Measure to Limit Solitary Confinement Advances in Senate Immigration Bill

Originally published in Solitary Watch on May 29, 2013.

The immigration reform bill approved by the Senate Judiciary Committee last week includes an amendment that would curtail the use of solitary confinement on immigrant detainees. While the measure’s reach is limited, its passage by the Committee nonetheless represents a significant step for human rights activists working to help shape the Border Security, Economic Opportunity and Immigration Modernization Act, which will be debated by the full Senate in June.

The amendment, Blumenthal 2, was drafted by Senator Richard Blumenthal (D-CT). It sets limits on the use of solitary confinement for adults–in most cases, 15 days–and bans it for all children under 18 years old. The measure also explicitly prohibits the use of solitary confinement to “protect” detainees based on their sexual orientation or gender identity.

While the amendment does make it more difficult, it falls short of banning solitary confinement for detainees with mental illness. Detention centers that opt to isolate mentally ill individuals are required to have a medical professional visit with the immigrant at least three times each week as well as weekly visits by a mental health clinician for regular evaluations.

Lastly, the amendment has an oversight component so that detention facilities must submit both the reason for and the duration of all solitary confinement sentences to Congress annually for review.

The Senate’s attention to solitary confinement is relatively historic. Last June the first-ever congressional hearing, led by Richard Durbin (D-IL) was held to discuss the legal, economic and psychological costs of solitary confinement. While a host of local groups have cropped up to fight solitary confinement on the state level, Congress has largely avoided the issue.

The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, sent a letter in support of Blumenthal 2 to Senator Patrick Leahy and Senator Charles Grassley, Chairman and Ranking Member of the Senate Judiciary Committee, respectively. The letter said, “The amendment balances the operational needs of facilities that hold immigration detainees with basic respect for the health and human rights of detainees subject to solitary confinement.”

The American Civil Liberties Union also gave vocal support to the passage of the amendment and said, “The adoption of the amendment takes positive steps forward in fixing a serious injustice the extent of which has only recently come to light.”

Due to increased enforcement measures put in place by the Obama administration, the immigration detention population has dramatically increased. There are 85 percent more immigrants detained today than there were in 2005, and these detentions are usually indefinite sentences. Individuals are held, often for months at a time, until either they voluntarily sign deportation documents or until immigration authorities decide whether to deport the immigrants or let them stay.

Observers argue that while placing U.S. prisoners in solitary confinement is problematic, placing alledgedly undocumented immigrants in solitary confinement is even worse because these individuals are not even serving criminal sentences, but are simply waiting for civil deportation hearings. Beyond that, critics argue that solitary confinement hurts detainees’ ability to fight their cases due to highly restricted access to telephones and other means of communication.

In March, Homeland Security Secretary, Janet Napolitano said that she believes “solitary confinement should be the exception, not the rule.” She asked federal immigration officials to report back with greater detail about the usage and implementation of solitary confinement in federal facilities.

March 2013 article by the New York Times and The Investigative Reporting Workshop found that on any given day, U.S. Immigration and Custom Enforcement (ICE) officials hold approximately 300 immigrants in solitary confinement at the 50 largest detention facilities across the country. Their research showed that nearly 50 percent of these individuals are kept in solitary confinement for 15 days or more–a point that psychiatric experts say detainees are at risk for severe mental harm. The study found that about 35 detainees are kept for more than 75 days.

Senator Charles E. Schumer, Chairman of the Senate Judiciary’s subcommittee on immigration, responded to the report by sending a letter to John Morton, director of ICE urging him to change their use of solitary confinement. “This report suggests an overreliance by the ICE on the harshest forms of incarceration,” Schumer wrote.

In 2012, the Heartland Alliance’s National Immigrant Justice Center and Physicians for Human Rights, surveyed conditions in many detention centers and county jails that work in conjunction with the ICE. This was the first comprehensive study on the effects of solitary confinement on immigration detainees. The research showed that solitary confinement is often arbitrarily and punitively applied, inadequately monitored and damaging to detainees’ health; investigators also found that most immigrants are denied any meaningful avenues of appeal. Additionally, they found that ICE failed to hold detention centers and jails accountable for their use and abuse of solitary confinement.

Blumenthal 2 would be first federal legislation to place limitations on the duration and circumstances under which detained immigrants can be placed in solitary confinement.  It is unclear at this point whether the amendment will pass the full Senate or the House.

