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Deconstructing Flaws In Important New Report On Solitary Confinement

A new report on solitary confinement provides access to important data on the number of people in some form of solitary confinement in the United States. However, because the United States prison system is not one body but a collection of fiefdoms that set their own administrative rules and definitions, the data does not fully capture the reality of solitary confinement in the country.

The difficulties the Association of State Correctional Administrators (ASCA) and Yale Law Schools’ Liman Program encountered in collecting and reporting on data suggest the report’s findings should be considered low-end estimates of the use of solitary confinement in America. They are also a wake-up call regarding the shameful lack of transparency regarding one of the most controversial aspects of the nation’s gargantuan correction system.

Researchers sent a survey out to corrections departments across the country, but the data that came back was incomplete. Maine did not respond to the survey at all, and other jurisdictions failed to respond to every question asked.

Importantly, researchers were unable to get a true picture of the use of solitary confinement in county jails, which house roughly 646,000 of the 2.3 million people behind bars in America. That is because not all state governments have jurisdiction over county jails. Roughly 90 percent of jails are operated at the county level. The report also omits data on juvenile, military, and immigration facilities—all of which have various kinds of isolation units.

Information on isolation in private prisons was limited because not all jurisdictions, which use private prisons, had access to data or shared data on the subject.

Similarly, little information was provided on the number of juveniles in isolation. “Four responding jurisdictions indicated that their correctional systems included juvenile facilities,” the report notes. “Of these four jurisdictions, three provided data on the use of restricted housing in these juvenile facilities.”

Seven jurisdictions were unable to identify “whether prisoners were in restricted conditions for more or less than the 15-day benchmark.” Others “did not have clear information about the 22-hour measure; they described some forms of isolation that reduced the number of hours within cells to below 22 for at least one day of a week, or they had other questions about the definition.”

The report attempted to examine reform efforts across the various jurisdictions in which people are incarcerated but “did not inquire into either the details or metrics of implementation.” Nor did the report “conduct case studies to learn about the effects, in practice, of the new policies described.”

While reforms aimed at reducing the number of people in solitary are welcome and necessary, the conditions and structures replacing solitary are important to examine. It is important to understand the experiences of those counted in the data sets. The tendency to focus on the act of reform instead of its results and the material experiences it produces not only obscures shortcomings. It also limits the conversation so abolition of the practice is not considered.

For example, consider the focus on reducing placement in isolation by narrowing admission criteria and creating alternatives to isolation. While this has served to reduce numbers, some advocates have argued corrections departments are simply rebranding isolation, spreading populations across various specialized “restricted housing” units. One example of this is in New York City, where an Enhanced Supervision Housing Unit meant to serve as an alternative to isolation appears to be a new and brutal permutation of solitary confinement.

The focus on releasing a prisoner from isolation just as soon as they have been placed there is another well-intentioned reform, which has taken the form of time limits, step-down programs, and increased oversight of placement and retention decisions. Yet, some advocates (and even this report’s authors) have admitted the time limits are just as arbitrary as the unregulated solitary sentences previously handed down by corrections departments. They have no real grounding in empirical data or effectiveness.

Step-down programs can work but largely depend on the personality of the person running the programs. Sometimes such programs can trap prisoners in solitary by posing insurmountable obstacles to release. In other cases, prisoners, who complete step-down programs, wind up back in isolation soon after.

Increased oversight of placement and retention decisions are also positive developments, but the enforcement of that oversight is just as important.

Mandated out-of-cell time is another popular reform method. However, its effectiveness in improving conditions for prisoners is limited when that mandated time is considerably short and prisoners are only allowed to exit their cells into cramped and restrictive ‘recreation’ space, sometimes the same size as (and sometimes directly outside of) the prisoner’s solitary cell.

While there is an emerging consensus that prisoners in solitary be housed in a humane environment and offered programming, the details of how that happens are often less promising.

In some cases, decisions seem more like absurd and backhanded concessions than earnest attempts at improving a prisoner’s quality of life. For example, Oregon prison officials attempted to engage in such reforms by creating a “blue room,” “where images of nature were projected onto the walls.” South Dakota built “outdoor recreation enclosures,” “installing windows to provide additional natural light to prisoners, and installing televisions outside of cells, so that segregated prisoners could watch news or the weather channel during the daytime.

Efforts have also been made to improve hiring practices and provide more training to staff in isolation units to minimize abuse. But there is a fine line for deciding what kind of treatments and responses are ethical and what are not within solitary confinement units.

For these reasons, it is hard to know the degree to which modifying solitary confinement results in material improvements to conditions facing prisoners in solitary. The survey did not inquire “into whether jurisdictions regularly audited their facilities to learn if the parameters were consistently met. For example, we did not ask about what methods were used to ensure that individual prisoners were out of their cells for the time stipulated in rules, nor did we learn how often or for how long lockdowns occurred during which no prisoners were permitted to leave cells.”

Because there is no real central authority or reporting requirements across U.S. corrections systems, the task is ultimately left up to outside groups to research in an attempt to ascertain the big picture.

While the ASCA should be commended for devoting the time and resources to producing such a challenging report, it must be noted that the ASCA are hardly neutral authors. The organization describes itself as “the association of persons directly responsible for the administration of correctional systems” and includes “the heads of state corrections agencies, the Federal Bureau of Prisons, the District of Columbia Department of Corrections, and some large county jail systems.”

ASCA is among the country’s powerful corrections associations, which play a major role in corrections lobbying and reform. The report notes that “some prison administrators are “abolitionists,” in the sense that they would—if they could—end solitary confinement and find methods to ensure that no person remain for more than 15 days in 22-in-cell hours continuously.” However, the organization has primarily advocated to reduce the “overuse” of solitary confinement while declining to explore ways to eliminate it entirely.

Groups like ASCA, officers unions, and other interests support maintaining isolation in one form or another because they believe it is integral to maintaining the order and security of their institutions. The continuation of solitary confinement allows these players to maintain staffing levels and receive federal funding as well.

And yet, the report itself notes there is no real empirical data backing up the assertion that there are actually proper and effective ways to isolate people.

“A question emerges about why 22 hours or more should be definitional of isolation,” the report states. “The question is whether a move to 21 (rather than 22) hours in-cell responds to alleviate the harms of isolation. Equally important is the length of time a person is subjected to isolating conditions, and how to assess the number of hours in-cell within the context of the length of time confined in that manner.”

“How many hours in continual confinement in a cell for how many days should be seen as impermissible? Moreover, prisoners may be held in their cells for days (if not 15 consecutive days) for 22 hours or more. Further, in many systems, the small amount of time out-of-cell that is permitted is spent in enclosed cubicles, sometimes without any natural light.”

The report concedes making minor adjustments to the number of hours in solitary or providing “time out-of-cell in very tight spaces” does not respond to the ASCA’s stated goals of “changing the conditions of confinement in significant ways.”

This necessarily raises the question of whether solitary confinement should be abolished. “Doing so would reflect that the separation of individuals to promote safety and well-being need not be accompanied by deprivation of all opportunities for social contact, education, programming, and other activities,” the authors note.

“We have always understood that isolation ought not itself be understood ‘in isolation,'” they continue. “Restricted housing practices are on a continuum with the placement of prisons in rural settings, far from the homes of many of the prisoners and imposing difficulties in having both able staff and volunteers, as well as regular visits by family members.”

“As the nation revisits its decades of over-incarceration, it must address restricted housing in the context of prison policies and criminal justice practices in general,” they conclude, which is to say that questioning the foundation of solitary confinement raises questions about the prison system as a whole, which is a larger embodiment of punitive isolation.

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Brian Sonenstein

Brian Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.