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

 
 

Testing the Rationales for Long-Term Isolation: Three Scenarios

by Laura L. Rovner

Law is not brutal in its operation. Law is not savage. Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by nonbrutal methods, which respect rather than mutilate the dignity and agency of those who are its subjects.1

Professor Cohen’s three vignettes ask us to confront whether and under what circumstances the use of long-term penal isolation2 is justified. They do so by presenting difficult situations that require us to examine the purposes of long-term isolation and to assess not only whether solitary confinement achieves those goals, but also at what cost.

Before examining the particulars of the scenarios presented by Professor Cohen, I should make explicit two of the underlying premises of my analysis:

• Long-term solitary confinement is harmful and undermines overall psychological well-being.3

• Long-term solitary confinement is particularly harmful for those who are already vulnerable, such as people with mental illness or juveniles.4

With these premises in mind, the ultimate question for me in assessing each of the three scenarios is whether the harm inflicted by extended penal isolation is justified by the proffered rationale(s). As a general matter, the reasons offered by correctional systems for putting prisoners in long-term isolation echo Western theories of punishment more generally: retribution, deterrence, rehabilitation, and incapacitation,5 though incapacitation and deterrence are the two most frequently cited. As I hope to demonstrate through my analysis below, none of these rationales justify long-term isolation, even in seemingly difficult and intractable circumstances.

With that background, I turn to the scenarios, discussing them in reverse order.

Vignette III: Sunny Bayou

At issue in this scenario is the use of long-term, possibly indefinite, solitary confinement for Sunny, a minor child. The reasons given for isolating Sunny are repeated instances of fighting and the staff’s belief that he is a gang leader; in punishment theory parlance, incapacitation and deterrence (and possibly rehabilitation, given Sunny’s age). Although the proposed plan contemplates visits by teachers and mental health specialists, it does not specify the nature and frequency of these visits. It also provides Sunny only “very limited” access to outdoor exercise.

I agree with the objections raised by Sunny’s counsel (isolation is particularly harmful at Sunny’s developmental stage and deprives him of legislatively-mandated classroom opportunities). In recent years especially, there is no shortage of research about the changes in brain development in adolescence that make it especially difficult to comply with programs of the sort that Sunny is being subjected to.6 As noted very recently in the Rethinking Rikers report, “[b]ecause adolescents are still developing their ability to self-regulate, they may be impulsive, use poor judgment, or lack mature decision making ability, especially in emotionally charged settings.”7 But as researchers also have pointed out, “Luckily, the very factors that make adolescents susceptible to anti-social or criminal behaviors (i.e., ongoing brain development and increased vulnerability to outside influences) also make them more amenable to reform. Thus, it behooves the criminal justice system to capitalize on the malleability of adolescent development and implement programs to actively support adolescents in their acquisition of pro-social behaviors.”8

For those reasons, I would suggest implementing a plan for Sunny that includes the features of “The Missouri Model,”9 much of which has been incorporated into the Rethinking Rikers report. Developed 30 years ago, it has consistently produced better outcomes in recidivism rates and safety and is widely regarded as providing a vastly more humane and constructive approach to juvenile justice. While space constraints preclude a more detailed description, the salient features of such a program would include: (1) placement of Sunny in a small group/mini-community; (2) therapy and rehabilitation mechanisms that are proven to reduce future criminal conduct and reform delinquent behaviors, including creation of an individual profile for behavior management, token economy techniques, cognitive-behavioral therapy, and skill-building programs; (3) use of an alternative disciplinary model which takes into account Sunny’s age and mental health status and also employs de-escalation techniques soon after an episode of acting out.

