Skip navigation

Journal of Const Law Prolonged Solitary Confinement and the Constitution 2008

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.

Jules Lobel


A disturbing trend in the American prison system is the increasing
use of prolonged and even permanent forms of harsh solitary confinement in what are known as supermax prisons to incarcerate those
prisoners the government considers dangerous. The recent prestigious Commission on Safety and Abuse in America’s Prisons, chaired
by former Chief Judge of the Third Circuit John J. Gibbons and former Attorney General Nicholas de B. Katzenbach, reported that on
June 30, 2000, approximately 80,000 people were confined in state or
federal segregation units, and that between 1995 and 2000, “the
growth rate in the number of prisoners housed in segregation far
outpaced the growth rate of the overall prison population.” As of
2006, there were at least fifty-seven supermax prisons in forty states
that housed approximately 20,000 prisoners.
Many of those prisoners are held for long periods of time in solitary confinement. Indeed, in many state systems and in the federal
system there are some prisoners who have been effectively sentenced
to harsh forms of solitary confinement for the rest of their lives. In
Ohio, for example, the state designated a group of prisoners held in
the Ohio supermax prison as “long-termers” who prison officials




Professor, University of Pittsburgh School of Law. I want to thank my Research Assistants
Lisl Brunner and Emily Town for their excellent research help on this Article and the
University of Pittsburgh School of Law Document Technology Center for their assistance
in preparing this Article. I was co-counsel for the plaintiffs in the case of Austin v. Wilkinson discussed in this Article and argued that case in the United States Supreme Court. I
want to thank my co-counsel in that case, Staughton and Alice Lynd, without whose work
and efforts that case could never have been brought or successfully litigated, for their
helpful comments on this Article.
fronting_confinement.pdf; see also Kevin Johnson, Commission Warns of Harm Isolation Can
Do to Prisoners: Use of Solitary Confinement Rises, USA TODAY, June 8, 2006, at 14A.
See Daniel P. Mears & Jamie Watson, Towards a Fair and Balanced Assessment of Supermax
Prisons, 23 JUST. Q. 232, 232–33 (2006).




[Vol. 11:1

never intend to release from 23-hour-a-day solitary confinement.
The federal government has been sending prisoners convicted of serious terrorist crimes to the federal supermax prison in Florence,
Colorado, where they are condemned to live their lives in virtually to4
tal solitary confinement. These prisoners almost never see other
prisoners or converse with anyone else, and only rarely leave their
small cells. Absent judicial intervention, this group of prisoners will
never have any meaningful review of their solitary confinement.
These prisoners are living in what Robert Hood, the former Warden at the federal supermax in Florence, recently described to CBS
60 Minutes as a “clean version of hell.” While prisoners held for very
long periods of time in supermax prisons are not generally physically
abused, conditions of prolonged solitary confinement have long been
known to cause serious mental harm. Tommy Silverstein, who has
been in virtually total isolation for almost twenty-five years in federal
prison, described his confinement as being like an “endless toothache,” or a “slow constant peeling of the skin, stripping of the flesh,
the nerve-wracking sound of water dripping from a leaky faucet in the
still of the night while you’re trying to sleep. Drip, drip, drip, the
minutes, hours, days, weeks, months, years, constantly drip away with
no end or relief in sight.”
This Article will address whether this increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not
only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the





Dan Eggen, New Home Is ‘Alcatraz of the Rockies’: Moussaoui to Join Many High-Profile Inmates
at Federal Prison in Colorado, WASH. POST, May 5, 2006, at A6; see also Jim Hughes, The Feds
Plan to Make the Supermax Facility in Florence the Nation’s Premier Prison for Terrorists ‘Alcatraz
of the Rockies,’ DENVER POST, Aug. 3, 2003, at A1 (explaining that one-third of the cells are
solitary); Greg B. Smith, Terror Sheik Shifted to Supermax Prison, DAILY NEWS (New York),
May 19, 2002, at 6 (explaining the “special administrative measures” for incarcerating
some inmates, under which they can only speak to immediately family and lawyers, and
all conversations are monitored).
Niles Lathem, ‘Supermax’ for Worst of Worst, N.Y. POST, May 4, 2006, at 4.
60 Minutes: Supermax: A Clean Version of Hell (CBS television broadcast Oct. 14, 2007),
available at
Alan Prendergast, The Caged Life; Is Thomas Silverstein a Prisoner of His Own Deadly Past—or
the First in a New Wave of Locked-Down Lifers?, DENVER WESTWORD, Aug. 16, 2007.

Dec. 2008]



U.S. Supreme Court has noted, international jurisprudence can be
helpful in determining the scope and meaning of broad terms in our
Constitution such as “cruel and unusual punishments” or “due proc9
ess,” as those terms ought to be understood in the context of what
has been deemed unacceptable by the world community. This practice of long-term solitary confinement constitutes cruel and unusual
punishment and violates the due process rights of prisoners, yet the
unfortunate trend in the United States has been to downplay and ignore the cruel and inhuman effects of psychological abuse to prisoners where there is no long-term physical injury.
The federal courts have not yet definitively addressed the question
of whether confining a prisoner permanently or for very long periods
of time in a supermax prison, without meaningful periodic review of
his or her behavior, constitutes cruel and unusual punishment.
Nonetheless, the practice of confining prisoners to a permanent existence of severe isolation clearly implicates the Eighth Amendment.
As the Supreme Court declared in 1978, “[c]onfinement in . . . an
isolation cell is a form of punishment subject to scrutiny under
Eighth Amendment standards.”
Numerous psychological studies of prolonged solitary confinement detail the serious psychological harm to prisoners of such isola12
As one recent comprehensive survey of the psychiatric research on solitary confinement concludes, “Solitary confinement can
have serious psychological, psychiatric, and sometime physiological
effects on many prison inmates. A long list of possible symptoms
from insomnia and confusion to hallucinations and outright insanity



U.S. CONST. amend. VIII.
U.S. CONST. amend. V; U.S. CONST. amend. XIV, § 1.
See Roper v. Simmons, 543 U.S. 551, 578 (2005) (“It is proper that we acknowledge the
overwhelming weight of international opinion against the juvenile death penalty . . . . The
opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” (citations omitted)).
Hutto v. Finney, 437 U.S. 678, 685 (1978).
E.g., HANS TOCH, MEN IN CRISIS: HUMAN BREAKDOWNS IN PRISONS 54 (1975); Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY 1450, 1451–54
(1983); Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement,
49 CRIME & DELINQ. 124 (2003).



[Vol. 11:1


has been documented.” Mental health experts conclude that “[n]o
study of the effects of solitary or supermax-like confinement that
lasted longer than 60 days failed to find evidence of negative psycho14
logical effects.”
Indeed, nineteenth century state experiences with isolating prisoners in solitary confinement cells led observers to reach the same
conclusions as modern researchers. Pennsylvania prison models, first
developed in Philadelphia in the Cherry Hill State Prison, focused on
isolating prisoners in solitary cells. Charles Dickens visited the Cherry
Hill prison in 1842 and reported that:
I believe that very few men are capable of estimating the immense
amount of torture and agony which this dreadful punishment, prolonged
for years, inflicts upon the sufferers . . . there is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and
which no man has a right to inflict upon his fellow-creature. I hold this
slow and daily tampering with the mysteries of the brain, to be immeas15
urably worse than any torture of the body . . . .

