PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                   _____________

                    No. 14-1469
                   _____________

                 CRAIG WILLIAMS,
                            Appellant
                        v.

  SECRETARY PENNSYLVANIA DEPARTMENT OF
 CORRECTIONS; DORINA VARNER, Chief Grievance
   Coordinator; TINA FRIDAY, Records Officer, in her
 individual and official capacity; JEFFREY R. ROGERS,
Manager, in his individual and official capacity; TRACY
SHAWLEY, Grievance Coordinator, in her individual and
 official capacity; LOUIS FOLINO, in his individual and
                      official capacity
                      _____________

      APPEAL FROM THE UNITED STATES
 DISTRICT COURT FOR THE WESTERN DISTRICT
                OF PENNSYLVANIA
                 (No. 2-12-cv-00944)
     District Judge: Honorable Mark R. Hornak
                  _____________

                   No. 15-1390
                  _____________

               SHAWN T. WALKER,
                          Appellant
                      v.

MICHAEL A. FARNAN; SECRETARY PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; SUPERINTENDENT
GRATERFORD SCI; CINDY G. WATSON, and others to be
                 named later
                _____________


       APPEAL FROM THE UNITED STATES
  DISTRICT COURT FOR THE EASTERN DISTRICT
                  OF PENNSYLVANIA
                   (No. 2-07-cv-04977)
      District Judge: Honorable R. Barclay Surrick
                     _____________

                      Argued
                   April 18, 2016
                   ____________




                         2
    Before: McKEE*, Chief Judge, FUENTES*, and ROTH,
                     Circuit Judges.

             (Opinion Filed: February 9, 2017)
                     ______________


James J. Bilsborrow, Esq. [ARGUED]
Weitz & Luxenberg
700 Broadway
New York, NY 10003

       Attorney for Appellants

John G. Knorr, III, Esq. [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120

Kemal A. Mericli, Esq.
Office of Attorney General of Pennsylvania
564 Forbes Avenue
6th Floor, Manor Complex
Pittsburgh, PA 15219




*
  Judge McKee was Chief Judge at the time this appeal was
argued. Judge McKee completed his term as Chief Judge on
September 30, 2016.
*
  Judge Fuentes assumed senior status on July 18, 2016.




                                 3
Randall J. Henzes, Esq.
Claudia M. Tesoro, Esq.
Office of Attorney General of Pennsylvania
3rd Floor
21 South 12th Street
Philadelphia, PA 19107

      Attorneys for Appellees

                      ______________

                OPINION OF THE COURT
                    ______________

McKEE, Circuit Judge.

                   I. INTRODUCTION

       We are asked to decide whether there is a
constitutionally protected liberty interest that prohibits the
State from continuing to house inmates in solitary
confinement1 on death row after they have been granted
resentencing hearings, without meaningful review of the
continuing placement. For the reasons set forth below, we
conclude that there is and that the Due Process Clause of the
Fourteenth Amendment therefore limits the State’s ability to
subject an inmate to the deprivations of death row once the
death sentence initially relied upon to justify such extreme


1
 This level of confinement is also sometimes referred to as
“administrative segregation.”




                                4
restrictions is no longer operative.2 However, we also hold
that, because this principle was not clearly established before
today, the prison officials (“Defendants”) in this consolidated
appeal are entitled to qualified immunity.

       Accordingly, we will affirm the district courts’ grants
of summary judgment in favor of Defendants based on
qualified immunity. In reaching this conclusion, we stress
that this liberty interest, as explained more fully below, is
now clearly established.

       II. FACTS AND PROCEDURAL HISTORY

       Craig Williams and Shawn T. Walker (“Plaintiffs”)3
are inmates in the custody of the Pennsylvania Department of
Corrections (“DOC”). Each was sentenced to death and
housed on the death row of his respective institution
following imposition of his death sentence. Eventually, their
death sentences were vacated, but several years elapsed
before they were resentenced to life without parole.4 In the

2
  Plaintiffs have both had their death sentences vacated but
were nevertheless detained in solitary confinement on death
row. We take no position on whether any inherent risk posed
by inmates whose death sentences are still active and viable is
sufficient to raise a presumption that their continued
confinement on death row is justifiable.
3
  This Court consolidated Williams’s and Walkers’ appeals.
We thank James J. Bilsborrow, Esq., appointed counsel, for
his pro bono representation of Plaintiffs in this matter.
4
  “Vacated” as used throughout this opinion refers to
situations where a defendant has initially been sentenced to




                               5
interim, Plaintiffs were kept on death row until their appeals
were finally decided. Accordingly, they spent several years
in the solitary confinement of death row from the date their
death sentences were vacated, until they were finally
resentenced to life imprisonment and placed in the general
population.5

      After their sentences were vacated, each Plaintiff
brought suit seeking damages6 from various DOC officials.7


death, but has subsequently been granted a new sentencing
hearing.
5
  As defined by DOC policy, the “general population” is a
“status of confinement for an inmate who is not in
Administrative or Disciplinary Custody or other type of
special housing.” DC-ADM 802, Administrative Custody
Procedures, JA at 94 ¶E.
6
  Walker sued Defendants in their individual capacities. He
initially sought injunctive and declaratory relief in addition to
damages. His transfer from death row mooted all but his
damages claim. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d
Cir. 2003) (per curiam) (“An inmate’s transfer from the
facility complained of generally moots the equitable and
declaratory claims.”).
7
  Williams sued Defendants in their individual and official
capacities. He filed suit against John Wetzel, Secretary
Pennsylvania DOC; Dorina Varner, Chief Grievance
Coordinator; Tina Friday, Records Officer; Jeffrey R. Rogers,
Program Manager; Tracy Shawley, Grievance Coordinator;
and Louis N. Folino, Superintendent. Walker filed suit
against Michael A. Farnan, Chief Counsel; Jeffrey A. Beard,
Secretary Pennsylvania DOC; David DiGuglielmo,




                               6
Their suits allege the officials violated their Fourteenth
Amendment rights to due process by continuing to subject
them to the deprivations of solitary confinement on death row
without meaningful review of their placements after their
death sentences had been vacated.8 Inasmuch as the claimed
liberty interest turns on the conditions of Plaintiffs’
confinement, we will first describe those conditions and the
legal authority relied upon to impose it, and then address
whether those conditions violate a constitutionally protected
liberty interest.

A. Confinement on Death Row

       Plaintiffs were placed on death row after receiving
their death sentences pursuant to 61 Pa. Cons. Stat. § 4303,
which provides:
              [T]he secretary [of corrections]
              shall, until infliction of the death
              penalty . . . keep the inmate in
              solitary confinement. During the
              confinement, no person shall be
              allowed to have access to the
              inmate without an order of the
              sentencing court, except the
              following:
              (1) The staff of the department.


Superintendent; and Cindy G. Watson, Chief Grievance
Officer.
8
  Plaintiffs also initially asserted substantive due process and
Eighth Amendment claims against the DOC that they do not
pursue on appeal.




                                7
              (2) The inmate’s counsel of
              record or other attorney requested
              by the inmate.
              (3) A spiritual adviser selected by
              the inmate or the members of the
              immediate family of the inmate.9

Plaintiffs assert that this provision no longer applied to them
once their death sentences were vacated. They further stress
that they did not receive meaningful review of their
continuing placement on death row to determine if the
deprivations of that placement were necessary.

       In total, Walker spent approximately twenty years on
death row. Roughly eight of those years were spent after he
had been granted a resentencing hearing.10 Williams spent
twenty-two years on death row, with six of those years
following his grant of resentencing.11

1. Walker

       After his death sentence was vacated, Walker
remained on death row where he was confined in a
windowless seven by twelve feet cell for almost twenty-four
hours a day. There, like other death row inmates at SCI-
Graterford, he lost “virtually all communication [with] the

9
  61 Pa. Stat. and Cons. Stat. § 4303, formerly codified at §
3003.
10
Walker v. Farnan, No. CIV. A. 07-4977, 2015 WL 390424,
at *1-2 (E.D. Pa. Jan. 29, 2015).
11
   Plaintiffs Br. at 4-6.




                              8
general population and the outside world.”12 Walker was
permitted four (non-legal) visits per month. During those
visits he was “locked in a closet-sized room, behind a
reinforced sheet of glass . . . . [and was] not permitted
physical contact with any of his visitors . . . .”13 Even
Walker’s meals were provided in the isolation of his cell.

        Walker was permitted to leave his cell only five times
a week for two-hour intervals of exercise in the open air, in a
restricted area known as the “dog cage.”14 However, to enter
the “dog cage,” Walker first had to undergo an invasive strip
search.15 To avoid the psychological and physical intrusion
of these “full” body searches, Walker did not leave his cell
for open air exercise for nearly seven years.16

       Walker alleges that his prolonged confinement on
death row in these constricting conditions has taken a toll on
his mental and physical well-being. He describes these

12
   JA at 193 ¶36.
13
   Id. at 195 ¶60.
14
   Id. at 193-94 ¶47.
15
   The precise nature of the strip searches Walker was
subjected to is not evident in the record. Correctional facility
strip searches have been described elsewhere as requiring an
inmate to “lift and shake his genitalia, . . . bend over, spread
his buttocks in the direction of the officer so that he may look
at [the inmate’s] anus, then made to squat and cough, and
afterwards [the inmate is] hand cuffed behind his back[.]”
Incumaa v. Stirling, 791 F.3d 517, 522 (4th Cir. 2015), as
amended (July 7, 2015).
16
   JA at 193-94, 283 ¶6.




                               9
effects as “long term and debilitating.”17 For example, due to
the constant noise of other inmates on death row, and a “fear
of being executed accidentally,” Walker developed
insomnia.18 He also claims to suffer from uncontrollable
body tremors and severe emotional distress.

