Michigan Law Review First Impressions
Volume 114

2016

To Seek a Newer World: Prisoners’ Rights at the
Frontier
David M. Shapiro
Northwestern Pritzker School of Law

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David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, 114 Mich. L. Rev. First Impressions 124 (2016).
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TO SEEK A NEWER WORLD: PRISONERS’ RIGHTS
AT THE FRONTIER
David M. Shapiro *
Prisoners’ rights lawyers have long faced a dismal legal landscape. Yet,
2015 was a remarkable year for prison litigation that could signal a new
period for this area of law—the Supreme Court handed down decisions that
will reverberate in prison jurisprudence for decades to come. New questions
have been asked, new avenues opened. This piece is about what the Court
has done recently, and what possibilities it has opened for the future. More
broadly, I suggest that the Court may be subjecting prison officials to greater
scrutiny and that this shifting judicial landscape reflects an evolving social
discourse about prison conditions and mass incarceration. With the United
States leading the world in incarcerating its own people, 1 the federal courts’
attention to prison conditions is long overdue.
The recent judicial decisions were made all the more surprising by a
long and dreary prologue: In prison law, deference has long been the order
of the day. 2 In the 1960s and 1970s, federal judges had begun, for the first
time in American history, to scrutinize and manage conditions in prisons
and jails, 3 but deference soon took hold. Lacking the training and technical
competence to run prisons, lower court judges were instructed by the
Supreme Court to back off—let the jailers run the jails. 4 Deference to prison
officials’ judgment was the dominant note in prison conditions law for at
least three decades. In this field, a lawyer had to be naïve to bring a case to

* Clinical Assistant Professor of Law, Northwestern Pritzker School of Law. Evan
Bianchi contributed invaluable research assistance to this article, and Steven Lubet improved
the piece with insightful comments.
1. DAVID SHAPIRO, ACLU, BANKING ON BONDAGE: PRIVATE PRISONS AND MASS
INCARCERATION 5 (2011), https://www.aclu.org/files/assets/bankingonbondage_20111102.pdf
[https://perma.cc/9KGX-5MN4].
2. See, e.g., Lewis v. Casey, 518 U.S. 343 (1996); O’Lone v. Estate of Shabazz, 482 U.S.
342 (1987); Turner v. Safley, 482 U.S. 78 (1987); Bell v. Wolfish, 441 U.S. 520 (1979); Pell v.
Procunier, 417 U.S. 817 (1974).
3. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974) (holding that prisoners who lose
good time credits as part of disciplinary actions are entitled to due process protection),
overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989); Procunier v. Martinez, 416 U.S. 396
(1974) (invalidating unjustifiable prisoner-mail censorship regulations); Jack E. Call, The
Supreme Court and Prisoners’ Rights, 59 FED. PROB., Mar. 1995, at 36, 36.
4. See supra note 2; see also Call, supra note 3, at 38–41.

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change the law. The strategy that worked was to litigate the facts and choose
cases that exposed truly inhuman conditions. That did not assure victory,
but the conventional wisdom was that anything less assured defeat.
In 2015, however, judicial scrutiny intensified while deference at last
receded. In Holt v. Hobbs, the Supreme Court, all but scoffing at a restriction
on a prisoner’s religious exercise, handed down a decision that upended a
vast body of lower court precedent. 5 In Kingsley v. Hendrickson, the Court
lowered the standard for excessive force claims brought by pretrial detainees
and signaled that current law may set the bar too high for other claims as
well. 6 In Davis v. Ayala, Justice Kennedy devoted a concurrence to the
dangers of solitary confinement, an opinion made all the more remarkable
by the fact that the underlying case had almost nothing to do with solitary
confinement. 7
These developments suggest there may be vitality in the business of
prisoners’ rights after all. To be sure, two majority opinions and a
concurrence do not make a legal revolution, and deference will always cast
its long shadow over the doctrine. Yet the Court’s willingness to take a
harder look at prisons suggests that judicial deference to prison authorities
will become less absolute. At minimum, 2015 created a range of new legal
possibilities. It put to rest the notion that the big questions had all been
settled. It proved that in the universe of prison law, much remains for the
making.
I.

RELIGIOUS LIBERTY: A NEW ORDER

Holt v. Hobbs, handed down by the Court on January 20, 2015,
revolutionizes the law protecting the religious freedom of prisoners under
the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA). 8 The decision unsettles an abundance of precedent, and lower
courts will likely be grappling with Holt’s aftershocks for years to come.
The pre-Holt landscape began with the enactment of RLUIPA in 2000.
RLUIPA applies to cases alleging that prison regulations or land use
regulations burden religious exercise. Under RLUIPA, a burden on religious
exercise is invalid unless it is the least restrictive means of furthering a
compelling governmental interest. 9 The RLUIPA standard is clearly more
exacting than the constitutional standard for prisoner religious claims: to
defeat a claim arising under the Free Exercise Clause, prison officials need

5.
6.
7.
8.
9.

