Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.
State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state provision. Some state constitutions also contain additional provisions such as requiring safe and comfortable prisons, recognizing the principles of reformation and rehabilitation, prohibiting unnecessary rigor, or recognizing individual dignity, which might enable even greater judicial scrutiny of solitary confinement. This Article explores those provisions and the justifications for developing independent state court jurisprudence relating to solitary confinement.
Challenging Solitary Confinement Through State Constitutions,
90 U. Cin. L. Rev.
Available at: https://scholarship.law.uc.edu/uclr/vol90/iss2/3
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