Benjamin N. Cardozo School of Law · Yeshiva University
Jacob Burns Institute for Advanced Legal Studies
February 20, 2018
Faculty Research Paper No. 536

Solitary Troubles
Forthcoming
93 NOTRE DAME L. REV. 927

Alexander A. Reinert
Professor of Law
Cardozo Law School
55 Fifth Avenue
New York, NY 10003
212-790-0403
areinert@yu.edu

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ARTICLES
SOLITARY TROUBLES
Alexander A. Reinert*
Solitary confinement is one of the most severe forms of punishment that can be inflicted on
human beings. In recent years, the use of extreme isolation in our prisons and jails has been
questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly
the entirety of American history, judicial regulation of the practice has been extremely limited.
This Article explains why judges hesitate to question the use of solitary confinement, while also
providing a path forward for greater scrutiny of the practice.
© 2018 Alexander A. Reinert. Individuals and nonprofit institutions may reproduce
and distribute copies of this Article in any format at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the Notre Dame
Law Review, and includes this provision in the copyright notice.
* Professor of Law, Benjamin N. Cardozo School of Law. I am grateful to Rick
Bierschbach, Maggie Lemos, Jules Lobel, Max Minzner, Kevin Stack, and the participants
in the Drexel University Thomas R. Kline School of Law and St. John’s University School of
Law faculty workshops for helpful comments on earlier drafts of this Article. I also wish to
acknowledge Alison Gross for her excellent research in support of this Article.
For the purposes of this Article, I will use the generally accepted definition of “solitary
confinement”—segregation in any cell, alone or with other people, for periods of twentytwo or more hours per day. See Wilkinson v. Austin, 545 U.S. 209, 214 (2005) (defining
solitary confinement as limiting human contact for twenty-three hours per day); Letter
from Thomas E. Perez, Assistant Attorney General, and David J. Hickton, United States
Attorney, Western District of Pennsylvania, to Tom Corbett, Governor of Pennsylvania 5
(May 31, 2013) (defining solitary confinement as “confine[ment] to one’s cell for approximately 22 hours per day or more”). In many systems, prisoners are essentially confined to
a cell for all twenty-four hours in a day, because access to “recreation” is obtained by walking from one’s cell to an adjoining cell for a period of one or two hours per day. Wilkinson,
545 U.S. at 214. In addition, the term “solitary confinement” refers to cells that hold one
or two people. Indeed, being housed in a cell for twenty-two out of twenty-four hours per
day can be even more debilitating when such a small living space is shared with one other
person. See Christie Thompson & Joe Shapiro, The Deadly Consequences of Solitary with a
Cellmate, MARSHALL PROJECT (Mar. 24, 2016), https://www.themarshallproject.org/2016/
03/24/the-deadly-consequences-of-solitary-with-a-cellmate#.1mCzv3WTc. As one of the
leading experts on the harms of solitary confinement has testified:
[I]n some ways, prisoners who are double-celled in an isolation unit have the
worst of both worlds: they are “crowded” in and confined with another person
inside a small cell but—and this is the crux of their “isolation”—simultaneously
isolated from the rest of the mainstream prisoner population, deprived of even
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. A BRIEF HISTORY OF THE PRACTICE OF SOLITARY
CONFINEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. LEGAL CONSTRAINTS ON THE USE OF SOLITARY CONFINEMENT
A. Solitary Confinement and Procedural Due Process . . . . . . . . . .
B. Solitary Confinement and the Eighth Amendment . . . . . . . . . .
1. Eighth Amendment Fundamentals . . . . . . . . . . . . . . .
2. Judicial Deference Across Eighth Amendment
Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Deference in Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Failure to Regulate Solitary Confinement
Through the Eighth Amendment . . . . . . . . . . . . . . . . .
III. A WAY FORWARD FOR JUDICIAL REGULATION OF SOLITARY
CONFINEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Relevance of Sentencing Jurisprudence to Solitary
Confinement Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Role of International Law in Eighth Amendment
Regulation of Solitary Confinement . . . . . . . . . . . . . . . . . . . . . .
1. Review of Solitary Confinement in the United
Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Solitary Confinement in the European Court of
Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Solitary Confinement as Adjudicated by Other
Regional Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Solitary Confinement as a Dignitary Assault . . . . . . . . . . . . . .
IV. OVERCOMING JUDICIAL RELUCTANCE TO REGULATE EXTREME
ISOLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION
The use of solitary confinement, or extreme isolation,1 is routine in the
United States. Although precise figures are unavailable, best estimates suggest that about twenty percent of people in federal and state prisons and jails
will experience some form of extreme isolation at some point during their
confinement, with many of them held for more than thirty days.2 On an
minimal freedom of movement, prohibited from access to meaningful prison programs, and denied opportunities for any semblance of “normal” social
interaction.
1 Redacted Expert Report of Craig Haney, Ph.D., J.D., Ashker v. Brown, No. 4:09 CV
05796, at 13 (N.D. Cal. Mar. 12, 2015) (redacted copy on file with author) [hereinafter
Haney Expert Report].
2 See ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT NCJ 249209, USE
OF RESTRICTIVE HOUSING IN U.S. PRISONS AND JAILS, 2011–12, at 1 (2015).

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average day, as many as five percent of people in federal and state prisons are
held in extreme isolation.3
At the same time, extreme isolation has a significant deleterious impact
on those who experience it. Mental health professionals who have studied its
effects extensively have concluded that it is dehumanizing, striking at the
core of a person’s identity, and results in “deep emotional disturbances” and
an increase in self-harming behavior.4 It can lead to “social death,” leaving
persons subjected to the practice not only emotionally scarred and harmed,
but also unable to function effectively in social contexts moving forward.5 It
is thus a special kind of punishment—“one of the most severe forms of punishment that can be inflicted on human beings short of killing them.”6
Despite its ubiquity and impact, however, the doctrinal and theoretical
framework for regulating its use is impoverished, leaving correctional administrators, for the most part, free to dispense extreme isolation as punishment
whenever they see fit. The unfortunate result has been a trend over recent
decades towards greater use of solitary, for longer periods of time, for less
and less serious misconduct.7
This Article seeks to explain why punishment theory and doctrine—as
elaborated by courts—have had little to say about the use of extreme isolation, and then to fill that gap by providing a new framework for understanding how the Constitution in particular could and should regulate solitary’s
use. There are good reasons to believe that a new way of thinking about
solitary is necessary and will be welcomed by judges, lawyers, and academics.
As just one example, Justice Kennedy surprised many criminal justice advocates with an unexpected concurring opinion in Davis v. Ayala.8 In that
3 See id. A joint report issued in 2015 by Yale Law School’s Liman Program and the
Association of State Correctional Administrators estimated that in 2014, between five to six
percent of the 1.5 million people held in state prisons were held in administrative segregation. See LIMAN PROGRAM ET AL., TIME-IN-CELL: THE ASCA-LIMAN 2014 NATIONAL SURVEY OF
ADMINISTRATIVE SEGREGATION IN PRISON, at ii (2015). This figure did not include people
held in punitive segregation or local jails. See id.
4 Haney Expert Report, supra note 1, at 15–19, 25–27 (summarizing research); Bruno
M. Cormier & Paul J. Williams, La Privation Excessive de la Liberté, 11 CAN. PSYCHIATRIC ASS’N
J. 470, 484 (1966).
5 United States v. D.W., 198 F. Supp. 3d 18, 94 (E.D.N.Y. 2016) (quoting Samarth
Gupta, From Solitary to Society, HARV. POL. REV. (Feb. 7, 2016), http://harvardpolitics.com/
united-states/solitary-society); see also LISA GUENTHER, SOLITARY CONFINEMENT: SOCIAL
DEATH AND ITS AFTERLIVES (2013). Recent theory and research now indicate that “touch is
a primary platform for the development of secure attachments and cooperative relationships,” is “intimately involved in patterns of caregiving,” is “a powerful means by which
individuals reduce the suffering of others,” and also “promotes cooperation and reciprocal
altruism.” Jennifer L. Goetz et al., Compassion: An Evolutionary Analysis and Empirical Review,
136 PSYCHOL. BULL. 351, 360 (2010).
6 James Gilligan, M.D. & Bandy Lee, M.D., M.Div., Report to the New York City Board
of Correction, at 6 (Sept. 2013) (on file with author).
7 See Atul Gawande, Hellhole, NEW YORKER, Mar. 30, 2009, at 36, 42 https://
www.newyorker.com/magazine/2009/03/30/hellhole.
8 135 S. Ct. 2187 (2015).

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opinion, Justice Kennedy railed against the vices of solitary confinement,
reminding readers that in 1890, the Supreme Court itself observed that the
practice was extremely harmful to prisoners and had been abandoned by the
end of the nineteenth century.9 Justice Kennedy made similar remarks,
though less detailed, when he and Justice Breyer appeared before the House
Committee on Appropriations in March 2015.10 Justice Kennedy’s concurrence was all the more remarkable because, as he acknowledged, the issue
had “no direct bearing on the precise legal questions presented by this
case.”11
Justice Kennedy is not alone in paying greater attention to solitary confinement. The Federal “Administrative Maximum” (“ADX”) unit in Florence, Colorado, has been the subject of lengthy news coverage, and in 2016,
the Bureau of Prisons (BOP) agreed to make changes in response to a class
action lawsuit.12 Arizona, California, Colorado, Mississippi, New York State,
and New York City (with a jail population larger than the prison systems of
many states), among other jurisdictions, have all announced or been compelled to pursue reform of the use of solitary confinement.13 International
9 Id. at 2209 (Kennedy, J., concurring).
10 The Justices’ appearance in its entirety can be found online. See Financial Services
and General Government Appropriations for 2016: Hearing Before the Subcomm. on Fin. Servs. &
Gen. Gov’t of the H. Comm. on Appropriations, 114 Cong. 111 (2015) (statement of Anthony
Kennedy, Associate Justice, Supreme Court of the United States). During the hearing,
Justice Kennedy said that “[s]olitary confinement literally drives men mad” and noted that
other countries do a much better job providing human contact in correctional settings. Id.
at 122; Jess Bravin, Two Supreme Court Justices Say Criminal-Justice System Isn’t Working, WALL
ST. J. (Mar. 24, 2015), http://www.wsj.com/articles/two-supreme-court-justices-say-crimin
al-justice-system-isnt-working-1427197613.
11 Davis, 135 S. Ct. at 2208 (Kennedy, J., concurring).
12 See Cunningham v. Fed. Bureau of Prisons, No. 12-cv-01570, 2016 WL 8786871 (D.
Colo. Dec. 29, 2016) (approving settlement agreement); Mark Binelli, Inside America’s
Toughest Federal Prison, N.Y. TIMES MAG. (Mar. 26, 2015), https://www.nytimes.com/2015/
03/29/magazine/inside-americas-toughest-federal-prison.html; Andrew Cohen, Death, Yes,
but Torture at Supermax?, ATLANTIC (June 4, 2012), https://www.theatlantic.com/national/
archive/2012/06/death-yes-but-torture-at-supermax/258002/.
13 See Tim Hull, Arizona Agrees to Fix Prison Health System, COURTHOUSE NEWS SERV.
(Oct. 14, 2014), https://www.courthousenews.com/arizona-agrees-tofix-prison-health-sys
tem/ (reporting settlement in Arizona); Randall Pinkston & Phil Hirschkorn, Mississippi
Rethinks Solitary Confinement, CBS NEWS (May 18, 2013), https://www.cbsnews.com/news/
mississippi-rethinks-solitary-confinement/ (reporting settlement in Mississippi); Rick
Raemisch, Opinion, Why We Ended Long-Term Solitary Confinement in Colorado, N.Y. TIMES
(Oct. 12, 2017), https://www.nytimes.com/2017/10/12/opinion/solitary-confinementcolorado-prison.html (editorial by executive director of Colorado Department of Corrections announcing end to long-term solitary confinement in Colorado state prisons);
Michael Schwirtz & Michael Winerip, New York State Agrees to Overhaul Solitary Confinement in
Prisons, N.Y. TIMES (Dec. 16, 2015), https://www.nytimes.com/2015/12/17/nyregion/
new-york-state-agrees-to-overhaul-solitary-confinement-in-prisons.html (reporting New York
State settlement); Paige St. John, California Agrees to Move Thousands of Inmates Out of Solitary
Confinement, L.A. TIMES (Sept. 1, 2015), http://www.latimes.com/local/lanow/la-me-ln-cali
fornia-will-move-thousands-of-inmates-out-of-solitary-20150901-story.html (reporting settle-

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human rights instruments have been interpreted to condemn periods of
extreme isolation longer than fifteen days.14 And in President Barack
Obama’s final year in office, the federal government announced revisions to
the use of solitary confinement in federal prisons after a Department of Justice review of the practice.15
Despite the increased awareness of the harms caused by solitary confinement, the practice presents something of a conundrum within the law. As
opposed to criminal sentences or conditions of confinement, which have
been subjected to increasing legislative and judicial oversight,16 the use of
ment in California); Michael Winerip & Michael Schwirtz, Rikers to Ban Isolation for Inmates
21 and Younger, N.Y. TIMES (Jan. 13, 2015), https://www.nytimes.com/2015/01/14/nyre
gion/new-york-city-to-end-solitary-confinement-for-inmates-21-and-under-at-rikers.html
(reporting on changes to use of isolation for juveniles); see also Reuven Blau & Stephen
Rex Brown, Number of Rikers Island Inmates Placed in Solitary Confinement Shrinks to Just 1.7%
of City Jail Population, N.Y. DAILY NEWS (Apr. 21, 2016), http://www.nydailynews.com/newyork/rikers-island-solitary-population-drops-167-inmates-article-1.2609868 (reporting on
changes to rules in Rikers Island to reduce use of solitary). In the interest of full disclosure, I am one of the attorneys representing the class of all New York State prisoners in
litigation challenging New York State’s use of solitary confinement.
14 See U.N. Secretary-General, Interim Report of the Special Rapporteur of the Human Rights
Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶¶ 70, 76,
U.N. Doc. A/66/268 (Aug. 5, 2011).
15 See U.S. DEP’T OF JUSTICE, REPORT AND RECOMMENDATIONS CONCERNING THE USE OF
RESTRICTIVE HOUSING 104–11 (2016) (making recommendations to reduce use of solitary
confinement in federal facilities); Barack Obama, Opinion, Why We Must Rethink Solitary
Confinement, WASH. POST (Jan. 25, 2016), https://www.washingtonpost.com/opinions/ba
rack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8
965-0607e0e265ce_story.html (announcing reforms to the use of solitary confinement in
federal prison).
16 Legislatures, for example, set the lengths of sentences, subject to judicial oversight
for rough proportionality. See generally Alexander A. Reinert, Release as Remedy for Excessive
Punishment, 53 WM. & MARY L. REV. 1575, 1584–92 (2012) (summarizing proportionality
challenges to sentences). The judiciary has taken a greater role in cases involving capital
punishment, while striving to be respectful of legislative judgments about the appropriateness of its use. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (expressing concern that imposition of the death penalty may “descen[d] into brutality, transgressing the
constitutional commitment to decency and restraint”); Roper v. Simmons, 543 U.S. 551,
560–64, 574–75 (2005) (finding that the execution of defendants who committed a capital
crime while younger than eighteen years old was prohibited by the Eighth Amendment).
Courts have also been conscious of the role that juries should play in finding facts that
ultimately impact criminal sentences. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000)
(holding that any fact that increases penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt); Richard A.
Bierschbach & Stephanos Bibas, Constitutionally Tailoring Punishment, 112 MICH. L. REV.
397, 413–16 (2013) (discussing Apprendi and its progeny as giving juries an institutional
role in determining appropriate punishment). And since at least 1976, courts have looked
to Eighth Amendment principles to regulate all manners of conditions of confinement,
from access to medical care to overcrowding. See, e.g., Brown v. Plata, 563 U.S. 493 (2011)
(approving prisoner release order to remedy harms from overcrowding); Farmer v. Brennan, 511 U.S. 825 (1994) (holding that prison officials have a constitutional obligation to

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solitary confinement has been left in the hands of line officers and their
supervisors. Formal constitutional law has had little to say about the use of
extreme isolation in our prisons and jails. A judge who reviews a complaint
alleging that a person in prison was denied access to drinkable water for
thirty days would have no difficulty concluding that it stated a constitutional
claim, but that is not the case where the complaint alleges deprivation of
human contact for thirty days.17 The Eighth Amendment, which prohibits
“cruel and unusual punishments,”18 has never imposed muscular limitations
on the conditions or duration of solitary confinement, except for litigation
involving particular populations, such as the mentally ill or juveniles.19
Indeed, in the past two centuries the Supreme Court has only once addressed
solitary confinement’s relationship to the Eighth Amendment, and even then
it spoke obscurely.20 Instead, the Court has left a gap in any substantive limitation of how, why, and for how long extreme isolation can be used. The
only constitutional regulation of solitary confinement is procedural in
nature—the Court has insisted that when isolation reaches a sufficient duration and severity, some minimal procedures must be provided before prison
officials place a person in extreme isolation.21 If there are any true substantive limitations on the conditions presented by solitary or the length of time
that a person may be placed in extreme isolation, they have not come from
constitutional law.
Nor has statutory law provided any real governance. Most states abolished the use of solitary confinement as a form of criminal punishment long
ago.22 As Justice Kennedy noted in Davis, by 1890, the Supreme Court
remarked that states abandoned their experimentation with solitary confinement because the results were uniformly terrible—prisoners suffered serious
mental harm, driven to insanity and suicide, and those who survived the
ordeal were not prepared to return to life on the street.23 But although legislatures rejected the use of solitary confinement as a penal practice, prison
protect prisoners from assault by other prisoners); Estelle v. Gamble, 429 U.S. 97 (1976)
(holding that the Eighth Amendment guarantees a minimum standard of medical care).
17 This is not to say that deprivation of water imposes the same harms as social isolation. As discussed infra notes 151–63, however, courts tend to have greater difficulty conceptualizing the human need for social contact as even amenable to constitutional
regulation.
18 U.S. CONST. amend. VIII.
19 See, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1262 (N.D. Cal. 1995). Madrid, however, rejected claims that solitary confinement raised constitutional difficulties for people
who were not vulnerable because of their mental illness. Id. at 1261–62.
20 Hutto v. Finney, 437 U.S. 678 (1978). In Hutto, which I discuss in detail infra, the
Supreme Court affirmed a district court’s entry of an injunction with regard to conditions
of confinement in Arkansas prisons, including conditions in “the hole,” as it was called
there. The Court did not address the Eighth Amendment implications of the confinement
so much as the district court’s power to enter the remedial order.
21 See Wilkinson v. Austin, 545 U.S. 209 (2005); Sandin v. Conner, 515 U.S. 472 (1995).
22 See infra Section III.A.
23 See Davis v. Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring) (citing In
re Medley, 134 U.S. 160, 170 (1890)).

