Solitary Confinement: Can the Courts Get Inmates out of the Hole?

Solitary Confinement: Can the courts Get Inmates out of the Hole?

Mariam Hinds & John Butler*

In the last several years, solitary confinement has leapt to the attention of lawmakers, prisoner rights advocates, and the media. Disturbing accounts of prisoners who have been in solitary confinement for ten, twenty, even thirty years in California prisons have begun to emerge and demand the public’s attention. With the judicial, legislature, and executive branches all beleaguered by cases, bills, reforms, and proposals for amending the State’s solitary confinement practices, California stands on the precipice of a major reform movement. But the type of reform that California should aspire to achieve is not that often produced by the courts. Historically, in cases challenging solitary confinement, the courts have tailored their remedies to address the specific injury that violates the plaintiffs’ constitutional rights. Rather than slowly chipping away at solitary confinement through endless litigation in the courts, structural reform should be pursued through the legislative and executive branches of government. By learning lessons from other states such as Maine, New York, and Colorado who have successfully reformed their solitary confinement practices, California can become a leader in the humane and fair treatment of its prison population.

Introduction

Historically believed to be a method for encouraging offenders to repent for their sins and rehabilitate, solitary confinement is now used as a tool for controlling, managing, and punishing inmates in prisons. As awareness of the conditions in solitary confinement emerge—extreme sensory deprivation, exceptionally restricted movement, limited access to showers and other basic materials—a movement has grown in California calling for a reexamination of both the routine use of solitary confinement as a management tool as well as the policies and practices that govern how inmates are assigned to, live in, and exit solitary confinement. This movement has been bolstered by emerging studies and research verifying the deleterious effects that solitary confinement has on the mental and physical health of inmates as well as by personal accounts of prisoners who have gone decades without so much as touching another human being’s hand because of their assignment to solitary confinement.

As in cases where the constitutional rights of a population are threatened, the courts have become the primary vehicle for attacking the use of solitary confinement in California. Inmates have filed lawsuits against the California Department of Corrections and Rehabilitation (“CDCR”) and have won some victories but also suffered some defeats. Dissatisfied with the lack of progress, hunger strikes have broken out, including the most recent which involved over 30,000 inmates refusing food across California’s prisons. Faced with lawsuits, growing discontent amongst prisoners, and an increasingly engaged public, California stands on the precipice of a fundamental reexamination of solitary confinement as a penological tool.

But what type of change will suffice? This Note argues that piecemeal reform of solitary confinement is insufficient for addressing the constitutional violations that pervade it. Because the courts have typically crafted remedies that are narrowly tailored to address only the very specific injury alleged by inmates in solitary confinement cases, we argue that the courts are insufficient for creating structural reform to California’s solitary confinement practices. Reformers seeking structural change to solitary confinement practices should instead focus their efforts on the executive and legislative branches as the primary units of change. In the states where large-scale reform of solitary confinement has been successful, it has been driven by an executive administration responding to a crisis, or a legislative push, motivated by political pressure. Litigation has been useful for increasing visibility of the cause, and thus increasing the potential for political pressure, but court-ordered remedies have not been sufficient to address the structural inadequacies of solitary confinement practices.

This Note proceeds in six parts. Part I provides a brief history of the emergence of solitary confinement as a penological tool, tracing its evolution from a religion-based form of repentance to a tool of management and control. Part II discusses how solitary confinement is utilized in practice, addressing the conditions in solitary confinement, who ends up in solitary confinement, and how they emerge from it. Part III explores the impact that solitary confinement has on inmates by considering studies and research that investigate its efficacy and effect on inmates. Part IV surveys the legal cases that have been brought challenging solitary confinement, specifically noting the narrowness of the remedy. In Part V, we consider efforts in other states that have resulted in structural reform of their solitary confinement practices. Finally, in Part VI, we provide recommendations for effectuating structural reform to California’s solitary confinement practices.

I. Historical Background

The modern notion of solitary confinement emerged in the United States as a result of a penological revolution led by American Quakers in the 19th century that resulted in the development of penitentiaries.[1] Believing that society (and its accompanying vices) was responsible for corrupting the individual, isolation from the community through imprisonment was determined to be the most effective means of rehabilitating the offender.[2] “In forced isolation, prisoners would have nothing to do but consider the evil of their prior bad acts, repent, and reform themselves.”[3] Therefore, isolation in penitentiaries replaced the infliction of pain (whipping, for example) and shaming as the primary modes of punishment.[4]

The first solitary confinement cells were constructed in 1790 at the Walnut Street prison in Philadelphia and featured sixteen eight by six by ten foot cells designed to house the most serious and wicked offenders in complete isolation.[5] Prisoners were isolated for the entire duration of their sentences and “permitted to speak with only a limited number of prison guards and a few preselected visitors.”[6] Prisoners did not know their fellow inmates’ identities and “extreme measures,” such as covering prisoners’ heads with hoods, were used to maintain this system of isolation.[7] “This lonely asceticism, presumably, would give the prisoners of Walnut Street time to rethink their lives, and meditate on self-improvement.”[8] In other words, it would give them time to repent.

However, despite its promising philosophy, the deleterious effects of solitary confinement soon emerged. Reports of prisoners going insane, committing suicide, lapsing into catatonic states, and displaying an inability to function began to appear, and by the early- to mid-nineteenth century, the routine use of solitary confinement was abandoned because of these adverse consequences.[9] But while sentences served exclusively in solitary confinement were not routinely imposed, serving time in isolation for a limited duration still occurred.[10] For example, a prisoner facing the death sentence may serve the final months before his execution in solitary confinement or an additional punishment of time in solitary confinement may be imposed on a repeat offender.[11] By the beginning of the twentieth century, “[l]ong-term solitary confinement was no longer commonplace,” and it was primarily “reserved as punishment for prison infractions.”[12]

This trend reversed dramatically when the federal government opened two prisons designed exclusively to house the nation’s worst offenders—Alcatraz Prison in 1934 and the United States Penitentiary in 1963.[13] Both facilities relied heavily on segregation to manage and control these offenders.[14] States soon began replicating the federal government, especially beginning in the late twentieth century when the nation experienced a rapid explosion in its prison population.[15] In California, during the 1980s and 1990s, the prison population increased at a significantly faster rate than the state’s population as a whole.[16] The prison population grew so rapidly that it quickly outstripped the number of available prison beds, and prison construction projects failed to keep up with the growth.[17] This led to “extreme overcrowding” and “serious management and control problems” resulting from the reintroduction of solitary confinement.[18] Yet prison administrators believed that order could be maintained despite overcrowding if troublesome prisoners could be segregated from the general population.[19] This philosophy was especially popular amongst officials managing gang membership and violence within the prison. During this period, “the rise in power of prison gangs . . . made supermax facilities increasingly popular.”[20]

In addition to using solitary confinement as a means for controlling gangs within the prisons, California prison officials argued that solitary confinement was necessary to manage a new, more violent type of offender.[21] Prisoners were depicted as “rapacious monsters” who were more dangerous and more aggressive than their predecessors.[22] “In response, a penal philosophy . . . has emerged in which prison systems are now using long-term solitary confinement as a proactive policy of management and control.”[23]

II. Practice

A. What Is Solitary Confinement?

The California Department of Corrections and Rehabilitation (“CDCR”) does not recognize “solitary confinement” as a term or concept.[24] Rather, CDCR classifies and reports the number of inmates in “single-cell” housing.[25] The classification “single-cell” housing covers a wide array of inmates including people in segregation housing units (SHUs), Administrative Housing Units (ASUs), or the general population.[26] It includes people who are housed in single-cell units voluntarily and involuntarily.[27] Additionally, some inmates in SHUs are housed with another person but still subject to the harsh conditions and regulations typically associated with solitary confinement.

CDCR’s classification system makes it difficult to draw broad generalizations about the conditions of solitary confinement in California. However, in examining the conditions at Pelican Bay State Prison—the facility that accounts for the largest number of single-cell housing cells in the state—a general picture of solitary confinement begins to emerge.

