Amicus Curiae Brief — Ziglar v. Turkmen, 137 S. Ct. 292 (2016) (No. 15-1358)

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RECORD LED

AND DEC 22 2016

GREFS OFFICE OF THE CLERK

Nos. 15-1358, 15-1359 and 15-1363

In the

Supreme Court of the United States

20+

JAMES W. ZIGLAR,

Petitioner,

AHMER IQBAL ABBASI, et ai,

Respondents.

JOHN D. ASHCROFT, former Attorney General, ef ai.,

Petitioners,

AHMER IQBAL ABBASL et al.,

Respondents.

_—_—— — oe = —_——- +

DENNIS HASTY, ef ai.

Petitioners,

AHMER IQBAL ABBASI, et al,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

————_—_—_—_——

BRIEF OF MEDICAL AND OTHER SCIENTIFIC

AND HEALTH-RELATED PROFESSIONALS AS

AMICI CURIAE IN SUPPORT OF

RESPONDENTS AND AFFIRMANCE

| ERIC ORDWAY

KAMI LIZARRAGA Counsel of Record

GLENDA BLEIBERG WEIL, GOTSHAL & MANGES LLP

ELIZABETH VELEZ Counsel for Amici Curiae

JESSICA DIJILANI 767 Fifth Avenue

JAY MINGA New York, New York 10153

ALEXANDRIA SWETTE (212) 310-8000

NIGAR SHAIKH eric.ordway@weil.com

Of Counsel

TABLE OF CONTENTS

Pave

INTEREST OF AMICI CURIALG .............00..0.-......-0c0.0 1

BACKGROUND ....... a BM oek § peer an Seede att taints edanece 2

SUMMARY OF ARGUMENT .................0...........0....... 6

Ci Sy get re ON A en Ue GUUS eels Fin cay Res Aen! S

l. The Medical and Other Scientific and

Health-Related Literature Firmly

Establishes that Solitary Confinement

Causes Severe’ Psychological and

SE OUINOTIE WUMNOIIND ogg mocoeccnividmsnenenanccocaneacs cnc. 8

A. Research Demonstrates that

Solitary Confinement Causes

Grave Psychological Damage ........ eu

b. Research Additionally

Demonstrates that Solitary

Confinement Causes Serious

Physiological Damage ..................06.- <o

IT. International Legal Standards and the

Laws of Other Countries Prohibit the

Imposition of Solitary Confinement

Under the Circumstances of This Case .... 26

a 39

APPEINDIOGA- Lamt OF Ainacd...... <<. <ccccccccceoscocceccescccens la

TABLE OF AUTHORITIES

Foreign Cases Pages

Bacon v. Surrey Pretrial Services Centre,

ee I Ie I iiss ice ecskevsavcicedocane 35

Grenier V. f.,

Tc ta om aauecacacucaScoaue

Tlagscu’ v. Moldova & Russia, Application No.

48787/99, Eur. Ct. of H.R. (2004)... 29

Jones v Scully (2002)

Rr ME I oc cock cen scdacdens esas coats ad ee

Naen v Minister for Immigration & Multicultural &

Indigenous Affairs |2003]

ate MNES ie et TN a dl Rat aS ee ei SO 31

Ogiamien v. Ontario,

2016 ONSC 3080 (Canada) . 85

R. v. Hamm,

2016 ABQB 440 (Canada) ............. mabousibceninzectsits 35

Velasquez-Rodriguez v. Honduras, \nter-Am. Ct.

H.R. (ser. C), No. 4 (July 29, 1988) ....... 28, 29

Foreign Statues

Anhalteordnung Detention Regulation |BGBI. I Nr.]

No. 128/1999, as amended, BGBI. II Nr. 439/2005,

fe sa REA ay EN See SEER rire Ae

Lil

Anti-Terrorism Law of People’s Republic of China,

art. 6 (2016).............. De Bec Rar ae ee

Canadian Charter of Rights & Freedoms, Part I of

the Constitution Act, 1982 § 15.00.00... eee ees 30

Crreulatre du 14 avril 2011 reiative au placement a

lisolement des personnes détenues NOR:

JUSK11400238C, France ......... Pa csouse bavkencs sees see

Corrections Management Act 2007

Scat SSE ee ic. naan

Correctional Services Act 1982

RAD @ OOtee, Ammetwalia .................-.-..6..cccccccccccs.....87

Corrective Services Act 2006

(QLD) s 53(2), Australia .......0.0 ace

Corrective Services Regulation 2006

(QLD) § 5, Australia 00.00.0000... sFice, st8oe cas SO

The Detention Centre Rules, 2001 SI 2001/238,

SUITES GUI WOOD oa vec vinvncesnscscescevessecascosscc telly Oe OF

Fundamental Law of Hungary (2011), art. XV(2)

Sea em 30

Imprisonment Act (767/2005), “Vankeuslaki,” Ch. 18,

| ee | paetaieda 35, 37, 38

Irish Prison Act (2007), part 3...........ccccccccesseseeeeeeeeeeBD

Law No. 24.660, July 8, 1996 (Ley de Ejecucién de la

Pena Privativa de la Libertad n° 24.660),

Argentina | SSoclestakiVetaisue rbmaanchd ness caces oun

Law of the People’s Republic of China on Admin-

istration of Embarkation and Disembarkation,

arta. GOOD GROTS), COme «...cccccccoccccscconansasetbastueunae 37

Ordinance for Treatment of Detainees,

ext. 18 CRGUL), Ge ocecssccntcsaniouosectivesendeaanes 35

Prisons Act 1981 (WA) s 43(1), Australia.................37

Prison Act of 16 March 1976, amended by art. 7, Act

of 25.04.2013 §§ 88-89, Germany ....................00000 34

Prison Rules 2007 (S1252/2007), Rules 62-64, Ireland

Racial Discrimination Act 1975 (CTH) s 10, Australia

30, 31

Other Authorities

ACLU, @ircriny: Paper? The Dangerous Overuse of

Solitary Confinement in the United States, ACLU

(Aug. 2014), https://www.aclu.org/sites/default/

files/assets/stop_solitary_briefing_paper_updated_

nnn FES ii owicnsicssrciccsssoscedecccsebenaeaeee 24, 25

Am. Pub. Health Ass’n, Solitary Confinement as a

Public Health Issue (Nov. 5, 2013), https://www.

apha.org/policies-and-advocacy/public-health-

policy-statements/policy-database/2014/07/1 4/13/

30/solitary-confinement-as-a-public-health-

SUID. «<0 nasneeesssengsecinnadednussenstmeesmabenselanyinainannanannnE 3, 11

Australian Human Rights Commission, Human

rights standards for immigration detention, Rep.

ee ccsmmapevanweveves 35, 36

Kate Allen, Researchers Study Effects of Prolonged

lsolation Among Prisoners, The Toronto Star (Feb.

14, 2014), https://www.thestar.com/news/world/

2014/ 02/14/researchers_study effects_of_prol

onged_ isolation_ among_prisoners.htm] ............. 25

Kenneth Appelbaum, Am. Psychiatry Should Join

the Call to Abolish Solitary Confinement, 43 J.

Am. Acad. Psychiatry & L. 406 (2015).............. 9,11

Elizabeth Bennion, Banning the Bing: Why Extreme

Solitary Confinement is Cruel & Far Too Usual

Punishment, 90 Ind. L. J. 741 (2015)

8,9, 11,12

Sigurd Benjaminsen & Birgit Erichsen, Se/vmord-

sadfeerd Blandt Indsatte, 16 Copenhagen:

Direktoratet for kriminalforsorgen (2002) ........... 17

Mark Bowers et al., Solitary Confinement as Tor-

ture, U. of N.C. Sch. of L. Immigration/Human

Rights Clinic (2014) .. eee ae

Correctional Ass’n of New York, Mental Health in

the House of Corrections: A Study of Mental

Health Care in New York State Prisons (2004)

15. 16

Francois Crépeau, Rep. of Special Rapporteur on

Human Rights of Migrants, U.N. Doc.

A/HRC/20/24 (Apr. 2, 2012)... ....... | 32

Int'l Comm. of Red Cross, /HL - Rule 90, Torture &

Cruel, Inhuman or Degrading Treatment,

https://ihl-databascs.icre.org/customary-ihl/eng/

gS 8 RR ae

Stefan Enggist et al., WHO Regional Office for

Europe, Prisons & Health (2014).............. 21, 26, 27

Kssex paper 3° Initial guidance on the interpretation

& implementation of the Nelson Mandela Rules,

Ch. 5. Restrictions, discipline & sanctions, U. of

Essex-Human Rights Centre (Apr. 2016) ............ 36

European Committee for the Prevention of Torture &

Inhuman or Degrading Treatment or Punishment,

Rep. to the Gov't of Denmark on the visit to Den-

mark carried out by the CPT from Jan. 28 — Feb. 4,

2002 (Sept. 25, 2002), http://www.cpt.coe.

int/documents/dnk/2002-18-inf-eng.pdf................ 26

Expert Rep. of Craig Haney, Ashker v. Governor of

the State of Cal, No. 09-cv-5796 (N.D. Cal. Mar.

+ dp Se ret the tae: eat OS IS ered SE Sls

Expert Rep. of Juan E. Méndez, Ashker v. Governor

of the State of Cal., No. 09-cv-5796 (CW) (N.D. Cal.

RI Near a ce aa fee et 20, 21

Expert Rep. of Terry A. Kupers, E. Miss. Correction-

al Facility @June 16, 2014), https://www.aclu.

org/sites/default/files/assets/expert_report_of_terrr

y_kupers_with_table_of_contents.pdf................... 23

Fourth Amended Complaint & Demand for Jury

Trial. Turkmen v. Ashcroft, 02-cv-2307 (E.D.N-Y.

Sept. 3, 2010), ECF No. 726 ..................00-..:. passim

Carnagie Fujio et al., Physicians for Human Rights,

Burted Alive: Solitary Confinement in the U.S.

