
Touro Law Review
Abstract
Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The proposition that solitary confinement does not and cannot violate the Eighth Amendment is the subject of a decades-old circuit split that, as of right now, unfortunately shows no signs of being resolved. Courts have identified several factors to be considered when determining the answer to this question - including the length of the confinement, its impact on the individual’s mental and physical health, and its necessity. At least five circuits have held that solitary confinement can violate the Eighth Amendment: the Third, Fourth, Seventh, Eleventh, and Second. However, the Sixth, Ninth, and Tenth Circuits have found that solitary confinement does not violate the Eighth Amendment.
Recommended Citation
Scarfaro, Madison
(2025)
"Unboxing the Box: A Deep Dive into Solitary Confinement and When It May Violate the First And Eighth Amendments,"
Touro Law Review: Vol. 40:
No.
2, Article 16.
Available at:
https://digitalcommons.tourolaw.edu/lawreview/vol40/iss2/16
Included in
Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, First Amendment Commons, Supreme Court of the United States Commons