Opened on October 1, 1989, Pelican Bay State Prison was, as Governor George Deukmejian boasted, “a state-of-the-art prison that will serve as a model for the rest of the nation.”[28] It was “[t]he first supermax prison, built solely to house prisoners in segregation.”[29] Sprawling across 270 acres in Crescent City, California, Pelican Bay is considered “a modern prison [that] employes cutting-edge technology and security devices.”[30] The prison consists of eight-cell “pods” with four 500-foot corridors.[31] Armed control booth officers monitor each set of corridors from a central control room.[32] They monitor inmates via video cameras, and there are in-cell speakers and microphones for communication with control booth officers.[33] Three locked doors separate a prisoner from an armed control booth officer, and all the cell doors are controlled electronically.[34]

Figure 1: Administrative Segregation Unit at Mule Creek State Prison

SHU cells remain locked for twenty-two and one-half hours per day.[35] SHU inmates exercise for at most one and one-half hours per day in a space measuring twenty-eight by twelve feet.[36] When leaving their cells, they are escorted by two armed guards and wear waist restraints and handcuffs.[37]

SHU is designed to reduce visual stimulation and reinforce a sense of isolation from the outside world.[38] “[N]o direct sunlight ever reaches the[] cells.”[39] Each cell has “a concrete stool, concrete bed, concrete writing table, and a toilet and sink made of heavy stainless steel.”[40] Prisoners eat twice per day off of trays pushed through slots in cell doors.[41] They may shower three times per week but may not participate in classes or work.[42]

B. Who Is in Solitary Confinement?

Craig Haney, a professor at the University of California, Santa Cruz testified before the California legislature in 2014 that “there is simply no other prison system in the country that I know of that places so many prisoners in isolation, and no other state that places them remotely for as long as we do.”[43] CDCR’s Code of Regulations (the “Regulations”)[44] permit inmates to be placed in SHU for both indeterminate terms—known as an “administrative” term in the Regulations—and determinate periods of time.[45] Recently, accounts of prisoners spending up to forty years in SHU have begun to emerge.[46]

Who ends up serving their prison sentences in these conditions? The Regulations outline several “Serious Rule Violations” that permit placement in segregation for a determinate period of time.[47] These include “[t]attooing or possession of tattoo paraphernalia,” “[p]ossession of five dollars or more without authorization,” “[p]articipation in gambling,” and “[p]articipation in a strike or work stoppage.”[48] In addition to inmates who commit disciplinary infractions, two populations draw special attention—from researchers, activists, and prison officials—for their presence in solitary confinement: inmates with mental illnesses and gang members.

1. Inmates With Mental Illnesses

In the 1990s, mentally ill inmates in California prisons filed a class action against the State, alleging that CDCR’s failure to provide constitutionally compliant mental health care violated their Eighth Amendment rights.[49] The use of solitary confinement on mentally ill inmates has been a particular area of concern for the Coleman plaintiffs. Despite gaining a favorable decision in the Supreme Court that they hoped would remedy the constitutional violations,[50] the plaintiffs continue to identify deficiencies with mentally ill inmates in solitary confinement.

Figure 2: Administrative Segregation Unit Housing Board with Pink or Purple Cards Indicating Lack of Bed[51]

In a recent declaration, Coleman plaintiffs’ counsel Michael Bien alleges that mentally ill prisoners are often placed into segregated housing units for non-disciplinary reasons including “‘safety’ reasons, pending transfer to other yards, and recent discharge from [SHU].”[52] This phenomenon of holding prisoners in segregation even when they have not committed a rule infraction is called “LOB” for “lack of bed.”[53] Figure 2 demonstrates how pervasive this practice of housing inmates in segregation for no fault of their own is.

Moreover, “prisoners held in segregation units for no fault of their own are subjected to the same harsh custodial measures imposed throughout segregation units, including blanket strip searches, indiscriminate use of cages for mental health treatment, and escorting in cuffs.”[54] Figure 3 illustrates the severity of these practices by showing a group of inmates participating in group therapy at Mule Creek State Prison.[55] Placing mentally ill inmates in these conditions is dangerous, especially given the suicide rate difference in segregated housing and non-segregated housing.[56]

Figure 3: Group Therapy in ASU at Mule Creek State Prison

The Coleman plaintiffs identified part of the reason for the presence of mentally ill inmates without disciplinary infractions in segregated housing: “systematic shortages of Special Needs Yards beds.”[57] Because the plaintiffs have identified unceasing constitutional violations, they will continue to advocate for changes to the policies governing the placement of mentally ill inmates in solitary confinement.

2. Gangs or Security Threat Groups

Recent revisions to the Regulations, which became effective on October 17, 2014, have significantly changed how CDCR classifies and handles gang members and associates. For example, the Regulations have changed the relevant terminology: a gang now refers to an organization that commits acts “outside of the California Department of Corrections and Rehabilitation jurisdiction,” whereas a Security Threat Group (“STG”) operates within CDCR’s jurisdiction.[58] However, because this revision is relatively new and many of the sources relied upon in this Article use data collected prior to the change in terminology, the terms “gang” and “security threat group” will both refer to organizations operating within CDCR’s jurisdiction.

a.  The Regulations Before October 17, 2014

Prior to the Regulation’s recent revisions, it was estimated that about 50% of SHU was comprised of inmates who had not necessarily committed any rule violation at all.[59] Instead, inmates participated in a gang validation process that could result in an indefinite placement in SHU.[60] Gang validation was the process by which prison authorities verified that an inmate was a member or associate of a gang. The Regulations defined those terms as follows:

       A member is an inmate/parolee or any person who has been accepted into membership by a gang. This identification requires at least three (3) independent source items of documentation indicative of actual membership. Validation of an inmate/parolee or any person as a member of a prison gang shall require at least one (1) source item be a direct link to a current or former validated member or associate of the gang, or to an inmate/parolee or any person who is validated by the department within six (6) months of the established or estimated date of activity identified in the evidence considered.[61]

       An associate is an inmate/parolee or any person who is involved periodically or regularly with members or associates of a gang. This identification requires at least three (3) independent source items of documentation indicative of association with validated gang members or associates. Validation of an inmate/parolee or any person as an associate of a prison gang shall require at least one (1) source item be a direct link to a current or former validated member or associate of the gang, or to an inmate/parolee or any person who is validated by the department within six (6) months of the established or estimated date of activity identified in the evidence considered.[62]

This gang validation policy was reviled amongst inmates and drew considerable negative attention from advocates and the public. Prisoners alleged that the independent source items were often innocuous materials found in their cells unrelated to gang membership and affiliation.[63] Furthermore, a source could have been a confidential allegation made by fellow prisoners that the accused had no way of challenging.[64] Countless stories emerged from inmates demonstrating the flimsiness of the validation process. For example, Richard Johnson alleged that “he was denied inactive gang status after prison officials discovered a book about [former Black Panther] George Jackson . . . in his cell.”[65] Another inmate claimed that he was accused of promoting gang activity and written up for saying “Hey, Abdul” and “All right, Vitani” to fellow inmates on his way in and out of the clinic.[66]

Perhaps responding to the negative attention and publicity that the gang validation process had garnered, CDCR significantly revised its practices and implemented a revised set of Regulations that became effective on October 17, 2014.

b.  The Regulations After October 17, 2014

The revised Regulations create two categories of prison gangs known as STG-I, which include STGs that post the greatest threat, and STG-II, which may include “traditional disruptive groups/street gangs.”[67] The Regulations retain the distinction between STG members and associates, defining those terms as follows:

Member: Any offender or any person who, based on documented evidence, has been accepted into membership by a STG. . . . Initial [v]alidation of an offender as a member requires at least three (3) independent source criteria items with a combined value of 10 points or greater coupled with information/activity indicative of a member.

. . .

Associate: Any offender or any person who, based on documented evidence, is involved periodically or regularly with the members or associates of a STG. . . . Initial validation of an offender as an associate requires at least three independent source criteria items with a combined value of 10 points or greater coupled with information/activity indicative of an associate.[68]

Validation as a member or associate of a STG-I requires that one of the source items be a direct link to a current, former, or soon to be (within 6 months of the date of activity) validated member or associate of an STG-I.[69] The source items referenced above include symbols, informants, debrief reports, written materials, photographs, tattoos, communications, legal documents, and visitors.[70] Each type of source item is assigned a corresponding point value that is used in the determination of whether an individual is a STG member or associate.[71]

“[A] validated STG affiliate is deemed to be a severe threat to the safety of others or the security of the institution and will be placed in a SHU for an administrative term when [certain] criteria are met.”[72] STG-I members will be placed in SHU after being validated and confirmed by the Institutional Classification Committee (“ICC”).[73] STG-I associates will be placed in SHU if the source items used in the validation process document certain serious STG behavior.[74] STG-II members and associates will be placed in SHU if, “as part of initial validation, source items include two occurrences, both of which have occurred within four years of the validation date, of [certain] serious documented STG behavior or activity.”[75]

C. How Do You Leave Solitary Confinement?

According to the Regulations, there are a few ways of leaving SHU.[76] The first is at the end of a determinate sentence or after 11 months in SHU unless (1) the inmate has an unexpired minimum eligible release date from SHU,[77] (2) releasing the inmate would pose a severe danger to the institution, its occupants, or an open investigation into criminal activity or serious misconduct, or (3) the inmate has requested a continued stay.[78]

The second method is for an inmate to get paroled while in SHU.[79] If that inmate returns to prison, either because of a parole violation or commission of a new offense, that SHU term can be reimposed.[80]

