His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.
"Years on end of near-total isolation exacts a terrible price," he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized "even for prisoners sentenced to death, solitary confinement bears 'a further terror and a peculiar mark of infamy.'"
Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty.
"In a case that presented the issue, the judiciary may be required," he wrote, "to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them."
Amy Fettig, an attorney for the ACLU's National Prison Project, said Kennedy's comments came as a welcome surprise.
"It's a remarkable statement. The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement," she said.
States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said. "They are automatically placed there. It has nothing to do with their being violent or their level of dangerousness," she said.
This month, a federal judge in Virginia is weighing a "cruel and unusual punishment" claim brought by inmates on death row there, she noted.
Kennedy usually joins with the court's conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. Four years ago, he spoke for a 5-4 majority that condemned overcrowding in California's prisons and said it resulted in unconstitutionally cruel conditions.
Both sides of Kennedy's views were evident in Thursday's decision. He joined a 5-4 majority to reject a San Diego murderer's bid for a new trial, but wrote separately to raise the issue of possible constitutional limits to solitary confinement.
The case before the court involved Hector Ayala, who had been convicted and sentenced to die for shooting to death three men in the attempted robbery of an auto body shop in 1985. A fourth man had been shot, but survived and identified Ayala as the shooter.
Ayala has been on California's death row ever since his conviction a generation ago. The California courts upheld his conviction and death sentence, but two years ago a U.S. 9th Circuit Court of Appeals panel overturned both. In a 2-1 decision, the appeals court cited the trial judge's decision permitting prosecutors to remove all seven of the blacks and Latinos who were considered for the jury.
The Supreme Court reversed that decision and restored Ayala’s conviction and death sentence. Justice
In his separate opinion, Kennedy said he agreed Alito's opinion was "complete and correct," but said he was nonetheless troubled to learn Ayala had been kept in solitary confinement. This means he 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," he wrote. An estimated 25,000 inmates in the United States are being held in solitary confinement without regard to their conduct in prison, he added.
Kennedy's comments drew a short, but sharp retort from Justice
"The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest. And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth," Thomas wrote.