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Prisoners' Rights Project
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Blaine (Fin) V. Fogg
President
Steven Banks
Attorney–in–Chief
Adriene L. Holder
Attorney–in–Charge
Civil Practice
John Boston
Project Director
Prisoners' Rights Project

Testimony of
The Legal Aid Society, Prisoners’ Rights Project

February 25, 2014
Before the Senate Judiciary Subcommittee on the Constitution,
Civil Rights, and Human Rights:
Reassessing Solitary Confinement II:
The Human Rights, Fiscal, and Public Safety Consequences

Testimony of
The Legal Aid Society, Prisoners’ Rights Project
February 25, 2014

Before the Senate Judiciary Subcommittee on the Constitution,
Civil Rights, and Human Rights:
Reassessing Solitary Confinement II:
The Human Rights, Fiscal, and Public Safety Consequences
To the Senate Committee:
The Legal Aid Society thanks Chairman Durbin and Members of the Subcommittee for
the opportunity to submit this written testimony on the issue of solitary confinement.
My name is Sarah Kerr. I am a staff attorney at the Prisoners’ Rights Project (“PRP”) of
the Legal Aid Society. PRP has been a leading advocate for constitutional and humane
conditions of confinement for individuals incarcerated in the New York City and New York
State correctional systems since it was established by the Legal Aid Society in 1971. The
Prisoners’ Rights Project participated in several federal lawsuits that address the inappropriate
use of solitary confinement of individuals with mental illness including the state-wide lawsuit,
Disability Advocates, Inc. v. New York State Office of Mental Health, 02 CIV 4002 (S.D.N.Y.)
(“DAI v. OMH”).1
I offer this testimony based on ongoing contact with and advocacy on behalf of
individuals incarcerated in New York City jails and New York State prisons, knowledge of the
New York State Department of Corrections and Community Supervision (DOCCS), the New
York State Office of Mental Health (OMH), the New York City Department of Correction (NYC
DOC) and the New York City Department of Health and Mental Hygiene (NYC DOHMH).
In June 2012, we submitted testimony to this Subcommittee that focused on the
significant progress made in providing for mental health treatment in the New York State prisons
pursuant to the DAI v. OMH settlement agreement, including limiting the placement of
individuals with serious mental illness in solitary confinement settings, taking mental illness into
account during disciplinary hearings, and creating and expanding residential mental health
treatment settings in the prisons. We also addressed the importance of the Special Housing Unit
(SHU) Exclusion Law passed by the New York State Legislature. 2 In that testimony we
described the history of advances made due to litigation and legislation in New York. We also
reported that despite those improvements, we continue to witness ongoing problems with
treatment and discipline of individuals with mental illness including under-diagnosis, failure to
identify and designate individuals with serious mental illness, and overly punitive disciplinary
1

Disability Advocates, Inc. v. New York State Office of Mental Health, No. 1:02-cv-04002 (S.D.N.Y. 2007) was
brought by Disability Advocates, Inc., the Prisoners’ Rights Project of the Legal Aid Society, Prisoners’ Legal
Services of New York, and the law firm of Davis Polk & Wardwell.

2

The SHU Exclusion Law provisions are codified as amendments to N.Y. Mental Hyg. Law § 45 (McKinney 2011)
and N.Y. Correct. Law §§ 2, 137.6, 401, 401-a (McKinney 2011).

