Solitary Confinement Subject of Unprecedented Congressional Hearing
It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.
— U.S. Senator John McCain, on his treatment as a P.O.W.2
On June 19, 2012, the U.S. Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, held a hearing concerning issues related to solitary confinement – the first time that topic has been addressed by a Congressional committee. Over 250 audience members attended.3
The hearing, titled “Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences,” was chaired by Illinois Senator Richard J. Durbin and included testimony from federal Bureau of Prisons Director Charles E. Samuels, Jr.; Mississippi DOC Commissioner Christopher B. Epps; attorney Stuart M. Andrews, Jr.; exonerated former death row prisoner Anthony Graves; Pat Nolan, president of Justice Fellowship; and University of California psychology professor Craig Haney.4 Prof. Haney was one of the researchers in the Stanford Prison Experiment, an infamous 1971 study that revealed the psychological effects of incarceration on both prisoners and prison staff.5
“In the face of mounting evidence that the use of solitary confinement may in fact be counterproductive, this hearing is an excellent opportunity for the Committee to get a better understanding of this practice,” observed Vermont Senator Patrick Leahy.
An impressive 90 organizations and individuals submitted written statements or comments in advance of the hearing – including the Vera Institute of Justice; American Friends Service Committee; American Bar Association; Just Detention International; several prisoners currently held in solitary confinement, including two on death row; the Center for Constitutional Rights; mothers of prisoners held in solitary and family members of prisoners who died while in segregation; Human Rights Watch; the Innocence Project; former prisoners who had been held in solitary; the National Alliance on Mental Illness; the ACLU and several ACLU chapters; Solitary Watch; the Angola 3;6 the National Immigrant Justice Center; a prison chaplain and several former corrections officials; Physicians for Human Rights; the National Center for Transgender Equality; the Youth Law Center; and the Human Rights Defense Center (HRDC – the parent organization of Prison Legal News).7
The Subcommittee hearing, which included a full-size mock-up of a segregation cell,8 provided an opportunity to ex-amine the origins, scope and conditions of solitary confinement in U.S. prisons, and to consider the social, financial and human costs of keeping prisoners confined in small cells with little meaningful interaction with other people for extended periods of time.
Solitary Confinement: The Past
Solitary confinement in the U.S. prison system has a lengthy history, dating back to the nation’s first prison, the Walnut Street Jail, established in Philadelphia. In 1790, legislation authorized the construction of 16 small, individual cells at the Walnut Street Jail where prisoners were kept in isolation.9 Under what became known as the Pennsylvania System, prisoners were held in solitary confinement and segregated from each other almost all of the time, including during meals. The Pennsylvania System was intended to induce penitence and reformation by providing prisoners with time alone to contemplate their sins.10
However, problems were noted even during the early years when solitary confinement was used as a form of correctional management, and the Pennsylvania System eventually fell out of favor. When Charles Dickens toured the United States in 1842, he visited the Eastern State Penitentiary in Pennsylvania and commented on conditions at that facility, including the use of segregation. He wrote:
The system here, is rigid, strict, and hopeless solitary confinement. I believe it, in its effects, to be cruel and wrong. In its intention, I am well convinced that it is kind, humane, and meant for reformation; but I am persuaded that those who devised this system of Prison Discipline, and those benevolent gentlemen who carry it into execution, do not know what it is that they are doing. I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.... I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body:
and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.11
A more detailed account of the history of solitary confinement in the U.S. prison system, from its inception to its modern usage, is presented in “The Resistable Rise and Predictable Fall of the U.S. Supermax,” by Stephen F. Eisenman, writing for Monthly Review.12
Solitary Confinement: The Present
According to a March 2006 study by the Urban Institute, an estimated 25,000 prisoners were held in solitary confinement in U.S. prisons, jails and detention facilities as of 2005.13 Solitary confinement takes several forms, including isolation units that are often called Special or Security Housing Units or Special Management Units, but more commonly known in prison vernacular as “the hole” or “seg.”
Prisoners may be placed in solitary for a myriad of reasons, including their security custody level, administrative segregation (ad seg), disciplinary segregation and even protective custody.14 Thus, the actual number of prisoners held in solitary confinement is much higher than the number cited by the Urban Institute, and was estimated at more than 81,600 according to a 2005 census by the Bureau of Justice Statistics.15
Professor Chris Haney, in his testimony before the Subcommittee, stated, “...I believe the renewed use of long-term solitary confinement is the result of the confluence of three unfortunate trends – the era of “mass imprisonment” that began in the mid-1970s and produced widespread prison overcrowding, the shift in responsibility for housing the mentally ill to the nation’s prison systems, and the abandonment of the rehabilitative ideal and its corresponding mandate to provide prison programming and treatment.”16
According to a spokesman for the Bureau of Prisons (BOP), the federal prison system does not use solitary confinement.17 However, the BOP does keep prisoners in segregation in Special Housing Units (SHUs), Special Management Units (SMUs) and an Administrative Maximum (ADX) unit, which serve the same purpose.
