The Constitutional Law of Isolated
Confinement 1
John Boston
Prisoners’ Rights Project
New York City Legal Aid Society
May 31, 2012
Contents

1.
2.
3.
4.

Isolation and the Courts .................................................. 1
Aggravating Circumstances ........................................... 9
Vulnerable Prisoners .................................................... 14
Due Process Concerns .................................................. 16
a. “Atypical.” ................................................................... 20
b. “Significant.” ............................................................... 22
c. Individuals’ Circumstances—Do They Matter? .......... 25
d. What’s the Conditions Baseline? ................................ 26
e. Duration. ...................................................................... 27
f. Length of Sentence....................................................... 29
g. Purpose of Confinement. ............................................. 30
h. The Process Due. ......................................................... 31
5. Recent Developments ................................................... 34
1.

Isolation and the Courts
Prisoners and their advocates have been litigating about
isolated confinement 2 as long as there has been prison litigation. 3
1

This article is expanded and updated from an earlier version
prepared for the conference on Challenging Supermax Prisons
hosted by the National Prison Project of the American Civil
Liberties Union, February 23-24, 2000.
2
I use this term to refer to confinement that involves both

1

The results have been mixed. There has been significant success
in mitigating the worst excesses of such confinement: filthy and
degrading conditions, lack of lighting and ventilation, deprivation
of medical care, routine use of “strip cells,” etc. Litigation has
been far less successful in challenging the core concerns about
isolated confinement: the deprivation of human contact and other
sensory and intellectual stimulation.
There is a certain irony to this result, since the disastrous
consequences of the Nineteenth Century solitary confinement
regimes were so well known and so uncontroversial as to be
treated as common knowledge by the Supreme Court:
A considerable number of 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. 4
Modern courts have not denied these consequences. One
well-known decision observed that “the record shows, what
anyway seems pretty obvious, that isolating a human being from
other human beings year after year or even month after month can
cause substantial psychological damage, even if the isolation is not
total.” 5 The court added that “there is plenty of medical and

separation from the general prison population (i.e., segregation)
and a substantial degree of restriction of contact even with other
separated prisoners (though not necessarily as rigorous as the
Nineteenth Century regimes of solitary confinement).
3
See, e.g., Hancock v. Avery, 301 F.Supp. 786, 791-92
(M.D.Tenn. 1969) (condemning confinement in cell without light
or ventilation).
4
In re Medley, 134 U.S. 160, 168 (1890) (striking down a statute
retroactively imposing solitary confinement as an ex post facto
law).
5
Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988),

2

psychological literature concerning the ill effects of solitary
confinement (of which segregation is a variant). . . .” 6 Other
courts have made similar observations. 7 The district court in the
cert. denied, 488 U.S. 908 (1989).
6
Id. at 1316 (citing Stuart Grassian, M.D., Psychopathological
Effects of Solitary Confinement, 140 Am.J.Psychiatry 1450
(1983)). A number of courts have relied on this article and on
Stuart Grassian and Nancy Friedman, Effects of Sensory
Deprivation in Psychiatric Seclusion and Solitary Confinement, 8
Int’l J. of Law and Psychiatry 49 (1986). Additionally, Craig
Haney, Mental Health Issues in Long-term Solitary and
“Supermax” Confinement, 49 Crime & Delinq. 124, 130–141
(2003), and other testimony and work by Dr. Haney and
associates, have also been repeatedly cited to the same effect.
7
See Hutchinson v. Florida, ___ F.3d ___, 2012 WL 1345599, *7
(11th Cir., Apr. 19, 2012) (concurring opinion) (stating “the
psychological effects of spending extended periods in solitary
confinement—commonly known as SHU syndrome—may impair
an inmate's mental capabilities to the extent that his active
participation in litigation becomes impossible”; citing Dr.
Grassian’s and Dr. Haney’s research); Miller ex. rel. Jones v.
Stewart, 231 F.3d 1248, 1252 (9th Cir. 2000) (“. . . [I]t is well
accepted that conditions such as those present in [isolation in death
row unit] can cause psychological decompensation to the point that
individuals may become incompetent”; citing affidavits of
psychiatric experts), stay vacated, 531 U.S. 986 (2000); U.S. v.
Bout, ___ F.Supp.2d ___, 2012 WL 653882, *3 (S.D.N.Y., Feb.
24, 2012) (“[I]t is well documented that long periods of solitary
confinement can have devastating effects on the mental well-being
of a detainee.”) (quoting U.S. v. Basciano, 369 F.Supp.2d 344,
352-53 (E.D.N.Y. 2005), which cites Dr. Haney’s work); U.S. v.
Corozzo, 256 F.R.D. 398, 401-02 (E.D.N.Y. 2009) (“Substantial
research demonstrates the psychological harms of solitary
confinement and segregation”; citing Dr. Grassian’s and Dr.
Haney’s research in refusing to impose isolating sentencing
conditions); Freeman v. Berge, 283 F.Supp.2d 1009, 1016
(W.D.Wis. 2003) (“Since the court of appeals decided Bono [v.
Saxbe], evidence has accumulated regarding the harm that

3

equally well-known Pelican Bay SHU litigation concluded after
hearing testimony from experts in corrections and mental health,
that “many, if not most, inmates in the SHU experience some
degree of psychological trauma in reaction to their extreme social
isolation and the severely restricted environmental stimulation in
SHU.” 8 I know of no decision that has rejected this conclusion—
though some courts have denied or minimized its significance.
Thus, in Davenport v. DeRobertis, immediately after
acknowledging the “literature concerning the ill effects of solitary
confinement,” the court (per Judge Posner, well-known for
applying economic analyses to legal questions) proceeded to
minimize it: “Of course, it is highly probable that the experience
of being imprisoned inflicts psychological damage whether or not
the prisoner is isolated, so it is only the marginal psychological
damage from segregation that is relevant. And the infliction of
disutility, to borrow a convenient economic term, is one of the
objectives of criminal punishment. . . .” 9 An even more dismissive

depriving inmates of social interaction and sensory stimulation can
cause.” (citing work of Grassian and Haney)), reconsideration
denied, 2003 WL 23208945 (W.D.Wis., June 19, 2003); McClary
v. Coughlin, 87 F.Supp.2d 205, 211 (W.D.N.Y. 2000) (relying on
testimony of Dr. Grassian in upholding jury verdict for prolonged
segregation without due process, though granting remittitur re
amount of damages), aff’d, 237 F.3d 185 (2d Cir. 2001); Langley
v. Coughlin, 715 F.Supp. 522, 540 (S.D.N.Y. 1989) (citing Dr.
Grassian's affidavit re effects of SHU placement on disordered
individuals); Baraldini v. Meese, 691 F.Supp. 432, 446-47 (D.D.C.
1988) (citing Dr. Grassian's testimony re sensory disturbance,
perceptual distortions, and other psychological effects of
segregation), rev'd on other grounds, 884 F.2d 615 (D.C.Cir.
1989); Bono v. Saxbe, 450 F.Supp. 934, 946 (“[p]laintiffs'
uncontroverted evidence showed the debilitating mental effect on
those inmates confined to the control unit.”), aff'd in part and
remanded in part on other grounds, 620 F.2d 609 (7th Cir. 1980).
8
Madrid v. Gomez, 889 F.Supp. 1146, 1235 (N.D.Cal. 1995).
9
Id.
The bottom line in the Davenport case is that the appeals

4

attitude is displayed in a later decision of the Massachusetts
Supreme Judicial Court, which held that evidence that isolated
confinement can cause “serious psychiatric harm” did not raise an
issue of disputed fact requiring a trial. Rather, the court simply
observed that prior federal court decisions evinced a “widely
shared disinclination” or a “reluctan[ce]” to strike down isolated
confinement, and that one of its own older decisions upheld
confinement in somewhat harsher conditions. It viewed these
decisions as sufficiently authoritative to obviate the need even to
consider the proffered evidence of psychological harm. 10 It stated:
“. . . [O]ther courts have concluded, and we agree that, whether
prison conditions are sufficiently harmful to establish an Eighth
Amendment violation, is a purely legal determination for the court
to make.” 11 This refusal to consider the facts has been justly
criticized: “While the ultimate question of whether the conditions
alleged in the case at bar and the harms that they bring about
amount to an Eighth Amendment violation is a question of law (or
more likely, a mixed question of law and fact), surely the data on
court upheld the lower court's requirement that prisoners in a
segregation unit receive a minimum of five hours of out-of-cell
recreation a week, but held that the requirement of a minimum of
three showers a week (the prisoners received one a week) lacked
support either in the record or in law. 844 F.2d at 1314-16.
10
Torres v. Commissioner of Correction, 427 Mass. 611, 614-15,
695 N.E.2d 200, 203-04 (1998), cert. denied, 525 U.S. 1017
(1998) (quoting Jackson v. Meachum, 699 F.2d 578, 583 (1st Cir.
1983), and Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir.
1983), cert. denied, 466 U.S. 974 (1984)).
The court's reference to its own earlier decision is a bit
disingenuous. That case held only that the Eighth Amendment
does not forbid confinement behind a solid door for no more than
15 days as punishment for disciplinary offenses by prisoners
already in segregation. (By contrast, prisoners could be sentenced
to the unit at issue in Torres for up to ten years.) The trial court
judge had held that the degree of sensory deprivation at issue did
not cause psychological harm. Libby v. Commissioner of
Correction, 385 Mass. 421, 432 N.E.2d 486, 493-94 (1982).
11
Torres, 427 Mass. at 614.

