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Legality
The legality of solitary confinement has been frequently challenged over the past sixty years as conceptions surrounding the practice have changed. Much of the legal discussion concerning solitary confinement has centered on whether or not it constitutes torture or cruel and unusual punishment. While international law has generally begun to discourage solitary confinement’s use in penal institutions, opponents of solitary confinement have been less successful at challenging it within the United States legal system.

International Law
Throughout the twentieth century, the United Nations’ stance on solitary confinement has become increasingly oppositional. International law has reflected this change, and UN monitoring has lead to a major reduction of solitary confinement.

In 1949, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly. Although the Declaration is non-binding, the basic human rights outlined within it have served as the foundation of customary international laws. . The relevance of the Declaration to solitary confinement is found in Article 5, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Thus, if solitary confinement is believed to constitute torture or cruel, inhuman or degrading punishment then the country practicing solitary confinement is violating the provisions set by the UDHR.

The International Covenant on Civil and Political Rights (ICCPR), effective 1976, reiterates the fifth article of the UDHR; Article 7 of the ICCPR identically states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Because the ICCPR is a legally binding agreement, any nation that is signatory to the covenant would be violating international law if it practiced torture or cruel, inhuman or degrading punishment.

At the time that the UDHR and ICCPR were adopted, solitary confinement was not yet believed to constitute torture or cruel, inhuman or degrading punishment. Its practice, therefore, was not believed to violate international law. This changed, however, after the UN definition of torture was outlined in detail in the 1984 Convention Against Torture (CAT). Based on this definition, many members of the UN began to believe that solitary confinement’s detrimental psychological effects could, indeed, constitute cruel, inhuman, or degrading punishment if not torture. . In the years following the CAT, UN representatives “have publicly decried the use of solitary confinement as a violation of the CAT and ICCPR,” as well as the UDHR. .

In more recent years, UN representatives have strengthened their efforts to stop solitary confinement from being used world-wide. . The urgency with which representatives have undertaken these efforts is largely due to the UN Special Rapporteurs on Torture, Manfred Nowak and Juan Méndez. . Nowak and Méndez have both “repeatedly unequivocally stated that prolonged solitary confinement is cruel, inhuman or degrading treatment, and may amount to torture”. . Nowak and Méndez have been especially critical of long-term or prolonged solitary confinement, which they define as lasting fifteen days or more. . Their authority and explicit characterization of solitary confinement as cruel, inhuman, or degrading treatment has led the UN to include long-term to indefinite solitary confinement in the group of practices that violate the provisions outlined in the UDHR, ICCPR, and CAT. Solitary confinement lasting for a short period of time, however, is allowed under international law when used as a last resort, though Nowak, Mendez, and many other UN representatives believe that the practice should be abolished altogether.

United States Law
In the U.S., opponents of solitary confinement have argued (with varying success) that the practice violates prisoners’ Constitutional rights. Despite the long history of litigation over the practice, the Supreme Court has yet to definitively state whether or not solitary confinement is unconstitutional. The Supreme Court considered the constitutionality of long-term solitary confinement only once in the ‘‘Wilkinson v. Austin’’ case. In contrast to the Supreme Court’s inaction, lower courts of the U.S. have imposed constitutional limitations on the use of solitary confinement. Despite such limitations, the federal courts have refused to find that solitary confinement is per se unconstitutional. The U.S. has also effectively “insulated itself from any official sanction for international violations by not submitting to the jurisdiction” of committees that enforce the ICCPR or CAT. The U.S. has also effectively “insulated itself from any official sanction for international violations by not submitting to the jurisdiction” of committees that enforce the ICCPR or CAT.

Eighth Amendment
Since solitary confinement has been designated as “cruel, inhuman, or degrading treatment” under international law, many lawyers have argued that it is also the kind of “cruel and unusual punishment” prohibited by the Eighth Amendment. Proving this to be the case, however, has been a difficult task for attorneys at every level of the court system.

