Sunday, June 21, 2015

Solitary Confinement: Cruel but Not Unusual

      Hector Ayala, convicted murderer, has spent most of his 25-plus years in California’s San Quentin prison in what corrections officials call “administrative segregation” — solitary confinement. Ayala spends 23 hours each day alone in a small cell; he is allowed an hour of exercise, but with little or no opportunity to talk or interact with other prisoners.
      Justice Anthony M. Kennedy elicited that information about Ayala’s incarceration at the end of a Supreme Court argument in early March on Ayala’s efforts to get a new trial. Ayala was asking the court to uphold a lower court order granting him a new trial on the ground that blacks and Hispanics were improperly excluded from the jury that convicted him in 1989 of a triple murder four years earlier.
      Kennedy voted with four other conservative justices in the 5-4 decision, Davis v. Ayala, that found no fault with the jury selection procedures and nullified the order to grant him a new trial. But when he testified before Congress a month after the argument in connection with the court’s budget, Kennedy recalled the case in an extemporaneous comment criticizing solitary confinement. The practice “literally makes men mad,” Kennedy told a House Appropriations subcommittee on April 4.
      Ayala is one of an estimated 25,000 inmates in the United States currently serving sentence in whole or substantial part in solitary confinement. An American law professor serving as a United Nations human rights official concluded a few years ago that long-term solitary confinement constitutes torture, in violation of an international treaty signed by, among others, the United States.
      Kennedy used a more visible platform last week [June 18] to speak out against solitary confinement and, in an extraordinary departure from judicial restraint, to invite constitutional challenges to the practice. Near the end of a four-page concurring opinion in Ayala’s case, Kennedy said that, in a proper case, “the judiciary may be required . . . to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
      Kennedy accuses the legal profession and the public of being late to correctional issues, but he can rightly be accused of being late to the issue of mass, long-term incarceration. Kennedy provided a critical fifth vote in 1991 for upholding a life-without-parole sentence imposed on a South Dakota for possession of 672 grams (about 23 ounces) of cocaine. A decade later, he again provided a critical fifth vote in 2003 for upholding California’s “three-strikes law,” which imposes a mandatory life term for a three-time recidivist.
      Two years later, Kennedy wrote for a unanimous court in finding no due process problems in Ohio’s system of imposing administrative segregation on dangerous or recalcitrant inmates (Wilkinson v. Austin, 2005). He noted, however, that Eighth Amendment issues of cruel and unusual punishment had been dropped or resolved in lower courts before the justices got the case.
      Kennedy gets more credit from sentencing reform advocates for providing critical votes in five other cases from 2002 to 2012 that limited eligibility for the death penalty and restricted life-without-parole sentences for juvenile offenders. In addition, he wrote the 5-4 decision in Brown v. Plata (2011) upholding a lower court order that California reduce overcrowding in prisons. Kennedy wrote in that opinion that the medical and mental health care provided to California inmates was “below the standard of decency” inherent in the Eighth Amendment.
      In the new case, Kennedy makes clear that he believes long-term solitary confinement also falls below standards of decency. He notes criticism of the “human toll” of long-term isolation by, among others, an 18th-century British prison reformer and the 19th-century English novelist Charles Dickens.
      The Supreme Court itself remarked in 1890 on the “further terror and peculiar mark of infamy” for inmates subjected to solitary confinement. The court in In re Medley noted that “a considerable number” of inmates in solitary confinement “fell . . . into a semi-fatuous condition,” while “others became violently insane” and “others, still, committed suicide.”
      Kennedy acknowledged that Ayala’s solitary confinement had no bearing on the legal issues in his case. But Justice Clarence Thomas felt obliged to issue a sharp rejoinder. He noted that Ayala’s “accommodations” were “a far sight more spacious” than those of the three victims in the case. Thomas has voted consistently since joining the court in 1991 to reject Eighth Amendment claims about prison conditions — even in an unsavory Alabama case brought by an inmate shackled to a “hitching post” for an entire day (Hope v. Pelzer).
      The risk of suicide from long-term solitary confinement was made clear in the recent case of Kalief Browder, the teenager who hanged himself at New York City’s infamous Rikers Island after being held for three years without trial for stealing a backpack. Kennedy includes a citation to the incident as evidence of “a new and growing awareness in the broader public” about corrections issues and solitary confinement in particular.
      Solitary confinement has grown and become institutionalized in the era of mass incarceration. “Years on end of near-total isolation exacts a terrible price,” Kennedy writes. The price is paid by individuals with little capacity to influence the political branches. Kennedy rightly suggests the courts as the most likely forum for stemming a cruel but not-so-unusual punishment.

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