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administrators increasingly began using extreme isolation in the mid-1960s as
they addressed a new scale of prison violence and overcrowding.24 With the
construction of modern facilities tailor-made for extreme isolation, an
unheard of level of solitary confinement developed in this country, such that
the Supreme Court in 2005 (in a unanimous opinion authored by Justice
Kennedy) clinically (and without finding fault) described a facility in Ohio as
depriving people in prison of “almost any environmental or sensory stimuli
and of almost all human contact.”25 In the opaque world of prison discipline, no positive law regulates the use of solitary confinement. As prison
administrators have moved from using solitary in a limited fashion—imposing fifteen to thirty days in isolation for only the most violent instances of
misconduct in prison—to placing people in extreme isolation for years at a
time for nonviolent infractions, the only limitation is the conscience of
midlevel executive officials administering the discipline. It is thus news when
a member of the “Angola Three” is released after serving forty-five years in
prison, almost all while in solitary confinement,26 but no one looks askance
at the constitutional regime that tolerated such a long period of confinement
in extreme isolation.
This Article attempts to explain why the Constitution has failed to govern the use of solitary confinement in prisons and jails, and offers a way forward that might fill in the arguments for Justice Kennedy’s intuition that the
hands-off approach has held sway for too long. In so doing, I offer a critique
of some of the larger failings of punishment jurisprudence, building on my
own work and the work of others.27 I also integrate recent punishment jurisprudence with new research to show how current Eighth Amendment principles speak to the use of extreme isolation. In so doing, I provide a novel
24 See infra notes 57–60.
25 Wilkinson, 545 U.S. at 214.
26 Campbell Robertson, For 45 Years in Prison, Louisiana Man Kept Calm and Held Fast to
Hope, N.Y. TIMES (Feb. 20, 2016), https://www.nytimes.com/2016/02/21/us/for-45-yearsin-prison-louisiana-man-kept-calm-and-held-fast-to-hope.html?mtrref=www.google.com&gw
h=70E60D0D21A485ACA7799F1E67F4ECFD&gwt=PAy.
27 For example, I have argued that disparate strands of substantive Eighth Amendment
jurisprudence can be better integrated, that Eighth Amendment law is rooted in regressive
relationships of subordination, and that broader remedies should be available under the
Eighth Amendment. See Alexander A. Reinert, Eighth Amendment Gaps: Can Conditions of
Confinement Litigation Benefit from Proportionality Theory?, 36 FORDHAM URB. L.J. 53 (2009)
[hereinafter Reinert, Eighth Amendment Gaps]; Alexander A. Reinert, Reconceptualizing the
Eighth Amendment: Slaves, Prisoners, and “Cruel and Unusual” Punishment, 94 N.C. L. REV. 817
(2016) [hereinafter Reinert, Reconceptualizing the Eighth Amendment]; Reinert, supra note
16. Other scholars have argued for closer regulation of extreme isolation based on evidence of its harms and the trends in international human rights norms. See Thomas L.
Hafemeister & Jeff George, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing
Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, 90 DENV. U. L. REV. 1
(2012); Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.
115 (2008) [hereinafter Lobel, Prolonged Solitary]; Jules Lobel, The Liman Report and Alternatives to Prolonged Solitary Confinement, 125 YALE L.J. FORUM 238 (2016) [hereinafter Lobel,
The Liman Report].

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framework for understanding the judicial role in regulation of the use of
solitary confinement.
This Article breaks new scholarly ground, both doctrinally and theoretically. For although many scholars have written about solitary confinement
doctrine,28 none has combined a comprehensive jurisprudential and theoretical account for why judicial regulation of solitary confinement has been lacking with a well-developed analytical frame for altering past practice. Many
scholars have limited their arguments to the use of solitary confinement for
vulnerable populations, such as juveniles and inmates suffering from mental
illness.29 Others have focused more narrowly on international law30 or evidence of the harms of solitary.31 A few, like this Article, have linked critiques
28 See Elizabeth Alexander, “This Experiment, So Fatal”: Some Initial Thoughts on Strategic
Choices in the Campaign Against Solitary Confinement, 5 U.C. IRVINE L. REV. 1 (2015); Elizabeth
Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741 (2015); Fred Cohen, Isolation in Penal Settings: The Isolation-Restraint
Paradigm, 22 WASH. U. J.L. & POL’Y 295 (2006); Brittany Glidden, Necessary Suffering?: Weighing Government and Prison Interests in Determining What Is Cruel and Unusual, 49 AM. CRIM. L.
REV. 1815 (2012); Hafemeister & George, supra note 27; Lobel, Prolonged Solitary, supra
note 27; Holly Boyer, Comment, Home Sweet Hell: An Analysis of the Eighth Amendment’s ‘Cruel
and Unusual Punishment’ Clause as Applied to Supermax Prisons, 32 SW. U. L. REV. 317 (2003);
Shannon H. Church, Note, The Depth of Endurance: A Critical Look at Prolonged Solitary Confinement in Light of the Constitution and a Call to Reform, 103 KY. L.J. 639 (2014–2015);
Mariam Hinds & John Butler, Note, Solitary Confinement: Can the Courts Get Inmates out of the
Hole?, 11 STAN. J. C.R. & C.L. 331 (2015); Laura Matter, Note, Hey, I Think We’re Unconstitutionally Alone Now: The Eighth Amendment Protects Social Interaction as a Basic Human Need, 14 J.
GENDER RACE & JUST. 265 (2010); Charles A. Pettigrew, Comment, Technology and the Eighth
Amendment: The Problem of Supermax Prisons, 4 N.C. J.L. & TECH. 191 (2002); Alexa T.
Steinbuch, Note, The Movement Away from Solitary Confinement in the United States, 40 NEW
ENG. J. ON CRIM. & CIV. CONFINEMENT 499 (2014); Gertrude Strassburger, Comment, Judicial Inaction and Cruel and Unusual Punishment: Are Super-Maximum Walls Too High for the
Eighth Amendment?, 11 TEMP. POL. & CIV. RTS. L. REV. 199 (2001); Mikel-Meredith Weidman, Comment, The Culture of Judicial Deference and the Problem of Supermax Prisons, 51 UCLA
L. REV. 1505 (2004).
29 See Alexander, supra note 28, at 12–18; Tamar R. Birckhead, Children in Isolation: The
Solitary Confinement of Youth, 50 WAKE FOREST L. REV. 1 (2015); Hafemeister & George,
supra note 27, at 34–44; Joseph B. Allen, Note, Extending Hope into “The Hole”: Applying
Graham v. Florida to Supermax Prisons, 20 WM. & MARY BILL RTS. J. 217 (2011); John F.
Cockrell, Note, Solitary Confinement: The Law Today and the Way Forward, 37 LAW & PSYCHOL.
REV. 211 (2013); Anthony Giannetti, Note, The Solitary Confinement of Juveniles in Adult Jails
and Prisons: A Cruel and Unusual Punishment?, 30 BUFF. PUB. INT. L.J. 31 (2011–2012); Jessica Knowles, Comment, “The Shameful Wall of Exclusion”: How Solitary Confinement for
Inmates with Mental Illness Violates the Americans with Disabilities Act, 90 WASH. L. REV. 893
(2015); Jacob Zoghlin, Student Article, Punishment in Penal Institutions: (Dis)-Proportionality
in Isolation, 21 HUM. RTS. BRIEF 24 (2014).
30 See Birckhead, supra note 29, at 61–65; Lobel, Prolonged Solitary, supra note 27, at
116; Giannetti, supra note 29, at 52–56; Zoghlin, supra note 29, at 27.
31 See Alexander, supra note 28, at 39–48; Bennion, supra note ]28, at 775–77 (looking
to evidence of psychological harm to show deliberate indifference more generally); Cohen,
supra note 28, at 304–06; Hafemeister & George, supra note 27, at 34–40; Maximilienne
Bishop, Note, Supermax Prisons: Increasing Security or Permitting Persecution?, 47 ARIZ. L. REV.

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of solitary to Eighth Amendment proportionality jurisprudence,32 but none
has grounded that critique in the history recounted here.
This Article also provides a new theoretical framework to complement
its doctrinal insights. What commentators have overlooked is that the Eighth
Amendment has proved a poor fit for regulating the use of solitary confinement because there are disparate strands of Eighth Amendment jurisprudence that trigger doctrines of deference that might be inappropriate in the
context in which solitary confinement is used. Courts are loath to interfere
with legislative decisions about appropriate criminal sentences because of
institutional legitimacy concerns—legislatures speak for the people and their
judgment about what punishment is appropriate for certain crimes is one
that is owed due deference. Similarly, courts hesitate to second-guess the
response of a prison official to a moment of crisis, say, a disruptive prisoner,
because of institutional competence concerns—prison administrators are
experts in their field and should be given ample leeway to make split-second
decisions.
Decisions about the use of solitary confinement appeal to courts’ deferential frame in both ways. Solitary confinement in many ways looks like a
criminal sentence—an official is deciding how long someone should experience certain conditions of confinement as a consequence for misbehavior.
Similarly, the decision to use solitary confinement can be seen as a response
to an immediate threat to order—a person with expertise in prison administration is deciding the extent of extreme isolation that will ensure safety and
security within a particular facility. The combination of themes of institutional competence and institutional legitimacy builds deference onto deference, making courts hesitate to enter the fray, let alone to lay down
guidelines.
As I will argue, however, neither mode of deference may be appropriate
in the context of solitary. Prison administrators are not publicly accountable
in the way that legislators are, and it is difficult to argue that their use of
solitary confinement is the product of majoritarian decisionmaking. Courts
should therefore not be as concerned about institutional legitimacy when
reviewing the constitutionality of particular sentences to solitary confinement. Moreover, there are reasons to question whether the use of solitary
confinement is a product of the professional judgment that characterizes
other penological decisions to which courts often defer.
I develop these theoretical and doctrinal arguments over four Parts. In
Part I, I briefly review the history of the use of solitary confinement, showing
that in the nineteenth century it was rejected by legislatures as too harsh for
461, 468–69 (2005); Shira E. Gordon, Note, Solitary Confinement, Public Safety, and Recidivism, 47 U. MICH. J.L. REFORM 495, 503–07 (2014); Hinds & Butler, supra note 28, at
343–49; Zoghlin, supra note 29, at 26.
32 See Glidden, supra note 28, at 1837–47; Reinert, Eighth Amendment Gaps, supra note
27, at 68–76; Allen, supra note 29, at 240–46; Giannetti, supra note 29, at 49–52; Julia L.
Torti, Note, Accounting for Punishment in Proportionality Review, 88 N.Y.U. L. REV. 1908,
1922–30 (2013); Zoghlin, supra note 29, at 28–29.

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use as a criminal sanction, only to be embraced anew as a device for prison
discipline in the mid-twentieth century. Key to this account is that correctional officers and administrators, not democratically accountable legislators,
drove the renewed embrace of solitary confinement. In Part II, I provide an
overview of the procedural and substantive principles that have imposed
almost no constraints on the use of extreme isolation.
In Part III, I develop the argument for how a challenge to solitary confinement could fit within recent developments in Eighth Amendment doctrine. The new approach I outline does not require a categorical
condemnation of extreme isolation, notwithstanding powerful arguments in
favor of such a prohibition. Rather, resting on a more populist strand of
Eighth Amendment jurisprudence—evolving standards of decency as
reflected by punishment trends in state and federal systems—I argue that
there is space in existing Eighth Amendment doctrine for judges to engage
in greater scrutiny of solitary confinement practices. The result would not be
a bar to the use of solitary, but greater regulation of how, why, and for how
long solitary is used. The path forward is not well-traveled, but is marked
nonetheless. The best example of this new approach comes from cases challenging the use of the death penalty and life without parole (“LWOP”) for
specific groups of offenders such as juveniles or people with intellectual disabilities. The lesson from those cases, all announced after 2000 and often by
narrow majorities led by Justice Kennedy, is that specific punishment practices may be unconstitutional when a confluence of factors is present. These
cases are not sufficient on their own—making use of them also requires
closely scrutinizing the regulatory apparatus that currently governs the use of
solitary in most prisons. Therefore, in Part III, I also show that the landscape
of solitary confinement has changed to make judicial regulation of extreme
isolation more palatable.
Although a judicial revision of solitary confinement can be supported by
developing Eighth Amendment jurisprudence, in Part IV I discuss some of
the theoretical insights that will complement this approach. Practically, solitary confinement’s use has grown over time in many jurisdictions, with little
oversight by any judicial system. This is largely a function of the administrative deference that pervades Eighth Amendment jurisprudence and the pressures of statutes such as the Prison Litigation Reform Act (PLRA)—most
judges do not think they are competent to question correctional judgments
about the need for measures such as solitary confinement, and even if they
did, the PLRA makes doing so extremely difficult.33 Overcoming these barri33 For example, one portion of the PLRA imposes barriers to any judicial relief sought
by people held in prison, see 42 U.S.C. § 1997e (2012), while another specifically limits the
ability of courts to impose the kinds of injunctive relief that might be necessary to regulate
the use of solitary, see 18 U.S.C. § 3626(a). Even without the PLRA, judicial attitudes are
surely swayed by a perception of the dangers faced by prison officials and the need for
flexibility in responding to misbehavior. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 224
(2005) (stating that harsh conditions in solitary may be necessary “in light of the danger
that high-risk inmates pose both to prison officials and to other prisoners”)

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ers requires recognition that Eighth Amendment doctrine is truly chimerical—it imposes different limitations in different contexts, and solitary
confinement spans different models of regulation. Extreme isolation is not a
formal punishment imposed by legislatures, judges, and jury; nor is it a splitsecond response to a crisis that correctional staff are best equipped to
address. As such, it can be challenging to fit revision of solitary confinement
into any one model of Eighth Amendment regulation. But one must start by
recognizing that Eighth Amendment deference is premised upon decisionmaking models that are quite different from the context in which solitary
confinement is used.
I.

A BRIEF HISTORY

OF THE

PRACTICE

OF

SOLITARY CONFINEMENT

The use of solitary confinement has been debated since at least the
eighteenth century.34 In this Part, I provide a necessarily abbreviated history
of the practice. In vogue as a statutorily enacted mode of punishment in the
eighteenth and early nineteenth centuries, it soon passed into disfavor
because of the harm it caused and the lack of any observable benefits.35 By
the end of the nineteenth century, state legislatures had concluded that it
was not an appropriate punishment for violations of criminal law.36 Yet it
reemerged in force in the 1960s and 1970s as a disciplinary response to disorder within prison, and by the 1990s many states constructed facilities dedicated solely to solitary confinement.37 Extreme isolation is now common in
every correctional system—it is estimated that nearly 20% of federal and state
prisoners and 18% of local jail detainees have spent some time in extreme
isolation, and on an average day about 4.4% of people in prison are held in
some form of restrictive housing.38 For reasons that will become clear in
Parts II and III of this Article, what is key to this account is that line officers
and their supervisors, not democratically accountable legislators, have driven
the renewed embrace of solitary confinement.
The use of solitary confinement dates back at least three centuries. Early
penologists in both Europe and the United States were attracted to the order
it provided to the developing penitentiary system, even as they were conscious of its debilitating effects.39 English and Dutch observers noted the
increase in mental illness, insanity, and suicide among those confined to solitary confinement,40 but as Craig Haney and Mona Lynch note, solitary confinement was appealing despite these harms because the operative theory of
criminality emphasized the need to control the minds of prisoners so as to
34 For a thorough history of the subject, see 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, 481–96 (1997).
35 Id. at 482.
36 See id. at 486–87.
37 Id. at 480.
38 See BECK, supra note 2, at 1.
39 Haney & Lynch, supra note 34, at 482.
40 Id. at 482–83.

