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Excerpted From: Jules Lobel, Mass Solitary and Mass Incarceration: Explaining the Dramatic Rise in Prolonged Solitary in America's Prisons, 115 Northwestern University Law Review 159 (2020) (263 Footnotes) (Full Document)


JulesLobelIn the last two decades of the twentieth century, prisons throughout the United States witnessed a dramatic rise in the use of solitary confinement, and the practice continues to be widespread. From the latter part of the nineteenth century until the 1970s and '80s, prolonged solitary confinement in the United States fell into disuse, as numerous observers recognized that the practice caused profound mental harm to prisoners. In 1890, the United States Supreme Court summarized the mental harm caused by solitary confinement, noting that “[a] considerable number of the prisoners fell ... into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, others, still, committed suicide” and even “those who stood the ordeal better ... in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

The era of large-scale isolation practiced in the early nineteenth century thus came to an end in the beginning of the twentieth century. Isolation was still used in American prisons, but typically as short-term punishment and on a much smaller scale. Even the harshest prison in the federal system, the infamous and widely criticized Alcatraz--which made no pretense of rehabilitation, employed no teachers, social workers, or psychologists, and severely limited contact with the outside world--nonetheless provided congregate work and recreational activities for most prisoners. While many state correctional systems designated certain prisons for the most violent prisoners, rarely did those prisons “operate[] on a total lockdown basis as normal routine.” Instead, prisons designated as maximum security “generally allowed movement, inmate interaction, congregate programs, and work opportunities.”

However, starting in 1972 with the creation of the control unit at the new United States Penitentiary at Marion, and escalating with Marion's total lockdown and the construction of fifty-seven new super-maximum (supermax) prisons in the 1980s and 1990s, the model of incarcerating large numbers of prisoners in near total isolation from each other and the outside world proliferated. By the end of 1998, approximately 20,000 prisoners, or close to 2% of all prisoners serving a year or more in American prisons, were incarcerated in supermax prisons. In these supermax facilities, all prisoners were isolated in their cells twenty-three hours per day, with virtually no contact with other prisoners or staff, no programming, no congregate recreation, and no contact visits with family or friends. Moreover, the use of solitary units throughout the nation's prisons dramatically expanded, with prison officials using a myriad of terms such as restrictive housing, disciplinary segregation, administrative segregation, and security housing units to denote the practice of solitary confinement. In 2000, the Bureau of Justice Statistics reported that approximately 80,000 people were confined in state or federal segregation units, and the data indicated that between 1995 and 2000, “the growth rate in the number of prisoners housed in segregation far outpaced the growth rate of the overall prison population.” In 2014, a report by the Yale Law School Liman Center and the Association of State Correctional Administrators estimated that, as of 2014, approximately 80,000 to 100,000 prisoners in state and federal prisons were in some form of restricted housing, defined as twenty-two to twenty-three hours per day isolated in their cells.

The reasons for this dramatic rise in the nationwide use of solitary confinement and the development of new supermax prisons have not been explored in depth. In particular, there has been little critical discussion of the rise of mass prolonged solitary as a product of the mass incarceration of the last several decades of the twentieth century.

The standard, simple explanation for the rebirth of mass solitary in American prisons is that it resulted from the significant rise in prison violence fueled in large part by the emergence of prison gangs, which seemed to leave prison officials with no alternative but to isolate the most dangerous, predatory prisoners. From this mainstream perspective, the rise of the supermax is tied to the same forces that brought about mass incarceration in that both the explosion of the prison population and the proliferation of supermax prisons were reactions to the rise in societal violence. As Congressman Robert Kastenmeier argued in opening the 1985 congressional hearings on the continued lockdown of prisoners in Marion, “[P]rison situations often mirror what is happening in society at-large.” The increase in violence in prison settings “is not dissimilar” to the violence taking place in society. So too, Norman Carlson, Director of the Federal Bureau of Prisons (BOP) in the 1970s and '80s, testified before Congress that “[p]risons are microcosms of the larger society,” and that it is necessary to “isolate” those who resort to “violence, threats, and intimidation” from society.

However, recent critical scholarship has critiqued the mainstream perspective that the rise of mass incarceration in the last quarter of the twentieth century was simply a reaction to increasing crime and violence in American streets. Michelle Alexander, a leading critic of the mainstream narrative, has argued that “mass incarceration in the United States ... emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Other critiques have also rejected the standard assertion that mass incarceration was simply a response to increased violence by pointing out the nature of the criminal justice system as a mechanism of social control and articulating other causes for the rise of mass imprisonment. While some of these writers do not ignore the clear fact that crime rates substantially rose in the latter part of the twentieth century, they explain the rise of mass incarceration as a reaction instead to the rise of the civil rights movement and the societal disruption and tumult of the 1960s and '70s. So too, the rise of mass solitary cannot simply be explained by an increase of violence in society or prisons.

This Essay locates the rise of mass solitary in the 1980s in the context of mass incarceration. It explains the dramatic expansion of the use of solitary confinement and the construction of new supermax prisons as an attempt by prison officials and politicians to maintain control of prisons in the face of increasingly radicalized, rebellious prisoners--often, but not exclusively, African Americans--who had organized protests and disobedient conduct in American prisons from the 1960s to the 1980s. As Professor Judith Resnik has persuasively argued, solitary confinement cannot be viewed in isolation from the panoply of harsh prison policies that characterize modern prison management. This Essay expands that perspective to analyze how the rise of solitary was connected to the use of mass incarceration as a form of social control. As society became more violent, so too did many prisons, but to view that violence as the underlying cause of the growth of supermax and other segregated confinement obscures the deeper, underlying causes of the rise of mass solitary. Those causes are linked to the rise of mass incarceration itself.

