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Reassessing Solitary Confinement II PLS of NY CongressionalTestimony to Congressional Testimony 2014

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Prisoners’ Legal Services of New York
Central Office
41 State Street, M112, Albany, New York 12207
518-445-6050 518-445-6053 (facsimile)

Karen Murtagh, Executive Director

Hearing Before the Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights
February 25, 2014
Prisoners’ Legal Services of New York (PLS) would like to thank Senator Durbin, Chair of
the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, as well as
other committee members, for holding this follow-up Congressional hearing on solitary confinement
and for the opportunity to submit written testimony on this critically important civil and human
rights issue. The continued use of solitary confinement in the United States prisons, jails and
detention centers, despite the proven harm it causes, demands serious investigation and we applaud
this committee’s foresight and courage in continuing a public discussion on this topic.
PLS is a nonprofit legal services organization that was established in 1976 in response to the
Attica uprising, a three-day siege that culminated on September 13, 1971, when then-Governor
Nelson Rockefeller ordered state law enforcement agents to forcibly retake control of the Attica
prison.1 The events at Attica forced public attention on the inhumane treatment and living conditions
of New York State prisoners and the creation of PLS, as a result, many of those conditions improved.
We learned a great deal from “Attica,” but with respect to the issue of prolonged solitary
confinement, we have lost sight of the most important lesson of all: the need for our criminal justice
system to continually assess the effects of the conditions of confinement on prisoners and to consider
those effects in light of our evolving standards of decency.
PLS provides civil legal services to indigent prisoners in New York State correctional
facilities on issues associated with their conditions of confinement. As a state-wide entity, PLS
listens and responds to the concerns and grievances of all those incarcerated in New York State

That day has come to be known as the day when “the bloodiest prison confrontation in U.S. history” occurred. As a
result of the uprising, a special state Commission (the McKay Commission) was created to investigate and report on the
incident. After dozens of hearings and thousands of pages of testimony, the McKay Commission issued a report
chastising New York State prison authorities for: failing to provide adequate programming and education for prisoners;
the lack of any procedures for prisoners to air or resolve their grievances; poor conditions in the prisons; and the overall
mistreatment of prisoners.

prisons. One might think we have come a long way since Attica, but a review of the more than
10,000 letters PLS receives annually reveals how much there is left to do. PLS responds to every
single request we receive. When a prisoner writes to us about a disciplinary disposition that has
resulted in a lengthy sentence in solitary confinement or loss of good time, we investigate. If we find
a violation of due process or regulatory protections, we file an appeal
In testimony PLS submitted at this committee’s initial hearing on solitary confinement in
June 2012, we set forth the sordid history of the use of solitary confinement and encouraged this
committee to review that history in analyzing how we, as a nation, should address the issue.2 We
asserted then that the history regarding the use of solitary confinement, together with the drum-beat
of constant reports from around the world about the effects of prolonged isolation on individual
prisoners, required us to examine whether our evolving standards of decency have brought us to a
place where we can no longer tolerate such punishment.
In the almost two years since we submitted testimony on this issue, the long-time concerns of
corrections experts, medical and psychiatric expert, academic and religious scholars, and advocates
regarding the harmful effects of solitary confinement have continued to be reinforced and
legitimized.3 In addition, there have been extensive investigations done and reports written,
concerning the use of solitary confinement.4 Finally, prominent organizations that had yet to weigh in
on the issue have now done so.5


