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Brandeis University Law Journal 2023-2024, Volume 11

A Proposal to Reform the Practice of Solitary Confinement

Kaia Minkin265

Solitary confinement is a desolate prison within the
penitentiary itself. Extreme isolation in a cell barely equipped
to house human life manipulates the psyche of the prisoner and
works to achieve a dehumanizing experience in the name of the
penological interest of the state. It is common for individuals
in solitary confinement to endure decades alone in windowless
cement rooms the width of a king-sized bed, listening to the
echoing cries of other inmates. While some policymakers and
correction officers argue that the practice of solitary
confinement for extended periods maintains the safety of staff
and the other prisoners, the harmful mental toll taken on the
inmate is an inappropriate bargain against the protections
demanded by the Eighth Amendment for law enforcement to
take.

The Eighth Amendment to the United States
Constitution states: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.”266 The cruel and unusual component of the Eighth
Amendment is shrouded in ambiguity, as what it means for a
punishment to be cruel is anything but obvious. In order to
establish a “cruel and unusual punishment” violation of the
Eighth Amendment, the appellate must demonstrate: an
“objectively, sufficiently serious act or omission resulting in
the denial of necessities; a culpable state of mind on the part of
prison officials amounting to deliberate indifference to his
health and safety; and that he has exhausted the
prisoner-grievance system and that he has petitioned for relief

266 U.S Const. Amend. VII § 2.
265 Brandeis University Undergraduate, Class of 2025

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under Article 138, UCMJ.”267

Studies delineating a link between the experience of
social pain and an adverse impact on the mental well-being of
incarcerated individuals have been perpetually replicated. The
results confirm the detrimental consequences of living in
isolation. The harm incurred by an inmate, derived because of
prolonged isolation, manifests in emotional, cognitive, and
psychosis-related symptoms.268 Solitary confinement was
designed to encourage inmates to feel proper repentance, but a
shift in paradigm has led to a devastating, exacerbated
psychological impact on mentally ill.269 Social isolation,
idleness, and lack of control over aspects of daily life—all
phenomena maximized by the practice of solitary
confinement—incite rapid, dramatic psychological
deterioration in inmates with mental illness. This mental
deterioration, including maladaptive social tendencies and
socially inept behaviors, can also manifest as extreme acts of
self-harm or suicide.270 In one Indiana supermax facility,
Wabash Valley Correctional Facility Secured Housing Unit, a
prisoner with mental illness committed suicide by
self-immolation, and another man choked himself to death
with a washcloth.271 A mentally ill adolescent incarcerated in a
New York supermax facility told Washington Post reporter Ian
Kysel she attempted to hang herself within the first 24 hours of

271 Karin Grunden, Man found hanging in cell at Wabash Valley
Correctional Facility, TERRE HAUTE TRIBUNE-STAR, Oct. 1, 2003.

270 Id, at 8.

269 ACLU (2014) The Dangerous Overuse of Solitary Confinement in the
United States, Briefing Paper - American Civil Liberties Union. Available
at: https://www.aclu.org/sites/default/files/assets/stop
solitary_briefing_paper updated_august_2014.pdf?source=post_page at 6.

268 Shalev, S. (2008). The health effects of solitary confinement. In
Sourcebook on solitary confinement. Retrieved from
http://solitaryconfinement.org

267 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm.

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solitary confinement.272These few instances, among the
thousands of stories that exist, encapsulate the severe
psychological trauma affecting mentally ill individuals in
solitary confinement.

Extensive social neuroscience research on the impact of
environmental and social deprivation on the brain exists as
another avenue of challenging the constitutionality of solitary
confinement.273 The results of this research attest to the vital
importance of social interaction and stimulating environment
on brain function, as studies have revealed brain deterioration
imparted by isolation in restrictive housing units within only a
couple of days.274 Despite overwhelming evidence of the social
pain induced through solitary confinement, the Supreme Court
refuses to recognize that this mental harm caused is
sufficiently “cruel” to be considered a violation of the Eighth
Amendment.275 With these standards in place, the Court has
been generally unwilling to recognize that the psychological
harm incurred from extreme isolation is sufficient to constitute
a violation of the Eighth Amendment.276

The Court’s neglect of the generalized demand for
effective clinical support for mentally ill individuals suffering
in isolation units stems from two fundamental discrepancies
pertaining to basic human needs. The first is a tendency to
dismiss social interaction as a basic human necessity, as

276 Coppola, supra note 273.

275 Claire A. Nolasco et al., Construing the Legality of Solitary
Confinement: Analysis of United States Federal Court Jurisprudence, AM.
J. CRIM. J. (2018). DOI: https://doi.org/10.1007/s12103-018-9463-5

274 Id.

273 Federica Coppola, THE BRAIN IN SOLITUDE: AN (OTHER) EIGHTH AMENDMENT

CHALLENGE TO SOLITARY CONFINEMENT JOURNAL OF LAW AND THE BIOSCIENCES

(2019)

272 Ian Kysel, SOLITARY CONFINEMENT MAKES TEENAGERS DEPRESSED AND

SUICIDAL. WE ... THE WASHINGTON POST (2015),
https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-co
nfinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/

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deprivation of human needs is interpreted in terms of concrete
physical demands such as nutrition and sanitation.277 This
myopic interpretation disregards psychological health as a
human need and highlights the immense underestimation of
the adverse mental effects of isolation. The ethical dimension
of cruelty in punishment remains important within the
parameters of basic human needs, and underpins the argument
that current solitary confinement conditions meet the
“substantial risk of physical harm” stipulation of the objective
prong of the conditions standard. The mental, physical, and
physiological harms imposed by the conditions of solitary
confinement are on par with physical risk involved in
starvation and sleep deprivation.278 Therefore, although the
harm of socio-environmental deprivation may translate into
mental deterioration, the damage to the confined individual’s
psyche is ultimately due to physical harm to the brain similar
to the damage done by starvation.279

As Aristotle notably wrote in The Politics, “a social
instinct is implanted in all men by nature.”280 Over two
thousand years later, the disciplines of neuroscience and
behavioral psychology have produced immense empirical data
establishing that the human psyche is biologically rooted in the
need to be connected.281 This social connection is as critical to
a truly human life as food and water is to survival, and
mentally ill or cognitively impaired individuals in solitary
confinement should be afforded this fundamental need.
Eliminating all social and environmental stimulation of

281 Coppola, supra note 273.
280 Aristotle, Politics 5 (Benjamin Jowett trans., 1999)

279 Bennion, Elizabeth (2015) "Banning the Bing: Why Extreme Solitary
Confinement Is Cruel and Far Too Usual Punishment," Indiana Law
Journal: Vol. 90: Iss. 2, Article 7.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6813937/#fn223,

278 Id.
277 Id.

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incarcerated individuals is to deprive them of a basic human
need and to impose a substantial risk of neurological,
physiological, and psychological deterioration. Complete
isolation involved in current solitary confinement practices
risks inflicting unnecessary suffering, characterized by
debilitating, and potentially permanent consequences. A
punishment that entails unwarranted and possibly permanent
damage through deprivation of basic human necessities fails to
meet contemporary standards of societal decency, and should
not be institutionalized in practice. The Court has stated that
the interpretation of the “cruel and unusual punishment” aspect
of the Eighth Amendment changes in tandem with the
knowledge of an evolving society, and a civilized society
should not tolerate the infliction of unnecessary pain on
another human being.282

The second reason for this neglect is the dualistic
perception of harm endorsed in principle by U.S. law.283 This
entails the separation of physical harm from mental suffering,
creating a hierarchy of pain in which mental suffering is
subjective and less important than physical ailments. As a
result of this distinction, social interaction falls outside of the
spectrum of constitutionally protected human needs. This has
led courts to dismiss cases of mental harm without evidence of
physical distress.284 This judicial deference and unwillingness
of the Court to intervene in the methods of inmate discipline
and introduce uniform regulations to mitigate psychological
harm incurred from solitary confinement was exemplified in
the case of Scarver v. Litscher.285