Detention Svstem (April 2013)...............0000000e 19, 20

G.A. Res. 39/46, 1984 U.N. Convention Against

Torture & Other Cruel & Inhuman or Degrading

Treatment or Punishment (Dec. 10, 1984)

G.A. Res. 45/111, Principle 7 (Dec. 14, 1990)........... 34

G.A. Res. 70/175, Rule 44 (Dec. 17, 2015) ........ passim

G.A. Res. 217AUID, U.N. Universal Declaration of

Human Rights (Dec. 10, 1948) ....00....c.ecccceeeee cece 26

G.A. Res. 2106, Int’] Convention on the Elimination

of All Forms of Racial Discrimination, art. 2(1),

5(a) (Jan. 4,1969).. . | a ee

G.A. Res. 2200A(XXI), 1976 U.N. Int’l Covenant on

Civil & Political Rights (Mar. 23, 1976)

ae Fe Ske cote de Bt Oe

Stuart Grassian, Psychopathological Effects of

Solitary Confinement, 140 Am. J. Psychiatry 1450

(1983) . isp anahky Ronstigsaateeneg tibewatethaubessledec ca uedaetes race

Stuart Grassian, Psychiatric Effects of Solitary

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

GI loss. cceisasivcrpdsdarisaacccpsedestamemescud nccuabbaieads passim

Stuart Grassian & Terry Kupers, The Colorado

Study vs. the Reality of Supermax Confinement,

13 Correctional Mental Health Rep., 1 (2011)

vill

Craig Haney, Menta/ Health Issues in Long Term

Solitary & “Supermax” Confinement, 49 Crime &

RR ee

Craig Haney & Mona Lynch, Regulating Prisons of

the Future: A Psycholog: +1 Analysis of Supermax

& Solitary Confinement, 23 N.Y.U. Rev. of L. &

Soc. Change 477 (1997) ..... Ce oer ee

U.R.Q. Henriques, The Rise & Decline of the Sepa-

rate System of Prison Discipline, Past & Present

_aatdatn RRR E 180 ate aeclnasa oAB oan dee

Int'l Psychol. Trauma Symp., /stanbu/ Statement on

the Use & Effects of Solitary Confinement (Dec. 9,

2007), http://solitaryconfinement.org/ up”

loads/Istanbul_expert_statement_on_sc.pdf

...9, 13, 14, 21

Lawrence E. Hinkle & Harold G. Wolff, Communist

Interroztion & Indoctrination of “Enemies of the

State,” AMA Archives of Neurology & Psychiatry,

128 (1956)... | : si sauces enne

Michael Jackson, Prisoners of J/solation: Solitary

Confinement in Canada (1983) ..............00000cceeee00es 21

Matti Joukumaa, Prison suicide in Finland. 1969-

1992, 89 Forensic Sci. Int’] (1997)............0...00000000. 17

Fatos Kaba et al., Solitary Confinement & Risk of

Self-Harm Among Jail Inmates, 104 Am. J. of Pub.

I Ie a as 16

Ida E. Koch, Jsolationens psykiske og sociale

folgevirkninger, 60 Manedsskrift for Praktisk

ee aR 17, 18, 22

Inter-American Commission on Human Rights, Rep.

on the Use of Pretrial Detention in the Americas,

Doc. 46/13, OEA/Ser.L/V/II. (2013) ..........ccceceeeeeeee 36

Terry Kupers, /solated Confinement: Effective Meth-

od for Behavior Change or Punishment for Pun-

ishment’s Sake?, Routledge Handbook of Int’l

Crime & Just. Stud. (2013) ....00.....ce ee. 10, 11,16

Alison Liebling, Prison Suicide & Prisoner ¢ 0ji:i<

26 Crime. & Just. 283 (1900) .................c.c....0..0200. 16

Joane Martel, Solitude & Cold Storage’ Women's

Journeys of Endurance in 21: -eition, Elizabeth

Fry Soc’y of Edmonton (1999) .................cccceeeeeeeees 18

Juan E. Méndez, Interim Rep. of the Special Rappor-

teur of the Human Rights Council on torture &

other cruel, inhuman or degrading treatment or

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

Ooo PP eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee ee eee eee eee eee

Juan E. Méndez, Interim Rep. of the Special Rappor-

teur on Torture & Other Cruel, Inhuman or De-

grading Treatment or Punishment, U.N. Doc.

Fi I iiisccccpantcnidoiiedlataesnidoasinecon 36

Office of the High Commissioner for Human Rights,

Manual on the Effective Investigation & Documen-

tation of Torture & Other Cruel, Inhuman or De-

grading Treatment or Punishment (1999)

Office of the High Commissioner for Human Rights,

Compilation of Deliberations of Working Grp. on

Arbitrary Detention, Delib. No. 9, U.N. Doc. No.

A/HRC/22/44 (Dec. 24, 2012) ..........cceeceeeeeeeeees 33, 34

Office of the High Commissioner for Human Rights,

Rep. of the Working Grp. on Arbitrary Detention,

Civil & Political Rights, Annex II, U.N. Doc.

E/CN.4/2000/4 (Dec. 28, 1999)...................c0cceeeeeees 33

Opinion, Turkmen v. Hasty, Case No. 13-981 (2d.

Cir! Jun. 17, 2015), ECF No. 266 .............ccccccceceesss s

National Commission on Correctional Health Care,

Position Statement: Solitary Confinement (Isola-

Ns Se eictiicctccassetvkcia nnn passim

Hernan Reyes, Zhe worst scars are in the mind:

psychviczical torture, 89 Int'l Rey. of the Red

Rn Cs I ors Secon cava ciueacdest cea

Heriberto G. Sanchez, Suicide Prevention in Admin-

istrative Sess evation Units: What Is Missing? 19

J. of Correctional Health Care 93 (2013).............. 16

G.D. Scott et al., Changes in EEG Alpha Frequency

& Evoked Response Latency During Solitary Con-

finement, 79 J. of Abnormal Psych. 54 (1972)

Peter Scharff Smith, /solation & Mental Illness in

Vridsloselille 1859-1873: A New Perspective on the

Breakthrough of the Modern Penitentiary, Scandi-

navian J. of Hist. (2004) 00.0... 19, 20

Peter Scharff Smith, Zhe Effects of Solitary Con-

finement on Prison Inmates: A Brief History &

Review of the Literature, 34 Crime & Just. 441

(2006)... : Maeda passim

T. Shallice, Zhe Ulster Depth Interrogation Tech-

niques & Their Relation to Sensory Deprivation

Research, 1 Cognition 385 (1972).....0..0.0000...........18

Sharon Shalev, A Sourcebook on Solitary Confine-

ment, Mannheim Centre for Criminology, London

School of Economics & Political Science (Oct. 2008)

pinahienoniovectapiepiabaiabuommndiniaddaneeeeinatmbbatiimsasadaiael passim

W. Spann et al., Suizide in bayrischen Vollzugsan-

stalten, Miinchener medizinische Wochenschrift

Jan Stang et al., Manger i sikkerhetscelle—en utfor-

dring, Tidsskrift For Den Norske Legeforening,

IP MI ieists Ssiviciasccrcupsdencnssnactloenecesantaitsighecmcheknenssiias 13

U.N. Congress on the Prevention of Crime & the

Treatment of Offenders, Standard Minimum Rules

for the Treatment of Prisoners (May 13, 1977)

isu woueeaee aes ...00, 34, 38

U.N. Human Rights Commission, General Comment

No. 29, States of Emergency (Article 4), U.N. Doc.

No. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001)......32

U.N. Office of the High Commissioner for Human

Rights, Opening Remarks on “Human Rights of

Migrants in Detention Centres,” 12th Sess., H.R.

Council (Sept. 19, 2009)..... eR ER Ata

X11

U.N. Special Rapporteur, Interim Rep. of the Human

Rights Council on torture & other Cruel, inhu-

mane or degrading treatment of punishment, U.N.

oe, Fe ee i TE oc cnnices secs crevnesess seseees. 36

Elizabeth Vasiliades, So/itary Confinement & Int?

Human Rights: Why the U.S. Prison System Fails

Global Standards, 21 Am. U. Int’] L. Rev. 71 (2005)

INTEREST OF AMICI CURIAE

Amici are a group of medical and other scien-

tific and health-related experts from the United

States and numerous other countries with extensive

experience studying the psychological and physiolog-

ical effects of solitary confinement and other punitive

conditions of incarceration.! Amici have spent

decades documenting these health effects and advo-

cating on behalf of prisoners before courts, legisla-

tures, and international and foreign legal bodies.

Amici include a member of the United Nations

Subcommittee for the Prevention of Torture, experts

from the World Health Organization and World

Psychiatric Association, preeminent psychologists

and psychiatrists specializing in the effects of soli-

tary confinement, prison health services experts and

monitors, neuroscientists, physicians, and medical

professors. ?

Amicis commitment to evaluating and ad-

dressing the health effects of solitary confinement

gives them a strong interest in the resolution of this

case, in which Respondents seek damages to redress

|! Amici obtained written consent to file their brief from

Petitioners and Respondents, copies of which accompany

this submission, as required by Rule 37.3(a). Amici state

in accord with Rule 37.6 that this brief was not authored,

in whole or in part, by counsel for any party. Further, no

monetary contribution to the preparation or submission of

this brief was made by any person or entity other than

Amici and their counsel.

2 A detailed identification of the nineteen Amici appears

in Appendix A.

their indefinite and prolonged detention in solitary

confinement solely based on their race or religion

and the commission of immigration infractions.

Based on decades of study, experience, and advocacy,

Amici are uniquely positioned to discuss the medical

and other scientific and health-related literature,

international legal standards, and foreign laws

regarding the use of solitary confinement as imposed

in this case.

Accordingly, Amici respectfully submit this

brief in support of Respondents to detail the estab-

lished, well-documented, and exhaustive medical and

other scientific and health-related research, span-

ning decades and countries, that virtually unani-

mously concludes that prolonged solitary confine-

ment, for more than a few weeks, inflicts profound

psychological and physiological damage on inmates,

or in this case, detainees held without charge.

Moreover, as Amici explain below, because of the

intense pain and suffering caused by solitary con-

finement, international legal standards and the laws

of other countries restrict its use to a measure of last

resort, and would prohibit its use under the circum-

stances of this case. Amici urge this Court to hold

similarly.

BACKGROUND

The term “solitary confinement,” as used in

the international medical and legal literature and

throughout this brief, refers to “the confinement of

prisoners for 22 hours or more a day without mean-

ingful human contact.” G.A. Res. 70/175, Rule 44

(Dec. 17, 2015) (“Mandela Rules”); see also Craig

Haney, Menta/ Health Issues in Long Term Solitary

and “Supermax” Confinement, 49 Crime & Deling.

124, 125-27 (2003) (““Haney, Mental Health Issues’)

(defining solitary confinement as an inmate’s “physi-

call] segregatlion] from the rest of the prison popula-

tion” and lockdown in a tiny cell of usually no more

than 80 square feet for 23 hours or more per day);

Juan E. Méndez, Interim report of the Special Rap-

porteur of the Human Rights Council on torture &

other cruel, inhuman or degrading treatment or

punishment, U.N. Doc. A/66/268, 8 (Aug. 5, 2011)

(“Méndez 2011 Report”) (“solitary confinement” is

“the physical isolation of individuals who are con-

fined to their cells for 22 to 24 hours a day”); Am.

Psych. Ass’n, Position Statement on %esrccation of

Prisoners with Mental Illness, 2 (2012) (‘APA Posi-

tion Statement”) (“segregation units .. . [have] one to

two inmates in a cell”).