5

which that conclusion must be based is a factual question.” 12
The result in Torres is consistent with the general refusal
of courts to find isolated confinement unconstitutional absent
seriously aggravating circumstances. 13 In this regard, the highwater mark for prisoner advocates to date was the Supreme Court’s
decision in the Arkansas prison litigation, which upheld the lower
court’s placement of a 30-day limit on punitive segregation, but
did so only in light of the inadequate diet, overcrowding, and
misconduct by prison staff demonstrated by the record in that
case. 14 Any hope that this decision might ultimately lead to a
constitutional limit on the use or duration of isolated confinement
per se was quickly disappointed. This point is best illustrated by
the decision in the Pelican Bay litigation, which presents both a
thorough examination of the issues on a substantial record and a
sympathetic perspective towards the affected prisoners:
Here, the record demonstrates that the conditions of
extreme social isolation and reduced environmental
stimulation found in the Pelican Bay SHU will likely
inflict some degree of psychological trauma upon most
inmates confined there for more than brief periods.
Clearly, this impact is not to be trivialized; however, for
12

Chao v. Ballista, 772 F.Supp.2d 337, 357 (D.Mass. 2011).
See, e.g., In re Long Term Administrative Segregation, 174 F.3d
464, 471–72 (4th Cir. 1999) (administrative segregation with 23hour lockup, no radio or TV, five hours of exercise a week, and
exclusion from all programs did not violate the Eighth Amendment
because it did not deny a “basic human need”; “A depressed
mental state, without more, does not rise to the level of the ‘serious
or significant physical or emotional injury’ that must be shown”
under the Eighth Amendment.); Bruscino v. Carlson, 854 F.2d
162, 166–67 (7th Cir. 1988) (holding that conditions in Marion
federal penitentiary “control unit” and “permanent lockdown” at
Marion federal penitentiary, including long lock-in times, use of
restraints when out of cell, restricted access to law libraries, and
digital rectal searches were “sordid and horrible” but not
unconstitutional).
14
Hutto v. Finney, 437 U.S. 678, 686-87 (1978).
13

6

many inmates, it does not appear that the degree of
mental injury suffered significantly exceeds the kind of
generalized psychological pain that courts have found
compatible with Eighth Amendment standards. While a
risk of a more serious injury is not non-existent, we are
not persuaded . . . that the risk of developing an injury to
mental health of sufficiently serious magnitude . . . is
high enough for the SHU population as a whole, to find
that current conditions in the SHU are per se violative of
the Eighth Amendment with respect to all potential
inmates. 15
Nor have courts been willing to impose any fixed time
limits on isolated confinement as a constitutional matter, 16 though
they will enforce statutory or regulatory limits. 17 Administrative
segregation, which is supposed to be preventive and therefore
forward-looking, has usually been held to be permissible for as
long as the preventive justification exists, 18 though the Supreme
Court has stated that “administrative segregation may not be used
15

Madrid v. Gomez, 889 F.Supp. 1146, 1265 (N.D.Cal. 1995)
(emphasis in original).
16
Torres v. Commissioner of Correction, 427 Mass. 611, 614–15,
695 N.E.2d 200 (1998).
17
See, e.g., Tate v. Carlson, 609 F. Supp. 7, 10 (S.D.N.Y. 1984)
(13-month segregation confinement violated federal prison
regulations requiring that prisoners be released to general
population or transferred within 90 days); Libby v. Commissioner
of Correction, 385 Mass. 421, 432 N.E.2d 486, 490 (Mass. 1982)
(noting 15-day limit on “isolation time” for inmates committing
further offenses in segregation).
18
See, e.g., In re Long Term Administrative Segregation, 174 F.3d
464, 471 (4th Cir. 1999) (Five Percenters, considered a “Security
Threat Group” by officials, could be kept in segregation
indefinitely or until they renounced their affiliation); Smith v.
Shettle, 946 F.2d 1250, 1254 (7th Cir. 1991); Bono v. Saxbe, 620
F.2d 609, 614 (7th Cir. 1980); Todd v. Commissioner of
Correction, 27 Mass.App. 1199, 543 N.E.2d 1152, 1153–54
(Mass.App. 1989).

7

as a pretext for indefinite confinement of an inmate.” 19 Serious
past misconduct has been held to justify continued administrative
segregation for substantial periods, 20 but not indefinitely. 21 Yet I
know only of a single case, and that an unusual one, in which a
court has squarely held that segregation was unconstitutional
because its duration outran the justification for it. 22
Several

recent

decisions

19

provide

some

hope

for

Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983).
Mims v. Shapp, 744 F.2d 946, 951–52 (3d Cir. 1984) (five-year
confinement of a prisoner who had killed an officer did not deny
due process).
21
Sheley v. Dugger, 833 F.2d 1420, 1427 (11th Cir. 1987)
(allegation of 10-year segregation after escape and weapons
violations, with no further justification, stated a due process
claim).
22
In Koch v. Lewis, 216 F.Supp.2d 994, 1006-07 (D.Ariz. 2001),
vacated as moot, 399 F.3d 1099 (9th Cir. 2005), the district court
held that evidence of mere gang membership, without overt acts,
admissions, or gang-related offenses, was too unreliable to justify
indefinite confinement, though it might justify short period of
confinement (the plaintiff had been segregated for five and a half
years when he was ordered released).
In Morris v. Travisono, 549 F. Supp. 291, 295–96 (D.R.I.
1982), aff’d, 707 F.2d 28 (1st Cir. 1983), the court held that a
prisoner who had murdered a correction officer eight and a half
years previously could not be retained in segregation based on
such conduct as refusing to stand up in court and sleeping at the
wrong end of the bed (justifications the court found pretextual),
but it did so under the terms of a previously entered consent
judgment and not as a direct constitutional matter. In U.S. v. Bout,
___ F.Supp.2d ___, 2012 WL 653882 (S.D.N.Y., Feb. 24, 2012),
discussed below in § 5, the court found that parts of the
government’s justification for potentially indefinite segregation
that had already extended for 15 months was too attenuated in
time, but did so as part of an overall finding that the government’s
various arguments did not provide a rational basis for the
segregation.
20

8

meaningful limits on the use of isolated confinement. These are
discussed at the end of this article. Meanwhile I will discuss areas
in which narrower challenges to isolation have had greater success.
2.

Aggravating Circumstances
Isolated confinement has often been associated with other
forms of abusive treatment, including physical abuse, deprivation
of clothing, deprivation of medical care, unsanitary conditions,
lack of opportunity for personal hygiene, etc. In such instances
courts have generally responded by striking down the extreme
practices, 23 since they appear to be unnecessary to and readily
separable from the isolation regime itself, or are simply too
inhumane or disgusting to be countenanced in civilized society.
Thus numerous early prisoners’ rights decisions—and some not so
early—invalidated segregation conditions that were clearly
intended to inflict the maximum degradation and deprivation on
unruly prisoners. 24 Courts have also condemned gross lack of
23

Thus, in the Pelican Bay litigation, the court held that plaintiffs
were entitled to injunctive relief against excessive force, denial of
medical and mental health care, while declining to enjoin the
overall regime of isolation and idleness. Madrid v. Gomez, 889
F.Supp. at 1279-82.
24
See, e.g., Surprenant v. Rivas, 424 F.3d 5, 19–20 (1st Cir. 2005)
(upholding jury verdict for the plaintiff based on evidence that he
was allowed only a five-minute shower every day, was denied all
hygienic products, had access to water, including to flush his toilet,
only at the guards’ discretion, and was subjected daily to multiple
strip searches that required him to place his unwashed fingers into
his mouth); Mitchell v. Maynard, 80 F.3d 1434, 1442 (10th Cir.
1996) (allegations that plaintiff was stripped of his clothing, placed
in a concrete cell with no heat, provided with no mattress,
blankets, or bedding of any kind, deprived of his prescription
eyeglasses, not allowed out-of-cell exercise, not provided with
writing utensils, not provided adequate ventilation or hot water,
and allowed minimal amounts of toilet paper supported a claim of
Eighth Amendment violation); Blissett v. Coughlin, 66 F.3d 531,
537 (2d Cir. 1995) (jury verdict upheld for prisoner placed naked
in a feces-smeared mental observation cell for eight days);

9

sanitation and oppressive physical conditions such as excessive
heat, cold, lack of ventilation, etc., which may have resulted from
neglect and indifference rather than malice.25 Many serious
Chandler v. Baird, 926 F.2d 1057, 1063 (11th Cir. 1991)
(allegation of confinement in undershorts without bedding, toilet
paper, running water, soap, and toothpaste in a cold and filthy cell
stated an Eighth Amendment claim); Kirby v. Blackledge, 530
F.2d 583, 586–87 (4th Cir. 1976) (cell with no bedding, no light,
and a hole in the floor for a toilet violated the Eighth Amendment);
Kimbrough v. O’Neil, 523 F.2d 1057, 1059 (7th Cir. 1975)
(alleged three-day confinement in a cell without toilet, water,
bedding or mattress, soap or toilet paper stated an Eighth
Amendment claim), aff’d on other grounds, 545 F.2d 1059 (7th
Cir. 1976) (en banc); LaReau v. MacDougall, 473 F.2d 974, 978
n.2 (2d Cir. 1972) (five-day confinement with “Chinese toilet”
[hole in the floor] flushed from outside and with no means of
personal cleanliness violated the Eighth Amendment); Wright v.
McMann, 460 F.2d 126, 129 (2d Cir. 1972) (11- and 21-day
periods in unsanitary cell with no clothing, bedding, soap, toilet
paper, or heat violated the Eighth Amendment).
25
See, e.g., Gates v. Cook, 376 F.3d 323, 338–44 (5th Cir. 2004)
(affirming injunction requiring improved cell cleaning procedures,
provision of fans, ice water, and daily showers during hot weather,
added pest control measures including repairing window screens,
correction of unsanitary “ping-pong toilets,” improvement of
lighting, and enhanced mental health services); Keenan v. Hall, 83
F.3d 1083, 1090 (9th Cir. 1996) (inadequate ventilation can violate
the Eighth Amendment; “If the air was in fact saturated with the
fumes of feces, urine, and vomit, it could undermine health and
sanitation.”), amended on other grounds, 135 F.3d 1318 (9th Cir.
1998); Williams v. Adams, 935 F.2d 960, 962 (8th Cir. 1991) (13day confinement in a cell with a broken toilet leaking waste stated
a constitutional claim); McCord v. Maggio, 927 F.2d 844, 848 (5th
Cir. 1991) (confinement in a segregation cell flooded with sewage
and foul water was a “clear violation of the Eighth Amendment”);
Williams v. White, 897 F.2d 942, 944–45 (8th Cir. 1990)
(allegation of lack of ventilation and mattress infested with bugs
and insects stated an Eighth Amendment claim).

