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  • Rikers is one of the largest jail complexes in the United States.

    Rikers is one of the largest jail complexes in the United States. | Photo: Reuters

Published 9 October 2015
In 2005, the Bureau of Justice Statistics found that 81,622 people were in some form of solitary confinement.

Solitary confinement is viewed as torture on the world stage, but the United States is still parsing the Eighth Amendment to do nothing about it.

Parsing words is a favorite American pastime used by elected officials to fiddle while Rome burns. Clinton made parsing famous by dissecting the meaning of “is” in his grand jury hearing on the Monica Lewinsky embarrassment. However, few people will remember his parsing the word “genocide” in April of 1994 when Rwandan Hutu death squads were butchering Tutsis as the world looked on. The United States never intervened in that massacre of 800,000 Tutsis even though the U.S. Freedom of Information Act revealed that Clinton had received intelligence that a “final solution to eliminate all Tutsis” was underway. He later issued a mea culpa.

The three-month bloodletting occurred while the powers parsed.

That brings me to the parsing of the 8th amendment constitutional directive on “cruel and unusual punishment.” Solitary confinement is a 200-year practice in America that has been defined as “cruel and unusual punishment” and torture by those who litigate against it as being unconstitutional.

President Obama and politicians on both sides of the aisle in the heat of the race to the Oval Office have recently raised the prison reform issue. In a speech at a NAACP convention the president said that solitary confinement is not “smart” and will not make us “safer.” But once solitary confinement is legally defined as “cruel and unusual punishment” then it becomes blatantly unconstitutional and can be dis-banned.

In 2005, the Bureau of Justice Statistics found that 81,622 people were in some form of solitary confinement. Solitary confinement has many names: special housing units (SHU), isolation, administrative segregation, special needs units, permanent lockdown, supermax, STGMU (security threat group management units), and more.

Although psychologists and sociologists will not be definitive as to the mental damage that severe confinement causes, in 1890 the Supreme Court said that “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.”

Terry Kupers, a forensic psychiatrist who has litigated against solitary confinement and abuse in the criminal justice system for the American Civil Liberties Union (ACLU) stated that 50 percent of “successful” prison suicides were detainees in solitary confinement while they comprised only 3 to 6 percent of the prison population.

In order to prove the Eighth Amendment of the Constitution in prison reform, the Supreme Court requires two conditions: 1) the punishment must be obviously “severe”; 2) prison officials must be indifferent to the abuse. However, the European Committee for the Prevention of Torture states that solitary confinement can be inhumane and degrading in extreme cases. The United States is a member of the Committee Against Torture that actually advocates for the abolition of solitary confinement.

In America it is very difficult to apply the 8th Amendment to the issue of solitary confinement. It’s a matter of parsing “cruel and unusual”. The conditions of California’s Pelican Bay State Prison brought about a recent federal class action lawsuit on behalf of prisoners of the Security Housing Unit (SHU), Ashker v. Governor of California. Confinement in a small, windowless cell for 22.5 to 24 hours a day without contact, phone calls or any educational or vocational stimulation are conditions that hundreds of prisoners have suffered for over 10 years and in some cases two decades.

This is obviously cruel and unusual punishment and the case argues that prolonged draconian confinement violates the Eighth Amendment. Also, because there is no real review of these confinements it violates the Fourteenth Amendment, right to due process. The 2011 and 2013 hunger strikes in the California prison system sparked a whole reform movement to eradicate mass incarceration, racism, and basically constitutionally illegal prison conditions. Also, California distinguishes itself by enforcing confinement upon people who, according to prison officials, are “associated” with a gang. Without a process to review this charge, the inmate has no recourse.

The 2015 judgment in the lawsuit did not define solitary confinement as “cruel and unusual” treatment even though over 500 prisoners had been held in SHU for over a decade and 78 prisoners for more than two decades. However, the SHU population was significantly reduced because the lawsuit decided, “validated gang affiliates who are found guilty of a SHU-eligible offense will enter a quicker two-year SHU step-down program for return to general population after serving their determinate SHU term.” All inmates who had served over 10 years in SHU for so-called gang-related affiliation will be automatically released and others will have a review process to reintegrate them into the general population.

Although this judgment can be seen as a victory for the Fourteenth Amendment and due process, it does not address the Eighth Amendment. It also does not ameliorate hardship for the thousands of mentally ill people who get caught up in the prison system and punished in solitary confinement for behavior that they are unable to control. Dr. Jeffrey L. Metzner, a respected expert in forensic psychiatry writes: “The use of segregation to confine the mentally ill has grown as the number and proportion of prisoners with mental illness have grown. Although designed and operated as places of punishment, prisons have nonetheless become de facto psychiatric facilities despite often lacking the needed mental health services.”

If the Supreme Court has not been able to litigate the obvious, that extended solitary confinement is cruel and actually a form of torture as acknowledged on the world stage, Supreme Court Justice Anthony M. Kennedy has recently dared to engage the Eighth Amendment in the prison confinement fight. His remarks provide a doorway into that argument by the nation’s highest court.

In the recent death row case of Hector Ayala that the Supreme Court upheld, Justice Kennedy addressed Ayala’s 20-year solitary confinement “in a windowless cell no larger than a typical parking spot for 23 hours a day.” In a separate opinion he wrote, “Years on end of near-total isolation exacts a terrible price.” Then borrowing from the 19th century language of Charles Dickens he added, “Even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”

I would say that he is “parsing” the Eighth Amendment.

The American Civil Liberties Union (ACLU) unequivocally states that prolonged confinement is expensive, “does nothing to rehabilitate prisoners, and exacerbates mental illness – or even causes it in prisoners who were healthy when they entered solitary.” They state that this abuse has become a “management tool” of the prison system that has been overused. In that respect, over the last few decades, prisons have become the largest mental health providers.

Solitary confinement and the parsing of “cruel and unusual” punishment is an excuse to do nothing as we did in Rwanda. Prison reform is an obvious mandate for the criminal justice system whether inspired by revolutionary acts of the prisoners themselves, advocated by Johnny-come-lately politicians, or urged by a Supreme Court Justice. Will we dance around the Eighth Amendment that is the third rail in a constitutional debate, or finally honor America’s foundational document that enlightens a very benighted age?

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