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INMATE HELD IN SOLITARY FOR 20 YEARS MAY SUE, 4TH CIRCUIT SAYS


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7/6/2015
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An inmate placed in solitary confinement for 20 years after participating in a violent prison riot is entitled to sue for a due process violation, a federal appeals court has ruled.

The court revived a suit filed by Lumumba Incumma, who has been left in solitary in a South Carolina prison though he hasn’t committed a single disciplinary infraction during those 20 years. How Appealing links to a story by the Associated Press and the opinion (PDF) by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals.

The appeals court said Incumma’s 20 years in solitary “amounts to atypical and significant hardship in relation to the general population and implicates a liberty interest.” The court also said there is a triable issue as to whether the prison’s process for determining release from solitary meets minimum requirements of procedural due process.

In the maximum security unit where Incumma was held, inmates are rarely allowed to leave their cells. They get one hour of recreation about 10 times a month, and a 10-minute shower three times a week. Their food portions are smaller than in the general prison population, and they have to eat in their cells. They are denied canteen privileges, educational and vocational opportunities, and mental health treatment, the opinion said.

Inmates are placed in the unit if they have disciplinary infractions and are members of a “security threat group.” Incumma was a member of the Nation of Gods and Earths, an offshoot of the Nation of Islam that is also known as the Five Percenters. The Five Percenters have a history of violence, and the prison treated it as a violent gang.

The July 1 opinion was issued less than a month after Justice Anthony M. Kennedy remarked on solitary confinement in Davis v. Ayala, which found a defense lawyer’s exclusion from a Batson hearing was harmless error.

Kennedy’s concurrence (PDF) said the death row defendant, who was convicted of a triple murder, had spent most of his 25 years in prison in solitary confinement, which “exacts a terrible price.” Kennedy said the precise details of the confinement weren’t established in the record.

“Yet if his solitary confinement follows the usual pattern,” Kennedy said, “it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone.”

Kennedy said that discussion about the criminal justice system often concentrates on adjudication of guilt or innocence. “Too easily ignored is the question of what comes next,” Kennedy said. “Prisoners are shut away—out of sight, out of mind.”

Kennedy said there are indications of “a new and growing awareness” of the subject of solitary confinement, citing an article about a youth, Kalief Browder, held in solitary for almost two years after he was accused of stealing a backpack. Browder committed suicide in June, about two years after his release from prison, at the age of 22.

If presented with the proper case, Kennedy said, the judiciary might be required to decide “whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”



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