Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Constitution of United States of America 1789 (rev. 1992)
Imagine living in a room roughly the size of a parking space. A fully-grown man can reach out his arms and touch both walls at the same time. There is a sink that doubles as a toilet, and a bed with a concrete or metal base topped with a thin mattress. Your only access to the outside world is through a small slot in your door through which few people talk to you except to be abusive, you receive your limited and barely edible food, you are handcuffed before being let out of the room, and, sometimes, you are pepper sprayed to stop unwanted behaviors. Real conversations are few and far between and human contact is almost nonexistent. You cannot see or talk to your family. You are relegated to this cell for 22 to 23 hours every day. And you might live in these conditions for days, weeks, months, even decades.
This is not some tale from a barbaric past or warzone. This is the very real life of people in solitary confinement, people whom the the justice system has failed; a failure that needs to be rectified through public outcry and a refusal to sit idly by while folks die or go crazy in these cells. But first we must understand the issue at hand.
The eighth amendment protects against "cruel and unusual punishment," yet there are 80,000 to 100,000 people currently held in the torturous conditions of solitary confinement in the US. It is important to understand the history of solitary confinement, especially as it pertains to the language of the eighth amendment, if we are to work to eliminate the usage of solitary in our prison system. Additionally, I will examine the current state of affairs and the stance of New York Governor Andrew Cuomo.
In the U.S., the first solitary confinement block was was created in 1790 in Philadelphia. This was replaced by the Western State Penitentiary in 1826 and Eastern State Penitentiary in 1829, a notoriously cruel prison that would later house gangsters like Al Capone. The latter prison, nicknamed Cherry Hill, "implemented the first strictly solitary confinement system. Prisoners were not allowed to speak and were kept isolated in their cells". The practice can be attributed to the Quakers, who believed that seclusion alone would cause the sinner to repent and rehabilitate himself. A man isolated in a cell with only a Bible for company would, they believed, eventually become a reformed citizen.
Charles Dickens visited Cherry Hill in 1842 and determined the practice of solitary confinement to be "cruel and wrong", going on to say, "I hold this slow and daily tampering with the mysteries of the mind, to be immeasurably worse than any torture of the body". Indeed, numerous studies have concluded that solitary confinement has extremely deleterious effects on mind and body.
Modern studies reveal that prisoners placed in solitary experience "insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, aggression, rage, paranoia, hopelessness, lethargy, depression, emotional breakdowns, self-mutilation, and suicidal impulses". Moreover, "after just a few days spent in solitary confinement, a prisoner's electroencephalogram ('EEG') test results can indicate a shift toward an abnormal pattern that is indicative of stupor and delirium".
Though the science was not known at the time, the effects on inmates were clear. In 1890, Supreme Court Justice Samuel Freeman Miller stated that the conditions of solitary confinement were deplorable. He wrote, "A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood 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" (NPR Timeline). Around this time the practice fell out of usage until it was put to use again in the early 20th century.
Alcatraz Island penitentiary in San Francisco Bay opened in 1934, converted from a military hold to a prison intended to house America's most violent criminals, the "desperate and irredeemable types". D-Block, the "Treatment Block", was reserved for the most dangerous inmates. There, prisoners could expect to live in isolation, solitary or even stripped. Cells 9-14 were known as "The Hole", concrete cells, with just a hole in the floor, in which inmates would be locked, naked, and given bread and water through a small hole in the door, sometimes getting full meals only once a week. Typically inmates only spent a number of days in The Hole, and anywhere from 3-19 days in solitary. The exception is Robert Stroud, "The Birdman of Alcatraz," who spent 6 years in solitary in D-Block cell 42. Today, some inmates have spent decades in solitary.
Solitary confinement fell out of usage for a number of years and only resurfaced in 1983, following the murder of two prison guards at a penitentiary in Marion, Illinois, causing the unit to be transformed into the first "supermax" prison in the U.S.. The warden placed the prison on "permanent lockdown", confining inmates in their cells for 23 hours a day, cutting education and work programs. Numerous other prisons soon followed suit, though there were no other incidents regarding prison workers. In 1989 a new supermax opened in Pelican Bay, California. This prison was designed with the sole purpose of holding prisoners in solitary, letting them out only for 1 1/2 hours a day into small concrete holding areas.
The 1990s witnessed a boom in supermax prisons, but no improvements are made to inmate comfort. In 1994 the federal government built its first supermax prison in Florence, Colorado. Just one year later in 1995, "A federal judge finds conditions at Pelican Bay in California 'may well hover on the edge of what is humanly tolerable' (Madrid v. Gomez)". The judge also found that the conditions did not violate the constitution or any amendment thereof, and thus there was no reason to amend the practice or improve the conditions. An assessment done in 2005 found that 40 states operated supermax prisons.
In the last several years, many academic voices have come forward to speak about the ills of solitary confinement, a relic of our barbaric past brought violently into our present.
