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Reassessing Solitary Confinement II Texas Public Policy Foundation Congressional Testimony 2014

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Testimony of Marc A. Levin, Esq.
Director of the Center for Effective Justice at the Texas Public Policy
Foundation Before the U.S Senate Judiciary Subcommittee on The
Constitution, Civil Rights and Human Rights
February 25, 2014

The Texas Public Policy Foundation (TPPF) is a conservative think tank. Our mission is
to promote and defend liberty, personal responsibility, and free enterprise, and in 2005 the
Foundation launched the Center for Effective Justice, which has worked with all three branches
of Texas government to advance solutions that emphasize offender and system accountability,
empowerment and restoration for victims of crime, and fiscal responsibility. We’ve assisted with
reforms in Texas that have led to the closing of 10 juvenile and adult correctional facilities while
at the same time achieving crime reductions that have surpassed the overall national decline.
Texas now has its lowest crime rate since 1968.1 In 2010, the Texas Public Policy Foundation
launched Right on Crime, which is a national clearinghouse for conservative criminal justice
reforms. The Right On Crime Statement of Principles has been signed by many of the country’s
most prominent conservative leaders.
As conservatives, we are appropriately skeptical of government that is too large, too
intrusive, and too costly, and we insist on accountability and transparency. Government is at its
most restrictive when it imposes solitary confinement so it is only appropriate that we bring a
critical focus to this issue rather than succumb to an out of sight, out of mind mentality. While
we recognize solitary confinement is needed in some instances, policies and practices must be
implemented to ensure it is not unnecessarily used to the detriment of public safety, taxpayers,
and justice.
The U.S. Bureau of Prisons (BOP) maintained approximately 12,400 inmates in solitary
confinement at the time of the May 2013 General Accounting Office (GAO) report, although
BOP officials claim the segregated population has declined since then. Many more inmates are
so housed in state prisons, which typically means 23 hours alone in a small cell with no
stimulation or interaction with other people. The GAO report found that the use of solitary
confinement has been growing in the federal prison system despite a lack of any available
evidence that this practice was increasing safety for inmates and staff.2 The GAO report also for
the first time revealed the actual cost of solitary confinement on the federal level, finding that it
amounts to $78,000 per inmate per year, nearly three times that of housing inmates in the general
population.3 Since the time of the last Senate hearing on solitary confinement, BOP has agreed

to begin an audit that will, for the first time, lead to some outside scrutiny of BOP’s use of
The research in this area and the recent successes that several states have achieved in
both reducing solitary confinement and improving order in their correctional facilities suggests
that there are changes in policies and practices from which both the BOP and state prison
systems can benefit.

While often viewed primarily as a moral issue, solitary confinement has significant
implications for public safety. First and foremost, prisons must discontinue the practice of
releasing inmates directly from solitary confinement to the public.
A study in Washington state found that inmates released directly from the Supermax
prison, which consists entirely of solitary confinement, committed new felonies at a rate 35
percent greater than that for inmates of the same risk profile released from the general
population.4 Additionally, a greater percentage of the new crimes committed by those released
from solitary confinement were among the most serious violent felonies.5
Despite this finding, many states continue to release inmates directly from solitary
confinement, with more than 1,300 such releases in 2011 in Texas alone.6 In 2013, a Colorado
inmate released directly from solitary confinement murdered the state’s director of corrections,
Tom Clements. Alarmingly, dating back to 2002, half of those released from Colorado prisons
who subsequently committed murder served time in solitary confinement, with some discharged
directly to the street. However, as documented below, major changes are underway that are
significantly reducing overall solitary confinement in Colorado and those discharged directly
from this custody level, with the latter figure falling from 221 in 2004 to 70 in 2013.7
The average American may understandably wonder, if an inmate is too dangerous for the
general population of a prison, how can they live next to me the next day? While inmates who
have served their entire sentence must by law be released, this date is not a mystery to
corrections officials. Stepping them down to a lower level of custody at least several months
prior to release is not too much to ask.
While it is commonsensical to most people that someone who was subjected to 23 hours
a day in a cell with no stimulation will have great difficulty reentering society the next day, the
negative effects of solitary confinement on those who were mentally ill even prior to entering
solitary confinement are well documented. The Journal of the American Academy of Psychiatry
Law noted: “The stress, lack of meaningful social contact, and unstructured days can exacerbate
symptoms of illness or provoke recurrence. Suicides occur disproportionately more often in
segregation units than elsewhere in prison.”8 One study found that 45 percent of prisoners in
Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●

solitary confinement suffered from serious mental illness, marked psychological symptoms,
psychological breakdowns, or brain damage.9

