Setting the Stage

I do not believe long-term penal isolation is a good idea. It does not accomplish any good “penological objective,” it causes immeasurable harm to the significant proportion of the prison population who are prone to mental illness as well as to the rest, and it constitutes a human rights abuse tantamount to torture. I have published extensively on this topic, so I will not provide here another summary of the known damage.1 The shift in the United States in the 1980s toward increasing isolative confinement, especially in supermax prisons, constitutes a historic wrong turn in penology. It was a response to the unprecedented violence and mental breakdowns occurring in corrections in the 1980s, but that violence and madness were clearly the result of the wholesale consignment of people with serious mental illness into correctional settings as well as massive crowding of the prisons. A more effective and humane response would have been to alleviate the crowding with more rational sentencing guidelines, to divert individuals with mental illness into treatment settings and bring correctional mental health care up to the standard in the community, and to reinstate the rehabilitation programs that were being dismantled at the time because of accusations that rehabilitation constitutes “coddling criminals.”

The first thing to note about the three cases Professor Cohen has selected is their extremity. All three individuals are known to have wreaked violence and pose a legitimate threat to the safety and smooth operation of the facilities where they are confined. So these are “poster boys” for solitary. But this is not the case with all, or even a majority of denizens of solitary confinement units in our prisons. There are a very large number of individuals confined in solitary circumstances or segregation for very long periods who do not actually pose much of a threat to the security of the institutions. They are being retained in segregation because of outdated and foolhardy policies, because many departments of correction are incapable of correcting a wrong decision to place one or another prisoner in solitary, because mental health services are inadequate and prisoners with mental illness are being punished with segregation for inappropriate behaviors that flow from their psychiatric disability, because a self-fulfilling prophecy is set in motion whereby an individual placed in segregation is led by the harsh conditions to act out in unacceptable ways and thereby to draw ever longer sentences to segregation, and because a culture of punishment in the prisons is played out by designating certain prisoners “the worst of the worst” and then visiting increasingly abusive punishments upon them.

In tours of supermax units in multiple states, I find that many prisoners consigned to segregation are not very dangerous at all. In the Mississippi DOC, when, because of the ongoing Presley v. Epps litigation, proper classification procedures were finally enacted, the majority of prisoners serving long sentences in the supermax Unit 32 at Mississippi State Penitentiary were returned to general population. Contrary to the logic that informs the rush to build supermaxes—i.e., they are needed to control wanton violence—the violence rate in the entire DOC diminished, and the rate of disciplinary infractions on the part of prisoners released from Unit 32 also declined precipitously.2

The Vignettes

But let’s begin with Professor Cohen’s three vignettes. I would welcome an explanation how depriving an individual with a violent record of any view of the outside world and any contact with nature (i.e., there are no windows in the cell and the individual never gets to an outdoor recreation area), making him sleep on an uncomfortable concrete slab, and constructing the cell so it is “airless” improves the security of the institution. There is no rational reason to make the prisoner miserable in these and many other ways, yet these harsh conditions are fairly typical in today’s prison isolation units. The absence of logic here is a big part of the reason I have concluded that the main thing to notice is an irrational culture of punishment. These are presumed to be “bad actors,” and consequently the staff feels they need to punish them harshly. In fact, in Vignettes I and II, there seems to be evidence of harsh isolative conditions causing psychiatric breakdown in previously mentally stable individuals. This is a little-recognized negative ramification of placing truly dangerous individuals in solitary confinement.

There is too little attention to the long-term effects of solitary confinement. So the bad acting prisoner has a 20 year prison sentence, beginning when he is around 20 years of age. He is released at 40, having spent the entire 20 years idle and in isolation. Do we seriously expect him to be capable of conforming his behavior to the acceptable norms in the community after he is released? Why not provide him with pro-social and productive activities during his prison term, albeit in a safe setting, so there is more likelihood he will be able to succeed at going straight when he is released? Of course there are a small proportion of prisoners who will merely take advantage of the freedoms of general population to victimize other prisoners and continue criminal pursuits. There is no credible evidence that long-term solitary confinement prevents this relatively small group from pursuing their criminal objectives. Meanwhile, the vast majority of prisoners spending inordinate time in solitary confinement today would be much better prepared for a productive life after release were they provided with congregate rehabilitative programs during their time behind bars.

