Will the Supreme Court Free Albert Woodfox After 43 Years in Solitary?

This story originally appeared on Solitary Watch.

Albert Woodfox, the last remaining incarcerated member of the “Angola 3,” is appealing to the Supreme Court for his release after a tumultuous succession of appeals and overturned decisions.

Sent to Louisiana’s Angola Prison in 1971 for armed robbery, Woodfox was then twice convicted – and twice saw those convictions overturned – of the 1972 murder of an Angola corrections officer.

The convictions were based on highly questionable evidence – including testimony by an alleged eyewitness, now dead, who appears to have been bribed – and Woodfox and his supporters have always contended that he was framed for the murder because of his involvement in the prison’s chapter of the Black Panther Party.

Woodfox’s co-defendant, Herman Wallace, died of cancer in 2013 after 41 years in solitary confinement, while a third member of the Angola 3, Robert King, was freed in 2011 after 29 years in solitary.

Throughout a long series of decisions and appeals, the 68-year-old Woodfox has spent the past more than 43 years in solitary in Louisiana’s prisons. Angola Warden Burl Cain has said that Woodfox cannot be released from isolation because “he is still trying to practice Black Pantherism, and…he would organize the young new inmates,” while Louisiana Attorney General James “Buddy” Caldwell has called Woodfox “the most dangerous person on the planet.”

Most recently, Woodfox’s second conviction was overturned due to racial discrimination in grand jury selection. A federal judge ordered Woodfox’s immediate release in June, and sought to bar a third trial. But Louisiana, under Caldwell’s leadership, appealed, and the judge’s decision was overturned in November by the 5th Circuit Court, the federal court of appeals for Louisiana, Mississippi, and Texas. Woodfox remains imprisoned, and the state will have the opportunity to try him for a third time.

Now, Woodfox’s attorneys have announced plans to appeal to the Supreme Court.

There is no guarantee the case will be heard: Appeals must pass through a pool of clerks and receive votes from four justices before the case is considered, and the Supreme Court hears oral arguments for about 75-80 of the 10,000 petitions it receives each year. But if it is, Woodfox might have at least one sympathizer on the bench. In a congressional hearing last March, Justice Anthony Kennedy stated unequivocally that “solitary confinement literally drives men mad.”

Then in a June concurrence for a case unrelated to solitary, Kennedy decried the “human toll wrought by extended terms of isolation.” He argued that solitary confinement makes sentences harsher than intended, including death sentences, leaving judges no choice but to say to the convicted:

“In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”

Of course, Kennedy does not speak for the entire Court. In the same case, Justice Clarence Thomas retorted with a concurrence of his own:

“I write separately only to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which [California death row prisoner Hector] Ayala is housed are a far sight more spacious than those in which his victims…now rest.”

The 5th Circuit Court’s November decision to overturn Woodfox’s release demonstrates its dramatic departure in policy since the civil rights era, when the court was crucial to the expansion of rights in the South. According to The Nation, in the late 1950s and the 1960s the Supreme Court “issued only a handful of civil rights decisions. Instead, it affirmed major Fifth Circuit opinions about civil rights or let them stand without hearing an appeal, sending clear signals to the courts below.”

A 1964 Time magazine profile of “the trail-blazing intermediate court that handles most of the nation’s civil rights cases” quoted a leading civil rights lawyer: “Without the Fifth Circuit, we would be on the verge of actual warfare in the South.”

During this period, the 5th Circuit Court was responsible for expanding integration, increasing voting rights, tamping down on employment and jury discrimination, and expanding inmate rights. In 1969 it affirmed a ruling ordering a prison to release a man from solitary confinement and lift a ban prohibiting people in prison from giving one another legal advice.

The makeup of the court has changed drastically over the ensuing decades. Ten of its 15 active judges were appointed by Republican presidents (including six by George W Bush), leading to frequent rulings in favor of large corporations and Big Oil. Its 2-1 decision to overturn Woodfox’s release in November fit the court’s current trajectory.

An attorney for Woodfox, George Kendall, said an appeal to the Supreme Court is now necessary because a fair trial would be impossible 43 years after the alleged crime. Fifth Circuit Judge James Dennis, who wanted to uphold Woodfox’s release but was outvoted, appears to agree. As Andrew Cohen at the Brennan Center for Justice points out, Dennis “seemed to be writing directly to Justice Kennedy” in his dissent:

“For the vast majority of his life, Woodfox has spent nearly every waking hour in a cramped cell in crushing solitude without a valid conviction to justify what Justice Kennedy recently described as the ‘terrible price’ paid by those suffering ‘[y]ears on end of near-total isolation.'”

Solitary Watch, edited by James Ridgeway and Jean Casella, aims to serve as the first centralized source of information on solitary confinement – an information clearinghouse,educational resource and online community. In addition to covering events as they are unearthed, it provides a place where prisoners in solitary can publish their stories.