In light of the serious, long-lasting psychological effects solitary confinement can have, inmates have argued that the mental injuries they suffer qualify as “cruel and unusual punishment.” Prison officials contend that placing inmates in prolonged solitary confinement is necessary for various reasons. Some of these reasons include separating violent prisoners from the general population, separating vulnerable inmates (such as juveniles) from others, and punishing those prisoners who attempt to cause riots or try to escape. . Prisoners argue, however, that the nature of these kinds of offenses does not justify the use of solitary confinement; in their eyes “there is simply no strong security need for the total social isolation that exists at some supermax prisons”.

A large portion of the court cases addressing solitary confinement have approached the practice as a violation of Eighth Amendment rights. Courts have generally agreed that solitary confinement is, indeed, a violation of the Eighth Amendment for inmates with preexisting mental illness or juveniles. . However, the Supreme Court concluded that “while there was a risk of serious psychological injury to inmates, that risk was not of ‘sufficiently serious magnitude’ to find a ‘per se’ violation of the Eighth Amendment for ‘‘all’’ prisoners placed in long-term solitary confinement”. .

Showing that solitary confinement constitutes cruel and unusual punishment has proven difficult for inmates and their attorneys. The Supreme Court requires ‘extreme deprivations’ in order to have merits for a ‘conditions-of-confinement claim’ and courts have also held that inmates are only protected against “certain kinds of extreme deprivations” by the Eighth Amendment. In ‘‘Farmer v. Brennan’’, the Supreme Court set two requirements that must be fulfilled in order to challenge solitary confinement as “cruel and unusual”. First, prisoners must show that a “substantial risk of serious harm to inmates” and second, that the prison officials were “deliberately indifferent” to such risk. To prove a prison official’s “deliberate indifference,” the prisoner must “show evidence that the official was ‘actually’ aware of a prisoner’s serious need and chose to ignore it”. Since the psychological impact of solitary confinement is not believed to be “objectively” cruel and unusual within the U.S. legal system, and because it is difficult to establish that prison officials are “indifferent” to prisoner health and safety, inmates and attorneys alleging these two requirements have faced limited success.

The Prison Litigation Reform Act (PLRA) further complicates inmates’ ability to claim that solitary confinement’s psychological damage constitutes cruel and unusual punishment. Section 1997e(e) of the PLRA states that "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury" . . This demonstrates that the Eighth Amendment provides “greater protection” against physical injury than against mental pain. Therefore, unless a prisoner can demonstrate physical injury as a result of solitary confinement, he or she is unable to recover damages for any “mental or emotional injury” the confinement causes. As a result, the Eighth Amendment has not always been proven to be the most effective approach to argue against the practice of solitary confinement.

Due Process and the Fourteenth Amendment
Litigating against solitary confinement on the basis of the Fourteenth Amendment and due process is another less common strategy inmates have used. The Fourteenth Amendment limits the “types of prisoners” that can be placed in solitary confinement and the time the prisoners can be confined. The due process clause within the Fourteenth Amendment also regulates solitary confinement in that prisoners must be given reviews before and during their placement in solitary confinement. Court cases made on these bases do not necessarily address any “underlying problems” of solitary confinement, but they do call for increased monitoring, hearing, and reviews.

Inmates who are placed in solitary confinement “must be accorded meaningful periodic review to ensure that segregation [solitary confinement] is not a ‘pretext for indefinite confinement’”. As Jules Lobel, professor at the University of Pittsburgh School of Law, explains, "When a prisoner is placed in a supermax, the due process requirement of meaningful periodic review requires that his or her behavior be re-evaluated at regular intervals to determine whether supermax confinement is still warranted." Lobel contends that the trend in U.S. supermax prisons is to not submit these reviews at all or to provide a review with a predetermined outcome to keep the prisoner in solitary confinement. If this is indeed the case, then such inmates’ due process rights are violated.

In ‘‘Wilkinson v. Austin,’’ the Supreme Court held that, in addition to the due process right to meaningful review, prisoners also have a due process right to “a statement of the reasons why they were placed or retained at the supermax” so they can better understand how to behave in the future in order to be released from solitary confinement. Lobel argues that this “implies that the officials must provide something more than a general statement that the prisoner is very dangerous”. According to Lobel this is not what usually happens at supermax facilities, so the inmates’ due process rights are violated in this way as well.

In recent circuit court cases, courts have ruled that solitary confinement of 305 days or more constitutes an “atypical and significant hardship” that implicates due process.

