LAW REVIEWS— Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

A 2022 article in the Columbia Journal of Law & Social Problems presents both a historical overview of the practice of death-row confinement in the U.S. and the findings of a survey of the conditions on death rows in every jurisdiction with capital punishment in America. Regarding the use of highly restrictive confinement, the author states that “the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values.”

The survey of conditions in the various states found: “Of the twenty-seven state jurisdictions currently operating death rows, approximately half (fourteen) impose either permanent or semi-solitary confinement (i.e., an average of at least twenty hours of solitary confinement per day) on people sentenced to death. Of these states, eleven keep death row population in permanent solitary confinement.” The article’s Appendix contains pertinent details on the conditions on each death row in the country.

The author notes that the use of solitary confinement on death row emerged “without a judge, jury, or legislature ordering it,” and that “many of the nearly two and a half thousand people on America’s death rows will spend an average of seven thousand days sealed for twenty-three hours behind a solid steel door, inside a windowless cell the size of a parking space.”

The article discusses a recent trend away from permanent solitary confinement in many states, with some jurisdictions viewing it through the Eighth Amendment’s lens of the “evolving standards of decency” in determining what constitutes cruel and unusual punishment. Nine jurisdictions have taken steps to end permanent solitary confinement over the past six years (including Virginia, which subsequently abolished capital punishment), while no state has imposed harsher death row conditions. The author notes that “senior corrections officials in jurisdictions that have reformed or semi-reformed death rows universally praised the change.”