by Julia Leff*

The Due Process Clause of the Four­teenth Amend­ment requires the gov­ern­ment to meet cer­tain pro­ce­dur­al safe­guards before revok­ing an individual’s lib­er­ty. But for incar­cer­at­ed indi­vid­u­als in our country’s prison sys­tem, incar­cer­a­tion, by its very terms, lim­its the many priv­i­leges and free­doms one would oth­er­wise nor­mal­ly have. When plac­ing an incar­cer­at­ed indi­vid­ual in soli­tary con­fine­ment, osten­si­bly for their own med­ical pro­tec­tion, must the gov­ern­ment pro­vide pro­ce­dur­al due process for that individual?

The answer to this ques­tion requires bal­anc­ing two com­pet­ing inter­ests: the incar­cer­at­ed individual’s inter­est in his lib­er­ty and the government’s inter­est in the effi­cient main­te­nance of the prison sys­tem. Under the cur­rent doc­tri­nal frame­work, an incar­cer­at­ed indi­vid­ual must show that his soli­tary con­fine­ment is extreme com­pared to the norm. This is known as the Sandin test. Giv­en the Unit­ed States’ bru­tal and fre­quent use of soli­tary con­fine­ment, show­ing an egre­gious exam­ple of iso­la­tion is dif­fi­cult.1 Ulti­mate­ly, the unique and pro­longed nature of the COVID-19 pan­dem­ic pro­vides the most promis­ing avenue for an incar­cer­at­ed indi­vid­ual to receive pro­ce­dur­al protections.

Dur­ing the COVID-19 pan­dem­ic, experts rec­om­mend­ed that indi­vid­u­als main­tain social dis­tanc­ing and, at times, quar­an­tine to pre­vent the spread of the dead­ly virus.2 Among the many mea­sures imple­ment­ed by jails and pris­ons to pre­vent the virus, plac­ing indi­vid­u­als in soli­tary con­fine­ment for their own med­ical pro­tec­tion became rou­tine.3 By one esti­ma­tion, before the pan­dem­ic, rough­ly 60,000 incar­cer­at­ed indi­vid­u­als were in soli­tary con­fine­ment. Since the pan­dem­ic began, that num­ber has explod­ed to approx­i­mate­ly 300,000.4

In the prison set­ting, the Four­teenth Amendment’s pro­ce­dur­al pro­tec­tions attach only when a pris­on­er has a cog­niz­able lib­er­ty inter­est.5 In Sandin v. Con­ner, the Court explained that there exists a state-cre­at­ed lib­er­ty inter­est when soli­tary con­fine­ment “impos­es atyp­i­cal and sig­nif­i­cant hard­ship on the inmate in rela­tion to the ordi­nary inci­dents of prison life.”6 In Sandin, DeMont Con­ner was serv­ing thir­ty years to life in a max­i­mum-secu­ri­ty prison when he harassed an offi­cer dur­ing a strip search.7 After a hear­ing, a com­mit­tee sen­tenced Con­ner to thir­ty days in dis­ci­pli­nary seg­re­ga­tion.8 The Court did not find a lib­er­ty inter­est because his hard­ship was nei­ther atyp­i­cal nor sig­nif­i­cant when com­pared to ordi­nary prison life.9 Conner’s seg­re­ga­tion “mir­rored” the con­di­tions of oth­er pris­on­ers in seg­re­ga­tion.10 Addi­tion­al­ly, the gen­er­al pop­u­la­tion of this par­tic­u­lar insti­tu­tion often endured “sig­nif­i­cant amounts of ‘lock­down time’” dur­ing which each inmate was iso­lat­ed.11 There­fore, Conner’s thir­ty-day seg­re­ga­tion did not present a “major dis­rup­tion [to] his envi­ron­ment.”12

