Federal Watchdog, SCOTUS Fail to Limit Solitary Confinement Abuses
by Douglas Ankney and Anthony W. Accurso
Prisoners have lost two chances to rein in abuses of solitary confinement in the past year, most recently with a toothless advisory from the Office of the Inspector General (OIG) for the U.S. Department of Justice (DOJ). That followed a refusal by the Supreme Court of the U.S. (SCOTUS) to consider one of the most egregious cases of alleged solitary abuse.
OIG issued a Management Advisory Memorandum (MAM) in February 2024 to the federal Bureau of Prisons (BOP), calling foul on the lack of standards for guards making rounds in Secure Housing Units (SHUs)—which is what BOP calls solitary confinement—after an investigation found that two BOP guards “allegedly failed to conduct mandatory SHU rounds during or around the time of an assault that resulted in an inmate’s death.” The agency was vague about which death spurred these “concerns.” But allegations of falsified SHU logs have been raised in multiple high-profile investigations, including one launched after the death of billionaire accused sex trafficker Jeffrey Epstein while awaiting trial at a BOP lockup in 2019.
BOP policy requires guards to conduct rounds every 30 minutes in SHU “on an irregular schedule and no more than 40 minutes apart.” But there is no standard log form nor any standards for retaining one—especially as evidence after a crime has occurred. BOP has also classified SHU logs as “temporary documents,” meaning logs are generally destroyed after six months, though some institutions use retention periods as short as 30 days.
In response to OIG’s concerns, the agency promised only to reconsider the log retention schedule and refused to create a standard form design. Maddeningly, that was enough for OIG to consider the issues “resolved.” See: OIG MAM 24-047 (Feb. 2024).
SCOTUS Also Provides Cover
for Solitary Abuses
Earlier, the nation’s highest court refused to take up the case of former Illinois prisoner Michael Johnson, who spent nearly three years in a windowless, perpetually lit cell the size of a parking space—complete with poor ventilation and noxious odors from walls caked with human feces—even though the state Department of Correction (DOC) classified him as “seriously mentally ill.”
When his mental illness unsurprisingly resulted in minor disciplinary infractions, Johnson was hit with “yard restrictions” that eventually eliminated his eight hours of weekly recreation time in an exercise cage. That left him permitted out of his cell for just 10 minutes once a week to shower. Johnson began hallucinating and cutting himself, covering himself in his own urine and feces, as he was denied any out-of-cell exercise before his transfer to a specialized mental health treatment unit.
Johnson sued pro se under 42 U.S.C. § 1983, but the federal court for the Central District of Illinois granted summary judgment to Defendant DOC officials, and the U.S. Court of Appeals for the Seventh Circuit affirmed, as PLN reported. [See: PLN, Nov. 29, 2022, online.] Johnson turned to SCOTUS, but the high Court refused to issue a writ of certiorari to hear the case on November 15, 2023—prompting a furious dissent from Justice Ketanji Brown Jackson. Joined by Justices Elena Kagen and Sonia Sotomayor, she called foul on the majority’s decision to let Illinois and DOC run roughshod over the Court’s precedent in Estelle v. Gamble, 429 U.S. 97 (1976), which bars prison officials from demonstrating “deliberate indifference to an inmate’s health or safety.”
Since an official who “knows of and disregards an excessive risk to inmate health or safety” is guilty of a civil rights infraction, per Farmer v. Brennan, 511 U.S. 825 (1994), Johnson argued that the Seventh Circuit erred in not applying the test laid out in Turner v. Safley, 482 U.S. 78 (1987), to see whether Johnson’s solitary confinement served a “legitimate penological purpose.” Instead, the Seventh Circuit noted—and the SCOTUS majority didn’t disagree—that his sanctions weren’t imposed for “some utterly trivial infraction” of prison disciplinary rules, another test laid out in Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001). But that misses the point, Jackson said; if the punishment is “cruel and unusual,” it cannot pass the threshold Turner test for serving a “legitimated penological purpose.” Accordingly, she would have granted certiorari and reversed the lower court decision. See: Johnson v. Prentice, 144 S.Ct. 11 (2023).
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