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Still Worse Than Second-Class: Solitary Confinement of Women in the United States, ACLU, 2018

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Still Worse Than
Solitary Confinement of Women
in the United States

Still Worse Than
Solitary Confinement of Women in the
United States
© 2019 American Civil Liberties Union

American Civil Liberties Union
125 Broad Street
New York, NY 10004

Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Women Behind Bars.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
What Is Solitary Confinement?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Problems for Women in Solitary Confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Solitary confinement is used to punish and known to exacerbate
mental illness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Solitary confinement of pregnant people is harmful and
internationally condemned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Solitary confinement is used to retaliate against or retraumatize
victims of past abuse—and can render incarcerated women more
vulnerable to abuse by correctional officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Solitary confinement jeopardizes the parent-child relationship,
harming children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1
Special Harms of Solitary Confinement for Specific Populations of Women. . ................................... 1 2
Girls in Solitary Confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
Older Women in Solitary Confinement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
Transgender Women in Solitary Confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3
Solitary Confinement in Immigration Detention.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4
Reasons to Hope: Recent Reforms Limiting the Use of Solitary
Confinement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7
Conclusion and Resources.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9


This report was first published in 2014. Since then,
some things have changed for women in solitary
confinement—but many things have not. More attention
has been placed on women in prison and on solitary
confinement in general, but still, little attention has
been paid to the specific plight of women in solitary
confinement. Although laws, court decisions, and
settlement agreements have all limited the use of
solitary confinement for certain populations in some
jurisdictions, the use of solitary confinement is still
rampant in the United States. Vulnerable populations,
including pregnant people and women with mental
illness, are still being placed into solitary confinement,
and not enough is being done to enforce limitations on
such placements.
This 2019 version of the report includes updated facts
and data and new sections on girls under the age of
18 in solitary confinement, older women in solitary
confinement, and immigration detention. These new
sections highlight specific populations that are detained
at an increasing rate and that may or do suffer special
harms due to solitary confinement. For this 2019
version of the report, we also conducted interviews with
survivors of solitary confinement and a practitioner.
Specifically, we interviewed three women who had
experienced solitary confinement themselves and one
social worker who provided mental health care to women
in solitary confinement.1 These interviews provided onthe-ground, personal stories about what it is like to live in
solitary confinement and a deeper understanding of the
mental health impacts of this type of experience.
Solitary confinement—locking a prisoner in isolation
away from most, if not all, human contact for upwards
of 20 hours per day for weeks, months, or even years at
a time—is inhumane. When used for longer than 15 days,

ACLU: Still Worse Than Second-Class

or on vulnerable populations such as pregnant people,
children, and people with mental illness, the practice is
recognized by human rights experts as a form of torture.2
Prisons and jails across the United States lock prisoners
in solitary confinement for a range of reasons—punitive,
administrative, protective, medical—but whatever
the reason, the conditions are similarly harsh and
damaging. Experts in mental health, medicine, and
corrections agree that solitary confinement can have
uniquely harmful effects;3 this consensus has led experts
to call for the practice to be banned in all but the most
extreme cases, when other alternatives have failed or
are not available, where safety is an imminent concern,
and for the shortest amount of time possible.4 The U.S.
Department of Justice (DOJ) recommends limiting
the use of solitary confinement to the extent possible,
placing prisoners in the least restrictive setting in which
they can safely be housed.5 Supreme Court Justice
Anthony Kennedy openly questioned whether, given its
predictable toll on even formerly healthy individuals,
long-term solitary confinement is ever constitutional.6
Women prisoners are routinely subjected to solitary
confinement in jails and prisons across the United States.
Yet the use of solitary on women is often overlooked.7
Although the negative psychological impacts of solitary
confinement are well known, the unique harms and
dangers of subjecting women prisoners to this practice
have rarely been examined or considered in evaluating
the need for reforms in law or policy. As the number
of incarcerated women has climbed at an alarming
pace, women and their families and communities are
increasingly affected by what happens behind bars.8 It
is critical to address the treatment of women in prison—
especially those women subjected to the social and
sensory deprivation of solitary confinement.

Women Behind Bars

All prisoners are entitled to humane treatment and
a safe and secure environment. But there are some
key areas where the experiences of women prisoners
are different from those of men,9 and effective
criminal justice policies and practices must take
those differences into account. Women face many
physical, medical, and psychological challenges in
prison due to their high levels of mental illness and
trauma history, higher likelihood of having and
parenting minor children, and unique pregnancy and
reproductive health care needs. A higher percentage of
women than men find themselves in prison for minor
drug and property offenses.10 Indeed, even as the rate
of imprisonment for women has risen dramatically
in recent years, the percentage sentenced for more
serious crimes has fallen.11
Children are also among the victims of the United
States’ high incarceration rates. Since women are more
likely than men to be the primary or sole caretaker of


ACLU: Still Worse Than Second-Class

their children prior to incarceration,12 children and
families are profoundly affected by the rising numbers
of women sent to prison.13 Between 1991 and 2007, the
number of children with a mother in prison more than
doubled.14 About 62 percent of women in state prisons,
and 56 percent of women in federal prison, have minor
children.15 Upon imprisonment, this means that many
children must be moved to the home of another family
member, or even to foster care.16
The very existence of the parental relationship can
be endangered when a parent is incarcerated.17 In
addition to the devastating consequences of parental
incarceration on families, children’s future prospects
are also dimmed; children with mothers in custody are
more likely to develop depression and anxiety, are at
heightened risk of future substance abuse problems,
and are more likely to become involved in the criminal
justice system.18

What Is Solitary Confinement?

Solitary confinement consists of isolating a person
in a cell for upwards of 20 hours per day and severely
limiting human contact and environmental stimulation
of any kind. Brief interactions with correctional
staff, and perhaps an occasional cell-front visit from
a medical provider, may be a prisoner’s only human
contact for days, weeks, months, or even years.19
Prisoners in solitary confinement must often be
shackled and accompanied by multiple correctional
officers while transported to, from, and during medical
appointments, limiting their access to timely out-ofcell treatment.20 Prisoners in solitary confinement
are often denied access to reading materials and to
meaningful educational and life skills programming.
Solitary confinement frequently means reduced or no
natural sunlight21 and forced idleness, including little, if
any, opportunity to exercise. In spite of the diminished
human contact, solitary confinement can also bring
a near-total lack of privacy, with correctional officers
in some prisons able to view prisoners at all times via
Solitary confinement goes by many names, whether it
occurs in a so-called “supermax prison” built to house
people solely in solitary confinement or in a separate
unit within a regular prison. These separate units
are often called “restrictive housing” but may also be
known as disciplinary segregation, administrative
segregation, protective custody, control units, security
housing units (SHU), special management units (SMU),
or simply “the hole.” Recognizing the definitional
morass, the American Bar Association (ABA) has
created the following general definition of solitary
confinement, which it calls “segregated housing:”
The term “segregated housing” means
housing of a prisoner in conditions

ACLU: Still Worse Than Second-Class

The Nelson Mandela Rules, which the United
Nations General Assembly adopted in 2015,
prohibit the following:
•	 Solitary confinement for longer than 15 days
•	 Solitary confinement of prisoners with
mental or physical disabilities when those
disabilities could be exacerbated by solitary
•	 Solitary confinement of juveniles, pregnant
people, postpartum people, and people who
are breastfeeding
•	 Indefinite solitary confinement143

characterized by substantial isolation
from other prisoners, whether pursuant
to disciplinary, administrative, or
classification action. “Segregated housing”
includes restriction of a prisoner to the
prisoner’s assigned living quarters.23
Solitary confinement is psychologically damaging;
prisoners subjected to it exhibit increased psychiatric
symptoms as well as higher rates of suicide, suicide
attempts, and other forms of self-harm.24 Prisoners
in solitary confinement are often denied access to
rehabilitative programming and transitional services
because programming in segregated housing units is
typically deprioritized and often simply unavailable.25
Because such programming is often required for parole,
this deprioritization means that people in solitary

confinement may end up serving longer sentences than
they otherwise would have.26
The use of solitary confinement is pervasive in U.S.
correctional facilities.27 Although the percentage of
prisoners in solitary confinement at any given time
may be relatively low, over 20 percent of incarcerated
women and nearly 18 percent of incarcerated men
spend some time in solitary confinement over the
course of a given year.28 Fewer jurisdictions provide
data on women in solitary confinement than they do on
men, but those that do show that a lower percentage of
women than men are in solitary at a given time.29
Despite the popular misconception that solitary
confinement is used to house only “the worst of the
worst,” this is not true.30 In fact, solitary is often used
on the most vulnerable: prisoners who are pregnant,31
individuals with mental illness,32 transgender women
and other LGBTQ people,33 and—in a particularly
disturbing trend—victims of sexual assault by
correctional officers.34 Women of color, especially
Black women, are held in solitary confinement at rates
far exceeding those of white women; experts contend
that this disparity is due to racist presumptions

Tia Ryans entered prison as a teenager. She
managed to avoid solitary confinement initially,
but once she got sent there a couple times
for minor infractions, such as disobeying an
order, she “became angrier, disassociated with
everything” and started acting out more in the
general population, leading to even more time
in solitary confinement. In order to avoid being
“emotionally or mentally affected” by her own
and others’ suffering in solitary, she’d “block
a lot of stuff out. . . which is not. . . mentally
healthy; [I wasn’t] working through anything.” In
solitary, “you just sit there. . . . You just survive,
that’s it.” After so much stillness, she would get
motion sickness from even a short car trip, and
when she was released from prison, “it blew my
mind to see everyone walking fast.”144


ACLU: Still Worse Than Second-Class

about women of color’s criminality and perceived
lack of compliance with social norms about women.35
The reality is that, depending on discretionary
prison policies, prisoners can be placed in solitary
confinement for any number of infractions, such as
“talking back” or horseplay.36 Women are more likely
than men to receive disciplinary tickets for minor
nonviolent infractions like “disobedience” and also
more likely to be placed into solitary confinement as
punishment for such minor infractions.37
Even when prisons stop using solitary confinement
as a disciplinary measure—ostensibly isolating
prisoners only if necessary to protect the security
of the institution—vague standards for placement
in solitary confinement can be used to maintain the
same outcomes for prisoners.38 Mental illness can
contribute to behavioral infractions;39 untreated drug
addiction can also lead to placement in solitary when
prisoners with addictions gain access to narcotics in
prison.40 And because many cases come down to the
word of a prisoner against the word of a corrections
officer, an officer’s bad day can easily turn into solitary
confinement for a prisoner for retaliatory reasons, such
as a prisoner filing a grievance.41
Because prisons often use transitional or “step-down”
programs in which privileges and out-of-cell time are
slowly reintroduced before an individual is let back into
the general population, prisoners can spend months or
years at a time in solitary confinement.42 Often, prison
regulations and policies controlling solitary practices
are not transparent and available to the public, or even
to prisoners themselves, and sometimes prisoners
spend indeterminate periods in solitary confinement
with no opportunity for meaningful review of their
placement. Ultimately, some prisoners are released
from solitary confinement directly into their
communities without any preparation for living with
others—a practice shown to increase recidivism.43

