The Tenth Circuit’s cowardly refusal to decide whether 20 years in solitary violated prisoner’s constitutional rights

Solitary confinement is one of the cruelest, most severe conditions that our criminal justice system may impose on prisoners. The combination of tiny cells (sealed to block all outside light and sound), lack of human interaction, and extremely limited access to the outside world add up to a treatment that is a mere stone’s throw from outright sensory deprivation torture. The long-term, injurious effects on prisoners for even short periods of such confinement, in terms of both physical and mental health, is extremely well documented. If this practice has any legitimate role in our penal system, it should only be as a last resort in the most extreme and dangerous cases.

But in an act of outright barbarism, Kansas prison officials kept Richard Grissom in extreme solitary confinement conditions for twenty years — for essentially no penological reason. Mr. Grissom was, to be sure, a convicted murderer serving four consecutive life sentences, but his placement in solitary had nothing to do with any history, or even alleged risk, of violence toward prison staff or other inmates. Rather, these decades of practical torture were based entirely on allegations that he was trafficking drugs — in 1996. Over the course of his confinement, twenty-five different segregation reviews gave exactly one “reason” for his continued treatment: “Placement facts still apply.”

In light of this outrageous and unjustified treatment, Mr. Grissom brought a civil rights lawsuit against several prison officials, alleging violations of his constitutional due process rights (among other claims). But when his case came before the Tenth Circuit, the court rejected his claims, and granted qualified immunity to the defendants, based on that all-too-common refrain: that their conduct did not violate “clearly established law,” because Mr. Grissom didn’t identify a Supreme Court or Tenth Circuit case directly on point.

But to make matters worse, the Tenth Circuit refused even to say whether there was a constitutional violation in the first place. Under the doctrine of qualified immunity, plaintiffs must show both that there was a violation of their constitutional rights, and that those rights were “clearly established.” But in the 2009 decision Pearson v. Callahan, the Supreme Court said that courts are allowed to decide these issues in either order. In other words, a court can say “whether or not this was actually unlawful, it didn’t violate clearly established law, so we grant qualified immunity.” The perverse result of this approach is that, by holding only that the law was not clearly established, the law does not become clearly established — a vicious circle.

By refusing to address the merits of Mr. Grissom’s claims, the Tenth Circuit has essentially given the green light to all prison officials in its jurisdiction to proceed with such reckless, abusive treatment of prisoners. The court’s cowardly balk on this question is all the more offensive because it is not even that difficult a question in the first place. One member of the three-judge panel — Carlos Lucero — wrote separately to say that, while he agreed the law was not clearly established, he would have first held that Mr. Grissom’s constitutional rights were, in fact, violated. But the panel majority — although offering no objection to Judge Lucero’s analysis — refused to say as much, which means that prisoners in the Tenth Circuit will continue to have their rights violated with impunity.

Compare this case to that of Allah v. Milling, in which a prisoner alleged due process violations after being kept in solitary confinement for “only” seven months, without justification. There, while the Second Circuit erroneously granted qualified immunity to the defendants, it at least had the decency to first hold that Mr. Allah’s rights were violated. But here, where Mr. Grissom spent, not seven months, but twenty years in solitary — with similarly insufficient justification — the Tenth Circuit refused to even make a decision on the merits.

This case therefore vividly illustrates the grotesque nature of qualified immunity — a made-up doctrine that lacks any valid textual or historical basis. Not only does it deny justice to victims whose rights are violated, but it also eviscerates accountability for public officials — especially when courts, like the Tenth Circuit here, refuse to even decide whether those officials were breaking the law. Until and unless this doctrine is abolished — either by the Supreme Court or Congress — similar injustices will continue to abound.