By William Tong | October 14, 2017
While it is true that prisoners must be punished, justice and humanity necessitate that they be punished within the limits of the Constitution and accepted standards of human decency. But in contemporary American society, many prisoners are punished in the form of solitary confinement, where they have little access to external stimuli such as books or television, maintain no meaningful social interaction with others, and spend over twenty-two hours a day in barren solitude. In such a sterile environment, inmates can develop “serious psychological” issues ranging from “insomnia and confusion to hallucinations and outright insanity.”
Yet when the mental ramifications of solitary confinement are measured against the constitutional limits of punishment embodied in the Eighth Amendment, courts have consistently failed to find a violation. Although the issue of solitary confinement has been examined by many scholars, the existing academic dialogue surrounding the issue remains dispassionately one-dimensional in that it places an undue emphasis on the physical conditions of solitary confinement but fails to consider the emergence of studies documenting its psychological impact.
Two promising trends appear poised to change the status quo of solitary confinement litigation. First, courts have become increasingly willing to consider the united body of evidence detailing the psychological consequences of solitary confinement. Second, courts are adopting an evolving interpretation of the cruel and unusual punishment clause based on the morality of a changing society. Given the concomitance of the two trends, this piece contends that courts are now more legally justified and morally compelled than ever to rule solitary confinement unconstitutional.
The psychological impact of solitary confinement has long been documented. As early as 1830, Alexis de Tocqueville, when studying the US prison system, said that “absolute solitude is beyond the strength of man.” However, it was not until recently that the mental ramifications of solitary confinement were acknowledged in the court of law. This acknowledgment came about largely due to the explosive growth of psychiatric studies surrounding solitary confinement in the late twentieth century.
Stuart Grassian, who conducted the first clinical study of solitary confinement in the 1980s, discovered that it can cause a “clinically distinguishable psychiatric syndrome” with symptoms such as hyperresponsitivity, perceptual distortions, panic attacks, cognitive dysfunction, paranoia, and problems with impulse control. Grassian is not alone in his findings; similar studies “have almost uniformly shown that solitary confinement has serious psychopathological consequences.” For instance, Thomas Benjamin and Kenneth Lux found in their study that “solitary confinement alone, even in the absence of physical brutality or unhygienic conditions, can produce emotional damage, declines in mental functioning and even the most extreme forms of psychopathology.”
Further research by Craig Haney in 2003 again emphasized that “when inmates are subjected to extensive cell confinement and deprivation of stimulation, a majority can be expected to report psychological symptoms.” The strong correlation between the symptoms listed in Haney’s study with those of Grassian’s study only goes to show how “remarkably consistent the bulk of modern research on solitary confinement is in its findings of deleterious psychological effects.” As these studies persuasively and uniformly indicate, solitary confinement has severe and extensive psychological ramifications that pervade every aspect of the prisoner’s mental health.
Yet, even with so much convincing evidence pointing to the destructive psychological effects of solitary confinement, the courts have never found it to be unconstitutional. The main factor contributing to the sustained legal legitimacy of solitary confinement is the courts’ emphasis on the physical conditions of the cell rather than its psychological implications. This was demonstrated by a series of fifteen different court verdicts in the 1960s, where the courts declared solitary confinement to be constitutional without “even [considering] the possibility that mental deprivation may be of questionable legality.”
The courts’ failure to acknowledge the mental effects of solitary confinement was reaffirmed later in Newman v. Alabama (1972), where the court stated that “as long as the basic physical needs of the prisoners are met, there is no need to examine [their] psychological state.” In these early solitary confinement cases, the courts’ reluctance to consider the psychiatric consequences of solitary confinement can be attributed to the lack of scientific understanding about its psychological impact.