Danish fairy tale author Hans Christian Andersen reported that a
similar Pennsylvania-model prison in Sweden, which used solitary
confinement, was “a well-built machine—a nightmare for the spirit.”
And the well-known sociologist Alexis de Tocqueville and his colleague Gustav Beaumont observed that a similar form of solitary confinement tried in Auburn, New York, “proved fatal for the majority of
prisoners. It devours the victim incessantly and unmercifully; it does
not reform, it kills. The unfortunate creatures submitted to this ex17
periment wasted away . . . .”
Numerous states adopted the Pennsylvania system of solitary confinement during the nineteenth century, only to abandon the practice because of its harmful effects on prisoners. In 1890, the U.S. Su-



Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and
Review of the Literature, 34 CRIME & JUST. 441, 502 (2006).
Brief for Professors & Practitioners of Psychology & Psychiatry as Amici Curiae Supporting Respondent at 4, Wilkinson v. Austin (Austin V), 545 U.S. 209 (2005) (No. 04-495).
“The overall consistency of these findings—the same or similar conclusions reached by
different researchers examining different facilities, in different parts of the world, in different decades, using different research methods—is striking.” Id. at 22.
CHARLES DICKENS, AMERICAN NOTES 146 (Fromm Int’l 1985) (1842).
HANS CHRISTIAN ANDERSEN, PICTURES OF SWEDEN 27 (Tutis Digital Publ’g 2007) (1851);
see also Smith, supra note 13, at 460 (quoting same).
ETATS-UNIS ET DE SON APPLICATION EN FRANCE (1833)). For an alternate English

Dec. 2008]



preme Court summarized almost a hundred years of experience with
solitary confinement:
A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible
to arouse them, and others became violently insane, others, still, committed suicide, while those who stood the ordeal better were not generally
reformed, and in most cases did not recover sufficient mental activity to
be of any subsequent service to the community.

More recently, various federal courts have recognized the substantial adverse mental health effects of solitary confinement. The Seventh Circuit noted that “there is plenty of medical and psychological
literature concerning the ill effects of solitary confinement,” and
concluded that in the case before the court, “the record shows, what
anyway seems pretty obvious, that isolating a human being from other
human beings year after year or even month after month can cause
substantial psychological damage, even if the isolation is not total.”
So too, a district court hearing a case challenging conditions at the
Security Housing Unit of Pelican Bay State Prison, California, recognized that social science and clinical literature have consistently reported that humans subjected to social isolation may develop serious
psychiatric disturbances.
District Court Chief Judge Henderson
toured the prison and observed that “some inmates spend the time
simply pacing around the edges of the pen; the image created is
hauntingly similar to that of caged felines pacing in a zoo.”
Despite this extensive historical evidence, social science and clinical research, and empirical and “obvious” observations that prolonged solitary confinement causes substantial psychological harm to
a significant percentage of prisoners exposed to such conditions, the
federal courts have, with some exceptions, not found that solitary


In re Medley, 134 U.S. 160, 168 (1890).
Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988), cert. denied, 488 U.S. 908
Id. at 1313.
Madrid v. Gomez, 889 F. Supp. 1146, 1230–32 (N.D. Cal. 1995).
Id. at 1229.
In Ruiz v. Johnson, 37 F. Supp. 2d 855, 914–15 (S.D. Tex. 1999), rev’d sub nom. in part on
other grounds, Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001), the Court found that a
“systemic pattern of extreme social isolation and reduced environmental stimulation” in
the most restrictive levels of administrative segregation in the Texas prison system was
“the cause of cruel and unusual pain and suffering by inmates,” and thus violated the
Constitution. See also Ruiz v. Johnson, 154 F. Supp. 2d 975 (S.D. Tex. 2001). The Ruiz
case was eventually settled.



[Vol. 11:1


confinement violates the Eighth Amendment. For example, in the
leading case of Madrid v. Gomez, the court found that:
the record demonstrates that the conditions of extreme social isolation
and reduced environmental stimulation found in the Pelican Bay [Security Housing Unit] will likely inflict some degree of psychological trauma
upon most inmates confined there for more than brief periods. Clearly,
this impact is not to be trivialized; however, for many inmates, it does not
appear that the degree of mental injury suffered significantly exceeds the
kind of generalized psychological pain that courts have found compatible
with Eighth Amendment standards.

The Court nonetheless held that while there was a risk of serious psychological injury to inmates, that risk was not of “sufficiently serious
magnitude” to find a “per se” violation of the Eighth Amendment for
all prisoners placed in long-term solitary confinement. The Court
did find that it would violate the Eighth Amendment to subject prisoners who already had serious mental illnesses to prolonged solitary
confinement, because such prolonged social isolation was very likely
to inflict serious psychological pain on that subclass of prisoners. The
Madrid court’s distinction between prisoners who already had serious
mental illness and the general prison population has been followed
in other cases.
Nonetheless, while cases have permitted prolonged solitary confinement in very restrictive supermax conditions, none have addressed Eighth Amendment claims of the subcategory of prisoners
who have been in essence relegated to such confinement on a permanent or virtually permanent basis. Several recent Supreme Court
decisions suggest that claims by prisoners confined in a supermax
permanently ought be accorded different Eighth Amendment scru28
In Overton v. Bazzetta, the Court rejected a challenge to a




See Brown v. Nix, 33 F.3d 951, 954–55 (8th Cir. 1994); Fleming v. Neb. Dep’t of Corr.
Servs., No. 4:03CV3307, 2006 U.S. Dist. LEXIS 76256 (D. Neb. Oct. 18, 2006); Madrid v.
Gomez, 889 F. Supp. 1146, 1260–66 (N.D. Cal. 1995).
889 F. Supp. at 1265.
Id. (emphasis omitted in first quote).
Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) (placing seriously mentally ill
prisoners in Wisconsin supermax violates the Eighth Amendment); Austin v. Wilkinson,
No. 4:01-CV-071, Doc. 134 at *27 (N.D. Ohio Nov. 21, 2001) (order granting preliminary
injunction) (noting that the defendants offered little opposition to a preliminary injunction prohibiting the placement of seriously mentally ill prisoners at the Ohio supermax);
Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (finding that prison conditions
can pose too great a threat to the psychological health of mentally ill inmates, violating
the Eighth Amendment).
E.g., Beard v. Banks, 548 U.S. 521, 536 (2006); Overton v. Bazzetta, 539 U.S. 126, 134

Dec. 2008]



Michigan prison regulation restricting visitation for inmates with
drug violations, in part because the restriction, while “severe,” was
only for a limited, generally two-year period. The Court noted, however, that “[i]f the withdrawal of all visitation privileges were permanent or for a much longer period . . . the case would present different
Similarly in Beard v. Banks, the Court affirmed
Pennsylvania’s prohibition on access to any newspapers, magazines or
personal photographs for prisoners housed at the most restrictive
level of its Long Term Segregation Unit, but repeated Overton’s admonition that if faced with a “de facto permanent ban . . . we might
well reach a different conclusion.” And one appellate court has
held that the federal government does not have the statutory authority to sentence a prisoner to supermax confinement for the rest of his
That a very lengthy or permanent supermax confinement should
raise different Eighth Amendment concerns would seem obvious.
The Supreme Court has long recognized that the “length of confinement cannot be ignored” in determining whether a particular re32
striction constitutes intolerably cruel and unusual punishment.


