Solitary Confinement, Human Dignity, and the Eighth Amendment

*Professor of Law and Director of the Civil Rights Clinic, University of Denver Sturm College of Law. I am grateful for the helpful comments of Adeno Addis, Alan Chen, Sharon Dolovich, Ian Farrell, Nicole Godfrey, Mark Jordan, Nancy Leong, Justin Marceau, Judith Resnik, and Margo Schlanger. I am grateful to Alia Haley, Audrey Oliver, Ivana Porashka, and Emma Richards for their excellent research assistance. Finally, I am indebted to the editors of the Virginia Law Review for their careful and thoughtful work: Noah Coco, Courtney Capen Douglas, Lauren Emmerich, Carter Farnsworth, Margaret Fox, Elizabeth Gaccione, Olivia Haimerl, Lydia Ho, Amelia Isaacs, Brendan Markey, Kasey Michaud, Julia Sabik, Kelly Scrivner, Eli Sinai, Micah Stewart, Sarah Templeton, and Kyle Trotman.Show More

The harms of solitary confinement have been well-documented for centuries, yet the practice persists. Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people remain confined in solitary conditions in American prisons and jails. In part, America’s addiction to solitary confinement remains incurable because the doctrine governing whether a particular punishment practice is constitutional—that is, the doctrine interpreting the Eighth Amendment’s Cruel and Unusual Punishments Clause—fails to adequately recognize the harm caused by solitary confinement. To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (e.g., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise). But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination. In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary confinement inflicts.

This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary confinement’s harm to personhood. Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” this Article employs a construct of dignity-as-integrity—or wholeness—of personhood. Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary confinement, this Article offers a doctrinally and theoretically coherent construct for understanding solitary confinement’s multiple deprivations and the harm those deprivations inflict on personhood. By utilizing the dignity-as-integrity construct, this Article not only provides a more coherent frame for understanding the harms of solitary confinement, it also illuminates how conceptions of dignity shape Eighth Amendment doctrine. For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.

Introduction

“[T]hose who try to formulate substantial principles of justice should reserve a prominent place for human dignity. If this is not done, the distinctively moral aspects of justice will be absent; and the claims of justice will be at best legalistic and at worst arbitrary.”¹ 1.Michael S. Pritchard, Human Dignity and Justice, 82 Ethics 299, 300–01 (1972).Show More

Although the words “human dignity” appear nowhere in the Constitution, dignity has emerged as a significant constitutional value animating the Supreme Court’s individual rights jurisprudence. Dignity has functioned as the underpinning of Fourteenth Amendment privacy rights in marriage, contraception, and sexual relationships; the Fifth Amendment right against self-incrimination; the Fourth Amendment’s protection against unreasonable searches and seizures; the First Amendment right to freedom of expression; and the Fourteenth Amendment’s guarantee of equal protection.² 2.See, e.g., Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003) (overturning Texas’s anti-sodomy statute on the grounds that “adults may choose” to engage in same-sex relationships and still “retain their dignity as free persons”); Miranda v. Arizona, 384 U.S. 436, 460 (1966) (“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.”); Hudson v. Michigan, 547 U.S. 586, 594 (2006) (describing the purpose of the knock-and-announce rule as, among other things, to protect “dignity that can be destroyed by a sudden entrance”); Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is . . . designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity . . . upon which our political system rests.”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 142 (1994) (holding the exclusion of a juror based on gender is unconstitutional because it “denigrates the dignity of the excluded juror”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (holding that a minority set-aside program implicates the right “to be treated with equal dignity and respect”); Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”); see also Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 181 (2011) (cataloguing Supreme Court opinions that have used the term “dignity” and proposing a typology of dignity based on those uses); Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 Neb. L. Rev. 740, 757–59 (2006) (asserting that human dignity is a constitutional value in Supreme Court jurisprudence that gives meaning to existing rights).Show MoreSo too has human dignity played a critical role in the Court’s Eighth Amendment jurisprudence, where it serves as the touchstone of the proscription against cruel and unusual punishment.³ 3.See infra Part II.Show More

