Death Row and Solitary Confinement – an Unconstitutional Practice

On November 12, 2013, Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia held that automatic and permanent placement of death row prisoners in solitary confinement violates the U.S. Constitution in Prieto v. Clark. In the United States, a majority of prisoners on death row will serve years in solitary confinement, awaiting execution.  Although international human rights bodies have recognized that solitary confinement can constitute a form of torture; Prieto is one of a few U.S. cases that highlight the inhuman aspects of prolonged solitary confinement.

In Virginia, capital offenders are automatically placed in solitary confinement upon sentencing, without the possibility of subsequent classification review.  Death row prisoners are isolated in their cells for 23 hours a day, the lights are always on, and they are only allowed five hours of recreation a week.  The judge described these conditions as “dehumanizing.”

In her holding, Judge Brinkema commented that while not all incidences of solitary confinement are unconstitutional, conditions that constitute “atypical and significant, hardship” without the potential for reclassification violate the Due Process Clause of the Fourteenth Amendment.  The plaintiff’s confinement, in this case, was held to be such a hardship. Judge Brinkema noted that the prisoner’s solitary confinement furthered few, if any, penological interests.

Solitary confinement, in combination with the mental torment of a pending execution, causes severe mental suffering.  The UN Special Rapporteur on Torture recently concluded that solitary confinement can amount to torture because of the devastating and irreversible psychological effects it has on detainees.  Likewise, the Human Rights Committee concluded that prolonged solitary confinement can amount to torture or other cruel, inhuman or degrading treatment. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment explains that torture includes “the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses.”

Although Prieto does not cite this international authority, the court’s conclusions are consistent with the growing consensus that solitary confinement is unnecessarily cruel and inhumane.  Judge Brinkema’s holding, which explicitly recognizes the cruel and inhuman aspects of solitary confinement, represents a step in the right direction.