I. Introduction

Across the United States, the use of solitary confinement within the penal system is far from unusual, but is it cruel? Solitary confinement is a disciplinary method where individuals are forced into isolation following a behavioral infraction or a safety concern. The process varies between jurisdictions but typically involves confinement in a cell isolated from human contact for twenty-two hours or more a day. Data from 2006 found that the average period of time spent in solitary confinement amounts to just over a month, at thirty-seven days. However, in extreme cases, solitary confinement can last for years, with the longest recorded time amounting to nearly forty-four years. [1] During this period, inmates are typically barred from rehabilitative and educational activities, contact with their loved ones, and mental health or drug treatment. [2] Solitary confinement is also associated with a variety of psychological harms, and there is a growing literature questioning its effectiveness in increasing prison safety and deterring future misconduct. [3] In light of the extremities of the practice, the use of solitary confinement for extended periods of time should be severely restricted, if not completely banned, across the United States due to its violations of fundamental Eighth Amendment rights.

II. Solitary Confinement in US Jails and Prisons: Past and Present

Solitary confinement was first introduced in the United States in 1787 through an experiment conducted at the Walnut Street Jail in Philadelphia by a group of Quakers. [4] However, once they discovered that solitary confinement severely impacted the ability of many of those involved to function in society after release, the practice was slowly abandoned over the next few decades. [5] Solitary confinement, despite this conclusion, continued to be used in other long-term correctional facilities across the country. Over a century later, in an opinion for the In Re Medley (1890) case, Supreme Court Justice Miller found that a considerable number of prisoners severely suffered from being put in “even a short confinement” and that “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.” These statements indicate the early recognition of solitary confinement's damaging effects on inmates, as well as hinting at its ineffectiveness as a punishment. However, the Court did not entirely ban the practice nor specifically refer to the “cruel and unusual” clause in their judgment; rather, they found the Colorado statute unconstitutional on other grounds, specifically the ex post facto clause. Regardless, the ruling is considered an early, explicit acknowledgement of the faultiness and inhumanity of solitary confinement. 

Even as the harms of solitary confinement became increasingly evident, the practice persisted. In 1982, a prison in Marion, Illinois, was the first to adopt twenty-three-hour-a-day cell isolation and prohibit communicable yard time for all inmates–a move made after the death of two officers and an inmate. [6] This form of permanent lockdown and confinement spread to several other states within the next few years. In 1989, California built Pelican Bay, the first Supermax facility aimed solely at holding house inmates in isolation. Inside the facility, twenty-two and a half hours are spent in an eight-by-ten-foot cell, and the remaining hour and a half is spent alone in a small concrete exercise pen, conditions that were described by a federal judge in Madrid v. Gomez (1995) as “[hovering] on the edge of what is humanly tolerable.” Still, many other states followed the model of Pelican Bay, and Supermax prisons were built across the country throughout the 1990s. 

Modernly, the most recent and comprehensive account found that more than 122,000 incarcerated men, women, and children were held daily in isolated confinement for twenty-two or more hours on a given day in 2019, amounting to nearly 6.3 percent of the total prison population. [7] Of these prisoners, a study conducted by Yale University in 2021 found that 19.1% are held in solitary confinement for between fifteen to twenty-nine days, 18.7% are held for between thirty and sixty days, 27.5% are held for between sixty-one and a hundred and eighty days, and 24.2% are held for over a year (including 2.1% held between six and ten years and 3.7% held for ten plus years). [8] It is worth noting that data on solitary confinement is often unreliable and is likely to be an underrepresentation of the true statistics, given that the figures are self-reported. Additionally, many jurisdictions do not regularly collect data on the length of time, further obstructing the reliability of the figures. Regardless, it is clear that a substantial number of individuals are being held in solitary confinement for extended periods of time on any given day across the country.

III. The Cruel and Unusual Clause

1. Deliberate Indifference

The Cruel and Unusual Punishments Clause of the Eighth Amendment is a highly debated part of the Bill of Rights. The phrasing is infamously unclear and up to interpretation. Still, through a variety of court cases primarily brought up by petitioners in the penal system, standards have been gradually established to better protect individuals against unconstitutional forms of punishment. One such measure is the deliberate test, established by Farmer v. Brennan, and it asks whether prison officials were deliberately disregarding a risk posed to prisoners based on their health and safety. 

The first part of this test is proving the risk of substantial harm. Relevant risks, per Esteele v. Gamble, go beyond “physically barbarous punishments” and include psychological harm as a valid Eighth Amendment claim. As previously described, In re Medley provides an early foundation for recognizing the substantial harm caused by solitary confinement. Justice Miller explicitly emphasized the severity of the punishment, noting that the vast majority of individuals subjected to isolation experienced long-lasting psychological damage that hindered their ability to reenter society after release, demonstrating both substantial and highly likely risk of harm. Since Medley, numerous psychological studies have reinforced this same conclusion and reflect a broad professional consensus that solitary confinement inflicts extreme and often irreversible harm. Many incarcerated individuals exhibit serious psychological, psychiatric, and physiological effects, including psychosis; hallucinations; paranoia; difficulties with thinking, concentration, and memory; and the worsening of pre-existing conditions. [9] One such individual, Robert King, who spent twenty-nine years in solitary confinement before getting his conviction overturned, described that he lost “his interest in communicating and experienced an emotional numbness that led to the loss of basic skills.” [10] Testimonies and scientific studies alike prove that the isolation has a plethora of adverse impacts on the psychological state of the inmate. Further, a 2023 study by the National Alliance on Mental Health found that although only 6.3% of the prison population is held in solitary confinement, half of all prison and jail suicides occur there. [11] This statistic showcases the high correlation between mental health crises and solitary confinement, further illustrating the psychological risk involved. Given this extensive evidence and longstanding recognition of the harms of isolation, the substantial-risk-of-harm prong is clearly satisfied in the case of solitary confinement. 

