Supreme Court Justice Anthony Kennedy last week denounced keeping persons in solitary confinement for long periods of time, and suggested that courts may need to intervene to stop the practice.
Kennedy’s comments came in a concurring opinion in a federal habeas corpus case unrelated to that issue, Davis v. Ayala, decided June 18.
Ayala involved the application of harmless error to federal habeas corpus cases, but Kennedy took the opportunity to note that the petitioner, Ayala, had spent the majority of his 25 years in prison in “administrative segregation,” or “as it is better known, solitary confinement.”
Kennedy said it is “likely” that Ayala has been held in a “windowless cell no larger than a typical parking spot for 23 hours a day,” and in the one hour he is allowed outside, is likely allowed “little or no opportunity for conversation or interaction with anyone.”
Kennedy noted that the “human toll wrought by extended terms of isolation long has been understood,” and that the Supreme Court itself has recognized that solitary confinement “bears ‘a further terror and peculiar mark of infamy.’”
“[T]he condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest,” Kennedy said, though he noted a “new and growing awareness” of the devastating effects of solitary confinement on prisoners.
While prison officials must have discretion to impose “temporary” solitary confinement in some instances to impose discipline and protect prison staff and other inmates, Kennedy suggested that courts may need to intervene to stop the “terrible price” of long-term solitary confinement.
“In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them,” Kennedy concluded.
Showing deep division on the Court on the issue, Justice Clarence Thomas, in a concurring opinion in response to Kennedy, said the “accommodations in which Ayala is housed are a far sight more spacious than those in which his [murder] victims” are now housed.