BOP Director Charles Samuels testified at the Subcommittee hearing that approximately 7 percent of federal prisoners are housed in segregation units – which, based on the BOP’s current population, equates to around 15,000 prisoners.18
Samuels defended the BOP’s use of segregation, calling it “a critical management tool that helps us maintain safety, security, and effective reentry programming for the vast majority of federal inmates housed in general population.”19 Only upon close questioning did he acknowledge that placement in solitary was not “the preferred option,” and that “there would be some concerns with prolonged confinement.”20
Supermax facilities, a relatively new addition to the U.S. prison system, are literally built around the concept of solitary confinement. The BOP operates the 490-bed supermax ADX unit in Florence, Colorado, and as of 2004 at least 44 states had supermax facilities or units, including Pelican Bay State Prison in California and Red Onion State Prison in Virginia.21 Some jails (including Rikers Island in New York City), as well as women’s prisons and juvenile facilities, also maintain solitary confinement units.22
According to Human Rights Watch, “the proliferation of super-maximum security facilities is the most troubling development in U.S. corrections in recent decades.”23
Solitary confinement and supermax prisons are uniquely American in terms of the scope of and reliance on long-term segregation in our nation’s prison system. Other industrialized countries, such as England, do not rely on solitary as a means of controlling or punishing their prisoners.24
Conditions in Solitary Confinement
Solitary confinement is generally defined as isolating prisoners in individual cells for a majority of the time, usually 22-24 hours a day, with minimal contact with other people.25 Prisoners eat, sleep, use the toilet and live in such conditions for extended periods that last up to decades.26 When they leave their cells they are usually handcuffed, shackled and escorted by prison staff.
Access to work and education programs, phones, visitation, showers and even reading material is often restricted (in the latter case, with the approval of the U.S. Supreme Court27). According to a 2008 American Friends Service Committee report, “Buried Alive: Long-Term Isolation in California’s Youth and Adult Prisons,” the lights in segregation cells may be left on 24 hours a day, some solitary confinement cells have no windows, and out-of-cell exercise (30-60 minutes per day) is usually provided in an enclosed “dog-run” or outdoor cage.28
While it is far removed from the reality, one way to experience solitary confinement firsthand is to lock oneself in a bathroom – which is the approximate size of an 8x10’ cell and contains the same amenities of a toilet and sink – and remain there for a period of several years, with meals being delivered through a slot in the door.
Solitary confinement was described by one U.S. District Court as follows:
Inmates on Level One at the State of Wisconsin’s Supermax Correctional Institution in Boscobel, Wisconsin spend all but four hours a week confined to a cell. The “boxcar” style door on the cell is solid except for a shutter and a trap door that opens into the dead space of a vestibule through which a guard may transfer items to the inmate without interacting with him. The cells are illuminated 24 hours a day. Inmates receive no outdoor exercise. Their personal possessions are severely restricted: one religious text, one box of legal materials and 25 personal letters. They are permitted no clocks, radios, watches, cassette players or televisions. The temperature fluctuates wildly, reaching extremely high and low temperatures depending on the season. A video camera rather than a human eye monitors the inmate’s movements. Visits other than with lawyers are conducted through video screens.29
Anthony Graves, who spent over 18 years in Texas prisons – including 12 on death row – before being exonerated in 2010, testified at the Subcommittee hearing about the conditions he experienced. “Like all death row inmates, I was kept in solitary confinement. I lived under some of the worst conditions imaginable with the filth, the food, the total disrespect of human dignity. I lived under the rules of a system that is literally driving men out of their minds,” he stated.30
“Solitary confinement does one thing, it breaks a man’s will to live and he ends up deteriorating.... I have been free for almost two years and I still cry at night, because no one out here can relate to what I have gone through. I battle with feelings of loneliness. I’ve tried therapy but it didn’t work. The therapist was crying more than me. She couldn’t believe that our system was putting men through this sort of inhumane treatment.”31
Robert Hillary King, one of the Angola 3 who spent 29 years in segregation prior to his release in 2001, wrote in his autobiography, “Solitary confinement is terrifying, especially if you are innocent of the charges that put you there. It evokes a lot of emotion. It was a nightmare. My soul still cries from all I witnessed and endured.... There’s no describing the day to day assault on your body and your mind and the feelings of hopelessness and despair.”32
Who is Placed in Solitary?
Corrections officials often claim that the “worst of the worst” prisoners are held in solitary confinement – those who pose a threat to prison staff, security or other prisoners.
While that is certainly true in some cases, other prisoners are placed in segregation because they are perceived as being “troublemakers” due to their religious or political beliefs, or because they violate minor prison rules or exercise their rights by filing grievances and lawsuits.33
Few prison systems have clear, objective standards for placing prisoners in solitary confinement based on the severity of their actual conduct, particularly when they do not pose a threat to staff or other prisoners. Corrections officials have almost unfettered discretion in deciding whether a prisoner should be held in segregation, which leads to arbitrary results.
