U.S. Supreme Court Justice Anthony Kennedy drew international attention last week when he went off the beaten path in a capital case about race and prosecutorial misconduct and practically invited a constitutional challenge to America’s pernicious use of solitary confinement in prisons and jails. He even invoked the tragic life and untimely death of Kalief Browder in doing so, jolting his cloistered colleagues into the grim world of life in isolated detention for the thousands of American prisoners who daily endure it.
Justice Kennedy signaled his deep doubt that solitary confinement comports with the Eighth Amendment in a case in which he ultimately sided with fellow conservatives in rejecting relief for Hector Ayala, a California death row inmate convicted of a gruesome triple murder. Ayala’s prosecutors exercised their peremptory challenges to dismiss from the jury pool all seven of the black and Hispanic potential jurors in the case and the trial judge allowed prosecutors to justify doing this outside of the presence of defense counsel. All of this was harmless error, the Court’s conservatives concluded in overturning the California Supreme Court.
Also siding with prosecutors in this case of claimed racial bias, also siding against yet another man of color in a death penalty case, was Justice Clarence Thomas. Like Justice Kennedy, he wrote a striking and heartfelt concurrence. And it deserves far more attention than it has received for what it says about Justice Thomas, his position on solitary confinement, and even his bold perceptions of the role of the judge as advocate. Here is the substance of Justice Thomas’ concurrence in Davis v. Ayala:
I write separately only to point out, in response to the separate opinion of Justice Kennedy that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.
This is an extraordinary thing for a judge, or a justice, to write (remember, 26 years ago, “Poor Joshua!”?) There is not a shred of recognition in it of the reality of solitary confinement or the growing legal and political opposition to its continuing use. It makes Justice Thomas sound like a prosecutor, or a victim’s advocate, or a victim himself, and it tells us as much about where Justice Thomas stands on the lawfulness of solitary confinement in America today as Justice Kennedy’s concurrence did before it (except without any of the analysis or citations to which Justice Kennedy referred).
The dire conditions of confinement under which Ayala is housed, Justice Thomas tells us, are “accommodations” capable of being “enjoyed.” This is nonsense, as anyone who knows anything about solitary confinement will tell you. Yet this is precisely how Justice Thomas will justify the continued use of solitary confinement if (when) Justice Kennedy’s longed-for case finally makes it to the Court. It’s not as bad as all the experts say it is, he’ll surely write, and the inmates should consider themselves lucky they haven’t already been executed given the crimes of which they’ve been convicted.
The paragraph is based on the premise that Ayala is better off than his murder victims, that a life of prison abuse and neglect in a tiny isolated cell is necessarily better than death, a premise that does not even enjoy support among death row inmates, let alone the rest of us. Worse, the passage tries to bring the victims back from the dead, comparing them today to the man who killed them. Yes, isolation cells are larger than caskets, if that was Justice Thomas’s point, but then so what? Does the Justice want to start housing death row inmates in pine boxes in the ground so their fate is equal to those of his victims? Does the Eighth Amendment permit that? Or, more likely, does he just want them dead, faster, without the due process the Ayala litigation represents?
In the end, if Justice Kennedy’s solitary confinement litigation comes to the Court as it is presently constituted, it won’t matter if Justice Thomas continues to nurture the fantasy that men in solitary confinement are getting away with a boondoggle. So long as Justice Kennedy wants to do something about isolated detention it will get done, in the form of a 5–4 ruling (or maybe 6–3 depending upon the Chief Justice’s inclinations). At that point, you can bet, Justice Thomas will write a rousing dissent in which he will sound once again like an angry prosecutor hammering home a closing argument on behalf of the good and decent citizens in whose name he believes he argues.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.