Solitary Confinement: The Law Today and the Way Forward
Cockrell, John F., Law and Psychology Review
This note examines the practice of solitary confinement in modern "supermaximum" security prisons in the United States. It argues that solitary confinement is a harsh punishment that should not exist in its current form. It discusses the various legal challenges that inmates have attempted, though with marginal success at best. This note then examines the Constitutional status of solitary confinement, arguing that the bar for successfully bringing Constitutional challenges is too high to allow any truly impactful changes to take place. It concludes that suits under the Americans with Disabilities Act would create meaningful change in prisons.
The modern practice of solitary confinement (1) has come under scrutiny in recent years, and for good reasons. As this note will show, the growing body of evidence that solitary confinement is both physically and mentally harmful to humans should alarm advocates of the rights of inmates, and particularly for mentally ill inmates. This note will first briefly explore the practice of solitary confinement in the United States, including specifically its impact on the mentally ill, who form a significant subset of the prison population in solitary confinement. (2) It will then assess the state of the law in this area by examining the Constitutional protections for inmates, including the Eighth and Fourteenth Amendments. Finally, this note will argue that the Americans with Disabilities Act (ADA) is a promising and perhaps more fruitful way to challenge the conditions in modern "supermaximum" (supermax) security prisons.
The American practice of solitary confinement began in the 1820s with two prisons, one in Pennsylvania and the other in New York. (3) Inspired by these model prisons, numerous other prisons experimented with solitary confinement in the mid-1800s. (4) Although the practice quickly spread and became widely used, both in the United States and in Europe, it also quickly fell out of fashion. (5) Even in these early days, solitary confinement was considered cruel by many. (6) In fact, most American prisons began to move away from the practice of totally isolating prisoners within just a few years of implementation, because of the psychological and even physical pain it inflicted. (7) By the 1860s, the practice was in sharp decline and would ultimately vanish in the United States and Europe. (8) The newest face of solitary confinement emerged somewhat recently in the 1980s, and the practice has gained popularity since then. (9) Today there are approximately sixty supermax prisons in about two-thirds of states, holding more than 20,000 prisoners. (10) Unfortunately for prisoners, the practice has become only scarcely more humane, as modern technological advances have all but eliminated the need for human interaction of any kind. (11)
Enter the modern American supermax prison. Prisoners are commonly subjected to 23-hour lockdown, during which they are totally alone in their intentionally bleak cells. (12) Inmates very often do not see the sun for years at a time. (13) Communication between inmates in solitary confinement is forbidden. (14) Prisoners get little stimulation: there are limited educational opportunities, no work opportunities, very limited entertainment, and only a few hours of exercise per week in another cell slightly larger than the ones they call home. (15) What little physical contact with other human beings they experience can only be described as rough handling by the guards. (16) The average length of stay in a modern supermax prison depends upon the system in which the prisoner is confined, but a two- or three-year stretch is not uncommon. (17) Given the symptoms associated with solitary confinement, the word "torture" may not be an inappropriate description of the conditions imposed. (18)
EFFECTS ON INMATES AND THE MENTALLY ILL
There is generally a dearth of scientific data on the effects of the American brand of solitary confinement, although it is being studied more. …