Solitary Confinement: Effects, Practices, and Pathways Towards Reform 9780190947927, 0190947926

Table of contents :
Cover
Solitary Confinement
Copyright
Contents
Contributors
Acknowledgments
1. Solitary Confinement—​From Extreme Isolation to Prison Reform
I. TWO CENTURIES OF SOLITARY CONFINEMENT
2. Solitary Confinement—​Effects and Practices from the Nineteenth Century until Today
3. Global Perspectives on Solitary Confinement—​Practices and Reforms Worldwide
4. Solitary Confinement across Borders
5. The Rise of Supermax Imprisonment in the United States
6. Not Isolating Isolation
7. Torture, Solitary Confinement, and International Law
II. MIND, BODY, AND SOUL— THE HARMS AND EXPERIENCE OF SOLITARY CONFINEMENT
8. Solitary Confinement, Loneliness, and Psychological Harm
9. First Do No Harm: Applying the Harms-​to-​Benefits Patient Safety Framework to Solitary Confinement
10. Mythbusting Solitary Confinement in Jail
11. Social Isolation, Loneliness, and Health
12. The Brain in Isolation: A Neuroscientist’s Perspective on Solitary Confinement
13. Use of Animals to Study the Neurobiological Effects of Isolation: Historical and Current Perspectives
14. Sharing Experiences of Solitary Confinement—​Prisoners and Staff
III. PRISON REFORM, PRISON LITIGATION, AND HUMAN RIGHTS
15. The Management of High-​Security Prisoners: Alternatives to Solitary Confinement
16. Resisting Supermax: Rediscovering a Humane Approach to the Management of High-​Risk Prisoners
17. Prisoners’ Association as an Alternative to Solitary Confinement—​Lessons Learned from a Norwegian High-​Security Prison
18. Colorado Ends Prolonged, Indeterminate Solitary Confinement
19. Reflections on North Dakota’s Sustained Solitary Confinement Reform
20. Solitary Confinement in Canada
21. “Loneliness Is a Destroyer of Humanity”
22. Litigation to End Indeterminate Solitary Confinement in California: The Role of Interdisciplinary and Comparative Experts
Index

Citation preview

Solitary Confinement

Solitary Confinement Effects, Practices, and Pathways toward Reform EDITED BY JULES LOBEL A N D P E T E R S C HA R F F   SM I T H

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Lobel, Jules, editor. | Smith, Peter Scharff, 1971– editor. Title: Solitary confinement : effects, practices, and pathways toward reform / edited by Jules Lobel   and Peter Scharff Smith. Description: New York, New York : Oxford University Press, 2020. | Includes bibliographical references   and index. Identifiers: LCCN 2019030826 (print) | LCCN 2019030827 (ebook) | ISBN 9780190947927 (hb) |   ISBN 9780190947934 | ISBN 9780190947958 (epub) | ISBN 9780190947941 Subjects: LCSH: Solitary confinement. | Prisons. Classification: LCC HV8728 .R66 2019 (print) | LCC HV8728 (ebook) | DDC 365/.644—dc23 LC record available at https://lccn.loc.gov/2019030826 LC ebook record available at https://lccn.loc.gov/2019030827 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

Contents Contributors Acknowledgments

vii ix

1. Solitary Confinement—​From Extreme Isolation to Prison Reform Jules Lobel and Peter Scharff Smith

1

I .   T WO C E N T U R I E S O F S O L I TA RY C O N F I N E M E N T

2. Solitary Confinement—​Effects and Practices from the Nineteenth Century until Today Peter Scharff Smith

21

3. Global Perspectives on Solitary Confinement—​Practices and Reforms Worldwide Manfred Nowak

43

4. Solitary Confinement across Borders Sharon Shalev

59

5. The Rise of Supermax Imprisonment in the United States Keramet Reiter

77

6. Not Isolating Isolation Judith Resnik

89

7. Torture, Solitary Confinement, and International Law Juan E. Méndez

117

I I .   M I N D, B O DY, A N D S O U L — T ​ H E HA R M S A N D E X P E R I E N C E O F S O L I TA RY C O N F I N E M E N T 8. Solitary Confinement, Loneliness, and Psychological Harm Craig Haney 9. First Do No Harm: Applying the Harms-​to-​Benefits Patient Safety Framework to Solitary Confinement Brie Williams and Cyrus Ahalt 10. Mythbusting Solitary Confinement in Jail Homer Venters

129

153 173

vi Contents

11. Social Isolation, Loneliness, and Health Louise Hawkley

185

12. The Brain in Isolation: A Neuroscientist’s Perspective on Solitary Confinement Huda Akil

199

13. Use of Animals to Study the Neurobiological Effects of Isolation: Historical and Current Perspectives Michael J. Zigmond and Richard Jay Smeyne

221

14. Sharing Experiences of Solitary Confinement—​Prisoners and Staff Robert King, Dolores Canales, Jack Morris, and Armondo Sosa

243

I I I .   P R I S O N R E F O R M , P R I S O N L I T IG AT IO N , A N D H UM A N   R IG H T S

15. The Management of High-​Security Prisoners: Alternatives to Solitary Confinement Andrew Coyle

259

16. Resisting Supermax: Rediscovering a Humane Approach to the Management of High-​Risk Prisoners Jamie Bennett

279

17. Prisoners’ Association as an Alternative to Solitary Confinement—​ Lessons Learned from a Norwegian High-​Security Prison 297 Are Høidal 18. Colorado Ends Prolonged, Indeterminate Solitary Confinement Rick Raemisch 19. Reflections on North Dakota’s Sustained Solitary Confinement Reform Leann K. Bertsch

311

325

20. Solitary Confinement in Canada Joseph J. Arvay and Alison M. Latimer

335

21. “Loneliness Is a Destroyer of Humanity” Amy Fettig and David C. Fathi

343

22. Litigation to End Indeterminate Solitary Confinement in California: The Role of Interdisciplinary and Comparative Experts Jules Lobel

353

Index

373

Contributors Cyrus Ahalt, MPP, Associate Director of The Criminal Justice & Health Program, University of California, San Francisco Huda Akil, PhD, Gardner Quarton Distinguished University Professor of Neuroscience and Psychiatry and Co-​Director, Molecular & Behavioral Neuroscience Institute (MBNI), University of Michigan Joseph J. Arvay, Partner and founder of Arvay Finlay LLP Jamie Bennett, Deputy Director, HM Prison Service; former governor, HMP Grendon and Springhill (2012–19), and Research Associate, University of Oxford Leann K. Bertsch, Director, North Dakota Department of Corrections and Rehabilitation Dolores Canales, Co-​Founder and one of the leaders of California Families to Abolish Solitary Confinement Andrew Coyle, Emeritus Professor of Prison Studies, University of London; Founding Director, International Centre for Prison Studies in the School of Law, Kings College London; and Former Senior Administrator, United Kingdom Prison Service David C. Fathi, Director, National Prison Project of the American Civil Liberties Union Foundation Amy Fettig, Deputy Director, National Prison Project of the American Civil Liberties Union Foundation; Director, Stop Solitary Campaign Craig Haney, Distinguished Professor of Psychology, the University of California, Santa Cruz Louise Hawkley, Senior Research Scientist, NORC at the University of Chicago Are Høidal, Governor, Halden Prison Robert King, One of the Angola Three prisoners held in solitary confinement for almost twenty years in Louisiana’s Angola prison Alison M. Latimer, Partner, Arvay Finlay LLP Jules Lobel, Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School; Co-​operating Attorney and Former President of the Board, Center for Constitutional Rights

viii Contributors Juan E. Méndez, Professor of Human Rights Law in Residence, Washington College of Law, American University Jack Morris, Former California prisoner at the Pelican Bay SHU, held in solitary confinement for thirty-​five years Manfred Nowak, Professor of law, University of Vienna and Secretary General of the Global Campus of Human Rights in Venice Rick Raemisch, Executive Director, Colorado Department of Corrections, 2013–​2018 Keramet Reiter, Associate Professor, Department of Criminology, Law & Society, and School of Law at the University of California, Irvine Judith Resnik, Arthur Liman Professor of Law, Yale Law School Peter Scharff Smith, Professor in Sociology of Law, Department of Criminology & Sociology of Law, Faculty of Law, Oslo University Sharon Shalev, Research Associate, the Centre for Criminology, University of Oxford Richard Jay Smeyne, Professor, Thomas Jefferson University, Jack & Vickie Farber Institute for Neuroscience, Department of Neuroscience Armando Sosa, Lieutenant, Colorado State Penitentiary Homer Venters, MD, MS, Former Chief Medical Officer, Correctional Health Services, New  York City Health and Hospital System; Senior Health and Justice Fellow at Community Oriented Correctional Health Services and Clinical Associate Professor, New York University College of Global Public Health Brie Williams, MD, MS, Professor of Medicine, University of California, San Francisco, Division of Geriatrics (UCSF), Director of the Criminal Justice and Health Program at UCSF Michael J. Zigmond, Professor of Neurology, Psychiatry, and Neurobiology, the University of Pittsburgh

Acknowledgments This book is the product of the collaborative efforts of many people who have worked tirelessly in different ways to reform and eventually end the practice of prolonged solitary confinement throughout the world. First we want to thank all the authors who agreed to contribute essays to this book, and whose collective work has helped produce a movement challenging the use of solitary confinement in prison systems. We also want to acknowledge and thank those at the University of Pittsburgh who helped put on the interdisciplinary and comparative conference on solitary confinement at the University of Pittsburgh School of Law, which this book is an outgrowth of, particularly Dean Chip Carter who was an early and vital supporter of the project, and Cori Parise, Sara Barca, Patty Blake, Kim Getz, and LuAnn Driscoll, who provided critical administrative support for the conference. We thank Professor Ronald Brand, who heads the Center for International Legal Education at the University of Pittsburgh School of Law, for providing financial support for the conference and first putting us in touch with Oxford University Press. We thank Professor Brie Williams at the University of California at San Francisco Medical Center for providing financial support and encouragement for the conference, and Professor Michael Zigmond at the University of Pittsburgh for providing financial support and more importantly connecting us with other wonderful neuroscientists such as Professor Huda Akil. In addition, we thank the many prisoners and their on-​the-​ground activist supporters such as Dolores Canales, whose struggle and activism has inspired the academic and human rights community to better understand the suffering solitary confinement causes and the pathways to reforming and ending the practice. For help preparing an index for the book we would like to thank Marina Hiller Foshaugen and Amanda Vik Andersen at the University of Oslo, and we thank the staff at the Document Technology Center at the University of Pittsburgh School of Law for helping to prepare the manuscript. Finally, we want to thank the editors at Oxford University Press for their excellent work in editing and shepherding this project to completion. Professor Lobel also thanks his colleagues at the Center for Constitutional Rights, Rachel Meeropol, Sam Miller, and Alexi Agathocleous, whose work and collaboration on the Ashker v. Brown case has been so important and foundational to this effort, and Staughton and Alice Lynd, who first introduced him to the issue of solitary confinement and continue to be important collaborators in

x Acknowledgments his work. His three children, Mike, Caroline, and Sasha, have provided motivation, humor, and inspiration to do this work. Most important has been the continuing love and support of his wife, Karen Engro, who has been the key person enabling him to engage in the activist, litigation, and academic work challenging prolonged solitary confinement. Professor Scharff Smith would like to thank all the participants in the Scandinavian Solitary Confinement Network—​ former prisoners, prison officers, prison governors, psychologists, lawyers, and researchers—​for a crucial exchange of knowledge and for supporting and working for prison reform in this area. He would also like to thank his colleagues at the Department of Criminology and Sociology of Law at the University of Oslo for creating an excellent academic and social working environment. For ongoing and inspirational discussions throughout the years concerning solitary confinement, he especially wants to thank Sharon Shalev and Marte Rua. Finally, he would like to thank his family and especially his three children, Siri, August, and Vera, who are an incredible joy to be around and a constant motivation in life.

1

Solitary Confinement—​From Extreme Isolation to Prison Reform Jules Lobel* and Peter Scharff Smith**

For nearly two centuries the practice of solitary confinement has been a recurring feature in many prison systems all over the world. Solitary confinement is used for a panoply of different reasons although research tells us that these practices have widespread negative health effects. Besides the death penalty, it is arguably the most punitive and dangerous intervention available to state authorities in democratic nations. These facts have spawned a growing international interest in this topic and reform movements which include, among others, doctors, psychologists, criminologists, sociologists, prisoners, families, litigators, human rights defenders, and prison governors.

Social beings Humans are social beings. We interact with other human beings, and that is how we come to know who our friends, family members, colleagues, neighbors, and others we meet on our journey through life are. Such interactions enable us to understand who we ourselves are. Without human and social contact that feat would seem impossible. How should we otherwise form and comprehend our own identity? Indeed, it is through social interaction that we find partners and eventually reproduce as a species. In that sense the alternative to social contact is not only loneliness but in the end also death—​unless we envision some kind of dystopian future where computers and science have somehow replaced love and sex. Many of us live lives full of people, children, families, work, and activities and sometimes long for more time for ourselves. Just a few hours or even minutes

* Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School; Co-​operating Attorney and Former President of the Board, Center for Constitutional Rights. ** Professor in Sociology of Law, Department of Criminology & Sociology of Law, Faculty of Law, Oslo University. Jules Lobel and Peter Scharff Smith. Solitary Confinement—From Extreme Isolation to Prison Reform In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0001

2  Solitary Confinement behind a closed door in order to gather our thoughts, write that email, get on with a project, finish that chapter or article, etc. Nevertheless, given some time to ponder this issue most of us will likely understand that prolonged social isolation is not something to wish for. Especially not if we are unable to choose when and how to end such isolation. As will be described in this book, social isolation is in fact very dangerous to human health and well-​being. In the free world, loneliness and isolation increase the risk of mortality significantly and present a risk equivalent to or even greater than some of the most well-​known and severe health hazards such as smoking and being overweight.1 This book is about a special kind of social isolation that is imposed on the incarcerated—​people who cannot themselves decide when to get out and end such isolation. Solitary confinement is the term used to describe the situation where people are confined individually and alone in a cell in a prison for between twenty-​two and twenty-​four hours every day.2 This practice has been utilized in prison systems since the eighteenth century and up until this day. This form of isolation is extremely detrimental to the health of the people being subjected to such conditions.3 Not surprisingly, in states without the death penalty, solitary confinement has been described as the “the furthest point of the repertoire of sanctions and compulsions available to a liberal democratic state outside time of war.”4 Incredibly, these facts have had little or no impact on prison policy in many jurisdictions. Often, people are placed in solitary confinement simply at the whim of prison officers and often without noteworthy legal safeguards or effective complaint mechanisms. And such conditions are sometimes imposed for years and even decades on end. Interestingly and bizarrely, we treat these prisoners in a manner that would not be permitted for our animal companions used in scientific research. Indeed, humans are not the only social beings living among us and in many countries our research on animals, and even in some cases the treatment of certain animals is regulated in great detail by law in a way we see few or no signs of when it comes to humans residing in prisons.

1 See Hawkley, Chapter 11, this volume. 2 This definition of solitary confinement follows the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) from 2015; and The Istanbul Statement on the Use and Effects of Solitary Confinement, Adopted on December 9, 2007 at the International Psychological Trauma Symposium, Istanbul. 3 See Haney, Chapter  8, this volume; Williams and Ahalt, Chapter  9, this volume; Venters, Chapter 10, this volume; Zigmond and Smeyne, Chapter 11, this volume; Smith, Chapter 2, this volume. 4 Richard Sparks, Anthony E. Bottoms, and Will Hay, Prisons and the Problem of Order (London: Clarendon Press, 1996), 30.

Jules Lobel and Peter Scharff Smith  3

Social animals and isolation Imagine a horse in the middle of a field—​in this case somewhere in Sweden. This particular horse is leading a happy life in part because it has a legal right to everyday contact with other companions. The horse is a social animal and hence social isolation is unhealthy. This fact is reflected in Swedish law. The statutes of the Swedish Animal Welfare Authority stipulate that “a horse’s need for social contact must be met.”5 What this entails in practice is explained in the rules and guidelines for horse owners from the Swedish Department of Agriculture: Ideally, your horse should be in contact with other horses, but it can work with another flock animal, such as sheep or cattle, if this is enough for your horse to be well.6

To ensure such contact, the living conditions in the stables are also regulated in detail: “Box walls, box doors and partitions must be designed so that the horse’s need for social contact is met.”7 Unsurprisingly, the same goes for other social animals. Another example from Swedish law involves the ostrich—​an animal that you are not allowed to isolate from its conspecifics.8 Bear in mind that Sweden is just one example. Many countries of course have rules and legal safeguards protecting certain animals from abuse and ill health. As shown in the Swedish example, a social animal’s need for contact with other animals is an important element in its well-​being, and therefore animals often have special rights in this area. But in Sweden, you will not find similar rights being granted to imprisoned human beings. Despite Sweden’s reputation as a country with humane prison conditions, solitary confinement is actually a serious problem, especially during remand where pre-​trial detainees are awaiting conviction. In fact, and quite extraordinarily, around two-​thirds of all pre-​trial detainees in Sweden are automatically subjected to solitary confinement—​a practice that has been heavily criticized by international human rights committees for decades.9 5 Djurskyddsmyndighetens författningssamling, DFS 2007:6, 2 kap. Skötsel och hantering, Allmänna krav, 1 § 4. 6 Jordbruksverket “Djurskyddsbestämmelser, Häst,” Jordbruksinformation 4, 2011, p. 6. See also, Djurskyddsmyndighetens författningssamling, DFS 2007:6, Allmänna råd till 2 kap. 1, “Hästar bör hållas tillsammans med artfränder.” 7 Jordbruksverket “Djurskyddsbestämmelser, Häst,” Jordbruksinformation 4, 2011, p. 5. 8 Swedish Ministry of Agriculture, August 14, 2018, accessed April 2019, https://​nam05.safelinks. protection.outlook.com/​?url=http%3A%2F%2Fwww.jordbruksverket.se%2Famnesomraden%2Fdj ur%2Folikaslagsdjur%2Fhagnatvilt%2Fskotselavstrutsar.4.51c5369e120aee363f08000366.html&am p;data=02%7C01%7Clawdtc%40pitt.edu%7Cf8c18f3a3e5a4ec7858508d6bc18f8c5%7C9ef9f489e0a 04eeb87cc3a526112fd0d%7C1%7C0%7C636903212765281265&sdata=gUyJ0Zurd%2B%2Ba uCb6PrwRckJm%2FagRAcVLTXbZrC3xVno%3D&reserved=0. 9 See Smith, Chapter 2, this volume.

4  Solitary Confinement

Solitary confinement in prison—​Effects and practices A human being’s need for some level of social contact does not seem to be secured as a basic right in any prison system in the world, and in some it is blatantly ignored to a remarkable degree. This has to a greater or lesser extent been the case especially during the last two centuries. The use of solitary confinement in prisons became common with the rise of the modern penitentiary during the first half of the nineteenth century and his since remained a feature of some Western, and non-​Western, prison systems. A debate about the effects of solitary confinement was largely settled early in the twentieth century, when this practice was condemned as being severely unhealthy, and consequently the general use of prolonged solitary confinement appeared to be on the way out. Discussions about the practice resurfaced in the 1950s, when sensory deprivation and perceptual deprivation studies were carried out partly in reaction to stories of brainwashing of US prisoners of war during the Korean War.10 During the 1980s solitary confinement again regained topicality when supermax prisons caused an explosion in the use of solitary confinement in the United States.11 However, various forms of isolation have been continuously used in different parts of the world, which includes numerous practices ranging from the phenomenon of pre-​trial solitary confinement in Scandinavia to the use of isolation in connection with interrogations of suspected terrorists.12 Today we know from a wide range of international studies and research that solitary confinement is a dangerous practice that can have significant negative health effects.13 Nevertheless, in the United States currently, an estimated 80,000 to 100,000 prisoners are housed in small cells for more than 22 hours per day with little or no social contact and no physical contact visits with family or friends. Indeed, solitary confinement is used in many prison systems as a means to maintain prison order:  as disciplinary punishment or as an administrative measure for inmates who are considered an escape risk or a risk to themselves or to prison order in general. Some inmates, for example, sex offenders, also choose voluntary isolation to avoid harassment from other prisoners. Nevertheless, recent years have witnessed growing international reform interest in this area, which has mobilized not only researchers, litigators, and human rights defenders, but also prison governors and other practitioners. This 10 See Smith, Chapter 2, this volume. 11 See Reiter, Chapter  5, this volume; Resnik, Chapter  6, this volume; Lobel, Chapter  22, this volume. 12 See Nowak, Chapter  3, this volume; Shalev, Chapter  4, this volume; Smith, Chapter  2, this volume. 13 See Haney, Chapter  8, this volume. See also Williams and Ahalt, Chapter  9, this volume; Venters, Chapter 10, this volume, Zigmond and Smeyne, Chapter 13, this volume; Smith, Chapter 2, this volume.

Jules Lobel and Peter Scharff Smith  5 is the starting point for the present book, which builds on the hitherto most ambitious international, interdisciplinary, and comprehensive conference on solitary confinement, which took place at the University of Pittsburgh in 2016 and was organized by the editors. With this book we wish to take for the first time a broad international comparative approach to this subject and to apply an interdisciplinary lens consisting of the views of neuroscientists, high-​level prison officials, social and political scientists, medical doctors, historians, lawyers, and former prisoners and their families from different countries to address the effects and practices of prolonged solitary confinement and the movement for its reform and abolishment.

Two reform movements that inspired this book In many countries you will, on a given day, find hundreds or even thousands of prisoners being locked up in solitary confinement in various institutions—​for days, weeks, months, or even many years at a time. In that sense we are very far indeed from a situation where a human beings’ very basic social needs are protected by law and respected in practice in our prisons. Nevertheless, a number of important developments have taken place during recent decades that have brought the question of solitary confinement and prison practice to the forefront and created significant pockets of reform. Two different reform movements have been significant and at least partly successful in this regard, and they form the background of this book as well as the conference held in Pittsburgh in 2016. First, international human rights standards have increasingly been applied to prisoners in the last half century.14 With regard to solitary confinement, international human rights standards have evolved significantly especially in the last approximately 15 years, and human rights monitoring has expanded since the 1990’s in Europe and during the last decade or so, internationally as well.15 International and regional human rights bodies, supported by NGOs, individual researchers and activists have succeeded in strengthening soft law, monitoring, and torture prevention in this particular area significantly, which to a varying degree has had an impact on national jurisdictions as well. This development is reflected in several of the chapters in this volume and is an important reason that this book has become possible at all. 14 Concerning the “endtimes” of human rights, see Stephen Hopgood, The Endtimes of Human Rights (New York: Cornell University Press, 2013). Concerning pockets of increased human rights implementation and protection in prison systems, see Peter Scharff Smith, “Prisons and Human Rights: Past, Present and Future Challenges,” in The Routledge International Handbook of Criminology and Human Rights (New York: Routledge, 2016). 15 See Nowak, Chapter 3, this volume; Mendez, Chapter 7, this volume.

6  Solitary Confinement Secondly, significant developments have taken place in the United States, where litigation against isolation practices has gained momentum and finally become more successful.16 Equally importantly, the litigation has been joined with a reform movement that has raised awareness of the harmfulness of the practice, has helped enlist the aid of some prison officials in reforming certain state prison systems, and has created partnerships between non-​governmental organizations (NGOs), lawyers, researchers, and state correctional services. As will be explained in this chapter, this has informed and formed this book in a very direct way through a particular case brought against the Pelican Bay prison in California. The following sections briefly describe these two reform movements, which have converged in recent years and formed the backbone of this collection.

International human rights reforms—​From the International Prison Commission to the Istanbul Statement and the Mandela Rules The process of creating international standards for prison practice—​including the use of solitary confinement—​goes back to before World War II and hence precedes the first human rights conventions. Evidence on the detrimental health effects of solitary confinement continued to mount during the nineteenth and early twentieth centuries and gradually, albeit slowly, influenced international prison experts and their recommendations for sound prison management. The International Prison Commission held several conferences during the nineteenth century and in 1846 the delegates approved the use of solitary confinement. At the 1872 penitentiary congress in London, solitary confinement was also subject to a lively discussion, but no resolutions were drawn up. This undoubtedly reflected the fact that large-​scale solitary confinement (according to the Pennsylvania/​Philadelphia system) was still practiced in several countries. As late as 1960 in Brussels the use of isolation was endorsed. At a 1930 penitentiary congress in Prague, however, it was specified that solitary confinement should never be used in connection with sentences of long duration.17 After World War II the international work with prison standards continued within the United Nations (UN). The original 1948 Declaration of Human Rights and several of the UN conventions from the 1960s and onwards

16 See Resnik, Chapter 6, this volume; Fettig and Fathi, Chapter 21, this volume; Lobel, Chapter 22, this volume. 17 Peter Scharff Smith, “Solitary Confinement—​History, Practice, and Human Rights Standards,” Prison Service Journal, no. 181 (January 2009): 3-​11.

Jules Lobel and Peter Scharff Smith  7 developed standards for those deprived of their liberty. But these conventions do not themselves address the issue of solitary confinement directly. Nevertheless, the UN Convention on Civil and Political Rights (ICCPR) from 1966 established that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person,”18 which the UN Human Rights Committee later interpreted to mean that “persons deprived of their liberty [may not] be subjected to any hardship or constraint other than that resulting from the deprivation of liberty.”19 The UN and other regional human rights bodies have also increasingly criticized the practice of prolonged solitary confinement. In 1990 the UN Basic Principles for the Treatment of Prisoners encouraged states to abolish solitary confinement as a punishment.20 The UN Committee Against Torture (CAT), which monitors the Convention Against Torture, began to criticize isolation practices in different parts of the world and recommended that “the use of solitary confinement be abolished, particularly during pre-​trial detention, or at least that it should be strictly and specifically regulated by law (maximum duration, etc.) and that judicial supervision should be introduced.”21 Other mechanisms contributed to these efforts; for example, the UN Committee on the Rights of the Child recommended that solitary confinement should not be used against children.22 On a regional level the European Committee for the Prevention of Torture (CPT) has stated that solitary confinement can amount to inhuman and degrading treatment and has criticized isolation practices in several countries.23 So too, the Inter-​American Commission on Human Rights has been critical of certain prison systems’ use of solitary confinement. Furthermore, the revised European Prison Rules of 2006 states: “Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible.”24 But all these recommendations and standards lie within the area of soft law and are not in themselves legally binding. They require action and compliance from state authorities and/​or that international or national courts adopt them and turn them into hard law through judgments in concrete prison cases. Furthermore, after the new European prison rules appeared in 2006, experts on solitary confinement, prisons, and human rights took stock and identified a number of crucial problems in this area: The use of solitary confinement was on



18 19 20 21 22 23 24

Article 10.1. The Human Rights Committee, General Comment No. 21[44], article 10 (1-​3) 1992. Principle 7. CAT, Visit report, Denmark, 1. May 1997, para. 186. CRC/​C/​15/​Add.273, “Denmark”, 30 September 2005, para. 58 a. See Smith, “Solitary Confinement.” Rule 60.5.

8  Solitary Confinement the rise in some jurisdictions and continued to be a significant problem in others, while the human rights standards in the area were too weak despite developing research that had clearly documented the severe negative health effects of prolonged isolation.25 Consequently—​and with the purpose of either abolishing or significantly restricting the use of solitary confinement—​a group of experts convened during the International Psychological Trauma Symposium in Istanbul in December 2007 and produced the Istanbul Statement on the Use and Effects of Solitary Confinement.26 This Statement recommended, among other things, that solitary confinement should be absolutely prohibited for mentally ill prisoners, for children under the age of eighteen, and when used coercively to apply psychological pressure on prisoners. The Statement also advised as a “general principle” that “solitary confinement should only be used in very exceptional cases, for as short a time as possible and only as a last resort.”27 Importantly, the Statement and these standards were then promoted in the UN by the then-​Special Rapporteur on Torture, Manfred Nowak, who had participated in negotiating the Statement in Istanbul and attached to his 2008 report to the UN General Assembly.28 The Statement was also used by a later UN Special Rapporteur on Torture, Juan Mendez, who further developed and strengthened standards significantly in this particular area.29 Mendez focused on solitary confinement in his thematic 2011 report and took further strides by calling for a complete ban on all forms of prolonged solitary confinement, which he defined as isolation beyond fifteen days.30 The increased focus on strengthened human rights standards culminated in 2015 with revised UN prison rules known as the Mandela Rules. Those rules incorporate the definition of solitary confinement from the Istanbul Statement on the Use and Effects of Solitary Confinement and constitute the strongest soft law instrument in the work towards restricting or abolishing the use of solitary confinement in prisons.

25 Craig Haney, “Mental Health Issues in Long-​Term Solitary and ‘Supermax’ Confinement,” Crime and Delinquency 49, no. 1 (2003): 124–​56; Henrik Steen Andersen, “Mental Health in Prison Populations: A Review—​With Special Emphasis on a Study of Danish Prisoners on Remand,” Acta Psychiatrica Scandinavica Supplementum 110, no. 424 (2004):  5–​59; Peter Scharff Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature,” in Crime and Justice, ed. Michael Tonry (Chicago: Chicago University Press, 2006), 441–​528). Haney, Chapter 8, this volume. 26 Peter Scharff Smith, “Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement,” Torture 18, no. 1 (2008): 56–​62. 27 The Istanbul Statement on the Use and Effects of Solitary Confinement, Adopted on December 9, 2007 at the International Psychological Trauma Symposium, Istanbul. 28 See Nowak, Chapter 3, this volume. 29 Mendez, Chapter 7, this volume. 30 See id.

Jules Lobel and Peter Scharff Smith  9 To sum up, the last fifteen years or so have witnessed increased human rights attention to the problem of solitary confinement in prisons, and the development of standards to significantly restrict and eventually abolish the practice. Many of the authors of this book have participated in and contributed to this growing human rights reform movement, which provided a basis for the international, interdisciplinary, and comparative approach taken in this book.

Prison litigation in the United States—​Solitary confinement and the recent Pelican Bay case The United States, where the increasing use of solitary confinement in the last few decades of the twentieth century was most dramatic, spawned a reform movement of its own. Indeed, the conference held at the University of Pittsburgh Law School in 2016 of which the book is an outgrowth, germinated in part based on class action litigation brought against the California Department of Corrections on behalf of over 1,000 prisoners held in prolonged solitary confinement at Pelican Bay State Prison in California. That litigation, which successfully ended the indeterminate, very prolonged solitary confinement of almost 1,600 California prisoners, was premised on combining prisoner testimony on the harm and pain caused by their confinement with expert testimony from various disciplines setting forth the psychological, neurological, and physical harm caused by solitary confinement. In addition, the expert strategy would also set forth the international norms limiting the use of prolonged solitary, and in that sense the two reform movements mentioned here—​international human rights and US prison litigation—​converged with this particular case, and now with this book. Additionally, high-​level prison official expertise was employed in the Pelican Bay case, claiming that California’s practices were penologically unnecessary. Finally, international comparison was used to illustrate other nations’ use of alternatives to draconian isolation. The combination of first-​hand experience with interdisciplinary, international, and comparative expertise was then utilized at the Pittsburgh conference convened by the two co-​editors of this book, and continued with this volume. Indeed, some of the authors of the chapters in this book were experts in the California case.31 The multifaceted challenge to solitary confinement contained in the Pelican Bay litigation thus provides rich intellectual and practical lessons on why and how to reform and eventually end the practice.32 31 Haney, Chapter  8, this volume; Hawkley, Chapter  11, this volume; Coyle, Chapter  15, this volume; and Mendez, Chapter 7, this volume. 32 See Lobel, Chapter 22, this volume; Lobel was one of the litigators in the California litigation.

10  Solitary Confinement To demonstrate that the use of prolonged solitary confinement is cruel, inhumane, unusual, and degrading punishment that violates constitutional and human rights norms required both the Pelican Bay litigators and the editors of this book to address three basic questions. The first is what is the harm to human beings who are placed in such confinement? At first glance the harm is obvious: To lock someone up for a prolonged period of time in a small cell, twenty-​two to twenty three hours per day, with virtually no social contact, no programming, no physical contact with friends, family, or other prisoners, seems like it would drive the person crazy. Or as United States Supreme Court Justice Anthony Kennedy put it in a 2015 speech at Harvard Law School, “it drives men mad.”33 Moreover, various psychological experts and researchers—​including Craig Haney, an author in this book and an expert in the Pelican Bay litigation—​have concluded that prisoners in solitary suffer tremendously from such prolonged isolation.34 But the reluctance of some courts to view the pain caused by solitary confinement as rising to the level of cruel and inhumane punishment demonstrates a need for a deeper and broader understanding of the harm caused by such confinement. This led the Pelican Bay litigators to retain experts in the fields of neuroscience, social science, and touch in order to demonstrate that prisoners in solitary confinement were suffering an increased risk of physical harm, in addition to mental harm. They also asked the psychological experts to develop new, promising avenues of research with the prisoner class at Pelican Bay to further illustrate the ongoing, long-​term psychological harm these prisoners were suffering. That interdisciplinary approach involving five separate experts led to success in the Pelican Bay litigation and has been continued in this book, which broadens the understanding of solitary confinement and its effects even further. The second major question faced by the litigators was a penological one—​was the use of prolonged solitary confinement necessary, and were alternatives available? Probably the key defense that prison officials, including those in California, make of their use of solitary confinement is that it is necessary to curb violence in the prisons; to isolate the most dangerous prisoners so that they do not kill, assault, or rape other prisoners and staff. Courts faced with that security argument are often likely to defer to the prison officials’ rationale. The prisoners and their legal team felt that we needed expert witnesses to undercut California’s security rationale. This book takes the same approach. Justice Kennedy articulated the likely underlying concerns of many judges when, in inviting a future challenge to prolonged solitary confinement, he noted that the “judiciary may be required to

33 Liz Mineo, “Kennedy Assails Prison Shortcomings,” last modified October 22, 2015, https://​ news.harvard.edu/​gazette/​story/​2015/​10/​kennedy-​assails-​prison-​shortcomings/​. 34 See Haney, Chapter 8, this volume.

Jules Lobel and Peter Scharff Smith  11 determine . . . whether alternative systems for long-​term confinement exist, and if so, whether a correctional system should be required to adopt them.” The plaintiffs’ legal team retained a former director and a deputy director of two state prison systems that had reformed their use of solitary confinement to testify as to the lack of justification for California’s use of prolonged isolation as well as potential alternatives to the practice. They also retained the nation’s leading expert on prison classification systems for determining the level of security for a prisoner. He declared that California’s system of determining who should be placed in and retained in solitary confinement was broken, had not diminished prison violence, and resulted in numerous prisoners being placed and retained for years in solitary without justification. Moreover, Andrew Coyle, an international expert in prisons and solitary confinement, who had been a high-​level Scottish official who had led a reform movement away from such confinement in that country, also agreed to testify that California’s use of solitary was not only penologically unnecessary but also harmful from a security perspective and contrary to sound prison management principles.35 This book continues and significantly expands upon that effort by including a number of essays by top American state prison officials and prison managers in other countries discussing their reform of solitary systems and the development of alternatives. In particular, the prisoners and lawyers felt that to prove an Eighth Amendment violation one had to show that even the most dangerous prisoners should not be held for long periods of time in the isolating conditions of Pelican Bay or other American supermax prisons. For if solitary was a form of torture, as the complaint alleged, it was impermissible to place any prisoners, no matter how dangerous, in these conditions for prolonged periods. Yet it was with these allegedly destructive prisoners—​the Hanibal Lecters of the system—​that the state had its best argument; how could they place these prisoners in with gen­ eral population prisoners without unleashing mayhem. The former director of a major state system, Ohio, filed an expert declaration that in Ohio they were able to provide even the prisoners that officials considered most dangerous with some significant social interaction with other prisoners and contact visits and phone calls with family and friends. So too, the foreign prison official explained how that was possible to do and had been done in his system. In short, these prison officials testified that you could separate these allegedly very dangerous prisoners from other prisoners without mandating total isolation. Separation, not isolation was their alternative practice. Third, and finally, we sought to show that the prolonged solitary confinement imposed by California was contrary to international norms and practices,



35

See Coyle, Chapter 15, this volume.

12  Solitary Confinement which were moving away from solitary confinement and prohibited the types of practices imposed by California. We retained Juan Mendez, then the UN Special Rapporteur on Torture to visit Pelican Bay and write a report on its inconsistency with international norms and practices. In addition, our international prison expert also opined on the divergence between California’s practices and what international society now recognized as sound prison management consistent with the human rights of the prisoners. In sum, we sought to show that California was an outlier, out of step and touch with modern prison practices both here and abroad. Mendez, Coyle, and another former UN Rapporteur, Manfred Nowak, are authors of chapters in this book, and they have been joined by others who continue and deepen the multifaceted approach that was employed with the Pelican Bay litigation. The importance of these expert reports in the California litigation is twofold. First, as a whole, they constitute a thoroughgoing and innovative critique of prolonged solitary confinement, explaining why it deprives people of basic human needs, is an affront to human dignity, and is unnecessary.36 As such, these reports can play an important role in the continuing struggle against solitary confinement. Their insights into the use of solitary at Pelican Bay are greatly supplemented by the essays in this book, some of which are written by those experts, but most of which bring their knowledge to deepen and expand both the critique of solitary and the possibility of alternatives. Second, the reports illustrate the role that science can play in legal advocacy, and the dilemmas confronting the interface of law and science in the courtroom, for harnessing science for legal advocacy can be incredibly powerful but also difficult and possibly problematical.

The structure of the book The book is structured in three main parts. The first part, titled “Two Centuries of Solitary Confinement,” looks at the history of solitary confinement and how isolation is practiced in various prison systems today, and provides an overview of how and why relevant law has evolved in the United States and within the human rights community. The second part, titled “Mind, Body and Soul—​The Harms and Experience of Solitary Confinement” discusses the physical as well as the mental health effects of solitary confinement and the frequency of self-​injurious behavior in isolation, and demonstrates how and why research on the effects of social isolation in the



36

See Lobel, Chapter 22, this volume.

Jules Lobel and Peter Scharff Smith  13 free community is very relevant to the study of solitary confinement in prisons. Furthermore, the lessons of neuroscience are applied to solitary confinement in this part of the book. Finally, the experience of solitary confinement is described from the point of view of prisoners and prison staff. The third part of the book looks at “Prison Reform, Prison Litigation and Human Rights.” Here, we initially focus on alternatives to solitary confinement in the form of reform initiatives and concrete prison practices in different prisons in different countries where the use of isolation is either low or nonexistent. After that we take a look at concrete litigation in a number of jurisdictions where the use of solitary confinement has been successfully challenged.

The individual chapters Part one begins with Chapter  2 by Peter Scharff Smith titled “Solitary Confinement—​Effects and Practices from the Nineteenth Century until Today.” Here Smith traces the history of solitary confinement practices and their effects in prisons and places of detention from early experiments in late-​eighteenth-​ century England, to the rise of the modern penitentiary in the United States and Europe during the nineteenth century, up until present day methods in different countries around the world. Smith demonstrate how various forms of isolation have been, and still are, employed for very different purposes and how the effects of solitary confinement have been discovered on several occasions in different contexts during the last two centuries. He concludes by showing that today few doubt the powerful effects of solitary confinement on mind and body of prisoners, but the degree to which lawmakers and prison administrators acknowledge this varies greatly. In Chapter 3, “Global Perspectives on Solitary Confinement—​Practices and Reforms Worldwide,” Manfred Nowak puts the practice of solitary confinement in the context of and distinguishes it from other aggravated forms of deprivation of liberty, such as incommunicado detention, secret detention, and enforced disappearance. Nowak proceeds to discuss the relevant case law of human rights courts and monitoring bodies and compare this with his own experience as UN Special Rapporteur on Torture and that of his successor Juan Mendez. Nowak describes how Mendez and himself, based on research into the effects of solitary confinement, helped change and significantly strengthen soft law standards in the area. In the next chapter, Sharon Shalev builds on her previous work on supermax prisons in the United States, high-​security units across Europe, close-​supervision centers and segregation units in England and Wales, and management and punishment units in New Zealand, to identify different approaches and common threads in the use of solitary confinement in different jurisdictions.

14  Solitary Confinement Chapter 5, by Professor Keramet Reiter provides an overview of how the first supermaxes were designed by administrators, at the state-​level, in response to outbreaks of violence. The institutions faced many legal challenges, and while the litigation led to reforms, it also legitimized the institutions, which were replicated across the United States, and globally, over the course of the 1980s and 1990s. In Chapter  6, Judith Resnik argues that the isolating practices of solitary confinement ought not be analyzed in isolation, for they are continuous with methods of incarceration that isolate by place and by rule. Drawing on research of the Association of State Correctional Administrators and Yale Law School, she provides a window into the numbers of people held in the United States in isolation and the burdens that flow, in terms of the lack of opportunities for sociability that individuals endure for months and years. Law licenses these practices and could bound them more. Doing so requires rethinking not only solitary confinement but also the imposition of a myriad of other constraints imposed on incarcerated individuals and taken for granted, rather than viewed as “atypical.” Placing US law in the context of international reform efforts makes plain that profound deprivation is the normative baseline, to which some facets of ordinary life and constitutional protections may be added to mitigate the harshness. In the last chapter of the overview part of the book, Juan Mendez, the former UN Special Rapporteur on Torture, himself a former political prisoner during the Argentinian military dictatorship, describes how early on in his tenure he was confronted with specific cases of prolonged solitary confinement. He embarked on a research project that culminated in his thematic report on solitary confinement, delivered to the UN General Assembly in November of 2011. The report proved to have a long shelf life, as it prompted several other actions and initiatives by the author, during and after his tenure. Opening Part II of the book on Mind, Body and Soul, which addresses the harm caused by solitary confinement, is a chapter by Craig Haney. This chapter summarizes the existing state of scientific knowledge on the adverse psychological effects of isolated confinement. Based on a comprehensive review of the published literature as well as the author’s own empirical research, it will both catalogue these effects and provide a coherent theoretical framework for understanding how and why the practice of solitary confinement is both harmful and counterproductive. The next chapter, by Dr.  Brie Williams and MPP Cyrus Ahalt, argues that despite clear documentation of the medical and psychological harms of solitary confinement, reform remains inconsistent. Oftentimes, this inconsistency reflects the extent to which the harm-​benefit calculation disproportionately favors a perceived correctional benefit of solitary confinement over its known health-​related harm. This chapter describes the medical field’s approach to reconciling harm/​benefit analyses as a fundamental step in any medical research,

Jules Lobel and Peter Scharff Smith  15 treatment, or policy intervention. It describes a robust, stepwise framework that can be used to assess the harm-​benefit calculus underlying the practice of solitary confinement based on the Federal Drug Administration (FDA) model for medication approval. This chapter introduces and explores the question of whether prisons would benefit—​from both ethical and effectiveness perspectives—​from the development of a parallel harm/​benefit analysis framework for assessing the appropriate use of correctional practices that have a potential to cause harm. Chapter 10, by Dr. Homer Venters argues that the persistence of myths about solitary confinement allow for this harmful and dangerous practice to continue in many American jails and prisons. The first myth is that solitary is not linked to real health outcomes. Data from 250,000 New York City jail admissions shows that prisoners exposed to solitary have odds ratios of 6.9 and 6.6 for self-​harm and potentially fatal self-​harm, respectively. The second myth relating to solitary confinement is that solitary is evenly applied across race and age. A second large-​ scale analysis of New York City data, on 50,000 first-​time jail admissions, shows African American and Hispanic prisoners more likely than white prisoners to enter into solitary (odds ratios of 2.5 and 1.6), even after adjustment for length of stay. The third myth about solitary is that it represents a valid approach to reducing violence and other incidents. Venters’s chapter also discusses the “Clinical Alternatives to Punitive Segregation” units that he helped to create in the New York City Department of Corrections. Seriously mentally ill patients who previously went into solitary now go into treatment settings, designed and run by teams of health and security staff, with improved outcomes. These units are an important alternative to solitary, but their cost should prompt discussion about the need to divert patients into clinical treatment before they arrive in jail. Chapter 11, by Louise Hawkley, presents concrete data that highlights the risk of increasing hypertension amongst prisoners placed in long-​term solitary confinement. Chronic social isolation and feelings of loneliness have been associated with mortality and a range of adverse health outcomes. Solitary confinement is an extreme form of social isolation that was posited, based on prior research, to increase risk for hypertension relative to imprisonment in general prison housing. Data collected at Pelican Bay State Prison comparing prisoners held in long-​term solitary confinement and those who were held in harsh conditions in maximum security but not in solitary confinement supported this hypothesis, suggesting that isolation can “cause” poor health outcomes. Chapters 12 and 13 address the lessons that neuroscience can teach about the harm that isolation causes the brain. Huda Akil recognizes that while there are no direct neuroscience studies of people exposed to extended solitary confinement, key characteristics of solitary confinement have been extensively studied by neuroscientists in various models. This body of evidence strongly indicates that each of these variables—​chronic stress, lack of sensory stimulation, lack of

16  Solitary Confinement movement, and lack of social contact—​have profound impact on brain structure and function. Their combination, especially for extended periods of time, is likely to produce substantial structural changes in the brain that translate into changes in many functions. Michael J. Zigmond and Richard Jay Smeyne start from the basic proposition that we are a social species, a characteristic undoubtedly selected for during evolution. They then reference studies of animal models housed in isolation, which show that isolation causes severe neuroanatomical and biochemical abnormalities in the brain. They discuss these studies as well as regulations imposing severe restrictions on the housing of animals in isolation. Chapter 14 addresses the prisoner’s perspective on and experiences of solitary confinement. Robert King and Jack Morris, former prisoners who each spent more than two decades in solitary confinement, discuss the deep harm it caused them, and how they managed to survive. Dolores Canales, who both experienced solitary confinement as a prisoner and has a son who spent many years in solitary confinement, shares her perspectives on the harm it causes. The chapter also includes an essay by a Colorado prison guard, Armando Sosa, explaining how solitary confinement not only harmed prisoners but also was a stressful work environment, and how the reforms instituted in Colorado not only helped the prisoners, but also the correctional officers. The last part of the book describes and discusses various reform efforts by prison administrators in Europe and the United States to either reform or abolish solitary confinement and develop alternatives. It also contains essays by five litigators in the United States and Canada that address litigation in their countries against solitary confinement. Andrew Coyle, in Chapter 15, discusses the alternatives to solitary confinement for the management of high-​security prisoners. He points out that in any prison system there are likely to be a number of prisoners who, for a wide variety of reasons, cannot be accommodated in mainstream or general populations. Prison administrations have increasingly resorted to the use of long-​term solitary confinement as a method of managing such prisoners. This chapter discusses alternative models of prison management which obviate the need for long-​term solitary confinement. Jamie Bennett then describes therapeutic communities and the Grendon prison model as an alternative to solitary. He argues that the supermax has become a global brand in penal practice. England and Wales have, however, consistently rejected this as a normal approach to imprisonment. This chapter argues that where local approaches are conserved, imaginative practice can flourish. Particular attention is given to the work of Grendon prison, which operates entirely as a series of therapeutic communities working with high-​risk prisoners who have committed serious offenses and have been disruptive in prisons.

Jules Lobel and Peter Scharff Smith  17 In Chapter  17, Are Høidal discusses prisoner association as an alternative to solitary confinement and the lessons learned from a Norwegian high security prison. Participating in activities can counteract isolation and is in Norway justified by the principle of normalization. Providing in-​work training and meaningful activities also help to counteract incidents in prison that lead to segregation. Through the Norwegian example in general and Halden prison in particular, this chapter describes how focusing on such activities can prevent suicide, isolation damage, and violence, and help to reduce the use of safety cells, segregation, and other restrictive measures. In Chapter 18, Rick Raemisch discusses the efforts he undertook as director of the Colorado Department of Corrections to get prisoners out of isolation. In Colorado prisons, 5 years ago, 1,500, or almost 7%, of the inmate population was in solitary. His predecessor as head of the Colorado prison system was assassinated by an individual who spent several years in solitary, had mental health issues, and was then released into the community. Now less than 1% of the prison’s population is in solitary. This article addresses how Colorado was able to stop releasing people from solitary directly into the community, stop putting seriously mentally ill in solitary, and ban solitary at two prisons dedicated to those with mental health issues. It also discusses how punitive segregation was dropped from sixty to fifteen days, how Colorado is the only state where someone’s maximum time in solitary is one year and then only under the most serious circumstances, how women are in solitary a maximum of fifteen days with no pregnant women ever in solitary, and how even the few prisoners still in lengthy segregation receive much more out-​of-​cell time and in programming than previously. In Chapter 19, Leann Bertsch describes the lessons she learned when she visited high-​security prisons in Norway and how she implemented those lessons as director of the North Dakota Department of Corrections and Rehabilitation. Bertsch writes that focusing on the reality that almost everyone gets out of prison, Norwegians ask the pragmatic question “What kind of neighbors do you want?” Her most urgent priority after returning from Norway was to reduce the use of solitary confinement. She says the department changed its philosophy to “behave your way in, behave your way out,” dramatically reducing the number of individuals in solitary.Chapter, by 20, by Joseph Arvay and Alison Latimer discusses the historic Canadian litigation against solitary confinement that resulted in a trial court determination that such confinement violated the constitutional rights of prisoners. That ruling has now been affirmed by the Court of Appeals, which held that the Canadian law permitting prolonged, indeterminate solitary confinement offends the fundamental norms of a free and democratic society. As a result of the litigation, the Canadian parliament has enacted a new law that creates “structured intervention units” which allows prisoners held in segregation considerably more out of cell time with interaction with other prisoners.

18  Solitary Confinement Chapter 21, by Amy Fettig and David Fathi explores how in the United States, civil society advocacy campaigns working to reform and abolish solitary confinement are interacting with recent and ongoing federal litigation. The authors iposit that the evolution of policy, practice, litigation, and public knowledge regarding solitary confinement is pushing the law forward. Momentum for greater legal protections is growing in the courts and the combination of people power and jurisprudential development is leading to substantial new protections for prisoners. Finally, Jules Lobel’s Chapter 22, discusses the California litigation which resulted in the virtual elimination of prolonged, indeterminate solitary confinement in that State’s prisons. He analyzes the use of interdisciplinary, comparative and international law experts in that case to demonstrate both the physical and psychological harms that prisoners held in solitary confinement experienced, the absence of a penological necessity for such confinement, the alternatives that prison officials could utilize, and prolonged solitary confinement’s violation of international norms.

Bibliography Andersen, Henrik Steen. “Mental Health in Prison Populations: A Review—​With Special Emphasis on a Study of Danish Prisoners on Remand.” Acta Psychiatrica Scandinavica Supplementum 110, no. 424 (2004): 5–​59. Haney, Craig. “Mental Health Issues in Long-​Term Solitary and ‘Supermax’ Confinement.” Crime and Delinquency 49, no. 1 (2003): 124–​56. Hopgood, Stephen. The Endtimes of Human Rights. New York: Cornell University Press, 2013. Mineo, Liz. “Kennedy Assails Prison Shortcomings.” Last modified October 22, 2015. https://​ news.harvard.edu/​gazette/​story/​2015/​10/​kennedy-​assails-​prison-​shortcomings/​. Smith, Peter Scharff. “Prisons and Human Rights: Past, Present and Future Challenges.” In The Routledge International Handbook of Criminology and Human Rights, edited by Leanne Weber, Elaine Fishwick, Marinella Marmo, 525–​535. New York: Routledge, 2016. Smith, Peter Scharff. “Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement.” Torture 18, no. 1 (2008): 56–​62. Smith, Peter Scharff. “Solitary Confinement—​History, Practice, and Human Rights Standards.” Prison Service Journal 3–​11, no. 181 (January 2009). Smith, Peter Scharff. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” In Crime and Justice, edited by Michael Tonry, 441–​528. Chicago: Chicago University Press, 2006. Sparks, Richard, Anthony E. Bottoms, and Will Hay. Prisons and the Problem of Order. London: Clarendon Press, 1996. Swedish Ministry of Agriculture. “Senest tilgået.” August 14, 2018. Accessed April 2019. https://​nam05.safelinks.protection.outlook.com/​?url=http%3A%2F%2Fwww. jordbruksverket.se%2Famnesomraden%2Fdjur%2Folikaslagsdjur%2Fhagnatvilt%2Fs kotselavstrutsar.4.51c5369e120aee363f08000366.html&data=02%7C01%7Clawd tc%40pitt.edu%7Cf8c18f3a3e5a4ec7858508d6bc18f8c5%7C9ef9f489e0a04eeb87cc3a 526112fd0d%7C1%7C0%7C636903212765281265&sdata=gUyJ0Zurd%2B%2Ba uCb6PrwRckJm%2FagRAcVLTXbZrC3xVno%3D&reserved=0.

PART I

T WO C E N T U R I E S OF S OL ITA RY C ONF I NE M E NT

2

Solitary Confinement—​Effects and Practices from the Nineteenth Century until Today Peter Scharff Smith*

This chapter traces the history of solitary confinement practices and their effects in prisons and places of detention from the rise of the modern penitentiary in the United States and Europe during the nineteenth century and up until present day, examining methods used in different countries around the world. It discusses how various forms of isolation have been employed for very different purposes and demonstrates how the effects of solitary confinement have been discovered in different contexts during the last two centuries. Nevertheless, these effects have been forgotten or neglected at several important junctures during the history of imprisonment. Today, few doubt that solitary confinement often has powerful consequences for the mind and body of prisoners, but the degree to which lawmakers and prison administrators acknowledge this varies greatly.

Henrik Nielsen and the experience of Philadelphia-​model solitary confinement In 1866 the eighteen-​year-​old Danish farm hand Henrik Nielsen arrived in Vridsløselille penitentiary, which had been opened just seven years previously as Denmark’s first isolation prison, built according to the American Philadelphia model.1 Here, according to the philosophy of the modern penitentiary, prisoners were to be rehabilitated through a mixture of strict isolation, work, and religion.2 * Professor in Sociology of Law, Department of Criminology & Sociology of Law, Faculty of Law, Oslo University. Professor Smith has studied history and social science, holds a PhD from the University of Copenhagen, and has also done research at the University of Cambridge and at the Danish Institute of Human Rights. 1 Also referred to as the “Pennsylvania model” or sometimes the “separate system.” 2 See, for example, Michel Foucault, Discipline & Punish (London:  Vintage Books, 1995); Michael Ignatieff, A Just Measure of Pain (London: Macmillan, 1978); Mark Colvin, Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth-​Century Peter Scharff Smith. Solitary Confinement—Effects and Practices from the Nineteenth Century until Today In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0002

22  Solitary Confinement—Effects and Practices In solitary confinement, in the loneliness of their single cells, they were supposed to turn their thoughts inwards, regret their sins, and commence a religious process of self-​transformation.3 This peculiar system of punishment, which was institutionalized in numerous countries on different continents during the nineteenth century, persisted way into the twentieth century in several jurisdictions, and in many ways formed a common starting point for the modern penal arrangements we still have today, especially in the Western world. In 1866, when Henrik Nielsen began serving his sentence in Denmark, there was still a strong belief that the Philadelphia system and the regime of solitary confinement held the key to a new utilitarian era of rehabilitative punishment. Nielsen’s offenses of theft and burglary led to his third conviction, and he was to spend up to five years in prison. The eighteen-​year-​old was perfectly healthy when committed and the young man had previous prison experience. Indeed, the first year and a half in Vridsløselille seemed to pass without major problems. After that, however, things began to go seriously wrong. Prison staff noted that Nielsen hallucinated. In particular, he started hearing things. He believed that someone bore him ill will, and that the warders wished to harm him. Prison staff also noticed that Nielsen spent a lot of time masturbating in his cell. After this, he was assigned work in the open air in an attempt to improve his health. This arrangement was against the principles of the cellular prison but had nevertheless developed as a practice in Vridsløselille penitentiary when it was discovered that many a prisoner suffered from severe health problems in solitary confinement. Indeed, as will be described in greater detail later in this chapter, the problems with inmate mental health escalated in Vridsløselille penitentiary, and even the prison governor agreed that solitary confinement was the primary cause of the extensive health problems. Henrik Nielsen felt this in his own body and mind as his condition worsened despite some fresh air. Nielsen became refractory and malicious and had to be confined to his cell once again, where he eventually became completely deranged. Henrik Nielsen was then moved to an insane asylum, as was the case with numerous other prisoners who could not cope with the isolation (see Figure 2.1).4

America (New  York:  St. Martin’s Press, 1997); Roddy Nilsson, “The Swedish Prison System in Historical Perspective: A Story of Successful Failure?,” Journal of Scandinavian Studies in Criminology and Crime Prevention 4, no. 1 (2003); Peter Scharff Smith, “Curing Criminal Thoughts—​From Religious Conversion to Cognitive Therapy in Prison,” in Cultural Histories of Crime in Denmark, 1500 to 2000, ed. Louise Kallestrup, Tyge Krogh, and Claus Bundgård Christensen (New York: Routledge, 2018), 255–​72. 3 Peter Scharff Smith, “A Religious Technology of the Self: Rationality and Religion in the Rise of the Modern Penitentiary,” Punishment and Society 6, no. 2 (2004b): 195–​220. 4 Peter Scharff Smith Moralske hospitaler. Det modern fængselsvæsens gennembrud 1770-​1870 (Forum 2003), 198 ff.

Peter Scharff Smith  23

Figure 2.1  A panoptic prison school in Vridsløselille Penitentiary in Denmark with boxes to keep prisoners in solitary confinement during classes. Constructed 1890. Photo credit: Vridsløselille Prison Museum

On his transfer to the mental institution, the prison medical officer, Doctor Wiberg, noted in his file that the young man, besides the problems already cited, also suffered from insomnia, talked to himself, had a timid gaze, a reddish face, and a slightly racing pulse. Furthermore, he was weighed down by a melancholic mood, which expressed itself as constant sighs. Wiberg concluded that Henrik Nielsen’s state on delivery was primarily one of anxiety. At the mental hospital, the newly arrived prisoner was described as physically sound, albeit slightly “congested” (suffering from “accumulation of blood”) and complaining of headaches. Nielsen’s facial expression was stiff, motionless, and slightly anxious. He normally looked down, and his pupils were greatly dilated and sluggish in their movements. It was also observed that the patient had a lax stance and was very slow and lacking energy in his movements. On arrival, Henrik Nielsen was calm, but highly confused and otherwise passive. He seemed to have no understanding at all of where he was, having already forgotten the journey, and he thought he was still in a prison. Nielsen did not answer questions and concealed his face between his arms. The very next day, however, he was more lively and able to work with the other patients. Apart from constant complaints of headaches, the sentenced thief quickly improved and showed no signs of hallucinations,

24  Solitary Confinement—Effects and Practices and he displayed no opposition during his stay in the mental institution. On June 23, 1868 he was discharged as healed and transferred to the penitentiary in Christianshavn in Copenhagen, to serve the rest of his sentence in the company of other prisoners, without being subjected to solitary confinement.5

Different forms of solitary confinement Henrik Nielsen is very likely one of the hundreds of thousands of nineteenth-​ century victims of solitary confinement as practiced according to the Philadelphia model, a form of incarceration that became highly popular especially in Europe and not least in the Scandinavian countries, where such solitary confinement of sentenced prisoners was the norm, far into the twentieth century. We shall return to this particular form of isolation below and examine how, when, and where the severe negative health effects of solitary confinement were discovered. Indeed, it is one of the tragedies surrounding the history of the prison that the health effects of solitary confinement have been discovered many times over, and then subsequently misunderstood, ignored, or simply forgotten. In order to get an overview of the many and very different ways in which solitary confinement has been employed in prisons throughout history we need a typology of the various more or less official purposes behind these practices. The typology below is designed to cover the last approximately 200 years of prison history in that regard. When reading such a typology it is of course important to bear in mind what any scholar of the sociology of law and punishment will know—​that there is often a big difference between law in the books and law in practice. In other words, the official purpose of specific types of confinement can easily differ significantly from the way they are put into practice and from the results they actually produce. Furthermore, the purpose is often unclear and sometimes apparently even nonexistent. Nevertheless, generally speaking, purposes do constitute a reasonable starting point for creating an overview of how and why solitary confinement has been employed in our prisons. A recent review sets forth four common purposes of solitary confinement: 1) discipline, 2) protection, 3) security, and 4) prison administration.6 Today, especially, the use of solitary confinement as a disciplinary punishment for breaking prison 5 The Regional Archive of Seeland (Landsarkivet for Sjælland), “Vridsløselille statsfængsel,” case file no.  89/​67–​68, and Christian Tryde, Cellestraffens Indvirkning paa Forbrydernes mentelle Sundhedstilstand, 1871, 23 f. See also Frederik Bruun, Beretning fra kontoret for Fængselsvæsenet om Straffeanstalternes Tilstand i Tidsrummet fra 1ste Januar 1858 til 31te Marts 1863 (1868), 105. 6 Juan Mendez et al., “Seeing into Solitary: A Review of the Laws and Policies of Certain Nations Regarding Solitary Confinement of Detainees” https://​www.weil.com/​~/​media/​files/​pdfs/​2016/​un_​special_​report_​solitary_​confinement.pdf (2016), 22 ff. The review included two other categories of solitary confinement, which were labeled 5) other purposes, and 6) practices similar to solitary confinement.

Peter Scharff Smith  25 rules is to be found in many prison systems, although some countries specifically disallow such a practice.7 However, solitary confinement has been—​and currently is—​used for several other purposes as well. In this chapter, I will identify eleven different types of solitary confinement, which have been organized into four overall categories based on where they take place in the chain of criminal prosecution (pre-​trial or after a sentence), which kind of law the isolation is used according to (prison law, immigration law, etc.), and on the alleged purpose (to the degree that a purpose can be found at all). The four categories are: A) Solitary confinement of prisoners awaiting sentence and during counter intelligence (CI) interrogation: These three types of solitary confinement under this category are used primarily, although not solely, during pre-​trial procedures: at police stations and in jails, remand institutions, and various kinds of detainee camps, and against detainees who have not been sentenced. B) Solitary confinement of sentenced prisoners: The seven types of solitary confinement in this category are used primarily, although not exclusively, against sentenced prisoners. C) Solitary confinement according to immigration law: This category covers isolation of non-​citizens (asylum seekers, etc.) according to immigration law. D) Solitary confinement without a legal basis: The final category can be found on remand, in prisons, and other kinds of detention as well, and the purposes can vary considerably but are often administrative in some way. I will present all the eleven forms and purposes of solitary confinement contained within the above four categories.8 Following that, I  will focus on a number of specific forms of isolation and their effects in selected periods of prison history.

7 Mendez et  al., “Seeing into Solitary,” 22; Peter Scharff Smith, “Solitary Confinement:  An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement,” Torture 18, no. 1 (2008): 58. 8 This typology is partly based on a typology developed the Scandinavian Solitary Confinement network and first described in Peter Scharff Smith, Thomas Horn, Johannes F.  Nilsen, og Marte Rua, “Isolasjon i skandinaviske fengsler—​Skandinavisk praksis og etableringen av et skandinavisk isolasjonsnettverk,” Kritisk Juss, no. 3 (December 2013): 170-​191.

26  Solitary Confinement—Effects and Practices Solitary confinement of prisoners awaiting sentence and during CI interrogation 1. Solitary confinement in police detention. In some jurisdictions, detainees spent very little time in police detention and are quickly transferred to jails and prisons if facing criminal prosecution. In many jurisdictions, however, detainees can spend days and even longer stretches in police detention, and this sometimes takes place in solitary confinement. This can even be the case in democratic and advanced welfare states like Norway and Sweden, where detainees sometimes spend several days in strict solitary confinement in strip-​cells before being released or transferred to a remand institution.9 2. Solitary confinement as coercion. Solitary confinement has on several occasions been used coercively as part of an interrogation process—​to force out a confession or to gain intelligence (“intel”). For example, this has been done in the former Soviet Union, in South Africa during Apartheid, at Guantanamo Bay in Cuba during the “War on Terror,” and in US-​controlled prisons in Iraq and Afghanistan. Often in these cases, isolation was used together with other techniques and various forms of ill treatment.10 The question of coercion has also been discussed in connection with the Scandinavian model of pre-​trial isolation. 3. Solitary confinement during pre-​trial to avoid collusion. Another well-​known use of solitary confinement is during pre-​trial where isolation of individuals can be instigated in order to protect an ongoing criminal investigation—​i.e., to avoid collusion. While it is normal that restrictions are applied on a remand prisoners’ regime for exactly this reason, it is not standard practice to use prolonged solitary confinement. However, some nations have a special history in this regard. In a European context the practice of pre-​trial isolation has been termed a “Scandinavian phenomenon,” and Denmark, Norway, and Sweden have received international human rights criticism on that account during the last decades. Denmark has come a long way to solve this problem

9 Id. 10 See, for example, Physicians for Human Rights, Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact, June 2008, s. 77 f.; and Center for Constitutional Rights, Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba, July 2006, s. 16 f. See also Smith, “Solitary Confinement.”

Peter Scharff Smith  27 while Sweden remarkably continues to subject around two-​thirds of all remand prisoners to solitary confinement for this purpose.11 Solitary confinement of sentenced prisoners 4. Solitary confinement as a rehabilitative tool. This refers to the modern penitentiary and its heyday in the nineteenth century when solitary confinement was used not only to punish but also to reform prisoners—​especially in the Philadelphia prison model. How this practice could affect inmates has already been touched upon in the case of Henrik Nielsen. How and why prison reformers and law makers thought that isolation could produce rehabilitation will be addressed below, as will the actual results of this practice. Indeed, prison administrators and prisoners alike learned on a large scale during the nineteenth century that solitary confinement produces serious negative health effects.12 One could argue that when solitary confinement is used as a disciplinary measure in prison systems today it sometimes has an element of a rehabilitative thinking attached in cases where it is officially proscribed as a method of correcting prisoners’ behavior—​although that it is a quite different and very simplistic form of correctional ideology according to which harsh punishment will produce positive behavioral change (see Figure 2.2).13 5. Solitary confinement as “thought reform.” This particular use of solitary confinement resembles the nineteenth-​century Philadelphia model insofar as changing the thoughts and minds of prisoners is a direct policy goal. However, here we are not talking about achieving decriminalization but rather a much more ideological and political objective. There is a history here going back to the alleged “brainwashing” practices during the Cold War—​something to which I will return.14 This category does not always concern sentenced prisoners—​and in any case a sentence subjecting prisoners to thought reform is obviously political and normally carried out in dictatorships.

11 Smith, Peter Scharff. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” InCrime and Justice. Vol. 34, edited by Michael Tonry, 441–​528. Chicago: Chicago University Press, 2006; Smith, Horn, Nilsen, and Rua, “Isolasjon i skandinaviske fengsler.” 12 Smith, 2006. 13 Mendez et al. “Seeing into Solitary,” 24. 14 Kathleen Taylor, Brainwashing. The Science of Thought Control (New York: Oxford University Press, 2004).

28  Solitary Confinement—Effects and Practices

Figure 2.2  The panoptic prison church in Vridsløselille penitentiary in Denmark with isolation boxes for all prisoners. This isolation church was in operation from the prison opened in 1859 and until the early 1930s. Photo credit: Vridsløselille Prison Museum

A  contemporary example in this regard would be Chinese “re-​ education” facilities—​for example as reported by the UN Special Rapporteur on Torture in the case of institutions for women where “detainees alleged that they were held [in small solitary confinement cells] for up to 60 days, where they received ‘training’ to induce them to renounce their beliefs.”15 6. Solitary confinement as a preventive measure to uphold prison order. In the rhetoric of some prison administrators, and commonly also in prison law, the use of solitary confinement is often used and legitimized as a tool to uphold prison order. This can be in the form of some of the practices/​purposes mentioned in this chapter (as a disciplinary punishment and as protection of vulnerable prisoners), but it can also simply be a preventive measure applied by the prison administration. As several chapters in this volume address, prisoners



15

2008 UN General Assembly Report—​A/​63/​175, 19.

Peter Scharff Smith  29 in several U.S. states can be placed in strict confinement in supermax prisons simply because they are deemed to have a gang affiliation.16 However, there is no evidence that such a measure leads to lower levels of violence or an increase prison order. A study of facilities in three different US states concluded that “the effectiveness of supermax prisons as a mechanism to enhance prison safety remains largely speculative.”17 Indeed, some of the sparse research we have points in the opposite direction—​i.e., that solitary confinement can spark violence and trouble in prison.18 7. Solitary confinement as a disciplinary punishment for violating prison rules. Most prison systems feature solitary confinement among their repertoire of disciplinary punishments for prisoners. There are countless variations in this regard but typically, although not always, such punishment will last for a limited number of days or perhaps weeks. In Denmark, for example, the maximum duration of placement in isolation as a punishment for violating prison rules is four weeks. In some countries, like Norway, it is unlawful to impose solitary confinement as a disciplinary punishment. 8. Solitary confinement as protection of prisoners. This form of solitary confinement is quite often voluntary—​at least on paper. In reality the choice is limited, especially if this is the only form of protection available for a prisoner at serious risk in the general population. Especially vulnerable groups of prisoners are those sentenced for sexual offenses and inmates who are indebted to other prisoners. Also, in some jurisdictions prisoners are placed in protective custody against their will when the prison officials believe they have safety concerns. Furthermore, prisoners are sometimes isolated, for example in security or observation cells, because they are deemed suicidal. In those cases, isolation is rarely voluntary and the regime often involves close surveillance of the prisoner in question. 9. Solitary confinement on death row. Solitary confinement is sometimes also found to be an integral part of regimes on death row. For example, such a situation was uncovered by the Committee 16 See, for example, Lobel, Chapter 22, this volume. 17 Chad S. Briggs, Jody L. Sundt, and Thomas C. Castellano, “The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence,” Criminology 41 (2003): 1341–​1376, 1371. 18 See Lobel, Chapter 22, this volume.

30  Solitary Confinement—Effects and Practices for the Prevention of Torture (CPT) during its 1995 visit to Bulgaria. In a specific prison, two death row inmates were kept isolated in their cells and only allowed one hour of exercise and fifteen minutes’ use of sanitary facilities each day, while visits were limited to one per month. In addition, the prisoners were not allowed to work, to go to the library, or to attend communal activities. The CPT has similarly criticized death row arrangements in Ukraine.19 The use of solitary confinement on death row is very common in the United States, although pressure stemming from litigation is changing the situation. Solitary confinement according to immigration law 10. Solitary confinement according to immigration law. Recent decades have witnessed an increasing tendency to deprive immigrants of their liberty in detention centers.20 Criminologists have labeled this method “crimmigration”—​i.e., invoking punitive measures normally associated with criminal procedures against non-​citizens and asylum seekers.21 In several cases immigrants can be subjected to solitary confinement in the detention centers where they are placed—​not according to prison law but according to immigration law and for a wide variety of reasons. This is, for example, the case in Norway, Sweden, and Denmark.22 There is little focus and a lack of research in this highly problematic area. Solitary confinement without legal basis 11. De facto solitary confinement in institutions where people are deprived of their liberty. This covers a broad category of practices. As many prison researchers doing field work will know, prisons with single-​cell housing often house a number of prisoners who are alone in their cells most of the day although they are not 19 Jim Murdoch, The Treatment of Prisoners: European Standards, (Strasbourg: Council of Europe, 2006), 236f. 20 See, for example, Hungarian Helsinki Committee, Global Detention Project, Greek Council for Refugees, Italian Council for Refugees “Crossing a Red Line: How EU Countries Undermine the Right to Liberty by Expanding the Use of Detention of Asylum Seekers upon Entry,” 2019, https://​ www.globaldetentionproject.org/​crossing-​red-​line. 21 Katja Franko and Mary Bosworth, eds., The Borders of Punishment: Migration, Citizenship, and Social Exclusion (London: Oxford University Press, 2013). 22 Udlændingeloven nr. 863 af 25 juni 2013, § 37c (Denmark); Utlänningslag nr. 716 af 29. september 2005, Kapitel 11, § 7.  (Sweden); Forskrift om Politiets utlendingsinternat (Utlendingsinternatforskriften) § 10 (Norway). For further explanation, see Smith, Horn, Nilsen, and Rua, “Isolasjon i skandinaviske fengsler.”

Peter Scharff Smith  31 subjected to any kind of isolation officially. In Denmark, for example, this is not uncommon on remand where the regime is generally strict, where there are often no communal facilities, and where, in some institutions, the only access to extended social contact will be through being allowed to sit together in a cell with a co-​prisoner a couple of hours each day. However, several do not get this opportunity and wind up in conditions of de facto solitary confinement.23 A recent example from Norway was reported by the CPT during a visit in 2019: At Bergen Prison (Block A), a number of sentenced prisoners, who were not subjected to any formal restrictions and who, according to the management, did not pose a security risk, were nevertheless locked up in their cells for twenty-​two to twenty-​three hours per day (with only one hour of outdoor exercise), without being offered any purposeful activities. A few prisoners had been held for several years in a de facto solitary-​confinement-​type regime. Such a state of affairs is not acceptable.24

Indeed, some uses of solitary confinement have been brought to court and found illegal. One example is the case of Rikers Island jail in New York, where returning prisoners who had previously been in solitary confinement where forced back into such conditions. This practice was later found unlawful and stopped in 2015 following a lawsuit.25

A short history of solitary confinement and research into its effects In the following I will focus on a few specific isolation practices in order to show how the negative health effects of solitary confinement have been observed throughout the history of its use. Indeed, CI interrogation methods have even tried to utilize these effects for coercive purposes. First, I will take a look at the rise of large-​scale solitary confinement in the nineteenth century and the way in which experts and authorities eventually agreed that this was a severely dangerous practice. Following that, I will briefly show how the effects of solitary confinement 23 Peter Scharff Smith, “Punishment without Conviction? Scandinavian Pre-​trial Practices and the Power of the ‘Benevolent’ State,” in Embraced by the Welfare State? Scandinavian Penal History, Culture and Prison Practice, ed. Peter Scharff Smith and Thomas Ugelvik (London:  Palgrave Macmillan, 2017), 129–​55. 24 Committee for the Prevention of Torture (CPT), Report to the Norwegian Government on the Visit to Norway Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 28 May to 5 June 2018, The CPT/​Inf (2019), 1, 5. 25 The lawsuit was eventually settled providing plaintiffs with $175 for each day in solitary confinement, https://​www.nytimes.com/​2017/​12/​12/​nyregion/​rikers-​settlement-​solitary-​confinement.html.

32  Solitary Confinement—Effects and Practices were rediscovered after WWII in connection with encountering communist incarceration methods, sensory deprivation research, and the development of CI interrogation. Finally, I will take stock and look at the current situation.

Rehabilitation through isolation—​The rise of the modern penitentiary In spite of prison reforms and new prison constructions in late-​eighteenth-​ century England—​where solitary confinement was used to a certain extent—​it was to be on the other side of the Atlantic that the modern prison system had its real breakthrough. Here, the penitentiary evolved in a both rational and religious spirit. A preliminary development took place in Philadelphia in the 1790s, but not until the 1820s and 1830s did the United States emerge indubitably as the pioneering nation in prison reform. The “Auburn” and “Pennsylvania” models were developed in New York and Philadelphia and, over the course of a few years, became of keen interest around the world (see Figure 2.3).

Figure 2.3  Masturbation was considered a health problem in the 19th century isolation prisons and psychiatrists argued that such a practice could cause insanity. These gloves were used in Horsens penitentiary in Denmark until the 1930s in order to force prisoners from touching themselves. Photo credit: Horsens Prison Museum

Peter Scharff Smith  33 The Auburn system was put into practice at New  York’s Auburn prison in 1823. Prisoners were confined in solitary cells at night, but were put to hard labor with other prisoners during the day—​although the work was to be done in complete silence. One of the system’s foremost proponents, the strongly religious minister Louis Dwight, was convinced of its reforming potential, while the actual directors of the most well-​known institutions (Auburn and Sing Sing in New York) apparently were less enthused about reforming the inmates in accordance with the precepts.26 The Philadelphia system was developed in the “Eastern Penitentiary,” which was under construction from 1826 and put into use in 1829.27 Here, the inmates were subject to total isolation. They were put in single cells day and night, interrupted by brief walks in the courtyard (still without contact with other people) and visits from ostensibly morally healthy persons—​for example, the prison chaplain. Solitary confinement played a major role in both prison systems on the rationale that corrupting influences were thereby rooted out and the discipline and rehabilitation of the prisoner made possible. Isolation was also thought to be a formidable power that could promote the deterrent effect of punishment, thereby realizing the intended double purpose of the punishment: deterrence and rehabilitation. In Philadelphia the idea was that by complete segregation the prisoner would be left to self-​reflection, which would lead to a sort of cleansing of the soul. The solitude would be terrifying and therefore would induce within the prisoner an inner reckoning through which he came to acknowledge his crime and, by daily work and moral and religious influence, turn to the morally correct path. More precisely, the premise was that isolation would break the prisoner down mentally, whereafter work, Bible reading, worship services, and visits from the prison chaplain would build him back up as a better human being. In his new morally clarified state of mind, isolation in a cell would lose its terrifying character.28 The English prison expert William Crawford described just such a process: Day after day, with no companion but his thoughts, the convict is compelled to listen to the reproofs of conscience. He is led to dwell upon past errors, and to cherish whatever better feelings he may at any time have imbibed . . . The mind becomes open to the best impressions and prepared for the reception of those truths and consolations which Christianity can alone impart.29

26 Colvin, 1997: 90 f. 27 Ashley T. Rubin, The Deviant Prison:  Philadelphia’s Eastern State Penitentiary and the Origins of America’s Modern Penal System, 1829–​1913 (New  York:  Cambridge University Press, forthcoming 2020). 28 Reports of the Prison Discipline Society of Boston, 1972, vol. 2, sixth report 1831, 496. 29 Crawford, William (1834) ‘Report of William Crawford, Esq. on the penitentiaries of the United States addressed to his Majesty’s Principal Secretary of State for the Home Department’, in British Parliamentary Papers. Crime and Punishment –​PRISONS. No. 2, Session 1834. 12.

34  Solitary Confinement—Effects and Practices

The health effects of Pennsylvania-​model solitary confinement The Pennsylvania model was imported and used in many European nations, including France, England, Germany, Holland, Belgium, Portugal, Norway, Sweden, and Denmark.30 Harmful effects of solitary confinement practices were discovered during the nineteenth century and a sizable and impressively sophisticated literature accumulated and documented significant damage to prisoners.31 As observed by the Dutch criminologist Herman Franke, the new isolation prisons produced severe problems wherever they were put into use: “Again and again reports of insanity, suicide, and the complete alienation of prisoners from social life seriously discredited the new form of punishment.”32 For example, in 1841, the physician in a New Jersey penitentiary constructed on the Pennsylvania plan (enforcing a regime of strict solitary confinement) concluded: The opinions expressed heretofore on the effects of solitary confinement, are strengthened by every year’s experience. The more rigidly the plan is carried out, the more the spirit of the law is observed, the more its effects are visible upon the health of the convicts. A little more intercourse with each other, and a little more air in the yard, have the effect upon mind and body, that warmth has upon the thermometer, almost every degree of indulgence showing a corresponding rise in health of the individual.33

Francis C. Gray reached a similar conclusion in his impressive study of Prison Discipline in America from 1847. On the basis of statistical and qualitative evidence Gray concluded that from the experience of our own country hitherto, it appears that the system of constant separation [solitary confinement according to the Philadelphia model] as established here, even when administered with the utmost humanity,

30 Morris, Norval and David Rothman, (eds.) The Oxford history of the prison: The practice of punishment in western society. New York & Oxford: Oxford University Press, 1998; Nilsson, Roddy En välbyggd maskin, en mardröm för själen: Det svenska fängelsesystemet under 1800-​talet. (Lund: Lund University Press, 1999).; Smith, 2003. 31 See Bruun 1867; Gray 1847; Franke 1992; Henriques 1972; Smith, 2003; Smith, 2004a; Smith, 2006; Peter Scharff Smith “’DEGENERATE CRIMINALS’. Mental Health and Psychiatric Studies of DanishPrisoners in Solitary Confinement, 1870–​1920”, Criminal Justice and Behavior, Vol. 35 No. 8, August 2008 1048-​1064, 2008. 32 Franke 1992, 128. 33 Quoted from Smith, 2006, 459.

Peter Scharff Smith  35 produces so many cases of insanity and of death as to indicate most clearly, that its general tendency is to enfeeble the body and the mind.34

Several Philadelphia model prisons were also constructed in Germany, and throughout the later half of the nineteenth century a number of German psychiatrists described the negative health effects of solitary confinement in great detail.35 The most comprehensive historical data on the effects of solitary confinement, which have been described and analyzed so far, comes from Denmark and the Vridsløselille penitentiary, which opened in 1859 and was constructed on the American Pennsylvania model.36 A detailed analysis of the well-​kept archival records from the Vridsløselille prison reveal that problems with the mental health of prisoners arose quickly. During the period of 1859–​1873, at least one-​ third of all prisoners suffered from symptoms related to solitary confinement and according to the official statistics, around 3% became insane and were typically transferred to insane asylums around the country.37 The archival records show that around 12% of all prisoners subjected to the regime of solitary confinement were very seriously affected by their situation: “They were described, for example, as very sickly in appearance, deranged, hallucinating, having delusions . . . [or it was simply directly] stated that they could not bear the solitude.”38 In 1867, the prison governor at Vridsløselille, Frederik Bruun, published a book where he analyzed data from the prison records regarding the mental and moral state of the prisoners. Bruun concluded that: inmates in solitary confinement fell into a state of a total lack of energy and willpower, into a mental and physical laxity  .  .  .  which was either cured by means of fortifying medicine, a changed and improved diet, longer exercise spells or light work in the open air, or else developed into a depression, and subsequently, to higher degrees of mental disorder.39

The prison governor in other words described a form of personal disintegration where “physical and spiritual lethargy took the place of ordinary human 34 Gray, 1847, 181. 35 Paul Nitsche and Karl Wilmanns, The History of the Prison Psychoses (New York: Journal of Nervous and Mental Disease Publishing Co., 1912), Nervous and Mental Disease Monograph Series, no. 13. 36 Unfortunately Ian O’Donnell ignores this evidence in his misleading and completely inadequate discussion of historical data on the effects of solitary confinement. See Ian O’Donnell, Prisoners, Solitude, and Time (London: Oxford University Press, 2014), 34 ff. 37 Smith, 2004a, 22. 38 Id. 39 Bruun, 1867, 95–​96.

36  Solitary Confinement—Effects and Practices activity.”40 Accordingly, a common disorder among the inmates in solitary confinement was simply termed “lethargy” or “listlessness” in medical reports.41 The extensive problems with the solitary confinement regime in Vridsløselille continued until the system was disbanded in the early 1930s, and as the discipline of psychiatry developed, a range of new diagnoses were introduced to describe the health effects of solitary confinement, including for example “neuralgia,” “melancholia,” “nervousness,” and “hysteria”—​illnesses that were reported mainly and sometimes exclusively in prisons with solitary confinement regimes.42 Ironically, the development of psychiatry and the biological turn this discipline undertook during the second half of the nineteenth century meant that the health effects encountered in prisons were often explained as having a biological reason (often termed “degeneration”) and not a social/​situational cause. So despite a great willingness on the part of the early management in Vridsløselille penitentiary to acknowledge the effects of solitary confinement, the question was passed into the hands of the rising class of mental health professionals—​the psychiatrists—​who often removed the blame from the regime of solitary confinement and offered biological determinism as a substitute.43

Condemning the use of large-​scale isolation The international debate about the effects of solitary confinement was largely settled early in the twentieth century, when both experts and practitioners tended to agree that solitary confinement was harmful. As an example of this development, the US Supreme Court ruled in 1890, in a case concerning solitary confinement of a prisoner under sentence of death in the state of Colorado, that solitary confinement “was an additional punishment of the most important and painful character” and described vividly how solitary confinement in US nineteenth-​century prisons had affected the inmates and damaged their mental health severely.44 This condemnation of solitary confinement was somewhat slower to develop within the international community of prison experts, largely due to the continuing popularity of the Philadelphia model across several nations. Three international prison conferences were held between 1846 and 1857 during the heyday of the Philadelphia model and although both this and the Auburn system were heavily debated, there was general approval of separation and isolation

40

Smith, 2004a, 18. Id., 15. Smith, 2008, see for e­ xample 1059. 43 Id., 1062. 44 In re Medley, 134 U.S. 160 (1890). 41 42

Peter Scharff Smith  37 practices.45 It was not until the penitentiary congress in Prague in 1930 that international resolutions were drawn up that referred to some troubling aspects of solitary confinement. The congress specified that if solitary confinement was used for a short duration, adequate medical service was to be available. The congress furthermore advised that solitary confinement should not be used in connection with sentences of long duration.46 This agreement reflected the gradual international decline of the Philadelphia model and of the view that prolonged solitary confinement could be a natural part of serving a sentence. In 1939 when Wilson and Pescor published their book Problems in Prison Psychiatry, they were in no doubt as to the negative health effects of solitary confinement and simply concluded that prisoners subjected to the Philadelphia model “went insane instead of being reformed.” As a result, the authors argued optimistically, solitary confinement during both day and night was no longer practiced by any civilized nation.47 This was unfortunately not correct but nevertheless based on the observation that the Philadelphia model had generally fallen into disuse partly because of the known negative health effects of solitary confinement. However, solitary confinement was still used for various purposes and to different degrees in many prison systems.

Brainwashing and torture—​A rediscovery of the effects solitary confinement Discussions on the effects of solitary confinement resurfaced in the 1950s and the following two decades when sensory deprivation studies were carried out in reaction to, among other things, stories of the Chinese “brainwashing” of US prisoners of war (POWs) in the Korean War. Cases of “thought reform” were apparently achieved through the use of techniques that involved social isolation. Later research confirmed that solitary confinement was used as a coercive measure in some communist countries during the cold war. In the USSR, for example, the KGB used it pre-​trial against alleged “enemies of the state” as a coercive tool in an interrogation and confession process.48 These practices caught the attention of psychologists and psychiatrists who during the 1960s and 1970s conducted countless experiments in sensory deprivation. Briefly described, this research proved that conditions involving strict 45 Peter Scharff Smith, “Solitary Confinement—​History, Practice, and Human Rights Standards,” Prison Service Journal, no. 181 (January 2009): 3–​11. 46 Teeters, 1949, 38, 110, 172. See also Smith, 2006, 467. 47 Wilson and Pescor, 1939, 24. See also Smith, 2006, 466. 48 L. E. Hinkle and H. G. Wolff, “Communist Interrogation and Indoctrination of ‘Enemies of the State,’” Archives of Neurology and Psychiatry 76 (1956): 115–​74.

38  Solitary Confinement—Effects and Practices isolation and severe sensory deprivation could have drastic effects—​including for example hallucinations, confusion, lethargy, anxiety, panic, time distortions, impaired memory, and psychotic behavior—​ within very short time spans involving days and sometimes only hours.49 The CIA was very interested in both the communist prison practices and the scientific sensory deprivation research, as can be seen in the 1963 CIA manual Counterintelligence Interrogation as well as its later 1983 Human Resource Exploitation Training Manual.50 The former describes how solitary confinement can be used coercively together with focused interrogations. According to the 1963 Counterintelligence Interrogation manual, the interrogator can exploit the otherwise isolated detainee’s intense need for social contact and sensory input: As the interrogator becomes linked in the subject’s mind with the reward of lessened anxiety, human contact, and meaningful activity, and thus with providing relief for growing discomfort, the questioner assumes a benevolent role . . . the regressed subject [will] view the interrogator as a father-​figure. The result, normally, is a strengthening of the subject’s tendencies toward compliance.51

It is now well known how US personnel have used solitary confinement in similar ways at the Guantanamo Bay detention camp, as well as in facilities in Iraq and Afghanistan.52

Current practices—​How many times do we need to discover the effects of isolation? During the 1980s, solitary confinement once again regained topicality in the wake of the creation of supermax prisons in the United States. During the 1990s the monitoring of the CPT in Europe also began to turn attention towards various isolation practices in prison.53 But solitary confinement has also been debated and researched extensively in different local contexts. For example, the above mentioned Scandinavian version of pre-​trial solitary confinement created an intense critical debate in Denmark from the late 1970s and onwards and 49 Smith, 2006, 471. 50 Both manuals are available at https://​nsarchive2.gwu.edu/​NSAEBB/​NSAEBB122/​index. htm#kubark, last accessed March 2019. 51 “KUBARK Counterintelligence Interrogation,” 90, accessed March 2019, https://​nsarchive2. gwu.edu//​NSAEBB/​NSAEBB122/​index.htm#kubark. 52 See, for example, Physicians for Human Rights, Broken Laws, Broken Lives, 77 ff.; Center for Constitutional Rights, Report on Torture, 16 ff. 53 See Reiter, Chapter  5, this volume; Haney, Chapter  8, this volume; Nowak, Chapter  3, this volume; Mendez, Chapter 7, this volume; Lobel and Smith, Chapter 1, this volume.

Peter Scharff Smith  39 later on also in Norway and Sweden.54 Additionally, the increasing focus on solitary confinement in the UN along with the introduction of National Preventive Mechanisms in several countries (according to the optional protocol to the UN Convention Against Torture)55 has also strengthened critical attention towards isolation practices in many countries. Today, we see numerous powerful efforts and reform initiatives to limit or ban the use of solitary confinement in many different countries driven by diverse groups involving, for example, NGOs, researchers, lawyers, prisoners, their relatives, as well as prison staff and prison administrators, and sometimes law makers. This book tells the story of some of these reforms and struggles—​from large-​scale court cases in Canada and the United States, to reform initiatives driven from the inside of prison systems with the aid of researchers and NGOs from the outside.56 Despite these developments the use of solitary confinement is still widespread in many prison systems in different parts of the world.57 In some countries “penal populism” and “tough on crime” policies have even worsened the situation. Recent research demonstrate that even in Norway, Sweden and Denmark, countries normally considered relatively lenient in the area of punishment and imprisonment, at least 20,000 referrals to solitary confinement take place each year in the national prison systems (most short term but some lasting weeks, months and on rare occasions for years).58 And here we are talking about relatively small prison systems with low prison population rates. Take Denmark, for example, where in 2017 there were 11,312 referrals to prison (remand and sentenced) altogether and the same year there were close to 5,000 referrals to solitary confinement for various reasons and for various (often shorter) durations.59 This ratio in itself reveals that solitary confinement is a very common practice used as a routine measure. Taken together, the history described in this chapter tells us a sad story about how the effects of solitary confinement have been discovered on several occasions in different places and in different contexts during the last two centuries, but often to little avail. Indeed, these effects have been forgotten, ignored, or even used coercively at several important junctures during the history of imprisonment, and as a result dangerous prison practices have evolved and continued. On a more positive note we have arguably also learned some important lessons during recent decades about what it takes to reform solitary confinement practices. The partial successes that have been achieved in different national and 54 Smith, “Punishment without Conviction?,” 129–​55. 55 For a list of signatories, see https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=IND&mtdsg_​ no=IV-​9-​b&chapter=4&clang=_​en. 56 See Arvay and Latimer, Chapter 20, this volume; Lobel, Chapter 22, this volume; Raemisch, Chapter 18, this volume; and Bertsch, Chapter 19, this volume. 57 Mendez et al., “Seeing into Solitary.” 58 Rua and Smith (eds.), 2019 (forthcoming). 59 Kriminalforsorgen “Statistik 2017,” Kriminalforsorgen 2018.

40  Solitary Confinement—Effects and Practices local contexts have demonstrated that serious reform of various solitary confinement practices is clearly possible and will be strengthened by a number of key factors including: research documenting the effects of solitary confinement; national and internal pressure in the form of critique from experts, NGOs, and outspoken practitioners; international critique from human rights mechanisms; media involvement; political interest and action; and perhaps most importantly, dialogue and collaboration between civil society and key state actors—​i.e., when correctional services work with experts, prisoners, and NGOs.60 As mentioned in Chapter 1, this book is in itself clearly the result of such a process and several of the chapters are evidence that reform is possible.

Bibliography Briggs, Chad S., Jody L. Sundt, and Thomas C. Castellano. “The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence.” Criminology 41 (2003): 1341–​1376. Bruun, Frederik. Beretning fra kontoret for Fængselsvæsenet om Straffeanstalternes Tilstand i Tidsrummet fra 1ste Januar 1858 til 31te Marts 1863. 1868. Center for Constitutional Rights. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba. July 2006. Central Intelligence Agency. “Human Resource Exploitation Training Manual.” 1983. Accessed March 2019. https://​nsarchive2.gwu.edu/​NSAEBB/​NSAEBB122/​index. htm#kubark. Central Intelligence Agency. “KUBARK Counterintelligence Interrogation.” 1963. Accessed March 2019. https://​nsarchive2.gwu.edu//​NSAEBB/​NSAEBB122/​index.htm#kubark. Committee for the Prevention of Torture. Report to the Norwegian Government on the Visit to Norway Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 28 May to 5 June 2018. The CPT/​Inf (2019), 1. Colvin, Mark. Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth-​Century America. New York: St. Martin’s Press, 1997. Foucault, Michel. Discipline & Punish. New York: Vintage Books 1995. Franke, Herman. “The Rise and Decline of Solitary Confinement.” British Journal of Criminology 32 (1992): 125–​43. Franko, Katja, and Mary Bosworth, eds. The Borders of Punishment. Migration, Citizenship, and Social Exclusion. New York: Oxford University Press, 2013. Gray, Francis C. Prison Discipline in America. Boston: Little, Brown, 1847. Henriques, U. R. Q. “The Rise and Decline of the Separate System of Prison Discipline.” Past and Present 54 (1972): 61–​93.

60 Concerning creating prison reform based on research and dialogue, see Peter Scharff Smith, “Reform and Research—​Re-​Connecting Prison and Society in the 21st century,” International Journal for Crime, Justice and Social Democracy Vol. 4, no. 1 (2015): 33–​49.

Peter Scharff Smith  41 Hinkle, L. E., and H. G. Wolff. “Communist Interrogation and Indoctrination of ‘Enemies of the State.’” Archives of Neurolology and Psychiatry 76 (1956): 115–​74. Hungarian Helsinki Committee, Global Detention Project, Greek Council for Refugees, Italian Council for Refugees. “Crossing a Red Line: How EU Countries Undermine the Right to Liberty by Expanding the Use of Detention of Asylum Seekers upon Entry.” 2019. https://​www.globaldetentionproject.org/​crossing-​red-​line. Ignatieff, Michael. A Just Measure of Pain. London: Macmillan, 1978. In re Medley, 134 U.S. 160 (1890). Kriminalforsorgen. “Statistik 2017.” Kriminalforsorgen 2018. Accessed April 2019. https://​www.kriminalforsorgen.dk/​wp-​content/​uploads/​2018/​12/​kriminalforsorgens-​ statistik-​2017-​2-​udgave.pdf. Mendez, Juan, et  al. Seeing into Solitary:  A Review of the Laws and Policies of Certain Nations Regarding Solitary Confinement of Detainees. https://​www.weil.com/​~/​media/​ files/​pdfs/​2016/​un_​special_​report_​solitary_​confinement.pdf, 2016. Murdoch, Jim. The Treatment of Prisoners: European Standards. Strasbourg: Council of Europe, 2006. Nilsson, Roddy. “The Swedish Prison System in Historical Perspective:  A Story of Successful Failure?” Journal of Scandinavian Studies in Criminology and Crime Prevention 4, no. 1 (2003): 1–​20. Nitsche, Paul, and Karl Wilmanns. The History of the Prison Psychoses. Nervous and Mental Disease Monograph Series, no. 13. New York: Journal of Nervous and Mental Disease Publishing Co., 1912. O’Donnell. Prisoners, Solitude, and Time. London: Oxford University Press, 2014. Physicians for Human Rights. Broken Laws, Broken Lives: Medical Evidence of Torture by U.S. Personnel and its Impact. June 2008. Rubin, Ashley T. The Deviant Prison:  Philadelphia’s Eastern State Penitentiary and the Origins of America’s Modern Penal System, 1829–​1913. London: Cambridge University Press, 2020. Smith, Peter Scharff. “Curing Criminal Thoughts—​ From Religious Conversion to Cognitive Therapy in Prison.” In Cultural Histories of Crime in Denmark, 1500 to 2000, edited by Tyge Krogh, Louise Kallestrup, and Claus Bundgaard Christensen, 255–​72. New York: Routledge, 2018. Smith, Peter Scharff. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” In Crime and Justice. Vol. 34, edited by Michael Tonry, 441–​528. Chicago: Chicago University Press, 2006. Smith, Peter Scharff. “Isolation and Mental Illness in Vridsløselille 1859–​1873—​A New Perspective on the Breakthrough of the Modern Penitentiary.” Scandinavian Journal of History 29, no. 1 (2004a): 1–​25. Smith, Peter Scharff. “Punishment without Conviction? Scandinavian Pre-​Trial Practices and the Power of the ‘Benevolent’ State.” In Embraced by the Welfare State? Scandinavian Penal History, Culture and Prison Practice, edited by Peter Scharff Smith and Thomas Ugelvik, 129–​55. London: Palgrave Macmillan, 2017. Smith, Peter Scharff. “Reform and Research—​Re-​Connecting Prison and Society in the 21st Century.” International Journal for Crime, Justice and Social Democracy Vol. 4, no. 1 (2015): 33–​49. Smith, Peter Scharff. “A Religious Technology of the Self. Rationality and Religion in the Rise of the Modern Penitentiary.” Punishment and Society 6, no. 2 (2004b).

42  Solitary Confinement—Effects and Practices Smith, Peter Scharff. “Solitary Confinement—​History, Practice, and Human Rights Standards.” Prison Service Journal, no. 181 (January 2009): 3–​11. Smith, Peter Scharff. “Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement.” Torture 18, no. 1 (2008): 56–​62. Smith, Peter Scharff, Thomas Horn, Johannes F.  Nilsen, og Marte Rua. “Isolasjon i skandinaviske fengsler—​Skandinavisk praksis og etableringen av et skandinavisk isolasjonsnettverk.” Kritisk Juss, no. 3 (December 2013). Taylor, Kathleen. Brainwashing:  The Science of Thought Control. New  York:  Oxford University Press, 2004. Teeters, Negley K. World Penal Systems:  A Survey. Philadelphia:  Pennsylvania Prison Society, 1944. Tryde, Christian. Cellestraffens Indvirkning paa Forbrydernes mentelle Sundhedstilstand. København: H.J.Schultz, 1871. Wilson, J. G., and M. J. Pescor. Problems in Prison Psychiatry. Caldwell, ID: Caxton, 1939.

3

Global Perspectives on Solitary Confinement—​Practices and Reforms Worldwide Manfred Nowak*

Introduction This chapter puts the practice of solitary confinement in the context of and distinguishes it from other aggravated forms of deprivation of liberty, such as incommunicado detention, secret detention, and enforced disappearance. Thereafter, the case law of international and regional monitoring bodies and courts in respect of solitary confinement will be analyzed and compared with my own experience as United Nations Special Rapporteur on Torture as well as with the experience of Juan Mendez who succeeded me in this function. On the basis of medical and psychological research showing the harmful effects of solitary confinement on the mental and physical health of detainees, we both contributed to the development of soft law standards, such as the Istanbul Statement and the Mandela Rules, adopted by the UN General Assembly in 2015. By taking powerful scientific evidence into account, these soft law standards, which in principle prohibit every form of solitary confinement for more than fifteen days, are much more advanced than the fairly permissive standards of hard law, as interpreted by regional human rights courts and universal treaty monitoring bodies.

Right to personal liberty The right to personal liberty is one of the oldest and most important human rights. No one shall be confined to a certain narrowly bounded location, such as a room, a house, a prison, or similar detention facility, where he or she is prevented * Professor of law, University of Vienna and Secretary General of the Global Campus of Human Rights in Venice; Independent Expert Leading the UN Global Study on Children Deprived of Liberty and Former UN Special Rapporteur on Torture. Manfred Nowak. Global Perspectives on Solitary Confinement—Practices and Reforms Worldwide In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0003

44  Global Perspectives on Solitary Confinement from leaving voluntarily. However, the right to personal liberty is not an absolute right. On the contrary, deprivation of personal liberty in the form of detention or imprisonment has long represented the most common means used by the state to fight crime and maintain internal security.1 With the gradual elimination of other forms of punishment, such as the death penalty and corporal punishment, imprisonment has even gained in significance over the last centuries. While Article 9 of the International Covenant on Civil and Political Rights (CCPR) prohibits any form of arbitrary arrest and detention, leaving it in principle to the domestic lawmaker to define non-​arbitrary types of arrest or detention, Article 5 of the European Convention on Human Rights (ECHR) contains an exhaustive list of lawful forms of arrest or detention. This list includes, e.g., imprisonment after conviction by a criminal court; police custody and pre-​trial detention of a criminal suspect; educational supervision of a minor; the detention of persons in psychiatric hospitals or in special institutions for alcoholics, drug addicts, or vagrants; and detention of aliens with a view to deportation or extradition. For every human being, whether a child or adult, deprivation of liberty constitutes a humiliating experience. It makes human beings dependent on others to satisfy their most elementary human needs and exposes them to a much higher risk of violence, cruel, inhuman, or degrading treatment, or even torture. To avoid this risk, CCPR Article 10 provides that all persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Accused persons shall be separated from convicted persons, juveniles from adults, and the penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. In order to prevent torture and other forms of violence and ill treatment in detention, the United Nations in 2002 adopted the Optional Protocol to the Convention against Torture (OPCAT), which establishes a system of regular and preventive visits by independent international and national bodies to all places where people are or may be deprived of liberty. Nevertheless, after six years of experience as UN Special Rapporteur on Torture, having visited hundreds of prisons, police lock-​ups, military barracks, intelligence facilities, psychiatric hospitals, migration detention centers, old peoples’ homes, children’s homes, institutions for persons with disabilities, drug rehabilitation centers, and other places of detention, and having carried out thousands of interviews with detainees in all world regions, I  submitted a comprehensive “Study on the Phenomenon of Torture, Cruel, Inhuman or Degrading Treatment or Punishment, Including an Assessment of the Conditions of Detention,” in which I arrived at the conclusion that there exists a veritable world prison crisis, and 1 Cf., e.g., Manfred Nowak, U.N. Covenant on Civil and Political Rights—​CCPR Commentary, 2nd rev. ed. (Kehl/​Strasbourg/​Arlington: Engel Publisher, 2005), 211 ff.

Manfred Nowak  45 that detainees are among the most vulnerable human beings who deserve a special UN Convention on the Rights of Detainees.2

Enforced disappearance While every form of detention or imprisonment has a certain humiliating element, there are specific forms of deprivation of liberty that bear an increased risk of violating the rights to personal liberty, integrity, and dignity. During the Latin American military dictatorships of the 1970s and 1980s, the phenomenon of enforced disappearances became widely practiced. Opponents of these military regimes were abducted in the middle of the night from their homes by heavily armed persons of the state security apparatus, usually hooded and without uniforms, and driven away in vehicles without numbered plates. They were kept in military barracks or secret places of detention, and were usually tortured and often killed. When the families inquired about their whereabouts, police officers, military commanders, and politicians pretended to have no information. While some victims of enforced disappearance survived this extremely brutal form of secret detention for many years, the families must also be considered as victims of enforced disappearance, as they were forced for many years to live an uncertain life between hope and despair, often deprived of the family income contributed by the breadwinner. As a former long-​term member of the UN Working Group on Enforced or Involuntary Disappearances and UN expert responsible for the Special Process on Missing Persons in the former Yugoslavia, I can personally testify to the immense suffering that the practice of enforced disappearance imposes on the disappeared persons, their families, and the wider community. In 2006, the United Nations adopted the International Convention for the Protection of All Persons from Enforced Disappearance (CED) as a reaction to these heinous practices of abuse of state power. Article 2 defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” The last part of this definition expresses the very purpose of the practice of enforced disappearances, namely to place such persons outside the protection of the law. The detention facilities at the US military base of Guantánamo Bay and CIA black sites established by the Bush administration 2 Cf. Manfred Nowak, Final Report of the UN Special Rapporteur on Torture, UN Doc. A/​HRC/​13/​ 39/​Add.5, 61 ff (paras. 229–​37) and 71 (para. 259(e)).

