by Jane M. Mahan*
The Eighth Amendment prohibits cruel and unusual punishments. But proving an Eighth Amendment violation based on dangerous or unfit prison conditions is difficult because it requires a showing of subjective culpability on the part of prison officials. Federal courts have grown increasingly aware of the harmful nature of solitary confinement, particularly for juveniles, the mentally ill, and inmates with special medical needs. In this Contribution, Jane M. Mahan (’22) argues that the placement of vulnerable inmates in solitary confinement for a period exceeding fifteen consecutive days should be per se unconstitutional under the Eighth Amendment.
A growing body of research has exposed the devastating harms of solitary confinement on inmates’ physical and mental health.1 Solitary confinement is known to cause or worsen mental illness, and increases the likelihood of suicide or premature death.2 In recent years, a state-level reform movement against solitary confinement has gained traction. Many state legislatures are limiting its use by restricting the duration of solitary confinement or banning it altogether for vulnerable inmates, typically defined as those who are under 21 years old, over 65 years old, or suffer from mental or physical illness.3 Solitary confinement faces international opprobrium as well. The United Nation’s Special Rapporteur on Torture has called for a global ban of the practice for any period exceeding fifteen days, after which time “some of the harmful psychological effects of isolation can become irreversible.”4 For periods shorter than fifteen days, the appropriateness of using solitary confinement should be assessed according to the individual inmate’s particular vulnerabilities.5 The Special Rapporteur has specifically cautioned against the use of solitary confinement for juvenile and mentally ill inmates.6 Despite this expanding consensus about the horrors of solitary confinement, it was estimated that between 55,000 and 62,500 inmates were held in isolation in American prisons in the summer of 2019.7
The legal standard for an Eighth Amendment violation is tethered to social norms and its protections may wax and wane over time.8 For example, in Penry v. Lynaugh, the Supreme Court held that the imposition of capital punishment on individuals with intellectual disabilities did not categorically violate the Eighth Amendment.9 But the Court overruled Penry thirteen years later in Atkins v. Virginia, finding that social norms had evolved such that death sentences for the intellectually disabled were categorically unconstitutional.10
This contribution argues that solitary confinement is cruel and usual punishment in violation of the Eighth Amendment when: (1) it is inflicted on a person particularly vulnerable to that confinement, (2) for a period in excess of fifteen days, and (3) is not necessary to protect that person from intentional physical harm inflicted by others or themselves.
Prison conditions, like solitary confinement, are subject to the Eighth Amendment’s prohibition of cruel and unusual punishment.11 Though solitary confinement is not per se cruel and unusual,12 its harsh nature and severe effects have been recognized by the Supreme Court for over a century.13 More recently, federal district and circuit courts have relied on evidence of scientific consensus about the harms of solitary confinement in their analysis of prison-conditions cases.14
The Supreme Court uses a two-part test to determine whether prison conditions are cruel and unusual under the Eighth Amendment.15 The first requirement is “objective,” and is met by a showing that prison conditions cause a deprivation or risk of harm that is sufficiently serious and “violates contemporary standards of decency.”16 The second requirement is subjective, and is satisfied by a showing that prison officials were deliberately indifferent to the prisoner’s health and safety needs.17
The objective prong is met when conditions result in the denial of the “minimal civilized measure of life’s necessities,” and “violate contemporary standards of decency.”18 Conditions can meet this threshold alone or in combination “when they have a mutually enforcing effect that produces the deprivation of a single identifiable human need such as food, warmth, or exercise.”19
Beyond a showing of harm or deprivation that is sufficiently serious, the objective prong also “requires the court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency . . . .”20 Yet it is difficult to determine what those “standards of decency” are. Courts have consulted a variety of sources, including legislative reform, and professional and social consensus.21 The Supreme Court has indicated that even exposure to an unreasonable risk of harm from tobacco smoke may be sufficient to satisfy this requirement.22
The subjective prong requires a showing of subjective culpability on the part of prison officials.23 In prison-conditions cases, the plaintiff must show that the defendant was “deliberately indifferent.”24 The court has defined “deliberate indifference” to mean that an official both knew about and disregarded a substantial risk to prisoner health or safety.25
An official is deemed to have known about the substantial risk when they were “both aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . also dr[ew] the inference.”26 Whether the official had the required knowledge of a substantial risk is a question of fact that can be supported by circumstantial evidence and may be inferred from the fact that the risk was obvious.27
