The Court's decision to stay away from the issue for now comes at a time when some of the justices have expressed interest in the matter and officials across the country are re-thinking solitary confinement as it applies not only to death row inmates, but to other inmates with lesser sentences as well.
But Tuesday's move doesn't mean the justices aren't interested in the issue. The original petitioner, Alfred Prieto, was executed before the justices could meet and decide whether to take up his claim. After the execution, Prieto's lawyers urged the Court to allow a different inmate, with similar issues, to step in. The Court rejected the move and dismissed the petition as moot.
Indeed, the face of solitary confinement is transforming as officials grapple with the belief that segregation might multiply or even manufacture mental illness. Last June, Justice Anthony Kennedy went out of his way in an unrelated case to suggest that the Court should take up the issue of long term confinement at some point.
The next month, President Barack Obama asked the Justice Department to start a review of the overuse of solitary confinement. "Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day sometimes for months or even years at a time," the President asked an audience at an NAACP conference. "It's not smart," he said.
Rick Raemisch, the executive director of the Colorado Department of Corrections, agrees with Obama's argument.
He took his job as executive director of the Colorado Department of Corrections in 2014 after his predecessor was murdered by a former inmate who had spent seven years in solitary and was then released directly into society.
Raemisch knew things had to change, and he moved immediately to reduce the DOC's reliance on the punishment . He targeted the number of people in segregation. In 2011, it was 7% of the population. Fifty percent of that population was released directly into society. He emphasized transitional programs, and treatment options. Today, he says the numbers in segregation are less than 1% -- and no one has been released directly from there into society in the past 18 months.
He also worried about the mentally ill. There are 20 state-run prisons in the system with approximately 18,000 inmates. Thirty-four percent of the population has some form of mental issue, 14% a serious mental health issue. The use of segregation was banned for those diagnosed as seriously mentally ill, and he also banned its use at a facility that houses those with severe mental disabilities.
"You can't put someone in a 7-by-13 foot cell and let the demons chase them around in there, " he said.
He's hit roadblocks in his efforts at reform. Unexpectedly, at one point several inmates didn't want to come out of solitary.
"They were scared, and so de-socialized that they couldn't picture themselves being with other people." Eventually, officials used therapy dogs to help coax some people out.
Like Raemisch, Cornelius Dupree knows first hand the effects of solitary confinement on the prison population. In 2011 he was exonerated by DNA evidence after having spent 30 years in Texas prisons for crimes he didn't commit. He spent 15 days in solitary at one point after he got in a fight with fellow inmates while working in a field. In 2012, he submitted his story to Congress as a part of an effort by the Innocence Project, a group dedicated to assisting prisoners who could be proven innocent through DNA testing, to shine light on the issue.
In an interview, Dupree says that he was given a full meal every third day while he was in solitary and was often left in the pitch dark.
"It's mind over matter," he said. But he worries about long-term effects for those who are released back into society. "A lot of guys get out and because they have been treated that way—you take away their self-esteem and the love they have—and they may be mad at the world."
"You have to treat them like humans, not like animals so they hold a grudge," he said.
Across the country, prisons have different criteria for what amounts to solitary confinement, and the length of time the prisoners are segregated.
The Virginia appeal rejected Tuesday came from lawyers for Mark Eric Lawlor, who was sentenced to death in 2011 for the murder of Genevieve Orange. Lawlor is segregated from the general prison population and subject to what his lawyer, Michael E. Bern, argues are "extreme and atypical" conditions of long term solitary confinement.
The practice at the Virginia Department of Corrections is to keep inmates like Lawlor away from most human contact in a cell that measures 71 square feet and has a small mesh covered window for natural light.
In Court papers, Mark R. Herring, Virginia's Attorney General, argued that Virginia prison regulations are necessary, "for the control and management of an offender population with unique security, custodial and programmatic needs." He said that Virginia, like other states, is "entitled to make the judgment," that those on death row should be confined in maximum-security conditions and segregated from general prison offenders.
According to a recent report by the Liman Program at Yale Law School and the Association of State Correctional Administrators, approximately 80,000 to 100,000 people were in segregation in 2014.
California recently settled a lawsuit brought by prisoners who stayed in prolonged confinement. At Pelican Bay State Prison, more than 500 prisoners had been held in confinement in Security Housing Units for over 10 years and 78 prisoners had been there for more than 20 years. The settlement agreement will reduce the current solitary confinement population and bring reform.
Jules Lobel, the lead attorney who brought the case for the Center of Constitutional Rights, says the key is developing an alternative for the dangerous inmates to keep them separate from the general population, without isolating them and treating them inhumanely.
"It shouldn't be as prolonged as it has been, and under no circumstances should it be indefinite," he said.
Terry Kupers, a professor at the Wright Institute, says that Raemisch isn't alone. "Many state department of corrections are looking at the immense damage long-term solitary causes in the prisoners, and the expense of maintaining supermax units, and they are turning away from solitary as a management strategy," he said. Kupers says that focus is turning to an effort to look for intensive and safe treatment and rehabilitation interventions to help disruptive prisoners learn the social skills they need to function in general population and then "succeed at going straight in the community."