Solitary Confinement: Effects, Practices, And Pathways Toward Reform

Authors: Jules Lobel & Peter Scharff Smith
Publisher: Oxford, UK; New York: Oxford University Press, 2019. 396p.
Reviewer: Terry A. Kupers | November 2020

Cyrus Ahalt and Brie Williams organize their chapter on the adverse medical effects of solitary in this groundbreaking work by presenting the kind of risk/benefit analysis physicians utilize daily to determine if the benefits of a treatment outweigh the risks involved in its employment. Applying a risk/benefit analysis to solitary confinement, it becomes obvious that there is huge risk in terms of the pain and human damage solitary causes, but there really are no benefits as violence and gang activity continue unabated in the prisons. The authors of this volume argue eloquently and convincingly, from varied disciplines and perspectives, that it is time to end solitary confinement, and they provide a vision of a carceral system devoid of solitary as well as a road map for getting there.

Jules Lobel, one of the editors of this volume, was the lead attorney in a historic class action lawsuit, Ashker v. Governor of California, about solitary confinement in the SHU (Security Housing Unit) at Pelican Bay State Prison. There had been an earlier case, Madrid v. Gomez, where federal Judge Thelton Henderson ruled that the consignment of prisoners with serious mental illness to solitary confinement violated the Eighth Amendment’s prohibition of cruel and unusual punishment, but the consignment of emotionally stable prisoners to the SHU did not reach the bar to be considered an Eighth Amendment violation. The Madrid case was decided in the early 1990s, when the Pelican Bay SHU had only been in operation for a few years. Following prisoner hunger strikes at Pelican Bay from 2011 to 2013 in protest of horrid conditions and deprivations, the Center for Constitutional Rights stepped in, with the help of allied legal teams, to represent prisoners in the Ashker litigation. The plaintiff class included prisoners who had been in the SHU for longer than ten years — a much longer tenure than in the Madrid case.

Ashker was a very tough case. It is relatively easier to win an opinion in federal court that the consignment to solitary of individuals with serious mental illness, or juveniles, violates the constitution. But it is much more difficult to prove to the court that prisoners who are not in a “special needs” group should be banned from solitary. Courts are hesitant to tell states or the Federal Bureau of Prisons how to manage prison security. The Ashker plaintiffs and legal team opted to put on a cross-discipline panel of experts, including the psychological and correctional expert witnesses who are core contributors to most prison lawsuits, but also including social scientists from other disciplines, neuroscientists, testimony from prisoners themselves, human rights advocates who can explain why they consider solitary to be a form of torture, and experts on the way prisons are run in other countries.

This reviewer and Prof. Craig Haney examined prisoner class members and reported on extensive psychological damage. Correctional management experts Emmit Sparkman, Terry Collins and James Austin opined about ineffective management that led to excessive isolation at the Pelican Bay SHU. Neuroscientist Mathew Lieberman testified that neural and brain activity studies would show that solitary confinement causes physical changes in the nervous system typically found in cases of severe physical pain; social scientist Louise Hawkley testified that the kind of loneliness induced by solitary confinement is known to cause hypertension and other illnesses as well as early mortality; Dachner Keltner, an expert on touch, testified that basic human health and well-being depend on a quality of touch that prisoners in the SHU are denied; Juan Mendez, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Punishment testified that solitary confinement for longer than 14 days is a human rights violation; and Andrew Coyle, a well-respected correctional administrator from Scotland, testified that there are well-developed alternatives to solitary confinement, including stepdown programs to phase prisoners out of solitary and proven small group treatment and rehabilitation designs to keep admittedly dangerous individuals from disrupting a prison system. Two benefits of a solid international perspective on solitary confinement are that the comparative overutilization of solitary in the USA is highlighted, while the alternatives to solitary developed around the globe serve as an invaluable guide to a judge trying to rule on the constitutionality of solitary confinement.

This broad, multi-disciplinary, national and international group of experts presented convincing evidence that solitary confinement causes great emotional and physical harm, is not necessary for the management of difficult prisoners, and that there are alternatives to solitary confinement in the USA and in other countries that are much more effective and humane. The Plaintiffs were ultimately victorious in the Ashker litigation. According to lead attorney and editor Jules Lobel, “[w]e hadn’t abolished long-term solitary in California, but we had significantly limited it” (p. 370).

This volume includes chapters by many of the experts who testified in the Ashker litigation as well as others. Huda Akil writes about changes in brain structure and function from solitary confinement, demonstrating that the widely-reported psychological harm of solitary is physical as well as psychological. There is a chapter by neuroscientists Richard Smeyne and Michael Zigmond about social animals such as rodents and zoo animals, the damage isolation causes them, and the regulations in place to protect animals — regulations for animals that are more humane than current laws governing the solitary confinement of humans in prison. There are chapters by Peter Scharff Smith, Sharon Shalev and Keramet Reiter about the centuries-long history of solitary confinement and its use worldwide. There are chapters by attorneys Judith Resnik, Amy Fettig and David Fathi about the status of solitary in constitutional law. There are chapters by two U.N. Special Rapporteurs on Torture, Juan Mendez and his predecessor, Manfred Nowak, reflecting an international human rights perspective on solitary confinement and torture.

