Amicus Curiae Brief — Dennis Wayne Hope, Petitioner v. Todd Harris, et al.

No. 21-1065

IN THE

Supreme Court of the United States

___________

DENNIS WAYNE HOPE,

v.

Petitioner,

TODD HARRIS, CHAD REHSE, LEONARD ESCHESSA, JONI

WHITE, KELLY ENLOE, MELISSA BENET, B. FIVEASH,

___________

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

___________

BRIEF OF AMICI CURIAE PROFESSORS AND

PRACTITIONERS OF PSYCHIATRY,

PSYCHOLOGY, AND MEDICINE IN SUPPORT

OF PETITIONER

___________

BENJAMIN I. FRIEDMAN

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 835-7000

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

CODY L. REAVES

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Amici Curiae

February 18, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTERESTS OF AMICI CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT................................................................

3

ARGUMENT ........................................................

6

I. SOLITARY CONFINEMENT SUBJECTS

PRISONERS TO SEVERE AND IRREVERSIBLE

PSYCHOLOGICAL

AND

PHYSICAL INJURIES ................................

6

A. Solitary Confinement Deprives Prisoners

of Necessary Social Interaction and Environmental Stimulation ............................

6

B. The Scientific Consensus Shows that Solitary Confinement Is Uniquely Harmful

9

II. ALLEGATIONS OF LONG-TERM SOLITARY CONFINEMENT CAN STATE AN

EIGHTH AMENDMENT CLAIM................

14

CONCLUSION ....................................................

20

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Apodaca v. Raemisch, 139 S. Ct. 5

(2018) ...................................................... 1, 4, 16

Baze v. Rees, 553 U.S. 35 (2008) ..................

17

Brown v. Or. Dep’t of Corr., 751 F.3d 983

(9th Cir. 2014) ...........................................

7

Brown v. Plata, 563 U.S. 493 (2011) ...........

1

Bucklew v. Precythe, 139 S. Ct. 1112

(2019) ........................................................ 2, 4, 17

Davis v. Ayala, 576 U.S. 257 (2015) ........ 1, 4, 16

Florence v. Bd. of Chosen Freeholders of

Cnty. of Burlington, 566 U.S. 318 (2012)

8

Glossip v. Gross, 576 U.S. 863 (2015) .......... 1, 16

Hutto v. Finney, 437 U.S. 678 (1978)... 2, 4, 14, 15

Incumaa v. Stirling, 791 F.3d 517 (4th Cir.

2015) ..........................................................

9

In re Medley, 134 U.S. 160 (1890) ............... 4, 5, 16

Ruiz v. Texas, 137 S. Ct. 1246 (2017) ..........

4

Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d

549 (3d Cir. 2017), cert. denied sub nom.

Williams v. Wetzel, 138 S. Ct. 357

(2017) .........................................................

8

LEGISLATIVE MATERIALS

Reassessing Solitary Confinement: The

Human Rights, Fiscal, and Public Safety

Consequences:

Hearing

Before

the

Subcomm. on the Constitution, Civil

Rights, & Human Rights of the S. Comm.

on

the

Judiciary,

112th

Cong.

72 (2012) ................................................ 7, 10, 17

iii

TABLE OF AUTHORITIES – continued

Page

OTHER AUTHORITIES

Kenneth L. Appelbaum, American Psychiatry Should Join the Call to Abolish Solitary Confinement, 43 J. Am. Acad. Psychiatry & L. 406 (2015) ..................................

4

Elizabeth Bennion, Banning the Bing: Why

Extreme Solitary Confinement is Cruel

and Far Too Usual Punishment, 90 Ind.

L.J. 741 (2015) ............................... 7, 10, 11, 19

Nicole Branan, Stress Kills Brains Cells Off,

18 Sci. Am. 10 (June 2007) .......................

11

Lauren Brinkley-Rubinstein et al., Association of Restrictive Housing During Incarceration With Mortality After Release,

JAMA Network Open, Oct. 4, 2019,

https://jamanetwork.com/journals/

jamanetworkopen/fullarticle/2752350......

13

Jennifer Gonnerman, Before the Law, The

New

Yorker

(Oct.

6,

2014),

https://www.newyorker.com/magazine/2014/10/06/before-the-law .................

14

Jennifer Gonnerman, Kalief Browder, 19932015, The New Yorker (June 7, 2015),

http://www.newyorker.com/news/newsdesk/kaliefbrowder-1993-2015..................

14

Stuart Grassian & Terry Kupers, The Colorado Study vs. The Reality of Supermax

Confinement, 13 Corr. Mental Health

Rep. 1 (2011)..............................................

12

Stuart Grassian, Psychiatric Effects of

Solitary Confinement, 22 Wash. U. J.L. &

Pol’y 325 (2006) .................................... passim

iv

TABLE OF AUTHORITIES – continued

Page

Stuart Grassian, Psychopathological Effects

of Solitary Confinement, 140 Am. J. Psychiatry 1450 (1983) ..............................

