Amicus Curiae Brief — Moore v. Texas, 136 S. Ct. 2407 (2016) (No. 15-797)

mt US

JAN 13 2016

Wap ay ‘“y

No. 15-797

IN THE

Supreme Court of the Anited States

BOBBY JAMES MOORE,

Petitioner,

Vv.

TEXAS,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Criminal Appeals of Texas

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

ELIZABETH B. WYDRA*

BRIANNE J. GOROD

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 601

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amicus Curiae

January 19, 2016 * Counsel of Record

WiLSON-EPES PRINTING Co., INC. — (202) 788-0086 - WASHINGTON, D.C. 20002

ED

JAN 1 9 206

SPAR Oe i

TABLE OF CONTENTS

Page

Ge I II oc ncnccsncscscesccsccccsoncccees ii

INTEREST OF AMICUS CURIAE....................... 1

SUMMARY OF ARGUMENT ..............................

ETC SS ER 4

THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT EXCESSIVE PERIODS OF

CONFINEMENT PRIOR TO EXECUTION,

ESPECIALLY WHEN SPENT IN SOLITARY

CONFINEMENT, VIOLATE THE EIGHTH

A. The Eighth Amendment’s Ban On “Cru-

el and Unusual” Punishment Proscribes

Excessive Punishment............................. 4

B. Long-Term Solitary Confinement Vio-

lates the Eighth Amendment’s Prohibi-

tion on Excessive Punishment................. 7

re enuniecssabe 12

ss

TABLE OF AUTHORITIES

Page(s)

Cases

Davis v. Ayala,

kG 3, 8

In re Medley,

a ee 8,9

Miller v. Alabama,

PLE ee 3,7

Roper v. Simmons,

I is 7,11

Solem v. Helm,

I I i rcntiniccmteicidieencinaten 2,5

Weems v. United States,

1 gt 8 SIPS Sr PRES ee 2

Books, Artic! 1 Other Authoriti

4 William Blackstone, Commentaries on

the Laws of England (1769)........................ 5

Am. Civil Liberties Union, A Death Before

— Solitary Confinement on Death

(2013),

Seresiteseinasicenititinidealanamanes

oredying-report.pdf ......................ceeeeeeneeeees 2

TABLE OF AUTHORITIES - cont'd.

Page(s)

Amicus Brief of Professors and Practition-

ers of Psychology and Psychiatry as Ami-

cus Curiae in Support of Respondent,

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

‘No. 04-495), 2005 WL 539137 (2005).......

Atul Gawande, Hellhole, The New Yorker,

Mar. 30, 2009, http://www.newyorker.

com/magazine/2009/03/30/hellhole ............

Christine Rebman, Comment, The Eighth

Amendment and Solitary Confinement:

The Gap in Protection from Psychological

Consequences, 49 DePaul L. Rev. 567

Eri ienaineascsechptssaichatenndashinedmnbhpaieedieniicndeusnaemane

Elizabeth Bennion, Banning the Bing: Why

Extreme Solitary Confinement Is Cruel

and Far Too Usual Punishment, 90 Ind.

Bet NE itch crciniudanmenabatesmmninaiabdiabediaginands

English Bill of Rights 1689: An Act Declar-

ing the Rights and Liberties of the Sub-

ject and Settling the Succession of the

Crown, available at English Bill of

Rights 1689, Yale L. Sch. Library,

http://avalon.law.yale.edu/17th_century/e

ngland.asp (last visited July 24, 2015) .....

John F Cockrell, Solitary Confinement:

The Law Today and the Way Forward, 37

Law & Psychol. Rev. 211 (2013)................

11

10

10

1V

TABLE OF AUTHORITIES - cont'd.

