Opinion

Abre Jackson v. Marc Anastacio

Court: Court of Appeals for the Seventh Circuit
Filed: Aug 25, 2025
Status: Published
Author: Hamilton
On the bench: Hamilton
Cited by: 0 cases

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1703

ABRE JACKSON,

Plaintiff-Appellant,

MARC T. ANASTASIO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:20-cv-06004 — Sara L. Ellis, Judge.

____________________

ARGUED APRIL 2, 2024 — DECIDED AUGUST 25, 2025

____________________

Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiﬀ Abre Jackson is a pris-

oner in Illinois. After a physical altercation with several

prison guards and a prison disciplinary hearing, he was

placed in disciplinary segregation, more commonly known as

solitary conﬁnement, for three months. This appeal is the lat-

est in a series that have required us to consider when prison-

ers’ disciplinary placements in solitary conﬁnement amount

to deprivations of a liberty interest protected by procedural

2 No. 23-1703

due process, as well as the extent of process that may be due.

The answer depends on the combination of the length of soli-

tary conﬁnement and the actual conditions of that conﬁne-

ment as compared to those the prisoners would otherwise ex-

perience.

The district court granted summary judgment for the de-

fendant prison oﬃcials, ﬁnding that they did not deprive

Jackson of a liberty interest by placing him in solitary conﬁne-

ment for three months despite Jackson’s evidence describing

appalling conditions in the solitary cell. On that question, we

respectfully disagree with the district court, but we aﬃrm the

judgment for defendants. Even if a trial were to establish that

Jackson was deprived of a liberty interest, defendants would

still be entitled to qualiﬁed immunity from any damages rem-

edy because the applicable law was not clearly established at

the time they ordered him into solitary conﬁnement.

I. Factual and Procedural History

A. The Incident at Stateville & the Adjustment Committee

Hearing

Because we are reviewing a grant of summary judgment,

we give Jackson as the non-moving party the beneﬁt of con-

ﬂicts in the evidence and draw all favorable inferences from

it. Hardaway v. Meyerhoﬀ, 734 F.3d 740, 743 (7th Cir. 2013). On

February 25, 2020, Jackson was incarcerated at Stateville Cor-

rectional Center. A correctional oﬃcer approached Jackson’s

cell to close its “chuckhole,” a small opening just large enough

for Jackson to reach both of his arms through. As the oﬃcer

reached for the chuckhole door, Jackson placed one arm

through the opening. A second guard then approached and

tried to help close the door. Jackson testiﬁed that one of the

No. 23-1703 3

oﬃcers grabbed his arms and banged them against the cell

door and that another guard forcefully bent his ﬁnger. Video

footage depicts one oﬃcer grabbing Jackson’s arm, but a

guard’s body obscures most of the rest of the interaction. A

few seconds later, a third correctional oﬃcer, defendant Marc

Anastacio, approached the cell, shaking a chemical agent in

his right hand. Jackson asserts that Anastacio ground the

spray canister into Jackson’s hand.

About thirty seconds later, a fourth correctional oﬃcer,

defendant Shadi Awad, approached the cell door and began

speaking to the other oﬃcers. Jackson recalls that Awad

alerted them to the presence of a camera and told them to

stop. Moments later, Jackson broke free of the oﬃcers.

Anastacio then discharged a chemical agent into Jackson’s

cell. Jackson says that Anastacio continued spraying the

chemical agent at Jackson even after he had retreated com-

pletely into his cell. Defendants dispute this, and the video

evidence does not conclusively resolve the dispute. The entire

interaction lasted just over one minute, until a correctional of-

ﬁcer secured the chuckhole door.

Within just hours of the incident, Jackson was transferred

from Stateville to the Pontiac Correctional Center. Jackson tes-

tiﬁed that he received medical treatment for his resulting in-

juries at Stateville before transfer and at Pontiac afterwards.

Based on the chuckhole incident at Stateville, Anastacio is-

sued Jackson a disciplinary ticket for a major infraction. That

ticket triggered an “adjustment hearing” for Jackson at Pon-

tiac. The hearing was conducted on March 13, 2020 by a com-

mittee of two, defendants Travis Bantista and Jesus Madrigal.

At the hearing, Jackson was permitted to ask questions and to

tell his side of the story, but he was not allowed to call

4 No. 23-1703

witnesses or to view the video of the incident. After the hear-

ing, the committee issued its recommended disciplinary

measures along with the reasons for its decision, which was

based on statements by the Stateville guards. The recom-

mended discipline included the loss of one month of good-

time credit; three- or six-month losses of in-person visitation,

commissary access, and other privileges; and most relevant to

this appeal, three months of disciplinary segregation, which

we also call solitary conﬁnement. Pontiac’s warden, defend-

ant Leonta Jackson, approved the hearing committee’s deter-

mination. 1

B. Procedural History

Jackson ﬁled this suit under 42 U.S.C. § 1983, claiming in

relevant part that Bantista, Madrigal, and Warden Jackson

(collectively, “the Pontiac defendants”) violated his Four-

teenth Amendment rights by sentencing him to disciplinary

segregation without suﬃcient process. The defendants

moved for summary judgment on several grounds, including

failure to establish a protected liberty interest, failure to show

1 Jackson’s good-time credits were later restored, and for good reason.

Revoking a prisoner’s good-time credits without permitting him to call

witnesses violates the Supreme Court’s holding in Wolff v. McDonnell, at

least when calling witnesses would not be “unduly hazardous to institu-

tional safety or correctional goals.” 418 U.S. 539, 566–67 (1974); see also

Donelson v. Pfister, 811 F.3d 911, 917 (7th Cir. 2016) (“Due process requires

that prisoners in disciplinary proceedings, before being deprived of good

time, be allowed to call witnesses and present other evidence.” (citing

Wolff, 418 U.S. at 566)). Restoring the good-time credits, however, is a suf-

ficient remedy for such a procedural error. See Adams v. Reagle, 91 F.4th

880, 896 (7th Cir. 2024) (majority opinion of St. Eve, J., on procedural due

process issue). We need not discuss the good-time credits further.

No. 23-1703 5

that the procedures aﬀorded in his hearing were inadequate,

and qualiﬁed immunity. 2

The district court granted defendants’ summary judgment

motion as to Jackson’s procedural due process claim, ﬁnding

that Jackson could not establish that defendants deprived him

of a liberty interest subject to the due process requirements of

the Fourteenth Amendment by forcing him into three months

of segregation. Jackson v. Vasquez, No. 20 C 6004, 2023 WL

319530, at *7 (N.D. Ill. Jan. 18, 2023). The court ﬁrst concluded

that the length of Jackson’s segregation, three months, was in-

suﬃcient to create a liberty interest standing alone. Id. at *6.

But it also recognized that Jackson could still establish he was

deprived of a liberty interest if the segregation caused him to

suﬀer “unusually harsh conditions of conﬁnement or addi-

tional punishments….” Id., citing Kervin v. Barnes, 787 F.3d

833, 836–37 (7th Cir. 2015).

Jackson provided evidence that the conditions of his seg-

regation were indeed unusually harsh. In a declaration op-

posing defendants’ motion for summary judgment, Jackson

asserted that his disciplinary segregation cell, unlike Pontiac’s

general population area, had feces and urine on the walls,

constant noise with inmates banging on cell doors, water con-

taminated with bacteria that causes Legionnaire’s disease,

and roaches and mice. He also said that inmates in the disci-

plinary segregation cells, unlike inmates in general

2 Jackson also alleged the Stateville guards used wanton and unnec-

essary force in violation of the Eighth Amendment. A jury rendered a ver-

dict against defendant Anastacio for $2,500 in compensatory damages and

$5,000 in punitive damages. That claim is not at issue in this appeal.

6 No. 23-1703

population, throw feces and urine at other inmates when they

are in the hallways. Jackson, 2023 WL 319530, at *6.

Comparing the conditions of solitary conﬁnement as testi-

ﬁed by Jackson to conditions considered in previous cases, the

district court found that “when coupled with his relatively

short segregation time, he has not suﬃciently raised a genu-

ine issue of material fact regarding whether he suﬀered” the

sort of “atypical and signiﬁcant hardship” required to estab-

lish a liberty interest protected by procedural due process. Id.

at *7; see generally Sandin v. Conner, 515 U.S. 472, 484 (1995)

(adopting “atypical and signiﬁcant hardship” standard for

ﬁnding protected liberty interest). Because Jackson failed to

raise a genuine dispute of material fact regarding the exist-

ence of a liberty interest, the district court granted defendants’

motion for summary judgment on the merits of Jackson’s due

process claim without reaching the defense of qualiﬁed im-

munity. This appeal followed. 3

II. Analysis

We review de novo a district court’s grant of summary

judgment on the ground that the plaintiﬀ was not deprived of

a liberty interest. Thomas v. Ramos, 130 F.3d 754, 759 (7th Cir.

1997). We explain ﬁrst why Jackson has raised a genuine issue

of fact about whether he was deprived of a protected liberty

interest. Our explanation of the applicable law will lay the

foundation for our decision on qualiﬁed immunity because

any transgression of Jackson’s due process rights did not vio-

late clearly established law.

3 We thank Abigail R. Van Hook, Terrence P. Canada, and the law

firm now known as Troutman Pepper Locke LLP for their capable service

to plaintiff Jackson and to the district court and this court.

No. 23-1703 7

A. The Two-Prong Qualiﬁed Immunity Framework

Qualiﬁed immunity aims to strike a balance “between the

interests in vindication of citizens’ constitutional rights and in

public oﬃcials’ eﬀective performance of their duties ….” An-

derson v. Creighton, 483 U.S. 635, 639 (1987) (internal quotation

marks omitted), quoting Davis v. Scherer, 468 U.S. 183, 195

(1984). To determine whether qualiﬁed immunity shields the

actions of public oﬃcials, “the courts employ a two-prong

test: (1) whether the facts, viewed in a light most favorable to

the injured party, demonstrate that the conduct of the oﬃcers

violated a constitutional right, and (2) whether that right was

clearly established at the time the conduct occurred.” Harda-

way, 734 F.3d at 743, citing Pearson v. Callahan, 555 U.S. 223,

232 (2009). We have discretion to address the two qualiﬁed

immunity prongs in whichever order is appropriate. We may

use that discretion to resolve step-one rights questions ﬁrst,

especially when avoiding them would “leave standards of of-

ﬁcial conduct permanently in limbo.” Smith v. Kind, 140 F.4th

359, 365 (7th Cir. 2025) (internal quotation marks omitted),

quoting Camreta v. Greene, 563 U.S. 692, 706 (2011).

In Camreta, the Supreme Court explained that such step-

one merits rulings

are not mere dicta or ‘statements in opinions.’

They are rulings that have a signiﬁcant future

eﬀect on the conduct of public oﬃcials—both

the prevailing parties and their co-workers—

and the policies of the government units to

which they belong. And more: they are rulings

self-consciously designed to produce this eﬀect,

by establishing controlling law and preventing

invocations of immunity in later cases. And still

8 No. 23-1703

more: they are rulings designed this way with

this Court’s permission, to promote clarity—

and observance—of constitutional rules.

563 U.S. at 704–05 (citations omitted), quoting California v.

Rooney, 483 U.S. 307, 311 (1987).

Whether and when solitary conﬁnement deprives a pris-

oner of a protected liberty interest has been and will continue

to be a diﬃcult problem for courts, so qualiﬁed immunity of-

ten applies even where a prisoner’s rights have been violated.

E.g., Hardaway, 734 F.3d at 744 (aﬃrming grant of qualiﬁed

immunity and agreeing with district court that liberty interest

issue “is not at all clear except at the fringes”). We therefore

address the ﬁrst prong on the merits without skipping ahead

to the “clearly established law” question.

As instructed by Camreta, we have repeatedly thought

hard about whether to decide the merits issue presented in

this appeal, when solitary conﬁnement aﬀects a protected lib-

erty interest. See 563 U.S. at 707. In Hardaway, more than a

decade ago, we explained that while district courts “would

beneﬁt from a bright-line rule on the types of conditions and

durations of segregation [that] give rise to a prisoner’s liberty

interest, no such guidance has yet to be speciﬁcally addressed

by this Court.” 734 F.3d at 745. We are still unable to set out a

bright-line rule for solitary conﬁnement cases, but this case is

“one of those cases in which it is appropriate for the court to

exercise its discretion to avoid avoidance.” Toevs v. Reid, 685

F.3d 903, 910 (10th Cir. 2012) (deciding ﬁrst prong of qualiﬁed

immunity in case concerning prisoner’s procedural due pro-

cess right to periodic review of prolonged administrative seg-

regation).