The measure would apply only to those held in immigrant detention, and not to all federal prisoners. The U.S. Bureau of Prisons is estimated to hold at least 10,000 individuals in isolation in prisons across the country, and is not subject to any laws that that regulate, monitor, and restrict the use and abuse of solitary confinement in federal prisons.

An Examination of Press Access Policies for Solitary Confinement

Originally published in Solitary Watch on March 5, 2013

Journalists face serious obstacles to reporting on prisons–and even more to uncovering the truth about solitary confinement. (See James Ridgeway’s essay “Fortresses of Solitude.”)

Public oversight of governmental institutions, which can help to prevent corruption and abuse by those in power, is seen as a hallmark of an engaged, democratic citizenry. However, when it comes to obtaining information about individuals kept in solitary confinement, the press, and by extension the public, are often kept in the dark.

The Supreme Court ruled, in Pell v. Procunier, that the First Amendment does not guarantee the press special access to prisons beyond what is generally afforded the public. The Court reasoned that since other methods of communication feasibly exist, like letter writing, freedom of the press is not compromised by even severe limitations on access to prisons and prisoners. Suffice to say, these barriers to entry and examination, involving layers of bureaucracy as well as outright bans, help to minimize investigative inquiry and avoid close scrutiny of prison practices.

The Society for Professional Journalists recently published a study by Jessica Pupovac of press access policies to prisons in general, which vary greatly from state to state. Policies related to solitary confinement tend to be even more restrictive, and even more variable.

In an investigation of the prison systems with the largest numbers of prisoners in solitary confinement, Solitary Watch has compiled a brief summary of some notable differences and takeaways between the states’ policies.  We examined the Federal Bureau of Prisons, California, Florida, Illinois, Louisiana, New York, Ohio, Pennsylvania and Texas.

Differences in policy are evidenced by–among other things–supervision of interviews, access to certain types of prisoners, access to certain areas of prisons, and the ability to use recording devices. Many states leave themselves the right to deny interviews if they feel it will cause “a disturbance” but none of the policies state what that would qualify or how that would be measured, and thus the bottom line is that in most cases, prison officials usually have considerable latitude in deciding whether a reporter may interview a particular prisoner.

Our hope is that this initial look will spark a wider conversation about public awareness with regards to U.S. citizens who are locked away for weeks, months, or years in solitary confinement.  While there are alternative means for obtaining information, these are often insufficient in eliciting the types of things that can be learned through a journalist’s first-hand observations, and through face-to-face conversation.

To be sure, what is written in the policy does not necessarily correlate to actions in reality, but it is a crucial first step in bringing prison conduct to light.

FEDERAL BUREAU OF PRISONS

Prisoners in “segregation, restricted, holdover, control unit, or hospital status” are limited to one one-hour interview per month. They have the right not to be photographed or have their voice recorded by the media, however if the press representative obtains written permission they may.

Although interviews are not subject to auditory supervision, there are two conditions for both the press and prisoners regarding interviews. For the press, “A representative of the news media is requested to provide the Bureau of Prisons an opportunity to respond to any allegation, which might be published or broadcast prior to distribution.” And for the prisoners, “As a prerequisite to granting the interview, an inmate must authorize the institutional staff to respond to comments made in the interview and to release information to the news media relative to the inmate’s comments.”

Lastly, the Federal Bureau of Prisons has the right to deny interviews if they feel it “would probably cause serious unrest or disturb the good order of the institution.”

In reality, no reporter has been granted access to the U.S. Penitentiary Administrative Maximum (ADX), the most secure federal supermax, since September 11, 2001.

(Full Press Policy here)

CALIFORNIA

Media representatives shall not enter security housing units, condemned units, (death row), the execution chamber, Administrative Segregation Units or any other area unless they obtain approval from a correctional official. Interviews with people in prison are at the discretion of the institution head, “including restricting the time, place and duration of interviews.” Phone calls are limited to fifteen minutes and may be recorded.

In reality, a few reporters have been allowed to tour Pelican Bay’s Security Housing Unit, but can only interview designated prisoners.

(Full Press Policy here)

FLORIDA

The state has strict press policies: Interviews are simply prohibited if the prisoner is “in disciplinary confinement, classified as close management, has serious psychological problems, is in a hospital or is an infirmary patient.” (It should be noted that according to the American Psychiatric Association, 20 percent of all people in prison are “seriously mentally ill.”) Prisoners may also be denied an interview, “If the warden or senior facility officer believes the interview will impair the security or normal operation of the facility.”