1

sanctions imposed against many individuals with mental illness. Our 2012 testimony provided
information on improvements and recommendations for making further advances that could
build on our own efforts.3
This testimony will focus on new developments and reports out of New York which
reflect the urgency of continued action to implement meaningful reform. Since 2012, progress
remains slow despite the fact that evidence regarding the harmful effects of solitary confinement
in New York continues to mount.4 We urge the Subcommittee to support reform efforts in New
York and across the country. Federal support for the collection and dissemination of data on the
use of solitary confinement (in all its forms – punitive/disciplinary segregation, administrative
segregation, protective custody, etc.) will provide essential information on the harmful lengths of
stays in solitary and their human and fiscal costs; data collection on alternatives to solitary
confinement will ensure that valid evidence-based rehabilitation programs are identified and may
then be replicated; and outcome data from correction policies that limit the use of solitary
confinement will assist in encouraging rule changes that will create humane, safe and costeffective corrections policies.
New York State Prisons
Prisoners who suffer from serious mental illness should not be housed in solitary
confinement in prisons or jails and we must begin to reconsider the use of solitary confinement
for all prisoners whether diagnosed with a serious mental illness or not. When Judge Lynch5
approved the DAI v. OMH settlement agreement, he stated:
[G]reater attention should probably be paid to the problem of
extremely lengthy SHU confinement even to those who are not
mentally ill. As we learned during the trial, New York does not
have a formal Supermax prison, but when numerous lengthy
disciplinary sanctions of SHU confinement are made to run
consecutively, prisoners in effect are kept in conditions at least as
rigorous and perhaps even more so than in any official Supermax
facility perhaps without as carefully thought about consequences as
would exist in more official decision to relegate a prisoner to a
formal Supermax institution.
Tr. p. 9, 4/27/07. Despite this admonition from the Federal bench in 2007, DOCCS did not
implement changes to its utilization of solitary confinement beyond what was embodied in the
3

See Testimony to this Subcommittee of The Legal Aid Society, Prisoners’ Rights Project, June 19, 2012.

4

See Kaba, Lewis, Glowa-Kollisch, Hadler, Lee, Alper, Selling, MacDonald, Solimo, Parsons and Venters, Solitary
Confinement and Risk of Self-Harm Among Jail Inmates, 104 AM.J. PUBLIC HEALTH 442, 445 (2014) available at:
http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2013.301742; Yaroshefsky, Rethinking Rikers – Moving
from a Correctional to a Therapeutic Model for Youth - Proposal for Rule-Making Report for the NYC Board of
Correction (January 2014); Gilligan, Lee, Report to the New York Board of Correction (Sept. 2013); New York
Civil Liberties Union, “Boxed In – The True Cost of Extreme Isolation in New York’s Prisons” available at:
http://nyclu.org/publications/report-boxed-true -cost-of-extreme-isolation-new-yorks-prisons-2012.
5

Judge Gerard E. Lynch, then of the United States District Court for the Southern District of New York, now
serving on the United States Court of Appeals for the Second Circuit.

2

settlement of the DAI v. OMH litigation and then in the SHU Exclusion law until additional
litigation was pursued by the New York Civil Liberties Union (NYCLU) and others.
In the NYCLU case, Peoples v. Fischer, No. 11 Civ. 2694 (S.D.N.Y. 2013), an interim
agreement (“Stipulation for a Stay With Conditions”) was entered on February 19, 2014.6 The
agreement suspends the litigation for a period of two years during which the use of solitary
confinement in the prisons will be studied and reviewed collaboratively with two nationally
recognized experts (Dr. James Austin and Eldon Vail).7 During the two year period, DOCCS
will no longer place pregnant women or individuals who are 18 years or younger into solitary
confinement and will limit to 30 days SHU sentences of individuals with developmental and
cognitive disabilities. The reforms for young individuals and individuals with developmental
disabilities are similar to the protections provided to individuals with serious mental illness
pursuant to the SHU Exclusion Law which include diversion to less restrictive housing with
daily out-of-cell programming. In addition, new guidelines will be implemented controlling the
length of isolation sentences for each specific rule violation. The “sentencing” guidelines are not
yet public. Whether these interim measures will lead to further more substantial reforms must
await the conclusion of this litigation.
We are pleased that New York State is taking additional steps toward reform of solitary
confinement in the state prisons and hope that prior reticence toward valid reform will be abated
with the guidance from the experts as they review the security bases for the extremely long
sentences to solitary that are common in New York’s prisons. However, it is substantial and
comprehensive reform that must be the goal. Models for valid, safe and humane policies that
provide alternatives to solitary confinement are increasing, proving effective and should be
replicated in New York and other jurisdictions.8
The Humane Alternatives to Long-Term (HALT) Solitary Confinement Act
Newly proposed legislation in New York, the HALT Solitary Confinement Act, A08588
(Aubry) / S06466 (Perkins), provides such a model for comprehensive reform of prison and jail
policies and elimination of harmful long-term isolation. The HALT Solitary Confinement Act
(HALT) limits isolated confinement to no more than 15 consecutive days nor 20 days total in any
60 day period. 9 Pursuant to HALT, any person who needs to be separated from general
6

