Preliminary Draft Subject to Revision

BANNING THE BING:
WHY EXTREME SOLITARY CONFINEMENT IS CRUEL
AND FAR TOO USUAL PUNISHMENT
Elizabeth Bennion∗
ABSTRACT
To be kept in solitude is to be kept in pain . . .
and put on the road to madness.
(E.O. Wilson)
The United States engages in extreme practices of solitary confinement
that maximize isolation and sensory deprivation of prisoners. The length is often
indefinite and can stretch for weeks, months, years, or decades. Under these
conditions, both healthy prisoners and those with pre-existing mental health issues
often severely deteriorate both mentally and physically. New science and data
provide increased insight into why and how human beings (and other social
animals) deteriorate and suffer in such environments. The science establishes that
meaningful social contacts and some level of opportunity for sensory enrichment
are minimum human necessities. When those necessities are denied, the high risks
of serious harm apply to all prisoners, no matter how seemingly resilient
beforehand. Given these facts, this Article argues that solitary confinement, as
commonly practiced in the United States, is cruel and unusual punishment—
whether analyzed under current Supreme Court standards or an improved
framework. Furthermore, recently released data on states implementing reforms
shows that extreme solitary confinement tactics are counterproductive to numerous
policy interests, including public safety, institutional safety, prisoner welfare, and
cost efficiency. Both the scientific and policy data suggest possible avenues for
effective reform.

* Professor Elizabeth Bennion is currently an Academic Fellow at Brigham Young University Law
School. Thank you to the many faculty members at BYU Law School who offered their feedback on
this piece and to the tireless work of doctors and scholars such as Dr. Craig Haney, Dr. Stuart
Grassian, and Dr. Terry Kupers who have contributed so heavily to this field. Special thanks to Dr.
Kupers for his thoughtful feedback and encouragement. Many thanks also to my research assistant,
Michael Hinckley.
∗

Electronic copy available at: http://ssrn.com/abstract=2411845

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TABLE OF CONTENTS

I.

INTRODUCTION

II.

THE HISTORY OF SOLITARY CONFINEMENT

III.

EFFECTS OF ISOLATION AND SENSORY DEPRIVATION ON BRAIN, BODY
AND BEHAVIOR
A. MODERN PRISONER STUDIES
B. STUDIES OUTSIDE THE MODERN PRISON

IV.

CRUEL AND UNUSUAL PUNISHMENT IN THE CONTEXT OF PRISON
CONDITIONS
A. SUPREME COURT JURISPRUDENCE
B. CRITICISMS OF SUPREME COURT ANALYSIS
C. AN IMPROVED PRISON CONDITIONS EIGHTH AMENDMENT STANDARD
D. WHY SOLITARY CONFINEMENT IS CRUEL AND UNUSUAL DESPITE ITS
FREQUENT USE IN THE UNITED STATES
1. CRUEL AND UNUSUAL UNDER TODAY’S STANDARD
2. CRUEL AND UNUSUAL UNDER A MODIFIED STANDARD

V.

ALTERNATIVES
A. THE POLICY GOAL DISCONNECT
B. SUCCESSFUL AND EXPERIMENTAL MODELS

VI.

CONCLUSION: PROPOSED CHANGES AND REAWAKENING TO
REHABILITATION

Electronic copy available at: http://ssrn.com/abstract=2411845

3
I.
INTRODUCTION
When the door is locked against the prisoner, we
do not think about what is behind it. . . .
Were we to enter the hidden world of
punishment, we would be startled by what we
see.
(Justice Anthony Kennedy)1
The largest prisoner hunger strike in California’s history lasted 60 days
and ended on September 5, 2013.2 Involving approximately 30,000 prisoners at its
peak, the protest’s central demand was over the state’s use of indefinite solitary
confinement that allows prisoners to be held for years, and even decades, in
isolation.3 As the strike stretched into its second month, dozens had been sent to
hospitals and infirmaries.4 By the final week, “nearly 10 protestors a day were
collapsing or otherwise required medical care.”5 The strikers won no major
concessions regarding solitary confinement, but did gain the promise of legislative
hearings. At the end of the strike, protest leaders released a statement: “Our goal
remains: Force the powers that be to end their torture policies and practices in
which serious physical and psychological harm is inflicted on tens of thousands of
prisoners, as well as our loved ones outside.”6
While the strikers failed to accomplish their central goals, the strike did
focus national and international attention on the most troubling aspect of a deeply
troubled penal system. Solitary confinement, as currently practiced in the United
States, represents a serious miscalculation of the appropriate balance between
1
Speech at the American Bar Association Annual Meeting, An Address by Anthony M. Kennedy
Associate Justice, Supreme Court of the United States, August 9, 2003,
http://meetings.americanbar.org/webupload/commupload/CR209800/newsletterpubs/Justice_Kenned
y_ABA_Speech_Final.pdf.
2
Paige St. John, California state prisons chief says inmates’ hunger strike has ended, LA TIMES, Sept.
5, 2012, http://www.latimes.com/local/political/la-me-ff-prisons-chief-says-hunger-strike-has-ended20130905,0,345517.story.
3

See Paige St. John, Independent monitors to keep watch on huger strike at 9 prisons, LA TIMES, July
27, 2013, available at http://articles.latimes.com/2013/jul/27/local/la-me-ff-prison-strike-20130727.
4
Sharon Bernstein, California grapples with inmate illness as hunger strike drags on, Reuters, Aug.
16, 2013, available at http://usnews.nbcnews.com/_news/2013/08/16/20051427-california-grappleswith-inmate-illness-as-hunger-strike-drags-on?lite.
5
Paige St. John, Inmates end California prison hunger strike, LA TIMES, Sept. 5, 2013,
http://articles.latimes.com/2013/sep/05/local/la-me-ff-prison-strike-20130906.
6

Id.

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prison security, public safety, cost efficiency, and prisoner welfare. Indeed, the
extreme solitary confinement measures in this country promote none of those
interests. The measures also violate the Eighth Amendment’s prohibition of cruel
and unusual punishment because they deny prisoners what science indicates are
minimum human necessities.
Conditions of solitary confinement vary throughout the United States. But
it is not uncommon for prisoners to spend decades alone in windowless cement
rooms with a perimeter approximately the size of a parking space or a king-sized
bed for 23-hours a day. Their meals may be pushed through slots of a large solid
metal door—thus they eat, sleep, and defecate in spaces within a few feet of each
other. The one-hour “exercise” time might be in a cage on a concrete slab or in a
small, barren, concrete-enclosed pen that prisoners nickname “the dog run.”
Prisoners may go years without seeing more of the outdoors than a small patch of
sky and never having been physically touched by another human being other than
when placed in constraints, such as handcuffs and chains.7 While they may hear
echoing shouts of other prisoners, there is no opportunity for normal conversation
or association with others from the confines of their cells. They generally also
have no access to rehabilitative programs. It is important to note at the outset that
when this Article speaks of “solitary confinement,” it is not simply referring to
housing an inmate in his or her own single-occupancy cell—it is referring to all
these associated types of extreme measures to provide isolation and sensory
deprivation.
In this extreme environment, many prisoners suffer serious psychological
and physical deterioration. Prisoners entering solitary confinement with mental
health issues often find them severely exacerbated. Prisoners entering without
mental health issues often acquire acute mental illness during their stay.8 In
California, 2% of its prison population is housed in isolation and yet that 2%
accounted for 42% of all prison suicides from 2006 to 2010.9 Long-term isolation
can also contribute to dramatically increased costs, increased “assaultive or anti-

7
Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, Crime &
Delinquency, Vol. 49 No.1, Jan. 2003, 126; Testimony of Professor Craig Haney, Senate Hearing on
Solitary Confinement, June 19, 2012, 4-5, http://www.judiciary.senate.gov/pdf/12-619HaneyTestimony.pdf; Madrid v. Gomez, 889 F. Supp. 1146, 1229 (N.D. Cal. 1995).
8

Stuart Grassian, Psychiatric Effects of Solitary Confinement, Journal of Law and Policy, Vol.
22:333 (2006) (“I have observed that, for many of the inmates so housed, incarceration in solitary
caused either severe exacerbation or recurrence of preexisting illness, or the appearance of acute
mental illness in individuals who had previously been free of any such illness).
9

Solitary Confinement: Cruel But Not Unusual, WASH POST, Aug. 3, 2013,
http://articles.washingtonpost.com/2013-08-03/opinions/41029710_1_solitary-confinement-prisonsuicides-other-democratic-nation.

5
social behavior, result in negative outcomes for institutional safety, and increase
the risk of recidivism after release.”10
Recognizing the extremely negative effects of solitary confinement on
prisoners themselves and on larger policy goals, there has been a growing
groundswell for reform—spurred at least in part by a much smaller prisoner hunger
strike in 2011.11 For example, the United States Senate held its first congressional
hearing on the issue in June of 2012, with the lead senator calling for reforms.12
The U.N. Special Rapporteur on torture urged the United States to abolish
prolonged solitary confinement (defined as anything more than 15 days)—which
he argued could amount to torture.13 Other influential organizations voicing
opposition to the current state of affairs include the American Bar Association, the
American Civil Liberties Union (ACLU), Amnesty International, Human Rights
Watch, the European Court for Human Rights, the American Academy of Child
and Adolescent Psychiatry, the National Alliance of Mental Illness, the Vera
Institute of Justice, the Urban Institute, and others.14 Several states have begun
reforms but many resist the growing tide for change.15
Thus at least parts of the nation seem presently poised for genuine reform
efforts. But obstacles to those reforms include the fact that creating more humane
conditions for prisoners is not generally seen as a popular position for politicians,
among the general population there is a lack of scientific understanding regarding
the extent and severity of solitary confinement’s potential effects, a culture of

10

Written Testimony of Michael Jacobson, President & Director, Vera Institute of Justice, Records
Submitted for Hearing Before the S. Judiciary Subcomm. on the Const., Human Rts., and Civil Rts.,
112th Cong. (2012) (Hereafter Senate Hearing on Solitary Confinement, June 19, 2012) 1-2,
http://www.judiciary.senate.gov/resources/transcripts/upload/061912RecordSubmission-Durbin.pdf.
11
See California Prison Hunger Strike: 30,000 Inmates Refuse Meals, HUFF POST, July 9, 2013,
available at http://www.huffingtonpost.com/2013/07/09/california-prison-hunger-strike30000_n_3567639.html.
12

Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences,
Senate Hearing on Solitary Confinement, June 19, 2012,
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6517e7d97c06eac4ce9f60b09625ebe8.
13

Juan E. Mendez, quoted in United Nations Press Release, Aug. 23, 2013,
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13655&LangID=E.
14

See, e.g., Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in
Determining What Is Cruel and Unusual, 49 Am. Crim. L. Rev. 1815, 1861 (2012); [insert statements
submitted by various entities to the Senate Hearing on Solitary Confinement,
http://www.judiciary.senate.gov/resources/transcripts/upload/061912RecordSubmission-Durbin.pdf.]
15

See State Reforms to Limit the Use of Solitary Confinement, ACLU,
http://www.aclu.org/files/assets/state_reforms_to_limit_the_use_of_solitary_confinement.pdf.

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16

harsh punishment predominates in many modern prisons, and there is a
legislative and judicial widespread hesitancy to interfere with matters of prison
security and administration—presumably over fear of unforeseen results. So, for
example, one federal judge found that certain solitary confinement conditions did
“press the outer bounds of what most humans can psychologically tolerate,” and
yet refused to find the conditions cruel and unusual for all inmates.17 It is this type
of hesitancy that likely prompted Justice Kennedy’s admonition that “[c]ourts may
not allow constitutional violations to continue simply because a remedy would
involve intrusion into the realm of prison administration.”18
This Article addresses these obstacles by examining the increasing
scientific evidence of the severely debilitating effects of isolation and sensory
deprivation, explaining why the science requires finding the current practices cruel
and unusual, and discussing the emerging data regarding the societal effects of
reform. This is a particularly opportune time to make the analysis due to the
explosive growth in neuroscientific research, the wealth of evidence produced
from a variety of sources for the 2012 Senate Hearing, and the recent reform
16

Mississippi Commissioner of Corrections, Christopher Epps, has become a proponent of reform
and was one of those called to testify before the Senate Hearing on Solitary Confinement in June
2012, but he admitted that at one time he did believe difficult inmates should be locked down as
tightly as possible for as long as possibe: “That was the culture and I was part of it,” he said. See
Erica Goode, Prisons Rethink Isolation Saving Money, Lives, and Sanity, NY TIMES, Mar. 10, 2012,
http://www.nytimes.com/2012/03/11/us/rethinking-solitary-confinement.html?pagewanted=all&_r=0.
17

Madrid v. Gomez, 889 F. Supp. 1146, 1267 (N.D. Cal. 1995). The judge who refused to find the
conditions cruel and unusual for all inmates housed in a particular prison’s solitary confinement
stressed that the opinion was:
based on the current record and data before us. We cannot
begin to speculate on the impact that [these solitary]
conditions may have on inmates confined . . . for periods of
10 or 20 years or more; the inmates studied in connection
with this action had generally been confined for three years
or less. Id.
At the time that opinion was written the “record and data” were necessarily limited because the
prison facility at issue had only been existent for approximately five years. Id. at 1155. But by 2011
more than 500 inmates in that same facility had spent over a decade in solitary confinement, more
than 200 had spent more than 15 years there, and 78 had been there more than 20 years. Amnesty
International, USA The Edge of Endurance, Prison Conditions in California’s Secure Housing Units,
Sept. 2012, 2, http://www.amnestyusa.org/sites/default/files/edgeofendurancecaliforniareport.pdf.
Louisiana holds the record for the longest terms served in solitary confinement in the United States.
Herman Wallace’s 41 years in isolation ended in October 2013 when his conviction was
overturned—he died a few days later. His co-defendant, Albert Woodfox, also had his conviction
overturned but remains in solitary confinement pending the state’s appeal. David Cole, For Herman
Wallace, solitary confinement amounted to a death sentence, WASH POST, October 24, 2013,
http://www.washingtonpost.com/opinions/for-herman-wallace-solitary-confinement-amounted-to-adeath-sentence/2013/10/24/d37f452a-39ab-11e3-b6a9-da62c264f40e_story.html.
18

Brown v. Plata, 131 S.Ct. 1910, 1928-29 (2011).

7
efforts of some states that provide new insight regarding societal effects of a
change in course. The data also suggests what types of reforms could effectively
redefine solitary confinement policies within constitutional bounds.
This Article first examines the history of U.S. solitary confinement,
including why a penal system that is desperately overcrowded and underfunded
turned to a method that exacerbates both crowding and cost issues. Part III
considers the effects of isolation and sensory deprivation, drawing on both studies
of prisoners and studies of humans and animals in other contexts of isolation. It
highlights that there is increasingly no clear line between physical and
psychological harm. Part IV explains the jurisprudence surrounding the Eighth
Amendment as it applies to prison conditions and some potential improvements.
It then argues that under either the current or an improved standard, solitary
confinement (as commonly currently practiced in the United States) is cruel and
unusual. This is due to the scientific evidence that extreme isolation and sensory
deprivation constitute denial of minimum human necessities. Part V examines
alternative solutions, including evidence from recent experiments with reforming
solitary confinement programs and the effect on different policy interests. The
Article concludes with proposed changes that would appropriately balance prison
security needs with public safety, public funding, and prisoner welfare obligations
and fall short of cruel and unusual punishment prohibitions.

II.
The History of Solitary Confinement
I believe that very few men are capable of
estimating the immense amount of torture and
agony which this dreadful punishment,
prolonged for years, inflicts upon the sufferers .
. . . I hold this slow and daily tampering with
the mysteries of the brain, to be immeasurably
worse than any torture of the body.
(Charles Dickens after an 1842 visit to the
Cherry Hill prison experimenting with extreme
isolation techniques) 19
There are a host of names for it: the bing, the hole, the hotbox, the SHU,20
the block, the cooler, the pound, lockdown, 23/7, SCU,21 Administrative
19

CHARLES DICKENS, AMERICAN NOTES FOR GENERAL CIRCULATION, London: Chapman and Hall
(1842) at 119-120.