After Sandin, low­er courts strug­gled to apply the test con­sis­tent­ly, with dif­fer­ent juris­dic­tions using dif­fer­ent base­lines to assess what an “ordi­nary inci­dent[] of prison life” entails.13 In Wilkin­son v. Austin, the Court declined to elu­ci­date the cor­rect stan­dard. Rather, the Court held that the peti­tion­ing class of incar­cer­at­ed indi­vid­u­als held a valid lib­er­ty inter­est “under any plau­si­ble base­line.”14 The incar­cer­at­ed indi­vid­u­als in Wilkin­son had been placed in a so-called “Super­max” facil­i­ty after being clas­si­fied as secu­ri­ty risks.15 The facil­i­ty was “syn­ony­mous with extreme iso­la­tion” and the length of time spent in the facil­i­ty was lim­it­ed only by the incar­cer­at­ed per­sons’ sen­tences.16 The Court empha­sized three fac­tors in com­ing to the con­clu­sion that these incar­cer­at­ed indi­vid­u­als had a lib­er­ty inter­est in avoid­ing such con­fine­ment. First, the con­di­tions of their soli­tary con­fine­ment were “severe.”17 Sec­ond, the dura­tion of the con­fine­ment was “indef­i­nite.”18 Final­ly, the seg­re­ga­tion dis­qual­i­fied the incar­cer­at­ed indi­vid­u­als from parole con­sid­er­a­tion.19 Because these three con­di­tions were present at the Super­max facil­i­ty, the Court found that incar­cer­at­ed indi­vid­u­als held a lib­er­ty inter­est in avoid­ing the prison’s severe and indef­i­nite seg­re­ga­tion.20

Giv­en the stan­dard set out in Sandin and expli­cat­ed in Wilkin­son, courts now con­sid­er (1) the con­di­tions of the soli­tary con­fine­ment and (2) its dura­tion to deter­mine if the con­fine­ment at issue presents an atyp­i­cal and sig­nif­i­cant hard­ship giv­ing rise to a lib­er­ty inter­est.21 While courts across the coun­try con­sid­er sim­i­lar fac­tors in their deter­mi­na­tions, these fac­tors are com­pared to dis­parate base­lines. The Fourth and Ninth Cir­cuits use the gen­er­al prison pop­u­la­tion as the com­par­a­tive base­line.22 The Sec­ond Cir­cuit looks at the typ­i­cal con­di­tions of admin­is­tra­tive seg­re­ga­tion.23 The Sev­enth Cir­cuit com­pares the soli­tary con­fine­ment to seg­re­ga­tion in the state’s most “restric­tive” prison.24 At least one cir­cuit has not iden­ti­fied a com­par­a­tive base­line.25

Courts use a fact-spe­cif­ic inquiry to deter­mine how extreme the con­di­tions of the soli­tary con­fine­ment at issue are.26 The analy­sis may include how iso­lat­ed the incar­cer­at­ed indi­vid­ual is, the size of his cell, how often he is allowed out of his cell, the qual­i­ty of his food and hygiene, whether strip search­es are required, and which priv­i­leges are revoked dur­ing his stay.27 For this inquiry, courts seek to sep­a­rate out “aver­age” stints in soli­tary con­fine­ment (where a lib­er­ty inter­est is not cre­at­ed) from atyp­i­cal or egre­gious cases.

Using this lens, too few courts acknowl­edge the irrefutable men­tal and phys­i­cal harm that any soli­tary con­fine­ment, no mat­ter how extreme, inflicts on an incar­cer­at­ed indi­vid­ual. In oth­er con­texts, a grow­ing num­ber of judi­cial opin­ions rec­og­nize and decry the destruc­tive men­tal and phys­i­cal out­comes of such iso­la­tion.28 Jus­tice Antho­ny Kennedy cit­ed research in his con­cur­ring opin­ion in Davis v. Ayala which shows that soli­tary con­fine­ment caus­es “anx­i­ety, pan­ic, with­draw­al, hal­lu­ci­na­tions, self-muti­la­tion, and sui­ci­dal thoughts and behav­iors.”29 Oth­er courts have acknowl­edged that the sci­en­tif­ic research prov­ing this harm is undis­put­ed.30