Peoples, et. al. v. Fischer, 11-CV-2964 (SAS), Stipulation for a Stay with Conditions is available at:
http://www.nyclu.org/files/releases/Solitary_Stipulation.pdf.
7

Dr. James Austin is President of the JFA Institute and an expert in classification of prisoners. His work as an
expert for the ACLU in an action against the Mississippi Department of Correction significantly reduced the use of
solitary confinement in Mississippi. Eldon Vail is the former chief of the Washington State Department of
Corrections.

8

Maine voluntarily reduced confinement in its supermax unit by more than 60 percent and Mississippi reduced its
use of solitary confinement by 75 percent and closed a supermax unit. Both states, however, continue to house
prisoners in extreme isolation. See Cassella and Ridgweay, In States That “Reduce” Their Use of Solitary
Confinement, Suffering Continues for Those Left Behind, available at: http://solitarywatch.com/2013/11/13/statesreduced-use-solitary-confinement-suffering-continues-left-behind/. Connecticut and Maine prohibit the solitary
confinement of juveniles. CONN. GEN. STAT. ANN. § 46B-133(e), ME. REV. STAT. ANN. TIT. 34 § 3032(5).
9

The U.N. Special Rapporteur on Torture has defined any use of solitary beyond 15 days to amount to torture or
cruel, inhuman or degrading treatment. See Interim report prepared by the Special Rapporteur of the Human Rights

3

population for a longer period is diverted to a residential rehabilitation unit (RRU) that provides
programs, therapy and support. HALT provides inter alia criteria for limiting placement into
isolation or an RRU, bans vulnerable populations from isolation (those under 21 years old, 55
years or older, with physical, mental or medical disability, pregnant women, and individuals
perceived to be LGBTI), creates enhanced due process protections during the disciplinary
hearing process, requires training of staff, oversight by the New York State Justice Center for the
Protection of People with Special Needs,10 and public reporting on the number, categories and
lengths of stay of prisoners in isolation and in the RRUs.11
New York City Jails
In total disregard of reforms implemented in the New York State prisons for individuals
with serious mental illness, as well as reforms around the country reducing reliance on solitary
confinement, under the Bloomberg Administration, the NYC DOC increased its use of solitary
confinement (punitive segregation).12 The percentage of the New York City jail population in
solitary confinement increased from 2.7% in 2004 to 7.5% in 2013. The number of solitary
confinement beds increased in number from 614 in 2007 to 998 in 2013. At the same time,
approximately 40% of the individuals incarcerated in the City jails were reported to have a
psychiatric diagnosis with many of that number suffering from major mental illness.13
Because of failure of the prior City Administration to solve, or even make progress
towards solving, the long-standing problem of inhumanely housing individuals with mental
illness in punitive solitary confinement settings in the City jails, and its increased reliance on
solitary confinement of all types of prisoners, advocates in New York including the Prisoners'
Rights Project of The Legal Aid Society formed a community organization/umbrella group
called the NYC Jails Action Coalition (JAC). On April 9, 2013, JAC petitioned14 the City Board
of Correction to implement new rules regarding solitary confinement to be made part of the jail

Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E.Méndez, available at:
http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf.
10

The New York State Justice Center for the Protection of People with Special Needs is a state agency authorized
to monitor, investigate and respond to abuse of vulnerable persons and to make recommendations to positively
impact the safety of service recipients and the employees who are entrusted with their care.
11

The Humane Alternatives to Long-Term Solitary Confinement Act is available at: http://open.nysenate.gov/
legislation/bill/A8588-2013.

