NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY
VOLUME 4, ISSUE 1: FALL 2002

Comment: Technology and the Eighth Amendment: The
Problem of Supermax Prisons
Charles A. Pettigrew1
“I worry that anytime something as serious as a Supermax
prison is hidden from view, it will become an incubator for bad,
perhaps even cruel, practices.”2
I. Introduction
The Bureau of Justice Statistics reports that in the United
States, at the end of 2000, 6.5 million people were either on
probation, parole, or in jail or prison.3 This figure represents 3.5
percent of the population.4 Of these 6.5 million people, nearly 1.4
million resided in prison.5 The United States, one of the world’s
largest incarcerators, also leads the way in the development of state
of the art prisons, known by several names6 but frequently called
Supermaxes. One figure puts the number of Supermax prisoners

1

J.D. Candidate, University of North Carolina School of Law, 2004.
Walter Dickey, Changes Can Be Made To Salvage Supermax, CAP. TIMES,
Sept. 11, 2001, available at 2001 WL 25524954 (on file with the North Carolina
Journal of Law & Technology).
3
Generally, the distinction between prison and jail is that prisons contain
convicted persons while jails may contain convicted persons as well as those
awaiting trial but not yet convicted.
4
U.S. DEP’T OF JUSTICE, BUREAU OF JUST. STAT., BUREAU OF JUSTICE
STATISTICS 2002 AT A GLANCE 16, available at
http://www.ojp.gov/bjs/pub/pdf/bjsg02.pdf (Aug. 2002) (on file with the North
Carolina Journal of Law & Technology).
5
D.O.J. STATISTICS, supra note 4, at 16.
6
See, e.g., U.S. DEP’T OF JUSTICE, NAT’L INST. OF CORR., SUPERMAX PRISONS:
OVERVIEW AND GENERAL CONSIDERATIONS 5 [hereinafter D.O.J. OVERVIEW]
(“Special housing unit, maxi-maxi, maximum control facility, secured housing
unit, intensive housing unit, intensive management unit, and administrative
maximum penitentiary are but a few of the names used.”), available at
http://www.nicic.org/pubs/1999/014937.pdf (Jan. 1999) (on file with the North
Carolina Journal of Law & Technology).
2

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between 25,000 and 100,000. Undoubtedly, these technologically
advanced Supermax prisons represent one of the newest
approaches to incarceration.8 However, they also may represent a
violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment9 and foretell of an impending constitutional
crisis behind prison walls. According to the United States
Supreme Court, “[i]t is undisputed that the treatment a prisoner
receives in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment.”10
Correspondingly, technologically advanced Supermax prisons, and
the unique conditions they create, must be subjected to a rigorous
Eighth Amendment examination, an examination they will likely
fail if courts faithfully apply the current test for Eighth
Amendment violations.
II. Supermax Prisons Defined
The exact nature and characteristics of a Supermax prison
remain unclear.11 Because no standard definition exists, the
Federal Department of Corrections and the individual state
departments of correction have defined Supermax prisons in their

7

Claire Schaeffer-Duffy, Long Term Lockdowns: Psychological Effects of
Solitary Confinement and Stun Devices, NAT’L CATHOLIC REP., Dec. 8, 2000,
available at LEXIS, News Group File (on file with the North Carolina Journal
of Law & Technology).
8
Craig Haney & Mona Lynch Haney, Regulating Prisons of the Future: A
Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV.
L. & SOC. CHANGE 477, 479 (1997) (“Despite the dramatic shift in correctional
philosophy that this trend represents and the extraordinary public expense that it
has incurred, there has been surprisingly little public discussion or political
debate about the wisdom of this new approach to prison punishment.”).
9
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”).
10
Helling v. McKinney, 509 U.S. 25, 31 (1993).
11
D.O.J. OVERVIEW, supra note 6, at 3–6 ** (discussing the problem of varying
definitions of Supermax prisons among jurisdictions which is further
complicated by the lack of a formal standard promulgated by the American
Correctional Association or the American Bar Association for correctional
facilities) (on file with the North Carolina Journal of Law & Technology).

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own ways. The U.S. Department of Justice’s National Institute
of Corrections provides the following definition of a Supermax
facility:
a highly restrictive, high-custody housing unit
within a secure facility, or an entire secure facility,
that isolates inmates from the general prison
population and from each other due to grievous
crimes, repetitive assaultive or violent institutional
behavior, the threat of escape or actual escape from
high-custody facility(s), or inciting or threatening to
incite disturbances in a correctional institution.13
This definition is not perfect. It fails to address the alarming trend
in which Supermax prisons, designed to house the “worst of the
worst,” also house inmates who have not committed grievous
crimes, often because of a lack of space in other facilities or other
non-punitive reasons.14 A Supermax prison for the purposes of
this writing, however, is any highly restrictive, close custody
facility employing the latest corrections technology. Examples of
this type of Supermax prison are found in Wisconsin and many
other states.15 Because these technologically advanced prisons
represent a new approach to incarceration, there is a corresponding
need for a new approach when interpreting the Eighth Amendment
to ensure that prisoners in these facilities remain free from cruel
and unusual punishment.
The National Institute of Corrections surveyed the fifty
states, the Federal Department of Corrections, the Department of
Corrections of Canada, and several major U.S. cities concerning

12

D.O.J. OVERVIEW, supra note 6, at 3.
D.O.J. OVERVIEW, supra note 6, at 6.
14
HUMAN RIGHTS WATCH, OUT OF SIGHT: HUMAN RIGHTS WATCH BRIEFING
PAPER ON SUPERMAXIMUM PRISONS (“Many correctional authorities use overly
broad and vague criteria for determining supermax eligibility and fail to exercise
appropriate control over placement and decisions.”), available at
http://www.hrw.org/reports/2000/supermax/Sprmx002.htm#P40_391 (last
visited Sept. 12, 2002) (on file with the North Carolina Journal of Law &
Technology).
15
Haney & Haney, supra note 8, at 480 (noting that as of 1991, 36 states
maintained some type of Supermax unit).
13