539 U.S. at 137.
548 U.S. at 536 (alteration in original).
United States v. Johnson, 223 F.3d 665, 673 (7th Cir. 2000) (holding that the purpose of
confinement is to maintain order in the prison and cannot be used for a prisoner who
poses no threat to those around him).
Hutto v. Finney, 437 U.S. 678, 686 (1978).
The Supreme Court’s Eighth Amendment jurisprudence holds that prison officials
vio-late the Eighth Amendment only when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the deprivation alleged must be objectively sufficiently serious, and second, the prison officials subjective state of mind must be one of
deliberate indif-ference to prisonerhealth or safety. Id. In the case of very prolonged or
permanent solitary confinement, the objective requirement should be met by the overwhelming opinion of social science research and practical experience that such confinement deprives a prisoner of an “identifiable human need such as food, warmth or exercise”—namely contact with other human beings—and causes prisoners significant
psychological pain. Wilson v. Seiter, 501 U.S. 294, 304 (1991) (articulating the identifiable human need standard). At least for purposes of injunctive relief, the subjective element would also be satisfied, because prisoners confined to very prolonged solitary confinement and suffering significant psychological pain could show at both the time of
bringing their lawsuit and at trial that the defendants knew of the psychological harm
they were suffering. See e.g. Helling v. McKinney, 509 U.S. 25, 36 (1993) (“for purposes of
injunctive relief ‘deliberate indifference’ should be determined in light of the prison authorities current attitudes and conduct”). As the Court noted in Brennan, “If, for example, the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack
of awareness . . . .” 511 U.S. at 846 n.9; see also Austin v. Hopper, 15 F. Supp. 2d 1210,
1262 (M.D. Ala. 1998) (noting that even if prison officials had been unaware of the risk of
substantial harm from the use of the whipping post, that would not foreclose a finding



[Vol. 11:1

Lower federal courts have generally looked to the duration of solitary
confinement to determine whether a particular confinement constitutes “an atypical and significant hardship” for Fourteenth Amend33
ment purposes. While prolonged periods of several years in supermax confinement certainly is severe and undoubtedly causes
significant psychological harm in many prisoners, to confine someone in such isolation for the rest of his or her life, or for very many
years seems extreme—akin to a death sentence for life. To deprive
someone of virtually all human contact for the rest of his or her life,
or very many years is to reach levels of inhumanity that ought to be
recognized as violative of the Eighth Amendment.
International law also supports the proposition that very lengthy,
virtually permanent conditions of harsh solitary confinement constitute either torture or cruel, inhuman, and degrading treatment. The
U.S. Supreme Court has increasingly looked to the experience of the
international community, particularly European countries, in determining the meaning of cruel and unusual punishment in modern so34
International human rights bodies agree that “[s]olitary confinement can, in certain circumstances, amount to inhuman and degrad-



that the plaintiffs had met both the subjective and objective requirements of their Eighth
Amendment challenge to the extent that the plaintiffs seek injunctive relief).
The real Eighth Amendment assessment of whether very prolonged or de facto permanent solitary confinement violates the Constitution is “whether society considers the
risk that the prisoner complains of to be so grave that it violates contemporary standards
of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36. While no
case has thus far addressed that question, to condemn a prisoner to a situation with virtually no meaningful contact with other humans for the rest of their life or for very many
years, is to strip the person of their humanity and to risk such serious psychological harm
to their personality that such a practice should be held to violate contemporary standards
of human decency.
Colon v. Howard, 215 F.3d 227, 231–32 (2d Cir. 2000) (finding 305 days in segregated
housing unit to be an atypical and significant hardship); Shoats v. Horn, 213 F.3d 140,
144 (3d Cir. 2000) (finding eight years in segregation atypical and significant); Hatch v.
District of Columbia, 184 F.3d 846, 858 (D.C. Cir. 1999) (ruling that on remand, court
should determine whether twenty-nine weeks of segregation is atypical); Keenan v. Hall,
83 F.3d 1083, 1087–89 (9th Cir. 1996) (considering length of segregation, which in that
case was one year); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) (finding
one year in solitary confinement atypical and significant); Herron v. Schriro, 11 F. App’x
659 (8th Cir. 2001) (upholding a judgment that segregation for more than thirteen years
is atypical and significant hardship).
Roper v. Simmons, 543 U.S. 551, 575 (2005) (“[A]t least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international
authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of
‘cruel and unusual punishments.’”).

Dec. 2008]




ing treatment,” especially when it is prolonged. According to the
Inter-American Court of Human Rights, “prolonged isolation and
coercive solitary confinement are, in themselves, cruel and inhuman
treatments, damaging to the person’s psychic and moral integrity and
the right to respect of the dignity inherent to the human person.”
Because of its potentially deleterious effect on prisoners’ mental and
physical health, the Committee Against Torture, the official body established pursuant to the Convention Against Torture (a treaty ratified by the United States and part of United States law), has recom38
mended that the practice be abolished altogether.
The Committee Against Torture recently reviewed the practices of
the United States in detaining prisoners and expressed concern
about the extremely harsh regime imposed on detainees in “supermaximum prisons.” Specifically, the Committee was concerned
about the prolonged isolation periods detainees are subjected to and





See Eur. Comm. for the Prevention of Torture & Inhuman or Degrading Treatment or
Punishment, 2nd General Report on the CPT’s Activities Covering the Period 1 January to 31 December 1991, CPT ANNUAL GENERAL REPORTS, CPT/Inf(1992) 3, at ¶ 56, available at; see also Eur. Comm. for the Prevention of
Torture & Inhuman or Degrading Treatment or Punishment (CPT), The CPT Standards:
“Substantive” Sections of the CPT’s General Reports, CPT ANNUAL GENERAL REPORTS,
CPT/Inf/E (2002) 1, Rev. 2006, at 20, available at
/eng-standards-prn.pdf [hereinafter The CPT Standards]; Ramirez Sanchez v. France, App.
No. 59450/00, 45 Eur. H.R. Rep. 49, ¶ 83 (2007).
U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article
19 of the Convention: Switzerland, ¶ 133, U.N. Doc. CAT/A/49/44 (Apr. 20, 1994); U.N.
Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of
the Convention: New Zealand, ¶ 5, U.N. Doc. CAT/C/CR/32/4 (May 19, 2004); U.N. Human Rights Comm., General Comment No. 20, ¶ 6, U.N. Doc. CCPR/A/47/40/1992, Annex
VI (1994). In its 1991 assessment of prisons in Spain, the ECPT found that subjecting a
prisoner to a “regime of isolation” with “little or nothing by way of activity” for “very long
periods” constitutes inhuman treatment. Eur. Comm. for the Prevention of Torture &
Inhuman or Degrading Treatment or Punishment, Report to the Spanish Government on the
Visit to Spain from 1 to 12 April 1991, CPT/Inf(1996) 9 [Part 1], ¶ 113, available at
Case of the Miguel Castro-Castro Prison v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 160, at
¶ 323 (Nov. 25, 2006); see also Velasquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No.
4, at 9 ¶ 156 (1988) (finding that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment”).
U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article
19 of the Convention: Denmark, ¶ 14, U.N. Doc. CAT/C/DNK/CO/5 (July 16, 2007); U.N.
Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of
the Convention: Luxembourg, ¶ 6, CAT/C/CR/28/2 (June 12, 2002); U.N. Comm. Against
Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention:
Norway, ¶ 156, U.N. Doc. CAT/A/53/44 (May 6, 1998); U.N. Comm. Against Torture,
Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Sweden,
¶ 225, U.N. Doc. CAT/A/52/44 (May 6, 1997).



