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March 29, 2009

Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?

Solitary Today I finally found the time to read this terrific examination of solitary confinement appearing in the March 30 issue of The New Yorker.  The piece by Atul Gawande is titled "Hellhole: The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?". Here are just a few choice snippets from a piece that merits a full read:

Most hostages survived their ordeal [involving solitary confinement] although relationships, marriages, and careers were often lost.  Some found, as John McCain did, that the experience even strengthened them.  Yet none saw solitary confinement as anything less than torture.  This presents us with an awkward question: If prolonged isolation is — as research and experience have confirmed for decades — so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?...

Prison violence, it turns out, is not simply an issue of a few belligerents. In the past thirty years, the United States has quadrupled its incarceration rate but not its prison space.  Work and education programs have been cancelled, out of a belief that the pursuit of rehabilitation is pointless.  The result has been unprecedented overcrowding, along with unprecedented idleness — a nice formula for violence.  Remove a few prisoners to solitary confinement, and the violence doesn’t change.  So you remove some more, and still nothing happens. Before long, you find yourself in the position we are in today.  The United States now has five per cent of the world’s population, twenty-five per cent of its prisoners, and probably the vast majority of prisoners who are in long-term solitary confinement.

It wasn’t always like this.  The wide-scale use of isolation is, almost exclusively, a phenomenon of the past twenty years.  In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional.  Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed “serious objections” to solitary confinement...

Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax — our first institution specifically designed for mass solitary confinement — was not established until 1983, in Marion, Illinois.  In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.”  But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness.  The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.”  In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood.  By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country.  And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.

The number of prisoners in these facilities has since risen to extraordinary levels.  America now holds at least twenty-five thousand inmates in isolation in supermax prisons.  An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures.  By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well.  Mississippi alone held eighteen hundred prisoners in supermax — twelve per cent of its prisoners over all....

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation.  Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture.  For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide.  The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it.  This is the dark side of American exceptionalism.  With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago....  In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture.  And there is no clearer manifestation of this than our routine use of solitary confinement — on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

The article's efforts to draw parallels in this last paragraph to segregation and GTMO help spotlight my own belief that constitutional lawyers and policy policy groups have been complicit, at least indirectly, in the growth of solitary confinement in prison nation.  A generation ago, many civil rights lawyers and policy policy groups attacked segregation through constitutional court battles.  And, in modern times, many lawyers and public policy groups have be actively attacking GTMO, as well as just about every aspect of the death penalty.  But, while a few hundred accused terrorists and murderers have lots and lots of constitutional lawyers and activists running to court on their behalf, many thousands of lesser criminals confined to the hellhole of supermax prisons languish with very few persons even thinking about their plight, let alone fighting in court on their behalf.

Some related posts:

UPDATE: NPR's program "All Things Considered" had this segment on the article and the topic of solitary confinement.  Here is the set up:

Humans are social animals; deprived of regular contact, we lose our minds. And that's just what's happening in solitary confinement cells across the country — that according to surgeon and author Atul Gawande, whose article in the current issue of New Yorker magazine looks at the effects of extended solitary confinement. Gawande talks to host Jacki Lyden about the personal toll of solitary confinement.

March 29, 2009 at 08:45 PM | Permalink

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Oh, the poor dears.

Posted by: federalist | Mar 29, 2009 9:07:08 PM

Berman: I suggest your working a single shift in a state prison. Then talk your criminal lover gibberish.

Show us how you manage the flinging of bodily fluids, an attempt at shanking you, and repeated batteries of prisoners and guards, physical and sexual. Show us.

Posted by: Supremacy Claus | Mar 29, 2009 9:57:52 PM

Berman: Where is the evidence that solitary confinement causes any validated mental illness? A third of the prison beds are filled by straight mental patients, anyway. Thank the lawyer for preventing treatment of people needing it. Mental illness causes solitary confinement. With the lawyer protecting their rights to remain insane, and to refuse treatment, all that is left is removal.

Posted by: Supremacy Claus | Mar 29, 2009 10:13:50 PM

The first evidence that solitary confinement caused mental illness was from the Eastern State Penitentiary built in 1829 using the Quaker idea that all prisoners should be held in solitary confinement. Many of them became insane and the practice was abandoned except as a temporary punishment tactic. There have been numerous articles about this problem and there is a large body of evidence that shows that solitary confinement can both induce and aggravate mental illness.


Posted by: John Neff | Mar 29, 2009 11:02:25 PM

I am a gradaute of Vanderbilt University and the University of Virginia Law School (J.D.1987). I was convcited of white collar crimes, see, U.S. v. bollin, Gormley & Tietjen, 264 F.3d 391 (4th Cir.2001), and have never done anything violent in my life. Nevertheless, during my 8 years in the federal Bureau of Prisons, I was held in the Special Housing Unit (a/k/a, "the Hole") for 3 1/2 of those years. During my 19 months at F.C.I. - Manchester, Ky., I was held in the Hole, on 23 hour lockdown in an 8' x 12' cell for 16 out of 19 months. I was most recently released in September 2008, and am being treated for depression and suicidal ideations. Prolonged isolation in The Hole in prison is a form of psychological torture, with long-term consequences, but the public doesn't really know what goes on inside prisons and is done in their names.

Posted by: Jim Gormley | Mar 29, 2009 11:17:12 PM

If you spend much time visiting prisons you may be aware of the work ethic and work load of the prison employees. I'm always quite interested in TV programs that attempt to show how overworked the staff is. In reality' there are many employees who do one task accompanied by back ups. Lots of down time and, casual conversation etc.