Additionally, short-term isolation should be used only as a last resort to interrupt current acting-out behavior where Sunny poses an immediate threat to himself or others; it must end as soon as he regains self-control, and cannot exceed four hours. Similarly, “room confinement” for 24 hours should be used only in extreme situations where a major rule violation has occurred and lesser restrictive discipline techniques have been exhausted; it should never be imposed for more than 72 hours. Finally, Sunny’s plan should include out-of-cell access to education services and other programming, and physical recreation for at least four hours per day.10

Finally, I note that the indefiniteness of the Sunny’s plan is concerning: his release from the program depends on a security clearance assessment prepared by staff, but there is no description of the criteria used in conducting that assessment, much less any indication that the criteria have been provided to Sunny. Consistent with the basic tenets of procedural due process, Sunny should be provided with a rulebook that lists the circumstances under which he can be put in isolation or room confinement, as well as notice and an opportunity to be heard. (This is particularly important here, since one of the justifications for placing Sunny in isolation is staff’s “belief” that he is a gang leader. Experience in California and other states demonstrates that, in many correctional settings, prisoners can be “validated” as gang members based on having certain reading materials, associations with other prisoners, and other questionable criteria.) Sunny also should be afforded an opportunity to appeal any administrative decision.11

Vignette II: Tony Menace

On its face, this scenario presents a classic case for isolated confinement based on the need for incapacitation. Not only has Tony been convicted of a violent crime, he is also a gang leader who is suspected of ordering hits on rival gang members inside and outside prison and of continuing to conduct a drug business via relatives who visit him. While the need to stop him from engaging in these activities is obvious, the method for doing so is not. A closer look at Tony’s situation reveals countervailing concerns that counsel against placing him in extreme isolation.

First, Tony has been diagnosed with a significant mental illness. What we know from virtually every study that has been conducted is that people with mental illness deteriorate in solitary confinement. This is because, as Dr. Craig Haney explains:

Although social deprivation is at the core of solitary or isolated confinement, and what seemingly accounts for its most intense psychological pain and the greatest risk of harm, these kinds of units deprive prisoners of more than social contact. Thus there are characteristically high levels of repressive control, enforced idleness, reduced environmental stimulation, and physical deprivations that also lead to psychological distress and can create even more lasting negative consequences. Indeed, most of the things that we know are actually beneficial to prisoners—such as increased access to and participation in institutional programming, meaningful and purposeful activity, visits with persons from outside the prison, and so on—are either functionally denied or greatly restricted . . . In addition to the social pathologies that are created by the experience of this especially harsh and deprived form of confinement, these other stressors also can produce their own negative psychological effects.12

We also know that in his current placement, Tony is receiving what appears to be inadequate mental health care,13 and in my experience, there is no reason to believe that his mental health care would improve if placed in extreme isolation. As Dr. Terry Kupers has observed:

Prisoners suffering from serious mental illness are disproportionately consigned to solitary confinement for much of their term in prison, where they are unlikely to receive adequate treatment, they are not going to participate very much in rehabilitation programs, and after they have spent a number of years in prison, their psychiatric disorder is likely to be more severe, more chronic, less amenable to treatment, and they are more likely to leave prison . . . broken and incapable of adjusting to life in the community. Destroying a prisoner’s ability to cope in the free world is one of the worst things prison does.14

For all of these reasons, it is hard to imagine that Tony will emerge from 20 years in extreme isolation better than he is now.

How, then, to balance Tony’s needs (and those of society, since Tony is projected to be released at age 40) and those of the prison? Even without an explicit goal of rehabilitation (which correctional systems have largely abandoned, mostly implicitly but sometimes expressly), there is still arguably a right not to be made “worse” by one’s conditions of confinement,15 and presumably a desire on the part of correctional officials not to jeopardize public safety by making a prisoner more violent, dangerous, and less able to cope with community life upon his release.16 But as is often the case with the decision to put a prisoner in prolonged solitary confinement, “when all you have is a hammer, everything looks like a nail.”

Nevertheless, especially in light of the goal–incapacitation (and presumably deterrence)–of the particular conduct that the prison wants to proscribe, it is not at all clear that the constellation of conditions that comprise extreme isolation are necessary or conducive to achieving that goal. Parsing the prison’s legitimate concerns a bit more finely suggests that the most important things are to stop the gang activity and the drug business being carried out through Tony’s visits with relatives. To do so, the prison might, for example, permit only non-contact visits with those relatives for some period of time. Additionally, to prevent (or at least reduce) the gang communication necessary to order hits, he can be housed in a unit or pod with prisoners who are not members of his gang, and communication monitoring can be put in place for Tony’s correspondence, phone calls, and visits.