For gang members in SHU, a period of inactivity—abstention from gang activity—or dropping out of a gang can eventually result in departure from SHU. This can occur through participation in a debriefing process or through participation in the Step Down Program (“SDP”). With respect to the debriefing process, the Regulations provide that “[a] validated STG affiliate shall be considered for release from a SHU . . . after the inmate is verified as a STG dropout through a debriefing process.”[81] “Debriefing is the process by which a STG coordinator/investigator determines whether an offender (subject) has dropped out of a STG.”[82] The debriefing process may involve up to two steps: an interview and an observation phase.[83] During the interview, inmates “provide staff with information about the STG’s structure, activities, and affiliates.”[84] The Regulations state that this information is gathered so that the staff can “reasonably conclude” that the inmate has left the gang and so that the subject can be reclassified.[85] “A requirement of the interview phase is that the offender provides staff a written autobiography of their STG involvement, which is then verified by staff for completeness and accuracy.”[86] Following the interview phase, the inmate may be observed for no longer than 6 months while living in housing with other debriefing inmates.[87]

Participation in the Step Down Program—a new program that became effective with the revised Regulations—is also an avenue for leaving SHU.[88] The Step Down Program (SDP) is a five-step, incentive-based program intended to manage, monitor, and transition STG affiliates in SHU to the general population.[89] Steps 1 and 2 are designated to house the most serious STG affiliates that are determined to pose the greatest threat and are “primarily intended as periods of observation.”[90] Inmates who are in Steps 1 or 2 are reviewed by the Institution Classification Committee (“ICC”) every 180 days and, although these steps are designed to last 12 months each, the ICC can accelerate an inmate’s progression.[91] Step 3 begins inmates’ reintegration and offers programming, privileges, and continued monitoring.[92] Step 3 lasts for a minimum of 12 months, and the ICC reviews inmates at least every 180 days.[93] Step 4 continues the reintegration process, lasts at least 12 months, and presents inmates to the ICC every 90 days.[94] Step 5 permits inmates to be placed in the general population for a 12-month observation period.[95]

While it is still unclear how the recent revisions to the Regulations will affect the ease or difficulty of leaving SHU, the pervading sentiment prior to the revisions was that “the only way you’ll leave is to ‘parole, die, or debrief.’”[96] These are the words of a prison guard to an inmate in SHU. This phrase, often referred to as “Parole, Snitch, or Die,”[97] characterized the futility of attempting to leave SHU for many inmates. Even if they are successfully released from SHU, perhaps by going through the debrief process, some inmates still feared retaliation in the general population for “snitching” on other inmates.[98]

III. The Impact of Solitary Confinement on Inmates

No one argues that solitary confinement does not have an impact on inmates. Even advocates of the practice justify the added stress as righteous punishment for prison indiscretions. The policy debate instead focuses on the extent of the impact on prisoners and whether that impact rises to the level of “torture.”[99] The psychological debate over impact, however, is more nuanced. There is no real disagreement in psychological literature about whether or not solitary confinement has a negative effect on the prisoner’s psyche.[100] Instead, the psychological literature focuses on isolating aspects of the solitary experience to see what causes the most damage, and figuring out what symptoms are common across prisoners experiencing solitary confinement.

Solitary confinement can have a negative impact on inmates in a number of ways. Inmates miss out on programs and opportunities that are offered by the prison. They often aren’t able to see their loved ones, are stripped of the very limited amount of control they have in prison, are left without human contact and sensory stimulation, and are often left in a state of limbo unsure when they will be removed from solitary. After reviewing the bulk of studies—historical and contemporary—on the effects of solitary confinement on the individual, psychologist Craig Haney summed up the thrust of the literature: solitary confinement is “psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term emotional and even physical damage.”[101]

This Part will examine and highlight some of the leading literature on the psychological effects of solitary confinement on prisoners. It begins with studies outside of prisons that shed light on the solitary experience, moves to studies of the psychological effects of solitary on actual prisoners, and concludes with a discussion of some of the qualitative work done on the issue in the form of sociological research and prisoner narratives. While an exhaustive study is beyond the scope of this Note and better left to those with more expertise, lawyers and policymakers examining solitary confinement will do well to keep the physical and psychological effects of the practice in mind.

A. Non-Prison Research

Much of the scholarship that informs our understanding of the psychological effects of solitary confinement in prisons comes from studies in analogous settings that test the effects of social isolation and sensory deprivation in other contexts. Early scientific studies shedding light on the effect of solitary confinement occurred during the Korean War, when researchers attempted to study the role of isolation and sensory deprivation in possible “brainwashing” of American prisoners of war by the Korean military.[102] Best exemplified by the movie The Manchurian Candidate, the studies were aimed at a very specific type of sensory deprivation—relatively short-lived and occurring in an environment not perfectly analogous to American prison. Nevertheless, the early experiments shed light on the effect that “conditions aimed at reducing, altering or by some means or other, interfering with a person’s normal stimulation” might have on a prisoner in isolation.[103] Researchers consistently found that human subjects had difficulty dealing with even short-term sensory deprivation. In one study, participants were placed in a soundproof room with goggles and earphones so that they could neither see nor hear other people in the room.[104] In a similar study conducted in a sound proof room, participants were allowed to leave whenever they wanted.[105] Most participants left after just one or two days in that situation, citing “anxiety” and “panic” as the reasons for quitting.[106] As one study summarized, “‘the absence of stimulation leads to the debilitation of behavior, making the individual less efficient and inducing strong affective states which are associated with marked changes in motivation.’”[107] In other words, sensory deprivation can seriously affect an individual’s mental state.

A different, but related strand of research studied the positive effect of social contact on people. These studies stressed the importance of “social support” and supportive interactions to one’s physical and mental health.[108] As a corollary to these studies, researchers have found that where social connectedness is lacking, for example in isolated elderly populations,[109] or unmarried or unemployed people,[110] patients are more likely to need psychiatric services. Although the social isolation of mental patients has been advocated by some as a treatment, studies have shown that when confined mental patients are segregated from the hospital population and left in isolation, they similarly suffer “substantial deleterious physical and (more often) psychological effects.”[111] This means that when a person has a pre-existing mental health condition, time in solitary can exacerbate the effects of that condition.

None of these early studies perfectly mirrored the conditions of solitary confinement, but they shed light on the contours of the human mind’s ability to deal with isolation in a way directly relevant to prisoners in isolation. The conditions of these studies were often more severe than contemporary solitary confinement, but they also all lasted for much shorter periods of time than the often-indefinite period of detention for inmates. While they had their limitations, these analogous studies were effective at isolating the impact of isolation or connectedness on the psychology of people exposed to extremes. Studies of prisoners built on this research and applied the findings to the specific context of prison.

B. Studies of the Psychological Effects of Solitary Confinement

Part of the reason non-prison studies have been so useful is that it has been difficult for researchers to accurately study the effects of solitary confinement on actual prison inmates in any sort of controlled study. The most common research design involves asking for inmate volunteers to undergo solitary confinement for a certain amount of time to study the reactions.[112] This has a few obvious flaws. First, the subjects volunteered for solitary, and thus were likely more mentally capable of handling the stress than a randomized sample.[113] Second, the limits of the experiment were known—or at least could be presumed—by the subjects. Previous studies have shown that where a subject knows the duration of their time in isolation, it is easier to bear.[114] Finally, the subjects in most controlled solitary experiments generally have a much greater degree of control than actual solitary prisoners. They decide whether or not to participate and when to stop participating in the study. This makes it difficult to study the lack of control felt by actual inmates in solitary.

Despite these flaws, much has still been learned about the psychological effect of solitary confinement through the study of prisoners. In one study in Maine of prisoners held indefinitely in solitary confinement without a given reason, the authors found that almost every prisoner in the isolation unit had attempted suicide.[115] Suicide, or self-harm, is used as an indicator of extreme mental distress, and it is remarkably common among prisoners in solitary confinement.[116] This is further supported by a statistic quoted in the Associated Press that of the forty-four prisoners in the California prison system who committed suicide in 2005, 70% were in solitary confinement.[117] Suicide is a common theme throughout the studies.