This is an industry with a strong union and lots of media support for their position. "Reality
Shows" do not give the public accurate information, as most of the subjects have lots of acting skills. Don't get your information from them, you will not be informed

Posted by: beth | Mar 29, 2009 11:59:11 PM

This is yet another example of how bad public policy becomes when we treat the average or normal person instead of the individual. There is indeed research that shows that solitary confinement can be a psychologically painful experience. Just the same way people find aging, "empty nest syndrome" and other life experiences painful that others seem not to notice at all. Does this mean that solitary confinement is torture? For some people yes, for others no. Indeed, at various times in human history people subjected themselves to solitary confinement willingly (see http://en.wikipedia.org/wiki/Anchorite).

"If prolonged isolation is — as research and experience have confirmed for decades — so objectively horrifying, so intrinsically cruel." This pure BS. There is nothing intrinsically cruel about solitary confinement as a pan-human psychological matter.


Posted by: Daniel | Mar 30, 2009 1:18:42 AM

I await a reference to a scientifically validated study of the induction of a new mental illness by solitary confinement in a previously normal person, outside of stress reactions. Stress is the aim of punishment, and is normal, not a mental illness.

Perhaps, the left is pretextually using untreated mental symptoms that pre-existed and caused the confinement to further its pro-criminal agenda. Why does the left love the criminal and seeks to protect it from any measure that would lower crime? The above comment implied it, jobs. High pay, low skill work, and plenty of government jobs.

That is called Rent Seeking, a polite phrase for armed robbery.

What is next for the criminal lover left? Ban time out in the Thinking Chair outside the Kindergarten class. Why? Because it violates the human rights of the violent kindergarten student.

Again, not a word about the V word of these isolated criminals. Berman, I am sure, your local prison would extend the courtesy of allowing you to shadow or be a guard for a shift. Show us the proper left wing method of managing the feces flinging felon, the shank shoving bully, the serial rapist of fellow prisoners, the crime boss directing murders of witnesses from prison.

Posted by: Supremacy Claus | Mar 30, 2009 7:11:58 AM

I welcome a return to reasoned public discourse post-2008. Proposing prison reform and a critical analysis of the efficacy of solitary confinement is not a vote against guards and in favor of prisoners. Prison administrators (in Britain--read the article) have found that constructive alternatives work far better in "controlling" problem prisoners than does solitary confinement. Guards are ultimately safer in such a system. In the meantime, guards should be better trained, better educated, better supervised, and better paid. And psychologically screened.

Posted by: t | Mar 30, 2009 10:42:38 AM

What are you going to do with entrenched gangs such as the Mexican Mafia, the Aryan Brotherhood and other race-based prison gangs?

Posted by: federalist | Mar 30, 2009 11:06:04 AM

T: Let me understand correctly. If you give violent prisoners what they want, and "empower" them, they will not beat you up anymore. Is that what the British are saying? I bet I could do better than the British by giving the ultra-violent prisoners heroin, in prison, by having catered meals, by bringing in prostitutes, by paying them protection money for every day they do not beat up people.

I still await validated studies showing solitary confinement causes any mental disorder that did no exist before the confinement.

Posted by: Supremacy Claus | Mar 30, 2009 3:28:51 PM

We have non violent first offenders in maximum security facilities. In deed, we have non violent first offenders in solitary.

There are very violent prisoners who need this control, but we are not very good at making these determinations.

Posted by: beth | Mar 30, 2009 4:16:30 PM

"It wasn’t always like this."

Right. A lifer who committed a new crime of violence within prison once faced a serious threat of execution. Some states even had mandatory capital punishment for new murders by lifers. But Justice Blackmun said it wasn't necessary, because more restrictive confinement would do. Sumner v. Shuman, 483 U.S. 66, 84 (1987).

Posted by: Kent Scheidegger | Mar 30, 2009 5:35:11 PM

A state should have the right under the Constitution to have a mandatory death penalty for those who commit murder or attempted murder while incarcerated.

Posted by: federalist | Mar 30, 2009 5:38:54 PM

I watched a documentary on public television a couple weeks ago. Animal rights advocates were advocating for monkeys. Based on scientific studies as well as observations by the animals "keepers" the monkeys in isolation in small confined cages soon began to tear off their skin and bit themselves. The animal advocates appealed to our humanity. I never heard of advocates defending human beings before. Yes, many inmates are mentally ill and were so before being given interrogations. If they were too mentally ill to understand, they were convicted and if they are too mentally ill to do what the CO's tell them, they get put in the hole. I am really concerned about the regression of morals and plain old humanity in America in this time.

Posted by: Donna | Mar 30, 2009 8:55:50 PM

Update question: Again where are the data that solitary causes any mental illness. It causes a little stress, and people might yell. However, it is punishment. If people don't like it, let them stop raping others, flinging fluids, and engaging in additional crimes, both organized and disorganized. This is for their welfare. An alternative is the impromptu, informal header down the metal steps.

Posted by: Supremacy Claus | Mar 31, 2009 6:24:14 AM

As to the New Yorker article, the author is a left wing, biased partisan. He is writing incompetently outside his specialty of neurosurgery. The article is naive, wrongheaded, and misleading. For example, the isolated rhesus monkeys were quite healthy. Babies learn behavior by imitating. If their role model is a static cloth covered object, they will act like that. Is that considered a significant discovery, that babies imitate? We would love it if prisoners acted like a cloth covered object.

Posted by: Supremacy Claus | Mar 31, 2009 6:33:23 AM

There is a federal statute labeled the Prison Litigtion Reform Act or some such oxymoron which limits Section 1983 litigation. Someone help us out on this one.

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