The Supreme Court’s decision in the case of Hector Ayala, who has been on California’s death row for 25 years, turned on the question of whether a judge could hear a prosecutor’s reasons for dismissing people from the jury pool without the defendant’s lawyer being present. On Thursday, the court ruled 5-4 that excluding the lawyer was a harmless error.
That result was perhaps not surprising from the court’s conservative majority. What was remarkable, however, was Justice Anthony Kennedy’s remarks, in his concurring opinion, about Mr. Ayala’s decades in solitary confinement. While he agreed with the majority on the result, Mr. Kennedy wrote separately to address what has become one of his most pressing concerns: America’s broken criminal justice system in general, and prolonged solitary confinement in particular.
It is likely, Mr. Kennedy wrote, that Mr. Ayala “has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone.” The Supreme Court has rarely mentioned this practice, and it has never ruled on whether the practice violates the constitutional ban on cruel and unusual punishments. But as Justice Kennedy wrote, this sort of “near-total isolation exacts a terrible price,” long understood by courts and commentators.