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compel internal change.41 The Dutch model was particularly informative,
because houses of correction (precursors to penitentiaries) originated in the
Dutch Republic and the criminological model that governed there held sway
in both the rest of Europe and abroad.42 And for the Dutch, “[m]ind control became a major objective, and solitary confinement fit into this
model.”43
This philosophy was influential in the late eighteenth and early nineteenth century United States. According to Louis Masur, “By the 1770s and
1780s, nearly everyone was abuzz with the possibility of solitary confinement.”44 The Walnut Street Jail began in the 1790s by confining a small
number of offenders to continuous solitary confinement.45 But by 1800,
Walnut Street was overcrowded and in a state of disrepair; the true Pennsylvania model—with continuous silence and solitary cells—emerged in the
1830s with the construction of the Cherry Hill and Pittsburgh penitentiaries.46 This contrasted with the Auburn and Sing Sing prisons in New York
State, which isolated prisoners at night and insisted on continual silence, but
which also enforced congregate labor during the day.47 Although these systems were different, the impact of solitary confinement was noted to be the
same throughout; even with the interval of congregate labor offered during
the day in New York, Beaumont and Tocqueville observed on their visit to the
United States: “This experiment, of which such favourable results had been
anticipated, proved fatal for the majority of the prisoners. It devours the
victim incessantly and unmercifully; it does not reform, it kills. The unfortunate creatures submitted to this experiment wasted away . . . .”48
Despite the fact that the conditions imposed in the Auburn system were
more extreme in many ways,49 the Pennsylvania system fared no better in the
41 Id. at 481–82.
42 Pieter Spierenburg, From Amsterdam to Auburn an Explanation for the Rise of the Prison
in Seventeenth-Century Holland and Nineteenth-Century America, 20 J. SOC. HIST. 439, 441–42
(1987).
43 Id. at 455.
44 LOUIS P. MASUR, RITES OF EXECUTION: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AMERICAN CULTURE, 1776–1865, at 81 (1989).
45 Spierenburg, supra note 42, at 452. According to Spierenburg, four out of 117 prisoners in 1795 and seven out of 159 in 1796 were held in solitary confinement. Id.
46 Id.; see also Haney & Lynch, supra note 34, at 483–84.
47 Haney & Lynch, supra note 34, at 483–84; Spierenburg, supra note 42, at 452.
48 See TORSTEN ERIKSSON, THE REFORMERS: AN HISTORICAL SURVEY OF PIONEER EXPERIMENTS IN THE TREATMENT OF CRIMINALS 49 (1976) (quoting Gustave de Beaumont & Alexis
de Tocqueville); see also Harry Elmer Barnes, The Historical Origin of the Prison System in
America, 12 J. AM. INST. CRIM. L. & CRIMINOLOGY 35, 53 (1921) (describing Auburn experiment as a “hopeless failure [that] led to a marked prevalence of sickness and insanity on
the part of the convicts in solitary confinement”).
49 Barnes, supra note 48, at 53. Barnes also distinguished the Pennsylvania and
Auburn systems in terms of the specific conditions of confinement that each imposed.
Unlike the Pennsylvania model in which prisoners were placed in two large, roomy cells
with provisions for labor and an individual outside yard, Auburn’s solitary confinement

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opinion of contemporaneous observers.50 Thus, by the turn of the nineteenth century, the experiment with widespread use of solitary appeared to
be over. States continued to use it in a limited fashion—prisoners condemned to death might spend substantial time in solitary prior to execution
and in some states a prisoner might spend a brief time in solitary on the
anniversary of the crime of conviction.51 To the extent it was used in these
ways, however, courts and legislatures were extremely cautious about the
duration to which prisoners were exposed—Minnesota, for example, authorized officials to place people convicted of first-degree murder in solitary confinement up to twelve days a year, “to be apportioned in periods of not
exceeding three days’ duration each, with an interval of not less than fourteen days intervening each two successive periods.”52 At the same time,
although solitary confinement was becoming less prevalent as formal punishment, it was contemplated as a means of discipline for misconduct within
prison.53
As Haney and Lynch document, at the beginning of the twentieth century, the impact of solitary confinement was recognized in cases addressing
the voluntariness of confessions and the defense of insanity.54 By this time,
long-term solitary confinement was unusual in the United States, either
explicitly abolished by statute or, even if permissible, having fallen into disrepute and disfavor by prison administrators.55 And terms of confinement in
solitary were measured in days and weeks, not months or years.56
cells more closely resembled those used in modern-day prisons—”a single small inside cell
without any labor or other adequate provisions for physical exercise.” Id.
50 The Supreme Court would ultimately describe it as a failed experiment because of
its impact on the mental health of people held in continuous solitary confinement. In re
Medley, 134 U.S. 160, 168 (1890); Haney & Lynch, supra note 34, at 484–85.
51 Haney & Lynch, supra note 34, at 487. The practice of placing people in solitary on
the anniversary of the crime persisted in some states into the mid to late twentieth century.
See, e.g., People v. Thompson, 44 N.E.2d 876 (Ill. 1942) (upholding sentence in which
defendant was ordered to be placed in solitary confinement on each anniversary of the
crime); State v. Stratton, 374 N.W.2d 31, 33–34 (Neb. 1985) (approving sentence which
included placing prisoner in solitary confinement on his birthday and the anniversary of
the crime of conviction); State v. Bennett, 508 N.W.2d 294, 298 (Neb. Ct. App. 1993)
(holding that court did not abuse its discretion by requiring that defendant be kept in
solitary confinement for twelve days on the anniversary of the offense, but finding that
statute repealing authority of court to order solitary confinement would be applied
retroactively).
52 Holden v. Minnesota, 137 U.S. 483, 488 (1890) (citing MINN. STAT. § 3 (1868)).
Along similar lines, in Massachusetts a prisoner could be placed in solitary confinement for
up to twenty days as part of a sentence to a penitentiary. Murphy v. Massachusetts, 177 U.S.
155, 162 (1900) (citing MASS. GEN. LAWS ch. 504 (1895)).
53 MINN. STAT. § 79.1 (1876) (abolishing solitary confinement as punishment but permitting its use for discipline).
54 Haney & Lynch, supra note 34, at 486–87.
55 Id. at 487.
56 Leach v. Whitbeck, 115 N.W. 253, 253–54 (Mich. 1908) (citing MICH. COMP. LAWS
§§ 2674, 2675 (1897)) (expressing shock at person having been held in solitary for three
months and citing to statute limiting such punishment to ten days).

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The expanded use of solitary confinement began in the mid-1960s and
expanded in the next twenty years as a response to increased violence and
disorder in federal and state prisons.57 What is significant about this expansion is that it was driven by corrections officials, not legislators. State legislatures had turned their backs on extreme isolation as a punishment for crime,
but corrections officials embraced it as a sanction for misbehavior in prison.
Over time, solitary confinement sentences stretched longer and solitary confinement units became more mechanized and devoid of human contact.
Today, for instance, prisoners may spend years in solitary conditions in facilities built specifically for that purpose with almost no human contact over the
course of the confinement.58
Indeed, when California announced recent reforms to solitary confinement in Ashker v. Brown, it was viewed as progress even though sentences to
solitary, even for nonviolent offenses, can now stretch to a year and beyond.59
And even in states that have limited disciplinary sentences to maximums of
thirty days or fewer, about ten percent of people are transferred at the end of
their disciplinary confinement to indefinite administrative segregation,
under which people experience conditions similar to punitive segregation.60
The history of the use of solitary confinement, then, is something of a
puzzle. As the penitentiary system developed in the United States, solitary
confinement was part and parcel of some systems of criminal punishment,
but was quickly discarded as the public and their representatives appreciated
the human cost.61 After solitary confinement reemerged as a dominant disciplinary practice in the mid to late twentieth century, it soon became more
extreme in both duration and intensity than the nineteenth-century practice.62 In the next Part of this Article, I explore what, if any, limits have been
imposed by positive law on the practice of extreme isolation over all of this
time.
II.

LEGAL CONSTRAINTS

ON THE

USE

OF

SOLITARY CONFINEMENT

For most of the history described above, judges have been observers on
the sidelines, taking little role in regulating the use of solitary confinement,
except where specific statutory provisions were at issue. To understand why
this is, it is necessary to consider the two sources of constitutional law that
bear on issues relating to a prison administrator’s use of solitary confine57 Haney & Lynch, supra note 34, at 487.
58 See Weidman, supra note 28, at 1525–27.
59 See Settlement Agreement at Attachment B, Ashker v. Brown, No. C 09-05796 (N.D.
Cal. Sept. 1, 2015) (providing that both battery without serious injury and “harassment”
could receive a “low” sentence of six months, an “expected” sentence of one year, and a
“high” sentence of eighteen months).
60 See Reply Expert Declaration of James Austin in Support of Plaintiffs’ Motion
Regarding Mentally Ill Prisoners in Segregation at 8, Coleman v. Brown, No. Civ. S 90-0520
(E.D. Cal. Aug. 23, 2013).
61 See Haney & Lynch, supra note 34, at 486–87.
62 See id. at 491–94.

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ment: the Fourteenth Amendment’s Due Process Clause and the Eighth
Amendment’s prohibition against “cruel and unusual punishments.” This
Part begins with the Fourteenth Amendment, because it can be quickly summarized, before turning to the more complex and applicable Eighth Amendment doctrine.
A.

Solitary Confinement and Procedural Due Process

The Fourteenth Amendment requires that “due process of law” be provided before the government deprives a person of life, liberty, or property.63
“Due process” has come to have both a procedural and a substantive meaning. I will focus on the procedural component of the Due Process Clause as
it relates to the use of solitary confinement because for my purposes the substantive component of “due process” overlaps with the boundaries of the
Eighth Amendment.64
To trigger the procedural protections of the Due Process Clause, state
action must implicate some interest protected as liberty, life, or property.65
Under controlling caselaw, placement in solitary confinement implicates a
liberty interest when it imposes conditions that are “atypical and significant. . . in relation to the ordinary incidents of prison life.”66 What this
means varies from court to court, in part because whether something is “atypical and significant” depends in large part on the baseline, the “ordinary incidents of prison life.” The Supreme Court has acknowledged this
“appropriate baseline” question but has not decided it,67 leaving lower courts
to their own devices.
Courts have taken divergent approaches to this problem, as illustrated by
the law in three different circuits. The Second Circuit, after a series of cases
emphasizing the need for careful fact finding concerning the conditions of
confinement,68 adopted a set of presumptions for determining whether
placement in segregation is atypical and significant. If the confinement is
63 U.S. CONST. amend. XIV, § 1.
64 See County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (“[I]f a constitutional
claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” (quoting United States v. Lanier,
520 U.S. 259, 272 n.7 (1997)) (internal quotation marks omitted)).
65 See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (“The procedural component of the Due Process Clause does not protect everything that might be
described as a ‘benefit.’”).
66 Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515 U.S.
472, 483–84 (1995)) (internal quotation marks omitted).
67 Id. (stating that the supermax conditions before it were “atypical and significant . . .
under any plausible baseline”).
68 See, e.g., Wright v. Coughlin, 132 F.3d 133 (2d Cir. 1998); Giakoumelos v. Coughlin,
88 F.3d 56, 62 (2d Cir. 1996); Frazier v. Coughlin, 81 F.3d 313, 317–18 (2d Cir. 1996) (per
curiam) (holding that twelve days in prehearing confinement is not atypical and significant
based on the district court’s “extensive fact-finding”).

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101 days or less under “the normal conditions of [solitary] confinement,”69
no liberty interest is at stake unless aggravating factors of some sort are
shown.70 If the confinement is 305 days or more under “normal” conditions,
the plaintiff has been deprived of liberty.71 For periods between 101 and 305
days, the court prescribed “development of a detailed record,” which might
include “evidence of the psychological effects of prolonged confinement in
isolation.”72 In the Tenth Circuit, by contrast, courts use the following factors to help establish a baseline for whether confinement conditions created
a protected liberty interest: (1) whether the segregation “furthers a legitimate penological interest, such as safety,” (2) whether the conditions in the
placement are extreme, (3) whether the punishment impacts the inmate’s
duration of incarceration, and (4) whether the placement was indeterminate.73 The Seventh Circuit has suggested at times that the proper baseline
is the most severe conditions that exist in any prison system in the United
States, rendering procedural due process principles basically inapplicable to
the regulation of solitary confinement.74
The bottom line is that any assessment of a due process complaint is
often extremely fact intensive. For instance, in Allah v. Bartkowski, the Third
Circuit first considered the length and conditions of restrictive confinement
(as compared to other prisoners in segregation).75 The court found that the
prisoner experienced “atypical and significant” conditions because he was
held for six years and, unlike other prisoners in administrative segregation,
had no access to the commissary, “window visits,” or recreation in an area
that is not caged.76 And the prisoner alleged that the process by which he
was placed in segregated confinement was characterized by a “litany of
defects,” including that the individuals tasked with reviewing whether to
release prisoners from the conditions were unfamiliar with governing regulations and convened hearings that were “perfunctory and without
substance.”77
69 Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000).
70 Id. at 232 n.5.
71 Id. The court said that “the duration of SHU confinement is a distinct factor bearing on atypicality and must be carefully considered.” Id. at 231. The relevant time period
is the time actually served in cases where the prisoner does not serve the entire sentence.
Id. at 231 n.4; accord Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (per curiam). But
the court has recently held that for purposes of analyzing the qualified immunity of the
hearing officer, the focus should be on the sentence imposed by the hearing officer,
regardless of whether it was later modified. Id. at 98.
72 Colon, 215 F.3d at 232.
73 Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).
74 See Wagner v. Hanks, 128 F.3d 1173 (7th Cir. 1997). The Seventh Circuit’s logic is
that any prisoner could theoretically be transferred to any prison in the United States
because of the Interstate Compact for Adult Offender Supervision. Id. at 1176.
75 Allah v. Bartkowski, 574 F. App’x 135, 138–40 (3d Cir. 2014) (per curiam).
76 Id. at 139.
77 Id. at 139–40 (noting also that one of the members of the review committee “never
engaged in factfinding or weighing of the evidence”).

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No matter which circuit one is in, however, for “short” periods of confinement in solitary (generally anywhere from thirty to one hundred days,
but sometimes longer), no procedures at all are required before a person is
placed there. By contrast, the United Nations Special Rapporteur on Torture has suggested that periods of extreme isolation longer than fifteen days
can constitute “cruel and inhuman treatment” prohibited by international
law.78 But our domestic law contemplates that individuals can be held for
periods exceeding that by multiples of five or six, without providing even
minimal procedural protections.
Even when the length of time in solitary exceeds that which is considered “atypical and significant,” and therefore is sufficient to trigger due process protections, very limited procedures apply. Procedural due process
provides an opportunity to know why one is being placed in solitary, an
opportunity to be heard as to why one should not be placed in solitary, which
includes a hearing before an impartial decisionmaker (but potentially an
employee of the prison), and a limited opportunity to examine witnesses and
offer evidence (but no right to be represented).79 Even accepting that there
is a substantive dimension to procedural justice,80 the minimal process provided is unlikely to offer much in the way of real constraints. For even when
they are in play, procedural due process principles cannot limit the length of
solitary, the conditions under which prisoners experience solitary, or the categories of prisoners who are exposed to solitary.
78 U.N. Secretary-General, supra note 14, at ?? 74, 76. I discuss the application of international human rights instruments in further detail later in the Article. See infra Part III.
79 Wilkinson v. Austin, 545 U.S. 209, 216 (2005); see also id. at 226–30 (discussing procedures necessary before placement of person in Ohio’s most isolating maximum security
unit); Wolff v. McDonnell, 418 U.S. 539 (1974) (discussing procedural requirements
before good-time credit can be taken away).
80 PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 8–9 (1976) (noting the importance
of ritual and “process imperatives”); ROBERT M. COVER & OWEN M. FISS, THE STRUCTURE OF
PROCEDURE (1979) (describing procedure as a social, cultural institution); DUE PROCESS:
NOMOS XVIII (J. Roland Pennock & John W. Chapman eds., 1977) (collection of essays
explaining nature and rationale of procedural fairness); Owen M. Fiss, Foreword: The Forms
of Justice, 93 HARV. L. REV. 1, 2 (1979) (“Adjudication is the social process by which judges
give meaning to our public values.”); E. Allan Lind et al., In the Eye of the Beholder: Tort
Litigants’ Evaluations of Their Experiences in the Civil Justice System, 24 LAW & SOC’Y REV. 953
(1990) (presenting evidence that participants in legal system evaluated procedural justice
and outcomes based on perceptions of procedural fairness); 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, 49–52 (1976) (observing importance
of dignitary concerns); Frank I. Michelman, The Supreme Court and Litigation Access Fees: The
Right to Protect One’s Rights—Part I, 1973 DUKE L.J. 1153, 1172–77 (defining dignity, participation, deterrence, and effectuation as litigation values); Judith Resnik, Precluding Appeals,
70 CORNELL L. REV. 603, 619 (1985) (“[A]lthough procedure exists to provide outcomes,
procedure also serves nonoutcome related functions—to instruct about and to act out the
political system, to legitimate decisions of the state, to dignify the participants, and to make
meaningful the interaction between individuals and the state.”); Judith Resnik, Tiers, 57 S.
CAL. L. REV. 837, 840 (1984) (“Procedure is a mechanism for expressing political and
social relationships and is a device for producing outcomes.”).

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Solitary Confinement and the Eighth Amendment

Unlike procedural due process, the Eighth Amendment on its face
might seem like a better candidate to limit whether one can use solitary confinement at all, for it is substantive, prohibiting the use of “cruel and unusual” punishment.81 But as I will discuss below, the Eighth Amendment has
done little to no work in the area of solitary confinement. To understand
why, however, it is necessary to first understand the basic parameters of
Eighth Amendment regulation.
1.