10

Thomas L. Hafemeister & Jeff George, The

Ninth Circle of Hell: An Eighth

Amendment

Analysis

of

Imposing

Prolonged

Supermax

Solitary

Confinement on Inmates with a Mental

Illness, 90 Denv. U. L. Rev. 1

(2012) ................................................ 8, 9, 12, 18

Craig Haney, Mental Health Issues in LongTerm

Solitary

and

“Supermax”

Confinement, 49 Crime & Delinq. 124

(2003) ..................................................... passim

Craig Haney, The Psychological Effects of

Solitary Confinement: A Systematic

Critique, 47 Crime & Just. 365

(2018) ................................................. 7, 9, 17, 18

Craig Haney, Restricting the Use of Solitary

Confinement, 1 Ann. Rev. Criminology

285 (2018) .................................................. 6, 12

Fatos Kaba et al., Solitary Confinement and

Risk of Self-Harm Among Jail Inmates,

104 Am. J. Pub. Health 442 (2014) ..........

12

Terry A. Kupers, Isolated Confinement:

Effective Method for Behavior Change or

Punishment for Punishment’s Sake?, in

The Routledge Handbook for Int’l Crime

& Just. Studies 213 (Bruce A. Arrigo &

Heather Y. Bersot eds., 2014) ................... 7, 13

Bruce S. McEwen et al., Stress Effects on

Neuronal

Structure:

Hippocampus,

Amygdala, and Prefrontal Cortex, 41 Neuropsychopharmacology 3 (2016) ...............

11

v

TABLE OF AUTHORITIES – continued

Page

Jeffrey L. Metzner & Jamie Fellner,

Solitary Confinement and Mental Illness

in U.S. Prisons: A Challenge for Medical

Ethics, 38 J. Am. Acad. Psychiatry & L.

104 (2010) .................................................. 9, 18

Jared Edward Reser, Solitary Mammals

Provide an Animal Model for Autism

Spectrum Disorders, 128 J. Comp. Psychol. 99 (2014) ...........................................

6

Carol Schaeffer, “Isolation Devastates the

Brain”: The Neuroscience of Solitary

Confinement, Solitary Watch (May 11,

2016), https://solitarywatch.org/2016/05/

11/isolation-devastates-the-brain-theneuroscience-of-solitary-confinement/ ...... 11, 19

Dana G. Smith, Neuroscientists Make a

Case Against Solitary Confinement, Sci.

Am. (Nov. 9, 2018) .....................................

11

Peter Scharff Smith, The Effects of Solitary

Confinement on Prison Inmates: A Brief

History and Review of the Literature, 34

Crime & Just. 441 (2006) .......................... 10, 12

U.N. Human Rights Council, U.N. Special

Rapporteur, Interim Report of the Special

Rapporteur on Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/66/268 (Aug. 5,

2011) ..........................................................

13

INTERESTS OF AMICI CURIAE1

Amici curiae are experts in psychiatry, medicine,

and psychology who have spent decades studying solitary confinement and its psychological and physiological effects on prisoners. Based on their own work—

which this Court has relied on frequently2—and an assessment of the professional literature, amici have

concluded that solitary confinement has devastating,

often irreversible effects on prisoners’ mental and

physical health. In fact, solitary confinement of more

than ten days causes harms both different from and

greater than those incurred by prisoners in the general population. And the longer the confinement, the

more severe the harm will be and the greater the

chance that such harm will be irreversible.

Given their expertise and their knowledge of solitary

confinement’s devastating effects, amici have a particular interest in this case. Amici believe that the decision below is emblematic of lower courts’ all-too-common failure to recognize that solitary confinement

causes unique psychological and physiological harm,

1 Under

Supreme Court Rule 37.2(a), counsel for amici provided notice to all parties at least ten days prior to the due date,

and all parties granted consent. Pursuant to Rule 37.6, amici

state that no counsel for any party authored this brief in whole or

in part and that no entity or person, aside from amici, their members, and their counsel, made any monetary contribution toward

the preparation or submission of this brief.

2 See, e.g., Glossip v. Gross, 576 U.S. 863, 926 (2015) (Breyer,

J., dissenting) (citing scholarship by Dr. Craig Haney and Dr.

Stuart Grassian); Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring) (citing scholarship by Dr. Grassian); Apodaca v. Raemisch, 139 S. Ct. 5, 9 & n.8 (2018) (Sotomayor, J., respecting denial of certiorari) (citing scholarship by Dr. Grassian);

Brown v. Plata, 563 U.S. 493, 518 (2011) (citing scholarship by

Dr. Haney).

2

especially for prisoners—like Mr. Hope—who already

suffer from mental health issues. Amici also believe

that—based on this Court’s precedent and on the overwhelming scientific consensus about solitary confinement’s harmful effects—Mr. Hope’s allegations that he

has spent over twenty-three years (now twenty-seven

years) in solitary confinement suffice to state an

Eighth Amendment claim. See Bucklew v. Precythe,

139 S. Ct. 1112, 1123–24 (2019); Hutto v. Finney, 437

U.S. 678, 686–87 (1978).

