The Yale Law Journal

VOLUME
125
2015-2016
Forum

Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails

15 Jan 2016
Marie Gottschalk

The United States is exceptional not only because it incarcerates so many people, but also because of the inhumane and degrading conditions that prevail in so many of its jails and prisons.1 This country stands alone among Western nations in its widespread and routine use of extreme and prolonged isolation—commonly called solitary confinement—throughout its penal system.2 In the 1970s, solitary confinement emerged as a standard tool to control and punish incarcerated people in the United States.3 Human Rights Watch has characterized the proliferation of extreme segregation in super-maximum security (“supermax”) prisons and other facilities as “the most troubling development in [U.S.] corrections in recent decades.”4

The term solitary confinement is capacious. It is a shorthand way to refer to three broad categories of restrictive housing: (1) disciplinary or punitive segregation, which is imposed because of an alleged violation of the prison rules; (2) protective custody, used for people who reportedly are at special risk if placed in the general prison population, such as juveniles housed in adult prisons; and (3) administrative segregation for individuals deemed by correctional officers to pose a serious current or potential risk to other inmates and staff members. In reality, the distinction between these three types of restricted housing is often blurry. Many other countries use some form of solitary confinement to manage their inmate populations. Solitary confinement is distinctive in the United States because the isolation is comparatively prolonged, extreme, indeterminate, routine, and highly unregulated, as discussed further below.

The widespread use of solitary confinement in U.S. jails and prisons is an enormous human rights problem that has been hiding in plain sight for decades. Over the last couple of years, it has finally emerged as a major issue in criminal justice reform. Years of political activism by incarcerated people and their advocates on the outside have finally brought national and international attention to the expansive use of solitary confinement in U.S. prisons and jails. Key milestones include the 2009 establishment of Solitary Watch, a comprehensive Internet clearinghouse of articles, reports, and commentary on solitary confinement; the 2011-2013 prisoner hunger strikes against supermax facilities in California; and President Obama’s July 2014 speech to the NAACP on criminal justice reform, in which he pointedly questioned the utility of extreme isolation.5

We now have a more precise accounting of the number of people held in solitary confinement and their distribution in the U.S. penal system, as discussed in Parts I and II, and of variations in the conditions of restricted housing amongst the states, as discussed in Part III. The proliferation of solitary confinement in the United States since the 1970s is strikingly at odds with the consolidation of an international consensus against this practice, as elaborated in Part IV. For all the newfound public attention on solitary confinement, this practice remains deeply entrenched in the U.S. penal system and the obstacles to dismantling it remain formidable, as discussed in Part V.

I. new public visibility

Until recently, the widespread use of solitary confinement attracted little public attention in the United States. A reliable estimate of the total number of people held in restricted housing in U.S. prisons and jails did not exist. Most states did not release the relevant data and in many cases did not even collect it.6 Assessing the conditions of solitary confinement in U.S. jails and prisons has also been a challenge. The incarceration boom coincided with growing barriers to media, scholarly, and public access to U.S. penal facilities in general and isolation cells in particular.7 And the 1996 Prison Litigation Reform Act (PLRA) created huge, often insurmountable, obstacles for prisoners seeking redress through the courts.8 With fewer lawsuits, what had once been a vital window to expose abusive penal conditions to media and public scrutiny slammed shut.9 Supermax prisons have become “virtual domestic black sites, cut off from the public and the press, condoned by the courts, and largely ignored by elected officials.”10

In August, however, the Association of State Correctional Administrators (ASCA), in conjunction with Yale Law School’s Liman Program, released a pioneering report on prolonged isolation.11 Weeks later, the Bureau of Justice Statistics (BJS) of the U.S. Department of Justice issued an important special report on restricted housing.12 These reports are a significant step toward the transparency needed to achieve meaningful reform.

