Solitary Confinement in The Young Republic
Solitary Confinement in The Young Republic
Solitary Confinement in The Young Republic
David M. Shapiro
CONTENTS
David M. Shapiro∗
America’s first system for punishing criminals with solitary confinement began at the
Walnut Street Jail, an institution that stood right behind Independence Hall in
Philadelphia. Historical and archival evidence from that facility demonstrates that the
unchecked use of solitary confinement in today’s correctional facilities contravenes norms
that prevailed in the Constitution’s founding era. In the 1790s, a robust array of checks
and balances cabined the discretion of corrections officials to isolate prisoners. Judges,
legislatures, and high public officials regulated human isolation at the jail, leaving prison
administrators relatively little power over solitary confinement. Most importantly, long
periods of seclusion could be imposed only by courts acting pursuant to criminal
sentencing statutes. Jail officials had the power to impose solitary confinement for
disciplinary violations, but only for a matter of days or weeks. Today, however, deference
to prison officials has swallowed these constraints. In the present regime, some prisoners
remain isolated for years and decades based on decisions by prison officials that courts
hesitate to second-guess. The historical record casts doubt upon any originalist argument
that the founding generation would have embraced the contemporary regime of judicial
deference in matters of human isolation.
INTRODUCTION
In less than four years, three current and former Justices of the U.S.
Supreme Court have written opinions calling for constitutional limits on
long-term isolation. In 2015, then-Justice Kennedy reached out to dis-
cuss solitary confinement in a case that had almost nothing to do with
the subject.1 Concurring in the opinion of the Court in Davis v. Ayala,2
he opined that in “a case that presented the issue” the judiciary should
“determine whether workable alternative systems for long-term [soli-
tary] confinement exist, and, if so, whether a correctional system should
be required to adopt them.”3
That same year, Justice Breyer dissented from the denial of a stay in
a capital case, arguing that isolating prisoners at length “create[s] [a]
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∗ Clinical Associate Professor of Law, Northwestern Pritzker School of Law; Director, Supreme
Court and Appellate Program, Roderick and Solange MacArthur Justice Center. The ideas in this
Article benefited from feedback from: the Northwestern Faculty Workshop series, Andrew
Koppelman, John McGinnis, Charlotte Crane, Leigh Bienen, Shari Diamond, Margo Schlanger,
Judith Resnik, Maggie Filler, Daniel Greenfield, Arielle Tolman, and the editors of the Harvard
Law Review. The Philadelphia City Archive, the Church of Jesus Christ of Latter-day Saints, and
the Historical Society of Pennsylvania shared archival records regarding the Walnut Street Jail.
Above all, I am grateful to Rosalind Dillon and Lisa Winkler. I could not have written this Article
without their extraordinary dedication, research, and analysis.
1 Davis v. Ayala, 135 S. Ct. 2187, 2193, 2210 (2015) (Kennedy, J., concurring).
2 135 S. Ct. 2187.
3 Id. at 2210.
544
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Accommodation, 1992 BYU L. REV. 857, 862–63; Leonard G. Leverson, Constitutional Limits on
the Power to Restrict Access to Prisons: An Historical Re-examination, 18 HARV. C.R.-C.L. L. REV.
409, 415–17 (1983) (discussing the penitentiary system’s emphasis on systematic inspections);
Thorsten Sellin, Philadelphia Prisons of the Eighteenth Century, 43 TRANSACTIONS AM. PHIL.
SOC’Y 326, 328–29 (1953); and Matthew W. Meskell, Note, An American Resolution: The History
of Prisons in the United States from 1777 to 1877, 51 STAN. L. REV. 839, 846–49 (1999).
11 See Hudson v. McMillian, 503 U.S. 1, 17–29 (1992) (Thomas, J., dissenting).
12 503 U.S. 1.
13 Id. at 19 (Thomas, J., dissenting).
14 See, e.g., Act of Dec. 15, 1796, ch. 2, reprinted in 2 THE STATUTES AT LARGE OF VIRGINIA
5 (Samuel Shepherd ed., Richmond, Samuel Shepherd 1835); Act of Mar. 30, 1798, ch. 56, 1798 N.Y.
Laws 216; Act of Mar. 15, 1805, ch. 120, 1804 Mass. Acts 172; Act of Mar. 15, 1805, ch. 123, 1804
Mass. Acts 179; Act of Mar. 16, 1805, ch. 131, 1804 Mass. Acts 202; Act of Mar. 16, 1805, ch. 133,
1804 Mass. Acts 209; Act of Mar. 16, 1805, ch. 143, 1804 Mass. Acts 240; Act of Nov. 9, 1808, ch.
XXIX, § 11, reprinted in 3 LAWS OF THE STATE OF VERMONT 65 (Rutland, Vermont, Fay,
Davison & Burt 1817).
548 HARVARD LAW REVIEW [Vol. 133:542
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42 Id. at 228.
43 Id.
44 HOWARD, supra note 35, at 213.
45 Id. at 214.
46 HOWARD, supra note 19, at 185.
47 Id. at 202 n.†.
48 Id. at 230.
49 Id. at 202 n.†.
552 HARVARD LAW REVIEW [Vol. 133:542
1790s at the Walnut Street Jail, and the demise of their original system
of solitary confinement many years later.
A. Public Discourse About Solitary Confinement in Philadelphia
This section examines the public discussion of solitary confinement
that flourished in Philadelphia in the 1780s. Intellectual and political
leaders, including Rush and Justice Bradford, championed solitude as a
way to reform criminals and curtail the death penalty. Just as
importantly, they believed that punishment by isolation required strict
limits to prevent cruelty and excess. In this section, I show that the
Philadelphia reformers, drawing on Howard, envisioned a system of
checks and balances that would curb the severity of isolation.
1. The Rise of Incarceration and Prison Reform. — Prior to the
Revolutionary War, incarceration rarely served as a criminal
punishment in America.50 Local authorities “meted out a wide range of
punishments. The most popular sanctions included fines, whippings,
mechanisms of shame (the stock and public cage), banishment, and of
course, the gallows. What was not on the list was imprisonment.”51
Convicts who were not hanged suffered corporal punishment or mone-
tary fines.52 The authorities often used incarceration to prevent pretrial
defendants from fleeing, but only rarely to punish convicts.53
When the war ended in 1783, a group of civic leaders in Philadelphia
spearheaded reforms to scale back capital punishment.54 In the years
that followed, a series of laws enacted by the Pennsylvania legislature
dramatically reduced the number of offenses punished by death, largely
replacing capital punishment with imprisonment.55 As incarceration
became the cornerstone of criminal punishment, the prison system de-
manded new attention.56
In 1787, a group of prominent Philadelphians, many of the same men
who had been advocating to reduce capital punishment, gathered at a
building known as the German School House on Cherry Street and
formed the Philadelphia Society for Alleviating the Miseries of Public
Prisons, or the Pennsylvania Prison Society, as the organization came to
be known.57 Included in this group were Rush, Caleb Lownes, and
Reverend William White.58 Rush has been described as “the leading
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50 BARNES, supra note 10, at 72–73.
51 David J. Rothman, Perfecting the Prison: United States, 1789–1865, in THE OXFORD
HISTORY OF THE PRISON, supra note 21, at 100, 101.
52 See TEETERS, supra note 10, at 7–9.
53 See Barnes, supra note 10, at 36.
54 BARNES, supra note 10, at 81.
55 Id. at 73.
56 See id. at 79.
57 Id. at 81 n.17; VAUX, supra note 10, at 8–9.
58 BARNES, supra note 10, at 82 n.18.
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70 BENJAMIN RUSH, AN ENQUIRY INTO THE EFFECTS OF PUBLIC PUNISHMENTS UPON
CRIMINALS, AND UPON SOCIETY (Philadelphia 1787).
71 Monthly Catalogue, for August, 1787, 77 THE MONTHLY REVIEW; OR, LITERARY
JOURNAL: FROM JULY TO DECEMBER, INCLUSIVE 153, 153 (1787).
72 RUSH, supra note 70, at 25 (emphasis omitted).
73 Id.
74 Id.
75 Id. at 26.
76 See id. at 23, 30.
77 Id. at 30.
78 Id. at 23.
79 Id.
80 THE SOCIETY, ESTABLISHED IN PHILADELPHIA, FOR ALLEVIATING THE MISERIES OF
PUBLIC PRISONS, EXTRACTS AND REMARKS ON THE SUBJECT OF PUNISHMENT AND
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91 Id. at 19 (emphasis omitted) (quoting HOWARD, supra note 19, at 202).
92 HOWARD, supra note 19, at 202 n.†.
93 EXTRACTS AND REMARKS, supra note 80, at 5.
94 See id.
95 Id. at 9, 18.
96 Id.
97 Id. at 4.
98 WILLIAM BRADFORD, AN ENQUIRY HOW FAR THE PUNISHMENT OF DEATH IS
NECESSARY IN PENNSYLVANIA (Philadelphia, T. Dobson 1793), reprinted in 12 AM. J. LEGAL
HIST. 122 (1968).
99 Id.
100 Id. at 132; see BARNES, supra note 10, at 109.
101 BARNES, supra note 10, at 109–10.
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102 See BRADFORD, supra note 98, at 141.
103 Id. at 154.
104 Id. at 174.
105 Id. (quoting HOWARD, supra note 19, at 169).
106 See infra pp. 562–63.
107 See Act of Apr. 18, 1795, ch. MDCCCL, § III [hereinafter 1795 Act], reprinted in 3 LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA 1700–1810, at 246, 247 (Philadelphia, John Bioren
1810).
558 HARVARD LAW REVIEW [Vol. 133:542
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E. KANN, PUNISHMENT, PRISONS, AND PATRIARCHY 141 (2005) (citing to a 1788 Pennsylvania
Mercury article that “reported that a condemned man considered solitude ‘infinitely worse than the
most agonizing death’”); LA ROCHEFOUCAULD-LIANCOURT, supra note 119, at 29–32 (describing
death as less severe than “that most dreaded of all punishments, solitary confinement,” id. at 29);
Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 CRIME
& JUST. 365, 370 (2018) (noting Pennsylvania’s system as illustrative of the “damaging nature” of
solitary confinement). Benjamin Rush even wrote that “a wheelbarrow, a whipping post, nay even
a gibbet, are all light punishments compared with letting a man’s conscience loose upon him in
solitude.” MASUR, supra, at 183 n.35 (quoting Letter from Benjamin Rush to Enos Hitchcock (Apr.
24, 1789)), in 1 LETTERS OF BENJAMIN RUSH 512 (Lyman H. Butterfield ed., 1951).
121 See supra section II.A, pp. 552–57.
122 See KANN, supra note 120, at 135 (describing the penal philosophy of reformers as tied to
rehabilitation, which “required more than time; it also demanded institutional control of all aspects
of inmates’ lives and environments”); id. at 143 (“[A] number of reformers identified [solitary con-
finement] as the seminal source of rehabilitation. . . . It forced the convict to contemplate his ‘forlorn
condition,’ see ‘the wickedness and folly’ of his life, and open up to ‘future amendment.’” (quoting
writing of Richard Vaux)). Benjamin Rush imposed solitary confinement on his own son for twenty-
seven years because he appeared distressed and unkempt after a duel in which he killed his friend.
LISA GUENTHER, SOLITARY CONFINEMENT 9 (2013).
123 BARNES, supra note 10, at 134.
124 Id.; HILLS, supra note 9; TEETERS, supra note 10, at 17.
125 See TEETERS, supra note 10, at 19.
560 HARVARD LAW REVIEW [Vol. 133:542
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126 BARNES, supra note 10, at 135.
127 Id.; cf. VAUX, supra note 10, at 13 (noting that the Society objected to the mixture of debtors
and criminals in the jail).
128 See BARNES, supra note 10, at 135, 331; VAUX, supra note 10, at 13; see also PETER OKUN,
CRIME AND THE NATION 99 (2002).
129 TEETERS, supra note 10, at 28.
130 See id. at 31–33.
131 VAUX, supra note 10, at 13.
132 Act of Sept. 15, 1786, ch. MCCXLI, in 12 THE STATUTES AT LARGE OF PENNSYLVANIA
FROM 1682 TO 1801, at 280, 280 (1906), quoted in BARNES, supra note 10, at 163–64.
133 A.J. LANGGUTH, UNION 1812: THE AMERICANS WHO FOUGHT THE SECOND WAR OF
INDEPENDENCE 20 (2006).
134 CALEB LOWNES, AN ACCOUNT OF THE ALTERATION AND PRESENT STATE OF THE
PENAL LAWS OF PENNSYLVANIA, CONTAINING, ALSO, AN ACCOUNT OF THE GAOL AND
PENITENTIARY HOUSE OF PHILADELPHIA — AND THE INTERIOR MANAGEMENT
THEREOF 6 (Boston, Young & Minns 1799).
135 BARNES, supra note 10, at 86 (quoting SKETCH OF THE PRINCIPAL TRANSACTIONS OF THE
“PHILADELPHIA SOCIETY FOR ALLEVIATING THE MISERIES OF PUBLIC PRISONS,” FROM ITS
ORIGINS TO THE PRESENT TIME 6 (Philadelphia, Merrihew & Thompson 1859)).
136 Id. at 90–91 (quoting Letter from William White et al. to The Representatives of the Freemen
of the Commonwealth of Pennsylvania, in General Assembly Met (Dec. 15, 1788)).
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137 Id. at 91.
138 Act of Apr. 5, 1790, ch. MDV (1790) [hereinafter 1790 Act], reprinted in 2 LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, 1700–1810, at 531 (Philadelphia, John Bioren 1810); see
BARNES, supra note 10, at 91–93.
139 BARNES, supra note 10, at 91–93.
140 See TEETERS & SHEARER, supra note 10, at 15.
141 1790 Act, supra note 138, § VIII, at 533.
142 Id. at 534.
143 Id. at 533; see BARNES, supra note 10, at 136.
144 Documents Accompanying the Commissioners’ Report on Punishment & Prison Discipline:
Answer of the Inspectors to Questions Proposed by the Commissioners (Apr. 19, 1828) [hereinafter
Accompanying Documents], reprinted in REGISTER OF PENNSYLVANIA, supra note 15, at 241.
145 1790 Act, supra note 138, § X, at 534.
146 BARNES, supra note 10, at 121.
147 Id. at 122–23; 1790 Act, supra note 138, § XXIII, at 538.
148 1790 Act, supra note 138, § X, at 534.
149 Id. § XXIV, at 539.
562 HARVARD LAW REVIEW [Vol. 133:542
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150 TEETERS, supra note 10, at 52.
151 Id.
152 See LOWNES, supra note 134, at 11.
153 Act of Sept. 23, 1791, ch. MDLXXII, § XVIII (1791) [hereinafter 1791 Act], reprinted in 4
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, 1700–1802, at 82 (Philadelphia, M. Carey
& J. Bioren 1803); BARNES, supra note 10, at 123.
154 1790 Act, supra note 138, § XXI, at 537.
155 Sellin, supra note 10, at 329.
156 Id.; see also LOWNES, supra note 134, at 9 (stating that the ground floors of a portion of the
prison “were formerly occupied as places of greater security, upon the general principle of dungeons,
but have not been used for some time”); TEETERS, supra note 10, at 49.
157 GEORGE F. COLE, CHRISTOPHER E. SMITH & CHRISTINA DEJONG, CRIMINAL
JUSTICE IN AMERICA 351 (9th ed. 2018); see 2 ENCYCLOPEDIA OF PRISONS AND
CORRECTIONAL FACILITIES 1026 (Mary Bosworth ed., 2005); see also TODD R. CLEAR,
MICHAEL D. REISIG & GEORGE F. COLE, AMERICAN CORRECTIONS 46 (10th ed. 2013).
158 1790 Act, supra note 138, § XXI, at 537.
159 Id.
160 Id.
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 563
the solitary cells for more than six days.161 In sum, the law restricted
the discretion of prison officials by denying them authority to sanction
prisoners with even a week of isolation. (As will be shown in Part III,
today’s prison officials have the power to impose solitary confinement
for years on end for disciplinary and management reasons.)
3. The 1794 Act. — In 1794, the legislature enacted An Act for the
Better Preventing of Crimes, and for Abolishing the Punishment of
Death in Certain Cases.162 The Act abolished capital punishment for
most offenses and established incarceration as the predominant criminal
penalty.163 “[P]unishment of death,” the preamble announced, “ought
never to be inflicted, where it is not absolutely necessary to the public
safety.”164
Most importantly for purposes of this Article, the 1794 Act estab-
lished solitary confinement for periods of months or years as the domain
of criminal punishment controlled by courts and the legislature. This
contrasted with solitary confinement for a matter of days, which, as we
have seen, was the domain of prison discipline, in which jail officials
enjoyed some discretion.
In the domain of criminal punishment, sentencing courts had sub-
stantial — but not unbounded — control over longer-term solitary con-
finement. The 1790 Act had reserved the isolation cells for “hardened
and atrocious offenders” but did not specify who fit the bill.165 The 1794
Act, in contrast, created a clearly defined solitary confinement sentenc-
ing regime based on proportionality.166 Only those convicted of the most
serious crimes (principally felonies punished by death until 1786) were
eligible for solitary confinement.167 Thus, consistent with the recom-
mendations of Rush and Justice Bradford,168 it was for the courts and
the legislature to decide how long a prisoner would spend in solitude.169
To define which crimes are punishable with solitary confinement,
section XI of the 1794 Act cross-references the previous section of the
statute, section X, which refers to “any crime (except murder of the first
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161 Id.; see also ROBERT J. TURNBULL, A VISIT TO THE PHILADELPHIA PRISON 40–41
(Philadelphia 1797) (“As to the quantum of confinement necessary to reform a prisoner, it is deter-
mined at the discretion of the jailer who is notwithstanding obliged to inform the inspectors of it as
soon as convenient. For a criminal who refuses to labour, it is generally forty-eight hours, and for
other offences in a like proportion, according to the exigence of the case.”).
162 Act of Apr. 22, 1794, ch. MDCCLXVI (1794) [hereinafter 1794 Act], reprinted in 3 LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA 1700–1810, supra note 107, at 186.
163 See id. at 186–91.
164 Id., pmbl., at 186–87.
165 1790 Act, supra note 138, § VIII, at 533–34.
166 See 1794 Act, supra note 162, §§ VII, XI, XIII, at 188–90.
167 Id. §§ X, XI, at 189.
168 See supra pp. 553, 557.
169 1794 Act, supra note 162, § XI, at 189.
564 HARVARD LAW REVIEW [Vol. 133:542
degree,) which now is, or on the fifteenth day of September, one thou-
sand seven hundred and eighty-six, was capital, or a felony of death,
without benefit of clergy,” in addition to a group of counterfeiting
crimes.170 The crimes punishable by death in 1786 included arson, bur-
glary, murder, rape, and robbery.171 In essence, these provisions com-
manded that the most serious crimes (with the exception of first-degree
murder, which remained capital) would now be punished with solitary
confinement rather than death. Any crimes not encompassed within
section XI’s reference to section X — that is, less serious crimes — could
not be punished with solitary confinement.172 The statute provided that
a prisoner would remain secluded “for such part or portion of the term
of his or her imprisonment, as the court in their sentence shall direct
and appoint.”173
The 1794 Act not only defined which crimes merited solitary
confinement but also established a solitary confinement sentencing
range for those crimes.174 For prisoners convicted of crimes that
required isolation, a mathematical rule bound the court: the length of
solitary confinement could not be less than one-twelfth, nor more than
one-half, of the total sentence.175 The rule is contained in section XI:
Sect. XI.: And be it further enacted by the authority aforesaid, That
every person convicted of any of the crimes last aforesaid, and who shall be
confined in the gaol and penitentiary-house aforesaid, shall be placed and
kept in the solitary cells thereof, on low and coarse diet, for such part or
portion of the term of his or her imprisonment, as the court in their sentence
shall direct and appoint: Provided, That it be not more than one half, nor
less than one twelfth part thereof . . . .176
That the statute was understood to include the limits described
above — both the reservation of solitary confinement for prior capital
offenses and a solitary confinement sentencing range for such crimes —
is confirmed by the Duke of La Rochefoucauld, who visited Walnut
Street in 1795.177 He reported that for those “convicted of crimes of less
importance, . . . [the] sentence does not include the above article of soli-
tary confinement.”178 On the other hand, for “[t]hose condemned for
crimes [that previously were punishable by] death,” the “sentence always
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170 Id. §§ X, XI, at 189.
171 Lawrence Henry Gipson, The Criminal Codes of Pennsylvania: The Laws of the Duke of York;
The Laws of Chester (1682); The Code of 1701; The Law of 1718, 6 J. AM. INST. CRIM. L. &
CRIMINOLOGY 323, 335 tbl.II (1915).
172 See White v. Commonwealth, 1 Serg. & Rawle 139, 140–41 (Pa. 1814) (opinion of Tilghman,
C.J.).
173 1794 Act, supra note 162, § XI, at 189.
174 See id.
175 Id.
176 Id.
177 IGNATIEFF, supra note 20, at 70.
178 LA ROCHEFOUCAULD-LIANCOURT, supra note 119, at 9–10.
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Docket, an ongoing ledger that lists the following information for each
individual admitted to the jail: name, crime, date of birth, terms of the
sentence, identity of the prosecutor, age of the prisoner, description of
the prisoner (usually including race and place of birth), and when and
how the prisoner was discharged.192 The Appendix shows a total of
twenty-nine individuals sentenced to solitary confinement at the Walnut
Street Jail from 1795 to 1800. During this period, a total of 748 people
were committed to the jail.193
Most prison sentences did not include solitary confinement and
therefore are not included in the Appendix. In cases where the sentence
did require solitary confinement, the ratio of the solitary period to the
overall sentence can be readily calculated from the information in the
Prison Sentence Docket. As the Appendix shows, judges usually sen-
tenced closer to the minimum ratio of one-twelfth of the sentence than
to the maximum ratio of one-half of the sentence.
6. The Execution of Solitary Sentences. — Even when the courts
pronounced a sentence that included isolation, it may not have been
meted out in full. The Appendix shows three lengthy outliers from the
other sentences — two solitary confinement sentences of six years, and
one of nine years. But some evidence suggests that as late as 1827, no
one actually spent more than approximately sixteen months in solitary
confinement in Pennsylvania.194 In that year, the inspectors wrote: “We
have known a convict to have been confined within a solitary cell up-
wards of sixteen months, and this is the longest time.”195
In the same year, John Sergeant (who had represented Pennsylvania
in the U.S. House of Representatives and would later be Henry Clay’s
running mate in the 1832 presidential election196) gave further support
to the idea that no one had yet experienced multiple years of solitary
confinement.197 The hypothesis that “continued solitude for a consider-
able length of time”198 might be “intolerable,” Sergeant wrote, had
“never been fairly tested by experiment.”199 Based on the inspectors’
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192 Prison Sentence Docket (on file with author); see also Leslie C. Patrick-Stamp, The Prison
Sentence Docket for 1795: Inmates at the Nation’s First State Penitentiary, 60 PA. HIST. 353, 354–
55 (1993). Professor Patrick-Stamp notes some discrepancies between the Prison Sentence Docket
and a separate document that refers to some of the same defendants, the Prisoners for Trial Docket.
Id. at 356. The Prisoners for Trial Docket does not include sentences. See id. at 355.
193 Accompanying Documents, supra note 144, at 246.
194 Id. at 241.
195 Id.
196 Sergeant, John, (1779–1852), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS, 1774–
PRESENT, http://bioguide.congress.gov/scripts/biodisplay.pl?index=S000246 [https://perma.cc/
597A-P9TN].
197 See Letter from Hon. John Sergeant (1827), quoted in VAUX, supra note 10, at 25–26.
198 Id. at 26.
199 Id. at 25.
568 HARVARD LAW REVIEW [Vol. 133:542
report and Sergeant’s letter, it appears likely that even convicts sen-
tenced to prolonged solitary confinement did not suffer the full
sanction.200
Assuming that the jailers did not always carry out solitary confine-
ment sentences in full, it may not have been for the same reason that
sentencing judges and the legislature limited solitary confinement. The
statutes reflect the legislature’s intent to restrict the duration of solitary
confinement as both a disciplinary measure and a criminal sentence.201
Judicial sentences also suggest a conscious attempt to shorten periods
spent in solitary.202 In contrast, the jail’s incomplete execution of soli-
tary sentences may have been an ad hoc response to resource constraints.
As prisoners flooded to the jail, housing multiple prisoners in the same
cell became unavoidable.203
C. The Abandonment of Restraint in the Late 1820s
This section shows that the checks and balances established in the
1790s were eroded in the Jacksonian period, when Pennsylvania rejected
its previous philosophy of restraint and embraced an ideology of
more prolonged isolation. Existing scholarship often assumes that
Pennsylvania’s practice of solitary confinement in the 1790s resembled
the harsher isolation that took hold decades later. This section chal-
lenges that familiar narrative.
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200 It should be noted that there is also countervailing evidence on this point. See Skidmore,
supra note 16, at 172 (suggesting “frequent exceptions occurred . . . in which the prisoner, immedi-
ately on admission, was conducted to his cell, and remained in it until his discharge from prison”
(omission in original) (quoting ROBERTS VAUX, REPLY TO TWO LETTERS OF WILLIAM ROSCOE,
ESQUIRE, OF LIVERPOOL, ON THE PENITENTIARY SYSTEM OF PENNSYLVANIA 7
(Philadelphia, Jesper Harding 1827))); see also LA ROCHEFOUCAULD-LIANCOURT, supra note
119, at 10–11 (“The inspectors of the prison have, however, the liberty of modifying the seasons of
this confinement, provided nevertheless, that the time mentioned in the sentence is strictly com-
pleted within the course of the detention.”).
201 See supra p. 563.
202 See supra pp. 563–67.
203 See Skidmore, supra note 16, at 172 (“As a result of the crowded population, the prescribed
system of solitary confinement was not given an extensive trial. Vaux mentions ‘that not one-third
of the criminals . . . could be accommodated at any one time in separate apartments. . . . Alternate
seclusion and association were, therefore, indispensable, as a general rule . . . .’” (first and second
omissions in original) (quoting VAUX, supra note 200, at 7)). One cause for the shortened solitary
sentences may be that some prisoners were pardoned altogether after serving only a portion of their
sentence in order to alleviate overcrowding. Report on Punishment, supra note 15, at 208 (“The
enormous increase in the number of convicts, and the insufficiency of the prison accommodations
have, we understand, reduced the Inspectors to the necessity of applying, annually, for the pardon
of a number of the convicts, to make room for others; and by this means it has happened, that the
average term of imprisonment actually passed, has been far below the amount inflicted by the sen-
tence of the courts.”).
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sentence of five months for second-degree murder in 1796 compared to four to twelve years for a
first offense under the 1829 law. See 1829 Act, supra note 211, § 4, at 341–46; BARNES, supra note
10, at 112–13; infra Appendix. One solitary sentence imposed in the late 1790s would have been on
the high end of the range established in 1829: nine years for second-degree murder, compared to a
four-to-twelve-year range for a first offense under the 1829 law. See infra Appendix; BARNES,
supra note 10, at 112–13. The docket entries for 1795–1800 do not reveal which solitary sentences
were imposed for first offenses, but even if all of them were for first offenses, on the whole these
sentences were lenient by comparison to those of the 1829 Act.
213 See BARNES, supra note 10, at 156–59.
214 TEETERS & SHEARER, supra note 10, at 78. (Cherry Hill is another name for Eastern State.)
215 Rothman, supra note 51, at 106. While solitude was complete, the cells were large by current
standards (eight feet by twelve feet with ceilings that reached sixteen feet). VAUX, supra note 10, at
24 n.*. Each prisoner also had an individual outdoor yard measuring eight feet by twenty feet. Id.
216 G. DE BEAUMONT & A. DE TOQUEVILLE, ON THE PENITENTIARY SYSTEM IN THE
UNITED STATES, AND ITS APPLICATION IN FRANCE 5 (Francis Lieber ed. & trans.,
Philadelphia, Carey, Lea & Blanchard 1833).
217 Rothman, supra note 51, at 106.
218 BARNES, supra note 10, at 157.
219 Scholars have offered different explanations for this change in penological thought and legis-
lation. One theory is that Americans in the early years of the Republic viewed crime largely as a
relic of the Old World, which democracy would eliminate. See Rothman, supra note 51, at 102–05.
The persistence of widespread criminality well past the Founding, combined with fears of a fraying
social order, frustrated those assumptions, and drove forward a more draconian system of incarcer-
ation. Id. Backlash against immigration and rapid population growth may also have been at play.
See Samuel H. Pillsbury, Understanding Penal Reform: The Dynamic of Change, 80 J. CRIM. L. &
CRIMINOLOGY 726, 735 (1989); Accompanying Documents, supra note 144, at 260 (“Europe then
involved in wars, continued from time to time to pour in upon us a population to a considerable
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 571
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
234 134 U.S. 160 (1890).
235 See id. at 161–62.
236 Id. at 167.
237 Id.
238 Id. at 164.
239 See id. at 174.
240 Id. at 168.
241 See, e.g., TERRY ALLEN KUPERS, SOLITARY: THE INSIDE STORY OF SUPERMAX
ISOLATION AND HOW WE CAN ABOLISH IT 21 (2017); Reiter, supra note 229, at 80.
242 Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An Eighth Amendment Anal-
ysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, 90
DENV. U. L. REV. 1, 12 (2012); see also id. at 11–12 (“[E]very state that tried the Pennsylvania
model between 1830 and 1880 subsequently abandoned it within a few years, with the exception of
Pennsylvania. By the 1880s, other than [Eastern State Penitentiary] itself, which continued to em-
ploy the ‘silent model’ until 1913, prisons based on the Pennsylvania model had completely disap-
peared. Prolonged solitary confinement as a method of rehabilitation, in other words, was deter-
mined to be a profound failure. The systematic use of prolonged solitary confinement in
correctional systems in the United States remained largely dormant through most of the twentieth
century. Likewise, even the selective use of extended solitary confinement as a means of imposing
discipline within relatively traditional prisons began to lose favor. Authors of a study on prison
psychiatry in 1939 declared, perhaps optimistically, that around-the-clock, prolonged solitary con-
finement was no longer practiced by any ‘civilized nation.’” (footnotes omitted)).
243 See KUPERS, supra note 241, at 21; Hafemeister & George, supra note 242, at 12.
244 See KUPERS, supra note 241, at 21.
574 HARVARD LAW REVIEW [Vol. 133:542
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HUFFPOST (Aug. 6, 2014), https://www.huffingtonpost.com/entry/solitary-inmates-exercise-nyc_
n_5655953.html [https://perma.cc/Y7PD-YU5A]. An oversight board in New York City found that
“access to recreation time . . . is elusive in large part because guards assigned to escorting inmates
to and from recreation frequently fail to notify prisoners in the morning to sign up.” Id.
262 See Solitary Confinement Facts, AM. FRIENDS SERV. COMM., https://www.afsc.org/re-
source/solitary-confinement-facts [https://perma.cc/9XTY-SGY9].
263 FAQ, SOLITARY WATCH, http://solitarywatch.com/facts/faq [https://perma.cc/7HCJ-RU69].
264 Angela A. Allen-Bell, Perception Profiling & Prolonged Solitary Confinement Viewed
Through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become Vis-
ually Challenged, and Justice Becomes Legally Blind, 39 HASTINGS CONST. L.Q. 763, 769 (2012)
(quoting Laura Sullivan, In U.S. Prisons, Thousands Spend Years in Isolation, NPR (July 26, 2006,
5:36 PM), https://www.npr.org/templates/story/story.php?storyId=5582144 [https://perma.cc/
MHN8-TPCM]); accord GUENTHER, supra note 122, at 163.
265 ALISON SHAMES ET AL., VERA INST. OF JUSTICE, SOLITARY CONFINEMENT:
COMMON MISCONCEPTIONS AND EMERGING SAFE ALTERNATIVES 10 (2015), https://storage.
googleapis.com/vera-web-assets/downloads/Publications/solitary-confinement-common-misconceptions-
and-emerging-safe-alternatives/legacy_downloads/solitary-confinement-misconceptions-safe-
alternatives-report_1.pdf [https://perma.cc/M375-R2MC].
266 GUENTHER, supra note 122, at 163.
267 Haney, supra note 259, at 126.
268 GUENTHER, supra note 122, at 163.
269 Id.
270 SHAMES ET AL., supra note 265, at 10; Elizabeth Bennion, Banning the Bing: Why Extreme
Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741, 742–43 (2015).
578 HARVARD LAW REVIEW [Vol. 133:542
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271 See Allen-Bell, supra note 264, at 769; Bennion, supra note 270, at 742–43.
272 Bennion, supra note 270, at 742; accord Allen-Bell, supra note 264, at 769 (stating that solitary
confinement prisoners “are often housed in small, windowless cells with hardly any natural light”).
273 SHAMES ET AL., supra note 265, at 8.
274 Id.
275 Id.; see also CAROLINE ISAACS & MATTHEW LOWEN, AM. FRIENDS SERV. COMM. —
ARIZ., BURIED ALIVE: SOLITARY CONFINEMENT IN ARIZONA’S PRISONS AND JAILS 11
(2007) (“Prisoners often complain of the lights being left on 24 hours per day, causing them to lose
track of time entirely.”).
276 Atul Gawande, Hellhole, NEW YORKER (Mar. 23, 2009), https://www.newyorker.com/
magazine/2009/03/30/hellhole [https://perma.cc/9Q2C-QP8P].
277 See THE LIMAN PROGRAM, YALE LAW SCH. & ASS’N OF STATE CORR. ADM’RS, TIME-
IN-CELL: THE ASCA-LIMAN 2014 NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION
IN PRISON 42 (2015) [hereinafter 2014 ASCA-LIMAN SURVEY]; Rienzi, supra note 261; Solitary
Inmates Don’t Get Legally Required Amount of Exercise in NYC Jails, supra note 261.
278 See Haney, supra note 259, at 126; Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement
and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD. PSYCHIATRY
L. 104, 104 (2010). A national survey of administrative segregation conditions found that “[i]n the
majority of jurisdictions, the time allotted per week ranged from 5 to 7 hours; in the 36 identifying
a standard amount for all people in administrative segregation, the median amount of exercise
permitted was 5 hours per week.” 2014 ASCA-LIMAN SURVEY, supra note 277, at 41.
279 GUENTHER, supra note 122, at 163.
280 See 2014 ASCA-LIMAN SURVEY, supra note 277, at 47.
281 Hafemeister & George, supra note 242, at 37.
282 See William Blake, A Sentence Worse Than Death, in HELL IS A VERY SMALL PLACE:
VOICES FROM SOLITARY 25, 30 (Jean Casella, James Ridgeway & Sarah Shourd eds., 2016).
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 579
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
283 See KATIE ROSE QUANDT, THE ACLU OF NEV., SOLITARY WATCH & NEV. DISABILITY
ADVOCACY & LAW CTR., UNLOCKING SOLITARY CONFINEMENT: ENDING EXTREME
ISOLATION IN NEVADA STATE PRISONS 30 (2017).
284 Id.
285 See, e.g., Ana Ceballos, Florida’s Prison System Is “Widely Overusing” Solitary Confinement
to Punish Inmates, Lawsuit Says, ORLANDO WEEKLY (May 8, 2019, 2:45 PM), https://www.
orlandoweekly.com/Blogs/archives/2019/05/08/floridas-prison-system-is-widely-overusing-solitary-
confinement-to-punish-inmates-lawsuit-says [https://perma.cc/D5NF-25CR] (quoting a
Department of Corrections spokeswoman saying that solitary confinement is used for security
reasons).
286 David C. Pyrooz, Using Restrictive Housing to Manage Gangs in U.S. Prisons, U.S.
DEP’T OF JUSTICE (June 30, 2018), https://www.nij.gov/topics/corrections/institutional/Pages/
using-restrictive-housing-to-manange-gangs-in-us-prisons.aspx [https://perma.cc/A83A-S84B].
287 ALLEN BECK, U.S. DEP’T OF JUSTICE, USE OF RESTRICTIVE HOUSING IN U.S.
PRISONS AND JAILS, 2011–12, at 1 (2015).
288 Why Reducing Solitary Confinement Helps Inmates, Makes Prisons Safer,
CORRECTIONSONE (Feb. 5, 2016), https://www.correctionsone.com/facility-design-and-
operation/articles/72195187-why-reducing-solitary-confinement-helps-inmates-makes-prisons-safer
[https://perma.cc/694S-EPG3]; see also Reassessing Solitary Confinement II: The Human Rights,
Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on the Constitution, Civil
Rights and Human Rights of the S. Comm. on the Judiciary, 113th Cong. (2014) (testimony of Marc
A. Levin, Esq., Director of the Center for Effective Justice at the Texas Public Policy Foundation)
https://www.judiciary.senate.gov/imo/media/doc/02-25-14LevinTestimony.pdf [https://perma.cc/
6J4G-KAP8].
289 Ryan M. Labrecque, The Effect of Solitary Confinement on Institutional Misconduct: A Longi-
tudinal Evaluation 118 (July 2, 2015) (unpublished Ph.D. dissertation, University of Cincinnati),
https://www.ncjrs.gov/pdffiles1/nij/grants/249013.pdf [https://perma.cc/WQP5-JPV2]; see also
Benjamin Steiner & Calli M. Cain, The Relationship Between Inmate Misconduct, Institutional
Violence, and Administrative Segregation: A Systematic Review of the Evidence, in RESTRICTIVE
HOUSING IN THE U.S. 165, 179 (U.S. Dep’t of Justice ed., 2016) (“A greater use of segregation . . . is
not associated with reductions in facility or systemwide misconduct and violence.”).
580 HARVARD LAW REVIEW [Vol. 133:542
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290 Haney, supra note 259, at 130.
291 Id. at 130–31 (citations omitted); see also Haney, supra note 120, at 370 (noting “the broad
consensus that solitary confinement has substantial negative psychological effects on prisoners”).
One notable exception, often called the “Colorado Study,” found limited psychological harm — and
even some improvement — associated with solitary confinement. MAUREEN L. O’KEEFE ET AL.,
ONE YEAR LONGITUDINAL STUDY OF THE PSYCHOLOGICAL EFFECTS OF ADMINISTRATIVE
SEGREGATION, at ii (2010). That study, however, has been described as “riddled with serious
methodological problems that limited its value and made the meaning of the results impossible to
decipher.” Haney, supra note 120, at 369; see also id. at 378–98.
292 Bennion, supra note 270, at 743. One expert on inmate mental health found that “for many
of the inmates so housed, incarceration in solitary cause[s] either severe exacerbation or recurrence
of preexisting illness, or the appearance of an acute mental illness in individuals who had previously
been free of any such illness.” Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22
WASH. U. J.L. & POL’Y 325, 333 (2006).
293 Bennion, supra note 270, at 757. To commit suicide, one solitary confinement prisoner “stood
on top of the cement bunk and dove headfirst into the toilet, over and over, until he crushed his
skull in.” Nathaniel Penn, Buried Alive: Stories from Inside Solitary Confinement, GQ
(Mar. 2, 2017), https://www.gq.com/story/buried-alive-solitary-confinement [https://perma.cc/
AQ3L-NAXQ]. Another recounts witnessing “[a]n older man cut his wrists. He filled a Styrofoam
cup with blood and flung it on the glass of the door and all over his room, then lay down and died.
I watched all of this through the crack on the side of my cell door.” Id.
294 One inmate writes: “I’ve had these cell walls make me see delusions. I’ve tried to kill myself
a few times. I’ve smeared my own blood on my cell walls and ceiling. I would cut myself just to
see my own blood.” Penn, supra note 293. Another “insert[s] paper clips completely into his abdo-
men — to relieve his anxiety and to be removed from his cell for medical treatment.” SASHA
ABRAMSKY & JAMIE FELLNER, HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND
OFFENDERS WITH MENTAL ILLNESS 145 (2003), quoted in Elizabeth Alexander, “This Experi-
ment, So Fatal”: Some Initial Thoughts on Strategic Choices in the Campaign Against Solitary
Confinement, 5 U.C. IRVINE L. REV. 1, 13 (2015). A former Illinois solitary confinement prisoner
would “routinely mutilate[] himself, and at one point cut off one of his testicles and hung it from a
string on his cell door.” Jean Casella & James Ridgeway, Illinois Prisoner Says Years of Solitary
Confinement Caused Mental Illness, Self-Mutilation, SOLITARY WATCH (Sept. 2, 2011), http://
solitarywatch.com/2011/09/02/illinois-inmate-claims-years-of-solitary-confinement-have-led-to-
mental-illness-and-self-mutilation/ [https://perma.cc/4X2D-MN4B].
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 581
Solitary confinement in modern prisons can last only a few weeks for
some prisoners,305 but others face terms that far exceed anything imag-
inable at the Walnut Street Jail. In New Mexico, as of 2013, the average
supermax term approached three years.306 In Texas, as of 2015, the
average administrative segregation term was almost four years, with
over 100 prisoners remaining there for over twenty years.307 In
California, as of 2011, over 500 prisoners at the supermax prison had
lived in isolation for over ten years.308 At Red Onion State Prison in
Virginia, solitary terms ranged from two weeks to almost seven years as
of 2012.309 The fifty-two prisoners in the United States executed in 2009
spent an average of fourteen years in solitary confinement prior to
death.310 A 2018 study of forty-three prison systems found that nearly
2000 individuals remained in restrictive housing (where they were kept
in their cells for twenty-two hours or more each day) for over six
years.311 One prisoner at the federal supermax prison in Colorado lived
in isolation for thirty-six years, until his death in 2019.312 Another in-
mate spent forty-three years in solitary.313 A third remained in seclusion
for forty-two years and died three days after release.314
In the past several years, many state prison systems have made sig-
nificant progress in curtailing the length and arbitrariness of solitary
confinement.315 Nonetheless, today’s reality presents a stark contrast
with seclusion in the early Republic. In 1827, Sergeant called the effects
of long-term solitary confinement “conjectural”316 and “never . . . fairly
tested by experiment.”317 In 2019, the experiment is conducted on thou-
sands of people each day.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
305 2018 ASCA-LIMAN SURVEY, supra note 255, at 14.
306 THE N.M. CTR. ON LAW & POVERTY & THE ACLU OF N.M., INSIDE THE BOX: THE
REAL COSTS OF SOLITARY CONFINEMENT IN NEW MEXICO’S PRISONS AND JAILS 5 (2013).
307 ACLU OF TEX. & TEX. CIVIL RIGHTS PROJECT — HOUSTON, A SOLITARY FAILURE:
THE WASTE, COST AND HARM OF SOLITARY CONFINEMENT IN TEXAS 2 (2015).
308 Reiter, supra note 249, at 119.
309 Anita Kumar, Va. Prisons’ Use of Solitary Confinement Is Scrutinized, WASH. POST (Jan. 7,
2012), https://www.washingtonpost.com/local/dc-politics/va-prisons-use-of-solitary-confinement-is-
scrutinized/2011/11/28/gIQAkKHuhP_story.html?noredirect=on&utm_term=.180bc8572303 [https://
perma.cc/WXV3-NPQ4].
310 Rachel Meeropol, Death Row: America’s Torture Chamber, THE GUARDIAN (Oct. 10, 2011,
1:00 PM), https://www.theguardian.com/commentisfree/cifamerica/2011/oct/10/death-row-torture-
chamber [https://perma.cc/2B37-NTNX].
311 2018 ASCA-LIMAN SURVEY, supra note 255, at 4–5.
312 Sam Roberts, Thomas Silverstein, Killer and Most Isolated Inmate, Dies at 67, N.Y. TIMES
(May 21, 2019), https://nyti.ms/2WWME9X [https://perma.cc/JM26-AQJX].
313 Rice, supra note 8.
314 Helen Vera, After 42 Years in Solitary, Herman Wallace Dies a Free Man, ACLU (Oct. 4,
2013, 1:29 PM), https://www.aclu.org/blog/smart-justice/mass-incarceration/after-42-years-solitary-
herman-wallace-dies-free-man [https://perma.cc/EB5B-ZKGF].
315 2018 ASCA-LIMAN SURVEY, supra note 255, at 60–66.
316 Letter from Hon. John Sergeant, supra note 197, at 26.
317 Id. at 25.
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 583
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
318 Reiter, supra note 249, at 91.
319 Id.
320 See supra section II.B.3, pp. 563–65.
321 See supra section II.B.6, pp. 567–68.
322 See Reiter, supra note 249, at 93.
323 18 U.S.C. § 3621(a) (2012).
324 Id. § 3621(b).
325 See 28 C.F.R. §§ 541.20–.33 (2019).
584 HARVARD LAW REVIEW [Vol. 133:542
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335 See supra pp. 561–62.
336 See Dave Maass, Hundreds of South Carolina Inmates Sent to Solitary Confinement over
Facebook, ELECTRONIC FRONTIER FOUND. (Feb. 12, 2015), https://www.eff.org/deeplinks/
2015/02/hundreds-south-carolina-inmates-sent-solitary-confinement-over-facebook [https://perma.
cc/YFC6-PEKR].
337 See GUENTHER, supra note 122, at 162–63; N.Y. CIVIL LIBERTIES UNION, BOXED IN:
THE TRUE COST OF EXTREME ISOLATION IN NEW YORK’S PRISONS 20, 24 (2012); 2018
ASCA-LIMAN SURVEY, supra note 255, at 5 (“Black prisoners comprised a greater percentage of
the restrictive housing population than they did the total custodial population.”). See generally
Armstrong, supra note 252, at 761 (analyzing the argument that implicit racial bias may affect
prison discipline); Eric D. Poole & Robert M. Regoli, Race, Institutional Rule Breaking, and Disci-
plinary Response: A Study of Discretionary Decision Making in Prison, 14 LAW & SOC’Y REV.
931, 934–40 (1980) (reporting racial disparities in the imposition of discipline on inmates).
338 2014 ASCA-LIMAN SURVEY, supra note 277, at 8 (quoting HOPE METCALF ET AL.,
ADMINISTRATIVE SEGREGATION, DEGREES OF ISOLATION, AND INCARCERATION 5 (2013)).
