This article appears in the Fall 2015 issue of The American Prospect magazine. Subscribe here.
After a half-century of steep increases in imprisonment, a bipartisan consensus is finally emerging that the United States keeps too many people locked up. The current incarceration rate is four times what it was in this country in 1970 and five to ten times higher than rates today in Western Europe and other developed democracies. The cost to the American public is enormous—over $85 billion a year. In this one area, the Koch brothers and Grover Norquist agree with a broad swath of religious leaders, civil rights and civil liberties advocates, and liberal politicians. All criticize our current criminal justice policies as inhumane, ineffective, and unduly costly.
As we move away from the harshly punitive policies of recent decades, our aim shouldn’t only be cutting the rate of incarceration. We also need to ameliorate the conditions of confinement—and in fact, we’ve already begun making progress. In 2003, public concern about sexual assault in jails and prisons led to passage of the landmark Prison Rape Elimination Act, now (at long last) reflected in a nationwide regulation aimed at curbing sexual abuse.
A separate effort to reform solitary confinement is in an earlier phase. Although some states have taken steps to reform solitary, no one has yet spelled out systematically what needs to be done. That’s the goal of this article: to set out the latent principles of current reform efforts and make the case for pursuing them intensively.
In July, reform efforts received a boost when President Barack Obama denounced the overuse of solitary confinement and ordered Attorney General Loretta Lynch to conduct a thorough review. But we already know, as the president himself noted, that the current overuse of solitary “is not going to make us safer. … It’s not smart.” What we need now are guidelines for change and commitments to carrying them out.
Many of the advocates who have fought for these reforms over the past decade want to end solitary confinement entirely, not merely reduce its use and make it less harsh. We agree with that ultimate objective, but we see the reduction and amelioration of solitary as necessary steps to its eventual elimination. Even those who oppose ending solitary may agree about ending the most brutal and inhumane aspects of the practice.
The Solitary Situation
In a remarkable concurring opinion in June, in a case involving a death-row prisoner who spent the past 20 years in solitary, Justice Anthony Kennedy described the “human toll” of long isolation. Being locked up alone brings prisoners “to the edge of madness, perhaps to madness itself,” Kennedy wrote, citing a published summary of the “terrible price” that solitary exacts: “anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.” In states where data are available, such as Texas, California, and New York, half or more of all prison suicides take place in solitary confinement settings.
Humans are social animals, but life in solitary is characterized by extreme social isolation and environmental deprivation. Prisoners spend 22 to 24 hours a day in cells smaller than an average parking space, many without a window. The cells themselves are usually made of concrete blocks, while the doors are solid metal with a slot for a food tray. Thin slits in the door may allow officers to see into the cell but give the prisoner little view out. Inside, cells have a concrete platform or metal frame that serves as a bed, along with a built-in desk, shelf, stool, and a metal toilet. Prisoners sleep and eat in their cells, a foot or two from that toilet.
Typically, prisoners in solitary are allowed to leave their cell five hours a week to exercise—but exercise too, is solitary, in a bare cage or concrete enclosure not much larger than the cell itself. Bathing is limited to two or three 15-minute showers a week. Solitary prisoners move out of their cell only in handcuffs and shackles, restrained so they have to shuffle rather than walk, alongside two or more guards. Even then, they are prevented from conversing with others.
The practice of solitary confinement spread as a result of the severe institutional strains created by the rise in incarceration. Prison officials simply did the most expedient thing they could think of—they locked prisoners down. Once considered a punishment of last resort, solitary confinement soon became a regular, even commonplace feature of prison life. Beginning in 1983, many states built entire prisons—often called “supermax” prisons—dedicated to long-term solitary confinement.
Today, solitary confinement has become far too routine. Solitary is not now, if it ever was, reserved for the “worst of the worst.” Prisoners are in solitary for talking back to officers, posting on a Facebook page, or possessing too many stamps. The estimate usually offered—out-of-date but the best information available—is that on any given day, approximately 80,000 people are held in solitary confinement settings in prisons across the country. That figure understates the number of federal prisoners in solitary and does not include any of the thousands of men, women, and children subject to solitary in jails, immigration detention centers, military facilities, and juvenile justice facilities.