In this case, the Seventh Circuit acknowledged that the
plaintiff, who was repeatedly banging his head against the
walls of his cell, had endured substantial psychological distress

285 Scarver, 434 F.3d 972, at 976.
284 Id.
283 Coppola, supra note 273.
282 Trop, 856 U.S. 86, at 101.

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as a result of placement in solitary confinement. However, in
2006, the Supreme Court remained hesitant to interfere with
correctional management in prisons and deferred to the prison
administration to defend a legitimate penological interest in
enforcing solitary confinement.286 Often, judicial analysis of
whether a punishment is cruel and unusual lacks scrutiny of
the conditions of supermax facilities.287 Supermax prisons do
not have a single definition, but their essence is complete
social isolation, deprivation of all environmental stimulation,
and enforced idleness.288 These qualities of an impoverished
social environment are enforced only upon the individuals held
in solitary confinement within one of these facilities. The
Supreme Court defined the foundation of the penological
evaluation of solitary confinement conditions as the “effect
upon the imprisoned”289 and that “deference to the findings of
state prison officials in the context of the Eighth Amendment
would reduce that provision to a nullity in precisely the context
where it is most necessary.”290 This tendency of courts to show
deference to state prison officials risks the penological interests
of prison administrations superseding the well-being of
incarcerated individuals. The Supreme Court has stated that
constitutional protections relating to the conditions of
confinement derive from the acknowledgment that inmates
retain the dignity inherent in all humans.291 Additionally, the
Court has established that only “extreme deprivation”
adequately supports a condition of confinement claim, and this
requirement is met when the socio-environmental deprivation

291 Brown v. Plata, 563 U.S. 493, 510 (2011)
290 Johnson v. California, 543 U.S. 499, 511
289 Rhodes, 452 U.S. 337, at 364.

288 David C Fathi, THE NEW ASYLUM: SUPERMAX AS WAREHOUSE FOR THE

MENTALLY ILL PRISON LEGAL NEWS (2007),
https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm
ax-as-warehouse-for-the-mentally-ill/

287 Id.
286 Coppola, supra note 273.

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of solitary confinement denies “the minimal civilized measure
of life’s necessities.”292 Therefore, the punishment of extreme
isolation deprives a human of basic human needs. It involves
the infliction of unnecessary pain, and is therefore
incompatible with the concept of human dignity as it exists in
civilized society today.

Inmates who endure substantial mental harm within
prison conditions are further burdened by the subjective prong
of proving that prison officers were indifferent to their
suffering.293 This subjective prong of the conditions standard
refers to the prison official’s culpable state of mind and the
requirement of proof that substantial risk to an inmate’s health
and safety was disregarded.294 The decision of Farmer
established the parameters of the prison official’s culpability,
as the Court held that deliberate indifference is equivalent to
subjective recklessness.295 While this test of deliberate
indifference remains individualized to each solitary
confinement case, the Court in Farmer also recognized that
some risks of harm are objective such that “a fact finder may
conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.”296 The challenge of
proving prison official’s knowledge of the incurred mental
harm became instrumental in cases regarding solitary
confinement conditions, and establishing this deliberate
indifference may rely on circumstantial evidence that the risk
was known and ignored.

Proving the deliberate indifference of prison officials
constitutes an obstacle to challenging objectively harmful
conditions of supermax facilities, particularly in cases

296 Id, at 842
295 Farmer, 511 U.S. 825, at 839
294 Id.
293 Coppola, supra note 273.
292 Rhodes, 452 U.S. 337, at 347

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involving mentally ill incarcerated individuals.297 Due to the
lack of mental health training for prison officials, prison
administrations may avoid liability by claiming to have no
knowledge of the symptoms or risks of mental illness.298 This
creates the perverse incentive for prison staff; subpar
knowledge of mental illness facilitates an avoidance of
Constitutional responsibility as this condition stands. In light
of the questionability of the subjective prong condition in
solitary confinement litigation, the court should consider if the
condition of extreme social isolation itself is sufficient to
warrant a presumption of intentional disregard of prison
administrations.

The personal testimonies of incarcerated individuals
confined in restrictive cells paired with the research of the
psychological harm imposed by prolonged social isolation
demonstrates the need for reevaluation of what qualifies as an
essential condition of human life. The Court should place more
emphasis on social interactions among incarcerated individuals
and the prison staff, and introduce regulations for solitary
confinement which comport with constitutionally afforded
protections for mentally ill inmates. Recent state reforms
provide new insight into the impact of reforming solitary
confinement and show a consensus that recognizes the need for
change.299

299 Jessica Sandoval, J. (2023, March). How solitary confinement
contributes to the mental health crisis. National Alliance on Mental Illness.
https://www.nami.org/Blogs/NAMI-Blog/March-2023/How-Solitary-Confin
ement-Contributes-to-the-Mental-Health-Crisis#:~:text=Among%20many%
20other%20mental%20health,of%20an%20acute%20mental%20illness.

298 Lori Marschke, Proving Deliberate Indifference: Next to Impossible for
Mentally Ill Inmates, VALP. U. L. REV. 487 (2004)

297 Coppola, supra note 273.

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I. Arguments Against Unlimited Use of Solitary
Confinement

Through testimonial accounts, hundreds of inmates in
solitary confinement have attested to the devastating cognitive
effects of isolation, such as perceptual distortions and
hallucinations, increased anxiety and depression, fantasies of
revenge on society, and other aspects of mental pain.300 The
effects of isolation also manifest in decreased cognitive
function, as a decline in brain activity was found in inmates
incarcerated in solitary confinement for only seven days.301

When the only social stimulation available is sporadic
conversations with guards and officers, sentiments of
humiliation and meaninglessness compound to damage the
mental well-being and neurological health of the prisoner.

Technological advancements such as video
surveillance and virtual platforms of communication have
eliminated even that fleeting human contact, facilitating a
method of further isolation that was unforeseen in the earlier
stages of prison development.302 For example, in decades past,
individuals in solitary confinement were able to regularly see
and interact with human guards as they made their rounds. As
technology developed and was integrated into the surveillance
mechanisms of supermax prisons, even fleeting social contact
is revoked for inmates in solitary confinement. In a 2007 study
conducted by the Red Cross, the clinical impacts of isolation in
solitary confinement were compared to those of physical
torture, revealing similarities in negative psychological and

302 David C Fathi, THE NEW ASYLUM: SUPERMAX AS WAREHOUSE FOR THE

MENTALLY ILL PRISON LEGAL NEWS (2007),
https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm
ax-as-warehouse-for-the-mentally-ill/

301 Paul Gendreau, N.L. Freedman, G.J.S. Wilde & G.D. Scott, Changes in
EEG Alpha Frequency and Evoked Response Latency During Solitary
Confinement, 79 J. of Abnormal Psychol. 54, 57–58 (1972)

300 Coppola, supra note 273.

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physiological reactions.303

The socio-environmentally deprived conditions of
isolation cells bear a devastating toll on the psychological
well-being of those they confine. Hardened by psychological
and physical abuse by prison administrations maximizing
control of an individual, inmates have expressed suicidal
ideation merely for the chance of an escape.304 Correctional
officers frequently misuse physical restraints and chemical
agents as disciplinary measures, and the isolated nature of
solitary confinement units render detection of staff abuse much
more difficult.305 The apathetic attitude of prison
administrations to this mistreatment facilitates its practice, and
the negative psychological effects of social deprivation are
further intensified with this abuse. As stated by a California
State prison psychologist in 2002, “It’s a standard psychiatric
concept, if you put people in isolation, they will go insane. . . .
Most people in isolation will fall apart.”306