Alternative Litigation Techniques
Recognizing that the amount of proof needed to show that solitary confinement violates prisoners’ rights “is simply too high to trigger constitutional protections,” attorneys have started to approach solitary confinement from a different angle. John F. Cockrell, a recent graduate from the University of Alabama School of Law, suggests that those who challenge solitary confinement do so in context of the Americans with Disabilities Act of 1990 (ADA). Cockrell reasons that "When claims under the Eighth and Fourteenth Amendments fail, Title II [of the ADA] may offer an avenue to improve the provision of services to the mentally ill in prisons and solitary confinement, but ipso facto improving the conditions under which all inmates in solitary confinement live."

In the past few years, several internal committees and administrative bodies involved in the United States prison and legal systems have also begun to question solitary confinement’s legality. In June 2012, for example, the US Senate Judiciary Committee held its first hearing on solitary confinement. Likewise, as of 2013, the US Bureau of Prisons has announced that it will conduct its first review of how solitary confinement is used in federal prisons. Additionally, the US Department of Justice found multiple violations of the Constitution and ADA after investigating the use of solitary confinement for mentally ill inmates in two Pennsylvania prisons. The US Immigration and Customs Enforcement Agency (ICE) has also revised segregation procedures for detainees.

Solitary Confinement of Mentally Ill Inmates & Juveniles
Studies have illustrated that mentally ill inmates and juveniles are two groups more severely affected by solitary confinement than other prisoners. As such, the solitary confinement of mentally ill inmates and juveniles has been upheld as cruel and unusual in both international and US courts.

The UN has “expressly prohibit[ed] solitary confinement of juveniles and individuals with mental illness”. The Convention on the Rights of Persons with Disabilities and Convention on the Rights of the Child have played major roles in establishing the UN’s position on solitary confinement of mentally ill inmates and juveniles respectively.

Within the US legal system, too, courts have held that the solitary confinement of the mentally ill is “cruel and unusual”. In fact, David Fathi, Director of the American Civil Liberties Union’s [National Prison Project], found that “every federal court that has considered claims by severely mentally ill prisoners held in solitary confinement has found this treatment unconstitutional”. These court rulings are significant in light of the fact that more than half of the prisoners currently serving jail time in the US are mentally ill according to the US Bureau of Prisons. Furthermore, approximately 30% or more of prisoners in solitary confinement are mentally ill. These rulings have the potential to dramatically change how prisons deal with mentally ill inmates, as prison officials would no longer be able to “warehouse” “difficult” prisoners if they have a preexisting mental illness. It should be noted, however, that these rulings do not guarantee that the mentally ill will not be put in solitary confinement; while they are considered a vulnerable group, these prisoners still have “limited” recourse to the Eighth Amendment.

One landmark case, Madrid v Gomez, challenged the conditions of the Security Housing Unit (SHU) in the Pelican Bay State Prison. The court ruled that the current conditions were not “per se violative of the Eighth Amendment” with respect to all inmates. However, in regard to SHU’s isolation of the mentally ill and the conditions of their solitary confinement, the court found that the prison had violated the Eighth Amendment. Despite it being a landmark case, the rulings of the case have yet to set a trend among cases against other prison systems because SHU’s conditions were known to be more extreme and harsh than other supermax prisons.

Juveniles who are charged as adults and placed in adult prisons are usually put in protective custody, and often the conditions of protective custody are similar to those of solitary confinement. Juvenile justice experts, social scientists, and national correctional standards all agree that solitary confinement is an “ineffective therapeutic tool” that is detrimental to juveniles who are still in an “uncertain, unformed state of social identity”. Given that they are developing mentally and physically, some experts have suggested that “they are severely and permanently damaged by such conditions to a greater extent than adults”.

Actions
The use of long-term solitary confinement, along with other grievances, has triggered organized resistance from prisoners and advocacy groups in the United States. Prisoners in California and elsewhere have launched hunger strikes, citing cruel and unusual uses of solitary confinement as a major reason. Hundreds of prisoners in the United States, acting through the Center for Human Rights and Constitutional Law, have in 2012 filed a petition against solitary confinement at the United Nations. The petition alleges that solitary confinement constitutes torture and should be addressed by the international community.

