Transcript: Testimony of ACLU’s Margaret Winter at the joint legislative hearing on solitary confinement in California – Oct. 9, 2013

Partial transcript of testimony of Margaret Winter, Associate Director of the National Prison Project for the American Civil Liberties Union, at the joint legislative hearing on “Segregation Policies in California Prisons: Current Conditions and Implications on Prison Management and Human Rights” on Oct. 9, 2013:

…In my work with the ACLU over the last 20 years, I have investigated, monitored, and brought class action litigation on conditions of confinement in prisons and jail systems around the country. And I have testified as an expert to the Prison Rape Elimination Commission, to the Committee on Safety and Abuse in America’s Prisons, to the Citizen’s Committee on Violence in the Los Angeles City Jails. And I was recently invited by the President of the American Correctional Association to speak at the ACA’s national conference on solitary confinement.

I’ve been asked by this committee to give an overview of solitary confinement nationally and recent developments with regards to what other jurisdictions are doing today to address the issue of solitary confinement.

It’s well-known that the U.S. has the largest incarcerated population in the world with more than 2.2 million behind bars on any given day and that we have the world’s highest per capita rate of incarceration too – a rate that’s 5 to 10 times higher than other western democracies like Canada, the U.K., Germany and France.

But what is less well-known is that the U.S. has more prisoners in solitary confinement than any other nation. It’s estimated that on any given day, there are 80,000 prisoners in the U.S. held in solitary confinement.

Human beings are social animals. Being subjected to prolonged social isolation causes extreme psychic punishment and pain and especially when that isolation is combined with enforced idleness and sensory deprivation. It causes agonizing psychic pain.

And over time in solitary confinement, those who start out sane often develop mental illness. Those who start out mentally ill are likely to become more seriously ill and it’s well known that a very, very big and significant portion of the prison population in California and nationwide is mentally ill to begin with.

Some never recover from the effects of solitary confinement. They go around the bend, so-to-speak, and irretrievably so they don’t come back.

All of this has been known for a very long time.

In the 1890, the U.S. Supreme Court described the observed effects of solitary confinement like this: “A considerable number of the prisoners in solitary fell, even after a short confinement, in semi-fatuous condition from which it was next to impossible to arouse them. Others became violently insane. Others still committed suicide. While those who withstood the ordeal better were not generally reformed and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

Virtually every reputable study of the effects of solitary confinement lasting more than 60 days has found evidence of its negative psychological effects.

Prisoners with serious mental illness are particularly at risk, and almost every federal court to consider the issue has ruled that subjecting prisoners with serious mental illness or developmental disabilities to isolation violates the Eighth Amendment.

Teenagers, young people are also at greatly heightened risk. Most suicides in juvenile corrections facilities occur in solitary confinement.

And in fact, there is adequate evidence to say that solitary confinement causes suicide.

In the California system, the evidence says that 60% to 70% of successful suicides in prison occur in solitary confinement.

So with all of this accumulated knowledge, why do we have 80,000 people in the United States everyday in solitary confinement? What happened since 1890? Or since the mid-19th century when all this became well-known?

What happened was in the mid-to-late 1990s there was a mania for so-called super max prisons – that is prisons entirely dedicated to long-term solitary confinement. This mania swept the country, and this was at a time of acute public anxiety about crime.

Super max prisons, like draconian sentences and three-strike laws, came into political fashion. It was like a statement that a state was tough on crime.

There was a super max building boom, and by 2006, more than 40 states as well as the federal government have at least one super max prison.

In the last few years, though, a national dialogue has opened up strongly questioning the utility and justifications for solitary confinement.

Everyone agrees that some prisoners may need to be physically separated for some period of time to prevent them from hurting others.

But even when there is a demonstrable, compelling need – a security need for physical separation – the issue is whether is ever, ever justification for prolonged and extreme social isolation, sensory deprivation, and enforced idleness.

There’s a growing body of evidence that solitary confinement does little or nothing to promote public safety or prison safety and that it is so harsh and so likely to damage people that it should be used as sparingly as possible – only, only for prisoners who pose a current, active, ongoing serious threat to the safety of prison staff and other prisoners. It should be used only as a last resort and for as short of time as possible.

The evidence that solitary confinement is not only harmful but unnecessary and incredibly costly has given rise to an rapidly expanding nationwide reform movement.

The reform movement has been fueled in part by the financial crisis. The states are facing crushing budget deficits, and spending for education, public health care, and other basic social services is being slashed to the bone.

A serious national debate has already opened up as to whether the staggeringly high cost of solitary confinement is justifiable. Incarceration is expensive; solitary confinement by far the most expensive form of incarceration.

The per prisoner cost at the Federal Bureau of Prison’s highest security super max is $80,000 a year, triple the cost in a non-super max high security facility.

The per prisoner cost in the Illinois recently closed Tamms super max was more than $60,000 per year, triple the state’s average per prisoner cost.

Furthermore, there’s little or no evidence that solitary actually promotes either public safety or prison safety.

A 2006 study on the effect of opening super max prisons in Arizona, Illinois and Minnesota, found that the super max either had little or no effect on reducing violence or it was actually associated with increased violence.

