Will the Supreme Court Scrutinize Solitary Confinement? One Justice Offers a Map

WASHINGTON — Justice Anthony M. Kennedy is a fierce critic of solitary confinement. “It drives men mad,” he said in 2015 at Harvard Law School.

He attacked the practice in a 2015 concurring opinion. “Years on end of near total isolation exact a terrible price,” he wrote, noting that “common side effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”

Kennedy concluded that opinion with an unusual request, inviting lawyers to file appeals challenging the constitutionality of prolonged isolation. The requested appeals arrived, but the Supreme Court has so far turned them down. The court, which typically moves in measured increments, may not want to take on a question as broad as whether extended solitary confinement is cruel and unusual punishment barred by the Eighth Amendment.

But the court will soon consider whether to hear appeals raising a much narrower question: Do prisoners held in solitary confinement have a right to regular outdoor exercise?

As it happens, Kennedy has already answered that question. Almost 40 years ago, not long after he became a federal appeals court judge, he wrote that prisoners held in solitary confinement have a constitutional right to a little fresh air once in a while.

“Some form of regular outdoor exercise is extremely important to the psychological and physical well-being of the inmates,” he wrote in 1979 for a unanimous three-member panel of the United States Court of Appeals for the 9th Circuit, in San Francisco. “It was cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside except for occasional court appearances, attorney interviews and hospital appointments.”

Kennedy, who joined the Supreme Court in 1988, may now have the opportunity to establish that principle nationwide.

The new appeals were filed by several prisoners in Colorado. One of them, Donnie Lowe, 46, has spent almost his entire adult life in various prisons for various offenses. He was held in solitary confinement for 11 of those years.

Lowe’s lawsuit took issue with a decadeslong blanket policy at the Colorado State Penitentiary that denied him outdoor exercise for the more than two years he was in solitary there.

Elisabeth L. Owen, one of Lowe’s lawyers, recalled visiting him in prison. “The anxiety that man suffered by being isolated was hard to watch,” she said. “He was pale as a ghost. He had forgotten what the sun feels like.”

Outdoor exercise may seem a small thing, but it matters, said Daniel M. Greenfield, another lawyer for Lowe.

“We’ve known for a long time that solitary inflicts tremendous psychological and physiological harm on people,” he said. “It exacerbates pre-existing mental illness, and it can be the genesis of mental illness that did not predate the solitary confinement.”

“One of the few ameliorating circumstances is that prisoners are typically afforded five hours a week of outdoor exercise,” he said. “To be sure, they are taking that exercise in what is colloquially known as a dog cage. It’s not yard activity. It’s a space that’s barely larger than their cell. But it’s outside.”

In opposing Lowe’s lawsuit, Colorado prison officials conceded that inmates have a constitutional right to outdoor exercise. “Prolonged and continuous” denial of that right, they wrote, would violate the Constitution. But they said it was not clear that two years without outdoor exercise was enough to cross that constitutional line.

Judge Robert E. Bacharach, writing for a unanimous three-judge panel of the 10th Circuit, in Denver, agreed.

“The total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment,” Bacharach acknowledged, quoting an earlier opinion.

But that precedent and similar ones, Bacharach wrote, were not clear enough to allow Lowe to sue prison officials for money. The officials were protected by qualified immunity, he wrote, which shielded them from suits over violations of constitutional rights that were not clearly established at the time of the conduct in question.

“The deprivation of outdoor exercise for two years and one month,” Bacharach, “is not so obviously unlawful that a constitutional violation would be undebatable.”

In Colorado, for now, the issue is of only theoretical interest. The state ended the use of long-term solitary confinement last year. In 2016, the Colorado State Penitentiary lifted its ban on outdoor exercise for inmates held in isolation.

There are about 80,000 inmates in solitary confinement in the nation’s prisons. Most of them appear to have occasional opportunities to exercise outdoors, though the data are spotty and prison officials have a lot of discretion.

The Supreme Court is not a fan of lawsuits seeking money from state officials for constitutional violations. But Lowe’s appeal, along with a companion case, present the court with the opportunity to tell the nation what the Constitution requires even if it rules in favor of the prison officials on the ground that the law used to be unclear.

In a sign that the court might be interested in the cases, Lowe v. Raemisch, No. 17-1289, and Apodaca v. Raemisch, No. 17-1284, it ordered the officials to file responses to the plaintiffs’ petitions.

Kennedy is nearing the end of a long judicial career, and he might think it fitting to return to an issue he considered just a few years after he first put on a robe.

“Underlying the Eighth Amendment,” he wrote in 1979, “is a fundamental premise that prisoners are not to be treated as less than human beings.”