[Vol. 11:1

the effect such treatment has on their mental health. The Committee recommended that “[t]he State party should review the regime
imposed on detainees in ‘supermaximum prisons,’ in particular the
practice of prolonged isolation.”
The duration of confinement is an important factor in international law’s assessment of solitary confinement. While a short period
of isolation will not be held to constitute inhuman or degrading
treatment, the former European Commission on Human Rights observed that “[i]t is generally acknowledged that all forms of solitary
confinement without appropriate mental and physical stimulation are
likely, in the long term, to have damaging effects, resulting in deteriora41
tion of mental faculties and social abilities.”
Indeed, while the European Court of Human Rights has upheld
lengthy periods of solitary confinement in extreme cases for prisoners such as one “considered one of the world’s most dangerous terrorists,” it has expressed concern “about the possible long term effects” of solitary confinement, “the particularly lengthy period” of
such confinement, and required that for lengthy confinement in solitary, “a rigorous examination is called for by the Court to determine
whether it was justified.” In the case of a convicted terrorist held in
solitary confinement for eight years until transferred to a normal
prison regime, the court upheld the prolonged solitary confinement
but nevertheless emphasized “that solitary confinement, even in cases
entailing only relative isolation, cannot be imposed on a prisoner in43
definitely.” Similarly, while the European Court of Human Rights
upheld Turkey’s detention of Abdullah Öcalan—the leader of the
Kurdistan Workers’ Party who had been convicted of responsibility in
the killings of thousands of people—for six years in solitary confinement on the remote prison Imrali Island, the court pointedly noted
that the detention had “thus far” not “reached the minimum level of




U.N. Comm. Against Torture, 36th Session, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Conclusions and Recommendations of the Committee
Against Torture: United States of America, CAT/C/USA/CO/2, at ¶ 36 (May 18, 2006),
available at
Thus, a military serviceman who was kept in solitary confinement for only ten days did
not suffer inhuman or degrading treatment, as the Human Rights Committee found the
punishment had no noticeable effect on his physical or mental state. Antti Vuolanne v.
Finland, U.N. Doc. CCPR/C/35/D/265/1987 ¶¶ 2.2, 9.2 (Feb. 5, 1989).
Koskinen v. Finland, 18 Eur. H.R. Rep. CD 146 ¶ 73 (1994) (emphasis added).
Ramirez Sanchez v. France, App. No. 59450/00, 45 Eur. H.R. Rep. 49, ¶¶ 125, 136, 150
Id. at ¶ 145.

Dec. 2008]



severity required to constitute inhuman or degrading treatment.”
Subsequently, the European Committee for the Prevention of Torture (CPT), an official organ of the Council of Europe, visited the
prison in May 2007 and found that eight and a half years of solitary
confinement had caused a marked deterioration of Öcalan’s mental
state and called upon the Turkish government to integrate him into a
setting—either on the island prison or at another prison—“where
contacts with other inmates and a wider range of activities are possi45
ble.” While the Öcalan case is unique, it illustrates that even in extraordinary situations, and even where the prisoner has some access
to the outside world, the European community recognizes that very
long-term, indefinite solitary confinement may constitute inhuman or
degrading treatment.
While very prolonged solitary confinement raises serious Eighth
Amendment concerns, the practice also implicates due process protections. A fundamental contradiction exists between the practice of
very long-term solitary confinement in supermax or other segregation
units in the United States and due process jurisprudence. The Supreme Court has held that prisoners confined in such segregation
must be accorded meaningful periodic review to ensure that segrega47
tion is not a “pretext for indefinite confinement.” When a prisoner
is placed in a supermax, the due process requirement of meaningful
periodic review requires that his or her behavior be re-evaluated at
regular intervals to determine whether supermax confinement is still
warranted. Yet the trend in prolonged supermax confinement is for
the federal or state government to simply designate certain prisoners
for essentially lifetime or very long solitary confinement. In such
cases, the due process requirement of periodic review becomes meaningless. While prison officials may still go through the formality of
providing review, the decision is predetermined, the review is a sham,



Öcalan v. Turkey, App. No. 46221/99, 41 Eur. H.R. Rep., 45 ¶ 196 (2005).
Eur. Comm. for the Prevention of Torture & Inhuman or Degrading Treatment or Punishment, Report to the Turkish Government on the Visit to Turkey, CPT/Inf (2008), ¶ 33.
For example, in the Ramirez Sanchez case, the prisoner had access to books, newspapers,
television, two hours of outdoor exercise, and one hour of indoor exercise per day, regular visits from lawyers, and no bar on family visits. Ramirez Sanchez, 45 Eur. H.R. Rep. at
¶¶ 128, 131.
Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983).



[Vol. 11:1

and there is nothing the prisoner can do to get out of solitary confinement. Such a review violates due process.
Due process requires a “meaningful hearing.”
A hearing in
which the outcome is predetermined is not “meaningful,” and there49
fore violates due process. Moreover, the opportunity to be heard, so
central to procedural due process, is rendered meaningless where the
state makes a decision without first hearing from the person affected
by its decision.
Various courts have held that prisoners are entitled to meaningful
periodic hearings when confined in long-term solitary confinement
and that those hearings must not be “simply perfunctory.” As one
court put it, “[d]ue process is not satisfied where the periodic reviews
are a sham . . . .” For example, in Sourbeer v. Robinson, the Third Circuit held that while “the monthly review procedures . . . were facially
adequate,” and those procedures were followed by prison officials,
the prisoner’s due process rights were nonetheless violated because
the reviews “were perfunctory, thus denying [the prisoner] the most
fundamental right of due process: a meaningful opportunity to be
Hewitt’s requirement of a meaningful periodic review presumes
that the reviewing entity considers whether the prisoner’s conduct
during the period since the most recent security review warrants re48




Leary v. Daeschner, 228 F.3d 729, 744 (6th Cir. 2000).
See Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 762 (7th Cir. 1999) (producing “evidence that the decision has already been made and any hearing would be a
sham” sets forth a procedural due process claim); Patrick v. Miller, 953 F.2d 1240, 1245
(10th Cir. 1992) (holding that due process requires an impartial tribunal that has not
predetermined facts); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (“[I]t is axiomatic that a prison disciplinary hearing in which the result is arbitrarily and adversely
predetermined violates [the right of due process].”); Wagner v. City of Memphis, 971 F.
Supp. 308, 319 (W.D. Tenn. 1997) (finding that the Mayor predetermined the hearing
and thus violated plaintiffs’ procedural due process rights).
See Hamby v. Neel, 368 F.3d 549, 562 (6th Cir. 2004) (finding that, because plaintiffs were
not permitted to demonstrate critical facts at the hearing, they were “denied a meaningful hearing”); Matthews v. Harney County Sch. Dist. No. 4, 819 F.2d 889, 893–94 (9th Cir.
1987) (finding that due process would be violated if plaintiff was not given adequate notice and an opportunity to be heard); Washington v. Kirksey, 811 F.2d 561, 564 (11th Cir.
1987) (“Due process of law does not allow the state to deprive an individual of property
where the state has gone through the mechanics of providing a hearing, but the hearing
is totally devoid of a meaningful opportunity to be heard.”).
McClary v. Kelly, 4 F. Supp. 2d 195, 212–13 (W.D.N.Y. 1998); see also, e.g., Sheley v. Dugger, 824 F.2d 1551, 1556 (11th Cir. 1987), vacated on other grounds, 833 F.2d 1420 (11th
Cir. 1987); Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986); Giano v. Kelly, 869
F. Supp. 143, 149–51 (W.D.N.Y. 1994).
McClary, 4 F. Supp. 2d at 213.
Sourbeer, 791 F.2d at 1101.