While some prisoners spend days or weeks in isolation, many others are subject to solitary for months, years, and even decades. A recent lawsuit in California focuses on just prisoners who have spent more than a decade in solitary; that lawsuit has several hundred plaintiffs.
Emerging Principles for Reform
Since 2010, efforts to reform solitary confinement have made headway in almost half the states. Federal class-action lawsuits have led to changes in ten states, and additional legislative and policy measures in 14 others. Some measures have been halting and piecemeal, others more thoroughgoing. In California, to take one example of a significant reform, Federal Judge Thelton Henderson banned the state from housing inmates with serious mental illness at the state supermax at Pelican Bay. Placing these inmates in solitary confinement, Henderson wrote, is “the mental equivalent of putting an asthmatic in a place with little air to breathe.”
Eight reform principles are emerging from these efforts. These principles would limit who is subject to solitary and for how long, make the conditions of confinement more humane, and provide necessary oversight of the practice.
1. Prisoners should never be subject to long-term solitary confinement when it is not truly necessary for safety and security.
Corrections officials have used solitary confinement not only to house disruptive or dangerous prisoners but also to discipline inmates for violating rules and even to provide “protective custody” for vulnerable prisoners. Some of these uses are unnecessary and counterproductive. Employing solitary confinement for protective custody discourages prisoners from reporting threats when they face such risks as assault or rape by other inmates. Instead of reporting those threats, they gamble on staying in the general prison population, and sometimes they lose. Special units for vulnerable prisoners are a better alternative.
Advocates gather in October 2013 at the Capitol in Sacramento, California, to protest the use of isolation units in state prisons. A recent lawsuit in California with several hundred plaintiffs focuses on prisoners who have spent more than a decade in solitary.
Prison officials use solitary confinement far too often to punish minor misbehavior that they could punish more appropriately through the revocation of various privileges. According to a recent report from the Vera Institute of Justice, prison officials in Illinois “found that more than 85 percent of the people released from disciplinary segregation during a one-year period had been sent there for relatively minor infractions, such as not standing for a count and using abusive language.” Similarly, in Pennsylvania, 85 percent of prisoners found guilty of “failure to obey an order” were sent to solitary confinement. Washington state has led the way in avoiding the overuse of solitary and relying on more proportionate punishments instead.
In many states, corrections department leaders don’t know why prisoners end up in solitary. They overestimate the number sent there for serious, violent misconduct. So every state needs to examine how solitary confinement is used and to create alternative practices and housing units that can equally or better serve safety and security. States that have undertaken this kind of review, such as Maine, Mississippi, and Colorado, have been able to drastically reduce the number of prisoners in solitary.
2. Solitary confinement should be used for the least time possible.
Although systematic data are unavailable, the months and years that many prisoners stay in isolation are too long. The average is nearly four years in Texas; before Illinois closed its supermax prison, the average there was six years. Prisoners and experts both report that the mental stress of solitary confinement is harder to withstand when it stretches on for years or without any limit. (In Massachusetts, prisoners can be assigned to a disciplinary term of ten years in solitary!) Where states have conducted prisoner-by-prisoner reviews, they often find that even among the prisoners housed in solitary confinement for violent acts, many could be returned safely to ordinary prison cells. Such reviews should be done frequently, and by a team that includes not just custody staff but also mental-health and case-management personnel who can make appropriate arrangements for alternative housing.
Washington state, for example, has developed what officials call an “Intensive Transition Program” for prisoners with chronic behavior problems, including repeat violence, moving them through a curriculum teaching self-control and gradually increasing opportunities for social engagement until they can safely return to the prison’s general population. Germany, where long-term solitary confinement is all but unheard of, provides a model for minimizing the practice. Prison officials there have found that when solitary confinement is used only as a last resort, and only for as long as necessary, they do not need it for more than a few days or weeks at a time, even for the most dangerous prisoners.
