Over the past forty years, American prisons have increasingly relied on a brutal method of confinement that inflicts severe suffering on prisoners. Inmates confined in this manner have endured symptoms ranging from hallucinations and perceptual distortions1 to self-mutilation and suicidal ideation.2 Walking past these inmates, one can observe babbling, shrieking, and the banging of prisoners’ bodies against the walls of their cells.3 There is no dispute that this method of confinement has a terrible effect on prisoners’ well-being, and yet because it inflicts mental harm, rather than physical harm, courts have largely turned a blind eye.
Solitary confinement — the confinement of a prisoner in isolation with limited chance for social interaction or environmental stimulus4 — has existed in America for centuries,5 but until the late twentieth century, it was rarely used.6 In the 1970s and 1980s, the use of solitary confinement began to expand,7 as prisons started to employ it not only for discipline and safety,8 but also, in America’s supermax prisons, as a method of long-term imprisonment. Supermax prisons — prisons that house inmates in perpetual conditions of solitary confinement9 — have continued to spread across the country since the first one opened in 1983.10 Today, about forty states have at least one supermax prison, and nearly sixty total facilities are in operation around the country.11 Though estimates vary, most conclude that about 25,000 inmates are currently incarcerated in supermax facilities, with another 55,000 in solitary confinement outside the supermax setting.12
Although there has been no shortage of Eighth Amendment challenges to solitary confinement, they have only rarely succeeded.13 This is because a condition of confinement must deprive a prisoner of a “single, identifiable human need” to be unconstitutional14 and all but a handful of courts have restricted those needs to things that a person cannot be deprived of without suffering grave physical harm15 — for the purposes of this Note, “physical needs.” Substantial psychological and neuroscientific research shows that the deprivation of social interaction results in grave harm,16 but that harm is mental, not physical — meaning social interaction would be a “mental need”17 — and this difference has proven largely insurmountable.18 Lower courts have only rarely recognized grave mental harm in the conditions of confinement context,19 and the Supreme Court has never done so.20 In the past fifteen years, though, the Court has relied on recent psychological and neuroscientific evidence to inform its application of another Eighth Amendment test, the proportionality inquiry.21 The conditions of confinement assessment would similarly become more comprehensive and robust if the Court used psychological and neuroscientific research as a basis for identifying grave mental harm and the unconstitutional mental deprivations that cause it. By equipping itself with this information, the Court would more fully ensure that it carries out its constitutional duty to prevent cruelty, no matter its form.
This Note proceeds in four parts. Part I lays out the doctrinal frameworks of the proportionality and conditions of confinement inquiries and examines the Court’s past use of psychological and neuroscientific research to inform the two tests. Part II first describes how the Court’s use of psychological and neuroscientific research regarding juvenile culpability strengthened the proportionality assessment. It then contends that the Court would similarly improve the conditions of confinement inquiry were it to use scientific research to identify mental needs. This Part focuses specifically on psychological and neuroscientific research regarding social interaction. Part III considers and rejects arguments against judicial use of psychological and neuroscientific research to identify mental needs. Part IV concludes.
I. Applying Psychological and Neuroscientific Research to the Eighth Amendment Inquiries
The Eighth Amendment’s prohibition on cruel and unusual punishment is an evolving standard,22 one that prohibits more than the “physically barbarous punishments” that were its focus in the early days of the Republic.23 While the Court’s Eighth Amendment doctrine continues to develop, today it splits into two branches. The first branch governs punishments that are delivered in response to a crime, the primary inquiry in this area being whether the punishment is “grossly out of proportion to the severity of the crime.”24 The second branch of Eighth Amendment jurisprudence polices conditions within prisons.
