Volume 56

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Solitary Confinement

by Merin Cherian

On the surface, it may appear that long-term solitary confinement is far less harsh than more archaic punishments, such as public execution, whipping, or the pillory.13 However, these more dramatic punishments have been replaced by others, like solitary confinement, that are subtler but still depraved. Practices like this make it possible for prison officials to cause prisoners to suffer a great deal of pain, both physically and psychologically, “without provoking public outcry.”
The Supreme Court has yet to decide whether long-term solitary confinement per se violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.16 This Note argues that a proper original understanding of the Clause would eradicate the use of long-term solitary confinement in the United States.

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