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22

Segregation (AdSeg), isolation, separation, cellular, Supermax, communications
management unit, control unit, disciplinary housing unit, intensive management
unit, special management, security housing, close management, high security,
closed cell restriction, etc.23 The precise number of inmates housed at any one
time in solitary confinement in the United States is unknown—but in 2005 it was a
number well over 80,000.24 That figure qualifies the United States as holding “far
more prisoners in solitary than any other democratic nation.”25
It was not always thus. The first experiments with long-term isolation in
the United States were associated with the idea that forcing an inmate into silence
and moral reflection would aid in rehabilitation and reformation of the prisoner.
Philadelphia opened Eastern State Penitentiary (or “Cherry Hill”) in 1826 using the
“silent system” where prisoners were forbidden to speak, kept alone in their cells,
and wore hoods over their heads during exercise. The Cherry Hill model was an
international sensation—inspiring similar models across the nation and the globe.26
But the fad did not last long. First, the prisons were extremely expensive
to maintain. Second, officials and visitors noted extensive mental health issues
among the populations of these new types of prisons. In the 1830s there were

20

Secure Housing Unit

21

Solitary Confinement Unit

22

Super-Maximum Security Confinement

23

See e.g. Solitary Confinement, Ken Strutin, August 10, 2010, LLRX.com,
http://www.llrx.com/features/solitaryconfinement.htm#_ftnref3; Juan E. Mendez, United Nations
Interim Report, Torture and other cruel, inhuman or degrading punishment, Aug. 5, 201; Testimony
of Craig Haney to Senate Hearing on Solitary Confinement, June 19, 2012,
http://www.judiciary.senate.gov/pdf/12-6-19HaneyTestimony.pdf.
24

According to a 2005 Bureau of Justice Statistics Census (the most recent data available) the
number of people held in solitary confinement was 81,622. But this number did not include detention
centers, Immigration and Customs Enforcement facilities, Bureau of Indian Affairs facilities, U.S.
Marshals Service facilities, military facilities, and facilities that house only juveniles. It included data
from all Federal facilities and 49 state facilities. See Additional Background and Statistics on
Prisoners in Segregation, Vera Institute of Justice, Statement Submitted to Senate Hearing on Solitary
Confinement,
http://www.judiciary.senate.gov/resources/transcripts/upload/061912RecordSubmission-Durbin.pdf;
Angela Browne, Alissa Cambier, Suzanne Agha, Prisons Within Prisons: The Use of Segregation in
the United States, 24 Fed’l Sentencing Reporter 46 (2011),
http://www.jstor.org/discover/10.1525/fsr.2011.24.1.46?uid=3739928&uid=2134&uid=2&uid=70&u
id=4&uid=3739256&sid=21102600112193.
25
Opening Statement of Senator Dick Durbin, Senate Hearing on Solitary Confinement, June 19,
2012, available at http://www.judiciary.senate.gov/pdf/12-6-19DurbinStatement.pdf.
26

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, 10 (2012).

9
reports of hallucinations, dementia, and monomania in Cherry Hill prisoners.27 A
prison that had adopted the Cherry Hill model in Britain reported “a very
extraordinary increase has taken place in the number of insane prisoners in the
prison” and recommended that inmates “should be placed together and have the
privilege of conversation.”28 Following an 1831 visit to a New York prison
experimenting with isolation, Alexis de Tocqueville wrote: “This absolute solitude,
if nothing interrupts it, is beyond the strength of man . . . . It does not reform, it
kills.”29
This combination of expense and disturbing mental health effects caused
“every state that tried the Pennsylvania model between 1830 and 1880 [to]
subsequently abandon[] it within a few years,” 30 except Cherry Hill itself that
continued its model until 1913. It seemed the United States had tried a failed
experiment and would not repeat it. Indeed, in 1890 the Supreme Court observed
society had found prolonged solitary confinement to be “too severe.”31 Speaking
of several states’ experiments with isolation of prisoners the Court explained:
But experience demonstrated that there were
serious objections to it. 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.32
Further evidence that made it seem prolonged solitary confinement was
permanently in the nation’s past included a 1939 prison psychiatric report
declaring the practice to be no longer adopted in any “civilized nation.” And the
27

Id. at 11.

28

Authorities from Milibank Prison in England, quoted in id.

29

Quoted in Ruth Marcus, The Cruelest Punishment, WASH. POST, Oct. 16, 2012.
http://articles.washingtonpost.com/2012-10-16/opinions/35501106_1_solitary-confinement-newyork-prison-adult-facilities.
30

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, 12 (2012).
31

In re Medley, 134 U.S. 160, 168, 10 S. Ct. 384, 386, 33 L. Ed. 835 (1890).

32

Id.

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American Correctional Association’s 1959 Manual of Correctional Standards
instructed that solitary confinement should only be used as a last resort, never last
more than 15 days, and usually a much shorter period would be sufficient. It also
stressed that even during these relatively short periods of isolation, prisoners must
be provided with group or individual therapy to safeguard mental health.33
Given prolonged solitary confinement’s dismal record, why did the United
States once again turn to its widespread use beginning in the 1980s? There were
four important and interrelated precursors: first, the explosive growth of the prison
population beginning in the late 1970s. In 1978 there were 307,276 inmates in
state and federal prisoners34—a number that had held relatively stable for fifty
years.35 By the end of 2012 that number was 1,571,013—an increase of over
500%.36 Add in the local jail figures, and the number increases to over 2.3 million
people.37 Thus, although the United States has only 5% of the world’s population,
it has 25% of the world’s prisoners. Those 2.3 million represent by far the most
prisoners per capita of any democratic nation in the world.38 In 2009 a study
reported that 1 in every 31 adults in the United States was in prison, on probation,
or on parole.39
Funding for larger prisons, more prisons, and more staff did not keep pace
with this dramatic increase in population.40 Prisons across the nation deal with
severe overcrowding issues. Federal facilities generally operate at 40% above
capacity, though high and medium security facilities operate at 55% and 51%

33

Richard A. McGee et al., Am. Correctional Ass’n, Manual of Correctional Standards, 246-47
quoted in Hafemeister & George n. 54.
34
Erica Goode, U.S. Prison Populations Decline, Reflecting New Approach to Crime, NY TIMES,
July 25, 2013, http://www.nytimes.com/2013/07/26/us/us-prison-populations-decline-reflecting-newapproach-to-crime.html?pagewanted=all.
35

See Hafemeister & George 13.

36

E. Ann Carson, Daniela Golinelli, Prisoners in 2012—Advance Counts, Bureau of Justice
Statistics, July 25, 2013, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4737. In 2009 that number
reached a high of 1,615, 487—the last several years have shown an overall decline. See id.
37

Todd Minton, Jail Inmates at Midyear 2012—Statistical Tables, Bureau of Justice Statistics, May
22, 2013, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4655.
38

See Opening Statement of Senator Dick Durbin, Senate Hearing on Solitary Confinement, June 19,
2012, http://www.judiciary.senate.gov/pdf/12-6-19DurbinStatement.pdf. [Insert cite for 5/25 stats].
39
Solomon Moore, Prison Spending Outpaces All but Medicaid, NY TIMES, March 2, 2009,
http://www.nytimes.com/2009/03/03/us/03prison.html.
40

Eric Schlosser, The Prison-Industrial Complex, 282 The Atlantic Monthly 51 (1998), http://
www.theatlantic.com/issues/98dec/prisons.htm cited in J.C. Oleson, The Punitive Coma, 90 Cal. L.
Rev. 829, 901 (2002).

11
above capacity respectively.41 States from coast to coast are also dealing with
severe overcrowding—most notoriously California that is currently being forced
by the U.S. Supreme Court to reduce its population to 137.5% of capacity.42
Another important precursor to the resurrection of prolonged isolation was
the widespread closing of mental health hospitals that began around the 1960s and
prompted the creation of a new term in the 1990s: “transinstitutionalization,”
meaning the transfer of mentally ill patients from state hospitals to jails.43
Currently, the three largest inpatient psychiatric facilities in the country are not
hospitals, but jails: Los Angeles County Jail, Rikers Island Jail in New York, and
Cook County Jail in Illinois.44 In 2012 one Chicago sheriff lamented that his jail
housed 2,000 mentally ill prisoners, while the largest state mental health facility
had only 582 beds—and he predicted the situation would soon get worse with the
city’s imminent plan to shut down 6 of its 12 mental health centers.45 A mentally
ill person is three times more likely to be incarcerated than hospitalized in the
United States.46 A 2006 Bureau of Justice Statistics report stated that 56% of state
prisoners, 45% of federal prisoners, and 64% of local jail inmates had mental
health problems.47 The rate of those with severe mental illness is less—in 2000 the
American Psychiatric Association estimated up to 20% of prisoners were severely
mentally ill and up to 5% were “actively psychotic at any given moment.”48

41

Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues and
Options, Congressional Research Service, Jan. 22, 2013,
http://www.fas.org/sgp/crs/misc/R42937.pdf.
42
See Adam Banner, Stitching Up a Paper Cut: Eric Holder Is “Fixing” a Federal Problem at the
Expense of the States, HUFF POST, Aug 15, 2013, available at http://www.huffingtonpost.com/adambanner/eric-holder-drug-policy_b_3758421.html.
43

Elizabeth Bennion, A Right to Remain Psychotic? A New Standard for Involuntary Treatment in
Light of Current Science, forthcoming in Loyola of Los Angeles Law Review,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2260469.
44

Nation’s Jails Struggle With Mentally Ill Prisoners, NPR, Sept. 4, 2011,
http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-mentally-ill-prisoners.
45

Bridge O’Shea, Psychiatric Patients With No Place to Go but Jail, NY TIMES, Feb. 18, 2012,
http://www.nytimes.com/2012/02/19/health/in-chicago-mental-health-patients-have-no-place-togo.html?ref=us&pagewanted=all.
46

Bennion, A Right to Remain Psychotic?, supra n.43.

47

Lauren E. Glaze, Doris J. James, Mental Health Problems of Prison and Jail Inmates, Bureau of
Justice Statistics, Sept. 6, 2006, http://www.bjs.gov/content/pub/press/mhppjipr.cfm.
48

Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates, A Brief History and
Review of the Literature, Crime and Justice, Vol. 34, No.1, 453 (2006).

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A third precursor was the 1970s surprisingly swift abandonment of “the
central justification for imprisonment—the pursuit of the rehabilitative ideal—that
had been in place for nearly a century.”49 During this period there was a flurry of
criticism of rehabilitation as a penal goal. Sociologist Robert Martinson was
among the most influential critics. He stated that “[w]ith few and isolated
exceptions, the rehabilitative efforts that have been reported so far have had no
appreciable effect on recidivism.”50
Despite the fact that Martinson later retracted, concluding his own
methodology had been flawed,51 his initial criticism helped spawn a “nothing
works” movement that “within a few short years [convinced] many penologists
and prison administrators across the country . . . [of] the stunning conclusion that
any attempt to facilitate positive change inside prison was fundamentally flawed
and doomed to fail.”52 Many politicians, scholars, and judges also joined this
bandwagon.53 They supported abandoning rehabilitation not only because of the
high rates of recidivism, but also because of concerns that rehabilitation could lead
to large discrepancies among sentences or indeterminate sentencing. There was
also the philosophical challenge of whether it was a defensible position to “lock[]
people up until they become better people.”54
When rehabilitation was swept aside, the predominant penal theories that
filled the void were incapacitation and retribution55—the latter re-named “justdeserts” for easier public consumption.56 “Prisons were no longer designed to
cure; they were intended to be aversive and unpleasant.”57 It was far easier to
49
Craig Haney, Demonizing the "Enemy": The Role of "Science" in Declaring the "War on
Prisoners", 9 Conn. Pub. Int. L.J. 185, 186 (2010).
50

Robert Martinson, What Works? Questions and Answers About Prison Reform, 35 Pub. Int. 22-54,
25 (1974) quoted in Craig Haney, Demonizing the "Enemy": The Role of "Science" in Declaring the
"War on Prisoners", 9 Conn. Pub. Int. L.J. 185, 209 (2010).
51

See Joseph Hallinan, Going Up the River, Random House, 2001.

52
Craig Haney, Demonizing the "Enemy": The Role of "Science" in Declaring the "War on
Prisoners", 9 Conn. Pub. Int. L.J. 185, 209-10 (2010). Some argue that wardens and commissioners
were not suddenly convinced that rehabilitation did not work, but a wave of retirements allowed a
new generation of leaders to assume control of prisons—leaders who had less understanding of
prisoners and rehabilitation. See, e.g., Daniel Glaser, Preparing Convicts for Law Abiding Lives,
State Univ. of NY, 1995.
53

See J.C. Oleson, The Punitive Coma, 90 Cal. L. Rev. 829, 841 (2002).

54

Graham Hughes, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose, 73 J.
Crim. L. & Criminology 1322, 1322-23 (1982) (book review).
55

Oleson, The Punitive Coma, 841 supra n.53.

56

See Ernest van den Haag, Punishment: Desert and Crime Control Past or Future Crimes:
Deservedness and Dangerousness in the Sentencing of Criminals. by Andrew Von Hirsch. New
Brunswick, N.J.: Rutgers University Press. 1985. Pp. Xiv, 220. $25., 85 Mich. L. Rev. 1250 (1987).
57

Oleson, The Punitive Coma, 841 supra n.53.

13
justify harsh conditions of solitary confinement if the predominant penal goal was
punishment and incapacitation rather than rehabilitation. Also the lack of
rehabilitation programs created a void of meaningful and productive activities for
the inmates and contributed to the final and most important precursor of the
resurgence of solitary confinement.
The final precursor was violence. Overcrowding, combined with an
extreme influx of mentally ill (who often have trouble regimenting their behavior
within the strict rules of a prison environment due to their illness) and an extreme
decrease in any rehabilitative programs (creating large-scale and unprecedented
idleness), provided for a dangerous dynamic in prisons.58 Solitary confinement
was the prison officials’ answer to an increasingly difficult-to-control, violent, and
gang-dominated prison population.59
Dr. Terry Kupers, a prominent expert on the effects of solitary
confinement, explained that:
[i]nstead of arriving at the obvious correct
conclusion . . . that the crowding and idleness
caused serious damage and needed to be
reversed . . . and educational and training
programs needed to be reinstituted and
strengthened, corrections authorities instead
opted to place the blame for the uncontrollable
violence on a new breed of prisoners, “super
predators,” and proceeded to place a growing
proportion of those they vilified as “the worst of
the worst” in round-the-clock solitary
confinement.60
The origin of the modern U.S. supermax facility—where “conditions
typically include solitary confinement twenty-three hours each day in a barren
environment”61—can be traced to particular events in October 1983. The location
58

See Craig Haney Testimony Before Senate Hearing at 4, June 19, 2012,
http://www.judiciary.senate.gov/pdf/12-6-19HaneyTestimony.pdf.
59

See Wilkinson v. Austin, 545 U.S. 209, 213 (2005).

60

Comments by Dr. Terry Kupers to the June 19, 2012 Hearing Before the Senate Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights: Reassessing Solitary
Confinement - The Human Rights, Fiscal, and Public Safety Consequences [statements before
congressional hearing at 417].
61

Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and
Review of the Literature, 34 Crime & Just. 441, 443 (2006).

14

BENNION

was the U.S. Penitentiary in Marion, Illinois, a maximum security prison that had
replaced the controversial prison at Alcatraz.62 Violence had been steadily rising at
the prison in recent years and culminated in the murders of two prison guards in
separate events on a single day.63 Four days later, an inmate was also found
murdered.64 Shortly thereafter, the warden declared a state of emergency and put
the entire prison on a 23-hour-a-day lockdown status. The lockdown was not
lifted—and thus a maximum security prison was transformed into the first
“supermax.”65
Prolonged solitary confinement became known as the “Marion Model,”
and both the federal government and many states built their own supermax
facilities in the years that followed.66 By 2004, a study reported that forty-four
states had supermaxes housing approximately 25,000 inmates67 (a sizable
percentage of the 80,000 plus inmates in solitary confinement throughout U.S.).68
“Few if any rehabilitation or education programs exist in supermaxes.”69
Although conditions and definitions vary among supermax facilities, over
95% of state prison wardens agreed with the following definition:
A supermax is a stand-alone unit or part of
another facility and is designated for violent or
disruptive inmates. It typically involves up to
23–hour–per-day, single-cell confinement for an
indefinite period of time. Inmates in supermax

62

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, 489 (1997).
63
Scott N. Tachiki, Indeterminate Sentences in Supermax Prisons Based Upon Alleged Gang
Affiliations: A Reexamination of Procedural Protection and A Proposal for Greater Procedural
Requirements, 83 Cal. L. Rev. 1115, 1122 (1995).
64

Gertrude Strassburger, 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, 202 (2001).
65
Scott N. Tachiki, Indeterminate Sentences, 1122, supra n.63. However, this particular institution
no longer functions as a supermax facility. It was downgraded in 2006 to medium-security.
66

Gertrude Strassburger, 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, 202 (2001).
67

Daniel P. Mears, Evaluating the Effectiveness of Supermax Prisons, Urban Institute Justice Policy
Center, ii, Mar. 2006, http://www.urban.org/uploadedPDF/411326_supermax_prisons.pdf.
68
See Vera Institute of Justice record testimony for Senate Hearing,
http://www.judiciary.senate.gov/resources/transcripts/upload/061912RecordSubmission-Durbin.pdf.