Page(s)

John F. Stinneford, Rethinking Proportion-

ality Under the Cruel and Unusual Pun-

ishment Clause, 97 Va. L. Rev. 899

| OE SAR Aen EE FS Bek ee aD 3, 4, 5, 6, 7

Jules Lobel, Prolonged Solitary Confine-

ment and the Constitution, 11 U. Pa. J.

oo SS ll 8, 10, 11

Magna Carta of 1215, available at English

Translation of Magna Carta, The British

Library, http://www.bl.uk/magna-carta/

articles/magna-carta-english-translation

(last visited July 24, 2015)................. ce 6

Peter Scharff Smith, The Effects of Solitary

Confinement on Prison Inmates: A Brief

History and Review of the Literature, 34

Crime & Just. 441 (2006).......................0.. 10

Reassessing Solitary Confinement: The

Human Rights, Fiscal and Public Safety

Consequences: Hearing Before the Sub-

comm. on the Constitution, Civil Rights

and Human Rights, 112 Cong. 21 (2012).. 9, 11

Stuart Grassian, Psychiatric Effects of Soli-

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

PR I ernincncnticenecicccsrcisnienissmiccesiense 8

Stuart Grassian, Psychopathological Ef-

fects of Solitary Confinement, 140 Am. J.

Psychiatry 1450 (1983) ..................0seeeeeee 9

Vv

TABLE OF AUTHORITIES - cont'd.

Page(s)

Tracy Hresko, Jn the Cellars of the Hollow

Men: Use of Solitary Confinement in U.S.

Prisons and Its Implications Under In-

ternational Laws Against Torture, 18

Pace Int'l L. Rev. 1 (2006).......................... 10

1

INTEREST OF AMICUS CURIAE'

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution's text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and preserve the rights and freedoms it

guarantees. CAC has a strong interest in ensuring

that the constitutional guarantees the Eighth

Amendment protects are respected, in accordance

with constitutional text, history, and values, and ac-

cordingly has an interest in this case.

SUMMARY OF ARGUMENT

The Petition for a Writ of Certiorari in this case

presents an important question about whether, con-

sistent with the protections of the Eighth Amend-

ment, an individual may be forced to endure more

than three decades on death row, almost half of that

time spent living in highly isolated conditions. In

this case, Petitioner Bobby James Moore, who was

sentenced to death at the age of 20, has spent more

than 35 years living on death row, nearly 15 of them

(since April 2001) almost continually in “administra-

' Counsel for all parties received notice at least 10 days prior

to the due date of amicus’s intention to file this brief; all parties

have consented to the filing of this brief. Under Rule 37.6 of the

Rules of this Court, amicus states that no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amicus or its

counsel made a monetary contribution to its preparation or

submission.

2

tive segregation,” which means he spends more than

22 hours per day alone in his prison cell.

As the Petition demonstrates, “[florcing a prison-

er to endure decades on death row raises profound

constitutional concerns.” Pet. 11, 28-33. The Petition

sets out three reasons why Moore’s case “presents an

especially compelling vehicle in which to” address

those constitutional concerns: (1) he has been forced

to spend an exceptionally long period on death row,

(2) his extended confinement on death row is due to

“very substantial constitutional claims”; and (3) so

much of his time on death row has been spent living

in highly isolated conditions. Jd. at 33-34. This brief

in support of the Petition focuses on the third of those

reasons and explains why, as the Petition puts it,

“[t}he constitutional problems with excessively long

periods” on death row “are severely aggravated

where, as here (and as is common in death-penalty

states), a prisoner on death row is kept alone in his

cell for almost the entire day.” Pet. 30; see also Am.

Civil Liberties Union, A Death Before Dying: Solitary

Confinement on Death Row 2 (2013),

https://www.aclu.org/files/assets/deathbeforedying-

report.pdf (“Most death row prisoners in the United

States are locked alone in small cells for 22 to 24

hours a day... .”).

The Eighth Amendment to the U.S. Constitution

provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. As

this Court has long recognized, “(t]he final clause [of

the Amendment] prohibits not only barbaric punish-

ments, but also sentences that are disproportionate to

the crime committed.” Solem v. Helm, 463 U.S. 277,

284 (1983); Weems v. United States, 217 U.S. 349, 367

(1910) (“it is a precept of justice that punishment for

3

crime should be graduated and proportioned to the

offense”).