“These supermaxes, just like the crack cocaine sentencing laws, were part of a tough-on-crime policy that many of us thought made sense at the time,” Senator Durbin stated at the Subcommittee hearing. “But we now know that solitary confinement isn’t just used for the worst of the worst. Instead, we’re seeing an alarming increase in isolation for those who don’t really need to be there, and for many, many vulnerable groups like immigrants, children, LGBT inmates, supposedly there for their own protection.”34
After spending tens of millions of dollars to build and staff supermax prisons, corrections officials apparently feel the need to keep them full to justify their existence. If there is an insufficient number of violent or dangerous prisoners to fill empty supermax beds, then the criteria for placement in segregation are relaxed so that other prisoners can occupy the solitary confinement cells. Thus, it is not surprising that prisoners are sometimes placed in segregation “for petty annoyances like refusing to get out of the shower quickly enough.”35
According to Senator Patrick Leahy, “Although solitary confinement was developed as a method for handling highly dangerous prisoners, it is increasingly being used with inmates who do not pose a threat to staff or other inmates. Far too often, prisoners today are placed in solitary confinement for minor violations that are disruptive but not violent.”36
Consider that the California Code of Regulations, Title 15, Section 3315, outlines dozens of “Serious Rule Violations” that may result in “segregation from the general population.” Such infractions include “possession of five dollars or more without authorization,” “tattooing or possession of tattoo paraphernalia,” “refusal to perform work or participate in a program as ordered or assigned,” “participation in gambling” and “self mutilation or attempted suicide for the purpose of manipulation.”37
In Virginia, a number of prisoners who practice the Rastafarian religion have been held in segregation for over a decade. They were not placed in solitary because they were violent, tried to escape, incited a riot or similar reasons. Rather, they refused – based on their religious beliefs – to cut their hair. Rastafarians let their hair grow in dreadlocks and do not trim their beards, which conflicts with the grooming policy of the Virginia Department of Corrections.38
Consequently, Rastafarian prisoners who refused to cut their hair or shave were kept in solitary. According to a June 2010 Associated Press article, 48 Virginia prisoners were placed in segregation because they would not follow the prison system’s grooming policy.39 In November 2010, 31 Rastafarian prisoners were released from segregation and transferred to another facility; however, some were returned to solitary confinement several months later after they declined to participate in a program that required them to cut their hair and shave their beards.40 The use of long-term segregation to punish Rastafarian prisoners who do not comply with prison grooming requirements has been upheld by the federal courts.41
Also, in Louisiana, two of the Angola 3, Herman Wallace and Albert Woodfox, have been held in solitary confinement or segregation units for 40 years – not because they continue to be violent but because they were involved with forming a Black Panther chapter while incarcerated in the 1970s.42 Prison warden Burl Cain said of one of the Angola 3 prisoners in a deposition, “He wants to organize. He wants to be defiant.... [H]e is still trying to practice Black Pantherism, and I still would not want him walking around my prison because he would organize the young new inmates.”43 When asked whether the Angola 3 were political prisoners, Warden Cain responded, “Well, yes. Well, no, I don’t like the word political.”44
It is clear that in some cases, prisoners are held in solitary confinement in U.S. prisons due to their religious and political beliefs, not because they are violent or dangerous. In other cases – particularly in California – prisoners are placed in segregation because they are deemed to be “validated” gang members or are suspected of having ties to prison gangs. “There is no other state in the country that keeps so many inmates in solitary confinement for so long,” said Alexis Agathocleous, a staff attorney with the Center for Constitutional Rights.45
However, the determination by prison officials that a prisoner is a gang member may be incorrect, as was the case with California state prisoner Ernesto Lira, who was “validated” as a gang member and placed in an isolation unit for 8 years. On September 20, 2009, following a four-week trial, a U.S. District Court held that Lira’s gang validation was not supported by accurate or reliable evidence and his due process rights had been violated.
The court found that as a result of his lengthy stint in solitary, Lira suffered clinical depression and PTSD. His record was expunged and he was awarded over $1 million in attorney fees.46
But far exceeding the above examples, one type of offender is “vastly overrepresented” in segregation and supermax units: prisoners with mental illnesses.47
Solitary Confinement and Mental Health
The negative impact of long-term isolation on prisoners’ mental health is well established. A large body of research has found that solitary confinement results in a plethora of mental health problems;48 that prisoners placed in segregation are more likely to commit suicide than those not held in such conditions;49 and that solitary confinement is particularly damaging for people who have preexisting mental health issues or are otherwise vulnerable, such as juveniles.
As Judge Richard Posner with the U.S. Court of Appeals for the Seventh Circuit wrote, “there is plenty of medical and psychological literature concerning the ill effects of solitary confinement (of which segregation is a variant).”50 And a federal judge in California stated that long-term segregation in a supermax facility “may press the outer bounds of what most humans can psychologically tolerate.”51
Nor is this a new development. In 1890, the U.S. Supreme Court noted problems with solitary confinement in relation to prisoners’ mental health:
The peculiarities of this system were the complete isolation of the prisoner from all human society, and his confinement in a cell of considerable size, so arranged that he had no direct intercourse with or sight of any human being, and no employment or instruction.... But experience demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.52
Solitary confinement can be accurately described as an effective means of driving the sane insane, while making the insane even more mentally ill. As noted by a U.S. District Court, “[Solitary confinement] units are virtual incubators of psychoses – seeding illness in otherwise healthy inmates and exacerbating illness in those already suffering from mental infirmities.”53
One psychiatrist at a California state prison said, bluntly, “It’s a standard psychiatric concept, if you put people in isolation, they will go insane.”54 This is in no small part because people are social by nature and need social interaction to maintain a healthy mental state.55
It is hard to appreciate the scope and seriousness of mental health problems that result from solitary confinement without reading accounts of prisoners who cut their “arms and legs with chips of paint and concrete,” smear themselves and their cells with feces, strangle themselves with their clothes, swallow glass, and cut out their own testicles.56 Or the Texas prisoner, held in segregation on death row, who gouged out and ate his one remaining eye.57
According to Professor Haney’s testimony at the Subcommittee hearing, “I recall a prisoner in New Mexico who was floridly psychotic and used a makeshift needle and thread from his pillowcase to sew his mouth completely shut. Prison authorities dutifully unstitched him, treated the wounds to his mouth, and then not only immediately returned him to the same isolation unit that had caused him such anguish but gave him a disciplinary infraction for destroying state property (i.e., the pillowcase), thus ensuring that his stay in the unit would be prolonged.”58
Anthony Graves testified at the hearing about the effects of solitary confinement on other prisoners that he had witnessed during his lengthy incarceration: “I would watch guys come to prison totally sane and in three years they don’t live in the real world anymore,” he said. “I know a guy who would sit in the middle of the floor, rip his sheet up, wrap it around himself and light it on fire.”59
Attorney Stuart Andrews, whose law firm represents mentally ill prisoners in South Carolina’s prison system in a class-action lawsuit, testified at the Subcommittee hearing that prisoners with mental health problems are more likely to be placed in segregation than those without such disabilities.