See Congressional Testimony of Prisoners’ Legal Services of New York, June 19, 2012.
See, for example, Bureau of Prisons: Improvements Needed in Bureau of Prisons Monitoring and Evaluation of
Impact of Segregated Housing, May 1, 2013, available at:; Berger, et.
al., Commentary: Toward an Improved Understanding of Administrative Segregation, Psychiatry Law, vol. 41 no. 1,
pp.61-64 (Response to O’Keefe, A Longitudinal Study of Administrative Segregation, et al., J. Am. Acad. Psychiatry
Law, vol. 41 no. 1, pp. 49-60) Mar. 1, 2013;American Academy of Child and Adolescent Psychiatry, Statement
Against Youth in Solitary, April 2012; American Psychiatric Association, APA Position Statement on Segregation of
Prisoners with Mental Illness (2012); American Public Health Association, Addressing Solitary Confinement as a
Public Health Issue (2013, Full Policy Statement Available in Early 2014) ;220 th General Assembly of the
Presbyterian Church (USA), Commissioner’s Resolution on Prolonged Solitary Confinement in US Prisons, 2012;
The National Catholic Review, We Are One Body, America July 15 – 22, 2013, available at:; New York State Council of Churches: Resolution Opposing the
Use of Prolonged Solitary Confinement in the Correctional Facilities of New York State and New York City, Sept.
2012; ACLU, Stop Solitary Campaign available at: For a complete list of
the most up-to-date comments on solitary confinement see: ALCU, Solitary Confinement Resource Materials.
available at:
See, for example, New York Civil Liberties Union, “Boxed In – The True Cost of Extreme Isolation in New York’s
Prisons” p. 8. (Oct. 3, 2012) available at:
See, for example, New York State Bar Association Committee on Civil Rights Report to the House of Delegates,
Solitary Confinement in New York State, Presented to and Approved by the NYS Bar Association House of


We now have even more proof that individuals subjected to solitary confinement are more
likely to engage in self-harm.6 We have more proof that individuals subjected to long term isolation
become more, rather than less, violent.7 We have witnessed individuals who have spent their entire
professional lives working in the field of corrections coming to the conclusion that solitary
confinement does not rehabilitate.8 We have learned that, in most cases, severe isolation actually
increases, rather than decreases recidivism and thus threatens public safety.9 We have learned that
best practices do not support the use of solitary confinement and that evidence-based policies and
treatment practices are what should govern our decision-making in the criminal justice sphere.10
Finally, with respect to the use of solitary confinement in New York State, we have learned more
about the racial disparities and arbitrariness in the imposition of solitary confinement penalties.11
Based on what we have learned, we assert that we have now arrived at the time and place
where our evolving standards of decency will no longer allow us to tolerate the continued use of
long-term solitary confinement.
Solitary confinement in New York State in 2014 is still confinement 23 hours a day in a cell
the size of an elevator for single cells and a parking space for double cells, typically with no
commissary, no phone, no package or privileges and no visits.12 Although given different labels such
as administrative segregation, voluntary or involuntary protective custody or disciplinary
confinement, the conditions of the confinement are very similar. For most in solitary confinement
Delegates, January 25, 2013, p. 1 & 6, available at:
Associated Press, Inmates in Solitary Confinement 7 Times More Likely to Harm Themselves: Study, Feb. 13, 2014,
available at: citing American Journal of Public Health peer-review study of New York City jail inmates
confined to solitary confinement.
Erica Goode, Rethinking Solitary confinement, N.Y TIMES, Mar. 11, 2012, at A1. This article is available online
under the title, “Prisons Rethink Isolation, Saving Money lives and Sanity,” available at
George H. Bohlinger, III, The Cruelty of Solitary Confinement, October 28, 2013, available at:
Lovell & Johnson, “Felony and Violent Recidivism Amount Supermax Prison Inmates in Washington State,”
available at:
American Public Health Association Policy Statement 201310 Addressing Solitary Confinement as a Public Health
Issue, Nov. 5, 2013, available at:
NYCLU “Boxed In” supra note 4, pp. 23-25.
New York State Bar Association Committee on Civil Rights Report to the House of Delegates, Solitary
Confinement in New York State, Presented to and Approved by the NYS Bar Association House of Delegates,
January 25, 2013, p. 1 & 6, available at: See also
NYCLU, “Boxed In” supra note 4, p.5 & 35.