In Porter v. Pennsylvania Department of Corrections, the Third Circuit found that the severe risks inherent in extended stays in solitary confinement for the mentally ill was obvious to prison officials, and inferred knowledge as a result.28 In particular, the court pointed to research and judicial opinions discussing these harms, as well as corrections officials’ acknowledgement of such harms in policies and advisories published by the national corrections organizations.29
After demonstrating an official’s knowledge of a substantial risk, a plaintiff must still show that the official disregarded that risk. A prison official is only said to disregard a serious risk when he or she fails to “take reasonable measures to abate [that risk].”30
For example, in Heyer v. U.S. Bureau of Prisons, a deaf inmate brought at Eighth Amendment claim alleging that prison officials disregarded a risk to his safety by failing to provide a sign-language interpreter during medical and psychiatric evaluations.31 The Fourth Circuit reversed a grant of summary judgment for the prison officials, finding sufficient evidence that (1) the prison knew about Heyer’s particular needs, because they had provided him with a hearing inmate companion help navigate prison life; and (2) disregarded his medical needs by failing to make adequate accommodations to meet them, i.e. by failing to hire an interpreter.32
The Court has indicated a willingness to defer to prison officials in determining what “reasonable measures” are in a given case.33 Nonetheless, it stated that “[t]here is no reason of comity, judicial restraint, or recognition of expertise for courts to defer to negligent omissions of officials who lack the resources or motivation to operate prisons within limits of decency.”34
While solitary confinement can have harmful effects on any inmate, those effects are exacerbated for juveniles, and for inmates who are older, chronically ill, or mentally ill.35 For these vulnerable inmates, solitary confinement poses a risk of harm that is serious enough to satisfy the objective requirement for an Eighth Amendment violation.
The Court has indicated that the risk of harm need not be extraordinary or particularly shocking to meet the objective standard. For example, the Court held that exposure to tobacco smoke would suffice, so long as the exposure was objectively unreasonable, and was likely to cause damage to the inmate’s future health.36
Inmates in solitary confinement are often deprived of outdoor exercise, one of the basic human needs safeguarded by the Eighth Amendment.37 The Ninth Circuit found that the denial of outdoor recreation for inmates who are held in solitary for extended periods is cruel and unusual in and of itself.38 Solitary confinement further threatens physical health by way of increased levels of stress, anxiety, and depression.39 These effects are particularly dangerous for older inmates or inmates with chronic heart conditions or diabetes, which are usually managed with regular physical activity and are aggravated by heightened levels of stress and anxiety.40
The psychological toll is worse still for inmates already struggling with their mental health. Placement in solitary confinement can exacerbate existing mental illness and lead to increased rates of suicide and self-harm, even after release.41 The Third Circuit found an Eighth Amendment violation where a mentally ill inmate killed himself after he was repeatedly placed in solitary confinement.42 The court noted that isolation exacerbated his existing mental illness, leading to his suicide.43
The potential harms of solitary become certain when confinement exceeds fifteen days; “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.”44
Thus, inmates who are particularly vulnerable to these harms, face a substantial risk of harm to their immediate and future health from any stay in solitary confinement that exceeds fifteen days. This risk of harm is sufficient to meet the objective standard defined by the Court in Farmer v. Brennan.
Because of its devastating effects, the use of solitary confinement for vulnerable inmates violates contemporary standards of decency. Courts have increasingly recognized the harmful effects of solitary confinement.45 Take, for example, this missive from a recent Third Circuit opinion:
[A]ll [individuals subjected to solitary confinement] will . . . experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli. Anxiety and panic are common side effects. Depression, post-traumatic stress disorder, psychosis, hallucinations, paranoia, claustrophobia, and suicidal ideation are . . . frequent results.46
In light of the growing professional and judicial consensus about the dangerous effects of solitary confinement, many jurisdictions are restricting its use. In 2019 alone, twelve states passed legislation that modified their use of solitary confinement.47 In New Jersey, for example, lawmakers declared that it was abusive and contrary to the rehabilitative goals of the state to hold prisoners in solitary confinement for longer than 20 consecutive days or longer than 30 days in a 60-day period.48 The New Jersey law also prohibits use of solitary confinement for vulnerable populations.49
The increased awareness and recognition of these severe effects on vulnerable inmates in federal courts and in state legislatures, and the resulting changes in policy, indicate that the American standards of decency are evolving such that it is no longer socially acceptable to hold those individuals in solitary confinement in excess of fifteen days.