One of the most stunning examples of downsizing solitary confinement comes from
Mississippi. In 2007, Mississippi had 1,300 inmates in solitary confinement while today there are
only 300.10 This downsizing has saved Mississippi taxpayers $6 million, because solitary
confinement costs $102 per day compared to $42 a day for inmates in the general population.11
Most importantly, violence within Mississippi’s prisons and the recidivism rate upon release are
both down, with violence dropping nearly 70 percent.12
Maine is a similar success story. In 2011, the state prison in Warren instituted a plan to
reduce long-term segregation which has resulted in a decline in the segregated population from
139 in August 2011 to between 35 and 45 inmates just a year later.13 Importantly, Maine
Corrections Commissioner Joseph Ponte said the downsizing of solitary confinement has led to
“substantial reductions in violence, reductions in use of force, reductions in use of chemicals,
reductions in use of restraint chairs, reductions in inmates cutting [themselves] up — which was
an event that happened every week or at least every other week…The cutting has] almost been
totally eliminated as a result of these changes.”14
Some of the changes involved reducing the duration of solitary confinement – for
example, those segregated for drugs can now graduate out of confinement and stay in the general
population as long as they pass drug tests. Moreover, there was a change in the chain of
command. Rather than the shift captain being able to place an inmate in segregation for more
than three days, the segregation unit manager and the housing unit manager must agree after this
period to continue the segregation and that decision must be ratified by the Commissioner.
Similarly, in the last decade, Ohio dramatically reduced its solitary confinement
population from 800 to 90 prisoners.15 Additionally, from September 2011 to September 2013,
Colorado cut the number of inmates in solitary confinement from 1,505 to 662. The number of
mentally ill offenders in solitary confinement has fallen even more sharply and Colorado
Department of Corrections Executive Director Rick Raemisch has proposed that, for those
mentally ill offenders who are not redirected to a secure treatment program, they be given at least
20 hours of out-of-cell programming per week.
It is important to note that prison staff do not necessarily want more inmates to be in
solitary confinement. In fact, in January 2014, the association representing Texas prison guards,
AFSCME Texas Correctional Employees Local 3807, called for reducing the solitary
confinement of death row inmates, noting that because “inmates have very few privileges to
lose,” staff become easy targets.16
Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●

There have been some incremental advances in improving Texas’ use of solitary
confinement. In 2013, a provision was enacted requiring an independent study of solitary
confinement that is now getting underway. Also, bills that were proposed on this issue in the last
several legislative sessions brought the matter to the attention of corrections leaders. At hearings
on the legislation, Texas Department of Criminal Justice (TDCJ) officials were called to testify
to explain their policies and practices and it was apparent that, while legislators did not want to
micromanage the agency, they wanted to see progress. From 2007 to the most recent report, the
number of inmates in solitary confinement in Texas prisons, referred to as administrative
segregation, has dropped from 9,347 to 8,238.17 These figures do not include those in
“safekeeping,” a form of protective custody for vulnerable inmates such as former police
One of the keys to the modest reduction in solitary confinement in Texas has been the
elimination of the waiting list for the Gang Renunciation and Disassociation Program (GRAD)
where inmates can earn their way out of solitary confinement by renouncing their gang affiliation
and receive protection during the process. Notably, none of the inmates who have completed this
program have ever returned to solitary confinement.18 In Texas, unlike many other states,
inmates can be placed in solitary confinement not only for disciplinary violations, but also upon
initial entry into prison if they are suspected to be gang members. This is why the GRAD
program is particularly important.
More broadly, any intervention that reduces prison violence is likely to reduce solitary
confinement by avoiding the incidents that often lead to it. One of the best models for promoting
order in prisons is the parallel universe model embraced by Arizona in 2004 through the “Getting
Ready” program, which won the innovation award from the Harvard University JFK School of
Government. The parallel universe model attempts to make prison more like ordinary life in that
how the inmate is treated is directly related to their behavior. For example, inmates who are
exemplary, both in completing educational and treatment programs, holding a job inside of
prison, and maintaining an unblemished disciplinary record, have a longer curfew and receive
better food. Since the program was implemented, inmate violence has decreased by 37 percent,
inmate-on-staff assaults by 51 percent, and inmate suicides by 33 percent.19 So many inmates are
working through the program that they have contributed more than $1 million to a fund for
victims of crime, and recidivism rates of participants are 35 percent lower than for similar
By the same token, the swift and certain sanctions model that is so successful in the
HOPE Court certainly has a place inside prisons. It is a bit more challenging to apply a matrix of
intermediate sanctions in prison because there are fewer privileges that inmates have that can
constitutionally be withheld, as compared with those on probation or parole. However, such
sanctions can include withholding access to the commissary, withholding access to the phone
and mail except to communicate with an attorney, relocation to a less desirable cell or higher
security unit and away from any inmate with whom they have a dispute, and even short stints in
solitary confinement of 24 to 72 hours. Required anger management programming should also be
Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●