Over sixty years ago, in Trop v. Dulles, the Court articulated the contemporary Eighth Amendment standard, holding that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”⁴ 4.356 U.S. 86, 100 (1958) (plurality opinion).Show MoreIn the intervening years, the Court has repeatedly endorsed Trop, reaffirming the duty of the government to respect the dignity of all people, including those incarcerated in the nation’s prisons.⁵ 5.See, e.g.,Moore v. Texas, 137 S. Ct. 1039, 1048 (2017); Kennedy v. Louisiana, 554 U.S. 407, 419–20 (2008).Show MoreIn evaluating Eighth Amendment conditions of confinement claims, the Court has held that while people who are incarcerated “may be deprived of rights that are fundamental to liberty” as part of a lawful sentence, “the law and the Constitution demand recognition of certain other rights” because “[p]risoners retain the essence of human dignity inherent in all persons.”⁶ 6.Brown v. Plata, 563 U.S. 493, 510 (2011).Show More

Of course, this begs the question of what human dignity is. The Court has struggled with that question for decades across its constitutional jurisprudence.⁷ 7.See, e.g., supra note 2.Show MoreIt is in good company: philosophers, religious scholars, and nations (among others) have debated dignity’s meaning for centuries. The difficulty in articulating a precise definition of human dignity has caused some scholars to question whether it exists at all, dismissing appeals to dignity as “either vague restatements of other, more precise, notions or mere slogans that add nothing to an understanding of the topic.”⁸ 8.Ruth Macklin, Dignity Is a Useless Concept, 327 Brit. Med. J. 1419, 1419 (2003); see also Steven Pinker, The Stupidity of Dignity, New Republic (May 28, 2008), https://newrepublic.c‌om/article/64674/the-stupidity-dignity (arguing that dignity’s subjective nature makes it a near-useless concept); Mirko Bagaric & James Allan, The Vacuous Concept of Dignity, 5 J. Hum. Rts.257, 260, 265–67 (2006) (critiquing dignity as a concept that is too vague to serve as a solid foundation for human rights); Michael Rosen, Dignity: The Case Against, in Understanding Human Dignity143, 144 (Christopher McCrudden ed., 2013) (referring to dignity as a “Potemkin village of vain pretensions”).Show MoreBut while critiques about the definitional vagueness of human dignity are not without merit, the fact that dignity resists easy definition does not belie its existence or the potentially critical role it plays in individual rights jurisprudence.

This is especially true in the context of the Eighth Amendment, where dignity has been central to the Court’s reasoning. Indeed, the Court’s Eighth Amendment jurisprudence in the wake of Trop demonstrates that when the Court has held a challenged punishment unconstitutional, it has—explicitly or implicitly—examined the relationship between the Eighth Amendment and human dignity and been unable to reconcile the challenged state practice with the individual’s dignitary interest.⁹ 9.See infra Section II.A.Show MoreYet a review of the Court’s post-Trop Eighth Amendment decisions shows how difficult it is to find coherent and consistent descriptions of human dignity against which a challenged punishment can be measured.¹⁰ 10.See infra Section II.A.Show More

In recent years, a number of scholars have sought to bring greater clarity to judicial conceptions of dignity.¹¹ 11.See, e.g., Henry, supra note 2; Jeremy Waldron, Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkeley (N.Y. Univ. Sch. of L., Pub. L. & Legal Theory Rsch. Paper Series, Working Paper No. 09-50, 2009); Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (2013); Jonathan Simon, The Second Coming of Dignity, inThe New Criminal Justice Thinking 275 (Sharon Dolovich & Alexandra Natapoff eds., 2017); Noah B. Lindell, The Dignity Canon, 27 Cornell J.L. & Pub. Pol’y 415 (2017); Adeno Addis, Justice Kennedy on Dignity, 60 Hous. L. Rev. 519 (2023) [hereinafter Addis, Kennedy on Dignity]; Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014); Goodman, supra note 2; Rex D. Glensy, The Right to Dignity, 43 Colum. Hum. Rts. L. Rev. 65 (2011); Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values 145 (Michael J. Meyer & William A. Parent eds., 1992).Show MoreTheir work has been instrumental in highlighting the important role dignity plays in some of the most significant individual rights decisions of the last fifty years, including some involving the Eighth Amendment.

Yet no previous research has examined the concept of dignity in one context where it is both urgently necessary and conceptually appropriate: solitary confinement. Today, over 122,000 incarcerated people suffer solitary confinement in American prisons and jails. This Article therefore examines the meaning of human dignity—theoretically, normatively, and prescriptively—in the context of claims asserting that solitary confinement violates the Eighth Amendment’s prohibition against cruel and unusual punishment. My hope is that doing so will provide an additional way of conceptualizing both the harm of solitary and the meaning of dignity in the context of the Eighth Amendment.

