                     Cite as: 586 U. S. ____ (2018)                     1

                       SOTOMAYOR
                      Statement of, S
                                    J., dissenting
                                     OTOMAYOR   , J.

SUPREME COURT OF THE UNITED STATES
                 JONATHAN APODACA, ET AL.
17–1284                     v.
                   RICK RAEMISCH, ET AL.

                       DONNIE LOWE
17–1289                      v.
                    RICK RAEMISCH, ET AL.
  ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

          Nos. 17–1284 and 17–1289. Decided October 9, 2018


   The petitions for writs of certiorari are denied.
   Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
   A punishment need not leave physical scars to be cruel
and unusual. See Trop v. Dulles, 356 U. S. 86, 101 (1958).
As far back as 1890, this Court expressed concerns about
the mental anguish caused by solitary confinement.1
These petitions address one aspect of what a prisoner
subjected to solitary confinement may experience: the
denial of even a moment in daylight for months or years.
Although I agree with the Court’s decision not to grant
certiorari in these cases because of arguments unmade
and facts underdeveloped below, I write because the issue
raises deeply troubling concern.
——————
  1 See In re Medley, 134 U. S. 160, 168 (1890) (“[E]xperience demon-
strated that there were serious objections to it. A considerable number
of the prisoners fell, after even a short confinement, into a semi-fatuous
condition, from which it was next to impossible to arouse them, and
others became violently insane; others, still, committed suicide, while
those who stood the ordeal better were not generally reformed, and in
most cases did not recover sufficient mental activity to be of any subse-
quent service to the community”).
2                  APODACA v. RAEMISCH

                   SOTOMAYOR
                  Statement of, S
                                J., dissenting
                                 OTOMAYOR   , J.

                             I
  Petitioners Jonathan Apodaca, Joshua Vigil, and Donnie
Lowe were all previously incarcerated in the Colorado
State Penitentiary (CSP). During that time, they were
held in what is often referred to as “administrative segre-
gation,” but what is also fairly known by its less euphe-
mistic name: solitary confinement. As described in a prior
case involving the same prison’s conditions:
       “In administrative segregation at the CSP, each of-
    fender is housed in a single cell approximately 90
    square feet in size. . . . The cell contains a metal bed,
    desk, toilet and three shelves. There is [a] small ver-
    tical glass window that admits light but which, be-
    cause of its placement in relation to the bed, desk and
    shelving, is difficult to access to look out. A light in
    the cell is left on 24 hours a day. The inmates’ daily
    existence is one of extreme isolation. They remain in
    their cells at least 23 hours a day. The cells were de-
    signed in a manner that discourages and largely re-
    stricts vocal communication between cells. [One pris-
    oner could] hear other people yelling and screaming
    but not conversations. All meals are passed through a
    slot in the cell door to the inmate. The inmates have
    little human contact except with prison staff and lim-
    ited opportunities for visitors . . . .” Anderson v. Colo-
    rado, 887 F. Supp. 2d 1133, 1137 (Colo. 2012).
   Under then-operative Colorado Department of Correc-
tions (CDOC) regulations, prisoners like Apodaca, Vigil,
and Lowe were allowed out of their cells five days per
week, for at least “one hour of recreation in a designated
exercise area.” CDOC Reg. No. 650–03, p. 7 (May 15,
2012). That “designated exercise area” was also about 90
square feet in size, but “oddly shaped” and “empty except
for a chin-up bar.” Anderson, 887 F. Supp. 2d, at 1137. As
the prior district court described it:
                    Cite as: 586 U. S. ____ (2018)                 3

                     Statement of SOTOMAYOR, J.

