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

Sut cory wer tis

f )

No. 15-797 JAN 19 2016

In The CEHICE OF THF CLERK

Supreme Court of the Anited States

.

BOBBY JAMES MOORE,

Petitioner,

TEXAS,

Respondent.

+

ON PETITION FOR WRIT OF CERTIORARI TO

THE CouRT OF CRIMINAL APPEALS OF TEXAS

+

BRIEF AMICI CURIAE OF THE NATIONAL RELIGIOUS

CAMPAIGN AGAINST TORTURE, REPRIEVE US, AND THE

CENTER FOR CONSTITUTIONAL RIGHTS IN SUPPORT OF

PETITIONER

.

Eric L. Lewis

Counsel of Record

Jeffrey D. Robinson

Esther Yong

LEWIS BAACH PLLC

1899 Pennsylvania Avenue, NW, Suite 600

Washington, DC 20006

(202) 833-8900

eric.lewis@lewisbaach.com

Counsel for Amici Curiae Dated: January 19, 2016

THRE LEX GROUP @ 1895 K Street, N.W. @ Suite 103 @ Washington, D.C 20006

(202) 955-0001 @ (800) 856-4419 @ Fax: (202) 955-0022 @ www thelexgroup.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............0c-cccecseceeeeseeeeees ii

STATEMENT OF INTERESTS

FF er ers cece ssccmniitinisenncserenectecsnisemnenmavesie 1

SUMMARY OF ARGUMENT ..............-..22:.ccccccceeeeeees 4

IS ttacitcteiminttinnstrmnnianninmnmuncinnen 6

I. TDCJ Death Row Plan _ Imposes

Prolonged, Indefinite Solitary

Confinement on Petitioner and Others

Sentenced to Death with No Security

TR IEE PERE EM SEARS Tene Oe 6

IT. Prolonged, Indefinite Solitary

Confinement, like Petitioner's Pursuant

to the TDCJ Death Row Plan, Has

Profound, Devastating Impacts on the

Mental and Physical Health of Prisoners....... 9

Ill. International Human Rights

Organizations and Courts Have Found

that Prolonged, Indefinite Solitary

Confinement, like Petitioner's Pursuant

to the TDCJ Death Row Plan,

ST I sacctrrvrestcvnicipusninmbacannsiaciness 17

CID nse cctrcscsesstscdscestivensnahninstenduiaiiusnnseinimnmansineees 22

ll

TABLE OF AUTHORITIES

Page(s)

UNITED STATES

SUPREME COURT CASES

Davis v. Ayala,

eo: ee Ll eR 10

In re Medley,

2 FEM te cae a see ae Oe 5, 10

Wilkinson v. Austin,

LCS SES tor ssonveen rd 4

INTERNATIONAL CASES

Babar Ahmad and Others v. United Kingdom,

Eur. Ct. H.R. App. Nos. 24027/07 et al.,

52 LL.M. 443, 2013 WL 5785362 (Apr.

RRA EE ee SBE IR Se RL 18

Bamaca Velasquez v. Guatemala,

Merits, Judgment, Inter-Am. Ct. H.R.

(ser. C) No. 70 (Nov. 25, 2000)............00.0000.... 18

lorgov v. Bulgaria,

Eur. Ct. H.R. App. No. 40653/98

RE, Seer ME Gichcnnecissteiniingddotieticcecabuibinddsicaneinan 20

Kennedy v. Trinidad and Tobago,

Communication No. 845/1998, U.N. Doc.

CCPR/C/74/D/845/1998 (Mar. 26, 2002)........ 19

il

Maritza Urrutia v. Guatemala,

Merits, Reparations, and Costs,

Judgment, Inter-Am. Ct. H.R. (ser. C)

ee I, Ge I icra ess 18

Mathew v. Netherlands,

2005-1X Eur. Ct. H.R. 57 (Sept. 29, 2005)..... 20

Mukong v. Cameroon,

Communication No. 458/1991, U.N. Doc.

CCPR/C/51/D/458/1991 (Aug. 10, 1994)........ 19

Polay Campos v. Peru,

Communication No. 577/1994, U.N. Doc.

CCPR/C/61/D/577/1994 (Nov 5, 1997).......... 20

Sobhraj v. Nepal,

Communication No. 1870/2009, U.N.

Doc. CCPR/C/99/D/1870/2009 (July 27,

NEE cerisisaiodausibssiiemichentomindindntndatamninnliniachesons 19

Veldsquez- Rodriguez v. Honduras,

Merits, Judgment, Inter-Am. Ct. H.R.

(ser. C) No. 4 (July 21, 1988)......................... 21

Xavier Evans v. Trinidad and Tobago,

Communication No. 908/2000, U.N. Doc.

CCPR/C/77/D/908/2000 (Mar. 21, 2003)........ 19

Yong-Joo Kang,

Communication No. 878/1999, U.N. Doc.

