Supreme Court won't decide if solitary confinement is constitutional

WASHINGTON -- The Supreme Court declined Tuesday to decide whether states' use of solitary confinement for prisoners on death row is constitutional, putting off a major test of the 8th Amendment's ban on cruel and unusual punishment.

The justices denied the case at least in part because of the execution of the original plaintiff, Alfredo Prieto, who was given a lethal injection Oct. 1 by the state of Virginia even before the high court could rule on his final stay application. They also turned down a motion that he be replaced by another death-row inmate.

Justice Anthony Kennedy, an outspoken critic of solitary confinement, went out of his way twice in recent months to suggest that it may be overly harsh treatment, even for prisoners condemned to die. He noted that inmates can be kept alone in small cells for up to 23 hours a day while their appeals drag on for years, if not decades.

"Research still confirms what this court suggested over a century ago: Years on end of near-total isolation exact a terrible price," Kennedy said in a June opinion on another case. "The judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and if so, whether a correctional system should be required to adopt them."

In March, Kennedy told a congressional panel that "solitary confinement literally drives men mad" and the corrections system "in many respects ... is broken."

The Virginia case was filed in July while Prieto was in the final stages of challenging his death sentence for a series of murders. His petition said he was one of only eight inmates on death row in the state and therefore "permanently assigned to extreme conditions of solitary confinement" far different from the state's other 39,000 prisoners, including murderers sentenced to life without parole.

"Some Virginia inmates have been maintained in solitary confinement for over 15 years without any review of whether their conditions are appropriate," the petition said. That is typical of most states; only Missouri houses prisoners sentenced to death with the general prison population.

As Prieto's execution date drew near, fellow death-row prisoner Mark Eric Lawlor asked that he be allowed to replace or join Prieto in the challenge. Lawyers for both men argued that the case "presents the unusual circumstance where Virginia could prevent review of its own practice unless another inmate similarly situated to petitioner but whose execution is not imminent ... is permitted to participate."

State officials denied in their response to the court that death-row conditions were any more dire than those faced by most prisoners. Cells are of equal size, they said, with a window facing the woods outside. Inmates can have regular visits, can watch television in their cells and are given an hour a day for recreation and contact with others on death row. In recent months, they said, conditions have been relaxed even further.

On the other hand, state Department of Corrections Director Harold Clarke defended segregating death-row prisoners in an August deposition. "We see those individuals as potentially the most desperate of all the offenders," he said. "They have been sentenced to die. They have nothing to lose."

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