Terry A. Kupers, Isolated Confinement: Effective Method for Behavior Change or Punishment for
Punishment’s Sake? The Routledge Handbook of International Crime and Justice Studies, Eds. Bruce
Arrigo & Heather Bersot, Oxford: Routledge, 2013, pp. 213-232, Chap. 10.
69

15
housing have minimal contact with staff and
other inmates.70
Again, over 95% of state wardens agreed that the primary goals of supermax
prisons include “increasing safety, order, and control throughout prison systems
and incapacitating violent or disruptive inmates.”71 There was much less
consensus on other potential goals.72
Supermax prisons are generally two-to-three times more expensive to
build and operate than traditional maximums security prisons. Each one represents
“close to [a] … billion [dollar] investment over 30 to 40 years, the typical life span
of a prison.”73 A 2009 Pew study examining state and federal data found that
criminal correction spending outpaced budget growth in all areas but Medicaid,
which had quadrupled in the past two decades.74
While isolation units (whether in supermaxes or elsewhere) are often
advertised as housing only the “worst of the worst,” the reality is quite different.75
Prisoners in solitary confinement are generally housed there for one of three
purposes: (1) to protect that individual from threats they would be subject to in the
general population (children in adult prisons are among those who may fall in this
category76); (2) to punish noncompliance with prison rules; or (3) to control
individuals perceived as a current or future threat.77 In most isolation units, those
with serious records of violence in the prison itself “are the exception rather than
70

Daniel P. Mears, Evaluating the Effectiveness of Supermax Prisons, Urban Institute Justice Policy
Center, ii, Mar. 2006, http://www.urban.org/uploadedPDF/411326_supermax_prisons.pdf.
71

Id.

72

See id. (“There is less agreement about whether they improve inmate behavior throughout prison
systems; decrease riots, the influence of gangs, or escapes; successfully punish, reduce the recidivism
of, or rehabilitate violent or disruptive inmates; or deter crime in society.”)
73

Id. at ii, 46.

74

Solomon Moore, Prison Spending Outpaces All but Medicaid, NY TIMES, March 2, 2009,
http://www.nytimes.com/2009/03/03/us/03prison.html.
75
See, e.g., 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, 45 (2012).
76

See Growing Up Locked Down, Human Rights Watch, 2, Oct. 4, 2012,
http://www.hrw.org/node/110545/section/1.
77
Hope Metcalf, et. Al, Administrative Segregation, Degrees of Isolation, and Incarceration: A
National Overview of State and Federal Correctional Policies, A Project of the Liman Public Interest
Program at Yale Law School, June 2012,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861.

16

BENNION
78

the rule.” Many are housed there for an unacceptable number of minor rule
violations or for suspected gang membership. The allegation of gang membership
may result in indefinite solitary confinement—even when “the prisoners in
question may not have engaged in any overt rule violations other than their alleged
connection to the gang, and may remain entirely free of disciplinary write-ups
during the many years of their indefinite isolation.”79
A highly disproportionate number of those in solitary confinement are
severely mentally ill. Many of the symptoms of severe mental illness can make it
difficult to conform to the highly regimented rules and procedures of the prison
environment, thus prison officials “often treat disordered behavior as disorderly
behavior.”80 This may happen even with minor infractions, for many of the state
and federal policies regarding who may be placed in solitary are extremely vague
and open-ended—for example, one state’s policies allowed solitary confinement if
the inmate was “unpredictable” or “difficult to manage in other prison settings.”81
One former prisoner “recalled being put in solitary confinement for petty
annoyances like refusing to get out of the shower quickly enough.”82 Thus,
imposition of solitary confinement is ultimately at the discretion of prison
administrators and may be for days, weeks, months, years, or decades—and is
often simply indefinite.
While it is difficult to provide a precise definition of modern solitary
confinement in the United States because of the varying conditions across the
nation, there are some general trends. Inmates are generally confined alone in cells
that range in dimension from 60 to 80 square feet for approximately 23 hours-aday.83 They generally contain a bunk, a toilet, and a sink and ventilation is often
substandard.84 Exercise is usually limited to one hour a day alone in often small
barren exercise rooms. Prisoners “are [often] kept under constant surveillance with
computerized locking and tracking systems used to allow their movement to be

78

Craig Haney Testimony for Senate Hearing at 7, http://www.judiciary.senate.gov/pdf/12-619HaneyTestimony.pdf.
79

Id.

80

Hafemeister, Ninth Circle, at 20-21 (internal quotations omitted).

81

Id. at 21; see also, e.g., Hope Metcalf et al., Administrative Segregation, Degrees of Isolation, and
Incarceration: A National Overview of State and Federal Correctional Policies, A Project of the
Liman Public Interest Program at Yale Law School, June 2012 at 5-10,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861.
82

Quoted in Atul Gawande, Hellhole, NEW YORKER, Mar. 30, 2009,
http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande.
83
Craig Haney Senate Testimony at 4, http://www.judiciary.senate.gov/pdf/12-619HaneyTestimony.pdf.
84

Id.

17
regulated with a minimum of human interaction.”85 Contact visits are generally
prohibited as are all work, rehabilitation, or other activities and programs.86 If
mental health treatment is provided, it may be through the small portal at their cell
front.87 “The norm is to impose, to the fullest extent possible, complete sensory
deprivation and social isolation.”88

III.
EFFECTS OF ISOLATION AND SENSORY DEPRIVATION ON THE BRAIN, BODY
AND BEHAVIOR
It’s an awful thing, solitary. . . . . It crushes
your spirit and weakens your resistance more
than any other form of mistreatment.”89
(Senator John McCain, who spent more than
two years in isolation in a fifteen-by-fifteen cell
during his five and a half years as a prisoner of
war in Vietnam.)
Senator John McCain’s assertion that solitary is the worst form of
mistreatment came “from a man who was beaten regularly; denied adequate
medical treatment for two broken arms, a broken leg, and chronic dysentery; and
tortured to the point of having an arm broken again.”90 A study of one group of
former Vietnam war prisoners also “reported that they found isolation to be as
tortuous and agonizing as any physical abuse they suffered”—and many had
suffered worse physical abuse than Senator McCain. 91
Terry Anderson, an Associate Press reporter who was held hostage for
seven years by Hezbollah in Lebanon, explained that when he was housed with
other hostages his ability to concentrate, to read, to avoid hallucinations, and to
control his emotions were all improved. But when he was imprisoned for
85

Hafemeister, Ninth Circle, at 7 (internal quotations omitted).

86

Haney Senate Testimony at 5; Hafemeister, Ninth Circle, at 7.

87

Hafemeister, Ninth Circle, at 7.

88

Id.

89

Gawande supra n.82.

90

Id.

91

Id.

18

BENNION

indefinite periods alone he could feel his mind disintegrating, his sleep patterns
changed, he became neurotically possessive, emotionally unstable, and his ability
to concentrate, remember, or process information were all severely limited. He
would sometimes physically tremble without cause and begin to fear that he would
lose his mind and all control. After three years of captivity he did lose control and
began beating his head against a wall—his head was smashed and bleeding by the
time guards stopped his sudden self-violence.92
Another hostage who had been a private school director was placed in
solitary confinement for four months before being housed with Anderson. The
director had become severely withdrawn—lying for hours facing a wall in a semicatatonic state. He seemed unable to follow even simple instructions from the
guards, which resulted in the guards often becoming abusive with him. Upon his
release after three and a half years he had to be placed in a psychiatric hospital.
These examples illustrate what studies show—that solitary confinement is
dangerous to the mental health of all individuals, whether previous mental health
issues existed or not (though previous vulnerabilities increase the risk). “[W]hen
inmates are subjected to extensive cell confinement and deprivation of activities
and stimulation, a majority can be expected to report moderate to serious
psychological conditions.”93 Add isolation to the mix and the prevalence rates
grow even higher.94 Why would simply leaving someone alone in a confined space
for a prolonged period equate to a form of torture for these prisoners?
The answer at least partially lies in the nature of the human brain. When
compared to the brains of other animals, humans have a much larger brain relative
to body size. The best predictor of brain size in the animal kingdom is the size of
its social group. In other words, “[w]e have big brains in order to socialize.”95
Neuroscientists have discovered that when the brain is not involved in an
active task it automatically falls into a neural configuration named the “default
network,” which is almost identical to the brain configuration used for social
thinking. One neuroscientist explained that the primary purpose of the brain seems
92

Id. citing TERRY ANDERSON, DEN OF LIONS, (Ballantine Books) 1993.

93

Haney, Issues in Solitary Supermax Confinement 2003, 135 (internal quotations omitted).

94

See id. at 137 (observing that prisoners in isolation had an average of 14.5% higher prevalence for
damaging psychological symptoms than the already high rates for those in protective housing who
had limited access to activities and stimulation). One scholar doing a survey of the associated
literature stated that “[r]esearch suggests that between one-third and more than ninety percent
experience adverse symptoms in solitary confinement, and a significant amount of this suffering is
caused or worsened by solitary confinement.” Peter Scharff Smith, The Effects of Solitary
Confinement On Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441,
502 (2006).
95

Emily Esfahani Smith, Social Connection Makes a Better Brain, THE ATLANTIC, Oct. 29, 2013,
http://www.theatlantic.com/health/archive/2013/10/social-connection-makes-a-better-brain/280934/.

19
to be social thinking: “[e]volution has made a bet that the best thing for our brain to
do in any spare moment is to get ready for what comes next in social terms.”96
Neuropsychologists have also called the brain an “infovore,” as in
constantly craving new information sought through the senses. The natural world
to which the brain is accustomed is one of rich sensory stimulation. One theory is
that it is human nature to love learning because novel, interpretable stimuli cause
significant neural activity in the temporal lobe producing greater endorphins.97
Thus, social thinking and sensory interpretation are fundamental brain
activities on which a healthy brain thrives. But what exactly happens to brain,
body, and behavior when a person is deprived of opportunities to have meaningful
social connections or a sensory rich environment? Scientists are currently seeking
answers to those questions. For example, recent studies have noted that perceived
social isolation (loneliness) is associated with decreased activity in regions of the
brain associated with empathy, learning, and rewards;98 is linked to an increased
risk of dementia in later life;99 may impact sleep patterns; 100 and is associated with
lower rates of physical and mental health.101 It has also long been established that
if all sight, sound, and tactile sensations are eliminated, people may enter a
hallucinatory state in as little as 48 hours.102
Social isolation is as strong a risk factor for morbidity and mortality as is
smoking, obesity, sedentary lifestyle, and high blood pressure. When this was first
96

Id.

97

See NASA report at 20 (2011); Otto, South Pole Station: An Analogue for Human Performance
During Long Duration Missions to Isolated and Confined Environments, 2007; Irving Biederman and
Edward Vessel, Perceptual Pleasure and the Brain, AMERICAN SCIENTIST, 2006,
http://www.americanscientist.org/issues/feature/perceptual-pleasure-and-the-brain.
98
John Cacioppo, et al., In the Eye of the Beholder: Individual Differences in Perceived Social
Isolation Predict Regional Brain Activation to Social Stimuli, J. of Cognitive Neuroscience, Feb.
2009.
99

Tjalling Jan Holwerda, Dorly J H Deeg, Aartjan T F Beekman, Theo G Van Tilburg, Max L Stek,
Cees Jonker, Robert Schoevers. Feelings of loneliness, but not social isolation, predict dementia
onset: results from the Amsterdam Study of the Elderly (AMSTEL), J.of Neurology Neurosurgery
and Psychiatry, 2012 DOI: 10.1136/jnnp-2012-302755.
100

Lianne Kurina et al., Loneliness Is Associated with Sleep Fragmentation in a Communal Society.
Sleep, 2011; DOI: 10.5665/sleep.1390.
101
Erin York Cornwell and Linda J. Waite, Social Disconnectedness, Perceived Isolation, and Health
among Older Adults, J Health Soc. Behav. 2009 March; 50(1): 31–48.
102

Jeffrey Smith McLeod, Anxiety, Despair, and the Maddening Isolation of Solitary Confinement:
Invoking the First Amendment's Protection Against State Action That Invades the Sphere of the
Intellect and Spirit, 70 U. Pitt. L. Rev. 647, 676 (2009).

20

BENNION

discovered it spawned the “social control hypothesis,” the assumption that this was
due to external pressures from the social network to have better health behaviors.
However, more recent studies have caused scientists to reject this theory as
insufficient to explain the wide variety of harms that occur in an isolation
environment.103
This section examines the evidence regarding social isolation and sensory
deprivation’s effects by surveying modern prisoner studies and studies of such
deprivations in other contexts.
A. MODERN PRISONER STUDIES
There are inherent difficulties with performing studies on prisoner
populations, especially ones housed in solitary confinement. Most obviously there
is the problem of access. But even if that hurdle is surmounted, if one is studying
the effects of isolation on brain, body, and behavior, then the very contact with the
prisoner is changing the condition (isolation) whose effect one is trying to
measure. This phenomenon of modified behavior due to being the subject of a
study is commonly known as the “Hawthorne Effect.” Researchers in one prisoner
isolation study renamed it the “Alyusha Effect” after the attractive young woman
who interviewed the prisoners—two of whom were dropped from the study
because of sexual advances.104
Other problems can include how to make certain your population is
representative when the sample size is often necessarily small (due to access
issues) and how to provide for a control group. Some experts believe the
vulnerability and lack of freedom of prisoners makes them incapable of giving
truly informed consent. Thus studies of prisoners are often subject to heightened
scrutiny from institutional review boards. The vulnerable position of prisoners
may also make them hesitant to share any information that might be used against
them in critical decisions such as parole or whether solitary confinement should be
further prolonged.105
However, even with these challenges, the large majority of the modern
research on prisoners in solitary confinement is remarkably consistent in its
103
John T. Cacioppo, et al., Social Isolation, Ann N Y Acad Sci. 2011 August; 1231(1): 17–22,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3166409/.
104

See Susan Greene, Questioning study that showed inmates in solitary get better, DENVER POST,
http://www.denverpost.com/greene/ci_16545619. The study itself that was funded by the National
Institute of Justice (Maureen L. O’Keefe, et al., One Year Longitudinal Study of the Psychological
Effects of Administrative Segregation, Oct. 31, 2010) and is available at:
http://www.denverpost.com/greene/ci_16545619.
105

See Philip Bulman, The Psychological Effects of Solitary Confinement, NIJ Update, Corrections
Today (June/July 2012).