10

challenges to segregation conditions have been settled with
significant mitigation of conditions, probably because defendants
wish to avoid adverse adjudications and publicity. 26 The Hutto v.
Finney device of restricting the use of segregation itself, discussed
above, has rarely been employed.
The courts have been less willing to restrict oppressive
practices in isolated confinement for which some specific
correctional rationale is presented. Thus the complete or partial
26

Thus, in a challenge to conditions and practices in the Wisconsin
supermax facility, defendants settled with regard to conditions of
confinement, see Jones-El v. Berge, 374 F.3d 541, 543 (7th Cir.
2004) (describing history of case), after the grant of a preliminary
injunction excluding persons with mental illness from the facility.
Jones-El v. Berge, 164 F. Supp. 2d 1096, 1116–25 (W.D.Wis.
2001). In litigation about the Ohio supermax prison, the question
of prisoners’ due process rights went to the Supreme Court, but the
challenges to conditions of confinement were settled without a
court ruling on them. Wilkinson v. Austin, 545 U.S. 209, 218
(2005). A major challenge to supermax conditions in Indiana was
also settled without any ruling on the legal challenge to supermax
conditions or procedures. Isby v. Bayh, 75 F.3d 1191, 1195 (7th
Cir. 1996) (settlement “provides for a commissary, expands access
to radio and television, increases visitation and telephone rights,
makes more reading materials available and expands recreational
opportunities, allows prisoners to have more personal property and
greater access to items of personal hygiene, improves the bedding
material assigned to prisoners, decreases the intensity of twentyfour hour lights in the cells, limits the use of force by DOC
personnel, expands medical care, provides a comprehensive law
library with improved prisoner access, provides educational
opportunities and substance abuse programs when necessary, and
improves the prisoner grievance procedures”). The Jones-El and
Wilkinson settlements are discussed in more detail, along with
another settlement concerning the “Special Controls Facilities” in
New Mexico, in David C. Fathi, The Common Law of Supermax
Litigation, 24 Pace L.Rev. 675 (2004), available at
http://digitalcommons.pace.edu/plr/vol24/iss2/13.

11

deprivation of clothing, a means of humiliation and intimidation,
has been upheld in some cases where officials have argued it was
necessary to control disruptive prisoners, 27 as have drastic
restriction of out-of-cell exercise 28 and other significant
deprivations. 29

27

See, e.g., Trammell v. Keane, 338 F.3d 155, 163, 165–66 (2d
Cir. 2002) (upholding deprivation of clothing other than shorts for
two weeks to prisoner who defied ordinary disciplinary sanctions);
Williams v. Delo, 49 F.3d 442, 445–46 (8th Cir. 1995) (upholding
placement of prisoner who got into an altercation in the visiting
room and was placed for three or four days in “temporary
administrative segregation on limited property, that is, a strip cell,”
deprived of clothing, with no mattress, toothbrush, or other
hygiene items, and the water to his cell shut off. He got “three
meals a day . . . and was sheltered from the elements. While he did
not have any clothing or bedding, we have held there is no
absolute Eighth Amendment right not to be put in a cell without
clothes or bedding.”); Hawkins v. Hall, 644 F.2d 914, 917–18 (1st
Cir. 1981) (deprivation of clothing for less than 24 hours pending
medical and mental examinations upheld where ventilation,
lighting, and heat were adequate); McMahon v. Beard, 583 F.2d
172, 174–75 (5th Cir. 1978) (three-month nude confinement
without mattress, sheet, or blankets did not violate the Eighth
Amendment where the prisoner continued to present a suicide
risk). Compare Rose v. Saginaw County, 353 F. Supp. 2d 900,
919–23 (E.D.Mich. 2005) (holding unconstitutional a policy of
placing “uncooperative and disruptive” prisoners in administrative
segregation naked).
28
Bass v. Perrin, 170 F.3d 1312, 1316–17 (11th Cir. 1999)
(terming the deprivation “a rational, albeit debatable, response to
the substantial threat posed by the plaintiffs”).
29
See, e.g., Rodriguez v. Briley, 403 F.3d 952, 952–53 (7th Cir.
2005) (holding that a rule requiring segregation prisoners to stow
property in a box before leaving their cells could be enforced by
refusing to let them leave their cells, even if the cost was missed
meals and showers; the non-complying prisoner “punished
himself”).

12

In some cases, the aggravating circumstance is an extreme
of isolation. The use of solid or “boxcar” doors that interfere with
ventilation and with prisoners’ ability to communicate with staff in
emergencies has been held unconstitutional in some cases. 30 A
particularly interesting decision is U.S. v. Koch, 31 a criminal case
in which the court held that a mere six hours of confinement in a
boxcar cell to obtain a confession was unconstitutionally coercive,
and suppressed the confession. 32 Other courts have not followed
suit. In Tyler v. Black,33 the Eighth Circuit initially held that the
use of boxcar doors by itself did not violate the Eighth
Amendment, but it concluded that in the totality of the
30

Hoptowit v. Ray, 682 F.2d 1237, 1257-58 (9th Cir. 1982)
(affirming finding that solid doors that excluded nearly all fresh air
and light, limited access to medical care, and caused sanitary
problems violated the Eighth Amendment); LeMaire v. Maass, 745
F.Supp. 623, 636 (D.Or. 1990) (holding “quiet cells” with steel
doors were unconstitutional because they made it impossible to
call for medical attention), vacated and remanded on other
grounds, 12 F.3d 1444 (9th Cir. 1993); Toussaint v. McCarthy,
597 F.Supp. 1388, 1408 (N.D.Cal. 1984) (holding “quiet cells”
with closed solid doors were unconstitutional), aff'd in part and
rev'd in part on other grounds, 801 F.2d 1080, 1106-07 (9th Cir.
1986), cert. denied, 481 U.S. 1069 (1987); Bono v. Saxbe, 527
F.Supp. 1187 (S.D.Ill. 1981); Bono v. Saxbe, 450 F.Supp. 934,
946-48 (E.D.Ill. 1978), aff'd in part and remanded in part on other
grounds, 620 F.2d 609 (7th Cir. 1980); Berch v. Stahl, 373 F.Supp.
412, 421 (E.D.N.C. 1974) (limiting solid-door confinement to 15
days); see Jones’El v. Berge, 164 F.Supp.2d 1096, 1018-19 (W.D.
Wis. 2001) (citing boxcar doors in support of conclusion that
supermax conditions were unconstitutional as to prisoners with
mental illness); see also Rollie v. Kemna, 124 Fed.Appx. 471 (8th
Cir., Feb. 25, 2005) (unpublished) (holding allegation that prison
officials knew of assaults that went undetected because of double
celling behind boxcar doors stated a deliberate indifference claim).
31
552 F.2d 1216 (7th Cir. 1977).
32
Id. at 1218-19.
33
811 F.2d 424 (8th Cir. 1987), withdrawn, 865 F.2d 181 (8th Cir.
1989).

13

circumstances (the fact that the doors were closed at all times,
prisoners spent 23 hours a day in the cells for several months, and
prisoners were double celled). 34 On rehearing en banc, however,
the author of the opinion backed down from that holding, stating
that double celling had been ended after the previous opinion and
other conditions had changed, mooting the claim. 35
3.

Vulnerable Prisoners
The potential mental health consequences of isolated
confinement have been recognized at least to the extent that courts
have excluded persons with pre-existing psychiatric illness or
vulnerability from such confinement. The leading case again is the
Pelican Bay decision, which upheld SHU confinement for most
prisoners, but excepted
those who the record demonstrates are at a particularly
high risk for suffering very serious or severe injury to
their mental health, including overt paranoia, psychotic
breaks with reality, or massive exacerbations of existing
mental illness as a result of the conditions in the SHU.
Such inmates consist of the already mentally ill, as well
as persons with borderline personality disordered, brain
damage or mental retardation, impulse-ridden
personalities, or a history of prior psychiatric problems
or chronic depression. For these inmates, placing them
in the SHU is the mental equivalent of putting an
asthmatic in a place with little air to breathe.36
34

Id. at 434-35.
Tyler v. Black, 865 F.2d 181, 183-84 (8th Cir. 1989) (en banc);
see also Libby v. Commissioner of Correction, 385 Mass. 421, 432
N.E.2d 486, 493-94 (1982) (upholding up to 15 days behind
boxcar doors for misconduct in segregation).
36
Madrid v. Gomez, 889 F.Supp. at 1265; see also Casey v. Lewis,
834 F.Supp. 1447, 1548-49 (D.Ariz. 1993) (condemning
placement and retention of mentally ill prisoners in lockdown
status); Inmates of Occoquan v. Barry, 717 F.Supp. 854, 868
(D.D.C. 1989) (holding that inmates with mental health problems
must be placed in a separate area or a hospital and not in
35

14

Thus, the risk that the court found too diffuse to be
actionable as applied to the prison population as a whole was
found to constitute an Eighth Amendment violation as applied to
populations who could be shown to have identifiable pre-existing
risk factors. Several post-Madrid decisions have held similarly
concerning the housing of prisoners with mental illness in isolated
confinement. 37
As a practical matter, of course, enforcing such a view
requires adequate and unbiased mental health screening, which is
not guaranteed in a prison environment. Indeed, there may be
powerful institutional factors militating against identifying persons
at particular risk from isolated confinement. 38

administrative/punitive segregation area); Langley v. Coughlin,
715 F.Supp. 522, 540 (S.D.N.Y. 1988) (holding that psychiatric
evidence that prison officials fail to screen out from SHU “those
individuals who, by virtue of their mental condition, are likely to
be severely and adversely affected by placement there” raises a
triable Eighth Amendment issue).
37
Jones’El v. Berge, 164 F. Supp. 2d 1096, 1116–25 (W.D.Wis.
2001) (granting preliminary injunction requiring removal of
seriously mentally ill from “supermax” prison); Ruiz v. Estelle, 37
F. Supp. 2d 855, 915 (S.D.Tex. 1999) (holding “administrative
segregation is being utilized unconstitutionally to house mentally
ill inmates—inmates whose illness can only be exacerbated by the
depravity of their confinement”), rev’d and remanded on other
grounds, 243 F.3d 941 (5th Cir. 2001), adhered to on remand, 154
F. Supp. 2d 975, 984–86 (S.D.Tex. 2001); Coleman v. Wilson, 912
F. Supp. 1282, 1320–21 (E.D.Cal. 1995) (inappropriate
disciplinary treatment and placement in segregation units of
prisoners with mental illness was unconstitutional).
38
See Madrid, 889 F.Supp. at 1225 (citing evidence of prison
staff's concern—described by one expert witness as “an almost
obsessive preoccupation”—that prisoners are malingering or
manipulating in their dealings with the medical and mental health
system).