Cells used for solitary confinement are “de-

signed to minimize human contact and environmen-

tal stimulation.” Am. Pub. Health Ass’n, Solitary

Confinement as a Public Health Issue, 1 (Nov. 5,

2013), https:‘//www.apha.org/policies-and-advocacy/

public-health-policy-statements/policy-database/

2014/07/14/13/30/solitary-confinement-as-a-public-

health-issue (““APHA, Solitary Confinement’). Ac-

cordingly, prisoners in solitary confinement routinely

are deprived of almost all meaningful perceptual,

social, and occupational stimulation, including

natural light, most or all personal property, and

almost all human interaction (which is vital to

maintain a sense of identity and grasp of reality),

except that which “occurs through bars or . . . slots in

solid metal doors.” /d. They also are denied access

to vocational, educational, and recreational pro

grams. Haney, Mental Health Issues at 127.

The use of solitary confinement——particularly

the kind of segregated housing unit (“SHU”)? or

“supermax” facility in which Respondents were

housed in 2001-2002—has exploded over the past

several decades across the United States. In 2000,

“there were approximately 20,000 prisoners confined

to supermax-type units in the United States.” /d. at

125. By 2016, that number multiplied to “approxi

mately 80,000 inmates ... held in some form of

isolation in state and federal prisons on any given

day.” National Commission on Correctional Health

Care Position Statement: Solitary Confinement

(solation), 1 (Apr. 2016) (““NCCHC, Position State-

ment’).

The Respondents in this case were placed in

solitary confinement, in a federal SHU facility, even

though they had not been charged with—-much less

convicted of—any crime. Fourth Amended Com-

plaint & Demand for Jury Trial, Turkmen v. Ash-

croft, 02-cv-2307 (E.D.N.Y. Sept. 3, 2010), ECF No.

726 (“Compl.”) at 44 4, 52. Picked up in the weeks

following September 11th, they were detained and

isolated solely because they were non-citizens who

were, or were perceived to be, Arab or Muslim and

had committed civil immigration infractions. Id.

“4 1, 29, 43. Although there was no individualized

evidence that they had terrorist ties, they were held

indefinitely in solitary confinement for 2.5 to 8

3 Throughout this brief, Amici employ the same abbrevia-

tions used in Respondents’ Brief.

months in each case, until the federal government

ultimately cleared them. Jd. 4 1, 41, 142, 152, 170,

174, 188, 200, 211, 217-18, 227, 234, 237.

The extreme and punitive conditions to which

Respondents were subjected squarely qualify as the

kind of “prolonged” solitary confinement—1.e., “long-

er than 3 to 4 weeks”—-known to inflict severe health

consequences. NCCHC, Position Statement, at 1.

Each detainee was confined to a “tiny cell[{]” for “at

least 23 hours a day,” alone or with one other detain-

ee, for months on end.4 Compl. 94 5, 76, 163, 182,

188, 211, 234. The cells were completely “bare”; no

property, not “even toilet paper” or “other personal

hygiene items,” were kept in the cells. Jd. 4 76,

103, 130. “[B]mght lghts were kept on in the

cells ... 24 hours a day,” causing sleep deprivation,

and the cells were “very cold at night.” Jd. 44) 76,

119, 223. For the first month, the detainees were

“denied all recreation” outside their cells and sub-

jected to a “communications blackout” forbidding

“any social or legal visits or telephone calls.” /d.

| 79, 122. Even after the bans were lifted, the

detainees were deterred from recreation by the

extreme cold in the outdoor recreation “cages,”

subjected to grossly humiliating mandatory strip-

searches, suffered abuse in transport, and were

routinely denied the weekly legal calls and monthly

social calls technically permitted. /d. 44 83, 111-18,

122.

4 Three of the six remaining Respondents were confined

alone for all or part of their months in the SHU: Benatta

for 5 months, Bajracharya for 2 months, and Khalifa for

1.5 months. Compl. 4 182, 188, 206, 212, 234.

Thus, the facts and circumstances of the Re-

spondents’ arrest and detention, combined with the

conditions imposed on them during such detention,

maximized their social isolation and all but eliminat-

ed environmental stimuli and meaningful activity.

These conditions “exert{ed] maximum pressure” on

them, and were designed specifically to inflict pain

and suffering and, ultimately, to “break|]” them. IZd.

77 61, 77.

SUMMARY OF ARGUMENT

The wealth of medical and other scientific and

health-related research examining the consequences

of prolonged use of solitary confinement overwhelm-

ingly concludes that it inflicts profound psychological

damage. Studies across nations and decades con-

clude that the social isolation, sensory deprivation,

and extreme idleness inherent in solitary confine-

ment is psychologically toxic and deprives inmates of

the basic human needs to function. This leads to

dramatic mental deterioration, even in previously

healthy individuals.

As a result, an inordinately high percentage of

inmates in solitary confinement exhibit a set of

psychopathologies which many medical professionals

describe as unique and not present in any other

syndrome. These symptoms include difficulties with

thinking and memory, stupor, obsessional thinking,

inability to tolerate external stimuli, hallucinations,

and, in extreme cases, a delirium with associated

psychotic symptoms. As a result of the psychological

toll, inmates in solitary confinement disproportion-

ately engage in high rates of self-mutilation and

suicide. Even for those eventually released, the

damage is often permanent.

Medical research also documents that pro-

longed solitary confinement can inflict grave physio-

logical harms. As with psychological symptoms,

reports of physical symptoms are consistent across

decades and countries and include serious sleep

disturbances, profound lethargy, dizziness, and

deterioration of cardiac, musculoskeletal, gastroin-

testinal, and genitourinary function. The extreme

deprivations of solitary confinement may even alter

the physical structure of the brain. Again, the

physiological damage is often permanent.

In recognition of the severe pain and suffering

inflicted by prolonged solitary confinement, interna-

tional legal institutions have condemned its use for

over 15 days as cruel and inhuman treatment and, in

some cases, as torture. Moreover, international

bodies limit even short-term solitary confinement to

a measure of last resort. They do not permit its use

on the basis of race or religion or for immigration

infractions. Laws of many other countries reflect

these international legal restrictions on the use of

solitary confinement, including, for example, the

laws of England and Wales, Germany, France,

Austria, Hungary, Finland, Ireland, Canada, Aus-

tralia, Japan, China, and Argentina. ‘Thus, both

international legal standards and the laws of other

countries prohibit the use of indefinite, prolonged

solitary confinement under the circumstances of this

case.

This country’s laws likewise forbid the imposi-

tion of extreme and punitive conditions of confine-

ment for discriminatory reasons and without suffi-

cient cause, just as the Second Circuit held below.

See Opinion, at 32, Turkmen v. Hasty, No. 13-981

(2d. Cir. Jun. 17, 2015), ECF No. 266. Upholding

those laws is imperative not simply to redress the

harms suffered by Respondents but to clarify the law

going forward. Given the current political climate

and rhetoric broadly connecting immigrants with the

specter of terrorism, this Court’s decision will have

direct implications for the treatment of non-citizens

in this country in the years to come. For these

reasons, Amici respectfully request that the Court

affirm the decision below and permit Respondents to

pursue their constitutional challenges to the extreme

and punitive conditions of their confinement.

ARGUMENT

1. The Medical and Other Scientific and

Health-Related Literature Establishes

that Solitary Confinement Causes Severe

Psychological and Physiological Harms

A. Research Demonstrates that Soli-

tary Confinement Causes Grave

Psychological Damage

The extensive research conducted in prison

systems throughout the United States and in many

other countries is “remarkably consistent” in its

findings that prolonged solitary confinement inflicts

“deleterious psychological effects.” Elizabeth Ben-

nion, Banning the Bing: Why Extreme Solitary Con-

finement is Cruel & Far Too Usual Punishment, 90

Ind. L. J. 741, 756 (2015) (“Bennion, Banning the

Bing’); see also Hernan Reyes, The worst scars are in

the mind: psychological torture, 89 Int'l Rev. of the

Red Cross, No. 867, 591, 607 (Sept. 2007) (“Being

confined for prolonged periods of time alone in a cell

has been said to be the most difficult torment of all to

withstand.”). In fact, “[nJearly every scientific in-

quiry into the effects of solitary confinement over the

past 150 years has 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

Appelbaum, Am. Psychiatry Should Join the Call to

Abolish Solitary Confinement, 43 J. Am. Acad. Psy-

chiatry & L. 406, 410 (2015) (“Appelbaum, Abolish

Solitary’). When inmates are subjected to solitary

confinement for longer periods i.e., months, years,

or decades—the risks of profound, permanent psy-

chological damage skyrocket. Stuart Grassian,

Psychiatric Effects of Solitary Confinement, 22 Wash.

U. J. of L. & Pol’y 325, 346 (2006) (“Grassian, Psy-

chiatric Effects”).

The direct link between solitary confinement

and severe psychological harm has been “convincing-

ly documented” in many countries since the nine-

teenth century. Int'l Psychol. Trauma Symp., /stan-

bul Statement on the Use & Effects of Solitary

Confinement, 2 (Dec. 9, 2007), http://solitaryconfine

ment.org/uploads/Istanbul_expert_statement_on_sc.p

df. (“Istanbul Statement”). For example, between

1854 and 1909, 37 reports in Germany alone identi-

fied solitary confinement as the central cause of

psychotic illness among prisoners. Sharon Shalev, A

Sourcebook on Solitary Confinement, Mannheim

Centre for Criminology, London School of Economics

and Political Science, 10 (Oct. 2008) (‘Sourcebook’).

This documented correlation led German officials to

call for reform of the use of solitary confinement. /d.

England likewise reformed its solitary confinement

policies in the nineteenth century after documenting

extraordinary increases in psychological disturb-

ances among isolated prisoners. See U.R.Q. Hen-

riques, The Rise & Decline of the Separate System of

Prison Discipline, Past & Present, 86 (1972). Studies

from Canada, Denmark, Norway, South Africa, and

Switzerland, as well as several communist nations

during the Cold War, recorded similar substantial

increases in the prevalence of psychiatric health

problems among isolated prisoners. Peter Scharff

Smith, The Effects of Solitary Confinement on Prison

Inmates: A Brief History and Review of the Litera-

ture, 34 Crime & Just. 441, 481-87 (2006) (“Smith,

Effects of Solitary’).

The well-established psychological harms in-

flicted by solitary confinement are a direct result of

its inherent characteristics: “isolation” from other

people, lack of meaningful perceptual stimulation,

and extreme “idleness” resulting from the denial of

any productive activities. See Terry Kupers, Isolated

Confinement: Effective Method for Behavior Change

or Punishment for Punishment’s Sake?, Routledge

Handbook of Int'l Crime & Just. Stud., 5-6 (2013)

(“Kupers, lsolated Confinement”). As explained by

Dr. Terry Kupers, “[h]Juman beings require at least

some social interactions and productive activities to

establish and sustain a sense of identity and to

maintain a grasp on reality.” Jd. at 6. When a

person is deprived of meaningful social contact and

activity, “unrealistic ruminations and beliefs cannot

be tested” and “are transformed into unfocused and

irrational thoughts.” /d. “|D]jeprived of a sufficient

level of environmental and social stimulation, indi-

viduals will soon become incapable of maintaining an

adequate state of alertness and attention to the

environment.” Grassian, Psychiatric Effects, at 331.