21
findings of deleterious psychological effects.106 Among the conclusions of various
studies are the following insights:
•

In the United States nearly half of prison suicides occur in solitary
confinement even though estimates of the percentage of those in solitary
confinement is between 2-8%.107

106

There is however one relatively recent study in Colorado that concluded solitary confinement may
not be harmful to prisoners. But that study has been severely criticized on multiple grounds. For
example, it was the study that had the “Alyusha Effect” described above, it was made in preparation
for potential litigation against the prison system, it relied on self-reporting—there was no
independent analysis of clinical records or examination by professional psychiatrist—thus there was
no check on motivations of prisoners to not reveal information that could be harmful to their own
status. Critics questioned whether the study used a proper measure (adaptation), objected to how the
study population was chosen, and charged that the researchers ignored vital data even after flaws
were pointed out to them. There were records available that documented incidents of emergency
psychiatric contact such as suicidal and self-destructive behavior and emergence of psychotic
symptoms. Critics explained that:
Among the group of inmates with mental illness in Ad Seg
(N=59) there were 37 such episodes during the course of
the study (an average of .62 episodes per inmate—almost
two for every three inmates). Among the group of inmates
with mental illness in [the general population] (N=33), on
the other hand, there were only three (0.9 per inmate—less
than one for every 10 inmates). . . . [T]his objective data
squarely contradicts the authors’ conclusion that Ad Seg
does not produce significantly more psychiatric difficulties
than does [general population] housing. The authors
simply declined to perform this straightforward statistical
analysis of data they actually reported, even after the
oversight in their early public reports was explicitly pointed
out by Dr. Grassian.
See Stuart Grassian and Terry Kupers, The Colorado Study vs. the Reality of Supermax
Confinement, Correctional Mental Health Report, Vol. 13, No. 1 (May/June 2011) 1-4(8). As critics
of the Colorado study, Dr. Grassian and Dr. Kupers, explain, the statistical probability of this
difference being entirely random is approximately 1 in 5,000, whereas statistical significance in
research generally requires only a probability of randomness of .05 or 1 in 20. Dr. Grassian also
suggested that the researchers compare the self-reported psychiatric rating during the period of the
psychiatric emergency to evaluate whether they were indeed getting trustworthy reports from the
inmates but the authors declined. One of the inmates under the study committed suicide and
researchers did examine that inmate’s most recent self-report and found it revealed no evidence of
any psychological distress.
107

See Stuart Grassian and Terry Kupers, The Colorado Study vs. the Reality of Supermax
Confinement, Correctional Mental Health Report, Vol. 13, No. 1 (May/June 2011) 1-4(1, 5); Virginia
takes a stand against solitary confinement, WASH. POST, Sept. 11, 2013,
http://www.washingtonpost.com/opinions/virginia-takes-a-stand-against-solitaryconfinement/2013/09/11/68903520-1733-11e3-804bd3a1a3a18f2c_story.html?utm_content=buffer22d97&utm_source=buffer&utm_medium=twitter&ut

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•

“Strikingly consistent” psychiatric symptoms among inmates in isolation
included: hyperresponsitivity to external stimuli; perceptual distortions,
illusions and hallucinations; severe panic attacks; difficulty with thinking,
concentration and memory; intrusive obsessional (and often violent)
thoughts that prisoners resist but cannot block out; overt paranoia; and
problems with impulse control.108 One study of prisoners in Pelican Bay’s
isolation units found 91% suffering from heightened anxiety, 86% having
hyper-responsitivity to external stimuli, 84% having difficulty with
concentration and memory, 84% having confused thought processes, 71%
experiencing wide mood and emotional swings, 61% having aggressive
fantasies, 44% suffering visual distortions, and 41% experiencing
hallucinations. More than half (56%) of prisoners experienced at least five
of these symptoms, and 34% experienced all eight.109

•

Those in one study of solitary confinement developed psychopathologies
at a rate of 28% versus 15% in the general population.110 A study of
Danish prisoners found that prisoners who remained in solitary
confinement for longer than four weeks had a “probability of being
admitted to the prison hospital for a psychiatric reason [that] was about 20
times as high as for a person” in the general population.111

•

A week of voluntary solitary confinement by prisoners resulted in
decreased EEG [electroencephalogram] activity, which is indicative of
increased theta activity, which, in turn, is related to stress, tension, and

m_campaign=Buffer. According to a recent GAO study the federal government houses 7% of its
217,000 inmates in segregated housing units 23 hours a day. This is a 17% increase from 2008 to
2013 despite the fact that the total inmate population grew by only 6% in the same period. United
States Government Accountability Office, Report to Congressional Requesters, Bureau of Prisons:
Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated
Housing, May 2013, http://www.gao.gov/assets/660/654349.pdf.
108
Stuart Grassian, Psychiatric Effects of Solitary Confinement, J. of Law and Policy, Vol. 22, 33536 (2006). See also Bruno M. Cormier & Paul J. Williams, Excessive Deprivation of Liberty, 11
Can. Psych. Ass'n. J. 470 (1966) (finding three consistent patterns of behavior among isolated
inmates: verbal aggression, physical destruction of surroundings, and development of inner fantasy
world including paranoid psychosis—also general uncontrolled rage and an increase in homicidal and
suicidal impulses); Hans Toch, Mosaic of Despair: Human Breakdowns in Prisons (1992) (noting
broad scale “isolation panic” that included rage, panic, loss of control, breakdowns, psychological
regression, and physiological and psychic tension that led to self-mutilation).
109

Craig Haney, Mental Health Issues in Long-Term Solitary and Supermax Confinement, Crime &
Delinquency vol. 49 no. 1, 137, Jan. 2003.
110
Andersen, H.S. Sestoft, et al., A Longitudinal Study of Prisoners on Remand: Psychiatric
Prevalence, Incidence and Psychopathology in Solitary vs. Non-Solitary Confinement, Acta
Psychiatrica Scandinavica, 102(1), 19 (2000).
111

Craig Haney, Mental Health Issues in Long-Term Solitary and Supermax Confinement, Crime &
Delinquency vol. 49 no. 1, 144, Jan. 2003.

23
anxiety.112 “Indeed, even a few days of solitary confinement will
predictably shift the [EEG] pattern toward an abnormal pattern
characteristic of stupor and delirium.”113
•

Prisoners in solitary confinement engage in higher rates of self-mutilation
than in the general population.114

•

For some prisoners, the prolonged isolation’s interference with social
identity causes them to experience a profound “ontological insecurity” or
doubts about their own existence. 115

•

While some of the acute symptoms tend to subside after release from
isolation, there are long-term effects that may persist for decades. “These
not only include persistent symptoms of post-traumatic stress (such as
flashbacks, chronic hypervigilance, and a pervasive sense of
hopelessness), but also lasting personality changes—especially including a
continuing pattern of intolerance of social interaction, leaving the
individual socially impoverished and withdrawn, subtly angry and fearful
when forced into social interaction.”116

112

Gendreau, P., Freedman, N. and Wilde, G. Changes in EEG Alpha Frequency and Evoked
Response Latency During Solitary Confinement, Journal of Abnormal Psych. 79, 54, 57-58 (1972).
113
Stuart Grassian, Psychiatric Effects of Solitary Confinement, Journal of Law and Policy, Vol. 22,
331 (2006).
114
Craig Haney, et al. Regulating Prisons of the Future: A Psychological Analysis of Supermax and
Solitary Confinement, New York U. Review of Law and Social Change 23: 477-570 (1997).
115

As one scholar testified before a senate hearing in 2012:
The emptiness and idleness that pervade most solitary
confinement units are profound and enveloping. The prison
typically provides the prisoners in these units with literally
nothing meaningful to do. That emptiness, when combined
with the total lack of meaningful social contact, has led
some prisoners into a profound level of what might be
called “ontological insecurity”—they are not sure that they
exist and, if they do, exactly who they are. A number of
prisoners have told me over the years that they actually
have precipitated confrontations with prison staff members
(that sometimes result in brutal “cell extractions”) in order
to reaffirm their existence.”

Haney Senate Testimony at 6 (emphases added).
116

Stuart Grassian, Psychiatric Effects of Solitary Confinement, Journal of Law and Policy, Vol. 22,
353 (2006).

24

BENNION

B. BRAIN & BEHAVIOR STUDIES OUTSIDE THE MODERN PRISON
Isolation and sensory deprivation are serious issues for several groups
outside the modern domestic prison context—including pilots, astronauts, Arctic
and Antarctic explorers, prisoners of war, and shipwrecked sailors. These groups
have reported “deterioration in the ability to think and reason, perceptual
distortions, gross disturbances in feeling states, and vivid imagery in the form of
hallucinations and delusions.”117 Studies of other social animals placed in isolation
or sensory deprivation environments also support the thesis that these conditions
themselves are a cause of severe psychological and physical harm. Examples are
explored in more detail below.
Extreme Exploration
A recent report for NASA on sensory deprivation concluded that “[t]he
prolonged stress consequences of sensory deprivation lead to detrimental
neurological changes in the human brain, which can manifest in maladaptive
behavior disorders.”118 And “increased duration increases the intensity and
likelihood” of such behaviors.119
The report explains that substituting an unchanging monotonous
environment (such as a space craft or a prison cell) for earth’s natural environment
deprives the sensory organs of normal levels of stimulation. The brain interprets
the sensory deprivation as stress and one of the body’s responses is to elevate
cortisol levels. If sensory deprivation is prolonged, chronic stress may occur.
“Under chronic stress, spatial and verbal memory and cognitive processes suffer.
Excessive levels of cortisol interfere with memory formation and retrieval . . . .
Behavioral effects include an increase in anxiety, paranoia, withdrawal and
territorial behavior.”120 Sensory deprivation also “reduces brain activity and
weakens neuromodularity control. This results in negative brain plasticity
processes, which create a self-reinforcing downward spiral of degraded brain
function.”121
Prolonged stress exposure of this type may place a person “at significant
risk for future psychiatric deterioration, possibly including the development of
117

DIANA ARIAS & CHRISTIAN OTTO, DEFINING THE SCOPE OF SENSORY DEPRIVATION FOR LONG
DURATION SPACE MISSIONS, NASA, 8 (2011), (Hereafter NASA Report),
http://science.gov/scigov/link.html?type=RESULT&redirectUrl=http://ntrs.nasa.gov/archive/nasa/cas
i.ntrs.nasa.gov/20110014527_2011015154.pdf.
118

Id. at 2.

119

Id. at 11.

120

Id. at 38.

121

Id.at 40.

25
irreversible psychiatric symptoms.”122 The report cites examples of prisoners of
war who, even forty years after release, may continue to suffer “symptoms of
anxiety, confusion, depression, suspiciousness and detachment from social
interactions.”123 People who have been in prolonged isolation and confined
environments often suffer from symptoms that resemble post-traumatic stress
disorder—including “anxiety, nervousness, frequent nightmares, depression,
difficulty sleeping, inability to work, and difficulty trusting people, as well as
difficulties adapting to the world outside of confinement.”124
A study of British Royal Air Force pilots who had experienced restricted
auditory and visual stimulation in flight found that all had become significantly
anxious, “many suffered full-blown panic attacks,” and some described “feelings
of detachment from reality and perceptual distortions.”125 A similar study of U.S.
Navy pilots found that “over one third experienced frightening feelings of unreality
and became severely anxious” when flying alone at high altitude where there is a
lack of visual and sensory stimulation.126
A study of astronauts revealed that “[m]onotonous surroundings were
found to lead to boredom, fatigue and reduction in job interest, physical
anesthetization, as well as the emergence of psychic disorders and altered
behavior.”127 In response to such concerns, the former Soviet Union was among
those that placed astronauts in “psychological relief rooms” for ten minute sessions
where they were surrounded by natural sounds and music, film, and odors that
mimicked the effect of being surrounded by nature and provided “relief for visual
fatigue and nervous emotional loads.”128 Ground based studies found that use of
these rooms increased work production by 1.5 times and errors were reduced by
25%.129
Individual reactions to isolation and sensory deprivation can vary widely.
A recent experiment conducted by the Russian Academy of Science in conjunction
with the European and Chinese space agencies placed a six-man crew in a
122

NASA Report at 41.

123

Id. at 43.

124

Id. at 42.

125

Stuart Grassian, Psychiatric Effects of Solitary Confinement, Journal of Law and Policy 356,
2006.
126

Id. at 357.

127

NASA Report at 23.

128

Id. at 24.

129

Id.

26

BENNION

simulated space ship for 520 days. Even with participants who were heavily
screened for strong physical and mental strength and stamina, there were
significant issues. One of the scientists involved explained that “[o]ur major
finding was there were really large individual differences with how the crew
responded to the [small group] isolation. . . . . Four of them showed at least one
issue that could have exploded or led to severe adverse effect during a Mars
mission.”130 Reactions included trouble sleeping, lethargy, problems with mental
tasks, mood swings, and depression.
For explorers and workers in the Arctic and Antarctic, the extremely harsh
conditions can cause small groups to be isolated and confined over long periods.
Winters last up to nine months with temperatures so cold (-100F) that venturing
outside is dangerous. Because of the prevalence of psychological disturbances
during these months, rigorous psychological screening is given beforehand. But
significant levels of psychiatric disturbances continue despite these efforts.
Common issues are interpersonal tension and hostility, progressively worsening
depression, sleep disturbance, impaired cognitive functioning, and paranoia.131
Thus isolation and sensory deprivation can have serious consequences in a
variety of settings and detrimental psychiatric consequences may persist even
when small groups are confined together. It is also very difficult to determine who
will fare best in such conditions beforehand—even those that seem strongest
(screened astronauts and arctic explorers for instance) may suffer severe
psychiatric deterioration.
Effects of Isolation on Other Social Animals
“Animal studies of social isolation are an important complement to human
studies because randomization and experimental manipulations of isolation in
humans are limited in intensity and duration by the possible damaging effects.”132
Many studies of other social animals confirm the negative harmful effects of social
isolation across species.
Some of the most dramatic studies on the isolation of animals was done
with rhesus monkeys. Monkeys raised in isolation were “profoundly disturbed,
given to staring blankly and rocking in place for long periods, circling their cages
130

Adam Mann, Future Mars Astronauts May Be Sleepy, Bored, and Crabby, Wired, Jan. 7, 2013;
see also Mathias Basner, et al., Mars 520-d mission simulation reveals protracted crew hypokinesis
and alterations of sleep duration and timing, Proceedings of the National Academy of Sciences of the
United States, Jan. 7, 2013, http://www.pnas.org/content/early/2013/01/02/1212646110.
131

Stuart Grassian, Psychiatric Effects of Solitary Confinement, Journal of Law & Policy, Vol. 22:
358-359 (2006). These symptoms have been named the “winter-over syndrome.” Id.
132

John T. Cacioppo, et al., Social Isolation, Ann N Y Acad. Sci. 2011 August; 1231(1): 17–22,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3166409/.

27
repetitively, and mutilating themselves.”133 If released into a group they seemed to
enter a state of emotional shock and would engage in self-clutching and rocking.
One refused to eat and died within five days. Some of those that had been isolated
for shorter periods were eventually able to adjust, but “[t]welve months of isolation
almost obliterated the animals socially.”134 Such animals were permanently
withdrawn and often abused by the larger group.135 More recent studies on other
animal groups have confirmed that the workings of the brain seem to be
particularly vulnerable to permanent alteration if animals are socially isolated in
early life.136
This insight extends to humans. Juveniles are currently often placed in
isolation in adult jails for their own protection. But the destructive nature of
isolation on a young brain is evidenced in the suicide rates. In juvenile facilities
over 50% of suicides occur in solitary confinement. In adult jails the statistics are
much higher. “Suicides of youth in isolation occur nineteen times more often than
in the general population; youth suicide rates are thirty-six times higher in adult
jails than in juvenile detention facilities.”137
Other studies have shown multiple physically and psychologically
damaging effects from isolation of animals more generally—for example, chronic
social isolation of Wistar rats caused anxiety-like and depression-like behavior that
paralleled molecular changes in the limbic brain;138 social isolation decreased the
lifespan of fruit flies because of oxidative stress; decreased survival after
experimentally induced strokes in mice; increased obesity and type two diabetes in
mice; increased the growth of cancerous tumors in rats; increased stress hormone
levels and oxidative stress in rabbits; and caused an elevated morning rise in
cortisol in squirrel monkeys.139

133

Gawande, supra n.82.

134

Id.

135

Id.

136

See, e.g., Jodi L. Lukkes, Early life social isolation alters corticotropin-releasing factor responses
in adult rats, Neuroscience. 2009 January 23; 158(2): 845–855.,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2649710/.
137

ACLU at 5, Statements for congressional Hearing 34.

138

Djordjevic J., et al., Effects of Chronic Isolation on Wistar Rat Behavior and Brain Plasticity
Markers, Neuropsychobiology, 2012, http://www.karger.com/Article/Fulltext/338605.
139

John T. Cacioppo, et al., Social Neuroscience: How a Multidisciplinary Field is Uncovering the
Biology of Human Interactions, Cerebrum. 2011 Nov-Dec; 2011: 17.,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3574807/.

28

BENNION

Commenting on the relationship between such animal studies and the
human experience, John Cacioppo, the director of the University of Chicago’s
Center for Cognitive and Social Neuroscience explained:
The effects of isolation in humans have much in
common with the effects of isolation found in
nonhuman social species. Researchers found
increased activation of the brain’s stress
systems, vascular resistance, and blood pressure,
as well as decreased inflammatory control,
immunity, sleep salubrity, and expression of
genes regulating glucocorticoid responses and
oxidative stress. In sum, the health, life, and
genetic legacy of members of most social
species are threatened when they find
themselves on the social perimeter.140
One of Cacioppo’s most influential insights is that these types of effects
are more strongly linked to perceived isolation than actual isolation. One of his
explanations for the great diversity we see in people’s responses to isolation is that
different people have different levels of tolerance for social disconnection—some
feel the pain of such disconnection more intensely than others. He argues that
people such as arctic explorers are self-selected to be those who have higher
thresholds for social disconnection.141
Cacioppo also claims one’s susceptibility to loneliness is approximately
50% hereditable. He bases the hereditable theory partially on an experiment that
was conducted with rat pups—selectively bred for 25 generations dependent on the
strength of their maternal cry. The descendants of those with the strongest cry
(who seemed to feel the pain of deprivation from their mother most greatly) had
greater cortisol, more depressive behavior, more withdrawal, and more anxiety
than the descendants of the softer crying pups. All these attributes and behaviors
are mimicked in people who have high levels of perceived isolation.142
***
Thus the evidence regarding reactions to isolation and sensory deprivation
among the general populace, prisoners, extreme explorers, and animals all point in
one direction but through multiple avenues. It is clear these deprivations can cause
severe harms. The lesson of the emerging field of social neuroscience is that the
behavioral deteriorations witnessed are linked to physical alterations occurring in
140

Id.

