Resource: Series on Solitary Confinement & the Eighth Amendment: Article I of III

By: Andrew Leon Hanna

February 1, 2019

University of Pennsylvania Journal of Constitutional Law

Federal district courts have in recent years shown an increased willingness to question solitary confinement’s permissibility under the Eighth Amendment’s ban on cruel and unusual punishment, starting with particularly harsh forms of confinement against particularly vulnerable groups of people. Moreover, this occurs in the midst of a trend of expansions of Eighth Amendment rights and a growing recognition by state legislatures, professional organizations, and international bodies that solitary confinement is unacceptably harmful by today’s “evolving standards of decency.” And with the retirement of frequent solitary confinement critic Justice Kennedy, the center of gravity for judicial action is set to shift even further to the lower courts.

At this potentially pivotal moment, this three-part Article series seeks to provide the first comprehensive overview of the practice of solitary confinement in America and of the Eighth Amendment litigation it has spurred. And building on this context, the series introduces and details two arguments, under two separate Eighth Amendment doctrines, contending that solitary confinement is per se unconstitutional.