available as a response to misconduct. While inmates who instigate force causing serious bodily
harm to a staff member or other inmate should be placed in solitary confinement for a significant
period of time rather than dealt with through intermediate sanctions, these intermediate sanctions
can address the more common, less severe disciplinary infractions before they escalate to that
However, perhaps the most effective sanction is sometimes not available due to policies
that result in a large share of inmates serving all or nearly all of their sentence behind bars,
regardless of their behavior. Those inmates eligible for parole typically realize that their record
of behavior inside prison will be a major factor in whether they will be approved for parole. In
those states with good time or earned time policies, the only way an inmate can earn time off
their sentence is through good behavior, though under earned time policies they often must go
beyond that by completing treatment, educational, and vocational programs. Yet, the federal
government and many states abolished parole in the 1990’s, even for nonviolent offenders. Some
of these same states such as Florida also adopted so-called truth-in-sentencing policies that
require even nonviolent offenders to serve 85 to 90 percent of their sentences beyond bars.
However, a 2013 a study conducted by the Pew Charitable States Public Safety
Performance Project of New Jersey of inmates released from prison found that comparable
inmates placed on parole supervision committed 36 percent fewer new offenses, casting doubt on
policies such as the abolishment of parole that have led to more inmates maxing out their entire
term behind bars.21 Not only does the elimination of parole and requirements that inmates serve
virtually all their time in prison put prison growth on auto-pilot, these policies create another
drawback that is relevant here. That is, many inmates know that, unless they go so far as to
commit another crime in prison, they will be released on the same date or virtually the same date
regardless of their behavior. The same drawback applies to life without parole sentences, which
while justified in many of the cases in which they are imposed due to the heinousness of the
crime and a pattern of violence, are being served by inmates in Louisiana for offenses such as
marijuana and stealing a belt.22 While Louisiana is the state with the most nonviolent offenders
serving life without parole, the federal system dwarfs all states, accounting for two-thirds of the
3,278 prisoners serving life without parole in 2013 for nonviolent offenses. By reducing the
share of inmates, particularly nonviolent inmates, who must serve all or virtually all of their
entire terms behind bars, we can ensure that more inmates have an incentive to avoid the types of
misconduct that often lead to solitary confinement.

The successful experiences of several states and the empirical research in this area lead to
many recommendations that can reduce the unnecessary use of solitary confinement while
promoting order in correctional facilities. These include:
1) End the practice of releasing inmates directly from solitary confinement.
Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●

2) Ensure that there is an oversight mechanism, whether that is an ombudsman or the head
of the department, to review decisions to keep an inmate in solitary confinement beyond
72 hours. This is particularly important in states like Texas where inmates can be placed
in solitary confinement simply for being a suspected gang member, a determination
which is prone to human error.
3) Provide a means for inmates to earn their way out of solitary confinement, such as
through a period of exemplary behavior and gang renunciation, if they were not placed
there for instigating force that caused serious bodily injury to a staff member or other
4) Eliminate rules that make all inmates in solitary confinement ineligible for any
programing and allow such inmates access to constructive reading materials, including
educational course books.
5) Enhance training for prison personnel in de-escalation techniques, mental illness, and
mental retardation, issues which often lead to solitary confinement. Some states such as
Nebraska are looking at having some higher level prison guard positions filled by
individuals with degrees in areas such as social work who are better equipped to not just
respond to behavior, but change it.
6) Require agencies to include in their annual or biennial budget proposals an estimate of
the additional cost attributable to solitary confinement.
7) Implement a parallel universe model that creates incentives for positive behavior and
8) Create a matrix of intermediate sanctions that must be used prior to placing an inmate in
solitary confinement for more than 72 hours, unless that inmate has instigated force that
caused serious bodily injury to a staff member or other inmate.
9) For nonviolent inmates, restore parole and allow for earned time, thereby reducing the
number of “dead-enders” and allowing for substantial variation in time served based on
the inmate’s performance. We recommend the pending bills before this Committee by
Senators Whitehouse and Portman (S. 1675) and Cornyn (S. 1783) that would expand
earned time for nonviolent offenders
10) Enact into law the Smarter Sentencing Act (S. 1410), introduced by Chairman Durbin
and Senator Lee, and cosponsored by Ranking Member Cruz, which will reduce
overcrowding in the federal system so that we can focus on the most serious offenders,
lead to safer institutions, and save billions that can also be used for other important public
safety priorities. Overcrowding can contribute to the overuse of solitary confinement by
leading to an insufficient number of guards to control inmates in the general population
and making it more difficult to separate inmates and groups of inmates who may have
issues with one another.
11) Utilize “missioned housing,” which are separate, smaller correctional settings, for
inmates in segregation as protective custody, such as former police officers and those
who have recently exited a gang, as well as for mentally ill and developmentally delayed
inmates who were segregated due to an inability to follow orders. These inmates who did
not harm another inmate or staff member should not be subject to 23 hours of solitary
confinement alongside those who committed acts of violence behind bars. The Wisconsin
Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●