See Holt v. Hobbs, 135 S. Ct. 853 (2015).
See Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).
See Davis v. Ayala, 135 S. Ct. 2187 (2015).
42 U.S.C. §§ 2000cc to cc-5 (2012).
Id. § 2000cc-1(a).

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only show that a restriction on religious practice was “reasonably related to
legitimate penological interests.” 10
In 2005, the Supreme Court upheld RLUIPA in Cutter v. Wilkinson,
ruling that the statute did not violate the Establishment Clause. 11 But this
victory for prisoners’ religious rights came at a cost: in dicta, the Court bled
the statute of much of its force. While the text of RLUIPA recites the
customary language of strict scrutiny, using the terms “compelling interest”
and “least restrictive means,” the Court’s unanimous opinion, authored by
Justice Ginsburg, suggested that strict scrutiny under RLUIPA was not “real”
strict scrutiny. “[P]rison security is a compelling state interest,” the Court
wrote, and “deference is due to institutional officials’ expertise in this area.” 12
The opinion concluded that “[l]awmakers supporting RLUIPA . . . .
anticipated that courts would apply the Act’s standard with ‘due deference to
the experience and expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good order, security and
discipline, consistent with consideration of costs and limited resources.’ ” 13
Following Cutter, it was not entirely clear what this relaxed form of strict
scrutiny meant. Since strict scrutiny and deference to the government are in
a sense opposites, there was incoherence in the very notion of strict scrutiny
with deference. The impact of the decision, however, was massive. Following
Cutter, lower courts cited dicta from that case involving deference hundreds
of times. 14 Applying the Cutter standard, courts upheld a vast array of
restrictions on core religious practices. 15
The petitioner in Holt was a Muslim prisoner in Arkansas, who wished
to grow a half-inch beard for religious reasons. 16 He sought an injunction
10. O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley,
482 U.S. 78, 89 (1987)).
11. Cutter v. Wilkinson, 544 U.S. 709, 713–14 (2005).
12. Id. at 725 n.13.
13. Id. at 723 (citing remarks of Senator Hatch, 146 CONG. REC. 16,698, 16,700 (2000)).
14. Search Cutter v. Wilkinson, 544 U.S. 709 (2005), in WestlawNext. Follow the “Citing
References” hyperlink, narrow the search to “Cases,” and narrow jurisdiction to “Federal
Courts of Appeals” and “Federal District Courts.” Then search within results for “deference.”
See results list; see e.g., Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781 (5th Cir.
2012); Washington v. Klem, 497 F.3d 272 (3d Cir. 2007); Lovelace v. Lee, 472 F.3d 174 (4th Cir.
2006).
15. See, e.g., Chance v. Tex. Dep’t of Criminal Justice, 730 F.3d 404, 412–17 (5th Cir.
2013) (stating that prison’s schedule of Native American religious services and restrictions on
communal pipe-smoking and Native American smudging ritual did not violate RLUIPA); Van
Wyhe v. Reisch, 581 F.3d 639, 657 (8th Cir. 2009) (stating that denying additional group
religious study time, among other restrictions, did not violate RLUIPA).
16. Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). This is not to suggest that the RLUIPA
standard was applied uniformly by all the federal courts of appeals—some circuits took a