Incor­po­rat­ing this ger­mane and impor­tant sci­en­tif­ic research into the Sandin test is pos­si­ble. In the Third Cir­cuit, Williams v. Sec­re­tary Penn­syl­va­nia Depart­ment of Cor­rec­tions held that the “deep and long-term psy­chic harm” of soli­tary con­fine­ment is “the essence of the atyp­i­cal and sig­nif­i­cant hard­ship inquiry required under Sandin and Wilkin­son.”31 As society’s under­stand­ing about the men­tal and phys­i­cal trau­ma that direct­ly results from any soli­tary con­fine­ment evolves, it is becom­ing obvi­ous that these harms pose a sig­nif­i­cant hard­ship. For courts to hold oth­er­wise obfus­cates the real­i­ty of how harsh soli­tary con­fine­ment is and pro­vides cov­er for pris­ons to uti­lize this pun­ish­ment with­out any pro­ce­dur­al safe­guards on a mass scale. The inhu­mane con­di­tions of soli­tary con­fine­ment should alone be suf­fi­cient to estab­lish hard­ship under Sandin.

The dura­tion of con­fine­ment is also rel­e­vant for the Sandin inquiry. Since dif­fer­ent juris­dic­tions com­pare the con­fine­ment-at-issue to dif­fer­ent base­lines, there is great incon­sis­ten­cy when it comes to deter­min­ing what length trig­gers a lib­er­ty inter­est. In a Sec­ond Cir­cuit case, a dura­tion of con­fine­ment as short as six months trig­gered a lib­er­ty inter­est.32 A Sev­enth Cir­cuit case explained that a year could be enough to trig­ger a lib­er­ty inter­est.33 Yet, a Fifth Cir­cuit case com­pil­ing author­i­ties from that juris­dic­tion found that any­thing less than two and a half years was insuf­fi­cient to find a lib­er­ty inter­est.34

A fur­ther com­pli­ca­tion is that some, but not all, courts have held that even when con­di­tions of soli­tary con­fine­ment do not devi­ate from the ordi­nary inci­dents of prison life, dura­tion alone can raise an atyp­i­cal and sig­nif­i­cant hard­ship.35 The result is that the loca­tion of the incar­cer­at­ed indi­vid­ual, rather than the length of his con­fine­ment, deter­mines whether or not his due process rights are rec­og­nized. The Four­teenth Amend­ment applies to all cit­i­zens equal­ly and for such dis­crep­an­cies to exist runs counter to the promise that the gov­ern­ment must meet basic pro­ce­dur­al safe­guards before revok­ing one’s liberty.

The unique uncer­tain­ty sur­round­ing the glob­al COVID-19 pan­dem­ic may be enough to trig­ger a lib­er­ty inter­est for incar­cer­at­ed per­sons who were placed in soli­tary con­fine­ment to pre­vent the spread of COVID-19. While courts can quib­ble about whether a few months or a cou­ple of years is suf­fi­cient, the Supreme Court in Wilkin­son held that an indef­i­nite con­fine­ment could cre­ate a lib­er­ty inter­est.36

For incar­cer­at­ed indi­vid­u­als who have been told they will remain in con­fine­ment until the pan­dem­ic is erad­i­cat­ed, or until their sen­tence ends, their plight is indis­tin­guish­able from the facts of Wilkin­son. There, the incar­cer­at­ed indi­vid­ual was placed in soli­tary for “an indef­i­nite peri­od of time, lim­it­ed only by [his] sen­tence.”37 Though not dis­pos­i­tive, the indef­i­nite dura­tion was a cen­tral fac­tor in the Court’s con­clu­sion that the incar­cer­at­ed indi­vid­ual had a cog­niz­able lib­er­ty inter­est.38 In Hard­en-Bey v. Rut­ter, the Sixth Cir­cuit found the con­fine­ment in ques­tion was “not improb­a­bly . . . indef­i­nite,” and reversed and remand­ed the dis­missal of the incar­cer­at­ed individual’s com­plaint.39  Giv­en the unprece­dent­ed nature of the glob­al pan­dem­ic, soli­tary con­fine­ment imposed in response to COVID-19  is sim­i­lar­ly indef­i­nite in nature.

