Sandin and Wilkinson were decided during Chief Justice William Rehnquist's tenure, and the Chief Justice played the lead role in reshaping the Court's solitary confinement caselaw over the past thirty years. It was Chief Justice Rehnquist who fashioned the “atypical, significant hardship” test in Sandin v. Conner and it would have to be exhibit 1 demonstrating the Chief Justice's “indifference to prison terrors,” to borrow Professor Judith Resnik's eloquent phrase. The Hijacking article contended that the Sandin Court totally ignored the facts of the case and time-honored settled precedent that required due process protection prior to imposition of even short-term solitary confinement. In doing so, the Court disrespected the revered tradition of stare decisis and constitutional avoidance. Only the remnants of due process remained after the deliberate indifference of Sandin.

The Rehnquist Court's other leading solitary confinement case, Wilkinson v. Austin, will be examined in depth in this Essay. The pendulum swung back ever so slightly in Wilkinson as the Court found due process protection did attach in the Ohio Supermax solitary confinement setting due to extreme isolation that was indefinite and only reviewed annually, and that denied any chance for parole. Nonetheless, the Court ultimately rejected the Austin prisoners' due process claims despite uncontested evidence of a four-year pattern and practice of due process violations affecting hundreds of prisoners and ruled in favor of the prison officials by concluding they had provided sufficient procedural protections. The Court ignored the district court's findings and judgment that concluded that an eve-of-trial “New Policy” promulgated by Ohio correctional officials was insufficient to remedy the systemic continuing violations of the broken system; instead, the Court assumed that Ohio prison officials would faithfully comply with the new policy they drafted, and it reversed the district court's injunction. The Court did so even though the State did not contest the district court's fact findings on appeal and the same officials would be called upon to implement the New Policy. The Court not only repudiated the injunction provision that allowed inmates to call witnesses in solitary confinement hearings, a “correction” that it is submitted was adequately accommodated by the Wolff v. McDonnell procedural model, but also went on to overturn the comprehensive injunction in its entirety. In doing so it compounded and magnified its error by eliminating not only the witness testimony provisions, but also all of the key injunction provisions that ensured that inmates had meaningful advance notice and a fair opportunity of rebuttal.

Nine months after the Supreme Court's ruling, the State of Ohio in open court acknowledged that its prison officials had never implemented the New Policy and had no intention of doing so! This extraordinary and unprecedented development has largely flown below the radar of the general public, commentators, and the judiciary, in significant part because of the skillful, restrained follow through by the presiding judge, U.S. District Court Judge James Gwin. Judge Gwin addressed the State's recalcitrance by fashioning a new injunction based on the Hewitt v. Helms due process model that the Court embraced in Wilkinson. Judge Gwin recognized what the Supreme Court apparently did not, that the due process right to meaningful notice is so basic and fundamental that it is protected under both the informal, nonadversary Hewitt model and the formal, adversarial Wolff model. Judge Gwin's task was complicated because the Wilkinson Court was also fundamentally mistaken in its reading of a central procedural safeguard of the New Policy--that, contrary to the Supreme Court's reading of the New Policy, did not require unanimity among the three levels of prison administration decision makers before an inmate could be assigned to OSP. When it became apparent that, contrary to the Supreme Court's confidence that Ohio would implement the New Policy, it had not done so, Judge Gwin salvaged the unanimity enhancement in significant part based on the “ratio decidendi” he extracted from salvaged portions of the Wilkinson Court's reasoning.

Is this the time for another leader on the Court to emerge, perhaps another conservative Justice such as Chief Justice Burger, to revitalize due process protections for prisoners in solitary confinement? This Author will contend that both Sandin and Wilkinson were egregiously wrong on the day of their decisions, and their fundamental flaws significantly undercut their precedential force. This Essay contends that Sandin's “atypical, significant hardship” test should be overruled. While acknowledging Wilkinson’s liberty interest and periodic review holdings were pathbreaking, this Essay will contend that Wilkinson egregiously erred in upholding Ohio's Supermax classification process, and therefore, its “process due holdings” require major reform.