An End to Unregulated Solitary Confinement: The Need for a Second Chance

/ Criminal Justice, Eighth Amendment / By

Eli Salomon*1

I. Introduction

In 2016, President Barack Obama issued an executive order banning solitary confinement of juveniles2 in all federal prisons.3 He asserted that “[t]he United States is a nation of second chances, but the experience of solitary confinement often undercuts that second chance.”4 Solitary confinement is the practice of removing a prisoner from their cell, often for disciplinary reasons, and placing them into a smaller, isolated cell. While conditions vary from prison to prison, prisoners are usually kept in windowless rooms measuring six-by-nine or eight-by-ten feet with only a bed, sink, toilet, and metal door for twenty-two to twenty-four hours at a time.5 With roots in Quaker tradition, the practice was originally meant to give a prisoner time to reflect and repent for their actions.6 However, the negative psychological, social, and developmental effects that juveniles in unregulated solitary confinement experience go far beyond the scope of these original intentions.

This Note examines the practice of unregulated solitary confinement in state prisons under the Eighth Amendment and argues the practice is unconstitutional from both an originalist perspective and the contemporary perspective of the U.S. Supreme Court. Part II will discuss both the originalist interpretation of the Cruel and Unusual Punishment Clause and the contemporary Court’s perspective on both its meaning and application to confinement in prisons. Parts III and IV will apply the originalist and contemporary perspectives to the practice of unrestricted juvenile solitary confinement and find that the practice of unregulated juvenile solitary confinement violates the interpretation of the clause in both perspectives. Finally, Part V will discuss the implications of recognizing unregulated juvenile solitary confinement as unconstitutional.

II. Cruel and Unusual Punishment

A. Originalist Interpretation

In order to understand how the phrase “cruel and unusual” was understood at the time the Eighth Amendment was ratified, it is necessary to understand the way that the words “cruel” and “unusual” were interpreted in a legal context. The clause itself already contained a pre-existing legal meaning,7 originating from the English Bill of Rights, which barred “cruell and unusuall” punishments.8 The Bill of Rights fell under the English common law, which was seen as customary in the region: it gained justification from the laws’ prolonged usage in a jurisdiction.9 Actions that had been used for a long time were considered “usual,” while those not used for a long time were considered “unusual.”10 Because the thirteen colonies accepted English common law, the usage of the terms “usual” and “unusual” remained consistent in the United States.11 Not only was “unusual” utilized in the same manner as English common law in the Declaration of Independence—to complain about English practice of calling legislatures at “places unusual”12—but in early American case law up until the nineteenth century, courts interpreted “unusual” to mean contrary to long usage.13 In the early United States, just as in England, the word “unusual” was understood as signifying “contrary to long usage” in a legal context.

During the eighteenth and early nineteenth centuries, the word “cruel” was understood to have two meanings—taking delight in causing pain (what prominent law professor John Stinneford refers to as “cruel intent”) and harmful, inhumane, and barbarous (what Stinneford refers to as “cruel effect”).14 However, Stinneford notes that in legal debates and early American case law courts were consistent in reading “cruel” in line with the “cruel effect” reading.15 For example, in Jones v. Commonwealth (1799), a court held a joint fine which disproportionately affected one of the co-defendants was both an excessive fine and cruel and unusual punishment.16 Thus, “cruel” denotes an action which is unjustly harsh, and when read in conjunction with the legal meaning of “unusual” at the time, the clause was interpreted to prohibit punishments that were considered “unjustly harsh in light of longstanding prior practice.”17

B. Contemporary Court Perspective

While the Supreme Court has yet to adequately define “cruel” and “unusual,” its interpretation of the Cruel and Unusual Punishment Clause and the Eighth Amendment can provide clarity as to how it may determine a punishment to be cruel and unusual. Currently, the Court bases its interpretation from an approach established in Trop v. Dulles (1958), in which the Court stated that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”18 To determine the “evolving standards of decency,” the Court analyzed how the punishment would negatively affect the defendant, international legislation, and the justices used their own judgment.19 They have also come to use public and expert opinion and place importance on state legislatures as well.20 

The Court defined confinement as a form of punishment in Rhodes v. Chapman (1981).21 However, confinement carries different standards that must be analyzed to consider whether the conditions are “cruel and unusual.” In Wilson v. Seiter (1991), the Court held that there were two components by which conditions of confinement must be evaluated to consider them in violation of the Eighth Amendment—an objective component (whether a deprivation is “sufficiently serious”) and a subjective component (whether the official who gave the punishment acted “with a sufficiently culpable state of mind”).22 To establish a deprivation, the conditions must point to the deprivation of a single human need.23 To establish culpability, it must be proven that an official acted with “deliberate indifference.”24

Because the Court incorporated the Eighth Amendment to states through the Fourteenth Amendment,25 the conditions of solitary confinement in state prisons can be evaluated by the Eighth Amendment. The next section will analyze unregulated solitary confinement as it satisfies the objective component and the originalist interpretation of “cruel.” Section IV will analyze unregulated solitary confinement as it satisfies the subjective component and the originalist interpretation of “unusual.”