With the emergence of consistent and compelling evidence pointing to the detrimental psychological impact of solitary confinement, the first promising sign for litigation came about in 1978, when the court in Hutto v. Finney (1978) recognized solitary confinement as “a form of punishment subject to scrutiny under Eighth Amendment standards.” Hutto was a milestone as it established the legal groundwork on which ensuing challenges to the constitutionality of solitary confinement built. The court extended its consideration of the psychological implications of solitary confinement in Sheley v. Dugger (1987) by recognizing the existence of “substantial, serious, and possibly irreversible psychological illnesses” associated with solitary confinement. Just a year later, the court in Davenport v. DeRobertis (1988) noted that “there is plenty of medical and psychological literature concerning the ill effects of solitary confinement.” Due to the explosive growth of clinical studies surrounding solitary confinement in 1980s, the cases of Sheley and Davenport compelled the courts to acknowledge the consistency of these studies and contributed to subsequent litigation by urging the courts to incorporate mental impact into their constitutional analysis of solitary confinement.
On the premise of these preceding cases, the Supreme Court took a huge leap forward in solitary confinement jurisprudence by declaring in Madrid v. Gomez (1995) that “the Eighth Amendment prohibition on cruel and unusual punishment includes the mental health of prisoners” because it is “a need as essential to a meaningful human existence as physical demands.” Previously, courts had placed significant emphasis on the physical conditions of solitary confinement, where the deprivation of soap or clean bedding could amount to a constitutional violation. However, in Madrid, the prisoners did not lay claim to the deprivation of any basic physical needs, but rather that “the conditions of extreme social isolation and reduced environmental stimulation inflicts psychological trauma and in some cases deprive inmates of sanity itself.” Recognizing the “consistency” with which “clinical literature has reported the psychiatric disturbances [caused by] isolation and reduced stimulation,” the court ultimately ruled that “it would be just as unconstitutional to make a prisoner mentally ill as it would be to make him physically ill.”
The significance of Madrid for solitary confinement litigation cannot be over-emphasized. By considering scientific studies, the court established two seminal principles in its evolving interpretation of the solitary confinement: first, it acknowledged the growing body of consistent and compelling clinical evidence pointing to the adverse mental impacts of solitary confinement. Second, the court modified its analysis of solitary confinement by placing a greater weighting on psychological ramifications. As such, it is evident that courts have adopted an evolving interpretation with regards to psychological evidence in solitary confinement jurisprudence.
Not only is the courts’ consideration of psychological evidence changing, the standards against which such evidence are measured against are also evolving. This can be demonstrated in two ways; first, courts often allude to the evolutionary principle underpinning the cruel and unusual punishment clause in verdicts. Second, the exact standards of the cruel and unusual punishment clause have evolved over time as courts define and modify its contours.
The notion of an evolving interpretation is intrinsic to the Eighth Amendment and well-established in American jurisprudence. In Trop v. Dulles (1958), the court held that “the Eighth Amendment is not static.” This implies that the criteria with which the court should use in determining what is cruel and unusual should evolve as human conceptions of justice and dignity metamorphose. Several subsequent verdicts have affirmed the concept of an evolving interpretation, such as Rhodes v. Chapman (1981) and Roper v. Simmons (2005), both proclaiming that “the standard for cruel or unusual punishment is an evolving one that adheres to contemporary notions of human dignity.” A more pragmatic definition was offered by Helling v. McKinney (1993), which states that the real assessment of the cruel and unusual punishment clause is “whether society considers the [punishment] to be so grave that it violates contemporary standards of decency to expose anyone to such a risk.” The seminal demonstration of the notion of an evolving interpretation can be seen in Madrid, in which the court held that the imposition of solitary confinement on inmates with mental health conditions “cannot be squared with evolving standards of humanity or decency.” Since courts have repeatedly stated that the principle behind the cruel and unusual punishment clause should progress with time and societal values, the Eighth Amendment should be examined with an evolving interpretation.
Not only is the interpretation of the Eighth Amendment fluid in principle, but also in terms of its application by courts. Although the exact standards of the clause have shifted from case to case, most courts have adopted the “two-prong test” set out in Estelle and Rhodes. This bifurcated approach means that for solitary confinement to constitute cruel and unusual punishment, it must satisfy an objective and a subjective element. The former considers whether there has been a deprivation serious enough to pose a substantial risk of harm, while the latter considers whether the deprivation was imposed with deliberate indifference. The objective prong of the clause was first implemented by the court in Estelle to be the “unnecessary and wanton infliction of pain.” However, as solitary confinement litigation became increasingly controversial, the court in Wilson v. Seiter (1991) provided a more empirical definition of the objective component, which is “the provision of humane conditions of confinement and reasonable measures to guarantee the safety of the inmates.