Merin Cherian, J.D. at Georgetown University Law Center, examines the history of solitary confinement and its related arguments in "Note: Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement" (Fall, 2019). Cherian begins by talking about Kalief Browder, a young man who spent two years in solitary on Rikers Island in NYC while he was awaiting trial and subsequently committed suicide after his release. This is a familiar story and now a famous one because of "TIME: The Kalief Browder Story", available on Netflix. Browder's story is unfortunately not unique or even rare.
Cherian argues that a closer examination of the phrase "cruel and unusual punishment" in the 8th amendment is essential if we are to overturn the use of solitary confinement. In 1878 the Supreme Court determined that "[p]unishments are cruel when they involve torture or a lingering death". Thus by extension cruel meant "inhuman and barbarous, something more than the mere extinguishing of life". The term cruel is better defined than its counterpart unusual, which remains a point of contention, indeed the very center of the ambiguous legality of solitary confinement. What really constitutes cruel and unusual?
The evolving standards model, which the Supreme Court often employs today, states that standards should change with public opinion; that is, the Court draws upon modern sensibilities to determine whether a punishment is "cruel and unusual".
The originalist stance argues for the original meaning of "unusual". Cherian explains that the original legal 18th century use of "unusual" was to indicate a practice that was "contrary to long usage", not "something different from that which is generally done". This rests upon the idea is that if a practice wasn't good, it would fall out of use. This was based in large part on British Common Law practices, in which a practice that falls out of use likewise falls out of common law. Long usage is typically 100 years or more of continuous practice.
Since solitary has only been in practice continuously since 1983, a period of only 36 years, this does not constitute "long usage", and thus can be considered "unusual" by the originalist meaning of the term. Viewed in this light, solitary confinement violates the eighth amendment.
Perhaps the biggest problem that activists face is that there is no "federal precedent that long-term solitary confinement per se violates the Eighth Amendment", in part because this language has been interpreted in different ways by different Supreme Courts and justices. Therein lies the dilemma. Does unusual mean "something different" or does it mean "contrary to long usage"? The question is do we interpret the constitution as it was written or as we choose to understand it? In a country drowning in justice-involved individuals, we must reconsider how we interpret the 8th amendment.
Retired Justice Anthony Kennedy argued for the abolishment of solitary confinement, citing potential constitutional violations at a talk at Harvard Law School is 2015. He urged people to send in appeals to the Supreme Court, which arrived in abundance, but were not enough to urge the Court to openly consider the issue.
Despite seeming indifference from the Supreme Court, the case to end the practice of solitary confinement is gaining traction every day. Post-incarcerated individuals are speaking out, writing their stories, and activists are listening.
One such individual is Albert Woodfox, one of The Angola Three, who spent four decades in solitary. His new book "Solitary" is available on Amazon. In an article for The Guardian, he outlines the treatment that he received during his time in CCR, that is, "closed cell restriction", a sneaky way of describing solitary.
His story is horrifying and not for the faint of heart. Woodfox endured brutality, isolation, and humiliation. Throughout, he endured by embodying the term defiance. He says that he and his fellow prisoners would give as good as they got when they objected to the unfair treatment of a fellow inmate. "It’s a hell of a feeling to stand when you know you’re going to be beaten; you know there will be pain but your moral principles won’t let you back down."
In New York State, new regulations have been proposed to limit the use of solitary confinement, but not to abolish it. Activist groups like the New York Campaign for Alternatives to Isolated Confinement or #HALTsolitary are far from satisfied with suggested reforms. The campaign had suggested the immediate implementation of a 15-day cap on solitary confinement, a time limit beyond which the United Nations has deemed torture. In August 2019, Governer Cuomo's office proposed limitations "on solitary confinement in state prisons [that] will bar that sanction for pregnant women and individuals with a disability, and phase in a 30-day cap on the practice over the next three years" (Proposal). In this case, disability includes mental illness.
"If promulgated, the rules would set stricter limits on who is eligible for solitary confinement, and under which conditions. They would also create additional types of units that can be used to isolate incarcerated individuals from the general population without sending them to solitary.
Pregnant women, or women within eight weeks of giving birth, would not be eligible for solitary confinement. Incarcerated individuals with a mental or physical disability, or a serious mental illness, would also be barred from the sanction, according to the proposed rule."
While this is definitely a start, it is far from a solution, and will take years to complete.
"A 30-day cap on the use of solitary confinement will take effect on Oct. 1, 2022. That will be phased in over the next three years, starting with a 90-day cap effective in October 2021. That will be reduced to a 60-day cap in April 2022 until the 30-day cap takes effect the following year, according to the rule".
NYCAIC is planning to hold an Advocacy Day on January 21 in Albany, New York. To sign up, visit their website. The group hopes to change the view of lawmakers in order to shorten the length of time in which these changes would be implemented, and to shorten the overall length of time one can spend in solitary confinement.
All of these proposals still do not come close to challenging the 8th amendment. Any time in solitary confinement is still cruel and unusual under originalist language, and the practice should be abolished.
How New Yorkers can help: Take Action
Cherian, Merin (Fall 2019). Note: Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement. 56 Am. Crim. L. Rev. 1759-1784.