An Unacceptable Cruelty: The Constitutionality of Solitary Confinement

By Connor Bailey

William Daly has worked in corrections for over twenty-five years and is the Director at the Salt River Department of Corrections in Scottsdale, Arizona. His article, “Segregation: A necessary evil,” first appeared in the Journal of the American Jail Association and is republished on CorrectionsOne.com; both venues cater to the corrections community. Daly advocates for the continuation of solitary confinement. His argument crystallizes the kinds of arguments that one hears from corrections officials. These arguments strongly contrast with the opinions of outside experts and researchers, including academics, journalists, human rights watchdogs, and the UN—all of whom overwhelmingly support increased restrictions or complete bans on the use of solitary confinement. The corrections community focuses on the application of policy and is skeptical of changes to current practices. It maintains that segregation is necessary for correction officials to do their jobs and keep inmates safe both inside and outside of segregated housing. While I am sympathetic to these claims, I think it is missing something.

This argument foregoes a crucial first step. Before we can discuss the application of policy, we need to consider if it is acceptable. If segregation is deemed to be radically unaligned with our core principles, we must do everything we can to stop it, like changing the conditions that make it seem necessary in the first place. I argue that solitary confinement constitutes “cruel and unusual punishment” as stipulated by the 8th Amendment to the Constitution. The criterion for “cruel and unusual punishment” includes the “unnecessary and wonton infliction of pain” and is informed by “evolving standards of decency” (Dayan, Cruel). The harm that results from the lack of sensory stimuli and the isolation from meaningful human contact means Solitary confinement violates both of these criteria.

Eastern State Penitentiary Philadelphia, now abandoned, was the first all-solitary prison in the US. Religiously inspired its goal was to force inmates into the contemplative life of monks to “repent” their crimes.

Eastern State Penitentiary Philadelphia, now abandoned, was the first all-solitary prison in the US. Religiously inspired its goal was to force inmates into the contemplative life of monks to “repent” their crimes. Image Source.

First, we need to define solitary confinement and give it a context. You may have noticed the shift I made from the vocabulary of “segregation” to “solitary confinement.” They are one and the same. Terms like “isolation,” “23/7,” “restricted hosing,” “special management,” “special sousing unit (SHU)” or “separation” are all different names for the same thing. The diversity of terms illustrates the different approaches to the issue and are used to frame the issue in different contexts (Metcalf). Most of the advocates for solitary confinement are corrections officials, and the more clinical, administrative language of “restricted housing” or “separation” illustrates this. Their context is professional and the professional jargon shows the effort to create distance from the inmates. Those who would reform the system more often use terms like “solitary confinement” to emphasize the main issue with the practice: the extreme social isolation. As I would wish to reform the system, I have chosen the latter option to be consistent with those kinds of arguments.

Solitary confinement is marked by single person cells where prisoners are confined somewhere between twenty-two and twenty-four hours a day. The typical cell is windowless with dimensions between 6×9 and 8×10 feet. Normal participation in meals, religious ceremonies, educational opportunities, and other prison programs is limited. Visitation, correspondence, and access to reading materials, among other privileges, are similarly restricted or wholly denied (Daly, Metcalf, Gawande).  This amounts to a greatly diminished amount of human contact and sensory stimuli. Though stays may be as short as a few days, the average is around 100 days, or more than three months in solitary. A significant number of prisoners are in solitary confinement conditions for extended periods of time, sometimes reaching into the decades (Metcalf, Gawande). The practice was common through the early 1800s, but by the 1900s it was deemed to be obsolete and almost hardly ever used (Metzner, Craig). Beginning in the 1980s and 1990s solitary confinement and the resultant “Supermax” facilities became increasingly popular. Currently, on a day-to-day basis it is estimated that the US prison system holds some 80,000 prisoners in solitary confinement (Craig).

The Supreme Court has found that the “unnecessary and wonton” criterion, applies to conditions of confinement if there is a “deliberate indifference to conditions posing a substantial risk of serious harm” (Cruel).  Such violation may arise from grossly unsanitary conditions or inadequate access to health care, including for mental health. This is not a mandate for “comfortable prisons,” but a prohibition on inhumane conditions of confinement. The Supreme Court holds that the only thing prison must provide are the “minimal civilized measure of life’s necessities” (Cruel). This is precisely what prisoners are denied in solitary confinement.