In Florida members of the press cannot enter security housing units, condemned units (death row), the execution chamber, Administrative Segregation or any area currently affected by an emergency without approval of the communications director or designee.  In lieu of these restrictions, Florida offers the option of “stock video footage” and still photographs of chamber, Death Row, Administrative Segregation and Security Housing Units available in the Public Affairs section of their prison website.

(Full Press Policy here)

ILLINOIS

Interviews with individuals in solitary confinement are not explicitly prohibited. The Director will determine whether an interview can be held based upon, “among other matters, the effect that an interview may have on the individual or other committed persons, and the effect upon safety, security, institutional order, or other penological concerns.”

In reality, journalists report that they were not permitted into Tamms supermax before its closure.

(Full Press Policy here)

LOUISIANA

The policy states, “All legitimate news media organizations shall be allowed reasonable access to the state’s correctional facilities unless security considerations dictate otherwise.” Another other notable condition is that offenders are not permitted to discuss the crimes they’ve been convicted of in interviews.

In reality, press access to Herman Wallace and Albert Woodfox, the two members of the Angola 3 who have been in solitary for more than 40 years, is severely restricted.

(Full Press Policy here)

NEW YORK

Individuals in solitary confinement are permitted one “non-legal” visit per week, and at the discretion of the Commissioner, they can substitute this for a media interview. However, prisoners in pre-hearing confinement status or serving a disciplinary confinement sanction, which includes Special Housing Units and Keeplock, are not permitted to have media interviews.

The interviews between news media and prisoners that are approved shall be supervised “by way of direct observation” by an assigned security employee. This is meant to maintain “appropriate security observance.” However the policy explicitly states that whoever is supervising cannot do so “in a manner that could reasonably be interpreted as having a chilling effect.”

Certain areas of the correctional facility will not be accessed during a press visit either for security reasons or for “the privacy of inmates.” They include but are not limited to disciplinary housing areas, arsenals, perimeter security systems, medical and mental health units, protective custody units plus any other areas deemed of a sensitive security nature by the superintendent and Public Information Officer.

In reality, since nearly all isolated prisons are ”in pre-hearing confinement status or serving a disciplinary confinement sanction,” they are off limits to the press, as are virtually all solitary confinement units.

(Full Press Policy here)

OHIO

In Ohio, the Managing Officer or his designee has full control over the number of reporters who may come into correctional institutions and the duration of their visits. They also may place “reasonable restrictions on the frequency, length, and starting time of personal interviews” as well as “visually monitor” them.  The Ohio policies state that the media must get permission for photographic, recording or broadcast equipment for interviews in advance, and must get secure clearance for pictures or recorded interviews. This is at least implies that the media can theoretically use those devices.

(Full Press Policy here)

PENNSYLVANIA

Pennsylvania’s press policy clearly states that under no circumstances may a prisoner’s face be photographed, videotaped, or filmed. In the case of audio recording, “the inmate shall only be referred to by his/her FIRST name.” Pennsylvania says they will select individuals for interviews based on several considerations including whether or not the prison feels confident or concerned about what the prisoner may say publicly, and whether there is a “level of notoriety attached to the inmate’s conviction or subsequent incarceration.” Their press document asks, “Will this inmate bring unwanted media attention to the Department? Does the inmate present a positive image of himself/herself, other inmates, and the Department at large?”

Pennsylvania’s policy was also the only one that threatened disciplinary action to prisoners based on receiving compensation for interviews.

(Full Press Policy here)

TEXAS 

It is made quite difficult to obtain interviews with individuals in Texas solitary confinement. According to their stated policy, “An interview may be prohibited when the offender is in Solitary Confinement or Administrative Segregation.” Additionally, a Warden may set limitations for media access to the unit when, in the Warden’s judgment, such media access “would disrupt the safety and security of the unit or cause serious operational problems.” On top of that, interviews with offenders who are diagnosed with psychiatric disorders are prohibited.

When it comes to photographs or videos of offenders, there must be written consent when the offender’s face can clearly be identified. It should be noted later how this contrasts with Pennsylvania’s policies which states under no circumstances may an offender’s face be identifiable.

(Full Press Policy here.)

Solitary Confinement and Jewish Organizations

Published originally in New Voices Magazine on January 24, 2012 and reprinted in Solitary Watch.

If community is a foundation of Jewish life, what does Judaism have to say about solitary confinement, the forcible separation of a person from the community? A few months ago I began an internship with Solitary Watch, an investigative news organization dedicated to reporting on solitary confinement. Once I got started, I became interested in learning more about the work the American Jewish community organizes around this issue.