Eighth Amendment Fundamentals

Perhaps more than any other single provision of the Bill of Rights, the
Eighth Amendment has come to occupy multiple roles in regulating criminal
justice (a breadth of coverage that has garnered criticism in many corners).82
It regulates both the formal sentences that may be imposed for particular
offenses, as well as the conditions under which prisoners must serve those
sentences.83 When a criminal defendant receives a sentence upon conviction, the Eighth Amendment imposes two related constraints: (1) a proportionality standard that very loosely applies to the punishment, including the
length of any incarceration;84 and (2) an “evolving standards of decency” test
that the punishment must not transgress.85 And after the sentence is handed
81 U.S. CONST. amend. VIII.
82 Indeed, some scholars have criticized Eighth Amendment jurisprudence for being
so capacious. See, e.g., John D. Castiglione, Qualitative and Quantitative Proportionality: A
Specific Critique of Retributivism, 71 OHIO ST. L.J. 71, 78–79 (2010) (arguing that proportionality jurisprudence should not permit challenges to length of sentence); Laurence Claus,
Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose?, 31
HARV. J.L. & PUB. POL’Y 35, 45 (2008); Steven Grossman, Proportionality in Non-Capital Sentencing: The Supreme Court’s Tortured Approach to Cruel and Unusual Punishment, 84 KY. L.J.
107, 107 (1995) (describing the Court’s proportionality jurisprudence as “confused”);
Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal Sentencing, 40 ARIZ. ST. L.J.
527, 528 (2008) (criticizing the Court for failing to “provide practical guidance or a coherent theoretical framework for analyzing proportionality challenges”); Youngjae Lee, The
Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 684 (2005) [hereinafter
Lee, The Constitutional Right Against Excessive Punishment] (describing Eighth Amendment
jurisprudence as “ineffectual and incoherent”); Tom Stacy, Cleaning up the Eighth Amendment Mess, 14 WM. & MARY BILL RTS. J. 475 (2005).
83 The Supreme Court first struck down a sentence for violating the Eighth Amendment in 1910. See Weems v. United States, 217 U.S. 349 (1910). In 1962, the Court found
that the Eighth Amendment was incorporated against the States via the Fourteenth
Amendment. See Robinson v. California, 370 U.S. 660, 667 (1962). And in 1976, the Court
ushered in modern prison conditions jurisprudence by holding that the Eighth Amendment protected prisoners from harm caused by the “deliberate indifference” of prison officials. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
84 See, e.g., Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in
part and concurring in the judgment) (articulating “narrow proportionality principle”).
85 The “evolving standards of decency” standard was introduced in Trop v. Dulles, 356
U.S. 86, 101 (1958) (plurality opinion). Since the beginning of the twentieth century, the
Supreme Court has found sentences to be unconstitutional—under either proportionality

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down, the same “evolving standards of decency” principle regulates prison
conditions, including the provision of medical and mental health care, the
use of force by officers to impose order, the level of supervision required to
ensure safety within prisons, and the material conditions that form the daily
lived experience of people in prisons such as living space, food, and sanitation.86 Thus, whether a prisoner is challenging the length of a particular
sentence,87 the appropriateness of execution for particular crimes or categories of offenders,88 an officer’s use of force,89 a prison’s failure to provide
medical care,90 a failure to protect from assault,91 or harmful conditions of

or “evolving standards” analysis—in only a handful of noncapital cases involving adults. See
Solem v. Helm, 463 U.S. 277 (1983); Trop, 356 U.S. at 101 (plurality opinion). The Court
generally has held that sentences of terms of years will almost never be found to be unconstitutional. See Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11
(2003) (plurality opinion); Harmelin, 501 U.S. 957; Hutto v. Davis, 454 U.S. 370 (1982)
(per curiam). To the extent that the Court has been at all receptive to arguments regarding the constitutionality of both capital and noncapital sentences, the defendant has had
specific characteristics that rendered a particular punishment inappropriate. See Miller v.
Alabama, 567 U.S. 460, 479 (2012) (holding that the Eighth Amendment prohibits imposition of mandatory LWOP sentence on juveniles who commit capital crimes); Graham v.
Florida, 560 U.S. 48, 75–76 (2010) (ruling that Eighth Amendment prohibits imposition of
LWOP sentence on juveniles who do not commit capital crimes); Roper v. Simmons, 543
U.S. 551, 571–73 (2005) (ruling that death penalty for juveniles violates Eighth Amendment); Atkins v. Virginia, 536 U.S. 304 (2002) (deeming it unconstitutional to execute
defendant who is mentally handicapped); cf. Kennedy v. Louisiana, 554 U.S. 407 (2008)
(holding death penalty disproportionate for conviction of a crime that did not involve
death).
86 See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (handcuffing prisoner to hitching post
without water or bathroom for seven hours well after its necessity for maintaining order
had dissipated violated Eighth Amendment); Farmer v. Brennan, 511 U.S. 825 (1994) (failure to protect from other prisoners); Helling v. McKinney, 509 U.S. 25, 33 (1993) (deliberate indifference to secondhand tobacco smoke); Hudson v. McMillian, 503 U.S. 1, 7 (1992)
(ruling that use of force that is “malicious[ ] and sadistic[ ]” violates Eighth Amendment);
Wilson v. Seiter, 501 U.S. 294, 304–05 (1991) (requiring access to minimum standards of
warmth and exercise); Rhodes v. Chapman, 452 U.S. 337 (1981) (requiring conditions of
confinement that meet minimum standards); Estelle, 429 U.S. 97 (medical care); see also
Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999) (holding that assault invited by staff member’s statements to other inmates is actionable); LaBounty v. Coughlin, 137 F.3d 68 (2d
Cir. 1998) (deliberate indifference to asbestos exposure); Fischl v. Armitage, 128 F.3d 50
(2d Cir. 1997) (assault made possible by officer’s opening of cell).
87 See, e.g., Solem, 463 U.S. 277.
88 See, e.g., Kennedy, 554 U.S. 407 (finding capital punishment unconstitutional where
defendant was convicted of a crime that did not involve death); Roper, 543 U.S. 551 (holding that it was unconstitutional to execute a defendant who committed crime as a juvenile); Atkins, 536 U.S. 304 (holding that Eighth Amendment prohibited execution of
mentally handicapped prisoner).
89 See, e.g., Hudson, 503 U.S. 1.
90 See, e.g., Estelle, 429 U.S. at 104.
91 See, e.g., Farmer, 511 U.S. 825 (failure to protect from other prisoners).

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confinement in general,92 the Eighth Amendment will guide resolution of
the controversy. It is fair to say that the Eighth Amendment imposes constraints on state action, albeit with ample leeway, from the day a criminal
sentence is imposed until the day a person is released from custody.
The breadth of Eighth Amendment doctrine is also a weakness: the
structure of any Eighth Amendment claim depends on the context of the
particular challenge. An Eighth Amendment challenge to a sentence of confinement for a term of years must meet an extremely difficult gross proportionality standard that almost always results in the sentence being upheld,
whereas challenges to uniquely harsh sentences such as death or life imprisonment without the possibility of parole have been subjected to a different
proportionality standard that provides more avenues for relief.93 Even for
cases involving conditions of confinement, the Eighth Amendment is chimerical—when a prisoner alleges that corrections officers have used excessive
force, she must show that the force was used with the intent to cause harm;
when a prisoner alleges that corrections officials failed to provide adequate
medical care or failed to protect the prisoner from harm inflicted by others,
she must show that the official behaved recklessly with respect to the risk that
the prisoner would suffer harm.94
2.

Judicial Deference Across Eighth Amendment Doctrine

The reasons for these differing standards can be found, broadly, in
themes of institutional legitimacy and institutional competence. In general,
the Supreme Court has recognized that democratically accountable legislatures should be given almost unquestioned authority to decide whether a
particular person “deserves” a particular prison term for engaging in particular conduct.95 This is because courts are not legitimate sites for making the
92 See, e.g., Rhodes v. Chapman, 452 U.S. 337 (1981) (conditions of confinement); see
also Helling v. McKinney, 509 U.S. 25 (1993) (permitting lawsuit based on exposure to
secondhand tobacco smoke); LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998) (finding
that claim could be made for exposure to asbestos).
93 Compare, e.g., Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam) (rejecting
Eighth Amendment challenge to a prison term of forty years and fine of $20,000 for “possession and distribution of approximately nine ounces of marihuana”), with Solem v.
Helm, 463 U.S. 277 296–300 (1983) (setting aside a LWOP sentence imposed under a
South Dakota recidivist statute).
94 Some conditions cases use a “deliberate indifference” standard, which is akin to
recklessness. See Farmer, 511 U.S. 825 (failure to protect from other prisoners); Helling, 509
U.S. 25 (deliberate indifference to secondhand tobacco smoke); Wilson v. Seiter, 501 U.S.
294, 304–05 (1991) (requiring access to minimum standards of warmth and exercise);
Rhodes, 452 U.S. 337 (requiring conditions of confinement that meet minimum standards);
Estelle, 429 U.S. 97 (medical care). Cases involving use of force, by contrast, use a “malicious[ ] and sadistic[ ]” standard. Hudson, 503 U.S. 1.
95 One is illustration is the Court’s fractured decision in Harmelin v. Michigan, 501 U.S.
957 (1991). Justice Scalia, announcing the judgment of the Court, wrote solely for himself
and Chief Justice Rehnquist to argue that the proportionality principle applied only to
death penalty cases, not term-of-years sentences, because legislatures are best situated to

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important decision about how much certain conduct should be punished,
involving as it does difficult moral, empirical, and fiscal issues which are better resolved by democratically accountable actors.96 The death penalty is
treated differently because it is an “absolute renunciation of all that is
embodied in our concept of humanity.”97
Along with themes of institutional legitimacy, Eighth Amendment jurisprudence is also informed by concerns about institutional competence. The
standard for establishing excessive use of force, for instance, is set intentiondetermine appropriate sentence lengths. Id. at 988 (opinion of Scalia, J.). Justice Kennedy, writing for himself and Justices O’Connor and Souter, argued in favor of a proportionality limitation on sentences to terms of years, but acknowledged that “prison terms for
specific crimes involves a substantive penological judgment that, as a general matter, is
‘properly within the province of legislatures, not courts.’” Id. at 998 (Kennedy, J., concurring in part and concurring in the judgment) (quoting Rummel v. Estelle, 445 U.S. 263,
275–76 (1980)). And the dissenters, Justices White, Blackmun, and Stevens, similarly recognized that legislatures were to be given profound deference in setting appropriate punishments. Id. at 1016 (White, J., dissenting); see also Ewing v. California, 538 U.S. 11, 31–32
(2003) (Scalia, J., concurring in the judgment) (objecting that proportionality principle is
fundamentally a policy, not legal, judgment); Rummel, 445 U.S. at 274 (“[O]ne could argue
without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter
of legislative prerogative.”).
96 See, e.g., Harmelin, 501 U.S. at 990 (opinion of Scalia, J.) (“Diversity not only in
policy, but in the means of implementing policy, is the very raison d’être of our federal
system. Though the different needs and concerns of other States may induce them to treat
simple possession of 672 grams of cocaine as a relatively minor offense, nothing in the
Constitution requires Michigan to follow suit.” (citations omitted)).
97 Furman v. Georgia, 408 U.S. 238, 306 (Stewart, J., concurring); see also Kennedy v.
Louisiana, 554 U.S. 407, 420 (2008) (expressing concern that imposition of death penalty
may “descen[d] into brutality, transgressing the constitutional commitment to decency
and restraint”). For instance, sentencing regimes that mandate the death penalty upon
conviction, without qualification, have been declared unconstitutional. See Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280
(1976) (plurality opinion); cf. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (mitigating factors may be given individualized consideration prior to imposition of
death penalty). Similarly, the Court has declared unconstitutional the imposition of the
death penalty for crimes that do not involve the death of another. Kennedy, 554 U.S. 407
(child rape); Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion) (rape of an adult
woman). And the Court has declared that the states may be prohibited from executing
particular categories of defendants. Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting
death sentence for those who commit crime while under the age of eighteen); Atkins v.
Virginia, 536 U.S. 304 (2002) (ruling death sentences for the mentally handicapped
unconstitutional); Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality opinion)
(prohibiting death sentence for those who commit crime while under the age of sixteen).
The Court has also reviewed challenges to execution carried out by particular means. Baze
v. Rees, 553 U.S. 35 (2008) (plurality opinion) (ruling death sentence carried out pursuant
to three-drug lethal injection not per se unconstitutional); Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 463–64 (1947) (plurality opinion) (rejecting claim that it violated
the Eighth Amendment to attempt to execute someone by electrocution after a first
attempt failed).

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ally high because courts recognize that the decision to use force is made in
split-second increments, based on variables that are difficult for courts to
assess.98 By contrast, there is a less stringent standard for demonstrating the
unconstitutionality of particular conditions of confinement, or particular
deprivations of medical care.99 This is because the decision whether, say, to
provide medical care is often made after deliberation under less stressful conditions than the decision whether to use force, giving courts more leeway to
inquire into the grounds for denying or delaying care.100
3.

Deference in Action

One can see these themes in operation when one looks in more granular detail at how different Eighth Amendment challenges are resolved. To
succeed on a proportionality challenge to a sentence of a term of years, for
example, a challenger must show that the severity of a sentence is “grossly”
disproportionate to the seriousness of the offender’s crime.101 If a court
finds that this extremely high standard is met, then it will go on to consider
whether other states punish the same crime as severely, as well as whether
more serious crimes are punished more severely.102 The Supreme Court has
not found that a sentence to a term of years is disproportionate since 1983,
illustrating how difficult this standard is to meet.103
For challenges to sentences other than a term of years, such as a death
sentence or life without the possibility of parole, many factors contribute to
the proportionality analysis, including how the punishment fits with different
penological theories, the types of punishment meted out by sovereign states
and even internationally, and the court’s own subjective evaluation of pro98 For use of force cases, a plaintiff must show that an official acted “maliciously and
sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320–21
(1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)) (describing standard for use of force during prison riot); see also Hudson, 503 U.S. at 5–6 (extending Whitley
standard to all allegations of excessive force).
99 See, e.g., Farmer, 511 U.S. at 837 (describing “deliberate indifference” standard as
akin to recklessness).
100 See, e.g., Whitley, 475 U.S. at 320–22.
101 Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in the
judgment); Solem v. Helm, 463 U.S. 277, 290–91 (1983).
102 Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in the
judgment).
103 See Ewing v. California, 538 U.S. 11 (2003) (plurality opinion) (upholding California’s “three strikes” law); Harmelin, 501 U.S. 957 (upholding sentence of LWOP for firsttime offender who was found guilty of possession of 650 grams of cocaine); Solem, 463 U.S.
277 (ruling that Eighth Amendment prohibited imposition of LWOP for nonviolent recidivist whose crimes were minor); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding sentence of forty years for possession with intent to distribute nine ounces of
marijuana); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding sentence of mandatory life
imprisonment under Texas recidivist statute).

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portionality.104 Applying this standard over the past fifteen years, the
Supreme Court has on numerous occasions found that the Eighth Amendment prohibited the imposition of a death sentence or life imprisonment
without the possibility of parole.105
When the Eighth Amendment is litigated in the context of conditions of
confinement, the questions are different, reflecting the different institutional
role of the courts. The focus is not on the kinds of comparisons at issue in
proportionality jurisprudence—how harsh is this sentence compared to the
culpability of the offender? Or what is the general consensus of relevant
jurisdictions in assessing the permissibility of this sentence for this kind of
offense? Instead, the questions center on the subjective state of mind of the
prison official imposing the conditions and the objective harm being created
by those conditions.106
This is not to say that there is no link between proportionality jurisprudence and conditions of confinement challenges.107 In Trop v. Dulles,108 the
Supreme Court struck down a punishment as “cruel and unusual,” without a
controlling opinion or agreement as to how best to operationalize the Eighth
Amendment in challenges to particular sentences.109 The statute invalidated
in Trop authorized federal courts to impose denationalization as a punishment for military desertion, a penalty that the Court found to be repugnant
to Eighth Amendment principles and international law.110 The plurality in
Trop based its decision on the consistency of denationalization with basic
norms of decency and not on a particular conception of a just punishment.111 Instead of reviewing the sentence for disproportionality, the Trop
plurality asked whether the penalty was prohibited by the Eighth Amend104 For a good example of how these factors are applied, see Roper v. Simmons, 543
U.S. 551 (2005), which held that the death penalty was disproportionate punishment for
those who committed a death-eligible crime while under the age of eighteen.
105 See Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory LWOP for
those under the age of eighteen at the time of their crimes violates the Eighth Amendment); Graham v. Florida, 560 U.S. 48, 81–82 (2010) (finding LWOP unconstitutional for
juveniles convicted of nonhomicide offenses); Kennedy v. Louisiana, 554 U.S. 407, 446
(2008) (finding death penalty to be disproportionate punishment for child rape); Roper,
543 U.S. at 560–64 (finding execution of defendants who committed capital crime while
younger than eighteen to be prohibited by the Eighth Amendment); Atkins v. Virginia, 536
U.S. 304, 311–13 (2002) (holding that death penalty for the mentally handicapped is
“excessive” because it is inconsistent with evolving standards of decency).
106 See Reinert, Eighth Amendment Gaps, supra note 27, at 69.
107 See Reinert, supra note 16, at 1584.
108 356 U.S. 86 (1958) (plurality opinion).
109 Id. at 104.
110 Id. at 98–99.
111 The four-Justice plurality in Trop viewed disproportionality as an invalid basis for
finding denationalization unconstitutional for the crime of desertion during war because
death was a constitutional punishment for the same crime. Id. It may also have been
difficult for the plurality to embrace a principle of proportionality when the sentence was
not subject to degrees, such as a term of years.

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ment’s guarantee of “civilized treatment.”112 In so doing, the Justices made
clear that “evolving standards of decency” were independent restrictions on
the government’s power to punish.113 The plurality identified within the
Eighth Amendment a basic concept of protecting dignity114 and reasoned
that traditional methods of punishment—fines, incarceration, and execution—were constitutionally permissible. Punishment that fell outside these
borders, however, would be reviewed with suspicion.115
4.

The Failure to Regulate Solitary Confinement Through the Eighth
Amendment

As the above discussion illustrates, Eighth Amendment doctrine is operative in at least three distinct contexts that could bear on solitary confinement.
It prohibits sentences that are grossly disproportionate, as measured by evolving standards of decency.116 It rejects conditions of confinement that
deprive people of life’s basic necessities.117 And it condemns administrative
responses to misbehavior that impose unnecessary pain for no legitimate
penological purpose.118
Despite this broad coverage, the Eighth Amendment has not historically
been applied by courts to regulate much of the use of extreme isolation. In
only one case has the Supreme Court addressed the question close to
squarely—Hutto v. Finney,119 a 1978 case in which the Court simply affirmed
the district court’s entry of an injunction with regard to conditions of con112 Id.
113 See id. at 99–101.
114 See id. at 100.
115 Id. (“[A]ny technique outside the bounds of these traditional penalties is constitutionally suspect.”). On the plurality’s reasoning, denationalization was incompatible with
basic standards of dignity because it deprives the individual of the “right to have rights.”
Id. at 101–02.
116 See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (holding that death penalty
may not be imposed on defendant convicted of rape of a child under the age of twelve);
Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (noting that Eighth Amendment’s proportionality principle
applies to both capital and noncapital sentences). In recent years, most proportionality
litigation has focused on the permissibility of the death penalty for certain types of crimes
or certain categories of defendants. See, e.g., Roper v. Simmons, 543 U.S. 551, 574 (2005)
(holding that death penalty may not be imposed on a defendant who committed a capital
crime when under the age of eighteen). Challenges to the death penalty may also be
brought based on the arbitrariness of a capital punishment regime, Gregg v. Georgia, 428
U.S. 153, 189 (1976) (plurality opinion), or because the goals of capital punishment are
inconsistent with executing offenders who share particular characteristics, such as the mentally handicapped. Atkins v. Virginia, 536 U.S. 304, 321 (2002). These kinds of challenges
rely in many ways on the factors that inform proportionality analysis, but they are not
conceived of as challenges to the excessiveness of a particular sentence.
117 Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (finding that conditions are unconstitutional if they “deprive inmates of the minimal civilized measure of life’s necessities”).
118 See id. at 345–46; see also Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).
119 437 U.S. 678 (1978).