15

4.

Due Process Concerns
In upholding isolated confinement notwithstanding the
potential injury it may cause, courts give weight to prison officials’
legitimate interest in disciplining prisoners who have broken
prison rules and in preventing disruptive or assaultive actions by
prisoners who present a risk of such behavior. 39 The obvious next
question is whether prison officials are under any constitutional
obligation of care to make sure that the prisoners they place in
isolation actually merit such treatment. That is, are prisoners
entitled to procedural protections in connection with placement in
isolated confinement?
Before 1995, most courts held that punitive segregation of
any substantial duration required a Wolff 40 hearing, but that
administrative segregation required due process protections only if
state rules or regulations created a “liberty interest” by imposing
substantive limits on prison officials’ discretion.41 However, in
1995 the Supreme Court decided Sandin v. Conner, 42 which held
that 30 days of punitive segregation did not call for due process
protections because it did not constitute “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life.” 43
Sandin overturned both the law of disciplinary due process
and liberty interest analysis generally as applied to prisoners. 44 It
39

See, e.g., Madrid, 889 F.Supp. at 1263. A leading statement of
this view appears in a decision concerning conditions at the highsecurity federal penitentiary in Marion, Illinois: “The current
conditions, ghastly as they are, testify in a weird way to our
nation's aspirations to a humane criminal justice system, for they
result from forbidding murderous inmates to be executed or to be
killed or beat senseless by outraged guards; no inmate has been
killed at Marion save by another inmate.” Bruscino v. Carlson,
854 F.2d 162, 166 (7th Cir. 1988).
40
Wolff v. McDonnell, 418 U.S. 539 (1974).
41
Hewitt v. Helms, 459 U.S. 460, 468 (1983).
42
515 U.S. 472 (1995).
43
Sandin, 515 U.S. at 484.
44
The second proposition has been a point of some confusion.
Although Sandin forcefully disapproved the liberty interest

16

was promptly followed by numerous decisions holding that
prisoners are not entitled to due process protections in connection
with placement in isolated confinement even for long periods of
time. 45 It was also followed ten years later by a second Supreme
Court decision, which applied the Sandin holding to administrative
confinement in a “Supermax” prison, but which did not much
clarify the many questions that Sandin had left open because the
conditions it addressed were so draconian as to shed little light on
the boundaries of the “atypical and significant” standard: noting
the disagreement over the proper “baseline from which to measure
what is atypical and significant in any particular prison system,”
the Court said only that confinement in the subject facility
“imposes an atypical and significant hardship under any plausible
baseline.” 46 Not only were prisoners locked in their cells for 23
analysis of prison regulations, some courts understood the decision
not to abolish it but to add a second hurdle for the plaintiff. That
is, a prisoner was required to show both a state-created liberty
interest and atypical and signiticant hardship to support a due
process claim. See, e.g., Frazier v. Coughlin, 81 F.3d 313, 317 (2d
Cir. 1996). The later decision in Wilkinson v. Austin, 545 U.S. 209
(2005), stated that it had “abrogated” the parsing of regulatory
language in search of liberty interests and that “[a]fter Sandin, it is
clear that the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions
themselves ‘in relation to the ordinary incidents of prison life.’”
Wilkinson, 545 U.S. at 222-23 (quoting Sandin). Nonetheless the
Second Circuit has adhered to its view that liberty interest analysis
survives. Iqbal v. Hasty, 490 F.3d 143, 162 (2d Cir. 2007), aff’d in
part, rev’d in part, and remanded on other grounds sub nom.
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
45
See, e.g., Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (holding
that two-year placement in segregation pending investigation did
not require due process protections); Bonner v. Parke, 918 F.Supp.
1264, 1269-70 (N.D.Ind. 1996) (holding three years in segregation
was not atypical and significant).
46
Wilkinson v. Austin, 545 U.S. 209, 223 (2005).

17

hours a day; they were also barred from conversing cell to cell,
subjected to 24-hour illumination in their cells, and allowed
exercise only in a small indoor room. Further, placement was
indefinite, reviewed only annually, and prisoners held in the unit
were disqualified from parole consideration. The Supreme Court
stated: “While any of these conditions standing alone might not be
sufficient to create a liberty interest, taken together they impose an
atypical and significant hardship within the correctional context.” 47
In the absence of more useful guidance from the Supreme
Court, the lower courts are all over the map in applying the Sandin
atypical and significant standard. The most favorable outcomes
for prisoners have been in the Second Circuit, which after a series
of cases emphasizing the need for careful fact-finding concerning
the conditions of confinement, 48 has held that “the normal
conditions of SHU confinement in New York” are presumptively
not atypical and significant for confinement of 101 days or less,
but are atypical and significant if confinement extends to 305 days
or more under “the normal conditions of SHU confinement in New
York” and no aggravating factors are shown.49 For periods
47

Wilkinson v. Austin, 545 U.S. 209, 224 (2005); see Iqbal v.
Hasty, 400 F.3d 143, 163 (2d Cir. 2007) (holding that under
Wilkinson, alleged conditions including “solitary confinement,
repeated strip and body-cavity searches, beatings, exposure to
excessive heat and cold, very limited exercise, ad almost constant
lighting–as well as the initially indefinite duration of confinement”
sufficiently pled atypical and significant hardship), aff’d in part,
rev’d in part, and remanded on other grounds sub nom. Ashcroft
v. Iqbal, 556 U.S. 662 (2009); Westefer v. Snyder, 422 F.3d 570,
590 (7th Cir. 2005) (stating that Wilkinson’s liberty interest turned
exclusively on the absence of parole is “far too crabbed a reading
of the decision”; plaintiffs’ claim should not have been dismissed
even though Illinois supermax cells have windows, the doors are
mesh rather than solid steel, the exercise yard is partly outdoors,
and visiting is not as limited as in Wilkinson).
48
See, e.g,, Wright v. Coughlin, 132 F.3d 133 (2d Cir. 1998);
Giakoumelos v. Coughlin, 88 F.3d 56, 62 (2d Cir. 1996).
49
Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000). The court

18

between 101 and 305 days, the court prescribed “development of a
detailed record,” which might include “evidence of the
psychological effects of prolonged confinement in isolation and
the precise frequency of SHU confinements of varying durations,”
and which would be furthered by the appointment of counsel,
“some latitude both in discovery and in presentation of pertinent
evidence at trial,” and particularized findings by the district
court. 50 The court added that it did not exclude the possibility that
SHU confinement of less than 101 days could be found atypical
and significant based on an appropriate record,” 51 a view it has
reaffirmed where prisoners have alleged worse conditions than
“normal” SHU confinement. 52
Other circuits have ruled in ways decidedly less favorable
to prisoners. The Fifth Circuit held in a case involving prisoners
confined in “extended lockdown” (23-hour lock-up in small cells,
three hours solitary outdoor exercise a week, restricted property,
reading materials, legal access, etc.) for about thirty years that if
their placement resulted from their initial classification upon
entering the prison, there was no due process claim because
prisoners have no protectable liberty interest in classification; only

said that “the duration of SHU confinement is a distinct factor
bearing on atypicality and must be carefully considered.” Id. at
231.
50
Colon, 215 F.3d at 232.
51
Id. at n. 5.
52
See Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir. 2004)
(holding that 90-day confinement could be atypical and significant
based on allegations inter alia of 24-hour confinement without
exercise or showers during part of the period), cert. denied, 543
U.S. 1187 (2005); Palmer v. Richards, 364 F.3d 60, 66 (2d Cir.
2004) (holding that 77 days in SHU could be atypical and
significant based on allegations of deprivation of personal
clothing, grooming equipment, hygienic products and materials,
reading and writing materials, family pictures, personal
correspondence, and contact with family, and being mechanically
restrained whenever out of cell, raised a material factual question
under the atypical and significant standard).

