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July 11, 2009

"Prolonged Solitary Confinement and the Constitution"

The title of this post is te title of this new piece by Jules Lobel now available via SSRN.  Here is the abstract:

This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in the context of what has been deemed unacceptable by the world community. This practice of long-term solitary confinement constitutes cruel and unusual punishment and violates the due process rights of prisoners, yet the unfortunate trend in the United States has been to downplay and ignore the cruel and inhuman effects of psychological abuse to prisoners where there is no long-term physical injury.

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I am a graduate of Vanderbilt Univ. and the univ. of Virginai School of Law (J.D. 1987). I spent more than 3 years of my 8 year sentence (for non-violent, white collar convictions)in solitary confinement (or 23 hour per day lockdown in SHU with only a single cellmate). See, U.S. v. Bollin, Gormley & Tietjen, 264 F.3d 391 (4th Cir. 2001). I was released from prison in Septtember 2007. At F.M.C. - Lexington, Ky., where I was sent for a psychological evaluation in May 2008 (pulled back in off Supervised Release with no pending criminal charges!), I was kept in solitary confinement for 4 1/2 months last summer (2008), despite the fact that the prison psychologist and the Captain wanted me to be released to the general population. My Unit Manager went to the Warden, who over-ruled the psychologist and the Captain, who had known me at F.C.I. - Manchester, Ky. for 19 months. When I went back to Court on 9/3/08, I was released from the Court room, directly back to Supervised Release. I was never charged with any new crime. As a result of being so detained, I lost my job and all of my financial accounts are in default - credit cards, cell phone contract, child support, etc. If I didn't live with my Mother, I would probably be homeless now. I will probably have to declare Chapter 7 bankruptcy. If a man doesn't have psych issues before being confined in such isolation, he will as a result of it. This is cruel and unusual punishment, and the Federal Bureau of Prisons does it to people every day for little or no reason ata all. It is a huge problem, and probably violates the U.N. Convention on Torture (to which the U. S. is a party), as well as Federal statutes prohibiting torture. Someone needs to litigate a "test case" on this issue. The Bureau of Prisons even uses SHU isolation, with 23 hour per day lockdown, as "overflow housing" in high security penitentiaries, due to the lack of bed space. In one penitentiary, U.S.P.-1 Coleman, Florida, they even kept inmates in the SHU law library, because SHU was full, even though it lacks either a sink or a toilet! The 3 inmates held in the SHU law library were given plastic bags to shit in and an empty water bottle to pee in. Few people are aware of what our Government really does to people in prison.

Posted by: Jim Gormley | Jul 11, 2009 1:54:49 PM

Given the number of inmates held in solitary confinement at both state and federal prisons I find it amazing that this hasn't been litigated yet. If it has I would be very interested to know what standards have been put in place.

I don't think the CAT would be a winning claim here since CAT has exceptions for legitimate penological interests which the government would likely claim here.

Posted by: Soronel Haetir | Jul 11, 2009 2:17:53 PM

The Ninth just found that Court backs Folsom prison officials in inmate's complaint.

Published: Friday, Jul. 10, 2009 - 12:00 am | Page 3A

In a resounding victory for prison officials in California and throughout the Western states, a federal appeals court ruled Thursday that an institution's inmates may be confined to cells for months at a time, even though only some of them are to blame for heightened violence.

The irony is that prison gangs were formed for self-protection against rape and assault. By disrespecting their rights, prison officials created a monster.

Posted by: George | Jul 11, 2009 2:24:16 PM

I saw a book review on cspan today, with Paul Butler who wrote "Lets Get Free." He was also a gung ho prosecutor who got arrested, and it opened his eyes to the other side of the argument. He believes prosecutors have too much power, and even encourages jury nullification in order to bring attention to the injustice in our system.

Posted by: DLJ | Jul 11, 2009 3:31:36 PM

I don't think prison officials "create" monsters, but facilitate the creation of those who are prone to becoming monsters.

I often tossed the idea of those kept in solitary confinement for a long period of time being on the receiving end of cruel and unusual punishment.