I have chosen to explore dignity through the lens of Eighth Amendment challenges to solitary confinement for three intersecting reasons. The first is the prevalence of its use in American corrections. Although critics roundly denounced solitary confinement after it was first introduced over two centuries ago, the United States, unlike other countries, has never been able to meaningfully reduce its use of the practice.¹² 12.See David M. Shapiro, Solitary Confinement in the Young Republic, 133 Harv. L. Rev. 542, 572 (2019) (discussing the history of solitary confinement in American corrections); Ashley T. Rubin & Keramet Reiter, Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement, 43 Law & Soc. Inquiry 1604, 1611–25 (2018) (same); see also infra note 18 (discussing the efforts by other countries to reduce the use of solitary confinement and mitigate its harmful effects).Show MoreFollowing condemnations from commentators and courts, the use of solitary declined significantly from the end of the nineteenth century through the 1970s.¹³ 13.Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It 21 (2017); Keramet Ann Reiter, The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006, 57 Stud. L. Pol. & Soc’y 71, 78–81 (2012).Show MoreBut in the 1980s and 1990s, correlated with the belief that “nothing works” to curb recidivism,¹⁴ 14.See Robert Martinson, What Works?—Questions and Answers About Prison Reform, 35 Pub. Int. 22, 25, 48 (1974) (“With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (emphasis omitted)).Show Moremany states and the Federal Bureau of Prisons built an unprecedented number of supermax prisons.¹⁵ 15.See Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America 47 (2014) (“Forty-four out of fifty states, the federal government, and of course the military (for its war on terror) now operate supermax prisons.”); see also Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, 32 Crim. Just. Pol’y Rev. 66, 66–68 (2021) (detailing the sharp increase in prison expansion in the United States and the increased use of long-term solitary confinement, particularly of racial and ethnic minorities, that came with it); Daniel P. Mears, Urb. Inst. Just. Pol’y Ctr., Evaluating the Effectiveness of Supermax Prisons 4 (2006) (finding that as of 2004, forty-four states and the federal government operated supermax prisons); John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385, 405 (2006) (finding that “[b]etween 1995 and 2000, the growth rate in the number of people housed in segregation far outpaced the growth rate of the prison population overall: forty percent compared to twenty-eight percent”).Show MoreAs a result, since the 1990s, the United States has dramatically expanded its use of solitary confinement.¹⁶ 16.Keramet Reiter, The Rise of Supermax Imprisonment in the United States, in Solitary Confinement: Effects, Practices, and Pathways Toward Reform 77, 77–81 (Jules Lobel & Peter Scharff Smith eds., 2020).Show MoreBy the end of the 1990s, “there were approximately 20,000 prisoners confined to supermax-type units in the United States,”¹⁷ 17.Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 125 (2003) [hereinafter Haney, Mental Health].Show Moreand by 2016, that number climbed to “approximately 80,000 inmates . . . held in some form of isolation in state and federal prisons on any given day.”¹⁸ 18.Nat’l Comm’n on Corr. Health Care, Position Statement: Solitary Confinement (Isolation) 1 (2016); Arthur Liman Pub. Int. Program at Yale L. Sch. & Ass’n of State Corr. Adm’rs, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison 3 (2015) (approximating that “between 80,000 and 100,000 people were in isolation in prisons as of the fall of 2014”).During this same time, our peer countries adopted laws, policies, and guidelines to reduce their use of solitary and mitigate its harmful effects. See, e.g., Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz—StVollzG) [Act on the Execution of Prison Sentences and Measures of Reform and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, BGBl at 581, 2088, last amended by Gesetz [G], Oct. 5, 2021, BGBl I at 4607, § 89 (Ger.), https://ww‌w.gesetze-im-internet.de/englisch_stvollzg/index.html [https://perma.cc/7K5K-6M99] (limiting the use of solitary confinement to situations where it is “indispensable” and typically not longer than three months per year); The Prison Rules 1999, SI 1999/728, r. 55(1)(e) (Eng.), http://www.legislation.gov.uk/uksi/1999/728/article/55/made [https://perma.cc/Q7DL-D7‌VV]; Sharon Shalev & Kimmett Edgar, Deep Custody: Segregation Units and Close Supervision Centres in England and Wales148 (2015) (providing demographic data and information on how England and Wales use solitary confinement units); Barrison & Manitius, Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada(Aug. 8, 2017), http://criminallawoshawa.com/recent-stats-show-marked-drop-in-use-of-solitary-conf‌inement-across-canada/ [https://perma.cc/P4WL-B2HB] (illustrating the decreasing use of solitary confinement in Canada); Irish Penal Reform Tr., Data Released on Solitary Confinement in Irish Prisons(Oct. 24, 2016), https://www.iprt.ie/latest-news/data-released-on‌-solitary-confinement-in-irish-prisons/ [https://perma.cc/KGB5-ABEP] (noting that in 2016, fifty-one people in Irish prisons were held in solitary confinement). Compare Directorate of Prison Administration, Living in Detention: Handbook for New Inmates 41, 42, 44–45 (7th ed.), https://www.justice.gouv.fr/sites/default/files/migrations/portail/art_pix/RFC_Guide_Je‌_suis_en_detention_V7_FINAL_EUK.pdf [https://perma.cc/FYY4-WBLK] (providing limits on when and how long an incarcerated person may be held in solitary confinement), with Code Pénal [C. Pén] [Penal Code] art. R57-7-62 (Fr.) (repealed 2022) (detailing the rights of a person held in solitary confinement).To be sure, the use of penal isolation is in decline in some U.S. jurisdictions. Valerie Kiebala, Sal Rodriguez & Mirilla Zhu, Solitary Confinement in the United States: The Facts, Solitary Watch (June 2023), https://solitarywatch.org/facts/faq/ [https://perma.cc/M927-MQ‌UP]. But this is not uniformly true, especially considering that data regarding its prevalence is self-reported and changes in the terminology used to describe solitary confinement can mask the reality that, while the label may change, the underlying conditions remain the same. Joshua Manson, How Many People Are in Solitary Confinement Today?: Conflicting Definitions, Disputed Data, and Nonexistent Oversight Mean We Still Lack Reliable Information on the Scope of This Torturous Practice, Solitary Watch (Jan. 4, 2019), https://solitarywatch.org/201‌9/01/04/how-many-people-are-in-solitary-today/ [https://perma.cc/3Y6M-WVP9].Show MoreToday, over 122,000 people are in solitary confinement in American prisons and jails.¹⁹ 19.Solitary Watch & Unlock the Box Campaign, Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails 3 (2023), https://solitarywatch.org/wp-content/uploads/2023/05/Calculating-Torture-Report-May-2023-R2.pdf [https://perma.cc/DLJ7-U8Z2]. The 2021 Correctional Leaders Association-Liman Survey puts the estimate of people in solitary confinement in prisons between 41,000 and 48,000, but that study does not include jails. Corr. Leaders Ass’n & Arthur Liman Ctr. for Pub. Int. L. at Yale L. Sch., Time-In-Cell: A 2021 Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems, at xi, 4 (2022), ht‌tps://law.yale.edu/sites/default/files/area/center/liman/document/time_in_cell_2021.pdf [http‌s://perma.cc/8D9C-UUQR].Show MoreSome have been held in isolation cells for over four decades.²⁰ 20.See, e.g., Albert Woodfox Freed After 43 Years in Solitary Confinement, Amnesty Int’l UK (Oct. 6, 2020, 6:12 AM), https://www.amnesty.org.uk/albert-woodfox-free-louisiana-usa-after-43-years-solitary-confinement-us [https://perma.cc/CU4A-N9WE]; Tim Franks, Forty Years in Solitary Confinement and Counting, BBC (Apr. 4, 2012), https://www.bbc.com/news‌/magazine-17564805 [https://perma.cc/25KW-LPGL]; Brian Mann, How the US Decided to Lock 80,000 People in Solitary Confinement, N. Country Pub. Radio (Aug. 17, 2015), https://‌www.northcountrypublicradio.org/news/story/29254/20150818/how-the-us-decided-to-lock-80-000-people-in-solitary-confinement [https://perma.cc/NQK4-78KV] (“Some inmates have been confined in solitary for twenty, thirty, even forty years at a time.”); Shane Bauer, Solitary in Iran Nearly Broke Me. Then I Went Inside America’s Prisons., Mother Jones (Dec. 2012), https://www.motherjones.com/politics/2012/10/solitary-confinement-shane-bauer/ [https://pe‌rma.cc/2VNX-QBLZ] (documenting that eighty-nine people in Pelican Bay State Prison’s Security Housing Unit have been housed in solitary confinement for over twenty years and one has been in solitary confinement for forty-two years).Show More

