PLW: Solitary Confinement: The Prison Within a Prison

Matthew T. Mangino

Pennsylvania Law Weekly

January 12, 2017

A recent article in the New York Review of Books examined an art exhibition at the former Reading Prison in Berkshire, England. The prison, formerly known as the Reading Gaol, was for about two years the residence of Irish playwright Oscar Wilde.

At the time, Gaol was run according to the "principles pioneered at the Eastern Penitentiary in Philadelphia." Inmates were locked up for 23 hours a day in complete solitary confinement. It was 1897, and inmates, when exercising in the yard or attending services in the chapel, were isolated from one another in boxes and were made to wear hoods. Strict silence was enforced.

One hundred and eighteen years later, in a U.S. Supreme Court concurring opinion, Justice Anthony Kennedy questioned the continued use of solitary confinement.

The decision in Davis v. Ayala, 576 U.S. ___ (2015), had nothing to do with solitary confinement. The case dealt with a Batson challenge to a death sentence. Kennedy's concurring opinion received significant coverage from the media, and The Atlantic suggested that solitary confinement may become a "new battleground" for Kennedy.

Kennedy wrote that he wanted to address a matter that Ayala's counsel did not have a chance to expound upon during oral argument. Kennedy described solitary confinement in much the same way it existed in the time of Wilde. Inmates held "in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone."

Kennedy cited 18th-century British prison reformer John Howard who wrote in "The State of the Prisons in England and Wales," "that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes."

The concurrence by Kennedy also invoked literature, Charles Dickens in his 1859 masterpiece "A Tale of Two Cities," "recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings."

In 1890, the U.S. Supreme Court recognized that solitary confinement bears "a further terror and peculiar mark of infamy." In In re Medley, 134 U.S. 160 (1890), the court further found that, "A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semi-fatuous condition ... and others became violently insane; others, still, committed suicide."

Yet, the high court has yet to definitively determine whether solitary confinement violates the Eighth Amendment's ban against cruel and unusual punishment.

In September, a Pennsylvania federal judge ordered prison officials to come up with a plan to release an inmate from solitary confinement.

Arthur Johnson's lawyers contend that for the last 37 years, their client has been held in an artificially-lit cell "approximately seven feet by 12 feet." He has been permitted one hour of time outside, weather permitting, in a cage roughly the size of his cell. He has not had physical contact—not touched another human being—in decades. According to The Daily Beast, lawyers argued solitary confinement had deprived Johnson of "basic and fundamental human needs" like "mental health and environmental stimulation; social interaction; sleep; a reasonable opportunity to exercise; and dignity."

This comes after a January 2015 settlement, wherein the Pennsylvania Department of Corrections agreed to a complete, statewide overhaul of its policies and practices affecting prisoners in solitary confinement.

The settlement in Disability Rights Network v. Wetzel provides the DOC will stop housing inmates with serious mental illness in the harsh conditions of solitary confinement. New treatment units are to be established to provide appropriate mental health treatment.

While there will continue to be secure units for some inmates, even those units will provide significant out-of-cell time both for therapeutic and non-therapeutic activities. These new units and the treatment and programming provided in them are aimed at ensuring that inmates with serious mental illness have the least amount of restrictions placed on them as clinically necessary.

U.S. District Chief Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Department of Corrections (DOC) concerns that Arthur Johnson might try to escape, are outweighed by Johnson's argument that the confinement amounts to cruel and unusual punishment in violation of the Constitution's Eighth Amendment.

University of Pittsburgh law professor Jules Lobel, who worked on Johnson's suit, told the Pittsburgh Post-Gazette, "I believe it is the first time that an inmate has been ordered released who was not shown to be mentally ill."

Johnson was released to the general population at SCI Greene last week.

The pervasive use of solitary confinement for problematic inmates with mental illness is egregious. Solitary confinement, or restricted housing units (RHU) as they are referred to by the Pennsylvania Department of Corrections, have a place in prison management.

The RHU is like a prison within the prison. Inmates violate prison policy, they commit misconducts in much the same way they committed crimes. The "sentence" for a misconduct might be time in the RHU. The use of solitary confinement in this manner is an appropriate administrative tool to manage a prison.

However, throwing an inmate in RHU and throwing away the key, especially those who act out because they are laboring under a mental defect, is unconscionable.

A report released this summer by the Center for American Progress, "Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America's Jails and Prisons," highlights the tragic intersection of two policy shifts. First, the movement toward mass incarceration; second, an underfunded "deinstitutionalization," or removing people with disabilities from mental hospitals without making simultaneous public investments in community treatment. These policies have resulted in the criminal justice system assuming responsibility for mental health treatment—turning prisons into de facto mental hospitals.

According to the ACLU, "Solitary confinement is psychologically difficult for even relatively healthy individuals, but it is devastating for those with mental illness. ... Many engage in bizarre and extreme acts of self-injury and suicide."

There is also a longstanding practice in some prisons of keeping LGBT prisoners in near permanent solitary confinement, under the guise of protecting them from abuse.

Finally, the majority of death-row inmates, around 3,000 inmates in 35 states, are held in perpetual confinement. In Pennsylvania, the roughly 186 inmates sitting on death row have little chance of being executed.

Pennsylvania has made an effort to deal with mental illness in prison, which often leads to prisoners so inflicted to experience stints of solitary confinement and prolonged prison stays. Department of Corrections Secretary John Wetzel announced that 1,000 staff members have received Crisis Intervention Team training aimed at improving response to inmates with mental health needs.

"We have made significant improvements to our mental health services and key to all of the services being successful is how our employees respond to a mental health crisis at the onset," Wetzel said in a press release.

Inmates with mental illness are no longer held in solitary confinement. Additionally, all staff members—15,000 to 16,000 people, according to Wetzel—are trained in mental health first aid (MHFA).

MHFA is an eight-hour course often compared to CPR training or basic first aid training, reported CNN. DOC staff learns to identify warning signs of a suicide attempt, and how to intervene when someone is experiencing delusions. They are also trained on the various symptoms of mental illnesses.

Twenty thousand people leave our prisons every year and we want them to return to their communities healthier than when they arrived," Wetzel said. "Increasing the level of staff training on mental health issues is one important step toward achieving that goal." •

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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