Solitary confinement is widely used in the United States. Most prisoners on death row are automatically – and permanently – housed in isolation for 23-24 hours per day, for years on end. As Justice Kennedy noted in a recent concurring opinion: “Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. 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, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.” But recent years have seen a new and growing awareness and concern about the subject of solitary confinement and the way we treat prisoners.
This talk will discuss the use of solitary confinement, why it is problematic, and the way courts have begun to examine the issue. The course will focus particularly on a recent case from Virginia (Porter v. Clarke), in which the district court for the Eastern District of Virginia became the first court in the country to hold that extreme isolation is cruel and unusual punishment.
Kathryn Marshall Ali received her J.D. from Harvard Law School and her B.A. from the University of California at Berkeley. She is a senior associate at Hogan Lovells in Washington D.C., and has devoted much of her career to litigating capital habeas proceedings and civil rights cases. Beginning in 2015, she led a team litigating a challenge to Virginia’s practice of automatically and permanently housing prisoners on Death Row in solitary confinement. In 2018, the trial court issued a landmark ruling that solitary confinement of the sort imposed on Virginia’s Death Row was cruel and unusual punishment that violated the Eighth Amendment, which the Fourth Circuit Court of Appeals upheld.