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Fourth Circuit Finds 20 Years in Solitary an Atypical and Significant Hardship

On July 1, 2015, the Fourth Circuit Court of Appeals found the “20-year period of solitary confinement” endured by a South Carolina prisoner “amounts to an atypical and significant hardship in relation to the general population and implicates a liberty interest in avoiding security detention.” It also found a triable issue as to whether the prison system’s review process meets minimum due process requirements.

Prisoner Lumumba K. Incumaa is a member of the Nation of Gods and Earth (NOGE), a group whose adherents are also known as “Five Percenters.” Incumaa, who had been serving a life sentence since 1988, participated in a 1995 prison riot with other Five Percenters. Despite not committing a single disciplinary infraction over the next two decades, he remained in solitary confinement.

Under South Carolina Department of Corrections (SC DOC) policy, Incumaa’s status is reviewed every 30 days. To be released from security detention in the Special Management Unit (SMU), he must 1) renounce his affiliation with NOGE, 2) improve his behavior level or 3) the SC DOC has to remove the NOGE from its Security Threat Group list.

Incumaa first argued the renunciation policy imposed a substantial burden on his religious exercise in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Fourth Circuit found the facts of the case indicated renunciation of his faith was not a prerequisite to returning to general population, as other options were available.

The second issue raised by Incumaa alleged a denial of his procedural due process rights. The resolution of that claim entailed a two-step process. First, it had to be determined if Incumaa had a protectable liberty interest in avoiding SMU placement, which requires a finding that the confinement conditions imposed an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

The “conditions dictated by a prisoner’s conviction and sentence ... are the conditions constituting the ‘ordinary incident of prison life’ for that prisoner,” the Court of Appeals held. “Although the general prison population is not the relevant atypicality baseline in all cases, it is the touchstone in cases where the inmate asserting a liberty interest was sentenced to confinement in the general population and later transferred to security detention.”

The Fourth Circuit found the district court had misapplied the law in deciding whether atypicality existed in this case. It held that SMU conditions experienced by Incumaa mirrored, and may be worse in some respects, than those alleged in Cutter v. Wilkinson, 544 U.S. 709 (2005).

Additionally, unlike the district court, the Court of Appeals considered Incumaa’s “exceptional 20-year stint in highly restrictive solitary confinement,” and found the lower court had “wrongly concluded that [Incumaa’s] stay in SMU, although not limited to a number of days, was not ‘indefinite’ because [he] could secure release by renouncing his affiliation with the Five Percenters.”

“Because Appellant has already been held in solitary confinement for 20 years,” the Court stated, “he has a significant private interest in leaving the restrictive conditions in the SMU and serving some part of his remaining life sentence outside of solitary confinement.”

Having found that Incumaa demonstrated a liberty interest in avoiding prolonged solitary confinement, the appellate court turned to the review of his ongoing SMU placement. It held that the SC DOC’s review process was lacking, as it had only a single-layered confinement review. The Institutional Classification Committee (ICC), which makes decisions as to continued housing in the SMU, is not required to furnish a factual basis for its decisions.

Further, the ICC’s ongoing classification reviews related to Incumaa were found “especially wanting for explanation in light of his nearly perfect disciplinary record while in security detention,” the Fourth Circuit wrote. Finally, SC DOC regulations did not allow Incumaa to contest the factual basis for his SMU placement before a decision was made by the ICC.

The district court’s order was affirmed in part with respect to the RLUIPA claim, and reversed as to Incumaa’s procedural due process claim. The case remains pending on remand. See: Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015). 

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Related legal cases

Incumaa v. Stirling

Cutter v. Wilkinson