by Lonnie Burton

A November 2016 report found that 67,000 prisoners were held in restrictive housing throughout the United States – also known as solitary confinement or segregation – in both state and federal facilities. The report was released soon after a group of U.S. senators introduced a bill in September 2016 that would for the first time place legal limitations on the use of solitary confinement in the federal prison system.

The bill, the Solitary Confinement Reform Act (S. 3432), was co-sponsored by U.S. Senators Dick Durbin, Christopher Coons, Patrick Leahy, Cory Booker and Al Franken. It would affect some 10,000 prisoners held in segregation in federal facilities, representing about six percent of all federal prisoners. The bill has remained stalled in the Senate Judiciary Committee since its introduction.

Meanwhile, a trend toward reducing the use of solitary in state prisons was one of the findings reported in “Aiming to Reduce Time-in-Cell,” a joint report published by the Arthur Liman Public Interest Program at Yale Law School and the Association of State Correctional Administrators (ASCA). The study collected data in the fall of 2015 from 48 jurisdictions, including 45 states, the federal Bureau of Prisons (BOP), the District of Columbia and the Virgin Islands. It included prisoners housed in “double-cell solitary,” where two people are placed in the same segregation cell.

Were it to become law, the Solitary Confinement Reform Act would limit the BOP’s use of segregation to “the briefest term” under “the least restrictive conditions practicable.” Prisoners in isolation would have at least four hours outside their cells each day, with “meaningful programming opportunities” and the ability to interact with others – prisoners, visitors and clergy members – “as much as practicable.”

The bill would also create a class of prisoners exempt from solitary confinement: minors, those with a serious mental illness, pregnant and recently pregnant women, prisoners with physical disabilities, and LGBT prisoners isolated for no reason other than their LGBT status. The BOP would also have to conduct mental health evaluations within the first six hours of placement in solitary confinement and every 14 days thereafter.

Further, the legislation would require BOP officials to create new procedures for transitions from solitary confinement – when prisoners are returned to the general prison population or released to the community.

In July 2015, President Obama directed then-Attorney General Loretta Lynch to conduct a review of the use of solitary confinement in federal prisons. The U.S. Department of Justice subsequently released a set of “Guiding Principles” that instructed the BOP to eliminate the use of solitary for “low level” disciplinary offenses and to ensure prisoners are housed in the “least restrictive setting necessary.”

The American Correctional Association adopted performance-based standards for restrictive housing in August 2016. At the same time, bills were pending in several states, including Rhode Island, Illinois and Massachusetts, that would limit the use of solitary to no more than 15 consecutive days and a maximum of 20 days during any 60-day period. A similar bill passed the New Jersey legislature but was vetoed by Governor Chris Christie in December 2016.

Despite these efforts, the Yale/ASCA report found that more than 80 percent of prisoners held in segregation had been there for a month or longer, and a third had been there for a year or more. Strikingly, the study also found that almost 6,000 prisoners had been in solitary for over three years, with half of those spending six years or more in isolation.

The United Nations Commission on Crime Prevention and Criminal Justice calls solitary confinement lasting longer than 15 consecutive days a form of torture, which its member nations, including the United States, should prohibit.

While the U.S. far exceeds international standards for the length of time spent in segregation, the total number of prisoners in restricted housing has decreased. The Yale/ASCA study found the solitary population in 2015 was almost the same compared to 2014, a year in which the researchers surveyed only 34 jurisdictions.

“The official position of so many jurisdictions now is that they want less solitary,” said Professor Judith Resnik, co-author of the report. “The people closest to running prisons are telling us that this is not a wise thing to do for the safety and well-being of prisoners, or the safety of the staff and the communities to which they’ll return.”

In Alaska, the state Department of Corrections (DOC) and the ACLU are cooperating on new solitary confinement guidelines. The DOC’s Director of Prisons, Bruce Busby, acknowledged that segregation is “known to be psychologically detrimental to those who are in there for any length of time” – but said it is sometimes the only way to ensure a prisoner’s safety from threats posed by other prisoners.

Making prisons safer is one of the main goals driving solitary confinement reform efforts, according to Dan Pacholke, a researcher with New York University who was invited to Alaska by the DOC and the ACLU.

“You can reduce segregation rates and create safer environments both for staff and offenders at the same time,” Pacholke said, pointing to his own accomplishments over 33 years in Washington state’s prison system.

“The problem is it’s really easy, and I’m going to call it lazy, right?” said Busby. “An inmate does a bad thing and we just throw them in seg. It’s easy for us. It’s hard on the individual.”

Since solitary confinement reforms began in 2015, he added, the Alaska DOC has reduced the share of its prison population held in solitary from 10 percent to 8.5 percent. Another outside expert brought in to help, Sandy Mullins – also from New York University – called segregation a tool, but one that actually disrupts prisoner behavior. The important thing to remember, she noted, is that most prisoners are eventually released back into society.