As an initial matter, prison officials responded to the growing political activism of the 1960s and '70s, often led by radical African-American activists, by developing a mass, often racialized system of control in prisons. This trend in prisons ran parallel to the political use of mass imprisonment as a form of social control in reaction to the political movements and disturbances of that era. Second, one aspect of the prison population's tremendous growth is the criminal justice system's shift to a preventive model--in other words, a shift from punishing people for crimes they committed to punishing dangerousness, namely, locking people up for long periods of time to incapacitate them from committing crimes in the future and to deter others from committing offenses. Similarly, the rise of the supermax and prolonged solitary confinement was in part premised on a shift in the rationale for solitary--from a short-term, discrete punishment for alleged prisoner misbehavior in prison to lengthy, often indeterminate incapacitation and isolation of prisoners who were perceived to be dangerous as a preventive measure. Third, mass incarceration accelerated the overcrowding of many state prison systems, often resulting in worsening prison conditions and a subsequent rise of turmoil and violence in prisons. These disturbances were then used as a justification for the creation of supermax prisons. Fourth, the same law-and-order political ideology based on punitiveness and symbolic toughness led to initiatives from politicians, rather than correctional officials, who sought political gain.

Uncovering the history and causes of the dramatic rise in supermax prisons and the use of prolonged solitary confinement in the 1980s and '90s is critical to understanding not only how we got to where we are, but how we can end this cruel and inhumane practice. The rationale that prolonged solitary as the only way to manage very violent prisoners underlies both society's and courts' disposition to allow what seems obviously harmful a person in a small cell; twenty-three hours per day for years; without any programming or physical contact with spouses, families, or friends; and with little exercise except in small individual cages or rooms. While the past decade has witnessed some reform of mass incarceration and increasing public, judicial, and correctional-official concern that solitary confinement has been overused and should be limited or ended, this reform spirit often does not address the problem of the seriously violent prisoner. Some critics of mass incarceration have recognized that we will never end mass incarceration until we face the problem of violence openly and honestly. So too, opponents of solitary confinement who have focused on advocating for particularly vulnerable populations or prisoners who present no serious security threat must confront the problem of what to do with the very violent prisoner.

The Fourth Circuit's recent decision in Porter v. Clarke illustrates this problem. Reflecting the scientific consensus, the Fourth Circuit found that the placement of prisoners on Virginia's death row in prolonged solitary confinement created a “'substantial risk’ of serious psychological and emotional harm,” and therefore violated the Eighth Amendment. Nonetheless, the Fourth Circuit found that the district court erred in disregarding the State's argument that legitimate penological considerations justified the challenged conditions on death row. The court explained that had officials presented such legitimate reasons, which in Porter they did not, similar conditions of solitary could be upheld. For the Fourth Circuit, “prison officials tasked with the difficult task of operating a detention center may reasonably determine that prolonged solitary detention of the inmate is necessary to protect the well-being of prison employees, inmates, and the public or to serve some other legitimate penological objective.” Some courts have noted that the role “legitimate penological interests” plays in Eighth Amendment litigation has been confusing. Where prison officials knowingly deprive a prisoner of basic human needs, such as the need for human contact, no invocation of “legitimate penological reasons” should justify such a practice. Nonetheless, Justice Anthony Kennedy undoubtedly expressed a sentiment shared by other judges when he claimed that the issue in a judicial challenge to solitary confinement will be “whether workable alternative systems for long-term confinement exist.”

Uncovering the history of the rise of the supermax and debunking the myth that the supermax was simply a reaction to a rise of prisoner violence also demonstrate that at critical junctures, alternatives to the supermax did, in fact, exist. Nonetheless, the state and federal governments elected to ignore those alternatives. The recognition that alternatives to prolonged solitary confinement do exist, as states such as Colorado and North Dakota have now concluded, provides hope that this inhumane practice can and will be ended.

The first Part of this Essay recounts the origins of the supermax prison at Marion Federal Penitentiary in the late 1970s and early 1980s and demonstrates that the rise of mass solitary was more an official reaction to the need to control politically active and disruptive prisoners than to the violence narrative.

The second Part explores prison officials' need to reassert control over their prisoners and draws the parallels between the rise of both mass incarceration and mass solitary as a racialized mechanism of social control.

The third Part introduces the preventive paradigm as a model to control prisoners and demonstrates that the concept of preventing future misconduct fueled both mass incarceration and the modern supermax, resulting in minimizing due process restraints and erroneously isolating thousands of people.

Finally, the last Part analyzes the current reform movement and the alternatives that have been proffered and utilized to replace solitary, supermax confinement. The Essay concludes that prolonged solitary confinement can be abolished, and that prison officials have alternatives that can safely manage even very dangerous prisoners.

[. . .]

The current reform movement to end prolonged solitary confinement has two major tasks. The first is to demonstrate the risk of harm the draconian practice imposes on those prisoners subjected to it. In the last decade, our understanding of the harm wrought by solitary confinement has been deepened by the work of social scientists who have shown that loneliness and social isolation are as great a risk factor for a number of serious physical conditions, such as hypertension, heart attacks, and strokes, as smoking or obesity. The work of neuroscientists has also established that solitary confinement harms the human brain.

The second task is to overcome the mythology of the violent predator, for whom prison officials have no alternative but to confine in draconian isolation from other inmates, staff, and even families and friends. This Essay has focused on that task. It has demonstrated that mass solitary in this country developed not in response to that violent predator, but rather as a means for officials to achieve control of political activists and “troublemakers” amongst prisoners. Moreover, most prisoners caught up in the solitary dragnet could be safely managed in well-run general population units instead of warehoused in modern supermaxes. Finally, there is an alternative to the modern supermax for those few who cannot be safely managed in general population: separation without isolation.

Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School.

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