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Supreme Court Justice Anthony Kennedy goes out of his way to denounce solitary confinement

August 21, 2015

by Samantha Lachman

Washington – Justice Anthony Kennedy agreed with the majority in its most recent capital punishment case. But in an unusual move, he dedicated almost all of his concurring opinion to condemning the practice of solitary confinement in the nation’s prisons, even though the issue, of his own admission, had “no direct bearing” on the case.

A prisoner in solitary confinement in the Louisiana State Penitentiary Angola, a former plantation, peers through his mail and food slot. Will the condemnation of longterm solitary by Justice Kennedy and President Obama help him finally find freedom? – Photo: Adam Shemper

A prisoner in solitary confinement in the Louisiana State Penitentiary Angola, a former plantation, peers through his mail and food slot. Will the condemnation of longterm solitary by Justice Kennedy and President Obama help him finally find freedom? – Photo: Adam Shemper

The case concerned whether the defendant, Hector Ayala, should have been able to argue that prosecutors intentionally excluded Black and Hispanic jurors during his 1989 trial for a triple murder during a San Diego drug robbery four years earlier. The trial judge asked prosecutors to justify why they had excused all seven potential minority jurors, but accepted their explanations in a private hearing without providing an opportunity for Ayala’s lawyers to respond.

On Thursday, the court’s conservative wing, joined by Kennedy, held that any jury selection error in the case was harmless, overturning a decision from the 9th U.S. Circuit Court of Appeals.

In Kennedy’s lengthy opinion concerning how Ayala was incarcerated, he noted that Ayala had been isolated for most of his 25 years of custody. The justice wrote that at least 25,000 of the country’s inmates are serving a substantial amount of their sentence in isolation, “many regardless of their conduct in prison.”

“If [Ayala’s] solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone,” Kennedy wrote.

Kennedy’s opinion emphasized growing evidence that solitary confinement irreparably harms prisoners, quoting authors Charles Dickens and Fyodor Dostoyevsky along the way. Crucially, he invites litigation – which is already winding its way through the federal court system – over the issue. Kennedy frequently serves as the court’s swing vote, so this invitation may hearten criminal justice reform advocates.

Justice Anthony Kennedy agreed with the majority in its most recent capital punishment case. But in an unusual move, he dedicated almost all of his concurring opinion to condemning the practice of solitary confinement in the nation’s prisons, even though the issue, of his own admission, had “no direct bearing” on the case.

“In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them,” he wrote.

The justice suggested that the public wasn’t sufficiently interested in how prisoners are incarcerated.

“Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence,” he argued. “Too easily ignored is the question of what comes next. Prisoners are shut away – out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.”

Kennedy’s condemnation of solitary confinement provoked sarcastic disagreement from Justice Clarence Thomas, who was also in the court’s majority. Thomas argued that Ayala’s accommodations in prison were better than those of his victims.

President Obama embraces Justice Ruth Bader Ginsburg on Capitol Hill in Washington, Tuesday, Jan. 25, 2011, prior to delivering his State of the Union address, as Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor look on. – Photo: Pablo Martinez Monsivais, UPI

President Obama embraces Justice Ruth Bader Ginsburg on Capitol Hill in Washington, Tuesday, Jan. 25, 2011, prior to delivering his State of the Union address, as Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor look on. – Photo: Pablo Martinez Monsivais, UPI

“I join the Court’s opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court,” Thomas wrote. “I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

Kennedy’s advocacy on the issue has previously gone beyond the pages of his opinions: In March, he told a House of Representatives subcommittee that “solitary confinement literally drives men mad.” The stance fits in with Kennedy’s overall emphasis on the concept of dignity.

In his Thursday opinion, Kennedy suggested that the public is increasingly becoming aware of the issue. He cited news articles about Kalief Browder, who committed suicide earlier this month after being put in solitary for roughly two-thirds of his three years at New York City’s Rikers Island jail complex. Browder was charged with stealing a backpack, but was confined to solitary without standing trial or being found guilty of the charge.

“Over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons,’” Kennedy concluded. “There is truth to this in our own time.”

Read Kennedy’s full opinion here and below.

Samantha Lachman is a staff reporter at The Huffington Post, writing about state legislatures and civil rights. Follow her on Twitter @SamLachman or email her at samantha.lachman@huffingtonpost.com.

JUSTICE KENNEDY, concurring

My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This sepa­rate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case.

In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary confinement. Tr. of Oral Arg. 43– 44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respond­ent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison. Ibid.

The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison re­former John Howard wrote “that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or ap­preciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion nodoubt denied many of today’s inmates.

One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears “a further terror and peculiar mark of infamy.” In re Medley, 134 U. S. 160, 170 (1890); see also id., at 168 (“A considerable number of the prison­ers fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide”). The past centu­ries’ experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184.

Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v. Plata, 563 U. S. ___ (2011); Hutto v. Finney, 437 U. S. 678, 685 (1978) (“Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment”); Weems v. United States, 217 U. S. 349, 365–367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In im­posing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference.

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed law­yers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges as­sumed these matters were for the policymakers and cor­rectional experts.

There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (de­tailing multiyear solitary confinement of Kalief Browder, who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penological and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Chal­lenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010).

These are but a few examples of the expert scholarship that, along with continued attention from the legal com­munity, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances tempo­rary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psy­chiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary con­finement include anxiety, panic, withdrawal, hallucina­tions, self-mutilation, and suicidal thoughts and behav­iors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correc­tional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.

This is an exact republication of the original opinion – no editing. It was issued June 18, 2015.

3 thoughts on “Supreme Court Justice Anthony Kennedy goes out of his way to denounce solitary confinement

  1. TONY MEDINA

    WITH OVER TWO MILLION INCARCERATED,, PRISON IS A TERROR-THREAT AGAINST AMERICAN CITIIZENS, NOT JUST A LEGAL THREAT. FUCK THE FBI, AND SO-CALLED JUSTICE (PRISON) DEPTARMENT

    Reply
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