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their use of Supermax facilities. This 1996 survey defined a
Supermax facility differently than the Institute’s later definition,
cited above.17 Fifty-five departments of corrections responded to
the survey, and thirty-four of these indicated that they either
operate a Supermax facility as defined by the survey or planned to
begin operation of a Supermax facility within two years, that is, by
1999.18 Further, the survey indicated that, in 1997, fifty-seven
Supermax facilities were in operation, maintaining 13,500 beds.19
The Supermax phenomenon, a relatively new one, is poised to
become a reality for many of America’s prisoners.
III. Supermax Technology
Advanced technology distinguishes Supermax prisons from
their conventional counterparts and allows for the isolation of
prisoners through technology that was previously impossible.20
The comments of Craig Haney, an expert in prisoner psychology,
underscore technology’s role in the new incarceration regime:
“‘Solitary confinement has been around for a long time’. . .
16

U.S. DEP’T JUSTICE, NAT’L INST. OF CORR., SUPERMAX HOUSING:
OF CURRENT PRACTICE 1 (Mar. 1997), available at

A SURVEY

http://www.nicic.org/pubs/1997/013722.pdf (on file with the North Carolina
Journal of Law & Technology).
17
Id. According to this survey, a Supermax is defined as:
[A] free-standing facility, or a distinct unit within a facility
that provides for the management and secure control of
inmates who have been officially designated as exhibiting
violent or serious and disruptive behavior while incarcerated.
Such inmates have been determined to be a threat to safety and
security in traditional high-security facilities, and their
behavior can be controlled only by separation, restricted
movement, and limited direct access to staff and other
inmates.
Id.
18
Id. at 3.
19
Id.
20
Leena Kurki & Norval Morris, The Purposes, Practices, and Problems of
Supermax Prisons, 28 CRIME & JUST. 385, 390 (2001) (“Supermaxes have been
described as prisons that ‘represent the application of sophisticated, modern
technology dedicated entirely to the task of social control, and they isolate,
regulate, and surveil more effectively than anything that has preceded them.’”).

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‘What’s different about these Supermax units is that the
technology of the modern correctional institution allows for a
separation, almost a technological separation, of inmates from the
social world around them in ways that weren’t really possible in
the past.’”21 Consequently, incarceration in a Supermax facility is,
technologically speaking, unlike other prison experiences.22 One
analysis of Supermax prisons notes “[a] principal goal of
architectural and technological design is limiting the need for
correctional staff to interact with inmates.”23 Certainly, many
benefits may result from the new technology associated with
Supermax prisons, including safer prisons for guards and some
inmates;24 however, with this new technology comes unintended
consequences, which threaten the Eighth Amendment rights of
many Supermax inhabitants.
Supermax Correctional Institution in Boscobel, Wisconsin,
typifies the new, technologically advanced Supermax prison.25
This award winning facility26 is indicative of Supermax
construction and philosophy. Unlike traditional prisons, it is
keyless in areas accessible by prisoners and laden with security
cameras.27 Each cell measures six feet by twelve feet,28 and audio
21

Inside, No One Can Hear You Scream, TUCSON WKLY., (May 3, 1999),
available at http://weeklywire.com/ww/05-03-99/tw_feat.html (on file with the
North Carolina Journal of Law & Technology).
22
Kurki & Morris, supra note 20, at 391 (noting the differences between modern
Supermax prisons and maximum-security prisons built relatively recently).
23
Id. at 389.
24
Jerry R. DeMaio, If You Build It, They Will Come: The Threat of
Overclassification in Wisconsin’s Supermax Prison, 2001 WIS. L. REV. 207, 207
(2001) (“Ostensibly, the purpose of a supermax prison is two fold: to help
maintain order within the prison population as a whole and to ensure the safety
of inmates and staff.”).
25
Id. (“Prisoners at SMCI are subjected to the most intense and restrictive
confinement available in the Wisconsin corrections system.”).
26
Barbara Horwitz, Behind Bars; Engineers Integrated 165 Security Cameras,
Biometrics, Customized Controls, Smoke Control and a Heat-Recovery System
to Produce Wisconsin’s New Cutting-Edge Maximum-Security Prison
CONSULTING-SPECIFYING ENGINEER, Dec. 1, 2001 (awarding the ConsultingSpecifying Engineer Integrator Award in Institutional Construction to the
builders of Wisconsin’s Supermax).
27
Id.
28
DeMaio, supra note 24, at 207.

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and video technology permits the cells and the inmates to be
monitored at all times.29 In fact, all movement by a prisoner can
be, and frequently is, conducted in isolation.30 Wisconsin’s
Capital Times notes:
[I]nmates are kept in solitary confinement without
windows to the outside for at least 23 hours a day,
with prison officials monitoring them via cameras
in the cells. They may spend up to four hours a
week in an exercise area, a windowless concrete
cell with little or no exercise equipment. . . Many
inmates can have phone calls lasting only 6 minutes
a week; face-to-face visits with family members and
friends are prohibited, but some are allowed contact
via closed circuit TV.31
Supermax prison technology has changed the typical means
of respite from isolation associated with traditional prison settings,
such as visits, meals, and programming.32 Many Supermaxes
conduct inmate visits exclusively via electronic audio/video
technology, where a closed-circuit television replaces direct
contact visits or even face-to-face visits behind bars and glass.33
29

