New Fact Sheet on Solitary Confinement and the Law

September 19, 2011 Solitary watch

by James Ridgeway and Jean Casella

Our latest fact sheet lays out the legal context in which the practice of solitary confinement has been carried out in U.S. prisons and jails. It discusses how the Constitution has historically been interpreted to limit–or allow–solitary confinement, and includes a section on international law.

FACT SHEET — Solitary Confinement and the Law

The fact sheet was written by Jennifer Wedekind, a recent graduate of Georgetown University Law School who is currently working at the ACLU’s National Prison Project in Washington, D.C. She is also a journalist who has published work in Mother Jones and In These Times, and has been a guest author on Solitary Watch.

A considerable number of the prisoners fell,
after even a short confinement, into a
semi-fatuous condition, from which it was next to
impossible to arouse them, and others became
violently insane, others, still, committed
suicide, while those who stood the ordeal better
were not generally reformed, and in most cases
did not recover sufficient mental activity to be
of any subsequent service to the community.
U.S. Supreme Court, In re Medley, 134 U.S. 160, 168 (1890)

The United States began employing solitary
confinement in its penal institutions more than
200 years ago, and its harmful effects were
almost immediately apparent and acknowledged by
the Supreme Court. However, with the exception of
limited legislation in a handful of states
restricting the use of solitary confinement for
the mentally infirm, there are no laws in the
United States prohibiting the practice.

The main tools used to challenge solitary
confinement are the Eighth and Fourteenth
Amendments of the Constitution. Even when
applying these weighty standards, the courts have
still not found the use of solitary confinement
by itself to be unconstitutional.

The Eighth Amendment

The Eighth Amendment of the Constitution
prohibits cruel and unusual punishment. The
Supreme Court has held that this standard can be
applied to prison conditions, including solitary
confinement. However, with one exception, no
court has found that solitary confinement violates
the Eighth Amendment.

To show an Eighth Amendment violation, a two-part
test must be met: 1) the action or condition must
be objectively serious, and 2) prison officials
must be \deliberately indifferent. to the harm
caused by the action or condition.

This analysis was applied in the leading case of
Madrid v. Gomez, a class action suit brought by
prisoners in California's Pelican Bay State
Prison alleging a range of Eighth Amendment
violations including excessive force, inadequate
physical and mental health care and inhumane
conditions in the prison's Secure Housing Unit.
Regarding the first prong of the Eighth Amendment
test, the court found that \[t]he Eighth
Amendment simply does not guarantee that inmates
will not suffer some psychological effects from
incarceration or segregation."

The Gomez court ruled that the degree of
psychological trauma inflicted on the average
prisoner is not enough by itself to create an
Eighth Amendment violation. However, for
prisoners with pre-existing mental health
conditions and those with an unreasonably high
risk of suffering mental illness, being subjected
to solitary confinement conditions may be serious
enough to constitute cruel and unusual punishment
in violation of the Eighth Amendment, according
to the court.

Regarding the second prong of the Eighth
Amendment analysis, the Gomez court found the
deliberate indifference requirement was met, as
prison officials were aware of the mental health
risks of placing prisoners in solitary, yet did
it regardless.

The Gomez court, along with most courts that have
ad-dressed the issue of solitary confinement,
dealt only with short-term stays in solitary.
However, according to the Supreme Court, the
"length of confinement cannot be ignored" in
determining whether a particular restriction
constitutes cruel and unusual punishment. No
court has specifically addressed claims of
prisoners who have been confined to solitary on a
virtually permanent basis, and this may be an area
ripe for future litigation.

The Fourteenth Amendment and Due Process

The Due Process clause of the Fourteenth
Amendment holds that no state may "deprive any
person of life, liberty or property, without due
process of law." "Due process" generally requires
a hearing before an impartial decision-maker
during which evidence can be presented and an
individual can defend his or her interests, even
if in a very informal manner. To make a due
process challenge, a plaintiff must first show
that his or her right to life, liberty or property
is threatened.

When applied in the prison context, the courts
have consistently stated that prisoners retain
only the most limited liberty interests and
courts are exceedingly deferential to the decisions
of prison administrators.

In Wilkinson v. Austin, the Supreme Court
examined the procedures used in assigning
prisoners to Ohio's supermax facility, the Ohio
State Penitentiary. The Court determined that
prisoners do have a protected liberty interest in
avoiding placement in a supermax facility.
However, in coming to its decision, the court
distinguished between the indefinite-ness of
supermax placement as opposed to the temporary
nature of disciplinary segregation.

Regarding disciplinary segregation, the Court
ruled in Sandin v. Conner that prisoners have no
liberty interest in being taken out of the
general prison population and temporarily placed
in administrative segregation because the nature
of the conditions in solitary "did not present a
dramatic departure from the basic conditions of
[the in-mate's] sentence." The Court implied that
if a transfer were to impose "a typical and
significant hardship on the inmate in relation to
the ordinary incidents of prison life" a liberty
interest may be found, however no definitive
baseline for that standard has yet been defined.