Problems for Women in
Solitary Confinement

Solitary confinement is used to
punish and known to exacerbate
mental illness.
•	 Mental illness is common among women in
prison: The rate of serious mental illness—such
as schizophrenia and bipolar disorder—is
much higher among incarcerated women than
incarcerated men.44 Nearly 70 percent of women
in prison or jail have a history of mental health
conditions—a much higher rate than for men in
prison or jail.45 Solitary confinement has been
shown to exacerbate underlying mental health
conditions. The broad consensus among mental
health experts is that longer-term solitary
confinement is particularly psychologically
harmful, especially to those with pre-existing
mental illness. In studies of prisoners held
in solitary confinement for 10 days or longer,
prisoners have deteriorated rapidly, with
elevated levels of depression and anxiety, a
higher propensity to suffer from hallucinations
and paranoia, and a higher risk of self-harm and
•	 Women prisoners with mental illness are
held in solitary confinement at alarming
rates. In 2018, a report by the Vera Institute
of Justice determined that women in solitary
confinement had much higher levels of mental
health problems than women in the general
population or men in solitary confinement. For
example, in Oregon, 11 percent of women in the
general population had serious mental health
diagnoses; in contrast, 27 percent of women in
solitary confinement had such diagnoses, and
84 percent of women in solitary confinement had

ACLU: Still Worse Than Second-Class

“Absolutely, 100 percent, there was not a single
woman I saw in prolonged solitary who didn’t
change. There’s a whole cluster of symptoms
associated with solitary confinement that appear
in 2-4 weeks, creating an unsafe situation for
people who are confined under those conditions.
They’d have a terrible time adjusting to general
population after solitary as well. Going that
long without human touch, different sights and
sounds, can impair their ability to tolerate a
normal environment.”145

mental health problems requiring treatment.47
In June 2012, over half of the women in solitary
confinement in one California institution were
identified as mentally ill.48
•	 Because correctional officers are not trained
mental health professionals and therefore
cannot necessarily detect or appropriately
respond to mental illness,49 many women
prisoners can end up in solitary confinement
as a result of having a mental illness. They are
essentially punished for their illness.50 In 2011,
following a visit to the United States, the United
Nations Special Rapporteur on Violence Against
Women concluded that “[w]omen should not be
punished, through administrative segregation
or otherwise, for behavior associated with their
mental illness.”51
•	 One woman who worked as a cleaner while
incarcerated described the experience of a

young woman in isolation in a suicide prevention
cell: The woman had a “complete psychological
breakdown” and was placed into the cell for 21
days despite regulations limiting such placement
to a maximum of three days. Her psychosis was
so serious that she did not know her own name or
gender and would remove her suicide prevention
smock, leaving her completely naked, and “would
dance for the [correctional] officers who would
bring other officers to watch for entertainment. .
. . They would encourage her” to dance and did
not provide her with mental health care.52 The
woman explained that it “[d]id and still does
hurt my soul that not only one person thought
it was okay [to] use her as entertainment, but
multiple people on multiple shifts over multiple
days thought that this was okay. . . . It’s a culture

Solitary confinement of pregnant
people is harmful and internationally
•	 The DOJ recommends against putting
pregnant or postpartum prisoners into solitary
confinement in all but the most extreme
circumstances.54 International standards set by
the United Nations Rules for the Treatment of
Women Prisoners and Non-Custodial Measures
for Women Offenders—known as the Bangkok
Rules—prohibit the placement of pregnant
or nursing women in solitary confinement.55
Nevertheless, pregnant prisoners in the
United States still find themselves in solitary
•	 In addition to the extreme psychological
harms that solitary confinement can wreak on
pregnant people, locking them in isolation can
jeopardize their access to prenatal care. Solitary
confinement impedes access to important health
care services. Many policies and practices, such
as requirements that prisoners taken to medical
appointments from solitary be shackled, are
designed with cisgender men in mind and do
not take into account the unique medical needs

ACLU: Still Worse Than Second-Class

of pregnant people. Additionally, pregnant
people in solitary confinement are often unable
to request emergency medical care, or they
may hesitate to request medical care when
such requests require them to provide intimate
medical information to correctional officers.56

Solitary confinement is used to
retaliate against or retraumatize
victims of past abuse—and can render
incarcerated women more vulnerable
to abuse by correctional officers.
•	 Women in prison report extraordinarily high
rates of past physical or sexual abuse, as well as
other traumas.57 Because a majority of women
in state prisons across the United States report
past physical or sexual abuse, the potential is
high for retraumatizing women who are already
vulnerable.58 The isolation, enforced idleness,
and absence of normal stimulation can all
contribute to further psychological deterioration
in vulnerable women. Those in solitary
confinement, especially victims of sexual abuse,

Candice Crowder, a woman who is transgender,
alleges in a lawsuit in California that she was
placed into solitary confinement for a total of
nine months shortly after reporting a violent
sexual assault. According to the complaint,
when she expressed concern about having
to exercise in the same yard as her rapist, the
corrections officer to whom she had reported
the assault placed her into solitary confinement;
she was later put back into solitary confinement
because she had been repeatedly “targeted for
assault.” Despite her bravery in speaking up
against her assailant, corrections officers treated
Ms. Crowder as the real problem by improperly
subjecting her to solitary confinement.146

“Solitary confinement does not teach discipline
or corrective behavior. It torments you and
it makes you worse. It’s inhumane and they
should do away with it.” So says Mary,* who had
problems with anxiety and mental illness even
before entering solitary confinement. Despite
being repeatedly told by corrections officers
that they would release her back into the general
population, she was forced to spend over 19
months locked in solitary confinement. Her
mental health problems worsened while she
was in solitary, and she still has severe anxiety
and panic attacks even now, years after being
released from prison.147
* This is a pseudonym to protect the privacy of a formerly
incarcerated woman.

can experience acute psychological suffering
when they are closely watched, with virtually
no privacy, by correctional officers who have
complete authority over them.59
•	 Human rights organizations have repeatedly
condemned the use of correctional officers who
are men to supervise women prisoners,60 yet
women in U.S. prisons are regularly supervised
by officers who are men at all times.61 Women
in solitary confinement can be under close
supervision during showers, when undressing,
and when using the toilet.62 The loss of privacy
experienced by people in prison is especially
damaging to the many incarcerated women
who are also victims of past sexual abuse, since
close supervision and discipline by correctional
officers can reinforce feelings of vulnerability
and can retraumatize women who have
experienced past violence.63
•	 The complete authority that correctional
officers have over the prisoners in women’s
facilities also increases the danger of staff sexual
misconduct,64 which remains an especially
serious problem in women’s facilities in spite of
increased awareness of the issue.65 According

ACLU: Still Worse Than Second-Class

to one survey, LGBTQ prisoners are over six
times as likely to be sexually assaulted as the
general prison population, with transgender
women, nonbinary people, and other gender
nonconforming prisoners at particular
risk.66 The risk of retraumatization and
sexual misconduct by correctional officers is
therefore high to all women, but it is particularly
heightened for women who are transgender,
who are also subject to extremely high rates of
solitary confinement, as explained more fully
•	 Women held in solitary confinement are also
particularly vulnerable to physical and other
types of abuse by correctional officers. The use
of excessive force, misuse of restraints and
chemical agents, abuses of power, and sexual
abuse by officers are all very real dangers
to prisoners held in solitary confinement.67
Particularly because isolation cells are separate
from the general population, such abuses can be
difficult to detect.68
•	 Correctional officials sometimes lock prisoners
in solitary confinement in retaliation for
speaking out against neglect or abusive
treatment. Again and again, stories arise in
which women who report rape and other abuse
by correctional officers are sent to solitary
confinement.69 Women who have been sexually
abused by officers are thus faced with another
painful dilemma, forced to decide between
reporting the attack and risking retaliation, or
not reporting it and risking further assault.
•	 This pattern of women reporting abuse and then
being sent to solitary confinement is not only
unjust on an individual basis, but it has also been
shown to chill reports of abuse by other prisoners
who fear the same outcome, thwarting the efforts
of prison officials who seek to remedy prisoner

Solitary confinement jeopardizes the
parent-child relationship, harming
When parents are incarcerated, maintenance of their
relationships with their children largely depends on
regular visitation.71 While prisoners may also write
letters and make limited phone calls, a child’s need to
have physical contact with a parent can be satisfied
only by in-person visits that reinforce the physical and
psychological parental bond. Contact visits—visits
during which the prisoner can actually touch or hug
her loved one—are often entirely out of the question in
solitary confinement, since a physical barrier, such as
a plexiglass partition or steel mesh window, typically
separates a prisoner from the visitor.72
As correctional facilities increasingly use video calls in
place of actual visits, especially in solitary confinement
units,73 real human contact is becoming even more out
of reach.74 And in some cases, prison and jail officials
may deny a prisoner in solitary all visits with friends
and family.
Because solitary confinement can lead to difficulty with
social interaction, some prisoners feel uncomfortable
around people and therefore reject visits even with
family members.75 Because of the importance of
regular visitation, as explained above, placement
in solitary confinement can have long-lasting
repercussions on the parent-child relationship.


