The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness

54 Pages Posted: 1 Apr 2012 Last revised: 17 Feb 2013

See all articles by Thomas L. Hafemeister

Thomas L. Hafemeister


Jeff George

University of Virginia School of Law

Date Written: February 13, 2013


The increasing number of inmates with a mental disorder in America’s prison population and the inadequacy of their treatment and housing conditions have been issues of growing significance in recent years. The U.S. Department of Justice estimates that “over one and a quarter million people suffering from mental health problems are in prisons or jails, a figure that constitutes nearly sixty percent of the total incarcerated population in the United States.” Furthermore, a person suffering from a mental illness in the United States is three times more likely to be incarcerated than hospitalized, with as many as forty percent of those who suffer from a mental illness coming into contact with the criminal justice system every year and police officers almost twice as likely to arrest someone who appears to have a mental illness. As a result, the United States penal system has become the nation’s largest provider of mental health services, a “tragic consequence of inadequate community mental health services combined with punitive criminal justice policies.”

This growth in the number of inmates with a mental disorder, combined with the recent rise in the use of prolonged supermax solitary confinement and the increasingly punitive nature of the American penological system, has resulted in a disproportionately large number of inmates with a mental disorder being housed in supermax confinement. The harsh restrictions of this confinement often significantly exacerbate these inmates’ mental disorders or otherwise cause significant additional harm to their mental health, and preclude the delivery of proper mental health treatment. Given the exacerbating conditions associated with supermax settings, this setting is not only ill-suited to the penological problems posed by the growing number of these inmates but also intensifies these problems by creating a revolving door for many such inmates who are unable to conform their behavior within the general prison environment.

Housing inmates with a mental disorder in prolonged supermax solitary confinement deprives them of a minimal life necessity because this setting poses a significant risk to their basic level of mental health, a need “as essential to human existence as other basic physical demands,” and thereby meets the objective element required for an Eighth Amendment cruel and unusual punishment claim. In addition, placing such inmates in supermax confinement constitutes deliberate indifference to their needs because this setting subjects this class of readily identifiable and vulnerable inmates to a present and known risk by knowingly placing them in an environment that is uniquely toxic to their condition, thereby satisfying the subjective element needed for an Eighth Amendment claim. Whether it is called torture, a violation of evolving standards of human decency, or cruel and unusual punishment, truly “a risk this grave — this shocking and indecent — simply has no place in civilized society.”

Keywords: Criminal Justice, Prisons, Conditions of Confinement, Inmates, Solitary Confinement, Supermax Facilities & Units, Mental Disorders & Mental Illness, Eighth Amendment, Cruel & Unusual Punishment

Suggested Citation

Hafemeister, Thomas L. and George, Jeff, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness (February 13, 2013). 90(1) Denver University Law Review 1 (2012), Virginia Public Law and Legal Theory Research Paper No. 2012-39, Available at SSRN:

Jeff George

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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