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Williams v. Secretary Pennsylvania Department of Corrections

United States Court of Appeals, Third Circuit

February 9, 2017

CRAIG WILLIAMS, Appellant
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DORINA VARNER, Chief Grievance Coordinator; TINA FRIDAY, Records Officer, in her individual and official capacity; JEFFREY R. ROGERS, Manager, in his individual and official capacity; TRACY SHAWLEY, Grievance Coordinator, in her individual and official capacity; LOUIS FOLINO, in his individual and official capacity SHAWN T. WALKER, Appellant
v.
MICHAEL A. FARNAN; SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUPERINTENDENT GRATERFORD SCI; CINDY G. WATSON, and others to be named later

          Argued April 18, 2016

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (No. 2-12-cv-00944) District Judge: Honorable Mark R. Hornak

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (No. 2-07-cv-04977) District Judge: Honorable R. Barclay Surrick

          James J. Bilsborrow, Esq. [ARGUED] Weitz & Luxenberg Attorney for Appellants

          John G. Knorr, III, Esq. [ARGUED] Office of Attorney General of Pennsylvania Strawberry Square Kemal A. Mericli, Esq. Office of Attorney General of Pennsylvania Randall J. Henzes, Esq. Claudia M. Tesoro, Esq. Attorneys for Appellees

          Before: McKEE [*] , Chief Judge, FUENTES [*] , and ROTH, Circuit Judges.

          OPINION

          McKEE, Circuit Judge.

         I. INTRODUCTION

         We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement[1] on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement. For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State's ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.[2] However, we also hold that, because this principle was not clearly established before today, the prison officials ("Defendants") in this consolidated appeal are entitled to qualified immunity.

         Accordingly, we will affirm the district courts' grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established.

         II. FACTS AND PROCEDURAL HISTORY

         Craig Williams and Shawn T. Walker ("Plaintiffs")[3]are inmates in the custody of the Pennsylvania Department of Corrections ("DOC"). Each was sentenced to death and housed on the death row of his respective institution following imposition of his death sentence. Eventually, their death sentences were vacated, but several years elapsed before they were resentenced to life without parole.[4] In the interim, Plaintiffs were kept on death row until their appeals were finally decided. Accordingly, they spent several years in the solitary confinement of death row from the date their death sentences were vacated, until they were finally resentenced to life imprisonment and placed in the general population.[5]

         After their sentences were vacated, each Plaintiff brought suit seeking damages[6] from various DOC officials.[7] Their suits allege the officials violated their Fourteenth Amendment rights to due process by continuing to subject them to the deprivations of solitary confinement on death row without meaningful review of their placements after their death sentences had been vacated.[8] Inasmuch as the claimed liberty interest turns on the conditions of Plaintiffs' confinement, we will first describe those conditions and the legal authority relied upon to impose it, and then address whether those conditions violate a constitutionally protected liberty interest.

         A. Confinement on Death Row

         Plaintiffs were placed on death row after receiving their death sentences pursuant to 61 Pa. Cons. Stat. § 4303, which provides:

[T]he secretary [of corrections] shall, until infliction of the death penalty . . . keep the inmate in solitary confinement. During the confinement, no person shall be allowed to have access to the inmate without an order of the sentencing court, except the following: (1) The staff of the department. (2) The inmate's counsel of record or other attorney requested by the inmate. (3)A spiritual adviser selected by the inmate or the members of the immediate family of the inmate.[9]

         Plaintiffs assert that this provision no longer applied to them once their death sentences were vacated. They further stress that they did not receive meaningful review of their continuing placement on death row to determine if the deprivations of that placement were necessary.

         In total, Walker spent approximately twenty years on death row. Roughly eight of those years were spent after he had been granted a resentencing hearing.[10] Williams spent twenty-two years on death row, with six of those years following his grant of resentencing.[11]

         1. Walker

         After his death sentence was vacated, Walker remained on death row where he was confined in a windowless seven by twelve feet cell for almost twenty-four hours a day. There, like other death row inmates at SCI-Graterford, he lost "virtually all communication [with] the general population and the outside world."[12] Walker was permitted four (non-legal) visits per month. During those visits he was "locked in a closet-sized room, behind a reinforced sheet of glass . . . . [and was] not permitted physical contact with any of his visitors . . . ."[13] Even Walker's meals were provided in the isolation of his cell.

