[Ppnews] Fact Sheet: Solitary Confinement and the Law

Political Prisoner News ppnews at freedomarchives.org
Mon Sep 19 12:11:09 EDT 2011


Fact Sheet: Solitary Confinement and the Law

News from a Nation in Lockdown
www.solitarywatch.com
http://solitarywatch.files.wordpress.com/2011/06/fact-sheet-solitary-confinement-and-the-law.pdf


“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. Dep’t 
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 at gmail.com.




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