A 2007 study by the Mississippi Department of Corrections showed that violence levels plummeted by 70% – by 70% – of previous levels when the Commissioner of the Mississippi Department of Corrections reduced the number of prisoners held in solitary by 85%. That is the level of violence declined in almost direct proportion to the radical reduction of the solitary.

A reduction in the number of prisoners in segregation in Michigan also has resulted in a decline in violence and other misconduct.

And furthermore, we cannot forget that prisoners who’ve been held in solitary confinement have higher recidivism rates than comparable prisoners who were not held in solitary.

I want to talk to you about Mississippi. It’s the reddest of the red states. And Mississippi was the unlikely trail blazer in radically reducing the use of solitary confinement.

In 2004, the ACLU won a lawsuit challenging the horrific conditions on Mississippi’s death row, which was situated in a corner of Mississippi’s super max unit – 1,000 bed facility known as Unit 32.

Mississippi has a prison population of about 20,000; 1,000 of that was in super max.

Mississippi’s Commissioner had long insisted that solitary confinement was necessary for these 1,000 because they were the worst of the worst, violent gang members, and there was no other way to keep the prison and the public safe.

But in 2007, after further litigation, something quite remarkable happened. Mississippi’s Commissioner agreed with a national classification expert from the NIC – an arm of the Department of Justice that offers technical support to state prison systems – and together with the ACLU’s mental health expert and with this national classification expert, the prison officials sat down with the Deputy Commissioner…they sat down and over the course of a few weeks, they individually considered every single one of those 1,000 cases. They applied evidence-based risk assessment tools, which the NIC has developed and which have been tested many times. Applying these evidence-based risk assessment tools and factors, they decided after careful review – the Mississippi officials – that at least 85% of these 1,000 men in the super max did not need to be isolated; they should not be isolated.

Hundreds of them had serious mental health problems and needed to be diverted to a facility where they could get intensive mental health treatment.

Hundreds more were in solitary merely because they were members of gangs or simply because they had violated many rules. They had history of many, many rules infractions – many of these in reaction to intolerably harsh conditions. Some of them acting out because they had behavioral problems. But in any event, these men were not actually so dangerous to as to need to be kept in solitary confinement.

Within a matter of months, the department had actually reduced its super max population by 85%, from 1,000 men to 150. And the result of this reduction was equally dramatic. The level of violence in the prison plummeted to a fraction – a small fraction of its former level.

And these figures were later documented in a study that was done by the Deputy Commissioner of Corrections and the NIC and the other people involved in this experiment.

I will never forget visiting Unit 32 in November 2007 and witnessing the transformation of a prison. I could hardly believe my eyes. This vast prison yard that had alway been so silent and empty was now filled with hundreds of men peacefully playing basketball together in a newly created basketball courts, walking together to classes in a class room that had never existed before, and going to chow hall in a chow hall that had never existed before because they had never left their cells.

This was a successful experiment.

Three years later, in 2010, the Mississippi Department of Corrections permanently shuttered Unit 32 and reduced the number of prisoners in solitary confinement throughout the state to a small fraction of what it had been.

The state, in the process, saved millions in operating costs, and that’s a big deal in Mississippi, which is one of the very poorest states.

Mississippi’s corrections Commissioner Christopher Epps has used that experience to become a national spokesperson against the overuse of solitary confinement. And as the current President of the American Corrections Association, Commissioner Epps has encouraged corrections officials nationwide to embrace reform.

Other states have followed in Mississippi’s path, including states with some of the largest prison populations in the nation.

In 2008, New York passed the SHU Exclusion Act – a law that diverts prisoners with serious mental illness away from isolation and into mental health treatment units.

In 2010, the Maine Department of Corrections – Maine had exceedingly harsh isolation practices – Maine reversed course voluntarily and made isolation a last resort rather than a default practice.

And over the course of 18 months, the state reduced its solitary confinement population by 50%.

At the end of 2012, the trend continued.

Illinois permanently closed Tamms Correctional Center – the state’s only super max prison. In 2013, Colorado closed a 316 bed super max unit after cutting its solitary population by one-third.

In the last few years, there has been a surge in state legislative activity to limit the use of solitary confinement. In 2013, bills were proposed to limit or ban the use of solitary confinement of juveniles in California, Florida, Montana, Nevada and Texas.

Nevada actually enacted a bill that places restrictions on the isolation of youths in juvenile facilities.

A similar bill on juvenile solitary confinement practices was introduced in Texas and Texas passed a law requiring correctional facilities to review and report on their use of isolation.

Maine, Colorado, and New Mexico have each passed bills mandating studies on the use, impact, and effectiveness on solitary confinement.

And this is an incredibly powerful and important component of addressing the problem, of actually getting the data because most states simply don’t have it yet.

A Massachusetts would require a hearing within 15 days of placement in segregation, limit segregation to no longer than 6 months, except for exceptional circumstances and provide for access to programming to prisoners in segregation.

The federal government has also recently become involved in the movement to limit solitary confinement.

In June 2012, the first ever Congressional hearing on solitary confinement was held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights.