On the other hand, the subjective component is itself an addition to the objective clause. This was implemented by the court in Rhodes on the grounds that the constitutional analysis of solitary confinement could not rely solely on a single, objective criterion. In the first instance, the deliberate indifference clause meant that “in order to violate the cruel and unusual punishment clause, a prison official must have a sufficiently culpable state of mind.” In Farmer, the ambiguous phrase “culpable state of mind” was clarified to mean that prison administrators “must know of and disregard an excessive risk to the health or safety of inmates.” Since the standards for which solitary confinement may be found to be unconstitutional have clearly shifted with the passage of time and the evolution of social mores, the theoretical interpretation and practical application of the cruel and unusual punishment clause should be subject to “evolving standards of decency that mark the progress of a maturing society.”
After the landmark decision of Madrid, the coincidence between the emergence of convincing medical evidence surrounding solitary confinement and the courts’ evolving interpretation of the cruel and unusual punishment clause have catalyzed the courts’ willingness to consider mental evidence in its Eighth Amendment analysis of solitary confinement. For instance, the court in Knox v. Rhodes (2009) asserted that “it is beyond argument that mental health care constitutes a serious medical need [because] the conditions of solitary confinement could be detrimental to one’s mental health.” This was affirmed by Brown v. Plata (2011), in which the Supreme Court ruled that “the mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment.”
Other legal challenges to solitary confinement have also experienced great success, with Ashkar v. Brown (2015) being the most prominent in that it ended the use of indefinite solitary confinement for over 400 inmates in Pelican Bay Prison and placed restrictions on the imposition of solitary confinement on alleged gang affiliates. Observing these recent cases, it seems that the establishment of “meaningful social contacts and sensory enrichment” as “minimum human necessities” by the emergence of consistent and convincing psychological evidence have further accelerated the courts’ shift in attitude regarding the constitutionality of solitary confinement.
Looking forward, there is now a sufficiently saturated and authoritative volume of psychological evidence regarding solitary confinement for courts to consider. Therefore, future development in solitary confinement litigation will need to rely on the continued evolution of the cruel and unusual punishment clause as social perceptions of humanity and justice morph. As one lawyer in Ashkar said, as the “conscience of the nation [is] awakened,” courts will be morally compelled to further refine their constitutional examination of solitary confinement, ultimately leading to the complete prohibition of such a degrading and inhumane institution when social attitudes toward it reach an unbearable state of intolerance and disgust. A comparison may be drawn between the institution of solitary confinement and those of child-labor and slavery. Just as these institutions and practices became obsolete and illegal with the passage of time and the evolution of social morality, there is now sufficient clinical evidence, public outrage, and academic consensus for solitary confinement to be ruled unconstitutional pursuant to the Eighth Amendment.
By examining the mounting body of clinical studies detailing the psychological consequences of solitary confinement and the development of the Eighth Amendment analysis of solitary confinement, it becomes clear that the institution of solitary confinement simply should not and cannot be tolerated. No one, regardless of how severe their crimes, should be subject to an institution that denies them the basic human necessity of mental well-being and violates the fundamental principles of a civilized society. There is already a growing body of authoritative evidence documenting the debilitating psychological ramifications of solitary confinement, and its importance in solitary confinement litigation has been constantly rising, thereby demonstrating the courts’ increasing willingness to consider such evidence as possible indications of unconstitutionality. In addition, not only is the courts’ consideration of the evidence evolving, the standard against which such evidence is measured in the Eighth Amendment is also changing. The cruel and unusual punishment clause is not a static statement, but rather a dynamic normative judgment that necessitates fluid applicability as the fundamental mores of society alter. As such, given the convergence of the two trends, courts are now more legally justified and morally bound than ever to rule solitary confinement unconstitutional. With the elimination of solitary confinement as a punitive measure in Texas prisons just last week, and to borrow the title of an article from the Atlantic, “the beginning of the end for solitary confinement” is dawning upon us.
William Tong is a Trinity junior from Macau, majoring in Political Science and Philosophy
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