Copyright 2020 by Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor
Tarantola & Meredith Wheeler
Printed in U.S.A.
Vol. 115, No. 1

PUNISHMENT IN PRISON: CONSTITUTING THE
“NORMAL” AND THE “ATYPICAL” IN
SOLITARY AND OTHER FORMS OF
CONFINEMENT
Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura
Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola &
Meredith Wheeler
ABSTRACT—What aspects of human liberty does incarceration impinge? A
remarkable group of Black and white prisoners, most of whom had little
formal education and no resources, raised that question in the 1960s and
1970s. Incarcerated individuals asked judges for relief from corporal
punishment; radical food deprivations; strip cells; solitary confinement in
dark cells; prohibitions on bringing these claims to courts, on religious
observance, and on receiving reading materials; and from transfers to longterm isolation and to higher security levels.
Judges concluded that some facets of prison that were once ordinary
features of incarceration, such as racial segregation, rampant violence, and
filth, violated the Constitution. Today, even as implementation is erratic and
at times abysmal, correctional departments no longer claim they have
unfettered authority to do what they want inside prisons walls. And, even as
the courts have continued to tolerate the punishment of solitary confinement
in the last decade, a few lower courts have held unconstitutional the profound
sensory deprivations such isolation has entailed.
Prisoners have also sought procedural protections to constrain arbitrary
decision-making about placements in solitary confinement and transfers to
adverse settings. In response, the Supreme Court has required that, to state a
Fourteenth Amendment claim that their liberty had been infringed, prisoners
have to demonstrate that a specific practice imposed an “atypical” and
“significant hardship.”
What is typical in prisons? What are the sources of knowledge and the
baselines used by Justices to decide? How did isolation come to be seen as
an ordinary incident of prison life? We answer these questions through
analyzing debates in both the U.S. Supreme Court and lower courts about
what deprivations in prison are “normal.” After excavating the conflicts
within the Court about the kinds of liberty interests prisoners retained, we
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NORTHWESTERN UNIVERSITY LAW REVIEW

mined hundreds of lower court opinions to learn how judges determine when
constrictions on human movement meet the test of atypicality and hardship.
By documenting the high tolerance many federal judges have for periods of
isolation lasting months, years, and decades, we demonstrate the central role
judges play in constructing the “normal” of prisons.
AUTHORS—All rights reserved, August 2020. Thanks are due first to the
Northwestern University Law Review for creating this Symposium and
inviting us to join, to Emily McCormick and Annie Prossnitz for thoughtful
input on an earlier draft of this Essay, and to the current editors for their care
and efforts to bring this Essay to publication. Many people made this work
possible, including Yale law librarians Jason Eiseman, Michael
VanderHeijden, and Julian Aiken. We have been helped by several
colleagues, including Denny Curtis, Brett Dignam, Daniel Greenfield, Ali
Harrington, Jules Lobel, David Menschel, Alex Reinert, Keramet Reiter,
Ryan Sakoda, David Shapiro, Margo Schlanger, Anna VanCleave, and
Molly Shapiro. We are all in debt to Elizabeth Keane for support of the
Liman Center and to Bonnie Posick who connects us all and provides expert
editorial advice. Judith Resnik’s work on this project was supported by her
Andrew Carnegie Fellowship. The analyses and views are hers, and not to
be attributed to Carnegie or to her other institutional affiliations or those of
her coauthors.

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115:45 (2020)
I.
II.

Punishment in Prison

LOSING LIBERTY .................................................................................................... 47
PRISON, SQUALOR, AND THE FEDERAL COURTS ...................................................... 53
A.

Shaping a Jurisprudence of Constitutional Punishment’s Boundaries ......... 53

B.

In-Prison Punishment ................................................................................... 55

C.

Race, Poverty, and Constitutional Authority over Criminal Law
Enforcement .................................................................................................. 57

D.

Prisoners Protesting Strip Cells and Slime................................................... 59

E.

Scaling Up: Prison Systems’ Unconstitutional Conditions ........................... 68
1. Expanding the Capacity for and the Reliance on Isolation ................... 75
2. Experiencing Isolation .......................................................................... 85

III. THE LAW OF SOLITARY CONFINEMENT: EIGHTH AMENDMENT PROHIBITIONS
AND FOURTEENTH AMENDMENT BUFFERS AGAINST ARBITRARY PLACEMENTS ...... 92
A. On the Merits Impermissible, or Not ............................................................ 93
1. Prohibitions Collapse: Condoning Solitary Confinement in the 1970s
and 1980s .............................................................................................. 93
2. Ruling Out “Ruin”: Questioning Solitary Confinement in the 1990s
and Thereafter .................................................................................. 97
3. Outlawing (Again) Some Forms of Solitary Confinement ................... 101
B.

Line-Drawing: The Quest to Distinguish Among In-Prison
Punishments ................................................................................................ 108
1. Liberty’s Sources and Life in Incarceration ....................................... 108
a.

In or out of prison ....................................................................... 112

b.

The adverse impacts of transfers................................................. 120

c.
2.
3.

Segregation through administrative placements, discipline,
and exile .............................................................................. 128
Baselines, Significance, and Typicality ............................................... 134
Mining Hundreds of Solitary Confinement Rulings ............................ 136

IV. CONSTRUCTING THE “NORMAL” OF PRISONS ........................................................ 154

I.

LOSING LIBERTY

Incarceration limits individuals’ liberty. How much individual liberty
dims with incarceration has been the subject of debate for the last sixty years.
The issue emerged in courts when prisoners sought to and succeeded in
circumscribing what had been the unfettered discretion of prison officials,
who had unilaterally controlled all aspects of their lives.
Once prisoners convinced judges that the U.S. Constitution did not stop
at the prison gate,1 they raised a host of questions. If being sent to prison is
1
Justice Thurgood Marshall’s phrase was that “a prisoner does not shed his basic constitutional rights
at the prison gate.” Wolff v. McDonnell, 418 U.S. 539, 580–81 (1974) (Marshall, J., concurring in part
and dissenting in part), discussed infra notes 314–358 and accompanying text.

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NORTHWESTERN UNIVERSITY LAW REVIEW

the punishment, who decides what happens to people once inside? Are there
conditions and forms of in-prison punishment that are unconstitutional? How
relevant (if at all) are the intentions of officials to punish prisoners? Does the
frequency of a challenged practice, be it commonplace or unusual, have a
bearing on its legality? And, if making comparative judgments between free
people and among people differently incarcerated, how are the referents and
baselines chosen?
To explicate the boundaries of licit punishment, Justices had to develop
the contours of the constitutional rights allegedly infringed, as they wrote
about liberty, property, religious freedom, speech, and equality. Justices
addressed the sources of constitutional protections and whether the fact of
incarceration altered the contours of rights of prisoners. Members of the
Court debated whether such rights were inalienable and predated the
Constitution, were protected by it, or depended on enactments in federal and
state law. Those analyses in turn were framed by judicial concern about how
much deference to accord to state and federal actors and about the numbers
of claims that could be filed, given the myriad of practices in prison and the
large population of people subjected to control.
In this Essay, written for a symposium on solitary confinement, we
explore the stakes—for the incarcerated, for courts, and for the body
politic—of judicial engagement with in-prison punishments. We show how,
over the course of sixty years, courts came to reject the filth, squalor,
violence, and racial discrimination that were once commonplace in prisons,
and yet developed and applied the idea that some radical deprivations—
solitary confinement included—were so “normal” in prisons as not to be
subject to much judicial oversight.
In Part II, we begin where prison law did, in the 1960s and 1970s when
federal judges moved away from complete deference to prison officials (a
“hands off” approach) and began to assess the constitutionality of in-prison
treatment. The civil rights movement of the 1960s produced pressures for
law (at national and local levels and in legislatures and courts) to recognize
that governments disproportionately policed, incarcerated, and oppressed
poor people and especially those of color.
Litigation in the 1960s and 1970s from across the country details the
horrific treatment that had once been “ordinary in prison.”2 We place that
2
Using Westlaw, we entered the following search string: “prison! OR inmate OR incarcerat! OR
imprison! OR confinement OR custody.” We limited the search to decisions from 1960 to 1970, and
included each federal circuit, so as to identify decisions from around the country. In order to select cases
that addressed violations of prisoner rights, we narrowed the search based on three key numbers: Prisons,
Constitutional Law, and Civil Rights. Under these parameters, we found 2,381 reported cases that we
culled by a variety of means to focus on in-prison conditions.

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phrase in quotes to underscore that the constitutive elements of prison are the
result of decisions, rather than of a preexisting, natural kind. We also
document how prisoners pressed courts and how judges contributed to denormalizing many practices that once were common. Relying on various
parts of the Constitution, prisoners succeeded in taking some sanctions out
of officials’ repertoire and in gaining authority at times to defend against
claims that their behavior warranted additional in-prison punishment. For
example, predicated on the Eighth Amendment, lower courts banned
whippings and putting people into dungeons.3 Relying on the Fourteenth
Amendment, the U.S. Supreme Court concluded that prison officials could
not take away earned “good-time credits” and prolong the time spent
incarcerated without providing prisoners with opportunities to contest
charges.4
Examining the first two decades of prison law clarifies the relationship
between solitary confinement cases and system-wide conditions challenges.
We trace how individual decisions finding unconstitutional the degrading
treatment accorded to people in solitary confinement (some of whom were
held in single dark cells and others in groups crammed for days into small,
filthy cells) came to be seen as unconstitutional for incarcerated people in
general population. Even as many prisons remain miserable and frightening
today, as mandates for safety and health are far from implemented,5 and as
solitary confinement is commonplace, conditions in many facilities
improved somewhat.
That “somewhat” is a critical caveat also addressed in Part III, which
analyzes the limits of the initial victories. This account of decades of prison
litigation makes plain that whether taking a self-described deferential or an
engaged role, courts are always central in structuring the conditions under
which incarcerated individuals live.
By the late 1970s and into the 1980s, appellate courts reversed lower
courts that sought not only to stop the filth, violence, and lack of sanitation,
health care, and adequate food, but also the treatment of people as objects to
be “warehoused,” rather than as individuals in need of human interaction,
3
See Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968). Then-Judge Harry Blackmun wrote the
opinion for the Eighth Circuit. Id. at 572.
4
Wolff, 418 U.S. at 555–58, discussed infra notes 315–358 and accompanying text.
5
See, e.g., Complaint, Lang v. Taylor, No. 4:20-cv-00030 (N.D. Miss. Feb. 25, 2020); Shaila Dewan,
Inside America’s Black Box: A Rare Look at the Violence of Incarceration, N.Y. TIMES (Mar. 30, 2019),
https://www.nytimes.com/2019/03/30/us/inside-americas-black-box.html
[https://perma.cc/TL5MUNW7]; Rick Rojas, More Slayings at Parchman as Mississippi Confronts Prison Crisis, N.Y. TIMES
(Jan. 21, 2020), https://www.nytimes.com/2020/01/21/us/parchman-mississippi-prison-deaths.html
[https://perma.cc/T2TD-AK6Z].

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NORTHWESTERN UNIVERSITY LAW REVIEW

stimulation, varied activities, and autonomy.6 Cutbacks came through a
variety of doctrines, and we focus on two that are central to the expansive
use of solitary confinement.
In 1981, the Court concluded that double-celling was not a punishment
that the Constitution prohibited.7 By licensing intense social density and the
lack of personal privacy entailed in cramming more people into cells
designed for one,8 the Court constitutionalized overcrowding.9
Normalization of that practice means that, rather than governments paying
the cost of unbridled policing and prosecution policies, people in detention
suffer from hyper-density and a lack of services. The tragic consequences
have become all the more vivid in the wake of COVID-19, which emerged
as we wrote. Overcrowded facilities came to be used as a justification for
reliance on solitary confinement, which a 2005 Supreme Court decision
tolerated as a permissible response, as it characterized prisons as fearsome
places in which gangs imperiled security.10 As of 2020, solitary confinement
remains a feature of almost all prison systems in the United States.
In Part III, we turn to empirical work on the aspect of incarcerated
people’s lives—solitary confinement—that is at the center of this
Symposium. We summarize the data on the numbers of people held in
isolation. Since 2013, national surveys have analyzed the policies governing
solitary confinement and the numbers held in isolation.11 Thus, we know that,
6

See, e.g., Laaman v. Helgemoe, 437 F. Supp. 269, 306, 325–31 (D.N.H. 1977). The court
underscored the harms of warehousing, even if adequate on some dimensions, and ruled the conditions
of confinement unconstitutional. Id. at 307, 315–31.
7
Rhodes v. Chapman, 452 U.S. 337 (1981).
8
Id. at 349–50.
9
Some overcrowding remained actionable. See Brown v. Plata, 563 U.S. 493, 545 (2011).
10
Justice Anthony Kennedy, writing for a unanimous Court, invoked the “brutal reality of prison
gangs, . . . [c]landestine, organized, fueled by race-based hostility, and committed to fear and violence.”
Wilkinson v. Austin, 545 U.S. 209, 227 (2005), discussed infra notes 56, 230, 472, 528 and accompanying
text.
11
See ASS’N OF STATE CORR. ADM’RS & THE ARTHUR LIMAN CTR. FOR PUB. INTEREST LAW AT
YALE LAW SCH., REFORMING RESTRICTIVE HOUSING: THE 2018 ASCA-LIMAN NATIONWIDE SURVEY
OF TIME-IN-CELL 4
(2018), https://law.yale.edu/sites/default/files/area/center/liman/document/
asca_liman_2018_restrictive_housing_released_oct_2018.pdf
[https://perma.cc/W6SG-ZD7B]
[hereinafter ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING] (authors include Judith Resnik,
Anna VanCleave, Kristen Bell, Alexandra Harrington, Greg Conyers, Catherine McCarthy, Jenny Tumas,
and Annie Wang). This report was one of a series of research projects coauthored by the Association of
State Correctional Administrators (ASCA) and The Arthur Liman Center for Public Interest Law at Yale
Law School and has created a longitudinal, nationwide database. For other reports, see ASS’N OF STATE
CORR. ADM’RS & THE ARTHUR LIMAN PUB. INTEREST PROGRAM AT YALE LAW SCH., AIMING TO
REDUCE TIME-IN-CELL: REPORTS FROM CORRECTIONAL SYSTEMS ON THE NUMBERS OF PRISONERS IN
RESTRICTED HOUSING AND ON THE POTENTIAL OF POLICY CHANGES TO BRING ABOUT
REFORMS (2016), https://law.yale.edu/sites/default/files/area/center/liman/document/aimingtoreducetic.

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as of the fall of 2017, more than 61,000 people were held in solitary
confinement, defined as spending an average of twenty-two hours per day or
more in isolation cells for fifteen days or more;12 some 3,700 had been in
such settings for three years or more.13 In this Part, we also sketch accounts
from some of the people who have lived in solitary confinement14 and from
social and health scientists aggregating data to evaluate the impact.
Part IV probes the doctrine governing the rights of the people placed in
solitary confinement, and that law is embedded in a larger set of cases
governing in-prison discipline, transfers, and administration. A small
number of opinions directly evaluate solitary confinement under the Eighth
Amendment. Many more decisions address the question of whether prisoners
are entitled to processes to protect them from arbitrary placement in solitary
confinement. In this Part, we excavate debates within the Court about
prisoners’ liberty and then provide the analysis of their application in the
lower courts. We undertook an ambitious project to mine the case law
spawned by the directive that lower courts assess when prisons impose an
“atypical and significant hardship.” We identified more than 9,000 decisions,
both reported and unreported, that were issued between 1995 and 2019, in
which that phrase appeared with “solitary confinement” and variations such
as “special housing unit.”15 We culled that set to analyze across the circuits
the governing doctrine and application.
pdf [https://perma.cc/GH6E-KQEV] [hereinafter ASCA/LIMAN 2016 AIMING TO REDUCE TIME-INCELL]; ASS’N OF STATE CORR. ADM’RS & THE ARTHUR LIMAN PUB. INTEREST PROGRAM AT YALE LAW
SCH., RETHINKING “DEATH ROW”: VARIATIONS IN THE HOUSING OF INDIVIDUALS SENTENCED TO
DEATH (2016), https://law.yale.edu/sites/default/files/documents/pdf/Liman/deathrow_reportfinal.pdf
[https://perma.cc/MA7E-QLBD] [hereinafter ASCA/LIMAN 2016 RETHINKING “DEATH ROW”];
ASS’N OF STATE CORR. ADM’RS & THE ARTHUR LIMAN PUB. INTEREST PROGRAM AT YALE LAW SCH.,
TIME-IN-CELL: THE ASCA-LIMAN 2014 NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION IN
PRISON
(2015),
https://law.yale.edu/sites/default/files/area/center/liman/document/time-incell_combined_-web_august_2015.pdf [https://perma.cc/GM4V-3RYE] [hereinafter ASCA/LIMAN 2014
NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION] (authors include Sarah Baumgartel, Corey
Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter, Judith Resnik, Camille Camp, and George
Camp).
12
ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, at 10.
13
Id. at 14.
14
See generally ALBERT WOODFOX WITH LESLIE GEORGE, SOLITARY (2019); Reginald Dwayne
Betts, Only Once I Thought About Suicide, 125 YALE L.J.F. 222 (2016).
15
Using Westlaw, we entered the following search string: adv: (atypical! /s significant!) AND
(“solitary confinement” OR “segregated confinement” OR “adseg” OR “keeplock” OR “special housing
unit” OR “SHU” OR “restrictive housing” OR “administrative segregation” OR “protective”). We limited
the search to decisions from January 1, 1995 through September 1, 2019. This search produced 9,350
decisions. Of these, 8,571 were district court decisions (414 reported, 8,157 unreported). Circuit court
decisions accounted for 779 (207 reported, 572 unreported). We then did a purposeful sampling to find
governing circuit law. A repeated search by the Northwestern University Law Review in 2020 found

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A preview of our findings is in order. First, these decisions reflect how
much federal judges have taken for granted profound human isolation as
“incident” to “normal” confinement and how little they have seen themselves
obliged to intervene.16 Second, this raft of cases demonstrates the variation
about what has been held to be “atypical” in different circuits, on different
panels, and at different times. While a few opinions consider isolation for
101 days or 305 days as markers of constitutional deprivations, many rulings
have concluded that four, or eight, or ten, or more than twenty years do not
constitute a liberty problem.17
Third, as for selections of baselines for comparative assessments of
impact of solitary confinement, no decisions looked to how people outside
prison move about in their daily lives or use their bodies. These rulings also
do not rely on professional standards or statutes that regulate either the
amount of space that people need or the use of solitary confinement.
Moreover, unlike the decisions under the Eighth Amendment, most
procedural due process opinions do not discuss the studies of the harms of
solitary confinement. Rather, some decisions used the treatment of people in
general population (often without details of the governing rules) as a
baseline, while others focused on the control exerted in high-security
facilities or over people held in solitary confinement. Fourth, judges
generally credited prison defendants’ views of the challenged practices or
offered their own opinions about what was “normally incident” to life in
prison. Fifth, factors differently weighted include in-cell conditions
(including infestation by “vermin” and reductions in food)18 and the impact
slightly different numbers, with 9,275 total cases, of which 8,513 were district court decisions (396
reported, 8,117 not reported) and 760 circuit court decisions, of which 199 were reported and 561 not. As
we discuss infra note 480, not all cases make it into the group that are reported or unreported. We provided
the numbers (and their variation when the search was run months later) to underscore the hundreds of
times judges are asked to consider isolation as a punishment and how they have responded.
16
Work focused on solitary confinement in particular prison systems includes MICHELLE SHAMES
& PHILIP DESGRANGES, N.Y. CIVIL LIBERTIES UNION, TRAPPED INSIDE: THE PAST, PRESENT, AND
FUTURE
OF
SOLITARY
CONFINEMENT
IN
NEW
YORK
(2019),
https://www.nyclu.org/en/publications/trapped-inside-past-present-and-future-solitary-confinementnew-york [https://perma.cc/F9E5-EPUY], and ACLU OF TEX., A SOLITARY FAILURE: THE WASTE, COST,
AND HARM OF SOLITARY CONFINEMENT IN TEXAS (2015), https://www.aclutx.org/en/report/a-solitaryfailure [https://perma.cc/5W2K-7EFG]. Efforts to generate reforms are documented in ALISON SHAMES,
JESSA WILCOX & RAM SUBRAMANIAN, VERA INST. OF JUSTICE, SOLITARY CONFINEMENT: COMMON
MISCONCEPTIONS
AND
EMERGING
SAFE
ALTERNATIVES
(2015),
https://www.vera.org/downloads/publications/solitary-confinement-misconceptions-safe-alternativesreport_1.pdf [https://perma.cc/32SU-5UVL]. For more reports on future directions of prison reform, see
ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, and RUTH DELANEY, RAM
SUBRAMANIAN, ALISON SHAMES & NICHOLAS TURNER, VERA INST. OF JUSTICE, REIMAGINING PRISON
(2018), https://www.vera.org/reimagining-prison-web-report [https://perma.cc/4SXZ-PG4W].
17
Discussion of all of the cases can be found infra Section III.B.3.
18
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997).

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of solitary confinement on the prospect of future release. Sixth, many
opinions did not parse whether an “atypical and significant hardship”
entailed two independent and necessary assessments or whether one factor—
such as the length of time spent or gross conditions—could suffice to meet
both prongs.
Part IV pulls together our analyses of six decades of litigation on prison
conditions, of solitary confinement data, and of case law to underscore that
judges—and the law they make—are always present in prisons. Judges have
helped to turn the lack of sanitation, health care, and safety into
unconstitutionality, although such conditions persist in many systems. And,
even as the Court’s doctrine sought to circumscribe judges’ involvement
through according a good deal of deference to prison officials, these
constitutional adjudications serve as guidelines for the system of criminal
law enforcement. If double-celling is licit, then prosecutors have license to
seek to send more people to confinement. If hearings are required before
decisions, then prison officials have to try to provide them.
In short, the Supreme Court’s effort to limit judicial involvement by
framing tests of deference does not extricate constitutional law from prisons,
but instantiates its relevance. What courts condone or decry are central parts
of the engine making practices “normal” or “atypical” in prisons today.
II. PRISON, SQUALOR, AND THE FEDERAL COURTS
A. Shaping a Jurisprudence of Constitutional Punishment’s Boundaries
In the second half of the twentieth century, when courts began to
address prisoners’ claims of unconstitutional treatment, they were also
considering challenges to sentences imposed by legislatures, such as the
death penalty, mandatory minimum sentences, and the conversion of unpaid
fines into jail time. Although the law of sentencing is often addressed as a
category discrete from the law of prisoners’ rights, both kinds of claims
require courts to consider the same question: what constrains the sovereign
power to punish? In response, courts generated legal theories on the
boundaries of licit punishment that entailed assessments of the forms of
imposition on liberty that conviction licensed.
Of course, judges are never solo actors. Litigation about the death
penalty and prisoners’ rights was part of the civil rights movement, which
propelled a reconceptualization of the relationship between the federal
government (courts included) and many state institutions. In the 1950s and
1960s, as sentenced and convicted people were pressing judges to respond
to particular instantiations of punishment, legislatures and the Executive
Branch were calling for the reconstruction of policies and practices to
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interrupt racial discrimination and multiple forms of subordination. Federal
funding flowed to law enforcement, including for initiatives for correctional
officials to improve their facilities and training.19
Further, because one vector for reform was courts, Congress helped
provide some of the means to use them. In 1976, Congress authorized
successful plaintiffs in civil rights cases to be paid attorneys’ fees by losing
defendants, such as prison systems.20 In 1980, Congress enacted the Civil
Rights of Institutionalized Persons Act (CRIPA), which authorized the U.S.
Department of Justice to investigate conditions in state institutions housing
juveniles, individuals with mental and physical disabilities, detainees, and
prisoners.21
Judges in turn grappled with the problems prisoners presented by
drawing on reform projects (such as standard setting) of professional
organizations of lawyers and of correctional experts. The common law and
constitutional traditions of analysis prompted judges to search for metrics by
which to assess punishment practices, both in and out of prison. In rulings
on the death penalty, on the conversion of fines into prison time, on
mandatory minimum sentences, and on conditions in prisons, courts weighed
the justifications for a particular punishment or administrative action against
their evaluation of the harms entailed.
Borrowing from the social sciences of penology and criminology,
Justices sought to identify the “penological purposes” that legitimated
particular sanctions. Justices invoked ideas of deterrence, incapacitation,
retribution, and rehabilitation as well as administrative convenience,
community and institutional safety, and expense.22 Many Justices described
themselves as taking these concerns into account as they assessed whether a
particular sanction was excessively severe or disproportionate, entailed the
unnecessary infliction of pain, failed to reflect the decency of the social

19
The Law Enforcement Assistance Administration (LEAA) was established in 1968. See Omnibus
Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified at 34 U.S.C.
§§ 10101–60501 (2012)). The agency was abolished in 1982. Records of the Law Enforcement Assistance
Administration
[LEAA],
NAT’L
ARCHIVES,
https://www.archives.gov/research/guide-fedrecords/groups/423.html [https://perma.cc/7EH9-3AZT].
20
Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (codified as
amended at 42 U.S.C. § 1988 (2012)). The first Supreme Court interpretation of that Act came in 1978 in
Hutto v. Finney, related to the class action Arkansas prison-reform litigation. See infra notes 88–89 and
corresponding text.
21
Civil Rights of Institutionalized Persons Act of 1980, Pub. L. No. 96-247, 94 Stat. 349 (codified
as amended in scattered sections of 42 U.S.C. (2012)).
22
The history of that approach and its limits are discussed in Judith Resnik, (Un)Constitutional
Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 YALE L.J.F.
365 (2020) [hereinafter Resnik, (Un)Constitutional Punishments].

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order, or undermined values such as equality, liberty, religious freedom, and
dignity.
In their discussions, judges paid little attention to the distinctions that
occupied punishment theorists who explained the tensions among
punishment’s different aims and impacts. Judges did not often delineate
among purposes, principles, and constraints; tease out means from ends; or
require empirical bases to make causal claims. Rather, in both the
constitutional decisions on sentencing and on in-prison punishments, courts
proffered a laundry list of what they deemed to be legitimate state goals and,
in general, permitted both legislative and executive punishment structures to
stand.
B. In-Prison Punishment
In the United States, legislators have routinely endowed judges with
authority to impose sentences, as well as leeway in determining whether to
send people to prison and, if so, for how long. Furthermore, prison
administrators have been given a great deal of discretion. While some state
statutes had included directions, such as requiring “hard labor,” spending
time in solitary confinement, and limiting food to bread and water,23 many
of those statutes are no longer on the books. On occasion, judges who impose
sentences call for specific assistance (such as drug treatment), but generally
they do not specify what form confinement should take. Thus, most of the

23
Some state statutes impose solitary confinement as a part of a prison sentence. A few statutes do
so only for people sentenced for capital crimes. See, e.g., IDAHO CODE ANN. § 19-2705 (West
2020) (“Whenever a person is under death warrant, . . . the warden of the prison in which the person is
incarcerated shall keep the condemned person in solitary confinement until execution.”); S.D. C ODIFIED
LAWS § 23A-27A-31.1 (2020). Other statutes apply to persons sentenced for a range of offenses. See,
e.g., DEL. CODE ANN. tit. 11, § 3902 (West 2020) (“In every case of sentence to imprisonment for a term
exceeding 3 months, the court may by the sentence direct that a certain portion of the term of
imprisonment, not exceeding 3 months, shall be in solitary confinement; and any person so sentenced
shall not be allowed to work during that portion of the term of imprisonment.”); WASH. REV. CODE
ANN. § 10.64.060 (West 2020) (“In every case where imprisonment in the penitentiary is awarded against
any convict . . . he or she may also be sentenced to solitary imprisonment for such term as the court shall
direct, not exceeding twenty days at any one time; and in the execution of such punishment the solitary
shall precede the punishment by hard labor, unless the court shall otherwise order.”). A few states
had statutes that authorized courts to impose a restricted bread and water diet along with a prison
sentence. For example, a Minnesota statute from the first part of the twentieth century authorized a city
court to sentence a person guilty of violating a city ordinance, bylaw, or regulation with
“imprisonment . . . not exceeding thirty days . . . [and a diet of] bread and water.” M ASON’S MINN.
STAT. c. 9, ch. IV, § 32 (1927). Other “bread and water” statutes included NEB. REV. STAT. § 28-715
(1929); OHIO REV. CODE ANN. § 13415 (1926); PA. CONS. STAT. § 20253 (1920); S.D. CODIFIED
LAWS § 3-673 (1910); WIS. STAT. § 53.10 (1945).

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decision-making about the contours of confinement come from the people
who run prisons.
Those people have created hyper-regulated environments. A wide array
of behavior can trigger a host of sanctions. Some prison rules address
conduct (such as assaults and thefts) that would be the basis for criminal
charges against perpetrators, whether incarcerated or not. Atop that internal
criminal code, prison authorities then add hundreds of other regulations,
some codified and others imposed by staff members.
Animated by concerns about safety, exploitation, and control, in-prison
rules address clothing, hair, possessions, movement, sex, speech, and
activities.24 Many edicts are stated at a level of generality that would, if in a
criminal code, be unenforceable as unconstitutionally vague, overbroad, or
impermissibly intrusive on human autonomy. For example, in 1972,
Nebraska’s rules ranged from prohibiting “escape” and “mutiny, riot, or
insurrection” to banning “[p]ossession of any negotiable item, such as
stamps or mon[ey],” or referring to other incarcerated individuals “either in
writing or orally, by any other than his correct name, or commonly used
name in good taste,” and failing to address “officers and staff” by their
“titles.”25
In addition, prison systems give staff authority to punish “conduct
which disrupts or interferes with the security or orderly running of the
institution.”26 Further, officials generally have power over the assignment of
individuals to different levels of security and kinds of facilities. When
classifying and ordering transfers, prison officials sometimes denote their
acts as administrative and other times as disciplinary, and always as
responsive to the demands of managing a complex group of people.

24
See, e.g., CAL. CODE REGS. tit. 15, § 3062(a) (2013) (“[a]n inmate’s hair and facial hair shall be . . .
neatly styled[] and groomed . . .”); OR. ADMIN. R. 291-105-0015(4)(r)(B) (2020) (prohibiting
participation in a petition drive without authorization); N.D. DEP’T OF CORR. & REHAB., FACILITY
HANDBOOK 35 (2018) (prohibiting three-way calls, conference calls, and 1-800 calls); N.Y. DEP’T OF
CORR. & CMTY. SUPERVISION, HANDBOOK FOR THE FAMILIES AND FRIENDS OF NEW YORK STATE
DOCCS INMATES 8 (2019) (prohibiting incarcerated people from receiving more than two “food
packages” a month in the mail).
25
McDonnell v. Wolff, 342 F. Supp. 616, 644–645 (D. Neb. 1972), aff’d in part, rev’d in part, 483
F.2d 1059 (8th Cir. 1973), aff’d in part, rev’d in part sub nom. Wolff v. McDonnell, 418 U.S. 539 (1974).
As discussed infra notes 316–317, the district court ordered restoration of good time for people who had
lost it for reasons such as “cussing a guard.” Id.
26
This phrasing comes from the Federal Bureau of Prison’s rules, in effect in 1975 and appended to
the amicus brief of Solicitor General Bork. Brief for the United States as Amicus Curiae at 27, Baxter v.
Palmigiano, 425 U.S. 308 (1976) (Nos. 74-1187 & 74-1194), 1975 WL 173645, at *55 [hereinafter Brief
for the United States as Amicus Curiae, Baxter v. Palmigiano]. As of 2020, conduct that “disrupts or
interferes with the security or orderly running of the institution” remained prohibited. See 28 C.F.R.
§ 541.3.

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What are the boundaries on these broad powers? If the model of
government sanctions comes from its treatment of people outside prison,
then the Constitution’s protections against “cruel and unusual punishments”
and its safeguards of liberty under the Fifth, Sixth, and Fourteenth
Amendments apply. Individuals would be entitled to familiar procedural
rights including notice, an opportunity to contest and present evidence,
insulation from self-incrimination, at times lawyers, and decisions by people
understood as able to be impartial. Other constitutional guarantees of free
expression, religious opportunities, and equal protection also could come
into focus. In short, once courts recognized that the Constitution applied
somehow to prisons, judges had to decide whether any in-prison
punishments violated the Eighth Amendment and the relevance of other
facets of the Constitution.
C. Race, Poverty, and Constitutional Authority over Criminal
Law Enforcement
The impetus for constitutional engagement with prisons came from
convicted individuals and from prisoners who, despite hundreds of rebuffs,
persisted over decades in arguing that law protected them. A series of
Supreme Court decisions, beginning in 1958, paved the way for lower
federal courts to hear prisoners’ claims. The key legal predicates were shifts
in the interpretation of the Eighth Amendment and about federal judicial
authority for claims alleging that state actors had violated individuals’ civil
rights.
The Supreme Court’s reading of the Eighth Amendment came through
two rulings, one addressing an individual prosecuted in the federal system
and a second brought by a person convicted in the state system. In 1958 in
Trop v. Dulles, the Court held unconstitutional a federal statute that imposed
the punishment of denationalization.27 Chief Justice Earl Warren’s plurality
opinion explained that the Eighth Amendment “must draw its meaning from
evolving standards of decency that mark the progress of a maturing
society.”28 In 1962, the Court held in Robinson v. California that the Eighth
Amendment’s prohibition on cruel and unusual punishments applied to the
states and ruled unconstitutional a California statute criminalizing the status
of addiction.29
These substantive Eighth Amendment rulings interacted with the
Court’s recognition that prisoners—like other civil rights claimants—have
27

356 U.S. 86, 101–03 (1958).
Id. at 101.
29
370 U.S. 660, 667 (1962). For further discussion of incorporation of the Eighth Amendment, see
Resnik, (Un)Constitutional Punishments, supra note 22, at 370–71.
28

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rights of access to the federal courts. In 1961, Monroe v. Pape held that
individuals could invoke 42 U.S.C. § 1983, enacted in the nineteenth century
in the aftermath of the Civil War, to seek federal court relief when alleging
that state officials acted under “color of state law” and violated their civil
rights. The Court concluded that individuals could pursue such claims
whether or not those actions were authorized by state law and whether or not
state courts had reviewed the challenged conduct.30 In Cooper v. Pate,
decided in 1964, the Court applied the precept of Monroe to Illinois prison
officials alleged to have prevented Thomas Cooper from purchasing
“religious publications . . . disseminated by the Black Muslim Movement.”31
Prisoners could come to federal court when prison staff, acting “under color
of state law,” had violated their constitutional rights.
As Thomas Cooper’s claim reflected, in-prison racial discrimination
framed the Warren Court’s initial encounters with prisoners’ rights.32 Race
was at the core of Washington v. Lee, the first prisoner class action to reach
the Supreme Court. Alabama had long had statutes that made it illegal for
“white and colored convicts to be chained together or to be allowed to sleep
together.”33 In 1966, a group of “one white and five Negro citizens,”34 on
behalf of all Alabama prisoners, challenged their segregation.35 The
Honorable Frank Johnson, writing for a three-judge court, held that the
30

Monroe v. Pape, 365 U.S. 167, 184–87 (1961).
See 324 F.2d 165, 166 (7th Cir. 1963). Cooper argued that while other prisoners could “obtain the
King James and Revised versions of the Bible,” he was not able to have a copy of the Quran. Id. at 166.
The district court dismissed the case, and Cooper proceeded without counsel on appeal. Id. at 165–66.
The record included the statement of the warden, Joseph F. Ragen, that Cooper was “always surrounded
by . . . [a] hundred to 150 inmates, (mostly colored and Mexican),” and the warden worried about losing
control of the prison. Id. The Seventh Circuit concluded that Illinois could “suppress movements that
would otherwise be constitutionally protected” if violence was a “reasonably likely consequence.” Id. at
166–67. In a per curiam decision, the U.S. Supreme Court ruled that “the complaint stated a cause of
action and it was error to dismiss it.” Cooper v. Pate, 378 U.S. 546, 546 (1964). The Court cited cases
from the Second and Fourth Circuits that had recognized religious rights of Muslims. See, e.g., Pierce v.
LaVallee, 293 F.2d 233, 236 (2d Cir. 1961); Sewell v. Pegelow, 291 F.2d 196, 197–98 (4th Cir. 1961).
32
Prisoners asserted the mix of race and religious discrimination in Cooper, and the Court used the
template of race discrimination in Cruz v. Beto, 405 U.S. 319 (1972), in responding to an allegation that
Cruz was subject to discrimination on the basis of his Buddhist religion. The interaction between racial
and religious discrimination is vivid in a variety of prison and other cases.
33
ALA. CODE tit. 45, § 52 (1958) (repealed 1975); see Washington v. Lee, 263 F. Supp. 327, 331 n.4
(M.D. Ala. 1966).
34
The group was composed of Caliph Washington, Hosea L. Williams, Julia Allen (for her minor
incarcerated son, Willie), Agnes Beavers (for her minor son, Cecil McCargo), Johnnie Coleman, and
Thomas E. Houck, who described themselves as such and who were represented by the ACLU and
NAACP Legal Defense Fund. See Washington, 263 F. Supp. at 327–28.
35
Washington, 263 F. Supp. 327; Complaint, Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966)
(No. 2350-N).
31

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discrimination violated the Fourteenth Amendment and ordered
desegregation.36 In 1968, the Supreme Court affirmed in a brief per curiam
opinion.37
D. Prisoners Protesting Strip Cells and Slime
The Supreme Court’s decisions prompted some lower court judges to
entertain prisoners’ civil rights claims, and several rulings found practices
unconstitutional.38 Yet doing so entailed rejecting arguments by states that
36
Washington, 263 F. Supp. at 333. The court required the Commissioner to take “necessary and
appropriate steps to effect complete desegregation” within six months of the “honor farms,” youth centers,
and prison hospitals, and provided more time for desegregation of higher security facilities. The caveat
was that in “some isolated instances,” prison security and discipline could require “segregation of the
races for a limited period.” Id. at 331–33. See generally Judith Resnik, The Puzzles of Prisoners and
Rights: An Essay in Honor of Frank Johnson, 71 ALA. L. REV. 665 (2020) [hereinafter Resnik, Puzzles
of Prisoners and Rights]; Michael B. Mushlin & Naomi Roslyn Galtz, Getting Real About Race and
Prisoner Rights, 36 FORDHAM URB. L.J. 27, 37–40 (2009).
37
Lee v. Washington, 390 U.S. 333 (1968). Memoranda in the archives of the papers of Chief Justice
Warren and of Justices Abe Fortas, Potter Stewart, and Byron White reflect what the concurring opinion
stated: that some of the Justices were concerned about desegregation in the context of prisons. Letter from
Justice Hugo Black to Justice Byron White (Nov. 13, 1967), in Earl Warren Papers, MSS52258, Box 650,
File 11 (housed at the Sterling Memorial Library, Manuscripts and Archives, Yale University); Letter
from T.M. to Justice Byron White (Nov. 14, 1967), in Potter Stewart Papers, MS 1367, Box 228, File
2524 (housed at the Sterling Memorial Library, Manuscripts and Archives, Yale University);
Memorandum from T.M. to the Conference (Nov. 16, 1967), in Earl Warren Papers, MSS52258, Box
650, Opinions—Per Curiam (housed at the Sterling Memorial Library, Manuscripts and Archives, Yale
University); Letter from Justice Hugo Black to Justice Byron White (Feb. 5, 1968), in Earl Warren Papers,
MSS52258, Box 650, File 11 (housed at the Sterling Memorial Library, Manuscripts and Archives, Yale
University). The Court’s brief per curiam opinion stated in part:

This appeal challenges a decree of a three-judge District Court declaring that certain Alabama
statutes violate the Fourteenth Amendment to the extent that they require segregation of the races
in prisons and jails, and establishing a schedule for desegregation of these institutions. . . . [T]he
specific orders directing desegregation of prisons and jails make no allowance for the necessities
of prison security and discipline, but we do not so read the “Order, Judgment and Decree” of the
District Court, which when read as a whole we find unexceptionable.
Lee, 390 U.S. at 333–34. Justice Hugo Black, joined by Justices John Marshall Harlan and Stewart, wrote
in the concurrence that they wanted to
make explicit something that is left to be gathered only by implication from the Court’s opinion.
This is that prison authorities have the right, acting in good faith and in particularized
circumstances, to take into account racial tensions in maintaining security, discipline, and good
order in prisons and jails. We are unwilling to assume that state or local prison authorities might
mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm
commitment to the Fourteenth Amendment’s prohibition of racial discrimination.
Id. at 334 (Black, J., Harlan, J., and Stewart, J., concurring).
38
Examples spanning the country include Pierce v. LaVallee, 293 F.2d 233, 235–36 (2d Cir. 1961);
Sewell v. Pegelow, 291 F.2d 196, 198 (4th Cir. 1961); United States ex rel. Cleggett v. Pate, 229 F. Supp.
818, 822 (N.D. Ill. 1964); Talley v. Stephens, 247 F. Supp. 683, 691 (E.D. Ark. 1965); Washington, 263 F.
Supp. at 333; Edwards v. Duncan, 355 F.2d 993, 994–95 (4th Cir. 1966); Johnson v. Avery, 252 F. Supp.