Indeed, because of his serious mental illness, Tony should be placed in a unit where he can receive appropriate mental health care. The consent decree in Presley v. Epps provides a useful model here.17 In that case, the State of Mississippi placed mentally ill prisoners who had formerly been in administrative segregation into units where they could participate in congregate activities in program phases while also receiving intensive mental health services where the men live and work.18 Prisoners in the program are able to progress to phases with increasing privileges via an incentive plan that rewards appropriate behaviors and also includes group treatment and ultimately congregate, peer-facilitated programming. Perhaps most significant, the program is comparatively short in time (three to six months) and also includes intensive individual treatment with mental health staff.19

Vignette I: Tom Silver

Tom Silver, the prisoner in this vignette, is 68 years old and has been held in “the most extreme form of penal isolation available” for 35 years.20 According to the description, Mr. Silver, who is described as “aligned with the Aryan Brotherhood,” was placed in solitary confinement following the murders of two other prisoners as well as a correctional officer. Given his “dangerously deteriorated” mental and physical health, the question asks whether a change in his custody status for the remainder of his life sentence is warranted, and also whether his 35 years in extreme isolation was appropriate or whether there are any therapeutic interventions that should have been provided.

In analyzing these questions, it is again important to first make explicit the purported rationales for Mr. Silver’s extreme and prolonged isolation. From the description provided, it appears that primary justification for isolating Mr. Silver is incapacitation, given his record of prior violence.21 But given Mr. Silver’s advanced age and the statistical reality that male prisoners tend to “age out” of violence (particularly after age 50), his prior history should not be dispositive in determining his conditions of confinement 35 years later, especially if he has not engaged in violent behavior or other serious misconduct in recent years.

The fact that Mr. Silver’s physical and mental health have dangerously deteriorated over those 35 years is not surprising and provides the most compelling reason for easing his conditions of confinement. As Dr. Haney recently testified at a hearing before the California legislature, “we now know from extensive research done in other contexts that social isolation, loneliness, and social exclusion—which prisoners in solitary confinement experience in abundance—are not just painful but can, as one science writer recently put it, ‘ravage the body and the brain.’ ...

[P]rolonged social deprivation has the capacity to literally change who we are, physically as well as mentally.”22

The seriousness of Mr. Silver’s physical and mental deterioration not only undermines the notion that incapacitation in the form of extreme isolation is necessary, it also raises the question of whether other factors may be motivating the prison’s decision to keep him in these conditions, such as deterrence of other prisoners by making an example of Mr. Silver, or even retaliation, given that one of his victims was a correctional officer. Hopefully, it goes without saying that neither of these factors justify continuing to hold Mr. Silver in extreme solitary confinement almost four decades later.

To be sure, given the length and extraordinary nature of his isolation, considerable care and consultation with mental health experts will be crucial to determining how best to transition him into an environment where he will regularly interact with other people. Presumably the transition will be gradual and should include consideration of his compatibility (including age and other dimensions) with the prisoners with whom he will be housed and expected to socialize. Having said that, the easing of some of his restrictions could and should begin immediately, such as additional telephone calls and visits, especially with family members, the opportunity to exercise in a space that is not “closely confined” and allows him to interact with a small number of other prisoners, and access to materials and programs that help to alleviate the forced idleness and lack of stimulation that typically accompany segregation.

Also important will be mental health treatment to address the deterioration Mr. Silver currently experiences as well as helping him to prepare to be around other people again. As Dr. Haney has observed, “some prisoners cope with the asociality of their daily existence by paradoxically creating even more. That is, they socially withdraw further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary confinement and its attendant procedures require. Others move from initially being starved for social contact to eventually being disoriented and even frightened by it. As they become increasingly unfamiliar and uncomfortable with social interaction, they are further alienated from others and made anxious in their presence.”23 To the extent that Mr. Silver’s mental health has deteriorated in this way, intensive mental health care and treatment likely will be necessary—and should have been provided all along.

