The Supreme Court could soon hear a challenge to a 'distinctively American form of punishment'

Anthony Kennedy(AP Photo/Denis Poroy)US Supreme Court Justice Anthony Kennedy recently wrote, ‘Years on end of near total isolation exact a terrible price.’

Lawyers for a convicted murderer in Virginia have asked the Supreme Court to decide whether death row inmates should automatically be placed in solitary confinement.

If the Supreme Court agrees takes up the case, it could also examine the broader issue of whether solitary confinement violates the Constitution’s ban on cruel and unusual punishment.

As New York Times columnist Adam Liptak writes this week, the high court “seems eager” to weigh in on this “distinctively American form of punishment.” In 2011, a United Nations expert on torture called for a ban on the practice, but the US still routinely uses it.

The inmate bringing the case, Alfredo Prieto — who’s been convicted of killing three people and raping two of them — has spent at least 23 hours a day, every day for seven years alone in a 71-square foot cell, according to the petition filed by his lawyers. Under Virginia’s penal system, death row inmates are automatically

placed in solitary confinement.

Prieto can’t do any exercises that require more space than has tiny cell offers. He can’t attend religious or education services or even see his family without a glass pane between them, according to his petition.

In a lawsuit originally filed in October 2012, he and his lawyers argue that such treatment has caused unnecessary mental anguish, which violates the Eighth Amendment’s prohibition of cruel and unusual punishment.

In November 2013, a federal judge sided with Prieto after finding Prieto’s permanent conditions of solitary confinement were “undeniably extreme and atypical of conditions in the general population,” according to Prieto’s Supreme Court petition.

A federal appeals court, however, reversed that decision — leading Prieto’s lawyers to ask the Supreme Court to hear the case.

Prieto’s Supreme Court petition cites many articles and studies about extended periods in solitary confinement, including the work of social psychologist Craig Haney, who interviewed prisoners at
Pelican Bay State Prison in California, one of the first “super-max” prisons in the country, as one of the most comprehensive reviews of long-term solitary confinement.

All of Haney’s subjects spent between 10 and 28 years in solitary confinement.

In such extreme isolation for years, the prisoners Haney interviewed at Pelican Bay experienced what he calls a “social death.”

While his work hasn’t been peer-reviewed as a formal study yet, the results are still striking and disturbing. Sixty-three per cent of inmates in solitary for more than 10 years told Haney they felt near an “impending breakdown,” The Times previously reported.

By contrast, only 4% of the regular inmates at the maximum-security facility described themselves in the same manner. And 73% of solitary prisoners reported being chronically depressed, compared to 48% of maximum-security inmates.

An estimated 75,000 prisoners across the US live in solitary confinement — or Special Housing Units, as the Federal Bureau of Prisons calls them. There, they spend up to 23 hours locked in cells often no larger than the span of their outstretched arms with little to no interaction with others.

Virginia attorney Mark Herring(AP Photo/Manuel Balce Ceneta)Virginia’s Attorney General, Mark Herring

Virginia is no stranger to challenges to its practices regarding solitary confinement.

In November 2014, five death row inmates argued their automatic and near constant solitary confinement violated the Constitution. They requested the freedom to exercise and visit with their immediate family without a glass partition, the same privileges Prieto is seeking.

Despite the Supreme Court’s likely interest in the case, especially considering Pelican Bay’s recent settlement to limit solitary confinement to five years, Virginia’s Attorney General Mark Herring has urged the justices to turn down Prieto’s petition for review, Liptak writes.

Herring argues the suit is ill-fitted to address solitary confinement and will soon be irrelevant anyway since Virginia plans to execute Prieto on October 1.

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