But what, precisely, is the nature of the harm caused by solitary confinement? That question forms the basis of my second reason for exploring dignity through the lens of Eighth Amendment challenges to solitary: such an examination provides a unified framework for understanding the harm caused by long-term isolation. Mental health professionals, physicians, sociologists, and incarcerated people have described in considerable detail the constellation of symptoms and pathologies that accompany prolonged isolation, many of which are severe, painful, disabling, and permanent.²¹ 21.See infra Parts I, II; see also Craig Haney, Brie Williams & Cyrus Ahalt, Consensus Statement from the Santa Cruz Summit on Solitary Confinement and Health, 115 Nw. U. L. Rev. 335, 345–49 (2020) (recommending reform based on the evidence of negative physical and psychological effects of isolation).Show MoreYet despite the fact that hundreds of studies across nations and over decades have virtually all reached similar conclusions as to the physical and psychological injuries caused by long-term isolation,²² 22.See generally Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 365 (2018) [hereinafter Haney, Psychological Effects] (summarizing studies on the psychological effects of solitary confinement). One study that purported to find minimal or no negative effects—the One Year Longitudinal Study of the Psychological Effects of Administrative Segregation study conducted by Maureen O’Keefe and others, in the Colorado Department of Corrections—has been roundly discredited. Id. at 384–86.Show Moremost courts have held that solitary confinement does not constitute cruel and unusual punishment.²³ 23.An important exception exists where the plaintiffs are juveniles or have a preexisting serious mental illness. See, e.g.,Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1123–24 (W.D. Wis. 2001) (observing conditions of isolation at a particular facility “pose[d] a grave risk of harm to seriously mentally ill inmates” and concluding that they should “not be housed” there because of that risk); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (concluding that “[a]s to mentally ill inmates in [solitary confinement], the severe and psychologically harmful deprivations” in the Texas prison system are “by our evolving and maturing . . . standards of humanity and decency, found to be cruel and unusual punishment”), rev’d and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001); Madrid v. Gomez, 889 F. Supp. 1146, 1266–67 (N.D. Cal. 1995) (finding “a substantial or excessive risk of harm with respect to inmates who were mentally ill or otherwise particularly vulnerable to conditions of extreme isolation and reduced environmental stimulation” presented by solitary confinement); Clark v. Coupe, 55 F.4th 167, 177, 181 (3d Cir. 2022) (reaffirming the exception for people with mental illness); Williams v. Sec’y Pa. Dep’t of Corr., 117 F.4th 503, 508–09, 524 (3d Cir. 2024); Finley v. Huss, 102 F.4th 789, 805 (6th Cir. 2024).Show MoreOne of the main reasons for this is the difficulty of articulating the harm caused by solitary confinement in a constitutionally cognizable way.

