Carolyn Paul | When Does the Length of Solitary Confinement Tip the Scales of Liberty?

INTRODUCTION

The Fourteenth Amendment’s Due Process Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of the law.” A caveat to this right is that incarcerated individuals are not guaranteed its full scope. Because of their limited liberty rights, solitary confinement has been successfully implemented in a number of both state and federal prisons throughout the United States. In the summer of 2021, more than 6,000 inmates had been in solitary confinement for over a year. As of this week, over 10,000 inmates in federal prison alone are being held in solitary confinement.

In a 2019 report from the ACLU of Louisiana, Solitary Watch, and the Jesuit Social Research Institute, 700 people in solitary confinement were surveyed to determine the emotional and mental effects of solitary. The survey responses were striking. One respondent stated, “I have personally witnessed one man take his life, another tried to by running the length of the tier and smashing his head into the front bars.” The devastating consequences of prolonged solitary confinement have led the United Nations to consider solitary confinement past 15 days to be a form of torture.

Despite the obvious psychological and physical consequences of solitary confinement, some courts have denied the constitutional claims of people who have lived in solitary for years. For a court to entertain a due process claim for solitary confinement, the plaintiff must first demonstrate that they were deprived of a liberty interest. Escobarrivera v. Whitaker, 2022 WL 17352178 1, 3 (5th Cir. 2022). If the plaintiff can establish such, the court will look at whether the procedures related to the deprivation were “constitutionally sufficient.” Id. To determine whether a liberty interest has been invoked, the court looks at whether their continued custody is an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). This is established by the nature and duration of their confinement. Id. at 4. Confinement in less severe conditions may still give rise to a liberty interest if the confinement’s duration poses an atypical hardship. Id.

The Supreme Court has noted that the circuit courts have not reached a consensus on the baseline from which to measure what duration of time in solitary is considered “atypical” and “significant.” Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). Some question whether a baseline duration requirement should be applied in the first place. Thus, the current circuit court split lies in whether there should be a minimum length for the duration of confinement to be considered an atypical hardship giving rise to a liberty interest.

ISSUE

What should the minimum duration requirement be for an inmate’s solitary confinement to be considered a violation of the Constitution’s Due Process Clause?

THE SPLIT

Fifth Circuit

In Escobarrivera, an incarcerated individual at the Louisiana State Penitentiary challenged the constitutionality of his ongoing solitary confinement. 2022 WL 17352178 at 1. The individual, Escobarrivera, has been in solitary confinement since 2017, totaling 4.5 years at the time of the circuit court’s decision. Id. He alleged that his continued solitary confinement violated his Fourteenth Amendment due process rights. Id. The district court dismissed his claim for due process and granted the defendants’ motion for summary judgment. Id.

The Fifth Circuit upheld the district court’s ruling on the plaintiff’s due process claim, asserting that Escobarrivera’s 4.5 years in solitary confinement was insufficient to establish a liberty interest for a claim. Id. at 4. As stated above, a liberty interest is established when the plaintiff’s custodial status “demonstrates extraordinary circumstances, or, in other words, an atypical and significant hardship.” Id. Here, the court determined that the conditions of Escobarrivera’s confinement did not amount to an atypical hardship. Id. The issue then became whether his length of confinement alone gave rise to a liberty interest. The Court weighed the decision in Wilkerson v. Goodwin, in which it purportedly found 2.5 years to be an insufficient length of time, 774 F.3d 845, 855 (5th. Cir. 2014), against the decision in Shoats v. Horn, 213 F.3d 140, 144 (3rd. Cir. 2000), in which the Third Circuit found 8 years to be a sufficient length of time to establish a liberty interest. Because Escobarrivera’s length of confinement was closer to 2.5 years, his confinement was not atypical and, thus, did not give rise to a liberty interest. Escobarrivera, 2022 WL 17352178 at 5.

Judge Jennifer Walker Elrod, concurring in part and dissenting in part, argued that the majority misinterpreted the fifth circuit decision in Wilkerson to mean that 2.5 years is the minimum threshold duration requirement for a liberty interest to exist. Wilkerson at 8. Instead, Judge Elrod argues that the Court in Wilkerson simply noted that previous courts had not found 2.5 years sufficient to emphasize the severity of the plaintiff’s 39 years in solitary confinement. Id. The court did not intend for 2.5 years to become an established duration minimum requirement that rejected a more holistic approach to determining the atypicality of a person’s confinement. Id.

7th Circuit

In Kervin v. Barnes, an inmate at an Indiana prison brought a due process claim for serving 30 days in solitary confinement as a punishment for defying guard orders to meet with his attorney. 787 F.3d 833, 837 (7th Cir. 2015). The district court dismissed his due process claim, ruling that his time in segregation and loss of privileges were not severe enough to deprive him of a liberty protected by the Due Process Clause of the Fourteenth Amendment. Id. at 835. The district court further asserted that inmates must spend at least 6 months in solitary before they can “complain” of being deprived of their liberty interest. Id. at 836.

On appeal, the Seventh Circuit upheld the district court’s decision but rejected some of the court’s reasoning. Id. Namely, the Court dismissed 6 months as an appropriate marker for establishing a liberty interest. Id. Pointing to examples of other circuit court decisions that found durations of 77 days, 75 days, and 90 days in solitary to be sufficient, the Court argued that “a considerably shorter period of segregation may, depending on the conditions of confinement and on any additional punishments, establish a violation.” Id. For instance, it would be atypical for an elderly inmate who committed a non-violent offense to be placed in solitary confinement for a minor infraction. Id. Such an instance would not require a 6-month stay in solitary for it to give rise to a liberty interest.

LOOKING FORWARD

The court in Kervin urged future courts and prison officials to be alert to the psychological and physical consequences of solitary confinement. Id. at 837. The increasing social condemnation of solitary confinement echoes this advice. Courts will likely follow suit and gradually place less emphasis on the duration of an inmate’s solitary confinement. Nonetheless, it is unlikely that the courts will ever consider less than two months in solitary sufficient, regardless of the court’s makeup.