The 2013 California prisoner hunger strike saw approximately 29,000 prisoners protesting conditions. This state-wide hunger strike reaching 2/3 of California’s prisons began with the organizing of inmates at Pelican Bay State Prison. On July 11, 2011, prisoners at Pelican Bay State Prison began a hunger strike to “protest torturous conditions in the Security Housing Unit (SHU) there”…and to advocate for procedural and policy changes like the termination of the “debriefing process” which forces prisoners “to name themselves or others as gang members as a condition of access to food or release from isolation”. Nearly 7,000 inmates throughout the California prison system stood in solidarity with these Pelican State Bay prisoners in 2011 by also refusing their food. Also in solidarity with the 2011 Pelican Bay prisoners on strike is the Bay Area coalition of grassroots organizations known as the Prisoner Hunger Strike Solidarity coalition. This coalition has aided the prisoners in their strike by providing a legal support force for their negotiations with the California Department of Corrections and Rehabilitations (CDCR) and by creating and running a media based platform to raise support and awareness for the strikers and their demands among the general public. The CDCR’s failure to meet the demands of the Pelican State Bay Prison hunger strikers in 2011 resulted in the aforementioned 2013 California prisoner hunger strike. Similar to the Pelican Bay State Prison hunger strike is the organizing of January of 2011 in the supermax Ohio State Penitentiary, where prisoners Bomani Shakur, Siddique Abdullah Hasan, Jason Robb, and Namir Abdul Mateen began a hunger strike “to protest what they call their harsh mistreatment under solitary confinement”. These prisoners decided to start rejecting their meals until they could be relocated from solitary confinement to death row where their treatment as prisoner would improve. Another example took place in Fall of 2010, when prisoners throughout Georgia’s prison system organized a strike in opposition to violations of the US Constitution 8th amendment protection against cruel and unusual punishment for minute infractions of rules. Inmates throughout the state, in facilities like Rogers State Prison and Hays State Prison engaged in a “self-imposed lockdown” to incite action from the Georgia Department of Corrections in meeting their demands .Similar to other prison strikes demanding systemic change in the policing and policies of prisons like the Pelican State Bay hunger strike, this self-imposed lockdown strike has reached “across multiple facilities and across racial and factional lines”.

Solitary confinement has served as a site of inspiration for protest-organizing against its use in and outside of prisons and conversely, as a response tactic for prisons to react to the protest-organizing of its prisoners. In March of 2014, authorities at the Northwest Detention Center in Washington relegated multiple detainees to solitary confinement units after their participation in protests for the improvement of conditions within the facility and in solidarity with activist organizing against deportation escalations outside of the facility.

Organizing against the use of solitary confinement isn't limited to the work of prisoners subject to or at risk for this treatment. Community organizing outside of prisons has also occurred to shed light on the use of solitary confinement in prisons and work towards its abolition or highly refined use. Free and accessible journals like “Turning the Tide: Journal of Anti-Racist Action, Research, & Education” and web-based projects like solitarywatch.com and the Prisoner Hunger Strike Solidarity Coalition website also work to disseminate information about the use of solitary confinement in prisons and support actions to bring about the end of this practice in prisons.

Dr. Eisenman, a Art History professor and activist, who is involved in many “stop max” movements centered in Illinois, studies solitary confinement and explains its eventual decline. Since the 1800s solitary confinement was practiced in the penitentiary systems and its implementation and popularity at various prisons grew throughout the centuries. The practice of solitary confinement grew partly because of stigmatizing language used to refer to certain prisoners like ‘the worst of the worst,’ which became a form of “self-justifying the logic of torture”. Yet, as the use of solitary confinement progressed, public discourse around solitary confinement transitioned from a legitimate form of punishment to torture. Because many prisoners in solitary confinement suffered severe mental and physical illnesses, Eisenman describes that by the end of the nineteenth century “prisoner isolation and sensory deprivation were widely understood to be forms of torture”. Therefore, human rights groups condemned the use of solitary confinement or ‘supermax’ systems, and national and local ‘stop max’ movements have initiated in America and worldwide to stop the use of solitary confinement. There are many radical American organizations campaigning and advocating for prisoners' rights and against solitary confinement.