46  Global Perspectives on Solitary Confinement in the so-​called “war on terror” constitute infamous examples of what it means to be placed outside the protection of the law.3 For these reasons, the practice of enforced disappearances is absolutely prohibited under international law. According to CED Article 1(2), no exceptional circumstances whatsoever, whether a state of war, internal political instability, or any other public emergency, may be invoked as a justification for enforced disappearance. As this practice is similar to torture, states also have an obligation to ensure that enforced disappearance is recognized as a crime with appropriate sanctions under domestic criminal law. Widespread or systematic practice of enforced disappearance constitutes a crime against humanity.4

Secret detention Article 17(1) CED clearly stipulates that no one shall be held in secret detention. In our joint UN Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of 2010, we defined the term “secret detention” as any deprivation of liberty by a state, where the person is not permitted any contact with the outside world (“incommunicado detention”), and when “the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/​her liberty hidden from the outside world, including, for example family, independent lawyers or non-​governmental organizations, or refuses to provide or actively conceals information on the fate or whereabouts of the detainee.”5 Secret detention is not only prohibited by CED Article 17; it also constitutes a violation of the right to personal liberty, as it deprives detainees of their right to habeas corpus, i.e., to challenge their detention before an independent court in accordance with Article 9(4) CCPR.6 For criminal suspects, secret detention also violates their right to a fair trial in accordance with CCPR Article 14.7 International humanitarian

3 Cf. Leila Zerrougui, Leandro Despouy, Manfred Nowak, Asma Jahangir, and Paul Hunt, Situation of detainees at Guantánamo Bay (joint report of five UN Special Procedures of the former UN Commission on Human Rights of 27 February 2006), UN Doc. E/​CN.4/​2006/​120 (“Guantánamo Study”); Martin Scheinin, Manfred Nowak, Shaheen Sardar Ali, and Jeremy Sarkin, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism (submitted to the UN Human Rights Council on 19 February 2010), UN Doc. A/​HRC/​13/​42 (“Secret Detention Study”). See also US Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Executive Summary, declassified on December 3, 2014. 4 See CED Article 5 and Article 7(1)(i) and 7(2)(i) of the Rome Statute of the International Criminal Court 1998. 5 Secret Detention Study, 11. 6 Id., 14 ff. 7 Id., 16 ff.

Manfred Nowak  47 law, applicable in armed conflicts, prohibits secret detention as clearly as international human rights law does.8 According to Article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention governing the treatment of civilians establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees. In fact, the “Secret Detention Study” concluded that “Every instance of secret detention also amounts to a case of enforced disappearance,” as defined in CED Article 2.9 Widespread or systematic practices of secret detention therefore amount to a crime against humanity.

Incommunicado detention Every instance of secret detention is by definition incommunicado detention.10 However, not every instance of incommunicado detention amounts to secret detention. Incommunicado detention means that the detainee is not allowed to communicate with any person, i.e., family members, friends, lawyers, judges, or doctors, outside of the detention facility. The family or lawyers might be informed by the authorities that the detainee is “safe” or might even be told where the detainee is held, but at the same time be prevented from communicating with the detainee. Incommunicado detention is, in principle, prohibited under international humanitarian law, which requires that all prisoners of war and civilian detainees must be registered and provided an opportunity to immediately inform their family and a centralized information bureau of their detention and any subsequent transfer, and must be permitted ongoing contact with family members and others outside the place of detention.11 Article 70 of the Third Geneva Convention specifies that immediately upon capture, or not more than one week after arrival at a camp, “every prisoner of war shall be enabled to write directly to his family.” Article 5 of the Fourth Geneva Convention permits the detaining power to deny these rights only in exceptional individual cases “where absolute military security so requires.”

8 Id., 27 ff. 9 Id., 17. 10 Id., 18. 11 Articles 48, 70, and 122 of the Third Geneva Convention; Articles 25, 26, 41, 78, 79, 106, 107, 116, 128, and 136 of the Fourth Geneva Convention. See Yves Henckaerts and Louise Doswald-​Beck, Customary International Humanitarian Law, vol. I (Cambridge: Cambridge University Press, 2005), 344 ff; Secret Detention Study, 28.

48  Global Perspectives on Solitary Confinement Under international human rights law, the situation is very similar. The right to habeas corpus under CCPR Article 9(4) requires that every detainee has a right to take proceedings before a court in order that that court may decide “without delay” on the lawfulness of his or her detention. If the detainee is suspected of having committed a criminal offence, he or she must be brought “promptly” before a judge in accordance with CCPR Article 9(3). These provisions make clear that incommunicado detention without access to a court shall never be longer than a few days.12 Incommunicado detention of fifteen days was already considered by the Human Rights Committee during the 1980s as a violation of the right of detainees to be treated with humanity and respect of dignity under CCPR Article 10.13 Prolonged incommunicado detention reaches the threshold of cruel, inhuman, or degrading treatment in violation of CCPR Article 7 fairly quickly, and for a longer period it even may amount to torture.14 CED Article 17(2) adds specific obligations of States parties aimed at preventing secret or incommunicado detention. States shall guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty. States shall also guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law. Communication of detainees with family members is also protected by the right to privacy and family life under CCPR Article 17.

Solitary confinement The remainder of this chapter will focus on solitary confinement regimes in prisons. First, I will analyze relevant case law, after which I will recount some of my own experiences monitoring such practices in numerous countries in different parts the world. Following that, I will discuss the Istanbul Statement on the Use and Effects of Solitary Confinement and explain how I worked with this statement and the issue of solitary confinement as the UN Special Rapporteur on Torture. Finally, I will describe how the advancement of international human

12 See, e.g., Human Rights Committee, General Comment 8/​16 of 27 July 1982, § 2.  See also Nowak, CCPR Commentary, 230 ff and 1094; Secret Detention Study, 18 ff. 13 See, e.g., Human Rights Committee, Miguel Angel Estrella v. Uruguay, Comm. No. 74/​1980, Lucía Arzuaga Gilboa v.  Uruguay, Comm No. 147/​1983; Human Rights Committee, General Comment 20/​44 of 3 April 1992, § 11. See Nowak, CCPR Commentary (note 1), 245 and 1115. 14 See, e.g., Human Rights Committee, El-​Megreisi v. Libya, Comm No. 440/​1990. See Nowak, CCPR-​Commentary, 176 f.

Manfred Nowak  49 rights standards in this area has continued, culminating with the “Mandela” prison rules.

Case law of regional human rights courts and the UN Human Rights Committee While enforced disappearance and secret detention are absolutely prohibited under international law, and incommunicado detention is only permitted in exceptional circumstances for a few days, solitary confinement is more difficult to assess under current standards of international law. It has been practiced for centuries by many states in all world regions for various purposes, such as during pre-​trial detention with the aim of preventing criminal suspects from tampering with evidence, as a judicial punishment, as well as during imprisonment as a disciplinary punishment or for the purpose of preventing violence and isolating violent detainees. There are various degrees of solitary confinement but, in principle, solitary confinement does not exclude communication with the outside world, such as visits by family members, friends, lawyers, doctors or detention monitoring bodies. As opposed to incommunicado detention, detainees subjected to solitary confinement may, in principle, also communicate with the outside world by means of letters or telephone calls, and they may leave their single cells for limited periods to take a shower, for recreation or even for work. However, the degree to which such “benefits” are allowed in practice is often extremely limited. The lack of any universally agreed definition of solitary confinement, the different degrees of isolation from other detainees and the outside world, as well as a previous lack of medical and psychological research on the negative effects of solitary confinement on the health of the persons concerned resulted in case law that seems fairly permissive, even of long-​term solitary confinement. Whenever the European Court found solitary confinement to be inhuman or degrading treatment in violation of ECHR Article 3, these findings were usually not only based upon the length of solitary confinement but also on other factors, such as particularly harsh conditions of detention.15 If the Court had to assess whether solitary confinement as such violated Article 3, it took various factors into account, such as the number of visits by lawyers or doctors and the danger which the respective persons posed to the prison environment and society at large. In

15 See, e.g., Mathew v. the Netherlands, No. 24919/​03, judgment of 29 September 2005; Ilascu and Others v. Moldova and Russia, No. 48787/​99, Grand Chamber judgment of 8 July 2004; Iorgov v. Bulgaria, No. 40653/​98, judgment of 11 March 2004; Bamouhammad v. Belgium, No, 47687/​13, judgment of 17 November 2015.

50  Global Perspectives on Solitary Confinement a number of leading cases involving well-​known terrorists, the Court even accepted solitary confinement of several years as not constituting inhuman or degrading treatment. For example, in a Grand Chamber judgment in the famous case of Öcalan v. Turkey of 2005, the European Court decided that the strict isolation of the leader of the Kurdish Workers Party as the sole detainee of an island prison for six years without any access to television and only a visit by lawyers once a week, “did not reach the minimum level of severity required to constitute inhuman or degrading treatment” in violation of ECHR Article 3.16 Similarly, in the equally well-​known case of “Carlos the Jakal,” the Grand Chamber held in 2006 that even eight years in solitary confinement in La Santé Prison in Paris, where he had twice weekly visits from a doctor, a monthly visit from a priest and frequent visits from his lawyers, as well as access to TV, books, and newspapers, did not reach the level of severity for inhuman or degrading treatment either.17 In a highly controversial 4:3 judgment in Rohde v. Denmark, the Court found in 2005 that solitary confinement for almost one year in pre-​trial detention did not amount to inhuman or degrading treatment either—​this despite professional medical agreement that solitary confinement had caused Rohde to become a paranoid psychotic.18 In a number of cases against Italy, the Court also found that up to twelve years of solitary confinement with a maximum of a one hour visit per month behind a glass screen from family members did not amount to inhuman or degrading treatment in violation of ECHR Article 3.19 The Inter-​American Court of Human Rights, on the other hand, held already in its first judgment in the landmark disappearance case of Velasquez-​Rodriguez v. Honduras of 1988 that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being.”20 Similarly, in Loayza-​Tamayo v. Peru and Cantoral-​Benavides v. Peru, the Court found that isolation in a small cell, without ventilation or natural light, and restrictions of visiting rights constitute a form of cruel, inhuman, or degrading treatment.21 However, one needs to consider that the Court also took other factors, such as harsh treatment, into 16 European Court of Human Rights, Öcalan v. Turkey, No. 46221/​99, Grand Chamber judgment of 12 May 2005. 17 European Court of Human Rights, Ramirez Sanchez v. France, No. 59450/​00, Grand Chamber judgment of 4 July 2006. 18 European Court of Human Rights, Rohde v. Denmark, No. 69332/​01, judgment of 21 July 2005. 19 European Court of Human Rights, Messina v. Italy, No. 25498/​94, judgment of 28 September 2000; Argenti v. Italy, No. 56317/​00, judgment of 10 November 2005; Enea v. Italy, No. 74912/​01, Grand Chamber judgment of 17 September 2009. 20 Inter-​American Court of Human Rights, Velasquez-​Rodriguez v. Honduras, case 7920, judgment of 29 July 1988. 21 Inter-​American Court of Human Rights, Loayza-​Tamayo v. Peru, No. 11.154, judgment of 17 September 1997; Cantoral Benavides v. Peru, No. (ser. C.) No. 69; judgment of 18 August 2000.

Manfred Nowak  51 account when it reached violations of the right to physical, mental, and moral integrity in Article 5 of the American Convention on Human Rights (ACHR). In its General Comment of 1992, the UN Human Rights Committee noted that “prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7” of the CCPR.22 However, in the well-​known case of the former leader of the “Revolutionary Movement Túpac Amaru,” Polay Campos v. Peru, the Committee held that nine months of pre-​trial solitary confinement for 23 hours a day in a high-​security prison near Puno at an altitude of 4,000 meters in freezing temperatures, in a cell measuring 2 x 2 meters, without electricity or water, not being allowed to write or to speak to anyone, only amounted to a violation of Article 10 CCPR.23 His solitary confinement after his conviction at a naval base prison near Lima for one year without any visits by any friends or relatives and without any written correspondence was, however, found to constitute inhuman treatment in violation of CCPR Article 7.24 Similarly, almost eight years of solitary confinement on death row in Trinidad and Tobago was only considered as a violation of CCPR Article 10.25 Even thirteen years of solitary confinement of a political prisoner in South Korea aimed at changing his political opinion was only considered as a violation of Article 10, but not as cruel or inhuman treatment in violation of CCPR Article 7.26

Personal experience as UN Special Rapporteur on Torture During my six years term as UN Special Rapporteur on Torture between 2004 and 2010, I interviewed many detainees who had been, for various reasons, held in solitary confinement for a prolonged period of time. Already during my first fact-​finding mission to Georgia in early 2005, in which I also visited the self-​ governing territory of Abkhazia, I found a death row prisoner in the basement of an old prison in Sukhumi who had been held in total solitary confinement for at least a year in a 3 x 4-​meter cell without any contact to other prisoners or the outside world. It took the prison wardens a considerable time to open his cell door which had been so rusty that they needed special tools. This was for me a clear indication that this door had not been opened for many months or even years. When I tried to speak to the prisoner, I realized that he was living in

22 UN Human Rights Committee, General Comment 20/​44 of 3 April 1992, § 6. 23 UN Human Rights Committee, Polay Campos v. Peru, No. 577/​1994, final views of 6 November 1997, § 8.4. 24 Id., § 8.6. 25 UN Human Rights Committee, Kennedy v. Trinidad and Tobago, No. 845/​1998, final views of 26 March 2002. 26 UN Human Rights Committee, Kang v. Korea, No. 878/​1999, final views of 15 July 2003.

52  Global Perspectives on Solitary Confinement another world, surrounded only by religious symbols, preparing himself mentally for his execution despite the fact that the death penalty had been prohibited in all Council of Europe member states already for a considerable time. He was in a state of mind which made any meaningful conversation impossible.27 During my second fact-​finding mission to Mongolia in 2005, I expressed concern about the special isolation regime.28 At the high security Prison No. 405, I met 9 prisoners serving 30-​year sentences, held in isolation in 3 x 3-​meter cells for up to 24 hours per day. The prisoners were visibly depressed, expressed despair, had suicidal thoughts, and said they would have preferred the death penalty to solitary confinement. The total isolation of the detainees was not motivated by security considerations. According to Mongolian law at that time, prisoners serving thirty year sentences had to be kept in a strict regime of solitary confinement as an additional punishment with the explicit purpose of imposing severe pain or suffering. There was no legal pathway to alter this regime, even if they behaved exceptionally well. I found this type of strict regime as additional punishment to long-​term prison sentences also in many other countries, above all in post-​Soviet states. I concluded that the entire regime amounted to cruel and inhuman treatment, if not torture. In relation to death row prisoners in Detention Centre No. 461 (Gants Hudag) and Zunmod Detention Centre, the fact that they were detained in complete isolation, were continuously kept handcuffed and shackled, and denied adequate food constitutes additional punishments which could only be qualified as torture.29 I was particularly shocked that death row prisoners were kept in dark isolation cells for the last months before their execution and during this last period of their life were only granted visits by one family member to say farewell. I raised this extremely cruel and inhuman treatment with many state officials, including the president of the Republic. I was very relieved when I was later told by the government of Mongolia that it had decided to abolish capital punishment. In the Peoples Republic of China, which I  also visited in 2005, I  received allegations of prolonged solitary confinement at Beijing Municipal Women’s Re-​Education through Labour Facility.30 Although prison staff indicated that prisoners were held for only up to seven days in the small solitary cells of the Intensive Training Section, detainees alleged that they were held there for up to sixty days, where they received “training” to induce them to renounce their beliefs. I was also shocked when Rebiya Kadeer, the leader of the Uighur movement, explained to me how she had been held in a solitary confinement cell in a



27

See UN Doc. E/​CN.4/​2006/​6/​Add.3, para. 53. See UN Doc. E/​CN.4/​2006/​6/​Add.4, paras.  47–​49. 29 Id., paras. 50–​54. 30 See UN Doc. E/​CN.4/​2006/​Add.6, appendix 2, para. 10. 28

Manfred Nowak  53 prison in Urumqi for about two years in complete isolation. Most of the time she had to kneel in the middle of the room, guarded by four female prison wardens in each corner. She was not allowed to speak and was even prevented from having eye contact with her guards. In relation to detainees at the US Naval Base at Guantánamo Bay, I was informed by the US Government that thirty days of isolation was the maximum period permissible. However, many detainees told me that they were put back in isolation after very short breaks, so that they were in quasi-​isolation for up to eighteen months.31 I concluded that the uncertainty about the length of detention and prolonged solitary confinement of the prisoners amounted to inhuman treatment.32 I visited Jordan, the only country in the Arab world that granted me access, in 2006. At the Al-​Jafr Correction and Rehabilitation Centre, which was closed soon after my visit, I  received many consistent allegations of newly arrived prisoners being beaten in solitary confinement cells.33 I further received many allegations of detention in solitary cells in various detention centers for long periods.34 The conditions were particularly harsh and cruel in the Headquarters of the General Intelligence Department and the Headquarters of the Criminal Investigation Department in Amman. In Paraguay, I received consistent allegations of detention in solitary cells for more than one month.35 In the main women’s prison of Asuncion, various women told me that they were kept in total isolation in so-​called “Calabazos” for up to two weeks serving disciplinary punishments.36 Most of these women seemed to suffer from these traumatic experiences and were extremely afraid to be put again in solitary confinement as a reprisal for having told us about their experience. In Nigeria, I heard numerous allegations that prisoners were held in solitary confinement for up to two weeks on disciplinary grounds. At Kaduna Medium Security Prison, I  found a teenage boy suffering from severe mental illness, locked up in a punishment cell with his feet shackled.37 In Indonesia, I received allegations of detention in solitary cells for more than one month.38 I was also told by many prisoners that they were held in dark isolation cells for up to one week as a “welcome” treatment immediately after their arrival in the prison in order for them not to think that this would be a hotel.39

31 32 33 34 35 36 37 38 39

See UN Doc. E/​CN.4/​2006/​120, para. 53. Id., para. 87. See UN Doc. A/​HRC/​4/​33/​Add.3, appendix, para. 9. Id., para. 21. See UN Doc. A/​HRC/​7/​3/​Add.3, appendix I, para. 46. Id., para. 4. See UN Doc. A/​HRC/​7/​3/​Add.4, appendix I, para. 115. See UN Doc. A/​HRC/​7/​3/​Add.7, appendix I, para. 34. Id., para. 82.

54  Global Perspectives on Solitary Confinement In Denmark and Greenland, where I found by far the best prison conditions of all countries that I had visited, I nevertheless felt the need to express concern about the extensive use of solitary confinement.40 It had been regularly used during criminal investigations in pre-​trial detention for up to six months (or in exceptional cases even longer), as a measure to manage certain dangerous categories of convicted prisoners, such as members of motorbike gangs, or as a disciplinary punishment in prisons for up to four weeks. I was surprised that some members of motorbike gangs, whom I visited in their isolation cells in which they had been held for many months, seemed to be in a comparably good mood and expressed even a certain understanding for this harsh treatment. On the other hand, I spoke to a woman who had been held in solitary pre-​trial confinement for two weeks, who showed clear symptoms of severe psychological effects. I concluded that, depending on the particular circumstances of every case, prolonged use of solitary confinement “can lead to severe mental suffering, which in particular circumstances may be qualified as inhuman treatment.”41 One of my last fact-​finding missions brought me to Jamaica in 2010. Many police lock-​ups and remand centres were severely overcrowded and the other conditions of detention terrible. Prisoners on death row in the “Gibraltar 1” section of St. Catherine prison were held in strict isolation in fairly dark and dirty cells. They were allowed to go outside for one or two hours each day, but were not allowed to see any other prisoners. The cells had no toilets, and the prisoners complained about the presence of maggots and other insects in the cells.42

The Istanbul statement on the use and effects of solitary confinement In December 2007, a group of experts who had carried out medical, psychological, historical, and other research on solitary confinement organized an International Psychological Trauma Symposium in Istanbul. I  was invited to present my experiences as UN Special Rapporteur on Torture. On December 9, 2007, the twenty-​four experts participating in this symposium adopted the “Istanbul Statement on the Use and Effects of Solitary Confinement,” which I annexed to my report to the General Assembly in 2008, a significant part of which dealt with solitary confinement.43 Since no universal definition of solitary 40 See UN Doc. A/​HRC/​10/​44/​Add.2, paras.  37–​46. 41 Id., para. 74. The use of pre-​trial solitary confinement has since gone down in Denmark but the use of punitive isolation has risen dramatically—​see Smith, this volume. 42 See UN Doc. A/​HRC/​16/​52/​Add.3, para.48. 43 Manfred Nowak, Report of the UN Special Rapporteur on Torture of 28 July 2008, UN Doc. A/​63/​ 175, 18 ff. and Annex (22 ff.).

Manfred Nowak  55 confinement existed at the time, we agreed to define solitary confinement as “the physical isolation of individuals who are confined to their cells for twenty-​two to twenty-​four hours a day.”44 According to the Istanbul Declaration, “Solitary confinement is applied in broadly four circumstances in various criminal justice systems around the world: as a disciplinary punishment for sentenced prisoners; for the isolation of individuals during an ongoing criminal investigation; increasingly as an administrative tool for managing specific groups of prisoners; and as a judicial sentencing. In many jurisdictions solitary confinement is also used as a substitute for proper medical or psychiatric care for mentally disordered individuals. Additionally, solitary confinement is increasingly used as a part of coercive interrogation, and is often an integral part of enforced disappearance or incommunicado detention.” With respect to the psychological effects of solitary confinement, the experts agreed that it had been convincingly documented on numerous occasions that “solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90% of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.” With the adoption of the Istanbul Declaration, we agreed that the use of solitary confinement should be restricted to an absolute minimum. In particular, it should be absolutely prohibited for death row and life-​sentenced prisoners by virtue of their sentence, for mentally ill prisoners and for children under the age of eighteen. In my special report on this topic, I reiterated many of our joint conclusions and recommendations in Istanbul and explained that the history of the use and effects of solitary confinement on detainees has been well documented, for example by research carried out by Peter Scharff Smith while at the Danish Institute of Human Rights.45 In modern prison systems of the world one can trace back the origins of the philosophy of rehabilitation through isolation to the Pennsylvania prison model, developed in the 1820s at the Cherry Hill Prison in Philadelphia, Pennsylvania, United States of America. The aim of the model was to rehabilitate criminals through solitary confinement; prisoners spent all their time in their cells, including for work, in order to reflect on their transgressions and return to

44 “Istanbul Statement on the Use and Effects of Solitary Confinement,” December 9, 2007, 22. 45 See, e.g., Peter Scharff Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature,” in Crime and Justice, vol. 34 (Chicago: University of Chicago Press, 2006): 441–​528.

56  Global Perspectives on Solitary Confinement society “morally cleansed.” The Pennsylvania model was subsequently imported and used in many European and South-​American countries from the 1830s.46 I added that the key adverse factor of solitary confinement is that socially and psychologically meaningful contact is reduced to the absolute minimum, to a point that is insufficient for most detainees to remain mentally well-​functioning. Moreover, the effects of solitary confinement on pre-​trial detainees may be worse than for other detainees in isolation, due to the perceived uncertainty of the length of detention and the potential for its use to extract information or confessions. Pre-​trial detainees in solitary confinement have an increased rate of suicide and self-​mutilation within the first two weeks of solitary confinement.47 In conclusion, I expressed the opinion that “the use of solitary confinement should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort. Regardless of the specific circumstances of its use, effort is required to raise the level of social contacts for prisoners: prisoner-​ prison staff contact, allowing access to social activities with other prisoners, allowing more visits and providing access to mental health services.”48

Juan Mendez as UN Special Rapporteur on Torture Juan Mendez, my successor as UN Special Rapporteur on Torture, devoted a special report in 2011 on the phenomenon of solitary confinement, repeated the definition in the Istanbul Statement, and expressed his particular concern about prolonged forms of solitary confinement, which he defined as any period of solitary confinement in excess of fifteen days. He explained this distinction with the fact that, “according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible.”49 He stressed that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions. He finds solitary confinement to be contrary to one of the essential aims of the penitentiary system, which is to rehabilitate offenders and facilitate their reintegration into society.”50 Furthermore, the report concluded:  Before considering the severe mental pain or suffering solitary confinement may cause when used as a punishment, during pre-​trial detention, indefinitely or for a prolonged period, for juveniles or persons with mental disabilities, it can amount to torture or cruel, inhuman 46 UN Doc. A/​63/​175, para. 81. 47 Id., para. 82. 48 Id., para. 83. 49 Juan Mendez, Report of the UN Special Rapporteur on Torture of 5 August 2011, UN Doc. A/​66/​ 268, § 26. 50 Id., para. 79.

Manfred Nowak  57 or degrading treatment or punishment.”51 Juan Mendez urged states to prohibit the imposition of solitary confinement as punishment—​either as a part of a judicially imposed sentence or a disciplinary measure. Instead, he recommended that states develop and implement alternative disciplinary sanctions to avoid the use of solitary confinement.52 Finally, he recommended that states should take necessary steps to put an end to the practice of solitary confinement in pre-​trial detention. They should “improve the efficiency of investigation and introduce alternative control measures in order to segregate individuals, protect ongoing investigations, and avoid detainee collusion.”53 Most importantly, he advocated the absolute prohibition of solitary confinement for juveniles54 and persons with mental disabilities55 as well as of any form of prolonged solitary confinement, i.e., in excess of fifteen days.56

The “Mandela Rules” The “Mandela Rules,” i.e., the revised United Nations Standard Minimum Rules for the Treatment of Prisoners of 2015, followed the Istanbul Statement and the report and recommendations of Juan Mendez by defining solitary confinement as “the confinement of prisoners for twenty-​two hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of fifteen consecutive days.”57 According to the Mandela Rules, any form of indefinite or prolonged solitary confinement shall be prohibited.58 In addition, solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. Solitary confinement shall not be imposed on women and children as well as in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.59 Our joint efforts as UN Special Rapporteurs on Torture were based upon increasing medical and psychological evidence about the harmful effects 51 Id., para. 81. 52 Id., para. 84. 53 Id., para. 85. 54 I  reiterate this absolute prohibition in the Global Study on Children Deprived of Liberty, presented to the UN General Assembly in October 2019. 55 Id., para. 86 56 Id., para. 88. 57 United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), adopted unanimously by the UN General Assembly in Res. A/​70/​175 of 17 December 2015, Rule 44. 58 Id., Rule 43(1)(a) and (b). 59 Id., Rule 45.

58  Global Perspectives on Solitary Confinement of prolonged solitary confinement. I consider it as a significant success of the drafters of the “Mandela Rules” that within a period of less than ten years, the UN General Assembly could be convinced to unanimously agree on a universal prohibition of prolonged solitary confinement, i.e., isolation of detainees for any period exceeding fifteen days. These soft law developments seem to go far beyond the fairly reluctant attitude of the European Court of Human Rights and other treaty monitoring bodies. While the Istanbul Declaration of December 2007, the respective reports of UN Special Rapporteurs on Torture of 2008 and 2011, and the Mandela Rules of 2015 are based to a considerable extent on the medical and psychological evidence of severe harmful effects of solitary confinement and, therefore, apply equally to all human beings, the jurisprudence of treaty monitoring bodies is inclined to balance human rights of detainees with legitimate interests of states to apply judicial or disciplinary punishments, to maintain order, to lock away dangerous prisoners, and to conduct criminal investigations in a manner that excludes any tampering with evidence. In my opinion, this permissive attitude of judicial and quasi-​judicial bodies has not taken the overwhelming and more recent medical and psychological evidence against the practice of solitary confinement sufficiently into account.

Conclusions The overwhelming medical and psychological evidence about the harmful effects of prolonged solitary confinement has led to powerful soft law developments, such as the Mandela Rules, in which the UN General Assembly in 2015 unanimously agreed on a prohibition of prolonged solitary confinement, i.e., isolation of detainees for any period exceeding fifteen days. By comparison, the jurisprudence of the European Court of Human Rights and other treaty monitoring bodies has been much more reluctant to take this evidence sufficiently into account. In my opinion, a key lesson to be gleaned from the history set forth in this chapter is to convince the judicial and quasi-​judicial national, regional, and international bodies to fully incorporate the powerful medical and psychological evidence that persuasively demonstrates that prolonged solitary confinement in any form presents such an elevated risk of harm to the individual that it must be universally prohibited.

Bibliography Nowak, Manfred. U.N. Covenant on Civil and Political Rights—​CCPR Commentary. Kehl/​ Strasbourg/​Arlington: Engel Publisher, 2005. Smith, Peter Scharff. Crime and Justice. Chicago: University of Chicago Press, 2006.

4

Solitary Confinement across Borders Sharon Shalev*

They can give you a TV, a radio and books, but at the end of the day, in your solitary cell, you are alone with yourself, and the four walls around you. –​Prisoner, United Kingdom

There is something profoundly and fundamentally wrong about locking up a fellow being behind a closed door and depriving them, deliberately and quite consciously, from human company and human touch. It is not surprising that “solitary confinement,” as it is generically known, is, especially when inflicted for a prolonged time, considered to be an extreme form of custody and one which, under international law, may constitute inhuman and degrading treatment and even torture.1 Its extremity notwithstanding, solitary confinement is found in most prison systems internationally, used for an array of different and often contradictory purposes including punishment, protection, prevention, and prison administration. It is also used for “enemies of the state”—​people charged with terrorist acts, espionage, and treason. Where the death penalty is used, for example in the United States and Japan, prisoners on death row will often be held in solitary confinement. In other countries, for example the former Soviet republics, where the death penalty has been abolished but replaced with life sentences, these will often be served in solitary confinement. The exact nature of the practice, the * Research Associate, the Centre for Criminology, University of Oxford, and Associate, Mannheim Centre for Criminology, London School of Economics and Political Science (LSE). Dr. Shalev holds an LLM in International Human Rights Law and a PhD is in Criminology. 1 See “Istanbul Statement on the Use and Effects of Solitary Confinement,” adopted at the International Psychological Trauma Symposium (Istanbul, December 2007), http://​www. solitaryconfinement.org/​Istanbul; UN Special Rapporteur on Torture, Interim Report to the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN DOC A/​66/​268 (Geneva: United Nations, 2011); United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), resolution adopted by the General Assembly on December 17, 2015, UN DOC A/​RES/​70/​175.

Sharon Shalev. Solitary Confinement across Borders In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0004

60  Solitary Confinement across Borders number of people subjected to it, and the length of time they can expect to spend in solitary vary greatly between jurisdictions. This chapter looks at the use of solitary confinement in three jurisdictions where I  have conducted research:  England and Wales, New Zealand, and the United States.2 It focuses on the long-​term use of solitary confinement as a tool for managing those individuals classified and labeled as the most dangerous or troublesome in the prison system and in particular in England and Wales’s Close Supervision System. It looks at recent developments and asks what learning there might be for other jurisdictions.

Data from three jurisdictions First, let us look at some raw data on the use of imprisonment in general and solitary confinement in particular in England and Wales, the United States, and New Zealand. The overall use of imprisonment in all three jurisdictions varies substantially, with the United States leading the way with a staggering 2,121,600 people held in federal and state prisons and jails in 2016, meaning that the United States incarcerated 655 people per 100,000 of the general population (estimated at 323.9 million) that year.3 In England and Wales, in 2018, some 83,673 souls were held in prisons and detention centres, at a rate of 141 people per 100,000 of the general population.4 New Zealand’s prison population is by far the smallest of the three, though it has expanded substantially in recent years. Compared to both the United Kingdom and the United States, the smaller prison population reflects a much smaller gen­ eral population, but New Zealand’s imprisonment rate is in fact higher than that of the United Kingdom: In 2017, New Zealand imprisoned 10,695 people, at a rate of 220 people per 100,000 of the general population (estimated at 4.86 million).5 Do the general trends in national imprisonment rates persist through to each country’s use of solitary confinement as a potentially illuminating measure of penal punitiveness? In other words, can one jurisdiction be said to be more 2 The studies referred to have been reported in the following publications:  Sharon Shalev and Kimmett Edgar, Deep Custody:  Segregation Units and Close Supervision Centres in England and Wales (London: Prison Reform Trust, 2016); Sharon Shalev, “Thinking Outside the Box? A Review of Seclusion and Restraint Practices in New Zealand” (Auckland:  New Zealand Human Rights Commission, 2017). Both of these sources are available online at www.solitaryconfinement.org). The US supermax prison is discussed in Sharon Shalev, Supermax: Controlling Risk through Solitary Confinement (Cullompton: Willan Publishing, 2009). As other contributions in this edited volume focus on US practices, this chapter will only refer to the United States briefly. 3 Roy Walmsley, “World Prison Brief,” 2018, last accessed June 1, 2018, http://​www.prisonstudies. org/​world-​prison-​brief-​data. 4 Id. 5 Id.

Sharon Shalev  61 punitive as measured by its use of solitary confinement? Answering that question is not straightforward. Firstly, ascertaining the extent of the use of solitary is not a simple task as data on the use of solitary is not usually collected and analyzed centrally.6 To further complicate matters, the different definitions and names given to solitary confinement practices in different jurisdictions, and the use of different measurements for gathering data, makes any meaningful comparison difficult. The introduction of an internationally agreed definition of solitary confinement as “the confinement of prisoners for twenty-​two hours or more a day without meaningful human contact” in Rule 44 of the revised United Nations Standard Minimum Rules for the Treatment of Prisoners (now the Nelson Mandela Rules), may go some way to resolve the issue of definitions, but the variety of names and uses of solitary confinement means that ensuring that one compares like with like remains a complicated task. With these limitations in mind, some data collated for our studies by Her Majesty’s Prison and Probation Service for England and Wales (HMPPS, previously known as the Prison Service) and the New Zealand Department of Corrections showed some differences in the frequency and length of time people spent in solitary confinement in both jurisdictions. In England and Wales, in the first quarter of 2014 (January–​March), when Kimmett Edgar and I  conducted our Deep Custody study,7 there were 7,889 instances of segregation in total. Almost 30% of these lasted fourteen days or longer, the length of time after which the segregation becomes “prolonged,” and therefore prohibited treatment under international soft law, and when the potential for psychological damage from segregation increases.8 In New Zealand, based on the data provided by the Department of Corrections for my “Thinking Outside the Box” report, there were four times as many “segregation events” relative to the size of the prison population, but only 8% lasted longer than fourteen days, and very few stays were longer than thirty days.9 Women in New Zealand were much more likely to be segregated than men, and for longer times. 6 I hope to remedy this lacuna by proposing a new tool for comparative analysis of solitary confinement practices (forthcoming). 7 The study was carried out jointly with the UK based charity, the Prison Reform Trust. This was a comprehensive, independently funded nationwide examination of the capacity, functions and operation of segregation units and Close Supervision Centres. 8 See Sharon Shalev, “Solitary Confinement as a Prison Health Issue,” in World Health Organization (WHO) Guide to Prisons and Health, ed. S. Enggist, L. Moller, G. Galea, and C. Udesen (Copenhagen: World Health Organization, 2014), 27–​35; Peter Scharff Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature,” Crime and Justice 34, no. 1 (2006): 444–​528; Craig Haney, “Restricting the Use of Solitary Confinement,” Annual Review of Criminology 1 (2018): 285–​310. 9 For fuller data, see Shalev and Edgar, Deep Custody, 148–​49, and Shalev, Thinking Outside the Box?, 25–​26, respectively.

62  Solitary Confinement across Borders By contrast, in England and Wales there was little difference between men and women in the use of segregation. In both jurisdictions, people from ethnic minority groups were overrepresented in segregation units. In New Zealand, taking all forms of segregation together, Maori and Pacific Islanders accounted for some 62% of all segregation events. This figure is almost identical to their representation in prison more generally, but is grossly disproportionate to their representation in New Zealand’s general population (where Maori and Pacific Islanders make for 14.6% and 6.9% of the population, respectively). In England and Wales, black or black British prisoners were segregated proportionately more often than their white and Asian or Asian British counterparts, though again the more striking difference was in their overrepresentation in overall rates of imprisonment. The most significant difference between the jurisdictions was in their overall use of segregation. This is not the place for a detailed examination of the US statistics, and the flow measures of segregation events used in our New Zealand and England and Wales studies cannot be readily compared to the excellent data on those in restricted housing at a single point in time collected by Judith Resnik and colleagues.10 It is nonetheless clear though that long-​term segregation is a far bigger part of the US prison system than it is in England and Wales or New Zealand. The ASCA-​Liman report shows that 4.9% of the US custodial population is in long-​term segregation at a single point in time.11 In England and Wales, in contrast, even if every segregation cell in the prison estate was filled with someone who had been in segregation for fifteen days or more, that would still represent less than 2% of the total prison population. We may conclude, then, that there is great variation in the extent of the use of solitary confinement between the different jurisdictions.

The different uses of solitary confinement: Official typologies As in most other countries, or at least in Western democracies, New Zealand, England and Wales, and the United States all have at least three “types” of solitary confinement, including punitive or disciplinary segregation in response to an offence committed in prison or a violation of a prison rule; protective segregation of vulnerable prisoners from the rest of the prison population for their own protection; and what is known as “administrative segregation,” whereby 10 Association of State Correctional Administrators (ASCA) and the Arthur Liman Public Interest Program, Aiming to Reduce Time-​in-​Cell (New Haven, CT: Yale Law School, 2016). 11 Id., 23.

Sharon Shalev  63 prisoners are isolated from their peers because they are disruptive or because of a perception that they are dangerous or a high risk to others. Each of these “types” is governed by different processes, rules, and regulations, which I do not discuss here. It is nonetheless important to note that “administrative segregation” is potentially the most problematic form of solitary confinement, as the decision to place someone in conditions that are known to be harmful to health and well-​ being can be based on administrative perceptions of risk rather than actual behavior, or indeed it can be rooted in administrative convenience. It is also usually longer-​term and often open-​ended. From the isolated individual’s perspective, the key element of the experience is the fact of being isolated from others for the majority of the day. Beyond that, the exact conditions, provisions, and prohibitions in solitary confinement units vary substantially not only between countries, but also within them. The official typology of solitary confinement is usually accompanied by additional specific deprivations that are attached to each “type.” For example, tear-​ proof clothing for those at risk of suicide; only unlocking the individual’s solitary cell in the presence of six prison officers dressed in full riot gear for those labeled as dangerous; or, no canteen goods or television for those placed in punishment cells. The design and fixtures of units, including cell size and state of repair; amount of natural light; ventilation; internal plumbing; furnishings; amount and type of in-​cell property the prisoner can keep; and access to a telephone, fresh air, and exercise, will also help shape the experience, as will staffing levels and budgets. Finally, prison-​and department-​specific policies, and the prison’s ethos and staff attitudes also dictate the exact nature of the isolation and the depth of the pains of imprisonment it causes.12 I now turn to examine, briefly, how and when solitary confinement is used in New Zealand and in England and Wales.

Solitary confinement practices in New Zealand In New Zealand, there are three main types of units designed to house prisoners in solitary confinement:  punitive segregation units (sometimes known as “pounds,” as in “dog pounds,” or “The Block”) for prisoners who were found guilty of a disciplinary offence in prison; At Risk Units (ARU) for vulnerable prisoners including those suffering mental illness, and prisoners at risk of self-​ harm or suicide; and Management Units for the longer-​term management of prisoners who are seen as posing a management concern or a threat to prison 12 G. Sykes, The Society of Captives:  A Study of a Maximum Security Prison (Princeton, NJ: Princeton University Press, 1958).

64  Solitary Confinement across Borders order (what is termed in many jurisdictions “administrative segregation”). While some of these prisoners may have committed serious prison offences, others have not necessarily done anything, but there is a perception that there is a high risk that they will engage in disruptive activities in the future. According to data provided to me by the Department of Corrections, of the 18 adult prisons it operated in 2016, 15 prisons had an At Risk Unit (together recording 7,540 stays); 9 had a Management Unit (together recording 5,313 stays); and 15 had a “Separates” (disciplinary segregation) unit (together recording 3,517 stays). The various segregation cells that I saw—​of all types—​had an in-​cell toilet/​ basin combination unit. Toilets were typically unscreened, and most had no toilet seat or lid. A mechanism which I encountered in segregation units visited in New Zealand—​and one which I had not encountered in any other country13—​ allowed officers to control the number of times that each prisoner can flush the toilet. Worse still, the number of “permitted flushes” varied from as few as three flushes daily in one prison to ten in another and fifteen in yet another unit. In the Management Units, which are designed for longer stays in segregation, some cells were equipped with a toilet and a shower, a TV, radio, and a power point. In a design feature reminiscent of the isolation cells in the “separate penitentiaries” of the nineteenth century,14 and which one can find in some of the US supermax units, cells in many of the Management Units also had an adjacent individual exercise yard, with an electronic door which could be opened remotely, meaning that the prisoner could take daily exercise without direct staff contact, further reducing his or her exposure to human contact. At Risk cells were very similar to those in a Management Unit, but with fewer furnishings and without an adjacent yard. Most At Risk Units also had two or three “round cells” or “dry cells” which contained nothing other than a concrete slab with a thin mattress covered by tear-​proof plastic, and a cardboard bedpan. Where the prison was in possession of a tie-​down or restraint bed, it was usually located in the At Risk Unit. Some At Rrisk cells had a glass front, and all were monitored by closed circuit television, which raised serious privacy concerns. Prisoners housed in these units could only keep the bare minimum inside their cell and were initially required to wear a gown made of tear-​proof materials.15 Though officially intended as therapeutic places where vulnerable

13 A mechanism allowing staff to override the plumbing system in any given cell or row of cells is fairly standard and can be used when, for example, prisoners attempt to flood their cells. This, however, is different from a mechanism regulating the actual number of times a toilet can be flushed. 14 Cells in Eastern State Penitentiary in Pennsylvania and Pentonville prison in London, for example, both of which were considered as prototypes of the separate system of the time, had a small individual yard attached to the isolation cells. 15 Shalev, Thinking Outside the Box?,  30–​31.

Sharon Shalev  65 prisoners could be safely supported, there was little to distinguish At Risk Units from Management Units or indeed punishment units, and in many ways the additional deprivations and humiliating clothing meant that conditions in them were worse than those in management or punishment units. My review of solitary confinement practices in New Zealand concluded that the lack of communal areas for congregated activities, the impoverished regimes, and the minimal and distant staff-​prisoner contact observed in most of the units visited meant that New Zealand was not fulfilling its international obligation to treat all prisoners with respect for their human dignity. I also criticized the high use of different forms of restraint, and in particular the use of the so-​called “restraint beds,” where prisoners could be restrained by all four limbs, sometimes for several hours and even days, and recommended that the use of these beds be abolished.16 I further suggested that At Risk Units may violate human rights laws by their very nature, as they isolate people with mental health issues, contrary to the now well-​established requirement to exclude the mentally ill from segregation.17 Other issues of concern were the lack of clear routes into and out of both Management and At Risk units, inadequacy of prisoner complaint mechanisms, and the lack of proper documentation and review processes. Another source of great concern was the excessive use of restraints and the disproportional use of management and disciplinary segregation cells for Maori and Pacific Islanders, who, at the time of my review, accounted for almost 80% of “directed segregations” (punitive and managerial segregation).18 But perhaps most concerning, and potentially the biggest obstacle to a change in the use of solitary confinement, was the Department of Corrections’ insistence

16 For further detail, see New Zealand Chief Ombudsman Judge Peter Boshiers’ excellent report on the use of restraints, A Question of Restraint 2017). 17 In response to these criticisms the New Zealand Department of Corrections informed me that it has reviewed its use of restraint beds and will limit their use to four prisons (letter from DOC Chief Executive, March 9, 2017). In April 2019 the DOC announced that it is banning the use of restraint beds altogether (New Zealand Herald, 11 April 2019, ‘Corrections to remove and ban ‘tie-​ down’ restraints in NZ prisons’ By Lydia Clarke.) The DOC has also embarked on a major review of the At Risk Units, including a plan to build a new secure mental health unit for people with a “high level of need.” A 2016 Department of Corrections brochure further elaborates that the intended unit will “make it easier for us to treat and manage people with mental health disorders on site. The aim is to assess and intervene early to treat people before their behaviour escalates (or deteriorates), which will not only reduce the demand for our more acute services within prison, but also that of in-​patient beds in secure facilities.” New Zealand Department of Corrections, Change Lives Shape Futures: Investing in Better Mental Health for Offenders (Wellington, 2016). The question of whether people with severe mental health issues should be in prison at all remains open, and in any case at the time of writing it is not at all clear if these reforms will simply tinker around the edges or actually put a stop to the unacceptable practice of isolating people suffering mental health issues as a matter of course. 18 Shalev, Thinking Outside the Box?, 26.

66  Solitary Confinement across Borders that it does not “do” solitary confinement and repeated focus on the alleged dangerousness of its prison population as justification for harmful practices.19 Until and unless a culture of denial and the “us”-​and-​“them” attitudes cease, the prospects for a meaningful change are limited. I return to the importance of a change of culture later in this chapter.

Solitary confinement practices in England and Wales In England and Wales, the units where a prisoner can be held in solitary confinement, regardless of the reasons for the placement, are called “segregation units” or “care and separation units.” These units can be found in most prisons, including lower-​security prisons, in varying sizes that do not always reflect the prison’s security designation but instead its design legacy or historic role, or indeed its Governor’s attitude and philosophy. According to figures provided by the Prison Service for the Deep Custody study, in early 2015 there were a total of 1,586 segregation cells across England and Wales. Most, but not all, stays in segregation units were relatively short. The duration of stay for the sample of prisoners who participated in Deep Custody ranged from one to fourteen days (71% percent of the sample), fourteen to forty-​two days (20% percent), and 9% were segregated for longer than eighty-​four days. Seven percent of those interviewed had been segregated for over a year. Though the exact physical conditions in these units depend on the prison’s age and design, most are equipped with a window, a toilet, a sink, and a bed, and conditions are austere but mostly decent. The units we visited varied in age and design. Some were recently built and others dated back to Victorian times, and some were originally designed for a different purpose. Many had sealed air quality and poor temperature control. The acoustics of some units meant that discussions on the landing could be heard from every cell, affording little quiet time and compromising confidentiality in conversations at a cell door. With one or two exceptions, outdoor exercise yards were concrete pens, containing no exercise equipment or other means for prisoners to exert themselves physically.20 Daily regimes in segregation units were universally impoverished with prisoners spending upwards of twenty-​three hours inside their sparsely furnished cells.

19 For example, see a tweet accompanying a video issued by the New Zealand Department of Corrections stating, “We don’t use solitary confinement—​but sometimes we have to restrict prisoners’ contact to keep everyone safe. We call this segregation.” Twitter, October 2017, https://​ twitter.com/​CorrectionsNZ/​status/​925579921677737984. 20 Shalev and Edgar, Deep Custody,  35–​60.

Sharon Shalev  67

The Close Supervision Centers Q: How are you finding it here? A: I’m living The Life, Miss. Living The Life. –​CSC prisoner As well as segregation units, prisoners can be housed in small units, or Close Supervision Centres (CSCs), aimed at a small group of prisoners deemed to be the most “dangerous” or “chronically disruptive” in the prison system. The CSC system was set up in 1998 to replace earlier strategies for managing these individuals in the prison system.21 The CSC system has a total capacity of fifty-​ four cells, arranged in five different high security prisons across the country.22 Interestingly, in contrast to the American system, the number of prisoners classified as requiring the most secure conditions in the prison system has remained fairly stable over the years, despite a substantial increase in the prison population during these years. The design of each unit differs, ranging from modern designs with glass panels and natural light to one unit that was originally designed as a bunker to withstand a powerful bomb blast. The CSC units are designed as a progressive system, with each unit offering a different regime. All prisoners who are selected for the CSC system start off at Woodhill A wing—​an assessment unit—​and work their way up the system to either a less restrictive or a more restrictive unit. When our study for Deep Custody was conducted, prisoners in the A wing were offered no activities and had little interaction with other prisoners (except for some limited joint exercise). Of the other CSC units, Woodhill B wing was a mixed unit, with some long-​ term residents who were not receiving programs and others who, at the time of our study, were awaiting moves to other units. Manchester prison had the smallest of the units, with a specialized function to provide one-​to-​one work. It had the fewest residents (four at the time of the visit) and there was very limited interaction between them. The CSC unit at Full Sutton served as a progressive unit, in that the residents were there to participate in programs designed to enable them to progress. It, too, had a small population—​five at the time of our study, with one person having recently progressed out of the CSC system.

21 See Emma Clare and Keith Bottomley et al., Evaluation of Close Supervision Centres (Home Office Research Study, 2001), 219. 22 As well as these units, there are twelve “designated cells” in regular segregation units in high security prisons, where prisoners identified as suitable for the CSC system can be housed until they are assessed for placement in a CSC unit. This was supposed to be temporary placement though we found that this wasn’t always the case.

68  Solitary Confinement across Borders The residents there were out of their cells for longer, had facilities including a garden and cooking areas, and they were able to associate with each other during designated times. The Whitemoor CSC unit was also progressive, in that the seven residents were encouraged to associate and work. The free association was a key attribute of this unit, as it enabled residents to develop social interaction, providing a more accurate means of assessing readiness for a return to normal location. Wakefield CSC was the most restrictive, with little prisoner association, but some association with staff. That unit was designed for very long-​term housing. The ultimate stated aim of CSC placement is to return the prisoner to a normal location. To quote the CSC Referral Manual: The overall aim of the CSC system is to remove the most significantly disruptive, challenging, and dangerous prisoners from ordinary location, and manage them within small and highly supervised units; to enable an assessment of individual risks to be carried out, followed by individual and/​or group work to try to reduce the risk of harm to others, thus enabling a return to normal or a more appropriate location as risk reduces.

The purported way of achieving this is through a combination of closely directed activities and ongoing risk assessments, and substantial input from a group of psychologists and other mental health professionals who work alongside operational mangers in running the CSC system. As noted above, we observed that prisoners were able, and indeed in some units encouraged, to associate with each other during exercise periods, and some also participated in group activities. At the same time, however, these prisoners were assumed to be very high risk and hence subjected to higher unlock levels (the number of officers present when the prisoner leaves his or her cell), the application of restraints, and other such measures. Risk assessments of CSC prisoners were dynamic and ongoing, with each individual discussed during regular weekly Dynamic Risk Assessment Meetings (DRAM) which were attended by a multidisciplinary team that could include senior custodial staff, psychology, probation, mental health in-​reach, a cognitive therapist, a forensic psychologist, and unit officers. This helped to ensure that all staff members were very familiar with all the prisoners in the unit, and issues could be identified and addressed early on. It also ensured that psychology and operational staff work side by side. The Deep Custody study noted that value of this multidisciplinary work, and the overall stable and relatively small size of the CSC system. One must be careful about painting too rosy a picture, however. CSCs are not without their problems and critics. They had a rocky start of distant and adversarial relationships in the units and impoverished regimes. In its early years of operation the CSC was also criticized for excessive use of force, and for focusing

Sharon Shalev  69 too much on containment and control.23 The Prison Inspectorate noted in its 1999 thematic report that if prisoners are locked up in their cell all day long, there are few avenues for them to demonstrate a change in behavior and reduction of risk—​the key aim of the system. A 2006 thematic review of the CSC, titled “Extreme Custody,” noted that the system evolved in a “positive direction” but regimes were still limited and physical conditions needed to be improved too.24 Ten years later a follow-​up report made similar observations, noting that “We were most concerned about progression and reintegration, which was critical to ensuring the system was not used just as a long-​term containment option for very problematic and dangerous men.”25 Moving forward, it was clear that the CSC had made positive progress, but it was also clear that further improvement is still required. HM Prison Inspectorate’s latest (2018) report states that “we remain concerned about the treatment and conditions of men held in designated cells who generally experience impoverished segregation-​like regimes, limited care planning and lack of progression opportunities often for months, and in a few cases, years.”26 We made similar observations in the Deep Custody study. The duration of CSC stays was much too long, with a number of men held in the system since its inception. This situation has slightly improved since the publication of our report with more people being moved on, but the overall population remains fairly stable with new people taking up their cells. To illustrate, the breakdown of CSC residents in mid 2017 appears in the following table:27 Length of time in the CSC

Number of people

Less than 6 months Between 6 and 12 months Between 1 and 2 years Between 2 and 5 years Between 5 and 10 years More than 10 years

3 1 11 17 10 4

23 For background on the evolution of the CSC system see Her Majesty’s Chief Inspector of Prisons reports of 2000, 2006, and 2015 and: Alison Liebling, “High Security Prisons in England and Wales: Principles and Practice,” in Handbook on Prisons, eds. Yvonne Jewkes, Jamie Bennett and Ben Crewe (2nd ed., Abbingdon: Routledge, 2016), 477–​96. 24 Her Majesty’s Chief Inspector of Prisons, Extreme Custody:  A Thematic Inspection of Close Supervision Centres and High Security Segregation (London, 2006). 25 Her Majesty’s Chief Inspector of Prisons, A Follow-​Up Inspection of Close Supervision Centres (London, 2015), 6. 26 Her Majesty’s Chief Inspector of Prisons, Report on an Announced Thematic Follow-​ Up Inspection of the Close Supervision Centre System, December 4–​8, 2017 (London, 2018), 5. 27 The data in this table is taken from Richard Vince, “Segregation: Cceating a New Norm,” Prison Service Journal, no. 236 (March 2018): 17–​26.

70  Solitary Confinement across Borders Despite these long stays the CSC system overall has evolved into a much more sophisticated system which recognizes that the key way to achieve its ultimate aim of returning the individual to the mainstream prison population is through engagement between prisoners and staff and a regime intended to facilitate personal change and reintegration. Key to the running of the units is a positive culture and good relationship between prisoners and prison staff. One cannot overemphasize the importance of relationships. As a Home Office Committee noted more than thirty years ago, everything flows from getting this relationship right: At the end of the day, nothing else that we can say will be as important as the general proposition that relations between staff and prisoners are at the heart of the whole prison system and that control and security flow from getting that relationship right.28

Human contact and interpersonal relationships are also important factors in mitigating the adverse effects of solitary confinement, and a key strength of many of the segregation units and CSCs visited for Deep Custody were the relationships between prisoners and staff. A key finding from our interviews with sixty-​seven prisoners in fourteen segregation units and four CSCs in England and Wales was how positive segregated prisoners were about staff. A majority perceived officers as supportive, while 89% said that there were some officers with whom they got on well. One prisoner said: Mr. X is funny. We have a laugh. He’s fair. If he says he’ll do something, he’ll do it. He’s a straight talker . . . He talks to me, he’s helped me a lot.

In our interviews with managers and staff we found in general a strong emphasis on interpersonal communication, getting to know prisoners and being fair and nonjudgmental. Asked what were the key skills needed for the job, one officer said: Being able to talk to them, to be firm, especially if they are hard to manage. You have to be calm, you need to be able to de-​escalate the situation, so be able to talk to people. You have to be more tolerant, not be excitable, a sense of humour.29

A good relationship between staff and prisoners was seen as crucial to the success of the CSC system. A CSC manager said: 28 Home Office, Managing the Long-​Term Prison System (the report of the Control Review Committee), Cmd. 3175 (London: HMSO, 1984), para. 16. 29 Shalev and Edgar, Deep Custody, 74.

Sharon Shalev  71 That’s what the CSC system is about. We will manage the risk until we get to a position where we can safely manage him with others. It’s all down to having a rapport with prisoners. If someone knows you and has some insight into your personality, he’s less likely to assault you.

And as this CSC manager noted, good staff-​prisoner relationships do not only serve the purposes of reducing risk to enable prisoners to progress back to a normal location, but they also have a more immediate purpose: to ensure staff and prisoner safety. The recent Prison Inspectorate report noted similarly that staff-​prisoner relationships remained a key strength and that “given the severity of CSC custody, we were impressed by staff ’s focus on giving men hope, working with them as individuals and their determination to help men who were unamenable to interventions.”30

CSC vs. supermax It is instructive to briefly compare the CSC model to the US supermax model, which is closest to it in terms of its official role and the prisoners it was set up to manage. Firstly, it is clear that the total capacity of the CSC estate of fifty-​four cells is dwarfed by the tens of thousands of long-​term segregation cells in the United States. The relatively good relationships in both segregation units and CSCs in England and Wales, and the apparent lack of animosity and “us”-​and-​“them” attitudes, which were so prevalent in the early supermaxes I visited, is also striking. That attitude was summed up by one senior supermax officer whom we interviewed: Do we have an obligation to take care of them? Yes. But do I have an obligation to provide him touching, feeling, contact with another human being? I would say no. He has earned his way to this unit and he’s earned just the opposite. He’s earned the need for me to keep him apart from other people.31

Logically the quality of staff-​prisoner relationships in long-​term segregation settings will in part reflect the stated purpose of the units. The CSC system, as previously noted, specifically seeks to return the prisoners to the general prison population. CSC prisoners, especially those in the more advanced units, are able—​indeed, encouraged—​to participate in programs outside their cell, and to associate with each other. Prison staff need to engage with prisoners to help 30 Her Majesty’s Chief Inspector of Prisons., Report on an announced thematic follow-​up inspection of the Close Supervision Centre System, (December 4–​8, 2017.). Her Majesty’s Chief Inspector of Prisons: London, 2018 at p.6. 31 Shalev, Supermax, 142.

72  Solitary Confinement across Borders facilitate their reintegration. No such imperative exists in a supermax prison intended simply to contain and warehouse indefinitely individuals labeled as dangerous. As one supermax officer said: Your main concern is control. You want to make sure that the inmates don’t have the opportunity to attack each other, you limit their opportunities to assault staff and because it is a [supermax] unit, you’re not concerned with providing programming.32

The individuals who needed to be controlled in this manner, as a senior official in a supermax prison with a capacity of more than 1,000 cells put it, had “personal intent to disobey or to not follow directions”: . . . so the type of inmate that is housed at this facility is those that cannot be controlled or do not want to be controlled in the other type of facility and pretty much they’re predators that are housed at this Facility.33

Not only are relationships not part of the operation of Supermax prisons—​ they are directly and very specifically frowned upon. This creates what Craig Haney terms an “ecology of cruelty” where: [a]‌t almost every turn, guards are implicitly encouraged to respond and react to prisoners in essentially negative ways—​through punishment, opposition, force, and repression. . . . When punishment and repression continue—​largely because of the absence of any available and sanctioned alternative approaches—​ they become functionally autonomous and often disproportionate in nature.34

It is hard to imagine how a positive relationship can develop when one person views the other as a “predator” requiring isolation and control. But if, as Richard Vince, the man in charge of the long-​term secure estate in England and Wales, including the CSCs, has suggested, the focus is on the individual’s ability to change, a different culture is created: [F]‌ocussing on circumstances, conditions and opportunities for people to change rather than simply managing their presentation can change the way we think about how we use segregation.35 32 Id., 48. 33 Id., 66. 34 Craig Haney, “A Culture of Harm:  Taming the Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behavior 35 (2008): 958. 35 Richard Vince, “Segregation: Creating a New Norm,” Prison Service Journal, no. 236 (March 2018): 17–​26.

Sharon Shalev  73 The emphasis on creating a rehabilitative culture in the CSC system that focuses on the needs of the individual to reduce long-​term segregation is demonstrated for example by the introduction of the HOPE(S) model (the “H” stands for “harness the system and engage the person”) which was developed and successfully piloted at a secure psychiatric hospital, Ashworth, and adapted for use at the High Secure prison estate and CSCs;36 the roll-​out of trauma-​informed training for staff so they can better understand and respond to the trauma that many prisoners in the CSC and elsewhere in the prison system carry with them;37 and, all CSC units working towards “enabling environments” status with the Royal College of Psychiatrists.38 What really makes the difference to staff-​prisoner relationships, is the culture, the ethos and how dry official narratives of intended purpose are given life by leaders in prison systems and promoted and supported as the life blood of daily practice within segregation units.

Conclusions Solitary confinement has played some role in prison systems internationally for the best part of two centuries. For many decades it has been seen in some prison systems as a key and necessary tool for managing those individuals labeled as dangerous or chronically disruptive. Looking at international practices suggests that rather than simply isolating people labeled as “difficult” or “challenging,” prison systems should seek to foster relationships and invest in program provisions. The more “challenging” the individual, the more investment they require—​not in keeping them apart, but in bringing them in. Clearly those with responsibility for long-​term segregation in prison systems in different jurisdictions will be subject to political pressures and will have more or less scope to effect change, but we must encourage and support more prison leaders to think big and think differently—​to, as my report on seclusion and restraint in New Zealand was titled, “think outside the box.” And in this respect these are interesting times in England and Wales. To quote Richard Vince again: Given the operational realities and the international research into the effects and outcomes of long-​ term segregation we must question whether how 36 Jennifer Kilcoyne and Danny Angus, The HOPE(S) Clinical Model to Reduce Long-​Term Segregation (Liverpool: Mersey Care NHS Foundation Trust, 2015). 37 Stephanie Covington, Becoming Trauma Informed:  Toolkit for Criminal Justice Professionals (London: One Small Thing, 2015). 38 For background see Royal College of Psychiatrists, Enabling Environment Standards (London, 2015), https://​www.rcpsych.ac.uk/​docs/​default-​source/​improving-​care/​ccqi/​quality-​networks/​enabling-​ environments-​ee/​ee-​standards-​document-​2015.pdf?sfvrsn=abdcca36_​2.

74  Solitary Confinement across Borders segregation is used is consistent with a reforming organisation placing safety and rehabilitation at its centre? Indeed, is it an acceptable level of humanity in a modern society? Is the current use of segregation actually an outmoded concept, something that we will look back on in years to come and regard as archaic in the same way that we now view the practice of placing suicidal men in “strip cells”?39

Questioning whether long-​term segregation has a future is clearly far from getting rid of it, but a willingness to think big over the long term accompanied by significant steps to change the culture now is a powerful combination. It should fundamentally affect the daily and future lives of prisoners held in long-​term segregation and perhaps one day make this deeply undesirable and destructive prison practice a thing of the past. Important voices for change are not, of course, unique to England and Wales. There is now a small, but growing, vocal group of prison leaders in the United States calling for a complete reform of solitary confinement practices. Where reforms have already been introduced, outcomes are promising. For example, Rick Raemisch, former executive director of the Colorado Department of Corrections and a leading reformer explains how: [a]‌s a result of our reforms, inmate-​on-​inmate assaults have not gone up nor have they decreased. However, inmate-​on-​staff assaults are the lowest they’ve been since 2006. Self-​harm is down, and for the most part those released from solitary are not returning. We have three Residential Treatment Programs that house offenders with mental health needs. . . . We believe these reforms have led to safer institutions, and in the long run, since 97 percent of our inmates return to the community, they have also led to safer communities. Overuse of solitary confinement in the United States for over a hundred years has not worked. It is time to change.40

If we are to see a meaningful change in the use of solitary confinement worldwide we need to see similar leadership for change across jurisdictions. We need to encourage a recognition that not only does isolation not make prisons, or the public, safer, but also that solitary confinement does not befit advanced, civilized societies, and is not an acceptable way of treating another human being.

39 Prison Service Journal (March 2018). 40 Rick Raemisch, “Opening The Steel Door: Solitary Confinement Reform,” guest blog for ACSLAW, 2015, https://​www.acslaw.org/​acsblog/​opening-​the-​steel-​door-​solitary-​confinement-​reform.

Sharon Shalev  75

Bibliography Association of State Correctional Administrators (ASCA) and the Arthur Liman Public Interest Program. Aiming to Reduce Time-​In-​Cell. New Haven, Connecticut: Yale Law School, 2016. Clare, Emma, and Keith Bottomley et  al. Evaluation of Close Supervision Centres. London: Home Office Research Study, 2001. Covington, Stephanie. Becoming Trauma Informed:  Toolkit for Criminal Justice Professionals. London: One Small Thing, 2015. Haney, Craig. “A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons.” Criminal Justice and Behavior 35 (2008): 956–​84. Haney, Craig. “Restricting the Use of Solitary Confinement.” Annual Review of Criminology 1 (2018): 285–​310. Her Majesty’s Chief Inspector of Prisons. A Follow-​Up Inspection of Close Supervision Centres. London: Her Majesty’s Chief Inspector of Prisons, 2015. Her Majesty’s Chief Inspector of Prisons. Extreme Custody:  A Thematic Inspection of Close Supervision Centres and High Security Segregation. (London: Her Majesty’s Chief Inspector of Prisons, 2006. Her Majesty’s Chief Inspector of Prisons. Inspection of the Close Supervision Centres, August-​September 1999. London: Her Majesty’s Chief Inspector of Prisons, 2000. Her Majesty’s Chief Inspector of Prisons. Report on an announced Thematic Follow-​Up Inspection of the Close Supervision Centre System, December 4–​8, 2017. London: Her Majesty’s Chief Inspector of Prisons, 2018. Home Office, Control Review Committee. Managing the Long-​Term Prison System. Cmd. 3175. London: Her Majesty’s Stationery Office 1984. “Istanbul Statement on the Use and Effects of Solitary Confinement.” Adopted at the International Psychological Trauma Symposium. Istanbul, December 2007. http://​ www.solitaryconfinement.org/​Istanbul. Kilcoyne, Jennifer, and Danny Angus. The HOPE(S) Clinical Model to Reduce Long-​Term Segregation. Liverpool: Mersey Care NHS Foundation Trust, 2015. Liebling, Alison. “High Security Prisons in England and Wales: Principles and Practice.” In Handbook on Prisons. 2nd ed., edited by Yvonne Jewkes, Jamie Bennett, and Ben Crewe, 477–​96. Abbingdon: Routledge, 2016. Judge Peter Boshier A Question of Restraint:  Care and Management for Prisoners Considered to be at risk of Suicide and Self-​Harm: observations and findings from OPCAT inspectors. Wellington: Office of the Ombudsman, 2017. New Zealand Department of Corrections. Change Lives Shape Futures: Investing in Better Mental Health for Offenders. Wellington: Department of Corrections 2016. New Zealand Department of Corrections. “We don’t use solitary confinement—​but sometimes we have to restrict prisoners’ contact to keep everyone safe. We call this segregation.” Twitter, October 30, 2017. https://​twitter.com/​CorrectionsNZ/​status/​ 925579921677737984. New Zealand Herald “Corrections to remove and ban ‘tie-​down’ restraints in NZ prisons” 11 April 2019 https://​www.nzherald.co.nz/​nz/​news/​article.cfm?c_​id=1&objectid=12221419 Raemisch, Rick. “Opening the Steel Door:  Solitary Confinement Reform.” ACSLAW Expert Forum (guest blog). American Constitutional Society, 2015. . https://​www. acslaw.org/​expertforum/​opening-​the-​steel-​door-​solitary-​confinement-​reform/​.

76  Solitary Confinement across Borders Royal College of Psychiatrists. Enabling Environment Standards. Royal College of Psychiatrists Centre for Quality Improvements, London: 2015, https://​www.rcpsych. ac.uk/​ d ocs/​ d efault-​ s ource/​ i mproving-​ c are/​ c cqi/ ​ q uality- ​ n etworks/ ​ e nabling-​ environments-​ee/​ee-​standards-​document-​2015.pdf?sfvrsn=abdcca36_​2. Shalev, Sharon. “Solitary Confinement as a Prison Health Issue.” In World Health Organisation (WHO) Guide to Prisons and Health, edited by S. Enggist, L. Moller, G. Galea, and C. Udesen, 27–​35. Copenhagen: World Health Organization, 2014. Shalev, Sharon. Supermax: Controlling Risk Through Solitary Confinement. Cullompton: Willan Publishing, 2009. Shalev, Sharon. Thinking Outside the Box?: A Review of Seclusion and Restraint Practices in New Zealand. Auckland: New Zealand Human Rights Commission, 2017. Shalev, Sharon, and Kimmett Edgar. Deep Custody:  Segregation Units and Close Supervision Centres in England and Wales. London: Prison Reform Trust, 2016. Smith, Peter Scharff. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” Crime and Justice 34, no. 1 (2006): 444–​528. Sykes, G. The Society of Captives:  A Study of a Maximum Security Prison. Princeton, NJ: Princeton University Press, 1958. UN Special Rapporteur on Torture. Interim Report to the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. UN DOC A/​66/​268. Geneva: United Nations, 2011. United Nations. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Resolution adopted by the General Assembly on December 17, 2015, UN DOC A/​RES/​70/​175. Geneva: United Nations. Vince, Richard. “Segregation:  Creating a New Norm.” Prison Service Journal, no. 236 (March 2018): 17–​26. Walmsley, Roy. “World Prison Brief Online.” 2018. http://​www.prisonstudies.org/​ world-​prison-​brief-​data.

5

The Rise of Supermax Imprisonment in the United States Keramet Reiter*

In 1986, the Security Management Unit (SMU) opened in Florence, Arizona. It was a new kind of prison designed for long-​term, total isolation, for prisoners whom prison officials said simply could not get by in the general prison population: gang members, the extremely violent, some death row prisoners. The 424 modular, poured-​concrete cells of the SMU had no windows, only fluorescent lights that remained on twenty-​four hours a day, every day.1 A cement ledge for a bed and a steel toilet-​sink combination passed as furniture. Prisoners were only allowed out of their cells for, at most, an hour or two a day in an exercise yard hardly bigger than their 8x10-​foot cells, with time for a shower, if they were lucky. There was no place for any congregate activity. Officers in central control booths looked out over multiple pods of cells at once, and could open the mechanized cell doors, one at a time, with the press of a button. The facilities essentially eliminated the need for human contact. The architects, who had worked with prison officials to design this feat of modern technology, touted their streamlined, efficient innovation as: “the kind of facility that could almost be patented.”2 And prison officials all over the country took notice. California became one of the first states to copy Arizona’s model. Only California prison officials built a bigger and “better” facility, with 1,056 beds designed for long-​term and total isolation.3 The Pelican Bay State Prison Security Housing Unit (SHU) opened in 1989. Located in rural California, on the state’s northernmost border with Oregon, it would become the archetypal supermax. * Associate Professor, Department of Criminology, Law & Society, and School of Law, University of California, Irvine. This chapter is based on Keramet Reiter’s book 23/​7: Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement (New Haven, CT: Yale University Press, 2016). An earlier version of this chapter previously appeared in Prison Legal News in November 2016 and is reprinted here with permission of that publication. 1 Mona Lynch, Sunbelt Justice: Arizona and the Transformation of American Punishment (Stanford, CA: Stanford University Press, 2010). 2 Justice architect (Arizona). Telephone interview with the author, February 10, 2011. Notes on file with the author. 3 Keramet Reiter, 23/​7: Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement (New Haven, CT: Yale University Press, 2016), 102–​10. Keramet Reiter. The Rise of Supermax Imprisonment in the United States In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0005

78  The Rise of Supermax Imprisonment Over the next quarter of a century, supermaxes would captivate prison officials, horrify the public, terrorize prisoners, push the boundaries of constitutionally acceptable punishments, and plague northern California courts—​and eventually courts across the United States—​with a seemingly endless stream of prisoner complaints. My book, 23/​7: Pelican Bay Prison and the Rise of Long-​ Term Solitary Confinement, tells the history of the Pelican Bay SHU; this chapter provides an overview of that history, focusing in particular on (1) how and why the first supermaxes were built in Arizona and California; and (2)  the legitimizing role that litigation has played in the history of the institutions.

The origins of the supermax When Arizona and California built those first supermaxes in the 1980s, the United States, and especially states like Arizona and California, were all in the middle of massive prison-​building projects. Arizona’s prison population increased from 2,000 prisoners in the 1970s to 39,000 prisoners in the 2000s, and California’s skyrocketed from 20,000 prisoners in the 1970s to 160,000 prisoners in the 2000s. Across the United States, prison populations quintupled in these years.4 One way to understand supermaxes is in this context of mass incarceration: As states were building more prisons to house their burgeoning prison populations, they built more isolation (or solitary confinement) units, too. As California’s 1980s prison finance director (officially the Warden of New Prison Design and Activation) explained in an interview, prison officials estimated that they needed about 2% of all prison beds in the state to be designated as isolation beds, for the trouble-​making prisoners. Prison officials hoped that, with the right number of isolation beds, general population prisoners would be safer and their lives less disrupted by troublemakers.5 Using this 2% formula and applying the concentration-​of-​troublemakers theory of prison planning, California prison officials calculated that, as the state built dozens of new prisons, at least one dedicated, thousand-​bed isolation unit would be required. But supermaxes were more than a logical addition to an expanding prison system. First, rates of long-​term solitary confinement use in supermaxes actually expanded faster, even, than rates of incarceration across the United States.

4 Mona Lynch, “Punishment, Purpose and Place:  A Case Study of Arizona’s Prison Siting Decisions,” Studies in Law, Politics & Society 50 (2009):  109–​37; Keramet Reiter, “Parole, Snitch, or Die:  California’s Supermax Prisons and Prisoners, 1987–​2007,” Punishment and Society 14, no.  5 (December 2012):  530–​63; Franklin Zimring, “The Scale of Imprisonment in the United States: Twentieth-​Century Patterns and Twenty-​First Century Prospects,” Journal of Criminal Law and Criminology 100, no. 3 (2010): 1225–​46. 5 Reiter, 23/​7, 104.

Keramet Reiter  79 In many states, rates of prisoner isolation quickly expanded from two percent of state systems to five percent, and, in some cases, up to ten percent or more.6 In fact, the Vera Institute of Justice noted that between 1995 and 2000, the rate of solitary confinement use across the United States increased far faster than the rate of incarceration:  a forty percent growth rate in solitary confinement populations versus a twenty-​eight percent growth rate in prison populations.7 By 2015, in one of the first systematic attempts to track solitary confinement use across the United States, the Bureau of Justice Statistics (BJS) reported that one in five state prisoners had spent time in “restrictive housing” in the last year.8 The report was one of the first to operationalize the term “restrictive housing” to describe the range of isolation practices in use across disparate US jurisdictions including: local-​level, pre-​trial jails; state-​level prisons; and national-​level federal facilities. The 2015 BJS report defined restrictive housing as involving “limited interaction with other inmates, limited programming opportunities, and reduced privileges,” for the various purposes of protecting, disciplining, and controlling dangerous or disruptive prisoners.9 As the sheer variety of terms in this paragraph—​from isolation to solitary confinement to restrictive housing to supermax—​suggest, the definition of solitary confinement has been contested across punitive jurisdictions and within the academic literature, and this contestation has made both tracing and quantifying the practice difficult. I  have defined solitary confinement elsewhere as “the intersection of two of the most restrictive conditions of incarceration—​reducing prisoners’ freedom of movement by maximizing ‘time in cell’ and constraining human contact (both physical and social) so severely as not to be ‘meaningful.’ ”10 Supermaxes, in turn, are institutions designed for the sole purpose of solitary confinement, for extended periods of time in excess of a few weeks. Second, supermaxes were more than just an extension and expansion of existing segregation policies. They were newly harsh:  an architectural innovation, designed to concentrate “the worst of the worst” in semi-​permanent, if 6 Association of State Correctional Administrators and the Arthur Liman Public Interest Program, Yale Law School Time-​In-​Cell: The ASCA-​Liman 2014 National Survey of Administrative Segregation in Prison (August 2014): Chart 1, p.16. 7 John J. Gibbons and Nicholas J. Katzenbach, “Confronting Confinement:  A Report on the Commission on Safety and Abuse in America’s Prisons.” New  York, NY:  Vera Institute of Justice (2006): 52–​53. 8 A. J. Beck, “Use of Restrictive Housing in U.S. Prisons and Jails, 2011–​12.” Washington, D.C.: Bureau of Justice Statistics, Government Printing Office 1, 2015. www.bjs.gov/​content/​pub/​ pdf/​urhuspj1112.pdf. 9 Id., 2. By contrast, Rule 44 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (ratified in May 2015), defines “solitary confinement” as “confinement of prisoners for 22 hours or more a day without meaningful human contact,” and “prolonged solitary confinement” as “solitary confinement for a time period in excess of 15 consecutive days.” 10 Ashley T. Rubin and Keramet Reiter, “Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement,” Law & Social Inquiry 43, no. 4 (2018): 1604-​32.

80  The Rise of Supermax Imprisonment not permanent, solitary confinement. In fact, given their harshness and their widespread use, supermaxes have often been understood as integral to tough-​ on-​crime political agendas.11 Over the past few decades, these agendas have included longer and harsher sentences—​mandatory minimums, three-​strikes-​ and-​you’re-​out-​laws, juvenile life without parole terms—​and policies that work to systematically exclude prisoners and former prisoners from social reintegration, like permanent sex offender registries, and prohibitions on access to welfare, public housing, and federal education loans for some categories of former prisoners.12 However, neither the context of mass incarceration nor the politics of tough-​ on-​crime agendas fully explains why and how supermaxes developed and spread across the United States over the past few decades. In fact, my research into the history of US supermaxes reveals that the earliest supermaxes, like Arizona’s SMU and California’s SHU, were not actually popular, public innovations touted by legislators and approved by voters. Unlike California’s prison-​building bonds, passed by a majority of state voters and approved by legislators in the 1980s, or the state’s Three Strikes Law, also passed by a majority of state voters and approved by legislators in 1994, California’s Pelican Bay SHU was never put to the test of a popular vote, either in the state legislature or at the state’s polls.13 Instead, motivated by the need to build prisons fast, as prison populations expanded, California legislators delegated authority over prison design to prison administrators, like wardens and other managers. Prison officials had so much control over prison design, in fact, that few public officials were even aware of the conditions inside the new Pelican Bay SHU when it opened in 1989. Legislators and public observers knew that Pelican Bay was a high-​security prison, but they knew little else about its novel, harsh design. The first news reports about the opening of the prison said little about conditions inside the facility. California prison litigators and judges, alike, remember being surprised when they first started to receive letters from Pelican Bay SHU prisoners describing the harsh conditions of confinement at the prison: lights that never turned off; a few hours a week in empty concrete exercise yards; no human

11 See, e.g., Daniel P. Mears, “Supermax Prisons: The Policy and the Evidence,” Criminology and Public Policy 12, no. 4 (2013): 681–​719. 12 For particularly thoughtful discussions of the ideas of penal populism and the kinds of tough-​on-​crime policies they inspired, see Vanessa Barker, The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders (New York: Oxford University Press, 2009); Naomi Murakawa, The First Civil Right: How Liberals Built Prison America (New York: Oxford University Press, 2014); Joshua Page, The Toughest Beat: Politics, Punishment, and the Prison Officers’ Union in California (New York: Oxford University Press, 2011). 13 On prison bonds, see Reiter, 23/​7, 92–​99. On Three Strikes, see Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (New York: Oxford University Press, 2001).

Keramet Reiter  81 contact, save the occasional beating.14 Thelton Henderson, a federal judge based in San Francisco, took notice in 1990, just a few months after the SHU opened its doors. Although Judge Henderson began investigating conditions at Pelican Bay in 1990, it would be years before any of the policies at the institution actually changed.15 In Arizona, with the SMU that served as the model for the Pelican Bay SHU, prison design was similarly removed from the popular voting, legislative, and even judicial oversight processes.16 In sum, supermaxes were an administrative innovation, designed and institutionalized by prison wardens and managers, rather than by tough-​on-​crime legislators. This analysis of who designed the first supermaxes begs a second question, though: Why did prison officials in Arizona and California design these newly harsh facilities? More specifically, why were California prison officials so enthralled with the Arizona SMU that they set out to build a bigger, better one in California? The answer, surprisingly, pre-​dates both the rise of mass incarceration and the tough-​on-​crime era of penal populism. Prison officials in states like California built supermaxes not just to concentrate the “worst of the worst” in one place, but to concentrate a specific subset of these worst of the worst: prisoners organizing for more and better civil rights. Supermaxes, in fact, institutionalized a common prison operational response to radical prison organizing, dating back to the 1970s:  long-​term lockdowns. Lockdowns started in prisons in California and New York following moments of violent unrest allegedly orchestrated by prisoner radicals. First, in August of 1971, guards shot George Jackson in the prison yard of California’s San Quentin State Prison, alleging that he had a gun and was trying to escape. Jackson bled to death on the San Quentin Prison yard that August day. And five other prisoners and guards were found stabbed to death, piled up inside the death row isolation cell from which Jackson had apparently escaped. Sunday August 21, 1971 was (and remains) the deadliest single day in California prison history.17 At the time, Jackson was widely known as the best-​selling author of Soledad Brother and as a vocal, if also radical, advocate for more racially just and humane treatment of both accused and convicted criminals.18 That was his public reputation, at least. Inside of prison, he was known as a security threat. As one prison official said: “We had this ‘revolution,’ and it manifested itself with a lot 14 Reiter, 23/​7, 122. 15 Id. 16 Lynch, Sunbelt Justice, 136–​37. 17 For an in-​depth narrative of the relevance of George Jackson, see Reiter, 23/​7,  34–​58. 18 For more on Jackson’s life and writings, see Dan Berger, Captive Nation: Black Prison Organizing in the Radical Civil Rights Era (Chapel Hill: University of North Carolina Press, 2014); Eric Cummins, The Rise and Fall of California’s Radical Prison Movement (Stanford, CA: Stanford University Press, 1994); Eric Mann, Comrade George: An Investigation into the Life, Political Thought, and Assassination of George Jackson (New York: Harper & Row, 1974).

82  The Rise of Supermax Imprisonment of rhetoric—​in colleges and jails . . . [But] in the prisons, it manifested in a lot of violence . . . . The Black Guerilla Family and the Black Panthers, they had a political side . . . but they were mostly gangs, mafia.”19 The August 1971 deaths at San Quentin precipitated a long-​term lockdown. Specifically, the six other prisoners charged with plotting with Jackson to escape (dubbed the “San Quentin Six”) were locked down, in deteriorating cellblocks on San Quentin’s death row. Some of these prisoners remained in solitary confinement for decades, even though their roles in the alleged escape attempt were either never established or were ambiguous. For instance, Hugo Pinell was locked down continuously from 1971 until 1989, when he was moved into the Pelican Bay SHU, the month it opened. In total, Pinell would spend more than forty years in solitary confinement.20 Two weeks after George Jackson’s death, prisoners at New  York’s Attica Correctional Facility took over the prison, protesting conditions of confinement there. Over four days, prisoners negotiated, peacefully, with prison officials for improvements in conditions. But when negotiations broke down, New  York State troopers stormed the prison, killing ten staff hostages and twenty-​nine prisoners. Many more prisoners were beaten up and held in isolation, initiating another period of long-​term lockdowns.21 This pattern of violent unrest was repeated across the United States. Infamously, in 1983, Tommy Silverstein murdered Officer Merle Clutts at the United States Penitentiary in Marion, Illinois. This initiated a long-​term lockdown that was eventually institutionalized in the form of the federal supermax in Florence, Colorado—​known simply as ADX—​which opened in 1995. Tommy Silverstein remained in total solitary confinement at ADX until his death in 2019.22 The chronology of lockdowns and supermax building is important: This was not a federal innovation, but a state innovation, initiated in Arizona and California, and then copied by dozens of other states and the federal government. The federal supermax at ADX was, in fact, modeled after the state facilities in Arizona (the SMU) and California (the SHU). One federal prison architect, for instance, recalled how federal prison officials visited the Pelican Bay SHU before designing ADX and decided to copy the cell doors from the California facility: “One of the things they [federal officials] were impressed with at Pelican Bay was the cuff pass or the food pass on the side of the door . . . . And they incorporated that.”23 Over the course of the 1990s, prison officials continued to share 19 Carl Larson (Warden of New Prison Design and Activation). Interview with the author, Sacramento, CA. February 23, 2010. Notes on file with author. Also see Reiter, 23/​7, 40. 20 See Reiter, 23/​7,  34–​58. 21 For a thorough review of the events at Attica in 1971 and the aftermath, see Heather Ann Thompson, Blood in the Water:  The Attica Prison Uprising of 1971 and Its Legacy (New York: Pantheon, 2016). 22 Reiter, 23/​7, 57. 23 Justice architect (federal). Telephone interview with the author, June 22, 2010. Notes on file with the author.

Keramet Reiter  83 design ideas, looking especially to the prototypical supermaxes in Arizona and California. By the late 1990s, nearly every state had its own supermax.24

The legal legitimizing of the supermax The birth of the supermax in Arizona and California inspired numerous legal challenges to both the harsh conditions of confinement in the facilities and to the often-​arbitrary procedures underlying prison officials’ decisions to place prisoners in isolation. The first major class action case to assess the constitutionality of supermax confinement was litigated in California, led by prisoners in the Pelican Bay SHU and lawyers at the Prison Law Office. The case was Madrid v. Gomez. It began in 1990 when Judge Thelton Henderson, already renowned then for a wide range of civil rights affirming decisions, including a number of cases in which he upheld the rights of criminal defendants and prisoners, started receiving letters from prisoners complaining about the conditions at the Pelican Bay Security Housing Unit. Judge Henderson was so shocked by the number of letters, and the harsh conditions they described, that he “invited” the warden of Pelican Bay to a meeting in San Francisco to discuss what was going on up at Pelican Bay.25 Within a year, Judge Henderson had certified a class of all the prisoners at Pelican Bay, appointed counsel from the Prison Law Office (a nonprofit) and Wilson Sonsini Goodrich & Rosati (a local corporate law firm), and even visited the prison himself. In 1993, Judge Henderson presided over a three-​month trial interrogating conditions and uncovering abuse after abuse that had taken place at Pelican Bay, from prisoners being shot inside housing units, to months-​long delays in medical care, to psychotic prisoners being housed outside and naked in cages. Guards bathed one prisoner, who had a documented mental health problem and had smeared himself in his own feces, in scalding water, holding him down until his skin peeled off.26 The gruesome stories of abuse were more like something out of a myth about a medieval torture chamber than something out of an actual Sixty Minutes episode (that aired on the eve of the Madrid trial) about a modern state-​of-​the-​art prison. But these gruesome stories of abuse overshadowed the more fundamental challenge at the heart of the Madrid case—​to the very practice of indefinite solitary confinement. In the end, Judge Henderson held that placing seriously mentally 24 Chase Riveland, “Supermax Prisons: Overview and General Considerations,” US Department of Justice, National Institute of Corrections (Washington, DC: Government Printing Office, 1999), www.nicic.org/​pubs/​1999/​014937.pdf. 25 For a history of the Madrid case and Henderson’s role in it, see Reiter, 23/​7, 121–​44. 26 For more about this prisoner, Vaugh Dortch, see Reiter, 23/​7, 21–​22, 131–​32.

84  The Rise of Supermax Imprisonment ill prisoners in the SHU at Pelican Bay violated Eighth Amendment prohibitions against cruel and unusual punishment, and he ordered many reforms to the way guards and staff treated prisoners, including better training for staff and more health care for prisoners.27 After Judge Henderson’s decision in Madrid in 1995, another federal judge in California ordered sweeping reforms to the provision of mental health care throughout the state.28 Eventually, Prison Law Office lawyers also challenged the provision of all health care throughout the state; the case ultimately led to a Supreme Court decision upholding orders to drastically reduce the overcrowded prison population in California.29 As Jonathan Simon has argued, these cases put “mass incarceration on trial.”30 Following Judge Henderson’s decision in Madrid, many other prisoners across the United States challenged aspects of both the conditions in supermaxes and the procedures governing assignment to supermaxes. As of 2015, Madrid had been cited in close to 300 cases across the United States.31 Most courts followed the precedent of Madrid and ordered the exclusion of mentally ill prisoners from long-​term isolation. In terms of its impact on mental and physical health care in prisons in California and across the United States, the Madrid case was a resounding success. In another sense, however, the case fundamentally failed to protect prisoners—​ especially those who entered the SHU without documented mental health problems—​from the tremendous harms of long-​term, often indefinite, solitary confinement. Judge Henderson never found that the conditions of isolation in the Pelican Bay SHU, or the months and years prisoners were spending in those conditions, violated the US Constitution. After Judge Henderson’s 1995 order in the Madrid case, lawyers from the Prison Law Office monitored conditions at Pelican Bay for the next fifteen years, reporting regularly to Judge Henderson. And things improved. Mentally ill prisoners were diverted to isolation units that at least had windows. Prisoners at Pelican Bay received better health care. There were no more reports of shootings, nudity in outdoor cages, or scalding baths. But for the prisoners left in the Pelican Bay SHU—​the ones with no pre-​existing mental health problems, the ones whom prison officials had assigned to the SHU indefinitely, because they had been labeled as dangerous gang leaders—​the years ticked on and on. In 2011, Judge Henderson found that Pelican Bay was finally in full compliance with his 1995 orders in Madrid, and he closed the case. 27 Madrid v. Gomez, Case No. 90-​3094, 899 F. Supp. 1146 (N.D. Cal. 1995). 28 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995). 29 Plata v. Brown, No. 09-​1233, 563 U.S. 493 (2011). 30 Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New York: New Press, 2014). 31 Reiter, 23/​7, 139.

Keramet Reiter  85 At that moment, there were more than 500 prisoners in the Pelican Bay SHU who had been in total isolation there for more than 10 years. And seventy-​eight prisoners had been in Pelican Bay more than twenty years, since the Madrid litigation had first begun.32 As others have documented throughout the collection in which this chapter appears, such conditions can have permanent mental, and even neurological, consequences for prisoners, and the United Nations (in the Mandela Rules and according to the Special Rapporteur on Torture) has argued that solitary confinement in excess of fifteen days should be banned, and that such practices can amount to cruel, inhuman, and degrading treatment, or even torture. The Madrid decision ultimately paved the way for other states to build supermaxes, and to leave prisoners languishing in these facilities for months, years, and now, decades. As Prison Legal News reported presciently in describing the 1995 decision in Madrid, prison officials essentially won the right to maintain prisoners in long-​term solitary confinement: “The court has given the green light for the proliferation of super-​max control units, even those as harsh as Pelican Bay, and politicians and prisoncrats throughout the country are already moving forward with efforts to do just that.”33 As long as supermaxes provide the minimum necessities of survival—​running water, a few hours a week outside with some access to natural light, a minimum daily dose of calories—​and avoid physically harming prisoners, they are unlikely to be declared unconstitutional. In 2005, the US Supreme Court—​in the only Supreme Court case to directly consider the constitutionality of supermaxes—​held that Ohio prisoners at least had a liberty interest in not being placed in the state’s supermax.34 If prisoners had a liberty interest in staying out of the supermax, then they were also constitutionally entitled to some minimal due process protections before being placed there, including notice about what justified the placement and some opportunity to respond to this notice. But no court has held that any length of time in solitary confinement, in a modern supermax, is per se unconstitutional. In recent years, however, some courts have assessed specific individual cases of extended confinement in isolation and found that certain periods of solitary confinement (e.g., thirty-​six years) for certain individuals (e.g., someone who has broken no prison rules over decades) might violate the Eighth Amendment prohibition against cruel and unusual punishment.35 32 Julie Small, “Under Scrutiny, Pelican Bay Prison Officials Say They Target Only Gang Leaders,” KPCC [Pasadena, CA], August 23, 2011, www.scpr.org/​news/​2011/​08/​23/​28382/​pelican-​bay-​ prison-​officials-​say-​they-​lock-​gang-​bo. Many of those prisoners started to feel as if they had nothing to lose. They would soon collaborate to lead the best-​organized protest of prison conditions since the Attica uprising forty years earlier. In part, few options were left to them. 33 “Pelican Bay Ruling Issued,” Prison Legal News, August 1995, 3. 34 Wilkinson v. Austin, 545 U.S. 209 (2005). 35 See, e.g., Johnson v. Wetzel, 209 F. Supp. 3d 766 (M.D. Pa. 2016).

86  The Rise of Supermax Imprisonment The ongoing resistance of US courts to any comprehensive finding that either the conditions or durations of solitary confinement in supermaxes and similar facilities are unconstitutional (i.e., violate the Eighth Amendment prohibition against cruel and unusual punishment) stems from two key phenomena. First, supermaxes like the Arizona SMU and the Pelican Bay SHU were designed to meet minimum constitutional standards for conditions of confinement. In the 1970s, courts condemned isolation facilities, like the places where George Jackson, the San Quentin Six, and the alleged Attica leaders were “locked down,” for being dark, dirty, overcrowded dungeons and “holes.” Modern supermaxes, by contrast, have plenty of light, however artificial (fluorescent lights often remain on twenty-​four hours per day), are hyper-​hygienic (with running water in all cells and poured concrete walls that can be hosed down easily), and prisoners are usually housed one to a cell. Because the institutions appear, at least superficially, to meet minimum constitutional standards set in the 1970s and 1980s, the less visible harms rendered by years in isolation are difficult to see, document, and litigate.36 Second, the deeply hidden nature of supermaxes has added to the difficulties that prospective litigators, in particular, have faced in identifying and documenting the constitutional harms inflicted by years and decades in solitary confinement. As described in the prior section, prison administrators designed supermaxes with little public, legislative, or judicial oversight. Prison administrators also have broad discretion in who gets labeled as dangerous, the worst of the worst, or a gang member, and placed in solitary confinement—​again, with little public, legislative, or judicial oversight, as codified in the Ohio supermax case, Wilkinson, previously referenced. This administrative discretion—​ and opacity—​ has reinforced the institutional resistance of supermaxes to litigation.

When prison is not enough In the end, the story of the supermax is the story of what happens when prison is not enough. Prison officials in the 1970s felt they needed more prison—​longer, harsher conditions of confinement—​in order to control activist prisoners. More broadly, voters and legislators supported more prisons in the form of longer 36 For an extended argument about the impact of 1970s litigation on the design of 1980s supermaxes, see Keramet Reiter, “The Most Restrictive Alternative: A Litigation History of Solitary Confinement in US Prisons, 1960–​2006,” Studies in Law, Politics, and Society 57 (2012): 71–​124. For an argument about the invisibility of the harms of the supermax, see Keramet Reiter, “The Pelican Bay Hunger Strike: Resistance within the Structural Constraints of a US Supermax Prison,” South Atlantic Quarterly 113, no. 3 (Summer 2014): 579–​611.

Keramet Reiter  87 sentences and more funding for building and running prisons. The story of the supermax forces us all to reconsider when and how prison reform might be possible. The abuses that have taken place deep inside the prisons within the prisons of supermaxes suggest that neither laws nor moral values have placed adequate limitations on punishment—​in terms of its scale, its duration, or its intensity.

Bibliography Association of State Correctional Administrators and the Arthur Liman Public Interest Program. “Time-​In-​Cell: The ASCA-​Liman 2014 National Survey of Administrative Segregation in Prison.” Yale Law School, August 2014. Barker, Vanessa. The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders. New York: Oxford University Press, 2009. Beck, A. J. “Use of Restrictive Housing in US Prisons and Jails, 2011–​12.” Washington, DC: Bureau of Justice Statistics, Government Printing Office, 2015. www.bjs.gov/​content/​pub/​pdf/​urhuspj1112.pdf. Berger, Dan. Captive Nation:  Black Prison Organizing in the Radical Civil Rights Era. Chapel Hill: University of North Carolina Press, 2014. Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995), later Coleman v. Schwarzenegger, then Coleman v.  Brown, Case No. Civ. S 90-​0520 LKKJFM, 2008 WL 8697735 (E.D. Cal.). Cummins, Eric. The Rise and Fall of California’s Radical Prison Movement. Stanford, CA: Stanford University Press, 1994. Gibbons, John J., and Nicholas J. Katzenbach. Confronting Confinement:  A Report on the Commission on Safety and Abuse in America’s Prisons. New York: Vera Institute of Justice, 2006. Lynch, Mona. “Punishment, Purpose and Place: A Case Study of Arizona’s Prison Siting Decisions.” Studies in Law, Politics & Society 50 (2009): 109–​37. Lynch, Mona. Sunbelt Justice: Arizona and the Transformation of American Punishment. Stanford, CA: Stanford University Press, 2010. Madrid v. Gomez, Case No. 90-​3094, 899 F. Supp. 1146 (N.D. Cal. 1995). Mann, Eric. Comrade George:  An Investigation into the Life, Political Thought, and Assassination of George Jackson. New York: Harper & Row, 1974. Mears, Daniel P. “Supermax Prisons: the Policy and the Evidence.” Criminology and Public Policy 12.4 (2013): 681–​719. Murakawa, Naomi. The First Civil Right: How Liberals Built Prison America. New York Oxford University Press, 2014. Page, Joshua. The Beat: Politics, Punishment, and the Prison Officers’ Union in California. New York: Oxford University Press, 2011. “Pelican Bay Ruling Issued.” Prison Legal News, August 1995. Plata v. Brown, No. 09-​1233, 563 U.S. 493 (2011). Reiter, Keramet. “Parole, Snitch, or Die:  California’s Supermax Prisons and Prisoners, 1987–​2007,” Punishment and Society 14, no. 5 (2012): 530–​63. Reiter, Keramet. “The Most Restrictive Alternative:  A Litigation History of Solitary Confinement in US Prisons, 1960–​2006.” Studies in Law, Politics, and Society 57 (2012): 71–​124.

88  The Rise of Supermax Imprisonment Reiter, Keramet. “The Pelican Bay Hunger Strike:  Resistance within the Structural Constraints of a U.S. Supermax Prison.” South Atlantic Quarterly 113, no. 3 (2014) 579–​611. Reiter, Keramet. 23/​7: Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement. New Haven, CT: Yale University Press, 2016. Riveland, Chase. “Supermax Prisons:  Overview and General Considerations.” U.S. Department of Justice, National Institute of Corrections. Washington, DC: Government Printing Office, 1999. Rubin, Ashley T., and Keramet Reiter. “Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement.” Law & Social Inquiry 16, no. 4 (2018): 1604-​32. Simon, Jonathan. Mass Incarceration on Trial:  A Remarkable Court Decision and the Future of Prisons in America. New York: New Press, 2014. Small, Julie. “Under Scrutiny, Pelican Bay Prison Officials Say They Target Only Gang Leaders.” KPCC [Pasadena, CA], August 23, 2011. www.scpr.org/​news/​2011/​08/​23/​ 28382/​pelican-​bay-​prison-​officials-​say-​they-​lock-​gang-​bo. Thompson, Heather Ann. Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy, New York: Pantheon, 2016. Wilkinson v. Austin, 545 U.S. 209 (2005). Zimring, Franklin “The Scale of Imprisonment in the United States:  Twentieth-​ Century Patterns and Twenty-​First Century Prospects.” Journal of Criminal Law and Criminology 100, no. 3 (2010): 1225–​46. Zimring, Franklin E., Gordon Hawkins, and Sam Kamin. Punishment and Democracy: Three Strikes and You’re Out in California. New York: Oxford University Press, 2001.

6

Not Isolating Isolation Judith Resnik*

Solitary confinement aims to isolate. Recent data on its use in prison systems across the country document that this practice has put tens of thousands of individuals in the United States in deep isolation for days, months, years, and decades. In this chapter, I explore the extraordinary and the ordinary of solitary confinement through a foray into the law, the facts, and the shifting attitudes toward its use. Solitary confinement is discretely troubling but reflective of the structure of U.S. prisons, which are organized to isolate people in a myriad of ways. Isolation by place comes through the siting of prisons in remote areas. Isolation by rule is predicated not only on holding individuals in what correctional officials now term “restrictive housing” but also through a host of other prison practices that cut off people from their families and communities. Over the course of the last seventy years, solitary confinement became a more widespread and accepted tool used by US prison officials to impose a veneer of control. Despite challenges to its constitutionality, judges licensed the practice—​ albeit with some caveats. More recently, actors across the political spectrum have repudiated the unbridled use of solitary. Understanding what propels the changing contours of the laws and the policies regulating solitary, as well as the difficulties of translating those rules into new practices, requires that isolation not be thought about in isolation.

* Arthur Liman Professor of Law, Yale Law School. All rights reserved. 2019. Thanks are due to the editors, Jules Lobel and Peter Scharff Smith, for convening the conference that generated this book and for all their work to ameliorate the suffering in prisons. I am grateful for the help of many current and former colleagues at Yale Law School’s Liman Center—​Anna VanCleave, Johanna Kalb, Hope Metcalf, Alexandra Harrington, Jamelia Morgan, Kristen Bell, and Sarah Baumgartel; of several current and former students, including Tor Tarantola, Greg Conyers, Catherine McCarthy, Kelsey Stimson, Jenny Tumas, and Annie Wang; to Bonnie Posick for careful editorial advice; and to Denny Curtis for helping me think through the shape of the arguments made here. This chapter is part of a larger project, supported by my Andrew Carnegie Fellowship, to research and write a book on the permissible and the impermissible in punishment. The research by the Arthur Liman Center for Public Interest Law and the Association of State Correctional Administrators was supported by the Vital Projects Fund and the Oscar Ruebhausen Fund. The views in this chapter are not to be attributed to the Vital Projects Fund, the Ruebhausen Fund, or Carnegie Foundation. Judith Resnik. Not Isolating Isolation In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0006

90  Not Isolating Isolation The expansion of isolation in the United States began in the 1970s, a time when prisoners were gaining a toehold of legal recognition as entitled to constitutional protections. Federal courts issued a series of important rulings to limit horrific conditions of confinement, to ensure a modicum of procedural protection when prisoners were losing credit for time served, to protect the religious freedoms of Muslim prisoners, and to require the provision of some health care. (In Texas, for example, only one physician had been available to respond to the medical needs of 17,000 prisoners.)1 But government officials used their fears of prisoners’ activism to impose hyper-​confinement on hundreds of individuals; targeted were many individuals of the Muslim faith who understood their struggle to be part of an international human rights movement.2 During the 1980s, as a “war on crime” and a “war on drugs” gained traction, prison populations rose, and worsening conditions increased violence.3 Corrections officials argued for isolated confinement of people whom they styled “the worst of the worst” and succeeded in getting funds to build “supermax” prisons to add capacity to the solitary cells within extant prisons. Contemporary efforts to unravel solitary are likewise embedded in social movements, as calls for criminal justice reform come from across the political spectrum. Critics seek to change arrest and prosecution practices, limit over-​ incarceration, and constrain post-​release punishments. Further, events not always linked to prison reform have raised the saliency of and revulsion at solitary confinement. In the wake of the 9/​11 terrorist attacks, the federal government detained hundreds of individuals at Guantánamo Bay. Their confinement brought attention to the degradation and torture imposed by solitary confinement to individuals who had not been accorded any judicial process. A transnational cri de couer protested their treatment. This chapter’s title thus serves as a reminder that solitary confinement is both startling in its deprivations and yet familiar in reflecting the practices of prisons. In US prisons today, prisoners in general population may be held in-​cell for most of the hours of every day, provided with few opportunities for social contact, and cut off from family visits for months or years. Thus, reform cannot hinge 1 See Gamble v. Estelle, 516 F.2d 937, 940–​41 n.1 (5th Cir. 1975), aff ’d in part sub nom Estelle v. Gamble, 429 U.S. 97 (1976). 2 One example was the solitary confinement by New York State of Martin Sostre, who succeeded in federal court in obtaining protection for his right to observe his religion. See Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971)  (en banc). The deployment of solitary in response to activism in California is chronicled in Keramet Reiter, 23/​7: Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement (New Haven, CT: Yale University Press, 2016). 3 See, e.g., Marie Gottschalk, Caught:  The Prison State and the Lockdown of American Politics (Princeton, NJ: Princeton University Press, 2016); Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016).

