Prisoners who are confined to solitary or supermax facilities should receive proportional reductions in their terms behind bars, proposes a forthcoming paper in the Santa Clara Law Review.
The proposal represents a step on the road to abolishing the “brutal” supermax system, which subjects incarcerees to physical and mental hardships that arguably violate the Constitution and represent a form of torture, say the paper authors.
“We should send offenders to prison as punishment, not for punishment,” write Mirko Bagaric, Dean of Law at Swinburne University in Melbourne, and Jen Svilar, a juris doctor candidate at the University of Tennessee College of Law.
According to the authors, approximately 60,000 inmates are held in supermax conditions in prisons at any given time across the U.S., where they are kept in restrictive housing and isolated from the general population for at least 22 hours a day.
Such forms of confinement, usually imposed for disciplinary violations or in some cases for the protection of themselves or other prisoners, contradict the supposed rehabilitative mission of the corrections system— and prisoners experiencing them who are eventually released into society often reoffend, the authors wrote.
Just as significantly, the experience of supermax confinement can permanently traumatize an individual long after he or she has been released, “seriously damaging their ability to rejoin society.”
The authors cite the case of Kalief Browder, 22, who spent three years in solitary in New York’s Rikers Island facility waiting for trial. He committed suicide about two years after he was released.
“Unfortunately, Kalief was not an anomaly,” the authors wrote, citing statistics showing high rates of suicide among incarcerees or ex-incarcerees who were held in supermax for extended periods of time.
The study proposes that inmates should get two days’ credit towards the expiration of their prison term, or a “sentencing discount,” for every day spent in supermax confinement.
“Thus, for example, if a prisoner spends all of his or her term in supermax conditions, then he or she would be released from prison at the expiration of half of the prison term,” the authors say.
They add their proposal would not apply to two classes of prisoners: those serving life terms, and those convicted of “serious” violent or sexual offenses, who are at risk of re-offending, as determined by the application of a “risk assessment instrument.”
They conceded that, while they believe supermax confinement should be abolished altogether because it violates international prohibitions against torture and amounts to the kind of “cruel and unusual punishment” banned under the Constitution, their proposal was a way to disincentivize prison officials from using it arbitrarily as a punishment.
Lawmakers and corrections authorities “have a motivation in ensuring that offenders are not released prior to the expiration of their sentence,” the authors wrote, arguing that their proposal therefore could “lead to firm guidelines limiting the use of supermax conditions to situations when it is absolutely necessary.”
The authors said an important consideration in limiting the use of supermax confinement was evidence showing that African-American inmates were disproportionately represented in the prisoner population forced into administrative segregation.
In a 2017-2018 study of 33 California prisons, African-American men comprised 46.1 percent of the inmates confined to supermax conditions, “compared to 42.5 percent of the total male general prison population.”
Inmates have reported that conditions in isolation, where they are confined to an 8 by 10-foot cell without contact with other prisoners or access to the amenities available to the general prison population, can slowly drive them “insane.”
The study quoted the description of isolated confinement by the late Sen. John McCain, who spent two years in solitary as a prisoner of war, as an “awful thing . . . it crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”
“It should not surprise anyone,” the authors wrote, citing another account, “that many inmates in solitary have become so desperate for relief that they [have] set their mattresses afire, [torn] their sinks and toilets from the walls, ripp[ed] their clothing and bedding, and destroy[ed] their few personal possessions, all in order to escape the torture of their own thoughts and despair.”
In a joint investigative report by Vice News and The Marshall Project, ex-inmate Travis Dusenbury, who spent ten years in a supermax prison, recalled living in a cell where “every single thing [was] made out of concrete. The walls, floor, the desk, the sink, even the bed—a slab of concrete.”
The full paper can be accessed here.
This summary was prepared by TCR staff writer Andrea Cipriano