What Every Harvard Law Student Should Know About Solitary Confinement

On any given day in the United States, supermax prisons and solitary confinement units hold tens of thousands of men, women, and children in conditions of extreme isolation and sensory deprivation, without work, rehabilitative programming, or meaningful human contact of any kind. These people are confined to small, often windowless cells with solid steel doors, where their only interactions with prison staff take place through “feeling slots,” and their only respite may be one hour a day to exercise alone in a walled or fenced “dog runs.” They may remain in solitary for anywhere from weeks to decades. This massive experiment in total human isolation is one of the nation’s most pressing human rights issues.

More than 100,000 Americans are held in solitary confinement.

The most recent government census of state and federal prisoners, conducted in 2005 by the Bureau of Justice Statistics, found 81,622 people held in “restricted housing” (one of many common euphemisms for solitary). A recent report put out by Yale Law School and the Association of State Correctional Administrators estimates the total population in “segregation” in state and federal prisons alone at between 80,000 and 100,000. This does not include local jails, juvenile facilities, or immigration and military detention centers.

Far from a last-resort measure reserved for the “worst of the worst,” as many proponents claim, solitary confinement has become a control strategy of first resort in most prisons and jails. Today, incarcerated people can be placed in complete isolation for months or years not only for violent acts but for possessing contraband—including excess quantities of pencils or postage stamps–testing positive for drug use, using profanity, or having purported “gang” tattoos. The system is arbitrary, largely unmonitored, and ripe for abuse; individuals have been sent to solitary for filing complaints about their treatment or for reporting rape or brutality by guards.

Vulnerable populations such as children in adult prisons, LGBT individuals, and people with mental illness are disproportionately more likely to be held in solitary confinement, as are people of color and Muslims.

Solitary confinement is a sentence within a sentence.

According to the law, deprivation of freedom alone is supposed to be the price society exacts for crimes committed. The additional suffering that happens inside prison—whether it is violence and brutality, rape, or solitary confinement—can therefore be seen as extrajudicial punishments. Solitary, in particular, operates as a “second sentence,” or a “sentence within a sentence,” doled out without benefit of due process.

The tens of thousands of Americans in solitary confinement have been sent there not by judges or juries, who by design have little to say about what happens to people once they pass through the prison gates. Instead, they are condemned to isolation based on a “classification” that is handed down by prison officials. Or they are sent to solitary following charges of misconduct that are levied, adjudicated, and enforced by prison officials.

Many prison systems have a hearing process, but these are seldom more than perfunctory. Prison officials serve as prosecutors, judges, and juries, and the incarcerated are rarely permitted representation by defense attorneys. Unsurprisingly, they are nearly always found guilty. The United States has virtually none of the checks and balances found in most European societies—no prison ombudsperson, no inspector of the prisons, no independent monitoring bodies—and incarcerated people themselves have been disempowered by the Prison Litigation Reform Act, a 1996 law limiting their ability to sue in federal courts.

Solitary confinement causes serious and permanent psychological damage.

The complete isolation and sensory deprivation of solitary confinement has been shown to cause a panoply of psychiatric symptoms, detailed in a briefing paper from the American Civil Liberties Union’s National Prison Project:

Research shows that some of the clinical impacts of isolation can be similar to those of physical torture. People subjected to solitary confinement exhibit a variety of negative physiological and psychological reactions, including hypersensitivity to stimuli; perceptual distortions and hallucinations; increased anxiety and nervousness; revenge fantasies, rage, and irrational anger; fears of persecution; lack of impulse control; severe and chronic depression; appetite loss and weight loss; heart palpitations; withdrawal; blunting of affect and apathy; talking to oneself; headaches; problems sleeping; confusing thought processes; nightmares; dizziness; self-mutilation; and lower levels of brain function, including a decline in EEG activity after only seven days in solitary confinement.

In dire cases, solitary confinement leads to extremes of self-mutilation, and the rates of suicide in solitary far exceed anything found in general prison populations. One study of the New York City jail population found incidences of self-harm were seven times higher among individuals held in solitary confinement. Some prisoners held in solitary have gone as far as self-amputations of fingers and testicles, as well as self-blinding. Likewise, about 50 percent of incarcerated people who take their own lives do so while in isolation. The challenges of suicide in a bare cell have driven some to such acts as jumping headfirst off their bunks and biting through the veins in their wrists.

Solitary confinement does not reduce prison violence, but it increases recidivism and prisons costs.

Controlling prison violence is the most common justification for the use of solitary confinement. Yet a recent Texas study found no relationship between the use of solitary and the incidence of prisoner-on-prisoner or prisoner-on-staff violence. Several states, including Mississippi and Colorado, actually saw significant drops in prison violence after reducing their use of solitary confinement by up to 85 percent.

A 2011 report from the California Department of Corrections and Rehabilitation found that the one-year recidivism rate for those who had served time in solitary was 52.2 percent, while those not assigned to the solitary had a one year recidivism rate of 47.6 percent. At two years, 64.9 percent vs. 60.2 percent were the figures, and by three years they were 69.8 percent vs. 64.8 percent. Data from other states shows similar disparities, especially when individuals are released directly from solitary to the streets.

Solitary confinement units cost more to build than the average prison, and it also costs significantly more to house someone in isolation than it does to hold someone in the general population. Nationally, it has been estimated that a year in solitary costs taxpayers on average $75,000—two to three times more than housing someone in general population.

The movement against solitary confinement is growing rapidly.

Until quite recently, the widespread use of solitary confinement was all but invisible. In the past five years, the issue has been taken up not only by Solitary Watch, but by groups including the ACLU, Human Rights Watch, Amnesty International, Center for Constitutional Rights, and the National Religious Campaign Against Torture, as well as by the UN’s Special Rapporteur on Torture. Resistance to solitary has sprung up behind bars as well, with three highly publicized hunger strikes in California, and scattered strikes in other states. Some Harvard students have protested solitary through activism with the Student Alliance for Prison Reform (www.studentprisonalliance.com).

As the issue of solitary confinement begins to penetrate the mainstream media and public consciousness, there has been a growth in grassroots activism. Legislation to study, limit, or all but abolish solitary has been introduced in more than a dozen states, and litigation has challenged solitary on Constitutional grounds—most recently in California, where a settlement will lead to the removal of hundreds of individuals held in solitary for ten years or more.

Solitary Confinement is ripe for challenge in federal court.

With a few exceptions (see, for example, In re Medley [1890] and Madrid v. Gomez [1995]), the courts have been reluctant to place significant limits on the use of solitary confinement on Eighth Amendment grounds. But that may be changing, along with “evolving standards of decency” around the issue of solitary confinement.

In June 2015, in a separate concurrence to the Supreme Court’s decision in Davis v. Ayala, Justice Anthony Kennedy addressed the practice of solitary, after opening with a history of the use of solitary confinement and the damage it wrought. While this long-standing knowledge of the effect of solitary confinement was “[t]oo often” and “[t]oo easily ignored,” Kennedy wrote, a “new and growing awareness” on solitary confinement was emerging. In closing, Kennedy appeared to invite a case that would address these concerns directly: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”

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James Ridgeway is founder and co-director of Solitary Watch (www.solitarywatch.com), a web-based watchdog project dedicated to exposing the widespread use of solitary confinement in U.S. prisons and jails. Additional research for this article was provided by Jean Casella and Sal Rodriguez.

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