The use of solitary confinement for vulnerable individuals for longer than fifteen days also satisfies the subjective standard in the majority of cases because prison officials know about both the risks involved in solitary confinement and the medical vulnerabilities of the inmates under their supervision. Many federal courts consider the harms of isolation to be obvious to prison officials and infer knowledge as a result.50 The Third Circuit has even noted that these harms are most obvious to prison officials because they witness the effects of solitary confinement first-hand each and every day.51
The Supreme Court has established a duty for officials to respond to inmates’ medical needs because the Court recognizes that prisoners are at the mercy of prison officials when it comes to their health.52 Thus, when faced with a known risk of serious harm to an inmate, prison officials must take reasonable action to abate that risk or be held constitutionally liable.53
Keeping vulnerable inmates in solitary confinement for more than fifteen days is almost always unreasonable. The longer these individuals are in solitary confinement, the greater the risks to their health.54 Because officials are aware of these obvious risks, they must take some reasonable action to either reduce the risk of harm to the inmate from solitary confinement, or remove the inmate from solitary confinement to comply with the Eighth Amendment.
Solitary confinement of vulnerable individuals may not always be unreasonable. For example, if the inmate poses immediate physical harm to others or to themselves if removed from solitary, the isolation may be reasonable.55 Similarly, it may be reasonable to isolate an individual who is themselves threatened with physical harm from other inmates. But even then, the risks to which that inmate is exposed are severe and may require some alternative action on the part of prison officials to lessen those risks, such as increased recreation time outside of the cell.56
The harms of solitary confinement on vulnerable inmates are severe and well-documented. These harms are sufficiently serious to satisfy the objective requirement for an Eighth Amendment violation. Placing such individuals in solitary confinement for more than fifteen days is no longer compatible with contemporary standards of decency.
Prison officials are aware of the increased risk of harm for vulnerable inmates in solitary and accordingly have a duty to release them from isolation. A failure to do so constitutes deliberate indifference to those risks and should be held liable under the Eighth Amendment.
* Jane M. Mahan is a J.D. Candidate (2022) at New York University School of Law. This piece is a commentary on a problem produced for the 2021 Bryant-Moore Civil Rights Law Moot Court Competition, hosted by Howard University School of Law. The question presented was whether the indefinite placement of a 65-year-old inmate with preexisting health conditions in solitary confinement to protect him from Covid-19 transmission was cruel and unusual punishment under the Eighth Amendment. The views expressed in this contribution do not necessarily represent the views of the author. The article is a distillation of one side of the argument assigned to the team.
1. See Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 566–68 (3d Cir. 2017) (noting the increasing scientific consensus that solitary confinement is both psychologically damaging and physically harmful).
2. S. Poverty L. Ctr., Solitary Confinement: Inhumane, Ineffective, and Wasteful 9 (2019).
3. Corr. Leaders Ass’n & The Liman Ctr. For Pub. Int. L., Time-in-Cell 2019: A Snapshot of Restrictive Housing 63–66 (Sept. 2020).
4. Juan E. Méndez (Special Rapporteur of the Human Rights Council), Interim Rep. on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 9, U.N. Doc. A/66/268 (Aug. 5, 2011) (quoting Craig Haney, Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, 49 Crime & Delinq. 124, 140–41).
5. Id. at 20.
6. See id. at 18-19 (categorizing juveniles and persons with disabilities—particularly with mental illness—as “vulnerable” inmates in the solitary confinement context).
7. Corr. Leaders Ass’n, supra note 3, at 7.
8. See, e.g., Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).
9. 492 U.S. 302, 335 (1989) (“[T]here is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment.”).
