Punishment that causes durable impairments of the punished person’s brain surely violates the Constitution’s Eight Amendment proscription of “cruel and unusual punishments.” So, last week the Supreme Court’s three “liberal” justices rightly dissented against the six “conservative” justices’ decision not to hear a case concerning the all-too-common prison practice of protracted solitary confinement.
Michael Johnson, imprisoned in Illinois’ Pontiac Correctional Center (we will revisit “correctional” below) for home invasion and assault, was a mental wreck before prison policy made him more so. The state’s Department of Corrections classifies him “seriously mentally ill”; his conditions include severe depression and bipolar disorder.
Johnson sued. A district court granted summary judgment in 2018 in favor of the prison officials, even though the Supreme Court has hitherto found officials liable for “deliberate indifference” to a substantial risk to an inmate’s health or safety. A three-judge panel of a federal appellate court in 2022 affirmed the district court’s legal error, 2-1. This judgment survived when the full court tied 5-5 in considering it.
Last week the Supreme Court denied Johnson’s appeal. The court was not even accepting the prison officials’ argument that Johnson’s ongoing punishment was an administrative necessity. They made no such argument.
Justice Ketanji Brown Jackson dissented from this denial, joined by Sonia Sotomayor and Elena Kagan. Brown, the first justice to have seen the criminal justice system from the perspective of a practicing public defender, notes that for nearly three years Johnson:
“… spent nearly every hour of his existence in a windowless, perpetually lit cell about the size of a parking space. His cell was poorly ventilated, resulting in unbearable heat and noxious odors. The space was … often caked with human waste. And because Pontiac officials would not provide cleaning supplies to Johnson unless he purchased them from the commissary, he was frequently forced to clean that filth with his bare hands. Johnson was allowed out of his cell to shower only once per week, for 10 brief minutes.”
Ordinarily, even Pontiac inmates in solitary confinement are permitted at least eight hours a week of recreation outside their cells. The denials of Johnson’s permission were “stacked,” so he endured more than three years of restrictions. Brown details the consequences of such exercise deprivation: “He suffered from hallucinations, excoriated his own flesh, urinated and defecated on himself … became suicidal and sometimes engaged in misconduct with the hope that prison guards would beat him to death.”
Because of solitary confinement (“restorative housing,” in the mincing language of Virginia’s Department of Corrections today), “A considerable number of prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane.” These are the Supreme Court’s words from a ruling in 1890.
Whether prisons should try to be “correctional” institutions – straighteners of humanity’s most crooked timber – is debatable. But certainly prisons should not make prisoners worse. When Johnson’s mental illness made him difficult to manage, Pontiac’s punishments drove him deeper into insanity, and Pontiac continued punishing him for his resulting behaviors.
If, however, Johnson were mentally competent – had he been incarcerated as, say, a coolly calculating offender – Pontiac’s treatment of him would still have violated the Bill of Rights. The authors of the Eighth Amendment did not include a clause saying cruelty is unacceptable “unless the prisoner is unusually difficult or especially evil.” Just as the First Amendment protects even vile speech for the protection and betterment of society, the Eighth Amendment proscribes barbaric punishments for society’s sake – to insulate it from its inhumane impulses, to which humanity is prey.
Conservatives, ever apprehensive about the abuses of power to which empowered people always and everywhere are susceptible, should be acutely alert about potential abuses of prisoners, who exist at the state’s mercy, behind high walls and nontransparent procedures.
The Eighth Amendment makes originalists fainthearted. Spare us sermons about the public meaning of “cruelty” in 1790: No court today would sanction some punishments (e.g., flogging, branding, mutilation, the pillory) practiced when the amendment was ratified. Prolonged solitary confinement was not imposed then. Today, however, protracted isolation is far from “unusual”; it is now traditional and common. But the amendment’s original meaning that matters is: We shall not countenance government-inflicted cruelty.
The court majority’s dereliction of duty regarding Johnson illustrates how the labels ”liberal” and “conservative” can be inapposite in judicial contexts. The conservatives showed undue deference to government; the liberals correctly construed precedent and the Constitution’s original public meaning.
Reach George Will at georgewill@washpost.com.
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