model of Special Management Units provides an example of such “missioned housing”
for these types of inmates.
12) Reexamine prison construction and renovation plans, including the planned BOP
retrofitting of the Thomson unit purchased from Illinois, to ensure unnecessary
Supermax/solitary confinement beds are not added. Even if additional maximum security
capacity is needed, the vast majority or all of the beds can be general population beds.
13) Other states should join the BOP and states such as Illinois and Maryland in bringing in
an outside organization, such as the Vera Institute, to provide a perspective from outside
the system, analyze data, and help train wardens and other personnel in alternative
strategies. Vera provided technical support to Washington and Ohio in successfully
reducing solitary confinement and is now working with Illinois and Maryland through
their Segregation Reduction Project to analyze data, and help train wardens and other
personnel in alternative strategies. In Illinois, for example, Vera found that 85% of the
more than 2,000 inmates in solitary confinement were placed there for less severe types
of infractions and that the average length of stay was some 2.8 years.23
14) Improve availability of data. For example, there is no reliable data on the number of
inmates in different types of segregation (punitive versus protective) and very little data
at all on local jails and immigration detention centers.

It is doubtful that any prison warden ever lost their job for putting an inmate in solitary
confinement. Prison officials are rightly worried about being held to account for prison violence
and escapes. Consequently, absent independent scrutiny and a focus on this issue at the highest
level in a corrections agency, the natural incentive within the system can be to use solitary
confinement excessively. As conservatives who believe in holding institutions accountable, we
must be especially vigilant in shining a light into these darkest recesses of government. Now,
that light is illuminating policies and practices that can lead to greater public safety through
improved offender outcomes, lower costs to taxpayers, and more orderly correctional facilities.

Marc Levin and Jeanette Moll, “Texas Is Still Tough on Crime, But Now More Effective,” Texas Public Policy
Foundation, March 2013,
“Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing,
General Accounting Office, May 2013,
David Lowell, et. al., “Recidivism of Supermax Prisoners in Washington State,” Crime & Delinquency, Oct.2007,
vol. 53 no. 4 633-656,
Testimony of Travis Leete, Texas Criminal Justice Coalition, April 17, 2013,
Jennifer Brown and Karen Krummy, “Half of parolees who murdered spent time in solitary confinement,”

Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●


Denver Post, Sept. 23, 2013, Rick Raemish, “My Night in Solitary,” New York Times, Feb. 20, 2014,
Jeffrey L. Metzner, MD and Jamie Fellner Esq., “Solitary Confinement and Mental Illness in U.S. Prisons: A
Challengefor Medical Ethics,” J Am Acad Psychiatry Law 38:1:104-108 (March 2010),
D. Lovell, Patterns of disturbed behavior in a supermax population, Criminal Justice and
Behavior, 35, 985-1004 (2008).
Randall Pinkston, “Mississippi Rethinks Solitary Confinement,” CBS News, May 18, 2013,
Terry Kupers et al., “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison
Classification and Creating Alternative Mental Health Programs,” Criminal Justice and Behavior 36 (2009): 103750,
Alex Barber, “Less restriction equals less violence at Maine State Prison,” Bangor Daily News, June 15, 2012,
Terry Kupers et al., “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison
Classification and Creating Alternative Mental Health Programs,” Criminal Justice and Behavior 36 (2009): 103750,
Nicholas Flatow, “Texas Prison Guards Vie For Less Solitary Confinement.” Think Progress, Jan. 30, 2014,
TDCJ Statistical Reports for 2007 and 2012,
“Leaving Gang Life Behind in Texas,”,
Ann Coppola, “A Parallel Universe,”,
The Pew Charitable Trusts, “The Impact of Parole in New Jersey,” November 2013. Available at:
“A Living Death: Life Without Parole for Nonviolent Offenses,” American Civil Liberties Union, November 2013,
Testimony of Michael Jacobson, Director of the Vera Institute, June 19, 2012,

Texas Public Policy Foundation Center for Effective Justice ● Marc Levin, Esq., Director ● (512) 472 -2700 ●