This prohibition on excessive punishment has its

roots in the English common law. The Magna Carta,

for example, included three chapters that “addressed

the problem of excessive” punishments. John F.

Stinneford, Rethinking Proportionality Under the

Cruel and Unusual Punishment Clause, 97 Va. L.

Rev. 899, 929, 928 (2011). The English Bill of Rights

also embraced this principle of proportionality, using

language undeniably similar to the language included

in the Eighth Amendment: “That excessive bail ought

not to be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” English

Bill of Rights 1689: An Act Declaring the Rights and

Liberties of the Subject and Settling the Succession of

the Crown, available at English Bill of Rights 1689,

Yale L. Sch. Library, http://avalon.law.yale.edu/17th_

century/england.asp (last visited July 24, 2015). The

Framers viewed this principle of proportionality as a

critical part of our common law heritage and thus in-

corporated it into the Eighth Amendment.

Stinneford, supra, at 943-44.

Reflecting this history, this Court has repeatedly

recognized that “[t]he Eighth Amendment’s prohibi-

tion of cruel and unusual punishment ‘guarantees in-

dividuals the right not to be subjected to excessive

sanctions.” Miller v. Alabama, 132 S. Ct. 2455, 2463

(2012) (quoting Roper v. Simmons, 543 U.S. 551, 560

(2005)). Long-term placement in solitary confine-

ment violates this proscription because, as numerous

studies have shown, the psychological damage caused

by long-term solitary confinement is incredibly se-

vere—so severe, in fact, as to be excessive with re-

spect to virtually all prisoners. Cf. Davis v. Ayala,

135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring)

4

(“[t]he human toll wrought by extended terms of iso-

lation long has been understood, and questioned, by

writers and commentators”). The psychological dam-

age caused by such an extended stay in solitary con-

finement makes all the more cruel the execution of an

individual who has been so confined. Thus, the fact

that Moore has spent almost all of the last fifteen

years in solitary confinement provides all the more

reason for this Court to use this case to consider the

important Eighth Amendment questions raised by

extended confinement on death row.

Amicus urges the Court to grant certiorari and

hold that an excessive period of confinement after be-

ing sentenced to death, especially when that time is

spent in solitary confinement, violates the Eighth

Amendment prohibition on cruel and unusual pun-

ishment.

ARGUMENT

THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT EXCESSIVE PERIODS OF

CONFINEMENT PRIOR TO EXECUTION, ES-

PECIALLY WHEN SPENT IN SOLITARY CON-

FINEMENT, VIOLATE THE EIGHTH AMEND-

MENT

A. The Eighth Amendment’s Ban On “Cruel

and Unusual” Punishment Proscribes

Excessive Punishment

The Eighth Amendment _ provides that

“le]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. As this Court

has long recognized, the Eighth Amendment prohib-

its punishments that are not only barbaric, but also

excessive. See, e.g., Stinneford, supra, at 910 (“The

5

Supreme Court has held for the past century that the

Cruel and Unusual Punishments Clause prohibits ex-

cessive punishments as well as barbaric ones.”); see

also Helm, 463 U.S. at 284 (“The final clause [of the

Eighth Amendment] prohibits not only barbaric pun-

ishments, but also sentences that are disproportion-

ate to the crime committed.”

This prohibition on excessive punishment has an-

cient roots. As one scholar has noted, “[t]he idea that

the punishment should fit the crime is as old as

Western civilization.” and it is “a longstanding theme

in the English common law tradition.” Stinneford,

supra, at 927; see id. at 931 (“William Bracton, whose

work On the Laws and Customs of England was the

most comprehensive treatment of English law before

Blackstone, wrote: ‘It is the duty of the judge to im-

pose a sentence no more and no less severe than the

case demands.” (quoting 2 William Bracton, On the

Laws and Customs of England 299 (Samuel E.