Judith Resnik  91 on looking for the “atypical” in prisons as distinguished from the “ordinary,” which are the terms used in the federal court opinions I analyze in this chapter. Rejecting solitary confinement as a permissible form of punishment demands consideration of how many facets of prison life that now seem to be typical and ordinary entailments of incarceration also impose harms that this social order should no longer tolerate.

From licensure to revulsion In 2005, the US Supreme Court decided Wilkinson v. Austin,4 a case brought by prisoners challenging Ohio’s supermax. The Court’s unanimous decision provided stark details of what that confinement entailed. Conditions there were more restrictive than any other form of incarceration in Ohio . . . . [A]‌lmost every aspect of an inmate’s life is controlled and monitored. Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times, though it is sometimes dimmed, and an inmate who attempts to shield the light to sleep is subject to further discipline. During the one hour per day that an inmate may leave his cell, access is limited to one of two indoor recreation cells. Incarceration  .  .  .  is synonymous with extreme isolation.  .  .  .  [The] cells have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates. All meals are taken alone . . . . It is fair to say [supermax] inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact.

Aside from the severity of the conditions, placement . . . is for an indefinite period of time, limited only by an inmate’s sentence. For an inmate serving a life sentence, there is no indication how long he may be incarcerated . . . once assigned there.5

One might think that such a description would be the basis for a ruling prohibiting subjecting individuals to social isolation, sensory deprivation, and indefinite observance.6 Indeed, more than a hundred years earlier, in 1890, the Supreme Court had objected to the solitary confinement of a person convicted of murder. As the Court explained, “after even a short confinement,” such detention

4 545 U.S. 209 (2005). 5 Wilkinson, 545 U.S. at 214–​15. 6 See generally Jules Lobel, “Prolonged Solitary Confinement and the Constitution,” University of Pennsylvania Journal of Constitutional Law 11 (2008): 115.

92  Not Isolating Isolation put a prisoner “into a semi-​fatuous condition,” making him unable to “recover sufficient mental activity to be of any subsequent service to the community.”7 Moreover, while the constitutionality of solitary confinement had not come directly to the Supreme Court in the century thereafter, the Court had, by the 1970s, recognized prisoners as rights-​holders entitled to judicial protection from certain conditions in prisons. And in one of the prisoners’ rights cases, the Court upheld an award of attorneys’ fees to be paid by Arkansas, which had put groups of prisoners “into windowless 8’x10’ cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell.”8 The practices in Arkansas were not then anomalous. In Mississippi in the 1970s, prisoners were “placed in the dark hole, naked, without any hygienic material, without any bedding, and often without adequate food.”9 Two decades later in California, another federal trial judge described that state’s confinement at Pelican Bay of 1,000 to 1,500 people in its “Secure Housing Unit” (SHU), where prisoners were kept “in windowless cells for 22 and 1/​2 hours each day” and “denied access to prison work programs and group exercise yards.”10 But neither the federal trial court in Mississippi in 1974 nor the federal trial court in California in 1995 imposed an outright ban on solitary confinement. Rather, while holding that Mississippi had violated the Eighth Amendment by sending “naked persons” for more than twenty four hours to solitary, the federal judge ordered that the state provide clothing, food, and clean surroundings.11 In California, the court ruled that extreme isolation did not violate the Eighth Amendment prohibition on cruel and unusual punishment except when used for “two categories of inmates: those who are already mentally ill and those who . . . are at an unreasonably high risk of suffering serious mental illness.”12 With this backdrop, the Ohio Wilkinson litigation offered the potential for a new approach. Building on a few prior decisions limiting the grounds for placement in solitary,13 the trial judge circumscribed prison officials’ authority to put individuals into solitary based on a generic fear or accusations of gang membership. Instead, prison officials could do so only if the charges involved repeated

7 In re Medley, 134 U.S. 160, 168 (1890). That case was cabined a year later when the Court made plain that the Eighth Amendment did not apply to the states. In the 1960s, that precept was reversed. See, e.g., Robinson v. California, 370 U.S. 660 (1962). 8 Hutto v. Finney, 437 U.S. 678, 682 (1978). 9 Gates v. Collier, 501 F.2d 1291, 1305 (5th Cir. 1974). 10 Madrid v. Gomez, 889 F. Supp. 1146, 1155 (N.D. Cal. 1995). 11 Gates v. Collier, 501 F.2d 1291, 1305 (5th Cir. 1974). 12 Madrid, 889 F. Supp. at 1267. 13 See, e.g., Hardwick v. Ault, 447 F. Supp. 116, 125 (M.D. Ga. 1978). The district court held that the offenses committed (including advocating “work stops”) were “not sufficiently serious to warrant several months of confinement in near-​solitary.”

Judith Resnik  93 rule violations, actual involvement in a gang, or drug possession at “a level that would subject an inmate to incarceration for at least a third degree felony.”14 Although the intermediate appellate court rejected those substantive constraints as beyond the remedial powers of the federal judiciary,15 it upheld the procedural constraints the trial court had imposed on the state. Before assigning a person to solitary, Ohio had to provide “a summary of the evidence to be presented”; a right to present evidence and witnesses; a record of the proceedings; an “independent review” by the warden; a detailed written “justification”; and another review by a panel that did not include any of the original decision-​makers.16 By the time Wilkinson was before the Supreme Court, the claims of violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment had been settled, and the focus was on the procedures for placing individuals in solitary17 rather than the constitutionality of the practice itself. Justice Anthony Kennedy’s decision for the unanimous Court simultaneously detailed solitary’s horrors and seemed to bolster its legitimacy by stressing the fearsomeness of incarcerated people and the fragility of prison security. The Court described Ohio’s supermax as “imperiled by the brutal reality of prison gangs,  .  .  .  [c]‌landestine, organized, fueled by race-​based hostility, and committed to fear and violence.”18 The Court advised that “[p]rolonged confinement in Supermax may be the State’s only option for the control of some inmates.”19 In contrast, none of the justices in Wilkinson discussed the harms of long-​term isolation detailed in the studies presented by health care professionals.20 Yet the Court also registered some qualms about solitary by holding that the Fourteenth Amendment required prison officials to ensure the fairness of decisions to put individuals into solitary. The Court’s gruesome details of the conditions (“almost all human contact is prohibited”) served to explain that

14 Austin v. Wilkinson, 204 F. Supp. 2d 1024, 1028 (N.D. Ohio 2002). 15 Austin v. Wilkinson, 372 F.3d 346, 356 (6th Cir. 2004). 16 Id. 358. 17 The Court stated that those claims were “settled in the District Court” although “[t]‌he extent to which the settlement resolved the practices that were the subject of the inmates’ Eighth Amendment claim [was] unclear.” Wilkinson, 545 U.S. at 218. The Sixth Circuit reported that the settlement dealt with “Eighth Amendment claims . . . related primarily to medical care and the provision of outdoor recreation . . . .” Austin, 372 F.3d at 349. The settlement provided that Ohio establish policies barring the use of solitary for the seriously mentally ill and requiring monitoring of health care as well as more time for recreation. 18 Wilkinson, 545 U.S. at 227. 19 Id. 229. 20 See Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent, Wilkinson v. Austin, 545 U.S. 209 (2005) (No. 04-​495), 2005 WL 539137. In the years since, additional empirical work documents isolation’s many harms. See Haney, Chapter 8, this volume; Hawkley, Chapter 11, this volume.

94  Not Isolating Isolation people so confined had a “liberty interest” that was extinguished when they were put in supermax.21 That proposition ought to have been obvious, but other Supreme Court decisions stood in the way. In the 1970s, the Court had opened the door to judicial review of prison conditions by affirming that the Constitution did not “stop” at the prison gates. One ruling required that, before taking away time that prisoners had earned off their sentences (“good-​time credits”), corrections officials had to provide procedural safeguards.22 Yet from the vantage point of some federal judges, prisoners were bringing too many claims to federal court. In response, the Supreme Court reshaped its doctrine to conclude that conviction and incarceration extinguished most liberty interests of prisoners.23 This framework gave prison officials a great deal of discretion, for example, to restrict and prohibit visitors,24 to transfer prisoners to higher security facilities,25 and to use segregation based on a host of rationales. Sometimes solitary was explained as “protective custody” (for prisoners’ safety); at other times as “discipline” (punishing misbehavior), and more generally as “administrative segregation,” a catch-​all predicated on a view of prisoners as a “threat” to institutional security.26 But under the Court’s law, absent a showing of an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life,” federal judges are instructed to leave a host of punitive decisions to prison officials.27 The Wilkinson Court’s detailed description of the isolating conditions at the Ohio Supermax, however, sufficed to constitute a “dramatic departure from the basic conditions of [the prisoner’s] sentence.”28 The potentially indefinite duration of solitary, which reduced the possibility of parole, persuaded the Court to conclude that Ohio’s supermax imposed an “atypical and significant hardship . . . .”29 Therefore, prisoners had a “protected liberty interest in avoiding assignment” to Ohio’s supermax.30 21 Wilkinson, 545 U.S. at 223–​24. 22 See Wolff v. McDonnell, 418 U.S. 539, 563 (1974). 23 See, e.g., Shaw v. Murphy, 532 U.S. 223 (2001); Sandin v. Conner, 515 U.S. 472 (1995). 24 See, e.g., Overton v. Bazzetta, 539 U.S. 126 (2003). 25 Meachum v. Fano, 427 U.S. 215 (1976). 26 See, e.g., Sandin, 515 U.S. at 475 n.1, 486. 27 Id. 484. The conditions at issue were “near-​solitary confinement for two months . . . .” Relying on that test, in 1998, a federal appellate court concluded that it was “not ‘atypical’ ” for a prisoner, Alvin Jones, to be in “segregation” when being investigated as a participant in a riot in which a prison guard died. The court concluded that, although the duration—​two and a half years—​was unusually long, the time in segregation did not give rise to a liberty interest because Mr. Jones’ stays “were not much different than expected by other inmates in segregation.” Jones v. Backer, 155 F.3d 810, 812–​13 (6th Cir. 1998). See generally Michael B. Mushlin & Naomi Roslyn Galtz, “Getting Real about Race and Prisoner Rights,” Fordham Urban Law Journal 36 (2009): 27. 28 Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 485). 29 The contrast was to the “ordinary incidents of prison life.” Id. 223 (quoting Sandin, 515 U.S. at 484). 30 Wilkinson, 545 U.S. at 220.

Judith Resnik  95 Nonetheless, the Court cut back on the procedures that the lower courts had required and reinstated Ohio’s process, which the state had expanded somewhat as the litigation proceeded.31 Under the Court’s ruling, all that was required was notice that included “a brief summary of the factual basis for the classification” and the provision of “a rebuttal opportunity” at the two levels of internal review.32 Prisoners could not present adverse witnesses because, the Court concluded, the state’s interest in control outweighed a potential right to confront adverse witnesses.33 The obligation of a short statement of reasons was, according to the Court, enough to buffer “against arbitrary decision making.”34 To make sense of the Supreme Court’s narrowing of judicial oversight of solitary placement requires looking both within and beyond the case law on prisoners’ rights. I have already flagged the racialized fear mongering of the last several decades and the unwillingness of some judges to respond to prisoners’ calls for help.35 Many members of Congress shared those attitudes, as can be seen from the enactment of what they called the “Prison Litigation Reform Act,” which imposed new barriers to prisoners seeking protection from the federal courts.36 Another factor was that Wilkinson was decided four years after the 9/​11 attacks, when the United States was holding hundreds of individuals in isolation at Guantánamo Bay.37 When Wilkinson was pending, the federal government filed an amicus brief going further than Ohio; the United States asserted that prisoners had no “liberty interest” in their placement in solitary confinement and therefore that governments had unfettered discretion about who was to be placed in isolation, why, and for how long.38 The Wilkinson Court’s references to individuals sowing “fear and violence”39 for whom “[p]‌rolonged confinement”40

31 See id. 224–​30. 32 Id. 226. 33 Id. 228–​29. 34 Id. 226. 35 Rhodes v. Chapman, 452 U.S. 337 (1981), is a key marker in the retreat of the federal courts from oversight. The Court held that the forced intimacy of double celling did not violate prisoners’ Eighth Amendment rights. 36 The Prison Litigation Reform Act of 1995, §§ 801–​810, Pub. L. No. 104-​134, 110 Stat. 1321 (1996), is a congressional endorsement of imposing barriers on prisoners’ access to federal courts. See Margo Schlanger, “Trends in Prisoner Litigation, as the PLRA Enters Adulthood,” University of California, Irvine Law Review 5 (2015): 153. 37 As of April 2007, 80% of the then-​385 or so detainees were isolated. See Amnesty Int’l, “United States of America: Cruel and Inhuman: Conditions of Isolation for Detainees at Guantánamo Bay,” 1, 2007, https://​www.amnesty.ie/​wp-​content/​uploads/​2016/​04/​Guantanamo-​Conditions.pdf. 38 Brief for the United States as Amicus Curiae Supporting Petitioners, Wilkinson, 545 U.S. 209 (No. 04-​495) at 10. In the appellate court, Ohio had argued that prisoners had no liberty interest in avoiding detention in the supermax, but in the Supreme Court, the state “conceded that the inmates have a liberty interest in avoiding assignment” to the supermax. Wilkinson, 545 U.S. at 221. 39 Wilkinson, 545 U.S. at 227. 40 Id. 229.

96  Not Isolating Isolation might be the “only option”41 could be read as aiming to avert substantive constitutional challenges to solitary offshore as well as on. Yet the impact of 9/​11 on the law and the politics of solitary is more complex. The revelations of the torture of 9/​11 detainees was one part of what helped bring solitary confinement to the fore of criminal justice reform. Sending people to Guantánamo was a technique to keep them hidden from view as well as to put them on display. The government aimed to inspire fear of terrorism and to demonstrate that it could ward off such threats—​literally holding such persons at bay. However, as evidence emerged about the torture and degradation at Guantánamo and at Abu Ghraib, and as the public read the text of memos by the Department of Justice offering “legal” justifications for water-​boarding and other grotesque treatment, a chorus of critics emerged. The link between individuals in Guantánamo Bay and prisoners in California’s Pelican Bay became vivid as, thousands of miles apart, individuals in both sites protested their confinement through hunger strikes. Three years later, in 2008, it was Justice Kennedy who wrote again for the Court in Boumediene v.  Bush,42 a case filed by detainees at Guantánamo Bay challenging a federal statute that curtailed their access to federal courts. His majority opinion insisted that the constitutional protection of the writ of habeas corpus applied to detainees—​whether citizens or not. In 2011, Justice Kennedy returned to the topic of on-​shore imprisonment. He authored the 2011 decision in Brown v. Plata,43 which upheld the findings of a three-​judge court that conditions in California prisons were so overcrowded (operating at 190% of capacity) that they posed an “extreme peril to the safety of persons they house.”44 Decades of denial of a “minimal level of medical and mental health care”45 had left many prisoners in “horrific conditions”46 that resulted in a “significant number of [deaths] . . . .”47 The lower court had therefore concluded, as required by Congress, that it had to use a “remedy of last resort”48—​population reductions. Justice Kennedy, writing for the majority of five, not only described the horror but also, atypically, provided pictures by appending photographs, two of which are reproduced in Figures 6.1 and 6.2. Shown are bunk beds massed

41 Id. 42 553 U.S. 723 (2008). 43 563 U.S. 493 (2011). 44 Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 887 (E.D. Cal. 2009) (quoting Ex. P1 at 7–​8, Governor Schwarzenegger’s October 4, 2006 Prison Overcrowding State of Emergency Declaration). 45 Id. 46 Id. 888. 47 Id. 48 Id. 889.

Judith Resnik  97

Figure 6.1  Photograph of beds in California Institute for Men, August 7, 2006; reproduced in Brown v. Plata, 563 U.S. 493, 548, Opinion of the Court, Appendix B (2011).

together and holding cages in which people were placed for hours while awaiting medical help.49 Moreover, even Wilkinson’s cribbed procedural requirements had opened the courthouse door to arguments that particular placements were “atypical” and imposed a “significant hardship.”50 By recognizing that prisoners could have a “liberty interest” if subjected to a particular form of solitary confinement, Wilkinson made it possible to argue to judges that state prison officials had violated prisoners’ constitutional rights. As a result, hundreds of decisions address solitary confinement, and some lower courts have found a few forms of solitary confinement to be actionable. For example, when reinstating a case that a trial court had dismissed, the US Court of Appeals for the Seventh Circuit began its opinion:

49 Plata, 563 U.S. at 548–​49 apps. B and C. The concern about the safety of prisoners also animated the 2003 bipartisan enactment of the Prison Rape Elimination Act of 2003, creating standards to avoid sexualized violence and imposing auditing requirements. Pub. L. No. 108-​79, 117 Stat. 972 (2003), codified at 42 U.S.C. §§ 15601 et seq. 50 Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484).

Figure 6.2  Photograph of Salinas Valley State Prison Correctional Treatment Center “(dry cages/​holding cells fo people waiting for mental health crisis bed),” July 29, 2008; reproduced in Brown v. Plata, 563 U.S. 493, 549, Opinion of the Court, Appendix C (2011).

Judith Resnik  99 Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete floor or slab; denied any human contact; fed nothing but “nutri-​loaf;” and given just a modicum of toilet paper—​four squares—​only a few times. Although this might sound like a stay at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002.51

The number of years that some individuals had been confined has been another factor in horrifying judges. In 2007, a federal court concluded that “28 to 35 year confinements” in lockdown in the Louisiana State Penitentiary in Angola violated the Constitution.52 In 2016, a district judge held unconstitutional the continued confinement of a Pennsylvania prisoner who had served 36  years in solitary confinement.53 The “extraordinary duration” of the prisoner’s confinement, combined with “the harsh consequences of involuntary isolation,” amounted to a “deprivation of constitutional proportion.”54 The remedy was to put the individual into general population to avoid exposing him “to an imminent and probable risk of even greater psychological damage.”55 Further, even as many judges rejected prisoners’ claims, the decisions expanded the public record on the practices and the harms of solitary confinement.56 In 2015, a decade after his apparent defense of solitary as a necessary artifact of prison life, Justice Kennedy appeared to invite a substantive challenge to its constitutionality. In a concurrence (joining in the rejection of a habeas petition) in Davis v. Ayala, Justice Kennedy noted that the petitioner, Hector Ayala, had been sentenced to death in 1989. Justice Kennedy commented that, if following “the usual pattern,” Mr. Ayala would have been held for decades “in a windowless cell no larger than a typical parking spot for 23 hours a day . . . [and] allowed little or no opportunity for conversation or interaction with anyone.”57 Relying on data collected in the late 1990s, Justice Kennedy observed it was likely that about “25,000 inmates in the United States”58 were living in such conditions—​“regardless of their conduct in prison.”59 To underscore the

51 Gillis v. Litscher, 468 F.3d 488, 489 (7th Cir. 2006). 52 Wilkerson v. Stalder, 639 F. Supp. 2d 654, 659 (M.D. La. 2007). 53 Johnson v. Wetzel, 209 F. Supp. 3d 766, 770, 781 (M.D. Pa. 2016). 54 Id. 776. 55 Id. 781. 56 See, e.g., Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1336 (10th Cir. 2007); Al-​Amin v. Donald, 165 Fed. Appx. 733, 738 (11th Cir. 2006); Skinner v. Cunningham, 430 F.3d 483, 485 (1st Cir. 2005). 57 Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring). 58 Id. 59 Id. 2209.

100  Not Isolating Isolation resulting harms of solitary, Justice Kennedy suggested that, when imposing a capital sentence, a judge tell such a defendant that “during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”60 Justice Kennedy also raised the legal question of solitary’s constitutionality by commenting that the “judiciary may be required . . . to determine whether workable alternative systems for long-​term confinement exist, and, if so, whether a correctional system should be required to adopt them.”61 Within a month, Justice Breyer, joined by Justice Ginsburg in a dissent arguing that the death penalty was unconstitutional, echoed Justice Kennedy’s distress and condemned “[t]‌he dehumanizing effect of solitary confinement . . . .”62 Just as analyzing Wilkinson requires looking both in and outside the case law on solitary, understanding the shift reflected in Ayala v. Davis requires exploring the ways in which solitary, once justified as necessary for the “worst of the worst,”63 was losing that patina. I have already discussed the international condemnation of conditions imposed on 9/​11 detainees and judicial distress about extreme long-​term solitary and its use for the mentally ill. In addition, a social movement developed to bring media and political attention to the distinctive oppression of solitary confinement. In 2010, the ACLU’s National Prison Project launched its “Stop Solitary” campaign, producing reports of horrific conditions for thousands of prisoners held in Texas64 and in “the box” in New York State.65 Suicides of young men in pre-​ trial detention at Rikers Island and the hunger strikes at Pelican Bay in California brought media attention to the suffering of those held in solitary. Organizations such as the Vera Institute worked with prison officials to create alternatives,66 and 60 Id. 61 Id. 2210. 62 Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., and Ginsburg, J., dissenting). Justice Breyer continued to raise the problem of solitary in subsequent cases, again as dissents from executions. See, e.g., Jordan v. Mississippi, 138 S. Ct. 2567, 2568 (2018) (Breyer, J., dissenting); Ruiz v. Texas, 137 S. Ct. 1246, 1246–​47 (2017) (Breyer, J., dissenting). 63 Judge Thelton Henderson cited the use of that phrase by the defendant correctional officials. See Madrid v. Gomez, 889 F. Supp. 1146, 1155 (N.D. Cal. 1995). 64 See Burke Butler and Matthew Simpson, “A Solitary Failure:  The Waste, Cost and Harm of Solitary Confinement in Texas,” ed. Rebecca L. Robertson (American Civil Liberties Union of Texas, 2015), https://​www.aclutx.org/​sites/​default/​files/​field_​documents/​SolitaryReport_​2015.pdf. 65 Scarlet Kim, Taylor Pendergrass, and Helen Zelon, “Boxed In:  The True Cost of Extreme Isolation in New  York’s Prisons,” ed. Jennifer Carnig, Mike Cummings, Helen Zelon, Donna Lieberman, Art Eisenberg, and Christopher Dunn (New York Civil Liberties Union, 2012), https://​ www.nyclu.org/​sites/​default/​files/​publications/​nyclu_​boxedin_​FINAL.pdf. 66 See Alison Shames, Jessa Wilcox, and Ram Subramanian, “Vera Institute of Justice, Solitary Confinement:  Common Misconceptions and Emerging Safe Alternatives,” 2015, https://​storage. googleapis.com/ ​ v era- ​ w eb- ​ a ssets/ ​ d ownloads/ ​ P ublications/ ​ s olitary- ​ c onfinement- ​ c ommon-​ misconceptions- ​ and-​ e merging-​ s afe-​ a lternatives/​ l egacy_​ d ownloads/​ s olitary-​ c onfinement-​ misconceptions-​safe-​alternatives-​report_​1.pdf; see also Léon Digard, Sara Sullivan, and Elena

Judith Resnik  101 class actions put the harms to subpopulations in sharp relief.67 Cases brought on behalf of the seriously mentally ill, juveniles, and individuals with disabilities succeeded. Rulings or settlements in many jurisdictions, including Arizona, California, Pennsylvania, and Alabama specified the predicates to and the limits on the use of isolation.68 In 2018, New York City agreed to pay a total of $5 million to 470 former detainees at Rikers Island whom the City had placed in solitary confinement between 2012 and 2015.69 By then, legislators in many states had also weighed in. Although no state as of 2018 imposed a complete ban on solitary confinement, several sought to curb its use,70 and others were considering constraints.71 Massachusetts enacted a packet of reforms that included barring placement of pregnant prisoners in restrictive housing, using a person’s gender identity or sexual orientation as grounds for restrictive housing, curtailing the use of solitary for “protection” more generally, and limiting when solitary could be used as discipline or for security.72 In addition, Massachusetts imposed limits on solitary for persons with “a serious mental illness,” as did a few other jurisdictions.73 Moreover, what restrictive housing entailed was to change in Massachusetts for people held sixty days or more. Prisons and jails were to provide them “access to vocational, educational, and rehabilitative programming, to the maximum extent possible consistent with the safety and security of the unit”74 and to create “approximately the same conditions, privileges, amenities and opportunities” as were provided to the general population.75 Vanko, “Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems,” 2018, https://​www.vera.org/​rethinking-​restrictive-​housing. 67 See Elizabeth Alexander, “This Experiment, So Fatal:  Some Initial Thoughts on Strategic Choices in the Campaign Against Solitary Confinement,” University of California, Irvine Law Review 5 (2015): 1. 68 See, e.g., Braggs v. Dunn, 257 F. Supp. 3d 1171, 1181 (M.D. Al. 2017). The case challenged the Alabama prisons’ mental health care system; some 19,500 prisoners were then incarcerated, and 3,400 were receiving “some type of mental-​health treatment.” After a seven-​week trial, the court found unconstitutional the placement of “seriously mentally ill prisoners in segregation without extenuating circumstances and for prolonged periods of time; placing prisoners with serious mental-​ health needs in segregation without adequate consideration of the impact of segregation on mental health; and providing inadequate treatment and monitoring in segregation.” Id. 1268. 69 See Parker v. City of New York, No. 15 CV 6733 (CLP), 2017 WL 6375736 (E.D.N.Y. Dec. 11, 2017) (Memorandum and Order), available at https://​docs.justia.com/​cases/​federal/​district-​courts/​ new-​york/​nyedce/​1:2015cv06733/​378243/​58; see also Ashley Southall, “City Agrees to Pay Rikers Inmates It Forced Back into Solitary Confinement,” New York Times, December 12, 2017, https://​ www.nytimes.com/​2017/​12/​12/​nyregion/​rikers-​settlement-​solitary-​confinement.html. 70 See, e.g., Crimes and Offenses, 2018 Mass. Legis. Serv. Ch. 69 (S.B. 2371) (West) [hereinafter Massachusetts 2018 Solitary Confinement Reform Bill]. 71 See, e.g., S.B. 2859, 29th Leg. (Haw. 2018); L.B. 560, 105th Leg., 1st Sess. (Neb. 2017); A. 314, 218th Leg., 2018 Sess. (N.J. 2018); H.B. 795, 2018 Gen. Assemb., Reg. Sess. (Va. 2018). 72 Massachusetts 2018 Solitary Confinement Reform Bill, § 93. 73 Id.; see also Colo. Rev. Stat. Ann. § 17-​1-​113.8 (West 2017). 74 Massachusetts 2018 Solitary Confinement Reform Bill, § 93. 75 Id.

102  Not Isolating Isolation A mix of litigation and legislation has also produced widespread condemnation of solitary (sometimes called “room confinement”) for juveniles.76 Indeed, no one argued the wisdom of using isolation for people under the age of eighteen. In some instances, after judges found such confinement unlawful, legislation restrictions followed.77 For example, after a 2017 filing challenging state officials’ use of solitary confinement, shackling, and pepper spray in two youth detention facilities,78 the Wisconsin legislature ordered these two facilities closed. As others in this volume discuss, the developments in the United States are part of a transnational movement that, during the twenty-​first century, took up limits on solitary confinement. Building on the 2007 Istanbul Statement on the Use and Effects of Solitary Confinement,79 the U.N. General Assembly unanimously adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners, commonly known as the Nelson Mandela Rules.80 The 2015 rules included the first international definition of solitary confinement, described as holding a person for twenty-​two hours or more per day “without meaningful human contact.”81 The Nelson Mandela Rules provided that “solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.”82 The resulting rules concluded that solitary confinement was to “be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority,” and “shall not be imposed by virtue of a prisoner’s sentence.”83 Moreover, the rules defined “prolonged” or “indefinite” solitary confinement as holding a person more than fifteen days. The rules called for the prohibition of such detention because it constituted “torture” or other “cruel, degrading or inhuman treatment.”84

76 See, e.g., Cal. Welf. & Inst. Code § 208.3 (West 2018); see also Neb. Rev. Stat. § 83-​4,125. 77 See, e.g., Frazier ex rel. Doe v. Hommrich, No. 3-​16-​0799, 2017 WL 1091864, at *2 (M.D. Tenn. Mar. 22, 2017); Juvenile Justice Reform Act of 2018, § 13, 2018 Tenn. Pub. Acts Ch. 1052 (signed into law by the governor on May 21, 2018). 78 J.J. v. Litscher, No. 17-​CV-​47 (W.D. Wis. 2017), https://​www.clearinghouse.net/​chDocs/​public/​ JI-​WI-​0004-​0002.pdf; Preliminary Injunction, https://​www.clearinghouse.net/​chDocs/​public/​JI-​ WI-​0004-​0003.pdf. 79 See Peter Scharff Smith, “Solitary Confinement:  An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement,” Torture 18 (2008): 56; “The Istanbul Statement,” adopted December 9, 2007 at the International Psychological Trauma Symposium, http://​www. solitaryconfinement.org/​istanbul. 80 G.A. Res. 70/​175, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), December 17, 2015, http://​daccess-​ods.un.org/​access.nsf/​ GetFile?OpenAgent&DS=A/​RES/​70/​175&Lang=E&Type=DOC. 81 Id. Rule 44. 82 Id. Rule 45(2). 83 Id. Rule 45(1). 84 Id. Rule 43.

Judith Resnik  103 During the negotiations of those rules, prison officials from the United States were at the table, and these provisions have since become a reference point in US practices, which brings me to an important facet of the sources of change. To look only at pressures from outside prisons is to miss the action within. Since 2014, directors of several state prison systems revamped their policies to constrain the use of isolation because it was “the right thing to do.”85 In the fall of 2015, their national organization, the Association of State Correctional Administrators (ASCA)—​whose members are the directors of state and federal prison systems—​issued a statement that prolonged isolation was a “grave problem” and called for its reduction or elimination.86 In 2016, the larger umbrella organization of prison officials—​the American Correctional Association (ACA)—​issued new standards calling for limits on the use of restrictive housing.87 The emergence of time-​based categories of restrictive housing is important, as it reflects a consensus that keeping people in isolation is at least problematic if not impermissible. The Nelson Mandela Rules provided a cut-​off of fifteen days, beyond which the practice became “prolonged solitary confinement,” which was to be banned. In contrast, the ACA policies distinguished between “restrictive housing,” defined as requiring a prisoner “to be confined to a cell at least 22 hours per day,” and “extended restrictive housing,” defined as separating a prisoner “from contact with general population while restricting [the prisoner] to his/​her cell for at least 22 hours per day and for more than 30 days.”88 The ACA stated 85 ASCA and the Liman Center have done a series of reports on the use of solitary confinement. See Association of State Correctional Administrators and Liman Center for Public Interest Law, “Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies” (Public Law Working Paper No. 301, Yale Law School, 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861 [hereinafter ASCA-Liman 2013 Administrative Segregation Policies Report]; “Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison” (Public Law Research Pape No. 552, Yale Law School, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627 [hereinafter ASCALiman 2014 Time-in-Cell]; “Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death” (Public Law Research Paper No. 571, Yale Law School, 2016), https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2806015; “Aiming to Reduce Time-in-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms” (Public Law Research Paper No. 597, Yale Law School, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492 [hereinafter ASCA-Liman 2016 Aiming to Reduce Time-in-Cell]; “Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell” (Public Law Working Paper No. 656, Yale Law School, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350 [hereinafter ASCA-Liman 2018 Reforming Restrictive Housing]. All of the ASCA-Liman reports are also available at https://law.yale. edu/centers-workshops/arthur-liman-center-public-interest-law/liman-center-publications. 86 Association of State Correctional Administrators, “New Report on Prisoners in Administrative Segregation Prepared by the Association of State Correctional Administrators and the Arthur Liman Public Interest Program at Yale Law School,” press release, September 2, 2015, https://​perma.cc/​ V8TF-​BRCG. 87 American Correctional Association, “Restrictive Housing Performance Based Standards,” August 2016, http://​w ww.aca.org/​aca_​prod_​imis/​docs/​Standards%20And%20Accreditation/​ RHStandards2016.pdf. 88 Id. 3.

104  Not Isolating Isolation that prisons and local detention facilities should not place individuals “under the age of 18,”89 pregnant prisoners,90 or people with “serious mental illness”91 in extended restrictive housing. Further, correctional systems were not to use gender identity alone as the basis for restrictive housing. In terms of exit policies, the ACA called on jurisdictions to have written policies, practices, and procedures that avoided releasing persons from extended restrictive housing directly into the community.92 In short, within a decade, long-​term solitary had stopped being an accepted solution to a problem and came to be seen as a problem that itself needed to be solved. One approach is abolition, as called for by the Nelson Mandela Rules. As of this writing, Colorado is the only jurisdiction in the United States to have announced that it was ending isolation of fifteen days or more for twenty-​two hours or more per day. Other correctional departments have revised policies to recognize the overuse of solitary and turn it into a disfavored practice. But thus far, many prison officials have not abandoned solitary confinement. As detailed in the next section, doing so would require a significant change in how US prisons currently function.

The facts and figures of solitary in U.S. prisons Knowing how the growing concerns about solitary confinement affect people in prison requires aggregate empirical information about the role solitary plays. One question is whether Justice Kennedy was right when, in 2015, he described the “usual pattern” of people being held in windowless parking-​space-​sized cells for twenty-​three hour days for years on end.93 Other issues center on the justifications used for placement and the numbers and demographics of the people held. To create a shared understanding of isolation and to enable cross-​jurisdictional comparisons and evidence-​based analyses, ASCA and the Liman Center at Yale Law School launched a joint project, begun in 2012, to explore the use of solitary confinement across the United States.94 Below, I sketch some of the findings from 89 Id. 39 (ACA Standard 4-​RH-​0034 for prisons), 66 (ACA Standard 4-​ALDF-​RH-​025 for local detention facilities). 90 Id. 38 (ACA Standard 4-​RH-​0033 for prisons), 65 (ACA Standard 4-​ALDF-​RH-​024 for local detention facilities). 91 Id. 36 (ACA Standard 4-​RH-​0031 for prisons), 69 (ACA Standard 4-​ALDF-​RH-​028 for local detention facilities). 92 Id. 35 (ACA Standard 4-​RH-​0030). 93 Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring). 94 The Arthur Liman Center for Public Interest Law was endowed to honor Arthur Liman, who graduated in 1957 from Yale Law School.

Judith Resnik  105 a series of ASCA-​Liman reports issued between 2013 and 2018. Before doing so, caveats about the ambitions and the limits of the data are in order. Correctional officials have adopted the umbrella “restrictive housing” to create some uniformity because the terms for solitary confinement and the definitions vary, as do the reasons for placement.95 Further, states and the federal system do not keep the same information about the demographics and numbers of people in solitary, the reasons for placement, the lengths of stay, and the conditions of confinement. Moreover, information came from statewide systems, rather than country or local level institutions, which means that the focus was on prisons rather than jails or on immigration, military, and juvenile facilities. In short, while we were able to paint a composite picture, we were not able to be as comprehensive or specific as we would have liked because of the lack of standardized data collection across the prison and jail systems in the United States. In 2012, we sought to understand the governing rules. ASCA and Liman asked directors of state and federal corrections systems to provide policies on “administrative segregation,” defined then as removing a prisoner from general population to spend twenty-​two to twenty-​three hours a day in a cell for thirty days or more. The resulting 2013 Report, based on responses from forty-​seven jurisdictions, taught us that getting into segregation was relatively easy, but few regulations focused on getting people out. Many jurisdictions authorized moving a prisoner into segregation if that prisoner posed “a threat” to institutional safety96 or a danger to “self, staff, or other inmates.”97 Constraints on decision-​making were rare. The kind of notice provided to individuals and what constituted a “hearing” varied substantially. The hopes expressed in 2005 in Wilkinson v. Austin—​that minimal due process

95 The principle justifications are protection, discipline, and generic “administrative” concerns. The placement terms include “administrative confinement,” “administrative segregation,” “close supervision,” “behavior modification,” “departmental segregation,” “enhanced supervision housing” (ESH), “inmate segregation,” “intensive management,” “special management unit” (SMU), “secure (or special) housing units” (SHU), “security control,” and “maximum control units.” 96 ASCA-Liman 2013 Administrative Segregation Policies Report, 5. 97 Id. (quoting Federal Bureau of Prisons, P5217.01). For example, Delaware authorized administrative segregation if staff determined that the “continued presence in the general population pose[d]‌ a threat to life, property, self, staff, other offenders, or to the safety/​security or orderly operation of the facility.” Id. 9 (quoting Delaware DOC Policy 4.3(IV)(A)). Arkansas authorized corrections staff to place an individual into solitary upon finding “other circumstances where, in the judgment of staff, the offender may pose a threat to the security of the facility.” Id. 8 (quoting AR 836 DOC(VI)(A)(6)). Hawaii’s 2013 policy was that staff could put a person into isolation if “the continued presence . . . in general population would pose a serious threat to the community, property, self, staff, other inmates, or the security or the good government of the facility.” Id. 9 (quoting COR.11.01.2.2(a)(2)).

106  Not Isolating Isolation safeguards would buffer against arbitrariness—​were not reflected in the policies, which vested prison officials with enormous discretion. These permissive policies resulted in tens of thousands of individuals housed in profoundly isolated conditions. Exactly how many was the next question that ASCA and Liman asked. As noted, the number that Justice Kennedy cited was 25,000—​taken from a report tallying individuals held in “supermax” in the late 1990s.98 Therefore, in 2014, ASCA and Liman asked prison directors 130 questions about how many people were in restrictive housing (defined then as 30 days or more for 22 hours or more per day) and the conditions in which they lived. Responses came from forty-​six jurisdictions. The Report, “Time-​in-​Cell,” tallied 66,000 prisoners in 34 jurisdictions in restricted housing in 2014.99 Those prison systems housed about 73% of the 1.5  million people incarcerated in U.S.  prisons. Extrapolating, an estimated 80,000 to 100,000 people were in segregation in 2014.100 In many of the systems reporting, blacks and Hispanics were over-​represented in isolation when compared to the total prison population.101 That count did not include people in local jails, in juvenile facilities, or in military or immigration detention.

98 See Davis v. Ayala, 135 S. Ct. 2187, 2208–​09 (2015) (Kennedy, J., concurring) (citing Amnesty International, “Entombed, Isolation in the U.S. Federal Prison System,” (July 2014) 2 n.3, http://​www. amnestyusa.org/​sites/​default/​files/​amr510402014en.pdf). The Amnesty International report relied on the article by Daniel P. Mears, “A Critical Look at Supermax Prisons, Corrections Compendium,” September–​October 2005, which in turn used research from the late 1990s. See Daniel P. Mears, “Evaluating the Effectiveness of Supermax Prisons,” Urban Institute (March 2006), 4, app. 74 tbl.1, http://​www.urban.org/​research/​publication/​evaluating-​effectiveness-​supermax-​prisons (including a chart borrowed from Roy D. King that identified states in 1997–​1998 that had supermax facilities). 99 ASCA-​Liman 2014 Time-​in-​Cell at 3. Additional analyses of the data can be found in the essays in a symposium about the “Time-​in-​Cell” report. See, e.g., Reginald Dwayne Betts, “Only Once I Thought About Suicide,” Yale Law Journal Forum 125 (2016): 222, http://​www.yalelawjournal.org/​forum/​only-​ once-​i-​thought-​about-​suicide; Marie Gottschalk, “Staying Alive:  Reforming Solitary Confinement in U.S. Prisons and Jails,” Yale Law Journal Forum 125 (2016):  253, http://​www.yalelawjournal.org/​ forum/​reforming-​solitary-​confinement-​in-​us-​prisons-​and-​jails; Jules Lobel, “The Liman Report and Alternatives to Prolonged Solitary Confinement,” Yale Law Journal Forum 125 (2016):  238, http://​ www.yalelawjournal.org/​forum/​alternatives-​to-​prolonged-​solitary-​confinement; Judith Resnik, Sarah Baumgartel, and Johanna Kalb, “Time-​In-​Cell: Isolation and Incarceration,” Yale Law Journal Forum 125 (2016): 212, http://​www.yalelawjournal.org/​forum/​time-​in-​cell-​isolation-​and-​incarceration. 100 ASCA-​Liman 2014 Time-​in-​Cell at 3. As noted, the ASCA-​Liman reports rely on answers from those who run prisons. In the fall of 2015, the Bureau of Justice Statistics (BJS) released a survey drawn from another source—​prisoners. See Allen J. Beck, “Use of Restrictive Housing in U.S. Prisons and Jails, 2011–​12,” Bureau of Justice Statistics (October 2015), http://​www.bjs.gov/​content/​pub/​pdf/​ urhuspj1112.pdf. Based on responses during 2011–​2012 from 91,177 inmates in 233 state and federal prisons and in 357 jails, BJS found that almost 20% of those detainees had been held in restricted housing within the prior year. The individuals more likely to have been placed in restricted housing were younger, lesbian, gay, bisexual, or mentally ill, and without a high school diploma. The BJS study found that expansive use of restrictive housing correlated with institutional disorder, such as gang activity and fighting, rather than with calmer environments. 101 ASCA-​Liman 2014 Time-​in-​Cell at 30.

Judith Resnik  107 In addition to numbers and demographics, we also sought to understand what happened during the time spent in isolation. The answers made plain that “solitary” bears that name because of what it is. The descriptions that Justice Kennedy provided in Wilkinson were not out of date. Survey data demonstrated that solitary cells were small, ranging from 45 to 128 square feet, sometimes double-​ bunked to accommodate more people. In the majority of jurisdictions, prisoners spent twenty-​three hours in their cells on weekdays and forty-​eight hours straight on weekends. Opportunities for social contact, such as out-​of-​cell time for exercise, visits, and programs, were sharply curtailed—​ranging from three to seven hours a week in many jurisdictions. In a few states, opportunities to make phone calls or have visits did not exist. In others, the potential to have contact could be as infrequent as once per month, while a few jurisdictions provided more. Further, in most jurisdictions, staff could punish prisoners by limiting the already-​meager access to social contact, programs, and exercise.102 Just as Justice Kennedy had described, such segregation generally had no fixed endpoint. Further, several systems did not keep track of the numbers of continuous days that a person remained in isolation. In the twenty-​four jurisdictions reporting on the duration of such confinement in 2014, a substantial number indicated that prisoners were in segregation for more than three years.103 As for release and reentry, in 30 jurisdictions that had tracked the numbers in 2013, a total of 4,400 prisoners went directly from the isolation of administrative segregation to release to the community.104 The 2014 report also gathered data on the difficult role that such settings impose on staff. Concerns about what is now called “well-​being” had, by 2014, prompted some corrections departments to require additional training and flexible schedules, rotations, or extra benefits for the assignment. ASCA and the Liman Center sent two more surveys (with others planned for the future). For the 2015–​2016 inquiries, we defined restrictive housing as twenty-​two hours or more in cells (single or double) per day for fifteen days or more.105 The 48 jurisdictions responding housed more than 96% of the U.S. prison population. Of the 1,387,161 prisoners included in the survey, 67,442 were in restrictive housing.106 The median jurisdiction held 5.1% of its incarcerated population in solitary.107 Jurisdictions ranged from holding a half percent

102 Id. 37–​38 (time in cell), 39 (size of cell), 41–​43 (time for exercise and showers), 43–​49 (opportunities for interpersonal contact), 49–​50 (disciplinary sanctions and rewards). 103 Id.  27–​28. 104 Id. 29. 105 ASCA-​Liman 2016 Aiming to Reduce Time-​in-​Cell at 7. 106 Id. 22-​23 table 2. 107 Id. 7, 22-​23 table 2.

108  Not Isolating Isolation to, in one small jurisdiction, confining a quarter of the prison population in isolation.108 In 2017–​2018, we modified the definition of restrictive housing; we asked how many people were held on average (rather than per day) for twenty-​two hours or more per day for fifteen days or more.109 According to available 2016 data from the Bureau of Justice Statistics, the United States held more than 1.5 million people in prisons,110 and 43 jurisdictions, housing 80.6% of that population, provided data on their general populations and people in restrictive housing. Those 43 jurisdictions reported a total of 49,197 prisoners in restrictive housing. The median jurisdiction held 4.2% of its population in restrictive housing, which is close to the average—​4.6%—​across the jurisdictions.111 The percentage in restrictive housing ranged from 0.05% to 19%.112 Assuming that the number of people incarcerated in the fall of 2017 was the same as in 2016 and that the same percentage of prisoners was in restrictive housing in jurisdictions for which we lacked data, we estimated that approximately 61,000 prisoners were in restrictive housing across the United States in the fall of 2017.113 Data on how long people were kept in restrictive housing came from 36 jurisdictions, describing the experiences of 41,061 people.114 About a fifth (9,345 or 22.8%) were reported held in restrictive housing for 15 to 30 days, and almost another third were held from one to three months. About a quarter were held between three months and a year. Nine percent of the 41,061—​3,721 people—​ were held for more than three years. And, of that group, 1,950 were reported to be isolated for more than six years.115 The critical reminders are that many 108 Id. 7, 22-​23 table 2. The percentage of prisoners in restricted housing ranged from 0.5% (Hawaii, in-​state only) to 28.3% (Virgin Islands). The Virgin Islands was also the jurisdiction reporting the smallest absolute number of prisoners in the total custodial population (491 prisoners). 109 ASCA-​Liman 2018 Reforming Restrictive Housing at 8. A few jurisdictions have consolidated systems, in which jails and prisons are under the same administration. But most jails are operated at the county or municipal level. As of 2016, about 740,700 people were confined in county and city jails in the United States; some detainees were held in isolation. See Zhen Zeng, “Jail Inmates in 2016,” Bureau of Justice Statistics (February 1, 2018), https://​www.bjs.gov/​content/​pub/​pdf/​ji16.pdf; see also Allen J. Beck, “Use of Restrictive Housing in U.S. Prisons and Jails, 2011–​12,” Bureau of Justice Statistics (October 2015), http://​www.bjs.gov/​content/​pub/​pdf/​urhuspj1112.pdf. 110 E. Ann Carson, “Prisoners in 2016,” Bureau of Justice Statistics (April 2018), 4 table 2, https://​ www.bjs.gov/​content/​pub/​pdf/​p16.pdf. 111 See ASCA-​Liman 2018 Reforming Restrictive Housing at 10-​11. 112 Id. 11. The jurisdiction at the lowest part of that range was Colorado, and the jurisdiction at the highest was Louisiana. Id. 12-​13 table 1. About 20,000 of Louisiana’s prisoners were held in local jails, over which the state had neither direct control nor exact data on the numbers held in restrictive housing. Prison officials estimated that about 10% of the combined prison and jail population were in restrictive housing, as state officials thought the practice was less common in local jails than in state prisons. Id. ­figure 1. Louisiana was also working with the Vera Institute for Justice to reduce the use of solitary confinement. Id. 82 n.243. 113 Id. 10. 114 Id. 14. 115 Id.

Judith Resnik  109 jurisdictions did not report on the length of time a person spent in solitary; that some jurisdictions did not start tracking duration information until recently; and that those reporting on duration may not have been able to provide retrospective data but only the time spent since they began collecting information on time spent in isolation.116 To put the 2018 data in context, we also compared information from the 40 jurisdictions that had provided numbers on restrictive housing in both the 2015–​2016 and 2017–​2018 surveys. Across these 40, the percentage of prisoners in restrictive housing decreased from 5.0% in 2015 to 4.4% in 2017.117 In 28 of those jurisdictions, the numbers of prisoners in restrictive housing had gone down, and in 12, they had increased.118 Understanding the causes is more complex than identifying the correlations. Several variables might affect these numbers, including changes in the numbers of persons in a jurisdiction’s prison, the mix of individuals, the facilities, staffing, litigation, and legislation, as well as the implementation of new policies. Another set of comparisons comes from the amount of time spent in restrictive housing. Thirty-​one jurisdictions responded with information on length of stay in both the 2015–​2016 and the 2017–​2018 surveys. In these jurisdictions, the numbers of individuals in restrictive housing across most time periods decreased somewhat.119 Above, I  detailed the 2012–​ 2013 ASCA-​ Liman inquiry into corrections departments’ rules, which gave wide discretion to correctional staff to place individuals in restrictive housing and put little emphasis on moving people out. In contrast, by 2018, many prison directors described narrowing the bases for entry. In some jurisdictions, behaviors such as “horse play” or possession of small amounts of marijuana—​which previously could have been used to justify placement in restrictive housing—​were no longer supposed to lead to isolation.120 In addition, jurisdictions reported expanding the oversight of placement, altering the amount of time spent in-​cell, offering more opportunities for socialability through programs and recreation, and considering less-​restrictive alternatives before placement in restrictive housing.121 Further, 36 jurisdictions reported that they had reviewed their policies since the release of the 2016 ACA Standards, and more than two dozen stated that they had relied on the ACA Standards when revising policies.122 116 Id. 14, 16 table 3 (“Years When Tracking Length of Time in Restrictive Housing Began in Thirty Jurisdictions.”). 117 Id. 95. 118 Id. 119 Id. 100, 101 table 22. 120 Id. 60. 121 Id. 60–​61 (Entry and Oversight), 61–​62 (Time Out-​of-​Cell, Sociability, and Programming), 62–​63 (Staff Training, Release). 122 Id. 64.

110  Not Isolating Isolation In sum, in the six-​year time span from 2013 to 2018, a significant shift in culture had taken place. Directors of many correctional systems no longer embraced the ready reliance on restrictive housing; instead, they had reframed formal policies to reduce the number of people placed there. Some evidence that these shifts had an impact in practice comes from the data I have just provided. As far as we know from the reporting jurisdictions, the numbers of people in solitary confinement are not going up. Rather, this longitudinal account over six years identified several jurisdictions reporting that fewer people were in restrictive housing, and those who were spent less time there and had more opportunities for social activities when so confined.123 And in Colorado, the director announced the end of holding anyone twenty-​two hours or more per day in a cell for fifteen days or more.124

Atypical, commonplace, and familiar: Solitary confinement in context Rather than use photographs of solitary confinement as a way to capture the concerns that animate this chapter, I have replicated two images used by Justice Kennnedy in his decision in Brown v. Plata, which held conditions in California’s prisons unconstitutional. These photographs reflect the need to rethink the constitutional approach put forth in 2005 in Wilkinson v. Austin, which required procedural protections only when judges found that placements in solitary were “atypical” and imposed a “significant hardship . . . .”125 Wilkinson was unclear about the baseline by which to identify the “atypical,” in terms of whether the reference was to people in other forms of restrictive housing (such as individuals sentenced to death in some jurisdictions) or to those held in general population.126 123 See id.  67–​81. 124 Id. 67. 125 Wilkinson, 545 U.S. 209, 222 (2005) (quoting Sandin, 515 U.S. at 484). 126 Wilkinson, 545 U.S. at 214. In some decisions, judges have applied Wilkinson by comparing individuals not to those in the general population but to individuals housed in special settings. One example was the case of Alfredo Prieto, held in solitary under Virginia’s policy that all persons “sentenced to Death will be assigned directly to Death Row . . . .” Prieto v. Clarke, No. 1:12cv1199 (LMB/​ IDD), 2013 U.S. Dist. LEXIS 161783 at *6 (E.D. Va. Nov. 12, 2013) (quoting Pl.’s Mem., Ex. 2, at 5). Without any individual inquiry, Prieto was placed in conditions that a federal district court judge described as “eerily reminiscent” of those in Wilkinson v. Austin. Id. *16. Over a dissent, the Fourth Circuit rejected that claim: imprisonment in conditions that the trial court had found to be “uniquely severe” and “dehumanizing” did not rise to a constitutional violation because all persons on death row were treated the same. Prieto v. Clarke, 780 F.3d 245, 248, 254–​55 (4th Cir. 2015). A petition for certiorari was pending when, on October 1, 2015, Virginia executed Mr. Prieto. Another decision, Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999), rendered before Wilkinson, identified the lack of clarity in the 1995 Sandin decision about the baseline to use for assessing “atypicality” and “significant hardships.”

Judith Resnik  111 What the pictures of the California prison system reflect is that conditions in general population are regularly awful and disabling. Moreover, the ASCA-​ Liman monographs underscore just how deep deprivations of solitary confinement are and that the deprivations are commonplace in prison systems across the United States. Indeed, until 2017, when Colorado’s prison system announced that it would no longer hold anyone beyond fifteen days for twenty-​two hours or more per day in a cell, every prison system in the United States used solitary confinement, and most continue to do so. More than 60,000 people are housed in such settings across the United States. The “atypical” is thus also typical, in the sense that it can be found throughout the country. Solitary confinement is typical in another sense. It is a variation on the theme of isolation, which is central to prisons. What makes solitary difficult to dislodge is not only its widespread use and the large number of people in it, but also its nest within a set of ordinary prison practices designed to isolate. A ready illustration comes from the first ASCA-​Liman project—​a 2012 survey of prison systems’ rules on how families and friends visit prisoners.127 We wanted to understand the practices because empirical research documented that having visitors helped to reduce prisoners’ distress when in prison and helped them succeed once released.128 We learned that a few states facilitated visits by providing various hours to do so, rooms that welcomed children, and helpful staff. But many prison systems put up obstacles. Visitors often had to make long journeys to remote locations, were permitted entry on only a few days, and could be rejected based on the clothes that they wore or the language that they spoke.129 The harms of such policies to families and communities has been documented, including arguments that constitutional law requires access for children to their parents and that decent and wise policies must take into account how children are harmed by being cut off from their parents.130Moreover, prisons regularly take away visiting opportunities as a sanction. Michigan merits special mention for doing so; the state prison officials banned all visits for two years as a 127 Chesa Boudin, Aaron Littman, and Trevor Stutz, “Prison Visitation Policies:  A Fifty-​State Survey,” Yale Law & Policy Review 32 (2013):  149, http://​digitalcommons.law.yale.edu/​cgi/​ viewcontent.cgi?article=1654&context=ylpr. Related essays can be found in the same volume. 128 See, e.g., Grant Duwe and Valerie Clark, “Blessed Be the Social Tie That Binds: The Effects of Prison Visitation on Offender Recidivism,” Criminal Justice Policy Review 24 (2013): 271, 277; Gary C. Mohr, “An Overview of Research Findings in the Visitation, Offender Behavior Connection,” Ohio Department of Rehabilitation & Correction (2012), http://​www.asca.net/​system/​assets/​attachments/​ 4991/​OH%2oDRC%2oVisitation%2oResearch%2oSummary.pdf. 129 Boudin, Littman, and Stutz, “Prison Visitation Policies,” 167–​68. 130 See, e.g., Chesa Boudin, “Children of Incarcerated Parents:  The Child’s Constitutional Right to the Family Relationship,” Journal of Criminal Law and Criminology 101 (2011): 77; Peter Scharff Smith, When the Innocent Are Punished: The Children of Imprisoned Parents (Hampshire, UK: Palgrave, McMillan, 2014); Prisons, Punishment, and the Family: Towards a New Sociology of Punishment, ed. Rachel Condry and Peter Scharff Smith (London, UK:  Oxford University Press (2018)).

112  Not Isolating Isolation punishment for individuals found to have abused alcohol or drugs in the state’s prisons. Instead of finding that form of isolation unconstitutional, the U.S. Supreme Court in 2003 deferred to prison officials on when such a punishment could be imposed.131 In many prison systems, “lock-​downs” can close prisoners off, in their cells, for days, weeks, or months. More generally, prisoners in what could be termed “typical” maximum security prisons can be kept in their cells for most of many days. Indeed, after the settlement of the class action involving Pelican Bay in which prisoners in the “secure housing unit” (SHU) had been held in isolation for decades, some of those prisoners were transferred to general population. But, in July of 2018, a federal judge concluded that many were spending “an average of less than an hour of out-​of-​cell time each day, which [was] similar to the conditions they endured in the SHU.”132 Finding that practice a violation of the settlement agreement, the judge used the baseline of general population prisoners who, according to the defendant State of California, had “a minimum of ten hours a week” of out-​of-​cell time. Pause for a moment, however, to do the math: ten hours out means two hours a day for five days, which could mean twenty-​two hours a day in-​cell, and twenty-​four hours a day on weekends. In sum, in the United States, these many modes of isolation are generally taken for granted, just as, until the last few years, solitary confinement was taken for granted as both ordinary and necessary. “Numb” is a word that I borrow from Rick Rameisch, the former Director of Colorado’s prisons; at ASCA’s 2018 conference, he commented on the group’s response to a lecturer who had shown vivid pictures of lurid examples of prisoners harming themselves in grotesque ways. Rameisch reflected on how “numb” members of the audience were to stom­ach the disgusting images, presented just before lunch. The ordinary entailments of prison life depicted in pictures like those from Brown v. Plata are harms to which we have become collectively numb. Rather than direct prisoners, their advocates, and judges into forays about whether solitary confinement is “atypical,” measured by how many days and months and years with what degrees of deprivation are imposed as contrasted with other prison settings, constitutional law should require us to undo that which has come to be the commonplace and the typical in US prisons. 131 Overton v. Bazzetta, 539 U.S. 126 (2003). The decision upheld a restriction that cut off visits (except from lawyers and clergy) for a period of two years when prisoners were found to have twice violated substance-​abuse rules. Reinstatement of visits was at the warden’s discretion, and other limits (such as on the number of adults other than family permitted to visit) were also upheld. Those provisions remain. See Mich. Admin. Code Rule 791.6609(12) (West, Westlaw through Michigan Register, Issue Number 10-​2019, dated June 15, 2019), which also provides that the prison director can reconsider and remove “a permanent visitor restriction.” 132 Ashker v. Governor of California, No. 09-​cv-​05796-​CW, at 2 (N.D. Cal. July 3, 2018) (order granting plaintiffs’ motion regarding violation of settlement agreement provision requiring release of class members to general population).

Judith Resnik  113

Bibliography Alexander, Elizabeth. “This Experiment, So Fatal:  Some Initial Thoughts on Strategic Choices in the Campaign Against Solitary Confinement.” University of California, Irvine Law Review 5 (2015): 1–​48 American Correctional Association. “Restrictive Housing Performance Based Standards.” August 2016. https://​www.asca.memberclicks.net/​assets/​docs/​8.pdf. Amnesty International. “United States of America:  Cruel and Inhuman:  Conditions of Isolation for Detainees at Guantánamo Bay.” 2007. https://​www.amnesty.ie/​wp-​ content/​uploads/​2016/​04/​Guantanamo-​Conditions.pdf. Association of State Correctional Administrators. “New Report on Prisoners in Administrative Segregation Prepared by the Association of State Correctional Administrators and the Arthur Liman Public Interest Program at Yale Law School.” Press Release. September 2, 2015. https://​perma.cc/​V8TF-​BRCG. Association of State Correctional Administrators and Liman Center for Public Interest Law. “Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies.” 2013. https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2286861. “Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison.” 2015. https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2655627. “Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death.” 2016. https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2806015. “Aiming to Reduce Time-in-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms.” 2016. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492. “Who Pays: Fines, Fees, Bail, and the Cost of Courts.” 2017. https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3165674. “Reforming Restrictive Housing: The 2018 ASCALiman Nationwide Survey of Time-in-Cell.” 2018. https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3264350. All of these reports are also available at https://law.yale.edu/ centers-workshops/arthur-liman-center-public-interest-law/liman-center-publications. Baumgartel, Sarah, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter, and Judith Resnik. “Time-​ In-​ Cell:  The ASCA-​ Liman 2014 National Survey of Administrative Segregation in Prison.” Public Law Working Paper No. 552. Yale Law School, 2015. http://​ssrn.com/​abstract=2655627 and https://​law.yale.edu/​system/​files/​ area/​center/​liman/​document/​time_​in_​cell_​2014_​final_​combined.pdf. Beck, Allen J. “Use of Restrictive Housing in U.S. Prisons and Jails, 2011–​12.” Bureau of Justice Statistics. October 2015. http://​www.bjs.gov/​content/​pub/​pdf/​urhuspj1112.pdf. Betts, Reginald Dwayne. “Only Once I  Thought About Suicide.” Yale Law Journal Forum 125 (2016):  222–​ 229. http://​www.yalelawjournal.org/​forum/​only-​once-​i​thought-​about-​suicide. Boudin, Chesa. “Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship.” Journal of Criminal Law and Criminology 101 (2011): 77–​118. Boudin, Chesa, Aaron Littman, and Trevor Stutz. “Prison Visitation Policies: A Fifty-​State Survey.” Yale Law & Policy Review 32 (2013): 149–​189. http://​digitalcommons.law.yale. edu/​cgi/​viewcontent.cgi?article=1654&context=ylpr. Butler, Burke, and Matthew Simpson. “A Solitary Failure:  The Waste, Cost and Harm of Solitary Confinement in Texas.” Edited by Rebecca L. Robertson. Houston, TX: American Civil Liberties Union of Texas, 2015. https://​www.aclutx.org/​sites/​ default/​files/​field_​documents/​SolitaryReport_​2015.pdf.

114  Not Isolating Isolation Carson, E. Ann. “Prisoners in 2016.” Bureau of Justice Statistics. April 2018. https://​www. bjs.gov/​content/​pub/​pdf/​p16.pdf. Condry, Rachel and Peter Scharff Smith, eds. Prisons, Punishment, and the Family: Towards a New Sociology of Punishment. London, UK: Oxford University Press, 2018. Digard, Léon, Sara Sullivan, and Elena Vanko. “Vera Institute of Justice, Rethinking Restrictive Housing:  Lessons from Five U.S. Jail and Prison Systems.” 2018. https://​ www.vera.org/​rethinking-​restrictive-​housing. Duwe, Grant, and Valerie Clark. “Blessed Be the Social Tie That Binds:  The Effects of Prison Visitation on Offender Recidivism.” Criminal Justice Policy Review 24 (2013): 271–​296. “Entombed, Isolation in the U.S. Federal Prison System.” Amnesty International. July 2014. http://​www.amnestyusa.org/​sites/​default/​files/​amr510402014en.pdf. G.A. Res. 70/​175. “United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).” December 17, 2015. http://​daccess-​ods.un.org/​ access.nsf/​GetFile?OpenAgent&DS=A/​RES/​70/​175&Lang=E&Type=DOC. Gottschalk, Marie. Caught:  The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press, 2016. Gottschalk, Marie. “Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails.” Yale Law Journal Forum 125 (2016): 253–​266. http://​www.yalelawjournal.org/​ forum/​reforming-​solitary-​confinement-​in-​us-​prisons-​and-​jails. Hinton, Elizabeth. From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Cambridge, MA: Harvard University Press, 2016. Kim, Scarlet, Taylor Pendergrass, and Helen Zelon. “Boxed In: The True Cost of Extreme Isolation in New  York’s Prisons.” Edited by Jennifer Carnig, Mike Cummings, Helen Zelon, Donna Lieberman, Art Eisenberg, & Christopher Dunn. New  York, NY: New York Civil Liberties Union, 2012. https://​www.nyclu.org/​sites/​default/​files/​ publications/​nyclu_​boxedin_​FINAL.pdf. Lobel, Jules. “The Liman Report and Alternatives to Prolonged Solitary Confinement.” Yale Law Journal Forum 125 (2016): 238–​245. http://​www.yalelawjournal.org/​forum/​ alternatives-​to-​prolonged-​solitary-​confinement. Lobel, Jules. “Prolonged Solitary Confinement and the Constitution.” University of Pennsylvania Journal of Constitutional Law 11 (2008): 115–​138. Mears, Daniel P. “A Critical Look at Supermax Prisons, Corrections Compendium.” September–​October  2005. Mears, Daniel P. “Evaluating the Effectiveness of Supermax Prisons.” Urban Institute. March 2006. http://​www.urban.org/​research/​publication/​evaluating-​effectiveness​supermax-​prisons. Metcalf, Hope, Jamelia Morgan, Samuel Oliker-Friedland, Judith Resnik, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook, “Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies” Public Law Working Paper No. 301. New Haven, CT: Yale Law School, 2013). http://ssrn.com/abstract=2286861 and https://law.yale.edu/system/files/area/ center/liman/document/Liman_overview_segregation_June_25_2013_TO_POST_ FINAL(1).pdf. Mohr, Gary C. “An Overview of Research Findings in the Visitation, Offender Behavior Connection.” Columbus, OH:  Ohio Department of Rehabilitation and Correction, 2012.

Judith Resnik  115 Mushlin, Michael B., and Naomi Roslyn Galtz. “Getting Real About Race and Prisoner Rights.” Fordham Urban Law Journal 36 (2009): 27–​52. Reiter, Keramet. 23/​7: Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement. New Haven, CT: Yale University Press, 2016. Resnik, Judith, Sarah Baumgartel, and Johanna Kalb. “Time-​ In-​ Cell:  Isolation and Incarceration.” Yale Law Journal Forum 125 (2016):  212–​ 221. http://​www. yalelawjournal.org/​forum/​time-​in-​cell-​isolation-​and-​incarceration. Schlanger, Margo. “Trends in Prisoner Litigation, as the PLRA Enters Adulthood.” University of California, Irvine Law Review 5 (2015): 153–​178. Shames, Alison, Jessa Wilcox, and Ram Subramanian. Vera Institute of Justice, Solitary Confinement:  Common Misconceptions and Emerging Safe Alternatives. New  York, NY:  Vera Institute of Justice, 2015. https://​storage.googleapis.com/​vera-​web-​assets/​ downloads/ ​ P ublications/ ​ s olitary- ​ c onfinement-​ c ommon-​ m isconceptions-​ and-​ emerging-​safe-​alternatives/​legacy_​downloads/​solitary-​confinement-​misconceptions-​ safe-​alternatives-​report_​1.pdf. Smith, Peter Scharff. “Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement.” Torture 18 (2008): 56–​62. Smith, Peter Scharff. When the Innocent Are Punished: The Children of Imprisoned Parents. Hampshire, UK: Palgrave McMillan, 2015. Southall, Ashley. “City Agrees to Pay Rikers Inmates It Forced Back into Solitary Confinement.” New York Times, December 12, 2017. https://​www.nytimes.com/​2017/​ 12/​12/​nyregion/​rikers-​settlement-​solitary-​confinement.html. “The Istanbul Statement.” Adopted December 9, 2007 at the International Psychological Trauma Symposium. http://​www.solitaryconfinement.org/​istanbul. Zeng, Zhen. “Jail Inmates in 2016.” Bureau of Justice Statistics. February 1, 2018. https://​ www.bjs.gov/​content/​pub/​pdf/​ji16.pdf.

7

Torture, Solitary Confinement, and International Law Juan E. Méndez*

Introduction Solitary confinement was once considered so inhuman that Charles Dickens famously condemned it as he wrote of his travels in the United States.1 Later in the nineteenth century the United States Supreme Court declared it unconstitutional.2 And yet solitary confinement came back in the second half of the twentieth century as an instrument of choice in prison administration. Despite the dearth of information from different jurisdictions, it is clear that isolation is used widely—​and its use has increased—​and for a variety of purposes. If at first it was reserved as one of the more serious sanctions for breach of prison discipline, nowadays it is used in many countries even for relatively minor infractions; the maximum time limits have also been expanded and consecutive terms of segregation are also more common. In addition, some countries use isolation as the mode of execution of sentences for serious offenses. In other countries, it is imposed not as a penalty but as the specific form of preventive detention while investigations continue and to prevent the accused from interfering with them. And in the United States it is used as a prison management tool, without regard to any behavior of the affected prisoner. Under various names and labels, solitary confinement has escaped scrutiny because the public does not automatically associate it with torture or inhuman treatment, despite the fact that prolonged or indefinite isolation clearly meets the standard of deliberate infliction, by a state agent, of severe pain and suffering of a physical or mental nature.3 There are, of course, legitimate uses for short term * Professor of Human Rights Law in Residence, Washington College of Law, American University. Former UN Special Rapporteur on Torture (2010–​2016). A version of this article was delivered at a conference on solitary confinement held at University of Pittsburgh Law School, April 15 and 16, 2016. 1 Charles Dickens, American Notes (London: Chapman & Hall, 1842). 2 In re Medley, 134 U.S. 160 (1890). 3 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), December 10, 1984, entered into force June 29, 1987, 1465 U.N.T.S. 85, art. 1.

Juan E. Méndez. Torture, Solitary Confinement, and International Law In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0007

118  Torture, Solitary Confinement segregation of inmates, for specified reasons and with due process guarantees. But it has become increasingly evident that a major effort needs to be made to regulate its use so that, in law and in fact, it does not cross the line into torture.

Cases of solitary confinement during my time as Special Rapporteur on Torture I started my role as UN Special Rapporteur on Torture on November 1, 2010, and one of the very first matters that came to my attention was the case of Bradley (now Chelsea) Manning. The first thing that occurred to me was: Why is a person who has not even been charged yet with a crime spending so much time in solitary confinement? I applied the case complaint mechanism of the Special Procedures to address the US government and inquire about Private Manning’s situation. In the process I held meetings at the State Department and the Pentagon, and I was told at that time Manning was not being subjected to solitary confinement, but to a regime that the Marine Brig at Quantico called “prevention of harm,” although the hours spent in isolation each day were no different from the internationally accepted definition of solitary confinement.4 I inquired as to whether he had asked for any kind of special protection, and the answer was that he had not. I was also told that the prison conditions imposed on him were related to the seriousness of the crime he was suspected of committing, even though the investigation was still under way and no decision had yet been made to prosecute him. In the end, when he was transferred to Fort Leavenworth he was no longer placed in solitary confinement. A few months later her defense attorney made a motion to have me testify at her court martial proceedings, but that motion was denied. It would have been an opportunity to say that the eight months spent in solitary confinement should mitigate the punishment that Chelsea Manning received. Unfortunately, that was not done in that case. As a political prisoner in Argentina in the mid-​1970s I had known the isolation cells that were used for disciplinary punishment. During the military dictatorship, isolation also brought with it severe physical mistreatment. I spent only three days in those cells once, and I was not beaten. But long hours in a bare, windowless cell, with nothing to read and no contact with other human beings except to receive meals, persuaded me of the severe psychological trauma that a long-​term period spent there could cause. In the second year of my mandate as Special Rapporteur I had the visit of a gentleman whose son, Fahad Hashmi, was in the federal prison called ADX in 4 Istanbul Statement on the Use and Effects of Solitary Confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium, Istanbul.

Juan E. Méndez  119 Florence, Colorado, accused of terrorist activities. The young man, a US citizen, had spent some time in UK prisons awaiting extradition, where his father had no complaints about treatment. As soon as he arrived in the United States, however, he was placed under solitary confinement, even as a pre-​trial detainee, at the Metropolitan Correctional Center (MCC) in New York, without any reference to his behavior in prison, and solely on the grounds that he was accused of terrorist activity. I should note that the charges of aiding and abetting terrorism were based on the allegation that he had lent his computer to somebody who was then found to have engaged in terrorist activities. After about three years of pre-​ trial solitary confinement he pleaded guilty. Then he was moved to ADX now as a convict, and he was again subjected to what both MCC and ADX call “special administrative measures” (SAMs). The conditions are essentially the same. He is still in solitary confinement, now serving a fifteen-​year prison sentence. I addressed the US government on that case and eventually I published a comment. One of my findings was that even the plea bargain was coerced through the indefinite solitary confinement that preceded it, and therefore the case should be reviewed. Around that time, I had the pleasure also of meeting Ms. Theresa Shoats. She told me about the case of her father, Russell Maroon Shoats. I also sent a communication on that case to the US government and eventually published my views after the government sent back a long list of reasons why his behavior of twenty or twenty-​five years previously justified his being kept in prolonged solitary confinement for decades. I had the honor finally of meeting Mr. Shoats when I interviewed him for purposes of being an expert witness in the lawsuit that Bret Grote was litigating on his behalf.5 My Rapporteurship received requests for communications about LGBTI persons in immigration detention who were isolated, supposedly for their own protection. I exchanged notes with the US government about that practice and also published my conclusions. Since then I have filed amicus curiae briefs in a variety of situations, like a Supreme Court petition challenging the prison regulations in Brazil that allow for prolonged solitary confinement of inmates as a disciplinary measure.6 My mandate filed a brief amicus curiae at the European Court of Human Rights in the Babar Ahmed v. UK case, about whether the UK could extradite a suspected terrorist to the United States without violating the prohibition to send any person to a place where he or she could be subjected to torture.7 Unfortunately, the court did not agree with me that the conditions at ADX 5 Under the terms of a consent decree that Bret Grote obtained for his client, Mr. Shoats is no longer in solitary and he has received compensation for the many years he was wrongfully subjected to it. 6 As of this writing the case is still pending. 7 CAT, Article 3; European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, entered into force September 3, 1953, 312 U.N.T.S. 221, art. 3.

120  Torture, Solitary Confinement to which people accused of terrorism in the United States would be subjected would violate Article 3 of the European Convention on Human Rights if the United Kingdom extradited Babar Ahmed to the United States to be charged with terrorism.8

UN prison visits and the United States There have been more cases in which the Rapporteurship has intervened on matters of solitary confinement in many other countries. In addition, when the Rapporteur conducts a mission to a country to look into torture and ill-​ treatment, he must visit as many detention centers as possible, as the mandate includes conditions of detention. On every country visit that I have made during my term, I have inspected the isolation cells of every prison visited.9 By the time I get there, those cells are generally empty, but the mission takes note of the physical conditions and the regulations that allow for their use, and we do talk to persons who have been in isolation as we interview prisoners under conditions of unmonitored conversations. I am participating as an expert witness on international law on three challenges in Canada against the federal regulations on solitary confinement.10 Unfortunately, new matters regarding isolation are brought to my attention almost every day. I received information about a case of a woman who warned her jailers in Spain that she would commit suicide unless she was taken out of solitary confinement, and since the prison authorities were indifferent to her state of health, she did commit suicide. Now her daughter is asking for the Rapporteurship’s intervention with the Spanish authorities. I have tried to visit Guantanamo. My predecessor, Manfred Nowak, and three other mandates had requested an invitation in 2004 and had to decline it because of the terms of reference offered. Eight years later I was given the same terms: essentially an invitation to receive a “briefing” by the authorities of Guantanamo; to visit some parts of the prison but not all of them; and with the specific prohibition of talking to any inmate there. Had I accepted those restrictive conditions from 8 ECHR, Babar Ahmad and others v.  United Kingdom, Chamber decision, ECHR 146 (2012), April 10, 2012. 9 Countries visited during my term are Tunisia, Kyrgisztan, Tajikistan, Morocco and Western Sahara, Ghana, Uruguay, Mexico, Georgia, The Gambia, Brazil, Mauritania, and Sri Lanka. The UN has published my final reports of each of those visits (see http://​www.ohchr.org). I also conducted follow-​up visits to Kyrgisztan, Tajikistan, Tunisia, and Ghana. 10 BCCL and JHSC v. AG, at Superior Court of British Columbia; Raddock v. AG, at Superior Court of Ontario; and Brazeau v. AG, at Superior Court of Ontario. On the first two there are already lower court decisions ruling that federal prison regulations regarding solitary confinement are unconstitutional. In Raddock, the Federal Court of Appeals for Ontario has upheld the lower court decision.

Juan E. Méndez  121 the United States, the visits by the Rapporteurship to the Russian Federation, to Iran, or to any other place would be similarly constrained and therefore completely useless. I declined the invitation to Guantanamo, but I also insisted on being invited under terms that I could accept—​terms, by the way, that have been set by the Human Rights Council for all country visits by all Special Procedures.11 With regard to the United States, I tried for five years to visit prisons in the mainland, specifically to focus on solitary confinement. Unfortunately, I never received an invitation I could accept. There was, however, a very lengthy and sometimes endless discussion of terms of reference for such a mission. I  was invited to ADX with reasonable terms:  ability to talk to anybody I  wanted without supervision, except for those people accused of terrorism or convicted of terrorism. I was also invited to Rikers Island in New York City, apparently with reasonable terms as well. But my request to visit prisons in California, Louisiana (in particular, the Angola Prison), Illinois, Pennsylvania, and New York State were all declined, which put me in the situation of having to make this very difficult decision: Do I accept these extraordinary restrictions and visit some people for whom my presence could be helpful? Or do I stick to the rules that all states, all countries have agreed to in principle for visits by the Special Rapporteur? In the end, I chose not to accept invitations to only a few selected places, because it would set a dangerous precedent that many other countries would use to deny me, and my successors as Special Rapporteurs, access to the detention centers that most need our visits. I had hoped that if I continued to insist, not letting the government deny me a visit, but also not being the Rapporteur who closes the door on a mission to the United States, perhaps my successor may be able one day to visit Guantanamo and prisons in the mainland.

The UN report on solitary confinement The report I delivered to the UN General Assembly in October 2011 was my first thematic report after my appointment and I chose to develop the topic of solitary confinement as a violation of the prohibition of torture and of cruel, inhuman, or degrading treatment or punishment.12 Thematic reports are not meant to be the last word on the status of an issue in international law. They are based on international law and Special Rapporteurs try to argue to the best of our ability about how international law should be interpreted, but they are meant to generate a discussion, not to settle issues. I had the good fortune that that report was immediately picked up by so many in the struggle against solitary confinement,

11 12

At the end of my term, October 31, 2016, such an invitation was not forthcoming. A/​66/​268, dated 5 August 2011.

122  Torture, Solitary Confinement that it seems to have made a contribution to that struggle. The question that the report addresses is whether and under what circumstances solitary confinement violates the prohibition on cruel, inhuman, and degrading treatment, or the prohibition on torture. Both prohibitions, by the way, are absolute. They do not recognize any emergency situation as giving rise to a potential derogation or suspension of the illegality of torture or of mistreatment. International law does not recognize any circumstance in which a state can evade the prohibition. The report cites the definition of solitary confinement from the 2007 Istanbul Statement on Solitary Confinement.13 Because so many countries use different terminologies for a similar phenomenon, the Istanbul Statement defines solitary confinement, no matter what it is called, as any time spent in detention where the inmate is alone in a cell from twenty-​two to twenty-​four hours on any given day. The report acknowledges that there are some legitimate uses for isolation, such as security reasons, protection of the inmate or of others, and management of the security of the prison establishment itself. Those purposes could justify—​under some circumstances—​segregating prisoners from the general population. But the report makes the case that isolation for these reasons should be short-​term, for appropriate reasons, and proportional to the perceived risk. In the words of the Inter-​American Commission on Human Rights, “Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time, when it is evident that it is necessary to ensure legitimate interests relating to the institution’s internal security, and to protect fundamental rights, such as the right to life and physical integrity of persons deprived of liberty or the personnel. In all cases, the disposition of solitary confinement shall be authorized by the competent authority and shall be subject to judicial control, since its prolonged, inappropriate or unnecessary use would amount to acts of torture or cruel, inhuman or degrading treatment or punishment.”14 In other words, solitary confinement should be strictly a measure of last resort. And even in such short-​term uses, solitary confinement still requires a minimum of due process guarantees and medical protections; the report we submitted to the General Assembly in 2011 spells out what those safeguards should be. Significantly, we argued that there should be an opportunity for judicial review of decisions to place people in solitary confinement. Extreme isolation causes the individual to experiment pain and suffering of a mental or psychological nature.15 At what point does the lack of human contact makes that pain and suffering severe enough to qualify as ill-​treatment or

13 See note 4. 14 OEA/​Ser.L/​V/​II.121, Doc. 38, March 13, 2008. 15 In addition to the scientific evidence presented in other chapters of this volume, see Razvyazkin v. Russia, EuCtHR (2012) and Velasquez Rodriguez v. Honduras, IACtHR (1988).

Juan E. Méndez  123 torture? It depends most of all on the degree of the harm inflicted on the person. It is possible, however, to say that isolation of a certain duration objectively produces harm on every person, regardless of his or her capacity to absorb the pain of deprivation of human contact. The October 2011 report called for a complete ban on indefinite solitary confinement, because research has confirmed with scientific certainty what intuitively we all know: that not knowing when the ordeal is going to end only adds anguish to one’s anxiety or worse. The report also called for a ban on prolonged solitary confinement, which it defined as any period of isolation beyond fifteen days. I have acknowledged that such a cut-​off term is somewhat arbitrary because the point in which the suffering becomes severe enough to cross the line into cruel, inhuman, or degrading treatment, or the line separating ill-​treatment from torture, varies with each individual. The fifteen days’ maximum nevertheless does have a scientific basis, because the literature I consulted shows that serious ill effects can set in already after a couple of weeks. An interesting dilemma is presented by the many different conditions of isolation that apply in a great variety of regimes. In some countries, particularly where solitary confinement is used as a disciplinary sanction, the person spends twenty-​four hours each day alone in a cell without any amenity of any sort: no conversations, no radio, no television, no reading, no writing; the food is just passed on through a small window and the cell does not have bedding or a toilet or a wash basin other than a hole on the ground. That was my memory of my solitary confinement, although fortunately my isolation lasted only three days. In other settings and countries, solitary confinement is somewhat mitigated by allowing the inmate—​in varying degrees—​to have reading or writing material, radio or television. In Scandinavian countries, where extreme isolation is applied during pre-​trial detention and can last many months, guards are instructed to “chat” with inmates for some minutes at least once a day. What matters is that the prisoner spends twenty-​two to twenty-​four hours each without “meaningful social contact.” Although this term is not defined, it is clear that social or human contact is meaningful only if it is sustained social interaction that is not incidental contact with corrections staff. Sharon Shalev has written that “it cannot be argued that regular contact with custodial staff whilst being fed, restrained and escorted constitutes meaningful contact.”16 There may be a debate as to whether the maximum time limit after which solitary is considered prolonged should be different depending on mitigating circumstances. So far, however, I have not seen a proposal to extend legitimate uses of isolation beyond fifteen days if amenities or mitigation are present. And I  have no doubt that fifteen days is a reasonable landmark after which pain 16 Sharon Shalev, A Sourcebook on Solitary Confinement (London:  Mannheim Centre for Criminology/​LSE,  2008).

124  Torture, Solitary Confinement and suffering increases, no matter what conditions are present. Regardless of circumstances, there should always be a maximum, a limit to permissible isolation, and that maximum should be counted in days, not weeks, not even months, and certainly not years. Amenities and mitigation factors should definitely be encouraged, but with or without them the maximum length of legitimate isolation must not exceed fifteen days. Finally, the October 2011 report called for a complete ban on the use of solitary confinement of any duration on children, persons with any mental disability, even a temporary one, and women who are pregnant or breastfeeding.

The Mandela Rules All of the above-​mentioned standards have now been incorporated into the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).17 This non-​binding but highly influential and authoritative instrument has, since 1957, been considered the ultimate standard on prison regimes beyond which conditions of detention constitute cruel, inhuman, or degrading treatment, or torture. It was recently reviewed and updated, and readopted by the UN General Assembly in December 2015, when the new name of the Nelson Mandela Rules was also adopted. I had the privilege of participating in the negotiations and drafting sessions that culminated in the new rules.18 The question whether indefinite or prolonged solitary confinement is cruel, inhuman, and degrading treatment or punishment, or torture, has now been settled through this soft-​law instrument. Indefinite or prolonged isolation and isolation lasting only hours for children, persons with mental disabilities, and pregnant or breastfeeding women is cruel, inhuman, or degrading treatment or punishment in terms of Article 16 of the UN Convention Against Torture.19 Whether it can also constitute torture depends on two factors: One is that the pain and suffering is intentionally inflicted (for treatment covered by Art. 16 UNCAT specific intent is not required, so ill-​treatment by negligence is still absolutely prohibited); the other factor depends on the severity of the pain and suffering, torture being a more serious form of cruel, inhuman, or degrading treatment (CIDT). The difference in degree of severity depends on both objective and subjective factors. In the matter of solitary confinement intent is always 17 The United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), U.N. G.A. Res. 70/​175, adopted December 17, 2015. See especially Rules 36, 37(d), 38, 39, 41, 42, 43(A) and (b), 44, 45, and 46. 18 A/​68/​295, dated 9 August 2013, delivered to the U.N. G.A. on Oct. 22, 2013. 19 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, entered into force June 29, 1987.

Juan E. Méndez  125 present because there is always a state agent that decides to place someone in isolation. A decision to maintain that isolation beyond fifteen days, or to apply any term of isolation on the protected categories of inmates, is a knowing and deliberate action. The point at which such conduct becomes torture depends on the breach of the time limits but also on the specific subjective way in which the victim suffers the solitary confinement. The objective test is the violation of the time limits; the subjective test is the harm itself, which will vary with each victim. Manfred Nowak is right, of course, that a case-​by-​case analysis is necessary.20 Once we are beyond a certain length of duration of solitary confinement, the case-​by-​case analysis helps us determine whether it is CIDT or torture, but it is undoubtedly ill-​treatment when it surpasses a certain time. As one of the plaintiffs in the Ashker v. Brown case told me: “We have been here many, many years and some of us are coping. But the fact that we are coping does not mean that we are not suffering.”21 That insight defines the issue and defeats the argument that we sometimes hear from corrections authorities, that solitary confinement cannot be torture or ill treatment because isolated prisoners are monitored and removed from it if they show signs of psychiatric problems. In the same way in which someone who has been physically tortured, water-​boarded, beaten up or subjected to electrocution does not bear any mark on his body after a few days, hopefully over the years ceases to have nightmares, and eventually leads a productive life, that does not mean that he was not tortured. That is what happened to me, and I cannot let John Yoo or John Bybee or Alberto Gonzalez tell me that I was not tortured, because I did not experience organ failure or death.22 By the same token, it is the objective infliction of this severe pain and suffering of deprivation of significant human contact for an indefinite or prolonged term that defines whether the state has violated the rule against CIDT and in extreme cases against torture as well. The Mandela Rules have given us a great boost, and here in the United States we are having quite a bit of momentum as well towards abolition. The fact that three justices on the US Supreme Court have invited some discussion of solitary confinement is very encouraging. Former President Barack Obama visited a prison, a first-​ever occurrence for a president in the history of the United States, and he reflected on solitary confinement as an aspect of corrections policy in need of reform. Litigation efforts are bearing encouraging results, and some state legislatures are contemplating action to regulate solitary confinement. All of that should give us hope. But let us not forget that those things do not solve our

20 See Nowak, Chapter 3, this volume. 21 Interview, December 9, 2014, Pelican Bay prison, Crescent City, California. 22 Memorandum of the Office of the Assistant Attorney General of the United States to Alberto R. Gonzalez, Counsel to the President of the United States, August 1, 2002 (“The Torture Memos”).

126  Torture, Solitary Confinement problem, do not fix the situation. As Craig Haney writes in this volume, there is still a lot of work to do.23 We have solid scientific evidence to bring to bear and inspiring testimony from survivors that we can take home and reinvigorate our commitment to the fight.

Bibliography Dickens, Charles. American Notes. London: Chapman & Hall, 1842. In re Medley, 134 U.S. 160 (1890). Shalev, Sharon. A Sourcebook on Solitary Confinement. London: Mannheim Centre for Criminology/​LSE,  2008.



23

See Haney, Chapter 8, this volume.

PART II

MIND, B ODY, A ND S OU L— ​T HE HA R MS A N D E X PE R I E NC E OF SOL ITA RY C ON F I NE M E NT

8

Solitary Confinement, Loneliness, and Psychological Harm Craig Haney*

The adverse effects of being housed in solitary confinement are well-​documented in a robust scientific literature that spans many decades and includes data collected by researchers and clinicians from diverse backgrounds and perspectives. The findings are highly consistent and, with the exception of a few methodologically compromised, outlier studies, confirm that isolated prisoners experience often severe negative psychological effects and are at a significant risk of serious harm. We now know that, as the chapters from Hawkley and Williams and Ahalt in this volume make clear, there are adverse physical health effects as well. These empirical findings are intellectually coherent and grounded in sound psychological theory. Solitary confinement is a special category of social exclusion, whose harmfulness has been carefully studied in a wide range of non-​prison contexts. Nowhere in society is social exclusion practiced in such a draconian way as in solitary confinement, where it entails the rigidly enforced separation from others, almost always pejoratively and very frequently punitively imposed, and typically accompanied by a host of other material and sensory deprivations (including the loss of property, access to meaningful activity and programming, and positive environmental stimulation). From a psychological perspective, “solitary confinement” is defined less by the exact amount of time during which a prisoner is confined to his or her cell than by the degree to which he or she is deprived of normal, direct, meaningful social contact and access to positive environmental stimulation and activity. Thus, even a considerable amount of out-​of-​cell time during which a prisoner was simultaneously denied normal, meaningful, direct social contact and positive stimulation or programming would still constitute a painful and potentially damaging form of solitary confinement.1 * Distinguished Professor of Psychology at the University of California, Santa Cruz. Professor Haney held the UC Presidential Chair from 2015 to 2018. Professor Haney has served as an expert witness in several landmark cases addressing the constitutional rights of prisoners, including Toussaint v. McCarthy (1983), Madrid v. Gomez (1995), Coleman v. Gomez (1995), and Ruiz v. Johnson (1999), Brown v. Plata (2011), and Ashker v. Brown (2015). 1 Especially in a prison context, the terms “normal” and “direct” mean that the contact itself is not mediated or obstructed by bars, restraints, security glass or screens and the like. And “meaningful” Craig Haney. Solitary Confinement, Loneliness, and Psychological Harm In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0008

130  Solitary Confinement, Loneliness In this chapter I briefly review the scientific literature on harmful effects of solitary confinement, connect it more directly to social psychological research on the adverse effects of social exclusion and isolation, and discuss findings from a recent study of loneliness among long-​term isolated prisoners.

The harmfulness of solitary confinement Solitary confinement was the modal form of imprisonment in the eighteenth and nineteenth centuries in the United States and throughout much of the world. Prisoners were placed in isolated cells to “do penance” and to prevent them from contaminating each other with the “moral disease” of criminality.2 But by 1890, solitary confinement was widely recognized as a failed experiment in the United States and had fallen into disuse. Its effects were regarded as “too severe,” in part because it put “a considerable number of prisoners . . . into a semi-​fatuous condition, from which it was next to impossible to arouse them” and even the survivors of solitary confinement “in most cases did not recover sufficient mental activity to be of subsequent service to the community.”3 The widespread return of this practice in the United States that began in the 1970s can only be understood as an expedient response to an unprecedented, unexpected, and potentially uncontrollable influx of prisoners that occurred during the “era of mass incarceration,” one in which prison officials had few if any attractive rehabilitative tools left at their disposal with which to maintain order. Yet there was no evidence available in the 1970s or beyond to suggest that solitary confinement was likely to stem this potentially unwieldy tide, nor that it was any less harmful to prisoners in the twentieth century than it had proven to be in the nineteenth. In fact, the increased use of solitary confinement in the United States over the last several decades occurred despite a large and growing literature on the significant risk that the experience posed for the mental health of prisoners. The long-​ term absence of meaningful human contact and social interaction, the enforced idleness and inactivity, the oppressive security and surveillance procedures, and the accompanying hardware and other paraphernalia that are brought or built

refers to voluntary contact that permits purposeful activities of common interest or consequence that takes place in the course of genuine social interaction and engagement with others. 2 For example, see D. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971); and D. Rothman, Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (Boston: Little, Brown, 1980). 3 In re Medley, 134 U.S. 160, 168 (1890). Regarding the effects of nineteenth-​century solitary confinement, see also Smith, Chapter 2, this volume.

Craig Haney  131 into these units combine to create harsh, dehumanizing, and deprived conditions of confinement. These conditions predictably can impair the psychological functioning of the prisoners who are subjected to them. For some prisoners, these impairments can be permanent and life-​threatening. To make the adverse psychological consequences of solitary confinement more understandable, it is worth describing at the outset the kind of conditions to which isolated prisoners are subjected. The exact conditions can vary in significant ways, especially internationally. In most such places in the United States, prisoners are forced to live in small, sparse cells that they almost never leave. The cells vary in dimension but are generally no more than between sixty to eighty square feet in dimension—​about the size of a king-​sized bed or parking space—​ an area where prisoners must eat, sleep, and defecate. Regular opportunities for out-​of-​cell time are commonly restricted to an average of somewhere between an hour or two a day when, weather and staffing permitting, prisoners are allowed to go to outdoor “yard”—​typically, an individual, cell-​sized recreation cage that is fenced-​in (including overhead) with a concrete floor. Most have no exercise equipment in them; others are limited to “pull up” bars, but rarely anything more. Prisoners are also allowed out-​of-​cell time to shower, for brief periods (ten or so minutes) several days a week. In a very few units, showers are built into the cells, which eliminates the opportunity for this brief, additional out-​of-​cell time. Most prisoners in solitary confinement have little or no access to meaningful programs (except what they can accomplish on their own, while confined inside their cells) and typically no group activity of any kind is permitted. Aside from the very limited number of solitary confinement units that double-​cell (confining two persons around the clock in the same small cell), prisoners have no regular, meaningful contact with one another. In a number of units there are blanket prohibitions against talking to one another (although they are difficult to enforce). This means that the only regular, direct interactions prisoners have with another human being are limited to their routinized and superficial contacts with correctional staff, consisting of perfunctory bureaucratic exchanges (e.g., paperwork, feeding, being placed in restraints whenever they are moved elsewhere in the prison). The physical design of some of the more modern units minimizes even these contacts through the use of cameras, intercoms, and electronic locking mechanisms that allow staff to monitor prisoners and control their movement from a distance (typically by staff who stay inside centralized “control booths” rather than directly interacting with the prisoners). In the United States, it is not uncommon for solitary confinement facilities to be located in remote areas, distant from the population centers from which many of the prisoners come. This form of geographical isolation adds another dimension to the experience for prisoners, and minimizes visiting from the outside world. Whether they are geographically isolated or not, most units restrict

132  Solitary Confinement, Loneliness the number and length of visits. In the United States, prisoners in solitary confinement are often restricted to visiting on a “non-​contact” basis—​most often through glass partitions and over phones. This means that during their time in solitary confinement, prisoners are denied the opportunity to ever physically touch another human being with affection. Phone calls are also typically greatly restricted and in some units prohibited entirely. This means that some isolated prisoners will never hear the voices of those loved ones who are unable to visit them.4 There is no other place on earth where persons are so completely and involuntarily isolated from one another. Not surprisingly, this kind of severe isolation places prisoners at significant risk of serious psychological harm. Our understanding of the nature of this harm dates back more than a century and, as I noted at the outset, it has continued to be well-​documented in modern times. For example, mental health and correctional staff who have worked in disciplinary segregation and isolation units have reported observing a range of problematic symptoms manifested by the prisoners confined in these places. The authors of a 1960s study of solitary confinement summarized their findings by concluding that “[e]‌xcessive deprivation of liberty, here defined as near complete confinement to the cell, results in deep emotional disturbances.”5 A decade later, psychologist Hans Toch studied prisoners “in crisis” in New York State correctional facilities and found that, in addition to “isolation panic,” many prisoners in solitary confinement suffered rage, loss of control and breakdowns, psychological regression, a build-​up of physiological and psychic tension that led to incidents of self-​mutilation.6 More recent studies have identified numerous other negative symptoms from which prisoners in solitary confinement disproportionately

4 In those solitary confinement units where prisoners are denied phone calls, the one exception is typically a “bereavement call,” permitted on the occasion of a close relative’s death. Some prisoners whom I have interviewed in solitary confinement have described the unsettling experience of being escorted out of their housing unit by a counselor to make or receive such a painful call, only to discover that they did not know to whom they were speaking, or that no one at the other end of the line could recognize their voice either or believed it was really them, because it had been so many years since they had heard each other’s voices. For those who had gone into prison and into solitary confinement as teenagers or young men, their voices had changed over the course of the decade or more that had passed since anyone in the outside world had spoken to them. They had grown up and grown old, isolated from the world and from their family, and they now had an older man’s voice that no one in their family recognized or associated with them. 5 B. Cormier and P. Williams, “Excessive Deprivation of Liberty,” Canadian Psychiatric Association Journal 11 (1966): 470–​84, 484. For other early studies of solitary confinement, see P. Gendreau et al., “Changes in EEG Alpha Frequency and Evoked Response Latency During Solitary Confinement,” Journal of Abnormal Psychology 79 (1972): 54–​59; G. Scott and P. Gendreau, “Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison,” Canadian Psychiatric Association Journal 12 (1969):  337–​41; R. Walters, J. Callagan, and A. Newman, “Effect of Solitary Confinement on Prisoners,” American Journal of Psychiatry 119 (1963): 771–​73. 6 H. Toch, Men in Crisis:  Human Breakdowns in Prisons (Chicago: Aldine Publishing Co., 1975), 54.

Craig Haney  133 suffer. They include: appetite and sleep disturbances; anxiety, panic, and a sense of impending emotional breakdown; hypersensitivity, irritability, aggression, and rage; ruminations, paranoia, and hallucinations; cognitive dysfunction; loss of emotional control, mood swings, hopelessness, and depression; social withdrawal; and self harm and suicidal ideation and behavior.7 I mentioned at the outset that these findings were “robust,” because despite the diversity of research disciplines, methods, locales, and time periods, with very few “outlier” exceptions, they have reached essentially the same theoretically sound conclusions. Thus the research findings obtained in the United States are consistent with and buttressed by a large international literature.8 7 These many studies have been carefully reviewed in a number of publications. For example, see K. Cloyes et  al., “Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample,” Criminal Justice and Behavior 33 (2006):  760–​81; S. Grassian, “Psychiatric Effects of Solitary Confinement,” Washington University Journal of Law & Policy 22 (2006): 325–​83; C. Haney, “Restricting the Use of Solitary Confinement,” Annual Review of Criminology 1 (2018): 285–​310; C. Haney and M. Lynch, “Regulating Prisons of the Future: The Psychological Consequences of Solitary and Supermax Confinement,” New York Review of Law & Social Change 23 (1997): 477–​570; and P. Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature,” in Crime and Justice, ed. Michael Tonry (Chicago:  University of Chicago Press, 2006), 441–​528. There are a few outlier studies that purport to find few if any negative effects. For a detailed discussion of the serious methodological flaws that plague these studies, see C. Haney, “The Psychological Effects of Solitary Confinement: A Systematic Critique,” Crime and Justice 47 (2018): 365–​416. 8 For example, see H. Barte, “L’Isolement Carceral,” Perspectives Psychiatriques 28 (1989):  252. Barte analyzed what he called the “psychopathogenic” effects of solitary confinement in French prisons and concluded that prisoners placed there for extended periods of time could become schizophrenic instead of receptive to social rehabilitation. He argued that the practice was unjustifiable, counterproductive, and “a denial of the bonds that unite humankind.” In addition, see H. Andersen et al., “A Longitudinal Study of Prisoners on Remand: Repeated Measures of Psychopathology in the Initial Phase of Solitary versus Nonsolitary Confinement,” International Journal of Law and Psychiatry 26 (2003): 165–​77; D. Sestoft et al., “Impact of Solitary Confinement on Hospitalization Among Danish Prisoners in Custody,” International Journal of Law and Psychiatry 21, no. 1 (1998): 99–​108; R. Volkart, “Einzelhaft: Eine Literaturubersicht (Solitary confinement: A literature survey),” Psychologie -​Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen 42 (1983): 1–​ 24 (reviewing the empirical and theoretical literature on the negative effects of solitary confinement); R. Volkart et al., “Eine Kontrollierte Untersuchung uber Psychopathologische Effekte der Einzelhaft (A controlled investigation on psychopathological effects of solitary confinement),” Psychologie -​ Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen 42 (1983): 25–​46 (when prisoners in “normal” conditions of confinement were compared to those in solitary confinement, the latter were found to display considerably more psychopathological symptoms that included heightened feelings of anxiety, emotional hypersensitivity, ideas of persecution, and thought disorders); R. Volkart et al., “Einzelhaft als Risikofaktor fur Psychiatrische Hospitalisierung (Solitary confinement as a risk for psychiatric hospitalization),” Psychiatria Clinica 16 (1983): 365–​77 (finding that prisoners who were hospitalized in a psychiatric clinic included a disproportionate number who had been kept in solitary confinement); and B. Waligora, “Funkcjonowanie Czlowieka W Warunkach Izolacji Wieziennej (How men function in conditions of penitentiary isolation),” Seria Psychologia I Pedagogika NR 34 (1974) (concluding that so-​called “pejorative isolation” of the sort that occurs in prison strengthens “the asocial features in the criminal’s personality thus becoming an essential cause of difficulties and failures in the process of his resocialization”). See also I. Koch, “Mental and Social Sequelae of Isolation: The Evidence of Deprivation Experiments and of Pretrial Detention in Denmark,” in The Expansion of European Prison Systems, Working Papers in European Criminology, ed. Bill Rolston and Mike Tomlinson, no. 7 (1986), 119(finding evidence of “acute isolation syndrome” among detainees that occurred after only a few days in isolation and included “problems of concentration, restlessness,

134  Solitary Confinement, Loneliness Not every isolated prisoner will suffer all of the previously described adverse psychological reactions to the severe conditions of such confinement. But the overall nature and magnitude of the negative psychological reactions that I have documented in my own research and that have been reported by others in the scientific literature underscore the stressfulness and painfulness of this kind of confinement, the lengths to which prisoners must go to adapt and adjust to it, and the risk of harm that it creates. The potentially devastating effects of these conditions are reflected in the characteristically high numbers of suicide deaths, and incidents of self-​harm and self-​mutilation that occur in many of these units.

The Pelican Bay studies: The effects of severe and long-​term solitary confinement Although these adverse symptoms are not universally experienced, to the same degree, by literally everyone in solitary confinement, their prevalence (that is, the percentage of prisoners in the units who suffer from these and related signs of psychological distress) appears to be extremely high in some facilities. For example, an early study of mine done in an especially harsh solitary confinement unit—​the Security Housing Unit (SHU) at the Pelican Bay State Prison in California—​systematically assessed the prevalence of symptoms of psychological stress, trauma, and isolation-​related psychopathology.9 Using structured interviews with a randomly selected, representative sample of one hundred prisoners who had been housed in isolation at the facility for as long as several years, I  found that virtually every symptom of psychological stress and trauma but one (fainting) was suffered by more than half of the prisoners whom

failure of memory, sleeping problems and impaired sense of time an ability to follow the rhythm of day and night” (at 124). If the isolated confinement persisted—​“a few weeks” or more—​there was the possibility that detainees would develop “chronic isolation syndrome,” including intensified difficulties with memory and concentration, “inexplicable fatigue,” a “distinct emotional lability” that can include “fits of rage,” hallucinations, and the “extremely common” belief among isolated prisoners that “they have gone or are going mad” (at 125)). See also M. Bauer et al., “Long-​Term Mental Sequelae of Political Imprisonment in East Germany,” Journal of Nervous & Mental Disease 181 (1993): 257–​62 (reporting on the serious and persistent psychiatric symptoms suffered by a group of former East German political prisoners who sought mental health treatment upon release and whose adverse conditions of confinement had included punitive isolation). 9 C. Haney, “Mental Health Issues in Long-​Term Solitary and ‘Supermax,’” Confinement, Crime & Delinquency 49 (2003):  124–​ 56. The structured interviews included several demographic questions, brief social and institutional histories, and a systematic symptom assessment consisting of twenty-​five specific items, based in part on the Omnibus Stress Index [D. Jones, The Health Risks of Imprisonment (Lexington, MA: Lexington Books, 1976)] and on ones similar to those used in S. Brodsky and F. Scogin, “Inmates in Protective Custody: First Data on Emotional Effects,” Forensic Reports 1, no. 4 (1988): 267–​89.

