Solitary Confinement: on the Eve of Wider Sea Change
By: Anna Critz
“The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.” –President Barack Obama
Just last week, President Barack Obama announced in an opinion piece in the Washington Post that he had chosen to adopt certain new reforms regarding the use of solitary confinement in the federal prison system. Among those reforms are “banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.” In the op-ed defending his course of action, the president cited specifically the negative psychological effects of solitary confinement on prisoners and how its use undermines the critical goal of prisoner to society re-entry. While this is only one step, it may be indicative of a larger trend—that is, we may be on the brink of wider sea change on the important civil rights issue of the use of solitary confinement in prison settings.
Solitary confinement refers to the practice in which prisoners are held in separate units away from the rest of the general population of the prison. Solitary confinement inmates are most often held in small, Spartan cells for twenty-three hours per day with one hour for exercise. Human interaction is limited to meals pushed through an opening in the door. When the prisoners are fortunate enough to have windows in their cells, those windows look out at nothing “but more prison.” When the prisoners are removed from their cells for something special (a meeting with their attorneys for instance), they are marched passed other inmates who are often told to face the wall and not interact with the solitary confinement prisoners. It is truly extreme isolation.
And it is a controversial practice. Studies have shown that prisoners in solitary confinement experience terrible mental health outcomes, that they develop a host of different conditions from depression to anxiety to extreme paranoia and obsessive thoughts and behaviors. While solitary confinement inmates make up only 5 percent of the total number of people incarcerated, they account for 50 percent of all prison suicides. Critics of the practice call it a “grave human rights abuse” that has already been denounced in many countries and laud President Obama for the steps he has taken to restrain the practice in recent weeks. Others, like Norman Seabrook, the head of New York City’s Correction Officers’ Benevolent Association, disagree with the president’s measures. Mr. Seabrook sees solitary confinement as a necessary tool to maintain order in the American prison system, a stick for those whom normal carrots and sticks do not incentivize and argues the president’s reforms ignore the daily circumstances of life as a correction officer. 
Solitary confinement is currently constitutional in the United States. Some inroads to curb it have been made, however. For instance in 2015, California solitary confinement plaintiffs settled a monumental class action suit in that state, resulting in immediate changes to the state’s use and review policies for solitary confinement. Now, with this recent step from the executive branch to restrict the practice, solitary confinement may very well be the next frontier in civil rights litigation. One need only look to Justice Kennedy’s concurrence in the 2015 opinion of Davis v. Ayala to find the Supreme Court might be willing to lead a larger sea change when it comes to the practice. Justice Kennedy veered from the issue of the case to discuss the severe conditions that the respondent likely faced as a solitary confinement prisoner of more than twenty years. In his concurrence, he noted the long history of scholarship surrounding the link between solitary confinement and mental illness, recognized that “[y]ears on end of near-total isolation exact a terrible price,” and quoted Dostoyevsky in finding that a society might be judged by the state of its prisons. Justice Kennedy’s words are significant: the court may be willing to hear an Eighth Amendment solitary confinement challenge soon.
 Barack Obama, Barack Obama: Why we must rethink solitary confinement, Wash. 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.
 See Jason M. Breslow, What Does Solitary Confinement Do To Your Mind, PBS.org, (Apr. 22, 2014), http://www.pbs.org/wgbh/frontline/article/what-does-solitary-confinement-do-to-your-mind/.
 Editorial Board, Obama is right to reduce the use of solitary confinement, Wash. Post, (Jan. 25, 2016), https://www.washingtonpost.com/opinions/obama-is-right-to-reduce-the-use-of-solitary-confinement/2016/01/25/db5aea3c-c3b6-11e5-9693-933a4d31bcc8_story.html.
 See Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016), http://www.theguardian.com/commentisfree/2016/jan/26/solitary-confinement-prison-york-correctional-institution-barack-obama-reduce.
 See Torture: The Use of Solitary Confinement in Prisons, Center for Constitutional Rights, (May 31, 2012), https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/torture-use-solitary-confinement-us-prisons; Jason M. Breslow, What Does Solitary Confinement Do To Your Mind, PBS.org, (Apr. 22, 2014), http://www.pbs.org/wgbh/frontline/article/what-does-solitary-confinement-do-to-your-mind/.
 Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016), http://www.theguardian.com/commentisfree/2016/jan/26/solitary-confinement-prison-york-correctional-institution-barack-obama-reduce.
 John D. Sutter, Obama is right: No kid should be in solitary confinement, CNN, (Updated Jan. 26, 2016), http://www.cnn.com/2016/01/26/opinions/sutter-solitary-confinement-obama-update/.
 Norman Seabrook, Obama is wrong on solitary confinement, USA Today, (Feb. 7, 2016), http://www.usatoday.com/story/opinion/2016/02/04/obama–wrong-solitary-confinement-column/79649416/.
 See e.g., Beard v. Banks, 548 U.S. 521 (2006); Sandin v. Conner, 515 U.S. 472 (1995).
 See Ashker v. Governor of California, Center for Constitutional Rights, https://ccrjustice.org/home/what-we-do/our-cases/ashker-v-brown; see also Summary of Ashker v. Governor of California Settlement Terms, (Sept. 1, 2015), https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf.
 Davis v. Ayala, 135 S. Ct. 2187, 2208 reh’g denied, 136 S. Ct. 14, (2015) (Kennedy, J., concurring).
 Id. at 2209-10.