Solitary confinement is not cruel and unusual punishment. It is cruel and unusual if one or more of its accompanying material conditions result in a wanton and unnecessary infliction of pain upon an individual. This requirement is met when such conditions involve a "deprivation of basic identifiable human needs" to an extent that they inflict harm or create a "substantial risk of serious harm" and they are enacted with "deliberate indifference" by prison personnel. With limited exceptions, the Supreme Court and lower federal courts have perpetuated a narrow application of these standards. In particular, Courts have often discounted the generalized mental pain caused by extreme isolation. Accordingly, Courts have often neglected the duration of solitary confinement as an autonomous aspect of constitutional scrutiny. Growing neuroscientific research has emphasized that social interaction and environmental stimulation are of vital importance for physiological brain function. It has further highlighted that socio-environmental deprivation can have damaging effects on the brain, many of which may entail irreversible consequences. Drawing on these insights, this article suggests that solitary confinement is in and of itself cruel and unusual punishment even under the current standards. Avenues for a profound rethinking of solitary confinement regimes are presented and discussed.
Keywords: eighth amendment; extreme isolation; neuroplasticity; punishment; social neuroscience; solitary confinement.
© The Author(s) 2019. Published by Oxford University Press on behalf of Duke University School of Law, Harvard Law School, Oxford University Press, and Stanford Law School.