Why isn’t there more constitutional litigation over the “hellhole” that is extended solitary confinement?
Most hostages survived their ordeal [involving solitary confinement] although relationships, marriages, and careers were often lost. Some found, as John McCain did, that the experience even strengthened them. Yet none saw solitary confinement as anything less than torture. This presents us with an awkward question: If prolonged isolation is — as research and experience have confirmed for decades — so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?…
Prison violence, it turns out, is not simply an issue of a few belligerents. In the past thirty years, the United States has quadrupled its incarceration rate but not its prison space. Work and education programs have been cancelled, out of a belief that the pursuit of rehabilitation is pointless. The result has been unprecedented overcrowding, along with unprecedented idleness — a nice formula for violence. Remove a few prisoners to solitary confinement, and the violence doesn’t change. So you remove some more, and still nothing happens. Before long, you find yourself in the position we are in today. The United States now has five per cent of the world’s population, twenty-five per cent of its prisoners, and probably the vast majority of prisoners who are in long-term solitary confinement.
It wasn’t always like this. The wide-scale use of isolation is, almost exclusively, a phenomenon of the past twenty years. In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional. Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed “serious objections” to solitary confinement…
Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax — our first institution specifically designed for mass solitary confinement — was not established until 1983, in Marion, Illinois. In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.” But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness. The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.” In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood. By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country. And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.
The number of prisoners in these facilities has since risen to extraordinary levels. America now holds at least twenty-five thousand inmates in isolation in supermax prisons. An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures. By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well. Mississippi alone held eighteen hundred prisoners in supermax — twelve per cent of its prisoners over all….
This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide. The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it. This is the dark side of American exceptionalism. With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago…. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement — on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.
The article’s efforts to draw parallels in this last paragraph to segregation and GTMO help spotlight my own belief that constitutional lawyers and policy policy groups have been complicit, at least indirectly, in the growth of solitary confinement in prison nation. A generation ago, many civil rights lawyers and policy policy groups attacked segregation through constitutional court battles. And, in modern times, many lawyers and public policy groups have be actively attacking GTMO, as well as just about every aspect of the death penalty. But, while a few hundred accused terrorists and murderers have lots and lots of constitutional lawyers and activists running to court on their behalf, many thousands of lesser criminals confined to the hellhole of supermax prisons languish with very few persons even thinking about their plight, let alone fighting in court on their behalf.
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UPDATE: NPR’s program “All Things Considered” had this segment on the article and the topic of solitary confinement. Here is the set up:
Humans are social animals; deprived of regular contact, we lose our minds. And that’s just what’s happening in solitary confinement cells across the country — that according to surgeon and author Atul Gawande, whose article in the current issue of New Yorker magazine looks at the effects of extended solitary confinement. Gawande talks to host Jacki Lyden about the personal toll of solitary confinement.