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finement in Arkansas prisons, including conditions in “the hole.”120 The
Court did not address the Eighth Amendment implications of the confinement, because the argument centered on the district court’s power to enter
the remedial order—there was offhand language in Justice Stevens’s opinion
clarifying that the length of time in solitary could play some role in assessing
the constitutionality of the treatment (“A filthy, overcrowded cell and a diet
of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or
months.”)121—but nothing more specific.
In every other case, however, we can only read the tea leaves. There is a
late nineteenth century case, In re Medley,122 which was not about the Eighth
Amendment at all, but in which the Court offered a scathing critique of the
“experiment” with solitary confinement described in Part I of this Article. In
that 1890 case, the Court considered an ex post facto challenge to an 1889
Colorado statute that required that death-sentenced prisoners be kept in solitary confinement until the time of execution.123 The 1883 version of the
statute made no reference to solitary confinement.124 The defendant had
committed his crime in 1889, prior to the effective date of the challenged
statute.125 In determining that the statute violated the Ex Post Facto Clause,
the Court made several notable observations.
First, the Court reviewed the history of the use of solitary confinement,
rejecting the argument that it was “a mere unimportant regulation as to the
safe-keeping of the prisoner” and confirming that it was a form of punishment.126 Second, experience with “complete isolation” in American prisoners had taught that
[a] considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to
arouse them, and others became violently insane, others, still, committed
suicide, while those who stood the ordeal better were not generally
reformed, and in most cases did not recover sufficient mental activity to be
of any subsequent service to the community.127

Third, by the mid-1800s, according to the Court the “main feature of
solitary confinement was found [by prison experts] to be too severe.”128 The
Court remarked on the fact that under English law solitary confinement had
initially been applied to those convicted of murder as a “further terror and
peculiar mark of infamy” in addition to the punishment of death.129 It was
120
121
122
123
124
125
126
127
128
129
Better

Id. at 681.
Id. at 686–87.
134 U.S. 160 (1890).
Id. at 161–62.
Id. at 167.
Id. at 162.
Id. at 167.
Id. at 168.
Id.
Id. at 170 (citing The Murder Act 1751, 25 Geo. 2. c. 37 (Eng.) (entitled ‘An Act For
Preventing the Horrid Crime of Murder’)).

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ultimately repealed because “public sentiment revolted against this severity.”130 With this understanding of solitary confinement, the Court’s Ex Post
Facto Clause holding was straightforward: because solitary confinement constituted “an additional punishment of the most important and painful character,” it could not be imposed retroactively on the defendant.131
In re Medley is indicative of the early twentieth century attitude toward
the use of solitary confinement as a punishment for crime. In 1916, the
Arkansas Supreme Court held that a punishment of “solitary confinement”
imposed for contempt was unconstitutional because it was “unusual” under
the Arkansas Constitution: “there is no such punishment known to our law as
‘solitary confinement.’ ”132 And the first case in which the Supreme Court
actually found that the Eighth Amendment imposed a substantive limitation
on the power to punish—Weems v. United States,133 a 1910 case—involved a
punishment that included solitary confinement.134 In Weems, the Court (for
the first time) struck down as excessive a sentence imposed by a court in the
Philippines for falsifying a public and official document.135 The trial court
had sentenced the defendant to fifteen years’ imprisonment, as well as to an
additional punishment known as cadena temporal.136 Individuals sentenced to
cadena temporal were required by statute to be housed in solitary confinement,
among other harsh conditions.137 Because the Court viewed the sentence as
excessive, especially compared to sentences for more serious crimes, it found
that the statute fixing the sentence reflected “more than different exercises
of legislative judgment” and instead imposed cruel and unusual punishment
under the meaning of the Eighth Amendment.138 The Court notably
130 Id.
131 Id. at 171. And perhaps most notably, the Court ordered the defendant be released
from custody as a result of its holding—the action was in the nature of habeas corpus, and
the statute that provided the punishment of solitary confinement had repealed the prior
statute providing for punishment of murder, leaving the state with no valid power to punish the defendant. Id. at 173–74.
132 Williams v. State, 188 S.W. 826, 827 (Ark. 1916) (“Misdemeanors are punishable in
this state by fine or imprisonment, or both, and any other character of punishment must
necessarily be regarded as unusual within the prohibition of the Constitution.”).
133 217 U.S. 349 (1910).
134 Id. at 366.
135 Id. at 363, 382. The Philippines constitution contained a cruel and unusual punishment clause identical to the Eighth Amendment, so the issue of incorporation of the
Eighth Amendment against the states did not arise.
136 Id. at 362–64. The phrase betrays the punishment’s Spanish origins, and literally
translated means “temporary chain.” See id. at 363.
137 See id. at 364–66. The additional punishment associated with cadena temporal
included “hard labor,” ankle and wrist restraints, deprivation of parental rights and the
right to dispose of property through a will, the obligation to give authorities notice of any
change in domicile, and disqualification to hold public office or vote. Id. at 364–65. As
the Supreme Court observed, the only punishments more severe than cadena temporal were
death or cadena perpetua. Id. at 363–64.
138 Id. at 380–81 (comparing punishment to punishment for crimes such as homicide,
conspiracy, and forgery).

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declined to consider the fixed imprisonment term of the sentence separately
from the conditions of confinement imposed by the cadena temporal sentence
because they had been imposed pursuant to statute and therefore had to be
considered jointly as punishment.139 For both Weems and In re Medley, then,
the use of solitary confinement was a powerful punishment, one not to be
taken lightly.
If we fast-forward to a more recent Supreme Court case—the Court’s
decision in Wilkinson v. Austin140—the Court’s narrative about solitary confinement has changed. This was another case in which the Eighth Amendment was not directly at issue (all Eighth Amendment claims had been
resolved in the lower court)—only procedural due process protections were
in play.141 But it is the Court’s description in that case of the lived experience of people confined in Ohio’s Supermax that is notable:
In OSP [the Ohio State Penitentiary] almost 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 in the cell at all
times, though it is sometimes dimmed, and an inmate who attempts to shield
the light to sleep is subject to further discipline. During the one hour per
day that an inmate may leave his cell, access is limited to one of two indoor
recreation cells.
Incarceration at OSP is synonymous with extreme isolation. In contrast
to any other Ohio prison, including any segregation unit, OSP 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 in the inmate’s cell instead of in a common eating area. Opportunities for visitation are rare and in all events are conducted through glass
walls. It is fair to say OSP inmates are deprived of almost any environmental
or sensory stimuli and of almost all human contact.142

The distance from the Court’s discussion of solitary in Medley to Wilkinson is hard to grapple with. All the more so because when one looks at the
doctrine on its face and as summarized above, the Eighth Amendment
appears to be a good candidate for limiting extreme isolation’s use. As noted
above, the Eighth Amendment prohibits punishments that are either disproportionate or contrary to evolving standards of decency. While proportionality doctrine is a weak constraint on the state’s exercise of its power to punish,
some courts have acknowledged that SHU sentences must not be “grossly
disproportionate,” must have some penological justification, and must not
“involve the unnecessary and wanton infliction of pain.”143 To the extent
139 See id. at 381.
140 545 U.S. 209 (2005).
141 Id. at 229 (noting that any possible Eighth Amendment claims were not before the
Court).
142 Id. at 214.
143 Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984) (quoting Rhodes v. Chapman,
452 U.S. 337, 346 (1980)) (internal quotation marks omitted); Dixon v. Goord, 224 F.
Supp. 2d 739, 748 (S.D.N.Y. 2002) (quoting Smith, 748 F.2d at 787) (internal quotation
marks omitted); see also Wright v. McMann, 460 F.2d 126, 133 (2d Cir. 1972).

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this doctrine has been of use, however, it has not been for wholesale challenges to the use of solitary, but instead to challenges to the reasons solitary is
used, or to the categories of people for whom it is used.144
The Eighth Amendment also prohibits the use of punishments that are
inconsistent with “the evolving standards of decency that mark the progress
of a maturing society.”145 If one were to ask what “evolving standards of
decency” taught us more than 100 years ago, it is questionable whether any
use of solitary for any prisoner would be considered to be consistent with the
Eighth Amendment. For although the use of solitary confinement is currently widespread throughout the United States and in many ways taken for
granted by state and federal corrections officials and prisoner advocates
alike, as Medley and the discussion in Part I suggest, it was not always this
way.146 Several states through the nineteenth century briefly flirted with the
use of extreme isolation only to abandon it after it proved too harmful to
prisoners, generating the Medley Court’s language about the failure of the
experiment with extreme isolation.147
Over time, a consensus emerged that the harms of extreme isolation far
outweighed any potential benefits of the practice. For much of the twentieth
century, this was reflected in prison practices, but in the mid-twentieth century, the experimentation began anew, supported by rhetoric about the need
to control the “worst of the worst” prisoners.148 Use of solitary escalated in
the 1980s and 1990s with the construction of freestanding supermax facilities
and other units designed with isolation in mind.149 In many of the new
units, the extent of dehumanization is comparable (or worse) than nineteenth century practices, as the Court’s description of the OSP conditions
confirms.
The limitations of the use of the Constitution to challenge either the
imposition of solitary confinement (from a due process perspective) or the
conditions of solitary (from an Eighth Amendment perspective) are evident
in recent caselaw. In the Fourth Circuit, for example, the court recently
rejected a due process challenge by a prisoner on Virginia’s death row, who
argued that he was placed in indefinite solitary confinement without any process whatsoever (Virginia has a formal written policy that requires all death
row prisoners to be held in their cells twenty-three hours a day, with no
group programming or religious services—the equivalent of solitary confine144 The Wilkinson Court had no reason to decide issues of proportionality of punishment because the plaintiffs’ Eighth Amendment claims had been settled. 545 U.S. at 229.
Nonetheless, the Court at least acknowledged the theoretical possibility that individual
claims of “excessive punishment” could be viable for people held in the supermax. Id.
145 Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
146 See In re Medley, 134 U.S. 160, 172 (1890).
147 See id. at 168 (“[S]ome thirty or forty years ago the whole subject [of solitary confinement] attracted the general public attention, and . . . solitary confinement was found
to be too severe.”).
148 Weidman, supra note 28, at 1506.
149 See Wilkinson, 545 U.S. at 213–14.

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ment).150 In Prieto v. Clarke, the majority held that to even implicate the Due
Process Clause, it was not enough that the conditions of confinement be
“atypical and significant,” but also that there be a state law or policy that
provides a liberty interest.151 Thus, given that Virginia has a written policy
requiring that death row prisoners be confined in isolation, the plaintiff
could not prevail under a due process theory.152 In the alternative, the court
held that the plaintiff could not show atypicality and significance because the
baseline was the “conditions dictated by a prisoner’s conviction and sentence”; here, those conditions were isolation.153 The dissent argued that the
majority had misconstrued Sandin and Wilkinson and that all that was
required to establish a liberty interest was to show that the imposed conditions were atypical and significant.154 Otherwise, the dissent argued, “prisoners have no interest in avoiding even extreme hardships so long as a state
simply removes all delineating prison regulations or expressly disclaims any
liberty expectation.”155 There was no discussion of Eighth Amendment
limitations.
When prisoners have challenged the conditions of solitary confinement
simpliciter as violating the Eighth Amendment’s requirement that prisoners
have access to life’s basic necessities, they have generally been unsuccessful.
Mostly this is because courts conceptualize life’s basic necessities in stark
material terms—i.e., food, shelter, and minimum access to hygiene.156 A
court considering a complaint alleging that a prison had denied access to
water for thirty days, for example, would have no difficulty concluding that
an Eighth Amendment claim was alleged; not so for a court considering a
complaint alleging that a prison had denied access to human contact for
thirty days. But if the plaintiff alleges facts beyond the basic conditions of
solitary confinement, a court might find enough to state an Eighth Amendment claim.
A recent example is a case from the Third Circuit, Allah v. Bartkowski.157
In Allah, the district court had dismissed the prisoner’s Eighth Amendment
claim, which contained allegations that “he was allowed a 10-minute shower
every day and a 90-minute yard period every second or third day,” but the
remaining time “was confined to a small cell in a cell block that held mentally
ill inmates who banged and kicked on the cell doors throughout the day,”
causing headaches and sleep deprivation.158 Additionally, the plaintiff
alleged that the other prisoners did not clean themselves, creating unsanitary
150 Prieto v. Clarke, 780 F.3d 245, 247 (4th Cir. 2015).
151 Id. at 250–51.
152 See id. at 252 (“That is, a court cannot conclude that death row inmates have a statecreated interest in consideration for non-solitary confinement when the State’s established
written policy expressly precludes such consideration.”).
153 Id. at 252–53.
154 Id. at 255 (Wynn, J., dissenting).
155 Id. at 257 (Wynn, J., dissenting).
156 See Reinert, supra note 16, at 1598.
157 574 F. App’x 135 (3d Cir. 2014) (per curiam).
158 Id. at 138–39.

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conditions in which the cell block “smelled of urine and excrement, and was
infested with pests.”159 The court of appeals found that the unsanitary conditions served “no ‘legitimate penological objectiv[e]’ ” and that the allegations
of sleep deprivation were sufficient to state an Eighth Amendment claim.160
In the Tenth Circuit, by contrast, the court of appeals recently rejected a
challenge brought by a prisoner who had served thirty years in solitary confinement in federal custody.161 The court held that the plaintiff had not
established any serious deprivation by virtue of being confined to solitary for
such a long period of time, noting that even if a lack of social contact could
give rise to an Eighth Amendment violation, the plaintiff had not shown a
sufficiently serious deprivation of human contact.162
To be clear, the consequences of being denied access to water for thirty
days are more serious than being denied access to human contact. The point
is not that they are the same, but that, although both involve deprivations of
a basic human need, courts have usually found it difficult to conceptualize
them both as such. There are recent cases that suggest that this conceptual
resistance is breaking down. But those examples are confined to extreme
cases involving decades of solitary confinement.163
In sum, although the Eighth Amendment appears capacious enough to
regulate the use of extreme isolation in our prisons and jails, it has not
played such a role to date, except in a few cases in which prisoners have
experienced decades of isolation. In the next Part, I explore different avenues that might change this trajectory.
III.

A WAY FORWARD

FOR

JUDICIAL REGULATION

OF

SOLITARY CONFINEMENT

As the discussion to this point has established, solitary confinement is
ubiquitous as a mode of prison discipline in the United States. Moreover,
the Constitution has played almost no role in substantively limiting its use.
Yet there is an increasing chorus of voices calling for greater regulation, both
159 Id. at 138.
160 Id. at 139 (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)); see also Parsons v.
Ryan, No. CV-12-00601, 2014 WL 3887867, at *6 (D. Ariz. Aug. 7, 2014) (denying summary
judgment regarding conditions of confinement in isolation units).
161 See Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739, 755–56 (10th Cir. 2014).
162 Id. at 755–56.
163 See, e.g., Fussell v. Vannoy, 584 F. App’x 270, 271 (5th Cir. 2014) (per curiam) (holding that decades in lockdown could constitute deprivation of serious human need); Johnson v. Wetzel, 209 F. Supp. 3d 766, 777 (M.D. Pa. 2016) (discussing cases and finding that
plaintiff was likely to succeed in claim that thirty-six years in solitary confinement resulted
in deprivation of basic human needs); Shoatz v. Wetzel, No. 2:13-cv-0657, 2016 WL
595337, at *8 (W.D. Pa. Feb. 12, 2016) (denying summary judgment because a reasonable
fact finder could find that the “cumulative effect” of more than twenty years in consecutive
solitary confinement obviously results in serious deprivation of sleep, exercise, social contact, or environmental stimulation); Ashker v. Brown, No. C 09-5796, 2013 WL 1435148, at
*5 (N.D. Cal. Apr. 9, 2013) (finding Eighth Amendment allegations sufficient where plaintiffs alleged harms caused by at least eleven years of “prolonged social isolation and lack of
environmental stimuli”)

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within and without the judiciary. In this Part, I seek to show how an argument could be structured, without substantial extension of Eighth Amendment doctrine, to invigorate judicial regulation of solitary confinement.
A.