         Walker was permitted to leave his cell only five times a week for two-hour intervals of exercise in the open air, in a restricted area known as the "dog cage."[14] However, to enter the "dog cage, " Walker first had to undergo an invasive strip search.[15] To avoid the psychological and physical intrusion of these "full" body searches, Walker did not leave his cell for open air exercise for nearly seven years.[16]

         Walker alleges that his prolonged confinement on death row in these constricting conditions has taken a toll on his mental and physical well-being. He describes these effects as "long term and debilitating."[17] For example, due to the constant noise of other inmates on death row, and a "fear of being executed accidentally, " Walker developed insomnia.[18] He also claims to suffer from uncontrollable body tremors and severe emotional distress.

         2. Williams

         Williams's plight on death row at SCI-Greene was similar to Walker's. He remained confined to his cell for almost twenty-two hours a day after his death sentence was vacated. His meals were also provided in the confines of his cell. Williams explains that because medical consultations were provided at his cell door, inmates in separate cells could hear his exchanges with medical providers, which compromised his privacy. During the short intervals that Williams was not in his cell, but in the prison yard, law library, or shower, he was held inside a small locked cage that continued to restrict his movement and freedom of association. Like Walker, he was only permitted non-contact visits.

         B. Plaintiffs' Legal Proceedings

         Plaintiffs filed numerous prison grievances based on continually being subjected to these deprivations. Those grievances were unsuccessful. Plaintiffs then filed the suits that are before us in these consolidated appeals. The procedural background leading to these suits is as follows.

         1. Williams

         In 1988, Williams was convicted of first degree murder in the Philadelphia Court of Common Pleas and was later sentenced to death. Williams's criminal judgment was affirmed on direct appeal.[19] Williams then pursued relief under Pennsylvania's Post Conviction Relief Act ("PCRA").[20] On July 11, 2006, the trial court concluded that Williams was entitled to a new penalty hearing. Williams appealed the court's denial of his guilt phase claims, but the State did not appeal the court's invalidation of the death sentence that was imposed at the sentencing phase. On May 1, 2012, Williams was resentenced to life imprisonment without the possibility of parole. Soon thereafter, he was finally removed from death row at SCI-Greene and placed in the general population.[21]

         In July of 2012, Williams filed a pro se and in forma pauperis action under 42 U.S.C. § 1983 against various DOC officials. He alleged that his confinement on death row between the time that he was granted resentencing and the time his new sentence was imposed violated his substantive and procedural due process rights. Defendants moved for summary judgment, contending that Williams's confinement while awaiting resentencing did not violate his constitutional rights. Defendants also argued that they were entitled to qualified immunity, a defense they had raised earlier in their answer to Williams's complaint. In a Report and Recommendation, the assigned Magistrate Judge concluded that Williams's Fourteenth Amendment procedural due process claim failed because he did not have a liberty interest in being housed in the general prison population.[22] The Magistrate Judge also concluded that because Defendants' policy of keeping inmates like Williams on death row even after their death sentences were vacated was grounded in legitimate penological goals, Williams did not have a substantive due process claim. [23] Overruling Williams's objections, the district court adopted the Report and Recommendation and granted Defendants' motion for summary judgment.[24] Williams appealed.

         2. Walker

         Walker was also convicted of first degree murder in the Philadelphia Court of Common Pleas in 1992, and sentenced to death. The verdict and sentence were affirmed by the Pennsylvania Supreme Court on direct appeal.[25]Walker thereafter filed for relief under the PCRA. In April 2004, the Philadelphia Court of Common Pleas upheld his conviction but granted a new sentencing hearing. After additional unsuccessful challenges to his conviction, Walker was resentenced to life imprisonment without the possibility of parole on April 12, 2012, [26] and transferred to the general population on May 4, 2012.[27]

         Before his resentencing, in 2008 Walker filed a pro se and in forma pauperis § 1983 action alleging that his confinement on death row after his death sentence had been vacated violated his Eighth Amendment right to be free from cruel and unusual punishment as well as his Fourteenth Amendment right to due process of law.[28] Pro bono counsel was appointed to represent Walker. The district court granted summary judgment in favor of Defendants.[29] The court concluded that Defendants were entitled to qualified immunity because the rights Walker asserted were not clearly established.[30] Walker's appeal from that ruling was consolidated with Williams's appeal.

