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March 22, 2014

"Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment"

The title of this post is the title of this new article by Elizabeth Bennion now available via SSRN. Here is the abstract:

"To be kept in solitude is to be kept in pain . . . and put on the road to madness." (E.O. Wilson).

The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically.  New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments.  The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities.  When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand.

Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework.  Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency.  Both the scientific and policy data suggest possible avenues for effective reform.

March 22, 2014 at 01:28 PM | Permalink


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Now this IS something that should be screamed from the highest rooftops - and it's time the US Supreme Court and/or Congress got its hands dirty and did something about it! They've colluded in this practice and similar for too long and it corrupts the ethics of penal and correctional institutions.

Posted by: peter | Mar 22, 2014 4:08:42 PM

Another upper crust academic writing from the cozy confines of the faculty lounge about how people from the lower classes (prison guards) should deal with powerful, violent and manipulative criminals who would break her neck in a nanosecond.

Posted by: Bill Otis | Mar 22, 2014 5:58:25 PM

This lawyer propaganda has been rebutted repeatedly in the Comments, yet it keeps bouncing back.


The original article for analysis and criticism.

The enhanced safety from prisoner attack will reduce stress and make some feel better. No one deteriorates from solitariness alone. They may deteriorate from the intentional withholding of treatment. But prisoners not in solitary told me, they got lippy with a prison nurse, she arbitrarily with held treatments, in retaliation. That is a problem throughout the prison, not caused by slitary confinement.

The study has never been mentioned in the article, in any public testimony, nor in any newspaper editorial. The high quality and the conclusiveness of the study make these omissions frustrating.

Posted by: Supremacy Claus | Mar 22, 2014 11:10:05 PM

Legal scholarship pretty much seems to be political puff pieces. So where do lawyers go for legal analysis and review of developing case law?

Posted by: perplexed | Mar 23, 2014 9:55:25 AM

Reasonable question, perplexed. My sense is that bar journals/magazines (e.g., ABAJ, The Champion) and like publication over the last few decades, and now blogs like this one are among the best places for lawyers to get access to traditional "legal analysis and review of developing case law."

Law reviews have long been, and are especially now, mostly a place for much longer form reflections and advocacy on legal/political/social issues that develop over years and decades, rather than weeks and months (especially for any/all matters beyond what the US Supreme Court is doing). That said, whether one agrees or disagrees with the substantive views of the above-linked piece, it is actually among the more "real-world" variants of modern legal scholarship and it ought to be of interest to any/every lawyer involved in dealing with or litigating over modern prison laws and policies. Consider this summary of the article's coverage from its introduction:

"This Article first examines the history of U.S. solitary confinement,
including why a penal system that is desperately overcrowded and underfunded
turned to a method that exacerbates both crowding and cost issues. Part III
considers the effects of isolation and sensory deprivation, drawing on both studies
of prisoners and studies of humans and animals in other contexts of isolation. It
highlights that there is increasingly no clear line between physical and
psychological harm. Part IV explains the jurisprudence surrounding the Eighth
Amendment as it applies to prison conditions and some potential improvements.
It then argues that under either the current or an improved standard, solitary
confinement (as commonly currently practiced in the United States) is cruel and
unusual. This is due to the scientific evidence that extreme isolation and sensory
deprivation constitute denial of minimum human necessities. Part V examines
alternative solutions, including evidence from recent experiments with reforming
solitary confinement programs and the effect on different policy interests. The
Article concludes with proposed changes that would appropriately balance prison
security needs with public safety, public funding, and prisoner welfare obligations
and fall short of cruel and unusual punishment prohibitions."

I think anyone who gets involved with any practical prison administration matters ought to find something useful to their work within this new article (though whether their busy jobs leave them with the time/energy needed to read it thoroughly and thoughtfully is another matter).

Posted by: Doug B. | Mar 23, 2014 11:31:11 AM


The word of the day is "handbook." Lawyers and clients going to trial should get a hold of a practice update of the specific subject in their specific state. These review the law, and court decisions and precedents. Expensive, but cheap compared to research time. They go far deeper than the internet. For example, how long would it take to learn that the sole traffic violation not getting points on insurance in Pennsylvania is speeding up to 4 mph. No one is ever charged with that because there is a leeway of 6 mph and 11 mph depending on speed limit. So in any plea negotiation, the sole way to avoid points is to plead to speeding 4 mph. That knowledge is probably nowhere on the internet. So get a "handbook" before any real world legal event takes place. The language will also be clearer and more accessible to clients.


The biggest volume of criminal law activity, one that affects close to all adults would be motor vehicle law. The trial is run according to criminal procedure, yet students will see that almost nothing they learned is useful, and nothing they see at trial has been covered in class.

This book will go through the legal activities and results of every section of the code. One may see what worked, what didn't. One may still try an innovative argument. If it is meant to change an unfair law, it cannot be called frivolous. So the other side may say, this is settled law, and the argument being made against it is frivolous, One may argue, it is to change an unfair policy, to get judge nullification if you want to put it that way.

Although, seemingly expensive, such reviews are cheap compared to the time your lawyer would charge for to do the same review. So these practice handbooks represent a minimum knowledge set from which to begin trial preparation.

Prof. Berman has shown appropriate concern/distress about drunk driving. He does not cover the biggest volume of criminal sentencing, the area affecting hundreds of millions of adults, traffic sentencing. Traffic court visits should be mandatory in Criminal Procedure class, because it will shock the students, as the money meter whirs at supersonic speed, such as $500 every 2 minutes, from a series of plea agreements.

Posted by: Supremacy Claus | Mar 23, 2014 1:05:58 PM

"Legal scholarship pretty much seems to be political puff pieces."

Another reasonable question is where this conclusion that "scholarship," not articles in newspapers and popular magazines, are "puff pieces" come from? This in response to a blog post that posts a fifty-seven page analysis.

Anyway, the last two comments were helpful.

Posted by: Joe | Mar 23, 2014 2:05:45 PM

You may be surprised to know how solitary confinement is used and who is confined there. Non-violent inmates are frequently put in solitary confinement. Nonviolent inmates are also held for many years in high security USPs.

Posted by: beth | Mar 23, 2014 3:01:15 PM

Beth. You are implying some unfair punishment. How many of the referrals to solitary are to benefit the welfare of the person, for protection, and to benefit them by relieving their fear for their life? Actually beneficial, rewarding and ending their severe stress in general population.

Then of those who are sent for extreme violence or attacks on guards, how many of those attacks are intentionally done to escape a contract on their life they have heard about, meaning the prisoner acts up in a phony way, to intentionally get sent to solitary for safety?

Posted by: Supremacy Claus | Mar 24, 2014 7:54:07 AM

In the federal system there is no way to know. Security level is the sole discretion of the BOP. In individual ficilities - that's the warden.

Posted by: beth | Mar 25, 2014 10:56:01 AM

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