ACLU: Still Worse Than Second-Class

Lydia Thornton described the mental health
care she received in solitary: a doctor “comes
to your door, knocks, and asks, and I quote, ‘Do
you need any mental health help today?’ . . . he
then says, ‘Here’s a couple of Sudoku pages
and crossword puzzles . . . have a nice day.’”
Ms. Thornton “never saw [mental health care
providers] take anyone out for a conversation in a
separate room”—not even a woman with multiple
suicide attempts who nonetheless remained
in solitary confinement. The only people she
regularly interacted with were officers—and “the
few that are human and humane fight a losing
battle.” For the others, “absolute power corrupts

Special Harms of Solitary
Confinement for Specific
Populations of Women

Girls in Solitary Confinement

Older Women in Solitary Confinement

Girls under the age of 18 are also often subjected to
solitary confinement. Experts agree that solitary
confinement is particularly damaging for children
and young adults due to their lower resilience and
heightened vulnerability.76 The federal government
agrees—the First Step Act prohibits solitary
confinement for juveniles in federal detention for
more than three hours,77 and the DOJ stated flatly
that “[j]uveniles should not be placed in restrictive
housing.”78 Even more alarming, solitary confinement
is correlated with suicidality in youth; 50 percent of
youth who died by suicide while detained did so while
in solitary confinement and 62 percent had been
in solitary confinement at some point during their
incarceration.79 In recognition of the grave danger that
solitary confinement poses to youth, United Nations
standards have prohibited its use since 1990.80

Increases in long sentences and punishing mandatory
minimums have led to an aging prison population.88 In
1993, only 1.9 percent of sentenced women prisoners
were age 55 or older; by 2013, that number was 6.3
percent.89 In 2018, data from 32 jurisdictions showed
that 13.4 percent of women in custody were over the
age of 50 and that 9.4 percent of women in solitary
confinement were over 50.90

Girls represent an increasing percentage of juveniles
in detention.81 They represent a disproportionate
share of juveniles entering the system due to minor
misdemeanors, status offenses, and family conflicts.82
The intersection of gender and other identities brings
even more girls into juvenile detention: LGBTQ youth
are more likely than other youth both to be homeless
and to enter the juvenile justice system for nonviolent
offenses,83 and LGBTQ youth of color are further
These girls enter detention with significant prior
physical and sexual trauma and mental health
problems,85 making solitary confinement especially
harrowing for them.86 The experience of solitary can
be especially retraumatizing for sex trafficking victims,
who must relive their trauma while sitting alone in a
solitary confinement cell.87

ACLU: Still Worse Than Second-Class

Older women prisoners may be at increased risk of
being placed into solitary confinement due to health
complications related to aging. For example, in one
study of 120 women prisoners over the age of 55, 69
percent found that at least one “prison activity of daily
living” was “very difficult to perform” due to physical
disability or memory loss.91 Physical difficulties
might make it impossible for them to obey orders
quickly, leading correctional officers to perceive them
as disobedient and thereby place them in solitary
Solitary confinement can wreak special havoc on
older adults. Because many prisoners in solitary
confinement lack consistent access to sunlight, they are
at risk of vitamin D deficiency and, therefore, of falls
and dangerous fractures.93 Experts recommend that
prisoners with dementia be placed in environments
with significant sensory stimuli, accessible toilets and
showers, and dedicated caregivers and case managers.94
Lack of sensory stimulation can worsen confusion and
memory loss among the elderly; hearing and visual
problems can exacerbate feelings of isolation, which
can also worsen heart disease.95 The lack of access to
medical care and environmental stimuli in solitary
confinement96 is therefore directly at odds with

appropriate elder care, especially for those individuals
with dementia.

Transgender Women in Solitary
Solitary confinement presents additional problems
for women who are transgender. “Transgender” is
“[a]n umbrella term for people whose gender identity
and/or gender expression differs from what is
typically associated with the sex they were assigned
at birth.”97 Individuals who are transgender are
incarcerated at rates much higher than those of the
general population; Black transgender women in
particular are incarcerated at 10 times the rate of the
general population.98 In most states, transgender
women are placed in men’s institutions or may be
placed in women’s institutions only if they have had
gender-confirming genital surgery. Women who are
transgender face especially high rates of physical and
sexual violence from both correctional officers and
fellow prisoners in men’s facilities.99
Instead of putting measures in place to protect
transgender women, prison staff frequently put them
in “protective custody”—solitary confinement—for
extensive periods of time. But solitary confinement
should not be a tool used to protect vulnerable
prisoners. When a transgender woman is placed in
solitary, she can be greatly harmed by the isolation
of constant lockdown; by the strip searches that are
often required any time a prisoner leaves her cell,
even just to shower; and by the lack of appropriate
medical care that often results from placement in
solitary confinement. The psychological consequences
of solitary confinement can also be particularly
devastating for transgender individuals, whom
studies have shown to be at a generally elevated risk
of suicide:100 One study showed that 14 percent of
adolescents had attempted suicide, but 30 percent to 50
percent of transgender and nonbinary adolescents had
attempted suicide.101 Further, the denial of education,
exercise, and contact visits for prisoners in protective
custody exacerbates these problems, as the conditions
of “protective custody” often mirror disciplinary

ACLU: Still Worse Than Second-Class

As reported by journalist Aviva Stahl, Daisy
Meadows, a transgender woman incarcerated
in a men’s facility in Nevada, has spent a total
of two years in solitary confinement. Her time in
solitary is due to her gender, not any threat she
poses to the institution or other prisoners: at one
point, she spent 60 days in solitary for placing
socks in a homemade bra. Other times, she was
put into involuntary protective custody—solitary
confinement—for complaining about sexual and
other forms of harassment. She decided not
to file a sexual harassment complaint when a
corrections officer told her she would be placed
back into solitary confinement if she continued
to complain. Officers continued to place her
into solitary despite the fact that she attempted
suicide numerous times while there. Ms.
Meadows’ experiences were so horrific that she
wrote, “I would rather be raped every day than be
in the hole.”149

In fact, the devastating impact of solitary confinement
on transgender people is so well recognized that the
Prison Rape Elimination Act (PREA) regulations
promulgated by the DOJ to safeguard prisoners from
the risk of sexual assault contain specific safeguards
against solitary confinement for transgender prisoners.
The regulations include other protections for
transgender individuals, such as requiring
individualized housing assessments that may be based
on a prisoner’s gender identity rather than assigned sex
at birth or physiological characteristics102 and
protecting against abusive searches of transgender
individuals.103 The regulations also specifically impose
strict limits on the use of protective custody and
require that transgender prisoners held in solitary
confinement for their own protection be moved to
alternative housing as soon as possible.104
Solitary confinement can also be used to punish
transgender women for their gender and gender
expression, such as wearing a bra.105 The threat of the
pain and torture of prolonged solitary confinement

undermines transgender women’s dignity and their
ability to live openly and safely as women.	
This kind of trauma is all too common for transgender
women in prisons and jails across the country. Because
of the damage that solitary confinement—even when
utilized in the context of “protective custody”—can
and does cause to transgender women, the DOJ has
recommended that prisons limit the use of solitary-like
conditions imposed as protective measures on this
population.106 Furthermore, as the DOJ notes, housing
assignments based on gender identity rather than sex
assigned at birth can ameliorate the need for protective
custody and therefore should be seriously considered.107

Solitary Confinement in Immigration
Immigrants may be held in immigration detention
centers or even local jails pending hearings to
determine whether they have the right to remain in
this country legally. Their detention is civil, rather than
criminal. An increasing number of people are civilly
detained pending immigration hearings rather than
released on bond or conditions of supervision.108 An
increasing number of those detained are women and
girls. In 2016, women and girls made up 14.5 percent of
the population detained by Immigration and Customs
Enforcement (ICE), a 60 percent increase since 2009.109
These detainees—many of whom are fleeing violence
and persecution—are at the mercy of ICE and the
private prison companies that often hold them.110
Despite a 2013 ICE policy purporting to limit solitary
confinement,111 its use is still rampant.112 Additionally,
in many cases ICE has failed to record and report the
use of solitary confinement, making its use difficult
to track and assess.113 The Department of Homeland
Security’s Office of Inspector General (OIG) found
that detainees were placed in solitary confinement
without adequate documentation or process.114 The OIG
expressed particular concern about delayed reporting
of detainees with mental health issues being placed
into solitary confinement.115 Women are at special risk
of being held in solitary confinement. Officers punish
some women who report sexual harassment or assault
by placing them into solitary confinement, which has

ACLU: Still Worse Than Second-Class

the effect of chilling detainees from making other
similar reports.116 Sexual assault rates in immigration
detention are high, but rates of reporting and
punishment for transgressing officers are already low.
The practice of using solitary confinement on people
who report sexual assault makes it even less likely that
women will come forward and seek to hold their abusers
Women who are transgender in ICE custody are
also generally detained with men, despite the fact
that PREA, which applies to immigration detention,
requires individualized determinations of where
transgender individuals should be housed.118 In 2017,
13 percent of transgender people in ICE custody were
held in solitary confinement for their own protection.119
One transgender woman, who came to the United
States because she feared being killed after being
gang-raped and subsequently diagnosed with HIV in
her home country, died in solitary confinement after
being beaten and given inadequate medical care.120

Reasons to Hope:
Recent Reforms Limiting the
Use of Solitary Confinement

Despite the prevalence of solitary confinement and
its detrimental effect on women, there are reasons
to hope. Some facilities now limit the use of solitary
confinement based on statutes, departmental policies,
or settlement agreements. For example:
•	 The Colorado Department of Corrections passed
regulations bringing its solitary confinement
practice more in line with the Nelson Mandela
Rules. Specifically, prisoners may be placed in
solitary confinement only if they would otherwise
“pose an imminent and substantial threat to the
security of the institution” or to other individuals
and only for up to 15 days.121 The regulations
also mandate more humane living conditions,
including access to clean clothes, running water,
medical and mental health care, and sufficient
•	 Seven states have passed legislation prohibiting
or seriously limiting the use of solitary
confinement on pregnant prisoners as well as
other vulnerable groups: Georgia,123 Maryland,124
Massachusetts,125 Montana,126 Nebraska,127
New Mexico,128 and Texas.129
•	 Pursuant to a settlement agreement with the
ACLU, Pennsylvania now significantly limits
the use of solitary confinement for pregnant
prisoners and requires medical clearance
for any placement of such people in solitary
•	 California regulations allow a pregnant prisoner
to be placed into segregated housing only if a
doctor or nurse documents that her medical
condition allows her to be so placed; she must
still receive prenatal and other medical care.131

ACLU: Still Worse Than Second-Class

•	 The state of Alabama entered into an agreement
with the DOJ that included limitations on the
placement of women into solitary confinement
or protective custody due to their risk of sexual
victimization132 or during the pendency of
an investigation into sexual harassment or
•	 New York undertook a massive overhaul of
its solitary confinement system pursuant
to a settlement agreement with the ACLU;
that agreement required the Department of
Corrections and Community Supervision to
write into its regulations a presumption that
pregnant people would not be placed into
disciplinary solitary confinement except in
extraordinary circumstances.134
•	 Many other facilities now limit the use of
solitary confinement, in general or as to specific
subpopulations such as juveniles or people
with serious mental illnesses, due to laws or
•	 There has been little judicial scrutiny of solitary
confinement practices in women’s facilities,
but rulings that limit solitary confinement in
general or for particular populations such as
those with mental illnesses or juveniles are
beneficial to women who may be subjected to
solitary confinement. The particularly harsh
toll that solitary confinement takes on those
with mental illness is receiving increased
attention from lawyers and judges across the
country. As the DOJ noted, solitary confinement
of prisoners with serious mental illness
can constitute a violation of Title II of the

Americans with Disabilities Act and the Eighth
Amendment of the U.S. Constitution, which
prohibits cruel and unusual punishments.136
Many federal courts agree with the DOJ’s
conclusions; increasingly, judges are ruling that
housing people with serious mental illness in
solitary is unconstitutional.137 As legal action
is taken, prisons have been forced to react, and
administrators across the country are beginning
to reform their practices. North Carolina now
restricts the use of disciplinary confinement to
a maximum of 30 days for serious offenses,138
and a number of Midwestern states now ban
the use of punitive segregation for some or all
prisoners due to new legislation, litigation, or


ACLU: Still Worse Than Second-Class

These developments show that an end to solitary
confinement is possible—but there is still so much more
to do. We must do whatever it takes to decrease the
harm that women and girls face in solitary confinement.


1.	 Solitary confinement is so harsh and
damaging that it should only be used
commensurate with the Nelson Mandela
Rules. Under these rules, solitary confinement
must be used only “in exceptional cases as a last
resort,” and in any case for no longer than 15 days.

use of solitary confinement will not be tolerated.
Qualified PREA auditors should also be specifically
tasked with ensuring that prisoners’ reports of
abuse are seriously investigated and that such
reports are not met with retaliatory placement in
solitary confinement.140

2.	 Solitary confinement should never be used on
particularly vulnerable populations. Pregnant
and postpartum prisoners, prisoners with mental
health or other medical problems that may be
exacerbated by placement in isolation, youth
under the age of 21, and prisoners over the age
of 55 all may be particularly harmed by solitary
confinement. Prisons must find alternative
placements for such individuals to avoid subjecting
them to those special harms.

5.	 Prisoners should undergo mental and medical
health evaluations by competent and qualified
mental and medical health practitioners to
assess their condition before and during
solitary confinement. Although practitioners
should never “clear” prisoners to be placed into
solitary confinement, they should be empowered
to override decisions to place particularly
vulnerable individuals into solitary confinement.
Practitioners should likewise be permitted to order
an individual’s removal from solitary confinement
if her physical or mental health so requires. Women
who have experienced sexual assault should be
provided appropriate mental health programming,
including counseling. Women who are vulnerable
to retraumatization should be supervised by
correctional officers who are women. While all
of these recommendations apply to transgender
people, this recommendation in particular is
especially important for transgender women
housed in men’s facilities.

3.	 Transgender women must be protected both
from violence in the general population and
from the dangers of solitary confinement.
The PREA standards should be enforced to
house transgender individuals on a case-bycase basis, including serious consideration of
placing transgender women in women’s facilities.
Corrections officials must protect vulnerable
prisoners without the use of damaging isolation.
Individuals requiring extra protection in a
correctional environment should have access to the
same programs, privileges, and services available
to prisoners in the general population.
4.	 Solitary confinement should never be imposed
as a retaliatory measure. Prisons and jails
must ensure that policy and practice abide by this
principle and that staff training and disciplinary
measures include clear regulations that retaliatory

ACLU: Still Worse Than Second-Class

6.	 Contact visits with children aged 18 and
under should be allowed for all prisoners,
and family visitation should be encouraged.
Robust visitation privileges have been shown to
have a positive impact on prisoners’ rehabilitation
and on the well-being of their children.141
Visitation with children helps create a more stable

environment for children whose lives have been
seriously upended by having a parent in prison.
7.	 All prisons and jails should be required to
have uniform written policies controlling
solitary confinement practices and
procedures. Such policies must be public
and include a written notification process to
inform prisoners of their assignment to solitary
confinement, the reason, duration, and review
opportunities; processes by which the prisoner can
earn privileges while in solitary, including access
to commissary and visitation; and the process by
which a prisoner may earn release from solitary
8.	 All prisons and jails should be required
to regularly and publicly report details
on individuals in solitary confinement,
including the number, gender, reason,
available alternatives, reason alternatives
are not utilized, duration, periodic review
details, and other information. Correctional
systems should be held to strict reporting and
accountability measures that limit, monitor, and
standardize the reasons prisoners are sent to
solitary confinement.


ACLU: Still Worse Than Second-Class

9.	 Prisoners should never be released to
the community directly from solitary
confinement. To promote successful reentry,
correctional institutions should ensure that stepdown programs to less restrictive environments
are available to all prisoners in solitary prior
to release without extending the length of an
individual’s sentence.
10.	 Immigration detention facilities must ban
the use of prolonged or indefinite isolation
in immigration detention (whether for
administrative or disciplinary reasons). Such
facilities should use solitary confinement only
when absolutely necessary and for the shortest
time possible. Furthermore, immigration
detention facilities should be prohibited without
exception from using isolation on vulnerable
populations, including those with serious mental

Conclusion and Resources

Solitary confinement is damaging to all prisoners
and detainees. Women can be particularly vulnerable
to the harms of solitary confinement. These harms
cannot be justified. Not only is solitary confinement
devastating to women, it hurts their children and can
undermine rehabilitation and women’s ability to return
to the community as productive citizens. Prisons,
jails, immigration detention facilities, and juvenile
detention facilities in the United States must cease
the unnecessary and harmful solitary confinement of

For more information and advocacy tools, visit the
following sites:
Unlock the Box
Stop Solitary
Solitary Watch
National Religious Campaign Against Torture


ACLU: Still Worse Than Second-Class


Interview subjects were identified through outreach to prisoners’ rights
advocates, both those at the ACLU and others. A total of four interviews
were conducted: three with solitary confinement survivors and one
with a licensed clinical social worker who provided mental health care
to women in solitary confinement. Survivors were asked about their
personal experiences, how solitary confinement affected their mental
health, any effects from solitary confinement that remained even after
being released from incarceration, and anything else about solitary
confinement that they knew and wanted to share. The social worker was
asked, based on her professional experience and her research, to discuss
her perspective on the effects of solitary confinement on women, what
kinds of mental health care treatment women needed access to, and
what treatment was actually provided.

2	 See Interim Report of the Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, para. 60,
Solitary Confinement, 7 Oct. 2013, United Nations General Assembly
A/68/295, available at; c.f. G.A.
Res. 70/175, The United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules) [hereinafter The
Mandela Rules] at Rule 43-44 (Dec. 17, 2015), available at https://
3	 See Amnesty International, USA: The Edge of Endurance 40 (2012),
available at
edgeofendurancecaliforniareport.pdf (discussing research on
the harmful effects of solitary confinement) [hereinafter Amnesty
International, USA: The Edge of Endurance].

See, e.g., Standards on Treatment of Prisoners, 2018 A.B.A. Sec.
Pub. Crim. Just. Sec. 23-2.6, available at https://www.americanbar.
[hereinafter ABA Standards]; The Mandela Rules, supra note 2 at Rule
45 (asserting that solitary confinement should only be used, if at all, as a
practice of last resort, used for brief periods).

5	 See U.S. Dep’t of Justice, Report and Recommendations Concerning the
Use of Restrictive Housing 99-100 (2016), available at https://www. [hereinafter DOJ
6	 See Davis v. Ayala, 135 S.Ct. 2187, 2210 (2015) (Kennedy, J., concurring).

See Joane Martel, Telling the Story: A Study in the Segregation of Women
Prisoners, 28 Soc. Just. 196, 196-197 (2001) (giving an overview of the
literature on solitary confinement and finding almost no literature
on women in solitary confinement); Cherami Wichmann & Kelly
Taylor, Federally Sentenced Women in Administrative Segregation: A
Descriptive Analysis (2004) (first quantitative study on segregation
of federally sentenced women in Canada). While until now few have
focused on the plight of women in solitary confinement, the subject
has lately begun to receive more attention. In February 2014, Orange
Is the New Black author Piper Kerman gave oral testimony before
the Senate Judiciary Committee Subcommittee on the Constitution,
Civil Rights, and Human Rights. See Official Hearing Notice/Witness
List, Reassessing Solitary Confinement II: The Human Rights, Fiscal,
and Public Safety Consequences, Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights, Feb.
25, 2014, available at
doc/02-25-14KermanTestimony.pdf [hereinafter Kerman Testimony].
Kerman’s testimony drew attention to the unique issues faced by
women in solitary confinement by telling the stories of individual
women, including those who spent long periods in solitary confinement
as punishment for minor infractions, and by noting the chilling effect
that the threat of isolation can have on women prisoners’ willingness to
report assaults and other abuses.

8	 See Incarcerated Women and Girls, The Sentencing Project (May 10,
2018), available at
incarcerated-women-and-girls/ (providing information about growth in
incarcerated women’s population from 1980 to 2016).


ACLU: Still Worse Than Second-Class


As discussed later, prisoners are nearly always housed according to
their sex as assigned at birth. “Women in prison” refers to individuals
housed in women’s facilities, which may include men who are
transgender, nonbinary people assigned female at birth, and other
gender nonconforming people. Transgender women housed in men’s
institutions are a particularly vulnerable group of women and will be
discussed separately in this report.