The Relevance of Sentencing Jurisprudence to Solitary Confinement Challenges

As described above, challenges to sentences that involve terms of years
face steep hurdles. But courts have been more open to some challenges to
sentences that involve particular modes of punishment. In cases involving
capital sentences or life without parole, for example, the Court has more
recently applied an “evolving standards of decency” standard to questions of
proportionality of punishment.164 This often requires the court to determine whether there is a “consensus” among States regarding the permissibility of certain punishment.165 The Supreme Court’s post-2000 Eighth
Amendment cases are particularly instructive, because the Court’s definition
of “consensus” is quite flexible. For instance, in Atkins v. Virginia, the Court
found that a consensus against executing the mentally handicapped had
evolved between 1989, when two states specifically prohibited such executions, and 2002, when eighteen states had enacted similar prohibitions.166 In
Roper v. Simmons, the Court found a consensus against execution of juveniles
had been established between 1989, when twenty-five states permitted the
execution of juveniles, and 2005, when twenty states did.167 As the Court
recognized in Roper, the pace of change with respect to juveniles was less
dramatic than that in Atkins but still “significant.”168
In Kennedy v. Louisiana, the Court found evidence of a consensus against
executions for child rape even though the momentum of change was swinging in the opposite direction: six states had introduced the death penalty as a
punishment for child rape since 1995.169 And perhaps most importantly, in
Graham v. Florida the Court found evidence of a consensus against LWOP for
juveniles convicted of nonhomicide crimes despite the fact that six jurisdictions did not allow LWOP for any juvenile offender, seven permitted it only
for homicides, and thirty-seven states permitted it for some nonhomicide
offenses.170 In large part, the Court rested its conclusion in Graham on the
relative infrequency of LWOP sentences for juveniles even in those states that
formally permitted such a sentence.171 Finally, in Miller v. Alabama, the
Court found mandatory LWOP for juveniles unconstitutional on procedural
grounds, despite the absence of a consensus against the punishment.172
Table 1 summarizes these recent Supreme Court decisions in which an
164
165
166
167
168
169
170
171
172

See, e.g., Reinert, Reconceptualizing the Eighth Amendment, supra note 27, at 827.
See Lee, The Constitutional Right Against Excessive Punishment, supra note 82, at 689.
Atkins v. Virginia, 536 U.S. 304, 314–15 (2002).
Roper v. Simmons, 543 U.S. 551, 564–65 (2005).
Id. at 565.
Kennedy v. Louisiana, 554 U.S. 407, 423 (2008).
Graham v. Florida, 560 U.S. 48, 62 (2010).
Id. at 63–67.
Miller v. Alabama, 567 U.S. 460, 482, 489 (2012).

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Eighth Amendment challenge was brought to a particular mode of punishment (rather than to a sentence of a term of years) according to evidence of
“consensus” found by the Court.
TABLE 1.

SUPREME COURT’S RECENT EIGHTH AMENDMENT
PROPORTIONALITY DECISIONS

Case (Year)

Punishment Subject to
Challenge

Practice in States
Indicating Consensus

Other Indicia of
Consensus

Atkins (2002)173

• Death penalty for
mentally handicapped
individuals

• Prohibited in 18
states (plus 12 states in
which there is no DP)
• Permitted in 20
States

• Lack of connection
to deterrence and
retribution
• Pace of change in
rate of rejection

Roper (2005)174

• Death penalty for
people who commit
crime when younger
than 18

• Prohibited in 18
states (plus 12 states in
which there is no DP)
• Permitted in 20
States

• Lack of connection
to deterrence and
retribution
• International opinion

Kennedy (2008)175 • Death penalty for
people who commit
child rape

• Prohibited in 44
states (plus federal)
• Permitted in 6 states

• No consistent
direction of change
• Rarity of sentence for
the offense
• Court’s own moral
judgment

Graham (2010)176 • LWOP for juveniles
convicted of
nonhomicide crimes

• Prohibited in 13
jurisdictions (6 which
did not allow LWOP
for any juvenile
offender, 7 which
permitted it only for
homicides)
• Permitted for some
nonhomicide offenses
in 37 jurisdictions

• Rarity of sentence
• Inadequacy of
penological theory to
justify sentence for
juveniles
• International practice
and opinion

Miller (2012)177

• Permitted in 29
jurisdictions
• Prohibited in 22
jurisdictions

• Rarity of penalty
• Inadequacy of
penological theory to
justify sentence for
juveniles

• LWOP for juveniles
convicted of homicide
crimes

Solitary confinement can properly be considered a “mode” of punishment distinct from sentences to a term of years in prison. And if one applied
the Supreme Court’s approach to “consensus” in the context of the use of
solitary confinement, an argument emerges that there is clearly a consensus
against the use of solitary confinement as punishment for crimes. Currently,
only four states specifically authorize solitary confinement as a mode of pun173 Atkins v. Virginia, 536 U.S. 304, 306, 314–15, 319 (2002).
174 Roper v. Simmons, 543 U.S. 551, 555–56, 564, 572, 575 (2005).
175 Kennedy v. Louisiana, 554 U.S. 407, 412, 423, 426, 431, 433, 435 (2008).
176 Graham, 560 U.S. at 52–53, 62, 71, 80.
177 Miller, 567 U.S. at 465, 472, 482.

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ishment for violations of the criminal law.178 Delaware permits a court to
specify that a sentence include solitary confinement, but not for a period of
time exceeding three months.179 Washington permits a sentencing court to
impose up to twenty days of solitary confinement as part of a criminal sentence.180 South Carolina generally permits courts to impose a punishment
of solitary confinement for felonies in limited circumstances.181 Pennsylvania is unusual in including solitary confinement as a potential punishment for specific offenses without apparent limitation on time frame.182 In
addition to these states, Idaho, Pennsylvania, and Wyoming call for the use of
solitary confinement for death row prisoners who are under death warrant,
where execution has not been stayed.183 Otherwise, however, solitary confinement is not available as a means of punishment for violations of criminal
law in the vast majority of states;184 as a consequence of the failed experiment with solitary confinement in the 1800s, states nearly unanimously
moved away from permitting that criminal sentences be executed through
the use of solitary confinement. Thus, were one asking the question from
the Eighth Amendment perspective of “evolving standards of decency,” it is
fair to say that there is a long-established consensus among the states that
solitary confinement is inappropriate as a means of criminal punishment.
178 See, e.g., State v. McHenry, 525 N.W.2d 620, 627 (Neb. 1995) (holding that sentence
of four days per year in solitary confinement was unauthorized by law); State v. Snitzky,
Nos. 74706, 74811, 1998 WL 827611, at *2 (Ohio Ct. App. Nov. 25, 1998) (“The punishment allowed by law in the case of a conviction for murder does not provide for any period
of solitary confinement, therefore, the solitary confinement sentence was contrary to
law.”).
179 DEL. CODE ANN. tit. 11, § 3902 (2017).
180 WASH. REV. CODE ANN. § 10.64.060 (West 2017).
181 See S.C. CODE ANN. § 17-25-20 (2017).
182 18 PA. STAT. AND CONS. STAT. ANN. § 4904 (West 2017) (possession of burglary tools
punishable by up to three years imprisonment or “separate or solitary confinement”); 25
PA. STAT. AND CONS. STAT. ANN. § 2096 (West 2017) (same for neglect of duty in care of
ballot boxes); Commonwealth ex rel. Scasserra v. Keenan, 106 A.2d 842, 843 (Pa. Super. Ct.
1954) (conspiracy to cheat and defraud).
183 IDAHO CODE ANN. § 19-2705(3) (West 2017); 61 PA. STAT. AND CONS. STAT. ANN.
§ 4303 (West 2017); WYO. STAT. ANN. § 7-13-907 (2017) (solitary confinement for deathsentenced prisoners). In Idaho, where the prisoner’s death warrant has been stayed, the
warden is not required to impose solitary confinement, but may “house such person under
conditions more restrictive [than maximum security confinement] if necessary to ensure
public safety or the safe, secure and orderly operation of the facility.” IDAHO CODE ANN.
§ 19-2705(11). South Dakota has amended its death penalty procedure to do away with
the imposition of solitary confinement prior to execution. S.D. CODIFIED LAWS § 23A-27A16 (2017).
184 See, e.g., Fludd v. Goldberg, 854 N.Y.S.2d 362, 367 (App. Div. 2008) (holding that
sentencing judge lacked authority to specify that sentence be served in solitary confinement). Indeed, as recently as 2015, Michigan repealed a provision of its penal code that
permitted a sentencing court to specify that a prisoner be kept in solitary confinement. See
2015 Mich. Pub. Acts 25, No. 216 § 1(a) (repealing MICH. COMP. LAWS ANN. § 769.2 (West
2015)) (effective Mar. 14, 2016).

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The question this raises is what a consensus against solitary confinement
as punishment for violations of the criminal law means when solitary confinement is used as prison discipline. As compared with penal statutes, there is
far greater variation in legislation related to the use of solitary confinement
as a means of prison discipline. The vast majority of states make no specific
reference to solitary confinement as a mode of discipline for convicted prisoners. Arkansas is one example, providing general authority to prison officials to “prescribe, with the approval of the Board of Corrections, rules and
regulations for the maintenance of good order and discipline in the facilities
and institutions of the Department of Correction or the Department of Community Correction, respectively, including proceedings for dealing with violations.”185 The Arkansas Board of Corrections, however, has authorized the
use of punitive segregation as a disciplinary measure, but has not appeared to
limit its use in any significant respect.186 It is difficult to determine with certainty how many other states have authorized the use of solitary confinement
via a similar administrative procedure. Delaware, for instance, makes no statutory reference to the use of solitary confinement.187
Despite the absence of explicit statutory authorization, state courts
appear to assume that prison officials have the authority to impose solitary
confinement as discipline. For instance, as early as 1923, Iowa courts recognized the power of a warden to enforce discipline by imposing solitary confinement, despite the absence of specific language authorizing such
punishment.188 Even now, no statutory reference to solitary confinement is
made in Iowa law with respect to prison discipline.189 Similarly, Illinois currently does not appear to place any statutory limit on the power of corrections officials to impose solitary confinement as a disciplinary measure.190
A minority of states explicitly address solitary confinement by statute.
Two states—Louisiana and Wisconsin—explicitly permit the use of solitary
confinement as prison discipline, without limiting the length of confine185 ARK. CODE ANN. § 12-29-103(a) (2017).
186 004-00-2 ARK. CODE R. § 839 (Lexis 2017).
187 DEL. CODE ANN. tit. 11, § 6535 (2017) (giving Department power to “promulgate
rules and regulations for the maintenance of good order and discipline in the facilities and
institutions of the Department, including procedures for dealing with violations”).
188 State v. Cahill, 194 N.W. 191, 194 (Iowa 1923).
189 See IOWA CODE ANN. § 904.505 (West 2017).
190 See 730 ILL. COMP. STAT. ANN. 5/3-8-7 (West 2017). Prior versions of this statute
provided:
No person in the Adult Division may be placed in solitary confinement for disciplinary reasons for more than 15 consecutive days or more than 30 days out of
any 45 day period except in cases of violence or attempted violence committed
against another person or property when an additional period of isolation for
disciplinary reasons is approved by the chief administrative officer.
1996 Ill. Legis. Serv. 89-688 (West) (amending Section 3-8-7(b)(3)). Currently the only
limitation prohibits the use of corporal punishment or “disciplinary restrictions on diet,
medical or sanitary facilities, [and] mail or access to legal materials.” 730 ILL. COMP. STAT.
ANN. 5/3-8-7(b)(1).

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ment.191 Three states—Massachusetts, South Dakota, and Tennessee—permit the use of solitary but impose time limits ranging up to thirty days per
offense.192 Maine recently radically revised its solitary confinement policy.
Maine now requires that all sentences of segregation be approved by the
chief administrative officers of the prison and that medical staff shall visit
every twenty-four hours any prisoner sentenced to more than a day in segregation.193 Any sentence exceeding five days will result in the commissioner
of corrections receiving notice and the reasons for the confinement.194 Even
more restrictive than Maine, Nebraska specifically provides that “[n]o person
shall be placed in solitary confinement.”195 Similarly, in 2014 South Dakota
repealed its law that had permitted, to a limited degree, the use of solitary
confinement as discipline in prisons.196 And in Colorado, the executive
director of the state’s prison system has announced an end to solitary confinement that extends beyond fifteen consecutive days.197
Relatedly, some states have explicitly limited the use of solitary confinement as discipline for prisoners and other detainees held in county jails.
Currently, Iowa, Michigan, Minnesota, and Wisconsin limit the use of solitary

191 Louisiana, for instance, has abolished the use of solitary confinement as criminal
punishment but explicitly authorizes it for “enforcing obedience to the police regulations
of the penitentiary.” LA. STAT. ANN. § 15:865 (2017). Wisconsin also permits the use of
solitary confinement for violation of prison rules, but specifies that the prisoner be “under
the care and advice of [a] physician.” WIS. STAT. ANN. § 302.10 (West 2017).
192 In Massachusetts, solitary may be imposed for no more than fifteen days per offense.
MASS. GEN. LAWS ANN. ch. 127, § 40 (West 2017). Moreover, the fifteen-day limit is
assumed to apply to multiple violations arising out of a single course of conduct. Buchannan v. Superintendent of Mass. Corr. Inst., 402 N.E.2d 1082, 1083 (Mass. App. Ct. 1980)
(“Were the correction institutions of the Commonwealth to tack the redundant charges of
conduct which disrupts or interferes with the institution and violation of the rules of the
institution to any of a variety of infractions of the Code of Offenses . . . the policy of sparing
use of isolation enunciated in § 40 would be much eroded. Such a practice would have a
fault analogous to the imposition of cumulative sentences for conviction of multiple
offenses where the lesser offense arises out of facts identical with those which supported
conviction of the greater offense.” (footnote omitted)). South Dakota once limited the use
of solitary confinement as discipline, prohibiting prisons from imposing solitary confinement for refusal to labor to no more than ten days for any one offense, and no more than
ninety days in all. S.D. CODIFIED LAWS § 24-11-34 (2014). It is not clear that there is any
limitation on its use for other disciplinary reasons. Tennessee permits its county “workhouses” and municipal correctional institutions to use solitary confinement as discipline
without any specific limitation. TENN. CODE ANN. § 41-2-120(a) (2017); id. § 41-3-102(a).
By contrast, prisoners may be punished by solitary confinement for no more than thirty
days per offense. Id. § 41-21-402(a).
193 See ME. REV. STAT. ANN. tit. 34-A, § 3032(3) (2017).
194 See id. § 3032(3)(E).
195 NEB. REV. STAT. ANN. § 83-4,114(3) (West 2017).
196 2014 S.D. Sess. Laws ch. 118 (repealing S.D. Codified Laws § 24-11-34).
197 See Raemisch, supra note 13.

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confinement in jails to ten days for any one offense.198 By contrast, New
Jersey authorizes county jails to impose solitary confinement as discipline,
without any explicit limitation on duration.199
One can imagine multiple ways in which the general practice in the
states could be of relevance to Eighth Amendment arguments to regulate the
use of extreme isolation. At its most extreme, one could argue that solitary
confinement is simply inconsistent with evolving standards of decency. After
all, if legislatures have abandoned use of solitary confinement as punishment
for criminal violations because of the severity of the punishment, one could
argue that prison officials are even less empowered to use solitary confinement as punishment. This argument can only go so far, however, given that
the use of solitary has been implicitly if not explicitly tolerated as a necessary
ingredient to prison discipline.200
One could still argue in favor of a proportionality principle, based on
the practice in the states, without going so far as to advocate for the abolition
of solitary confinement. As detailed above, to the extent that states have
explicitly addressed solitary confinement as a disciplinary measure in prisons
and jails, most states have imposed time limits that are in the nature of days
and weeks rather than months and years. Five states limit the use of solitary
confinement as discipline in prisons to sentences ranging from five days to
thirty days, with an additional four states limiting the use of solitary confinement in jails to no more than ten days. By contrast, two states appear to
permit prisoners to be sentenced to solitary for any length of time whatsoever. The direction of change, as in Atkins and Roper,201 is towards greater
limits on the use of solitary for discipline. One could argue that this reflects
a trend toward a bounded proportionality principle that limits the use of
solitary confinement to sentences that last no more than thirty days. The end
point would be a limitation on the use of solitary confinement for more than
a certain period of time, rather than an absolute ban on the imposition of
extreme isolation. Such an approach is buttressed when one looks to international human rights norms, as the Court has in other sentencing contexts.
B.

The Role of International Law in Eighth Amendment Regulation of Solitary
Confinement

As the Supreme Court’s cases on sentencing proportionality illustrate,
international opinion also plays a role in the evaluation of particular modes
of punishment.202 Indeed, international and foreign law has always been rel198 IOWA CODE ANN. § 356.14 (West 2017); MICH. COMP. LAWS ANN. § 801.25 (West
2017); MINN. STAT. ANN. § 641.09 (West 2017) (no more than ninety days total); WIS. STAT.
ANN. § 302.40 (West 2017).
199 See N.J. STAT. ANN. § 30:8-23 (West 2017).
200 See, e.g., Wilkinson v. Austin, 545 U.S. 209, 229 (2005) (“Prolonged confinement in
Supermax may be the State’s only option for the control of some inmates . . . .”).
201 Roper v. Simmons, 543 U.S. 551, 564–65 (2005); Atkins v. Virginia, 536 U.S. 304,
314–15 (2002).
202 See, e.g., Graham v. Florida, 560 U.S. 48, 80 (2010); Roper, 543 U.S. at 575–78.

