For three current and former Colorado inmates who spent months or years in solitary confinement, Tuesday’s ruling by the U.S. Supreme Court will go down as a loss.
In a routine order, the justices declined to hear the inmates’ appeals against Colorado Department of Corrections Executive Director Rick Raemisch and the warden of the Colorado State Penitentiary. That means two 10th Circuit Court of Appeals rulings last year dismissing the lawsuits will stand.
But the cases could still reverberate through American legal history because, in comments accompanying the denial, Justice Sonia Sotomayor used the lawsuits to make a biting argument against longterm solitary confinement in general.
“A punishment need not leave physical scars to be cruel and unusual,” she wrote to start her comments.
Such statements accompanying a denial are not particularly common, and they don’t create legal precedent that other courts must abide by. Instead, justices typically use these statements to vent a little on an issue, explain why an appeal was rejected or hint at what might be needed for a case on the topic to get taken up by the court.
In this instance, the three inmates — Jonathan Apodaca, Joshua Vigil and Donnie Lowe — sued Raemisch and the warden, Travis Trani, over their lack of outdoor exercise while in solitary confinement. Both Apodaca and Vigil spent 11 months in solitary confinement, while Lowe spent longer — a total of 11 years spread out over his life.
For the entirety of the time Apodaca and Vigil were in solitary and for about two-and-a-half years of Lowe’s solitary tenure, they each spent 23 hours a day in their respective cells with their only “outdoor” time coming in a 90-square-foot room with two tall, skinny windows covered by grates.
That occurred years ago, and a lot has changed since then.
While the lawsuits were pending, both Lowe and Apodaca were released from prison.
Colorado has also ended the use of solitary confinement for longer than 15 days at a time, after Raemisch drew widespread attention by spending 20 hours in a solitary cell to learn about confinement conditions. And inmates in solitary in Colorado now have access to more genuine outdoor recreation.
Much of the appellate debate about the cases did not involve arguments simply over whether such solitary conditions are cruel. Instead, debate focused on whether access to outdoor recreation for inmates is established clearly enough as a constitutional right that not providing it means corrections officials can be sued.
Ultimately, Sotomayor wrote, the case did not present the right mix of facts and issues and “is not well suited to our considering the question now.”
But that deflection only set up her bigger punches against solitary confinement.
“What is clear all the same,” she wrote, “is that to deprive a prisoner of any outdoor exercise for an extended period of time in the absence of an especially strong basis for doing so is deeply troubling — and has been recognized as such for many years.”
Sotomayor noted national statistics showing as many as 100,000 inmates being held in some form of solitary confinement in 2016. She likened the modern-day conditions to scenes from Charles Dickens’ writing.
And she made specific mention of the ongoing harm solitary confinement may cause in people’s lives, even after their prison terms are up and they return to the outside world. After he was released from prison in 2015 — landing on the streets directly from solitary confinement, Sotomayor wrote — Lowe found work in the construction industry. But, earlier this year, he died.
“While we do not know what caused his death … we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars,” she wrote.
To Elisabeth Owen, the Denver attorney who represented all three plaintiffs, Sotomayor’s words were appreciated but also disheartening.
“It’s of course bittersweet because it’s coming with a decision that says there is no remedy for these folks who were subjected to this practice,” she said in an interview with The Colorado Sun on Tuesday. “I, frankly, feel slightly frustrated that the most powerful court in the country says they have no power to do anything to remedy this.”
In an email, a spokeswoman for the Colorado Attorney General’s Office, which represented the corrections officials in the cases, said, “We presented the case to the court and believe they reached the appropriate decision.” She referred further questions to the state Department of Corrections, where a spokesman did not respond to requests for comment.
Colorado had 203 inmates in what it termed “extended restrictive housing” when it ended the practice last year. (Colorado currently has about 20,000 people locked up in state and private facilities.)
Since then, the state is still housing large numbers of inmates in 20-hours-a-day solitary confinement, allowing them group exercise times that are often dangerous, Owen said. Monthly cases of fighting among inmates and inmate-on-inmate assaults appear to be increasing, she said.
“I am deeply concerned that the Colorado Department of Corrections has failed to come up with a plan for the post-solitary confinement world,” she said.
Sotomayor, too, argued that simply ending solitary confinement was not enough.
“Those changes,” she wrote, “cannot undo what petitioners, and others similarly situated, have experienced, but they are nevertheless steps toward a more humane system.”
“Courts and corrections officials,” she concluded her statement, “must accordingly remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world … in what comes perilously close to a penal tomb.”
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