10. 536 U.S. 304, 316 (2002) (“The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.”).
11. Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It 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.”).
12. Punishments that are considered per se cruel and unusual include capital punishment for the intellectually disabled, Atkins v. Virginia, 536 U.S. 304, 321 (2002), and status crimes, such as punishment of drug addiction, e.g., Robinson v. California, 370 U.S. 660, 667 (1962) (holding that the criminalization of drug addiction violated the Eighth Amendment).
13. See In re Medley, 134 U.S. 160, 168 (1890) (“A considerable number of the prisoners fell, after even a short [time in total solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide; while those who stood the ordeal better . . . in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”).
14. See, e.g., Glossip v. Gross, 576 U.S. 863, 926 (2015) (Breyer, J., dissenting) (“[I]t is well documented that such prolonged solitary confinement produces numerous deleterious harms.”); Porter v. Clark, 923 F.3d 348, 356 (4th Cir. 2019) (“In recent years, advances in our understanding of psychology and new empirical methods have allowed researchers to characterize and quantify the nature and severity of the adverse psychological effects attributable to prolonged placement of inmates in isolated conditions . . . .”); Schoatz v. Wetzel, No. 2:13-cv-0657, 2014 U.S. Dist. LEXIS 9386 at *11–12 (W.D. Pa. Jan. 27, 2014) (finding that plaintiff plausibly established an Eighth Amendment claim with evidence of the harmful effects of solitary confinement).
15. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (explaining that a prison official violates the Eighth Amendment only when 1) the alleged deprivation is “objectively, sufficiently serious” and 2) the official’s conduct results in “denial of the minimal civilized measure of life’s necessities”) (internal citations and quotation marks omitted).
16. Helling v. McKinney, 509 U.S. 25, 35–36 (1993).
17. See Wilson v. Seiter, 501 U.S. 294, 297, 302–03 (1991).
18. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
19. Wilson, 501 U.S. at 304.
20. Helling, 509 U.S. at 36.
21. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976) (relying on modern legislative action); Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (relying on views of professional organizations and community leaders, as well as legal shifts in other countries); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (relying on a trend of reform in state legislatures, professional and social consensus, and international norms); see also Helling, 509 U.S. at 36 (requiring a showing that challenged conditions pose a risk that contemporary society would not tolerate for any of its members).
22. See Helling, 509 U.S. at 35 (finding a plausible Eighth Amendment claim based on an unreasonable risk of damage to an inmate’s future health from involuntary exposure to environmental tobacco smoke).
23. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
24. Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
25. Id. at 837.
27. Id. at 842.
28. 974 F.3d 431, 445–46 (3d Cir. 2020).
29. Id. at 446 (“[A] wide range of researchers and courts have repeatedly described the serious risks associated with solitary confinement . . . [and] Defendant Wetzel is the president of the Association of State Correctional Administrators (“ASCA”), which has published reports about efforts to limit solitary confinement.”).
30. Farmer, 511 U.S. at 847.
31. 849 F.3d 202, 209 (4th Cir. 2017)
32. Id. at 211–12 (“[A] factfinder could reasonably conclude that BOP was deliberately indifferent, as it knew that its failure to provide ASL interpreters during Heyer’s medical interactions created a substantial risk of serious harm to his health.”).
33. Cf. Helling v. McKinney, 509 U.S. 25, 37 (1993) (“The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration.”); see also Turner v. Safley, 482 U.S. 78, 85 (1987) (“Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”); Lewis v. Casey, 518 U.S. 343, 361 (1996) (noting that the “principle of deference has special force” in cases about inmates in “lockdown”).
34. Rhodes v. Chapman, 452 U.S. 337, 362 (1981).
35. Méndez, supra note 4, at 18–19 (discussing populations that are vulnerable to solitary confinement, including juveniles and the disabled).
36. Helling, 509 U.S. at 36.
37. See Wilson v. Seiter, 501 U.S. 294, 304 (1991) (listing exercise as “a single identifiable human need” of which prisoners cannot be constitutionally deprived); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (“There is substantial agreement among cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well-being of the inmates.”) (citations omitted); Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir. 1984) (finding a plausible Eighth Amendment claim where inmates were denied outdoor exercise while held in administrative segregation).
