United States Supreme Court Justice Anthony Kennedy was neither leading nor following nor getting out of the way when he used a concurrence in Davis v. Ayala, a case about racial bias in jury selection, to express his growing concern about the constitutionality of solitary confinement as it currently is practiced in America. He was instead proclaiming, as only a sitting swing-justice can, that the time has come at last for a serious reevaluation of the humiliating practice, still so prevalent across the country, and that litigants with particularly compelling claims should step forward and press their cases and causes in federal court.
Earlier this month, an unlikely group of advocates were among the first to take up Justice Kennedy’s call. Sixteen former corrections officials, including some of the nation’s leading experts on the grim toll long-term solitary confinement takes on those so confined, filed a friend-of-the-court brief asking the Supreme Court to review a due process challenge to Virginia’s policy of automatically placing death row inmates into isolated detention. The amicus filing, largely ignored by the media, may be one of the more significant milestones in the nation’s nascent awakening to the extent of the damage done by solitary confinement.
The case is not a direct Eighth Amendment “cruel and unusual” challenge to the odious practice of solitary confinement. That case will come soon enough. Instead the Virginia case raises the question of whether prison officials can continue to implement a blanket policy that condemns men to solitary for years, or decades, solely by virtue of their status as death row inmates. The filing is definitive proof of a changing consensus on isolated detention that the justices should not ignore: even the men and women who have been implementing such detention policies for the past decades have come to realize that it is both unlawful and immoral.
Why are so many former corrections officials, so many law-and-order types, asking the Supreme Court to accept the Virginia case for review?
To underscore the severe physical and mental hardships that death-sentenced inmates must endure as a result of the extreme isolation, the lack of a penological justification for automatic and permanent solitary confinement for all death-sentenced inmates, and the safe, constitutional alternative of individual classification that substantially benefits the corrections system.
These are the men and women who have been implementing some of the very practices and policies they now decry. And the arguments they are making are neither technical nor obtuse. Before Virginia places condemned men in solitary confinement, where they likely will linger for a decade or so, prison officials at a minimum ought to engage in an individualized assessment of each prisoner to determine whether, in fact, such isolated detention is necessary for prison security or advisable given the statute of each prisoner’s physical or mental health. We know that solitary confinement makes men mad. We also know that many inmates engage in prison behavior that lands them in solitary because they are mentally ill to begin with. Surely “due process” requires more than what Virginia currently offers.
“Inmates who are sentenced to death are not more violent than other groups of inmates and are actually less violent than other groups of inmates,” the corrections officials told the justices. And then those experts cut down one hoary justification after another offered by Virginia officials in defense of their policy. Death row inmates do not act as though they have nothing to lose. Prison safety does not depend upon throwing all death row inmates in isolation. The same classification that Virginia prison officials use for general population prisoners could easily be adapted to capital murderers.
As clear as it is that there is no rational justification for throwing all condemned men into isolated detention it is just as clear that solitary confinement is hazardous to the men confined to it. “As amici have witnessed in their years of experience,” the corrections officials told the justices, “it is not unusual for inmates in solitary confinement to swallow razors, smash their heads into walls, compulsively cut their flesh, and try to hang themselves.” Just ask the plaintiffs in the ongoing federal case against the Bureau of Prisons for its deplorable treatment of mentally ill men at the ADX-Florence in Colorado. Or ask those who care about Sam Mandez.
It’s bad enough that such a general rule deprives each prisoner of the right to be viewed as an individual. What makes the Virginia policy worse is that quite often men leave death row there alive because of wrongful convictions or sentences. Since 1975, the officials wrote in their brief, “twenty five of the 149 inmates sentenced to death in Virginia—almost twenty percent—have obtained relief and left death row.” These men were automatically sent into solitary confinement for years without having violated any prison rules or engaged in any illegal behavior following their incarceration.
This is not the case that is going to end widespread solitary confinement in America. But it is a case the Court could use to begin to give effect to Justice Kennedy’s concerns. And it is a case that historians might one day consider a stepping stone along a path leading us away from bureaucratic policies and practices that treat people this way.