There are many problems with the American criminal justice system. It is too easily prone to use excessive and even lethal violence, it can be very abusive, it treats people differently based on their color and/or socio-economic status, it incarcerates people for too many things and for too long, it kills people using the death penalty, it tortures, and so on. But there is one other feature that is less discussed and that is the fact that it is not uncommon for prisoners to be kept in solitary confinement for very long periods of time, even though we know that this can cause serious psychological damage. Some states like Texas and Virginia automatically put death row inmates in solitary confinement irrespective of whether they are judged to pose a danger or not.
There may be hope on that front. US Supreme Court justice Anthony Kennedy did something unusual. While issuing an opinion on another case, he seemed to go out of his way to actually invite a constitutional challenge to the practice.
“Years on end of near-total isolation exacts a terrible price,” he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”
Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty.
“In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
Even civil liberties advocates were taken by surprise and it seems likely that there will be such a challenge soon. I hope that Kennedy’s comments are a signal that the court will rule such confinement to be cruel and unusual punishment and thus unconstitutional.