CCPR/C/78/D/878/1999 (July 15, 2003) ........ 19

1V

CONSTITUTIONAL PROVISION

of @. OE , Ener aoe 4, 9, 21, 22

RULES

SN, i TIN Uns Goricdicesins Aaincian bdieiebesaiandcehacehiemadamebenbes

is Matas ls Mails acivcsniutibewiantbnaddbbviuadhialinanctelnisésseeebeowndis

LEGISLATIVE MATERIAL

Solitary Confinement on Texas Death Row:

Submission from American Civil Liberties

Union of Texas, Texas Civil Rights Project, and

Texas Defender Service, Reassessing Solitary

Confinement II: The Human Rights, Fiscal, and

Public Safety Consequences: Hearing Before S.

Judiciary Subcomm. on Constitution, Civil

Rights & Human Rights, 113th Cong. (2014) ..........

TREATIES

International Covenant for Civil and Political

Rights, adopted Dec. 19, 1966, S. Exec. Doc. E,

95-2 (1978), 999 U.N.T.S. 171 (entered into

a

1

‘s

INTERNATIONAL AUTHORITIES

Sharon Shalev, Chapter 5: Solitary Confinement

as a Prison Health Issue, in PRISONS AND

HEALTH 27 (World Health Organization, 2014).....

U.N. Rep. of the Human Rights Comm., General

Comment No. 20 (44) (art. 7), U.N. Doc.

A/47/40, annex VI, sec. A, at 193, GAOR, 47th

ig ha FOE GP CII dirccpnsnciednidchantesscnsciocknisein

U.N. Special Rapporteur of the Human Rights

Council, Interim Rep. on torture and other

cruel, inhuman or degrading treatment or

punishment, U.N. Doc. A/66/268 (Aug. 5, 2011)....

U.N. Special Rapporteur of the Human Rights

Council, Interim Rep. on torture and other

cruel, inhuman or degrading treatment or

punishment, Annex, 25 U.N. Doc. A/63/175

RE Se IIE eri cndatcnieractscuanadtigutandplenasaite LER IE AD

SCIENTIFIC AUTHORITIES

Mark D. Cunningham & Mark P Vigen, Death

Row Inmate Characteristics, Adjustment, and

Confinement: A_ Critical Review of the

Literature, 20 Behav. Sci. L. 191 (2002) ................

Mark D. Cunningham et al., Js Death Row

Obsolete? A Decade of Mainstreaming Death-

Sentenced Inmates in Missouri, 23 Behav. Sci.

et IE sis scnasecarcesderctnmstdecnisiaioverniaebabiianinianniie

eee

iat

Paul Gendreau et al., Changes in EEG Alpha

Frequency and Evoked Response Latency

During Solitary Confinement, 79 J. Abnormal

es Ce isciriciileleciesistinsincnisersincniieaneaiiieamaasininas 13

Stuart Grassian, Psychiatric Effects of Solitary

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

UIE dctpociedkastninsiosiinpcicsitinininiesndatiiniisinndbiennbisiinanntetapanies 11,13

Craig Haney. Mental Health Issues in Long-Term

Solitary and “Supermax” Confinement, 49(1)

Crime and Delinquency 124 (2003) ......................... 11

Istanbul Statement on the Use and Effects of

Solitary Confinement, 18 Torture, no. 1, 2008 ........ 18

Jeffrey L. Metzner & Jamie Fellner, Solitary

Confinement and Mental Iliness in U.S.

Prisons: A Challenge for Medical Ethics, 38 J.

Am. Acad. Psychiatry and L. 104 (2010)........... 11, 16

Sharon Shalev, A Sourcebook on _ Solitary

Confinement, Section 2.3, The negative health

effects of solitary confinement: reported

symptoms (Mannheim Centre for Criminology,

London School of Economics and Political

IR I vhscrisccsteincsncnsusisbqneientcapneddmbeddiasdens 12, 13

Elizabeth A. Wilson, Beyond the Rack: Post-

Enlightenment Torture, 39 New Eng. J. on

Crim. & Civ. Confinement 41 (2013)....................... 13

ADDITIONAL AUTHORITIES

Atul Gawande, Hellhole: Is Long-Term Solitary

Confinement Torture?, The New Yorker, Mar.

KR RS Si EE” SPN eR Reet op te Se Seo a 13, 14, 16

Alex Hannaford, Letters from Death Row: Alone

on the Inside, Tex. Observer, Mar. 16, 2015.............. 7

David Mann, Solitary Men, Tex. Observer, Nov.

i 7,8

John McCain, Faith of My Fathers (2000) .................. 14

Scott Parks, Report on 1998 escape led to shake-

up at prison; Response may offer clues to what's

in store in Connally case, Dallas Morning

ee Ge, ee ein ieiadlinmeanbabibintiiainasion 8

Texas Department of Criminal Justice, Death

EE SS Me MF Sia a RE Se le A Se A 6, 7,8

Christopher Zoukis, Texas Prison Guard Union

Urges Death Row Reforms, Prison Legal News,

is BO cienasiveicisintiiasancebadhjunbcondanabicoliadeseudiebankediaceienaecs 7

STATEMENT OF INTERESTS OF

AMICI CURIAE

Amici! are United States based non-profits

dedicate’ to securing human rights for

underrepresented and marginalized people.

The National Religious Campaign Against

Torture (“NRCAT”’) was launched following the

release of the Abu Ghraib photos, during a

conference of diverse American faith leaders that

had been convened to examine how religious

communities could respond to the use of torture.