Thorne trans., Harvard Univ. Press 1968) (1300))); 4

William Blackstone, Commentaries on the Laws of

England 17 (1769) (“It is . . . absurd and impolitic to

apply the same punishment to crimes of different ma-

lignity.”). Indeed, “[w]hat differentiates the English

(and later the American) legal tradition from that of

other societies is that the principle of proportionality

in sentencing... . was embodied in documents meant

to impose such limits: Magna Carta, the English Bill

of Rights, and the United States Constitution.”

Stinneford, supra, at 928.

The Magna Carta, for example, included three

chapters that “addressed the problem of excessive

amercements,” the demands that the King would im-

pose on individuals who committed a criminal of-

fense. Id. at 929, 928. Chapter 20 provided that

“(flor a trivial offence, a free man shall be fined only

6

in proportion to the degree of his offence, and for a

serious offence correspondingly, but not so heavily as

to deprive him of his livelihood,” Magna Carta of

1215, available at English Translation of Magna Car-

ta, The British Library, http://www.bl.uk/magna-

carta/articles/magna-carta-english-translation (last

visited July 24, 2015), while chapters 21 and 22 pro-

vided that earls, barons, and clergy “shall be fined

only . . . in proportion to the gravity of their offence.”

Id.; see Stinneford, supra, at 930 (explaining that the

Magna Carta prohibitions were “not mere words” be-

cause “[s]ome evidence suggests that in the thir-

teenth and fourteenth centuries, the proscription

against excessive amercements was enforced through

the writ de moderata misericordia”). This “principle

of proportionality also appears to have been consid-

ered applicable to cases involving sentences of im-

prisonment, although this form of punishment was

rare prior to the eighteenth century.” Id. at 931.

This same principle of proportionality was re-

flected in the English Bill of Rights, which imposed a

limitation on the English sovereign in language strik-

ingly similar to that eventually included in the

Eighth Amendment: “That excessive bail ought not to

be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” English Bill of

Rights 1689: An Act Declaring the Rights and Liber-

ties of the Subject and Settling the Succession of the

Crown, available at English Bill of Rights 1689, su-

pra; see Stinneford, supra, at 932-37 (discussing cases

in which the British Parliament assessed the legality

of sentences by considering whether they were exces-

sive to the crime committed).

Thus, when the Framers of the Eighth Amend-

ment incorporated the “cruel and unusual punish-

ments” prohibition in our national charter, they were

7

acting against the backdrop of the long-established

meaning of those terms. See Stinneford, supra, at

939 (noting that “[t]he phrase ‘cruel and unusual’ was

consistently used as a synonym for ‘excessive’ in two

major areas of law outside of criminal punishment”);

see also id. at 939-42. And they incorporated this

prohibition on “cruel and unusual punishments,” in-

cluding those that are excessive in relation to the

crime committed, because they viewed that prohibi-

tion as a fundamental part of their common law her-

itage and the Bill of Rights as their means of ensur-

ing that the federal government would respect that

common law heritage. Id. at 943-44.

Reflecting this history, this Court has repeatedly

recognized that “[t]he Eighth Amendment’s prohibi-

tion of cruel and unusual punishment ‘guarantees in-

dividuals the right not to be subjected to excessive

sanctions.” Miller, 132 S. Ct. at 2463 (quoting Roper,

543 U.S. at 560). As this Court has explained, this

right “flows from the basic “precept of justice that

punishment for crime should be graduated and pro-

portioned to [the] offense.”” Roper, 543 U.S. at 560

(quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)).

Moreover, by extending this protection even to “those

convicted of heinous crimes, the Eighth Amendment

reaffirms the duty of the government to respect the

dignity of all persons.” Jd. As the next Section ex-

plains, long-term placement in solitary confinement

violates that fundamental constitutional require-

ment.