No. 23-1703 9

B. Violation of a Constitutional Right

We ﬁrst ask whether the plaintiﬀ has shown a violation of

a constitutional right—or to be more precise, whether he has

oﬀered evidence that would allow a reasonable jury to ﬁnd

that he suﬀered a violation of a constitutional right. See Sauc-

ier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other

grounds by Pearson, 555 U.S. at 236. We note that this appeal

does not present the closely related questions of whether and

when conditions of solitary conﬁnement amount to cruel or

unusual punishment under the Eighth Amendment, regard-

less of procedures used to impose those conditions.

1. Liberty Interests in Avoiding Disciplinary Segregation

Prisoners may “claim the protections of the Due Process

Clause. They may not be deprived of life, liberty or property

without due process of law.” Wolﬀ v. McDonnell, 418 U.S. 539,

556 (1974). To proceed on a due process claim, a prisoner must

demonstrate: “(1) the deprivation of a liberty interest; and

(2) the procedures he was aﬀorded were constitutionally de-

ﬁcient.” Lisle v. Welborn, 933 F.3d 705, 720 (7th Cir. 2019).

In Wolﬀ, the Supreme Court held that a prisoner is entitled

to limited procedural protections before he is deprived of his

liberty interest in good-time credits as a disciplinary measure.

418 U.S. at 556–57. The Wolﬀ Court also taught that those con-

stitutional safeguards should apply when inmates face disci-

plinary solitary conﬁnement:

The deprivation of good time and imposition of

‘solitary’ conﬁnement are reserved for instances

where serious misbehavior has occurred. This

appears a realistic approach, for it would be diﬃ-

cult for the purposes of procedural due process to

10 No. 23-1703

distinguish between the procedures that are required

where good time is forfeited and those that must be

extended when solitary conﬁnement is at issue. The

latter represents a major change in the condi-

tions of conﬁnement and is normally imposed

only when it is claimed and proved that there

has been a major act of misconduct. Here, as in

the case of good time, there should be minimum pro-

cedural safeguards as a hedge against arbitrary de-

termination of the factual predicate for imposition of

the sanction.

Id. at 571 n.19 (emphases added).

After Wolﬀ, two Supreme Court decisions directly ad-

dressed whether and when assignment to some form of seg-

regation or solitary conﬁnement could deprive a prisoner of a

liberty interest that would trigger due process protections:

Wilkinson v. Austin, 545 U.S. 209 (2005), and Sandin v. Conner,

515 U.S. 472 (1995). See Marion v. Columbia Correctional Institu-

tion, 559 F.3d 693, 697 (7th Cir. 2009) (summarizing Wilkinson

and Sandin). In Sandin, the Supreme Court held that thirty

days of disciplinary segregation “did not present the type of

atypical, signiﬁcant deprivation in which a State might con-

ceivably create a liberty interest.” 515 U.S. at 486. In Wilkinson,

prisoners were assigned to a maximum-security prison,

placed in segregated conﬁnement for an indeﬁnite duration,

and “deprived of almost any environmental or sensory stim-

uli and of almost all human contact.” 545 U.S. at 214. The Su-

preme Court wrote that although “any of these conditions

standing alone might not be suﬃcient to create a liberty inter-

est, taken together they impose an atypical and signiﬁcant

hardship within the correctional context.” Id. at 224.

No. 23-1703 11

As we have explained, “Sandin and Wilkinson establish

that disciplinary segregation can trigger due process protec-

tions depending on the duration and conditions of segrega-

tion.” Marion, 559 F.3d at 697. In addition, “we have declined

to read Wilkinson’s holding as being limited to its speciﬁc

facts.” Id. We must therefore analyze “the combined import of

the duration of the segregative conﬁnement and the condi-

tions endured by the prisoner during that period” to deter-

mine whether solitary conﬁnement deprives a prisoner of a

liberty interest warranting due process protections. Id. A lib-

erty interest may arise “if the length of segregated conﬁne-

ment is substantial and the record reveals that the conditions

of conﬁnement are unusually harsh.” See id. at 697–98.

There is a lot of room between the thirty days of solitary

conﬁnement in Sandin and the indeﬁnite, near-total sensory

deprivation in Wilkinson. The Supreme Court has left it to

lower courts to chart that territory. Our cases have empha-

sized continued sensitivity to stints in solitary conﬁnement

measured in months. E.g., Ealy v. Watson, 109 F.4th 958, 964–

65 (7th Cir. 2024) (assuming liberty interest implicated by ﬁve

months in disgusting solitary conditions); Marion, 559 F.3d at

698–99 & n.3 (roughly eight months of solitary conﬁnement

required remand for factual inquiry into liberty interest; col-

lecting cases remanding where solitary conﬁnement lasted as

few as 75 days).

But the combination of qualiﬁed immunity’s “clearly es-

tablished” requirement layered on top of the multi-factor ap-

proach from Sandin and Wilkinson means that for any term of

solitary conﬁnement lasting more than days but less than

years, qualiﬁed immunity will often apply to claims for dam-

ages. E.g., Hardaway, 734 F.3d at 745. For segregation terms

12 No. 23-1703

measured in months, even if an inmate’s segregation

amounted to a deprivation of a liberty interest, it is unlikely

that prison oﬃcials could be “held responsible for incorrectly

guessing otherwise due to the ambiguity of the parameters of

the law.” Id.

2. The Value of a Duration-Based Rule

The Sandin, Wilkinson, and Marion line of cases requires us

to consider both “the duration of the segregative conﬁnement

and the conditions endured.” Marion, 559 F.3d at 699. It is im-

portant to emphasize that the signiﬁcance of unusually appal-

ling physical conditions diminishes when courts confront

prolonged terms of segregation. When a “prisoner is sub-

jected to a lengthy period of segregation, the duration of that

conﬁnement itself may be atypical and signiﬁcant.” Marion,

559 F.3d at 699 n.4 (internal quotation marks omitted), quot-

ing Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006).

Marion recognized that a long term of solitary conﬁnement

might suﬃce by itself to trigger a liberty interest. “Indeed,

other courts of appeals have held that periods of conﬁnement

that approach or exceed one year may trigger a cognizable lib-

erty interest without any reference to conditions.” Id. at 698–

99 & n.4, citing Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007)

(segregation of 305 days or more necessarily implicates liberty

interest), overruled on other grounds sub nom. Ashcroft v. Iq-

bal, 556 U.S. 662 (2009); Trujillo, 465 F.3d at 1225 (reversing

dismissal of claim involving 750 days’ solitary); Williams v.

Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) (assuming that

one year implicates liberty interest); see also Brown v. Oregon

Dep’t of Corrections, 751 F.3d 983, 988 (9th Cir. 2014) (twenty-

seven months of disciplinary segregation suﬃced to implicate

liberty interest); Perry v. Spencer, 94 F.4th 136, 159–60 (1st Cir.

No. 23-1703 13

2024) (en banc) (same for ﬁfteen months of administrative seg-

regation); Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000)

(same for 305 days). 4

We have not yet aﬃrmatively adopted any minimum du-

ration of disciplinary segregation that automatically impli-

cates a liberty interest, regardless of other conditions of con-

ﬁnement. But some of our precedents have outlined durations

that will not suﬃce by themselves—that is, without also

showing that the conditions of the conﬁnement were atypi-

cally harsh. For instance, we held in Bryan v. Duckworth that a

year in disciplinary segregation required remand to deter-

mine whether “conditions in segregation were considerably

harsher than those of the normal prison environment.” 88

F.3d 431, 433 (7th Cir. 1996), abrogated on other grounds as

recognized by Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir.

1998). Similarly, in Wagner v. Hanks, we held that a year in sol-

itary conﬁnement could implicate a liberty interest, but we

4 In Colon, the Second Circuit held that more than 305 days in solitary

confinement implicates a liberty interest and that durations between 101

and 305 days require the development of a detailed factual record. 215

F.3d at 231–32. In subsequent decisions, the Second Circuit has outlined a

test akin to burden-shifting, where durations longer than approximately

six months shift the burden of proving “typicality” back onto the officials

seeking qualified immunity. See, e.g., J.S. v. T’Kach, 714 F.3d 99, 106 (2d

Cir. 2013) (“confinement of 188 days is a significant enough hardship” to

create a liberty interest “[i]n the absence of factual findings to the con-

trary”). In Perry v. Spencer, 94 F.4th 136 (1st Cir. 2024) (en banc), the First

Circuit adopted this burden-shifting approach in a case involving admin-

istrative segregation. That court noted that “fifteen months of solitary con-

finement” would suffice to establish a liberty interest “in the absence of

the defendants making any contrary showing regarding the frequency of

use of such prolonged solitary confinement for administrative reasons.”

Id. at 159.

14 No. 23-1703

ﬂagged issues with deﬁning the relevant comparison group

when assessing whether such conditions were “atypical.” 128

F.3d 1173, 1174, 1177 (7th Cir. 1997). The reasoning of those

cases implies that a year in segregation does not automatically

implicate a prisoner’s liberty interest. We have reached more

explicit conclusions on shorter periods of segregation. See,

e.g., Marion, 559 F.3d at 698 (“six months of segregation is ‘not

such an extreme term’ and, standing alone, would not trigger

due process rights”), quoting Whitford v. Boglino, 63 F.3d 527,

533 (7th Cir. 1995); Lisle, 933 F.3d at 721 (same for four

months); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (same

for 90 days).

In reasoning that solitary conﬁnement of up to one year,

standing alone, is not suﬃcient to implicate a liberty interest,

Bryan and Wagner probably lie close to the outer limit under

current law. A one-year threshold is consistent with our

recognition in Marion that other circuits have held that “peri-

ods of conﬁnement that approach or exceed one year may

trigger a cognizable liberty interest without any reference to

conditions.” 559 F.3d at 699 (footnote omitted). It is also

roughly consistent with the First Circuit’s ﬁfteen-month

threshold adopted in Perry, 94 F.4th at 159, and the Second

Circuit’s 305-day boundary adopted in Colon, 215 F.3d at 231. 5

Long terms of solitary conﬁnement are not necessarily un-

constitutional, at least not yet. But they call for at least some

due process protections that apply when prison discipline

5 For reasons addressed in the separate concurring opinion, we and

other courts may find in the foreseeable future that we need to adopt a

much shorter presumptive limit based on evolving research on the effects

of prolonged solitary confinement, as well as international norms and do-

mestic legal trends.

No. 23-1703 15

deprives a prisoner of a liberty interest. See generally Wolﬀ,

418 U.S. at 556–58 & 571 n.19.

3. Jackson’s Evidence of a Protected Liberty Interest

Jackson’s assignment to solitary conﬁnement was for three

months, so whether he was deprived of a liberty interest de-

pends, under Marion, on “the combined import of the dura-

tion of the segregative conﬁnement and the conditions en-

dured by [him] during that period.” See 559 F.3d at 697.

Jackson has raised a genuine issue of material fact as to

whether his segregation at Pontiac was an “atypical or

signiﬁcant hardship in relation to the ordinary incidents of

prison life” under Sandin. 515 U.S. at 484. Jackson swore in an

aﬃdavit that his disciplinary segregation cell, unlike

Pontiac’s general population cells, had feces and urine on the

walls, constant noise with inmates banging on cell doors,

water contaminated with bacteria that causes Legionnaire’s

disease, and roaches and mice. He also testiﬁed that inmates

in the disciplinary segregation cells, unlike inmates in general

population, throw feces and urine at other inmates. Jackson,

2023 WL 319530, at *6. On a motion for summary judgment,

we ﬁnd it reasonable to infer in Jackson’s favor that he

personally experienced the deplorable conditions he

described in his declaration opposing summary judgment.

When considering a prisoner’s liberty interest in avoiding

conditions of segregation, we have distinguished between al-

legations of “disgusting conditions” versus conditions that

“although restrictive, were not unsanitary or otherwise dis-

gusting.” See Kervin, 787 F.3d at 836, citing Beverati v. Smith,

120 F.3d 500, 504 (4th Cir. 1997), and Hatch v. District of Colum-

bia, 184 F.3d 846, 858 (D.C. Cir. 1999). Similarly, in Taylor v.