Several large-scale studies of prisoners in general, and prisoners in solitary confinement illuminate the effect of the practice on the psyche. One of the largest and most comprehensive studies of prison mental health was Hans Toch’s Mosaic of Despair, a 1992 study of prisoners in the New York prison system.[118] Though not limited to solitary confinement, Toch’s study concluded that “isolation panic” was “sharply prevalent” in solitary confinement.[119] Toch specifically distinguished between normal imprisonment, which was tolerable for many inmates, and isolation, which was not tolerable.[120] “Isolation panic” was characterized by rage, breakdowns, psychological regression, and self-mutilation.[121] Another researcher, Stuart Grassian, observed isolated prisoners in Massachusetts.[122] He too remarked on the great anxiety felt by prisoners in isolation. Prisoners were confused, and suffered hallucinations.[123] Several of the prisoners studied attempted suicide, and almost all of the prisoners also reported having never felt that way before being placed in isolation.[124]

Finally, in California Craig Haney has done extensive research on the psychological effect of incarceration in the SHU at Pelican Bay.[125] More than four-fifths of the prisoners studied suffered from anxiety, headaches, troubled sleep, and lethargy.[126] More than half also suffered from nightmares, heart palpitations, and “impending nervous breakdown[s].”[127] Nearly half suffered from hallucinations, and a quarter had suicidal tendencies.[128]

Each of these studies highlights the severe mental anguish of inmates in solitary confinement. Taken together, they represent a stunning body of work on the effect of isolation on the human psyche. At base, every study shows a sharp increase in anxiety for nearly every prisoner involved. This result may be expected and even encouraged by prison officials, since solitary is used as a punishment for prisoners who have broken prison rules. In other words, supporters of the practice argue it should be more uncomfortable than prison; otherwise it would not be an effective punishment. This may be true for well-adjusted prisoners who are only kept in solitary for a short time, but as psychologist Terry Kupers testified in a Wisconsin case, confinement of “prisoners suffering from serious mental illness . . . is an extreme hazard to their mental health and well-being.”[129] When prisoners with existing conditions are placed in solitary, it “causes irreparable emotional damage and psychiatric disability.”[130]

C. Descriptive Accounts

In addition to clinical and scientific studies, much can be gleaned about the psychological effect of solitary confinement from descriptive accounts by those who have experienced it or those who witnessed solitary confinement and wrote about what they saw. These are, in many ways, the most useful and the most difficult to read. As one solitary inmate in Pelican Bay explained: “Unless you have lived it, you cannot imagine what it feels like to be by yourself, between four cold walls, with little concept of time, no one to confide in, and only a pillow for comfort—for years on end.”[131] Thus, the words of inmates themselves are often the best descriptor of the effects of solitary. Despite the difficulties of communicating from solitary, there are many prisoner accounts about the treatment they receive in solitary confinement. Many of the stories are nearly philosophical in their analysis of their condition, shedding light on not just the psychology of solitary, but also offering a sort of existential commentary on the impact of the practice. One of the most meditative of this genre of prisoner narratives is the book-length memoir by Christopher Burney, who was arrested for supporting the French resistance during WWII and placed in solitary confinement for 15 months.[132] Burney talks about the slow deterioration of his mental state:

I soon learned that variety is not the spice, but the very stuff of life. We need the constant ebb and flow of wavelets of sensation, thought, perception, action, and emotion, lapping on the shore of our consciousness, now here, now there, keeping even our isolation in the ocean of reality, so that we neither encroach nor are encroached upon.[133]

Burney’s moving account of his time in solitary is a model followed by many prisoners and observers since.

More contemporary accounts have similarly meditated on the relationship between isolation, psychosis, and punishment. Robert Slater described the environment at San Quentin prison in the 1980s, when many of the prison’s inmates were in solitary confinement.[134] Slater described the symptoms suffered by prisoners in solitary:

[T]ension, irritability, sleeplessness, nightmares, inability to think clearly or to concentrate, and fear of impending loss of impulse control. Sometimes the anxiety is severe enough to be crippling. It interferes with sleep, concentration, work, and study and predisposes to brief psychotic reactions, suicidal behavior and psychophysiological reactions. It causes misperceptions and over-reactions. It fuels the cycle of violence . . . leading to more violence and terror.[135]

This description could have been taken from a psychological study, but is more evocative for coming from Slater’s actual experience with prisoners in solitary confinement. Prisoners themselves also express the psychological anguish of life in solitary. In the words of one prisoner: “I started hearing voices and losing control of my own thoughts . . . . I really started noticing more when I started being in the hole . . . . It just started getting worse for me.”[136] Gabriel Reyes, imprisoned for sixteen years in solitary confinement at Pelican Bay, described his cell as a “living tomb.”[137] He was not allowed physical contact for all of that time. He gives voice to his maladies in his own words: “I have developed severe insomnia, I suffer frequent headaches, and I feel helpless and hopeless. In short, I am being psychologically tortured.”[138] Other prisoners at Pelican Bay also complain of “chronic insomnia,” “hopelessness,” “anxiety and humiliation,” and “depression.”[139]

Like the scientific studies mentioned above, prisoner narratives from isolation are also far too limited. Though prison narratives in general have had a long history, prisoners in solitary are segregated from the outside world by design. Thus, the narratives we do have, while helpful, form a very small sample of prisoners and are most useful to elucidate and dramatize the scientific studies.

IV. Legal Standards

The conditions of solitary confinement have been litigated almost from its inception as a common American penal practice in the 18th century.[140] In the earliest successful challenge to solitary confinement in the United States, In re Medley, the Supreme Court decided that holding prisoners in solitary confinement in state prison after being sentenced to death “was an additional punishment of the most important and painful character” and was therefore forbidden under the ex post facto provision of the U.S. Constitution.[141] That same year, the Supreme Court first held that the Fourteenth Amendment incorporates the Eighth Amendment against the states.[142] Despite this, over the next fifty years the Supreme Court continuously acknowledged the use of solitary confinement as an extreme, but constitutional, form of punishment.[143] Only one case, decided in 1999 in a district court in Texas, has found solitary confinement unconstitutional if “conditions are so extreme as to violate basic concepts of humanity and deprive inmates of a minimal level of life’s basic necessities.”[144]

There are two constitutional hooks for bringing claims against solitary confinement—the Eighth Amendment and the Fourteenth Amendment. Each present their own challenges and opportunities and each has been used nationally and in California. In this section we will examine each constitutional rationale and look at how solitary confinement has been litigated in California. Scholars, such as Keramet Ann Reiter, have articulated the importance of litigation in shaping contemporary conditions of solitary confinement.[145] The history of solitary confinement litigation in California reveals the deep impact the cases have had on the practice of solitary confinement, but no case has cut to the core of the issues present. While litigation has been a worthwhile vehicle for relatively minor changes to a prisoner’s condition of confinement, reform has been piecemeal, solely in response to the specific circumstances raised in a particular suit. Despite recent ongoing challenges to the use of solitary confinement in California, an examination of past cases reveals that the most effective avenue for reform is most likely political, not judicial.

A. Eighth Amendment Challenges

The Eighth Amendment is both the most common and the most impactful avenue for solitary confinement litigation. When the Eighth Amendment was written, prisons barely existed in America.[146] The Eighth Amendment, then, was primarily concerned with the public displays of punishment that were common in that day.[147] It was, essentially, a prohibition against torture, but not excessive punishment.[148] By the early twentieth century, the Eighth Amendment was read to include prohibitions against punishment disproportionate to the crime committed.[149] This doctrine gets to the core of the concerns prisoners and advocates have with solitary confinement. While Fourteenth Amendment complaints address the process by which inmates are assigned to, or removed from, solitary confinement, Eighth Amendment complaints deal specifically with the conditions in which inmates are kept.

Despite doctrine allowing prisoners to challenge their conditions of confinement, litigation challenging solitary confinement under the Eighth Amendment has only had limited success. First, the bar for successful claims is high. Prisoners making an Eighth Amendment claim must show first that the prison conditions are “sufficiently grave” to result in denying “the minimal civilized measure of life’s necessities.”[150] The denial of those necessities must also pose a “substantial risk of serious harm.”[151] The second, and much harder, step is to show that prison officials were “deliberate[ly] indifferen[t]” to the inmate’s poor condition.[152] To show this, prisoners must prove that officials knew of the risk of harm to the inmate and deliberately ignored it.[153] Second, even if successful, most Eighth Amendment remedies address only the narrow circumstances of the violation. For example, litigation claiming an Eighth Amendment violation for inmates kept in solitary confinement without any exercise proscribed a minimum amount of exercise required for prisons to remain constitutionally compliant.[154]

Most solitary confinement litigation raises Eighth Amendment claims. Though the bar is high, courts have been amenable to claims that a particular aspect of solitary confinement in a specific case violates the Eighth Amendment.[155] Only one case has found that solitary confinement, as a whole, violates the Eighth Amendment.[156]

B. Fourteenth Amendment Challenges

The second primary area of prison condition litigation is the Due Process Clause of the Fourteenth Amendment. Fourteenth Amendment challenges generally require that the petitioner show that his or her right to life, liberty, or property is threatened “without due process of law.”[157] This avenue has had some limited success in ensuring that prisoners are not confined to solitary without some minimal process. Courts are very deferential to the administrative decisions of prisons,[158] but have found a protected liberty interest in avoiding placement into solitary confinement.[159]

The most notable case on this issue is Wilkinson v. Austin, which dealt almost exclusively with the question of what procedures were necessary to place a prisoner in solitary confinement.[160] Wilkinson arose out of a challenge to Ohio’s supermax prison: Ohio State Penitentiary. Wilkinson first acknowledged that there is a liberty interest in avoiding assignment to a restrictive housing unit.[161] The liberty interest is compared against the liberty of a prisoner in general prison population, so a short confinement in solitary would not likely raise a liberty interest because other prisoners could be expected to be “locked down” for short periods of time as well. The liberty interest protected in Wilkinson is really limited to long-term solitary confinement. Despite finding that a liberty interest existed for the prisoners in Wilkinson, the Supreme Court found that the program for assigning inmates to solitary in Ohio was constitutionally sufficient.[162] The Court applied a Mathews v. Eldridge[163] balancing test, weighing the process afforded to inmates against the needs and burdens of the state, to find that the Ohio system was constitutionally valid.[164] The Court found that Ohio’s interest in “prison management” was a “dominant consideration” and that “the safety of guards and prison personnel, the public, and the prisoners themselves” is the “State’s first obligation.”[165]

Fourteenth Amendment complaints are generally limited to process violations. While vital for inmates entering or exiting solitary, the procedure used to send inmates to solitary is not the central concern. Though wanton removal from general population to solitary without notice and/or without a known termination point might exacerbate the solitary experience, the isolation itself is the root cause of the psychological stress.[166] Thus, though flawed, the Eighth Amendment has consistently provided a better avenue for litigating solitary confinement for reformers.