The claim that solitary confinement cells harbor only
the “worst of the worst,” most threatening criminals who were
convicted of heinous crimes or assaulted other inmates while
incarcerated does not realistically reflect the practice of solitary
confinement. Mentally ill individuals are disproportionately
represented in restrictive housing facilities, and prison officials
across the U.S. fill solitary confinement cells with inmates who
pose any difficulty to management, whether that be a violation
of minor prison rules or launching a lawsuit against the prison

306 Human Rights Watch, Ill-Equipped: U.S. Prisons And Offenders With
Mental Illness 149 n. 513 (2003).

305 Reyes, supra note 303.

304 Calloway, K. (2023, February 27). I spent 16 months in solitary
confinement and now I’m fighting to end it: ACLU. American Civil
Liberties Union.
https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi
nement-and-now-im

303 Dr. Hernàn Reyes, The Worst Scars Are in the Mind: Psychological
Torture, 89 Int’l Rev. Red Cross 591, 607 (2007)

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administration.307 If prison administration guidelines upheld
this exclusivity and supermax facilities were restricted to only
the most predatory, solitary confinement cells would stand
virtually empty.308 Nationwide data documenting the use of
solitary confinement in prisons in the U.S. estimates that as of
July 2021, 48,000 individuals are confined in their cells for at
least twenty two hours a day for a minimum of fifteen days.309

While this statistic has decreased from the 100,000 individuals
housed in solitary confinement in 2014, the population of
inmates confined in restricted housing among the two million
individuals in state and federal prisons is massively
unbalanced.310

A 2003 report based on data from state prisons
throughout the U.S. by Human Rights Watch found one-third to
one-half of inmates in solitary confinement cells to be mentally
ill.311 Cognitively impaired and mentally ill individuals who
struggle to comprehend and abide by strict prison regulations
without treatment garner reputations as troublesome inmates,
and are cast aside in solitary confinement cells.312 This
facilitates a destructive cycle in which mentally ill inmates are
misinterpreted as willfully defiant by under-trained prison staff
and are subjected to prolonged periods of disciplinary

312 Fathi, supra note 302.

311 Zoltan Lucas, LOCKING DOWN THE MENTALLY ILL THE CRIME REPORT (2010),
https://thecrimereport.org/2010/02/18/locking-down-the-mentally-ill/

310 Wendy Sawyer & Peter Wagner, MASS INCARCERATION: THE WHOLE PIE

2023 PRISON POLICY INITIATIVE (2023),
https://www.prisonpolicy.org/reports/pie2023.html (last visited Dec 9,
2023).

309 Correctional Leaders Association, NATIONWIDE REPORT FINDS REDUCTION IN

REPORTED USE OF SOLITARY CONFINEMENT YALE LAW SCHOOL (2022),
https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-repor
ted-use-solitary-confinement#:~:text=Time%2DIn%2DCell%3A%20A,for
%2015%20days%20or%20more.

308 Fathi, supra note 302.
307 ACLU supra note 269, at 9.

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segregation in solitary confinement cells.313 This “willful
defiance” perceived by the prison administration is unfounded,
as the psychological damage inflicted by the conditions of
solitary confinement alongside pre-existing mental illness
compromises the cognitive and affective abilities of the
inmates.314 These cognitive and affective capacities are what
contribute to logical reasoning and decision-making, and
solitary confinement promotes the further atrophy of inmate
ability to comprehend and respond to the emotions of others.
The maladaptive psychological processes and anti-social
behavior patterns identified as risks of confinement in isolation
units will continue to comprise the individual's social
functioning, and the rehabilitation process intended in solitary
confinement is rendered ineffective.

Inmates with poor mental health are more susceptible to
conflict within the prison community and demonstrate
increased rates of misconduct and assault. This increases the
existing threat to inmates and law enforcement within the
prison walls, as complete social isolation of mentally ill
inmates only exacerbates symptoms of psychiatric distress.315

Along with compromised security, rampant mental illness
among inmates demands more from already scarce resources,
increasing the limited budgets of correctional facilities to offset
the pressure put on correctional officers in deprived prisons.316

The alternative solution to prison security maintenance relies
on mitigation of the most oppressive features of supermax
facilities. This step toward reform has been found to be
effective. For example, a state prison in Washington

316 Kim KiDeuk, Becker-Cohen Miriam, Serakos Maria. 2015. The
Processing and Treatment of Mentally Ill Persons in the Criminal Justice
System. Washington, DC: Urban Institute.

315 Lucas, supra note 311.

314 William Heirstein Et Al., Responsible Brains: Neuroscience, Law, and
Human Culpability 222–24 (2018).

313 Lucas, supra note 311.

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experienced a dramatic decrease in violence and the use of
punitive force following increased staff interaction with
inmates and introduction of communal activities.317

The overproduction and overuse of supermax facilities,
or prisons containing solitary confinement housing units, has
also led to fiscal consequences for the entire federal prison
institution.318 Supermax facilities are three times more
expensive to build and operate compared to maximum-security
prisons. This fiscal strain was evident in a 2009 study revealing
that criminal correction spending exceeded budget growth in
all areas of federal and state spending except for Medicaid.319

When mentally ill inmates are held in an overcrowded prison
system that is simultaneously seeking to occupy expensive
solitary confinement cells, these individuals are often
transferred to isolation housing.320

The argument that placing certain inmates in solitary
confinement protects other prisoners and officers from danger
is cast into grave doubt by the fact that their complete seclusion
from other inmates further impairs mental and social
capabilities, increasing their risk of misconduct.321 Isolation
exacerbates inmates’ existing mental illnesses and increases the
threat posed to the rest of the prison community.322 Only five
percent of inmates housed in solitary confinement remain there
permanently, and thus facilitating effective reentry into the

322 Edgemon, T. G., & Clay-Warner, J. (2019). Inmate Mental Health and
the Pains of Imprisonment. Society and Mental Health, 9(1), 33–50.
https://doi.org/10.1177/2156869318785424

321 ACLU supra note 269, at 9.
320 Id.

319 Solomon Moore, Study Shows High Cost of Criminal Corrections, N.Y.
TIMES, Mar. 3, 2009, at A13.

318 Fellner Jamie. 2006. “A Conundrum for Corrections, a Tragedy for
Prisoners: Prisons as Facilities for the Mentally Ill.” Washington University
Journal of Law & Policy 22:135–44

317 Rhodes, at 192–193.

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greater prison population is essential.323 The American
Psychological Association reports that forty-five percent of
federal prisoners experience mental health issues. Furthermore,
with over two million people incarcerated in the United States,
a tremendous number of mentally ill inmates suffer in an
environment devoid of psychological treatment.324

The extreme security measures maintained in supermax
units render adequate therapy sessions and mental health
assessments unavailable. Intensified security measures entail
being fed through a slot in a door, denial of physical or social
contact, and a lack of access to medical services afforded to
inmates within the greater prison population.325 The only
available therapy for individuals in solitary confinement cells
consists of conversations through a steel door, surrounded by
other prisoners and officers.326 The inability to receive intimate
and personal therapy in solitary confinement makes the
available treatment largely ineffective. The withholding of
effective therapy to inmates with mental illness in supermax
facilities, coupled with the devastating impact of social
isolation lays bare the substantial argument that solitary
confinement of mentally ill inmates violates the Eighth
Amendment.327 Those that argue this suggest that ensured

327 Id.
326 ACLU supra note 269, at 9.
325 Sandoval, supra note 299.

324 Taylor, E. (n.d.). Mental Health and Reentry: How Court Services
Offender Agency Meets the Challenge of Mental Health Community
Supervision.
https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#:
~:text=Approximately%20half%20the%20people%20in,path%20for%20pri
soners%20returning%20home.