Protocols on torture and prohibitions against cruel and unusual punishment are written precisely to protect human beings who the authorities believe are bad enough actors to seemingly deserve very harsh treatment. But no matter how bad the actor, Eighth Amendment violations and torture are not permissible. There is no question that the three individuals Professor Cohen describes in the vignettes require some kind of enhanced security precautions, but I do not believe that extreme isolation and idleness need to be central to those precautions.

In order to explain this point, let us skip to prisoners who are consigned to protection and placed in solitary confinement units. This is not an acceptable correctional practice, but it occurs in all too many prisons. (The Prison Rape Elimination Commission took the precaution of forbidding this kind of protective isolation in the case of women prisoners who allege sexual assault by staff.) According to standards and a reigning consensus on acceptable practices in the field of corrections, individuals who require protection must be housed in units that are separated from their potential enemies, but those protection units must contain all the programs and amenities the protected prisoners are entitled to, consistent with their security level. Likewise, I believe that to the extent possible, while maintaining safety in the facilities, individual prisoners deemed especially dangerous should be separated from the places and prisoners where they pose a grave danger, but should be provided the programs and amenities that they are entitled to as human beings, i.e., a certain amount of meaningful social interaction and productive activities.

I will not enter a discussion of the proper measures to control violence and criminal activity in the relatively small subpopulation of prisoners who are not amenable to rehabilitation, except to say that there are such measures and they need to be carefully planned and enacted. Toch and Adams wisely counsel that the more difficult it is to manage a particular prisoner’s unacceptable behaviors, the more time is required for meetings and interventions on the part of custody and mental health staff.3 Too often, instead of committing that kind of concentrated staff energy, the troublesome prisoner is merely warehoused in an isolation cell, where, like in Vignette I and Mr. Tommy S, the previously stable prisoner is driven by the conditions to become stark raving mad. Since this is the expectable outcome of extreme isolative measures, the practice would seem to be prohibited by the U.S. Constitution and international agreements prohibiting torture.

There is actually no credible evidence that isolation increases safety in the prisons. Rather, it gives the culture of punishment a raison d’etre. It has long been a basic tenet of psychology that positive rewards are much more effective in attaining desired behavior change than are harsh punishments. That lesson from psychology could inform a very successful effort at rehabilitation in corrections. Incremental rewards could be designed to help previously law-breaking and rule-violating prisoners become peaceful, productive citizens. For a very small fraction of the cost of supermaximum security units, intensive substance abuse programs could be installed in the prisons (in recent decades, the proportion of prisoners benefitting from substance abuse treatment has declined) that make it possible for a significant number of prisoners to stay “clean and sober” and succeed at “going straight” after they are released from prison.

Likewise, if this society is intent on locking up the population suffering from serious mental illness instead of providing an adequate public mental health system and affordable housing, an adequate correctional mental health program would have much more beneficial outcomes than long-term solitary confinement. Instead, a very large number of prisoners who are not especially dangerous are warehoused in isolation for much of their prison tenure; they are severely damaged by the forced isolation and idleness; and, predictably, the parole revocation and recidivism rates have been rising precipitously during the same two or three recent decades that have witnessed the widespread use of solitary confinement in our prisons.

End notes

1. Terry Kupers, Isolated confinement: Effective method for behavior change or punishment for punishment’s sake?” In Bruce Arrigo & Heather Bersot (Eds.), The Routledge Handbook of International Crime and Justice Studies, pp.213-232, Oxford: Routledge, 2013; Terry Kupers (August 2008). What to do with the survivors? Coping with the long-term effects of isolated confinement. Criminal Justice and Behavior, 35(8), 1005-1016.

2. T.A. Kupers, T. Dronet, M. Winter, et al. (October 2009). Beyond supermax administrative segregation: Mississippi’s experience rethinking prison classification and creating alternative mental health programs, Criminal Justice and Behavior

3. H. Toch & K. Adams (2002). Acting out: Maladaptive behavior in confinement. Washington, D.C.: American Psychological Association.