         C. DOC Policy

         Defendants argue that the DOC policy that implements § 4303 required Plaintiffs' continued confinement on death row until they were resentenced to life imprisonment. In relevant part, this policy states:

         S. Modification of Sentence

1. In the event that an order is received modifying the sentence of a Capital Case inmate to life imprisonment due to a re-sentencing proceeding held as the result of an appeal or Post Conviction Relief Act, . . . the facility Records Supervisor must determine whether the order is valid and whether the District Attorney intends to appeal the order.
2. If the District Attorney intends to appeal, the inmate shall not be moved from the Capital Case unit until the appeal is resolved. However, the inmate may be moved from the Capital Case Unit, if the District Attorney does not file an appeal within 30 days.
3. If the District Attorney does not intend to appeal and if the inmate does not remain subject to an execution sentence as the result of a prosecution other than the sentence modified in the order, the inmate may be moved from the Capital Case Unit.[31]

         According to Defendants, this policy only permits removal from death row (referred to in the policy as the "Capital Case Unit") when a death sentence has actually been modified. They claim that the grants of resentencing here merely put Plaintiffs' sentences on hold because re-imposition of the death penalty was possible. In any event, Defendants assert they are protected from Plaintiffs' suits by qualified immunity.

         III. JURISDICTION AND STANDARD OF REVIEW

         The district courts had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291. Our review of the courts' grants of summary judgment is plenary.[32] Thus, we must draw all reasonable inferences in Plaintiffs' favor.[33] If we find there are no genuine issues of material fact, and Defendants are entitled to judgment as a matter of law, we must affirm the courts' orders of summary judgment.[34]

         IV. DISCUSSION

         Plaintiffs maintain that their confinement on death row without regular placement reviews after they had been granted new sentencing hearings violated their procedural due process rights under the Fourteenth Amendment. Accordingly, we begin with the threshold question of whether Plaintiffs have asserted a liberty interest sufficient to trigger due process protections. If we conclude they have a liberty interest under the Due Process Clause, we then must decide if that right was clearly established when the alleged due process violation occurred. If the right was not clearly established, our inquiry ends and Defendants are entitled to qualified immunity. If it was, we then need to determine if there is a genuine issue of material fact regarding the alleged violation of that right.

         A. Qualified Immunity

         Defendants assert that qualified immunity bars Plaintiffs' claims for damages and that they are therefore not liable even if Plaintiffs' protracted confinement on death row was unconstitutional. Under the doctrine of qualified immunity, "officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights."[35] In assessing qualified immunity claims, we conduct a two-part inquiry. We first determine whether a right has been violated. If it has, we then must decide if the right at issue was clearly established when violated such that it would have been clear to a reasonable person that her conduct was unlawful.[36]

         As the Supreme Court made clear in Pearson v. Callahan, courts are no longer required to tackle these steps in sequential order.[37] The decisions now on appeal represent both possible approaches. The district court that decided Williams's case found that his constitutional rights had not been violated, albeit not in the context of a qualified immunity analysis. The district court in Walker's case discussed only the second prong, concluding that because the right Walker alleged was not clearly established, Defendants were entitled to summary judgment based on qualified immunity.[38]

         Despite relaxing the "rigid order of battle"[39] that formerly governed the analysis of qualified immunity, in Pearson, the Court nonetheless recognized that it is often appropriate and beneficial to define the scope of a constitutional right. Doing so "promotes the development of constitutional precedent" and is especially valuable "with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable."[40] The analytical approach is thus left to appellate courts to resolve in the context of the individual case, and the constitutional question, before it.[41]

         "Because we believe this case will clarify and elaborate upon our prior jurisprudence in important and necessary ways, " we exercise our discretion under Pearson to reach the qualified immunity steps in sequence.[42]Accordingly, we will first determine whether Plaintiffs' rights were violated and then decide if Defendants should have qualified immunity from suit. We adopt this approach for several reasons, not the least of which is the salience of the underlying questions to the ongoing societal debate about solitary confinement. But at a more basic level, lawsuits by prisoners, whether about conditions of confinement or other aspects of incarceration, are frequently-and, we stress, not inappropriately-met with qualified immunity defenses from defendants.[43] Thus, defining rights when given the opportunity to do so not only inures to the benefit of potential plaintiffs, it also informs prison personnel and others about what is appropriate. Those responsible for discharging the difficult responsibility of administering our nation's prisons deserve clear statements about what the law allows.