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evant in Eighth Amendment jurisprudence, dating back to the nineteenth
century.203 A consideration of both foreign law and international norms in
the context of solitary confinement suggests that the use of extreme isolation
for more than fifteen continuous days is inconsistent with domestic law in
other countries and numerous human rights instruments.
The use of solitary confinement as part of a prison sentence had largely
been abandoned worldwide by the turn of the twentieth century, principally
because of observations regarding the psychological effects of solitary confinement.204 There were exceptions, including among countries that are
associated with progressive prison policies. Sweden, Belgium, Holland, Denmark, and Norway used solitary confinement for sentenced prisoners until
the mid-twentieth century.205 In the United Kingdom, the use of solitary
confinement as part of a prisoners’ sentence gradually declined from eighteen months in 1842 to nine months in 1921; by 1939 “this use of isolation
was entirely abandoned in England.”206 In the 1960s, Great Britain reintroduced solitary confinement, but reforms have dramatically reduced its use.207
Solitary confinement has not abated entirely and its use as a disciplinary
measure has yet to be abolished in any country. Over time, international and
regional bodies charged with enforcing multinational human rights norms
have developed standards for reviewing the use of solitary confinement as
criminal punishment and as prison discipline. For the most part, the cases
have emerged from complaints by prisoners and detainees that isolation constitutes cruel, inhuman, or degrading treatment, a prohibition common to
multinational human rights agreements.208 Courts and other enforcement
203 See Trop v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion). See generally Gordon
A. Christenson, Using Human Rights Law to Inform Due Process and Equal Protection Analyses,
52 U. CIN. L. REV. 3 (1983); Youngjae Lee, International Consensus as Persuasive Authority in
the Eighth Amendment, 156 U. PA. L. REV. 63 (2007).
204 See Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief
History and Review of the Literature, 34 CRIME & JUST. 441, 465–69 (2006) (describing experience in the United States, France, and Germany and concluding that, with the exception
of Holland, Belgium, Sweden, Norway, and Denmark “[f]rom the 1860s onward, the use of
solitary confinement declined gradually in the Western world”).
205 See id. at 467–68.
206 Id. at 468–69.
207 See Knowles, supra note 29, at 895–96 & n.17 (reporting that approximately 500
people are confined in isolation for periods of time that usually do not exceed twenty-one
days)
208 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, G.A. Res. 217 (III)
A, U.N. Doc. A/RES/217(III), at art. 5 (Dec. 10, 1948); Inter-American Convention to
Prevent and Punish Torture art. 7, Dec. 9, 1985, O.A.S.T.S. No. 67; Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 16, Dec.
10, 1984, 1465 U.N.T.S. 85; African Charter on Human and Peoples’ Rights art. 5, June 27,
1981, 1520 U.N.T.S. 217; American Convention on Human Rights art. 5, Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; International Covenant on Civil and Political Rights
art. 7, Dec. 19, 1966, 999 U.N.T.S. 171; Convention for the Protection of Human Rights
and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221; see also American Declaration of the Rights and Duties of Man arts. XXV, XXVI, Apr. 30, 1948, O.A.S. Res. XXX

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bodies vary in their interpretations of the prohibition on cruel, inhuman,
and degrading treatment, but as a general matter most international and
regional bodies have evaluated both the psychological and physical effects of
a particular treatment to determine whether it is prohibited.209
When hearing challenges or complaints based on the use of solitary confinement, courts and other enforcement bodies have focused on the duration of the confinement, particulars such as lighting, cell size, and
opportunity for recreation, and the procedural protections afforded to prisoners or detainees. None of the international bodies that have reviewed
complaints about solitary have adopted bright line rules, but as explored in
greater detail below, many have stated a goal of abolishing solitary and ensuring that its use will be limited and proportional while at the same time
affirming its use in some specific circumstances even for prolonged periods
of time.
1.

Review of Solitary Confinement in the United Nations

The United Nations’ Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment has stated that “prolonged
isolation of detainees may amount to cruel, inhuman or degrading treatment
or punishment and, in certain instances, may amount to torture.”210 In
August 2011, the U.N. Special Rapporteur defined prolonged solitary confinement as “any period of solitary confinement in excess of 15 days,”
because “according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible” at that point.211 The Special Rapporteur concluded that the use of solitary confinement constitutes
(requiring “humane treatment” of prisoners and prohibiting “cruel, infamous or unusual
punishment”). It is worth noting that the United States has routinely attached a reservation upon ratification of these agreements stating that “cruel, inhuman or degrading”
treatment is no broader than that treatment proscribed by the Fifth, Eighth, and Fourteenth Amendments. See Nan D. Miller, Comment, International Protection of the Rights of
Prisoners: Is Solitary Confinement in the United States a Violation of International Standards?, 26
CAL. W. INT’L. L.J. 139, 143–47 (1995) (describing reservations made by United States
when it ratified the ICCPR and CAT). Note, however, that the United States’ reservations
cannot defeat the object and purpose of the treaties that the United States has ratified. See
Vienna Convention on the Law of Treaties art. 19, May 23, 1969, 1155 U.N.T.S. 331. The
United States has not ratified the American Convention on Human Rights or the InterAmerican Convention to Prevent and Punish Torture.
209 For a discussion of the development of the “totality of the circumstances” test in the
European Court of Human Rights, see Renee E. Boxman, Comment, The Road to Soering
and Beyond: Will the United States Recognize the “Death Row Phenomenon?”, 14 HOUS. J. INT’L L.
151, 153–64 (1991). The United Nations’ Human Rights Committee, charged with evaluating complaints brought under the ICCPR, has adopted a similar approach. See Miller,
supra note 208, at 152–54.
210 Manfred Nowak (Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment), ¶ 77, U.N. Doc. A/63/175 (July 28, 2008).
211 Juan E. Méndez, (Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment), ¶¶ 26, 79, U.N. Doc. A/66/268 (Aug. 5, 2011).

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torture and other cruel, inhuman, or degrading treatment, depending on
the circumstances. He drew attention to several situations that are especially
problematic as a matter of international law: (1) punitive solitary confinement, whether as criminal punishment or for breaches of prison rules;212 (2)
pretrial solitary confinement as an intentional technique to aid interrogation
or confessions;213 and (3) indefinite solitary confinement.214 The Special
Rapporteur also concluded that the use of solitary confinement for juveniles
and persons with mental disabilities, for any duration, is cruel, inhuman, or
degrading treatment.215 He further explained that one of the principles that
must guide a prison regime is that period of confinement “must be proportional to the severity of the criminal or disciplinary infraction for which solitary confinement is imposed.”216
In addition, the Special Rapporteur has concluded that “the use of solitary confinement should be kept to a minimum, used in very exceptional
cases, for as short a time as possible, and only as a last resort.”217 The Special
Rapporteur also has endorsed the conclusions of the Istanbul Statement on
the Use and Effects of Solitary Confinement.218 The Istanbul Statement,
adopted in 2007, concluded that “[a]s a general principle solitary confinement should only be used in very exceptional cases, for as short a time as
possible and only as a last resort.”219
Bodies of the United Nations have also reviewed specific allegations of
cruel and inhuman treatment related to solitary confinement. In 1997, for
instance, the U.N.’s Human Rights Committee reviewed a complaint that
raised issues related to the limits of solitary confinement.220 The prisoner,
the leader of the “Revolutionary Movement Tupac Amaru,” was held for nine
months in isolation for twenty-three and a half hours a day, in a cell measuring six by six feet, without electricity or water and in subfreezing temperatures (conditions that generally are more extreme than those found in the
212 Id. ¶ 72.
213 Id. ¶ 73.
214 Id. ¶ 75.
215 See id. ¶¶ 77–78.
216 Id. ¶ 90.
217 Nowak, supra note 210, ¶ 83; see also Méndez, supra note 211, ¶ 89 (“[S]olitary
confinement should be used only in very exceptional circumstances, as a last resort, for as
short a time as possible. He emphasizes that when solitary confinement is used in exceptional circumstances, minimum procedural safeguards must be followed.”).
218 Nowak, supra note 210, ¶ 85 (“The Special Rapporteur draws the attention of the
General Assembly to the Istanbul Statement . . . and strongly encourages States to reflect
upon the Statement as a useful tool in efforts to promote the respect and protection of the
rights of detainees.” (citation omitted)).
219 See id., Annex, The Istanbul Statement on the Use and Effects of Solitary Confinement, at 25.
220 See Human Rights Committee, Polay Campos v. Peru, Commc’n No. 577/1994,
¶ 2.1, U.N. Doc. CCPR/C/61/D/577/1994 (Jan. 9, 1998), https://web.archive.org/web/
20110408121932/http://www.humanrights.is/the-human-rights-project/humanrightscases
andmaterials/cases/internationalcases/humanrightscommittee/nr/328.

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United States).221 The Committee determined that “these conditions
amounted to a violation of article 10, paragraph 1, of the [ICCPR].”222 The
Human Rights Committee also found a similar violation for detention under
“inhuman prison conditions,” which included the arbitrary use of solitary
confinement for up to thirty days.223
The United Nations Committee Against Torture (CAT) has also
expressed concern regarding long-term solitary confinement.224 In 1997,
the CAT recommended that solitary confinement be abolished “other than
in exceptional cases.”225 The CAT has worked closely with numerous countries to create less objectionable systems of solitary confinement. By 2000, it
noted that Denmark had proposed rules limiting the use of solitary confinement that were stricter than the Committee’s own proposals.226 In the same
year, the CAT noted that Luxembourg committed to taking action “to ensure
that the period of solitary confinement for disciplinary reasons does not
exceed one month.”227 Reviewing the use of solitary confinement in Norway,
the CAT emphasized that “solitary confinement and other restrictive mea221 Id.
222 Id. ¶ 8.4.
223 Human Rights Committee, Estrella v. Uruguay, Commc’n No. 74/1980, U.N.
GAOR, 18th Sess., ¶¶ 8.5, 10, U.N. Doc. Supp. No. (Mar. 29, 1983), http://
www1.umn.edu/humanrts/undocs/session38/74-1980.htm.
224 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Switzerland, ¶ 133, U.N. Doc. CAT/A/49/44 (Apr.
20, 1994), http://www1.umn.edu/humanrts/cat/catSwitzerland94.htm.
225 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Sweden, ¶ 225, U.N. Doc. CAT/A/52/44 (Sept. 10,
1997), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N97/235/57/IMG/N9723557
.pdf?OpenElement.
226 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Denmark, ¶ 119, U.N. Doc. CAT/C/55/Add.2 (Aug.
4, 2000), http://www1.umn.edu/humanrts/cat/denmark2000.html. Denmark imposed
the following time limits on the use of solitary confinement: where offenses entail imprisonment for less than four years, no more than four weeks of solitary may be imposed; for
offenses that involve imprisonment between four and six years, no more than eight weeks
of solitary may be imposed; for a sentence of six years or more, up to three months’ solitary
confinement may be imposed. Id. ¶ 120 (“This limit may only be exceeded in rare, exceptional cases if the court finds that essential considerations of clearing-up of the case render
continued solitary confinement necessary despite the time in which the detainee has been
held in solitary confinement until then.”). Moreover, Denmark provided compensation
for pretrial detainees held in solitary: for every three days of solitary, a detainee will have
his sentence reduced by one day. Id. ¶ 122.
227 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Luxembourg, ¶ 96, U.N. Doc. CAT/C/34/Add.14
(Oct. 30, 2000), http://www1.umn.edu/humanrts/cat/luxembourg2001.html. In 2002,
the CAT still expressed concern about the use of solitary confinement in Luxembourg,
most notably that the punishment “is applied only in severe circumstances, with a view to
its abolition, particularly during pre-trial detention.” U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Luxembourg, ¶ 6(b), U.N. Doc. CAT/C/CR/28/2 (June 12, 2002).

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sures may only be used when they are not considered to be disproportionate.”228 The CAT has even taken a position on the use of isolation in
“supermaximum” prisons in the United States, finding that the “extremely
harsh regime” could “constitute cruel, inhuman or degrading treatment or
punishment.”229
2.

Solitary Confinement in the European Court of Human Rights

The European Court of Human Rights (ECHR), charged with passing
judgment regarding alleged violations of the European Convention on
Human Rights, has acknowledged that “complete sensory isolation, coupled
with total social isolation can destroy the personality and constitutes a form
of inhuman treatment which cannot be justified by the requirements of
security or any other reason.”230 The ECHR’s application of this standard
would appear, however, to contemplate extensive use of solitary confinement
so long as it did not amount to total social isolation.231 In one complaint
brought against France, for example, the prisoner had been held in isolation
for just over eight years.232 He was permitted to leave his cell for two hours
each day to walk “in a triangular area that was 15 [meters] long and 7.5
[meters] wide at the base, receding to 1 [meter] at the vertex.”233 The court
did not find a violation of Article 3 of the European Convention on Human
Rights, noting that Mr. Ramirez Sanchez had not been held in “complete
sensory isolation or total social isolation.”234
The Court contrasted the conditions faced by Mr. Ramirez Sanchez with
other conditions in which a violation of Article 3 had been found. In Messina
v. Italy (No. 2)235 and Argenti v. Italy,236 the applicants had been in solitary
confinement for four and a half years and twelve years respectively, could not
228 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Norway, ¶ 81, U.N. Doc. CAT/C/55/Add.4 (Sept. 15,
2000), http://www1.umn.edu/humanrts/cat/norway2000.html. The CAT expressed this
concern even though more than half of prisoners were subjected to these restrictions for
fewer than fifteen days and ninety-seven percent were subject to the restrictions for fewer
than ninety days. Id. ¶ 91.
229 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: United States of America, ¶ 36, U.N. Doc. CAT/C/
USA/CO/2, (May 18, 2006), https://www.state.gov/documents/organization/133838.pdf.
230 Ramirez Sanchez v. France, 2006-IX Eur. Ct. H.R. 171, 218.
231 Öcalan v. Turkey, 2005-IV Eur. Ct. H.R. 191 (“[T]he prohibition of contact with
other prisoners for security, disciplinary or protective reasons does not in itself amount to
inhuman treatment or punishment.”). It should be noted that conditions in the United
States do not usually amount to total social isolation—those held in solitary will usually be
able to receive visitors, even if they are prohibited from having contact with them.
232 Ramirez Sanchez, 2006-IX Eur. Ct. H.R. at 179.
233 Id.
234 Id. at 221.
235 2000-X Eur. Ct. H.R. 57.
236 HUDOC ¶ 18 (Nov. 10, 2005), https://hudoc.echr.coe.int/eng#{“itemid”:[“00170979”]}.

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communicate with third parties, received visits behind a glass screen (with a
maximum of a single one-hour visit a month), and could not spend more
than two hours outdoors. And in Mathew v. The Netherlands,237 the applicant
“had been detained in conditions similar to solitary confinement for more
than two years in a cell on the last (second) floor of the prison,” where a hole
in the ceiling permitted rain to enter and where the applicant was “frequently prevented from going to the exercise yard or even outside.”238 The
court found Ramirez Sanchez’s conditions “closer to those it examined” in
connection with the application in Rohde v. Denmark,239 in which there was
no violation of Article 3 where the prisoner was held in solitary confinement
for almost a year, with access to television and newspapers, language lessons,
and weekly visits from attorneys and members of his family.240 The court
ultimately concluded that there was no violation of Article 3, “having regard
to the physical conditions of the applicant’s detention, the fact that his isolation is ‘relative,’ the authorities’ willingness to hold him under the ordinary
regime, his character and the danger he poses.”241
Nonetheless, the court emphasized that “to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary
confinement is extended.”242 Moreover, Mr. Ramirez Sanchez was entitled
to “have an independent judicial authority review the merits of and reasons
for a prolonged measure of solitary confinement.”243 These procedures were
necessary to determine whether the solitary confinement was justified, proportionate, and accompanied by measures to safeguard the physical and
mental health of the detainee.244
3.

Solitary Confinement as Adjudicated by Other Regional Bodies

The Council of Europe’s European Committee for the Prevention of
Torture (CPT) has stated that “[s]olitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms
of solitary confinement should be as short as possible.”245 In a report on a
2007 visit to Spain, the CPT observed that sentencing prisoners to isolation
237 Ramirez Sanchez, 2006-IX Eur. Ct. H.R. at 219 (discussing the prisoner’s circumstances in Mathew v. The Netherlands, 2005-IX Eur. Ct. H.R. 57, 65).
238 Id.
239 Rohde v. Denmark, HUDOC (July 21, 2005), http://hudoc.echr.coe.int/sites/eng/
pages/search.aspx?i=001-69794.
240 Ramirez Sanchez, 2006-IX Eur. Ct. H.R. at 220–21 (citing Rohde, HUDOC ¶ 97).
241 Id. at 223–24.
242 Id. at 221–22 (“The statement of reasons will need to be increasingly detailed and
compelling the more time goes by.”).
243 Id. at 222.
244 Id. at 222–23.
245 Council of Eur., European Comm. for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, 2nd General Report on the CPT’s Activities Covering the
Period 1 January to 31 December 1991, ¶ 56 (Apr. 13, 1992). In its 1996 assessment of Spanish
prisons, the CPT found that “a regime of isolation . . . with little or nothing by way of
activity . . . constitutes inhuman treatment.” Council of Eur., European Comm. for the

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for up to twelve days or more for “insulting” officers appeared “disproportionate.”246 Upon a visit to Turkey, the CPT observed that isolation for several months in dark cells with no natural light and no access to out-of-cell
activity “could. . . be considered” inhuman and degrading.247
Outside of Europe, the problem of solitary confinement has received
somewhat less attention from regional bodies. According to the Inter-American Court of Human Rights, “prolonged isolation and coercive solitary confinement are, in themselves, cruel and inhuman treatments, damaging to the
person’s psychic and moral integrity and the right to respect of the dignity
inherent to the human person.”248 And the African Commission on Human
and Peoples’ Rights found that solitary confinement for ten months in a sixsquare-meter cell with continuous light and intermittent access to bathroom
facilities constitutes inhuman and degrading treatment but not torture.249
These conditions are admittedly more extreme than most people experience
in the United States.
*

*

*

As the discussion above illustrates, the extent to which solitary confinement has been found to constitute cruel, inhuman, or degrading treatment
depends in large part on the duration, intensity, and harm imposed by isolation. To the extent that international standards should inform Eighth
Amendment jurisprudence (as they have since the 1800s), one could advance
several arguments that relate to the use of solitary confinement. First, there
is uniform agreement that solitary confinement should be both proportional
and as short as possible. Second, where long-term isolation has been permitted, it has been in situations where procedural safeguards are in place, mediPrevention of Torture and Inhuman or Degrading Treatment or Punishment, Report to the
Spanish Government on the Visit to Spain, ¶ 113 (Mar. 5, 1996).
246 Council of Eur., European Comm. for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, Report to the Spanish Government on the Visit to Spain,
¶ 110 (Mar. 25, 2011).
247 Council of Eur., European Comm. for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, Report to the Turkish Government on the Visit to Turkey,
¶ 135 (Mar. 31, 2011).
248 Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 160, ¶ 323 (Nov. 25, 2006); see also Castillo Petruzzi v. Peru,
Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 52, ¶ 198 (May
30, 1999); Loayza Tamayo v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 33,
¶¶ 29, 57–58 (Sept. 17, 1997) (finding that prisoner who was subjected to solitary confinement with only half an hour of recreation per day experienced cruel and inhuman treatment in violation of Article 5 of the American Convention); Velasquez-Rodriguez v.
Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 156 (July 29, 1988) (finding that “prolonged isolation and deprivation of communication are in themselves cruel
and inhuman treatment”).
249 Ouko v. Kenya, Communication 232/99, African Comm’n on Human and Peoples’
Rights [Afr. Comm’n H.P.R.], ¶¶ 23, 26 (Nov. 6, 2000), http://www.achpr.org/files/ses
sions/28th/comunications/232.99/achpr28_232_99_eng.pdf.

