What Anthony Kennedy’s retirement means for solitary confinement and the death penalty

Anthony Kennedy, long the swing vote on many of the Court’s most ideologically charged decisions, announced his retirement on Wednesday.

Among the contentious issues that will most likely be affected by his departure is criminal justice. Simply put, a Court without Kennedy (and with a new Trump appointee) will probably reject challenges to two practices Kennedy has previously opposed: solitary confinement and capital punishment.

Currently, there appears to be a five-justice majority on the Supreme Court for sharply limiting solitary confinement in America. Without Kennedy, that majority has evaporated, likely replaced with a harder-line majority that could preserve the practice.

In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death-penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his 25-plus years in prison.

”Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price,” Kennedy wrote. “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice.

Sharon Dolovich, a law professor at UCLA and faculty director of the university’s Prison Law & Policy Program, told me in 2016 that solitary confinement was the “one major unresolved issue” in criminal justice “that is definitely going to come up” in the next few years.

It’s a long time coming. At any given moment, about 80,000 to 100,000 people are held in solitary confinement in the US; in many states, the average stint in solitary lasts years. And it’s been that way at least since the 1980s, without any federal court intervention to halt it.

”There’s so much data now — physiological data, psychological data, reentry data — there’s so much data making clear the extended physical, psychological, and emotional trauma that people suffer in extended solitary confinement, it would be so easy for the Court just to point to it all and conclude there’s an objective harm,” Dolovich said.

Jonathan Simon, a law professor and director of the Center for the Study of Law and Society at UC Berkeley, also speaking in 2016, told me that solitary confinement is on “the verge of being found unconstitutional, at least in its most excessive forms.” Just what “excessive” means there is, naturally, a matter of debate, and Simon cautions that the Court could err on the side of giving prisons too much leeway.

He noted that Ashker v. Brown, a recent case challenging solitary confinement in California that ended in a settlement rather than reaching the Supreme Court, “involved a class of inmates that had been held more than 10 years, and the settlement will still allow people to be held up to five years, and even after that they can still be held in solitary if they’re given programming and special services.” By contrast, the United Nations special rapporteur on torture has called for an absolute ban on solitary confinement lasting 15 days or more. “I’m not sure Kennedy or any justice would go nearly that far,” Simon says.

But without Kennedy on the court, a ruling going even as far as a five-year maximum becomes less likely.

Solitary confinement is not the only case where a more conservative justice could make a difference. In 2011, Kennedy wrote a 5-4 decision upholding a lower court order that California release tens of thousands of prisoners to reduce overcrowding, which the state itself admitted was unconstitutional. It was, Simon told me, “the first prisoners’ rights decision to come down in favor of the prisoner in a long time. It ended mass incarceration in California.” More decisions like that could come if Kennedy stays on the court.

Kennedy was also the best hope that opponents of capital punishment have for a ruling against the practice, even though he’s often sided with conservatives in some past death penalty cases on the constitutionality of, say, using a particular lethal injection method.

Back in 2016, Simon told me that he was “somewhat optimistic” that Kennedy would join with Breyer and Ginsburg (who have already declared their belief that capital punishment is across-the-board unconstitutional), Sotomayor, and Kagan in an anti-death penalty case. “The reason … goes back to his interest in dignity,” Simon said. “The strongest of the opinions in Furman” — the 1972 case that briefly abolished capital punishment — “was William Brennan’s, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can’t carry out without respecting the dignity of those being punished.”

Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case. Simon even found an early Kennedy opinion from when he was a circuit court judge in the 1970s in which he quoted Brennan’s concurrence in Furman at length.

Even if Kennedy didn’t buy a dignity argument for abolishing the death penalty, Simon said he thought Kennedy would be swayed by the issue of delays, which Breyer raised in his 2015 anti-capital punishment dissent — and which were the entire reason for the prisoner’s stay in solitary confinement that Kennedy assailed in his concurrence last year.

”[Kennedy] came and gave a talk at Berkeley Law about a year and a half ago, and one of my colleagues was rude enough to ask him point blank whether he thought the death penalty was compatible with human dignity,” Simon told me. “Of course he declined to answer, but he said kind of cryptically, ‘Here in California you guys take so long enough to execute people that we may not even need to reach that cliff.’”

This is all moot now that Kennedy is gone, and sure to be replaced by a more doctrinaire supporter of capital punishment.

Having him off the bench will also prevent incremental steps against capital punishment from going forward. In 2008, Kennedy wrote for a 5-4 liberal majority that it was unconstitutional to impose the death penalty on people convicted merely of rape, not murder. Without him on the Court, incremental limitations on capital punishment’s scope become less likely.