America’s first system for punishing criminals with solitary confinement began at the Walnut Street Jail, an institution that stood right behind Independence Hall in Philadelphia. Historical and archival evidence from that facility demonstrates that the unchecked use of solitary confinement in today’s correctional facilities contravenes norms that prevailed in the Constitution’s founding era. In the 1790s, a robust array of checks and balances cabined the discretion of corrections officials to isolate prisoners. Judges, legislatures, and high public officials regulated human isolation at the jail, leaving prison administrators relatively little power over solitary confinement. Most importantly, long periods of seclusion could be imposed only by courts acting pursuant to criminal sentencing statutes. Jail officials had the power to impose solitary confinement for disciplinary violations, but only for a matter of days or weeks. Today, however, deference to prison officials has swallowed these constraints. In the present regime, some prisoners remain isolated for years and decades based on decisions by prison officials that courts hesitate to second-guess. The historical record casts doubt upon any originalist argument that the founding generation would have embraced the contemporary regime of judicial deference in matters of human isolation.
In less than four years, three current and former Justices of the U.S. Supreme Court have written opinions calling for constitutional limits on long-term isolation. In 2015, then-Justice Kennedy reached out to discuss solitary confinement in a case that had almost nothing to do with the subject.1×1. Davis v. Ayala, 135 S. Ct. 2187, 2193, 2210 (2015) (Kennedy, J., concurring). Concurring in the opinion of the Court in Davis v. Ayala,2×2. 135 S. Ct. 2187. he opined that in “a case that presented the issue” the judiciary should “determine whether workable alternative systems for long-term [solitary] confinement exist, and, if so, whether a correctional system should be required to adopt them.”3×3. Id. at 2210.
That same year, Justice Breyer dissented from the denial of a stay in a capital case, arguing that isolating prisoners at length “create[s] [a] special constitutional difficul[ty]” when coupled with the fear of awaiting execution.4×4. Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting). Most recently, Justice Sotomayor wrote a statement respecting the denial of certiorari in a solitary confinement case.5×5. Apodaca v. Raemisch, 139 S. Ct. 5, 6 (2018) (Sotomayor, J., respecting the denial of certiorari). While agreeing with the Court’s decision to decline review due to waiver concerns, Justice Sotomayor cautioned that in future cases, “[c]ourts and corrections officials must . . . remain alert to the clear constitutional problems raised by keeping prisoners . . . in ‘near-total isolation’ from the living world.”6×6. Id. at 10 (quoting Ayala, 135 S. Ct. at 2210 (Kennedy, J., concurring)). She then likened solitary confinement to a “penal tomb.”7×7. Id.
This Article demonstrates that legal checks and balances constituted a defining feature of America’s first regime of solitary confinement, implemented in the early years of the Republic. The original paradigm diffused the authority to isolate prisoners among the legislature, the courts, and high government officials. In this system, corrections staff had the power to impose days and weeks of isolation for disciplinary infractions, but months and years could be imposed only as a criminal sentence ordered by a court. This legal order mitigated the suffering of prisoners in solitary confinement by limiting the length of their seclusion.
Contemporary solitary confinement has drifted far away from this original model. Legal checks and balances temper the cruelty of human isolation with less force than they did in the early Republic, and prison officials enjoy broad authority over prolonged isolation. In civil cases challenging solitary confinement, the law instructs courts to defer to prison officials’ judgment. Nonjudicial oversight has ebbed as well, generally empowering staff and their supervisors to impose indefinite isolation without approval from anyone outside the prison system. This level of administrative discretion can translate into cruelty: some prisoners remain in isolation cells for years and decades. One inmate languished there for forty-three years.8×8. Josie Duffy Rice, After 43 Years, the Longest-Serving Solitary Confinement Prisoner Has Been Released, Daily Kos (Feb. 22, 2016, 12:00 PM), https://www.dailykos.com/story/2016/2/22/1489181/-After-43-years-the-longest-serving-solitary-confinement-prisoner-has-been-released [https://perma.cc/9JE7-RE3G]. Prisoners in solitary confinement can descend into extreme psychosis; manifestations may include talking to oneself, hallucinations, self-harm, and shrinkage of the brain’s physical size.