2. Williams

        Williams’s plight on death row at SCI-Greene was
similar to Walker’s. He remained confined to his cell for
almost twenty-two hours a day after his death sentence was
vacated. His meals were also provided in the confines of his
cell. Williams explains that because medical consultations
were provided at his cell door, inmates in separate cells could
hear his exchanges with medical providers, which
compromised his privacy. During the short intervals that
Williams was not in his cell, but in the prison yard, law
library, or shower, he was held inside a small locked cage that
continued to restrict his movement and freedom of
association. Like Walker, he was only permitted non-contact
visits.

B. Plaintiffs’ Legal Proceedings

       Plaintiffs filed numerous prison grievances based on
continually being subjected to these deprivations. Those
grievances were unsuccessful. Plaintiffs then filed the suits
that are before us in these consolidated appeals. The
procedural background leading to these suits is as follows.

17
     Id. at 195-96 ¶64.
18
     Id. at 194 ¶51.




                              10
1. Williams

        In 1988, Williams was convicted of first degree
murder in the Philadelphia Court of Common Pleas and was
later sentenced to death. Williams’s criminal judgment was
affirmed on direct appeal.19 Williams then pursued relief
under Pennsylvania’s Post Conviction Relief Act
(“PCRA”).20 On July 11, 2006, the trial court concluded that
Williams was entitled to a new penalty hearing. Williams
appealed the court’s denial of his guilt phase claims, but the
State did not appeal the court’s invalidation of the death
sentence that was imposed at the sentencing phase. On May
1, 2012, Williams was resentenced to life imprisonment
without the possibility of parole. Soon thereafter, he was
finally removed from death row at SCI-Greene and placed in
the general population.21

        In July of 2012, Williams filed a pro se and in forma
pauperis action under 42 U.S.C. § 1983 against various DOC
officials. He alleged that his confinement on death row
between the time that he was granted resentencing and the
time his new sentence was imposed violated his substantive
and procedural due process rights. Defendants moved for
summary judgment, contending that Williams’s confinement
while awaiting resentencing did not violate his constitutional

19
   Commonwealth v. Williams, 615 A.2d 716 (Pa. 1992).
20
   42 Pa. Cons. Stat. § 9541 et seq.
21
   Williams did not challenge the delay between his
resentencing, which took place in May, and his transfer into
the general population, which took place in September.




                             11
rights. Defendants also argued that they were entitled to
qualified immunity, a defense they had raised earlier in their
answer to Williams’s complaint.          In a Report and
Recommendation, the assigned Magistrate Judge concluded
that Williams’s Fourteenth Amendment procedural due
process claim failed because he did not have a liberty interest
in being housed in the general prison population.22 The
Magistrate Judge also concluded that because Defendants’
policy of keeping inmates like Williams on death row even
after their death sentences were vacated was grounded in
legitimate penological goals, Williams did not have a
substantive due process claim. 23 Overruling Williams’s
objections, the district court adopted the Report and
Recommendation and granted Defendants’ motion for
summary judgment.24 Williams appealed.

2. Walker

       Walker was also convicted of first degree murder in
the Philadelphia Court of Common Pleas in 1992, and
sentenced to death. The verdict and sentence were affirmed
by the Pennsylvania Supreme Court on direct appeal.25
Walker thereafter filed for relief under the PCRA. In April
2004, the Philadelphia Court of Common Pleas upheld his
conviction but granted a new sentencing hearing. After

22
Will. v. Wetzel, No. CIV. A. 12-944, 2014 WL 252020,
at *5 (W.D. Pa. Jan. 22, 2014). The district court adopted a
magistrate judge’s Report and Recommendation.
23
   Id. at *7-9.
24
   Id. at *1.
25
   Commonwealth v. Walker, 656 A.2d 90 (Pa. 1995).




                              12
additional unsuccessful challenges to his conviction, Walker
was resentenced to life imprisonment without the possibility
of parole on April 12, 2012,26 and transferred to the general
population on May 4, 2012.27

       Before his resentencing, in 2008 Walker filed a pro se
and in forma pauperis § 1983 action alleging that his
confinement on death row after his death sentence had been
vacated violated his Eighth Amendment right to be free from
cruel and unusual punishment as well as his Fourteenth
Amendment right to due process of law.28 Pro bono counsel
was appointed to represent Walker. The district court granted
summary judgment in favor of Defendants.29 The court
concluded that Defendants were entitled to qualified
immunity because the rights Walker asserted were not clearly
established.30     Walker’s appeal from that ruling was
consolidated with Williams’s appeal.
C. DOC Policy
       Defendants argue that the DOC policy that implements
§ 4303 required Plaintiffs’ continued confinement on death
row until they were resentenced to life imprisonment. In
relevant part, this policy states:
               S. Modification of Sentence


26
   JA at 218.
27
   Id. at 287.
28
   Walker initially filed suit pro se and in forma pauperis.
The district court appointed pro bono counsel to represent
him.
29
   Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *1.
30
   Id. at *4.




                              13
1. In the event that an order is
received modifying the sentence
of a Capital Case inmate to life
imprisonment due to a re-
sentencing proceeding held as the
result of an appeal or Post
Conviction Relief Act, . . . the
facility Records Supervisor must
determine whether the order is
valid and whether the District
Attorney intends to appeal the
order.

2. If the District Attorney intends
to appeal, the inmate shall not be
moved from the Capital Case unit
until the appeal is resolved.
However, the inmate may be
moved from the Capital Case
Unit, if the District Attorney does
not file an appeal within 30 days.

3. If the District Attorney does not
intend to appeal and if the inmate
does not remain subject to an
execution sentence as the result of
a prosecution other than the
sentence modified in the order,




                14
             the inmate may be moved from
             the Capital Case Unit.31

       According to Defendants, this policy only permits
removal from death row (referred to in the policy as the
“Capital Case Unit”) when a death sentence has actually been
modified. They claim that the grants of resentencing here
merely put Plaintiffs’ sentences on hold because re-
imposition of the death penalty was possible. In any event,
Defendants assert they are protected from Plaintiffs’ suits by
qualified immunity.

     III. JURISDICTION AND STANDARD OF REVIEW

       The district courts had jurisdiction under 28 U.S.C. §
1331. We exercise jurisdiction over these consolidated
appeals pursuant to 28 U.S.C. § 1291. Our review of the
courts’ grants of summary judgment is plenary.32 Thus, we
must draw all reasonable inferences in Plaintiffs’ favor.33 If
we find there are no genuine issues of material fact, and
Defendants are entitled to judgment as a matter of law, we
must affirm the courts’ orders of summary judgment.34
                      IV. DISCUSSION


31
   Pennsylvania Department of Corrections Capital Case
Procedures Manual 6.5.8.1.S; JA at 91.
32
   See Blackhawk v. Pennsylvania, 381 F.3d 202, 206 (3d Cir.
2004).
33
   See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218
(3d Cir. 2015).
34
   See id.




                             15
       Plaintiffs maintain that their confinement on death row
without regular placement reviews after they had been
granted new sentencing hearings violated their procedural due
process rights under the Fourteenth Amendment.
Accordingly, we begin with the threshold question of whether
Plaintiffs have asserted a liberty interest sufficient to trigger
due process protections. If we conclude they have a liberty
interest under the Due Process Clause, we then must decide if
that right was clearly established when the alleged due
process violation occurred. If the right was not clearly
established, our inquiry ends and Defendants are entitled to
qualified immunity. If it was, we then need to determine if
there is a genuine issue of material fact regarding the alleged
violation of that right.

A. Qualified Immunity

        Defendants assert that qualified immunity bars
Plaintiffs’ claims for damages and that they are therefore not
liable even if Plaintiffs’ protracted confinement on death row
was unconstitutional.       Under the doctrine of qualified
immunity, “officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights.”35 In assessing qualified immunity
claims, we conduct a two-part inquiry. We first determine
whether a right has been violated. If it has, we then must
decide if the right at issue was clearly established when




35
     Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).




                               16
violated such that it would have been clear to a reasonable
person that her conduct was unlawful.36

       As the Supreme Court made clear in Pearson v.
Callahan, courts are no longer required to tackle these steps
in sequential order.37 The decisions now on appeal represent
both possible approaches. The district court that decided
Williams’s case found that his constitutional rights had not
been violated, albeit not in the context of a qualified
immunity analysis. The district court in Walker’s case
discussed only the second prong, concluding that because the
right Walker alleged was not clearly established, Defendants
were entitled to summary judgment based on qualified
immunity.38

      Despite relaxing the “rigid order of battle”39 that
formerly governed the analysis of qualified immunity, in
Pearson, the Court nonetheless recognized that it is often
appropriate and beneficial to define the scope of a

36
   Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled in
part by Pearson v. Callahan, 555 U.S. 223 (2009).
37
   See Pearson, 55 U.S. at 234-36 (relaxing “the rigid order of
battle”) (overruling Saucier, 533 U.S. 194); see also
Werkheiser v. Pocono Twp., 780 F.3d 172, 176 (3d Cir. 2015)
(“Because we do not believe the right at issue here was
clearly established, we begin with the second step.”).
38
   Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *4
(“Even if we were to somehow conclude that there was such a
right, it certainly was not clearly established during the period
in question.”).
39
   Pearson, 555 U.S. at 234.




