Is It Time to Ban Solitary Confinement?

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10.10.09solitarySome call it torture, some call it proper punishment. But in Maine, long-term solitary confinement may soon be illegal.


Last week’s episode of Law & Order: SVU centered around a man who, after assaulting a police officer, used an unusual defense to stave off prison time: solitary confinement made me crazy. The character, named Callum Donovan, had spent 14 years in what is commonly called “the hole,” a bathroom-sized prison cell where he had no human contact for 23 hours a day.

When Donovan, played by Stephen Rea, first floats the notion, the cops and prosecutors turn up their noses.

“Were you beaten? Water torture?” asks ADA Sonja Paxton, played by Christine Lahti.

“No,” says Donovan, “but what they did to me was just as bad.”

For many who observe and report on the criminal justice system, Donovan's assessment of his time in solitary confinement comes as no surprise.

“The kind of torture that goes on in many supermax prisons is worse than Guantanamo,” says Lance Tapley, an investigative journalist who has spent the past four years exposing abuses inside the “supermax” unit of the Maine State Prison for The Phoenix newspapers.

Tapley uses interviews with current and former prisoners to document life in “the hole.” He focuses on issues ranging from violent cell extraction and filthy conditions to suicides and fatal beatings. Several of his portraits are of prisoners who were mentally ill before being thrown in what is referred to in Maine as the Special Management Unit, or SMU.

Tapley claims his articles spurred some improvements in conditions. But he notes the basic issue of whether long-term solitary confinement constitutes torture (or cruel and unusual punishment) has, politically, been a kind of third-rail.

Until now.

Last month, Maine State Rep. James Schatz proposed a bill that would limit solitary confinement in Maine to 45 days unless it can be shown at a hearing that the prisoner committed one of several listed infractions, such as sexual or injury-inducing assault. The bill also mandates that prisoners be allowed counsel and the opportunity to call witnesses at the hearing.

Schatz collaborated with the Maine Prisoner Advocacy Coalition to write the bill, which must be approved before being presented before the legislature's second session. The state's Legislative Council is set to make a decision October 15. If the council approves and the legislature passes the bill, Maine would be the first state to specifically limit solitary confinement for all prisoners and to provide inmates with a transparent process for getting in–and getting out–of the hole.

Inside “The Hole”

Although solitary confinement in the United States pre-dates the explosion of so-called supermax prisons in the past thirty years, the practice of isolating troublesome prisoners in 23-hour lock-down for years at a time, by many accounts, has grown with the number of isolation cells. Inmates are sent to these units not for crimes they have been convicted of, but for acting up in prison. According to a 2006 report written by Daniel P. Mears of The Urban Institute, as of 2004 there were 44 states with supermax facilities. As prisons have become more crowded, Tapley says, it behooves corrections officials to move people out of the general population and into “these expensive cells.”

Originally, supermax facilities like Illinois' Marion or California's Pelican Bay, were erected to house “the worst of the worst:” gang members and those so violent they cannot be contained in the general population. But Mears’ report found that the “logic by which supermax prisons achieve each of a range of goals remains largely unclear.” According to Tapley, who has been reporting on Maine prisons since 2005, prisoners in the state can be thrown into the hole indefinitely for infractions ranging from assault on guards to possession of marijuana. And, as the language of Schatz's bill indicates, there is no standard process for a prisoner to “earn” his way out.

Maine’s Associate Commissioner of Corrections, Denise Lord, did not respond to requests for details about the average length of stay in solitary or guidelines for such punishment, but did tell The Crime Report that only 27 of Maine’s 2263 prisoners are currently confined this way.

“They're stripped of any contact with the outside world. After just a brief time of that you start breaking down,” says Judy Garvey, founder of a group of volunteers who conduct literacy, art and computer classes at Maine's Hancock County Jail. “Most will get out of prison and not be in great shape. We know it's not healthy.”

According to Tapley's reporting, prisoners in Maine's supermax are locked in bathroom-sized cells 23 hours a day, with one hour of outdoor time, weather permitting (a dubious distinction in Maine ), five days a week. They have no access to radios or television (a fact that has prompted several hunger strikes) and have to shower wearing handcuffs and leg irons.

“You put mentally ill people in this environment and they go berserk,” says Tapley. “They become much more ill and start to throw feces, cut themselves or attempt suicide–which gets them more time on their sentence. It’s insanity.”

Jesenia Pizarro, an assistant professor of criminal justice at Michigan State University who has written about supermax prisons, says that national data on who is segregated, for how long, and whether the segregation works to decrease violence in prisons or tame unruly inmates is woefully inadequate.