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federal courts had no role to play because prisoners had no constitutional
rights to assert.
To help readers in the twenty-first century realize the kinds of
conditions correctional officials around the United States once defended, we
draw on the experiences of three prisoners: Robert Jordan, William Fulwood,
and Lawrence William Wright. Held in California, the District of Columbia,
and New York, each told federal judges about the brutal conditions to which
they were subjected. These pioneering prisoners succeeded in the 1960s in
persuading courts to acknowledge that constitutional law required prison
officials to make changes.
California prison authorities put Robert Jordan into what they called a
“strip cell” in the California Correctional Training Facility in Soledad.39
Unrepresented, Jordan submitted a variety of papers to the federal court in
the Northern District of California, including a “Motion and Petition for
783, 787 (M.D. Tenn. 1966), rev’d, 382 F.2d 353 (6th Cir. 1967), rev’d, 393 U.S. 483 (1969); Wright v.
McMann, 387 F.2d 519, 525 (2d Cir. 1967); Jordan v. Fitzharris, 257 F. Supp. 674, 683 (N.D. Cal. 1966);
Wilson v. Kelley, 294 F. Supp. 1005, 1013 (N.D. Ga. 1968); Jackson v. Bishop, 404 F.2d 571, 580–81
(8th Cir. 1968); Sostre v. Rockefeller, 312 F. Supp. 863, 888–89 (S.D.N.Y 1970), aff’d in part, rev’d in
part sub nom. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971); Hancock v. Avery, 301 F. Supp. 786,
792 (M.D. Tenn. 1969); Holt v. Sarver, 309 F. Supp. 362, 381 (E.D. Ark. 1970); Sostre v. McGinnis,
442 F.2d at 203–204. A genealogy of how prisoners in one jurisdiction built on the efforts of prisoners in
another in a series of cases decided between 1966 and 1974 comes from Resnik, Puzzles of Prisoners and
Rights, supra note 36.
39
See Complaint, Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966) (No. 44786) [hereinafter
Complaint in Jordan v. Fitzharris]. According to newspaper sources, Robert Charles Jordan Jr. was born
in 1939 and was twenty-seven years old when he filed the strip cell case. He had been convicted at age
nineteen of assault and held in prison thereafter. See Soledad Prison Goes on Trial Tomorrow, SANTA
CRUZ SENTINEL, Aug. 8, 1966, at 4. That report stated that Jordan had been “disciplined 65 times” since
his incarceration, and that most of the charges involved assaults or threats of assault. Id.; see also Soledad
Prisoner to Serve Time Elsewhere, OAKLAND TRIB., Aug. 19, 1966, at 17. In April and June of 2020, we
received answers to letters that we had sent to Mr. Jordan, who remains as of this writing incarcerated in
a California prison (on file with authors). He said that part of what animated his filings in the 1960s was
that prison authorities had denied the humanity of prisoners. In this correspondence, Mr. Jordan described
himself as a self-taught paralegal who watched the changes on the U.S. Supreme Court and in the lower
courts, was in relationship with other litigants bringing structural cases, and was self-conscious about and
engaged in what he understood to be a legal and political battle for rights and authority. He explained that
when filing the lawsuit, he was affiliated with the “black nationalist” movement, and he noted as well
that he appreciated his appointed lawyer’s contributions.
In addition to the strip cell case, Mr. Jordan filed lawsuits against the prison system on other
occasions, including a challenge to the failure to provide confidential exchanges between prisoners and
their attorneys. He won. See In re Jordan, 526 P.2d 523, 527 (Cal. 1974); In re Jordan, 500 P.2d 873,
879–80 (Cal. 1972); see also Philip Hager, Privacy of Inmates’ Letters to Lawyers Upheld by Court, L.A.
TIMES, Sept. 16, 1972, at 31. As far as records reflect, he brought other cases and remains, as of January
2020, incarcerated. See, e.g., Jordan v. Greenan, No. 1:99-cv-05093-REC-SMS-P, 2006 U.S. Dist.
LEXIS 8298 (E.D. Cal. Mar. 3, 2006); People v. Jordan, No. B153586, 2002 Cal. App. Unpub. LEXIS
6278 (Ct. App. July 9, 2002); Jordan v. Rowland, 24 F.3d 247 (9th Cir. 1994).

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Appointment of Counsel” and a detailed complaint.40 He alleged that, naked
and cold, he spent twelve days in the dark in a space measuring six by eight
feet.41 The concrete enclosure had no light and no furnishings; the toilet could
only be flushed from the outside.42 Jordan provided graphic details:
The floors and walls of the cell were also encrusted and filthy with the body and
urinary wastes of the previous occupants who evidently and obviously placed
them there deliberately. It was impossible to avoid bodily contact. Plaintiff hand
and body (being naked) were continually coming into contact with filthy wastes
and again no possible chance of washing or cleansing his hands, face or body
was given plaintiff and he was forced to eat and handle his food with his hands
contaminated with other human beings[’] filth and urinary wastes. 43

Seeking protection under law44 Jordan argued that these conditions
violated federal and state law because they constituted “1. Cruel and Unusual
Punishment; 2. Cruel and Wilful Inhumanities and Atrocities; 3. Violations
of Federal Constitutional and Civil Rights; 4. Denial and refusal of the Equal
Protection of the Laws; 5. Physical injury, harm and loss; [and] 6. Criminal
Conspiracy and Prejudicial Discrimination.”45
Such degradation was not unique to California. William Fulwood, held
at Lorton Reformatory and thereafter in the District of Columbia’s jail,
alleged that he had been put into solitary confinement because he was a Black
Muslim leader.46 When federal judge Burnita Matthews (the first woman to
sit on the federal district courts) concluded in 1962 that the discriminatory

40
Motion & Petition for Appointment of Legal Counsel, Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.
Cal. 1966) (No. 44309); Petition for Writ of Habeas Corpus, Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.
Cal. 1966) (No. 44786).
41
Jordan, 257 F. Supp. at 676.
42
Id. At the hearing, a psychiatrist testified that the cell was not totally dark because “a slight seepage
of light” existed. Id. at 682.
43
Complaint in Jordan v. Fitzharris, supra note 39, at 10; see also Trial Transcript at 368–422,
Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966) (Nos. 44309 & 44786).
44
Complaint in Jordan v. Fitzharris, supra note 39, at 6.
45
Id.
46
Fulwood filed a writ for mandamus or habeas corpus; he alleged that he was prevented from
practicing his religion because he could not join religious services or receive materials and that he was
discriminated against because of his religion by being prevented from corresponding with the leader of
his faith. Fulwood also alleged that prison officials interfered with access to his lawyer. See Fulwood v.
Clemmer, 206 F. Supp. 370, 372–78 (D.D.C. 1962). This decision came two years before Cooper v. Pate,
which held that prisoners could bring civil rights claims. See 378 U.S. 546 (1964). Online genealogical
databases provide some information about Fulwood, who was born in 1933. He had been sentenced to
two to eight years for robbery. Press coverage of the litigation included the headline “Black Muslim
Denies Hate of Whites Taught” for a story by Phil Thomas published in April 7, 1962 in D.C.’s Evening
Star.

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retaliation was unconstitutional, she described the space in which he spent
thirteen days:
[That] cell . . . is approximately eight feet by twelve feet, with a stone floor and
stone walls on three sides. There is no window, so that no natural light enters
the cell, and the single artificial light is controlled from outside the cell. There
is no bed; a mattress is placed on the floor at ten o’clock at night and taken out
at six o’clock in the morning. The toilet has no top and in most cases is not
flushable from inside the cell. There is no wash basin. 47

The judge further explained that a prisoner was “allowed no reading
matter, no exercise, no visitors, no mail unless of an emergency nature, and
only occasionally a shave and shower . . . . For breakfast he usually receives
some dry cereal and water, and for lunch and dinner some potatoes and a
vegetable or two with bread and water.”48

47

Fulwood, 206 F. Supp. at 378. Judge Matthews was nominated by President Harry Truman in
1949. See Linda Greenhouse, Burnita S. Matthews Dies at 93; First Woman on U.S. Trial Courts, N.Y.
TIMES (Apr. 28, 1988), https://www.nytimes.com/1988/04/28/obituaries/burnita-s-matthews-dies-at-93first-woman-on-us-trial-courts.html [https://perma.cc/QY8Z-GDKH]. A daughter of the owner of a
plantation in Mississippi, Judge Matthews pursued law when many barriers for women to do so existed.
See Kathanne W. Greene, Burnita Shelton Matthews: Suffragist, Feminist, and Judicial Pioneer, MISS.
HIST. NOW (Aug. 2017), http://mshistorynow.mdah.state.ms.us/articles/417/burnita-shelton-matthewssuffragist-feminist-judicial-pioneer [https://perma.cc/3XDN-5HZX]. Judge Matthews selected a highprofile lawyer, E. Barrett Prettyman, Jr., to represent Fulwood. Prettyman was the son of a judge on the
D.C. Circuit after whom the U.S. federal courthouse in D.C. is named. Between 1953 and 1955,
Prettyman, Jr. clerked on the U.S. Supreme Court for Justices Robert Jackson, Felix Frankfurter, and
Harlan in a period during which the Court issued its unanimous ruling in Brown v. Board of Education.
In his oral history, Prettyman, Jr. explained that the court had asked him to represent
a gentleman named William Fulwood, who was a Black Muslim at the District of Columbia Jail,
and this was now in the very early stages of the Muslim movement among African-Americans.
He had recently become a Muslim, and he was attempting to have possession of the Koran and to
wear Muslim medals and so forth, and the prison authorities denied him that right. We had
extensive hearings before Judge Burnita Matthews, who was a female judge from Mississippi,
and she held, I believe for the first time in this country, that indeed Muslims have the right to
practice their religion, to carry their medals, to have the Koran and so forth, in prison, and she
entered an order to the prison authorities to that effect. And that, of course, has had wide-ranging
repercussions since.
Interview by Robert H. Kapp, Historical Soc’y of the D.C. Circuit Court, with E. Barrett Prettyman, Jr.,
in Washington, D.C. (Oct. 3, 1996), available at https://dcchs.org/sb_pdf/interview-5-e-barrettprettyman/ [https://perma.cc/8UDX-AZQ4]; see also Sam Roberts, E. Barrett Prettyman Jr., Lawyer Who
Fortified
Desegregation
Ruling,
Dies
at
91,
N.Y. TIMES
(Nov.
8,
2016),
http://nytimes.com/2016/11/09/us/e-barrett-prettyman-jr-lawyer-who-fortified-desegregation-rulingdies-at-91.html [https://perma.cc/38ZS-6FW2]; Legends in the Law: E. Barrett Prettyman, D.C. BAR
(Apr./May 1997), https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/legendprettyman.cfm [https://perma.cc/2KE5-3X2H].
48
Fulwood, 206 F. Supp. at 378. Thereafter, prison officials transferred Fulwood to the D.C. Jail
where Fulwood was put into a “Special Treatment Unit,” then in a special “control cell,” and back to the

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The experiences of Jordan and Fulwood were paralleled by those of
Lawrence William Wright, confined at Clinton State Prison, a maximumsecurity facility in upstate New York. The district court, dismissing the
complaint in 1966, bemoaned the “flood” of prisoners’ claims imposing a
“burden” on federal courts for allegations within the discretion of prison
officials.49 Reversing, the Second Circuit quoted Wright’s description:
[T]he said solitary confinement cell wherein plaintiff was placed [for 54 days]
was dirty, filthy and unsanitary, without adequate heat and virtually barren; the
toilet and sink were encrusted with slime, dirt and human excremental residue
superimposed thereon; plaintiff was without clothing and entirely nude for
several days [elsewhere said to be 11 days] until he was given a thin pair of
underwear to put on; . . . denied the use of soap, towel, toilet paper, tooth brush,
comb, and other hygienic implements and utensils . . . compelled under threat
of violence, assault or other increased punishments to remain standing at
military attention in front of his cell door each time an officer appeared from
7:30 A.M. to 10:00 P.M. every day . . . therefore . . . [in] subfreezing
temperatures causing plaintiff to be exposed to the cold air and winter weather
without clothing or other means of protecting himself . . . .50

When called upon to defend these lawsuits, state officials often argued
that, as a matter of federalism and separation of powers, they alone had the
authority to determine the metes and bounds of in-prison practices. Prison
officials asserted that federal courts had nothing to say to them. For example,
when seeking to have the complaint dismissed in Jordan v. Fitzharris,
California contended that Jordan’s “general allegations” were “insufficient

Special Treatment Unit for months, where he was under a myriad of restrictions. In all, he was out of
“general inmate population” for more than two years. Id. at 378–79.
49
See Wright v. McMann, 257 F. Supp. 739, 740 (N.D.N.Y. 1966), rev’d, 387 F.2d 519, 521 (2d Cir.
1967). That judge, Stephen Brennan, who was appointed by President Truman and served as the Chief
Judge of the Northern District from the late 1940s until 1963, opined: “This is one of the continuous flood
of applications by state prisoners which seek some form of relief, from the federal courts, apparently
occasioned by the expanded concept of an individual’s constitutional rights as delineated in recent
authoritative decisions. That the vast majority of such applications are without merit does not relieve the
court from the burden imposed.” Id.
50
Wright v. McMann, 387 F.2d 519, 521 (2d Cir. 1967) (quoting Wright’s pro se complaint, finding
him to have stated a claim and remanding for further proceedings). On appeal, Wright was listed as “pro
se,” and an attorney, Betty D. Friedlander, was also listed as appearing for him. Id. at 520. As the Second
Circuit noted, Wright was serving an indeterminate sentence after a 1963 conviction “for certain sexual
offenses.” Id. at 521 n.1. Wright, born in 1939, is white and as of the winter of 2020, was listed as having
been convicted thereafter and incarcerated in the New York prison system.

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to state a claim for relief under the Civil Rights Act”51 because no federal
cause of action existed to challenge prison conditions.52
Reduced to its essentials, these allegations merely mean that plaintiff does not
agree with the defendant as to the degree of custody required to maintain proper
control and discipline over him . . . . [T]he practice of placing unruly or
dangerous prisoners [in strip cells] . . . is accepted penological practice in the
prison systems of both the federal government and the state’s. 53

In addition, arguing the merits, officials generally claimed that their
sanctions served the penological purposes of maintaining control and
deterring misbehavior. Again, Jordan provides an example. California
argued that it needed strip cells to contain disruptive prisoners. As the judge
explained, California’s officials had argued that “the use of the ‘strip’ or
‘quiet’ cell is warranted in eliminating so-called ‘incorrigible’ inmates from
the rest of the inmates in the institution; that fighting, physical violence,
throwing objects, vile, abusive and threatening language and epithets,
sometimes coupled with overt conduct, call for stringent, strong and
protective measures.”54
That defense of “correctional need” was not idiosyncratic but was
repeated in other cases in the 1960s and thereafter. In the Seventh Circuit’s
1963 decision in Cooper v. Pate (subsequently reversed by the U.S. Supreme
Court), Illinois contended that punishing Thomas Cooper and cutting off
access to religious materials was justified because the Black Muslim
movement used the “façade” of religion to cloak its true aim: to
“overthrow . . . the white race.”55 More than forty years later, in 2005, Ohio
asserted in Wilkinson v. Austin that solitary confinement was a necessary tool
of prison management.56
In the cases brought by Jordan, Fulwood, and Wright, the states lost,
and each ruling garnered attention because it was pathbreaking. Jordan v.
Fitzharris again is illustrative. According to the press, the Honorable George
Harris convened a hearing “for the first time in federal history” at the
California state prison to take testimony from several other prisoners who
51

Memorandum in Support of Motion to Dismiss at 6, Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.
Cal. 1966) (No. 44786).
52
See Return to Order to Show Cause & Points & Authorities in Opposition to Petition for Writ of
Habeas Corpus at 2, Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966) (No. 44309).
53
Memorandum in Support of Motion to Dismiss, supra note 51, at 7–8 (citations omitted).
54
Jordan v. Fitzharris, 257 F. Supp. 674, 679–80 (N.D. Cal. 1966).
55
324 F.2d 165, 166 (7th Cir. 1963), rev’d, 378 U.S. 546, 546 (1964) (paraphrasing the Attorney
General of Illinois).
56
See Reply Brief for Petitioners at 16, Wilkinson v. Austin, 545 U.S. 209 (2005) (No. 04-495).

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had been in strip cells.57 Rather than defer to the State’s claims that federal
courts had no jurisdiction or that strip cells were useful modes of control for
disruptive prisoners, Chief Judge Harris prohibited that treatment, which he
described as not what a “beast” or a human should have to endure.58
Chief Judge Harris found that the State had not given Jordan the
“essentials for survival” such as “water and food and . . . basic sanitation”59
and concluded that “[r]equiring man or beast to live, eat and sleep under the
degrading conditions . . . does violence to elemental concepts of decency.”60
Because prison authorities had “abandoned elemental concepts of decency
by permitting conditions to prevail of a shocking and debased nature,” the
court had to “intervene promptly—to restore the primal rules of a civilized
community in accord with the mandate of the Constitution of the United
States.”61 In addition to “regular change of bedding, clothing, bathing and
feeding,” the judge ruled that:
The punitive segregation section and all the cells in it should be evenly heated
and adequately lighted and ventilated. Artificial ventilation is usually
necessary. . . . Toilets which the occupant of the cell cannot flush need constant
supervision by the officer. Wholly dark cells should not be used and if there is
a solid door on the cell, it should be so designed that it does not exclude all
light.62

57
Soledad Prison Goes on Trial Tomorrow, supra note 39, at 4. The judge appointed a San Francisco
lawyer, Charles B. Cohler, to represent Jordan. See Tom Hall, Soledad ‘Strip Cells’ Shock Federal Judge,
S.F. EXAMINER, Sept. 6, 1966, at 1; Jordan, 257 F. Supp. at 675.
58
See Jordan, 257 F. Supp. at 680. Jordan’s first federal lawsuit was dismissed on August 12, 1965
based on the view that he had not exhausted his state remedies. The California Supreme Court denied his
petition on October 7, 1965. See Resubmission for Petition for a Writ of Habeas Corpus, Jordan v.
Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966) (No. 43983); Petition for Writ of Habeas Corpus, Jordan v.
Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966) (No. 44786). He then submitted his petition in federal court
on October 14, 1965, and the decision on the merits was rendered on September 6, 1966.
59
Jordan, 257 F. Supp. at 682.
60
Id. at 680. The judge’s citations included Trop v. Dulles, as well as the Supreme Court’s rulings
in Robinson v. California, Monroe v. Pape, and Cooper v. Pate, all discussed supra notes 27–32 and
accompanying text.
61
Jordan, 257 F. Supp. at 680.
62
Id. at 683–84. The Oakland Tribune reported that California transferred Jordan out of that facility.
See Soledad Prisoner to Serve Term Elsewhere, supra note 39, at 17; see also Jordan Is Moved to Quentin,
CALIFORNIAN, Sept. 9, 1966, at 1. Newspapers also reported that California officials stated after the ruling
that they planned to continue to use strip cells. See Jack Welter, Strip Cells Defended by McGee, S.F.
EXAMINER, Sept. 7, 1966, at 1. Prisoners were not to stay more than twenty-nine days unless the Director
of Corrections permitted it, and the official invoked in the headline, Richmond McGee, defended the cells
as “humane.” Id. at 6. “We don’t use the dark dungeons or handcuff them and hang them to the wall as
they once did in Folsom.” Id.

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Chief Judge Harris’s revulsion at the lack of bedding, clothing,
sanitation, hygiene, light, and ventilation was echoed by the Second Circuit
in Wright v. McMann63 and by the D.C. district court in Fulwood v.
Clemmer,64 as well as by other courts.65
63
See 387 F.2d 519, 526–27 (2d Cir. 1967). The court cited Trop v. Dulles among other cases and
quoted Chief Judge Harris’s discussion in Jordan about California’s breach of “elemental concepts of
decency.” Id. at 526 n.16. On remand, another federal district court judge, James Thomas Foley, who was
appointed by President Truman and served as the Chief Judge of the District from 1963 to 1980, held that
New York’s treatment of Wright violated the Eighth Amendment. Wright v. McMann, 321 F. Supp. 127,
138–41 (N.D.N.Y 1970), aff’d in part, modified in part, and rev’d in part, 460 F.2d 126 (2d Cir. 1972).
Wright had sought $10,000 in damages; the district court awarded $1,500 in compensation, and that
smaller amount was justified in part because of a lack of medical and other records. Id. at 144. Wright’s
case had been consolidated with claims by Robert Mosher. The district court held that Mosher’s rights
were violated by the five-month placement in solitary confinement because he had not signed a “safety
sheet” stating he had read the prison’s rules. Relying in part on testimony by James Bennett, the former
Director of the Federal Bureau of Prisons, the district court held that punishment was disproportionate
and restored the good-time credits lost. Id. at 146. Thereafter, the district court issued an unreported order
directing New York State not to use segregation until it promulgated new rules to be sure the cells
“safeguard[ed] the health of occupants, that heat and ventilation were sufficient, that nudity could not be
enforced solely as a disciplinary measure,” and that unannounced inspections were necessary. See Wright,
460 F.2d at 128; see also N.Y. State Prison Reforms Ordered by Federal Judge, TIMES REC., Aug. 4,
1970, at 10.
Thereafter, and citing the 1972 en banc decision of Sostre v. McGinnis (discussed infra), the Second
Circuit reversed the case. See Wright, 460 F.2d at 130. The court reversed the injunction on rulemaking
and use of solitary confinement while it upheld the relief accorded the individuals, including Judge
Foley’s award to Wright of $1,500 in damages for the thirty-two days spent in “inhuman solitary
confinement.” Judge J. Edward Lumbard, writing for the Second Circuit, cited the court’s first 1967 ruling
in Wright v. McMann as he made plain that the conditions the court had described as “foul” and
“inhumane” were clearly “unconstitutional.” Id. at 135; see also Dannemora Convict Gets $1,500 Award,
TIMES REC., Mar. 17, 1972, at 23. The Second Circuit also objected to strip cells in LaReau v.
MacDougall, 473 F.2d 974 (2d Cir. 1972), which involved their use in Connecticut. The court concluded
that putting individuals in these dark cells violated “the human dignity” of prisoners, as it also noted the
potential harm to their mental health. Id. at 978. We explain more about the law of the Second Circuit in
our discussion of Sostre v. Rockefeller, 312 F. Supp. 863 (S.D.N.Y. 1970), aff’d in part, rev’d in part sub
nom. Sostre v. McGinnis, 442 F.2d 178 (2d. Cir. 1971), infra notes 191–195, which also reference the
1972 Wright decision.
64
206 F. Supp. 370, 378–79 (D.D.C. 1962). Press reports described the holding as the “first time the
sect” was recognized as a religion. See Black Muslim Faith Ruled a Religion, RICHMOND TIMESDISPATCH, July 4, 1962, at 4.
65
See, e.g., Hancock v. Avery, 301 F. Supp. 786, 789 (M.D. Tenn. 1969). As the district judge
described it, Tennessee prison officials had forced Don Lee Hancock “to remain in the dry cell without
any means of cleaning his hands, body or teeth. He is denied the use of soap, towel, toilet paper, and other
hygienic materials. No means have been provided which would enable him to clean any part of his body
at anytime.” Id. Citing the 1967 decision in Wright v. McMann and the 1965 ruling in Jordan v. Fitzharris,
the court held that the conditions were cruel and unusual punishment. Id. at 792 n.2. Thereafter, the
prisoners sought damages; the district court held that because Tennessee had “eliminated the dry cell and
complied with its order,” no relief was appropriate. That ruling was affirmed. See Hancock v. Avery,
452 F.2d 1214 (6th Cir. 1972). A district judge in Pennsylvania found unconstitutional the placement of
prisoners for 2.5 days in a six-by-nine-foot cell that had no functioning toilets, toilet paper, soap, or light.

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Such victories should not be overstated. During the same era, several
federal courts rejected similar cases that challenged conditions such as
solitary confinement in “dry cells” that lacked running water, placement
naked in cold cells, and days without baths. In the words of one district court,
such claims did not have a “constitutional dimension.”66 Other courts did not
find unconstitutional the practice of putting prisoners on thirty days of bread
and water or other punitive deprivations of food and water and lack of access
to medical care.67 And even when judges recognized claims of medical care
and access to the courts, some jurists also described the deference due to
prison officials. As one court wrote, “The hands-off doctrine operates
reasonably to the extent that it prevents judicial review of deprivations which
are necessary or reasonable concomitants of imprisonment.”68
The judges who did reject some forms of degradation provided various
accounts of the legal basis to do so. Their opinions did not focus on whether
strip cells and isolation were used regularly or were “unusual.” Indeed, as
the states argued and reported decisions reflected, what these prisoners
experienced was horrifyingly commonplace. Rather, the lower court
opinions often cited Chief Justice Warren’s 1958 discussion of “decency” in
Trop v. Dulles, which, as one commentator put it in 1973, was central to the
“emerging rights of the confined.”69 Illustrative is Chief Judge Harris’s
assessment in Jordan v. Fitzharris that the strip cell was shocking in light of
“developing concepts of elemental decency.”70 That opinion, like others,
invoked the concept of proportionality—that the Constitution did not permit
a prisoner to be “unreasonably punished for the infraction of a rule,” and,
therefore, a “punishment out of proportion to the violation may bring it
See Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969), aff’d, 435 F.2d 1255 (3d Cir. 1970); see also
Austin v. Harris, 226 F. Supp. 304, 308–09 (W.D. Mo. 1964) (noting that “petitioner’s allegations” that
he has a “long-standing case of bone arthritis” for which his repeated requests for medical attention were
denied “are sufficient to require further investigation”).
66
See Roberts v. Pepersack, 256 F. Supp. 415, 431 (D. Md. 1966), cert. denied 389 U.S. 877 (1967).
That district court ruled that twenty-seven hours in solitary and another sixteen days in “semisegregation” were “milder” than the conditions found unconstitutional in Fulwood. Id. Likewise, in 1962,
a district court in Colorado held that Theodore Charles Ruark and Charles Willard Ferguson had not stated
a claim when they alleged that they were held for fifty-two hours without food, water, or toilet paper. See
Ruark v. Schooley, 211 F. Supp. 921 (D. Colo. 1962). The Third Circuit also rejected a proposed class
action that challenged New Jersey’s use of dry cells. See Ford v. Bd. of Managers of N.J. State Prison,
407 F.2d 937, 938 (3d Cir. 1969).
67
See e.g., Novak v. Beto, 453 F.2d 661, 668, 671 (5th Cir. 1971).
68
Edwards v. Duncan, 355 F.2d 993, 994 (4th Cir. 1966).
69
See William S. McAninch, Penal Incarceration and Cruel and Unusual Punishment, 25 S.C. L.
REV. 579, 602 (1973).
70
257 F. Supp. 674, 679 (N.D. Cal. 1966); see also Jackson v. Bishop, 404 F.2d 571, 578–79 (8th
Cir. 1968).

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within the bar against unreasonable punishments.”71 Sometimes courts also
raised concerns that in-prison treatment did not comport with the pursuit of
any legitimate penological purpose.72
E. Scaling Up: Prison Systems’ Unconstitutional Conditions
In 1970, with the infusion of resources from court-appointed lawyers
and under the umbrella of the 1966 revisions to the federal class action rule,
the scale shifted from individual to system-wide litigation. Many
commentators have provided detailed accounts that analyze specific
jurisdictions as well as decades of case law on prison conditions.73 Here, we
focus on the relationship between the rulings on strip and solitary cells and
class action litigation about conditions in general population, so as to
document the links. What was held impermissible in individual cases was
likewise ruled unconstitutional system-wide.
A federal judge in Arkansas—J. Smith Henley—was the first in the
country’s history to conclude that an entire “prison system” constituted cruel
and unusual punishment.74 Two years later, Chief Judge William Keady,
sitting in a federal court in Mississippi, held that the state’s Parchman Farm
had housing units “unfit for human habitation under any modern concept of
decency.”75 In 1976, Judge Frank Johnson (who, as discussed, in 1966 held
Alabama’s segregation of prisoners unconstitutional) concluded that
conditions in Alabama’s prisons violated the Eighth Amendment. By 1987,
71
Fulwood v. Clemmer, 206 F. Supp. 370, 379 (D.D.C. 1962). The court held that factors relevant
to proportionality included the placement in “solitary confinement; his subsequent solitary confinement
for the maximum period for exercising a right to which he was clearly entitled; his detention for six
months in a special treatment cell; [and] his exclusion for more than two years from the general prison
population.” Id.
72
A summary of the law in the early 1970s also described the lower court cases as inquiring into
whether a practice “shock[ed] the general conscience.” See McAninch, supra note 69, at 584.
73
See, e.g., MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE
MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS 30–34 (1998); LARRY W. YACKLE,
REFORM AND REGRET: THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON
SYSTEM (1989); Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation,
97 MICH. L. REV. 1994, 2000 (1999).
74
The first decision was Holt v. Sarver (Holt I), 300 F. Supp. 825 (E.D. Ark. 1969). The decision on
the system-wide class action was Holt v. Sarver (Holt II), 309 F. Supp. 362 (E.D. Ark. 1970). Thereafter,
the litigation was before the Eighth Circuit and the district court and, in 1978, the Supreme Court
approved implementation efforts. See Hutto v. Finney, 437 U.S. 678, 681–85 (1978).
75
Gates v. Collier, 349 F. Supp. 881, 887 (N.D. Miss. 1972), aff’d, 489 F.2d 298 (5th Cir. 1973),
and aff’d, 501 F.2d 1291 (5th Cir. 1974), and amended by 390 F. Supp. 482 (N.D. Miss.
1975), aff’d, 525 F.2d 965 (5th Cir. 1976), and supplemented by 423 F. Supp. 732 (N.D. Miss.
1976), aff’d and remanded, 548 F.2d 1241 (5th Cir. 1977). For a detailed account of Mississippi’s racist
and brutal treatment of prisoners, see DAVID M. OSHINSKY, “WORSE THAN SLAVERY”: PARCHMAN FARM
AND THE ORDEAL OF JIM CROW JUSTICE (1996).

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more than thirty state prison systems were in litigation about constitutional
violations.76
The parallels between individual challenges detailing the filth and
degradation in strip and solitary cells and these system-wide cases can be
seen from Judge Johnson’s 1976 findings of fact. Alabama prisons were
“horrendously overcrowded,” “filthy,” understaffed, and unsafe institutions,
in which “rampant violence” was “widespread.”77 Windows were “broken
and unscreened,” permitting in mosquitoes and flies.78 “Old and filthy cotton
mattresses,” he wrote, led to “the spread of contagious diseases and body
lice.”79 Heat and ventilation were inadequate, as were the electrical systems;
the “exposed wiring pose[d] a constant danger to the inmates, and
insufficient lighting result[ed] in eye strain and fatigue.”80 In one area, where
more than 200 men were housed, there was “one functioning toilet.”81 The
court described that as punishment, prisoners were locked into an unstaffed
building, fed one meal a day, and rarely permitted showers.82
Before turning to the decades that followed, we need to leap forward to
the present to underscore the misery that remains—including in systems such
as Alabama, where litigation is ongoing. In April of 2019, the U.S.
Department of Justice wrote to Alabama’s governor to report it had
concluded that “conditions at Alabama’s prisons violate[d] the Eighth
Amendment” by failing to protect against “prisoner-on-prisoner violence”
and sexual abuse, and that the unsafe conditions were “exacerbated by

76
Elizabeth Alexander, Prisoners’ Lawyers Face Critical Issues, 13 J. NAT’L PRISON PROJECT 22,
24 (1987).
77
See Pugh v. Locke, 406 F. Supp. 318, 322–26 (M.D. Ala. 1976), aff’d and remanded sub nom.
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. granted in part, judgment rev’d in part sub nom.
Alabama v. Pugh, 438 U.S. 781 (1978). Painfully graphic detail comes from Matthew Meyers, who
worked for the ACLU on James v. Wallace. He described going to Draper Correctional Center and finding
“dozens upon dozens of old, helpless men, many in wheelchairs, incontinent or bedridden, unable to care
for themselves and jammed into squalid, dilapidated living quarters which could only be described as a
human death trap.” He then found the “doghouse,” a “concrete building with no windows and a solid
front door with eight cells, each about the size of a small door. This windowless concrete building and
the cells in it had no lights, no ventilation, no toilets, no furniture, no beds, no running water, and no sinks
or showers.” No guards were in, and cells had five to six prisoners, put there for violating minor rules
like “talking back” to a guard. Matthew L. Myers, 12 Years After James v. Wallace, 13 J. NAT’L PRISON
PROJECT 8, 8–9 (1987).
78
Pugh, 406 F. Supp. at 323.
79
Id.
80
Id.
81
Id.
82
Id. at 327.

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serious deficiencies in staffing and supervision and overcrowding.”83 On
January 31, 2020, the New York Times reported that twenty-nine people had
died due to “suicides, stabbings, and other preventable deaths” in 2019 in
those facilities,84 and in February of 2020, prisoners’ families brought civil
rights actions alleging that the failures to provide care had resulted in the
deaths of four prisoners.85
Another example comes from a January 2020 order by a district judge
in Rhode Island who concluded that the State had in the mid-1990s
“unilaterally and substantively” changed its rules for prison classification
and discipline, despite a 1974 decree detailing the procedures; the court
ordered the Department of Corrections to comply with the decree it had
ignored.86 And yet a third example of contemporary horrors is from
Mississippi’s Parchman Farm, where twenty-four deaths occurred between
December 29, 2019 and March 4, 2020, more than double the average rate
in previous years.87
These accounts of the evolution and some of the impact of legal
doctrine show courts’ dependence on those whose behavior they aim to
change. The gap between judicial order and prisoners’ experiences spans the
decades of litigation, which returns us to the 1970s, when the U.S. Supreme

83

Letter from Eric S. Dreiband, Assistant Att’y Gen., Civil Rights Div., Louis V. Franklin, Sr., U.S.
Att’y, M.D. Ala., Jay E. Town, U.S. Att’y, N.D. Ala., Richard W. Moore, U.S. Att’y, S.D. Ala., to Kay
Ivey, Governor of Ala. (Apr. 2, 2019), available at https://www.justice.gov/opa/pressrelease/file/1150276/download [https://perma.cc/9PHB-LMRC]. The attached investigation was replete
with horrific discussion of stabbings, beatings, sexual violence, and deaths. See U.S. DEP’T OF JUSTICE,
CIVIL RIGHTS DIV. & U.S. ATTORNEYS’ OFFICES FOR THE NORTHERN, MIDDLE, AND SOUTHERN DISTS.
OF
ALA., INVESTIGATION OF ALABAMA’S STATE PRISONS FOR MEN 13 (2019),
https://www.justice.gov/crt/case-document/file/1149971/download [https://perma.cc/SVE4-NPEE].
84
Katie Benner, Plans for Alabama’s Deadly Prisons ‘Won’t Fix the Horrors,’ N.Y. TIMES (Jan. 31,
2020), https://www.nytimes.com/2020/01/31/us/politics/alabama-prisons.html [https://perma.cc/HS5Q6J7L]. The inadequate responses and safekeeping of people with mental illness is chronicled in Braggs
v. Dunn, 367 F. Supp. 3d 1340 (M.D. Ala. 2019).
85
Complaint, Head v. Dunn, No. 2:20-cv-132 (M.D. Ala. Feb. 24, 2020).
86
Paiva v. R.I. Dep’t of Corr., No. 17-MC-14-JJM-LDA, 2020 WL 430062 (D.R.I. Jan. 28, 2020).
87
Lici Beveridge, Mississippi Prison Crisis: 23rd, 24th Inmate Deaths Reported Since Late
December,
MISS.
CLARION
LEDGER
(Mar.
4,
2020,
9:37
AM),
https://www.clarionledger.com/story/news/local/2020/03/04/23rd-mississippi-inmate-death-since-dec29-reported/4951406002/ [https://perma.cc/77XV-C8CG].
In 2020, a group of prisoners filed a new class action, Complaint, Lang v. Taylor, No. 4:20-cv-30
(N.D. Miss. Feb. 25, 2020), that alleged “Parchman has been understaffed and underfunded for decades.
As a result, prisoners endure abhorrent conditions, abuse and constant violence, inadequate health care
and mental health care, and overuse of isolation. The conditions of confinement at Parchman are so
barbaric, the deprivation of health and mental health care so extreme, and the defects in security so severe,
that the people confined at Parchman live a miserable and hopeless existence confronted daily by
imminent risk of substantial harm in violation of their rights under the U.S. Constitution.” Id. at 3.