This inability to concentrate can render isolated

prisoners unable to read or watch television even

when such pastimes are permitted (and they often

are not). Smith, Effects of Solitary at 490. “Internal

impulses” grow to “overwhelming proportions,”

without check, and “[djisorganized behaviors

emerge.” Kupers, Jsolated Confinement, at 5.

Recognizing the direct link between solitary

confinement and the harms it causes, experts advise

that “the inherent restriction in meaningful social

interaction and environmental stimulation and the

lack of control adversely impact the health and

welfare of all who are held in solitary confinement.”

NCCHC, Position Statement, at 2 (emphasis added).

Even previously healthy, stable inmates—not just

those with preexisting mental illness—predictably

will deteriorate psychologically in prolonged isola-

tion. Grassian, Psychiatric Effects, at 332; APHA,

Solitary Confinement at 2 (“Prisoners in long-term

solitary confinement are subject to significant mental

suffering and deterioration.”). After all, “[t]he psy-

chological distress and suffering caused by solitary

confinement” is often the reason for doing it, “not an

unintended side effect.” See Appelbaum, Abolish

Solitary, at 410.

Inmates subjected to the profound stresses of

solitary confinement exhibit a “strikingly consistent”

set of “psychiatric symptoms,” recorded in decades of

case studies, articles, and personal accounts. Ben-

nion, Banning the Bing at 757; see also Smith, £f

fects of Solitary, at 488 (“lA] significant percentage of

prisoners subjected to solitary confinement suffer

from a similar range of symptoms irrespective of

differences in the physical conditions in various

prisons and in the treatment of isolated inmates.”

(collecting studies)).

Dr. Craig Haney, a preeminent expert on the

psychological harms of solitary confinement, has

catalogued these harms: “anxiety,” “panic,” “with-

drawal,” “hypersensitivity,” “ruminations,” “cognitive

dysfunction,” “hallucinations,” “loss of control,”

“irritability,” “aggression, and rage;” “paranoia;”

“depression,” “a sense of impending emotional break-

down,” “self-mutilation,” and “suicidal ideation and

behavior.” Haney, Mental Heaith Issues at 130-31

(collecting dozens of studies); see also Bennion,

Banning the Bing at 757. “Even those without a

prior history of mental illness” are at serious risk of

developing these precise symptoms. NCCHC, Posi-

tion Statement, at 2 (listing virtually identical symp-

toms).

The same catalogue of psychological disturb-

ances is recorded in studies from several countries.

Smith, Effects of Solitary, at 488-93 (listing dozens of

studies on the prevalence of “lolversensitivity to

stimuli,” a “state of confusion,” “severe problems with

thle] ability to concentrate,” “hallucinations,” “para-

noia,” “violent reactions, and _ self-mutilation”).

German studies from the nineteenth century de

scribed isolated prisoners suffering from delusions,

vivid hallucinations, and psychosis. Sourcebook, at

10. Studies in Northern Ireland and the Soviet

Union likewise have found that isolated prisoners

commonly experienced hallucinations. Lawrence E.

Hinkle & Harold G. Wolff, Communist Interrogation

& Indoctrination of “Enemies of the State,” AMA

Archives of Neurology & Psychiatry, 128 (1956); T.

Shallice, The Ulster Depth Int«iio.tion Techniques

& Their Relation to Sensory Deprivation Research, 1

Cognition 385, 390, 396 (1972). Isolated prisoners in

one Norwegian study, and others, reported “percep-

tual distortions,” hearing voices and frequent violent

fantasies. Smith, Hffects of Solitary, at 491 (citing

Jan Stang et al., Fanger i sikkerhetscelle—en utfor-

Jens. Tidsskrift For Den Norske Legeforening,

1844, 1846 (2003)).

Dr. Stuart Grassian, who has conducted de-

tailed studies of what some consider the “strikingly

unique” set of psychological symptoms caused by

solitary confinement, has concluded that they are

“suggestive of a discreet illness.” Grassian, Psychiat-

ric Effects, at 337. Indeed, some of the symptoms

described above are found in virtually no other

neuropsychiatric illness. See id. Dr. Hans Toch drew

similar conclusions interviewing hundreds of segre-

gated prisoners in New York, reporting that a syn-

drome he called “isolation panic’ was a serious

problem among prisoners in solitary confinement.”

Craig Haney & Mona Lynch, Regulating Prisons of

the Future: A Psychological Analysis of Supermax

and Solitary Confinement, 23 N.Y.U. Rev. of L. &

Soc. Change 477, 518 (1997) (““Haney, Regulating

Prisons’).

Moreover, medical studies spanning decades

consistently report that a troublingly high percent-

age of isolated inmates suffer from some or all of

these characteristic psychological disturbances. The

Istanbul Statement, prepared by the International

Psychological Trauma Symposium, reported that as

many as 90% of isolated prisoners suffer adverse

symptoms ranging from confusion to hallucinations

to psychosis. Istanbul Statement at 2. Others have

noted the “alarming frequency” of even the most

extreme behavior in conditions of solitary confine

ment, like “violent reactions{] and self-mutilation.”

Smith, Effects of Solitary, at 492.

Dr. Grassian’s 1983 study of isolated inmates

at Walpole, Massachusetts, provides one striking

record of the prevalence of psychopathology in soli-

tary confinement. Stuart Grassian, Psychopathologi-

cal Effects of Solitary Confinement, 140 Am. J. Psy-

chiatry 1450, 1453 (1983) (“Grassian, Psychopatho-

logical Effects”). Half of the interviewed inmates

suffered from “difficulties with thinking, concentra-

tion, and memory”—with a quarter reporting “acute

confusional states.” Jd. Two-thirds exhibited “hy-

perresponsivity to external stimuli.” /d. at 1452.

Half had experienced “hallucinations,” such as

“hearing voices,” and “perceptual distortions,” like

seeing “[t]he cell walls start wavering.” /d. Two-

thirds suffered from “massive free-floating anxiety,”

while nearly half experienced obsessive thoughts like

“primitive av«ressive fantasies” and “persecutory

fears.” Id. at | 353.

Dr. Haney consistently reported “extraordinar-

ily high rates of symptoms of psychological trauma”

in his study of segregated prisoners in a supermax

facility at Pelican Bay, California. Haney, Regulat-

ing Prisons, at 524. More than 80% suffered from

ansiet\. confused thinking, obsessive’ thoughts,

‘over-sensitivity to stimuli, irrationsl aneer. and

social withdrawal.” Jd. Over half suffered from

hallucinations and perceptual distortions,” “fear/ed]

impending nervous’ breakdowns,” and _ reported

“violent fantasies” and “emotional flatness.” J/d.

A study by the Correctional Association of

New York (““CANY”) reported similarly high percent-

ages of psychiatric deterioration among inmates

housed in either single-cell or double-cell disciplinary

lockdown. CANY, Mental Health in the House of

Corrections: A Study of Mental Health Care in New

York State Prisons, 1-2 & n.2, 54-59 (2004) (““CANY,

Mental Health”). The researchers recounted: “On

nearly every site visit, and in some lockdown units

more than others, we encountered individuals in

states of extreme desperation: men weeping in their

cells or pacing about like caged animals; men who

had smeared feces on their bodies or lit their cells on

fire; prisoners who cut their own flesh in a form of

self-directed violence known as_ self-mutilation;

inmates who rambled incoherently or expressed

paranoid delusions... .” Jd. at 54.

The psychological harms documented in these

studies are consistent with those experienced by

Respondents. Bajracharya “wel[pt] constantly”

during his confinement, thought he was “going

crazy, reported suicidal thoughts, and “scream|[ed]

to guards that he was going to die.” Compl. 4 241.

Benatta was so distraught over his “inexplicable,

prolonged, and arbitrary confinement” that he twice

attempted to injure — or possibly kill — himself by

repeatedly banging his head into the walls or bars of

his cell. Jd. ¥4] 179-82. On another occasion, he used

a plastic spoon to cut himself. /d. § 206.

The psychological trauma inflicted by solitary

confinement results in extraordinarily high rates of

self-harm, as compared to the general population.

CANY, Mental Health at 58-59 (finding that 40% of

isolated inmates reported self-harm). In a 2014

study of New York City jails, Dr. Homer Venters,

Chief Medical Officer of New York City correctional

health services, reported that “[ajlthough only 7.3%

of admissions included any solitary confinement,

53.3% of acts of self-harm and 45.0% of acts of poten-

tially fatal self-harm occurred within this group.”

Fatos Kaba et al., Solitary Confinement & Risk of

Self-Harm Among Jail Inmates, 104 Am. J. of Pub.

Health 442, 442 (2014). This analysis of 244,699

incarcerations revealed that exposure to solitary

confinement increased the odds of experiencing self-

harm by 6.89 times and potentially fatal self-harm

by 6.27 times. /d.

The suicide rate is disproportionately high

among inmates in solitary confinement as compared

to the general population. Alison Liebling, Prison

Suicide & Prisoner (wvping 26 Crime. & Just. 283,

309 (1999). Recent studies of the United States

prison system report that “of all successful suicides

that occur in a correctional system, approximately

fifty percent involve the 3 to 8 percent of prisoners

who are in some form of isolated confinement at any

given time.” Kupers, /solated Confinement, at 6

(emphasis added); see also Stuart Grassian & Terry

Kupers, The Colorado Study us. the Reality of Su-

permax Confinement, 13 Correctional Mental Health

Rep., 1 (2011); Heriberto G. Sanchez, Suicide Preven-

tion in Administrative Segregation Units: What Is

Missing?, 19 J. of Correctional Health Care 93, 95

(2013).

Other countries likewise report disproportion-

ately high suicide rates among isolated prisoners. A

2002 Danish study found that prisoners in isolation

had a suicide rate twelve times that of the general

population. Smith, Hffects of Solitary, at 498 (citing

Sigurd Benjaminsen & Birgit Erichsen, Se/vmord-

sadfeerd Blandt Indsatte, 16 Copenhagen:

Direktoratet for kriminalforsorgen (2002)). In Fin-

land, one third of suicides took place in isolation.

Matti Joukumaa, Prison suicide in Finland, 1969-

1992, 89 Forensic Sci. Int'l, 167 (1997). In Norway

between 1956 and 1991, three-quarters of all prison

suicides were committed by prisoners in solitary

confinement, which comprised only a quarter of the

prison population. Smith, Hffects of Solitary, at. 499-

500. A German study of Bavarian prisons between

1945 and 1974 concurs that prison suicide most

commonly occurred “in solitary confinement.”

