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May 16, 2018

"Will the Supreme Court Scrutinize Solitary Confinement? One Justice Offers a Map"

The title of this post was the headline of this Sidebar piece by Adam Liptak in yesterday's New York Times.  Here are excerpts:

Justice Anthony M. Kennedy is a fierce critic of solitary confinement. “It drives men mad,” he said in 2015 at Harvard Law School.  He attacked the practice in a 2015 concurring opinion. “Years on end of near total isolation exact a terrible price,” he wrote, noting that “common side effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”

Justice Kennedy concluded that opinion with an unusual request, inviting lawyers to file appeals challenging the constitutionality of prolonged isolation.  The requested appeals arrived, but the Supreme Court has so far turned them down.  The court, which typically moves in measured increments, may not want to take on a question as broad as whether extended solitary confinement is cruel and unusual punishment barred by the Eighth Amendment.

But the court will soon consider whether to hear appeals raising a much narrower question: Do prisoners held in solitary confinement have a right to regular outdoor exercise?

As it happens, Justice Kennedy has already answered that question.  Almost 40 years ago, not long after he became a federal appeals court judge, he wrote that prisoners held in solitary confinement have a constitutional right to a little fresh air once in a while.

“Some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates,” he wrote in 1979 for a unanimous three-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco. “It was cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside except for occasional court appearances, attorney interviews and hospital appointments.”

Justice Kennedy, who joined the Supreme Court in 1988, may now have the opportunity to establish that principle nationwide.  The new appeals were filed by several prisoners in Colorado. One of them, Donnie Lowe, 46, has spent almost his entire adult life in various prisons for various offenses.  He was held in solitary confinement for 11 of those years. Mr. Lowe’s lawsuit took issue with a decades-long blanket policy at the Colorado State Penitentiary that denied him outdoor exercise for the more than two years he was in solitary there....

The Supreme Court is not a fan of lawsuits seeking money from state officials for constitutional violations. But Mr. Lowe’s appeal, along with a companion case, present the court with the opportunity to tell the nation what the Constitution requires even if it rules in favor of the prison officials on the ground that the law used to be unclear. In a sign that the court might be interested in the cases, Lowe v. Raemisch, No. 17-1289, and Apodaca v. Raemisch, No. 17-1284, it ordered the officials to file responses to the plaintiffs’ petitions.

Justice Kennedy is nearing the end of a long judicial career, and he might think it fitting to return to an issue he considered just a few years after he first put on a robe. “Underlying the Eighth Amendment,” he wrote in 1979, “is a fundamental premise that prisoners are not to be treated as less than human beings.”

May 16, 2018 at 09:13 PM | Permalink


Berman deleted a comment rebutting the garbage claims in the above post.

Posted by: David Behar | May 17, 2018 12:12:57 AM

Yes, David, I have warned you that I would delete those of your comments that involve repetitive rants against lawyers and otherwise fails to contribute to a useful dialogue in this space. At times I contemplate deleting all your comments given that you have failed to live up to you word about leaving when asked after proof that your comments thwart and distort comments by others. I will ask you again to leave, but I fear you are still disinclined to live up to your prior representations. I will live up to mine by continuing to delete those of your comments that I feel are least productive.

Posted by: Doug B | May 17, 2018 10:35:12 AM

Is it productive or unproductive to rebut your false propaganda? That includes any change in the comments in my absence. I saw one decent legal analysis in the entire month, the rest was the same tired expressions of people's pro-criminal feelings, with no thought to victim suffering. It is so bad, you are even ignoring your own crime victimization and that of your family to further cult rent seeking. The academic title you use implies an educational purpose. This blog is 99% pro-criminal, and an advocacy not an educational blog. You need to either get more educational, or remove the misleading academic title.

Here. Read this for the 20th time about solitary confinement. "... statistically significant but small positive change over time across all groups." Solitary helps people when it is measured.

Untreated pre-existing conditions leading to solitary confinement are being blamed on solitary confinement. Why? The alternative to solitary is more staffing, and more government make work jobs. Who else here will bring up this criticism of your lawyer scam?


The use of administrative segregation for inmates with and without mental illness has generated considerable criticism. Segregated inmates are locked in single cells for 23 hours per day, are subjected to rigorous security procedures, and have restricted access to programs. In this study, we examined whether inmates in segregation would show greater deterioration over time on psychological symptoms than would comparison offenders. The subjects were male inmates, with and without mental illness, in administrative segregation, general population, or special-needs prison. Subjects completed the Brief Symptom Inventory at regular intervals for one year. Results showed differentiation between groups at the outset and statistically significant but small positive change over time across all groups. All groups showed the same change pattern such that there was not the hypothesized differential change of inmates within administrative segregation. This study advances the empirical research, but replication research is needed to make a better determination of whether and under what conditions harm may or may not occur to inmates in solitary confinement.

Posted by: David Behar | May 17, 2018 11:57:16 AM

How about, David, you try to ONLY provides cites/abstracts to research without gratuitous comments? That would be a GREAT way to be a productive and helpful contributor. To echo defendergirl, far too often your comments are "crude, unnecessarily personal and unpersuasive." But if you just stick to citing research (with links), there may be hope for you yet.

Could you do that, David? Just cite/reference research, and leave out the silly rants about the "Inquisition business model" and "worthless government make work jobs" and "left wing, Ivy radicalized, internal enemies" and "frickin' lawyer government morons" and "vile feminist lawyer profession."

As I have said before and will say again, it is NOT the substance of your message that is off-putting, it is how you choose to deliver it. I continue to tolerate your posts and delete fewer than I probably should because I view your eagerness to criticize existing law and lawyers as a potentially useful contribution to this space. But because you include so much extraneous feces in so many comments, the smell can become unbearable for me and others. That is why I ask you to leave. Because you seem unwilling to live up to a prior promise to leave, I am hoping maybe you will try to just present research and save the ugly comments for another venue.

Posted by: Doug B. | May 17, 2018 4:55:41 PM

Doug. I will try it your way.


Posted by: David Behar | May 19, 2018 2:05:58 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB