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Abstract

In the first of this sequence of three articles, I wrote briefly about my co-counsel role in Aikens v. Lash, one of the earliest cases that successfully challenged the constitutionality of solitary confinement. The 1973 National Advisory Commission on Criminal Justice Standards and Goals was a valuable resource for our litigation efforts in Aikens and the Executive Director of the Commission’s Task Force on Corrections, Lawrence Carpenter, was a key expert witness for the Aikens prisoner plaintiffs and his testimony was quoted by U.S. District Judge Robert Grant. Although nearly fifty years ago now, one does not forget the powerful testimony of Larry Carpenter nor fail to recall the National Commission’s Commentary on the experience and research supporting the stringent limits on solitary confinement that it recommended. The Commission’s experience and insight should continue to inform our current criminal justice system—the Commission “wishes to record its view that the practice [of solitary confinement] is inhumane and in the long run brutalizes those who impose it as it brutalizes those upon whom it is imposed.”

In assessing the legacy of two monumental Supreme Court rulings on due process protections in the context of solitary confinement, Sandin v. Conner and Wilkinson v. Austin, this Author has wondered whether the Supreme Court, in wrestling with the challenges of solitary confinement—albeit from the detached distance of appellate decision making—was unduly deferential to prison officials as both cases seriously distorted the Court’s traditions of appellate decision making and diluted or limited due process protections. We learned in Celebrating Morrissey that a conservative Chief Justice, Warren Burger, played a key leadership role in securing recognition for prisoners’ rights, with Morrissey v. Brewer’s recognition of due process protections in the context of parole revocation. This pathbreaking 1972 case ended the federal courts’ “hands off” policy with regard to prisoners’ claims concerning the conditions of their confinement.

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