“In South Carolina mentally ill inmates are twice as likely to be in solitary confinement as inmates without mental illness (15.81% v. 7.85%); two and a half times as likely to receive a sentence in solitary that exceeds their release date from prison (4.65% v. 1.86%); and over three times as likely to be assigned to an indefinite period of time in solitary (8.66% v. 2.78%),” he said.60
The American Bar Association’s revised Standards for Criminal Justice, Treatment of Prisoners, approved in February 2010, state that “No prisoner diagnosed with serious mental illness should be placed in long-term segregated housing,” and that the mental health of prisoners held in segregation should be carefully monitored.61 Unfortunately, the ABA standards carry little weight with corrections officials and do not create legally-enforceable rights.
Release from Solitary Confinement
Significantly, many prisoners are in segregation because they have preexisting mental health problems that make it difficult for them to follow prison rules.62 Once in segregation they decompensate, which makes it almost impossible for them to “earn” their way out of solitary through good behavior, because that requires following additional rules and regulations. This creates a Catch-22 that keeps mentally ill prisoners in solitary for extended periods of time, although they could be better managed with mental health treatment.63
Also, in some states, prisoners are not removed from segregation unless they become informants for prison officials or complete their sentences and are released – typically known as “snitch, parole or die” policies,64 as those are the only ways out of solitary confinement. With respect to “validated” gang members, however, prisoners who are erroneously validated and are not in fact gang members cannot snitch (“debrief”), since they are not members of a gang; thus, they cannot “earn” their way out of segregation. Such was the case with Ernesto Lira.65
Don Specter, director of the Prison Law Office in California, noted that although prisoners “identified as gang members are granted periodic hearings, under the current policy they are not allowed to confront their accusers – or even to know who their accusers are. Nor can they cross-examine witnesses, present their own evidence or argue their case be-fore a neutral decision maker, all basic rights afforded to defendants in the outside judicial system.”66
In short, in many cases there are no specific criteria governing release from segregation. While most prison systems have a formalized review process, in which a prisoner’s placement in solitary is examined on a regular basis to determine whether they should be released (typically every 30-90 days), the review process is usually pro forma, with prison staff rubber-stamping decisions to continuously renew terms of solitary confinement.
Although the reviews constitute minimal due process for prisoners placed and held in segregation, in practice very little process is due and there is no meaningful, independent review of decisions to keep prisoners in solitary for years or even decades. When such decisions are challenged, courts typically defer to the “informed discretion of corrections officials.”67
As Justice Fellowship director Pat Nolan testified at the Subcommittee hearing, “It is troubling that so many inmates are held in the harsh circumstances of solitary confinement for such long periods of time without recourse and without a systematic review of their cases. The harm that such prolonged periods of isolation cause are well documented, and these policies put the public at great risk after the inmates held in isolation are released.”68
Solitary Confinement and Public Safety
The vast majority of prisoners, including those in segregation, will one day be released. When they return to the community, prisoners held in prolonged solitary confinement with little social interaction or ability to participate in education, treatment or other rehabilitative programs will have a much more difficult time assimilating into society. This translates to higher recidivism rates, which in turn implicate public safety concerns.
“The longer you leave someone in there without rehabilitation, there is a possibility they will come out more dangerous,” said Texas state Senator John Whitmire, on the use of administrative segregation in the Texas Department of Criminal Justice (TDCJ). Around 8,144 Texas prisoners are held in TDCJ ad seg units, down from 9,752 in 2005.69
According to recidivism data released by the California Department of Corrections in November 2011, the one-year recidivism rate for prisoners held in SHUs was 52.2%, compared with 47.6% for prisoners not assigned to SHUs. After two years, the recidivism rate was 64.9% for prisoners held in SHUs compared with 60.2% for non-SHU prisoners; at three years the rates were 69.8% and 64.8%, respectively.70
In a 2006 report, the Commission on Safety and Abuse in America’s Prisons warned that “the misuse of segregation works against the process of rehabilitating people, thereby threatening public safety.”71
This is particularly true for prisoners released directly from segregation units to the community with no transition period or post-release supervision. The Commission on Safety and Abuse in America’s Prisons stated, “Prisoners often are released directly from solitary confinement and other high-security units directly to the streets, despite the clear dangers of doing so.”72
The Commission cited “a large study of former prisoners in Washington” that “tracked rearrest rates among people re-leased from prison in 1997 and 1998, a total of 8,000 former prisoners.”73 The study found that prisoners who had spent at least three continuous months in segregation, and often much longer, “were somewhat more likely than the others to commit new felonies. And among the repeat offenders, formerly segregated prisoners were much more likely to commit violent crimes.” Further, prisoners “who were released directly from segregation had a much higher rate of recidivism than individuals who spent some time in the normal prison setting before returning to the community: 64 percent compared with 41 percent.”74
Additionally, in Illinois, the average recidivism rate for adult prisoners for the two years prior to the 1998 opening of the supermax unit at the Tamms Correctional Center was 42.5 percent. In the two years after the supermax opened, the recidivism rate averaged 46.2 percent. In the following two years (fiscal years 2000-2001), the average recidivism rate was 54.5 percent. Thus, recidivism rates in Illinois increased by more than 28 percent from 1996 to 2001, despite – or potentially due to – the opening of a supermax in which hundreds of prisoners were placed in segregation prior to their release.75
