By Alexandra Aaron
Alexandra Aaron is a sophomore at the University of Wisconsin-Madison studying Political Science and History.
Last year a U.S District Court Judge ruled that 24 hour isolation of prisoners violated their due process rights, and that Virginia’s Department of Corrections would have to review prisoners on a case-by-case basis. The state appealed this decision and on October 28th a three-judge panel of the 4th U.S. Circuit Court of Appeals heard arguments.
The Virginia prisoner who brought the lawsuit is on death row, where prisoners are often subjected to solitary confinement. Prison officials assert that solitary confinement is necessary for the health and safety of the general prison population, as well as of the prisoners being isolated. They argue that prisoners on death row are more likely to incite violence and cause harm because, ostensibly, they have less to lose.  They have also pointed to the increased desperation of death row inmates and the likelihood of an escape attempt. Experts have refuted these claims, contending that years of data have disproved the widely held misconception that death row inmates are more dangerous than other prisoners. 
In the past, constitutional challenges to solitary confinement have employed Eighth Amendment claims of cruel and unusual punishment. Proving these claims has been difficult. In Farmer v. Brennan the Supreme Court held that to employ an Eighth Amendment Claim, a prisoner must establish a “substantial risk of serious harm to inmates,” and that prison officials were “deliberately indifferent” to these risks.  Meeting this burden has been challenging and in most cases a prisoner must be a juvenile or mentally disabled prior to confinement for an Eighth Amendment challenge to succeed. Generally, prisoners have failed to prove that solitary confinement causes physical damage and courts have refused to recognize psychological injuries as “serious harm.”
Due process claims have been more successful. In Wilkinson v. Austin the Supreme Court ruled that while the Fourteenth Amendment does not protect against solitary confinement in and of itself, there is a “liberty interest” in procedural protections;  a prisoner cannot be arbitrarily confined. He or she must be afforded specific procedural protections that ensure his or her liberty. In Wilkinson, the Court held that the Ohio penitentiary system’s procedure of determining the necessity of solitary confinement in their Supermax prison afforded inmates due process. The Court applied the Mathews v. Eldridge three-pronged due process test that requires the Court to consider 1) the interests of the individual in retaining their property, and the injury threatened by the official action, 2) the risk of error through the procedures used and probable value, and 3) the costs and administrative burden of the additional process. The Court found that the state’s interests in adequately punishing and working to rehabilitate prisoners, and, more importantly, the procedural protections the prisons afforded in imposing solitary confinement met Mathews’ due process standards. Ohio’s procedures include allowing prisoners to make oral statements and call witnesses in their defense, as well as explaining to the prisoners what they need to do in order to be removed from solitary confinement. Prisoners in solitary confinement for prolonged periods of time must also be regularly examined and their confinement must be reviewed in order to prevent unnecessary isolation and physical or psychological trauma.
In Virginia and many other states, prisoners, particularly those on death row, are vulnerable to arbitrary and often unnecessary solitary confinement.  The U.S District Judge ruled that failure to provide prisoners with similar procedural protections to those in Ohio violated prisoners’ due process rights. In many cases prisoners are isolated for years without knowing why they have been subjected to solitary confinement or what they can do to be released into the general prison population. Despite generally unsuccessful Eighth Amendment claims, it has been proven and accepted that prolonged solitary confinement causes severe psychological damage. The hope is that procedural due process claims will prevent the lengthy isolation that causes this damage and protect prisoners who are especially vulnerable to it. Prisoners around the county will have a strong claim for challenging current solitary confinement procedures should the U.S Circuit Court of Appeals uphold this ruling.
 “Court of Appeals to Review Solitary Confinement Policy for Death Row Inmates,” October 27, 2014, http://www.dailyprogress.com/news/local/court-of-appeals-to-review-solitary-confinement-policy-for-death/article_a101b136-5dcd-11e4-a000-0017a43b2370.html
 Farmer v. Brennan, 511 U.S 825 (1994)
 Wilkinson v. Austin, 544 U.S 74 (2005).
 “Leroy Peoples Lawsuit Renews Debate Over Solitary Confinement,” December 10, 2012, http://www.huffingtonpost.com/2012/12/10/leroy-peoples-solitary-confinement-lawsuit_n_2272670.html
Photo credit: Flickr user Chris Gray