Craig Haney  135 I assessed, many of the symptoms were experienced by two-​thirds or more of the prisoners, and some by nearly everyone. Well over half of the prisoners in the sample reported a constellation of symptoms—​headaches, trembling, sweaty palms, and heart palpitations—​that are known to be distress-​related. In addition, high numbers of prisoners reported suffering from symptoms of isolation-​related pathology. Thus, nearly all of the Pelican Bay SHU prisoners acknowledged ruminations or intrusive thoughts, oversensitivity to external stimuli, irrational anger and irritability, difficulties with attention and often with memory, and a tendency to socially withdraw. Almost as many prisoners reported a constellation of symptoms indicative of mood or emotional disorders—​ emotional flatness or losing the ability to feel, swings in emotional response, and feelings of depression or sadness that did not go away. Finally, sizable minorities of the prisoners reported symptoms that are typically associated with more extreme forms of psychopathology—​hallucinations, perceptual distortions, and thoughts of suicide. In a subsequent study that I conducted at the same facility two decades later I found that very similar symptom patterns were not only equally or more prevalent among a sample of extremely long-​term isolated prisoners but also were experienced at much higher levels and greater intensities compared to a sample of long-​term general population prisoners. Using the same structured interview and systematic assessment format as before, this study compared the prevalence and intensity of symptoms of psychological stress, trauma, and isolation-​ related psychopathology in a randomly selected sample (N=41) of long-​term SHU prisoners (i.e., who had spent ten years or more in continuous solitary confinement at the facility) with a randomly selected sample (N=25) of long-​term general population (“GP”) prisoners (i.e., who were housed in the adjoining maximum security prison and had spent ten years or more of continuous imprisonment).10 No prisoner in either sample was suffering from diagnosed mental health problems at the time the study was conducted.11 The comparison between the groups represented an especially stringent test of the effects of long-​term solitary confinement. For one, the conditions of confinement in the maximum security prison from which the GP prisoners were 10 Access to both groups was permitted pursuant to a court order in Ashker v.  Governor of California (2014). I am grateful to attorneys from the Center for Constitutional Rights, the California Attorney General’s Office, and staff members from the California Department of Corrections and Rehabilitation for their assistance and cooperation in facilitating data collection. All of the prisoners in both groups were otherwise mentally healthy; that is, no one from either group was currently on the prison system’s mental health caseload. 11 Largely as a result of a federal court decision, Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), no prisoner on the California Department of Corrections and Rehabilitation’s mental health caseload was permitted to be housed in the Pelican Bay SHU. To ensure comparability of the samples in this respect, no long-​term GP prisoner currently on the mental health caseload was included in the study.

136  Solitary Confinement, Loneliness selected were severe, in some ways similar to the kinds of harsh conditions that exist in some isolation units in other prison systems. For example, the GP prisoners (virtually all of whom were double-​celled) were “cell fed” (i.e., they ate all of their meals in their cells rather than in a common dining hall), had very limited “out-​of-​cell time,” and could obtain access to only a restricted number of “jobs” (e.g., working in the kitchen, barber shop, or serving as a tier tender) and to a single educational class. Because the GP facility was located in the same geographically remote location as the solitary confinement unit, GP prisoners, like their SHU counterparts, also tended to have relatively few visits. In fact, the GP prisoners were not reticent about voicing their displeasure over their current conditions of confinement; a number of them volunteered that the general population facility where they were currently housed was by far “the worst” one they had ever been in. An additional factor that added to the stringency of this comparison was the fact that many GP prisoners had spent long periods (some, years) confined in one or another solitary confinement unit before their current GP housing assignment. For some of them, this included previously having spent time in the SHU unit that was under study. As an aside, many of the GP prisoners I interviewed acknowledged the lasting after-​effects of their time in isolation, attributing at least some of their current problems and symptoms to the time that they had spent in solitary confinement. They described their struggle to overcome these effects once released from isolation and acknowledged varying degrees of success in doing so. The GP prisoners who had been in solitary confinement also reported that the discomfort they felt in the presences of others had not necessarily dissipated quickly; they felt that it currently interfered with some of their social relations and left them “lonely” in ways that approximated the feelings of the prisoners who were still in SHU. Given the severity of the overall conditions to which both groups of prisoners were subjected, it was not surprising to learn that they all acknowledged some degree of suffering and distress. Yet there was absolutely no comparison in the levels reported by the GP versus the SHU prisoners. On nearly every single specific dimension measured, the prisoners in SHU were in significantly more pain, were more traumatized and stressed, and manifested far more isolation-​related pathological reactions. There are several ways in which these differences can be described and illustrated. The first is a direct comparison between the two groups in terms of whether or not they were experiencing a particular symptom (irrespective of the symptom’s frequency or intensity). Here, of the twenty-​five specific symptoms, the currently isolated long-​term SHU prisoners were significantly more likely than long-​term GP prisoners to report experiencing eighteen of them, including eleven of the thirteen symptoms of isolation-​related pathology. In fact,

Craig Haney  137 the SHU prisoners reported significantly more symptoms overall (M = 15.30 vs. 7.75, t = 6.44, df = 62, p < .001, Cohen’s D = 1.65), including significantly more stress and trauma related symptoms (M = 6.88 vs. 3.58, t = 5.36, df = 62, p < .001, Cohen’s D = 1.36), and significantly more isolation-​related indices of pathology (M = 8.44 vs. 4.24, t = 6.63, df = 64, p < .001, Cohen’s D = 1.66). In addition to the highly statistically significant nature of these differences, the orders of magnitude were quite large—​nearly twice as many symptoms overall were suffered by SHU prisoners as opposed to those in GP, as were each of the two separate categories of symptoms. In addition to a determination of the presence or absence of a symptom, I  asked prisoners to estimate the frequency with which they were bothered by these symptoms over approximately the last three-​month period (as a way of gauging intensity or the degree to which they suffered from the particular symptom or underlying problem).12 With the exception of headaches (which were reported at reasonably high levels of intensity for both groups), the only symptoms on which there were no significant differences between the SHU and GP prisoners pertained almost exclusively to symptoms that were reported very infrequently by both groups (e.g., fainting, suicidality). Thus, the long-​term SHU prisoners reported suffering much greater stress-​and trauma-​related symptom intensity (M = 17.7 vs. 7.79, t = 5.7, df = 62, p < .001, Cohen’s D = 1.53), and much greater intensity of isolation-​related pathology (M  =  21.66 vs. 9.00, t  =  7.46, df = 64, p < .001, Cohen’s D = 1.91). For these measures, the mean intensities of the reported symptoms were not only significantly different between the groups but were nearly or more than double for the SHU prisoners compared to those prisoners housed in GP.13 These dramatic, significant differences between the two distinct groups of long-​term prisoners clearly stemmed from differences in the social contact they were permitted to have in the course of their day-​to-​day lives. That is, in addition to the social interaction long-​term GP prisoners had with their cellmates, they had normal face-​to-​face contact with others when they exercised in a group setting in an actual outside prison yard, had access to evening “day room” time for several evenings a week (when they could congregate with prisoners outside 12 Prisoners who reported suffering from a symptom were asked whether they experienced it rarely, sometimes, often, or constantly (with a corresponding range in scores from one to four). 13 I  also conducted a sequential multiple linear regression to determine whether SHU status explained the difference in the intensity of the isolation-​related pathological symptoms beyond that explained by demographic and sentence-​related variables. Using the total intensity of isolation symptoms as the dependent variable, several independent variables (age, marital status, total estimated prison time to date, and whether the prisoner was serving a life sentence) were tested as predictors. SHU status had an extremely large effect, increasing the percentage of variance explained by the model from 40% to forth percent (adj. R2 = .403, F-​change [1,63] = 24.287, p < .001), which was by far the largest contributor to the intensity of isolation-​related symptoms suffered (even after controlling for the other variables).

138  Solitary Confinement, Loneliness their cells), were eligible for jobs and classes taught at the facility, were given increased telephone privileges, and were permitted contact visits in the main prison visiting room. The long-​term SHU prisoners were not permitted to experience any of these things for years, and the severe deprivations were taking a terrible psychological toll on them. For perhaps obvious reasons, much of the attention that is given to the harmfulness of solitary confinement has focused on lengthy or long-​term exposure. Like most forms of exposure to noxious, potentially harmful experiences, the negative consequences are “dose dependent”—​that is, the longer the exposure, the worse the expected outcome. However, that generalization, too, is subject to the qualification that there are variations in how people respond to and are affected by isolation, ones that depend on factors such as the severity of the isolation and the resiliency of the person. The focus on long-​term isolation should not detract from the fact that many people report having an almost immediate aversive reaction to isolation. I referred earlier to “isolation panic”—​a severe panic reaction that some prisoners suffer at the time or shortly after they are placed in solitary confinement. In addition, we know that not only is suicide and self harm far more likely to occur in solitary confinement than in other kinds of prison housing units, but also that the immediate period after being placed in isolation may an especially stressful and therefore high-​risk period.14

Broader social pathologies of solitary confinement In a broader sense, beyond the symptom-​level negative effects of solitary confinement, the social deprivation and social exclusion that are imposed by the experience engenders forms of social pathology—​necessary adaptations that prisoners must make to live in an environment that is devoid of normal social contact. That is, being forced to exist and function in the absence of meaningful interaction and closeness with others, in what is in essence a socially pathological environment, leaves prisoners with little or no choice but to adapt in socially 14 For example, see P. Frottier et  al., “Suicide Prevention in Correctional Institutions:  The Significance of Solitary Cell Accommodation,” International Journal of Prisoner Health 3, no. 3 (2012): 225–​32; Hayes, “National Study of Jail Suicides: 20 Years Later,” Journal of Correctional Health Care 18, no. 3 (2012): 233–​45; A. Liebling, “Prison Suicide and Prisoner Coping,” Crime and Justice 26 (1999): 283–​359; P. Roma et al., “Incremental Conditions of Isolation as a Predictor of Suicide in Prisoners,” Forensic Science International 23, no. 3 (2013): e1–​e3; and B. Way et al., “Inmate Suicide and Time Spent in Special Disciplinary Housing in New York State Prison,” Psychiatric Services 58, no. 4 (2007): 558–​60. As Patterson and Hughes concluded: “We found that the conditions of deprivation in locked units and higher-​security housing were a common stressor shared by many of the prisoners who committed suicide.” R. Patterson and K. Hughes, “Review of Completed Suicides in the California Department of Corrections and Rehabilitation, 1999–​2004,” Psychiatric Services 59, no. 6 (2008): 676–​82, 678.

Craig Haney  139 pathological ways. Over time, they gradually change their patterns of thinking, acting, and feeling to cope with the profoundly asocial world in which they are forced to live, accommodating to the absence of social support and the routine but essential feedback that comes from normal, meaningful social contact. There are several problematic features to the social pathologies that prisoners are forced to adopt in solitary confinement. The first is that, although these adaptations are more or less functional—​even necessary—​under the isolated conditions in which they live, the fact that prisoners eventually “adjust” to the absence of others does not mean that the experience ceases to be painful. Many long-​term isolated prisoners have told me that the absence of meaningful contact and the loss of closeness with others are akin to a dull ache or pain that never goes away. They remain acutely aware of the relationships that have ended and the feelings that can never be rekindled. Second, some prisoners cope with the painful, asocial nature of their isolated existence by paradoxically creating even more distance between themselves and others. For some, the absence of others becomes so painful that they convince themselves that they do not need social contact of any kind—​that people are a “nuisance,” after all, and the less contact they have the better. As a result, they socially withdraw further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary confinement and its attendant procedures require. Others move from initially being starved for social contact to eventually being disoriented and even frightened by it. As they become increasingly unfamiliar and uncomfortable with social interaction, they are further alienated from others and made anxious in their presence. Third, although these social pathological adaptations are functional and even necessary in the short-​term, over time they tend to be internalized and persist long after the prisoner’s time in isolation has ended. Thus, the adaptations move from being consciously employed survival strategies to becoming more deeply ingrained ways of being. These asocial adaptations may be functional in isolation (or appear to be so), but can become acutely dysfunctional in the social world most prisoners are expected to re-​enter. In extreme cases, these ways of being are not only subsequently dysfunctional but disabling, and interfere with the ability to live a remotely normal or fulfilling social life beyond solitary confinement. In the case of persons confined to solitary confinement for extremely long periods of time, such as the men who were housed in the Pelican Bay SHU for ten years or longer, another set of even deeper changes can occur. Perhaps because of the high levels of tension that pervade these environments, and the corresponding hypervigilance that prisoners housed there continue to maintain, and perhaps because the level of deprivation is so severe, I found that most prisoners had really not “gotten used to” the stress of this kind of confinement, despite the long periods of time many of them spent there. And, perhaps because

140  Solitary Confinement, Loneliness they had so few meaningful activities to serve as distractions from their pain, and so few meaningful social contacts from which to derive nurturing support, they remained acutely aware of pain and distress they were feeling. If anything, the high prevalence levels of reported symptoms speak directly to that. But the other things that few if any of them “got used to” were the deep losses they continued to suffer along the way—​their withering connections to family, friends, and others, and their increasing inability to function as social beings. Indeed, the near total isolation these men had from one another, and from the outside world, meant that they had to adjust to living in a state of being profoundly alone, a state that prison system ensured lasted, in the case of the Pelican Bay SHU prisoners, for a decade or more. Among the more fundamental ways that the experience changed them was not only that their social skills had atrophied in the absence of any meaningful opportunity to use them, but that many had lost the capacity to feel deep positive emotions or human connections. Many of them were acutely aware of this and it saddened them profoundly. There was a distinct somberness and joylessness about them, almost as though they were grieving. Many of them seemed to be grieving the relationships to family members and loved ones that they once had and now had lost, ones that they sensed would never be recaptured or recreated. In other instances, the grief seemed more generalized, as if they were grieving for a lost social self, the sense of who they once were, one that they knew was unlikely ever to be regained. In either case, they had experienced a form of what I believe is appropriate to term “social death.” They were grief-​stricken over what had been lost or taken from them—​what about them and their lives had “died.” I use the term “social death” here purposely to capture the depth of the changes prisoners in very long-​term solitary confinement can undergo in response to the extreme nature, magnitude, and duration of the isolation to which they are subjected.15 As I indicated earlier, involuntary isolation from others this total and complete, and this punitively enforced, does not exist anywhere else in modern society. But when prisoners are subjected to it for periods of years (and even decades)—​rather than days, weeks, or months—​they undergo a deeper and more profound kind of transformation, one much more extreme than what researchers typically mean when they refer to “social exclusion” and “loneliness.” Its effects are far more severe than those studied in these other, less extreme contexts. As one further aspect of the social death that many extremely long-​term SHU prisoners undergo, the experience can create a sense of what might be called “ontological insecurity”—​profound concerns about whether or not they really 15 For example, see the discussion by Harvard sociologist Orlando Patterson in Slavery and Social Death: A Comparative Study (Cambridge, MA: Harvard University Press, 1982).

Craig Haney  141 “exist” and have “being” in the world. This may seem like an extreme assertion, but it is important to realize that many of the men’s families and friends—​the persons who helped shape their identities and to whom those identities were most closely tied before coming to prison—​may not have interacted with or touched them for many years. In some cases, they had not seen each other or heard each other’s voices over this same period. If the people “closest” to you throughout your life have not seen you, and have not heard your voice, nor you theirs, do you really exist? If so, in what way? In addition, a number of the SHU prisoners described their lives to me in ways that indicated that they were not just “alienated” but felt alien, not of this social world. Many seemed resigned to it. They told me, in different words, essentially, “I’ve gotten used to it, I can tolerate it,” but not with a sense of bravado or triumph, rather more a sense of resignation or defeat. They understood the social death to which they were being subjected and it pained them.

The psychology of social exclusion and isolation I mentioned at the outset of this chapter that the direct studies of the harmful psychological effects of solitary confinement were supplemented by a larger literature on the negative consequences of isolation in settings outside prison.16 That literature also provides much of the theoretical framework within which the effects of solitary confinement can be best understood. Psychological science has long recognized the critical role of social contact in establishing and maintaining emotional health and well-​being. As one researcher put it: “Since its inception, the field of psychology emphasized the importance of social connections.”17 For example, the significance of “affiliation”—​the opportunity to have meaningful contact with others—​in reducing anxiety in the face of uncertain or fear-​arousing stimuli is long established in social psychological literature.18 In addition, one of the ways that people determine the appropriateness of their feelings—​indeed, how we establish the very nature and tenor of our emotions—​is through contact with others.19 Prolonged social deprivation is painful and destabilizing in 16 See Hawkley, Chapter 11, this volume. 17 C. DeWall, “Looking Back and Forward: Lessons Learned and Moving Forward,” in The Oxford Handbook of Social Exclusion, ed. C. DeWall (New York: Oxford University Press, 2013), 301, 301–​03. 18 For example, see S. Schachter, The Psychology of Affiliation: Experimental Studies of the Sources of Gregariousness (Stanford, CA: Stanford University Press, 1959); I. Sarnoff and P. Zimbardo, “Anxiety, Fear, and Social Affiliation,” Journal of Abnormal Social Psychology 62 (1961): 356–​63; P. Zimbardo and R. Formica, “Emotional Comparison and Self-​Esteem as Determinants of Affiliation,” Journal of Personality 31 (1963): 141–​62. 19 For example, see A. Fischer, A. Manstead, and R. Zaalberg, “Social Influences on the Emotion Process,” in European Review of Social Psychology, ed. M. Hewstone and W. Stroebe (Wiley Press, 2004), 171–​202; C. Saarni, The Development of Emotional Competence (New York: Guilford Press,

142  Solitary Confinement, Loneliness part because it deprives persons of the opportunity to ground their thoughts and emotions in a meaningful social context—​to know what they feel and whether those feelings are appropriate. Since this early research was conducted on the importance of affiliation, numerous scientific studies have established the psychological significance of social contact, connectedness. and belongingness. They have concluded, among other things, that the human brain is literally “wired to connect” to others.20 Conversely, the deprivation of meaningful social contact—​social isolation and exclusion in general—​is potentially very harmful and even dangerous. Indeed, thwarting this “need to connect” not only undermines psychological well-​being but increases physical morbidity and mortality.21 In part out of recognition of the importance of the human need for social contact, connection, and belongingness, social psychologists and others have written extensively about the harmful effects of its deprivation—​what happens when people are subjected to social exclusion and isolation. Years ago, Herbert Kelman argued that denying people contact with others was a form of dehumanization.22 More recently, others have documented the ways in which social exclusion is not only “painful in itself,” but also “undermines people’s sense of belonging, control, self-​esteem, and meaningfulness, reduces pro-​social behav­ior, and impairs self-​regulation.”23 In fact, the subjective experience of social exclusion can result in what have been called “cognitive deconstructive states” in which there is

1999); S. Schachter and J. Singer, “Cognitive, Social, and Physiological Determinants of Emotional State,” Psychological Review 69 (1962): 379–​99; The Social Life of Emotions, ed. L. Tiedens and C. Leach (New  York:  Cambridge University Press, 2004); and S. Truax, “Determinants of Emotion Attributions: A Unifying View,” Motivation and Emotion 8 (1984): 33–​54. 20 M. Lieberman, Social: Why Our Brains Are Wired to Connect (New York: Random House, 2013). 21 For example, see B. Bastian and N. Haslam, “Excluded from Humanity: The Dehumanizing Effects of Social Ostracism,” Journal of Experimental Social Psychology 46 (2010): 107–​13; S. Cacioppo and J. Cacioppo, “Decoding the Invisible Forces of Social Connections,” Frontiers in Integrative Neuroscience 6 (2012):  51–​58; C. DeWall et  al., “Belongingness as a Core Personality Trait:  How Social Exclusion Influences Social Functioning and Personality Expression,” Journal of Personality 79 (2011): 979–​1012; D. Fiorillo and F. Sabatini, “Quality and Quantity: The Role of Social Interactions in Self-​Reported Individual Health,” Social Science & Medicine 73 (2011):  1644–​52; S. Hafner et  al., “Association Between Social Isolation and Inflammatory Markers in Depressed and Non-​ depressed Individuals: Results from the MONICA/​KORA Study,” Brain, Behavior, and Immunity 25 (2011): 1701–​07; J. Karremans et al., “Secure Attachment Partners Attenuate Neural Responses to Social Exclusion: An fMRI Investigation,” International Journal of Psychophysiology 81 (2011): 44–​ 50; G. Thornicroft, “Social Deprivation and Rates of Treated Mental Disorder: Developing Statistical Models to Predict Psychiatric Service Utilisation,” British Journal of Psychiatry 158 (1991): 475–​84. See also Hawkley, Chapter 11, this volume. 22 H. Kelman, “Violence Without Restraint: Reflections on the Dehumanization of Victims and Victimizers,” in Varieties of Psychohistory, ed. G. Kren and L. Rappaport (New York: Springer, 1976), 282–​314. 23 Bastian and Haslam, “Excluded from Humanity,” 107, internal references omitted.

Craig Haney  143 emotional numbing, reduced empathy, cognitive inflexibility, lethargy, and an absence of meaningful thought.24 Some have theorized that the pain incurred by social exclusion and the enforced isolation from others—​what they term “social pain”—​may have evolutionary roots and is experientially and biologically similar to physical pain.25 Relatedly, the editor of the Oxford Handbook of Social Exclusion concluded the volume by summarizing the “serious threat” that social exclusion represents to psychological health and well-​ being, including “increased salivary cortisol levels . . . and blood flow to brain regions associated with physical pain,” “sweeping changes” in attention, memory, thinking, and self-​regulation, as well as changes in aggression and pro-​social behavior. As he put it: “This dizzying array of responses to social exclusion supports the premise that it strikes at the core of well-​being.”26 In addition, as I noted in passing earlier, prisoners in most solitary confinement units are also deprived of caring human touch. In the case of long-​term isolated prisoners, such as those I  studied at the Pelican Bay SHU, the prohibition of contact visits means that they can go for a decade or more without ever touching or being touched by another person in a caring or affectionate way. Yet, psychologists have long known that: “Touch is central to human social life. It is the most developed sensory modality at birth, and it contributes to cognitive, brain, and socioemotional development and childhood.”27 The need for caring human touch is so fundamental that early deprivation is a risk factor for neurodevelopmental disorders, depression, suicidality, and other self-​destructive behavior.28 Later deprivation is associated with violent behav­ ior in adolescents.29 Recent theory and research now indicate that “touch is a primary platform for the development of secure attachments and cooperative relationships,” is “intimately involved in patterns of care giving,” represents a “powerful means by which individuals reduce the suffering of others,” and also “promotes cooperation and reciprocal altruism.”30 24 J. Twenge, K. Catanese, and R. Baumeister, “Social Exclusion and the Deconstructed State: Time Perception, Meaninglessness, Lethargy, Lack of Emotion, and Self Awareness,” Journal of Personality and Social Psychology 85 (2003): 409–​23. 25 G. MacDonald and M. Leary, “Why Does Social Exclusion Hurt? The Relationship between Social and Physical Pain,” Psychological Bulletin 131, no. 2 (2005): 202–​23. 26 DeWall, Looking Back and Forward, 302. 27 M. Hertenstein et al., “Touch Communicates Distinct Emotions,” Emotion 6 (2006): 528–​33, 528. See also The Handbook of Touch:  Neuroscience, Behavioral, and Health Perspectives, ed. M. Hertenstein and S. Weiss (New York: Springer, 2011). 28 For example, see C. Cascio, “Somatosensory Processes in Neurodevelopmental Disorders,” Journal of Neurodevelopmental Disorders 2 (2010):  62–​ 69; S. Field, “Touch Deprivation and Aggression Against Self Among Adolescents,” in Developmental psychobiology of aggression, ed. D. Stoff and E. Susman (New York: Cambridge, 2005), 117–​40. 29 T. Field, “Violence and Touch Deprivation in Adolescents,” Adolescence 37 (2002): 735–​49. 30 J. Goetz, D. Keltner, and E. Simon-​Thomas, “Compassion:  An Evolutionary Analysis and Empirical Review,” Psychological Bulletin 136 (2010): 351–​74, 360.

144  Solitary Confinement, Loneliness In addition, the uniquely prosocial emotion of compassion “is universally signaled through touch,” so that persons who live in a world without touch are denied the experience of receiving or expressing compassion in this way.31 Researchers have found that caring human touch mediates a sense of security and place, a sense of shared companionship, of being and nurturing, feelings of worth and competence, access to reliable alliance and assistance, and guidance and support in stressful situations.32 A number of clinical experts have argued that caring human touch is so integral to our well-​being that it is actually therapeutic; it has been recommended to treat a host of maladies including depression, suicidality, and learning disabilities.33

Unbridgeable barriers and loneliness in solitary confinement One final aspect of the social deprivation to which prisoners in solitary confinement are subjected bears mention. Countless interviews that I have conducted with prisoners in isolation units throughout the United States gives lie to the notion that incidental or routine contact with correctional staff constitutes meaningful social interaction that can somehow negate the experience as “solitary confinement.” After more than four decades studying the dynamics of prison life, including numerous conversations with correctional officers and observations made in correctional facilities throughout the country, I can unequivocally say that, in the conventional roles in which prisoners and correctional staff typically function, the dividing line between them is nearly universally unbridgeable. It precludes genuine openness and true reciprocity in both directions. Despite an occasional exception, correctional staff members are almost uniformly regarded by solitary confinement prisoners as entirely “off limits” in terms of sharing feelings or admitting weakness. Indeed, the reprisals prisoners face for crossing this line rival or exceed the repercussions that are brought to bear on correctional officers if they are perceived by their peers as becoming too close, friendly, or caring toward prisoners. Although these barriers are in place elsewhere in prison, they are, if anything, much more inviolate in solitary confinement units,

31 J. Stellar and D. Keltner, “Compassion,” in Handbook of Positive Emotions, ed. M. Tugade, M. Shiota, and L. Kirby (New York: Guilford, 2014), 329–​41. 32 R. Weiss, “The Attachment Bond in Childhood and Adulthood,” in Attachment Across the Life Cycle, ed. C. Parkes, J. Stevenson-​Hinde, and P. Marris (London: Routledge, 1995), 66–​76. 33 For example, see S. Dobson et al., “Touch in the Care of People with Profound and Complex Needs,” Journal of Learning Disabilities 6 (2002):  351–​62; T. Field, “Deprivation and Aggression Against Self Among Adolescents,” in Developmental Psychobiology of Aggression, ed. D. Stoff and E. Susman (New York: Cambridge, 2005), 117–​40.

Craig Haney  145 given the hardened views that both groups there had come to have of each other.34 More surprising to outsiders, perhaps, and in some ways more problematic, a similar unbridgeable barrier also often separates prisoners from mental health staff. Over the years, many prisoners in solitary confinement have told me of their deep distrust of and even outright disdain for mental health staff members who come into the housing units to conduct “rounds” and supposedly monitor their mental health. Prisoners give several explanations for their unwillingness to speak in a meaningful or heartfelt way about their emotional problems to mental health staff. Many prisoners express doubts about whether mental health staff genuinely care about or are committed to their well-​being, especially when they engage in no more than very brief, pro forma walk-​throughs in the units (derisively referred to by prisoners as “drive-​bys”). Staff are described as doing no more than asking prisoners, “how are you” as they quickly pass by, but really not expecting and virtually never getting—​and, from the prisoners’ perspective, not really wanting—​a meaningful reply. In addition, many prisoners voice fears that anything they say to the mental health staff—​even the mere fact that they “talk to the psychs” (something that is virtually impossible to conceal in solitary confinement)—​would cause problems for them with other prisoners and perhaps even used against them by the prison administration. Prisoners are generally reluctant to have others know that they are having mental health problems; there are strong disincentives in prisons everywhere for prisoners to admit weakness of any kind. But this concern is especially heightened in solitary confinement, where shared camaraderie and image are more important to maintain. Moreover, many prisoners do not trust mental health staff to keep sensitive personal information completely confidential and withhold it from custody staff. As one prisoner summarized these concerns: “It goes without saying that we have trust issues with [mental health staff], and it’s not really confidential, plus we get stigmatized and shamed” by talking to them. This means that prisoners in solitary confinement are often left with absolutely no one with whom they can regularly turn for help with their emotional problems, suffering, or psychological pain. They are, for virtually all intents and purposes, living completely alone, and many of them are forced to live that way for very long periods of time. Yet, even those prisoners who “self-​isolate” appear to still acutely feel—​and be pained by—​the absence of others in their lives. They seem, in short, to be profoundly lonely, and to continue to be distressed by their loneliness. As I noted, over the last several decades, a great deal of psychological research has been devoted to measuring the effects of social isolation and the 34 For example, see the discussion in C. Haney, “A Culture of Harm: The Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behavior 35 (2008): 956–​84.

146  Solitary Confinement, Loneliness subjective experience of “loneliness” in a wide range of settings and for people from many different walks of life. Loneliness is itself directly related to a host of negative psychological and physical outcomes, including a decline in cognitive functioning, poor executive functioning, increased negativity and depression, a heightened sensitivity to social threats, and even increased morbidity and mortality.35 Of course, it is also a subjectively painful experience. To directly address these issues, I measured and compared the level of loneliness in the samples of long-​term SHU and GP prisoners I studied at Pelican Bay. I did so by administering the Revised UCLA Loneliness Scale,36 a twenty-​item measure that is generally regarded as “the standard measure of loneliness” used by social scientists.37 The scale is administered by asking respondents a series of twenty questions that address different but related aspects of whether and how much they feel they have meaningful connections to others. A respondent’s loneliness score is represented by the appropriately weighted sum of their answers to the entire set of twenty questions.38 In fact, I found that the mean UCLA Loneliness Scale score for the representative sample of long-​term SHU prisoners I  interviewed was 54.9, more than 10 points above the cutoff point that the scale developers considered indicative of “high loneliness.” In contrast, the GP prisoners averaged 41.6 overall on the scale, clearly at the higher end of the distribution of scores reported in the literature, but not reaching the “high loneliness” cutoff score (of 44) and not remotely as lonely as the long-​term SHU prisoners. The differences between the two groups—​the sample of SHU prisoners versus the GP group—​on their UCLA Loneliness scores was highly statistically significant, t = 4.64, df = 64, p < .001, Cohen’s D = 1.15. That difference is graphically depicted in Figure 8.1. The highly significant difference between these groups seems remarkable, given the relatively limited differences in the amount of social contact available to the Pelican Bay GP prisoners who were, as I have noted, themselves living in an extremely harsh, “locked down” mainline prison. To put the extraordinary 35 For example, in addition to the references cited De Wall, “Looking Back,” see also J. Cacioppo and L. Hawkley, “Perceived Social Isolation and Cognition,” Trends in Cognitive Science 13 (2009): 447–​ 54; J. Cacioppo, L. Hawkley, and G. Bernston, “The Anatomy of Loneliness,” Current Directions in Psychological Science 12 (2003):  71–​74; L. Hawkley and J. Cacioppo, “Loneliness Matters:  A Theoretical and Empirical Review of Consequences and Mechanisms,” Annals of Behavioral Medicine 40 (2010): 218–​40; M. Hughes et al., “Measuring Loneliness in Large Surveys: Results From Two Population-​Based Studies,” Research on Aging 26 (2004): 655–​72; G. Norman et al., “Perceived Social Isolation Moderates the Relationship Between Early Childhood Trauma and Pulse Pressure in Older Adults,” International Journal of Psychophysiology 88 (2012): 334–​38. 36 D. Russell, L. Peplau, and C. Cutrona, “The Revised UCLA Loneliness Scale: Concurrent and Discriminant Validity Evidence,” Journal of Personality and Social Psychology 39 (1980): 472–​80. 37 Hughes et al., “Measuring Loneliness,” 657. 38 Respondents are asked to select one of four possible responses (always, often, rarely, never) to each of twenty separate items that are appropriately counterbalanced so that, for some, “always” indicates frequent loneliness and for others it indicates the opposite, and so on.

Craig Haney  147 70.00 60.00

Mean Score on UCLA Loneliness Scale

54.85

50.00 41.64

40.00 30.00 20.00 10.00 0.00

SHU

GP

Figure 8.1  UCLA Loneliness Scale Scores, PBSHU vs. PBGP* *Error bars show the standard deviation of each group’s scores.

degree of loneliness experienced by the SHU prisoners in context, a literature search of the extensive number of published studies on measured levels of loneliness indicated that the SHU prisoners were among the loneliest groups ever assessed. Their mean scores were comparable to, and in most instances even more extreme than, those of groups of elderly nursing home patients and elderly persons institutionalized for chronic, life-​threatening illnesses.39 As I have pointed out, such extremely high levels of loneliness place persons at risk of a host of serious negative psychological and physical outcomes. In addition to these heightened loneliness-​related risks to physical and psychological well-​being, the subjective experience of loneliness is itself extremely painful. Indeed, two prominent researchers in this area have described loneliness as “a strong sense of social pain, emptiness, isolation, sadness for lack of confidants, 39 For example, see N. Fessman and D. Lester, “Loneliness and Depression Among Elderly Nursing Home Patients,” The International Journal of Aging & Human Development 51 (2000): 137–​41; C. Grov et al., “Loneliness and HIV-​Related Stigma Explain Depression Among Older HIV-​Positive Adults,” AIDS Care: Psychological and Socio-​medical Aspects of AIDS/​HIV 22 (2010): 630–​39; Z. Şahin and M. Tan, “Loneliness, Depression, and Social Support of Patients with Cancer and Their Caregiver,” Clinical Journal of Oncology Nursing 16 (2012): 145–​49; Y. Sun et al., “Loneliness, Social Support and Family Function of People Living With HIV/​AIDS in Anhui Rural Area, China,” International Journal of STD & AIDS 20 (2009): 255–​58; L. Theeke et al., “Loneliness, Depression, Social Support, and Quality of Life in Older Chronically Ill Appalachians,” The Journal of Psychology: Interdisciplinary and Applied 146 (2012): 155–​71.

148  Solitary Confinement, Loneliness unimportance and worthlessness.”40 This brief quote provides an excellent short summary of much of what my own interview data and the more structured symptom assessments that I have conducted clearly and consistently indicate. Extremely long periods of isolation can impose a painful form of social death, one that is manifested in part in the pathological levels of loneliness from which prisoners in solitary confinement suffer, as well as the concomitant deep sense of social pain and grief that many experience and report.

Conclusion Solitary confinement subjects prisoners to extreme forms of social isolation and social exclusion that, in turn, produce very high levels of suffering and pathology and nearly unprecedented degrees of loneliness. Prisoners are effectively prevented from having any meaningful social contact with others and, as a result, are precluded from developing or maintaining truly meaningful social relationships or social connections, either inside or outside the prison. In some instances, the adverse reactions to this kind of confinement are immediate, and come in the form of “isolation panic.” For inmates who manage to survive the initial period in solitary confinement, negative consequences mount over time. In some egregious cases, including in the case of the prisoners whom I studied at Pelican Bay, prison systems have kept them in this painful and damaging state for extremely long periods of time. As the psychologically painful experience continues and their risk of harm increases, isolated prisoners have few if any outlets through which to express or discuss their feelings, and no one in their immediate environment with whom they can acknowledge or share their pain and suffering. The social death that can result has deep and devastating effects.

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9

First Do No Harm Applying the Harms-​to-​Benefits Patient Safety Framework to Solitary Confinement Brie Williams* and Cyrus Ahalt**

Evidence generated through independent research and in the course of litigation has shown that solitary confinement has an adverse, immediate impact on mental anguish and on the development or worsening of existing mental health conditions.1 In contrast, studies describing the effects of solitary confinement on physical health are relatively limited in number, and report primarily on symptoms (e.g., stomach pains, headache, weight loss, sleep loss)2 but not on medical conditions (e.g., diabetes, heart disease). Yet it is known that many of the living conditions commonly associated with solitary confinement (e.g., lack of exercise and sunlight, profound social isolation, sensory deprivation) have an adverse effect on physical health.3 Despite this knowledge, very few studies have

* MD, MS; Professor of Medicine, University of California, San Francisco, Division of Geriatrics. ** MPP; Associate Director of The Criminal Justice & Health Program, University of California, San Francisco. 1 Ashker v. Brown, Case No. 4:09 CV 05796 CW. U.S. Dist. Ct. (N.D. Cal. August 31, 2015); C. Haney, “Mental Health Issues in Long-​Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency 49, no. 1 (2003): 124–​56, doi:10.1177/​0011128702239239; P. S. Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature,” Crime and Justice 34 (2006): 441–​528. 2 Smith, “The Effects of Solitary,” 441–​528. 3 C. K. Cassel, “Use It or Lose It: Activity May Be the Best Treatment for Aging,” Journal of the American Medical Association 288, no. 18 (2002):  2333–​35; L. C. Hawkley, and J. T. Cacioppo, “Loneliness Matters: A Theoretical and Empirical Review of Consequences and Mechanisms,” Annals of Behavioral Medicine 40, no. 2 (2010): 218–​27, doi:10.1007/​s12160-​010-​9210-​8; H. C. Janssen, M. M. Samson, and H. J. Verhaar, “Vitamin D Deficiency, Muscle Function, and Falls in Elderly People,” American Journal of Clinical Nutrition 75, no. 4 (2002):  611–​15, doi:10.1093/​ajcn/​75.4.611; A. Shankar et al., “Loneliness, Social Isolation, and Behavioral and Biological Health Indicators in Older Adults,” Health Psychology 30, no. 4 (2011): 377–​85, doi:10.1037/​a0022826; W. J. Strawbridge et al., “Physical Activity Reduces the Risk of Subsequent Depression for Older aAdults,” American Journal of Epidemiology 156, no. 4 (2002): 328–​34; H. X. Wang et al., “Late-​Life Engagement in Social and Leisure Activities Is Associated with a Decreased Risk of Dementia: A Longitudinal Study from the Kungsholmen Project,” American Journal of Epidemiology 155, no. 12 (2002): 1081–​87.

Brie Williams and Cyrus Ahalt. First Do No Harm In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0009

154  First Do No Harm attempted to determine the effects of solitary confinement on the development or worsening of medical conditions. In this chapter, we explore the scientific, practical, and ethical limitations of studying the physical health effects of solitary confinement. First, we describe the strategies that can be used to conduct such research and the limitations inherent in each. Because of these limitations, we then argue for using a harms/​ benefits analysis (commonly employed by the medical profession to assess the health impact of any intervention) to determine whether the use of solitary confinement is harmful to physical health. Use of that method leads to the conclusion that it is harmful, and that the costs to health far outweigh the potential (theoretical) benefits of its use. In such a situation, we describe how the medical profession’s response should be to “do no harm,” and recommend against use of a practice that presents serious health risks to those exposed to it. Indeed, using this approach, many correctional systems have already eliminated the use of solitary confinement for some populations (e.g., juveniles, the mentally ill) based on the determination that its mental health risks outweigh any potential benefits (e.g., prevention of future violence). This article outlines the medical profession’s theoretical framework for arriving at this conclusion and extends that approach to physical health by weighing the evidence-​based health-​related risks or harms of solitary confinement against what little is known about its potential benefits to prevent violence.

Developing a study design to investigate the health impacts of solitary confinement The most straightforward approach to investigating the health impact of solitary confinement is to conduct an observational study, either retrospectively (using pre-​existing administrative data to assess health outcomes of those previously exposed to solitary confinement) or prospectively (following people currently exposed). Observational studies are widely used in the medical literature, including to identify the health harms associated with environmental exposures.4 Perhaps the most well-​known example is the Framingham Heart Study, an ongoing observational cohort study beginning in 1948 that has made significant contributions to our understanding of cardiovascular disease.5 Observational

4 D. F. Stroup et al., “Meta-​Analysis of Observational Studies in Epidemiology: A Proposal for Reporting,” Journal of the American Medical Association 283, no. 15 (2000): 2008–​12. 5 S. S. Mahmood et al., “The Framingham Heart Study and the Epidemiology of Cardiovascular Disease:  A Historical Perspective,” Lancet 383, no. 9921 (2014):  999–​ 1008, doi:10.1016/​ S0140-​6736(13)61752-​3.

Brie Williams and Cyrus Ahalt  155 studies have proven similarly critical to establishing the links between risk factors like tobacco use,6 sugar consumption,7 and low socioeconomic status and adverse health and mortality outcomes.8 However, both retrospective and prospective observational study designs9 present significant challenges for investigating the health effects of solitary confinement. Retrospective observational studies require high-​quality secondary data (collected previously) so that researchers can accurately characterize the exposure (in this case, solitary confinement) and adequately account for all other factors that could plausibly influence the health outcomes of interest.10 Such studies are often accomplished with nationally representative, longitudinal health data sets comprising some combination of in-​depth patient survey data and comprehensive medical record data. Using these tools, a study investigating the health harms of tobacco use, for example, is able to determine the extent and length of tobacco use while accounting for other factors—​such as childhood asthma, a family history of lung cancer, or living in an urban area with poor air quality—​that may contribute to health problems independent of a person’s smoking.11 In the case of solitary confinement, such a study is profoundly challenging. It is theoretically possible to stitch together and re-​code a number of correctional administrative data sets and supplement those data with patient health information from medical records, but such an approach would require much improved funding opportunities in correctional health research.12 Further, evidence suggests that the results of such a study are not likely to generate reliable findings. For example, some litigation suggests that data describing the 6 R. Hsu et  al., “An Observational Study of Retail Availability and In-​Store Marketing of e-​ Cigarettes in London: Potential to Undermine Recent Tobacco Control Gains?,” BMJ Open 3, no. 12 (2013): e004085, doi:10.1136/​bmjopen-​2013-​004085; D. B. Rubin, “Using Propensity Scores to Help Design Observational Studies: Application to the Tobacco Litigation,” Health Services and Outcomes Research Methodology 2, no. 3 (2001): 169–​88, doi:10.1023/​a:1020363010465. 7 S. Gibson, “Sugar-​Sweetened Soft Drinks and Obesity: A Systematic Review of the Evidence from Observational Studies and Interventions,” Nutrition Research Review 21, no. 2 (2008): 134–​47, doi:10.1017/​S0954422408110976. 8 J. W. Lynch et  al., “Income Inequality and Mortality:  Importance to Health of Individual Income, Psychosocial Environment, or Material Conditions,” BMJ 320, no. 7243 (2000): 1200–​04; G. D. Smith et  al., “Adverse Socioeconomic Conditions in Childhood and Cause Specific Adult Mortality: Prospective Observational Study,” BMJ 316, no. 7145 (1998): 1631–​35. 9 E. von Elm et al., “The Strengthening the Reporting of Observational Studies in Epidemiology (STROBE) Statement:  Guidelines for Reporting Observational Studies,” PLOS Medicine 4, no. 10 (2007): e296, doi:10.1371/​journal.pmed.0040296. 10 C. Y. Lu, “Observational Studies:  A Review of Study Designs, Challenges and Strategies to Reduce Confounding,” International Journal of Clinical Practice 63, no. 5 (2009): 691–​97, doi:10.1111/​ j.1742-​1241.2009.02056.x. 11 S. Gandini et  al., “Tobacco Smoking and Cancer:  A Meta-​Analysis,” International Journal Cancer 122, no. 1 (2008): 155–​64, doi:10.1002/​ijc.23033. 12 C. Ahalt et  al., “The State of Research Funding from the National Institutes of Health for Criminal Justice Health Research,” Annals of Internal Medicine 162, no. 5 (2015): 345–​52.

156  First Do No Harm health of individuals held in solitary confinement may be inconsistent or of poor quality because, for example, people held in solitary confinement may be seen less frequently by providers and, when they are seen, restrictions (e.g., lack of privacy from “cell-​front” interviews) may exist that limit an examination’s efficacy.13 Furthermore, health and housing records are not typically linked among and across correctional systems, meaning that study groups can become easily diluted—​a person enrolled in a study of solitary confinement in a Florida prison who is considered to be in the “not exposed to solitary confinement” group could have spent two years in solitary confinement while in the Florida juvenile system and another year in isolation while awaiting trial in the Dade County Jail. Even if such data were widely available, relevant definitions and standards of “solitary confinement” vary; individuals housed in “solitary confinement” experience markedly different numbers of hours in isolation, access to visitors, exercise, and varying degrees of sensory deprivation depending on their facility or jurisdiction. These inconsistencies make such a study difficult to conduct across institutions and oftentimes even within the same institution if relevant policies have changed over time.14 In some cases, retrospective studies in a single setting can be valuable, although their small size means that an association may exist between the exposure and outcome even when one is not found. For example, in Chapter 11 of this volume, Hawkley reports findings showing that men in solitary confinement units at Pelican Bay Prison in California experienced higher rates of hypertension on average than similarly-​aged men held in less isolated maximum security housing.15 Findings from small studies like Hawkley’s, and from patient interviews and accounts developed in the course of litigation in gen­eral, should be heeded as they provide compelling evidence that solitary confinement can be deeply harmful but may not have the statistical power needed to explore other theoretically plausible adverse associations with profound isolation and lack of exercise, such as diabetes. Thus, significant limitations exist in our ability to use previously collected data to reliably investigate the health risks associated with solitary confinement across facilities and jurisdictions. Yet prospective observational studies also pose a profound challenge to health outcomes in this context. A wealth of research shows that incarcerated people experience a disproportionate burden of risk factors for poor health outcomes.16 In 13 C. Ahalt, A. Rothman, and B. A. Williams, “Examining the Role of Healthcare Professionals in the Use of Solitary Confinement,” BMJ 359 (2017): j4657; Arthur Johnson v. John Wetzel, Civil Action No. 1:16-​CV-​863 (M.D. Pa., 2016). 14 A. Naday, J. D. Freilich, and J. Mellow, “The Elusive Data on Supermax Confinement,” The Prison Journal 88(1) (2008):  69–​93, doi:10.1177/​0032885507310978; S.  Shalev, A Sourcebook on Solitary Confinement (London: Mannheim Centre for Criminology, London School of Economics, 2008), www.solitaryconfinement.org/​sourcebook. 15 Ashker v. Brown, Case No. 4:09 CV 05796 CW (N.D. Cal. August 31, 2015). 16 S. Fazel, and J. Danesh, “Serious Mental Disorder in 23,000 Prisoners: A Systematic Review of 62 Surveys,” The Lancet 359, no. 9306 (2002): 545–​550; I. A. Binswanger, P. M. Krueger, and J.

Brie Williams and Cyrus Ahalt  157 order to be able to account for these baseline risk factors on future health outcomes, any effective prospective observational study must include two populations of incarcerated patients for comparison:  one group exposed to solitary confinement and one not. But movement in and out of solitary confinement,17 and in and out of incarceration in general,18 is frequent. In the United States, a Bureau of Justice Statistics Report found that one in five incarcerated people were held in solitary confinement over the course of just one year.19 To adequately account for this movement—​and to ensure that a study enrolls and retains adequately sized cohorts—​would require a large (and therefore expensive) study. These challenges are underscored by a widely cited—​and strongly discredited—​research study on solitary confinement and health. The O’Keefe study sought to assess the mental health effects of solitary confinement by prospectively following two cohorts in a state prison.20 But participants moved in and out of isolation with such frequency that the cohorts became indistinguishable by their exposure to solitary confinement. The findings, based on the original cohort assignments, reported little difference in outcomes between the groups. The study has since been extensively critiqued for the fundamental methodological flaw of contamination.21 In contrast, the Hawkley study in Chapter 11 offers a compelling counterpoint since the researchers were able to compare people held in solitary confinement for over ten years at one site to those held in a maximum security unit at the same prison for a comparable time period. But the great majority of people exposed to F. Steiner, “Prevalence of Chronic Medical Conditions among Jail and Prison Inmates in the USA Compared with the General Population,” Journal of Epidemiology & Community Health 63, no. 11 (2009): 912–​19; S. Fazel and J. Baillargeon, “The Health of Prisoners,” Lancet 377, no. 9769 (March 12, 2011): 956–​65; M. Greene et al., “Older Adults in Jail: High Rates and Early Onset of Geriatric Conditions,” Health & Justice 6, no. 1 (2018): 3–​12, doi:10.1186/​s40352-​018-​0062-​9. 17 Association of State Correctional Administrators (ASCA) and the Arthur Liman Public Interest Program, Aiming to Reduce Time-​In-​Cell:  Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (New Haven, CT: Yale Law School, 2016), accessed January 4, 2016, https://​www.law.yale.edu/​system/​files/​ area/​center/​liman/​document/​aimingtoreducetic.pdf. 18 J. Baillargeon et al., “Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door,” The American Journal of Psychiatry 166, no. 1 (2009): 103–​09; R. Freeman, “Can We Close the Revolving Door?: Recidivism vs. Employment of Ex-​Offenders in the U.S.” (paper presented at the Urban Institute Reentry Roundtable, Employment Dimensions of Reentry: Understanding the Nexus between Prisoner Reentry and Work, New York, 2003). http://​www.urban.org/​UploadedPDF/​ 410857_​freeman.pdf. 19 A. J. Beck, “Use of Restrictive Housing in U.S. Prisons and Jails, 2011–​2012” (Washington, DC: Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2015). 20 M. L. O’Keefe, K. J. Klebe, A. Stucker, K. Sturm, and W. Leggett, One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, (research report submitted to the US Department of Justice, October 31, 2010), https://​www.ncjrs.gov/​pdffiles1/​nij/​grants/​232973.pdf. 21 C. Haney, “Restricting the Use of Solitary Confinement,” Annual Review of Criminology 1 (2018):  285–​310; P. S. Smith, “The Effects of Solitary Confinement:  Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation,” Corrections & Mental Health: An Update of the National Institute of Corrections (2011).

158  First Do No Harm solitary confinement are held in such conditions for a far shorter period. A study to estimate the health effects of that far more common experience would have to be carried out on a much larger scale across a sample of diverse correctional facilities and populations. As a result, it is highly unlikely that a prospective observational study in the context of solitary confinement can obtain the methodological rigor needed to drive broad policy changes. The measurement obstacles inherent in retrospective observational studies, and the “real world” challenges associated with prospective observational studies of solitary confinement, could be overcome by what is widely considered the “gold standard” in medical research: the randomized controlled trial (RCT).22 The RCT design allows investigators to randomly assign some research participants to an exposure and others to a control group. Randomization offers the best chance of minimizing or eradicating systematic differences between groups that can have an impact on the outcome being studied. The “controlled” portion of the RCT allows investigators to control the environmental milieu over time so that the exposure is identical for all research participants. Designing and conducting an RCT to determine the health effects of solitary confinement would have two requirements:  first, a correctional system partner allowing researchers to randomly assign solitary confinement; and second, researchers willing to conduct the study. For the latter, researchers would have to comply with basic research ethics, meaning they would be obligated to verify that the study (1) does not pose immediate and obvious harm to those exposed to it, and (2) could reasonably be expected to confer benefit to the participants (based on preliminary evidence from other, smaller studies or by extrapolating evidence of benefit from studies describing similar exposures). This “harms-​to-​benefits” approach establishes that an intervention is safe for human research participants, assesses whether it is effective in the short term, and determines whether an intervention’s longer-​term health risks outweigh its benefits. The harms-​to-​benefits framework is a critical precursor to an RCT. Beyond research, the harms-​to-​benefits framework is also used to assess a broad array of interventions that can affect human health, including treatments and interventions, health policies, and clinical paradigms (such as when to start and stop population-​based cancer screening).23 In the next section, we subject solitary confinement to such an evaluation.

22 P. M. Spieth et  al., “Randomized Controlled Trials—​A Matter of Design,” Neuropsychiatric Disease and Treatment 12 (2016): 1341–​49, doi:10.2147/​NDT.S101938. 23 E. J. Emanuel, D. Wendler, and C. Grady, “What Makes Clinical Research Ethical?,” Journal of the American Medical Association 283, no. 20 (2000): 2701–​11; C. Nardini, “The Ethics of Clinical Trials,” Ecancermedicalscience 8 (2014): 387, doi:10.3332/​ecancer.2014.387.

Brie Williams and Cyrus Ahalt  159

Applying a harms-​to-​benefits patient-​safety framework to assess solitary confinement Solitary confinement is an extreme environmental intervention with a known adverse impact on mental health that is so dissimilar from everyday life that it may also have a consequential impact on the physical health and well-​being of those subjected to it. The harms-​to-​benefits approach constitutes a useful theoretical framework in which to systematically apply relevant information to assess its potential risk to human health. Furthermore, while solitary confinement is not intended to have a health benefit to the human body, it’s one theoretical benefit is violence prevention, which is increasingly recognized as a public health intervention.24 The harms-​to-​benefits approach constitutes a minimum standard of review for interventions that bear on health and well-​being and/​or aim at achieving a public health goal such as violence prevention. The use of such a framework to assess solitary confinement is thus consistent, from a health perspective, with an increasing focus on understanding the social and environmental determinants of health, including policies and practices outside the health care field.25 For the purposes of our analysis of solitary confinement, we will use the exemplary stepwise harms-​to-​benefit assessment that is used by the Federal Drug Administration (FDA) to determine whether new medications or medical devices are suitable for approval.26 We have chosen this example—​the longstanding FDA medication and medical device approval process—​because its clear stepwise approach to conducting a harms-​to-​benefits analysis makes it easy to describe and follow and because it is considered a “gold standard” approach to assessing interventions. This process was developed in response to the 1938 Federal Food, Drug and Cosmetic Act requiring every new drug to demonstrate its safety before being sold to patients. The rationale given for requiring such a process was to “prevent quackery, to provide doctors and patients the information they need to use medicines wisely, to ensure that the approved intervention works correctly, and that its benefits outweigh its known risks.”27 The resulting 24 L. L. Dahlberg and E.G. Krug, “Violence: A Global Public Health Problem,” in World Report on Violence and Health, ed. Krug E., L. L. Dahlberg, J. A. Mercy, A. B. Zwi, and R. Lozano (Geneva, Switzerland: World Health Organization, 2002), 1–​56. 25 T. L. Osypuk, P. Joshi, K. Geronimo, and D. Acevedo-​Garcia, “Do Social and Economic Policies Influence Health? A Review,” Current Epidemiology Reports 1, no. 3 (2014): 149–​64, doi:10.1007/​ s40471-​014-​0013-​5. 26 A. A. Ciociola et al., “How Drugs Are Developed and Approved by the FDA: Current Process and Future Directions,” The American Journal of Gastroenterology 109 (2014):  620, doi:10.1038/​ ajg.2013.407. 27 W.H. Kitchens, “FDA Regulatory Approval Process for Medical Products,” in Technological Innovation:  Generating Economic Results (Advances in the Study of Entrepreneurship, Innovation & Economic Growth, Volume 26), ed. Marie C. Thursby (Emerald Group Publishing Limited 2016), 201–​29.

160  First Do No Harm

Subjects

Preclinical Testing

Phase 1

Phase 2

Phase 3

Laboratory and animal studies

20–100 Healthy volunteers

100–300 Patient volunteers

1,000–3,000 Patient volunteers

Purpose Assess Safety & biological activity

Time Course

Year 1–2

Determine safety & dosage

Year 3

Evaluate effectiveness & side effects

Year 4–5

Verify effectiveness & monitor adverse long-term use

Year 6–8

Figure 9.1  The “Harms to Benefits” Approach Used by the FDA

FDA approval process is divided into four main phases:  Pre-​clinical testing, phase 1, phase 2, and phase 3 (see Figure 9.1).

The harms-​to-​benefits framework and evaluation of solitary confinement: Pre-​clinical testing The first phase in evaluating any medical intervention begins in the scientific laboratory—​without human subjects. That “pre-​clinical testing phase” focuses entirely on safety. Evidence for safety is documented on a cellular level in some instances or with animals when animal testing is appropriate. Based on their genetic similarities to humans, rodents and non-​human primates are most commonly used for these studies. If we applied a pre-​clinical test to an intervention that confined the subject to a small space, roughly the size of a parking space, with limited access to regular exercise, sunlight, and meaningful social interaction for a period of a few days or longer (referred to now as “solitary confinement”), we would ask the question:  “Is there evidence that exposing research animals to comparable conditions result in harm?” This question has been answered extensively: yes. For example, it has been shown that isolated caging of research animals increases their blood pressure and heart rate.28 It also causes the hearts of isolated animals to become enlarged 28 P. G. Carlier et  al., “Cardiovascular Structural Changes Induced by Isolation-​ Stress Hypertension in the Rat,” Journal of Hypertension Supplement 6, no. 4 (1988): S112–​15; S. M. Gardiner, and T. Bennett, “The Effects of Short-​Term Isolation on Systolic Blood Pressure and Heart Rate in

Brie Williams and Cyrus Ahalt  161 and thickened, which can lead to myocardial hypertrophy and heart failure.29 Prolonged exposure to isolation can cause increased responsiveness to stress hormones which can in turn increase the risk of myocardial infarction (heart attack).30 Immunologic responses become weaker, increasing the risk of infection.31 Development of a deficit in sensory motor gating can occur, the process that goes awry in schizophrenia.32 An abnormal walking pattern (ambulatory gait) can develop, a problem of particular concern for older adults.33 These findings offer just a glimpse into the vast scientific literature regarding the adverse health effects of isolation on health in animal studies. In fact, this evidence has proven sufficiently compelling to spur a host of reforms and practices governing the appropriate housing of animals being used for scientific research or residing in zoos.34 Regulations requiring the humane housing of animals ban the use of many aspects of solitary confinement that are commonly practiced on humans in prison. For example, the Australian Animal Research Review Panel has established the policy that rats being used for research should not be housed individually unless there is a strong scientific rationale for doing so.35 In this instance, the scientist must gain the express permission from an animal ethics committee and—​when the scientist is given this permission—​the rat still must be housed in visual, auditory, and olfactory contact with other rats. Similarly, in the United States, the Animal Welfare Act

Rats,” Medical Biology 55, no. 6 (1977): 325–​29; D. M. Lawson, M. Churchill, and P.C. Churchill, “The Effects of Housing Enrichment on Cardiovascular Parameters in Spontaneously Hypertensive Rats,” Contemporary Topics Laboratory Animal Science 39, no. 1 (2000): 9–​13; J. Sharp et al., “Stress-​Like Responses to Common Procedures in Individually and Group-​Housed Female Rats,” Contemporary Topics Laboratory Animal Science 42, no. 1 (2003): 9–​18. 29 Carlier et al., “Cardiovascular Structural Changes,” S112–​15. 30 L. Parra, J. A. Fuentes, and A. Alsasua, “Vascular Alterations in Rats with High Blood Pressure Induced by Social Deprivation Stress,” Life Sciences 55, no. 9 (1994): 669–​75. 31 D. R. Baldwin, Z. C. Wilcox, and R. C. Baylosis, “Impact of Differential Housing on Humoral Immunity Following Exposure to an Acute Stressor in Rats,” Physiology & Behavior 57, no. 4 (1995): 649–​53. 32 K. Krebs-​Thomson et  al., “Post-​Weaning Handling Attenuates Isolation-​Rearing Induced Disruptions of Prepulse Inhibition in Rats,” Behavioral Brain Research 120, no. 2 (2001): 221–​24. 33 L. Roberts, K. A. Clarke, and J. R. Greene, “Post-​Weaning Social Isolation of Rats Leads to an Abnormal Gait,” European Journal of Neuroscience 13, no. 10 (2001): 2009–​12. 34 American Society of Primatologists, “Position Statement:  Social Housing for Nonhuman Primates Used in Biomedical or Behavioral Research in the United States” (adopted by the ASP Primate Care Committee November 5, 2014), accessed June 28, 2018, https://​www.asp.org/​society/​ resolutions/​socialhousing.cfm; US National Research Council (US) Committee for the Update of the Guide for the Care and Use of Laboratory Animals, Guide for the Care and Use of Laboratory Animals, 8th ed. (Washington, DC: National Academies Press, 2011), 3, https://​www.ncbi.nlm.nih.gov/​books/​ NBK54046/​. 35 National Health and Medical Research Council, Australian Code for the Care and Use of Animals for Scientific Purposes, 8th ed. (Canberra: National Health and Medical Research Council, 2013).

162  First Do No Harm requires an environment that promotes psychological well-​being for primates involved in research.36 It states: Like all social animals, non-​human primates should or sometimes must be socially housed. And sometimes exceptions to this rule against an isolation of primates does occur for a variety of scientific or behavioral reasons. And when this happens, just as there are in rats and mice, there is a very clear set of rules that govern isolated single housing. They have to be limited to the minimum period necessary and additional enrichment has to be offered.

There is an entire manual created by the Office of Laboratory Animal Welfare that details how much larger a cage must be when an animal is isolated (considerably bigger than the regularly sized cage) and the requirements for significant supplemental enrichment in such circumstances.37 Isolated animals must also receive enhanced non-​contact communication—​meaning that researchers handling the animals must interact with them more if they are confined to isolation away from other animals. Overall, if the rules used to establish safe housing practices for non-​human primates were just extended to all primates, then profound changes would be required in the way prisons use long-​term solitary confinement. (For further discussion of the evidence from the animal science and neuroscientific literature suggesting even brief periods of solitary confinement can result in irreversible damage, see Chapter 13.) Applying the harms-​to-​benefits approach, the pre-​clinical testing evidence would require that solitary confinement be immediately discontinued for further testing with humans. However, for the purposes of this chapter, we will also consider an evaluation of “phase 1” testing of solitary confinement.

Harms-​to-​benefits framework and evaluation of solitary confinement: Phase 1 testing The purpose of phase 1 testing is to conduct initial safety evaluations to establish an intervention’s safe dose range. Like pre-​clinical testing, phase 1 testing—​which typically includes 20 to 100 healthy volunteers—​already has been conducted for solitary confinement. Here, researchers including Professors Craig Haney, Stuart Grassian, Henrik Andersen, and others have interviewed hundreds of

36 K. A. Phillips et al., “Why Primate Models Matter,” American Journal of Primatology 76, no. 9 (2014): 801–​27, doi:10.1002/​ajp.22281. 37 National Research Council (US) Committee, Guide for the Care and Use of Laboratory Animals, 3.

Brie Williams and Cyrus Ahalt  163 patients exposed to varying lengths of solitary confinement to assess the health consequences associated with that exposure.38 The knowledge they and others have generated shows that many people exposed to solitary confinement experience short-​term mental anguish, including depression, anxiety, and associated physical symptoms like sleeplessness and distressing sensory changes.39 Among those who are exposed to prolonged solitary confinement (months, years, or decades), they have observed profound suffering including what Professor Haney has termed a “social death,” when participants are no longer able to recognize themselves or meaningfully participate in social interaction.40 Because they observe effects even in some people with relatively brief exposure to isolation, this case-​based research has been unable to identify a safe dose range for solitary confinement. Another research group, the European Committee for the Prevention of Torture (CPT), has also interviewed hundreds of people in solitary confinement throughout Europe and concluded that solitary confinement is unsafe when used for more than fourteen consecutive days.41 This group has also failed to identify a safe dose range for solitary confinement—​nor has any other researcher. In this regard phase 1 testing has concluded that solitary confinement for longer than fourteen days is an unsafe practice for humans.42 But it also remains incomplete, leaving open the question: is there any dose of solitary confinement short of fourteen consecutive days that is safe? The results of phase 1 testing of solitary confinement as described above would, as in the case of pre-​clinical testing, lead to the conclusion that solitary confinement is inappropriate for use with humans and also not appropriate for the final testing phases (phases 2 and 3). These later phases comprise larger scale human trials designed to evaluate long-​term safety and efficacy. While the wealth of evidence cited to this point finds conclusively that solitary confinement is unsafe to test in humans, we consider phase 2 and 3 testing for the theoretical purposes of this chapter. 38 S. Grassian, “Psychopathological Effects of Solitary Confinement,” The American Journal of Psychiatry 140 no. 11 (1983):  1450–​54, doi:10.1176/​ajp.140.11.1450; Haney, “Mental Health Issues,” 124–​56; H. S. Andersen et  al., “A Longitudinal Study of Prisoners on Remand:  Repeated Measures of Psychopathology in the Initial Phase of Solitary versus Nonsolitary Confinement,” International Journal of Law and Psychiatry (2003): 165–77; Stuart Grassian, “Psychiatric Effects of Solitary Confinement,” Washington University Journal of Law & Policy 22 (2006): 325–​383, http://​ openscholarship.wustl.edu/​law_​journal_​law_​policy/​vol22/​iss1/​24. 39 Smith, “The Effects of Solitary,” 441–​528. 40 Haney, “Mental Health Issues,” 124–​56; Expert testimony of Craig Haney, PhD, JD, in Ashker v. Brown, Case No. 4:09 CV 05796 CW (N.D. Cal. August 31 2015), accessed April 7, 2017, https://​ ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Redacted_​Haney%20Expert%20Report.pdf. 41 Council of Europe: Committee for the Prevention of Torture, 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), (2011): 28, accessed July 23, 2019, https://​www.refworld.org/​docid/​4ebbb7f52.html. 42 Special Rapporteur of the Human Rights Council, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations General Assembly, Sixty-​sixth Session, 2011), 27.

164  First Do No Harm

The harms-​to-​benefits framework and evaluation of solitary confinement: Beyond phase 1 testing The second and third testing phases of any human intervention are done to establish efficacy (how well does the intervention work) and to continue identifying any risks for harm. Phase 2 and 3 testing generally take place six to eight years after the intervention has been assessed in the pre-​clinical and phase 1 stages in order to successfully demonstrate longer-​term safety. Phases 2 and 3 are nearly identical in purpose but differ importantly in scale, underlining how the process continues to leave open the possibility that new harms will be discovered even years following an exposure or treatment. Phase 2 trials enroll between 100 and 300 volunteers who have the condition being treated to further assess safety and provide preliminary assessment of the treatment’s efficacy; phase 3 trials, which take place only once phase 2 trial results confirm patient safety and suggest some efficacious effect on the relevant condition, increase those numbers to 1,000 to 3,000. Pre-​clinical and phase 1 studies have established that exposure to solitary confinement poses a significant risk of physical and mental harm and would not be considered suitable for use in humans or even for further testing or research. However, because solitary confinement is such a longstanding and widely used practice in prisons and jails, there is value in examining the next important question raised in phase 2 testing: What is its benefit? As discussed above, while solitary confinement is not intended to have a health benefit to the human body, it is intended to prevent violence and, as such, is a public health intervention. This suggests a valid framework for applying phase 2 (and potentially phase 3) testing: Is solitary confinement effective from a public health (violence prevention) perspective? If it is found to be an effective violence prevention measure, then the final stages of analysis would be to weigh those public health benefits against any risks and harms identified, in order to determine whether solitary confinement can be justified. Using the existing literature on the effectiveness of solitary confinement for violence prevention, however, we would quickly conclude that it is not an effective intervention. (Here, again, “solitary confinement” refers to isolation for days or longer, beyond the period of hours required to de-​escalate or end a potentially violent or violent situation.) In fact, while the literature is limited, studies have shown that facilities with high rates of solitary confinement are no less prone to violence than facilities that use solitary confinement far less.43 Those findings are consistent with statements made by correctional leaders who have undertaken 43 R. M. Labrecque, The Effect of Solitary Confinement on Institutional Misconduct: A Longitudinal Evaluation (Doctoral Dissertation) University of Cincinnati, Cincinatti, Ohio (2015). https://​www. ncjrs.gov/​pdffiles1/​nij/​grants/​249013.pdf.; Shira E. Gordon, “Solitary Confinement, Public Safety, and Recidivism,” University of Michigan Journal of Law Reform 47 (2014): 495–​528, https://​repository.law.umich.edu/​mjlr/​vol47/​iss2/​6; Chad S. Briggs, Jody L. Sundt, and Thomas C. Castellano,

Brie Williams and Cyrus Ahalt  165 significant reductions in the use of solitary confinement reform and reported no notable increases in violence.44 Moreover, emerging evidence suggests that prisons comprise such toxic environments that they have adverse effects on even the correctional officers who work there, including on their health and behavioral health risks, including domestic violence and suicide.45 In response to this growing literature, many (though not all) correctional leaders have expressed doubt that solitary confinement leads to any benefit and instead have raised the possibility that working in such units also harms staff. While some correctional leaders continue to contend that long-​term solitary confinement effectively reduces violence in jails and prisons, that contention is not supported by evidence. This lack of strong evidence is particularly stark in contrast to the wealth of evidence documenting the mental health harms associated with solitary confinement. Thus, on balance, it should be concluded that any assumed violence prevention benefits of solitary confinement are far outweighed by significant evidence of its harm to health. In reality, phase 2 and phase 3 testing of solitary confinement has not been done—​and will not be. While there are no studies documenting the reasons for this lack of such research, it is almost certainly because institutional review boards (which must approve all scientific studies before they can be conducted) would not allow it and most researchers (and many correctional agencies) would not be comfortable conducting it—​all on ethical grounds. This in itself suggests that we already know enough about solitary confinement’s ill effects to know that it is not an appropriate intervention for humans. In the broader medical and public health research contexts, any treatment or intervention with the known risks and lack of demonstrable benefits associated with solitary confinement

“The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence,” Criminology 41 (2003): 1341–​76. 44 D. H. Cloud et al., “Public Health and Solitary Confinement in the United States,” American Journal of Public Health 105, no. 1 (2015):  18–​26, doi:10.2105/​ajph.2014.302205; United Nations Office on Drugs & Crime, “Assessing Compliance with the Nelson Mandela Rules”; Scientific American, “Solitary Confinement Is Cruel and Ineffective,” editorial (August 1, 2013), https://​ www.scientificamerican.com/​article/​solitary-​confinement-​cruel-​ineffective-​unusual/​; A. Shames, J. Wilcox, and R. Subramanian, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives (New York: Vera Institute of Justice, 2015). 45 M.  D. Denhof, and C.  Spinaris, “Depression, PTSD, and Comorbidity in United States Corrections Professionals:  Prevalence and Impact on Health and Functioning” (2013), http://​ desertwaters.com/​wp-​content/​uploads/​2013/​09/​Comorbidity_​Study_​09-​03-​131.pdf; Oregon Health Authority & Multnomah County Health Department, Program Design and Evaluation Services. Measuring Worksite Wellness at Oregon Department of Corrections: Results from the 2016 Employee Survey (Salem, OR: Oregon Department of Corrections, 2017); S. J. Stack, and O. Tsoudis, “Suicide Risk among Correctional Officers: A Logistic Regression Analysis,” Archives of Suicide Research 3, no. 3 (1997): 183–​86, doi:10.1080/​13811119708258270.

166  First Do No Harm would be immediately removed from the market and all future research on it discontinued.

Conclusion By subjecting the current evidence describing the risks and benefits of solitary confinement to the rigorous scientific process used to assess interventions that might affect health, we show that researchers, practitioners, and policymakers have not engaged in nearly the level of scientific analysis that would be expected in any other context for an intervention that affects the human body, brain, and its overall health and well-​being in the way that solitary confinement does. Using the Federal Drug Administration’s clear stepwise approach to assessing potential harms and benefits to human health, we conclude that solitary confinement is not suitable even for animals and, indeed, a host of housing regulations for animal research and the housing of captive animals are far more generous, relative to the animals’ size and social needs, than regulations governing humans’ exposure to isolation in jails and prisons. As a result, solitary confinement would fail to proceed beyond the pre-​clinical testing phase and would not be approved even for testing in humans. In reality, solitary confinement has been tested on countless humans in recent decades, including 80,000 Americans on any given day.46 That informal experiment has yielded a trove of evidence far exceeding what would be required for phase 1 clinical testing of an intervention’s safety. That evidence is devastating in both the nature of its findings and the near-​unanimity of its conclusions: Solitary confinement for even short periods of time can cause profound harm to human health and well-​being. Moreover, though solitary confinement would never be approved for phase 2 or 3 clinical testing, we have that evidence as well. As a public health intervention for violence prevention, solitary confinement beyond the short time period required for de-​escalation and conflict resolution (up to one to two days, for example) appears to confer no known benefits. Such demonstrated ineffectiveness should render the decision to discontinue solitary confinement non-​controversial considering its well-​documented health harms and risks. In the health care professions, the harms-​to-​benefits approach to assessing the acceptability of any intervention, as modeled by the drug and medical device approval process described in this chapter, aims to limit exposure to untested interventions that have the potential to harm health. A popular maxim that guides the medical profession is that “the physician must have two special

46

ASCA and Arthur Liman Public Interest Program, Aiming to Reduce Time-​In-​Cell.

Brie Williams and Cyrus Ahalt  167 objects in view with regard to disease, namely to do good or to do no harm.” This concept is frequently translated as “primum non nocere,” or “first do no harm.” From a medical perspective, solitary confinement profoundly fails this most basic charge. Rather, an assessment of its known harms and benefits using a standard health framework underlines that solitary confinement poses profound risk of serious harm to individuals while at the same time lacking evidence of any meaningful benefit to violence prevention. Further use and study of solitary confinement should be discontinued.

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10

Mythbusting Solitary Confinement in Jail Homer Venters*

Introduction Incarceration harms health, and solitary confinement provides a deadly example of this often-​obscured truth. Several myths about the health risks of solitary confinement serve to stand in the way of abolishing this practice, particularly in jail settings, where most detainees are either awaiting trial or serving short sentences for minor crimes known as misdemeanors. These myths include the lack of real health outcomes from exposure to solitary confinement, its application in an even or fair manner, and the lack of safe alternatives. These myths persist in part because of a lack of rigorous data from US jail settings, where over 90% of all incarcerations occur and where solitary confinement takes on a unique pattern of harm that reflects the jail setting itself. As one of the few independent jail health systems in the United States, the New York City correctional health service adopted an electronic medical record (EMR) heavily modified to identify and measure the health risks of incarceration. One of the first areas of research that the EMR was utilized for involved exposure to solitary confinement, including health outcomes and characteristic of persons exposed to this practice as well as the entanglement of the health service in caring for patients and sometimes legitimizing the practice itself. By leveraging several unique analyses, the New York City jail system’s health service was able address these myths about solitary confinement in jail settings and coordinate with the Department of Correction to abandon solitary confinement in most instances. There is a pressing need for additional reforms in this and other jail settings, and several barriers imperil recent progress.

* MD, MS, was formerlyChief Medical Officer, Correctional Health Services, New  York City Health and Hospital System and is now Senior Health and Justice Fellow at the nonprofit Community Oriented Correctional Health Services and Clinical Associate Professor, New  York University College of Global Public Health. Dr. Venters’s work focuses on the health risks of incarceration and the intersection between correctional health and human rights. Homer Venters. Mythbusting Solitary Confinement in Jail In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0010

174  Mythbusting Solitary Confinement in Jail

Data-​driven reform Dispelling myths of solitary confinement in the New York City jail setting required a substantial commitment to the type of data that was available for analysis and the will to conduct analyses that would bring criticism to the jail system itself. In 2008, an eighteen-​year-​old adolescent named Christopher Robinson was beaten to death in his cell.1 His death revealed a high incidence of jaw and hand injuries at the time, and together with the circumstances of this young man’s death, helped to establish the mandate that we not only implement an electronic medical record (EMR) for care of patients, but also that we make significant modifications to allow for surveillance and analysis regarding abuse and neglect.2 The process of modifying and implementing the EMR would take several years due to use in 12 facilities, by 1,200 health staff caring for approximately 75,000 annual admissions and providing a wide spectrum of care ranging from emergency department and infirmary to physical therapy, dental, mental health, and addiction services.3 As the EMR was being modified and implemented, we undertook a large-​scale analysis of over 4,000 paper injury reports to better understand how often and under what circumstances our patients were being injured.4 The data from this analysis would set the stage for our analyses with the EMR focused on solitary confinement. As the New York City correctional health services implemented our EMR, solitary confinement was a prominent feature of jail custodial practice. Our injury analyses revealed that up to 25% of adolescents were exposed to solitary confinement and our surveillance of acts of self-​harm revealed that both solitary confinement and incidence of self-​harm were increasing in 2011–​ 2013. During this time, the New York City Department of Correction operated a solitary confinement unit specifically for punishment of detainees with mental illness, many of whom had serious mental illnesses. Patients housed in this unit fared poorly, and high rates of violence and self-​harm led us in the health service to seek that the unit be eliminated in favor of a more therapeutic approach.5 In pursuit of this objective, we assembled a team to conduct the nation’s first large-​ scale analysis of self-​harm and solitary confinement in a jail setting. Because 1 H. Venters, Life and Death in Rikers Island (Baltimore: Johns Hopkins University Press, 2019), 27. 2 S. Glowa-​Kollisch, K. Andrade, R. Stazesky, P. Teixeira, F. Kaba, R. MacDonald, Z. Rosner, D. Selling, A. Parsons, H. Venters, “Data-​Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail,” in Health and Human Rights 16, no. 1 (2014), 157–​65. 3 R. Stazesky, J. Hughes, H. Venters, “Implementation of an Electronic Health Record in the New York City Jail System” (COCHS Issue Paper, April 2012), http://​www.cochs.org/​files/​hieconf/​ implementation-​ecw-​new-​york.pdf. 4 A. Ludwig, A. Parsons, L. Cohen, and H. Venters, “Injury Surveillance in New York City Jails,” American Journal of Public Health 102, no. 6 (June 2012). 5 Venters, Life and Death, 73.

Homer Venters  175 housing area was one of the variables included in our EMR, and different clinical encounters could be identified by type (injury, self-​ harm, medication check, chronic care, etc.) along with diagnoses, age and medications, we were able to meet the request for a higher level of evidence of the harms of solitary confinement.

Myth 1: Physical harm and solitary confinement In order to address the myth that solitary confinement isn’t associated with harms to health we analyzed a cohort of all patients who entered into the jail system over a 34-​month period, which included 244,600 incarcerations.6 Records for this analysis included the jail EMR as well as a separate tracking database used regarding self-​harm. We used the outcome variables of self-​harm and high lethality self-​harm because these were clinical outcomes that were serious and also not in dispute with security staff. When an asthmatic patient set fire to his own cell and required intubation, or another hanged himself or ingested a toxic soap ball and died, the injuries were clear for all to see. Overall, self-​harm occurred in 0.05% of these incarcerations (2,182 acts, with 103 potentially fatal and 7 fatal). Within this cohort of incarcerations, 7.3% involved any exposure to solitary confinement. When the solitary and self-​harm cohorts were compared, we discovered that 53.3% of self-​harm and 45% of potentially fatal self-​harm occurred in the 7.3% of incarcerations with solitary exposure. We then used regression analysis to control for gender, age, mental health status, and length of stay and found that the self-​harm was significantly associated with solitary confinement exposure. The odds ratios for self-​harm and potential fatal self-​harm with solitary exposure were 6.89 and 6.27 respectively (within 95% CI). When we plotted the timing of self-​harm against solitary confinement, we found a pattern that is distinct from conventional understanding of self-​harm in prison settings. Traditionally, solitary confinement is thought to create psychological stress and pain that grows over time. Our data showed that in the jail setting, much of the self-​harm occurred in the run-​up to solitary confinement and also in the initial days of exposure. The histogram of self-​harm acts against day zero of solitary gives an almost normal distribution before and after. Based on discussions with patients, we interpreted this to mean that patients who were given infraction sentences of solitary confinement would take extreme actions to avoid the experience, up to and including taking their own lives.

6 F. Kaba et  al., “Solitary Confinement and Risk of Self-​Harm Among Jail Inmates,” American Journal of Public Health 104, no. 3 (2014): 442–​47.

176  Mythbusting Solitary Confinement in Jail One Rikers detainee, Jason Echevarria, was so driven to escape solitary confinement that he ingested several toxic soap balls, and because correctional officers failed to remove him from his cell, he died a gruesome and painful death as his esophagus burned and lungs were overcome with fluid.7 This case, and others like it, underscored the basic message of our data analysis; death and significant harm is associated with the practice of solitary confinement. A second aspect to this analysis was the amount of overtime utilized by correctional officers in responding to these acts of self-​harm. We conservatively estimated that for every 100 acts of self-​harm, 3,760 hours of officer escort time and 450 clinical encounters were required.8

Myth 2: Fairness/​bias in solitary confinement The second persisting myth of solitary confinement is that some standardized and fairly applied rules are used to determine who is exposed to this practice. In fact, like much of the criminal justice system, several levels of disparities by race, age, and gender bear on solitary confinement exposure. As clinical staff, we would often hear from patients that being given an infraction sentence of solitary confinement was unrelated to enforcement of jail rules and that the unfairness of the process was systematic. Some jail detainees would make public their experiences, including Kalief Browder who entered the New York City jail system at the age of sixteen, charged with stealing a backpack. Mr. Browder would spend over three years in Rikers Island and reported that beatings of detainees were routine and that even when they were harmed, detainees would be threatened with solitary confinement if they sought medical care for or otherwise reported their injuries. Charges against Mr. Browder were ultimately dropped and after he made public his experiences at Rikers and struggles with mental health caused by those experiences, he took his own life.9 As we worked to design an analysis that could reveal the disparities in solitary confinement exposure, we were also mindful that disparities likely existed in our own health services, which was very much entwined with the security service regarding solitary confinement. At the time we were working to eliminate the practice of mental health “clearance” of our patients for punishment by solitary confinement, but that practice, along with surveillance of patients for new physical and mental health problems once placed in solitary settings, was a significant area of work for our service. In order to focus on disparities in both mental health

7 Venters, Life and Death,  81–​89. 8

Kaba et al., “Solitary Confinement,” 442–​47.

9 Venters, Life and Death, 119.

Homer Venters  177 services and solitary exposure, we analyzed a cohort of first-​time jail admissions, so as to eliminate prior knowledge/​experience as a factor in these variables. We identified 45,189 records from incarcerations in 2011, 2012, and 2013 that met these criteria.10 This cohort included 46.0% who were Hispanic, 40.6% who were non-​Hispanic black, and 8.8% who were non-​Hispanic. Overall, 3.9% experienced solitary confinement (confirming our suspicions that first-​time detainees were less likely to experience solitary). Overall, 14.8% of the cohort received a mental health diagnosis, which was associated with longer average jail stays (120 versus 48  days), higher rates of solitary confinement exposure (13.1% versus 3.9%) and injury (25.4% versus 7.1%). When we focused on race, regression analyses revealed that blacks and Hispanics were more likely than whites to experience solitary confinement (odds ratios = 2.52 and 1.65 respectively, within CI 95%) and less likely than whites to receive a mental health diagnosis (Odds ratios = 0.57 and 0.63 respectively, within 95% CI). As with the original solitary study, we then turned to the timing of these variables. Our clinical experience was that coming into the mental health service early in detention was more likely to represent a true health encounter, meaning that the health professional and patient were interacting in the interests of the patient, discussing how to identify and treat health concerns. Later in detention, encounters (and new mental health diagnosis) often occurred because of the requirement for solitary confinement “clearance” a practice that is neither scientific nor driven by any accepted medical standards. For patients who entered the mental health service later in detention and who also experienced solitary confinement, we constructed a histogram of first mental health diagnosis very similar to that which we observed in the original solitary analysis regarding self-​harm; their entry into mental health services was grouped right around the day of entry to solitary confinement. Taken together, these findings indicate that some patients in the jail system elicit a treatment response from the correctional health service, and that others elicit a punishment response from the security service, and that race is important in predicting which cohort detainees find themselves. In response, we sought funds to implement orientation and training for our health staff regarding addressing disparities in correctional health care delivery, but a far more systematic review of custodial practices, including fairness and disparities regarding infractions, has not occurred.

10 Kaba et al., “Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service,” American Journal of Public Health (August 2015).

178  Mythbusting Solitary Confinement in Jail

Myth 3: Lack of safe alternatives to solitary confinement The third myth about solitary confinement is that there are no safe alternatives. At the time we advocated for abandoning solitary confinement in the New York City jail system, we placed initial focus on persons with serious mental illnesses and on adolescents. While our data indicated that all persons were at risk from exposure to solitary confinement, our initial analysis of solitary confinement identified these two groups as having independent (non-​solitary confinement) risk factors for self-​harm. Our original analysis was prompted by a policy disagreement about whether or not to expand the practice of solitary confinement for persons in the jail system with mental illness. Our clinical experience and data revealed that patients fared poorly from exposure in these settings, which led to additional infractions and other rules violations, leading to compounding sentence lengths and a clogged and ineffective punishment apparatus. We reported the example of a patient who once transferred into a solitary confinement cell, engaged in self-​harm by cutting his own wrists by breaking off part of a sprinkler head. This patient received more jail infractions and financial charges as a result of his actions, despite a clear indication that his actions were driven by a mental health exacerbation. As we gathered data on the health risks and inequities in solitary confinement, we were simultaneously working together with security staff to design alternative units that could provide a more therapeutic setting. These units were called Clinical Alternatives to Punitive Segregation (CAPS) units, and entry was designed to include clinical staff identification of patients who needed this level of care after an infraction had occurred.11 These units would provide a wide range of clinical services, including traditional one-​on-​one therapy with psychologists and psychiatrists, group therapy with psychologists and social workers, and art therapy and eventually, movement therapy, writing, and yoga. One of the critical elements in these units, gathered from inpatient mental health settings, was the role of mental health technicians who would always be on the units and provide guidance and support to patients in getting to activities, managing low-​level conflicts, and general unit management. We would subsequently design and implement several units designed to provide a similar level of care before (or without) any infraction consideration. The first CAPS unit had a capacity of approximately eighteen patients at any time and many of the initial CAPS patients were being transferred from solitary confinement settings into a unit where most of their daytime hours were spent outside cells. Access to the many activities and 11 S. Glowa-​Kollisch, F. Kaba, A. Waters, Y. J. Leung, E. Ford, and H. Venters, “From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails,” International Journal of Environmental Research and Public Health 13, no. 2 (2016): 182–​192.

Homer Venters  179 treatment modalities of CAPS was assumed. By contrast, the RHU was designed like many “solitary-​lite” units with a complex set of rules that when followed, would demanded that patients follow all the unit rules for days, often weeks, before they could begin receiving additional hours out of solitary. Other patients, who didn’t meet the entry criteria for CAPS (namely that their level of mental illness did not meet New York state’s definition of serious mental illness) were transferred into punishment units that purported to provide both clinical interventions and punishment through graded isolation, but in fact, functioned much like a solitary confinement setting. Those units, called restrictive housing units (RHU) would ultimately be disbanded but represent a very common “alternative” approach to solitary confinement in which compliance with a complicated set of rules can earn modest reductions in daily or weekly isolation time.12 Our initial review of the impact of CAPS included 195 patients who had passed through in the initial 15 months, as well as 1,433 who passed through RHU. A total of ninety patients were housed in both CAPS and RHU during this time. A central finding from this analysis was that the RHU unit was associated with the highest rate of verified injury of all units. Another important lesson from CAPS unit is that it cost approximately $1.5 million per year to run, mostly from staffing of additional health professionals. By contrast, the RHU units were less than half the cost, owing mostly to the basic reality that they resemble solitary confinement, with much less access to therapeutic or recreational activities and staff. As we expanded the CAPS model to more units, we also documented reductions in use of force of 52% and increases in medication compliance of 40% over traditional units.13 The cost and complexity of establishing this approach make it a difficult endeavor and should serve as a general caution against incarceration of persons with serious mental illness.

Barriers to further progress The main barrier to futher progress is lack of data. Many of the improvements in health services and alternatives to solitary confinement were crafted using the evidence of the specific harms that solitary and other practices caused to our patients. In many jail settings, EMRs are not utilized or, if present, are not capable of producing aggregate reports to reflect health outcomes associated with solitary confinement and other custodial practices. This lack of information about 12 B. Lee and J. Gilligan, “Report to the New York City Board of Correction” (September 5, 2013), https://​solitarywatch.org/​wp-​content/​uploads/​2013/​11/​Gilligan-​Report.-​Final.pdf. 13 Office of the Mayor of New York City, “Mayor de Blasio to Triple Intensive-​Care Mental Health Units on Rikers Island,” press release, April 26, 2016, https://​www1.nyc.gov/​office-​of-​the-​mayor/​ news/​394-​16/​mayor-​de-​blasio-​triple-​intensive-​care-​mental-​health-​units-​rikers-​island.

180  Mythbusting Solitary Confinement in Jail solitary confinement is compounded in jail settings, where housing areas or isolated cells are often used to lock in detainees for more than twenty-​two hours per day without being designated as either punitive or administrative segregation. A prime example is the recent expansion of “safety cells,” which are nominally designated as mental health cells, but where patients in the throes of a wide variety of behavioral, mental health, and medical concerns are held in isolation save for fleeting encounters with health and security staff through a locked door. I have consulted on numerous deaths in these cells and they function not only as solitary confinement but in a manner doubly harmful because the label of a mental health function for these cells often hides the deterioration of patients in danger of death or disability. The proliferation of “safety cells” appears to mirror a lack of ability or willingness to secure appropriate care in a community hospital setting.14 The total footprint of areas where jail detainees are held in isolation must be established for every facility, and the health outcomes of the individuals who pass through these units, together with the stated reasons for their placement and duration is critical to cementing further abolishment of solitary confinement. This will require EMRs as well as modern jail management systems that include injury reports and infraction hearing information. The infraction process in correctional settings remains a murky and arbitrary system of punishment, as the story of Mr. Browder reveals. A second, ongoing barrier to solitary confinement is having health staff “clear” their own patients for punishment via solitary confinement. This practice is a violation of medical ethics that occurs numerous times every day in US correctional settings, but there can be no abolishing solitary confinement without removing health staff from punishment of their patients. While security services have long sought this stamp of approval from correctional health services, clearance has also been erroneously championed in litigation seeking to limit solitary confinement. The World Medical Association’s policy on solitary confinement includes the following very clear admonition: Physician’s role is to protect, advocate for, and improve prisoners’ physical and mental health, not to inflict punishment. Therefore, physicians should never participate in any part of the decision-​making process resulting in solitary confinement.15

14 P. St. John, “Naked, Filthy and Strapped to a Chair for 46 Hours: A Mentally Ill Inmate’s Last Days,” Los Angeles Times, August 24, 2017, https://​www.latimes.com/​local/​california/​la-​me-​jails-​ mentally-​ill-​20170824-​story.html. 15 “World Medical Association Statement on Solitary Confinement,” Adopted by the 65th WMA General Assembly (Durban, South Africa, October 2014), accessed January 25, 2019, https://​www. wma.net/​policies-​post/​wma-​statement-​on-​solitary-​confinement/​.

Homer Venters  181 The rationale for having health staff clear their own patients for punishment in solitary is that they can detect more vulnerable patients and steer them to an alternate setting. The problem with this logic is that solitary confinement brings health risks to anyone who is exposed. In addition, the act of clearance involves allowing most patients to flow into these settings, despite knowing the harm that awaits them. In many settings solitary confinement can exceed fifteen days, and the assessment of the United Nations Special Rapporteur and others that solitary confinement of more than fifteen days may constitute torture or cruel and unusual punishment underscores that clearance for solitary is often clearance for torture.16 When health professionals clear individual patients for solitary confinement, they are not acting in the best interests of their patients, but instead take on the role of punishing the very patients they are charged with caring for. This security pressure on the role of health providers is a potent example of dual loyalty. Our own efforts to assess the scope and impact of dual loyalty pressures led us to develop a system to detect and mitigate dual-​loyalty concerns with our staff through patient interviews, records reviews, staff focus groups, and development of a universal dual-​loyalty training program.17 One dual-​ loyalty training scenario involved clearance for solitary confinement, and one provider reported, “This is very personally distressing to me and situations like this leave me with a negative impression of the work I do and my workplace.” In addition, the clearance process occurs at the very moment that security staff are seeking to punish an incarcerated person and invokes the profound power dynamic between health and security staff. One response in our dual-​loyalty trainings indicated that the actions of the health provider would “[d]‌epend on how intimidating the DOC officer is” while another reported, “Part of dual loyalty is threats from DOC if we go above and beyond to protect a patient. We are then in a position that the officer may take ‘extra-​long’ to respond to medical staff being assaulted by patient.” An important distinction should be made between clearing patients into solitary and monitoring them once placed there for health crises that require transfer to high levels of care. This second process is entirely ethical and needed throughout correctional settings because of the loss of autonomy and exposure to health risks that our patients experience.

16 J. Mendez, Preface to Sourcebook on Solitary Confinement, ed. S. Shalev (London: Mannheim Centre for Criminology, London School of Economics, 2014), http://​solitaryconfinement.org/​ uploads/​JuanMendezPrefaceSourcebookOnSolitaryConfinementTranslation2014.pdf. 17 S. Glowa-​Kollisch, J. Graves, N. Dickey, R. MacDonald, Z. Rosner, A. Waters, and H. Venters, “Data-​Driven Human Rights:  Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail,” Health and Human Rights. Online ahead of print (March 12, 2015).

182  Mythbusting Solitary Confinement in Jail

Summary Dispelling the myths of solitary confinement is essential to adopting more humane and effective custodial practices. Although most of the attention to solitary confinement has involved prison settings, far more people are exposed to solitary confinement in jail or other pre-​trial settings where the profile of use and harm to health is unique. By crafting several analyses of health outcomes in the New York City jails, the correctional health service was able to report data that shows the heath harms of solitary confinement, the racial disparities involved in its use, and the effectiveness of more clinical and therapeutic alternatives. As other jail settings examine their own solitary confinement use, dispelling these myths will be critical. In addition, two additional barriers to abolishing solitary confinement include the proliferation of isolation settings that mimic the harms of solitary but with alternate labels, such as safety cells. Additionally, abolishing the practice of medical clearance is absolutely essential to securing the health of correctional heath patients, establishing the ethics of correctional health services, and abolishing solitary confinement. The clearance process serves to give a medical stamp of approval to solitary confinement. Efforts to restrict solitary confinement based on medical clearance are misguided, unethical, and ultimately serve to prop up this harmful practice.

Bibliography Glowa-​Kollisch, S., K. Andrade, R. Stazesky, P. Teixeira, F. Kaba, R. MacDonald, Z. Rosner, D. Selling, A. Parsons, and H. Venters. “Data-​Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail.” Health and Human Rights 16, no. 1 (2014): 157–​65. Glowa-​Kollisch, S., J. Graves, N. Dickey, R. MacDonald, Z. Rosner, A. Waters, and H. Venters. “Data-​Driven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail.” Health and Human Rights. Online ahead of print, March 12, 2015. Glowa-​Kollisch, S., F. Kaba, A. Waters, Y. J. Leung, E. Ford, and H. Venters. “From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails.” International Journal of Environmental Research and Public Health 13, no. 2 (2016): 182–​192. Kaba, Fatos, Angela Solimo, Jasmine Graves, Sarah Glowa-​Kollisch, Allison Vise, Ross MacDonald, and Anthony Waters et  al. “Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service.” American Journal of Public Health 105(9):1911–​1916 (August 2015). Kaba, F., A. Lewsi, S. Glowa-​Kollisch, J. Hadler, D. Lee, H. Alper, and D. Selling, et al. “Solitary Confinement and Risk of Self-​Harm Among Jail Inmates.” American Journal of Public Health 104, 3 (2014): 442–​47.

Homer Venters  183 Lee, B., and J. Gilligan. “Report to the New York City Board of Correction.” September 5, 2013. https://​solitarywatch.org/​wp-​content/​uploads/​2013/​11/​Gilligan-​Report.-​Final. pdf. Ludwig, A., A. Parsons, L. Cohen, and H. Venters. “Injury Surveillance in New York City Jails.” American Journal of Public Health 102, no. 6 (June 2012): 1108–​11. Mendez, J. Preface. Sourcebook on Solitary Confinement. Edited by S. Shalev. London: Mannheim Centre for Criminology, London School of Economics, 2014. http://​ solitaryconfinement.org/​uploads/​JuanMendezPrefaceSourcebookOnSolitaryConfine mentTranslation2014.pdf. Office of the Mayor of New  York City. “Mayor de Blasio to Triple Intensive-​Care Mental Health Units on Rikers Island.” Press Release. April 26, 2016. https://​ www1.nyc.gov/​office-​of-​the-​mayor/​news/​394-​16/​mayor-​de-​blasio-​triple-​intensive-​ care-​mental-​health-​units-​rikers-​island. St. John, P. “Naked, Filthy and Strapped to a Chair for 46 Hours: A Mentally Ill Inmate’s Last Days.” Los Angeles Times, August 24, 2017. https://​www.latimes.com/​local/​california/​la-​me-​jails-​mentally-​ill-​20170824-​story.html. Stazesky, R., J. Hughes, and H. Venters. “Implementation of an Electronic Health Record in the New York City Jail System.” COCHS Issue Paper, April 2012. http://​www.cochs. org/​files/​hieconf/​implementation-​ecw-​new-​york.pdf. Venters, H. Life and Death in Rikers Island. Baltimore:  Johns Hopkins University Press, 2019. World Medical Association. Statement on Solitary Confinement. Adopted by the 65th WMA General Assembly, Durban, South Africa, October 2014. Accessed January 25, 2019. https://​www.wma.net/​policies-​post/​wma-​statement-​on-​solitary-​confinement/​.

11

Social Isolation, Loneliness, and Health Louise Hawkley*

The truism that humans are social animals gains perhaps its best support by considering the consequences of social relationship deficits on mental and physical health and well-​being. As a fundamental, social isolation is considered punishment, whether in the form of “time out” or seclusion rooms for young school children, feelings of social rejection and ostracism, social exclusion from groups, and solitary confinement for prisoners and prisoners of war. Social deprivation—​ real or perceived—​has tangible health consequences. In this chapter, I review research on the links between social isolation and health, distinguish between objective and subjective isolation (i.e., loneliness), outline physiological processes that underlie the health outcomes associated with isolation and loneliness, and consider hypertension as a case study of a health condition that would theoretically be expected to be more prevalent among more isolated than less isolated adults. The case of Ashker v. Governor of California provided an opportunity to test the hypothesis that solitary confinement is associated with hypertension. I use data from the Pelican Bay State Prison to test this hypothesis, and discuss the results and their implications not only for the practice of extended periods of solitary confinement but also for the theorized causal role of loneliness and isolation in explaining health and longevity.

Health is social Over half a century ago, the World Health Organization adopted and sixty-​ one states ratified a Constitution that opened with the statement that health is a “state of complete physical, mental and social well-​being and not merely the absence of disease or infirmity.”1 However, only recently have researchers, policy-​makers, and government agencies taken seriously the call to consider the



*

Senior Research Scientist, NORC at the University of Chicago.

1

World Health Organization, “Basic Documents,” 48th ed. (Geneva, Switzerland: World Health Organization, 2014), accessed July 4, 2018, http://​apps.who.int/​gb/​bd. Louise Hawkley. Social Isolation, Loneliness, and Health In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0011

186  Social Isolation, Loneliness, and Health “social determinants of health.”2 Generally understood as access to good quality social resources (e.g., education, health care, housing, transportation), social determinants include social relationships that provide support, camaraderie, and a sense of belonging. By broadening the widely accepted medical model of health to include social (as well as functional and sensory) domains, researchers have shown that feelings of isolation (also known as loneliness) and related indicators of social well-​being are more important than medical diagnoses such as cancer or health behaviors such as smoking in identifying individuals at higher risk of mortality.3 Social isolation takes a variety of forms, but the consequences for health appear uniformly negative. A review and meta-​analysis of 148 studies representing more than 308,000 individuals found that a smaller social network, fewer social contacts, less frequent social activities, lack of a spouse, or simply feeling isolated or lonely increases the risk of mortality. Conversely, active social relationships were associated with significantly longer life expectancy, a survival benefit that was amplified for those with active relationships across all of the foregoing domains of social integration.4 In comparison to traditional risk factors, a relative lack of social relationships exerted a risk equivalent to if not greater than what has been reported for smoking, alcohol consumption, physical inactivity, and being overweight.5 At least four additional studies conducted since then, including one by our research group,6 have replicated these effects, with social isolation or loneliness predicting mortality in the United States and the United Kingdom.7 One of these was an especially large study that estimated the risk for mortality associated with 2 For example, https://​www.healthypeople.gov/​2020/​topics-​objectives/​topic/​social-​determinants-​ of-​health, accessed July 4, 2018. 3 M. K. McClintock, W. Dale, E. O. Laumann, and L. Waite, “Empirical Redefinition of Comprehensive Health and Well-​Being in the Older Adults of the United States,” Proceedings of the National Academy of Sciences 113, no. 22 (May 2016): E3071, https://​www.pnas.org/​content/​113/​22/​ E3071. 4 J. Holt-​Lunstad, T. B. Smith, and J. B. Layton, “Social Relationships and Mortality Risk:  A Meta-​analytic Review,” PLoS Medicine 7, no. 7 (2010):  e1000316, https://​doi.org/​10.1371/​journal. pmed.1000316. 5 Id.; J. S. House, K. R. Landis, and D. Umberson, “Social Relationships and Health,” Science 241, no. 4865 (1988): 540–​45. 6 Y. Luo, L. C. Hawkley, L. J. Waite, and J. T. Cacioppo., “Loneliness, Health, and Mortality in Old Age: A National Longitudinal Study,” Social Science & Medicine 74, no. 6 (March 2012): 907, https://​ www.ncbi.nlm.nih.gov/​pubmed/​22326307. 7 T. J. Holwerda et  al., “Increased Risk of Mortality Associated With Social Isolation in Older Men: Only When Feeling Lonely? Results from the Amsterdam Study of the Elderly (AMSTEL),” Psychological Medicine 42 (2012): 843; M. Pantell et al., “Social isolation: A Predictor of Mortality Comparable to Traditional Clinical Risk Factors,” American Journal of Public Health 103 (2013): 2056; C. M. Perissinotto, I. S. Cenzer, and K. E. Covinsky, “Loneliness in Older Persons: A Predictor of Functional Decline and Death,” Archives of Internal Medicine 172 (2012):  1078; A. Steptoe et  al., “Social Isolation, Loneliness, and All-​Cause Mortality in Older Men and Women,” PNAS 110 (2013): 5797.

Louise Hawkley  187 social isolation in a representative sample of 16,849 noninstitutionalized civilian US adults, and explicitly compared this risk with that of traditional clinical risk factors exhibited by the individuals in the study.8 Social isolation was quantified by summing the number of domains in which adults were lacking social integration: being unmarried, having infrequent social contact, participating infrequently in religious activities, and lacking club or organization affiliations. The results were clear: the greater the degree of social isolation, the worse the survival rate. Moreover, the mortality risk associated with social isolation was similar to the risk associated with smoking and greater than the risk associated with obesity, high blood pressure, and high cholesterol. Extensions of this research have found that risk of mortality is increased significantly and equivalently for those who are objectively socially isolated, live alone, or feel lonely.9 In sum, research to date shows a robust association between social isolation and mortality that is at least as large as traditional risk factors that receive much clinical and epidemiological attention.