W Spann et al., Suizide in bayrischen Vollzugsan-

stalten, Mimchener medizinische Wochenschrift,

315-16 (1979).

Finally, medical research shows that even af-

ter inmates are eventually released from prolonged

solitary confinement, they may continue to suffer

psychological damage “severe enough to cause near

permanent mental and emotional damage.” Eliza-

beth Vasiliades, Solitary Confinement & Int'l Human

Rights: Why the U.S. Prison System Fails Global

Standards, 21 Am. U. Int'l L. Rev. 71, 76-77 (2005).

Due to long-lasting psychological effects, some pris-

oners held in solitary confinement have serious

difficulty returning to society (or even to the general

prison population). See Ida E. Koch, /solationens

psykiske og sociale falgevirkninger, 60 Manedsskrift

for Praktisk Loegegerning, 382 (1982) (“Koch, /sola-

tionens’)) (reporting that post-isolation prisoners in

Denmark experienced enormous anxiety around

other people, to the degree that some voluntarily

prolonged their isolation).

The “lasting mental health implications” of pa-

thologies developed in prolonged isolation include the

inability to initiate or control behavior or interact

with other people, loss of one’s sense of self and

contro] over emotions, and withdrawal into a fantasy

world. Haney, Mental Health Issues at 138-41.

Because prolonged solitary confinement transforms

inmates’ personalities, they subsequently grapple

with an altered self-image on a daily basis, as well as

overwhelming feelings of inadequacy, “invalidating

stigmas, relived abuse, uncontrollable paranoia or

anxiety, self-imposed seclusion, land] difficulties

with sexual intimacy.” Joane Martel, Solitude &

Cold Storage’ Women's Journeys of Endurance in

Sesreestion, Elizabeth Fry Soc’y of Edmonton, 87

(1999). One Canadian study found that over 50% of

formerly isolated prisoners experienced at least some

of these long-term psychological impairments. /d. at

85°86. “Those who are not blessed with special

personal resiliency and significant social and profes-

sional support needed to recover from such atypical

and traumatic experiences may never return to the

free world and resume normal, healthy, productive

social lives.” Haney, Mental Health Issues at 141.

Similarly, the Respondents in this case “con-

tinue[| to suffer” the “emotional and psychological

effects of [their] detention” long after their release.

Yompl. J 154, 171, 193, 228. Several have trouble

with concentrating, communicating, trusting others,

sleeping, studying, and finding work and some have

lost their homes, businesses, or jobs. Jd. §4{ 171, 193,

213, 228, 244. Respondents now face numerous long-

term and potentially permanent mental health

issues, including post-traumatic stress disorder,

depression, anger, isolation, fear of travel, difficulties

handling open areas or light, and an inability to

enjoy life. Id. J 193, 213, 228, 244. The medical

literature resoundingly confirms that Respondents’

experience of this long-term psychological damage

directly resulted from their prolonged solitary con-

finement.

B. Research Additionally Demon-

strates that Solitary Confinement

Causes Serious Physiological Dam-

age

The deleterious health effects of solitary con-

finement are not only psychological. Experts have

found numerous “corresponding physiological conse-

quences” among inmates subjected to solitary con-

finement. Carnagie Fujio et al., Physicians for

Human Rights, Buried Alive- Solitary Confinement

in the U.S. Detention System, 1-2 (April 2013) @Bur-

ied Alive’).

The physiological damage caused by isolation

has been documented by researchers in numerous

countries since the nineteenth century. /d. For

example, in Denmark in the 1860s, shortly after the

new Vridslosclille Penitentiary opened, “it became

apparent that serious health proklems had arisen”

among prisoners held in isolaiion there. Smith,

Effects of Solitary, at 461-62; Peter Scharff Smith,

Isolation & Mental Illness in Vridsloselille 1859-

1873: A New Perspective on the Breakthrough of the

Modern Penitentiary, Scandinavian J. of Hist., 4-9,

12-13, 15-16, 29 (2004). Even though the prisoners

“were typically described as healthy upon their

entrance to the prison,” “at least a third of the in-

mates reacted to isolation with adverse health ef-

fects,” including a “total lack of energy” and “physical

laxity.” Smith, Affects of Solitary, at 461-62. Ger-

man studies from the nineteenth century likewise

reported severe health effects among isolated prison-

ers. /d. at 466 (recounting a German prisoner’s

description of “how absolute isolation had ‘a very

injurious effect on the body and mind”).

Medical experts have confirmed that physio-

logical harms “can occur after only a few days in

solitary confinement and the health risks rise with

each additional day spent in such conditions.” Ex-

pert Rep. of Juan K. Méndez, at 4] 56, 62, Ashker v.

Governor of the State of Cal., No. 09-cv-5796 (N.D.

tal. Mar. 6, 2015) (“Méndez Experi Report”) (citing

Istanbul Statement). The litany of physiological

symptoms associated with solitary confinement, even

for a short period of time, include insomnia, head-

aches, lethargy, dizziness, heart palpitations, appe-

tite loss, weight loss, severe digestive problems,

diaphoresis (7.e., profuse sweating), back pain, joint

pain, deteriorated vision, shaking, chills, and aggra-

vation of preexisting medical problems. Buried Alive

at 1-2; see also Grassian, Psychopathe/ocical Effects,

at 1450 (reporting that isolated prisoners in the 1983

Walpole study suffered from numerous physical

symptoms, including gastrointestinal, cardiovascu-

lar, and genitourinary problems, migraine head-

aches, and profound fatigue).

The same collection of physiological symptoms

has been reported throughout medical studies in

many countries. Sharon Shalev, a human rights

advocate and criminologist in the United Kingdom,

has found that isolated inmates consistently report

symptoms nearly identical to those recorded by

American researchers. Sourcebook, at 15. Several

Canadian studies of isolated prisoners confirm these

same physiological symptoms, as well as others like

pains in the abdomen, pains and pressure in the

chest, and fainting. See, eg, Michael Jackson,

Prisoners of Isolation: Solitary Confinement in

Canada, 67 (1983). The World Health Organization

(“WHO”) lists a virtually identical group of serious

physiological symptoms resulting from solitary

confinement. Stefan Enggist et al.. WHO Regional

Office for Europe, Prisons & Health, 28 (2014)

(“WHO, Prisons & Health’) (listing “gastrointestinal

and genitourinary problems; diaphoresis; insomnia;

deterioration of eyesight: lethargy, weakness, [and]

profound fatigue; feeling cold, heart palpitations:

migraine headaches: back and other joint pains; poor

appetite, weight loss, diarrhea; tremulousness; [and]

aggravation of preexisting medical problems”).

These characteristic physiological symptoms

are highly prevalent among inmates, including

previously healthy individuals, held in isolation. See

Méndez Expert Report, at 4 56 (“a significant num-

ber of individuals lin isolation] will experience seri-

ous health problems regardless of the specific condi-

tions, regardless of time and place, and regardless of

preexisting personal factors.”) (quoting Istanbul

Statement). Dr. Haney’s 1993 Pelican Bay study, for

example, revealed that more than 80% suffered from

headaches, lethargy, and troubled sleep. Haney,

Mental Health Issues at 133. Over 50% experienced

loss of appetite, dizziness, nightmares, heart palpita-

tions, and perspiring hands. /d. Dr. Haney has

likened the constellation of physical symptoms of

solitary confinement to those of hypertension. /d.

Other studies in the United States and else

where confirm the high prevalence of physiological

damage among prisoners held in long-term solitary

confinement. In Dr. Haney’s 2013 re-interview of

prisoners from the Pelican Bay study, 100% suffered

from headaches, lethargy, troubled sleep, and dizzi-

ness, while over 70% still reported nightmares, heart

palpitations, and perspiring hands. Expert Rep. of

Craig Haney, at 62, 84, Ashker v. Governor of the

State of Cal, No. 09-cv-5796 (N.D. Cal. Mar. 12,

2015). A 2014 North Carolina study similarly re-

ported that, out of 51 prisoners interviewed, 41

suffered headaches; 38 had problems sleeping: 19

had heart palpitations; 24 experienced dizziness: and

25 experienced appetite and weight loss. Mark

Bowers et al., Solitary Confinement as Torture, U. of

N.C. Sch. of L. Immigration/Human Rights Clinic, 69

(2014). A Danish study concluded that nearly a//

isolated prisoners “suffer after days or a few weeks of

nervous symptoms” including “lack of ability to

sleep” and “psychosomatic symptoms.” Smith, Af

fects of Solitary, at 484 (citing Koch, /solationens, at

382).

These physiological symptoms directly result

from the inherent characteristics of solitary confine-

ment. For example, Dr. Kupers observed the nega-

tive effects of the absence of natural light in solitary

confinement in a 2014 study at the Eastern Missis-

sippi Correctional Facility. Expert Rep. of Terry A.

Kupers, E. Miss. Correctional Facility, at 17 (June

16, 2014), https://www.aclu.org/sites/default/files/

assets/expert_report_of_terrry_kupers_with_table_of

_contents.pdf. As Dr. Kupers explained, inmates

held in solitary may lose normal diurnal rhythm—

the steady alteration of day and night—after inade-

quate exposure to natural light. /d. Because diurnal

rhythm orients a person in time and enables funda-

mental biological processes of the body, its loss

causes significant sleep deprivation, with attendant

physiological and psychological deterioration. See

id.5

In this case, the Respondents endured con-

stant artificial lighting and could not even manufac-

ture darkness by covering their faces. Compl. 4 119.

They were deprived of meaningful access to the

outdoors for exercise or natural light. See, e.g., id.

{4 122-27, 178. All of the Respondents were de-

prived of sleep--some for days on end. /d. 44 121,

181, 206. This persistent lack of sleep caused “sub-

stantial physical and emotional distress.” /d. at

#121. It was after a bout of sleepless nights, for

example, that Benatta “snapped” and began banging

his head against the bars of his cell. See id. 4 181-

82, 206. He does not remember “what he was think-

> Sleep deprivation “greatly exacerbates the tendency to

suffer psychiatric breakdown and become suicidall;]”

“creates fatiguel,| and magnifies cognitive problems,

memory deficits, confusion, anxiety, and sluggishness.”

Kupers Expert Report, at 17.

ing, or whether he was trying to kill himself.” 7d.

182.

Many studies also show that sensory depriva-

tion during solitary confinement has corrosive effects

on brain functioning. Sourcebook, at 19-20. Re-

searchers have used _ electroencephalograms

(“EEGs”), which record electrical activity in the

brain, to study isolated prisoners’ brain waves.

Grassian, Psychiatric Effects, at 330-31. These tests

reveal that “even a few days of solitary confinement

will predictably shift the [EEG] pattern toward an

abnormal pattern characteristic of stupor and deliri-

um.” /d. Canadian studies recorded similar results

among isolated prisoners, who exhibited a “slowing

of EEG [and] alpha frequency.” G.D. Scott et al.,

Changes in EEG Alpha Frequency & Evoked Re-

sponse Latency During Solitary Confinement, 79 J.

of Abnormal Psych., 54, 54 (1972). Lethargic condi-

tions have been described by researchers in connec-

tion with “a complete breakdown or disintegration of

the identity of the isolated individual.” Smith,

Effects of Solitary, at 492.