II. the extent of the problem

Extrapolating from these two reports, I calculated that U.S. jails and prisons were holding between 89,000 and 120,000 men and women in isolation on any given day in 2014.13 This is a remarkable figure. Four decades ago—on the eve of the incarceration boom that transformed the United States into the world’s leading warden—the country’s entire prison and jail population was barely two hundred thousand people.14 The total number of people that U.S. jails and prisons hold in solitary confinement today exceeds the total prison and jail populations of other major advanced industrialized democracies, including Japan (60,000), Germany (63,000), France (67,000), and the United Kingdom (86,000).15

Thanks to the ASCA-Liman and BJS studies, we finally have concrete estimates of the total size of the solitary confinement population in the United States. This is a needed development. As are the ASCA-Liman findings enumerating the considerable variations amongst the states in the extent of their reliance on solitary confinement. The proportion of inmates confined to restrictive housing at a given moment ranges from 2.1% in Montana’s prisons (which is still comparatively high compared to other Western countries) to 14.2% in Delaware’s prisons. The median is 6.6% among the reporting jurisdictions.16 Thanks to the BJS report, we now know that restricted housing has an even wider impact than the ASCA-Liman figures suggest. The BJS reported that 20% of prison inmates and 18% of jail inmates had spent time in restrictive housing over just the previous year. In short, doing some time or lots of time in extreme isolation has become a routine experience for many prisoners in the United States.

III. conditions of confinement

The ASCA-Liman report focused primarily on administrative segregation, a subset of solitary confinement that has proliferated with the rise of mass incarceration and special supermax facilities over the past four decades. Corrections administrators and guards have broad discretion to determine who is placed in administrative segregation and the specific conditions of their confinement.17

Nearly all the states that responded to the ASCA-Liman survey reported that they imposed no time limits on how long prison officials could place someone in administrative segregation before returning him or her to the general prison population.18 And three-quarters had no policies concerning the release of inmates directly from administrative segregation back to the community, a jarring transition. Some do not even track how many people go directly from administrative segregation back to the outside world. In 2013, the thirty reporting jurisdictions that collect this information released a total of 4,400 people directly from their concrete tombs to the community with no step-down program.19

The ASCA-Liman survey documents troubling racial disparities that course through administrative segregation. African-American men comprise thirty-nine percent of the total male prison population for reporting jurisdictions but forty-eight percent of the men in administrative segregation. In several states, the disparities exceeded fifteen percent.20 The racial disparities for African-American women in administrative segregation are even more striking.21 Although the overall disparities for Hispanic men and women are much smaller, some states house disproportionately more Hispanic than other men in administrative segregation by wide margins.22

The day-to-day conditions of prolonged solitary confinement can vary considerably among jurisdictions.23 Most jurisdictions reported that prisoners in administrative segregation spend twenty-three hours per day in their cells. But nearly a third reported that these prisoners spend the entire weekend locked down, denied even an hour outside their cells on Saturday or Sunday to exercise, shower, or make telephone calls. Access to outside visitors, telephone calls, radios, televisions, and air-conditioned cells vary considerably across jurisdictions and are subject to wide discretion on the part of corrections administrators and correctional officers on the frontlines. Censorship of books and magazines is commonplace.24 In one of the most notable examples, an inmate in the federal supermax prison in Florence, Colorado, had to go to court to fight for the right to read Barack Obama’s two best-selling books after prison authorities deemed that the president’s books were “potentially detrimental to national security.”25

IV. u.s. exceptionalism

For the tens of thousands of people buried alive in these concrete tombs, sealed off from nearly all human contact, these differences among jurisdictions have a significant impact on their quality of life. These differences should not, however, obscure what all of these jurisdictions have in common: None have come close to abolishing extreme and prolonged isolation, a practice that is sharply at odds with international norms. In 2011, U.N. Special Rapporteur Juan E. Méndes concluded that periods of solitary confinement greater than fifteen days constitute torture and recommended that juveniles and people with mental disabilities be exempt from any stint in isolation.26