This Article examines Philadelphia’s Walnut Street Jail. This institution, which stood behind Independence Hall,9×9. John Hills, This Plan of the City of Philadelphia and It’s [sic] Environs (Shewing the Improved Parts) (Philadelphia, John Hills 1797), https://www.loc.gov/item/2007625050 [https://perma.cc/5WDC-FK8N] (map) (depicting the Walnut Street Jail as “45. Goal [sic] for Felons” and Independence Hall as “38. State House”). became the birthplace of solitary confinement in America. In the 1780s and 1790s, prominent Philadelphia intellectuals, including Benjamin Rush and Pennsylvania Supreme Court Justice William Bradford, championed solitude as a sanction for crime. As the states debated ratification of the Bill of Rights, Philadelphians augmented the Walnut Street Jail with an unprecedented structure: a building designed to punish criminals by isolating them. Along with the physical edifice, Pennsylvania built America’s first legal structure for secluding prisoners — a series of solitary confinement laws.
These laws constrained solitary confinement as surely as they established it. After all, the new system served a merciful end, at least in relative terms: seclusion supplanted the death penalty for a great number of crimes. Spared from the gallows, convicts would be left in solitude to redeem themselves through austere introspection and repentance. The prison reformers believed solitude could be powerful and transformative in moderation, but they also worried it could become cruel and destructive in excess.
Pennsylvania therefore tempered solitary confinement with strict controls on its use, developing a sophisticated system of checks and balances that limited the cruelty of isolation and the discretion of corrections officials. Periods of seclusion for months or years could be imposed only by a court acting pursuant to a criminal sentencing statute. To make the length of isolation proportional to the offense, the law required sentencing judges to calibrate the solitary component to the overall length of the prison sentence. Moreover, only serious crimes (ones previously punished by death) authorized a court to impose a solitary confinement sentence at all. These laws also allowed jail officials to punish disciplinary infractions with solitary confinement, but only for a matter of days.
I have three objectives in this Article. First, I examine the institution of solitary confinement in Philadelphia as a system of legal constraint. The story of solitary confinement at Walnut Street has been recounted before, but not as a story of checks and balances designed to cabin the discretion of prison officials and to mitigate isolation.10×10. Previous accounts of the use of solitary confinement at Walnut Street Jail include: Harry Elmer Barnes, The Evolution of Penology in Pennsylvania: A Study in American Social History 135–37 (1927); Negley K. Teeters, The Cradle of the Penitentiary: The Walnut Street Jail at Philadelphia, 1773–1835 passim (1955); Negley K. Teeters & John D. Shearer, The Prison at Philadelphia Cherry Hill 1829–1913 passim (1957); Richard Vaux, Brief Sketch of the Origin and History of the State Penitentiary for the Eastern District of Pennsylvania, at Philadelphia 13–17 (Philadelphia, McLaughlin Brothers 1872); Harry Elmer Barnes, The Historical Origin of the Prison System in America, 12 J. Crim. L. & Criminology 35, 48–49 (1921); LeRoy B. DePuy, The Walnut Street Prison: Pennsylvania’s First Penitentiary, 18 Pa. Hist. 130, 131–34 (1951); Melvin Gutterman, Prison Objectives and Human Dignity: Reaching a Mutual Accommodation, 1992 BYU L. Rev. 857, 862–63; Leonard G. Leverson, Constitutional Limits on the Power to Restrict Access to Prisons: An Historical Re-examination, 18 Harv. C.R.-C.L. L. Rev. 409, 415–17 (1983) (discussing the penitentiary system’s emphasis on systematic inspections); Thorsten Sellin, Philadelphia Prisons of the Eighteenth Century, 43 Transactions Am. Phil. Soc’y 326, 328–29 (1953); and Matthew W. Meskell, Note, An American Resolution: The History of Prisons in the United States from 1777 to 1877, 51 Stan. L. Rev. 839, 846–49 (1999). Second, prior scholarship has sometimes assumed that isolation sentences were equally severe in the 1790s and the Jacksonian Period. This Article challenges that view, showing that solitary confinement became harsher and longer in the 1820s.
Finally, I contrast solitary confinement past with solitary confinement present. The level of discretion enjoyed by some prison officials today and the periods of isolation they sometimes impose would have been unthinkable at the Walnut Street Jail. At least in solitary confinement cases, this Article’s comparison between the two systems undermines the originalist argument for judicial deference to prison staff advanced by two Supreme Court Justices.11×11. See Hudson v. McMillian, 503 U.S. 1, 17–29 (1992) (Thomas, J., dissenting). In Hudson v. McMillian,12×12. 503 U.S. 1. a case about the use of force by a prison guard, Justice Thomas, joined by Justice Scalia, argued that early American courts did not intervene in penal administration: while opining that “[s]urely prison was not a more congenial place in the early years of the Republic,” the Justices asserted that despite these harsh conditions, “the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life.”13×13. Id. at 19 (Thomas, J., dissenting). It may be true that courts did not superintend prison conditions generally, but this Article shows such a claim would be incorrect if applied to solitary confinement specifically.
