#Supreme cruelty: SCOTUS refuses to limit the tortures of solitary confinement 

While millions of Americans spent Thanksgiving celebrating the holiday with family and friends, Michael Johnson spent it in an Illinois prison. Sentenced in 2007 for home invasion and assault, for a substantial part of his imprisonment Johnson has been held in solitary confinement. 

For more than three years, he was denied the opportunity to exercise outside his cramped cell. In Illinois, even inmates in solitary confinement are normally permitted at least eight hours a week of recreation outside their cells.  

In January of this year, Johnson asked the Supreme Court to hear his allegation that his treatment in solitary confinement constituted cruel and unusual punishment. Late last month, it refused to do so.   

The high court turned its back on the gratuitous cruelty that can be added to what some experts call “psychological torture” inflicted on the thousands of inmates who are put in solitary confinement in this country. 

As Johnson’s petition to the Supreme Court made clear, being denied the opportunity to exercise outside his cell for long periods of time is not a trivial matter. It compounds the horrors of solitary confinement itself.  

“Forced to spend virtually every moment in a windowless cell that was sealed with a solid-steel door,” Johnson claimed that his “physical and mental health deteriorated. His muscles withered, he repeatedly smeared feces on his body, endured hallucinations, and compulsively picked at his own flesh, and he required ‘suicide watch’ time and again.” 

Johnson’s petition also reminded the justices of the court’s prior decisions that recognized that “Exercise, like shelter, food, and medical care, is one of the ‘minimal civilized measure[s] of life’s necessities’ that prison officials must provide.”  

Anthony Kennedy, then a judge on the U.S. Court of Appeals for the Ninth Circuit, explained that those decisions acknowledged “Some form of regular outdoor exercise is extremely important to the psychological and physical well-being of the inmates. It was,” Kennedy said, “cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside except for occasional court appearances, attorney interviews and hospital appointments.” 

Since then, with the exception of the Seventh Circuit Court of Appeals, which has jurisdiction over federal cases coming out of Illinois, Indiana and Wisconsin, Courts of Appeals all across the country have followed Kennedy. They have held that “prison officials can only impose prolonged and near-total exercise denials on those in solitary confinement if exercise cannot be provided without jeopardizing prison security.” 

That is why, even for a Supreme Court notoriously inhospitable to prisoner rights cases, the refusal even to hear Johnson’s case was shocking. 

Johnson is hardly the worst or more dangerous offender in the Illinois prison system. But he may be among the most disabled. 

As a report in CNN notes, from the moment Johnson was incarcerated, he was classified as “seriously mentally ill and diagnosed with depression, bipolar disorder, among other disorders. Between 2008 and 2016, he had multiple conduct violations including assaulting correctional officers or other inmates, and his accrued segregation time meant that he spent almost three and a half years in solitary confinement.” 

During that time, the denial of exercise was used “to punish Mr. Johnson for engaging in misconduct that was born of mental illness and unrelated to exercise.” 

We should note, however, that solitary confinement is itself cruel. As Justice Stephen Breyer wrote in 2017, it is “an additional punishment of such a severe kind that it is spoken of … as ‘a further terror and peculiar mark of infamy.’”   

Breyer quoted a 2015 opinion authored by Justice Kennedy that recognized the grave “human toll” that is “wrought by extended terms of isolation.”  

Noting that “Years on end of near-total isolation exacts a terrible price,” Kennedy described the common side effects of solitary confinement, including “anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”  

Breyer also cited an 1890 decision in which the Supreme Court recognized the many harms of solitary confinement. Even then the court recognized that there were what it called “serious objections” to the practice. 

“A considerable number of the prisoners fell, after even a short confinement,” the court noted more than a century ago, “into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

Amnesty International reports that “The use of prolonged, indefinite solitary confinement is a violation of the prohibition against torture and other cruel and inhuman or degrading treatment or punishment found in international human rights law.” 

Still, by some estimates there are 120,000 people now in solitary confinement in jails and prisons in the United States. Many of them, like Michael Johnson, are there because they are severely mentally ill and because correctional institutions don’t know what else to do with them. 

As Supreme Court Justice Ketanji Brown Jackson observed in her dissent from the court’s refusal to hear Johnson’s case, which was joined by Justices Elena Kagan and Sonia Sotomayor, the courts’ two other liberal justices, the denial of permission to exercise meant that during his time in solitary confinement, “Johnson spent nearly every hour of his existence in a windowless, perpetually lit cell about the size of a parking space.” 

Jackson said that “His cell was poorly ventilated, resulting in unbearable heat and noxious odors. The space was also unsanitary, 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.”  

She went on to explain that because he couldn’t leave his cell to exercise, “Johnson became suicidal and sometimes engaged in misconduct with the hope that prison guards would beat him to death. … He developed respiratory difficulties, including painful chest contractions and nosebleeds. Worse still, Johnson’s dire physical condition led to further yard restrictions, as prison guards faulted him for being disruptive and having an unclean cell.” 

In the end, even this horrifying account of what happened to Johnson was not enough to persuade the court’s conservative majority even to give him a chance to make his constitutional case.   

As The Washington Post’s George Will reminds us, “The authors of the Eighth Amendment did not include a clause saying cruelty is unacceptable ‘unless the prisoner is unusually difficult or especially evil.’… [T]he Eighth Amendment proscribes barbaric punishments for society’s sake — to insulate it from its inhumane impulses, to which humanity is prey.” 

Alas, the court’s conservative majority gave in to such impulses when it turned a blind eye to Michael Johnson’s suffering and ignored his request that it limit the kinds of cruelty that can be inflicted on inmates in solitary confinement. 

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.