1. Doctrinal Framework. — The Supreme Court’s examination of punishments using the proportionality inquiry has generally divided into two groups of cases.25 The first group considers whether a term-of-years sentence is disproportionate to the crime committed.26 In performing this assessment, the Court first undertakes a threshold examination of the sentence to determine whether it is “grossly disproportionate” to the crime committed.27 If the Court finds that it is, the Court then conducts “intrajurisdictional and interjurisdictional” comparisons in order to “validate” the initial judgment.28 Although the Court has occasionally struck term-of-years sentences for being disproportionate, victories for defendants have been rare.29
The second group of cases assesses whether a particular punishment is categorically disproportionate for a certain offense or class of offenders. Coker v. Georgia30 presents an example of the former. There, the Court held that the death penalty was a disproportionate punishment for the offense of raping an adult woman.31 Roper v. Simmons32 shows an example of the latter. In Roper, the Court held that the death penalty was a disproportionate punishment for people who committed their crimes while under the age of eighteen.33 Whether an offense or a class of offenders is at issue, the Court follows the same steps. It first looks to objective indicia of societal approval for applying the punishment to that offense or class of offenders and then examines the punishment using its own independent judgment.34 In Coker, for example, the Court first determined that state legislatures had rarely approved, and that juries had infrequently imposed, the death penalty for the crime of rape.35 It then used its independent judgment to affirm that death was a disproportionate punishment for the rape of an adult woman, largely because the victim does not die.36 In recent years, the Court has shown greater willingness to use its independent judgment to find punishments categorically disproportionate despite objective indicia of societal approval.37
2. Use of Psychological and Neuroscientific Research. — Starting in the early 2000s, the Court began looking to psychology and neuroscience when examining whether a punishment was proportionate to the crime committed for certain classes of offenders.38 After conducting the initial inquiry into objective indicia, the Court has then considered psychological and neuroscientific evidence as part of its independent inquiry.39 Primarily, the Court has employed such evidence to show that a class of offenders does not possess the requisite culpability to receive a particular punishment.40 But the Court has also found such evidence relevant to proportionality for other reasons: because a defendant with diminished mental capacity may be less capable of presenting a formidable defense41 and because, for such a defendant, the central justifications for punishment — deterrence and retribution — are less efficacious.42
The Court has not always been inclined to use psychological and neuroscientific evidence when performing the proportionality inquiry. In the 1989 case Stanford v. Kentucky,43 the Supreme Court narrowly refused to look to psychology in assessing whether juvenile defendants possess the requisite culpability to be punished with the death penalty.44 That same year, in Penry v. Lynaugh,45 the Court declined to adopt a holding proposed by amici that persons with intellectual disability46 never possess the requisite culpability to merit the death penalty.47
The Court changed course in Atkins v. Virginia.48 There, after determining that objective indicia — including the opinions of professional psychological organizations49 — pointed toward abolition of the death penalty for defendants with intellectual disability,50 the Court looked to psychological and neuroscientific research during its independent inquiry,51 which affirmed that the death penalty was inappropriate.52 The Court applied the same approach in a series of decisions following Atkins that examined the proportionality of certain punishments for juvenile offenders. In the first of these cases, Roper, the Court relied on psychological and neuroscientific evidence53 in reaching its conclusion that the death penalty is unconstitutional when applied to juvenile offenders.54 The Court cited similar evidence in Graham v. Florida,55 where it held that life without parole (LWOP) is a disproportionate sentence for a juvenile who does not commit a homicide.56 The Court pointed to both its analysis in Roper and subsequent evidence showing the diminished culpability of juveniles.57 In the most recent of these cases, Miller v. Alabama,58 the Court turned to psychological and neuroscientific evidence59 when it held that mandatory LWOP is unconstitutional when applied to juveniles, no matter the crime.60 Departing from the approach of its earlier decisions, the Court considered the science first61 and then turned to objective indicia such as legislative approval.62 The Court also emphasized that it was not bound by the decision of the majority of state legislatures that LWOP is an acceptable punishment for juveniles who commit a homicide.63
1. Doctrinal Framework. — The other branch of Eighth Amendment jurisprudence examines how prisoners are treated within prisons, including their conditions of confinement.64 When the Court first considered whether a prison condition was unconstitutional under the Eighth Amendment in Estelle v. Gamble,65 its inquiry mirrored the infrequently used “unnecessary and wanton infliction of pain” test from the punishment context.66 Since then, the Court has developed the doctrine significantly.
