Is Solitary Confinement Unconstitutional?

Eighth Amendment jurisprudence should reflect our understanding of human psychology

Alcatraz Prison, San Francisco, CA (Unsplash, 2021)

“I found solitary confinement the most forbidding aspect of prison life. There is no end and no beginning; there is only one’s mind, which can begin to play tricks. Was that a dream or did it really happen? One begins to question everything.” This quote is from Nelson Mandela’s autobiography The Long Walk to Freedom and is a perfectly haunting description of the horrors of solitary confinement. As of 2020, Special Procedures experts for the United Nations have called for a global ban of the practice of prolonged solitary confinement, specifically citing concerns about practices in the United States. Solitary confinement is the housing of an adult or juvenile with minimal to rare meaningful contact with other individuals. The UN Standard Minimum Rules for the Treatment of Prisoners–also known as “the Nelson Mandela Rules”–prohibits “prolonged” solitary confinement, which is defined as “solitary confinement for a time period in excess of 15 consecutive days.” After this point, the harmful psychological effects of isolation may be irreversible. A decadeslong debate has ensued on whether solitary confinement is constitutional under the Eighth Amendment, which prohibits cruel and unusual punishment. 

Social interaction is indeed a basic human need–alongside food, water, and sanitation. A litany of studies have tracked the cognitive decline and manic depressive episodes that prisoners subjected to solitary confinement can face. Moreover, people with preexisting mental health needs face solitary confinement at a disproportionately high rate with respect to the general population. Although one can live two weeks without talking, but scarcely without eating, the dangerous cumulative effects of solitary confinement should indeed qualify it as cruel and unusual punishment.

Solitary Confinement and the Eighth Amendment 

The legal precedent with regards to the Eighth Amendment prohibition on cruel and unusual punishment has shifted before. One notable example is Penry v. Lynaugh (1989), when the Supreme Court held that the burden of capital punishment on individuals with intellectual disabilities did not violate the Eighth Amendment. But the Court overruled Penry thirteen years later in Atkins v. Virginia (2002), finding that social norms had evolved to such a point that death sentences for the intellectually disabled were unambiguously unconstitutional.

 Similar consideration should be made for solitary confinement. Specifically,  it has been argued that solitary confinement should be deemed cruel and usual punishment in violation of the Eighth Amendment when: “(1) it is inflicted on a person particularly vulnerable to that confinement, (2) for a period in excess of fifteen days, and (3) it is not necessary to protect that person from intentional physical harm inflicted by others.”

Over the years, the Supreme Court has developed two approaches for evaluating the confines of cruel and unusual punishment. The first approach generally evaluates whether the punishment in question is proportional to the severity of the crime committed. Thus, a punishment is cruel and unusual when the length of severity is substantially disproportionate  to the crime. According to Weems v. United States (1910), such discernment must be made with consideration of the “evolving standard of decency that marks the progress of a maturing society.” This basically means that the standards for evaluating cruel and unusual punishment claims will need to be reevaluated over time because of the ever changing social norms in a modern society. The second approach generally applies to the treatment of people in prison; specifically, whether their punishment involves an “unnecessary and wanton infliction of pain”. The unnecessary infliction of pain standard is described in Gregg v. Georgia (1976) and the overarching criterion for evaluating this standard also applies to the changing standards of a maturing society. However, solitary confinement is not per se cruel and unusual punishment. Instead, it becomes cruel and unusual when its conditions are comparable to an unnecessary infliction of pain under the aforementioned criteria set by the Court. Historically, the Court has adopted a narrow set of interpretations and applications of the previously mentioned standards in relation to solitary confinement. 

The Supreme Court has established that only “extreme deprivations”–meaning, serious enough to deny minimal life sustaining necessities–are enough to constitute an Eighth Amendment claim. A noteworthy case that reflects this trend is Madrid v. Gomez (1995), wherein the federal district court found that placing mentally disabled individuals in solitary confinement is unconstitutional, citing that mental health issues render individuals more susceptible to the negative effects of extreme isolation. However, the Court reinforced their distinction between psychological and physical pain in this holding, and for many inmates with no history of mental illness, it does not appear that the degree of mental injury they face is enough to be an Eighth Amendment standard. Cases like Madrid represent a significant step in the right direction for solitary conditions jurisprudence. However, this case simultaneously confirms that Courts are a long way away from viewing psychological injury as serious a threat as physical injury among the neurotypical prison population.