Dec. 2008]



classification. Consideration of behavior is an integral component of
a fair and meaningful hearing. For example, in Giano v. Kelly, the
court remarked that “there is no indication that [Warden] Kelly or
the Committee ever considered anything that occurred subsequent to
Giano’s placement [in solitary confinement].” The decisionmaker
must determine “if the reason for . . . confinement remains valid.”
Similarly, the Seventh Circuit has held that prison officials could not
constitutionally commit a prisoner to solitary confinement for life
and refuse to consider facts that might justify release from such con57
In Wilkinson v. Austin, the Supreme Court held that prisoners confined at the Ohio supermaximum prison had a due process right to a
statement of the reasons why they were placed or retained at the su58
permax, which would “serve[] as a guide for future behavior.” The
procedural requirement that prison officials provide the prisoner
with a statement of reasons as to why he is being retained in solitary
confinement implies that the officials must provide something more
than a general statement that the prisoner is very dangerous. The
statement of reasons must explain what the prisoner must do to work
their way out of solitary confinement. Otherwise, the statement
would not serve the function of providing the prisoner with a “guide
for future behavior.”
A recent district court decision in Austin v. Wilkinson, a class action
challenging the state’s practices at the Ohio supermax—the Ohio
State Penitentiary (“OSP”)—held that procedural due process requires prison officials to inform prisoners in their annual reviews as
to what they must do to be eligible to get out of supermax confine59
ment. At OSP, supermax prisoners face a stark regime of isolation
typical of most supermax prisons. As in most supermax prisons, prisoners are locked into small cells for twenty-three hours a day with
solid steel doors preventing almost all communication. At OSP,
prison officials welded metal strips along the sides and bottom of the
metal doors which further prevent conversation or communication
between prisoners. Prisoners have very limited privileges. They have

Giano v. Kelly, No. 89-CV-727(C), 2000 WL 876855 (W.D.N.Y. May 16, 2000).
Id. at *15.
Id. at *17.
United States v. Johnson, 223 F.3d 665, 673 (7th Cir. 2000).
545 U.S. 209, 226 (2005) (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 15 (1979)).
Austin v. Wilkinson (Austin IV), No. 4:01-CV-71, 2007 WL 2840352, at *6–7 (N.D. Ohio
Sept. 27, 2007).



[Vol. 11:1

no contact visits, no work opportunities other than to serve as porters,
and limited educational programs.
Austin v. Wilkinson has a lengthy history. In 2001, a class of plaintiffs brought a lawsuit claiming, inter alia, that their placement and retention at OSP violated procedural due process. The District Court
and Court of Appeals agreed. The Supreme Court, however, rendered a mixed verdict, affirming the lower courts’ holdings that a
prisoner’s placement at the supermax constituted an “atypical and
significant hardship” that gave rise to a liberty interest, but reading
Ohio’s new procedures, which it had adopted after the litigation was
instituted (in fact on the eve of trial), as providing the prisoners with
sufficient due process protections.
The Supreme Court’s decision did not, however, resolve the Austin case, which continued for almost three years after the Court’s decision was handed down. In the aftermath of the Court’s decision, it
turned out that Ohio was not following, nor was it prepared to follow,
the procedures that it had represented to the Supreme Court that it
would implement.
The District Court found that Ohio’s actual
practice was violating the Supreme Court’s decision as to what constituted adequate due process, and ordered Ohio to change its prac64
In addition, it became clear in the course of the litigation that
Ohio had determined that certain prisoners would be confined permanently at OSP in solitary confinement. The plaintiffs sought on
various occasions to have the District Court address this practice, by



For a description of the conditions at OSP supermax, see generally Austin v. Wilkinson
(Austin I), 189 F. Supp. 2d 719 (N.D. Ohio 2002). When OSP was constructed, it had no
outdoor recreation facilities; prisoners were allowed to recreate individually in another
cell down the hall which was almost identical to their own cell except that it had a pull-up
bar and narrow slats in the wall which allowed in some fresh air, which Ohio officials
termed “outdoor recreation.” Id. at 724. Plaintiffs challenged the recreation facilities as
violations of the Eighth Amendment, and as part of an overall settlement of the Eighth
Amendment claims, the state agreed to construct outdoor recreation facilities. Id. at 725,
n.6. Throughout the course of the litigation, the State has also made other modifications
to the conditions under which the supermax prisoners are held at OSP, which have improved conditions somewhat, even for those prisoners still held as long-termers. Most
importantly, after the District Court’s order went into effect, the State dramatically reduced the number of prisoners held in supermax conditions, and turned a significant
percentage of the prison into a maximum security, but not supermaximum facility.
See Austin I, 189 F. Supp. 2d at 719; Austin v. Wilkinson (Austin IV), 372 F.3d 346 (6th Cir.
Wilkinson, 545 U.S. 209.
Austin v. Wilkinson (Austin VI), 502 F. Supp. 2d 660 (N.D. Ohio 2006).

Dec. 2008]



way of either the Eighth Amendment, substantive due process, or
procedural due process. Finally, in September 2007, they succeeded
in getting the district court to address the procedural due process is65
sues. The district court issued an opinion finding that some prisoners were indeed being incarcerated at OSP on a permanent or semipermanent basis, and holding that Ohio officials had violated these
prisoners’ procedural due process rights by not considering their
positive behavior while at OSP and by not giving them notice of what
they could do to work their way out of OSP. The court held that the
prison officials’ notices to prisoners that the inmate’s prior “offense is
so severe that [he] should remain confined at the OSP for many years
regardless of [his] behavior while confined at the OSP” did not provide the inmate with “a reasoned decision . . . as to what [he] must do
to reduce [his classification status],” and get out of supermax con66
International law also requires a meaningful periodic review of a
prisoner’s long-term solitary confinement to consider the prisoner’s
behavior while in prison. The European Court of Human Rights recently held that:
[I]n order to avoid any risk of arbitrariness, substantive reasons must be
given when a protracted period of solitary confinement is extended. The
decision should thus make it possible to establish that the authorities
have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behaviour. The statement of reasons will
need to be increasingly detailed and compelling the more time goes by.

The Committee Against Torture, the European Court of Human
Rights, and the Inter-American Court of Human Rights have emphasized that solitary confinement should be “an exceptional measure of



Austin v. Wilkinson (Austin VII), No. 4:01-CV-71, 2007 WL 2840352, at *7 (N.D. Ohio
Sept. 27, 2007); see also Austin VI, 502 F. Supp. 2d at 673–74 (refusing to grant longtermers specific relief for alleged due process violations).
Austin VII, 2007 WL 2840352, at *7. Similarly, the Eighth Circuit has recently concluded
that a prisoner had a due process claim where he was held in solitary confinement for
over eight years and had been given review hearings, but the defendants had not shown
that they had given him meaningful hearings in which they considered his behavior and
demeanor while in segregation and had not simply given “undue weight” to his past conduct. Williams v. Norris, 277 F. App’x 647, 649–50 (8th Cir. 2008).
To the same general effect, a recent settlement of a class action case challenging aspects of the confinement of prisoners housed in solitary confinement in the Mississippi
State Penitentiary provided that the prison officials were required to implement a plan
whereby all non-death row prisoners in the unit may, “through good behavior and a stepdown system, earn their way to less restrictive housing.” Consent Decree at 4, Presley v.
Epps, No. 4:05CV 00148-MPM-JAD (N.D. Miss. Mar. 6, 2006).
Ramirez Sanchez v. France, App. No. 59450/00, 45 Eur. H.R. Rep. 49, ¶ 139 (2007) (emphasis added).