Policymakers, however, often don’t make the connection between oppressive conditions in solitary confinement and the effects those conditions have on prisoners in terms of recidivism rates. “I ain’t worried about their comfort level, to be honest,” said Senator Whitmire, counterintuitively, referring to prisoners held in segregation.76
Financial Costs of Solitary Confinement
Beyond the documented problems with solitary confinement, including adverse effects on prisoners’ mental health and increased recidivism rates that endanger public safety, solitary is much more expensive than the cost of housing prisoners in general population units.77
For example, according to the 2006 study by the Urban Institute, the average cost of housing a prisoner in the supermax unit at the Ohio State Penitentiary (OSP) was more than twice as high ($149 per day) than the cost of incarcerating a prisoner in general population ($63 per day).78 Also, as noted by the ACLU in its written statement for the Subcommittee hearing:
[A] 2007 estimate from Arizona put the annual cost of holding a prisoner in solitary confinement at approximately $50,000 compared to only about $20,000 for the average prisoner. In Maryland, the average cost of housing a prisoner in the state’s segregation units is three times greater than in a general population facility; in Ohio it is twice as high; and in Texas the costs are 45% greater. In Connecticut the cost of solitary is nearly twice as much as the average daily expenditure per prisoner; and in Illinois it is three times the statewide average. [internal footnotes omitted]79
According to Senator Durbin, based on FY 2010 data it cost $61,522 annually to house a prisoner in Illinois’ supermax unit at Tamms Correctional Center – almost triple the $22,043 average cost of incarceration at other state prisons.80
The costs are higher because solitary confinement units typically have higher staff-to-prisoner ratios. According to the Urban Institute study, “[The] increased cost of the OSP is due, in part, to the fact that it has a staff-to-prisoner ratio 50 percent higher than that of the state’s maximum-security prison.”81
In California, according to 2010-2011 data, the average annual cost for housing prisoners in Administrative Segregation Units (ASUs) at Pelican Bay State Prison was $77,740, which was 33% higher than the average general population per-prisoner cost of $58,324.82 Further, a 2009 report by California’s Office of the Inspector General estimated “the annual correctional staff cost of a standard ASU bed to be at least $14,600 more than the equivalent general population bed. For the 8,878 ASU beds statewide, this additional cost equates to nearly $130 million a year. While ASUs are an important part of prison population management, unnecessary ASU housing is a waste of taxpayer dollars.”83
Further, supermax facilities and other prisons with solitary confinement units are more expensive to build. According to Solitary Watch, the BOP’s ADX Florence facility was constructed at a cost of $60 million, or more than $122,000 per bed; the supermax Pelican Bay State Prison in California cost $230 million to build, or over $217,000 per bed; and the Tamms Correctional Center was built at a cost of $73 million, or around $146,000 per bed.84 These costs are significantly higher than the typical cost of constructing medium-security prisons, which is around $65,000 per bed.85
Thus, not surprisingly, closing supermax or solitary confinement units can result in substantial savings. According to Mississippi DOC Commissioner Christopher Epps, the 2010 closure of Unit 32 at the Mississippi State Penitentiary at Parchman, a segregation unit, resulted in annual savings of approximately $5.6 million.86 And when Illinois Governor Pat Quinn ordered the closure of the Tamms supermax facility in June 2012, he cited an estimated savings of $21.6 million during the current fiscal year and $26.6 million in 2014.87 However, unionized prison employees filed a lawsuit to keep the facility open, and on September 4, 2012 a state court entered a temporary restraining order preventing Tamms from closing.88
Despite the high costs of maintaining supermax prisons and keeping prisoners in solitary confinement for lengthy periods of time, most states apparently are willing to pay such expenses due to lack of political will and capitulation to corrections officials who contend that the widespread use of segregation is necessary to maintain safety and security.
Constitutionality of Solitary Confinement
While solitary confinement per se is considered to be a constitutional form of punishment, so long as it is accompanied by very minimal due process requirements, extended periods of time in solitary that result in physical or mental suffering may be impermissible. For example, the U.S. Court of Appeals for the Third Circuit stated:
Courts, though, have universally condemned conditions of segregation inimicable to the inmate-occupants’ physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners.
There is a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. Isolation may differ from normal confinement only in the loss of freedom and privileges permitted to other prisoners. The duration and conditions of confinement cannot be ignored in deciding whether such confinement meets constitutional standards.89
A U.S. District Court in Louisiana is currently considering an Eighth Amendment challenge to prolonged solitary confinement in a lawsuit filed by Herman Wallace, 70, and Albert Woodfox, 65, two of the Angola 3 prisoners who have spent 40 years in segregation, primarily at the Louisiana State Penitentiary (LSP) at Angola.90 In 2007 the district court adopted a Report and Recommendation that stated, in part:
Taking the plaintiffs’ evidence as true, and resolving all inferences in the plaintiffs’ favor, as the court must do for purposes of this motion, the court finds that the plaintiffs have introduced sufficient evidence for a reasonable fact finder to determine that the cumulative effect of over 28 years of confinement in lock-down at LSP constitutes a sufficiently serious deprivation of at least one basic human need, including but not limited to sleep, exercise, social contact and environmental stimulation. It is obvious that being housed in isolation in a tiny cell for 23 hours a day for over three decades results in serious deprivations of basic human needs.