Amici are the following:

Lauren Brinkley-Rubinstein, Ph.D., is Associate

Professor in the Department of Social Medicine and

the Center for Health Equity Research at the University of North Carolina at Chapel Hill. She has studied

the health impact of incarceration for the last fifteen

years and has shown that any amount of solitary confinement is associated with a higher risk of untimely

death after release.

Stuart Grassian, M.D., is a psychiatrist who taught

at Harvard Medical School for almost thirty years. He

has evaluated hundreds of prisoners in solitary confinement and published numerous articles on the psychiatric effects of solitary confinement.

Craig W. Haney, Ph.D, J.D., is Distinguished Professor of Psychology and UC Presidential Chair at the

University of California, Santa Cruz. He has researched and published numerous articles on the psychological effects of solitary confinement and has provided expert testimony before numerous courts and

the United States Senate.

Angela Hattery, Ph.D., is Professor of Women and

Gender Studies at the University of Delaware. She and

Professor Smith (below) are coauthors of Way Down in

3

the Hole: Race, Intimacy, and the Reproduction of Racial Ideologies in Solitary Confinement (forthcoming

2022).

Terry A. Kupers, M.D., M.S.P., a Distinguished Life

Fellow of the American Psychiatric Association, is Professor Emeritus at The Wright Institute. He has provided expert testimony in several lawsuits about

prison conditions and published books and articles on

related subjects.

Pablo Stewart, M.D., is Clinical Professor of Psychiatry at the University of Hawaii. He has worked in the

criminal justice system for decades and as a court-appointed expert on the effects of solitary confinement

for more than thirty years.

Earl Smith, Ph.D., is Emeritus Distinguished Professor of American Ethnic Studies and Sociology at

Wake Forest University and is currently teaching classes in Sociology, African and African American Studies, and Women & Gender Studies at the University of

Delaware. He is currently completing work on a threeyear project examining the living and working conditions in solitary confinement units in a state prison

system.

Brie Williams, M.D., M.S., is a Professor of Medicine,

Director of the Criminal Justice & Health Program,

and Director of Amend: Changing Correctional Culture at the University of California, San Francisco.

She has published numerous articles on the physical

effects of solitary confinement.

INTRODUCTION AND

SUMMARY OF ARGUMENT

More than a century ago, this Court first observed

that solitary confinement—even for short periods—

causes prisoners to become “violently insane.” In re

4

Medley, 134 U.S. 160, 168 (1890). Amici’s decades of

research and scholarship confirm what this Court observed long ago: Solitary confinement imposes an “immense amount of torture and agony” on prisoners.

Apodaca v. Raemisch, 139 S. Ct. 5, 10 (2018) (Sotomayor, J., respecting denial of certiorari); see Davis

v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring) (“[R]esearch still confirms what this Court

suggested over a century ago: Years on end of neartotal isolation exact a terrible price.” (citing Stuart

Grassian, Psychiatric Effects of Solitary Confinement,

22 Wash. U. J.L. & Pol’y 325 (2006))).

Over the past 150 years, scientists have frequently

studied the psychological and physical effects of solitary confinement. And in nearly every instance, these

studies have “concluded that subjecting an individual

to more than 10 days of involuntary segregation results in a distinct set of emotional, cognitive, social,

and physical pathologies.” Kenneth L. Appelbaum,

American Psychiatry Should Join the Call to Abolish

Solitary Confinement, 43 J. Am. Acad. Psychiatry & L.

406, 410 (2015) (quoting David H. Cloud et al., Public

Health and Solitary Confinement in the United States,

105 Am. J. Pub. Health 18, 21 (2015)).

Because of these severe, debilitating effects, this

Court has held that solitary confinement can violate

the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Hutto v. Finney, 437 U.S. 678,

685 (1978). Mr. Hope’s allegations that prison officials

have subjected him to indefinite solitary confinement

for over twenty-seven years should have been more

than enough to state a claim under the Eighth Amendment. See Bucklew v. Precythe, 139 S. Ct. 1112, 1123–

24 (2019); cf. Ruiz v. Texas, 137 S. Ct. 1246, 1247

(2017) (Breyer, J., dissenting from application for stay

5

of execution) (“[E]xtended solitary confinement alone

raises serious constitutional questions.”).

But the Fifth Circuit rejected Mr. Hope’s Eighth

Amendment claim out of hand. The court spent all of

two sentences discussing this claim—both of which

cited an opinion from this Court that did not involve

solitary confinement. Pet. App. 17a n.5 (quoting Hutto,

437 U.S. at 685). The Fifth Circuit ignored this Court’s

precedents and failed to acknowledge decades of scientific research establishing that long-term solitary confinement is exceptionally—and uniformly—detrimental to prisoners’ mental and physical health. This

Court’s precedent and the scientific evidence demand

more.

In short, the Fifth Circuit’s decision to dismiss Mr.

Hope’s Eighth Amendment claim at the threshold conflicts with the long-established scientific consensus.

More than a century ago, the scientific community established—and this Court recognized—that long-term

solitary confinement poses risks and harms far beyond

what a prisoner faces in the general population. See In

re Medley, 134 U.S. at 168. Yet in the Fifth Circuit’s

view, as a matter of law, long-term solitary confinement can never state a claim under the Eighth Amendment unless there are also allegations that the conditions were “unsanitary.” That is wrong. Nothing in this

Court’s precedent endorses that view, and over a century of scientific research flatly contradicts it.

