Supreme Court Smoke Signals: Three Justices Aim to Take On Solitary Confinement

These justices are going out of their way to take long-term isolation to task.
Solitary confinement has repeatedly been criticized in recent Supreme Court opinions. (Photo: Mandel Ngan/Getty Images)
Jul 1, 2015· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

In recent weeks, the U.S. Supreme Court expressed support for same-sex marriage, controversial lethal injection drugs, and the president’s namesake health care plan, all while three justices went out of their way to criticize a prison practice that wasn’t the subject of any case before them: solitary confinement.

In two separate cases involving the death penalty, Justice Anthony Kennedy and Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, used their concurring and dissenting opinions to call out the United States’ widespread practice of isolating prisoners in tiny cells with little to no human contact.

“To have three Supreme Court justices strongly denounce solitary confinement in three weeks is extraordinary,” David Fathi, director of the ACLU’s National Prison Project, told TakePart. “Both opinions treat it as self-evident and entirely beyond dispute that it is profoundly damaging to people.”

In Monday’s dissent in the lethal injection case Glossip v. Gross, Breyer decried the “well documented” evidence that “prolonged solitary confinement produces numerous deleterious harms.” Earlier in June, Kennedy used just one sentence of his opinion about the court’s decision in Davis v. Ayala to say he agreed with its finding before spending the remainder of his four pages opining on the isolation of death row inmates. The case was about jury selection in death row defendant Hector Ayala’s case—not the conditions of his confinement.

The opinion in Ayala “clearly did invite a solitary confinement case,” Fathi said. When asked if he had seen this kind of bold invocation before, Fathi said, “I’m not aware of any precedent.”

Though Glossip v. Gross was about the controversial use of the lethal injection drug midazolam, Breyer made sure to point out that the United Nations special rapporteur on torture has urged countries across the world to ban the use of solitary confinement for more than 15 days at a time. The justice also wrote that the “dehumanizing effect” of long-term isolation is intensified by the stress a death row prisoner endures as his or her case is appealed and kicked back and forth between courts, leaving the individual's fate uncertain.

“To call a practice dehumanizing carries with it a strong presumption that it is unconstitutional,” Fathi said.

In his impassioned solitary confinement takedown, Kennedy reminded readers of the recent suicide of Kalief Browder, a New York City teen who was kept in solitary confinement for two years because he was suspected of stealing a backpack but was never tried. The prison system’s present regime of solitary confinement, Kennedy wrote, “will bring you to the edge of madness, perhaps to madness itself.” For Browder, this madness proved too much to bear.

In March of this year, Kennedy brought his anti-solitary advocacy to the House appropriations subcommittee at a hearing on the Supreme Court’s budget. Responding to a question about prison overcrowding, Kennedy told his audience that solitary confinement “literally drives men mad.” Because many states don’t track how many inmates are in solitary confinement and for how long, it’s difficult to know how many prisoners are in isolation at any given time. Experts estimate that between 25,000 and 80,000 people are in “restricted housing,” a corrections euphemism for solitary.

In 2005, the high court considered a case that asked whether or not conditions in a high-security Ohio “supermax” prison were so harsh that a special hearing should be required before prisoners were sent there. While a key element of the harsh conditions considered by the court was the prison’s use of solitary confinement, the opinion, also written by Kennedy, stood in sharp contrast to his opinion in the Ayala case. After describing the severe isolation experienced by Ohio prisoners, Kennedy even noted that “harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners.”

Examined side by side with Ayala, these opinions illustrate the evolution of Kennedy’s thoughts on solitary confinement. Whether or not such a case will rise to the highest court remains to be seen, but there are several notable cases challenging solitary confinement that, if not settled, could wind up before a powerful audience that seems more ready than ever to take the isolation of prisoners to task.