                               17
constitutional right. Doing so “promotes the development of
constitutional precedent” and is especially valuable “with
respect to questions that do not frequently arise in cases in
which a qualified immunity defense is unavailable.”40 The
analytical approach is thus left to appellate courts to resolve
in the context of the individual case, and the constitutional
question, before it.41

        “Because we believe this case will clarify and
elaborate upon our prior jurisprudence in important and
necessary ways,” we exercise our discretion under Pearson to
reach the qualified immunity steps in sequence.42
Accordingly, we will first determine whether Plaintiffs’ rights
were violated and then decide if Defendants should have
qualified immunity from suit. We adopt this approach for
several reasons, not the least of which is the salience of the
underlying questions to the ongoing societal debate about
solitary confinement. But at a more basic level, lawsuits by
prisoners, whether about conditions of confinement or other
aspects of incarceration, are frequently—and, we stress, not
inappropriately—met with qualified immunity defenses from
defendants.43    Thus, defining rights when given the

40
   Id. at 236.
41
   See id.
42
   Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169-70 (4th
Cir. 2010).
43
   See, e.g., Gilmore v. Hodges, 738 F.3d 266, 273 (11th Cir.
2013) (“A claim of deliberate indifference to a serious
medical need in violation of the Eighth or Fourteenth
Amendments necessarily arises only where the plaintiff is
incarcerated, and a qualified immunity defense is generally




                              18
opportunity to do so not only inures to the benefit of potential
plaintiffs, it also informs prison personnel and others about
what is appropriate. Those responsible for discharging the
difficult responsibility of administering our nation’s prisons
deserve clear statements about what the law allows.

B. Protected Liberty Interest
1. Sandin, Wilkinson, and Shoats44



available to the public official or officials against whom the
plaintiff brings suit. . . . Thus, we see precious little reason to
delay the resolution of the constitutional question until a later
date, since any later case raising this question will almost
surely be decided in the same context of qualified
immunity.”).
44
   Both Plaintiffs’ and Defendants’ appellate briefs focus on
these and similar cases, and specifically the “atypical and
significant hardship” standard from Sandin and its discussion
of state-created liberty interests. However, our cases hold
that prisoners whose sentences have been vacated, and who
have not yet been resentenced, are treated as pretrial detainees
for purposes of constitutional inquiry, even if their criminal
conviction has not been reversed. See Stevenson v. Carroll,
495 F.3d 62, 67 (3d Cir. 2007). “Unlike sentenced prisoners,
who . . . must look to state law for the protection of their
personal liberties, pre-trial detainees have liberty interests
firmly grounded in federal constitutional law.” Fuentes v.
Wagner, 206 F.3d 335, 341 (3d Cir. 2000) (quoting Cobb v.
Aytch, 643 F.2d 946, 957 (3d Cir. 1981) (en banc)). In
Carroll, as here, the “[institution did] not contest the status of
the appellants as pretrial detainees . . . .” Carroll at 67.




                                19
       A liberty interest may arise from the Constitution or
“from an expectation or interest created by state laws.”45
Here, Plaintiffs contend they had a state-created liberty
interest under the Fourteenth Amendment. To establish such
an interest in the conditions of confinement context, courts
generally require a showing that the alleged liberty interest is
substantial.46 To rise to the level of a liberty interest, the right


       Moreover, we have emphasized that Sandin, which
concerned the due process rights of a sentenced prisoner, does
not apply in the pretrial-detainee context. Fuentes, 206 F.3d
at 342 n.9; see also Dilworth v. Adams, 841 F.3d 246, 252
(4th Cir. 2016) (“Every federal court of appeals to consider
the question has concluded that Sandin’s ‘atypical and
significant hardship’ standard does not govern the procedural
due process claims of pretrial detainees.”); Bistrian v. Levi,
696 F.3d 352, 372-73 (3d Cir. 2012) (discussing the different
due process standards).

       We will nevertheless use the Sandin framework here,
as both parties suggest. The standards applicable to
sentenced inmates provide a floor for treatment of pretrial
detainees, who are generally entitled to greater comparative
freedom from unconstitutional punishments and deprivations
of process. See Bistrian, 696 F.3d at 375. Moreover, since
we find, as explained below, that Plaintiffs prevail in part
even under the more demanding Sandin analysis, we would
reach the same result even under the standard we set forth in
the Fuentes and Stevenson line of cases.
45
   Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
46
   We are not persuaded by Defendants’ attempt to insert a
second criterion, namely, that a “state-created” interest must




                                20
alleged must confer “freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.”47
       The Supreme Court’s decisions in Sandin v. Conner48
and Wilkinson v. Austin49 guide our inquiry into what


be formalized through law or policy. It is clear under Sandin
v. Conner that we must consider the extent of the hardship,
not whether the State has expressly written the right into law
or policy. 515 U.S. 472, 481-82 (1995) (“[E]ncourag[ing]
prisoners to comb regulations in search of mandatory
language . . . creates disincentives for States to codify prison
management procedures . . . [to] avoid creation of ‘liberty’
interests.”); see also Shoats v. Horn, 213 F.3d 140, 143 (3d
Cir. 2000) (“In [Sandin], the Supreme Court announced a new
standard for determining whether prison conditions deprive a
prisoner of a liberty interest that is protected by procedural
due process guarantees.”); Parker v. Cook, 642 F.2d 865, 867
(5th Cir. 1981) (“Since states rarely if ever explicitly label
their creations as ‘liberty interests,’ we must look to the
substance of the state action to determine whether a liberty
interest has been created. And whether this substance is
embodied in a constitution, statute, regulation, rule, or
practice is of no significance.”). Indeed, a contrary result
would allow states to impose any level of extreme
deprivations and escape remediation under the Due Process
Clause by simply not writing the countervailing liberty
interest into law or incorporating it into pronounced policy.
47
   Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)
(emphasis added) (quoting Sandin, 515 U.S. at 484).
48
   515 U.S. 472 (1995).
49
   545 U.S. 209 (2005).




                              21
constitutes an “atypical and significant” hardship. In 1995,
the Court held in Sandin that no liberty interest was
implicated by an inmate’s placement in solitary confinement
for thirty days as discipline for disruptive behavior.50 The
holding was based on the Court’s conclusion that disciplinary
solitary confinement was “within the expected perimeters of
the sentence imposed” and therefore, was not atypical.51 A
decade later, in Wilkinson, the Court held that conditions at a
“Supermax” facility were such a severely constricting
environment that they gave rise to a state-created liberty
interest.52 The Court explained, “Supermax facilities are
maximum-security prisons with highly restrictive conditions,
designed to segregate the most dangerous prisoners from the
general prison population.”53 The Court concluded that long-
term incarceration in the Supermax at issue was “synonymous
with extreme isolation.”54 Consequently, the Court held that
the challenged conditions of confinement were atypical
“under any plausible baseline.”55 The inmates therefore had a

50
   Sandin, 515 U.S. at 486 (“We hold that Conner’s discipline
in segregated confinement did not present the type of
atypical, significant deprivation in which a State might
conceivably create a liberty interest.”).
51
   Id. at 485.
52
   Wilkinson, 545 U.S. at 223-24.
53
   Id. at 213.
54
   Id. at 214.
55
   Id. at 223. In coming to this conclusion, the Wilkinson
Court also considered the fact that placement in this
Supermax facility disqualified an otherwise eligible inmate
for parole consideration. Id. at 224. Contrary to Defendants’
assertions, we need not consider the absence of this factor




                              22
liberty interest under the Fourteenth Amendment’s Due
Process Clause in not being subjected to these conditions
absent procedural protections that ensured the confinement
was appropriate.56

        As Wilkinson recognized, “[i]n Sandin’s wake the
Courts of Appeals have not reached consistent conclusions
for identifying the baseline from which to measure what is
atypical and significant.”57 Given Wilkinson’s guidance, in
Shoats v. Horn we established the following two-factor
inquiry: (1) the duration of the challenged conditions; and (2)
whether the conditions overall imposed a significant hardship
in relation to the ordinary incidents of prison life.58 Applying
that inquiry in Shoats, we concluded that “virtual isolation for
almost eight years” in solitary confinement created a
protected liberty interest.59




here. Parole was not Plaintiffs’ to lose. In any event, this
consideration was not essential to the Court’s finding of a
protected interest in Wilkinson. See Westefer v. Snyder, 422
F.3d 570, 590 (7th Cir. 2005) (“Illinois’ contention that the
liberty interest identified in Wilkinson turned exclusively on
the absence of parole constitutes, [in] our view, far too
crabbed a reading of the decision.”).
56
   Wilkinson, 545 U.S. at 224.
57
   Id. at 223.
58
   213 F.3d 140, 144 (3d Cir. 2000); see also Powell v. Weiss,
757 F.3d 338, 346 (3d Cir. 2014) (noting that Shoats is this
court’s governing standard).
59
   Shoats, 213 F.3d at 144.




                              23
       Shoats involved a suit by an inmate confined in
administrative custody because of his history of violence.60
The inmate was serving a life sentence for murder when he
escaped from custody.61 During the escape, Shoats stabbed
several guards.62    Given his violent behavior and the
perceived threat to others, Shoats was placed in
administrative custody when finally recaptured. Under then
existing prison policy, “there [was] no maximum period of
confinement in administrative custody.”63 Rather, release
back to the general population was dependent on “an
evaluation of many factors.”64 These included behavior while
in administrative custody, “continued risk, safety of others,
and recommendations of prison personnel, including
treatment staff.”65

        In discussing Shoats’ claim that indefinite detention in
administrative custody violated his right to due process, we
described      what     administrative    custody     involved.
Administrative custody meant that inmates were “not allowed
to have radios, televisions, telephone calls (except emergency
or legal), personal property except writing materials, or books
other than legal materials and a personal religious volume.”66
“Non-legal visits [were limited to] one per week . . . under
appropriate security procedures designated by the [prison’s]

60
   Id. at 142-43.
61
   Id. at 141.
62
   Id.
63
   Id. at 142.
64
   Id.
65
   Id.
66
   Id.




                              24
Program Review Committee (PRC).”67 Finally, inmates in
administrative custody were not eligible to participate in any
educational programs “and all meals [had to be] eaten in the
inmates’ cells.”68 We concluded that these deprivations were
such a significant departure from the hardships normally
attendant to incarceration that Shoats had a liberty interest in
not being made to endure them indefinitely.69

2. Plaintiffs’ Atypical Hardship
a. Duration of Segregation
       Plaintiffs have shown atypical hardship. In Sandin, the
Court found that thirty days in solitary confinement did not
give rise to a protected interest.70 In Wilkinson, the Court
found that essentially indefinite confinement with the extreme
deprivations imposed there did give rise to a protected
interest.71 The hardship Plaintiffs experienced here is far
more analogous to the extreme deprivation in Wilkinson than
the much shorter and less severe infringement on liberty that
was present in Sandin. Both Plaintiffs remained in solitary
confinement on death row for years—many multiples of
Sandin’s thirty days—after the initial justification for
subjecting them to such extreme deprivation (their death
sentences) ceased to exist.72 Plaintiffs’ isolation on death row

67
   Id.
68
   Id.
69
   Id. at 144.
70
   Sandin, 515 U.S. at 486-87.
71
   Wilkinson, 545 U.S. at 224.
72
   Defendants’ argument that Plaintiffs are responsible for the
length of these periods of confinement because they initiated
prolonged appeals of their convictions is both meritless and




                              25
lasted six and eight years. We see no meaningful distinction
between those periods of extreme deprivation and the eight
years of solitary confinement that we concluded in Shoats
was “not only atypical, but [] indeed ‘unique.’”73 Although
we do not suggest that it would be considered atypical under
Sandin, we do note that researchers have found that even a
few days in solitary confinement can cause cognitive
disturbances.74

       Here, as in Wilkinson and Shoats, Plaintiffs’
placements on death row were indefinite.75 In Wilkinson,
“placement at [the Supermax] is for an indefinite period of
time, limited only by an inmate’s sentence. For an inmate
serving a life sentence, there is no indication how long he


disappointing. Plaintiffs’ exercise of their rights to appellate
review is simply irrelevant to our assessment of the
constitutionality of their conditions of confinement.
73
   Shoats, 213 F.3d at 144 (noting also that the DOC “would
be concerned about the psychological damage to an inmate
after only 90 days of such confinement and would generally
recommend transfer to the general population after 90 days as
a consequence”) (emphasis in original); see also Wilkerson v.
Goodwin, 774 F.3d 845, 855 (5th Cir. 2014) (“[T]he duration
in segregated confinement that courts have found does not
give rise to a liberty interest ranges up to two and one-half
years.”).
74
   Stuart Grassian, Psychiatric Effects of Solitary
Confinement, 22 Wash. U. J.L. & Pol’y 325, 331 (2006)
[hereinafter Grassian].
75
   See JA at 192 ¶31 (“Walker’s solitary confinement is
indefinite.”) (emphasis added).




                              26
may be incarcerated . . . once assigned there.”76 And in
Shoats, we found the deprivations were indefinite because
there was no maximum period for the inmate’s placement in
solitary confinement.77      Likewise, Plaintiffs’ continued
confinement on death row after their death sentences were
vacated continued for years with no ascertainable date for
their release into the general population. Plaintiffs could not
even hope to be released based on prison PRC review because
these pro forma assessments did not consider the necessity of
their severe conditions of confinement. Obviously, had
Plaintiffs’ respective appellate proceedings stretched far
beyond six and eight years, so would their respective
placements on death row. Indeed, Defendants argue this is
precisely what the DOC policy would have required. In
Defendants’ view, so long as re-imposition of the death
penalty was possible, the automatic deprivations of death row
were mandatory.

       This indefiniteness contrasts sharply with other
common forms of solitary confinement, such as the punitive
segregation that is discussed in Sandin.78 The duration of the
deprivations that follow from that seclusion is often
predetermined and fixed79 unless the inmate’s behavior is
thought to require an additional period of segregation.80

76
   Wilkinson, 545 U.S. at 214-15.
77
   Shoats, 213 F.3d at 142, 144.
78
   Sandin, 515 U.S. at 475-76, 485-86.
79
   See, e.g., id. at 475-76 (noting that prior to the inmate’s
placement in solitary confinement, he was sentenced to a term
of thirty days of administrative segregation).
80
   See JA at 251, 18:5-13.




                              27
Here, Walker and Williams could have been the most
compliant inmates in a given facility, and exhibited no signs
they would endanger themselves or others. They would still
have been relegated to death row indefinitely even though
they had won new sentencing proceedings and were not under
active sentences of death. This would follow even if the
professionals who are part of the prison PRC reviewed their
placements and concluded that that level of confinement was
not otherwise warranted. We therefore have no trouble
holding that the conditions they had to endure while awaiting
resentencing constitute an “atypical . . . hardship on the
inmate in relation to the ordinary incidents of prison life.”81

b. Plaintiffs’ Significant Hardship

        As in Shoats, it is undisputed that the conditions
Plaintiffs experienced on death row “differ significantly from
‘routine’ prison conditions in Pennsylvania state
institutions.”82 Among the range of hardships we have
already noted, Plaintiffs were confined to their respective
cells for twenty-two to twenty-four hours a day and ate all
meals accompanied only by the emptiness within the walls of
their cells. In addition, Williams was placed inside a small
locked cage during much of the limited time he was allowed
to leave his cell and Walker was subjected to invasive strip
searches each time he left his cell for exercise. As discussed
below, a body of research has shown that such conditions can


81
   Griffin, 112 F.3d at 708 (emphasis added) (quoting Sandin,
515 U.S. at 484).
82
   Shoats, 213 F.3d at 144.




                              28
trigger devastating psychological consequences, including a
loss of a sense of self.83

        These are also stark departures from conditions in the
general prison population, and Defendants readily concede as
much:      “Regarding the comparison of conditions of
confinement for capital case inmates with those [in the]
general population, it is admitted that they are more strict than
those for general population.”84 The record establishes that,
unlike those confined on death row, inmates in the general
population have: Access to open air activities without strip
searches; regular access to windows and natural light; daily
access to showers; and the right to more frequent visits where
contact is permitted. General population inmates also have
access to group religious services, while death row inmates
are limited to religious tapes. A variety of jobs and
vocational programs—including clothing factory jobs,
culinary training, and barbershop training—are limited to
inmates in the general population. Likewise, group sport
activities are reserved for the general population. General
population inmates can make phone calls as frequently as
their funds allow. On death row, outside of attorney calls,
only three fifteen minute calls are allowed per week.

       The district court that ruled        on Walker’s claim
recognized these discrepancies. The          court stated in no
uncertain terms that “[t]he conditions      of confinement [on
death row] are much more restrictive        than in the general


83
     See infra notes 144-171.
84
     JA at 63 ¶13; see also JA at 176 ¶9.




                                29
population at Graterford.”85 For instance, “Plaintiff’s contact
with individuals other than prison staff was extremely limited
[on death row]. Plaintiff received each of his three meals per
day in his cell. By contrast, the general population at
Graterford eats in communal dining rooms.”86 Thus, while
general population affords inmates regular human contact,
inmates on death row such as Plaintiffs are deprived of such
interaction. Even the most basic activities of daily living,
such as eating, are done in utter solitude.

        Numerous studies on the impact of solitary
confinement show that these conditions are extremely
hazardous to well-being. Accordingly, it is precisely this type
of isolation that led the courts in Shoats and Wilkinson to
conclude that the deprivations of solitary confinement
implicate a protected liberty interest. In Shoats, we gave
great weight to the fact that the inmate was “confined in his
cell for 23 hours a day, five days a week, and 24 hours a day,
two days a week . . . . [and] eats meals by himself.”87
Similarly, in Wilkinson the Supreme Court grounded a liberty
interest on its finding that “[i]nmates must remain in their
cells, which measure 7 by 14 feet, for 23 hours per day” and
“[a]ll meals are taken alone in the inmate’s cell instead of in a
common eating area.”88 These conditions of extreme social
isolation cannot be meaningfully distinguished from the
deprivations suffered by Plaintiffs here.


85
   Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *1.
86
   Id.
87
   Shoats, 213 F.3d at 144.
88
   Wilkinson, 545 U.S. at 214.




