20-year solitary confinement requires meaningful review, holds the Fourth Circuit

Incumaa v. Stirling, No. 14-6411 (4th Cir. July 1, 2015). 

Five Percenters, also known collectively as the Nation of Gods and Earths, have had an outsize influence on hip hop, particularly the Wu-Tang Clan. (Credit: Coup d’Oreille / flickr.)

Five Percenters, also known collectively as the Nation of Gods and Earths, have had an outsize influence on hip hop, particularly the Wu-Tang Clan. (Credit: Coup d’Oreille / flickr.)

The Five Percenters are a splinter group from the Nation of Islam. For the Five Percenters, belief in an incorporeal god—a “mystery god,” as the Five Percenters say, or “Nobodaddy,” as Blake might say—is an oppressive illusion. God is man—or rather, God is equivalent to what the Five Percenters call “the Asiatic Blackman.” (I use the word “man” advisedly; the group doesn’t have much regard for women.) Of these great truths only 5% of the world’s population is aware. Hence the name of the group. 

This case centers on the twenty-year solitary confinement of a Five Percenter, plaintiff Lumumba Incumaa. Since he helped to organize a prison riot in April 1995, Incumaa has been in solitary, permitted to leave his cell for one hour of recreation only ten times per month. This kind of prolonged solitary confinement can have a devastating psychological effect, as a recent concurring opinion by Justice Kennedy has noted

Incumaa challenges his solitary confinement on two grounds. First, he argues, it violates RLUIPA, a federal law that prohibits states from imposing a substantial burden on an inmate’s religious exercise unless that burden furthers compelling ends in the least restrictive way. Second, he contends that his solitary confinement violates his right to due process. 

The Fourth Circuit rejects the RLUIPA claim. Incumaa claims that solitary confinement imposes a substantial burden on his religious exercise because the prison will release him from solitary confinement only if he renounces his beliefs. But the court says that the prison is not requiring Incumaa to renounce his Five Percenter beliefs to secure release from solitary. Many members of the general prison population are Five Percenters. Incumaa is being confined for his role in the April 1995 riot. 

The Fourth Circuit reverses the district court’s dismissal of Incumaa’s due-process claim. Incumaa’s confinement deprives him of a liberty interest because it subjects him to an “atypical and significant hardship” relative to the prison’s general population. And there’s at least a triable question on whether the process the prison has used to deprive Incumaa of his liberty interest meets constitutional standards. The record, the Fourth Circuit holds, is “bereft of any evidence” that Incumaa’s confinement “has ever received meaningful review.” So the due-process claim is remanded for further proceedings.