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protecting him against punishment for growing such a beard. 17 Every lower
court judge to consider the case—the magistrate judge, the district court
judge, and a unanimous Eighth Circuit panel—believed that prohibiting the
beard did not violate RLUIPA. 18 The prison argued that the plaintiff might
escape by suddenly changing his appearance (i.e., by shaving the beard) or
that he might conceal contraband in his facial hair. 19
In a unanimous opinion by Justice Alito, the Supreme Court rejected
these arguments as utterly unconvincing. 20 The Court’s emphasis on
scrutiny, not deference, starkly contrasted with Cutter. “RLUIPA does not
permit . . . unquestioning deference,” Justice Alito wrote. 21 “Prison officials
are experts in running prisons and evaluating the likely effects of altering
prison rules, and courts should respect that expertise. But that respect does
not justify the abdication of the responsibility, conferred by Congress, to
apply RLUIPA’s rigorous standard.” 22 To accept the government’s rationale
for prohibiting the beard would require, the Court reasoned, “a degree of
deference that is tantamount to unquestioning acceptance.” 23 Not only did
the Court depart from Cutter’s deferential analysis—the unanimous opinion
did not even mention the prior ruling.
Why does Holt not even mention Cutter? Surely not because Cutter was
insufficiently relevant—it was the only prior Supreme Court decision
interpreting RLUIPA’s standard. Cutter addressed the same issue that Holt
did, and in detail. If there had been five or six such decisions, one might
allow for the possibility that the Court omitted a particular case for the sake
of brevity, or because other cases made the same point. Under the
circumstances here, however, the omission of Cutter must have been
deliberate.
One possibility is that the Court’s reticence about Cutter is an implicit
instruction that the lower courts must reconcile the two rulings. Another is
that the Court’s silence is damning to Cutter, and that the prior decision has
been sent to the dustbin of history.
The latter view is more plausible for two reasons. First, the Cutter and
Holt standards are wholly irreconcilable: one calls for deference, while the

harder look than others at the government’s rationales. James D. Nelson, Incarceration,
Accommodation, and Strict Scrutiny, 95 VA. L. REV. 2053, 2068–71 (2009).
17. Complaint at 3–4, Hobbs, 135 S. Ct. 853, No. 5:11-cv-00164 (E.D. Ark. June 28,
2011).
18. Hobbs, 135 S. Ct. at 861.
19. Id. at 863–64.
20. Id. at 864–65.
21. Id. at 864.
22. Id.
23. Id.

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other eschews it. Second, Justice Sotomayor wrote a concurrence in Holt in
which she discussed Cutter deference at length. 24 Cloaked as a statement of
agreement with the lead opinion, the concurrence is in fact an attempt to gut
the decision and resurrect Cutter. “Nothing in the Court’s opinion calls into
question our prior holding in Cutter v. Wilkinson,” Justice Sotomayor
asserted, finding that the Court’s opinion did not preclude deferring to
prison officials’ reasoning when that deference is due—that is, when prison
officials “offer a plausible explanation for their chosen policy.” 25
No other Justice joined the Sotomayor concurrence—all eight of the
remaining Justices made a decision to join the lead opinion, which gave
Cutter a cold shoulder. The point of the concurrence was to preserve Cutter
deference; eight members of the Court had no interest in that endeavor. This
is powerful evidence that Cutter is dead.
Perhaps the best argument against the view that Holt wholly jettisons
Cutter is that the opinion does not explicitly reject the earlier ruling.
Overruling prior cases by implication is disfavored, and, in the absence of a
clear statement, it generally is not for lower courts to decide that higher
tribunals have overruled their own precedent. 26 But here the argument is less
persuasive because Cutter’s principal holding was that RLUIPA did not
violate the Establishment Clause. Cutter’s discussion of the RLUIPA
standard was part of the reasoning, but not part of the narrow holding. In
other words, Cutter remains good law because its holding that RLUIPA is
constitutional is intact. In Holt, then, because the issue regarded RLUIPA’s
standard and not RLUIPA’s constitutionality, there was nothing to overrule.
The Court merely ignored its previous, erroneous dictum.
In the months and years ahead, the lower courts will face powerful
incentives to ignore the full effect of Holt. As noted above, a great panoply of
religious claims has been decided under the Cutter standard. Under a correct
reading of Holt, however, none of these decisions are unquestionably good
law because all were decided under the wrong legal standard. Faithful
implementation of Holt, then, demands a period of doctrinal chaos in the
lower courts.
Early signs from the lower courts are not encouraging—an effort seems
to be underway to deny Holt its full effect. Since Holt, more than fifty federal

24. Id. at 867 (Sotomayor, J., concurring).
25. Id.
26. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)
(“If a precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions.”).