III. What Makes Unregulated Juvenile Solitary Confinement Cruel?

 To be considered cruel, solitary confinement must not only be “unjustly harsh,” but also involve a “sufficiently serious” deprivation and enacted with “deliberate indifference” (which was clarified to mean recklessness).26 In solitary confinement, juveniles are subjected to negative psychological, social, and developmental effects. These are a result of multiple conditions, but mostly point towards the deprivation of an adolescent’s need for stimulation.27 Both adults and juveniles can experience things such as lower levels of brain function, hallucinations, depression, hypersensitivity to stimuli, perceptual distortions, appetite and weight loss, feelings of apathy, and lack of impulse control, but juveniles experience these things more quickly and severely.28 In fact, isolation may not only make such effects more long-lasting and comprehensive,29 but holds the potential to also cause long-lasting effects on brain structure and function.30 

This is compounded by the inability of juveniles to communicate with their families for the duration of their isolation. Family is an essential aspect in helping juveniles form their identity; the removal of familial bonds in their adolescent lives makes it difficult for them to recover and develop normally.31 This social stimulation is necessary for adolescents; without it, the negative effects of unregulated solitary confinement compound and produce worse outcomes for adolescents than adults. The compounding of multiple negative effects that highlight a single deprivation caused by the conditions of confinement—social stimulation in this case—establish the conditions of unregulated solitary confinement as “sufficiently serious.” Additionally, eliminating the practice solitary confinement would reduce or leave unaffected an individual’s level of violence, and the practice has not been proven to deter future rule violations, calling the practice’s effectiveness into question.32 As a punishment that has no rehabilitative value and instead only causes serious psychological, social, and developmental harm, it is unjustly harsh.

IV. What Makes Juvenile Solitary Confinement Unusual?

Recently, the Court has come to link the term “unusual” with how often a certain practice happens in states.33 The term has come to denote ‘rarity,’ as opposed to the originalist interpretation as “contrary to long usage.” While the practice of juvenile solitary confinement is still used in state prisons across the United States, recent research and policy has broadly recognized the harm unregulated solitary confinement poses for juveniles alongside calls for limiting the practice.34 Currently, twenty-three states and the District of Columbia either limit or prohibit the practice. Additionally, former President Barack Obama placed a ban on juvenile solitary confinement in federal prisons in 2016. Two years later, the First Step Act limited the confinement of juveniles in federal custody to three hours.35 This consistency in direction not only implicates the growing rarity of and concern for the practice, but also the “deliberate indifference” requirement to establish culpability.36

Federal legislation, research describing the negative effects of unregulated juvenile solitary confinement, and the wide recognition the issue has gained has caused officials to address the topic.37 The Court held in Roper v. Simmons (2005) that the direction of change of policy can be used to determine whether a practice has fallen out of line with the “evolving standards of decency.”38 While most states have not placed limits on juvenile solitary confinement, the federal government’s three hour limit along with some states’ limits or prohibitions on the practice show a general consistency in the policy to regulate the practice. Additionally, international reports such as the Nelson Mandela Rules and those made by the United Nations Special Rapporteur on Torture have called for the prohibition of solitary confinement for juveniles.39 Due to the demonstrated consistency in limiting or prohibiting the practice of juvenile solitary confinement in the United States and internationally, the unregulated practice violates the contemporary standards of decency.

While the Court’s interpretation only accounts for the growing rarity of the practice, the originalist interpretation analyzes whether unregulated juvenile solitary confinement has been used for a very long time. Although the practice has existed since the 1800s, solitary confinement fell out of favor with states that adopted it.40 The practice was found to be too costly and detrimental to prisoners’ mental health.41 Likewise, it was even recognized in 1930 that solitary confinement had profusely negative effects on prisoners’ mental health.42 However, the practice first reappeared in the mid-1960s and regained popularity in the 1980s.43 Being that the practice only regained momentum 40 years ago, it has not held long usage in the United States; the practice is therefore contrary to long usage, and unusual by an originalist interpretation.

V. Conclusion and Implications

Juvenile solitary confinement remains widely in practice today. Although there is a movement leaning towards limiting or prohibiting the practice, most states use it without restrictions. The practice, however, does nothing to adequately rehabilitate juvenile offenders, and if left unregulated, can only continue unnecessarily harming them. The Court must take a stand on the issue. By declaring the unregulated practice unconstitutional, the Court can create a greater push for rehabilitation of juveniles in the United States.

