Federal Appeals Court Finds Fault In Longtime, Unreviewed Solitary Confinement

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Joshua Robert Brown was held in solitary confinement for 27 months in an Oregon state prison. Eight times, he requested review of his status as an inmate subject to more than 23 hours a day of isolation in a windowless cell the size of a bathroom. Each time, his requests were denied without review.

A federal appeals court held last week that his “lengthy confinement” was an “atypical and significant hardship.” That he was held without meaningful opportunity to challenge his isolation was potentially a violation of his constitutional due process rights that implicates “a protected liberty interest under any plausible baseline,” the three-judge panel wrote. But there is no recourse for Brown, because the state corrections department and officials are entitled to immunity.

Brown lost his ultimate claim for money damages in part for procedural reasons — he was suing a state entity in federal court, and he had already been released by the time of the appeals court ruling.

But he also lost because one of the criteria for overcoming what is known as “qualified” immunity of state officials is that the right must have been clearly “established at the time of the alleged violation.” As the court writes, “Although we conclude that a lengthy confinement without meaningful review may constitute atypical and significant hardship, our case law has not previously so held, and we cannot hold defendants liable for the violation of a right that was not clearly established at the time the violation occurred.”

Now, the federal appeals court has recognized that holding inmates for long periods of time in conditions that have been called a “living death” and “torture” has constitutional implications. This could be particularly significant because the U.S. Court of Appeals for the Ninth Circuit also covers neighboring California, where more than 500 inmates have been reportedly held in solitary confinement for between 10 and 28 years, and the review process for seeking release in at least the most notorious facilities constitutes a secret 20-minute meeting that involves the inmate, a gang investigator, and no witnesses.

In January, a Virginia federal judge held ruled that indefinite, unreviewed confinement of even death row inmates was unconstitutional. And last year, the Massachusetts high court invalidated that state’s prolonged solitary confinement as a due process violation.