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Court reviewed eight years of recalcitrance by the Arkansas corrections
department. Rejecting arguments that the judge had exceeded his powers
when ordering a thirty-day cap on the length of time a person could spend in
solitary cells, the Court sustained Chief Judge Henley’s decision.88 Further,
interpreting the federal statute authorizing attorneys’ fees and the Eleventh
Amendment, the majority upheld a fee award against the State.89
We have thus far focused on unsafe facilities, deprivations of food,
light, and medical care, and discrimination. In addition, several lower courts
concluded that the profound lack of activity, often called “idleness,” that was
commonplace in many prison systems was too destructive to permit. In his
1970 ruling on Arkansas prisoners’ class action, Chief Judge Henley
commented that the “absence of an affirmative program of training and
rehabilitation may have constitutional significance where in the absence of
such a program conditions and practices exist which actually militate against
reform and rehabilitation.”90 In 1976, Judge Frank Johnson concluded that a
prison system “cannot be operated in such a manner that it impedes an
inmate’s ability to attempt rehabilitation, or simply to avoid physical, mental
or social deterioration.”91 In 1977, Judge Hugh Henry Bownes invoked both
of those decisions as he identified “[i]dleness and boredom” as sources of
“debilitation” and held the conditions in New Hampshire unconstitutional. 92
But as the task of constructing constitutional punishment practices
loomed large, appellate judges pushed back. They rejected efforts to afford
prisoners opportunities for stimulation and activity, even as they licensed
holding ever larger numbers of people in prison. One such rule was
announced by the Fifth Circuit when, in 1977, it overturned aspects of the
remedies that Judge Johnson had required in Alabama.93 The Fifth Circuit
stated that:
If the State furnishes its prisoners with reasonably adequate food, clothing,
shelter, sanitation, medical care, and personal safety, so as to avoid the
imposition of cruel and unusual punishment, that ends its obligations under
Amendment Eight. The Constitution does not require that prisoners, as
individuals or as a group, be provided with any and every amenity which some

88
89
90
91
92
93

Hutto v. Finney, 437 U.S. 678, 685–88 (1978).
Id. at 699.
Holt v. Sarver, 309 F. Supp. 362, 379 (E.D. Ark. 1970).
Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Ala. 1976).
Laaman v. Helgemoe, 437 F. Supp. 269, 317 (D.N.H. 1977).
See Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977).

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person may think is needed to avoid mental, physical, and emotional
deterioration.94

Four years later, a majority on the Supreme Court echoed the Fifth
Circuit’s disparaging characterization (“every amenity”) of the obligation to
provide activities. When addressing the legality of double-celling in 1981 in
Rhodes v. Chapman, the majority diminished the impact of the resulting
intense physical contact and lack of any personal privacy by labeling the
result “discomfort.”95
Before recounting what was lost by the Court’s condoning doublecelling, we need to underscore what had been won since Robert Jordan,
William Fulwood, and Lawrence William Wright brought their lawsuits. A
group of Black and white prisoners, most of whom had little formal
education and no resources, transformed American law by persuading
federal judges to regulate some aspects of in-prison punishment. Incarcerated
individuals, writing about the details of their degradation, sought relief from
corporal punishment; radical food deprivations; strip cells; solitary
confinement in dark cells; prohibitions on access to courts, on religious
observance, and on reading materials; transfers to higher levels of security
in and out of the same prison; and more.
Those victories were reflected in 1980, when Ohio sought (and
obtained) Supreme Court review of lower court orders that had banned
double-celling. Ohio’s petition for certiorari stated that double-celling did
not “deprive inmates of minimum constitutional guarantees to adequate
food, clothing, shelter, sanitation, medical care and personal safety.”96
Although the State challenged the lower courts’ prohibition on the placement
of people for long terms in small, double cells, Ohio acknowledged that the
Constitution did require it to provide what states a decade earlier had argued
they had no legal obligation to do. Thus, only fourteen years after California
prison officials claimed in Jordan v. Fitzharris that the U.S. Constitution had
no role in prisons, states routinely conceded that the Constitution applied to

94
Id. at 291. In Newman, the Fifth Circuit reviewed and narrowed the scope of U.S. District Court
Judge Frank Johnson’s structural injunction that mandated sweeping changes to the Alabama prison
system. The Fifth Circuit upheld Judge Johnson’s order to ameliorate the conditions in Alabama’s
overcrowded “solitary confinement” scheme but ruled that the district court exceeded its authority in
mandating rehabilitative and site-specific changes to carceral design. Id. at 288–91.
95
See 452 U.S. 337, 349 (1981).
96
Petition for Writ of Certiorari at 1, Rhodes v. Chapman, 452 U.S. 337 (1981) (No. 80-332) (filed
Sept. 2, 1980). The State’s phrasing is close to but not identical to what the U.S. Supreme Court had read
the Eighth Amendment to require—“adequate food, clothing, shelter, and medical care.” See Farmer v.
Brennan, 511 U.S. 825, 832 (1994).

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their treatment of prisoners, even as they contested whether a particular
action was unlawful.97
Ohio succeeded in persuading the U.S. Supreme Court that it could put
two people in a cell built for one. The pivotal decision by Justice Lewis F.
Powell in 1981 in Rhodes v. Chapman summarized the Court’s law on prison
conditions as it constricted it. For the majority, Justice Powell wrote that the
Eighth Amendment aimed to prevent “the wanton and unnecessary infliction
of pain” through punishments that were “grossly disproportionate to the
severity of the crime,” or that “deprive inmates of the minimal civilized
measure of life’s necessities.”98 Citing the Court’s 1976 decision in Estelle
v. Gamble, which held that prisons could not be deliberately indifferent to
known medical needs,99 Justice Powell also explained that “unnecessary and
wanton” pain was not limited to the “physically barbarous.”100 Practices that
were “totally without penological justification,”101 such as “deliberate
indifference to serious medical needs,” violated the Eighth Amendment.102
Thus, the Eighth Amendment made it unconstitutional to deprive people of
clothing, sufficient food, medical care, heat, minimal physical exercise, and
sanitation, and required some level of protection from violence.
Where did the social density and forced intimacy of overcrowding fit?
The graphic, gross conditions in the 1960s and 1970s cases could make
double-celling sound somewhat benign. But “wet” prison cells, which are
common in U.S. construction patterns, usually include open toilets and sinks.
As a result, double-celling means that a person has no secluded space in
which to use a toilet. Further, whether newly constructed (as was Ohio’s
prison) or old, densely populated prisons increase the risk of violence and
disease and put a great deal of stress on people and on services from
programs and health care to security.103
These factors prompted the lower courts in Rhodes v. Chapman to
conclude that the Constitution did not permit Ohio to house 2,300 people in
a facility designed for 1,620 prisoners104 when the result was that doublecelled individuals shared sixty-three square feet.105 As a benchmark, the trial
97

See, e.g., Brief of Petitioners, Rhodes v. Chapman, 452 U.S. 337 (1981) (No. 80-332).
Rhodes, 452 U.S. at 347.
99
429 U.S. 97, 104 (1976).
100
Rhodes, 452 U.S. at 346.
101
Id. (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)).
102
See Estelle, 429 U.S. at 104.
103
Chapman v. Rhodes, 434 F. Supp. 1007, 1014–18 (S.D. Ohio 1977), aff’d, 624 F.2d 1099 (6th
Cir. 1980), rev’d, 452 U.S. 337 (1981).
104
Id. at 1020.
105
Id. at 1021.
98

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court had cited the American Correctional Association’s 1977 manual, which
recommended at least sixty to eighty feet of living quarters for each
prisoner.106 In contrast, Justice Powell discounted that standard as “an
aspiration toward an ideal environment for long-term confinement.”107
Moreover, he appeared to justify the “discomfort” of Ohio’s double-celling
by commenting that the prison housed “persons convicted of serious
crimes.”108 In dissent, Justice Thurgood Marshall countered that most of the
Supreme Court’s windows were larger than the space allotted per person in
double cells.109
106
Id. That court had sourced the standards to the “American Correctional Institution.” See AM.
CORR. ASS’N, STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS 27 (1977). Other proposed space
guidelines of that era included the Model Act for the Protection of Rights of Prisoners (fifty square feet).
The Supreme Court used the proper name of the American Correctional Association. See Rhodes,
452 U.S. at 343 n.7. The Supreme Court also referred to the Crime and Delinquency’s Model Act for the
Protection of Rights of Prisoners, which advises fifty square feet of living quarters. Id.
107
Id. at 349. The Court had, by then, also upheld double-celling for pretrial detainees. See Bell v.
Wolfish, 441 U.S. 520, 520 (1979). The trial judge in Chapman v. Rhodes had distinguished that ruling
on the grounds that such conditions were short-term, as contrasted with the years that people held in the
prison would have to spend in such density. See 434 F. Supp. at 1019–21.
108
Rhodes, 452 U.S. at 349.
109
Id. at 371 (Marshall, J., dissenting). In other countries, views closer to the dissent have prevailed.
For example, in 2017, the Supreme Court of Israel ruled that within eighteen months of its judgment, the
state had to provide “every prisoner and detainee” with a living space of 4.5 square meters (or 48.4 square
feet), including a shower and lavatory and 4 meters (or 43 square feet) in dry cells that lacked running
water. HCJ 1892/14 Ass’n for Civil Rights in Isr. v. Minister of Pub. Sec. (unpublished) ¶ 123(A) (June
13, 2017) (Isr.). Those standards were drawn from regulations that called for that allotment of space. Id.
¶ 3.
The decision gave the authorities eighteen months to become compliant with the 4–4.5-meter
requirement and nine months to meet the 3-meter requirement. Id. ¶ 123(b). Implementation questions
are discussed in Lila Margalit, Room for Optimism? Israeli Supreme Court Presses for Implementation
of Ruling on Inmates’ Right to Personal Space, LAWFARE (June 7, 2018, 9:00 AM),
https://www.lawfareblog.com/room-optimism-israeli-supreme-court-presses-implementation-rulinginmates-right-personal-space [https://perma.cc/N24F-M44T].
In terms of transnational standards, the Council of Europe’s Committee on the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) noted that shaping minimum standards was
complex given variation in the type of facility and the length of stay. Nonetheless, CPT had in the 1990s
developed what it termed a “rule of thumb” of a minimum of 6 square meters (64.6 square feet) for a
“single-occupancy” cell and 4 square meters (43 square feet) per person for a “multiple-occupancy cell,”
which also should have a “fully-partitioned sanitary facility” and, if housing more than two people, should
be larger. See CPT/Inf (2015) 44, ¶¶ 6, 9, 10, 14, 15 (Strasbourg, Dec. 15, 2015), available at
https://webcache.googleusercontent.com/search?q=cache:XXMmZllsyAJ:https://rm.coe.int/1680698462+&cd=1&hl=en&ct=clnk&gl=us [https://perma.cc/W2D7B3XG]. Also noted were that some countries afforded more space of 7.5–9.5 square meters (or about 80–
102 square feet). Id. ¶ 12. Further, a “desirable standard” for multiple-occupancy cells would be at least
10 square meters for two people plus a “sanitary annexe.” Id. ¶ 16.
In terms of enforcement, the European Court of Human Rights has a long list of cases against many
countries found to be in violations of individuals’ rights not to be subjected to “inhuman or degrading
treatment,” as provided by Article 3 of the European Convention on Human Rights. A recent decision

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Rhodes is foundational to the circumscription of the Eighth
Amendment, and Rhodes is likewise the key to the expansive use of
incarceration. By declining to enforce rules reflecting architectural,
correctional, and health guidelines about the space individuals need, the
opinion enabled states to prosecute more people without internalizing the
costs of confinement through providing appropriate physical facilities. The
individuals who were packed in and the communities from which they were
taken bore the costs instead. A massive number of people in detention was a
harm that had attracted widespread concern before COVID-19, and since the
pandemic, the injuries—disproportionately borne by people of color—have
become all the more vivid.
1. Expanding the Capacity for and the Reliance on Isolation
Before delving into more of the legal principles judges crafted to govern
in-prison punishments, we need to sketch the parameters and impact of the
contemporary uses of solitary confinement, which can be found throughout
the United States. As discussed at the outset, more than 60,000 people were,
as of 2017, in isolation and more than 3,700 people had been there for three
years or longer.
The use of solitary confinement goes back centuries. In nineteenthcentury America, its virtues were extolled by officials who ran facilities in
Pennsylvania and upstate New York, where “cellular” housing put people
into deep isolation that proponents thought would lead to revelation and
redemption.110 But within short order, the harms from deprivation of human
contact became evident, and the generic deployment of silence and solitude
was rejected. In the century that followed, the social science disciplines
emerged including criminology and penology, which led to the
professionalization of corrections. Newly minted experts embraced the
metaphor of “disease” for crime, as they commended individualization,
classification, and indeterminate sentences to provide “cures” through work,
education, and religion.
Nonetheless, solitary confinement remained, no longer as a mode for
redemption but as a sanction. The rationales for placement varied. Some
involved prisoners having less than 3 square meters (32.3 square feet) to 4 square meters (43.1 square
feet) and a lack of privacy when using toilets. See J.M.B. & Others v. France, No. 9671/15 Eur. Ct. H.R.,
at 3 (Jan. 30, 2020), available at http://hudoc.echr.coe.int/eng?i=002-12702 [https://perma.cc/R867PBG5]; Factsheet, Detention Conditions and Treatment of Prisoners, EUR. COURT OF HUM. RTS.
(Feb. 2020), https://www.echr.coe.int/Documents/FS_Detention_conditions_ENG.pdf [https://perma.cc
/QP35-6LYT].
110
See Ashley T. Rubin & Keramet Reiter, Continuity in the Face of Penal Innovation: Revisiting
the History of American Solitary Confinement, 43 LAW & SOC. INQUIRY 1604, 1605, 1613–18 (2018).

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NORTHWESTERN UNIVERSITY LAW REVIEW

statutes authorized solitary confinement as part of the prison sentence.111 In
addition, prison officials used solitary confinement as a punishment for inprison behavior and as a mode of control for individuals perceived to be
difficult. Further, prison officials explained solitary confinement as a form
of protection to shield individuals from within-prison dangers.
When prosecutorial and policing efforts became more intensive and
prison populations expanded in the 1980s, so did the use of solitary
confinement, both within prisons and through building Supermax facilities
specially designed to impose profound isolation on people.112 Thirty years of
data from Kansas provide one exemplar. Before that state expanded its
prisons in the 1970s, 13% of its prisoners spent thirty days or more in
solitary.113 Between 1987 and 1992, more than 40% had, with even higher
percentages in the subpopulations of people of color, who also were held in
isolation for longer periods of time.114 Evidence of the widespread
contemporary use of solitary confinement comes from reports coauthored by
the Association of State Correctional Administrators (ASCA)115 and The
Arthur Liman Center for Public Interest Law at Yale Law School. These
monographs provide nationwide data on what correctional officials term
“restrictive housing”—separating prisoners from the general population
based on a variety of rationales, including protection and punishment.
The first report, Administrative Segregation, Degrees of Isolation, and
Incarceration, published in 2013, reviewed policies from forty-seven
jurisdictions. This meta-analysis concluded that the criteria for placement in
isolation were broad, and prison officers at many levels had a great deal of
discretion to identify individuals as a “threat” to the “orderly operation of the
institution.”116 As a result, putting a person into segregation was relatively

111

Id. at. 1619–21. One example comes from a 1913 Nebraska statute, which provided for a
“[j]udgement to fix term of imprisonment and period of solitary confinement.” NEB. REV. STAT. § 9140565 (1913).
112
Rubin & Reiter, supra note 110, at 1622–25. See generally KERAMET REITER, 23/7: PELICAN
BAY PRISON AND THE RISE OF LONG-TERM SOLITARY CONFINEMENT (2016).
113
Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, CRIM. JUST.
POL’Y REV. (Dec. 29, 2019), https://journals.sagepub.com/doi/10.1177/0887403419895315
[https://perma.cc/K9BE-S4EK].
114
Id.
115
ASCA changed its name in 2019 to the Correctional Leaders Association (CLA). See CORR.
LEADERS ASS’N, https://www.asca.net/ [https://perma.cc/2V3E-STNK].
116
See HOPE METCALF, JAMELIA MORGAN, SAMUEL OLIKER‐FRIEDLAND, JUDITH RESNIK, JULIA
SPIEGEL, HARAN TAE, ALYSSA WORK & BRIAN HOLBROOK, ADMINISTRATIVE SEGREGATION, DEGREES
OF ISOLATION, AND INCARCERATION: A NATIONAL OVERVIEW OF STATE AND FEDERAL CORRECTIONAL
POLICIES 5–8 (2013). Policies included in the analysis were Federal Bureau of Prisons, 28 C.F.R.

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easy. In contrast, few policies at the time focused on how individuals could
be released and the obligations of prison staff to reduce degrees of isolation.
The next goal was to learn the impact of such rules by finding out how
many people were held for what period of time. ASCA/Liman sent detailed
surveys to the directors of the prison systems of the fifty states, the District
of Columbia, and the Federal Bureau of Prisons (FBOP), as well as some
large jail systems.117 Given the many terms for solitary confinement,
ASCA/Liman provided a definition by seeking to learn how many people
were held inside cells for an average of twenty-two hours or more per day
for more than fifteen continuous days.118
Based on self-reported data collected from thirty-four jurisdictions,
then housing about three-quarters of the national prison population, the 2015
report, Time-in-Cell, estimated that 80,000 to 100,000 prisoners of the 1.5
million incarcerated people were held in solitary confinement.119 The 2016
report, Aiming to Reduce Time-in-Cell, identified almost 68,000 people held
in isolation.120
The 2018 report relied on submissions from prison systems from the
fall of 2017. As reflected in Figure 1, below, the forty-three prison systems
responding held 80.6% of the U.S. prison population and reported that
49,197 individuals—4.5% of the people in their custody—were in restrictive
housing.121 Across all the reporting jurisdictions, the median percentage of
the population held in restrictive housing was 4.2%; the average was 4.6%.122
The percentage of prisoners in restrictive housing ranged from under 1% to
19%.123 Extrapolating from these numbers to include jurisdictions that did
not provide data, ASCA/Liman estimated that some 61,000 individuals were

§ 541.21 (2012), CAL. CODE REGS. tit. 15, § 3335(a), FLA. ADMIN. CODE r. 33‐602.220(c)(3)(g), and
NEB. ADMIN. REG. 201.05(V)(A). Id.
117
ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, at 153. An example of
the 2017–2018 survey can be found in Appendix A of that report.
118
Id. at 8 n.20. The definition of restrictive housing used in the ASCA/Liman surveys varied. In
2014, the focus was on thirty days; thereafter, the survey defined restrictive housing as “separating
prisoners from the general population and holding them in their cells for 22 hours per day or more for 15
or more continuous days.” Id. at 8 (internal quotation marks omitted). In the 2018 report and the 2020
report (forthcoming, as of this writing), the definition continued to rely on the metric of fifteen days or
more but used the term “an average of 22 hours” in cell rather than measuring each day of twenty-two
hours in a cell. Id. Based on the responses, the questions were refined to enable more accurate information.
119
ASCA/LIMAN 2014 NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION, supra note 11, at
10.
120
ASCA/LIMAN 2016 AIMING TO REDUCE TIME-IN-CELL, supra note 11, at 20.
121
ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, at 10, 12 tbl.1, 13 tbl.1.
122
Id. at 11.
123
Id. at 12 tbl.1, 13 tbl.1.

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in isolation in prisons in the fall of 2017.124 Below, we have reproduced some
of the figures that summarize aspects of the survey data.
FIGURE 1: NUMBER AND PERCENTAGE OF PRISON POPULATION IN RESTRICTIVE HOUSING AS OF
THE FALL OF 2017 (N=43)125
Total in Custody

1,087,671

Total in Restrictive Housing

49,197 (4.5%)

Range

0.1% to 19%

Median

4.2%

Average

4.6%

One data point collected in the surveys is the number of people held in
isolation, and another is the length of time spent there. Getting that
information is difficult, in part, because not all prison systems have tracked
or published that information. As Figure 2 below reflects, thirty-six
jurisdictions responded in 2017 to questions about duration and reported that
most people were held in segregation for a year or less. Twenty-five
jurisdictions counted more than 3,700 individuals who were held for more
than three years. Almost 2,000 of those individuals had been in isolation for
more than six years.

124
125

Id. at 10.
Id. at 11, 12 tbl.1, 13 tbl.1.

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9,345
(22.8%)

12,968
(31.6%)

Punishment in Prison

FIGURE 2: PRISONERS IN RESTRICTIVE HOUSING IN 2016 BY LENGTH OF TIME (N=36)126

14000
12000
10000
8000
6,515
(15.9%)
3,972
(9.7%)
1,950
(4.7%)

[J

6000
4,540
(11.1%)
1,771
(4.3%)

[J

4000
2000

II]

126
127

The original chart appears in id. at 14 fig.3 (reproduced with the permission of the authors).
Id. at 17.

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79

Demographics of the population held in solitary has been another
subject of inquiry. The surveys have sought to understand the relevance of
gender, race and ethnicity, and age of individuals held in solitary
confinement. As Figure 3 shows, men were much more likely than women
to be in solitary confinement.127 Figure 4 details that Black men comprised a
greater percentage of the restrictive housing population than of the total
custodial population. Figure 5 reflects that Black women were yet a larger
percentage of the restrictive housing population than of the general
population.

0

II]

Fifteen
One up to Three up to Six Months One up to Three up to Six Years
Days up to
Three
Six Months up to One Three Years Six Years
Plus
One Month Months
Year

I

I
I
----

NORTHWESTERN UNIVERSITY LAW REVIEW
FIGURE 3: PERCENT OF TOTAL POPULATION IN RESTRICTIVE HOUSING BY GENDER128

5%
4.6%
4%

3%

2%
1.2%

1%

0%
Male (n=34)

Female (n=32)

FIGURE 4: RACIAL AND ETHNIC COMPOSITION OF MALE PRISONERS IN TOTAL CUSTODIAL
POPULATION AND IN RESTRICTIVE HOUSING POPULATION (N=33)129

50%
40%

46.1%
42.5%
37.8%
31.9%

30%
20%

18.7%
17.2%

10%

I I _.. . . _ _
0.5% 0.6%

0%
White
■%

128
129

Black

Hispanic

Asian

of Restrictive Housing Pop.

■%

2.1% 1.4%

__

0.1% 0.1% 0.7% 0.5%

Native
Native
American Hawaiian

Other

of Total Custodial Pop.

The original chart appears in id. at 17 fig.4 (reproduced with the permission of the authors).
The original chart appears in id. at 23 fig.9 (reproduced with the permission of the authors).

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FIGURE 5: RACIAL AND ETHNIC COMPOSITION OF FEMALE PRISONERS IN TOTAL CUSTODIAL
POPULATION AND IN RESTRICTIVE HOUSING POPULATION (N=32)130

60%
50%

58.7%

44.8%
39.8%

40%
30%

23.1%

20%

14.1%
11.6%

10%

11 ___ -0.1% 0.8%

0%
White
■%

Black

Hispanic

Asian

of Restrictive Housing Pop.

■

2.7% 2.7%

0.0% 0.1% 1.0% 0.6%

Native
Native
American Hawaiian

Other

% of Total Custodial Pop.

A substantial number of people, whom prison systems categorize
under their varying definitions of “serious mental illness,”131 were, as of
2017, held in restrictive housing. Given the range in scope and detail, a
person could be classified as seriously mentally ill in one jurisdiction but
not in another. Thus, rather than scaling the information, ASCA/Liman
130

The original chart appears in id. at 23 fig.10 (reproduced with the permission of the authors).
The report included an appendix providing definitions from all the responding jurisdictions. For
example, Alabama defined “Serious Mental Illness” (SMI) to be “[p]sychotic disorders, bipolar disorders,
and major depressive disorders; any diagnosed mental disorder currently associated with serious
impairment in psychological, cognitive, or behavioral function that substantially interferes with the
person’s ability to meet the demands of living and requires an individualized treatment plan by a qualified
mental health provider.” Alaska reported that “Mental Illness is an organic mental or emotional
impairment that reduces an individual’s exercise of conscious control over the individual’s actions and
reduces an individual’s ability to perceive reality, to reason or understand.” Arizona responded that SMI
was “ADC Mental Health Technical Manual, 06/18/2015 Defined: Those who according to a licensed
mental health clinician or provider possess: 1) A qualifying mental health diagnosis as indicated on the
SMI determination form, and 2) A severe functional impairment directly relating to their mental illness.”
In Arkansas, the definition was: “Serious Mental Illness-Psychotic, Bipolar and Major Depressive
Disorders and any other diagnosed mental disorder (excluding substance use disorders) associated with
serious behavioral impairment as evidenced by examples of acute decompensation, self-injurious
behaviors, and mental health emergencies that require an individualized treatment plan by a qualified
mental health professional.” Id. at 184. Definitions from the other responding states can be found at id. at
184–95.
131

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provided tables by jurisdiction and tallied the numbers provided. As of the
fall of 2017, more than 4,200 people with serious mental illness were in
restrictive housing.

FIGURE 6: MALE PRISONERS WITH SERIOUS MENTAL ILLNESS (SMI, VARIOUSLY DEFINED)132 IN
RESTRICTIVE HOUSING (RH) (N=33)
Total
Custodial
Pop.

Custodial
Pop. with
SMI

% Custodial
Pop.

Pop. with
SMI

% with SMI
in RH

Alabama

20,282

1,064

5.30%

248

23.30%

Arizona

38,117

1,559

4.10%

284

18.20%

Arkansas

14,561

397

2.70%

21

5.30%

Colorado

16,624

1,234

7.40%

1

0.10%

Connecticut

13,182

28

0.20%

3

10.70%

Delaware

4,100

354

8.60%

3

0.90%

Illinois

39,767

3,998

10.10%

356

8.90%

Indiana

23,847

4,762

20.00%

567

11.90%

Iowa

7,578

1,009

13.30%

24

2.40%

Kansas

8,999

2,677

29.70%

43

1.61%

Kentucky

20,427

386

1.90%

66

17.10%

Louisiana

32,953

2,113

6.40%

417

19.70%

Massachusetts

8,459

608

7.20%

10

1.60%

Mississippi

12,038

61

0.50%

10

16.40%

Missouri

29,675

3,768

12.70%

703

18.70%

Nebraska

4,762

192

4.00%

50

26%

New Jersey

18,594

208

1.10%

1

0.50%

New Mexico

6,306

36

0.60%

23

63.90%

New York

48,407

2,420

5.00%

47

1.90%

North Carolina

34,326

385

1.10%

27

7.00%

North Dakota

1,606

345

21.50%

5

1.50%

132

The original table appears in id. at 48 tbl.15 (reproduced with the permission of the authors).

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Ohio

45,796

3,477

7.60%

150

4.30%

Oklahoma

23,816

7,011

29.40%

615

8.80%

Oregon

13,302

812

6.10%

112

13.80%

Pennsylvania

44,300

3,691

8.30%

0

0.00%

Rhode Island

2,722

140

5.10%

16

11.40%

South Dakota

3,402

111

3.30%

12

10.80%

Tennessee

133

Texas134

20,214

98

133,229

1,440

1.10%

0

0.00%

Utah

5,822

199

3.40%

11

5.50%

Washington

15,744

1,628

10.30%

99

6.10%

Wisconsin

21,050

1,654

7.90%

90

5.40%

Wyoming

1,894

204

10.80%

41

20.10%

47,971

6.1%
(median)

4,153

7.9%
(median)

Total

735,901

FIGURE 7: FEMALE PRISONERS WITH SERIOUS MENTAL ILLNESS (SMI, VARIOUSLY DEFINED) IN
RESTRICTIVE HOUSING (RH) (N = 31)135
Total
Custodial
Pop.

Custodial
Pop. with
SMI

% Custodial
Pop. with
SMI

Pop. with
SMI

% Pop. with
SMI

Alabama

1,310

86

6.60%

1

1.20%

Arizona

4,029

313

7.80%

14

4.50%

Arkansas

1,344

2

0.10%

0

0.00%

Colorado

1,673

497

29.70%

0

0.00%

Connecticut

955

8

0.80%

0

0.00%

Delaware

233

64

27.50%

0

0.00%

133
The ASCA/Liman 2018 report, Reforming Restrictive Housing, indicated that “Tennessee
reported 505 prisoners with serious mental illness in its total custodial population. This number is not
included in [the table] because it is not known how many of the 505 prisoners are female and how many
are male.” Id. at 116 n.79.
134
Texas had informed the researchers that it did “not define ‘serious mental illness.’” Its numbers
reflect prisoners who were “on an inpatient mental health caseload.” Id. at 116 n.80.
135
The original table appears in id. at 49 tbl.16 (reproduced with the permission of the authors).

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Illinois

2,410

619

25.70%

24

3.90%

Indiana

2,470

954

38.60%

36

3.80%

Iowa

705

167

23.70%

3

1.80%

Kansas

897

525

58.50%

0

0.00%

3,139

163

5.19%

8

4.90%

588

46

7.82%

0

0.00%

Missouri

3,529

1,102

31.20%

48

4.40%

Nebraska

416

71

17.10%

4

5.60%

New Jersey

774

24

3.10%

0

0.00%

New Mexico

741

9

1.20%

0

0.00%

New York

2,357

188

8.00%

3

1.60%

North Carolina

2,933

80

2.70%

2

2.50%

North Dakota

224

37

16.50%

0

0.00%

Ohio

4,158

1,113

26.80%

10

0.90%

Oklahoma

3,079

2,086

67.70%

14

0.70%

Oregon

1,272

168

13.20%

11

6.60%

Pennsylvania

2,620

529

20.20%

0

0.00%

Rhode Island

130

9

6.90%

0

0.00%

South Dakota

525

40

7.60%

1

2.50%

Kentucky
Massachusetts

Tennessee

1,946

Texas

12,180

84

0.70%

0

0.00%

Utah

471

21

4.50%

0

0.00%

Washington

1,302

193

14.80%

0

0.00%

Wisconsin

1,539

414

26.90%

19

4.60%

Wyoming

260

64

24.60%

2

3.10%

60,209

9,676

13.20%
(median)

201

0.80%
(median)

Total

1

The 2018 report compared the responses of the forty prison systems that
answered the ASCA/Liman surveys in both 2015 and 2017. During that time,
several prison systems initiated policy reforms to limit the use of solitary

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confinement.136 The jurisdictions’ self-reported data on the numbers may be
evidence of the impact of these policy reforms, as the total number was down
somewhat even though the changes were not uniform across the
jurisdictions.
In those forty systems, 56,000 people had been placed in restrictive
housing in 2015. The number of prisoners reported in restrictive housing
decreased in 2017 by almost 9,500 to 47,000 people.137 The percentage of
individuals in isolation decreased from 5.0% to 4.4%.138 In more than two
dozen states, the numbers of people in restrictive housing decreased.139 In
eleven states, the numbers went up.140 In thirty-one jurisdictions responding
to questions about length of time in both 2015 and 2017, the number of
individuals in restrictive housing for three months or less increased.141 The
number of people in isolation for longer than three months decreased. The
decreases were greatest for time periods longer than six months. 142
2. Experiencing Isolation
The efforts to document and quantify the ways in which solitary
confinement is used by prison staff are paralleled by efforts to assess the
effects on individuals held for long periods of time in isolation. In some
ways, such inquiries seem unnecessary because humans are “social beings,”
136
See ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, at 67–81; ASS’N OF
STATE CORR. ADM’RS & THE ARTHUR LIMAN CTR. FOR PUB. INTEREST LAW AT YALE LAW SCH.,
WORKING TO LIMIT RESTRICTIVE HOUSING: EFFORTS IN FOUR JURISDICTIONS TO MAKE CHANGES
(2018), https://law.yale.edu/sites/default/files/documents/pdf/Liman/asca_liman_2018_workingtolimit.p
df [https://perma.cc/J4VV-VPN6].
137
ASCA/LIMAN 2018 REFORMING RESTRICTIVE HOUSING, supra note 11, at 95.
138
Id.
139
Id. at 151 n.427 (“Those 28 jurisdictions, starting with the largest decrease in percentage points,
were Utah (from 14.0% to 4.7%); Delaware (from 8.8% to 0.8%); New Mexico (from 9.0% to 4.2%);
Nebraska (from 11.0% to 6.3%); Tennessee (from 8.8% to 5.3%); New York (from 8.5% to 5.3%); Illinois
(from 4.8% to 2.2%); North Dakota (from 3.0% to 0.4%); Wyoming (from 6.2% to 3.8%); Alabama (from
5.7% to 4.0%); New Jersey (from 6.7% to 5.2%); South Carolina (from 5.1% to 3.7%); Kansas (from
5.9% to 4.6%); Colorado (from 1.2% to 0.1%); Maryland (from 7.5% to 6.5%); Georgia (from 6.8% to
5.8%); North Carolina (from 4.0% to 3.0%); Texas (from 3.9% to 2.9%); Iowa (from 3.0% to 2.0%);
Kentucky (from 4.2% to 3.4%); Michigan (from 3.1% to 2.3%); Idaho (from 5.0% to 4.3%); South Dakota
(from 3.0% to 2.3%); Oklahoma (from 5.6% to 5.1%); Wisconsin (from 3.7% to 3.2%); Pennsylvania
(from 3.4% to 3.2%); Ohio (from 2.7% to 2.6%); and Hawaii (from 0.5% to 0.4%).”).
140
Id. at 6; see also id. at 151 n.429 (“Those 12 jurisdictions, starting with the largest increase in
percentage points, were Louisiana (from 14.5% to 19.0%); Mississippi (from 1.0% to 4.1%); Montana
(from 3.5% to 6.4%); Missouri (from 6.3% to 9.0%); Massachusetts (from 2.3% to 4.9%); Oregon (from
4.3% to 6.4%); Connecticut (from 0.8% to 2.3%); Alaska (from (7.2% to 8.6%); Indiana (from 5.9% to
6.6%); Washington (from 1.7% to 2.3%); Arizona (from 6.0% to 6.5%); and FBOP (from 4.7% to
5.2%).”).
141
Id. at 6.
142
Id. at 100.

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and solitary confinement is so obviously harmful.143 Indeed, the injuries from
a lack of meaningful human interaction have been apparent for hundreds of
years. Seeing how disabling solitary was, prison officials in the nineteenth
century abandoned the forms of that regime that had been used in Auburn,
New York and in the Eastern Penitentiary in Pennsylvania.144 Moreover,
individuals subjected to solitary have chronicled their profound suffering,
including disorientation, a loss of depth perception, and thoughts of
suicide.145
The then-nascent correctional establishment recognized solitary’s
harms, and those views made their way in 1890 into U.S. Supreme Court
case law. The Court discussed the oppressiveness of isolation when holding
that Colorado’s solitary confinement of James Medley violated the Ex Post
Facto Clause because the statute mandating solitary confinement for capital
offenders had been enacted after Medley’s conviction of a capital offense.146
In recounting the “very interesting history” of solitary confinement, the
Court borrowed from an encyclopedia article citing punishment theorists
Cesare Beccaria and Jeremy Bentham and the work of the International
Penitentiary Commission (founded in 1872).147 The Court wrote that
isolation put some prisoners into a “semi-fatuous” condition and rendered
others “insane.”148 More than a century later, other Justices acknowledged
that long-term isolation could cause “madness.”149
Given that intuitive revulsion at the deprivations of “meaningful human
contact and social interaction, the enforced idleness and inactivity, [and] the
143
See Jules Lobel & Peter Scharff Smith, Solitary Confinement—From Extreme Isolation to Prison
Reform, in SOLITARY CONFINEMENT: EFFECTS, PRACTICES, AND PATHWAYS TOWARD REFORM 1, 1–2
(Jules Lobel & Peter Scharff Smith eds., 2020) [hereinafter SOLITARY CONFINEMENT].
144
Peter Scharff Smith, Solitary Confinement—Effects and Practices from the Nineteenth Century
Until Today, in SOLITARY CONFINEMENT, supra note 143, at 33–37.
145
See, e.g., WOODFOX, supra note 14; Betts, supra note 14; Robert King, Dolores Canales, Jack
Morris & Armondo Sosa, Sharing Experiences of Solitary Confinement—Prisoners and Staff, in
SOLITARY CONFINEMENT, supra note 143, at 243–245. King reported on how, during his twenty-nine
years in solitary confinement in Angola, Louisiana, he had trouble with depth perception and that,
thereafter, he continued to struggle with “differentiating long distances and special relationships.” Id. at
244; see also Huda Akil, The Brain in Isolation: A Neuroscientist’s Perspective on Solitary Confinement,
in SOLITARY CONFINEMENT, supra note 143, at 204–05.
146
In re Medley, 134 U.S. 160 (1890).
147
Id. at 167. The Court cited (with an incorrect volume number) to Prison and Prison Discipline,
in XIV THE AMERICAN CYCLOPAEDIA: A POPULAR DICTIONARY OF GENERAL KNOWLEDGE 6–16
(George Ripley & Charles A. Dana eds., 1875). That article provided accounts of the history and current
state of modern “[p]enitentiary science.” Id. at 6–7.
148
Medley, 134 U.S. at 168.
149
Davis v. Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring); see also infra note 235
(discussing Justice Breyer’s analyses in Glossip v. Gross and subsequent cases).