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cases have relied upon the Cutter dicta regarding deference in adjudicating
prisoners’ religious freedom claims. 27
One troubling example comes from an Eleventh Circuit decision
rendered soon after Holt. In Knight v. Thompson, the Eleventh Circuit
affirmed a grant of summary judgment against Native American inmates
who challenged the hair-length policy of the Alabama Department of
Corrections (ADOC) under RLUIPA. 28 The petitioners challenged a policy
requiring male inmates to keep their hair off of the neck and ears. They
argued that the policy imposed a substantial burdened on their Native
American religion, which dictated that they wear their hair unshorn. 29
Knight was decided before Holt, but the Supreme Court vacated the original
decision and remanded the case for reconsideration in light of the Holt
decision. 30 On remand, the Eleventh Circuit reinstated its original decision,
which relied heavily on Cutter, and did not modify it to address Holt’s
RLUIPA standard. 31
Several lower courts have attempted to reconcile the Cutter and Holt
standards, although often without much independent analysis. 32 Such courts
have found the two standards coexistent and not contradictory. For example,
in Staples v. N.H. State Prison, the Court implied that Cutter is alive and well
when it cited Justice Sotomayor’s concurrence and stated that “Holt
cautions, however, that where a prison provides security-based justifications
for its regulation, courts should afford a measure of deference and should
not substitute their own judgment for that of the prison.” 33 On the other
hand, several courts have fully adopted the Holt standard without giving
authoritative weight to Cutter. 34 One might speculate that the recent decision
27. Search Cutter v. Wilkinson, 544 U.S. 709 (2005), in WestlawNext. Follow the “Citing
References” hyperlink, narrow the search to “Cases,” narrow jurisdiction to “Federal Courts of
Appeals” and “Federal District Courts,” and narrow “Date” to “After 1/20/2015.” Then search
within results for “deference.” See results list; see, e.g., Moussazadeh v. Tex. Dep’t of Criminal
Justice, 703 F.3d 781 (5th Cir. 2012); Washington v. Klem, 497 F.3d 272 (3d Cir. 2007);
Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006).
28. Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013), vacated, 135 S. Ct. 1173
(2015), reinstated in part and suspended in part, 797 F.3d 934 (11th Cir. 2015).
29. See id. at 1276.
30. Knight v. Thompson, 135 S. Ct. 1173 (2015).
31. Compare Knight, 723 F.3d at 1282–83, with Knight, 797 F.3d at 943–44.
32. See, e.g., Hughes v. Heimgartner, No. 5:12-CV-3250-JAR, 2015 WL 1292253, at *7
(D. Kan. Mar. 23, 2015); Wright v. Lassiter, No. 5:13-CT-3245-D, 2015 WL 3650746, at *4
(E.D.N.C. June 11, 2015), aff’d in part, vacated in part, remanded, No. 15–6958, 2016 WL
626377 (4th Cir. 2016).
33. Staples v. N.H. State Prison, No. 14-CV-473-LM, 2015 WL 4067139, at *3 (D.N.H.
July 2, 2015).
34. See Cole v. Danberg, No. 10-088-GMS, 2015 WL 5437083, at *5 (D. Del. Sept. 14,
2015) (“RLUIPA . . . does not permit unquestioning deference.”); Watkins v. Jones, No.

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will free lower court judges who take prisoners’ religious claims seriously to
side with prisoners more frequently, but that it will not affect the rulings of
judges hostile to such claims because the Supreme Court is unlikely to take
an active role in policing fidelity to the Holt standard. 35
II.

PRETRIAL DETENTION: A NEW FRONTIER OPENED

No less significant than Holt v. Hobbs is the Court’s June 22, 2015
decision in Kingsley v. Hendrickson, which set the legal standard for use of
force against pretrial detainees held in jails. 36 Prior to Kingsley, the Supreme
Court had set a breathtakingly high bar for use of force claims brought by
post-conviction prisoners, holding that force in prison does not violate the
Eighth Amendment’s Cruel and Unusual Punishments Clause unless the
force is “malicious[] and sadistic[].” 37 At least two federal appellate courts
assumed that the same standard applied to excessive force claims brought by
pretrial detainees against jail officials. 38 Kingsley, however, says otherwise.
The Supreme Court first articulated the malicious and sadistic standard
and applied it to post-conviction prisoners in Whitley v. Albers, in which a
prison officer shot a prisoner in the leg during a riot. 39 Adopting a portion of
a formulation Judge Friendly coined in an earlier case, 40 the Court held that
where an officer uses force to “resolve a disturbance . . . that indisputably
poses significant risks to the safety of inmates and prison staff,” the
determination of “whether the measure taken inflicted unnecessary and
wanton pain and suffering ultimately turns on ‘whether force was applied in
a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.’ ”41 Because the standard is
only met by malicious and sadistic actions, the test allows an officer to use

4:12CV215-RH/CAS, 2015 WL 5468647, at *13 (N.D. Fla. Aug. 28, 2015), report and
recommendation adopted in part, No. 4:12CV215-RH/CAS, 2015 WL 5468648 (N.D. Fla. Sept.
15, 2015).
35. Cf. David Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84
GEO. WASH. L. REV. (forthcoming 2016) (arguing that the lower courts have given prison
authorities far greater deference in speech cases than the Supreme Court intended).
36. Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).
37. Whitley v. Albers, 475 U.S. 312, 320 (1986); Hudson v. McMillian, 503 U.S. 1, 7
(1992).
38. See Griffin v. Hardrick, 604 F.3d 949, 954 (6th Cir. 2010); Bozeman v. Orum, 422
F.3d 1265, 1271 (11th Cir. 2005), abrogated by Kingsley, 135 S. Ct. 2466.
39. Whitley v. Albers, 475 U.S. at 316, 320–22.
40. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), overruled by, Graham v.
Connor, 490 U.S. 386 (1989).
41. Whitley, 475 U.S. at 320–21 (quoting Johnson, 481 F.2d at 1033).