16 No. 23-1703

Riojas, which summarily reversed qualiﬁed immunity for

prison oﬃcials, the Supreme Court held that “no reasonable

correctional oﬃcer could have concluded that” it was consti-

tutional under the Eighth Amendment to house a prisoner for

six days in “deplorably unsanitary conditions.” 592 U.S. 7, 7–

9 (2020). While the Eighth Amendment question in Taylor is

diﬀerent from the Fourteenth Amendment question pre-

sented in this case, the summary reversal in Taylor reinforced

the principle that prison oﬃcials do not have unlimited dis-

cretion to conﬁne inmates in deplorable conditions.

While the conditions described by Jackson are not quite as

awful as those in Taylor, the Pontiac cell block described in

Jackson’s aﬃdavit was unequivocally “disgusting,” Kervin,

787 F.3d at 836, and his assignment to solitary conﬁnement

there lasted ﬁfteen times longer than the plaintiﬀ’s conﬁne-

ment in Taylor. The unsanitary conditions Jackson describes

were far worse, and were described more speciﬁcally, than

the “vague description of [the plaintiﬀ’s] cell, including rust

on the bars and ‘corroded feces’ in the toilet” that we found

insuﬃcient to implicate a liberty interest in Lisle, 933 F.3d at

721 (combined with four-month term in solitary).

Jackson presents facts similar to those in Ealy v. Watson.

The prisoner-plaintiﬀ in Ealy was placed in segregation for

ﬁve months and was conﬁned in several cells, including one

with bugs and spider webs, a lack of heat, and faulty plumb-

ing “such that other inmates’ waste ﬂowed up into [his] toilet,

causing foul odors.” 109 F.4th at 963. We declined to decide

expressly whether those conditions implicated Ealy’s liberty

interests. We assumed that they did and instead resolved the

case on the ground that “Ealy received the process he was

due.” Id. at 966–67. Our assumption in Ealy provides support

No. 23-1703 17

for the idea that segregation for a matter of months in repul-

sive and unsanitary conditions can deprive a prisoner of pro-

tected liberty. We intend to make that explicit today.

A reasonable jury could conclude that the combined ef-

fects of Jackson’s three-month assignment to disciplinary seg-

regation and the conditions of his segregation imposed what

Sandin called “an atypical and signiﬁcant hardship.” 515 U.S.

at 484. If so, then Jackson was deprived of a liberty interest

entitling him to the “minimum procedures appropriate under

the circumstances” to ensure the “protection of the individual

against arbitrary action of government.” Wolﬀ, 418 U.S. at 557,

558. He argues that he did not receive those procedures before

this punishment was imposed. We do not decide that issue

because, as we explain next, the defendants are entitled to

qualiﬁed immunity on the liberty interest question.

C. Whether Defendants Violated Clearly Established Law

For the second prong of qualiﬁed immunity, we assume

Jackson can prove he was deprived of a liberty interest. The

question is whether the defendants violated law that was

clearly established at the time they imposed this term of

solitary conﬁnement. The answer is no. Jackson fails to meet

his burden on the second prong of qualiﬁed immunity, and

defendants are entitled to summary judgment on his due

process claim.

“The aﬃrmative defense of qualiﬁed immunity protects

government oﬃcers from liability for actions taken in the

course of their oﬃcial duties if their conduct does not violate

‘clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Hardaway, 734 F.3d

at 743, quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

18 No. 23-1703

To defeat qualiﬁed immunity by showing that a constitutional

right is “clearly established,” see Harlow, 457 U.S. at 818, the

“contours of the right must be suﬃciently clear that a reason-

able oﬃcial would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Jackson “bears the burden of identifying ‘case law that has

both articulated the right at issue and applied it to the factual

circumstance similar to the one at hand.’” Hardaway, 734 F.3d

at 744, quoting Boyd v. Owen, 481 F.3d 520, 526 (7th Cir. 2007).

This “clearly established” requirement holds even where the

constitutional merits depend on “fact-speciﬁc” questions. An-

derson, 483 U.S. at 640–41. In suﬃciently obvious cases of con-

stitutional violations, however, qualiﬁed immunity will not

be available even in the absence of a factually close precedent.

Hope v. Pelzer, 536 U.S. 730 (2002).

Under our case law at the time of Jackson’s hearing in

2020, for almost any term of disciplinary segregation meas-

ured in months, consideration of the conditions of conﬁne-

ment was required to determine whether a liberty interest ex-

isted. In Marion, we noted that six months of segregation,

again standing alone, would not trigger due process rights.

559 F.3d at 698. And in Kervin, we cautioned that a liberty in-

terest could be established for terms of segregation less than

six months “depending on the conditions of conﬁnement and

on any additional punishments.” 787 F.3d at 836–37; see also

Hardaway, 734 F.3d at 743 (“Although relatively short terms of

segregation rarely give rise to a prisoner’s liberty interest, at

least in the absence of exceptionally harsh conditions, such an

interest may arise from a long term of conﬁnement combined

with atypical and signiﬁcant hardships.”); Ealy, 109 F.4th at

964 (“ﬁve months in segregation, standing alone, is not

enough to implicate a liberty interest”).

No. 23-1703 19

Because the duration of Jackson’s disciplinary segrega-

tion, three months, is not long enough to deprive him of a lib-

erty interest on its own, defeating a qualiﬁed immunity de-

fense required Jackson to show that violations have been es-

tablished under “facts not distinguishable in a fair way from

the facts presented in the case at hand.” Figgs v. Dawson, 829

F.3d 895, 905 (7th Cir. 2016), quoting Campbell v. Peters, 256

F.3d 695, 701 (7th Cir. 2001), abrogated on other grounds by

Pearson, 555 U.S. 223. Put another way, the question is

whether the defendant members of Jackson’s disciplinary

committee should have known they needed to provide him

due process protections. See Hardaway, 734 F.3d at 744.

Jackson acknowledges this is not an easy task. He notes in

his brief that “this Court has yet to establish clear standards

for how harsh conditions in segregation need to be to satisfy

the Sandin hardship analysis.” Appellant’s Br. at 9. Our

comment over a decade ago in Hardaway remains true: the

jurisprudence regarding what presents “an atypical and

signiﬁcant hardship” is “not at all clear except at the fringes.”

734 F.3d at 744 (internal quotation marks omitted), quoting

Hardaway v. Meyerhoﬀ, No. 10-CV-556-JPG, 2012 WL 2520953,

at *3 (S.D. Ill. June 27, 2012). Jackson also acknowledges that

he is not among the few plaintiﬀs whose particular

combinations of duration and conditions of segregation have

already come before this court. Appellant’s Br. at 10.

Jackson’s acknowledgment that no case has previously

considered factual circumstances closely comparable to his

conﬁrms defendants’ entitlement to qualiﬁed immunity.

20 No. 23-1703

Jackson’s liberty interest was not “clearly established” by the

case law of this court or the Supreme Court in March 2020. 6

On the conditions factor, the conditions Jackson alleges

here, though “more severe than those found in the general

prison population,” are “hardly analogous to a conﬁnement

that deprives a prisoner of all human contact or sensory stim-

uli,” Hardaway, 734 F.3d at 744, like the conditions the Su-

preme Court found suﬃcient to create a liberty interest in Wil-

kinson. And on the duration factor, Jackson has not “presented

case law stating that a [three]-month period of conﬁnement

under conditions similar to [his] implicates a liberty interest.”

See id.

The closest cases are a handful of non-precedential orders

from this court and federal district courts in Illinois that were

identiﬁed in the district court’s order granting summary judg-

ment. See Jackson, 2023 WL 319530, at *7, citing Obriecht v.

Raemisch, 565 F. App’x 535, 540 (7th Cir. 2014) (no liberty in-

terest where defendant “submitted a declaration recounting

deplorable conditions (in particular having to sleep on a mat-

tress placed directly on the wet ﬂoor)” but was “released from

segregation after only 78 days”); Whitﬁeld v. Atchinson, No. 13-

cv-653-SMY-RJD, 2017 WL 3707180, at *5 (S.D. Ill. Aug. 28,

2017) (no liberty interest where segregation lasted three

6 See Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018) (“We look first to

controlling Supreme Court precedent and our own circuit decisions on the

issue. If no controlling precedent exists, we broaden our survey to include

all relevant caselaw in order to determine whether there was such a clear

trend in the caselaw that we can say with fair assurance that the recogni-

tion of the right by a controlling precedent was merely a question of

time.”) (internal quotations and alteration omitted), quoting Jacobs v. City

of Chicago, 215 F.3d 758, 767 (7th Cir. 2000).

No. 23-1703 21

months, with conditions including a steel door, cellmates

with mental health issues, unpleasant odors, constant noise,

and other inmates throwing feces at him); McKinley v.

Atchison, No. 3:16-cv-661-NJR-MAB, 2019 WL 4744839, at *7

(S.D. Ill. Sept. 30, 2019) (liberty interest implicated where con-

ditions including mice and cockroach infestation, cracked

window, no heat, no hot water, and no cleaning supplies

lasted more than three years).

These cases do not defeat qualiﬁed immunity here. First,

these cases are of limited value in demonstrating that Jack-

son’s liberty interest was “clearly established.” See Anderson

v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) (district court and

non-precedential circuit court decisions generally do not

clearly establish law). More substantively, even among these

non-precedential orders with comparable conditions, Jack-

son’s three-month duration of conﬁnement was closer to

Obriecht and Whitﬁeld in which the courts declined to ﬁnd lib-

erty interests, than to McKinley, where the court did ﬁnd a lib-

erty interest. Jackson has not identiﬁed any case predating his

March 2020 adjustment hearing ﬁnding a liberty interest in

circumstances resembling the three-month duration and de-

plorable conditions of his segregation at Pontiac. Thus, he

fails to overcome the defense of qualiﬁed immunity.

* * *

Jackson presented evidence showing that he was subjected

to three months in appalling conditions of solitary conﬁne-

ment at Pontiac. Taking that evidence as true, Jackson had a

liberty interest in avoiding the described conditions, so prison

oﬃcials should have aﬀorded him due process. Even so, “the

Defendants should not be held responsible for incorrectly

guessing otherwise due to the ambiguity of the parameters of

22 No. 23-1703

the law.” Hardaway, 734 F.3d at 745. The defendants are there-

fore entitled to qualiﬁed immunity on Jackson’s due process

claim. Moving forward, such short terms of solitary conﬁne-

ment combined with comparable disgusting conditions will

suﬃce to show a loss of protected liberty requiring procedural

protections, as will longer terms of solitary conﬁnement

alone.

The judgment of the district court is AFFIRMED.

No. 23-1703 23

HAMILTON, Circuit Judge, joined by ROVNER, Circuit Judge,

concurring. In 2015, the United Nations General Assembly

unanimously adopted the Standard Minimum Rules for the

Treatment of Prisoners, also called the Nelson Mandela Rules.

Those rules, which were sponsored by the United States, pro-

hibit as a form of torture solitary conﬁnement of more than

ﬁfteen consecutive days. 1 Yet federal courts in the United

States routinely hold that terms of solitary conﬁnement meas-

ured in years do not violate the Eighth Amendment prohibi-

tion on cruel and unusual punishment. We also ﬁnd that in-

mates rarely have a constitutionally protected liberty interest

in avoiding such restrictive conditions.

The lead opinion resolves this appeal correctly under cur-

rent precedent and as the issues were framed for us. I write

separately (a) to put this case in a broader context of constitu-

tional law and prison practice, (b) to link procedural treat-

ment of solitary conﬁnement to substantive limits under the

Eighth Amendment, and (c) to suggest how our case law un-

der the Eighth and Fourteenth Amendments should develop

in future cases. We know that prolonged periods of solitary

conﬁnement can have harmful, even devastating, eﬀects on

prisoners. Such prolonged punishments may be justiﬁed in

extreme cases, but they should become much rarer than they

are under current law and practice. We should begin bringing

our Eighth Amendment law and actual prison practices into

1 See G.A. Res. 70/175, at 15–16 (https://perma.cc/8ZRB-6SA9) (Dec. 17,

2015); U.N. Comm’n on Crime Prevention and Criminal Justice, Mandela

Rules, U.N. Doc. E/CN.15/2015/L.6/Rev.1 (https://perma.cc/TBA9-AW7E)

(May 21, 2015) (U.N. Commission, including United States, recommend-

ing adoption of Mandela Rules).

24 No. 23-1703

line with evolving standards of human decency and with the

Nelson Mandela Rules.

