In 2015, Justice Anthony Kennedy suggested that extended periods of solitary confinement might violate the Eighth Amendment’s bar on cruel and unusual punishment. Two years later, Justice Stephen Breyer dissented from the Supreme Court’s announcement that it would not block the execution of a Texas death-row inmate who had been held in solitary confinement for 20 years. But at least four justices must vote to grant review of a case before it will be heard on the merits, and Kennedy has now retired from the court. As a result, several Colorado inmates may face an uphill battle in convincing the Supreme Court to grant their petitions for review, which the justices will consider at their September 24 conference.
One petition was filed by Jonathan Apodaca and Joshua Vigil, both of whom were held in solitary confinement at Colorado State Penitentiary, without any access to outdoor recreation, for more than 11 months. During that time, their only access to recreation – for approximately five hours per week – came when they were taken to an “exercise room” that contained a chin-up bar, with metal grates covering two windows to the outside; prison officials did not cite any justification, such as security concerns, for the policy.
When the two inmates filed a lawsuit in which they contended that the prison’s solitary confinement policy violated the Eighth Amendment, prison officials argued that they were immune from suit because the Eighth Amendment is violated only if inmates are held in solitary confinement without outdoor exercise for at least 12 months. A federal district judge disagreed with the officials and denied their motion to dismiss the case, but the officials appealed to the U.S. Court of Appeals for the 10th Circuit, which reversed. The court of appeals acknowledged that “some form of regular outdoor exercise is extremely important to the psychological and physical well-being of inmates,” but it deemed it an “open question” whether (and therefore not clearly established law that) the solitary confinement policy violates the Eighth Amendment.
In March, Apodaca and Vigil asked the Supreme Court to weigh in, telling the justices that the lower court’s conclusion conflicts with those of five other courts of appeals. It “has long been beyond debate,” they contended, “that the 8th Amendment does not countenance” prison officials’ conduct: The confinement-without-exercise policy was “obviously cruel,” and other cases gave them “clear notice” that they were violating the Constitution.
At the same time, Apodaca and Vigil’s attorneys filed another petition for review, this time on behalf of Donnie Lowe, who was held in solitary confinement without access to outdoor exercise for over two years. In Lowe’s case, prison officials had argued that they could not be sued because only “continuous and prolonged deprivations” of outdoor exercise while in solitary confinement violate the Eighth Amendment, and Lowe’s case does not rise to that level. The 10th Circuit agreed, concluding that there is no clearly established law in that circuit indicating that a deprivation of over two years violates the Constitution.
Both petitions were distributed to the justices in mid-July; the justices could announce whether they will take up one or both of the cases as soon as Thursday, September 27.