C. Litigation in California

In California, inmates have challenged their solitary confinement on both Eighth and Fourteenth Amendment grounds. Early California litigation of conditions carved out various rights for prisoners, specifically remedying the problem presented in each case. The ongoing litigation of these rights led to the creation of supermax prisons, epitomized by the Pelican Bay prison on the northern border of California. Supermax prisons were built to be constitutionally compliant. Despite this, they became the target of frequent lawsuits claiming Eighth and Fourteenth Amendment violations. In California, litigation has been minimally successful at ensuring adequate procedures for placing inmates into and removing inmates from solitary, and in ensuring a minimum standard of treatment in solitary. Still, California litigation has not been successful in creating structural change to the solitary confinement program in California.

1. Early Conditions Cases

In the late 1970s, federal courts in California began to evaluate the constitutionality of prison conditions in the State’s solitary confinement units, used generally to punish inmates who had broken prison rules or for protective custody housing. In Wright v. Enomoto, the Northern District of California heard a class action suit challenging both the conditions in which prisoners were confined in solitary and the process used to send prisoners to solitary confinement.[167] The Wright court summarized the findings of fact regarding conditions in solitary as follows, in part:

Prisoners in the maximum security units are confined in cells approximately five feet wide by eight feet long. The cells are without fresh air or daylight, both ventilation and lighting being poor. The lights in some cells are controlled by guards. It is difficult for prisoners to get needed medical attention. . . . They are allowed very limited exercise and virtually no contact with other prisoners.[168]

After reviewing these conditions, the court concluded that “a prisoner confined in a maximum security unit suffers a loss of liberty much more severe than that experienced by a prisoner in the general prison population.”[169] The court also found that the administrative process for assigning prisoners to solitary confinement was insufficient.[170] The court remedied the procedural flaws by requiring that prisoners have notice before being transferred, as well as a hearing and representation at that hearing.[171]

Over the next decade, cases bounced between the district court and the Ninth Circuit, steadily expanding the suite of rights afforded inmates in solitary confinement. In 1983, for instance, the court ordered the California Department of Corrections to provide generally clean cells, bedding, clothing, and cleaning supplies to all prisoners.[172] The court also ordered that prisoners be allowed three showers and eight to ten hours of exercise per week and be permitted to visit with family members and friends.[173] These later cases also granted prisoners the right to be held “in an environment . . . reasonably free of excess noise,”[174] the right to access to personal hygiene supplies[AA: Citation needed], and the right to be housed in an environment with adequate lighting.[175] Though these cases granted protections to prisoners, no federal court found the act of solitary confinement itself unconstitutional. In fact, in whittling away at abject conditions, the California federal courts continuously upheld the use of solitary confinement in general, while tweaking reprehensible elements of the practice.

2. Pelican Bay Litigation

After years of minor, court-ordered tweaks to the practice of solitary confinement, policymakers around the country saw an opportunity to save costs by constructing whole new facilities that met the constitutional minimum requirements and avoided the costly ongoing litigation over the conditions of solitary confinement in existing prisons.[176] In California, during this time, the result was the construction of Pelican Bay State Prison.[177] As discussed in Part II.A, Pelican Bay houses the largest and most notorious Secure Housing Unit in the California prison system. The principle focus of solitary confinement litigation in California has been against Pelican Bay State Prison.

Madrid v. Gomez[178] is the most comprehensive attempt to eliminate solitary confinement in California through litigation to date. Madrid stemmed from a lengthy complaint filed by a class of prisoners in Pelican Bay prison. The class claimed violations of their First, Eighth, and Fourteenth Amendment rights through the regular use by prison officials of excessive force, isolation, insufficient medical care, lack of access to the courts, and lack of due process in the decision to be segregated.[179] When ruling on Madrid, the Northern District of California acknowledged many of the prisoners’ complaints and ordered serious reforms of the SHU at Pelican Bay.[180] Perhaps most importantly, Judge Thelton Henderson’s opinion is the first in California to grapple with the complicated relationship between mental health and solitary confinement. Judge Henderson wrote that the conditions in Pelican Bay violated the Eighth Amendment when imposed upon prisoners who were “already mentally ill, as well as persons with borderline personality disorders, brain damage or mental retardation, impulse-ridden personalities, or a history of prior psychiatric problems or chronic depression.”[181] Henderson continued, saying that solitary confinement, “as it is currently constituted, deprives inmates of a minimal civilized level of one of life’s necessities.”[182] This is extraordinary language found in a 128-page opinion that seems to be the first to really understand and care about the effect of solitary confinement on the mental health of inmates. Judge Henderson criticized the “deliberate, and often shocking, disregard for the serious mental health needs of inmates at Pelican Bay.”[183]

Though the court employed sweeping and condemning language to discuss the use of solitary confinement for the mentally ill, the opinion in Madrid was fairly limited. As Craig Haney and Mona Lynch explain, the Madrid court was “unable to extend its otherwise complex and nuanced understanding of the psychological forces at work in a punitive segregation unit to the critical task of directly modifying the totality of conditions that adversely affected the great majority of prisoners who experienced them on a long-term basis.”[184] In other words, the court balked at eliminating solitary confinement for all prisoners, accepting that “for many inmates, it does not appear that the degree of mental injury suffered significantly exceeds the kind . . . that courts have found compatible with Eighth Amendment standards.”[185]

As discussed above, solitary confinement has a lasting impact on the mental health of nearly all who are exposed to it. The court’s distinction between pre-existing mental conditions and mentally sound prisoners is a fallacy. Solitary confinement itself creates the conditions for complete mental breakdown, even in prisoners who were healthy when committed to the SHU. It is isolation and sensory deprivation itself that causes the psychological stress, though the abuse or neglect of prison officials certainly exacerbates it.[186] The Madrid opinion comes as close to acknowledging this as any other. If solitary confinement survived a direct Eighth Amendment attack under the circumstances of Madrid, it is unlikely there is any fact pattern that would convince a court to rule solitary confinement per se unconstitutional.

3. Current Litigation

There is currently a renewed complaint against Pelican Bay in the Northern District of California. Ashker v. Brown was initiated in 2012 on behalf of ten named plaintiffs and a larger class that includes other prisoners who have been kept in the SHU at Pelican Bay for “an unconscionably long period of time without meaningful review of their placement.”[187] The plaintiffs class size could be over 1000 people.[188] The complaint alleges both Eighth and Fourteenth Amendment violations to prisoners held in long-term confinement in the SHU. The complaint alleges five separate Eighth Amendment cruel and unusual punishment violations and claims they occur with “[d]efendants’ [d]eliberate [i]ndifference,” to the conditions.[189] The complaint also alleges serious Fourteenth Amendment due process problems.[190] If successful, the petitioners ask the court to issue an injunction requiring “the release from SHU of” class members who have been in solitary for more than ten years, improved conditions for those who remain, and “meaningful review” of all prisoners currently confined in the SHU and all future prisoners who will be confined in the SHU.[191]

In another California case, U.S. District Court Judge Lawrence Karlton recently issued a ruling in the Coleman v. Brown litigation addressing the use of solitary confinement on mentally ill inmates:

[T]he court finds that placement of seriously mentally ill inmates in the harsh, restrictive and non-therapeutic conditions of California’s administrative segregation units for non-disciplinary reasons for more than a minimal period necessary to effect transfer to protective housing or a housing assignment violates the Eighth Amendment. . . . Defendants shall commence forthwith to reduce the number of Coleman class members housed for non-disciplinary reasons in any administrative segregation unit that houses disciplinary segregation inmates. Commencing sixty days from the date of this order, defendants will be prohibited from placing any Coleman class member in any administrative segregation unit that houses disciplinary segregation inmates for a period of more than seventy-two hours if the placement is for non-disciplinary reasons including but not limited to safety concerns or lack of appropriate bed space.[192]

The court provided recommendations for how the state could remedy these constitutional violations, including creating “separate units for disciplinary and nondisciplinary segregation” and developing a policy based on a remedial plan adopted in other litigation.[193]

Again, while this ruling is a major victory for the Coleman plaintiffs, notice how tailored the remedy is to the specific injury. While inmates with mental health disabilities may not be placed into disciplinary segregation when they haven’t committed a disciplinary infraction, they can be placed into non-disciplinary segregation. This is indicative of a pervasive philosophy in California that segregation can and should be routinely used as a form of management and control.