                               30
       In fact, in some respects, Plaintiffs’ conditions were
more severe than those the Supreme Court found atypical and
significant under “any plausible baseline.”89 Walker’s cell
was even smaller than the cells in Wilkinson,90 and the
inmates in Wilkinson were not subject to invasive strip
searches when they left their cells. Accordingly, Plaintiffs
have sufficiently alleged the significant and atypical
conditions of confinement that give rise to a protected liberty
interest.
 3. Defendants’ Alternate Standard
       Defendants assert that the appropriate standard in this
case is not the general prison population as in Wilkinson and
Shoats. Instead, they claim the metric we should use is the
conditions imposed on “inmates serving similar sentences” or
what Plaintiffs’ convictions have “authorized the State to
impose.”91 Defendants thus claim the baseline of comparison
here is death row itself92 because Plaintiffs remain eligible for
the death penalty.93 Therefore, Defendants argue that

89
   Id. at 223 (emphasis added).
90
   The size of Williams’s death row cell is not apparent in the
record.
91
   Defendants Br. at 26.
92
   Defendants also suggest the comparator is conditions in
general (non-death row) solitary confinement. This standard
is untenable. It assumes, with no factual basis, that if
Plaintiffs had been removed from death row earlier, they
would necessarily have been placed in general solitary
confinement as opposed to the general prison population.
93
   Id. (“It is enough to say that, for these prisoners,
confinement on death row is not a ‘departure’ from the
baseline, it is the baseline.”) (emphasis in original). We note




                               31
Plaintiffs’ continued confinement on death row can hardly be
atypical.

       This argument fails for at least two reasons. First, the
standard Defendants propose is inconsistent with Shoats.
There, we did not limit our focus to the conditions of solitary
confinement, even though the DOC might think it appropriate
to subject inmates evidencing violent tendencies such as
Shoats’ to that level of deprivation. Rather, we judged
Shoats’ conditions “in relation to the ordinary incidents of
prison life” or relative to “‘routine’ prison conditions.”94 The
terms “ordinary” and “routine” direct us to use a general
metric (the general population), not one specific to a
particular inmate. Second, though some courts have used the


that in some jurisdictions, though to our knowledge
Pennsylvania is not among them, even inmates with active
death sentences are not always confined on death row—some
are housed in the general population. See Arthur Liman Pub.
Interest Program & Ass’n of St. Corr. Admin., Time-In-Cell:
The ASCA-Liman 2014 National Survey of Administrative
Segregation in Prison (Aug. 2015), 52-53,
https://www.law.yale.edu/system/files/area/center/liman/docu
ment/asca-liman_administrativesegregationreport.pdf
[hereinafter Time-in-Cell]; Mark D. Cunningham & Mark P.
Vigen, Death Row Inmate Characteristics, Adjustment, and
Confinement: A Critical Review of the Literature, 20 Behav.
Sci. & L. 191, 205 (2002); George Lombardi et al.,
Mainstreaming Death-Sentenced Inmates: The Missouri
Experience and its Legal Significance, 61 Fed. Prob. 3, 5
(1997).
94
   Shoats, 213 F.3d at 144 (emphases added).




                              32
metric Defendants propose, it is unworkable in this context.95
We cannot resolve Plaintiffs’ claims by reference to “inmates
serving similar sentences” because, during the period at issue,
Plaintiffs were not serving any sentence whatsoever. Their
sentences had been vacated and resentencing had been
ordered.

       Defendants’ other metric—what the State is authorized
to impose—is based on a similarly mistaken premise. As we
just explained, it is inconsistent with the analysis in both
Wilkinson and Shoats. It also assumes that what the State is
“authorized” to impose is determinative of our constitutional
inquiry. However, whether Defendants were complying with
DOC policy is irrelevant to our liberty interest analysis. As
Plaintiffs point out, in Shoats, the DOC was following its own
policy in providing Shoats with regular reviews and hearings
regarding his placement in solitary confinement, and in
keeping him there.96 But these policies were only relevant to
our finding that Shoats’ due process rights had not been


95
   See, e.g., Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir.
2012) (“[I]t is appropriate to compare the nature of the
challenged conditions to the type of nonpunitive confinement
routinely imposed on inmates serving comparable
sentences.”); Hatch v. District of Columbia, 184 F.3d 846,
847 (D.C. Cir. 1999) (holding that “due process is required
when segregative confinement imposes an ‘atypical and
significant hardship’ on an inmate in relation to the most
restrictive conditions that prison officials . . . routinely
impose on inmates serving similar sentences”).
96
   Shoats, 213 F.3d at 142-43, 144-46.




                              33
violated.97 The DOC’s compliance with its policy did not
stand in the way of us finding that Shoats had a liberty
interest in avoiding solitary confinement. We answered the
liberty interest question based on the conditions themselves,
as we must if the Constitution is to be our guide.98

       Wilkinson likewise instructs that application of the
DOC policy must be circumscribed by Plaintiffs’ liberty
interest. In Wilkinson, the Court explained that “it is clear
that the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions
themselves.”99 Therefore, Defendants’ reliance on their own
policy cannot defeat Plaintiffs’ liberty interest. Rather, our
inquiry must be governed by the conditions on death row.

        Wilkinson also counsels against weighing inmate
dangerousness in determining whether Defendants’ continued
confinement of Plaintiffs on death row without meaningful
review violated their liberty interests. Defendants highlight
the testimony of prison officials to claim that:


97
   Id.
98
   Id. at 144.
99
   Wilkinson, 545 U.S. at 223 (emphasis added); see also
Parker v. Cook, 642 F.2d 865, 867 (5th Cir. 1981) (“[W]e
must look to the substance of the state action to determine
whether a liberty interest has been created. And whether this
substance is embodied in a constitution, statute, regulation,
rule, or practice is of no significance.”).




                               34
              prisoners whose death sentences
              have been vacated, but who are
              still liable to have the death
              penalty re-imposed, present the
              same security and safety issues as
              those who are actually under a
              death sentence . . . . Thus, when a
              sentence of death is vacated on
              appeal or otherwise, the prisoner
              remains in a CCU until he or she
              is no longer exposed to the death
              penalty.100

In Wilkinson, the Court explained: “[H]arsh conditions may
well be necessary and appropriate in light of the danger that
high-risk inmates pose both to prison officials and to other
prisoners. . . . That necessity, however, does not diminish our
conclusion that the conditions give rise to a liberty interest in
their avoidance.”101       Thus, although dangerousness is
certainly relevant to Defendants’ decisions about where to
place inmates, it does not control the outcome of our due
process analysis. It is the conditions themselves that
determine whether a liberty interest is implicated and

100
     Defendants Br. at 6. The district court came to a similar
conclusion in its substantive due process analysis. It found
the policy had a valid purpose because “[t]here is no doubt
that an inmate in such a situation presents a heightened risk
and threat to the safety and security of staff and other inmates
. . . . they have ‘nothing left to lose.’” Wetzel, No. CIV. A.
12-944, 2014 WL 252020, at *8.
101
     Wilkinson, 545 U.S. at 224.




                               35
procedural protections must be in place to determine if the
level of dangerousness justifies the deprivations imposed.

4. The Scientific Consensus

        The robust body of scientific research on the effects of
solitary confinement, combined with the Supreme Court’s
analysis in Wilkinson and ours in Shoats, further informs our
inquiry into Plaintiffs’ claim that they had a liberty interest in
avoiding the extreme conditions of solitary confinement on
death row. This research contextualizes and confirms the
holdings in Wilkinson and Shoats: It is now clear that the
deprivations of protracted solitary confinement so exceed the
typical deprivations of imprisonment as to be the kind of
“atypical, significant deprivation . . . which [can] create a
liberty interest.”102

        A comprehensive meta-analysis of the existing
literature on solitary confinement within and beyond the
criminal justice setting found that “[t]he empirical record
compels an unmistakable conclusion: this experience is
psychologically painful, can be traumatic and harmful, and
puts many of those who have been subjected to it at risk of
long-term . . . damage.”103 Specifically, based on an
examination of a representative sample of sensory deprivation
studies, the researchers found that virtually everyone exposed

102
   Sandin, 515 U.S. at 486.
103
   Craig Haney & Mona Lynch, Regulating Prisons of the
Future: A Psychological Analysis of Supermax and Solitary
Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 500
(1997) [hereinafter Haney].




                               36
to such conditions is affected in some way.104 They further
explained that “[t]here is not a single study of solitary
confinement wherein non-voluntary confinement that lasted
for longer than 10 days failed to result in negative
psychological effects.”105      And as another researcher
elaborated, “all [individuals subjected to solitary
confinement] will . . . experience a degree of stupor,
difficulties with thinking and concentration, obsessional
thinking, agitation, irritability, and difficulty tolerating
external stimuli.”106

       Anxiety and panic are common side effects.107
Depression, post-traumatic stress disorder, psychosis,
hallucinations, paranoia, claustrophobia, and suicidal ideation
are also frequent results.108 Additional studies included in the
aforementioned meta-analysis further “underscored the
importance of social contact for the creation and maintenance
of ‘self.’”109 In other words, in the absence of interaction
with others, an individual’s very identity is at risk of
disintegration.

       In light of the severity of solitary confinement
conditions,    these   troubling   findings  are    hardly
counterintuitive. In one of the most comprehensive surveys
of conditions of solitary confinement to date, researchers

104
    Id. at 500-03.
105
    Id. at 531.
106
    Grassian at 332.
107
    See Haney at 500-01.
108
    See id. at 521, 524, 530-31, 491 n.74.
109
    Id. at 503.




                               37
gathered detailed data from prison directors.110 They found
that solitary confinement cells typically range from 45 to 128
square feet111 or, in Justice Kennedy’s words, “no larger than
a typical parking spot.”112 The researchers also learned that
in many jurisdictions, inmates spend twenty-three hours a day
on weekdays, and forty-eight hours straight on weekends, in
these miniscule spaces.113 Opportunities to stay connected
with family and friends are also limited, with some
jurisdictions only permitting video visits and forbidding visits
by minors.114

        The results of all of these studies are really neither
surprising, nor novel. Over one hundred years ago, well
before the full emergence of the empirical research in this
area, the Supreme Court recognized that solitary confinement
caused “[a] considerable number of the prisoners [to] f[a]ll,
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.”115

      Now, with the abundance of medical and
psychological literature, the “dehumanizing effect”116 of

110
    Time-In-Cell.
111
    Id. at ii.
112
    Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J.,
concurring).
113
    Time-in-Cell at ii.
114
    Id. at 45.
115
    In re Medley, 134 U.S. 160, 168 (1890).
116
    Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J.,
dissenting).




