On March 3, 2015, at the conclusion of oral argument in the U.S. Supreme Court case of Davis v. Ayala, No. 13-1428 (U.S. Jun 18, 2015), Justice Anthony Kennedy asked Hector Ayala’s lawyer, Anthony Dain, a question that the justice acknowledged “doesn’t relate to the issues you’ve been arguing”:
This crime was what, 30 years ago, and the trial, 26 years ago?
Anthony J. Dain: 1996, yeah, very close.
Justice Anthony Kennedy: Has he [Hector Ayala] spent time in solitary confinement, and, if so, how much?
Anthony J. Dain: He has spent his entire time in what’s called administrative segregation. When I visit him, I visit him through glass and wire bars.
Justice Anthony Kennedy: Is that a single cell?
Anthony J. Dain: It is a single cell. They’re all single cells. Well, San Quentin is on the most — it’s on Heaven’s land in Marin County.
It’s a 150-year-old prison and their administrative segregation is single cells, a very old system, very small, and — and —
Justice Anthony Kennedy: Is it the same thing as solitary confinement?
Anthony J. Dain: No, it’s 23 hours out of the day, that probably is the same. They generally — administrative segregation you’re not allowed in the general yard anymore. But you are allowed an hour a day —
Justice Anthony Kennedy: One hour.
Anthony J. Dain: — of activity.
The colloquy was striking, as it came at the end of forty-five minutes of argument on the rather dry, technical question of how habeas courts should assess harmless error in a procedural Batson challenge.
Yet, three weeks later it became clear that Kennedy’s mind was still occupied by the decades-long solitary confinement of Hector Ayala, who in 1989 was convicted of triple homicide and sentenced to death. At the March 23rd U.S. House Appropriations Subcommittee hearing on the Supreme Court’s 2016 budget request, Kennedy offered the following reflections after Rep. Steve Womack (R-Arkansas) referenced the crisis in local jail and prison overcrowding due to U.S. policies of mass incarceration:
I think, Mr. Chairman, that the correction system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. Doctors know more about the correction system and psychiatrists than we do. Nobody looks at it.
California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. Compare the amount they gave to school children, it was about $3500 a year. Now, this is 24-hour care and so this is apples and oranges in a way, [but] this idea of total incarceration just isn’t working, and it’s not humane.
The federal government built–what do they call them?–Supermax prisons with isolation cells…We had a case come before our court a few weeks ago. The prisoner had been in an isolation cell (according to the attorney–I haven’t checked it out) for twenty-five years. Solitary confinement literally drives men mad. Even Dr. Manette [a character in Charles Dickens’ A Tale of Two Cities imprisoned for eighteen years in isolation] had his cobbler’s tools, and he lost his mind!
We have to simply look at the system we have. The Europeans have systems for difficult, recalcitrant prisoners in which they have them in a group of three or four, and they can stay together and have human contact, and it seems to work. It seems to work much better.
A Judicial Call to Action
Given this background, it was hardly surprising that when the Court issued its opinion in Davis v. Ayala on June 18th, Kennedy had drafted a four-page concurrence focused solely on the practice of solitary confinement, “one factual circumstance” that he again admitted had “no direct bearing on the precise legal questions presented by this case.”
Describing the practice as one in which the inmate is held “in a windowless cell no larger than a typical parking spot for 23 hours a day,” Kennedy cited the 25,000 U.S. prisoners currently serving their sentences in “whole or substantial part in solitary confinement, many regardless of their conduct in prison.” He acknowledged the “human toll wrought by extended terms of isolation,” which writers have vividly documented since the eighteenth century, and he again referenced Dickens’ Dr. Manette, who despite his workbench and tools to make shoes, was left in “a mindless state with almost no awareness or appreciation for time or his surroundings” years after his release from isolation. Dickens, in fact, visited one of the first modern penitentiaries in the U.S., Eastern State in Pennsylvania, which used solitary confinement as a penal measure to “rehabilitate” criminals and served as a model of social isolation for more than three hundred prisons from across the globe. Dickens himself condemned the practice in 1842:
I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers…and which no man has a right to inflict on his fellow-creature.
In his concurrence, Kennedy quoted from In re Medley, the 1890 Supreme Court case that first subjected the practice of solitary confinement to constitutional scrutiny. In Medley, the Court struck down a Colorado statute requiring inmates sentenced to death to be held in solitary for one month prior to their execution, relying on graphic accounts of the harmful impact of isolation in nineteenth century prisons. Although the Court premised the holding on the Ex Post Facto Clause and not the Eighth Amendment prohibition of cruel and unusual punishment, the decision is noteworthy for holding that one month of solitary confinement is substantial enough to justify the Ex Post Facto Clause’s application.