Id. at 208 “They can be monitored at all times through cameras and audio
hookups in their cells, and a high technology security system can control and
track inmate movement throughout the facility.” Id.
30
D.O.J. OVERVIEW, supra note 6, at 19–20 (“Most extended control facility
designs incorporate single cells; a relatively small number of cells in each pod;
and a remote central control booth that electronically operates cell doors, shower
doors, unit doors and any number of other functions in several pods.”). See also
supra note 21.
31
David Callender, Suit Calls Supermax Incubator of Psychosis, CAP. TIMES,
June 30, 2001, available at 2001 WL 5893368 (on file with the North Carolina
Journal of Law & Technology).
32
D.O.J. OVERVIEW, supra note 6, at 9–10. Programming is defined, in the
Overview, as “education, work opportunities, exercise, and various other
programs aimed at improving inmates behavior, knowledge, or skills.” Id.
33
See, e.g., Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1098 (W.D. Wis. 2001)
(“Visits other than with lawyers are conducted through video screens.”);
DeMaio, supra note 24, at 207 (“Nearly all of an inmate’s contact with the
outside world—visitors, education, and even religious services—comes through
a video. . . .”); Kurki & Morris, supra note 20, at 390 (“Law library, religious,
and educational materials are typically delivered to cells and if any substance
abuse treatment, vocational training, or the like is available, it is provided

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This technology is so effective that in Boscobel an inmate need not
even leave his cell to “receive” a visitor.34
The technological isolation imposed in Supermaxes does
not stop at visits. Before the advent of the Supermax, a prison’s
programming opportunities allowed inmates to leave their cells for
vocational, educational, or spiritual training, or to receive medical
and psychological evaluations.35 When these programs and
services are available, programming options are often conducted
like visits, via closed circuit television in inmates’ cells.36
Supermax technology even controls an inmate’s meals. Meals
must be eaten in the cell, depriving inmates socializing
opportunities during a shared meal. In addition, inmates may be
fed Nutri-loaf, a tasteless but nutritious food that requires no
utensils to eat.37 The use of Nutri-loaf prompted one observer to
note that “[t]he Supermax has thus improved on bread and
water.”38
Undeniably, Supermax prisons employ the latest
technology available. While prison technology has developed at a
rapid pace, our Eighth Amendment jurisprudence has not. As a
result, our courts’ methods of interpreting what constitutes cruel
and unusual punishment are outdated given technology’s
significant impact on corrections facilities.
IV. Traditional Eighth Amendment Jurisprudence
Placing the Eighth Amendment in an historical perspective
is necessary to predict future Eighth Amendment application in
light of ever-changing prison technology. The Eighth Amendment
of the U.S. Constitution states that “[e]xcessive bail shall not be
through television, correspondence, or written materials.”); TUCSON WKLY.,
supra note 21 (describing prisoners’ isolation and lack of variation in daily
routines due to computerized cell control. The only human contact occurs when
an officer slides three meals through a food trap in the cell door to the prisoner.)
34
Jones ‘El, 164 F. Supp. 2d at 1101.
35
D.O.J. OVERVIEW, supra note 6, at 9–10.
36
Jones ‘El, 164 F. Supp. 2d at 1101.
37
Id. at 1104 (recognizing that Nutri-loaf is not used for more than seven days
and is used as a method of punishment).
38
Kurki & Morris, supra note 20, at 400.

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required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”39 Naturally, what constitutes cruel and
unusual punishment has been the subject of much debate. In one
of its earliest considerations of the “cruel and unusual” clause,
Weems v. United States,40 the Supreme Court noted the relative
lack of information regarding the Framers’ intent41 and suggested a
flexible standard to interpret the phrase.42 According to the Weems
Court, “[t]he clause of the Constitution, in the opinion of the
learned commentators may be therefore progressive, and is not
fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice.”43
Weems provided an early framework for Eighth
Amendment jurisprudence to be responsive to “humane justice.”44
After Weems, the Court considered the case of Trop v. Dulles.45
Trop placed the Eighth Amendment squarely within the
consideration of contemporary standards of right and wrong and
provided the starting point for modern-day Eighth Amendment
analysis.46 Chief Justice Warren, speaking for the majority, noted
that “[t]he basic concept underlying the Eighth Amendment is
nothing less than the dignity of man,”47 and further, “[t]he
Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.”48 By
creating a standard governed by moral and ethical considerations
of the day, the Court created additional gray areas in an already
ambiguous amendment.
39

U.S. CONST. amend. VIII.
Weems v. United States, 217 U.S. 349, 368–69 (1910) (holding that a
sentence of 12 years imprisonment with hard labor was cruel and unusual
punishment for the crime of falsification of records, and noting that “[w]hat
constitutes cruel and unusual punishments has not exactly been decided. . . . The
provision received very little debate in Congress.”).
41
Id.
42
Id.
43
Id. at 378.
44
Id.
45
Trop v. Dulles, 356 U.S. 86 (1958) (holding that revocation of citizenship for
the crime of being a military deserter was cruel and unusual).
46
Id. at 101.
47
Id. at 100.
48
Id. at 101.
40

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The death penalty, society’s most final and absolute
punishment, provides a good illustration of this fluctuating
standard. In the 1972 case Furman v. Georgia,49 the Supreme
Court determined that the death penalty as previously applied was
unconstitutional.50 Justice Douglas, in support of the judgment,
reasoned that “[i]t would seem to be incontestable that the death
penalty inflicted on one defendant is ‘unusual’ if it discriminates
against him by reason of his race, religion, wealth, social position,
or class, or if it is imposed under a procedure that gives room for
the play of such prejudices.”51
Roughly four years later, the Court considered another
Georgia case, Gregg v. Georgia.52 In Gregg, the Court held that
the death penalty was a constitutionally permissible punishment for
a defendant sentenced to death under a new capital punishment
framework.53 Writing for the Court, Justice Stewart reiterated the
evolving standard analysis:
It is clear . . . that the Eighth Amendment has not
been regarded as a static concept. . . . Thus, an
assessment of contemporary values concerning the
infliction of a challenged sanction is relevant to the
application of the Eighth Amendment. . . . [T]his
assessment does not call for a subjective judgment.
It requires, rather, that we look to objective indicia
that reflect the public attitude toward a given
sanction.54
The court has considered the Eighth Amendment, however, in
contexts broader than the death penalty.
In Estelle v. Gamble,55 for example, the Court stated that an
Eighth Amendment violation existed where there was “deliberate
49