                              38
solitary confinement is firmly established. As Justice Breyer
recognized, “it is well documented that such prolonged
solitary confinement produces numerous deleterious
harms.”117 A clinical review by an expert who has evaluated
the psychiatric effects of solitary confinement in over two
hundred inmates offers a case in point.118 This expert found
that “disturbances were often observed in individuals who
had no prior history of any mental illness.”119 That is to say,
the evidence shows that the psychological trauma associated
with solitary confinement is caused by the confinement itself.
The relationship cannot be dismissed as merely a simple
correlation between pre-existing mental health issues and
placement in solitary confinement.

        This study also determined that even a short time in
solitary confinement is associated with drastic cognitive
changes: “Indeed, even a few days of solitary confinement
will predictably shift the electroencephalogram (EEG) pattern
toward an abnormal pattern characteristic of stupor and
delirium.”120 In the words of the study’s author, solitary
confinement is “strikingly toxic to mental functioning.”121

      As if psychological damage was not enough, the
impact of the deprivation does not always stop there.
Physical harm can also result. Studies have documented high


117
    Id.
118
    Grassian at 333.
119
    Id. at 328-29.
120
    Id. at 331.
121
    Id. at 354.




                              39
rates of suicide122 and self-mutilation123 amongst inmates who
have been subjected to solitary confinement. These behaviors
are believed to be maladaptive mechanisms for dealing with
the psychological suffering that comes from isolation.124 In
addition, the lack of opportunity for free movement is
associated with more general physical deterioration. The
constellations of symptoms include dangerous weight loss,
hypertension, and heart abnormalities, as well as the
aggravation of pre-existing medical problems.125

      Personal accounts of individuals subjected to solitary
confinement are consistent with this body of research and

122
    See, e.g., Thomas B. Benjamin & Kenneth Lux,
Constitutional and Psychological Implications of the Use of
Solitary Confinement: Experience at the Maine State Prison,
9 Clearinghouse Rev. 83, 84 (1975); Lindsay M. Hayes &
Joseph R. Rowan, National Study of Jail Suicides: Seven
Years Later, 32-33 (1988), http://www.ncianet.org/wp-
content/uploads/2015/05/National-Study-of-Jail-Suicides-
Seven-Years-Later-1988.pdf (finding that isolation is one of
the key correlates of jail suicides).
123
    See, e.g., Hans Toch, Mosaic of Despair: Human
Breakdowns in Prison 52-53 (Revised ed., 1992); Stuart
Grassian, Psychopathological Effects of Solitary
Confinement, 140 Am. J. Psychiatry 1450, 1453 (1983).
124
    See Frank J. Porporino, Managing Violent Individuals in
Correctional Settings, 1 J. Interpersonal Violence 213, 219
(1986).
125
    See Haney at 531; Richard Korn, The Effects of
Confinement in the High Security Unit at Lexington, 15 Soc.
Just. 8, 16 (1988).




                             40
describe the devastating effects of extreme isolation and
sensory deprivation. One individual who spent twenty-nine
years in solitary confinement explained, “At times I felt an
anguish that is hard to put into words. To live 24/7 in a box,
year after year, without the possibility of parole, probation or
the suspension of sentence is a terrible thing to endure.”126
The experience drives some individuals to contemplate
suicide.127

        The conclusion of another inmate paints a similar
picture. He described solitary confinement as capable of
“alter[ing] the ontological makeup of a stone.”128 Given the
research that we have discussed, that statement cannot be

126
    Robert King, Experience: I Spent 29 Years in Solitary
Confinement, GUARDIAN (Aug. 27, 2010),
https://www.theguardian.com/lifeandstyle/2010/aug/28/29-
years-solitary-confinement-robert-king; see also Five Omar
Mualimm-ak, Solitary Confinement’s Invisible Scars,
Guardian (Oct. 30, 2013),
https://www.theguardian.com/commentisfree/2013/oct/30/soli
tary-confinement-invisible-scars (“Everyone knows that
prison is supposed to take away your freedom. But solitary
doesn’t just confine your body; it kills your soul . . . . Even
now that I am out of prison, I suffer major psychological
consequences from those years in isolation.”).
127
    Reginald Dwayne Betts, Only Once I Thought About
Suicide, 125 Yale L.J. F. 222, 228 (2016),
http://www.yalelawjournal.org/forum/only-once-i-thought-
about-suicide.
128
    Jack Henry Abbott, In the Belly of the Beast: Letters from
Prison 45 (1981).




                              41
dismissed merely because it is hyperbole. In fact, that inmate
eventually committed suicide in prison.129 And as we have
just shown, his is not the only story of solitary confinement
followed by deterioration and self-harm. These stories
confirm what the scores of studies130 that have examined this
phenomenon tell us: Continued solitary confinement, the
experience Plaintiffs complain of here, poses a grave threat to
well-being.

        This data compels us to recognize the similarities
between the plight of Plaintiffs, and those of Shoats and the
inmates in Wilkinson. All were indefinitely subject to
isolating conditions that researchers agree cause deep and
long-term psychic harm. Such harm is the essence of the
atypical and significant hardship inquiry required under
Sandin and Wilkinson.


129
    Prison Writer Jack H. Abbott Dies, Wash. Post (Feb. 12,
2002),
https://www.washingtonpost.com/archive/local/2002/02/12/pr
ison-writer-jack-h-abbott-dies/b12e2969-a2e7-4530-bc72-
d78af089023f/.
130
    See, e.g., Henrik S. Andersen et al., A Longitudinal Study
of Prisoners on Remand Repeated Measures of
Psychopathology in the Initial Phase of Solitary versus
Nonsolitary Confinement, 26 Int’l J.L. & Psychiatry 165, 173-
75 (2003); Terry A. Kupers, What to Do with the Survivors?
Coping with the Long-Term Effects of Isolated Confinement,
35 Crim. Just. & Behav. 1005, 1010 (2008); David Lovell,
Patterns of Disturbed Behavior in a Supermax Population, 35
Crim. Just. & Behav. 985, 997 (2008).




                              42
5. Purportedly Contrary Precedent Cited by Defendants

       With one exception, which we shall discuss, the cases
Defendants rely upon in arguing against Plaintiffs’ liberty
interest are readily distinguishable. Those cases hold that
inmates confined under a death sentence do not have a liberty
interest that precludes confinement on death row without
regular review.131 However, those inmates were all confined
pursuant to death sentences that had not been vacated.
Accordingly, confinement on death row was not a significant
or atypical hardship for them. Rather, it was expressly within
the “expected perimeters of the sentence imposed.”132 This
logic does not apply here. Plaintiffs were no longer being
confined under a death sentence because their death sentences
had been vacated. Their liberty interests are thus not


131
    Prieto v. Clarke, 780 F.3d 245, 252 (4th Cir. 2015) (“[A]
court cannot conclude that death row inmates have a state-
created interest in consideration for non-solitary confinement
when the State’s established written policy expressly
precludes such consideration.”); Smith v. Coughlin, 748 F.2d
783, 787 (2d Cir. 1984) (“[I]n light of [state law], which
expressly mandated his confinement [on death row], appellant
had no basis to claim to be the beneficiary of any state-
created liberty interest.”); Parker v. Cook, 642 F.2d 865, 874
n.7 (5th Cir. 1981) (“Because death row inmates are never
placed in the general population or given an expectation of
being placed in the general population, it appears that no
liberty interest is affected when they are placed in
administrative segregation.”).
132
    Sandin, 515 U.S. at 485.




                             43
comparable to those of inmates with active death sentences
that arguably require continued placement on death row.

       Defendants and the district court also relied on Clark
v. Beard.133       There, the Commonwealth Court of
Pennsylvania examined the same policy that is at issue here
under circumstances that were similar to those before us.
Clark did involve inmates confined on death row without
active death sentences.134 However, that court’s analysis does
not advance our inquiry. That court merely found the inmates
failed to provide the facts necessary to establish an
appropriate comparator for their conditions of confinement:
“Their complaint describes the conditions in the Capital Case
Unit, but it is devoid of any baseline against which to
measure those conditions and determine whether they pose an
‘atypical and significant hardship.’”135 As a result, the court
concluded it could not determine if the inmates’ conditions
gave rise to a liberty interest under Sandin. Clark’s holding
thus rested on an evidentiary determination, not a
constitutional one rooted in the Due Process Clause. Clark
did not decide if the inmates had a liberty interest in being
housed outside death row.136 Consequently, Clark simply
does not answer the question posed here.

133
    918 A.2d 155 (Pa. Comm. Ct. 2007).
134
    Id. at 159.
135
    Id. at 162-63.
136
    Id. As the district court noted here, “Defendants cited
Clark as a basis for dismissal in their motion to dismiss. We
were not persuaded, however, observing that the
Commonwealth Court’s affirmance in Clark was based on the
plaintiffs’ failure to appropriately plead a cause of action-not




                              44
       For the reasons we have discussed, we now hold that
Plaintiffs had a due process liberty interest in avoiding the
extreme sensory deprivation and isolation endemic in
confinement on death row after their death sentences had
been vacated.137 However, as we explain below, we must
nevertheless affirm the district courts’ grants of summary
judgment in favor of Defendants because we conclude that
they are entitled to qualified immunity.

C. Was the Right Clearly Established?

        Having found a violation of Plaintiffs’ constitutional
rights, we now determine whether the scope of the right was
clearly established for the purposes of Defendants’ defense of
qualified immunity.

       As the district court suggested, a qualified immunity
analysis looks through the rearview mirror, not the



necessarily on the absence of a constitutional right to be
housed in the general population after their death sentences
were vacated.” Walker, No. CIV. A. 07-4977, 2015 WL
390424, at *4.
137
    As noted at the outset, only the district court that heard
Williams’s case reached the due process question. The
district court that decided Walker’s claim ruled on qualified
immunity alone. Nevertheless, our conclusion regarding the
due process right to avoid restrictive conditions of
confinement applies equally to Walker, who was subjected to
the same conditions under the same circumstances.




