Why the next big battle at the Supreme Court may be over solitary confinement

Last week, a 5-4 majority of the Supreme Court denied a habeas corpus claim filed by Hector Ayala, who was convicted of a triple murder in 1989. This case, however, is likely to take on greater historical importance than its rather technical ruling might otherwise imply. In a concurrence that is already being widely discussed, Justice Anthony Kennedy brought attention to one of the most important flaws of the American criminal justice system: the massive overuse of solitary confinement.

Davis v. Ayala hinged on hearings from which Ayala's attorneys were excluded, and at which prosecutors used preemptory challenges to exclude every potential African-American or Hispanic juror. The question was whether the exclusion was a "harmless error," which would not require Ayala's conviction to be reversed, even if the state's actions were illegal. The Supreme Court, through Justice Samuel Alito, held that the error was indeed harmless.

This case shows one serious problem with the criminal justice process: the wide discretion of prosecutors to eliminate people of color from juries. But since it didn't change long-established law on this question, this issue isn't why this case is receiving a lot of attention.

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For the majority of his quarter-century in prison, Kennedy observes in his concurrence, Ayala has been held in solitary confinement. While the precise details of his confinement are not known, it is "likely [Ayala] has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone."

Kennedy is identifying an important problem. As he says, "The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators." Modern social science has backed up what has generally been understood intuitively. It is clear that solitary confinement for any prolonged length of time effectively amounts to a form of torture, almost inevitably leading to severe mental health problems.

Admittedly, there are a small number of cases in which prisoners pose such a grave threat to other prisoners that at least some form of solitary confinement may be the least bad option. But solitary confinement is by no means confined to such a narrow set of cases. "An estimated 80,000 Americans — many with no record of violence either inside or outside prison — are living in seclusion," writes Susan Greene in her exhaustive examination of the practice.

Reforming the practice will be difficult, however. This was effectively demonstrated by two opinions issued the same day by one of Kennedy's colleagues, Justice Clarence Thomas.

In a one-paragraph concurrence in Ayala, Justice Thomas responded to Kennedy's thoughtful concurrence by sneering "that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest." In a dissent issued in another case on the same day, Thomas went longform, describing at length, and with pictorial and video embellishments, the crimes of Kevan Brumfield, who was granted a hearing to challenge his death penalty conviction on the grounds of a claimed mental disability. The latter also contained a paean to Warrick Dunn, the son of one of the murder victims, who overcame tragedy to become an NFL running back. (The section about Dunn was so irrelevant to the law that Chief Justice John Roberts and Justice Alito wrote a separate dissent refusing to join it.)

It is not, precisely, that Thomas' observations are wrong. It's that the ends-justifies-the-means conclusions he draws from them are pernicious and subversive of civilized society. Both Ayala and Brumfield committed horrible crimes. They deserve to be severely punished, and we should not forget the immense suffering they caused. None of this means, however, that "better than death" should be the standard by which we evaluate prison conditions. Nor does the nature of heinous crimes mean that people who are mentally handicapped should be subject to the death penalty, or denied due process rights to challenge their convictions.

Justice Thomas' own jurisprudence shows us exactly where these appeals to base emotion can lead us. In one of his first major dissents, he argued that prison guards beating up prisoners for sport did not violate the Eighth Amendment's ban on cruel and unusual punishment. His opinions last week make clear that his unusual reading of the Eight Amendment was hardly the product of sober legal and historical analysis.

We can do better. "Prisoners are shut away," points out Justice Kennedy, "out of sight, out of mind." Some states are beginning to pay attention and reform their solitary confinement practices. Hopefully, more and more governments will head down the humane path marked by Justice Kennedy, rather than the cruel one marked by Justice Thomas.