323 Timothy Hughes & Doris James Wilson, Reentry Trends in the United
States, U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Statustics (2004), available at
http://www.bjs.gov/content/pub/pdf/reentry.pdf (reporting that 95% of all
state prisoners will eventually be released).

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psychological decline of mentally ill prisoners paired with a
lack of treatment renders the practice of total social isolation
cruel and unusual as understood in the context of the Eighth
Amendment. As aforementioned, to establish a “cruel and
unusual punishment” violation of the Eighth Amendment, the
appellate must demonstrate: an “objectively, sufficiently
serious act or omission resulting in the denial of necessities; a
culpable state of mind on the part of prison officials amounting
to deliberate indifference to his health and safety; and that he
has exhausted the prisoner-grievance system and that he has
petitioned for relief under Article 138, UCMJ.”328 The human
neurobiological demand for social interaction is complemented
by environmental stimulation, both contributing to proper brain
function and behavior. Thus, the social and environmental
stimulation deprived in solitary confinement is to deprive
incarcerated individuals with the conditions necessary for
physiological brain function, and thus the very nature of
themselves. In acknowledging the vital importance of human
interaction and environmental stimulation is an implication that
forcing inmates into six by eight feet cells in complete isolation
is sufficient per se to deprive them of basic human needs.329

Courts have endorsed the view that solitary confinement
conditions are legitimate as long as they guarantee the same
basic necessities afforded to the general prison population.330

However, this notion of equivalence disregards the fact that
extreme socio-environmental isolation is the condition that
renders the difference between solitary confinement and
confinement in the general prison. Extreme isolation deprives
inmates in solitary confinement of a biological based need that
is provided to the general prison population, and social
interaction should be regarded as a basic need rather than a

330 Hutto 437 U.S. 678, at 686.
329 Coppola, supra note 263.

328 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm

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mere privilege.
With the vast amount of evidence attesting to the

harmful psychological effects of solitary confinement, the
detriment to larger policy goals of prisons has become a
pertinent topic of conversation. As a result, a reevaluation of
the legitimacy of current solitary confinement practices is now
in progress.331 Federal courts have called into question whether
the placement of mentally ill inmates in restrictive housing
constitutes cruel and unusual punishment.332 The U.S. Senate
held its first congressional meeting to discuss the use of
isolation measures in prisons in June 2012 and discussion is
ongoing.333 Several other influential organizations, such as the
American Civil Liberties Union, American Bar Association,
and National Alliance of Mental Illness, also vouch in
opposition to the use of solitary confinement.334 Since 2021,
state-level efforts to regulate use of solitary confinement have
increased with two hundred fifty-eight pieces of proposed
legislation filed across forty-one states, the majority seeking to
wholly eliminate some of the aforementioned components of
the practice.335

Alongside state reform efforts and discussion of the
depravity of solitary confinement conditions within federal
courts, nationwide polling data demonstrates widespread
bipartisan support for restrictions on the practice of complete
isolation in prisons.336 This evidence of limited political
resistance minimizes deterrence for legislation, and functions
as the foundation for constructive reform. Legislators and
advocates for the regulation of solitary confinement practices
are poised for genuine improvement, but some prison

336 Id.
335 Sandoval, supra note 299.
334 Id.
333 Bennion, supra note 279.
332 Id.
331 Sandoval, supra note 299.

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administrations and a widespread judicial hesitancy to interfere
with prison security deter change. Corrections officers and
policy makers who consider solitary confinement an effective
strategy to promote order in the prison system maintain that the
potential benefits of solitary confinement to the individual
inmate, other inmates, and prison staff counterbalances the
adverse effects linked with stays in isolation.337 This stance of
penological interest is implicitly supported by the Court’s
exercise of judicial deference to solitary confinement
management and condition regulations which prison officials
deploy.338 Despite the lack of established criteria to assess the
penological interest of a prison in solitary confinement
litigation, Courts often have “deferred to prison officials when
they claim that a particular condition or treatment is
necessary.”339 This notion posits that prison administrations and
officials, who lack required mental health training, have a more
accurate sense of which individuals are in need of additional
psychological treatment.340 Maintaining this skewed
perspective on the expertise of prison officials creates a
considerable barrier in solitary confinement litigation cases
where conditions of isolation pose a risk of substantial harm
which should trigger Eighth Amendment protections.

If an inmate without psychological illness is isolated in
confinement, the harm to their psyche resulting from a solitary
holding cell is enough to induce mental impairment.341 Recent
studies delineate the lasting detrimental effects of solitary
confinement on the mental status of the individual,
corroborating the notion that solitary confinement leads to the

341 Taylor, supra note 314.

340 Lea Johnston, Conditions of Confinement at Sentencing: The Case of
Seriously Disordered Offenders, 63 CATH. U. L. REV. 625, 626 (2014)

339 Rhodes, 452 U.S. 337, at 364.

338 Id.
337 Coppola, supra note 263.

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development of acute mental disorders.342 These mental
disorders often manifest among incarcerated individuals as
difficulties with impulse control, feelings of hostility and
mania, and severe anxiety and depression.343 Individuals
without documentation of previous mental illness are found to
become symptomatic with ranging severity after just brief stays
in solitary confinement, and the negative psychological impact
of isolation affects post-release outcomes of inmates.344

The persisting detriment inflicted by extended time in isolation
can be fatal. Research identifies a correlation between time
spent incarcerated in restrictive housing and an increased risk
of death within the first year following release.345 Individuals
previously incarcerated within solitary confinement units are
overall twenty-four percent more likely to die within the first
year after release, including seventy-eight percent greater risk
of suicide within that demographic.346 The psychological and
physical destitution induced through confinement in supermax
sections of prisons not only fuels a disproportionately high rate
of mental illness and self-harming tendencies compared to the
general prison population, but also manifests in other
symptoms, including social isolation, loss of identity, and
sensory hypersensitivity.347 Mental illness originating from an

347 Reiter K, Ventura J, Lovell D, Augustine D, Barragan M, Blair T,
Chesnut K, Dashtgard P, Gonzalez G, Pifer N, Strong J. Psychological
Distress in Solitary Confinement: Symptoms, Severity, and Prevalence in
the United States, 2017-2018. Am J Public Health. 2020

346 Id.
345 Corcoran, supra note 343.

344 Dean, J., & June 16, 2020. (2020, June 16). Short stays in solitary can
increase recidivism, unemployment. Cornell Chronicle.
https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-re
cidivism-unemployment.

343Mary Corcoran, Effects Of Solitary Confinement On The Well Being Of
Prison Inmates APPLIED PSYCHOLOGY OPUS,
https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement
-on-the-well-being-of-prison-inmates/

342 Sandoval, supra note 299.

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inmate’s experience in solitary confinement further prevents
them from a successful reentry into society, ultimately posing
an even greater impact on the larger population.348

Amongst the chilling accounts of solitary confinement
published, Kiana Calloway details his devastating experience
of entering “Camp J.”349 Camp J is a Louisiana prison noted for
its severe lockdown units, and Calloway was confronted with
this stark image of what the rest of his life would be like when
he entered the prison at only seventeen years of age in 2019.350

Entering Louisiana State Penitentiary, Calloway was sentenced
to solitary confinement for twenty-three hours a day for sixteen
months. Struggling to retain his humanity under the torturous
“23 and 1” regime, he languished in an environment
constructed to maximize control over the individual and
minimize the sense of self. Amidst the twenty-three hours a
day spent within the perpetually lit cell, Calloway describes a
single hour where a phone call or shower was permitted.351

Deprived of educational or vocational programs, inmates are
reduced to sitting in their cells listening to the anguished cries
of neighboring prisoners who are also suffering the effects of
long-term solitary confinement.352 Testifying on the
consequences of prolonged isolation, Calloway states, “It’s
been 22 years since my time in solitary and 8 years since my
release from prison, but I still have flashbacks and nightmares.
Even when I’m with someone else, I find myself secluded in

352 Id.
351 Id.
350 Id.

349 Calloway, K. (2023, February 27). I spent 16 months in solitary
confinement and now I’m fighting to end it: ACLU. American Civil
Liberties Union.
https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi
nement-and-now-im

348 Taylor, supra note 324.

Jan;110(S1):S56-S62. doi: 10.2105/AJPH.2019.305375. PMID: 31967876;
PMCID: PMC6987940.