Though one shouldn’t undervalue the current litigation, if successful, it is likely only to result in the sort of piecemeal change we have seen in previous court opinions. Of the four court remedies requested by the Ashker plaintiffs, one is fairly general: eliminating conditions of “isolation, sensory deprivation, lack of social and physical human contact, and environmental deprivation.”[194] Given the federal court system’s past experience with Eighth Amendment solitary confinement claims, it is unlikely the Northern District of California will draw the remedy that broadly if the plaintiffs are successful.[195] Either way, the sheer deprivation of inmates in solitary confinement, combined with the national and international condemnation of the practice from advocacy and human rights groups will ensure that many more challenges to the practices of Pelican Bay and other supermax prisons continue.

V. Reform Movements

Stories about solitary confinement have erupted in the media recently as hunger strikes, protests, and demonstrations have swept across the nation’s prisons.[196] International human rights groups, humanitarian organizations, political figures, and many others have condemned the use and conditions of solitary confinement, denouncing it as torture and a human rights violation.[197] While litigation is certainly being utilized as a vehicle for instigating change, all three branches of state government—legislators, judges, and prison officials—are jumping into the fray and reexamining their state’s practices and implementing reforms to solitary confinement. Based on trends witnessed in states that are leading the solitary confinement reform movement (i.e. New York, Colorado, and Maine), it is clear that reform originating from the political process—the legislature and executive—are most effective at inspiring structural change to solitary confinement policies and practices.

A. Other States’ Reform Efforts

1. New York: A Quasi-Judicial Approach

In Peoples v. Fischer, the New York Civil Liberties Union sued the New York State Department of Corrections and Community Supervision (DOCCS) “alleging that the use and length of confinement sanctions and conditions in DOCCS Special Housing Units (‘SHU’) create[d] an unconstitutional risk of harm.”[198] On February 19, 2014, the parties reached an unprecedented agreement to suspend the litigation pending the implementation of certain stipulated reforms in New York prisons.[199]

Peoples v. Fischer was motivated by solitary confinement practices employed by DOCCS that are strikingly similar to those used in California. DOCCS has approximately 3800 inmates in lockdown daily as punishment for violating prison rules.[200] They are locked down for twenty-two to twenty-four hours per day and “the average time spent in isolation was 150 days,” which is “five to 10 times longer than experts say is the maximum tolerable span.”[201] Despite these averages, some prisoners spend “years or even decades” in solitary confinement.[202] For example, lead plaintiff Leroy Peoples spent “780 consecutive days in [solitary confinement] for nonviolent behavior after prison officials determined he filed false legal documents.”[203] Of the prisoners held in isolation, over 2000 are released directly from solitary confinement into the community without any re-acclimation period.[204]

The parties in Peoples v. Fischer recently agreed to a stay of the litigation to provide time for the implementation of reforms to DOCCS’s disciplinary system and solitary confinement conditions, and for expert evaluation and consultation on DOCCS’s practices and policies.[205] During this time, the defendants will pursue the following goals:

(i) removing certain vulnerable populations from SHU confinement to alternative programs, (ii) increasing system-wide oversight to promote consistent prison disciplinary practices and confinement sanctions that are appropriate and necessary to protect the safety of both staff and inmates, (iii) implementing guidelines for all confinement sanctions to promote transparency and consistency of disciplinary confinement sanctions, (iv) improving SHU conditions as provided in [the stipulated agreement], and (v) reaching a final comprehensive settlement agreement . . . .[206]

The conditions of the stay call for several specific, immediate changes. First, DOCCS will prohibit the use of solitary confinement against inmates who are below the age of eighteen.[207] Second, DOCCS will implement a policy establishing a presumption against placing pregnant inmates in SHU for disciplinary reasons.[208] Similarly, DOCSS will implement a program that provides an alternative to SHU for special needs inmates.[209] Additionally, DOCCS will create a new Assistant Commissioner and research staff positions to collect data and track the state’s performance.[210] Moreover, DOCCS will implement new guidelines for disciplinary confinement sanctions, “develop new training materials for” its correctional officers, host regional training sessions, and “give full consideration to” the experts’ recommendations.[211] Finally, DOCCS will improve isolation conditions including increasing recreation time and access to headphones and educational materials.[212]

The experts will provide additional recommendations that will be memorialized in a final settlement agreement within two years of the stay.[213] If the reform process fails, the plaintiffs “will resume litigation.”[214] While compliance with the conditions of the stay is voluntary, both parties appear optimistic that this will be a groundbreaking and successful collaboration that other states can aspire to replicate.

2. Colorado: An Executive Approach

Colorado’s most recent solitary confinement reforms are in part motivated by a far more traumatic and personal event. Tom Clements, the former state corrections chief, was assassinated in March 2013 by Evan Ebel, a gang member who had recently been released into the community directly from solitary confinement.[215] Ebel killed a pizza delivery person and impersonated him by wearing his uniform in order to get Mr. Clements to open the front door.[216] “A few days later, [Ebel] was killed in a shootout with the Texas police after he had shot an officer during a traffic stop.”[217]

Governor John Hickenlooper appointed Rick Raemisch to the vacant position and “charged [him] with three goals: limiting or eliminating the use of solitary confinement for mentally ill inmates; addressing the needs of those who have been in solitary for long periods; and reducing the number of offenders released directly from solitary back into their communities.”[218]

On January 23, 2014, Raemisch voluntarily spent twenty hours in solitary confinement in a seven by thirteen foot cell.[219] He wrote the following description of his experience:

       First thing you notice is that it’s anything but quiet. You’re immersed in a drone of garbled noise—other inmates’ blaring TVs, distant conversations, shouted arguments. I couldn’t make sense of any of it, and was left feeling twitchy and paranoid. I kept waiting for the lights to turn off, to signal the end of the day. But the lights did not shut off. I began to count the small holes carved in the walls. Tiny grooves made by inmates who’d chipped away at the cell as the cell chipped away at them.[220]

When he emerged from his time in solitary confinement, Raemisch “felt even more urgency for reform.”[221]

Raemisch has already begun to implement the reforms that he has promised. The Colorado Department of Corrections has “brought down the total number of inmates placed in solitary confinement to 662 in September [2013]—down from 1,505 in September of 2011.”[222] A memo was released in December 2013 to the state wardens informing them that “offenders with MMI [major mental illness] Qualifiers cannot be referred for Administrative Segregation placement.”[223] Thus, while in Spring 2013, “50 severely mentally ill prisoners were serving in solitary,” in February 2014 “that number [was] four.”[224] He testified before a Senate panel and questioned why inmates had to spend twenty-three hours a day in solitary confinement (a number that he considers subjective), suggesting that an incentive system could be used instead to change inmates’ behavior.[225] Additionally, he has consistently emphasized “that 97 percent of inmates are ultimately returned to their communities,” and recognized the pitfalls and dangers of regularly allowing inmates to be released from solitary confinement directly back into the community.[226] Raemisch states that “[i]n Colorado, in 2012, 140 people were released into the public from” solitary confinement; in 2013, “70; so far in 2014, two.”[227]

Raemisch does not plan to stop at these victories. He hopes “to allow[] death row prisoners out of their cells for four hours a day[,] . . . send[] inmates to solitary confinement for specific lengths of time instead of indefinite periods[, and] . . . . mak[e] changes in the training of corrections officers, the preparation inmates receive before they are released and the way that corrections officers interact with inmates.”[228] With Raemisch at its helm, the Colorado Department of Corrections will continue to lead the nation in solitary confinement reform.

3. Maine: A Legislative Approach

Maine’s structural reform of solitary confinement primarily took place in the state legislature, and is outlined in detail by Zachary Heiden’s ACLU report.[229] Supported by local activists like the Maine Civil Liberties Union, Representative James Schatz drafted a bill entitled “An Act to Ensure Human Treatment for Special Management Prisons.”[230] The reforms were motivated by conditions in Maine State Prison’s Special Management Unit (SMU) that are typical of solitary confinement. Inmates in SMU were “isolate[ed] alone in an 86 square foot cell . . . for 23 hours per day during the week, and 24 hours per day on the weekends.”[231] They “had no human contact” and inmates could be isolated in the SMU for “days, weeks, months, or even years.”[232] Inmates “could be sent to the SMU for ‘disciplinary segregation’—as punishment for an assortment of rule violations from the serious (fighting) to the trivial (moving too slowly in the lunch line).”[233] Inmates in the SMU could also be there for “administrative segregation”—to isolate the victim and aggressor in a fight even when the victim was blameless.[234] Furthermore, like Raemisch’s concern in Colorado, there was “no policy of providing support or assistance to prisoners transitioning back into general population or out into the free world.”[235]

