SOLITARY TROUBLES.

• Author: Reinert, Alexander A.

INTRODUCTION 928 I. A BRIEF HISTORY OF THE PRACTICE OF SOLITARY CONFINEMENT 937 II. LEGAL CONSTRAINTS ON THE USE OF SOLITARY CONFINEMENT 941 A. Solitary Confinement and Procedural Due Process 941 B. Solitary Confinement and the Eighth Amendment 944 1. Eighth Amendment Fundamentals 944 2. Judicial Deference Across Eighth Amendment Doctrine 946 3. Deference in Action 948 4. The Failure to Regulate Solitary Confinement Through the Eighth Amendment 950 III. A WAY FORWARD FOR JUDICIAL REGULATION OF SOLITARY CONFINEMENT 957 A. The Relevance of Sentencing Jurisprudence to Solitary Confinement Challenges 957 B. The Role of International Law in Eighth Amendment Regulation of Solitary Confinement 963 1. Review of Solitary Confinement in the United Nations 964 2. Solitary Confinement in the European Court of Human Rights 967 3. Solitary Confinement as Adjudicated by Other Regional Bodies 968 C. Solitary Confinement as a Dignitary Assault 970 IV. OVERCOMING JUDICIAL RELUCTANCE TO REGULATE EXTREME ISOLATION 973 CONCLUSION 975 INTRODUCTION

The use of solitary confinement, or extreme isolation, (1) is routine in the United States. Although precise figures are unavailable, best estimates suggest that about twenty percent of people in federal and state prisons and jails will experience some form of extreme isolation at some point during their confinement, with many of them held for more than thirty days. (2) On an average day, as many as five percent of people in federal and state prisons are held in extreme isolation. (3)

At the same time, extreme isolation has a significant deleterious impact on those who experience it. Mental health professionals who have studied its effects extensively have concluded that it is dehumanizing, striking at the core of a person's identity, and results in "deep emotional disturbances" and an increase in self-harming behavior. (4) It can lead to "social death," leaving persons subjected to the practice not only emotionally scarred and harmed, but also unable to function effectively in social contexts moving forward. (5) It is thus a special kind of punishment--"one of the most severe forms of punishment that can be inflicted on human beings short of killing them." (6)

Despite its ubiquity and impact, however, the doctrinal and theoretical framework for regulating its use is impoverished, leaving correctional administrators, for the most part, free to dispense extreme isolation as punishment whenever they see fit. The unfortunate result has been a trend over recent decades towards greater use of solitary, for longer periods of time, for less and less serious misconduct. (7)

This Article seeks to explain why punishment theory and doctrine--as elaborated by courts--have had little to say about the use of extreme isolation, and then to fill that gap by providing a new framework for understanding how the Constitution in particular could and should regulate solitary's use. There are good reasons to believe that a new way of thinking about solitary is necessary and will be welcomed by judges, lawyers, and academics. As just one example, Justice Kennedy surprised many criminal justice advocates with an unexpected concurring opinion in Davis v. Ayala. (8) In that opinion, Justice Kennedy railed against the vices of solitary confinement, reminding readers that in 1890, the Supreme Court itself observed that the practice was extremely harmful to prisoners and had been abandoned by the end of the nineteenth century. (9) Justice Kennedy made similar remarks, though less detailed, when he and Justice Breyer appeared before the House Committee on Appropriations in March 2015. (10) Justice Kennedy's concurrence was all the more remarkable because, as he acknowledged, the issue had "no direct bearing on the precise legal questions presented by this case. (11)

Justice Kennedy is not alone in paying greater attention to solitary confinement. The Federal "Administrative Maximum" ("ADX") unit in Florence, Colorado, has been the subject of lengthy news coverage, and in 2016, the Bureau of Prisons (BOP) agreed to make changes in response to a class action lawsuit. (12) Arizona, California, Colorado, Mississippi, New York State, and New York City (with a jail population larger than the prison systems of many states), among other jurisdictions, have all announced or been compelled to pursue reform of the use of solitary confinement. (13) International human rights instruments have been interpreted to condemn periods of extreme isolation longer than fifteen days. (14) And in President Barack Obama's final year in office, the federal government announced revisions to the use of solitary confinement in federal prisons after a Department of Justice review of the practice. (15)

