VOLUME XXVI No 1


 
In This Issue:
Long-Term Penal Isolation: A Problem Solving Symposium
Fred Cohen

The Use of Long-Term Isolation: A Policy of Despair
Andrew Coyle

Isolation Vignettes: Practical Applications of Strict Scrutiny
David Lovell, Ph.D.

Separation
Not
Isolation
David C. Fathi

Safety, Yes; Near Total Isolation and
Idleness, No
Terry Kupers, M.D., M.S.P.


A Former Prison Administrator
Reacts
Martin F. Horn

A Close Look
at the
Options
James Austin, Ph.D.

Testing the Rationales for Long-Term Isolation: Three Scenarios
Laura L. Rovner

 
 

A Former Prison Administrator Reacts

by Martin F. Horn

The foremost obligation of a prison and jail administrator is to keep the persons in their custody, the staff, and the public safe. Other responsibilities attach to the corrections administrator’s role as well, but none are as important. Indeed, I would argue that absent safety all other activities within a corrections setting are undermined and the likelihood of a successful return to the community by the prisoner is diminished, the ability of staff to perform their duties effectively is undermined, and public confidence in the integrity of the corrections enterprise is damaged. Safety within a prison or jail operates on several levels. Not only does it mean keeping prisoners and staff safe from assault and the prisoners from escaping, but it also means keeping them safe from fire, disease, and from mental deterioration.

Best practice in corrections today calls for the thoughtful, objective classification of prisoners. One purpose of classification is to identify the prisoner who is predatory and to keep that person away from the prisoner who is weak or vulnerable. Over the last 40 years, as prison and jail populations grew exponentially, reliance on open dormitories and multiple occupancy cells, rather than the traditional single cell grew apace. The open dorm and multi-occupancy cell or room present difficult safety challenges that make the proper security classification of prisoners critical and make the separation of prisoners who prey on each other harder.

At the same time, the number of persons with mental illness in prison and jail populations has grown as well. As Bernard Harcourt observed in The New York Times, “Over the past 40 years, the United States dismantled a colossal mental health complex and rebuilt—bed by bed—an enormous prison...”1 By contrast, prisoners cannot be so easily released to the community without setting off the “public safety alarm.” Keeping prisoners safe, keeping the mentally ill safe and healthy, and keeping prisoners from harming each other and staff and doing all this with limited resources, in physical plants that are inadequate to the task has gotten immeasurably harder.

Moreover, during the last 20 years the cost of operating prisons and jails has ballooned and state and local jurisdictions throughout the country have elected to cut funding, leaving prisons and jails to operate with insufficient numbers of personnel, inadequate programs, and nonexistent or limited services to provide treatment of the mentally ill and programming for prisoners. As a consequence prisons—and especially jails—are today marked most significantly by boredom and ennui.

The three vignettes offered for comment must be read in light of these realities. The use of social isolation is of concern and very complicated; it is difficult to address all the issues implicated in the format allowed here.

As I read each of these case studies I asked myself, as a prison administrator how do I keep people safe and how do I mitigate the harm inherent in imprisonment?

Vignette I: Tom Silver

Reading the case of Tom Silver, the three time killer (one victim an officer) reminded me of a situation I encountered when I served as Secretary of Corrections in Pennsylvania. A 25-year-old prisoner serving five to ten years for a first degree robbery was brutally raped by another prisoner on a maximum security cell block during the time prisoners were allowed out of their cells for indoor recreation on the block. As if that were not horrific enough, I came to find out the perpetrator, who was himself serving a life term, had perpetrated a similar rape 15 years earlier. At the time, the local prosecutor declined to take the case to trial citing limited resources and on the grounds the perpetrator was already serving life, and so what more could be done to him? After serving some substantial time in punitive segregation the perpetrator was returned to general population where, some years later, he perpetrated the second rape (that we know of). All I could think to myself at the time was, “what will I say to the mother of the third fellow he rapes?” What was my duty of care to the other inmates who were his future potential victims?