19

if their confinement was for other reasons would even the atypical
and significant standard apply to it.53 The Third Circuit has found
segregated confinement atypical and significant only in a case
involving eight years’ confinement under unusually harsh
conditions. 54 Similarly, the Eighth Circuit has ruled for plaintiffs
only in cases involving segregation of a decade or more. 55
a. “Atypical.” Underlying these divergent results are a
number of unresolved questions about application of the atypical
and significant standard. One is the meaning of “atypical,”
generally defined as “not conforming to type; UNUSUAL.” 56 One
would think that courts assessing whether certain conditions are
atypical would want to know what proportion of prisoners are
subjected to them. In fact, only a few courts have even asked this
53

Wilkerson v. Stalder, 329 F.3d 431, 435–36 (5th Cir. 2003).
Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). The plaintiff
was subject to 23-hour lock-in and denied radio and TV, phone
calls except in emergencies, books other than legal and religious,
contact with his family, all program activities, and access to the
library. Compare Young v. Beard, 227 Fed.Appx. 138 (3d
Cir.2007) (unpublished) (930 days in segregation); Griffin v.
Vaughn, 112 F.3d 703 (3d Cir. 1997) (15 months in administrative
segregation).
55
See Williams v. Norris, 277 Fed.Appx. 647, 648-49 (8th Cir.
2008) (unpublished) (12 years in administrative segregation held
atypical and significant); Herron v. Wright, 116 F.3d 480 (8th Cir.
1997) (unpublished) (stating length of confinement is a
“significant factor” in determining what is atypical and significant,
and 10 years in administrative segregation appeared to be “beyond
typical and insignificant,” even though the initial placement in
segregation was not). On remand, the district court agreed that the
length of confinement—by then more than thirteen years—was
atypical and significant, and the appeals court affirmed. Herron v.
Schriro, 11 Fed. Appx. 659 (8th Cir. 2001) (unpublished).
Compare Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010) (per
curiam) (holding nine months in segregation was not atypical and
significant).
56
Webster’s II New Riverside University Dictionary (1988).
54

20

question, and mostly not recently. 57
Other decisions have taken a more qualitative approach.
One court has cautioned that a disciplinary punishment can be
atypical and significant, even if it is not unusual compared to other
disciplinary punishments; the point of Sandin, it said, is that
deprivations are not serious enough to require due process if they
“are typically endured by other prisoners, not as a penalty for
misbehavior, but simply as the result of ordinary prison
administration.” 58 One circuit has held that a punishment or
57

The Second Circuit and district courts within it have done so,
though not recently. See Colon v. Howard, 215 F.3d 227, 232 (2d
Cir. 2000) (stating courts might consider “the precise frequency of
SHU confinements of varying durations” in the atypical and
significant determination for confinement between 101 and 305
days); Scott v. Coughlin, 78 F. Supp. 2d 299, 311 n.12 (S.D.N.Y.
2000) (stating that data showing only 1.58% of the prison
population were placed in administrative segregation or
involuntary protective custody and only 0.55% stayed as long as 60
days would support plaintiff’s claim that 60 days’ confinement
was atypical and significant); Lee v. Coughlin, 26 F. Supp. 2d 615,
635 (S.D.N.Y. 1998) (weighing fact that plaintiff’s segregation
sentence was longer than 99% of disciplinary confinement
sentences); McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. 1998)
(using similar analysis for prisoner held in administrative
segregation for four years). In Austin v. Wilkinson, 372 F.3d 346,
355 (6th Cir. 2004), aff’d in part and rev’d in part on other
grounds, 545 U.S. 209, 125 S. Ct. 2384 (2005), the court wrote:
“Whatever the ‘ordinary incidents of prison life’ may encompass,
they must be decided with reference to the particular prison system
at issue, and can only be truly ‘ordinary’ when experienced by a
significant proportion of the prison population.” However, that
court did not actually look at what proportion of the prison
population experienced the conditions, and the Supreme Court, in
reviewing the decision, did not address whether the proportion of
prison population subject to the challenged conditions plays a part
in the “atypical and significant” analysis.
58
Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999); accord,

21

restriction is not atypical if it is “routinely” imposed by prison
officials—not that it is more likely than not to happen, but that
there must be a “substantial chance” of its occurrence. 59 Other
courts seem to assume that as long as whatever happens to the
prisoner is authorized by prison rules, it is not atypical, without
even asking how often it really happens, 60 though at least one court
has explicitly rejected that view. 61
b. “Significant.” The meaning of “significant” is equally
problematic. In Sandin, the Court dismissed the 30-day placement
of a general population prisoner in 23-hour isolated lock-up, with
restraints during the hour out of cell, as not atypical and
significant. Some courts have dismissed much worse conditions as
not atypical and significant even though they were imposed for
much longer. 62 One circuit has framed the question as whether
“the conditions of placement are extreme,” but has held that even
extreme conditions “do not, on their own” satisfy the atypical and
significant standard 63—a conclusion that seems difficult to square

Kalwasinski v. Morse, 201 F.3d 103, 107 (2d Cir. 1999).
59
Hatch v. District of Columbia, 184 F.3d 846, 857–58 (D.C. Cir.
1999).
60
See Griffin v. Vaughn, 112 F.3d 703, 707–09 (3d Cir. 1997).
61
Hatch v. District of Columbia, 184 F.3d at 857.
62
See Fraise v. Terhune, 283 F.3d 506, 523 & n.1 (3d Cir. 2002)
(holding that placement in “maximum custody” in “Security
Threat Group Management Unit” did not deprive prisoners of
liberty although prisoners received only five hours out of cell a
week, shower or shave every third day, strip searches every time
they left their cells, one non-contact visit a month, one monitored
phone call a month, all meals in cells, denial of all regular
programs); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997)
(holding that filthy, vermin-infested, and flooded conditions, with
unbearably hot cells, cold food, and smaller portions, no clean
clothing or bedding, no outdoor recreation, etc., for six months
were not atypical and significant).
63
Rezaq v. Nalley, ___ F.3d ___, 2012 WL 1372151, *8-9 (10th
Cir., Apr. 20, 2012). This decision held that confinement in the
federal Florence ADX facility, with 23-hour lock-in in small, stark

22

with the ordinary meaning of words. Other courts, however,
consider “normal SHU conditions” atypical and significant if they
last long enough. 64 One court in particular has held that courts
must give suitable weight to the difference between being confined
23 hours a day and half the day, 65 even though the Supreme Court
in Sandin seemed not to be impressed by that difference. 66 Several
courts have held that “supermax” confinement conditions,
characterized by even greater isolation, lock-in time, idleness,
property restrictions, etc., than in the usual segregation units, are
atypical and significant.67 Especially unpleasant or oppressive
cells (albeit equipped with televisions that aired black and white
educational and religious programming), with outdoor recreation
in fenced-in areas slightly larger than the cells, and with five noncontact visits and two 15-minute phone calls a month, was not
extreme. Id. at *11.
64
See, e.g., Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004).
65
See Kawalsinski v. Morse, 201 F.3d 103, 106 (2d Cir. 1999).
66
One court has pointed out major differences between the
Hawaii’s prison system at issue in Sandin and the New York
prison system which justify different results in applying the
atypical and significant standard. Among other things, the
difference between general population and segregation conditions
appears to be larger in New York, and there is less discretion to
place prisoners in segregation; though there is a catchall provision
allowing segregation in circumstances not spelled out by the rules,
that provision is limited to “emergency or unusual situations.”
Punitive segregation is significantly different from administrative
segregation. For those reasons, punitive confinement in New York
does impose a “major disruption” on the prisoner’s environment.
Lee v. Coughlin, 26 F. Supp. 2d 615, 633–35 (S.D.N.Y. 1998).
Similar distinctions probably exist between Hawaii and other states
as well.
67
Wilkinson v. Austin, 545 U.S. 209, 223–24, 125 S. Ct. 2384
(2005); Gillis v. Litscher, 468 F.3d 495 (7th Cir. 2006); Westefer
v. Snyder, 422 F.3d 570, 589–90 (7th Cir. 2005); Farmer v.
Kavanagh, 494 F. Supp. 2d 345, 357 (D.Md. 2007); Koch v.
Lewis, 216 F. Supp. 2d 994, 1000–01 (D.Ariz. 2001), vacated as
moot, 399 F.3d 1099 (9th Cir. 2005); see U.S. Dep’t of Justice,

23

conditions may be atypical and significant even for short periods
of time. 68
One issue that has not been explored very much is whether
the recognized psychological impact of isolated confinement 69
makes it “significant” for due process purposes. These
consequences of isolation are arguably comparable to other
psychological impacts that the Supreme Court has held cognizable
under the Due Process Clause based on the Constitution itself. 70 A
few decisions have cited these effects as reasons for considering
long terms in segregation as “significant” and therefore as calling
for due process. 71

National Institute of Corrections, Supermax Prisons: Overview and
General Considerations (1999) (quoted in Michael B. Mushlin, 1
Rights of Prisoners § 2.3 at 87 (2002)) (defining a supermax
facility as “a highly restrictive, high-custody housing unit within a
secure facility, or an entire secure facility, that isolates inmates
from the general population and from each other”).
68
In Gillis v. Litscher, 468 F.3d 495 (7th Cir. 2006), the court held
that a plaintiff placed for 12 days in the extremely harsh conditions
of a “Behavior Modification Program” within a “Supermax” prison
raised a triable issue under the atypical and significant standard. In
stage one of the program, the plaintiff had no property, no
privileges (no mail, phone, visitors, canteen items, writing
materials), and no clothing, slept on a concrete slab with no
bedding, was provided very limited quantities of toilet paper, and
was fed “nutri-loaf.” Stage two was somewhat less harsh. Gillis,
468 F.3d at 490–91.
69
See § 1, above.
70
See Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct.
1028 (1990) (holding that prisoners possess “a significant liberty
interest in avoiding the unwanted administration of antipsychotic
drugs. . . .”); Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254
(1980) (citing exposure to “[c]ompelled treatment in the form of
mandatory behavior modification programs” in holding that a
prisoner’s commitment to a mental hospital is a deprivation of
liberty).
71
See Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000) (stating