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oppressive security and surveillance,”150 one question is why courts have not
banned the practice, when, in the 1960s and 1970s, they outlawed whipping,
strip cells, and radical food deprivations. Partial answers come from how the
Court’s own doctrine contributed to arguments from the correctional
establishment about their need to have solitary confinement as a punishment.
Hyper-isolation traveled with hyper-density, which the Supreme Court
licensed in 1981 in Rhodes v. Chapman. The percentage of people held in
solitary confinement increased with prison expansion and overcrowding. 151
Thereafter, the Supreme Court relied on the practices of prison officials
as evidence of what was “normal” in prison and as a metric of what was
legal. Justices acceded to prison officials’ arguments about the need for
discretion to use a range of “management tools,” including transfers to
restrictive forms of confinement. Furthermore, judicial toleration of solitary
confinement relates to other prison practices which courts have tolerated. As
we discussed, while upholding bans on filth and violence for all segments of
prison populations, appellate courts rejected efforts by lower courts to stop
the enforced idleness in general populations.152 Solitary confinement is the
extreme example of how prisons deplete individuals by failing to provide
meaningful social interactions and activities.153
In short, as of this writing, more than lived experiences and human
insights are needed for constitutional law to reject solitary confinement
outright. Therefore, before turning to how courts in the last decades have
responded to solitary confinement, we provide a brief synopsis of some of
the research on isolation’s destructiveness.
Many social scientists and trained health professionals have formulated
research paradigms, interviewed individuals in solitary, and analyzed
correctional data in an effort to determine what isolated confinement means
for the people who experience it and the institutions that impose it. Some
studies have also explored whether solitary confinement has the utilities that
its proponents have claimed: reducing violence among prisoners and staff

150
Craig Haney, Solitary Confinement, Loneliness, and Psychological Harm, in SOLITARY
CONFINEMENT, supra note 143, at 129–30 [hereinafter Haney, Loneliness].
151
Sakoda & Simes, supra note 113.
152
One example comes from Judge Johnson’s efforts to do so, which were limited by the Fifth
Circuit. See Pugh v. Locke, 406 F. Supp. 318, 323–26 (M.D. Ala. 1976), aff’d in part, rev’d in part sub
nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. granted in part, judgment rev’d in part
sub nom. Alabama v. Pugh, 438 U.S. 781 (1978).
153
See generally Judith Resnik, Not Isolating Isolation, in SOLITARY CONFINEMENT, supra note 143,
at 89–115.

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and enhancing safety.154 This avenue of research is salient for those interested
in “evidence-based” practices and for litigation in which governing doctrine
requires courts to consider whether punishment serves legitimate
penological purposes.
Identifying the specific effects of solitary confinement is made complex
given the myriad ways in which prisons constrain individual autonomy and
the challenges people encounter before incarceration.155 The hurdles for
scientists include cataloguing, distinguishing, and measuring variables such
as different degrees and durations of isolation, the level of staffing and the
skills of correctional officers, health resources, activities made available and
used, budgets, the opportunities and conditions for those not in solitary
confinement, cell design, the facility itself, and the density and kinds of
individuals housed within both segregated and general populations.
Moreover, even as the people entering prison are diverse, they share
demographics and documented needs. Compared to the population at large,
a disproportionate number are people of color. Many people enter prison
with health problems, limited income, and low levels of education. For
example, one profile of some 230,000 people released from North Carolina’s
prisons between 2000 and 2015 identified almost 70% who had substance
abuse problems, at least 12% in need of mental health support, and 65% who
had not completed high school.156 In a 2020 encyclopedic overview focused
on incarcerated women, the U.S. Civil Rights Commission found they were
likely to have suffered many forms of trauma and more likely than men to
be the primary caregivers for their households.157
Between the range of people and of situations, a few commentators
argue that the “purported negative physiological and psychological effects”

154
For some researchers, the answer is clearly no. See, e.g., Homer Venters, Mythbusting Solitary
Confinement in Jail, in SOLITARY CONFINEMENT, supra note 143, at 178–79 [hereinafter Venters,
Mythbusting].
155
An analysis of the research challenges comes from Brie Williams & Cyrus Ahalt, First Do No
Harm: Applying the Harms-to-Benefits Patient Safety Framework to Solitary Confinement, in SOLITARY
CONFINEMENT, supra note 143, at 158 [hereinafter Williams & Ahalt, First Do No Harm].
156
Lauren Brinkley-Rubinstein, Josie Sivaraman, David L. Rosen, David H. Cloud, Gary Junker,
Scott Proescholdbell, Meghan E. Shanahan & Shabbar I. Ranapurwala, Association of Restrictive
Housing During Incarceration with Mortality After Release, JAMA NETWORK OPEN, Oct. 2019, at 4,
available
at
https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2752350
[https://perma.cc/LLA9-LJDF] [hereinafter Brinkley-Rubinstein et al., Mortality After Release].
157
See U.S. COMM’N ON CIVIL RIGHTS, WOMEN IN PRISON: SEEKING JUSTICE BEHIND BARS 3–4
(2020), https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf [https://perma.cc/G26J-YQJN].

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have been overstated.158 In the main, however, most experts in this arena
agree that deprivations of sociability have brutal effects.159 One summary
concluded that solitary confinement caused “a wide range of harmful
psychological effects, including increases in negative attitudes and affect,
insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations,
cognitive dysfunction, hallucinations, loss of control, aggression, rage,
paranoia, hopelessness, lethargy, depression, emotional breakdowns, selfmutilation, and suicidal impulses.”160 Moreover, to adjust to long-term
isolation, individuals developed what would otherwise be pathological
behaviors, making a return to human sociability difficult.161 This form of
“social death” resulted in grief and loneliness.162
One focus of these studies has been the impact of sensory deprivation,
when an individual is limited to a small space for long periods of time and
given no variation of experiences.163 Another area of study is on the effects
of banning human interaction and touch.164 A 1983 study found that
profoundly isolated prisoners became hypersensitive to external stimuli and
developed difficulties with concentration and memory.165 Some also
experienced visual and aural hallucinations.166 Later research, based on self-

158
See Robert D. Morgan, Ryan M. Labrecque, Paul Gendreau, Taylor R. Ramler & Brieann
Olafsson, Questioning Solitary Confinement: Is Administrative Segregation as Bad as Alleged?,
CORRECTIONS TODAY, Sept./Oct. 2017, at 18, 19.
159
See Manfred Nowak (Special Rapporteur of the Human Rights Council), Interim Rep. on Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/63/175, at 22 (July 28,
2008); Soledad Prison Goes on Trial Tomorrow, supra note 39, at 4.
160
Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of
Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE 477, 530 (1997); see also
Haney, Loneliness, supra note 150, at 132–33; Craig Haney, The Science of Solitary: Expanding the
Harmfulness Narrative, 115 NW. U. L. REV. 211 (2020).
161
Haney, Loneliness, supra note 150, at 138–39.
162
Id. at 140.
163
Craig Haney, Restricting the Use of Solitary Confinement, 1 ANN. REV. CRIMINOLOGY 285, 294
(2018) [hereinafter Haney, Restricting]; see also Reassessing Solitary Confinement: The Human Rights,
Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on the Constitution, Civil Rights
& Human Rights of the S. Comm. on the Judiciary, 112th Cong. 75 (2012) (statement of Dr. Craig Haney).
164
Haney, Restricting, supra note 163, at 297–98; see also Craig Haney, The Psychological Effects
of Solitary Confinement: A Systematic Critique, 47 CRIME & JUST. 365, 371–75 (2018) [hereinafter
Haney, Psychological Effects].
165
Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY
1450, 1452–53 (1983) [hereinafter Grassian, Psychopathological].
166
Id. at 1452.

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reports and on interviews, found similar effects.167 This body of work argues
that an “isolation syndrome” can be identified.168
Another effort analyzed data from 2004 of mentally ill prisoners held
in solitary confinement in New York prisons. That research reported that
more than “half (53%) of the inmates with mental illness . . . . interviewed
in disciplinary lockdown reported previous suicide attempts” and “40%
reported committing an act of self-harm during their current
incarceration.”169 An observational study of individuals detained in New
York City’s jails between 2010 and 2013 found that “acts of self-harm were
strongly associated with assignment of inmates to solitary confinement.
Inmates punished by solitary confinement were approximately 6.9 times as
likely to commit acts of self-harm.”170 Moreover, the populations exposed to
solitary confinement in this analysis were disproportionately people of color,
as has been evident in other studies as well.171
To measure physical effects, one study of individuals held in isolation
in Pelican Bay, California compared 283 people in general population with
343 people in the isolation of the “special housing unit” (SHU), as well as
315 people held for at least ten years in general population and 246
individuals in the SHU.172 After controlling for age and other health
conditions, the study concluded that hypertension was more prevalent in the

167
Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J.L. & POL’Y 325,
347–54 (2006) [hereinafter Grassian, Psychiatric]; Haney, Psychological Effects, supra note 164, at 371–
74.
168
Grassian, Psychopathological, supra note 165, at 1453. One summary, presented in a 2016
amicus filing to the U.S. Supreme Court, came from health care experts. See Brief of Amici Curiae
Professors & Practitioners of Psychiatry & Psychology in Support of Petitioner, Prieto v. Clarke, 780 F.3d
245 (4th Cir. 2015), cert. denied, 136 S. Ct. 319 (2015) (No. 15-31). These experts argued that “while
mentally ill prisoners are particularly susceptible to these harms, solitary confinement affects even
psychologically resilient individuals,” putting all prisoners “at significant risk of severe psychological
harm.” Id. at 6.
169
CORR. ASS’N OF N.Y., MENTAL HEALTH IN THE HOUSE OF CORRECTIONS: A STUDY OF MENTAL
HEALTH
CARE
IN
NEW
YORK
STATE
PRISONS
3,
59
(2004),
https://static1.squarespace.com/static/5b2c07e2a9e02851fb387477/t/5c4f6d9642bfc11a842e8e97/15487
09275093/2004+Mental+Healthcare+in+New+Yorks+Prisons.pdf [https://perma.cc/Q8A7-K8E8].
170
Fatos Kaba, Andrea Lewis, Sarah Glowa-Kollisch, James Hadler, David Lee, Howard Alper,
Daniel Selling, Ross MacDonald, Angela Solimo, Amanda Parsons & Homer Venters, Solitary
Confinement and Risk of Self-Harm Among Jail Inmates, 104 AM. J. PUB. HEALTH 442, 445 (2014). That
study had considered 244,600 incarcerations, of which more than 7% had been exposed to solitary
confinement. See Venters, Mythbusting, supra note 154, at 173–75.
171
Id. at 176–77; see also Sakoda & Simes, supra note 113; supra note 11 and accompanying text.
172
See Louise Hawkley, Social Isolation, Loneliness, and Health, in SOLITARY CONFINEMENT,
supra note 143, at 190.

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SHU population, and by a significant margin.173 SHU prisoners were
therefore “set on a trajectory toward early onset cardiovascular disease and
mortality.”174
These results reflect the relationship between social bonds, activities,
and health.175 Stress, as well as environments lacking stimulation and natural
light, have been demonstrated to have deleterious health effects.176 By 2020,
health care experts, relying on the U.S. Food and Drug Administration metric
of “harms-to-benefits” for medications and medical devices, concluded that
solitary confinement was “inappropriate for use with humans.” 177 Part of that
analysis drew on research that high rates of solitary confinement did not
predict lower institutional violence.178 Furthermore, prison staff working in
such environments had higher rates of household violence, ill health, and
suicide than other staff.179
Research has also explored what happens to individuals held in solitary
confinement who are later released. One study evaluated people incarcerated
between 2000 and 2015 in North Carolina.180 Individuals who had been
placed in solitary were “24% more likely to die in the first year after
release . . . [and] also 127% more likely to die of an opioid overdose in the
first [two] weeks after release” compared with incarcerated people who had
not been placed in solitary.181
Some researchers have questioned the strength of conclusions that
solitary is debilitating. They point to the variety of variables affecting
173

See id. at 191. In general population, about 18% had hypertension; in the SHU, more than 48%

did. Id.
174

Id. at 196.
See generally Laura Fratiglioni, Stephanie Paillard-Borg & Bengt Winblad, An Active and
Socially Integrated Lifestyle in Late Life Might Protect Against Dementia, 3 LANCET NEUROLOGY 343
(2004); Federica Coppola, The Brain in Solitude: An (Other) Eighth Amendment Challenge to Solitary
Confinement, 6 J.L. & BIOSCIENCES 184, 204–07 (2019) (citing DANIEL SIEGEL, THE DEVELOPING MIND:
HOW RELATIONSHIPS AND THE BRAIN INTERACT TO SHAPE WHO WE ARE 27 (2d ed. 2012)).
176
Akil, supra note 145, at 206–10. Animal studies have provided evidence of the physiological
effects of isolation. See Michael J. Zigmond & Richard Jay Smeyne, Use of Animals to Study the
Neurobiological Effects of Isolation, in SOLITARY CONFINEMENT, supra note 143, at 221–36.
177
Williams & Ahalt, First Do No Harm, supra note 155, at 159, 163.
178
Id. at 164.
179
Id. at 165.
180
Brinkley-Rubinstein et al., Mortality After Release, supra note 156, at 1.
181
Id. at 1. Another recent study of Danish prisoners showed an association between time spent in
solitary confinement and increased recidivism and unemployment after release. See Christopher
Wildeman & Lars Højsgaard Andersen, Long-Term Consequences of Being Placed in Disciplinary
Segregation, 58 CRIMINOLOGY 423 (2020). But this study could not show that isolation caused these
effects, since its analysis did not rule out the possible role of unobserved factors that might differentiate
prisoners who experienced isolation from those who had not. See id. at 449.
175

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incarcerated individuals and the challenges of comparisons. One article that
termed itself a meta-analysis concluded that research had not established that
all individuals were harmed by isolation, and indeed that some were
“unchanged” or improved.182 In response, researchers whose work had been
criticized argued that the article failed to conform to the standards of a metaanalysis because it conflated studies of different kinds and duration.183 That
debate echoes a central theme of this Essay, which is the role that baselines
play. Given the profound alteration of “normal” behavior in solitary
confinement and the many constraints imposed on incarcerated people held
in high-security and other prisons, researchers seeking to identify the effects
in sets of individuals have to determine which subsets of free and detained
people to assess to compare their illness and well-being and that of
individuals in solitary confinement.
III. THE LAW OF SOLITARY CONFINEMENT: EIGHTH AMENDMENT
PROHIBITIONS AND FOURTEENTH AMENDMENT BUFFERS AGAINST
ARBITRARY PLACEMENTS
We turn then to the “law” of solitary confinement, as we begin with
Eighth Amendment rulings and then turn to Fourteenth Amendment law
focused on due process protections. Before delving into the distinct lines of
doctrine, the continuities merit comment. When assessing constitutionality,
Justices created evaluative tools that implicitly or explicitly compare
prisons’ strictures to the free world. The governing frameworks include
whether officials provided the “minimal civilized measure of life’s
necessities,”184 deliberately caused “the wanton and unnecessary infliction of
pain,”185 or imposed an “atypical and significant hardship”186 as distinguished
182
Morgan et al., Questioning Solitary Confinement, supra note 158, at 20; see also Robert D.
Morgan, Paul Gendreau, Paula Smith, Andrew L. Gray, Ryan M. Labrecque, Nina MacLean, Stephanie
A. Van Horn, Angelea D. Bolanos, Ashley B. Batastini & Jeremy F. Mills, Quantitative Syntheses of the
Effects of Administrative Segregation on Inmates’ Well-Being, 22 PSYCH. PUB. POL’Y & L. 439 (2016);
MAUREEN L. O’KEEFE, KELLI J. KLEBE, ALYSHA STUCKER, KRISTIN STURM & WILLIAM LEGGETT, ONE
YEAR LONGITUDINAL STUDY OF THE PSYCHOLOGICAL EFFECTS OF ADMINISTRATIVE SEGREGATION, at
viii–ix (2010), https://www.ncjrs.gov/pdffiles1/nij/grants/232973.pdf [https://perma.cc/9VN3-NAHC].
The O’Keefe group concluded that individuals held in administrative segregation did not deteriorate
compared to a control group of similar prisoners who were not held in segregation. This study analyzed
deterioration via looking at reports by prison clinicians and staff and prisoners of anxiety, cognitive
impairment, depression-hopelessness, hostility–anger control, hypersensitivity, psychosis, somatization,
and withdrawal‐alienation. O’KEEFE ET AL., supra, at ii.
183
See, e.g., Haney, Psychological Effects, supra note 164, at 375–401.
184
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
185
Id.
186
Sandin v. Conner, 515 U.S. 472, 484 (1995).

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from what were within “normal limits,” “ordinary incidents of prison life,”
or “expected” in prisons.187 Other formulations reference the inherent liberty
and dignity of individuals188 and insist on the obligations of social orders to
be decent and respect the dignity of all persons, incarcerated or not.189
Aspects of these tests appear to rely on empirical questions about the
on-the-ground, lived experiences of free and incarcerated people and of the
practices of prison administrators. At times, judges referenced manuals and
standards shaped by professionals to inform their views of what prisons
legally had to provide. But often, judges asserted without explication or
verification that particular practices were “normal” or “ordinary” or
“incident” to incarceration. At some junctures, forms of deprivation struck
judges as grotesque and hence, impermissible, while courts held that other
practices required constitutionally constrained decision-making or were up
to the discretion of prison staff. That mix came to be assimilated into a set of
activities understood to constitute “prison.”
A. On the Merits Impermissible, or Not
1.

Prohibitions Collapse: Condoning Solitary Confinement in the
1970s and 1980s
In 1970, the Honorable Constance Baker Motley, the first Black woman
to sit on the U.S. federal courts,190 held unconstitutional the placement of
Martin Sostre in solitary confinement for more than fifteen days.191 Decades
before the wave of social science research sketched above, Judge Motley
found that, as a matter of fact, lengthy punitive segregation was “physically
harsh, destructive of morale, . . . needlessly degrading, and dangerous to the
maintenance of sanity.”192 She held that, as a matter of law, the prison system
had unconstitutionally retaliated against Sostre for winning recognition of
his constitutional rights to practice his Muslim faith.193
187

Id. at 478, 483, 485.
See Meachum v. Fano, 427 U.S. 215, 233 (1976) (Stevens, J., dissenting, joined by Brennan, J.
and Marshall, J.).
189
See Trop v. Dulles, 356 U.S. 86, 101–03 (1958).
190
Constance Baker Motley: Judiciary’s Unsung Rights Hero, U.S. COURTS (Feb. 20, 2020),
https://www.uscourts.gov/news/2020/02/20/constance-baker-motley-judiciarys-unsung-rights-hero
[https://perma.cc/76QX-2WMB]; see also CONSTANCE BAKER MOTLEY, EQUAL JUSTICE UNDER LAW
(1998).
191
Sostre v. Rockefeller, 312 F. Supp. 863, 889 (S.D.N.Y. 1970), aff’d in part, rev’d in part sub
nom. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), cert. denied sub nom. Sostre v. Oswald,
404 U.S. 1049 (1972), and cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978 (1972).
192
Id. at 868.
193
Id. at 869.
188

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The district court awarded damages and put the fifteen-day cap in place.
(In 2015, international rules on the treatment of prisoners used the same
benchmark and called for prohibiting any isolation beyond that time.194)
Further, Judge Motley concluded that prison officials could return Sostre to
solitary confinement only if they found, after a hearing, that he had
committed serious offenses.195 Given that such placement could result in a
risk of loss of “good time,” a lawyer was also required. Judge Motley
awarded some $13,000 in compensatory and punitive damages to be paid by
the prison officials, whom she found acted in bad faith.196
The Second Circuit agreed that prison officials had unconstitutionally
retaliated but disagreed about the constraints on solitary that Judge Motley
had ordered.197 Describing the conditions in solitary as “harsher” than those
of general population, the en banc ruling called them neither “unendurable
or subhuman or cruel and inhuman in a constitutional sense.”198 Moreover,
“[f]or a federal court . . . to place a punishment beyond the power of a state
to impose on an inmate is a drastic interference with the state’s free political
and administrative processes . . . [even if] to us the choice may seem
unsound or personally repugnant.”199
The Second Circuit was not alone in deferring to prison officials, who
argued that solitary confinement was an important part of their in-prison
disciplinary repertoire. Examples come not only from that era,200 but also in
the decades that followed. Yet a few decisions concluded that particular
conditions of segregation could be unconstitutional. Examples included
filthy, crowded cells201 and long-term solitary confinement.202 On occasion,
194
See G.A. Res. 70/175, United Nations Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules), at 16–17 (Dec. 17, 2015) [hereinafter Nelson Mandela Rules].
195
Sostre, 312 F. Supp. at 889.
196
Id. at 886–87.
197
Sostre v. McGinnis, 442 F.2d 178, 204 (2d Cir. 1971).
198
Id. at 186.
199
Id. at 191.
200
See, e.g., Novak v. Beto, 453 F.2d 661 (5th Cir. 1971); Roberts v. Pepersack, 256 F. Supp. 415,
430–31 (D. Md. 1966).
201
Furtado v. Bishop, 604 F.2d 80, 88 (1st Cir. 1979) (citing Hutto v. Finney, 437 U.S. 678, 685
(1978)).
202
See, e.g., Sinclair v. Henderson, 331 F. Supp. 1123 (E.D. La. 1971). That decision, following the
Fifth Circuit’s remand that the complaint had been improperly dismissed, see 435 F.2d 125 (5th Cir.
1970), involved Billy Sinclair, a well-known prisoner advocate imprisoned in Angola. The district court
held that long-term confinement of death row prisoners in cells for all but fifteen minutes per day without
opportunity for regular outdoor exercise constituted cruel and unusual punishment. Sinclair, 331 F. Supp.
at 1131. A few years later, the Third Circuit also recognized the cognizability of solitary confinement
claims. See Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972). The circuit remanded with instructions to
consider the prisoners’ claims that their confinement in punitive or administrative segregation constituted

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judges found that the penalty of segregation was arbitrary and
disproportionate to the alleged misconduct and violated either the Eighth
Amendment or substantive due process.203
Insight into what could have happened comes from “A Model Act to
Provide for the Protection of Rights of Prisoners,” put forth in 1972 by a
committee of the National Council on Crime and Delinquency. As the
organization’s title suggests, it sought to ameliorate conditions in prisons and
responses to crime in general and did so through a series of standard-setting
publications.204 The subcommittee on the model act included the Director of
the Federal Bureau of Prisons, correctional staff at prisons in Pennsylvania
and Illinois, a state court judge, and academics. Its staff counsel, Sol Rubin,
wrote one of the first casebooks on the law of prisons.205
The group aimed to have legislatures adopt its model act to provide
“minimum standards” to protect prisoners’ rights. The act stated that
prisoners ought to have adequate food, medical care, sanitation, space, and
protection from violence. Prohibited was “inhumane treatment,” including
corporal punishment, and confining prisoners in solitary “for punishment.”206
While the model act did not define solitary, it did call upon the “highest
ranking officer on duty” to be responsible for leaving a person in solitary for
more than an hour and that doctors had to consider placements of more than
two days.207 Critics argued the act served the interests of correctional officials
cruel and unusual punishment because they were not permitted out of their cells and were deprived of
personal belongings and of visits. Id. at 187. The Fourth Circuit also ruled that long-term isolation could
be unconstitutional. See Sweet v. S.C. Dep’t of Corr., 529 F.2d 854 (4th Cir. 1975). The court held that a
“restriction of two exercise periods of one hour” per week could constitute cruel and unusual punishment
when plaintiff’s segregated confinement had “extended already over a period of years” and was “likely
to extend indefinitely.” Id. at 866.
203
In 1973, for example, a judge concluded that while segregation for sixteen months or more in the
“control unit” in the federal facility at Marion was not per se an Eighth Amendment violation, evidence
was sufficient that the confinement of thirty-six prisoners in that setting was disproportionate, or left open
the possibility of such claims. See Adams v. Carlson, 368 F. Supp. 1050 (E.D. Ill. 1973); see also
Hardwick v. Ault, 447 F. Supp. 116, 125–27 (M.D. Ga. 1978); Wilwording v. Swenson, 502 F.2d 844,
851 (8th Cir. 1974), cert. denied, 420 U.S. 912 (1975); Chapman v. Kleindienst, 507 F.2d 1246, 1252
(7th Cir. 1974); Black v. Warden, U.S. Penitentiary, 467 F.2d 202, 203–04 (10th Cir. 1972).
204
NAT’L COUNCIL ON CRIME & DELINQUENCY, AN ACT TO PROVIDE FOR MINIMUM STANDARDS
FOR THE PROTECTION OF RIGHTS OF PRISONERS (1972) [hereinafter NCCD MODEL PRISONERS’ RIGHTS
ACT]; see also Sol Rubin, Introduction: A Model Act for the Protection of Rights of Prisoners,
1973 WASH. U. L.Q. 553; James A. Jablonski, Controlling Discretionary Power in Prison Organizations:
A Review of the Model Act, 1973 WASH. U. L.Q. 563.
205
See Rubin, supra note 204, at 553 n.3; SOL RUBIN, HENRY WEIHOFEN, GEORGE EDWARDS &
SIMON ROSENZWEIG, THE LAW OF CRIMINAL CORRECTION 617–18 (1963). As the book’s front-page
states, this project was endorsed by of the National Council on Crime and Delinquency.
206
NCCD MODEL PRISONERS’ RIGHTS ACT, supra note 204, at § 1.
207
Id.

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more than prisoners and gave as examples the failure to address isolation for
reasons often couched as “administrative.”208 Yet the model act could have
been one route to building limits on solitary confinement, as was the lower
court case law sketched above, which could have expanded as the prisoners’
rights movement developed.209 Instead, as we detail below, the Supreme
Court led a retrenchment as it circumscribed its rulings on both the Eighth
Amendment and on the application of the Due Process Clause’s procedural
protections.
In some of these opinions, judges justified profound isolation as an
appropriate response. Illustrative is a 1988 decision by federal appellate
judge Richard Posner, writing for the Seventh Circuit; he deployed the kind
of utilitarian calculus for which, as a founder of law and economics, he is
famous. In permitting the profound isolation in the federal Supermax in
Marion, Illinois to continue,210 Judge Posner posited that prisoners who had
“no expectation of ever being released from prison and are in no danger of
being executed” could not “be deterred by threat of punishment from trying
to kill and maim the inmates and guards who displease them.” 211
This conclusion came from one of a series of cases upholding the
“permanent lockdown” (in which all persons were held in isolation) that the
federal government put in place in 1983 in its Marion facility after the murder
of eleven individuals in the prison. As Judge Posner put it five years later,
“‘only’ 3 murders” had been committed since the permanent lockdown;
armed assaults by prisoners also declined from 115 to 34.212 Judge Posner
argued that the real beneficiaries of the total lockdown were prisoners, who
had been the “principal victims.”213 On his account, Marion reflected—albeit
“in a weird way”—the “aspirations to a humane criminal justice system” that
forbade “murderous inmates” from being executed or “beat senseless by
outraged guards.”214 If the highly restrictive conditions in Marion “‘opened
up’ . . . the lives and safety of the inmates and guards would be in grave
jeopardy.”215

208

See, e.g., Fred Cohen, In Search of a Model Act for Prisoners’ Rights, 1973 WASH. U. L.Q. 621,

632.
209
See James B. Jacobs, The Prisoners’ Rights Movement and Its Impacts, 1960-80, 2 CRIME & JUST.
429 (1980).
210
Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988).
211
Id. at 166.
212
Id. at 165.
213
See id.
214
Id. at 166.
215
Id.

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2.

Ruling Out “Ruin”: Questioning Solitary Confinement in the
1990s and Thereafter
Judge Motley and Judge Posner had conflicting metrics for the
constitutionality of profound isolation. Judge Motley found it impermissibly
debilitating while Judge Posner thought it a viable route to a kind of safety
in prisons. The research that we have outlined substantiates Judge Motley’s
views of the harms. Moreover, Judge Posner’s claims of solitary-as-safety
are undermined by assessments comparing rates of violence in general and
solitary populations and its toll on both prisoners and staff.216 In the decades
since Judge Posner wrote, new challenges to solitary confinement argued
that its harms were akin to deprivations of medical care, adequate food, and
heat, and therefore was an impermissible punishment.
The kinds of deprivations the Court has held prohibited are sometimes
summarized as “life’s necessities.” But that category does not explain why
states have to provide them when imposing punishment. One way to
illuminate the underlying proposition is that this body of law implicitly
recognizes that governments cannot, as part of their sanctioning powers, set
out to “ruin” people. The term “ruin” was invoked in a 2019 decision, Timbs
v. Indiana, which held that the Eighth Amendment’s prohibition on
excessive fines applied to the states.217 Both the majority and concurring
opinions explained that the Constitution’s ban on excessive fines was
predicated on the view that governments ought not to use punishment to ruin
a person economically.218 In his concurrence, Justice Clarence Thomas
discussed the history of the Excessive Fines Clause, imported at the
Founding from England, which he explained aimed to ensure that the state
“should not deprive a wrongdoer of his livelihood”;219 governments’
sanctioning power ought not to result in “the ruin of the criminal.”220
An open question is whether this holding will affect the widespread
imposition of monetary sanctions in the criminal and administrative
216
See generally Cyrus Ahalt, Colette S. Peters, Heidi Steward & Brie A. Williams, Transforming
Prison Culture to Improve Correctional Staff Wellness and Outcomes for Adults in Custody “The Oregon
Way”: A Partnership Between the Oregon Department of Corrections and the University of California’s
Correctional Culture Change Program, 8 ADVANCING CORRECTIONS J. 130 (2019); Mark D.
Cunningham, Thomas J. Reidy & Jon R. Sorensen, Is Death Row Obsolete? A Decade of Mainstreaming
Death-Sentenced Inmates in Missouri, 23 BEHAV. SCI. & L. 307 (2005); Venters, Mythbusting, supra note
154.
217
139 S. Ct. 682 (2019).
218
Id. at 687–88; id. at 697–98 (Thomas, J., concurring in judgment).
219
Id. at 693 (Thomas, J., concurring in judgment) (quoting United States v. Bajakajian, 524 U.S.
321, 335 (1998)). In quoting Bajakajian, Justice Thomas referenced the majority opinion that he authored.
220
Id. at 694 (quoting 2 THE HISTORY OF ENGLAND UNDER THE HOUSE OF STUART, INCLUDING THE
COMMONWEALTH 801 (1840)).

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contexts.221 Another is how to square historic protections with what today are
seen as the “barbaric” punishments that England imposed, such as execution
for many kinds of crimes, as well as branding and banishment to colonies.222
Some commentators of that era proffered utilitarian rationales for the
incongruity that governments could end a person’s life yet not “ruin” a
person economically. One justification proffered was that doing otherwise
would create perverse incentives, as a minor offense might leave a person in
a “worse Condition” than committing a capital crime.223 Another was that
ruining people imposed harms on communities. As Benjamin Franklin
explained, taking the property that was “necessary to a Man” was not what
the “Welfare of the Publick” demanded.224
Leaving a person in a “worse Condition” by forms of deprivations in
prison is likewise dysfunctional, as most incarcerated people leave prison.
But more than utility was at work when the common law duty of safekeeping
of prisoners became a constitutional obligation to provide “life’s
necessities.” The political theory recognizing the equality and dignity of all
persons in a democratic order helped to propel the courts to accord prisoners’
status as rights-holders. Courts have come to insist that democratic
governments must be purposeful in their punishments. The list of
punishment’s licit aims—rehabilitation, deterrence, incapacitation,
retribution, economic conservation of resources, and community safety—are
not served by purposefully debilitating individuals, no more than they are
served by withholding necessary medical care. Moreover, the prisoners’
rights law of the second half of the twentieth century has added to these
purposes that had been formulated long before the second half of the
twentieth century: punishments have to respect the equality of persons and
preserve certain aspects of their liberty and dignity.225
221
See Brandon Buskey, A Proposal to Stop Tinkering with the Machinery of Debt, 129 YALE L.J.F.
415 (2020); Beth A. Colgan & Nicholas M. McLean, Financial Hardship and the Excessive Fines Clause:
Assessing the Severity of Property Forfeitures After Timbs, 129 YALE L.J.F. 430 (2020).
222
As John H. Langbein pointed out to me, branding had its utilities. In an era without accessible
records, branding marked people as having avoided hanging one time, and therefore ineligible for rescue
a second time. See Kathryn Preyer, Crime, the Criminal Law and Reform in Post-Revolutionary Virginia,
1 LAW & HIST. REV. 53, 54 n.6 (1983). See generally John H. Langbein, The Historical Origins of the
Sanction of Imprisonment for Serious Crime, 5 J. LEGAL STUD. 35 (1976).
223
Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines
Clause, 40 HASTINGS CONST. L.Q. 833, 864–65 (2013) (quoting 1 A COMPLETE COLLECTION OF STATETRIALS, AND PROCEEDINGS FOR HIGH-TREASON AND OTHER CRIMES AND MISDEMEANOURS; FROM THE
REIGN OF KING RICHARD II TO THE REIGN OF KING GEORGE II, at xi (S. Emlyn ed., 3d ed. 1742)).
224
Id. at 869 (quoting Letter from Benjamin Franklin to Robert Morris (Dec. 25, 1783), in BENJAMIN
FRANKLIN: WRITINGS 1079, 1082 (1987)).
225
See Resnik, (Un)Constitutional Punishments, supra note 22.

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These ideas are reflected in the 1995 decision that held unconstitutional
the placement of seriously mentally ill people (but not others) in solitary
confinement.226 Judge Thelton Henderson explained that “mental health is a
need as essential to a meaningful human existence as other basic physical
demands our bodies may make for shelter, warmth or sanitation.”227
Concluding that the Eighth Amendment did not protect prisoners from “some
psychological effects from incarceration or segregation,”228 Judge Henderson
ruled that “if the particular conditions of segregation . . . inflict[ed] a serious
mental illness, greatly exacerbate[d] mental illness, or deprive[d] inmates of
their sanity, then defendants have deprived inmates of a basic necessity of
human existence—indeed, they have crossed into the realm of psychological
torture.”229
The research of the last decades raises questions about the viability of
that line-drawing and, indeed, of sharp distinctions between harms to one’s
brain as contrasted to one’s body. In 2005, Justice Anthony Kennedy
authored the Wilkinson v. Austin decision that condoned solitary
confinement, even as it required a modicum of process for certain forms of
isolation.230 A decade later, in 2015, he argued that placing people into
isolation would cause many to become seriously mentally ill. Joining in the
rejection of a habeas petition in Davis v. Ayala,231 Justice Kennedy explained
that the petitioner, Hector Ayala, who had been sentenced to death in 1989,
had likely been held for decades “in a windowless cell no larger than a typical
parking spot for 23 hours a day . . . [and] allowed little or no opportunity for
conversation or interaction with anyone.”232 To underscore his views of the
injuries imposed, Justice Kennedy posited that sentencing judges warn
defendants that “during the many years you will serve in prison before your
execution, the penal system has a solitary confinement regime that will bring
you to the edge of madness, perhaps to madness itself.”233 Justice Kennedy
then added that the “judiciary may be required . . . to determine whether
workable alternative systems for long-term confinement exist, and, if so,
whether a correctional system should be required to adopt them.” 234

226
227
228
229
230
231
232
233
234

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
Id. at 1261.
Id. at 1264.
Id.
See 545 U.S. 209 (2005).
135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring).
Id.
Id.
Id. at 2210.

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Soon thereafter, other Justices discussed the ruinous injuries of isolation
as they questioned its constitutionality. Justice Stephen Breyer, joined by
Justice Ruth Bader Ginsburg, echoed Justice Kennedy’s concerns in a dissent
that argued the unconstitutionality of the death penalty. Justice Breyer noted
the “numerous deleterious harms”235 that could “cause prisoners to
experience ‘anxiety, panic, rage, loss of control, paranoia, hallucinations,
and self-mutilations.’”236 In 2019, Justice Sonia Sotomayor likewise invoked
the image of a “penal tomb” when pointing to the constitutional infirmities
of solitary confinement.237
Yet some members of the Court have distanced themselves from this
approach and from evaluating Eighth Amendment questions through the lens
of “evolving standards of decency.”238 In 2015, responding to Justice
Kennedy’s critique of solitary confinement, Justice Thomas argued that the
focus should be on the individuals murdered; he wrote that “the
accommodations in which Ayala is housed are a far sight more spacious than
those in which his victims . . . now rest.”239 Moreover, Justice Thomas has
disavowed the application of the Eighth Amendment to prisons, and he is
one of several Justices who have raised objections to class-wide relief in
prison-conditions litigation.240
Furthermore, in 2019, when interpreting the Cruel and Unusual
Punishments Clause in Bucklew v. Precythe, a five-person majority
permitted use of a method of execution that would be brutally painful.
Writing for the majority, Justice Neil Gorsuch embraced a historical
approach that looked to the Founding Era and the punishments then in
common usage as examples of what were not “cruel and unusual

235

Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting, joined by Ginsburg, J.)
(citing Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement,
49 CRIME & DELINQ. 124, 130 (2003); Grassian, Psychiatric, supra note 167, at 331).
236
Id. at 2765. Justice Breyer continued to raise the problem of solitary in subsequent cases, again
as dissents from executions. See, e.g., Jordan v. Mississippi, 138 S. Ct. 2567, 2568 (2018) (Breyer, J.,
dissenting); Ruiz v. Texas, 137 S. Ct. 1246, 1246–47 (2017) (Breyer, J., dissenting).
237
Justice Sotomayor wrote: “A punishment need not leave physical scars to be cruel and
unusual. . . . Courts and corrections officials must accordingly remain alert to the clear constitutional
problems raised by keeping prisoners . . . in ‘near-total isolation’ from the living world . . . in what comes
perilously close to a penal tomb.” Apodaca v. Raemisch, 139 S. Ct. 5, 6, 10 (2018) (statement of
Sotomayor, J., respecting the denial of certiorari.). She also cited the 2014 ASCA/Liman data. Id. at 8
n.7.
238
Trop v. Dulles, 356 U.S. 86, 101 (1958), as invoked many times thereafter by the Supreme Court
and lower federal courts.
239
Davis, 135 S. Ct. at 2210 (Thomas, J., concurring).
240
See Brown v. Plata, 563 U.S. 493, 550 (2011) (Scalia, J., dissenting, joined by Thomas, J.); id. at
565 (Alito, J., dissenting, joined by Roberts, C.J.).