Physiological processes and social isolation As alluded to above, social isolation can be determined objectively by quantifying number of relationships, frequency of social contact and interaction, living arrangements (living alone versus with others), and degree of participation in social activities such as volunteering, group engagements, and religious service attendance. Social isolation is also a subjective state, and researchers refer to perceived social isolation as loneliness. Loneliness, defined as a perceived discrepancy between actual and desired social relationships, can be quantified using standardized multi-​item scales to assess degree of felt connectedness to others, from very connected to not at all connected (i.e., very lonely). Much of the research on the physiological effects of social isolation has centered on perceived isolation, or loneliness. For instance, the hypothalamic-​ pituitary-​ adrenocortical (HPA) “stress” system responsible for regulating cortisol, a hormone necessary to mobilize the body’s energy resources, shows evidence of dysregulation in lonelier relative to less lonely individuals.10 In 8 M. Pantell et al., “Social Isolation: A Predictor of Mortality Comparable to Traditional Clinical Risk Factors,” American Journal of Public Health 103 (2013): 2056. 9 J. Holt-​Lunstad et al., “Loneliness and Social Isolation as Risk Factors for Mortality: A Meta-​ Analytic Review,” Perspectives on Psychological Science 10, no. 2 (2015): 227, https://​doi.org/​10.1177/​ 1745691614568352. 10 S. D. Pressman et al., “Loneliness, Social Network Size, and Immune Response to Influenza Vaccination in College Freshmen,” Health Psychology 24 (2005): 297–​306; E. K. Adam et al., “Day-​to-​ Day Dynamics of Experience-​Cortisol Associations in a Population-​Based Sample of Older Adults,” PNAS 103 (2006): 17058; A. Steptoe et al., “Loneliness and Neuroendocrine, Cardiovascular, and

188  Social Isolation, Loneliness, and Health one study, lonelier middle-​to older-​age adults exhibited higher early morning and late-​night levels of circulating cortisol, and larger increases in salivary cortisol during the first thirty minutes after awakening. In a study of adults over the age of sixty years, in contrast, loneliness was associated with a smaller increase in salivary cortisol after awakening. This inconsistency may be due to the latter study choosing to measure cortisol sixty minutes instead of thirty minutes after awakening, a time in the diurnal cycle when cortisol levels are returning or have returned to lower basal levels. Both studies, however, are consistent in showing that alterations in HPA functioning are susceptible to feelings of loneliness. Other research has shown that cortisol levels, which typically decrease over the weekend relative to working days, are perpetually higher in lonely than nonlonely individuals, and do not decrease on weekend days.11 Lonelier individuals also show evidence of a phenomenon known as glucocorticoid insensitivity, however, such that the same amount of cortisol may not be as effective in lonely as in nonlonely individuals.12 This is particularly important for the regulation of inflammation in the body. Cortisol is a potent anti-​inflammatory substance, and to the extent it is relatively ineffective in dampening inflammation in the body, risk is increased for inflammatory diseases such as hypertension, cardiac diseases, stroke, and diabetes. Loneliness has been associated with higher levels of markers of systemic inflammation, including interleukin-​6, fibrinogen, and C-​reactive protein.13 Moreover, proinflammatory cytokines reach the brain and induce “sickness behaviors” that include social withdrawal and result in the self-​ perpetuation if not exacerbation of loneliness.14 Research indicates that the cardiovascular system is vulnerable to the impact of social isolation and loneliness. In a sample of middle-​and older-​age adults, loneliness was associated with significantly higher blood pressure at study onset, and with larger increases in blood pressure over a four-​year follow-​up, such that at the end of the follow-​up period, people with the most intense and persistent feelings of loneliness had systolic blood pressure (SBP) readings that were as Inflammatory Stress Responses in Middle-​Aged Men and Women,” Psychoneuroendocrinology 29, no. 5 (2004): 593–​611. 11 H. Okamura, A. Tsuda, and T. Matsuishi, “The Relationship Between Perceived Loneliness and Cortisol Awakening Responses on Work Days and Weekends,” Japanese Psychological Research 53 (2011): 113. 12 L. C. Hawkley et  al., “Effects of Social Isolation on Glucocorticoid Regulation in Social Mammals,” Hormones & Behavior 62 (2012):  314; S.W. Cole, “Social Regulation of Leukocyte Homeostasis: The Role of Glucocorticoid Sensitivity,” Brain Behavior & Immunity 22 (2008): 1049. 13 P. V. Nersesian et  al., “Loneliness in Middle Age and Biomarkers of Systemic Inflammation:  Findings from Midlife in the United States,” Social Science & Medicine 209 (2018): 174–​81, https://​doi.org/​10.1016/​j.socscimed.2018.04.007. 14 N. Xia and H. Li, “Loneliness, Social Isolation, and Cardiovascular Health,” Antioxidants & Redox Signaling 28, no. 9 (2018): 837–​51, https://​doi.org/​10.1089/​ars.2017.7312.

Louise Hawkley  189 much as fourteen points higher than the least lonely individuals.15 The extent of this increase can move a person from normotension to a diagnosis of hypertension in a period of five years (e.g., from an SBP of 130 mm Hg to an SBP of 144 mm Hg, above the hypertension criterion of 140 mm and more). In other words, faster rates of increase in SBP translate into higher rates of clinical hypertension at a younger age. The development of hypertension is medically important because hypertension damages blood vessels and the heart, thereby increasing risk for serious cardiovascular health problems. Indeed, social isolation and loneliness are associated not only with elevated blood pressure but also with other cardiovascular conditions, including coronary heart disease and stroke.16 In addition, although most research has examined the association between social isolation and all-​ cause mortality, some research has examined and found an association between social isolation and cardiovascular mortality in particular.17 Thus, to the extent that social isolation increases risk for hypertension, it also increases risk for serious cardiovascular disease and mortality. Moreover, the earlier the onset of hypertension, the earlier the development of serious cardiovascular conditions and subsequent mortality.

Social isolation and blood pressure People can feel lonely despite an ostensibly rich social life, and others do not feel lonely despite relatively few social relationships (e.g., introverts). This helps to explain why objective isolation and loneliness are only moderately correlated. However, loneliness is strongly associated with objective social isolation in circumstances where one has limited choice in when and with whom to interact (e.g., placement in nursing homes for the elderly). Imprisonment that entails severe restrictions on social contact with the outside world and severely restricts the social interactions between prisoners would be expected to result in intense feelings of loneliness. Support for this prediction was provided by Craig 15 L. C. Hawkley et al., “Loneliness Predicts Increased Blood Pressure: Five-​Year Cross-​Lagged Analyses in Middle-​Aged and Older Adults,” Psychology & Aging 25 (2010): 132. 16 N. K. Valtorta et  al., “Loneliness and Social Isolation as Risk Factors for Coronary Heart Disease and Stroke: Systematic Review and Meta-​analysis of Longitudinal Observational Studies,” Heart 102, no. 13 (July 2016): 1009, https://​doi.org/​10.1136/​heartjnl-​2015-​308790; R. C. Thurston and L. D. Kubzansky, “Women, Loneliness, and Incident Coronary Heart Disease,” Psychosomatic Medicine 71 (2009): 836; J. Tomaka, S. Thompson, and R. Palacios. “The Relation of Social Isolation, Loneliness, and Social Support to Disease Outcomes Among the Elderly,” Journal of Aging and Health 18 (2006): 359. 17 P. M. Eng et al., “Social Ties and Change in Social Ties in Relation to Subsequent Total and Cause-​Specific Mortality and Coronary Heart Disease Incidence in Men,” American Journal of Epidemiology 155 (2002): 700.

190  Social Isolation, Loneliness, and Health Haney, in Chapter 8 of this volume, who quantified feelings of loneliness using the UCLA Loneliness Scale in two groups of long-​term prisoners in Pelican Bay State Prison—​those in the Security Housing Unit (SHU) and those in the gen­ eral population. In the American adult population, loneliness levels range from 30 to 40. In the prisoners Dr. Haney interviewed, loneliness levels averaged 41.6 for prisoners in the general population and an astounding 54.9 for prisoners in the SHU. Prior research showing an association between loneliness and high blood pressure led to the prediction that hypertension rates in the SHU would be significantly higher than in the general prison (GP) population. This prediction was borne out, as is described next.

Data and analyses Plaintiffs’ counsel in the Ashker v. Governor of California litigation forwarded to me four data files that were provided by the California Department of Corrections and Rehabilitation (CDCR). The first two data files listed all prisoners incarcerated at the Pelican Bay State Prison in California who were receiving care for at least one chronic condition: (1) in the GP (283 prisoners); and (2) in the SHU (343 prisoners). The file also provided their dates of birth, illness diagnosis, whether they have a physical disability, whether they have a learning disability, and variables indicating the presence of several chronic health conditions, including hypertension. The second two data files listed all prisoners who had been imprisoned for at least ten years, regardless of their health status: (1) in the GP (315 prisoners); and (2) in the SHU (246 prisoners). These data were combined into a single file, aligned on prisoner identification number (i.e., CDCR number) that was then used to prepare the data for analyses. The final file contained data for 1,025 prisoners. The prisoners ranged in age from twenty-​seven to seventy-​one years old. Preliminary analyses revealed that the SHU population is significantly older on average than the GP population (44.5 versus 37.6 years). Analyses proceeded in two steps. First, hypertension prevalence was compared between the GP and SHU populations in the total sample. Second, to more closely match the two populations, hypertension prevalence was compared in only those prisoners who had been imprisoned for more than ten years in the GP or the SHU. Because age and some chronic health conditions increase risk for hypertension, analyses adjusted for age and health conditions that have been associated with hypertension to ensure comparability of the GP and SHU populations. The three conditions for which data were

Louise Hawkley  191 available, and which are related to hypertension, were diabetes, hepatitis, and hyperlipidemia. To ensure well-​matched populations, all analyses excluded seventy-​eight prisoners with diagnosed mental illness, as individuals with diagnosed mental illness are represented almost exclusively in the GP population because they are not permitted to be housed in the SHU. In addition, analyses excluded eight cases that were missing age information. This resulted in a final total sample of 939 prisoners, 425 in GP housing and 514 in the SHU.

Hypertension prevalence in the total sample is greater in the SHU than in the GP population In 939 prisoners, 18.4% of the GP population (78/​425 prisoners) and 48.4% of the SHU population (249/​514 prisoners) had hypertension (see Table 11.1). In other words, the SHU population had a 4.2 times greater odds of having hypertension than the GP population. This is a statistically significant population difference in hypertension prevalence. The SHU population was older than the GP population and hypertension prevalence increases with age, but age-​corrected analyses found that the difference in hypertension prevalence remained statistically significant with the SHU population having 3.9 times greater odds of having hypertension than the GP population. To examine whether SHU and GP population differences in hypertension prevalence differed across age, prisoners were categorized by age into approximately 10-​year bins: 27–​35, 36–​45, 46–​55, and 55–​71 years old. Hypertension prevalence was higher in the SHU than the GP population for each of the four age groups (see Table 11.2). The youngest age group (27–​35 years) had the largest

Table 11.1  Hypertension prevalence by prison type.1

No hypertension Hypertension Total # of prisoners 1  A

GP

SHU

Total # of prisoners

347 (81.7%) 78 (18.4%) 425

265 (51.6%) 249 (48.4%) 514

612 327 939

logistic regression showed higher odds of hypertension in the SHU than the GP, OR = 4.18 (SE = 0.64), p < .001, 95% CI: 3.10, 5.64. A logistic regression that adjusted for age showed higher odds of hypertension in the SHU than the GP, OR = 3.88 (SE = 0.65), p < .001, 95% CI: 2.80, 5.37. Age had a nonsignificantly positive association with hypertension, OR = 1.01 (SE = 0.01), p = .259, 95% CI: 0.99, 1.03.

192  Social Isolation, Loneliness, and Health Table 11.2  Hypertension prevalence, by prison type and age decade.1 Age group2 Age 27–​35

GP 36 (17.5%)

# of prisoners Age 36–​45

206 24 (15.3%)

# of prisoners

157

Age 46–​55

14 (25.9%)

# of prisoners

54

Age 55–​71

4 (50.0%)

# of prisoners Total # of prisoners

8 425

SHU

Total # of prisoners

35 (62.5%) 56

262

108 (44.1%) 245

402

70 (42.9%) 163

217

36 (72.0%) 50 514

58 939

1 

A logistic regression showed a significant interaction between age group and prison population type only for 46–​55 year-​olds relative to 27–​35 year-​olds, p = .007. Specifically, the population difference in hypertension rates was lower in 46-​to 55-​year-​old prisoners than in their 27-​to 35-​year-​old counterparts, but SHU and GP population differences in hypertension in the 36- ​to 45-​year-​olds and 55-​to 71-​year-​olds did not differ significantly from rates in the 27-​to 35-​year-​olds, p > .16. 2  Age groups started at age 27 and ended at age 71 because the age range of prisoners in the data ranged from 27 to 71 years.

difference; about 63% of the SHU population in this age group had hypertension as opposed to only 18% of the corresponding age group in the GP population. A statistical test revealed that this difference was significantly larger than the difference in the 46-​to 55-​year-​old age group but no other age groups differed significantly in hypertension prevalence relative to the youngest age group.

Hypertension prevalence in the sample of prisoners imprisoned ten or more years is greater in the SHU than the GP population Among prisoners who had been imprisoned ten years or more, 11.2% of the GP population (32/​285) and 25.7% of the SHU population (63/​245) had hypertension (see Table 11.3). In those imprisoned ten years or more, the odds of hypertension were 2.7 times greater in the SHU prisoners than the GP prisoners. The age-​corrected odds were 1.5 times (i.e., 50%) greater in the SHU than the GP population, a sizeable effect that, although not statistically significant (in large

Louise Hawkley  193 Table 11.3.  Hypertension prevalence in prisoners imprisoned for 10 or more years, by prison type.1

No hypertension Hypertension Total # of prisoners

GP

SHU

Total # of prisoners

253 (88.8%) 32 (11.2%) 285

182 (74.3%) 63 (25.7%) 245

435 95 530

1 

A logistic regression showed significantly higher odds of hypertension in the SHU than in the GP population, OR = 2.74 (SE = 0.65), p < .001, 95% CI: 1.72, 4.36. A logistic regression that adjusted for age showed nonsignificantly higher odds of hypertension in the SHU than the GP, OR = 1.52 (SE = 0.40), p = .116, 95% CI: 0.90, 2.56. Age had a significant positive association with hypertension, OR = 1.08 (SE = 0.02), p < .001, 95% CI: 1.05, 1.12. A logistic regression that adjusted for age and the presence of asthma, diabetes, hepatitis, and hyperlipidemia showed significantly higher odds of hypertension in the SHU than in the GP population, OR = 2.22 (SE = 0.69), p = .01, 95% CI: 1.21, 4.11. Age had a significant positive association with hypertension, OR = 1.04 (SE = 0.02), p = .036, 95% CI: 1.002, 1.08. Diabetes was perfectly correlated with hypertension; all of the individuals with diabetes also had hypertension. Hepatitis had a significant positive association with hypertension, OR = 2.78 (SE = 1.09), p = .009, 95% CI: 1.29, 6.01. Hyperlipidemia also had a significant and large positive association with hypertension, OR = 16.02 (SE = 12.9 6), p = .001, 95% CI: 3.28, 78.16.

part because of the small sample size), is large from a practical perspective.18 Fifty percent greater odds of hypertension associated with social isolation exceeds the odds associated with being overweight, for example, and is consistent with the research that found that the effect of social isolation on mortality risk exceeded that of traditional risk factors such as being overweight. Hypertension is not the only health condition with which prisoners are diagnosed, and differences in their overall health status will generally affect their likelihood of having hypertension independently of social isolation. Diabetes was present in ten prisoners, hepatitis in forty-​eight prisoners, and hyperlipidemia in twenty-​one prisoners. After adjusting for each of these conditions and for age, the corrected odds of hypertension were 2.2 times higher in the SHU than the GP population, a difference that was statistically significant. These results suggest that the social isolation experienced by the SHU population increases the likelihood of having hypertension over and above the increased the odds of hypertension associated with other health conditions from which these prisoners suffer. 18 By way of comparison, the touted effects of aspirin for reducing the odds of subsequently suffering a heart attack or death are small by comparison; relative to placebo users, aspirin users experience a 32% reduction in heart attack and a 15% reduction in mortality. J. He et al., “Aspirin and Risk of Hemorrhagic Stroke: A Meta-​Analysis of Randomized Controlled Trials,” Journal of the American Medical Association 280 (1998): 1930.

194  Social Isolation, Loneliness, and Health An examination of hypertension prevalence by age category revealed that the SHU population had consistently higher hypertension prevalence than the GP population across all age groups, and the magnitude of the difference did not differ among age groups. However, as shown in Table 11.4, some of the age groups were poorly represented by GP prisoners (6 who were 55–​71 years old) or SHU prisoners (5 who were 27–​35 years old), or were small in size overall (only 34 prisoners were 55–​71  years old), precluding definitive conclusions. More reliance can be placed on the findings observed in the largest age group, 243 individuals aged 36–​45 years. In this age group, 20% of SHU prisoners had hypertension as opposed to 11% in the GP population. This effect is substantively important—​most people who get hypertension develop the condition in their fifties and sixties. That a much larger percentage of the SHU population in the 36–​45 year old age group had developed hypertension suggests that social isolation itself, and not simply the aging process, is contributing causally to the increased hypertension. Table 11.4  Hypertension prevalence in prisoners imprisoned for ten or more years, by prison type and age decade.1 Age group2

GP

SHU

Age 27–​35

6 (5.4%)

1 (20.0%)

# of prisoners Age 36–​45 # of prisoners

111 14 (11.2%) 125

5

118

10 (23.3%)

23 (24.5%)

# of prisoners

43

94

# of prisoners Total # of prisoners

2 (33.3%) 6 285

116

24 (20.3%)

Age 46–​55

Age 55–​71

Total # of prisoners

243

137

15 (53.6%) 28 245

34 530

1 

A logistic regression showed nonsignificant interactions between age decade and prison population type, p’s > .26. These results signify that with each older age decade, the odds of hypertension increased equivalently in the SHU and the GP. The difference between the SHU and GP lies in the greater odds of hypertension in younger SHU than GP prisoners; the physiological effects of aging are superimposed on a higher rate of hypertension at a younger age in the SHU population. 2  Age groups started at age 27 and ended at age 71 because the age range of prisoners in the data ranged from 27 to 71 years.

Given that hypertension causes damage to the blood vessels and heart, the younger the development of hypertension, the earlier the predicted onset of

Louise Hawkley  195 more serious cardiovascular conditions such as heart disease and stroke. The substantially higher percentage of 36-​to 45-​year-​olds in the SHU who have hypertension therefore suggests that prisoners who are subjected to the severely isolating conditions of the SHU in mid-​adulthood will develop significantly earlier and higher rates of chronic and potentially fatal cardiovascular conditions later in life.

Conclusions and implications A growing body of research suggests that people who are socially isolated have increased rates of hypertension, chronic cardiovascular diseases such as heart disease and stroke, and early mortality.19 The results presented here are consistent with the overall research. The data show that hypertension is more prevalent in the highly socially isolated long-​term SHU prisoners (i.e., ten years or more) than in long-​term prisoners in the only slightly less restricted GP population, even after adjusting for the age difference between the two populations. The difference in hypertension prevalence was even greater after also adjusting for general health status and exceeded the magnitude of risk associated with being overweight, physical inactivity, and smoking. Moreover, because both groups are relatively socially isolated and the GP prisoners also reported a high degree of loneliness, although less than the SHU prisoners, the comparison of hypertension rates in these two populations may be a conservative estimate of the effect of social isolation per se, and is instead an estimate of the effect of extreme social isolation over and above the effect of the relative social isolation experienced in the GP population. There could be other differences between the populations that are associated with hypertension risk and that were not able to be considered due to the absence of data, including racial-​ethnic identity, and if, when, and how much time current GP population prisoners had spent in the SHU in the past. However, adjusting for the foregoing differences may well exacerbate the hypertension risk for SHU relative to GP prisoners. Moreover, the SHU prisoner disadvantage in hypertension risk persisted in analyses that adjusted for age and health differences. The persistence of the effect of social isolation on hypertension after statistical adjustment for a range of typical confounders indicates that social isolation is robustly related to hypertension.

19 Hawkley, “Loneliness Predicts,” 132; Valtorta, “Loneliness and Social Isolation,” 1009; Holt-​ Lunstad, “Social Relationships and Mortality Risk,” e1000316; Holt-​Lunstad, “Loneliness and Social Isolation as Risk Factors,” 227.

196  Social Isolation, Loneliness, and Health The analyses of the PBSP data not only are consistent with the overall research, but also strengthen the hypothesized causal link between social isolation and hypertension. The gold standard for causality requires random assignment to one or another condition, where the only difference between the conditions is the presence or absence of the presumed causal factor (e.g., social isolation). In the non-​ prison population, it is impossible and unethical to conduct an experiment that randomly assigns individuals to social isolation for any length of time. The situation with the SHU and GP populations, on the other hand, constitutes a natural experiment of sorts. The SHU and GP populations have highly comparable daily experiences with the exception of the much greater absence of meaningful social contact in the SHU relative to the GP population. If the prisoners assigned to the SHU have similar criminal and social backgrounds to those in the GP population, the primary difference between the two groups is the extent of their social isolation. This lends support to the idea that extreme social isolation can cause hypertension. A causal role is reinforced by the fact that hypertension prevalence in the SHU versus the GP populations differed to a greater degree in younger than older prisoners. By older age, normal age-​related physiological changes result in increased blood pressure for all adults, which could diminish or abolish the ability to detect any additional effects of social isolation. Some research has suggested that prisoners are physiologically ten to fifteen years older than their community counterparts,20 and for the SHU population, relative to the GP population, a higher probability of hypertension at a younger age may be evidence of premature physiological aging. In any event, the long-​term consequences of hypertension indicate that SHU prisoners are set on a trajectory toward early onset cardiovascular disease and mortality. Hypertension treatment, to the extent blood pressure levels are successfully controlled, ameliorates the long-​term consequences to some extent, but by the time hypertension is diagnosed, damage to the cardiovascular system, some of it irreversible, has already begun. Thus, young SHU prisoners have more serious health consequences beyond hypertension to anticipate in their future, and this future will be upon them sooner than it would if they had not been subjected to the extreme social isolation of long-​term SHU housing.

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20 R. G. Falter, “Elderly Inmates:  An Emerging Correctional Population,” Correctional Health Journal 1 (2006): 52.

Louise Hawkley  197 Cole, S. W. “Social Regulation of Leukocyte Homeostasis:  The Role of Glucocorticoid Sensitivity.” Brain Behavior & Immunity 22 (2008): 1049–​55. Eng, P. M., E. B. Rimm, G. Fitzmaurice, and I. Kawachi. “Social Ties and Change in Social Ties in Relation to Subsequent Total and Cause-​Specific Mortality and Coronary Heart Disease Incidence in Men.” American Journal of Epidemiology 155 (2002): 700–​09. Falter, R. G. “Elderly Inmates:  An Emerging Correctional Population.” Correctional Health Journal 1 (2006): 52–​69. Hawkley, L. C., S. W. Cole, J. P. Capitanio, G. J. Norman, and J. T. Cacioppo. “Effects of Social Isolation on Glucocorticoid Regulation in Social Mammals.” Hormones & Behavior 62 (2012): 314–​23. Hawkley, L. C., R. A. Thisted, C. M. Masi, and J. T. Cacioppo. “Loneliness Predicts Increased Blood Pressure:  Five-​Year Cross-​Lagged Analyses in Middle-​Aged and Older Adults.” Psychology & Aging 25 (2010): 132–​41. He, J., P. K. Whelton, B. Vu, and M. J. Klag. “Aspirin and Risk of Hemorrhagic Stroke: A Meta-​Analysis of Randomized Controlled Trials.” Journal of the American Medical Association 280 (1998): 1930–​35. Holt-​Lunstad, J., T. B. Smith, M. Baker, T. Harris, and D. Stephenson. “Loneliness and Social Isolation as Risk Factors for Mortality: A Meta-​analytic Review.” Perspectives on Psychological Science 10, no. 2 (2015): 227–​37. https://​doi.org/​10.1177/​1745691614568352. Holt-​Lunstad, J., T. B. Smith, and J. B. Layton. “Social Relationships and Mortality Risk: A Meta-​analytic Review.” PLoS Medicine 7, no. 7 (2010):  e1000316. https://​doi.org/​ 10.1371/​journal.pmed.1000316. Holwerda, T. J., A. T. Beekman, D. J. Deeg, M. L. Stek, T. G. van Tilburg, P. J. Visser, B. Schmand, C. Jonker, and R. A. Schoevers. “Increased Risk of Mortality Associated With Social Isolation in Older Men:  Only When Feeling Lonely? Results from the Amsterdam Study of the Elderly (AMSTEL).” Psychological Medicine 42 (2012): 843–​53. House, J. S., K. R. Landis, and D. Umberson. “Social Relationships and Health.” Science 241, no. 4865 (1988): 540–​45. Luo, Y., L. C. Hawkley, L. J. Waite, and J. T. “Loneliness, Health, and Mortality in Old Age:  A National Longitudinal Study.” Social Science & Medicine 74, no. 6 (March 2012): 907–​14. https://​www.ncbi.nlm.nih.gov/​pubmed/​22326307. McClintock, M. K., W. Dale, E. O. Laumann, and L. Waite. “Empirical Redefinition of Comprehensive Health and Well-​Being in the Older Adults of the United States.” Proceedings of the National Academy of Sciences 113, no. 22 (May 2016): E3071–​80. https://​www.pnas.org/​content/​113/​22/​E3071. Nersesian, P. V., H.-​R. Han, G. Yenokyan, R. S. Blumenthal, M. T. Nolan, M. D. Hladek, and S. L. Szanton. “Loneliness in Middle Age and Biomarkers of Systemic Inflammation: Findings from Midlife in the United States.” Social Science & Medicine 209 (2018): 174–​81. https://​doi.org/​10.1016/​j.socscimed.2018.04.007. Okamura, H., A. Tsuda, and T. Matsuishi. “The Relationship Between Perceived Loneliness and Cortisol Awakening Responses on Work Days and Weekends.” Japanese Psychological Research 53 (2011): 113–​20. Pantell, M., D. Rehkopf, D. Jutte, L. Syme, J. Balmes, and N. Adler. “Social Isolation: A Predictor of Mortality Comparable to Traditional Clinical Risk Factors.” American Journal of Public Health 103 (2013): 2056–​62. Perissinotto, C. M., I. S. Cenzer, and K. E. Covinsky. “Loneliness in Older Persons:  A Predictor of Functional Decline and Death.” Archives of Internal Medicine 172 (2012): 1078–​83.

198  Social Isolation, Loneliness, and Health Pressman, S. D., S. Cohen, G. E. Miller, A. Barkin, B. S. Rabin, and J. J. Treanor. “Loneliness, Social Network Size, and Immune Response to Influenza Vaccination in College Freshmen.” Health Psychology 24 (2005): 297–​306. Steptoe, A., N. Owen, S. R. Kunz-​ Ebrecht, and L. Brydon. “Loneliness and Neuroendocrine, Cardiovascular, and Inflammatory Stress Responses in Middle-​Aged Men and Women.” Psychoneuroendocrinology 29, no. 5 (2004): 593–​611. Steptoe, A., A. Shankar, P. Demakakos, and J. Wardle. “Social Isolation, Loneliness, and All-​Cause Mortality in Older Men and Women.” PNAS 110 (2013): 5797–​801. Thurston, R. C., and L. D. Kubzansky. “Women, Loneliness, and Incident Coronary Heart Disease.” Psychosomatic Medicine 71 (2009): 836–​42. Tomaka, J., S. Thompson, and R. Palacios. “The Relation of Social Isolation, Loneliness, and Social Support to Disease Outcomes Among the Elderly.” Journal of Aging and Health 18 (2006): 359–​84. Valtorta, N. K., M. Kanaan, S. Gilbody, S. Ronzi, and B. Hanratty. “Loneliness and Social Isolation as Risk Factors for Coronary Heart Disease and Stroke: Systematic Review and Meta-​analysis of Longitudinal Observational Studies.” Heart 102, no. 13 (July 2016): 1009–​16. https://​doi.org/​10.1136/​heartjnl-​2015-​308790. World Health Organization. “Basic Documents.” 48th ed. (Geneva, Switzerland: World Health Organization, 2014). Accessed July 4, 2018. http://​apps.who.int/​gb/​bd. Xia, N., and H. Li. “Loneliness, Social Isolation, and Cardiovascular Health,” Antioxidants & Redox Signaling 28, no. 9 (2018): 837–​51. https://​doi.org/​10.1089/​ars.2017.7312.

12

The Brain in Isolation A Neuroscientist’s Perspective on Solitary Confinement Huda Akil*

We cannot solve our problems with the same thinking we used when we created them. –​Albert Einstein

For most of known civilization, human society has struggled with how to best deal with individuals who represent a serious threat to the group as a whole or to some of its specific members. The creation of incarceration and other means of confinement dates back at least to Babylonian times (e.g., the Code of Hammurabi, 1750s BC), while the prison system as currently known in the Western world is thought to have emerged in the sixteenth century in England and the Netherlands and spread to the rest of Europe in the seventeenth century.1 Incarceration in prisons has become part of the justice system in almost all cultures—​as a means of societal protection, a tool for punishment, an approach to reform, or some combination thereof. While less brutal than some other historical approaches to controlling behavior, such as torture and public execution, it is still subject to many abuses. As a uniquely human invention, incarceration has not evolved nearly as much as other approaches to human social functioning. Contrasted with how we have rethought and invented new strategies for human communication, travel, entertainment, information, and education, the principles and forms of incarceration appear to have remained relatively static, at * PhD; Gardner Quarton Distinguished University Professor of Neuroscience and Psychiatry and Co-​Director, Molecular & Behavioral Neuroscience Institute (MBNI), University of Michigan. Dr. Akil together with Dr. Stanley J. Watson and their colleagues have made seminal contributions to the understanding of the brain biology of emotions, including pain, anxiety, depression, and substance abuse. She and her collaborators provided the first physiological evidence for a role of endorphins in the brain, and showed that endorphins are activated by stress and cause pain inhibition. 1 N. Morris and D. J. Rothman, eds., The Oxford History of the Prison: The Practice of Punishment in Western Society (New York:Oxford University Press, 1998), chap. 2; P. Spierenburg, The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe (Crime, Law, and Deviance) (New Brunswick, NJ: Rutgers University Press, 1991). Huda Akil. The Brain in Isolation In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0012

200  The Brain in Isolation least in the United States, and in spite of the efforts of many legal scholars, social scientists, reformers, politicians, and others in considering more humane and possibly more effective approaches to this form of justice. The time seems ripe to more actively deploy our knowledge about human behavior and bring it to bear on this challenging problem by integrating information from biological, psychological, social, economic, legal, and ethical fields of relevance. The use of extended solitary confinement goes a step beyond typical incarceration of individuals inside of prison systems, and seems even more steeped in difficulties. One position might be that solitary confinement simply represents a further point on the continuum of incarceration. After all, the inmates have already lost their essential freedoms of choice and movement, and solitary confinement just adds the social isolation as a new feature. The counterargument, presented here, is that extended solitary confinement represents a unique condition that is qualitatively different from standard incarceration. Being in prolonged isolation is profoundly damaging to the isolated individual in unique ways and to a degree that could be construed to represent “cruel and unusual punishment,” which is prohibited by the Eighth Amendment of the U.S. Constitution.

Why bring neuroscience into this discussion? There already exists clear evidence of severe psychological damage resulting from solitary confinement even in contrast to the control prison population, including the induction of clinical depression, post-​traumatic stress disorder (PTSD), and other emotional disorders.2 European studies indicate that even short-​term solitary confinement, on the order of weeks, can have significant and long-​lasting effects. For example, in 1994, a thorough and multifaceted Danish study with follow-​up phases revealed that as little as four weeks of solitary confinement was sufficient to have profound and lasting consequences. Thus, prisoners in solitary confinement were twenty times more likely to be admitted to the prison hospital for psychiatric reasons relative to inmates who were not in solitary, and these negative effects persisted beyond the end of the isolation period.3 Given this immediate impact, it is hard to imagine what months and decades of such treatment can inflict on an individual. 2 The Human Rights in Trauma Mental Health Program, Mental Health Consequences Following Release from Long-​Term Solitary Confinement in California Consultative Report Prepared for the Center for Constitutional Rights (HRTMH Lab Consultative Report, Stanford University, 2017); See Haney, Chapter 8, this volume. 3 For a summary of this and other European research on this topic, see Peter Scharff Smith, “The Effects of Solitary Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation,” Corrections & Mental Health, An Update of the National Institute of Corrections (June 2011).

Huda Akil  201 However, such psychological sequelae might not be considered cruel and unusual under the Eighth Amendment as many states argue that mental harm, unlike physical harm, is subjective. We have recently described how neuroscience is being increasingly used across many facets of the law, not only in specific criminal cases but for more fundamental issues, including asking whether the infliction of mental harm can result in permanent damage to the brain thereby constituting “cruel and unusual punishment.” 4 The demonstration of significant, biological changes in the brain that would result from extended solitary confinement would counter the notion that the impact is “merely psychological.” However, there are to our knowledge no direct studies on the brains of people who have lived under extensive solitary confinement that capture the biological change induced by the isolation. This is in large part due to ethical considerations in conducting biological research on inmates, as well as several practical challenges involved in gathering data about brain functioning in the context of a prison. It is therefore necessary to make the argument indirectly, based not specifically on the prison population but rather based on a combination of basic animal research and human research that sheds light on the biology of social and physical isolation and their sequelae on brain structure and function. After all, for other types of cruelty that result in visible bodily damage, there was no requirement of direct evidence from inmates—​the US justice system accepts that deliberately breaking someone’s limb would not be an acceptable form of punishment. Should we not apply the same standard to damaging someone’s brain? The question then becomes:  Absent direct studies that evaluate the brain damage specifically incurred as a result of extended solitary confinement, is there sufficient neuroscientific evidence that would make the likelihood of brain damage compelling? This chapter argues that such a general case can indeed be made. The basis of the argument is threefold: a) The intrinsic nature of the brain and its interaction with the individual’s physical and social context; b) The known impact of some specific features of prolonged isolation (e.g., chronic stress, sensory and motor deprivation, altered circadian patterns) on the brain, and the known biological changes they induce; and c) Changes in the brain associated with the psychological consequences of solitary confinement, such as anxiety disorders and severe clinical depression.

4 Jules Lobel and Huda Akil, “Law & Neuroscience: The Case of Solitary Confinement,” Daedalus 147 (2018): 61–​75.

202  The Brain in Isolation

A broad view of brain structure of function Before embarking on discussing the literature directly relevant to solitary confinement, it would be useful to step back and consider some general features of brain function that represent the backdrop of neuroscientific thinking on this subject. The mammalian brain is the structure that orchestrates all the major functions of the body—​such as breathing, eating, drinking, sleep, metabolic control, and reproduction. As importantly, it orchestrates most of the interchange between the individual and its environment, both physical and social. As such, the brain is the primary organ for coping with the environment and meeting any changes in environmental context, be they physical or social. The task of interfacing with the environment requires active information gathering on the part of the brain—​vision, hearing, smell, taste and touch, and mapping of physical space and computing a sense of time. The interaction with the environment also requires the ability to react through motor responses, to approach or avoid a particular location, object, or individual. As importantly, it requires the ability to make choices, some pre-​wired and others learned, based on the conditions of the environment, informed by past experience. Such responses rely on the brain’s cognitive functions—​its ability to learn, store information, retrieve it, and deploy it in appropriate ways. But for any of this learning to occur, the biological machinery of the brain is critically reliant on motivation and affect. Without the drive to eat, drink, sleep, or reproduce, behavior would be neither initiated nor maintained. And without the affective valence of behavior, be it positive or negative, rewarding or punishing, no learning would take place and no future functions would be shaped. Thus, the brain can be seen as a learning biological machine that is fueled by motivation and tuned by affective valence in order to ensure the ultimate goal of adaptive responses to current conditions and the prediction of likely future demands. Importantly, the functioning and survival of an individual in its environment is hardly ever carried out in isolation. Animals and humans survive much better in social groups and have therefore evolved complex biological mechanisms for social behavior—​ranging from dominance hierarchies to affiliative and cooperative behaviors.5 These behaviors can include phenomena such as aggression, maternal and paternal behaviors, a neurobiology of compassion,6 and even, as some suggest, neural circuitry for fairness.7 Because of their adaptive survival value, 5 B. McEwen and H. Akil, “Social Neuroscience: Gene, Environment, Brain, Body,” Annals of the New York Academy of Sciences (2011). 6 M.H. Immordino-​Yang et al., “Neural Correlates of Admiration and Compassion,” Proceedings of the National Academy of Sciences of the United States of America 106, no. 19 (May 2009): 8021–​26. 7 J. Decety and K. J. Yoder, “The Emerging Social Neuroscience of Justice Motivation,” Trends in Cognitive Sciences 21, no. 1 (January 2017): 6–​14.

Huda Akil  203 social interactions have evolved to be a strong need, required for brain development and for ongoing physical and mental health, and continue to exert a direct biological impact on the brain throughout life.

The mammalian brain cares about context and remodels itself accordingly How does the brain manage this interface with the world in spite of the unpredictability of both the physical and social context? Evolution has solved the problem of controlling behavioral responses to the environment in innumerable ways. In some species, extremely complex behavior is strongly pre-​programmed and emerges when triggered, requiring little or no learning. Examples include the seasonal flight of geese, the dances of bees, and the multi-​generational journeys of monarch butterflies. But in other cases, behavior is more fluid and less programmed and therefore relies most heavily on the brain’s ability to constantly learn and remodel itself. This is often the case for primates in general and humans in particular. We are endowed with a great deal of so-​called “neuroplasticity” that enables the sculpting of our brain by experience. This ongoing shaping is especially critical early in life, but continues throughout the lifespan. It affects all facets of non-​automated behavior, including the affective and cognitive components. In many ways, neuroplasticity can be seen as a valuable “biological capital” that the brain possesses—​a resource it deploys in an ongoing manner either in adaptive ways to create more flexibility (e.g., learning to learn) or sometimes in maladaptive ways to create more rigidity (e.g., the compulsiveness of drug abuse). There is evidence that this capital is not inexhaustible—​major remodeling can abrogate the capacity for further remodeling. For example, chronic use of addictive drugs leads to significant remodeling that make it hard for other types of learning to remodel the same brain regions.8 It is important to underscore that the concept of neuroplasticity has a physical basis. The brain is made of a mix of cell types. This includes neurons that are the key elements in the assembly of neural circuits, as well as glial cells of various types that play a range of roles including brain development, communication, and maintenance of brain health. All these cell types are subject to physical remodeling as a function of the environment, leading to changes in the structure and function of specific brain circuits. For example, under increasing demand, neurons increase the number of branches as well as the number of contacts with 8 B. Kolb et  al., “Amphetamine or Cocaine Limits the Ability of Later Experience to Promote Structural Plasticity in the Neocortex and Nucleus Accumbens,” Proceedings of the National Academy of Sciences of the United States of America 100, no. 18 (September 2, 2003): 10523–​28.

204  The Brain in Isolation other neurons and glia, enhancing the likelihood of communication. Moreover, in certain areas of the human brain, such as the hippocampus, stem cells continue to be generated throughout adult life in a process termed neurogenesis.9 The birth, growth differentiation, and integration of these stem cells into brain circuitry is highly sensitive to the environment. Indeed, neurogenesis is enhanced by physical activity and environmental stimulation and is inhibited by lack of activity, deprivation, and chronic stress.10 Thus, neuroplasticity involves numerous molecular mechanisms that range from highly targeted local remodeling of a particular region of a cell all the way to the birth and growth of new cells in certain brain regions capable of neurogenesis. This capacity for remodeling is essential for survival for organisms with more complex brains, especially humans. It bears repeating that the environment strongly influences our neuroplasticity capital. Greater physical, social and intellectual activity enriches it, enabling better learning, diminishing general anxiety and buffering against stress and depression.11 By contrast, impoverished activity depletes this neuroplasticity capital, severely degrading most functions of the brain, including perceptual, motor, cognitive, and emotional capabilities. Extensive solitary confinement as practiced in many US prisons deprives individuals of the triggers of neuroplasticity by severely limiting space, movement, social, and perceptual stimulation and even access to natural light or clues about weather and seasons. I learned firsthand about some of the consequences of solitary confinement from Mr. Robert Hillary King, who had spent twenty-​nine years in solitary confinement, as described in his book, From the Bottom of the Heap.12 I met Mr. King at the American Association for the Advancement of Science (AAAS) meeting in Chicago in the winter of 2014—​we were both speakers at a symposium that was focused on the topic of solitary confinement from a variety of angles. The symposium speakers shared a dinner on the night before the event during which Mr. King had remained rather quiet. In the bitter cold, as he and I walked back the few blocks to the hotel, he asked me whether I knew where I was going because, he said, he had no idea where we were. He added, in a rather matter-​of-​ fact tone, that he used to have a good sense of direction but his years in solitary confinement had completely robbed him of that. This struck me immediately as 9 P. S. Eriksson et  al., “Neurogenesis in the Adult Human Hippocampus,” Nature Medicine 4 (1998): 1313–​17. 10 M. W. Voss et al., “Exercise and Hippocampal Memory Systems,” Trends in Cognitive Sciences (February 15, 2019). 11 B. L. Jacobs, H. van Praag, and F. H. Gage, “Adult Brain Neurogenesis and Psychiatry: A Novel Theory of Depression,” Molecular Psychiatry 5, no. 3 (May 2000): 262–​69; C. Anacker and R. Hen, “Adult Hippocampal Neurogenesis and Cognitive Flexibility—​Linking Memory and Mood,” Nature Reviews Neuroscience 18, no. 6 (June 18, 2017): 335–​46. 12 R. H. King, From the Bottom of the Heap (Oakland, CA: PM Press, 2012).

Huda Akil  205 very important and informative, and I asked him for details which he graciously shared with me. I  then wondered whether he had noticed any other physical changes during his incarceration. He said that indeed he had, and they happened surprisingly quickly. He described a rapid and profound loss of depth perception that occurred shortly after living in the tiny cell. We talked about my interpretation of these changes, and then chatted about the press conference planned for the following day. He said that he was typically asked about how he felt while incarcerated. “How do you describe that?,” he asked. “In twenty-​nine years, my feelings were all over the place.” I suggested that he might wish to share some of the descriptions of his physical changes during the press conference. The next day, when asked about his experience in solitary confinement, Mr. King focused on these symptoms and said: “Within six months I became almost totally blind, and I had to retrain my eyes by looking into the distance. Now, my geography is completely messed up. I get confused if I have to go four or five blocks, even if I know exactly where I am.13 This gave me the opportunity to comment on the underlying biology. In particular, as will be discussed below, the loss of orientation is remarkably informative because it suggests an impact on the hippocampus, the site of adult neurogenesis which is simultaneously also a key area for spatial orientation and memory. It is well established that the hippocampus can be damaged by severe and chronic stress, and one of the functional consequences of such damage might be deterioration in spatial and short-​term memory. This was of course an individual case, but there is clear evidence from systematic research that for people who are in solitary confinement, the experience is highly stressful and disorienting, typically resulting in both sensory difficulty and often severe psychiatric disorders.14 Therefore, in the remainder of this chapter, we will ask two questions: a) What does research teach us about the impact of sustained stress, loss of stimulation, social and physical impoverishment, and loss of natural daily (circadian) rhythms on the structure and function of the brain? b) Given that the outcome of solitary confinement typically involves severe depression, PTSD, anxiety disorders, and other psychiatric illnesses, what does research teach us about the brain of individuals suffering from such conditions?

13 Moheb Costandi, “The Solitary Brain,” last modified March 13, 2014, http://​dana.org/​News/​ The_​Solitary_​Brain/​. 14 See Haney, Chapter 8, this volume.

206  The Brain in Isolation The answer to these two questions will help paint a picture of the isolated brain and the severe physical and functional impact of this mode of incarceration on this critical organ.

The brain is physically and functionally altered by chronic stress, isolation, and disruption of the circadian rhythm Impact of stress on the brain The term stress is used broadly to describe a psychological state of tension or negative emotion imposed by difficult or negative conditions. Psychologists underscore the importance of a key feature that renders certain situations highly stressful: the inability to control the situation and/​or the inability to predict it. In the case of extended solitary confinement, while the environment may be highly predictable, it is also totally uncontrollable—​the individual has absolutely no leeway in changing the situation. Thus, incarcerated individuals are subjected to ongoing stress for years, sometimes decades, with no means of control. Since a major task of the brain is to compute, predict, and cope with emergent aspects of the environment, it is not surprising that there is a strong biological basis for the response to stress.15 The final outcome of this stress response is an increase in so-​called stress hormones, such as the stress steroids cortisol (in humans) and corticosterone (in rodents). Following exposure to certain stimuli—​be they novel, exciting, demanding, or threatening—​the brain rapidly computes that the situation demands an activated response. The information derived from this assessment is funneled to a region at the base of the brain called the hypothalamus. The hypothalamus uses biochemical signals to relay the information to the pituitary gland, which is located immediately below the hypothalamus. The pituitary responds by releasing a hormone that activates the adrenal gland, which in turn produces the stress steroids such as cortisol. This so-​called Hypothalamo-​Pituitary-​Adrenal Axis (or HPA axis) mediates the stress response that takes place over the course of minutes and essentially puts the organism on alert. The resulting elevation in stress steroids affects how we utilize glucose for energy, and inhibits certain functions such as the immune system while activating others to prime the organism for “fight or flight.”16 As

15 J. P. Herman et  al., “Central Mechanisms of Stress Integration:  Hierarchical Circuitry Controlling Hypothalamo-​Pituitary-​Adrenocortical Responsiveness,” Front Neuroendocrinol 24, no. 3 (July 24, 2003): 151–​80. 16 H. Selye, “A Syndrome Produced by Diverse Nocuous Agents,” Nature 138, page 32 (1936) .

Huda Akil  207 importantly, the stress steroids that are in the blood cross into the brain and have a broad-​ranging and profound impact on it. In the short term they trigger an emotional response, focus attention on the important stimulus, diminish the salience of irrelevant stimuli, and modify the selection of information that is committed to memory. This is the basis of “flashbulb memory” whereby we remember some stressful events vividly while many other contemporaneous ones fade into oblivion. But stress can also have long-​lasting effects. Stress steroids interact with steroid receptors that have the ability to bind to and affect the activity of numerous target genes. This endows them with the power to reprogram many cellular functions, not only in the short-​term as described above but also in a much more sustained way, thereby changing the brain. These steroid-​mediated changes include alterations in cell growth, cell activity, cellular remodeling and cell death. It is important to underscore that the effects of the stress hormones are not automatically negative. Indeed, the immediate response to stress is highly adapt­ ive, protective and essential for survival, and the inability to mount a robust stress response can be highly damaging.17 However, it is equally important that the stress response be swiftly terminated, specifically because of the power and broad ranging effects of the stress steroids. Negative feedback mechanisms exist in the brain, specifically in an area called the hippocampus, to rapidly inhibit the stress response. A loss of this negative feedback is very damaging and can lead to chronically elevated levels of stress steroids. This can have serious consequences on the brain and on the entire body—​including changes in mood, in memory, weight and metabolic control, immune, cardiovascular, and other functions. Dr.  Bruce McEwen has introduced the concept of “allostatic load” in relationship to chronic stress. Allostasis means maintaining equilibrium through change. The body constantly strives to return to a state of equilibrium (or homeostasis) after a perturbation. However, if the perturbations are unrelenting, the equilibrium set point needs to be altered as the system adapts and reaches “a new normal”—​hence the concept of allostasis. But allostasis can be costly: Allostatic load refers to the price the body pays for being forced to adapt to adverse psychosocial or physical situations, and it represents either the presence of too much stress or the inefficient operation of the stress hormone response system, which must be turned on and then turned off again after the stressful situation is over.18

17 J. L. Spencer-​Segal and H. Akil, “Glucocorticoids and Resilience,” Hormones and Behavior (November 24, 2018). 18 B. S. McEwen, “Allostasis and Allostatic Load: Implications for Neuropsychopharmacology,” Neuropsychopharmacology 22 (2000): 108–​24.

208  The Brain in Isolation A brain that is exposed to such a stress-​mediated allostatic load can show clear physical changes, including damage to the hippocampus. This can begin with inhibition of neuroplasticity and neurogenesis, but if extended can actually lead to a change of hippocampal volume due to shrinkage of the cell branches and cell size resulting in atrophy. The hippocampus is a brain structure that serves as nodal coordinator of numerous functions, beyond assessing and terminating the stress response. It also computes physical space and context, encodes the early stages of learning and memory, and regulates general levels of exploration and risk-​taking behavior. It is therefore implicated in sensory, motor, cognitive, and affective functions, and can be thought of as the critical interface between the brain and the environment. Thus, a damaged hippocampus can have dire consequences. Importantly, the stress-​induced changes in the hippocampus are not only seen in animal models but have been reported in humans.19 This chapter discusses the findings on hippocampal changes in human depression. Suffice it to say that being stressed and helpless to alter the situation is sufficient to cause significant physical damage to the brain, with the hippocampus being one obvious target area among many others.

Impact of isolation on the brain Social isolation is a known stressor, as social interaction is a need that is critically important for the survival of the species. In addition, the lack of physical stimulation and the inability to move and exercise are known to be stressful at the biological level. Indeed, there are decades of research using animal studies that demonstrate unequivocally that isolation represents a severely impoverished environment that alters the brain both structurally and functionally.20 Conversely, an enriched environment enhances the branching of neurons and increases the number of contacts between neighboring brain cells.21 These physical changes are accompanied by functional changes—​animals who live in more enriched environments learn and remember better, are less anxious, and are more socially interactive. Numerous studies have described changes in structure and cellular 19 B. S. McEwen, “Possible Mechanisms for Atrophy of the Human Hippocampus,” Molecular Psychiatry 2 (1997): 255–​62; B. S. McEwen, “Stress and Hippocampal Plasticity,” Annual Review of Neuroscience 22 (1999): 105–​22. 20 See Zigmond and Smeyne, Chapter 13, this volume. 21 R. A. Altschuler, “Morphometry of the Effect of Increased Experience and Training on Synaptic Density in Area CA3 of the Rat Hippocampus,” Journal of Histochemistry and Cytochemistry 27 (1979):  1548–​50; M. B. Moser, M. Trommald, and P. Andersen, “An Increase in Dendritic Spine Density on Hippocampal CA1 Pyramidal Cells Following Spatial Learning in Adult Rats Suggests the Formation of New Synapses,” Proceeding of the National Academy of Sciences of the United States of America 91 (1994): 12673–​75.

Huda Akil  209 function in the hippocampus, the very area that we have highlighted as a major player in the regulation of and response to stress. But many other areas have also been implicated, including the cortex, which is the area that exerts the most intricate and sophisticated control on perception, motor behavior, cognition, and emotion. The work described by Professors Zigmond and Smeyne in this volume is especially compelling, as it better mimics what happens to people subjected to solitary confinement—​the studies move rodents from a life-​long exposure to a rich environment towards isolation (rather than going in the other direction as was often done in previous studies). The research demonstrates that a month of isolation causes neurons to shrink in volume, and this continues to progress over time. The anatomy of individual neurons and their volumes are affected, and this is accompanied by DNA damage and a decrease in certain growth factors. Indeed, the effects described by Zigmond and Smeyne of isolation on the structure and function of the brain not only are directly relevant to human solitary confinement, but they also represent a clear instantiation of the enduring and damaging effects of chronic, inescapable stress on the very fabric of the brain. The reader is referred to Chapter 13 of this volume for an in-​depth description of this body of work.

Impact of altered circadian rhythms on the brain Part of the pattern of daily life for non-​imprisoned individuals is a rhythm in biological activity driven by natural light. The state of our bodies, including our brain, varies as a function of the hour of the day, and these changes are driven by both natural light and sleep-​wake cycles. Indeed, all cells in our body contain a molecular machinery for tracking time of day—​the so-​called circadian clock.22 But the master regulator of this biological clock resides in a sub-​nucleus of the hypothalamus (previously mentioned as part of the HPA stress axis). This master regulator, termed the suprachiasmatic nucleus of the hypothalamus (SCN), responds to natural light and synchronizes the timing of the circadian rhythm within the brain and in the other bodily organs. Being removed from natural light disrupts this light-​dependent orchestration of our bodily rhythms, disrupt sleeps, alters mood, and has numerous other physiological consequences that impact health. The impact of light can be so dramatic that alteration of sleep and

22 S. M. Reppert and D. R. Weaver, “Coordination of Circadian Timing in Mammals,” Nature 418, no. 6901 (August 29, 2002): 935–​41.

210  The Brain in Isolation rhythms has been put forth as a key strategy for mood regulation is patients suffering from bipolar mood disorder.23 As part of a large collaboration in the context of the Pritzker Neuropsychiatric Research Consortium, our research group was the first to describe the rhythmic patterns of gene activity in the normal human postmortem brain.24 We studied the activity of tens of thousands of genes across several brain regions and demonstrated that the activity of genes within brain cells oscillates daily on a twenty-​ four-​hour basis. This oscillation involved the beautifully regulated clock genes that represent the biological gears of the circadian clock. But it also included oscillations of thousands of genes in brain areas outside the hypothalamus. Interestingly, different brain regions played out their rhythms at different times of the day. The overall pattern of orchestrated activity across the brain was sufficiently distinctive that it allowed us to pin down the time of death with excellent predictability. Thus, in control (non-​depressed) subjects, the signature of the oscillations in brain activity appeared to be a time stamp, allowing us to compute the time of death within an hour of the reported time. These findings underscore the amount of energy and precision that the brain invests in linking brain activity to the environment as driven by natural light. We all get a sense of the importance of this orchestration when we travel across time zones and note the degree of disorientation, fatigue, sleep disruption, and loss of mental acuity associated with jet lag. It is well established that chronic disruption in sleep alone is highly costly to the brain. This is because sleep is not only recuperative in terms of bodily rest. It is also critical for rehearsing what the brain has experienced during the day, strengthening some of the memories, and possibly minimizing others.25 It is therefore noteworthy that individuals in extended solitary confinement are often deprived of natural light, or might be exposed to minimal amounts of it. That alone is sufficient to disrupt the functioning of the brain, both at the global and at the cellular levels. We will discuss below the evidence of change seen in human depression that is often associated with social isolation. The above section focused on describing some of the impact of the conditions externally imposed by solitary confinement—​stress, social isolation, lack of exercise, and disruption in circadian rhythms. Each of these conditions has 23 M. C. A. Melo et al., “Chronotype and Circadian Rhythm in Bipolar Disorder: A Systematic Review,” Sleepmedicine Reviews 34 (August 2017):  46–​ 58; B. G. Bunney and W. E. Bunney, “Mechanisms of Rapid Antidepressant Effects of Sleep Deprivation Therapy:  Clock Genes and Circadian Rhythms,” Biological Psychiatry 73, no. 12 (June 15, 2013): 1164–​71. 24 J. Z. Li et al., “Circadian Patterns of Gene Expression in the Human Brain and Disruption in Major Depressive Disorder,” Proceedings of the National Academy of Sciences of the United States of America 110, no. 24 (June 11, 2013): 9950–​55. 25 G. B. Feld and J. Born, “Sculpting Memory During Sleep:  Concurrent Consolidation and Forgetting,” Current Opinion in Neurobiology 44 (June 2017): 20–​27.

Huda Akil  211 independently been shown to alter the biology, structure, and functioning of the brain, leading to disrupted behavior. These conditions result into well-​established clinical changes in the population of individuals who have been isolated for an extended period. These have been well documented by psychological studies and include severe depression, PTSD, altered sensitivity to stimuli, changes in social behaviors, and many others.26 But do we understand the brain correlates of these clinical outcomes of social isolation? The next section focuses on clinical depression as one case in point.

The depressed brain is a physically unhealthy brain Since solitary confinement induces clinical depression in a large proportion of isolated individuals, it is reasonable to ask what the impact of clinical depression might be on the structure and function of the brain. The evidence in humans derives from two general classes of research. The first involves living humans who undergo various types of neuroimaging studies to examine the structure and pattern of circuit activity in their brains, comparing depressed to control subjects. The other class of studies examines the biology of the postmortem brain immediately after the death of subjects who are either psychiatrically normal or have a well-​documented history of clinical depression. While each type of work has its own advantages and limitations, they both point to significant changes in the brain associated with depression. It should be noted that the impact of the environment is very high in depression. Unlike other psychiatric disorders such as autism or bipolar disorder, the more common type of (unipolar) depression shows a lower degree of genetic heritability. Thus, heritability is estimated at 37% for unipolar depression27 versus 80% to 85% for bipolar disorder.28 This means that the triggers of major depression are primarily environmental. Indeed, there is a strong association between environmental stress and depression. Patients who suffer from this disorder often have a history of early life stress. Moreover, a psychosocial stressor is often the initial trigger of early depressive episodes. However, once they occur repeatedly, the illness takes on a life of its own and persists even in the absence of obvious external triggers. These clinical observations have led to the hypoth­ esis that the illness itself alters the brain in a way that predisposes to further 26 The Human Rights in Trauma Mental Health Program, Mental Health Consequences; see Haney, Chapter 8, this volume. 27 P. Ferentinos et al., “Familiality and SNP Heritability of Age at Onset and Episodicity in Major Depressive Disorder,” Psychological Medicine 45, no. 10 (2015): 2215–​25. 28 J. J. Barnett and J. W. Smoller, “The Genetics of Bipolar Disorder,” Neuroscience 164, no. 1 (November 24, 2009): 331–​43.

212  The Brain in Isolation vulnerability to depression. Sometimes the illness because intractable, or “treatment resistant,” leading to lifelong suffering with little medical recourse.29

Results from neuroimaging studies of depressed patients Early neuroimaging studies were critical in showing changes in various brain regions consistent with this hypothesis. In particular, the hippocampus, a major target of stress and allostatic load, showed a significant impact of depression. Compelling work from Sheline and her associates showed a strong correlation between depression and a loss of hippocampal volume. Indeed, the more days an individual has spent depressed, the smaller is his or her hippocampus.30 But the impact of the illness goes beyond the hippocampus. Ongoing studies with various imaging technologies have demonstrated abnormalities in the activity of several brain areas, all consistent with the animal work on the impact of stress in the brain. Specific areas of the cortex in particular have been strongly implicated in depression.31 Importantly, there is evidence that the interactions or connectivity between different brain regions are altered by the illness32 and different patterns of disruption in the orchestration of brain function can be seen in different clusters of depressed individuals.33 Together, these and other human neuroimaging studies demonstrate that the profound psychological suffering that accompanies clinical depression is closely related to alterations in brain structure and function. The convergence between the anatomy of human depression and the impact of chronic environmental stress on the brain is remarkable and speaks to the power of environmental conditions in changing brain biology.

29 H. Akil et  al., “Treatment Resistant Depression:  A Multi-​Scale, Systems Biology Approach,” Neuroscience and Biobehavioral Reviews 84 (January 2018): 272–​88. 30 Y. I. Sheline et al., “Hippocampal Atrophy in Recurrent Major Depression,” Proceedings of the National Academy of Sciences of the United States of America 93 (1996): 3908–​13. 31 W. C. Drevets et  al., “Subgenual Prefrontal Cortex Abnormalities in Mood Disorders,” Nature 386 (1997): 824–​27; H. S. Mayberg et al., “Deep Brain Stimulation for Treatment-​Resistant Depression,” Neuron 45 (2005): 651–​60. 32 M. D. Greicius et al., “Resting-​State Functional Connectivity in Major Depression: Abnormally Increased Contributions from Subgenual Cingulate Cortex and Thalamus,” Biological Psychiatry 62 (2007): 429–​37; Y. I. Sheline et al., “The Default Mode Network and Self-​Referential Processes in Depression,” Proceedings of the National Academy of Sciences of the United States of America 106 (2009): 1942–​47. 33 A. T. Drysdale et  al., “Resting-​State Connectivity Biomarkers Define Neurophysiological Subtypes of Depression,” Nature Medicine 23 (2017): 28–​38.

Huda Akil  213

Results from postmortem studies of human brains of depressed individuals With the advent of modern genetic and genomic technologies, it has become possible to simultaneously assess the activity of all the genes that operate within brain cells and determine patterns of their activation under different conditions. This approach, called “gene expression profiling,” provides a snapshot of which genes are either stimulated or inhibited in a particular region or cell type. By comparing the brains of depressed versus control subjects, one can ask whether depression is associated with alterations in the brain at the genetic, cellular, and molecular levels. We can also identify individual genes that are particularly disrupted and ask whether the change is meaningful or functionally relevant—​ i.e., does it contribute to the development or maintenance of the illness, or is it simply an irrelevant by-​product of the disease? Efforts from several research groups, including the Pritzker Neuropsychiatric Research Consortium, have demonstrated unequivocally that depression is associated with broad changes throughout the human brain.34 Once again, the hippocampus is especially vulnerable, but many other brain regions, including the amygdala and the frontal cortex are significantly affected. What is especially remarkable is the number of different classes of molecular and physiological mechanisms that are disrupted by the illness. The disease does not appear to be an imbalance in a single chemical or even family of chemicals. Rather, functions relating to growth, development, immune responses, and epigenetic modifications and many others are all significantly disrupted. The brain of severely depressed individuals appears systematically unhealthy, which is consistent with the difficulties encountered by many with chronic depression in reversing the illness.35 Especially noteworthy are changes in two functions: One relates to circadian regulation and the other in neuroplasticity.

34 M. H. Hagenauer et al., “Inference of Cell Type Content from Human Brain Transcriptomic Datasets Illuminates the Effects of Age, Manner of Death, Dissection, and Psychiatric Diagnosis,” PLoS One 13, no. 7 (July 17, 2018):  e0200003; B. Labonté et  al., “Sex-​Specific Transcriptional Signatures in Human Depression,” Nature Medicine 23, no. 9 (September 23, 2017): 1102–​11; S. P. Pantazatos et  al., “Whole-​Transcriptome Brain Expression and Exon-​Usage Profiling in Major Depression and Suicide:  Evidence for Altered Glial, Endothelial and ATPase Activity,” Molecular Psychiatry 22, no. 5 (May 22, 2017): 760–​73. 35 H. Akil et al., “Treatment Resistant Depression.”

214  The Brain in Isolation

Disruption of the Circadian clock in the brains of depressed humans Clinical evidence has long uncovered a very strong link between disruptions in sleep and the circadian clock and depression36 and bipolar illness.37 But direct evidence from human brains was lacking. In the study already described, where we uncovered the oscillations in the activity of genes throughout the human brain, we also examined the brains of subjects who died when clinically depressed.38 The findings were striking. While the brains of control subjects were clearly “in sync” with the time of day, based on the number of hours since sunrise, the brains of depressed people were clearly “out of sync.” While in control subjects the signature of the oscillations in brain activity provided a time stamp, accurate within an hour of the time of death, the brains of depressed people provided an inaccurate estimate of the time of death. For example, someone might die at 8:00 a.m. but his or her brain pattern would resemble a 10:00 p.m. biological rhythm. We believe that this is not because the biological circadian clock is intrinsically non-​functional, but rather because it is disrupted by the conditions surrounding depression, including depressed sleep, lack of physical exercise, and lack of social engagement. It is therefore highly likely that the conditions of solitary confinement would create a similar dysregulation of the circadian clock. But this is a two-​way street, as a dysfunctional circadian clock can profoundly alter mood, further amplifying the consequences of incarceration.

Disruption in neuroplasticity and growth factors in the brains of depressed humans Growth factors are proteins synthesized from our DNA that are critical for the growth, repair, and remodeling of various cell types in our bodies. While they operate throughout the body, they take on unique roles in the brain. Growth factors are essential during early development, guiding the timing and extent of the growth and wiring of various brain areas and circuits. But they are also critical for neuroplasticity, including the growth of new stem cells in the hippocampus 36 D. J. Kupfer, “Sleep Research in Depressive Illness: Clinical Implications—​A Tasting Menu,” Biological Psychiatry 38, no. 6 (September 15, 1995): 391–​403. 37 L. B. Alloy et al., “Circadian Rhythm Dysregulation in Bipolar Spectrum Disorders,” Current Psychiatry Reports 19, no. 4 (April 2017): 21. 38 J. Z. Li et al., “Circadian Patterns of Gene Expression in the Human Brain and Disruption in Major Depressive Disorder,” Proceedings of the National Academy of Sciences of the United States of America 110, no. 24 (June 11, 2013): 9950–​55; B. G. Bunney et al., “Circadian Dysregulation of Clock Genes:  Clues to Rapid Treatments in Major Depressive Disorder,” Molecular Psychiatry 20, no. 1 (February 2015): 48–​55.

Huda Akil  215 (neurogenesis), the enhancement of branching of brain cells to promote greater connectivity, and the general richness of the various micro-​environments in various brain niches. One can conceive of them as “brain fertilizers” that enhance various neural functions. Importantly, the balance between them is important, as some promote specific functions over others. One of the most striking changes in the brain of a severely depressed individual is the dysregulation or altered balance in several families of growth factors, with some members of a given family being low and others being high compared to healthy brains. This is the most direct evidence we have that depression and loss of neuroplasticity are closely intertwined. Moreover, there is evidence that this likely to be part of a vicious cycle, whereby depression and other types of low social engagement can lead to a suppression of neuroplasticity, and a low rate of neuroplasticity can, in turn, cause negative affect and depressed mood. Our research group has discovered that the Fibroblast Growth Factor (FGF) Family is one of the most disrupted families of molecules in human depression. This gene family includes two dozen growth factors along with receptors (molecules that transduce their effects) and other molecular partners. Several of them are either underactive or overactive in depressed brains. In order to understand the implications of these observations, we used basic research in rodents and defined the functions of some of these factors. We learned that one member of this family, FGF2, is a natural antidepressant and it is low in the brain of depressed individuals. Its counterpoint, FGF9, is pro-​depressant (i.e., increases anxiety and negative emotions) and it is elevated in the brain of depressed individuals.39 Thus, depressed humans endure a double-​edged molecular hit in that they have too little of the antidepressant molecule (FGF2) and too much of the pro-​depressant molecule (FGF9). This, along with many other changes, has significant implications for their ability to buffer negative emotions. Remarkably, a physically active, socially enriched environment specifically alters these growth factors. For example, FGF2 (the antidepressant) is enhanced by environmental complexity, and this is associated with increased neurogenesis and a decrease in anxiety behavior.40 This is then a direct example of the interplay between the environment and a specific family of molecules that remodels the brain. It shows how a deprived environment can promote molecular changes in the brain that can trigger negative emotions and moods.

39 E. L. Aurbach et  al., “Fibroblast Growth Factor 9 Is a Novel Modulator of Negative Affect,” Proceedings of the National Academy of Sciences of the United States of America 112, no. 38 (September 22, 2015):  11953–​58; C. A. Turner, S. J. Watson, and H. Akil, “The Fibroblast Growth Factor Family: Neuromodulation of Affective Behavior,” Neuron 76, no. 1 (October 4, 2012): 160–​74. 40 J. A. Perez et al., “A New Role for FGF2 as an Endogenous Inhibitor of Anxiety,” The Journal of Neuroscience 29, no. 19 (May 13, 2009): 6379–​87.

216  The Brain in Isolation This is but one of many examples of the link between impoverished environmental conditions, growth factor disruption in the brain, and changes in brain remodeling, structure, and function. And while the focus here has been on growth factors, there are many other classes of molecules that are simultaneously sensitive to an isolated environment and associated with severe depression. In sum, the empirical evidence that prolonged social isolation alters the brain molecularly, structurally, and functionally is undeniable.

Discussion This chapter makes the case that solitary confinement, especially when it is extended, represents a unique condition that is qualitatively different from standard incarceration. Moreover, this condition leads to serious and disabling physical damage—​alterations in the structure and function of the brain that raise the ethical question of cruel and unusual punishment. Given that the brain is a learning machine shaped by the environment, and given the vital importance of social context for brain health, solitary confinement offers the most impoverished and damaging conditions possible. It starves the brain from key elements essential for its healthy functioning—​visual and other perceptual stimulation, normal lighting conditions, and lack of human interactions and support. The price of such starvation is a change in fundamental biology of this very critical organ. The consequences of this neuropathology are seen plainly in the form of severe depression, increased sensitivity to stimulation, lack of affective control, or a burnt-​out, flattened affective state. The neurobiological scars caused by chronic isolation should compel us to use a very high bar to allow social isolation for any extended period, even on the order of weeks, much less years and decades. But even in extreme cases where social isolation is unavoidable, a more humane approach could include an increase in other types of input to the brain—​physical exercise, sensory and intellectual stimulation with books, better lighting conditions, and various tasks that are meaningful to the individual and that require skill and attention. Such activities may give a sense of coping and hope and change the equation. They would, at least, contribute to the neuroplasticity capital and may at least buffer the huge cost of eliminating significant social contact. Finally, while it is beyond the scope of this chapter to address the possible neural causes of certain kinds of criminal behavior, it would be reasonable to keep those in mind before extensive incarceration. An extreme example might be an individual who is violent because of a brain tumor. Clearly, removing the tumor would be more effective, and humane, than putting the individual in lifelong isolation. There are of course less obvious neurobiological reasons for

Huda Akil  217 certain types of criminal behaviors that are worthy of consideration, and such knowledge may inform the decisions surrounding the conditions of imprisonment. As is the case with most human disorders, one size does not fit all, and a more evidence-​based approach is likely to pay off in the long term, both for the individuals and for society. Such changes to the concept and conditions of incarceration are of course likely to be costly. But it may be important for us to heed the words of Nelson Mandela in Long Walk to Freedom: “A nation should not be judged by how it treats its highest citizens, but its lowest ones.” Or maybe we should think of them as the least fortunate amongst us. It would seem reasonable to deploy our hard-​ earned understanding to elevate us all.

Bibliography Akil, H., J. Gordon, R. Hen, J. Javitch, H. Mayberg, B. McEwen, M. J. Meaney, and E. J. Nestler. “Treatment Resistant Depression: A Multi-​Scale, Systems Biology Approach.” Neuroscience and Biobehavioral Reviews 84 (January 2018): 272–​88. Alloy, L. B., T. H. Ng, M. K. Titone, and E. M. Boland. “Circadian Rhythm Dysregulation in Bipolar Spectrum Disorders.” Current Psychiatry Reports 19, no. 4 (April 2017): 21. Altschuler, R. A. “Morphometry of the Effect of Increased Experience and Training on Synaptic Density in Area CA3 of the Rat Hippocampus.” Journal of Histochemistry and Cytochemistry 27 (1979): 1548–​50. Anacker, C., and R. Hen. “Adult Hippocampal Neurogenesis and Cognitive Flexibility—​ Linking Memory and Mood.” Nature Reviews Neuroscience 18, no. 6 (June 2017): 335–​46. Aurbach, E. L., E. G. Inui, C. A. Turner, M. H. Hagenauer, K. E. Prater, J. Z. Li, D. Absher et al. “Fibroblast Growth Factor 9 Is a Novel Modulator of Negative Affect.” Proceedings of the National Academy of Sciences of the United States of America 112, no. 38 (September 22, 2015): 11953–​58. Barnett, J. H., and J. W. Smoller. “The Genetics of Bipolar Disorder.” Neuroscience 164, no.1 (November 24, 2009): 331–​43. Bunney, B. G., and W. E. Bunney. “Mechanisms of Rapid Antidepressant Effects of Sleep Deprivation Therapy: Clock Genes and Circadian Rhythms.” Biological Psychiatry 73, no. 12 (June 15, 2013): 1164–​71. Bunney B. G., J. Z. Li, D. M. Walsh, R. Stein, M. P. Vawter, P. Cartagena, J. D. Barchas et al. “Circadian Dysregulation of Clock Genes: Clues to Rapid Treatments in Major Depressive Disorder.” Molecular Psychiatry 20, no. 1 (February 2015): 48–​55. Costandi, Moheb. “The Solitary Brain.” Last modified March 13, 2014. http://​dana.org/​ News/​The_​Solitary_​Brain/​. Decety, J., and K. J. Yoder. “The Emerging Social Neuroscience of Justice Motivation.” Trends in Cognitive Sciences 21, no. 1 (January 2017): 6–​14. Drevets, W. C., et al. “Subgenual Prefrontal Cortex Abnormalities in Mood Disorders.” Nature 386 (1997): 824–​27. Drysdale, A. T., L. Grosenick, J. Downar, K. Dunlop, F. Mansouri, and Y. Meng. “Resting-​ State Connectivity Biomarkers Define Neurophysiological Subtypes of Depression.” Nature Medicine 23 (2017): 28–​38.

218  The Brain in Isolation Eriksson, P. S., E. Perfilieva, T. Björk-​Eriksson, A. M. Alborn, C. Nordborg, D. A. Peterson, and F. H. Gage. “Neurogenesis in the Adult Human Hippocampus.” Nature Medicine 4 (1998): 1313–​17. Feld, G. B., and J. Born. “Sculpting Memory During Sleep: Concurrent Consolidation and Forgetting.” Current Opinion in Neurobiology 44 (2017): 20–​27. Ferentinos, P., A. Koukounari, R. Power, M. Rivera, R. Uher, N. Craddock, M. J. Owen et  al. “Familiality and SNP Heritability of Age at Onset and Episodicity in Major Depressive Disorder.” Psychological Medicine 45, no. 10 (2015): 2215–​25. Greicius, M. D., et  al. ““Resting-​State Functional Connectivity in Major Depression: Abnormally Increased Contributions from Subgenual Cingulate Cortex and Thalamus.” Biological Psychiatry 62 (2007): 429–​37. Hagenauer, M. H., A. Schulmann, J. Z. Li, M. P. Vawter, D. M. Walsh, R. C. Thompson, C. A. Turner et al. “Inference of Cell Type Content from Human Brain Transcriptomic Datasets Illuminates the Effects of Age, Manner of Death, Dissection, and Psychiatric Diagnosis.” PLoS One 13, no. 7 (July 17, 2018): e0200003. Herman, J. P., H. Figueiredo, N. K. Mueller, Y. Ulrich-​Lai, N. M. Ostrander, D. C. Choi, and W. E. Cullinan. “Central Mechanisms of Stress Integration:  Hierarchical Circuitry Controlling Hypothalamo-​Pituitary-​Adrenocortical Responsiveness.” Front Neuroendocrinol 24, no. 3 (July 2003): 151–​80. The Human Rights in Trauma Mental Health Program. Mental Health Consequences Following Release from Long-​Term Solitary Confinement in California Consultative Report Prepared for the Center for Constitutional Rights. HRTMH Lab Consultative Report, Stanford University, 2017. Immordino-​Yang, M. H., A. McColl, H. Damasio, and A. Damasio. “Neural Correlates of Admiration and Compassion.” Proceedings of the National Academy of Sciences of the United States of America 106, no. 19 (May 2009): 8021–​26. Jacobs, B. L., H. van Praag, and F. H. Gage. “Adult Brain Neurogenesis and Psychiatry: A Novel Theory of Depression.” Molecular Psychiatry 5, no. 3 (May 2000): 262–​69. King, R. H. From the Bottom of the Heap. Oakland: PM Press, 2012. Kolb B., G. Gorny, Y. Li, A. N. Samaha, and T. E. Robinson. “Amphetamine or Cocaine Limits the Ability of Later Experience to Promote Structural Plasticity in the Neocortex and Nucleus Accumbens.” Proceedings of the National Academy of Sciences of the United States of America 100, no. 18 (September 2, 2003): 10523–​28. Kupfer, D. J. “Sleep Research in Depressive Illness:  Clinical Implications—​A Tasting Menu.” Biological Psychiatry 38, no. 6 (September 15, 1995): 391–​403. Labonté, B., O. Engmann, I. Purushothaman, C. Menard, J. Wang, C. Tan, J. R. Scarpa et al. “Sex-​Specific Transcriptional Signatures in Human Depression.” Nature Medicine 23, no. 9 (September 2017): 1102–​11. Erratum in: Nature Medicine 24, no. 4 (April 10, 2018): 525. Li, J. Z., B. G. Bunney, F. Meng, M. H. Hagenauer, D. M. Walsh, M. P. Vawter, S. J. Evans et al. “Circadian Patterns of Gene Expression in the Human Brain and Disruption in Major Depressive Disorder.” Proceedings of the National Academy of Sciences of the United States of America 110, no. 24 (June 11, 2013): 9950–​55. Lobel, Jules, and Huda Akil. “Law & Neuroscience: The Case of Solitary Confinement.” Daedalus 147 (2018): 61–​75. Mayberg et  al., H. S. “Deep Brain Stimulation for Treatment-​Resistant Depression.” Neuron 45 (2005): 651–​60.

Huda Akil  219 McEwen, B. S. “Allostasis and Allostatic Load:  Implications for Neuro­ psychopharmacology.” Neuropsychopharmacology 22 (2000): 108–​24. McEwen, B. S. “Possible Mechanisms for Atrophy of the Human Hippocampus.” Molecular Psychiatry 2 (1997): 255–​62. McEwen, B. S. “Stress and Hippocampal Plasticity.” Annual Review of Neuroscience 22 (1999): 105–​22. McEwen, B., and Akil, H. “Social Neuroscience: Gene, Environment, Brain, Body.” Annals of the New York Academy of Sciences (2011). Melo, M. C.  A., et  al. “Chronotype and Circadian Rhythm in Bipolar Disorder:  A Systematic Review.” Sleepmedicine Reviews 34 (August 2017): 46–​58. Morris, N., and D.J. Rothman, eds. The Oxford History of the Prison:  The Practice of Punishment in Western Society. New York: Oxford University Press, 1998. Moser, M. B., M. Trommald, and P. Andersen. “An Increase in Dendritic Spine Density on Hippocampal CA1 Pyramidal Cells Following Spatial Learning in Adult Rats Suggests the Formation of New Synapses.” Proceeding of the National Academy of Sciences of the United States of America 91 (1994): 12673–​75. Pantazatos, S. P., Y. Y. Huang, G. B. Rosoklija, A. J. Dwork, V. Arango, and J. J. Mann. “Whole-​ Transcriptome Brain Expression and Exon-​ Usage Profiling in Major Depression and Suicide: Evidence for Altered Glial, Endothelial and ATPase Activity.” Molecular Psychiatry 22, no. 5 (May 2017): 760–​73. Perez, J. A., S. M. Clinton, C. A. Turner, S. J. Watson, and H. Akil. “A New Role for FGF2 as an Endogenous Inhibitor of Anxiety.” The Journal of Neuroscience 29, no. 19 (May 13, 2009): 6379–​87. Reppert, S. M., and D. R. Weaver. “Coordination of Circadian Timing in Mammals.” Nature 418, no. 6901 (August 29, 2002): 935–​41. Selye, H. “A Syndrome Produced by Diverse Nocuous Agents.” Nature 138, (1936): page 32. Sheline, Y. I., et  al. “The Default Mode Network and Self-​Referential Processes in Depression.” Proceedings of the National Academy of Sciences of the United States of America 106 (2009): 1942–​47. Sheline, Y. I., P. W. Wang, M. H. Gado, J. C. Csemansky, and M. W. Vannier. “Hippocampal Atrophy in Recurrent Major Depression.” Proceedings of the National Academy of Sciences of the United States of America 93 (1996): 3908–​13. Smith, Peter Scharff. “The Effects of Solitary Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation.” Corrections & Mental Health, An Update of the National Institute of Corrections (June 2011). Spencer-​Segal, J. L., and H. Akil. “Glucocorticoids and Resilience.” Hormones and Behavior (November 24, 2018). Spierenburg, P. The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe. Crime, Law, and Deviance. New Brunswick, NJ: Rutgers University Press, 1991. Turner, C. A., S. J. Watson, and H. Akil. “The Fibroblast Growth Factor Family: Neuromodulation of Affective Behavior.” Neuron 76, no. 1 (October 4, 2012): 160–​74. Voss, M. W., C. Soto, S. Yoo, M. Sodoma, C. Vivar, and H. van Praag. “Exercise and Hippocampal Memory Systems. Trends.” Trends in Cognitive Sciences (February 15, 2019).

13

Use of Animals to Study the Neurobiological Effects of Isolation Historical and Current Perspectives Michael J. Zigmond* and Richard Jay Smeyne**

Humans are a social species, a characteristic undoubtedly selected during evolution.1 Thus, it should not be surprising that the absence of social contact for any significant amount of time can have toxic neurobiological consequences. Isolation has many faces, including: (1) some instances of housing in an assisted living facility, nursing home, or hospice; (2) “persistent loneliness,” which can even occur in individuals who appear to be among others; and (3) the most severe of these conditions, incarceration in solitary confinement. There are a great deal of data on isolation that have been gathered from studies of laboratory animal that we believe can provide critical insights into the impact of isolation in humans. Due in part to these studies, regulations have been developed to protect animals from being harmed by such isolation. Unfortunately, this is in contrast with the relative lack of regulations regarding the housing of humans. In this chapter, we discuss the data from animal studies on the impact of isolation on behavior and the brain. We also discuss the regulations that exist regarding the housing and care of these animals, noting the contrast with regulations regarding humans.

* Professor Emeritus of Neurology, Psychiatry, and Neurobiology, Department of Neurology, School of Medicine, University of Pittsburgh. We thank many who have contributed to this chapter, either directly or indirectly, including our colleagues at the Yale Law School (Anna Van Cleave, Judith Resnick, Ali Harrington), present and former members of Farris, Vaughan, Wills & Murphy LLP, and Sandra Castro. Our work has been supported by the National Institute of Neurological Diseases and Stroke, The National Parkinson’s Foundation (now the Parkinson’s Foundation), the Aging Institute of the University of Pittsburgh, Thomas Jefferson University, and St. Jude Children’s Research Hospital (ALSAC). ** Professor, Thomas Jefferson University, Jack & Vickie Farber Institute for Neuroscience, Department of Neuroscience. 1 D. M. Buss, “The Evolution of Anxiety and Social Exclusion,” Journal of Social and Clinical Psychology 9 (1990): 196–​201. Michael J. Zigmond and Richard Jay Smeyne. Use of Animals to Study the Neurobiological Effects of Isolation In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0013

222  Use of Animals

Demographics of isolation Nursing homes and assisted living Within the USA, it is estimated that at any given time more than 8 million individuals reside in long-​term care. About half of these individuals live at home and therefore may be expected to have some social support. However, 1.3 million are in nursing homes, 1.2 million are in hospices, and another 700,000 reside in assisted living facilities.2 Although such facilities typically provide opportunities for some social interactions, these individuals—​numbering more than 3 million—​can be expected to suffer from a degree of isolation. This, of course was not always the case; until relatively recently most people spent virtually their entire lives among members of their family and others within their small communities. Indeed, this is still true for many people even today.3 Thus, it seems reasonable to assume that evolution has made social interactions an essential component of a healthy life. Many who enter nursing homes, hospices, and assisted living facilities have added burdens, namely physiological and/​or psychiatric impairments—​such as severe hearing loss, visual impairments, and/​or mild or severe cognitive impairment—​that can further exacerbate the sense of isolation. Moreover, with advancing age and declining health, a person’s environment has an increasingly powerful impact on his or her health.4 In short, with age there is commonly a decline in social interactions, and this is likely to play a role in age-​related morbidity and even mortality.5

Individuals suffering from persistent loneliness Loneliness can be defined as a sense of social isolation incorporating “unfulfilled intimate and social needs”6 and can even occur in individuals who live within

2 Centers for Disease Control and Prevention (CDC), Long-​ Term Care Services (Atlanta: CDC, 2013). 3 R. I.  M. Dunbar, “Coevolution of Neocortical Size, Group Size and Language in Humans,” Behavioural and Brain Sciences 16 (1993):  681–​735; R. I.  M. Dunbar and R. Sosis, “Optimising Human Community Sizes,” Evolution and Human Behavior 39 (2018): 106–​11. 4 M. P. Lawton and L. Nahemow, “Ecology and the Aging Process,” in The Psychology of Adult Development and Aging, ed. Carl Eisendorfer. & Lawton M. Powell. (Washington, DC: American Psychological Association, 1973); M. P. Lawton and B. Simon, “The Ecology of Social Relationships in Housing for the Elderly,” Gerontologist 8 (1968): 108–​15. 5 M.P. Lawton and L. Nahemow, “Ecology”; M.P. Lawton and B. Simon, “The Ecology of Social Relationships.” 6 J.T. Cacioppo, et al., “” International Journal of Psychophysiology 35 (2000): 143–​54.

Michael J. Zigmond and Richard Jay Smeyne  223 a community but seem unable to connect with others.7 As with housing under relatively isolated conditions, a sense of loneliness is typically associated with a variety of physiological and psychological impairments, including depression, coronary heart disease, disrupted sleep, impaired hypothalamic-​ pituitary-​ adrenal axis, impairments in corticosterone secretion, and a decline in defenses against inflammation.8 Indeed, fMRI imaging studies of the brains of individuals who experience loneliness suggest that they suffer from a kind of “social craving,” i.e., a hunger for connections to others akin to a hunger for food.9 So pervasive is the negative impact of feelings of loneliness that they are associated with an increase in morbidity and mortality even after controlling for most other variables,10 and some have suggested that its long-​term impact on health is twice that of obesity.11 Estimates of the extent of persistent feelings of loneliness range from 20% of the population to as much as 50%, which would make it the most common health risk in the United States.12

Solitary confinement The United States prison population is the largest in the world, with estimates of 2.3 million people incarcerated across federal, state, and local levels.13 With the current US population estimated at 328 million, 25% of whom are below the age of 18,14 this represents an incarceration rate of approximately 1 in every 7 R. S. Weiss, Loneliness: The Experience of Emotional and Social Isolation (Cambridge, MA: MIT Press, 1973); J. T. Cacioppo and L. C. Hawkley, “Perceived Social Isolation and Cognition,” Trends in Cognitive Sciences 13 (2009): 447–​54; J.T. Cacioppo et al., “Lonely Traits”; R. Kanai, B. Bahrami, B. Duchaine, A. Janik, M. J. Banissy, and G. Rees, “Brain Structure Links Loneliness to Social Perception,” Current Biology 22 (2012): 1975–​79. 8 L. C. Hawkley and J. T. Cacioppo, “Loneliness and Pathways to Disease,” Brain, Behavior, and Immunity (2003): 17 Suppl. 1, S98–​105; A. Steptoe, N. Owen, S. R. Kunz-​Ebrecht, and L. Brydon, “Loneliness and Neuroendocrine, Cardiovascular, and Inflammatory Stress Responses in Middle-​ Aged Men and Women,” Psychoneuroendocrinology 29 (2004): 593–​611; S. D. Pressman, S. Cohen, G. E. Miller, A. Barkin, B. S. Rabin, and J. J. Treanor, “Loneliness, Social Network Size, and Immune Response to Influenza Vaccination in College Freshmen,” Health Psychology 24 (2005):  297–​306; R. C. Thurston and L. D. Kubzansky, “Women, Loneliness, and Incident Coronary Heart Disease,” Psychosomatic Medicine 71 (2009): 836–​42. 9 T. K. Inagaki, K. A. Muscatell, M. Moieni, J. M. Dutcher, I. Jevtic, M. R. Irwin, and N. I. Eisenberger, “Yearning for Connection? Loneliness Is Associated with Increased Ventral Striatum Activity to Close Others,” Social Cognitive and Affective Neuroscience 11 (2016): 1096–​101. 10 J. S. House, K. R. Landis, and D. Umberson, “Social Relationships and Health,” Science 241 (1988): 540–​45. 11 T. Petitte et al., “A Systematic Review of Loneliness and Common Chronic Physical Conditions in Adults,” Open Psychology Journal 8 (2015): 113–​32. 12 C. Wilson and B. Moulton, Loneliness among Older Adults: A National Survey of Adults 45+. (Washington, DC: Knowledge Networks and Insight Policy Research, 2010). 13 P. Wagner and W. Sawyer, Mass Incarceration: The Whole Pie (Prison Policy Initiative, 2018). https://​www.prisonpolicy.org/​reports/​pie2018.html 14 US Census Bureau, “U.S. and World Population Clock,” accessed 2018, https://​www.census.gov/​ popclock/​.

224  Use of Animals 100 adults, roughly 5 times the worldwide average. African Americans and Hispanic Americans constitute almost 60% of this overall population, with African American males being incarcerated at roughly 5 times the rate of white American males.15 Within prisons and jails, a practice worthy of particular scrutiny regarding its effectiveness in reducing crime and its abrogation of human rights, is the separation of inmates into “restricted housing” or solitary confinement16 In 2015, the United Nations General assembly adopted the 33-​page United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Nelson Mandela Rules”), which state in part:17 [S]‌olitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.

At present, on any given day, there are more than 80,000 to 100,000 men, women, and adolescents being held in solitary confinement in prisons across the United States. The number of persons incarcerated in solitary confinement represent approximately 6.6% of the incarcerated male population.18 Whereas fifteen days is undoubtedly a very long time in terms of its impact on most prisoners, a substantial proportion of the individuals housed in segregation are housed under these conditions for longer than three years,19 and there have been cases of individuals being housed in solitary for decades. The conditions of solitary confinement are sparse. The size of a solitary confinement cell can vary but is commonly equivalent to a king-​size bed (about 80 square feet). Individuals in such cells have limited views outside of the cell, often just a slot for exchange of food. Although persons held in these conditions do not experience total sensory deprivation—​they have the ability to see, hear, smell, and taste—​they are not afforded any meaningful human contact except with correctional personnel as they are being escorted to another isolated area, which typically occurs while they are in shackles. When placed into segregation, prisoners typically spend two days 15 NAACP, “Criminal Justice Fact Sheet: NIH 2016,” National Institutes of Health Workshop on Ensuring the Continued Responsible Oversight of Research with Non-​Human Primates (NIH, 2018). 16 Association of State Correctional Administrators (ASCA) and the Arthur Liman Public Interest Program, Aiming to Reduce Time-​In-​Cell (Yale Law School, 2016) https://​law.yale.edu/​system/​files/​ area/​center/​liman/​document/​aimingtoreducetic.pdf. 17 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), resolution adopted by the General Assembly on December 17, 2015, UN DOC A/​RES/​70/​175. 18 Sarah Baumgartel, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter & Judith Resnik, “Time-​In-​Cell: The ASCA-​Liman 2014 National Survey of Administrative Segregation in Prison” (Public Law Research Paper No. 552, Yale Law School, 2015). 19 Id.

Michael J. Zigmond and Richard Jay Smeyne  225 a week entirely in isolation during weekends, and twenty-​three hours a day in their cells during weekdays. The remaining hour is usually set aside for exercise, which takes place alone in an exercise room or a fenced or walled “dog run.” They may or may not be allowed to leave their cells for visits or to make telephone calls.20

Effects of isolation on animals Animals in zoos or kept by private individuals The effects of isolation on humans is described in detail elsewhere in this book, and include loneliness, withdrawal, depression, confusion, agitation, and aggressiveness. Those findings have been greatly supplemented by comparisons of confined animals, such as those in zoos or circuses, to those in their natural habitats. Such contrasts demonstrate that there are dramatic effects of such isolation on many aspects of animal behavior. For example, animals housed in traditional zoos—​which typically involve physical isolation within a small space—​show a limited behavioral repertoire, as well as unnatural stereotypic behaviors, such as pacing and excessive grooming.21 Those effects have been termed by some as representing “zoochosis,”22 which is the title of a documentary on the impact of captivity on animal behavior.23 The findings from zoos may have been largely responsible for a host of laws and regulations in both the United States and in many other countries concerning the housing of animals in captivity, including the 1966 Animal Welfare Act (AWA), a regulation that is enforced by several US agencies. These regulations, which have been updated multiple times, the latest being 2017,24 deal with such issues as the size of the enclosure, the number of animals housed together, and the type and quantity of food. In some cases, failure to comply with these regulations has led to the closing of zoos and the prohibition of exhibits. In many instances, they have led to dramatic changes in the housing of animals, and even to the establishment

20 J. Casella and S. Rodriguez, “What Is Solitary Confinement,” The Guardian, April 27, 2016, accessed September 9, 2018, https://​www.theguardian.com/​world/​2016/​apr/​27/​what-​is​solitary-​confinement. 21 J. P. Garner, “Stereotypies and Other Abnormal Repetitive Behaviors:  Potential Impact on Validity, Reliability, and Replicability of Scientific Outcomes,” ILAR Journal 46 (2005): 106–​17; L. Braitman, Animal Madness: How Anxious Dogs, Compulsive Parrots, and Elephants in Recovery Help Us Understand Ourselves (New York: Simon & Schuster, 2014). 22 L. Smith, “Zoos Drive Animals Crazy,” Slate (2014). 23 N.  Påskesen, Zoochosis—​A Short Documentary,2014. https://​www.kickstarter.com/​projects/​ 711000852/​zoochosis-​a-​short-​documentary 24 US Department of Agriculture, Animal Welfare Act, 2017. https://​www.aphis.usda.gov/​animal_​ welfare/​downloads/​AC_​BlueBook_​AWA_​FINAL_​2017_​508comp.pdf

226  Use of Animals of “safari parks,” in which animals live under semi-​natural conditions and it is the visitors who are “enclosed” in vehicles that travel through the parks. Although reports about animals kept as pets represent a very minor component of the relevant literature, they also have played a critical role in stimulating more formal research into the role of isolation. In the late 1940s, Donald O. Hebb, a pioneer in the development of biological studies of behavior working at McGill University, noticed that rats brought home as pets for his children showed marked improvement in learning, memory, and problem-​solving when he returned them to his lab for testing.25 This, of course, raised the question of why the home environment produced such positive cognitive effects and was at least partially responsible for the enormous body of research on the impact of housing mice and rats in an enriched environment, or, conversely, on the impact of housing rodents in solitary that has occurred since. Indeed, to date, the US National Library of Medicine lists well over 1,000 articles on this topic.

Formal laboratory studies of rodents As early as the second century, scientists and physicians routinely used animals to explore aspects of anatomy and physiology in their attempts to improve human life by treating human maladies and thereby alleviate suffering. Yet, in spite of the obvious benefits to humankind, using animals in this manner posed ethical dilemmas for some scientists. One of the earliest attempts to bring awareness to this issue was that of English physician and physiologist Marshall Hall in his 1835 article titled “Of Principles of Investigation in Physiology.”26 In that paper he outlined five principles to govern animal experimentation: (1) An experiment should never be performed if the necessary information could be obtained by observations; (2) no experiment should be performed without a clearly defined and obtainable objective; (3) scientists should be well-​informed about the work of their predecessors and peers in order to avoid unnecessary repetition of an experiment; (4) justifiable experiments should be carried out with the least possible infliction of suffering (often through the use of lower, less sentient animals); and (5) every experiment should be performed under circumstances that would provide the clearest possible results, thereby diminishing the need for repetition of experiments. These principles are now reflected in the widely accepted principle of “3Rs”—​replacement (replace the use of animals in research if possible);

25 D. O. Hebb, “The Effects of Early Experience on Problem-​Solving at Maturity,” American Psychology 2 (1947): 306–​07; R. E. Brown and P. M. Milner, “The Legacy of Donald O. Hebb: More than the Hebb Synapse,” Nature Reviews Neuroscience 4 (2003): 1013–​19. 26 M. Hall, “Of Principles of Investigation in Physiology,” Circulation 48 (1973): 651–​54.

Michael J. Zigmond and Richard Jay Smeyne  227 reduction (use the minimum number of animals and obtain the maximum amount of information); and refinement (minimize suffering)27—​which form the basis of the laws and regulations that currently guide animal use in biomedical research discussed in some detail in the last section of our chapter.

Laboratory studies of the impact of isolation on animal behavior and brain There have been numerous studies of laboratory animals housed in isolated versus enriched environments that provide significant insights for the impact of isolation on humans. Most such studies have involved mice and rats, and typically combine three variables: (a) food, (b) conditions related to the physical environment, and (c) social interactions. Thus, for example, a study might compare the impact of housing an animal alone in a relatively small cage with an animal housed in a large enclosure together with a number of other animals, running wheels, climbing equipment, huts and “toys” (e.g., small balls), with special foods often included to provide added gustatory and olfactory stimulation. The research indicates that there are enormous differences between animals housed in such “enriched environments” as compared with those environments euphemistically called standard or even control conditions. These laboratory studies have provided great insight into the negative effects of isolation on social beings. In an early study, rats kept in isolated cages for thirteen weeks showed significant physiological changes, including decreased body weight, reduced white blood cells (a measure of the capacity of immune system to fight disease), reduced liver glycogen in males, elevated adrenal cholesterol, and increased weights of the adrenal, thyroid, and pituitary glands. The authors also reported that the isolated rats became “nervous” and frequently bit their handlers.28 A great deal of subsequent research further supports and extends the conclusion that isolating social animals can increase pain sensitivity and reduce the capacity to cope with stress,29 particularly in younger animals;30 reduce the

27 W. M.  S. Russell and R. L. Burch, The Principles of Humane Experimental Technique (London: Methuen, 1959). 28 A. M. Hatch, G. S. Wiberg, Z. Zawidzka, M. Cann, J. M. Airth, and H. C. Grice, “Isolation Syndrome in the Rat,” Pharmacology 7 (1965): 735–​45. 29 C. Westenbroek, G. J. Ter Horst, M. H. Roos, S. D. Kuipers, A. Trentani, and J. A. Den Boer, “Gender-​Specific Effects of Social Housing in Rats after Chronic Mild Stress Exposure,” Progress in Neuro-​Psychopharmacology and Biological Psychiatry 27 (2003): 21–​30. 30 S. Ikemoto and J. Panksepp, “The Effects of Early Social Isolation on the Motivation for Social Play in Juvenile Rats,” Developmental Psychobiology 25 (1992): 261–​74.

228  Use of Animals capacity for learning and memory;31 decrease the anatomical complexity of the brain (e.g., fewer connections between nerve cells and even fewer nerve cells);32 decrease in the number of blood vessels in the brain;33 and increase in the susceptibility to several conditions that emulate human diseases, including Alzheimer’s disease,34 Parkinson’s disease,35 and stroke.36 Recent studies from our own laboratories have shown that isolation in rodents also causes a decrease in the animal’s immune response to bacterial challenge resulting in a decrease on cortisol activity, increase in serum cytokine levels, and in the serum and brain levels of Brain Derived Neurotrophic Factor (BDNF)—​a key factor in promoting the health of brain cells. We have also shown that chronic isolation in rodents can impair the ability of nerve cells in the brain to communicate with each other, induce damage to some forms of DNA and alter the expression of numerous genes, the sum total of which is to increase the vulnerability of the brain to age-​related loss of nerve cells.37 For more details on the impact of 31 H.J. Huang et al., “Long-​Term Social Isolation Exacerbates the Impairment of Spatial Working Memory in APP/​PS1 Transgenic Mice,” Brain Research 1371 (2011): 150–​60; D. Ibi et al., “Social Isolation Rearing-​Induced Impairment of the Hippocampal Neurogenesis Is Associated with Deficits in Spatial Memory and Emotion-​Related Behaviors in Juvenile Mice,” Journal Neurochemistry 105 (2008):  921–​32; H. Ouchi, K. Ono, Y. Murakami, and K. Matsumoto, “Social Isolation Induces Deficit of Latent Learning Performance in Mice:  A Putative Animal Model of Attention Deficit/​ Hyperactivity Disorder,” Behavioural Brain Research 238 (2013): 146–​53. 32 S. Shams et  al., “Dendritic Morphology in the Striatum and Hypothalamus Differentially Exhibits Experience-​Dependent Changes in Response to Maternal Care and Early Social Isolation,” Behavioural Brain Research 233 (2012): 79–​89; R. G. Struble and A. H. Riesen, “Changes in Cortical Dendritic Branching Subsequent to Partial Social Isolation in Stumptailed Monkeys,” Developmental Psychobiology 11 (1978):  479–​86; Y. C. Wang et  al., “Differential Neuronal Changes in Medial Prefrontal Cortex, Basolateral Amygdala and Nucleus Accumbens after Postweaning Social Isolation,” Brain Structure and Function 217 (2012): 337–​51; W. T. Greenough, J. W. McDonald, R. M. Parnisari, and J. E. Camel, “Environmental Conditions Modulate Degeneration and New Dendrite Growth in Cerebellum of Senescent Rats,” Brain Research 380 (1986):  136–​43; E. J. Green, W. T. Greenough, and B. E. Schlumpf, “Effects of Complex or Isolated Environments on Cortical Dendrites of Middle-​Aged Rats,” Brain Research 264 (1983): 233–​40. 33 A. M. Sirevaag and W. T. Greenough, “Differential Rearing Effects on Rat Visual Cortex Synapses, III, Neuronal and Glial Nuclei, Boutons, Dendrites, and Capillaries,” Brain Research 424 (1987): 320–​32. 34 O. Lazarov et al., “Environmental Enrichment Reduces Abeta Levels and Amyloid Deposition in Transgenic Mice,” Cell 120 (2005): 701–​13; S. Ziegler-​Waldkirch et al., “Environmental Enrichment Reverses Abeta Pathology during Pregnancy in a Mouse Model of Alzheimer’s Disease,” Acta Neuropathologica Communications 6 (2018): 44. 35 C. Faherty et  al., “Environmental Enrichment in Adulthood Eliminates Neuronal Death in Experimental Parkinsonism,” Molecular Brain Research 134 (2005): 170–​79; N.R. Goldberg et al., “Social Enrichment Attenuates Nigrostriatal Lesioning and Reverses Motor Impairment in a Progressive 1-​Methyl-​2-​Phenyl-​1,2,3,6-​Tetrahydropyridine (MPTP) Mouse Model of Parkinson’s Disease,” Neurobiology of Disease 45 (2012): 1051–​67. 36 B. Friedler, J. Crapser, and L. McCullough, “One Is the Deadliest Number: The Detrimental Effects of Social Isolation on Cerebrovascular Diseases and Cognition,” Acta Neuropathologica 129 (2015):  493–​509; J. Holt-​Lunstad and T. B. Smith, “Loneliness and Social Isolation as Risk Factors for CVD: Implications for Evidence-​Based Patient Care and Scientific Inquiry,” Heart 102 (2016): 987–​89. 37 J. D. Jaumotte, S. L. Castro, R. J. Smeyne, and M. J. Zigmond, “Isolated Housing Decreases the Immune Response in Sera and Brain Following Exposure to a Bacterial Toxin in Older Rats” (Annual

Michael J. Zigmond and Richard Jay Smeyne  229 isolation vs. enrichment on the rodent brain, a number of scientific reviews of the literature can be examined,38 as well as a review in lay language by Sanders.39

Laboratory studies of non-​human primates Studies of non-​human primates that suffer from social isolation, like the studies of rodents, have also demonstrated the severe effects of such isolation, particularly when the primate is young. Most of these studies have been comparisons of primates in the wild with primates housed in zoos or used for exhibits.40 Relatively few formal studies have been carried out, and many of those have been by veterinarians wishing to establish the proper housing conditions for primates. A notable exception is the work of Harry Harlow, whose research41 may have been stimulated by a 1950 World Health Organization study on “Maternal Care and Mental Health,” in which researchers observed pathological effects of institutionalization in young children. Harlow compared infant monkeys (rhesus macaques) reared in isolation, which included maternal deprivation, with more normally reared monkeys that had access to their mothers.42 Harlow found that the deprived monkeys clearly Meeting of the Society for Neuroscience, San Diego, 2016); S. L. Castro, J. D. Jaumotte, L. H. Sanders, R. J. Smeyne, and M. J. Zigmond, Environmental Isolation Impairs Measures of Brain Health (Annual Meeting of the Society for Neuroscience, San Diego, 2016). 38 D. Krech, M. R. Rosenzweig, and E. L. Bennett, “Effects of Environmental Complexity and Training on Brain Chemistry,” Journal of Comparative and Physiological Psychology 53 (1960): 509–​ 19; H. Van Praag, G. Kempermann, and F. H. Gage, “Neural Consequences of Environmental Enrichment,” Nature Reviews Neuroscience 1 (2000): 191–​98; C. W. Cotman, N. C. Berchtold, and L. A. Christie, “Exercise Builds Brain Health: Key Roles of Growth Factor Cascades and Inflammation,” Trends Neurosciences 30 (2007):  464–​ 72; T. Schallert, M. T. Woodlee, and S. M. Fleming, “Experimental Focal Ischemic Injury: Behavior-​Brain Interactions and Issues of Animal Handling and Housing,” ILAR Journal 44 (2003): 130–​43; J. A. Markham and W. T. Greenough, “Experience-​ Driven Brain Plasticity: Beyond the Synapse,” Neuron Glia Biology 1 (2004): 351–​63; A. J. Hannan, “Environmental Enrichment and Brain Repair:  Harnessing the Therapeutic Effects of Cognitive Stimulation and Physical Activity to Enhance Experience-​Dependent Plasticity,” Neuropathology and Applied Neurobiology 40 (2014): 13–​25. 39 L. Sanders, “Loneliness is bad for brains,” Science News, Vol. 194, No. 11, December 8, 2018, p. 11 https://​www.sciencenews.org/​article/​loneliness-​isolation-​brain-​changes/​. 40 A. Mallapur and B. C. Choudhury, “Behavioral Abnormalities in Captive Nonhuman Primates,” Journal of Applied Animal Welfare Science 6 (2003): 275–​84; S.L. Jacobson et al., “Atypical Experiences of Captive Chimpanzees (Pan Troglodytes) Are Associated with Higher Hair Cortisol Concentrations as Adults,” Royal Society Open Science 4 (2017): 170932. 41 H. F. Harlow and R. R. Zimmermann, “Affectional Responses in the Infant Monkey; Orphaned Baby Monkeys Develop a Strong and Persistent Attachment to Inanimate Surrogate Mothers,” Science 130 (1959): 421–​32. 42 G. L. Arling and H. F. Harlow, “Effects of Social Deprivation on Maternal Behavior of Rhesus Monkeys,” Journal of Comparative and Physiological Psychology 64 (1967): 371–​77; G.C. Ruppenthal et  al., “A 10-​ Year Perspective of Motherless-​ Mother Monkey Behavior,” Journal of Abnormal Psychology 85 (1976): 341–​49; D. Blum, Love at Goon Park: Harry Harlow and the Science of Affection (New York: Basic Books, 2002).