339 Armstrong, supra note 252, at 771.
586 HARVARD LAW REVIEW [Vol. 133:542
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362 See Reinert, supra note 250, at 929, 943; see also sources cited infra notes 375–386 (discussing
the limited scope of procedural checks on disciplinary and administrative segregation).
363 515 U.S. 472 (1995).
364 Id. at 475.
365 Id. at 475–76.
366 See id. at 476–77.
367 Id. at 486.
368 Id. at 487.
369 545 U.S. 209 (2005).
370 Id. at 223–24.
371 Id. at 214.
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 589
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
ended up being seven months); Peoples v. Fischer, No. 11 Civ. 2694, 2012 WL 1575302, at *1–2
(S.D.N.Y. May 3, 2012) (inmate punished with a three-year solitary sentence for violating prison
rule that stated he was not allowed to possess certain documents, including a copy of the Uniform
Commercial Code).
391 For a discussion of courts’ deference to the judgment of prison administrators, see Sharon
Dolovich, Forms of Deference in Prison Law, 24 FED. SENT’G REP. 245 (2012).
392 Gibbs v. Lynn, No. 93-3017, 1994 WL 397686, at *1, *3 (5th Cir. July 12, 1994); see also
Gambina v. Fed. Bureau of Prisons, 529 F. App’x 900, 901, 903 (10th Cir. 2013) (affirming grant of
summary judgment to prison officials who sentenced a prisoner to administrative segregation for
sixty months for attempted escape); Leslie v. Doyle, 125 F.3d 1132, 1135 (7th Cir. 1997) (finding that
prisoner sentenced to fifteen days disciplinary segregation, allegedly for no reason at all, did not
state a claim because “[a] brief stay in disciplinary segregation is, figuratively, a kind of slap on the
wrist that does not lead to a cognizable Eighth Amendment claim”).
393 Allen-Bell, supra note 264, at 772–73 (citations omitted).
394 Id. at 773 (citations omitted).
395 See, e.g., Shapiro & Hogle, supra note 252, at 2036–60; see also Margo Schlanger, Inmate
Litigation, 116 HARV. L. REV. 1555, 1606 (2003) (noting that Eighth Amendment doctrine requires
prisoners to prove mental culpability on the part of prison officials, not simply poor prison condi-
tions); Ken Strutin, Litigating from the Prison of the Mind: A Cognitive Right to Post-conviction
Counsel, 14 CARDOZO PUB. L. POL’Y & ETHICS J. 343, 355 (2016).
396 Shapiro & Hogle, supra note 252, at 2058–59.
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 593
CONCLUSION
The prison reformers of the 1790s would be dismayed by what soli-
tary confinement has become. They restrained the cruelty of isolation
with a system of checks and balances that limited administrative discre-
tion, but little remains of that regime. The largely unrestricted power
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
405 Armstrong, supra note 252, at 759.
406 David C. Fathi, The Challenge of Prison Oversight, 47 AM. CRIM. L. REV. 1453, 1460 (2010).
407 Id. at 1454.
408 See, e.g., Thomas et al., supra note 342, at 41, 44 (discussing Illinois prisons).
409 Id. at 47.
410 Id. at 44.
411 Gutterman, supra note 10, at 900; see also Sandra Simkins, Marty Beyer & Lisa M. Geis, The
Harmful Use of Isolation in Juvenile Facilities: The Need for Post-disposition Representation, 38
WASH. U. J.L. & POL’Y 241, 263 (2012) (“Often, the decision to place a juvenile in isolation is done
at the discretion of correctional officers for a reason that does not warrant such an intense level of
corrective action.”).
412 2014 ASCA-LIMAN SURVEY, supra note 277, at 8; see also Reinert, supra note 250, at 931–
32 (“[T]he use of solitary confinement has been left in the hands of line officers and their
supervisors.”).
413 Allen-Bell, supra note 264, at 769 (alteration in original) (quoting Gawande, supra note 276).
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 595
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
414 Hudson v. McMillian, 503 U.S. 1, 19 (1992) (Thomas, J., dissenting).
415 Id.
596 HARVARD LAW REVIEW [Vol. 133:542
APPENDIX
Walnut Street Jail Solitary Confinement Sentences, 1795–1800
Ratio of
Solitary
Prison Solitary
Date Convict Crime Sentence
Sentence Sentence
to Prison
Sentence
Margaret
2/28/1795 Counterfeiting 4 years 4 months 1/12
Price
Robert
2/28/1795 Counterfeiting 5 years 5 months 1/12
Hancock
Robert
2/28/1795 Counterfeiting 5 years 5 months 1/12
Hancock
Robert
2/28/1795 Counterfeiting 5 years 5 months 1/12
Hancock
William
2/28/1795 Counterfeiting 5 years 5 months 1/12
Shaw
William
2/28/1795 Counterfeiting 5 years 5 months 1/12
Shaw
William
2/28/1795 Counterfeiting 5 years 5 months 1/12
Shaw
Unspeci-
9/11/1795 Hugh Paxton Arson 5 years
fied*
Samuel
Lewis,
Nathan
Lewis, Murder of the
1/8/1796 Charles Second 5 years 5 months 1/12
Hobbes, Degree
Isaac Hobbes
& Isaac
Braden
Neal
11/25/1796 Rape 12 years 3 years 1/4
Lafferty
John
12/9/1796 Counterfeiting 10 years 1 year 1/10
Creighton
2019] SOLITARY CONFINEMENT IN THE YOUNG REPUBLIC 597
Concealing
Phebe the Birth and
1/30/1797 5 years 2.5 years 1/2
Cromwell Death of a
Bastard
8/1798
Joseph
(no day Burglary 21 years 2 years 2/21
specified) Disberry
Stephen
11/29/1798 Rape 12 years 2 years 1/6
Lyon
9/1799
Thomas Forgery and
(no day 10 years 1 year 1/10
specified) Armstrong Counterfeiting
598 HARVARD LAW REVIEW [Vol. 133:542
Elijah Crane
8/29/1799 Counterfeiting 12 years 3 years 1/4
Pardy
Second De-
9/3/1799 James Scott 18 years 6 years 1/3
gree Murder
Second De-
11/21/1799 James Kain 18 years 9 years 1/2
gree Murder
Amos Highway
2/11/1800 5 years 1 year 1/5
Merrion Robbery
Richard
2/12/1800 Mills & John Burglary 3 years 6 months 1/6
O’Brian
10 years
(burglary),
Burglary, Lar- 7 years
John 6 years
2/18/1800 ceny, and (larceny), 2/9
Henderson (total)
Prison Break 10 years
(prison
break)
William Highway
2/20/1800 7 years 1 year 1/7
Murray Robbery