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force that is unreasonable and excessive, so long as the officer is not
motivated by malice or sadism. 42
In defending this exacting standard, the Court in Whitley appealed to
the interest in deferring to decisions made by prison officials, often in
dangerous circumstances and in the heat of the moment: “When the ‘everpresent potential for violent confrontation and conflagration,’ ripens into
actual unrest and conflict, the admonition that ‘a prison’s internal security is
peculiarly a matter normally left to the discretion of prison administrators’
carries special weight.” 43
While Whitley set the standard for use of force against post-conviction
prisoners, it did not address whether the same standard applies to jail
detainees, who remain innocent until proven guilty. On the one hand, the
Court’s characterization of prisons as dangerous places requiring officers to
make split-second decisions could be taken to suggest that officers in a jail,
who, like their prison counterparts, must make instantaneous decisions
about the use of force, should receive the same level of deference and
latitude. On the other hand, the Eighth Amendment protects postconviction prisoners against cruel and unusual punishment, whereas the
Due Process Clause protects pretrial detainees against any punishment. 44
Thus, “leveling down” the jail standard to the prison standard would mean
that freedom from all punishment for pretrial detainees meant nothing more
than freedom from cruel and unusual punishment.
Kingsley involved a detainee in a Wisconsin jail who sought damages for
injuries sustained when officers allegedly slammed his head into a concrete
bunk and shot him with a Taser. 45 The judge issued a jury instruction that
required the jury to find for the defendants unless it found that the officers
acted with a subjectively culpable state of mind—the use of unreasonable
force would not suffice. 46 The jury found for the defendants, and the Seventh
Circuit rejected Kingsley’s challenge to the jury instruction. 47 The Supreme
Court granted certiorari.
In a 5–4 decision authored by Justice Breyer (and joined by Justices
Kennedy, Ginsburg, Kagan, and Sotomayor), the Court in Kingsley held that
pretrial detainees in use of force cases enjoy greater constitutional
protections than post-conviction prisoners. So long as the use of force is
intentional (meaning force was not used accidentally, as when an officer

42. See id. at 322.
43. Id. at 321–22 (citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 349,
n.14 (1981) and Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 132 (1977)).
44. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
45. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470 (2015).
46. Id. at 2476–77.
47. Id. at 2471.

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trips and falls on a prisoner) the force is unconstitutional if it is objectively
unreasonable. 48 The pretrial detainee need not show that the officer acted
with bad subjective intent at all, much less that the officer’s intent was to
maliciously and sadistically inflict pain. 49
If Kingsley only affected the standard for use of force claims brought by
pretrial detainees, it would be an important case: about 450,000 people are
detained before a trial in American jails at any given time. 50 But Kingsley did
far more—its logic raises broad questions about standards for other claims
brought by incarcerated men and women.
Kingsley suggests that much of the lower court jurisprudence regarding
pretrial conditions is wrong because those decisions borrow heavily from
Supreme Court precedent regarding post-conviction prisoners. Take, for
example, two common categories of cases—medical care claims and claims
that staff members failed to adequately protect prisoners from harm by other
prisoners. The Supreme Court held in Estelle v. Gamble and Farmer v.
Brennan that the standard for such claims, when brought by post-conviction
prisoners, is deliberate indifference. 51 It is not enough that a doctor or officer
jeopardized a prisoner’s safety by acting in an unreasonable, negligent, or
even grossly negligent manner. The prisoner must prove that the doctor or
officer subjectively knew of a substantial risk of severe harm to the prisoner,
and acted or failed to act despite possessing such knowledge. 52
The Federal Reporter is filled with decisions in which lower courts have
applied the deliberate indifference standard to medical care and failure-toprotect claims brought by pretrial detainees. 53 But all of these decisions may
be wrong. When applied to pretrial detainees, the deliberate indifference
requirement is at odds with the logic of Kingsley, which suggests that due
process provides to pretrial detainees greater protections than the Eighth
Amendment affords to post-conviction prisoners. Kingsley also suggests that
pretrial detainees need not show that a jail official acted with a subjectively
culpable state of mind—it is enough to show that the official’s actions were
unreasonable. In short, the logic of Kingsley suggests that all conditions
Id. at 2472–74.
See id. at 2475–76.
See Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2015,
PRISON POLICY INITIATIVE (Dec. 8, 2015), http://www.prisonpolicy.org/reports/pie2015.html
[https://perma.cc/2B2V-P2W6].
51. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 106
(1976).
52. Farmer, 511 U.S. at 841–42.
53. See, e.g., Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241 (9th Cir. 2010);
Caiozzo v. Koreman, 581 F.3d 63, 70–71 (2d Cir. 2009); Butera v. Cottey, 285 F.3d 601, 605
(7th Cir. 2002).
48.
49.
50.

