Editorís Introduction: The Set-Up
Reform does not come easily or quickly to corrections. Change, however, is another matter. For example, the federal prison population has exploded since 1980. Imprisonment rates began a steady, then near meteoric, climb in the early 1970s, peaking at 1,615,487 prisoners in 2009.1
Since 2011, prison populations have begun to dip, driven primarily by economic, not ideological, factors. In that same timeframe, this nation’s reliance on penal isolation was under increased pressure in the courts, from a growing number of expert commentators, and in the world of public opinion.
The primary reformative concern centers on penal isolation in excess of 30 days; conditions of extreme social isolation; absence of congregate, recreational, and dining activities; and the absence of any significant programming or mental health care. Quite often there are no effective status review mechanisms by which the inmate may seek to enhance limited amenities, alter the inherently limited liberty, or simply move out of penal isolation.
There are tragic cases of discharge to the community directly from long-term isolation. Nikko Jenkins, for one, killed four people in three separate shootings some three weeks after he was released from isolation and the Nebraska prison system.2 It is not this type of tragic, deep-end case, however, that makes the case for reform as much as the quiet, pervasive psychological and socialization damage imposed on the thousands who physically survive what is a form of torture and who are quietly but desperately damaged.
In Rick Raemische, “My Night in Solitary,” The New York Times, February 21, 2014, at A-25, the new Commissioner of Corrections in Colorado spent 20 voluntary hours in segregation and emerged an energized convert for reform. His focus was on the damage caused inmates by the confinement and, as I just noted, the damage too often caused by them after their release to the community. His predecessor had been shot and killed at his home’s door by a recently released inmate who had spent considerable time in segregation.
We have no firm numbers on the precise number of U.S. prisoners held in penal isolation but 82,000 is a reasonable estimate for the state and federal systems.3 While that is a relatively small percentage of our still bloated prison system, it is nonetheless a very large absolute number of people in penal confinement who are constitutionally owed a reasonably safe environment, who are owed a duty of reasonable care and protection.
Successful litigation in this area has focused on the harm caused by penal isolation to those with mental illness or who are quite young. On the other hand, as Professor Michael Mushlin correctly writes, “Virtually every court which has considered the issue has held that the imposition of solitary confinement, without more, does not violate the Eighth Amendment. Arguments that isolation offends evolving standards of decency, that it constitutes psychological torture, and that it is excessive because less severe sanctions would be equally efficacious, have routinely failed.”4
Ultimately, we may be headed toward a judicial consensus that extended penal isolation as currently practiced is per se an unconstitutional Cruel and Unusual Punishment. In its very essence, it inflicts needless pain and suffering; it is excessive in relation to any valid penological goals that might be pursued and the evolving standards of decency of our contemporary society condemn this degrading, inhumane, and life-altering sanction.
A recent study of the relationship between solitary confinement in New York City jails and self-harm added wight to the findings on harm. Analyzing data from all jail admissions between January 1, 2010 and October 31, 2012, the multiple authors/researchers concluded:
According to our analysis, length of stay in jail, SMI [serious mental illness], solitary confinement, and young age appear to be important and independent predictors of self-harm in jail. These data support the need to reconsider the use of solitary confinement as punishment in jails, especially for those with SMI and for adolescents. Recently, professional societies for adult and adolescent mental health care have made recommendations against the use of solitary confinement as punishment for adolescents and seriously mentally ill inmates.5
In this exclusive Correctional Law Reporter Symposium, I asked a number of outstanding experts in the area of penal isolation to provide their solutions to three difficult, factual vignettes. The vignettes were purposely selected to represent deep-end problems; problems presented by fictional inmates that appear to be so challenging that no one could easily provide a pat solution.
I also suspected that more traditional corrections administrators and commentators might reflexively endorse penal isolation, perhaps in a less-than-full vigor form. That suspicion will not be validated from these articles.
The vignettes concededly pose deep-end issues. We now have a systemic approach where the most difficult cases not only drive the system, they bring run of the mill behavioral issues with them in their wake. A deep-end, seemingly intractable problem requires an answer, a solution, and that is what I sought in creating these vignettes. The authors did not disappoint me and they will not disappoint your either. To my knowledge, there is nothing like this in the literature. It is neither a Dick-and-Jane approach, lacking only crayons, nor is it a Foucault-like exposition on the philosophy and history of punishment.
The elegant Andrew Coyle, speaking as a former warden and current academic, brings an international perspective as well as a down-to-earth exposition of good prison management. He addresses Norway’s humane handling of Anders Breivik, convicted of murdering 77 people, and the conditions of his confinement. By American standards, Breivik has been sentenced to a four-star hotel and allowed to challenge the concierge.
David Lovell, drawing on his elegant and pragmatic work over the years, proposes a legalistic, “strict scrutiny” approach to penal isolation and the vignettes-as-problems. His approach allows for safety and individual redemption. It calls for problem-solving, not simply an easy reflexive approach.
David C. Fathi, attorney and thoughtful Director of the ACLU Prison Project, helps set the stage for the more detailed case analyses that follow. More isolated confinement, he argues, does not create greater prison security or public safety.
