By Henry Hagnäs from Turku, Finland (Solitary Confinement) [CC BY 2.0 (], via Wikimedia Commons

Huvie Weinreich, Columbia Law School Class of 2018

Solitary confinement (sometimes referred to as restricted or segregate housing) is under legal fire. While prison reform advocates have long campaigned against the use of solitary confinement in prisons, the last past few years have finally seen true advances towards reduction or even elimination of the practice.

As recently as February 9th, 2017, the Third Circuit Court of Appeals struck down Pennsylvania’s practice of indefinitely housing former death-row inmates in Segregated Housing.[1] Plaintiffs, Craig Williams and Shawn T. Walker, were sentenced to death and housed on death row in separate Pennsylvania prisons. After each had his death sentence vacated, they were kept in solitary confinement for several years until they were resentenced to life without parole and placed back into the general prison population. Williams and Walker sued for damages, arguing that their 14th Amendment due process rights had been violated when they were kept in solitary confinement without any review of this placement. The Third Circuit concluded “. . .that there is [a constitutionally protected liberty interest] and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.”[2]

In its opinion, the court cited two other recent legal decisions: Incumaa v. Sterling, a 2015 case in which the Fourth Circuit held that the conditions of solitary confinement are sufficiently worse than general prison conditions such that solitary confinement created a protected liberty interest in remaining with the general prison population,[3] and Johnson v. Wetzel, a 2016 case in which the Middle District of Pennsylvania held that the potential damage from an extended period of solitary confinement was so severe and imminent that the plaintiff was entitled to a preliminary injunction moving him to the general population.[4] As the Third Circuit wrote, these cases serve to highlight “the judiciary’s increasing recognition of the scientific evidence of the harms of solitary confinement.”[5]

These cases come in the wake of heavy criticism from other sources of Pennsylvania’s solitary confinement practices. In 2013, the Pennsylvania State Correctional Institution at Cresson was the subject of a Department of Justice investigation.[6] Cresson was using solitary confinement to manage its prisoners with mental illness rather than providing appropriate care or supervision. Inmates who were determined to be mentally ill would be automatically placed in solitary confinement, in large part because the prison had inadequate mental health facilities to actually treat them. The DOJ found these practices to be violations of the Eight Amendment and the Americans with Disabilities Act. [7]

Additionally, advocates for reform have focused primarily on two issues: mental illness and solitary for juveniles. Many states, including Massachusetts, and Colorado, have passed laws to restrict the length of time mentally ill prisoners spend in solitary and to institute screenings for mental health deterioration while in solitary.[8] At the federal level, much attention has been given to removing solitary confinement for juveniles. In 2015, the MERCY (Maintaining dignity and Eliminating unnecessary Restrictive Confinement of Youths) Act of 2015, a bipartisan juvenile justice reform bill, was introduced in the Senate, but never passed.[9] In January 2016, President Obama banned the use of solitary confinement for juveniles in the federal prison system, and had the DOJ release a report on the use of segregated housing which included general policy recommendations to restrict the use of solitary confinement for all juvenile prisoners.[10] Just this month, the House and Senate have reintroduced the MERCY Act, still a bipartisan initiative, to reinforce the executive order and continue to reform us of solitary confinement.[11]

Of course, not every jurisdiction is currently engaged in reform. For example, Governor Walker of Wisconsin recently introduced a budget for the Wisconsin youth prison that does not give the state enough money to comply with federal law, let alone engage in any needed reforms,[12] particularly in light of the fact that the ACLU is currently suing Wisconsin over youth prison conditions.[13] Additionally, many are concerned that federal prison reform efforts will be halted under President Trump’s new administration.[14]

However, even if executive initiatives for prison reform are not continued or even reversed, the increasing momentum against solitary confinement within our judiciary should give us hope. It appears that courts are beginning to respond to a growth in public sentiment against the widespread use of solitary confinement in U.S. prisons, and are beginning to act to reduce the practice.



[1] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327 (3d Cir. Pa., Feb. 9, 2017).

[2] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *1-2.

[3] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *42-43 (citing Incumaa v. Stirling, 791 F.3d 517, 522 (4th Cir. 2015)).

[4] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *43-44 (citing Johnson v. Wetzel, 2016 U.S. Dist. LEXIS 127780 (M.D. Pa. Sept. 20, 2016)).

[5] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *43.

[6] Civil Rights division, U.S. Dep’t of Justice, News Release 13-631, Justice Department Finds Pennsylvania State Prison’s Use of Solitary Confinement Violates Rights of Prisoners Under the Constitution and the Americans with Disabilities Act (May 31, 2013), (hereinafter “D.O.J. News Release”). The report noted that though ” the Pennsylvania Department of Corrections now intends to close Cresson, many of the prison’s problematic policies and practices relating to the se of solitary confinement appear indicative of what is occurring statewide.”

[7]D.O.J. News Release.

[8] See COLO. REV. STAT. § 17-1-113.8 (2015); MASS. GEN. LAWS § 127-39A (2015); see also The Liman Program, Yale Law Sch. & Ass’n Of State Corr. Adm’rs, Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation In Prison, Sec. I (Aug. 2015), available at [] (for a survey of solitary confinement reform across jurisdictions).

[9] S. 1965, 114th Cong. (2015).

[10] Michael D. Shear, Obama Bans Solitary Confinement of Juveniles in Federal Prisons,  N.Y. Times, Jan. 26, 2016,; Press Release, Office of the Press Sec’y, Fact Sheet: Department of Justice Review of Solitary Confinement (Jan. 25, 2016), [].

[11] News Release from the office of Cong. Mia Love, Mercy Act Would Prohibit Solitary Confinement of Juveniles Tried in Federal System  (Feb. 7, 2017),

[12] Todd Richmond, Critics Pan Walker’s Budget on Youth Prison, Wis. Gazette, Feb. 13, 2017,

[13] Vidushi Saxena, Lawsuit shines light on impact of solitary confinement on youth mental health, Badger Herald, Feb. 7, 2017,

[14] Jon Schuppe, With Trump in White House, Criminal Justice Reformers Will Look Elsewhere, NBC News, Nov. 10, 2016,