                              45
windshield.138 The inquiry focuses on the state of the relevant
law when the violation allegedly occurred. For a right to
have been “clearly established,” “existing precedent must
have placed the statutory or constitutional question beyond
debate.” 139 However, the facts of the existing precedent need
not perfectly match the circumstances of the dispute in which
the question arises. “[O]fficials can still be on notice that
their conduct violates established law even in novel factual
circumstances.” 140 Requiring that precedent and subsequent
disputes rest on identical facts would license state actors to
violate constitutional rights with impunity simply by varying
some irrelevant aspect of constitutional violations.

        Here, although the precedent that existed when
Defendants continued Plaintiffs’ confinement on death row
should have suggested caution, it was not sufficient to inform
Defendants that their conduct violated clearly established law.
In arguing to the contrary, Plaintiffs cite Shoats for the
proposition that an inmate’s due process right to avoid
solitary confinement was clearly established.141 We agree
that the interest in avoiding extreme seclusion in Shoats is
analogous to Plaintiffs’ liberty interest even though Shoats
did not involve confinement on death row. As we have
already explained, the conditions of confinement in Shoats—
indefiniteness and extreme seclusion—closely mirror those
Plaintiffs suffered. Thus, Shoats is consistent with, and does
support, Plaintiffs’ claim that they had a protected liberty

138
    See Crawford-El v. Britton, 523 U.S. 574, 590 (1998).
139
    Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
140
    Hope v. Pelzer, 536 U.S. 730, 741 (2002).
141
    Shoats, 213 F.3d 140.




                              46
interest. However, we are not prepared to conclude that
Shoats was sufficient to clearly establish Plaintiffs’ due
process interest in avoiding confinement on death row.

       Shoats was not the only relevant law in existence
during Plaintiffs’ confinement after their sentences had been
vacated. Section 4303142 and its implementing policy143
setting forth the conditions for release from death row also
bear on whether Plaintiffs’ due process rights were clearly
established. Plaintiffs do not contest the legality of the statute
or policy themselves. Rather, Plaintiffs concede that despite
Shoats, the policy gave Defendants reason to believe their
actions were lawful: “Admittedly, whether Appellants’ rights
were ‘clearly established’ at the time of the violation is a
difficult question. Prison officials were following a prison
policy that required that Appellants remain on death row until
they were resentenced.”144

        Defendants read the statute and policy as creating a
rule that requires “prisoners like Williams and Walker, whose
death sentences have been vacated but who are still exposed
to the death penalty, [to] remain [on death row] until re-
sentenced to something other than death.”145           Though
Defendants do not parse the policy, their interpretation is not
without support. The policy’s first criterion for removal from
death row is “that an order is received modifying the sentence

142
    61 Pa. Cons. Stat. § 4303.
143
    Pennsylvania Department of Corrections Capital Case
Procedures Manual 6.5.8.1.S; JA at 91.
144
    Plaintiffs Supp. Br. at 4.
145
    Defendants Br. at 13.




                               47
of a Capital Case inmate to life imprisonment due to a re-
sentencing proceeding held as the result of an appeal or Post
Conviction Relief Act, or as the result of a commutation.”146
At the time in question, Plaintiffs’ sentences had not yet been
modified to life without the possibility of parole. Their
sentences had been vacated. Nor were their death sentences
commuted. Because Plaintiffs do not satisfy the first
condition for release from death row pursuant to the policy,
we need not reach the second two criteria. We merely note
that Defendants’ continued confinement of Plaintiffs on death
row resulted from a reasonable interpretation of the policy.

       In recognizing the validity of Defendants’
interpretation of the policy, we do not suggest that the
profound liberty concerns raised by Plaintiffs’ continued
confinement on death row can be overcome by a carefully
worded prison policy. State policy cannot undermine a
constitutional interest. Rather, Defendants’ policy is only
relevant to our qualified immunity analysis because the case
law in existence during Plaintiffs’ continued confinement on
death row did not adequately inform Defendants that the
policy ran counter to Plaintiffs’ protected liberty interests.
Indeed, the limited precedent that existed on the topic
suggested the contrary.
       Clark, as well as the district court that decided
Williams’s claim, read the policy and underlying statute the
same way Defendants did.147 They concluded that these

146
    Pennsylvania Department of Corrections Capital Case
Procedures Manual 6.5.8.1.S.1 (emphasis added); JA at 91.
147
    Wetzel, No. CIV. A. 12-944, 2014 WL 252020, at *3
(“[P]ursuant to the aforementioned DOC policy, the




                              48
mandates required inmates’ continued confinement on death
row despite the fact that their death sentences had been
vacated. In Clark, the Commonwealth Court of Pennsylvania
described the policy as establishing that “[a]n inmate
successful in having his capital punishment replaced by
another sentence is eligible to be discharged from custody [on
death row].”148 Although, as we have just noted, Shoats
should have raised concerns and counseled caution, Shoats
does not directly dispute Clark or Defendants’ interpretation
of the policy because Shoats was not on death row. Thus, the
DOC death row policy was simply not at issue there. We
therefore cannot say Defendants’ actions here were “plainly
incompetent” or a “knowing[] violat[ion of] the law.”149

       Accordingly, we will affirm the district courts’ grants
of summary judgment based on qualified immunity in favor
of all Defendants and against both Plaintiffs. We realize that
the court that decided Williams’s case incorrectly concluded
that Williams did not have a protected liberty interest and
therefore did not reach the question of qualified immunity.
However, “[w]e may affirm a judgment on any ground
apparent from the record, even if the district court did not



undersigned agrees with Defendants’ position as to why
Plaintiff was confined [on death row] during the disputed
period of time.”); Clark, 918 A.2d at 161 (“The warrant is the
trigger for moving an inmate to [death row], but it is not the
key to his continued stay there.”).
148
    Clark, 918 A.2d at 164 (emphasis added).
149
    Acierno v. Cloutier, 40 F.3d 597, 616 (3d Cir. 1994) (en
banc) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).




                              49
reach it.”150 Our qualified immunity analysis applies equally
to Walker and Williams.151

                     V. CONCLUSION:

A. The Jurisprudential Shift
       Given the scientific consensus, it should come as no
surprise that courts have recently started recognizing inmates’
due process right to avoid solitary confinement as clearly
established. The Court of Appeals for the Fifth Circuit’s
decision in Wilkerson v. Goodwin is illustrative.152 There, the
record showed that the inmate had been confined to his cell
for approximately twenty-three hours a day for nearly forty

150
    Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.
2001).
151
    As stated earlier, Williams sued Defendants in their
individual and official capacities. The district court did not
have to distinguish between the two types of defendants and
claims because it decided that there was no underlying
constitutional violation. Because we affirm on the second
prong of qualified immunity, we do need to reach the
distinction, as official-capacity defendants cannot take
advantage of the qualified immunity defense. See Melo v.
Hafer, 912 F.2d 628, 636 (3d Cir. 1990). Thus, we will
affirm in favor of the official-capacity Defendants on the
alternative but well-worn ground that Williams’s § 1983
claims for money damages against the official-capacity
Defendants were barred by Eleventh Amendment immunity.
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d
Cir. 2010).
152
    774 F.3d 845 (5th Cir. 2014).




                              50
years, and his rights to visitation, personal property, and
exercise had been severely curtailed.153 Recognizing the clear
threat to liberty such conditions pose, the court denied the
prison officials’ assertion of qualified immunity: “Viewed
collectively, there can be no doubt that these conditions are
sufficiently severe to give rise to a liberty interest under
Sandin. This is particularly true in light of the district court’s
finding that [the inmate’s] solitary confinement at Wade is
effectively indefinite.”154

       Speaking in nearly identical terms, the Court of
Appeals for the Second Circuit held that “[w]hatever
confusion Sandin may have left in its wake, defendants do not
argue, nor could a credible argument be made, that it was not
clearly established at the time of the alleged violations that . .
. ten years of solitary confinement[] triggered due process
protection.”155 The Courts of Appeals for the Fourth156 and
Sixth Circuits157 have also recognized the constitutional

153
    Id. at 848-49.
154
    Id. at 856.
155
    Hanrahan v. Doling, 331 F.3d 93, 99 (2d Cir. 2003) (per
curiam).
156
    See Incumaa v. Stirling, 791 F.3d 517, 531 (4th Cir. 2015),
as amended (July 7, 2015) (“Appellant offered evidence
demonstrating that conditions in [solitary confinement] are
significantly worse than in the general population and that the
severity, duration, and indefiniteness of his confinement
implicate the concerns the Supreme Court identified in
Wilkinson.”).
157
    See Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir.
2008) (recognizing that the plaintiff, an inmate subjected to




                               51
implications of solitary confinement. In Incumaa v. Stirling,
the Court of Appeals for the Fourth Circuit found that the
“near-daily cavity and strip searches; the confinement to a
small cell for all sleeping and waking hours, aside from ten
hours of activity outside the cell per month; [and] the inability
to socialize with other inmates” endemic to solitary
confinement were sufficiently severe to establish a protected
liberty interest.158 In Prieto v. Clarke, one member of that
court went even further in a vigorous dissent, critiquing
limitations on the due process rights of all inmates housed in
extreme solitary confinement, even those on death row with
active death sentences.159

