Pelican Bay Prisoners’ Class Certification Offers Hope on Solitary Confinement
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Goldberg-Robb Attorney
Is holding a prisoner in solitary confinement for more than a decade cruel and unusual punishment? That’s the question that a federal judge in Ashker v. Brown is set to decide. Recently, the judge said that hundreds of prisoners at California’s Pelican Bay State Prison who have been in solitary confinement for more than a decade could challenge their confinement as a class action. By certifying the case as a class action, the court has signaled that it’s willing to grapple with prolonged solitary confinement—an issue that has been a gaining public and policymakers’ attention across the nation.
The crippling effects of solitary confinement are well documented. An amicus brief filed this month by the ACLU’s National Prisoner Project and the ACLU of Virginia in a different case succinctly describes these effects:
Prisoners’ physiological and psychological reactions to solitary confinement include negative affect, insomnia, anxiety, panic, withdrawal, hypersensitivity to stimuli, ruminations, cognitive dysfunction, hallucinations, loss of control, aggression, rage, paranoia, hopelessness, lethargy, depression, self-mutilation, and suicidal ideation and behavior.
If that isn’t bad enough, it turns out that solitary confinement continues to impair the brain even after the prisoner has been released:
In a 1992 study of prisoners of war released from detention camps in the former Yugoslavia, scientists found that the two factors that had the most significant effect on brain activity were solitary confinement and physical trauma to the head resulting in loss of consciousness. Less significant factors included electric-shock torture and extreme cold.
Even with mounting evidence that solitary confinement can cause significant, irreparable health effects, no federal court to date has ever found that a specific period of time in solitary by itself violates the constitution.
In cases where prisoners challenge their conditions of confinement, federal courts consider the “totality of circumstances,” looking at factors such as the prisoners’ length of time in solitary, his access to recreation, natural light, and visits from his family, and the general conditions within his cell, among others. But the Ashker plaintiffs may be poised to argue that the length of time alone violated the Eighth Amendment.
There is good reason for the court to find that more than 10 years in isolation violates the Eighth Amendment. For one, many psychological experts have reported that even 15 days in solitary can cause the kind of severe pain and suffering that leads to irreparable psychological harm. That’s why the UN’s Special Rapporteur on Torture, Juan Mendez, in a 2011 report that I’ve quoted before on this blog has found that holding a prisoner in solitary for longer than this period of time can constitute torture or other cruel, inhuman, and degrading treatment.
Prolonged solitary confinement can’t possibly serve a legitimate penological purpose. As Mr. Mendez explains, “[l]ong periods of isolation do not aid the rehabilitation or re-socialization of detainees.” His point was tragically illustrated last year when the former head of the Colorado Department of Corrections was gunned downed at his home by a man who had been released from prison directly from solitary confinement. In fact, one study shows that prisoners who have been released directly from supermax prisoners into the community are more likely to commit new crimes sooner than those who have been transferred into the general prison population for a few months before their release from prison.
But the solution isn’t to allow prisoners to sit in the general prison population for a few months before releasing them from prisoner. Society still bears the cost of solitary confinement in other ways, such as by expending scarce resources on step-down programs aimed at helping prisoners integrate themselves back into the general prison population after spending months and even years in isolation, and resources on medical costs to treat inmates who have developed mental health problems or whose mental health problems have deteriorated while in solitary.
Moreover, solitary confinement makes correction officers’ jobs more difficult. As the ACLU recently explained in its brief in the Virginia case, from 1985 to 1999, the Texas Department of Criminal Justice classified up to a third of its death-row prisoners as “death-row work-capable” following a consent decree. This means that although two thirds of Texas death row inmates were held in solitary, a third of them lived in a less restrictive regime, living in two-man cells, eating in common areas, holding jobs, and receiving greater access to recreation, programming, and out-of cell privileges. Since the program’s termination, the state’s largest correctional officers’ union has called for reforms in the system and says that automatic solitary confinement is unnecessary and actually creates safety problems and hinders their work.
If Ashker is decided in the plaintiffs’ favor, it may form the basis for future challenges to prolonged isolation. Future litigators and advocates will therefore have the task of keeping pressure on departments of corrections to ensure that solitary confinement is implemented more humanely.