24

c. Individuals’ Circumstances—Do They Matter? A
related question is whether the atypical and significant analysis
must always be generic, or if circumstances may be atypical and
significant for some prisoners and not others. There is some
support for an individualized approach in the case law—e.g., that
placing a wheelchair-bound prisoner in a non-wheelchairaccessible SHU for a couple of months created an atypical and
significant hardship for that person, 72 or that placing a prisoner in
SHU who was so tall that the cramped quarters and short bed
aggravated his medical problems could be atypical and
significant. 73 A similar argument might be made about people with
courts might consider “evidence of the psychological effects of
prolonged confinement in isolation”); Shoats v. Horn, 213 F.3d
140, 144 (3d Cir. 2000) (citing evidence that prison officials would
be concerned about psychological harm after 90 days of extreme
isolation); Koch v. Lewis, 216 F. Supp. 2d 994, 1001 (D.Ariz.
2001) (citing “detrimental pathological effect” in finding extreme
isolated confinement atypical and significant), vacated as moot,
399 F.3d 1099 (9th Cir. 2005); Lee v. Coughlin, 26 F. Supp. 2d
615, 637 (S.D.N.Y. 1998) (denying summary judgment in case
involving 376 days of punitive segregation; “The effect of
prolonged isolation on inmates has been repeatedly confirmed in
medical and scientific studies.”); McClary v. Kelly, 4 F. Supp. 2d
195, 205–09 (W.D.N.Y. 1998) (finding a triable issue of atypical
and significant hardship in four years’ administrative segregation
on a record reflecting both expert evidence and the plaintiff’s own
testimony about psychological harm); Garcia v. Gomez, 1996 WL
390320, *3 (N.D.Cal., July 3, 1996) (“The SHU is stark to the
point of being akin to a sensory deprivation tank. Almost
exclusively, prisoners see nothing, do nothing and interact with no
one, experiencing abject tedium”; finding a liberty interest in
avoiding confinement in a particular SHU.), vacated on other
grounds, 164 F.3d 630 (9th Cir. 1998).
72
Serrano v. Francis, 345 F.3d 1071, 1079 (9th Cir. 2003) (stating
“the conditions imposed on Serrano in the SHU, by virtue of his
disability, constituted an atypical and significant hardship on him.”
(emphasis supplied)).
73
Delany v. Selsky, 899 F. Supp. 923, 927–28 (N.D.N.Y. 1995).

25

mental illness. If placing such persons in segregation can violate
the Eighth Amendment because of their special susceptibility to
the psychological effects of isolation, 74 mightn’t placement in
segregation be atypical and significant for them, even if it would
not be for a person without mental illness?
d. What’s the Conditions Baseline? The case law is also
muddled about the appropriate basis of comparison under Sandin,
which said that to require due process, conditions must “impose[]
atypical and significant hardship . . . in relation to the ordinary
incidents of prison life.” 75 What are those “ordinary incidents”?
The Supreme Court has acknowledged this “baseline” question
without answering it.76 Sandin said that the prisoner plaintiff’s
disciplinary segregation, “with insignificant exceptions, mirrored
those conditions imposed upon inmates in administrative
segregation and protective custody. . . . Thus, [his] confinement
did not exceed similar, but totally discretionary, confinement in
either duration or degree of restriction.” 77 Some courts have held
that this means administrative segregation and conditions similar
to administrative segregation are never atypical and significant. 78
One recent decision, after reviewing conditions at the federal
Florence ADX facility, held them not atypical and significant
because “they are substantially similar to conditions experienced in

74

See § 3, above.
Sandin v. Conner, 515 U.S. 472, 484 (1995).
76
Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (stating that the
“supermax” conditions before it were atypical and significant
“under any plausible baseline”).
77
Sandin, 515 U.S. at 486 (footnote omitted). The difference
between administrative and punitive segregation conditions
amounted to one extra phone call and one extra visit. Id., 515 U.S.
at 476 n.2.
78
See Hatch v. District of Columbia, 184 F.3d 846, 857–58 (D.C.
Cir. 1999); Wagner v. Hanks, 128 F.3d 1173, 1174–75 (7th Cir.
1997) (holding that segregated confinement is atypical and
significant only if it is substantially more restrictive than any nonpunitive confinement in the state’s prison system).
75

26

any solitary confinement setting.” 79 Others have rejected this
view, holding that if administrative segregation is not totally
discretionary, it can be atypical and significant, 80 or simply that
segregation conditions should be compared with general
population conditions to decide if they are atypical and
significant. 81
e. Duration. Sandin said that the prisoner’s 30-day
confinement “did not exceed similar, but totally discretionary,
confinement in either duration or degree of restriction.” 82 That
seems to imply that even ordinary segregation conditions can
become atypical and significant if they go on long enough, as a
number of courts have held. 83 Other courts appear not to think that
79

Rezaq v. Nalley, ___ F.3d ___, 2012 WL 1372151, *12 (10th
Cir., Apr. 20, 2012).
80
See Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).
81
Palmer v. Richards, 364 F.3d 60, 65, 66 (2d Cir. 2004) (quoting
Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999)); Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003). Contra, Wagner v.
Hanks, 128 F.3d at 1175; Griffin v. Vaughn, 112 F.3d 703, 706 n.2
(3d Cir. 1997) (rejecting the use of general population as a basis
for comparison). In Jackson v. Carey, 353 F.3d 750, 755 (9th Cir.
2003), the court referred to comparisons with general population or
administrative segregation, “whichever is applicable.”
82
Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293 (1995).
83
See Harris v. Caruso, ___ Fed.Appx. ___, 2012 WL 661952, *2
(6th Cir., Feb. 29, 2012) (unpublished) (holding the “atypical
duration” of plaintiff’s eight-year confinement triggered his right
to due process); Marion v. Columbia Correctional Institution, 559
F.3d 693, 697 (7th Cir. 2009); Palmer v. Richards, 364 F.3d 60, 64
(2d Cir. 2004); Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir. 2003);
Gaines v. Stenseng, 292 F.3d 1222, 1226 (10th Cir. 2002); Hatch
v. District of Columbia, 184 F.3d 846, 858 (D.C. Cir. 1999).
There is sometimes a question of what the relevant
duration is. The Second Circuit has held in a series of decisions
that the relevant time period is the time actually served if the
prisoner does not complete a segregation term, Hanrahan v.
Doling, 331 F.3d 93, 97 (2d Cir. 2003); Colon v. Howard, 215

27

length of confinement matters. 84 Courts that do consider the length
of confinement have come out very differently in deciding how
much segregation time it takes to be atypical and significant. 85
Obviously, after Sandin, time periods less than or only slightly
more than 30 days will not be considered atypical and significant
unless the conditions are extreme. 86
In administrative segregation cases, the Supreme Court has
said that the potentially indefinite nature of the confinement
weighs in favor of finding atypical and significant hardship. 87

F.3d 227, 231 n.4 (2d Cir. 2000); that consecutive disciplinary
sentences should be aggregated for the atypical and significant
determination, Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001);
Sims v. Artuz, 230 F.3d 14, 23–24 (2d Cir. 2000); and that prehearing segregation and post-hearing segregation should be
aggregated. Sealey v. Giltner, 197 F.3d 578, 587 (2d Cir. 1999).
84
As noted earlier, one circuit has said that “extended lockdown”
for 30 years would not be atypical and significant if it was
imposed as part of initial classification into the prison, though it
might if it was imposed for some other reason. Wilkerson v.
Stalder, 329 F.3d 431, 435–36 (5th Cir. 2003).
85
See cases cited in nn. 48-55, above.
86
See Gillis v. Litscher, 468 F.3d 495, 490–91 (7th Cir. 2006)
(holding 12 days in a “supermax” “Behavior Modification
Program,” with no property, no mail, phone, visitors, canteen
items, writing materials, clothing, or bedding, limited toilet paper,
and “nutri-loaf” for food, raised a jury question under the atypical
and significant standard); Mitchell v. Horn, 318 F.3d 523, 527–28,
532 n.6 (3d Cir. 2003) (directing district court to consider whether
four days confinement in a cell smeared with feces and infested
with flies, in an area populated by mentally ill prisoners, was
atypical and significant).
87
Wilkinson v. Austin, 545 U.S. 209, 224, 125 S. Ct. 2384 (2005);
accord, Harden-Bey v. Rutter, 524 F.3d 789 (6th Cir. 2008); Koch
v. Lewis, 216 F. Supp. 2d 994, 1001–02 (D.Ariz. 2001), vacated
as moot, 399 F.3d 1099 (9th Cir. 2005). But see Johnston v.
Vaughn, 2000 WL 1694029, *2 (E.D.Pa., Nov. 3, 2000) (noting
that any administrative segregation prisoner can claim potentially

28

One court has in effect redefined “indefinite,” holding that the
existence of periodic reviews “suggests that the confinement was
not indefinite,” although the reviews were at longer intervals than
in Wilkinson, which described the plaintiffs’ confinement as
indefinite. 88
f. Length of Sentence. Sandin said that a punishment of
30 days in 23-hour lock-up was “well within the range of
confinement to be normally expected for one serving an
indeterminate term of 30 years to life.” 89 It is hard to know what
the Supreme Court meant by that statement. Why would 30 days in
punitive segregation be any more or less “expected” for someone
doing 30 to life than for someone doing one year? Some courts
have applied this statement in Sandin and have given the prisoner’s
criminal sentence weight in determining whether a segregation
term was atypical and significant. 90 Most courts simply have not

indefinite confinement, and actual time served must be the
“threshold consideration” in deciding whether there is a liberty
interest).
One court’s statement that the decision in Wilkinson was
based “largely on the fact that placement was indefinite and
disqualified otherwise eligible inmates from consideration for
parole,” Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir. 2008)
(emphasis supplied), minimizing the importance of conditions and
time served in confinement, has apparently been superseded. See
Marion v. Columbia Correctional Institution, 559 F.3d 693, 697-99
(7th Cir. 2009) (holding 240 days of segregation obliges the court
to examine the conditions of confinement to make the atypical and
significant judgment).
88
Wilkinson v. Austin, 545 U.S. at 214-15 (stating “placement at
OSP is for an indefinite period of time, limited only by an inmate's
sentence,” despite the existence of annual reviews).
89
Sandin v. Conner, 515 U.S. 472, 487, 115 S. Ct. 2293 (1995).
90
See, e.g., Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C.
Cir. 1999); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997)
(noting, in holding segregation time not atypical and significant,
that 70 days segregation is relatively short compared to the
plaintiff’s 12-year prison sentence); Rimmer-Bey v. Brown, 62