6

ARGUMENT

I. SOLITARY CONFINEMENT SUBJECTS

PRISONERS TO SEVERE AND IRREVERSIBLE PSYCHOLOGICAL AND PHYSICAL INJURIES.

Humans, by their nature, are social. Like food and

water, social interaction and environmental stimulation are necessary for human wellbeing. Craig Haney,

Restricting the Use of Solitary Confinement, 1 Ann.

Rev. Criminology 285, 298 (2018) (collecting studies).

Solitary confinement3 deprives prisoners of these necessities and subjects them to conditions so harsh that

they amount to torture, leaving permanent psychological and physical scars.

A. Solitary Confinement Deprives Prisoners of Necessary Social Interaction and

Environmental Stimulation.

Some species are naturally solitary, seeking out community infrequently and often for limited purposes.

Jared Edward Reser, Solitary Mammals Provide an

Animal Model for Autism Spectrum Disorders, 128 J.

Comp. Psych. 99, 100–01 (2014). Humans are the opposite: “[T]he human brain is literally wired to connect

with others.” Haney, Restricting the Use, supra, at 296

(internal quotation marks omitted). Basic executive

function and physical health depend on adequate exposure to positive environmental stimuli, which allows

humans to “maintain[] an adequate state of alertness

3 “Solitary confinement,” as employed in the scientific literature and this brief, describes imprisonment under conditions

where meaningful social interaction and positive environmental

stimuli are severely restricted. Mr. Hope’s isolation in solitary

confinement is consistent with the typical conditions of solitary

confinement at the facilities that were the subjects of the studies

discussed here.

7

and attention.” Grassian, Psychiatric Effects, supra, at

330; Craig Haney, The Psychological Effects of Solitary

Confinement: A Systematic Critique, 47 Crime & Just.

365, 374–75 (2018).

Yet near total absence of social interaction and positive environmental stimulation are the hallmarks of

solitary confinement. See Craig Haney, Mental Health

Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 125–27 (2003).

Whereas prisoners in the general population may

leave their cells for up to ten hours a day—during

which they can meaningfully interact with other human beings, have contact visits, and access prison libraries, worship services, and vocational programs,

see Haney, The Psychological Effects of Solitary Confinement, supra, at 388 n.12; Brown v. Or. Dep’t of

Corr., 751 F.3d 983, 985 (9th Cir. 2014)—prisoners in

solitary confinement often spend at least twenty-two

hours every day alone in small, bare cells. Elizabeth

Bennion, Banning the Bing: Why Extreme Solitary

Confinement Is Cruel and Far Too Usual Punishment,

90 Ind. L.J. 741, 753 (2015). These cells contain only a

bunk, a toilet, and a sink. Id. Within them, prisoners

“sleep, eat, and defecate . . . in spaces that are no more

than a few feet apart.” Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety

Consequences: Hearing Before the Subcomm. on the

Const., C.R., & Hum. Rights of the S. Comm. on the

Judiciary, 112th Cong. 72, 75 (2012) (hereinafter Reassessing Solitary Confinement Hearing) (prepared

statement of Dr. Craig Haney, Professor of Psychology,

University of California, Santa Cruz).

The only sounds a prisoner will hear from his cell are

the slamming of cell doors and intermittent screaming

from other prisoners—nothing that “constitute[s]

meaningful human communication.” Terry A. Kupers,

8

Isolated Confinement: Effective Method for Behavior

Change or Punishment for Punishment’s Sake?, in The

Routledge Handbook of International Crime and Justice Studies 213, 215–16 (Bruce A. Arrigo & Heather

Y. Bersot eds., 2014). These sounds do nothing to alleviate solitary confinement’s harmful effects. If anything, they exacerbate the other negative environmental stimuli—the stench of feces and urine, the constant

glare of fluorescent lights—that surround a prisoner

in solitary confinement. See, e.g., Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An

Eighth Amendment Analysis of Imposing Prolonged

Supermax Solitary Confinement on Inmates with a

Mental Illness, 90 Denv. U. L. Rev. 1, 37–39, 39 n.217

(2012).

And the short time prisoners spend outside their

cells provides no respite from these conditions. Haney,

Mental Health Issues, supra, at 126. Prisoners in solitary confinement may occasionally leave their cells to

exercise, but they must do so alone “in caged-in or cement-walled areas that are so constraining they are

often referred to as ‘dog runs.’” Id. Trips to the “dog

runs” usually come after strip and cavity searches so

painful and intrusive that many prisoners forego exercise to avoid them.4 See, e.g., Williams v. Sec’y Pa.

As this Court has recognized, a strip search can involve

“instructions to raise arms, to display foot insteps, to expose the

back of the ears, to move or spread the buttocks or genital areas,

or to cough in a squatting position,” which may be done “while an

officer observes from a distance of, say, five feet or more [or] may

mean a visual inspection from a closer, more uncomfortable

distance.” Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 566 U.S. 318, 325 (2012); see id. at 345 (Breyer, J.,

dissenting) (“[A]ll courts have recognized the ‘severe if not gross

interference with a person’s privacy’ that accompany visual bodycavity searches.” (cleaned up)).

