What a Supreme Court justice calls for, someone is usually only too happy to provide.
The court’s most influential member, Justice Anthony M. Kennedy, opined in June that it might be time for the court to take a look at the widespread use of solitary confinement in the nation’s prisons and the “human toll wrought by extended terms of isolation.”
Enter Alfredo Prieto, a multiple killer who has done time on California’s death row and now resides on Virginia’s. “For the last seven years, he has spent 23 hours or more every day alone in a 71-square-foot cell,” according to a Supreme Court petition filed on his behalf by Washington lawyer Michael E. Bern.
Prieto filed his own handwritten lawsuit with a federal court in 2012 that challenged Virginia’s policy of automatically placing prisoners who receive a death sentence in solitary confinement until they are executed — a process that can take years, even decades.
Prieto won initially, when U.S. District Judge Leonie M. Brinkema ordered Virginia officials to determine death row inmates’ confinement conditions on a case-by-case basis or to change the confinement regime to something less restrictive.
A panel of the U.S. Court of Appeals for the 4th Circuit voted 2 to 1 to reverse that decision, saying Virginia does not give death row inmates such options. “Prieto, like any other inmate, can only be deprived of that to which he is entitled,” the panel said.
Now, supported by the Constitutional Accountability Center, a group of mental health experts and some former correctional officials who “have witnessed first-hand the debilitating effects of solitary confinement,” Prieto tells the high court that his case would offer a good opportunity to examine the issue.
He does not ask the court to find that solitary confinement violates the Eighth Amendment’s prohibition of cruel and unusual punishment, although others in Virginia and elsewhere have filed suits making that claim.
Prieto claims that his right to due process prevents Virginia prison officials from automatically assigning him to isolation from the rest of the prison population and even his fellow death-row inmates.
Supreme Court justices often portray themselves as a passive lot — a “reactive” group, Justice Ruth Bader Ginsburg has called it — waiting for legal issues to arise for review.
But they often help the process along, using concurring or dissenting opinions to express interest in cases that present certain topics.
Kennedy could hardly have been more direct in a concurring opinion in June in Davis v. Ayala. He agreed with the majority in rejecting the challenge of a man on California’s death row, but he caused a stir with an unrelated five-page invitation to examine the solitary-confinement issue that drew on the works of Fyodor Dostoevsky and Charles Dickens.
“Research still confirms what this court suggested over a century ago: Years on end of near-total isolation exact a terrible price,” Kennedy wrote, adding that the “common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”
He added: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
He indicated that he was uncomfortable with an inflexible prison policy that mandated solitary confinement, which he said could bring a prisoner “to the edge of madness, perhaps to madness itself.”
Kennedy’s statement said that Hector Ayala, a California man who killed three people, might have spent “all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day.”
It prompted a tart response from Justice Clarence Thomas.
“The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”
So it is safe to say it is not unanimous that the court shares Kennedy’s concerns.
Prieto might be an even less sympathetic defendant than Ayala. Law enforcement officials say he may be connected to as many as nine killings. He was serving time on California’s death row when DNA evidence linked him to the 1988 murders of Rachael Raver and Warren Fulton III near Reston.
Fairfax prosecutors extradited Prieto in 2006, under the theory that Virginia could convict and execute him while his appeals in California dragged on. But that hasn’t happened.
Besides the solitary-confinement lawsuit, Prieto is pursuing a challenge that would save him from execution because he claims to be intellectually disabled.
It is unclear whether Prieto’s case might provide the vehicle Kennedy is looking for, or whether there are enough justices to share his concern to take up the issue. And agreeing to hear a case is no guarantee of outcome.
Another case last term provides a good example of that.
Three times, the court took up the question of whether the federal Fair Housing Act required that lawsuits prove intentional discrimination or just that a policy produced a “disparate impact.” All courts that had looked at the question agreed with government and civil rights groups that disparate impact was sanctioned by the law. The groups and the administration feared the worst when the court seemed to be aggressively reaching out to take the issue.
Two of the cases settled, but when the court finally heard the issue, it agreed with the lower courts — over the objections of the court's most consistent conservatives. Kennedy joined the liberals and wrote the majority opinion.