Here, any attempt to gauge the even­tu­al date an incar­cer­at­ed indi­vid­ual will be released from soli­tary con­fine­ment is an impre­cise esti­mate at best.40 The elim­i­na­tion of COVID-19 from their facil­i­ty depends on the strength and speed of the state’s vac­cine roll­out pro­gram, whether incar­cer­at­ed indi­vid­u­als and cor­rec­tion­al offi­cers get vac­ci­nat­ed, and whether or not these vac­cines are effec­tive against vari­ants.41 This uncer­tain­ty goes to the very core of the Sandin inquiry and was a crit­i­cal fac­tor in the Wilkin­son court’s find­ing that the incar­cer­at­ed individual’s hard­ship was atyp­i­cal and sig­nif­i­cant.42

While the Sandin inquiry fails to take into account the dele­te­ri­ous effects of soli­tary con­fine­ment under so-called “nor­mal” con­di­tions, the unique unknown time­line pre­sent­ed by the COVID-19 pan­dem­ic cre­ates a lib­er­ty inter­est for these incar­cer­at­ed indi­vid­u­als. As such, they are enti­tled to pro­ce­dur­al due process. Their pro­ce­dur­al due process rights include a notice as well as the oppor­tu­ni­ty to be heard through an oral pre­sen­ta­tion or writ­ten tes­ti­mo­ny dur­ing an infor­mal pro­ceed­ing.43 The prison offi­cials must then review this infor­ma­tion in their deci­sion-mak­ing process.44 This infor­mal pro­ceed­ing need not pre­cede the place­ment, but it must occur “with­in a rea­son­able time fol­low­ing an inmate’s trans­fer” to soli­tary con­fine­ment.45 Final­ly, the offi­cials “must engage in some sort of peri­od­ic review” of the evi­dence to ensure that this seg­re­ga­tion is “not be[ing] used as a pre­text for indef­i­nite con­fine­ment.”46 The Supreme Court min­i­mized and stream­lined the nec­es­sary pro­ce­dures in recog­ni­tion of the need for prison offi­cials to run their oper­a­tions smooth­ly.47 There­fore, this express­ly “min­i­mal” pro­ce­dure does not cre­ate an inor­di­nate bur­den on the prison sys­tem.48 Instead, pro­vid­ing pro­ce­dur­al due process in this instance ensures that in emer­gency sit­u­a­tions, the con­sti­tu­tion­al rights of the most vul­ner­a­ble are not extinguished.

Ulti­mate­ly, while prison offi­cials may seek to iso­late an incar­cer­at­ed indi­vid­ual to pre­vent the spread of COVID-19, the pandemic’s unknown length con­fers that indi­vid­ual with a lib­er­ty inter­est under the Sandin and Wilkin­son frame­work. Pro­tect­ing an incar­cer­at­ed person’s access to pro­ce­dur­al due process is vital. This result ensures that in the future, prison offi­cials or those in posi­tions of pow­er abuse nei­ther their sta­tion nor the sit­u­a­tion to harm those entrust­ed in their care.

* Julia Leff is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pre­sent­ed at the 2021 William B. Bryant-Luke Charles Moore Civ­il Rights Moot Court Com­pe­ti­tion at Howard Uni­ver­si­ty School of Law. The ques­tion pre­sent­ed asked whether, under the Due Process Clause of the Four­teenth Amend­ment, an incar­cer­at­ed indi­vid­ual placed in soli­tary con­fine­ment for his own med­ical pro­tec­tion is enti­tled to any pro­ce­dur­al due process. This arti­cle presents a dis­til­la­tion of the side of the argu­ment assigned to the author in the Bryant Moore Com­pe­ti­tion, and the views expressed here­in do not nec­es­sar­i­ly reflect the view of the author.