4

9

Dep’t of Corr., 848 F.3d 549, 554 (3d Cir. 2017)

(describing strip searches so invasive that a prisoner

sacrificed the opportunity to exercise for nearly seven

years to avoid them), cert. denied sub nom. Williams v.

Wetzel, 138 S. Ct. 357 (2017); Incumaa v. Stirling, 791

F.3d 517, 531 (4th Cir. 2015) (noting that a prisoner in

solitary confinement experienced “near-daily cavity

and strip searches”). Apart from these strip and cavity

searches, prisoners’ only human contact while in

solitary confinement occurs when guards place them

in restraints. Hafemeister & George, supra, at 17.

Thus, compared to the general population, prisoners

in solitary confinement suffer, “to the fullest extent

possible, complete sensory deprivation and social

isolation.” Id.

B. The Scientific Consensus Shows that

Solitary

Confinement

Is

Uniquely

Harmful.

The complete social isolation and sensory

deprivation of solitary confinement cause injuries

different in both kind and degree from those associated

with ordinary incarceration. Without environmental

stimulation or social interaction, prisoners in solitary

confinement endure a condition that “can be as

clinically distressing as physical torture,” see Jeffrey

L. Metzner & Jamie Fellner, Solitary Confinement and

Mental Illness in U.S. Prisons: A Challenge for Medical

Ethics, 38 J. Am. Acad. Psychiatry & L. 104, 104

(2010), and is, in fact, “frequently used as a component

of torture,” Haney, The Psychological Effects of

Solitary Confinement, supra, at 373–75. This

condition—especially when prolonged—imposes grave

psychological and physical harms. See id. at 367–68,

370–75 (collecting studies); Grassian, Psychiatric

Effects, supra, at 335–38.

10

Psychological injuries stemming from solitary

confinement commonly include cognitive dysfunction,

severe depression, memory loss, anxiety, paranoia,

panic, hallucinations, and stimuli hypersensitivity.

See Haney, Mental Health Issues, supra, at 130–31,

134–35 (collecting studies); Grassian, Psychiatric

Effects, supra, at 335–36, 349, 370–71; Peter Scharff

Smith, The Effects of Solitary Confinement on Prison

Inmates: A Brief History and Review of the Literature,

34 Crime & Just. 441, 488–90 (2006).

Self-mutilation and suicidal ideation are also

characteristic of prisoners in solitary confinement. See

Grassian, Psychiatric Effects, supra, at 336, 349;

Stuart Grassian, Psychopathological Effects of

Solitary Confinement, 140 Am. J. Psychiatry 1450,

1453 (1983). Explaining this phenomenon to Congress,

Dr. Haney described how one prisoner “used a

makeshift needle and thread from his pillowcase to

sew his mouth completely shut,” and another

“amputated one of his pinkie fingers and chewed off

the other, removed one of his testicles and scrotum,

sliced off his ear lobes, and severed his Achilles

tendon.” Reassessing Solitary Confinement Hearing,

supra, at 80–81 (prepared statement of Dr. Craig

Haney, Professor of Psychology, University of

California, Santa Cruz).

Even when prisoners can overcome the psychological

trauma of solitary confinement, they find themselves

suffering from a host of serious physiological injuries,

including

hypertension,

heart

palpitations,

gastrointestinal disorders, headaches, and severe

insomnia. Haney, Mental Health Issues, supra, at 133;

Smith, The Effects of Solitary Confinement on Prison

Inmates, supra, at 488–90. Solitary confinement also

“increase[s] activation of the brain’s stress systems,”

Bennion, supra, at 762 (quoting John T. Cacioppo &

11

Stephanie Ortigue, Social Neuroscience: How a

Multidisciplinary Field Is Uncovering the Biology of

Human Interactions, Cerebrum, Dec. 19, 2011, at 7–8),

which eventually kills brain cells and “rewire[s]” the

brain. See Carol Schaeffer, “Isolation Devastates the

Brain”: The Neuroscience of Solitary Confinement,

Solitary

Watch

(May

11,

2016),

https://solitarywatch.org/2016/05/11/isolationdevastates-the-brain-the-neuroscience-of-solitaryconfinement/; Nicole Branan, Stress Kills Brains Cells

Off, 18 Sci. Am. 10 (June 2007). These physiological

changes can affect the hippocampus, a brain area

important for emotion regulation and memory, see

Dana G. Smith, Neuroscientists Make a Case Against

Solitary Confinement, Sci. Am. (Nov. 9, 2018),

https://www.scientificamerican.com/article/neuroscien

tists-make-a-case-against-solitary-confinement/, and

it can also increase the size of the amygdala, which

makes the brain more susceptible to stress, creating a

vicious cycle, see Bruce S. McEwen et al., Stress Effects

on Neuronal Structure: Hippocampus, Amygdala, and

Prefrontal Cortex, 41 Neuropsychopharmacology 3,

12–14 (2016).