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claims brought by jail detainees should be governed by objective standards.
Given the tension between the implications of Kingsley and a substantial
body of court of appeals precedent, there is much for the lower courts to sort
out in the years ahead.
Some have begun to do so. In Castro v. County of Los Angeles, for
example, a pretrial detainee who suffered brain damage in a “sobering cell”
as a result of an assault from another arrestee brought a failure-to-protect
claim against the county and individual defendants. 54 The panel majority,
over a partial concurrence and partial dissent by Judge Graber, 55 ruled that
Kingsley did not affect the standard for failure to protect claims by pretrial
detainees. 56 The court has granted rehearing en banc, 57 and argument was
heard in March. 58
Although Kingsley focuses on the legal distinction between pretrial
detainees and post-conviction prisoners, the opinion also suggests that the
five-Justice majority is skeptical about applying the malicious and sadistic
standard even to prisoners who have already been convicted. “We
acknowledge,” Justice Breyer wrote, “that our view that an objective standard
is appropriate in the context of excessive force claims brought by pretrial
detainees pursuant to the Fourteenth Amendment may raise questions about
the use of a subjective standard in the context of excessive force claims
brought by convicted prisoners.” 59 The Court continued: “We are not
confronted with such a claim, however, so we need not address that issue
today.” 60 This statement may signal that the Court intends to take up the
issue in the near future.
III. SOLITARY CONFINEMENT: A SURPRISING CONCURRENCE
Kingsley and Holt are remarkable decisions—but the greatest prison law
surprise of 2015 came from Justice Kennedy, who authored a concurrence
focused on solitary confinement in Davis v. Ayala. 61 No one could have
predicted this, because the case itself pertained to jury selection and had
virtually nothing to do with solitary confinement.

54. Castro v. County of Los Angeles, 797 F.3d 654, 660–61 (9th Cir. 2015), reh’g granted
en banc, 809 F.3d 536 (9th Cir. 2015).
55. Castro, 797 F.3d at 677.
56. Id. at 665.
57. Castro v. County of Los Angeles, 809 F.3d 536 (9th Cir. 2015).
58. The author is counsel for a group of amici curiae in this litigation.
59. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2476 (2015).
60. Id.
61. See Davis v. Ayala, 135 S. Ct. 2187 (2015).

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Historically, Supreme Court cases on solitary confinement have been
few and far between. In the Gilded Age, the Supreme Court handed down In
re Medley, 62 which condemned solitary confinement, at least as it was
practiced in the eighteenth and nineteenth centuries. The case dealt with a
Colorado man who was sentenced to solitary confinement pending
execution. 63 The sentencing court imposed solitary confinement pursuant to
a statute enacted after the crime occurred—a violation, the Court held, of the
Ex Post Facto Clause. 64 Justice Miller’s opinion did not stop there; he penned
powerful dicta regarding the effects of solitary confinement:
The peculiarities of this system were the complete isolation of the prisoner
from all human society, and his confinement in a cell of considerable size,
so arranged that he had no direct intercourse with or sight of any human
being, and no employment or instruction. . . . A considerable number of the
prisoners fell, after even a short confinement, into a semi-fatuous
condition, from which it was next to impossible to arouse them, and others
became violently insane, others still, committed suicide, while those who
stood the ordeal better were not generally reformed, and in most cases did
not recover sufficient mental activity to be of any subsequent service to the
community. 65

The issue of solitary confinement remained dormant in the Supreme
Court until 2005, when Wilkinson v. Austin was decided. 66 Wilkinson
addressed Ohio’s supermax prison, where prisoners spent twenty-three
hours a day in single cells and the remaining hour in a small indoor exercise
room. 67 The duration of solitary confinement was indefinite, and prisoners
lost their parole eligibility while incarcerated in the supermax. 68 The Court
concluded that prisoners had a liberty interest in avoiding the prison’s harsh
conditions, and could not be sent to the supermax without procedural due
process. 69 The Court held that the prison’s procedures, which included a
hearing, satisfied procedural due process.
While Wilkinson addressed procedural due process, the decision
avoided the question strongly hinted at a century earlier in Medley: Under
what conditions, if any, does solitary confinement violate the Eighth
Amendment? The Court noted that the “harsh” conditions of supermax
62.
63.
64.
65.
66.
67.
68.
69.