     “It has two vertical ‘windows,’ approximately five feet
     by six inches in size, which are not glassed but instead
     are covered with metal grates. The grates have holes
     approximately the size of a quarter that open to the
     outside. The inmate can see through the holes, can
     sometimes feel a breeze, and can sometimes feel the
     warmth of the sun. This is his only exposure of any
     kind to fresh air.” Ibid.
  During their time at CSP, Apodaca, Vigil, and Lowe
were denied any out-of-cell exercise other than the pre-
scribed hour in that room for between 11 and 25 months.2
In 2015, Lowe, individually, and Apodaca and Vigil, on
behalf of themselves and others similarly situated, filed
lawsuits seeking damages under Rev. Stat. §1979, 42
U. S. C. §1983, in the District of Colorado, alleging that
this deprivation violated their Eighth Amendment rights
to be free from cruel and unusual punishment. Respond-
ents, CDOC Executive Director Rick Raemisch and CSP
Warden Travis Trani, moved to dismiss both cases.3 The
District Court denied both motions to dismiss. The U. S.
Court of Appeals for the Tenth Circuit reversed both
denials, concluding that its prior precedents allowed “rea-
sonable debate on the constitutionality of disallowing
——————
  2 For Apodaca and Vigil, the deprivation lasted 11 months—from

September 2013 to August 2014. Complaint in Apodaca v. Raemisch,
No. 15–cv–845 (D Colo.), Doc. 1, pp. 16–17. For Lowe, it lasted 25
months—from February 2013 to March 2015. Complaint in Lowe v.
Raemisch, No. 15–cv–1830 (D Colo.), Doc. 1, p. 20–21 (Complaint). All
three were later either transferred or released from prison. Brief in
Opposition 1. Lowe has since passed away. Reply Brief 2.
  3 With regard to Apodaca and Vigil’s 11-month deprivation, respond-

ents both contested that there was an Eighth Amendment violation and
claimed qualified immunity. See Motion to Dismiss or Motion for
Summary Judgment in Apodaca, Doc. 18, pp. 6–11. With regard to
Lowe’s 25-month deprivation, respondents did not contest that there
was an Eighth Amendment violation but did again claim qualified
immunity. See Motion to Dismiss in Lowe, Doc. 10, pp. 7–13.
4                      APODACA v. RAEMISCH

                       SOTOMAYOR
                      Statement of, S
                                    J., dissenting
                                     OTOMAYOR   , J.

outdoors exercise for two years and one month” in Lowe’s
case, 864 F. 3d 1205, 1209 (2017), or, moreover, 11 months
in Apodaca and Vigil’s case, 864 F. 3d 1071, 1078 (2017).
  Apodaca, Vigil, and Lowe petitioned this Court for certi-
orari, arguing that the Tenth Circuit had diverged from
the common practice among the Courts of Appeals of
allowing a deprivation of outdoor exercise only when it
was supported by a sufficient security justification. See
Pet. for Cert. in No. 17–1284, pp. 2–3; Pet. for Cert. in No.
17–1289, pp. 2–3. Petitioners are correct that the pres-
ence (or absence) of a particularly compelling security
justification has, rightly, played an important role in the
analysis of the Courts of Appeals.4 But the litigation
before the lower courts here did not focus on the presence
or absence of a valid security justification, and therefore
the factual record before this Court—as well as the legal
analysis provided by the lower courts—is not well suited
to our considering the question now.5 Despite my deep
——————
    4 See,e.g., Pearson v. Ramos, 237 F. 3d 881, 884–885 (CA7 2001)
(reversing judgment for plaintiff who was denied outdoor exercise for a
year after a series of serious infractions, including beating a guard to
the point that he was hospitalized, setting a fire that prompted an
evacuation, and throwing bodily fluids in a medical technician’s face);
Bass v. Perrin, 170 F. 3d 1312, 1316–1317 (CA11 1999) (affirming
summary judgment for defendants where the plaintiffs had, between
them, been convicted of aggravated battery, murder, and attempted
murder since their incarceration and each had attempted to escape
during outdoor recreation); Spain v. Procunier, 600 F. 2d 189, 200 (CA9
1979) (affirming injunctive relief in the absence of “an adequate justifi-
cation” from the State for not providing outdoor exercise for over four
years).
   5 For example, the CDOC regulations in effect during the relevant

time period outlined particular conduct that could justify the imposition
of solitary confinement, including, for example, attempting to harm
seriously or kill another person, organizing or inciting a riot, or at-
tempting to escape from a secure facility. See CDOC Reg. No. 650–03,
p. 4 (May 15, 2012). But those regulations also included provisions that
could be questionable in their application, including a catchall for
“[o]ther circumstances.” See ibid. Here, we have not been presented
                     Cite as: 586 U. S. ____ (2018)                    5

                      Statement of SOTOMAYOR, J.