1. See, e.g., Andrew Leon Han­na, Soli­tary Con­fine­ment as Per Se Uncon­sti­tu­tion­al, 21 U. Pa. J. Con­st. L. Online 1, 11, 21 (2019) (not­ing that soli­tary con­fine­ment is prac­ticed in every U.S. juris­dic­tion, and that there were between 80,000 and 100,000 indi­vid­u­als kept in soli­tary con­fine­ment in 2019); Craig Haney & Mona Lynch, Reg­u­lat­ing Pris­ons of the Future: A Psy­cho­log­i­cal Analy­sis of Super­max and Soli­tary Con­fine­ment, 23 N.Y.U. Rev. L. & Soc. Change 477, 531 (1997) (“There is not a sin­gle study of soli­tary con­fine­ment where­in non-vol­un­tary con­fine­ment that last­ed for longer than 10 days failed to result in neg­a­tive psy­cho­log­i­cal effects.”)

2. E.g., Katie Pearce, What is Social Dis­tanc­ing and How Can It Slow the Spread of COVID-19?, Hub (Mar. 13, 2020),

3. Danya Issawi & Derek M. Nor­man, In Ver­mont, Iso­lat­ing Inmates Kept Covid at Bay, but at a Price, N.Y. Times (Apr. 21, 2021), (describ­ing how incar­cer­at­ed peo­ple in Ver­mont were placed “in 8½-by-10-foot cells in near-total iso­la­tion” for weeks at a time to pre­vent the spread of COVID-19).

4. Joseph Shapiro, As COVID-19 Spreads In Pris­ons, Lock­downs Spark Fear Of More Soli­tary Con­fine­ment, NPR (June 15, 2020, 4:53 PM),

5. Wilkin­son v. Austin, 545 U.S. 209, 221 (2005).

6. 515 U.S. 472, 484 (1995).

7. Id. at 474–75.

8. Id. at 475–76.

9. Id. at 486.

10. Id.

11. Id.

12. Id. at 487.

13. See infra notes 22–25 and accom­pa­ny­ing text.

14. Wilkin­son, 545 U.S. at 223.

15. Id. at 213.

16. Id. at 214–215.

17. Id. at 223–24 (not­ing that “almost all human con­tact is pro­hib­it­ed, even to the point that con­ver­sa­tion is not per­mit­ted from cell to cell; [the incar­cer­at­ed individual’s cell] light, though it may be dimmed, is on for 24 hours; exer­cise is for 1 hour per day, but only in a small indoor room”).

18. Id.

19. Id.

20. Id.

21. Hard­en-Bey v. Rut­ter, 524 F.3d 789, 793 (6th Cir. 2008) (explain­ing that “most (if not all) of our sis­ter cir­cuits have con­sid­ered the nature of the . . . con­fine­ment and its dura­tion in deter­min­ing whether it impos­es an ‘atyp­i­cal and sig­nif­i­cant hardship’”).

22. See, e.g., Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (“[A]lthough the con­di­tions were more bur­den­some than those imposed on the gen­er­al prison pop­u­la­tion, they were not so atyp­i­cal that expo­sure to them for six months imposed a sig­nif­i­cant hard­ship in rela­tion to the ordi­nary inci­dents of prison life.”); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (“The Sandin Court seems to sug­gest that a major dif­fer­ence between the con­di­tions for the gen­er­al prison pop­u­la­tion and the seg­re­gat­ed pop­u­la­tion trig­gers a right to a hearing.”).

23. See, e.g., Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997) (revers­ing and remand­ing with instruc­tions to the dis­trict court to con­duct “[a] com­par­i­son between admin­is­tra­tive and dis­ci­pli­nary con­fine­ment” to deter­mine whether a lib­er­ty inter­est exists).

24. See, e.g., Wag­n­er v. Han­ks, 128 F.3d 1173, 1175 (7th Cir. 1997) (“We do not think that com­par­i­son can be lim­it­ed to con­di­tions in the same prison, unless it’s the state’s most secure one.” (cit­ing Grif­fin v. Vaughn, 112 F.3d 704, 708–09 (3d Cir. 1997))).