In 2013, the U.S. Senate passed the Border Security Economic Opportunity and Immigration Modernization Act which limits the length of solitary confinement to 14 consecutive days – 14 – unless the Department of Homeland Security determines that continued placement is justified by extreme disciplinary infraction or is the least restrict mean of protecting the other detainees.

The bill also bans the use of solitary for juveniles under 18, severely restricts the use of solitary for those with serious mental illness and for involuntary protective custody.

Also in 2013 something very important happened when the Government Accountability Office – an independent investigative agency of the U.S. Congress – undertook a comprehensive review of the use of solitary confinement by the Federal Bureau of Prisons. The bureau is the nation’s largest prison system, holding about 15,000 people in solitary confinement. In May 2013, the General Accountability Office issued a report finding that the bureau had never assessed whether solitary confinement has any effect on prison safety, that the bureau had never assessed the effects of long-term segregation on prisoners, that the bureau did not adequately monitor segregated housing to ensure that prisoners receive food, out-of-cell exercise, and other necessities. And the BOP agreed to adopt the GAO’s recommendations to gather data to assess the impacts of long-term segregation on prisoners and to assess the extent to which segregation actually serves the purpose of making prison staff, inmates, and the public safe.

Another sign of the times that we are on a wave of reform is that in May 2013, the Department of Justice completed an investigation of solitary confinement in a medium security prison in Pennsylvania and found that Pennsylvania was housing prisoners with serious mental illness and developmental disabilities in solitary confinement and that this practice violated the inmates’ rights not only under the Eighth Amendment but also under the Americans with Disabilities Act.

The Justice Department notified the Governor of Pennsylvania that the DOC was going to expand its investigation into the use of isolation on prisoners with serious mental illness and intellectual disabilities into other Pennsylvania prisons.

Many major national non-governmental organization are now involved in the challenge to solitary confinement.

The National Religious Campaign Against Torture has made solitary reform a priority.

In 2010, the American Bar Association revised its standards on treatment of prisoners to recommend strict limits on the use of solitary.

In 2012, the American Academy of Child and Adolescent Psychiatry enacted policy opposing solitary confinement of juveniles.

And also in 2012, the American Psychiatric Association approved policy opposing the prolonged segregation of people with serious mental illness.

And now, an effort is underway to amend the American Institute of Architects’ code of ethics to prohibit the design of facilities intended for prolonged solitary confinement.

There’s been a new focus internationally against solitary. In 2011, the U.N. Special Rapporteur on Terror called for a ban on solitary confinement lasting longer than 15 days and an absolute ban on solitary confinement for youth and the mentally ill.

There were similar recommendations by the Council of Europe’s Committee for the Prevention of Torture. Similar in 2013 from the Inter-America Commission on Human Rights, and that commission concluded that countries should adopt strong concrete measures to eliminate the use of prolonged or indefinite isolation under all circumstances, stressing that prolonged or indefinite solitary confinement may never constitute a legitimate instrument in the hands of the state.

There is now massive evidence to support the following 6 basic conclusions regarding solitary confinement.

First, solitary confinement is so harsh and damaging that it should be used as sparingly as possible. It shouldn’t be the default. It should only be for prisoners who pose a current, serious threat to the safety of others, only as a last resort, and for as short a time as possible.

Second, even when there is a compelling security need for physical separation, that’s no justification for extreme social isolation, sensory deprivation, and enforced idleness. Prisoners requiring long-term physical separation from others should have meaningful access to telephone calls, letters, reading materials, TV, radio and in-cell programming. And they should have access to confidential counseling with mental health clinicians – not cell-front but confidential. They should recreate alongside other prisoners even if they have to be confined to separate adjacent exercise yards.

Third, a prisoner shouldn’t be placed or kept in segregation without an individualized determination that physical separation is actually currently necessary for the safety of others, and that means real meaningful due process and a real meaningful review by classification team, mental health people working together to do regular periodic reviews.

Prisoners shouldn’t be subjected to segregation merely because they are on death row or merely because they have a life sentence or just because they are gang members. It is a question of whether their conduct – their actual conduct in prison – creates an ongoing serious threat to safety.

Fourth, juveniles should never be kept in solitary confinement. Solitary is damaging and dangerous for juveniles.

Fifth, prisoners with serious mental illness or developmental disability should never be housed in solitary. They need to be in a therapeutic environment where they can get treatment. Mental health housing can be secure without socially isolating people with mental illness.

Sixth – and in some ways, most important – prisoners have to be given the opportunity to earn their way out of solitary confinement through behavior. Above the gate to Hell in Dante’s Inferno was written “Abandon all hope ye who enter here” and that should not be the mantra of state prisons.

These recommendations aren’t far out. They’re not fringe. This is now the new – you’re going to be seeing that this is the new mainstream. And California, we hope, will not be bringing up the rear but will take its place in the vanguard of adopting these recommendations and finding a roadmap toward the goal of limiting the cruel practice of solitary confinement to the least possible use.

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One Comment on “Transcript: Testimony of ACLU’s Margaret Winter at the joint legislative hearing on solitary confinement in California – Oct. 9, 2013

  1. Pingback: Alternatives to long-term solitary confinement in California | What The Folly?!

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