Today, for a condition of confinement to violate the Eighth Amendment, two prongs must be satisfied. The first prong is objective: the condition of confinement must result in a deprivation that is “sufficiently serious,”67 meaning that it deprives the prisoner of “the minimal civilized measure of life’s necessities.”68 The Court has explained that a prisoner cannot assert a deprivation of “the minimal civilized measure of life’s necessities”69 based on “overall conditions”70 but instead must demonstrate the deprivation of a “single, identifiable human need.”71 Many of these needs have become well established in the jurisprudence. Food, clothing, and medical care all constitute needs.72 As do exercise,73 shelter,74 and safety.75 Lower courts have generally found that sleep76 and hygiene77 also qualify. But beyond these, separating needs from wants becomes an uncertain task as neither the Supreme Court nor lower courts have articulated what precisely defines a need. A rule has nevertheless emerged across the cases that the deprivation of a need must result in the level of grave harm that occurs when a person lacks items of basic sustenance such as food, water, and shelter.78 The Supreme Court said as much in Brown v. Plata.79 There, when determining that medical care is a human need, the Court explained that the deprivation of medical care would result in suffering or death similar to the suffering or death caused by starvation.80 The Court likewise indicated in Hudson v. McMillian81 that a need exists only if its absence effects an “extreme deprivation[].”82 Some lower courts have also required a showing of grave harm.83 Applying this rule — that the deprivation of a human need must cause “grave harm approximating that resulting from the deprivation of a basic element of sustenance such as food and shelter” — sorts the cases into an organized scheme84 and makes the objective prong clearer.
The objective prong of the conditions of confinement inquiry is not met, however, just because a prisoner is temporarily deprived of a need. Instead, courts have evaluated the deprivation in the context of the specific need, setting different standards for how long and how frequently a person must be deprived of a need before his conditions of confinement become unconstitutional. Forcing a prisoner to skip a few meals, therefore, does not create an unconstitutional condition of confinement.85 Neither does a temporary denial of exercise.86 On the other hand, a prisoner cannot be deprived of water for several days because of the critical nature of that necessity.87
The second prong of the conditions of confinement inquiry is subjective: for the condition of confinement to be unconstitutional, a prison official must display “‘deliberate indifference’ to inmate health or safety.”88 In Farmer v. Brennan,89 the Court held that for a prisoner to show deliberate indifference on the part of a prison official he must demonstrate that the prison official evinced subjective recklessness: the official must have “know[n] of and disregard[ed] an excessive risk to inmate health or safety.”90
2. Recognition of Grave Mental Harm. — As of yet, the Supreme Court has recognized only physical needs,91 and lower courts, with a few exceptions,92 have followed its lead. When a prisoner does allege a deprivation of a mental need, courts typically look past it and consider only whether the prisoner was deprived of a physical need.93 In McMillan v. Wiley,94 for example, an inmate in a supermax prison challenged his conditions of confinement on the ground that he had no opportunity to interact with other people.95 The district court rejected the prisoner’s challenge, finding that his “lack of social opportunities”96 did not constitute a deprivation of one of life’s necessities.97 The court instead concluded that the prisoner had suffered no deprivations of life’s necessities at all, citing as proof that he “receive[d] meals, [was] housed in a cell, and [had] limited, but regular, recreation periods.”98 Gibson v. Lynch99 applied similar logic. There, the prisoner argued that his conditions of confinement deprived him of a number of physical needs, as well as social interaction.100 After refuting the prisoner’s claim that he was denied physical needs, the Third Circuit rejected the prisoner’s assertion of a denial of social interaction for not being of “constitutional dimension.”101
Because most courts have focused exclusively on physical deprivations,102 challenges to solitary confinement have generally succeeded only when a prisoner alleged a concurrent deprivation of a physical need.103 In Keenan v. Hall,104 for example, the Ninth Circuit allowed a plaintiff-inmate to proceed to trial based on various alleged physical deprivations surrounding his placement in solitary confinement, including lack of exercise, inadequate lighting, and lack of personal hygiene.105
More recently, a few courts have found solitary confinement unconstitutional based on mental harm alone,106 but only one — Ruiz v. Johnson107 — did so with respect to all prisoners.108 In Ruiz, a federal district court determined that the placement of Texas prisoners into administrative segregation units — units which achieve solitary confinement–like conditions109 — violated the Eighth Amendment “through extreme deprivations which cause profound and obvious psychological pain and suffering.”110 The court explained, “[a]s the pain and suffering caused by a cat-o’-nine-tails lashing an inmate’s back are cruel and unusual punishment by today’s standards of humanity and decency, the pain and suffering caused by extreme levels of psychological deprivation are equally, if not more, cruel and unusual.”111 Another district court reached a similar conclusion in Madrid v. Gomez,112 but it limited its holding to those prisoners who already suffered from mental and psychological illnesses.113 The court did observe that “[m]ental health, just as much as physical health, is a mainstay of life.”114 In Jones‘El v. Berge,115 a district court asserted that mental suffering is cognizable under the Eighth Amendment,116 but its preliminary injunction required the removal from a supermax prison of only a group of mentally ill inmates.117 In contrast, Wilkerson v. Stalder118 recognized that social interaction and environmental stimulation are basic human needs for all people,119 but the district court did not specify whether it was basing its decision on mental needs or physical ones.120