230  Use of Animals appeared distressed. They were reclusive, had social deficits, and showed either fear or aggression. Later studies of adult primates have shown that social isolation also leads to a number of additional behavioral pathologies. For example, in one recent study, ninety days of isolation caused depression-​like behavior, including social withdrawal, and a reduction in parental behavior.43 When Harlow examined the impact of isolation on the behavior that occurred when the moneys were introduced into a peer group, he found that they were hesitant to interact with others and spent most of their time alone. Harlow noted that none of the monkeys died in isolation, but “when initially removed from total social isolation, however, they usually go into a state of emotional shock, characterized by . . . autistic self-​clutching and rocking. One of six monkeys isolated for three months refused to eat after release and died five days later. The autopsy report attributed death to emotional anorexia. . . . The effects of six months of total social isolation were so devastating and debilitating that we had assumed initially that twelve months of isolation would not produce any additional decrement. This assumption proved to be false; twelve months of isolation almost obliterated the animals socially.”44 The Harlow studies have been quite controversial and may have been a major factor in stimulating the modern animal rights movement.45 Nonetheless, studies of the impact of isolation by Harlow’s students and others have continued, though in a modified, less intensive manner, extending Harlow’s findings to show that early depravation is associated with severe behavioral and physiological reactions in adults to such challenges as brief social separations.46

From lower animals to humans: Is an extrapolation justified? The similarities between rodents and non-​human primates, our close biological relatives, provide an entry point to a critical question: To what extent can we learn about the human condition from laboratory studies of non-​human animals? There are several reasons to believe that the answer is that we can learn a great deal. First, rodents such as mice and rats, like humans, are social animals that

43 Li et al., “Depression-​Like Behavioral Phenotypes by Social and Social Plus Visual Isolation in the Adult Female Macaca Fascicularis,” PLoS One 8 (2013): e73293. 44 H. F. Harlow, R. O. Dodsworth, and M. K. Harlow, “Total Social Isolation in Monkeys,” Proceedings of the National Academy of Sciences of the United States of America 54 (1965): 90–​97. 45 Blum, Love at Goon Park. 46 S. J. Suomi, “Early Stress and Adult Emotional Reactivity in Rhesus Monkeys,” Ciba Foundation Symposium (1991): 156, 171–​83; discussion 183–​88; S. J. Suomi, H. F. Harlow, and S. D. Kimball, “Behavioral Effects of Prolonged Partial Social Isolation in the Rhesus Monkey,” Psychological Reports 29 (1971): 1171–​77.

Michael J. Zigmond and Richard Jay Smeyne  231 largely prefer group over isolated living conditions.47 Second, the overwhelming majority of the human genome is similar to that of other vertebrates. For example, of the 30,000 genes identified in a particular strain of mice (C57BL/​6), 99% have a human equivalent.48 Third, the basic neuroanatomy of the mouse and other vertebrate animals parallel that of the human, differing primarily in the relative size of specific brain regions.49 Fourth, the key molecules that mediate the influence of the environment on the brain are each essentially identical between humans and laboratory animals such as rodents and non-​human primates. This includes the neurotransmitters that communicate between nerve cells to mediate behavior, the factors that serve to protect nerve cells, and the molecules responsible for handling oxidative stress and inflammation.50 As noted in a recent review, “for the most part the systems involved in controlling gene activity have many similarities between mice and humans. These systems include the immune system, metabolism, and stress response, and have been conserved through evolution.”51 Additionally, one has to ask if you can really study the psychological impact of isolation in humans based on research involving laboratory animals? Again, most animal researchers believe the answer to this question is yes. Of course, we cannot ask a mouse directly how it feels, but it is also difficult to get direct answers from many humans suffering from depression, anxiety, and schizophrenia. Yet, animal studies have greatly broadened our understanding of these human conditions and led to the development of a myriad of effective medical treatments. And we know that the basic human physiological responses to isolation, including increased stress responses, as well as psychological responses, such as drug withdrawal and positive responses in tests of anxiety and depression, are all seen in rats and mice.52

47 Van Loo et al., “Do Male Mice Prefer or Avoid Each Other’s Company? Influence of Hierarchy, Kinship, and Familiarity,” Journal of Applied Animal Welfare Science 4 (2001): 91–​103. 48 Waterston et al., “Initial Sequencing and Comparative Analysis of the Mouse Genome,” Nature 420 (2002): 520–​62. 49 Alivisatos et al., “A National Network of Neurotechnology Centers for the BRAIN Initiative Neuroscience: Observatories of the Mind,” Neuron 88 (2015): 445–​48. 50 L. F. Reichardt, “Neurotrophin-​Regulated Signalling Pathways,” Philosophical Transactions of the Royal Society B: Biological Sciences 361 (2006): 1545–​64; M.S. Airaksinen et al., “Evolution of the GDNF Family Ligands and Receptors,” Brain Behavior Evolution 68 (2006): 181–​90. 51 J. Iacurci, “Should the Mouse Model Be Used to Study Human Diseases?,” Nature World News, 2014, http://​www.natureworldnews.com/​articles/​10525/​20141120/​should-​the-​mouse-​model-​ be-​used-​to-​study-​human-​diseases.htm; Y. Cheng et  al., “Principles of Regulatory Information Conservation between Mouse and Human,” Nature 515 (2014): 371–​75. 52 J.T. Cacioppo et  al., “Loneliness across Phylogeny and a Call for Comparative Studies and Animal Models,” Perspectives on Psychological Science 10 (2015): 202–​12.

232  Use of Animals

Regulations regarding the housing of animals Concerns about animal welfare, which led ultimately to concerns about isolation, grew in the nineteenth century as animal protection laws expanded in Great Britain and made their way to the United States. 53 The American Society for the Prevention of Cruelty to Animals (ASPCA) was founded in 1866, and in 1900, Congress held a hearing on an animal cruelty bill, though it was ultimately not enacted into law.54 However, since the beginning of the twentieth century, Congress and a variety of agencies have been responsive to public pressure, including pressure from social activists and interest groups such as the People for the Ethical Treatment of Animals (PETA) and the ASPCA. Congress first passed the Animal Welfare Act of 1966 in response to public concern and the fears of pet owners over the amount of abusive research practices forced onto stolen pets stimulated in part by articles that appeared in Sports Illustrated and Life Magazine.55 A hearing in 1982 before the House Subcommittee on Health and the Environment further emphasized the objectives of animal welfare advocates. The chairman, Hon. Henry A. Waxman, stated, “Clear ethical questions are raised when animals are unnecessarily subjected to pain and discomfort. Callous treatment unrelated to legitimate research aims cannot be tolerated. Such practices are alien to our society and are not consistent with the scientific process.”56 In 1985, there was a highly publicized case in the United States in which baboons were reportedly mistreated57 and a critical report was released by the General Accounting Office aimed at the USDA’s Animal Welfare Program that prompted Congress to pass two additional animal welfare laws, the Improved Standards for Laboratory Animals Act58 and Health Research Extension Act.59 The Health 53 The research and descriptions of the development of federal policy come from an unpublished memorandum, Animals in Solitary, by Madeline Ranum, J.D., Yale Law School, 2018; Pauline Syrnik, J.D., Yale Law School, 2019; and Sophia Wang, J.D., Yale Law School, 2017. Their memorandum informed other aspects of this article. 54 K. L. Schrengohst, “Animal Law—​Cultivating Compassionate Law: Unlocking the Laboratory Door and Shining Light on the Inadequacies & Contradictions of the Animal Welfare Act,” New England Law Review 33 (2011): 855. 55 C. Phinizy, “The Lost Pets that Stray to the Lab,” Sports Illustrated 23, 1965, 36–​49; S. Wayman, “Concentration Camp for Dogs,” Life Magazine 60, 1966, 22–​25. 56 Committee on Energy and Commerce. “Humane Care for Animals in Research,” HR 6928, 97th Congress. (Washington, DC:  US Government Printing Office, 1982) https://​naldc.nal.usda.gov/​ download/​5250782/​PDF). 57 M.  A. Meyers, An Update on the Head Injury Laboratory (University of Pennsylvania Almanac: University of Pennsylvania, 1985). 58 R. J. Masonis, “The Improved Standards for Laboratory Animals Act and the Proposed Regulations: A Glimmer of Home In the Battle Against Abusive Animal Research,” Boston College Environmental Affairs Law Review 16 (1988): 149–​79. 59 Representatives, U.H.O. Health Research Extension Act of 1985, in Commerce, E. A. (ed.), Congressional Record: United States Government Publishing Office, 1985.

Michael J. Zigmond and Richard Jay Smeyne  233 Research Extension Act followed in 1985,60 leading to the establishment of the Public Health Service (PHS) Policy to further regulate the use of animals in research testing and teaching. These laws and their subsequent amendments over the years continue to serve as the basis for the regulations that are now enforced in the United States with regard to the ethical and humane use of animals in research and education. The harshness of isolation was used by animal welfare activists to argue for the group housing of primates and for this reason the Animal Legal Defense Fund filed a lawsuit against the USDA.61 In the past two decades, researchers have moved away from single housing and are trending towards a greater use of social housing for nonhuman primates, influenced in large part by a deeper realization of the consequences of isolation.62 Indeed, from 2000 to 2014, the National Association of Biomedical Research and the Association of Primate Veterinarians found that the use of social housing increased by 20% (from 65% to 85%).63 The issue of single versus social housing has reemerged in recent policy debates. In 2016, in response to a campaign led by PETA, Congress directed the NIH to review its research policies on nonhuman primates.64 NIH responded with a public letter and a workshop to review policies and procedures for conducting such research.65 The NIH has now recognized and acknowledged the need to regularly review and consider ethics, since our standards evolve over time. Although the legislation of humane animal treatment in the United States was not addressed until 1958 and initially focused specifically to the care of livestock, shortly thereafter such legislation encompassed the rights of laboratory animals, as well.66 In 1963, the Guide for the Care and Use of Laboratory Animals was established in the United States as a tool to assist institutions in caring for and using animals in ways judged to be scientifically, technically, and humanely appropriate.67 The Guide also was intended to assist investigators in fulfilling

60 United States House of Representatives, 1985, Health Research Extension Act of 1985, in Commerce, E. A. (ed.), Congressional Record: United States Government Publishing Office. 61 Animal Legal Defense Fund, Inc. v. Glickman, No. 97-​5009 (130 F.3d 464) (D.C. Cir. 1997). 62 S.D. ardif et  al., “IACUC Review of Nonhuman Primate Research,” ILAR Journal 54 (2013): 234–​45. 63 B. T. Bennett, “Association of Primate Veterinarians 2014 Nonhuman Primate Housing Survey,” Journal of the American Association for Laboratory Animal Science 55 (2016): 172–​74. 64 D. Grimm, “NIH to Review Its Policies on All Nonhuman Primate Research,” Science (2016). 65 NAACP, “Criminal Justice Fact Sheet: NIH 2016, NIH Workshop on Ensuring the Continued Responsible Oversight of Research with Non-​Human Primates” (NIH, 2018). 66 United States House of Representatives, 1958, Humane Methods of Slaughter Act, Public Law 85–​765, Congressional Record: United States Government Publishing Office. 67 National Research Council, Guide for the Care and Use of Laboratory Animals (Washington, DC: The National Academies Press, 2011).

234  Use of Animals their obligation to plan and conduct animal experiments in accordance with the highest scientific, humane, and ethical principles. The AWA and PHS, in conjunction with the Guide, now require that each institution have a program for monitoring animal care and use by way of a committee made up of veterinary staff, scientists, non-​scientists, and individuals not affiliated with the institution.68 This program is typically overseen in the United States by an Institutional Animal Care and Use Committee (IACUC) that is responsible for enforcing the regulations mandated by the AWA and PHS as outlined in the Guide. Indeed, the policy requires a written assurance to the US National Institutes of Health (NIH) that the institution will comply with the US Public Health Service Policy on Humane Care and Use of Laboratory Animals. These assurances must include information on IACUC activities, record keeping, and reporting. The assurances must be renewed at regular intervals. Specific mandates for all species, aquatic and terrestrial, are outlined in the Guide. The requirement that IACUCs have a member who is a non-​scientist and not affiliated in any other way with a research institution has been standard since the initial formulation of federal regulations governing such committees. Mench and Stricklen have discussed the role the that the non-​institutional member should play on an IACUC.69 In their article, they quote the AWA, which states that these members serve as “representation for general community interests in the proper care and treatment of animals.”70 The authors note surveys indicate that whereas there is overwhelming public support for the use of animals in biomedical research, more than 80% of the public feel that animals have rights that must be respected and that animals should be spared pain and suffering. Among the many aspects of animal care and use outlined in the Guide are specifics with regard to animal husbandry, i.e., the housing and care of laboratory animals. Very strict regulations regarding many aspects of the housing of laboratory animals are in place and enforced through each institution’s IACUC policies. For example, most animals used in laboratory environments are considered social species as defined by the fact that these animals are known to live naturally in communities in the wild. An effort to maintain these animals in environments as close as possible to their natural habitat is a main priority of these guidelines. Social housing is defined by the Guide as the “housing of species in compatible pairs or groups with additional visual, auditory, olfactory, and/​or tactile contact of conspecifics housed within the same room,” as opposed 68 J. A. Mench and W. R. Stricklin, “Proceedings of an International Conference Held at the Aspen Institute in Queenstown, Maryland in June, 1991: An International Conference on Farm Animal Welfare: Scientific Perspectives” (Guelph: University of Guelph, 1993). 69 Mench and Stricklin, Proceedings. 70 R. Dresser, “Community Representatives and Nonscientists on the IACUC: What Difference Should It Make?,” ILAR Journal 40 (1999): 29–​33.

Michael J. Zigmond and Richard Jay Smeyne  235 to solitary or single housing where an animal is housed by itself with none of these stimulations.71 In all cases, full-​time social housing is the preferred and expected method of housing for social animals unless otherwise carefully justified based on a scientific rationale (which has to be outlined and approved by the IACUC) or veterinary concerns regarding animal welfare. Species-​specific cage space requirements are in place to ensure provision of enough space to allow the animal to make normal postural adjustments and permit the animal to engage in social interactions or to avoid them. In addition to these specific husbandry policies, the Guide also outlines specific regulations as to the general care of the rooms and areas where animals are housed. The temperature, humidity, illumination, noise levels, appropriate air exchange, and overall cleanliness and sanitation of these areas have to be maintained on a strictly regulated basis and are ensured by accurate record-​keeping as monitored through regular inspections by the IACUC with subsequent reports to the USDA. The Guide also mandates adherences to species-​specific enrichment policies. This environmental enrichment is to be such that it allows normal species behaviors, including socialization. Enrichment typically means group housing with opportunities to socialize, including visual, tactile, and olfactory contact with other animals; human interaction; opportunity for exercise or other forms of physical activity; nesting materials, toys, chewing substrates, supplemental food enrichment, or any other activities with the main goal being a positive psychological state for the animals. IACUC policies require participation of all laboratory animals in a standard enrichment program that is determined for each species. Any exemptions from these policies require a careful scientific justification and approval by the IACUC committee.72 As implied by comments on our own work earlier in this chapter, we have actually housed animals in isolation in order to better understand the impact of such conditions. But to obtain permission for those studies, we must regularly provide written justification to our IACUCs and base that justification on the importance of the information to be collected. The manual governing that process is typically quite lengthy, and the application process can take several weeks, often involving requests for additional information before Committee approval is obtained. This process is much more formalized and extensive than that used to determine if humans can be housed in segregated conditions, where this determination can be made by a single individual at any level of the custodial chain (correction officers, wardens, administration) without review, for any number of minor infractions.73 71 National Research Council, Guide for the Care. 72 Id. 73 US Senate Committee on the Judiciary, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, 2nd ed. (Washington DC:  U.S. Government Printing Office, 2012).

236  Use of Animals

Closing comments In this brief chapter we have merely provided an overview of an extensive topic, one that has yielded a large number of research papers and commentaries. Despite its brevity, we hope our chapter is sufficient to highlight three critical points in the discussion of solitary confinement: First, existing data show quite clearly that isolated, impoverished environments can have a devastating impact on the behavior, physiological, and neurobiology of non-​human animals. Second, these observations are significant for understanding the impact of impoverished environments on human beings because of the psycho-​social similarities of such animals to humans, the overwhelming similarity of their respective genomes and neuroanatomy, and the identical molecules that mediate the influence of the environmental on the brain. And, third, an appreciation of the impact of isolation on animals in zoos, kept as pets, and for studies in the laboratory have led to extensive regulations regarding the treatment of these animals, including their housing, and violation of those regulations result in severe penalties. These regulations stand in marked contrast to those currently applied to humans housed in solitary confinement. We strongly believe that there is no biological or philosophical basis for the failure to apply to humans what has been learned from studies of animals and the resulting carefully enforced regulations regarding their care and, indeed, that this dichotomy can no longer be permitted: Human beings deserve at least the same respect and oversight as do our non-​human relatives.

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Michael J. Zigmond and Richard Jay Smeyne  241 Tardif, S. D., K. Coleman, T. R. Hobbs, and C. Lutz. “IACUC Review of Nonhuman Primate Research.” ILAR Journal 54 (2013): 234–​45. Thurston, R. C., and L. D. Kubzansky. “Women, Loneliness, and Incident Coronary Heart Disease.” Psychosomatic Medicine 71 (2009): 836–​42. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Resolution adopted by the General Assembly on December 17, 2015, UN DOC A/​RES/​70/​175. US Census Bureau. “U.S.  and World Population Clock.” Accessed 2018. https://​www. census.gov/​popclock/​. Van Loo, P. L.  P., A. C. De Groot, B. F.  M. Van Zutphen, and V. Baumans. “Do Male Mice Prefer or Avoid Each Other’s Company? Influence of Hierarchy, Kinship, and Familiarity.” Journal of Applied Animal Welfare Science 4 (2001): 91–​103. Van Praag, H., G. Kempermann, and F. H. Gage. “Neural Consequences of Environmental Enrichment.” Nature Reviews Neuroscience 1 (2000): 191–​98. Wagner, P., and W. Sawyer. Mass Incarceration: The Whole Pie. Prison Policy Initiative, 2018. https://​www.prisonpolicy.org/​reports/​pie2018.html Wang, Y. C., U. C. Ho, M. C. Ko, C. C. Liao, and L. J. Lee. “Differential Neuronal Changes in Medial Prefrontal Cortex, Basolateral Amygdala and Nucleus Accumbens after Postweaning Social Isolation.” Brain Structure and Function 217 (2012): 337–​51. Waterston, R. H., K. Lindblad-​Toh, E. Birney, J. Rogers, J. F. Abril, P. Agarwal, and R. Agarwala et al. “Initial Sequencing and Comparative Analysis of the Mouse Genome.” Nature 420 (2002): 520–​62. Wayman, S. “Concentration Camp for Dogs.” Life Magazine 60 (1966): 22–​25. Weiss, R. S. Loneliness:  The Experience of Emotional and Social Isolation. Cambridge, MA: MIT Press, 1973. Westenbroek, C., G. J. Ter Horst, M. H. Roos, S. D. Kuipers, A. Trentani, and J. A. Den Boer. “Gender-​Specific Effects of Social Housing in Rats after Chronic Mild Stress Exposure.” Progress in Neuro-​Psychopharmacology and Biological Psychiatry 27 (2003): 21–​30. Wilson, C., and B. Moulton. Loneliness among Older Adults: A National Survey of Adults 45+. Washington, DC: Knowledge Networks and Insight Policy Research, 2010. Ziegler-​Waldkirch, S., K. Marksteiner, J. Stoll, P. D’errico, M. Friesen, D. Eiler, and L. Neudel et al. “Environmental Enrichment Reverses Abeta Pathology during Pregnancy in a Mouse Model of Alzheimer’s Disease.” Acta Neuropathologica Communications 6:44 (2018).

14

Sharing Experiences of Solitary Confinement—​Prisoners and Staff Robert King,* Dolores Canales,** Jack Morris,† and Armondo Sosa‡

Surviving solitary I am a member of the Angola Three and someone who has survived a mere twenty-​nine years in solitary compared to the duration that my comrade—​ Albert Woodfox—​spent in solitary, forty-​four years! I have been crisscrossing the nation and the world sharing our story since my release in 2001. Prisoners can be placed in solitary confinement for something as trivial as reading the wrong book or speaking in a language the guards do not understand. Woe betide you if you are accused of, in any way, injuring a prison guard or law enforcement officer, or if you happen to be unfortunate enough to have existing mental health issues. Solitary confinement is the remedy most prisons now enforce for any behavior that they do not like or understand. The fact that solitary confinement is regarded as illegal, inhuman, and degrading treatment after fifteen days and is viewed by psychiatrists and psychologists worldwide as a devastatingly inhuman and damaging practice does not seem to faze the wardens or guards who impose this barbaric punishment on far too many prisoners. Not only does the United States have the world’s largest prison population at 2.2 million, but it also uses solitary far more than any other country. Daily, in the United States there are over 100,000 prisoners that are in one form or another of solitary confinement, * One of the Angola Three prisoners held in solitary confinement for almost twenty nine years in Louisiana’s Angola prison, and author of From the Bottom of the Heap: The Autobiography of a Black Panther(Oakland, Ca: PM Press, 2008). ** Co-​Founder and a leader of California Families to Abolish Solitary Confinement, and mother of a former prisoner who spent years in solitary confinement in the Pelican Bay Security Housing Unit (SHU). † Former prisoner at the Pelican Bay SHU, held in solitary confinement for almost twenty five years. Morris is the author of two books that consist mainly of material he produced while confined in the SHU: Sheila Pinkel (ed.), The World of Jack L. Morris: Poetry, Art Works, Letters (Turover Press, 2013) and Jack L. Morris, Incarceration, My Story (Turover Press, 2017). ‡ Lieutenant, Colorado State Penitentiary (CSP), formerly the Colorado supermax where inmates were held in administrative segregation. He has been with the Colorado Department of Corrections for about five years. Robert King, Dolores Canales, Jack Morris, and Armondo Sosa. Sharing Experiences of Solitary Confinement—Prisoners and Staff In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0014

244  Sharing Experiences of Solitary Confinement be it Administrative Segregation (AdSeg), Controlled Cell Restriction (CCR), the SHU (Solitary Housing Unit), or any of the many other professional and personal and frequently euphemistic terms used to describe this special kind of hell. The Angola Three were kept in solitary confinement for decades primarily at the Angola State Penitentiary in Louisiana for the crime of potentially spreading “black pantherism” to other prisoners—​unique but not unusual! Whenever I travel to conferences and workshops on solitary, someone invariably asks me how I kept my sanity in the nearly thirty years in solitary. It saddens me to have to reply that I never said that I was sane, but it is the truth. You cannot be dipped in waste and not come up smelling. Survival and coping are one thing, but stable sanity is something else entirely. I am grateful to have managed to cope and survive, but I am still a long way from stable sanity. Solitary imposes a number of strange maladies on its survivors, mental and physical both. Residing in a cell that is 6 x 9 x 12 feet narrows your visual and mental perspective enormously. I have been out for seventeen years now and I still have trouble differentiating long distances and spatial relationships. After a few years in solitary it seemed as though every other prisoner in this extended condition was provided with state-​issue corrective glasses to deal with the near-​sightedness I was diagnosed with as well. Apparently, the eye, so closely connected to the brain, modifies its abilities to the situation at hand. It was clear to me that I did not have an astigmatism and between physical readjustment, exercise, and willing a better outcome, I was able to regain what I was losing. I was fortunate enough to have read about eye exercises that could retrain the eye and eliminate the need for glasses and so I set about working on my vision to avoid the inevitable deterioration that sets in when your horizons are so limited. One thing you have in solitary is time and I was able to use that time to work my eyes so that, even today, at seventy-​five, I do not need corrective lenses. Aside from vision, of course, the body needs to be able to move and stretch and grow—​something well nigh impossible in a tiny cell. At the Louisiana State Prison, prisoners in CCR were let out a few times a week, depending on weather and the mood of the guards, to work out in a tiny fenced-​in dog run. Prisoners who did not adhere to a strict regime of exercise were doomed to weak bodies that were less able to stand the strains of solitary. I suppose you could say we were lucky in Angola as far as our diet was concerned. As a former plantation, the 18,000-​acre prison employs prisoners in gen­ eral population as slaves, planting and harvesting the food. Although, again at the whim of correctional officers—​entire tiers could be placed on weeks of the “prison loaf ” something resembling (but, not tasting like) a meat loaf which was the ground up leftovers of previous meals shaped into a loaf and served as a meal to those in solitary or worse, “the hole.” Otherwise, we definitely had more fresh food than many other prisons, which we realized when Albert and Herman were

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moved to Dixon and Wade where there was nothing resembling fresh food—​it was all processed and packaged. Then there are the many manifestations of mental torture—​not being touched for decades by anyone other than guards, having to endure endless humiliating body cavity searches, freezing cold winters and boiling hot summers, the imposition of limiting rules on the number and type of books you can have, inability to attend family funerals, the endless tedium, the senseless rules, the sounds of gates clanging and men screaming—​the horror of loud sounds or changes in routine. Charles Dickens, after his visit to Eastern State Penitentiary in 1842 where a misguided Quaker-​inspired policy put prisoners in solitary so that they could ponder their crimes and be rehabilitated, stated that these prisoners were buried alive, cut off from the living world. Each of the three of us—​myself, Herman, and Albert—​have always been asked how we were able to sustain the discipline and focus in our many years of solitary that allowed us to carry on the fight for freedom. The short answer is that we became politicized. I know without a doubt that, aside from any personal tenacity, it was the Ten Point program of the Black Panther Party that gave each of us hope and direction. We had a goal that was much larger than our personal issues and role models who demonstrated the level of commitment we needed to match. I am grateful that not only did I survive the living hell of solitary, but that my comrade Herman Wallace was released to die a free man and Albert Woodfox has also been released. The three of us made a vow to share our experiences regarding the horror of long-​term solitary in prison and continue to strive to have solitary outlawed in American prisons. We hold fast to that vow and make ourselves available to organizations and efforts nationwide that have committed themselves to this same effort. As I said when I left Angola, “I may be free of Angola, but Angola will never be free of me.” Our reach is much broader than Angola now, but the commitment is the same, to end solitary confinement everywhere as cruel, unusual, counter-​productive, and absolutely unnecessary.

Overcoming cement and steel: My struggle against solitary confinement As I sat down to write this I actually became absorbed with the isolation I felt as a prisoner once again. I was a prisoner in California prisons between 1979 and 2009 and spent a considerable amount of time in prison being in solitary confinement. I experienced the isolation as becoming as one with the cement and steel until it absorbs the very fiber of your being—​the cement and steel that attempts to crush your soul, the cement and steel that you must become harder than in order to survive, to exist in such loneliness and despair.

246  Sharing Experiences of Solitary Confinement Solitary confinement does not just come in the form of a SHU (security housing unit) cell or administrative segregation cell. While these are the most commonly referred to terms in California, the truth of the matter is isolation is used as a regular form of housing throughout county jails, federal detention centers, and even juvenile facilities. To be honest I  had blocked out many of the memories of solitary confinement, only choosing to remember the better moments, yelling through the vents or under my door. Going to outdoor activity and yelling through the fence. Any communication with others in solitary did not come easy and often times took quite some effort. I will not go into too much detail as to all the efforts taken because right now as I am writing this I cannot help but think of those that are being housed in isolation, of what they will endure today or of what they might be going through at this very moment. So I cannot play a part in nullifying the efforts of those being held captive, desperately seeking a way of survival, to repair the human instinct to communicate and to socialize, the very character that God has instilled in each of us going as far back to the creation of the Universe—​that it is not good for man to be alone. Some months prior to July 1, 2011, my son sent a letter announcing that he and his fellow prisoners were about to participate in a hunger strike. At that time he had been in solitary a decade but I did not think about it. But what that hunger strike did for me was awake the very torment that I had myself endured. I knew at that moment that the California Department of Corrections (CDC) would continue to justify this type of confinement and that there could be no turning back. I began to research and found letter after letter of those confined, entombed for decades and I knew this would be the fate for decades to come if we were not diligent in our efforts to expose these torture chambers. It was during the first hunger strike in the state of California that so much began to make sense of my own experiences, even after leaving prison—​for example, the despair I felt when I was given my own private office. I remember as I was moved from a big office with three other co-​workers to my own private office I felt an immediate feeling of hopelessness. I literally went to my boss at that time, Riz Campos, and asked him why was he mad at me? There was such a sorrow that filled me and I did not even make the connection of the effects of my time spent in solitary confinement. And then when the hunger strikes began, these types of memories came flooding back. The memories of lying on a bunk in administrative segregation, my heart beating so fast I would feel as if I could not breathe. I was one of the lucky ones in solitary, as I got mail and visits on a regular basis and I was able to shop at the canteen with money my loved ones from the street sent in. I was able to read books and magazines because I had friends and family on the outside who would send me the reading materials, stamps, and paper to communicate. But even with as much communication and support as I had from the outside world, the loneliness I constantly felt in the separation and

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disconnection from other people would sink in. I experienced many moments that attempted to overtake and kill my spirit as I stared at my surroundings of bricks and cement. I can’t imagine what it would have been like to be in solitary without outside support but the reality is that many are left in isolation only to be overtaken by the darkness of isolation. Recognizing how important that outside support was to me and for others attempting to survive solitary confinement led us to form a group, California Families to Abolish Solitary Confinement. This group originated as a result of the powerful, fierce voices of the families members with loved ones in solitary, and we are all founding members, still organizing to support the efforts of our loved ones inside prison. Recently, I was given a tour of Pelican Bay prison. I was on the Prison’s Inmate Family Council at the time and we requested and were granted this tour. As we were coming towards the end of the tour, Lieutenant Acosta looked over at us and said to us, parroting the line that CDC takes, “as you can see, solitary does not exist. They have a TV and they can play checkers through the vent.” At that moment, hearing those words “solitary does not exist,” I  could not be silent. I said, “Lieutenant Acosta, I honestly believe that when you say those words, you believe it. Because you have not experienced it, you have not had to lie in that bunk and look at those bricks, and close your eyes at night knowing your tomorrow is filled with the same nothingness.” I went on to tell him, “If you would have seen me in solitary you would have seen me yelling out my door, singing and even laughing. You would have thought it did not even phase me because to exist in solitary you must act, believe it does not even bother you, but if you would have seen the damage to my soul, the crushing despair or the thoughts of feeling forgotten that attempt to overtake you, the daily struggle within to survive, then you would know and understand that solitary does exist.” I will never forget the look that overcame him: For a moment, in his eyes, it was as if he was attempting to understand. He looked at me and took a deep swallow. I could see his throat move, as he said, “As you said, Ms. Canales, I cannot understand,” and not another word was spoken to convince us that solitary does not exist.

Solitary confinement In 1991, I went to Pelican Bay state prison on an indeterminate SHU term. I was housed in the D facility there, and it was scary in that I was only a young man exposed to an environment I had never experienced before in my life. I mean that solitary confinement was beyond my understanding. There was no windows in the cell. There was no normal and natural lighting. The air I breathed in the cell was pumped into me from a hole in the wall. It was as though I was thrust into an

248  Sharing Experiences of Solitary Confinement environment that was designed intentionally to kill me, to drive me insane and force me to debrief, which meant to become an informant as the only way out. And in fact, that was the rhetoric that was used in the SHU, that the only way out of the SHU was to parole, debrief, or die. I tried numerous manners, fashions, and ways to learn how to adapt, to exercise my mental faculties in order to retain sanity and not succumb to the isolation. I read books; in fact I consumed books voraciously. I had a friend named Margie Ghigz. She owned a bookstore and would send me literally thirty books a month and of course I passed books out and I shared with others. But I read numerous books from the migration patterns of the Peregrine falcon through the dancing Wu Li masters, and understanding physics. The variety was extraordinary. We learned and taught each other over the tiers and from cell to cell, yelling at each other; and we became pretty good readers and teachers. We educated ourselves because Pelican Bay did not provide us the opportunity to be educated in any other fashion or form. A lot of this we did not only for personal knowledge, but in that environment, in that situation where sensory deprivation was the goal of the Department of Corrections, we had to keep our minds working or eventually lose our minds, so we worked at anything we could. I took up writing there and I took up drawing there and of course I began to educate myself there. It was a form of sanity in a place where insanity was ultimately the outcome and in fact, the desired goal. I studied, I read, I wrote books, I told lies in order to fabricate stories in order to use my mind to imagine adventures that I thought I would never live in real life ever again. I was in solitary confinement and expected to be there the rest of my life until I died or lost touch with reality. So I struggled at times—​many people who are living in solitary won’t admit this—​but as a result of the solitary confinement, it affected my mind, physically as well as mentally. You begin to experience aches and pains and injuries that normally you would not understand why they happen because you wouldn’t know they existed. In solitary confinement your mind exposes you to this because the mind affects the way the body functions. A lot of people say, how’s that possible? Well, it’s like a dream: When you’re in a dream and you have a nightmare, you wake up and you’re breathing hard and you’re sweaty because the brain doesn’t know the difference between a dream and reality. That’s the way it is. In solitary confinement, the brain starts to play tricks on you and you start to experience things that you would not have experienced had you not been in solitary confinement, including injuries, increased aches and pains to the bones. You start to hear voices or you start to get paranoid. You experience all these things that take place in you and they do physiologically because the brain is telling you these things are happening to you, but it’s all in reality something that solitary confinement imposes

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on the individual’s mental capacity. Of course, I suffered anxiety, I suffered depression, suffered all those things that psychologists talk about and try to tell you: It’s all in your brain; let it go relax. I took up meditation. I read numerous books on transcendental meditation and yoga. You do all these things in order to survive. I guess ultimately I reached a point where I decided to stop trying to survive, and I gave up to insanity and told myself, look, go ahead, go crazy. Stop fighting against it. If you go crazy, at least you won’t understand your situation and you won’t have to suffer the results of isolation. It’s SHU syndrome, the term that they developed about isolation and all the things that are associated with it. You go crazy, then you don’t know reality and reality has no effect upon you or you die. One of the two. I finally a resigned myself to that. Those two possibilities never happened to me because at that time the hunger strikes started to get discussed and that gave me something to live for. We were all trying to survive mentally in this environment. There were not a lot of us who continued to be in solitary confinement for twenty, thirty, forty years, probably a few hundred. A  lot of people couldn’t understand how we were able to survive in that environment. Well, we relied heavily on each other. We became aware of each other’s existence and we tried to facilitate the strengthening of that existence. Pelican Bay was designed to isolate and separate. Well, what it did is it allowed us to get closer to one another to understand that we collectively suffered and endured the same as the other person. And we hurt, learned, and loved just like the person next to us. We became aware of our environment as a result of becoming aware of who we were and who our neighbors were. Solitary confinement at Pelican Bay was designed to destroy us. And it was working. Had we not been transferred out of Pelican Bay as a result of the hunger strikes and our lawsuit, we all would’ve eventually died, succumbed to insanity, or debriefed, although all of us would like to think not, that we would have hung on forever. I mean, the fact of the matter is one’s brain tends to play tricks on an individual, when your existence is confined to a windowless concrete box in a motionless environment, where deprivation and isolation and torture are ultimately always the goal, where everyone in authority is trained to lie and deceive and to deprive. Solitary confinement has no purpose other than to break men. When officials say that solitary confinement has a validity for justice and rehabilitation, that is deceiving you. Solitary confinement is designed for one purpose and one purpose only, and that’s to torture you and extract whatever information they can from the individual, whether true or false. I endured and I was lucky to endure to the point where I was let out and I was lucky to be let out because I don’t know whether I would’ve been able to endure one more single day.

250  Sharing Experiences of Solitary Confinement I am thankful that the people in the free world who took notice of the torture we were being subjected to. Torture is a crazy word, but I know no other way to describe our living condition, our existence in there, and I’m going to say existence because we weren’t living, we were simply existing and when you’re simply existing, you’re dying. If you’re not living, you’re dying. And that’s just the way it is. And we were dying. I am thankful for some courageous people in the free world who helped us, some people with compassion, who viewed individuals as being worth more than the worst thing they’ve ever done or viewed people as being more than the source of information for the purpose of control by the people in power in corrections or any branch of government. I am thankful to those who supported us. Even though everybody was telling them we were the worst of the worst, who you cannot support or care for, I’m in the free world now. Within twenty months of getting out of the SHU, I was able to get paroled from prison. I am now in the free world and once in the free world I got a job and now I’m helping other people become acclimated to freedom so that they can contribute to the world. In solitary confinement we had nothing positive in our lives. Therefore, it was difficult for us to change who we were in order to improve our existence because we were exposed to nothing that was positive. Solitary confinement is a way of closing you off, of shutting your progress off, of depriving you of the information and the knowledge one needs in order to alter or become a better person than that person whom other people are saying you are. How do people grow without being exposed to things that will allow us to grow? How do we make better choices when we’re not allowed to explore other choices? How does one become a better human being in a world that requires human contact when you’re deprived of that? Well, fortunately for us, we’re exposed to those things now. Fortunately for me, I am an example of that type of advancement of human nature when one is allowed the opportunity to advance. I am now in position to help those who still don’t understand because they’ve been deprived of areas of information for knowledge, for personal growth. Solitary confinement almost killed me, not only physically, but it profoundly affected me mentally to this day. I still have nightmares about being buried alive. To this day I still see the anger and the disregard in the eyes of those who were in charge of keeping me confined, and those who were in control of my very existence. I am glad that solitary confinement has now come under scrutiny. I would like to say it has been eliminated, but unfortunately it still goes on. It just has a different name, a euphemism like restricted housing, security housing unit, segregated housing. It’s like the California Department of Corrections, they changed the name to the California Department of Corrections and Rehabilitation. The function is the same, the name has changed. How do we change the system? What needs to be done now is eliminate the use of confidential information

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to place people in solitary for long periods of time. People will say anything in order to not suffer the torturous effects of isolation, solitary confinement. I survived and appreciate the love and support I now receive in the free world, I want to be a better person and people around me are helping me be a better person by allowing me the opportunity to contribute to the world and to contribute to people in a positive manner. When you stop thinking for yourself, when you start accepting what others tell you, which is something other than you believe, then you have relinquished your existence and you are trapped in solitary confinement. Solitary confinement was wrong when it was started in penitentiaries in Pennsylvania in the early 1800s. It is wrong now in California. It is against human nature. End solitary confinement. We need to allow people who have committed crimes the opportunity to redeem themselves so that they can once again become part of a society that they would want to take part in, in order to contribute positively in. That is my story and the lesson I have learned.

A correctional official looks at working in administrative segregation When I worked in the Administrative Segregation units at the Colorado State Penitentiary (CSP), the daily tasks required intensive tasks of doing things for the inmates that most inmates and people generally do for themselves. Just getting through those tasks was pretty consuming. The daily things that we would do for an offender included a three times a day feeding operation, laundry collection, the giving out of supplies if needed, daily interactions, security rounds, and welfare rounds of the offenders. We were trying to kind of move through, get through our operations and things of that nature, so detailed communication with the offenders wasn’t something that normally occurred. Just because we were trying to get through those day halls and do what we can for the next operation, and considering we were under thirty-​minute rounds, I mean you had to get in, you’d get a few things done in the office to get back out again and walk again, so you saw them frequently, but the longevity at their door as individual personal communication was limited at that time. I think the offenders felt that as well, so the only communication they had was amongst each other and in some instances that can be volatile towards each other, ranging from whether they just had personal issues to gang affiliation issues. So the brief interaction we were able to give them wasn’t enough, so they harbored some hostility towards us, with very impersonal interactions, and feeling that the guards don’t really care, they’re just here to do the job. Everything was done through the closed steel door to the cell so there was no real, real true communication. Those barriers between the

252  Sharing Experiences of Solitary Confinement door made it easier for the communication between inmates and staff to become hostile, angry, aggressive, threatening. Staff became aggressive, kind of antagonizing to some extent, and not necessarily out of intentionally trying to be antagonistic, but just the aura, or just being in prison in that kind of setting, and just those limitations of true communication probably caused miscommunication and hostility. The units were very loud; if you were in there they were going to get your attention banging on the doors, yelling at each other, screaming at each other, screaming at us, “Why aren’t you this? I asked for this last round, you didn’t bring it this round.” It was very, very hostile. Your heart rate went up a little bit and your anxiety went up every time those doors were open, because you didn’t know really what you were going to walk into. You could hear the noise from the outside. Once you’re in there, it’s amplified to the utmost at that point, and sometimes they joined together and they wanted to make some noise, make their presence known—​like okay we’re here, you’ve made us mad, we’ve joined together now, now you’re going to hear it extra loud. Kicking doors, banging doors. There were a few of the bigger offenders, you could see they were getting mad, they were pulling at the doors, and it’s rattling and you think it’s going to move, and you really don’t know. It’s a manmade object, so it is defeatable if they really wanted to. Because all communication was behind the door and not face to face, the inmates seem more apt to speak their mind, aggressively designed to make the officer angry; they know the door is there, so they are going to have the attitude that, well you made me mad, so I’m going to say all of this stuff knowing that this door is here. So, I  think it made them more aggressive, because there really wasn’t repercussions to speaking your mind. You’re behind that door, you’re escorted around. There is no free movement. So, to me it emboldened them to be extra-​ aggressive, because of their knowing there were no repercussions from the other offender. When I worked in the old supermax, in administrative segregation, the tension was palpable between the offenders and the staff. The work brought out emotions in me, which often by the end of the day, were not positive. One would like to think that one can disconnect from what happens on the job, but in some sense the level of violence and the dangerous nature of the situation we faced would stay with me. I have no doubt that my family felt the effects. It was a hard situation for everyone involved; even though the staff didn’t experience the same level and hostility as the offenders, it also had a negative impact on us. Now that there is no longer administrative segregation at CSP, it’s been an evolution, both for staff like me and for the offenders. You have offenders that have a real buy-​in, because now they are seeing that okay, there’s some progression and

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there are incentives they are going to be given if their behavior is okay. Everything is not just behind this door, but if I behave well out in the day hall I actually have to have true communication with other individuals, truly living with somebody else, not just in a cell by yourself, now you are sharing a whole day hall with each other. You’re sharing the shower. You’re sharing the workout material. You’re sharing the entertainment things that we provide, such as checkers, dominos, so there is definitely a social aspect they are getting used to with one another. And I think that to some extent just provides them with a little bit more of humanity, a little bit more chance to have some normality, as close as it can be in this setting. And then with us, it gives them more independence so in turn gives us more independence. So, I don’t always just have to be dealing with this through the door. To some extent they can take care of a lot of things on their own, or if they need things at that pressing moment, it’s more expedient to get to them versus me having to wait every thirty minutes to go around the yard. Hey, my guys are roaming around. Hey can you grab this tie for me or can you take care of that? So, I think it adds more of a working relationship of staff to offenders just because they have more access to us. I think it puts more responsibility on the offender. Like they got to bring the laundry out. They got to come up to the front for medications if they’re out in the midlines there. They soon have to take a little bit more of responsibility for their own life versus knowing somebody is going to come to your door drop their trays off, hold it out. It makes them have to take more of an interest in their own routines, and that’s important. I mean that’s what normal society is doing. No one is going to take and grab my laundry, I have got to take my laundry, or I got to make my food. Even though they don’t make food, they got microwaves. They have social gatherings, they do their food together and that seems really important to them, because they do it at minimum once a week. They get the canteen, they get together, let’s get the burritos, you bring those greens, I bring that green. They’re cooking together. It’s like a little family get-​together. To us it looks like, aw man, why is it so important to them? But you take those things for granted; when you’re in here, that little normality can go a long way to a person’s psyche, a lot of pro-​social behavior. Now that we are not working in administrative segregation it changes the nature of our job, reduces the time it takes to do the daily tasks and gives us more time for interaction. For example, you still roll the laundry cart, you go along the outside, but I think logistically it’s a little bit better manpower-​wise, I mean it doesn’t require two up-​two down to walk those areas. You can have one person set the cart and mark down, throw it in here. I think it reduces the usage of staff, because it makes the inmates more responsible. It has to make them actually do a little bit of work for their own well-​being. They’re not making it work for us, they’re working for themselves.

254  Sharing Experiences of Solitary Confinement I think the new environment reduces our stress and tension and the hostility between the staff and offenders. It also provides us opportunity to do the other things that actually should be more of a priority, such as providing better security, observational skills. You know we have to be more self-​aware versus we’re just responsible for this laundry. Like we have a team to do that, we got another team kind of doing their own thing amongst our other duties, like running yards and things of that nature, and I think it just kind of opens up a little bit more of a freedom for us to be more engaged as well as the offenders. It made me less resentful of the offenders because I didn’t have to do everything for them. It causes less friction between staff and offenders. It made my job more meaningful because I didn’t have to be a total caretaker. I was responding to less hostility towards staff, because the offenders’ hostility towards staff was greatly reduced. The biggest benefits of the reforms is that for offenders who truly have a buy-​ in for this, they are provided the most stable environment we can give them in those day halls, whether it be just custody issues, or SEG affiliation. If we could find the perfect answer to that, as well as like medication, everything has to come into focus. Offenders who have true buy-​in for that, I think it gives them an opportunity for true progression, it really does. We had an offender, Keith Durant. I’ll use him as an example. During his isolation and segregation, a vol­ atile, volatile human being, aggressive, strong, angry, bitter, pretty much any negative description you could give, he embodied that and he demonstrated it. I mean he was dangerous. I’m a pretty strong guy and there were six other pretty strong guys and it took all of us to keep him down, to restrain him when we did cell checks. He’s that strong. I  don’t know if it’s just will strength or what, because he’s not a big individual, but he’s got power, and us doing the segregation and the fighting aggression with aggression so we could subdue him wasn’t working. It just meant for a hostile, tense, aggressive environment both for him and us. But providing visits, providing where he was able to get contact visits, providing a job opportunity, the ability to progress, the ability to socialize changed him and it changed our relationship to him, that is because he’s a social individual. I mean once he got in the day halls and everything kind of came together and all of the stars aligned in regards to his treatments with medication, just social avenues to find acceptance, the right people he’s living with, he excelled. He stood right next to officers. One officer helping him do laundry, without the tension, violence, and aggression that used to exist between him and us. You go from six men having to restrain him to standing to one officer helping him do laundry, that’s huge, that’s huge. And it may seem like one story, but that’s one less person that we have to probably worry about in society. That’s just one example, it’s huge.

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Because I saw the evolution of that example from where it was to where it ended up before he left, and to me that was huge. And there’s tons more, but that’s the one that stood out to me the most, because I just knew where he had come from. That’s huge and we are not naïve. Not every individual is going to buy into it. But, that’s like in anything, you can’t not take the chance because the other ones aren’t. You got to take the chance on the ones that will, and I think it’s starting to do that, I think it really is. I don’t think I would go back to the way we did things before. I don’t think it worked and I think being where we are now, to truly go backwards would be a disservice to not just to offenders, but just to us in general. I don’t think we really remember how to work that way anymore and I think we evolved into this transition, and at first because we had to, I think more so now it has certainly because we want to. Because we want to progress and if we keep beating it to death these people are eventually they’re going to be next to us one day, and they’re going to remember who supported the transition and who supported hopefully their development, versus people who just wanted to send them back. And like anything, you’re going to have people who are going to state it was better the other way, but when you really think about it, it really wasn’t. It really wasn’t and I know for me personally, I mean I hope I never have to be in this kind of position, but administrative segregation, I would never want that as an option for me or a family member. And then there are offenders who would prefer ad seg just because I think they realize now that they have to actually communicate and you’re responsible for what you communicate. You are going to be held to account for what you say. There is no longer a locked door anymore, it’s that person right in front of me. They have to get used to it, because if you are going to be in society, that’s how it is. If you have a disagreement with somebody, it’s going to be face to face, not from behind the door, so don’t you want to try to figure out now pro-​social, acceptable ways to deal with one another? And I think with staff, I think what they are finding is that the ones who don’t want to stay and work in the new environment are the ones that don’t want to adapt or realize I wasn’t communicating properly as well. And so, it makes the staff evolve. And I don’t always have the perfect communication skills. Perfection is not what we’re looking for. We’re looking for someone who is willing to try, willing to try to be, whether it’s officer or offender, to be the better of that title. But what I can do is I can treat that person with respect and dignity. You can communicate with them, get them the proper treatment if they have a psychological issue. Give them opportunities to focus that energy and I think that’s what

256  Sharing Experiences of Solitary Confinement we’re trying to do right now, and it isn’t perfect, it never will be. We’re human beings, perfection is not obtainable, but attempting to do what’s better for one another, attempting to do what’s better for society, for ourselves working here. I think that’s worth making that attempt, and I think it’s slowly starting to show progress. It’s going to have kinks and it’s going to evolve and we’re going to see a hole and we’re going to try to fill that hole, and we may make another one, but we’ll fill that hole. It’s all about finding the right solution to particular problems, getting the stars to align, so the new situation can work. I believe it really truly can work.

PART III

PR ISON R E FOR M , PR ISON L IT IG AT ION, A N D HUMA N  R IG H T S

15

The Management of High-​Security Prisoners Alternatives to Solitary Confinement Andrew Coyle*

Introduction I first entered the closed world of prisons in 1973 as an assistant governor (warden/​superintendent) in the Scottish Prison Service. Much of my operational career was spent in managing high-​security prisons that held men serving very long sentences. This meant that I had to resolve the practical challenge of how to deal with these men in a decent and humane manner while ensuring that the prison was a safe place for prisoners and staff, that the public was protected from any potential threat, and at the same time that the men had some expectation of hope for the future. I have spent the last twenty or so years in academia researching the legal, philosophical, and moral basis of imprisonment and also working internationally to increase the professional standing of prison and correctional staff. These are the experiences that inform this chapter. During my first visit to prisons in North America, I witnessed the beginnings of what was to become the “supermax.” This chapter describes efforts in one jurisdiction, Scotland, which was able to move relatively successfully from the dark days of violence and rioting to a more positive ethos for the management of long-​term prisoners. Thirty years after my first acquaintance with prisons in the United States and Canada I was called back to these jurisdictions to give expert evidence in court actions about the latest generation of successors to the “supermax” in Marion Penitentiary and the “special handling unit” in Millhaven Correctional Center. This chapter ends with a distillation of the principles which should be applied in the management of prisoners who are required to be held in conditions of the highest security. * Emeritus Professor of Prison Studies, University of London; Founding Director, International Centre for Prison Studies in the School of Law, Kings College London; and former prison governor, the United Kingdom Prison Services. Andrew Coyle. The Management of High-Security Prisoners In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0015

260  The Management of High-Security Prisoners

The context Before dealing with the substantive issue of the management of high-​security prisoners and alternatives to solitary confinement, it might be useful to begin with some observations on the nature of imprisonment itself and its use. Over recent decades the use of imprisonment as a form of judicial punishment or penal sanction has increased significantly in many countries.1 This has led one commentator to remark: Certainly the speed with which imprisonment superseded other traditional forms of legal punishment, and has come to represent a largely unquestioned resource of the criminal justice system, might give us pause and lead us to wonder whether it is not too convenient a device for dealing with the complexities of human failure.2

In the majority of countries in the world imprisonment is the most severe punishment that can be imposed by a judicial authority.3 In common with all criminal court sentences this punishment is essentially retrospective in nature. The task of a criminal court is to make a judgment as to whether the crime that has been committed and the convicted person’s culpability for that crime are so serious that the individual concerned should be deprived of liberty and, if so, for what period of time. Once the court has passed judgment the convicted individuals are placed into the custody of a prison or correctional administration, which then has an obligation to treat them decently and humanely and to help them prepare to lead law abiding lives after release. In the words of Article 10 of the International Covenant on Civil and Political Rights, “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”4

1 Data on rates of imprisonment in countries around the world are to be found in the online database World Prison Brief hosted by the Institute for Criminal Policy Research, Birkbeck, University of London: www.prisonstudies.org. For a useful overview of the dramatic increase in the use of imprisonment in the United States in the last three decades of the twentieth century, see Marc Mauer, Race to Incarcerate (New York: The New Press, 1999). 2 Kleinig J, “The Hardness of Hard Treatment,” in Fundamentals of Sentencing Theory, ed. Ashworth A and Wasik M (Oxford: Clarendon Press, 1998), 277. 3 Fifty-​seven countries still retain the death penalty in law (Hood R and Hoyle C, The Death Penalty: A Worldwide Perspective (Oxford: Oxford University Press, 2015), while thirty-​three countries retain corporal punishment in some form or another as a judicial disposal (Scheinin M and Meyerson M, “The Limits of Punishment,” in Routledge Handbook of Constitutional Law, ed. Tushnet M, Fleiner T, and Saunders C (Oxford: Routledge, 2013). 4 United Nations, International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by the UN General Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

Andrew Coyle  261 Most of those who are sent to prison are likely to accept, however reluctantly, the reality of their situation. Provided the restrictions that are placed on their liberty are proportionate and they are treated fairly, they will acknowledge the reality of their situation and will not try to escape nor seriously to unbalance the normal routine of the prison. However, in any prison system there may be a small number of prisoners who will be prepared to do everything within their power to disrupt the safety and good order of the prison and who, therefore, need to be held in conditions of high security. The management of these prisoners presents an important challenge to prison authorities, which have to achieve a balance between the threat that such prisoners would present to the public if they were to escape and the threat that they may pose to good order inside prison, against the obligation that the state has to treat all prisoners in a decent and humane manner. Later in this chapter we shall discuss some principles for the good management of these individuals.

North America in the 1980s I first visited prisons in North America in 1984. At that time I was working in the Head Office of the Scottish Prison Service where one of my tasks was to review the methods used for the management of prisoners serving long sentences. We were aware that changes in this area were underway in prisons in the United States and Canada and the purpose of my visit was to learn about these developments and to assess how they might contribute to new thinking in Scotland.

United States My visit coincided with a period of particularly dramatic change in prison circles in the United States, especially within the Federal Bureau of Prisons (BOP). At that time the BOP was responsible for around 45,000 prisoners, a far cry from the 184,000 whom it held in 2018.5 It was also a traumatic time in respect of escalating prison violence. One of the main responses of the BOP to this violence had been to create a control unit within its maximum security penitentiary in Marion, Illinois. The level of security within the control unit had to be higher than maximum (language sometimes takes on a whole new meaning in the prison world) and so was born the concept of “super maximum” or “supermax.” Violence continued even within the control unit in Marion and on one fateful 5 “About our agency,” Federal Bureau of Prisons, accessed July 30, 2018, https://​www.bop.gov/​ about/​agency/​.

262  The Management of High-Security Prisoners day in October 1983 two prisoners were able to attack correctional officers with fatal results. The BOP’s response was to create a new ten-​cell segregation unit within the control unit that was within the maximum security prison—​their own version of Dante’s nine circles of hell. In the course of my 1984 visit I had discussions with the then-​BOP Director Norman Carlson and several members of his senior operational team. They expressed a real concern that their immediate and pragmatic response to specific violent incidents might be forcing them down a blind alley from which there would be no return and that the creation of isolation units within “supermax” facilities would be self-​perpetuating. Their fears subsequently proved justified. The majority of US state Departments of Corrections now have at least one “supermax” facility and the concept has been exported to other countries. For a number of prisoners “supermax” has become a place from which there is no return. One example of this is Thomas Silverstein who was placed in solitary confinement after murdering a correctional officer in Marion in October 1983 and who remains in that situation thirty-​five years later.6

Canada In 1984 the Correctional Service of Canada (CSC) set up a study group to examine the circumstances and causes of a series of violent incidents that had recently taken place, including two prisoner murders and seven serious assaults in the Special Handling Unit (SHU) which had been opened in Millhaven Correctional Center in Ontario in 1977. The subsequent report of this group7 characterized the milieu in the Millhaven SHU as “idleness, tension and fear”; there was a “high degree of paranoia” and prisoners were labeled as “particularly dangerous.” The report noted that staff responded to these labels when dealing with the prisoners and in turn the prisoners expected violence in the SHU. The report made a number of recommendations, including the following: • Prisoners in SHUs should not be left to their own devices; the concept of a human warehouse is not acceptable. However difficult, a concerted effort must be made to provide opportunities, meaningful activities and therapies.

6 In 2014 a US Circuit Court of Appeals rejected a claim that Silverstein’s continued solitary confinement violated his constitutional rights. Ingold J, “Supermax Inmate Held in Solitary Confinement for 30 Years Loses Appeal,” The Denver Post, May 22, 2014, https://​www.denverpost.com/​2014/​05/​ 22/​supermax-​inmate-​held-​in-​solitary-​confinement-​for-​30-​years-​loses-​appeal/​. 7 Vantour J, Report of the Study Group on Murders and Assaults in the Ontario Region (Ottawa: Correctional Service of Canada, 1984).

Andrew Coyle  263 • Prisoners should have the opportunity and incentive to progress through clearly distinct phases towards their eventual release to a regular population. • Communication between staff and prisoners is critical and must be an integral part of the SHU program and phases. • The SHU must have an identifiable head and separate staff. • Staff selection and training is of paramount importance. In the course of my visit to Canada in 1984 I had discussions with Dr. James Vantour, author of the report, who shared with me his concerns about the need for CSC to improve the way it was dealing with its most problematic prisoners. He emphasized the need for CSC to develop proper audit systems for admission to the units, individual management plans for the prisoners who were held there, and clear plans for eventual transfer out of the units. (The Millhaven SHU was closed in 1985.) As we shall see later in this chapter the CSC continues to wrestle with the issue of what is now described as administrative segregation. The learning, both positive and negative, from my visits to the United States and Canada in 1984,8 together with knowledge of similar developments in the Prison Service in England and Wales,9 influenced subsequent planning in the Scottish Prison Service as it developed an alternative model for the management of its prisoners who were serving long sentences.10

Scotland In a prison, as in many places in the outer world, there are commonly a few desperate fellows who set all means of control at defiance, and who are only to be restrained by physical means. But under good regulations a great majority of prisoners are quite tractable, and make no attempt to escape; and a skilful Governor soon becomes acquainted with their different characters.11 In the mid-​1980s the Scottish Prison Service (SPS) was rocked by a sequence of riots, hostage-​takings, and serious assaults in several major prisons. These culminated in an event which shocked the nation as several prisoners publicly 8 Coyle A, “The Management of Dangerous and Difficult Prisoners,” The Howard Journal of Criminal Justice 26, no. 2 (May 1987): 139–​52. 9 Home Office, Managing the Long-​Term Prison System:  The Report of the Control Review Committee (London: Her Majesty’s Stationery Office, 1984). 10 Coyle A, “The Scottish Experience with Small Units” in Problems of Long-​Term Imprisonment, ed. Bottoms A and Light R (Aldershot: Gower, 1987), 228–​48. 11 Inspector of Prisons for Scotland, Annual Report (London:  Her Majesty’s Stationery Office, 1837), 18.

264  The Management of High-Security Prisoners paraded a prison officer on the roof of Peterhead, the country’s maximum security prison, dragging him across the steep roof of an accommodation block with a chain around his neck in the full glare of international television cameras. The incident was brought to a dramatic but successful conclusion by an elite unit of the British Army.12 In the immediate aftermath of this incident in late 1987 it was decided that all prisoners who had taken a leading part in the riots and other similar incidents, as well as a small number of other long-​term prisoners who had been assessed as being particularly disruptive, would be located in Peterhead Prison. In all, there were about sixty prisoners in this group. This arrangement was intended to allow all other prisons holding long-​term prisoners to return to normal regime with full activities for all prisoners. As part of these new arrangements I was asked to take command of Peterhead Prison with the aim of gradually introducing a more positive and safe regime. When I arrived in Peterhead the sixty prisoners were held in conditions which to all intents and purposes amounted to solitary confinement although it was not formally defined as such. The traditional processes for managing prisoners had been suspended. The daily uniform for the prison officers who dealt directly with the prisoners consisted of what was described euphemistically as “protective clothing” and included a riot helmet, body armour, and a perspex shield. A number of the prisoners had smeared their cells and themselves with their feces and assaults on staff were a regular occurrence. Within months the first tentative steps of a return to normal regime began in Peterhead. • One of my first actions was immediately to place all the prisoners involved under Prison Rule 36, which was the formal authority to hold them in solitary confinement. This ensured that they were entitled to the procedural safeguards that this Rule included. • One of these safeguards was that each prisoner had to be visited daily by the governor of the prison. My deputy and I shared this duty every day, entering the cell of each prisoner and talking to him directly. Sometimes the conversation would be brief and formal; at other times it would be extensive, on occasion amenable and on other occasions with the prisoner using very colorful language to complain about the way he was being treated. In addition to being a legal requirement, I  knew that these daily exchanges allowed each prisoner to vent his anger directly at the most senior person in the prison rather than at the more junior members of staff who dealt with him throughout the day. (In addition to meeting a statutory obligation, this

12 Coyle A, “Prison Governor” in Incident Command:  Tales from the Hot Sea, ed. Flin R and Arbuthnot K (Aldershot: Gower, 2002), 189.

Andrew Coyle  265 practice was a good example of the “dynamic security” described later in this chapter.) • Within a short period of time we began the process of removing individual prisoners from Rule 36 conditions. The first step was to allow the prisoners involved to circulate throughout the day in small groups of three and in due course in groups of ten. They took part in various activities and had regular group discussions with senior members of staff, including myself.13 • A crucial element in the timing and nature of each of these developments was prior discussion with the staff who had to deal directly with the prisoners on a daily basis. Their physical safety was a shared overarching priority. Their representatives expressed this to me in graphic terms:  “Governor, never again must we see one of our colleagues dragged across the roof of the prison with a chain around his neck.” At the same time, they wished to move on from the stressful arrangements which required them to take up duty each day wearing heavy and uncomfortable riot gear as they faced angry and unpredictable prisoners. • By the time I left the prison over two years later the number of prisoners on Rule 36 had been reduced to ten and plans were in hand to reduce that number still further. The vast majority of prison officers had reverted to wearing normal uniform rather than “protective clothing.”14 In response to these and other developments the SPS embarked on a radical review of all its policies for the management of prisoners serving long sentences. The final output of this review was the publication in 1990 of a new strategy document, Opportunity and Responsibility,15 which laid out a comprehensive set of arrangements for the future management of all long-​term prisoners. There were two main principles underlying the new strategy. The first was the need for the SPS to be proactive in its management of long-​term prisoners in order to ensure that the greatest number of them could serve their sentences positively in what was known as “the mainstream,” that is, in general accommodation. The second was a determination to minimize and eventually to eliminate the use of solitary confinement for the remaining small number of prisoners who could not be held in general accommodation. This was to be done by the creation of a number of small units which would “provide a range of additional opportunities geared to

13 Freeman J, “Air of Hope in the Granite Fortress,” Glasgow Herald, July 8, 1989. 14 The story of Peterhead Prison during this period is told in greater detail in Coyle A, “Bad Prisoners or Bad Management?,” chap. 7 in The Prisons We Deserve (London: Harper Collins, 1994), 91–​106. 15 Scottish Prison Service, Opportunity and Responsibility:  Developing New Approaches to the Management of the Long Term Prison System in Scotland (Edinburgh:  Her Majesty’s Stationery Office, 1990).

266  The Management of High-Security Prisoners the personal development of such prisoners within a small supportive environment” and would “return prisoners to the mainstream better able to cope and to make progress towards release.”16 This was not a new concept in the SPS as the first such unit had been the Barlinnie Special Unit, opened in 1973 and still very much in use at the time in question.17 The unit had a very secure perimeter as it was in the center of Barlinnie, the largest prison in Scotland. Within this perimeter the eight prisoners which it held had virtual freedom of movement and were involved in a wide range of activities. The prison officer personnel were specially selected volunteers who worked closely with the prisoners. Prisoners and staff held weekly discussion meetings. There was support from a psychiatrist and a psychologist as well as a range of teachers and therapists. Members of the prisoners’ families were also encouraged to visit.18 Following the disruptions of the mid-​1980s a second unit, with accommodation for twelve prisoners, was built within another large long-​term prison (Shotts). It opened in 1990 and its first prisoners came mainly from the group who had been held in solitary confinement in Peterhead.19 It operated on the same principles as the Barlinnie Special Unit. A third unit with ten places was created in Peterhead Prison. Finally, there was a fourth unit in another long-​term prison (Perth). This had space for four prisoners and was used as interim accommodation, on average for a period of up to three months, for prisoners who had been in solitary confinement and who were preparing for return to general accommodation. In 1992 the SPS commissioned an independent evaluation of the Barlinnie and Shotts Units, particularly to consider the extent to which each of the units were meeting the objectives set out in Opportunity and Responsibility. The report on this evaluation was published in 1994.20 While there were a number of specific areas of criticism of the operation of both units, the evaluation was generally positive. In respect of the future of the Barlinnie Special Unit (BSU), the report listed a number of options. The first of these was recorded as follows:

16 Scottish Prison Service, Opportunity and Responsibility, 59. 17 Cooke D, “Containing Violent Prisoners: An Analysis of the Barlinnie Special Unit,” The British Journal of Criminology 29, no. 2 (Spring 1989): 129–​43. 18 Carrell C and Laing J (eds.), The Special Unit: Its Evolution Through Its Art (Glasgow: Third Eye Centre, 1982). 19 To coincide with these developments, I transferred from Peterhead to Shotts as governor, to develop it as the main maximum security prison in Scotland. 20 Scottish Prison Service, Occasional Paper No 7:  Barlinnie Special Unit and Shotts Unit:  An Assessment (Edinburgh: Scottish Prison Service, 1994).

Andrew Coyle  267 The Unit could be closed down. We do not regard this as a serious option that merits further discussion. The achievements of the BSU are their own justification.21

Notwithstanding this conclusion, the Barlinnie Special Unit was closed in January 1995. In its Annual Report for 2002–​2003, the SPS noted without comment that “the Shotts Unit closed in January 2003.”22 The principles in Opportunity and Responsibility have stood the test of time and the SPS has a good record of holding the vast majority of its long-​term prisoners in general accommodation in a safe and secure manner. No reason was ever given publicly for the closure of the Barlinnie and Shotts units. It may have been that a new administration concluded that, since the violence and disruption of the 1980s had receded and the new system of a more positive management scheme for long-​term prisoners had been successfully implemented, they were no longer needed. However, the closure of the dedicated small units in the SPS has meant that at any one time a handful of prisoners who cannot be held in gen­ eral accommodation for a variety of reasons are held for varying lengths of time in what amounts to solitary confinement under Prison Rule 95 (formerly Rule 36).23 Following its visit to the United Kingdom in 2012, the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment expressed concern about this practice of holding prisoners “in administrative solitary confinement for preventative purposes.”24

Canada: The Ashley Smith Coronial Inquiry In October 2013 I  was called to give expert evidence in the Inquiry by the Ontario Coroner’s Court into the death of nineteen-​year-​old Ashley Smith, who had died as a result of self-​inflicted strangulation in October 2007 in the Grand Valley Correctional Institution for Women while staff watched her on video screens. Ashley had spent several years in juvenile institutions and as soon as she turned eighteen, she was transferred to the custody of the Correctional Service of Canada (CSC). In the course of the following eleven months she was transferred from one federal prison to another on seventeen occasions, detained for 21 Scottish Prison Service, Occasional Paper No. 7, 32. 22 Scottish Prison Service, Annual Report & Accounts 2002–​03 (Edinburgh: The Stationery Office, 2003), 37. 23 Scottish Statutory Instruments 2011, No. 331 (Edinburgh: The Stationery Office, 2011). 24 Council of Europe, Report to the Government of the United Kingdom on the Visit to the United Kingdom Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 28 September 2012 (Strasbourg: Council of Europe, 2014), para. 71.

268  The Management of High-Security Prisoners almost all of that time in administrative segregation. On several occasions she made attempts to take her own life.25 On 19 December 2013, after hearing from 83 witnesses over 107 days, the coroner’s jury returned a verdict of death by homicide and made 104 recommendations.26 In the course of my evidence-​in-​chief and subsequent cross-​examination, I gave testimony, among other matters, on current international standards and norms on administrative segregation and made reference to the guidelines on the use of such segregation for vulnerable prisoners and those at risk of harming themselves. I also described the strict limits that guidelines place on resort to segregation and the reasons for these restrictions. My evidence referred to the fact that “segregation” is a generic term which can be interpreted in a wide variety of ways. In its widest sense, it implies that some form of restriction is placed on the degree of association a prisoner may have with other prisoners. There can be varying degrees of segregation. For example, a prisoner may be kept in a normal cell but be limited as to which other prisoners she or he can mix with or the activities in which she or he can participate. The most restrictive form of segregation amounts in effect to isolation, during which a prisoner will be held in a special cell, very often within a segregation unit, and will not be allowed to associate with any other prisoner. It was put to the jury that this form of isolated segregation should be used only within narrow parameters when it has been concluded that there is no alternative. There should be clear protocols as to the type of behaviour or threat that might lead to the imposition of segregation, about the level or grade of staff who are entitled to impose segregation and the procedures for doing so, and about the length of time for which segregation may be imposed. There should be a formal procedure for regularly reviewing segregation in each individual case and its use should be subject to independent review. In addition, prisoners held in administrative segregation should have access to normal facilities and activities as far as is possible. These should include access to visits, use of the telephone, canteen (commissary), exercise and showers, radio and other electronic items, and educational items. In oral testimony, I expressed the opinion that the use of administrative segregation within CSC did not meet these standards. My testimony referred in the first instance to the specific case of Ashley Smith, but I indicated my understanding, based on reports, for example from the Correctional Investigator, that this applied more generally in the use of administrative segregation within CSC. 25 Carlson KB, “Mother ‘Elated’ as Ashley Smith’s Jail Death Is Ruled a Homicide,” The Globe and Mail, December 19, 2013, https://​www.theglobeandmail.com/​news/​national/​ashley-​smith-​inquest/​ article16052548/​. 26 Correctional Service Canada, “Coroner’s Inquest Touching the Death of Ashley Smith,” May 21, 2014, http://​www.csc-​scc.gc.ca/​publications/​005007-​9009-​eng.shtml.

Andrew Coyle  269 Particular attention was drawn to the role of medical and other health professionals in monitoring the use of administrative segregation in individual cases and their particular obligation to make decisions and to give advice in terms of their clinical responsibilities to prisoners as patients. My oral testimony referred to Principle 1 of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,27 which states: Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained.

There was extensive questioning about the benefits of external oversight and review of segregation placements and reference was made to the various forms in different jurisdictions, including judicial oversight, independent monitoring, and expert committees. Even in the best-​managed prisons questions will be asked from time to time about what is going on and complaints will be made. Independent inspection procedures protect the rights of prisoners and their families and they can also be a safeguard to staff in demonstrating that they are doing their difficult work in a proper manner. There is a distinction to be made between the periodic inspections carried out, for example, by the Correctional Investigator in Canada, and the continuous monitoring carried out by such bodies as the Independent Monitoring Boards attached to every prison in England and Wales. These two types of independent oversight, inspection and monitoring, should complement each other. Throughout the course of my involvement in the Ashley Smith inquiry I was greatly perturbed by the position taken by CSC. For many years the Correctional Service of Canada was widely regarded as an example of a progressive and caring prison system. Yet it came out of this inquest with its reputation badly damaged, not only by the way it had failed to care for Ashley Smith but also by the way it defended its actions in the course of the inquest and subsequently took issue with a number of the findings of the Coronial Jury.28

27 United Nations, Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution 37/​194 of 18 December 1982, Principle 1. 28 Correctional Service Canada, “Response to the Coroner’s Inquest Touching the Death of Ashley Smith,” 11 December, 2014, http://​www.csc-​scc.gc.ca/​publications/​005007-​9011-​eng.shtml.

270  The Management of High-Security Prisoners In its response to the Inquest findings the Government of Canada refused to accept that the CSC practice of administrative segregation in the case of Ashley Smith amounted to solitary confinement: To be clear, the term solitary confinement is not accurate or applicable within the Canadian federal correctional system. Canadian law and correctional policy allows for the use of administrative segregation for the shortest period of time necessary, in limited circumstances, and only when there are no reasonable, safe alternatives.

This assertion flew in the face of the finding of the Coroner’s Jury which recommended that “indefinite solitary confinement should be abolished.”29 In the course of giving my evidence to the Ashley Smith jury, I was questioned at length about the definition of solitary confinement by several of the counsel involved and by the jury. I expressed my clear opinion that the conditions of confinement for Ashley Smith constituted solitary confinement and I was not challenged on that opinion. The government response listed some of the “rights and privileges” which are available to prisoners in administrative segregation in CSC: Segregated inmates are entitled to all the rights and privileges of other inmates within the physical limitations of the segregation unit. There is frequent interaction with others, including staff and visitors, as well as structured contact with peers. Members of the institutional Citizens Advisory Committees also have access to all offenders in the segregation unit. Inmates are routinely provided with their personal effects, which can include books, television, hobby materials and other personal items.

After listening to evidence for twelve long months, the Coroner’s Jury had found that these provisions had not applied in the treatment of Ashley Smith. The response went on to state that there were “various aspects of the Jury’s recommendations that the Government is unable to fully support without causing undue risk to the safe management of the federal correctional system (emphasis added).” One of these was that the use of segregation and seclusion should be restricted to a maximum of fifteen consecutive days.30 However, in a subsequent Supreme Court case in British Columbia, in which I also gave expert evidence, in its judgment the court rejected the government’s security rationale:



29 30

Id., Recommendation 27. Id., Recommendation 29.

Andrew Coyle  271 As for whether a time limit would impose unacceptable constraints on the management of security, I accept Professor Coyle’s evidence that none of the recommendations of the jury at the Coroner’s Inquest Touching the Death of Ashley Smith—​which included that administrative segregation be restricted to no more than 15 consecutive days—​gives rise to undue risk to the safe management of a prison.31

United States: Pelican Bay In the case of Ashker v. Governor of California (2015)32 I was retained by counsel for the plaintiffs to provide an expert opinion on international and professional standards relating to confinement in Security Housing Units (SHU) and equivalent confinement. This case is covered elsewhere in this book, so I shall simply refer to the conclusion of my report: It would appear that management of the prisoners in the SHU can be described at best as reactive rather than proactive. The fact that so many individuals have been held for so many years in conditions which fail to meet basic standards of humanity betrays an absence of professional prison management. The documents which have been shown to me indicate that the Department of Corrections and Rehabilitation has made little if any effort to provide incentives to prisoners to reform themselves, even as they grow from middle age to old age. In my professional experience, when dealing with the most problematic prisoners there is an onus on prison management to create and develop an environment in which such prisoners will over the course of time be encouraged to begin the process of “correction” and “rehabilitation.” There is no evidence of such an approach in the Pelican Bay Security Housing Unit.33

As I was preparing the Pelican Bay report I came across a report of US Supreme Court Justice Anthony Kennedy’s testimony before a House of Representatives committee in March 2015. Justice Kennedy had this to say about the use of administrative segregation in the United States: And this idea of total incarceration just isn’t working. And it’s not humane. The federal government built—​what do they call them—​supermax prisons with isolation cells. Prisoners, we had a case come before our court a few weeks ago. 31 British Columbia Civil Liberties Association v. Canada (Attorney General), Supreme Court of British Columbia, 2018 BCSC62, para. 567. 32 Ashker v. Governor of California, Case No 4:09-​cv-​05796-​CW (N.D. Cal. 2015). 33 Id., Expert Report of Andrew Coyle, PhD, para. 47.

272  The Management of High-Security Prisoners The prisoner had been in an isolation cell, according to the attorney—​I haven’t checked it out—​for 25 years. Solitary confinement literally drives men mad . . . . We simply have to look at the system we have. The Europeans have systems for difficult recalcitrant prisoners in which they have them in a group of three or four. And they can stay together for three and four. And they have human contact. And it seems to work. It seems to work much better.34

In considering all of these issues today I frequently cast my mind back more than thirty years, to the beginnings of the US “supermax” in Marion Penitentiary and the reservations of Director Norman Carlson as previously described. I also remember a particular comment in the seminal report produced at that time by David Ward and Allen Breed: One of the greatest challenges to penal policy makers is the need to control the most violent prisoners in the country while at the same time exercising creativity in trying to devise and then try, on an experimental basis, activities that will not contribute to further deterioration of these inmates—​deterioration which can lead in turn to greater risks of serious injury to staff, other prisoners, and often to the community upon the inmate’s eventual release.35

Principles of good operational management in respect of prisoners who require to be held in conditions of the highest security An important measure of the professionalism of a prison or correctional authority lies in its ability to achieve a balance between the obligation that the state has to treat all prisoners in a decent and humane manner and the threat that a small proportion of prisoners are likely to present to the safety of staff or other prisoners or to the wider civil society. Based on extensive operational experience, shared with a wide range of experienced correctional practitioners from around the world, it is possible to identify some basic principles of good operational management in respect of these prisoners.36

34 House of Representatives Appropriations Subcommittee on the Supreme Court Fiscal Year 2016 Budget and the Federal Judiciary System (March 23, 2015)  (testimony by Justices Anthony Kennedy and Stephen Breyer), http://​w ww.c-​span.org/​video/​?324970-​1/​supreme-​court​budget-​fiscal-​year-​2016&live. 35 Ward D and Breed A, Report on the U.S. Penitentiary Marion, presented to the Committee on the Judiciary of the US House of Representatives (1985). 36 See, for example, Coyle A and Fair H, A Human Rights Approach to Prison Management: Handbook for Prison Staff (London: Institute for Criminal Policy Research, 2018).

Andrew Coyle  273

Minimum number There are several operational reasons why the number of prisoners held under high security conditions should be kept to a minimum. When implemented in a proper manner, high-​security supervision will be very resource-​intensive in financial, technical, and staffing terms. High-​security prisoners require close supervision at all times, and their freedom of movement and contact with other people need to be kept under close surveillance. Prison systems that keep a smaller number of prisoners in high-​security conditions are likely to be safer for both prisoners and staff. Where the numbers are small, staff will be able to identify the prisoners who need to be kept in these conditions and to ensure they are properly supervised to prevent escape attempts or other disorder.

Individual assessment of risk There should be a clear, well-​defined system for identifying which prisoners require to be held in high-​security conditions. The degree of risk they pose should be assessed on an individual basis. In the absence of proper individual assessment, there is a danger that a general assessment may be applied to all prisoners in a named group. When the European Committee for the Prevention of Torture inspected prisons in Turkey in 2000 it found that 15% of all prisoners were categorized as “dangerous” and were held in groups separate from other prisoners.37 There were two immediate operational consequences. In the first place, the task of identifying those who were actually the leaders of this group and who did indeed need very close supervision was made much more difficult. Secondly, those who were initially on the periphery of the group and who with proper management might have been encouraged to leave it were being sucked further into the group, which paradoxically increased their risk. A broad parallel with Turkey can be drawn from the experience in some states in the United States where many prisoners are held in Special Handling Units because of low level or historical gang affiliation.

37 Council of Europe, Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 24 July 2000 (Strasbourg: Council of Europe, 2001), para. 15.

274  The Management of High-Security Prisoners

Regular review of security level Security levels for individual prisoners should be reviewed at regular intervals throughout the sentence. Prisoners who are classified as being high security risks early in their sentences may become less so as a result of good management during the sentence. The prospect of progressing to a lower security category during the sentence can also act as an incentive for good behaviour.

Only necessary restrictions It is the responsibility of a prison system to detain all prisoners in conditions that are decent and humane, regardless of the crimes of which they have been convicted or accused. This obligation also applies to the treatment of high-​ security prisoners, and the restrictions imposed on these prisoners should be no more than are necessary to ensure that they are detained securely and safely.

The balance of security Security in a prison or correctional institution has three main elements: Physical security includes the architecture of the prison buildings, the strength of the walls of those buildings, the bars on the windows, the doors of the accommodation units, the specifications of the perimeter wall and fences, watchtowers and so on. It also includes the physical aids to security such as locks, cameras, alarm systems, radios and such. Procedural security refers to the variety of procedures which have to be in place to ensure that prisoners are supervised appropriately. It includes regular searching, both of physical spaces and of individuals. Depending on the security category of the prisoner, his or her personal property should also be subject to search from time to time. There should also be procedures that govern the regularity of checking prisoner numbers and how these checks are carried out. The same applies to arrangements from movements of prisoners from one area of the prison to another. Dynamic security is based on what is sometimes called direct supervision. It is provided by staff who are alert, who interact with prisoners, who have a direct awareness of what is going on in the prison, and who are experienced in working with prisoners. This kind of security is much more qualitative than the static security measures of physical and procedural security. Where there is regular contact between staff and prisoners, an alert guard will be

Andrew Coyle  275 responsive to situations that are different from the norm and that may present a threat to security or good order. The strength of dynamic security is that it is likely to be proactive in a way that recognizes a threat to security at a very early stage. It will operate best when staff are professional and well-​trained.

In a well-​managed prison there will be a balance between physical, procedural, and dynamic security, and the three elements will complement each other. This needs to be borne in mind when making arrangements for the management of high-​security prisoners. A  system that uses the dynamic security that comes from staff interactions and intelligence is likely to be more effective than one that relies exclusively on very restrictive hardware, technology, conditions, and procedures. When staff work directly with prisoners in a positive manner, they are more likely to be alert to changes in atmosphere in a unit and to changes in the behavior or attitude of individuals. This is less likely to be the case when staff come into direct contact with prisoners in a formal or perfunctory manner.

Specially trained staff Working with high-​security prisoners requires a special degree of professionalism, and staff who work in this environment need to be given special training. Personnel may be subject to particular levels of stress because of the need to be constantly alert. Prisoners may continually be assessing the strengths and weaknesses of individual members of staff and are liable to exert physical or emotional pressure on them. There should be a well-​being and support strategy for all staff.

Independent scrutiny In all closed institutions where people are held against their will, there is an ever-​ present danger of abuse and this is the case even in the best managed prisons and correctional institutions. For that reason the operation of the prison should be subject to regular independent inspection. This principle applies particularly to prisons that have the highest level of security.

Conclusion The basic principles underpinning prisons around the world have remained largely immutable for two centuries or more. Prisons are institutions where men

276  The Management of High-Security Prisoners and women who have been found guilty of a breach of criminal law, or who are accused of such a breach, are deprived of their liberty for a period set by a judicial authority. However, at least in some respects the reality of daily life for prisoners has changed in many countries over the years. Over the course of the last fifty or so years corporal punishment has been abolished in almost all democratic countries. Similarly, the disciplinary punishment of reduction in diet has all but disappeared. These are punishments from another age. The contributions to this volume demonstrate that we are gradually feeling our way towards an acknowledgment that the use of solitary confinement should also be consigned to history.

Bibliography Ashker v. Governor of California, Case No 4:09-​cv-​05796-​CW, (N.D. Cal. 2015). British Columbia Civil Liberties Association v. Canada, 2018. BCSC62 (Supreme Court of British Columbia, 2018). Carlson, KB. “Mother ‘Elated’ as Ashley Smith’s Jail Death Is Ruled a Homicide.” The Globe and Mail, December 19, 2013. https://​www.theglobeandmail.com/​news/​national/​ ashley-​smith-​inquest/​article16052548/​. Carrell, C., and J. Laing, eds. The Special Unit: Its Evolution Through Its Art. Glasgow: Third Eye Centre, 1982. Cooke, D. “Containing Violent Prisoners: An Analysis of the Barlinnie Special Unit.” The British Journal of Criminology 29, no. 2 (Spring 1989): 129–​43. Correctional Service Canada. “Coroner’s Inquest Touching the Death of Ashley Smith,” May 21, 2014. http://​www.csc-​scc.gc.ca/​publications/​005007-​9009-​eng.shtml. Correctional Service Canada. “Response to the Coroner’s Inquest Touching the Death of Ashley Smith,” December 11, 2014. http://​www.csc-​scc.gc.ca/​publications/​005007-​ 9011-​eng.shtml. Council of Europe. Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 24 July 2000. Strasbourg:  Council of Europe, 2001. Council of Europe. Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 28 September 2012. Strasbourg: Council of Europe, 2014. Coyle, A. “The Management of Dangerous and Difficult Prisoners.” The Howard Journal of Criminal Justice 26, no. 2 (May 1987): 139–​52. Coyle, A. “Prison Governor.” In Incident Command: Tales from the Hot Sea, edited by Flin R and Arbuthnot K, 176–​197. Aldershot: Gower, 2002. Coyle, A. The Prisons We Deserve. London: Harper Collins, 1994. Coyle, A. “The Scottish Experience with Small Units.” In Problems of Long-​ Term Imprisonment, edited by Bottoms A and Ligh Rt, 228–​48. Aldershot: Gower, 1987. Coyle, A., and Fair, H. A Human Rights Approach to Prison Management: Handbook for Prison Staff. London: Institute for Criminal Policy Research, 2018.

Andrew Coyle  277 Home Office. Managing the Long-​Term Prison System: The Report of the of the Control Review Committee. London: Her Majesty’s Stationery Office, 1984. Hood, R., and Hoyle, C. The Death Penalty:  A Worldwide Perspective. Oxford:  Oxford University Press, 2015. Ingold, J. “Supermax Inmate Held in Solitary Confinement for 30 Years Loses Appeal.” The Denver Post, May 22, 2014. https://​www.denverpost.com/​2014/​05/​22/​supermax-​ inmate-​held-​in-​solitary-​confinement-​for-​30-​years-​loses-​appeal/​. Inspector of Prisons for Scotland. Annual Report. London:  Her Majesty’s Stationery Office, 1837. Kleinig J. “The Hardness of Hard Treatment.” In Fundamentals of Sentencing Theory, edited by Andrew Ashworth A and Wasik M, 277. Oxford: Clarendon Press, 1998. Mauer, M. Race to Incarcerate. New York: The New Press, 1999. Scheinin, M., and Meyerson, D. “The Limits of Punishment.” In Routledge Handbook of Constitutional Law, edited by Mark Tushnet, Thomas Fleiner and Cheryl Saunders, 205–​216. Oxford: Routledge, 2013. Scottish Prison Service. Annual Report & Accounts 2002–​03. Edinburgh: The Stationery Office, 2003. Scottish Prison Service. Occasional Paper No 7: Barlinnie Special Unit and Shotts Unit: An Assessment. Edinburgh: Scottish Prison Service, 1994. Scottish Prison Service. Opportunity and Responsibility: Developing New Approaches to the Management of the Long Term Prison System in Scotland. Edinburgh: Her Majesty’s Stationery Office, 1990. Scottish Statutory Instruments 2011. No 331. The Prison and Young Offenders Institutions (Scotland) Rules 2011. Edinburgh: The Stationery Office, 2011. United Nations. International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by the UN General Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. United Nations. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted by General Assembly Resolution 37/​194 of 18 December 1982, Principle 1. Vantour, J. Report of the Study Group on Murders and Assaults in the Ontario Region. Ottawa: Correctional Service of Canada, 1984. Ward, D., and A. Breed. Report on the U.S. Penitentiary Marion, presented to the Committee on the Judiciary of the US House of Representatives (1985).

16

Resisting Supermax Rediscovering a Humane Approach to the Management of High-​Risk Prisoners Jamie Bennett*

The supermax has become a global brand, a form of imprisonment that has become appealing in the context of the risk society1 and a world of mass imprisonment. It has permeated around the world in the imaginary realm of the media and in the reality of penal practice.2 The supermax has been the subject of polarized responses encompassing both condemnation by its detractors and glamourization by its supporters. However, recent years have seen a loosening of the grip of populist punitiveness. The hold of practices, including mass imprisonment and the supermax itself, have been weakened, particularly in the United States. It has been argued that there are three primary reasons for this.3 The first is that there is a growing body of evidence that questions the effectiveness of imprisonment and instead suggests that it may be harmful to society as a whole. Second, declining rates of crime, particularly serious violent crime, across developed nations has meant that there is diminishing political capital from tough rhetoric. Third, the financial crisis of 2008 and subsequent economic crisis have meant that the approaches of the past are no longer affordable. It is therefore argued that now is the time to seek articulate alternative approaches to the problems of crime, criminal justice, and prison. This chapter focuses not on the supermax itself, although a brief description is offered as a comparator, but instead on articulating alternative forms of imprisonment for those prisoners considered to be dangerous and therefore to be * Governor, HMP Grendon & Springhill (2012–​19), and Research Associate, University of Oxford. I am grateful to Dr. Peter Bennett, former governor of HMP Grendon & Springhill and former director of the International Centre for Prison Studies, for comments on drafts of this presentation and for collaborating on a presentation that was the initial seed from which it has grown. 1 Ulrich Beck, Risk Society: Towards a New Modernity (London: Sage, 1992). 2 Jeffrey Ross, “The Globalization of Supermax Prisons: An Introduction,” in The Globalization of Supermax Prisons, ed. Jeffrey Ross (New Brunswick, NJ: Rutgers University Press, 2013), 1–​9. 3 Francis Cullen, Cheryl Jonson, and Mary Stohr, The American Prison:  Imagining a Different Prison (Thousand Oaks, CA: Sage, 2013).

Jamie Bennett. Resisting Supermax In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0016

280  Resisting Supermax held in conditions of high security. I  argue that alternatives to the globalized brand of the supermax can be found in localized and often historically established practices. While such practices are imperfect and limited in scale, they do contain elements of good practice worthy of our attention when countering what I believe to be a flawed and inhumane system of imprisonment. Rather than suggesting a reinvention of the prison, I argue that alternatives can be uncovered in the rediscovery of more humane and effective penal practices that have often continued to flourish in niches of prison systems, but may now be brought into the light and encouraged to reach full bloom. In particular I point out the rejection of the supermax approach in England and Wales and explore alternatives that have taken root in its place.

What is supermax? Supermax is a particular concept in penal practice. In physical terms, it has been defined as “large new prisons or units within existing prisons, designed to accommodate a regime of strict and prolonged solitary confinement, enhanced by high-​tech control measures.”4 Different states, however, define and categorize such institutions in different ways, so that there is significant variation.5 This makes it hard to be precise about the extent of their use, but estimates have suggested that over forty US states operate supermax facilities and these hold over 25,000 American prisoners,6 or nearly 2% of the prisoner population.7 This approach has also been exported around the globe.8 The supermax is distinguished from other forms of solitary confinement by its size and the duration of the confinement prisoners experience within it.9 In terms of size, these prisons may hold hundreds of people (for example, Pelican Bay in California held over 1,200), and they may be held for years and decades rather than days or weeks. The conditions often include legally minimal, or even sub-​minimal, access to goods and services,10 and highly controlled environments with a high degree of force being used.11 4 Sharon Shalev, Supermax: Controlling Risk through Solitary Confinement (Cullompton: Willan, 2009),  2–​3. 5 Leena Kurki and Norval Morris, “The Purposes, Practices and Problems of Supermax Prisons,” in Crime and Justice: A Review of Research, 28, ed. Michael Tonry (Chicago: University of Chicago Press, 2001), 385–​424. 6 Daniel Mears, “Supermax Prisons: The Policy and the Evidence,” Criminology and Public Policy 12, no. 4 (2013): 681–​719. 7 Roy King, “The Rise and Rise of Supermax,” Punishment and Society 1, no. 2 (1999): 163–​86. 8 Ross, An Introduction. 9 Shalev, Supermax. 10 Kate King, Benjamin Steiner, and Stephanie Ritchie Breach, “Violence in the Supermax: A Self-​ Fulfilling Prophecy,” The Prison Journal 88, no. 1 (2008): 144–​68. 11 Kurki and Morris, Purposes, Practices and Problems.

Jamie Bennett  281 The supermax is designed to hold those “deemed to be chronic troublemakers, dangerous and disruptive prisoners who cannot be controlled in general population settings, the ‘worst of the worst’ in the prison system.”12 In practice, however, a much broader range of people are held in supermax conditions. Over thirteen studies have been cited as evidence that “a seemingly non-​trivial number of inmates in supermax housing who do not belong in them,” including mentally ill people, or nuisance inmates who cause low-​level disruption and administrative inconvenience rather than a serious threat to others.13 The eye-​catching and quotable notion of “the worst of the worst” has proven to be an attractive façade, but in reality supermax deals with prisoners who face a wide range of complex issues and present a wide range of management challenges.14 The supermax is constructed upon, and reflects, a set of values deeply embedded in late modernity and neo-​liberal governance. In particular this is an approach founded upon the notion of risk, uncertainty, and how to manage these conditions. It purports to offer an approach to identifying, classifying, and managing the most dangerous prisoners, deploying architecture and technology in order to attempt to create an institution offering total control. The notion of the supermax also appeals to populist punitiveness, offering up a demonized group for the imposition of conditions of confinement that are often extreme. In addition, this form of imprisonment appeals to values of economic rationality. It is an approach that appears to provide economic efficiency by offering economies of scale and the deployment of modern technology for the efficient disposal of a particular group. This is also an approach that has spread through the globalization of crime and punishment practice. These are deeply held ideological beliefs that are not built upon empirical evidence, but reflect hegemonic political ideas.15 The effectiveness of supermax prisons is far from clear, and indeed they cause harm.16 The usual arguments presented for the development of supermax prisons were that they improved prison safety and order. There is however, minimal evidence to support this assertion.17 In contrast, there is substantial evidence of the significant detrimental effects on the psychological well-​being of prisoners,18 12 Shalev, Supermax, 4. 13 Mears, “Supermax Prisons,” 694. 14 David Lovell, Kristin Cloyes, David Allen, and Lorna Rhodes, “Who Lives in Super-​Maximum Custody? A Washington State Study,” Federal Probation 64 (2000): 33–​38. 15 Daniel Mears, “An Assessment of Supermax Prisons Using an Evaluation Research Framework,” The Prison Journal 88, no. 1 (2008): 43–​68. 16 Roy King, “The Effects of Supermax Custody” in The Effects of Imprisonment, ed. Alison Liebling, A. and Shadd Maruna (Cullompton: Willan, 2005), 118–​45. 17 Mears, “An Assessment of Supermax Prisons”; Mears, “Supermax Prisons”; Jesenia Pizarro and Raymund Narag, “Supermax Prisons: What We Know, What We Do Not Know and Where We Are Going,” The Prison Journal 88, no. 1 (2008): 23–​42. 18 E.g., Craig Haney, “A Culture of Harm:  Taming the Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behaviour 35 (2008): 956–​84; Craig Haney, “The Social Psychology

282  Resisting Supermax which may have an impact on future offending.19 In addition, there are questions about the wider political and social impact of promoting such forms of punishment, which nurture a “culture of harm” or even an “ecology of cruelty.”20

Globalization and localism The concept of the supermax has, despite its problems, proven to be “politically contagious,”21 spreading around the world as a globalized solution to particular local problems of penal security and control, and the management of risk.22 It is an example of how values, practices and institutional responses to crime have become, to a degree, globalized.23 However, one should avoid the risk of reifying “globalization” as a concept and set of practices. Such approaches“encourage[] us to believe that the local and the global are pitted against each other in some sort of battle for survival or supremacy which the former will inevitably lose.”24 Rather than seeing globalization as a fully formed artifact sweeping all before it, more cautious claims have been made for the idea of penal convergence. From this perspective: while we may see an acceleration of penal convergence in many ways, we are still a long way from global homogenization of punishment., which may never occur. To the extent that “penal globalization” does exist, its process and effects are uneven, but the influence of the USA undoubtedly retains predominance.25

This particular observation is significant as it not only describes globalization as a process of dissemination, emulation, convergence, and homogenization, but also, by highlighting the role of the United States, starts to reveal globalization as not a neutral, technical process, but instead a more complex set of relationships of Isolation:  Why Solitary Confinement is Psychologically Harmful,” Prison Service Journal 181 (2008): 12–​20. 19 Terry Kupers, “What to Do with the Survivors? Coping with the Long-​Term Effects of Isolated Confinement,” Criminal Justice and Behaviour 35 (2008): 1005–​16. 20 Haney, “A Culture of Harm,” 967. 21 Shalev, Supermax, 4. 22 Jeffrey Ross, ed., The Globalization of Supermax Prisons (New Brunswick, NJ: Rutgers University Press, 2013). 23 Katja Aas, Globalization and Crime, 2nd ed. (London: Sage, 2013). 24 Paul Kennedy, Local Lives and Global Transformations:  Towards World Society (Basingstoke: Palgrave Macmillan, 2010), 141–​42. 25 Michael Cavadino and James Dignan, “Penal Policy and Political Economy,” Criminology and Criminal Justice 6, no. 4 (2006): 435–​56, 438.

Jamie Bennett  283 of power and ideology. In particular, the ideas that are being disseminated and replicated are broadly those that reflect neo-​liberalism and the primacy of the market.26 However, these notions of globalization emphasize elements of consistency across countries and, it is suggested, rather underplay the importance of local cultures and practices that sometimes have deep historical roots. Indeed, it has been argued that the local is: ubiquitous and commonplace.  .  .  .  It absorbs, diverts and distracts us. It surrounds and envelops us, filling our lives with huge volumes of detail, information, attachments, pressures, expectations and demands, patterns, routines, responsibilities, pleasures desires but also familiar routes and special-​social niches . . . The ordinariness of the local and its powerful centripetal tendencies and attraction, pulling us inwards, affects everyone to a greater or lesser extent and usually the former.27

It is in this light that I argue that rather than looking to globalized brands such as the “supermax,” I  seek to discover alternatives in deeply rooted local practices. These alternatives are likely to reveal a wider range of exemplary professional practices along with a more heterogeneous set of social values capable of expressing international standards.

Alternatives in the United Kingdom It has been argued that in many ways the United Kingdom emulates US penal practices rather than those of Europe.28 However, one area in which this is not the case is in the imprisonment of those prisoners considered to be dangerous and disruptive and therefore requiring the highest security. Half a century ago and following a series of high profile escapes and disorder, a notable debate took place regarding the future of high-​security prisons. On one side, Lord Mountbatten, a member of the royal family who had distinguished himself in military and diplomatic service, produced an official report recommending that those prisoners presenting the greatest risk should be concentrated into a single prison establishment that would be built on an 26 Emma Bell, Criminal Justice and Neoliberalism (Basingstoke:  Palgrave Macmillan, 2011); Emma Bell, “The prison paradox in neoliberal Britain,” in Why Prison?, ed. David Scott (Cambridge: Cambridge University Press, 2013), 44–​64. 27 Kennedy, Local Lives and Global Transformations, 7. 28 E.g., Michael Tonry, Punishment and Politics: Evidence and Emulation in the Making of English Crime Control Policy (Cullompton: Willan, 2004).

284  Resisting Supermax uninhabited island and from which it would be impossible to escape.29 Although this model had some differences from the contemporary supermax, in particular its offering of a fuller regime for prisoners, it did nevertheless share some similarities in terms of its concentration of prisoners identified as problematic and its use of technologies of control. In opposition to this, pioneering criminologist Sir Leon Radzinowicz led an official review that resulted in the recommendation that several prisons should be constructed that would offer high levels of security along with positive regimes. These prisons would house prisoners of the highest security classification along with those of a lower categorization.30 This “dispersal” model was eventually adopted and continues to form the basis of the policy towards high security prisoners in the United Kingdom. The approach has proven to be resilient. Following a series of high-​profile escapes in the mid-​1990s, an official report recommended the establishment of two specialist prisons for prisoners who presented an escape risk or a control risk, respectively.31 A subsequent working party eventually recommended the opening of a single prison that would carry out both functions, but this was abandoned due to the potential costs and because its relevance lessened as high-​security prisons became more ordered and the peace process in Northern Ireland saw the release of some of those that would previously have been candidates for the new facility.32 The concentration of high-​risk prisoners into supermax-​style prisons has therefore never become reality in the United Kingdom. The dispersal approach, while not without its critics,33 has at least provided a more normalized environment for long-​term serious offenders and their conditions of confinement. In these conditions, considerations of legitimacy are important as the regimes that do not rely upon physical containment alone.34 The independent inspectorate of prisons has generally judged that they operate successfully with good levels of safety and activity for those detained.35 The normalization of solitary confinement that is central to supermax has therefore been avoided. Instead, the use of solitary confinement in highly controlled and 29 Lord Mountbatten of Burma, Report of the Inquiry into Prison Escapes and Security (London: HMSO, 1966). 30 Advisory Council on the Penal System, The Regime for Long-​term Prisoners in Conditions of Maximum Security (London: HMSO, 1968). 31 John Learmont, Review of Prison Service Security in England and Wales and the Escape from Parkhurst Prison on Tuesday 3 January 1995 (London: HMSO, 1995). 32 King, “The Rise and Rise.” 33 E.g., Alison Liebling, Helen Arnold, and Christina Straub, An Exploration of Staff-​Prisoner Relationships at HMP Whitemoor: 12 Years On (London: Ministry of Justice, 2011); Deborah Drake, Prisons, Punishment and the Pursuit of Security (Basingstoke: Palgrave Macmillan, 2012). 34 Richard Sparks, Anthony Bottoms, and Will Hay, Prisons and the Problem of Order (Oxford: Clarendon Press, 1996); see also Alison Liebling, David Price, and Guy Shefer, The Prison Officer, 2nd ed. (Abingdon: Willan, 2011). 35 Peter Clarke and Jamie Bennett, “Inspecting Prisons:  Interview with Peter Clarke,” Prison Service Journal 234 (2017): 45–​50.

Jamie Bennett  285 restrictive units has been considered “extreme”36 and there have been determined efforts in practice to restrict the use of solitary confinement and ameliorate the conditions for those that require more restrictive detention.37 Small pockets of such “extreme custody” have arisen in very specific circumstances, including Close Supervision Centres, for those who are assessed as being too disruptive or violent to mix with staff and prisoners, and separation units for those who present a risk of promoting radicalization and violent extremism. However, these have been distinguished from the supermax approach in three particular ways:38 First, the United Kingdom “seems committed to keeping populations very low”; second, there is an “emphasis on the provision of humane treatment and services”; and third, there is “transparency of the system to reviewers from both within and outside of the prison establishment.” In comparison with the United States, where the use of supermax averages around 2% of prisoners being held in those conditions, with variation between states so that some have over 5% and at least one over 10%, the United Kingdom holds around 0.1% in such conditions.39 The conditions in these specialized units include, in the majority of cases, access to a wider range of facilities and services than would be normal in the United States. Lockdown regimes are unusual and indeed the independent inspectorate of prisons has judged that the units “were run on sound psychological principles with humanity and good care . . . Units were psychologically informed, and . . . [t]‌he focus on giving men hope and persevering even with those who were the most difficult to reach was impressive.”40 The more progressive approach taken is also reflected in the fact that three of the Close Supervision Centres have been accredited by the Royal College of Psychiatrists as “Enabling Environments”41 with all of the units working towards achieving this.42 This accreditation is underpinned by a defined set of standards and evaluation process. The standards are intended to be applicable in clinical and non-​ clinical settings and aim to capture “those factors in the social and community ‘dimension’ which are believed to be positive for health and well-​being.”43 These 36 HM Inspectorate of Prisons, Extreme Custody:  A Thematic Inspection of Close Supervision Centres and High Security Segregation (London: HM Inspectorate of Prisons, 2006); HM Inspectorate of Prisons, Report on an Announced Thematic Follow-​Up Inspection of the Close Supervision Centre System, 4–​8 December 2017 (London: HM Inspectorate of Prisons, 2018). 37 Richard Vince, “Segregation: Creating a New Norm,” Prison Service Journal 236 (2018): 17–​26. 38 Angela Crews, “The Growth of the Supermax Option in Britain,” in The Globalization of Supermax Prisons, ed. Jeffrey Ross (New Brunswick, NJ: Rutgers University Press, 2013), 49–​66, 65. 39 King, Rise and Rise. 40 HM Inspectorate of Prisons, Inspection of the Close Supervision Centre System, December 2017, 5. 41 “Enabling Environment Standards,” Royal College of Psychiatrists, accessed May 21, 2018, https://​www.rcpsych.ac.uk/​docs/​default-​source/​improving-​care/​ccqi/​quality-​networks/​enabling-​ environments-​ee/​ee-​standards-​document-​2015.pdf?sfvrsn=abdcca36_​2. 42 HM Inspectorate of Prisons, Inspection of the Close Supervision Centre System, December 2017. 43 Royal College of Psychiatrists, Enabling Environment Standards, 3.