  1. *B.A Candidate for Sociology, Fordham College at Rose Hill, Class of 2025. Thank you so much to the FULR Editorial Board and my Senior Editor, Alleyah Ally, for your assistance and support. It has been an honor to write for the FULR Online Publication.
  2. The word “juveniles” refers to all people younger than eighteen years old.
  3. Fact Sheet: Department of Justice Review of Solitary Confinement, The White House Office of the Press Secretary (Jan. 25, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/01/25/fact-sheet-department-justice-review-solitary-confinement?utm_source=youth.gov&utm_medium=federal-links&utm_campaign=reports-and-resources.
  4. Barack Obama, Barack Obama: Why we must rethink solitary confinement, The Washington Post (Jan. 25, 2016), https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html.
  5. Sal Rodriguez, Solitary Confinement in the United States: FAQ, Solitary Watch (2015), http:// solitarywatch.com/wp-content/uploads/2017/09/Solitary-Confinement-FAQ-2015.pdf.
  6. Merin Cherian, Cruel, Unusual, and Unconstitutional: An Originalist Argument For Ending Long-Term Solitary Confinement, 56 Am. Crim. L. Rev. 1756, 1774 (2019).
  7. John F. Stinneford, The Original Meaning of “Cruel”, 105 Geo. L.J. 441, 465 (2017).
  8. Cherian, supra note 5, at 1771.
  9. Id. at 1766.
  10. John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770 (2008).
  11. Id. at 1771.
  12. Id. at 1767.
  13. Stinneford, The Original Meaning of “Unusual”, supra note 9, at 1768.
  14. Stinneford, The Original Meaning of “Cruel”, supra note 6, at 467. These two definitions are based on the two leading dictionaries at the time: Samuel Johnson’s “Dictionary of the English Language” (1755), and Noah Webster’s American Dictionary of the English Language (1828). Both contain two meanings for cruelty that align with the cruel intent and cruel effect reading.
  15. Id. at 473-474.
  16. Id. at 484-485.
  17. Id. at 502.
  18. Trop v. Dulles, 356 U.S. 86, 101 (1958).
  19. Meghan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?, 87 Wash. U. L. Rev. 567, 586-589 (2010).
  20. Id. at 589.
  21. Rhodes v. Chapman, 452 U.S. 337, 345 (1981).
  22. Wilson v. Seiter, 501 U.S. 294, 298 (1991).
  23. Id. at 304.
  24. Id. at 297; Farmer v. Brennan, 511 U.S. 825 (1994).
  25. Robinson v. California, 370 U.S. 660 (1962).
  26. Wilson, 501 U.S. at 298; Farmer, 511 U.S.
  27. Alone and Afraid: Children Held in Solitary Confinement and Isolation in Juvenile Detention and Correctional Facilities, American Civil Liberties Union 5 (Nov. 2013), https://www.aclu.org/sites/default/files/field_document/alone_and_afraid_complete_final.pdf.
  28. Id. at 4; Jessica Lee, Lonely Too Long: Redefining and Reforming Juvenile Solitary Confinement, 85 Fordham L. Rev. 845, 856 (2016).
  29. Alone and Afraid, supra note 26, at 5.
  30. Andrew Clark, Juvenile Solitary Confinement as a Form of Child Abuse, 45 J. Am. Acad. Psychiatry & Law 350, 352 (2017).
  31. Lee, supra note 27, at 858.
  32. Alison Gordon, Challenging Solitary Confinement Through State Constitutions, 90 U. Cin. L. Rev. 454, 460–461 (2021).
  33. See Ryan, supra note 18, at 587.
  34. See, e.g., Alone and Afraid, supra note 26, at 2-5; Clark, supra note 29, at 350-353.
  35. First Step Act of 2018, Pub. Law No. 115–391, 132 Stat. 5194, 5249.
  36. Gordon, supra note 31, at 469.
  37. Id. The Fourth Circuit took these steps in Porter v. Clarke, 852 F. 3d 358 (4th Cir. 2017), and determined that solitary confinement for people on death row was considered cruel and unusual. While the decision was made by a lower court and therefore is not binding upon the Supreme Court, it provides an example in which the subjective component of the Cruel and Unusual Punishment Clause can possibly be interpreted to implicate the practice of unregulated juvenile solitary confinement.
  38. Roper v. Simmons, 543 U.S. 551, 566 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 315 (2002)).
  39. The United Nations Standard Minimum Rules for the Treatment of Prisoners, United Nations Office on Drugs and Crime (Jan. 8, 2016), https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf; Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment of Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, United Nations Office on Drugs and Crime (Oct. 7, 2013), https://www.unodc.org/documents/justice-and-prison-reform/SPECIAL_RAPPORTEUR_EN.pdf.
  40. Cherian, supra note 5, at 1775-1776.
  41. Id.
  42. Id.
  43. Alexander A. Reinert, Solitary Troubles, 93 Notre Dame L. Rev. 927, 933 (2018).
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