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my own mind. I call it being psychologically incarcerated.”353

Calloway, who maintains his innocence, was initially
convicted on two counts of first degree murder by a
non-unanimous jury, receiving two life sentences without the
possibility of parole and was immediately confined in a
supermax facility. However, Calloway received an additional
trial once it was revealed that the initial judge prohibited him
from calling certain witnesses and neglected to require the
prosecution to turn over two witness statements. His sentence
was reduced to thirty four years in the general prison
population.354 Kiana Calloway is now an advocate for the Voice
of the Experience (VOTE) organization, a foundation created
in New Orleans by formerly incarcerated individuals, that
strives for the reformation of the Louisiana Department of
Corrections disciplinary procedures in prison.355 The complete
prohibition of access to education in the name of discipline is
another manifestation of the ineffective policies surrounding
solitary confinement in U.S. prisons.

Alongside the development of psychological and
physical conditions from complete isolation, the increase in
suicide rates and self-harm of inmates in solitary confinement
has been repeatedly acknowledged and verified. Dr. Stuart
Grassian, a practicing psychologist on the faculty of Harvard
Medical School for over twenty five years, encapsulates the
devastating psychiatric effects of solitary confinement by citing

355 Frances Madeson et al., LOUISIANA HUNGER STRIKERS - ALREADY IN SOLITARY

- ARE BEING BRUTALLY PUNISHED TRUTHOUT (2021),
https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-are-
being-brutally-punished/ (last visited Nov 28, 2023).

354 Hutchinson, P. (2023, November 28). Louisiana considers education
access for the incarcerated - including those on Death row. News From The
States.
https://www.newsfromthestates.com/article/louisiana-considers-education-a
ccess-incarcerated-including-those-death-row#:~:text=One%20task%20forc
e%20member%2C%20Kiana,count%20of%20feticide%20in%201997.

353 Id.

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testimony from an individual confined in California’s Pelican
Bay state prison.356 By 2011, Pelican Bay had showcased
widespread, unregulated utilization of isolation in segregated
units for over a decade, affecting approximately forty-five
percent of inmates.357 The incarcerated individual described in
Dr. Grassian’s testimony, lacking previously documented
psychiatric disorders, emerged from restrictive housing
afflicted with severe mental illness arising from the trauma he
endured.

Dr. Grassian states that the individual became “overtly
psychotic and suicidal.”358 At one point, the inmate resorted to
writing a suicide note in his own blood and confessed to the
doctor, “I'm tired of people talking in my head. I was mentally
clear before . . . sometimes I get so confused, I don't even know
what's going on.”359 Through research and personal contact
with many formerly and currently incarcerated individuals, Dr.
Grassian established a specific psychiatric disorder called
Security Housing Unit (SHU) Syndrome, giving a name to the
distress arising from periods in solitary confinement.360 The
practice of prolonged solitary confinement manifests as a
psychological detriment to those it confines, having the power
not only to aggravate pre-existing mental illnesses but to create
them.

In 2017, The Department of Justice guidelines
recognized that extreme isolation causes mentally ill inmates'
already fragile psychiatric conditions to decline, which led to
the launch of reform bills that advocated for limiting the use of

360 Sandoval, supra note 299.
359 Id.
358 Id.

357 Tiana Herring, THE RESEARCH IS CLEAR: SOLITARY CONFINEMENT CAUSES

LONG-LASTING HARM PRISON POLICY INITIATIVE (2020),
https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ (last
visited Nov 28, 2023).

356 ACLU, supra note 269.

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solitary confinement in American prisons.361 Fueled by the
recognition of the substantial risk of psychological harm
imposed by solitary confinement practices, a profusion of bills
were introduced between 2018 and 2023.362 These bills aimed
to create reporting and oversight mechanisms to increase
transparency of the inner workings of incarceration and
regulate solitary confinement through legislation. However,
only 29 states enacted these bills.363 While ideas for reform
circulate to regulate the practice, solitary confinement, as a
form of security maintenance, in lieu of mental health
treatment must be eliminated. Although maintaining order and
safety within the prison and psychological treatment for
mentally ill inmates are not mutually exclusive, the current
practice of punitive isolation without access to psychological
therapy does not achieve the goal of security. Moreover,
restricting the use of solitary confinement is linked to a decline
in prison misconduct.364 Corroborating this phenomenon, a
reduction in the number of inmates in solitary confinement has
resulted in a decline in prison violence in Michigan.365 When
all isolation cells rates of violence in Mississippi prisons
plummeted by seventy percent when all isolation cells were
removed.366

366 Terry A. Kupers et al., Beyond Supermax Administrative Segregation:
Mississippi’s Experience Rethinking Prison Classification and Creating

365 Jeff Gerritt, Pilot Program in UP Tests Alternatives to Traditional Prison
Segregation, DETROIT FREE PRESS, January 1, 2012, available at
www.frep.com/fdcp/?unique=1326226266727.

364 ACLU, supra note 269.

363 Banning Torture: Legislative Trends and Policy Solutions for Restricting
and Ending Solitary Confinement Throughout the United States, Unlock the
Box Campaign, January 2023.

362 Sandoval, supra note 299.

361Report and recommendations concerning the use of restrictive housing.
The United States Department of Justice. (2017, March 13).
https://www.justice.gov/archives/dag/report-and-recommendations-concerni
ng-use-restrictive-housing

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Theories supporting the use of solitary confinement
emphasizes its capacity to deter future crime among inmates,
however, empirical evidence in supermax prisons does not
comport with this notion. When comparing the recidivism rates
of inmates released from solitary confinement versus the
normal prison population, there is an increased risk of
recommitting a violent crime among those confined in
isolation.367 This increased risk of recidivism is largely rooted
in the adverse psychological symptoms imposed by
confinement in isolation cells, and present risk factors for
socially dysfunctional behaviors.368 Alongside its failure to
decrease risk of recidivism, solitary confinement oppresses
rehabilitation by removing the possibility of positive
relationships with other perpetrators and the rest of society.
This self-reform based on relational processes is stunted, and
inmates in solitary confinement are unable to reintegrate into
society as law-abiding and self-sufficient individuals.

With the devastating impacts of complete isolation
units on psychological well-being being so well-documented,
every federal court has been confronted with the question of
whether or not placing individuals with mental illness in
solitary confinement is cruel and unusual punishment in
violation of the Eighth Amendment.369 Despite the formal
position statement released by the American Psychiatric
Association stating that inmates afflicted with mental illness
should never be confined in restrictive housing units without
access to additional clinical support, the practice continues.370

Courts endorse the notion that solitary confinement is not cruel
and unusual punishment as long as its provisions of nutrition

370 Id.
369 ACLU, supra note 269, at 12.
368 Id.
367 Coppola, supra note 273.

Alternative Mental Health Programs, 36 CRIM. JUST. & BEHAV. 1037,
1041 (2009).

