by Julia Leff*

After medical experts advised social distancing and quarantining in response to the COVID-19 pandemic, many prisons assigned incarcerated persons to solitary confinement. This situation raises the question of whether an incarcerated individual is entitled to due process when they are placed in indefinite solitary confinement for their medical protection or to prevent the spread of a virus. In this Contribution, Julia Leff (’22) argues that the uncertainty regarding the length of the COVID-19 pandemic is sufficient to provide an incarcerated individual his right to procedural due process under the Fourteenth Amendment.

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), (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).