Despite the increased awareness of the harms caused by solitary confinement, the practice presents something of a conundrum within the law. As opposed to criminal sentences or conditions of confinement, which have been subjected to increasing legislative and judicial oversight, (16) the use of solitary confinement has been left in the hands of line officers and their supervisors. Formal constitutional law has had little to say about the use of extreme isolation in our prisons and jails. A judge who reviews a complaint alleging that a person in prison was denied access to drinkable water for thirty days would have no difficulty concluding that it stated a constitutional claim, but that is not the case where the complaint alleges deprivation of human contact for thirty days. (17) The Eighth Amendment, which prohibits "cruel and unusual punishments," (18) has never imposed muscular limitations on the conditions or duration of solitary confinement, except for litigation involving particular populations, such as the mentally ill or juveniles. (19) Indeed, in the past two centuries the Supreme Court has only once addressed solitary confinement's relationship to the Eighth Amendment, and even then it spoke obscurely. (20) Instead, the Court has left a gap in any substantive limitation of how, why, and for how long extreme isolation can be used. The only constitutional regulation of solitary confinement is procedural in nature--the Court has insisted that when isolation reaches a sufficient duration and severity, some minimal procedures must be provided before prison officials place a person in extreme isolation. (21) If there are any true substantive limitations on the conditions presented by solitary or the length of time that a person may be placed in extreme isolation, they have not come from constitutional law.

Nor has statutory law provided any real governance. Most states abolished the use of solitary confinement as a form of criminal punishment long ago. (22) As Justice Kennedy noted in Davis, by 1890, the Supreme Court remarked that states abandoned their experimentation with solitary confinement because the results were uniformly terrible--prisoners suffered serious mental harm, driven to insanity and suicide, and those who survived the ordeal were not prepared to return to life on the street. (23) But although legislatures rejected the use of solitary confinement as a penal practice, prison administrators increasingly began using extreme isolation in the mid-1960s as they addressed a new scale of prison violence and overcrowding. (24) With the construction of modern facilities tailor-made for extreme isolation, an unheard of level of solitary confinement developed in this country, such that the Supreme Court in 2005 (in a unanimous opinion authored by Justice Kennedy) clinically (and without finding fault) described a facility in Ohio as depriving people in prison of "almost any environmental or sensory stimuli and of almost all human contact." (25) In the opaque world of prison discipline, no positive law regulates the use of solitary confinement. As prison administrators have moved from using solitary in a limited fashion--imposing fifteen to thirty days in isolation for only the most violent instances of misconduct in prison--to placing people in extreme isolation for years at a time for nonviolent infractions, the only limitation is the conscience of midlevel executive officials administering the discipline. It is thus news when a member of the "Angpla Three" is released after serving forty-five years in prison, almost all while in solitary confinement, (26) but no one looks askance at the constitutional regime that tolerated such a long period of confinement in extreme isolation.

This Article attempts to explain why the Constitution has failed to govern the use of solitary confinement in prisons and jails, and offers a way forward that might fill in the arguments for Justice Kennedy's intuition that the hands-off approach has held sway for too long. In so doing, I offer a critique of some of the larger failings of punishment jurisprudence, building on my own work and the work of others. (27) I also integrate recent punishment jurisprudence with new research to show how current Eighth Amendment principles speak to the use of extreme isolation. In so doing, I provide a novel framework for understanding the judicial role in regulation of the use of solitary confinement.

This Article breaks new scholarly ground, both doctrinally and theoretically. For although many scholars have written about solitary confinement doctrine, (28) none has combined a comprehensive jurisprudential and theoretical account for why judicial regulation of solitary confinement has been lacking with a well-developed analytical frame for altering past practice. Many scholars have limited their arguments to the use of solitary confinement for vulnerable populations, such as juveniles and inmates suffering from mental illness. (29) Others have focused more narrowly on international law (30) or evidence of the harms of solitary. (31) A few, like this Article, have linked critiques of solitary to Eighth Amendment proportionality jurisprudence, (32) but none has...