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punishments.”241 He provided details of aggressively brutal practices which
the Court appeared to put outside the reach of the Eighth Amendment. Only
the dissent by Justice Breyer on behalf of four argued that the Eighth
Amendment was not a “static prohibition” but banned “gruesome
punishments,” whether used at the Founding or not, that entail “excessive
suffering.”242
3. Outlawing (Again) Some Forms of Solitary Confinement
In the last decade, prisoners again challenged solitary confinement, and
several lawsuits ended with settlements that required reductions of isolation.
In addition, a few lower courts concluded that certain forms of solitary
confinement did violate the Eighth Amendment. In this wave of lawsuits, in
which some solitary conditions are no longer laden with filth, the focus has
been on the harms of isolation itself. The challenges have produced a mix of
opinions and settlements that intersected with administrative revisions of
policies (some of which are detailed in the ASCA/Liman reports), legislative
initiatives, and political action that aims to “stop solitary.” 243
As a result, in some jurisdictions, the formal criteria and procedures by
which people are put into solitary confinement have changed, the duration
of time spent in-cell reduced, and some out-of-cell activities required.244
Even as conflicts exist about whether genuine change is taking place or
whether solitary is being reconstituted under other names,245 the debates have
241
Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019). For an argument that prolonged solitary
confinement has not remained in common usage, see John F. Stinneford, Is Solitary Confinement a
Punishment?, 115 NW. U. L. REV. 9 (2020); see also John F. Stinneford, The Original Meaning of
“Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739 (2008). As
our account of the case law over the last decades suggests, whether solitary went out of common usage
depends on how both solitary and common usage are defined. What is new are dedicated “Supermax”
facilities.
242
Bucklew, 139 S. Ct. at 1144 (Breyer, J., dissenting, joined by Ginsburg, J., Sotomayor, J., and
Kagan, J.).
243
See, e.g., Andalusia Knoll, The National StopMax Campaign Conference, LEFT TURN,
http://www.leftturn.org/national-stopmax-campaign-conference [https://perma.cc/ST76-P8LV]; We Can
Stop Solitary, ACLU, https://www.aclu.org/issues/prisoners-rights/solitary-confinement/we-can-stopsolitary [https://perma.cc/GZ3M-T8VJ].
244
CTR. FOR CONSTITUTIONAL RIGHTS, SUMMARY OF ASHKER V. GOVERNOR OF CALIFORNIA
SETTLEMENT TERMS (2015), https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashkersettlement-summary.pdf [https://perma.cc/8TVY-WYXW] (settlement limiting the duration of solitary
confinement and changing the process of placement in solitary confinement from status-based, e.g., based
on gang affiliation, to behavior-based); Westefer v. Snyder, 725 F. Supp. 2d 735, 741–42 (S.D. Ill. 2010)
(changing the process by which individuals could be transferred to solitary confinement and enhancing
the privileges available to people in solitary confinement).
245
See Plaintiffs-Appellees’ Answering Brief on Appeal, Ashker v. Brown, No. 18-16427 (9th Cir.
May 31, 2019) [hereinafter Plaintiffs-Appellees’ Answering Brief on Appeal, Ashker v. Brown].

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shifted away from the fierce defenses of earlier decades when correctional
professionals were insistent on the desirability of using solitary confinement
to acknowledgments by prison authorities of the need to limit its use.
In this body of law, references are sometimes made to “evolving
standards of decency,” which provided the framework for much of the 1970s
case law.246 More often, judges determine that solitary confinement’s impact
constitutes what the 1976 Supreme Court held in Estelle v. Gamble to be
“deliberate indifference to serious medical needs,”247 and/or what the Court
in Rhodes v. Chapman termed deprivation of “the minimal civilized measure
of life’s necessities,” or imposition of “the wanton and unnecessary infliction
of pain” and, for some in-prison punishments, “grossly disproportionate”
sanctions in light of “the severity of the crime.”248 Judges have not yet
invoked the anti-ruination explanation we flagged above, even while aspects
of their law stand for that proposition. Indeed, Eighth Amendment rulings
that call for an inquiry into both the objective and subjective intent of prison
officials seek to determine what administrators could reasonably have known
about the harms inflicted.249
A few details of some settlements show the kinds of constraints agreed
upon. A first example comes from Pelican Bay, where in 1995 Judge
Henderson had prohibited solitary confinement for seriously mentally ill
people but not for others.250 Prisoners again were in the forefront as their
hunger strike brought national attention to the extensive use of profound
isolation.251 In 2015, in Ashker v. Governor of California, the federal court
approved a class-wide settlement that required the reduction by hundreds of
246

See, e.g., Order Denying Defendants’ Motion to Dismiss, & Alternatively, Motion for a More
Definite Statement at 9, G.H. v. Marstiller, No. 4:19-cv-00431-MW/CAS (N.D. Fla. Dec. 6, 2019). That
court denied motions to dismiss the class action brought on behalf of children held by the State in solitary
confinement. Id.
247
429 U.S. 97, 104 (1976).
248
452 U.S. 337, 347 (1981). See generally Coppola, supra note 175.
249
See, e.g., Farmer v. Brennan, 511 U.S. 825, 843–44 (1994); Wilson v. Seiter, 501 U.S. 294, 309
(1991); Helling v. McKinney, 509 U.S. 25, 35 (1993). Whether the doctrine always requires subjective
indicia is explored by Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured,
103 CORNELL L. REV. 357, 428–36 (2018).
250
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
251
Keramet Reiter, The Pelican Bay Hunger Strike: Resistance Within the Structural Constraints of
a US Supermax Prison, 113 S. ATLANTIC Q. 579 (2014). This political action garnered widespread public
attention. See, e.g., Jennifer Medina, Hunger Strike by California Inmates, Already Large, Is Expected to
Be Long, N.Y. TIMES (July 10, 2013), https://www.nytimes.com/2013/07/11/us/hunger-strike-bycalifornia-inmates-already-large-is-expected-to-be-a-long-one.html
[https://perma.cc/RS89-9MXR];
Benjamin Wallace-Wells, The Plot from Solitary, N.Y. MAG. (Feb. 21, 2014),
https://nymag.com/news/features/solitary-secure-housing-units-2014-2/
[https://perma.cc/HL7ZTTXX].

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the number of people held in isolation and changes in the conditions for those
who remained.252 Behavior, rather than being assumed to belong to “security
threat groups” (gangs), was to be the predicate for placement. As a result,
about 2,000 individuals were to be moved to general population, as were
individuals who had spent more than ten years in solitary confinement.253
Furthermore, placements were not to be indefinite, and the State was to
provide step-down programs and social contact.254
System-wide settlements in New York, Arizona, and Pennsylvania have
sought to limit the legitimate predicates for placement in solitary
confinement.255 The New York case began in 2011, when unrepresented
prisoners protested the imposition of long-term solitary confinement.256 In
the 2016 settlement of what had by then become the class action of Peoples
v. Annucci, New York agreed to change the offenses that resulted in solitary
confinement, to cap the time spent, to create alternative programs for
prisoners with special needs, and to end the “Loaf”—a baked tasteless food
that had been used as a punishment.257
Implementation of these settlements has been uneven, as reflected in
the Ashker class’s 2019 return to court; their lawyers alleged that many
individuals were held in the functional equivalent of the SHU under another

252
Settlement Agreement, Ashker v. Governor of Cal., No. C 09-05796 CW (N.D. Cal. Aug. 31,
2015) [hereinafter Settlement Agreement, Ashker v. Governor of Cal.].
The settlement limited duration of solitary confinement and changed the process of placement in
solitary confinement from status-based (e.g., based on gang affiliation) to infraction-based. Conflict over
implementation remains. See Plaintiffs-Appellees’ Answering Brief on Appeal, Ashker v. Brown, supra
note 245; Marisa Endicott, A 2015 Case Was Supposed to Overhaul California’s Solitary Confinement.
The Reality Is Much More
Complicated, MOTHER JONES (Feb.
13, 2019),
https://www.motherjones.com/crime-justice/2019/02/california-ashker-brown-solitary-confinementstatus-appeal/ [https://perma.cc/KP5S-QMC5].
253
Settlement Agreement, Ashker v. Governor of Cal., supra note 252; see also Paige St. John,
California Agrees to Move Thousands of Inmates out of Solitary Confinement, L.A. TIMES (Sept. 1, 2015,
8:09 PM), https://www.latimes.com/local/lanow/la-me-ln-california-will-move-thousands-of-inmatesout-of-solitary-20150901-story.html [https://perma.cc/T92Z-LMMQ].
254
Settlement Agreement, Ashker v. Governor of Cal., supra note 252, at 10, 11.
255
See, e.g., Peoples v. Annucci, 180 F. Supp. 3d 294 (S.D.N.Y. 2016); Davis v. Baldwin, No. 3:16cv-00600, 2017 WL 951406 (S.D. Ill. 2017); Parsons v. Ryan, No. 16-17282 (9th Cir. 2018); Disability
Rights Network of Pa. v. Wetzel, No. 1:13-cv-00635-JEJ (M.D. Pa. 2015); infra notes 262–266 and
accompanying text.
256
Annucci, 180 F. Supp. 3d at 296.
257
Id. at 301–02. For example, the basis of two class members’ three-year sentences to solitary
confinement was possession of prohibited documents. Under the settlement, this infraction could result
in no more than “thirty days of confinement to one’s own cell, not a SHU.” Id. at 301.

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name and that monitoring with court oversight remained necessary.258 As in
California, concerns emerged in New York following the Annucci v. Peoples
settlement; some commentators believe that many people remained in
solitary confinement under another name (“keeplock”) in which people were
held continuously in their own cells rather than moved to a segregated unit.
In 2019, the New York Civil Liberties Union (NYCLU) reported that
“40,000 solitary confinement sanctions were given in 2018,” and 6,000
sanctions “were served directly after a previous” penalty (“back-tobacks”).259 NYCLU argued that, while the settlement had reduced the number
of SHU sanctions by 2,400, the state had increased its keeplock sanctions by
3,100.260 What was needed, NYCLU argued, was enactment of the “HALT
Act” to limit solitary confinement to fifteen days, to require time out of cell,
and to prohibit putting into isolation individuals under age twenty-one or
over fifty-five or persons with a “diagnosed mental health challenge.” 261
Ashker and Peoples exemplify resolutions on behalf of all persons in a
system’s solitary confinement. Several other cases address subpopulations,
such as individuals with distinct health challenges, juveniles, or individuals
subject to capital sentences. Two lawsuits involving prisoners in
Pennsylvania are illustrative. A 2015 settlement responded to Disability
Rights Network of Pennsylvania v. Wetzel, which alleged that the State’s
Department of Corrections kept people with serious mental illness and other
disabilities in solitary confinement, that they cycled in and out, and that such
treatment led to their deterioration.262 The agreement barred the Department
of Corrections from using solitary confinement for individuals with
disabilities (except in narrowly defined circumstances); ruled out placements
based on acts of self-harm; created protections against repeat assignments;
and, for individuals held in “secure residential treatment units,” required that
the prisoners had twenty hours out-of-cell time per week—of which half was
structured—and that such individuals not remain in these units longer than
thirty days.263 Another consent agreement, Reid v. Wetzel, responded to
claims on behalf of individuals with capital sentences whom Pennsylvania
258
Plaintiffs-Appellees’ Answering Brief on Appeal, Ashker v. Brown, supra note 245; Order
Granting Motion to Extend Settlement Agreement, Ashker v. Baker, No. 09-cv-05796-CW (N.D. Cal.
Jan. 25, 2019).
259
SHAMES & DESGRANGES, supra note 16, at 1.
260
Id. at 9.
261
Id. at 10, 22.
262
See Complaint at 18, Disability Rights Network of Pa. v. Wetzel, No. 1:13-cv-00635-JEJ (M.D.
Pa. Mar. 11, 2013).
263
For additional terms of the settlement, see Settlement Agreement & General Release, Disability
Rights Network of Pa. v. Wetzel, No. 1:13-cv-00635-JEJ (M.D. Pa. Jan. 9, 2015).

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had held in solitary confinement. In November 2019, Pennsylvania agreed
to provide at least 42.5 hours of out-of-cell time per week264 and accord these
prisoners the same “rights and privileges” for phone calls and contact visits
that were available in general population.265 The settlement agreement was
finalized in April 2020.266
In addition to consent decrees, a few published opinions since 2016
have held specific forms of solitary confinement unconstitutional or found
that the solitary confinement of certain individuals violated the Americans
with Disabilities Act, the Religious Land Use and Institutionalized Persons
ACT (RLUIPA), or the Free Exercise Clause.267 A leading example of an
Eighth Amendment ruling comes from a 2019 Fourth Circuit decision,
Porter v. Clarke, which addressed conditions on Virginia’s death row.268
Individuals had spent years “alone, in a small . . . cell” with “no access to
congregate religious, educational, or social programming.”269 Relying on
evidence that such long-term solitary confinement posed “an objective risk
of serious psychological and emotional harm to inmates,”270 the district court
264
Settlement Agreement at 13, Reid v. Wetzel, No. 18-cv-00176-JEJ (M.D. Pa. Nov. 12, 2019)
[hereinafter Settlement Agreement, Reid v. Wetzel]. For the complaint, filed in January 2018 by the
ACLU, Abolitionist Law Center, and pro bono counsel, see Class Action Complaint for Declaratory &
Injunctive Relief, Reid v. Wetzel, No. 1:18-cv-00176-JEJ (M.D. Pa. Jan. 25, 2018).
265
See Settlement Agreement, Reid v. Wetzel, supra note 264, at 10.
266
Memorandum & Order, Reid v. Wetzel, No. 1:18-cv-00176-JEJ (M.D. Pa. Apr. 9, 2020).
267
See, e.g., Greenhill v. Clarke, 944 F.3d. 243, 251–52 (4th Cir. 2019). Alfonza Greenhill, initially
appearing without an attorney, argued that because Virginia had placed him in solitary confinement and
would not let him join in watching the televised Friday Muslim prayer services, the State was preventing
him from observing his religion. Further, he argued that the state “grooming” rules prevented him from
having the beard his religion counseled. The appellate court reversed the lower court’s dismissal and
remanded to consider whether Virginia could establish that its bar on television access for the services
was “in furtherance of a compelling government interest” and “the least restrictive means of furthering
that compelling government interest,” as well as met First Amendment obligations. Id. (quoting criteria
from the statute and the case law).
268
923 F.3d 348, 353–57 (4th Cir. 2019), as amended (May 6, 2019), reh’g en banc denied (Jul. 26,
2019); see also Mary Marshall, The Promise of Porter? Porter v. Clarke and Its Potential Impact on
Solitary Confinement Litigation, 120 COLUM. L. REV. F. 67 (2020).
269
Porter, 923 F.3d at 357. That the prison did not call it solitary was not conclusive given these
conditions. Id. at 359–60.
270
Id. at 356–57 (citing to expert reports submitted by plaintiffs, written by Dr. Mark Cunningham
and Dr. Michael Hendricks, as well as a leading survey of the literature on solitary confinement that
concluded “there is not a single published study of solitary or supermax-like confinement [for more than
10 days] . . . that failed to result in negative psychological effects”). The Fourth Circuit also cited the
Third Circuit, which, after analyzing the “robust body of scientific research on the effects of solitary
confinement,” held that there is a “scientific consensus” that solitary confinement “is psychologically
painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of
long-term . . . damage.” Id. at 357 (citing Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 566–67 (3d
Cir. 2017), cert. denied sub nom. Walker v. Farnan, 138 S. Ct. 357 (2017), and cert. denied sub nom.

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held, and the Fourth Circuit affirmed, that the conditions violated the Eighth
Amendment.271 As the Fourth Circuit put it, putting individuals into this form
of solitary confinement “posed a substantial risk of serious psychological
and emotional harm” and “State Defendants were deliberately indifferent to
that risk.”272
The remedy was to ease the restrictiveness.273 The district court ordered
the end of confinement for twenty-three hours alone in a cell and the ban on
contact visitation and communal recreation.274 Instead, Virginia prison
authorities were to create policies “relating to cell time, visitation, and
recreation that defendants, in their professional expertise, believe satisfy
both the Eighth Amendment and the prison’s need for security.”275 By the
time of the appeal, prison officials argued that the case was moot because
they had complied with the injunctive requirements.276 Rejecting that
proposition based on “a cognizable danger of recurrent violation,” the Fourth
Circuit upheld the injunction.277
A few other lower court decisions have likewise found conditions
unconstitutional. A 2016 district court ruling, Johnson v. Wetzel, responded
to Arthur Johnson, whom the Pennsylvania Department of Corrections had
isolated for thirty-six years278 in a continuously lit sixty-eight-square-foot
cell, where he was held twenty-three to twenty-four hours a day.279 The
district court determined that Johnson’s confinement constituted an
“objectively ‘serious’ deprivation of life’s basic needs or a ‘substantial risk
of serious harm’ to his or her health” and that prison officials knew “well the
risks inherent in prolonged isolation,” and then ordered Johnson’s release

Williams v. Wetzel, 138 S. Ct. 357 (2017); see also, e.g., Grissom v. Roberts, 902 F.3d 1162, 1176–77
(10th Cir. 2018) (Lucero, J., concurring in the judgment) (reviewing academic literature and determining
that “solitary confinement, even over relatively short periods, renders prisoners physically sick and
mentally ill” and that “[t]hese harms, which are persistent and may become permanent, become more
severe the longer a person is exposed to solitary confinement”).
271
Porter, 923 F.3d at 364.
272
Id. at 368.
273
See Porter v. Clarke, 290 F. Supp. 3d 518, 537–38 (E.D. Va. 2018), aff’d, 923 F.3d 348 (4th Cir.
2019), as amended (May 6, 2019). The court imposed an injunction that, in accordance with the Prison
Litigation Reform Act, was to be reevaluated after two years. Id.
274
Id. at 537.
275
Id.
276
Porter, 923 F.3d at 364–65.
277
Id. at 365.
278
209 F. Supp. 3d 766, 774–75 (M.D. Pa. 2016).
279
Id. The one hour of permitted exercise took place in a nine-by-twenty-foot cage that had no
equipment. Id. at 777.

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from solitary confinement.280 The judge commented that, after thirty-six
years, “Mr. Johnson deserves the opportunity to shake hands with someone
other than his attorneys.”281
In 2019, rulings in Virginia and Connecticut likewise identified Eighth
Amendment violations. At issue in Reyes v. Clarke was Virginia’s treatment
of prisoners in its Red Onion Prison where Nicolas Reyes was held.282 The
district court rejected efforts to dismiss the case because, both objectively
and subjectively, prison authorities knew of the harms from long-term
confinement in a cell “roughly half the size of a parking space,” with no
natural light, constant artificial light, and the “nearly absolute” lack of social
contact.283
In Reynolds v. Arnone,284 lawyers for Richard Reynolds, held in
Connecticut’s prisons, told the court that since 1995 he “has spent nearly
every moment of his life alone” in a cell with “almost no natural light.”285 By
2018, Connecticut was providing no more than six hours a week of fresh air,
subject to limits for institutional needs or weather.286 No meaningful
interpersonal contact was permitted, and such isolation was to continue “for
the rest of his life.”287
The district judge concluded that Reynolds had established “both an
objective element—that the prison officials’ transgression was ‘sufficiently
serious’—and a subjective element—that the official acted, or omitted to act,
with a ‘sufficiently culpable state of mind,’ i.e., with ‘deliberate indifference
to inmate health or safety.’”288 The district court granted summary judgment;
the court concluded that that Reynolds had established that his confinement
violated the Eighth Amendment as well as Fourteenth Amendment due
280

See id. at 776–82.
Id. at 782. Thereafter, the State settled with Johnson for $325,000 (including attorney’s fees) and
an agreement that he would not be returned to solitary confinement on the basis of his prior record.
Settlement in Lawsuit That Ended 37-Year Solitary Confinement, ABOLITIONIST L. CTR. (Dec. 21, 2017),
https://abolitionistlawcenter.org/tag/johnson-v-wetzel/ [https://perma.cc/RJ4Q-U3NB].
282
No. 3:18-cv-611, 2019 WL 4044316, at *6–7 (E.D. Va. Aug. 27, 2019).
283
Id. at *6–7, *15–18.
284
Ruling on Defendants’ Motion for Stay Pending Appeal, Reynolds v. Arnone, No. 3:13-cv-1465SRU (D. Conn. Oct. 16, 2019).
285
Brief of Plaintiff-Appellee at 1, Reynolds v. Arnone, No. 19-2858 (2d Cir. Feb. 20, 2020).
286
Id. at 2.
287
Id. at 3
288
Reynolds v. Arnone, 402 F. Supp 3d. 3, 15–16 (D. Conn. 2019) (citing Phelps v. Kapnolas,
308 F.3d 180, 185 (2d Cir. 2002) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The judge
linked the objective prong (deprivations of “basic human needs—e.g., food, clothing, shelter, medical
care, and reasonable safety” as well as “extreme social isolation”) to violations of “contemporary
standards of decency.” Id. at 16 (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)).
281

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process protections. In addition, the court determined that the 2012 statute
requiring his confinement in such profoundly limiting circumstances
constituted an illegal bill of attainder.289
B. Line-Drawing: The Quest to Distinguish Among In-Prison Punishments
Even as a few lower courts have mandated, as we outlined above, an
end to certain forms of isolation, other judges are refusing to require
procedural protections for people placed in solitary confinement. In contrast
to that small body of Eighth Amendment law, a large number of cases
address whether procedural protections are required under the Fourteenth
Amendment when a person is placed in solitary confinement. And, unlike
the appreciation in the Eighth Amendment decisions of the harms that flow
from the radical limits on human movement, many Fourteenth Amendment
opinions take for granted long-term profound isolation as so normal an
incident of prison life that no judicial oversight is needed.
These decisions turn on questions posed at the outset of this Essay about
whether prison officials have unfettered authority to impose different
degrees of constraint on individual movement. Critical scholarship
sometimes argues that lawyers focus unduly on process, which distracts from
concerns about justice.290 Yet the filings by incarcerated people reflect fear
of both unfair decisions and unjust treatment. Repeatedly, prisoners have
reached out to find buffers—including but not limited to procedural
protections—to constrain the unilateral power of prison officials. Many of
these efforts have now been rejected, as the Court’s majority developed the
mantra that, given incarceration, a host of radical incursions on human
functioning were “normally expected.”291
1. Liberty’s Sources and Life in Incarceration
We turn now to disagreements among the Court’s Justices about
liberty’s sources, the kinds of constraints reasonably imposed by virtue of
confinement, the function of process, and the role of courts in protecting
people from punishment through transfers and segregation. As we detail
below, Justices John Paul Stevens, William Brennan, and Marshall viewed
289
Id. at 25. The district court concluded that Reynolds had a protected liberty interest in freedom
from extreme social isolation and was deprived of his due process rights. Id. at 30. Further, the court held
that Reynolds’s conditions of confinement violated his rights under the Equal Protection Clause. Id. at
33–34. The injunction to reduce the degree of isolation imposed has been stayed pending appeal.
290
Now-classic statements of such concerns come from William H. Simon, The Rule of Law and the
Two Realms of Welfare Administration, 56 BROOK. L. REV. 777 (1990), and Lucie E. White, Goldberg v.
Kelly on the Paradox of Lawyering for the Poor, 56 BROOK. L. REV. 861 (1990).
291
Sandin v. Conner, 515 U.S. 472, 487 (1995).

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human liberty as an “unalienable right[]” which lawful incarceration did not
extinguish.292 For others—Justice Byron White at times and Chief Justice
William Rehnquist always—imprisonment ended most forms of liberty.
Liberty interests were extinguished but aspects of liberty could derive from
federal or state law if creating entitlements that provided opportunities such
as statutory good-time and structured rules on when disciplinary sanctions
would be imposed.293
Because Chief Justice Rehnquist, appointed in 1971, has been central
to shaping the case law that today frames solitary confinement, his
background assumptions merit analysis.294 Generally hostile to constitutional
evolution, which he decried in a 1976 essay entitled The Notion of a Living
Constitution,295 Chief Justice Rehnquist railed against an expanding role for
the federal judiciary, the “litigation explosion,” and, specifically, filings by
prisoners.296 Further, he repeatedly evidenced lack of concern for the
vulnerability of prisoners. Illustrative is his choice to pluck from obscurity a
1973 Third Circuit ruling, Russell v. Bodner, which he accused of lowering
the “stature” of the United States Constitution and of the federal courts.297
The appellate court had reversed the dismissal of what Chief Justice
Rehnquist characterized as “a claim by a prison inmate against a prison guard
for allegedly stealing a carton of the inmate’s cigarettes.”298
But reading the Third Circuit’s per curiam decision tells a different
story.299 Proceeding without a lawyer, Herman Russell alleged that Joseph
Bodner, a guard at a state prison in Pittsburgh, Pennsylvania, had entered his
cell and taken some of his food; after Russell protested, Bodner told Russell
that he would “prove” he could do whatever he wanted.300 Russell alleged
that Bodner then came into his cell and stole several packages of cigarettes.
292

Meachum v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J., dissenting).
See, e.g., id. at 225–26 (majority opinion) (Justice White distinguishing transfers from loss of
good-time credit); Hewitt v. Helms, 459 U.S. 460, 470–71 (1983) (Chief Justice Rehnquist finding that
state statues that set forth the procedures for confining a prisoner to administrative segregation did create
a liberty interest).
294
See generally Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and
Federal Power, 78 IND. L.J. 223 (2003); Judith Resnik, Tiers, 57 S. CAL. L. REV. 837 (1984).
295
See William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 706 (1976).
296
See William H. Rehnquist, Whither the Courts, 60 A.B.A. J. 787, 787–89 (1974).
297
William H. Rehnquist, A Plea for Help: Solutions to Serious Problems Currently Experienced by
the Federal Judicial System, 28 ST. LOUIS U. L.J. 1, 9–10 & n.28 (1984).
298
Id. at 9–10 (citing Russell v. Bodner, 489 F.2d 280 (3d Cir. 1973)).
299
Judge Arlin Adams concurred but argued that the injury was de minimis and doubted whether
federal courts ought to be concerned with such issues. Russell, 489 F.2d at 281–82 (Adams, J.,
concurring).
300
Id. at 281 (majority opinion).
293

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After requests to the warden were unavailing, Russell filed suit, and the Third
Circuit reversed the dismissal of the complaint because the “misuse of
power” under color of state law was actionable. Chief Justice Rehnquist’s
belittling of Russell’s fears was matched in other writings, such as when he
chose the phrase “austere” to describe the profound isolation of solitary
confinement.301
Moreover, Chief Justice Rehnquist’s indifference to prison terrors is
likewise vivid in arenas outside the prisoners’ rights canon. Illustrative is his
majority decision in United States v. Bailey302 addressing the interpretation
of the federal statute that prohibited “escapes or attempts to escape from the
custody of the Attorney General.”303 The defendants—Clifford Bailey,
Ronald Cooley, and Ralph Walker—asserted that they did not have specific
intent to escape from the D.C. Jail but rather acted under duress because
guards frequently set fires, beat them, and withheld needed medical care;
they wanted to argue to the jury that they had left the jail to save
themselves.304 Writing for the D.C. Circuit, Judge J. Skelly Wright called for
a new trial because the lower court had not given proper jury instructions and
excluded relevant evidence.305
Chief Justice Rehnquist wrote the opinion that resurrected the
conviction. As he explained, the D.C. Circuit had interpreted the
“confinement” of the federal statute to encompass “only the ‘normal aspects’
of punishment prescribed by our legal system”; when prisoners aim “to avoid
‘non-confinement’ conditions such as beatings or homosexual attacks,” they
would not have the requisite intent for a conviction.306 But the prisoners not
only left, Chief Justice Rehnquist stated—they stayed away. To be entitled
to the instruction on duress, they would have to have provided “evidence
justifying . . . continued absence,” which they had not.307 Absent a showing

301
Hewitt v. Helms, 459 U.S. 460, 466–67 (1983). Chief Justice Rehnquist wrote: “Respondent
argues, rather weakly, that the Due Process Clause implicitly creates an interest in being confined to a
general population cell, rather than the more austere and restrictive administrative segregation quarters.”
Id.
302
444 U.S. 394 (1980).
303
18 U.S.C. § 751(a) (1976). This phrase is still in use in the most recent version of § 751(a).
304
United States v. Bailey, 585 F.2d 1087, 1091 (D.C. Cir. 1978), rev’d, 444 U.S. 394 (1980). Bailey
and Cooley asserted that they were beaten; Walker said his codefendants forced him to leave because he
had epileptic seizures and could not get care. Id.
305
Id.
306
Bailey, 444 U.S. at 401.
307
Id. at 412.

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“of a bona fide effort to surrender or return to custody as soon as the claimed
duress or necessity had lost its coercive force,” no instruction was required.308
These propositions prompted Justice Harry Blackmun, joined by Justice
Brennan, to counter that the majority’s “technical legalism” and “pious
pronouncements” were about an “ideal world” where prisons were “truly
places for humane and rehabilitative treatment.”309 But in this one, where
every appellate court learned “almost daily from prisoners about conditions
of incarceration, about filth, about homosexual rape, and about brutality,”
this “stark truth”310 ought not to require people to “return forthwith to the hell
that obviously exceeds the normal deprivations of prison life and that
compelled their leaving in the first instance.”311
Justice Blackmun further detailed that the record included “the
brutalization of inmates,” beatings with “slapjacks, blackjacks, and
flashlights,” and rapes; in his view, punishment could not flow when “society
has abdicated completely its basic responsibility for providing an
environment free of life-threatening conditions.”312 As his dissent in Bailey
made plain, Justice Blackmun, who as an appellate judge had written the
1968 Eighth Circuit decision that banned whippings in Arkansas prisons,
understood the chaotic violence that was routine in some prison systems. 313
Yet the records in many cases presented the appearance that, given
regulations and written procedures, prisons were full of law—which some
judges equated with being lawful. Prison officials often recounted their
detailed regulations and their statistics about the thousands of hearings they
conducted related to discipline. One can almost hear some Justices saying:
“What more do ‘they’ want?” Yet the records are also evidence of the
lawlessness of prisons in that exercises of power by staff repeatedly resulted
in stunningly substantial punishments for minor violations of any of the
many rules each prison had. Thus, one can hear other Justices explaining:
“What ‘they’ want is a real opportunity to stop unbounded authority and
unfair treatment.”
308

Id. at 415.
Id. at 419, 420 (Blackmun, J., dissenting, joined by Brennan, J.). Justice Marshall did not
participate, id. at 417 (Marshall, J., taking no part in the consideration or decision), and Justice Stevens
concurred only on the grounds that the evidence presented by the defendants did not suffice for the
defense, but that all must be concerned about the prison conditions, id. at 417–19 (Stevens, J., concurring).
310
Id. at 420 (Blackmun, J., dissenting).
311
Id.
312
Id. at 421–22.
313
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). Justice Blackmun, however, shifted in the
decade after and joined majorities deferring to prison administrators’ discretion on transfers as well as
administrative and disciplinary confinement. See infra notes 407–410, 449–450 and accompanying text.
309

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a. In or out of prison
The Supreme Court’s approach to procedural protections for solitary
confinement is predicated on a series of due process opinions beginning in
1974 with Wolff v. McDonnell, the first case exploring the process due for
in-prison punishments. At issue then was the penalty system when a prisoner
engaged in “flagrant or serious” misconduct; the Court required Nebraska
prison officials to hold hearings before taking away prisoners’ good-time
credits.314 The class action had begun with challenges to various rules at the
Nebraska Penal and Correctional Complex; the prisoners alleged officials
censored mail, limited access to legal services, retaliated against “writ
writers,” and imposed discipline unfairly.315
The district court generally agreed, as it identified prisoners losing good
time for “messing up the count up, cussing a guard, bringing a sandwich into
the shop,” as well as for fighting and organizing protests.316 Concluding that
“fundamental due process is a right of all persons, including inmates,” the
lower court noted the limited approach the Eighth Circuit had taken to the
process due; the court therefore limited their order to compliance with
Nebraska’s rules and called for the restoration of good time for some of the
prisoners who lost it for activities outside the grounds proscribed by
Nebraska’s statute.317
On appeal, the Eighth Circuit expanded the mandate for procedural
protections by requiring the procedures, then called the “Morrissey-Scarpelli
procedures,” based on the two cases in which the Supreme Court had
prescribed that protections be afforded when the government wanted to
revoke probation or parole.318 The appellate court, relying on the district court
opinion, reasoned that, just as sending people to prison based on violations
of the rules for conditional releases, in-prison punishments could entail
“substantial” and “serious” penalties “such as incarceration in a dry cell or
solitary confinement” and the loss of good time.319 Given the impact on both
314

See Wolff v. McDonnell, 418 U.S. 539, 547, 557–58 (1974).
See McDonnell v. Wolff, 342 F. Supp. 616, 617, 619–20, 622, 626–28 (D. Neb. 1972), aff’d in
part, rev’d in part, 483 F.2d 1059 (8th Cir. 1973), aff’d in part, rev’d in part, 418 U.S. 539 (1974). The
appellate court affirmed the lower court holding unconstitutional the prison searches of outgoing legal
mail and some of the restrictions on law library access. McDonnell, 483 F.2d at 1066–67. In the Supreme
Court, the focus was on the rules for discipline. See Wolff, 418 U.S. at 542.
316
McDonnell, 342 F. Supp. at 628 (internal quotation marks omitted).
317
Id. at 627–28. The appellate court affirmed the expungement of records, and the Supreme Court
rejected the “retroactivity” of the procedural rights. See Wolff, 418 U.S. at 573.
318
McDonnell, 483 F.2d at 1062–63; Wolff, 418 U.S. at 560; see also Gagnon v. Scarpelli, 411 U.S.
778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).
319
See McDonnell, 483 F.2d at 1063–64; McDonnell, 342 F. Supp. at 627–28.
315

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the nature and duration of confinement, the State had to provide in-person
hearings with cross-examination and confrontation.320 Specifics, including
whether to add lawyers, were reserved for the trial court after more factfinding.321
The “primary issue” at the Supreme Court was the process due for inprison discipline.322 The litigants and amici presented radically different
pictures of the nature of prisons, the impact of discipline, the procedures
already in place, and the potential contributions or risks of making counsel
and cross-examination available. Several amici filings on behalf of the
prisoners discussed the hopes of incarcerated people for accuracy and
fairness and the utility of lawyers and witnesses at prison hearings.323 The
National Council on Crime and Delinquency reminded the Court of the
findings of the New York State Commission that investigated the 1971
uprising at Attica, which detailed how debilitating prison conditions were
and how arbitrary the power exercised by guards was.324 The National
Council wrote about prisoners’ isolation, their fear of “injustice” at the hands
of “poorly trained[] and poorly educated” staff, and the importance of using

320
McDonnell, 483 F.2d at 1062–63. The cases that required hearings before a person was
incarcerated for violating parole or probation were Morrissey, 408 U.S. 471, and Scarpelli, 411 U.S. 778,
and as discussed above, the Court declined to import the full set of procedures it had proscribed in those
contexts for in-prison discipline.
321
McDonnell, 483 F.2d at 1063–64. Rejecting the request for rehearing en banc, the court added
that it had only required legal counsel when, as in Scarpelli, doing so was required for “fundamental
fairness.” Id. at 1067. The appellate court affirmed other aspects of the rulings on censorship, mail, and
legal assistance, and remanded for more information on some issues. Id. at 1064–67.
322
Wolff, 418 U.S. at 580 (Marshall, J., concurring in part and dissenting in part). The Court also
revised the lower court rulings on how prison officials can control prisoners’ mail; the Court held that
Nebraska could require lawyers to identify the letters as privileged and that staff could open mail in front
of the prisoner to ensure no contraband was inside but that staff could not read the contents. The Court
affirmed the Eighth Circuit’s remand to ensure that access to legal assistance—including from other
prisoners and for civil rights as well as habeas corpus petitions—was required. Id. at 576–79 (majority
opinion).
323
See, e.g., Brief of Inmates of the District of Columbia Correctional Complex at Lorton, Virginia,
Amici Curiae at 4–15, Wolff v. McDonnell, 418 U.S. 539 (1974) (No. 73-679), 1974 WL 185775, at *4–
15. Quoting one prison official, the brief noted that most of the time the accused prisoner knew who had
leveled accusations against him. Id. at *12.
324
Brief of the National Council on Crime & Delinquency as Amicus Curiae at 3–5, Wolff v.
McDonnell, 418 U.S. 539 (1974) (No. 73-679), 1974 WL 185767, *3–5 [hereinafter Brief of the National
Council on Crime & Delinquency as Amicus Curiae, Wolff v. McDonnell]; N.Y. STATE SPECIAL COMM’N
ON ATTICA, ATTICA: THE OFFICIAL REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON ATTICA
2, 3–6, 74, 95–98 (1972).