My thesis is that human dignity is the thread that unites and provides a framework for understanding the various harms that solitary inflicts. As such, it provides both a doctrinally and theoretically coherent construct for understanding the deprivations inherent in solitary confinement and the additional and distinct harm that such confinement causes to dignitary interests.

This point leads to my third reason for exploring dignity through the lens of Eighth Amendment challenges to solitary confinement: just as an examination of dignity helps us to better understand the harm caused by solitary confinement, it is also true that understanding the harm of solitary confinement will, I hope, shed additional light on the concept of dignity as it is used in Eighth Amendment jurisprudence and—at a time when fundamental rights are undergoing a sweeping reexamination²⁴ 24.See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246, 2248 (2022) (holding that the Constitution does not confer a right to abortion); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2165, 2175–76 (2023) (limiting the use of race-conscious college admissions programs); Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022) (holding that a federal habeas court may not consider evidence beyond a state court record based on ineffective assistance of state post-conviction counsel).Show More—constitutional law more generally.

This Article proceeds in three parts. Part I provides an overview of the practice of solitary confinement in American corrections. Part II examines the evolution of the Supreme Court’s Eighth Amendment conditions of confinement jurisprudence, illustrating how the Court’s rejection of a totality-of-the-circumstances approach to analyzing prison conditions has resulted in the failure to recognize the multiple, discrete, and overlapping harms that solitary confinement causes, especially including personhood harms. Drawing on the Court’s invocation of dignity as the touchstone of the Eighth Amendment, Part III first considers the philosophical and legal formulations of dignity that might be brought to bear in analyzing conditions of confinement claims and asserts that dignity-as-integrity (wholeness) constitutes a basic human need deserving of Eighth Amendment protection. Part III then analyzes the ways that solitary confinement operates to erode the integrity of various dimensions of personhood, and thus constitutes an impermissible violation of the Eighth Amendment’s dignity guarantee.