NRCAT’s mission is to mobilize people of faith to

end torture in U.S. policy, practice and culture.

NRCAT has over 320 religious organizations as

members. These include evangelical Christians,

Roman Catholics, Orthodox Christians, mainline

Protestants, Muslims, Jews, Sikhs, Hindus, Baha'is,

and Buddhists. Member organizations include

national denominational and faith group bodies,

regional entities such as state ecumenical agencies,

and local religious organizations and congregations.

One of the four areas of NRCAT’s work is to

end the use of torture in U.S. prisons and detention

facilities, in particular the use of prolonged solitary

! Pursuant to Supreme Court Rule 37.2, counsel for Amici

Curiae certifies that counsel of record for all parties received

timely notice of the intent to file this brief, and the parties have

each provided their consent in writing to the filing of this brief.

Pursuant to Rule 37.6, counsel for Amici Curiae certifies that

no counsel for any party authored this brief in whole or in part

and that no person or entity other than Amici Curiae or their

counsel made a monetary contribution intended to fund the

briefs preparation or submission.

confinement. NRCAT is engaged in supporting

religious organizations and communities of faith

nationwide to participate in campaigns to stop the

torture of solitary confinement, partnering with

survivors of solitary confinement, their loved ones,

and representatives from the international human

rights, legal, architectural, medical and mental

health fields. Among other actions, NRCAT, with its

partner the Maine Council of Churches, successful.y

advocated in Maine for the Department of

Corrections to reduce its population of prisoners held

in prolonged solitary confinement. Maine has now

reduced its solitary confinement population by more

than seventy percent.

Reprieve US is a non-profit organization of

lawyers and investigators advocating on behalf of

individuals facing execution, detention without trial

and extra-judicial killing in the United States and

around the world. It helps people who are suffering

human rights abuses at the hands of governments.

Reprieve US focuses on cases that help reshape the

U.S. policy debate in accordance with international

human rights norms and the affirmation of every

person’s dignity and legal rights.

Reprieve US works to end the death

penalty in the United States and worldwide. It

provides direct legal assistance to people facing

the death penalty or languishing on death row.

Reprieve US is currently working with more than

seventy people facing execution in_ eleven

countries, including the United States, Pakistan, the

Democratic Republic of Congo, Egypt, Ethiopia,

Indonesia, and UAE. Its caseworkers work with the

local lawyers of its clients, investigate cases, draft

legal documents, and provide training on capital

defense issues and best practices. Reprieve US also

investigates and challenges the use of torture around

the world.

Reprieve US works with its sister

organization Reprieve UK on a variety of projects.

Reprieve UK has litigated death penalty cases for

more than two decades around the world and in

numerous states in the United States, including in

the State of Texas.

The Center for Constitutional Rights (“CCR”)

is a national non-profit legal, educational, and

advocacy organization dedicated to advancing and

protecting the rights guaranteed by the United

States Constitution and the Universal Declaration of

Human Rights. Among other areas, CCR has

focused on the human rights implications of the

United States’ use of the death penalty and has

recently published two reports regarding conditions

on death row, including Discrimination, Torture, and

Execution: A Human Rights Analysis of the Death

Penalty in California and Louisiana, October 2013

(available at http://ccrjustice.org/sites/default/files/

assets/files/2013-Death-Penalty-Report.pdf) and The

United States Tortures Before It Kills: An

Examination of the Death Row Experience from a

Human Rights Perspective, October 2011 (available

at http://ccrjustice.org/sites/default/files/assets/files/

deathrow_torture_postition_paper.pdf).

It is CCR’s position that prolonged solitary

confinement amounts to torture, prohibited by

international law and by the Eighth Amendment

to the United States Constitution. CCR has

successfully litigated two challenges to solitary

confinement, including Wilkinson v. Austin, 545 U.S.

209 (2005) (Ohio prisoners have a liberty interest in

avoiding placement in Supermax prison), and Ashker

v. Governor of California, No. C09-5796 (N.D. Ca.)

(Eighth Amendment class action challenge to

prolonged solitary confinement resulting in

landmark settlement substantially _ limiting

California’s use of such confinement).

SUMMARY OF ARGUMENT

Petitioner Bobby James Moore was initially

sentenced to death by the State of Texas in July

1980 when he was twenty years old. He is now fifty-

six years old. Except for the period between the

overturning of his initial death sentence by the Fifth

Circuit Court of Appeals in October 1999, Moore v.

Johnson, 194 F.3d 586 (5th Cir. 1999), and his

resentencing to death in February 2001, Mr. Moore

has lived that entire time under the threat of

execution.

Twice during those thirty-five years the State

signed warrants setting his execution date. Once, a

stay was issued less than twenty-four hours before

he was scheduled to die. Moore v. McCotter, No. H-

86-835, Order Granting Stay of Execution (S.D. Tex.

Feb. 25, 1986). On the other occasion, his execution

was stayed five days before the scheduled date.

Moore v. Collins, No. H-93-3217, Order Granting

Stay of Execution (S.D. Tex. Oct. 21, 1993).