38. Spain, 600 F.2d at 199 (finding that the denial of outdoor exercise for a period of years was cruel and unusual punishment where inmates were confined to cells almost twenty-four hours a day, had minimal contact with others, and had no access to training or rehabilitation programs).
39. Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring) (noting that confinement causes “anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors”).
40. See What Are the Effects of Solitary Confinement on Health?, Med. News Today (Aug. 6, 2020), https://www.medicalnewstoday.com/articles/solitary-confinement-effects; High Blood Pressure (Hypertension), Mayo Clinic (Jan. 16, 2021), https://www.mayoclinic.org/diseases-conditions/high-blood-pressure/symptoms-causes/syc-20373410 (listing physical inactivity and unrelieved stress as risk factors for heart disease); Heart Disease, Mayo Clinic (Feb. 9, 2021), https://www.mayoclinic.org/diseases-conditions/heart-disease/symptoms-causes/syc-20353118 (listing physical inactivity and unrelieved stress as risk factors for heart disease); Diabetes, Mayo Clinic (Oct. 30, 2020), https://www.mayoclinic.org/diseases-conditions/diabetes/symptoms-causes/syc-20371444 (noting that physical activity and stress management are key to the management of diabetes).
41. See Palakovic v. Wetzel, 854 F.3d 209, 226, 232 (3d Cir. 2017) (noting the link between solitary confinement and self-harm and suicide for mentally ill inmates); Lauren Brinkley-Rubenstein et al., Association of Restrictive Housing During Incarceration with Mortality After Release, JAMA Network Open, (Oct. 4, 2019), at 6 https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2752350 (finding that inmates who spend time in restrictive housing were more likely to die in the first year after release, especially from suicide, homicide, or overdose).
42. Palakovic, 854 F.3d at 232 (“[D]espite knowing of [the inmate’s] vulnerability and the increased risk of suicide that solitary confinement brings, the defendants disregarded that risk and permitted [him] to be repeatedly isolated in solitary confinement anyway.”).
43. Id. (noting that the risks of self-harm and suicide to which he was vulnerable were exacerbated in isolation).
44. Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019) (quoting Craig Haney, Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, 49 Crime & Delinq. 124, 132 (2003)).
45. See cases cited supra note 15 (demonstrating the increasing recognition of solitary confinement’s harms in the federal judiciary); Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 574 (3d Cir. 2017) (“In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus.”); Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring) (recognizing that “near-total isolation exact[s] a terrible price”).
46. Williams, 848 F.3d at 566 (internal citations and quotation marks omitted).
47. Amy Fettig, 2019 Was a Watershed Year in the Movement to Stop Solitary Confinement, ACLU (Dec. 16, 2019), https://www.aclu.org/news/prisoners-rights/2019-was-a-watershed-year-in-the-movement-to-stop-solitary-confinement.
48. N.J. Stat. Ann. § 30:4-82.8(a)(9) (West 2021).
49. Id. § 30:4-82.7 (defining “vulnerable populations” to include: inmates below age 21 or above age 65; the mentally ill; the developmentally disabled; those with a serious medical condition; pregnant women; inmates with significant auditory or visual impairment; and LGBTQ inmates).
50. Cf. Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 574 (3d Cir. 2017) (“[T]hat prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike the court as rocket science.” (quoting McClary v. Kelly, 4. F. Supp. 2d 195, 208 (W.D.N.Y Apr. 30, 1998) (internal quotation marks omitted))); Palakovic v. Wetzel, 854 F.3d 209, 226 (3d Cir. 2017) (referring to the “increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.”).
51. Palakovic, 854 F.3d at 232.
52. Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”).
53. Farmer v. Brennan, 511 U.S. 825, 844 (1994) (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”).
54. Méndez, supra note 4, at 17 (“[T]he health risks rise with each additional day spent in such conditions.”).
55. Id. at 10 (noting that solitary confinement may be necessary in “exceptional circumstances,” such as when the safety of others is involved).
56. Id. at 19 (stating that when isolation is necessary for safety reasons, inmates should have access to “recreation, reading materials, legal counsel or medical doctors”).