141

John T. Cacioppo, Social Isolation and Health, the Matilda White Riley Lecture, June 2, 2012,
http://www.youtube.com/watch?v=xULDuo7wv3k.
142

Id.

29
the brain and body that are in turn caused by the social and sensory deprivations.
These physical alterations have implications beyond the immediately visible
behaviors—and can lead to a wide variety of types of physical and mental
disability and disease.
It is difficult (if not presently impossible) to determine precisely which
harms will befall which people with what level of severity and how soon. Severely
debilitating harms befall significant portions of the population even among those
that have been heavily screened for resilience. While not every person may feel
the pain of social disconnection and sensory deprivation to the same degree, all are
at risk of serious health consequences when so deprived. As explained previously,
recent discoveries have clarified that human brains are uniquely designed for social
interaction. The many examples of deterioration examined above illustrate that
social interaction and sensory stimulation are human necessities for health and
well-being.
With this understanding of the threatened harms, the Article turns to how
to analyze such risks of harm under an Eighth Amendment framework.

IV.
CRUEL AND UNUSUAL PUNISHMENT IN THE CONTEXT OF PRISON CONDITIONS
Public apathy and the political powerlessness of
inmates have contributed to the pervasive
neglect of the prisons. . . . Under these
circumstances the courts have emerged as a
critical force behind efforts to ameliorate
inhumane conditions.
(Justice Brennan) 143
A. SUPREME COURT JURISPRUDENCE
Although the Supreme Court has never considered a case where a party
argued solitary confinement as generally practiced in the U.S. is per se cruel and
unusual, the Court has acknowledged that “[c]onfinement in . . . an isolation cell is
a form of punishment subject to scrutiny under Eighth Amendment standards.”144
143

Concurring in Rhodes v. Chapman, 452 U.S. 337, 358-359 (1981).

144

Hutto v. Finney, 437 U.S. 678, 685 (1978).

30

BENNION

This baseline assumption was not always clear. Until 1976, the Court had
not considered whether the Eighth Amendment’s prohibition of “cruel and unusual
punishments” was applicable to prison conditions. Some had argued, as Justice
Thomas does today, that “judges or juries—but not jailers—impose
‘punishment.’”145 While others argued that at least some (if not all) conditions of
imprisonment could represent “punishment” within the meaning of the
Amendment.
Estelle v. Gamble146 was the first case where the Supreme Court applied
the Punishments Clause to a condition of confinement. (Some do not characterize
Estelle as prison condition case—but I use the term broadly as has the Supreme
Court.)147 It held that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ . . .
proscribed by the Eighth Amendment.”148
That case explained the history of the Punishments Clause in broad strokes
(and, as will be discussed in the next section of this Article, in strokes not all
scholars would agree are correct). According to Estelle, the drafters’ primary
concern was “to proscribe tortures and other barbarous methods of punishment.”149
And the first Supreme Court cases addressing this constitutional provision
confined themselves to such concerns. But in later cases the Punishments Clause
was interpreted to have a broader scope. While Estelle recognized that in worst
case scenarios failure to provide medical treatment might result in “torture or a
lingering death[,] … the evils of most immediate concern to the drafters of the
Amendment,”150 it was under this broader interpretation of the Punishments Clause
that the Court found a government obligation to provide medical care for those it
incarcerated.151
Landmark cases that had provided a broadened definition of Eighth
Amendment protection include Weems v. United States152—an early twentieth
145

Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J. dissenting).

146

429 U.S. 97 (1976).

147

See, e.g. Wilson v. Seiter, 501 U.S. 294, 303 (1991) (“Whether one characterizes the treatment
received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical
needs, or a combination of both, it is appropriate to apply the “deliberate indifference” standard
articulated in Estelle.”)
148

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

149

Id. at 102 (internal quotations and parentheses omitted).

150

Id. at 103.

151

Id.

152

217 U.S. 349 (1910).

31
century case that rejected the idea that “cruel and unusual punishments” could refer
only to punishments on par with disembowelment, burning alive, physical torture,
or methods causing a lingering death.153 Instead, the case examined the
Punishments Clause in the context of the rest of the Amendment that prohibits
excessive bail or fines, and found that the Amendment proscribes “all punishments
which by their excessive length or severity are greatly disproportioned to the
offenses charged. . . . The whole inhibition is against that which is excessive either
in the bail required or fine imposed, or punishment inflicted.”154 Thus, the court
overturned a sentence that included fifteen years of “hard and painful labor” in
chains at the ankle and wrist night and day for the offense of falsifying a public
document.155 The case also observed that the Punishments Clause was not static
but progressive, and could “acquire meaning as public opinion becomes
enlightened by a humane justice.”156
In 1958, Trop v. Dulles most famously picked up this latter theme,
declaring in a plurality opinion that the Eighth Amendment “must draw its
meaning from the evolving standards of decency that mark the progress of a
maturing society.”157 In a footnote the case seemed to dismiss the idea that the
language “cruel and unusual” should be translated in its most literal sense—though
a close reading shows the Court taking no particular stand on that issue. The Court
explained:
Whether the word ‘unusual’ has any qualitative
meaning different from ‘cruel’ is not clear. On
the few occasions this Court has had to consider
the meaning of the phrase, precise distinctions
between cruelty and unusualness do not seem to
have been drawn. . . . [Our] cases indicate that
the Court simply examines the particular
punishment involved in light of the basic
prohibition against inhuman treatment, without

153

Id. at 370-71.

154

Weems v. United States, 217 U.S. 349, 371 (1910). See also a fuller discussion of this case in
Elizabeth Bennion, Death Is Different No Longer: Abolishing the Insanity Defense Is Cruel and
Unusual Under Graham v. Florida, 61 DePaul L. Rev. 1, 4-5 (2011).
155

Weems, 217 US at 358, 364.

156

Id. at 378.

157

Trop v. Dulles, 356 U.S. 86, 101 (1958).

32

BENNION
regard to any subtleties of meaning that might be
latent in the word “unusual.”158

The footnote went on to explain that if “unusual” had any separate meaning from
“cruel” (an issue on which the Court took no position) it should simply be “the
ordinary one, signifying something different from that which is generally done.”
And the Court explained that denationalization, the punishment at issue in the case,
would meet such a test since it was first explicitly sanctioned by the government
only in 1940 and had never been “tested against the Constitution until this day,”159
even though “this day” was eighteen years later—meaning it had been in use for
nearly two decades.
But in the main body of the opinion the Court did not spend space or
energy in defining “cruel and unusual” in such literal terms. Instead the Court
asserted that “[t]he basic concept underlying the Eighth Amendment is nothing less
than the dignity of man.”160 While the state had “power to punish, the Amendment
stands to assure that this power be exercised within the limits of civilized
standards.”161 And the court found that denationalization violated those civilized
standards by “the total destruction of the individual’s status in organized
society.”162 Interestingly, the opinion also refers to the “virtual unanimity” of
“civilized nations of the world” for moral authority that statelessness should not be
an available criminal punishment.163
Such international comparisons and the position that what is “cruel and
unusual” should be defined by contemporary evolving standards could be
interpreted as an effort to determine what is and is not sufficiently “unusual” under
the Amendment, but the Trop footnote discussed above suggests that is not how
the Court envisioned it. Instead, the international comparisons and efforts to
determine contemporary standards seem to simply provide further authority for

158

Id. at 101, note 32.

159

Id.

160

Id. at 100.

161

Id.

162

Id. at 101.

163

Trop v. Dulles, 356 U.S. 86, 102, 78 S. Ct. 590, 599, 2 L. Ed. 2d 630 (1958). Thus confirming
what other scholars have noted—that Justice Kennedy is far from the first Supreme Court Justice to
use international sources. “It takes no more than a glance at the earliest volumes of U.S. Reports to
confirm that the practice of drawing upon international sources is nothing new to the Supreme Court.
Beginning with its earliest opinions in the 1790s, the Court has often referred to international law and
non-American materials.” Stephen C. McCaffrey, There's A Whole World Out There: Justice
Kennedy's Use of International Sources, 44 McGeorge L. Rev. 201 (2013).

33
making the normative moral judgment of what should be considered excessively
cruel or inhumane.164
Another case upon which Estelle drew extensively was one that had been
decided earlier that same year, Gregg v. Georgia.165 Estelle explained that under
the oft-quoted Trop, punishments indeed needed to comport with public
perceptions of standards of decency. But beyond that, punishments must accord
with “the dignity of man,” which meant “at least” that excessive punishments were
prohibited. Excessive punishments in the abstract (as opposed to challenges of
specific punishments for a specific defendant for specific crimes) were defined as
ones that either involved the “unnecessary and wanton infliction of pain” or were
“grossly out of proportion to the severity of the crime.”166 Expounding on
“unnecessary and wanton infliction of pain,” the Court explained that a “sanction
imposed cannot be so totally without penological justification that it results in the
gratuitous infliction of suffering.”167
In Estelle, withholding medications for a serious injury was found to be
just such an unnecessary infliction of pain without penal justification. And it was
based on the finding that the Eighth Amendment “embodies broad and idealistic
concepts of dignity, civilized standards, humanity, and decency” that the Court
established the government’s obligation to care for prisoners who could not care
for themselves due to their incarceration.168 The Court stated that “[t]he infliction
of such unnecessary suffering is inconsistent with contemporary standards of
decency as manifested in modern legislation8 codifying the common-law view that
‘(i)t is but just that the public be required to care for the prisoner, who cannot by
reason of the deprivation of his liberty, care for himself.’”169
But, in a move that has been heavily criticized by some scholars,170 the
Court did not go so far as to say that any failure or even any negligent failure to
164
See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev.
881, 979 n.2 (2009) (“But the concern with ‘evolving standards of decency’ that motivates the
dueling census-taking of state practices found in the Court's recent death penalty decisions stems
from the Clause's prohibition on cruelty, and reflects a rejection of the originalist position that Eighth
Amendment cruelty should be interpreted to mean what it meant when the Bill of Rights was
adopted.”)
165

428 US 153 (1976).

166

Gregg v. Georgia, 428 U.S. 153, 173 (1976).

167

Id. at 183; see also Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

168

Estelle v. Gamble, 429 U.S. 97, 102-103 (1976).

169

Id. at 103-04.

170

See, e.g., Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L.
Rev. 881 (2009). See also infra nn.198-204.

34

BENNION

provide adequate medical care for serious illness or injury would qualify as a
breach of the Eighth Amendment. The key words were “deliberate indifference.”
Negligence might result in the unnecessary infliction of pain—but only when there
was deliberate indifference would it also be “wanton” or sufficiently “repugnant to
the conscience of mankind” to “offend ‘evolving standards of decency’ in violation
of the Eighth Amendment.”171
Several cases following Estelle indicated that the Supreme Court would be
willing to consider prison conditions generally (beyond issues of medical
attention) under the Eighth Amendment. For example, Ingraham v. Wright stated
in dicta that “[p]rison brutality … is part of the total punishment to which the
individual is being subjected for his crime and, as such, is a proper subject for
Eighth Amendment scrutiny.”172 Hutto v. Finnley was the first case to actually
require an analysis of the Eighth Amendment’s relation to prison conditions
beyond medical care. The parties did not dispute that the Punishments Clause
applied to prison conditions generally—and the Court observed that
“[c]onfinement in a prison or in an isolation cell is a form of punishment subject to
scrutiny under Eighth Amendment standards.”173 Prison officials challenged only
two aspects of relief granted by the District Court. In upholding the District
Court’s remedy regarding limitations on solitary confinement, the Supreme Court
considered only objective conditions of confinement and stated there was “no error
in the [District Court’s] conclusion that, taken as a whole, conditions in the
isolations cells continued to violate the prohibition against cruel and unusual
punishment.”174
Rhodes v. Chapman was the first case where the disputed issue before the
Court was the limitations that the Eighth Amendment imposes on conditions of
confinement in prison beyond medical care. Unsurprisingly, given the language in
cases like Estelle, Ingraham, and Hutto, the Court held unequivocally that the
Punishments Clause did apply to prison conditions generally.175 Although Rhodes
repeated much of Estelle’s language, it refused to recognize any “static test” that
could determine an Eighth Amendment violation since a Court would have to
evaluate “evolving standards of decency that mark the progress of a maturing
society.”176 Most significantly, it did not employ any analysis of whether the
challenged conditions were the result of “deliberate indifference.” Instead, it made
an objective analysis of whether the prison conditions resulted in deprivation of
171

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

172

Ingraham v. Wright, 430 U.S. 651, 669 (1977) (internal quotations omitted).

173

Hutto v. Finney, 437 U.S. 678, 685 (1978).

174

Id. at 686.

175

Rhodes v. Chapman, 452 U.S. 337, 345 (1981).

176

Id. at 346.

35
“the minimal civilized measure of life’s necessities” including food, medical care,
sanitation, or whether violence was increased or other conditions created that
would be “intolerable for prison confinement.”177 The Constitution, Rhodes
declared, “does not mandate comfortable prisons.”178 But it also provided for the
possibility of a cumulative effect of substandard conditions—explaining that
prison conditions “alone or in combination” might unconstitutionally deprive a
prisoner of minimum necessities.179
Thus, following Rhodes and Estelle, the Court had provided two separate
modes of analysis—one involving merely an objective inquiry of whether a
deprivation was sufficiently serious, and the other requiring the additional element
of a culpable state of mind. Rhodes’s seeming rejection of the idea that deliberate
indifference was always necessary in an Eighth Amendment prison conditions case
was reiterated in a concurrence that emphasized: “The touchstone of the Eighth
Amendment inquiry is the effect upon the imprisoned.”180
Recognizing the tension between such divergent modes of analyses,
Wilson v. Seiter sought to harmonize Estelle and Rhodes. Reasoning that
“punishment” must inherently be a deliberate act, as opposed to, for example,
accidentally stepping on a prisoner’s toe, Wilson held that prison conditions could
not violate the Eighth Amendment without a showing of deliberate indifference
and a showing that the deprivation was objectively serious enough to constitute a
minimal life necessity.181 Wilson characterized Rhodes as a case where it had
simply not been necessary to reach the subjective component of the test for a
Punishments Clause violation because the objective prong had not been met.182
A concurrence of four Justices took issue with this characterization, and
argued that a subjective test would often be unworkable in the context of
conditions created by “cumulative actions and inactions by numerous officials
inside and outside a prison, sometimes over a long period of time. . . . In truth,
intent simply is not very meaningful when considering a challenge to an institution
. . . .”183 Further, the concurrence argued that the approach was unwise—leaving
177

Id. at 347-348.

178

Id. at 349.

179

Id. at 357. [insert explanation of Scalia expounding on this principle—cumulative analysis must
go toward the showing of at least one minimal need being denied…]
180
Rhodes v. Chapman, 452 U.S. 337, 366 (1981) (Brennan concurring with Blackmun and Stevens)
(internal quotations omitted).
181

See Wilson v. Seiter, 501 U.S. 294, 299-304 (1991).

182

See id. at 298.

183

Wilson v. Seiter, 501 U.S. 294, 310 (1991) (concurrence).