misgivings about the conditions described, I therefore
concur in the Court’s denial of certiorari. Cf. Perez v.
Florida, 580 U. S. ___, ___ (2017) (SOTOMAYOR, J., concur-
ring in denial of certiorari).
                              II
   I write to note, however, that what is clear all the same
is that to deprive a prisoner of any outdoor exercise for an
extended period of time in the absence of an especially
strong basis for doing so is deeply troubling—and has been
recognized as such for many years. Then-Judge Kennedy
observed as much in 1979, ruling that, in the absence of
“an adequate justification” from the State, “it was cruel
and unusual punishment for a prisoner to be confined for a
period of years without opportunity to go outside except
for occasional court appearances, attorney interviews, and
hospital appointments.” Spain v. Procunier, 600 F. 2d
189, 200 (CA9 1979). And while he acknowledged that
various security concerns—including the safety of staff
and other prisoners and preventing escape—could “justify
not permitting plaintiffs to mingle with the general prison
population,” he observed that those generalized concerns
did “not explain why other exercise arrangements were
not made.” Ibid. The same inquiry remains essential
today, given the vitality—recognized by the Tenth Circuit
in other cases6—of the basic human need at issue. It
——————
with facts in the record explaining what led to this extreme condition of
confinement being imposed on Apodaca, Vigil, or Lowe, or, similarly,
whether permitting outdoor exercise would have meaningfully in-
creased any of the potential risks.
  6 See Fogle v. Pierson, 435 F. 3d 1252, 1260 (2006) (“[W]e think it is

clear that a factfinder might conclude that the risk of harm from three
years of deprivation of any form of outdoor exercise was obvious”);
Perkins v. Kansas Dept. of Corrections, 165 F. 3d 803, 810 (1999) (“[W]e
conclude the district court here erred when it held that plaintiff ’s
allegations about the extended deprivation of outdoor exercise showed
no excessive risk to his well-being” (internal quotation marks and
6                     APODACA v. RAEMISCH

                      SOTOMAYOR
                     Statement of, S
                                   J., dissenting
                                    OTOMAYOR   , J.

should be clear by now that our Constitution does not
permit such a total deprivation in the absence of a particu-
larly compelling interest.
  Two Justices of this Court have recently called attention
to the broader Eighth Amendment concerns raised by
long-term solitary confinement. See Ruiz v. Texas, 580
U. S. ___, ___–___ (BREYER, J., dissenting from denial of
stay of execution); Davis v. Ayala, 576 U. S. ___, ___–___
(2015) (Kennedy, J., concurring). Those writings came in
cases involving capital prisoners, but it is important to
remember that the issue sweeps much more broadly:
whereas fewer than 3,000 prisoners are on death row, a
recent study estimated that 80,000 to 100,000 people were
held in some form of solitary confinement.7 The Eighth
Amendment, of course, protects them all.
  Lowe himself, respondents tell us, was convicted of
second-degree burglary and introduction of contraband—
and he evidently spent 11 years in solitary confinement.
See Brief in Opposition 1, n. 1; Complaint, at 5. It is hard
to see how those 11 years could have prepared him for the
day in July 2015 when he “was released from solitary
confinement directly to the streets,” though his Complaint
mentions that he had found “wor[k] doing construction
labor and [was] striving to establish a life on the streets.”
Ibid. While we do not know what caused his death in May
2018, see Reply Brief 2, n. 2, we do know that solitary
——————
alteration omitted); Bailey v. Shillinger, 828 F. 2d 651, 653 (1987)
(“There is substantial agreement among the cases in this area that
some form of regular outdoor exercise is extremely important to the
psychological and physical well being of inmates, and some courts have
held a denial of fresh air and exercise to be cruel and unusual punish-
ment under certain circumstances”).
  7 See Dept. of Justice, Bureau of Justice Statistics, E. Davis & T.