25. See Bass v. Per­rin, 170 F.3d 1312, 1318 n.10 (11th Cir. 1999) (not­ing that the court would not assess whether a lib­er­ty inter­est exist­ed on com­par­a­tive grounds because the court had deter­mined there was a lib­er­ty inter­est cre­at­ed by state policy).

26. See Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (“There is no sin­gle stan­dard for deter­min­ing whether a prison hard­ship is atyp­i­cal and sig­nif­i­cant, and the ‘con­di­tion or com­bi­na­tion of con­di­tions or fac­tors . . . requires case by case, fact by fact con­sid­er­a­tion.’” (quot­ing Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996))).

27. See, e.g., Incumaa v. Stir­ling, 791 F.3d 517, 531 (4th Cir. 2015) (cit­ing the “the near-dai­ly cav­i­ty and strip search­es; the con­fine­ment to a small cell for all sleep­ing and wak­ing hours, aside from ten hours of activ­i­ty out­side the cell per month; the inabil­i­ty to social­ize with oth­er inmates; and the denial of edu­ca­tion­al, voca­tion­al, and ther­a­py pro­grams” as rea­sons for find­ing that the inmate held a lib­er­ty interest).

28. See Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., con­cur­ring) (rec­og­niz­ing that “[y]ears on end of near-total iso­la­tion exact a ter­ri­ble price”); Glos­sip v. Gross, 576 U.S. 863, 926 (2015) (Brey­er, J., dis­sent­ing) (not­ing that it is “well doc­u­ment­ed that . . . soli­tary con­fine­ment [for longer than 15 days] pro­duces numer­ous dele­te­ri­ous harms.”).

29. Davis, 576 U.S. at 289 (Kennedy, J., concurring).

30. Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019) (not­ing that the lead­ing sur­vey of the lit­er­a­ture found that, “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” (quot­ing Craig Haney, Men­tal Health Issues in Long-Term Soli­tary and ‘Super­max’ Con­fine­ment, 49 Crime & Delinq. 124, 132 (2003))); Palakovic v. Wet­zel, 854 F.3d 209, 225 (3d Cir. 2017) (“[W]e first acknowl­edge the robust body of legal and sci­en­tif­ic author­i­ty rec­og­niz­ing the dev­as­tat­ing men­tal health con­se­quences caused by long-term iso­la­tion in soli­tary con­fine­ment.”); Gor­don v. Mae­sa­ka-Hira­ta, 431 P.3d 708, 726 (2018) (not­ing that “even a few days in soli­tary con­fine­ment can have neg­a­tive effects on inmates’ men­tal health, even in inmates not pre­vi­ous­ly diag­nosed with men­tal illness”).

31. Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 559, 569 (3d Cir. 2017).

32. See, e.g., J.S. v. T’Kach, 714 F.3d 99, 106 (2d Cir. 2013) (hold­ing that “with­out fac­tu­al find­ings to the con­trary, we have lit­tle dif­fi­cul­ty con­clud­ing that J.S.’s alle­ga­tion of 188 days of admin­is­tra­tive con­fine­ment is suf­fi­cient to impli­cate Sandin-type lib­er­ty interests”).

33. Mar­i­on v. Colum­bia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009) (explain­ing that “seg­re­ga­tion for 240 days may impli­cate a lib­er­ty interest”).

34. Wilk­er­son v. Good­win, 774 F.3d 845, 855 (5th Cir. 2014) (con­clud­ing that con­fine­ment up to two and a half years is insuf­fi­cient to trig­ger a lib­er­ty interest).

