726b&keytype2=tf_ipsecsha

Posted by: Supremacy Claus | Sep 11, 2015 7:03:17 PM

It is an interesting question on what to do when something that might be inhumane becomes common but one thing that is necessary here is to break down the usage including length of time and factors used to determine need. What is "unusual" depends on what standards you use. The term at times in the constitutional sense can mean "unauthorized" as well. "Cruel and unusual" also is often used as a term of art.

Anyway, especially as applied to state prisoners, there is a general substantive "liberty" interest, so if whipping in prison became common, it still might be unconstitutional.

Posted by: Joe | Sep 12, 2015 12:28:05 PM

(I say "especially" since state restraints are generally arising from the 14th Amendment and its general terms, while the feds are more directly tied to the Bill of Rights. I would add to that some argue international human rights standards apply here too, treaty obligations involved etc.)

Posted by: Joe | Sep 12, 2015 12:30:17 PM

Whipping is an effective tool to maintain discipline, and to reduce the staffing of a prison. That is why it is not permitted. The alternative to segregation is more staffing, and that is the agenda behind seemingly, really stupid, humanitarian arguments. They are not stupid at all. They are money grubbing.

Posted by: Supremacy Claus | Sep 13, 2015 5:43:30 PM

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