A solitary confinement cell door with open food slot. For many prisoners in solitary receiving their food becomes their most significant human contact.

A solitary confinement cell door with open food slot. For many prisoners in solitary receiving their food becomes their most significant human contact. Image Source.

Aristotle said “man is a social animal”; this is oft quoted but must not be forgotten. Harry Harlow’s rhesus monkey experiments (Gawande), the experience of those raised in Romanian orphanages (Barampour), and now those in solitary confinement starkly illustrate the undeniablility of Aristotle’s assertion and the need to remember his maxim. The near absence of external stimuli and meaningful human contact wreaks havoc on the minds of those so confined. Prisoners often exhibit symptoms similar to PTSD such as panic attacks, anxiety, loss of control, excessive anger, paranoia, hallucinations, depression, insomnia, self-mutilation, and even a complete descent into psychosis (Craig, Bond). After controlling for mental illness, age, gender, race and other variables one study found that prisoners who had been in solitary confinement were 6.6 times more likely to commit self-harm than the general population (Metcalf). There is something seriously wrong with our justice system when such a punishment is not only allowed, but occurs commonly in our prisons. We are forcing inmates, some of whom are mentally ill (Craig) to be put in a PTSD inducing environment and many officials still condone the practice.

Solitary is a punishment that causes real and lasting damage and goes beyond the usual safeguard and boundaries we have set up for physical violence. Senator John McCain, recalling his time in captivity during the Vietnam War said, “It’s an awful thing, solitary, it crushes your spirit and weakens your resistance more effectively than any form of mistreatment” (Gawande). A military commissioned study confirmed McCain’s thoughts. Researchers interviewed almost one hundred and fifty naval aviators imprisoned during the Vietnam War. It found that those who endured solitary considered it just as torturous as any of the considerable physical abuse they suffered (Gawande). The UN has condemned the practice as torture and said that solitary confinement greater than fifteen days should be completely banned (Solitary)—remember: the US has held, and continues to hold, prisoners in solitary for multiple decades. The deprivation of stimuli and social contact that prisoners in solitary confinement experience is an act of violence on the mind of the prisoner that constitutes a denial of essential human needs. Solitary constitutes a punishment that is both “unnecessary and wonton.”

The second criterion to consider is if solitary complies with “evolving standards of decency” (Dayan, Cruel). It is important to understand that the only real advocates for continuing the practice are those in correctional services. Medical professionals from diverse disciplines—from neurobiologists to psychologists—oppose the practice, human rights watchdogs like the ACLU and others oppose the practice, even scholars and researchers of correctional practice oppose the practice. Possibly most condemning, the western industrial countries of the Europe do not find it necessary. The UN already denounces the practice, and many European countries have banned the practice. Those that have yet to ban solitary use it much more sparingly in terms of number of inmates and length of sentence than the US (Gawande, Craig). For instance, in comparing solitary confinement populations, the small state of Maine has more such inmates than the entirety of the United Kingdom (Craig). Though, as a whole, the nation does not enjoy a consensus, there is an overwhelming support for a ban amongst domestic experts and the international community of developed nations.

Still, many of those in corrections maintain that solitary confinement is necessary. Why do they do so? In the mid-seventies, corrections philosophy shifted from a rehabilitation model to a punishment and detention model. This greatly reduced the number of incentives that guards and management could use to control their wards. To make matters worse, the deinstitutionalization of the mentally ill meant that prisons were now receiving mentally ill persons who the guards were not trained to work with or control (Craig). Those that work in corrections should not be vilified. Given the current conditions in prisons, corrections officials are forced to conclude that solitary confinement is necessary of US prisons. Other modern advanced countries and our own penal history both show us solitary is unnecessary.

I have laid out the case for why solitary confinement constitutes a “cruel and unusual punishment” under existing definitions. For decades we have been allowing this punishment, which goes against our core values, to go unchallenged in the still silence and hidden corners of America’s prison system. Once we accept it the work can begin to reform our prisons so that this ultimate deprivation is no longer a “necessary evil.”