         B. Protected Liberty Interest

         1. Sandin, Wilkinson, and Shoats[44]

         A liberty interest may arise from the Constitution or "from an expectation or interest created by state laws."[45]Here, Plaintiffs contend they had a state-created liberty interest under the Fourteenth Amendment. To establish such an interest in the conditions of confinement context, courts generally require a showing that the alleged liberty interest is substantial.[46] To rise to the level of a liberty interest, the right alleged must confer "freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."[47]

         The Supreme Court's decisions in Sandin v. Conner[48]and Wilkinson v. Austin[49] guide our inquiry into what constitutes an "atypical and significant" hardship. In 1995, the Court held in Sandin that no liberty interest was implicated by an inmate's placement in solitary confinement for thirty days as discipline for disruptive behavior.[50] The holding was based on the Court's conclusion that disciplinary solitary confinement was "within the expected perimeters of the sentence imposed" and therefore, was not atypical.[51] A decade later, in Wilkinson, the Court held that conditions at a "Supermax" facility were such a severely constricting environment that they gave rise to a state-created liberty interest.[52] The Court explained, "Supermax facilities are maximum-security prisons with highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population."[53] The Court concluded that long-term incarceration in the Supermax at issue was "synonymous with extreme isolation."[54] Consequently, the Court held that the challenged conditions of confinement were atypical "under any plausible baseline."[55] The inmates therefore had a liberty interest under the Fourteenth Amendment's Due Process Clause in not being subjected to these conditions absent procedural protections that ensured the confinement was appropriate.[56]

         As Wilkinson recognized, "[i]n Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant."[57] Given Wilkinson's guidance, in Shoats v. Horn we established the following two-factor inquiry: (1) the duration of the challenged conditions; and (2) whether the conditions overall imposed a significant hardship in relation to the ordinary incidents of prison life.[58] Applying that inquiry in Shoats, we concluded that "virtual isolation for almost eight years" in solitary confinement created a protected liberty interest.[59]

         Shoats involved a suit by an inmate confined in administrative custody because of his history of violence.[60]The inmate was serving a life sentence for murder when he escaped from custody.[61] During the escape, Shoats stabbed several guards.[62] Given his violent behavior and the perceived threat to others, Shoats was placed in administrative custody when finally recaptured. Under then existing prison policy, "there [was] no maximum period of confinement in administrative custody."[63] Rather, release back to the general population was dependent on "an evaluation of many factors."[64] These included behavior while in administrative custody, "continued risk, safety of others, and recommendations of prison personnel, including treatment staff."[65]

         In discussing Shoats' claim that indefinite detention in administrative custody violated his right to due process, we described what administrative custody involved. Administrative custody meant that inmates were "not allowed to have radios, televisions, telephone calls (except emergency or legal), personal property except writing materials, or books other than legal materials and a personal religious volume."[66]"Non-legal visits [were limited to] one per week . . . under appropriate security procedures designated by the [prison's] Program Review Committee (PRC)."[67] Finally, inmates in administrative custody were not eligible to participate in any educational programs "and all meals [had to be] eaten in the inmates' cells."[68] We concluded that these deprivations were such a significant departure from the hardships normally attendant to incarceration that Shoats had a liberty interest in not being made to endure them indefinitely.[69]