36

BENNION

open the possibility for prison officials to defeat challenges of clearly inhumane
conditions by showing there was some other cause than deliberate indifference—
insufficient funding for instance. “The ultimate result of today’s decision, I fear, is
that serious deprivations of basic human needs will go unredressed due to an
unnecessary and meaningless search for deliberate indifference.”184
Cases that followed further defined the boundaries of the subjective and
objective tests. Helling v. McKinney provided that a risk of serious injury could be
enough to constitute cruel and unusual punishment.185 “[A] remedy for unsafe
conditions need not await a tragic event.”186 The fact that the risked injury may
never occur or is not imminent is not dispositive for either the objective or
subjective prongs.187
Farmer v. Brennan undertook a lengthy analysis of the meaning of
“deliberate indifference.” It concluded that it was “more than mere negligence”
and “less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.”188 The Court landed on a standard that equated
to what is required in criminal rather than civil contexts for recklessness—the
prison official must recklessly disregard an excessive risk to inmate health or
safety of which he or she was aware—not simply one of which the official should
have been aware.189
Although the standard requires actual awareness, that awareness may be
inferred from circumstantial evidence—such as that the risk was obvious.190 “Nor
184

Id. at 311 (concurrence) (internal quotations and citations omitted).

185

509 U.S. 25, 36 (1993) (The issue in this case was whether risk of injury from second-hand smoke
could constitute cruel and unusual punishment.).
[W]hether McKinney's conditions of confinement violate
the Eighth Amendment requires more than a scientific and
statistical inquiry into the seriousness of the potential harm
and the likelihood that such injury to health will actually be
caused by exposure to ETS [environmental tobacco
smoke]. It also requires a court to assess whether society
considers the risk that the prisoner complains of to be so
grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk. In other words,
the prisoner must show that the risk of which he complains
is not one that today's society chooses to tolerate.
Helling v. McKinney, 509 U.S. 25, 36, (1993).
186

Helling v. McKinney, 509 U.S. 25, 33 (1993).

187

Id. at 33.

188

Farmer v. Brennan, 511 U.S. 825, 835 (1994).

189

See id. at 837-838.

190

Id. at 842.

37
may a prison official escape liability for deliberate indifference by showing that,
while he was aware of an obvious, substantial risk to inmate safety, he did not
know that the complainant was especially likely to be assaulted by the specific
prisoner who eventually committed the assault.”191 Awareness of the general risk
would be enough to allay the Court’s concerns that the action or inaction
constituted punishment.192
The most recent case to address prison conditions and the Eighth
Amendment is Brown v. Plata. The Supreme Court affirmed a three-judge court
ruling requiring California to dramatically reduce overcrowding in its prisons to
137.5% of design capacity.193 The Court agreed that: “The medical and mental
health care provided by California's prisons falls below the standard of decency
that inheres in the Eighth Amendment. This extensive and ongoing constitutional
violation requires a remedy, and a remedy will not be achieved without a reduction
in overcrowding.”194 It reiterated the underpinnings of the 8th Amendment as the
“dignity of man”195 and refused to call the remedy overbroad because any prisoner
in the system who became sick or mentally ill would become the “system’s next
potential victims.”196
Thus through twists and turns the modern Supreme Court jurisprudence
regarding prison conditions that violate the Eighth Amendment now requires both
an objective showing of at least a substantial risk of serious harm and a subjective
showing of recklessness on the part of the government. The objective showing
must be sensitive to the evolving mores of society. And the subjective component
must show actual awareness on the part of the government for the condition or risk
to qualify as “punishment” at all.
B. CRITICISMS OF SUPREME COURT ANALYSIS
The current two-part test for determining if prison conditions violate the
Eighth Amendment has received limited scholarly attention when compared to

191

Id. at 843.

192

Id. at 838 (“But an official's failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be condemned as the infliction of
punishment.”)
193

Brown v. Plata, 131 S. Ct. 1910, 1923 (2011).

194

Id. at 1947.

195

Id. at 1928.

196

Id. at 1940.

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197

other aspects of Eighth Amendment jurisprudence such as sentencing. But that
is not because the test is so well constructed that it is immune from criticism.
Indeed there are multiple problems with the current framework.
The Supreme Court’s decision to include a “deliberate indifference”
requirement in an Eighth Amendment analysis is fundamentally flawed. First, it
places undue emphasis on the subjective intent of prison authorities, instead of
focusing on the effect of conditions upon the imprisoned. 198 The text of the
amendment restricts punishments based on the nature of those punishments, not
the nature of the inflictors.
Second, the deliberate indifference standard creates perverse incentives for
authorities to turn a blind eye to severe human suffering. So long as they do not
notice an inhumane condition, they will not be held responsible for failing to
change it—even if they reasonably should have noticed it—and “[d]espite the fact
that when prison officials do not pay attention, prisoners may be exposed to the
worst forms of suffering and abuse.” 199
Third, by requiring deliberate indifference to classify a prison condition as
a “punishment,” the standard may cause “courts [to] be too deferential because of
the difficulty in policing the line between prison conditions that reflect
management principles and prison conditions that are punitive in nature.”200 The
subjective prong can be too easily defeated by showing concerns over cost or other
197

See Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in
Determining What Is Cruel and Unusual, 49 Am. Crim. L. Rev. 1815, 1816 (2012).
198
See Rhodes v. Chapman, 452 U.S. 337, 366 (1981) (Brennan concurring with Blackmun and
Stevens); see also Katherine L. Smith, Lost Souls: Constitutional Implications for the Deficiencies in
Treatment for Persons with Mental Illness in Custody, 42 Golden Gate U.L. Rev. 497 (2012);Jeffrey
M. Lipman, Eighth Amendment and Deliberate Indifference Standard for Prisoners: Eighth Circuit
Outlook, 31 Creighton L. Rev. 435 (1998); Richard D. Vetstein, Rape and Aids in Prison: On a
Collision Course to a New Death Penalty, 30 SUFFOLK U. L. REV. 863 (1997).
199
Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881,
882 (2009); see also Matt Lloyd, Dormant Data: Why and How to Make Good Use of Deaths in
Custody Reporting, 39 Am. J. Crim. L. 301 (2012); Jeffrey Smith McLeod, Note, Anxiety, Despair,
And The Maddening Isolation Of Solitary Confinement: Invoking The First Amendment's Protection
Against State Action That Invades The Sphere Of The Intellect And Spirit, 70 U. Pitt. L. Rev. 647
(2009); Mary McLean Jordan, Care to Prevent HIV Infection in Prison: A Moral Right Recognized
By Canada, While the United States Lags Behind, 37 U. Miami Inter-Am. L. Rev. 319 (2006);
Christine Peek, Comment, Breaking out of the Prison Hierarchy: Transgender Prisoners, Rape, And
The Eighth Amendment, 44 Santa Clara L. Rev. 1211, 1244 (2004); Christine Rebman, Comment,
The Eighth Amendment and Solitary Confinement: The Gap in Protection From Psychological
Consequences, 49 DePaul L. Rev. 567 (1999); Heather M. Kinney, The "Deliberate Indifference"
Test Defined: Mere Lip Service to the Protection of Prisoners' Civil Rights, 5 Temp. Pol. & Civ. Rts.
L. Rev. 121 (1995).
200

Alexander A. Reinert, Eighth Amendment Gaps: Can Conditions of Confinement Litigation
Benefit from Proportionality Theory?, 36 Fordham Urb. L.J. 53, 75-76 (2009).

39
motivations besides deliberate indifference, even if prison conditions are extremely
inhumane.201
Fourth, difficulties in employing the present standard include the problem
of how to determine institutional intent or an institutional state of mind where there
are multiple actors with multiple mental states.202 This difficulty will often result
in the factor simply being a proxy for the fact finder’s biases about the
institution.203
There are also problems with the objective component of the Supreme
Court test regarding the sufficient severity of the condition at issue—usually
meaning whether there was a deprivation of a minimal life necessity or an
imposition of unnecessary suffering so severe that it offends contemporary societal
values. This prong is also subject to criticism on numerous grounds.
First, and this criticism applies to the Punishments Clause jurisprudence
generally, not just the prison conditions test, the dependence on contemporary
evolving societal values raises numerous difficulties.204 For example, whose
201

See Wilson v. Seiter, 501 U.S. 294, 311(1991) (concurrence).

202

See Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in
Determining What Is Cruel and Unusual, 49 Am. Crim. L. Rev. 1815, 1836 (2012); Will A. Smith,
Civil Liability for Sexual Assault in Prison: A Challenge to the "Deliberate Indifference" Standard,
34 Cumb. L. Rev. 289 (2004).
203
Id. at 1837; see also Lisa DiBartolomeo, Constitutional Law--Subjective Awareness Governs the
Deliberate Indifference Standard in Cruel and Unusual Punishment Claims--Farmer v. Brennan, 114
S. Ct. 1970 (1994), 29 Suffolk U. L. Rev. 294 (1995); Richard Siever, HMOS Behind Bars:
Constitutional Implications of Managed Health Care in the Prison System, 58 VAND. L. REV. 1365,
(2005).
204

See e.g. Jennifer Carter, Capital Punishment: A Struggle to Satisfy Evolving Standards of Decency
- Reviewing the Debate in the United States and Canada, 17 Sw. J. Int'l L. 237, 254 (2011); Bethany
Siena, Kennedy v. Louisiana Reaffirms the Necessity of Revising the Eighth Amendment's Evolving
Standards of Decency Analysis, 22 Regent U. L. Rev. 259, 270 (2010); Corinna Barrett Lain, Lessons
Learned from the Evolution of "Evolving Standards", 4 Charleston L. Rev. 661, 663 (2010); Michael
D. Dean, State Legislation and the "Evolving Standards of Decency": Flaws in the Constitutional
Review of Death Penalty Statutes, 35 U. Dayton L. Rev. 379, 381 (2010); Courtney Butler, Baze v.
Rees: Lethal Injection As A Constitutional Method of Execution, 86 Denv. U. L. Rev. 509, 520
(2009); John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment As A Bar to
Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1751 (2008); James B. Johnston, Executing Capital
Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition of the Death Penalty and
Convincing Other States to Follow Suit, 34 J. Legis. 1, 6 (2008); Susan M. Raeker-Jordan, Parsing
Personal Predilections: A Fresh Look at the Supreme Court's Cruel and Unusual Death Penalty
Jurisprudence, 58 Me. L. Rev. 99, 104 (2006); Captain Douglas L. Simon, Making Sense of Cruel
and Unusual Punishment: A New Approach to Reconciling Military and Civilian Eighth Amendment
Law, 184 Mil. L. Rev. 66, 69 (2005); Michael J. O'Connor, What Would Darwin Say?: The MisEvolution of the Eighth Amendment, 78 Notre Dame L. Rev. 1389, 1414 (2003); Mary Kate
Kearney, Substantive Due Process and Parental Corporal Punishment: Democracy and the Excluded

40

BENNION

values count in that analysis and how do you measure them? Are international
sources relevant? What domestic sources are relevant? What are the time
constraints on that analysis—do we look at what has been accepted over the last
ten, twenty, fifty years or more, or are we only concerned with today’s or this
year’s whims? Where there seems to be differences in societal viewpoints on a
matter, how much will tip the balance? Does it make sense to only be able to find
something cruel and unusual depending on how long it takes certain elements of
our own or others’ societies to recognize the inhumanity in their legislative
systems (a measure often used by the Supreme Court)?
On issues particular to a prison conditions analysis there are further
ambiguities. What should qualify as basic life necessities? What about exercise,
sunlight, or a prisoner who cannot sleep because lights are on all night? How cold
must it be before lack of heating or adequate blankets become cruel and unusual?
Should psychological as well as physical harm be considered? Should it matter
why any particular deprivation occurred?205
These types of ambiguities contribute to the fear that the “objective prong”
of the test will again simply be a proxy for pre-existing subjective views of what
should or should not be an acceptable condition of imprisonment. Inconsistent
lower court judgments on this prong serve to bolster the theory that “[l]ower court
decisions on what constitutes ‘sufficiently serious’ have been largely dictated by
the sentiments of the judge and the quality of the advocacy.”206
Many scholars also see Eighth Amendment jurisprudence as having
departed too far afield from the requirements of the text. They advocate either a
return to an analysis of what is cruel,207 or both an analysis of what is cruel and
what is unusual.208 However, their interpretations of what those terms should
Child, 32 San Diego L. Rev. 1, 4 (1995); Samuel J.M Donnelly, Capital Punishment: A Critique of
the Political and Philosophical Thought Supporting the Justices' Positions, 24 St. Mary's L.J. 1, 33
(1992); Etta J. Mullin, At What Age Should They Die? The United States Supreme Court Decision
with Respect to Juvenile Offenders and the Death Penalty Stanford v. Kentucky and Wilkins v.
Missouri, 109 S. Ct. 2969 (1990), 16 T. Marshall L. Rev. 161, 183 (1990).
205
See Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in
Determining What Is Cruel and Unusual, 49 Am. Crim. L. Rev. 1815, 1828 (2012).
206

Id. at 1823.

207

See e.g., Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L.
Rev. 881 (2009).
208

See, e.g., Michael Perry, Toward a Theory of Human Rights: Religion, Law, Courts 124 (2007);
Joshua L. Shapiro, And Unusual: Examining the Forgotten Prong of the Eighth Amendment, 38 U.
Mem. L. Rev. 465, 487 (2008); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth
Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739 (2008); Meghan J. Ryan, Does
the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and
Unusual?, 87 Wash. U.L. Rev. 567 (2010); Meghan J. Ryan, Judging Cruelty, 44 U.C. Davis L. Rev.
81 (2010).

41
mean in any context, not just that of prison conditions, are far from uniform.209
Nor do scholars agree on the relation of those two words—i.e. whether “unusual”
should be considered separately at all, and, if so, whether it is has an entirely
independent meaning or has equal force in a proper interpretation.210
The one area where there is general consensus is that we should not simply
look at what specific punishments were considered cruel and unusual at the time of
the founding.211 Thus, even an ardent originalist like Justice Scalia has said that
“in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any
more than any other federal judge, upholding a statute that imposes the punishment
of flogging.” 212
C. AN IMPROVED PRISON’S CONDITIONS EIGHTH AMENDMENT STANDARD
Because of the multiple problems with the current standard explained
above, an analysis of prison conditions under the Eighth Amendment should not
require a finding of deliberate indifference. Such intent is not logically required
for an inhumane prison condition to qualify as a “punishment.” There was intent
209

For example, Michael Perry would interpret “unusual” to mean “not commonly used” presently on
a global scale, see [cite new book]; whereas John Stinneford would define is at “contrary to long
usage,” see John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment As A
Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1745 (2008).
210
Joshua L. Shapiro, And Unusual: Examining the Forgotten Prong of the Eighth Amendment, 38
U. Mem. L. Rev. 465, 470 (2008); Hugo Adam Bedau, The Courts, the Constitution, and Capital
Punishment 37 (1977); Meghan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit
Only Punishments That Are Both Cruel and Unusual?, 87 Wash. U.L. Rev. 567 (2010).
211
See Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 2953, 106 L. Ed. 2d 256 (1989)
abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (“At a
minimum, the Eighth Amendment prohibits punishment considered cruel and unusual at the time the
Bill of Rights was adopted. The prohibitions of the Eighth Amendment are not limited, however, to
those practices condemned by the common law in 1789.” (internal citations omitted)).
212

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). Though
whether he would find a flogging that occurred in a prison at the hands of a wayward guard to be
cruel and unusual punishment is more debatable. Justice Scalia apparently supports the Whitely
standard for judging whether a prison official’s act in response to a disturbance constitutes cruel and
unusual punishment. See Whitley v. Albers, 475 US 312 (1986). Although such use of force could
be considered a prison condition it has been cordoned off in a separate category of its own. In that
case the court considered whether an official applied force “in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. at 32021. Whitley required this malice standard for wantonness because, Scalia explained in Wilson v.
Seiter: “Where (as in Whitley ) officials act in response to a prison disturbance, their actions are
necessarily taken “in haste, under pressure,” and balanced against “competing institutional concerns
for the safety of prison staff or other inmates.” Wilson v. Seiter, 501 U.S. 294, 302 (1991).

