In its use of isolated confinement, as in so many other aspects of criminal justice, the United States is an extreme global outlier. The best estimate is that on any given day, approximately 80,000 U.S. prisoners are held in solitary or some other form of highly restricted confinement.1 Isolated confinement in the United States is often measured not in days or weeks, but in years or even decades. In a single prison—Tamms Correctional Center in Illinois—a 2009 investigation found more than 50 prisoners who had been in continuous solitary confinement for more than 10 years.2 In no other democratic state—and quite possibly in no other state of any kind—is isolated confinement such a routine and normalized aspect of the criminal justice system.3

What accounts for this dubious distinction? It could be that U.S. prisoners are significantly more violent, incorrigible, and difficult to manage than their counterparts in Canada, the United Kingdom, and other Western democracies, but that seems highly unlikely. Absent such qualitative differences between prison populations, it follows that the United States’s heavy reliance on isolated confinement is not an unavoidable aspect of running a prison system, but instead represents one policy choice among a number of possible alternatives.

What might these alternatives look like? Professor Cohen has given us three difficult cases to consider. At the outset it is important to recognize that these cases—particularly the first two—are highly atypical of the tens of thousands of prisoners in isolated confinement. In most states one could count on the fingers of one hand the prisoners who are in isolation because they have killed another prisoner or a corrections officer, or because they have ordered killings from behind bars. Far more common are the mentally ill;4 those who have violated one or more of the many picayune rules prisoners must obey;5 those who are isolated ostensibly for their own protection;6 and those who are automatically placed in isolation as a result of a sentence of death or life imprisonment.7 Nevertheless, prisoners like those described in these three vignettes unquestionably exist, albeit in small numbers, and it’s a fair question how they can be safely managed.

An important part of the answer lies in the distinction between physical separation, which is sometimes necessary for prison safety and security, and social isolation and environmental deprivation, which are not. I have often been struck by the gratuitous nature of many of the deprivations inflicted on prisoners in “supermax” prisons and other places of isolated confinement. For example, cells in these facilities are sometimes built with no window to the outside—just solid, unbroken walls. The exercise enclosure—a slightly larger cell, partially open to the sky—also may have no window, with the result that a prisoner can go years without ever seeing the horizon or a blade of grass. I have queried a number of corrections professionals about this practice, and have yet to find one who believes that a small window made of unbreakable material would pose any kind of security threat.

Draconian restrictions on personal property and contact with the outside world are also common in places of isolated confinement, and often appear to serve little or no valid security purpose. When Wisconsin’s Supermax Correctional Institution was sued in 2001, prisoners in its most restrictive unit were permitted one religious text, one box of legal materials, and 25 personal letters; they were allowed no clocks, watches, or radios, cassette players or televisions, and “visiting” was permitted only via video.8 Similarly, prisoners in Pennsylvania’s Long-Term Segregation Unit were allowed only one visitor per month (an immediate family member); they were allowed no phone calls except in emergencies; and they were denied all access to newspapers, magazines, and personal photographs.9

How exactly does denying a prisoner a photograph of his mother advance prison security? These and similar restrictions are difficult to explain except as reflecting a desire to punish—even in units where isolation is ostensibly administrative, protective, or otherwise non-punitive in nature.

Turning to the cases before us, there appears to be no security justification for the “extremely limited telephone use and visits” imposed on Tom Silver. Even assuming that he must be kept physically separated from other prisoners and subject to significant restraint when he leaves his cell, there is no indication that he has abused these privileges. At the same time, denial of telephone contact and visits surely exacerbates his social isolation and loneliness, which pose a serious risk to the physical and mental health of older adults.10 Similarly, there is no apparent justification for restricting Sunny Bayou to “very limited outdoor opportunities.” Despite his history of fighting, there is no reason he should not be afforded ample outdoor exercise, either alone or under close staff supervision.

The Silver case raises an additional concern. Honest corrections administrators will admit that some prisoners are kept in isolation not because they pose a security threat, but because public opinion or the correctional officers’ union demands it. This is certainly a risk in the case of Silver who, having killed two prisoners and an officer, is undoubtedly a high-profile and notorious prisoner. Whatever his past behavior, at the age of 68 and suffering from significant physical health problems, the likelihood that he would or could assault prisoners or staff is essentially nil.11 It goes without saying that isolated confinement of a prisoner can never be justified by the unpopularity of that prisoner or by other forms of political pressure.

A second fundamental principle is that when it comes to safely managing challenging prisoners, one size does not fit all. Given the well-established risks of harm, the imposition of social isolation or environmental deprivation can be justified only to the extent they are essential to manage the security risks posed by a particular prisoner at a particular point in time. Thus a prisoner like Silver, who has not abused visiting or telephone privileges, should not be deprived of these essential lifelines of social contact. By contrast, some restriction or monitoring of communications with the outside world may be justified in the case of Tony Menace if there is evidence that he has been using these contacts to continue his criminal activity.