         2. Plaintiffs' Atypical Hardship

         a. Duration of Segregation

         Plaintiffs have shown atypical hardship. In Sandin, the Court found that thirty days in solitary confinement did not give rise to a protected interest.[70] In Wilkinson, the Court found that essentially indefinite confinement with the extreme deprivations imposed there did give rise to a protected interest.[71] The hardship Plaintiffs experienced here is far more analogous to the extreme deprivation in Wilkinson than the much shorter and less severe infringement on liberty that was present in Sandin. Both Plaintiffs remained in solitary confinement on death row for years-many multiples of Sandin's thirty days-after the initial justification for subjecting them to such extreme deprivation (their death sentences) ceased to exist.[72] Plaintiffs' isolation on death row lasted six and eight years. We see no meaningful distinction between those periods of extreme deprivation and the eight years of solitary confinement that we concluded in Shoats was "not only atypical, but [] indeed 'unique.'"[73] Although we do not suggest that it would be considered atypical under Sandin, we do note that researchers have found that even a few days in solitary confinement can cause cognitive disturbances.[74]

         Here, as in Wilkinson and Shoats, Plaintiffs' placements on death row were indefinite.[75] In Wilkinson, "placement at [the Supermax] is for an indefinite period of time, limited only by an inmate's sentence. For an inmate serving a life sentence, there is no indication how long he may be incarcerated . . . once assigned there."[76] And in Shoats, we found the deprivations were indefinite because there was no maximum period for the inmate's placement in solitary confinement.[77] Likewise, Plaintiffs' continued confinement on death row after their death sentences were vacated continued for years with no ascertainable date for their release into the general population. Plaintiffs could not even hope to be released based on prison PRC review because these pro forma assessments did not consider the necessity of their severe conditions of confinement. Obviously, had Plaintiffs' respective appellate proceedings stretched far beyond six and eight years, so would their respective placements on death row. Indeed, Defendants argue this is precisely what the DOC policy would have required. In Defendants' view, so long as re-imposition of the death penalty was possible, the automatic deprivations of death row were mandatory.

         This indefiniteness contrasts sharply with other common forms of solitary confinement, such as the punitive segregation that is discussed in Sandin.[78] The duration of the deprivations that follow from that seclusion is often predetermined and fixed[79] unless the inmate's behavior is thought to require an additional period of segregation.[80] Here, Walker and Williams could have been the most compliant inmates in a given facility, and exhibited no signs they would endanger themselves or others. They would still have been relegated to death row indefinitely even though they had won new sentencing proceedings and were not under active sentences of death. This would follow even if the professionals who are part of the prison PRC reviewed their placements and concluded that that level of confinement was not otherwise warranted. We therefore have no trouble holding that the conditions they had to endure while awaiting resentencing constitute an "atypical . . . hardship on the inmate in relation to the ordinary incidents of prison life."[81] b. Plaintiffs' Significant Hardship

         As in Shoats, it is undisputed that the conditions Plaintiffs experienced on death row "differ significantly from 'routine' prison conditions in Pennsylvania state institutions."[82] Among the range of hardships we have already noted, Plaintiffs were confined to their respective cells for twenty-two to twenty-four hours a day and ate all meals accompanied only by the emptiness within the walls of their cells. In addition, Williams was placed inside a small locked cage during much of the limited time he was allowed to leave his cell and Walker was subjected to invasive strip searches each time he left his cell for exercise. As discussed below, a body of research has shown that such conditions can trigger devastating psychological consequences, including a loss of a sense of self.[83]

         These are also stark departures from conditions in the general prison population, and Defendants readily concede as much: "Regarding the comparison of conditions of confinement for capital case inmates with those [in the] general population, it is admitted that they are more strict than those for general population."[84] The record establishes that, unlike those confined on death row, inmates in the general population have: Access to open air activities without strip searches; regular access to windows and natural light; daily access to showers; and the right to more frequent visits where contact is permitted. General population inmates also have access to group religious services, while death row inmates are limited to religious tapes. A variety of jobs and vocational programs-including clothing factory jobs, culinary training, and barbershop training-are limited to inmates in the general population. Likewise, group sport activities are reserved for the general population. General population inmates can make phone calls as frequently as their funds allow. On death row, outside of attorney calls, only three fifteen minute calls are allowed per week.