Tom Silver presents the same conundrum. The fact that he is 68 does not impress me. I am 66 and quite vital, and I believe that if I had to I am capable of slipping a “shiv” between the ribs of another man; without knowing more about the deterioration in his physical and mental health, I don’t doubt Tom could too. How much risk with the lives and well-being of the other prisoners do we want the Warden of Tom’s prison to take? I come down on the side of the other prisoners and have little reluctance to keep Tom locked up, based on what I know now. Moreover, behavior has consequences, in prison as well as in society at large. Tom’s three murders cannot go unpunished.

I understand that, having said that confining Tom so that he can do no harm to other prisoners obliges me to take greater responsibility for Tom’s well-being. Keeping him physically separated from other prisoners need not, and should not, mean depriving him of social contact, and it should not require compromising his physical and mental health. (Indeed, the jury is still out on whether isolation causes mental deterioration in all cases. Most studies that contend that it does look at a prisoner at a point in time and attribute any pathology to the segregation and fail to account for the possibility it may have been a preexisting condition.) The prison needs to find alternative means to keep Tom engaged, be it through increased staff or family contact or through other means of social stimulation. Perhaps ways could be devised for him to interact with other prisoners safely and with no opportunity to harm them himself. His long-term separation from other prisoners should not be imposed as punishment and there is no reason to deprive him of outside contact through phone calls, supervised or non-contact visits, access to television and radio, books and newspapers.

But, to do this right requires resources. And this is the challenge prison and jail administrators face. They are asked to do the impossible with little resources. If we as citizens wish our prisons and jails to be places where the prisoners and staff are kept safe, and where those who can do harm are prevented from doing so without being further harmed themselves, the corrections facility must be properly staffed-not only with correction officers but with mental health staff, recreation staff and medical staff as well. The physical plant must support the operation and not work against it as so many early generation prisons and jails do. This takes money; to manage prisons and jails right, the public and elected officials have to be willing to pay the price.

Vignette II: Tony Menace

Tony Menace is not very different in terms of the challenge he poses. Let’s be clear, while in prison he is engaging in conspiracy to murder and deal drugs. These are serious crimes and they cannot go unremarked. My first response is to insist the local prosecutor charge him based on the evidence mentioned in the vignette. His prison term of 20 years can be extended. There must be consequences for bad behaviors, including in prison.

However, Tony Menace begs what for me is the biggest question facing American corrections today. If he is significantly mentally ill, why is he in prison? The Bureau of Justice Statistics reported, “At midyear 2005 more than half of all prison and jail inmates had a mental health problem, including 705,600 inmates in State prisons, 78,800 in Federal prisons, and 479,900 in local jails. These estimates represented 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates.”2 In 2014 we must be challenging that reality. The problem has only gotten worse and a predatory mentally ill person like Tony Menace poses real danger to other prisoners. We have a duty to them to protect them from him, and a duty to him to treat his mental illness. Perhaps a well-run secure psychiatric hospital is a better place for Tony and for the prisoners he threatens.

Long-term social isolation of Tony is complicated by the fact of his mental illness; it can’t be ignored. But prisons and jails today—jails especially—are ill-equipped to cope with the level of challenge a person like Tony can present. The problem does not belong to the prison or jail. It belongs to the community that bears the obligation to ensure Tony receives the proper level of treatment and the care appropriate to his condition, and that can’t be done in a prison. Prisons were designed specifically with the idea that the mentally ill would be housed elsewhere. Again, it’s a social and political question of will, and money.

Vignette III: Sunny Bayou

Sunny Bayou presents a very different challenge. Young persons have even greater needs for social contact than adults. The potentially debilitating effects of isolation affect the adolescent even more severely. Wherever possible the isolation of adolescent prisoners should be avoided. The number of adolescents in custody is too high as it is and can be reduced, as we showed in New York.3 Confinement should be reserved for the irreducible minimum number so damaged that they are truly dangerous. That is a far smaller number than we confine today. Among that group the number requiring isolation is smaller still. When an adolescent is confined, the state’s obligations to his or her education (including special education) travel with him or her and must be fulfilled. I agree with Sunny’s lawyer that isolation can be particularly harmful to a 15 year old and, further, that his legally required educational needs and rights don’t end at the training school door. If he is so dangerous that his behaviors can’t be corrected through therapeutic interventions, then we have to bring the teachers, the resources, the physical exercise, the art and the music that he would experience in school to him.