Furman v. Georgia, 408 U.S. 238 (1972).
Id.
51
Id. at 242.
52
Gregg v. Georgia, 428 U.S. 153 (1976) (holding the revised death penalty
constitutional).
53
Id. at 154.
54
Id. at 172–73.
55
Estelle v. Gamble, 429 U.S. 97 (1976) (holding that “the Amendment
proscribes more than physically barbarous punishments” and finding an Eighth
50

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indifference to serious medical needs of prisoners.” Estelle
definitively placed the Eighth Amendment in a broader context, a
context beyond the physical torture and pain solely required for
prior Eighth Amendment violations. A few years after Estelle, the
Court heard Hutto v. Finney,57 an especially important case given
its consideration of prison conditions. The Supreme Court noted
the District Court found the following conditions existing in the
Arkansas prisons:
Confinement in punitive isolation was for an
indeterminate period of time. An average of 4, and
sometimes as many as 10 or 11, prisoners were
crowded into windowless 8’x10’ cells containing no
furniture other than a source of water and a toilet
that could only be flushed from outside the cell. At
night the prisoners were given mattresses to spread
on the floor. Although some prisoners suffered
from infectious diseases such as hepatitis and
venereal disease, mattresses were removed and
jumbled together each morning, then returned to the
cells at random in the evening. Prisoners in
isolation received fewer than 1,000 calories a day;
their meals consisted primarily of four inch squares
of “grue,” a substance created by mashing meat,
potatoes, oleo, syrup, vegetables, eggs and
seasoning into a paste and baking the mixture in a
pan.58
The Court added that “[c]onfinement in a prison or in an isolation
cell is a form of punishment subject to scrutiny under Eighth
Amendment standards.”59 The Supreme Court upheld the District
Court’s ruling that the conditions in the Arkansas prison in
question violated the cruel and unusual punishment provision of

Amendment violation where an inmate in a Texas prison was denied medical
care).
56
Id. at 104.
57
Hutto v. Finney, 437 U.S. 678 (1978).
58
Id. at 682–83.
59
Id. at 683–85.

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the Eighth Amendment. However, the Court did not go so far as
to say that punitive isolation was a “per se” violation of the Eighth
Amendment.61
The Seventh Circuit considered punitive or administrative
isolation in Bono v. Saxbe62 and found no Eighth Amendment
violation existed.63 In Bono, prisoners filed a class-action lawsuit
on behalf of all present and future inmates of the Marion
Penitentiary Control Unit, alleging that the prison conditions
violated the Eighth Amendment.64 Marion may be considered the
first Supermax, creating a special unit in the early 1980s for
disruptive prisoners and putting them on permanent lockdown.65
Judge Wood described the conditions of confinement based on the
appellants’ brief:
[E]ach inmate in the Control Unit is confined to a
cell measuring 78 by 96 inches (length and breadth)
and 100 inches high and may not participate in
group activities available to the general prison
population. Inmates are handcuffed upon leaving
their cells (except for showering or recreation), and
their access to the library is restricted. Personal
property is limited and there are few opportunities
to earn money. Prison officials exercise some
discretion over what reading materials inmates may
receive from outside the prison. “Contact” visits
with family and friends are not permitted. Thus
prisoners are separated from their visitors by a
60

Id. at 681–82. “The routine conditions that the ordinary Arkansas convict had
to endure were characterized by the District Court as ‘a dark and evil world
completely alien to the free world.’ That characterization was amply supported
by the evidence. The punishments for misconduct not serious enough to result
in punitive isolation were cruel, unusual, and unpredictable.” Id.
61
Id.
62
620 F.2d 609 (7th Cir. 1980).
63
Id.
64
Id.
65
D.O.J. OVERVIEW, supra note 6, at 9–10. “Then in 1978, the level of assaults
and violence directed toward staff and prison unrest prompted the development
of a special high-security control unit at the U.S. Penitentiary in Marion, Illinois.
In 1983, the deaths of two officers and an inmate resulted in this prison’s
conversion to indefinite administrative segregation, or lockdown.” Id.

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plexiglass partition and must communicate over
telephones. Prisoners are ‘strip searched’ before
and after such visits.66
The Seventh Circuit ultimately determined that the conditions of
confinement at Marion did not rise to the level of constitutional
violations and distinguished them from the conditions in Hutto.67
Other Circuits resolved cases similarly, noting that the Eighth
Amendment governs prison conditions but rarely finding that the
conditions in question rose to the level of a constitutional
violation.68
Rhodes v. Chapman69 provided the Supreme Court with an
opportunity to further develop Eighth Amendment jurisprudence.
In Rhodes, the Court considered "double celling," or placing two
inmates in one cell, as a potential violation of the Eighth
Amendment.70 Finding that the facts in Rhodes did not warrant a
finding of cruel and unusual punishment, the Court set forth a test
by which to consider what conditions violate the Eighth
Amendment.71 This test allowed for prison conditions to be
considered in the aggregate: “[c]onditions . . . alone or in
combination, may deprive inmates of the minimal civilized
measure of life’s necessities. Such conditions could be cruel and
unusual . . . .”72 This test for evaluating prison conditions,
subsequently termed a “totality of the circumstances” test,73 would

66

Bono, 620 F.2d at 611.
Id. at 614 (“The conditions at Marion and the conduct of defendants in the
instant case do not ‘mirror’ those in Hutto, and therefore, we see no reason to
limit the use of administrative segregation in the instant case. . . .”).
68
See Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) (holding that
complaints about medical care and denials of contact visits did not constitute
Eighth Amendment violations); Gibson v. Lynch, 652 F.2d 348 (3d Cir. 1981)
(holding that confinement to solitary conditions did not violate Eighth
Amendment rights).
69
Rhodes v. Chapman, 452 U.S. 337 (1981).
70
Id. at 340–41.
71
Id. at 347.
72
Id.
73
Russell W. Gray, Note: Wilson v. Seiter: Defining the Components of and
Proposing a Direction of Eighth Amendment Prison Condition Law, 41 AM. U.
L. REV. 1339, 1362 (1992).
67