Mr. Moore has spent most of the almost

fifteen years since he was resentenced to death

(beginning in April 2001) held in “administrative

segregation” in Texas's Polunsky Unit pursuant to

the Texas Department of Criminal Justice's

(“TDCJ”) Death Row Plan.” As a result, he spends

twenty-two and one half hours per day, every day,

alone in a cell, and, among other deprivations, is

denied contact visits. He is not being held in

administrative segregation because of his conduct or

violation of rules while incarcerated. He is being

held in administrative segregation because al] death-

sentenced male inmates in Texas are so held.

The potential harms and _é adverse

consequences of holding individuals in solitary

confinement, such as the administrative segregation

required by TDCJ’s Death Row Plan, have been

acknowledged by this Court, see, e.g., In re Medley,

134 U.S. 160, 167-71 (1890), as well as penological

and medical experts, international organizations and

courts. It is tantamount to torture to hold humans

in the conditions of isolation under which Mr. Moore,

and other men sentenced to death in Texas, are held

for an indefinite period where the only prospect for

release is execution. Such treatment is precisely

what the Eighth Amendment's prohibition on cruel

and unusual punishment is meant to preclude.

2 During sixty-nine days of this period, Mr. Moore was in a

county jail, not death row, for a court-ordered psychological

exam. App. 46a. He also was held in a county jail for several

weeks in connection with his January 2014 evidentiary

hearing.

ARGUMENT

1. TDCJ Death Row (Plan _ Imposes

Prolonged, Indefinite Solitary

Confinement on Petitioner and Others

Sentenced to Death with No Security

Justification.

The TDCJ Death Row Plan defines the

conditions under which Petitioner, and all others

sentenced to death in Texas, are confined.*

Currently, and since 1999, all death-sentenced male

offenders are assigned to one of three levels of Death

Row Segregation. Offenders assigned to Death Row

Segregation are kept in what amounts to solitary

confinement. They are locked in their solid steel

doored, sixty square foot, individual cells twenty-two

and one half hours per day. Their meals are

provided in their cells. They are not permitted to

work, go to the law library, participate in group

religious activities, or associate with other inmates

in any way At best, they are permitted seven to

twelve hours of out-of-cell physical recreation per

week.* That recreation occurs alone “in a dog-run

% The TDCJ Death Row Plan is available online

(http://tifa.org/wp-content/uploads/20 1 4/02/Administrative-

Segregation-Death-Row-Plan-1.pdf).

‘ Jd. at 17-18. Level I offenders are allowed out-of-cell

recreation in accordance with one of the three schedules:

(a) one hour per day, seven days a week; (b) two hours per day,

five days per week; or (c) three hours per day, four days per

week. Level II offenders are permitted one hour per day, four

days per week of out-of-cell recreation. And Level Ill offenders

are permitted one hour per day, three days per week of out-of-

cell recreation.

type enclosure.”® They are not even permitted to

watch television.®

The TDCJ Death Row Plan does contain

procedures for evaluating death-sentenced offenders

to determine if they are “Work Capable.”"? Work

Capable offenders are eligible to hold prison jobs,

engage in recreation with up to three other offenders

at once, eat meals out of their cells, with others,

walk escorted but unrestrained within the building

and unescorted within the housing unit to showers

and recreation, and participate in group religious

5 Christopher Zoukis, Texas Prison Guard Union Urges Death

Row Reforms, Prison Legal News, Oct. 2015, at 46, available at

https://www.prisonlegalnews.org/media/issues/10pln15.correcte

d.pdf. See also Alex Hannaford, Letters from Death Row: Alone

on the Inside, Tex. Observer, Mar. 16, 2015, available at

http://www .texasobserver.org/letters-from-death-row-alone-on-

the-inside/ (“The exercise yard for death row inmates at

Polunsky is not much of a yard at all. Surrounded on all sides

by concrete walls, the only view of the sky in the yard is

through a grill in the roof.”).

6 In addition to the TDCJ Death Row Plan itself, descriptions of

the conditions for death-sentenced male offenders in Texas may

be found in Solitary Confinement on Texas Death Row:

Submission from American Civil Liberties Union of Texas,

Texas Civil Rights Project, and Texas Defender Service,

Reassessing Solitary Confinement II: The Human Rights,

Fiscal, and Public Safety Consequences: Hearing Before S.

Judiciary Subcomm. on Constitution, Civil Rights &

Human Rights, 113th Cong. (2014), available at

http://solitarywatch.com/wp-content/uploads/20 1 4/02/TX-Death

-Row-ACLU-of-TX_-TCRP_-TDS.pdf, and David Mann, Solitary

Men, Tex. Observer, Nov. 10, 2010, at 6, available at

http://archives.texasobserver.org/issue/2010/11/124#page=1.

7 TDCJ Death Row Plan, supra note 3, at 4-6.

services.* Prior to 1999 death row inmates could

work morning and afternoon shifts at the prison

garment factory and had several hours a day of

group recreation. They could play board games with

each other, watch television, receive education

programs, and were alone in their cells only at night.

