Sotomayor Pens Stinging Rebuke of Solitary Confinement

WASHINGTON (CN) – After the Supreme Court shot down a challenge to the use of solitary confinement in prison, Justice Sonia Sotomayor voiced alarm Tuesday about depriving inmates of daylight for months and years.

Consolidated from two appeals at the 10th Circuit, the case at issue stems from the incarceration of Jonathan Apodaca, Joshua Vigil and Donnie Lowe at the Colorado State Penitentiary.

Sotomayor noted that while the three men were in so-called administrative segregation, doing stints that ran between 11 and 25 months, none were allowed outside except for “recreation time” in a small room with a chin-up bar.

Measuring 90 square feet, this room did have two windows, but the metal grates covering them could almost be said to be more cruel than sealed glass.

“The grates have holes approximately the size of a quarter that open to the outside,” a prior district court described it, as quoted Tuesday by Sotomayor. “The inmate can see through the holes, can sometimes feel a breeze, and can sometimes feel the warmth of the sun. This is his only exposure of any kind to fresh air.”

Apodaca, Vigil and Lowe were allowed to spend one hour a day in this room, five days per week, during their stays in isolation.

The Colorado Department of Corrections has since done away with restricted housing, but it still faced possible liability for the earlier system as Apodaca, Vigil and Lowe alleged cruel and unusual punishment in violation of the Eighth Amendment.

When the 10th Circuit ordered the cases dismissed last year, it cited “reasonable debate on the constitutionality of disallowing outdoors exercise for two years and one month” in Lowe’s case, or, moreover, 11 months in Apodaca and Vigil’s case.

This morning, the Supreme Court was apparently unanimous in rejecting the men’s petitions for certiorari. Sotomayor’s opinion is one with respect to the denial, but she did find merit in the argument that prisons must demonstrate a sufficient security justification to deprive inmates of outdoor exercise.

The problem for the challengers, however, is that “the litigation before the lower courts here did not focus on the presence or absence of a valid security justification.”

“Therefore the factual record before this court — as well as the legal analysis provided by the lower courts — is not well suited to our considering the question now,” Sotomayor added. “Despite my deep misgivings about the conditions described, I therefore concur in the court’s denial of certiorari.”

For several additional pages, Sotomayor went on to explain that the court has for years recognized the perversion in capriciously depriving a prisoner of outdoor exercise for extended periods of time.

“It should be clear by now that our Constitution does not permit such a total deprivation in the absence of a particularly compelling interest,” she wrote.

The opinion also notes that petitioner Lowe died in the spring after he was released directly onto the streets after 11 years in solitary confinement. The crime that had sent him to prison was second-degree burglary and introduction of contraband.

“While we do not know what caused his death in May 2018, we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars,” she wrote.

Today Colorado allows all inmates “access to outdoor recreation” for at least one hour, three times per week, subject to “security or safety considerations,” Sotomayor added.

She said such changes represent “steps toward a more humane system” but “cannot undo what petitioners, and others similarly situated, have experienced.”

Mark Fairbairn, a spokesman for the Colorado Department of Corrections, emphasized in a phone call meanwhile that the department is committed to improving its policies.

He said that the three-day-a-week opportunity that inmates have for outdoor exercise is only a minimum, and that inmates are typically are allowed outdoors four or five days a week.

Since the department also eliminated administrative segregation in September 2017, this outdoor time also comes in addition to the four hours a day that inmates spend out of their cells, at a minimum, every day, Fairbairn added.

“Some are out six hours a day plus that hour,” said Fairbairn.

Estimating that Colorado inmates on average spend 31 hours to 45 hours out of their cell a week minimally, Fairbairn said their advancements are making waves.

“We have departments coming in all across the country, all across the world, to see what we’re doing in our department,” Fairbairn said.

Endorsing Sotomayor’s point that there is still room to raise the bar, Fairbairn said his department routinely solicits staff and visitors to make recommendations.

“We have done so much more, we’re constantly looking to improve our department, [but] I dont think we can ever say, hey, we’re done,” he added.

At the end of her opinion, Sotomayor quoted a 2015 concurrence from Justice Anthony Kennedy in the case Davis v. Ayala, which noted that the experience of solitary confinement described in “A Tale of Two Cities” was inspired by a real-life visit Charles Dickens paid to Philadelphia’s Eastern State Penitentiary.

“Dickens did not question the penal officers’ motives,” Sotomayor wrote. “He concluded, rather, that they did ‘not know what it is that they are doing’ and that ‘very few’ were ‘capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.’ The pain caused was invisible and inaudible, such that ‘slumbering humanity’ was ‘not roused up’ to put a stop to it.

“We are no longer so unaware. Courts and corrections officials must accordingly remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

The Supreme Court did include any grant of certiorari today in its batch of orders.

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