10	 E. Ann Carson, Bureau of Just. Stat., Prisoners in 2014 16 Tbl. 11
(2015), available at
[hereinafter Prisoners in 2014].
11	 In the late 1970s, the rate of imprisonment for women was 10 per
100,000 in the state prison system, with 49 percent being sentenced for
violent crimes. Natasha A. Frost et al., Inst. on Women & Crim. Just.,
Hard Hit: The Growth in the Imprisonment of Women 7, 10 (2006) (noting
imprisonment rate in 1977 and percent convicted of violent crimes in
1979). The imprisonment rate of women in 2014 was 65 per 100,000 and
has increased in recent years even as the rate of men imprisoned has
gone down. See Prisoners in 2014, supra note 10, at 7 n.8. However, only
37 percent of women—compared to 54 percent of men—were sentenced
for violent offenses. Id. at 16. For an analysis of the ways in which the
war on drugs has resulted in higher incarceration rates of women for
drug crimes, see generally Lenora Lapidus et al., Caught in the Net:
The Impact of Drug Policies on Women and Families (2005), available
12	 In 2004, 64.2 percent of mothers in prison reported living with their
minor children in the month prior to arrest or just prior to incarceration,
compared to 46.5 percent of fathers. Further, 41.7 percent of mothers
reported they were single parents in the month prior to arrest or
just prior to incarceration. Nearly 11 percent of mothers in custody
reported that their children were currently in foster care, compared to
2.2 percent of fathers. While 88.4 percent of fathers in prison reported
their children were being cared for by another parent, only 37 percent
of mothers in prison reported the same. Lauren E. Glaze & Laura M.
Maruschak, Bureau of Just. Stat., Parents in Prison and Their Minor
Children 2, 4, & 5 tbls. 7 & 8 (2008), available at
13	 Report of the Special Rapporteur on Violence Against Women:
Addendum, ¶ 49, Mission to the United States of America, 6 June
2011, United Nations General Assembly A/HRC/17/26/Add.5,
available at
docs/17session/A.HRC.17.26.Add.5_en.pdf [hereinafter Violence
Against Women]; Dorothy E. Roberts, Prison, Foster Care, and the
Systemic Punishment of Black Mothers, 59 UCLA L. REV. 1474, 1479-83
(2012), available at
workingpapers/59UCLALRev1474(2012).pdf (describing how the
increasing number of incarcerated Black mothers is destroying “critical
family and community ties”).
14	 Glaze & Maruschak, supra note 12, at 2.
15	 See id.
16	 Id. at 5.
17	 For an overview of how incarceration can lead to the termination of
parental rights—especially of mothers (the piece does not specifically
address transgender or gender nonconforming parents)—see Eli Hager
& Anna Flagg, How Incarcerated Parents Are Losing Their Children
Forever, The Marshall Project (Dec. 2, 2018), available at https://www. (noting that incarcerated parents who
have never been accused of child neglect or abuse are more likely to
have their rights terminated than non-incarcerated parents who have
physically or sexually assaulted their children). See also Adoption and
Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified
in scattered sections of 42 U.S.C.) (legislation incentivizing adoption
of children in foster care in the name of finding a permanent home);
Deseriee A. Kennedy, Children, Parents & the State: The Construction
of A New Family Ideology, 26 Berkeley J. Gender L. & Just. 78, 104-7
(2011), available at
uploads/2011/04/Kennedy_macro4.pdf (describing and criticizing
how ASFA, in conjunction with state laws, has increased terminations
of parental rights due to incarceration for more than 15 months);
Violence Against Women, supra note 13, at para. 49 (noting the danger
of ASFA leading to termination of parental rights of mothers who leave
their children in foster care due to incarceration).

18	 See Julie Smyth, Dual Punishment: Incarcerated Mothers and Their
Children, 3 Colum. Soc. Work Rev. 33 (2012), available at https://; Consequences for Families and Children in The
Growth of Incarceration in the United States: Exploring Causes
and Consequences 274 (2014), available at
read/18613/chapter/11; Roberts, supra note 13, at 1481-82 (noting
that “[s]eparation from imprisoned parents has serious psychological
consequences for children, including depression, anxiety, feelings of
rejection, shame, anger, guilt, and problems in school.”).
19	 See, e.g., Cyrus Ahalt et al., Reducing the Use and Impact of Solitary
Confinement in Corrections, 13 Int’l J. of Prison Health 41, 41 (2017),
available at
IJPH-08-2016-0040; The Mandela Rules, supra note 2, at Rule 44;
American Friends Service Committee, Lifetime lockdown: How Isolation
Conditions Impact Prisoner Reentry, 18-19 (2012), available at https:// [hereinafter Lifetime Lockdown].
20	 Nat’l Comm’n on Correctional Health Care, Solitary Confinement
(Isolation) (last visited Mar. 27, 2019),
solitary-confinement [hereinafter NCCHC, Solitary Confinement].
21	 See David H. Cloud et al., Public Health and Solitary Confinement in the
United States, 105 Am. J. Pub. Health 18, 20 (2015), available at https:// (describing the
lack of exposure to natural sunlight and the harsh fluorescent lights to
which prisoners are often subject in solitary confinement).
22	 See Jenny Hall, The Problem with Solitary Confinement, (Apr.
1, 2015), available at
23	 ABA Standards, supra note 4, at Sec. 23-1.0.
24	 See Fatos Kaba et al., Solitary Confinement and Risk of Self-Harm
Among Jail Inmates, 104 Am. J. Pub. Health 442, 444-45 (2014),
available at
AJPH.2013.301742 (finding that solitary confinement is significantly
correlated with self-harm) [hereinafter Kaba 2014]; Terry Kupers,
What to Do with the Survivors? Coping with the long-term effects of
isolated confinement, 35 Crim. Just. & Behavior 1005, 1005-10 (2008),
available at
what_do_with_survivors.pdf (reviewing the research on the effects
of long-term isolation and noting that about half of completed prison
suicides are committed by the small portion of the population held in
solitary at some point during their prison stay); see also Atul Gawande,
Hellhole, New Yorker (Mar. 30, 2009),
reporting/2009/03/30/090330fa_fact_gawande (describing the
harms of loneliness and severely limited social interaction, including
the story of one prisoner who, “[a]fter a few months without regular
social contact . . . started to lose his mind”).
25	 See, e.g., Katie Rose Quandt et al., Unlocking Solitary Confinement:
Ending Extreme Isolation in Nevada State Prisons 31 (2017), available
solitary_confinement_report.pdf (Nevada); Solitary Confinement in
New York State: The Facts, HALT Solitary,
(last visited Feb. 25, 2019) (New York).
26	 See, e.g., Dana Chicklas, Backlog of Rehabilitation Programs Keeps Some
Prisoners in Past Early Release Dates, Fox (May 16, 2018), available at (explaining that
in Michigan, hundreds of people were unable to access parole because
there was not sufficient space in required programming prior to their
release dates).
27	 In 2014, an estimated 80,000-100,000 individuals were held in solitary,
not including those in local jails or juvenile facilities. See The Liman
Program, Yale Law School & Ass’n of State Corr. Adm’rs, Time-In-Cell:
The Liman-ASCA 2014 National Survey of Administrative Segregation
in Prison 4 (2015), available at
28	 See Allen J. Beck, Bureau of Just. Stat., Use of Restrictive Housing in
U.S. Prisons and Jails, 2011-12 4 Tbl. 3 (2015), available at https://www.


ACLU: Still Worse Than Second-Class

29	 The percentage of women in solitary confinement is lower than that
of men—approximately 1.1 percent of prisoners in women’s facilities
are held in solitary compared with 4.2 percent of men—see The Ass’n
of State Corr. Adm’rs & The Liman Center for Pub. Interest Law, Yale
Law School, Reforming Restrictive Housing: The 2018 ASCA-Liman
Nationwide Survey of Time-in-Cell 19 Tbl 4, 21 Tbl. 5 (2018), available
embargoed_unt.pdf [hereinafter 2018 Time-in-Cell], but some states
have a much higher percentage of women in solitary confinement. For
example, Nevada holds 4.6 percent of its women prisoners in restrictive
housing. Id. at 21 Tbl. 5. Additionally, the 1.1 percent number may be
misleading because not all jurisdictions that provide information about
men in solitary confinement provide similar information about women.
Louisiana and Alaska, which have the highest percentage of men in
solitary confinement, do not provide any information about how many
women they keep in solitary confinement. Id. at 18, 20.
30	 See, e.g., Avik Roy, Who Lives in Solitary Confinement?, Forbes (Feb.
1, 2017),
31	 See, e.g., Complaint at 9, Seitz v. Allegheny Cty., No. 2:16-cv-1879CRE (W.D. Pa. Dec. 19, 2016), available at
download_file/view_inline/2943/1055 [hereinafter Seitz Complaint]
(pregnant women placed into solitary confinement for, inter alia,
possession of an extra pair of shoes and during investigation into
unfounded reports of misconduct); Testimony by the Correctional
Association of New York Before the Senate Judiciary Committee’s
Subcommittee on the Constitution, Civil Rights and Human Rights,
Reassessing Solitary Confinement, at 367 (June 19, 2012), available
at (describing challenges pregnant women in isolation
can face in trying to access medical care).
32	 See, e.g., James Ridgeway & Jean Casella, Locking Down The Mentally
Ill: Solitary Confinement Cells Have Become America’s New Asylums,
THE CRIME REP., Feb. 18, 2010, http://www.thecrimereport.
org/news/inside-criminal-justice/locking-down-the-mentallyill; Mary Beth Pfeiffer, Crazy in America: The Hidden Tragedy of
our Criminalized Mentally Ill 42-49 (2007); Jennifer R. Wynn, et
al., Correctional Ass’n of New York, Mental Health in the House
of Corrections: A Study of Mental Health Care in New York State
Prisons 48 (2004). In some places, women with mental health issues
awaiting trial in jail may be transferred to solitary confinement at a
state prison indefinitely because the cost of treating them at the jail is
too high. See Allen Arthur, Too Sick for Jail – But Not for Solitary, The
Marshall Project (Feb. 15, 2018), https://www.themarshallproject.
33	 Gay and bisexual prisoners, regardless of gender, are far more likely
to have experienced solitary confinement than cisgender straight
prisoners. See Ilan H. Meyer et al., Incarceration Rates and Traits of
Sexual Minorities in the United States: National Inmate Survey, 20112012, 107 Am. J. Pub. Health 234, 237 Tbl. 2 (2017), available at https://
34	 See, e.g., Victoria Law, For People Behind Bars, Reporting Sexual
Assault Leads to More Punishment, Just Detention Int’l (Sept. 30, 2018), (describing the cases of a number of
individuals placed in solitary confinement for reporting sexual assault,
including that of a transgender woman assaulted by corrections
officers); Kim Shayo Buchanan, Impunity: Sexual Abuse in Women’s
Prisons, 42 Harv. Civ. Rights- Civ. Liberties L. Rev. 45, 66 (2007),
available at
35	 See Alexandria M. Foster, Unfinished Uniformity in Systematic
Sentencing: Oppressive Treatment and Disproportionate Punishment
Outcomes for Black Women in Federal Prison, 6 Ind. J. Law and Soc.
Equity 267, 276 (2018), available at The
racial disparity of who gets placed into solitary confinement is far more
pronounced in women’s institutions than in men’s. For example, Black
women account for under 24 percent of the women’s prison population
but nearly 40 percent of women in solitary confinement; Black men
represent a much higher percentage of the men’s population at 42.5
percent and represent 46.1 percent of the men’s population in solitary
confinement. 2018 Time-in-Cell, supra note 29 at 23 Fig. 9-10.