12

The prior City Administration was aware that even as crime in NYC had declined, individuals with mental
illnesses were an increasing percentage of the City’s jail population. In March 2011, NYC sought assistance for a
study concerning individuals with mental illness in the NYC jails from The Justice Center of The Council of State
Governments. Improving Outcomes for People with Mental Illnesses Involved with New York City’s Criminal
Court and Correction Systems was completed in December 2012. The CSG Report findings included that
individuals with mental illness had longer (double) lengths of stay and were less likely to make bail than individuals
with no mental illness. It identified failures in linking individuals with mental illness to alternatives to incarceration,
and a lack of sufficient community alternatives willing to serve people involved in the criminal justice system. The
report is available at: http://www.nyc.gov/html/doc/html/events/FINAL_NYC_Report_12_22_2012.pdf.
13
14

Gilligan and Lee, supra note 3 at p. 3.

The JAC Petition for
%20to%20BOC.pdf.

Rule-Making is available

4

at: http://www.nycjac.org/storage/JAC%20Petition

Minimum Standards.15 After the JAC petition was filed, the NYC DOC took some minimal
steps towards reform; the Board of Correction, its experts and its staff have investigated and
agreed to initiate rule-making to solve harmful, dangerous, and abusive use of solitary
confinement in the jails; and a study of solitary confinement and the risk of self-harm was
conducted and published by employees of NYC DOHMH.16 All of the investigations, reports
and studies identify alarming failures by the prior Bloomberg Administration to end abusive and
dangerous conditions in the City jails.
In September 2013, a report to the New York City Board of Correction by their mental
health experts, Drs. James Gilligan and Bandy Lee, reported on the large numbers of individuals
with mental illness in solitary confinement in the City jails and the failure to provide treatment in
accordance with the current Minimum Standards.17 Based on what they observed in the jails,
Drs. Gilligan and Lee recommended that no individuals with mental illness should be placed in
solitary confinement, that no individuals at all should be subjected to the prolonged solitary
confinement in use in the City jails because “it is inherently pathogenic – it is a form of causing
mental illness.”18 They reported on the reforms implemented by NYC DOC: the creation of a
Clinical Alternative to Punitive Segregation (CAPS) unit for individuals with serious mental
illness and the Restricted Housing Units (RHU) for individuals with “non-serious” mental
illness. The doctors reported that CAPS was far too small for the population that would need a
therapeutic alternative placement and should be expanded, and that the RHU was a complete
failure and non-therapeutic. The report recommended elimination of the RHU model because it
remains punitive in nature and does not grant any relief from the use of solitary confinement.
The report detailed the lack of access to treatment (even in the purportedly therapeutic RHU), the
lack of an appropriate range of available treatment modalities, and the utter lack of a physical
environment conducive to providing confidential treatment in a clean and private space.
Drs. Gilligan and Lee chillingly detail the violent culture in the NYC Jails: “[a]ll too
many of the officers that we observed appeared to us to make it clear that they were quite willing
to accept an invitation to a fight, or to regard it as a normal response within the cultural norms of
the jail.” 19 During their investigation they witnessed an adolescent in the RHU becoming
increasingly agitated in his cell – first banging his arms and legs on his cell door then his whole
body, ripping up a sheet, wrapping his arms, legs and then neck as if preparing to hang himself.
No NYC DOC staff responded until Drs. Gilligan and Lee intervened. Shockingly (since the
RHU is supposed to be a therapeutic alternative to solitary confinement for individuals with
mental illness), the officer staff’s first response was to pull out a can of mace. The doctors had
to intervene and insist that this was not necessary and that mental health staff should be notified.
The violent response of staff to the individuals in their care, followed by severe punishment with
solitary confinement, was identified as “the mutually self-defeating vicious cycle that develops
between inmates and correction officers, in which the more violently an inmate behaves, the
15

The Board of Correction establishes and ensures compliance with minimum standards regulating conditions of
confinement and correctional health and mental health care in all City correctional facilities.

16

See Kaba, Lewis, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, supra note 3.

17

Gilligan, Lee, supra note 3.

18

Id. at p. 6.

19

Id. at p. 16.

