Texas' Solitary Confinement Under Constitutional Scrutiny


The Walnut Street Jail was constructed in Philadelphia in 1773—two years before the start of the American Revolution. It was built, as most jails and prisons are, to relieve overcrowding at another city jail. Its original purpose was to house arrested people in a single room to await the disposition of their cases by colonist authorities who functioned under the auspices of England’s King George.


The jail ultimately morphed into the Commonwealth of Pennsylvania’s first state penitentiary, the Eastern Pennsylvania Penitentiary, in 1829. It was the “first penitentiary” in America and the world. Its purpose, inspired by Quakers and Benjamin Franklin, was to bring about penitence, not punishment, of the wrongdoer.


This penitentiary, established under the religious leadership of Quakers, nonetheless became home to the first “supermax” solitary confinement unit in the nation’s prison system. By 1838, however, the Quakers had abandoned the notion that internal reflection in solitary confinement would produce penitence. They came to see solitary confinement as it is: a brutal punishment within the original punishment of imprisonment.


Over the next 150 years, solitary confinement, in one form or another, became a permanent fixture in the nation’s penal system. Unruly, violent, or problematic inmates were placed in single-cell units isolated from the prison’s general population. They would remain there for indefinite periods—six months, a year, two or three —before being returned to the general population.


But in 1934, nearly one hundred years after the Quakers renounced solitary confinement, the Federal Bureau of Prisons (BOP) took a minimum security military penal facility and converted it into the infamous Alcatraz Island Federal Penitentiary. The facility, near San Francisco, was built to house the worst and most famous criminals of that era. 


Deep in the belly of this “escape-proof” prison was a unit known as “D Block,” where problematic inmates were placed for long periods to be tortured into penal obedience. Many inmates died from abuse and neglect in the solitary confinement unit.


The BOP closed Alcatraz in 1959 and replaced it in 1963 with the nation’s first modern “super max” prison outside Marion, Illinois. It became known as the “Marion Penitentiary.” Most of its initial 500 inmates were former Alcatraz residents.  


Twenty years later, two guards were murdered at the facility, and the entire prison was placed in “permanent lockdown”—indefinite single-cell solitary confinement. The prison remained in permanent lockdown for the next twenty-three years.


The penal concept of “permanent lockdown” quickly gained favor in the nation’s prison system. By 1989, the State of California opened Pelican Bay, the nation’s first penal facility built to house inmates exclusively in “solitary confinement.” It became one of the nation’s most notorious prison facilities for human rights abuses.


Dozens of other state penal systems, including the Texas Department of Criminal Justice, followed the Pelican Bay model by either constructing new or transforming existing facilities into their own “supermax ” prisons. 


The Polunsky Unit opened in 1993 in Polk County and became Texas’ first “supermax” prison. The facility houses roughly 4,000 inmates and has solitary confinement units where inmates have been housed for decades.


By 2020, Texas had 4,000 of its 145,000 inmates in solitary confinement. Roughly 1300 inmates had been in solitary for more than six years, –680 between six and ten years; 450 between 10 and twenty years; 129 between twenty and thirty years; and eighteen for more than 30 years. 


Solitary cells in Texas are 9 feet long by 6 feet wide or 54 square feet. Inmates are stripped, searched, and handcuffed before being taken to a concrete enclosure for exercise. They cannot socialize with other inmates, attend religious functions or participate in religious programs. It has been documented that a majority of these inmates suffer from visual and auditory problems; endure hallucinations; suffer from depression and anxiety, and suffer from chronic physical pain. It is a solitary and sedentary existence devoid of humanity.


Daniel Hope spent 28 years in one of these Texas solitary confinement cells. He was committed to the state prison system in 1990 with a 30-year sentence for armed robbery. Following a two-month escape from prison, during which time he committed additional crimes, Hope was placed in solitary confinement in Polunsky in 1994


In 2018, Hope filed a federal civil rights complaint alleging that his long-term stay in solitary confinement violated the cruel and unusual punishment provisions of the Eighth Amendment to the U.S. Constitution. The district court dismissed the lawsuit. Hope appealed to the Fifth Circuit Court of Appeals. On June 18, 2021, that court held that, regardless of the duration, solitary confinement can never violate the Eighth Amendment.


That Fifth Circuit ruling joined three other federal Circuits—the SixthNinth, and Tenth—which have held that long-term solitary confinement does not per se violate the Eighth Amendment. 


The decisions of these four circuits conflict with five other federal circuits—the  SecondThird, FourthSeventh and Eleventh—which have found that there are circumstances and conditions surrounding solitary confinement that violate the Eighth Amendment.


In January 2022, attorneys representing Hope filed a petition for writ of certiorari in the U, S. Supreme Court. The constitutional question put squarely before the court is this:


“Whether decades of solitary confinement can, under some circumstances, violate the Eighth Amendment, as at least five circuits have held, or whether solitary confinement can never run afoul of the Eighth Amendment, as the court below and three other circuits have held.”


The Hope petition was joined through amicus curiae by a host of current and former prosecutors and Justice Department officials; professors and practitioners of psychiatry, psychology, and medicine; former corrections directors; and an expert on the Eighth Amendment.


One month after Hope’s certiorari petition was filed with the Supreme Court, Texas Attorney General Ken Paxton and Texas Department of Criminal Justice Director Bryan Collier sought to moot Hope’s claim by transferring the inmate into a lesser restrictive housing unit and placing him on a review path for a return to the general prison population.


In May 2022, Paxton filed a response to Hope’s certiorari petition seeking to have his case dismissed as moot because Hope had been released from solitary confinement.


The following month attorneys for Hope and Paxton filed a joint motion asking the court to hold the inmate’s petition in abeyance while the parties try to reach a “settlement” on the issue before the court.


We sincerely hope that a settlement notwithstanding, the Court will decide to use the Hope case to resolve the conflict between the federal Circuits on the issue of long-term solitary confinement. 


The Fifth Circuit’s position on the issue is nothing short of draconian. The Court’s logic would allow a 20-year-old inmate to be placed in solitary confinement for disciplinary reasons and held there until he died at 80 without offending the Eighth Amendment.


This issue is too important to be resolved in a one-state settlement. There are more than 80,000 prisoners in solitary confinement in the U.S., with roughly 30 percent of them under severe psychological distress.


In October 2015, in a Harvard Law School address, former Supreme Court Justice Anthony Kennedy called solitary confinement a “scourge” on the American criminal justice system, saying the practice “drives men mad.” 


In a concurring opinion that same year, Kennedy said, “Years on end of near total isolation exact a terrible price [through]common side effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”


Decades-long solitary confinement is not only a “scourge” but speaks volumes about the failure of a prison system that can only maintain control of inmates by placing them in cages like dangerous animals. 


The Texas Civil Rights Project, which calls solitary confinement “torture by another name,” reports that Texas confines more inmates in prolonged solitary confinement—six years or longer—than all other states and the Federal Bureau of Prisons combined.


Hopefully, the U.S. Supreme Court will put an end to this state-sanctioned penal madness.