In re Medley, 134 U.S. 160 (1890).
Id. at 161–62.
Id. at 172.
Id. at 168.
See Wilkinson v. Austin, 545 U.S. 209 (2005).
Id. at 214.
Id. at 214–15.
Id. at 224.

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confinement “may well be necessary and appropriate in light of the danger
that high-risk inmates pose both to prison officials and to other prisoners,”
but did not directly address the issue. 70
The recent case Davis v. Ayala was an unlikely forum for a justice to
revisit the question of solitary confinement. Ayala dealt with a Batson
challenge to jury selection. The Court held that the error, if any, was
harmless. 71 Justice Kennedy agreed, but he also wrote a concurrence about
solitary confinement. His hook for doing so was an answer to a question at
oral argument, to which a lawyer responded that Ayala had spent the
majority of his twenty-five years of incarceration in solitary confinement. 72
Quoting a wide range of sources—including: The Oxford History of the
Prison, 73 The New Yorker, 74 the American Journal of Public Health, 75 the
Journal of the American Academy of Psychiatry and Law, 76 In re Medley, 77 the
Washington University Journal of Law and Policy, 78 Charles Dickens, 79 and
Fyodor Dostoevsky 80—Justice Kennedy opined that “[y]ears on end of neartotal isolation exact a terrible price.” 81 Suggesting that the Court should take
up the issue of solitary confinement, Justice Kennedy wrote: “In a case that
presented the issue, the judiciary may be required, within its proper
jurisdiction and authority, to determine whether workable alternative
systems for long-term confinement exist, and, if so, whether a correctional
system should be required to adopt them.” 82
Justice Thomas responded in a short concurrence, in which he
dismissed Justice Kennedy’s analysis as bleeding-heart nonsense. 83 Ayala was
a murderer, and “the accommodations in which Ayala is housed are a far
sight more spacious than those in which his victims . . . now rest.” 84

70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.

Id.
Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015).
Id. (Kennedy, J., concurring).
Id. at 2209.
Id. at 2210.
Id.
Id.
Id. at 2209.
Id. at 2210.
Id. at 2209.
Id. at 2210.
Id.
Id.
See id. (Thomas, J., concurring).
Id.

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IV. WHY NOW?
The Supreme Court’s recent decisions will surely have important effects
on the specific types of cases which they govern. The larger question, though,
is whether they auger even more significant changes to come in prison
jurisprudence. It would be premature to predict with any confidence that the
trend is changing, and yet it is noteworthy that a common theme—
skepticism of excessive judicial deference—runs through the three cases.
Holt rejects “unquestioning deference.” 85 Kingsley jettisons the “malicious
and sadistic” standard as overly deferential to jailers and implies that other
standards may also be too lenient. 86
In his Ayala concurrence, Justice Kennedy suggested a theory as to why
courts may now wish to take a harder look at prisons:
Prisoners are shut away—out of sight, out of mind. It seems fair to suggest
that, in decades past, the public may have assumed lawyers and judges were
engaged in a careful assessment of correctional policies, while most lawyers
and judges assumed these matters were for the policymakers and
correctional experts. 87

This passage intimates that there was an implicit contract between courts
and prison officials—courts would stay out of the business of running
prisons, and prison officials themselves would ensure the humane
management of correctional facilities. Justice Kennedy may be suggesting
that the prison authorities have not upheld their end of the deal, and that the
time has come for courts to step in.
Justice Kennedy does not hide the fact that a shift in public perception
brought both the specific problem of solitary confinement and the broader
problem of prison conditions to his attention. Immediately after the passage
excerpted above, he writes: “There are indications of a new and growing
awareness in the broader public of the subject of corrections and of solitary
confinement in particular.” 88 Throughout the concurrence, he cites scholarly
studies and press articles about the effects of solitary confinement. 89
It is possible, Kennedy suggests, to imagine a future in which a shift in
the social and political discourse about prisons would sharpen judicial
scrutiny. In the 1980s and 1990s, the political atmosphere was toxic to any
efforts to reduce incarceration levels; being painted as soft on crime could

85.
86.
87.
88.
89.