The United States stands alone in the oversight—or lack thereof—it places on solitary confinement decisions. The Supreme Court of the United Kingdom recently characterized six months in isolation as unacceptable if not subject to regulation and oversight by the country’s top criminal justice officials.27 This decision was based on an interpretation of legislation governing prisons in Britain mandating that decisions to hold someone in isolation for an extended period of time (which it defined as more than three days) be made by the Secretary of State for Justice (a post roughly comparable to the U.S. Attorney General) and not by local prison officials. In the United States, low-level correctional officers routinely decide to put an individual in solitary confinement and keep him or her there with little oversight from wardens, let alone state directors of corrections or the U.S. Attorney General.

The United States is also exceptional with respect to the relatively long lengths of time that prisoners spend in solitary confinement. Years-long stints in administrative segregation are commonplace in the United States. Twenty-three percent of inmates housed in administrative segregation—in both state and federal prisons—have been isolated there for more than three years. An additional 19% have been isolated for one to three years. Only one-third of administrative segregation prisoners nationwide had been housed in restricted housing for less than ninety days.28 These figures likely understate the proportion of prisoners housed in administrative segregation for long periods of time. Several jurisdictions known to be leaders in the use of administrative segregation, including California and Arizona, did not answer the ASCA-Liman survey question inquiring about lengths of time served in administrative segregation. A major federal class action lawsuit filed in 2012 challenging prolonged solitary confinement in California reported that about five hundred people held at Pelican Bay State Prison, the state’s pioneering supermax facility, had surpassed ten years in solitary confinement, and seventy-eight had surpassed two decades.29 The terms of the September 2015 settlement of this lawsuit stipulate, among other things, a ten-year limit on continuous indefinite confinement in isolation for most prisoners in California.30

Recent developments at the United Nations have rendered the United States even more of an outlier on the issue of solitary confinement. Near the end of 2015, the U.N. General Assembly approved the first major revision of the Standard Minimum Rules for the Treatment of Prisoners (SMRs) since the guidelines were originally drafted in 1955. Renamed the “Mandela Rules,” the revised rules say, “[s]olitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”31 The Mandela Rules forbid indefinite or prolonged use of solitary confinement (defined as anything more than fifteen consecutive days) and restrict its use for people with mental or physical disabilities.32 During the negotiations over the Mandela Rules, the U.S. delegation sided with other countries resisting tough restrictions on long-term solitary confinement. Remarkably, the United States found itself at odds with China, which reportedly “endorsed without hesitation” a fifteen-day limit on the use of solitary confinement.33 This landmark revision of the SMRs has gone largely unnoticed in the U.S. media. Though not legally binding, the SMRs have served as the regulatory frameworks for many prison systems.34

V. the limits of reform

Although concerns about prolonged solitary confinement have escalated in the United States, corrections officials and other political leaders are a long way off from endorsing its abolition. Serious political obstacles lie in the way of serious reform. In May 2013, the U.S. Government Accountability Office (GAO) issued a report criticizing the federal prison system’s growing use of administrative segregation without proper monitoring and safeguards.35 A subsequent audit of the use of prolonged isolation in the federal prison system ended up reaching foregone conclusions. The final report recommended only minimal reforms while affirming the legitimacy and utility of prolonged isolation.36 Although President Obama raised concerns last summer about solitary confinement, with his blessing the Bureau of Prisons has continued to push forward with plans to transform a state prison in Thomson, Illinois, into the country’s second federal supermax prison. 37 Left unsaid was how many of Thomson’s high-security prisoners would end up like the high-security prisoners in ADX Florence in Colorado—housed for years, if not lifetimes, in extreme isolation.

