Notre Dame Law Review Volume 93 | Issue 3 Article 1 3-2018 Solitary Troubles Alexander A. Reinert Benjamin N. Cardozo School of Law Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Criminal Law Commons, and the Judges Commons Recommended Citation 93 Notre Dame L. Rev. 927 (2018) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact
[email protected]. ARTICLES SOLITARY TROUBLES Alexander A. Reinert* Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice. INTRODUCTION .................................................. 928 I. A BRIEF HISTORY OF THE PRACTICE OF SOLITARY CONFINEMENT ............................................ 937 II. LEGAL CONSTRAINTS ON THE USE OF SOLITARY CONFINEMENT ............................................ 941 A. Solitary Confinement and Procedural Due Process .......... 941 B. Solitary Confinement and the Eighth Amendment .......... 944 1. Eighth Amendment Fundamentals ............... 944 2. Judicial Deference Across Eighth Amendment Doctrine ......................................... 946 3. Deference in Action.............................. 948 4. The Failure to Regulate Solitary Confinement Through the Eighth Amendment................. 950 III. A WAY FORWARD FOR JUDICIAL REGULATION OF SOLITARY CONFINEMENT ...........................................