[Vol. 11:1

limited duration” that is subject to strict judicial review both when it
is applied and when it is prolonged. The European Court has held
that “it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a pro69
longed measure of solitary confinement.”
Similarly, the InterAmerican Commission on Human Rights has observed that the judicial guarantees enshrined in the American Convention on Human
Rights are “applicable to all types of proceedings,” including deci70
sions to place or retain prisoners in solitary confinement. So too,
the United Nations Human Rights Committee agrees that the right to
have a judge determine the lawfulness of one’s detention, embodied
in Article 9(4) of the International Covenant on Civil and Political
Rights, applies to all people who are deprived of liberty, and is applicable to the placement and retention of prisoners in solitary con72
Supermaximum security prisons that place inmates in solitary confinement for long periods of time without providing meaningful re-





See U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under
Article 19 of the Convention: Japan, ¶ 18, U.N. Doc. CAT/C/JPN/CO/1 (May 18, 2007);
U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article
19 of the Convention: Denmark, ¶ 14, U.N. Doc. CAT/C/DNK/CO/5 (May 14, 2007); U.N.
Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of
the Convention: France, ¶ 19, U.N. Doc. CAT/C/FRA/CO/3 (Nov. 24, 2005); U.N. Comm.
Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Luxembourg, ¶ 6, U.N. Doc. CAT/C/CR/28/2 (May 15, 2002); Comm. Against
Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention:
Denmark, ¶ 7, U.N. Doc. CAT/C/CR/28/1 (May 10, 2002); see also International Covenant on Civil and Political Rights, art. 10(2), 999 U.N.T.S. 171 (entered into force Mar.
23, 1976) [hereinafter ICCPR]; American Convention on Human Rights, art. 5(4), 1144
U.N.T.S. 123(1969); Ramirez Sanchez, 45 Eur. H.R. Rep. at ¶¶ 139, 145; Case of the Miguel
Castro-Castro Prison v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 160, at ¶ 323 (Nov. 25,
2006) (“[S]olitary confinement may only be used in an exceptional manner . . . .”); Case
of De La Cruz-Flores v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 115, at ¶ 127 (Nov. 18,
Ramirez Sanchez, 45 Eur. H.R. Rep. at ¶ 145.
Special Report on the Human Rights Situation at the Challapalca Prison, Department of Tacna,
Republic of Peru, Inter-Am. C.H.R., Report No. OEA/Ser.L/V/II.118, doc. 3 ¶¶ 70–71
(2003). The Commission found a violation of Article 8 when prison officials subjected
inmates to thirty days of solitary confinement without following any type of procedure or
allowing the prisoners to defend themselves. Id.
ICCPR, 999 U.N.T.S. 171 (“Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release if the detention is
not lawful.”).
U.N. High Comm’r for Human Rights, General Comment No. 8: Right to Liberty and Security
of Persons (Art. 9), ¶ 1, A/37/40 (1982). Antti Vuolanne v. Finland, U.N. Doc.
CCPR/C/35/D/265/1987 ¶ 9.6 (Feb. 5, 1989).

Dec. 2008]



view of their situations therefore violate international human rights
law according to the jurisprudence of the European Court, the InterAmerican Court and Commission, and the U.N. Human Rights
Committee and Committee Against Torture. That American supermax prisons impose solitary confinement as a normal, rather than an
“exceptional,” practice for thousands—not just a handful—of prisoners, and that the duration of confinement is often very lengthy, runs
counter to the core principles that international human rights law
has established governing the use of solitary confinement. Furthermore, when prison officials prolong an inmate’s solitary confinement
without providing him with written justification or reviewing his circumstances, situation, and behavior, or without affording him the
opportunity to appeal the decision to some judicial body, they have
violated his right to due process.
The justification that prison officials provide for the use of prolonged solitary confinement in the United States is the need for security. Prison officials claim that certain gang members or leaders,
prisoners who engage in violence against other prisoners, or terrorists
cannot be housed in less restrictive conditions because of the danger
they pose to other prisoners or prison personnel, or because they will
be in communication with their violent associates outside of prison.
Moreover, prison officials claim that the very restrictive conditions in
modern supermax prisons do not afford prisoners any opportunity to
misbehave, since they are essentially sitting alone in their cell for virtually the entire day and are under heavy restraints whenever they are
moved from their cell. Therefore, officials often claim that a prisoner’s good behavior with no misconduct for many years at the supermax does not support placing very dangerous prisoners in a less
restrictive environment because his good behavior is simply a reflection of the lack of opportunity to commit misconduct and not of any
change in the prisoner’s attitude. The prisoner therefore has no way
to demonstrate that he has changed and is no longer dangerous. His
good behavior at the supermax does not help him get out of solitary
confinement. This leads to the situation in the Ohio supermax and
other supermaxes in which some prisoners are being held in solitary


See, e.g., Wilkinson v. Austin (Austin V), 545 U.S. 209, 229 (2005) (“Prolonged confinement in Supermax may be the State’s only option for the control of some inmates . . . .”).



[Vol. 11:1

confinement indefinitely, irrespective of their behavior at the super74
There are three answers to this conundrum. The first is that
prison officials can develop mechanisms to gradually permit all prisoners housed in supermax confinement to have greater contact with
other prisoners in supervised conditions so as to afford them an opportunity to demonstrate that they can be moved to less restrictive
conditions. For example, at the Ohio supermax, prison officials constructed outdoor recreation facilities that permit small groups of
prisoners to recreate together (“congregate recreation”). These recreation units are closely observed by prison guards, so that it ought to
be possible for all the supermax prisoners to be afforded the opportunity to have congregate recreation in a secure environment and for
prison officials to determine if their behavior warrants a less restrictive placement. In response, prison officials sometimes claim that
there are some prisoners who are so inherently dangerous that even
if they can demonstrate that they do not misbehave when allowed to
interact with other prisoners, the potential for them to commit seriously violent misconduct in the future warrants a very long solitary
confinement term. Even assuming that officials could demonstrate
such a risk for a handful of prisoners, if those prisoners could show
good behavior over a significant period of time, they should not be
confined in solitary indefinitely, but placed in very supervised circumstances with other prisoners. The point is that even for those prisoners, it is not consistent with our notions of human decency and dignity to simply warehouse them in an isolated cell for the rest of their
lives, but rather prison officials need to develop solutions that accord
them some reasonable amount of human contact combined with appropriate security measures.
Second, prison officials could improve conditions at supermax
prisons so that even prisoners retained there for lengthy periods will
have more stimulation with access to books, television, and radio, and
more frequent communication with and visits from family and
friends. There is simply no strong security need for the total social
isolation that exists at some supermax prisons.
Finally, and perhaps most importantly, the courts and prison officials must recognize the serious mental and emotional pain and suffering that prolonged solitary confinement causes many prisoners.