5

more seriously he is punished, and the more seriously he is punished, the more violent he
becomes.” It is a perpetual vicious cycle that fuels continued violent conduct. In the face of
overwhelming lack of appropriate care and treatment, the doctors’ report calls for significant
changes in policy, culture and training of staff.
Two additional reports prepared by and for the Board of Correction concern the
adolescent population of the New York City jails.20 Three Adolescents with Mental Illness in
Punitive Segregation at Rikers Island was written by members of the Board of Correction staff
and details the poor quality of mental health treatment and delivery of treatment services for
three children with mental illness while held in solitary confinement settings in the NYC jails.21
Rethinking Rikers: Moving from a Correctional to a Therapeutic Model for Youth was prepared
by Professor Ellen Yaroshefsky with assistance from students at Cardozo Law School and
provides examples from New York State and other states to use as a basis for eliminating the use
of solitary confinement for youth and to shift to a therapeutic approach with practices that are
specialized for and dedicated to youth rehabilitation.22 Similarly to the findings in the report of
Drs. Gilligan and Lee, Rethinking Rikers reports on the failed policy and over-utilization of
solitary confinement and calls for a “much-needed cultural transformation on Rikers Island.”23
Solitary Confinement and Risk of Self-Harm Among Jail Inmates reports on a study
conducted by employees of NYC DOHMH.24 The report makes numerous findings that illustrate
that solitary confinement is a dangerous and self-defeating practice:
• The risk of self-harm and potentially fatal self-harm associated with solitary confinement
was higher than outside solitary, independent of prisoners’ mental illness status and age
group.
• Self-harm is used as a means to avoid the rigors of solitary confinement – inmates
reported a willingness to continue to do anything to escape solitary confinement.
• Patients with mental illness become trapped in solitary confinement, earning new
infractions resulting in more time in solitary.25

The report indicates a need to reconsider the use of solitary confinement as punishment in jails
“especially for those with SMI and for adolescents,” and cites to the American Psychiatric
Association and American Academy of Child Adolescent Psychiatry as professional societies
that recommend against the use of solitary confinement for adolescents and individuals with
20

New York is one of only two states in the country to treat 16 and 17-year olds as adults in its courts.

21

Staff Report: Three Adolescents with Mental Illness in Punitive Segregation at Rikers Island, CITY OF NEW YORK
BD. OF CORRECTION (Oct. 2013), available at http://www.nyc.gov/html/boc/downloads/pdf/reports/
Three_Adolescents_BOC_staff_report.pdf.
22

See Yaroshefsky, Rethinking Rikers, supra note 3.

23

Id. at p. 48.

24

See Kaba, Lewis, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, supra note 3.

25

The study includes the “extreme” example of a patient breaking a sprinkler head to use to self-harm and receiving
an institutional infraction as well as a new criminal charge for the destruction of government property. Id. at p. 446.

6

serious mental illness.26 It then goes on to describe the creation of CAPS and RHU as reforms
that will “provide an opportunity to evaluate the effect of increased clinical management and
decreased reliance on solitary confinement as a means to reduce self-harm and other behaviors
among inmates with mental illness.”
As with steps towards reform in the New York State prisons, we are pleased that the
NYC DOC is taking some steps toward reform of solitary confinement. The first reports about
the CAPS unit indicate that it appears to provide a therapeutic setting far different than solitary
confinement. However, admissions to the CAPS unit remain extremely low despite the large
population of individuals with mental illness in need of release from solitary confinement and of
its therapeutic programming. The RHUs continue to be extremely punitive in nature and are not
providing a respite to long terms of isolation for the individuals with mental illness housed in
them. In conjunction with implementation of the RHUs, changes were made to the sentence
structure for disciplinary sentences. Although there was a brief period of reduced sentences,
those changes were short-lived; sentences are increasing and very harsh sentences continue to be
meted out.
The implementation of CAPS and RHU and the changes to disciplinary sentencing
simply do not comprise the needed comprehensive reforms that address the root problems of far
too many individuals with mental illness ending up in the criminal justice system or the failure to
respond to their needs in the jails in a non-punitive manner. Necessary reforms include training
DOC staff to work with individuals with mental illness in an appropriate and humane manner
rather than in a punitive (and all too commonly violent) manner; changing police and bail
policies to reduce the number of individuals with mental illness committed to the City jails; and
sufficient alternatives to incarceration to move individuals with mental health needs out of the
criminal justice system, since the need is for medical and social service interventions.
The existing reforms also do not reflect the substantial and comprehensive reform to the
use of solitary confinement needed in the NYC jails and now repeatedly identified in the
described reports and studies.
JAC Petition for Rule-Making in New York City
The HALT Solitary Act (described above) and the JAC Petition for Rule-Making provide
models for comprehensive reform of prison and jail policies and elimination of harmful longterm isolation. The JAC Petition proposes significant limits on the use of solitary confinement,
places a 15 day limit on each sentence with no more than 60 consecutive days permitted,
provides for 4 hours out-of-cell in solitary confinement, excludes vulnerable populations (under
25 years old, and individuals with mental, physical or medical disabilities), provides for
alternative safety restrictions for vulnerable populations which require 8 hours out-of-cell daily
and a program of positive incentives, enhanced due process requirements at disciplinary and