The bill proposed in the Maine legislature was designed to remedy these conditions and sought to implement a modest set of changes: (1) “[a] 45-day cap on the number of days that a prisoner could spend in solitary confinement (with [limited] exceptions for . . . serious acts of violence . . . );” (2) “a prohibition on the placement of prisoners with serious mental illness in solitary confinement, and a process for removing [inmates] . . . [with] symptoms of mental illness from solitary;” (3) “a set of basic due process requirements for prisoner disciplinary proceedings;” (4) “a prohibition on the use of chemical agents or forcible extractions for the purpose of punishement;” and (5) “a prohibition on the transfer of prisoners to out-of-state facilities lacking analogous protections.”[236]

This bill was met with vehement opposition from the Maine Department of Corrections, which asserted that it would compromise both inmates’ and corrections officers’ safety.[237] While the bill was ultimately defeated in the Maine Legislature’s Joint Committee on Criminal Justice and Public Safety, it was converted into a Resolve entitled “Resolve, Directing the Department of Corrections to Coordinate Review of Due Process Procedures and To Ensure Transparency in Policies Regarding Placement of Special Management Prisoners.”[238] The Resolve required the creation of the Mental Health and Substance Abuse Focus Group (the Group), which was tasked with “review[ing] due process procedures and other policies related to” placing prisoners in SMU at the Maine State Prison.[239] The resolve was approved on April 15, 2010 and “[t]he Group’s conclusions were shocking in their thoroughness and honesty.”[240] Expressing concern with “the amount of discretion exercised by corrections officers in sending prisoners to the SMU,” the Group issued a series of recommendations that addressed, amongst other things: hiring more professional clinicians “with backgrounds in behavior modification”; improving data collection regarding SMU; reviewing the practice of using SMU to house inmates with pending investigations; keeping the beds of SMU inmates open so that they can transfer back to the general population easily; expanding the range of disciplinary “tools and sanctions” in order to ensure “that the SMU is only a last-resort punishment”; improving the physical conditions in SMU; and providing for additional mental health training to staff in the SMU.[241]

Joseph Ponte, the Commissioner of Corrections, took these recommendations and hit the ground running. The reforms that have been implemented represent a restructuring of not only the technical criteria for entering or being held in SMU, but also a rethinking of the role that solitary confinement should (or should not) play in corrections. The main reforms that Maine has enacted fall into three categories: changes to how an inmate enters SMU, changes to conditions in SMU, and changes to how inmates leave SMU.

a. Entering SMU

The admissions criteria for entering solitary confinement are stricter, especially those for a disciplinary infraction.[242] For example, in order to be placed into disciplinary segregation, an offender must meet one of four requirements:

1) the prisoner constitutes an escape risk in less restrictive status; 2) the prisoner poses a threat to the safety of others in less restrictive status; 3) the prisoner poses a threat to his/her own safety in less restrictive status; or 4) there may be a threat to the prisoner’s safety in a less restrictive status.[243]

MDOC has also addressed the Group’s concern regarding holding an inmate in SMU pending the conclusion of an investigation. MDOC policy 20.1 now provides that “no prisoner shall be detained pending investigation, hearing, or review or appeal of recommended disciplinary dispositions except as provided in Policy 15.1, Administrative Segregation, using the procedures and criteria for the placement of a prisoner on administrative segregation status.”[244]

Additionally, MDOC has expanded the options for “alternative forms of punishment.”[245] These include “confining the prisoner to his own cell; limiting contact visits; restricting the visitors allowed to immediate family; loss of work opportunities; et cetera.”[246] Corrections officers and staff have been given additional training and resources for how to deal use these alternatives as well as how to cope with challenging inmates.[247]

b. Conditions in SMU

For those inmates who are placed in solitary confinement, MDOC has worked to improve the conditions of their stay. In order to “reduce[] the likelihood of decompensation,” inmates are now given “access to radios, televisions, and reading material.”[248] Additionally, they are “given more opportunity to interact with other prisoners through group recreation and counseling sessions.”[249] Finally, MDOC utilizes an incentive system whereby prisoners can gain privileges “like additional hours of recreation through positive behavior.”[250]

c. Leaving SMU

When placed in SMU, inmates work with prison staff and mental health professionals “to develop a road map of behavior that will lead back to the general population.”[251] These maps include specific goals such as meeting with a mental health practitioner, exercising impulse control, engaging in “socially appropriate interactions,” and not engaging in self-harm.[252] This approach demonstrates to inmates that there is an end in sight, and places control over their housing in their own hands.

In order to prevent inmates from being stuck in solitary confinement indefinitely because of a lack of bed space and incentivize corrections staff to learn to cope with difficult inmates, MDOC policy 15.01 states: “If a prisoner is moved out of his/her bed, the prisoner’s bed shall be retained pending the review of emergency observation status.”[253]

Maine illustrates that structural reform in solitary confinement is possible provided that key players such as Commissioner Ponte envision a corrections system that doesn’t use solitary confinement as a routine method for maintaining institutional control. The numbers suggest that these structural reforms have been successful; as of “August 23, 2012, there were 46 prisoners being held in the SMU—approximately half the number of 18 months prior.”[254]

B. California’s Reform Efforts

In California, the impetus for reforming solitary confinement has come from both an unlikely and likely source: state prisoners. In July 2011, prisoners across California refused food in an organized hunger strike to protest the California Department of Corrections and Rehabilitation’s (CDCR) practices and policies towards inmates held in solitary confinement.[255] The hunger strikers issued five “core demands”:

1.   End Group Punishment and Administrative Abuse . . .

2.   Abolish the Debriefing Policy, and Modify Active/Inactive Gang Status Criteria . . .

3.   Comply with the U.S. Commission on Safety and Abuse in America’s Prisons 2006 Recommendations Regarding an End to Long-Term Solitary Confinement . . .

4.   Provide Adequate and Nutritious Food . . .

5.   Expand and Provide Constructive Programming and Privileges for Indefinite SHU Status Inmates . . . [256]

The hunger strike continued until July 20, 2011 when the hunger strikers and CDCR entered into an agreement where CDCR would conduct a major policy review of SHU housing conditions, the gang validation process, and the debriefing process.[257] Dissatisfied with the proposed policies from CDCR, prisoners undertook two additional hunger strikes over the next two years.[258] One ran from September 26, 2011 to October 16, 2011 and the other, involving over 30,000 inmates, from July 8, 2013 to September 5, 2013.[259]

In response to these hunger strikes and mounting pressure from the public and advocates, CDCR issued a memorandum announcing the implementation of a new pilot policy regarding Security Threat Group (STG) “prevention, identification, interdiction, and management.”[260] The pilot policy tested many of the revisions that were recently made to the Regulations. For example, like the revisions to the Regulations, the pilot policy had two main components: changes to the gang validation process and initiating a new step down program for inmates to get out of SHU.[261] Even before the Regulations were revised and these changes were implemented, advocates expressed dissatisfaction with the pilot policy. Some remained concerned because being validated as a member of certain STGs could result in placement in SHU for a significant duration of time.[262] Furthermore, advocates assert that the gang validation process is still problematic because innocuous behaviors, like possessing a particular book, could still be used as evidence of gang membership.[263] State Assembly Member Tom Ammiano, who chairs the Assembly’s Public Safety Committee, said, “According to CDCR’s policy . . . many of us sitting on this committee would be gang associates, I don’t know how it’s possible to avoid association under this system.”[264]

In addition to revising the Regulations, CDCR has also been conducting a review of their gang-related SHU population.[265] “According to data obtained from CDCR, 725 SHU case reviews have been conducted, with about 69% [sic] those cases leading to release to the final step in the Step Down Program and/or a General Population setting.”[266] While some are applauding CDCR for this review effort, others believe that this proves that the “gang validation policy was not working” and that those individuals who will soon be released should never have been in SHU.[267]

Reform in California has also come from other quarters such as politicians who heard the cries from inmates and the public, and responded by holding two joint hearings of the California Assembly and Senate Public Safety Committees. National experts, family members, and advocates testified, arguing forcefully for legislative reform to solitary confinement at these hearings on October 9, 2013 and February 11, 2014.[268] Moreover, following these hearings, Assembly Member Ammiano introduced Assembly Bill 1652 which limits the violations and situations for which a prisoner can be placed in SHU, and Senator Hancock introduced Senate Bill 892 which achieves more comprehensive reform of solitary confinement practices by adding due process requirements before an inmate is placed in SHU, creating a reentry plan for inmates paroled directly from SHU, and providing additional social and sensory stimulation for inmates in SHU.[269] Although Assembly Bill 1652 did not pass and Senate Bill 892 died in the Assembly,[270] they demonstrate the growing momentum behind the solitary confinement reform cause. In the next Part, we consider the State’s next steps and provide recommendations based on the successes and failures experienced in other states.

VI. The Future of Solitary Confinement in California

A. How Should California Seek Reform?

California is fortunate to have the successes and failures of other states to guide its efforts in confronting its practices and policies governing solitary confinement. Both the lessons learned from other states and California’s litigation history suggest that structural reform will likely emerge from legislative or executive efforts, not the courts.

