A federal class-action suit settled last week in New York State will substantially improve conditions for the state’s unusually high population of prisoners in solitary confinement. It can serve as a model for corrections reform around the country.
Litigated by the New York Civil Liberties Union, the suit challenged New York’s solitary confinement practices, arguing that they constituted cruel and unusual punishment in violation of the Constitution’s Eighth Amendment. The court settlement now goes to federal district judge Shira Scheindlin for her sign-off.
If Judge Scheindlin approves the settlement and the state abides by it, the implications will be sweeping for the 4,000 people New York confines 23 hours per day in isolated concrete cells the size of a small parking space. Though New York has substantially reduced its prison population over the last 15 years, the state uses these solitary “special housing units” for close to 8 percent of those prisoners—a full 175 percent of the national rate, which is itself far too high.
The 70-page agreement includes several key changes to state prison practices, all of them consistent with the recommendations we outlined in our article, Eight Principles for Reforming Solitary Confinement published in the Prospect’s Fall issue. The state has agreed to:
· Build secure, non-isolated housing. Over the next three years, New York has agreed to move more than 1,100 people from their current long-term, 23-hours-per-day isolation units into new, less isolated housing. While security will remain high, these prisoners will be allowed out of their cells for four hours on most days. This will include time spent participating in programs and in controlled group settings.
· Keep vulnerable prisoners out of solitary confinement. The agreement amplifies special protections announced in a 2014 partial settlement of the same lawsuit, which focused on prisoners likely to be especially vulnerable to the harmful effects of isolation. Among the people moved out of solitary confinement into less isolated housing will be prisoners aged 16-17; those with developmental or intellectual disabilities; those in need of drug or behavioral therapy, and those soon to be released from prison. Pregnant prisoners will also be excluded from isolation, except in “exceptional circumstances.” This builds on New York’s existing law that excludes individuals with severe mental illnesses from solitary confinement.
· Narrow the entry route into solitary. New York agreed to reserve restrictive housing for prisoners who have committed major misconduct. Previously, a prisoner could land in solitary as punishment for violating any one of 87 rules—including, for example, being “untidy” or for possessing an unauthorized book. Under the settlement, solitary confinement cannot be used for 23 minor violations; for another 42 of the rules, first-time violations cannot lead to solitary confinement.
· Shorten solitary stints. New York has not previously capped solitary terms; prisoners are punished for rules violations with years of solitary confinement, and the average length of stay lasts more than six months. Under the agreement, assignments to solitary for most first-time, nonviolent infractions will be capped at 30 days. Except for a few serious offenses such as assault and escape, all other infractions will be limited to 90 days. New policies will also allow individuals to earn early release from solitary for good behavior and program participation.
In addition, for those who remain in restrictive housing, the agreement decreases the degree of social isolation, expanding prisoners’ access to telephone calls, reading materials, correspondence courses (at the prisoners’ expense), in-cell and audio programming, and visits. The agreement also abolishes the use of starvation punishment by ending the practice of serving inedible food, known as “the loaf.” And to help hold the state’s feet to the fire, it increases transparency and independent oversight, with monitoring by outside experts and the prisoners’ attorneys.
The agreement is hardly flawless. New York’s basic approach to solitary confinement remains punitive rather than safety-focused. No particularized finding that isolation is necessary—or even useful—for safety or security is required before a prisoner is sent to solitary. This failure to reserve isolation for significant safety and security needs is a real weakness. The agreement to cap stints in solitary confinement to 30 days, moreover, falls far short of the international human rights standard of 15 days—endorsed just last week by the U.N. General Assembly.
But the reforms in the agreement are nonetheless well worth applauding. They take aim at what has been a stubborn black mark on New York’s prisons, even as the state brought down its overall prison population. The state has slashed it prison population by more than 25 percent since 1999. The state accomplished this by shifting its drug enforcement; repealing mandatory minimum sentencing for drug offenses, and increasing access to parole. That has left New York with an incarceration rate of 3.37 per 1,000 people, ranking it 40th of the 50 states.
And even as the state has shrunk its prison population by 19,000 people, its statewide crime rate has decreased, even faster than the national average. All that has made New York a model for other states and for the federal government, as Congress mulls sentencing reforms that would affect the 13 percent of American prison population incarcerated in federal prisons.
But New York’s prison population reductions didn’t make a dent in its bloated solitary confinement rates. The recent legal settlement underscores the need for prison reform proposals to go beyond reducing prison populations and address how those prisoners are treated. We must reverse the habit of forgetting, forgiving, and even condoning the routinely inhumane conditions imposed on those who live behind prison walls.
The first step in New York and nationwide has been policies banning prisoners with serious mental illness from isolated housing. But this is far from enough. For one thing, implementation of these mental health policies has lagged. Official diagnoses of schizophrenia tend to melt away when their consequence is exclusion from solitary confinement. (Advocates describe this phenomenon, ironically, as miraculous psychiatric “cures.”)
Even if perfectly implemented, the ban on solitary confinement for the seriously mentally ill leaves far too many people in solitary. The next step is to understand that other vulnerable populations, too, need to be excluded from solitary. That’s a move New York started in 2014, in an earlier stage of the same lawsuit that settled last week. Pregnant women, people with intellectual disabilities, and adolescents are among these groups of prisoners for whom the risks of devastating harm by solitary are simply too great.
But even a strategy focused on vulnerable populations can only go so far. In recent years, advocates have used multiple strategies to push for a more wholesale approach to reduce the use of solitary confinement and improve conditions for those who remain in isolation. The New York settlement is the second recent court case to point the way. In October, California federal judge Claudia Wilken preliminarily approved a settlement that will end indeterminate solitary confinement in that state. Together, these two agreements provide the start of a roadmap for other states to follow.
The year 2015 has marked a turning point for a nation that finally, unequivocally, has recognized it has a prison problem. Bipartisan coalitions on Capitol Hill have introduced bills to reduce federal incarceration; presidential candidates are debating the issue on national television; and Barack Obama became the first president to ever visit a prison. New York’s recent settlement agreement is another small victory in the fight for prison reform. While that agreement is not a silver bullet for the problems of solitary confinement or the culture that supports mass incarceration, it’s an important milestone.