It turns out there is a lot of work being done, though it started quite recently. Beginning in 2012,T’ruah: The Rabbinic Call for Human Rights (recently renamed from Rabbis for Human Rights-North America), a coalition of 1,800 rabbis, and Uri L’Tzedek, a prominent liberal Modern Orthodox social justice organization, have both made the issue of solitary confinement a prominent part of their advocacy efforts.

Solitary confinement is a form of imprisonment where individuals are subjected to approximately 22-24 hours per day of isolated lockdown in tiny cells. Many Americans mistakenly believe that solitary confinement is used sparingly, only for the most dangerous or threatening prisoners. However, according the American Civil Liberties Union, there are more than 80,000 men, women and children currently in some sort of solitary confinement in United States prisons. Many have a mental illness or cognitive disability, and the majority has been placed there for nonviolent violations of prison rules.

The costs of solitary confinement are much higher than housing inmates in the general prison population. Mississippi recently reduced the number of prisoners it holds in solitary from 1,000 to about 150, and closed down their high-security Supermax unit. According to the ACLU, the reforms are saving Mississippi’s taxpayers approximately $8 million per year.

That economic perspective on solitary confinement is important, but there is a moral perspective to consider as well – and that is where the religious community can add a unique voice to the national conversation.

“We’re looking to provide some moral weight to the solitary confinement conversation by applying Jewish values,” said Shlomo Bolts, a prison consultant from Uri L’Tzedek.

“Sympathy for prisoners is not the most common sentiment amongst the American public. People do not want to be seen as weak or soft on crime,” said Rabbi Rachel Kahn-Troster, director of T’ruah: The Rabbinic Call for Human Rights. “In the Torah however, it clearly says that if someone asks for forgiveness three times and you don’t forgive them, then the onus is on you. In Judaism we believe in repentance and that punishments don’t go on forever.”

While Uri L’Tzedek and T’ruah approach the issue of solitary confinement from a distinctly Jewish perspective, the scope of both groups’ work on the issue extends well beyond the Jewish community.

“We don’t want to make this a Jewish issue. We want to make it an American issue. As Americans we’re allowing for it to happen, we’re paying for it with our tax dollars,” said Kahn-Troster.

“We want to apply the Jewish values we learn to help all people,” said Bolts.

The two groups are part of a growing movement against solitary confinement. A feeling that the status quo is simply untenable is circulating in religious communities and among the politically engaged in general; change, while it may not be imminent, feels inevitable.

“This is an exciting time. We really do see ourselves as being a force to help pass legislation to abolish or reduce solitary confinement,” said Bolts.

In June, Senator Dick Durban (D-IL) led a congressional hearing on solitary confinement, the first in American history. The hearing focused on the human rights issues associated with isolation, the economic implications of solitary confinement and the psychological impact on inmates during and after their imprisonment.

Both T’ruah and Uri L’Tzedek contributed written testimony to the hearings. They also participated in the National Day of Fasting, an interfaith effort to raise awareness of the significance of the congressional hearing.

“Fasting serves as a way to repent and bear witness. For me to be at the congressional hearing, sitting with a group of religious leaders fasting was a very powerful experience,” said Rabbi Kahn-Troster.

Fasting also serves as an act of solidarity with prisoners in solitary confinement, for whom hunger strikes are often the only available form of protest.

“I think about the hunger strikers at Pelican Bay [a California Supermax facility]. They get poor food, and then they refuse to eat it in order to draw attention to their situation. When I fasted it really hit home what these people must be going through,” said Rabbi Kahn-Troster.

T’ruah and Uri L’Tzedek are also working with the National Religious Campaign Against Torture. Founded in 2006 and comprised of more than 300 religious organizations, the campaign organizes protests against different forms of torture employed by the U.S., including those used at sites like Guantanamo Bay and Abu Ghraib.

Turning her organization’s focus toward solitary confinement now “seems like a natural outgrowth of our torture work,” said Rabbi Kahn-Troster.

Uri L’Tzedek and T’ruah now face the task of motivating American Jews to get more involved with the issue. Despite a history of involvement in a wide variety of social justice causes, the American Jewish community has generally avoided issues of prison reform.

