Construing the Legality of Solitary Confinement: Analysis of United States Federal Court Jurisprudence

This article analyzes the constitutional parameters of solitary confinement, administrative segregation, and/or punitive isolation within correctional facilities in the United States. After briefly discussing the harmful effects of isolation and the number of inmates subject to this type of confinement, it explains the U.S. Supreme Court’s “atypical and significant hardship” standard for assessing the legality of segregation. Evaluation of 68 cases decided by the 12 U.S. Circuit Courts of Appeals reveals how each Circuit decides when conditions of segregation amount to an “atypical and significant hardship” for the inmate, creating a liberty interest protected by the Fourteenth Amendment Due Process clause. Due to the Supreme Court’s ambiguity, the Federal Circuit Courts of Appeals lack agreement on (1) when liberty interests attach and (2) which confinement conditions outside of segregation should serve as a comparison baseline to assess “atypicality” and “hardship.” While inmates possess limited liberty interests when placed in segregation, the physical and psychological harms wrought by segregation, isolation, and solitary confinement are rarely considered when courts make constitutional determinations of such practices.