Snell, Capital Punishment, 2016, p. 2 (Apr. 2018); The Liman Program
& Assn. of State Correctional Adm’rs, Time-In-Cell: The ASCA-Liman
2014 National Survey of Administrative Segregation in Prison, p. ii
(Aug. 2015).
                      Cite as: 586 U. S. ____ (2018)                     7

                      Statement of SOTOMAYOR, J.

confinement imprints on those that it clutches a wide
range of psychological scars.8
  Respondent Raemisch, CDOC’s executive director, him-
self has acknowledged the ills of solitary confinement,9
and I note that Colorado has in recent years revised its
regulations such that it now allows all inmates “access to
outdoor recreation” for at least one hour, three times per
week, subject to “security or safety considerations.”10
Those changes cannot undo what petitioners, and others
similarly situated, have experienced, but they are never-
theless steps toward a more humane system.
  More steps may well be needed. Justice Kennedy, in his
Ayala concurrence, 576 U. S., at ___, referenced Charles
Dickens’s depiction of the ravages of solitary confinement
——————
  8 See, e.g., Davis v. Ayala, 576 U. S. ___, ___ (2015) (Kennedy, J., con-
curring) (detailing psychological effects and citing story of 16-year-old
who was held in pretrial solitary confinement for three years and
committed suicide two years after his release); Grissom v. Roberts, 2018
WL 4102891, *9–*11 (CA10, Aug. 29, 2018) (Lucero, J., concurring); see
also B. Stevenson, Just Mercy 153 (2014) (recounting story of juvenile
prisoner whose “mental health unraveled” in solitary, yielding self-
harm and multiple suicide attempts). See generally Bennion, Banning
the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too
Usual Punishment, 90 Ind. L. J. 741, 753–763 (2015); Betts, Only Once
I Thought About Suicide, 125 Yale L. J. Forum 222 (2016); Grassian,
Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y
325 (2006); Smith, The Effects of Solitary Confinement on Prison
Inmates: A Brief History and Review of the Literature, 34 Crime &
Justice 441 (2006); Calambokidis, Note, Beyond Cruel and Unusual:
Solitary Confinement and Dignitary Interests, 68 Ala. L. Rev. 1117,
1150–1155 (2017);
  9 See Raemisch, Why We Ended Long-Term Solitary Confinement in

Colorado, N. Y. Times, Oct. 12, 2017, p. A25 (“It is time for this unethi-
cal tool to be removed from the penal toolbox”); Raemisch, My Night in
Solitary, N. Y. Times, Feb. 21, 2014, p. A25 (“I felt as if I’d been there
for days. I sat with my mind. How long would it take before Ad Seg
chipped that away? I don’t know, but I’m confident that it would be a
battle I would lose”).
  10 CDOC Reg. No. 600–09, p. 7 (Jan. 1, 2018).
8                  APODACA v. RAEMISCH

                   SOTOMAYOR
                  Statement of, S
                                J., dissenting
                                 OTOMAYOR   , J.

in A Tale of Two Cities, but it is worth appreciating that
the portrayal referenced was not merely the result of a
skilled novelist’s imagination. In 1842, Dickens recounted
his real-life visit to Philadelphia’s Eastern State Peniten-
tiary, in which he described the prisoners housed in soli-
tary confinement there:
    “[The prisoner] is led to the cell from which he never
    again comes forth, until his whole term of imprison-
    ment has expired. He never hears of wife and chil-
    dren; home or friends; the life or death of any single
    creature. He sees the prison-officers, but with that
    exception he never looks upon a human countenance,
    or hears a human voice. He is a man buried alive; to
    be dug out in the slow round of years; and in the mean
    time dead to everything but torturing anxieties and
    horrible despair.” C. Dickens, American Notes for
    General Circulation 148 (J. Whitley & A. Goldman
    eds. 1972).
   Dickens did not question the penal officers’ motives. He
concluded, rather, that they did “not know what it is that
they are doing” and that “very few” were “capable of esti-
mating the immense amount of torture and agony which
this dreadful punishment, prolonged for years, inflicts
upon the sufferers.” Id., at 146. The pain caused was
invisible and inaudible, such that “slumbering humanity”
was “not roused up” to put a stop to it. Id., at 147.
   We are no longer so unaware. Courts and corrections
officials must accordingly remain alert to the clear consti-
tutional problems raised by keeping prisoners like Apo-
daca, Vigil, and Lowe in “near-total isolation” from the
living world, see Ayala, 576 U. S., at ___ (Kennedy, J.,
concurring) (slip op., at 4), in what comes perilously close
to a penal tomb.