Works Cited

Barampour, Tara. “Romanian orphans subjected to deprivation must now deal with dysfunction.” WashingtonPost.com. The Washington Post, 30 Jan. 2014. Web. 7 Mar. 2015. http://www.washingtonpost.com/local/romanian-orphans-subjected-to-   deprivation-must-now-deal-with-disfunction/2014/01/30/a9dbea6c-5d13-11e3-be07-006c776266ed_story.html.  

Bond, Michael. “Does solitary confinement breach the eigth amendment?” NewScientist.com. The New Scientist, 29 June 2012. Web. 7 Mar. 2015. http://www.newscientist.com/article/dn21992-does-solitary-confinement-breach-the-eighth-amendment.html#.VPtyqGa8r8c.  

“Craig Haney: Solitary Confinement is a ‘Tried-and-True’ Torture Device.” PBS.org. Frontline, 22 Apr. 2014. Web. 7 Mar. 2015. http://www.pbs.org/wgbh/pages/frontline/criminal-justice/locked-up-in-america/craig-haney-solitary-confinement-is-a-tried-and-true-torture-device/.  

“Cruel and Unusual Punishment.” Legal Information Institute. Cornell University Law School, n.d. Web. 7 Mar. 2015. https://www.law.cornell.edu/wex/cruel_and_unusual_punishment.  

Daly, William. “Segrgation: A Necessary Evil.” CorrectionsOne.com. CorrectionOne, Acc: Web. 7 Mar. 2015. http://www.correctionsone.com/products/corrections/articles/6176725-Segregation-A-necessary-evil/    

Dayan, Joan. “Cruel and Unusual: the end of the eigth amendment.” BostonReview.net. The Bost Review,7 Acc: Oct. 2004. Web. 5 Mar. 2015. http://bostonreview.net/dayan-cruel-and-unusual. Gawande, Atul. “Hellhole.” TheNewYorker.com. The New Yorker Magazine, 30 mar 2009. Web. 5 Mar. 2015. http://www.newyorker.com/magazine/2009/03/30/hellhole

Metcalf, Hope and Morgan, Jamelia and Oliker-Friedland, Samuel and Resnik, Judith and Spiegel, Julia and Tae, Haran and Work, Alyssa Roxanne and Holbrook, Brian, “Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies” (June 1, 2013). Yale Law School, Public Law Working Paper No. 301. http://ssrn.com/abstract=2286861

Metzner, Jeffrey L. “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics.” Journal of the American Academy of Psychiatry and the Law 42.4 (2014): 104-08. Journal of the American Academy of Psychiatry and the Law Online. Web. 5 Mar. 2015. http://www.jaapl.org/content/38/1/104.full. “Solitary confinement should be banned in most cases, UN expert says.” The UN News Center. The UN New Service, 18 Oct. 2011. Web. 7 Mar. 2015.  https://www.un.org/apps/news/story.asp?NewsID=40097&;Cr=torture&Cr1= ForceRecrawl: 0.  

Wright, David. “Getting Out of the Asylum: Understanding the Confinement of the Insane in the Nineteenth Century.” academia.com. academia.com, 1997. Web. 7 Mar. 2015. http://www.academia.edu/894595/Getting_Out_of_the_Asylum_Understanding_the_Confinement_ of_the_Insane_in_the_Nineteenth_Century.

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3 responses to “An Unacceptable Cruelty: The Constitutionality of Solitary Confinement

  1. Connor: Thanks for a good essay on a topic of importance to me. I was able to follow the argument easily and thought you raised useful points in terms of the constitutional test of “cruel and unusual.” You don’t address why solitary confinement is still legal in the US.–in other words, there must be some compelling legal arguments on that side as well. I would have been interested in those. You did touch briefly on a couple of things–punishment vs. rehab and more mentally ill people in prison–but I thought these arguments deserved more discussion. A case study of the kind of trauma this penalty creates might have really helped you bring your point home. There’s more ethos in this topic than the essay brought out.

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  2. This essay jibes well with your earlier essay on LWOP. Prison overcrowding itself may create conditions wherein prisoners become harder to supervise and control leading to escalation of privilege denial. Ironic isn’t it: prison overcrowding leading to solitary confinement. Very well written; your arguments are well laid out and easily followed.

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