Conclusion

It would be disingenuous to pretend that my belief that long-term penal isolation is simply wrong has not been challenged by the situations presented in these scenarios. But that is exactly why it is important to consider them. The three scenarios presented here push us to go beyond general principles and positions related to the use of isolation, and force us to explore the consequences of those positions as they play out in complex and difficult examples. While I have taken the position that long-term solitary confinement is not warranted in any of the three scenarios, “[I] do so in a spirit that recognizes the enormous burden on those responsible for actual policy decisions. But in the end, in a democracy, that is all of us, and so we must all take responsibility for what we now do and become as a nation.”"24

End Notes

1. Jeremy Waldron, “Jurisprudence for the White House,” 105 Columbia L. Rev. 1681, 1726-27 (2005).

2. Professor Cohen defines this term as “separation [that] takes the form of segregated housing with varying degrees of limitation on movement, interaction with staff and other inmates, on exercise, visits, reading material, and access to programs.” Fred Cohen, “Penal Isolation: Beyond the Seriously Mentally Ill,” 35 Crim. Just. & Behav. 1017, 1021–(2008).

3. The data that establish these harmful effects have been collected in studies conducted over a period of several decades, by researchers from several different continents who had diverse academic backgrounds and a wide range of professional expertise. For a detailed examination of the psychological consequences of solitary confinement and references to the many empirical studies that support those consequences, see, e.g., Craig Haney & Mona Lynch, “Regulating the Prisons of the Future: The Psychological Consequences of Supermax and Solitary Confinement,” 23 NYU Rev. of L. & Soc. Change 477 (1997). See also Hans Toch, Men in Crisis: Human Breakdowns in Prisons, p. 54. Piscataway, NJ: Aldine Transaction-Rutgers State University Press (1975); Christopher Burney, Solitary Confinement. New York: St. Martin’s Press (1961); Frank Rundle, “The Roots of Violence at Soledad,” in Erik Olin Wright, ed., The Politics of Punishment: A Critical Analysis of Prisons in America, pp. 163-172. New York, NY: Harper Colophon (1973); Robert Slater, “Psychiatric Intervention in an Atmosphere of Terror,” 7(1) Am. J. of Forensic Psychiatry 5-12 (1986); Robert Slater, “Abuses of Psychiatry in a Correctional Setting,” 7(3) Am. J. of Forensic Psychiatry 41-47 (1986); Stuart Grassian, “Psychopathological Effects of Solitary Confinement,” 140 Am. J. Psychiatry 1450 (1983).

4. See, e.g., “Position Statement on Segregation of Prisoners with Mental Illness,” American Psychiatric Ass’n, Dec. 2012; Madrid v. Gomez, 889 F. Supp. 1146, 1223 (1995); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D.Tex. 1999); Jones’El v. Berge, 164 F. Supp.2d 1096, 1101-02 (W.D. Wisc. 2001) (effects of isolation on prisoners with mental illness); see also Growing Up Locked Down, Human Rights Watch & ACLU 58 (Oct. 2012) (effects of isolation on juveniles). Available at https://www.aclu.org/files/assets/us1012webwcover.pdf

5. Norval Morris & David Rothman (eds.), The Oxford History of the Prison: The Practice of Punishment in Western Society IX New York, NY: Oxford University Press (1998).

