Tuesday, June 23, 2015

Epps on Kennedy on Solitary Confinement in Ayala

Mary L. Dudziak

Mark Graber has posted on the substance of the Court's opinion in Davis v. Ayala. Balkinization readers may also be interested in Daniel Epps' post elsewhere on Justice Kennedy's concurrence. He writes that "buried in Ayala is something extraordinary: a strong hint from the Court’s swing justice that he wants to rein in solitary confinement—and soon."

Kennedy's concurrence speaks directly to us as academics. Though citing some of the literature on incarceration, he writes:  "Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind."

A robust literature on mass incarceration and its consequences (e.g. here and here) belies Kennedy's sweeping statement about the academy. But his opinion underscores its importance, ending with this:
"Over 150 years ago, Dostoyevsky wrote, 'The degree of civilization in a society can be judged by entering its prisons.' The Yale Book of Quotations 210 (F. Shapiro ed.2006). There is truth to this in our own time."

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