286  Resisting Supermax standards cover ten areas including the nature of relationships between those who live and work in a particular setting, the ways in which people can get involved in the everyday decisions, the openness to engagement and dialogue, and the range of activities available that enable personal growth. Unlike what has been noted in the United States, the criteria for assessment, and de-​selection from these units, as well as the operating procedures, are published, and those detained within them are afforded state-​funded legal advice in order to contest their detention. There is also external, independent scrutiny of such regimes by Independent Monitoring Boards at each prison and nationally through HM Inspectorate of Prisons. The extent and nature of restrictive detention is not comparable to the supermax approach popularized in the United States, which has generally fallen upon stony ground in the United Kingdom. Arguments that have been presented against the proliferation of the supermax in the United States are that it is presented as “a silver bullet solution to many different problems that themselves have a variety of causes,”44 and that its domination of professional practice has excluded consideration of alternative approaches that may be more effective or at least less harmful.45 The lower use of restrictive custody in England and Wales has also offered the opportunity for more diverse and progressive alternative approaches to be adopted in the management of prisoners who may otherwise be in supermax prisons. It is to these alternatives that we now turn.

HMP Grendon: A progressive alternative to the supermax In response to the problems presented by men who are disruptive in prison and are considered a potential risk to the public, the UK government has, over the last two decades, developed an Offender Personality Pathway (OPD) Strategy.46 This has seen the development of assessment and treatment services in prisons and the community. This strategy has also incorporated a prominent and well-​ established service provided at HM prison Grendon. This opened in 1962, operating as a series of democratic therapeutic communities. It has been described as “an unusual and, in many ways, unique prison.”47 I was the governor of this prison between 2012 and 2019.48 It is comprised of a forty-​place assessment unit, 44 Mears, “Supermax Prisons,” 706. 45 Mears, “An Assessment of Supermax”; Mears, “Supermax Prisons.” 46 Department of Health, “Personality Disorder: No Longer a Diagnosis of Exclusion,” accessed May 21, 2018, http://​personalitydisorder.org.uk/​the-​offender-​personality-​disorder-​pathway/​. 47 HM Inspectorate of Prisons, Report of an Unannounced Inspection of HMP Grendon, 5–​16 August 2013 (London: HM Inspectorate of Prisons, 2014), 5. 48 For further elaboration on the role of governor, see Jamie Bennett “Governing a Therapeutic Community Prison in an Age of Managerialism,” Therapeutic Communities: The International Journal of Therapeutic Communities 39, no. 1 (2018), 14–​25.

Jamie Bennett  287 where men spend the first three to six months, and four communities that also have around forty places each, where men are allocated following assessment and remain for at least two years. There is additionally a twenty-​place unit offering a form of democratic therapeutic community for men with mild to moderate learning disabilities and difficulties. This unit offers a specialized treatment but is socially integrated as part of the whole prison in shared activities such as gymnasium, employment, education, and religious services. The prison largely holds men with indeterminate sentences who have committed serious violent or sexual offences. The residents of Grendon share some characteristics with those detained in supermax prisons. For example, high levels of psychological disorders,49 substance misuse, attempted suicide,50 and higher levels of institutional infractions51 have been reported in supermax populations. The residents of Grendon have a significantly higher level of formal disciplinary punishments for disciplinary infractions than other prisoners;52 almost half would meet the clinical criteria for psychopathy;53 almost half reported a previous suicide attempt; and half also reported regular substance misuse while in prison.54 In addition, two-​thirds of the men at Grendon report that they have been the victims of serious abuse themselves.55 This range of characteristics has led the population of HMP Grendon to be described as being amongst the most “damaged, disturbed and dangerous” in the prison system.56 Each community within the prison has a dedicated staff group including specially trained prison officers, a therapy manager who is a psychotherapist, a psychologist, and facilitators with a range of professional and clinical backgrounds. They receive ongoing training and clinical supervision to maintain their professional practice and aid the management of the emotional demands of the work. On a Monday and Friday morning, the whole community will meet to discuss issues of shared concern and to make collective

49 Sheilagh Hodgins and Gilles Côté, “The Mental Health of Penitentiary Inmates in Isolation,” Canadian Journal of Criminology 33 (1991): 175–​82; D. Lovell, “Patterns of Disturbed Behaviour in a Supermax Population,” Criminal Justice and Behaviour 35 (2008): 985–​1004. 50 Hodgins and Côté, “The Mental Health of Penitentiary Inmates.” 51 Lovell, Cloyes, Allen, and Rhodes, “Who Lives in Super-​Maximum Custody?.” 52 Eric Cullen, “Grendon: The Therapeutic Prison that Works,” Journal of Therapeutic Communities 15, no. 4 (1994): 301–​10. 53 Nicola Gray, Robert Snowden, Anthony Brown, and Malcolm MacCulloch, Prevalence of Psychopathy and Other Measures of Risk at HMP Grendon: An Investigation of Population Statistics (Cardiff: School of Psychology, Cardiff University, 2002). 54 Michelle Newberry, Changes in the Profile of Prisoners at HMP Grendon (unpublished internal report), (Aylesbury: HMP Grendon, 2009). 55 Id. 56 John Shine and Margaret Newton, “Damaged, Disturbed and Dangerous:  A Profile of Receptions to Grendon Therapeutic Prison 1995–​2000,” in A Compilation of Grendon Research, ed. John Shine (Leyhill: Leyhill Press, 2000), 23–​35, 23.

288  Resisting Supermax decisions including voting on who will take which jobs, whether residents should take up trusted posts and whether individuals are ready to progress through recategorization or ending therapy. The community can also vote about removing residents, challenging their commitment to the process and imposing sanctions for breaches of rules. This meeting is chaired by a prisoner who is elected into the role for a period of time. On Tuesday, Wednesday, and Thursday mornings, a series of small therapy groups are held within each community. These small groups are comprised of around eight residents who are allocated with the intention that they will work together therapeutically over a prolonged period. These groups are facilitated by at least one member of staff, but rely upon the active involvement of the group members. It is in these groups that issues are explored in depth, including examining the past and how this shapes individuals’ thinking and behavior. While these groups are not formally structured in as much as there is not standardized course material, they are guided by clinical judgment and are focused upon identified risk factors for each individual. Once residents have been engaged in therapy for around a year, they can also access art therapy or psychodrama, which further develop and expand the intervention. During afternoon periods, residents have paid jobs or undertake education. There is also an integrated structure of community participation and responsibility. Each individual has a voluntary job that they do on behalf of the community. This can range from being the chairperson of the community to being the person who waters the plants or looks after the fish tank. Each community supports a charity, often linked to offending, for which they raise funds and promote. Twice a year, each community will host a “family day,” where loved ones will visit the community for a meal, to receive information about the work of the prison, and see where the men live and meet those they live with. This is in addition to, and more extensive than, routine family visits, which take place three times a week. Also twice a year, each community will host a “social day” to which they invite people with a professional interest. This helps to humanize the contact men have with criminal justice professionals, but also develops the network of supporters for the establishment as a whole. The men are also enabled to make constructive use of their recreation time not only through physical exercise or religious activities, but also through activities such as yoga, reading groups, art programs, music, debating clubs, and other opportunities. All of the various elements work together in order to provide a “living-​ learning” environment in which men are invested with trust and responsibility, are encouraged to explore their own background and history, and develop new skills. The nature of therapeutic communities is that it “is based on the totality of what happens within the prison . . . [T]‌herapy . . . does not occur in isolation from what is happening in the rest of the prison[;] rather

Jamie Bennett  289 every aspect of prison life is an integral component of the therapeutic community environment.”57 Rather than the isolation and solitary confinement envisaged by supermax, the therapeutic community model offers integrated, communal confinement. In many ways, the notion of a democratic therapeutic community located within a prison is atypical, and may even seem counter-​cultural, going against the grain of mainstream imprisonment, let  alone extreme versions such as supermax. The conventional view of the prison is as an institution that is homogenizing, identity-​suppressing, and coercive, while therapeutic communities offer an alternative that encourages agency, self-​development, expression, and identity. This approach achieves extraordinary outcomes, including reduced levels of violence and self-​harm, improved psychological well-​being, and improved quality of life for prisoners and staff.58 Residents show improved psychological health and well-​being.59 Shuker and Newton60 found that almost half of those completing treatment showed significant increases in self-​esteem and reductions in anxiety, and Birtchnell et al. reported significantly improved and more “competent” levels of interpersonal relating post-​treatment. 61 In a more recent study Shuker and Newbury62 found that 70% of men arriving at Grendon reported clinical levels of traumatization, but following treatment they reported significant reductions in symptoms of post-​traumatic stress. There is also research evidence that demonstrates that those who reside at Grendon for eighteen months or more have reduced levels of reoffending.63 The independent inspectorate of

57 Michael Brookes, “Putting Principles into Practice:  The Therapeutic Community Regime at HMP Grendon and Its Relationship with the ‘Good Lives’ Model,” in Grendon and the Emergence of Forensic Therapeutic Communities: Developments in Research and Practice, ed. Richard Shuker and Elizabeth Sullivan, 99–​113 (Chichester: Wiley-​Blackwell, 2010), 102–​03. 58 Michelle Newberry, “A Synthesis of Outcome Research at Grendon Therapeutic Community Prison,” Therapeutic Communities 31, no. 4 (2010): 357–​73. 59 John Gunn and Graham Robertson, “An Evaluation of Grendon Prison,” in Abnormal Offenders, Delinquency and the Criminal Justice System, ed. John Gunn and David Farrington, 285–​305 (Chichester: Wiley, 1982), ; Margaret Newton, “Changes in Measures of Personality, Hostility and Locus of Control during Residence in a Prison Therapeutic Community,” Legal and Criminological Psychology 3 (1998): 209–​23. 60 Richard Shuker and Margaret Newton, “Treatment Outcome Following Intervention in a Prison-​Based Therapeutic Community:  A Study of the Relationship between Reduction in Criminogenic Risk and Improved Psychological Well-​Being,” The British Journal of Forensic Practice 10, no. 3 (2008): 33–​44. 61 John Birtchnell, Richard Shuker, Michelle Newberry, and Conor Duggan, “The Assessment of Change in Negative Relating in Two Male Forensic Therapy Samples Using the Person’s Relating to Others Questionnaire,” Journal of Forensic Psychiatry and Psychology 20 (1998): 387–​407. 62 Richard Shuker and Michelle Newberry, “Reductions in Symptoms of Post-​Traumatic Stress Following Treatment in a Therapeutic Community Prison” (presentation at Division of Forensic Psychology Annual Conference, Manchester Metropolitan University, 2015). 63 Ricky Taylor, Research Findings No. 115:  A Seven Year Reconviction Study of HMP Grendon Therapeutic Community (London:  Home Office Research, Development and Statistics Directorate, 2000).

290  Resisting Supermax prisons has also consistently drawn attention to the innovative and effective serv­ice offered and called for its preservation as well as its wider emulation.64

Beyond resistance: Rediscovering and re-​imagining penal alternatives This chapter has attempted to highlight alternative approaches to the globalized phenomenon of the supermax. The argument presented is that supermax is in itself harmful, and is used excessively. The effects of this include the opportunity cost of excluding alternative practices. The practices presented here demonstrate that more diverse and effective approaches exist. These are rooted in a particular place and local culture. England and Wales have explored and rejected the supermax in favor of an alternative model that offers a normalized regime of long-​term imprisonment for high-​risk and disruptive prisoners and minimizes the use of solitary confinement. This has created a penal landscape that has also enabled the development of progressive and therapeutic approaches to managing and attempting to rehabilitate even the most difficult and dangerous prisoners. The significance of this particular example is not only in how it provides a technical alternative in penal policy and practice, but also how it presents an alternative set of values to those that underpin the supermax. These are values that are embedded in and reflect upon globalization itself. In particular, it offers resistance to a set of values around risk, securitization, and economic rationality. In relation to risk and security, the supermax purports to offer total control through physical, spatial, and social containment and isolation. This is constructed so as to offer a sense that uncontrollable people are safely contained and the risk they present is eliminated. However, this is illusory. Supermax prisons have failed to reduce prison violence, increase staff safety, or offer reassure the public regarding their safety.65 Indeed, the effects of prolonged solitary confinement are psychologically harmful and may produce a range of perverse outcomes in relation to the behavior of prisoners,66 and make reoffending more likely.67 More broadly, it has been suggested that there are social effects arising from the adoption of a particular penal approach, which reflects and shapes public morality and values.68 From this perspective, supermax is an approach

64 HM Inspectorate of Prisons, Report of an Unannounced Inspection of HMP Grendon, 8–​18 May 2017 (London: HM Inspectorate of Prisons, 2017). 65 Shalev, Supermax. 66 Haney, “A Culture of Harm”; Haney, “The Social Psychology of Isolation”; King, Steiner, and Ritchie Breach, “Violence in the Supermax.” 67 Kupers, “What to Do with the Survivors?.” 68 King, “The Effects of Supermax Custody.”

Jamie Bennett  291 which reduces the potential for more humane penal strategies and contributes to a more punitive and securitized public policy. In contrast, the approach of therapeutic communities such as Grendon rejects the idea that total control is either possible or desirable; instead, the prison “cannot do its work without an element of unruliness and ambiguity” and the process is one that involves “the social world unfolding, messily, on the communities.”69 Nevertheless it is an approach that achieves a reduced level of harm inside and outside of prison.70 Rather than offering an “imaginary penalty,”71 the therapeutic community approach makes more modest claims and acknowledges the complexity and the limitations of practice as well as its potential. Therapeutic communities also offer a version of security that does not rely upon a narrow concept of coercion, technology, and physical containment. Instead, security is re-​conceptualized as a “ ‘thick’ public good”72 in which relationships between people in a community are built upon a sense of solidarity, mutual respect, and providing opportunities for individuals to flourish. By reinvigorating these social dimensions, Grendon offers a progressive redefinition of prison security placing emphasis upon legitimacy,73 where those subjected to detention view this as reasonable and morally justified, and in which they have a stake. The approach of therapeutic communities is deeply rooted in the welfare tradition, where humane treatment, dignity, and rehabilitation are placed at the forefront.74 This approach, which emphasizes the importance of individuals as living, feeling agents, is in contrast to the underpinning neo-​liberal values of the supermax, which emphasize economic rationality and the containment of marginalized groups. The rediscovery of localized, alternative approaches to the management of high-​risk prisoners is intended not only as a direct challenge to the primacy of the supermax model, but is also intended to raise wider questions about the process of globalization itself. The nature of globalization, as was suggested earlier, has often been characterized as the dissemination and replication of a dominant set of neo-​liberal ideas and practices. Through the example of practices in England and Wales, it is being suggested not only that can power

69 Lorna Rhodes, “Risking Therapy,” The Howard Journal of Criminal Justice 49, no. 5 (2011): 451–​62,  460. 70 Newberry, “A Synthesis of Outcome Research.” 71 Pat Carlen, “Imaginary Penalities and Risk-​Crazed Governance,” in Imaginary Penalities, ed. Pat Carlen (Cullompton: Willan 2008), 1–​25. 72 Ian Loader and Neil Walker, Civilizing Security (Cambridge:  Cambridge University Press 2007), 8. 73 Sparks, Bottoms, and Hay, Prisons and the Problem of Order. 74 Elaine Genders and Elaine Player, Grendon: A Study of a Therapeutic Prison (Oxford: Clarendon Press, 1995).

292  Resisting Supermax and domination be resisted but also that an alternative dialogue and network of connections could be established in which a more heterogeneous set of ideas and practices can be articulated, disseminated, shared, and even in time replicated. This chapter has attempted to illuminate an example of local practices that present a challenge and alternative to not only specific globalized practice but also the underpinning values. The challenge for criminologists and reforming practitioners is not necessarily to reinvent the prison but also to rediscover compelling examples of humane and effective forms of detention that offer a credible alternative to the neo-​liberal hegemony.

Bibliography Aas, Katja. Globalization and Crime. 2nd ed. London: Sage, 2013. Advisory Council on the Penal System. The Regime for Long-​term Prisoners in Conditions of Maximum Security. London: HMSO, 1968. Beck, Ulrich. Risk Society: Towards a New Modernity. London: Sage, 1992. Bell, Emma. Criminal Justice and Neoliberalism. Basingstoke: Palgrave Macmillan, 2011. Bell, Emma. “The Prison Paradox in Neoliberal Britain.” In Why prison?, edited by David Scott, 44–​64. Cambridge: Cambridge University Press, 2013. Bennett, Jamie. “Governing a Therapeutic Community Prison in an Age of Managerialism.” Therapeutic Communities:  The International Journal of Therapeutic Communities 39, no. 1 (2018): 14–​25. Birtchnell, John, Richard Shuker, Michelle Newberry, and Conor Duggan. “The Assessment of Change in Negative Relating in Two Male Forensic Therapy Samples Using the Person’s Relating to Others Questionnaire.” Journal of Forensic Psychiatry and Psychology 20 (1998): 387–​407. Brookes, Michael. “Putting Principles into Practice:  The Therapeutic Community Regime at HMP Grendon and its Relationship with the ‘Good Lives’ Model.” In Grendon and the Emergence of Forensic Therapeutic Communities:  Developments in Research and Practice, edited by Richard Shuker and Elizabeth Sullivan, 99–​113. Chichester: Wiley-​Blackwell,  2010. Carlen, Pat. “Imaginary Penalities and Risk-​Crazed Governance.” In Imaginary Penalities, edited by Pat Carlen, 1–​25. Cullompton: Willan, 2008. Cavadino, Michael, and James Dignan. “Penal Policy and Political Economy.” Criminology and Criminal Justice 6, no. 4 (2006): 435–​56. Clarke, Peter, and Jamie Bennett. “Inspecting Prisons: Interview with Peter Clarke.” Prison Service Journal 234 (2017): 45–​50. Crews, Angela. “The Growth of the Supermax Option in Britain.” In The Globalization of Supermax Prisons, edited by Jeffrey Ross, 49–​66. New Brunswick, NJ:  Rutgers University Press, 2013. Cullen, Eric. “Grendon:  The Therapeutic Prison That Works.” Journal of Therapeutic Communities 15, no. 4 (1994): 301–​10.

Jamie Bennett  293 Cullen, Francis, Cheryl Jonson, and Mary Stohr. The American Prison:  Imagining a Different Prison. Thousand Oaks, CA: Sage, 2013. Department of Health. “Personality Disorder:  No Longer a Diagnosis of Exclusion.” Accessed May 21, 2018. http://​personalitydisorder.org.uk/​the-​offender-​personality-​ disorder-​pathway/​. Drake, Deborah. Prisons, Punishment and the Pursuit of Security. Basingstoke: Palgrave Macmillan, 2012. Genders, Elaine, and Elaine Player. Grendon:  A Study of a Therapeutic Prison. Oxford: Clarendon Press, 1995. Gray, Nicola, Robert Snowden, Anthony Brown, and Malcolm MacCulloch. Prevalence of Psychopathy and Other Measures of Risk at HMP Grendon:  An Investigation of Population Statistics. Cardiff: School of Psychology, Cardiff University, 2002. Gunn, John, and Graham Robertson. “An Evaluation of Grendon Prison.” In Abnormal Offenders, Delinquency and the Criminal Justice System, edited by John Gunn and David Farrington, 285–​305. Chichester: Wiley, 1982. Haney, Craig. “A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons.” Criminal Justice and Behaviour 35 (2008): 956–​84. Haney, Craig. “The Social Psychology of Isolation:  Why Solitary Confinement is Psychologically Harmful.” Prison Service Journal 181 (2008): 12–​20. HM Inspectorate of Prisons. Extreme Custody: A Thematic Inspection of Close Supervision Centres and High Security Segregation. London: HM Inspectorate of Prisons, 2006. HM Inspectorate of Prisons. Report on an Announced Thematic Follow-​Up Inspection of the Close Supervision Centre System, 4–​8 December 2017. London: HM Inspectorate of Prisons, 2018. HM Inspectorate of Prisons. Report of an Unannounced Inspection of HMP Grendon, 5–​16 August 2013. London: HM Inspectorate of Prisons, 2014. HM Inspectorate of Prisons. Report of an Unannounced Inspection of HMP Grendon, 8–​18 May 2017. London: HM Inspectorate of Prisons, 2017. Hodgins, Sheilagh, and Gilles Côté. “The Mental Health of Penitentiary Inmates in Isolation.” Canadian Journal of Criminology 33 (1991): 175–​82. Kennedy, Paul. Local Lives and Global Transformations:  Towards World Society. Basingstoke: Palgrave Macmillan, 2010. King, Kate, Benjamin Steiner, and Stephanie Ritchie Breach. “Violence in the Supermax: A Self-​Fulfilling Prophecy.” The Prison Journal 88, no. 1 (2008): 144–​68. King, Roy. “The Effects of Supermax Custody.” In The Effects of Imprisonment, edited by Alison Liebling, A. and Shadd Maruna, 118–​45. Cullompton: Willan, 2005. King, Roy. “The Rise and Rise of Supermax.” Punishment and Society 1, no. 2 (1999): 163–​86. Kupers, Terry. “What to Do with the Survivors? Coping with the Long-​Term Effects of Isolated Confinement.” Criminal Justice and Behaviour 35 (2008): 1005–​16. Kurki, Leena, and Norval Morris. “The Purposes, Practices and Problems of Supermax Prisons.” In Crime and Justice: A Review of Research 28, edited by Michael Tonry, 385–​ 424. Chicago: University of Chicago Press, 2001. Learmont, John. Review of Prison Service Security in England and Wales and the Escape from Parkhurst Prison on Tuesday 3 January 1995. London: HMSO, 1995. Liebling, Alison, Helen Arnold, and Christina Straub. An Exploration of Staff-​Prisoner Relationships at HMP Whitemoor: 12 Years On. London: Ministry of Justice, 2011.

294  Resisting Supermax Liebling, Alison, David Price, and Guy Shefer. The Prison Officer. 2nd ed. Abingdon: Willan, 2011. Loader, Ian, and Neil Walker. Civilizing Security. Cambridge:  Cambridge University Press, 2007. Lovell, David. “Patterns of Disturbed Behaviour in a Supermax Population.” Criminal Justice and Behaviour 35 (2008): 985–​1004. Lovell, David, Kristin Cloyes, David Allen, and Lorna Rhodes. “Who Lives in Super-​ Maximum Custody? A Washington State Study.” Federal Probation 64 (2000): 33–​38. Mears, Daniel. “An Assessment of Supermax Prisons Using an Evaluation Research Framework.” The Prison Journal 88, no. 1 (2008): 43–​68. Mears, Daniel. “Supermax Prisons: The Policy and the Evidence.” Criminology and Public Policy 12, no. 4 (2013): 681–​719. Mountbatten, Lord of Burma. Report of the Inquiry into Prison Escapes and Security. London: HMSO, 1966. Newberry, Michelle. Changes in the Profile of Prisoners at HMP Grendon. Unpublished internal report. Aylesbury: HMP Grendon, 2009. Newberry, Michelle. “A Synthesis of Outcome Research at Grendon Therapeutic Community Prison.” Therapeutic Communities 31, no. 4 (2010): 357–​73. Newton, Margaret. “Changes in Measures of Personality, Hostility and Locus of Control during Residence in a Prison Therapeutic Community.” Legal and Criminological Psychology 3 (1998): 209–​23. Pizarro, Jesenia, and Raymund Narag. “Supermax Prisons: What We Know, What We Do Not Know and Where We Are Going.” The Prison Journal 88, no. 1 (2008): 23–​42. Rhodes, Lorna. “Risking Therapy.” In The Howard Journal of Criminal Justice 49, no. 5 (2011): 451–​62. Ross, Jeffrey. “The Globalization of Supermax Prisons:  An Introduction.” In The Globalization of Supermax Prisons, edited by Jeffrey Ross, 1–​9. New Brunswick, NJ: Rutgers University Press, 2013. Ross, Jeffrey, ed. The Globalization of Supermax Prisons. New Brunswick, NJ:  Rutgers University Press, 2013. Royal College of Psychiatrists. “Enabling Environment Standards.” Accessed May 21, 2018. https://​w ww.rcpsych.ac.uk/​docs/​default-​source/​improving-​care/​ccqi/​ quality- ​ n etworks/ ​ e nabling- ​ e nvironments- ​ e e/ ​ e e- ​ s tandards- ​ d ocument- ​ 2 015. pdf?sfvrsn=abdcca36_​2. Shalev, Sharon. Supermax: Controlling Risk through Solitary Confinement. Cullompton: Willan, 2009. Shine, John, and Margaret Newton. “Damaged, Disturbed and Dangerous: A Profile of Receptions to Grendon Therapeutic Prison 1995–​2000.” In A Compilation of Grendon Research, edited by John Shine, 23–​35. Leyhill: Leyhill Press, 2000. Shuker, Richard, and Michelle Newberry. “Reductions in Symptoms of Post-​Traumatic Stress Following Treatment in a Therapeutic Community Prison.” Presentation at Division of Forensic Psychology Annual Conference, Manchester Metropolitan University, 2015. Shuker, Richard, and Margaret Newton. “Treatment Outcome Following Intervention in a Prison-​Based Therapeutic Community:  A Study of the Relationship between Reduction in Criminogenic Risk and Improved Psychological Well-​Being.” The British Journal of Forensic Practice 10, no. 3 (2008): 33–​44. Sparks, Richard, Anthony Bottoms, and Will Hay. Prisons and the Problem of Order. Oxford: Clarendon Press, 1996.

Jamie Bennett  295 Taylor, Ricky. Research Findings No.115: A Seven Year Reconviction Study of HMP Grendon Therapeutic Community. London: Home Office Research, Development and Statistics Directorate, 2000. Tonry, Michael. Punishment and Politics: Evidence and Emulation in the Making of English Crime Control Policy. Cullompton: Willan, 2004. Vince, Richard. “Segregation:  Creating a New Norm.” Prison Service Journal 236 (2018): 17–​26.

17

Prisoners’ Association as an Alternative to Solitary Confinement—​Lessons Learned from a Norwegian High-​Security Prison Are Høidal*

The main rule in Section 17 of the Norwegian Penal Code is that all inmates in Norwegian prisons should, as far as practically possible, be allowed company during work, training, programming, and in their leisure periods. This basically means access to community and social contact with other prisoners all day, from morning to evening. This chapter will look more closely at this main rule as well as the exceptions found in Section 17, paragraph 2 of the Norwegian Penal code: “The Norwegian Correctional Service may decide on complete or partial exclusion from company pursuant to the provisions of Section 29, paragraph two and Sections 37, 38, 39 and 40, paragraph two (d).” In order to better explain how the principle of access to community with other prisoners works in practice, I  will describe some of the basic principles according to which the Norwegian Correctional Service (NCS) operates. Following that, I will provide some general information about Halden prison and describe how we try to interpret and implement these principles in Halden prison in Norway. Furthermore, I will look at the rules concerning exclusion from the prisoner community when inmates break the rules. Finally, I will discuss why a strong focus on the inmates’ right to community, which is the philosophy we aim to uphold in Halden prison, helps us to minimize the use of solitary confinement.

* Governor, Halden Prison. Are Høidal has worked in the Norwegian Correctional Service (NCS) for thirty years, holding various senior positions over the years, including eleven years as governor (warden) of the Oslo prison and now governor of Halden prison since 2009. Hoidal graduated in law in 1987 and afterward immediately began work in NCS. Are Høidal. Prisoners’ Association as an Alternative to Solitary Confinement—Lessons Learned from a Norwegian High-Security Prison In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0017

298  Prisoners’ Association as an Alternative

The Correctional Service in Norway The NCS is a governmental agency financed by the Norwegian Ministry of Justice and Public Security. NCS is currently organized into three hierarchical levels for administrative purposes: The Norwegian Directorate for Correctional Services (level 1), five regional administrations (region North, region South, region South-​West, region West and region East) (level 2), and within each of these regions, local prisons, parole/​probation offices, halfway-​houses, and drug court units. The NCS is responsible for carrying out remands to custody at various levels of restriction and penal sanctions in a way that takes into consideration the security of all citizens and attempts to prevent recidivism by enabling the offenders, through their own initiative, to change their criminal behavior. In total, Norway has a prison capacity of nearly 3,900 cells distributed between 43 prisons in 61 locations. This means that Norwegian prisons are relatively small; the average prison has about 70 cells; the smallest facility houses only 13 individuals; and the largest has 400. As there is a one-​man-​one-​cell policy in all Norwegian prisons, the number of available cells is also the maximum capacity for the prison. The decision to have a relatively large number of comparatively small prisons is driven by the intention to allow offenders to serve their sentences close to their home, a goal that is challenging in light of the unique geographical layout and low population density of the country. There is also a degree of variation between the characteristics of these prisons. Two-​thirds of all prisons are high-​security facilities, which share many common features with prisons worldwide (high walls, locked doors, security cameras, etc.). The remaining one-​ third of NCS facilities are open prisons, which do not have restrictive walls and inmates are able to leave the premises. Despite this open prisons and fairly liberal leave policies for low-​risk individuals and inmates in the latter parts of these sentences, there are almost no escapes from NCS facilities; almost every single prisoners on temporary leave returns to their “home” prison when instructed. Norway has no special prisons or units for those individuals in pre-​trial detention. These are people who have not been convicted of a crime, but who are remanded to the custody of the NCS. Since pre-​trial detainees must, as a general rule (if not subjected to court-​ordered solitary confinement), receive the same offers of treatment and services as inmates who are serving a sentence, pre-​ sentence defendants are incarcerated with the general prison population. This is provided for in Section 49 of the Execution of Sentences Act about work, education, programs, and other measures: “Inmates have as far as practically possible access to work, training, programs or other measures.” The NCS cannot order pre-​trial detainees to participate in such activities. It may, however, order them to contribute to necessary cleaning and other housework in the prison.

Are Høidal  299

Central principles in Norwegian corrections Principle of normalization A key principle for Norwegian correctional care is the principle of normalization. The principle of normalization is defined in the government white paper “Punishment That Works—​Less Crime—​A Safer Society” from 2008: It is stated in international conventions and recommendations as well as in Norwegian law that a sentenced prisoner has the same rights as other citizens. Life as a prisoner during the execution of the sentence shall be similar to life in society to the degree that this is feasible. It is the deprivation of liberty, which constitute the punishment.1

This means that: –​ The punishment is the deprivation of liberty; no other rights have been removed by the sentencing court. Therefore, the sentenced prisoner has all the same rights as all other people living in Norway. –​​ No one shall serve their sentence under harsher or stricter circumstances than necessary for the security in the community. Therefore, offenders shall be placed in the lowest possible security regime. –​​ Life inside the prison shall resemble life on the outside as much as possible. Taken together this approach can be termed “the principle of normalization,” which is also found in European human rights law.2

Progression towards reintegration In accordance with the principle of normalization, progression through a sentence should be aimed towards a return to the community. The more closed a prison system is, the harder it will be to return to freedom. Therefore one will proceed towards release gradually from high security prisons to lower security prisons and possible through halfway houses. Release on parole is stimulated

1 St. meld. No. 37, 2007–​2008, 22. 2 The principle of normalization is defined in the European Prison rules. For a discussion of the development of this principle, see Peter Scharff Smith, “Prisons and Human Rights—​Past, Present and Future Challenges” in The Routledge International Handbook of Criminology and Human Rights, ed. Leanne Weber, Elaine Fishwick and Marinella Marmo (Abingdon: Routledge, 2016), 525–​35.

300  Prisoners’ Association as an Alternative and NCS will use its discretionary powers to arrange for a process where serving the sentence is adjusted to individual risks, needs, and resources. It is possible to be released on parole after having served two-​thirds of the sentence and a minimum of seventy-​four days. One will need to report to the probation office at regular times, refrain from the use of alcohol, and comply with any other specific conditions that have been imposed.

The “import model” Local and municipal service providers deliver crucial services to the prison. Prisons do not have their own staff delivering medical, educational, employment, clerical, or library services. These are imported from the community. The advantages are: –​​ A  better continuity in the deliverance of services—​the offender will already have established contact with relevant public authorities and services during his time in prison; –​​ Involvement from the community with the prison system—​more and better cross-​connections and an improvement of the image of prison and prisoners; –​​ A strong commitment to the principle of normalization in that the services in question cater for all inhabitants in Norway.

Reintegration work NCS focuses on reintegration work for those who have served their sentence. If relevant, NCS assists in locating or supplying employment, education, suitable housing accommodation, some type of income, medical services, addiction treatment services, and debt counseling. Reintegration coordinators employed by NCS will help coordinating these efforts in an individualized manner in order to help prisoners. This represents the intentions of the Norwegian state and its underlying public institutions to cooperate in order to achieve reintegration of offenders.

Halden prison The parliament decided in 1999 that a new prison should be planned in eastern Norway. The final decision on the choice of land was made in March 2003, and

Are Høidal  301 Halden was preferred in competition with several other towns in the county. The construction work took place in 2006, the foundation stone was laid in spring 2008, and the prison of Halden opened on March 1, 2010. The prison has a capacity of 252 male inmates and has inmates who are both on remand and serving a sentence. There are 228 cells behind the walls, divided into 3 units and 24 spaces in a halfway house directly on the outside of the wall. “Statsbygg,” which owns Norwegian prisons, wrote a final report when the construction project was completed. In the final report concerning Halden prison, unit A is defined as a unit for remand imprisonment.3 The idea was to use unit A with its sixty cells as a unit for pre-​trial detention, and unit B and C, with eighty-​four inmates in each of them, as units for sentenced prisoners. However, the need for remand space has proved to be greater, so today there is a mix of pre-​ trial detainees and sentenced inmates in all three units. The buildings in Halden prison covers 27,000 square meters, and within the wall it is 150 decares. The area between the wall and the forest, the so-​called free-​ zone, is also 150 decares. The wall around the building in the prison is about 1.4 km long and 6 meters high. Halden prison is defined as a prison with a high security level. The different security levels in Norway are described in section 10 of the Act: “Sentences of imprisonment, preventive detention and special criminal sanctions may be executed:

a) in prisons with a high security level (closed prisons), b) in prisons with a lower security level (open prisons), c) in halfway houses, d) outside prison subject to special conditions pursuant to Section 16, or e) on probation subject to conditions pursuant to Section 43, paragraph two.

A wing or unit in a prison that has a high level of security may be suitably organized for inmates who have special needs, including persons on whom are imposed special criminal sanctions or preventive detention, or converted to an especially high security level.”4 Halden prison houses prisoners who have committed all kinds of crime—​ murder, rape, drug smuggling, theft, robbery, etc. Those sentenced to preventive detention will normally not be placed in a prison like Halden prison, but in a special institution called Ila prison in Oslo city.



3 4

Statsbygg completion report No. 686/​2010. Lov om gjennomføring av straff mv.(straffegjennomføringsloven), § 10.

302  Prisoners’ Association as an Alternative Halden Prison has received much attention because of its architecture. The facility is designed to meet “the inmates and employees in a friendly, and non-​ authoritarian way. Therefore, emphasis is placed on good relationships, good dimensions, quality in material use, and strength in the forms.”5

The vision of Halden Prison: Punishment that works—​change that lasts The deprivation of liberty can be burdensome for many people. That is a part of the institution of punishment. Nevertheless, punishment shall work and achieve its purpose and this purpose has been described in detail in the parliamentary report on correctional care that came in 2008:  “Punishment that works—​less crime—​a safer society.”6 Section 3.1 mentions the purpose of the penalty as being threefold—​i.e., to avoid crime “through the deprivation of liberty (incapacitation), through deterrence, and through rehabilitation.7 Regarding rehabilitation, the report says that lawmakers have focused on this particular purpose in recent years.8 While the inmate is serving his or her sentence, we think in Halden Prison that it’s a great opportunity to start the process of changing lifestyle and behavior. Therefore, in our vision, we operate with the sentence “change that lasts.” In our content, we have a lot of focus on change work, which could help the inmate stop being a criminal and manage to live a lawful life when the stay in prison is over. In that sense, we can say that in our work we try to balance care and punishment.

The architects’ work Halden prison is supposed to be a miniature society. The architects have aimed to achieve this by dividing the buildings in such a way that you have to commute to get to work, etc. This reflects everyday movement between home, school, workplace, etc. They have also tried to create an interior that is as least alienating as possible. It is emphasized that the structure is divided into “public” and “private” functions with its various expressions. The project aims to balance two mutually dependent opposites, “hard and soft,” which represent the hard prison and the soft notion of rehabilitation. The administrative functions and the strictest



5

Statsbygg completion report No. 686/​2010. St. meld. No. 37, 2007–​2008. 7 Id., 19. 8 Id., 20. 6

Are Høidal  303 prison units are placed in connection with the main gate and the sports field on the lower level of the plot, and these represent the “hard” part. The “soft” part is on the upper level and there are departments that are grouped around recreational and natural areas on the site. The state building authorities’ final report concerning Halden Prison furthermore underlines that security is based on a combination of static and dynamic security. The static security is made up of all physical barriers, while the dynamic security lies in the presence of the staff. The architecture attempts to support dynamic security by locating staff and prisoners close to each other.9

Principle of normalization in Halden prison The facilities and structure of Halden prison reflect the principles and ambitions of NCS, as expressed in a government white paper on punishment. This includes the already mentioned principle of normalization. What a “normal” life is behind prison walls can of course be discussed. Prison life can never be similar to life in freedom outside the walls. In Halden Prison, we try to make everyday life more or less like an ordinary life: The inmates live in small living units, rooms with good physical standards, and they go to work or school during the day, eat meals at normal times, and have recreational activities in the afternoon. They seek a doctor, dentist, service center, library, shop, and holy room, similar to what one would do outside the walls. We try to fill the whole day with meaningful activities. It is good for both inmates and employees. We make daily life inside the walls as similar to life outside as we can without compromising security. The inmates move around the area. The distances between the buildings are short, but they’re enough to enable us to copy the rhythms of normal life. These are small but important elements for ensuring that inmates manage on their own. This also ensures that the harmful effects of time in prison are reduced, and it facilitates good progression in the rehabilitation process. With the vision “Punishment that works—​change that lasts,” Halden prison focuses on change work, within a safe and secure framework. The prison is a state-​of-​the-​art institution, with good facilities for both employees and inmates.



9

Statsbygg completion report No. 686/​2010.

304  Prisoners’ Association as an Alternative

Activation of inmates prevents mental disorders, violence, and suicide Solitary confinement is the exception. Company with other inmates is the main rule. All solitary confinement must be justified, and there must be a written decision explaining why the main rule regarding access to the prison community is not followed. Access to company with other prisoners can be achieved through work, education, different programs, or other measures, and in leisure time. Access to activities and work can give the inmates a sense of achievement and everyday structure, and it can counteract isolation and passivation in prison. Activation is in Norway justified by the principle of normalization and is important for the rehabilitation work. Providing in-​work training and meaningful activity can also help counteract incidents in prison that lead to exclusion. The inmates who isolate themselves in their cells and do not want to be in work or other activity may often have mental disorders. It’s important that the inmates are out of the cells and are active from morning to evening.10 They have meaningful activities throughout the day, from morning to the afternoon, i.e., through work, education, programs, other measures, and leisure activities. Inmates with mental disorders must receive extra assistance through extraordinary measures. In 2014, the Norwegian Ombudsman established a “Prevention Unit Against Torture and Inhuman Treatment” which monitors all institutions where people are deprived of their liberty. In prison, during visits, there is of course a lot of focus on practice regarding the use of restrictive measures and ensuring the decisions are in accordance with the current provisions of The Execution of Sentences Act. The interventions are required to be in accordance with the requirements of legality, necessity, and proportionality. After having been in business for three years, the “Prevention Unit” has made some general considerations that are summarized in annual reports. In the annual report for 2015, an article titled “Activity Offerings and Measures to Counter Isolation” appeared. This applies equally to inmates in custody, where Section 49 states: “Inmates have as far as practically possible access to participate in work, training, programs or other measures.” The European Committee for the Prevention of Torture (CPT) recommends that prisoners shall be allowed to be out of the cell for at least eight hours each day, engaged in meaningful activities.11 The eight-​ hour recommendation

10 11

Lov om gjennomføring av straff mv. (straffegjennomføringsloven) § 17. CPT standards, Section II, Section 47.

Are Høidal  305 is specifically aimed at inmates who are in custody. For convicts, they recommend even more time. Many prisons in Norway have difficulty complying with this recommendation—​a recommendation that the Ombudsman’s “Prevention Unit” refers to when it visits Norwegian prisons. This is arguably the most important part of such preventive work: Activation prevents suicide, isolation damage, and threats and violence, and activation helps reduce the use of safety cells, segregation, and other restrictive measures. Work operations in Halden prison include the work the prisoners are offered for daily employment in fifteen different workshops. In addition, it includes all work necessary for the operation and maintenance of the prison, such as cleaning, cooking, laundry, and maintenance of buildings. The work operations are focused on the competence development, employment, and rehabilitation of inmates during the serving of sentences. Inmates from the living units are offered full-​time employment five times a week from 08:00 to 15:00. Some inmates choose to combine work and school. The school department at Halden Prison has twenty-​five employees from the local high school. About 120 of the inmates receive offers in the form of ordinary schooling, courses, counseling, or facilitation of university studies. In essence, the school’s education programs have been developed with a view to rehabilitation and opportunity for work or further schooling by transfer to open prisons or after release on parole. The purpose of program activities is to give the inmates new knowledge and motivation for change, as well as to stimulate their resources and skills to live a life without crime. Halden Prison has two regular program officers (prison officers) who plan the program activities and, in cooperation with other prison officers, carry out the planned programs. The prison aims to carry out sixteen programs per year. The programs offered are:  Stress Management, Anger Management, Parental Guidance, Dad in Prison, and NSAP (drug program). The program department plans to offer other programs to give inmates a wide choice. Halden Prison furthermore has its own building for culture and leisure activities. The prison has three leisure managers who work with various subject areas. They cooperate to arrange joint activities with many inmates as well as individual activities to counteract isolation damage caused by the prison stay. All inmates are offered recreational activities. The cultural building consists of a gymnasium with climbing wall and various equipment necessary for the various ball games and acrobatics. The gym also has a stage that is used when arranging concerts, and the gym is equipped with various exercise machines for weight-​training. A large yard is used for ball games, jogging, or aeration.

306  Prisoners’ Association as an Alternative

When inmates break the rules In the current regulations, there is the opportunity to exclude prisoners from access to company through the use of coercive measures (Section 38) or a decision on loss of leisure community (Section 40, second paragraph, letter d). Furthermore, the community may be restricted or excluded in acute situations where it is considered necessary to prevent or reduce the risk of harmful actions on person or property and on safety considerations (Sections 37 and 39). Use of special toilets (Section 29, second paragraph) is also one of the exceptions, as of course are decisions from the court regarding restrictions during the custody period. It is a fact that not all prisoners behave according to normal standards of discipline. But what is a normal standard of behavior? What can be tolerated? Disciplinary problems are complex, and where should the line be drawn? Mental disorders often lead to abnormal behavior and this is probably amplified in a prison situation. In the law there is a possibility to exclude inmates from company in given situations under Section 37. Exclusion from company as a preventive measure dictates that: The Norwegian Correctional Service may decide that an inmate shall be wholly or partly excluded from the company of other inmates if this is necessary in order to: a) prevent inmates from continuing to influence the prison environment in a particularly negative manner, b) prevent inmates from injuring themselves or acting violently or threatening others, c) prevent considerable material damage, d) prevent criminal acts, or e) maintain peace, order and security.

The exclusion from company is carried out in the prisoner’s own cell. In more serious situations with the inmates, we have the opportunity to use coercive measures like the security cell, a restraining bed, or other approved coercive measure in order to: a) Prevent a serious attack on or injury to a person, b) Prevent the implementation of serious threats or considerable damage to property, c) Prevent serious riots or disturbances, d) Prevent escape from prison, during transportation to or from a destination,

Are Høidal  307 e) Prevent unlawful intrusion into a prison, or f) Secure entrance to a closed or barricaded room.

This rule is even more invasive in everyday life for the inmate. Decisions here are also based on discretionary assessment and concrete reviews when the episodes occur. This measure should only be used when conditions make it strictly necessary, and other, more lenient means have been attempted or obviously inadequate.

Why do we have minimal use of solitary confinement in Halden prison? As already mentioned, Halden prison is a high security prison (maximum security). Norway has no special facilities like jails for those in pre-​trial detention. Prisoners in remand may demand to be isolated from convicted persons, but may also ask to be placed in units designated for sentenced prisoners. We have 228 places in this high-​security regime and pre-​trial, 144 of these prisoners are serving a sentence and eighty are in pre-​trial detention. A total of nineteen of the inmates in pre-​trial detention have different restrictions from the court, while only one is in full isolation. Forty-​four prisoners are imprisoned for murder, fourteen for bodily injury, eighty for different drug crimes, eleven for robbery and thirty-​two for sexuality crimes. One hundred forty of the prisoners are Norwegian citizens, and eighty-​six are foreign nationals. Many inmates in Norwegian prisons struggle with mental health problems and often face complex challenges, which is also true in Halden. The prison psychiatry team is a specialist health service and consists of psychologists and psychiatrists from Halden District Psychiatric Center (DPS) and from Østfold Hospital. This team can be closer to their patients than they can on the outside. The team also works extensively across disciplines and cooperates with other teams both inside and outside the prison in relation to the health of individuals. Pre-​trial the psychiatric team has twenty-​two patients (prisoners) in treatment with different diagnoses. Many of these have several diagnoses at a time. Early treatment prevents acting out and other aggression. In Halden prison aggression and physical violence between inmates are rare. Aggression from inmates towards staff is also rare and physical violence from inmates towards staff is so far almost nonexistent. It’s difficult to prove whether the above is caused by the environment, the level of activity (work, education, cognitive programs, training, etc.), or a combination of these elements. The prison officers’ way of treating the inmates is also very important for having a low level of aggression in the prison. Prison officers in Norway go

308  Prisoners’ Association as an Alternative through a two-​year education at the Staff Academy, where they receive full pay and are taught in various subjects like psychology, criminology, law, human rights, and ethics. Most prisoners in Norway have a contact-​officer assigned who assists in contacts with third parties like service providers or officials within the correctional system. The contact officer may guide the prisoner to find the most appropriate way to serve their sentence and fill out applications. This is an important part of the security work in Norwegian prisons. We call it dynamic security. This is produced through relationships and interaction between inmates and employees, which helps to increase the security and well-​ being for both groups. Examples of this are maintaining a presence in the prison community, contact officers work (which involves conversations and support), leisure activities, work, and programs. The prison environment is an important part of dynamic security in Halden prison. Working to maintain the environment means facilitating inmates every day from morning until evening, while at the same time structuring the community with an aim towards rehabilitation. Through the prison environment we’re able to create potential for inmates to work on personal change and development. This development becomes possible through clear, credible repetition of daily structures and relationships. Prison officers and other prison employees who work with inmates in their everyday lives are central to this process. In this way, we are well-​acquainted with individual inmates. This contact provides a greater opportunity to halt undesired or unfortunate events and activities, because we have our fingers on the pulse of the prison environment. Activities from morning to evening help to prevent such aggressive behavior and actions. This process is an important part of the safety work. If you want to work in Halden prison you must focus on dynamic security through a humane attitude, be happy to be together with the prisoners, and respect them even though they have committed a criminal act. Despite the fact that what they have done is not acceptable, the employees must work professionally in the course of their work to help bring about changes in inmates. The employees must be coaches and role models throughout the inmate’s sentence. If they have the wrong attitude in relation to our values and look down on the inmates, then they’re probably in the wrong job. In Halden prison intervention is an option. The prison naturally handles people who are angry and unwilling to cooperate, but isolation over a longer period of time is not a punishment method that is used in Halden prison. If a situation turns out to be difficult and cannot be resolved through dialogue, officers may equip themselves and enter to physically remove the threat and place the individual in question in a security cell. If necessary, officers may also use CS (tear) gas or OC (pepper) spray. This is often more humane than using physical power. Inmates can also be removed from the community and confined to their

Are Høidal  309 cell for a period of time if their behavior is inappropriate or harmful towards other inmates or prison employees. The use of coercive measures like solitary confinement (or security cell as we call it in Norway) is also very rare. In 2018 we used security cells twenty-​five times, which means approximately two times per month. Normally, the residence time in security cell could be a few hours, sometimes one day, and on rare occasions up to a maximum of three days. All experience shows that there is very rarely trouble when prisoners are at work or school. It’s a privilege no one wants to forego. We also have good procedures in place to catch potential unstable “ticking bombs” in the reception section so that these individuals do not become part of the more open environment. We also have small sections that house those suffering from anxiety, older inmates, etc. During the nine years Halden prison has been in operation, there have been few serious incidents. We believe that the level of activity and reintegration efforts is the main reason for the low level of aggression and violence, and the overall good compliance with prison regulations—​however, based on statements from inmates, they do appreciate the facilities, the surroundings and the reduced feeling of being in a high-​security prison.

Bibliography Smith, Peter Scharff. “Prisons and Human Rights—​ Past, Present and Future Challenges.” In The Routledge International Handbook of Criminology and Human Rights, edited by Leanne Weber, Elaine Fishwick, and Marinella Marmo, 525–​35. Abingdon: Routledge, 2016.

18

Colorado Ends Prolonged, Indeterminate Solitary Confinement Rick Raemisch*

Colorado reforms: We control the door, open it As you read this chapter ask yourself the following questions: When did it become okay to lock someone in a cell that is the size of a parking space, twenty-​ three hours per day, seven days a week for decades? When did it become okay to lock someone who is mentally ill in a cell the size of a parking space, twenty-​three hours per day for years, and let the demons chase him or her around in the cell? And when did it ever become okay to take someone who had spent years in segregation, and release them directly to the community? In Colorado, as recently as 2013, there were stories of men who had spent years in segregation, taken out of their cells in shackles by two correctional officers, put on a public bus, and then left after the officers removed the shackles. If I were the bus driver I would have stood up, looked at the other passengers, and screamed “RUN” at the top of my lungs. If our mission is public safety, and it is, why are we sending people back to society worse than when they came in? Ninety-​five percent of those incarcerated in Colorado will return to their community. And every state in the nation is doing this. The over-​use of segregation has nothing to do with public safety, but everything to do with running a more efficient institution. That is a noble goal, but not our mission. That is why we dramatically changed our use of segregation in Colorado. It was to have fewer victims, not more. We have great staff, but we were teaching them the wrong things. We were determined to get back to our primary mission, public safety. In September of 2017, the Colorado Department of Corrections (CDOC) abolished the use of administrative segregation, or as it is now nationally termed by corrections, extended restrictive housing. Currently, we are the only state in the United States that has abolished this practice.



*

Executive Director, Colorado Department of Corrections, 2013–​2018.

Rick Raemisch. Colorado Ends Prolonged, Indeterminate Solitary Confinement In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0018

312  Colorado Ends Prolonged Confinement

History The use of solitary cells has been used in US corrections for decades, and Colorado was no exception. Colorado believed so strongly in the use of segregation that in 1993, it completed its first supermax prison dedicated to housing those in administrative segregation. When the construction was completed, the Colorado State Penitentiary (CSP) was considered state of the art for corrections, and representatives from around the United States came to view and replicate it. When supermax prisons were built, none of us asked psychiatrists, psychologist, doctors, or frankly anyone, other than ourselves, whether or not isolating someone for extended periods of time would harm him or her both mentally and physically. We built them, and with little outside guidance, governed them. Per US Constitutional requirements, administrative segregation offenders had access to a cell-​side law library. They also had access to medical and mental health services. Additionally, each administrative segregation offender could have a TV in his or her cell. They were allowed out one hour per day, five days per week for recreation. When out, they were restrained to and from their recreation area and exercised alone. Visitation, when “earned,” was no-​contact. Colorado had both punitive segregation, for those isolated for punishment, and administrative segregation, which was long-​term isolation for punishment. Punitive segregation had a maximum sanction of 120 days, and if you “earned” your way into administrative segregation you had to “earn” your way out. In Colorado this meant you had to graduate through the level system. If you behaved and followed the rules in level one, you then progressed to level two. And then from two to three. The system was a three-​level system from the day the institution was opened. Unfortunately, if you had a bad day in level three you had to start over in level one. This is how one week turned in to one month, to one year, to five years, to over a decade. It was a tunnel with no light at the end. Imagine being isolated in a cell when you had no idea if and when you would ever come out. After the first supermax was full, Colorado built another one that was completed in 2010.1 Eventually segregation, as it was then known, not only was used for those deemed violent, but also became accepted practice for those involved in non-​ violent infractions. States had policies that essentially stated: “Solitary confinement is to be used for those deemed too violent to be in the general population.” That makes sense, but then states, including Colorado, added something to the effect of “or those deemed as too disruptive to the efficient and orderly operation 1 Centennial Correctional Facility South construction was completed in 2010 and could house 948 maximum-​security offenders.

Rick Raemisch  313 of an institution.” Of course that meant inmates could be placed in segregation for just about any reason. One could cynically state, “Isn’t that part of an inmate’s job, to disrupt an institution?” Of course those most disruptive to institutions included the mentally ill, and many of them remain isolated today—​just not in Colorado. Even Colorado, which had a prison built for the mentally ill during the mid-​1990s, used isolation for those deemed “most disruptive.” Is it a surprise that most incidences of suicides, self-​harm, and the throwing of body fluids occurred in segregation?2

The path to reform In 2011, Governor Hickenlooper took office and appointed Tom Clements to be the executive director of the CDOC. Clements was a thirty-​year veteran of the Missouri Department of Corrections and was known as a progressive leader.3 When Mr. Clements arrived, he observed that over 1,500, or almost 7%, of the inmates in Colorado prisons were in segregation. Mr. Clements began advocating for changing the way segregation was being used. He requested that the National Institute of Corrections lend its expertise to evaluating and recommending reforms. Those experts made the following recommendations regarding offender placement in administrative segregation: narrow the criteria for placement of offenders in administrative segregation; use punitive segregation before administrative segregation; and develop a step-​down process for release from administrative segregation. To start, each offender housed in administrative segregation who had been there for a year or longer was reviewed individually by the deputy directors of prisons. Initial reviews in the first year resulted in the removal of approximately 700 offenders from administrative segregation. These initial reforms would result in the successful closure of the Centennial South Correctional Facility in November of 2012.4 Many of these offenders had been “caught” in the level system, and had been held in isolation for years. As an example of the overuse of segregation, while questioning why a particular offender was housed in administrative segregation for fifteen years, the response was: “He threatened to assault a correctional officer.” Did he assault the correctional officer? “No.” The 2 In 2013, prior to Rick Raemisch’s initiated reforms, there were one completed suicide, thirty-​six self-​inflicted injuries, and four assaults with bodily fluids. 3 Tom Clements served thirty-​one years in Missouri starting his career as a probation and parole officer and working his way up to the director of the Division of Adult Institutions before coming to the Colorado Department of Corrections in January of 2011 under the appointment of Governor John Hickenlooper. 4 The Centennial South Correctional Facility never populated more than 316 of its 948 beds before being decommissioned as an institution for incarcerating offenders in November of 2012.

314  Colorado Ends Prolonged Confinement new response would be: Don’t you think we should let him out? This individual, like many in segregation, had mental health issues. The agency had attempted to develop a program within the administrative segregation institution that was called the “Offenders with Mental Illness” (OMI) Program. The thought process of developing a treatment model for those within the administrative segregation units was noble, but the reality of “treating” them amongst other dangerous and violent offenders was too challenging for the program to be successful. Besides, how do you treat inmates if they are still isolated in cells as a sanction for the behavior that their mental illness drove? In 2012, the Centennial North Correctional Facility was re-​purposed to serve those offenders with mental illnesses as a Residential Treatment Program. The program targeted the offenders that were previously in the OMI program within CSP as well as other offenders from lower-​custody facilities that needed mental health treatment. The first movement of offenders with serious mental illnesses into the institution was in December 2012.

Continued reforms in the face of disaster What can only be described as horrific irony occurred in March of 2013, when an offender who had spent years in administrative segregation was released directly into the community. This individual, who was the type of person Executive Director Clements was attempting to help by initiating reforms, intentionally assassinated a citizen in Denver, as well as Executive Director Clements.5 Prior to murdering the Denver citizen, the parolee had him record a rambling written statement about the horrors of segregation. After the homicide, it would have been easy for elected officials, including Colorado Governor Hickenlooper, to stop all attempts at solitary reform. However, the governor strongly felt the Department of Corrections was, and should continue to move in the direction initiated by Executive Director Clements. In July of 2013, I—​who had been secretary of the Wisconsin Department of Corrections and had over thirty-​five years of experience in the criminal justice system—​was appointed by Governor Hickenlooper as the new executive director of corrections.6 At that time there were approximately 700 offenders

5 Jordan Steffan, “Tom Clements, executive director of Colorado prisons, killed in his home in Monument,” The Denver Post, April 30, 2016, https://​www.denverpost.com/​2013/​03/​19/​tom-​ clements-​executive-​director-​of-​colorado-​prisons-​killed-​in-​his-​home-​in-​monument/​. 6 Susan Greene, “Hickenlooper Appoints New Director to Department of Corrections,” The Colorado Independent, June 14, 2013, http://​www.coloradoindependent.com/​128138/​hickenlooper-​ appoints-​new-​director-​to-​department-​of-​corrections.

Rick Raemisch  315 housed in the reformed administrative segregation unit, with 49% of those offenders set to being released directly into the community. There still were offenders who had been housed in administrative segregation for over twenty-​ four years, and the four reformed statuses or levels of administrative segregation had resulted in a revolving door, with offenders progressing and then regressing for minor rule infractions. For many, there was a continuous cycle of regression back to level one that caused them to be isolated for over a decade with no end in sight. I began asking the questions stated in the first paragraph of this chapter. CDOC leadership recognized that neither the corrections facilities nor the public were safer as a result of the continued use of long-​term administrative segregation. Clearly, in order for the CDOC to operate safer facilities and to meet and fulfill its ultimate mission of long-​term public safety, further administrative segregation reforms had to occur. A strong team of those who believed in further reforms was formed. The CDOC initiated a number of ongoing reform efforts focused on ending reliance on the use of administrative segregation and developing a new determinate “restrictive housing policy” that would pave the way for future reforms. Initial reform efforts were focused on the use of restrictive housing for only the most violent, dangerous, and disruptive offenders, while excluding offenders with serious mental illnesses from being considered for restrictive housing placement. The practice of releasing inmates directly from administrative segregation to the community was ceased as of March 2014. The result was zero offenders released from restrictive housing status directly to the community. Administrative segregation terminology and previous practice involving the “level” system were abolished and replaced with new policies that included a sanction matrix for violent acts that could result in consideration for placement in extended restrictive housing.7 Inmates in this status knew why they were being placed in that status, but more importantly knew when they would be coming out. To support the reforms, and to ensure successful transition to the general population, and eventually the community, the CDOC established a progressive “Step Down” program to assist in successful transition to general population. CDOC realized that someone who had been isolated for years could not be directly placed into the general prison population without dire consequences

7 Extended restrictive housing is the condition of confinement where an offender is removed from the general population for more than twenty-​two hours per day for more than thirty days. This terminology replaced “administrative segregation” or “long-​term isolation.” Restrictive housing is a condition of confinement in which an offender is removed from general population for more than twenty-​two hours for up to thirty days.

316  Colorado Ends Prolonged Confinement occurring. For safety purposes these events were highly structured, and the newly developed units are referred to as Close Custody Management Control Units (CMCU) and Close Custody Transition Units (CCTUs). Offenders in these Management Control Units were allowed to come out of their cells for four hours per day to socialize in small groups of eight. The purpose of the first Unit was to have the offenders get used to socializing, and getting along with other offenders. When a multidisciplinary team, consisting of security, case managers, nurses, management staff, and behavioral health professionals determined an offender had progressed well in this unit, they progressed to the transition unit where in addition to more out-​of-​cell time, more group programming as well as cognitive behavioral programming was delivered to assist in the transition to the general population. By July of 2014 less than 1% (150) of the offender population were in extended restrictive housing. The reforms were successful due to the following units, programs, and tools.

Extended restrictive housing Extended restrictive housing was the most restrictive offender management status for offenders who demonstrated their behavior posed a significant risk. Offenders in this status were sanctioned according to a matrix for their violent infractions and the maximum length of stay at this highest level of incarceration was twelve months. All offenders were reviewed monthly for progression purposes based on behavior. Offenders not only knew the maximum time they would be in what was formerly known as administrative segregation, but based on good behavior, they could be released earlier. Offenders who were in this condition of confinement were allowed out of their cells one hour per day seven days per week. Monthly, they would have “meaningful contact” visits with case managers and clinicians. They were also allowed various privileges based on behavior.

Close Custody Management Control Units As previously mentioned, this type of unit was used to transition offenders from extended restrictive housing to the general population. The offenders are allowed out of their cells for a minimum of four hours per day, seven days per week, with up to seven additional offenders. They are reviewed by mental health and case managers every thirty days for treatment needs and progress.

Rick Raemisch  317

Close Custody Transition Unit (CCTU) As the second “Step Down” program, this is primarily used as a six-​month assignment for close-​custody offenders who are either progressing from Close Custody Management Control Units or for newly arrived offenders whose risk score places them in this unit due to their initial classification by the CDOC.8 These units were established within the Colorado State Penitentiary, which was previously used as a supermax prison. Offenders are out of their cells six hours per day, seven days per week, with up to sixteen offenders participating in group and program activities. The offenders in this unit must participate in cognitive behavioral programming, which increases awareness of the criminal thought process, and how to alter it through a pro-​social paradigm shift. It also assists in developing social and problem-​solving skills without resorting to criminal activity. These programs are evidence-​based.

Behavior Modification Plans In both the Management Control Unit and Close Custody Transition Unit, staff may use Behavior Modification Plans to increase or strengthen the prosocial interactions of offenders. These plans are designed, implemented, and monitored by a multidisciplinary team. Line staff, through their daily interaction with offenders, play an integral part in their implementation. Should an offender behave inappropriately, line staff can use these plans to redirect him and immediately hold him accountable.

Residential treatment program for seriously mentally ill offenders In 2014, the CDOC partnered with the legislature and advocates to facilitate the first-​ever legislation in the United States forbidding the placement of seriously mentally ill offenders in long-​term isolation, absent exigent circumstances. This was a tremendous step for the nation as it moves to stop the long-​term isolation of mentally ill offenders through statutory mandate. While working with the team to develop the bill, the CDOC proceeded with eliminating the housing of offenders with serious mental illness in our administrative segregation facility. In December of 2013, CDOC aggressively stopped the admission of offenders 8 This would include any offender who entered into the CDOC and was dangerously violent or scored high-​risk on intake assessments.

318  Colorado Ends Prolonged Confinement with serious mental illness in this most isolated environment, well ahead of the passing of the legislation that would codify that policy later in 2014. By January of 2014, all offenders designated as having a serious mental illness were evaluated and moved out of administrative segregation to either a residential treatment program or a general population setting. And the CDOC would also remove and ban administrative segregation assignments within the residential treatment programs. Behaviors would be addressed through intensive treatment modification and not isolation. Since inception of the law, the CDOC still has not identified a patient or situation it was not able to work through that caused the exigent circumstances to apply. This law has motivated the CDOC and its leadership to find solutions for housing those with serious mental illness who demonstrate dangerous behaviors. As a matter of fact, the department has taken reforms to the maximum effect and implemented policies to ensure that offenders are assessed for mental health needs and serious mental illness before they are placed into a restrictive housing environment. When there are infractions committed by those with serious mental illness, they are removed from the disciplinary process and treated if it is determined that their mental illness is unstable and contributed to the infraction committed. If the infraction was committed and their mental illness is stable, they may be referred to a management control unit and not restrictive housing. The goal is to maintain their pro-​social interactions and not isolate them. The first step in developing solutions has been the design and re-​design of residential treatment programs within the corrections environment. The residential treatment program model was designed to provide extra care and support for offenders with serious mental illness or intellectual disability, and to ensure these individuals are not placed in extended restrictive housing settings. Any agency wishing to explore reforms in restrictive housing cannot be successful without addressing the mentally ill. Segregation units across the nation become a convenient option to house offenders who are often times acting out based on exacerbation of mental illness. Colorado was no exception to this convenient housing assignment and therefore it was important to design a program and process to capture this population on the front end of sanctioning to prevent further disruption to mental well-​being. A key component of the residential treatment programs was the implementation of a national consultants’ recommendation to introduce opportunities for the offenders in the program to come out of their cells for a minimum of ten hours for structured therapeutic interventions and ten hours of non-​structured recreational opportunities, per week. The department has experienced increased compliance with the implementation over time with the introduction of registered and licensed clinicians to meet the needs of the population. One sergeant at our facility for the seriously mentally ill, San Carlos Correctional Facility, emailed Deputy Executive Director Kellie Wasko, and in

Rick Raemisch  319 reference to the reforms stated: “You’re going to get someone killed.” This was coming from a committed and dedicated employee. Six months later, as Executive Director, I was touring the facility with a professor from Cornell University who was writing a book on criminal justice reforms. The same sergeant was on duty, and unsolicited, the professor asked him if the reforms had reduced incidents. When the sergeant replied “yes,” the professor asked him “by about how much?” The sergeant smiled and replied: “about 80%.” The development of de-​escalation rooms where inmates can go to reduce stress have worked so well we have now placed them in our other facilities. Instead of offenders exploding on staff and other offenders, they now take a time out. This is not 100% successful of course, but is a valuable tool. The program’s success hinges on offenders working together in group therapy and engaging in one-​on-​one sessions with mental health clinicians as well as numerous group therapy opportunities. Both clinical and line staff collaborate daily to provide individualized offender support. The CDOC designed and built restraint tables that accommodate up to four offenders restrained together, to facilitate group and pro-​social interactions with a therapist or clinician, only for those offenders who are stabilizing and still quite dangerous. This allows the safety of the environment, the offenders, and the staff members, but encourages offenders to get out of their cells s and interact in small group. This population of offenders is unique in that they are often times comfortable and safe in the confines of a segregation cell by themselves. They prefer not to participate in groups and psychotherapy appointments—​and they have the right to refuse to come out. The CDOC is not going to inflict force to make these patients come out. So the CDOC Division of Clinical Services and Prison Operations staff had to work together to develop incentives to get these offenders to come out to treatment. Some of these incentives include the introduction of dogs to attend treatment groups or treatment meetings, the use of de-​escalation rooms where offenders can listen to soothing music and change their environment other than their cell, and also the ability to participate in art therapy where they can draw and express their thoughts without talking. The CDOC has worked very hard to develop means to get these offenders out of their cells and to cope with their mental illnesses. The correctional staff in the residential treatment programs sign confidentiality statements and become members of the treatment team so that information can flow seamlessly to ensure the success of the offenders in their treatment plans. Since its inception, the program has facilitated successful outcomes for offenders. Offenders who had lived in administrative segregation for years have progressed through the program and excelled in group environments. Many of these offenders hold steady prison jobs and continue to make positive changes. And for the first time in the history of the CDOC, there are no offenders with

320  Colorado Ends Prolonged Confinement acute or chronic mental health needs or illnesses that are not able to be immediately placed, assessed, and treated. The CDOC has three residential treatment programs, two designated for males and one program at a female facility: The San Carlos Correctional Facility Residential Treatment program is a 255-​ bed facility that houses our most acutely mentally ill male offenders. In 2013, the CDOC removed all administrative segregation sanctions within this facility that houses those with serious mental illnesses. The Centennial Correctional Facility Residential Treatment Program is a 240-​bed program that houses male offenders with chronic mental health treatment needs for a longer period of treatment. The Department identified significant outcomes (raw data) over the course of the first fiscal year as it related to the management of these facilities: San Carlos Correctional Facility (SCCF):

• Special Controls in the first year at SCCF were reduced by 93% • Forced cell entries in first last year at SCCF declined by 77% • Offender on staff assaults in the first year at SCCF declined by 46% Centennial Correctional Facility (CCF):



• Special Controls in the first year at CCF declined by 85% • Forced cell entries in the first year at CCF declined by 81% • Offender on staff assaults in the first year at CCF reduced by 50%.

Female and youthful offender management In 2015, the CDOC adopted a policy and practice that does not allow for female or youthful offenders to be placed into extended restrictive housing. The CDOC recognizes that both females and youthful offenders require a management style to include due process and sanctions that are consistent with trauma-​informed practice.

The end of extended restrictive housing During September of 2017 the CDOC successfully ended the use of having anyone spend more than fifteen days maximum in an isolated cell for twenty-​two or more hours per day. The fifteen days is punitive segregation for disciplinary infractions only. Currently Colorado is the only state in the country that has

Rick Raemisch  321 accomplished this. All other inmates that previously would have been in extended restrictive housing twenty-​three hours per day for a maximum of a year are now out four hours per day. They are restrained at “restraint tables.” And while they are at these tables, they are able to interact with other offenders, clinicians, and correctional staff. When we first started this unit on a volunteer basis, only a dozen came out. After a short period of time, well over one hundred were coming out for programming and socialization. Although this is too new to declare victory, the philosophy appears to be working, and the purpose is of course to correct their behavior so the restraints can be removed. This was part of our philosophy that you can restrain to maintain safety, but don’t have to isolate.

Lessons learned The CDOC did not accomplish this without encountering a few roadblocks. First, not only was there no map to follow, there was no road. No state had gone down the path that the CDOC had. Programs like the residential treatment program were developed with outside consultants. Why ten hours of therapy, and ten hours of other activity per week? Why not? We had to start somewhere. We were not prepared to address those that refused to leave segregation, some of whom had been isolated for years. We recognized the irony of attempting to physically remove someone from a cell that we had probably physically forced them into to begin with. We had approximately 250 who refused to come out. Some were scared, some had mental health issues, and some just couldn’t comprehend being out in the general population. For the offenders who refused to come out of their cells, we ensured that mental health clinicians, case managers, nurses, and management staff routinely made rounds to speak with those offenders. We also offered positive incentives such as additional canteen items, phone calls, etc. And for those offenders with mental health issues, we introduced dogs from our canine program that assisted these offenders with feeling safe. Eventually the offender would engage with the staff and we were able to encourage them to participate in groups or transports to more appropriate facilities. But at the end of the day, we used humane interactions to get them to trust coming out of a cell that they had grown and learned to believe sheltered them. I was present when one inmate with mental health issues had been in segregation for years, but exited his cell due to one of the dogs. When asked why he came out for the dog he replied: “It’s the only constant thing I had in my life when I was growing up.” There were some offenders that had transitioned out of administrative segregation, but then intentionally committed infractions in order to make their way

322  Colorado Ends Prolonged Confinement “back” to the extended restrictive housing unit, as they preferred the solitude and individual cells offered within this environment. In response, we developed steps to reduce this revolving door type of offender. If they were in need of protective custody, we housed them with similar offenders. If an offender posed too great a threat, for instance a high-​profile inmate, we transferred him out of state. For those that couldn’t psychologically deal with being in the general population we continued to work with them via our programs. Staff began to witness successful, permanent transitions. Even offenders serving death sentences were able to interact with other offenders and land prison jobs. Colorado no longer has a “death row.” Offenders with death penalty sentences are out of their cells together for four hours each day. Another issue that we simply weren’t prepared for was that some outside groups, and even some within the corrections community, didn’t believe we had accomplished what we said we did. We were accused of just calling administrative segregation something else. If an inmate didn’t want to come out for four hours per day, maybe only one or not at all, we didn’t force him or her—​we made the opportunity available to come out of the cells. We coached them but were accused of not having them out four hours per day. We overcame this by opening our facilities to those who wanted to see what we had done. This included groups that typically are not invited into prisons. Groups from Yale and Harvard Law Schools toured, as did other groups from Solitary Watch, and The New  York Times, to name a few. When staff would return from an out-​of-​state corrections seminar they would complain that at least one person from another agency would again make a comment that we hadn’t accomplished what we said we had. Finally, in response, I wrote my second op-​ed in The New York Times, which explained that we had ended extended restrictive housing once and for all.9 We were criticized if offenders did not exit their cells for the full ten and ten program. Again, we coach and encourage and don’t force those with mental health issues. We believe time and patience is the answer. The environment they live in is saturated with clinical observation, treatment, and interventions. Of course not all of our staff bought into our reforms either. Some were dead set against it. Some believed we were taking away a valuable tool. We developed numerous work groups to have input into our new polices. All areas of the organization were represented. We published a weekly message to all staff, and explained not only where we were going, but why and how. Everyone was reminded of our main mission, public safety. We explained that we know what 9 Rick Raemisch, “Why We Ended Long-​Term Solitary Confinement in Colorado,” op-​ed, The New  York Times, October 12, 2017, https://​www.nytimes.com/​2017/​10/​12/​opinion/​solitary-​ confinement-​colorado-​prison.html.

Rick Raemisch  323 hasn’t been working for decades. Let’s try something new, and we can always go back to where we were if we fail. As part of “walking the talk” I spent three shifts as an inmate in the supermax. I wrote up my experience for the newsletter, but after writing it thought it might be appropriate for a larger audience. The New York Times printed the article, and it stirred up the debate on the overuse of solitary.10 Special emphasis was placed on providing staff with continuing education opportunities. The reason for this was twofold: to ensure the effective rehabilitation of offenders; and to decrease both staff and offender injuries by equipping staff to deal with difficult offenders using preventative measures instead of force. All staff are trained in mental health awareness and receive regular education on professionalism and positive communication. The CDOC continues to adjust program protocols to facilitate the most effective atmosphere for rehabilitation. Our incentive-​based foundation requires staff to develop new techniques that discourage negative behaviors without invoking formal disciplinary procedures. We continue to improve both incentives and appropriate consequences for behavior both good and bad. Nationally there is data showing the detrimental physical and mental damage done to offenders placed in long-​term segregation.11 There have not been any studies on the effects on staff on the other side of the door. Can you imagine working eight to twelve hours per day in a unit where there is constant screaming, banging, throwing of body fluids, and being where most self-​harm and suicides occur?12 What do you possibly say when you go home and your partner asks, “How was your day?” The fact is that it takes its toll on staff as well. Now that the CDOC’s supermax has been repurposed, the change in climate is dramatic. That’s not to say there are no longer incidents because there are, and some are serious, but the positive change in attitudes of both staff and inmates is evident. There is no question that none of the reforms could have been accomplished without the work and creative thinking of the staff responsible for implementing them. The teams that were formed were given autonomy to take the goals of the

10 Rick Raemisch, “My Night in Solitary,” op-​ed, The New York Times, February 20, 2014, https://​ www.nytimes.com/​2014/​02/​21/​opinion/​my-​night-​in-​solitary.html. 11 Craig Haney, “Mental Health Issues in Long-​Term Solitary and Supermax Confinement,” Crime & Delinquency, January 2003, http://​journals.sagepub.com/​doi/​pdf/​10.1177/​0011128702239239; Bruce. A. Arrigo and Jennifer Leslie Bullock, “The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units, Reviewing What We Know and Recommending What Should Change,” International Journal of Offender Therapy and Comparative Criminology 52, no. 6 (December 2008), http://​journals.sagepub.com/​doi/​pdf/​10.1177/​0306624X07309720; Terry A. Kupers, Expert Report of Terry A. Kupers, M.D., M.S.P., Eastern Mississippi Correctional Facility, June 16, 2014, https://​ www.aclu.org/​sites/​default/​files/​assets/​expert_​report_​of_​terrry_​kupers_​with_​table_​of_​contents. pdf. 12 ACLU, “Briefing Paper: The Dangerous Overuse of Solitary Confinement in the United States,” ACLU study, August 2014, https://​www.aclu.org/​sites/​default/​files/​assets/​stop_​solitary_​briefing_​ paper_​updated_​august_​2014.pdf.

324  Colorado Ends Prolonged Confinement executive director and operationalize them—​therefore strengthening the ownership of the processes. It is the staff and the culture of progressive thinking that made all of the reforms occurring in Colorado possible. Extended restrictive housing is a tool that should be taken out of the tool box. The fact of the matter is that it does not work. Offenders end up in restrictive housing by one of two ways. They either react to a situation without thinking about the consequences, which is how a number of them got into prison to begin with, or they were fully aware of the consequences of their act, and did it anyway. At best it suspends a problem, but in all probability multiplies it. The evidence is clear that it either manufactures or multiplies mental illness. In Colorado we believe it is time to end the practice. As a result, we believe that ultimately the community will be safer. We have repurposed one supermax, and the second one we built remains vacant. Our hope is to turn it into a receiving and discharge center, and a reentry center to further emphasize that this is the direction we need to go. There are a number of reasons for doing this, but simply put—​it is the right thing to do.

Bibliography American Civil Liberties Union. “Briefing Paper:  The Dangerous Overuse of Solitary Confinement in the United States.” August 2014. https://​www.aclu.org/​sites/​default/​ files/​assets/​stop_​solitary_​briefing_​paper_​updated_​august_​2014.pdf. Arrigo, Bruce. A., and Jennifer Leslie Bullock. “The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units, Reviewing What We Know and Recommending What Should Change.” International Journal of Offender Therapy and Comparative Criminology 52, no. 6 (December 2008). http://​journals.sagepub.com/​ doi/​pdf/​10.1177/​0306624X07309720. Greene, Susan. “Hickenlooper Appoints New Director to Department of Corrections.” The Colorado Independent. June 14, 2013. http://​www.coloradoindependent.com/​ 128138/​hickenlooper-​appoints-​new-​director-​to-​department-​of-​corrections. Haney, Craig. “Mental Health Issues in Long-​Term Solitary and Supermax Confinement.” Crime & Delinquency. January 2003. http://​journals.sagepub.com/​doi/​pdf/​10.1177/​ 0011128702239239. Kupers, Terry A. Expert Report of Terry A.  Kupers M.D., M.S.P., Eastern Mississippi Correctional Facility. June 16, 2014. https://​www.aclu.org/​sites/​default/​files/​assets/​expert_​report_​of_​terrry_​kupers_​with_​table_​of_​contents.pdf. Raemisch, Rick. “My Night in Solitary.” Op-​ed. The New York Times. February 20, 2014. https://​www.nytimes.com/​2014/​02/​21/​opinion/​my-​night-​in-​solitary.html. Raemisch, Rick. “Why We Ended Long-​Term Solitary Confinement in Colorado.” Op-​ ed. The New  York Times. October 12, 2017. https://​www.nytimes.com/​2017/​10/​12/​ opinion/​solitary-​confinement-​colorado-​prison.html. Steffan, Jordan. “Tom Clements, Executive Director of Colorado Prisons, Killed in His Home in Monument.” The Denver Post. April 30, 2016. https://​www.denverpost.com/​ 2013/​03/​19/​tom-​clements-​executive-​director-​of-​colorado-​prisons-​killed-​in-​his-​ home-​in-​monument/​.

19

Reflections on North Dakota’s Sustained Solitary Confinement Reform Leann K. Bertsch *

As director of the North Dakota Department of Corrections and Rehabilitation (ND DOCR), I  have overseen its adult, juvenile, and community corrections services for the past thirteen years. The ND DOCR operates three adult male prison facilities, the maximum-​ custody North Dakota State Penitentiary (NDSP) located in Bismarck, the medium-​custody James River Correctional Center (JRCC) located in Jamestown, and the minimum-​custody Missouri River Correctional Center (MRCC) in Bismarck. The ND DOCR also oversees a women’s prison facility, which is operated by a contracting agency, the Dakota Women’s Correctional Rehabilitation Center (DWCRC) at New England, North Dakota. Five transitional facilities operated by contracting agencies across the state serve adult DOCR residents, as well. At any given time, the ND DOCR has around 1,600 men and 200 women in its care and custody. There are also around 7,000 adults serving terms of community supervision in North Dakota. In addition, the ND DOCR operates the North Dakota Youth Correctional Center and community supervision services for adolescents. The largest solitary confinement unit within the ND DOCR is the 108-​bed administrative segregation unit at NDSP. This chapter will focus on the broader systems reforms that were implemented prior to solitary confinement reform, why it was necessary to change the way we use solitary confinement or restrictive housing, the specific changes we made within the unit, how we improved transitions from the unit, the challenges associated with this work, and the successes we have seen as a result of the reforms. In 2010, as the research support for specific, evidence-​based correctional practices was growing, the ND DOCR started down the long and ever-​winding path of system reform and cultural change. All staff received training in motivational interviewing and cognitive-​behavioral intervention strategies in effort to create a culture in which each employee, regardless of role, could serve * Director, North Dakota Department of Corrections and Rehabilitation; former President, American Society of Corrections Administrators (ASCA). Leann K. Bertsch. Reflections on North Dakota’s Sustained Solitary Confinement Reform In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0019

326  Reflections on North Dakota’s Reform as a conduit for positive change. ND DOCR also redesigned its assessment and group intervention practices, implementing the Risk-​Needs-​Responsivity model of targeting specific criminogenic risk and need areas while being responsive to individual factors like motivation level and cognitive functioning. Prison facilities implemented a positive behavior report system, which mirrors the disciplinary system but is designed to “catch” people doing well, in order to operationalize the behavioral principle of reinforcement. Corrections officers started recognizing pro-​social behaviors and our group programs became more effective, but the prison population and recidivism rates had not changed for the better. It became clear that many opportunities to have a positive impact were lost because we did not have the infrastructure to help staff understand how to use their training to the fullest on the job. In October of 2015, myself and a group of officials from North Dakota traveled to Norway to learn about the Norwegian criminal justice system through a program sponsored by the Prison Law Office and the University of California San Francisco. Norway boasts one of the lowest incarceration rates and one of the lowest recidivism rates in the world. What we saw there was striking, especially the implementation of two key principles:  normalcy and dynamic security. Normalcy means that prison life should be as much like life on the outside as possible. The consequence of prison is the restriction of freedom of movement. Otherwise, people in prison must have access to the same kinds of resources they would have in their home communities. Norwegian prison residents earn a living wage, reside in areas that look more like apartments than cells, buy groceries, cook, budget, and access a wide range of leisure activities. The idea is that the transition from prison is more successful when the person is accustomed to living independently and having the same responsibilities as any adult. Dynamic security is the idea that institutional and public safety are achieved by forming supportive, friendly, respectful connections that recognize the shared humanity between staff and residents and amongst residents. While the United States prison system has generally relied on things like handcuffs and steel doors for an increased sense of safety, you will not find many of those in Norway. What you will find is officers and residents eating together, having friendly conversations, and working and having fun alongside one another. This approach is based on the idea that all residents will eventually be your neighbor and that it is better for everyone if our neighbors are engaged in their community and feel supported by others. In the United States, about 96% of people in prison will eventually be released. For North Dakota, that number is around 98%. Prior to the Norway trip, we had realized that no amount of classroom training, positive behavior report-​writing, or structured skill-​building exercises would change the hearts and minds of staff who had become accustomed to an

Leann K. Bertsch  327 overly punitive system and minimal interaction with those we serve. Seeing the success of the Norwegian system only made implementing reforms in North Dakota all the more urgent. To that end, we asked ourselves two questions: “How can we create successful experiences for staff so they are motivated to interact more frequently and build rapport with those we serve?” and “Where are we doing the most harm?” We found the answers to both of those questions in the administrative segregation unit at NDSP. By the fall of 2015, the number of people living in restrictive housing had reached a record high of over 100 residents. NDSP opened a forty-​bed expansion to the restrictive housing unit in the summer of 2013 and when we built it, they came. With over 100 residents and generally 5 staff assigned to the tiers (with one control room officer), the culture of the unit had become one in which staff and residents did not interact unless it was absolutely necessary. The officers were focused on simply meeting the residents’ basic needs (food, clothing, etc.) and completing basic correctional duties such as rounds and escorts. Staff seemed to believe that less interaction would result in less conflict, but it actually had the opposite effect. Residents had very little control over their environment and few opportunities for social interaction, so disruptive behaviors resulting in use of force and use of the Special Operations Response Team were fairly commonplace. The unit was in a constant state of reaction, with little time or attention paid to proactive prevention strategies. When the reasons for placement in restrictive housing were examined, a general “failure to follow institutional rules” was frequently cited. These rule violations often included relatively minor behaviors, and it became clear that we had begun to use restrictive housing to respond to people we were mad at, rather than reserving it for those we were truly afraid would cause harm to others. In addition, racial minority groups and residents with serious mental illness were overrepresented in restrictive housing settings. We also noticed that more and more people were leaving the administrative segregation unit and going directly to the streets of their home communities. Research suggests that leaving prison from a restrictive housing setting results in a higher risk for recidivism.1 In response, ND DOCR embarked on a restrictive housing reform project with three main goals: Reduce the number of people living in restrictive housing; improve interactions between staff and residents in the unit (thereby giving staff the opportunity to hone their skills and be reinforced for using them), while improving access to behavioral health care; and improve the transition from restrictive housing to the general prison community and, ultimately, a life in free

1 David Lovell, Clark Johnson, and Kevin Cain, “Recidivism of Supermax Prisoners in Washington State,” Crime & Delinquency 53 (2007).

328  Reflections on North Dakota’s Reform society. The phrase that best summarizes the three distinct facets of this project is “Separate, Assess, Equip.”

Separate The first step was to limit the types of institutional misconducts that could make someone eligible for placement in restrictive housing to the “top 10” most harmful, which include the following:  assault, threatening another person, sexual assault, possession of a weapon, murder, attempted murder, escape from a maximum-​or medium-​custody facility, arson, taking hostages, and trafficking contraband into a maximum-​or medium-​custody facility. One of the key challenges to these reforms related to eliminating fighting, failing to follow staff directives, and acting in a disorderly manner toward staff as behaviors that would warrant placement in restrictive housing. Some staff members thought that eliminating the use of restrictive housing for these acts was akin to eliminating all consequences or sense of accountability.

Assess The next step was to implement a multifaceted screening and assessment process. Any captain can make the decision to place someone in restrictive housing; however, the placement is now reviewed by the unit manager and chief of security within twenty-​four hours, and they determine whether the person needs to stay in the restrictive housing unit any longer. The unit sargent conducts a mental health screening, using an adapted version of the Brief Jail Mental Health Screen,2 an empirically validated tool that has been shown to effectively screen for serious mental illness, as soon as possible after the person arrives. This screening can result in an emergent referral to crisis services, a routine mental health follow-​up within seventy-​two hours, or no referral for further mental health service. Mental health staff are directed to assess whether the placement in restrictive housing is contraindicated based on the presence of serious mental illness or the likely deterioration of mental status. If the placement is contraindicated due to mental illness, an alternative housing placement must be made. Typically, the person is moved to the Special Assistance Unit, an inpatient mental health unit within the prison at the JRCC, or returned to a general population setting with increased supports.



2

Policy Research Associates, Inc., Brief Jail Mental Health Screen, 2005.

Leann K. Bertsch  329 If the placement in restrictive housing is deemed necessary and the person does not evidence serious mental illness, a committee (which meets once per week and includes the chief of security, unit manager, and supervising mental health staff) determines whether an additional referral for an Intervention Needs Assessment is warranted. The Intervention Needs Assessment is performed by a mental health clinician and includes a violence risk assessment, motivational assessment, and recommendation to the deputy warden regarding whether the individual needs to remain in restrictive housing and be placed in the Behavioral Intervention Unit program. This multi-​tiered filtering process has resulted in less than 30% of those who enter the unit remaining there for any significant length of time. It is important to note that the disciplinary process takes place in tandem with these additional assessments and adheres to due process requirements.

Equip The decrease in the number of people in the Behavioral Intervention Unit (BIU) setting has allowed staff to make much more impactful use of their time. One key factor to the success of these reforms has been maintaining the same staffing level, with much fewer residents in the unit. Initially, corrections officers were asked to simply have a conversation once per shift with each person living in the unit. Once that happened consistently, the energy of the unit completely changed. There was laughter, rapport, and a dramatic decrease in disruptive behaviors. From there, the unit officers received modeling and coaching from the case manager related to engaging in change-​oriented discussions and teaching cognitive and behavioral skills. Now, officers practice a skill with each resident at least once per shift, in addition to the expectation of having friendly conversation as part of their routine job duties. One example of a skill practice they might do is called Using Self-​Control. The skill steps include paying attention to what is happening in the body that indicates a risk for losing control, thinking about what is causing the risk, and applying a healthy coping strategy to manage the risk (walking away, talking to a support person, using a distraction activity, deep breathing, etc.). The unit sargent is now tasked with planning one pro-​social, structured group recreational activity each weekend to increase positive engagement with staff and out-​of-​cell socialization. These activities have included bingo, movies, playing bean bags on the tier or in outdoor recreation space, painting, and crafts such as making greeting cards. There is a weekly art class taught by a preferred housing resident for those in BIU. Behavioral health staff also provides at least one structured group leisure activity each week for one to two hours, such as mindfulness practice, meditation videos, or music listening.

330  Reflections on North Dakota’s Reform All unit staff provide reinforcement in the form of a variety of tangible property items, extra recreation time, extra showers, and so on based on the person’s participation in skill practice and other therapeutic and social activities, as well as the parameters of individualized behavior plans. Currently, BIU residents can access up to two hours and forty minutes of recreation per day when they engage in skill practices and therapeutic groups, in addition to time spent in groups, individual sessions, and specially planned enrichment activities. Residents can attend a cognitive-​behavioral group intervention that lasts one hour and is held three times per week. The group focuses on learning and practicing skills to reduce or eliminate the use of violence, manage trauma reactions, and cope with restrictive housing. The average BIU resident who is actively participating in programming has access to about twenty-​four hours per week, or a little over three hours per day, of out-​of-​cell time. At least five of these hours are spent participating in planned activities with a group of peers. Prior to late 2015, residents were given just one hour per day of unstructured recreation time, usually alone in an outdoor recreation space. If a resident is not participating in group interventions, social activities, and skills practice with staff, mental health staff meet with him or her more frequently on an individual basis and create a specialized behavior plan to improve motivation to engage. We have to constantly remind ourselves that we are looking for progress and not expecting perfection. Through group and individual therapeutic work, each resident completes an individualized Success Plan, detailing his own reasons for working on positive change, identifying a support system, and planning for how he plans to apply pro-​social skills in future high-​risk situations. Once the Success Plan is complete, barring any continued behavioral concerns, the weekly BIU Committee recommends a step-​down placement in the Administrative Transition Unit (ATU). ATU is one specific tier within the same physical setting as the BIU; however, residents are free to move about the unit without escort or restraints. They also have access to one recreation period per day with the general prison population and can attend all meals in a general population setting. Corrections officers still offer a skills practice conversation at least once per day, and ATU residents attend a cognitive-​behavioral group intervention twice per week. The group is offered less often as residents work on maintaining positive changes with gradually reduced staff support. While the BIU group generally focuses on practicing new skills in hypothetical future situations, the ATU group is a place for participants to discuss their use of the skills in real, current scenarios they encounter as they increase their freedom and engagement within the prison setting. The BIU Committee works with the individual resident to determine when they are ready to move to a general population housing unit. During this time,

Leann K. Bertsch  331 mental health staff may make referrals to additional group interventions offered to ATU and general population residents, such as Thinking for a Change or the Conflict Resolution Program. Those transitioning from ATU can also access more frequent meetings with their case manager or a counselor assigned to their general population housing unit. If the person displays any BIU-​placing behaviors while on ATU, or significant risk of such behaviors, they can be placed back in the BIU program. In the past, residents of administrative segregation would move from being escorted by two staff in restraints any time they were out of their cell to a general population housing unit. The ATU approach allows for a more gradual and safer transition while the resident maintains some of the extra support offered by the BIU and works on independently applying what he has learned.

Outcomes The ND DOCR has maintained an approximately 67% reduction in the population of its Behavioral Intervention Unit (formerly Administrative Segregation) at the NDSP over three years, as compared to the peak population numbers in 2015. The number of people residing in BIU and ATU combined as of December 27, 2018 was twenty-​five. The daily count within this unit has generally remained under thirty people since late 2015. Prior to implementing the changes outlined in this chapter, the population of restrictive housing, as well as the length of stay, had steadily risen over the previous ten years. Before making these changes, it was commonly accepted that getting into a fight would result in an administrative segregation stay of around six months. Not only that, but very little was done in terms of helping the residents work on positive change during that time. Since implementing reforms, the average length of stay in BIU has fluctuated between thirty and sixty days, although there are a few people who reside in the unit much longer based on the severity of violence, their expression of continued risk for violence, or their own preference for the BIU setting. Over the past three years, ND DOCR has also sustained substantial reductions in the use of the Special Operations Response Team and overall uses of force in the BIU. The prevalence of negative behaviors by residents of the unit has also dramatically decreased. ND DOCR believes the focus on reinforcement of positive change, building friendly relationships between staff and residents, and allowing residents access to pro-​social coping activities are collectively responsible for these changes. Over the twenty-​six months prior to the project’s start, 42.3% of those admitted to administrative segregation returned to the unit, with an average time to readmission of eighty days. When data was collected at 27 months after the project’s start, only 20.4% of those admitted to BIU had been

332  Reflections on North Dakota’s Reform readmitted, with an average time to readmission of 107.5 days. While ND DOCR plans to continue working to refine data collection and examine these outcomes, we are very encouraged by these initial results. As a result of these successes, NDSP was able to convert one of the tiers within BIU to a preferred housing area, which is home to twenty of the most consistently pro-​social residents within the facility. In the future, ND DOCR plans to create a peer support resource inside the prison. Trained and certified Peer Support Specialist residents will be assigned to a small caseload of peers and use their own lived experience to assist others in their change process. These changes, while overwhelmingly positive, have not been without challenges. NDSP did see a significant increase in physical fights between residents in mid-​2016 to mid-​2017. This increase occurred at the same time that our overall prison population was the highest it has ever been and we have some suspicions that this may be correlated more strongly with the population increase than the changes in the use of restrictive housing. In addition, the incidence of violence within NDSP has not risen to previously unmatched levels since we changed the way we operate restrictive housing. In fact, we saw the highest incidence of violence in the third quarter of 2015, immediately prior to implementing reforms. As the prison population has slowly stabilized and begun to decrease, the prevalence of fighting has decreased, as well. While most staff has been supportive of the changes, there has been a perception that the overall safety of the facility has been compromised. Factually, there has been no increase in assaults on staff, assaults on residents by peers, or the overall level of violence perpetrated within the institution. There has also been a perception that residents are not “held accountable” for rule violations. In reality, residents continue to receive significant sanctions; the only difference is those sanctions are much less likely to include lengthy placements in restrictive housing, especially for non-​violent offenses. In order to address the problem of institutional violence more thoroughly, ND DOCR has developed a preventative approach which seeks to head off violence before it occurs. In early 2018, ND DOCR began assessing people entering prison using the Risk of Administrative Segregation Tool3 in order to identify those at highest risk for displaying institutional violence resulting in placement in restrictive housing. Those identified as high risk are offered a ten-​session group intervention program focused on establishing a prosocial adjustment to prison and managing high-​risk situations for violence in an effective, non-​ violent manner. ND DOCR intends to collect and analyze data regarding the impact of such prevention programming as we continue to also collect and analyze 3 Ryan M. Labrecque and Paula Smith, “Does Training and Coaching Matter? An 18-​Month Evaluation of a Community Supervision Model,” Victims & Offenders 12 (2017): 233.

Leann K. Bertsch  333 data regarding the effectiveness of solitary confinement reform. While it is not easy to implement such broad reforms, seeing firsthand the positive effects the changes have had on our residents and staff shows that it is what needs to be done if we intend to put our mission of creating safer communities into action.

Bibliography Labrecque, Ryan M., and Paula Smith. “Does Training and Coaching Matter? An 18-​ Month Evaluation of a Community Supervision Model.” Victims & Offenders 12 (2017): 233–​252. Lovell, David, Clark Johnson, and Kevin Cain. “Recidivism of Supermax Prisoners in Washington State.” Crime & Delinquency 53 (2007): 633–​656. Policy Research Associates, Inc. Brief Jail Mental Health Screen. 2005.

20

Solitary Confinement in Canada Joseph J. Arvay and Alison M. Latimer*

On January 17, 2018, a historic decision put Canada at the forefront of an international movement against solitary confinement. In this chapter, we describe the Canadian litigation and the findings of the trial judge with respect to the laws’ constitutional invalidity. We end by commenting upon the disconnect between the Canadian government’s repeated stated commitment to reform solitary confinement on the one hand, and its unchanged litigation position seeking to uphold these inhumane laws on the other. Solitary confinement has been described by Professor Michael Jackson, an expert for the plaintiffs in the litigation, as “the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country.” The British Columbia Supreme Court found that Sections 31–​33 and 37 of the Corrections and Conditional Release Act,1 the Canadian laws governing solitary confinement (or what the Canadian law refers to as “administrative segregation”), are unconstitutional, giving rise to harms that cannot be tolerated in our legal system.2 The trial judge found that the laws also discriminate contrary to Section 15 of the Charter,3 because the laws fail to respond to the needs of mentally ill and/​or mentally disabled inmates and Aboriginal4 inmates. Instead, the laws impose burdens and deny benefits in a manner that perpetuates their disadvantage. The laws also violate section 7 of the Charter, because solitary confinement risks the life and impairs not only the liberty but also the security of all who are subjected to it. The system also lacks basic safeguards, such as independent external review and access to counsel at segregation hearings.

* Partners, Arvay Finlay LLP. Mr. Arvay, O.C., Q.C., and Ms. Latimer acted as co-​counsel for the plaintiffs in British Columbia Civil Liberties Association and John Howard Society v. Attorney General of Canada, [2018] B.C.J. No. 53, 2018 BCSC 62 (B.C.S.C.) [hereinafter BCCLA & JHS]. 1 Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). 2 British Columbia Civil Liberties Association and John Howard Society v. Attorney General of Canada, [2018] B.C.J. No. 53, 2018 BCSC 62. 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1928, c. 11. 4 Aboriginal is a defined term in Section 79 of the CCRA, 1. Joseph J. Arvay and Alison M. Latimer. Solitary Confinement in Canada In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0020

336  Solitary Confinement in Canada The constitutional challenge to Canada’s laws that authorize solitary confinement was started on January 19, 2015 by the John Howard Society, an organization committed to criminal justice reform including prison reform, and the British Columbia Civil Liberties Association. The litigation was a systemic challenge that resulted in a judgment by the trial court (the British Columbia Supreme Court) that solitary confinement, as it has been authorized to be practiced in over sixty federal penitentiaries in Canada, is unconstitutional. The trial spanned nine weeks in July and August 2017. Twenty-​eight witnesses were cross-​examined before the court including multiple expert witnesses on a range of subject matters relating to the practice and effects of solitary confinement.5 Despite the Attorney General’s protestations to the contrary, the trial judge found that administrative segregation is a form of solitary confinement. He found that it causes some inmates physical harm6 and that it places all inmates subject to it in Canada at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-​harm and suicide. Some of the specific psychological harms, he found, include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-​mutilation, and suicidal ideation and behavior. The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to solitary confinement are subject to the risk of harm to some degree.7 The trial judge further found that the negative consequences of solitary confinement include onset of mental illness and exacerbation of pre-​existing mental illness. The trial judge also found that solitary confinement results in the development and worsening of physical symptoms. The negative physical consequences flow from the lack of access to exercise spaces that allow sustained walking, and conditions of confinement that place older inmates (inmates in their fifties) at high risk of immediate and serious physical harm.8 Although not detailed in the trial judgment, the evidence of Dr. Brie Williams, which was accepted by the trial judge, supported that physical symptoms include: (a) current and future medical risk of the development or worsening of deconditioning in older adults; (b) a current and future medical risk of the development or worsening of serious medical conditions such as functional decline, cognitive impairments including dementia and Alzheimer’s disease, depression, cardiovascular disease, and death; (c) a current and future medical risk of the development or worsening of



5

BCCLA & JHS, 2, para. 137; see also paras. 8–​11. Id., paras. 307–​10. 7 Id., paras. 247, 264–​72, 277–​84. 8 Id., paras. 277–​78, 328. 6

Joseph J. Arvay and Alison M. Latimer  337 memory impairment in older adults; (d) a current and future medical risk of the worsening of symptoms associated with osteoarthritis and, in turn, to the future risk of serious falls; (e) a current and future medical risk of the development and worsening of hypertension and, in turn, a future risk of end-​organ damage, morbidity, and mortality; (f) a current and future medical risk of the adverse experience and impact of hearing impairment and, in turn, a future risk of functional and cognitive impairments including dementia and falls; (g) a current and future medical risk of the development and worsening of insomnia and poor-​quality sleep and, in turn, a future risk of cognitive and functional decline, falls, and early mortality; and (h) a current and future medical risk of the worsening and poor management of type 2 diabetes and, in turn, a future risk of complications from type 2 diabetes, including further disability and cardiovascular disease. The record established and the trial judge found that the indeterminacy of solitary confinement is a particularly problematic feature that exacerbates its painfulness, increases frustration, and intensifies the depression and hopelessness that is often generated in the restrictive environments that characterize solitary confinement.9 Many inmates are likely to suffer permanent harm as a result of solitary confinement.10 As the trial judge found, this harm is “most commonly manifested by a continued intolerance of social interaction, which has repercussions for inmates’ ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison.”11 Negative health effects can occur after only a few days in solitary confinement, and those harms increase as the duration of the time spent in solitary confinement increases. The trial judge further concluded that the fifteen-​day maximum prescribed by the Mandela Rules is a generous but defensible standard given the overwhelming evidence that within that time individuals can suffer severe psychological harm.12 And the trial judge concluded that the laws that authorize solitary confinement give rise to discrimination against Aboriginal inmates who are subject to racism and racial profiling in spite of the Correctional Service of Canada’s (CSC) efforts to eliminate such practices.13 Even in a context where Aboriginal inmates are heavily over-​represented in Canada’s federal prisons, they are further over-​ represented in solitary confinement.14 Aboriginal inmates also consistently have an average length of stay in solitary that is greater than for black or Caucasian 9 Id., para. 248. 10 Id., paras. 249, 276, 282, 284. 11 Id., para. 249. 12 Id., para. 250. United Nations, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), resolution adopted by the General Assembly on December 17, 2015, UN DOC A/​RES/​70/​175 (the Mandela Rules). 13 Id., para. 486. 14 Id., paras. 64, 466–​67, 469.