And isolated confinement should never be prospectively imposed for a determinate period of years, as proposed in the case of Tony Menace. People and circumstances change, and restrictions that are necessary today may be gratuitous and indefensible in six months or a year. This is particularly true in the case of youthful prisoners; a growing body of both case law and psychological research recognizes their unique capacity to grow, mature, and change.12 But all prisoners are entitled to have their placement in isolation justified based on the risk they currently pose, not something they did years ago.13 We are not told how long it has been since Silver’s last episode of assaultive behavior, but it is hard to believe that his extraordinary 35 years in extreme isolation were based on meaningful periodic determinations that he posed a continuing risk. And isolation can never be justified based simply on a prisoner’s sentence or crime of conviction.14

Perhaps the most important principle to bear in mind in managing difficult prisoners is that more isolated confinement does not necessarily equal greater prison security and public safety. There are indications that prisoners held in such conditions actually have higher recidivism rates than comparable prisoners held in less deprived circumstances.15 And evidence is mounting that alternatives to isolation can enhance, rather than imperil, prison security.16 Isolation damages people—many of them profoundly and permanently—and this, too, is a risk that corrections professionals must work to minimize.

End Notes

1. Angela Browne, Alissa Cambier, Suzanne Agha (2011). Prisons within prisons: The use of segregation in the United States, Fed. Sentencing Rptr. 24, 46.

2. George Pawlawczyk & Beth Hundsdorfer, “Trapped in Tamms: Supermax Prison Confines Inmates to Cells 23 Hours a Day,” Belleville News-Democrat, Aug. 5, 2009.

3. See, e.g., Ram Subramanian and Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States (Vera Institute of Justice, October 2013), at 13 (describing the exceedingly rare use of isolated confinement in German and Dutch prisons). Available at http://www.vera.org/sites/default/files/resources/downloads/european-american-prison-report-v3.pdf

4. See, e.g., American Civil Liberties Union of Colorado (2013). Out of Sight, Out of Mind: Colorado’s Continued Warehousing of Mentally Ill Prisoners in Solitary Confinement.

5. See, e.g., New York Civil Liberties Union (2012). Boxed In: The True Cost of Extreme Isolation in New York’s Prisons at 17 (describing prisoners placed in isolation for minor rule violations).

6. See, e.g., Human Rights Watch and American Civil Liberties Union (2012). Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States at 53-57 (describing youth in adult prisons and jails placed in “protective” solitary confinement).

7. See, e.g., Arizona Department of Corrections Department Order 801, Inmate Classification, sec. 801.03 (prisoners sentenced to death, or those sentenced to life imprisonment who have served less than two years, are automatically classified “maximum custody”).

8. Jones’El v. Berge, 164 F. Supp. 2d 1096, 1098 (W.D. Wis. 2001).

9. Beard v. Banks, 548 U.S. 521, 526 (2006).

10. See, e.g., A Shankar, A. McMunn, J. Banks & A. Steptoe (2011). Loneliness, social isolation, and behavioral and biological health indicators in older adults, Health Psychology 30(4), 377-385.

11. See American Civil Liberties Union (2012). At America’s Expense: The Mass Incarceration of the Elderly at 12-25 (discussing the sharp reduction in criminal activity with advancing age).

12. See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464 & n. 5 (2012) (citing the transient nature of antisocial behavior in many juveniles).

13. While the Supreme Court warned in Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983), that “administrative segregation may not be used as a pretext for indefinite confinement” and that “[p]rison officials must engage in some sort of periodic review of the confinement of such inmates,” in practice this has provided very little protection, and some prisoners are held in long-term isolation based on conduct years or even decades previously.

14. See Prieto v. Clarke, 2013 WL 6019215 (E.D. Va. 2013) (holding that automatic and indefinite placement of death-sentenced prisoner in isolated confinement violated Due Process).

15. See David Lovell, L. Clark Johnson and Kevin C. Cain, (2007). Recidivism of supermax prisoners in Washington State, Crime & Delinquency 53, 633.

16. See Terry A. Kupers, et al. (Oct. 2009). Beyond supermax administrative segregation: Mississippi’s experience rethinking prison classification and creating alternative mental health programs, Criminal Justice and Behavior, 36, 1037-1050 (describing decrease in serious incidents and use of force after reduction in isolated confinement at Mississippi prison); see also American Civil Liberties Union of Maine (2013), Change Is Possible: A Case Study Of Solitary Confinement Reform In Maine.