         The district court that ruled on Walker's claim recognized these discrepancies. The court stated in no uncertain terms that "[t]he conditions of confinement [on death row] are much more restrictive than in the general population at Graterford."[85] For instance, "Plaintiff's contact with individuals other than prison staff was extremely limited [on death row]. Plaintiff received each of his three meals per day in his cell. By contrast, the general population at Graterford eats in communal dining rooms."[86] Thus, while general population affords inmates regular human contact, inmates on death row such as Plaintiffs are deprived of such interaction. Even the most basic activities of daily living, such as eating, are done in utter solitude.

         Numerous studies on the impact of solitary confinement show that these conditions are extremely hazardous to well-being. Accordingly, it is precisely this type of isolation that led the courts in Shoats and Wilkinson to conclude that the deprivations of solitary confinement implicate a protected liberty interest. In Shoats, we gave great weight to the fact that the inmate was "confined in his cell for 23 hours a day, five days a week, and 24 hours a day, two days a week . . . . [and] eats meals by himself."[87]Similarly, in Wilkinson the Supreme Court grounded a liberty interest on its finding that "[i]nmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day" and "[a]ll meals are taken alone in the inmate's cell instead of in a common eating area."[88] These conditions of extreme social isolation cannot be meaningfully distinguished from the deprivations suffered by Plaintiffs here.

         In fact, in some respects, Plaintiffs' conditions were more severe than those the Supreme Court found atypical and significant under "any plausible baseline."[89] Walker's cell was even smaller than the cells in Wilkinson, [90] and the inmates in Wilkinson were not subject to invasive strip searches when they left their cells. Accordingly, Plaintiffs have sufficiently alleged the significant and atypical conditions of confinement that give rise to a protected liberty interest.

         3. Defendants' Alternate Standard

         Defendants assert that the appropriate standard in this case is not the general prison population as in Wilkinson and Shoats. Instead, they claim the metric we should use is the conditions imposed on "inmates serving similar sentences" or what Plaintiffs' convictions have "authorized the State to impose."[91] Defendants thus claim the baseline of comparison here is death row itself[92] because Plaintiffs remain eligible for the death penalty.[93] Therefore, Defendants argue that Plaintiffs' continued confinement on death row can hardly be atypical.

         This argument fails for at least two reasons. First, the standard Defendants propose is inconsistent with Shoats. There, we did not limit our focus to the conditions of solitary confinement, even though the DOC might think it appropriate to subject inmates evidencing violent tendencies such as Shoats' to that level of deprivation. Rather, we judged Shoats' conditions "in relation to the ordinary incidents of prison life" or relative to "'routine' prison conditions."[94] The terms "ordinary" and "routine" direct us to use a general metric (the general population), not one specific to a particular inmate. Second, though some courts have used the metric Defendants propose, it is unworkable in this context.[95]We cannot resolve Plaintiffs' claims by reference to "inmates serving similar sentences" because, during the period at issue, Plaintiffs were not serving any sentence whatsoever. Their sentences had been vacated and resentencing had been ordered.

         Defendants' other metric-what the State is authorized to impose-is based on a similarly mistaken premise. As we just explained, it is inconsistent with the analysis in both Wilkinson and Shoats. It also assumes that what the State is "authorized" to impose is determinative of our constitutional inquiry. However, whether Defendants were complying with DOC policy is irrelevant to our liberty interest analysis. As Plaintiffs point out, in Shoats, the DOC was following its own policy in providing Shoats with regular reviews and hearings regarding his placement in solitary confinement, and in keeping him there.[96] But these policies were only relevant to our finding that Shoats' due process rights had not been violated.[97] The DOC's compliance with its policy did not stand in the way of us finding that Shoats had a liberty interest in avoiding solitary confinement. We answered the liberty interest question based on the conditions themselves, as we must if the Constitution is to be our guide.[98]

         Wilkinson likewise instructs that application of the DOC policy must be circumscribed by Plaintiffs' liberty interest. In Wilkinson, the Court explained that "it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves."[99] Therefore, Defendants' reliance on their own policy cannot defeat Plaintiffs' liberty interest. Rather, our inquiry must be governed by the conditions on death row.

