Obama Restricts Solitary Confinement in Federal Prisons

On Monday President Obama announced that federal prisons would no longer use solitary confinement for juveniles or for inmates serving time for low-level infractions.  The move is long overdue–like almost 200 years overdue.  Consider, for example, this assessment of the harms of  solitary confinement in Pennsylvania from de Tocqueville (yes, that one) and de Beaumont from their 1833 work “On the Penitentiary System in the United States, and Its Application in France.”

[A]bsolute solitude, if nothing interrupt it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, it kills.

There are an estimated 100,000 people in solitary confinement in the United States, though no one really knows for sure.  Part of the problem is that there is a lack of transparency about who is in solitary and what evidence gets them there–and, more worryingly, what procedures there are to get them out.  For example, Albert Woodfox, one of the Angola 3, has been in solitary for more than 40 years (a recent ruling that was to grant him release was overturned by the 5th Circuit).  For one particularly Kafkaesque example of misidentification leading to years of solitary confinement in California, check out Lira v. Cate (though, it should be noted, California has also revised its solitary confinement procedures).

The American Correctional Association has recently promulgated new draft standards for the use of solitary confinement (also known as restrictive housing, administrative segregation, and the like) and has been collecting feedback on the standards (full disclosure: I was involved both with an ABA response and a response from law professors).  I am hopeful that state prisons–which hold far and away more prisoners than the federal system–will follow the lead of both President Obama and the ACA and move away from this expensive and psychologically damaging practice.  For the cases that remain, I also hope that prisons provide more transparency about the number of people in solitary and the procedures used to confine them there.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

7 thoughts on “Obama Restricts Solitary Confinement in Federal Prisons”

  1. As usual, Obama does too little and too late. On his first day of office, he should have banned solitary confinement beyond a brief period for all prisoners. Solitary confinement beyond a brief period is torture, regardless of one's age or the nature of the crimes one committed. Obama has been responsible for torturing people for seven years, so it is hard to feel gratitude toward him for finally stopping it for a minority of its victims.

    And, of course, the practice of solitary confinement, which, being torture, violates the Constitution, like the detention of prisoners at Guantanamo without trial, and, for that matter, the existence of the no-fly list without due process, reveals that the Constitution is not in effect. The President violates his oath to uphold it, and the courts allow him to get away with it.

    1. I might have mentioned that Congress allows him to get away with it as well. Surely torture and imprisonment without due process are impeachable offenses. But the idea of members of Congress upholding their oath to support the Constitution is too risable to mention.

  2. We have problems on both ends: Excessive use of actual solitary confinement, and it's opposite: Not giving prisoners protection from other prisoners. The latter might even be the bigger issue, on net. Too much of a tendency to treat horrible conditions as just part of the punishment.

    1. The irony, though, is that administrative segregation is often used both ways: to house those who threaten and those who are threatened. This is something very few people know: that if someone is being abused, they are, in many systems, removed from general population and housed in solitary. That's one of the reasons we need more transparency and reform. As for your general point, I'm in complete agreement–horrible conditions are too often taken as part of the punishment. I'm of the opinion that we should actually sentence someone to being threatened, raped, etc., if we are going to treat it that way. If, as I hope, people wouldn't accept that punishment as a pronouncement, we shouldn't accept it ex post.

      1. Protecting a prisoner from other prisoners does not, of course, require solitary confinement. The prisoner in need of protection can be placed in a cell with a non-threatening prisoner, or even in a separate cell, but one from which he can communicate with other prisoners. And he should be given books and other reading and writing material.

  3. A couple of thoughts. First, I agree with Brett_Bellmore's comment that we have problems on both ends. I'll go a step further and say that we need to not only protect inmates from other inmates, but we also need to protect staff from certain inmates. A categorical termination of the use of solitary confinement is most certainly a bad idea. Bad people exist. There are inmates who will stick a shank in other inmates or staff at any first opportunity they have. I'm not speaking about something I saw in a movie, I'm speaking as someone who works on the inside of a prison system. There is a group of inmates who are extremely difficult to manage, and for which solitary confinement is the only real, viable option. Obviously there are problems with the overuse of solitary, and we should continue to find ways to reduce its footprint wherever possible. It's much too over-simplified to say we should just categorically eliminate it though.

    Second, from a strict empirical standpoint, it actually remains an open question as to whether (and the extent to which) solitary confinement produces negative outcomes among those who are exposed to it. The one study funded by the DOJ's National Institute of Justice to study this issue in Colorado actually found no negative impacts among inmates exposed to solitary confinement. To the credit of one of the authors of that study (who I know personally), she doesn't personally want to believe what she found but she followed the evidence where it led her. Much more research is needed on the impact of solitary confinement. We can't just assume a negative impact because it would seem apparent on the surface or because de Tocqueville and de Beaumont theorized about it 200 years ago. This comment is as much as anything a call for further and more rigorous research on the topic.

    Third, it might surprise some who don't work in the system to know that not all people classified as being in solitary confinement are actually solitarily confined. At least in the system that I work in, there is a rather large percentage of our "solitary confinement" population who are double-celled, meaning they have a cellmate. So the de Tocqueville comment about "absolute solitude" seems not to apply here. I've actually always thought that I'd rather be in a cell by myself rather than be in a cell with the same roommate for 23 hours out of the day. I might feel differently though if actually exposed to solitary confinement.

    Lastly, I disagree that the states need to follow Obama's lead on this issue. I work in a state correctional system. I have a good pulse on what is happening in other state correctional systems too. I would argue that it is the reverse- Obama has taken the lead from states on this issue. States have been talking about this issue for a while, and making important and meaningful strides to carefully reduce the use of solitary confinement. Like on most other correctional issues, Obama and the Feds are playing catch-up to the states on this issue. It grabs headlines because it is Obama and because he categorically eliminated solitary confinement for a certain sub-set of the inmate population, but true reformers at the state level know he is behind on this (for another example of the Feds being behind see the Federal Charles Colson Task Force recommendations that came out today, which follows the lead of state prison population reforms and the whole Justice Reinvestment Initiative).

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