36	 See Alison Shames et al., Vera Inst. of Just., Solitary Confinement:
Common Misconceptions and Emerging Safe Alternatives 14 (May
2015), available at
pdf (“In some jurisdictions, these ‘nuisance prisoners’ constitute
the majority of the people in disciplinary segregation.”); Scarlet
Kim, Taylor Pendergrass, & Helen Zelon, Boxed In: The True Cost
of Extreme Isolation in New York’s Prisons 17, 30-31, New York Civil
Liberties Union (2012), available at
37	 Joseph Shapiro et al., In Prison, Discipline Comes Down
Hardest on Women, NPR (Oct. 15, 2018), available
38	 For example, the number of individuals in restrictive housing in
Nebraska rose steadily from 2014 to 2018, despite the fact that the
Legislature outlawed the use of disciplinary segregation in 2015.
Doug Koebernick, Office of the Inspector General of the Nebraska
Correctional System 2017/2018 Annual Report 56 (2018) [hereinafter
2018 Annual Report]; Neb. Rev. St. § 83-173.03(1). In 2018, fewer than
half the people in restrictive housing were there due to a serious act of
violence; many were there solely due to alleged membership in a gang
or because prison officials believed that their presence would create
“significant risk of harm.” 2018 Annual Report at 59.
39	 See Margo Schlanger, How the ADA Regulates and Restricts Solitary
Confinement for People with Mental Disabilities, Am. Const. Soc’y
for Law and Pol’y 12, available at
edu/cgi/viewcontent.cgi?article=1123&context=other (alleging
that prisoners with mental disabilities are often placed into solitary
confinement because of behavior arising from those disabilities); Craig
Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 Crime & Delinquency 124, 149 (2003); Leena Kurki
& Norval Morris, The Purposes, Practices, and Problems of Supermax
Prisons, 28 CRIME AND JUST. 385, 411-12 (2001).
40	 See Keri Blakinger & Katelyn Morton, How Solitary Confinement
Destroys Any Hope of Sobriety, The Fix (June 13, 2016), https://www.
(describing how a woman sent to solitary confinement for using drugs
while in prison worsened in isolation).
41	 See infra notes 69-70 and accompanying text, discussing retaliatory
solitary confinement. Other factors, in addition to retaliation, mental
illness, pregnancy, and sexual assault, can also contribute to the
overuse of solitary confinement. For example, prisoners might be
identified as being potentially disruptive or a threat to safety, due to
designation as a member of a “security threat group” (a gang) or for
other reasons, and therefore placed into “administrative segregation”
as a preventive measure. Natasha A. Frost & Carlos E. Monteiro,
Nat’l Inst. of Justice, Administrative Segregation in U.S. Prisons 5, 8
(2016), available at
Prisons continue to use preventive segregation despite evidence that
it decreases safety and leads to greater security disruptions rather
than order. See Jody Sundt, The Effect of Administrative Segregation
on Prison Order and Organizational Culture, in Restrictive Housing in
the U.S.: Issues, Challenges and Future Directions 297, 307-08 (Nat’l
Inst. of Justice 2016), available at
42	 See 2018 Time-in-Cell, supra note 29 at 63.
43	 See Christie Thompson, From Solitary to the Street, The Marshall
Project (June 11, 2015), https://www.themarshallproject.
org/2015/06/11/from-solitary-to-the-street (summarizing recent
data from multiple states); Keramet Reiter, Inst. For The Study Of
Soc. Change, Parole, Snitch, Or Die: California’s Supermax Prisons
& Prisoners, 1987-2007, 49-50 (2010), available at https://www.ncjrs.
gov/App/Publications/Abstract.aspx?id=262396 (supplying data
suggesting that the rates of return to prison in California are nearly 20
percent higher for prisoners released directly from solitary confinement
compared to the average rate of all prisoners); Maureen L. O’keefe,
Co. Dept. Of Corrections, Analysis Of Colorado’s Administrative
Segregation 25, Tbl. 17 (2005), available at http://hermes.cde.state.
view (noting that, in Colorado, two-thirds of prisoners in solitary
confinement who were released directly to the community returned to

ACLU: Still Worse Than Second-Class

prison within three years, but prisoners who transitioned from solitary
confinement into the general prison population before community
re-entry experienced a 6 percent reduction in their comparative
recidivism rate for the same period); Legislative Program Review And
Investigations Committee, Recidivism In Connecticut 41, Tbl. IV-6 (2001),
available at
recidivismstudy/2001recidivisminconnecticut.pdf (finding that 92
percent of Connecticut prisoners who had been held in administrative
segregation were rearrested within three years of release, while
only 66 percent of prisoners who had not been held in administrative
segregation were rearrested in the same time period); Ombudsman’s
Report: Performance of the Mental Health Component of the Nebraska
Dep’t of Correctional Servs. as Represented by the Case of Nikko
Jenkins 33-35 (Dec. 9, 2013), available at https://nebraskalegislature.
exhibitA.pdf (discussing Nikko Jenkins, a Nebraska prisoner who
was released directly from solitary confinement into the community,
despite his years-long efforts to be reassigned to a unit that provided
mental health care, and then murdered four people).
44	 Jennifer Bronson & Marcus Berzofsky, Bureau of Just. Stat., Indicators
of Mental Health Problems Reported by Prisoners and Jail Inmates,
2011-12 4 Tbl. 2 (2017), available at
pub/pdf/imhprpji1112.pdf (34.8 percent of prisoners who are men
and 40.8 percent of men detained in jail had a “history of a mental
health problem” in 2011-12; the proportions were 65.8 percent and 67.9
percent, respectively, for women).
45	 Id.
46	 See Kaba 2014, supra note 24 at 444; Haney, supra note 39, at 149;
Stuart Grassian, Psychopathological Effects of Solitary Confinement,
140 Am. J. Psychol. 1450-51 (1983). See generally Hans Toch, Mosaic of
Despair: Human Breakdown in Prison (1992).
47	 Vera Institute, Rethinking Restrictive Housing: Lessons from Five
U.S. Jail and Prison Systems (May 2018),
48	 Amnesty International, USA: The Edge of Endurance, supra note 3, at 39
(explaining that a total of 68 women were held in the SHU at one state
prison, and that a few more solitary confinement cells were available
throughout the institution that were not included; of fewer than 100
women held in the SHU and ASU, combined, at the California Institute
for Women, 50 women suffered from documented mental illness);
see also Fatos Kaba et al., Disparities in Mental Health Referral and
Diagnosis in the New York City Jail Mental Health Service, 105 Am. J.
Pub. Health 1911, 1914 (2015), available at https://www.ncbi.nlm.nih.
gov/pmc/articles/PMC4539829/ (women in New York City jails were
more than twice as likely to be mental health patients, and people with
mental health issues are dramatically overrepresented in solitary; the
solitary confinement data was not disaggregated by gender).
49	 See Jennifer M. Reingle Gonzalez & Nadine M. Connell, Mental
Health of Prisoners: Identifying Barriers to Mental Health Treatment
and Medication Continuity, 104 Research & Practice 2328, 2331
(2014), available at
50	 Amnesty International, USA: The Edge of Endurance, supra note 3
(describing how some of the women in the California SHU were placed
in solitary for behavior that can be a sign of mental health problems);
Arthur, supra note 32 (describing how women with mental health issues
in county jails in Tennessee are sent as “safekeepers” to prison and then
placed in solitary confinement).
51	 Violence Against Women, supra note 13 at ¶ IV.C.g.	
52	 Telephone Interview with Lydia Thornton, activist and formerly
incarcerated woman (Jan. 10, 2019).
53	 Email from Lydia Thornton (Mar. 19, 2019).
54	 DOJ Report, supra note 5, at 102-03.
55	 G.A. Res. 65/229, ¶ 7(b), U.N. Doc. A/RES/65/229 (March 16, 2011)
(commonly known as the “Bangkok Rules”).
56	 See Testimony by the Correctional Association of New York Before
the Senate Judiciary Committee’s Subcommittee on the Constitution,

Civil Rights and Human Rights, supra note 31, at 367 (“[I]solation can
compromise women’s ability to fulfill their particular needs related to
reproductive health care, for instance by impeding pregnant women’s
access to critical obstetrical services, preventing them from getting
the regular exercise and movement vital for a healthy pregnancy.
Similarly, women in isolation may be dissuaded from requesting care
related to sensitive gynecological issues because they are required to
inform correction officers about details of their medical problem, may
have serious difficulty accessing appropriate medical staff when they
do reach out, may be shackled during gynecological appointments that
do occur, and will often interact with medical providers in full view of
correction officers and/or receive superficial evaluations through closed
cell doors.”); Interview with Gail Smith, Exec. Dir. CLAIM IL (May 15,
2013); Seitz Complaint, supra note 31 at 6 (describing lack of access
to necessary pregnancy care for women in solitary confinement in a
Pennsylvania jail).
57	 See Caroline Wolf Harlow, Bureau of Just. Stat., Prior Abuse Reported
by Inmates and Probationers 1 (1999), available at https://www.bjs.
gov/content/pub/pdf/parip.pdf (40 percent to 57.2 percent of women
in prison and jail reported past physical or sexual abuse; for men, the
proportions ranged from 7.2 percent to 16.1 percent); see also Office
of the Inspector General, U.S. Dep’t of Justice, Review of the Federal
Bureau of Prisons’ Management of Its Female Inmate Population 19
(2018), available at
(estimating that 90 percent of women in federal Bureau of Prisons
custody have experienced past trauma, including sexual abuse and
domestic violence) [hereinafter OIG Report].
58	 See Lapidus et al., supra note 11, at 47-48 (describing the vulnerabilities
of women in prison and in particular the phenomenon of
retraumatization experienced by incarcerated women who have been
victims of physical and sexual abuse prior to their incarceration).
59	 See Elizabeth Swavola et al., Vera Inst. of Justice, Overlooked:
Women and Jails in an Era of Reform 14 (2016), available at http://
60	 Amnesty International, USA: The Edge of Endurance, 39-40, supra note
3; The Mandela Rules Rule 52, supra note 2.
61	 See, e.g., ACLU of Michigan Sues Muskegon County Over
Unconstitutional Policies, Hazardous Conditions at Jail (Dec. 4, 2014),
(describing multiple allegations that corrections officers who were
men would watch women prisoners shower and use the toilet); see
also Brendan Fischer, Violence, Abuse, and Death at For-Profit
Prisons: A GEO Group Rap Sheet, The Center for Media and
Democracy’s PR Watch (Sept. 26, 2013),
news/2013/09/12255/violence-abuse-and-death-profit-prisons-geogroup-rap-sheet (reporting on rates of sexual abuse in private prison
62	 See Kerman Testimony, supra note 7, at 7.
63	 See Swavola, supra note 59, at 14 (describing the danger of women’s
retraumatization or PTSD due to officers who were men viewing them at
intimate moments).
64	 See Allen J. Beck et al., Bureau of Just. Stat., Sexual Victimization
Reported by Adult Correctional Authorities, 2009-11 9 (2014),
available at
pdf (despite comprising only 7 percent of the population, women
prisoners accounted for 33 percent of substantiated staff-on-inmate
sexual victimization; in local jails, corrections officers who were men
perpetrated 80 percent of such incidents).
65	 See, e.g., OIG Report, supra note 57, at 41 (describing widespread
problem of sexual assault at a federal Brooklyn detention center);
Violence Against Women, supra note 13 at Addendum, para. 34,
(describing continued sexual abuse of women in custody, both
physically forced and otherwise coerced); Buchanan, supra note 34, at
55-57 (describing sexual abuse of women including the variety of forms
the abuse takes); Elizabeth Chuck, MSNBC, ‘Frequent and severe’ sexual
violence alleged at women’s prison in Alabama, http://usnews.nbcnews.
com/_news/2012/05/23/11830574-frequent-and-severe-sexualviolence-alleged-at-womens-prison-in-alabama?lite (May 23, 2012).


