Is Justice Anthony Kennedy the Pope Francis of the Supreme Court, a conservative coaxing his flock in surprisingly liberal directions? Kennedy already has become the court's patron saint of same-sex marriage. But, the truth is, he isn't so much leading the conservatives as confounding them by joining the liberal cardinals of the court on some key doctrinal disputes.
A possible hint about what Kennedy's next crusade could be came in a little noticed epistle he added as a concurring opinion in a death penalty appeal case (Davis v. Ayala), even though, as he said, it has "no direct bearing on the precise legal questions presented by this case." Uninvited, Kennedy seemed to set the table for an argument that solitary confinement, so widely used in the U.S., is cruel and unusual punishment and unconstitutional. At the very least, Kennedy is inviting lawyers to start pushing those cases up to the court.
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The idea that extended solitary confinement - "administrative segregation" is the Orwellian euphemism - is not cruel and unusual punishment is absurd. Yes, some prisoners are so dangerous they have to be in solitary to protect guards and other prisoners. But all available evidence indicates they are only a fraction of what Amnesty International calls the "entombed." Kennedy writes that there are an estimated 25,000 inmates serving their whole sentences or large portions of them in solitary, mostly in sterile cells for 23 hours a day. A report last year by Amnesty International found that when prisoners in state, county and municipal jails are counted, there are roughly 80,000 Americans in solitary on any given day. No other country puts inmates in solitary at this rate.
Part of what disturbs Kennedy is that judges and juries have no say in who gets sent to solitary. It isn't part of the sentencing process. There is no consistent, transparent and minimally fair system for meting out what is arguably the most extreme punishment short of death.
"Prisoners are shut away - out of sight, out of mind," Kennedy wrote. "It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies ." That assumption is false.
However, there is growing attention to the cruelty and overuse of solitary confinement.
The broader context is that there is now agreement across ideologies that there are way too many Americans in prison. The U.S. is about 5 percent of the world's population but holds roughly 25 percent of the world's prisoners. That is an expensive and ineffective way to fight crime, and it's unsustainable. Many aspects of the criminal justice system are being reexamined from mandatory sentencing, to drug laws and, perhaps, solitary confinement.
There also is a wave of new lawsuits and perhaps some will be heading Kennedy's way. A bone-chilling story in The New York Times Magazine recently got details of some of the cases. The article quoted Craig Haney, a psychology professor at the University of California, Santa Cruz who worked on a large study of solitary.
"The emptiness that pervades solitary-confinement units "has led some prisoners into a profound level of what might be called 'ontological insecurity,'" Haney said. "They are not sure that they exist and, if they do, exactly who they are." If that's too clinical, there is the case of Jack Powers, sentenced to 40 years for bank robbery in 1990, with no history of mental illness. By 2001, he was at the federal "Super Max" prison in Colorado.
"Over the next decade, Powers, by any rational accounting, lost his mind," the Times wrote. "He cut off both earlobes, chewed off a finger, sliced through his Achilles' tendon, pushed staples into his face and forehead, swallowed a toothbrush and then tried to cut open his abdomen to retrieve it and injected what he considered 'a pretty fair amount of bacteria-laden fluid' into his brain cavity after smashing a hole in his forehead." Very few people survive extended solitary confinement without losing their minds. We've created factories to do this clinically and invisibly, which seems a loss of our own civic mind.
There is renewed and intense debate about the death penalty around the country today. In a recent dissent, Justices Stephen Breyer and Ruth Bader Ginsburg called for the court to reexamine the basic question: Is the death penalty constitutional? Perhaps Justice Kennedy might lead the court's liberals to do some soul searching about the cruel and unusual abuse of solitary confinement as well.
Dick Meyer is Chief Washington Correspondent for the Scripps Washington Bureau and DecodeDC (www.newsnet5.com/decodedc).