Mental Health

By qualitatively differentiating the risks of solitary confinement for mentally ill inmates from the generalized risk of psychological harm that is accrued through solitary confinement, courts have failed to recognize that solitary confinement innately involves dangerous psychological risks. These risks are especially dangerous for people who are forced into isolation in impoverished environments. Such failure has manifested a substantial underestimation of the devastating mental effects that extreme isolation can precipitate in any individual. 

Lower courts have only rarely recognized grave mental harm in the conditions of confinement, and the Supreme Court has never done so. However misguided, courts have generally been unwilling to recognize that the mental harm that extreme isolation causes is per se sufficient to comprise an Eighth Amendment violation. There are at least two main interrelated reasons for the courts’ neglect of the generalized mental suffering due to solitary confinement. The first concerns a tendency to discount social interaction as a basic human need. As noted, courts tend to interpret the “deprivation of basic human needs” requirement in terms of identifiable physical needs, such as water, food, or sanitation. Only on a few exceptional occasions have lower courts recognized social interaction as a basic human need. The second consequential reason for the neglect is that although the lack of social interaction results in serious harm, “that harm is mental, not physical.” U.S. law views mental harm and mental pain as somewhat of a “a second-class citizen” compared to physical harm and pain. In principle, U.S. law has endorsed a “dualistic presumption” of harm and pain, which views physical and mental harm and pain as qualitatively and hierarchically different types of suffering—the former being more objective, tangible, and serious than the latter. 

Social Neuroscience

Recently, some avenues have opened to challenge solitary confinement under the Eighth Amendment. Such avenues have built on insights from social neuroscience regarding brain plasticity, social interaction, and environmental stimulation, as well as on the effects of social and environmental deprivation on brain function and health. These findings have already entered courtrooms in several lawsuits to provide a holistic analysis of the impact of solitary confinement, and they provide additional foundational evidence of the harms of extreme isolation that could provide a new level of support for Eighth Amendment claims. A key takeaway from social neuroscience is that the psychological deteriorations following social and environmental deprivation are linked to physical brain alterations. These alterations have far reaching implications–beyond immediately distinct behaviors– and can lead to a wide range of detrimental and long lasting psychological effects. Neuroscientific evidence can offer new support for challenges to solitary confinement under current constitutional standards. 

There are three main neuroscience based challenges to solitary confinement: social interaction is a basic physical need, social and environmental deprivation causes severe traumatic alterations in the brain, and that social pain induced by isolation is inherently physical because it has an organic basis in the brain. These concepts can, in part, be explained by renowned psychologists Baumeister and Leary’s Belongingness Hypothesis, which suggests “belongingness” is an innate quality that has strong effects on emotion and cognitive processes, and that this need is satisfied by frequent meaningful human contact. Consequently, Psychiatrist Stuart Grassian has performed many clinical observational studies in which he found that there are three main features of the psychological effects of solitary confinement: (1) hallucinations and perceptual distortions; (2) anxiety and panic attacks; and (3) obsessive, intrusive thoughts that are usually coupled with compulsive behaviors. Additionally, Grassian notes that there are also dehumanizing effects to being socially isolated, such as a lack of a sense of belonging and self-identity. Finally, electroencephalography (EEG) studies have revealed that just a few days in solitary confinement may evoke the same brain altering waves that arise from a physical injury. This evidence clearly displays the interrelation between the brain’s cognitive processes and the social environment, and importantly, the bidirectional relationship between the former and an environment that is consistent with the Court’s unnecessary infliction of pain standard. 

In Closing

The vast neuroscientific evidence of the damaging and irreversible effects of solitary confinement prove that social interaction is indeed a basic human need. Following the Court’s own evolving decency standard, our society has progressed to the point where mental injury is comparable to physical injury. Now, legal jurisprudence must catch up with our maturing society. It appears that we have reached a point where solitary confinement as an Eighth Amendment violation is almost indisputable.