When a solitary confinement case reaches the courts, the litigation tends to be protracted and, even when the plaintiffs prevail, mildly disappointing. The relief is often so narrowly tailored to the alleged injury that only piecemeal change is achieved through each suit. Even in New York, where litigation led to structural reform, it was through a cooperative agreement reached between the parties and not relief ordered by the court. Colorado exemplifies reform achieved through efforts in the executive branch. Once the governor identified solitary confinement as a practice deserving of reform, he appointed a chief corrections officer who was driven to execute his vision. In Maine, even when legislative efforts initially failed, a resolve that led to the illumination of pervasive issues was successfully passed. The executive then used the information and recommendations provided by experts to institute radical changes to its policies.

So how does California achieve the same results? First, while Ashkar is unlikely to result in structural reform of solitary confinement, it is an effective method for bringing CDCR to the table and drawing attention to the situation. Second, the hunger strikes in the prisons have placed California prisons at the forefront of national news and placed a reluctant CDCR in a position where not only the prisoners but also the nation are demanding change. Third, politicians like Tom Ammiano should continue to lobby for bills in the legislature that reform the state’s practices. Finally, what united New York, Maine, Colorado, and other states that have restructured their use of solitary confinement are heads of corrections who are willing—whether grudgingly or eagerly—to change. Until the executive branch feels compelled to reevaluate its policies and practices with respect to solitary confinement, prison administrators and heads of corrections will only agree to small concessions that permit solitary confinement to persist as a default tool for management and control.

B. Recommendations

Whether California takes a piece-by-piece approach to reform or reinvents its solitary confinement practices entirely, certain aspects of its policies need to be addressed immediately. The following recommendations highlight several of the policies that deserve immediate attention from lawmakers, CDCR, advocates, and the public.

Make Solitary Confinement a Last Resort

A successful structural reform of solitary confinement would require reimagining segregation as a tool of last resort. Under this restructuring of solitary confinement, it would be used, not as a first response or first line of defense against a noncompliant inmate, but as a final measure against an inmate who has failed at every other opportunity. This would require creating a disciplinary system that is based on incentives and disincentives, and that utilizes alternative sanctions for minor transgressions. Like Maine’s reformed approach, incremental disciplinary measures such as loss of work privileges, limited visitation, or even confinement to a cell in the general population are all potential punitive options. Corrections officers and staff would need to be trained on these new policies and given additional support and resources for dealing with difficult inmates. Only after an inmate has failed to correct his behavior after every other option has been exhausted should segregation be considered.

Reserve Solitary Confinement for the Most Dangerous Inmates

If CDCR insists that eliminating solitary confinement entirely will place inmates and prison staff at risk, then segregation should be used only for the most serious and unruly offenders. As discussed above, Maine limits its use of solitary confinement to prisoners who constitute an escape risk, pose a threat to their own safety or the safety of others, or whose safety is threatened by others. However, because CDCR has identified gangs as a main contributor to violence in California’s prisons, the following should be additional, permissible reasons for placing an inmate in solitary confinement: committing a serious, violent infraction or being a high-level gang leader.

Such a policy would go one step further than the current proposed change, which does not permit gang associates to automatically be placed in solitary confinement and instead requires that an inmate commit an offense in service of the gang before being segregated. Although this proposed change is a step in the right direction, it still permits an inmate to be placed in solitary confinement indefinitely if he is a gang member even if he has not committed a single disciplinary infraction or crime. Unless an inmate is a high-level gang member in a position of command and control, indefinite segregation is unwarranted. A policy that permits segregation for the commission of a serious, violent offense would permit CDCR to punish gang associates, members, and leaders who compromise the safety of the institution without casting an unnecessarily wide net.

Prohibit the Use of Extreme Isolation

Extreme isolation is characterized by severe sensory and social deprivation and many of the practices in California’s segregation units utilize this form of confinement. These practices include confinement in cells for more than twenty-two hours per day, limited access to natural light, rare phone calls or visitation, infrequent opportunities to communicate with other inmates, and a lack of reading or other stimulating materials. In an article commenting on the American Bar Association’s Criminal Justice Standards on the Treatment of Prisoners, Margo Schlanger and colleagues state the following about extreme isolation:

Some dangerous prisoners pose a threat to others unless they are physically separated. But such separation does not necessitate the social and sensory isolation that has become routine. Extreme isolation is not about physical protection of prisoners form each other. It is a method of deterrence and control—and as currently practiced it is a failure.[271]

Rather than placing inmates in extreme isolation, solitary confinement should segregate prisoners to the extent necessary to maintain the safety of the other inmates and prison staff without unduly restricting the prisoner’s access to basic forms of social and sensory stimulation.

Make Solitary Confinement More Humane By Increasing Access to Social and Sensory Stimuli

Inmates in solitary confinement should be given the opportunity for meaningful interaction with others as well as the chance to escape enforced idleness. They should be given access to reading materials, televisions or radios, writing utensils, and notebooks. They should be permitted to make telephone calls and accept visitors, even if these are no-contact visits. They should also be permitted to spend more time outside of their cells in recreation yards or common eating areas. Each of these changes can occur without compromising the safety of the prison staff or inmates.

Require Frequent Individualized Determinations That an Inmate Belongs in and Should Be Retained in Solitary Confinement

An inmate should not be kept in solitary confinement unless a committee frequently and periodically reviews his case and makes a determination that continued isolation is necessary. Such individual determinations should permit inmates to have a meaningful opportunity to challenge the alleged conduct or accusation that leads to their placement in isolation. Furthermore, these determinations should occur every thirty to sixty days.

Tighten the Criteria for Gang Validation

Under these proposed recommendations, only gang members or affiliates who have committed serious offenses should be assigned to solitary confinement. The evidence needed to prove that an inmate is a gang member or leader should be far more stringent such that drawings, possession of a particular book, or innocuous conversations amongst inmates is not satisfactory evidence to support gang validation. Instead, actual conduct or discovery of a conspiracy to commit a serious infraction in furtherance of the gang that can be independently verified should be the only appropriate sources for gang validation.

Make All Segregation Sentences Determinate with Earlier Release Opportunities Pending Completion of an Individualized Plan

Once an inmate is assigned to solitary confinement, prison officials and mental health providers should formulate a plan to transition the inmate out of segregation. This individualized plan should include behavioral goals such as those utilized by the Maine Department of Corrections. Such an incentive system should permit inmates to earn additional privileges for good behavior with the ultimate goal being reintroduction into the general population. It should incorporate opportunities and interactions that gradually resocialize the inmate into the general population. Inmates should periodically meet with their team to assess their performance and adjust the plan as necessary. This should be an alternative to debriefing but, unlike the current pilot Step Down Program, should not last four years.

Require a Mental Health Screening Within 24 hours of Being Placed in Segregation and Ongoing Mental Health Monitoring, Resources, and Evaluations

Given the prevalence of mental illness in SHU units, ensuring that inmates receive mental health treatment to address preexisting mental illnesses, as well as ongoing treatment to combat the development of mental illnesses while in solitary confinement, is essential. Within twenty-four hours of being placed in segregation, each inmate should receive a mental health screening to ensure that placement in solitary confinement is appropriate. Furthermore, inmates in solitary confinement should receive ongoing mental health monitoring to (1) ensure that they do not start to exhibit behaviors that are cause for concern, and (2) verify that they are progressing through their individualized plans appropriately.

Reserve Inmates’ Beds in the General Population While They Are In Solitary Confinement

If inmates spend a determinate period of time in solitary confinement, then CDCR should be able to ensure that a bed in the general population will be available once the inmate is released from segregation. Maine implemented a policy that requires an inmate’s bed to be retained pending a review of emergency observation status. Adopting a similar policy here will minimize the number of inmates who are isolated, through no fault of their own, simply because of lack of bed.

Inmates Should Not Be Released Directly From Solitary Confinement Into the Community

The untimely death of Colorado’s former state correction chief at the hands of an inmate released directly from solitary confinement illustrates the dangerous and potentially tragic consequences of permitting inmates to “max out” of segregation. Inmates in solitary confinement who are nearing the expiration of their sentences should preemptively be placed into a prerelease resocialization program. Such a program should gradually reintroduce the inmate into the general population before his release and prepare him for life outside of prison. This should include both a behavioral and a resource-based component. In other words, inmates should be prepared for the freedom and choices that accompany life outside of prison, but also be provided with resources regarding potential job opportunities, housing, and community support organizations.

Conclusion

Poised on the precipice of change, California should seize this opportunity to challenge its use of solitary confinement as a routine, default mechanism of control and management in its prisons. While the courts have been successful in attracting attention to the cause and bringing resistant corrections departments to the table, they are primarily vehicles for incremental or piecemeal reform. But armed with scientific research on the detrimental effects of solitary confinement on inmates’ mental health, condemnation of the practice from human rights and other organizations, and harrowing personal accounts from inmates living under these conditions, advocates should aspire for more and focus their efforts on the legislative and executive branches of government to achieve structural reform of California’s solitary confinement policies and practices.