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disciplinary hearings as one way to lower tensions, express respect, and
foster reintegration into the social order.325
The litigants also referenced the American Bar Association’s Survey of
Prison Disciplinary Practices and Procedures, which depicted “the collective
judgment of correctional administrators, judges, lawyers, prisoners, and
others about the appropriate balance of interests.”326 That survey reported
that most states had written policies setting forth disciplinary procedures;
included were obligations to provide notice, opportunities to present
evidence, an impartial tribunal, and written decisions with some review.327
Further, thirty-nine states reported that some “counsel-substitute” could
assist prisoners; thirty-one permitted prisoners to confront “accusing
witnesses”; and twenty-eight permitted “cross-examination of adverse
witnesses.”328 Moreover, a Department of Justice Corrections Commission
had, in 1973, provided standards that reflected that “[c]orrectional systems
on their own initiative” had created procedures for discipline that
incorporated “substantial portions of the recognized elements of
administration agency due process.”329
A very different account came from the United States through thenSolicitor General Robert Bork, who both joined the oral argument and filed
an amicus brief warning against the procedures the appellate court had
mandated.330 While committed to “accurate fact-finding in the context of
325

Brief of the National Council on Crime & Delinquency as Amicus Curiae, Wolff v. McDonnell,
supra note 324, at 3–4, 9–11, 14–16, 21–26; see also Brief of the Legal Aid Society of New York, Amicus
Curiae at 2, Wolff v. McDonnell, 418 U.S. 539 (1974) (No. 73-679), 1974 WL 185769, at *2.
326
See, e.g., Brief for the Respondent at 14, 26 n.22, 27 n.24, 28 nn.25 & 27, 30 nn.29–30, app. at
7a, Wolff v. McDonnell, 418 U.S. 539 (1974) (No. 73-679), 1974 WL 185771, at *14, *26 n.22, *27
n.24, *28 nn.25 & 27, *30 nn.29–30 [hereinafter Brief for the Respondent, Wolff v. McDonnell]. The
ABA report was issued before Wolff was decided and then revised to include an “analysis” of its impact.
See Melvin T. Axilbund, Preface, in RES. CTR. ON CORR. LAW & LEGAL SERVS., AM. BAR ASS’N,
SURVEY OF PRISON DISCIPLINARY PRACTICES AND PROCEDURES: WITH AN ANALYSIS OF THE IMPACT OF
WOLFF V. MCDONNELL (1974); Brief for the Respondent, Wolff v. McDonnell, supra, app. at 4a–6a.
327
Brief for the Respondent, Wolff v. McDonnell, supra note 326, app. at 11a.
328
Id.
329
Id. at 30 & n.31 (citing DEP’T OF JUSTICE CORR. COMM’N, CORRECTIONS 52 (1973)).
330
Brief for the United States as Amicus Curiae at 5, Wolff v. McDonnell, 418 U.S. 539 (1974) (No.
73-679), 1974 WL 185774, at *5 [hereinafter Brief for the United States as Amicus Curiae, Wolff v.
McDonnell]; Transcript of Oral Argument of Robert H. Bork for the United States, as Amicus Curiae,
Supporting Petitioner at 11, Wolff v. McDonnell, 418 U.S. 539 (1974) (No. 73-679). California also filed
a brief urging the Court to limit the Eighth Circuit decision See Brief of Evelle J. Younger, Attorney
General of the State of California, Amicus Curiae at 3, Wolff v. McDonnell, 418 U.S. 539 (1974) (No.
73-679) [hereinafter Brief of Evelle J. Younger, Attorney General of the State of California, Amicus
Curiae, Wolff v. McDonnell]. California argued that prison authorities ought to be required to provide
“minimum standards,” and that a fair process included “a fact finding system based upon an investigation
by an independent officer, notice and opportunity to be heard before an impartial tribunal, the right to

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prison disciplinary proceedings,” he asserted that “the unique conditions of
the prison environment and the nature of the interests served by the
disciplinary process in that environment” meant that the Court ought not to
apply its rules for parole and probation revocation, even if “there may be a
slightly increased risk of factual mistakes in a few cases.”331
The U.S. government opined that “the impact of prison discipline on
the individual, although not unimportant to him, is almost invariably far less
grave than the consequences of a criminal conviction or of revocation of
parole or probation.”332 Discipline altered prisoners’ liberty but “only
marginally—and often only briefly.”333 Because prisons were often “tense
and volatile,” the brief reported that prison officials thought “that testimonial
confrontations between an inmate and staff members or other inmates can be
dangerous and are to be avoided whenever possible.”334 In short, “substantial
governmental interests and needs” were to trump the risks to prisoners of a
less fair process.335
Justice White’s majority opinion reflected those concerns even as it
used Cold War Era terminology to insist that no “iron curtain” separated
prisons from the Constitution.336 While “[l]awful imprisonment necessarily
makes unavailable many rights and privileges of the ordinary citizen,” it did
so to accommodate institutional needs; prisoners retained many
constitutional rights, including the guarantees of the Due Process Clause.337
The Court held that, given that the State had created a system of good-time
credits and authorized officials to take away time earned for specified serious
misconduct, due process protections were required to buffer against arbitrary
retraction.338
As we analyze below, Wolff’s approach was cabined in later years. But
at the time, the Court’s procedural requirements applied to both the loss of
good time and the sanction of solitary confinement, which the Court
described to include either the “usual ‘disciplinary cell,’ with privileges
severely limited, for as long as necessary, or . . . a ‘dry cell,’ which, unlike

present evidence, to receive written findings . . . and [a] speedy . . . review” and state court oversight for
“arbitrary or capricious action,” but no “right to counsel [or] to cross-examine.” Id. at 2–3.
331
Brief for the United States as Amicus Curiae, Wolff v. McDonnell, supra note 330, at 11.
332
Id.
333
Id. at 7.
334
Id.
335
Id. at 11.
336
Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
337
Id.
338
Id. at 558.

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regular cells, contains no sink or toilet.”339 The Court bundled those two
punishments together and contrasted them with the “imposition of lesser
penalties such as the loss of privileges.”340
That reference to “privileges” reflected that the Court’s discussion was
not clear about the sources of prisoners’ liberty or about when process would
be required. The majority’s formulation, quoted above, could mean that
prisoners, as humans, have liberty protected by the Due Process Clause, or,
alternatively, that if either the Constitution or state law created specified
entitlements, the Constitution required procedural fairness. Moreover, the
opinion also referenced the Court’s other discussions of state-imposed losses
of property and liberty as it then insisted that “protection of the individual
against arbitrary action” was the core concern of the Fourteenth
Amendment’s Due Process Clause.341
Justice Marshall’s partial dissent endorsed the first reading, as he
described his agreement with the majority’s “holding that the interest of
inmates in freedom from imposition of serious discipline is a ‘liberty’
entitled to due process protection.”342 Likewise, Justice William Douglas,
concurring in the result but dissenting in part, explained that incarceration
did not “render one a nonperson whose rights are subject to the whim of the
prison administration”; he argued that prisoners ought to have the right to
call and cross-examine witnesses during disciplinary hearings that could
send them to solitary and cut their good time.343

339
340

Id. at 552 n.9.
Id. at 571 n.19. As Justice White explained,

Although the complaint put at issue the procedures employed with respect to the deprivation of
good time, under the Nebraska system, the same procedures are employed where disciplinary
confinement is imposed. The deprivation of good time and imposition of “solitary” confinement
are reserved for instances where serious misbehavior has occurred. This appears a realistic
approach, for it would be difficult for the purposes of procedural due process to distinguish
between the procedures that are required where good time is forfeited and those that must be
extended when solitary confinement is at issue. The latter represents a major change in the
conditions of confinement and is normally imposed only when it is claimed and proved that there
has been a major act of misconduct. Here, as in the case of good time, there should be minimum
procedural safeguards as a hedge against arbitrary determination of the factual predicate for
imposition of the sanction. We do not suggest, however, that the procedures required by today’s
decision for the deprivation of good time would also be required for the imposition of lesser
penalties such as the loss of privileges.
Id.
341
342
343

Id. at 557–58.
Id. at 581 (Marshall, J., concurring in part and dissenting in part).
See id. at 593–94 (Douglas, J., dissenting in part and concurring in the result in part).

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What Justice White did make clear was that prisoners had no
constitutional right to good time itself, which instead was a creature of state
law. Because Nebraska both provided for it and limited the grounds for its
withdrawal, process was due.344 However, Justice White commented that the
accommodations to both sides were not “graven in stone,” and that the door
was open to “further consideration” as changing circumstances warranted.345
Whatever his theory of liberty’s sources and thoughts about future
cases, Justice White’s Wolff opinion distinguished the “grievous loss” of
losing the status of parolee or probationer from the loss of good time, which
was not the “same immediate disaster” and might not “work any change in
the conditions of his liberty.”346 Furthermore, drawing on the picture
presented by state and federal governments, Justice White deemed crossexamination and confrontation too risky because prisoners “may have little
regard for the safety of others,” and an “unwritten code . . . exhorts inmates
not to inform on a fellow prisoner.”347 Countering arguments that hearings
could lower tensions and build collaboration, he invoked the “incorrigible,”
manipulative prisoner, the “personal antagonism[s]” that put “personal
safety” at risk, and rejected “encasing the disciplinary procedures in an
inflexible constitutional straightjacket”348 or imposing “unduly crippling
constitutional impediments.”349
Hence, the Court selected a few of the Morrissey v. Brewer procedures,
including advance written notice (in this context, at least twenty-four hours)
of the charges, an opportunity to speak and present witnesses, and a written
statement of reasons for the sanction.350 But unlike the Morrissey-Scarpelli
rules, the Court licensed prison staff to bar evidentiary presentations if they
believed that doing so would “create a risk of reprisal or undermine
authority” or be “unduly hazardous to institutional safety.”351 Moreover,
prisoners were not entitled to lawyers, but prisoners with limited abilities
were to have access to aid from staff or from other prisoners.352

344
345
346
347
348
349
350
351
352

Id. at 557 (majority opinion).
Id. at 571–72.
Id. at 560–61 (internal quotation marks omitted).
Id. at 562.
Id. at 562–63.
Id. at 566–67.
Id. at 564–66.
Id. at 566.
Id. at 570.

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Instead of using Justice White’s terms of “straitjacket[s]” and
“crippling” constitutionalization,353 the dissenters presented a picture of
prisoners in need of protection and cited evidence that the proposed
procedures were feasible. Justice Marshall, joined by Justice Brennan,
argued that the Court’s packet of procedures had hollowed out the “essential”
components of a defense: the right to present evidence, have witnesses
testify, and confront and cross-examine others.354 Citing the American Bar
Association survey of prison discipline proceedings, Justice Marshall argued
that the use in many jurisdictions of cross-examination countered the
Nebraska authorities’ “speculative fears.”355 Justice Douglas wrote
separately and provided a brief history of the inhumanity to prisoners,
invoked the 1970 Holt v. Sarver conclusion that an “entire prison system” in
Arkansas was so “inhumane” as to violate the Eighth Amendment, 356 and
identified the “unchecked power of prison administrators” as the “central
evil” that was the “problem that due process” procedures were to “cure.”357
Given the “threat of any substantial deprivation of liberty . . . such as solitary
confinement,” a “full hearing with all the due process safeguards” was
required.358
Within a year, Justice White wrote again for the Court in Baxter v.
Palmigiano to inscribe Wolff’s mandates as the “reasonable accommodation
between the interests of the inmates and the needs of the institution.”359 The
United States again provided an amicus filing, arguing against “any
particular set of inflexible rules.”360 The case raised the question of whether
the hearing officers could draw adverse inferences from a prisoner’s
declining to speak. Nicholas Palmigiano, held in a Rhode Island prison,
relied on the Fifth Amendment when, as advised to do so by his counselsubstitute, he stayed silent in a disciplinary hearing.361 The majority did not
353

Id. at 563, 566.
Id. at 581–83 (Marshall, J., concurring in part and dissenting in part, joined by Brennan, J.).
355
Id. at 589.
356
Id. at 599 (Douglas, J., dissenting in part and concurring in the result in part).
357
Id. at 596–99 (citations omitted).
358
Id. at 594.
359
425 U.S. 308, 324 (1976) (quoting Wolff, 418 U.S. at 572).
360
Brief for the United States as Amicus Curiae, Baxter v. Palmigiano, supra note 26, at *2–3.
361
Baxter, 425 U.S. at 312–13. The Court heard the case along with Enomoto v. Clutchette, id. at
308, a California case that had not been certified but which the district court improperly treated as a class
action and which had been brought by John Wesley Clutchette and George L. Jackson to require
California to revamp its disciplinary system at San Quentin. Id. at 310–11 & n.1. By the time the Supreme
Court heard the case, the named plaintiffs’ claims had been mooted. Id. at 310 n.1. Clutchette had been
paroled, and Jackson (the author of Soledad Brothers who, in 1971, was to be tried on charges of
murdering a prison guard) was killed in the prison yard. Id. See generally GEORGE L. JACKSON, BLOOD
354

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bar the staff from using his silence against him; further, it reiterated that no
rights to counsel existed in prison disciplinary hearings, prison officials
retained discretion to permit confrontation and cross-examination, and
adverse inferences could be drawn when prisoners declined to testify.362
Justice White had not addressed the underlying liberty interests,363
which was the centerpiece of the objections by Justices Brennan and
Marshall, who again concurred in part and dissented, with Justice Brennan
writing this time for them both. Justice Brennan explained that the only
evidence against Palmigiano came from written reports by the staff who filed
the charges; after Palmigiano’s silence and a five-minute deliberation, the
prison authorities sent him to thirty days in punitive segregation.364 Instead,
because liberty remained vital despite incarceration, the Court’s law on the
privilege outside of prison ought to have been applied and no adverse
inferences drawn from a person’s silence.365
Even with these limits, Wolff is one of several decisions that imposed
affirmative obligations on prison officials and made certain practices
“normal” artifacts of incarceration. Before the decision, as the ABA
reported, most prison systems had policies that called for some form of
process when imposing certain punishments. Since the ruling, all systems
must provide process when seeking to change the length of incarceration by
taking away good time. The volume of hearings both before and after Wolff
also provides a window into the breadth of regulation governing prisoners’
behavior. The government’s amicus brief in Wolff cited data from the Federal
Bureau of Prisons which, in 1973, housed more than 23,000 prisoners and
had conducted some “19,000 misconduct hearings.”366 (The brief did not
report what percentage resulted in prisoners being acquitted of the charges.)
California also filed an amicus that argued against cross-examination and

IN MY EYE (1990). An intervenor, Alejandro R. Ferrel, was stipulated as a named party and his individual

case proceeded. Baxter, 425 U.S. at 310 n.1.
362
Id. at 315–16, 321–22. The Court returned to the question of Miranda rights for the incarcerated
in Maryland v. Shatzer, 559 U.S. 98, 112–13 (2010), and in Howes v. Fields, 565 U.S. 499, 511 (2012),
each exploring what “in custody” meant for the incarcerated. In Howes, Justice Samuel Alito for the
majority concluded that the “ordinary restrictions of prison life, while no doubt unpleasant, are expected”
and did not involve the compulsion of being taken to a police station. Id. at 511 (citing Shatzer, 559 U.S.
at 103).
363
In the discussion of the case coming from the Ninth Circuit, the majority said that the record did
not make clear “the degree of ‘liberty’ at stake in loss of privileges” that was requisite to determining
what process was due, and hence its order could not stand. Baxter, 425 U.S. at 323.
364
Id. at 332 n.6 (Brennan, J., concurring in part and dissenting in part, joined by Marshall, J.).
365
See id. at 334–35.
366
Brief for the United States as Amicus Curiae, Wolff v. McDonnell, supra note 330, at *2–3.

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counsel in disciplinary hearings and reported that in 1973 its prisons
“averaged over 50 disciplinary hearings every day of the year.”367
More than fifty years later, statistics provided by Oregon painted a
comparable picture of a huge number of hearings conducted annually. In
2018, Oregon incarcerated more than 14,000 people and had a dedicated
group of hearing officers charged with overseeing in-prison disciplinary
hearings.368 The state concluded that in approximately 13% of the more than
10,000 disciplinary hearings it conducted, hearing officers dismissed the
charges against the prisoner.369
b. The adverse impacts of transfers
In the years after Wolff, Justice White’s limited approach to prisoners’
liberty hardened as the Court’s membership shifted along with national
politics, in which popular officials championed being “tough on crime.”370
More Justices evidenced anxiety about prisons and too many prisoner filings,
demonstrated minimal concern about racial discrimination, and evidenced
no appreciation for the experiences of incarcerated individuals. As Linda
Greenhouse and Michael Graetz explained, “Equality took a backseat to
other values” under the Burger Court, which prized “the prerogatives of
states and localities . . . the efficiencies of the criminal justice system . . .
[and] rolling back the rights revolution” of the Warren Court.371 The result
was that the Supreme Court reshaped its doctrine to conclude that conviction
and incarceration extinguished most of an individual’s liberty interests.372
Soon after Wolff, the Supreme Court addressed decisions by prison
officials to transfer incarcerated individuals from one facility to another. The
issue was framed through two cases involving prisoners caught up in unrest
at facilities in New York and Massachusetts. The uprising at Attica Prison in

367

Brief of Evelle J. Younger, Attorney General of the State of California, Amicus Curiae, Wolff v.
McDonnell, supra note 330, at 10 n.9.
368
Telephone Interview with Melissa D. Nofziger, Assistant Inspector Gen. for Hearings, Or. Dep’t
of Corr. (Nov. 15, 2019); E-mail from Melissa D. Nofziger, Assistant Inspector Gen. for Hearings, Or.
Dep’t of Corr., to Judith Resnik, Arthur Liman Professor of Law, Yale Law Sch. (Nov. 18, 2019, 11:05
AM PST) (on file with authors).
369
Telephone Interview with Melissa D. Nofziger, supra note 368; E-mail from Melissa D. Nofziger,
supra note 368.
370
See generally MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS (2015); ELIZABETH HINTON, FROM THE WAR ON POVERTY TO THE WAR ON CRIME
(2016).
371
MICHAEL J. GRAETZ & LINDA GREENHOUSE, THE BURGER COURT AND THE RISE OF THE
JUDICIAL RIGHT 341 (2016).
372
See, e.g., Shaw v. Murphy, 532 U.S. 223, 229 (2001); Sandin v. Conner, 515 U.S. 472, 487
(1995).

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upstate New York took place in September 1971.373 Within the year, prison
officials at Attica removed Rodney Haymes from his job at the prison law
library. Two days after Haymes had helped eighty-two prisoners circulate a
document that was addressed to a federal judge and that protested his
removal, New York transferred him to Clinton Correctional Facility
hundreds of miles further from his home in Buffalo.374
Chief Judge Irving Kaufman, writing for the Second Circuit, catalogued
the impact of the transfer. Clinton was “several hundred miles farther away
from Haymes’s home in Buffalo,”375 which meant being far from family and
his lawyer, and the loss of educational and other programs underway.
Further, a “real hardship” came from “being shuttled from one institution to
another,” even if both were labeled maximum security.376 On arrival,
individuals were put into administrative segregation (a form of solitary
confinement) and upon release were in a new and complex environment;
moreover, the process of transfer could result in a deprivation of healthcare
and medications.377
Given the risk of being punished “at the whim of those charged” to
control their confinement, the court concluded that prisoners merited
protection.378 Reversing the trial court’s rejection of Haymes’s pro se
complaint was proper because “[w]hen harsh treatment is meted to
reprimand, deter, or reform an individual, elementary fairness demands that
the one punished be given a satisfactory opportunity to establish that he is
not deserving of such handling.”379 The Second Circuit remanded for factfinding on whether the transfer was punitive and on the impact of the
transfer.380
The First Circuit issued a parallel ruling in 1975; prison officials at a
medium-security facility, the Massachusetts Correctional Institution at
Norfolk, transferred Arthur Fano and five other prisoners to a maximumsecurity facility. The prompt for reclassification was “unrest,” which
373

N.Y. STATE SPECIAL COMM’N ON ATTICA, supra note 324, at xi.
United States ex rel. Haymes v. Montanye, 505 F.2d 977, 977–78, 982 (2d Cir. 1974), rev’d
judgment sub nom. Montanye v. Haymes, 427 U.S. 236 (1976). The document stated that individuals
were “deprived of legal assistance” because of the removal of Haymes and another prisoner, and as a
result, “constitutional rights to adequate access to the courts” were violated. Montanye, 427 U.S. 236, 237
& n.1 (1976). Prison officials took the document. Id. at 238.
375
Haymes, 505 F.2d at 978.
376
Id. at 981–82.
377
Id. at 982.
378
Id. at 977, 981.
379
Id. at 980–82. The Second Circuit did not address the access-to-courts issue. Id. at 982.
380
See id.; Montanye v. Haymes, 427 U.S. 236, 240 (1976).
374

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included a series of fires at Norfolk.381 The basis for the transfer decision was
information from informants that had not been disclosed to the prisoners at
their reclassification hearings.382 As the First Circuit explained, whether the
decision was termed “classification” for institutional order or “discipline”
imposed as punishment, the impact was the same.383 At the higher level
facility, the conditions were “substantially more adverse” in terms of
programs, furloughs, and effects on parole.384
What was the process due? The First Circuit had already ruled that
interstate transfers required procedural protections.385 In Fano v. Meachum,
the First Circuit also concluded that the intrastate transfers imposed “a
significant modification of the overall conditions of confinement” that
affected prisoners’ liberty and therefore required procedural protection.386 At
least a summary of the basis for the decision had to be provided, as well as
adequate notice of the charges leveled.387
Before the Supreme Court, the two cases (heard together in April of
1976) intersected with an ongoing debate in the Court about whether due
process protections were required in a variety of circumstances, such as when
state officials make decisions relating to school children,388 to state
employees,389 to beneficiaries of benefit programs,390 and to holders of state
licenses,391 as well as to prisoners. The predicate insight that some process
was due stemmed from a 1964 article by Charles Reich, who identified how
government power both created forms of property—through the provision of
licenses, contracts, benefits, and franchises—and made holders of this “new
property” vulnerable to arbitrary state power.392 Justice Brennan embraced
those ideas in the Court’s 1970 decision Goldberg v. Kelly, which recognized
381

Fano v. Meachum, 520 F.2d 374, 376, 377 & n.3 (1st Cir. 1975).
Id. at 376.
383
Id. at 376 n.2
384
Id. at 378 (quoting Fano v. Meachum, 387 F. Supp. 664, 667 (D. Mass. 1975)).
385
See Gomes v. Travisono, 490 F.2d 1209, 1211, 1215–16 (1st Cir. 1973). In 1983, the U.S.
Supreme Court concluded that the Constitution does not protect prisoners from interstate transfers even
when a person was sent from Hawaii to California. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983).
386
520 F.2d at 378–79.
387
Id. at 379–80.
388
Goss v. Lopez, 419 U.S. 565, 567 (1975).
389
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 566–69 (1972).
390
Goldberg v. Kelly, 397 U.S. 254 (1970); Mathews v. Eldridge, 424 U.S. 319 (1976).
391
Bell v. Burson, 402 U.S. 535, 535–37 (1971). The Court held that the State of Georgia could not
deprive someone of their driver’s license and vehicle registration before providing an opportunity to
determine “whether there is a reasonable possibility of a judgment being rendered against him as a result
of the accident.” Id. at 542–43.
392
Charles A. Reich, The New Property, 73 YALE L.J. 733, 733, 783–84, 787 (1964).
382

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the “grievous loss” that termination of welfare benefits entailed and held that,
prior to termination of benefits, governments had to provide due process
protections including an in-person oral hearing.393
But two months before the hearings in the prison transfer cases, the
Court had retreated from its approach in Goldberg. In February 1976, when
addressing the termination of disability benefits in Mathews v. Eldridge, the
Court held that post-termination hearings sufficed.394 Justice Powell’s
majority opinion in Mathews shifted the focus away from the experiences
and the impact of decisions on those affected (their “grievous loss”) and onto
the interests of governments in conserving costs when making decisions. The
majority did not address the mandate from Congress that administrators treat
like cases similarly, nor concerns about the need to respect the dignity of
individuals in their encounters with the state.395
In Mathews, the U.S. government had conceded that disability benefits
were a statutory entitlement and that some process was due. In contrast, in
the arguments held on April 21, 1976 in Haymes and in Meachum, New York
and Massachusetts, joined by California and the federal government,
contended that no “liberty” or “property” interests existed when they moved
prisoners to higher security settings and hence that officials had no
constitutional obligation to provide any process at all.396 As Solicitor General
Robert Bork’s amicus briefs in both Montanye v. Haymes and Meachum v.
Fano argued, the decisions made by the Federal Bureau of Prisons relating

393
397 U.S. at 263 (citation omitted). The history of the litigation and its impact on constitutional,
administrative, and property law are discussed in MARTHA F. DAVIS, BRUTAL NEED: LAWYERS AND THE
WELFARE RIGHTS MOVEMENT, 1960–1973, at 99–118 (1993), and Judith Resnik, The Story of Goldberg:
Why This Case Is Our Shorthand, in CIVIL PROCEDURE STORIES 473–508 (Kevin M. Clermont ed., 2d
ed. 2008) [hereinafter Resnik, The Story of Goldberg], and in legions of other books and articles.
394
424 U.S. at 349.
395
See Jerry L. Mashaw, The Supreme Court’s Due Process Calculus for Administrative
Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REV.
28, 42–45, 54 (1976).
396
Brief for the United States as Amicus Curiae, Meachum v. Fano, 427 U.S. 215 (1976) (No. 75252), 1976 WL 181738, at *3–11 [hereinafter Brief for U.S. in Meachum]; Brief of the State of California
Amicus Curiae in Support of Petitioners, Montanye v. Haymes, 427 U.S. 236 (1976) (No. 74-520),
1975 WL 173435, at *3 [hereinafter Brief of California in Montanye]; Brief for the United States as
Amicus Curiae, Montanye v. Haymes, 427 U.S. 236 (No. 74-520), 1975 WL 173434, at *7–14
[hereinafter Brief for U.S. in Montanye].

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to the placement or transfers of the 16,529 individuals committed in fiscal
year 1975 to federal custody397 were “completely discretionary.”398
California, which reported that it had transferred more than 30,000 men
between fiscal years 1974 and 1975,399 likewise argued that the federal
Constitution had no role to play. The State asserted that the transfer of
prisoners was “a critical component in the achievement of the objectives of
the correctional system.”400 Such movement was “not solely a means for
achieving the most economic utilization of available facilities and staff [but
also] a process [to achieve] the dual objectives of security and
rehabilitation.”401 California further argued that when “the needs and desires
of a particular inmate” were in tension with the “welfare and security of the
correctional system as a whole,” correctional staff ought to be tasked with
making the “difficult” determination of how to best accommodate
conflicting objectives.402
Yet the State’s own materials acknowledged what the lower courts in
Haymes and Meachum had understood: prison authorities had the power to
make the experience much worse, and constraints on staff authority were
needed. One subpart of California’s regulation, which the State put before
the Supreme Court, was labeled “Fairness Procedures.”403 The obligation to
provide fair process was, under California’s rules, triggered when the State
sought to impose what it termed a “Substantial Adverse Effect,” defined to
include the “[t]ransfer to another institution for the purpose of providing
more restrictive custody,” as well as increasing custody levels and placement
in a “security housing unit.”404
The oral argument and notes from the Supreme Court Justices’ papers
reveal the anxiety occasioned by the potential impact of the proposition that
the Constitution required fair hearings for transfers. The Justices offered
397
Brief for U.S. in Montanye, supra note 396, at *1–4 (arguing that the outcome of the case would
have a “substantial impact” on the procedures used to assign, classify, and transfer people in federal
custody); see also Brief for U.S. in Meachum, supra note 396, at *2–3 (arguing that the interest in the
case is similar to that presented in the United States’ amicus curiae brief in Montanye and adding that the
questions raised in Meachum about transferring custody level was of special interest to the United States
given that the Federal Bureau of Prisons relies on custody level for classification and transfer).
398
Brief for U.S in Montanye, supra note 396, at *10; Brief for U.S. in Meachum, supra note 396,
at *13.
399
Brief of California in Montanye, supra note 396, at *1.
400
Id. at *2.
401
Id.
402
Id.
403
Id. app. at *2a.
404
Id. app. at *3a. The rules also authorized actions on “a temporary emergency basis when necessary
without prior notification.” Id.

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hypotheticals that ignored the State’s punitive intent (on which the Second
Circuit had focused) and the impact of transfer (central to the analysis of the
First Circuit). Instead, the Justices imagined prisoners complaining about
what the Justices evidently thought were not important aspects of
confinement; these Justices imagined lower court judges unable or unwilling
to differentiate among forms of injury.
Then-Justice Rehnquist posited: “Supposing the man stays at Walpole,
but they’ve had a bad time at Walpole, so [prison officials] decide that
instead of getting one hour’s exercise in the afternoon, you’re only going to
get half an hour, you’re only going to get two meals a day, the whole
population.”405 In conference, Chief Justice Warren Burger used the example
of whether “any move—even from a cell on south side of prison to north
side” would suffice as an impingement on liberty requiring a due process
hearing.406
A typed memorandum from Justice Blackmun (and written before the
argument on April 13, 1976) provided a fuller account of his concerns about
the extent of judicial oversight of prison officials’ decisions. Justice
Blackmun explained that when he was on the Eighth Circuit, he had initially
assumed that “the administration of a prison was the state’s business” but
that he had come to recognize that prisoners had constitutional rights “to be
safe, to be free of cruel and unusual punishment, to be fed and the like.”407
(Justice Blackmun’s memo did not mention that he had authored the
landmark decision of Bishop v. Jackson, holding in 1968 that whipping of
prisoners by Arkansas prison staff was unconstitutional.408)
Justice Blackmun said he found “it exceedingly difficult to draw lines
between original placement in a custodial atmosphere and secondary
placement. If the one is the decision for the prison administrator,” the second
would be too, even if a transfer was “somewhat punitive in nature.”409
However, “there is a limit;” if a transfer affected “rehabilitation or parole,”
then “some kind of minimal due process procedurally is due.”410 Yet despite

405
Transcript of Oral Argument at 41, Meachum v. Fano, 427 U.S. 215 (1976) (No. 75-252)
[hereinafter Meachum v. Fano Oral Argument].
406
Lewis F. Powell, Jr. Papers, Box 427/Folder 16-17, at 27, available at
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1768&context=casefiles
[https://perma.cc/32ZK-MNG6].
407
Harry Blackmun Papers, Meachum v. Fano file, at 9 (housed at the Library of Congress)
(photocopy on file with authors).
408
404 F.2d. 571, 579 (8th Cir. 1968).
409
Harry Blackmun Papers, supra note 407, at 9–10.
410
Id. at 10.

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those concerns, Justice Blackmun joined the two majority opinions that
imposed no limits on correctional officials’ authority over prison transfers.
Both decisions, filed in June 1976, were written by Justice White, and
both reversed the judgments below. In Montanye v. Haymes, the Court held
that while “state law” or the Constitution could provide “some right or
justifiable expectation,”411 “no Due Process Clause liberty interest of a duly
convicted prison inmate is infringed when he is transferred from one prison
to another within the State.”412 Meachum v. Fano explained that even as “life
in one prison” could be “much more disagreeable than in another,” those
differences did not suffice to implicate Fourteenth Amendment liberty
interests, nor did “any [other] substantial deprivation imposed by prison
authorities.”413
Why? The Court answered with a Delphic reference to practices it
deemed to be “normally incident to a criminal conviction”414 and created the
formulation: “As long as the conditions or degree of confinement . . . [do not
exceed those normally incident to a criminal conviction and are] not
otherwise violative of the Constitution, the Due Process Clause does not in
itself subject an inmate’s treatment by prison authorities to judicial
oversight.”415
Justice Stevens, joined by Justices Brennan and Marshall, dissented in
both cases.416 Their disagreement centered not on the State’s needs but on
people’s liberty. In Meachum, Justice Stevens wrote that the majority had
described liberty as stemming either from the Constitution or from state
law.417 Justice Stevens countered that “[i]f a man were a creature of the State,
411

427 U.S. 236, 242 (1976).
Id.; see also Meachum v. Fano, 427 U.S. 215, 224–25 (1976). Although some of the Court’s case
law had acknowledged the role played by individuals’ “expectations” in entitlement theory, the Court
came to require finding sources in positive law, such as statutes. Later, the Court held that even when
state statutes or regulations recognized prisoners’ interests, such as in visits, state provisions did not
necessarily create interests that required federal due process protections before their infringement. See
Kentucky v. Thompson, 490 U.S. 454 (1989). See generally Thomas C. Grey, Procedural Fairness and
Substantive Rights, in 18 NOMOS: DUE PROCESS 182 (J. Roland Pennock & John W. Chapman eds.,
1977); Reich, supra note 392; Resnik, The Story of Goldberg, supra note 393.
413
427 U.S. at 225. The majority distinguished Wolff v. McDonnell as predicated on state-based
statutory rights to good time, which generated the liberty interest that required due process protections.
Id. at 225–26.
414
Letter from Chief Justice Rehnquist to Justice White (June 3, 1967) (on file with authors).
415
Montanye, 427 U.S. at 242. Justice Stevens (joined by Justices Brennan and Marshall) dissented;
he argued that the pro se complaint had also alleged a claim of punishment for helping individuals
communicate with courts and that, under liberal pleading rules, the decision should be remanded to the
district court. Id. at 244–45 (Stevens, J., dissenting).
416
Id.; Meachum, 427 U.S. at 229–35 (Stevens, J., dissenting).
417
Meachum, 427 U.S. at 230 (Stevens, J., dissenting).
412

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the analysis would be correct.”418 He disagreed. The Constitution was not the
source of “individual liberty,” which was “one of the cardinal unalienable
rights,” but rather of its protection against government infringement.419 He
reiterated what he had said in a 1973 Seventh Circuit decision, that
“‘[l]iberty’ and ‘custody’ are not mutually exclusive concepts.”420 If,
however, prisoners’ protected interests were “no greater than the State
chooses to allow, he is really little more than the slave described in the 19th
century cases.”421 Instead, prisoners retained “an unalienable interest in
liberty—at the very minimum the right to be treated with dignity—which the

418

Id.
Id. Some commentators attribute Justice Stevens’s concerns for individuals in conflict with the
state to his and his family’s work history. After the Depression, some of his relatives were accused of
embezzling funds to deal with debts from a hotel they had owned in Chicago. His father’s conviction was
overturned by the Illinois State Supreme Court. People v. Stevens, 193 N.E. 154, 156, 160 (Ill. 1934).
Further, in 1969 Justice Stevens gained public attention when he was the chief investigator into corruption
at the Illinois Supreme Court, from which two justices resigned. See Christopher E. Smith, Justice John
Paul Stevens and Capital Punishment, 15 BERKELEY J. CRIM. L. 205, 215–19 (2010).
420
Meachum, 427 U.S. at 232 (citing United States ex rel. Miller v. Twomey, 479 F.2d 701, 712 (7th
Cir. 1973)). His Seventh Circuit opinion in Twomey cites Morales v. Schmidt, 489 F.2d 1335, 1338 (7th
Cir. 1973), modified on reh’g en banc, 494 F.2d 85 (7th Cir. 1974). However, in Morales, Justice (then
Judge) Stevens was in dissent from a March 1973 Seventh Circuit decision reversing a district court
injunction against limits on correspondence between a prisoner and his sister-in-law. Id. at 1344 (Stevens,
J., dissenting). The majority decision, explaining that “[t]he Constitution provides no clear answer to
federal courts seeking to determine the civil rights of state prisoners,” cited the texts of the Thirteenth and
Fourteenth Amendments, cordoning off rights for those who are “duly convicted,” as well as explicating
a growing body of commentary and law on “prisoners’ rights.” Id. at 1337–39 (majority opinion)
(emphasis omitted). While courts ought to be “hesitant” to be involved in daily operations, they could not
“abdicate [their] responsibilities” to “determine the constitutional rights of a convicted person.” Id. at
1342. Because the lower court had looked to a “compelling state interest,” rather than a “rational
relationship,” for the restriction, the injunction could not stand. Id. at 1343–44. In contrast, Justice Stevens
found that abridgement of First Amendment rights requires “a heavier burden of justification.” Id. at 1348
(Stevens, J., dissenting). The en banc decision permitted the injunction that had been in effect to remain,
pending remand for more fact-finding given the passage of time. Morales v. Schmidt, 494 F.2d 85, 87
(7th Cir. 1974) (en banc). Justice Stevens, joined by two others, concurred to explain the burden on the
state to limit communication. Id. at 87–88 (Stevens, J., concurring).
The case from which Justice Stevens took the quoted sentence was United States ex rel. Miller v.
Twomey, 479 F.2d at 712. Twomey—issued in May of 1973, two months after Stevens’s initial dissent in
Morales—considered the disciplinary rules in Illinois’s prisons. Unrepresented prisoners alleged loss of
good time and placement in solitary confinement for an array of offenses, including fifteen days in
isolation for “sending a letter to an ex-inmate in an illegal way.” Id. at 703, 706. Justice Stevens read the
Court’s Morrissey decision to mean “that due process precede any substantial deprivation of the liberty
of persons in custody.” Id. at 713. His opinion recognized the “sufficient contrast between the privileges
associated with membership in the general prison population and the severe restraints resulting from
‘segregation’” and concluded that “prolonged segregated confinement” constituted a “grievous loss” for
which some procedural protections were required, albeit not always a hearing before isolation nor all the
Morrissey processes. Id. at 717–18 (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
421
Meachum, 427 U.S. at 233 (Stevens, J. dissenting).
419

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Constitution may never ignore.”422 When prisoners suffered a “grievous
loss,” which included placement in solitary confinement or transfers to
“equally disparate conditions between one physical facility and another,”
protection from arbitrary decisions should have been required.423
c.