They even occasionally were permitted “contact

visits,” allowing them in the same room with visitors

without a glass partition separating them.®

However, even though it is the stated policy of

TDCJ “to assign offenders to a meaningful prison job

when available,” the Work Capable program for male

offenders has been suspended since 1999.'°

Accordingly, by virtue of his sentence and gender,

and without regard to his conduct or actual risk, Mr.

Moore has been condemned to spend an indefinite

period, now approaching fifteen years, in solitary

confinement.

8 Jd. at 14-15.

9Mann, supra note 6, at 8.

1%” The Work Capable program was suspended, and all male

death-sentenced offenders consigned to segregation, following

an attempted escape by seven death-sentenced inmates, one of

whom made it out of the facility but was shot during the escape

and found dead one week later. Jd.; Scott Parks, Report on

1998 escape led to shake-up at prison; Response may offer clues

to what's in store in Connally case, Dallas Morning News, Jan.

12, 2001, at 16A.

There is no valid justification for subjecting

every male offender under sentence of death to

solitary confinement without regard to the actual

risk they pose in the prison setting. See Mark D.

Cunningham & Mark P Vigen, Death Row Inmate

Characteristics, Adjustment, and Confinement: A

Critical Review of the Literature, 20 Behav. Sci. L.

191, 203 (2002) (Death-sentenced inmates “typically

do not perpetrate violence in prison.”); Mark D.

Cunningham et al., Js Death Row Obsolete? A Decade

of Mainstreaming Death-Sentenced Inmates in

Missouri, 23 Behav. Sci. L. 307, 316-19 (2005)

(Death-sentenced offenders are not more violent

than other groups of inmates and are actually less

violent than some subsets of the prison population).

Indefinite solitary confinement raises an Eighth

Amendment issue even when motivated by

significant security concerns; subjecting individuals

to the harsh additional punishment of indefinite

solitary confinement where there is no security or

other interest being served, raises substantial

Eighth Amendment concerns that should be

addressed by this Court.

Il. Prolonged, Indefinite Solitary

Confinement, like Petitioner’s Pursuant

to the TDCJ Death Row Plan, Has

Profound, Devastating Impacts on the

Mental and Physical Health of Prisoners.

The historical understanding of the adverse

impact of solitary confinement, particularly

prolonged, indefinite solitary confinement, has been

reinforced by modern medical and penological study

as well as the revealed experience of those who have

10

been subjected to it. Experts and victims alike have

concluded that isolation can be as, or even more,

destructive to human beings than physical torture.

One hundred and twenty-five years ago, this

Court in In re Medley, 134 U.S. 160, 167-71 (1890),

observed that the deleterious effects of solitary

confinement on prisoners were well understood. In

ruling that a new statutory requirement that the

condemned prisoner be held in solitary confinement

was sufficient additional punishment triggering

application of the Ex Post Facto Clause, the Court

observed that “serious objections” had arisen to

maintaining prisoners in total isolation because “[a]

considerable number of the prisoners fell, after even

a short confinement, into a semi-fatuous condition,

from which it was next to impossible to arouse them,

and others became violently insane; others, still,

committed suicide; while those who stood the ordeal

better were not generally reformed, and in most

cases did not recover sufficient mental activity to be

of any subsequent service to the community.” /d. at

168.

In his recent concurrence in Davis v. Ayala,

__U.S. __, 185 S. Ct. 2187, 2208-10 (2015), Justice

Kennedy noted that understanding of the impact of

isolation on prisoners went back at least to the

eighteenth century. A British prison reformer of the

era wrote that “criminals who had affected an air of

boldness during their trial, and appeared quite

unconcerned at the pronouncing sentence upon

them, were struck with horror, and shed tears when

brought to these darksome solitary abodes.” Jd. at

2209. The devastating impact of solitary

11

confinement did not require the methodologies of

modern cognitive science. It was recognized early on

as destructive of human dignity and personality.

Modern medical researchers have reinforced

that insight by identifying a variety of adverse

consequences to individuals subject to prolonged

isolation in prison and other situations. Among the

commonly found symptoms are hyper-responsivity to

external stimuli; perceptual distortions, illusions,

and hallucinations; panic attacks; difficulties with

thinking, concentration, and memory; intrusive

obsessional thoughts of primitive aggressive

fantasies; overt paranoia; and problems with

impulse control.'' The long-term consequences of

prolonged isolation include persistent symptoms of

post-traumatic stress, such as flashbacks, chronic

hypervigilance, and a _ pervasive sense of

hopelessness, as well as _ lasting personality

changes.'? “Suicides occur disproportionately more

often in segregation units than elsewhere in

prison.” !%

'! Stuart Grassian, Psychiatric Effects of Solitary Confinement,

22 Wash. U. J. L. & Pol'y 325, 333-36 (2006). See also Craig

Haney, Mental Health Issues in Long-Term Solitary and

“Supermax” Confinement, 49(1) Crime and Delinquency 124

(2003) (placement in isolation has been associated with feelings

of hopelessness, irritability, aggression, suicidal ideation and a

sense of impending emotional breakdown).