In the proof of deliberate indifference, the recklessness prong must also be proven, meaning the defendant must have subjectively known of the substantial risk of harm and recklessly disregarded it. In the Farmer decision, the Court describes that one way to fulfill this prong is to conclude that the “official knew of a substantial risk from the very fact that the risk was obvious.” Although this prong is more difficult to defend than the first, it is reasonable to conclude that, considering the professional consensus on the harms, the long-standing recognition of these harms, and the official’s personal experience witnessing the impact of solitary confinement on the incarcerated, the risk should be known to the prison officials. This understanding is supported by recent rulings, including Palakovic v. Wetzel, which described the harms of solitary confinement as an “increasingly obvious reality.” In short, the costly and obvious danger posed to inmates held under isolation fulfills the test of deliberate indifference, proving that the practice violates the cruel and unusual clause of the Eighth Amendment.  

2. Standards of Decency

Another test of whether a punishment constitutes something cruel and unusual is the standards of decency. In Trop v. Dulles (1958), Chief Justice Earl Warren famously wrote that the clause “[draws] its meaning from the evolving standards of decency that mark the progress of a maturing society,” allowing for the definition of cruel and unusual to be interpreted on an ongoing basis. Evolving standards of decency have been applied in several landmark Eighth Amendment cases, including Kennedy v. Louisiana (2008), Roper v. Simmons (2005), and Furman v. Georgia (1972), to assess the constitutionality of a punishment. To determine this, the Court frequently considers legislative action, international standards, and professional consensus. 

Beginning with actions taken by the legislature, there have been many successes of the movement to abolish solitary confinement, although there remains a large variety across the states. Still, since 2009, forty-five states have introduced or passed laws that restrict solitary confinement in some way. [12] These regulations include five states limiting the use of solitary confinement on minors, and six prohibiting its use on pregnant people. [13] Additionally, three states have passed bills limiting solitary confinement to fifteen days or less; seventeen other states introduced similar bills, but they did not pass into law. On the federal level, the End Solitary Confinement Act (H.R. 4682) was introduced by Representative Sydney Kamlager-Dover (D-CA) earlier this year, but it has yet to be passed in either the House or the Senate. [14] Although progress varies across the country, clear steps have been taken to reform solitary confinement practices in the United States’ penal system, implying that the practice contradicts expanding standards of decency. 

Another measure is international perspectives. There have been major moves in the international community to call for its abolishment. In 2011, United Nations expert on torture Juan E. Méndez called for a complete ban on the practice, allowing exceptions only in extreme circumstances and absolutely no exceptions for juveniles or people with mental disabilities. [15] Méndez continued to explain that the use of solitary confinement can amount to torture and goes against the very aim of the penitentiary system: rehabilitation. These ideas are reaffirmed three years later in the United Nations Standard Minimum Rules for the Treatment of Prisoners, more commonly known as the Nelson Mandela Rules, which say, “Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority.” [16] These statements represent a clear disapproval of solitary confinement by the international community and liken the conditions to torture. Despite this, given the widespread use of solitary confinement in American prisons, as described previously, it is clear that the practice is not merely a last resort. Prisoners have been placed in solitary confinement for minor infractions, such as talking back to a guard or getting caught with contraband (such as a pack of cigarettes); for simply speaking with a suspected gang member; and even for retribution for political activism. [17] Furthermore, the United States is considered a world leader in holding prisoners in prolonged solitary confinement, [18] further suggesting that it is an outlier and that its use of solitary confinement contradicts accepted international standards of decency. 

Lastly, in terms of professional consensus, the widespread understanding that solitary confinement is associated with severe psychological harm is explored in depth in the previous section on deliberate indifference. A variety of respected health organizations and criminal justice advocacy groups have called for the abolishment of solitary confinement, including the American Public Health Association, [19] the National Alliance on Mental Health, [20] and the American Civil Liberties Union. [21] This widespread backlash among the professional community suggests that the practice is contradicting modern standards of decency and is widely considered to be cruel.

To summarize, there is evidence in three major considerations of standards of decency– legislature, international standards, and professional consensus–to suggest that solitary confinement constitutes a cruel and unusual punishment and is therefore a violation of the constitutional protections under the Eighth Amendment.

IV. Conclusion

Solitary confinement is a cruel practice that has become far too normalized in the U.S. prison system. Holding a person in isolation for twenty-two hours or more a day for an extended period of time is inhumane and strongly associated with psychological harm–a notion that has existed across the country almost as long as the practice has, since the Quakers first used it as an experiment in punishment. Despite this and more contemporary conclusions about the practice’s cruelty, solitary confinement continues to be used across the United States, impacting over 122,000 incarcerated individuals. The abolishment of solitary confinement has been a long time coming. It exists in stark contradiction to the Eighth Amendment’s protection against cruel and unusual punishments, raising human rights concerns and detrimentally obstructing the criminal justice system’s ability to rehabilitate the incarcerated.