Resnik, Judith, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola, and Meredith Wheeler. “Punishment in Prison: Constituting the “Normal” and the “Atypical” in Solitary and Other Forms of Confinement.” Northwestern University Law Review 115, no. 1 (2020), 45-158.
This journal article published in the Northwestern University Law Review reflects on the federal judiciary’s acceptance of solitary confinement as a “normal” component of prisons. This analysis stems from a U.S. Supreme Court decision which held that for an incarcerated person to state a Fourteenth Amendment claim that their liberty has been infringed upon, they must prove that a practice was “atypical” and imposed a “significant hardship.” Even as other inhumane prison conditions were deemed unconstitutional, court decisions continuously upheld the practice of solitary confinement as normal and thus shielded it from judicial review.
The article presents a thorough analysis of data collected from more than 9,000 lower court decisions between 1995 and 2019, in which judges determine whether solitary confinement is sufficiently “atypical” and imposes “significant hardship.” These data show the variation between court circuits in the length of stays in solitary confinement that rulings deem “atypical.” This observation informs the article’s argument that judges and courts have significant roles in determining how solitary confinement is used in prisons and are thus key players in efforts to curtail its use.
Keywords: solitary confinement, restrictive housing, administration segregation, supreme court, law, court decision, judicial review, 14th Amendment.