The Supreme Court, solitary confinement, and the prohibition of cruel and unusual punishment

The relationship between solitary confinement and cruel and unusual punishment dates back to the mid-1880s. However, it is important to note that the Supreme Court was more concerned with the procedural application of this approach, rather than any legitimate consideration on the practice itself. The relationship between solitary confinement and the Court, for the most part, remained within this procedural context, with the exception of a few exceptional examples. The current attitude of the Court attitude to more focused on the specific structure of solitary confinement and the specific harms it imposes on those so confined. A similar attitude has not yet emerged concerning supermax confinement. Given that most sides in this debate seem to agree concerning the psychological harm caused by solitary confinement, deliberate indifference, a major feature of the Court’s attitude concerning the unconstitutionality of this practice, can no longer be denied.

The developmental history of solitary and supermax confinement: toward a phenomenology of the state of exception

The phenomenology of solitary and supermax confinement reflects what Giorgio Agamben has defined as the state of exception. The state of exception is defined as the blurring of the legal and political order, which constructs a zone of indifference for those forced to endure this situation. This notion of the state of exception can be applied to the zone of indifference created by the Supreme Court, which seems unwilling to outlaw this harmful practice relative to 8th Amendment protections prohibiting cruel and unusual punishment and the political order which is all too inclined to continue use strategy. One of the central aspects of this “ecology of harm”, is the way in which the very structures of this type of confinement, helps to invite and legitimize abusive attitudes and behaviors in penitentiary staff.

Some closing reflections

Solitary confinement evokes a manner of human torture that does not need to include the actual presence of another individual to inflict this physical or psychological harm. Its sole intent is to inflict harm and wear down the individual so confined. First it takes away the world and or time, then it takes the human self as well.

A very brief history of solitary confinement and the supermax penitentiary

Initially, solitary confinement was introduced as a reform by which to correct the inhumane conditions of existing correctional institutions of the late 1700s and the early 1800s. Though these facilities were able to separate the criminal element from law abiding society, it was much less effective in addressing the various medical, physical and psychological harms generally inflicted on these incarcerated populations. As a rehabilitative strategy, solitary confinement was believed to provide the necessary degree of social isolation, by which to evoke a true contrition for one’s social sins. However, by the late 1800s, the support for the continued rehabilitative utility of these practices was quickly falling out of favour. Since the early 1900s, solitary confinement has been exclusively employed as a strategy of rationalized retribution; the advent of supermax confinement has merely expanded this punitive strategy and applied to the functional rationale of entire institutions.

From the other side of the door: the lived experience of solitary confinement

The experience of solitary confinement imposes a variety of potential psychological harms for those placed in this type of isolating situation. At the core of this experience is the imposition of an alternative world that fundamentally disrupts the very ground of human existence. Though the specific meaning of this type of encounter is in some ways different for every individual, what remains similar across this experience is the way in which it denies the relational ontology of human being.

The experience of solitary confinement: some beginning reflections

Anyone working within the context of the penitentiary environment will need to confront the reality of solitary confinement. Though it has been documented to cause any number of psychological harms that fact has not been useful in discontinuing this practice. Once confined in this type of isolating environment the most basic aspects of embodied existence are disrupted. All normal types of bodily comportment are placed into question, which leaves the individual with no world to actually embrace. The absence of intersubjective experience and material objects those the individual back on themselves within an alien context.