Solitary Confinement: It Defines Who We Are

COMMENTARY

Cruel and unusual-Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In TheNew York Times’ “New York State in Deal to Limit Inmate Isolation,” Benjamin Weiser describes an agreement between the New York Civil Liberties Union and the New York Department of Corrections.¹The agreement delays litigation of a suit filed in 2012, by the NYCLU, over the use of isolation for punitive purposes within New York State prisons.² Their comprehensive report, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons, details the basis of the lawsuit.³ Mr Weiser refers to the provisions in the new agreement as “sweeping reforms.”

Highlights of the New York State agreement

include: 1) prohibiting the use of solitary confinement for prisoners under age 18 years; 2) prohibiting its use with pregnant women; and 3) limiting its use with developmentally disabled prisoners to a maximum of 30 days.

⁴

The prohibition against solitary confinement for these “special” populations acknowledges that the practice is harmful to human beings. And imposing these limitations by category admits that, however dangerous the pregnant woman or the adolescent is judged to be, somehow the system will find a way to avoid implementing this administrative, ie, non-judicial, punishment.

Sweeping reforms? While it may be a relief to New Yorkers that pregnant women and high-school age prisoners will no longer to be subjected to solitary confinement, the reforms that the New York Times calls “sweeping” in fact allow this practice to continue for a minimum of 2 additional years.^1,2 These “sweeping reforms” simply protect those who can’t protect themselves (teenagers, unborn children, and the developmentally disabled), those who almost anyone with a bit of common sense, humanity, or political astuteness would exempt. For the vast majority of prisoners, no such limitations have been imposed, nor will any be imposed in the near future because the agreement means “business as usual” until the next court hearing. In other words, it authorized 2 more years of being at risk for solitary confinement for most inmates. The NYCLU and the Federal District Court in Manhattan gave the state of New York exactly what it wanted, and what the New York Times described as “sweeping reforms.”

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Most of our society agrees that lost, stray, and unwanted animals should be treated in a caring and humane manner. Shouldn’t our fellow human beings be treated at least as well as our stray animals while “paying their debt to society?” Would anyone allow a stray or unwanted dog to be socially isolated for 5 months? I doubt it. But 5 months is the average duration for “extreme isolation” in New York State prisons-for human detainees!^1,3According to Rick Raemisch, the new head of the Colorado prison system, the average length of solitary confinement in Colorado prisons is 23 months. Some inmates there spend as many as 20 years in solitary.⁵

In corrections language, “solitary confinement” is referred to as “administrative segregation,” or (even more antiseptically) as “Ad Seg.”

Colorado experience

Rick Raemisch is also the former Sheriff of the county in which I have spent most of my professional life. He was recently appointed to replace Tom Clements as the Executive Director of the Colorado Department of Corrections. Mr Clements was brutally murdered at his front door in March 2013.⁶ The murderer had been released from solitary confinement directly into the community shortly before the murder. The sad irony is that Mr Clements, described by Mr Raemisch to be “as courageous a reformer as they come,” had already reduced the number of prisoners in solitary confinement by half in just 2 years.⁵The governor of Colorado gave Mr Raemisch 3 directives when he appointed him:

• Limit or eliminate the use of solitary confinement for mentally ill inmates.

• Address the needs of those who have been in solitary for long periods.

• Reduce the number of offenders released directly from solitary back into their communities.

To begin to understand these goals, Mr Raemisch spent 20 hours in solitary confinement in the Colorado State Penitentiary. Raemisch described his experience in an Op-Ed in the New York Times as “practically a blink” compared to the average stay.⁵ He later testified before a Senate subcommittee about his experience and recommendations.⁷

Following his single night in solitary-but before the end of his self-imposed sentence of 20 hours-Mr Raemisch broke a promise to himself and asked a guard for the time. It was 11:10 AM. “I felt as if I’d been there for days. I sat with my mind. How long would it take before Ad Seg chipped that away? I don’t know, but I’m confident that it would be a battle I would lose.”

I do not know Mr Raemisch personally. Before his New York Times Op-Ed, I knew of him only through his red campaign signs in our former neighborhood.⁸ I had voted for him for sheriff based on our local newspaper’s endorsement. He is a successful and seemingly dedicated individual. How many of us would spend a night in solitary, or a night as a patient in a public mental hospital, to better enable us do our jobs? I’ve never once considered doing such a thing. If Raemisch is “confident” that he would lose his mind in solitary confinement, it seems fair to assume that it’s a battle most of our patients would lose. And so would virtually every prisoner so treated.