Further, studies strongly suggest that solitary

confinement can fundamentally alter the structure of

the human brain in profound and permanent ways.®

6 While direct studies of the impact of solitary confine

ment on prisoners’ brains have not been possible due to

experimental challenges, evidence from human and

animal studies inform an understanding of the brain

mechanisms that underlie the observed symptoms in

prisoners who have been isolated for protracted periods.

See ACLU, /0tin~ Paper? The Dangerous Overuse of

Solitary Confinement in the United States, 6 (Aug. 2014),

Dr. Huda Akil, a neuroscientist and specialist in the

effects of emotions and stress on brain structure and

function, reports that each key characteristic of

solitary confinement—lack of physical activity,

meaningful interaction with others and the natural

world, and visual! stimulation—‘is by itself sufficient

to change the brain... dramatically, depending on

whether it lasts briefly or is extended,” even just for

days. Kate Allen, Aesearchers Study Effects of

Prolonged Isolation Among Prisoners, The Toronto

Star (Feb. 14, 2014), https://www.thestar.com/

news/world/2014/02/14/researchers_study_effects_of

prolonged_isolation_among_prisoners.html.

Dr. Akil has summarized many neurobiologi-

cal studies that reveal that certain regions of the

brain of people who experience extreme psychological

stress (like those in solitary confinement) literally

diminish in volume because the neural cells become

shriveled. See ACLU, /iiiciing Paper, at 6. Dr.

Akil’s research aligns with decades of experimental

studies on mammals demonstrating the neurological

harms of isolation and sensory deprivation. ACLU,

Briefing Paper, at 6. For example, a study at the

University of California- Berkeley showed that rats in

supermax:style cells had fewer neurological connec-

tions and thinner cerebral cortexes--the brain’s

“grey matter” that controls perception, language,

planning, movement, and social cues. /d.

https://www.aclu.org/sites/default/files/assets/stop_solitar

y_briefing_paper_updated_august_2014.pdf (““ACLU,

Bracting Paper’).

This neurological damage, and other physio-

logical harms inflicted by solitary confinement can be

long-lasting, even permanent. Several studies

conclude that the decline in brain activity that occurs

in solitary confinement, as confirmed by EEGs, can

be irreversible if isolation is prolonged, as it was in

this case. Sourcebook, at 20; see also Grassian,

Psychiatric Effects, at 325. Various international

bodies have stressed that “all forms of solitary con-

finement without appropriate mental or physical

stimulation are likely in the long term to have dam-

aging effects.” European Committee for the Preven-

tion of Torture & Inhuman or Degrading Treatment

or Punishment, Rep. to the Gov't of Denmark on the

visit to Denmark carried out by the CPT, from Jan.

28-Feb. 4, 2002, 20 (Sept. 25, 2002), http://www.cpt.

coe.int/documents/dnk/2002-18-inf-eng.pdf; see also

WHO, Prisons & Health, at 31.

In sum, notwithstanding the pervasive use of

solitary confinement in the United States, the con-

sensus among experts is that solitary confinement,

as imposed on Respondents in this case, inflicts

serious and often long-lasting physiological harm.

Il. International Legal Standards and the

Laws of Other Countries Prohibit the

Imposition of Solitary Confinement Un-

der the Circumstances of This Case

International law has long prohibited the cruel

and inhuman treatment of prisoners, including in

the 1948 United Nations (“U.N.”) Universal Declara-

tion of Human Rights, G.A. Res. 217A(IIIT) (Dec. 10,

1948) (““UDHR”); the 1976 U.N. International Cove-

nant on Civil and Political Rights, G.A. Res.

2200A(XX]) (Mar. 23, 1976) (““ICCPR”); and the 1984

U.N. Convention Against Torture and Other Cruel

and Inhuman or Degrading Treatment or Punish-

ment, G.A. Res. 39/46 (Dec. 10, 1984) (“CAT”).

Moreover, international bodies recognize that soli-

tary confinement qualifies as cruel and inhuman

treatment unless applied in strictly limited circum-

stances and for a strictly limited duration. The

Mandela Rules, as well as the Office of the High

Commissioner for Human Rights “OHCHR”) Manu-

al on the Effective Investigation & Documentation of

Torture & Other Cruel, Inhuman or Degrading

Treatment or Punishment (1999) (“Istanbul Proto-

col”), embody the recent iterations of these well-

settled international law principles. These stand-

ards for the use of solitary confinement likewise are

reflected in the laws of many countries.

Under such standards, the use of solitary con-

finement was impermissible in this case because it

was (i) based on religion or race, (ii) based on the

pretext of immigration violations, and (iii) used as a

measure of first, not last, resort. Moreover, even if

the use of solitary confinement had been justified—

which it was not—the indefinite, prolonged duration

and extreme conditions endured by Respondents

likewise violated international laws.

Since World War II, international conventions

have prohibited cruel and inhuman treatment, as

well as torture. In 1948, the UDHR dictated that

“Injo one shall be subjected to torture or to cruel,

inhuman or degrading treatment.” UDHR art. 5.

The 1976 ICCPR and the CAT—to which the United

States is a party—contain identical prohibitions. See

ICCPR art. 7; CAT art. 2 (“Each State Party shall

take effective legislative, administrative, judicial or

other measures to prevent acts of torture in any

territory under its jurisdiction. No exceptional

circumstances whatsoever, whether a state of war or

a threat of war, internal political instability or any

other public emergency, may be invoked as a justifi-

cation of torture.”).

“Torture” and “cruel and inhuman treatment”

both refer to “the infliction of ‘severe physical or

mental pain or suffering.” Int’l Comm. of Red Cross,

Customary IHL - Rule 90, Torture & Cruel, Inhuman

or Degrading Treatment, 1, https://ihl-

databases.icrc.org/customary-ihl/eng/docs/v1_rul_rul

e90. Torture, however, additionally, is inflicted or

justified for “a specific purpose,” like “obtaining...

information or a confession” or “any reason based on

discrimination of any kind.” Jd. at 2; CAT art. 1.

Both of those purposes motivated the imposition of

solitary confinement in this case. Compl. {4 1, 61,

77.

Human rights bodies applying these interna-

tional laws “have found violations of the prohibition

of inhuman treatment” in cases of solitary confine-

ment, particularly when prolonged and extreme, as

occurred in this case. Customary IHL - Rule 90 at 2.

For example, the Inter-American Court of Human

Rights “IACHR’”) held that “prolonged isolation and

deprivation of communications are in themselves

cruel and inhuman treatment” because they are

“harmful to the psychological and moral integrity of

[a] person” and violate “inherent dignity as a human

being.” Velasquez-Rodriguez v. Honduras, Inter-Am.

Ct. H.R. (ser. C), No. 4, 9 156 (July 29, 1988). The

European Court of Human Rights has found that

“complete sensory isolation, coupled with total social

isolation, can destroy the personality” and thus

“constitutes a form of inhuman treatment” in viola-

tion of international law. J/lascu v. Moldova & Rus-

sia, Application No. 48787/99, Eur. Ct. of H.R.

(2004).

The international prohibition on extreme, pro-

longed solitary confinement was restated most

recently in the U.N.’s 2015 Mandela Rules. These

“minimum standards” for “detention of prisoners”

require that “all prisoners shall be protected from|]

torture and other cruel, inhuman or degrading

treatment or punishment, for which no circumstanc-

es whatsoever may be invoked as a justification.”

Mandela Rules at 1 (emphasis added). The Mandela

Rules squarely prohibit “solitary confinement” as

“amountling| to torture or other cruel, inhuman or

degrading treatment or punishment’—unless im-

posed under strictly limited circumstances. /d. at 43.

Under these international standards, Re-

spondents’ placement in solitary confinement for any

duration was illegal, first because solitary confine-

ment cannot be imposed based on race or religion. In

1969, the International Convention on the Elimina-

tion of All Forms of Racial Discrimination “con-

demnfed] racial discrimination” and guaranteed

“It]he right to equal treatment before the tribunals

and all other organs administering justice.” See G.A.

Res. 2106, Int’] Convention on the Elimination of All

Forms of Racial Discrimination, art. 2(1), 5(a) (Jan.

4, 1969). The U.N.’s prior version of the Standard

Minimum Rules for the Treatment of Prisoners in

place in 2001-2002, required that standards for

incarceration “be applied impartially.”. U.N. Con-

gress on the Prevention of Crime & the Treatment of

Offenders, Standard Minimum Rules tor the Treat-

ment of Prisoners at 6 (May 13, 1977) (“1977 U.N.

Rules”). Thus, “[t]here shall be no discrimination on

grounds of race, .. . religion ... national or social

origin, ... or other status.” /d. This rule applied

equally to “all categories of prisoners, criminal or

civil, untried or convicted, including prisoners sub-

ject to ‘security measures’... .” 1977 U.N. Rules at

4(1). The current Mandela Rules likewise dictate

that “[t]here shall be no discrimination” in the appli-

cation of prison standards “on the grounds of race, . .

. religion, .. . [or] national or social origin.” Mandela

Rules at 2.

Yonsistent with this international legal stand-

ard, many other countries prohibit the discriminato-

ry treatment of prisoners based on their religion or

race. See, e.g., Law No. 24.660, July 8, 1996 (Ley de

Eyecucion de la Pena Privativa de la Libertad n°

24.660), Argentina (requiring that rules governing

prison sentences be applied without discrimination

based on race, religion, or other circumstances);

Fundamental Law of Hungary (2011), art. XV(2)

(guaranteeing fundamental rights, including to

Hungarian prisoners, without discrimination based

on race or religion); Canadian Charter of Rights &

Freedoms, Part I of the Constitution Act, 1982 § 15

(providing equal protection and banning religious

discrimination); Racial Discrimination Act 1975

(CTH) s 10, Australia (providing people of any “race,

colour or national or ethnic origin” the right to

equality before the law); Jones v Scully (2002) 120

FCR 243, [111-113] (holding that ethno-religious

groups, such as Muslims, constitute protected groups

under the Racial Discrimination Act); Naen v Minis-

ter for Immigration & Multicultural & Indigenous

Affairs |2003] FCA 216, [72] (same).

Yet, here, the Respondents were placed in iso-

lated confinement precisely because of their religion

and faced religious discrimination throughout deten-

tion. Respondents were routinely physically and

verbally accosted for being Muslim, and were con-

sistently deprived of the ability to observe their faith.

See Compl. 44 66, 103, 109, 117, 131-39. For exam-

ple, the Respondents were denied access to the

Koran, religiously appropriate food, and the means

to maintain their daily prayer requirements. /d.

