Contributions

Evolving Standards of Decency: Solitary Confinement and the Eighth Amendment

by Jane M. Mahan*                 

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.

26. Id.

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”).