B. Long-Term Solitary Confinement Vio-

lates the Eighth Amendment’s Prohibi-

tion on Excessive Punishment

Long-term placement in solitary confinement vio-

lates the Eighth Amendment’s proscription on “cruel

and unusual punishment” because long-term place-

8

ment in such restrictive and dehumanizing conditions

is likely excessive with respect to virtually all in-

mates, even those who commit capital offenses.2. As

Justice Kennedy noted just last Term, “[t]he human

toll wrought by extended terms of isolation long has

been understood, and questioned, by writers and

commentators.” Ayala, 135 S. Ct. at 2209 (Kennedy,

J., concurring); see id. at 2210 (“research still con-

firms what this Court suggested over a century ago:

Years on end of near-total isolation exact a terrible

price”); see also In re Medley, 134 U.S. 160, 170 (1890)

(solitary confinement carries “a further terror and

peculiar mark of infamy”).

In fact, numerous studies have documented the

severe psychological strain that solitary confinement

imposes. As one expert in the field has explained,

“[t]he restriction of environmental stimulation and

social isolation associated with confinement in soli-

tary are strikingly toxic to mental functioning,” pro-

ducing “florid delirium—a confusional psychosis” in

some inmates. Stuart Grassian, Psychiatric Effects of

Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325,

2 Although this brief argues that long-term solitary confine-

ment violates the Eighth Amendment because it is likely exces-

sive with respect to virtually all inmates, amicus notes that such

long-term solitary confinement might also constitute barbarous

treatment and be prohibited by the Eighth Amendment for that

reason, as well. See, e.g., John F. Cockrell, Solitary Confine-

ment: The Law Today and the Way Forward, 37 Law & Psychol.

Rev. 211, 213 (2013) (“Given the symptoms associated with soli-

tary confinement, the word ‘torture’ may not be an inappropriate

description of the conditions imposed.”); Jules Lobel, Prolonged

Solitary Confinement and the Constitution, 11 U. Pa. J. Const.

L. 115, 122 “3008) (“International law also supports the proposi-

tion that very lengthy, virtually permanent conditions of harsh

solitary confinement constitute either torture or cruel, inhuman,

and degrading treatment.”).

9

354 (2006); see Stuart Grassian, Psychopathological

Effects of Solitary Confinement, 140 Am. J. Psychia-

try 1450, 1452 (1983) (describing how inmates often

hallucinated, heard voices, and experienced “short-

ness of breath, panic, tremulousness, and dread of

impending death”). Another has noted that “for some

prisoners . . . solitary confinement precipitates a de-

scent into madness.” Reassessing Solitary Confine-

ment: The Human Rights, Fiscal and Public Safety

Consequences: Hearing Before the Subcomm. on the

Constitution, Civil Rights and Human Rights, 112

Cong. 21 (2012) [hereinafter Reassessing Solitary

Confinement Hearing].

Indeed, one study found that the conditions of sol-

itary confinement were so severe and difficult that

almost every prisoner living under such conditions

attempted to commit suicide. See Amicus Brief of

Professors and Practitioners of Psychology and Psy-

chiatry as Amicus Curiae in Support of Respondent,

Wilkinson v. Austin, 545 U.S. 209 (2005), (No. 04-

495), 2005 WL 539137, at *16 (2005) [hereinafter

Psychology Amicus Brief] (citing Thomas B. Benja-

min & Kenneth Lux, Constitutional and Psychologi-

cal Implications of the Use of Solitary Confinement:

Experience at the Maine Prison, 9 Clearinghouse Rev.

83-90 (1975)); see generally In re Medley, 134 U.S. at

168 (noting that after a short period in solitary con-

finement, “[a] considerable number of the prisoners

fell . . . into a semi-fatuous condition . and others

became violently insane; others still, committed sui-

cide”). These accounts are not anomalous; as three

psychiatrists put it, “[t]he overall consistency of these

findings—the same or similar conclusions reached by

different researchers examining different facilities, in

different parts of the world, in different decades, us-

ing different research methods—is striking.” Psy-

10

chology Amicus Brief, supra, at *22; see Lobel, supra

note 2, at 118 (“[n]Jo study of the effects of solitary . . .

that lasted longer than 60 days failed to find evidence

of negative psychological effects” (quoting Psychology

Amicus Brief, supra, at *4)).