4] 128, 132-39, 261. Indeed, the Respondents were

often punished for praying. For instance, one re-

ceived an incident report for refusing to stand up for

count during prayer, while others were unable to

obtain razors or hygienic supplies (which guards

purposely passed out during prayer times). /d.

4/4] 135, 138.

International law further articulates that dis-

criminatory treatment will not be excused even in a

time of national emergency, like September 11th.

The ICCPR, which prohibits inhuman treatment,

provides that “[iJn time of public emergency” a state

may “derogatele| [its] obligations under the present

Covenant to the extent strictly required by the

exigencies of the situation, provided that such

measures .. . do not involve discrimination solely on

the ground of race, . . . religion or social origin.”’

ICCPR art. 4(1) (emphasis added); accord U.N.

Human Rights Comm., General Comment No. 29,

States of Emergency (Article 4) § 8 U.N. Doc. No.

CCPR/C/21/Rev. 1/Add.11 (Aug. 31, 2001).

Additionally, while the government in this

case used the pretext of immigration violations to

detain Respondents, international legal standards

forbid the imposition of solitary confinement on that

basis as well. “|I|mmigration detention, and condi-

tions and treatment of detained migrants, [must]

comply with international human rights law.” U.N.

OHCHR Opening Remarks on “Human Rights of

Migrants in Detention Centres,” 12th Sess., H.R.

Council (Sept. 19, 2009). Under international hu-

man rights law, “[administrative] detention of mi-

grants on the grounds of their irregular status

should under no circumstances be of a punitive

nature.” Francois Crépeau, Rep. of Special Rappor-

teur on Human Rights of Migrants 4 31, U.N. Doc.

A/HRC/20/24 (Apr. 2, 2012). Thus, immigrants in

detention “should not be subject” to “highly restricted

movement, lack of outdoor recreation and lack of

contact visitation”’—all of which occurred in the

extreme solitary confinement at issue here. /d. The

U.N.’s principles on arbitrary detention similarly

require that a detained immigrant “must have the

possibility, while in custody, of communicating with

the outside world” and “must be informed of . . . any

7 In accordance with this international principle, China

forbids discrimination based on religion or territory even

in cases involving terrorism. Anti-Terrorism Law of

People’s Republic of China, art. 6 (2016).

possibility of his or her being held incommunicado,

as well as of the guarantees accompanying such a

measure.” OHCHR, Rep. of the Working Grp. on

Arbitrary Detention, Civ. & Pol. Rights, Annex II,

Principles 1-5, U.N. Doc. E/CN.4/2000/4 (Dec. 28,

1999). The placement of detained immigrants into

solitary confinement violates these principles.

The OHCHR recently reiterated that interna-

tional law prohibits prolonged solitary confinement

for immigrant detainees, even if based on suspicion

of terrorism. “|T|he use of ‘administrative detention’

under public security legislation [or] migration

laws... resulting in [the] deprivation of liberty for

unlimited time or for very long periods without

effective judicial oversight, as a means to detain

persons suspected of involvement in terrorism or

other crimes, is not compatible with international

human rights law.” OHCHR, Compilation of Delib-

erations of Working Grp. On Arbitrary Detention,

Delib. No. 9, 4 73, U.N. Doc. No. A/HRC/22/44 (Dec.

24, 2012). The OHCHR observed that such “admin-

istrative detention is particularly worrying as _ it

8 Consistent with these international legal principles,

Argentina forbids the use of solitary confinement as

punishment for violations of immigration laws. Law No.

25.871, Jan. 20, 2004 (Ley de Ejecucién de la Pena Priva-

tiva de la Libertad N° 25.8714), art. 82 & L. N° 25.871,

art. 70, Argentina. Recognizing that immigration deten-

tion should not be punitive, England and Wales prohibit

“special accommodation” (i.e., solitary confinement) for

punishment, except as a “temporarly]” measure for as

long as a detainee is “refractory or violent.” The Deten-

tion Centre Rules, 2001 SI 2001/238, Rule 42(1), England

and Wales (“Detention Centre Rules”).

increases the likelihood of solitary confinement, acts

of torture and other forms of ill-treatment”—

precisely what occurred in this case.? Z/d.

Additionally, the imposition of solitary con-

finement was unlawful in this case because it was

used as a measure of first resort. International law

requires that solitary confinement be used only “as a

last resort.” Mandela Rules at 45(1). In other words,

solitary confinement “shall not be imposed by virtue

of a prisoner’s sentence” in the first instance. /d.; see

also G.A. Res. 45/111, Principle 7 (Dec. 14, 1990).

Instead, international law contemplates the limited

use of “{[p]unishment by close confinement” solely as

a “disciplinjary|” measure for prisoners who break

prison rules. 1977 U.N. Rules at 32(1).

Many countries apply this same “last resort”

principle by refusing to impose solitary confinement

as part of an initial sentence and permitting it solely

based on some additional, enumerated factor arising

after the individual is detained. See, e.g., Detention

‘entre Rules, at 40, 42 (imposing isolation only to

control violent behavior or in interest of security or

safety); Prison Act of 16 March 1976, amended by

* Indeed, the Istanbul Protocol specifically includes among

its “list of torture methods” solitary confinement and the

accompanying conditions that were imposed in this case,

such as “a small or overcrowded cell..., exposure to

extremes of temperature, denial of privacy...

(djeprivation of normal sensory stimulation ..., abuse of

physiological needs, restriction of sleep, food, water, toilet

facilities, bathing, motor activities, medical care, social

contacts .. . [and] loss of contact with the outside world.”

Istanbul Protocol 4 145(m)-(n) (2004).

art. 7, Act of 25.04.2013 §§ 88-89, Germany (allowing

isolation based on additional factors such as prison:

er’s behavior, mental state, danger of escape or

violent attack, or danger of suicide or self-harm);

Australian Human Rights Commission, Auman

rights standards for immigration detention, § 3.7

(2013) (Australian Human Rights Standards”)

(same); Ordinance for Treatment of Detainees, art.

18 (981), Japan (same); Imprisonment Act

(767/2005), “Vankeuslaki” (“Finland Imprisonment

Act”) Ch. 18, Finland (permitting isolation only to

prevent harm to prisoner or others, escape, drug use,

drug-related offenses, or similar situations); Prison

Rules 2007 (SI252/2007), Rules 62-64, Ireland (bas-

ing isolation on factors such as whether individual is

at “imminent” risk of harming himself); Lrish Prison

Act (2007), part 3 (allowing isolation for violating

prison disciplinary code); Anhalteordnung Detention

Regulation [BGBI. II Nr.] No. 128/1999, as amended,

BGBI. II Nr. 439/2005, § 5, Austria (basing solitary

confinement on factors such as violence against other

inmates, risk of infection, or disruption); Ogiamien v.

Ontario, 2016 ONSC 3080 (Canada); &. v. Hamm,

2016 ABQB 440 (Canada) (finding segregation illegal

when lacking rational explanation or where peniten-

tiary did not establish absence of viable alternative):

Bacon v. Surrey Pretrial Services Centre, 2010 BCSC

805 (Canada) (same); Grenier v. R., 2004 FC 132

(same); Cireulaire du 14 avril 2011 relative au

placement a lisolement des personnes détenues

NOR: JUSK1140023C, France (allowing isolation

only when impossible to otherwise protect detainees

or facility); Australian Human Rights Standards

§ 3.7 (providing for isolation as a last resort and

where necessary to avoid scrious and imminent

threat of self-harm, injury, or destruction of proper-

ty).

Furthermore, the immediate use of isolation

was particularly troubling in this case because

Respondents had not been convicted or even charged

with a crime. _ International law recognizes that

“lsjolitary confinement of unconvicted individuals .. .

is potentially harmful” because it can “coerce the

detainees and force them to self-incriminate or to

provide any type of information.” Inter-American

Commission on Human Rights, Rep. on the Use of

Pretrial Detention in the Americas, Doc. 46/13,

OEA/Ser.L/V/ILL., 4 280, (2013); see also Méndez 2011

Report 4 73 (“When solitary confinement is used

intentionally during pretrial detention as a _ tech-

nique for the purpose of obtaining information or a

confession, it amounts to torture ... or to cruel,

inhuman, or degrading treatment”). !°

Even if the use of solitary confinement could

have been justified in this case, its duration was

unjustifiable and violated international legal stand-

ards. International law prohibits “[i]ndefinite” and

‘ See also Essex paper 3- Initial guidance on the interpre-

tation & implementation of the Nelson Mandela Rules,

Ch. 5. Restrictions, discipline & sanctions, U. of Essex-

Human Rights Centre, at 13 (Apr. 2016) (solitary con-

finement may not be used “intentionally for purposes such

as punishment, intimidation, coercion or obtaining infor-

mation or a confession, or for any reason based on dis-

crimination” (quoting Juan E. Méndez, Interim Report of

the Special Rapporteur on Torture & Other Cruel, Inhu-

man or Degrading Treatment or Punishment, 4 60, U.N.

Doc. A/68/295 (Oct. 7, 2013))).

“|p}rolonged” solitary confinement as “amount{[ing] to

torture or other cruel, inhuman, or degrading treat-

ment or punishment.” Mandela Rules at 43. As

explained by the Special Rapporteur, “[t]he feeling of

uncertainty when not informed of the length of

solitary confinement exacerbates the pain and suffer-

ing of the individuals who are subjected to it.”

Méndez 2011 Report 4 59. And, “the longer the

duration of solitary confinement .. . the greater the

risk of serious and irreparable harm.” Id. 4 58.

International law defines prolonged solitary con-

finement as “a time period in excess of 15 consecutive

days,” a limit far exceeded in this case. Mandela

Rules at 44.1!

The extreme isolation and sensory deprivation

imposed on Respondents likewise violated interna-

tional standards for the conditions of solitary con-

finement. International law forbids placement in a

'' Similarly recognizing the pain and suffering inflicted by

prolonged solitary confinement, many countries limit its

duration to relatively short time periods. See, e.g.

Detention Centre Rules, at Rule 40(3) (capping isolation

for immigration detainees at 24 hours, with extension to

three days, upon authorization from Secretary of State);

Finland Imprisonment Act, Ch. 15 § 8 (10-day cap, after

which prisoner cannot be isolated again for seven days):

Correctional Services Act 1982 (SA) s 36(3), Australia (30-

day cap); Prisons Act 1981 (WA) s 43(1) (same); Corrective

Services Act 2006 (QLD) s 53(2) (same); Corrections

Management Act 2007 (ACT) s 90(8) (same); Law of the

People’s Republic of China on Administration of Embar-

kation and Disembarkation, arts. 59-60 (2013) (30-day

cap, with extension to a maximum of 60 days upon addi-

tional approval).

“constantly lit cell,” as occurred in this case, as

“inhuman” treatment. Mandela Rules at 43(1).