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face the Court’s scrutiny in Wilson v. Seiter, a case that unified
previous jurisprudence concerning prison conditions and the
Eighth Amendment.75
Wilson represents the Supreme Court’s most successful
attempt to create a definite test with which to consider potential
Eighth Amendment violations concerning prison conditions.
Wilson articulated two requirements when determining whether a
prison’s conditions constitute an Eighth Amendment violation.
First, prison officials must have a culpable state of mind, termed
“deliberate indifference.”76 Justice Scalia noted that this
requirement is implicit from earlier jurisprudence.77 Scalia relies
on the Court’s holding in Estelle v. Gamble for the first part of the
Wilson test mandating “deliberate indifference.”78 Second, there
must be a showing of actual unconstitutional conditions denying a
single human need.79
In Wilson, the Court attempted to move away from
previous Eighth Amendment tests by noting that “[n]othing so
amorphous as ‘overall conditions’ can rise to the level of cruel and
unusual punishment.”80 The Court acknowledged the Rhodes v.
Chapman81 test,82 which allowed for an aggregation of prison
conditions, but interpreted it to mean that the aggregated
conditions must combine to deprive inmates of a basic human
need.83 Thus, Wilson put the focus not so much on prison
74

Wilson v. Seiter, 501 U.S. 294 (1991).
Gray, supra note 73, at 1341 (“Thus the proper analysis of Eighth Amendment
challenges to prison conditions under Wilson involves an objective and a
subjective component: the conditions must be objectively severe, and the
officials responsible for the conditions must be subjectively culpable.”).
76
Wilson, 501 U.S. at 299.
77
Id.
78
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore conclude that
deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain.”).
79
Wilson, 501 U.S. at 305.
80
Id.
81
Rhodes v. Chapman, 452 U.S. 337 (1981).
82
Id. at 347. “Conditions other than those in Gamble and Hutto, alone or in
combination, may deprive inmates of the minimal civilized measure of life’s
necessities.” Id.
83
Wilson, 501 U.S. at 304.
75

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conditions but on what effect the conditions have on inmates. In
Wilson, the Court refined the Eighth Amendment test to allow for a
more consistent application, but in so doing it articulated a high
culpability requirement on the part of prison officials coupled with
the deprivation of basic human needs.84
V. Wilson Applied Generally
In Helling v. McKinney,85 the Court considered whether the
effects of environmental tobacco smoke on an inmate in a confined
cell could rise to the level of an Eighth Amendment violation.86
Using Wilson’s objective standard to consider the seriousness of
harm87 and a subjective standard by which to measure prison
officials’ culpability,88 the Court determined that the objective
component could be applied anticipatorily; that is, the harm need
not have occurred to warrant an Eighth amendment violation.89
The Court concluded that the Eighth Amendment requires
“reasonable safety,”90 which means that prison officials cannot
“ignore a condition of confinement that is sure or very likely to
cause serious illness and needless suffering the next week or month
or year.”91

Some conditions of confinement may establish an Eighth
Amendment violation ‘in combination’ when each would not
do so alone, but only when they have a mutually enforcing
effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise--for example, a
low cell temperature at night combined with a failure to issue
blankets.
Id.
Gray, supra note 73, at 1389.
85
Helling v. McKinney, 509 U.S. 25 (1993).
86
Id. at 27–28 (noting that plaintiff Helling’s cellmate “smoked five packs a
day”).
87
Wilson, 501 U.S. at 298. See also Gray, supra note 73, at 1341.
88
Gray, supra note 73, at 1341.
89
Helling, 509 U.S. at 33.
90
Id. at 33 (quoting DeShaney v. Winnebago County Dep’t of Soc. Serv., 489
U.S. 189, 200 (1989)).
91
Id.
84

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While Helling allowed the Court to expound upon the
objective nature of the Wilson standard, Farmer v. Brennan92
provided the Court with an opportunity to expound upon the
subjective component governing prison officials’ state of mind.
Justice Souter, writing for the Court in Farmer, places the
deliberate indifference of prison officials required for an Eighth
Amendment violation somewhere between “mere negligence” and
“acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.”93 The result is a high standard
for prison official culpability.94 While the standard for culpability
is high, the Court points out that knowledge of a serious risk of
injury is sufficient to constitute deliberate indifference and a belief
that serious injury will result from prison officials’ action (or
inaction) is not required.95 Ultimately, both the objective
conditions test and the subjective state of mind test must be
satisfied for prison conditions to constitute an Eighth Amendment
violation.96

92

Farmer v. Brennan, 511 U.S. 825 (1994).
Id. at 835.
94
Id. at 837.
We hold . . . that a prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.
Id.
95
Id. at 842 (“Under the test we adopt today, an Eighth Amendment claimant
need not show that a prison official acted or failed to act believing that harm
actually would befall an inmate; it is enough that the official acted or failed to
act despite his knowledge of a substantial risk of serious harm.”).
96
Wilson v. Seiter, 501 U.S. 294, 299 (1991). See also Madrid v. Gomez, 889
F. Supp. 1146, 1246 (N.D. Cal. 1995) (reiterating and applying the Wilson
standard).
93

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VI. Supermaxes and the Eighth Amendment Under the
Wilson Standard
Wilson requires that allegations of Eighth Amendment
violations for prison conditions meet a two-part test showing a
culpable state of mind and a deprivation of a human need.97 It is in
this context that Supermax prisons must be examined. While the
Eighth Amendment is no longer applied as arbitrarily as before
Wilson, it still must be considered in light of the “evolving
standards of decency” first pronounced by Chief Justice Warren in
Trop98 and reiterated in Gregg v. Georgia.99 At least two district
courts have scrutinized the conditions created by Supermax prisons
in light of the Eighth Amendment and have found that in some
circumstances the conditions created by technological isolation
constituted cruel and unusual punishment.100
Madrid v. Gomez101 was one of the first cases to subject a
Supermax prison, California’s Pelican Bay State Prison’s Security
Housing Unit (“SHU”), to Eighth Amendment scrutiny. In
Madrid, the plaintiffs alleged that, among other things, the
California Department of Corrections “impose[d] inhumane
conditions in the Security Housing Unit.”102 Chief Judge Thelton
Henderson of the District Court for the Northern District of
California described the conditions in the SHU:

97

Gray, supra note 73, at 1389.
Trop v. Dulles, 356 U.S. 86, 101 (1958).
99
Gregg v. Georgia, 428 U.S. 153, 182 (1976) (“As we have seen, however, the
Eighth Amendment demands more than that a challenged punishment be
acceptable to contemporary society. The Court also must ask whether it
comports with the basic concept of human dignity at the core of the
Amendment.”).
100
See, e.g., Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001)
(granting injunctive relief to petitioners claiming that Wisconsin’s Supermax
Prison in Boscobel, Wisconsin, violated their Eighth Amendment right to be free
from cruel and unusual punishment); Madrid v. Gomez, 889 F. Supp. 1146
(N.D. Cal. 1995) (finding an Eighth Amendment violation where mentally ill
inmates in California were confined to Pelican Bay Penitentiary’s Security
Housing Unit).
101
Madrid, 889 F. Supp. at 1146.
102
Id. at 1156.
98

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Each cell is 80 square feet and comes equipped with
two built-in bunks and a toilet-sink unit. Cell doors
are made of heavy gauge perforated metal; this
design prevents objects from being thrown through
the door but also significantly blocks vision and
light. A skylight in each pod does allow some
natural light to enter the tier area adjacent to the
cells; however, cells are primarily lit with a
fluorescent light that can be operated by the inmate.
. . . The overall effect of the SHU is one of stark
sterility and unremitting monotony. Inmates can
spend years without ever seeing any aspect of the
outside world except for a small patch of sky. One
inmate fairly described the SHU as being “like a
space capsule where one is shot into space and left
in isolation.”103
Judge Thelton concluded, “those incarcerated in the SHU for any
length of time are severely deprived of normal human contact
regardless of whether they are single or double celled. As former
Warden Fenton testified, conditions in SHU amount to a ‘virtual
total deprivation, including, insofar as possible, deprivation of
human contact.’”104 The Court in Madrid determined that the
ramifications of these technologically advanced prisons rise to a
level of cruelty that violates mentally ill inmates’ Eighth
Amendment rights.105 The Court determined that Pelican Bay
Prison officials manifested the deliberate indifference articulated in
Wilson and later defined in Farmer necessary for an Eighth
Amendment violation.106 The Court found sufficient harm
resulting from the conditions of confinement required to meet the
second part of the Wilson test.107
103

Id. at 1228–29.
Id. at 1230.
105
Id. at 1278.
106
Id. at 1255 (“Not only have plaintiffs established a pattern of excessive force
at Pelican Bay that has caused sufficient harm to demonstrate the ‘infliction of
pain’ on a classwide [sic] basis, but they have also shown that this pattern is
attributable, not to inadvertence or mistake, but to defendants’ deliberate
indifference and knowing willingness that harm occur.”).
107
Id. at 1260.
104

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The conditions of confinement in Madrid resulted in the
severe isolation of inmates, and the court considered the effects of
this isolation on inmates’ mental health as it related to the Eighth
Amendment.108 The Madrid court concluded that conditions that
inflict serious mental pain or injury implicate the Eighth
Amendment109 but found not all inmates in the SHU were
sufficiently at risk of developing serious mental health problems as
a result of their confinement.110 However, inmates who
demonstrated a “particularly high risk for suffering very serious or
severe injury to their mental health”111 were removed from
incarceration in the SHU.112 Although not a total victory for the
plaintiffs, Madrid represented an acknowledgement that conditions
created by the SHU could be tantamount to constitutional
violations.113
More recently, the Western District of Wisconsin
considered Supermax prisons in Jones ‘El v. Berge.114 In Jones
‘El, inmates sought an injunction to terminate the practice of
housing mentally ill inmates in Wisconsin’s Supermax
Correctional Institution in Boscobel.115 The court granted the
injunction based upon its finding of the conditions created by the
technologically advanced prison.116 According to the court:
Inmates on Level One at the State of Wisconsin’s
Supermax Correctional Institution in Boscobel,
Wisconsin spend all but four hours per week
confined to a cell. The ‘boxcar’ style door on the
cell is solid except for a shutter and a trap door that
opens into the dead space of a vestibule through
which a guard may transfer items to the inmate
108

Id.
Id.
110
Id. at 1265.
111
Id.
112
Id. at 1266.
113
Madrid, 889 F. Supp. at 1267.
114
Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001).
115
Id. at 1098 (noting that the injunction also sought to compel independent
psychiatric evaluation for all inmates not already evaluated to determine fitness
to remain in the Supermax).
116
Id. at 1098–99.
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without interacting with him. The cells are
illuminated 24 hours a day. Inmates receive no
outdoor exercise. Their personal possessions are
severely restricted: one religious text, one box of
legal materials and 25 personal letters. They are
permitted no clocks, radios, watches, cassette
players or televisions. The temperature fluctuates
wildly, reaching extremely high and low
temperatures depending on the season.117
Given these conditions, the district judge reached a conclusion
similar to the one reached in Madrid: the extreme isolation and
solitary nature of Supermax prisons inflicts unconstitutional
hardship on mentally ill inmates.118 In granting its injunction
prohibiting mentally ill inmates from being housed in Wisconsin’s
Supermax facility, the Court determined that there was sufficient
evidence to warrant a finding under the Wilson standard that both
the objective and subjective components of the Supreme Court’s
Eighth Amendment analysis were met.119 The Court notes that the
Wisconsin Supermax’s own procedures of screening inmates for
mental illness when transferred to the unit support a finding of
deliberate indifference.120 Further, the serious risk of harm to
117
118

Id. at 1098.
Id. at 1117–18.
The almost complete isolation and sensory deprivation that
constitute conditions of confinement in Levels One and Two
at Supermax are not in dispute. What is in dispute is the
extent to which these conditions constitute sufficiently serious
conditions of confinement to implicate the protection of the
Eighth Amendment for seriously mentally ill inmates confined
there. Credible evidence indicates that Supermax is not
appropriate for seriously mentally ill inmates because of the
isolation resulting form the physical layout, the inadequate
level of staffing and the customs and policies.