Craig Haney presents his comprehensive and rigorous research about the harm of solitary. He discovered seven prisoners who he had interviewed for the Madrid case who were still in the SHU over ten years later. He reported on their continuing psychological damage. He also examined a random sample of SHU prisoners and compared their symptomatology with that of comparable prisoners in the general population. Craig Haney’s research methodology and ethics are the gold standard for social scientists, and he very persuasively argues that “the social death that can result (from solitary confinement in the Pelican Bay SHU) has deep and devastating effects” (p. 148). Prof. Haney and I researched entirely independently the negative symptoms and long-lasting effects of prolonged solitary confinement in the Pelican Bay SHU, and yet we arrived at the same findings, including what I term “the SHU Post-Release Syndrome,” involving very severe symptoms and disabilities that last long after individuals exit the SHU. Homer Venters writes about his experience providing health care at Rikers Island, where suicide in solitary confinement was commonplace. He describes the effective alternatives to solitary his team developed for difficult prisoners at Rikers.

This volume also includes very poignant testimony by people who have “been there,” including Robert King (the first of the Angola Three to be released after spending decades in solitary confinement), Dolores Canales and Jack Morris. And there is commentary by Armando Sosa, a Lieutenant at Colorado State Penitentiary.

The book includes reports from states where solitary confinement is rarely used and other countries where alternative approaches to disruptive and dangerous prisoners make solitary unnecessary. Thus, Leann Bertsch presents the success of the North Dakota department to downsize and mostly end reliance on solitary confinement. Andrew Coyle shares his groundbreaking experience in Scotland managing “high-security prisoners” without resorting to solitary. Are Høidal presents the Norwegian model, where small prisons near prisoners’ communities and small groups within the prisons are utilized to create a certain level of “normalization,” where prisoners have jobs and remain connected to the larger community so they will be able to succeed after being released. Jamie Bennett, writing about the U.K., argues that “alternatives can be uncovered in the rediscovery of more humane and effective penal practices that have often continued to flourish in niches of prison systems, but may now be brought into the light and encouraged to reach full bloom” (p. 280). This is an important point as applied to American prisons. I often find in my tours of prison systems that there are small “model programs” that the administration shows off to visitors but is very reluctant to expand into system-wide reforms. In contrast, as Bennett explains, there is the impressive success of a therapeutic community model at Her Majesty’s Prison Grendon, where very high security prisoners participate peacefully in making democratic decisions about many aspects of prison life.

One wonders, when it is crystal clear that prolonged solitary confinement causes severe and long lasting psychological and physical damage, why corrections officials and “law and order” politicians insist on continuing the practice. Judith Resnik suggests there is a propaganda purpose to solitary. Linking the solitary confinement of suspected terrorists at Guantanamo with comparable treatment of prisoners at Pelican Bay, she writes: “[s]ending people to Guantanamo was a technique to keep them hidden from view as well as to put them on display. The government aimed to inspire fear of terrorism and to demonstrate that it could ward off such threats….” In California, the guards’ union, the strongest lobby in the state, favors the continuation of solitary confinement while insisting that guards “walk the most dangerous beat.” They vilify the denizens of the SHU as “the worst of the worst” (which is far from the reality, a significant proportion of SHU residents are outspoken advocates for their constitutional rights, another large group suffers from mental illness) so that the public will be lulled into directing more tax dollars into prison building and higher salaries for guards.

When extraordinary, even cruel practices are in effect for a long time, they become familiar, as if the norm. Mass incarceration is like that. There were only 200,000 prisoners in the United States in the early 1970s, compared to 2,300,000 today, not counting I.C.E. detention facilities. The crime rate has gone up a few points and then down several times in the intervening years. But the practice of warehousing huge numbers of people in prison, disproportionately people of color, is simply “normal” in the minds of most people. Solitary confinement is like that, too. The control of prison violence and gang activity was the rationale for the surge in supermax solitary confinement that began in the 1980s, but prison violence and gang activity continue while the human damage is immense. This is truly extraordinary. Rick Raemisch, who served as Executive Director of the Colorado Department of Corrections from 2013 through 2018 and accomplished in those years the abolition of solitary confinement in Colorado, writes: “[w]hen did it become okay to lock someone in a cell that is the size of a parking space, twenty-three hours per day, seven days a week for decades?” He explains in his chapter the steps he and his staff took to accomplish this unprecedented abolition of solitary. For some wardens and commissioners, and for too much of the public, solitary confinement, like mass incarceration, has become the norm. But successes are accruing from prisoner hunger strikes, broad protest movements, litigation such as the Ashker lawsuit, and campaigns to convince legislators to pass laws like the recent one in New Jersey that bans solitary confinement for longer than 20 days. This volume is unprecedented in the comprehensiveness and rigor of its treatment of the evidence of negative effects of solitary confinement, and the safe alternatives to solitary that are proven and available. The writing is engaging and accessible. The impact of this book, like the impact of the Ashker litigation, will serve to advance the struggle to end the torture of solitary confinement in the USA and, one hopes, worldwide.

Terry A. Kupers, M.D., M.S.P., is Professor Emeritus at The Wright Institute and author of Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It (Univ of California Press, 2017)