ACLU: Still Worse Than Second-Class

66	 Jason Lydon et al., Coming Out of Concrete Closets: A Report
on Black & Pink’s National LGBTQ Prisoner Survey 44
(2015), available at
67	 See Daniel Moattar, Prisons Are Using Military-Grade Tear Gas to
Punish People, The Nation (Apr. 28, 2016),
(describing use of military chemical weapons on prisoners in solitary
confinement); Kurki & Morris, supra note 39, at 409; Caroline Isaacs
& Matthew Lowen, Am. Friends Serv. Comm., Buried Alive: Solitary
Confinement in Arizona’s Prisons and Jails 14 (2007).
68	 Chandra Bozelko, Solitary Confinement Is Inhumane. I Should Know
– I Spent 30 Days There, The Guardian (Apr. 28, 2016), https://www.; Isaacs & Lowen, supra note
67, at 16.
69	 See Law, supra note 34 (telling the stories of women placed into solitary
confinement for reporting sexual abuse or for being “victim-prone” due
to their status as transgender). Lisa Jaramillo served over 100 days in
solitary confinement for allegedly lying about a sexual assault. In fact,
the assault was not fabricated, and in a lawsuit for damages for multiple
sexual assaults, Ms. Jaramillo was ultimately awarded $66,000 in
damages. See Complaint in Collins v. Bustamante, 1:09-CV-00634-JCHWDS at ¶¶ 87-95 (D. N.M. 2009); Amended Final Judgment in Collins
v. Bustamante, 1:09-CV-00634-JCH-WDS at 2 (D. N.M. 2014). See also
Ortiz v. Jordan, 562 U.S. 180, 182 (2011); James Ridgeway & Jean
Casella, Woman Prisoner Sent to Solitary for Reporting Rape by Guard,
Mother Jones (May 8, 2010), available at http://www.motherjones.
com/mojo/2010/05/woman-prisoner-sent-solitary-reporting-rapeguard; Human Rights Watch, Nowhere to Hide: Retaliation Against
Women in Michigan State Prisons (1998),
reports98/women/Mich.htm [hereinafter Nowhere to Hide].
70	 Stop Prisoner Rape, The Sexual Abuse of Female Inmates in Ohio 10
(2003), available at; see also Shane Bauer,
My Four Months as a Private Prison Guard, Mother Jones (2016), (telling the
story of a transgender woman who regretted reporting sexual assault
by a correctional officer after being placed into solitary confinement and
expelled from an auto body class).
71	 See Lindsey Cramer et al., The Urban Institute, Parent-Child Visiting
Practices in Prisons and Jails: A Synthesis of Research and Practice
3-4 (Apr. 2017), available at
and_jails.pdf (summarizing literature showing beneficial effects on the
family relationship of regular contact visitation).
72	 See, e.g., DC-ADM 801, § 6(A)(5), available at https://www.cor.
Inmate%20Discipline.pdf (prisoners in disciplinary confinement in
Pennsylvania receive only one non-contact visit with family members
each month); California Corrections, Visiting a Friend or Loved One
in Prison 3, available at
inmatevisitingguidelines.pdf (prisoners in any form of segregated
housing in California have non-contact visits with glass partitions
separating them from their visitors); Va. Dep’t of Corr. Operating
Proc. 841.4(IV)(K)(3)(f), available at
about/procedures/documents/800/841-4.pdf (prisoners in restrictive
housing in Virginia are permitted only non-contact visits). See also, Eric
Lanes, The Association of Administrative Segregation Placement and
Other Risk Factors with the Self-Injury-Free Time of Male Prisoners, 48 J.
of Offender Rehab. 529, 532 (2009); Lifetime Lockdown, supra note 19,
at 26-27 (describing all visits in Arizona lockdown as non-contact and
through plexiglass and a telephone).
73	 See, e.g., Neb. Dep’t of Corr. Servs. Tecumseh State Corr. Inst.
Operational Memorandum 205.02.01 at 2, 8 (2017), available at
om_205.02.01_visiting_proccedures.pdf (prisoners in the general
population at Tecumseh State Correctional Institution in Nebraska may
receive in-person contact visits, but those in solitary confinement must
use video visitation); Ind. Dep’t of Corr. Policy 02-01-102(XVI) (2013),
available at
Visitation__8-1-2013.pdf (Indiana permits individual facilities to limit
visitation of people in segregated housing to video visits).

74	 See Shannon Simms, The End of American Prison Visits: Jails End
Face-to-Face Contact – And Families Suffer, The Guardian (Dec. 9, 2017),
available at

91	 Anne Fezcko, Dementia in the Incarcerated Elderly Adult: Innovative
Solutions to Promote Quality Care, 26 J. Am. Ass’n Nurse Practitioners
640, 642 (2014), available at

75	 See Ramin Skibba, The Hidden Danger of Solitary Confinement,
Knowable (June 22, 2018),
article/society/2018/hidden-damage-solitary-confinement (interview
with psychologist Craig Haney).

92	 Id.

76	 Am. Acad. Child & Adolescent Psychiatry, Solitary Confinement of
Juvenile Offenders (Apr. 2012), available at
Offenders.aspx; Andrew B. Clark, Juvenile Solitary Confinement as a
Form of Child Abuse, 45 J. Am. Acad. Psychiatry and the Law Online 350,
350-51 (2017), available at
77	 18 U.S.C. § 5043(b) (2018).

93	 Brie A. Williams, Older Prisoners and the Physical Health Effects
of Solitary Confinement, 106 Am. J. Pub. Health 2126, 2126 (2016),
available at
94	Fezcko, supra note 91, at 643 Fig. 1.
95	Williams, supra note 93, at 2126.
96	NCCHC, Solitary Confinement, supra note 20.

78	 DOJ Report, supra note 5, at 101.

97	GLAAD, GLAAD Media Reference Guide—Transgender (last visited Feb.
26, 2019),

79	 Sandra Simkins et al., The Harmful Use of Isolation in Juvenile
Facilities: The Need for Post-Disposition Representation, 38 Wash. Univ.
J. L. & Pol’y 241, 259 (2012), available at https://openscholarship.

98	 Nat’l Center for Transgender Equality, LGBTQ People Behind
Bars: A Guide to Understanding the Issues Facing Transgender
Prisoners and Their Legal Rights 5 (Oct. 2018), available at

80	 See G.A. Res. 45/113, The United Nations Rules for the Protection of
Juveniles Deprived of Their Liberty at Rule 67 (Dec. 14, 1990), available

99	 Even when other prisoners are the assailants, correctional officers often
purposely put LGBTQ prisoners in situations in which assault would be
likely. See Lydon et al., supra note 66, at 5.

81	 Francine T. Sherman & Annie Black, Gender Injustice: System-Level
Juvenile Justice Reforms for Girls 5 (2015), available at http://www.
Injustice_Report.pdf; the numbers are even more alarming for girls of
color, who are referred to courts and detained at rates far surpassing
their white peers. Id. at 14.
82	 Juvenile Detention Alternatives Initiative, Making Detention Reform
Work for Girls, in A Guide to Juvenile Detention Reform 7-8 (2013),
available at
83	 Office of Juvenile Justice and Delinquency Prevention,
LGBTQ Youths in the Juvenile Justice System 5 (last updated
2014), available at
84	 Juvenile Detention Alternatives Initiative, Lesbian, Gay, Bisexual and
Transgender Youth in the Juvenile Justice System in A Guide To Juvenile
Detention Reform 11 (2015), available at
85	 Id. at 10. Many girls’ involvement in the criminal justice system can be
explained by their trauma: for example, running away and engaging
in substance abuse are both common reactions of children to physical
or sexual abuse. Malika Saada Saar et al., Human Rights Project for
Girls et al., The Sexual Abuse to Prison Pipeline: The Girls’ Story
9 (2015), available at
86	 See Colleen Murphy, The Solitary Confinement of Girls in the United
States: International Law and the Eighth Amendment, 92 Tulane L. Rev.
697, 704 (2018).
87	 See, e.g., Alyssa Beck, I Was a Kid in Solitary Confinement, Juvenile
Justice Information Exchange (Aug. 30, 2017), available at https://jjie.
88	 Zachary Psick, et al., Prison Boomers: Policy Implications of Aging
Prison Populations, 131 Int’l J. Prison Health 57, 57-58 (2017), available
89	 E. Ann Carson & William J. Sabol, Bureau of Justice Statistics, Aging
of the State Prison Population, 1993-2013 6 (2016), available at https://
90	2018 Time-in-Cell, supra note 29, at 37 Fig. 14.