Id.
119

Id. at 1117.
Id. at 1121. The defendants did not and could not argue that they were not
aware of the risks of placing mentally ill inmates at Supermax because the
presence of a Mental Health Screening Tool was a clear admission of
understanding that such harsh conditions were inappropriate for that particular
population. Id.
120

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mentally ill inmates rises to a level of constitutional prohibition,121
thus completing the two-step Wilson analysis.
Coupled with Madrid, the Jones ‘El decision to exclude
mentally ill inmates from Supermax confinement provides needed
support for future Eighth Amendment challenges. While these
decisions granted relief only to mentally ill inmates, they laid the
foundation for Eighth Amendment attacks on Supermax prison
conditions by all inmates confined within their walls. Failure to
build upon this foundation ignores the possibility that many
American prisoners are being subjected to cruel and unusual
punishment. Though still limited in number, arguments that
Supermax prisons constitute cruel and unusual punishment find
support not only in the courts122 but also among mental health
professionals.123
VII. Towards An Evolving Standard
Mental health professionals expressed concern about the
effects of solitary confinement long before the advent of the
modern Supermax.124 With the new levels of isolation possible
through Supermax technology, investigation into the mental health
effects of such prisons is more essential than ever. If the Eighth
Amendment is to retain its foundation in preserving the “dignity of
man,”125 adjudication of Eighth Amendment claims must occur in
light of contemporary standards of decency, as articulated not by
the general public but by mental health professionals who are

121

Id.
See, e.g., id. at 1096 (W.D. Wisc. 2001); Madrid v. Gomez, 889 F. Supp.
1146 (N.D. Cal. 1995).
123
See Craig Haney, Psychology and the Limits to Prison Pain: Confronting the
Coming Crisis in Eighth Amendment Law, 3 PSYCHOL. PUB. POL’Y & L. 499
(1997) (analyzing the Eighth Amendment in a psychological context); Haney &
Haney, supra note 8 (commenting on the relationship between the modern
Supermax and traditional concerns among the mental health profession
regarding solitary confinement).
124
See, e.g., Haney & Haney, supra note 8, at 496–98 (discussing the history of
psychological analysis of solitary confinement).
125
Trop v. Dulles, 356 U.S. 86, 100 (1958).
122

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126

uniquely qualified to lead this debate.
Mere examination into
the general public’s opinion of Supermax prisons is insufficient, as
this public opinion is in fact part of the reason why America’s
Supermax inmates are now in a precarious constitutional
situation.127
According to Craig Haney, a psychologist who has studied
Supermax prisons extensively,128America’s debate over the
relationship between secure prisons and humane imprisonment is
“lopsided;” it all but ignores the rights of prisoners to be free from
the damage created by the severe isolation encountered in some
prisons.129 As Haney suggests, the psychological community must
demand that potential Eighth Amendment violations be evaluated
in light of psychologists’ increasing awareness of the effects of
isolation.130 Despite the difficulty in replicating the actual effects
of long-term Supermax isolation and confinement, several studies
examine the effects of extreme isolation on inmates housed in
Supermax and other maximum-security prison environments.131
126

See id. at 501 (“[C]ontemporary psychological theory has the capacity to both
rekindle a debate about humane limits to pain and provide a blueprint for
creating an intelligent policy of crime control that does not sacrifice correctional
justice.”).
127
See, e.g., Haney, supra note 123, at 529 (“Yet, the combination of these two
broad trends—the overwhelming and still rising tide of prisoners and the
dramatic shift in public opinion—seems to have dampened the enthusiasm of the
courts for any further systematic and effective intervention into the cruelty of
prison life.”).
128
See generally id. (examining the Eighth Amendment in light of contemporary
prison psychology); Haney & Haney, supra note 8 (exploring modern prisons
and their effect on inmates’ mental health).
129
Haney, supra note 123, at 500. “[T]he debate has been virtually suspended.
The political mandate for social control has become so absolute that no
countervailing values or interest are interposed to balance or leaven the pain that
may be inflicted in the pursuit of civil order.” Id.
130
Id. at 501. “It is time for the discipline of psychology both to assume
responsibility for its historical connection to the shape and direction of past
correctional policies and to play a more significant role in developing pathways
out of the current crisis.” Id.
131
Haney & Haney, supra note 8, at 515–16. Although some isolation studies
have been conducted in actual prison settings, these studies are significantly
limited by the fact that the typical 4–10 day research period is much less than
the isolation periods actually experienced by prisoners. Id.

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These studies, despite their limitations, paint the picture of a stark
environment with severe effects on their inhabitants’ mental
health.132 Some studies place the effects of isolation within the
rubric of post-traumatic stress disorder (“PTSD”).133 Termed
“complex PTSD,” the effects of isolation can result in “protracted
depression, apathy, and the development of a profound sense of
hopelessness as the long-term psychological costs of adapting to an
oppressive situation.”134 Prisoners subjected to the extreme
isolation of Supermax prisons will face a test of their psychological
health. Some prisoners will fail and be deemed unsuitable for
confinement, while other successful candidates for Supermax-type
confinement will develop clinical depression, paranoia, and
psychosis to cope with the stress of their Supermax experience.135
Mental health professionals are not the only members of
society concerned about the advent and increased usage of
Supermax prisons.136 Walter Dickey, former Secretary of the
Wisconsin Department to Corrections, has voiced his concerns