1.  Michael S. Pritchard
   

   ,

   Human Dignity and Justice,

   82

   Ethics

   299, 300–01

   (1972). ↑

2.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003) (overturning Texas’s anti-sodomy statute on the grounds that “adults may choose” to engage in same-sex relationships and still “retain their dignity as free persons”); Miranda v. Arizona, 384 U.S. 436, 460 (1966) (“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.”); Hudson v. Michigan, 547 U.S. 586, 594 (2006) (describing the purpose of the knock-and-announce rule as, among other things, to protect “dignity that can be destroyed by a sudden entrance”); Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is . . . designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity . . . upon which our political system rests.”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 142 (1994) (holding the exclusion of a juror based on gender is unconstitutional because it “denigrates the dignity of the excluded juror”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (holding that a minority set-aside program implicates the right “to be treated with equal dignity and respect”); Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”); see also Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 181 (2011) (cataloguing Supreme Court opinions that have used the term “dignity” and proposing a typology of dignity based on those uses); Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 Neb. L. Rev. 740, 757–59 (2006) (asserting that human dignity is a constitutional value in Supreme Court jurisprudence that gives meaning to existing rights). ↑
3.  See infra Part II. ↑
4.  356 U.S. 86, 100 (1958) (plurality opinion). ↑
5.  See, e.g., Moore v. Texas, 137 S. Ct. 1039, 1048 (2017); Kennedy v. Louisiana, 554 U.S. 407,
   

   419–20

   (2008). ↑

6.  Brown v. Plata, 563 U.S. 493, 510 (2011). ↑
7.  See, e.g., supra note 2. ↑
8.  Ruth Macklin, Dignity Is a Useless Concept, 327 Brit. Med. J. 1419, 1419 (2003); see also Steven Pinker, The Stupidity of Dignity, New Republic (May 28, 2008), https://newrepublic.c‌om/article/64674/the-stupidity-dignity (arguing that dignity’s subjective nature makes it a near-useless concept); Mirko Bagaric & James Allan, The Vacuous Concept of Dignity, 5
   

   J.

   Hum. Rts.

   257, 260,

   265–67

   (2006) (critiquing dignity as a concept that is too vague to serve as a solid foundation for human rights); Michael Rosen, Dignity: The Case Against, in Understanding Human Dignity

   143, 144

   (Christopher McCrudden ed., 2013) (referring to dignity as a “Potemkin village of vain pretensions”). ↑

9.  See infra Section II.A. ↑
10.  See infra Section II.A. ↑
11.  See, e.g., Henry, supra note 2; Jeremy Waldron, Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkeley
    

    (N.Y. Univ. Sch. of L., Pub. L. & Legal Theory Rsch. Paper Series, Working Paper No. 09-50, 2009); Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person

    (2013);

    Jonathan Simon, The Second Coming of Dignity, in

    The New Criminal Justice Thinking 275 (Sharon Dolovich & Alexandra Natapoff eds.,

    2017);

    Noah

    B.

    Lindell, The Dignity Canon, 27 Cornell J.L. & Pub. Pol’y 415 (2017); Adeno Addis, Justice Kennedy on Dignity, 60 Hous. L. Rev. 519 (2023) [hereinafter Addis, Kennedy on Dignity]; Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014); Goodman, supra note 2; Rex D. Glensy, The Right to Dignity, 43 Colum. Hum. Rts. L. Rev. 65 (2011); Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values 145 (Michael J. Meyer & William A. Parent eds.,

    1992)

    . ↑

12.  See David M. Shapiro, Solitary Confinement in the Young Republic, 133 Harv. L. Rev. 542, 572 (2019) (discussing the history of solitary confinement in American corrections); Ashley T. Rubin & Keramet Reiter, Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement, 43 Law & Soc. Inquiry 1604, 1611–25 (2018) (same); see also infra note 18 (discussing the efforts by other countries to reduce the use of solitary confinement and mitigate its harmful effects). ↑
13.  Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It
    

    21

    (2017); Keramet Ann Reiter, The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006, 57 Stud. L. Pol. & Soc’y 71, 78

    –81

    (2012). ↑

14.  See Robert Martinson, What Works?—Questions and Answers About Prison Reform, 35 Pub. Int. 22, 25, 48 (1974) (“With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (emphasis omitted)). ↑
15.  See Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America
    

    47 (2014) (

    “Forty-four out of fifty states, the federal government, and of course the military (for its war on terror) now operate supermax prisons.”); see also Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, 32 Crim. Just. Pol’y Rev. 66, 66