I. Ineﬀective Solitary Conﬁnement Case Law

As explained in the lead opinion, this appeal is framed to

test only whether plaintiﬀ Abre Jackson was entitled to pro-

cedural protections before he was ordered to spend three

months in solitary conﬁnement in ﬁlthy, appalling conditions.

E.g., Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (ﬁnding lib-

erty interest established and asking what process was due). 2

The Supreme Court has framed the due process problem

for solitary conﬁnement in two principal cases from a gener-

ation ago, Sandin v. Conner, 515 U.S. 472 (1995), and Wilkinson

v. Austin, 545 U.S. 209 (2005). Sandin held that a prisoner dis-

ciplined with thirty days in solitary conﬁnement was not en-

titled to due process protections because prison oﬃcials did

2 Most cases cited in this opinion (like Jackson’s appeal) speak in terms

of “segregation.” That is a euphemism for solitary confinement. In a typi-

cal “segregation,” a prisoner is held in “a windowless cell no larger than

a typical parking spot for 23 hours a day; and in the one hour when he

leaves it, he likely is allowed little or no opportunity for conversation or

interaction with anyone.” Davis v. Ayala, 576 U.S. 257, 287 (2015) (Ken-

nedy, J., concurring); Wallace v. Baldwin, 895 F.3d 481, 482–83 (7th Cir.

2018) (noting euphemism and quoting plaintiff describing “segregation”

as “akin to being sealed inside a coffin”). In 2015 and 2016, experts esti-

mated that somewhere between 60,000 and 100,000 prisoners were held in

solitary confinement. Judith Resnik et al., Punishment in Prison: Constitut-

ing the “Normal” and the “Atypical” in Solitary and Other Forms of Confine-

ment, 115 Northwestern Univ. L. Rev. 45, 77 (2020); see also Apodaca v.

Raemisch, 586 U.S. 931, 935 (2018) (statement of Sotomayor, J., regarding

denial of certiorari) (noting similar statistics). In 2017, almost 2,000 of those

individuals had been in isolation for more than six years. Resnik, supra,

115 Northwestern Univ. L. Rev. at 78.

No. 23-1703 25

not impose an “atypical and signiﬁcant hardship” as com-

pared to the “ordinary incidents of prison life.” 515 U.S. at

484. Wilkinson held that prisoners were entitled to modest pro-

cedural protections when they faced transfers for indeﬁnite

durations to a “supermax” prison, which would subject them

to “extreme isolation,” deprive them of “almost any environ-

mental or sensory stimuli,” and render them ineligible for pa-

role. 545 U.S. at 214–15. As the lead opinion explains, Sandin

and Wilkinson leave much unclear. In due process cases like

this one, the Supreme Court has left it to lower courts to ﬁgure

out just when the duration and conditions of solitary conﬁne-

ment combine to impose a suﬃciently “atypical and signiﬁ-

cant hardship” to require modest procedural protections. E.g.,

Marion v. Columbia Correctional Inst., 559 F.3d 693, 696 (7th Cir.

2009).

The Sandin standard was adopted in response to problems

with a diﬀerent approach from Hewitt v. Helms, 459 U.S. 460

(1983), which focused on the phrasing of prison regulations

and policies. The Sandin Court wrote that the Hewitt standard

had encouraged States to give prison oﬃcials standardless

discretion yet also invited undue federal court intrusion into

day-to-day prison management. 515 U.S. at 481–83.

Yet the Sandin standard has given rise to its own set of

problems. For example, we have not been able to set eﬀective

parameters on when a period of solitary conﬁnement is long

enough to trigger due process protections regardless of other

conditions. See ante at 12–14. Nor have we been able to pro-

vide clear guidance on how bad conditions in solitary conﬁne-

ment must be to require procedural protections for shorter

durations. See ante at 15–17.

26 No. 23-1703

A further debate addresses what procedures are due when

a prisoner is punished with solitary conﬁnement. In Wolﬀ, the

Supreme Court taught that its new standards for depriving a

prisoner of good-time credit should also apply to solitary con-

ﬁnement punishments. 418 U.S. at 571 n.19. In Sandin, the

Court found that the punishment of thirty days in solitary

conﬁnement did not entitle the prisoner to “the procedural

protections set forth in Wolﬀ.” 515 U.S. at 487. In Wilkinson,

however, the Court shifted focus from solitary conﬁnement as

an individual punishment to a State’s broader practices in de-

ciding which prisoners to assign to its new “supermax”

prison. After ﬁnding that the assignment would deprive pris-

oners of a protected liberty interest, the Court held that pro-

cedures less formal and adversarial than the Wolﬀ procedures

would suﬃce. 545 U.S. at 225–29. We followed that approach

in Westefer v. Neal, 682 F.3d 679, 684–86 (7th Cir. 2012), allow-

ing Illinois to use less formal and adversarial procedures in

assigning prisoners to its own “supermax” prison, so long as

they received some notice of the reasons for the assignment,

an opportunity to respond to them, and a periodic review of

their placements.

Judge Scudder points to Adams v. Reagle, 91 F.4th 880, 895

(7th Cir. 2024) (majority opinion of St. Eve, J.), where the panel

majority, without analysis of the point, extended the informal

and non-adversarial Wilkinson and Westefer procedures for

large-scale prison assignments to an individual punishment

of many months of solitary conﬁnement. In extending Wil-

kinson and Westefer on this point, the Adams panel did not ad-

dress the Supreme Court’s diﬀerent teaching in Wolﬀ and

Sandin. Nor did it engage with our other precedents, includ-

ing Kervin, Marion, and Lisle, indicating that the more formal

No. 23-1703 27

Wolﬀ procedures would apply to cases of individual punish-

ment with prolonged solitary conﬁnement.

We have also struggled to explain what it means for a term

of solitary conﬁnement to impose an “atypical and signiﬁcant

hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin, 515 U.S. at 484. What is an ordinary inci-

dent of prison life? Measured by which prisoner? In which

prison? We do not know. See, e.g., Wilkinson, 545 U.S. at 223

(noting the “diﬃculty of locating the appropriate baseline”);

Lekas v. Briley, 405 F.3d 602, 609–10 (7th Cir. 2005) (liberty in-

terest implicated only if inmate’s conﬁnement is worse than

that authorized in “the most restrictive prison in the state pe-

nal system”); Hardaway v. Meyerhoﬀ, 734 F.3d 740, 745 (7th Cir.

2013) (quoting plaintiﬀ’s brief and agreeing that “there is am-

biguity among various Seventh Circuit cases regarding the

proper baseline against which to measure conditions of disci-

plinary conﬁnement”) (internal quotation marks omitted).

Judge Scudder’s opinion identiﬁes another important

problem in these due process claims—calling it a “legal para-

dox”—albeit one that seems to be baked into the Supreme

Court’s “atypical and signiﬁcant hardship” standard from

Sandin. The problem is that defendant prison oﬃcials who or-

der a prisoner into solitary conﬁnement may not be responsi-

ble for, and may not even know, the actual conditions of soli-

tary conﬁnement they are imposing. Yet those actual condi-

tions could be decisive under Sandin, Wilkinson, Marion, and

similar cases looking at the combination of duration and con-

ditions to determine whether the prison has been deprived of

a protected liberty interest. See post at 57. And if a prisoner

seeks damages under section 1983 against those oﬃcials, he

will need to prove that they knew or perhaps should have

28 No. 23-1703

known of those conditions. Judge Scudder also calls this

“backward” reasoning. Post at 52. There is some merit to that

criticism, but again, it is inherent in the due process test of

Sandin and Wilkinson, which teaches us to look at the combi-

nation of duration and conditions of the solitary conﬁnement

to decide whether a prisoner has been deprived of a protected

liberty interest. 3

3 Another complication in this field is that terms of solitary confine-

ment can be divided into two broad categories: administrative and disci-

plinary. Administrative segregation is not punitive but is imposed for

prison management reasons, such as the safety of the prisoner. Jackson’s

appeal challenges disciplinary segregation—solitary confinement im-

posed as punishment for a prison infraction. Some courts have held that

when state laws and prison guidelines authorize long terms of adminis-

trative segregation, it should be seen as an ordinary and expected condi-

tion of incarceration. As a result, administrative segregation raises fewer

due process issues. See, e.g., Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir.

2008) (“Indeed, there is nothing ‘atypical’ about discretionary segregation;

discretionary segregation is instead an ‘ordinary incident of prison life’

that inmates should expect to experience during their time in prison.”);

but see Wilkinson, 545 U.S. at 224 (administrative assignment to supermax,

with indefinite segregation, raised due process issue). Because adminis-

trative segregation may be imposed at will, some courts have also held

that terms of disciplinary segregation that do not exceed a possible term

of administrative segregation do not raise due process issues. E.g., Sandin,

515 U.S. at 486.

For clarity, the cases cited in the due process discussion of this opinion

deal only with disciplinary segregation unless otherwise noted. But terms

of both administrative and disciplinary segregation should pose Eighth

Amendment issues, as discussed below. Some inmates have been sub-

jected to unconscionable terms of solitary confinement for administrative

reasons. See, e.g., Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th Cir. 2014)

(affirming denial of qualified immunity when plaintiff was in administra-

tive segregation for 39 years); Estate of DiMarco v. Wyoming Dep’t of Correc-

tions, 473 F.3d 1334, 1340–41 & n.5 (10th Cir. 2007) (collecting cases finding

No. 23-1703 29

This court and other courts have struggled with these

problems for decades. We have not yet been able to oﬀer ei-

ther clear guidance for prison oﬃcials or meaningful reme-

dies for prisoners who are subjected to objectively inhumane

conditions. Take the narrow question when a term of solitary

conﬁnement alone (with otherwise tolerable conditions) can

entitle a prisoner to due process protections. We have ex-

pressed approval of decisions from other circuits holding that

“periods of conﬁnement that approach or exceed one year

may trigger a cognizable liberty interest without any refer-

ence to conditions.” Marion, 559 F.3d at 699 (footnote omit-

ted). In a more recent non-precedential order, we said that

eight months was a “duration long enough to implicate a lib-

erty interest….” Williams v. Brown, 849 F. App’x 154, 157 (7th

Cir. 2021). But we have also held that inmates do not have a

liberty interest in avoiding up to a year in solitary conﬁne-

ment, at least not without further inquiry into the conditions

of conﬁnement. E.g., Bryan v. Duckworth, 88 F.3d 431, 433–34

(7th Cir. 1996), abrogated on other grounds, Diaz v. Duck-

worth, 143 F.3d 345, 346 (7th Cir. 1998).

Decisions by our colleagues in other circuits are similarly

unsettled. As the lead opinion explains, the First and Second

Circuits have said that periods of disciplinary solitary con-

ﬁnement exceeding roughly a year presumptively implicate

an inmate’s due process liberty interest. Ante at 12–13, citing

Perry v. Spencer, 94 F.4th 136, 159 (1st Cir. 2024) (en banc); Co-

lon v. Howard, 215 F.3d 227, 231–32 (2d Cir. 2000). Other cir-

cuits have assumed the same. E.g., Williams v. Fountain, 77

F.3d 372, 374 n.3 (11th Cir. 1996). The Third Circuit, on the

no liberty interest in avoiding terms of administrative segregation lasting

up to 1,825 days).

30 No. 23-1703

other hand, has said that disciplinary conﬁnement for up to

seven months “does not, on its own, violate a protected liberty

interest….” Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.

2002). Yet courts still encounter periods of disciplinary soli-

tary conﬁnement longer than two years. See, e.g., Carrico v.

Vanihel, No. 23-1381, 2023 WL 7015274, at *1 (7th Cir. 2023);

Jackson v. Wexford Health Sources, No. 15-CV-920-NJR, 2015 WL

6663954, at *8 (S.D. Ill. Nov. 2, 2015) (plaintiﬀ alleged more

than ﬁve years of disciplinary segregation).

Recall that these durations are not maximum limits on sol-

itary conﬁnement but only the times that trigger minimal pro-

cedural protections. Under current law, prison oﬃcials may

subject inmates to essentially indeﬁnite solitary conﬁnement

so long as they have hearings with procedural safeguards as

outlined in Wilkinson and Wolﬀ v. McDonnell, 418 U.S. 539

(1974). Our precedents imply that prison oﬃcials may disci-

pline inmates without any procedural protections by putting

them in “humane” solitary conﬁnement conditions for up to

seven months, eight months or even a year, depending on the

circuit.