338  Solitary Confinement in Canada inmates.15 The discriminatory impacts include the fact that Aboriginal inmates are placed in solitary confinement more often, with limited access to programming, and this impacts their ability to transfer to lower-​security institutions and to obtain conditional release, as they may not have been able to carry out their correctional plan and may not be perceived as significantly rehabilitated as a result.16 Aboriginal inmates are released at their statutory release date instead of the earlier date that is applied to many Canadian inmates at persistently higher levels than non-​Aboriginal inmates. Three-​quarters of those released were released directly into the community from maximum-​and medium-​security institutions, limiting their ability to benefit from a gradual release supporting successful reintegration, and fewer Aboriginal inmates were released on parole relative to non-​Aboriginal inmates.17 Finally, the trial judge found that the laws that authorize solitary confinement also caused discrimination against mentally ill and/​or mentally disabled inmates. Inmates with mental disabilities are over-​represented in solitary confinement. The Office of the Correctional Investigator collects data, accepted by the Attorney General’s witnesses, that shows that offenders who have been identified in their correctional plans as having mental health issues are more likely to have a history of solitary confinement than those identified as having no mental health issues. Offenders who have been identified in their correctional plans as having cognitive or mental ability issues are much more likely to have a history of solitary confinement than those who have been identified as having no cognitive or mental ability issues.18 Inmates in solitary confinement are twice as likely to have a history of self-​injury and to have attempted suicide, and 31% more likely to have a mental health issue.19 While the independent office of the Correctional Investigator collects data addressing people with mental health issues, the CSC does not and is therefore not able to produce its own statistics concerning this population either within or outside of solitary confinement. Given that CSC does not keep track of the number of inmates with mental disabilities in either the gen­eral inmate population or in solitary confinement, it is no wonder that the trial judge found the mental health policies in place to address medical needs to be inadequate. Without such data, the trial judge found, it is difficult, if not impossible, for CSC to conduct principled strategic planning with respect to that population.20 And the risks of harm from solitary confinement are greater for inmates with mental illness.21

15 16 17 18 19 20 21

Id., para. 468. Id., para. 484. Id., paras. 485, 487. Id., para. 493. Id., paras. 494–​95. Id., paras. 492, 503–​08, 514–​22. Id., para. 497.

Joseph J. Arvay and Alison M. Latimer  339 Given all of these findings of fact, the trial judge found that the laws infringe section 7 of the Charter, which protects the rights to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The placement of inmates in solitary confinement deprives them of their residual liberty—​it is a prison within a prison.22 It deprives them of their life because suicide is proportionally more prevalent amongst inmates in solitary confinement, and solitary confinement puts inmates at increased risk of self-​harm and suicide.23 It deprives them of their security of the person because it places all inmates at risk of the serious psychological harm detailed above, increased incidence of self-​harm and suicide, and physical harm as well.24 The court also found the limits on Section 7 rights occasioned by placement in solitary confinement to offend the principle that laws not be overbroad. Absolute isolation for indefinite and prolonged periods of time—​meaning any period in excess of fifteen days—​is not necessary to meet the laws’ objectives. The court also found these limits on Section 7 rights to offend the principle that laws be procedurally fair to the extent that: (a) the impugned laws authorize and effect the institutional head to be the judge and prosecutor of his own cause; (b) the impugned laws authorize internal review; and (c) the impugned laws authorize and effect the deprivation of inmates’ right to counsel at solitary confinement hearings and reviews. The court further declared that the impugned laws unjustifiably infringe Section 15 of the Charter, which protects the right of every individual to be equal before and under the law and to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. The infringement was made out to the extent that: (a) the impugned laws authorize and effect any period of solitary confinement for the mentally ill and/​or disabled; and (b) the impugned laws authorize and effect a procedure that results in discrimination against Aboriginal inmates.25 One of the unique features of the Canadian litigation story is the Canadian government’s repeated public commitment to reforming this outmoded, inhumane practice.26 However, that public commitment has not found voice in the 22 Id., para. 261. 23 Id., paras. 263–​74. 24 Id., paras. 247–​50, 276–​84, 307–​10. 25 Id., para. 609. 26 See, e.g., “Letter from Prime Minister Trudeau to Minister Wilson-​Raybould,” November 12, 2015, https://​pm.gc.ca/​eng/​minister-​justice-​and-​attorney-​general-​canada-​mandate-​letter-​ november-​12-​2015; Patrick White and Ian Bailey, “BC Judge Rules against Prolonged, Indefinite Solitary Confinement,” The Globe and Mail, January 18, 2018, https://​www.theglobeandmail. com/ ​ n ews/ ​ b ritish- ​ c olumbia/ ​ b c- ​ j udge- ​ r ules- ​ s olitary- ​ c onfinement- ​ l aw- ​ u nconstitutional/​ article37639987.

340  Solitary Confinement in Canada litigation or legislative positions taken by the government during the course of the litigation. Indeed, the Canadian government’s positions in the litigation have been at odds with its publicly stated desire for reforms. For example, after the case was initiated, there was a federal election. In November 2015, the new Prime Minister Trudeau issued a mandate letter to the Attorney General. He tasked the new Attorney General with conducting a review of changes in the criminal justice system and stated that outcomes of this process should include, among other things, abolishment of indefinite solitary confinement and a prohibition on placing female inmates in solitary confinement in excess of fifteen days.27 However, the Attorney General refused to admit that she intended to do so in the litigation and those reforms had not been implemented at the time of trial. There were also repeated representations made in court that legislative reforms were coming to the laws that govern solitary confinement. No such legislative reforms were enacted prior to judgment being given at trial. There had been some tinkering with the Commissioner’s directives that govern solitary confinement in Canada, none of which addressed the constitutional faults identified by the trial judge. And the only bill to have been introduced in the House of Commons fell significantly short of the constitutional requirements established in this case.28 Meanwhile, the record amassed in the case demonstrates that under the present laws, thousands of inmates for at least the last decade have been held in solitary confinement for twenty-​two to twenty-​three hours a day, with no meaningful human contact, for indefinite and prolonged periods of time, in some cases for hundreds and even thousands of days. On February 16, 2018, the Attorney General filed a notice of appeal from the judgment of the British Columbia Supreme Court to the British Columbia Court of Appeal. That appeal was heard in Vancouver on November 13–​14, 2018. Canada argued on appeal that the existing legislation was capable of being interpreted and administered in a manner that conforms to constitutional norms. Canada accepted, however, that administrative practices engaged in by the Correctional Service of Canada have violated inmates’ constitutional rights in the past and need to be modified. The appeal of this case was an unfortunate continuation of Canada’s stubborn refusal to take a position in litigation consistent with its publicly expressed desire for reform.

27 “Letter from Prime Minister Trudeau to Minister Wilson-​Raybould,” November 12, 2015, https://​pm.gc.ca/​eng/​minister-​justice-​and-​attorney-​general-​canada-​mandate-​letter. 28 Bill C-​56, An Act to Amend the Correctional and Conditional Release Act and the Abolition of Early Parole Act, 1st sess., 42nd Parl., 2017 (first reading June 19, 2017).

Joseph J. Arvay and Alison M. Latimer  341 Ultimately, the Court of Appeal of British Columbia upheld the trial judge’s order that ss. 31–​33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 unjustifiably infringe s. 7 of the Charter. Those provisions are of no force and effect because they authorize indefinite and prolonged administrative segregation in conditions that constitute solitary confinement, and authorize internal rather than external review of decisions to segregate inmates in solitary confinement. The Court also found that there had been discrimination against mentally ill and indigenous inmates, contrary to s. 15 of the Charter. The Court made declarations that Corrections has, in its implementation of the administrative segregation provisions: breached its obligation under the Act to give meaningful consideration to the health care needs of mentally ill and/​or disabled inmates before placing or confirming the placement of such inmates in segregation; and breached its obligation under the Act to ensure that inmates placed in administrative segregation are given a reasonable opportunity to retain and instruct counsel without delay and to do so in private. It remains to be seen how Canada will react. While the appeal judgement was under reserve, Parliament enacted a Bill that repeals the offending sections of the Act. According to Canada, the new Bill means that solitary confinement will not longer be used in Canadian prisons. However, in response to different proceedings conducted in Ontario where Ontario courts also held the offending sections of the Act to be unconstitutional, Canada has sought leave to appeal to the Supreme Court of Canada. That application suggests that Canada’s commitment to ending this harmful and inhumane practice is less than completely sincere. It is possible that the new Bill will amount to no more than the implementation of solitary confinement by yet another name. Canada has 60 days from the date of the appeal judgment in British Columbia to determine whether it will seek leave to appeal to the Supreme Court of Canada in this case as well. If the plaintiffs continue to be successful, as they have been in British Columbia and Ontario, a judgment from the Supreme Court of Canada giving expression to the constitutional norms that must guide corrections in its treatment of prisoners would apply across Canada.

Bibliography “Letter from Prime Minister Trudeau to Minister Wilson-​Raybould.” November 12, 2015. https://​pm.gc.ca/​eng/​minister-​justice-​and-​attorney-​general-​canada-​mandate-​letter. White, Patrick, and Ian Bailey. “BC Judge Rules against Prolonged, Indefinite Solitary Confinement.” The Globe and Mail. January 18, 2018. https://​www.theglobeandmail. com/ ​ n ews/ ​ b ritish-​ c olumbia/​ b c-​ j udge-​ r ules-​ s olitar y-​ c onfinement-​ l aw-​ unconstitutional/​article37639987.

21

“Loneliness Is a Destroyer of Humanity”1 Amy Fettig* and David C. Fathi**

On any given day, there are approximately 80,000 to 100,000 people held in solitary confinement in prisons in the United States.2 That figure does not include the thousands of men, women, and children subject to solitary confinement in local jails, juvenile detention centers, and immigration detention facilities. Our custodial institutions rely heavily and sometimes almost exclusively on isolation as a means of punishment and control. Indeed, over the course of a year, approximately 20% of all US prisoners and 18% of jail detainees spend some time in solitary confinement for punishment, protection, or institutional convenience.3 Solitary confinement is endemic in the United States, where more than two million people are held in overwhelmed, under-​resourced institutions with poorly trained staff subject to little—​if any—​meaningful oversight. Despite its routine use, solitary confinement is widely recognized as painful and difficult to endure. It is psychologically difficult for even relatively healthy individuals, and shattering for those with mental illness.4 As a result, rates of suicide and self-​harm are shockingly high for prisoners held in solitary confinement.5 * Deputy Director, National Prison Project of the American Civil Liberties Union Foundation; Director, Stop Solitary Campaign. ** Director, National Prison Project of the American Civil Liberties Union Foundation. 1 Quote from Jessie Wilson, priosoner held in solitary confinement at United States Penitentiary and Administrative Maximum Facility (ADX) in Florence, Colorado. 2 Sarah Baumgartel, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter, and Judith Resnik, “Time-​In-​Cell: The ASCA-​Liman 2014 National Survey of Administrative Segregation in Prison” (Public Law Research Paper No. 552) (New Haven, Connecticut: Yale Law School, 2015), 3. 3 US Department of Justice, Bureau of Justice Statistics, “Use of Restrictive Housing in U.S. Prisons and Jails,” 2011–​12 (October 2015), 1. 4 See, e.g., Stuart Grassian, “Psychopathological Effects of Solitary Confinement,” American Journal of Psychiatry 140, no. 11 (1983): 1450; Richard Korn, “The Effects of Confinement in the High Security Unit at Lexington,” Social Justice 15, no. 1(31) (1988):  8; S. L. Brodsky and F. R. Scogin, “Inmates in Protective Custody:  First Data on Emotional Effects,” Forensic Reports 1, no. 4 (1988):  267; Craig Haney, “Mental Health Issues in Long-​Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency 49, no. 1 (2003): 124; Holly A. Miller and Glenn R. Young, “Prison Segregation:  Administrative Detention Remedy or Mental Health Problem?,” Criminal Behaviour and Mental Health 7, no. 1 (1997): 85; Hans Toch, Mosaic of Despair: Human Breakdowns in Prison (Washington, D.C.: American Psychological Association, 1992). 5 Homer Venters et  al., “Solitary Confinement and Risk of Self-​Harm Among Jail Inmates,” American Journal Of Public Health 104, no. 3 (2014): 442–​47, http://​ajph.aphapublications.org/​doi/​ pdf/​10.2105/​AJPH.2013.301742. Amy Fettig and David C. Fathi. “Loneliness Is a Destroyer of Humanity” In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0021

344  “Loneliness Is a Destroyer of Humanity” Indeed, the extreme social isolation and environmental deprivation of solitary confinement may fundamentally alter the human brain. Neuroscientists and medical experts are increasingly raising alarms over the long-​term impacts of solitary confinement on human health and functioning.6 This chapter explores how civil society advocacy campaigns working to reform and abolish solitary confinement are interacting with recent and ongoing federal litigation. We posit that the evolution of policy, practice, litigation, and public knowledge regarding solitary confinement is pushing the law forward. Momentum for greater legal protections is growing in the courts and the combination of people power and jurisprudential development is leading to substantial new protections for prisoners.

The law must catch up By any measure, the United States is an egregious global outlier in its use of solitary confinement. One might naturally ask why the courts have not stepped in to address this human rights crisis. But US courts are limited, both doctrinally and institutionally, in their ability to address prison conditions. While the Eighth Amendment to the US Constitution prohibits “cruel and unusual punishments,” the US Supreme Court has ruled that this prohibition is violated only if prison officials act with “deliberate indifference”—​that is, they have actual knowledge of a substantial risk of serious harm, and they fail to take reasonable steps to avert that harm.7 Moreover, a federal statute passed in 1995, the Prison Litigation Reform Act (PLRA), creates a separate and unequal legal system that applies only to prisoners. The barriers and hurdles erected by the PLRA have had a devastating effect on the ability of prisoners to vindicate their rights in US courts.8 As civil rights litigators we are keenly aware of the limitations of the law, the Constitution, and the courts. For this reason, the work of the American Civil Liberties Union, and our many local, state and national partners in the effort to limit and eventually abolish solitary confinement, focuses on movement-​ building supported by public education, legislation, policy reform, culture change within the corrections field, and strategic litigation. As a result of this multi-​pronged strategy, over the past several years, momentum for reform of solitary confinement has grown significantly. In many ways, the reform movement’s 6 Carol Schaeffer, “‘Isolation Devastates the Brain’: The Neuroscience of Solitary Confinement,” Solitary Watch, May 11, 2016, http://​solitarywatch.com/​2016/​05/​11/​isolation-​devastates-​the-​brain-​ the-​neuroscience-​of-​solitary-​confinement/​. 7 Farmer v. Brennan, 511 U.S. 825 (1994). 8 See Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the United States (New York: Human Rights Watch, 2009).

Amy Fettig and David C. Fathi  345 success at capturing the attention of the media, the public, and state and national leaders is unprecedented for any campaign seeking to end inhumane prison conditions. Attention to the problem of solitary confinement has reached the highest levels of government. In a historic op-​ed in the Washington Post, President Barack Obama denounced solitary confinement as practiced in the United States:  “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”9 These are powerful words—​and likely the first time in American history that a sitting president has spoken out against inhumane prison conditions. While many might expect backpedaling in the administration of President Donald Trump, the trajectory for reform at the federal and state levels has thus far been largely unaffected. This is likely because the national reform movement is simultaneously driving systems reform, exposing the harms solitary confinement inflicts on incarcerated people, and focusing on broad-​scale culture change geared toward its ultimate abolition. Within the movement for reform, the role of litigation is fundamental to all three of these dimensions of success. But the fact that litigation is more broadly supported by an active reform movement—​ composed not just of lawyers but of advocates, faith communities and leaders, legislators, concerned citizens, and survivors of solitary confinement as well as their families—​has made all the difference.

Shifting judicial attitudes This difference is clearly illustrated when we look at the current state of the law. While the devastating effects of solitary confinement have long been known to US courts,10 until recently there has been limited success in challenging its

9 Barack Obama, “Why Me Must Rethink Solitary Confinement,” op-​ed, Washington Post, Jan. 25, 2016, https://​www.washingtonpost.com/​opinions/​barack-​obama-​why-​we-​must-​rethink-​ solitary-​confinement/​2016/​01/​25/​29a361f2-​c384-​11e5-​8965-​0607e0e265ce_​ story.html?utm_​ term=.0a49e3091724. 10 The Supreme Court first addressed solitary confinement in 1890 in a case that struck down a statute retroactively imposing solitary confinement as an ex post facto law. The Court noted the well-​ known consequences of solitary confinement as it was practiced in the early days of the United States: A considerable number of [prisoners] fell, after even a short confinement, into a semi-​ fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. In re Medley, 134 U.S. 160, 168 (1890).

346  “Loneliness Is a Destroyer of Humanity” essential feature: the deprivation of virtually all meaningful human contact. But judicial attitudes have now begun to shift in several meaningful ways.

Protecting vulnerable people One area in which the law is increasingly clear is the need to protect vulnerable populations from solitary confinement. In 1995 a federal court in California concluded that placing prisoners with serious mental illness in solitary confinement “is the mental equivalent of putting an asthmatic in a place with little air to breathe,” and therefore violates the Eighth Amendment’s prohibition on cruel and unusual punishments.11 Subsequent to Madrid, federal and state courts have repeatedly ruled that solitary confinement of persons with serious mental illness violates the Eighth Amendment. Victories in states like Massachusetts, Pennsylvania, California, Arizona, Wisconsin, and Indiana, and litigation brought against the Federal Bureau of Prisons at its Administrative Maximum Facility in Florence, Colorado (ADX), are leading to the further development of alternative approaches to the management of seriously mentally ill and cognitively disabled persons in correctional institutions. Most recently, in 2017 a federal court in Alabama declared that “it is categorically inappropriate to place prisoners with serious mental illness in segregation absent extenuating circumstances”12 and ordered the parties to formulate immediate and long-​term alternatives to isolation for this vulnerable group. There is also growing judicial recognition of the particular impact of solitary confinement on young people, with lawsuits and court rulings challenging this practice. These cases are influenced by the Supreme Court’s recent line of cases recognizing the difference between youth and adults, particularly with regard to brain development, and the consequent need to articulate distinct Constitutional standards for youth.13 Courts have granted injunctions against the use of isolation on children in New York, Tennessee, and Wisconsin.14 In New York, a federal court specifically noted the many instances in which courts have found the imposition of solitary confinement to violate the constitutional 11 Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995). 12 Braggs v. Dunn, 257 F. Supp. 3d 1171, 1247 (M.D. Ala. 2017). 13 These standards recognize that juvenile status is relevant to when a child is considered to be in custody (for Miranda purposes) (J.D.B. v. North Carolina, 564 U.S. 261 (2011)) and when a punishment is considered cruel and unusual (such as the death penalty (Roper v. Simmons, 453 U.S. 551 (2005), and life without parole (Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012)). 14 Mem. Decision & Order; V.W. et al. v. Conway et al., Civil Action No. 09:16-​01150-​DNH-​DEP (N.D.N.Y. Feb. 22, 2017); Mem. Decision & Order; J.J. v. Litscher, No. 17-​cv-​47-​jdp (W.D. Wis. July 10, 2017); Mem. Decision & Order, Doe v. Hommrich et al., Civil Action No. 3:16-​cv-​00799 (M.D. Tenn. Mar. 22, 2017).

Amy Fettig and David C. Fathi  347 rights of adults with mental illness, emphasizing the persuasive evidence submitted by the plaintiffs establishing that the risks for youth are even greater, as they share “the same increased vulnerability to long-​term, or even permanent, psychological damage.”15 These court victories for youth have led to settlements in those jurisdictions, while other jurisdictions in Washington, Ohio, and Illinois have settled youth solitary cases by agreeing to end or substantially curtail the practice. In the last few years, pregnant women have emerged as a surprising subset of the solitary confinement population—​and a vulnerable group in need of protection from the harm of isolation. In 2016 Allegheny County, Pennsylvania was sued for placing pregnant women in solitary confinement for twenty-​three or more hours per day without the opportunity to leave their cells for showers and exercise. The plaintiffs alleged that the county exposed them to a “serious risk of harm to their health and the health of their pregnancies.”16 The county settled the case, prohibiting the jail from placing pregnant women in solitary confinement housing except in rare instances in which the prisoner poses a serious and immediate risk of physical harm. Any decisions to place a pregnant woman in solitary must be reviewed by the deputy warden and approved by a medical professional. A similar settlement was also achieved for New York state prisons.17

Protecting everyone Beyond vulnerable populations, courts and litigants are increasingly scrutinizing the impact of solitary confinement on all human beings. In 2017, the US Court of Appeals for the Third Circuit recognized a “jurisprudential shift” in response to the “scientific consensus” on the harms of solitary confinement.18 In that case, Williams v. Secretary of the Pennsylvania Department of Correction, the court concluded that prisoners have a due process right “to avoid solitary confinement.”19 Similarly, the US Court of Appeals for the Seventh Circuit recently decided a case in which a prisoner had been in solitary confinement for more than ten years. His placement was reviewed every thirty days; each time the reviewer issued the same two-​sentence decision concluding that he should remain 15 Mem. Decision & Order; V.W. et al. v. Conway et al., Civil Action No. 09:16-​01150-​DNH-​DEP (N.D.N.Y. Feb. 22, 2017). 16 Class Action Complaint; Seitz et al. v. Allegheny County, 2:16-​cv-​01879-​CRE (W.D. Pa. Dec. 19, 2016), https://​www.aclupa.org/​download_​file/​view_​inline/​2943/​1055/​. 17 Stipulation for a Stay with Conditions, Peoples v. Fischer, Doc. No. 11-​CV-​2694 (SAS) (S.D.N.Y. Feb. 19, 2014), (Doc. #124) https://​www.nyclu.org/​sites/​default/​files/​releases/​Solitary_​Stipulation. pdf. 18 Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549, 572–​73 (3d Cir. 2017). 19 Id.

348  “Loneliness Is a Destroyer of Humanity” in solitary. The court noted the prisoner’s lengthy confinement in isolation and the fact that he had gone for long periods with no discipline problems, and found that he had raised significant questions whether prison administrators’ review of his placement in solitary was actually meaningful or merely pretextual.20 In a case challenging the indefinite solitary confinement of death-​sentenced prisoners in Virginia, a federal judge declared that “given the rapidly evolving information available about the potential harmful effects of solitary confinement,” the court was not bound by “decades-​old” precedents holding that prolonged isolation is not necessarily unconstitutional. The court then decided that the plaintiffs suffered irreparable injury due to their placement in solitary confinement and granted an injunction against the state’s isolation practices.21 This “jurisprudential shift” is accompanied by settlements of class action lawsuits brought to reform the overuse and abuse of solitary confinement within the US corrections system generally. In late 2015 two large jurisdictions—​ New York and California—​agreed to far-​reaching, statewide settlements mandating reforms that went well beyond exclusion of vulnerable persons from solitary confinement. In Ashker v. Brown, a lawsuit filed on behalf of hundreds of prisoners held in solitary for ten years or more in California’s euphemistically labeled Security Housing Units (SHUs), the state agreed to reforms that dramatically reduce the number of prisoners in the SHUs and prospectively limit the way SHU confinement can be used. These reforms end the state’s practice of sending prisoners to solitary based solely on allegations of gang “affiliation.” The settlement also limits time spent in the SHU; requires that prisoners who have spent more than ten years in solitary be immediately released to a general population setting; creates a secure alternative to solitary confinement; and severely limits prolonged solitary confinement and provides for significantly more out-​of-​cell time for prisoners.22 In Peoples v.  Fischer, prisoners reached an agreement with New  York state prisons, in which the state commits to reducing solitary confinement and limiting its duration, and abolishing many dehumanizing aspects of isolated confinement. In particular, the state removed more than 1,100 people from traditional solitary confinement units and moved them into rehabilitative units with common spaces and group programming, or into other less isolating disciplinary

20 Isby v. Brown, 856 F.3d 508, 525–​29 (7th Cir. 2017). 21 Porter v. Clarke, 290 F. Supp. 3d 518, 528–​29; 537–​40 (E.D. Va. 2018). The case is currently on appeal to the Fourth Circuit (Docket No. 18-​6257). 22 Center for Constitutional Rights, “Landmark Agreement Ends Indeterminate Long-​Term Solitary Confinement in California, ,” press release, September 1, 2015, http://​ccrjustice.org/​home/​ press-​center/​press-​releases/​landmark-​agreement-​ends-​indeterminate-​long-​term-​solitary.

Amy Fettig and David C. Fathi  349 units. Importantly, the agreement restricts the circumstances in which solitary can be imposed as punishment in the first place.23

Reaching the highest court and beyond The momentum of solitary confinement reform has not gone unnoticed by the US Supreme Court. On June 18, 2015 the Court issued its decision in Davis v. Ayala, a capital case addressing the exclusion of a defense attorney from part of a hearing on jury selection. The defendant had spent much of the past twenty years in solitary confinement and Justice Anthony Kennedy wrote a separate concurring opinion to address the practice. Justice Kennedy noted that long-​ standing knowledge of the danger of solitary confinement was “[t]‌oo often” and “[t]oo easily ignored,” but described a “new and growing awareness” about solitary confinement. He concluded that solitary “exacts a terrible price” and can drive prisoners “to the edge of madness, perhaps to madness itself.” He also invited a case to address these concerns directly: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-​term confinement exist, and, if so, whether a correctional system should be required to adopt them.”24 While Justice Kennedy’s retirement may diminish the influence of his concurrence in Ayala, his is not a lone voice on the Supreme Court questioning the humanity and legality of solitary confinement. In his dissent in Glossip v. Gross, a case concerning the constitutionality of Oklahoma’s lethal injection procedure, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concluded that the death penalty violates the Eighth Amendment. He based this conclusion in part on the fact that almost all death-​penalty states hold death-​sentenced prisoners in solitary confinement for more than twenty-​two hours per day. In addition to its inherently “dehumanizing” nature, Justice Breyer noted that solitary confinement is especially agonizing when a prisoner does not know whether he will actually be put to death. In these circumstances, Justice Breyer concluded that such prolonged confinement gives rise to an independent “special constitutional difficult[y]‌.”25 Justice Breyer voiced similar concerns in his dissent from a denial of a stay of execution in Ruiz v. Texas. In Ruiz, the prisoner had been on death row for

23 NYCLU, “Historic Settlement Overhauls Solitary Confinement in New York,” Dec. 16, 2015, http://​www.nyclu.org/​news/​historic-​settlement-​overhauls-​solitary-​confinement-​new-​york. 24 Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring). 25 Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting).

350  “Loneliness Is a Destroyer of Humanity” twenty-​two years, and had spent most of that time in isolation. The petition to stay his execution argued that the Eighth Amendment bars execution after such “lengthy incarceration in traumatic conditions.” Justice Breyer agreed and urged that the case presented an opportunity to give solitary confinement the constitutional scrutiny that Justice Kennedy had called for in his Ayala concurrence. Justice Breyer further emphasized that while solitary confinement “raises serious constitutional questions” on its own, twenty years of isolation on death row “must raise similar questions” with “particular intensity.”26 Most recently, Justice Breyer voiced his views on solitary confinement in Smith v. Ryan, in which the court denied review of a case involving a death-​sentenced prisoner who had spent forty years in solitary confinement on death row. Justice Breyer’s dissenting opinion questioned whether such confinement can serve any “legitimate purpose” and urged courts to “consider in an appropriate case the underlying constitutional question.”27 While none of these concurring and dissenting opinions have the force of law, they illustrate the mounting judicial scrutiny of solitary confinement created by public pressure and attention. Whether a newly reconfigured Supreme Court will rule solitary confinement unconstitutional in the near future is unknown. It is also less important than the continued popular demands that our courts, our government, our institutions, and our elected leaders reflect “our common humanity” and respect the civil and human rights of all persons. That is how we end solitary confinement.

Bibliography Baumgartel, Sarah, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter, and Judith Resnik. “Time-​In-​Cell:  The ASCA-​Liman 2014 National Survey of Administrative Segregation in Prison.” Public Law Research Paper No. 552. New Haven, Connecticut: Yale Law School, 2015. Brodsky, S. L., and F. R. Scogin. “Inmates in Protective Custody: First Data on Emotional Effects.” Forensic Reports 1, no. 4 (1988): 267–​280. Center for Constitutional Rights. “Landmark Agreement Ends Indeterminate Long-​Term Solitary Confinement in California.” Press release. Sept. 1, 2015. http://​ccrjustice.org/​home/​ press-​center/​press-​releases/​landmark-​agreement-​ends-​indeterminate-​long-​term-​solitary. Class Action Complaint, Seitz et al. v. Allegheny County, 2:16-​cv-​01879-​CRE (W.D. Pa. Dec. 19, 2016). https://​www.aclupa.org/​download_​file/​view_​inline/​2943/​1055/​. Grassian, Stuart. “Psychopathological Effects of Solitary Confinement.” American Journal of Psychiatry 140, no. 11 (1983): 1450.



26 27

Ruiz v. Texas, 137 S. Ct. 1246, 1246–​47 (2017) (Breyer, J., dissenting) (mem.). Smith v. Ryan, 137 S. Ct. 1283, 1283–​84 (2017) (Breyer, J., dissenting) (mem.).

Amy Fettig and David C. Fathi  351 Haney, Craig. “Mental Health Issues in Long-​Term Solitary and ‘Supermax’ Confinement.” Crime & Delinquency 49, no. 1 (2003): 124​. Human Rights Watch. No Equal Justice: The Prison Litigation Reform Act in the United States. New York, New York: Human Rights Watch, 2009. Korn, Richard. “The Effects of Confinement in the High Security Unit at Lexington.” Social Justice 15, no. 1(31) (1988): 8​. Miller, Holly A., and Glenn R. Young. “Prison Segregation:  Administrative Detention Remedy or Mental Health Problem?” Criminal Behaviour and Mental Health 7, no. 1 (1997): 85​  . NYCLU. “Historic Settlement Overhauls Solitary Confinement in New York.” Dec. 16, 2015. http://​www.nyclu.org/​news/​historic-​settlement-​overhauls-​solitary-​confinement-​new-​ york. Obama, Barack. “Why We Must Rethink Solitary Confinement.” Op-​ed. Washington Post. January 25, 2016. https://​www.washingtonpost.com/​opinions/​barack-​obama-​ why-​we-​must-​rethink-​solitary-​confinement/​2016/​01/​25/​29a361f2-​c384-​11e5-​8965-​ 0607e0e265ce_​story.html?utm_​term=.0a49e3091724. Schaeffer, Carol. “‘Isolation Devastates the Brain’:  The Neuroscience of Solitary Confinement.” Solitary Watch. May 11, 2016. http://​solitarywatch.com/​2016/​05/​11/​ isolation-​devastates-​the-​brain-​the-​neuroscience-​of-​solitary-​confinement/​. Toch, Hans. Mosaic of Despair:  Human Breakdowns in Prison. Washington, D.C.: American Psychological Association, 1992. US Department of Justice, Bureau of Justice Statistics. “Use of Restrictive Housing in U.S. Prisons and Jails.” October 2015. Venters, Homer, et  al. “Solitary Confinement and Risk of Self-​ Harm Among Jail Inmates.” American Journal of Public Health 104, no. 3 (2014):  442–​47. http://​ajph. aphapublications.org/​doi/​pdf/​10.2105/​AJPH.2013.301742.

22

Litigation to End Indeterminate Solitary Confinement in California The Role of Interdisciplinary and Comparative Experts Jules Lobel*

In 2012, a group of prisoners brought a class action lawsuit challenging the incarceration of hundreds of prisoners in prolonged solitary confinement of over ten years in California’s Pelican Bay State Prison as cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. That lawsuit was eventually settled in 2015 and resulted in virtually all of those prisoners being released from solitary. This chapter describes the use of interdisciplinary and comparative experts in that litigation to present a multidimensional challenge to prolonged solitary confinement as cruel and inhumane. Those experts demonstrated that the prolonged solitary confinement of prisoners at Pelican Bay caused those prisoner serious psychological harm and physical harm, deprived them of basic human social interaction, was unnecessary and counterproductive penologically, and was contrary to international norms and practices.

Solitary confinement at Pelican Bay State Prison Pelican Bay State Prison is located in a beautiful, isolated area in California close to the California–​Oregon border. It has a Security Housing Unit (SHU), where in 2011 over 1,000 prisoners were held in very isolating conditions, confined in small, eight-​by ten-​foot windowless cells for twenty-​two to twenty-​three hours a day. Phone calls with family or friends were prohibited, as were contact visits with any visitors. Prisoners left their cells only for approximately one hour a day to recreate alone in a facility with fifteen-​foot high walls and a partial grate covering the top so that they received virtually no direct sunlight. The recreation * Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School; Co-​operating Attorney and Former President of the Board, Center for Constitutional Rights. Jules Lobel. Litigation to End Indeterminate Solitary Confinement in California In: Solitary Confinement. Edited by: Jules Lobel and Peter Scharff Smith. Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190947927.003.0022

354  Litigation to End Indeterminate Solitary area, only several times larger than their cells, was devoid of anything in it, no ball or recreational equipment of any kind. While they were able to communicate with some other prisoners by shouting through the walls, social contact was obviously very limited, disembodied, and sometimes punished. The prisoners had virtually no educational or other programming, no work or vocational programs. They had not seen trees, birds, or grass for years, nor touched another human being during their time in the SHU, and many had no visitors due to the isolated location of the prison.1 In 2011, thousands of California prisoners went on a hunger strike, protesting their prolonged solitary confinement in these conditions, that attracted national and international attention.2 At the time, approximately 500 prisoners at Pelican Bay SHU had been in solitary confinement for over 10 years, 78 for more than 2 decades.3 For most of them, there was no way out. They were not placed in solitary confinement because of some serious misconduct that they had committed in prison, nor because of the heinousness of the criminal offense that they had been convicted of. Rather, they were placed in solitary because of some alleged affiliation or association with a prison gang. They need not even be an alleged gang member. Labeling an inmate a so-​called “associate”—​defined as someone who periodically associates with gang members—​sufficed for placement in the SHU.4 Tattoos, artwork, political writings, and greeting cards that allegedly had some indicia of gang involvement all sufficed for SHU placement. Prisoners were not put in solitary for a determinate term, but rather were housed there indefinitely. Only once every six years was their placement reviewed, and virtually all were perfunctorily retained in solitary. The only practical way out was to either get released from prison, die, or become an informant—​in the vernacular—​to parole, snitch, or die.5 In 2012, the Center for Constitutional Rights, Legal Services for Prisoners with Children, and a team of litigators, working with the leaders of the prisoners’ hunger strike, filed an amended complaint turning a pro se lawsuit that had been instituted by two leaders of that strike, Todd Ashker and Danny Troxell into a class action alleging that the plaintiffs’ prolonged confinement at Pelican Bay SHU constituted cruel and unusual punishment in violation of the Eighth

1 Second Amended Complaint, Ashker v.  Brown, No. 4:09 CV 05796 CW (N.D. Cal. May 31, 2012), https://​ccrjustice.org/​sites/​default/​files/​assets/​Ruiz-​Amended-​Complaint-​May-​31-​2012.pdf; see also Keramet Reiter, 23/​7, Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement (New Haven: Yale University Press, 2016). 2 See, e.g., Ian Lovett, “Hunger Strike Is Latest Challenge to California’s Prison System,” The New York Times, July 8, 2011, A16. 3 See Second Amended Complaint, Ashker v. Brown 4 Cal. Code Regs. tit. 15 § 3378(c)(4). 5 Reiter, 23/​7, Pelican Bay.

Jules Lobel  355 Amendment and also violated their right to due process.6 I was one of the attorneys for the plaintiffs. We faced a significant legal obstacle in winning our challenge. A few years after Pelican Bay first opened in 1989, a team of talented lawyers challenged solitary confinement in federal court before the very progressive Judge Thelton Henderson. Henderson held that it was unconstitutional to place seriously mentally ill prisoners in the prolonged solitary confinement of Pelican Bay, but he found no constitutional violation for the majority of prisoners who did not have serious mental illness. Henderson discounted the evidence of substantial psychological harm presented by two prominent experts—​Craig Haney and Stuart Grassian—​finding that while the conditions caused prisoners who were not mentally ill significant mental harm, that harm did not rise to the level required to set forth an Eighth Amendment violation of cruel and unusual punishment.7 While a number of courts have subsequently found the harm alleged did set forth a potential constitutional violation,8 a relatively recent unpublished US Court of Appeals for the Tenth Circuit decision followed Henderson in holding that the harm that a prisoner suffered after many years in isolation did not rise to the constitutional standard for cruel and unusual punishment.9 Thus, the first question we had to confront was how to prove that the harm wrought by prolonged solitary rose to the level required for a showing of cruel and unusual punishment. At first glance, the answer to that question ought to be obvious: To confine a human being in a small cell twenty-​two to twenty-​three hours a day for years on end with virtually no contact with other prisoners, friends, or family seems like it would drive people crazy. And so it does, for many prisoners. But the human spirit and human adaptability is such that many people are able to survive and adapt to these conditions without going mad or becoming actively suicidal, even though they suffer enormously. In fact, none of the ten named plaintiffs in the lawsuit had been driven mentally ill, although they were all suffering serious psychological harm from being kept in solitary for over a decade, which was consistent with harm reported in numerous psychological studies. Those studies of psychological harm, cited by Justice Kennedy in a concurring opinion in which he noted that “years on end of near total isolation exacts a terrible price,”10 should suffice to demonstrate the cruelty and inhumanity of locking people up in tiny cells totally isolated from others. But it hadn’t convinced Judge Henderson. 6 See Second Amended, Ashker v. Brown. 7 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). 8 See, e.g., Johnson v. Wetzel, 209 F. Supp. 3d 766 (M.D. Pa. 2016); see also id., 777 (citing other cases). 9 Silverstein v. Federal Bureau of Prisons, 559 Fed. Appx. 739 (10th Cir. 2014). 10 Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring).

356  Litigation to End Indeterminate Solitary We therefore sought to distinguish our case from the Madrid v. Gomez case in which Henderson had ruled that non-​mentally ill prisoners could be kept indefinitely in solitary confinement. First, we defined our Eighth Amendment class as prisoners who had been kept in solitary for a very long time—​over ten years—​which was much longer than the two to three years prisoners had spent at the SHU when the Madrid case was tried. While that narrowed our claim, it did encompass 500 prisoners at Pelican Bay who had been kept there longer than a decade, and focused our claim on the outrageous duration of time that people had been kept isolated. Second, we asked the psychological experts to conduct somewhat different studies than they had in Madrid. And finally, we decided to utilize the burgeoning new research in fields as diverse as neuroscience, social science, and touch to show that modern science could now demonstrate that social interaction is a basic human need—​akin to food, exercise, and sleep, which have been recognized as basic human needs by the courts. These experts supplemented the powerful testimony of our plaintiffs in depositions in which they described the terrible toll solitary confinement had taken on them. As Paul Redd put it, “It’s not to the point where you want to commit suicide . . . but sometimes, I’m at the point that I’d be wanting to write the judge and say, ‘Just give me the death penalty. Just give me the death penalty, man.’ ”11 As he said that, the powerfully built Redd started to cry. The second hurdle we had to surmount was the prison system’s argument that SHU confinement of very dangerous prisoners was necessary to keep the prison system safe and that no alternatives to such confinement existed. Courts faced with that security argument are often likely to defer to the prison officials’ rationale. Justice Kennedy articulated the likely underlying concerns of many judges when he noted that in a future challenge to prolonged solitary confinement, the “judiciary may be required to determine . . . whether alternative systems for long-​term confinement exist, and if so, whether a correctional system should be required to adopt them.”12 We developed a two-​pronged attack on the state’s security argument, both prongs of which involved the use of prison management experts. These experts would argue that keeping hundreds of prisoners at Pelican Bay SHU for years simply because of their gang affiliation was penologically unnecessary and failed to comport with principles of good prison management. Second, even as to the relatively few prisoners who arguably were extremely dangerous, these experts would testify that alternative models of control were available that would

11 Erica Goode, “Solitary Confinement, Punished for Life,” The New York Times, August 5, 2015. See also video of Redd and other plaintiffs’ testimony at https://​ccrjustice.org/​home/​get-​involved/​ tools-​resources/​videos/​after-​decades-​solitary-​they-​joined-​forces-​here-​s-​what. 12 Davis v. Ayala, 135 S. Ct. 2187.

Jules Lobel  357 separate dangerous prisoners from the general prison population, but not impose total social isolation on them. Separation, not isolation was our alternative system in response to Justice Kennedy’s question. Finally, we sought to show that the prolonged solitary confinement imposed by California was contrary to international norms and practices that were moving away from solitary confinement, and that would prohibit the types of practices imposed by California. California’s prison practices of indeterminate solitary for decades based solely on a prisoner’s gang status was an outlier, not only in the United States, but the world. While unfortunately international treaty provisions and customary international law are not usually directly applicable in US courts, the Supreme Court had previously relied on international law and practice as “instructive for its interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishments.”13

Experts on harm and social connection as a basic human need Our two psychological experts—​Dr. Terry Kupers and Professor Craig Haney—​ had to confront the difficulty of showing sufficient psychological harm to the prisoners to convince a judge that such harm rose to the level of cruel and unusual punishment. It was relatively easy to show that the prisoners were psychologically damaged from years in solitary. They suffered from various psychological symptoms—​depression, lack of concentration, faltering memory, anger, paranoia, and the like. But Haney had presented those symptoms to Judge Henderson in a study of the prisoners held at Pelican Bay two to three years after it opened, and had failed to convince Henderson. Henderson and some other judges have accepted that the prisoners suffer various psychological problems, but they respond, don’t many other prisoners? So we developed an expert strategy to demonstrate the severity of the harm. Key to doing so was focusing on the fact that our clients had been in solitary for many years, not just a few. We had defined the class of prisoners whose Eighth Amendment rights were being violated as those who had been confined in the Pelican Bay SHU for over ten years. Haney then conducted two

13 Roper v. Simmons, 543 U.S. 551, 576 (2005) (“Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’ ”).

358  Litigation to End Indeterminate Solitary novel experiments. First, he discovered that seven prisoners he had interviewed back in 1992–​1993 in conjunction with the Madrid case before Henderson were remarkably—​and outrageously—​still being held at the Pelican Bay SHU. Haney had his old notes on their interviews twenty years earlier and went back to Pelican Bay and re-​interviewed them. Second, Haney undertook an experiment that Henderson had pointedly noted had not been done in the Madrid case. He interviewed randomly selected SHU prisoners who had been held there more than ten years, but also interviewed randomly selected prisoners in the gen­eral population (GP) at Pelican Bay who had been in prison for over ten years. For Pelican Bay had two large and separated prisons: a maximum security GP prison and the SHU. The prisoners held in the two prisons were roughly similar in that both had generally been convicted of serious crimes and were from poor social-​ economic backgrounds. While not perfect from a scientific perspective—​since there could always be factors that might account for different psychological outcomes—​it seemed like a reasonable comparison.14 We expected Haney to find that the psychological symptoms in the group of prisoners he had interviewed twenty years before had markedly worsened, and that the SHU prisoners were considerably psychologically worse off than the comparison GP group. As often happens in science, things did not go quite as we hoped. Haney found that the symptoms suffered by the seven prisoners who he had interviewed when Pelican Bay SHU first opened had not dramatically worsened in the ensuing twenty years. But neither had those prisoners adapted to their situation in a manner to remove the pain they continued to experience for years on end. But Haney also noticed something else that seemed critical. The seven had lost almost all of their connections to the outside world, and moreover they didn’t anymore seem interested in social connections. In the words of the philosopher Lisa Guenther, they were suffering not from a physical death, but a social death.15 For Haney, his findings had two profound implications. First, while the prisoners had adapted to their draconian conditions, their adaptation—​while it allowed them to survive and not go mad—​was itself pathological. As Haney noted, many of these prisoners coped with the painful, asocial nature of their isolated existence by paradoxically creating even more distance between themselves and others. For some, the absence of others became so painful that they convinced themselves that they did not need social contact of any kind—​that people are a “nuisance,” after all and the less contact the better. As a result, they socially 14 Redacted Expert Report of Craig Haney, Ashker v. Brown, Case No. 4:09 CV 05796 CW (N.D. Cal. March 13, 2015),https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Redacted_​Haney%20 Expert%20Report.pdf. 15 Lisa Guenther, Solitary Confinement: Social Death and Its Afterlives (Minneapolis: University of Minnesota Press, 2013).

Jules Lobel  359 withdrew further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary confinement and its attendant procedures require. In short, they became alienated from others, anxious in their presence, and profoundly asocial. Second, the adaption allowed them to cope with their situation, but it did not alleviate their symptoms, nor their pain. Their pain continued unabated, not for months or years, but for decades.16 We thought Haney’s findings, particularly his point about how the prisoners pathologically adapted by embracing a sort of social death, enormously helpful in explaining the conundrum of how people could survive so many years in solitary without going mad, yet still be suffering enormously. For to stamp out a person’s connection to others and interest in others is to take away a basic aspect of humanity. Haney’s second study also proved very helpful. Haney interviewed randomly selected SHU prisoners and prisoners in the GP maximum security prisoners and used a quantitative method to measure the severity of a list of symptoms that the SHU and GP prisoners might suffer from. His report found that SHU prisoners were affected more severely than the GP prisoners to a degree that was scientifically significant. Haney’s studies at Pelican Bay remain the only longitudinal and comparative study of prisoners in extremely prolonged solitary—​in this case of over a decade. Nobody else has studied the changes occasioned by solitary in the same prisoners over time, nor compared the mental health of prisoners held for more than ten years in isolation to similar prisoners held in restrictive maximum security conditions. Indeed, there is no other study of a randomly selected group of prisoners held in solitary for a very, very long period of time, in Haney’s study over ten years. When the Supreme Court eventually rules that such prolonged solitary confinement is unconstitutional, as I believe it will, Haney’s Pelican Bay studies will undoubtedly prove useful to the Court. Meanwhile, our psychiatrist expert, Dr. Terry Kupers, was given a different assignment. He first interviewed our ten named plaintiffs, discovering unremarkably that they were suffering from the panoply of psychological symptoms that the literature on solitary confinement suggested we would find. None of our ten plaintiffs, however, were mentally ill or suicidal, nor were almost all of the class members that Haney had interviewed. If mental illness or suicidality of the prisoners were to be the touchstone of our claim, we would definitely lose. But that was not our plaintiffs’ claim. None alleged that he was mentally ill or 16 Tommy Silverstein, a prisoner held in solitary confinement for decades in the federal system, described his continued pain as an “endless toothache, or “the nerve wracking sound of water dripping from a leaky faucet while you are trying to sleep.” See Jules Lobel, “Prolonged Solitary Confinement and the Constitution,” University of Pennsylvania Journal of Constitutional Law 11 (2008): 115, 116.

360  Litigation to End Indeterminate Solitary suicidal, but they all asserted that they were suffering significant psychological harm. Kupers backed up that claim with his expertise. But Kupers also interviewed a number of people who had been in the Pelican Bay SHU and had been released from the SHU—​either freed from prison altogether, or at least released into the GP at some other prison. Kupers interviewed sixteen of them. What he discovered is that the harm that their SHU experience had wrought did not dissipate upon getting out. The harm was permanent, or at least long-​lasting. He found that all of these prisoners had a constellation of symptoms which Kupers termed the Post-​SHU Syndrome—​playing off Dr. Grassian’s finding of a SHU syndrome for people confined in the SHU. Kupers finding was significant because it indicated that the harm is serious in that it is not temporary, but can affect people long-​term.17 We thus felt we had developed a good case for serious psychological harm. But we were worried that the psychological evidence might still not be enough to prevail in court. Indeed, Judge Henderson had held that such evidence set forth harm, but not enough to rise to the level of a human rights violation. So we sought other scientific evidence. At the suggestion of our lead plaintiff, Todd Ashker, who had read a book titled Social: Why Our Brains Are Wired to Connect, we contacted the book’s author, Mathew Lieberman, a professor at UCLA and the director of the Social Cognitive Neuroscience Laboratory at that school. He agreed to draft an expert report for our case, in which he used his and other neuroscientists’ work to opine that modern science clearly establishes that there is a basic human need for social connection, which is somewhat akin to the need for sleep and exercise. While humans will not die immediately from a lack of social interaction, “a lack of social connection will likely produce a wide array of negative outcomes for an individual’s mental and physical well being before long.” Lieberman also more specifically concluded based on his research and others that when people are deprived of social interaction, they experience a form of social pain, and “this pain produces neural activity consistent with it being a form of pain” (emphasis added). Indeed, his neuroscience research and the works of others provide compelling evidence that the social pain of isolation “involves the same neural and neurochemical processes invoked during physical pain.”18 One reason that conclusion was of critical importance is that American 17 Redacted Report of Terry Kupers, Ashker v. Brown, https://​ccrjustice.org/​sites/​default/​files/​ attach/​2015/​07/​Redacted_​Kupers%20Expert%20Report.pdf. Kupers’s study was supported by a study, done by the Stanford University Human Rights in Trauma Mental Health Lab, of numerous prisoners who were released from ten years or more in solitary confinement and placed in general population in prison pursuant to the settlement of the Ashker case, which found that they still suffered numerous symptoms stemming from their time in solitary. “Mental Health Consequences Following Release from Long-​Term Solitary Confinement in California,” https://​ccrjustice.org/​sites/​ default/​files/​attach/​2018/​04/​CCR_​StanfordLab-​SHUReport.pdf. 18 Expert Report of Mathew D. Lieberman, Ashker v. Brown, 5, 6–​10, https://​ccrjustice.org/​sites/​ default/​files/​attach/​2015/​07/​Lieberman%20Expert%20Report.pdf.

Jules Lobel  361 law often makes a distinction between physical and mental pain, providing more protection and remedies for the former.19 The distinction that American tort law makes between mental and physical harm also led us to look for an expert witness associated with the large body of recent studies demonstrating that loneliness or social isolation is extremely medically harmful for people, particularly the elderly, significantly increasing the risk of illness or early mortality.20 Indeed the research demonstrates that loneliness or social isolation can be a greater risk factor for early death than obesity or smoking, and that feeling lonely can have physiological effects. Louise Hawkley, a researcher at the University of Chicago who had conducted some of the important research in this area, agreed to be an expert witness. Her report, upon which her contribution to this book is based, started out by pointing out that numerous studies have demonstrated that fewer social contacts or feelings of loneliness increases the risk of mortality. Her research and others have demonstrated that feelings of loneliness can be correlated with increased hypertension and elevated blood pressure levels, which damages blood vessels and the heart, thereby increasing the risk of serious cardiovascular health problems such as heart attacks.21 However, no research had been done with prisoners, certainly not with prisoners kept in solitary confinement. Yet Haney’s research on our Pelican Bay SHU class members kept in solitary for over ten years used the same UCLA loneliness research survey to determine feelings of loneliness used by numerous studies of the effects of isolation generally. Haney’s survey had shown the class members at Pelican Bay to be off the charts in terms of their degree of loneliness. His conclusion was that these people experienced loneliness in a more extreme fashion than any other group heretofore studied. We discovered that California kept medical records and statistics for prisoners housed in the Pelican Bay SHU and the Pelican Bay GP. We were able to obtain health records for such chronic illnesses as hypertension or diabetes for these prisoners and provided that data to Hawkley. Hawkley’s conclusion, which is set forth in more detail in her chapter in this book, was that the data “clearly shows that hypertension is more prevalent in the highly socially isolated long-​term SHU prisoners than in long-​term prisoners held in only slightly less restricted

19 See Jules Lobel and Huda Akil, “Law and Neuroscience: The Case of Solitary Confinement,” Daedalus 147, no. 4 (Fall 2018): 64–​65, 66, for a detailed description of the difference between mental and physical pain in tort law and US law on prisoner lawsuits. 20 See, e.g., J. Holt-​Lunstad, T. B. Smith, and J. B. Layton, “Social Relationships and Mortality Risk: A Meta-​Analytic Review” PLOS Medicine 7, no. 7 (2010): e1000316; J. S. House, K. R. Landis, and D. Umberson, “Social Relationships and Health,” Science 241 (1988): 540. 21 Expert Report of Louise C. Hawkley, Ashker v. Brown, 4–​7, https://​ccrjustice.org/​sites/​default/​ files/​attach/​2015/​07/​Hawkley%20Expert%20Report.pdf.

362  Litigation to End Indeterminate Solitary general prison population even after adjusting for the age difference between the two populations.” Hawkley also found that hypertension was even more prevalent in the SHU population after adjusting for general health status, “and exceeded the magnitude of risk associated with overweight, physical inactivity and smoking.”22 Finally, Professor Dacher Keltner, a chaired professor at the University of California Berkeley, and director of Berkeley’s Social Interaction Lab, wrote a report on the increasingly robust scientific research on the importance of touch to human beings.23 At Pelican Bay, our clients had not been able to touch their friends or loved ones for many years, because contact visits with family and friends, and any group activities, were prohibited. Professor Keltner started by emphasizing that “from the first moment of life, touch—​the most well-​developed sensory modality at birth—​is a form of communication that enables individuals to relate to one another, form social ties, and integrate into groups and communities.” Scientific research demonstrated that “human relations, health, and well being depend critically upon the quality of touch an individual experiences in everyday social interactions.” Keltner opined that “touch is a fundamental aspect of social interaction” which is a basic human need.24 Citing numerous recent, peer-​reviewed studies, including his own, Keltner’s report explained the biological, neurological, and psychological research demonstrating that “through influences upon the nervous system, touch soothes during stress, signals safety and is a trigger of social cooperation.” Touch, “as a direct physical manifestation of social support, promotes health and well being.” While there have been no studies of prisoners in long-​term isolation, Keltner pointed out that in other institutions where touch has been stripped away, such as in some nursing homes, the experience of elderly residents is disorienting, isolating, and damaging. Health practitioners have recognized that this touch deprivation contributes to the elderly’s mental and physical health problems.25 The deprivation of human touch for years would clearly cause physical harm to humans and present risks to their health.

22 Id., 14. 23 Expert Report of Dr.  Dachner Keltner, Ashker v.  Brown, https://​ccrjustice.org/​sites/​default/​ files/​attach/​2015/​07/​Keltner%20Expert%20Report.pdf. 24 Id., 3. 25 Id.,  12–​13.

Jules Lobel  363

Penological experts on why prolonged isolation was unnecessary We also retained four prominent experts in prison management to contradict California’s Department of Corrections and Rehabilitation (CDCR)’s position that the indeterminate, prolonged solitary confinement of suspected gang members or associates was necessary to keep its prisons safe, and that no alternatives to this draconian isolation existed. Emmitt Sparkman is a correctional administrator in Mississippi with over thirty-​nine years experience working in line and supervisory positions in Texas, Kentucky, and Mississippi. He had been the superintendent of the Mississippi supermax prison and thereafter had risen to become the deputy commissioner of institutions for the Mississippi Department of Corrections, a position he held for over ten years. As deputy commissioner, he supervised and oversaw the reforms to the Mississippi supermax resulting from a federal lawsuit. Sparkman reviewed numerous documents supplied by CDCR and also toured Pelican Bay. He concluded that the conditions of confinement for prisoners in the SHU were “harsh and result in extreme isolation and are counterproductive and unnecessary to provide a safe and secure corrections’ system.”26 Most importantly, Sparkman’s experience in Mississippi and other correctional systems led him to conclude that CDCR’s placement in the SHU for prolonged periods of time of individuals who had not engaged in assaultive or seriously disruptive activities in prison, but were placed there only because of their association with a gang, “is not sound penologically and results in placement and retention of offenders in segregation who could be safely managed in a less restrictive environment.”27 Sparkman concluded that SHU placement based solely on gang membership or association was inappropriate. Rather, only those prisoners with violent behavior who are assaultive or cause serious disruptive activity while in prisons, who seriously injure others, and/​or cause major property damage, continuously possess weapons or escape or attempt to escape from high security prisons should be placed in a SHU for more than sixty days.28 Placement in a SHU should only be instituted after a due process disciplinary hearing and finding of guilt for one of these serious offenses. Moreover, even for those prisoners who Sparkman agreed could be placed in SHU, he believed that there should be a streamlined Step Down Program so that the prisoner could earn better conditions and improved privileges through

26 Expert Report of Emmit L. Sparkman, Ashker v. Brown, 15–​16, https://​ccrjustice.org/​siteats/​ default/​files/​attach/​2015/​07/​Sparkman%20Expert%20Report.pdf. 27 Id.,  17–​19. 28 Id., 20–​21,  3–​31.

364  Litigation to End Indeterminate Solitary positive behavior and release to the GP within a few years. For someone whose record was too terrible to release straight to GP, Sparkman concluded that even that person should have the opportunity to attain GP conditions of confinement (with normal out-​of-​cell time and the privileges of GP), in an administrative segregation environment.29 Therefore, even for a prisoner who required a segregated environment, Sparkman recommended providing freer, less isolating conditions with more social contact within that segregated environment. Sparkman’s conclusions were supported by the expert report of Dr.  James Austin, the leading US expert on prison classification systems. Austin had worked with the states of Ohio, Mississippi, Colorado, Oklahoma, Kentucky, Maryland, Illinois, and Indiana and the Federal Bureau of Prisons to evaluate these systems’ use of administrative segregation. Dr. Austin concluded that the prisoner class at Pelican Bay “has been placed in SHU status for an excessive period of time based on incorrect or inappropriate classification criteria and should be released to an appropriate General Population housing unit or a protective custody unit.”30 Austin claimed that CDCR’s “status based” system, in which anyone alleged to be a member or associate of a prison gang could be placed in a SHU for years regardless of the prisoner’s actual behavior “is disfavored in prison management because it results in ‘false positives,’ wrongly identifying inmates as high risk even though their behavioral history proves they do not engage in violent behavior and are not high risk.”31 Austin also pointed out that CDCR had never conducted any “validation test” which would determine whether its process and criteria for placing prisoners in the SHU accurately identified prisoners who required SHU confinement. “Absent any test of CDCR’s gang identification process, one simply does not know if it works and it therefore does not qualify as an evidence-​based practice.”32 Austin actually did study whether any correlation between gang affiliation and violent or disruptive acts existed in CDCR’s system, and concluded that it did not. The vast majority of inmates identified as prison or street gang members by CDCR had not received any rules violations reports that would indicate significant misconduct. Moreover, Austin also studied the records of the named plaintiffs and found that they had “an exceptionally low rate of disciplinary infractions for a ten year period for a high security population.” And the vast majority of those violations were minor, such as unauthorized talking. For Austin, “A system that places such inmates in SHU for over a decade defies all 29 Id., 19–​20, 21. 30 Expert Report of Dr. James Austin, PhD, Ashker v. Brown, 2–​3, 8, https://​ccrjustice.org/​sites/​ default/​files/​attach/​2015/​07/​Redacted_​Austin%20Expert%20Report.pdf. 31 Id. 32 Id., 12.

Jules Lobel  365 logic.”33 He concluded that “the inmate classification and disciplinary conduct data all suggest that these inmates, in general, do not require SHU placement.” Indeed, Austin’s review of forty-​one plaintiff class members found that over 70% were assessed by the CDCR as “low risk,” a designation seemingly in contradiction to their continued placement in the SHU.34 Austin also discovered that CDCR apparently never examined whether or not SHU placement of gang-​affiliated inmates reduces violence throughout its prison system. When Austin conducted that review himself, he found that the increased use of SHU had not produced lower assault rates in CDCR prisons, but rather the rate of assault increased. For Austin, the reason for this trend was clear, “CDCR is incorrectly identifying high risk inmates who require placement in the SHU and the periods of SHU confinement are excessive and non-​productive.”35 Austin pointed out that he “knew of no state or federal prison system [in the United States] that places and retains so many inmates in long-​term segregation solely due to their gang affiliation and activities.” Moreover, CDCR’s practice of only reviewing prisoners in the SHU every six years, “is simply unheard of in other state and federal prison systems.”36 While Austin and Sparkman powerfully concluded, based on considerable experience with correctional systems, that CDCR’s system of incarcerating gang members and associates in the SHU was not sound correctional policy, and was unnecessary and counterproductive penologically, that still left a basic dilemma as to whether prisoners who were assaultive and dangerous could kept in social isolation indeterminately. We still wanted to show that there were alternatives to this form of isolation, even for those prisoners who had committed serious misconduct and were dangerous. The Ohio system provided a possible alternative. Ohio has kept a small group of four prisoners who it considers its most dangerous prisoners in its supermax for over fifteen years, and has made it clear that it plans to keep them there indefinitely. Such permanent confinement in solitary should violate both the Eighth Amendment and Fourteenth Amendment Due Process Clause, since even the most dangerous prisoner should have a meaningful pathway out of segregation if he or she demonstrates good behavior. Nevertheless, while a legal challenge to the Ohio supermax did result in the vast majority of the prisoners confined there being released to the GP, the district court rejected the challenge by these four men claiming that their permanent incarceration in solitary at the supermax violated due process.37 33 Id., 15; see generally 14–​20. 34 Id.,  19–​20. 35 Id., 20. 36 Id., 24. 37 See Austin v. Wilkinson, 502 F. Supp. 2d 660, 673–​74 (N.D. Ohio 2006), and Wilkinson v. Austin, 545 U.S. 209 (2005).

366  Litigation to End Indeterminate Solitary Left with no hope of a legal remedy, in 2011 these four men went on hunger strike. Ohio responded by keeping them in the supermax, but substantially increasing their social contact, affording them small group recreation with one other prisoner, numerous contact visits with friends and family and daily telephone calls. Terry Collins, the former director of the Ohio Department of Corrections when these reforms were instituted, agreed to be an expert on Ohio’s alternative to a complete denial of social interaction, even for the most dangerous prisoners, if they were to be kept in the supermax for a very prolonged and indeterminate period. His report demonstrated that it was possible to develop alternatives to social isolation, even for those prisoners who prison officials believed ought to be kept in segregated housing for a prolonged period of time.38 Our last expert penological witness was Andrew Coyle, who has also authored a chapter for this book. Coyle is a distinguished, articulate former prison governor (warden) in Scotland and England of maximum security prisons. After twenty-​four years as a prison governor, Coyle became a full time academic as Professor of Prison Studies and the director of the International Center for Prison Studies at the School of Law in King’s College of the University of London. Coyle has served as a consultant and advisor on prison management and reform of prison systems to numerous governments in all regions of the world, was an advisor on prison issues to the UK Secretary of State for Home Affairs and international bodies, and has published extensively on prison management issues. Coyle agreed to be an expert on a pro bono basis. Coyle propounded some basic principles of good prison management with respect to high security prisoners. The first was that the number of prisoners held under high-​security conditions should be kept to a minimum for both humane and security reasons, which require an individual assessment of risk. To Coyle, prison systems that keep a smaller number of prisoners in high-​security conditions are likely to be safer for both prisoners and staff because staff will be able to ensure that they provide close supervision and contact with those few prisoners who really need such supervision. Coyle gave as an example the Turkish prison system in the early 2000s where all prisoners convicted of terrorist crimes—​under a broad definition of terrorism—​had automatically been classified as very high-​risk prisoners requiring close supervision. That led to 20% of all prisoners in Turkey being kept in segregated housing, which had “two immediate operational consequences,” according to Coyle. First, it was difficult to identify those prisoners “who did indeed need very close supervision,” and second, it drew those on the periphery of the group closer to it when it might 38 Expert Report of Terry J. Collins, Ashker v. Brown, 5–​6, https://​ccrjustice.org/​sites/​default/​files/​ attach/​2015/​07/​Collins%20Expert%20Report.pdf.

Jules Lobel  367 have been possible to loosen their ties to the group.39 So too, Coyle criticized CDCR for employing a generic assessment rather than an individualized analysis to place prisoners in the SHU, leading to similar problems that he observed in the past in Turkish prisons. More importantly however, Coyle provided an alternative, positive model for housing very dangerous prisoners. Such prisoners could be held “in small units of up to ten prisoners, based on the premise that it is possible to provide a positive regime for maximum security prisoners by confining them in small groups away from the general prison population rather than in individual segregation. The principle on which these units operate is that it should be possible for a professionally trained staff to develop a positive and active regime for even the most dangerous prisoners. The intention is that, within a secure perimeter, prisoners should be able to move relatively freely within the units and to have a normal prison routine. In such an environment, prisoners will only be placed in isolation when all else fails and then only for a short period of time.”40 Coyle stated that the Scottish Prison system operates such a system of small units. Similarly, England and Wales have created close supervision units to house dangerous prisoners with the aim “to remove the most significantly disruptive, challenging, and dangerous prisoners from ordinary location, and manage them within small and highly supervised units.” In these units, “provision is made for family and legal visits (which are usually direct contact visits), telephone calls to family and friends, access to education, gym facilities, payment for work, association with other prisoners and in-​cell activities.”41 As Coyle noted, these types of privileges and social contact were not provided for prisoners at the Pelican Bay SHU. Coyle and Collins thus helped us answer the question that Justice Kennedy posed in his concurring opinion in Ayala:  There are alternative models for housing dangerous prisoners that separate them from the general population but do provide for social contact. Coyle ended his expert report with a damning condemnation of the situation at the Pelican Bay SHU from a prison management perspective: The fact that so many individuals have been held for so many years in conditions which fail to meet basic standards of humanity betrays an absence of professional prison management . . . In my professional experience, when dealing with the most problematic prisoners there is an onus on prison management to

39 Expert Report of Andrew Coyle, Ashker v. Brownet al., 14–​15, https://​ccrjustice.org/​sites/​ default/​files/​attach/​2015/​07/​Coyle%20Expert%20Report.pdf. 40 Id.,  17–​18. 41 Id.,  10–​12.

368  Litigation to End Indeterminate Solitary create and develop an environment in which such prisoners will over the course of time be encouraged to begin the process of “correction” and “rehabilitation.” There is no evidence of such an approach in the Pelican Bay Security Housing Unit.42

Prolonged solitary confinement and international law Coyle’s expert report also served another function—​to tie the constitutional violations at Pelican Bay to a broader international human rights perspective. Coyle set forth the various international treaty provisions that govern the treatment of prisoners, and stated definitively that the “treatment of prisoners [at Pelican Bay SHU] over such a long period of time as described in the official documents with which I have been provided falls far short of the obligation of Article 10 of the International Covenant of Civil and Political Rights.” That treaty, ratified by the United States, requires that all persons deprived of their liberty “shall be treated with humanity and respect for the inherent dignity of the human person.” In addition, for Coyle: [the] international and regional standards relevant to such [solitary] confinement can best be summarized in the terms of Principle XXII of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, “Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time.” Solitary confinement in Pelican Bay is clearly not a “disposition of last resort” nor is it used “for a strictly limited time.” It therefore fails to meet international and regional standards.43

Our main expert witness with respect to CDCR’s violation of international law standards in its operation of the Pelican Bay SHU was Juan Mendez, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Punishment and a professor of law at American University in Washington, DC. In his role as Rapporteur, Mendez visited numerous countries and observed their prison regimes and advised them on how to meet their obligations to prohibit torture and cruel, inhuman, or degrading treatment (CIDT). Mendez also drafted an important report to the UN General Assembly on the use of solitary confinement and the ways in which, depending on circumstances, it may constitute either torture or CIDT.44 Mendez had made a request to the United States, 42 Id., 21. 43 Id., 10. 44 Expert Report of Juan Mendez, Ashker v. Governor of California, 2–​3, https://​ccrjustice.org/​ sites/​default/​files/​attach/​2015/​07/​Mendez%20Expert%20Report.pdf.

Jules Lobel  369 as Special Rapporteur, to visit Pelican Bay SHU but it had not been granted. So we invited him to visit as plaintiffs’ expert witness and he accepted and went to Pelican Bay. Mendez described in detail the state of international treaty and customary law on solitary confinement. Mendez also drew on his experience visiting numerous prisons in many nations around the world, many of which use some form of solitary confinement. Yet what Mendez observed at Pelican Bay was “exceptional in terms of the extraordinary length of time that these inmates have spent in solitary confinement,” and having substantial numbers of prisoners held in these conditions for over a decade solely “because of their status as an active gang member or affiliate without having committed either a violent crime or having had a very violent history.” Mendez stated that “I know of no other country that keeps substantial numbers of prisoners in decades-​long solitary confinement simply because of membership in or affiliation with groups such as gangs.”45 Mendez’s conclusion as to CDCR’s violation of international law norms at Pelican Bay was unequivocal: [I]‌t is my considered view that the conditions of confinement at the SHU of Pelican Bay prison amount to torture or cruel, in humanor degrading treatment or punishment according to customary international law rules codified in the Convention Against Torture. Because of their duration, purpose and imposition without sufficient due process or right to a remedy, and the insufficiency of mitigating amenities, these conditions of isolation are contrary to the practices of civilized nations. In particular, very few other nations use solitary confinement of this indefinite or prolonged duration, and those that do have been condemned by international organs of human rights protection. No other country uses prolonged or indefinite solitary confinement as a prison administration measure without regard to the behavior of the inmate or without a meaningful opportunity to challenge it.46

Victory It is impossible to know definitively the impact these reports had on defendants. However, the timeline is revealing: Plaintiffs served the almost 1,000 pages of expert reports on the defendants in March 2015. By May 2015, the defendants, who to that point had steadfastly refused to engage the plaintiffs in their attempts to negotiate an end to their indeterminate prolonged solitary confinement, signaled

45

46

Id.,  19–​20. Id., 26.

370  Litigation to End Indeterminate Solitary to plaintiffs’ counsel that they now sought a negotiated settlement. Three months later, after much back and forth between the plaintiffs, their counsel, and the defendants, a settlement was reached that ended the indeterminate solitary confinement for gang members or affiliates.47 Within a year, about 1,600 prisoners were released from the Pelican Bay SHU and other SHUs in California. In the future, generally only prisoners who had been convicted of committing serious misconduct while in prison would be sent to the SHU, and then only to serve a determinate disciplinary sentence commensurate with the seriousness of the misconduct. We hadn’t abolished long-​term solitary in California, but we had significantly limited it.

Bibliography Second Amended Complaint. Ashker v. Brown. No. 4:09 CV 05796 CW (N.D. Cal. August 31, 2015). https://​ccrjustice.org/​sites/​default/​files/​assets/​Ruiz-​Amended-​Complaint-​ May-​31-​2012.pdf. Expert Report of Dr. James Austin, PhD. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Redacted_​Austin%20Expert%20Report.pdf. Expert Report of Terry J. Collins. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​ files/​attach/​2015/​07/​Collins%20Expert%20Report.pdf. Expert Report of Andrew Coyle, PhD. Ashker v.  Governor of the State of California. https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Coyle%20Expert%20Report. pdf. Expert Report of Louise C. Hawkley. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​ files/​attach/​2015/​07/​Hawkley%20Expert%20Report.pdf. Expert Report of Dr. Dachner Keltner. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Keltner%20Expert%20Report.pdf. Expert Report of Mathew D. Lieberman. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Lieberman%20Expert%20Report.pdf. Expert Report of Juan E. Méndez. Ashker v. Governor of the State of California. https://​ ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Mendez%20Expert%20Report.pdf. Expert Report of Emmit L. Sparkman. Ashker v. Brown. https://​ccrjustice.org/​siteats/​default/​files/​attach/​2015/​07/​Sparkman%20Expert%20Report.pdf. Goode, Erica. “Solitary Confinement, Punished for Life.” The New York Times, August 5, 2015. Guenther, Lisa. Solitary Confinement:  Social Death and Its Afterlives. Minneapolis: University of Minnesota Press, 2013. Holt-​Lunstad, J., T. B. Smith, and J. B. Layton. “Social Relationships and Mortality Risk: A Meta-​Analytic Review.” PLoS Med 7, no. 7 (2010): 241. House, J. S., Landis, K. R., and Umberson, D. “Social Relationships and Health,” Science 241 (1988): 540–​545.

47 See Settlement Agreement, Ashker v. Governor of the State of California, https://​ccrjustice.org/​ sites/​default/​files/​attach/​2015/​09/​2015-​09-​01-​ashker-​Settlement_​Agreement.pdf.

Jules Lobel  371 Lobel, Jules. “Prolonged Solitary Confinement and the Constitution.” University of Pennsylvania Journal of Constitutional Law 11 (2008): 115–​138. Lobel, Jules, and Huda Akil. “Law and Neuroscience: The Case of Solitary Confinement.” Daedalus 147, no. 4 (Fall 2018): 61–​75. Lovett, Ian. “Hunger Strike Is Latest Challenge to California’s Prison System.” The New York Times, July 8, 2011. “Mental Health Consequences Following Release From Long-​Term Solitary Confine­ ment in California.” https://​ccrjustice.org/​sites/​default/​files/​attach/​2018/​04/​CCR_​ StanfordLab-​SHUReport.pdf. Redacted Expert Report of Craig Haney. Ashker v.  Brown. Case No. 4:09 CV 05796 CW (N.D. Cal.). https://​ccrjustice.org/​sites/​default/​files/​attach/​2015/​07/​Redacted_​ Haney%20Expert%20Report.pdf. Redacted Report of Terry Kupers. Ashker v. Brown. https://​ccrjustice.org/​sites/​default/​ files/​attach/​2015/​07/​Redacted_​Kupers%20Expert%20Report.pdf. Reiter, Keramet. 23/​7, Pelican Bay Prison and the Rise of Long-​Term Solitary Confinement. New Haven: Yale University Press, 2016. Settlement Agreement. Ashker v. Governor of the State of California. https://​ccrjustice. org/​sites/​default/​files/​attach/​2015/​09/​2015-​09-​01-​ashker-​Settlement_​Agreement.pdf.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Figures are indicated by an italic f following the page number. additional punishment  36, 52 administration  267, 298, 345 Administrative Segregation (AdSeg)  62–​63, 94, 105, 107, 243–​44, 246–​47, 251, 263, 267, 311, 313, 314, 316, 317–​20, 321, 325, 326–​27, 330–​33,  335–​37 Administrative Segregation Unit  263, 267, 314–​16, 318, 326–​27, 331 allostatic load  207–​8, 212 American Correctional Association  103 animal studies  160f, 160–​61, 221, 226, 227, 229, 230, 235, 236 effects of isolation  12–​13, 25, 37–​38, 56, 130, 134, 141, 145–​46, 153–​54, 160–​61, 185, 196, 200, 209, 210, 221, 225, 227, 229, 250–​51,  290–​91 of behavior  162, 202, 208, 221 of brain  200, 201, 208, 212, 227, 230–​31, 236 Argentina 118 Arizona  77–​78, 80–​83, 86, 100–​1, 346 Ashker v. Brown  125, 348 associate  68, 71–​72, 354, 363, 364   Bergen Prison  31 BIU Committee  330–​31 blood pressure  160–​61, 186–​87, 188–​89, 196, 361 brain  15–​16, 142–​43, 166, 187–​88, 199, 222, 227–​29, 230–​31, 236, 244, 248–​49, 344 damage  200–​1, 204–​5, 208 –​9, 216, 228–​29 impact of stress on  200–​1, 205–​12, 222–​23 structure  201, 202, 203–​4, 205, 208, 210–​11,  216 Brief Jail Mental Health Screen  328   California  6, 9, 77, 92, 96–​97, 100–​1, 110, 121, 134–​35, 156, 185, 190, 245, 250–​51, 271, 280, 326, 346, 348, 353, 357, 361–​62, 369–​70 Canada  38–​39, 120, 259, 261, 262, 267, 335 cell  17, 21–​22, 26, 27–​33, 49–​55, 59, 63–​74, 77, 90, 109 –​12, 118, 120, 122, 130, 135–​36,

174, 175, 204–​5, 246, 248, 268, 297–​311, 317, 321, 347, 355, 367 design  63–​65, 77, 86, 91, 92, 247–​48, 353–​54 equipment 99 facilities  63, 99, 123, 131, 224, 244, 247–​48, 251–​52, 261–​62, 271–​72, 298, 300–​1, 326 time out of  78–​79, 91, 103–​8, 112, 129, 131, 137–​38, 224–​25, 252–​53, 304, 315–​16, 318–​19, 329–​30, 348,  363–​64 see also isolation: cell; risk cell; safety cell; security cell; solitary cell CIA 38 Clinical Alternatives to Punitive Segregation Criteria  15,  178–​79 Close Supervision Centers (CSC)  13, 67, 121 cognitive functions  202, 204, 208 cognitive-​behavior group intervention  330 communal confinement  289 community  17, 36–​37, 45–​46, 74, 91–​92, 107, 130, 179–​80, 196, 222–​23, 234, 272, 283, 297, 299–​300, 304, 306, 308, 311, 314–​16, 322, 325–​28,  337–​38 comparative experts  353 comparative studies  298, 353 contact  1–​4, 15–​16, 46–​47, 51–​53, 103–​4, 107, 129, 131–​32, 137–​45, 146–​47, 148, 162, 186, 189–​90, 196, 216, 221, 234–​35, 254, 300, 316, 363–​64, 366–​67 human  10, 30–​31, 33, 38, 57, 61, 64, 70, 77, 78–​79, 91, 93–​94, 99, 102, 118, 122–​23, 125, 142, 250, 271–​72, 307–​8, 339–​40, 345–​46, 353, 355 physical  102, 131, 139, 142, 270, 274–​75, 358–​59 staff-​prisoner  56, 65, 270, 275, 307–​8 see also relationships control  56–​57, 64, 66, 68–​69, 72, 77, 80, 85, 86–​87, 89, 91, 93, 95, 122, 131–​33, 142–​43, 158, 175, 199–​200, 202, 206–​16, 222–​23, 230–​31, 250–​51, 261–​63, 272, 280–​85, 291, 311, 315–​20, 327–​29, 343, 356–​57

374 Index Controlled Cell Restriction (CCR)  243–​44 Counterintelligence interrogation  38 courts  7–​8, 10–​11, 13, 43, 49, 78, 84–​86, 90, 95–​97, 99,  344–​57 criminal court  43–​44, 260 crimmigration 30 culture  65–​66, 70, 72–​74, 199–​200, 283, 290, 305, 323–​24, 325–​26, 327, 344–​45   daily tasks  251–​52, 253 death penalty  2, 43–​44, 51–​52, 59–​60, 100, 322, 349, 356 death row prisoners  29–​30, 52, 54, 55, 59–​60, 77, 81, 82, 349–​50 Denmark  21–​22, 26–​27, 29, 30, 34–​35, 38–​39, 49–​50,  54 detainee, the  25–​28, 38, 43–​58, 96, 100–​1, 118–​19, 173–​75, 176–​77, 179–​80, 269, 298, 301, 343 detention  21, 25, 26, 30, 38, 43–​60, 91–​92, 100–​1, 102, 103–​4, 106, 117–​25, 176–​77, 246, 284–​86, 291–​92, 301, 307, 343 incommunicado  43–​44, 46, 47, 48, 49 prevention  29, 59–​60, 118, 154, 159, 164–​65, 166 , 2​ 67, 273 , ​305, 327, 332–​33 diagnoses  36, 174–​75, 185–​86, 307 discrimination  337–​38,  339 Dynamic Risk Assessment Meetings  68 dynamic security  264–​65, 274–​75, 303, 308, 326 definition of  274–​75   elementary human needs  44–​45 emotional response  135, 207 enforced disappearance  43, 45–​47, 49, 54–​55 England  13, 16, 32–​34, 60–​63, 66, 70, 71, 72, 73, 74, 199–​200, 263, 269, 279–​80, 286, 290–​92, 325,  366–​67 environment  49–​50, 73, 91, 129, 138–​40, 148, 154–​55, 158–​59, 161–​62, 164–​65, 202–​4, 206–​12, 214–​16, 222, 226–​36, 247–​49, 254–​55, 271, 275, 284–​86, 288–​89, 306–308, 317–​19, 321–​22, 327, 337, 344, 363–​64,  367–​68 European Court of Human Rights, the, (ECHR)  43–​44, 49–​51, 57–​58,  119–​20 European prison rules  7–​8 European Torture Prevention Committee, the, (CPT)  7, 29–​30, 162–​63, 267, 273, 304–​5 evolution  203, 222, 230–​31, 255, 344 exclusion  from company  297, 306

facilities  27–​31, 38, 44–​46, 67–​68, 77, 78–​79, 81, 82–​83, 85–​86, 94, 102–​6, 131–​33, 134–​35, 144–​45, 156, 157–​58, 164–​65, 174, 222, 246, 262, 268, 280, 285–​86, 298, 303, 307, 309, 313–​15, 318–​20, 322, 325 –​26, 343, 367 false positive  364 family  10–​11, 45–​52, 81–​82, 139–​40, 155, 213, 215, 222, 245, 246–​47, 252, 255, 283–​84, 288, 353–​54, 355, 362, 366, 367 Federal Court  90, 92–​99, 346–​47, 355 Federal Drug Administration  159–​60, 166 Fort Leavenworth  118 Framingham Heart Study  154–​55 freedom of movement  200, 266, 273, 326   General Population (GP)  29, 71–​72, 78, 90–​91, 99, 101, 103–​4, 105, 108, 110–​12, 122, 135–​36, 189–​90, 281, 312–​13, 315–​16, 317–​18, 321–​22, 328, 330–​31, 337, 348, 356–​57,  364 Geneva Convention  46–​47 globalization  281–​83, 290,  291–​92 of crime  281 government  52, 53, 82, 90, 95–​96, 118–​21, 185–​86, 250, 270, 271–​72, 286–​87, 298, 299, 303, 335, 339–​40, 345, 350, 366 Grendon Prison model, the  16, 289–​91 Guantánamo Bay  26, 38, 45–​46, 53, 90, 95–​96 Guide for the Care and Use of Laboratory Animals, the  233–​34   Halden prison  297, 300–​3, 305, 307–​9 harm  68, 84–​85, 86, 90–​91, 93, 99, 100–​1, 111–​13, 118, 122–​23, 124–​25, 129–​34, 138–​43, 148, 153–​67, 173–​82, 201, 221, 268, 279–​86, 290–​91, 303, 306, 312, 326–​28, 335–​39, 343–​45, 347–​48, 353, 355, 357, 359–​62 harm-​benefit calculus  14–​15 harms-​to-​benefit approach  158–​60, 162,  166–​67 legal understandings of  335, 344 health  55, 84, 145, 153–​96, 202–​3, 209–​10, 211–​16, 222–​23, 228–​34, 243–​44, 269, 285–​86, 289–​90, 307, 312, 313–​14, 315–​16, 317–​23, 327–​31, 337–​38, 343, 347, 359–​62 effects  1, 4, 6, 7–​8, 12–​13, 24, 27, 31–​32, 34, 36–​37, 55, 129, 153–​55, 156–​58, 160–​61,  337 health care professions  166–​67, 269 outcomes  15, 154–​55, 173, 179–​80, 182, 185

Index  375 risks  55, 154, 156, 158, 164–​65, 173, 178–​79,  181 service  56, 173–​75, 176–​82, 232–​34, 307, 312, 328 staff  68, 74, 83–​84, 132–​33, 144–​45, 164–​65, 174, 176–​77, 180, 328–​29, 330–​31 high security prisoners  16, 52, 94, 259–​61, 262–​76, 279–​80, 283–​84, 290, 291–​92, 364–​65,  366–​67 high security prisons  51, 52, 67, 80–​81, 135–​36, 255–​56, 261–​62, 272–​75, 283–​84, 297–​98, 301, 307, 309, 366–​67 number of prisoners in  31, 67, 78, 106–​9, 111, 130–​31, 134–​35, 189–​90, 243–​45, 262, 263–​66, 273, 369 Human resource exploitation training manual 40 human rights  1, 3–​13, 26–​27, 39–​40, 43–​51, 55–​56, 57–​59, 65, 90, 119–​22, 224, 299, 307–​8, 344, 360–​61,  368–​69 committee  3, 6–​7, 48, 49, 50–​51 violations  50–​51,  368 hypertension  15, 156, 185, 187–​96, 336–​37,  361–​62 increased rates of  195–​96, 361   “import model”, the  300 imprisonment  15, 16, 21, 39, 43–​46, 60, 62–​63, 77–​87, 96–​97, 130, 189–​90, 255–​60, 279–​83, 289–​90,  301 incarceration  14, 24, 31–​32, 78–​80, 84, 90–​91, 92–​94, 130, 156–​57, 173, 175, 176–​77, 199–​200, 204–​6, 214, 216–​17, 221–​24, 271–​72, 326, 349–​50, 365 rates  78–​79, 176–​77,  326 inhumane treatment  354–​55 insane asylum  22, 35 Institutional Animal Care and Use Committee  233–​34 inter-​disciplinary experts  10, 353 international human rights standards  6–​7, 8–​9, 48–​49,  368–​69 international law  45–​46, 49, 59, 117, 120–​22, 357, 368, 369 isolation  1–​21, 49–​51, 52, 54–​56, 57–​58, 63–​64, 72, 74, 77–​79, 81–​86, 89–​96, 97, 99–​113, 117–​19, 122–​25, 130–​48, 156–​57, 162, 164–​65, 166, 179, 185–​90, 200–​3, 208–​11, 224–​25, 226, 229–​30, 233, 236, 245–​49, 254, 268, 288–​89, 304, 305, 307, 312–​13, 317–​18, 339, 343, 348, 349–​50, 355, 356–​57, 358–​63,  366–​69

cell  33, 50–​51, 52, 54–​55, 64, 81, 104, 106, 120, 182, 268, 271–​72 damage  134–​37, 141–​43, 153–​54, 160–​61, 179–​80, 185–​90, 193–​96, 206, 208–​11, 216, 221, 227–​30, 249, 250–​51, 344, 347,  360–​62 forms of  112–​13, 117, 122, 148, 179, 222, 365 long-​term  8, 10, 77, 84, 138, 147–​48, 308–​9, 311, 312, 346, 362 objective  122–​23, 185, 187, 189–​90, 339 panic  132–​33, 138, 148 psychological impact of  186–​87, 231 quasi- 53 short-​term  122,  139 subjective  124–​25,  185 total  33, 52–​53, 77, 84–​85, 140 voluntary  4, 99 Istanbul Declaration  54–​55,  57–​58 Istanbul Statement on Solitary Confinement  7–​9, 43, 48–​49, 54–​57, 102, 121–​22   jail  25, 26, 31, 60, 78–​79, 81–​82, 101, 104–​6, 155–​56, 164–​66, 173–​82, 224, 246, 307, 328, 343, 347 juveniles  44–​45, 56–​57, 100–​2,  154   labelling  30, 60, 63, 71–​72, 73, 84–​86, 117–​18, 179–​80, 182, 262, 348, 354 laboratory studies  160f, 226–​31, 236 law standards  7–​8, 13, 43, 49, 368–​69 law  2–​9, 12–​14, 24–​31, 38–​39, 43–​50, 58, 79–​80, 83–​84, 86–​87, 89, 94–​96, 100–​2, 111–​12, 117–​22, 201, 225–​27, 232, 270, 275–​76, 279–​80, 299, 306, 307–​8, 317–​18, 335, 337–​40, 344, 346, 350, 357, 361, 368–​69 state of the  45–​46 lawmakers  13, 21, 302 learning  60, 144, 190, 202–​4, 208, 216, 226–​29, 263, 286–​87, 288–​89, 330 legal rights  3, 344–​45, 354–​55 legal system  335, 344 legislation  102, 109, 233–​34, 317–​18, 344–​45 liberty  6–​7, 45–​47, 85, 93–​96, 97, 132–​33, 260, 261, 335, 339 deprivation of  13, 30, 43–​47, 48, 122, 132–​33, 260, 275–​76, 299, 302, 304, 368 personal  46–​47 see also freedom of movement life sentence  55, 59–​60, 91 litigation  6, 9–​16, 29–​30, 78, 86, 92–​93, 95, 102, 109, 125–​26, 155–​56, 180, 190, 335, 336–​40, 344–​46,  353–​70

376 Index loneliness  15, 21–​22, 129–​96, 221–​29, 245–​47, 343–​50,  361 Louisiana State Prison  97, 108, 121, 244   Manchester Prison  67–​68 maximum sanction  312 maximum security prisons  112, 357–​58, 366 medical conditions  153–​54 worsening of  90, 153–​54, 336–​37 medical profession  49–​50, 154, 166–​67, 269, 347 medical records  361–​62 electronic 173 mental disorder  54–​55, 143, 211–​12, 287, 304, 306 prevention of  304, 306 mental health  12–​13, 36, 43, 54–​55, 68, 74, 84–​85, 96–​97, 130–​31, 145, 153–​55, 156–​57, 159, 164–​65, 174, 176–​80, 185–​86, 202–​3, 229, 269, 307, 312, 317–​20, 322–​23, 328, 329, 359 conditions  2, 55, 56, 84, 96–​97, 100, 153–​54, 190, 359 harm of  7–​8, 14–​15, 65, 83, 154, 164–​66, 176–​77, 179–​80,  312 problems  17, 22, 33, 35, 83–​85, 135, 145, 176–​77, 307, 313–​14, 321–​22,  361–​62 staff  56, 132–​33, 145, 180, 319, 328–​31 mental illness  53, 63–​64, 101, 103–​4, 178–​79, 191, 313–​15, 317–​20, 324, 327–​29, 336–​37, 338, 343, 346, 355, 359–​60 physical symptoms of  174, 336–​37 modern penitentiary  4, 13, 21, 27, 32 monitoring  5, 13, 38–​39, 43, 48–​49, 57–​58, 181, 233–​34, 269,  285–​86   negative health effects  1, 7–​8, 24, 27, 31–​32, 35, 37, 49–​50, 55, 337 symptoms of  35, 55, 134–​35 Nelson Mandela rules  57, 61, 102, 124–​25, 224, 337 definition of  61, 102 negotiation of  103, 124–​25 neo-​liberalism  282–​83 neuroscience  10, 12–​13, 15–​16, 200, 356,  360–​61 New Zealand  13, 60–​65, 71, 73 normalcy security  326 definition of  326 normalization  17, 299–​300,  303–​4 principle of  17, 299–​300, 303–​4 North Dakota  17, 325–​33 Norway  17, 26, 29–​31, 34, 38–​39, 297–​301, 304, 307–​9, 326

Norwegian Correctional Service  297–​98, 306,  307–​8 Norwegian Criminal Justice system  326 Norwegian Penal Code  297   Observational studies  154–​58 Ohio  11, 85–​86, 91–​96, 346–​47,  364–​66 “ontological insecurity,”  140–​41   parole  79–​80, 94, 247–​48, 250, 298–​300, 305, 314, 337–​38, 354 Pelican Bay litigation  9–​10, 78, 353–​70 Pelican Bay State Prison  6, 9, 15, 77, 100–​1, 134, 148, 156, 185, 189–​90, 247–​48, 271, 353–​54,  369 penal populism  39, 81 penal practice  16, 279–​83, 290–​92 established 292 penal sanction  117, 260, 298 Philadelphia-​model  21–​27, 35,  36–​37 physical design  131, 280 physical harm  9, 85, 154, 164, 175, 201, 312, 336–​37, 339, 347, 353, 360–​62 physical health  43, 84, 129, 153–​54, 159, 179–​80, 185, 269, 347 physical security  274–​75 pre-​trial  3–​4, 7, 25–​27, 37–​39, 43–​44, 49–​51, 54–​57, 78–​79, 118–​19, 123, 182, 298, 301, 307 detention  7, 43–​44, 49–​50, 54, 56–​57, 123, 301, 307 prevention  5, 7, 29–​30, 59–​60, 118, 154, 159, 162–​67, 232, 267, 273, 304–​5, 327, 332–​33 prison  1–​17, 21–​40, 43–​58, 59–​74, 77–​87, 89–​113, 117–​48, 155–​66, 175–​82, 185, 189–​217, 223–​25, 243–​92, 297–​324, 325–​70 administration  16, 24–​25, 28–​29, 117, 145, 260 architecture  274, 281, 302–​3 capacity  72, 90, 96–​97, 298 design  14, 24, 63–​69, 77, 78–​81, 82–​83, 86, 111, 131, 247–​48, 280–​81, 302, 307, 326 experience  12–​13, 16, 21, 22, 55, 63, 129, 131–​32, 134–​41, 144–​47, 243–​56, 259, 271–​75, 309, 367, 369 facilities  77–​105, 106, 134–​35, 144–​45, 246, 268, 280, 298, 307–​9, 313–​15, 318–​19, 322, 325–​26,  367 governor  4–​5, 22, 35–​36, 66, 185, 255–​59, 263–​66, 271, 286–​87, 313–​15, 366 guard  16, 81, 83–​84, 123, 243–​45, 251–​52, 274–​75

Index  377 management  6, 11–​12, 16, 63–​64, 117, 259, 261–​62, 263, 265–​66, 267, 271–​75, 279–​81, 291–​92, 356–​57, 363, 364, 366–​67 population  11, 17, 29, 39, 60, 61–​62, 65–​66, 67, 70, 71, 78–​80, 84, 90, 100–​1, 103–​12, 135–​36, 189–​96, 200–​1, 223–​24, 243–​44, 280–​81, 287, 298, 315–​16, 326, 332, 356–​58, 361–​62, 364, 367 Prison’s Inmate Family Council  247 prisoners  long-​term  10–​11, 15–​16, 52, 62, 67–​69, 71–​77, 78–​79, 81–​85, 90–​91, 100, 104, 130, 135–​41, 143, 146–​47, 163, 189–​90, 195, 196, 245, 259, 263–​67, 284–​85, 290, 323, 344, 346–​49, 356, 360–​65 perspective  16, 129, 145–​46, 192–​93, 357–​58 protection of  28–​30, 59–​60, 62–​63, 85, 90, 92, 95, 101, 110, 122, 269, 343–​44 rights  5, 11–​13, 46–​47, 57–​58, 65, 81, 83, 90, 92, 94, 95, 97, 269–​70, 307–​8, 344, 354–​55, 357–​58,  368 safety  29, 96–​97, 261, 265, 272, 290–​91, 305–​6,  362 procedural security  274–​75 program activities  288, 298, 304, 305, 317 prohibitions  63, 79–​80, 83–​84, 121–​22, 131 protection  14, 24–​25, 28–​29, 45–​46, 59–​60, 62–​63, 85, 90–​95, 96, 101, 110, 118, 122, 199–​200, 232, 269, 339, 343, 344, 360–​61, 368, 369 psychological harm  10, 14–​15, 56, 99, 129–​33, 141–​42, 336–​39, 353, 357, 360 risk of  10, 99, 129, 132–​33, 134, 336–​39 psychological stress  206, 212, 230–​31 psychological theory  129 Public Health Service  232–​34 public safety  290–​91, 311, 315, 322–​23, 326 punishment  7, 10, 21–​22, 24–​25, 27–​29, 33–​36, 43–​44, 49, 52–​65, 72, 78, 83–​92, 111–​12, 118–​25, 174–​81, 199–​216, 243–​44, 260, 267, 269, 275–​76, 281–​82, 287, 299–​303, 308–​9, 312, 343–​44, 346, 348–​49, 355–​57,  368–​69 practice  4, 7, 9, 22, 28–​29, 180, 357 recidivism rates  326   reform  1, 43, 174, 311, 313–​15, 325–​33 inconsistent  14–​15 rehabilitation  17, 32–​33, 44–​45, 53, 55–​56, 73–​74, 190, 250–​51, 260, 271, 291, 302–​8, 322–​23, 325,  367–​68 reintegration  56, 68–​69, 71–​72, 79–​80, 299, 300, 309, 337–​38

relationships  68–​73, 139–​40, 244, 282–​83, 285–​86, 291, 302, 308, 331–​32 interpersonal 70 social  148, 185–​87,  189–​90 release  17, 26, 74, 90, 107, 109–​11, 136, 230, 232–​33, 243–​44, 245, 260, 263, 265–​66, 272, 283–​84, 299–​300, 305, 311, 314–​16, 326, 335, 337–​38, 348, 353–​54, 360, 363–​64, 365,  369–​70 Residential Treatment Program  74, 313–​14, 317–​21 resistance  86, 290 restrictive housing  definition of  78–​79, 104–​5,  107–​8 Extended  103–​4, 311, 315–​16, 318, 320–​24 number of prisoners at  106–​10, 327–​28 policy  315, 320 return to the community  74, 299–​300, 311 risk cells  64–​65 risk factors  156–​57, 178, 186–​87, 192–​93,  287–​88 individual assessment of  325–​26 risk society  279   safeguards  2, 3, 94, 105–​6, 122, 264–​65, 335 safety cells  17, 179–​80, 182, 305 Scotland  259, 261, 263, 266, 366 Scottish Prison Service  255–​59, 261–​62, 263–​64 secret detention  13, 43–​50 definition of  46–​47 security  13–​17, 24–​25, 29, 31, 43–​46, 47, 51, 52–​53, 66–​67, 70, 77, 94, 101, 122, 130–​31, 144, 175–​81, 297–​309, 315–​16, 326–​29, 335, 337–​39, 356–​58, 359, 366–​67 security cells  309 security considerations  52 Security Housing Units  83, 92, 134–​35, 246, 250–​51, 271, 348, 367–​68 Security Management Unit  77, 271 security threat  81–​82,  274–​75 segregation  13, 17, 33, 61–​62, 63–​65, 66, 69, 72–​73, 74, 79–​80, 94, 105–​7, 117–​18, 132–​33, 179–​80, 224–​25, 251–​52, 254–​55, 263, 267–​68, 311, 312–​23, 336–​37, 346, 363–​65,  367 cells  61–​66, 246, 261–​62, 305, 319–​20 definition of  335 punitive  17, 178–​79, 312 units  63–​64, 66, 70, 73, 251–​52 self-​harm  15, 63–​64, 74, 134, 174–​78, 289–​90, 312–​13, 323, 336–​37, 339, 343

378 Index sentence length  110, 178 long-​term  6, 36–​37, 52, 79–​80, 86–​87, 118–​19, 137–​38, 255–​56, 259, 261, 263, 265–​66, 301, 322, 348 short-​term  39,  173 “social death,”  140–​41, 147–​48, 162–​63, 358–​59 social integration  186 social interaction  1, 11, 67–​68, 123, 130–​31, 137–​38, 139, 144–​45, 160, 162–​63, 189–​90, 202–​3, 208–​9, 222, 227, 234–​35, 327, 337, 360–​61, 362, 366 social isolation  1–​5, 12–​13, 15–​16, 142, 145–​46, 148, 185–​96, 200, 210–​11, 216, 222–​23, 229–​30, 344, 361, 365, 366 social needs  5, 166, 222–​23 social pathologies  138–​39,  229–​30 problematic features of  139 soft law standards  13, 43 solitary cells  27–​28, 53, 54–​55, 90, 312 solitary confinement,  attitudes towards use of  89 conditions of  2, 10–​11, 31, 53, 54–​57, 62–​66, 78–​80, 81–​140, 153–​67, 210–​11, 216, 221–​26, 264, 270, 280, 284–​86, 336–​37, 344–​46, 347–​55,  363–​64 consequences of  131, 141–​42, 148, 162–​63, 200,  204–​5 definition of  2, 8–​9, 49–​50, 54–​57, 60–​61, 78–​79, 102, 104–​5, 118, 121–​22, 155–​57,  270 experience of  12–​13, 15–​16, 21, 34–​35, 43, 134–​35, 138–​39, 155–​57, 176–​78, 204–​5, 243–​59, 280,  369–​70 harmful effects of  34–​37, 43, 56–​58, 130–​31, 138–​39, 141–​42, 154, 348 history of  13, 21, 26–​27, 31–​32, 39, 55–​61, 78–​80, 124–​26, 275–​76,  338 indeterminate  311, 353–​57, 363, 369–​70 international history of  21–​40 justifications of  11, 65–​66, 93, 96, 104 legitimate use of  57–​58, 121–​25 long-​term use of  10–​11, 15–​16, 60, 73, 74, 85, 100, 104, 118, 135–​37, 138, 139, 140, 146, 162, 164–​65, 265–​66, 290, 344,  346–​47 practice of  1–​15, 16–​40, 43–​50, 56–​57, 66–​74, 83–​85, 89–​94, 102–​20, 129, 161–​65, 173, 176–​81, 185, 204–​5, 267, 270, 284–​85, 289, 336–​37, 339–​40, 343–​49, 357, 369 purposes of  21, 24–​25, 28–​29, 31–​32, 37, 49, 78–​79, 119, 122, 159–​60, 264, 267 unlawful use of  29, 31, 102

Solitary Housing Unit  243–​44 Special Handling Unit  259, 262, 273 Special Housing Unit  112, 353–​54 suicide  34, 56, 63, 100–​1, 120, 134–​35, 138, 164–​65, 287, 304, 305, 312–​13, 323, 336–​37, 338–​39,  356 prevention of  304–​5 supermax  4, 11, 13–​14, 16, 28–​29, 38–​39, 64, 71–​72, 77–​87, 90, 91, 93–​94, 106, 133n7, 252, 259, 261–​62, 271–​72, 279–​92, 322–​23, 324,  363–​66 concepts of  261–​62, 280, 282, 291 definition of  78–​79, 156, 291–​92 design  14, 64, 77–​86, 280–​81 effectiveness of  28–​29, 279, 281–​82 history of  78, 80, 312 values of  86–​87, 281–​83,  290–​92 supervision  7, 13, 43–​44, 60, 67, 121, 273–​75, 285–​86, 287–​88, 325,  366–​67 Supreme Court  10, 36, 84–​85, 90–​96, 111–​12, 117, 119–​20, 125–​26, 270, 271, 335, 336, 340, 344, 346–​50, 357, 359 surveillance, allow for  174 Sweden  3, 26–​27, 30, 34, 38–​39   therapy  174, 178–​79, 287–​88, 319, 321 therapeutic communities  16, 286–​87, 288–​89, 291 Time-​In-​Cell report  106 torture  5–​14, 27–​30, 37–​39, 43–​59, 83–​85, 96, 102, 117–​26, 162–​63, 181, 199–​200, 245, 246, 249–​50, 267, 269, 273, 304, 368–​69 prevention  5–​7, 29–​30, 59–​60, 118, 162–​63, 267, 273, 304   UCLA Loneliness Scale  146–​48 UN  6–​7 the UN Convention Against Torture  7, 38–​39, 44–​45, 124–​25,  369 the UN Standard Minimum Rules for the Treatment of Prisoners  57, 61, 102, 124–​25,  224 United Kingdom  60, 119–​20, 186–​87, 267, 283–​86 United States  4–​10, 12–​16, 21, 29–​30, 32, 38–​39, 55–​60, 62–​63, 71, 74, 77–​85, 89–​133, 144–​45, 156–​57, 161–​62, 173, 186–​87, 199–​200, 222–​26, 232–​34, 243–​44, 259–​63, 271, 273, 279, 282–​83, 285–​86, 311–​12, 317–​18, 326, 343–​45, 353, 357, 365, 368

Index  379 government  82, 95–​96, 118–​20, 121, 271–​72, 345 jail setting  104–​5, 173, 224, 343 prison population  16, 39, 60, 62–​63, 71–​72, 78–​81, 84, 90, 99–​100, 105–​12, 131, 156–​57, 223–​24, 243–​44, 263–​64, 285–​86, 312, 326 Supreme Court  10, 84–​85, 95, 111–​12, 117–​20, 125–​26, 271, 344, 357

  victims  24, 45–​46, 287, 311 violence  10–​11, 14, 15, 17, 28–​29, 44–​45, 49, 81–​82, 90, 93, 95–​96, 154, 159, 164–​67,

174–​75, 252, 254, 259, 261–​62, 267, 289–​91, 304–​5, 307, 309, 329–​32, 365 prevention of  154, 159, 164–​67 visitation 312 Vridsløselille Prison  21–​24, 35   Wales  13, 16, 60–​63, 66, 67–​74n22, 263, 269, 279–​80, 286, 290–​92, 367 war on drugs  90 war on terror  26, 45–​46 warden  51–​53, 78, 80–​81, 83, 93, 235, 243–​44, 255–​59, 329, 347, 366 Wilkinson v. Austin  88, 93–​94n28, 105–​6, 110