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Punishment that causes durable impairments of the punished person's brain surely violates the Constitution's Eight Amendment proscription of "cruel and unusual punishments." So, the Supreme Court's three "liberal" justices rightly dissented against the six "conservative" justices' decision not to hear a case concerning the all-too-common prison practice of protracted solitary confinement.
Michael Johnson, imprisoned in Illinois' Pontiac Correctional Center for home invasion and assault, was a mental wreck before prison policy made him more so. The state's Department of Corrections classifies him "seriously mentally ill"; his conditions include severe depression and bipolar disorder.
Johnson sued. A district court granted summary judgment in 2018 in favor of the prison officials, even though the Supreme Court has hitherto found officials liable for "deliberate indifference" to a substantial risk to an inmate's health or safety. A three-judge panel of a federal appellate court in 2022 affirmed the district court's legal error, 2-1. This judgment survived when the full court tied 5-5 in considering it.
Last week the Supreme Court denied Johnson's appeal. The court was not even accepting the prison officials' argument that Johnson's ongoing punishment was an administrative necessity. They made no such argument.
Justice Ketanji Brown Jackson dissented from this denial, joined by Sonia Sotomayor and Elena Kagan. Brown, the first justice to have seen the criminal justice system from the perspective of a practicing public defender, notes that for nearly three years Johnson: "… spent nearly every hour of his existence in a windowless, perpetually lit cell the size of a parking space. His cell was poorly ventilated.
Ordinarily, even Pontiac inmates in solitary confinement are permitted at least eight hours a week of recreation outside their cells. The denials of Johnson's permission were "stacked," so he endured more than three years of restrictions.
Whether prisons should try to be "correctional" institutions -- straighteners of humanity's most crooked timber -- is debatable. But certainly prisons should not make prisoners worse.
If, however, Johnson were mentally competent Pontiac's treatment of him would still have violated the Bill of Rights. The authors of the Eighth Amendment did not include a clause saying cruelty is unacceptable "unless the prisoner is unusually difficult or especially evil."
Conservatives, ever apprehensive about the abuses of power to which empowered people always and everywhere are susceptible, should be acutely alert about potential abuses of prisoners
The Eighth Amendment makes originalists fainthearted. Spare us sermons about the public meaning of "cruelty" in 1790: No court today would sanction some punishments practiced when the amendment was ratified. Prolonged solitary confinement was not imposed then. Today, however, protracted isolation is far from "unusual"; it is now traditional and common.
The court majority's dereliction of duty regarding Johnson illustrates how the labels "liberal" and "conservative" can be inapposite in judicial contexts. The conservatives showed undue deference to government; the liberals correctly construed precedent and the Constitution's original public meaning.