Case law from this circuit and other circuits has generally

held that whether intermediate durations of solitary conﬁne-

ment—usually measured in months—implicate liberty inter-

ests will depend on the facts of those conditions. See, e.g., Lisle

v. Welborn, 933 F.3d 705, 721 (7th Cir. 2019) (analyzing condi-

tions of conﬁnement when plaintiﬀ was placed in solitary for

four months); Kervin v. Barnes, 787 F.3d 833, 836 (7th Cir. 2015)

(period of solitary shorter than six months may require as-

sessment of conditions, and collecting cases); Marion, 559 F.3d

at 699 (eight-month term of disciplinary solitary required re-

mand for assessment of conditions); Mitchell v. Horn, 318 F.3d

No. 23-1703 31

523, 527, 531–33 (3d Cir. 2003) (remanding after prisoner was

sentenced to 90 days in disciplinary conﬁnement; cell had

“human waste smeared on the walls” and was “infested with

ﬂies”); Gaines v. Stenseng, 292 F.3d 1222, 1226 (10th Cir. 2002)

(remanding for consideration of conditions after 75 days in

solitary); Colon, 215 F.3d at 232 (“in cases challenging SHU

conﬁnements of durations within the range bracketed by 101

days and 305 days, development of a detailed record will as-

sist appellate review”) (footnote omitted). This makes sense

in theory. The logic is that prisoners have a greater “liberty”

interest in avoiding solitary conﬁnement when they are held

in appalling conditions, like those in this case, than when they

are held in better conditions. But the upshot of these cases is

that inmates have no liberty interest in avoiding solitary con-

ﬁnement so long as the only thing that has changed is the fact

that the prisoner is in solitary conﬁnement—even if the pris-

oner is segregated for months on end.

More troubling, we have explained in non-precedential or-

ders that “short” periods of solitary conﬁnement—including

“only 78 days”—do not support due process claims as a mat-

ter of law even when the conditions are otherwise “deplora-

ble.” See Obriecht v. Raemisch, 565 F. App’x 535, 540 (7th Cir.

2014) (no liberty interest where prisoner was placed in segre-

gation for 78 days and made to sleep on mattress on wet

ﬂoor); Younger v. Hulick, 482 F. App’x 157, 159 (7th Cir. 2012)

(saying “relatively short” terms of segregation “do not re-

quire inquiry into conditions” and collecting cases). These

cases suggest that any term of solitary under three months

will not implicate a liberty interest as a matter of law—that is,

without even considering the condition of the cells (which, as

this case makes clear, can be appalling). A review of the au-

thorities cited for this premise in Obriecht and Younger makes

32 No. 23-1703

it seem like these cases reﬂect a “precedential drift,” where

sound holdings morph slowly into the untenable and intoler-

able.

I hope our holding today will stop that drift, making clear

that even less prolonged terms of disciplinary conﬁnement

warrant judicial attention and procedural protections. Again,

under the Nelson Mandela Rules, anything more than ﬁfteen

days is prohibited as form of torture or cruel, inhuman, or de-

grading treatment. It is time to modify and clarify our stand-

ards in this area.

II. Procedural Obstacles to Progress and the Need for Change

Until now, change in the law of solitary conﬁnement has

been delayed by two barriers to meaningful judicial review:

qualiﬁed immunity and the very limited availability of injunc-

tive relief. As explained above, whether disciplinary solitary

conﬁnement implicates an inmate’s liberty interests is a fact-

speciﬁc inquiry, meaning that qualiﬁed immunity will com-

monly apply. In at least some of those cases, we will exercise

our discretion under Pearson v. Callahan, 555 U.S. 223, 242

(2009), to bypass merits questions and address only whether

the law was clearly established. E.g., Hardaway, 734 F.3d at

743–45; Carrico, 2023 WL 7015274, at *3. We also rarely have

the opportunity to address claims for injunctive relief chal-

lenging short-term prison disciplinary practices, which avoid

qualiﬁed immunity defenses. By the time those cases make it

to federal court, the claims for injunctive relief are moot. Cf.

Black v. Brown, 513 F.2d 652, 655 n.8 (7th Cir. 1975) (“The claim

for injunctive relief is, of course, mooted by plaintiﬀ’s release

from isolation and segregation.”); Hamner v. Burls, 937 F.3d

1171, 1175 (8th Cir. 2019) (“Hamner is no longer in

No. 23-1703 33

administrative segregation, and he concedes that his claim for

injunctive relief is moot.”). 4

Jackson’s case is one of the rare situations where a chal-

lenge to a term of disciplinary solitary conﬁnement is

properly presented to this court. We correctly exercise our dis-

cretion to address the merits issue and to “clarify [constitu-

tional] law in our circuit and establish future constitutional

boundaries…,” Smith v. Kind, 140 F.4th 359, 366 (7th Cir. 2025),

but we are still obliged to aﬃrm on the basis of qualiﬁed im-

munity because the facts of Jackson’s case—although strik-

ing—do not closely resemble facts we have confronted in any

previous decision and a constitutional violation is not (yet)

obvious on these facts.

Our obligation to grant qualiﬁed immunity to the defend-

ants here shows the beneﬁts of a brighter-line rule. We should

heed the Supreme Court’s warning that punting on a merits

question “again, and again, and again” can “frustrate ‘the de-

velopment of constitutional precedent’ and the promotion of

law-abiding behavior.” Camreta v. Greene, 563 U.S. 692, 706

(2011), quoting Pearson, 555 U.S. at 237. The next time this

court sees a due-process challenge to a punishment of a year

or more in solitary conﬁnement, we should join with the First

and Second Circuits in presuming that solitary conﬁnement

of a year or more requires due-process protections regardless

of the details of prison conditions. See Perry, 94 F.4th at 154

4 When punishment is imposed in a prison disciplinary proceeding, a

civil challenge under § 1983 also must face the challenge posed by Heck v.

Humphrey, 512 U.S. 477 (1994) (civil claim that implies invalidity of con-

viction or sentence not actionable until conviction or sentence has been set

aside), and Edwards v. Balisok, 520 U.S. 641 (1997) (applying Heck to prison

discipline).

34 No. 23-1703

(“the showing can be made when the length of the conﬁne-

ment is as long as” 376 days of administrative segregation);

Colon, 215 F.3d at 231 (same for 305 days). In fact, with an eye

on the Nelson Mandela Rules and modern understanding

about the eﬀects of solitary conﬁnement (addressed below), it

would be better and more reasonable to move that boundary

down from a year toward ﬁfteen days.

Drawing such a line in our case law would be helpful for

two reasons. First, an outer boundary would limit prolonged

periods of solitary conﬁnement from falling into a “repetitive

cycle of qualiﬁed immunity….” Camreta, 563 U.S. at 706 n.5.

Forward-looking rules help safeguard constitutional rights in

many areas of public law, and we should bring that approach

to this doctrine as well. See, e.g., County of Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991) (adopting 48-hour standard

for “prompt” probable cause determination by court after ar-

rest); Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (requiring

prophylactic measures to safeguard constitutional rights).

Second, for practical reasons due process claims based on

solitary conﬁnement “are an especially appropriate context

for a bright-line approach.” Colon, 215 F.3d at 233 (opinion of

Newman, J.). Prison oﬃcials are entitled to the clearest guid-

ance the courts can provide. Without a clear rule, prison oﬃ-

cials risk avoidable exposure to lawsuits that may or may not

bypass qualiﬁed immunity depending on whether the plain-

tiﬀ has suﬀered conditions that have received prior appellate

attention. As Judge Newman explained in Colon:

This is a context in which a high degree of cer-

tainty is extremely desirable. Prison oﬃcials

conduct thousands of prisoner hearings each

year, and they are entitled to know beforehand

No. 23-1703 35

whether these hearings are subject to the proce-

dural due process requirements of the Constitu-

tion. It is better to alert these oﬃcials to the fed-

erally enforceable requirements that must be

observed than to leave the oﬃcials uncertain

and merely aﬀord damage remedies in those

rare cases where courts determine after the fact

both that the conditions were atypical and that

the defendant oﬃcials were not entitled to qual-

iﬁed immunity.

Id. (footnote omitted). In a footnote, the opinion continued:

[T]the availability of a standard will alert the of-

ﬁcial to the need to provide federally required

procedures in all hearings likely to result in con-

ﬁnements of a duration equal to or exceeding

the standard. In this respect, the situation is sim-

ilar to criminal contempt hearings where the

procedural protection of a jury must be pro-

vided if the prosecutor intends to seek a penalty

of more than six months.

Id. at 233 n.6, citing Muniz v. Hoﬀman, 422 U.S. 454, 475–76

(1975).

It is both appropriate and prudent for us to set forth pro-

spective guidance on when solitary conﬁnement requires pro-

cedural protections, regardless of aggravating conditions of

conﬁnement. The facts of this case do not lie close enough to

the outer boundary of our case law to justify drawing such a

line today, but we should do so at the next opportunity. If it

takes an en banc decision or a circulation under Circuit Rule

40(e), so be it.

36 No. 23-1703

III. Solitary Conﬁnement and the Eighth Amendment

This case did not present an Eighth Amendment challenge

to Jackson’s solitary conﬁnement. That is typical. Many (if not

most) challenges to solitary conﬁnement are brought under

the due process clause of the Fourteenth Amendment because

Wolﬀ, Sandin, and Wilkinson make clear that such lawsuits can

sometimes succeed—and because courts have declined to

ﬁnd Eighth Amendment violations resulting from prolonged

periods of solitary conﬁnement. E.g., Isby v. Brown, 856 F.3d

508, 521–24 (7th Cir. 2017) (no Eighth Amendment claim

when prisoner was held in administrative segregation for

more than ten years); see also Porter v. Pennsylvania Dep't of

Corr., 974 F.3d 431, 457–58 & nn. 5 & 6 (3d Cir. 2020) (Porter,

J., dissenting) (collecting cases: “the Supreme Court has not

recognized psychological health, social interaction, or envi-

ronmental stimulation as basic human needs in the Eighth

Amendment context”); Grissom v. Roberts, 902 F.3d 1162,

1173–75 (10th Cir. 2018) (aﬃrming summary judgment for de-

fendants on Eighth Amendment claim; qualiﬁed immunity

where prisoner was in solitary for twenty years).

There have been some outlier cases, of course. See, e.g.,

Hutto v. Finney, 437 U.S. 678, 685–87 (1978) (approving district

court’s conclusion that punitive isolation combined with par-

ticularly heinous conditions violated Eighth Amendment and

aﬃrming remedial measures), abrogated on other grounds by

Dep’t of Agriculture v. Kirtz, 601 U.S. 42, 56 (2024). And long-

frozen Eighth Amendment doctrine on solitary conﬁnement

appears to be slowly thawing as some circuits have started to

realize that prolonged solitary conﬁnement is (or, at least, can

be) “cruel and unusual.” E.g., Porter, 974 F.3d at 440–47, 450–

51 (ﬁnding issue of fact on Eighth Amendment rights

No. 23-1703 37

violation based on 33 years in solitary but aﬃrming on quali-

ﬁed immunity); Porter v. Clarke, 923 F.3d 348, 355–61 (4th Cir.

2019) (noting changing academic literature on the subject and

aﬃrming summary judgment for plaintiﬀs based on years in

solitary conﬁnement). But the weight of authority still holds

that an inmate cannot show an Eighth Amendment violation

with even a prolonged term of solitary conﬁnement.

We should reconsider whether and when solitary conﬁne-

ment violates the Eighth Amendment. Supreme Court Jus-

tices have been calling for such a review for years. See, e.g.,

Apodaca v. Raemisch, 586 U.S. 931 (2018) (statement of So-

tomayor, J., regarding denial of certiorari); Ruiz v. Texas, 580

U.S. 1191 (2017) (Breyer, J., dissenting from denial of stay of

execution); Davis v. Ayala, 576 U.S. 257, 287–90 (2015) (Ken-

nedy, J., concurring). We know that solitary conﬁnement

causes serious harm, regardless of whether it is imposed as

punishment for the crime committed or as a discipline for a

prison infraction.

Recent case law, which has found protectable liberty inter-

ests implicated by shorter and shorter periods of solitary con-

ﬁnement, reﬂects a judicial recognition that prolonged puni-

tive solitary conﬁnement should be a thing of the past, or at

least much rarer than it is now. But the harm caused by soli-

tary conﬁnement does not change based on the procedures

used to impose it, making the due process clause an inade-

quate (or at least imprecise) safeguard.