Segregation through administrative placements, discipline,
and exile
In the years thereafter, the Court selected cases through which it
continued to narrow prisoners’ opportunities to have buffers against
decisions that made more adverse the conditions of their confinement. The
Court took up transfers to out-of-state prisons and placement into isolation
falling under two labels—“administrative segregation,” which is justified on
managerial needs and could be a way station (pending decisions on discipline
or classification) or could be the basis for a long stay in solitary confinement,
and “disciplinary segregation,” which frankly imposes isolation as a
punishment. That distinction was often irrelevant in practice. As the State
Bar of Michigan’s Prisons and Corrections Committee told the Court in
1982, whether called “administrative confinement” or “administrative
segregation,” what was “involved . . . is being placed in the ‘hole.’”424
Furthermore, by 1972, the corrections profession had commended prisons
hold hearings before “[s]evere penalties, such as forfeiture of good time or
extended confinement in punitive segregation” were imposed.425
Reflecting both prisoners’ experiences and standards promulgated by
the American Corrections Association, lower courts identified prisoners’
liberty interests in avoiding more adverse confinement and required some
process.426 In contrast, the Supreme Court—in majority decisions often
written by Chief Justice Rehnquist—repeatedly reversed as the majority
stiffened its commitment to incarceration eradicating most of prisoners’
liberty interests.427 Thus, even as the Court has recognized that prisoners
422

Id.
Id. at 234–35. Justice Stevens noted that individuals whom Massachusetts had transferred had
suffered such losses, including a reduction in income and separation from a counselor. Id. at 235 n.8.
424
Brief for the State Bar of Michigan, Prisons & Corrections Committee as Amicus Curiae
Supporting Affirmance, Hewitt v. Helms, 459 U.S. 460 (1983) (No. 81-638), 1982 WL 608431, at *6 n.1.
425
Brief of the Petitioners at 29, Wolff v. McDonnell, 418 U.S. 539 (1974) (No. 73-679), 1974 WL
187450, at *29 (citing ASS’N OF STATE CORR. ADM’RS, UNIFORM CORRECTIONAL POLICIES AND
PROCEDURES 12–15 (1972)).
426
See, e.g., Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993), rev’d sub nom. Sandin v. Conner,
515 U.S. 472 (1995); Helms v. Hewitt, 655 F.2d 487 (3d Cir. 1981); Wakinekona v. Olim, 664 F.2d 708
(9th Cir. 1981).
427
See, e.g., Sandin, 515 U.S. 472; Hewitt v. Helms, 459 U.S. 460 (1983); Olim v. Wakinekona,
461 U.S. 238 (1983).
423

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retained some kinds of liberty (such as the right to marry428), the Court ruled
that protection against being shipped thousands of miles away from one’s
home or placed in twenty-four-hour-a-day isolation for weeks and months
on end did not survive incarceration. This sequence of decisions generated
the current test for procedural protections for people placed in solitary
confinement.
The events undergirding the next key Supreme Court decision took
place in 1978, when Pennsylvania prison officials put Aaron Helms in fiftyone days of “restrictive custody status”; Helms alleged that the State had not
complied with its own regulations or what the Constitution then required.429
At oral argument, Helms’s attorney described the confinement as “almost 24
hours a day” with “between five and ten minutes” for exercise a few times a
week, “virtually nonexistent” access to showers for almost two months, and
no access to any activities.430 The prompt for such isolation was a “general
disturbance,” and the question was what role, if any, Helms had played.431
The State took the position that it had no obligation to provide any process
for what it termed an administrative decision to confine Helms pending an
investigation.432
As the Third Circuit, writing in 1981, then understood Supreme Court
precedent, liberty could be predicated on state statutes or regulations, such
as those that delineated the conditions for welfare benefits, tenured
employment, and good-time credits.433 In addition, albeit “less easily
defined,” liberty could come from the Constitution or, if a “natural right,” be
protected by the Constitution.434 And, in this case, Pennsylvania had
regulations that set forth the criteria for transfers into administrative
segregation.435 Given the “important rights” at stake, and the fact that the

428

See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987).
Helms, 655 F.2d at 489, 491.
430
Transcript of Oral Argument at 21, 26, Hewitt v. Helms, 459 U.S. 460 (1983) (No. 81-638); see
also Hewitt, 459 U.S. at 467 n.4; id. at 480 n.1 (Stevens, J., dissenting).
431
Helms, 655 F.2d at 489–91. The appellate court noted the “tensions and strains” and “intense
personal antagonisms” of prison life, and that information from an “unidentified informant” could result
in a decision of guilt based on “trumped up charges.” Id. at 502.
432
Id. at 496–97.
433
Id. at 493.
434
Id. at 493–94 (citing Vitek v. Jones, 445 U.S. 480, 488 (1980)). Vitek was about the transfer of a
prisoner to a mental hospital, and the Court focused on the “grievous loss” and “stigma[]” of such a
change. 445 U.S. at 488.
435
The State had argued that the regulations were “guidelines” that aimed to “promote some
uniformity” among the various state institutions and accountability for wardens, and that if such guidance
became the predicate for “time-consuming, expensive and inefficient procedures,” the State might repeal
429

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State had created rules that conferred a “protectable liberty interest,” Wolff
v. McDonnell’s procedural protections applied; moreover, a “conviction”
could not rest solely on “a hearsay report of an unidentified informant[].”436
In 1983, Chief Justice Rehnquist wrote for the Court to protect the
“discretionary authority” of correctional officials to manage their institutions
by delineating a “limited range of interests” that fell under the Fourteenth
Amendment’s protection.437 Prisoners had what he labeled “basic liberty
interests” and therefore were only protected from the states imposing
conditions or degrees of confinement that went beyond the prisoner’s
sentence.438 A “significant modification in conditions,” even when a
“grievous loss,” did not fall within the “basic liberty” retained, and hence no
“judicial oversight” was required, not even when a person was put in “less
amenable and more restrictive quarters for nonpunitive reasons.”439
But, because Pennsylvania had rules detailing the criteria for transfers
into administrative segregation, Helms had a “protected liberty interest in
remaining in the general prison population.”440 Therefore, the Constitution
required procedural protection. Nonetheless, no more process was due than
what Helms had received. As Chief Justice Rehnquist put it, Helms “was
merely transferred from one extremely restricted environment to an even
more confined situation,” and the State was concerned about institutional
safety.441 Therefore, the “informal, nonadversary evidentiary review” which
Pennsylvania provided sufficed.442
them. Brief for Petitioners, Hewitt v. Helms, 459 U.S. 460 (1983) (No. 81-638), 1982 WL 608424, at
*17.
Pennsylvania’s regulations were an artifact of a consent decree in Imprisoned Citizens Union v.
Shapp. See Consent Decree at 2–4, Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893 (E.D. Pa. 1978)
(Nos. 70-3054, 71-513, 71-1006 & 70-2545) (on file with authors). Litigation in that case also resulted in
a 1978 ruling that, while “grim and cheerless,” conditions in the nine cells on “Death row” at Graterford
Prison did not violate the Eighth Amendment, but three maximum security cells, known as the “Glass
Cage[s],” at Huntingdon did, as they were “dark, dirty,” and “a serious threat to the physical and mental
well-being” of anyone held there. See Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893, 897–98
(E.D. Pa. 1978). As discussed supra note 264, the 2019 settlement in Reid v. Wetzel required altering
conditions for people serving capital sentences in Pennsylvania. A 1998 decision terminating the consent
decree under the Prison Litigation Reform Act discussed the settlement’s amendments in 1983 addressing
prisoner “misconduct proceedings.” See Imprisoned Citizens Union v. Shapp, 11 F. Supp. 2d 586, 592,
594–95 (E.D. Pa. 1998).
436
Helms, 655 F.2d at 494, 503.
437
Hewitt v. Helms, 459 U.S. 460, 466–67 (1983).
438
Id. at 467–68.
439
Id.
440
Id. at 469–72.
441
Id. at 472–73.
442
Id. at 476.

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The four concurring Justices demurred on the majority’s account of
liberty’s parameters and the process due. Justice Blackmun described a
“residuum of liberty” that prisoners possessed, beyond what positive state
law provided.443 However, because the transfer was within what he styled
“the normal limits or range,” that liberty was not infringed.444 Yet, given that
state law had created a liberty interest, Pennsylvania’s procedures did not
adequately protect it. Justice Stevens, joined by Justices Marshall, Brennan,
and Blackmun (on process), agreed on the procedural failures but had a
different theory of liberty that was not tied to state law. Justice Stevens
insisted that the Court in Wolff had recognized liberty rights independent of
the Constitution and reiterated, and quoted, his view in Meachum that liberty
predated the Constitution.445 Citing Ronald Dworkin’s discussion of John
Stuart Mill and the significance of “independence,”Justice Stevens pointed
to the “grievous change in a prisoner’s status,” in that Helm was placed in
“grossly more onerous” conditions when he was held in solitary
confinement.446
Two years later, the question returned to the Court when Hawaii
transferred Delbert Wakinekona to a prison in California.447 The number of
government amici protesting the Ninth Circuit’s decision that required
process attested to the anxiety of the correctional establishment about losing
its unilateral authority to move people.448 The majority, in a decision by
Justice Blackmun, responded by holding that neither the U.S. Constitution
nor state regulations recognized Wakinekona’s liberty in incarceration
within his home state, and therefore no process was due.449
Although fewer than 3% of Hawaii’s prisoners were moved out of state
in 1979, Justice Blackmun invoked the concept of the “normal” as he quoted
Meachum to describe transfers anywhere in the state or country as “within
the normal limits or range of custody” that flowed from convictions.450 In

443

Id. at 478 (Blackmun, J., concurring in part and dissenting in part).
Id. (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)).
445
Id. at 479, 482–83 (Stevens, J., dissenting) (quoting Meachum, 427 U.S. at 230 (Stevens, J.,
dissenting)).
446
Id. at 484–88 (internal quotation marks omitted).
447
Olim v. Wakinekona, 461 U.S. 238, 240 (1983).
448
See id. at 246–47. Amicus briefs were filed by attorneys general for two dozen states. See, e.g.,
Amicus Brief of the Commonwealth of Massachusetts & Sister States, Olim v. Wakinekona, 461 U.S.
238 (1983) (No. 81-1581); Brief of the States of Alaska et al. in Support of Petitioners, Amici Curiae,
Olim v. Wakinekona, 461 U.S. 238 (1983) (No. 81-1581).
449
Wakinekona, 461 U.S. at 251.
450
Id. at 247 (quoting Meachum, 427 U.S. at 225). The data on the number of people transferred
outside Hawaii were provided in Justice Marshall’s dissent. Id. at 254 (Marshall, J., dissenting).
444

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NORTHWESTERN UNIVERSITY LAW REVIEW

dissent, Justice Marshall, joined by Justices Brennan and Stevens, again
argued that prisoners’ liberty was not an artifact of the Constitution but
protected by it. Justice Marshall protested the “banish[ment]” of
Wakinekona, who, “possibly [for] the rest of his life,” would be separated by
“nearly 2,500 miles of ocean” from family and friends.451
Whatever the ambiguities about the punitive intent or impact of
transfers that governments sometimes characterized as “administrative”
rather than punitive, in 1995 the Court directly addressed prisoners’ rights to
process when states aimed to punish them with transfer. At issue was the
thirty-day solitary confinement of Demont Conner, another Hawaii prisoner.
According to the Petition for Writ of Certiorari filed by state officials,
Conner was stopped in 1987 and strip searched when he left his cell to attend
a program area.452 One officer “asked him to step back, bend over and with
both hands spread his buttocks . . . [to] check for contraband in the rectal area
to which [Conner] said ‘Fuck!’ in an angry tone of voice.”453 Conner asked
the officer, “Why are you harassing me?”454 Prison officials responded by
cancelling what they described as Conner’s “privilege of religious
counselling”455 and, after an abbreviated hearing based on the record with no
witnesses testifying, sending Conner into isolation.456
Conner challenged the underlying treatment and the discipline, and the
Ninth Circuit agreed that Hawaii provided constitutionally insufficient
process when it disciplined Conner and denied him access to the law library
or other forms of legal assistance. Conner could therefore pursue his claims
“that he was punished for praying aloud in Arabic with a fellow inmate.”457

451

Id. at 252–53.
Petition for Writ of Certiorari at 7, Sandin v. Conner, 515 U.S. 472 (1995) (No. 93-1911).
453
Id.
454
Id.
455
Id.
456
Sandin, 515 U.S. at 475–76, 488. Conner was charged in a prison disciplinary proceeding “with
‘high misconduct’ for using physical interference to impair a correctional function, and ‘low moderate
misconduct’ for using abusive or obscene language and for harassing employees.” Id. at 475. Conner was
present at the hearing and contested all charges, but no prison staff testified at the hearing and the
committee relied entirely on the officers’ written statements. Conner was not permitted to call staff
witnesses. Id. at 488 (Ginsburg, J., dissenting).
457
Conner v. Sakai, 994 F.2d 1408, 1410 (9th Cir. 1993), opinion amended and superseded, 15 F.3d
1463 (9th Cir. 1993), rev’d sub nom. Sandin v. Conner, 515 U.S. 472 (1995), and amended in part,
vacated in part, 61 F.3d 751 (9th Cir. 1995).
452

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The Supreme Court granted review to address whether and what process was
due when prison officials disciplined prisoners.458
Once again, the Justices’ questions at oral argument offered
hypotheticals far afield from what the record reflected had happened to
Conner. For example, Justice Sandra Day O’Connor asked if prisoners could
invoke the Due Process Clause “when the prison decides somebody’s too
much of a risk to have a tray with a hot lunch” and gets a “sack lunch”
instead,459 or whether “not allowing prisoners to watch violent television
programs” would be “stuff” that prisoners would bring to federal court.460
The oral argument forecast the result. For the majority, Chief Justice
Rehnquist stepped back from the Court’s reading of Pennsylvania’s
regulations in Hewitt v. Helms and held that neither Hawaii prison
regulations nor the Due Process Clause “afforded Conner a protected liberty
interest” that required procedural protections before placement in
disciplinary segregation.461 Moreover, the Court expressly disavowed the
“dicta” Conner had cited: that “freedom from punitive segregation for
serious misconduct implicates a liberty interest.”462
Rather, the “regime” of disciplinary segregation fell “within the range
of confinement to be normally expected for one serving an indeterminate
term of 30 years to life”463 (whose “normal” expectations were neither
defined nor sourced). While the discipline was “punitive,” it was not “a
dramatic departure from the basic conditions of” the sentence,464 and it would
not “inevitably affect the duration of his sentence.”465 Although some
ambiguity exists given that the Court referenced state law, its discussion
identified a constitutionally protected interest when the three factors
(conditions, duration, and effect on release) were combined. As a matter of
federal constitutional liberty protections, process was due when prisons
imposed an “atypical and significant hardship on the inmate in relation to the

458
Sandin v. Conner, 513 U.S. 921 (1994) (granting certiorari but “limited to Question 1 presented
by the petition”); see Petition for Writ of Certiorari at *i, Sandin v. Conner, 515 U.S. 472 (1995) (No. 931911).
459
Transcript of Oral Argument at 32, Sandin v. Conner, 515 U.S. 472 (1995) (No. 93-1911)
[hereinafter Transcript of Oral Argument, Sandin v. Conner]. Justice Breyer discussed this issue of linedrawing in his dissent, stating that it seemed possible for judges to use their judgment “to separate less
significant matters . . . from more significant matters.” Sandin, 515 U.S. at 500 (Breyer, J., dissenting).
460
Transcript of Oral Argument, Sandin v. Conner, supra note 459, at 33.
461
Sandin, 515 U.S. at 487.
462
Id. at 485–86 (internal quotation marks omitted).
463
Id. at 487.
464
Id. at 485.
465
Id. at 487.

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ordinary incidents of prison life.”466 This formulation has become the basis
for hundreds of decisions in the lower courts that, as we discuss below,
invoke the “ordinary” as if prison were a natural phenomenon rather than the
construction of law.
Again, the dissenters protested. Justice Ginsburg, joined by Justice
Stevens, reiterated what Justice Stevens said in Meachum—that liberty was
not a creature of state or federal law but was protected by the Constitution.467
Further, because the majority had provided no “examples” of its “key words”
of “atypical and significant hardship,” it left “consumers of the Court’s work
at sea.”468 Justice Breyer, joined by Justice David Souter, shared Justice
Ginsburg’s critiques and pointed to the radical differences between the
regime of disciplinary segregation and that of other prisoners in the same
prison. Regular prisoners were presumptively out of their cells “for eight
hours each day,” while people in solitary spent their “entire time alone . . .
[except for] 50 minutes . . . on average for brief exercise and shower[s],”
during which they were “constrained by leg irons and waist chains.”469 As
for the “difficult line-drawing” imposed by the majority’s analysis,470 Justice
Breyer insisted that lower courts could “separate the unimportant from the
potentially significant.”471
2. Baselines, Significance, and Typicality
Sandin v. Conner involved a person placed into isolation for thirty days.
A decade after that decision, the Court directly considered long-term solitary
confinement in Wilkinson v. Austin.472 As the unanimous decision written by
Justice Kennedy recounted, Ohio’s Supermax could hold more than 500
people indefinitely. By the time the case was before the Supreme Court, the
Ohio prisoners’ Eighth Amendment claims had been settled—the focus was
on the procedures for placing individuals in solitary rather than the
constitutionality of the practice itself.473
466

Id. at 484.
Id. at 489–90 (Ginsburg, J., dissenting).
468
Id. at 490 n.2.
469
Id. at 494 (Breyer, J., dissenting).
470
Id. at 497.
471
Id. at 500.
472
545 U.S. 209 (2005).
473
Id. at 213–14, 218. The Court stated that those claims were “settled in the District Court,”
although “[t]he extent to which the settlement resolved the practices that were the subject of the inmates’
Eighth Amendment claim [was] unclear.” Id. at 218. The Sixth Circuit reported that the settlement dealt
with “Eighth Amendment claims[] related primarily to medical care and the provision of outdoor
recreation.” Austin v. Wilkinson, 372 F.3d 346, 349 (6th Cir. 2004). The settlement required that Ohio
establish policies that barred placement of seriously mentally ill people at the State’s Supermax, improved
467

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When assessing whether any process was due, the Court’s opinion
detailed solitary’s horrors, even as it seemed to bolster its legitimacy through
discussion of the fearsomeness of incarcerated people and the fragility of
prison security. Conditions in Ohio’s Supermax were described as
more restrictive than any other form of incarceration in Ohio . . . . [A]lmost
every aspect of an inmate’s life is controlled and monitored. Inmates must
remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light
remains on . . . at all times, . . . and an inmate who attempts to shield the light
to sleep is subject to further discipline . . . . [The] cells have solid metal doors
with metal strips along their sides and bottoms which prevent conversation or
communication with other inmates. All meals are taken alone . . . . [I]nmates
are deprived of almost any environmental or sensory stimuli and of almost all
human contact . . . . for an indefinite period of time, limited only by an inmate’s
sentence.474

Nonetheless, according to the Court, “[p]rolonged confinement in
Supermax may be the State’s only option for the control of some inmates,”475
as it described Ohio’s prisons as “imperiled by the brutal reality of prison
gangs[;] . . . [c]landestine, organized, fueled by race-based hostility, and
committed to fear and violence.”476
Yet the Court also registered some qualms by holding that the
Fourteenth Amendment at times required prison officials to ensure the
fairness of their decision to put a person into this form of solitary
confinement. The Court’s gruesome details of Ohio Supermax’s
conditions—where “almost all human contact is prohibited”—coupled with
its potentially indefinite duration and negative impact on parole, served to
explain that people so confined had a “liberty interest” upon which
placement in Supermax infringed.477 The Court provided factors—
conditions, duration, and impact on sentence length—to consider in
determining if procedural protections were needed. But the decision did not
clarify whether all those elements had to be present, whether the list was
exclusive or could be augmented, how to weigh the factors, the sources of
information on which to draw, and what baselines to use for comparisons.
and monitored healthcare, and constructed an outdoor recreation space. Austin v. Wilkinson, No. 4:01CV-71, 2002 WL 32828650, at *1–2 (N.D. Ohio Apr. 5, 2002) (approving settlement agreement).
474
Wilkinson, 545 U.S. at 214–15.
475
Id. at 229.
476
Id. at 227. In contrast, none of the Justices in Wilkinson discussed the harms of long-term isolation
that health care professionals explained in their amici filing. See Brief of Professors & Practitioners of
Psychology & Psychiatry as Amicus Curiae in Support of Respondent at 4, Wilkinson v. Austin, 545 U.S.
209 (2005) (No. 04-495).
477
Wilkinson, 545 U.S. at 223–24.

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Indeed, noting “the difficulty of locating the appropriate baseline,” Justice
Kennedy concluded that the Court did not have to resolve the issue because
Ohio’s Supermax imposed “an atypical and significant hardship under any
plausible baseline.”478 Wilkinson thus appeared to recognize a federal liberty
interest (predating the Constitution or sourced in it) in being free from almost
total sensory deprivation for an indefinite period that could affect the timing
of a person’s release from prison.
To summarize more than fifty years of Supreme Court assessments of
prison conditions, the Court has classified a series of prison officials’
decisions that impose additional adversity on prisoners as part of
incarceration. The current parameters of what prison entails, according to the
Court, are first, that transfers are not “atypical and significant hardships,”
even though corrections regulations term them “adverse” or “significant,”
and lower courts had chronicled their harmful impacts. Second, thirty days
in isolation and exercise with irons and chains for a person with an
indeterminate sentence, in conditions like the Sandin court described for
prisoners in Halawa Correctional Facility, was not atypical. Third, per
Wilkinson, potentially indefinite confinement in Ohio’s Supermax version of
isolation, which both undermined opportunities for parole and entailed
profound sensory deprivation, was atypical.
Below, we document that, as Justice Ginsburg flagged in her Sandin
dissent, the Court’s case law left litigants and judges with few markers to
direct them when ascribing typicality to some practices and finding others
“atypical and significant hardship[s].” The questions are many, yet the
troubling result is, to return to Justice Ginsburg’s metaphor, a sea of lower
court decisions tolerating profound isolation.
3. Mining Hundreds of Solitary Confinement Rulings
To learn how judges have responded to the many questions left open by
Sandin and Wilkinson, we searched case law databases for opinions that
assessed claims of solitary confinement and used the phrase “atypical and
significant hardship.” An initial pull of cases in the lower federal courts from
1995 (when Sandin was decided) until the end of 2019 produced a total of
some 9,350 decisions in the Westlaw database.479 Caveats are immediately
in order, in that neither Westlaw nor Lexis put all district and circuit court
478

Id. at 223.
Using Westlaw, we entered the following search string: adv: (atypical! /s significant!) AND
(“solitary confinement” OR “segregated confinement” OR “adseg” OR “keeplock” OR “special housing
unit” OR “SHU” OR “restrictive housing” OR “administrative segregation” OR “protective”). We limited
the search to decisions from January 1, 1995 through September 1, 2019. Those terms generally refer to
leaving individuals in small cells for twenty-two or more hours a day.
479

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decisions online, nor were online posting practices uniform across the time
period.480 The differences in Figures 8a and 8b therefore do not necessarily
reflect that certain circuits decided more challenges to solitary confinement
than others; the decisions in the database may reflect that circuits have
different practices in terms of making cases available online. Thus, Figures
8a and 8b provide a window into this voluminous area of law rather than a
definitive account of all cases that were decided during this time period.
These numbers are one way to glimpse the hundreds of times that prisoners
tried to enlist federal judges to protect them from what they believed were
unfairly imposed in-prison punishments.
In Figures 8a and 8b below, we tally the decisions we found online by
circuits, the bulk of which were denominated “unreported” (8,157 at the
district court and 572 on appeal), as well as the reported cases (414 at the
district court and 207 on appeal). Among us, we read all the published
appellate court decisions across all circuits as well as a nonrandom sample
of unpublished appellate court rulings and a selection of recent lower court
decisions to confirm that we had found the relevant decisions in each circuit.

480
We contacted both Westlaw and LexisNexis to learn more about their processes for determining
which opinions are available in the database. Westlaw informed us that the process is “governed by
agreements that we have with the courts,” while Lexis identified user requests, internal organizational
guidelines, Shepard’s editors, and competitor benchmarking as the key drivers that shape its process.
Emails from Westlaw and LexisNexis to Michael VanderHeijden, Head of Reference & Lecturer in Legal
Research, Yale Law Sch. (Apr. 23, 2020) (on file with authors); see also David A. Hoffman, Alan J.
Izenman & Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 WASH. U. L. REV. 681,
710 & n.138 (2007).

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NORTHWESTERN UNIVERSITY LAW REVIEW
FIGURE 8A: VOLUME OF FEDERAL DISTRICT COURT DECISIONS ADDRESSING ATYPICAL AND
SIGNIFICANT HARDSHIPS AND SOLITARY CONFINEMENT BY CIRCUIT, 1995–2019
Circuit

Reported

Unreported

Total

1st

21

90

111

2d

174

1015

1189

3d

39

749

788

4th

21

830

851

5th

10

1171

1181

6th

20

703

723

7th

34

442

476

8th

12

539

551

9th

35

1824

1859

10th

25

369

394

11th

7

413

420

D.C.

16

12

28

All Districts

414

8157

8571

FIGURE 8B: VOLUME OF FEDERAL CIRCUIT COURT DECISIONS ADDRESSING ATYPICAL AND
SIGNIFICANT HARDSHIPS AND SOLITARY CONFINEMENT BY CIRCUIT, 1995–2019
Circuit

Reported

Unreported

Total

1st

6

4

10

2d

44

52

96

3d

15

76

91

4th

9

10

19

5th

14

61

75

6th

12

94

106

7th

24

33

57

8th

26

18

44

9th

26

100

126

10th

19

99

118

11th

5

18

23

D.C.

7

7

14

All Circuits

207

572

779

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In most of the decisions we read, correctional departments sought
dismissal or summary judgment, and many of the rulings were about whether
a case can proceed. When assessing the pleadings and limited records,
circuits varied considerably in their interpretation of what Sandin/Wilkinson
instructs them to do. Some opinions treated aspects of the inquiry as
questions of fact, while others considered the issues mixed fact and law, or
legal issues. Further, some courts either equated atypical with “extreme” or
“severe” conditions or imposed the additional requirement that prisoners
demonstrate their conditions were “extreme” or “severe.”481 Moreover, to
describe the “law” of a circuit requires another caveat because variation
exists over time and by panels.
Central to Wilkinson was the potentially indefinite confinement, as
distinguished from the presumptively fixed term of thirty days in Sandin, for
which no process was due. Hence, we tried to trace the duration of
confinement in the body of cases we identified. These opinions do not
reference empirical research about the impact of isolation on humans, nor do
they discuss the frequency and length of time people were placed in solitary
either around the country or in particular jurisdictions. These decisions also
do not address time frames for isolation set forth in state statutes and
regulations or in the standards of professional organizations such as the
American Correctional Association and in international provisions.
Such resources are now plentiful. For example, in 2015, after an essay
he wrote that described the experience of being held in isolation for about
twenty-four hours was published, the Director of the Department of
Corrections of Colorado imposed a cap that has since become a state
regulation, placing a fifteen-day limit on holding a person in a cell for
twenty-two hours or more per day.482 In 2018, Massachusetts required that
“prisoners held in restrictive housing for a period of more than 60 days” were
to be provided with “access to vocational, educational and rehabilitative
programs to the maximum extent possible.”483 A 2019 statute in New Jersey
prohibited “isolated confinement for more than 20 consecutive days, or for
more than 30 days during any 60-day period.”484
481
See, e.g., Incumaa v. Stirling, 791 F.3d 517, 531–32 (4th Cir. 2015); Joseph v. Curtin, 410 F.
App’x 865, 868 (6th Cir. 2010); Estate of DiMarco v. Wyo. Dep’t of Corr., Div. of Prisons, 473 F.3d
1334, 1342 (10th Cir. 2007).
482
See Colo. Dep’t of Corr., Reg. No. 650-03, at 2 (effective Mar. 15, 2020), available at
https://www.colorado.gov/pacific/cdoc/policies-1 [https://perma.cc/N4X3-78J2] (“Restrictive housing
may only be imposed as a condition of confinement for up to a maximum of 15 consecutive days.”).
483
MASS. GEN. LAWS ANN. ch. 127, § 39E (West 2018).
484
N.J. STAT. ANN. § 30:4-82.8(a)(9) (West 2020). For a compendium of proposed and enacted
statutes, see ARIANNA ZOGHI, ALEXANDRA HARRINGTON, JUDITH RESNIK & ANNA VANCLEAVE, THE

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National and transnational standards likewise have set benchmarks and,
in some instances, have called for the abolition of isolation beyond fifteen
days. In Canada, the Ontario Court of Appeal held in 2019 that long term
solitary confinement was unconstitutional and approved a fifteen-day cap on
placements in solitary.485 In 2016, the American Correctional Association
adopted new standards for accreditation that labeled confinement lasting
more than thirty days “extended restrictive housing,”486 and stated that
prisoners in extended restrictive housing should be given access to certain
services and programs.487 In 2015, the U.N. adopted the Nelson Mandela
Rules, which sought to prohibit what it termed to be “[p]rolonged solitary
confinement,”488 defined as lasting more than fifteen days.489 In addition, data
from the ASCA/Liman surveys identified that 80% of the people held, as of
the fall of 2017, spent a year or less in solitary confinement.490
Instead of routinely turning to these regulations or other sources, federal
courts recount the days, months, or years a person has been confined and
LIMAN CTR. AT YALE LAW SCH., REGULATING RESTRICTIVE HOUSING: STATE AND FEDERAL
LEGISLATION
ON
SOLITARY
CONFINEMENT
AS
OF
JULY
1,
2019
(2019),
https://law.yale.edu/sites/default/files/area/center/liman/document/restrictive_housing_legislation_resea
rch_brief.pdf [https://perma.cc/VPB3-JBDG].
485
The Canadian Press, Ontario Court of Appeal Rules More than 15 Days in Solitary ‘Cruel and
Unusual,’ CBC (Mar. 28, 2019, 7:05 PM), https://www.cbc.ca/news/canada/toronto/ontario-court-ofappeal-puts-limits-on-solitary-confinement-1.5076169 [https://perma.cc/LMD9-ZR4H]. In April 2020,
the press reported that the Canadian federal government decided not to pursue an appeal of this decision.
See Patrick White, Canada Abandons Solitary Confinement Appeal to Supreme Court, GLOBE & MAIL
(Apr.
21,
2020),
https://www.theglobeandmail.com/canada/article-canada-abandons-solitaryconfinement-appeal-to-supreme-court/ [https://perma.cc/4Q49-B7Y3].
486
AM. CORR. ASS’N, RESTRICTIVE HOUSING PERFORMANCE BASED STANDARDS 3 (2016),
http://www.aca.org/aca_prod_imis/docs/Standards%20And%20Accreditation/RHStandards2016.pdf
[https://perma.cc/EWQ3-SEQA] [hereinafter ACA STANDARDS].
487
See id. at 32 (ACA Standard 4-RH-0027 for prisons); id. at 62 (ACA Standard 4-ALDF-RH-021
for local detention facilities). The ACA 2016 standards also called for not using restrictive housing for
people under age eighteen, id. at 39 (ACA Standard 4-RH-0034 for prisons); id. at 66 (ACA Standard 4ALDF-RH-025 for local detention facilities); for pregnant women, id. at 38 (ACA Standard 4-RH-0033
for prisons); id. at 65 (ACA Standard 4-ALDF-RH-024 for local detention facilities); and for people with
“serious mental illness,” id. at 36 (ACA Standard 4-RH-0031 for prisons); id. at 69 (ACA Standard 4ALDF-RH-028 for local detention facilities). The standards also called on correctional facilities not to
place people in restrictive housing solely based on their gender identity. Id. at 40 (ACA Standard 4-RH0035 for prisons); id. at 68 (ACA Standard 4-ALDF-RH-027 for local detention facilities).
488
Nelson Mandela Rules, supra note 194, at 13. Rule 43 states that “[i]n no circumstances may
restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or
punishment,” and that both “indefinite” and “prolonged” solitary confinement are “prohibited,” as well
as placement in a constantly lit or dark cell, corporal punishment, food and drinking water reductions,
collective punishments, punitive chaining and shackling, and prohibiting contact with family as a
punishment. Id. at 13–14.
489
Id. at 14 (Rule 44).
490
See supra Figure 2.

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then use underspecified criteria to determine whether that length of time
contributes to, represents, or fails to constitute an “atypical and significant
hardship.” The opinions demonstrate that federal judges have a high
tolerance for permitting individuals to be isolated for years and decades, and
most circuits provide little explication of how long is too long.
The Second Circuit has established some time frames through a series
of rulings, creating benchmarks of 30, 101, and 305 days. In 1999, in Sealey
v. Giltner, that court held that placement for 101 days in the Special Housing
Unit (SHU) of New York’s Auburn Correctional Facility did not, in and of
itself, constitute an atypical and significant hardship requiring procedural
protection.491 Other Second Circuit opinions have since invoked this decision
for the standard that “restrictive confinements of less than 101 days do not
generally raise a liberty interest warranting due process protection, and thus
require proof of conditions more onerous than usual” to warrant procedural
protections.492
The Second Circuit has also concluded that an individual who spent 305
days or more in a special housing unit (SHU), under what the court termed
“normal SHU conditions,” had spent a period of time that was “a sufficient
departure from the ordinary incidents of prison life to require procedural due
process protections under Sandin.”493 Between 101 and 305 days, the Second

491

See 197 F.3d 578, 580, 589–90 (2d Cir. 1999).
Smith v. Arnone, 700 F. App’x 55, 56 (2d Cir. 2017) (summary order) (quoting Davis v. Barrett,
576 F.3d 129, 133 (2d Cir. 2009) (per curiam)). The Second Circuit has generally treated the question of
what conditions are more onerous than usual as a factual question for the district court to adjudicate based
on “a detailed record.” Palmer v. Richards, 364 F.3d 60, 64–65 (2d Cir. 2004) (quoting Colon v. Howard,
215 F.3d 227, 232 (2d Cir. 2000)); see also Davis, 576 F.3d at 135. The court may have considered the
conditions alleged by Samuel Ed Davis to be especially onerous. They included twenty-four-hour
confinement in a cell that flooded daily, a mattress containing “body waste,” and other prisoners throwing
feces and urine. Id. at 134. But the court in that case did not decide whether such conditions qualified as
“atypical and significant” because the district court had not developed a factual record detailed enough
to determine whether it differed from conditions in the general population or in administrative
segregation. Id. at 133, 135.
493
Colon, 215 F.3d at 231. Armando Colon had spent 305 consecutive days in disciplinary
confinement in two New York State prisons, Clinton Correctional Facility and Attica Correctional
Facility. Id. at 229. In a portion of his Colon panel opinion that did not garner a majority, Judge Jon
Newman proposed “establishing a bright-line rule that confinement in normal SHU conditions of more
than 180 days meets the Sandin standard.” Id. at 232. He argued that doing so would give guidance to
prison officials and limit the need for litigation. Id. at 233. Judge John Walker objected, writing that the
proposed cutoff was “not arrived at by adjudication but by legislative fiat.” Id. at 235 (Walker, J.,
concurring). Colon has since been invoked as setting 305 days as a marker triggering procedural
protections. See Reynoso v. Selsky, 292 F. App’x 120, 122–23 (2d Cir. 2008) (summary order) (citing
Colon, 215 F.3d at 231–32).
492

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Circuit has on occasion called for the “development of a detailed record”494
that could include “evidence of the psychological effects of prolonged
confinement in isolation and the precise frequency of SHU confinements of
varying durations.”495
The Second Circuit has also concluded that, in general, spending
between 30 and 101 days in solitary confinement is not in and of itself
“atypical and significant,” absent evidence that the conditions were worse
than what the court called “normal SHU conditions” or “that even relatively
brief confinements under normal SHU conditions were, in fact, atypical.”496
In such cases, the circuit has sometimes remanded for “a ‘detailed factual
record.’”497 If a person is confined for less than thirty days—a period the
Second Circuit has called “exceedingly short”498—then the court has
generally affirmed lower courts’ dismissals of due process claims without
requiring a “detailed factual record,”499 unless some information suggested
that a prisoner “endured unusual SHU conditions.”500
The inquiry into “unusual SHU conditions” entails some idea of
“normal” solitary confinement. In its 2000 decision in Colon, the Second
Circuit relied on New York State’s prison regulations to conclude that “the
normal conditions of SHU confinement in New York”501 included a person
being
placed in a solitary confinement cell, kept in his cell for 23 hours a day,
permitted to exercise in the prison yard for one hour a day, limited to two
showers a week, and denied various privileges available to general population
prisoners, such as the opportunity to work and obtain out-of-cell schooling.

494

Colon, 215 F.3d at 232; see, e.g., Welch v. Bartlett, 196 F.3d 389, 393–95 (2d Cir. 1999); Brooks
v. DiFasi, 112 F.3d 46, 48–49 (2d Cir. 1997); see also Reynoso, 292 F. App’x at 123; Sims v. Artuz,
230 F.3d 14, 23 (2d Cir. 2000) (“[W]e have characterized segregative sentences of 125 [to] 288 days as
‘relatively long,’ and thus necessitating ‘specific articulation of . . . factual findings’ before the district
court could properly term the confinement atypical or insignificant.” (citations omitted) (alterations
omitted)).
495
Colon, 215 F.3d at 232. When there is no dispute about the relevant facts, the court has remanded
to district courts to make “particularized findings.” Id.; see also Welch, 196 F.3d at 393–95.
496
Davis, 576 F.3d at 133 (quoting Palmer, 364 F.3d at 65). For confinements between 30 and 101
days, district courts must also “conduct a thorough comparison of the alleged conditions of . . .
confinement with those of the general population.” Id. at 135.
497
Id. (quoting Palmer, 364 F.3d at 65).
498
Palmer, 364 F.3d at 65–66.
499
Id. (citing Hynes v. Squillace, 143 F.3d 653, 658–59 (2d Cir. 1998) (per curiam), cert. denied,
525 U.S. 907 (1998) (twenty-one days)); see also Arce v. Walker, 139 F.3d 329, 335–36 (2d Cir. 1998)
(eighteen days); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam) (twelve days).
500
Palmer, 364 F.3d at 65–66.
501
Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000) (citation omitted).