Not only are these psychological and physical

injuries devastating in their own right, studies have

consistently shown that they are also more severe than

the injuries associated with ordinary imprisonment.

For instance, one study in Denmark found that

prisoners who spent more than four weeks in solitary

confinement were twenty times more likely to require

psychiatric hospitalization. Bennion, supra, at 758

(citing Dorte Maria Sestoft et al., Impact of Solitary

Confinement on Hospitalization Among Danish

Prisoners in Custody, 21 Int’l J.L. & Psychiatry 99, 103

(1998)). Similarly, a California study by Dr. Haney

concluded that the distress and suffering of general

12

population prisoners bore “absolutely no comparison to

the level of suffering and distress” experienced by

prisoners in solitary confinement. Expert Report of

Craig Haney at 81, Ashker v. Brown, No. 4:09-cv05796-CW (N.D. Cal. Mar. 12, 2015) (available at

https://ccrjustice.org/sites/default/files/attach/2015/07/

Redacted_Haney%20Expert%20Report.pdf). Instead,

“[o]n nearly every single specific dimension . . .

measured, the [solitary confinement] sample was in

significantly more pain, were more traumatized and

stressed, and manifested more isolation-related

pathological reactions.” Id. at 81–82.

Other studies have similarly concluded that

prisoners

“in

solitary

confinement

suffered

significantly more both physically and psychologically

than the prisoners in the [general population] control

group.” Smith, The Effects of Solitary Confinement on

Prison Inmates, supra, at 477; Hafemeister & George,

supra, at 46–47 (describing Washington study

concluding that mental illness was twice as common

for prisoners in solitary confinement). For example,

rates of self-mutilation and suicide are far higher for

prisoners in solitary confinement. Grassian,

Psychiatric Effects, supra, at 336, 349; Haney,

Restricting the Use, supra, at 294; Fatos Kaba et al.,

Solitary Confinement and Risk of Self-Harm Among

Jail Inmates, 104 Am. J. Pub. Health 442, 445–47

(2014) (finding that inmates in solitary confinement

were about 6.9 times as likely to commit acts of selfharm). Indeed, although prisoners in solitary

confinement comprise less than 10% of the United

States prison population, they generally account for

50% of all prisoner suicides. See Stuart Grassian &

Terry Kupers, The Colorado Study vs. The Reality of

13

Supermax Confinement, 13 Corr. Mental Health Rep.

1, 9 (2011).5

Moreover, prisoners need not be in solitary

confinement for months or years to realize these

psychological and physiological injuries. The onset of

adverse symptoms is almost immediate. See, e.g.,

Grassian, Psychiatric Effects, supra, at 331 (noting

measurable harm within days of solitary confinement).

Within days of placement in solitary confinement,

brain scans may reflect “abnormal pattern[s]

characteristic of stupor and delirium.” Id.; U.N.

Human Rights Council, U.N. Special Rapporteur,

Interim Report of the Special Rapporteur on Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment, at 9, U.N. Doc. A/66/268 (Aug. 5, 2011)

(concluding that “harmful psychological effects of

isolation can become irreversible” after only 15 days of

solitary confinement). Thus, where, as in Mr. Hope’s

case, the deprivation is “prolonged,”6 some harms are

inevitable, even if symptoms are not obvious or take

time to manifest.

And the longer solitary confinement persists, the

greater the likelihood that the psychological and

physiological injuries will be irreversible. Haney,

5 Accord Lauren Brinkley-Rubinstein et al., Association of Re-

strictive Housing During Incarceration with Mortality After Release, JAMA Network Open, Oct. 4, 2019, at 1, 5–6, 9,

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2

752350 (studying more than 225,000 prisoners in North Carolina

and finding “[c]ompared with individuals who were incarcerated

and not placed in restrictive housing, those who spent time in

restrictive housing were more likely to die in the first year after

release”).

6 Experts generally consider solitary confinement “prolonged”

when it exceeds three months. See Kupers, Isolated Confinement,

supra, at 214.

14

Mental Health Issues, supra, at 137–41. Prisoners

often find the psychological dysfunctions caused by

solitary confinement permanently disabling. Id. By

transforming a person’s emotions, personality, and

cognition, solitary confinement may render prisoners

permanently ill-suited to life in a less restrictive

environment. Grassian, Psychiatric Effects, supra, at

332–33. For example, Kalief Browder, who spent

seventeen months in solitary confinement, attempted

suicide twice within six months of his release. Jennifer

Gonnerman, Before the Law, The New Yorker (Oct. 6,

2014),

https://www.newyorker.com/magazine/2014/10/06/bef

ore-the-law. Freed from isolation, Mr. Browder still

described himself as “mentally scarred” and fearful

that the “things that changed” about his personality

“might not go back” with time. Id. Less than two years

later, he hanged himself. Jennifer Gonnerman, Kalief

Browder, 1993-2015, The New Yorker (June 7, 2015),

http://www.newyorker.com/news/newsdesk/kaliefbrowder-1993-2015.

