Efforts to rein in the use of solitary confinement promoted by prison reformers and, more recently, by the Obama administration are having a measurable impact at the state level, according to a new report.
Although the U.S. continues to house thousands of inmates in conditions that defy international standards, the findings show many states are slowly moving to bring their correctional policies more in line with those standards, according to the report by the Arthur Liman Public Interest Program at Yale Law School in collaboration with the Association of State Correctional Administrators (ASCA).
The report highlights efforts across the U.S. to remove inmates who suffer from severe mental illnesses from the restricted-housing population and new rules in California, Colorado, Ohio and New York banning or limiting the use of segregation for juvenile inmates.
“What we are seeing is that prison systems are motivated to reduce the use of isolation in prisons and are actively putting into place policies designed to reduce the use of restrictive housing,” said Leann K. Bertsch, President of ASCA, in a statement accompanying the report.
In October, for example, the New Jersey legislature passed a measure limiting the use of “isolated confinement” to no more than 15 consecutive days, and to no more than 20 days during any 60-day period. The bill is now awaiting the governor’s signature.
Similar bills are pending in several other states, including Illinois, Rhode Island and Massachusetts.
In July 2015, President Barack Obama announced that he had directed the Attorney General to conduct a review of the use of solitary confinement in the federal prison system.
The Department of Justice (DOJ) released a set of “Guiding Principles” earlier this year, eliminating the use of solitary confinement as discipline for low-level offenses, and requiring that prisoners be housed in the “least restrictive setting necessary” for the shortest possible term. The president also issued an order banning the use of solitary confinement for juveniles housed in federal prisons.
This summer, the American Correctional Association (ACA) approved new standards for prisoner segregation that mirror many of the DOJ guidelines.
The Yale study is a follow-up to two earlier assessments of restricted housing in U.S. prisons by the two groups, and offers a rare glimpse into one of the nation’s most secretive and controversial correctional practices.
The researchers queried 48 jurisdictions—including the Federal Bureau of Prisons, the District of Columbia and the Virgin Islands—which held about 96 percent of the nation’s prisoners convicted of a felony. They identified 67,442 prisoners who were confined to some form of restricted housing (generally defined as keeping an inmate in their cell for 22 hours a day or more) as of October 1, 2015.
This is roughly on par with the number of prisoners in solitary confinement identified in a Liman/ASCA report released two years ago, but that study comprised data from only 34 jurisdictions.
The report also demonstrates that the U.S. still has a long way to go to bring its correctional practices in line with global norms. Thanks to the absence of uniform standards and a lack of attention to how long some inmates spend in isolation, the U.S. remains an outlier on the use of solitary confinement.
Last year, the United Nations Commission on Crime Prevention and Criminal Justice revised its Standard Minimum Rules for the Treatment of Prisoners—known as the “Nelson Mandela Rules”—to designate “prolonged” solitary confinement as a prohibited form of torture. The UN defines prolonged solitary confinement as isolation lasting more than 15 straight days—a standard that is routinely violated in America’s prisons.
According to the Liman/ASCA data, more than 80 percent of inmates in restricted housing in the U.S. have been there for a month or longer, and a third have been in isolation for a year or more. Nearly 6,000 prisoners in 31 jurisdictions have been kept in-cell for 22 hours a day or more for more than three years, and roughly half of those have spent six or more years in isolation.
In a story published recently in The Crime Report, Mary Buser, the former assistant chief of mental health at the Rikers Island, describes the effect this kind of treatment has on inmates over time.
“If they had no mental health issues before they entered solitary,” she writes, “they do now.”
How a prisoner winds up in isolation—and how long he or she stays there—varies dramatically between states.
Most correctional facilities distinguish between disciplinary segregation (used for short periods as punishment for some infraction), protective custody, and administrative segregation. The latter, administrative segregation, is typically reserved for inmates who are deemed too disruptive or unpredictable to be housed in general population. This frequently includes activist inmates that staff have identified as “prison organizers.”
Unlike disciplinary segregation, administrative segregation (Ad-Seg) generally has no fixed endpoint. Release back into general population is left to the discretion of prison administrators.
As a result of this policy, stays in Ad-Seg routinely stretch into years.
Prison reformers say there needs to be more focus on how long inmates are being held.
“Advocates should do more to distinguish between solitary that lasts weeks and solitary that lasts years and decades. They are not the same,” said David Menschel, a prominent advocate for criminal justice reform and the executive producer of the film “Solitary“—which premiered at this year’s Tribeca Film Festival.
“Two months in solitary is bad, but two years in solitary ought to be unconscionable. And 20 years in solitary ought to lead to the head of the DOC being arrested.”
States such as Vermont, Minnesota and Colorado—as well as the District of Columbia—now favor shorter stints in isolation, with few or no inmates held in solitary for periods exceeding a year, according to the report.
At the other end of the spectrum are Louisiana, Tennessee, California, Florida and Arizona—all of whom continue to house hundreds of inmates in long-term solitary confinement. In Texas, more than three-quarters of all inmates in restricted housing have been there for longer than a year.
And despite a concerted effort to reduce the use of long-term isolation, the Federal Bureau of Prisons has more than 1,000 inmates in its custody that have been in segregation for a year or longer.
According to the Liman/ASCA researchers, 17 jurisdictions do not keep track of the numbers of continuous days that people remained in isolation. One of them is Pennsylvania, where earlier this year a federal judge ordered the Department of Corrections to release back into the general population an inmate who had been held in administrative segregation for nearly four decades.
Arthur Johnson was one of more than 100 inmates on the PA DOC’s Restricted Release List — a subset of administrative segregation reserved for inmates who “pose a threat to the secure operation of the facility.”
Unlike other prisoners, who come and go from administrative custody at the discretion of their facility’s superintendent, inmates designated RRL can only get out with the express permission of the secretary of corrections.
Last year the PA DOC promised to make sweeping changes to its policies on solitary confinement for mentally ill prisoners, and instituted a plan to reduce the use of segregation by, among other things, better training guards to handle mental health crises.
The state now ranks below the national average in terms of the percentage of its total inmate population that is in restricted housing; but it continues to house one of the nation’s largest long-term solitary populations.
Menschel calls the mere existence of the new Liman/ASCA report a victory for prison reform,
“As recently as two years ago it was near-impossible to get states to turn over data,” he said. “In fact, one couldn’t even get most DOCs to agree on a definition of solitary. But most of all the report shows that states that say ‘we need to do this for security’ are not telling the truth.
“If Colorado can reduce solitary by 90 percent over five years, and reduce it so that only one inmate has been in solitary for longer than a year, then every state can do it.”
Editor’s Note: this story has been updated to make clear the NJ bill mentioned above is still awaiting the governor’s approval.
Christopher Moraff is a regular contributor to The Crime Report. He welcomes readers’ comments.