    –68

    (2021) (detailing the sharp increase in prison expansion in the United States and the increased use of long-term solitary confinement, particularly of racial and ethnic minorities, that came with it); Daniel P. Mears, Urb. Inst. Just. Pol’y Ctr., Evaluating the Effectiveness of Supermax Prisons 4 (2006) (finding that as of 2004, forty-four states and the federal government operated supermax prisons); John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385, 405 (2006) (finding that “[b]etween 1995 and 2000, the growth rate in the number of people housed in segregation far outpaced the growth rate of the prison population overall: forty percent compared to twenty-eight percent”). ↑

16.  Keramet Reiter, The Rise of Supermax Imprisonment in the United States, in Solitary Confinement: Effects, Practices, and Pathways Toward Reform
    

    77,

    77

    –

    81

    (

    Jules Lobel & Peter Scharff Smith eds., 2020). ↑

17.  Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 125 (2003) [hereinafter Haney, Mental Health]. ↑
18.  Nat’l Comm’n on Corr. Health Care, Position Statement: Solitary Confinement (Isolation) 1 (2016); Arthur Liman Pub. Int. Program at Yale L. Sch. & Ass’n of State Corr. Adm’rs, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison 3 (2015) (approximating that “between 80,000 and 100,000 people were in isolation in prisons as of the fall of 2014”).

    During this same time, our peer countries adopted laws, policies, and guidelines to reduce their use of solitary and mitigate its harmful effects. See, e.g., Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz—StVollzG) [Act on the Execution of Prison Sentences and Measures of Reform and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, BGBl at 581, 2088, last amended by Gesetz [G], Oct. 5, 2021, BGBl I at 4607, § 89 (Ger.), https://ww‌w.gesetze-im-internet.de/englisch_stvollzg/index.html [https://perma.cc/7K5K-6M99] (limiting the use of solitary confinement to situations where it is “indispensable” and typically not longer than three months per year); The Prison Rules 1999, SI 1999/728, r. 55(1)(e) (Eng.), http://www.legislation.gov.uk/uksi/1999/728/article/55/made [https://perma.cc/Q7DL-D7‌VV]; Sharon Shalev & Kimmett Edgar, Deep Custody: Segregation Units and Close Supervision Centres in England and Wales 148 (2015) (providing demographic data and information on how England and Wales use solitary confinement units); Barrison & Manitius, Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada (Aug. 8, 2017), http://criminallawoshawa.com/recent-stats-show-marked-drop-in-use-of-solitary-conf‌inement-across-canada/ [https://perma.cc/P4WL-B2HB] (illustrating the decreasing use of solitary confinement in Canada); Irish Penal Reform Tr., Data Released on Solitary Confinement in Irish Prisons (Oct. 24, 2016), https://www.iprt.ie/latest-news/data-released-on‌-solitary-confinement-in-irish-prisons/ [https://perma.cc/KGB5-ABEP] (noting that in 2016, fifty-one people in Irish prisons were held in solitary confinement). Compare Directorate of Prison Administration, Living in Detention: Handbook for New Inmates 41, 42, 44

    –

    45 (7th ed.), https://www.justice.gouv.fr/sites/default/files/migrations/portail/art_pix/RFC_Guide_Je‌_suis_en_detention_V7_FINAL_EUK.pdf [https://perma.cc/FYY4-WBLK] (providing limits on when and how long an incarcerated person may be held in solitary confinement), with Code Pénal [C. Pén] [Penal Code] art. R57-7-62 (Fr.) (repealed 2022) (detailing the rights of a person held in solitary confinement).

    To be sure, the use of penal isolation is in decline in some U.S. jurisdictions. Valerie Kiebala, Sal Rodriguez & Mirilla Zhu, Solitary Confinement in the United States: The Facts, Solitary Watch (June 2023), https://solitarywatch.org/facts/faq/ [https://perma.cc/M927-MQ‌UP]. But this is not uniformly true, especially considering that data regarding its prevalence is self-reported and changes in the terminology used to describe solitary confinement can mask the reality that, while the label may change, the underlying conditions remain the same. Joshua Manson, How Many People Are in Solitary Confinement Today?: Conflicting Definitions, Disputed Data, and Nonexistent Oversight Mean We Still Lack Reliable Information on the Scope of This Torturous Practice, Solitary Watch (Jan. 4, 2019), https://solitarywatch.org/201‌9/01/04/how-many-people-are-in-solitary-today/ [https://perma.cc/3Y6M-WVP9]. ↑

