The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006

• Pages: 71-124
• Date: 10 February 2012
• DOI: https://doi.org/10.1108/S1059-4337(2012)0000057006
• Published date: 10 February 2012
• Author: Keramet Ann Reiter

THE MOST RESTRICTIVE

ALTERNATIVE: A LITIGATION

HISTORY OF SOLITARY

CONFINEMENT IN U.S. PRISONS,

1960–2006

Keramet Ann Reiter

ABSTRACT

Supermaxes across the United States detain thousands in long-term

solitary confinement, under conditions of extreme sensory deprivation.

Almost every state built a supermax between the late 1980s and the late

1990s. This chapter examines the role of federal prisoners’ rights

litigation in the 1960s and 1970s in shaping the prisons, especially

supermaxes, built in the 1980s and 1990s in the United States. This

chapter uses a systematic analysis of federal court case law, as well as

archival research and oral history interviews with key informants,

including lawyers, experts, and correctional administrators, to explore

the relationship between federal court litigation and prison building and

designing. This chapter argues that federal conditions of confinement

litigation in the 1960s and 1970s (1) had a direct role in shaping the

supermax institutions built in the subsequent decades and (2) contributed

to the resistance of these institutions to constitutional challenges. The

Studies in Law, Politics, and Society, Volume 57, 71–124

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All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000057006

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history of litigation around supermaxes is an important and as-yet-

unexplored aspect of the development of Eighth Amendment jurispru-

dence in the United States over the last half century.

INTRODUCTION

Solitary confinement is an age-old form of punishment in which a prisoner is

traditionally kept isolated, in a single, small cell, with limited access to

daylight, reading materials, or any form of activity. The practice usually

involves absolutely minimal human contact, with simple food delivered

through slats or holes in an iron or steel door. Early prisons in the United

States attempted to implement complete solitary confinement, as a means of

rehabilitating prisoners. Late eighteenth century reformers hoped solitary

confinement would give prisoners time to contemplate their sins, while

working at handicrafts, or reading the Bible, in silence. Relatively quickly,

however, wardens at one prison after another abandoned this practice; so

many prisoners in solitary confinement went insane, lost all ability to

function, or committed suicide that the practice became unsustainable.

Indeed, visitors to America, such as Charles Dickens (1842), Alexis de

Tocqueville, and Gustave de Beaumont (1979) commented in the mid-

nineteenth century on the disturbing severity of these solitary confinement

conditions; in 1890, the Supreme Court even recorded the indisputable

shortcomings and risks of the then – largely abandoned practice of keeping

prisoners in long-term solitary confinement (In Re Medley, p. 168).

But, in 1986, the correctional practice of keeping prisoners in long-term

solitary confinement was re-instituted, in Arizona. In 1986, the Security

Management Unit (SMU) opened in Florence, Arizona (Lynch, 2010). The

SMU represented the first modern ‘‘supermax’’ prison, explicitly designed,

through a combination of modern technological innovations, to maintain

prisoners in indefinitely long-term solitary confinement. In 1989, California

opened the second supermax, the Security Housing Unit (SHU) at Pelican

Bay State Prison in Crescent City, California. In 1994, the Federal Bureau

of Prisons opened its own supermax, the Administrative Maximum (ADX)

in Florence, Colorado. Within a decade, almost every state had its own

supermax (National Institute of Corrections, 1997).

The SMU, the SHU, ADX, and their progeny differ in a number of critical

ways from the original solitary confinement cells first built in the 1780s in

the United States. First, they are technologically advanced facilities, which

KERAMET ANN REITER72

actually completely remove the prisoner from any form of human contact.

Prisoners remain in supermax cells 23–24h a day, with little to no human

contact for weeks, months, or even years at a time. Correctional officers can

press a button in a central control booth, in order to open a cell door and

allow a prisoner out for a shower, or into a ‘‘dog run’’ for exercise.

Fluorescent lights remain on 24 h a day, and usually there are no windows

and no direct access to natural light. Televisions and reading materials are

often forbidden or strictly limited (Rhodes, 2004, p. 28;Shalev, 2009).

Second, these new facilities are not general population prisons to which a

judge or a jury sentences a prisoner; rather they house prisoners correctional

administrators determine to be the ‘‘worst of the worst’’ (Griffith, 1989). In

other words, correctional administrators assign prisoners to supermax

confinement through an internal administrative process. Usually, prisoners

are assigned to supermaxes because (1) they broke a prison rule or (2) they

were determined, through an administrative process, to be gang leaders too

dangerous to be housed with the rest of the general prison population.

However, prisoners might also be assigned to supermaxes because they

require ‘‘protective custody,’’ if their lives would be in danger in the

general prison population, or because they are severely mentally ill and

disruptive in the general prison population (Lovell, Cloyes, Allen, &

Rhodes, 2000). Supermaxes are usually free-standing facilities, where

prisoners are sent for more than a few months, as opposed to smaller

segregation units within individual prisons, where prisoners might be sent

for a period of a month, or two.

Finally, there is nothing redemptive or rehabilitative about supermaxes.

There is no pretense, as there was with the eighteenth century penitentiaries,

that solitary confinement will give prisoners time to think, repent, and

reform. Rather, prisoners are consigned to these facilities indefinitely, often

with the explicit understanding that nothing the prisoner does, or refrains

from doing, could possibly earn him his release (Austin v. Wilkinson, 2005,

p. 220). Moreover, great intellectuals like Dickens and Tocqueville are not

flocking to America to visit these supermaxes; in fact, the only people who

have visited them are lawyers and experts whom courts have ordered to be

admitted inside, after the extreme brutality of the conditions in the facilities

has been challenged through litigation.

This chapter will explore the role of the courts in this long American

history of punitive isolation, examining how courts have addressed

questions about the constitutionality of solitary confinement and isolation

in two main periods: (1) during the two decades before states started to build

supermaxes and (2) during the two decades just after Arizona and California

Litigation History of Solitary Confinement in U.S. Prisons 73