         Wilkinson also counsels against weighing inmate dangerousness in determining whether Defendants' continued confinement of Plaintiffs on death row without meaningful review violated their liberty interests. Defendants highlight the testimony of prison officials to claim that:

prisoners whose death sentences have been vacated, but who are still liable to have the death penalty re-imposed, present the same security and safety issues as those who are actually under a death sentence . . . . Thus, when a sentence of death is vacated on appeal or otherwise, the prisoner remains in a CCU until he or she is no longer exposed to the death penalty.[100]

         In Wilkinson, the Court explained: "[H]arsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. . . . That necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance."[101] Thus, although dangerousness is certainly relevant to Defendants' decisions about where to place inmates, it does not control the outcome of our due process analysis. It is the conditions themselves that determine whether a liberty interest is implicated and procedural protections must be in place to determine if the level of dangerousness justifies the deprivations imposed.

         4. The Scientific Consensus

         The robust body of scientific research on the effects of solitary confinement, combined with the Supreme Court's analysis in Wilkinson and ours in Shoats, further informs our inquiry into Plaintiffs' claim that they had a liberty interest in avoiding the extreme conditions of solitary confinement on death row. This research contextualizes and confirms the holdings in Wilkinson and Shoats: It is now clear that the deprivations of protracted solitary confinement so exceed the typical deprivations of imprisonment as to be the kind of "atypical, significant deprivation . . . which [can] create a liberty interest."[102]

         A comprehensive meta-analysis of the existing literature on solitary confinement within and beyond the criminal justice setting found that "[t]he empirical record compels an unmistakable conclusion: this experience is psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term . . . damage."[103] Specifically, based on an examination of a representative sample of sensory deprivation studies, the researchers found that virtually everyone exposed to such conditions is affected in some way.[104] They further explained that "[t]here is not a single study of solitary confinement wherein non-voluntary confinement that lasted for longer than 10 days failed to result in negative psychological effects."[105] And as another researcher elaborated, "all [individuals subjected to solitary confinement] will . . . experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli."[106]

         Anxiety and panic are common side effects.[107]Depression, post-traumatic stress disorder, psychosis, hallucinations, paranoia, claustrophobia, and suicidal ideation are also frequent results.[108] Additional studies included in the aforementioned meta-analysis further "underscored the importance of social contact for the creation and maintenance of 'self.'"[109] In other words, in the absence of interaction with others, an individual's very identity is at risk of disintegration.

         In light of the severity of solitary confinement conditions, these troubling findings are hardly counterintuitive. In one of the most comprehensive surveys of conditions of solitary confinement to date, researchers gathered detailed data from prison directors.[110] They found that solitary confinement cells typically range from 45 to 128 square feet[111] or, in Justice Kennedy's words, "no larger than a typical parking spot."[112] The researchers also learned that in many jurisdictions, inmates spend twenty-three hours a day on weekdays, and forty-eight hours straight on weekends, in these miniscule spaces.[113] Opportunities to stay connected with family and friends are also limited, with some jurisdictions only permitting video visits and forbidding visits by minors.[114]

         The results of all of these studies are really neither surprising, nor novel. Over one hundred years ago, well before the full emergence of the empirical research in this area, the Supreme Court recognized that solitary confinement caused "[a] considerable number of the prisoners [to] f[a]ll, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane."[115]

         Now, with the abundance of medical and psychological literature, the "dehumanizing effect"[116] of solitary confinement is firmly established. As Justice Breyer recognized, "it is well documented that such prolonged solitary confinement produces numerous deleterious harms."[117] A clinical review by an expert who has evaluated the psychiatric effects of solitary confinement in over two hundred inmates offers a case in point.[118] This expert found that "disturbances were often observed in individuals who had no prior history of any mental illness."[119] That is to say, the evidence shows that the psychological trauma associated with solitary confinement is caused by the confinement itself. The relationship cannot be dismissed as merely a simple correlation between pre-existing mental health issues and placement in solitary confinement.