“There is this misconception that Jews are somehow not incarcerated, yet Jews go to prison for the same reasons as everyone else,” said Chaplain Gary Friedman, chairman of Jewish Prisoner Services International, an organization that provides advocacy and spiritual services to Jewish prisoners and their families. Friedman estimates there are approximately 12,000-15,000 Jews in American prisons today, including some in solitary confinement.

Uri L’Tzedek’s approach to raising awareness is a mix of traditional advocacy combined with social science research led by the Tag Institute, a British-based think tank driven by Jewish social values. Among other things, Tag’s research seeks to generate quantitative survey data on the Jewish community’s perceptions of prisons and punitive punishment –and to find the most effective ways of organizing Jewish communities to advocate for humane alternatives to solitary confinement.

Meanwhile, T’ruah is mobilizing its network of 1,800 rabbis to raise the consciousness of members of their respective communities on the issue – and hopefully to inspire some activism about solitary confinement within their communities

As solitary confinement becomes an increasingly mainstream human rights issue, the work of the Jewish community is likely to grow and inspire further activism.

As it says in the Talmud (Ta’anit 23a), “Either companionship or death.”

The Costs of Solitary Confinement

Originally published in The JHU Politik and then on WJHU Radio blog

Solitary confinement is a form of imprisonment that goes by many names, ranging from “administrative segregation” to “disciplinary confinement” to “security housing.” All of these titles describe the practice of subjecting a prisoner to approximately 22-24 hours per day of isolated lockdown in a tiny cell. I am not going to focus on the moral implications of solitary confinement. Instead, I argue that we need to eliminate or greatly reduce the use of solitary confinement simply because it is far too expensive for our nation to afford, and because of its clear connection to an increased rate of recidivism when individuals are released back into society.

Contrary to popular belief, the practice of solitary confinement in the United States is not simply used for the most dangerous and threatening prisoners. It is estimated that over 80,000 prisoners are currently held in some form of solitary confinement, the majority of them having some sort of mental illness or cognitive disability. As of today, prisoners can be placed in indefinite isolation for months or years not only for violent acts, but also for ignoring orders, possessing contraband, testing positive for drug use, or even for using profanity. Many are children that are kept in solitary for “protection.” Many are gay or transgender, Muslim, or senior citizens. Many have reported rape by prison officials, and many are sentenced for questionable political or religious beliefs. In Virginia, for example, a group of Rastafarian men were placed in solitary confinement because they refused to cut their hair on religious grounds.

If  the  use  of  solitary  confinement  were  limited  solely  to  the most treacherous and predatory of prisoners, then most supermax prisons—facilities designed solely to provide long-term, solitary confinement for inmates classified as the greatest threats to national and international security—would be relatively empty because there simply are not that many individuals in this extreme category. It is estimated, however, that at least 25,000 inmates are currently in supermax facilities.

Because the federal government wants to avoid appearing “soft on crime,” we have been spending exorbitant amounts of money, often without much oversight, to appear “tough” on security. One study, conducted by Jeffrey Ian Ross, a Research Fellow of the Center for International and Comparative Law, estimated that the average per-cell cost of housing an inmate in a supermax prison is $75,000, as opposed to $25,000 for an inmate in the general prison population. This is, in part, due to the higher staffing costs needed to monitor those in solitary confinement. Additionally, constructing supermax prisons is a very expensive endeavor; the construction costs, according to a study conducted by the Urban Institute, are two to three times more expensive than a maximum-security prison.

As state budget cuts are being applied across the country to education, healthcare, social programs, housing subsidies and more, we simply cannot afford to be spending such ridiculous sums of taxpayer money on solitary confinement units. This is especially true when research, like the study conducted in 2006 by the Commission on Safety and Abuse in America’s Prisons, shows that solitary confinement has been found to cause serious psychological damage to inmates. Consequently, this psychological damage has been contributing to an increase in recidivism when individuals are released directly back into the general population.

Some states are already leading the way to reform this expensive and unhelpful system. Recently, Mississippi has reduced the number of prisoners it holds in solitary from 1,000 to about 150, and it has closed down its supermax unit. According to the American Civil Liberties Union, the reforms are saving Mississippi’s taxpayers an estimated $8 million per year.

The financial costs attached to solitary confinement are clear and untenable. Even disregarding the shockingly high rates of suicide for prisoners in solitary confinement, and the fact that prisons have become the largest inpatient psychiatric centers over the past thirty years, we should work immediately to reduce the number of individuals in solitary confinement simply for the sheer economic savings it would bring – savings that we as a country greatly need.

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Much of the research for this article came from Solitarywatch.com where I am currently interning.