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Justice Sotomayor Slams Solitary Confinement, but Supreme Court Declines to Accept Colorado Solitary Case

by Derek Gilna

The U.S. Supreme Court receives thousands of petitions for writ of certiorari from federal appellate rulings each term and denies the vast majority of those applications, generally with a one-sentence rejection.

However, the Court’s October 9, 2018 order denying the petitions of Colorado state prisoners Jonathan Apodaca, Donnie Lowe and Joshua Vigil, who challenged the Colorado DOC’s solitary confinement practices, was accompanied by a withering concurrence by Justice Sonia Sotomayor.

“A punishment need not leave scars to be cruel and unusual...,” Justice Sotomayor wrote, adding, “Courts and corrections officials must accordingly remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world ... in what comes perilously close to a penal tomb.” (citation omitted).

The consolidated cases arose from a now-discontinued practice in the Colorado DOC where prisoners held in solitary confinement were allowed just one hour of exercise a day, five days a week in a 90-square-foot room containing only a chin-up bar. That constituted their entire out-of-cell recreation for periods ranging from 11 to 25 months.

Apodaca, Vigil and Lowe filed suit in federal court under 42 U.S.C. § 1983, arguing that the deprivation of outside or meaningful exercise violated their rights under the Eighth Amendment to be free from cruel and unusual punishment. The district court denied the state’s motion to dismiss but the Tenth Circuit reversed, prompting the plaintiffs to seek review by the Supreme Court. [See: PLN, March 2018, p.26].

In her statement, Justice Sotomayor expressed concerns about the use of solitary confinement, noting that such concerns had been raised by the Court “as far back as 1890,” yet she concurred in the denial of the petition for writ of certiorari due to “arguments unmade and facts underdeveloped below....”

“[W]hat is clear all the same,” Justice Sotomayor concluded, “is that to deprive a prisoner of any outdoor exercise for an extended period of time in the absence of an especially strong basis for doing so is deeply troubling – and has been recognized as such for many years.”

Since the plaintiffs’ certiorari petition was denied, the Tenth Circuit’s ruling stands. See: Apodaca v. Raemisch, 586 U.S. ___, U.S. Supreme Court, Case No. 17-1284/17-1289 (October 9, 2018). 

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Related legal case

Apodaca v. Raemisch