there is little to no human contact, often for years at a time. The one hour of exercise that is allotted
to those confined to solitary is done, for most, in a small cage attached to the back of the cell. As
noted in our 2012 testimony, in New York State there is still no limit to the length of time a prisoner
can be placed in solitary confinement.13
Over the past 30 years there has been a steady increase in the length of solitary confinement
time that is imposed on prisoners in New York State for alleged misbehavior. Because of this,
prisoners, who in the 1980’s, were given 30 days in solitary confinement, are now often given years
of solitary confinement time without any regard to whether such prolonged isolation will have any
positive effect on prison security or the individual’s future conduct.
In 2012, with a population of approximately 56,700, over 4,300 prisoners, or 7.6% of the
prison population, were held in solitary confinement. In 2014 those numbers have decreased
somewhat with a prison population of 53,959 and little over 7% or the population or, 3,804 currently
being held in solitary confinement.
When citizens of the United States are facing a loss of liberty in the criminal context, they are
provided, not only significant due process rights, but legal counsel to protect those rights. However,
once a person is convicted and sent to prison, at least in New York State, those protections disappear.
If a prisoner is the subject of an administrative segregation, protective custody or disciplinary
hearing, his due process rights are minimal and he is not entitled to counsel either at the hearing or
on appeal, even though he is facing a loss of liberty equal to, or arguably greater than that which we,
as Americans, so highly protect on the outside.
A. Due Process & Regulatory Violations Result in Illegally Imposed Solitary Confinement
In 2013 PLS received 1,236 requests for assistance from prisoners sentenced to disciplinary
solitary confinement, hundreds of who had been sentenced to years in isolation. PLS does not have
the staff to investigate all of these requests but we do at least respond to every request. For the cases
we reject, we either advise prisoners that they do not have a claim or we provide counsel and advice
as to how they can proceed on their own. PLS provided counsel and advice in 857 of the 1,236
requests we received and accepted 220 cases for investigation. Upon full investigation, which
involves reviewing all of the documents associated with the disciplinary hearing, listening to the tape
of the hearing and often interviewing the accused and his witnesses, PLS found that 111 cases
warranted further administrative advocacy; of those 111 cases, PLS prevailed, either administratively
or in the courts, in 75 (68%) of them. The result was that over 89 years of solitary confinement time
was expunged from prisoners’ records and prisoners were, in turn, released from solitary

Congressional Testimony of PLS supra note 2 at p. 2.


confinement and allowed to participate in the rehabilitative and educational programs that have been
proven crucial to successful reentry.
While solitary confinement itself causes grave concerns, these statistics heighten those
concerns by demonstrating that there are individuals being wrongfully held in solitary confinement as
a result of due process violations. While PLS does what it can to accept as many cases as possible,
there is a huge unmet need due to PLS’ limited resources. As a result, it is more likely than not that
there are thousands of New Yorkers currently wrongfully being held in solitary confinement as a
result of due process violations.
B. Sentencing at Initial Hearings and Modifications on Appeal Are Often Arbitrary and
Although we welcome the administrative modifications or reversals of disciplinary hearings,
they are insufficient to remedy the irreparable harm that has already occurred as a result of the
solitary confinement time – often more than three months – that prisoners have been forced to serve
prior to the modification or reversal. Moreover, the length of the penalties and the arbitrariness with
which they are imposed and, in many instances, modified is cause for serious concern.
To illustrate the arbitrary and capricious nature of the disciplinary process in New York State,
attached, as Exhibit A, is a chart showing the results of 18 disciplinary cases PLS handled this past
year. As you can see, the imposed penalties are extraordinarily long, ranging from six months for
“smuggling” – our client had a piece of candy in his pocket – to five years for participating in a
disturbance in a prison yard and striking another prisoner and an officer. Equally as disturbing,
however, is the arbitrariness and randomness of penalties. The chart shows an instance where three
prisoners were given identical charges, but two of the prisoners were given three years in solitary
while the third was given one. The chart also shows that a prisoner found in possession of an amount
of marijuana that was so small it could not be weighed, and some gang materials, received the same
one year penalty given to the prisoner who was involved in a disturbance in the yard throwing
punches at an officer.
However, it is the bizarre nature of the modifications that occur during the administrative
review process that really highlight the randomness of the imposition of disciplinary penalties in
New York State. When it came to reviewing the penalties for the three prisoners who were accused
of being involved in the disturbance in the yard, the prison administration modified the penalties for
the two prisoners who were given three years in solitary by reducing one penalty to two years and the
other to 18 months, but then refused to modify the one year penalty for the third prisoner. The result