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and shelter do not differ from those provided to the general
prison population.371 Implicit in that precedent is the failure to
recognize that extreme social isolation is the fundamental
difference in condition between solitary confinement and the
general prison population. Housing an inmate in supermax
deprives inmates of a fundamental need that normal
confinement facilitates, and social interaction should be
acknowledged as a human necessity, not a mere privilege.372

The proposed policy restrictions on isolated
confinement do not prevent the devastating consequences of
the inmates’ experience in restrictive housing cells on
psychological health. Continued access to psychiatric treatment
in conjunction with therapy and programs supporting
rehabilitation should be demanded of federal and state
institutions alike. Yet, repeated court mandates have not led to
an established and protected right to psychological treatment
for mentally ill inmates in solitary confinement.373 Inmates are
sentenced to live in insufferable confines with no treatment nor
codified rights. The rights afforded to inmates in the general
prison population include contact with other inmates,
participation in programming and communal activities, and
visitations.374 Solitary confinement strips inmates of those
opportunities and the benefits of social interaction.

Access to therapy and psychiatric treatment in prison is
incredibly stunted, as three in five inmates do not receive

374 Andreea Matei, SOLITARY CONFINEMENT IN US PRISONS URBAN INSTITUTE

(2022),
https://www.urban.org/sites/default/files/2022-08/Solitary%20Confinement
%20in%20the%20US.pdf.

373 NAMI. (2023). Mental health treatment while incarcerated. National
Alliance on Mental Illness.
https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental
-Health-Treatment-While-Incarcerated.

372 Coppola, supra note 273.
371 Hutto 437 U.S. 678, at 686.

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appropriate mental health treatment while incarcerated.375

Along with the deficit of effective mental health services,
treatment regimens must grind to a halt for prisoners with
previously diagnosed mental illness, as fifty percent of inmates
who were medicated for mental illness upon admission did not
continue to receive medication during their sentence in
prison.376 To circumvent the challenges faced by mentally ill
incarcerated individuals and enhance the medical services
provided to those in solitary confinement, consistent
psychological screening and regular access to mental health
professionals must be implemented in prisons. While isolation
unit conditions vary depending on state legislature, systematic
policies of confinement–including isolation behind a steel door
for twenty-two to twenty-four hours a day, physical discipline
including hog-tying and restraint chairs, severely limited
contact with other humans, and inadequate rehabilitative and
educational programming—are universal in the United
States.377

As they serve their sentences, inmates experience
immense anxiety surrounding social conduct after being
deprived of interaction. If they are released from solitary
confinement into larger society, many former inmates exhibit
maladjustment disorders and difficulty acclimating to social
contact after release from isolation units compared to inmates
released from maximum security prisons.378 In 2006, the
Commission on Safety and Abuse in America’s Prisons
expressed concern for the practice of releasing inmates from
isolation settings directly into the community due to the
diminished social skills incurred from stays in solitary

378 Corcoran, supra note 343.

377 Madeodev. (2023). Solitary confinement facts. American Friends Service
Committee. https://afsc.org/solitary-confinement-facts.

376 Id.
375 NAMI, supra note 373.

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confinement.379 Considering ninety five percent of inmates in
solitary confinement will be released, the successful
reintegration into society of previously incarcerated individuals
should be the pinnacle of a correctional administration’s
mission.380

The practice of prolonged incarceration excluding the
use of solitary confinement for “higher risk” inmates is already
highly damaging due to the internalized prisonization effect.
The unregulated, unlimited use of solitary confinement in
federal prisons perpetuates and intensifies the cycle of “catch
and release.” This refers to the fundamental concept of
recidivism among individuals released from prison, relating to
a relapse into criminal behavior.381 Drawn from linked prison
records in the U.S. from 2006 to 2013, the recidivism rate for
inmates released from solitary confinement increased by
fifteen percent beyond the recidivism rate of fifty percent for
general population inmates.382 This correlation between release
from isolation and increased risk of recidivism is documented
in research conducted in state penitentiaries.

Preliminary research in California shows that
recidivism rates are twenty percent higher for those released
from solitary confinement as opposed to the general prison
population.383 In Colorado two-thirds of inmates released from
restrictive housing units return to prison within three years of
release.384 Additional research comparing the behavioral
trajectories of inmates who were not placed in solitary

384 Id.
383 ACLU, supra note 269, at 12.
382 Dean, supra note 344.

381 NIJ. (n.d.). Recidivism. National Institute of Justice.
https://nij.ojp.gov/topics/corrections/recidivism#:~:text=Recidivism%20is%
20one%20of%20the,intervention%20for%20a%20previous%20crime.

380 Hughes, supra note 323.

379 Commission On Safety and Abuse In America’s Prisons, Confronting
Confinement 55 (2006), available at
http://www.vera.org/download?file=2845/Confronting_Confinement.pdf

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confinement with the inmates housed in isolation units
confirms that the risk of conviction of another crime within
three years of release is increased by fifteen percent.385 One
potential factor driving recidivism is the psychological trauma
incurred from prolonged periods of solitary confinement, and
when individuals are labeled as “problem inmates” by
correctional officers due to mental health issues, the cycle of
detriment continues.386

While research demonstrating the psychological
damage from confinement in supermax units has become more
widespread over the last two decades, the United States has a
prolonged and dismal record of psychological harm resulting
from use of isolation units.387 In 1959, the American
Correctional Association’s Manual of Correctional Standards
dictated that use of solitary confinement for mentally ill
individuals should not exceed fifteen days and should only be
utilized as a last resort, stressing that inmates must be provided
with individual or group therapy to preserve mental
well-being.388 Despite previous efforts being made to regulate
the practice of solitary confinement in the U.S., its widespread
use was reignited in the 1980s, and the research demonstrating
these effects is too often cast aside in U.S. prisons.389

It is important to note that the resurrection of isolation
units in prisons was also spurred by the widespread dissolution
of mental hospitals in the 1960s. This forged an era of
“transinstitutionalization” where mentally ill individuals are
transferred from psychiatric hospitals to prisons.390 The

390 Bennion, supra note 279.

389 Herring, T. (2020, December). The research is clear: Solitary
confinement causes long-lasting harm. Prison Policy Initiative.
https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/

388 Craig Haney, Mental Health Issues in Long-Term Solitary and
“Supermax” Confinement, 49 Crime & Delinq. 126, 126 (2003).

387 Bennion, supra note 279.
386 Id.
385 Dean, supra note 344.

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intention was to house mentally ill persons in less-restrictive
environments with treatment provided in group settings.
However, once the mental hospitals closed, funding for support
services and community housing failed to materialize.391 As a
result, America’s largest inpatient facilities became not
hospitals, but jails.392 This concept manifests in the
concentration of mentally ill individuals in prison that is
observed in current society, as individuals diagnosed with
psychological illness are three times more likely to be
incarcerated than hospitalized for treatment.393 The U.S. has
been grappling with the facilitation of positive change among
inmates for decades, and it remains critical that the
psychological health of incarcerated individuals is preserved to
create a rehabilitative environment.

II. Arguments For the Unlimited Use of Solitary
Confinement

Advocates for unlimited use of solitary confinement
claim that the isolating conditions imposed on a single prisoner
preserve the safety of correctional officers and other
inmates.394 It is argued that segregation cells deter misconduct
and properly punish inmates who are unwilling to abide by the
prison’s rules, promoting generalized orderly conduct.395 The
fundamental justifications for the use of solitary confinement
rely on the deluded notion that only the “worst of the worst”
are placed in social isolation cells, working to create a safer
general prison environment.396 The reality is wholly different,

396 Id.
395 Id.
394 ACLU, supra note 269, at 10.
393 Fathi, supra note 302.

392 Nation’s Jails Struggle with Mentally Ill Prisoners, NPR (Sept. 4, 2011),
http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-ment
ally-ill-prisoners.