“We spend so much money on these prisons, but we don't know if they work,” says Pizarro. “Wardens and corrections officials swear by it, but no one has actually done a comprehensive study.”

A Fringe Movement Goes Mainstream

Until recently, the movement to limit solitary confinement was mostly focused on keeping the mentally ill out of isolation.

“The mentally ill are disproportionately represented among prisoners in segregation,” reads “Ill-Equipped” a 2003 report by Human Rights Watch. Pizarro agrees. “This notion of 'the worst of the worst,' it's not really true,” she says. “Many of these people are the mentally ill who corrections officers can't handle.”

Intuitively, it's easy to understand why the mentally ill–who often end up in prison because their communities lack social services to help them manage their illness–would have trouble, especially without consistent mental health care (which many prisons lack) following the strict and sometimes arbitrary rules involved in life behind bars. And the more you break the rules, the more likely you are to get thrown in the hole.

“The mentally ill are ill-equipped for prison and prison is ill-equipped for the mentally ill,” says Jamie Fellner, a senior counsel with Human Rights Watch.

Early last year, New York passed a law limiting solitary confinement for mentally ill prisoners, and Illinois State Rep. Julie Hamos recently proposed similarly legislation. Rep. Schatz's bill, which Feller calls “unique,” would be the first not specifically tailored to the mentally ill.

The conversation about isolation began to change as the country learned of abuses at Abu Ghraib and Guantanamo Bay. Suddenly, the American public was forced to consider whether long-term isolation was torture, and the outrage both encouraged and frustrated the activists who've been fighting solitary stateside.

“For those of us who understand American prisons, [the response was] 'what else is new?' says Garvey. And then in March of this year, The New Yorker magazine published an article by Atul Gawande, an author, surgeon and professor at Harvard, called “Hellhole.” The subhead read: “The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?”

“'Hellhole' had a lot of influence giving credibility to the people who see the insanity of the system; he has the weight of science behind him,” says Tapley.

Prior to Gawande's comparison of the experience of American prisoners enduring long-term isolation to the experience of prisoners held at Guantanamo Bay, the struggle to reveal what they see as the unacceptable psychological toll that solitary can take on an individual was mostly left to reporters, academics and groups like the American Friends Service Committee and Human Rights Watch. In fact, Tapley says some of the best research on the subject has been done by the inauspiciously named Maoist International Ministry of Prisons.

While many people seem open to the idea that solitary confinement of the mentally ill may constitute something akin to cruel and unusual, the jury is still out on whether prolonged isolation can actually cause mental illness.

“Gawande's article was good for galvanizing people, but I don't think you can compare Terry Anderson to an American prisoner,” says Fellner, who points to the fact that Anderson (the American journalist who was kidnapped by Hezbollah and held in confinement in Lebanon for seven years), lived in constant fear of being killed by his captors and was unaware of where he was being held.

“Solitary confinement in the U.S. is more banal and less horrifying – but it's still a terrible thing to impose on someone without a damn good reason,” she continues. “To make his point, I think Gawande overstates the point. Many more people don't go crazy in solitary, but they still suffer.”

If Gawande's New Yorker article introduced the notion of solitary confinement as torture to the nation's chattering classes, and Rep. Schatz presented it to lawmakers, the issue's appearance on the Law & Order franchise marks its official entrance into the national conversation. In last week's episode, entitled, “Solitary,” the show's main character, Detective Elliot Stabler, played by Christopher Meloni, elects to have himself locked in “the hole” to test the theory.

In the language of television, Stabler's experience is clear: First he does sit-ups, then push-ups, then he lays down and sleeps. He is awaken by a plate of food sliding in. What time is it, he asks. No answer. More push-ups, more sleep. Soon he starts to look nervous, then vigilant, then completely paranoid. He begins hearing things. He goes back to sit-ups. He paces. He befriends a cockroach. Finally, he begins muttering to himself.

When the guard comes to rescue him from his experiment, Stabler lunges at the man, shouting, I said three days, not a week! It was three days, says the guard.

Though Stabler is convinced, at the end of the show, Donovan's defense doesn't work, and when the jury reads the “guilty” verdict, he bends over and knocks his head on a table. Then he jumps up, rolls up his sleeve and begs the judge for the needle.

“Put me out of my misery,” he cries. “You'd do it to a dog – do it for me.”

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Julia Dahl is a Contributing Editor at The Crime Report.

Photo by teachandlearn, via Flickr.

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