3. Prisoners who are particularly vulnerable to serious medical and mental-health injury should not be confined in solitary confinement for more than an emergency period.
Prisoners with serious mental illness often adapt very poorly to life in prison; they may get along badly with other prisoners and violate both significant and minor rules. They may attack others and be vulnerable to attack. For all of these reasons, they are frequently sent to solitary—indeed, they may make up as much as one-half of those subject to solitary confinement. The results can include horrendous damage. When placed in solitary, many of the mentally ill deteriorate dramatically and engage in bizarre and extreme acts of self-injury and self-destruction. At the notorious federal supermax in Florence, Colorado, a mentally ill prisoner sliced off one of his own fingers with a safety razor and ate it with his instant ramen noodles. Later, he reported the action to officers, in distress because he was a vegetarian.
Nearly every federal court to consider the question has ruled that placing individuals with serious mental illness in such conditions violates the Eighth Amendment prohibition against cruel and unusual punishment. The first wave of solitary-confinement reform has consisted of policies barring any but the shortest solitary terms for prisoners with serious mental illness.
Recent reforms have also sought to limit solitary confinement of other vulnerable prisoners. Immature brain development in people under 21 makes young inmates especially likely to be damaged by the stresses of solitary confinement. Prisoners with significant developmental or cognitive disabilities are similarly unable to cope. Solitary confinement should also be limited for prisoners who are pregnant, elderly, or chronically ill. For all these groups, the social isolation and idleness of solitary confinement, as well as the lack of access to care in segregated housing, create serious risks to health.
4. Out-of-cell time is critical.
Prisoners in solitary confinement are usually allowed less time out of their cells than are inmates of maximum-security prisons. Those in solitary get two hours, tops, a few days a week, and that time is spent alone exercising in a cage, showering, or shackled and handcuffed while being escorted by two correctional officers. In contrast, maximum-security prisoners typically have five or eight hours a day out of cell, and they can interact with other prisoners and staff during that time. Life in maximum custody remains harsh, boring, and stressful. But those extra hours out of cell and opportunities for social engagement make maximum security less damaging and more humane than solitary.
The room in this photo is used for recreation by inmates in solitary confinement at the Washington Corrections Center in Shelton, Washington.
5. Solitary confinement should not include sensory deprivation or complete social isolation.
The purpose of locking prisoners alone in their cells should be to keep everyone safe, not to make them suffer. Even the most disruptive and dangerous prisoners should have access to television, radio, books, and some social interaction. Similarly, there’s no penological reason to keep a cell brightly lit even at night, or too dim to see clearly even during the day; human health depends on daily rotation of light and dark. While many prisons do normalize lighting in solitary confinement, all prisons should. Another important reform is to give prisoners in solitary access to outdoor exercise and a window with a view of the outside: Daylight is important for mental health.
In addition, prisoners must be given a break from social isolation through increased access to phone calls, visits from friends and family, and closed-circuit television rehabilitative programming. Some prisons have also worked out ways to allow safe, regular, and meaningful human contact with custody and clinical staff as well as other prisoners. Training staff to engage with these prisoners in a positive and constructive manner is crucial.
6. When prisoners are placed in solitary confinement, they should be closely monitored by correctional and health staff.
Solitary confinement causes and exacerbates health problems. The conditions of isolation—the solid doors, low visibility inside cells, barriers to communication with health-care providers—are also obstacles to detection and treatment. As a result, some reform efforts include more frequent and in-depth medical and mental-health rounds by professional staff, allowing prisoners confidential opportunities to seek treatment and giving staff opportunities to observe prisoners and identify health problems before a crisis occurs. Again, capacity-building and enhanced training for staff are key.