       A recent decision by the United States District Court
for the Middle District of Pennsylvania is a prime example of
the judiciary’s increasing recognition of the scientific
evidence of the harms of solitary confinement.160 In Johnson


solitary confinement, “has a point. Even after a proper
conviction and sentence, an inmate still retains a ‘liberty’
interest, guarded by due process, with respect to state-
imposed prison discipline that rises to the level of an ‘atypical
and significant hardship on the inmate’” (quoting Sandin, 515
U.S. at 484)).
158
791 F.3d at 531.
159
    Prieto, 780 F.3d at 255-56 (Wynn, J., dissenting) (“In my
view, the majority opinion reads Wilkinson unnecessarily
narrowly in signing off on Prieto’s automatic, permanent, and
unreviewable placement in the highly restrictive conditions of
Virginia’s death row.”).
160
    We discuss this case merely to highlight its factual
findings and strong reliance on scientific research, both of




                               52
v. Wetzel, the district court held that the damage of indefinite
solitary confinement was so severe, certain, and irreparable
that Johnson—an inmate who had been subjected to solitary
confinement for decades—was entitled to a preliminary
injunction requiring his transfer to the general population.161
The district court ordered this “extraordinary remedy”162
because Johnson, though not on death row, was subjected to
conditions much like those Plaintiffs experienced here.
Johnson’s “entire existence [was] restricted, for at least
twenty-three hours per day, to an area smaller than the
average horse stall.”163 Like Plaintiffs, Johnson was left for
lost in the solitude of his cell walls “ad infinitum.”164
Johnson testified about the extensive harms these conditions
have caused him, including depression, memory loss, and
profound hopelessness.165 A scientific expert who examined
Johnson corroborated his symptoms, concluding that Johnson



which are highly relevant to the issue before us. We, of
course, do not rely on this case as precedent, or take any
position on the merits of the court’s decision.
161
    No. 1:16-CV-863, 2016 WL 5118149, at *12 (M.D. Pa.
Sept. 20, 2016). The district court grounded its preliminary
injunction in the Eighth Amendment’s prohibition against
cruel and unusual punishment. Id. at *6. The district court’s
findings on the harms of solitary confinement are pertinent to
our procedural due process analysis, which must consider the
significance of the conditions of confinement.
162
    Id. at *5.
163
    Id. at *1.
164
    Id. at *11.
165
    Id. at *4.




                              53
has “deteriorated to the point of social death as a direct result
of his continued isolation.”166

       The district court found robust support for Johnson’s
claim in academic literature. It noted that researchers have
observed that “psychological stressors such as isolation can
be as clinically distressing as physical torture.”167 It also
emphasized that it is not the only district court to have
recognized the obviousness of the harms of solitary
confinement.168 As another district court has explained, “that
prolonged isolation from social and environmental
stimulation increases the risk of developing mental illness
does not strike this Court as rocket science.”169

       In our ruling today, we now explicitly add our
jurisprudential voice to this growing chorus. In doing so, we
rely, in part, upon the scientific consensus and the recent
precedent involving non-death row solitary confinement.
Those decisions advance our inquiry into the unique, yet
analogous, scenario presented here.170 Inmates in solitary
confinement on death row without active death sentences face
the perils of extreme isolation and are at risk of erroneous
deprivation of their liberty. Accordingly, they have a clearly
established due process right under the Fourteenth

166
    Id. at *8 (emphasis added).
167
    Id. at *9.
168
    Id.
169
    McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. Apr.
30, 1998).
170
    As previously noted, pursuant to Pennsylvania law death
row is solitary confinement. 61 Pa. Cons. Stat. § 4303.




                               54
Amendment to avoid unnecessary and unexamined solitary
confinement on death row. The State must therefore afford
these inmates procedural protections that ensure that
continuing this level of deprivation is required for penological
purposes, and is not reflexively imposed without
individualized justification.

B. Plaintiffs’ Due Process Right to Avoid
Death Row Solitary Confinement is Now Clearly
Established

       Our holding today that Plaintiffs had a protected
liberty interest provides “fair and clear warning”171 that,
despite our ruling against Plaintiffs, qualified immunity will
not bar such claims in the future. As we have explained,
scientific research and the evolving jurisprudence has made
the harms of solitary confinement clear: Mental well-being
and one’s sense of self are at risk.172 We can think of few
values more worthy of constitutional protection than these
core facets of human dignity. Accordingly, we accept
Plaintiffs’ request that “[t]his Court . . . make clear what
prison officials should have already known: those no longer




171
   United States v. Lanier, 520 U.S. 259, 271 (1997).
172
   See Stuart Grassian & Nancy Friedman, Effects of Sensory
Deprivation in Psychiatric Seclusion and Solitary
Confinement, 8 Int’l J.L. & Psychiatry 49, 53 (1986) (“The
more recent literature on this subject has also nearly
uniformly described or speculated that solitary confinement
has serious psychopathological consequences.”).




                              55
subject to the death penalty . . . have a due process right to be
free from indefinite conditions of solitary confinement.”173

C. The Required Procedural Protections

        It is important to emphasize that this right to
procedural due process protections is neither abstract nor
symbolic, but both meaningful and required. In Shoats, upon
finding a protected liberty interest in avoiding solitary
confinement, we described what we considered to be
adequate procedural protections. There, we granted summary
judgment to the prison official defendants only because the
procedures provided were sufficient to protect Shoats from
being improperly held in solitary confinement.174 We noted
that under the applicable DOC policy, “an inmate must
receive written notice of the reason for his placement in
administrative custody and he is entitled to receive a hearing
before a PRC within six days of the initial transfer to
administrative custody.”175       Most importantly for our
purposes, “[e]very thirty days thereafter, inmates . . . have the
opportunity to be personally interviewed by the PRC, which
then determines whether the inmate should continue to be
maintained in administrative custody.”176 That determination
takes into account “a variety of factors including the safety of
other inmates and staff [and] the continued public or
institutional risk.”177 According to the DOC procedures as set

173
    Plaintiffs Supp. Br. 4.
174
    Shoats, 213 F.3d at 147.
175
    Id. at 142.
176
    Id.
177
    Id.




                               56
forth in the record before us in this case, the PRC’s decision
may be based on evidence such as “counselor’s reports [and]
Psychiatric/Psychological information.”178 For Shoats, we
found that the “record reflect[ed] that the procedures called
for did in fact occur.”179

       We see no justification consistent with these Plaintiffs’
constitutionally protected liberty interests for subjecting them
to the deprivations of being housed on death row after their
death sentences were vacated with any less procedural
protections than we held were adequate in Shoats.180

178
    JA at 116 ¶7.
179
    Shoats, 213 F.3d at 145.
180
    We note, simply to stress the importance of individualized
placement reviews, that comparative studies examining the
incidence of prison violence have found equivalent rates
between death-sentenced and non-death-sentenced inmates.
See, e.g., Mark D. Cunningham & Thomas J. Reidy, Don’t
Confuse Me with the Facts: Common Errors in Violence Risk
Assessment at Capital Sentencing, 26 Crim. Just. & Behav.
20, 23-24, 27 (1999); Jon Sorensen & Robert D. Wrinkle, No
Hope for Parole: Disciplinary Infractions among Death-
Sentenced and Life-Without-Parole Inmates, 23 Crim. Just. &
Behav. 542, 549-50 (1996).

       As one analysis concluded, “An expectation then that
death row inmates will invariably commit assaults in prison
because they have ‘nothing to lose’ appears to be unfounded.”
Mark D. Cunningham & Mark P. Vigen, Death Row Inmate
Characteristics, Adjustment, and Confinement: A Critical
Review of the Literature, 20 Behav. Sci. & L. 191, 203




                              57
       The review that we found adequate in Shoats is not an
inconvenient ritual intended to shelter officials from liability
so that they may mechanically continue an inmate’s
confinement on death row after a sentence of death has been
vacated without fear of sanction. Rather, such inmates have a
right to regular and meaningful review of their continued
placement on death row.181 In conjunction with periodic
review, to ensure the review is meaningful, this process must
include a statement of reasons for the continued placement on
death row.182     Inmates must also have a meaningful
opportunity to respond to the reasons provided.183 These
procedures would be of little value absent the attendant right


(2002). This conclusion may well apply here, where the
vacatur of Plaintiffs’ death sentences made life theirs to lose.
This is precisely why an individualized assessment of the
necessity of continued confinement of inmates like Plaintiffs
on death row by the prison PRC is so necessary.
181
    See Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) (“Of
course, administrative segregation may not be used as a
pretext for indefinite confinement of an inmate. Prison
officials must engage in some sort of periodic review of the
confinement of such inmates.” (emphasis added)), overruled
on other grounds by Sandin, 515 U.S. 472.
182
    See Wilkinson, 545 U.S. at 226 (“If the recommendation is
[solitary] placement, Ohio requires that the decisionmaker
provide a short statement of reasons. This requirement
guards against arbitrary decisionmaking while also providing
the inmate a basis for objection before the next decisionmaker
or in a subsequent classification review.”); see also JA at 97
¶4.
183
    See JA at 99 ¶6.




                              58
of a hearing.184 Without such protections, the Constitution’s
guarantee of due process would be “a tale . . . full of sound
and fury, signifying nothing.”185 As Justice Kennedy has
explained, this would leave individuals vulnerable to
erroneous and unjustifiable infliction of “[y]ears on end of
near-total isolation” at “a terrible price.”186

                             VI.

        For the foregoing reasons, we will affirm the district
courts’ orders granting summary judgment in favor of
Defendants based on qualified immunity. We also hold that it
is now clearly established that inmates on death row whose
death sentences have been vacated have a due process right to
avoid continued placement in solitary confinement on death
row, absent the kind of meaningful protections discussed
herein.




184
    See Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974).
185
    William Shakespeare, Macbeth, act V, sc. V.
186
    Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J.,
concurring).




                             59