It is also a matter of common sense that three decades of extreme social isolation and enforced inactivity in a space smaller than a typical walk-in closet present the antithesis of what is necessary to meet basic human needs. That such isolation and inactivity may be justified in a prison setting under some situations and for some period of time, does not mean that the experience itself is somehow minimized or made less onerous or painful by its necessity. The emphasis on duration in all these cases is in direct response to the acknowledged severity of the deprivation. It becomes a balancing act between the severity of the deprivation and the legitimate necessity for its imposition. With each passing day its effects are exponentially increased, just as surely as a single drop of water repeated endlessly will eventually bore through the hardest of stones.91
Other recent lawsuits challenging solitary confinement are also pending. For example, two prisoners at Pelican Bay State Prison in California, Todd Ashker and Danny Troxell, filed suit in 2009 challenging their lengthy stays in solitary.92 Both had spent over 20 years in 8x10’ windowless segregation cells. On May 31, 2012, the Center for Constitutional Rights took over representation in their lawsuit and amended it to include numerous other prisoners held in solitary confinement.93 According to statistics released by California prison officials in 2011, 513 prisoners at Pelican Bay have been kept in segregation for 10 years or more; of those, 78 have been held in solitary 20 years or more.94
And on June 18, 2012, five prisoners filed a class-action suit against the Bureau of Prisons regarding conditions at the ADX Florence facility, alleging that federal prison officials “have violated BOP policy and the United States Constitution by failing to properly diagnose and treat prisoners at ADX with serious mental illness.”95 The plaintiffs are represented by the law firm of Arnold & Porter and the DC Prisoners’ Project of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
According to the complaint, “the BOP turns a blind eye to the needs of the mentally ill at ADX and to deplorable conditions of confinement that are inhumane to these prisoners. No civilized society treats its mentally ill citizens with such deliberate indifference to their plight.” The lawsuit describes ADX prisoners who are delusional, have engaged in self-mutilation, have tried to commit suicide and who “spread feces and other human waste and body fluids throughout their cells....”96
Despite such conditions, some courts have upheld lengthy stints in solitary confinement. BOP prisoner Thomas “Tommy” Silverstein, 58, has spent the longest time in solitary in the federal prison system; he has been held in segregation units under a “no human contact” order since 1983 after he murdered BOP guard Merle Clutts at USP Marion. Silverstein is currently housed at the ADX Florence facility, and has described his almost three decades in solitary as “a slow, constant peeling of the skin.”97 Prison officials claim he is a former gang leader and still dangerous.
Silverstein filed a lawsuit in 2007 challenging his lengthy, indefinite stay in segregation, but the case was dismissed in September 2011 after a federal court held that conditions at the ADX were not “atypically extreme.”98 Given that the ADX is the BOP’s most secure and restrictive housing unit, one must wonder what the courts consider “extreme.”
Several international authorities, including the United Nations’ Human Rights Committee, Committee Against Torture and Special Rapporteur on Torture, have criticized the practice of holding prisoners in long-term solitary confinement in supermax facilities.99 In October 2011, the UN Special Rapporteur on Torture, Juan E. Méndez, called for a ban on solitary confinement, saying it “is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system.”100
However, the United States largely ignores international law with which it disagrees, including treaties to which it is a signatory; further, it does not submit to the jurisdiction of the International Court of Justice at the Hague, commonly known as the World Court.101
Solitary Confinement: Recent Reforms
According to the 2006 report by the Commission on Safety and Abuse in America’s Prisons:
There is growing consensus that correctional systems should rely less on segregation, using it only when absolutely necessary to protect prisoners and staff – and that further reforms are needed. Keeping people locked down for hours on end is counter-productive in the long run. To the extent that safety allows, prisoners in segregation should have opportunities to better themselves through treatment, work, and study, and to feel part of a community, even if it is a highly controlled community.102
Several state prison systems have taken steps to reduce their use of solitary confinement and have not experienced adverse effects as a result. Unfortunately, in many cases such changes have occurred due to lawsuits and not because prison officials have recognized and voluntarily intervened to remediate the many problems associated with long-term segregation.
In June 2010, as a result of protracted and adversarial litigation, Mississippi agreed to close Unit 32 at Parchman. Prisoners held in Unit 32 were described as the “worst of the worst,” and “were permanently locked down in solitary confinement with no possibility of earning their way to a less restrictive environment through good behavior.”103
Following a consent decree entered in 2006, programs were developed whereby prisoners in Unit 32 could earn their way out of solitary confinement. They were allowed out of their cells, were permitted to eat meals together, and recreational activities and rehabilitative programs were provided.104
Mississippi DOC Commissioner Christopher Epps changed his mind about conditions at Unit 32 during the course of the litigation. “If you treat people like animals, that’s exactly the way they’ll behave,” he said. Epps, who is also president-elect of the American Correctional Association, noted that transitioning prisoners in Unit 32 out of solitary confinement “...worked out just fine. We didn’t have a single incident.”105
He testified at the Subcommittee hearing that “The Mississippi Department of Corrections administrative segregation reforms resulted in a 75.6% reduction in the administrative segregation population from over 1,300 in 2007 to 316 by June 2012. Because Mississippi’s total adult inmate population is 21,982 right now, that means that 1.4% are currently in administrative segregation. The administrative segregation population reduction has not resulted in an increase in serious incidents. The administrative segregation reduction along with the implementation of faith-based and other programs has actually led to 50% fewer violent incidents at the penitentiary.”106
In April 2007, the State of New York agreed to settle a lawsuit challenging the placement of mentally ill prisoners in segregation.107 The settlement requires the state to create “new mental health treatment programs for prisoners with serious mental illness who have SHU and keeplock sentences, and requires the state to provide at least two hours a day of out of cell treatment and programming to all prisoners with serious mental illness remaining in SHU. It requires reviews of disciplinary sentences for inmates with serious mental illness to reduce their sentences and divert them from SHU.”108
New York subsequently enacted legislation that established safeguards for mentally ill prisoners, including mental health and suicide prevention screening for prisoners placed in segregation; diverting prisoners with serious mental illnesses “from segregated confinement, where such confinement could potentially be for a period in excess of thirty days, to a residential mental health treatment unit”; reviews every 14 days for mentally ill prisoners not diverted from segregation; and staff training on how to deal with mentally ill prisoners.109
In Maine, as a result of voluntary action by DOC Commissioner Joseph Ponte, the number of prisoners held in the Maine State Prison’s solitary confinement unit has been reduced by more than half. Ponte, who was appointed in 2011, ordered that prisoners not be placed in solitary for more than 72 hours without his approval. He also asked prison staff to impose informal sanctions rather than segregation when prisoners commit rule infractions, removed prisoners from the supermax unit who did not belong there, stopped violent “cell extractions” of uncooperative or unruly prisoners, and instituted other reforms recommended by a panel of corrections officials who had studied solitary confinement-related issues.110
“We didn’t do the change [in segregation practices] for budget reasons,” said Ponte. “We did it because we thought it was a more effective way to manage these inmates, and the proof’s in the data. The data says that it’s working.”111
In 2007, Indiana agreed to remove seriously mentally ill prisoners from segregation units as part of a settlement agreement in a class-action lawsuit. The court had found that solitary confinement inflicted extreme social isolation and sensory deprivation on mentally ill prisoners; the settlement specified that such prisoners would receive mental health evaluations and treatment, among other provisions.112
Beyond litigation – which has served as the driving force behind changes in solitary confinement practices, given the indifference and inaction by most state lawmakers and prison administrators – prisoners themselves are playing a role in effecting change.
