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Fourth Circuit Turns its Attention to Solitary Confinement . . . Good.

July 2nd, 2015
Elizabeth Franklin-Best

Yesterday, the Fourth Circuit published its opinion in Incumaa v. Stirling, No. 14-6411.  Great work, Georgetown University Law Center, Appellate Litigation Program!

I represent (and have represented) numerous inmates housed in solitary confinement.  The conditions are deplorable and dehumanizing.  After our state court lawsuit, T.R, et al. v. South Carolina Department of Corrections resulted in a strongly worded Order authored by Judge Michael Baxley, I had hoped that things would improve, but they have not.  In fact, they are as inhumane as ever.  The word “Medieval” immediately comes to mind, and I personally observed a Lieutenant brag to a Sergeant about “lightin’ up two of them this morning!” which I came to realize meant that the correctional officers had gassed two inmates in a particular Restricted Housing Unit before I made my visit at 11:00 that morning.  I am preparing a lawsuit on the issue on behalf of a deceased inmate, so I’m glad to see that our courts are seriously assessing this situation.

Mr. Incumaa is a Five Percenter and was identified as participating in a prison riot in 1995.  Since then, he has been designated “STG” due to his association (Security Threat Group) and housed in “SMU” (Special Management Unit).  These units are highly restrictive, lacking access to commissary and educational opportunities.  Mr. Incumaa has also been subjected to repeated intrusive body cavity searches.  He has not had a single disciplinary infraction in the 20 years he has been housed at SMU.

The Fourth Circuit let stand the district court’s grant of summary judgment for the prison on Incumaa’s religion claim—Mr. Incumaa argued his continued placement in SMU was really a violation of his religion because, if he renounced, he could move back to general population.  The Fourth Circuit rejected that, reasoning that he “failed to show that his religious beliefs, rather than his choice to participate in a riot, are the proximate cause of his continued solitary confinement.”

It is the due process claim, however, that is particularly interesting and meaningful.  The Court strongly suggests that South Carolina’s system for reviewing those housed in these units is not adequate to protect their liberty interests (the finding of a liberty interest in necessary to make a showing of a due process claim).

After finding that the “baseline” for assessing “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” for Incumaa is “general population” (as opposed to say, “death row”), the Court concluded that Incumaa has a liberty interest in the conditions of his confinement.

So here is how Incumaa’s continued placement in SMU was assessed by the Department of Corrections—The “ICC” (Institutional Classification Committee) reviewed his candidacy for release every 30 days.  It did so, and then sent a note of its decision to him within 48 hours.  The ICC did not have to provide any factual basis for its decision and he had no right to contest their decision. Although housed for 20 years, it appears the appellate record only included 64 “decisions” (there should have been about 240 per my math). That’s it!

The Court found the risk of erroneous deprivation “exceedingly high” here, and notes that SC’s system “stands in contrast” to other cases that have been reviewed by both the Fourth Circuit and the United States Supreme Court.

The South Carolina Department of Corrections simply does not take its responsibility to humanely house inmates seriously.  The Prison Litigation Reform Act (PLRA), which was intended to reduce “frivolous lawsuits” has created an environment where anything goes.  These inmates need lawyers, but under the PLRA they cannot be reasonably compensated.  Hidden from view, our prisons continue to warehouse human beings without regard to Constitutional standards that have been articulated by the Courts.  Without lawyers, who’s there to make them?

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