For some people this type of punishment is neither cruel or unusual--antisocial people that is.

Posted by: Concerned | Jul 11, 2009 3:43:46 PM

Jim, please, tell us why you were assigned to solitary confinement.

Most of the reasons for solitary confinement can serve as 3 in 123D.

Solitary confinement represents criminal lover lawyer immunization from real punishment of ultra-violent assaults on prison officials and other prisoners. Now, even this kindergarten time out consequence is too much for the criminal lover lawyer. The lawyer promotes pure evil. Why? Evil creates and maintains lawyer jobs.

Prisoner assault victims should sue the prison, the inmate, and all the agents of the inmate. Any defense lawyer should be made to pay to the last button of the last shirt of his assets and those of his criminal lover agency. Scienter makes his agency of his client's extreme violence an intentional tort subject to exemplary damages.

If this compensation is not permitted by the biased, out of control, extremist, criminal lover court, the family of the victim has moral and intellectual justification to do the same to the defense lawyer as was done to their loved one. The authors of the regulations banning corporal punishment in prison should get the same. To deter.

Prison guards suing the criminal, the lawyer, and the prison will face assumption of risk and workmen's comp arguments from pro-criminal, biased judges. These biased judges will grant $million verdicts to feminists offended by an off color joke at work. Why? Because the joke causes a hostile work environment. They will not compensate male guards with life destroying head injuries inflicted by their pets, ultra-violent criminals. Why? Judges love and promote evil, the source of their job.

Posted by: Supremacy Claus | Jul 12, 2009 9:17:38 AM


I thought there was pretty much wide agreement among psychologists that isolated confinement for lengthy periods can indeed drive people crazy.

Too bad we can't do an experiment in which Concerned could be locked up alone for a "long period of time." I'd be eager to hear his views on the matter at the end of the experiment.

Posted by: John K | Jul 12, 2009 1:58:18 PM

Before I get started let me tell you that I am not a professional, I am just a mother of a son who is locked up in a hell hole of a prison. My son was frightened into taking a plea for armed robbery a crime he said he did not commit. His sentence is 10 yrs confinement with no possibility of parole and 5 years probation. He confessed to me and the judge that he did actually rob the guy, but he did not have a weapon. His court appointed attorney stated that because he was not arrested at the scene he had a chance to get rid of the weapon and Georgia law reads that even though the police did not find a weapon, he was charged with armed robbery because the two victims said he had a gun. These two victims are boyfriend and girlfriend who happen to live in the same household. The problem I have with that is there is a strong possibility that they could have collaborated there stories. I feel that the confinements in Georgia are much too long especially when the prosecutor actually has no evidence of that particular crime they are just going by what someone else has said. What can be done?

Posted by: Sandi | Jul 12, 2009 8:12:53 PM

So what to do with the inmates who are so incorrigible that they cannot be safely managed in the general population? Until that question is answered we must have admin seg.

Posted by: Steve | Jul 14, 2009 8:10:57 PM

I am not a law pro but I have a friend on death row in Texas, where he has been for going on 30 years. The past 10 years he has been on 24/7 lockdown (like all death row prisoners in TX) except for showers twice a week & rec (alone in a small cage with no sunlight) once or twice a week. This man had no history of violence before the crime for which he was sentenced to death, and has had no history of violence since, even in the hell-hole that is Texas death row. They keep them in a damp, filthy, dank 8x8 cell with only a small slit for a window, and sun does not come in, ever. He never knows what the weather is or what is going on in the outside world. He has no TV, a broken radio, hardly any books (none that he has not read), poor diet, imposed sleep deprivation via role calls every hour, and he has had NO HUMAN CONTACT for over 10 years. The list goes on but my point is, there is so much energy in terms of activism & litigation addressing the death penalty itself, that there is little left over to address the human rights violations occurring on a daily basis down there. We need to get death off the table, and eliminate solitary confinement except in violent cases, and even then it should not go on for more than a week. This is definitely cruel & unusual on so many levels, it is very difficult to understand how we continue to accept that such shameful treatment is constitutional.

Posted by: Sally | Oct 23, 2009 2:52:38 PM

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