Wednesday, October 10, 2018

Justice Sotomayor cites Dickens to blast solitary confinement

After the Supreme Court shot down a challenge to the use of solitary confinement in prison, Justice Sonia Sotomayor voiced alarm about depriving inmates of daylight for months and years, according to Courthouse News Service.
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.”
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 emphasized that such changes represent “steps toward a more humane system” but “cannot undo what petitioners, and others similarly situated, have experienced.”
Quoting a 2015 concurrence from Justice Anthony Kennedy in the case Davis v. Ayala, Sotomayor also 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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