The artwork on this note card was created by 5768 WRJ Art Calendar artist Césan d’Ornellas Levine.
The Supreme Court term that just came to an end was extremely significant, and not just because of the historic healthcare and marriage equality rulings. Throughout the term, we saw a number of important criminal justice cases argued and decided, and though some of them did not go the way we would have hoped, important questions were raised about the way that “justice” is carried out in our criminal justice system.
Listen Now: Hear from Slate's Dahlia Lithwick and Commission on Social Action Director Barbara Weinstein for a review of the Supreme Court's decisions from this term and their implications for moral advocates.
One notable case was Davis v. Ayala. Though the Court was deciding whether or not a constitutional error that may have occurred by excluding the defendant’s attorney from part of a hearing was harmless, Justice Kennedy authored a powerful five-page concurrence criticizing the widespread use of solitary confinement in American prisons.
Currently, the United States holds at least 80,000 prisoners in isolation, more than any other country in the world. Prisoners in solitary confinement are held alone, or with another person, in a small cell for 22-24 hours a day and deprived of human contact, natural sunlight, and productive activities for months, years, or even decades… Prisoners in solitary confinement [often] become victims of cognitive and memory problems, perform ritualistic compulsive acts, and suffer from severe depression.
Though the Court rarely mentions solitary confinement and has never ruled on whether the practice violates the constitutional ban on cruel and unusual punishment, Justice Kennedy writes that this sort of “near-total isolation exacts a terrible price” that is long understood by courts and commentators.
As an example, Justice Kennedy cites the case of Kalief Browder, a young man from New York City who spent three years in Rikers Island without trial for allegedly stealing a backpack. He spend two of those years in solitary before being released without ever being charged or tried for the alleged crime. Browder struggled with psychiatric issues after being released and committed suicide this month at the age of 22. Justice Kennedy cited Browder’s case to show the real consequences of solitary confinement question its use.
Another significant case was Glossip v. Gross which asked if the use of a key drug in lethal injections prevented cruel and unusual punishment. Though the Court found there to be no constitutional problem with the use of the drug, Justice Stephen Breyer, in a dissent joined by Justice Ginsburg, called for a renewed legal debate about the use of the death penalty.
Justice Breyer wrote the “it is now time to reopen the questions,” adding that the past 40 years of the death penalty in America have led him to believe “that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’” He explained that “the factors that most clearly ought to affect application of the death penalty — namely, comparative egregiousness of the crime — often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do” (p. 11).
Deuteronomy 16:20 commands “tzedek tzedek tirdof,” (justice, justice shall you pursue). By repeating the word justice, our tradition emphasizes the importance of truly being just in our pursuit of justice. As Jews seeking to be just in our pursuit of justice, we eschew the use of solitary confinement and have long been opposed to the death penalty. We hope that the words of Justices Kennedy and Breyer will help advance the efforts to end solitary confinement and abolish the death penalty.
For more information on the RAC’s work on criminal justice reform, visit our website.