12 Grassian, supra note 11, at 353.

‘3 Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement

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

Ethics, 38 J. Am. Acad. Psychiatry and L. 104, 105 (2010)

(citing Raymond F. Patterson & Kerry Hughes, Review of

completed suicides in the California Department of Corrections

12

Summarizing the research in the field, A

Sourcebook on Solitary Confinement found that the

effects on health of solitary confinement include

physiological signs and symptoms, such as: gastro-

intestinal, cardiovascular and _ genito-urinary

problems; diaphoresis (sudden excessive sweating);

insomnia; deterioration of eyesight; lethargy,

weakness, profound fatigue; feeling cold; heart

palpitations; migraine headaches; back and other

joint pains; poor appetite, weight loss, and diarrhea;

and tremulousness.'4 An even larger array of

psychological symptoms were found, including:

anxiety, ranging from feelings of tension to full-

blown panic attacks; depression, varying from low

mood to clinical depression; anger, ranging from

irritability to rage; cognitive disturbances, ranging

from lack of concentration to confused states;

perceptual distortions, ranging from hypersensitivity

to hallucinations; paranoia and psychosis, ranging

and Rehabilitation, 1999 to 2004, 59 Psychiatr. Serv. 676, 677-

81 (2008); Thomas W White et al., A comprehensive analysis of

suicide in federal prisons: a fifteen-year review, 9 J. Correct

Health Care 321-43 (2002); Lindsay M. Hayes, National Center

on Institutions and Alternatives, Prison Suicide: an Overview

and Guide to Prevention (1995), available at

http://www _nicic.gov/library/files/012475.pdf).

‘4 Sharon Shalev, A Sourcebook on Solitary Confinement,

Section 2.3, The negative health effects of solitary confinement:

reported symptoms (Mannheim Centre for Criminology,

London School of Economics and Political Science, 2008); see

also Sharon Shalev, Chapter 5: Solitary Confinement as a

Prison Health Issue, PRISONS AND HEALTH 27 (World Health

Organization, 2014).

13

from obsessional thoughts to full-blown psychosis;

and self-harm and suicide.!5

The impact of isolation can be seen not only in

observed behaviors and reported symptoms, but also

in clinical observations of prisoners’ brains. “[E]ven

a few days of solitary confinement will predictably

shift the electroencephalogram (EEG) pattern

toward an abnormal pattern characteristic of stupor

and delirium.” !®

Studies of prisoners of war held in solitary

confinement reveal similar consequences of the

practice. A 1992 study of detainees in the former

Yugoslavia found that the most severe brain

abnormalities were in prisoners who either

sustained head traumas sufficient to render them

unconscious or who had _ ~been placed _ in

solitary confinement.'? “Without sustained social

15 Jd.

16 Grassian, supra note 11, at 331. See also Paul Gendreau et

al., Changes in EEG Alpha Frequency and Evoked Response

Latency During Solitary Confinement, 79 J. Abnormal Psychol.

54, 57-58 (1972) (declining EEG alpha frequency observed in

study of prisoners who volunteered to spend a week in

isolation).

17 Atul Gawande, Hellhole: Is Long-Term _ Solitary

Confinement Torture?, The New Yorker, Mar. 30, 2009,

http://www.newyorker.com/magazine/2009/03/30/hellhole. See

also Elizabeth A. Wilson, Beyond the Rack: Post-Enlightenment

Torture, 39 New Eng. J. on Crim. & Civ. Confinement 41, 59

(2013) (“Solitary confinement can result in brain changes

similar to those from severe blows to the head causing

unconsciousness.”) (citing Andelko Vrcea et al., Visual Evoked

14

interaction, the human brain may become as

impaired as one that has incurred a traumatic

injury.”'® Similarly, a study by the U.S. military of

former prisoners of war returned from imprisonment

in Vietnam reported that they found social isolation

to be as torturous and agonizing as any physical

abuse they suffered. !9

Perhaps the most powerful evidence of the

impact of prolonged, indefinite solitary confinement

is the statements of those who have been subjected

to it. John McCain spent five and a half years as a

prisoner of war — over two of those years were spent

in isolation. Regarding those years, Senator McCain

wrote “fiJt’s an awful thing, solitary .. [i]t crushes

your spirit and weakens your resistance more

effectively than any other form of mistreatment.”2°

Terry Anderson spent seven years as a

hostage of Hezbollah in Lebanon. The New Yorker

summarizes the description of his ordeal in his

memoir, Den of Lions, and relates some of the

impacts of solitary confinement:

He was despondent and depressed.

Then, with time, he began to feel

something more. He felt himself

disintegrating. It was as if his brain

Potentials in Relation to Factors of Imprisonment in Detention

Camps, 109 Int. J. Legal Med. 114, 114-15 (1996)).

'® Gawande, supra note 17.

19 Td.

20 John McCain, Faith of My Fathers 206 (2000).

15

were grinding down. A month into his

confinement, he recalled in his memoir,

“The mind is a blank. Jesus, I always

thought I was smart. Where are all the

things I learned, the books I read, the

poems I memorized? There’s nothing

there, just a formless, gray-black

misery. My mind’s gone dead. God,

help me.”