         This study also determined that even a short time in solitary confinement is associated with drastic cognitive changes: "Indeed, even a few days of solitary confinement will predictably shift the electroencephalogram (EEG) pattern toward an abnormal pattern characteristic of stupor and delirium."[120] In the words of the study's author, solitary confinement is "strikingly toxic to mental functioning."[121]

         As if psychological damage was not enough, the impact of the deprivation does not always stop there. Physical harm can also result. Studies have documented high rates of suicide[122] and self-mutilation[123] amongst inmates who have been subjected to solitary confinement. These behaviors are believed to be maladaptive mechanisms for dealing with the psychological suffering that comes from isolation.[124] In addition, the lack of opportunity for free movement is associated with more general physical deterioration. The constellations of symptoms include dangerous weight loss, hypertension, and heart abnormalities, as well as the aggravation of pre-existing medical problems.[125]

         Personal accounts of individuals subjected to solitary confinement are consistent with this body of research and describe the devastating effects of extreme isolation and sensory deprivation. One individual who spent twenty-nine years in solitary confinement explained, "At times I felt an anguish that is hard to put into words. To live 24/7 in a box, year after year, without the possibility of parole, probation or the suspension of sentence is a terrible thing to endure."[126]The experience drives some individuals to contemplate suicide.[127]

         The conclusion of another inmate paints a similar picture. He described solitary confinement as capable of "alter[ing] the ontological makeup of a stone."[128] Given the research that we have discussed, that statement cannot be dismissed merely because it is hyperbole. In fact, that inmate eventually committed suicide in prison.[129] And as we have just shown, his is not the only story of solitary confinement followed by deterioration and self-harm. These stories confirm what the scores of studies[130] that have examined this phenomenon tell us: Continued solitary confinement, the experience Plaintiffs complain of here, poses a grave threat to well-being.

         This data compels us to recognize the similarities between the plight of Plaintiffs, and those of Shoats and the inmates in Wilkinson. All were indefinitely subject to isolating conditions that researchers agree cause deep and long-term psychic harm. Such harm is the essence of the atypical and significant hardship inquiry required under Sandin and Wilkinson.

         5. Purportedly Contrary Precedent Cited by Defendants

         With one exception, which we shall discuss, the cases Defendants rely upon in arguing against Plaintiffs' liberty interest are readily distinguishable. Those cases hold that inmates confined under a death sentence do not have a liberty interest that precludes confinement on death row without regular review.[131] However, those inmates were all confined pursuant to death sentences that had not been vacated. Accordingly, confinement on death row was not a significant or atypical hardship for them. Rather, it was expressly within the "expected perimeters of the sentence imposed."[132] This logic does not apply here. Plaintiffs were no longer being confined under a death sentence because their death sentences had been vacated. Their liberty interests are thus not comparable to those of inmates with active death sentences that arguably require continued placement on death row.

         Defendants and the district court also relied on Clark v. Beard.[133] There, the Commonwealth Court of Pennsylvania examined the same policy that is at issue here under circumstances that were similar to those before us. Clark did involve inmates confined on death row without active death sentences.[134] However, that court's analysis does not advance our inquiry. That court merely found the inmates failed to provide the facts necessary to establish an appropriate comparator for their conditions of confinement: "Their complaint describes the conditions in the Capital Case Unit, but it is devoid of any baseline against which to measure those conditions and determine whether they pose an 'atypical and significant hardship.'"[135] As a result, the court concluded it could not determine if the inmates' conditions gave rise to a liberty interest under Sandin. Clark's holding thus rested on an evidentiary determination, not a constitutional one rooted in the Due Process Clause. Clark did not decide if the inmates had a liberty interest in being housed outside death row.[136] Consequently, Clark simply does not answer the question posed here.

         For the reasons we have discussed, we now hold that Plaintiffs had a due process liberty interest in avoiding the extreme sensory deprivation and isolation endemic in confinement on death row after their death sentences had been vacated.[137] However, as we explain below, we must nevertheless affirm the district courts' grants of summary judgment in favor of Defendants because we conclude that they are entitled to qualified immunity.

         C. Was the Right Clearly Established?

         Having found a violation of Plaintiffs' constitutional rights, we now determine whether the scope of the right was clearly established for the purposes of Defendants' defense of qualified immunity.

         As the district court suggested, a qualified immunity analysis looks through the rearview mirror, not the windshield.[138] The inquiry focuses on the state of the relevant law when the violation allegedly occurred. For a right to have been "clearly established, " "existing precedent must have placed the statutory or constitutional question beyond debate." [139] However, the facts of the existing precedent need not perfectly match the circumstances of the dispute in which the question arises. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." [140] Requiring that precedent and subsequent disputes rest on ...


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