“Solitary Confinement, Human Dignity, and the Eighth Amendment”
The title of this post is the title of this new paper authored by Laura Rovner now available via SSRN. Here is its abstract:
The harms of solitary confinement have been well-documented for centuries, yet the practice persists. Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people are currently confined in solitary conditions in American prisons and jails. In part, America’s addiction to solitary remains incurable because the doctrine governing whether a particular punishment practice is constitutional — that is, the doctrine interpreting the Eighth Amendment’s cruel and unusual punishments clause — fails to adequately recognize the harm caused by solitary. To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (i.e., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise). But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination. In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary inflicts.
This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary’s harm to personhood. Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” the Article employs a construct of dignity as integrity — or wholeness — of personhood. Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary, the Article provides a doctrinally and theoretically coherent construct for understanding solitary’s deprivations and the harm those deprivations inflict on personhood. By utilizing the dignity-as-integrity construct, the Article not only provides a more coherent frame to understand the harms of solitary confinement, it also helps better understand how conceptions of dignity shape Eighth Amendment doctrine. For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.