He was stiff from lying in bed day and

night, yet tired all the time. He dozed

off and on constantly, sleeping twelve

hours a day. He craved activity of

almost any kind. He would watch the

daylight wax and wane on the ceiling,

or roaches creep slowly up the wall. He

had a Bible and tried to read, but he

often found that he lacked the

concentration to do so. He observed

himself becoming neurotically

possessive about his little space, at

times putting his life in jeopardy by

flying into a rage if a guard happened

to step on his bed. He _ brooded

incessantly, thinking back on all the

mistakes he’d made in life, his regrets,

his offenses against God and family.

For unpredictable stretches of time, he

was granted the salvation of a

companion — sometimes he shared a

cell with as many as four other

hostages — and he noticed that

his thinking’ recovered rapidly

16

when this occurred. He could read

and concentrate longer, avoid

hallucinations, and better control his

emotions. “I would rather have had the

worst companion than no companion at

all,” he noted.

; After a few weeks, he felt his mind

slipping away again. “I find myself

trembling sometimes for no reason,” he

wrote. “I’m afraid I’m beginning to lose

my mind, to lose control completely.”

One day, three years into his ordeal, he

snapped. He walked over to a wall and

began beating his forehead against it,

dozens of times. His head was

smashed and bleeding before the

guards were able to stop him.?!

The history, research and testimony of those

who have lived it provide ample validation for the

observation that “fsjolitary confinement is

recognized as difficult to withstand; indeed,

psychological stressors such as isolation can be as

clinically distressing as physical torture.” 22

21 Gawande, supra note 17.

22 Metzner, supra note 13, at 104 (citing Hernan Reyes, The

worst scars are in the mind: psychological torture, 89 Int. Rev.

Red Cross 591-617 (2007); Metin Bagoglu et al., Torture vs.

other cruel, inhuman and degrading treatment: is_ the

distinction real or apparent?, 64 Archives of Gen. Psychiatry

277-85 (2007)).

17

lll. International Human Rights

Organizations and Courts Have Found

that Prolonged, Indefinite Solitary

Confinement, like Petitioner’s Pursuant

to the TDCJ Death Row Plan, Constitutes

Torture.

The United Nations Special Rapporteur of the

Human Rights Council on torture and other cruel,

inhuman or degrading treatment or punishment has

recognized that given its severe adverse health

effects, the use of solitary confinement itself can

amount to acts prohibited by article 7 (prohibition of

torture and ill-treatment) of the International

Covenant for Civil and Political Rights, adopted Dec.

19, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S.

171 (entered into force Mar. 23, 1976) (““ICCPR”), It

may also constitute torture as defined in article 1 of

the Convention against Torture and other Cruel,

Inhuman or Degrading Treatment or Punishment

(“CAT”) or cruel, inhuman or degrading treatment of

punishment (“CIDT”) as defined in article 16 of the

CAT. See U.N. Special Rapporteur of the Human

Rights Council, Interim Rep. on torture and other

cruel, inhuman or degrading treatment or

punishment, § 70, U.N. Doc. A/66/268 (Aug. 5, 2011).

The U.N. Human Rights Committee has also

noted that prolonged solitary confinement of the

detained or imprisoned person might amount to acts

prohibited by article 7 of the ICCPR. See U.N. Rep.

of the Human Rights Comm., General Comment No.

20 (44) (art. 7), U.N. Doc. A/47/40, annex VI, sec. A,

at 193, GAOR, 47th Sess., Supp. No. 40 (1992). And

the Istanbul Statement on the Use and Effects of

18

Solitary Confinement, adopted on December 9, 2007

at the International Psychological Trauma

Symposium, cautions that “[a]s a general principle

solitary confinement should only be used in very

exceptional cases, for as short a time as possible and

only as a last resort.” Instanbul Statement on the

Use and Effects of Solitary Confinement, 18 Torture,

no. 1, 2008, at 63, 66; see also U.N. Special

Rapporteur of the Human Rights Council, Interim

Rep. on torture and other cruel, inhuman or

degrading treatment or punishment, Annex, 25 U.N.

Doc. A/63/175 (July 28, 2008).

Similarly, international courts have

consistently found that prolonged or indefinite

isolation are strictly prohibited because they breach

the international legal prohibition against torture

and/or CIDT. See, e.g., Maritza Urrutia ov.

Guatemala, Merits, Reparations, and _ Costs,

Judgment, Inter-Am. Ct. H.R. (ser. C) No. 103, 4 87

(Nov. 27, 2003) (restating the finding of the Inter-

American Court of Human Rights that “prolonged

isolation and deprivation of communication are in

themselves cruel and inhuman treatment”); Bamaca

Velasquez v. Guatemala, Merits, Judgment, Inter-

Am. Ct. H.R. (ser. C) No. 70, § 150 (Nov. 25, 2000)

(finding that “the prolonged isolation and

deprivation of communication are in themselves

cruel and inhuman treatment, harmful to the

psychological and moral integrity of the person and a

violation of the right of any detainee to respect for

his inherent dignity as a human being”); Babar

Ahmad and Others v. United Kingdom, Eur. Ct. H.R.

App. Nos. 24027/07 et al., § 210, 52 1.L.M. 443, 2013

WL 5785362 (Apr. 10, 2012) (stating that while the

~~.