Moreover, under the 1977 U.N. Rules in place in

2001-2002, prisoners must be allowed regular com-

munication with family and “reasonable facilities to

communicate with the diplomatic and consular

representatives of [their] State.” 1977 U.N. Rules at

37-38(1); Mandela Rules at 62. “{U]ntried prison-

er[s]” must be allowed “visits from [] legal advis-

er[s].". 1977 U.N. Rules at 93; Mandela Rules at

6l(a).'2 Thus, the complete social isolation and

communications blackout used in this case likewise

was in violation of international law.

CONCLUSION

For the foregoing reasons, and the reasons set

forth in Respondents’ brief and in the other amicus

briefs filed in support of Respondents, Amici

respectfully submit that this Court affirm the Second

Circuit’s decision and permit Respondents to litigate

their constitutional challenges to the punitive

treatment they suffered in solitary confinement.

'2 Other countries similarly regulate the conditions of

solitary confinement to moderate the degree of social

isolation and sensory deprivation. See, eg., Finland

Imprisonment Act, Ch. 15 § 8 (permitting inmates in

isolation to keep their possessions and receive visitors);

Id. at Ch. 11, § 3 (guaranteeing Finnish prisoners the

right to religious observance); Corrective Services Regula-

tion 2006 (QLD) § 5, Australia (guaranteeing isolated

prisoners access to personal items, appropriate clothing,

and reticulated water, and exercise in fresh air).

December 22, 2016

Respectfully submitted,

ERIC ORDWAY

Counsel of Record

KAMI LIZARRAGA

GLENDA BLEIBERG

ELIZABETH VELEZ

JESSICA DJILANI

JAY MINGA

ALEXANDRIA SWETTE

NIGAR SHAIKH

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8000

eric.ordway@weil.com

Counsel for Amici Curiae

APPIENDIX

APPENDIX A

Amici curiae are the following nineteen indi-

viduals:

3, Huda Akil, Ph.D., is a Gardner Quarton

Distinguished University Professor of Neuroscience

and Psychiatry and Co-Director and Senior Research

Professor of the Molecular and Behavioral Neurosci-

ence Institute at the University of Michigan. Re-

search in Dr. Akil’s laboratory is focused on under-

standing the neurobiology of emotions, including

pain, anxiety, and depression. Dr. Akil also served as

a past President of the Society for Neuroscience, the

largest neuroscience organization in the world, and

has been elected a member of the National Academy

of Sciences.

2. Scott Allen, M.D., F.A.C.P., is a Profes-

sor of Medicine and Vice Chair of the Clinical Divi-

sion at the University of California, Riverside. He

also is the co-founder and co-director of the Center

for Prisoner Health and Human Rights at The Miri-

am Hospital. He serves as medical advisor to Physi-

cians for Human Rights (“PHR”) on its work to stop

torture and was lead medical author of PHR’s re-

ports “Experiments in Torture,” “Aiding Torture,”

and “Leave No Marks.” He served seven years as a

full-time physician for the Rhode Island Department

of Corrections, acting as the department’s medical

program supervisor between 2001 and 2004.

3. Bradley Brockmann, Esq. is the Execu-

tive Director for the Center for Prisoner Health and

Human Rights at The Miriam Hospital. The Center

is affiliated with Brown University and raises

awareness at the national and state level about

healthcare issues and other justice-involved popula-

tions. He designs and teaches courses focused on

Prisoner Health at the School of Public Health at

Brown University. Mr. Brockman also worked as a

civil rights attorney with Prisoners’ Legal Services of

Massachusetts.

4. Robert L. Cohen, M.D., is a clinical

instructor at the New York University School of

Medicine. He has been appointed numerous times by

federal courts and the Department of Justice to

monitor health care in U.S. prisons. Dr. Cohen’s

recent presentations address the impact of solitary

confinement on prisoner health, the health care of

detained immigrants, and protection of the civil

rights of detained persons.

5. Stefan Enggist is a Senior Project

Manager in Switzerland’s Federal Office of Public

Health. Previously, he was the Technical Officer of

Health in Prisons at the World Health Organiza-

tion’s Regional Office for Europe in Copenhagen,

Denmark.

6. Joe Goldenson, M.D., is a physician who

served as the Director and Medical Director for Jail

Health Services for the San Francisco Department of

Public Health for twenty-eight years. Dr. Goldenson

also served as Assistant Clinical Professor at the

University of California, San Francisco from 1980 to

2015, and has worked extensively as a correctional

health medical expert and court monitor of inmate

medical care in U.S. jails. He also served as a medi-

cal expert and monitor retained by federal district

courts in various cases. Mr. Goldenson is the Ameri-

can Public Health Association’s representative to the

Board of the National Commission on Correctional

Health Care (““NCCHC”).

A Stuart Grassian, M.D., is a psychiatrist

who taught at Harvard Medical School for almost

thirty years. He has numerous publications and

extensive experience evaluating the psychiatric

effects of stringent conditions of confinement, includ-

ing the psychiatric syndrome resulting from depriva-

tion of social, perceptual, and occupational stimula-

tion in solitary confinement.

8. Craig Haney, Ph.D., is a social psy-

chologist and Distinguished Professor of Psychology

at the University of California, Santa Cruz (“UCSC”).

Dr. Haney is also the Director of the program in

Legal Studies at UCSC and the UCSC Presidential

Chair. Dr. Haney is noted for his numerous publica-

tions, including five books, and his work on the study

of the psychological impact of solitary confinement

and prison isolation. Dr. Haney has served as an

expert witness in several federal court cases related

to the prison environment and punishment, and he

has testified before the Subcommittee on the Consti-

tution, Civil Rights and Human Rights of the U.S.

Senate Judiciary Committee.

9, Terry A. Kupers, M.D., is a Professor at

the Wright Institute and psychiatrist with a back-

ground in psychoanalytic psychotherapy, forensics

and social and community psychiatry. He has pro-

vided expert testimony in several large class action

litigations concerning jail and prison conditions, and

he provides consultation and staff training on the

psychological effects of prison conditions, including

solitary confinement. Mr. Kupers has published

several books and articles and is a consultant to

Human Rights Watch.

10. Shane O’Mara is Professor of Experi-

mental Brain Research at Trinity College, Dublin

(Personal Chair), and Principal Investigator and

Director of the Trinity College Institute of Neurosci-

ence. He has published more than 110 peer-reviewed

papers, including on brain systems affected by stress,

anxiety, depression, and motivation, and wrote the

book Why Torture Doesn't Work: The Neuroscience

of Interrogation.

Ll. Hernan Reyes, M.D., is a Senior Re-

search Fellow at the Human Rights Center at the

University of California, Berkeley. He is also the

former medical coordinator for Health in Prisons for

the International Committee of the Red Cross

(“ICRC”), a post he occupied from 1984-2012. Dr.

Reyes documented prison health, as well as ill-

treatment, human rights violations, and torture for

the ICRC in more than 45 countries around the

world during his 28 years with ICRC. Since 1991, he

has been medical Observer for the ICRC to the World

Medical Association (“WMA”) and its Ethics Commit-

tee, working closely with the WMA on many ethical

issues of concern in prisons.

12. Josiah D. Rich, M.D., M.P.H., is a

Professor of Medicine and Epidemiology at the

Warren Alpert Medical School of Brown University.

He also is a practicing Infectious Disease Specialist

at the Rhode Island Department of Corrections. Dr.

Rich has written close to 190 peer-reviewed publica-

tions, predominantly concerning the overlap between

infectious diseases, addictions, and incarceration.

He is the Director and co-founder of the Center for

Prisoner Health and Human Rights and also is a Co-

Founder of the Centers for AIDS Research’s nation-

wide initiative on collaboration in HIV in corrections.

13. Barry H. Roth, M.D. is a forensic psy-

chiatrist who has performed forensic torture survivor

evaluations for twenty years. Mr. Roth is a member

of Physicians for Human Rights; Program in Psychi-

atry and Law, Harvard Medical School; World Psy-

chiatric Association Section on Psychological Conse-

quences of Torture & Persecution; and the Interna-

tional Forum of Teachers of the UNESCO Chair in

Bioethics. Mr. Roth is a Distinguished Life Fellow of

the American Psychiatric Association and Massachu-

setts Psychiatric Society. He also is an instructor of

the Harvard Law School Trial Advocacy Workshop

and former Harvard Medical School instructor.

14. Pau Perez-Sales, M.D., a psychiatrist, is

the Chair of the Section on Psychological Conse-

quences of Persecution and Torture of the World

Psychiatric Association. He is the founder of a

number of groups dedicated to addressing the medi-

cal care of victims of torture and has served as an

independent consultant and forensic expert in na-

tional and international courts for victims of abuse

and torture. Dr. Perez-Sales was also the founding

member and president of the Human Rights Section

of the Spanish Association of Neuropsychiatry and is

an elected member of the Board of the International

Society for Health and Human Rights (“ISHHR”) and

the Section on Torture of the World Psychiatric

Association (“WPA”).

15. Peter Scharff Smith, Ph.D., is an Asso-

ciate Professor in the Department of Criminology

and Sociology of Law at the University of Oslo. He

also is a Professor in Criminology in the Department

of Sociology and Social Work at Aalborg University.

He has numerous publications concerning the use

and effects of solitary confinement on prison in-

mates.

16. Pablo Stewart, M.D., is a Clinical Pro-

fessor of Psychiatry at the University of California,

San Francisco School of Medicine. He has over thirty

years of experience working in the criminal justice

system, including serving for ten years as a federal-

court-appointed psychiatric expert on the effects of

solitary confinement on the mental health of in-

mates.

17. Nora Sveaass, Ph.D., is a psychologist

and Associate Professor at the Department of Psy-

chology at the University of Oslo. Her research,

publications, and _ professional experience have

focused on human rights violations, the psychological

consequences of torture and violence, and the treat-

ment and rehabilitation of victims of torture and

violence. Dr. Sveaass served two terms on the United

Nations Committee against Torture from 2005 to

2013 and is currently a member of the United Na-

tions Subcommittee for the Prevention of Torture.

18. Homer DD. Venters, M.D., is the Chief

Medical Officer and Assistant Vice President of

Correctional Health Services for New York City

Health and Hospitals Corporation. He also is a

faculty member at the New York University Center

for Survivors of Torture and co-chairs a federal

health advisory group on medical care for detainees.

Dr. Venters has written and testified before Con-

gress on the health risks of incarceration and the

intersection between correctional health and human

rights.

19. Brie Williams, M.D., is an Associate

Professor of Medicine in the Division of Geriatrics at

the University of California, San Francisco. She also

is the Founding Director of the University of Califor-

nia Criminal Justice & Health Consortium, and the

Director of the Criminal Justice and Health Project

at the University of California, San Francisco. Dr.

Williams has published work calling for a broader

inclusion of prisoners in national health datasets and

in health research funded by the National Institutes

of Health, and for more scientific development of

compassionate release policies.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.