More recently, in October 2015 the Senate Judiciary Committee approved the Sentencing Reform and Corrections Act of 2015, which would, among other things, largely abolish prolonged solitary confinement for juvenile offenders incarcerated in federal prisons.38 The number of individuals who would be affected by this change would be tiny. But the symbolic importance of the federal government rejecting solitary confinement for juveniles is enormous. In a lawsuit settlement reached with the New York Civil Liberties Union last month, New York state agreed to overhaul solitary confinement in state prisons. The agreement is expected to reduce the number of prisoners in solitary confinement by at least 25%and improve the conditions of confinement for those remaining in restrictive housing.39

Differing viewpoints among corrections officials over the utility of solitary confinement also stand in the way of reform. The ASCA-Liman report appropriately characterizes prolonged isolation as a “grave problem.”40 It also notes that the ASCA, the leading national organization for directors of corrections in the United States, has designated administrative segregation as one of its “top five critical issues.”41 Many respondents to the ASCA-Liman survey indicated an interest in reducing the number of people held in solitary confinement and their level of isolation.But unsubstantiated claims by corrections officials that decreasing the use of solitary confinement will increase violence and disorder in their facilities have been a major impediment to restricting this practice.42 Many respondents in the ASCA-Liman survey “reported that administrative segregation was effective in ensuring the safety of staff and inmates in the general population.”43 This conclusion is at odds with the findings of the 2014 National Academy of Sciences report on mass incarceration in the United States. This landmark study concluded that supermax facilities and other forms of extreme isolation “have done little or nothing to reduce system-wide prison disorder or disciplinary infractions.”44 Yet even despite extensive evidence that solitary confinement exacerbates and incubates mental illnesses, corrections administrators continue to differ widely about whether it is advisable to place mentally ill people in restricted housing.45

Some corrections officials have voiced support for reform—and emphatically so. Rick Raemisch, director of the Colorado Department of Corrections, has been an outspoken critic of solitary confinement, as was Tom Clements, his predecessor, who was murdered in 2013 by a man released directly from administrative segregation to the community. In 2011, with the support of Clements, Colorado legislators enacted pioneering legislation to restrict and regulate the use of solitary confinement.46 In 2014, Raemisch wrote a blistering New York Times op-ed about the night he spent in solitary confinement in one of his prisons. Written by someone who is part of the system, this was a rare and noteworthy example of a bold individual challenge to the ingrained punitive sensibilities of the carceral state.47

Under Raemisch’s leadership, the Colorado Department of Corrections has implemented pioneering measures to reduce the use of solitary confinement, including designating three penal facilities for the treatment of inmates with mental illnesses.48 In 2014, the department joined with supporters in the legislature and community to push through a ban on placing people with serious mental illnesses in restrictive housing, except under extraordinary circumstances.49 Last year, the department adopted a policy that forbids placing women and youthful offenders in restrictive housing.50 These policies have delivered results. Between 2011 and 2014, the proportion of men held under administrative segregation in Colorado dropped from 7.4% to 1.1%.51 During this same period, the proportion of administrative segregation prisoners fell only slightly in a little more than half the states, and remained the same or increased slightly in the rest.52 Colorado now ranks third from the bottom in the proportion of its prison population held in some form of restrictive housing in 2014.53

Colorado’s achievements are impressive. But its practices remain problematic when compared to other jurisdictions around the world. As of 2014, Colorado, a state with a population of five million people, was holding six hundred and sixty-two people in restrictive housing.54 By comparison, the United Kingdom, with a total population of sixty-four million, was holding an estimated five hundred people in isolation. Nearly all of the U.K. inmates were being held in solitary for relatively short stints—measured in days and weeks, not months and years.55

Political considerations dating back decades ago are another major obstacle. In the 1960s and 1970s, the United States was ground zero for a powerful prisoners’ rights movement that garnered widespread national and international attention.56 Indefinite lockdowns in traditional cells were one of the initial weapons of choice to quell this unrest.57 In the late 1980s and 1990s, prison administrators began deploying more sophisticated supermax facilities with state-of-the-art technology to suffocate political dissent and unrest in U.S. prisons and jails. It is often forgotten that supermaxes like Pelican Bay in California and the federal ADX in Colorado “were built with the explicit purpose of minimizing all forms of collective resistance” and political organization by people who are incarcerated.58

