The ‘wolf’ of solitary confinement

AFTER THE ENACTMENT of the Missouri Compromise in 1820 prolonged the impasse over slavery with little hope for a peaceful resolution, Thomas Jefferson offered this assessment of the nation’s quandary: “We have the wolf by the ears, and we can neither hold him, nor safely let him go.”

That image — a perilous dilemma from which it seems possible neither to remove oneself nor to remain — makes a fitting illustration for the state’s current policy on solitary confinement as a tool for maintaining order in our prisons and jails.

We know that the sensory deprivation resulting from solitary confinement causes and worsens mental illness. It leaves prisoners unable to control their behavior, which fuels the risk that they may harm themselves or corrections staff. That is something we have known since at least 1787, when the wardens of a Philadelphia prison who were concerned that massing large numbers of prisoners in one place might provoke unrest decided to experiment by isolating some of them in small cells away from all human contact. The result of that experiment, as described in an opinion by the US Supreme Court some decades later, will be familiar to anyone who has witnessed solitary confinement’s effects.

“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,” the court said in its decision.

Notwithstanding our knowledge of its destructive effects, solitary confinement remains in widespread use, penological theory having apparently concluded that it is nonetheless indispensable to prison safety.

But some states are beginning to reconsider. Maine, Colorado, Kansas, Mississippi, and Ohio all have lowered their reliance on solitary confinement and have reported considerable cost savings without any increase in prison violence — decreases, in fact, in some states and by some measures.

With the improvements in those states in mind, the authors of last year’s criminal justice reform legislation attempted to follow their successful lead. The changes they proposed were modest, given the Baker administration’s allegiance to solitary confinement as an essential corrections tool. Former secretary of public safety Daniel Bennett customarily attended briefings on the subject armed with an ominous warning in the form of a video of a horrific stabbing attack by an inmate on a prison guard.

The bill’s cautious approach to solitary confinement reform, which leaves considerable discretion regarding details to corrections officials, directed that all prisoners in solitary confinement for more than 22 hours a day have access to vocational, educational, and rehabilitative programming and that they receive case reviews at least every 90 days to determine their readiness to return to the general prison population. The bill also directed the secretary of public safety to appoint an oversight committee of professionals in mental health, social work, and other related areas to review and offer comment on the administration’s policies.

The Baker administration released emergency regulations (permanent ones are expected to follow this spring) implementing the changes they’re willing to make. There aren’t many. The regulations do include some periodic case review of prisoners who are confined in solitary, but they don’t provide any access for prisoners to the rehabilitative programming they need in order to return to general population. And if prisoners continue to be deprived of opportunities for improvement, the only possible expectation is that they will continue to deteriorate, and the reviews of their confinement will inevitably dictate that they be returned to solitary. Most cynically, the regulations appear to allow the modest changes the law mandates to be bypassed entirely if prisoners are confined for 21 hours a day instead of the 22 hours referenced in the statute. Also, the solitary confinement oversight committee has not yet convened.

At a February hearing on the new regulations, people with first-hand experience of solitary confinement, their friends, and their families voiced disappointment and indignation, telling corrections officials that these essentially meaningless changes will simply continue to “create monsters.”

The regulations expire at the end of March, and the Baker administration will then face a decision about modifying them. Perhaps some improvements are in the offing – there’s word that the oversight committee may have its first meeting soon. But if not, and if the administration continues its position that prisons cannot operate in safety without a free hand to impose solitary confinement, we’re back to Thomas Jefferson’s forewarning on the subject of slavery – “justice is in one scale and self-preservation in the other.”

Margaret Monsell is an attorney practicing in the Boston area.