It has been my sad experience that the young people we see in jails and prisons are very often learning disabled. Where evaluations have been done, and Individual Education Plans (IEPs) created, they don’t follow the youngster into the jail, prison or youth facility. Often the fragmentation of our educational system, with local districts seeking to avoid the cost and responsibility for youngsters taken out of their jurisdictions, works to prevent the proper and appropriate response to the needs of these children. Perhaps if his educational and developmental needs were better attended to, the rage that causes him to get into fights would abate.

General Considerations

Reading and responding to these three vignettes brings several general considerations to mind:

First, prisons and jails are not designed or equipped to cope with the mentally ill. As a society we need to rethink our approach to dealing with the mentally ill, we must ask why they are in jail and how we can better respond to the challenges they present. When I ran the jails in New York City I was served by Bellevue Hospital and had call upon the finest acute mental health care in the country. Many jails, especially in rural areas, don’t have that resource and are left dangerously to their own devices when a mentally ill person is committed to their custody. This must change.

Second, juveniles and adolescents don’t belong in jails and prisons and their social isolation should be avoided to the extent possible. If we were more thoughtful about juvenile detention and incarceration the problem would not loom as large. Much of the problem arises when jurisdictions that don’t have appropriate places to detain youngsters who are criminally involved are, of necessity, required to house them in adult facilities. Then, concern for their safety and federal separation requirements often leave the adult jail with no recourse but to isolate them. This often leads to mental deterioration and sadly, sometimes, suicide.

Third, prisoners with time on their hands will get into trouble. The cuts to prison programming, education, and other “rehabilitative” programs during the last 20 years have had consequences. Idleness, boredom, and angry young men make for a dangerous mixture and lead to behaviors that sometimes cannot be responded to except by separation. If the level of activity inside our prisons were greater, if prisoners believed there was some opportunity for self-improvement and that society felt invested in their welfare and success, the fights and gang behaviors that lead to the use of physical segregation would be diminished.

Fourth, prisons must be places where dangerous contraband, drugs, weapons, and yes, cellphones are not allowed to enter. The artificial scarcity that marks prison life creates a black market and where there is such a market, fights for control become dangerous, feed the power of gangs, and necessitate measures such as isolation to control them. This
requires a culture of integrity, sufficient training, appropriate supervision, and the will to control the introduction of contraband.

Finally, prisons and jails must be appropriately staffed, equipped, and designed to perform the tasks we are asking of them in the 21st century. We can no longer pretend that prisoners can be confined in open dormitories and double celled without proper staffing, that the presence of the mentally ill in prison
and jail is not destabilizing, and that
false economies don’t have dire consequences.

The cost of incarceration is high; the best solution is that there be less of it. n

End Notes

1. Bernard Harcourt, “The Mentally Ill Behind Bars,” The New York Times, January 15, 2007. Available at http://www.nytimes.com/2007/01/15/opinion/15 harcourt/html

2. Doris James & Lauren Glaze (Sept. 2006). Mental Health Problems of Prison and Jail Inmates, Washington, D.C.: Bureau of Justice Statistics, U.S. Department of Justice.

3. “Alternative to Jail Programs for Juveniles Reduce City Costs,” New York: New York City Independent Budget Office, July 11, 2006.

Correctional Law Reporter
Founded 1987 

Fred Cohen, LL.B., LL.M.
Executive Editor

William C. Collins, Esq.
Editor Emeritus 

Editorial Board 

Michelle Deitch
Senior Lecturer, LBJ School of Law,
University of Texas

Jamie Fellner
Human Rights Watch

Craig Haney
Department of Psychology,
UC Santa Cruz 

Martin F. Horn
Distinguished Lecturer,
John Jay College of Criminal
Justice, CUNY 

Steven Martin
Attorney at Law,
Austin, Texas

Michael B. Mushlin
Professor of Law,
Pace University 

James E. Robertson
Professor, Department of
Sociology and Corrections,
Minnesota State University

Donald Specter
Executive Director,
Prison Law Office

 


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