When Robert Dennis Wayne Hope was 22 years old, in 1980, he went on a robbery spree. Using a handgun he robbed five stores. No one was injured. He was sentenced to 80 years to life. After a few years in a maximum security Texas prison, he and another inmate slipped through a hole in the fence and escaped.
In a wild four month spree of freedom in which he used to write letters to his former co-inmates, telling them about life on the outside, like Paul Newman’s character in Cool Hand Luke, Hope committed several more robberies, including dressing up as an armored car driver and walking into banks to pick up deliveries of cash and carjacking an 83 year old man at knifepoint. He appeared on radio shows bragging about his exploits and that “No Texas jail could hold him.” Then in 1994, the authorities finally caught him. He was sentenced to life in prison without parole and has been in solitary confinement ever since. Over 27 years.
We can talk about whether his original sentence of 80 years to life for 5 armed robberies was a fair and just sentence or whether anyone should have any concern over a serial robber who escapes and commits more crime, but we should agree that 27 years in solitary in a 9×4 cell with one hour of recreation in a cage is not a humane way to treat a person. The question is will the Supreme Court think so? Mr. Hope has filed a petition for the Supreme Court after all other courts have turned away his argument that his treatment violates the Eighth Amendment’s cruel and unusual punishment prohibition.
Brief History of Solitary First let’s take a quick look at the history of solitary confinement, an American invention and export. In the 1700s, religious groups, including the Quakers, thought that isolating people in their cells with a Bible would lead to repentance and rehabilitation. That’s when prisons began being called “penitentiaries.” The Walnut Street Jail in Philadelphia expanded to include solitary cells in 1790, and other prisons and jails adopted the approach over the subsequent years.
A few decades later, the Eastern State Penitentiary in Pennsylvania opened in 1829, the first prison built entirely to keep people in solitary confinement. When Charles Dickens visited the facility about a decade later and met with people who were held in isolation, he wrote, “I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body.”
In 1890, the Supreme Court heard a case in which a person had been held in isolation for a month while awaiting execution. The Court stated that this was “an additional punishment of the most important and painful character, and is therefore forbidden by this provision of the constitution of the United States,” adding that experience with solitary confinement over the previous decades had shown the devastating results on people. Based on this decision, and the realization that isolating prisoners in a cell with a Bible was not having the desired effect, by the early 1900s, the practice had largely been abandoned.
Then came Ronald Reagan and his attorney general Ed Meese. Riding tough talk about being “tough on crime” solitary confinement was again introduced into the US criminal justice system with a vengeance (pun intended). The federal and state prison systems began to construct Supermax prisons in which a unit of the facility (or the entire facility) is designed to hold hundreds of people in solitary confinement. Pelican Bay State Prison in California was the first newly constructed supermax prison to open, in 1989. Within 15 years, federal and state supermax prisons had opened in 44 states. You can read about supermaxes and their export across the globe in Dr. Baz Dreisinger’s excellent book “Incarceration Nations” The idea of solitary also arose from a new belief that rehabilitation was meaningless and that the main purpose of prison should just be “locking dangerous people up” So now we have an estimated 61,000 people in the US in solitary confinement on any given day.
Hope? But no one has served more time in solitary than Mr. Hope. His only human contact is with the guards who strip-search and handcuff him before taking him to another enclosure to exercise, alone. He has been allowed only one personal phone call since 1994, when his mother died in 2013. He suffers from depression and paranoia and fears he is going insane from spending all this time in a cell smaller than a compact car parking space.
Last month, Mr. Hope petitioned SCOTUS to consider whether such prolonged isolation can violate the Eighth Amendment, which bars cruel and unusual punishments. Prison officials in Texas do not seem concerned about Mr. Hope’s lawsuit. Last week, they told the Supreme Court that they waived their right to respond and will rely on their prior brief. In that brief, the State wrote that “Hope has no plausible Eighth Amendment claim.” Which I think is an ironic but accurate legal statement.
“While the conditions of Hope’s confinement may be unpleasant and possibly harsh,” the brief said, “he failed to show the conditions are objectively so serious as to deprive him of the minimal civilized measure of life’s necessities.” Prison officials however were also forced to admit that in the current prison where he is housed, even if he is in the general population, Hope does not present a flight risk any more.
The two fiercest opponents of solitary confinement on the modern SCOTUS bench have been Justice Kennedy and Justice Breyer; one of whom is gone and the other of whom is going. We have to ask ourselves, why bother having a Constitutional amendment prohibiting cruel and unusual punishment if it does not cover two decades served under these conditions?
The United Nations special rapporteur on torture, Juan E. Méndez, deemed that prolonged solitary confinement is a form of torture, and the UN’s Mandela Rules dictate that it should never be used with youth and those with mental or physical disability or illness, or for anyone for more than 15 days. FIFTEEN DAYS.
Currently NYC Mayor Eric Adams is looking to bring back solitary arguing its an effective way to deter crime in prison, even though statistics show the exact opposite. The 2016 National Institute of Justice report found that few studies have focused on the effect of solitary confinement on subsequent misconduct (including violence against staff). A significant, thorough study in Ohio found no evidence of any effect of solitary on subsequent violent misbehavior. In states like Colorado and North Dakota, which have dramatically reduced the number of people in solitary confinement over the past several years, corrections directors report that no increase in violent incidents against corrections staff.
Mr. Hope has not been found guilty of violating any prison rules since his re-arrest; he has never attacked a guard or a corrections worker or a fellow inmate. Sentenced to 80 years at the age of 22 for five robberies and then life in prison for four more robberies is a harsh enough sentence. Adding nearly three decades of solitary confinement to that is cruel and unusual in my view. But with the current status of the SCOTUS bench, the most likely result is that his petition will be denied, with a brief opinion that’s either 6-3 or 5-4 (if Roberts agrees that it should be heard). And that will say something about who we are as a nation.
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