The “social brain”

A very benign interpretation of the disciplinary use of solitary confinement is that it began when we didn’t know any better. We now understand that the brain evolved as a social organ-an organ that facilitates social interactions of all types, analogous to the heart and the lungs evolving as cardiovascular-respiratory organs.^9,10 Without social interaction, the mental human being ceases to exist, just as the physical human being ceases to exist if the cardiovascular system stops functioning. “I sat with my mind . . . it would be a battle I would lose.”

Perhaps this is naïve, but I recall as a child, touring many of the original 13 colonies with my parents, seeing historic replicas of pillories where convicted criminals endured the humiliation of rotten tomatoes and vegetables being being thrown at them in their obviously defenseless position. This was later declared “cruel and unusual punishment.” At least that punishment was temporary. At least it was actually a social experience. It may have shamed and embarrassed, but it was social, and it was public. It was not an assault on the essence of the human brain and the brain’s emergent property of mind.

Human rights and solitary confinement

Although New York State had earlier banned the use of solitary confinement with seriously mentally ill prisoners, most states have not. This is significant for many reasons, one of which is that estimates of the incidence of serious mental illness in prisoners range from 20% to 40% and growing.^11,12 We may assume that over-represented in this population are prisoners with PTSD, major depression, bipolar disorder, and schizophrenia. What is the effect of any length of solitary confinement on persons with these disorders? Mr Raemisch, after 20 hours in solitary confinement, which he knew before hand would both be time-limited and could be terminated at any time, said it was a battle he “would lose.”

All state and federal prisoners have been convicted in a court of law and sentenced to these facilities. The sentence entails a loss of freedom and a loss of certain rights. But the right to be protected from “cruel and unusual punishment” is never lost.¹³ Solitary confinement for the overwhelming majority of prisoners is not ordered at sentencing. It is non-judicial. It is a second level of punishment wholly administered outside the judicial system. It is unrelated to due process, a trial by one’s peers, the assumption of innocence, the right to council, etc. Solitary confinement for most prisoners, in my opinion, is cruel and unusual punishment. Solitary confinement for prisoners with serious mental illness, in my opinion, is torture.

Solitary confinement literature

Most psychiatrists and other experts working with prison populations have expressed deep concern about the use of solitary confinement with seriously mentally ill prisoners, including excellent reviews by Metzner,¹⁴ and Metzner and Fellner.¹⁵However, a recent study, flawed in my opinion, deserves comment as it appeared to show no harm associated with solitary confinement for inmates-regardless of whether they were diagnosed with mental illness.¹⁶ Coincidentally, it was conducted in Colorado where there is continuing commitment for reform, and at the same facility where Mr Raemisch spent 20 hours in voluntary “administrative segregation.” Furthermore, Dr Metzner and Mr Fellner were co-authors of this recent report, but neither was the lead author.

Study design for this problem is challenging. The logical comparison groups are fellow inmates: those with and without mental illness-subjected to solitary confinement or not. However, that imposes the confounding variable that all subjects are incarcerated whether or not subjected to solitary. Of the 302 inmates in the original study population, 55 either refused to participate or were removed from the study due to behavioral issues. Difficulties with determining subject motivation for participation, and perhaps the skewing of subject responses for the perceived benefit of the investigators cannot be measured.

Lastly, the only measure of psychological distress reported was the Brief Symptom Inventory,¹⁷ certainly not comparable to comprehensive psychological or psychiatric evaluations. Of course, no pre-incarceration studies were available either for comparison. Subjects with mental illness subjected to solitary had more difficulty at each measurement interval than their non-solitary comparison groups, but all groups showed diminished symptoms over the one-year duration of the study. The findings could [cynically] be used to argue that all patients could be kept in solitary confinement without concern for psychological harm.

Conclusion

Some detainees in the state and federal prisons have committed crimes that many of us can never forgive. But how we treat such people beyond the loss of freedom and certain rights is entirely about who we are as a society. It is not about them or what they did. It is about us.