This overwhelming scientific evidence shows that

the psychological and physical harms associated with

solitary confinement are not endured by prisoners in

the general population, are often irreversible, and are

so severe that they can be debilitating or fatal.

II. ALLEGATIONS OF LONG-TERM SOLITARY

CONFINEMENT CAN STATE AN EIGHTH

AMENDMENT CLAIM.

More than forty years ago, this Court recognized

that solitary confinement can violate the Eighth

Amendment’s prohibition on “cruel and unusual

punishments.” Hutto, 437 U.S. at 685. Since that time,

the Court has never abrogated that holding, much less

endorsed the Fifth Circuit’s view that—as a matter of

law—allegations of long-term solitary confinement

15

alone can never state a claim under the Eighth

Amendment. Yet the Fifth Circuit dismissed Mr.

Hope’s Eighth Amendment claim with just two

sentences. The Fifth Circuit’s decision eschews

common sense, ignores the long-standing scientific

evidence, and distorts this Court’s precedents.

1. The Fifth Circuit’s complete reasoning on Mr.

Hope’s Eighth Amendment claim was this: First, the

court noted that “[l]ong-term solitary confinement is

not per se cruel and unusual.” Pet. App. 17a (citing

Hutto, 437 U.S. at 686). And in a footnote, the court

expressly held that Mr. Hope’s Eighth Amendment

claim “based on the sheer length of his confinement”

fails because “the length of isolation sentences [i]s not

considered in a vacuum.” Id. at 17a n.5 (quoting Hutto,

437 U.S. at 685). This superficial analysis distorts the

proper inquiry for Eighth Amendment claims based on

long-term solitary confinement and disregards this

Court’s directions.

The Fifth Circuit’s holding that a prisoner can never

state an Eighth Amendment claim based on the length

of his confinement alone depends on a misreading of

Hutto. There, the Court considered the practice of

“punitive isolation,” where an “average of 4, and

sometimes as many as 10 or 11, prisoners were

crowded into” a cell. In upholding the district court’s

decision forbidding Arkansas from sentencing inmates

to these conditions for more than 30 days, the Court

noted that the district court did not consider the

“length of isolation sentences . . . in a vacuum.” Hutto,

437 U.S. at 682–85. But the Court was equally clear

that “the length of confinement cannot be ignored

when deciding whether the confinement meets the

constitutional standards.” Id. at 686 (emphasis

added). And yet the Fifth Circuit divined from this

opinion a per se rule that requires exactly the opposite

16

of what Hutto commands—that courts must ignore the

length of time a prisoner has spent in solitary

confinement when considering whether they have

pleaded an Eighth Amendment claim.

Over 120 years ago, this Court observed that even

short periods of solitary confinement cause prisoners

to become “violently insane.” In re Medley, 134 U.S. at

168. And in recent years, as science has advanced,

members of this Court have made clear that solitary

confinement “exact[s] a terrible price,” Davis, 576 U.S.

at 289 (Kennedy, J., concurring), and inflicts an

“immense amount of torture and agony” on prisoners,

Apodaca, 139 S. Ct. at 10 (Sotomayor, J., respecting

denial of certiorari). Indeed, “[t]he dehumanizing

effect of solitary confinement,” and the “numerous

deleterious harms” it causes, can hardly be

understated. Glossip v. Gross, 576 U.S. 863, 926 (2015)

(Breyer, J., dissenting). Against this legal backdrop,

the Fifth Circuit erred in holding that prisoners

subject to solitary confinement can never plead an

Eighth Amendment violation.

2. The Fifth Circuit’s holding similarly disregards

the “usual pattern” of “solitary confinement”—years or

decades in “a windowless cell no larger than a typical

parking spot for 23 hours a day” and “one hour” outside

the cell with “little or no opportunity for conversation

or interaction with anyone,” Davis, 576 U.S. at 286–87

(Kennedy,

J.,

concurring)—that

makes

this

punishment uniquely harmful. It forces lower courts to

look past the significant (and often irreversible) harms

that attend solitary confinement—as established by

decades of scientific research, see supra Part I—and

instead focus solely on whether a prisoner is enduring

conditions unrelated to solitary confinement that are

unsafe or unsanitary. This approach simply ignores

the scientific evidence showing that long-term solitary

17

confinement alone imposes significant physical and

psychological harm not endured by prisoners in the

general population. See Haney, Mental Health Issues,

supra, at 125–27.

The allegations in Mr. Hope’s complaint track the

conditions observed in the scientific literature. Indeed,

taking Mr. Hope’s allegations as true, it is virtually

certain—as a matter of science and logic—that he has

experienced exactly the kind of severe psychological

and physical harms that have been observed in the

literature. And these harms are virtually certain to be

more severe than those experienced by prisoners in

general population—which is precisely the harm the

Eighth Amendment protects against. See Bucklew,

139 S. Ct. at 1124 (noting that a punishment is “cruel”

when it “superadd[s] terror, pain, or disgrace”); accord

Baze v. Rees, 553 U.S. 35, 96 (2008) (plurality op.)

(Thomas, J., concurring in judgment).

