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February 16, 2022

Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists?

The question in the title of this post is prompted by this New York Times article discussing this notable recent Supreme Court petition raising an Eighth Amendment challenge to extreme solitary confinement.  The headline of the NYTimes piece sets the table: "27 Years in Solitary Confinement, Then Another Plea for Help in Texas: Dennis Hope, who has been held in solitary confinement in a Texas prison for more than half his life, asked the Supreme Court to set limits on prolonged isolation."  I recommend the full NY Times piece, and here are excerpts (with links from the original):

Dennis Hope has spent 27 years in solitary confinement in a Texas prison, in a cell that is 9 feet long and 6 feet wide — smaller than a compact parking space.  “It’s three steps to the door and then turn around and three steps back,” Mr. Hope, 53, wrote in a recent letter to his lawyers.

His only human contact is with the guards who strip-search and handcuff him before taking him to another enclosure to exercise, alone.  He has had one personal phone call since 1994, when his mother died in 2013.  He suffers from depression and paranoia and fears he is going insane.

Last month, Mr. Hope asked the Supreme Court to consider whether such prolonged isolation can violate the Eighth Amendment, which bars cruel and unusual punishments.

Prison officials in Texas do not seem concerned about Mr. Hope’s lawsuit. Last week, they told the Supreme Court that they waived their right to respond to his petition seeking review in his case, Hope v. Harris, No. 21-1065.  In their appeals court brief, the officials wrote that “Hope has no plausible Eighth Amendment claim.”...

[I]t is quite rare for prisoners to spend decades in isolation.  “We’ve only identified 12 prisoners outside of Texas who have spent more than 20 years in solitary confinement and who aren’t on death row,” said Easha Anand, one of the lawyers from the Roderick & Solange MacArthur Justice Center representing Mr. Hope.  She acknowledged, however, that complete data are hard to come by.

Mr. Hope was sentenced to 80 years in 1990 for a series of armed robberies and landed in solitary after he escaped from prison in 1994.  He eluded capture for about two months, during which he stole a car at knife point from an 83-year-old man and robbed four grocery stores.  In 2005, after 11 years in solitary confinement, a committee of prison security personnel concluded that Mr. Hope was no longer an “escape risk,” according to court papers.  But prison authorities have kept him isolated....

As the court has grown more conservative, the arguments against prolonged solitary confinement have shifted. Mr. Hope’s lawyers at the MacArthur Justice Center told the justices in his petition seeking review that the practice was inconsistent with the original understanding of the Eighth Amendment.

Solitary confinement was, they wrote, “unheard-of at the founding, attempted and quickly aborted in the following centuries, and resurrected only with Mr. Hope’s generation of prisoners.”  The petition drew on the work of John F. Stinneford, a law professor at the University of Florida whose work on the original meaning of the Eighth Amendment has been cited with approval by the court’s conservative majority in cases on methods of execution.

As a matter of text, I have quite a hard time coming up with a better set of adjectives than "cruel and unusual" to describe the decision of Texas prison officials to keep Mr. Hope punished with solitary confinement for nearly two decades after concluding he was no longer an escape risk.  So, though I might be just a simple-minded textualist, I would think most true textualists would see real strength in the argument that Texas is violating Mr. Hope's Eighth Amendment right to not have "cruel and unusual punishments inflicted."  Notably, the text of the Eighth Amendment speaks to punishments "inflicted" and not just those "imposed" (which is the term used for the prohibition of excessive fines).  This precise text of the Eighth Amendment has always led me to see all of actual punishment administration, and not just formal punishment imposition, to be of constitutional concern and part of what is constitutionally limited by the  text of the Eighth Amendment.