The bottom line: solitary confinement is “cruel and unusual.” And solitary confinement for the seriously mentally ill is torture. We don’t subject stray dogs to solitary confinement––because we know it would be unethical. This issue defines who we are as a society. Are we comfortable with that identity? I hope not.

-Douglas A. Kramer, MD, MS

Additional resources from National Public Radio (NPR), 2006-2014

• Mann, B. N.Y. Becomes Largest Prison System To Curb Solitary Confinement. NPR Weekend Edition, February 23, 2014.

• Sullivan, L. In U.S. Prisons, Thousands Spend Years in Isolation. NPR Special Series: Life in Solitary Confinement, July 26, 2006.

• Sullivan, L. At Pelican Bay Prison, a Life in Solitary. NPR All Things Considered, Life in Solitary Confinement, Part I, July 26, 2006.

• Sullivan, L. As Populations Swell, Prisons Rethink Supermax. NPR All Things Considered, Life in Solitary Confinement, Part II, July 27, 2006.

• Sullivan, L. Making It on the Outside, After Decades in Solitary. NPR All Things Considered, Life in Solitary Confinement, Part III, July 28, 2006.

• NPR Staff. Solitary Confinement: Punishment or Cruelty? NPR All Things Considered, March 10, 2013.

• Mann, B. N.Y. Becomes Largest Prison System To Curb Solitary Confinement. NPR Weekend Edition, February 23, 2014.

Disclosures:

Dr Kramer is Emeritus Clinical Professor of Psychiatry, University of Wisconsin School of Medicine and Public Health, Madison, Wisconsin. He is also Chair, Committee on Research, Group for the Advancement of Psychiatry; and a Distinguished Life Fellow, American Academy of Child & Adolescent Psychiatry. He writes a column for AACAP News, “The Biological Roots of Child Psychiatry.”

References:

1. Weiser B. New York State in deal to limit inmate isolation. New York Times. A1. February 20, 2014. Accessed May 15, 2014.

2. Secret M. New York State is sued over use of isolation in its prisons. New York Times. A36. December 7, 2012. Accessed May 15, 2014.

3. Kim S, Pendergrass T, Zelon H. Boxed in: the true cost of extreme isolation in New York’s prisons. New York Civil Liberties Union, 2012.

4. Peoples v. Fischer, 11-CV-2694 (USDC SDNY, 2014).

5. Raemisch, R. My night in solitary. New York Times. A25. February 21, 2014. Accessed May 29, 2014.

6. Crowley C. Hickenlooper: “A nightmare I couldn’t wake up from.” State of the Union, Cable News Network, March 24, 2013. Accessed May 29, 2014.

7. Goode E. After 20 hours in solitary, Colorado’s prisons chief wins praise. New York Times. A16. March 16, 2014. Accessed May 29, 2014.

8. Elbow, S. Former Dane County sheriff Rick Raemisch spends a night in the hole. The Capital Times. February 25, 2014. Accessed May 29, 2014.

9. Cheney DL, Seyfarth RM. How Monkeys See the World: Inside the Mind of Another Species. The University of Chicago Press, 1990.

10. Kramer DA. Commentary: gene-environment interplay in the context of genetics, epigenetics, and gene expression. J Am Acad Child Adolesc Psych. 2005;44:19-27.

11. Kramer DA, Verhulst J. Guns, violence, and mental health: did we close the state mental hospitals prematurely?Psychiatric Times. 2013;30(6):34-25. Accessed July 18, 2014.

12. Kramer DA. Jails that masquerade as psychiatric hospitals. Psychiatric Times. January 27, 2014. Accessed 01/27/2014.

13. Congress of the United States. Amendment VIII to the Constitution, March 4, 1789.

14. Metzner J. Evolving issues in correctional psychiatry. Psychiatric Times. September 1, 2007. Accessed May 29, 2014.

15. Metzner JL, Fellner J. Solitary confinement and mental illness in US prisons: a challenge for medical ethics. J Am Acad Psych Law. 2010;38:104-108.

16. O’Keefe M, Klebe KJ, Metzner J, et al. A longitudinal study of administrative segregation. J Am Acad Psych Law. 2013;41:49-60.

17. Derogatis L. Brief Symptom Inventory: Administration, Scoring, and Procedures Manual. Minneapolis: NCS Pearson Inc, 1993.