3. Why Courts Have Not Recognized Grave Mental Harm More Frequently. — It is hard to determine specifically why courts have not recognized grave mental harm in the conditions of confinement inquiry because, in most cases, courts simply dismiss the alleged mental need out of hand without providing any analysis. Part of the problem is assuredly a compounding effect: because few courts have recognized mental needs, other courts assert that precedent is against doing so.121 But the more significant problem is that most courts appear unaware of the grave harm caused by the deprivation of mental needs. Courts that have looked to psychological and neuroscientific evidence have generally found the deprivation of social interaction to be unconstitutional.122 Courts that have not looked to the evidence have reached the opposite conclusion.123
Why then have most courts not looked to the evidence? Part of the problem is likely poor briefing by prisoners, who are often filing pro se complaints.124 But a more fundamental problem is that adequate psychological and neuroscientific evidence did not exist until recently.
II. Using Psychological and Neuroscientific Research as a Basis for Recognizing Grave Mental Harm
For challenges based on deprivations of mental needs to be successful, more courts will need to follow the approach taken in decisions like Ruiz and Madrid and use psychological and neuroscientific evidence to identify grave mental harm. Rather than wait for this gradual process to play itself out, and thus potentially allow unconstitutional psychological suffering to persist, the Court ought to take it upon itself to enlist scientific evidence to identify mental needs. Although the Court has never looked to psychological or neuroscientific research when applying the conditions of confinement inquiry, the Court has recently begun to use such research to guide its application of the Eighth Amendment proportionality test. Engaging with recent research when conducting the conditions of confinement inquiry would be just as beneficial.
Between the Court’s decisions in Stanford and Penry and its string of proportionality decisions in the last fifteen years, psychological and neuroscientific research pertaining to offender culpability, at least with respect to juveniles, developed considerably,125 providing the Court with sounder evidence from which to draw conclusions.126 At the time of Stanford, it remained unclear whether juvenile brains continued developing after early childhood,127 and without that information, there was no way for courts to distinguish between juvenile and adult offenders.128 Although some research had been done on brain development prior to Stanford,129 the period of time between Stanford and Roper was when the scientific research, aided by new technology,130 strengthened around the conclusion that juvenile brains are not fully developed.131 This information was not far from the Justices’ minds when they reconsidered the culpability of juveniles in Roper. Amici cited psychological and neuroscientific research to this effect in their briefs,132 and the Court relied on the research in reaching its decision.133
The Court’s decision to examine the scientific research regarding juvenile brain development ensured a more comprehensive Eighth Amendment proportionality inquiry. In a similar fashion, engaging with research that shows the psychological consequences of various mental deprivations would enable the Court to conduct a more robust analysis of those deprivations’ constitutionality. A substantial body of such research exists regarding the effects of social isolation, providing the Court ample resources to assess the constitutionality of solitary confinement.
Although it has long been understood that human beings depend on social interaction for their well-being,134 there was little scientific evidence to back this intuition three decades ago,135 when the Court first began using the Eighth Amendment to assess prisoners’ conditions of confinement.136 Research from recent decades, however, has provided greater insight into the severity of the harm a person suffers when socially isolated.137 Buoyed by numerous psychological examinations of people in isolation,138 and neuroscientific studies,139 a significant body of empirical evidence is now available.140 This research indicates that depriving a person of social interaction results in substantial harm.141 Additionally, evidence has shown that people’s brains process social pain and physical pain in similar ways.142 This latter finding is potentially quite significant since the Court’s test for identifying a need is to ask whether the deprivation of the asserted need results in pain similar to that caused by a loss of physical sustenance.143 The neurological evidence implies that the substantial harm caused by social isolation may indeed cause the same level of pain. Whether social interaction is in fact a human need would require broader evaluation than this Note can provide, but at the very least, it is clear that scientific evidence exists that provides strong support for this notion. In order to make its conditions of confinement inquiry more thorough and comprehensive, the Court ought to consider this evidence.