19

Court has never specified a period of time beyond

which solitary confinement will attain the minimum

level of severity required by article 3 (prohibition

against torture and _ ill-treatment), “solitary

confinement, even in cases entailing relative

isolation, cannot be imposed indefinitely on a

prisoner’); Mukong v. Cameroon, Communication

No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991,

§ 9.4 (Aug. 10, 1994) (total isolation, even for a

period of several days, without the possibility of

recreation, violates article 7 of the ICCPR).

Other courts have found that placing

individuals in solitary confinement for periods of five

to six years violates article 10 of the ICCPR (failing

to respect the inherent dignity of the human person).

See, e.g., Xavier Evans v. Trinidad and Tobago,

Communication No. 908/2000, U.N. Doc.

CCPR/C/77/D/908/2000, | 6.4 (Mar. 21, 2003);

Sobhraj v. Nepal, Communication No. 1870/2009,

U.N. Doc. CCPR/C/99/D/1870/2009, | 7.7 (July 27,

2010); see also Kennedy v. Trinidad and Tobago,

Communication No. 9845/1998, U.N. Doc.

CCPR/C/74/D/845/1998 (Mar. 26, 2002) (finding

violation of article 10 based on conditions of

confinement, which included eight years on death

row in solitary confinement); Yong-Joo Kang,

Communication No. 9878/1999, U.N. Doc.

CCPR/C/78/D/878/1999, 4 7.3 (July 15, 2003) (finding

violation of article 10 where applicant was held in

solitary confinement for thirteen years based on his

presumed political opinion. Detention in solitary

confinement for a period of 13 years “is a measure of

such gravity, and of such fundamental impact on the

20

individual in question, that it requires the most

serious and detailed justification.”).

The European Court of Human Rights has

found that a stringent regime of solitary confinement

of approximately three years constitutes inhuman

and degrading treatment. Jorgov v. Bulgaria, Eur.

Ct. H.R. App. No. 40653/98, 94 82-84, 86 (Mar. 11,

2004), http://hudoc.echr.coe.int/eng?i=001-61679

(finding violation of article 3 of the Convention for

the Protection of Human Rights and Fundamental

Freedoms where the applicant was held in solitary

confinement for approximately three years in a small

cell, was allowed one hour out-of-cell time in an open

yard with other inmates, spent almost 23 hours per

day alone in his cell, and could receive one or two

half-hour visits per month. The Court considered

that “the stringent custodial regime to which the

applicant was subjected and the material conditions

in which he was detained must have caused him

suffering exceeding the unavoidable level inherent in

detention.”). See also Polay Campos v. Peru,

Communication No. 577/1994, U.N. Doc.

CCPR/C/61/D/577/1994, 4 8.7 (Nov. 5, 1997) (finding

that relative isolation for 23 hours a day in a small

cell with only 10 minutes of sunlight per day

constitutes treatment in violation of articles 7 and 10

of the ICCPR). The European Court of Human

Rights also stated that “even for difficult and

dangerous prisoners, periods of solitary confinement

should be as short as possible,” and found violations

even for solitary confinement of less than three

years. See Mathew v. Netherlands, 2005-IX Eur. Ct.

H.R. 57, 44 197, 217 (Sept. 29, 2005) (finding that

the applicant was subjected to inhuman treatment,

21

in violation of article 3 of the Convention for the

Protection of Human Rights and Fundamental

Freedoms, by virtue of his detention “in a situation

amounting to solitary confinement,” which included

confinement to his cell for 23 hours a day).

Relying upon article 5 of the American

Convention on Human Rights, which recognizes the

right to the integrity of the person, the Inter-

American Court of Human Rights found that

“prolonged isolation and deprivation of

communication are in themselves cruel and inhuman

treatment, harmful to the psychological and moral

integrity of the person and a violation of the right of

any detainee to respect for his inherent dignity as a

human being.” Veldsquez-Rodriguez v. Honduras,

Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4,

4 156 (July 21, 1988).

Amici bring to the attention of the Court the

uniform view of the medical, psychiatric and

international legal community to underline that the

experience of solitary confinement and_ the

ineluctable mental and physical disintegration of its

victims is one which is universally devastating and

destructive, is unjustifiable as a security matter, and

is inevitably cruel and unusual under the standards

of the Eighth Amendment, customary international

law, treaties to which the U.S. is signatory, and the

common law.

22

CONCLUSION

Prolonged, indefinite solitary confinement has

been long recognized as having devastating effects

on individuals, effects like those of physical torture.

It has been criticized and rejected by international

organizations and courts. It violates evolving

standards of decency as incorporated into the

Constitution by the Eighth Amendment to subject a

person to such confinement and then execute them.

Accordingly. and for the reasons set forth in the

petition, the writ of certiorari should be granted.

Dated: January 19, 2016

Respectfully submitted,

Eric L. Lewis

Counsel of Record

Jeffrey D. Robinson

Esther Yong

LEWIS BAACH PLLC

1899 Pennsylvania Avenue, NW

Suite 600

Washington, DC 20006

(202) 833-8900

eric.lewis@lewisbaach.com

Counsel for Amici Curiae