35. See, e.g., Tru­jil­lo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) (explain­ing that when a “pris­on­er is sub­ject­ed to a lengthy peri­od of seg­re­ga­tion, the dura­tion of that con­fine­ment may itself be atyp­i­cal and sig­nif­i­cant”) (empha­sis added); Mar­i­on, 559 F.3d at 699 (not­ing that “peri­ods of [soli­tary] con­fine­ment that approach or exceed one year may trig­ger a cog­niz­able lib­er­ty inter­est with­out any ref­er­ence to con­di­tions”); Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th Cir. 2014) (explain­ing that while the con­di­tions of the inmate’s soli­tary con­fine­ment were not nec­es­sar­i­ly dis­tin­guish­able from oth­ers, the twen­ty-sev­en-month dura­tion with­out peri­od­ic review sat­is­fied the Sandin stan­dard); Hatch v. Dis­trict of Colum­bia, 184 F.3d 846, 858 (D.C. Cir. 1999) (remand­ing for addi­tion­al fact-find­ing because “even if the con­di­tions [the incar­cer­at­ed indi­vid­ual] faced were no more restric­tive than ordi­nary con­di­tions of admin­is­tra­tive seg­re­ga­tion, the dis­trict court should deter­mine whether its dura­tion [of] twen­ty-nine weeks . . . was ‘atyp­i­cal’”).

36. Wilkin­son v. Austin, 545 U.S. 209, 223–24 (2005) (find­ing a lib­er­ty inter­est when dura­tion in soli­tary was indef­i­nite and “lim­it­ed only by an inmate’s sentence”).

37. Id. at 214–15.

38. Id. at 224 (find­ing that the Super­max facil­i­ty “impose[d] an atyp­i­cal and sig­nif­i­cant hard­ship under any plau­si­ble base­line” in part because “[u]nlike the 30-day place­ment in Sandin, place­ment [here] is indefinite”).

39. 524 F.3d 789, 793 (6th Cir. 2008).

40. Cf. Quint Forgey, Fau­ci Pre­dicts Nor­mal Life Won’t Return in U.S. Before Fall 2021, Politi­co (Dec. 31, 2020 2:10 PM),–453055 (not­ing that pre­dic­tions for when “nor­mal life [will] resume” are “con­tin­gent upon the U.S. ‘effi­cient­ly, quick­ly and effec­tive­ly’ imple­ment­ing vac­ci­na­tion pro­grams that have thus far lagged behind schedule”).

41. Yas­meen Abu­taleb, Car­olyn Y. John­son & Joel Achen­bach, ‘The War Has Changed’: Inter­nal CDC Doc­u­ment Urges New Mes­sag­ing, Warns Delta Infec­tions Like­ly More Severe, Wash. Post (July 29, 2021), (quot­ing a vac­cine expert who explains, “I think we have to become com­fort­able with coro­n­avirus not going away”).

42. Wilkin­son v. Austin, 545 U.S. 209, 224 (2005).

43. Hewitt v. Helms, 459 U.S. 460, 475–76 (1983) (explain­ing that plac­ing a pris­on­er in admin­is­tra­tive seg­re­ga­tion requires “only an infor­mal non­ad­ver­sary review of evi­dence” as opposed to a detailed and adver­sar­i­al tri­al-type pro­ceed­ing), over­ruled in part by Sandin v. Con­ner, 515 U.S. 472 (1995).

44. Id. at 472 (“[P]etitioners were oblig­at­ed to engage only in an infor­mal, non-adver­sary review of the infor­ma­tion sup­port­ing respon­den­t’s admin­is­tra­tive con­fine­ment, includ­ing what­ev­er state­ment respon­dent wished to submit . . . .”).

45. Id. at 476 n.8.

46. Id. at 476 n.9.

47. Id. at 472 (“Prison admin­is­tra­tors . . . should be accord­ed wide-rang­ing def­er­ence in the adop­tion and exe­cu­tion of poli­cies and prac­tices that in their judg­ment are need­ed to pre­serve inter­nal order and dis­ci­pline and to main­tain insti­tu­tion­al secu­ri­ty.” (quot­ing Bell v. Wolfish, 441 U.S. 520, 547 (1979))).

48. Steven­son v. Car­roll, 495 F.3d 62, 70 (3d Cir. 2007) (describ­ing the pro­ce­dures required to com­port with the hold­ing of Hewitt v. Helms).