I focus on Pennsylvania because it provides important evidence of early American solitary confinement practices. Pennsylvania was the intellectual epicenter of solitary confinement in America, and the richest discussion of the topic occurred there in the last two decades of the eighteenth century. While other states enacted solitary confinement legislation in the late 1790s and early 1800s,14×14. See, e.g., Act of Dec. 15, 1796, ch. 2, reprinted in 2 The Statutes at Large of Virginia 5 (Samuel Shepherd ed., Richmond, Samuel Shepherd 1835); Act of Mar. 30, 1798, ch. 56, 1798 N.Y. Laws 216; Act of Mar. 15, 1805, ch. 120, 1804 Mass. Acts 172; Act of Mar. 15, 1805, ch. 123, 1804 Mass. Acts 179; Act of Mar. 16, 1805, ch. 131, 1804 Mass. Acts 202; Act of Mar. 16, 1805, ch. 133, 1804 Mass. Acts 209; Act of Mar. 16, 1805, ch. 143, 1804 Mass. Acts 240; Act of Nov. 9, 1808, ch. XXIX, § 11, reprinted in 3 Laws of the State of Vermont 65 (Rutland, Vermont, Fay, Davison & Burt 1817). Pennsylvania acted in 1790, closer in time to the enactment of the Bill of Rights than any other state. Moreover, other states looked to Pennsylvania as a model when implementing their systems.15×15. See Report on Punishment & Prison Discipline [hereinafter Report on Punishment], reprinted in 1 The Register of Pennsylvania: Devoted to the Preservation of Facts and Documents, and Every Other Kind of Useful Information Respecting the State of Pennsylvania 206 (Samuel Hazard ed., Philadelphia, W.F. Geddes 1828) [hereinafter Register of Pennsylvania] (noting that the Walnut Street Jail’s regimen was “subsequently imitated at New York, Boston, Baltimore, and other places”); Meskell, supra note 10, at 848–49. The Walnut Street Jail came to be recognized as a paradigm of solitary confinement in America.16×16. See, e.g., Donald W. Dowd, The Pit and the Pendulum: Correctional Law Reform from the Sixties into the Eighties, 29 Vill. L. Rev. 1, 3 n.7 (1984) (citing Harry E. Allen & Clifford E. Simonsen, Corrections in America 27 (3d ed. 1981)); Thom Gehring, Characteristics of Correctional Instruction, 1789–1875, 46 J. Correctional Educ. 52, 56 (1995); Thorsten Sellin, The Origin of the “Pennsylvania System of Prison Discipline,” 50 Prison J. 13, 14 (1970); Rex A. Skidmore, Penological Pioneering in the Walnut Street Jail, 1789–1799, 39 J. Crim. L. & Criminology 167, 180 (1948).
Part I sets the stage for Pennsylvania’s system of solitary confinement by analyzing the writing of John Howard, an English sheriff and prolific author on the subject. The American prison reformers set out to implement Howard’s ideas on prisoner isolation at the Walnut Street Jail. Part II discusses the implementation of solitary confinement in Philadelphia. This Part begins by examining the writings of Justice Bradford, Rush, and other advocates of solitary confinement in Pennsylvania in the 1780s and 1790s. Part II then considers the regime of seclusion created by statute in the early 1790s, demonstrating that jailers lacked the power to isolate prisoners for years or even months. Part II concludes by describing the weakening of checks and balances in the late 1820s and the more extreme form of isolation that took hold in Pennsylvania in the Jacksonian period, only to be rejected later as inhumane. Part III turns to contemporary solitary confinement, demonstrating that the practice has become unmoored from the legal structures that limited the discretion of prison staff at the Walnut Street Jail. Modern solitary confinement is therefore a distortion — not a realization — of the original American model.
* Clinical Associate Professor of Law, Northwestern Pritzker School of Law; Director, Supreme Court and Appellate Program, Roderick and Solange MacArthur Justice Center. The ideas in this Article benefited from feedback from: the Northwestern Faculty Workshop series, Andrew Koppelman, John McGinnis, Charlotte Crane, Leigh Bienen, Shari Diamond, Margo Schlanger, Judith Resnik, Maggie Filler, Daniel Greenfield, Arielle Tolman, and the editors of the Harvard Law Review. The Philadelphia City Archive, the Church of Jesus Christ of Latter-day Saints, and the Historical Society of Pennsylvania shared archival records regarding the Walnut Street Jail. Above all, I am grateful to Rosalind Dillon and Lisa Winkler. I could not have written this Article without their extraordinary dedication, research, and analysis