As previously reported in Prison Legal News, a series of peaceful hunger strikes by thousands of California prisoners, including those held in solitary confinement, took place in 2011 and early 2012. Central to the demands of the protesters were improved conditions for prisoners held in segregation, including at the state’s supermax Pelican Bay facility. The hunger striking prisoners’ demands included compliance with the recommendations of the Commission on Safety and Abuse in America’s Prisons relative to ending long-term solitary confinement, plus providing constructive programming and privileges for prisoners in SHU units.113
Largely due to strong outside support, media coverage, and the unity and resolve of the prisoners involved in the protest, California prison officials agreed to make various reforms with respect to SHU conditions and the process for releasing prisoners from segregation units.114
As stated by one California prisoner, “When we are trying to come together for the betterment of our conditions, none of this can be done without mutual respect being established. This is not always an easy job, due to prisoners having different ideologies, religions, political beliefs; and these differences sometimes get in the way. But collective unity and understanding amongst targeted prisoners is growing day by day. We must move with this momentum when it exists, and build unshakable foundations of solidarity.”115
Solitary confinement presents a host of problems, especially for prisoners who are mentally ill – although all prisoners placed in long-term segregation, whether mentally ill or not, are at risk of damaging effects. There are few objective standards and little meaningful due process when placing and holding prisoners in solitary confinement. Conditions in solitary, including the inherent lack of social interaction, can result in physical and mental harm. In some cases, prisoners are placed in segregation not because they are violent or dangerous but rather due to their religious or political beliefs, or because they file complaints or commit minor rule violations. Studies indicate that prisoners held in solitary confinement have higher rates of recidivism following their release from prison, thereby endangering public safety.
Prolonged placement in segregation is constitutionally questionable, and lawsuits have increasingly challenged such practices. As a result of litigation – and voluntarily in some cases – several states have taken steps to reduce the use of solitary confinement in their prison systems without negatively impacting institutional security.
For these reasons, solitary confinement should be curtailed and used only in cases where it is essential to ensure the safety of prison staff or other prisoners, and then only for periods of time necessary to accomplish that goal. There must be regular, meaningful reviews of continued placement in solitary and clear standards for release from segregation units. Further, whenever possible, mentally ill prisoners should not be placed in isolation.
A number of advocacy organizations are working to address issues related to solitary confinement, including Solitary Watch,116 the Segregation Reduction Project of the Vera Institute of Justice,117 the American Friends Service Committee’s STOPMAX campaign,118 the National Religious Campaign Against Torture119 and the Stop Solitary project of the American Civil Liberties Union.120
Through the dedicated work of these organizations, and the efforts of prisoners and their supporters, including those who submitted comments to the Subcommittee hearing, as well as concerned lawmakers such as Senator Durbin, the focus on solitary confinement will hopefully result in much-needed improvements.
As noted by Human Rights Watch, “This Committee’s hearing marks the end of an era of uncritical acceptance of or indifference to the use of solitary confinement in U.S. prisons. It is particularly welcome because of the Committee’s recognition that solitary confinement raises serious human rights concerns.”121
Senator Durbin, who called for the hearing after visiting the Tamms supermax unit in his home state of Illinois, has indicated he will introduce legislation to reform solitary confinement practices. “We can no longer slam the cell door and turn our backs on the impact our policies have on the incarcerated and the safety of our nation,” he stated.122
That, at least, is a promising start.