See Austin VI, 502 F. Supp. 2d 660 (N.D. Ohio 2006).
Austin v. Wilkinson, 2002 U.S. Dist. LEXIS 27430 (N.D. Ohio April 5, 2002) (approving
settlement providing for new, outdoor recreation facilities at Ohio supermax).

Dec. 2008]



While courts have recognized that placing seriously mentally ill prisoners in prolonged solitary confinement risks causing them mental
pain that rises to the level of cruel and unusual punishment, many
ordinary prisoners also face the risk of suffering serious mental pain
when placed in long-term supermax confinement. Nonetheless, the
courts, prison officials, and legislators have been unwilling to recognize that significant risk of mental pain and illness as constituting an
Eighth Amendment violation.
A significant part of the reason for this judicial, executive, and legislative lack of recognition of the mental suffering caused many prisoners by prolonged solitary confinement is the discounting of mental
pain in the United States’ approach to cruel and inhuman treatment.
For example, while the courts have clearly recognized that psychological harm inflicted by prison officials can constitute an Eighth
Amendment violation, Congress, in Section 1997e(e) of the Prison
Litigation Reform Act of 1995, provided that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” This provision
reflects an often-articulated view that, because claims for mental and
emotional injuries are seen as easily feigned or exaggerated, they
should be limited or denied in the absence of observable physical in78
jury. While courts have generally held that § 1997e(e) does not
prohibit claims for injunctive or declaratory relief because to do so
might render the statute unconstitutional, and some courts have
held that nominal and punitive damages are available where prison-



Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (finding that the strip search of
male prisoners in front of female prison guards sufficed for an Eighth Amendment claim
if the search was “conducted in a harassing manner intended to humiliate and inflict psychological pain”); Babcock v. White, 102 F.3d 267, 273 (7th Cir. 1996) (“[T]he Constitution does not countenance psychological torture merely because it fails to inflict physical
injury.”); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (stating that “significant . . . emotional injury” can constitute Eighth Amendment pain); Hobbs v. Lockhart,
46 F.3d 864, 869 (8th Cir. 1995) (finding that allegations of severe emotional distress,
nightmares, and constant fears set forth a constitutional claim); see also Hudson v. McMillian, 503 U.S. 1, 16–17 (1992) (Blackmun, J., concurring). See generally James E. Robertson, Psychological Injury and the Prison Litigation Reform Act: A “Not Exactly,” Equal Protection
Analysis, 37 HARV. J. ON LEGIS. 105 (2000).
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 803(d), 110 Stat. 1321
(1996), codified at 42 U.S.C. § 1997e(e).
See Zehner v. Trigg, 952 F. Supp. 1318, 1325 (S.D. Ind. 1997), aff’d 133 F.3d 459 (7th Cir.
See Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998); Zehner, 133 F.3d at



[Vol. 11:1


ers allege violations of constitutional rights, various courts have denied plaintiffs damage relief even where the prisoner was clearly subjected to abusive treatment by prison officials. Thus, for example, the
Eleventh Circuit dismissed a damages claim in which prison officials
had “ordered prisoners to strip naked, and performed body cavity
searches while members of the opposite sex were present; physically
harassed some prisoners . . . made harassing comments to an inmate
because of his perceived sexual orientation; and ordered one pris81
oner to ‘tap dance’ while naked.” So too, while some courts have
held that rape or sexual assault constitute a physical injury within the
meaning of 1997e(e), several courts have held that “the bare allegation of sexual assault” does not constitute a physical injury under the
statute. Prisoners have also been denied relief because of the physical injury requirement even when they were placed in cells with hu84
man waste and subjected to the screams of psychiatric patients; or
forced to sleep for two months, despite repeated complaints, on a
concrete floor in a cramped cell with a mentally ill HIV-positive pris85
oner who urinated on him; or had urine thrown at her by a guard
which splashed on her face and shirt.
The PLRA preclusion of a damage action to prisoners who suffer
only psychological injuries violates the United States’ international
obligations. The U.N. Committee Against Torture recently expressed
concern over PLRA’s § 1997e(e) and indicated that it raises an issue
under Article 14 of the Torture Convention, which requires that each
victim of torture have “an enforceable right to fair and adequate





E.g., Hutchins v. McDaniels, 512 F.3d 193, 196–98 (5th Cir. 2007); Royal v. Kautzky, 375
F.3d 720, 723 (8th Cir. 2004); Calhoun, 319 F.3d at 941–42; Thompson v. Carter, 284 F.3d
411, 418 (2d Cir. 2002); Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000). But see Harris v. Garner, 190 F.3d 1279, 1287–89 (11th Cir. 1999) (holding that only injunctive relief
is available).
Harris, 190 F.3d at 1282 (setting forth facts), rev’d en banc, 216 F.3d 970 (11th Cir. 2000)
(holding that claims of prisoners who were released after the lawsuit was filed had to be
Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999).
Hancock v. Payne, No. Civ.A.1.03CV671JMRJMR, 2006 WL 21751, at *3 (S.D. Miss. Jan 4,
2006); Smith v. Shady, No. 3:CV-05-2663, 2006 WL 314514, at *2 (M.D. Pa. Feb. 9, 2006).
See Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Prisons: The
Case for Amending the Prison Litigation Reform Act 11 U. PA. J. CONST. L. 139 (2009); Stephen
B. Bright, Statement Regarding the Prison Abuse Remedies Act to the Subcommittee on
Crime, Terrorism and Homeland Security, Committee on the Judiciary, United States
House of Representatives (Apr. 22, 2008).
Harper v. Showers, 174 F.3d 716, 717–20 (5th Cir. 1999).
Watts v. Gaston, No. 97-0114-CB-M, 1999 U.S. Dist. LEXIS 6593 (S.D. Ala. Apr. 1, 1999).
Fackler v. Dillard, No. 06-10466, 2006 WL 2404498 (E.D. Mich. July 7, 2006).

Dec. 2008]




compensation.” The mere availability of an injunctive remedy to
prisoners who are psychologically tortured does not satisfy the Convention: instead, they must be able to receive compensation for their
injuries. In many cases, injunctive relief will not be available, and in
others it is the potential of officials’ personal liability that serves as
the most important deterrent of misconduct. As the respected human rights group Human Rights Watch has argued, the PLRA “can88
not be squared with US international human rights obligations.”
That prison officials may have a legitimate penological reason for
placing a prisoner in prolonged solitary confinement does not make
such placement constitutional if the officials are deliberately indifferent to serious mental harms that such placement is causing the pris89
oner. But all too often, prison officials and courts view prisoners’
allegations of mental harm as made up or manipulative. For example, prisoners in supermaxes who make repeated attempts to commit
suicide or exhibit other serious psychotic symptoms are often not
viewed as suffering serious mental illness but merely as manipulative,
using suicide attempts as a tactic to get out of the supermax. Similarly, U.S. officials at Guantanamo did not view detainees held there
who attempted or committed suicide as suffering from serious mental
pain, but merely as using attempted suicide as a tactic of warfare.
The failure to understand the depth and extent of mental pain that
many prisoners feel when kept in solitary confinement for many
years—even when the prisoner makes a serious suicide attempt—is a
reflection of the view that such mental pain is not serious.
The diminution of the seriousness of psychological and emotional
harm can also be seen in the United States’ position on torture in our
international agreements. The Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment in87



United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp.
No. 51, U.N. Doc. A/39/51 (1984).
Proposed Revisions to the Prison Litigation Reform Act: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Security, and the Subcomm. on the Constitution, Civil Rights, and Civil
Liberties of the H. Comm. on the Judiciary, 110th Cong. (2007) (statement of Human Rights
Watch), available at On
November 7, 2007, a bill was introduced before the U.S. House of Representatives that
would amend the law by striking § 1997e(e): the Prison Abuse Remedies Act of 2007,
H.R. 4109, 110th Cong., 1st Session (Nov. 7, 2007).
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Jones’El v. Berge, 164 F. Supp. 2d 1096, 1107 (W.D. Wis. 2001).
James Risen & Tim Golden, 3 Prisoners Commit Suicide at Guantánamo, N.Y. TIMES, June 11,
2006, at 1 (quoting a U.S. official who viewed the suicides not as “an act of desperation,
but [as] an act of asymmetrical warfare waged against us”).