As a matter of original meaning, I have long been a fan of Prof Stinneford's effort to unpack and understand what an originalist approach to the Eighth Amendment might mean for modern constitutional law and limits on the infliction of modern punishment.  Critically, though, whether one fully embraces or questions Prof. Stinneford's Eighth Amendment analysis, I am not aware of any originalist arguments that the Eighth Amendment does not place some judicially cognizable limits on way defendants get punished.  Justice Scalia, in his 1991 originalist opinion assailing Eighth Amendment proportionality review in Harmelin v. Michigan, repeatedly noted that "the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment" and that "the Clause disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed" and that it "was designed to outlaw particular modes of punishment."  In other words, the O.G. originalist on the Supreme Court was quite clear that the kind of extreme punishment administration Eighth Amendment claim raised by Mr. Hope is exactly the type of constitutional claim that the Framers wrote the Eighth Amendment to be cognizable by courts.

I suspect there could and likely will be some advocates for extreme solitary confinement who develop textualist and originalist arguments to defend how Texas has been punishing Mr. Hope.  But, I still think any true textualists and/or any true originalists would still be quite inclined to grant certiorari on this significant claim so that the textualist and originalist arguments on these important matters could be developed through full briefing and thoughtful reflection.  But if these strong claims are just rejected entirely and summarily at the cert stage, I will be incline to think "fair-weather" textualism and originalism defines the work of many justices.  I want to believe strict fidelity to the text of the Constitution means more than reaching policy conclusions that a judge finds appealing, and maybe this case will restore my faith that some of the talk of textualism and originalism is not just about getting to certain results in certain cases.

February 16, 2022 at 11:47 AM | Permalink


This is the kind of dumb decision that gets courts more involved in running prisons. No one in their right mind thinks this is a good idea. And when you do things like that, courts tend to step in.

Posted by: Federalist | Feb 16, 2022 12:20:35 PM

Doug, you happy? I said this was dumb. Lol

Posted by: Federalist | Feb 16, 2022 12:21:08 PM

John Stinneford is a thoughtful and fair-minded guy and knows lots and lots about what the Constitution has to say about punishment. If the conditions are as he describes them, this particular instance of solitary confinement would certainly seem to be cruel and unusual punishment as any normal person would understand that term, and thus impermissible under the Eighth Amendment.

I might note that while John opposes capital punishment on policy grounds, he does not believe it is unconstitutional. I asked him that specifically at a FedSoc conference some years ago. He has it much better figured out than, for example, Justice Breyer.

Posted by: Bill Otis | Feb 16, 2022 1:19:33 PM

All your comments make me happy, Federalist. Indeed, every comment --- nice or mean, on-point or off --- serves for me as a pleasing reminder I am not just talking to myself here. Hope everyone is having a great day!

Posted by: Doug B. | Feb 16, 2022 2:01:54 PM

OK, but this would seem to have repercussions elsewhere. What does it do to the death penalty when many are on death row for 20 years? After all, “cruel and unusual” is cruel and unusual regardless of the crime. It’s cruel and unusual regardless of whether someone is deemed not an escape risk. It’s cruel and unusual regardless if someone is still a mortal threat to others.

At least, that is the argument I see DP opponents making. Unfounded?

Posted by: TarlsQtr | Feb 16, 2022 4:14:13 PM

TarlsQtr --

Good to see you back. You aptly describe an argument Breyer has been making for some time, to wit, if a killer persists long enough in filing year after year of silly petitions, he can't be executed because all the delay has added cruelty into his sentence! This is similar to another argument I've seen a few times, to wit, that if the prisoner eats his way to clocking in at 400 pounds or so, he can't be executed because finding a vein for the needle would be too hard, given all the flab.

You gotta love these guys.

Posted by: Bill Otis | Feb 16, 2022 6:35:00 PM

TarlsQtr: as a textualist, I read the terms "cruel and unusual" in light of asserted justifications. If a prisoner repeatedly escapes or attacks other inmates when not in extreme solitary, then extreme solitary seems necessary and not "cruel and unusual." But without any stated justification for 17 years, these constitution term support the notion that extreme solitary amounts to a unconstitutional punishment being inflicted. (Of course, the remedy is seemingly just to give the guy a little more "usual" prison experience with more phone calls and other human interactions.)

