Saturday, January 23, 2016

GateHoue: Antipathy grows for solitary confinement

Matthew T. Mangino
GateHouse Media
January 22, 2016

“Sending hardened criminals from death row to solitary confinement is no triumph,” wrote Ninth Circuit Court of Appeals Judge Alex Kozinski in a recent editorial for the Yale Law Review Journal. “It merely swaps one type of death for another.”
“Taking prisoners off death row and putting them in supermax prisons may soothe our collective conscience ... But we may be condemning those inmates to decades-long torture that may make a swift execution look like an act of grace,” added Kozinski.
What Judge Kozinski overlooks is that not every life sentence is served in solitary confinement. But solitary confinement is painful, degrading and a safety issue inside and out of the prison.
For many policy makers and activists, curbing the use of solitary confinement is a moral imperative, wrote Maurice Chammah for The Marshall Project.
Depriving prisoners of human contact exacerbates and even produces mental illness, increases the risk of suicide, and generally engenders a sense of hopelessness. There is a ground swell of support for criminal justice reform and solitary confinement is front and center.
Chammah asks if motivation for change comes from political pressure, court orders, the high cost of solitary cells, or genuine human concern — regardless of the motivation, prison administrators are on board.
Even the U.S. Supreme Court took note of the agony of solitary confinement. Justice Anthony Kennedy described the “human toll wrought by extended terms of isolation,” the “terrible price” exacted by “years on end of near-total isolation,” including anxiety, self-mutilation, and suicide.
Kennedy brought up the issue of isolation during an argument that had nothing to do with solitary confinement, indicating his growing concern and sense of urgency about an issue that has far reaching implications for the criminal justice system.
According to Slate, Kennedy lauded “penalogical [sic] and psychology experts, including scholars in the legal academy,” for offering “essential information and analysis” about the horrors of solitary confinement.
Last fall, the Prisoner Reentry Institute at John Jay College in New York conducted a colloquium on solitary confinement that included the leaders of 15 corrections agencies across the country, as well as leading academic experts and advocates.
The group issued a 90-page report proposing widespread reform of solitary confinement.
“The purpose was to determine if consensus might be achievable about ways to achieve (these) long sought-after reforms by common agreement and without resort to litigation,” former California and Pennsylvania Corrections chief Martin Horn told The Crime Report.
The colloquium recommendations included: Mandating solitary confinement within prison only on the grounds of behavioral issues; exclude persons with mental illness and other vulnerable populations; limit periods of social isolation to “the least amount of time necessary and in the least restrictive conditions.”
Congress has now taken up the torch. The Solitary Confinement Study and Reform Act of 2015 proposes establishing a commission to recommend reforms to Congress and the Obama administration, reported The Times Picayune.
The bill requires the Department of Justice to issue regulations on best practices for federal prisons, and provide incentives for changes in operations of state and local prisons.
The bill also calls for major changes in the use of solitary confinement in the punishment of the mentally ill and juvenile offenders.
“We have abused the practice of solitary confinement to the point where it has become modern day torture,” Congressman Cedric Richmond, one of the bill’s lead sponsors, told The (New Orleans, Louisiana) Times-Picayune. “Too many prisoners, including the seriously mentally ill and juveniles are locked away for 23 hours a day, often with little to no due process and at a steep cost to the taxpayer.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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