It is an open secret that a number of prisoners—we still do not have a good count of how many—have been banished to solitary confinement in U.S. prisons because of their actual or perceived political views and political activities.59Political and religious beliefs deemed dangerous or out of the mainstream continue to provide “cause” for subjecting prisoners to prolonged isolation —like Rastafarianism and what Burl Cain, the former warden of Louisiana’s infamous Angola prison, dismissively calls “Black Pantherism.”60 Steve Champion, an award-winning author and prisoner on death row in California, was “validated” as a gang member and banished to solitary confinement based on his possession of a Kiswahili dictionary and George Jackson’s Soledad Brother.61 And in the wake of 9/11, the federal Bureau of Prisons established Communications Management Units in a couple of federal penitentiaries. According to a lawsuit filed in 2010, these units housed predominantly Muslim prisoners. These inmates were subjected to extreme isolation “for their constitutionally protected religious beliefs, unpopular political views, or in retaliation for challenging poor treatment or other rights violations in the federal prison system.”62

The barriers to mobilizing and protesting from within U.S. prisons and jails remain extraordinarily high, which makes the 2011-13 hunger strikes in California all the more remarkable. These protests focused public attention on the plight of people in extreme isolation but also reignited correctional administrators’ fears of the potential political power of incarcerated people who band together collectively.63 They were a reminder that the line between a political organization and a gang sometimes rests in the eye of the beholder. Jeffrey Beard, who just stepped down after serving for three years as director of California’s Department of Corrections and Rehabilitation (CDCR), aggressively denounced the hunger strike leaders and sought to reframe their actions as a “gang power play” by “convicted murderers.”64

The hunger strike leadership, with key support from advocates on the outside, pursued a sophisticated political strategy that did not focus on a call for the abolition of prolonged solitary confinement in California. Their main demands called for improvements in the day-to-day conditions in solitary confinement and for the CDCR to adhere to existing rules, regulations, and court-mandated settlements regarding admission to and release from prolonged confinement. The leaders of the hunger strike also demanded that the state adopt some of the relatively more lenient policies for restricted housing that prevail in the federal prison system and some state systems.65 Corrections officials in California deny that the hunger strikes were a catalyst for a recent set of important—albeit potentially limited—reforms to restricted housing in the Golden State. Internal state documents suggest otherwise.66

Conclusion

Corrections administrators are often blamed, sometimes unfairly, for the country’s high incarceration rate. After all, they did not write the laws. As they often remind us, they have to admit everyone that the police, prosecutors, and the courts send to their gates. However, these facts obscure the reality that corrections officials retain enormous clout to shape penal policy. For example, corrections officials have considerable discretion to determine the quality of life for people incarcerated in their facilities.

They have a wide berth to abolish, or at least greatly restrict, the use of prolonged isolation. They can make the conditions of solitary confinement more lenient.

The ASCA and Yale Law School’s Liman Program have taken an important step by acknowledging that extreme isolation is a grave problem and by supporting a survey that enumerates the prevalence and conditions of administrative segregation. This is a major milestone on what remains a long road to transformative reform of solitary confinement in the United States. The recommendations of the blue-ribbon Katzenbach commission almost a decade ago still ring true today. The commission called upon the United States to intensify its efforts to “stop isolating people and ensure that segregated prisoners have regular and meaningful human contact and are free from extreme physical conditions that can cause lasting harm.”67

Marie Gottschalk is Professor of Political Science at the University of Pennsylvania. She was a member of the National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration in the United States. Her latest book is Caught: The Prison State and the Lockdown of American Politics. She is deeply grateful to the editors of the Yale Law Journal for their deft editorial assistance that made this a much better essay.

Preferred Citation: Marie Gottschalk, Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails, 125 Yale L.J. F. 253 (2016), http://www.yalelawjournal.org/forum/reforming-solitary-confinement-in-us-prisons-and-jails.