29

mentioned the issue.
g. Purpose of Confinement. Two circuits have included
in the Sandin analysis the question whether the confinement is for
a legitimate purpose. 91 This is an odd holding in a procedural due
process controversy; the purpose of requiring procedural
protections is in large part to ensure that particular deprivations of
liberty or property are for a legitimate purpose, and to adjudicate
that question as a precondition for providing such process seems
backwards. Certainly the kind of confinement at issue will always
be for a legitimate purpose in the abstract, since isolated
confinement is always justified in terms of the legitimate purposes
of maintaining the security of the institution and the safety of
prisoners and staff.
Finally, and appropriately in light of the disarray just
described, at least one circuit seems to have rejected the idea of
any discernible standard for finding a liberty interest. It has stated
that
[r]elevant factors might include whether (1) the
segregation relates to and furthers a legitimate
penological interest, such as safety or rehabilitation; (2)
the conditions of placement are extreme; (3) the

F.3d 789, 791 (6th Cir. 1995); Edmonson v. Coughlin, 21 F. Supp.
2d 242, 250 (W.D.N.Y. 1998) (noting that a prisoner with a longer
sentence is more likely to have the chance to serve a longer
segregation sentence, and therefore such a sentence is more typical
and less significant than for someone with a shorter sentence).
91
See Rezaq v. Nalley, ___ F.3d ___, 2012 WL 1372151, *8 (10th
Cir., Apr. 20, 2012) (“[r]elevant factors might include whether (1)
the segregation relates to and furthers a legitimate penological
interest, such as safety or rehabilitation. . . .”) (quoting Estate of
DiMarco v. Wyoming Dep’t of Corr., 473 F.3d 1334, 1342 (10th
Cir. 2007)); Harden-Bey v. Rutter, 524 F.3d 789, 794 (6th Cir.
2008) (holding the existence of a liberty interest requiring due
process protections is determined in part by whether the
defendants had “good reason” for the confinement) (citing Jones v.
Baker, 155 F.3d 810, 812 (6th Cir.1998)).

30

placement increases the duration of confinement, as it
did in Wilkinson; and (4) the placement is indeterminate
(in Wilkinson the placement was reviewed only
annually). 92
However, it has gone on to say that “we have never suggested that
the factors serve as a constitutional touchstone,” and that a “factdriven assessment that accounts for the totality of conditions
presented by a given inmate’s sentence and confinement” is called
for. 93
h. The Process Due. It is tempting to dismiss this
disorderly controversy as of interest mainly to lawyers, with few
real-world consequences. 94 After all, the standard to which prison
92

Rezaq v. Nalley, ___ F.3d ___, 2012 WL 1372151, *8 (10th
Cir., Apr. 20, 2012) (quoting Estate of DiMarco v. Wyoming
Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007)).
93
Rezaq, 2012 WL 1372151, *9.
94
This temptation should be resisted. One striking counterexample is that of Mark Koch, serving a life sentence, who after a
number of years of confinement was deemed a gang associate and
was placed in a high-security segregation unit from which no one
was paroled and no one could be released except by “debriefing,”
which would target him for execution and require his placement in
an almost equally restrictive protective custody setting. As a
result, he could expect to spend the rest of his life in solitary
confinement. The district court held that the circumstances of his
confinement created a liberty interest, and that there had to be
some evidence of misconduct as well as his alleged status as gang
member to justify indefinite confinement. Koch v. Lewis, 216
F.Supp.2d 994, 1006-07 (D.Ariz. 2001), vacated as moot, 399 F.3d
1099 (9th Cir. 2005). The case was held moot at the appellate
stage because Mr. Koch, having been released to general
population, had been released on parole. He remains free and at
present is gainfully and legitimately employed in another state.
(Personal communication from Mr. Koch’s counsel.)
More generally, the practical experience of lawyers
litigating extremes of duration or conditions of isolated
confinement is that defendants tend to yield at least to some degree

31

officials are held in prison disciplinary hearings is minimal, 95 and
trumped-up charges do not state a constitutional claim as long as
the procedural rituals are observed. 96 The due process standard in
connection with administrative segregation is even less
demanding, requiring only “some notice of the charges” and “an
informal nonadversary review of the information supporting [the
prisoner's] administrative confinement” and noting that decisions
may be based on “rumor, reputation, and even more imponderable
factors . . . ‘purely subjective evaluations’ . . . [and] intuitive
judgments.” 97
(Some courts have mitigated this alarming
proposition by requiring that information on which segregation is
based have some indicia of reliability, as in disciplinary cases. 98)

when egregious practices are challenged. See, e.g., Rezaq v.
Nalley, ___ F.3d ___, 2012 WL 1372151, *2-3 (10th Cir., Apr. 20,
2012) (noting the mitigation of the plaintiffs’ confinement through
transfers to other less oppressive units and the promulgation of
revised hearing procedures during the pendency of litigation
challenging confinement in federal ADX facility); see also David
C. Fathi, The Common Law of Supermax Litigation, 24 Pace
L.Rev. 675 (2004) (noting settlements, including substantial
concessions, of challenges to “Supermax” conditions).
95
See Superintendent v. Hill, 472 U.S. 445, 457 (1988) (holding
that disciplinary conviction need be supported only by “some
evidence”); Wolff v. McDonnell, 418 U.S. 539, 563-71 (1974)
(holding due process requires only notice, a written statement of
the evidence behind a decision and the reasons for the punishment
imposed, a limited right to call witnesses and present documentary
evidence at a hearing, and in certain cases the assistance of a
counsel substitute); People ex rel. Vega v. Smith, 66 N.Y.2d 130,
495 N.Y.S.2d 332, 485 N.E.2d 997, 1002-04 (N.Y. 1985) (holding
that a staff member's written report alone can be sufficient to
support a disciplinary conviction).
96
See, e.g., Freeman v. Rideout, 808 F.2d 949, 951-53 (2d Cir.
1986), cert. denied, 485 U.S. 982 (1988).
97
Hewitt v. Helms, 459 U.S. 460, 472, 474, 476 (1983)
98
Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001); Ryan v.
Sargent, 969 F.2d 638, 640-41 (8th Cir. 1992), cert. denied, 506

32

Much recent due process litigation has focused not on
placement in administrative segregation but on retention in
segregation, focusing on the due process requirement of “some sort
of periodic review” to determine if there is a need for continued
segregation. 99 Such review need not involve new evidence or
statements, 100 though notice should be provided if new material is
to be presented. 101 Review must be meaningful; due process is not
satisfied by perfunctory review and rote reiteration of stale
justifications. 102 Some recent decisions arguably transform the
procedural requirement of periodic review into a substantive
requirement of meaningful criteria or instructions for prisoners to
U.S. 1061 (1993); Koch v. Lewis, 216 F.Supp.2d 994, 1003
(D.Ariz. 2001), appeal dismissed as moot, 335 F.3d 993 (9th Cir.
2003).
99
Hewitt v. Helms, 459 U.S. at 477 n.9.
100
Hewitt, id.; Magluta v. Samples, 375 F.3d 1269, 1278–79 & n.7,
1283 (11th Cir. 2004).
101
Clark v. Brewer, 776 F.2d 226, 234 (8th Cir. 1985).
102
Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986);
McClary v. Kelly, 87 F. Supp. 2d 205, 214 (W.D.N.Y. 2000)
(upholding damage verdict for sham review), aff’d, 237 F.3d 185
(2d Cir. 2001); Smart v. Goord, 441 F. Supp. 2d 631, 642
(S.D.N.Y. 2006) (allegation that review hearings were a “hollow
formality” and officials did not actually consider releasing plaintiff
stated a due process claim); Giano v. Kelly, 869 F. Supp. 143, 150
(W.D.N.Y. 1994); see Thompson-El v. Jones, 876 F.2d 66, 69 n.6
(8th Cir. 1989) (dictum) (a claim that there was an “ongoing
investigation” might not justify six months’ segregation when
there was little or no actual investigation going on). But see
Edmonson v. Coughlin, 21 F. Supp. 2d 242, 253–54 (W.D.N.Y.
1998) (“The fact that the ASRC repeated the same rationale each
week, and did not enable Edmonson to submit information is not a
basis for finding that the ASRC violated due process.” Though the
process should have been “better documented,” it need not be
“formalized.”); Golub v. Coughlin, 885 F. Supp. 42, 45–46
(N.D.N.Y. 1995) (holding that review that cited nothing but the
crime the prisoner had committed and the resulting publicity was
adequate).

33

conform their behavior to in order to obtain release.
decisions are discussed in the next section.

These

5.

Recent Developments
Several relatively recent decisions provide some basis for
hope that the courts may place more meaningful substantive limits
on the use of solitary confinement.
In Wilkerson v. Stalder, the well-known “Angola Three”
litigation, the plaintiffs, who had been affiliated with the Black
Panther Party, and two of whom had been convicted of murdering
a prison guard, were held for 28 to 35 years in administrative
segregation despite their lack of any continuing disciplinary
record. The court denied summary judgment for prison officials,
holding that a reasonable fact finder could “determine that the
cumulative effect of over 28 years of confinement in lockdown at
LSP constitutes a sufficiently serious deprivation of at least one
basic human need, including but not limited to sleep, exercise,
social contact and environmental stimulation. It is obvious that
being housed in isolation in a tiny cell for 23 hours a day for over
three decades results in serious deprivations of basic human
needs.” 103
The court appropriately anchored this recognition of social
interaction and environmental stimulation as basic human needs in
the prior jurisprudence “recognizing mental health as worthy of
Eighth Amendment protection, and the requirement that Eighth
Amendment protections change to reflect ‘evolving standards of
decency that mark the progress of a maturing society.’” 104
Nonetheless it appears to be a holding of first impression, and an
important one, since previous articulations of the “basic human
103

Wilkerson v. Stalder, 639 F. Supp. 2d 654, 680, 681-82
(M.D.La. 2007) (emphasis supplied). Compare Bono v. Saxbe,
620 F.2d 609, 614 (7th Cir. 1980) (“Inactivity, lack of
companionship and a low level of intellectual stimulation do not
constitute cruel and unusual punishment even if they continue for
an indefinite period of time, although the duration ‘is a factor to be
considered, especially if the confinement is punitive.’”).
104
Wilkerson v. Stalder, 639 F. Supp. 2d at 678.

