1. Justice Breyer, joined by
Justice Ginsburg, dissenting
in Glossip v. Gross, 135 S. Ct.
2726, 2765-66 (2015), where,
in addition to his concerns
about solitary confinement, he
requested that a case dealing
with the death penalty be sent
to the Court.
3. Justice Kennedy concurring
in Davis v. Ayala, 135 S. Ct.
2187, 2208-10 (2015). He
notes, inter alia, that solitary
exerts a terrible price, especially
for the young and mentally ill
who often end up in prison.
In this case, the prisoner had
spent the great majority of his
more than 25 years in administrative isolation. Justice Kennedy had previously spoken
against isolation cells during
testimony before Congress in
March 2015. N. Y. TIMES, Editorial, June 20, 2015, at A18.
5. See R. L. Gottsfield, Douglas
L. Rayes & Patricia Starr, A
Court’s Remarkable Recovery
From a Capital Case Crisis,
48 ARIZ. ATT’Y 18 n. 19 (Nov.
2011). And see Survey, infra n.
6 at 52 for a discussion of the
use of solitary for death-sentenced inmates. For a very
detailed and recent description
of the conditions of Arizona
solitary confinement on death
row see the Complaint in
Nordstrom v. Ryan, et al., CV-
02176-DGC-JZB, filed Oct.
29, 2015, U.S.D.C. D. Ariz.,
by an inmate who has spent
19 years on Arizona death
row and is alleging violations
of due process, the Eighth
Amendment and civil rights
arising out of his treatment as
a death row inmate in solitary.
6. Time-In-Cell: The ASCA–
Liman 2014 National Survey of
Administrative Segregation In
Prison, The Liman Program,
Yale Law School Association of
State Correctional Administrators (Aug. 2015) (hereafter
Survey). Available at ASCA at
www.asca.net. In addition to
compiling the numbers of
prisoners in solitary confinement in the United States, the
Survey addresses the length of
time spent in administrative
segregation, the degree of isolation, the physical environment of the cell, exercise and
showers, opportunities for
interpersonal contact, social
visits, phone calls, social correspondence, legal visits and
legal mail, and programming.
See Survey at 27, 36, 39, 41,
7. Id. at i-ii.
8. As reported by Baker & Goode,
infra note 16. See also note 17
9. U.S. Department of Justice,
REPORT AND RECOMMENDA-
TIONS CONCERNING THE USE OF
RESTRICTIVE HOUSING, FINAL
REPORT (Jan. 2016); Michael
D. Shear, Obama bans solitary
confinement for juveniles in
federal prison, N. Y. TIMES,
Jan. 25, 2016. See also Barack
Obama, Why we must rethink
solitary confinement, WASH.
POST, Jan. 25, 2016.
10. Supra note 6 at ii and 3. This
estimate does not include
people in local jails, juvenile
facilities, or in military and
immigration detention. The
Survey differentiates between
those held in administrative
segregation in relationship to
those held in other forms of
restricted housing. Id. at 14.
12. Jess Bravin, Study fuels doubt
over solitary jailing, WALL
STREET J., Sept. 3, 2015, at A3,
uses the six percent figure. And
see Survey, supra note 6 at ii.
As such the figure of 100,000
inmates in segregation is much
higher than Justice Kennedy’s
figure of 25,000 cited in Davis
v. Ayola, supra note 3. The figure includes inmates in some
form of restricted housing,
which includes administrative
segregation as well as restriction
for other reasons. Supra note 6
at ii. The 100,000 figure does
not include people in local jails,
juvenile facilities, or in military
and immigration detention. Id.
at ii. Only 36 jurisdictions gave
figures for the number of people
in administrative segregation.
Id. at 22. The jurisdictions were
asked to compare Fall 2011
and Fall 2014, and in most the
percentage of prisoners confined in administrative segregation
remained relatively constant. Id.
13. Supra note 6 at ii and 6-9.
16. Supra note 6 at i. In addition
to Bravin, supra note 12, see
the following as part of the
excellent series the New York
Times ran on long-term
solitary confinement and its
severe consequences: Peter
Baker & Erica Goode, Critics
of solitary confinement are
buoyed as Obama embraces
their cause, July 22, 2015, at
A16; Erica Goode, Punished
for life, Aug. 4, 2015, at D1,
D6; Ian Lovett, California
agrees to overhaul use of solitary
confinement, Sept. 2, 2015, at
A14, A16; Timothy Williams,
Prison officials join movement to
curb solitary, Sept. 9, 2015, at
A1, A18; Adam Liptak, There’s
a case on solitary, if the Court
wants it, Sept. 15, 2015, at
A12; See also Zusha Elinson,
California to scale back solitary
jailing, WALL STREET J., Sept.
2, 2015, at A3.
17. See Survey, supra note 6, at iii,
3-7, for those organizations
urging reform. The 2014
Senate hearings were chaired
by Senators Richard Durbin of
Illinois and Ted Cruz of Texas.
Also active in ending the practice of solitary confinement are
Senators Ron Johnson of
Wisconsin, Thomas Carper
of Delaware, Mike Lee, Rand
Paul of Kentucky, Cory Booker
of New Jersey, and various
legislation has been introduced
in both the Congress and certain states. Id. And see Baker
& Goode, supra note 16, the
“Critics” article for President
Obama’s speech and the Justice
18. The quote is from the Survey,
supra note 6, at iii.
19. See, e.g., China: Rights advocate
describes torture and solitary
confinement, WALL STREET J.,
Sept. 24, 2015, at A20; Nick
Cumming-Bruce, China insists
to U.N. that it’s combating
torture, N. Y. TIMES, Nov. 18,
2015, at A4.
living and working in
prisons. The harms of
such confinement for
prisoners, staff, and the communities to
which prisoners return upon release are
more than well-documented. In some
jurisdictions isolated confinement has
been limited or abolished for especially
vulnerable groups (the mentally ill,
juveniles, and pregnant women),
and across the country, correctional
directors are working on system-wide
reforms for all prisoners. 50
In our own State of Arizona, a Consent
Decree in 2013 provided for increased access to health care for all those in administrative segregation and increased out-of-cell time for the mentally ill. 51
Criminal sentencing reform is now tak-
ing place in the federal system and in many
states. In the view of the authors, we as a
society are incarcerating too many people
for too long a time where other sentencing
options would better fit the crime and keep
society safe at the same time. In Arizona,
however, “Since 1992, the population in
the Arizona prison system, both privately
and publicly run, has increased by 171 per-
cent. This is far in excess of the state’s pop-
ulation growth of 75 percent over that time,
and reflects an increase in the incarceration
rate from 393 per 100,000 population to
Solitary Confinement in Need of Review