The practice of solitary confinement has been utilized by the American penitentiary system since its inception. The deleterious health and mental health consequences stemming from this type of correctional practice have led several clinical researchers and legal advocates to call for solitary confinement’s abolition based on constitutional prohibitions against cruel and unusual punishment. However, the U.S. Supreme Court has not found that the conditions of isolative confinement establish a legal threshold sufficient to legitimate such a ban. In fact, Justice A. Scalia famously argued that although it may be true that solitary confinement is cruel, it is certainly not unusual and is therefore not prohibited by the Constitution. This judicial attitude coincides with the more general proclivity of the Court, which has articulated a position against becoming overly involved in the administration of American penitentiaries. If it is true that the Constitution does not stop at the jail house door, then how do we make sense of the U.S. Supreme Court’s position on solitary confinement?

In this article, we explain how solitary confinement reflects the blurring of the legal and the political (a state of exception), and we describe how the Court’s cruel-but-not-unusual justification sustains what Agamben has called a zone of indifference. As we demonstrate, the legal arguments offered by the Court simply reflect the institutionalization of this process. This process reveals the narrative construction of captivity’s laws at the level of U.S. Supreme Court decision making. These laws endorse the ideology of rationalized retribution.

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