III. Justifying Judicial Action
Although psychological and neuroscientific research shows that mental harm — particularly that caused by social isolation — can be quite grave, one can make reasonable arguments that courts are not the appropriate entity to respond to the implications of such research. Given the severity of the harm inflicted on prisoners, and the low likelihood of change coming from another sector of government, these arguments are unconvincing.144
Likely the most common argument against court identification of protected needs is that courts should allow legislatures and prison officials to set prison policy.145 An offshoot of this argument is that those entities can and should be the ones who apply the lessons of the scientific research, if they are to be applied at all. This argument is unpersuasive and undercut by the Court’s actions in the proportionality context.
There, the Court’s increased reliance on psychology and neuroscience during the independent judgment step of its analysis seems to reflect its growing acceptance of the common understanding that state legislatures have little incentive to decrease sentences,146 particularly when the proposed decrease is based on scientific research.147 Originally, the Court did not take such an approach. In Stanford, five Justices refused to apply their independent judgment at all and instead followed the national consensus.148 By the time of Atkins and Roper, the Court was willing to engage with psychological evidence but only to reaffirm trends seen in state legislatures.149 It was not until Miller that the Court signaled it was willing to use scientific evidence to reach a conclusion that was at odds with the predominant national practice.150 Although the Justices provided no explanation for their shift, it is at least notable that five Justices were willing to overturn a popular decision on sentencing based in part on psychological and neuroscientific research.151
State legislatures and prison administrators are similarly unlikely to apply evidence from psychological and neuroscientific research to shift prison policies. Perhaps even more so than criminal defendants,152 prisoners have little voice in the political process.153 And for prison administrators, safety and discipline will outweigh concerns about prisoner needs in most cases.154 This is particularly likely when the deprivation at issue is mental, rather than physical, as mental needs have historically not been given the same stature in American society.155 The confluence of these factors thus makes it unsurprising that only a few state legislatures have sought to place limits on the use of solitary confinement.156
If the courts do not step in and apply psychological and neuroscientific evidence, it is unlikely that anyone will do so. Courts are critical then to ensuring that prisoners are not subjected to grave mental harm.
Even if one accepts that courts are more likely than legislatures and prison officials to recognize mental suffering in prisons, another argument arises that courts are simply not capable of determining when a deprivation causes grave mental harm, as opposed to lesser mental harm. There are two reasons why this concern is not particularly significant. First, courts already assess mental suffering. Whenever a court considers a claim of intentional infliction of emotional distress, it must determine whether the plaintiff suffered “severe emotional distress.”157 In doing so, the court must first inquire into the effects the plaintiff felt as a result of the defendant’s conduct and then determine whether those effects result in adequate emotional distress.158 The “grave harm” assessment is quite similar. A court must first inquire into the effects the scientific literature reports for a particular mental deprivation and then determine whether those effects result in adequate harm. If a court can undertake the former inquiry, there seems little reason it cannot undertake the latter.159 But there is also a second, more fundamental problem with this argument. The Constitution imposes a duty on courts to ensure American prisons do not inflict cruel and unusual punishment. It cannot be that this obligation may be shirked merely because determining whether pain is adequately cruel involves tough decisions.
IV. Conclusion
In the past decades, psychological and neuroscientific research has provided substantial evidence that depriving people of social interaction results in grave harm. Nonetheless, this harm goes largely unnoticed in the nation’s courts as prisoners continue to be placed in solitary confinement, often for years on end. The reason for this disconnect is that, with only a few exceptions, courts have looked exclusively to physical harms when applying the Eighth Amendment conditions of confinement test. The Court’s recent proportionality decisions provide a basis for a change. In those cases, by looking to psychological and neuroscientific evidence, the Court strengthened its Eighth Amendment analysis. The same outcome should be pursued in the conditions of confinement setting. The Court ought to engage with the findings of psychology and neuroscience in order to more robustly examine what human beings need. Were the Court to do so, it would dispel the present disparity between different kinds of suffering and more fully achieve the promise of the Eighth Amendment that the American judiciary will sanction punishment, but never cruelty.