It bears emphasis that “negative (sometimes se-

vere) health effects can occur after only a few days of

solitary confinement,” and “(t]he health risk rises for

each additional day in solitary confinement.” Peter

Scharff Smith, The Effects of Solitary Confinement on

Prison Inmates: A Brief History and Review of the

Literature, 34 Crime & Just. 441, 488-97 (2006); see

also Tracy Hresko, Jn the Cellars of the Hollow Men:

Use of Solitary Confinement in U.S. Prisons and Its

Implications Under International Laws Against Tor-

ture, 18 Pace Int'l L. Rev. 1, 11-12 (2006) (“[T]he

longer an individual experiences conditions of isola-

tion, the likelier they are to develop significant men-

tal illness.”); Christine Rebman, Comment, The

Eighth Amendment and Solitary Confinement: The

Gap in Protection from Psychological Consequences,

49 DePaul L. Rev. 567, 584 (1999) (“the longer the pe-

riod of time an inmate remains in solitary confine-

ment, the greater the risk that the inmate will need

to seek psychiatric hospitalization”). It is no wonder

then that the psychological consequences for those

who are held in solitary confinement for years and

years can be profoundly negative.

Nor is it surprising that long-term solitary con-

finement would produce such negative psychological

effects. After all, solitary confinement denies prison-

ers the basic human need of social interaction. With-

out such interaction, humans lose the ability to “es-

tablish and sustain a sense of identity and to main-

tain a grasp on reality.” Elizabeth Bennion, Banning

the Bing: Why Extreme Solitary Confinement Is Cruel

11

and Far Too Usual Punishment, 90 Ind. L.J. 741, 776

(2015). One individual who had been in isolation for

almost twenty-five years described his confinement

as a “slow constant peeling of the skin, stripping of

the flesh.” Lobel, supra, at 116. Senator John

McCain, who spent more than two years in isolation

as a POW in North Vietnam, described how solitary

confinement “crushes your spirit and weakens your

resistance more effectively than any other form of

mistreatment.” Atul Gawande, Hellhole, The New

Yorker, Mar. 30, 2009, http://www.newyorker.com/

magazine/2009/03/30/hellhole. And other statements

by those who have spent time in solitary confinement

are consistent with these accounts. See, e.g., Reas-

sessing Solitary Confinement Hearing, supra, at 321

(“I felt neglected and completely invisible. | felt like I

didn’t mean anything.”); id. at 326 (“As the time went

by and I remained in the gray box I degenerated even

worse. I lost the will to live. I lost hope, even though

I was scheduled to be released in a couple years. De-

pression overwhelmed me.”); id. at 339 (“There’s no

describing the day to day assault on your body and

your mind and the feelings of hopelessness and des-

pair.”).

In sum, the accounts of individuals who have

spent extended periods of time in solitary confine-

ment confirm what countless studies make clear: soli-

tary confinement, especially long-term solitary con-

finement, is so inhumane and dehumanizing as to be

excessive in relation to virtually any individual. It

denies these individuals the “dignity” that the Eighth

Amendment guarantees all individuals, even those

who have committed heinous crimes. Roper, 543 U.S.

at 560.

This Court should thus grant certiorari and hold

that an excessive period of confinement after being

12

sentenced to death, especially when much of that

time is spent in solitary confinement, violates the

Eighth Amendment prohibition on cruel and unusual

punishment.

CONCLUSION

For the foregoing reasons, amicus urges the

Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

ELIZABETH B. WYDRA*

BRIANNE J. GOROD

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amicus Curiae

January19, 2016 * Counsel of Record