42

BENNION

in imprisoning the inmate—and thereby taking on the “carceral burden” of
providing for that person’s health and safety. Thus all state-created conditions of
confinement could be interpreted as punishments regardless of whether any
particular official manifested deliberate indifference regarding particular prison
conditions.213 To try to disconnect the meaning of punishment from the means by
which a sentence is carried out would far too easily circumvent constitutional
protections.214
While all state-created conditions of imprisonment should be thus
considered part and parcel of a “punishments” definition, this does not mean that
every cruel condition of imprisonment violates the Eighth Amendment. Prison is
an inherently cruel environment in that society willfully inflicts pain and suffering.
Severely restricting liberty of a person for months or years is a cruel act. But it is
not necessarily excessively cruel nor is it unusual to, for example, imprison
someone convicted of an intentional violent crime.
The words “cruel and unusual” should be interpreted to encompass any
prison condition that is inhumane or excessively cruel. Scholars have disagreed
over the original intent regarding whether “cruel and unusual” was to be translated
literally or whether they were used as a term of art for excessive punishments of
any kind regardless of their frequency.215 But interpreting the Punishments Clause
213
See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev.
881, 890-891 (2009); see also Thomas K. Landry, "Punishment" and the Eighth Amendment, 57
Ohio St. L.J. 1607, n.176 (1996); Melvin Gutterman, The Contours of Eighth Amendment Prison
Jurisprudence: Conditions of Confinement, 48 SMU L. Rev. 373 (1995); Jason D. Sanabria,
Comment, Farmer v. Brennan: Do Prisoners Have Any Rights Left Under The Eighth Amendment?,
16 Whittier L. Rev. 1113 (1995).
214
For example, Justice Thomas would only recognize as “punishment” conditions imposed by a
judge or jury rather than a jailer. See Helling v. McKinney, 509 U.S. 25, 40, 113 S. Ct. 2475, 2484,
125 L. Ed. 2d 22 (1993) (Thomas, J. dissenting). Some scholars also argue that Even if “deliberate
indifference” is shown, this does not necessarily mean the condition was imposed for the purpose of
chastising or deterring the prisoner—features they argue are necessary for a condition to qualify as
“punishment” under the Amendment. See, e.g., Sara L. Rose, "Cruel and Unusual Punishment" Need
Not Be Cruel, Unusual, or Punishment, 24 Cap. U. L. Rev. 827, 829 (1995).
215

See, e.g., John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual
Punishments Clause, 97 Va. L. Rev. 899, 927 (2011); John D. Castiglione, Qualitative and
Quantitative Proportionality: A Specific Critique of Retributivism, 71 Ohio St. L.J. 71, 76 (2010);
The Eighth Amendment, Proportionality, and the Changing Meaning of “Punishments,” 122 Harv. L.
Rev. 960, 961 (2009); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth
Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1747, 1770 (2008); Laurence
Claus, Methodology, Proportionality, Equality: Which Moral Questions Does the Eighth Amendment
Pose?, 31 Harv. J.L. & Pub. Pol'y 35, 45 (2008); Donna H. Lee, Resuscitating Proportionality in
Noncapital Criminal Sentencing, 40 Ariz. St. L.J. 527, 528 (2008); Carol S. Steiker, Panetti v.
Quarterman: Is There a “Rational Understanding” of the Supreme Court's Eighth Amendment
Jurisprudence?, 5 Ohio St. J. Crim. L. 285, 290 (2007); Eva S. Nilsen, Decency, Dignity, and Desert:
Restoring Ideals of Humane Punishment to Constitutional Discourse, 41 U.C. Davis L. Rev. 111, 111
(2007); Alice Ristroph, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 263,
278 (2005); Erwin Chemerinsky, The Constitution and Punishment, 56 Stan. L. Rev. 1049, 1063-65

43
as a simple popularity test leads to untenable results. Disembowelment, for
example, should not cease to violate the Eighth Amendment simply because
suddenly many states or countries revive the practice.
The Supreme Court’s insight that the Eighth Amendment seems to be
directed at preventing that which is excessive—both in terms of fines imposed and
punishments inflicted—is correct. Any punishment that denies a minimum human
necessity is excessively cruel and inhumane regardless of how frequently it may be
employed. Minimum human necessities should be defined to include (though not
be limited to) any condition that imposes an unnecessary and high risk of severe
harm—regardless of how imminent the risk and regardless of whether the harm
ever materializes.
“Cruel and unusual” should not be interpreted to mean that the punishment
must always be literally an infrequent practice to violate the Punishments clause,
but the word “unusual” should not be utterly disregarded in its literal sense.
Rather, it could be used to clarify the boundaries of what is excessively cruel when
the boundaries are unclear. If, for example, a defendant has succeeded in showing
that a prison condition violates a minimum human necessity, then that condition
should be considered cruel and unusual without further need of analysis. However,
if the evidence is not overwhelming that the complained of condition is inhumane
or excessively cruel, the word “unusual” in its literal sense could provide further
points of data in weighing the decision. Relevant points of data in that analysis
would include both the frequency of the current use of the condition in prisons and
whether the use has been consistent over time—and whether inconsistencies were
due to concerns over the condition’s inherent cruelty.
Courts could use these data points to weigh the ultimate normative
question: whether the conditions are too cruel to survive an Eighth Amendment
analysis. If either domestic or international practice has been inconsistent over
time due to concerns over the cruelty of the treatment, or the current domestic or
international trend is away from the practice for similar reasons, those factors
should weigh in favor of finding the practice cruel and unusual. While
international data is relevant, domestic evidence should weigh more heavily in the
(2004); Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth
Amendment: “Proportionality” Relative to What?, 89 Minn. L. Rev. 571, 574 (2005); Adam M.
Gershowitz, The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial
Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev.
1249 (2000); Stephanie E. Carlson, State v. Pack: Proportionality of Sentences - Should It Be A
Necessary Factor in Determining Whether A Sentence "Shocks the Conscience of the Court?", 40
S.D. L. Rev. 130, 141 (1995); Larry Charles Berkson, The Concept of Cruel and Unusual Punishment
(1975); Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original
Meaning, 57 Cal. L. Rev. 839, 844 - 847, 845 n.28 (1969).

44

BENNION

balance to be certain U.S. law is in line with its own societal values. This
alternative means of Eighth Amendment analysis of prison conditions would be
truer to both the text and purpose of the Punishments Clause than the current
analytic framework.
D. WHY SOLITARY CONFINEMENT IS “CRUEL AND UNUSUAL” DESPITE ITS
FREQUENT USE IN THE UNITED STATES
While this Article argues for a different standard for measuring what is
cruel and unusual in terms of prison conditions, solitary confinement should
qualify as a violation of the Punishments Clause under either the present or a
modified interpretation of the Eighth Amendment.
1. Cruel and Unusual Under Today’s Standard
The test under today’s standard would be whether solitary confinement
conditions meets the two prong test of first, sufficiently serious cruelty, and
second, that the condition is imposed with “deliberate indifference.”216 Despite the
fact that almost all lower courts have refused to find solitary confinement cruel and
unusual unless aimed at specific vulnerable categories such as the severely
mentally ill,217 solitary confinement conditions in the United States do satisfy both
prongs of the test.
First, the evidence previously discussed of the serious deleterious effects
of prolonged solitary confinement on the psyche and on the body show that social
contact and sensory stimulation is a “minimal life necessity” –just as food,
sanitation, and medical care (the examples cited in Rhodes218), and “warmth or
exercise” (examples added by Wilson219). As one expert explained: “Human beings
require some degree of social interaction and productive activity to establish and
sustain a sense of identity and to maintain a grasp on reality.”220
The efforts of some to distinguish psychological harm as somehow less
serious than physical harm in an Eighth amendment analysis is flawed on several
grounds. First, the ongoing social neuroscience research clarifies that the type of
216

See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

217

See, e.g., Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995); [insert others].

218

Rhodes v. Chapman, 452 U.S. 337, 347-348 (1981).

219

Wilson v. Seiter, 501 U.S. 294, 304 (1991).

220

ACLU of Maine, Statements for Congressional Hearing 16 quoting An Act to Ensure Humane
Treatment for Special Management Prisoners Testimony: Hearing on LD 1611 before the Joint
Committee on Criminal Justice and Public Safety, 124th Maine Legislature (February 17, 2010)
(statement of Terry Kupers, M.D., M.S.P.).

45
severe psychological deterioration observed in solitary confinement is due to
physical harms imposed on the brain. Second, these physical alterations in the
brain can lead to what society would consider physical harms such as disease and
death. Third, the disturbed behaviors can also lead to immediately obvious
physical harm including self-mutilation and suicide. Fourth, if the purpose of cruel
and unusual punishments is to protect the prisoner from tortuous punishments—
most would agree that psychological tortures can be far worse than physical ones.
Many prefer a broken arm to a broken mind.
The fact that any particular inmate in solitary confinement may not yet be
exhibiting severe symptoms of psychological deterioration is irrelevant. Helling
clarified that a risk of serious injury can constitute cruel and unusual
punishment.221 There is no need to wait for an inmate to become insane to
acknowledge that solitary confinement is cruel and unusual. The fact that serious
risks may never materialize in serious harm (or the harm may not be imminent) is
not dispositive for either of prong of the test.222 Although it is clear that some
populations are at greater risk of harm than others (juveniles and the already
mentally ill for instance), no person is immune to serious risk—as evidenced by
the extremely high percentages of those effected in prisons and the studies of
psychologically screened astronauts and explorers.
The question is “whether society considers the risk that the prisoner
complains of to be so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.”223 Denial of minimal life necessities
have been defined as cruel and unusual punishment precisely because they meet
that standard. Civilized society will not tolerate neglecting the most basic human
needs of those whom are necessarily under the state’s care due to the state’s
deprivation of their liberty.224 The scientific evidence previously considered
establishes that some degree of social interaction and productive activity is such a
minimal necessity without which the body, brain and associated behavior may
begin to seriously deteriorate.
The “deliberate indifference” prong of the test is also met. Where
injunctive relief is sought, prisoners could certainly show by the time of trial that
authorities were aware of either the actual harm or risk of harm caused by solitary
confinement. The lawsuit itself would have made them aware even if it had not
221

Helling v. McKinney, 509 U.S. 25, 33, 36 (1993).

222

See id.

223

Helling v. McKinney, 509 U.S. 25, 36 (1993).

224

See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev.
881 (2009).

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BENNION

already been obvious. Helling explained that for purposes of injunctive relief,
“deliberate indifference[] should be determined in light of the prison authorities’
current attitudes and conduct.”225 And, according to Farmer, the awareness need
not be individualized—awareness of a general serious risk involved with solitary
confinement is enough.226
Thus, even under the arguably flawed current standard, solitary
confinement is cruel and unusual—regardless of how usual it may currently be
within our system.
2. Cruel and Unusual under a Modified Interpretation
Under the modified standard proposed, there would be no need to do the
deliberate indifference analysis. Because the state has deprived the prisoners of
their ability to care for themselves through imprisonment—the state has
intentionally taken on the burden of providing for the prisoners’ basic needs. Thus
any requirement of intent inherent in the word “punishment” or “cruelty” is
sufficiently met by the intent to carry out the sentence and take on the necessary
obligations of prisoner care.
Because, as outlined above, the science has so clearly established that
significant social contacts and opportunity for productive activity are a basic
human necessity, there would be no need under the proposed standard to delve any
further into the “usualness” of the practice. The evidence of what can happen to
the body, brain, and behavior in conditions of extreme isolation; the high rates of
prisoners who do severely deteriorate; and the unpredictability of who among the
seemingly resilient will be among those who suffer severe harm all indicate a high
risk of severe harm. The risk is unnecessary because no vital prison objective
requires the extreme conditions employed (as will be discussed further in the
policy section of this Article).
However, if a court were to turn to an “unusualness” analysis, it would
also find support for the decision that the practice violates the Eighth Amendment.
First, as explained in the history section of this Article, the United States
abandoned prolonged or extreme solitary confinement measures in the nineteenth
century because of concerns over its serious mental health implications on the
prisoners (as well as cost implications to the institution—though that point would
be irrelevant to this part of the analysis). Thus domestic use of solitary
confinement has not been consistent over time due to its cruel effects. Second,
internationally there is a marked movement against solitary confinement due to

225

Id. at 36.

226

Farmer v. Brennan, 511 U.S. 825, 838 (1994).

47
similar concerns.227 Third, there is even the beginning of a movement against the
practice in the United States—as evidenced by the stated positions of politicians in
the first Senate hearing on the issue in 2012 and by reforms in places such as
Mississippi and Maine discussed in the next section.
***
Thus, under either the current or a modified standard, common forms of
solitary confinement in the United States are cruel and unusual under the Eighth
Amendment.

V.
ALTERNATIVES
Texas’s administrative segregation units are
virtual incubators of psychoses—seeding illness
in otherwise healthy inmates and exacerbating
illness in those already suffering from mental
infirmities.
(Judge William Justice)228
A. THE POLICY GOAL DISCONNECT
Not only is solitary confinement cruel and unusual because it denies
minimum life necessities (and is thus illegal regardless of what legitimate policies
it might promote), but it also fails to significantly advance relevant legitimate
policy goals—including cost savings, institutional safety, and/or public safety and
rehabilitation.
First, as previously mentioned, it is far more expensive than available
alternatives. For example, in California the annual cost of keeping a prisoner is
solitary confinement is estimated as $71,000-$78,000, whereas housing a prisoner

227

See, e.g., European Comm. For the Prevention of torture and Inhuman or Degrading Treatment of
Punishment (1992), 2d General Report on the CPT’s Activities Covering the Period 1 January to 31
December 1991 56 (stating that solitary confinement can rise to the level of inhuman and degrading
treatment and should be as short as possible); J. Lobel, Prolonged Solitary Confinement and the
Constitution, J. of Const. Law, 11, 123.
228

Ruiz v. Johnson, 37 F. Supp.2d 855, 907 (1999).

48

BENNION

in the general population for the same period costs approximately $58,000;229 in
Arizona the numbers are $50,000 compared to $20,000; in Maryland the cost of
solitary confinement is three times greater per prisoner; in Ohio it is twice as high;
in Texas 45% greater, in Connecticut near twice as high; and in Illinois it is three
times as high.230 The reasons for this increase in cost include not only space but
also staffing issues, because work done by prisoners in other types of prison
settings (such as cooking and cleaning) must be done by prison staff.231 The
physical and psychological toll of the environment would also presumably increase
medical costs. Note, however, that even if solitary confinement were extremely
cost efficient it could not be a basis for overriding the prohibition on denying
minimal life necessities. It would be cost efficient to starve all prisoners, but the
Punishments Clause would not permit it. Cost efficiency is simply one of the
multiple policy goals that solitary confinement fails to advance.
Second, the evidence does not show that solitary confinement reduces
institutional violence. A study performed in 2006 found solitary confinement units
had no effect on prisoner-on-prisoner violence in Arizona, Illinois, and Minnesota
and only limited effect on prisoner-on-staff violence in Illinois, no impact in
Minnesota, and caused an increase in such violence in Arizona.232 A study in
California also found that solitary confinement units were associated with
increased violence levels.233 As will be discussed further, by June 2012
Mississippi witnessed a 50% decrease in violence after eliminating most of its
solitary confinement units and Maine witnessed no increase in violence despite
70% reduction of such units.234
Finally, solitary confinement has not proved to be an effective means of
rehabilitating the prisoner or deterring future crime. The fact that rather than
helping to rehabilitate solitary confinement actually may cause serious physical
and psychological deterioration has been discussed previously. Studies also show
229

Geoffrey A. Gaskins, M.Div. Project Director, California Interfaith Campaign on Solitary
Confinement, Comments to the June 29, 2012 Hearing before the Senate Judiciary Committee on the
Constitution, Civil Rights and Human Rights, 4, 139. [Statements submitted for Congressional
Hearing]
230

Written Statement of the ACLU Before the United States Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights at 7, Jun. 19, 2012, Statements to Congress at 30.
231

See id.

232

Chad S. Briggs, et al., The Effect of Supermaximum Security Prisons on Aggregate Levels of
Institutional Violence, 41 CRIMINOLOGY 1341, 1341-42, 1365-66 (2006).
233
Keramet Reiter, Parole, Snitch, or Die: California’s Supermax Prisons & Prisoners, 1987-2007 4446 (2010) cited by Written Statement of the ACLU Before the United States Judiciary Subcommittee
on the Constitution, Civil Rights, and Human Rights at 7, Jun. 19, 2012, Statements to Congress at
30.
234

See infra V(B).