Terry Kupers, M.D., perhaps the leading psychiatrist involved in the reform of penal isolation, quickly recognizes the extreme nature of the vignettes. He concedes the obvious need for more security while resisting the reflexive lock ‘em down mentality.
In Martin Horn, we have a former prison and jail administrator speaking from his experience, intelligence, and heart. He does not avoid the need to, e.g., confine “Tom so that he can do no harm” and accepts the enhanced responsibility for Tom’s well being. (You will soon meet Tom-of-the-vignettes.) He allows for some human interaction and finds no reason to deprive this one-time, highly dangerous prisoner of phone calls, visits, and access to television and radio, books and newspapers.
There is no person in the United States more involved with issues of classification and penal isolation practices than James Austin, Ph.D. Read any significant legal case in this area and James Austin is very likely to be serving as an expert. He provides very carefully considered programs for each of the vignette characters and explains why he makes his recommendations.
Extraordinary terms (35 years, for example) are taboo while opportunities to grow and change ones’ circumstances are favored. He is not afraid of dealing with the inmate who is rather clearly a current and serious threat and providing a secure program with built-in opportunities to improve.
University of Denver Professor Laura Rovner, an active litigator in this area, provides a thoughtful, well-documented analysis of these vignettes. She makes clear that long-term solitary confinement is harmful, particularly to those who are more vulnerable. She is of the view that none of our traditional rationales for punishment justify long-term penal isolation.
Here are the vignettes each of our experts was asked to study and resolve.
Vignette I. Tom Silver, aligned with the Aryan Brotherhood, killed a black inmate while confined in a maximum security prison. Later, he helped kill another black inmate he thought was out for revenge and dragged the lifeless body around the prison tier as a terror-invoking display. Years later, while in punitive segregation, with another inmate’s aid, he slipped his cuffs on the way to the shower and stabbed to death an escort officer.
After the initial killing and to the present time, the 68 year old has been held in the most extreme form of penal isolation available in this prison system: a tiny, airless cell with a concrete bed, a sink, toilet and shower, and a narrow slit for a window; access to solitary, closely confined exercise five hours a week; and extremely limited telephone use and visits. His mental and physical health are now dangerously deteriorated and he seeks release from this extreme isolate while serving out his life sentence.
Would you support his change in custody status and, if so, under what conditions?
Do you believe that his 35 years in extreme isolation was appropriate? If not, then describe the conditions of confinement and any therapeutic-like interventions you would have preferred.
Vignette II. Tony Menace is 19 years old and imprisoned for armed robbery. Previously, he was in and out of the juvenile system. Menace is the leader of a gang known for its resort to extreme violence and for distributing illegal drugs. While in prison, there is evidence that Tony has been directing “hits” on rival gang members inside and outside the prison and also continuing his drug business via relatives who visit.
Menace has been diagnosed with a significant mental illness and during his 18 months of imprisonment has received only medication and brief medication compliance sessions with an octogenarian psychiatrist.
Prison officials believe he should be placed in “extreme isolation” (see Vignette I as an example) for the duration of his confinement (20 years) as the only effective means to halt Tony’s dangerous, criminal activities.
Is the extreme and extended isolation (as described in Vignette 1) an appropriate disposition in this case? What alternatives would you propose to achieve rehabilitative and security objectives?
Vignette III. Sunny Bayou is a strapping 15 year old adjudicated as delinquent and confined in the state’s Hopeful Training School. Sunny is constantly getting into fights, and is believed to be a gang leader. After multiple infractions for fighting, staff want to confine Tony in a 15’ x 10’ specially-equipped cell where he would be visited by teachers and mental health specialists and receive very limited outdoor opportunities. His release depends on a security clearance assessment to be prepared by Hopeful staff.
Bayou’s lawyer strongly objects to this “isolation” arguing that it is particularly harmful at Sunny’s developmental stage and deprives him of legislatively mandated classroom opportunities.
What is your view on the staff plan and counsel’s objection?
Are there refinements or additions to the plan that would make it more acceptable? What alternative approach would you deem more desirable?
1. See Erica Goode, “U.S. Prison Populations Decline, Reflecting New Approach to Crime,” The New York Times, July 25, 2013, at A-11.
2. See Fred Cohen, Denial of Needed Mental Health Care, Excessive Segregation and Predictable Tragedy: The Nebraska Ombudsman Report, 16 Correctional Mental Health Report 3 (May/June 2014), which pilloried the process for Mr. Jenkins.
3. See Jean Casella and James Ridgeway, “How Many Prisoners are in Solitary Confinement in the United States,” Solitary Watch, Feb. 1, 2012. Available at http://solitarywatch.com/2012/02/01/how-many-prisoners-are-in-solitary-confinement-in-the-united-states/
4. Michael B. Mushlin, Rights of Prisoners 1, 92-93 (3d ed. 2002).
5. Fatos Kaba, et al., “Solitary Confinement and Risk of Self-Harm Among Jail Inmates,” 10 Amer. J. of Pub. Health 442, 444 (2014).