ACLU: Still Worse Than Second-Class

100	 Ann P. Haas et al., American Foundation for Suicide Prevention
& The Williams Institute, Suicide Attempts Among Transgender
and Gender Non-conforming Adults: Findings of the National
Transgender Discrimination Survey 14 (Jan. 2014), available at https://
101	 Russell B. Toomey et al., Transgender Adolescent Suicide
Behavior, 142 Pediatrics (2018), abstract available at
102	 28 C.F.R. § 115.42(c), (e), available at
cfr/text/28/115.42 (c) (“In deciding whether to assign a transgender
or intersex inmate to a facility for male or female inmates, and in
making other housing and programming assignments, the agency
shall consider on a case-by-case basis whether a placement would
ensure the inmate’s health and safety, and whether the placement
would present management or security problems”), (providing that
a prisoner’s personal gender identity should be taken into account
in making housing assignments). In 2016, DOJ clarified that policies
must give “serious consideration” to prisoners’ gender identity when
determining where they should be housed and may not, by policy or
practice, house prisoners based solely on genital anatomy. However, in
2018, the Bureau of Prisons announced that it would use sex assigned
at birth rather than gender identity as the “initial determination” for
housing assignment. Bureau of Prisons, Transgender Offender Manual,
Program Statement 5200.04 2 (May 11, 2018), available at https://www.
103	 28 C.F.R. § 115.15 (e) (providing that a transgender woman should not
be searched or physically examined to identify her genital status).
104	 28 C.F.R. § 115.43 (c), (e).
105	 See, e.g., Pascal Emmer et al., Hearts on a Wire Collective, This is
a Prison, Glitter is Not Allowed: Experiences of Trans and Gender
Variant People in Pennsylvania’s Prison Systems 22 (2011), available at
106	 DOJ Report, supra note 5, at 102.
107	 Id.
108	 44,000 immigrants were civilly held in immigration detention
in November 2018, almost 5,000 more than the previous year.
Spencer Ackerman, ICE Is Imprisoning a Record 44,000 People,

Daily Beast (Nov. 11, 2018),
109	 Women’s Refugee Comm’n, Migrant Rights and Justice, The
Detention of Women Seeking Asylum in the U.S. (modified 2018),
available at
110	 Most are held without any individualized determination of
dangerousness. See Human Rights Watch, Code Red: The Fatal
Consequences of Dangerously Substandard Medical Care in
Immigration Detention (2018), available at
report/2018/06/20/code-red/fatal-consequences-dangerouslysubstandard-medical-care-immigration# [hereinafter Code Red].
111	 U.S. Immigr. & Customs Enforcement, Directive 11065.1, Review of
the Use of Segregation for ICE Detainees (Sept. 4, 2013), available
112	 See, e.g., New Jersey Advocates for Immigrant Detainees, 23 Hours in
the Box: Solitary Confinement in New Jersey Immigration Detention
28-29 (June 2015), available at
pdf (describing overuse of solitary confinement in immigration
detention in New Jersey); Roque Planas, Undocumented Immigrants
Decry Solitary Confinement At Georgia Detention Center, Huffington
Post (Oct. 14, 2015),
us_561d83cbe4b0c5a1ce61044d (describing same in Georgia).
113	 Office of the Inspector General, Dep’t of Homeland Security, ICE Field
Offices Need to Improve Compliance with Oversight Requirements for
Segregation of Detainees with Mental Health Conditions 4-5 (Sept.
29, 2017), available at
assets/2017-11/OIG-17-119-Sep17.pdf [hereinafter DHS September
114	 Office of the Inspector General, Dep’t of Homeland Security, Concerns
About ICE Detainee Treatment and Care at Detention Facilities 6-7 (Dec.
11, 2017), available at
115	 DHS September Report, supra note 113, at 6.
116	 See Tom Dart, Activists Say Woman Put in Solitary After
Reporting Assault by Detention Guard, The Guardian (Feb. 15,
117	 See Alice Speri, Detained, Then Violated, The Intercept
(Apr. 11, 2018),
118	 See Letter from Kathleen M. Rice, Congresswoman, and Other
Members of Congress, to Secretary of Homeland Security Kirstjen
Nielsen (May 30, 2018), available at
to_sec_nielsen.pdf; 6 C.F.R. § 115.42.
119	 See Letter from Kathleen M. Rice, supra note 118, at 1.
120	 Rebeka Entralgo, Trans Woman Who Died in ICE Detention
Was Housed at Facility with History of Abuse Allegations, Think
Progress (Nov. 26, 2018), available at
121	 Colo. Dep’t of Corr. Admin. Reg. 650-03 § IV(A)(1)-(2), available
122	See generally Colo. Dep’t of Corr. Admin. Reg. 650-03.
123	Ga. H.B. § 345 (signed into law May 7, 2019).
124	Md. S.B. § 809 (signed into law Apr. 30, 2019).
125	Mass. Gen. Laws ch. 127, § 39A (2018).
126	 Mont. H.B. 763 (signed into law May 10, 2019).

ACLU: Still Worse Than Second-Class

127	 Neb. L.B. § 686 (signed into law May 30, 2019).
128	 N.M. H.B. § 394 (signed into law Apr. 3, 2019).
129	 Tex. H.B. 650 (signed into law May 23, 2019).
130	 Settlement Agreement at App. A 5-6, Seitz v. Allegheny Cty, No. 2:16-cv1879-CRE (W.D. Pa. Nov. 9, 2017), available at
131	 5 CDCR § 54045.11, available at
132	 Settlement Agreement 20, United States v. Alabama (M.D. Ala. May
28, 2018), available at
133	 Id. at 21.
134	 Settlement Agreement 30, Peoples v. Fischer, No. 11-CV-2694 (S.D.N.Y.
Dec. 16, 2015), available at
135	 See 2018 Time-in-Cell, supra note 29, at 60 (providing overview of
changes jurisdictions have made in limiting the use of restrictive
housing since 2014); see also V.W. ex rel. Williams v. Conway, 236
F.Supp. 3d 554, 583 (N.D.N.Y. 2017) (holding that “juveniles face
an objectively sufficiently serious risk of harm from . . . solitary
136	 Letter from Thomas E. Perez, Assistant Attorney General, and David J.
Hickton, United States Attorney, U.S. Dep’t of Justice, to Pennsylvania
Gov. Tom Corbett 1, 4 (May 31, 2013), available at http://www.justice.
(regarding the DOJ’s investigation of the State Correctional Institution
at Cresson and notifying the state of DOJ’s expanded investigation);
see also Schlanger, supra note 39 (arguing that solitary confinement of
people with mental health issues can constitute a violation of the ADA
and the Rehabilitation Act).
137	 Palakovic v. Wetzel, 854 F.3d 209, 226 (3d Cir. 2017); Braggs v. Dunn,
257 F. Supp. 3d 1171, 1214 (M.D. Ala. 2017); Hernandez v. Cty. of
Monterey, 110 F.Supp. 3d 929, 946-48 (N.D. Cal. 2015); Coleman v.
Brown, 28 F. Supp. 3d 1068, 1099 (E.D. Cal. 2014); Finley v. Huss, 723
Fed.Appx. 294, 298 (6th Cir. 2018) (plaintiff with serious mental illness
who had been placed in solitary confinement stated 8th Amendment
claim); Cmty Legal Aid Soc’y, Inc. v. Coupe, No. C.A. 15-688, 2016 WL
1055741, at *4 (D. Del. Mar. 16, 2016) (holding that plaintiffs stated valid
claim that solitary confinement of people with mental health issues
violates the Constitution and citing cases so holding); see also Williams
v. Sec’y Pa. Dep’t Corr., 848 F.3d 549, 566, 570 (holding that prolonged
solitary confinement can establish a constitutional violation, citing,
inter alia, research showing that it can cause or exacerbate mental
138	 See Ames Alexander, Amid Outcry, N.C. to Limit Use of Solitary
Confinement for Prisoners, Charlotte Observer (July 19, 2017), https://
139	 See Laura Kliewer, Do States in the Midwest Restrict the Use of Solitary
Confinement in Prisons?, Council of State Governments: Midwest (2017),
140	 The Prison Rape Elimination Act of 2003 (PREA) and its implementing
regulations, which were promulgated by the DOJ in 2012, put in place a
system for auditing the sexual abuse of prisoners in U.S. prisons, jails,
and juvenile detention facilities. In auditing PREA compliance, the
DOJ should be particularly careful to record instances of improper
assignments to solitary confinement, including retaliatory placements
in solitary. See Prison Rape Elimination Act of 2003, Pub. L. 108-79
§ (7)(d)(2)(N) (providing for “an assessment of existing Federal and
State systems for reporting incidents of prison rape, including an
assessment of whether existing systems provide an adequate assurance
of confidentiality, impartiality and the absence of reprisal”), available at
141	 See, e.g., Melinda Tasca, The Gatekeepers of Contact: Child-Caregiver
Dyads and Parental Prison Visitation, 43 Crim. Just. & Behavior
739, 739-40 (2016), available at

publication/283860970_The_Gatekeepers_of_Contact_ChildCaregiver_Dyads_and_Parental_Prison_Visitation (discussing
previous literature showing the importance of contact visits for children
of incarcerated parents). For a discussion of the negative impacts that
incarceration can have on children of incarcerated people, see Tamar
Lerer, Sentencing the Family: Recognizing the Needs of Dependent
Children in the Administration of the Criminal Justice System, 9
Northwestern J. L. & Soc. Pol’y 24, 30-35 (2013).
142	 See Code Red, supra note 110.
143	 See G.A. Res. 70/175, The United Nations Standard Minimum Rules for
the Treatment of Prisoners at Rules 43-45 and Rule 45 n.28 (adopting
G.A. Res. 45/113, The United Nations Rules for the Protection of
Juveniles Deprived of Their Liberty at Rule 67 (Dec. 1990) and G.A. Res.
65/229, ¶ 7(b), U.N. Doc. A/RES/65/229 (March 16, 2011)).
144	 Telephone interview with Tia Ryans, activist and formerly incarcerated
woman (Jan. 14, 2019).
145	 Interview with Ali Winters, DSW, licensed clinical social worker who
provided health care services to women in solitary confinement (Mar. 5,
146	 Complaint at 9-10, Crowder v. Diaz, No. 2:17-cv-01657 (E.D. Cal. Aug. 7,
147	 Telephone interview with anonymous formerly incarcerated woman
(Dec. 19, 2018).
148	 Telephone interview with Lydia Thornton, activist and formerly
incarcerated woman (Jan. 10, 2019).
149	 Aviva Stahl, The Shocking, Painful Trauma of Being a Trans Prisoner in
Solitary Confinement, Broadly (Jan. 22, 2016).


ACLU: Still Worse Than Second-Class