then life as we currently understand it is

…IF… our courts should decree that human beings do NOT have the right to breathe fresh (healthy) air … then life as we currently understand it is over…

The Supreme Court might decide whether humans have a constitutional right to fresh air


Rebecca Pilar Buckwalter Poza Daily Kos StaffTuesday May 15, 2018 · 9:59 AM PDT


As rumors of his retirement percolate, scrutiny is mounting on Supreme Court Justice Anthony Kennedy. He’s key to voting rights, LGBT rights, and, less prominently, prisoners’ rights, at least when it comes to solitary confinement. Now, a new case in which the Court has just requested additional briefs raises the question: Will Kennedy seize a new (and potentially final) opportunity to chip away at solitary confinement?

Over the course of multiple prison sentences, Donnie Lowe has spent 11 years in solitary confinement, including more than two years of solitary confinement in Colorado’s prison system. During that time, he was “denied all access to outdoor recreation.” He sued, succeeding in getting the district court and the Tenth Circuit Court of Appeals—that’s Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—to agree that extended deprivation of outdoor activity would indeed be unconstitutional. Now, the Supreme Court may take up his case—and a companion case—with respect to prisoners’ prerogative to hold officials accountable. There’s every reason to think Kennedy’s keen to do so.

In 2015, Kennedy told a crowd at Harvard Law that solitary confinement “drives men mad.” That’s the same year he wrote a concurring opinion going further than his Supreme Court colleagues were willing to condemn solitary confinement.

“Years on end of near total isolation exact a terrible price,” he wrote, noting that “common side effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”

He followed that observation with an invitation, couched in legal terms:

In a case that presented the issue [of solitary confinement’s constitutionality], 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.

Lowe’s appeal doesn’t squarely challenge solitary confinement as a practice. It’s limited to the narrower issue of whether inmates have a constitutional right to occasional fresh air, essentially. What’s interesting is that Kennedy addressed exactly this aspect of solitary confinement before ascending to SCOTUS.

About 40 years ago, when Kennedy was on the Ninth Circuit—hearing appeals from Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington—he wrote for a three-judge panel affirming an order directing a prison to give inmates an hour outside, five days a week. Surveying other cases, he noted, “some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates.”

Although Kennedy & Co. described multi-year indoor confinement save “occasional court appearances, attorney interviews and hospital appointments” as cruel and unusual, they stopped short of declaring it “cruel and unusual punishment” of the type that’s barred by the Eighth Amendment. This new Supreme Court case gives him the chance to address that question and create binding precedent for the entire country, not just the Ninth Circuit states. It could be a boon for prisoners, though it’s not likely to help Lowe.

The Tenth Circuit found that prison officials are protected by qualified immunity, the legal doctrine that protects officials from liability as long as they don’t violate clearly established rights, because the unconstitutionality of a ban on outdoor exercise wasn’t clearly established, and because it wasn’t clear that two years of that deprivation was long enough to violate Lowe’s rights.

It’s dubious that Lowe can surmount the barriers to holding officials accountable, but he just might prevail in ensuring no one else has to struggle to do so in the future.


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