PALO ALTO – Norwegian mass murderer Anders Behring Breivik argued in court last week that his detention in solitary confinement violates the European Convention on Human Rights. Breivik was sentenced to 21 years in prison for killing 77 people in a politically motivated bomb attack and shooting rampage in 2011. Norway takes a relatively gentle approach to its prisoners, giving Breivik access to three cells as well as a television, computer (with no internet connection) and Sony PlayStation. Nonetheless, Breivik argues that his isolation from other inmates and family members amounts to “inhuman or degrading treatment.”
Breivik is not alone in questioning the morality of solitary confinement. In the United States, prisons at both state and federal levels have reduced their use of solitary confinement. Justice Anthony Kennedy, in a brief concurring opinion, invited a constitutional challenge to the practice. During a recent session at Stanford Law School, however, Center for Constitutional Rights President Jules Lobel told the audience, “There is no court today that has found indefinite solitary confinement unconstitutional.”
Last September, Lobel’s organization won a series of reforms that ended indeterminate solitary confinement in prisons throughout California. This came as a result of a landmark settlement on behalf of inmates who had been held in isolation at Pelican Bay State Prison for periods ranging from 11 to 22 years. To win the national fight, however, opponents of prolonged solitary confinement must take their case to the Supreme Court. Lobel said that this litigation could arise in the next year.
In his brief opinion, Justice Kennedy invoked literary figures, including Dickens and Dostoyevsky, in lamenting the human toll of prolonged isolation. In future litigation, anti-solitary advocates could communicate the moral significance of solitary confinement by drawing on another novelist, French author Albert Camus. In his novel The Stranger, Camus suggests that the way society treats its prisoners reveals the degree of its morality. Solitary confinement crushed even The Stranger’s nihilist Meursault, who had been sentenced to death for committing a senseless murder. By extinguishing even Meursault’s tepid hope for life, the “machinery” of the state promoted societal indifference, verging on hatred, toward human life.
There are many parallels between the conditions Meursault endured and the extreme isolation, sensory deprivation and limited movement in Pelican Bay’s isolated units. In both contexts, cells provide room for little more than lying down or standing up; prisoners’ views of the outside are limited to patches of sky. Meursault had a small window in his cell, located high above the ground. Prisoners at Pelican Bay only saw the sky through the top of “exercise” pens enclosed by walls 15 feet high.
Meursault’s interactions in The Stranger were limited to visits from his lawyer and exchanges with a prison guard. According to court filings, most prisoners held in isolation at Pelican Bay did not have normal conversations and communicated only by speaking loudly enough to reach neighboring cells.
In prison, Meursault became engaged with the stones of his cell walls, coming to know them better than “anything or anyone in the world.” While Pelican Bay tightly restricts property, it permits inmates to purchase a television if they have the means. Expert testimony revealed that some prisoners at Pelican Bay experienced stronger “social engagement” with television dramas than with the plight of people around them or their own family members.
Meursault suffered insomnia. Inmates at Pelican Bay reported deep depression, panic attacks, hallucinations and self-mutilation. With no meaningful chance of release from isolation, prisoners at Pelican Bay tried to avoid complete mental breakdown by withdrawing into themselves and suppressing their feelings. As one plaintiff put it, they became “walking dead.”
This response, Lobel argues, reveals the cruelty of prolonged isolation. He explained that, when prisoners know they could remain in isolation for a decade or longer, they become utterly hopeless. “Human beings have tremendous powers of adaptation,” he said, “but adaptation to solitary confinement makes people lose certain aspects of what it means to be human.”
In The Stranger, Meursault experienced the same loss of hope as he awaited execution. He identified the hope for continued engagement with the world as the defining aspect of being human. “The most important thing,” he asserted, “[is] to give the condemned man a chance.” Knowing the guillotine spares no life, however, he simply hoped his execution would go off without a hitch. He became complicit with the state in his own killing.
Individuals condemned to prolonged solitary confinement similarly participate in a perverse “moral collaboration” with the state by willfully deadening their emotions. This compliance, Meursault explained, was the thing that bothered him most.
Of course, some prisoners are so hopelessly violent that the only way to protect others is to isolate them. As a general matter, though, officials should presume prisoners’ humanity and resort to indefinite isolation or other life-shattering punishments only when sufficient evidence proves otherwise. Failure to establish a constitutional bar to indefinite isolation reflects society-wide indifference to human life. Indeed, in the Pelican Bay case, plaintiffs charged state officials with deliberate indifference to the deprivations prisoners suffered.
Society may claim to value life, Camus suggests; but, as with Meursault, the criminal justice system overpowers it. From this indifference, Camus wrote, emerges “an abyss threatening to swallow up society.”