26

Id. at p. 447.

7

other hearings, and public reporting on the use of solitary confinement and alternative safety
restrictions.27
We are hopeful that when the new City Commissioner is appointed substantial and
comprehensive reforms of the failed policies of the prior Bloomberg Administration can proceed.
We are hopeful that the rule-making initiative of the Board of Correction will serve to implement
reforms recommended in the JAC Petition and put an end to the overly punitive response to all
individuals in the NYC Jails, and will end the use of isolated confinement for individuals with
disabilities and for individuals under the age of 25. The need for comprehensive reform is
clearly identified in each of the recent studies and reports on the NYC jails. The City should also
change police and bail policies to reduce the number of individuals with mental illness who are
relegated to the City jails, and provide sufficient alternatives to incarceration to move individuals
with mental health needs out of the criminal justice system and provide the medical and social
service interventions that they need and that will better serve society than locking them up in
institutions that do not adequately address their problems.
The advocates in NYC will continue to push for genuine comprehensive reform,
increased transparency and more community involvement in designing and implementing jail
reforms.
Conclusion
We urge the Subcommittee to support solitary confinement reform efforts in New York
and across the country. Federal support for the collection and dissemination of data on the use of
solitary confinement (in all its forms – punitive/disciplinary segregation, administrative
segregation, protective custody etc.) will provide essential information on the harmful lengths of
stays in solitary and their human and fiscal costs; data collection on alternatives to solitary
confinement will ensure that valid evidence-based rehabilitation programs are identified and may
then be replicated; and outcome data from correction policies that limit the use of solitary
confinement will assist in encouraging rule changes that will create humane, safe and costeffective corrections policies. In order to achieve comprehensive reform we make the following
recommendations to the Subcommittee:
Increase transparency and publicly available information about solitary confinement:
• Provide Federal funding for the study of the costs and effects of solitary confinement including
barriers to reentry and recidivism.
• Provide for public reporting by the Bureau of Justice Statistics on the use and cost of solitary
confinement nation-wide.
• Support legislative and other initiatives to publicly report on use of solitary confinement in jails
and prisons.

27

The JAC Petition for
%20to%20BOC.pdf.

Rule-Making is available

8

at: http://www.nycjac.org/storage/JAC%20Petition

• Provide funding and other support for implementation of independent oversight agencies for jails
and prisons.

Support efforts to end long-term solitary confinement:
• Federally fund comprehensive evidence-based initiatives to reform the use of solitary
confinement (with public reporting on outcomes) and provide enhanced programming.
• Support efforts to implement legislation, correction policy, regulations and other rules to limit the
use of all forms of isolation in prisons, jails and other detention facilities and to ban solitary
confinement of vulnerable populations.
• Federally fund correction staff training that includes non-violent de-escalation interventions and
skills for working with trauma victims and individuals with mental illness and other disabilities.

I thank the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human
Rights for attention to the important issue of solitary confinement in our prisons and jails. I
appreciate the opportunity to provide this written testimony.
Dated: February 25, 2014
Sarah Kerr
Staff Attorney
The Legal Aid Society
Prisoners’ Rights Project
199 Water Street
New York, NY 10038
(212) 577-3530

9