Holt v. Hobbs, 135 S. Ct. 853, 864 (2015).
See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472–73, 2476 (2015).
Davis v. Ayala, 135 S. Ct. 2187, 2209–10 (Kennedy, J., concurring).
Id. at 2210.
See id.

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have ended a politician’s career. 90 This was also the era in which an edifice of
deference was built into Supreme Court jurisprudence.
Today, numerous states and the federal government have begun to
reduce sentences, and the goal of ending mass incarceration enjoys broad
bipartisan support. 91 In particular, as Justice Kennedy notes in Ayala,
solitary confinement, an issue virtually unheard of a decade ago, now
receives significant attention: increased discussion in the media, a barrage of
lawsuits, changes in state law and policy, even a Senate hearing on the
subject. 92 In January, President Obama announced a series of restrictions on
the use of solitary confinement in federal prisons, including a ban on the
solitary confinement of juveniles. 93
These, in short, are hopeful times in the world of prisoners’ rights law. It
is possible that little will change. But it is also possible, for the first time in
decades, to envision a future in which new political conditions and greater
judicial scrutiny refashion the law of prison conditions, at least in some
areas. Will the Supreme Court impose limits on solitary confinement? Will it
revisit the “malicious and sadistic” standard in excessive force cases brought
by convicted prisoners? Will it reconsider the highly deferential standard
90. See, e.g., Sara Sun Beale, Still Tough on Crime? Prospects for Restorative Justice in the
United States, 2003 UTAH L. REV. 413, 417–18.
91. See 28 U.S.C. § 994(g), (u) (2012); U.S. SENTENCING COMM’N, POLICY PROFILE
SENSIBLE SENTENCING REFORM: THE 2014 REDUCTION OF DRUG SENTENCES (2014),
http://www.ussc.gov/sites/default/files/pdf/research-andpublications/backgrounders/profile_2014_drug_amendment.pdf
[https://perma.cc/ZA37ZET6]; Ram Subramanian & Ruth Delaney, Playbook for Change? States Reconsider Mandatory
Sentences, 26 FED. SENT’G REP. (February 2014); Carl Hulse & Jennifer Steinhauer, Sentencing
Overhaul Proposed in Senate with Bipartisan Backing, N.Y. TIMES, (Oct. 1, 2015),
http://www.nytimes.com/2015/10/02/us/politics/senate-plan-to-ease-sentencinglaws.html?_r=0 [https://perma.cc/2VYH-VMJD]; Marc Mauer & Nazgol Ghandnoosh, Fewer
Prisoners, Less Crime: A Tale of Three States, THE SENT’G PROJECT (revised July 2014),
http://sentencingproject.org/doc/publications/inc_Fewer_Prisoners_Less_Crime.pdf
[https://perma.cc/3DDK-XPBU].
92. See, e.g., ZACHARY HEIDEN, CHANGE IS POSSIBLE: A CASE STUDY OF SOLITARY
CONFINEMENT
REFORM
IN
MAINE,
ACLU
OF
ME.
(2013),
www.aclumaine.org/sites/default/files/uploads/users/admin/ACLU_solitary_Report_webversi
on.pdf [https://perma.cc/ZV4Q-YQZM]; Ruth Tam, Senate Leaders Consider Solitary
Confinement Reform for Select Prisoners, PBS: NEWSHOUR (Feb. 26, 2014),
http://www.pbs.org/newshour/rundown/senate-leaders-consider-solitary-confinementreform-select-prisoners/ [http://perma.cc/5VSK-Q98W]; Summary of Ashker v. Governor of
California
Settlement
Terms,
CTR.
CONST.
RTS.
(2015),
https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlementsummary.pdf [https://perma.cc/TDP3-XCSF].
93. Juliet Eilperin, Obama Bans Solitary Confinement for Juveniles in Federal Prisons,
WASH. POST (January 26, 2016), https://www.washingtonpost.com/politics/obama-banssolitary-confinement-for-juveniles-in-federal-prisons/2016/01/25/056e14b2-c3a2-11e5-9693933a4d31bcc8_story.html [https://perma.cc/9PVR-NNJC].

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that currently governs prisoners’ free speech claims? 94 “Come, my friends,”
Tennyson’s Ulysses exhorts the mariners, “ ‘Tis not too late to seek a newer
world. . . . To strive, to seek, to find, and not to yield.” 95

94. See David Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84
GEO. WASH. L. REV. (forthcoming 2016).
95. ALFRED LORD TENNYSON, Ulysses, in SELECTED POEMS 50 (Christopher Ricks ed.,
Penguin Books 2007).