Further doctrinal diﬀerences between Eighth Amendment

law and Fourteenth Amendment law show that we should re-

consider the question under the Eighth Amendment. Com-

pare the two questions:

38 No. 23-1703

—Eighth Amendment: is this practice consistent

with the evolving standards of decency that

mark the progress of a maturing society? E.g.,

Walton v. Nehls, 135 F.4th 1070, 1072 (7th Cir.

2025) (explaining that conduct is objectively se-

rious enough to constitute an Eighth Amend-

ment violation if it does not meet this standard),

quoting Hudson v. McMillian, 503 U.S. 1, 10

(1992)).

—Fourteenth Amendment: does this punish-

ment impose an atypical and signiﬁcant hard-

ship within the correctional context? E.g., Wil-

kinson, 545 U.S. at 224.

The Fourteenth Amendment procedural question is em-

pirical. It asks us to determine whether conditions of conﬁne-

ment are irregular and extraordinarily harsh as compared to

ordinary prison life. Few judges have spent a night in jail or

prison. It’s easy for us to assume that life in any correctional

context is hard, lonely, and isolating, and may commonly

come with long periods of solitary conﬁnement—making that

punishment seem anything but “atypical.” See, e.g., Sandin,

515 U.S. at 485 (thirty days in solitary was “punitive” but did

not implicate due process because it was not “a dramatic de-

parture from the basic conditions of” the sentence); Judith

Resnik et al., Punishment in Prison: Constituting the “Normal”

and the “Atypical” in Solitary and Other Forms of Conﬁnement,

115 Northwestern Univ. L. Rev. 45, 108 (2020) (“[M]any Four-

teenth Amendment opinions take for granted long-term pro-

found isolation as so normal an incident of prison life that no

judicial oversight is needed.”).

No. 23-1703 39

The Eighth Amendment question is more aspirational. It

asks us to determine whether we have outgrown practices

that we once tolerated. We should take up that question as

applied to prolonged solitary conﬁnement. The answer in

most circumstances should be yes. To explain, I next outline

how prison disciplinary tactics have evolved. I then summa-

rize a small amount of the massive trove of evidence—from

history, domestic and international legal sources, and scien-

tiﬁc literature—showing that prolonged solitary conﬁnement

is inconsistent with evolving standards of decency.

A. Winnowing Prison Disciplinary Tactics

For decades, courts have held that some prison discipli-

nary practices are oﬀ the table because they violate the Eighth

Amendment. See Resnik, supra, 115 Northwestern Univ. L.

Rev. at 59–67 (noting that in the 1960s, courts began rejecting

the argument that “correctional need” justiﬁed prison disci-

plinary tactics such as strip cells and deprivation of food and

water). In Hutto v. Finney, the Supreme Court characterized as

“cruel, unusual, and unpredictable” several prison discipli-

nary tactics: (1) lashing prisoners with “a wooden-handled

leather strap ﬁve feet long and four inches wide;” (2) using a

hand-cranked device to “administer electrical shocks to vari-

ous sensitive parts of an inmate’s body;” and (3) giving in-

mates guns and tasking them with keeping order, resulting in

beatings and shootings. 437 U.S. 678, 682 & n.4, n.5, and n.6

(footnotes omitted from ﬁrst quotation).

In Furman v. Georgia, Chief Justice Burger noted that courts

found Eighth Amendment violations for “oﬀensive punish-

ments devised without speciﬁc authority by prison oﬃ-

cials …,” citing cases prohibiting whipping and placement of

prisoners in freezing isolation cells. 408 U.S. 238, 384 (1972)

40 No. 23-1703

(Burger, C.J., dissenting), citing Jackson v. Bishop, 404 F.2d 571

(8th Cir. 1968) (whipping), and Wright v. McMann, 387 F.2d

519 (2d Cir. 1967) (ﬁlthy and freezing isolation). In Hope v.

Pelzer, the Supreme Court famously held that prison oﬃcials

acted with “obvious cruelty” when they hitched a prisoner to

a post “for an extended period of time in a position that was

painful, and under circumstances that were both degrading

and dangerous.” 536 U.S. 730, 745 (2002). The Supreme Court

found it particular notable that this “wanton treatment”—

which was “antithetical to human dignity”—was “not done

of necessity, but as punishment for prior conduct.” Id.; see

also Smith v. Kind, 140 F.4th at 374 (Hamilton, J., dissenting)

(“it is obviously unconstitutional to deliberately subject a na-

ked prisoner to temperatures equivalent to and colder than a

refrigerator”). Prolonged disciplinary solitary conﬁnement

should receive similar treatment to these practices that we

have appropriately curtailed in the last century.

The minimal procedures required in extreme cases by

Wolﬀ, Sandin, and Wilkinson should not be suﬃcient to justify

prolonged solitary conﬁnement. Historically, attempts to reg-

ulate particularly harsh punishments with procedural protec-

tions have shown that procedures are not suﬃcient, leading

courts to declare later that the underlying practices are uncon-

stitutional no matter how much process is aﬀorded. Whip-

ping is one example.

For years, Arkansas law and prison guidelines had author-

ized corporal punishment to “maintain prison discipline or to

enforce respect for Penitentiary policies.” Talley v. Stephens,

247 F. Supp. 683, 687–88 (E.D. Ark. 1965). Courts were hesitant

at ﬁrst to declare the practice unconstitutional, explaining that

“prison authorities must be given wide latitude and

No. 23-1703 41

discretion in the management and operation of their institu-

tions,” id. at 686, and that “corporal punishment ha[d] not

been viewed historically as a constitutionally forbidden cruel

and unusual punishment….” Id. at 689. A federal court tried

to proceduralize whipping by regulating the maximum num-

ber of lashes and the manner of administering lashes: each in-

stance of whipping could not be “excessive” and had to be

“inﬂicted as dispassionately as possible and by responsible

people….” Id. at 689. These procedures look not so diﬀerent

from the ones we now confront in the solitary conﬁnement

context—the duration of the conﬁnement cannot be too long,

and the cell itself must be tolerable.

Judicial experimentation with proceduralized whipping

did not last long. The abhorrent nature of the punishment and

its deleterious eﬀects on prisoners soon proved too great to

ignore. In Jackson v. Bishop, a case cited many times by the Su-

preme Court, then-Circuit Judge Blackmun wrote an opinion

holding that whippings were a cruel and unusual punish-

ment: “the strap’s use, irrespective of any precautionary con-

ditions which may be imposed, oﬀends contemporary con-

cepts of decency and human dignity and precepts of civiliza-

tion which we profess to possess….” 404 F.2d 571, 579 (8th

Cir. 1968). Noting that “[r]ules in this area seem often to go

unobserved,” the Eighth Circuit reasoned that it was impos-

sible to “ascertain the point which would distinguish the per-

missible from that which is cruel and unusual[.]” Id. at 579–

80.

Solitary conﬁnement may prove to be a similar example.

There is some value to improving procedural protections be-

fore prisoners are sent to prolonged terms of solitary conﬁne-

ment. But we should not let procedural issues distract us

42 No. 23-1703

(courts, legislatures, and prison oﬃcials) from the larger sub-

stantive issues, whether as matters of Eighth Amendment law

or just sound public policy. Like early court decisions proce-

duralizing whipping, we may look back on our procedural-

ized solitary conﬁnement cases as band-aids on a more fun-

damental problem.

B. Prolonged Solitary Conﬁnement and Evolving Standards of

Human Decency

That brings me to my ﬁnal point. There is a strong argu-

ment that, in many circumstances, prolonged solitary conﬁne-

ment violates the Eighth Amendment, regardless of the pro-

cedures used to impose it. 5

As noted above, the Supreme Court has explained that the

Eighth Amendment prohibits punishments that are “incom-

patible with the evolving standards of decency that mark the

progress of a maturing society….” Walton, 135 F.4th at 1072

(internal quotation marks omitted), quoting Hudson, 503 U.S.

at 10. The “clearest and most reliable objective evidence of

contemporary values is the legislation enacted by the coun-

try’s legislatures.” Atkins v. Virginia, 536 U.S. 304 (2002) (inter-

nal quotation marks omitted), quoting Penry v. Lynaugh, 492

5 The Nelson Mandela Rules say that prisoners should “[i]n no cir-

cumstances” be subjected to indefinite solitary confinement or prolonged

solitary confinement as a disciplinary sanction. See G.A. Res. 70/175, at 15

(https://perma.cc/8ZRB-6SA9) (Dec. 17, 2015). The Rules define “prolonged

solitary confinement” as a period longer than fifteen days. Id. at 16. This

seems like a sensible approach to me. The sweeping “no circumstances”

phrase does not, however, allow for the possible need to place a prisoner

in solitary confinement for non-disciplinary reasons, such as if the pris-

oner is a threat to other inmates or is at high risk of harm from other in-

mates.

No. 23-1703 43

U.S. 302, 331 (1989). When deciding Eighth Amendment is-

sues, the Supreme Court has also considered views from the

international community as evidence that “there is a consen-

sus among those who have addressed the issue.” See Atkins,

536 U.S. at 316 n.21 (prohibiting death penalty for intellectu-

ally disabled defendants; noting overwhelming worldwide

disapproval of practice); see also, e.g., Graham v. Florida, 560

U.S. 48, 80 (2010) (prohibiting life-without-parole sentence for

juveniles in non-homicide cases; international practices “not

dispositive” but also “not irrelevant”) (internal quotation

marks omitted), quoting Enmund v. Florida, 458 U.S. 782, 796

n.22 (1982).

In the nearly thirty years since Sandin, sociological and

medical research has laid bare the damaging mental and

physical eﬀects of solitary conﬁnement. There is increasing

scientiﬁc consensus and public awareness that the duration of

isolation is itself a “condition” with a heavy bearing on how

an inmate experiences conﬁnement. That awareness is re-

ﬂected in case law. See Alexander N. Reinert, Solitary Troubles,

93 Notre Dame L. Rev. 927, 956 & n.163 (2018) (collecting cases

and saying the “conceptual resistance” to considering human

contact as a basic human need “is breaking down”); see also,

e.g., Davis, 576 U.S. at 287 (Kennedy, J., concurring) (“The hu-

man toll wrought by extended terms of isolation long has

been understood ….”); Williams v. Pennsylvania Dep't of Cor-

rections, 117 F.4th 503, 515–26 & n.98 (3d Cir. 2024) (violation

of clearly established law to place mentally ill prisoner in

long-term solitary conﬁnement; collecting cases); Porter v.

Clarke, 923 F.3d 348, 361 (4th Cir. 2019) (ﬁnding harm from

prolonged solitary conﬁnement obvious in light of “extensive

scholarly literature describing and quantifying the adverse

mental health eﬀects of prolonged solitary conﬁnement that

44 No. 23-1703

has emerged in recent years”); Hamner v. Burls, 937 F.3d 1171,

1181 (8th Cir. 2019) (Erickson, J., concurring) (recognizing

“the developing science of mental health and what is now

known [about] the profound detrimental and devastating im-

pact solitary conﬁnement has on an inmate’s psyche”); Pala-

kovic v. Wetzel, 854 F.3d 209, 225–26 (3d Cir. 2017) (acknowl-

edging “robust body of legal and scientiﬁc authority recog-

nizing the devastating mental health consequences caused by

long-term isolation in solitary conﬁnement”); Kervin, 787 F.3d

at 837 (“The serious psychological consequences of such

quasi-solitary conﬁnement have been documented.”), citing

Elizabeth Bennion, Banning the Bing: Why Extreme Solitary

Conﬁnement is Cruel and Far Too Usual Punishment, 90 Ind. L. J.

741 (2015).

The arc of American jurisprudence on solitary conﬁne-

ment shows that it has long been understood as a cruel prac-

tice. Prolonged solitary conﬁnement was uncommon in the

early years of the United States. See David M. Shapiro, Solitary

Conﬁnement in the Young Republic, 133 Harv. L. Rev. 542, 581

(2019) (“[I]t does not appear that prisoners in the 1790s ever

remained in solitary conﬁnement for years on end.”). Begin-

ning in the 1820s, a few states experimented with long-term

solitary conﬁnement to encourage individual repentance, but

“after an initial phase of popularity, [it] came to be rejected by

the 1860s because of its cruel eﬀects.” John Stinneford, Exper-

imental Punishments, 95 Notre Dame L. Rev. 39, 56, 61–64

(2019). The Supreme Court capped this rejection with In re

Medley, 134 U.S. 160 (1890), ﬁnding that a state statute requir-

ing a prisoner to remain in solitary conﬁnement for two to

four weeks prior to execution “added such signiﬁcant suﬀer-

ing to his sentence that it could not be imposed on a prisoner

whose crime occurred before the statute took eﬀect.”

