Matthew T. Mangino
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.
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.
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.
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
The group issued a 90-page report proposing widespread reform of solitary confinement.
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.
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
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
The bill also calls for major changes in the use of
solitary confinement in the punishment of the mentally ill and juvenile
“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.”
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 www.mattmangino.com and follow him on
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Michael Gargiulo, Pretrial Hearing 45
3 weeks ago