by Megan Coggeshall, University of Chicago Law School Class of 2019
In the United States alone, there are an estimated 80,000 inmates held in solitary confinement. These people are kept alone in their cells for an average of 23 hours per day and have very little opportunity for human contact. The cells where inmates are isolated are small—on average 85 square feet—and contain a bed and desk, sometimes both made of concrete, as well as a metal toilet-sink combination. Most cells don’t separate the toilet from the rest of the cell, leaving inmates to eat within close proximity to it. Inmates generally spend the one hour outside their cell exercising alone in a small, sometimes caged-in area, that isn’t always outdoors. When these inmates are allowed visits, they are separated from their families by a partition, so they may go years without any meaningful human contact.
There isn’t a clear explanation for the starkness of conditions in American solitary confinement units. However, there is a higher public demand for punitive treatment of prisoners in the United States than in many other countries. This public sentiment is exacerbated by the proliferation of for-profit prisons that try to cut whichever services they can to reduce costs, and the predominant view in politics that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”
Two things, however, are clear: time spent in solitary confinement is deeply harmful to both the mental and physical health of inmates, and one struggles to identify a real benefit of the practice that could justify the cost. Many inmates experience panic, anxiety, rage, depression, and hallucinations in response to solitary confinement. Inmates in solitary confinement also engage in disproportionately high rates of self-harm and suicide compared to the general prison population. Common physical harms of prolonged solitary confinement include headaches, hypertension, heart palpitations, digestive problems, and weight loss. These harmful effects can become permanent within 15 days, making reintegration into the general prison population and release from prison difficult. Studies suggest that time spent in solitary confinement increases recidivism, especially when prisoners are released into the community directly from solitary confinement.
According to international human rights standards, the American status quo isn’t compatible with basic principles of human dignity. Indeed, the Office of the UN High Commissioner for Human Rights recommends abolishing or strictly restricting the use of solitary confinement. Even without eliminating solitary confinement, there is much that the United States can do to ensure more sincere compliance with Article 10 of the International Covenant on Civil and Political Rights, which guarantees the right of all inmates to be treated with humanity and respect for their inherent dignity. Part of this requires recognition that, under some circumstances, the use of solitary confinement can be considered torture, or other cruel, inhuman, or degrading treatment or punishment (CIDT). Imprisonment—the loss of freedom—is itself a profound punishment, and prison conditions should not aggravate inmates’ suffering.
Mindful of these considerations, the United Nations created prison standards to guide countries’ prison policies and ensure they do not subject inmates to conditions amounting to torture or CIDT. The latest version of the Standard Minimum Rules for the Treatment of Prisoners was published in 2015 (known as the Mandela Rules). Many of the United States written policies for federal prisons conform to these guidelines. However, there are also many situations where the Mandela Rules go further to protect the health and well-being of inmates, particularly when considering the amount of discretion American prison officials have over prison operation in practice. For example, unlike in the United States, the Mandela Rules require that prisoners have access to at least one hour of outdoor exercise per day. The Rules also require more human contact by prohibiting limitations on family visits as a disciplinary sanction and allowing for social contact among prisoners. Additionally, and perhaps most importantly, the Mandela Rules limit the number of consecutive days a prisoner can be in solitary confinement. In fact, the UN considers indefinite solitary confinement and, in most cases, solitary confinement exceeding 15 continuous days, to be torture or CIDT due to the potentially permanent health effects described earlier.
This is not to say, however, that change is not possible in American prisons. In fact, the past few years have seen many reforms at the state and federal levels that are bringing the United States closer to compliance with the Mandela Rules and to ensuring humane treatment of inmates in solitary confinement.
For example, in 2016, then president Obama issued an executive order banning solitary confinement for juvenile offenders in the federal prison system. This executive action also prohibited solitary confinement as a disciplinary measure for prisoners who commit low-level infractions. When solitary confinement is used, the new policies implement a Department of Justice report which suggested increasing out of cell time to improve mental health, and discouraged placement in solitary confinement during the last 180 days of inmates’ terms to facilitate the transition back to the community. Additionally, the rules now limit solitary confinement as punishment for a first offense to 60 days. This is an improvement from the previously permitted 365 days, but still fails to conform to international standards both in duration and in purpose since international standards discourage the use of solitary confinement as punishment.
One recent reform at the state level is the implementation of “step-down” programs that allow inmates in solitary confinement to gain more out of cell time and access to programming as they move down security classifications through good behavior. Additional activities include sports equipment during recreation, in-cell televisions, or more phone calls and visits. Again, while this is an improvement, some of these earned privileges, like adequate visits, are considered the minimum under international human rights law. Additionally, many inmates in solitary confinement struggle with mental illnesses that may make effective participation in these programs difficult unless prison officials are trained to identify symptoms of mental illness.
Lawsuits alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment have also led to reforms at the state level. For example, because of a settlement in Delaware, inmates who need mental health services now have access to them. Delaware inmates now must have their mental health considered prior to placement in solitary confinement, they must spend at least 17.5 hours per week out of their cells, and prisons must create individualized mental health treatment plans.
Colorado has become a leader among the states in voluntarily setting humane solitary confinement standards. In 2013, the state prohibited the use of prolonged solitary confinement for seriously mentally ill prisoners. It also recently passed a law banning the use of solitary confinement for more than 15 consecutive days for all inmates, becoming the only state to meet international standards on duration of solitary confinement. Colorado’s changes were inspired by the Head of Corrections’ participation in drafting the Mandela Rules. He became convinced that prolonged solitary confinement is unethical since it manufactures and aggravates mental illnesses. After implementing these reforms and others, Colorado’s solitary confinement population decreased from 1,500 in 2011 to 18 in 2017.
These reforms are a step in the right direction toward ensuring more humane conditions of solitary confinement in the United States. However, since the reforms are largely proceeding state-by-state, the country has a patchwork of laws that provide prisoners with varying levels of protection. For example, many states still allow solitary confinement for people with serious mental illnesses and minors, or permit indefinite solitary confinement. To ensure that every prisoner is treated with dignity and respect, the United States must continue to reform its solitary confinement practices. Turning to international human rights standards for guidance, as Colorado has done, is a good place to start.
For more information about efforts to reform solitary confinement practices in the United States see: the ACLU solitary confinement project, Solitary Watch, the Vera Institute of Justice, and Amnesty International.