6. See, e.g., Dustin Wahlstrom et al., “Developmental Changes in Dopamine Neurotransmission in Adolescence: Behavioral Implications and Issues in Assessment,” 72 Brain & Cognition 146, 150, 151 (2010). Available at www.cehd.umn.edu/icd/cnbd/academic/documents/Research/Collaborative%20Publications/2010%20Collaborative%20Pubs/
Wahlstrom%20et%20al_Developmental%20changes%20in%20dopamine_2010.pdf

7. Yaroshefsky, Ellen, et al. (January 2014). Rikers Report: Moving From a Correctional to a Therapeutic model for Youth, Proposal for Rule-making, Report for the NYC Board of Correction [hereinafter Rethinking Rikers] at 17. Available at http://www.cardozo.yu.edu/sites/default/files/Rethinking%20Rikers_0.pdf

8. Id.

9. Richard Mendel, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders [hereinafter Missouri Model] 2010. The Annie E. Casey Foundation, Baltimore, Md. Available at http://www.aecf.org/~/media/Pubs/Initiatives/Juvenile%20Detention%20Alternatives%20Initiative/MOModel/MO_Fullreport_webfinal.pdf

10. Rethinking Rikers at 5-6.

11. Id. at 6-7.

12. Dr. Craig Haney, Expert Report in Sardakowski v. Clements, 12-cv-1326-RBJ-KLM (D. Colo.) at 17 (on file with author).

13. See, e.g., Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1577 (D. Idaho 1984) (“Treatment must involve psychiatric and psychological counseling for those inmates in need of counseling”); Ruiz v. Estelle, 503 F. Supp. 1265, 1336, 1339 (S.D. Tex. 1980), rev’d in part on other grounds, 679 F.2d 1115 (5th Cir. 1982) (finding inadequate treatment where “individual, one-to-one therapy sessions occur very infrequently”).

14. Terry A. Kupers, “Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment’s Sake?” in The Routledge Handbook of International Crime and Justice Studies, pp. 213-232. New York, NY: Routledge (2013).

15. Newman v. State of Ala., 503 F.2d 1320 (5th Cir. 1974).

16. See generally Kupers, “Isolated Confinement” supra n. 14 at 5.

17. Presley v. Epps, 4:05-cv-148-JAD (N.D. MS), Supp. Consent Decree on Mental Health Care, Use of Force, and Classification, (Nov. 13, 2007).

18. Kupers, et al., Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs, 20(10) Crim. Justice & Behav. 6 (2009).

19. Id. at 6-7.

20. I note that this vignette bears significant resemblance to the situation of Tommy Silverstein, one of our clients in the Civil Rights Clinic at the University of Denver College of Law. We represent Mr. Silverstein in Silverstein v. Bureau of Prisons, a federal lawsuit in which he has challenged his 31 years in extreme isolation. In analyzing Vignette I, I wish to make clear that I do so based only on the facts provided regarding “Mr. Silver,” and am not offering a legal opinion here regarding the constitutionality of Mr. Silverstein’s conditions of confinement. Those arguments may be found in our briefing of his appeal to the U.S. Court of Appeals for the Tenth Circuit. See Silverstein v. Bureau of Prisons, 12-1450, U.S. Court of Appeals for the Tenth Circuit, Appellant’s Opening Brief, Doc. 01019005796 (Feb. 2, 2013) & Appellant’s Reply Brief, Doc. 01019047180 (May 2, 2013).

21. Having said that, however, the length and extreme nature of his isolation coupled with the fact that he killed a correctional officer, does cause one to wonder whether retribution also may be playing a role.

22. Testimony of Prof. Craig Haney to the California Senate and Assembly Committee on Public Safety, Hearing on “CDCR’s New Policies on Inmate Segregation: The Promise and Imperative of Real Reform,” Feb. 11, 2014 at 6, citing Judith Shulevitz, “The Lethality of Loneliness: We Now Know How It Can Ravage Our Body and Brain,” The New Republic, May 13, 2013.

23. Expert Report of Dr. Craig Haney, Silverstein v. Bureau of Prisons, 07-cv-2471-PAB-KMT, Apr. 13, 2009 at 14 (on file with author).

24. Charles Fried & Gregory Fried, Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror, p. 17 New York, NY: W.W. Norton & Co. (2010).

*Laura L. Rovner is the Ronald V. Yegge Director of Clinical Programs & Associate Professor of Law, University of Denver Sturm College of Law

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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