391 Fathi, supra note 302.

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as incarcerated individuals cast into solitary confinement are
generally placed there for one of three reasons beyond the
presence of a genuine security threat. Isolation cells are
utilized to control individuals perceived as a current or
potential threat to the prison community, to shield certain
inmates from threats and violence from other inmates, or to
discipline dissent for prison rules.397 Within the realm of the
perceived threat, the majority of inmates housed in supermax
facilities indefinitely are allegedly involved in gang activity.398

Despite remaining free of disciplinary write-ups during their
sentence and a lack of discrete evidence confirming affiliation
with organized crime, inmates suspected of gang membership
are confined in restrictive housing without a timeframe for
release back into the greater prison population.399

Alongside inmates suspected of gang affiliation and
those who commit minor infractions, mentally ill inmates are
disproportionately represented in restrictive housing.
Conforming to a heavily regimented prison environment is
made even more difficult by the symptoms of severe mental
illness, and thus minor infractions are more frequently
committed by this group of inmates.400 Correctional officers
often treat this ‘disordered behavior as disorderly behavior’,
and place mentally ill inmates in solitary confinement

400 Bennion, supra note 279.

399 Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An
Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary
Confinement on Inmates with a Mental Illness, 90 DENV. U. L. REV. 1, 10
(2012).

398 Bennion, supra note 279.

397 Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Judith Resnik,
Julia Spiegel, Haran Tae, Alyssa Work & Brian Holbrook, Administrative
Segregation, Degrees Of Isolation, and Incarceration: A National Overview
Of State And Federal Correlation Policies 2 (2013),
https://www.aclu.org/files/assets/Administrative%20Segregation,%20Degre
es%20of%20Isolation,%20and%20Incarceration.pdf.

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indefinitely, ultimately exacerbating the disordered behavior.401

Due to the poorly defined policies regarding which inmates
may be placed in solitary confinement, restrictive housing
units become densely populated with inmates who committed
small transgressions or petty annoyances.402 Imposing
complete isolation on an inmate is entirely left to the discretion
of individual prison administrations, and without definitive
guidelines restricting the length of confinement in restrictive
housing units, inmates may be left to suffer in solitary
confinement indefinitely. These low-risk inmates may pose
minor management difficulties for the corrections officers, but
do not demand complete sensory deprivation and social
isolation.

Evaluating whether solitary confinement units deprive
inmates of a basic human need entails weighing the gravity of
the harm caused to an individual against the penological
demands of the prison, such as security and inmate
management.403 Inherent in this comparison of the risk of harm
and security needs, is the indifference of the prison guards to
the psychological interests of the inmates.404 This functions
only to perpetuate the intransient trade-off between the mental
well-being of the individuals incarcerated in solitary
confinement and maintaining discipline within the prison.
Neglecting the overwhelming research confirming the
damages caused by solitary confinement leads to the use of
supermax housing as the predominant solution for any conflict
arising in the prison environment, including aforementioned
alleged gang affiliation and minor infractions.405 There is an

405 Ring, K. A., & Gill, M. (n.d.). Mental Health Policies and practices
surrounding mental health. Prison Policy Initiative.
https://www.prisonpolicy.org/research/mental_health/

404 Id.
403 Coppola, supra note 273.
402   Atul Gawande, Hellhole, New Yorker, Mar. 30, 2009, pg. 36, 39.
401 Id.

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imbalance between the traumatic and permanent implications
of social isolation and the penological interests that solitary
confinement is intended to serve. This emerging imbalance is
derived from the fact that socio-environmental deprivation
presents an excessive risk of severe brain deterioration and
psychological consequences; this extremely unbalanced cost
fails to be justified by any penological interest.406 The evidence
of excessive risk of psychological damage reinforces existing
evidence that neither short nor prolonged sentences in solitary
confinement reduces infractions or prison incidents as
intended.407 In fact, prisons that have restricted the use of
solitary confinement have noted a decrease in inmate violence,
and thus limited use of isolation cells does not undermine
capacity of prison administrations to maintain prison safety.408

The reality remains that solitary confinement cells are
consistently overused, causing a disproportionate isolation of
mentally ill or cognitively-impaired prisoners struggling to
navigate in prison settings.409 Once placed in solitary
confinement and excluded from the greater prison population,
the prisoner must endure the detrimental effects of social
isolation which increases the likelihood of psychological harm.
The infliction of social deprivation on inmates through
extended periods of solitary confinement is counterproductive
to the release of a convict back into the greater prison
community, and the release of a rehabilitated individual into

409 Ring, supra note 405.

408 ASCA-Liman, Working to Limit Restrictive Housing: Efforts in Four
Jurisdictions to Make Changes (Oct. 2018),
https://law.yale.edu/sites/default/files/documents/pdf/Liman/asca_liman_20
18_workingtolimit.pdf.

407 Joseph Lucas & Matthew Jones, An Analysis of the Deterrent Effects of
Disciplinary Segregation on Institutional Rule Violation Rates, CRIM. J.
POL. REV. 1 (2017).

406 National Committee on Correctional Health Care, Position Statement:
Solitary Confinement (Isolation), 22(3) J. Correct. Health Care 257, 258
(2016).

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greater society. Mental illness originating from an inmate’s
experience in solitary confinement further prevents them from
a successful reentry into society, posing an even greater impact
on the larger population.410 The pervasive use of the practice of
solitary confinement results in the release of thousands of
mentally ill inmates from incarceration with diminished social
capacities and life skills, and a greater likelihood to reoffend.411

Unlimited use of solitary confinement may also be
preferred when alternative disciplinary options are ineffective
in controlling high-risk inmates.412 Supporters of the use of
solitary confinement argue that other methods of discipline,
including education programs and cognitive-behavioral
therapy, are only applicable treatments to a minute portion of
the prison population. However, with over fifty percent of the
population in federal and state prisons suffering from mental
illness, the need for more comprehensive psychological
treatment is impertinent.413 According to a prison report
published by the Prison Policy Initiative organization, in 2017
and revised in 2023, sixty-six percent of mentally ill inmates
do not receive, nor are they offered, psychological treatment
while incarcerated.414 In addition to the lack of psychological
treatment, contact visits, rehabilitative therapy, work, and all
other recreational activities that are afforded to the general
prison population are prohibited for inmates in solitary
confinement.415

The disproportionate incarceration of individuals with

415 Madrid v. Gomez, 889 F. Supp. 1146, 1229 (N.D. Cal. 1995);
Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public
Safety Consequences: Hearing Before the Subcomm. on the Constitution,
Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th
Cong. 20–21 (2012).

414 Ring, supra note 405.
413 Id.
412 Id.
411 ACLU, supra note 269.
410 Taylor, supra note 324.

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mental health issues paired with the lack of accessible
treatment in prisons illuminates the U.S.’s deficit in attention
to the psychological needs of inmates, and the glaring need for
reform. The implementation of more opportunities for mental
health treatment and the improvement of staff training would
enhance communication regarding high-needs prisoners and
replace solitary confinement to maintain prison security. The
proliferation of supermax facilities as a more fiscally
conservative alternative to high-quality therapy is a paradox.
Supermax facilities are far more expensive to construct and
maintain, and holding a prisoner in solitary confinement
housing costs more than three times as much as incarceration
in a maximum security prison per day.416 The majority of the
additional expenses of supermax prisons are rooted in higher
staffing costs, as cleaning and food services are typically
performed by inmates for no compensation in maximum
security prisons.417 Through reallocation of funds,
community-based activities and increased group therapy
programs within the prison can be arranged to maintain a safer
prison environment without excessive additional cost.