7. Prisoners should be given realistic incentives and support to follow facility rules.
Once solitary is limited to genuine safety and security needs, the prisoners who get assigned to it may need help to get out and stay out. Enabling prisoners to exert some control over their environment is good for their mental well-being. So reformist state prison systems have started to define multiple privilege levels within solitary confinement and to give prisoners clear guidance about conduct needed to get from one level to the next. These step-down programs offer prisoners increasing out-of-cell time, access to group activities, and other incentives. They are often coupled with programming that helps prisoners learn and practice cognitive-behavioral techniques to reduce anger and violence. Although data on the efficacy of these programs are scarce, some prison systems report that they are reducing the number of inmates in solitary confinement and improving prisoner behavior and safety.
Experts have cautioned, however, that the participants in step-down programs are still in solitary confinement—and the psychological stresses of isolation often lead to behavior problems. For these programs to be effective, minor rule violations should cause only minor setbacks, not months of additional time in segregation. The goal should not be perfect behavior but sufficient compliance that solitary confinement is no longer needed for safety and security.
8. Empower independent oversight.
It’s all too easy for prison officials to revert to overuse of solitary confinement. Sustained reform must include mechanisms for continued observation and intervention by committed, independent reformers. People outside corrections departments—in the legislature, prisoners’ rights advocacy organizations, and other groups—need to be empowered at least to advise and ideally to oversee the reforms.
Solitary confinement has spread and grown without adequate information about the practice. That’s one of the reasons the first step in reform has often been an internal review, nearly invariably with results that surprise corrections officials. Changing a system that is hidden from view is particularly challenging. Intelligent reform requires the systematic collection and analysis of data about who is sent to solitary, why, and for how long, and what happens while they are there and afterward.
In addition, because the changes often require significant shifts in everyday prison practices, some systems are bringing in outside experts with experience in emptying solitary units to make recommendations and assist in carrying out changes. Litigation frequently empowers both the prisoners’ lawyers and independent experts to monitor and enforce remedial court decrees. One state, Colorado, has designated a group that includes prisoners’ rights advocates to advise the Department of Corrections on the proper treatment of mentally ill inmates in segregation.
THESE EIGHT EMERGING principles will drastically shrink the extent of solitary confinement and ameliorate its worst problems. The principles do not, however, include abolishing prolonged solitary confinement altogether. Abolition is the recommendation of the U.N.’s special rapporteur on torture, Juan Méndez, who wrote that prolonged solitary “can amount to cruel, inhuman or degrading treatment or punishment and even torture” and called on the international community “to impose an absolute prohibition on solitary confinement exceeding 15 consecutive days.” You don’t minimize torture—you ban it.
Stopping solitary, not reducing it, is the goal of many in the reform movement. But minimization strategies—especially working to exclude vulnerable groups such as prisoners with serious mental illness and young prisoners—have broader public appeal. Some reformers are concerned that emphasizing partial and ameliorative measures may undermine the goal of abolition. After all, if solitary is particularly inappropriate for certain populations of prisoners, does that make it appropriate for others? Will reforms entrench the practice of solitary confinement for some prisoners, even if they rule out solitary for others?
Our view is more optimistic. We see the reform and ultimately the abolition of solitary confinement as a long-term project. Shrinking the number of prisoners in solitary will help not just those who are rehoused in less-brutal conditions but also those who remain. In moving prisoners out of solitary, prison and jail officials develop alternative housing and custody strategies and facilities, which can then be extended. As Justice Kennedy implied in his opinion in June, abolishing solitary is more feasible—and may even be found to be constitutionally compelled—if “workable alternative systems for long-term confinement exist.”
Reducing the extent and harshness of solitary confinement may also have indirect political advantages. When supermax solitary units are sufficiently depopulated, their per-prisoner cost may become unsustainable politically. Solving a large part of a problem may enable officials to see how they can address the remainder—as long as the remainder continues to be perceived as a problem. It is the role of advocates to ensure that solitary confinement continues to be seen as a problem.
Reformers ought to take some satisfaction from the direction in which things are moving. The public and prison officials in state after state are embracing more humane and effective practices for prisons. If the emerging principles of reform are fully implemented, there would be many fewer prisoners left in solitary and they would face less-damaging conditions. And once we’ve gone that far, the abolition of solitary will be within reach.