was that three prisoners who were accused of engaging in the exact same misbehavior received
solitary confinement times of two years, one year and six months, and one year, respectively.
Moreover, we should not lose site of the randomness of the initial penalties that are imposed.
Where is the rationale for issuing a punishment of five years in solitary confinement for being
involved in a yard disturbance and then cutting that penalty in half on appeal? Where did the five
years come from? Where did the modified two and ½ year penalty come from? What is there to
prevent a penalty of 20 years and then a reduction to 10? There is no rhyme or reason to the
imposition of such penalties. There is no rational purpose being served, but there is great harm being
A poignant example of this is set forth in the administrative appeal (attached as Exhibit B) by
a PLS attorney for the client identified as J.T. in Exhibit A. As the appeal demonstrates, the client
was deteriorating in solitary confinement. For the first four years of his incarceration, the client had
few disciplinary problems and had never been sentenced to solitary confinement. However, in 2012
he was found guilty of violent conduct, fighting, weapon possession, creating a disturbance and
refusing a direct order and was given a penalty of 13 months in solitary. From that point on, his life
seemed to spiral out of control. While serving the 13 months in solitary he accumulated an additional
28 months of solitary time resulting in his maximum release date being six months after his solitary
confinement sentence expired. Although we presented clear and cogent arguments on the issue,
citing not only the science surrounding the long-term effects of solitary confinement on one’s mental
health but also the public safety issue involved in releasing an individual from solitary directly into
the community, our pleas were ignored.
C. Prisoners Suffering from Mental Illness are Still Being Subjected to Solitary
Pursuant to extensive litigation and the passage of what is referred to as the 2008 SHU
Exclusion Law, there have been significant improvements in the area of the treatment of prisoners
suffering from mental illness in New York State.14 The 2008 SHU Exclusion Law prohibits the
confinement of seriously mentally ill prisoners in solitary confinement. However, for some clients,

In 2002, PLS, together with PRP, Disabilities Advocates, Inc. (DAI) and the law firm of Davis Polk, filed the case of
Disability Advocates, Inc. v. New York State Office of Mental Health, S.D.N.Y. 02-CV-4002 (Lynch, J.), on behalf of
prisoners with mental illness in New York. The lawsuit alleged that such prisoners are denied adequate mental health
care, harshly punished for the symptoms of their mental illnesses and frequently confined under conditions amounting to
cruel and unusual punishment. As a result, the suit charged, the mental health of mentally ill prisoners routinely
deteriorates, sometimes to the point that the prisoners engage in self-mutilation or suicide. A private settlement agreement
was reached in this case that included, inter alia, using diagnostic criteria to define serious mental illness (SMI), adding
hundreds of treatment beds, offering the possibility of time cuts to SMI prisoners in long-term SHU or keeplock, and
placing limits on the types of misconduct for which SMI prisoners may be punished.


the SHU Exclusion Law has become meaningless because, despite the fact that they were diagnosed
with a serious mental illness when they came into prison, they were re-diagnosed while in prison and
thus no longer benefit from the Exclusion Law. For others, although they suffer from mental illness,
because their condition does not fall within the definition of “serious mental illness,” they are not
exempt from solitary confinement.
Below are examples of four cases that demonstrate the irrational, arbitrary and very arguably
unconstitutional way in which solitary confinement sentences are presently being imposed on
prisoners in New York State who suffer from mental illness or intellectual capacity issues:
Case No. 1
Our client received six months solitary confinement for fighting, creating a disturbance,
assault on staff, unhygienic act and refusing a direct order. He failed to file a timely appeal
due to extremely limited literacy skills. During our interview with him we learned that he
was in the Special Needs Unit (SNU)15 prior to receiving the misbehavior report at issue. We
also learned that he was scheduled to be released from prison on February 14, 2014.
Due to our client’s limited literacy and intellectual skills, we requested permission to file a
late appeal, but our request was denied. We then sought a discretionary modification of the
penalty asking for time served, noting that our client had already served nearly four months
in solitary and would otherwise be forced to “max out” directly from solitary into the
community. We stressed the benefit to both our client and the community of allowing our
client to transition back to the SNU prior to release, rather than face release to the streets
immediately following six months in solitary. Our request was denied. Our client maxed out
on 2/14/14 as scheduled.
Case No. 2
Our client had multiple suicide attempts and a former diagnosis of schizophrenia but had
been re-diagnosed to mood disorder NOS by DOCCS. He had been placed in solitary
confinement three times over the past year. His letters when he was in solitary were deeply
disturbing and often included suicidal ideation.
Case No. 3
Our client, who read at a second grade level and had a history of mental illness, was accused