No. 23-1703 45

Stinneford, supra, 95 Notre Dame L. Rev. at 66, citing Medley,

134 U.S. at 168, 172 (noting that several decades ago, “the

whole subject attracted the general public attention, and its

main feature of solitary conﬁnement was found to be too se-

vere”).

As one scholar noted: “The founding nation of the modern

prison systems—the United States—was among the ﬁrst to

abandon large-scale solitary conﬁnement.” Peter Scharﬀ

Smith, The Eﬀects of Solitary Conﬁnement on Prison Inmates: A

Brief History and Review of the Literature, 34 Crime & Justice 441,

465 (2006). After Medley, solitary conﬁnement survived only

“at the very margins of penal practice during the twentieth

century ….” Stinneford, supra, 95 Notre Dame L. Rev. at 56.

That changed in the 1970s when prison overcrowding, a rise

in prison riots, and the highly publicized October 1983 mur-

ders of two prison guards resurrected solitary conﬁnement

“in the form of the ‘supermax’ movement in the 1980s and

1990s.” Id. at 56, 71–72; see also Scharﬀ Smith, supra, 34 Crime

& Justice at 442–43. Solitary conﬁnement has remained a com-

mon practice since then: according to estimates from 2021, at

least 41,000 prisoners nationwide were isolated “in a cell for

an average of twenty-two hours or more per day, for ﬁfteen

or more consecutive days.” Correctional Leaders Ass’n & Ar-

thur Liman Ctr. for Pub. Interest at Yale L. School, Time-in-Cell

2021: A Snapshot of Restrictive Housing, vii, 60 (2022)

(https://perma.cc/KSZ5-EY55); see also supra n.2 (providing

even higher estimates from the mid-2010s).

In the past decade, a great deal of sociological and scien-

tiﬁc evidence of the harms of solitary conﬁnement has

46 No. 23-1703

emerged. 6 As I said at the outset, in 2015, the United Nations

General Assembly unanimously adopted the Standard Mini-

mum Rules for the Treatment of Prisoners, also called the Nel-

son Mandela Rules. Those rules prohibit disciplinary solitary

conﬁnement of more than ﬁfteen consecutive days as a form

of torture. G.A. Res. 70/175, at 15–16 (Dec. 17, 2015). 7 The

Mandela Rules accompanied an international decline in the

use of prolonged solitary conﬁnement. Although each juris-

diction’s laws are subject to certain nuances and exceptions,

6 The following is a small sample of recent work. Bruce Western et al.,

Solitary Conﬁnement and Institutional Harm, 3 Incarceration 1, 20 (2022) (col-

lecting empirical support for the premise that solitary conﬁnement de-

grades human dignity); Craig Haney, The Science of Solitary: Expanding the

Harmfulness Narrative, 115 Northwestern Univ. L. Rev. 211 (2020) (collect-

ing research); Justin D. Strong et al., The Body in Isolation: The Physical

Health Impacts of Incarceration in Solitary Conﬁnement, 15 PLoS One 10

(2020); Mimosa Luigi et al., Shedding Light on “the Hole”: A Systematic Re-

view and Meta-Analysis on Adverse Psychological Eﬀects and Mortality Follow-

ing Solitary Conﬁnement in Correctional Settings, 11 Frontiers in Psychiatry

840 (2020). Slightly older work includes Jeﬀrey L. Metzner & Jamie Fellner,

Solitary Conﬁnement and Mental Illness in U.S. Prisons: A Challenge for Medi-

cal Ethics, 38 J. Am. Academy Psychiatry & L. 104, 104 (2010) (“(“[I]solation

can be as clinically distressing as physical torture.”); Stuart Grassian, Psy-

chiatric Eﬀects of Solitary Conﬁnement, 22 Wash. U. J. L. & Policy 325 (2006);

and Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psy-

chological Analysis of Supermax and Solitary Conﬁnement, 23 N.Y.U. Rev. L.

& Social Change 477 (1997).

7 On the State Department’s involvement, see Dan Sicorsky, The Nel-

son Mandela Rules: Honoring a Prisoner Turned World Leader, U.S. Dep’t of

State, July 18, 2017 (https://perma.cc/D4Y8-C3N3) (“A partnership be-

tween the State Department and Colorado Department of Corrections has

trained 1,050 corrections professionals from more than 20 countries in the

operation of humane and transparent prisons.”).

No. 23-1703 47

the following nations and provinces have broadly limited the

disciplinary use of solitary conﬁnement:

- Brazil, Croatia, France, Japan, Peru, Switzer-

land, and Western Australia (maximum of

thirty days)

- Albania, Belgium, Colombia, Croatia, the

Netherlands, Sri Lanka, Venezuela, Italy,

Yukon, Canada, Serbia, and Spain (fourteen

or ﬁfteen days)

- Chile, Bolivia, and Romania (ten days)

- Israel (seven days)

- Ireland and Scotland (three days)

Sharon Shalev, Mapping Solitary Conﬁnement, 7–8 (2024)

(outlining survey and noting that laws varied slightly

depending on various factors including inmate’s age, severity

of oﬀense, and sentence length); see also id. at 17–21

(surveying international use of solitary as prison

management and inmate-protection tool).

That trend has also taken eﬀect domestically. Between

2009 and 2022, 886 bills were introduced in 45 states to restrict

or end solitary conﬁnement. Forty states passed at least one

of those bills. Unlock The Box, Banning Torture: Legislative

Trends and Policy Solutions for Restricting and Ending Solitary

Conﬁnement throughout the United States 4 (2023)

(https://perma.cc/8VRM-VLKM). New Jersey, for instance,

has statutorily limited the use of solitary conﬁnement to

twenty consecutive days, subject to limited exceptions. See

N.J. Rev. Stat. § 30:4-82.8(a)(9) (2025). Prison administrators

have also made reforms in this direction. In 2017, the execu-

tive director of Colorado’s Department of Corrections ended

the state’s use of long-term solitary conﬁnement beyond the

48 No. 23-1703

Nelson Mandela Rules’ limit of ﬁfteen days, which he had

helped draft. 8 A sitting president has called for the curtail-

ment of solitary conﬁnement, 9 and in testimony to a House

Appropriations Subcommittee, so has a sitting Supreme

Court justice. 10

8 See Rick Raemisch, Opinion, Why We Ended Long-Term Solitary Con-

finement in Colorado, N.Y. Times (Oct. 12, 2017), https://www.ny-

times.com/2017/10/12/opinion/solitary-confinement-colorado-

prison.html (last accessed July 23, 2025); see also Amy Fettig, Why I Worked

on the Mandela Rules, in Incarceration and the Law: Cases and Materials

225, 225–26 (Margo Schlanger et al. ed., 10th ed. 2020)

(https://perma.cc/44W6-B7FB) (“At an early meeting, the U.S. government

actually opposed any meaningful limits on solitary confinement,” but

“this dynamic changed after U.S. advocates were able to bring to the ne-

gotiating table two state corrections directors from Colorado and Wash-

ington who pioneered reforms of solitary confinement in their own juris-

dictions.”).

As another example North Dakota derived inspiration from Norwe-

gian practices and implemented dramatic reforms resulting in a 74% re-

duction in the use of solitary confinement between 2016 and 2020. See Da-

vid Cloud, et al., “We just needed to open the door”: a case study of the quest to

end solitary confinement in North Dakota, 9 Health & Justice 28 (2021).

9 Barack Obama, Opinion, Why We Must Rethink Solitary Confinement,

Wash. Post (Jan. 25, 2016), https://www.washingtonpost.com/opin-

ions/barack-obama-why-we-must-rethink-solitary-confine-

ment/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html (last

accessed July 23, 2025) (announcing executive directive “banning solitary

confinement for juveniles” in federal prisons); The White House, Fact

Sheet: Dep’t of Justice Review of Solitary Confinement (January 25, 2016)

(https://perma.cc/3RDJ-K24A) (explaining presidential guidance).

10 Amy Fettig & Samuel Weiss, Supreme Court Justice Kennedy Invites

Constitutional Challenge of Solitary Confinement, Solitary Watch (June 23,

2015) (https://perma.cc/SQ7J-NCMQ) (last accessed July 23, 2025) (Justice

No. 23-1703 49

I do not mean to imply bad faith on the part of prison oﬃ-

cials, who have very diﬃcult jobs. See, e.g., Wilkinson, 545 U.S.

at 227 (acknowledging “the brutal reality of prison gangs”).

My point is that our confusing case law on solitary conﬁne-

ment is not helpful to prison oﬃcials, not fair to prisoners, and

not consistent with the Nelson Mandela Rules or “the evolv-

ing standards of decency that mark the progress of a maturing

society.” Hudson, 503 U.S. at 10.

Today’s decision applies governing law correctly and, rec-

ognizing the diﬃcult situation that prison oﬃcials face, ap-

propriately grants qualiﬁed immunity. In the longer run,

however, even more speciﬁc guidance on procedures for dis-

ciplinary solitary conﬁnement will not adequately address the

harms caused by prolonged solitary conﬁnement, which do

not depend on the procedures used to impose it. We should

reconsider our application of the Eighth Amendment to pro-

longed disciplinary solitary conﬁnement, which should no

longer be such a common feature of imprisonment.

Kennedy telling Congress that “[s]olitary confinement literally drives men

mad”).

50 No. 25-1703

SCUDDER, Circuit Judge, concurring in the judgment. To-

day’s decision is a postcard example of a court getting ahead

of itself. The majority opinion forgoes a narrow and straight-

forward resolution of this appeal—on qualified immunity

grounds—and reaches to resolve a much broader, much more

complicated, and much more consequential issue of when a

prisoner’s transfer to segregated confinement warrants con-

stitutional protections. More concerning yet, the majority an-

nounces a standard at odds with our case law and far afield

from Supreme Court precedent. So I am left only to concur in

today’s judgment.

Do not let the length and density of the majority or sepa-

rate concurring opinion distract from what happened here

and the ease of resolving the issue presented on qualified im-

munity grounds.

Following a hearing, Illinois prison officials ordered Abre

Jackson to serve 90 days in segregated confinement as disci-

plinary punishment for an incident at the Stateville Correc-

tional Center. Everyone agrees that Jackson had a full oppor-

tunity at the hearing to tell his side of the story and to ask

questions of the prison officials. Jackson nonetheless invokes

the Fourteenth Amendment’s Due Process Clause and claims

he was owed more process—the right to review video evi-

dence of the incident and to cross-examine correctional officer

witnesses.

Our recent decision in Adams v. Reagle defeats Jackson’s

claim. “Our law is clear,” we explained, “that an inmate who

is facing transfer to disciplinary segregation is entitled only to

‘informal, nonadversarial due process,’” meaning “notice of

No. 23-1703 51

the reasons for the inmate’s placement and ‘an opportunity to

present his views.’” Adams v. Reagle, 91 F.4th 880, 895 (7th Cir.

2024) (majority opinion of St. Eve, J.) (quoting Westefer v. Neal,

682 F.3d 679, 684–85 (7th Cir. 2012)). That informal process

does not include the right to call witnesses or review video

evidence, however. See id.; see also Westefer, 682 F.3d at 685

(explaining that “inmates do not have a constitutional right to

call witnesses”).

Adams is not an aberration. To the contrary, it aligns with

direction from the Supreme Court. The Court rejected a nearly

identical due process claim two decades ago when a group of

inmates challenged the procedures that preceded their indef-

inite transfer to Ohio’s Supermax facility. See Wilkinson v.

Austin, 545 U.S. 209, 225–28 (2005). The Court found no pro-

cedural due process violation where the inmates “receive[d]

notice of the factual basis” for the transfer and “a fair oppor-

tunity for rebuttal at a hearing,” although they could not call

witnesses. Id. at 225–26, 228. That is exactly the process Jack-

son received here: notice and an opportunity to be heard.

Regardless, the qualified immunity inquiry is not close. At

the time of Jackson’s disciplinary hearing, neither our court

nor the Supreme Court had ever held that due process re-

quires that an inmate be allowed to call witnesses or review

documentary or video evidence prior to their placement in

disciplinary segregated confinement.

