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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

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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.

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.

2

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.

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.

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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.

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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

Article 10.1.

The Human Rights Committee, General Comment No. 21[44], article 10 (1-​3) 1992.

20 Principle 7.

21 CAT, Visit report, Denmark, 1. May 1997, para. 186.

22 CRC/​C/​15/​Add.273, “Denmark”, 30 September 2005, para. 58 a.

23 See Smith, “Solitary Confinement.”

24 Rule 60.5.

19

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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.

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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.

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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.

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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.

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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.

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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,

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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