1 PLN associate editor Alex Friedmann drafted the Human Rights Defense Center’s statement for the Subcommittee hearing on solitary confinement, and the issues addressed in HRDC’s statement are incorporated into this article
2 Richard Kozar, John McCain (Overcoming Adversity) (Chelsea House Pub. 2001)
4 For the witness testimony and member statements presented at the hearing, see: www.hsdl.org/?view&did=713592
6 Three Louisiana prisoners – Robert King, Albert Woodfox and Herman Wallace – who have collectively served 109 years in solitary confinement or segregation units; Woodfox and Wallace remain incarcerated
7 For the written statements submitted to the Subcommittee, see: www.solitarywatch.com/resources/testimony
10 As stated by Alexis de Tocqueville after visiting the Eastern State Penitentiary in Philadelphia in 1831: “Thrown into solitude he reflects. Placed alone in view of his crime, [the prisoner] learns to hate it; and if his soul be not yet surfeited with crime, and thus have lost all taste for anything better, it is in solitude, where remorse will come to assail him.” Gustave Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and its Applicability to France (Edwardsville: Southern Illinois University, 1964) (originally published 1833)
11 Charles Dickens, American Notes for General Circulation (Chapman & Hall, 1842)
24 www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande; see also, www.bostonreview.net/BR35.6/tapley.php
26 Federal prisoner Tommy Silverstein, for example, has been held in solitary confinement since 1983. Louisiana prisoners Herman Wallace and Albert Woodfox, two of the Angola 3, have served 40 years in solitary confinement or segregation units. As of 2011, 78 prisoners at California’s Pelican Bay State Prison had spent over 20 years in segregation (see Endnote no. 94)
29 Jones’El v. Berge, 164 F.Supp.2d 1096, 1098 (W.D. Wis. 2001)
33 Previously, the website for the Tamms supermax prison in Illinois said the facility housed “some of the most litigious inmates in the department’s custody”; see: www.alternet.org/story/94257
38 Prison Legal News, Dec. 2011, p.28, available at: www.prisonlegalnews.org/24080_displayArticle.aspx; Prison Legal News, Sept. 2006, p.37, available at: www.prisonlegalnews.org/10010_displayArticle.aspx
40 Prison Legal News, Dec. 2011, p.28, available at: www.prisonlegalnews.org/24080_displayArticle.aspx
41 McRae v. Johnson, 261 Fed.Appx. 554 (4th Cir. 2008); Smith v. Ozmint, 396 Fed.Appx. 944 (4th Cir. 2010)
42 Woodfox and Wallace were convicted of killing a prison guard; they have served 40 years in segregation units, mainly in solitary confinement at the Louisiana State Penitentiary in Angola, and remain incarcerated. King was convicted of murdering another prisoner; his conviction was later overturned, and he pleaded guilty to conspiracy to commit murder and was released in 2001
44 Wilkerson v. Stalder, U.S.D.C. (M.D. La.), Case No. 3:00-cv-00304-RET-DLD (Docket No. 233), available at: www.angola3.org/uploads/Angola_8th_A_Summary_Judgment_Decision.pdf
46 Prison Legal News, May 2010, p.24, available at
47 Prison Legal News, July 2007, p.1, available at:
48 E.g., see: Bruce A. Arrigo and Jennifer Leslie Bullock, “The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units,” International Journal of Offender Therapy and Comparative Criminology, 52:6, 622-640 (Dec. 2008); Craig Haney, “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency, 49:1, 124-156 (Jan. 2003); Terry Kupers, Ph.d., Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It (Jossey-Bass, 1999); Stuart Grassian, M.D., “Psychopathological Effects of Solitary Confinement,” American Journal of Psychiatry, 140:11, 1450-1454 (Nov. 1983)
49 Prison Legal News, Oct. 2008, p.10, available at:
50 Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988)
51 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). Also from the Madrid ruling, at 1230: “Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances”
52 In re Medley, 134 U.S. 160, 168 (1890)
53 Ruiz v Johnson, 154 F.Supp.2d 975 (S.D. Tex. 2001)
63 Prison Legal News, July 2007, p.1, available at: www.prisonlegalnews.org/18789_displayArticle.aspx
65 See Endnote no. 46
67 Turner v. Safley, 490 U.S. 78, 90 (1987); see also, Sharon Dolovich, “Forms of Deference in Prison Law,” Federal Sentencing Reporter, Vol. 24, No. 4, p.245 (April 2012)
89 Young v. Quinlan, 960 F.2d 351 (3d Cir. 1992), reversed on other grounds
90 Wallace and Woodfox were transferred from Angola in 2008 after serving 36 years in solitary and moved to other maximum-security prisons, where they remain in segregation. See: www.solitarywatch.com/2011/05/17/angola-3-mark-39-years-in-solitary-confinement
91 Wilkerson v. Stalder, U.S.D.C. (M.D. La.), Case No. 3:00-cv-00304-RET-DLD (Docket No. 233), available at: www.angola3.org/uploads/Angola_8th_A_Summary_Judgment_Decision.pdf. The suit, filed in 2000, remains pending as of September 2012
92 Ashker v. Brown, U.S.D.C. (N.D. Cal.), Case No. 4:09-cv-05796-CW
93 www.huffingtonpost.com/2012/05/31/pelican-bay-state-prison-inmates-lawsuit-solitary-confinement-torture_n_1560175.html; see also, www.guardian.co.uk/law/2012/may/31/california-prison-lawsuit-solitary-confinement
96 Bacote v. Federal Bureau of Prisons, U.S.D.C. (D. Col.), Case No. 1:12-cv-01570; see also: www.theatlantic.com/national/archive/2012/06/supermax-the-constitution-and-mentally-ill-prisoners/258587
98 http://blogs.westword.com/latestword/2011/10/thomas_silverstein_supermax_extreme.php; see also: Silverstein v. Federal Bureau of Prisons, U.S.D.C. (D. Col.), Case No. 1:07-cv-02471-PAB-KMT
99 UN Human Rights Committee, Consideration of reports submitted by States parties under Article 40 of the Covenant, concluding observations of the Human Rights Committee, United States of America, UN Doc. CCPR/C/USA/CO/3 (2006); UN Committee Against Torture, Consideration of reports submitted by States parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee Against Torture, United States of America, UN Doc. CAT/C/USA/CO/2 (2006); UN General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment: Note by the Secretary-General, UN Doc. A/66/268 (August 5, 2011)
101 E.g., see Prison Legal News, Feb. 2009, p.14, available at: www.prisonlegalnews.org/20893_displayArticle.aspx (regarding the execution of Jose Medellin and the Vienna Convention on Consular Relations)
103 Prison Legal News, Feb. 2011, p.22, available at:
107 Prison Legal News, June 2007, p.17, available at:
109 N.Y. Correct. Law §§ 137, 401, 401(A)(2008); N.Y. Mental Hyg. Law § 45.07(Z)(2011)
112 Prison Legal News, Nov. 2007, p.24, available at: www.prisonlegalnews.org/19179_displayArticle.aspx
113 Prison Legal News, July 2012, p.32, available at: www.prisonlegalnews.org/24569_displayArticle.aspx
115 Terrance E. White, “Surviving Solitary Confinement,” Prison Health News, Issue 10, Spring 2011, pp.8-9