This is all we had to say to resolve Jackson’s appeal.

The majority charts a different course by seeing Jackson’s

case as an opportunity to explore constitutional limits on the

duration of segregated confinement. It is from that

52 No. 23-1703

perspective that the majority chooses to break new ground

and announce a broad and unworkable rule of constitutional

law—all purportedly in the name of procedural due process.

Jackson’s appeal should never have become a test case. He

experienced a relatively short period of disciplinary segrega-

tion. And his procedural due process claim makes very little

sense: he points to the conditions of his segregated confine-

ment and says those conditions proved so horrific that they

should have informed the procedures afforded him in the first

instance at the disciplinary hearing that led to the segregated

confinement. If that reasoning seems backward, that is the

correct reaction.

Jackson’s position fares worse when measured against our

precedent. Even the most cursory review of our cases shows

that his challenge to his three-month term of disciplinary seg-

regation cannot rise to the level of a protected liberty interest:

• In Lekas v. Briley, the case perhaps most anal-

ogous to this one, we declined to find a pro-

tected liberty interest where an inmate re-

ceived three months of segregated confine-

ment which included a loss of work and pro-

gramming privileges, no telephone usage or

contact visits, and reduced access to per-

sonal items and the commissary. 405 F.3d

602, 610 (7th Cir. 2005). We analogized the

conditions in Lekas to Williams v. Ramos, 71

F.3d 1246 (7th Cir. 1995), where the prisoner

experienced solitary confinement for 19

days, and Thomas v. Ramos, 130 F.3d 754 (7th

No. 23-1703 53

Cir. 1997), where the prisoner’s 24-hour-a-

day segregation lasted for approximately 70

days. In neither case did we identify a pro-

tected liberty interest. Id. at 762; Williams, 71

F.3d at 1250.

• In Ealy v. Watson, we considered a proce-

dural due process claim where the plaintiff

spent five months in segregation and experi-

enced “cold temperatures, dirty cells, and

faulty plumbing resulting in unsanitary con-

ditions.” 109 F.4th 958, 961 (7th Cir. 2024).

The majority quotes from Ealy at great

length, but its reliance misses the mark.

There we declined to find a protected liberty

interest, instead taking the more obvious

route and holding that there was no due pro-

cess violation—leaving the liberty question

unanswered. See id. at 965. But in past cases

where we did reach the liberty question, we

made clear the bar is high. We failed to iden-

tify a liberty interest in Lisle v. Welborn, for

example, where the prisoner challenged his

four-month term of segregated confinement

in a cell with “rust on the bars and ‘corroded

feces’ in the toilet.” 933 F.3d 705, 721 (7th Cir.

2019) (explaining that a jury could not rea-

sonably infer “that these conditions caused

Lisle any significant hardship”).

• As support for the very brief discussion of

unsanitary conditions in Ealy and Lisle, we

cited our earlier decision in Kervin v. Barnes,

54 No. 23-1703

787 F.3d 833 (7th Cir. 2019). See Ealy, 109

F.4th at 965; Lisle, 933 F.3d at 721. Yet we de-

clined to find a protected liberty interest in

Kervin, where the prisoner endured 30 days

in segregated confinement and lost tele-

phone and commissary privileges. See id. at

834, 837. In reaching that conclusion, how-

ever, we described it as “sensibl[e]” that “the

severity of treatment should be combined

with its duration in assessing the gravity of

the conditions complained of by the pris-

oner.” Id. at 836 (citing out-of-circuit cases

considering “unsanitary or otherwise dis-

gusting” conditions in the context of a lib-

erty interest analysis).

• And in at least four cases where an inmate

experienced a period of segregated confine-

ment lasting anywhere between six months

and one year, we remanded for further fac-

tual development on whether the conditions

of segregated confinement were sufficiently

“atypical” to establish a liberty interest. See,

e.g., Marion v. Columbia Corr. Inst., 559 F.3d

693, 698–99 (7th Cir. 2009); Wagner v. Hanks,

128 F.3d 1173, 1174, 1177 (7th Cir. 1997);

Bryan v. Duckworth, 88 F.3d 431, 433 (7th Cir.

1996); Whitford v. Boglino, 63 F.3d 527, 533

(7th Cir. 1995).

Right to it, we have never held that three months of segre-

gated confinement constitutes a significant and atypical hard-

ship. Nor have we ever found that unsanitary conditions

No. 23-1703 55

within a term of segregated confinement have sufficed to es-

tablish a protected liberty interest. Indeed, we have “de-

scribed an inmate’s liberty interest in avoiding segregation as

very limited or even nonexistent.” Marion, 559 F.3d at 697; see

Wagner, 128 F.3d at 1175 (describing “the right to litigate dis-

ciplinary confinements” as “vanishingly small”).

Nothing improves for Jackson if the focus turns to the U.S.

Reports. The Supreme Court has provided guidance in two

cases occupying opposite ends of the spectrum. In Sandin v.

Conner, the Court found no liberty interest where the inmate

served 30 days in disciplinary segregation because the condi-

tions in segregated confinement “mirrored those conditions

imposed upon inmates in administrative segregation and

protective custody.” 515 U.S. 472, 486 (1995).

Ten years later in Wilkinson v. Austin, the Court encoun-

tered facts on the opposite end of the spectrum. There a group

of inmates challenged their transfers to Ohio’s Supermax fa-

cility which had “more restrictive [conditions] than any other

form of incarceration in Ohio,” depriving inmates “of almost

any environmental or sensory stimuli and of almost all hu-

man contact.” 545 U.S. at 214. Subjecting Ohio prisoners to

these “harsh conditions” for years on end amounted to an

“atypical and significant hardship,” resulting in a protected

liberty interest for purposes of a procedural due process

claim. Id. at 224.

To my eye, Jackson’s term in segregated confinement falls

much closer to the conditions described in Sandin than it does

Wilkinson. Jackson’s commitment to disciplinary segregation

was not unlimited in duration: he received three months as

punishment which is similar to the one-month term of segre-

gation in Sandin, and far shorter in duration than Wilkinson,

56 No. 23-1703

where an inmate’s placement in the Supermax was subject

only to an annual review. See id. Even if I am mistaken, noth-

ing in Sandin or Wilkinson comes anywhere close to suggest-

ing a violation of Jackson’s procedural due process rights at

his disciplinary hearing.

The majority’s reliance on Taylor v. Riojas is most confus-

ing. Riojas is an Eighth Amendment case—a conditions of con-

finement case—where prison officials placed Texas inmate

Trent Taylor in an extremely unsanitary cell covered “nearly

floor to ceiling in ‘“massive amounts” of feces.’” 592 U.S. 7, 8

(2020). Taylor refused food and water for four days due to fear

of contamination and was left to “sleep naked in sewage” on

his cell floor. Id.

The Court’s summary reversal of a grant of qualified im-

munity in Taylor “reinforced the principle that prison officials

do not have unlimited discretion to confine inmates in deplor-

able conditions.” Op. at 16. But the conditions alleged by Jack-

son fall short of those experienced by Taylor. Regardless, Ri-

ojas is through and through an Eighth Amendment case, with

the Justices saying not a word about procedural due process.

But perhaps that is the aim of today’s majority opinion—to

somehow force fit an Eighth Amendment claim into a due

process mold.

Today’s decision is a legal paradox. Remember Abre Jack-

son’s actual claim: he sued the prison officials who conducted

his disciplinary hearing, contending they deprived him of a

protected liberty interest without due process. His claim is all

about the process he received at the disciplinary hearing—he

believes he should have been able to call additional witnesses

No. 23-1703 57

and review Stateville video evidence. But Jackson has never

alleged that the officials who presided over his hearing were

aware of the unsanitary conditions he came to experience in

the segregation unit. If the hearing officials were not aware of

the conditions, how could they have accounted for them in

evaluating what process Jackson was due at the disciplinary

hearing?

By relying on Jackson’s allegations about the conditions of

the segregation unit to find a protected liberty interest, the

majority essentially conflates an Eighth Amendment condi-

tions of confinement analysis with a Fourteenth Amendment

procedural due process claim. It is far from clear to me, as a

practical matter, what the difference would be after today’s

decision. We will now be using the Due Process Clause to as-

sess prison conditions unknown at the time prison officials

decide that misconduct warrants a term of disciplinary segre-

gated confinement. And how this will work in practice is an-

yone’s guess.

Do not misread what I am saying. To be sure, in Wilkinson

the Supreme Court considered the “conditions of confine-

ment” at the Supermax facility in assessing whether the in-

mates had “a liberty interest in avoiding transfer” to those

“more adverse conditions.” 545 U.S. at 221–22. But the Court

in Wilkinson was not licensing courts to consider the full range

of conditions that might support an Eighth Amendment claim

when assessing whether segregated confinement gives rise to

a protected liberty interest under the Fourteenth Amend-

ment’s Due Process Clause. Instead, the Court focused solely

on conditions that would accompany a prisoner’s transfer to

a Supermax facility—lack of all human contact, undimmed

lights, and limited exercise—all conditions which would have

58 No. 23-1703

been known to prison officials at the time of the transfer de-

termination. See id. at 223–24; see also Lisle, 933 F.3d at 721

(“[I]f the disciplinary measures do not ‘substantially worsen the

conditions of confinement’ of an inmate, then he has not been

deprived of a protected liberty interest.” (emphasis added)

(quoting Miller v. Dobier, 634 F.3d 412, 414–15 (7th Cir. 2011))).

Go back to Jackson’s claim once again. Jackson com-

plained about three aspects of his segregated confinement:

loud and unruly inmates in his unit, unsanitary cell and

shower conditions, and contaminated water. While we accept

these allegations as true, Jackson’s observations about the

conditions in segregation do not automatically lend support

to his procedural due process claim. The question is whether

the hearing officers knew of these conditions—the same way

the conditions accompanying the Ohio Supermax program

were known in Wilkinson.

I am not doubting that there may be instances where an

inmate adequately alleges that prison officials presiding over

disciplinary hearing were on notice that segregated confine-

ment included certain conditions, beyond the obvious loss of

privileges it entails, that “impose[d] [an] atypical and signifi-

cant hardship on the inmate in relation to the ordinary inci-

dents of prison life.” Sandin, 515 U.S. at 484. That is not this

case, though.

After considering how the majority’s test would apply to

the facts of Jackson’s claim, I am left to wonder whether the

whole point of today’s decision is to make procedural due

process coterminous with the protections afforded by the

Eighth Amendment. Is the majority suggesting that deplora-

ble prison conditions, known or unknown at the time of a dis-

ciplinary hearing, mean that prisoners must receive mini

No. 23-1703 59

trials prior to being housed in segregated confinement? If so,

that conclusion will work a sea change in today’s law for

prison officials conducting routine disciplinary hearings that

end with terms of segregated confinement. And I see no way

that Adams v. Reagle would remain good law in such a regime.

The majority’s approach becomes all the more

confounding when you compare it against well-established

Eighth Amendment principles. In that context, a prisoner

must demonstrate that the prison official “k[new] of and

disregard[ed] an excessive risk to inmate health or safety.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). But the majority

enforces no similar knowledge requirement with respect to

the prison officials who conducted Jackson’s disciplinary

hearing. So the majority’s error today is at least two-fold: it

applies an Eighth Amendment gloss to our analysis of

procedural due process claims, while simultaneously

lowering the standard that ordinarily governs claims

challenging an inmate’s conditions of confinement. In its

attempt to craft a bright-line rule, I worry that the majority’s

decision will wreak havoc within routine disciplinary

proceedings that happen all day, every day in federal and

state prisons across the country.

We could have easily avoided all of this by assuming Jack-

son’s liberty interest and resolving this case in a few pages

because, by any fair measure, Jackson received adequate pro-

cess. And, at the very least, the defendants have qualified im-

munity.

III

The majority’s desire to see more development in the law

defining the limits of segregated confinement is a view I

60 No. 23-1703

share. And I also believe that in time the law can learn much

from social science research informing the effects of pro-

longed solitary confinement.

But this case—brought only in the name of procedural due

process and not under the Eighth Amendment—saves those

difficult questions for another day. Instead of exercising cau-

tion, today’s decision reaches to draw legal lines divorced

from current law and with no prospect of sound practical im-

plementation. In my respectful view, judicial restraint should

have defined our path here.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.