49
that prisoners who reenter society directly from solitary confinement have a higher
recidivism rate than those who spend time in the general population after solitary
confinement and before release. The differential in a national study was 64% v.
41%.235 Also in a study of inmates released over a one year period in Washington
that controlled for criminal history and mental health, those that had been assigned
to a supermax facility were significantly more likely to commit felonies and crimes
against individuals.236
Indeed, the evidence suggests that solitary confinement may make the
public less safe, because such isolation may “severely impair . . . the prisoners’
capacity to reintegrate into the broader community upon release from
imprisonment.”237 As one expert noted, “95% of all incarcerated individuals are
eventually released, some directly out of [solitary confinement] settings. We have
succeeded in making those individuals as sick, as internally chaotic, as we possibly
can.”238
B. SUCCESSFUL AND EXPERIMENTAL MODELS
As these negative effects of solitary confinement have become
increasingly publicized and litigated, officials in some places have taken note and
attempted reforms. This section will examine three examples, Britain, Maine, and
Mississippi.
Britain
Britain began its reforms at approximately the same time that the United
States was beginning its dive into more and more use of solitary confinement.
235

Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s
Prisons (2006), http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf.
236

D. Lovell et al., Felony and Violent Recidivism Among Supermax Prison Inmates in Washington
State: A Pilot Study, University of Washington. “A 2007 study of Washington State’s prison
population found that 69% of those who were released directly to the community from solitary—a
dishearteningly regular practice—committed new crimes that landed them back in jail within three
years, compared with 46% of those who had been allowed to readjust to the general prison population
before release.” Solitary Confinement is Cruel and Ineffective: Isolating inmates inflicts permanent
mental harm. The practice must be curbed, SCIENTIFIC AMERICAN, July 29, 2013.
237
Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol'y 325, 333
(2006).
238

Maine ACLU statement to congress at 4 quoting Stuart Grassian, M.D., An Act to Ensure Humane
Treatment for Special Management Prisoners Testimony: Hearing on LD 1611 before the Joint
Committee on Criminal Justice and Public Safety, 124th Maine Legislature (Feb. 17, 2010).

50

BENNION

Thus it is a particularly helpful example in terms of looking at the longer-term
effects of reform.
In the 1970s the nation was dealing with a severe violence problem in its
prisons and was making heavy use of solitary confinement. Because the costs
were so high and the method did not seem to help decrease violence, authorities
opted for reform. The philosophical basis for the new approach was “the simple
observation that prisoners who are unmanageable in one setting often behave
perfectly reasonably in another.”239 Officials decided to focus on violence
prevention rather than punishment for past violent behavior. “The British noticed
that problem prisoners were usually people for whom avoiding humiliation and
saving face were fundamental and instinctive. When conditions maximized
humiliation and confrontation, every interaction escalated into a trial of strength.
Violence became a predictable consequence.”240
Authorities found that they were able to reduce prison violence by giving
prisoners increased freedoms, incentives, and opportunities rather than threats of
harsher punishments and restraints. A New Yorker article explained:
They reduced isolation and offered them
opportunities for work, education, and special
programming to increase social ties and skills.
The prisoners were housed in small, stable units
of fewer than ten people in individual cells, to
avoid conditions of social chaos and
unpredictability. In these reformed “Close
Supervision Centres,” [sic] prisoners could
receive mental-health treatment and earn rights
for more exercise, more phone calls, “contact
visits,” and even access to cooking facilities.
They were allowed to air grievances. And the
government set up an independent body of
inspectors to track the results and enable
adjustments based on the data.
The results have been impressive. The
use of long-term isolation in England is now
negligible. In all of England, there are now
fewer prisoners in “extreme custody” than there
are in the state of Maine.241

239

Gawande supra n.82.

240

Id.

241

Id. (emphasis added).

51
The final comment above regarding England (with a population of 50
million) having fewer prisoners in solitary confinement than the state of Maine
(with a population of 1.2 million) was actually one of the factors that spurred a
movement for change in Maine.242
Maine
When initial attempts to pass legislation reforming solitary confinement
policies in Maine failed, the legislature authorized a study of the issue by
representatives from both the Maine Department of Health and Human Services
and the Maine Department of Corrections. The study included the following
findings:
•

Prisoners were subjected to solitary confinement for “extraordinary”
periods of time while officials investigated whether the prisoner was the
victim or the perpetrator of a particular offense;

•

Prisoners were sometimes kept in solitary confinement simply because the
prison could not find a bed for them in a general population unit;

•

The prison underutilized alternative sanctions and incentives for
controlling behavior, which led to overuse of solitary confinement;

•

Prisoners were not provided with assistance in responding to accusations
of rule- breaking, which was especially difficult for prisoners with mental
illness or cognitive impairment;

•

A number of individuals with apparent symptoms of serious mental illness
were housed in the Special Management Unit, despite policies prohibiting
such housing;

•

The prison had too few mental health staff, and mental health screenings
and evaluations were inadequately documented;

•

The report noted that reforms might have costs, but that those costs needed
to be viewed in light of the countervailing costs of recidivism, harm to
communities, public safety, and “the simple humanity of what we do.”243

As a consequence of the study, a newly appointed Corrections
Commissioner implemented a series of reforms to limit the use of solitary
242
243

ACLU of Maine at 3, Comments to Congressional Committee at 15.

ACLU Maine 8-9 statements to Congress 20-21 quoting Final Report of Review of Due Process
Procedures in Special Management Units at the Maine State Prison and the Maine Correctional
Center 4-13 (Mar. 2011).

52

BENNION

confinement both in terms of the number of prisoners and the length of each stay.
Those reforms included the following:
•

Solitary confinement in Maine is now reserved for the most serious
offenses, and most prisoners are punished in their own units (by losing
privileges or being confined to their own cell within the general
population);

•

A prisoner cannot be sent to the Special Management Unit for more than
three days without the approval of the Commissioner himself;

•

When a prisoner is sent to the Special Management Unit, the bed in
general population remains open until the inmate returns;

•

Prisoners in the Special Management Unit have the opportunity to have
their punishment time cut in half through good behavior;

•

Prisoners in the Special Management Unit have an opportunity to interact
with other prisoners and with mental health staff in a group setting, and
they have an opportunity to attend group religious services. Attendance in
group treatment sessions earns the prisoner additional recreation time,
which can be used indoors or outdoors;

•

Prisoners are more closely monitored for changes in mental health status;

•

Prisoners in the Special Management Unit have access to televisions,
radios and reading material, which alleviate some of the oppressive
qualities of isolation.244

These changes resulted in a 70% reduction of the use of solitary
confinement in the Maine State Prison—with no accompanying increase in
violence toward prisoners or guards.245
Mississippi
In Mississippi, Unit 32 was a 1,000 bed maximum security facility where
all inmates were in lockdown in single cells for 23 to 24 hours a day. Lawsuits
were pressuring the state to improve conditions there and in the spring and summer
of 2007 violence culminated with three homicides, one suicide and many
disruptive incidents. The Commissioner explained that the cultural norm of Unit
32 had become “to be disruptive as there were no incentives to change behavior.
As one offender told me ‘you took all our hope and we have nothing to lose.’”246
244

ACLU of Maine at 9; Statements to Congress at 21.

245

Id.

246

Commissioner Christopher Epps, Written Testimony, Public Hearing June 19 2012, 1-2,
http://www.judiciary.senate.gov/pdf/12-6-19EppsTestimony.pdf.

53
The Commissioner was convinced change was necessary by the
deteriorating and dangerous environment as well as by the “increased litigation.”
Partnering with experts form the National Institute of Corrections and the
American Civil Liberties Union, a classification model was developed using
objective criteria for placement in administrative segregation and requiring an
individualized plan so that every prisoner understood what steps he must take to be
released from solitary and how to increase his privileges. Counseling and
education programs were implemented—including group counseling with those in
solitary by using some innovative methods of restraint to ensure safety. Special
steps were taken to better care for the needs of mentally ill, including employing
specially trained correctional officers for those units housing them.247 Group
recreational and congregate dining opportunities were also provided to those that
had been in 23-24 hour isolation.248
Due to these types of reforms, Mississippi was able to close Unit 32 in
2010 resulting in annual savings of approximately $5.6 million. Those housed in
solitary confinement dropped by 75.6% between 2007 and 2012. As of June 2012,
Mississippi housed 316 prisoners in solitary confinement units—down from 1,300
in 2007. Those 316 constitute 1.4% of the Mississippi prison population. This
reduction not only did not cause more violence—there was a 50% drop in violent
incidents that the Commissioner credits to “[t]he administrative segregation
reduction along with the implementation of faith-based and other programs.”249
He also credited their 27% recidivism rate over a three-year period (one of the
lowest in the country) as due to the programs implemented in the wake of these
reforms, including “Adult Basic Education, vocational school, alcohol and drug
programs, fatherhood education, and pre-release programs, as well as our reentry
programs.”250
In oral testimony before a Senate committee, Commissioner Epps testified
that there were three keys to his reforms. First, there must be a genuine,
documented classification system. Second, there must be rehabilitative programs
in place. Third, leadership must have the correct vision of who belongs in solitary
confinement—in Mississippi, he said, any prisoner’s placement in solitary has to
be approved by himself and a deputy director.251 Having strict guidelines for
247

Id.

248

Amnesty, statements to congress at 106.

249

Commissioner Christopher Epps, Written Testimony, Public Hearing June 19 2012, 3,
http://www.judiciary.senate.gov/pdf/12-6-19EppsTestimony.pdf.
250
251

Id.

Commissioner Christopher Epps, Oral Testimony, June 19 2012,
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6517e7d97c06eac4ce9f60b09625ebe8.

54

BENNION

placing people in solitary confinement, he explained, can help distinguish between
“who you are afraid of” versus “who you are mad at.”252 Only the former, he
implied, should spend anytime in isolation units.

VI.
CONCLUSION: PROPOSED CHANGES AND REAWAKENING TO REHABILITATION
If you treat people like animals, that’s exactly
the way they’ll behave.
(Commissioner of Mississippi’s Corrections
Christopher Epps) 253
From the above examples it is clear that there are many avenues a state
could take to improve conditions and outcomes in this nation’s prisons. States
should be free to experiment with a wide variety of approaches, but “[t]here are
limits to which a [state] may conduct experiments at the expense of the dignity and
personality of the individual.”254 What are those limits? What are the minimum
reforms necessary to avoid cruel and unusual punishment in the context of solitary
confinement?
For a system of solitary confinement to survive Eighth Amendment
scrutiny, it cannot deny a minimum human necessity—creating environments that
present a high risk of severe and unnecessary harm denies a minimum human
necessity. It may be necessary for institutional safety to put someone temporarily
in a cell by themselves—but being housed alone should not entail denial of access
to meaningful social relationships, nor should it deny access to all rehabilitative
programs, nor should it require excessive sensory deprivation.
Experts who have studied prisoners in solitary confinement have explained
that: “Human beings require some degree of social interaction and productive
activity to establish and sustain a sense of identity and to maintain a grasp on
reality.”255 And “isolation does not need to be complete in order to be dangerously

252
Commissioner Christopher Epps, Written Testimony, Public Hearing June 19 2012, 3,
http://www.judiciary.senate.gov/pdf/12-6-19EppsTestimony.pdf..
253

Erica Goode, Prisons Rethink Isolation Saving Money, Lives, and Sanity, NY TIMES, Mar. 10,
2012, http://www.nytimes.com/2012/03/11/us/rethinking-solitaryconfinement.html?pagewanted=all&_r=0.
254
Poe v. Ullman, 367 US 497, 555 (1961) (Harlan, J. dissenting, quoting Skinner v. State of
Oklahoma, 316 US 535, 546 (1942) (Jackson, J. concurring)).
255

ACLU of Maine, Statements for Congressional Hearing 16 quoting An Act to Ensure Humane
Treatment for Special Management Prisoners Testimony: Hearing on LD 1611 before the Joint

55
debilitating; it is the absence of “meaningful” social interaction that destroys a
person’s ability to cope. The occasional sight of a guard or sound of a distant
human voice does not qualify, and the increased use of modern technology
(surveillance cameras, timed lights, and remote locks) … have only added to
prisoners’ isolation.”256 As demonstrated by the science, extreme isolation and
sensory deprivation measures put all inmates at a high risk of severe harm by
denying basic human necessities. As demonstrated by the Britain, Maine, and
Mississippi examples, such steps are also counterproductive to any legitimate
policy goals.
Whether “meaningful social relationships” are provided through regular
counseling, group therapy, allowing outside visitors, participation in rehabilitation
programs that involve human interaction, or allowing prisoners to interact in other
ways should be left to state and prison authorities within the bounds of what
science continues to indicate is humane. Likewise, precisely how sensory
deprivation issues are met should not be dictated by the Constitution, but given the
current science it is likely this would require more time outside of the cell, some
opportunity for meaningful participation in rehabilitative programs, and some time
outdoors in daylight hours.257
Finally, even under these improved conditions, solitary confinement
should not be indefinite (which seems to needlessly add to a prisoner’s stress and
risk of decline),258 nor last for an unreasonable length of time. Studies have shown
that even when there is not total isolation, increased time spent with a restricted
group of people in restricted circumstances will increase the risk of deleterious
effects.259 The Supreme Court has likewise acknowledged that “the length of
Committee on Criminal Justice and Public Safety, 124th Maine Legislature (February 17, 2010)
(statement of Terry Kupers, M.D., M.S.P.).
256

ACLU of Maine, Statements for Congressional Hearing 16 citing expert testimony from Dr.
Grassian and Dr. Kupers.
257

See, e.g., supra III(B).

258

See Maximilienne Bishop, Supermax Prisons: Increasing Security or Permitting Persecution?, 47
Ariz. L. Rev. 461, 469 (2005) (Explaining that even for the psychologically resilient “severe
psychological pain … results due to prolonged solitary confinement, especially if the isolation is
indefinite in duration,”); Robert M. Ferrier, "an Atypical and Significant Hardship": The Supermax
Confinement of Death Row Prisoners Based Purely on Status-A Plea for Procedural Due Process, 46
Ariz. L. Rev. 291, 303 (2004)(“Health professionals and American courts have recognized that
indefinite solitary confinement leads almost inevitably to serious, negative psychological effects for
almost any inmate.”); Thomas B. Benjamin and Kenneth Lux, Constitutional and Psychological
Implications of the Use of Solitary Confinement: Experience at the Maine State Prison, 9
Clearinghouse Rev. 83 (1975) (finding that almost every prisoner in an isolation unit in Maine being
held indefinitely had attempted suicide besides other self-destructive behavior.).
259

See supra III(B).

56

BENNION

confinement cannot be ignored in deciding whether the confinement meets
constitutional standards.”260
However, science currently provides no clear basis for setting a precise
day that is too long. It has been established that seven days in isolation is
sufficient to cause a decline in brain activity.261 “Mental health experts conclude
that no study of the effects of solitary confinement that lasted longer than sixty
days failed to find evidence of negative psychological effects.”262 And “for just
about all prisoners, being held in isolated confinement for longer than three months
causes lasting emotional damage if not full-blown psychosis and functional
disability.”263 But these studies were not performed under the modified conditions
that this Article argues are necessary to meet constitutional standards. The U.N.
Special Rapporteur on Torture, who advocates banning prolonged solitary
confinement in the U.S. and elsewhere, admitted that he “more or less arbitrarily
defined that as anything beyond 15 days.”264
Rather than set an arbitrary number as a Constitutional standard, states
should evaluate the risk of physical and mental decline to their inmates given their
own solitary confinement policies and set reasonable boundaries of which inmates
are aware. Inmates should know why they are being housed in restricted
conditions, for how long, and any steps necessary on their part to achieve more
freedoms. This would alleviate the unnecessary stress and increased risk of
decline caused by indefinite confinement, as well as address due process concerns
beyond the scope of this Article.265
These reforms would still allow great room for state experimentation
without crossing the constitutional boundaries drawn by the Eighth Amendment.
The reforms would also immeasurably improve the mental and physical health of
inmates. The consequences of this improved health, as demonstrated by
Mississippi, may include reducing prison violence and recidivism—thus promoting
safer prisons and a safer public. By reducing the unnecessary use of solitary

260

Hutto v. Finney, 437 U.S. 678, 686 (1978).

261

Stuart Grassian, Psychiatric Effects of Solitary Confinement, 20 (1993).

262

“Mental health experts conclude that no study of the effects of solitary confinement that lasted
longer than sixty days failed to find evidence of negative psychological effects.” Jules Lobel,
Prolonged Solitary Confinement and the Constitution, 11 U of Pa. J. of Const. L. 115, 118 (2008).
263

Terry A. Kupers, What to do with the survivors? Coping With the Long-Term Effects of Isolated
Confinement, Crim. Justice & Behavior, Vol. 35, No. 8 Aug. 2008, 1005-06.
264
265

Quoted in Sal Rodriguez , Solitary Watch (2012), http://solitarywatch.com/facts/faq/ .

See Angela A. Allen-Bell, Perception Profiling & Prolonged Solitary Confinement Viewed
Through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become
Visually Challenged, and Justice Becomes Legally Blind, 39 Hastings Const. L.Q. 763, 766 (2012);
Wilkinson v. Austin, 545 U.S. 209 (2005).

57
confinement through stricter time boundaries, states would also save money and
save lives.