34

needs” principle have been considerably narrower and more
oriented to physical survival. (Thus the Supreme Court has
acknowledged “food, clothing, shelter, medical care and
reasonable safety” 105 as well as “warmth [and] exercise” 106 as basic
needs.) It should be noted that this Wilkerson summary judgment
holding is now five years old, with no final resolution of the merits
of the case. To date no other courts have adopted its holding that
social contact and environmental stimulation are basic needs.
One of the elements of procedural due process, as noted
above, is a requirement of meaningful period review of
administrative confinement.
A couple of recent decisions
emphasize the substantive aspect of that requirement, i.e., criteria
by which the need for continuing confinement is judged. One
court held that if segregation is imposed to encourage a prisoner to
improve his behavior, “the review should provide a statement of
reasons [for retention], which will often serve as a guide for future
behavior (i.e., by giving the prisoner some idea of how he might
progress toward a more favorable placement).” 107 What is news
here is the idea that there must be some idea of how the prisoner
might progress towards release from segregation. 108
105

Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475 (1993)
(citing DeShaney v. Winnebago County Dep’t of Social Services,
489 U.S. 189, 199–200, 109 S. Ct. 998 (1989)).
106
Wilson v. Seiter, 501 U.S. at 304. “Shelter” includes various
aspects of physical conditions including lighting, ventilation, and
structural deterioration.
107
Toevs v. Reid, ___ F.3d ___, 2012 WL 1085802, *6 (10th Cir.,
Apr. 2, 2012). The court cited Wilkinson v. Austin, 545 U.S. 209,
226 (2005), which noted that Ohio's requirement of a statement of
reasons for retention in its Supermax facility “serves as a guide for
future behavior,” though the Court did not specifically state that
due process requires a statement that serves that purpose.
108
This holding is a departure from some earlier decisions that
held that officials need not promulgate objective criteria for release
from administrative segregation. Clark v. Brewer, 776 F.2d 226,
236 (8th Cir. 1985); Mims v. Shapp, 744 F.2d 946, 952–53 (3d
Cir. 1984).

35

Another decision held that a prisoner who had murdered
another prisoner in 1982, had spent many years in general
population after a period of segregation, and then was returned to
segregation in 1995 where he remained for 14 years, had not
received meaningful review where defendants “failed to explain to
[the prisoner], with any reasonable specificity, why he constituted
a continuing threat to the security and good order of the
institution.” 109 The court explicitly excluded the possibility that
prison officials could simply cite the commission of a prison
murder as permanently disqualifying a prisoner for eventual
release from segregation, citing both its own precedents and the
Supreme Court’s statement that “administrative segregation may
not be used as a pretext for indefinite confinement of an
inmate.” 110 Thus this procedural requirement that prison officials
state a current justification for ongoing confinement becomes a
substantive requirement that they have a current justification and
not just a long-past act, however heinous.
It remains to be seen whether courts will follow up on
these encouraging proclamations and actually require prisoners’
release where officials present only superannuated or trumped-up
justifications for continuing segregation.
A quite different approach is taken in U.S. v. Bout, 111 in
which a notorious international arms dealer who had been held in
solitary confinement for 15 months, first in pre-trial detention and
then after conviction at trial, complained by letter; after a hearing,
the court ordered him released. 112
The court, unusually,
109

Williams v. Hobbs, 662 F.3d 994, 1008 (8th Cir. 2011).
Williams v. Hobbs, 662 F.3d at 1007-08 (citing Hewitt v.
Helms, 459 U.S. 460, 477 n. 9 (1983), and Kelly v. Brewer, 525
F.2d 394 (8th Cir.1975)).
111
___ F.Supp.2d ___, 2012 WL 653882, *3 (S.D.N.Y., Feb. 24,
2012).
112
The letter was apparently construed as a motion, and the motion
was then construed as a petition for habeas corpus under 28 U.S.C.
§ 2241, without objection by the government. U.S. v. Bout, 2012
WL 653882, *2 n.12. The Second Circuit is one of several circuits
that allow prison segregation to be challenged via habeas corpus.
110

36

considered the matter under the standard of Turner v. Safley, 113
which governs challenges to regulations alleged to infringe upon
prisoners’ constitutional rights, and which requires a showing of a
reasonable relationship to a legitimate governmental objective. To
assess a claim under that standard, courts ask whether there is a
“valid, rational connection” between prison officials’ action and
the legitimate interest cited to justify it; whether the prisoner has
alternative means of exercising the right in question; whether
accommodating the right will affect staff, other prisoners, and the
allocation of prison resources; and whether there is a “ready”
alternative that will serve both prisoner’s and officials’ at minimal
cost. 114
Since the court viewed Turner as a “rough fit” in certain
respects to assessing the treatment of individuals rather than the
validity of regulations, it also relied on decisions involving the
permissibility of solitary confinement of pre-trial detainees in
federal custody. The standard governing those decisions is also a
reasonable relationship standard (never mind that the court refers
to them both as “rational basis review” 115), though considerations
of rehabilitation and punishment do not play a part where detainees
are concerned.
The court found no “valid, rational connection” between
the petitioner’s segregation and any legitimate governmental
interests; the government asserted a series of rationales based on
Abdul-Hakeem v. Koehler, 910 F.2d 66, 69–70 (2d Cir. 1990);
accord, Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir.
2003); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989);
Krist v. Ricketts, 504 F.2d 887, 887–88 (5th Cir. 1974) (per
curiam). Other circuits do not. Montgomery v. Anderson, 262
F.3d 641, 643–44 (7th Cir. 2001) (“Disciplinary segregation
affects the severity rather than duration of custody. Morerestrictive custody must be challenged under § 1983, in the
uncommon circumstances when it can be challenged at all.”);
Brown v. Plaut, 131 F.3d 163, 167–68 (D.C. Cir. 1997).
113
482 U.S. 78 (1987).
114
Turner, 482 U.S. at 89-91.
115
Bout, *3.

37

his crime and on other factors related to his life before
incarceration, and the court found them variously unsupported by
evidence or having only an attenuated relationship to prison
security. 116 The other Turner factors were quickly disposed of.
There were no alternatives other than release from SHU for the
prisoner to exercise his right. There would be no “ripple effect” on
other prisoners or prison staff because the transfer of one
individual from SHU to general population would not require
additional resources from prison officials. The availability of
alternative means for the prison to accommodate the prisoner’s
asserted right was not an issue since there was no alternative to
release from solitary but release from solitary.
There are several reasons to question the analysis in Bout.
The propriety of placing individual prisoners in segregation units
is usually addressed as a matter of procedural due process and not
substantive constitutional law, as discussed in § 4, above. There is
116

Id.

First, the Bureau of Prisons cited the petitioner’s criminal
charges, but the court looked at the evidence adduced at trial and
noted that there was no evidence of actual connection to any
terrorist organization within the previous 10 years, and no
indication he had engaged in violence himself. The claim of
“ability to acquire vast resources . . . and his connectivity to his
associates” was also found to be unsupported, since he had been
blacklisted by the Office of Foreign Assets Control and the United
Nations, which impeded his ability to transfer assets, and there was
no evidence of other resources available to him. His “alleged
leadership” and ability to control and influence other prisoners
were unsupported by the record. The publicity his case has
received, cited by the government, is “a very weak and dangerous
argument,” since many defendants receive broad publicity but are
released on bail or assigned to general population. Bout’s
involvement with former Liberian dictator Charles Taylor,
incarcerated in the Hague since 2006, occurred a decade ago and
there is no reason that they require solitary confinement now; the
government’s invocation of them suggests that it is punishing him
for conduct that was not a basis for his conviction.

38

a reason for that. The Bout decision refers repeatedly—as it must
in applying the Turner analysis—to the “right” of the prisoner that
is being restricted. What is that right? The court does not identify
it with specificity, but the question adjudicated is whether the
petitioner must remain in SHU or is to be released to general
population. It has been a commonplace for decades that prisoners
have no constitutional entitlement to remain in the general prison
population. 117 The Bout decision also invokes the principle of
deference to the judgment of prison officials that is asserted in
Turner and elsewhere by the Supreme Court, but its examination
of the government’s rationale is considerably more searching than
usual in administrative segregation cases—especially those
decided as matters of procedural due process, which enforce at best
a “some evidence” standard 118 and often allow officials to rely on
“rumor, reputation, and even more imponderable factors . . .
‘purely subjective evaluations’ . . . [and] intuitive judgments.” 119
Arguably Bout’s approach was appropriate in that case, since the
government relied largely on matters that the court was highly
familiar with from presiding over the case through a jury trial. But
that fact also limits the exemplary value of the Bout decision
because there are not many cases in which the administrative
segregation determination is based to such degree on matters
canvassed in the criminal proceedings, 120 as contrasted with events
or information developed in prison by prison officials.

117

Hewitt v. Helms, 459 U.S. 460, 468 (1983).
Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); Taylor v.
Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (both applying
“some evidence” standard, though requiring some “indicia of
reliability”).
119
Hewitt v. Helms, 459 U.S. 460, 474 (1983) (citations omitted).
120
U.S. v. Basciano, 369 F.Supp.2d 344, 351-52 (E.D.N.Y. 2005),
on which Bout relies, is another such case. The same is true of
Boudin v. Thomas, 533 F.Supp. 786 (S.D.N.Y. 1982), which also
predates Hewitt v. Helms and Turner v Safley.
118

39