III. Proposal To Eliminate the Unlimited Use of Solitary
Confinement in Federal Prisons:

In this section, I will introduce five achievable reforms
designed to mitigate the harm induced by solitary confinement
without wholly eliminating the practice. As stated by Justice
Sotomayor in Apodaka, “a punishment need not leave physical
scars to be cruel and unusual.”418 While discontinuation of the
use of supermax facilities to house mentally ill incarcerated
individuals is necessary to uphold the Eighth Amendment,

418 Apodaka, 586 U.S.
417 Fathi, supra note 302.

416 American Correctional Association, 2004 Directory (65th Ed. 2004), at
286, 288, 568, 570.

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implementing the following reforms will alleviate some of the
scars imposed by current practices of solitary confinement.

1. Prioritize mental health training for correctional
officers to place greater emphasis on the psychological
treatment of high-risk inmates; high-risk would entail those
with pre-established mental illness or cognitive impairments.
Contact visits, rehabilitative therapy, work, and all other
recreational activities that are afforded to the general prison
population are prohibited for inmates in solitary confinement.
This would ensure that correctional officers have the skills and
knowledge necessary to effectively and compassionately
manage situations with non-compliant inmates without
resorting to solitary confinement. In 2001, Appelbaum and
colleagues published an article regarding the state of mental
health training for correctional officers.419 The article identified
the discrepancy between professional cultures of security staff
and mental health staff as a prominent issue within prison
administrations. The article noted how many members of
security and mental health staff actually collaborate effectively
and share a common goal of humane treatment of inmates, and
the capacity of mental health training sessions to hone these
skills. Introducing collaborative training sessions focused on
mental illness would function to create a multidisciplinary staff
equipped with more skills to conduct a safe prison
environment, and prevent inmate abuse. In the Estelle and
Wilson420 cases, the Supreme Court determined that claims of
violation of the Eighth Amendment arising from solitary
confinement conditions requires the subjective aspect of
“deliberate indifference” of corrections officers to the risk to

420 Estelle, 429 U.S. 97; Wilson, 501 U.S. 294, at 300

419 Kenneth L. Appelbaum, James M. Hickey & Ira Packer, The role of
correctional officers in multidisciplinary mental health care in prisons, 52
PSYCHIATRIC SERVICES 1343–1347 (2001).

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inmate health.421 Through implementation of trauma-response
training and established methods of accommodating mentally
ill incarcerated individuals, the possibility of ignorant
indifference to inmates’ psychological suffering would be
eliminated. This would facilitate litigation of solitary
confinement conditions to appropriately deliver justice to those
individuals who have suffered.

2. Establish solitary confinement for mentally ill
individuals as a violation of the Eighth Amendment. This
entails the need for the Court to uphold that the degree of
mental injury endured as a result of prolonged isolation
significantly exceeds the psychological pain compatible with
Eighth Amendment standards.422 The justification for this
reform is predicated on the research indicating the increased
vulnerability to detrimental effects of social isolation in people
with pre-existing mental illness.423 Once this discrepancy is
acknowledged, comprehensive evaluation of the practice of
solitary confinement can occur, and Congress may pass a
statute that would effectively end solitary confinement in the
future. Within the criteria to establish a punishment as “cruel
and unusual” is a demonstration of an “objectively, sufficiently
serious act or omission resulting in the denial of
necessities…”424 and the mental, physical, and physiological
harms imposed by the conditions of solitary confinement are
on par with physical risk involved in starvation and sleep
deprivation. Given the biologically-based human need for
social interaction and the irreversible neurological and
psychological damage incurred from confinement in isolation
units, the complete isolation imposed by solitary confinement

424 FIRST PRINCIPLES: CONSTITUTIONAL MATTERS: CRUEL AND UNUSUAL

PUNISHMENT, https://www.armfor.uscourts.gov/digest/IB4.htm

423 Id.
422 Id.
421 Coppola, supra note 273.

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constitutes a deprivation of necessities.

3. Reconfigure the layout of isolation cells to align with
defined environmental standards. The Constitution does not
mandate comfortable cells.425 However, empirical studies have
confirmed that environmental surroundings influence
psychological well-being and behavior, and severely
under-furnished cells function to magnify the effects of social
deprivation.426 Research surrounding suicides in prisons have
noted that prison characteristics constitute almost half of the
variation of distress among inmates who had attempted suicide,
highlighting the substantial impact of prison-level factors on
compromised mental health.427 Affording small personal
amenities to incarcerated individuals, such as proper bedding
and natural lighting, contributes to more generalized well-being
of inmates and overall reduced prison misconduct.428

4. Develop alternative disciplinary measures that address
the psychological root of an inmate's poor conduct. This could
include providing more intensive therapy and vocational
training outside of the cell in a consistent routine. Access to
skills training and preparation for future employment would
provide a constructive purpose for inmates to direct the
intellectual and creative energies that are suppressed by
confinement in Supermax housing. Access to social activities
for inmates, and access to reading material, in-cell
programming, and telephone calls can be maintained even if
inmates remained segregated from the rest of the prison
population. This routine should be maintained for as long as it

428 Id.

427 Liebling Alison. 2006. “The Role of the Prison Environment in Prison
Suicide and Prisoner Distress.” Pp. 16–28 in Preventing Suicide and Other
Self-harm in Prison, edited by Dear G. London: Palgrave Macmillan.

426 Coppola, supra note 273.
425 Eg Rhodes, 452 U.S. 337, at 349.

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is deemed necessary through evaluation by a psychologist.
Research of brain plasticity has indicated that social
engagement induces positive alterations in the neural circuits
underlying socio-affective skills such as empathy, cognitive
functions, and social behavior that persist throughout the
individual’s lifespan.429 Facilitating positive social interaction
through group therapy and interactive training courses allows
for inmates to experience environmental stimulation and
develop normal sociable tendencies.430 Acknowledging the
bidirectional link between cognitive function and social
environment in the development of alternative disciplinary
measures is key in protecting brain health among inmates and
functional reentry into society.431

5. Increase the accessibility to enriching activities and
group therapy sessions within the general prison population to
generate a sense of community and trust between inmates and
officers. Research indicates that the frequency of prison
violence in America is more closely correlated to the manner in
which inmates are treated by prison staff than the presence of a
minute number of “high-risk” inmates.432 By cultivating an
environment of respect as opposed to a skewed hierarchy of
power, a safer general prison population can be attained. The
current vehicle for achieving respect in maximum security
facilities is through repression, and this would be rectified by
demonstrating that mentally ill inmates would form bonds of
respect through constructive avenues. The availability of work

432 Leena Kurki & Norval Morris, The Purposes, Practices, and Problems of
Supermax Prisons, 28 CRIME AND JUST. 385, 389 (2001).

431 Id.
430 Coppola, supra note 273.

429 Riitta Hari et al., Centrality of Social Interaction in Human Brain
Function, 88 NEURON 181 (2015); Sophie Valk et al., Structural Plasticity
of the Social Brain: Differential Change After Socio-Affective and Cognitive
Mental Training, 3 SCI. ADVANCES e1700489 (2017).

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and recreational activities have an immense impact on inmates’
mental health, as activity deprivation is linked to depression
and aggressive behavior.433 Establishing these aspects of
functional life within prison walls would decrease hostility
between inmates and officers, as well as among inmates
themselves. The implementation of this proposal eliminates the
need for solitary confinement of mentally ill inmates while
establishing a balance between maintaining order and safety
within the prison and accommodating the psychological
demands of the inmates.

Current progress towards the limitation and uniform
regulation of the use of solitary confinement has proven to be
inconsistent, therefore, ongoing dialogue and collaboration
with all advocates for and against the unlimited use of solitary
confinement must be maintained.

433 Tartaro Christina, Lester David. 2009. Suicide and Self-harm in Prisons
and Jails. Lanham, MA: Lexington Books.

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