Bipartisan Group of 45 Current and Former Prosecutors, Justice Department Officials, Urge SCOTUS to Take Case, Provide Guidance on Constitutional Limits to Solitary Confinement
Prosecutors Argue That Overuse of Solitary Confinement Undermines Law Enforcement, Eroding Trust in Criminal Justice System and Increasing Risk of Recidivism
Washington, D.C., February 15, 2022 – Today, a bipartisan group of 45 current and former federal, state, and local prosecutors and Justice Department officials filed a Supreme Court amicus brief, urging the Court to grant review in Hope v. Harris, a case involving a prisoner’s continued inhumane detention in solitary confinement, currently at 27 years and counting. Drawing on their decades of law enforcement and prosecutorial experience, the amici, represented by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP), argue that overuse of solitary confinement impedes the ability of law enforcement to protect public safety, undermines the rehabilitative goals of the criminal justice system, and hinders law enforcement’s ability to work with foreign nations.
“Amici have a special interest in ‘preserving public confidence in the fairness of the criminal justice system,’” the prosecutors write. “Without the public’s trust and cooperation, prosecutors and law enforcement officials cannot effectively protect public safety. That trust is undermined when community members perceive that aspects of the criminal justice system offend principles of fundamental fairness and human dignity.”
The case, Hope v. Harris, presents a particularly egregious example of solitary confinement overuse. Petitioner Dennis Wayne Hope has been in solitary confinement in a Texas prison for 27 years, spending virtually every waking minute alone in a cell smaller than a parking space. Hope’s prolonged solitary detention has led to hallucinations, chronic pain, and thoughts of suicide. Last year, the Fifth Circuit summarily rejected Hope’s constitutional claim based on the length of his confinement. Now, Hope is asking the Supreme Court to take his case to clarify that a quarter century in solitary confinement can—at least in some circumstances—violate the Eighth Amendment.
Documenting the growing scientific consensus around the long-term psychological harms of prolonged solitary confinement, the prosecutors argue that “[s]ubjecting prisoners to prolonged periods of solitary confinement is not aligned with public understanding of fair and humane punishment.” They also cite the uneven burdens imposed by the practice, noting that “Texas, for example, holds more prisoners for longer times in solitary confinement than any other state prison system,” and that Black and Latino prisoners “are often over-represented in solitary confinement relative to their (over)representation in the general prison population.” Finally, the brief outlines the many ways in which solitary confinement hamstrings law enforcement, for example by increasing recidivism, disincentivizing witness cooperation, and undercutting the United States’ ability to secure extradition as the international community increasingly rejects the practice.
“Prolonged solitary confinement is not only horribly inhumane, it is also counterproductive to the goal of protecting public safety,” said Mary McCord, ICAP’s executive director and former long-time federal prosecutor. “The impact on the mental health of those subjected to lengthy isolation is well documented, often leaving them broken and unprepared to reenter society, leading to increased recidivism upon release. The signers of this brief join the growing international consensus against the practice.”
Georgetown Law’s Institute for Constitutional Advocacy and Protection
The Institute for Constitutional Advocacy and Protection uses strategic legal advocacy to defend constitutional rights and values while working to restore confidence in the integrity of our governmental institutions. A non-partisan institute within Georgetown University Law Center, ICAP’s experienced attorneys use novel litigation tools, strategic policy development, and the constitutional scholarship of Georgetown to vindicate individuals’ rights and protect our democratic processes.