“You want to do no harm,” Mullins said, adding that “while prison isn’t inherently therapeutic, it can definitely be more humane.”

Over 30 states are trying to reduce their use of segregation. Prisoner hunger strikes, lawsuits, activists and legislation have all shone a spotlight on the deleterious mental health consequences of solitary confinement, along with the risks they pose after a prisoner is released – either from solitary to the general prison population or directly to local communities. According to Resnik – the co-author of the Yale/ASCA report – it is these concerns that have led to a “major shift” in correctional thinking over the past six years.

“People running prison systems mostly looked at solitary as the answer to a problem, and now I think increasingly people look at solitary as a problem to be solved,” she observed.

Leann Bertsch was appointed director of North Dakota’s Department of Corrections and Rehabilitation (DOCR) in 2005. To reduce the prison system’s solitary population, she and other DOCR officials developed a list of what behaviors could land a prisoner in segregation – violent assault or battery on guards or another prisoner, sexual assault, arson, trafficking, rioting, attempting to escape, taking hostages or homicide.

There were 87 North Dakota prisoners in solitary confinement when the changes took effect. About 50 had not done anything on the list, so they were released into the general prison population. Today, Bertsch said, the state has just 15 prisoners in segregation.

Many prisons no longer allow juveniles or pregnant women to be placed in solitary. In New York and Colorado, offenders with serious mental health conditions cannot be held in long-term segregation except under “exigent circumstances.”

Colorado no longer allows prisoners to spend more than twelve consecutive months in isolation, according to Rick Raemisch, executive director of the state’s DOC. Before there was a time limit, he said some prisoners spent decades in solitary.

“For me, it was one of those ‘what the hell are we doing?’ moments,” Raemisch stated. “When did it become okay for someone to be locked in a cell by themselves that’s 13 by 7 [feet] for 23 hours a day for years?”

Raemisch was appointed after the previous Colorado DOC director, Tom Clements, was murdered by a prisoner who had been released directly from solitary into society. Raemisch spent a night in a segregation cell himself and found it disturbing. [See: PLN, July 2014, pp.1, 8]. Since then, he said Colorado prisoners released from segregation spend time in a special facility the state repurposed in 2014. There, a ”step-down” program allows prisoners outside their cells for at least four hours daily, eventually expanding that time to six hours while they engage in social and recreational activities and programming.

Colorado also has a program underway to divert prisoners from solitary into 10 hours a week spent in therapy and another 10 hours involved in other out-of-cell activities. From a population of 1,500 prisoners in solitary confinement six years ago – 7 percent of the state’s prison population – Raemisch said the current total has fallen to between 130 and 170.

Breaking down the demographics of prisoners held in segregation, Resnik and the other authors of the Yale/ASCA study found that non-white prisoners were slightly overrepresented when compared to the racial composition of the overall prison population. The disparity was larger in some states, like California, where Hispanic males make up 86 percent of prisoners in solitary but only 42 percent of the male prison population.

The study also found that about 10% of male prisoners in segregation have some type of identified mental health condition. Those numbers vary widely from state to state, though. Texas, with the largest prison population in the U.S., says it has no mentally ill prisoners in solitary confinement. Florida, on the other hand, leads the nation with 1,283 prisoners in solitary who have mental health problems, representing 12.3% of the segregated population. Louisiana has the largest percentage of mentally ill prisoners in solitary confinement, with 612 prisoners (38.7% of the solitary population).

In another example of the trend to keep the mentally ill out of segregation, Pennsylvania has pursued changes to its prison policies. To lower the number of mentally ill prisoners in solitary, it has retrained guards to better deal with mental health issues. Along with Pennsylvania and Colorado, Vermont, Minnesota and New York have developed new rules governing the placement of prisoners in solitary confinement – the latter due to litigation. [See: PLN, Nov. 2016, p.40].

Prison reform advocates agree that DOC officials need to focus on how long prisoners are kept in solitary. By definition, they say, most stays in administrative segregation (ad-seg) have no fixed end date. As a result, prisoners are routinely held in ad-seg for years.

“If they had no mental health issues before they entered solitary,” wrote Mary Buser, former assistant chief of mental health at New York City’s Rikers Island jail complex, “they do now.”

David Menschel, a prominent criminal justice reform advocate and executive producer of the film “Solitary,” called the Yale/ASCA report a victory for efforts to reduce the use of segregation. He noted that just a few years ago it was impossible to get state corrections departments to turn over data – in fact, they couldn’t even agree on a definition for “solitary confinement.” But citing Colorado’s recent success – reducing the use of segregation by 90 percent over the last five years – Menschel said that if the Colorado DOC can do it, “then every state can do it.” 

Sources: “Aiming to Reduce Time-in-Cell,” by the Arthur Liman Program at Yale Law School and ASCA (Nov. 2016); NPR; PBS; Alaska Pubic Radio; The Marshall Project; www.crimereport.org; www.solitarywatch.com