SNU provides “programs and housing areas for offenders who have intellectual and adaptive behavioral deficits
and, as a result, may have significant difficulty adjusting to the prison environment. These units are therapeutic
communities that provide short and long-term habilitative and rehabilitative services to offenders who have been
identified as developmentally disabled or who possess significant intellectual and adaptive behavior deficits. These
offenders generally present with an IQ below 70 and have adaptive behavior deficits that impair independent
functioning in the general prison population. See: Department of Corrections and Community Supervision Report
Pursuant to Chapters 130 and 132 of the Laws of 2010, October 6, 2011, available at:


of throwing a bar of soap at a corrections officer. He was found guilty at his hearing and
sentenced to eight months in solitary. Despite the fact that our client was clearly not capable
of communicating in English, the hearing was conducted in English and he was not offered a
translator. Our client struggled to understand basic concepts throughout the hearing and the
hearing officer was not able to understand many of our client’s own words. Furthermore,
although our client did not have a current mental health diagnosis at the time of the hearing,
he has a long history of mental health problems. We submitted a supplemental appeal and the
hearing was ultimately reversed, but not before our client served over five months in solitary.
Case No. 4
Our client was charged with smuggling, unhygienic act, refusing a direct order, weapon
possession, altered item and two counts each of violent conduct and assault on staff. He was
being transferred to the mental health unit when this incident took place. On appeal, his six
year solitary confinement sentence resulted in a reduction to five years.

Juveniles and Other Vulnerable Populations, Including Sensorially Disabled and the
Elderly, Are Not Exempt From Solitary Confinement

In our June 2012 testimony we set forth the position of the U.S. Supreme Court regarding the
limited culpability of juveniles as well as the extensive scientific research that suggests that juveniles
should not be held culpable for their conduct to the same degree that adults are because juveniles
lack fully developed frontal lobes required for impulse control and because their brain structure is
fundamentally and significantly different from that of adults.16
On February 19, 2014, the New York Civil Liberties Union and New York State DOCCS
announced an historic settlement regarding the use of solitary confinement that, inter alia, will have
some impact on 16 and 17 year old juveniles.17 The agreement provides for the implementation of
new comprehensive and prospective guidelines concerning solitary confinement penalties for all
prisoners. However, those guidelines will still permit the imposition of solitary confinement
penalties of months and, in many cases, years – penalties that significantly exceed the 15 day
maximum suggested by the United Nations Special Rapporteur on torture, Juan E. Méndez.18 The
agreement also stays the pending litigation for two years while experts analyze the use of solitary
confinement in New York State.


See Congressional Testimony of Prisoners’ Legal Services of New York, pp. 5-7, June 19, 2012.
Peoples, et. al v. Fischer, et. al, Stipulation For a State With Conditions, Docket Number 11-CV-2694, S.D.N.Y.
(Scheindlin, J.) Feb. 19, 2014 available at:
Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, Interim Rep. of the
Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or
punishment, U.N. Doc. A/66/268 (Aug. 5, 2011) (by Juan Mendez), available at


While we are pleased that New York State is making steps toward addressing this issue and
we commend NYCLU and NYS DOCCS on their efforts, there is still much to be done. The relief in
the agreement, which will not be implemented for at least nine months, will allow for juveniles to be
let out of their cells for up to five hours per day during the week for exercise, education and
programming. But juveniles will still be held in solitary throughout the weekends and they will still
be limited to only one hour of exercise per day, an amount we know is insufficient for their prospects
of healthy development. In addition, they will still be subject to the imposition of years of 19 to 23
hour a day confinement which typically carries with it loss of packages, commissary and phone
privileges and even sometimes visitation privileges. Such harsh penalties have been proven to cause
serious medical and psychological harm and significantly interfere with a juvenile’s ability to stay
connected with his/her family – a connection that has been found to be instrumental to rehabilitation
and successful reintegration into society upon release.
The above referenced settlement agreement also does not provide any immediate relief for
youth between 18 and 21, sensorially disabled prisoners or elderly prisoners – all of whom continue
to be harmed when subjected to long-term solitary confinement.
In our June 2012 testimony we wrote at length about how our evolving standards of decency
were bringing us to a place where we could no longer tolerate the use of solitary confinement in our
country.19 Since that time, the New York State Bar House of Delegates has adopted a resolution
calling upon all governmental officials charged with the operation of prisons and jails throughout
New York State to profoundly restrict the use of long-term solitary confinement and urging that the
imposition of long-term solitary confinement on persons in custody beyond 15 days be proscribed.20
There has been legislation introduced in at least 12 states to reduce or eliminate the use of solitary
confinement.21 There has also been an extensive investigation into the use and abuse of solitary
confinement in New York.22 In light of this, we urge this committee to recognize that our evolving
standards of decency can no longer tolerate the wide-spread use of long-term solitary confinement in
our prisons and jails.

