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John Stinneford: Is Solitary Confinement a Punishment?
Michael Ramsey

John F. Stinneford (University of Florida Levin College of Law) has posted Is Solitary Confinement a Punishment? (Northwestern University Law Review, Vol. 115, 2020) (29 pages) on SSRN.  Here is abstract: 

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law. Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence. Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades. Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment. Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.")