"Legislative Regulation of Isolation in Prison: 2018-2021"

The title of this post is the title of this new article now on SSRN authored by Judith Resnik, Jenny E. Carroll, Skylar Albertson, Sarita Benesch and Wynne Muscatine Graham. Here is its abstract:

Legislative activity seeking to limit or abolish the use of solitary confinement (often termed “restrictive housing”) has increased in recent years.  Efforts to “stop” solitary (nationally and internationally) are underway through organizing, hunger strikes, litigation, administrative reform, and media campaigns.  The goal is to end the practice of leaving people in cells for hours, days, months, and years on end.

This paper provides an overview of recent pending and enacted legislative proposals. From 2018 to 2021, legislation aiming to limit or end the use of isolation in prison was introduced in more than half of the states and in the U.S. Congress.  As of the summer of 2021, legislators had proposed statutes in 32 states and in the U.S. Congress, and both states and the federal system have enacted a variety of provisions.

The statutes vary in scope.  Some are comprehensive and address the treatment of all people incarcerated within a prison or jail system and impose limits on the reasons that prison authorities can use to put individuals into isolation, the duration of such confinement, and/or the extent to which the conditions of isolation can depart from those in general population.  In addition, some statutes focus on the use of solitary confinement for subpopulations, such as pregnant or young people, or people who have received certain medical or mental health diagnoses.  Many statutes have reporting requirements to create some measures of transparency and data collection.  A few aim to create monitoring and oversight beyond the prison administration.

This paper hones in on examples of enactments by detailing statutes in Colorado, Massachusetts, Minnesota, New Jersey, and New York.  This paper also provides an integrated overview of the features of the various statutory regimes.  In addition, because Pennsylvania legislators invited members of the Liman Center to testify in August of 2021 on a proposed bill, the paper contextualizes the proposed Pennsylvania bill within the recent nationwide waves of legislative activity and analyzes the text of the proposed bill.  This paper also draws on other work of the Liman Center's researchers, who are part of collaborative efforts underway since 2013 to track the rules governing solitary confinement, the numbers of people held in prison in isolation, and the conditions of their confinement. Time-In-Cell 2019: A Snapshot of Restrictive Housing, published in September 2020, is the latest report documenting these efforts. It is available at: https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-cell_2019.pdf.

This legislative analysis will, we hope, be helpful in formulating and evaluating means to limit or end the use of isolation as a disciplinary or “protective” measure.  The Liman Center will also provide periodic updates of legislative activity and trends.