See Congressional Testimony of Prisoners’ Legal Services of New York, pp. 7-10, June 19, 2012.
New York State Bar Association Committee on Civil Rights Report to the House of Delegates, Solitary
Confinement in New York State, supra note 12, p. 2.
America Civil Liberties Union, Solitary Confinement Resource Materials, pp. 14-15,available at:
NYCLU “Boxed In” supra note 4.


Our evolving standards of decency mandate Congressional reform in the area of solitary
confinement. That reform should do the following:
1. Fundamentally transform how our public institutions respond to incarcerated people's needs
and alleged behaviors/threats, from inhumane and counterproductive isolation and
deprivation to alternative therapeutic and rehabilitative units that provide additional support,
programs, and treatment together with meaningful out-of-cell time and human interaction;
2. Drastically restrict the criteria that can result in separation from the general prison population
to the most egregious conduct;
3. End long term isolation beyond 15 days as called for by the UN Special Rapporteur;
4. Ban any length of time of solitary confinement for people who are more vulnerable either to
the effects of isolation itself or additional abuses while in isolation, including young people,
elderly people, people with physical disabilities, people with mental health or addiction
needs, pregnant women, and members of the LGBTI community;
5. Better equip and train staff to effectively work with incarcerated persons;
6. Make the processes resulting in solitary fairer, including legal representation at hearings and
upon appeal; and
7. Make the entire process involving the implementation of solitary confinement or separation
more transparent, including mandatory reporting requirements with more accountability
through independent outside oversight.

Dated: February 25, 2014

Karen L. Murtagh, Esq.
Prisoners’ Legal Services, Executive Director
41 State Street, Suite #M112
Albany, NY 12207
(518) 445-6050


EXHIBIT A - Congressional Testimony of PLS - February 2014
J. B.
T. S.
G. J.
I. S.
L. S.
C. W.
J. J.
S. A.
L. R.
D. L.
T. A.
K. S.
K. A.

J. S.
W. W.

A. L.
J. T.

Disturbance in yard. Group of 25 inmates allegedly
throwing closed fist punches at officers.
Disturbance - same as above
Disturbance - same as above
Disturbance - same as above
Disturbance – same as above but accused
observed striking inmate and an officer
Disturbance – same as above but observed striking
an officer
Disturbance – same as above but allegedly started
the riot
Disturbance – same as above but allegedly ran
from officer and then assaulted him
Yard Disturbance - no specific misconduct alleged
Disciplined for smuggling. Had piece of candy in
his pocket
Possession of a razor, tattoo gun, ink and needles
and a broom handle
Possession of a weapon, assault on staff, violent
conduct and interference
Contraband, marijuana (so little it couldn’t be
weighed), gang materials
Inmate in RMHU at time of incident. Charged with
violent conduct, assault on staff creating a
disturbance and altered item in connection with a
cell extraction due to threats of self harm. Was
placed in OBS cell after incident
Assault on another inmate
Possession of 2 match heads, two match strikers
(from match books) a piece of electrical tape and a
gang related note written by another inmate
Unsigned note attributed to AL which threatened
and harassed a social worker.
Appears to suffer from mental illness and was
deteriorating in SHU. Requested recognition of
this and reversal of recent 2 hearings. Denied

Solitary Confinement/Loss of Good Time in months




No mod.






























37 (8 hearings)