Mr. Hope alleged that, when he filed his complaint,

he had been held in solitary confinement for over

twenty-three years (now over twenty-seven years) in a

nine-foot-by-six-foot cell—no larger than a parking

space. Pet. App. 61a-62a. With the space taken up by

his bed, toilet, and sink, Mr. Hope has only a threefoot-by-three-foot space to move around. Id. at 62a. He

thus “sleep[s], eat[s], and defecate[s] . . . in spaces that

are no more than a few feet apart.” Reassessing

Solitary Confinement Hearing, supra, at 75 (prepared

statement of Dr. Craig Haney, Professor of Psychology,

University of California, Santa Cruz).

Unlike general population prisoners who spend “up

to ten hours a day” outside their cells, Haney, The

Psychological Effects of Solitary Confinement, supra,

at 388 n.12, Mr. Hope spends almost half the year—

174 days, on average—in his cell twenty-four hours a

day. Pet. App. 62a. For the remaining 191 days, he

18

spends all but one or two hours each day inside his cell.

Id. Mr. Hope thus suffers “to the fullest extent

possible, complete sensory deprivation and social

isolation,” Hafemeister & George, supra, at 17, which

“can be as clinically distressing as physical torture,”

Metzner & Fellner, Solitary Confinement and Mental

Illness in U.S. Prisons, supra at 104. And this

condition, especially when prolonged (as here),

imposes severe psychology and physical harms. See

Haney, The Psychological Effects of Solitary

Confinement, supra, at 367–68, 370–75 (collecting

studies). More still, before leaving his cell “for any

reason,” Mr. Hope must “submit to a strip search.” Pet.

App. 62a.

Unlike prisoners in general population, Mr. Hope is

“denied almost all human contact.” Id. at 63a. In fact,

the “only human contact he has had with another

human in the last 23 years is with officers and medical

staff.” Id. Mr. Hope is denied “contact visits with

family” and, when visits by family are allowed, they

must talk over a phone through a plexiglass partition.

Id. at 64a. Given these horrid conditions, it is

unsurprising that studies have shown that the distress

and suffering of general population prisoners bears

“absolutely no comparison to the level of suffering and

distress” experienced by prisoners in solitary

confinement. Expert Report of Craig Haney at 81,

Ashker v. Brown, No. 4:09-cv-05796-CW (N.D. Cal.

Mar.

12,

2015)

(available

at

https://ccrjustice.org/sites/default/files/attach/2015/

07/Redacted_Haney%20Expert%20Report.pdf).

On top of all this, unlike general population

prisoners, Mr. Hope is denied the opportunity to

participate in “religious activities, group recreation

and vocational programs.” Pet. App. 64a. And during a

six-year period from February 2012 to February 2018,

19

Mr. Hope alleged that prison officials moved him

between cells 263 times—about once every eight days.

Id. at 68a–69a. This cocktail of confinement and

uncertainty undoubtedly “increase[s] activation of the

brain’s stress systems,” Bennion, supra, at 762, which

kills brain cells and “rewire[s] the brain,” Schaeffer,

“Isolation Devastates the Brain,” supra. Mr. Hope also

alleged that the cells are not disinfected or cleaned

before he is moved, and that “many times these cells

have [had] feces and urine on the walls, floor and

door.” Pet. App. 69a.

Over twenty-seven years of solitary confinement has

caused Mr. Hope to suffer from anxiety, depression,

visual and auditory hallucinations, and thoughts of

suicide. Pet. App. 71a. These are precisely the

psychological injuries researchers have found in

people subjected to solitary confinement. See Haney,

Mental Health Issues, supra, at 130–31, 134–35

(collecting studies); Grassian, Psychiatric Effects,

supra, at 335–36, 349, 370–71. The literature shows

that the onset of these adverse symptoms is almost

immediate. See, e.g., Grassian, Psychiatric Effects,

supra, at 331 (noting measurable harm within days of

solitary confinement). And the longer solitary

confinements persists, the greater the likelihood that

these injuries will be irreversible. Haney, Mental

Health Issues, supra, at 137–41. Thus, there can be no

question that Mr. Hope’s more than two-and-a-half

decades in solitary confinement have permanently

transformed his emotions, personality, and cognition.

Grassian, Psychiatric Effects, supra, at 332–33.

***

The issue here is not whether long-term solitary

confinement is per se cruel and unusual. It is simply

whether Mr. Hope’s decades-long, indefinite solitary

confinement could be unconstitutional, and therefore

20

whether a prisoner can ever plausibly plead an Eighth

Amendment claim on that basis. In the Fifth Circuit’s

view, prisoners in solitary confinement are

categorically

barred

from

pleading

Eighth

Amendment claims challenging the horrors of solitary

confinement—no matter how long they’ve endured it.

That view is legally wrong and factually misguided.

Only this Court can correct this grievous error.

CONCLUSION

For these reasons and those in the petition, the

Court should grant the petition for writ of certiorari.

Respectfully submitted,

BENJAMIN I. FRIEDMAN

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 853-7000

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

CODY L. REAVES

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Amici Curiae

February 18, 2022

* Counsel of Record