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Visitors were permitted, but the frequency and duration was less than in general
population. The number of books allowed in the cell was also limited.502

Those confined for less than 101 days had to demonstrate conditions more
severe than the rules provided to establish an atypical and significant
hardship.
Some decisions of the Ninth Circuit have also focused on the length of
time in isolation. For example, a 2014 decision concluded that twenty-seven
months in isolation with “no meaningful review” constituted an atypical and
significant hardship.503 A 2020 decision, Mizzoni v. Nevada, followed and
relied on the duration of confinement—eighteen months—as the linchpin of
a liberty interest if, as alleged, that term was “functionally unreviewable.”504
Other appellate courts have tolerated periods of isolation calculated not
in days or months but in years. For example, the Tenth Circuit has addressed
thirteen,505 seventeen,506 and twenty years507 in solitary confinement and has
not required procedural protections. Moreover, an indefinite term in solitary,
if coupled with “periodic placement reviews,” did not require due process
protections.508
A parallel approach can be found in two decisions of the Seventh
Circuit, which held in 1997 and again in 2003 that “[t]he length of
disciplinary segregation does not implicate a federally protected liberty
interest even if the period extends for the entire term of incarceration.”509
Applying this rule, the court declined to find that liberty interests required
due process protections when a prisoner faced a nine-year term in solitary
confinement.510 After the 2005 Wilkinson decision, the circuit shifted
502

Id. (citation omitted).
Brown v. Or. Dep’t of Corr., 751 F.3d 983, 987–88 (9th Cir. 2014).
504
795 F. App’x 521, 521–22, (9th Cir. 2020).
505
Rezaq v. Nalley, 677 F.3d 1001, 1007, 1016 (10th Cir. 2012).
506
Grissom v. Werholtz, 524 F. App’x 467, 469, 474 (10th Cir. 2013).
507
Grissom v. Roberts, 902 F.3d 1162, 1166, 1170–72 (10th Cir. 2018).
508
Stallings v. Werholtz, 492 F. App’x 841, 845–46 (10th Cir. 2012) (“[I]t is not necessary for us to
closely review the process at this stage. The availability of periodic reviews merely suggests that the
confinement was not indefinite.” (quoting Rezaq, 677 F.3d at 1016)). Such placement reviews may take
place as infrequently as twice a year. See Rezaq, 677 F.3d at 1016.
509
Hernandez v. Hanks, 65 F. App’x 72, 74 (7th Cir. 2003) (citing Wagner v. Hanks, 128 F.3d 1173,
1176 (7th Cir. 1997)).
510
At the time of the Seventh Circuit’s decision, Rosalio Hernandez was facing a nine-year term in
solitary confinement. The court noted that Hernandez’s prison term was “projected to end in 2054.” See
id. at 73. Under the Wagner rule, Hernandez would therefore have no liberty interest even if he were held
in solitary confinement for fifty-six years; Hernandez had already been in solitary for five years when the
opinion was published. Thomas “Wagner[] was ordered to serve a year in disciplinary segregation in the
Wabash Valley Correctional Institution, in Indiana.” Wagner, 128 F.3d at 1174.
503

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somewhat.511 For example, writing that the “Supreme Court’s decisions are
helpful in setting out the durational parameters of a prison-segregation due
process analysis,” the Seventh Circuit held that 240 days in solitary
confinement could be “sufficiently long to implicate a cognizable liberty
interest if the conditions of confinement during that period were sufficiently
severe.”512
Aside from the Second and Ninth Circuits, most appellate cases have
not used the length of time alone to constitute an atypical and significant
hardship.513 For example, in a 1998 (pre-Wilkinson) ruling, the Sixth Circuit

511
See, e.g., Kervin v. Barnes, 787 F.3d 833 (7th Cir. 2015). In Kervin, the court stated that a duration
of confinement “considerably shorter” than six months “may, depending on the conditions of confinement
and on any additional punishments, establish a violation,” id. at 836, and that judges who believe terms
of less than six months can never trigger due process “may be unfamiliar with the nature of modern prison
segregation and the psychological damage that it can inflict,” id. at 837. Shane Kervin was incarcerated
at “an Indiana prison.” Id. at 834.
512
Marion v. Columbia Corr. Inst., 559 F.3d 693, 694, 697 (7th Cir. 2009).
513
Time is assessed in relationship to other factors. In the Eleventh Circuit, for example, a term of
less than a year in solitary confinement generally has not qualified unless the conditions of confinement
are substantially worse. See, e.g., Simpkins v. Gulf CI Warden, No. 16-17386-E, 2017 WL 6034508, at
*3 (11th Cir. Apr. 21, 2017); Mathews v. Moss, 506 F. App’x 981, 983 (11th Cir. 2013); Walker v.
Grable, 414 F. App’x 187, 188 (11th Cir. 2011); Young v. Rios, 390 F. App’x 982, 983–84 (11th Cir.
2010); Smith v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 13 (11th Cir. 2010); Shaarbay v. Palm
Beach Cty. Jail, 350 F. App’x 359, 361–62 (11th Cir. 2009); Thomas v. Warner, 237 F. App’x 435, 438
(11th Cir. 2007).
The court has held that over 100 days in solitary confinement with revoked visiting privileges,
curtailed television and library privileges, and a special management meal triggered due process. See
Spaulding v. Woodall, 551 F. App’x 984, 985–87 (11th Cir. 2014). The court has also found that two
years in administrative segregation with no hearings and severe hardships (vermin in the cell, little
recreation, and unhygienic shower conditions) may trigger due process. Quintanilla v. Bryson, 730 F.
App’x 738, 745, 747 (11th Cir. 2018). But the court in an earlier case held that while a “four-year
confinement in administrative segregation was lengthy, it did not tip the balance in favor of establishing
a liberty interest when weighed against other factors in his case—the conditions of his confinement were
generally equivalent to general prison population conditions.” Morefield v. Smith, 404 F. App’x 443, 446
(11th Cir. 2010).
Similarly, the Fourth Circuit looks at a combination of duration and specific conditions to determine
what constitutes an atypical and significant hardship. Though it has not established a temporal baseline,
its opinions have found in certain cases that around six months in administrative segregation does not
implicate a protected liberty interest. See Beverati v. Smith, 120 F.3d 500, 501–02 (4th Cir. 1997); see
also Martin v. Duffy, 858 F.3d 239, 253–54 (4th Cir. 2017) (finding that a 110-day stay in segregation
did not constitute atypical and significant hardship), cert. denied sub nom. Duffy v. Martin, 138 S. Ct.
738 (2018). Nor did a six-year stay in solitary on death row constitute atypical and significant hardship.
See Prieto v. Clarke, 780 F.3d 245, 247 (4th Cir. 2015). But a twenty-year stay in security detention,
combined with severe conditions, did constitute an atypical and significant hardship. See Incumaa v.
Stirling, 791 F.3d 517, 531 (4th Cir. 2015) (finding that a twenty-year confinement to security detention
was “extraordinary in its duration and indefiniteness”).
The District of Columbia Circuit similarly has not found terms of confinement (that were not
indefinite) to qualify unless accompanied by a deprivation that is sufficiently severe. See, e.g., Hatch v.

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held that it was “not ‘atypical’” for a prisoner to be in segregation for 2.5
years when being investigated as a participant in a riot in which a prison
guard died. The court concluded that, although that duration was unusually
long, the time in segregation did not give rise to a liberty interest because the
confinement was “not much different than that experienced by other inmates
in segregation.”514
On occasion, an extraordinary length of time has moved appellate
courts to vary from this approach. In 2014, in Wilkerson v. Goodwin, the
Fifth Circuit concluded that the thirty-nine years that Albert Woodfox spent
in solitary confinement at the Louisiana State Penitentiary constituted an
atypical and significant hardship.515 Whether compared “to other inmates in
the general population, other inmates in segregated confinement within the
Louisiana system as a whole, or other inmates serving life sentences,”
Woodfox’s confinement could not “be classified as ‘ordinary’ according to
any measure.”516 But within that circuit, lower courts have not relied on this
decision to classify shorter forms of “long-term segregation” as an atypical
and substantial hardship.517
In addition to inter-circuit variation, the case law of some circuits does
not permit generalizations. For example, in three unreported per curiam
decisions in the Eighth Circuit, the court held that spending four years,
twelve years, and thirteen years in segregated confinement qualified as
District of Columbia, 184 F.3d 846, 858 (D.C. Cir. 1999); Neal v. District of Columbia, 131 F.3d 172,
175 (D.C. Cir. 1997).
514
Jones v. Baker, 155 F.3d 810, 812–13 (6th Cir. 1998).
515
774 F.3d 845, 856 (5th Cir. 2014). Woodfox provides a vivid account of his experiences in his
book. See WOODFOX, supra note 14.
516
Wilkerson, 774 F.3d at 856 (citation omitted). The Fifth Circuit has rejected other challenges to
prolonged confinement. For example, the Fifth Circuit found that Marjan Rroku’s 513-day confinement
did not trigger due process concerns because he did not show that it was significantly different from the
general population. See Rroku v. Cole, 726 F. App’x 201, 202, 205 (5th Cir. 2018). He had alleged that
the confinement included “cold, noise, dirt, no showers, no recreation, no law library access, non-stop
light, a liquid diet, and improper medical care” that resulted in Rroku’s development of life-threatening
and irreversible medical conditions. See Rroku v. Cole, No. 1:15-cv-000294, 2016 WL 4821137, at *1
(W.D. La. Aug. 11, 2016).
517
See Gray v. King, No. 3:17-cv-385-CWR-LRA, 2019 WL 3756482, at *2 (S.D. Miss. May 17,
2019). Depriest Gray, held in Central Mississippi Correctional Institution, alleged that he was placed in
solitary confinement for a year, which, in addition to isolation, caused him to “los[e] several privileges,
including the right to use athletic and recreational facilities”; “to walk around the prison”; “to perform
general work detail”; “to access the library”; “have contact visitation”; or “attend worship services
allowed to the general population.” Id. at *1. Gray also alleged “that for the first two weeks in segregation,
he was provided no clothes.” Id. The magistrate judge recommended that his complaint, filed pro se, be
“dismissed as frivolous.” Id. at *2. No party filed objections and the district court adopted the
recommendation. See Gray v. King, No. 3:17-cv-385-CWR-LLRA, 2019 WL 3754918, at *1 (S.D. Miss.
Aug. 8, 2019).

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atypical and significant hardships.518 Yet reported decisions in the same
circuit offered the formulation that “administrative and disciplinary
segregation are not atypical and significant hardships under Sandin.”519
Indeed, in these decisions, the Eighth Circuit did not focus on the time spent
but called instead on a prisoner to identify “some specific difference between
his conditions in segregation and the conditions in the general population
which amounts to such a hardship.”520
To capture some of the variation, Figure 9 charts the range of time and
case law in different circuits. The bars on the left represent durations that
each court of appeals has deemed not to be in and of itself an atypical and
significant hardship. The bars on the right show the durations that the courts
have decided require due process protections. The middle portions denote
durations that circuits have not addressed or where the law is ambiguous.

518
See Chestang v. Varner Super Max, 496 F. App’x 684, 686 (8th Cir. 2013) (per curiam) (“almost
four years” in either administrative segregation or “the prison’s behavior modification program”);
Williams v. Norris, 277 F. App’x 647, 648–49 (8th Cir. 2008) (per curiam) (twelve years in administrative
segregation); Herron v. Schriro, 11 F. App’x 659, 661–62 (8th Cir. 2001) (per curiam) (affirming district
court finding, after trial, that more than thirteen years in administrative segregation was an atypical and
significant hardship under Sandin).
519
Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002).
520
Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006) (citing Phillips v. Norris, 320 F.3d 844,
847 (8th Cir. 2003)). For example, the court has found that twenty-six months in administrative
segregation does not qualify as atypical and significant. See Rahman X v. Morgan, 300 F.3d 970, 972
(8th Cir. 2002).

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FIGURE 9: VARYING EVALUATIONS OF THE IMPACT OF THE TIME SPENT WHEN CIRCUITS ASSESS
ATYPICAL AND SIGNIFICANT HARDSHIPS

1st
2d
3d
4th

Circuit

5th
6th
7th
8th
9th
10th
11th
D.C.
0

■ Not

5

10

Atypical & Significant

15
20
25
Years in Segregation
■

Not Decided/Ambiguous

30

■ Atypical

35

40

& Significant

Another potential marker under Sandin and Wilkinson is whether
placement in some form of disciplinary confinement has an impact on release
from prison by altering a prisoner’s parole eligibility, the ability to accrue
good-time credits, or otherwise. Not all circuits regularly focus on this issue;
directives to do so come from the Seventh, Ninth, and Tenth Circuits. For
example, a 1997 ruling by the Seventh Circuit concluded that a liberty
interest existed, and hence that procedural protections were required, if
prison discipline “takes the form of prolonging the prisoner’s
incarceration,”521 such as causing the loss of good-time credits.522
Similarly, the Ninth Circuit required analysis of “whether the state’s
action will invariably affect the duration of the prisoner’s sentence,”523 along
with consideration of the two other Sandin factors: “the duration of the
521
522
523

Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997).
See, e.g., Castro v. Hastings, 74 F. App’x 607, 610 (7th Cir. 2003).
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citations omitted).

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condition, and the degree of restraint imposed” along with “whether the
challenged condition ‘mirrored those conditions imposed upon inmates in
administrative segregation and protective custody.’”524 The Tenth Circuit
also called for inquiry into whether “the placement increases the duration of
confinement,” along with consideration of whether “the segregation relates
to and furthers a legitimate penological interest,” whether “the conditions of
placement are extreme,” and whether “the placement is indeterminate.”525 A
Third Circuit decision dealt with a case in which parole had been granted but
the person had not been released before being placed for thirty-five days in
disciplinary segregation; the court reasoned that parole authorities’
discretion meant that no liberty interest existed and that putting that prisoner
into solitary confinement did not impose an atypical and significant
hardship.526
Circuits differ on whether conditions alone can constitute an atypical
and substantial hardship, the impact of conditions in a multifactor test, and
what comparisons to make. What happens inside the cells and the contrast to
other forms of incarceration were also relevant in Wilkinson, which
discussed the profound sensory deprivations of Ohio’s Supermax where
lights were on 24/7. As we discussed, Sandin ignored the different limits on
movement and hygiene imposed on people in solitary as contrasted with
those in the general population.527 Wilkinson, acknowledging the lack of
clarity in the case law on baselines, declined to specify what to use.528
In making comparisons, lower courts sometimes looked at conditions
in the general population of the prison where the individual was incarcerated.
Other decisions relied on the confinement imposed in the most restrictive
confinement in the state. For example, in the 2017 Third Circuit decision of
Williams v. Secretary Pennsylvania Department of Corrections, the court
stated that “[t]he terms ‘ordinary’ and ‘routine’ direct us to use a general
metric (the general population).”529 The same year, the Fourth Circuit
524

Id. (quoting Sandin v. Conner, 515 U.S. 472, 486 (1995)).
Estate of DiMarco v. Wyo. Dep’t of Corr., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007).
526
Fantone v. Latini, 780 F.3d 184, 186–87 (3d Cir. 2015).
527
The Court noted in Sandin that “[b]ased on a comparison between inmates inside and outside
disciplinary segregation, the State’s actions in placing [the defendant] there for 30 days did not work a
major disruption in his environment” in holding that “Conner’s discipline in segregated confinement did
not present . . . [an] atypical, significant deprivation.” 515 U.S. at 486.
528
In Wilkinson, the Court acknowledged inconsistency among the circuits as to “the baseline from
which to measure what is atypical and significant” and concluded that it “need not resolve the issue here.”
Wilkinson v. Austin, 545 U.S. 209, 223 (2005).
529
848 F.3d 549, 564 (3d Cir. 2017). An earlier Third Circuit opinion explained that although it had
“not conclusively determined the baseline from which to measure what is ‘atypical and significant’ in any
particular prison system, and we do not do so here, we are satisfied that [the prisoner] has not
525

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compared conditions of solitary to those of “the general population.”530 Two
years earlier, the Fourth Circuit had, in Incumaa v. Stirling, used that
reference to conclude that Lumumba Incumaa had demonstrated not only
that his confinement to a Special Management Unit (SMU) was
“extraordinary in its duration and indefiniteness,” but also that the conditions
of his confinement in SMU were “severely restrictive and socially
isolating.”531 In contrast to individuals in general population, Incumaa was
held in a small cell for all but approximately ten hours each month; had been
subjected to “near-daily cavity and strip searches”; had no opportunity to
socialize with other prisoners; and had no access to “educational, vocational,
and therapy programs.”532
Within circuits, comparisons about conditions can also vary. In the
Second Circuit, some opinions have required a comparison between a
challenged confinement and conditions within the general population, while
others compare conditions to those of individuals in administrative and
protective segregation, or to people either within the same facility533 or

demonstrated that he had a liberty interest that defendants could have infringed.” Fantone, 780 F.3d at
189.
The Williams case sought damages; Craig Williams, a death row prisoner at SCI-Greene, and Shawn
T. Walker, a death row prisoner at SCI Graterford, who both had their death row convictions vacated,
argued that officials had “violated their Fourteenth Amendment rights to due process by” subjecting them
to solitary confinement “without meaningful review of their placements after their death sentences had
been vacated.” The Third Circuit affirmed summary judgment for the defendants on the grounds that
prison officials were entitled to qualified immunity. Further, the court noted that the circuit had not fixed
on a specific baseline. Williams, 848 F.3d at 553, 554, 555, 560. As previously noted, the State agreed to
reduce the isolation of individuals with capital sentences in the 2020 approval of the class action
settlement in Reid v. Wetzel. See Settlement Agreement, Reid v. Wetzel, supra note 264, at 3.
530
Martin v. Duffy, 858 F.3d 239, 253 (4th Cir. 2017) (quoting Incumaa v. Stirling, 791 F.3d 517,
528–29 (4th Cir. 2015)). Anthony F. Martin, a prisoner of South Carolina’s Perry Correctional Institution,
challenged his placement in solitary confinement on the grounds that it had been in retaliation for filing
a grievance. Id. at 243. The Fourth Circuit concluded that while Martin had “failed to state claims under
the Equal Protection and Due Process Clauses,” he had pleaded sufficient facts alleging a First
Amendment violation, and that the defendant prison captain was not entitled to qualified immunity. Id.
531
791 F.3d at 521, 528, 531–32. Lumumba Kenyatta Incumaa challenged his placement in solitary
confinement for over twenty years, first in the Maximum-Security Unit and then, starting in 2005, the
Special Management Unit of the South Carolina Department of Corrections. Id. at 519, 521.
532
Id. at 531. In 2019, a lower court in the Fourth Circuit denied the defendants’ motion to dismiss
the plaintiff’s complaint that solitary confinement at Virginia’s Red Onion State Prison both violated the
Eighth Amendment, and gave rise to Fourteenth Amendment due process protections. See supra notes
282–283 and accompanying text. The “atypical and significant hardship” imposed included a lack of
human contact, the use of shackles and restraints, frequent cavity searches, and restrictions on commissary
purchases of food, as compared to conditions of prisoners in general population. Reyes v. Clarke, No.
3:18-cv-611, 2019 WL 4044316, at *2, *14–23 (E.D. Va. Aug. 27, 2019).
533
Davis v. Barrett, 576 F.3d 129, 133–34 (2d Cir. 2009); see also Welch v. Bartlett, 196 F.3d 389,
392–94 (2d Cir. 1999).

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statewide.534 Other circuits have used as comparisons the conditions
experienced by prisoners held in administrative segregation either where the
prisoner was held or where the state could transfer the prisoner. For example,
in a 2016 decision, Aref v. Lynch, the D.C. Circuit concluded that, in most
cases, judges had to assess conditions imposed on similarly situated
prisoners placed in that facility in “administrative segregation.”535 Yet,
because it was normally expected for prisoners to be transferred to another
prison with more restrictive conditions, the conditions at that more restrictive
facility could also be used to provide the relevant comparison to the
challenged confinement.536
In Wagner v. Hanks, a 1997 decision authored by Judge Posner, the
Seventh Circuit adopted a baseline of the conditions experienced by
prisoners in the “most restrictive” confinement in the state.537 In contrast, in
a 2017 case, Judge Posner commented that it could be atypical and
significant for “an elderly prisoner convicted of a nonviolent crime such as
bank fraud and serving his prison term in a minimum-security prison[] . . .
to be sent to a high-security prison for a trivial disciplinary infraction.”538
Further, Judge Posner clarified that less than six months in solitary
confinement should not always be considered an insufficient duration for a
claim to be stated (“[a] considerably shorter period of segregation may,
depending on the conditions of confinement and on any additional
punishments, establish a violation”), and suggested that “[j]udges who lean
toward such presumption may be unfamiliar with the nature of modern
prison segregation and the psychological damage that it can inflict.”539
In addition to duration, conditions, and impact on release, which were
the focus of Wilkinson, some circuits impose other requirements. The Tenth
Circuit has a four-factor test, focused first on whether “the segregation
534

See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
833 F.3d 242, 255 (D.C. Cir. 2016).
536
See Hatch v. District of Columbia, 184 F.3d 846, 857–58 (D.C. Cir. 1999). Donald Hatch, a
prisoner at the Lorton Correctional Complex, “filed suit against the District of Columbia in the United
States District Court” on the grounds that his solitary confinement “violated the Due Process Clause of
the U.S. Constitution as well as D.C. regulations governing Lorton.” Id. at 848–49.
537
128 F.3d 1173, 1176–77 (7th Cir. 1997). The Seventh Circuit noted that “[e]very state must have
somewhere in its prison system single-person cells in which prisoners are sometimes confined not because
they have misbehaved but simply because the prison has no other space, wishes to protect some prisoners
from others, wishes to keep prisoners isolated from one another in order to minimize the risk of riots or
other disturbances, wishes to prevent the spread of disease, and so forth[,]” and thus these conditions
could not be atypical. See id. at 1176.
538
Kervin v. Barnes, 787 F.3d 833, 836 (7th Cir. 2015).
539
Id. at 836–37. Shane Kervin, the plaintiff in the case, received no release, as the Seventh Circuit
affirmed the lower court’s dismissal of his suit. Id. at 837.
535

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furthers a legitimate penological interest, such as safety or rehabilitation,”
second on whether conditions in confinement are “extreme,” third on the
impact of confinement on duration, and fourth on whether placement is
“indeterminate.”540 In Rezaq v. Nalley, for example, Omar Rezaq,
Mohammed Saleh, Ibrahim Elgabrowny, and El-Sayyid Nosair had all been
convicted of “terrorism-related offenses” and transferred from general
population penitentiaries to ADX Florence, the federal system’s highly
restrictive prison. The court concluded that the Bureau of Prisons had not
violated the prisoners’ due process rights because the transfer did not
implicate a liberty interest, even though
[p]risoners housed in the general population unit at ADX spend twenty-three
hours a day confined to their cells. The typical cell at ADX measures eightyseven square feet and contains a bed, desk, sink, toilet, and shower. Inmates
take their meals alone in their cells. Although BOP policy provides for ten hours
of recreation per week, recreation is frequently cancelled due to staff shortages,
mass shakedowns, or adverse weather.541

Since deciding Rezaq, the court has also not found conditions to be
“extreme” when prisoners were placed under the more restrictive Special
Administrative Measures (SAM) at ADX Florence. Atop the rules detailed
above, those prisoners were only to communicate with immediate family
members, either by monitored phone calls or noncontact visits, and their
legal representatives.542
The Tenth Circuit has applied its extremity test to prisoners held in state
as well as federal facilities. Illustrative are decisions related to the
confinement of Richard Grissom, incarcerated in Kansas. In 2007, Grissom
challenged his decade in an “eight-by-fourteen f[oo]t” cell in which, he
alleged, he was kept twenty-three to twenty-four hours a day. 543 He reported
that the cell was furnished with “a solid concrete bed with a two-inch

540

Estate of DiMarco v. Wyo. Dep’t of Corr., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007).
Rezaq v. Nalley, 677 F.3d 1001, 1004–05 (10th Cir. 2012) (citations omitted). During the course
of the litigation, and not as the result of any order from the courts, each of the prisoners was transferred
out of ADX Florence, and into the BOP’s “Communication Management Units” at other facilities—
“more restrictive than the general population units” within typical federal prisons, but less restrictive than
general population at ADX Florence. Id. at 1005.
542
Gowadia v. Stearns, 596 F. App’x 667, 668, 673 (10th Cir. 2014) (internal quotation marks
omitted) (noting that while Rezaq “dealt with general population prisoners and Gowadia is incarcerated
in a specialty unit, he fails to assert that his confinement differs from that of the plaintiffs in Rezaq”).
543
Grissom v. Roberts (Grissom IV), 902 F.3d 1162, 1169 (10th Cir. 2018); Grissom v. Werholtz
(Grissom II), 524 F. App’x 467, 469–70 (10th Cir. 2013). Our description of Grissom’s conditions comes
from the 2018 decision because the Tenth Circuit ruled that his conditions at that time had not become
“more severe” since the 2013 decision. See Grissom IV, 902 F.3d at 1172.
541

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mattress,”544 that lights were “more or less” on all day and all night,545 and
that the enclosure was “designed to maximize sensory deprivation,” due to
its “solid metal doors trimmed with rubber seals” that blocked all sound
entering or exiting the cell.546 In an unpublished 2013 decision, the Tenth
Circuit found that Grissom had not shown he had a protected liberty interest
because none of the four factors of its test had been met.547 Five years later,
and despite an impassioned concurrence that laid out the studies of how
injurious profound isolation was and called for the Tenth Circuit to revisit its
law,548 the majority in 2018 upheld the grant of summary judgment for the
correctional staff on the grounds that Grissom could not overcome their
qualified immunity; the Tenth Circuit’s earlier decisions did not make such
treatment clearly violative of established rights.549
Other circuits’ decisions likewise tolerate radically impoverished
confinement. In 1997, for example, Brian Beverati and Emil Van Aelst
averred that their administrative segregation cells in the Maryland
Penitentiary “were infested with vermin; were smeared with human feces
and urine; and were flooded with water from a leak in the toilet on the floor
above.”550 They alleged “they were forced to use their clothing and shampoo
to clean the cells”;551 that the cells were at times “unbearably hot”; that they
were released from their cells only “three to four times per week, rather than
seven”; and that they received considerably less food than prisoners in
general population.552 Accepting these allegations as true for purposes of
reviewing the district court’s grant of summary judgment for the State, the
Fourth Circuit concluded that the conditions “were not so atypical that
exposure to them for six months imposed a significant hardship in relation
to the ordinary incidents of prison life.”553

544

Id. at 1169.
Id.
546
Id.
547
See Grissom II, 524 F. App’x at 474–75.
548
Grissom IV, 902 F.3d at 1175, 1176–77 (Lucero, J., concurring in the judgment). He concluded
that it was “important to establish that the prolonged term of solitary confinement before us—twenty
consecutive years—based on what appears to be marginal justification, violates the Due Process Clause.”
Id. at 1175.
549
Id. at 1172–73, 1175 (majority opinion). The court also rejected Grissom’s claim, in part for
briefing failures, that he had been discriminated against as an African American. Id. at 1173.
550
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997).
551
Id.
552
Id.
553
Id.
545

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The Court of Appeals in the Sixth Circuit was similarly unpersuaded
that Michael Powell had been subjected to atypical and substantial hardships
in Michigan’s Chippewa Correctional Facility. After the prison found him
guilty of possessing a weapon and fighting with another prisoner, it placed
Powell in solitary confinement for what became six months.554 Powell filed
a Section 1983 civil rights claim, seeking compensatory and punitive
damages as well as injunctive relief. He alleged that, while in solitary, “he
was having suicidal thoughts and trouble sleeping and was losing weight”;
that the water in the cell was shut off from “12:00 a.m. [to] 6:30 a.m.” and
therefore he could neither “drink water [n]or flush the toilet during this
time”; and that, for over a month of his confinement, he “had no working
light in his cell.”555 The district court granted summary judgment for the
State, and the Circuit commented “that most of the deprivations he
experienced were not extreme and were no more than temporary
inconveniences.”556
Yet, in some cases, descriptions of disabling conditions have prompted
courts to entertain claims for relief. Exemplary is a decision by the Seventh
Circuit, which reversed a grant of summary judgment for the State and held
that the district court had wrongly concluded that the prisoner, Nathan Gillis,
had no liberty interest in avoiding confinement to his state’s “Behavioral
Modification Program.”557 That decision began:
Stripped naked in a small prison cell with nothing except a toilet; forced to sleep
on a concrete floor or slab; denied any human contact; fed nothing but “nutriloaf”; and given just a modicum of toilet paper—four squares—only a few
times. Although this might sound like a stay at a Soviet gulag in the 1930s, it
is, according to the claims in this case, Wisconsin in 2002.558

Likewise, in Serrano v. Francis, the Ninth Circuit held in 2003 that a
placement for almost two months in the SHU gave rise to a liberty interest
because
Serrano was denied use of his wheelchair, which he was permitted to use in the
general population. Serrano has alleged that he could not take a proper shower;
that he could not use the toilet without hoisting himself up by the seat; that he
had to crawl into bed by his arms; that he could not partake in outdoor exercise
554

Powell v. Washington, 720 F. App’x 222, 226 (6th Cir. 2017).
Id. at 224–25.
556
Id. at 225, 228. The court affirmed the grant except on the Eighth Amendment claim for
inadequate cell lighting because it found the “alleged deprivation of adequate lighting . . . for thirty-five
days . . . sufficiently extreme to state an Eighth Amendment claim.” Id. at 228–29.
557
Gillis v. Litscher, 468 F.3d 488, 489, 495 (7th Cir. 2006).
558
Id. at 489.
555

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NORTHWESTERN UNIVERSITY LAW REVIEW
in the yard; and that he was forced to drag himself around a vermin and
cockroach-infested floor.559

The court stressed that it was “Serrano’s disability” and his placement
“in a[] SHU that was not designed for disabled persons” that were key
factors.560 But because the Ninth Circuit had not decided when a physical
disability could generate a liberty interest in avoiding solitary confinement,
it affirmed the lower court’s grant of qualified immunity, even though it
found “deplorable the conditions under which Serrano was kept.”561
Through this overview of lower court decisions, we have aimed to
provide a sense of what federal judges have considered and sometimes found
of concern, but more often condoned, about life in prison in the last two
decades.562 The descriptions in these cases have parallels to the disturbing
degradations of the 1960s. Although people are no longer regularly stripped
and the cells are no longer dark, many cells are always lit, and in some of
this century’s cases, the dirt and lack of sanitation echoes what California,
New York, and D.C. did in the 1960s. Even when cells are clean, people
have spent years alone. Mostly, prisoners lose on the “atypical and
significant hardship” test. Their wins generally entail reversals of dismissals
or of grants of summary judgment and remands for further proceedings to
determine if some process is due.563 And, as we said at the outset, the
variation among courts on what constitutes an “atypical and significant
hardship” is substantial, but the toleration of profound constraints on human
movement spans the country.
IV. CONSTRUCTING THE “NORMAL” OF PRISONS
Courts have always been part of the fabric of prisons—from the
sentences they issue that send individuals to incarceration, to doctrines that
did not recognize prisoners’ status as individuals protected by law, to the
more recent constitutional interpretations. In the era of “hands off
deference,” the federal courts were present in prisons through their absence,
which gave state officials unbounded authority over individuals in their
custody. Since the 1960s, when courts acknowledged that the Constitution
did not stop at the prison gates, judges have aimed to delineate the boundaries
of their work and to leave most decision-making to administrative officials.
559
345 F.3d 1071, 1078 (9th Cir. 2003). Onofre T. Serrano received no remedy, as the court
dismissed the due process claim against the State on the grounds of qualified immunity. Id. at 1081.
560
Id. at 1079.
561
Id. at 1081.
562
These cases typically include both Eighth and Fourteenth Amendment claims. See, e.g., Grissom
v. Roberts, 902 F.3d 1162, 1166–67 (10th Cir. 2018); Gillis, 468 F.3d at 489.
563
See, e.g., Gillis, 468 F.3d at 495.

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Whether focused on “decency,” “liberty,” “dignity,” arbitrariness,
“minimal necessities,” “deliberate indifference” to known serious medical
needs, or “atypical and significant hardships,” judges affect the lives of
prisoners and alter the experiences and practices of correctional officials. In
the 1960s and 1970s, judges rejected confinement that ensconced filth and
violence. Courts read the Constitution to require sanitation, protection of
safety, health care, clothing, bedding, food, and heat for people in and out of
solitary confinement. Further, courts banned segregation by race and called
for opportunities for religious practices.
Those legal proclamations are far from implemented. Yet, when failures
now become vivid, prison officials do not counter—as they once did—that
whatever the conditions, their discretion is lawfully paramount. 564 The
decades of case law is part of why prisons became a mandated housing, food,
and health care service for more than a million and a half people, even when
many prisons are regularly abysmal.565 Likewise, a mix of legal mandates
and administrative needs have prompted prisons to host thousands of “due
process hearings,” and some systems document that, on occasion, prisoners
successfully rebut charges of misbehavior.
Atop the detailed accounts of prison squalor in the 1960s and 1970s, we
provided comparably dense descriptions of confinement in solitary cells
during the last two decades, as courts debated whether such isolation
breached either punishment or procedural norms under the Eighth and
Fourteenth Amendments. Instead of focusing on when prisons added to
punishments through imposing “adverse” conditions or transfers, judges
licensed officials to alter in profound ways the quantum of punishment
imposed. And, to date, judges and Justices have not united around the
proposition that “life’s necessities” include space beyond a tiny cell, social
interaction, environmental stimuli, a range of activities, and regular access
to natural light. Rather, hundreds of decisions have concluded that months
and years in isolation are not “atypical,” and through such pronouncements,
judges have helped to make such evisceration of human contact “normal.”
564

See, e.g., Jolie McCullough, “The Stakes Could Not Be Higher”: Judge Threatens to Lock Up
Texas Prison Officials over Air Conditioning Violation, TEX. TRIB. (Sept. 6, 2019)
https://www.texastribune.org/2019/09/06/texas-prison-officials-threatened-prison-air-conditioning/
[https://perma.cc/89FZ-SCLM] (quoting Judge Ellison of the Southern District of Texas, responding to
the Texas prison system’s violation of a court order to place some incarcerated persons in air conditioning
by saying, “We ought to have prison officials in prison at the same temperature,” to which the correctional
department’s attorney replied, “We hear your message . . . .” ); Westefer v. Snyder, No. 00-162-GPM,
2013 WL 1286971, at *1 (S.D. Ill. Mar. 27, 2013).
565
See generally HOMER VENTERS, LIFE AND DEATH IN RIKERS ISLAND (2019) (chronicling the
failures of health care delivery); see also Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole
Pie 2020, PRISON POL’Y INITIATIVE (Mar. 24, 2020), http://prisonpolicy.org/reports/pie2020.html
[https://perma.cc/38LR-BNTL].

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Yet, in the lower courts, a few decisions recognize that—whether clean
or dirty, dark or light—profound isolation is “deliberate indifference” to the
human need to interact; that deprivation of these human needs does violate
the Constitution; and that putting people into isolation for extended periods
of time is both atypical and a significant hardship.
Thus, just as the law shifted in the 1960s and 1970s to de-normalize the
violence and filth that was prison, law may again be finding intolerable
aspects of in-prison treatment. The baseline that courts had selected—that of
an incarcerated person—gave rise to inquiries into what was “normally
incident” in prisons. Contemporary challenges to solitary confinement aim
to replace this metric with a baseline of how people outside of prisons
“normally” behave.
And, once again, changes are propelled by the work of prisoners, who
interact with social movements, political action, legislation, and litigation
contesting claims about what is “normal” for prisons. In January of 2020, for
example, advocates proposed a statute in Connecticut, entitled PROTECT—
“An Act Promoting Responsible Oversight and Treatment, and Ensuring
Correctional Transparency”—that called for eight hours of time out of cells;
limiting physical restraints (e.g., chains) to no more than four hours;
protecting social relationships; promoting correctional officials’ mental
health; creating oversight through an ombudsperson; and shutting down that
state’s Supermax.566 More than two dozen states have considered various
kinds of legislation to regulate solitary confinement and, as of the spring of
2019,567 eight have been enacted, including the Massachusetts and New
Jersey laws referenced above, as well as legislation pending in California
and Tennessee.568
Those initiatives are built on concerns from across the political
spectrum. Organizations sometimes calling themselves “right on crime” and
“smart on crime” mix both moral and fiscal reform agendas often associated
with conservative politics.569 During the last decades, the American Friends
Service Committee aimed to stop Supermax and launched grassroots projects
that have, since 2010, continued under the umbrella of a “Stop Solitary”

566

PROTECT ACT, STOP SOLITARY: CONN. (2020), https://www.stopsolitaryct.org/s/PROTECTAct.pdf [https://perma.cc/HK7M-H9T8]; see also Kelan Lyons, Advocates Push to Curtail Solitary
Confinement in CT Prisons, CONN. MIRROR (Jan. 23, 2020), https://ctmirror.org/2020/01/23/advocatespush-to-curtail-solitary-confinement-in-ct-prisons/ [https://perma.cc/9C8E-67HD].
567
ZOGHI ET AL., supra note 484, at 5–27.
568
Id. at 2, 14, 24.
569
See generally DAVID DAGAN & STEVEN M. TELES, PRISON BREAK: WHY CONSERVATIVES
TURNED AGAINST MASS INCARCERATION (2016).

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campaign in a coalition including the ACLU and religious groups against
torture.570
As described, significant calls for reform have come from prison
administrators, who are joining academics in documenting the use of
isolation and in condemning its excesses. The Vera Institute and the Urban
Institute have offered consultation services to support systems that seek to
reduce reliance on solitary confinement.571 In 2016, the American
Correctional Association revised its prison accreditation rules to
circumscribe restrictive housing for subpopulations that include people
under eighteen, those seeking safety given their sex or gender identity, or
people with serious mental illness.572 Moreover, the movement to undermine
solitary confinement has always been transnational, as reflected in the United
Nations Special Rapporteur on Torture’s opposition to the practice.573
In sum, this sixty-year span demonstrates that nothing is “normally
incident” to life in prison except what human beings impose and the law
condones. What has changed both the practices and the law are insights from
incarcerated people, sometimes held in “gulag”-like conditions,574 and who
have long understood that the U.S. Constitution guaranteed them recognition
as holders of the same liberty as all other persons.

570
See, e.g., Andalusia Knoll, The National StopMax Campaign Conference, LEFT TURN,
http://www.leftturn.org/national-stopmax-campaign-conference [https://perma.cc/ST76-P8LV]; We Can
Stop Solitary, ACLU, https://www.aclu.org/issues/prisoners-rights/solitary-confinement/we-can-stopsolitary [https://perma.cc/GZ3M-T8VJ].
571
See LÉON DIGARD, SARA SULLIVAN & ELENA VANKO, VERA INST. OF JUSTICE, RETHINKING
RESTRICTIVE HOUSING: LESSONS FROM FIVE U.S. JAIL AND PRISON SYSTEMS (2018),
https://www.vera.org/rethinking-restrictive-housing [https://perma.cc/4TAF-JHRC]; see also URBAN
INST., REQUEST FOR PROPOSALS FOR THE PRISON RESEARCH AND INNOVATION NETWORK 2 (2019),
https://www.urban.org/sites/default/files/request_for_proposals_urban_institute_and_arnold_ventures_0
.pdf [https://perma.cc/3BGA-LNBF]; Sara Sullivan, Reducing Segregation, VERA INST. JUST.,
https://www.vera.org/projects/reducing-segregation [https://perma.cc/QFY5-KQYX].
572
See ACA STANDARDS, supra note 486, at 36, 39, 40. The American Correctional Association
recommends that prisoners younger than eighteen not be placed in restrictive housing and encourages
periodic mental health screenings during periods of extended restrictive confinement. AM. CORR. ASS’N,
RESTRICTIVE
HOUSING
EXPECTED
PRACTICES
34–35,
40
(2018),
http://www.aca.org/ACA_Prod_IMIS/ACA_Member/StandardsAccreditation/Standards/Restrictive_Ho
using_Committee/ACA_Member/Standards_and_Accreditation/Restrictive_Housing_Committee/Restri
ctive_Housing_Committee.aspx?hkey=458418a3-8c6c-48bb-93e2-b1fcbca482a2
[https://perma.cc/WH4R-5QTH].
573
Solitary Confinement Should Be Banned in Most Cases, UN Expert Says, UNITED NATIONS (Oct.
18, 2011), https://news.un.org/en/story/2011/10/392012-solitary-confinement-should-be-banned-mostcases-un-expert-says [https://perma.cc/5LNK-DFVC]. See generally Sharon Shalev, Solitary
Confinement Across Borders, in SOLITARY CONFINEMENT, supra note 143, at 59–76.
574
See Gillis v. Litscher, 468 F.3d 488, 489 (7th Cir. 2006).

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