19.  Solitary Watch & Unlock the Box Campaign, Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails 3 (2023), https://solitarywatch.org/wp-content/uploads/2023/05/Calculating-Torture-Report-May-2023-R2.pdf [https://perma.cc/DLJ7-U8Z2]. The 2021 Correctional Leaders Association-Liman Survey puts the estimate of people in solitary confinement in prisons between 41,000 and 48,000, but that study does not include jails. Corr. Leaders Ass’n & Arthur Liman Ctr. for Pub. Int. L. at Yale L. Sch., Time-In-Cell: A 2021 Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems, at xi, 4 (2022), ht‌tps://law.yale.edu/sites/default/files/area/center/liman/document/time_in_cell_2021.pdf [http‌s://perma.cc/8D9C-UUQR]. ↑
20.  See, e.g., Albert Woodfox Freed After 43 Years in Solitary Confinement, Amnesty Int’l UK (Oct. 6, 2020, 6:12 AM), https://www.amnesty.org.uk/albert-woodfox-free-louisiana-usa-after-43-years-solitary-confinement-us [https://perma.cc/CU4A-N9WE]; Tim Franks, Forty Years in Solitary Confinement and Counting, BBC (Apr. 4, 2012), https://www.bbc.com/news‌/magazine-17564805 [https://perma.cc/25KW-LPGL]; Brian Mann, How the US Decided to Lock 80,000 People in Solitary Confinement, N. Country Pub. Radio (Aug. 17, 2015), https://‌www.northcountrypublicradio.org/news/story/29254/20150818/how-the-us-decided-to-lock-80-000-people-in-solitary-confinement [https://perma.cc/NQK4-78KV] (“Some inmates have been confined in solitary for twenty, thirty, even forty years at a time.”); Shane Bauer, Solitary in Iran Nearly Broke Me. Then I Went Inside America’s Prisons., Mother Jones (Dec. 2012), https://www.motherjones.com/politics/2012/10/solitary-confinement-shane-bauer/ [https://pe‌rma.cc/2VNX-QBLZ] (documenting that eighty-nine people in Pelican Bay State Prison’s Security Housing Unit have been housed in solitary confinement for over twenty years and one has been in solitary confinement for forty-two years). ↑
21.  See infra Parts I, II; see also Craig Haney, Brie Williams & Cyrus Ahalt, Consensus Statement from the Santa Cruz Summit on Solitary Confinement and Health, 115 Nw. U. L. Rev. 335, 345
    

    –49

    (2020) (recommending reform based on the evidence of negative physical and psychological effects of isolation). ↑

22.  See generally Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 365 (2018) [hereinafter Haney, Psychological Effects] (summarizing studies on the psychological effects of solitary confinement). One study that purported to find minimal or no negative effects—the One Year Longitudinal Study of the Psychological Effects of Administrative Segregation study conducted by Maureen O’Keefe and others, in the Colorado Department of Corrections—has been roundly discredited. Id. at 384
    

    –86.

    ↑

23.  An important exception exists where the plaintiffs are juveniles or have a preexisting serious mental illness. See, e.g., Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1123–24 (W.D. Wis. 2001) (observing conditions of isolation at a particular facility “pose[d] a grave risk of harm to seriously mentally ill inmates” and concluding that they should “not be housed” there because of that risk); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (concluding that “[a]s to mentally ill inmates in [solitary confinement], the severe and psychologically harmful deprivations” in the Texas prison system are “by our evolving and maturing . . . standards of humanity and decency, found to be cruel and unusual punishment”), rev’d and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001); Madrid v. Gomez, 889 F. Supp. 1146, 1266–67 (N.D. Cal. 1995) (finding “a substantial or excessive risk of harm with respect to inmates who were mentally ill or otherwise particularly vulnerable to conditions of extreme isolation and reduced environmental stimulation” presented by solitary confinement); Clark v. Coupe, 55 F.4th 167, 177, 181 (3d Cir. 2022) (reaffirming the exception for people with mental illness); Williams v. Sec’y Pa. Dep’t of Corr., 117 F.4th 503, 508–09, 524 (3d Cir. 2024); Finley v. Huss, 102 F.4th 789, 805 (6th Cir. 2024). ↑

24.  See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246, 2248 (2022) (holding that the Constitution does not confer a right to abortion); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2165, 2175–76 (2023) (limiting the use of race-conscious college admissions programs); Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022) (holding that a federal habeas court may not consider evidence beyond a state court record based on ineffective assistance of state post-conviction counsel). ↑