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cal and mental health care is provided, and where sensory stimulation is
limited but not eliminated. Finally, there is also a general consensus that to
the extent possible, solitary confinement should be abolished as a
punishment.
C.

Solitary Confinement as a Dignitary Assault

The case for regulation of the use of solitary becomes stronger when one
considers the central role that dignity has played in Eighth Amendment jurisprudence, from Weems until now. Dignitary concerns inform the law on sentencing jurisprudence as well as the law on conditions of confinement.250
Focusing on solitary’s impact on human dignity, therefore, also could offer
additional reasons to question the judicial reluctance to regulate the use of
extreme isolation.
Anecdotally, people in prison and others have recounted the extent to
which extreme isolation can be dehumanizing. As one person wrote after
experiencing extreme isolation in the custody of the Federal BOP:
It seems endless. Each morning I look at the same gray door and hear
the same rumbles followed by long silences. It is endless. . . .
I see forced feedings, cell extractions . . . . Airborne bags of shit and
gobs of spit become the response of the caged.
The minds of some prisoners are collapsing in on them. . . . One prisoner subjected to four-point restraints (chains, actually) as shock therapy
had been chewing on his own flesh. . . .
Every seam and crack is sealed so that not a solitary weed will penetrate this
desolation. . . . When they’re done with us, we become someone else’s
problem.251
250 See Roper v. Simmons, 543 U.S. 551, 578 (2005); Hope v. Pelzer, 536 U.S. 730, 738
(2002) (finding that handcuffing a prisoner to a hitching post in the sun for seven hours
violated the Eighth Amendment’s fundamental principles, which require respecting “nothing less than the dignity of man” (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)) (internal quotation marks omitted)); Ford v. Wainwright, 477 U.S. 399,
409–10 (1986) (plurality opinion) (prohibiting the execution of mentally ill persons and
explaining that the Eighth Amendment “protect[s] the dignity of society itself from the
barbarity of exacting mindless vengeance”); Gregg v. Georgia, 428 U.S. 153, 158, 173, 207
(1976) (plurality opinion) (upholding the death penalty of an individual convicted of murder but noting that the Eighth Amendment requires penalties to “accord with ‘the dignity
of man’” (quoting Trop, 356 U.S. at 100)); see also Leslie Meltzer Henry, The Jurisprudence of
Dignity, 160 U. PA. L. REV. 169, 222–27 (2011) (summarizing role of dignity in Eighth
Amendment cases); Susan Raeker-Jordan, Kennedy, Kennedy, and the Eighth Amendment:
“Still in Search of a Unifying Principle”?, 73 U. PITT. L. REV. 107, 149–59 (2011) (discussing
role of dignity in Justice Kennedy’s Eighth Amendment jurisprudence).
251 Raymond Luc Levasseur, Trouble Coming Every Day: ADX—The First Year 1996, in THE
NEW ABOLITIONISTS: (NEO)SLAVE NARRATIVES AND CONTEMPORARY PRISON WRITINGS 45,
47–48 (Joy James ed., 2005).

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And after the executive director of Colorado’s Department of Corrections voluntarily spent only twenty hours in solitary confinement to learn
more about how prisoners experienced those conditions, he wrote:
First thing you notice is that it’s anything but quiet. You’re immersed in
a drone of garbled noise—other inmates’ blaring TVs, distant conversations,
shouted arguments. I couldn’t make sense of any of it, and was left feeling
twitchy and paranoid. I kept waiting for the lights to turn off, to signal the
end of the day. But the lights did not shut off. I began to count the small
holes carved in the walls. Tiny grooves made by inmates who’d chipped
away at the cell as the cell chipped away at them. . . .
I felt as if I’d been there for days. I sat with my mind. How long would it
take before Ad Seg chipped that away? I don’t know, but I’m confident that
it would be a battle I would lose.252

The evidence is not only found in anecdotes, however. Mental health
professionals who have studied the impact of solitary for decades have concluded that the “long-term absence of meaningful human contact and social
interaction, the enforced idleness and inactivity, and the oppressive security
and surveillance procedures, and the accompanying hardware and other paraphernalia that are brought or built into these units combine to create harsh,
dehumanizing, and deprived conditions of confinement.”253 An early study
of the impact of solitary confinement noted that it resulted in “deep emotional disturbances,”254 and many studies have documented an increase in
self-mutilation and self-harm among people held in solitary.255
Most critically, social interaction is central to maintain a sense of self.
Solitary confinement is destabilizing, striking at the core of a person’s identity. As experts in the area have concluded, the outcome of long-term isolation can result in “social death,” leaving persons subjected to the practice not
only emotionally scarred and harmed, but also unable to function effectively
in social contexts moving forward.256
This anecdotal and empirical data suggest that solitary confinement is a
special kind of punishment—it is “one of the most severe forms of punish252 Rick Raemisch, Opinion, My Night in Solitary, N.Y. TIMES (Feb. 20, 2014), https://
www.nytimes.com/2014/02/21/opinion/my-night-in-solitary.html. For more firsthand
narratives of the impact of solitary confinement, see N.Y. CIVIL LIBERTIES UNION, BOXED IN:
THE TRUE COST OF EXTREME ISOLATION IN NEW YORK’S PRISONS 27–43 (2012), https://
www.nyclu.org/sites/default/files/publications/nyclu_boxedin_FINAL.pdf.
253 Haney Expert Report, supra note 1, at 14.
254 See Cormier & Williams, supra note 4, at 484.
255 See Haney Expert Report, supra note 1, at 15–20 (summarizing research).
256 See United States v. D.W., 198 F. Supp. 3d 18, 94 (E.D.N.Y. 2016) (quoting Gupta,
supra note 5); GUENTHER, supra note 5, at xx–xxiv. Recent theory and research now indicate that “touch is a primary platform for the development of secure attachments and
cooperative relationships,” is “intimately involved in patterns of caregiving,” is a “powerful
means by which individuals reduce the suffering of others,” and also “promotes cooperation and reciprocal altruism.” Goetz et al., supra note 5, at 360.

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ment that can be inflicted on human beings short of killing them.”257
Though not as extreme as a punishment of death, it is nonetheless “different”—in some people its use will be permanently disabling.258 As one expert
concluded, “There is not a single study of solitary confinement wherein nonvoluntary confinement that lasted for longer than 10 days failed to result in
negative psychological effects.”259 Health effects can occur after only a few
days of solitary confinement and they increase for each additional day in
solitary.260
At the same time, there is no evidence that use of solitary confinement
achieves traditional utilitarian goals of punishment such as deterrence or
rehabilitation.261 Although one might assume extreme isolation has an
impact through incapacitating the most violent people in prisons and jails,
the evidence is scant: levels of violence are not correlated with the frequency
of use of solitary confinement.262
Solitary confinement is a practice, therefore, that uniquely harms people
in prisons and jails while producing little if any correlative benefit. It thus fits
squarely into other punishment practices condemned by the Eighth Amendment because it causes unnecessary pain for no legitimate penological purpose.263 This evidence, combined with the history of its disuse as a mode of
criminal punishment and its conflict with international human rights norms,
provides ample ground upon which to conclude that the Eighth Amendment
is a fertile source to regulate the use of extreme isolation.
IV.

OVERCOMING JUDICIAL RELUCTANCE

TO

REGULATE EXTREME ISOLATION

Although, as the prior Part establishes, a judicial revision of solitary confinement can be supported by established Eighth Amendment jurisprudence,
it nonetheless is necessary to grapple with what theoretical models stand
behind the doctrine as well. Many jurisdictions have increasingly relied upon
solitary confinement as a means of controlling people in prisons and jails,
with little oversight by any judicial system. If one could summarize the rea257 Gilligan & Lee, supra note 6.
258 See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J.L. & POL’Y
325, 336 (2006) (noting loss of impulse control and self-harm); Craig Haney, Mental Health
Issues in Long-Term Solitary and “Supermax” Confinement, 49 CRIME & DELINQ. 124, 130–31
(2003) (noting the association of suicide and self-mutilation with isolated housing); Scharff
Smith, supra note 204, at 492 (noting problems with impulse control, violent reactions,
self-mutilation, and suicide associated with prolonged isolated confinement).
259 Haney & Lynch, supra note 34, at 531.
260 Scharff Smith, supra note 204, at 471, 487, 494–95, 503–04.
261 See Wilkinson v. Austin, 545 U.S. 209, 227 (2005); Ryan M. Labrecque, The Effect of
Solitary Confinement on Institutional Misconduct: A Longitudinal Evaluation 117–18
(Aug. 2015) (dissertation) (on file with author) (reporting results of longitudinal study of
solitary confinement in Ohio).
262 See, e.g., ALISON SHAMES ET AL., SOLITARY CONFINEMENT: COMMON MISCONCEPTIONS
AND EMERGING SAFE ALTERNATIVES 17–18 (2015) (collecting data).
263 Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981); see also Estelle v. Gamble, 429
U.S. 97, 103 (1976).

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son that judges have hesitated to use available tools to regulate the use of
extreme isolation, it would reduce to one word: deference. The purpose of
this Part is to interrogate the modes of deference that operate when courts
are confronted with challenges to solitary confinement.
Political and social attitudes of deference are grounded in a dichotomy
in decisionmaking, in which nonelites voluntarily accept leadership by an
elite subset.264 Judicial deference in the area of punishment regulation has a
similar effect but is grounded in two different forms that relate to the particular context in which courts operate. The first is rooted in conceptions of
institutional democratic design: the courtroom, controlled by unelected
judges, is not a proper site for resolving conflicts over the proper amount of
punishment. Instead, legislatures, with their majoritarian accountability and
inclusive process, are the institutions vested with authority over decisions
about what kind of punishment is appropriate. The second form of deference is grounded in judgments about competence: generalist judges are not
competent to question correctional judgments about the need for measures
such as solitary confinement. The executive branch, tasked with carrying out
the set of punishments approved by legislatures, is the proper decision-making body for deciding when measures such as extreme isolation are necessary
for prison administration.265 Of course, when federal judges are reviewing
the experience of punishment in state-run facilities, there is a federalism
overlay that can complicate deference in many directions, but this is true
whether the federal court is considering the workings of a state prison or any
other state entity, and as such I will leave it to the side here.
Regulating solitary confinement poses difficulties because on its face it
might trigger both kinds of deference. Solitary confinement is essentially
used as a punishment for wrongdoing within prison. But it is also an imposition of harsh conditions of confinement. It could be analogized to challenges to criminal sentences or it could be analogized to cases involving
discrete conditions of confinement, such as the challenge to the provision of
living space in Rhodes v. Chapman.266 If it is seen as analogous to criminal
sentencing, then it might call to mind the deference rooted in concerns
about institutional legitimacy.267 After all, the Constitution does not require
adherence to one theory of punishment268—so if a court lacks authority to
determine what theory of punishment a sentence must vindicate, it is at its
264 John G.A. Pocock, The Classical Theory of Deference, 81 AM. HIST. REV. 516, 517 (1976).
265 Eric Berger has described sources of deference in different terms as based in “political authority and epistemic authority.” Eric Berger, In Search of a Theory of Deference: The
Eighth Amendment, Democratic Pedigree, and Constitutional Decision Making, 88 WASH. U. L.
REV. 1, 6 (2010).
266 452 U.S. 337.
267 See supra subsection II.B.2.
268 See Kennedy v. Louisiana, 554 U.S. 407, 437 (2008) (observing that Eighth Amendment doctrine is “still in search of a unifying principle”); Ewing v. California, 538 U.S. 11,
25 (2003) (plurality opinion) (observing that the Constitution “does not mandate adoption of any one penological theory” (quoting Harmelin v. Michigan, 501 U.S. 957, 999
(1991) (Kennedy, J., concurring in part and concurring in the judgment))).

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lowest ebb when it reviews criminal sentences for proportionality. If it is seen
as analogous to an administrative response to disorder, then it might trigger
the deference rooted in institutional competence.269 What basis does a court
have for questioning the judgment of correctional experts as to what kind of
force was necessary to quell a disturbance? In an era of fiscal want, how can a
court order a prison system to provide specific material conditions of confinement, such as a specified amount of living space or access to natural
light?
Thus, in challenges to the use of solitary confinement, courts may have a
tendency to build one model of deference on the other, making any challenge to the conditions or amount of extreme isolation doomed to fail. The
solution is to see that the reasons for deference that are central to the two
different models of Eighth Amendment regulation do not necessarily translate to the use of solitary confinement. Unlike the criminal sentences that
are adjudicated under the Eighth Amendment’s proportionality principle,
sentences of solitary confinement are imposed by midlevel executive officials
for transgression of prison rules, not by publicly accountable legislators for
transgression of criminal law. Prison administrators are not publicly accountable in the way that legislators are, and it is difficult to argue that their use of
solitary confinement is the product of majoritarian decisionmaking. Admittedly, some public officials have made “tough on crime” proposals central to
successful campaigns, but even if one were to read those examples as indicative of majoritarian sentiment, one cannot conclude that they indicate public
approval of current practices regarding the use of extreme isolation.270
269 See supra subsection II.B.2.
270 For example, many governors have run on the promise to build more and harsher
prisons, without making reference to the use of extreme isolation in those facilities. See
Donald P. Baker, Wilder Defiant in Final Budget: Spending Plan at Odds with Some of Next Va.
Governor’s Priorities, WASH. POST, Dec. 21, 1993, at A1 (noting Virginia Governor-elect
George F. Allen’s promise to build more prisons); Linda Kleindienst, Martinez Promises
More Prison Beds, SUN SENTINEL (Sept. 14, 1990), http://articles.sun-sentinel.com/1990-0914/news/9002140143_1_prison-beds-new-prison-new-inmates (reporting that Florida Governor Bob Martinez promised to build more prison beds if reelected); Richard Perez-Pena,
Governor’s Inmate Estimates Were Too High, Memo Says, N.Y. TIMES (Jan. 28, 1998), http://
www.nytimes.com/1998/01/28/nyregion/governor-s-inmate-estimates-were-too-high-me
mo-says.html (reporting Governor George Pataki’s reelection proposal to build new maximum-security prison); Frank Reeves, Ridge Facing Trying Times; Inaugural Euphoria Bound to
Give Way to Governing Reality, PITT. POST-GAZETTE (Jan. 15, 1995) (recounting promise of
Pennsylvania Governor-elect Tom Ridge to build more maximum security prisons for
juveniles); George Skelton, News Analysis: A Split Decision on Deukmejian’s Legacy, L.A. TIMES
(Dec. 30, 1990), http://articles.latimes.com/1990-12-30/news/mn-10337_1_georgedeukmejian (recounting California Governor Deukmejian’s promise to build more prisons); Larry Williams, Pitching Promises in Bid for Governor; Little Emphasis on Practicality, HARTFORD COURANT, May 21, 1994, at A1 (recouting Connecticuit Governor John Rowland’s
promise to build new prisons, “spartan ones, not country clubs”); Full Text of Owen’s [sic]
2003 State of State Speech, DENV. CHANNEL (Jan. 16, 2003), http://www.thedenverchannel.
com/news/full-text-of-owen-s-2003-state-of-state-spee-1?page=2 (Colorado Governor Bill
Owens promising to build new prisons in Colorado).

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Unlike the imposition of particular conditions of confinement, the purpose of prison discipline sounds in the traditional justifications of criminal
law—retribution, deterrence, and rehabilitation.271 By contrast, most conditions claims either involve conditions caused by lack of resources or neglect,
or are instantaneous responses to a perceived threat.272 The choice to place
someone in solitary confinement is an affirmative step taken by corrections
officials for the purposes of vindicating penological goals. Given the lack of
evidence that extreme isolation accomplishes these goals,273 courts may be
better situated to abandon a posture of deference that is more appropriate
when decisions involve areas within the ken of corrections officials. Indeed,
the Association of State Correctional Administrators, representing leaders of
each state corrections agency as well as heads of jails in large cities, recently
issued a statement calling for substantial reform of the use of extreme isolation in prisons and jails.274
Thus, neither mode of deference may be suited for the use of solitary
confinement. Overcoming reflexive deference requires recognition that
Eighth Amendment doctrine is truly chimerical—it imposes different limitations in different contexts, and solitary confinement spans different models
of regulation. Extreme isolation is not a formal punishment imposed by legislatures, judges, and jury; nor is it a split-second response to a crisis that
correctional staff are best equipped to address. This is not to say that courts
should show no deference to the decision to confine someone in extreme
isolation, but to argue that there is space for judges to question how, why,
and for how long it is used.
CONCLUSION
Creating space for the Eighth Amendment to regulate the use of solitary
confinement will not eliminate its overuse. Like any mode of punishment,
regulation can never exist exclusively on the constitutional plane. But until
now there has been almost no constitutional regulation of the practice of
extreme isolation. As I have shown here, the Eighth Amendment is broad
enough and sensitive enough to entertain new challenges to the use of solitary confinement. Doing so requires recognizing that solitary confinement
does not easily square with the models of decisionmaking upon which Eighth
Amendment deference is premised. I have tried to provide a way forward in
this Article—but it is only the beginning of the process.

271 See, e.g., N.Y. COMP. CODES R. & REGS. tit. 7, § 250.2 (1979) (expressing deterrent
and rehabilitative goals of inmate discipline).
272 See, e.g., Whitley v. Albers, 475 U.S. 312, 320–21 (1986); Estelle v. Gamble, 429 U.S.
97, 103–04 (1976).
273 See Keramet Reiter, Supermax Administration and the Eighth Amendment: Deference, Discretion, and Double Bunking, 1986–2010, 5 U.C. IRVINE L. REV. 89, 124–27 (2015).
274 See Timothy Williams, Prison Officials Join Movement to Curb Solitary Confinement, N.Y.
TIMES (Sept. 2, 2015), https://www.nytimes.com/2015/09/03/us/prison-directors-groupcalls-for-limiting-solitary-confinement.html.

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