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In a recent Supreme Court case about jury selection procedures, Davis v. Ayala, Justice Kennedy wrote a separate concurrence because he wanted to note that, although the case before the Court had nothing at all to do with prison conditions, it is simply wrong that the prisoner before the Court had spent the vast majority of his 25 years in prison in solitary confinement. As Justice Kennedy described, “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.” Just pause to think about the reality of that – imagine the tiny parking space size of that room, imagine the lack of natural light, imagine no one to talk to, day after day, month after month, year after year. It’s a pretty disturbing image.

Justice Kennedy noted that about 25,000 inmates are relegated to solitary confinement, many confined regardless of their conduct in prison. Again, pause to digest that: stuck in isolation NOT because they are bad prisoners, dangerous to others, or somehow misbehaved while incarcerated. Many are not even convicted of committing a violent crime; some have not even been convicted. Moreover, human rights groups estimate that it’s more like 80,000 people that are kept in solitary confinement in U.S. prisons on any given day, far more per capita than any other country in the world. One horrify recent example is Kalief Browder. As the New Yorker describes, Mr. Browder was: arrested in 2010, at age sixteen, for a robbery he claimed he did not committed; he spent about three years on Rikers awaiting trial, about two years of which was spent in solitary confinement, where he attempted suicide several times. Tragically, after the charges against him were dropped without trial, he was released from Rikers to a groundswell of support, and his life was moving forward in a positive direction, Mr. Browder remained haunted by his confinement and committed suicide.

It is well established that solitary confinement causes serious and lasting psychological damage. Justice Kennedy discusses the grave impact that such extreme isolation can have, noting that research shows that common side-effects of solitary con­finement include anxiety, panic, withdrawal, hallucina­tions, self-mutilation, and suicidal thoughts and behav­iors. In fact, the United Nations’ Special Rapporteur on Torture and other Cruel, Degrading and Inhumane Treatment issued a report stating that 22 or 23 hours a day alone in a prison cell for more than 15 days at a time can cause permanent, lasting psychological damage and can constitute torture.

One would think that given the serious stakes, courts would give careful consideration to who should be sentenced to solitary confinement, but it is actually prison officials, not the courts who decide when a prisoner should be secluded. That decision is often made arbitrarily or vindictively. Corrections officials justify the use of solitary confinement as supposedly necessary to protect prisoners and guards from violent prisoners, but instead, frequently it is imposed on individuals, particularly prisoners of color, who are “threatening” to the prison administration by being strong self-advocates, civil rights activists, jailhouse lawyers, or jailhouse doctors.

Justice Kennedy concluded his recent decision by proclaiming, “Over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons’. . . There is truth to this in our own time.” We commend Justice Kennedy for raising this issue. By Dostoyevsky’s measure, our society is downright barbaric.

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