132

Id. at 517–18. Despite the limitations on isolation research, some valuable
clinical data has emerged. In one study involving 21 isolated prisoners, three
typical response patterns of the prisoners were noted: verbal aggression,
physical destruction, and development of a fantasy world that included paranoid
psychosis. These were accompanied by a reaction of uncontrolled rage and an
increase in homicidal and suicidal tendencies. Id.
133
Haney, supra note 123, at 538. Haney notes that the effects of extreme
isolation were first identified as suggesting transient situational disturbance, a
DSM-IV diagnosis. Id. However, given the long term effects which manifested
themselves even after imprisonment ended, the more appropriate diagnosis was
a type of post-traumatic stress disorder or PTSD. Id.
134
Id. at 539.
135
Id. at 540 (“Prison stress is an extreme test of the strength and resiliency of a
prisoner’s psychological makeup. Some fail the test. Thus, another group of
prisoners adapt to the pains of imprisonment by developing classically
diagnosable psychological disorders—clinical depression, paranoia, and
psychosis.”).
136
See Schaeffer-Duffy, supra note 7 (“Human rights advocates and even some
corrections officials say the policy [of increasing reliance on supermax security]
has led to cruel and capricious confinements, an increase in prisoner abuse and
even torture.”). See also Haney, supra note 123, at 505 (“Many commentators
have acknowledged what is now referred to as the ‘national scandal of living
conditions in American prisons.’”).

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137

about Wisconsin’s Supermax prison in Boscobel.
According to
Mr. Dickey, technology’s role in Supermax prisons is not to be
underestimated:
The desire for control coupled with advances in
technology leads often to undue reliance on
cameras, locks and isolation cells for security, when
the best security is the product of human
interaction. . . . When we are awash in the
technology of inmate control, it is easy to forget that
it is hard to harm someone who treats you decently,
respectfully and firmly.138
Mr. Dickey suggests that Wisconsin’s Supermax should be
converted into a traditional maximum-security prison, or
alternatively, inmates should be rotated through the Supermax to
share the burden equally.139 Ultimately, Mr. Dickey concludes that
Wisconsin’s Supermax was a mistake and that any benefit gained
is outweighed by the harm caused.140
Perhaps most disturbing is the realization that Supermax
prisons provide the positive features of safety and security, yet
their inhabitants may be slowly going mad. As one psychologist
points out, “studies have confirmed the value of psychological
screening and training to prepare military personnel for assignment
in Antarctica and other isolated and confined environments. These
precautions appear necessary to minimize the negative effects of
the environment on those who will live there.”141 The military
further strives to insulate individuals from the debilitating effects
of sensory deprivation:
[A] special emphasis on “environmental design” is
needed to minimize the effects of such isolation
stress on human behavior. For example, research
focused on maximizing the habitability of this kind
137

Dickey, supra note 2.
Id.
139
Id.
140
Id. (“If we were really honest with ourselves, we’d admit that Supermax is
wrong – a moral and practical mistake. We don’t need it. It damages more than
it helps.”).
141
Haney & Haney, supra note 8, at 506–07.
138

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of confinement and isolation indicates that
“windows are a critical design feature” because they
allow the entry of natural light, make it possible to
communicate with the outside world, and reduce
feelings of being cramped.142
Contrast this to the description of conditions in Wisconsin’s
Supermax prison found by the court in Jones ‘El:
A five-inch strip of opaque glass runs along the top
edge of one wall of each cell. By standing on the
bed and craning his neck, an inmate can glimpse the
sky through a small sealed skylight. In general,
seriously mentally ill inmates do not have the
presence of mind to perform this maneuver.
Inmates are not allowed to wear watches or have
clocks and it is not easy for them to gauge time
from the restricted view they have of the sky. . . The
constant illumination [artificial] disrupts their
diurnal rhythm and adds to the sense of
disorientation, especially when they do not know
the time of day.143
Supermax prisons intentionally impose enormous environmental
challenges on prisoners that require strenuous Eighth Amendment
scrutiny. Subjecting Supermaxes to the Wilson standard yields
disturbing results. Supermax prisons are constructed with isolation
in mind, and they employ the latest technology to ensure that
extreme isolation is achieved.144 Prison officials cannot deny
knowledge of these intended effects of Supermax prisons.145
Further, scholarship regarding the effects of isolation reveals a
devastating effect on all inmates, especially those with mental
illness.146
The Supreme Court in Farmer makes clear that “an Eighth
Amendment claimant need not show that a prison official acted or
failed to act believing that harm actually would befall an inmate; it
142

Id. at 506–07.
Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1099–100 (W.D. Wis. 2001).
144
See supra notes 20–38 and accompanying text.
145
See supra notes 124–143 and accompanying text.
146
See supra notes 97–123 and accompanying text.
143

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is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.”147 A documented
substantial risk of serious harm exists within the walls of
Supermax prisons. Given the Helling Court’s conclusion that harm
need not be presently manifested to warrant an Eighth Amendment
violation, one can conclude that Supermax prisons currently
represent an Eighth Amendment violation for all of their residents,
not just the mentally ill.
VIII. Conclusion
Technological advancements of Supermax prisons allow
for a level of isolation of inmates unrivaled in the history of
corrections, yet technology unchecked can lead to undesired and
unintended consequences. Supermaxes, designed and constructed
with the noble goals of protecting staff and inmates, instead result
in a level of isolation for Supermax inmates that may be a violation
of the Eighth Amendment. Because these prisons are designed
with isolation in mind, prison officials are not unaware of the
reality or the consequences that these prisons impose. Further,
mental health professionals conclude that the effects of such
isolation can be devastating to inmates’ mental health.
Supermaxes, while technologically advanced, require a
corresponding commitment to protection of inmates’ mental
health. Absent this commitment, Supermax prisons will continue
to deprive their residents of their Eighth Amendment right to be
free from cruel and unusual punishment. As one commentator
notes, “[i]roncially, absent more meaningful, psychologicallyinformed legal restraints, intervention, and oversight, these
‘prisons of the future’ promise to return us to some of the worst
norms of the nineteenth century.”148

147
148

Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Haney & Haney, supra note 8, at 570.