Because I have never fully understood how best to assess originalist approaches to the Eighth Amendment, I will defer here to Justice Scalia's phrasing of "cruel methods of punishment that are not regularly or customarily employed." My sense is that solitary IS regularly and customarily employed for those who are especially dangerous or flight risks, but that it is not usual for prisoners 15+ years after a prison security personnel concluded there were no such risks.

That all said, the concerns you raise provide further support for my recommendation that SCOTUS grant cert on this issue so that we can get full briefing and exploration of the particulars of this case and any/all textual and originalist and other arguments on this matter from may diverse perspectives. Do you share my view that this is a matter that merits Supreme Court attention?

Posted by: Doug B. | Feb 16, 2022 10:51:58 PM

I still maintain that the 8th amendment's purpose was to reject certain gruesome spectacle and nothing more, no proportionality requirement, no evolving standards of decency. Things that by their very nature are torture. In this sense something does not become "cruel" simply by being prolonged.

If his being in solitary was constitutional on day 1 it is also constitutional on day 10,000. The only reason they cannot immediately put all prisoners in solitary and keep them there for the entire length of their sentence is one of administrative convenience, not legality.

Posted by: Soronel Haetir | Feb 17, 2022 11:44:33 AM

Soronel: Do you think that an average person --- now or back in 1789 --- would say that forcing someone to listen to music they hate one time is the same as making them listen to that song 10,000 times? I do not think it would be fair to call it "cruel" if someone forces me to listen just once to a bad song, but I suspect most would call it cruel to be forced to listen to that song 10,000 times in a row. Similarly, being forced to endure 105 degree heat for an hour may not be cruel, but being forced to endure that for 10,000 hours surely could be considered cruel ESPECIALLLY if there is no sound reason for being subject to this extended hot treatment. I think common textual understanding suggests things can become cruel if prolonged, especially if no sound justification is given for the prolonging other than seemingly the desire to inflict pointless suffering.

That said, this again seems like an important issue worthy of full briefing and deliberation. Do you share my view that this is a matter that merits Supreme Court attention?

Posted by: Doug B. | Feb 17, 2022 12:33:05 PM


Given that the court below reached the right answer (though I haven't looked to see if I agree with their reasoning) I don't see much point in the Supreme Court weighing in. Every case they take is another chance for them to screw up. In that respect I am very pleased with the number of cases taken in recent years.

Regarding your couple hypothetical examples, neither bad music or excessive heat are gruesome in the sense I believe the 8th amendment prohibits. I might go so far as to say I do not believe the 8th amendment bars any psychological tortures at all; I have not given that question sufficient thought.

One example the court has been reluctant to address that I do believe is immediately gruesome in this sense are inmates forced to live in sewage-flooded cells, at least so long as the inmate was not the cause of the flooding. That, I believe, should instantly qualify, not some nebulous dividing line where overnight is fine but a week (or some other prolonged time) somehow is not. Of course, if the inmate was in fact the cause then I would say they can just live with it for any amount of time.

Posted by: Soronel Haetir | Feb 17, 2022 6:40:45 PM

If it’s constitutional not to put you on an IV on day 1 of your fever it’s constitutional on day 10,000.

If it’s constitutional not to amputate your gangrenous leg on day 1 it’s also constitutional on day 10,000.

If it’s not real punishment to make you write on the blackboard “I won’t do it again” 1x then making you write it 10,000 times isn’t real punishment either.

If 1 grain of sand isn’t a heap then 10,000 isn’t either.

If they can call you bald with just 1 strand of hair then they can call you bald with 10,000.

If just one example of the problem with this idea won’t persuade you to change your mind then neither will 10,000.

And lastly — if sitting on the tarmac for 10 minutes isn’t enough to exhaust other means of amusement on the internet then after what feels like 10,000 minutes you apparently start challenging your inner internet troll on Doug’s blog….sorry about that.

Here’s the thing though — this guy should definitely get relief. 27 years in solitary confinement is barbaric.

Posted by: MP | Feb 17, 2022 10:02:41 PM

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