[Vol. 11:1

cludes in its definition of torture “any act by which severe pain or suf92
fering, whether physical or mental, is intentionally inflicted.” While
the definition clearly includes mental or physical pain, the United
States defined mental torture narrowly when it ratified the Convention by submitting an understanding with its ratification. According
to U.S. officials, the understanding was necessary to ensure that a
vague and ambiguous concept of mental torture, which some international law experts argued might preclude solitary confinement, was
not imposed on U.S. officials. The United States’ understanding
stated that:
in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or
suffering refers to prolonged mental harm caused by or resulting from
(1) the intentional infliction or threatened infliction of severe physical
pain or suffering;
(2) the administration or application, or threatened administration or
application, of mind altering substances or other procedures calculated
to disrupt profoundly the senses or the personality;
(3) the threat of imminent death; or
(4) the threat that another person will imminently be subjected to death,
severe physical pain or suffering, or the administration or application of
mind altering substances or other procedures calculated to disrupt pro94
foundly the senses or personality.

Several aspects of this understanding are in tension with international norms. The requirement that the victim suffer “prolonged
mental harm” is not contained in the Torture Convention. The Department of Justice at one point interpreted “prolonged mental
harm” as “significant psychological harm of significant duration, e.g.,
lasting for months or even years.” Examples of this type of harm in92


G.A. Res. 39/46, Annex., 39 U.N. GAOR Supp. No. 5 at 197, U.N. Doc. A/39/51 (1984),
1465 U.N.T.S. 85 (emphasis added).
See Convention Against Torture: Hearing Before the Senate Comm. on Foreign Relations, 101st
Cong. 13, 17 (1990) (testimony of Deputy Assistant Attorney General Mark Richard).
Resolution of Advice and Consent to Ratification of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 138 CONG. REC. S1748601 (daily ed. Oct. 27, 1990). See also information regarding reservations, understandings, and declarations to the Convention Against Torture at the website of the Office of
the High Commissioner for Human Rights at
Memorandum from Jay C. Bybee, Office of Legal Counsel, U.S. Dep’t of Justice, to Alberto Gonzales, Counsel to the President, at 1 (Aug. 1, 2002), in THE TORTURE PAPERS:
THE ROAD TO ABU GHRAIB 172 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter Bybee Memo]. The Bybee memo was subsequently withdrawn and superseded by
a memorandum issued by Acting Assistant Attorney General Daniel Levin on December
30, 2004. Legal Standards Applicable Under 18 U.S.C. §§ 2340–2340A, Memorandum

Dec. 2008]



clude the development of posttraumatic stress disorder or chronic
depression which last for months or years. According to the Department of Justice, “this understanding ensured that mental torture
would rise to a severity seen in the context of physical torture.” In
response to this understanding, the Committee Against Torture instructed the United States that “acts of psychological torture, prohibited by the Convention, are not limited to ‘prolonged mental harm’
as set out in the State party’s understandings . . . but constitute a
wider category of acts, which cause severe mental suffering, irrespec98
tive of their prolongation or its duration.”
The second inconsistency in the U.S. position comes from its conclusion that mental torture may only result from the four acts enu99
merated in its understanding, as the list is exhaustive. Legal memoranda have also provided greater specificity to the meaning of these
acts: in order to constitute torture, the administration of drugs must
produce “an extreme effect” such that it “penetrate[s] to the core of
an individual’s ability to perceive the world around him, substantially
interfering with his cognitive abilities, [or] fundamentally alter[s] his
personality.” Examples of these effects must include dementia, significant memory impairment, obsessive compulsive disorder, or





Opinion for the Deputy Attorney General from Acting Assistant Attorney General Daniel
Levin, December 30, 2004, available at
[hereinafter Levin Memo]. The Levin memo also concluded that mental harm must be
of some lasting duration to be “prolonged,” but did not agree that the mental harm
would have to last for at least “months or even years.” Id. at n.24. The Levin memo cited
Villeda Aldana v. Fresh Del Monte Produce, Inc. 305 F. Supp. 2d 1285 (S.D. Fla 2003), in
which the court rejected a claim that individuals who had been held at gunpoint overnight and repeatedly threatened with death suffered prolonged mental harm. Fortunately, that court ruling was subsequently reversed by the Eleventh Circuit Court of Appeals. Aldana v. Del Monte Fresh Produce 416 F. 3d 1242, 1252–53 (11th Cir. 2005), cert.
denied, 549 U.S. 1032 (2006).
OPERATIONAL CONSIDERATIONS 11 (Apr. 4, 2003), available at
foi/detainees/working_grp_report_detainee_interrogations.pdf [hereinafter WORKING
Bybee Memo, supra note 95, at 18; Levin Memo, supra note 95 (“We conclude that Congress intended the list of predicate acts to be exclusive—that is, to constitute the proscribed ‘severe mental pain or suffering’ under the statute, the prolonged mental harm
must be caused by acts falling within one of the four statutory categories of predicate
U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article
19 of the Convention: United States of America, ¶ 13, U.N. Doc. CAT/C/USA/CO/2 (May 18,
WORKING GROUP REPORT, supra note 96, at 12; Bybee Memo, supra note 95, at 1.
WORKING GROUP REPORT, supra note 96, at 15.



[Vol. 11:1


“pushing someone to the brink of suicide.”
Similarly, the mere
threat that an individual might suffer death is not a sufficient predicate act to induce mental torture: instead, the government considers
mock executions or Russian Roulette to be threats that might cause
mental torture.
The restriction of the definition of mental torture to the four
enumerated acts means that all sorts of vicious, degrading, and inhuman treatment of prisoners or detainees would not constitute torture unless it caused severe physical pain. Under this definition,
many of the actions of American prison guards at Abu Ghraib would
not be torture. Moreover, under this definition the placement of
even mentally ill prisoners in prolonged solitary confinement would
not constitute torture even if the mental pain caused thereby drove
the prisoner to commit suicide. While such actions would still constitute inhuman and degrading treatment, the United States reservation
is yet another reflection of the lack of recognition accorded to mental
pain in the context of the treatment of prisoners.
The increasing practice of condemning those prisoners which
state or federal officials consider very dangerous to very long, indefinite, or even permanent confinement in supermax prisons is inhuman. Courts, legislators, and prison officials ought to recognize the
serious psychological pain such isolation from human contact causes
many prisoners. One important aspect of human existence is social
contact with others; such contact does constitute a basic human need.
Moreover, when officials confine someone permanently or virtually
permanently to supermax existence, it violates the due process requirement that prisoners be accorded meaningful review of solitary
confinement, and that even very dangerous prisoners should be given
some notice and mechanism to improve their behavior and work
their way back into a normal prison existence.


Id. at 15–16.