Since Medley, state and federal courts have heard many cases involving Eighth Amendment challenges to solitary confinement, but none has held that the practice is a per se Eighth Amendment violation. Traditionally, evaluations of Eighth Amendment violations in the context of conditions of confinement have focused on whether prisoners have been denied the basic physical necessities of human existence: food, shelter, and medical care. In recent decades, with the advent of Supermax prisons and the prevalence of solitary confinement, courts have begun to recognize that institutionally imposed psychological pain and suffering can also violate the Eighth Amendment. As a result, they have found that specific solitary confinement regimes coupled with either particularly harsh conditions, such as sensory deprivation, or a vulnerable class of inmates, such as those who are mentally ill and/or juveniles, can rise to the level of cruel and unusual punishment. But courts have continued to reject Eighth Amendment claims based on solitary confinement without additional evidence of either “deliberate indifference” by prison administrators or egregious conditions or treatment.
The motivation for Kennedy’s concurrence seems not merely to chronicle the profound harm of prolonged isolation or recount the relevant case law, but to issue a call to action. He faults the legal academy as well as practitioners and policymakers for their superficial understanding of and indifference to the reality of this extreme sentencing practice. Because the powers-that-be choose to ignore “the question of what comes next” after a defendant is convicted and sentenced and instead defer to correctional administrators, “[p]risoners are shut away–out of sight, out of mind.”
Kennedy includes topical references in the concurrence, somewhat rare for Supreme Court jurisprudence. He cites a tragic case that is ripped from the headlines, that of Kalief Browder, a teenager who spent three years in solitary confinement at Rikers Island Jail without a trial for allegedly stealing a backpack and who committed suicide earlier this month. Kennedy also cites to the recent work of criminologists and psychologists, who have found correlations between solitary confinement and self-harm among inmates as well as solitary confinement and rates of mental illness in U.S. prisons. And he explicitly warns that if the practice of isolation is not soon addressed by others,
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.
Protecting the Autonomy of Self
Although some court-watchers suggest that Justice Kennedy is a legal pragmatist who has an idiosyncratic approach to judicial decision-making, the philosophical underpinnings of his concurrence in Davis v. Ayala can be found in the testimony he gave during his Supreme Court nomination hearings in 1987. When asked what standards a judge should follow in determining whether government action has violated an individual’s right to human dignity, Kennedy explained that he considers whether the action results in
the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, [or] the inability of a person to reach his or her own potential.
Echoes of this sentiment are found in his subsequent opinions explicating his substantive due process views (see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”); Lawrence v. Texas, 539 U.S. 558 (2003)(“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”)); his notion of the independent role of judges (see Roper v. Simmons, 543 U.S. 551 (2005)(“We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”)); and in his belief in the potential for young offenders to be redeemed (see Roper at 563-64 (“When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”)).
Kennedy’s concurrence in Davis v. Ayala is consistent with these previously-expressed views. He is unwilling to accept a criminal justice system in which sentencing judges are powerless to prevent capital defendants from spending decades in “a solitary confinement regime that will bring [them] to the edge of madness, perhaps to madness itself.” And he is determined that if the status quo does not change, the bench, bar, legal academy, and broader public must at the very least be aware of and ready to take responsibility for the result:
Even if the law were to condone or permit this added punishment [of prolonged solitary confinement for capital defendants], so stark an outcome ought not to be the result of society’s simple unawareness or indifference.
Kennedy concludes with a more overarching judgment about the widespread use of solitary confinement in today’s prisons and how it reflects upon the state of our society:
Over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons.’ There is truth to this in our own time.
What Happens from Here
It is clearly too soon to know what impact, if any, a Supreme Court concurrence that is tangential to the case’s legal issues will have. Kennedy’s timing, however, is certainly in step with reform efforts, as solitary confinement has faced unprecedented challenges in recent years. In 2014, for instance, ten states adopted measures curtailing the use of solitary, either by abolishing it for juveniles or the mentally ill; improving conditions in segregated units; or gradually easing isolated inmates back into the general population. Relevant to Davis v. Ayala, at least one state has discontinued its use on death row, catalyzed by the acknowledgement of correctional officers that inmates are harder to manage and present a greater risk when they are stripped of all their privileges.
As for the views of the other Justices on the Court, Clarence Thomas issued his own concurrence in Davis for the sole purpose of rejecting Kennedy’s critique and reminding him that Hector Ayala’s accommodations “are a far sight more spacious than those in which his victims now rest” and that Ayala will soon have had “as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”
Even so, as the Justice who most consistently holds the Court’s swing vote, it seems inevitable that it is Kennedy’s vision and philosophy that will remain a critical–if not dominant–factor in determining whether solitary confinement will survive constitutional scrutiny.
This was originally posted at Casetext.