If a liberty interest is implicated, adequate due
process must then be provided. In Wilkinson, the
Supreme Court required that a prisoner be given a
statement of reasons for why he or she is being
assigned to a supermax facility and there be an
opportunity for the prisoner to be heard on the
issue. After a decision is made, a short
statement of reasons must be provided.

The Supreme Court has also ruled that meaningful
periodic hearings must be held to ensure that
administrative segregation is not a "pretext for
indefinite confinement." Scholars and advocates
express concerns that in the supermax context,
any periodic hearing held is a mere formality
without any true review of the individual's
situation. Were a claimant to definitively show
that these re-views were a sham or the outcome
was predetermined, it would be a violation of
due process.

International Standards

The Supreme Court acknowledges that its
interpretation of the Eighth Amendment must not
be "static" and the Court is increasingly looking
to international standards to define "cruel and
unusual punishment."

European bodies have taken a particularly
progressive view on the use of solitary
confinement, allowing it only after a medical
examination certifies the prisoner fit to sustain
the isolation and with daily monitoring of the
prisoner's psychological state. Additionally, the
Council of Europe's European Committee for the
Prevention of Torture stated that solitary
confinement can rise to the level of inhuman and
degrading treatment and "should be as short as
possible."

The Committee Against Torture  the governing body
of the Convention Against Torture, to which the
United States is a party  has recommended that
solitary confinement be abolished entirely
because of its potentially harmful effects on
prisoners' mental and physical health.


1. Lobel, J. (2008), .Prolonged Solitary
Confinement and the Constitu-tion,. Journal of
Constitutional Law, 11: 118-119.
2. See National Religious Campaign Against
Torture, Torture in U.S. Prisons,
http://www.nrcat.org/index.php?option=com_content&task=view&id=541&Itemid=394.
3. Hutto v. Finney, 437 U.S. 678, 685 (1978).
4. Ruiz v. Johnson, 37 F. Supp. 2d 855, 91415
(S.D. Tex. 1999) (reversed on other grounds).
5. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
6. Madrid v. Gomez, 889 F.Supp. 1146, 1264 (N.D. Cal 1995).
7. Id. at 1265-66.
8. Id. at 1267.
9. Hutto v. Finney, 437 U.S. 678, 686 (1978).
10. Lobel, at 120.
11. See, e.g., Hewitt v. Helms, 459 U.S. 460, 467 (1983).
12. 545 U.S. 209, 220 (2005).
13. Id. at 224.
14. 515 U.S. 472, 485 (1995). Note that
previously the Supreme Court had found a liberty
interest in being placed in administrative
segrega-tion (Hewitt, 459 U.S. at 470-71),
however the methodology used in that case was
abrogated by later cases.
15. See Wilkinson, 545 U.S. at 223.
16. Id. at 226.
17. Hewitt, 459 U.S. at 477 n.9.
19. See Lobel, at 126, citing Ryan v. Ill. Dept
of Children & Family Servs., 185 F.3d 751, 762
(7th Cir. 1999) (producing .evidence that the
decision has already been made and any hearing
would be a sham. sets forth a procedural due
process claim); Patrick v. Miller, 953 F.2d 1240,
1245 (10th Cir. 1992) (holding that due process
requires an impartial tribunal that has not
predetermined facts); Francis v. Coughlin, 891
F.2d 43, 46 (2d Cir. 1989) (.[I]t is axiomatic
that a prison disciplinary hearing in which the
result is arbitrarily and adversely predetermined
violates [the right of due process]..); Wagner v.
City of Memphis, 971 F. Supp. 308, 319 (W.D.
Tenn. 1997) (finding that the Mayor
predeter-mined the hearing and thus violated
plaintiffs' procedural due process rights).
20. Trop v. Dulles, 356 U.S. 86, 101 (1958).
21. Roper v. Simmons, 543 U.S. 551, 575 (2005).
22. Recommendation No. R (87) 3 of the Committee
of Ministers to Member States on the European
Prison Rules, Rs. 38(1), 38(3) (1987), available
at
http://www.coe.int/T/E/Legal-affairs/Legal-co-operation/Prisonsandaltematives/Legal-instruments/Rec.R(87)3.asp.


23. European Comm. for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
(1992), 2d General Report on the CPT's Activities
Covering the Period 1 January to 31 December 1991
56, available at http://www.cpt.coe.int/en/annual/rep-02.htm.
24. Lobel, at 123.

Fact Sheet by Jennifer Wedekind. © 2011. Please
cite Solitary Watch and the original sources when
quoting from this document. Contact information:
Solitary Watch, PO Box 11374, Washington, DC
20008 / solitarywatchnews@gmail.com.