Friday, 6 May 2016

SOLITARY CONFINEMENT: Is it really necessary?                                                                        

Solitary confinement is a form of imprisonment in which a prison inmate is isolated from any human contact, often with the exception of members of prison staff. It is sometimes employed as a form of punishment that is beyond normal incarceration for a prisoner and it has been cited as an additional measure of protection for the inmate. It is also given for violations of prison regulations or as a form of protective custody and, in the case of possible suicide, to prevent access to items that could disrupt the prisoner’s wellbeing.

In 1972, I was invited by the California Corrections Department to visit the State’s jails and prisons. During my visit to the San Quentin Penitentiary, just outside of San Francisco, I was taken to the basement of one of the buildings in the prison and introduced to a prisoner who was in a cell by himself. In fact there was no other person in that small cell block other than him.  He had been in that cell for the past eleven years. He had been given books to read, he could indulge in his hobby of painting and there was a television set hung on wall just outside his cell which he could turn on or off by pulling on a thin rope.

 He was originally in prison for killing someone and later while in the prison, he killed a prison guard. He was convicted and again he was sentenced to life in prison. But this time, he would serve his sentence in solitary prison. The reason for this was that he was considered too dangerous to be anywhere else in the prison. He was a huge black man who could get out of his handcuffs by merely pulling his hands outward. It took six big burly guards to get him into the cell. I found him very interesting to talk to.  After many years more years had passed, a court ordered him to be released back into the general population of the prison. No doubt he was no longer a danger to anyone anymore considering the fact that by then, he was a very old man.
Ten years earlier, (more than half a century ago) I had a very personal experience in solitary confinement. I have been convicted of harbouring a friend being looked for by the police and was sentenced to a reformatory for first offender adults for fifteen months. During the thirteenth month of my incarceration, the prisoners were talking about rioting. I was asked by the superintendent to talk them out of it. I failed. Half the prison rioted and since I had earned the respect of the prisoners, (I was referred to by them as ‘the professor’ since I was older than most of them) I was asked by the head of security of the prison to calm down the prisoners that hadn’t rioted. I was successful. Within a week, I was given an office in the administration building as a trustee.

A week after that, the Superintendent demanded that I give him the names of the leaders of the riot that hadn’t been yet being determined. I refused, naturally. He ordered that I be kept separate from the prisoners so I had to eat my meals in a small bull pen in the administration building and then go to my office. After supper, I would remain in that bull pen until nine at night in which I would then be taken to my own cell.  A couple of weeks later, the superintendent then tried another tact. He had me placed in solitary confinement where I remained for four months.

I kept my sanity by using a pencil I found on the floor. I am sure you have seen walls were some of the paint has peeled off. Well this cell had such walls. Where the paint had come off, I treated those spaces as open water and where the paint remained on the wall, I treated them as land. Bridges were straight lines and boat trips were dotted lines. I created a puzzle. Which was the fasted way from A to B? Was it by boat or by walking? Years later, I met a friend who served some of his time in that cell and he told me he that he found the puzzle interesting and entertaining.       

The superintendent had eventually realized that he had made a martyr out of me. Even the guards were unhappy that he had sent me to solitary confinement and were slipping me extra food such as sandwiches. He decided to have me transferred to what was considered then as the toughest prison in the Province of Ontario—The Millbrook Reformatory. What he didn’t know was that the superintendent of that reformatory was an old acquaintance of mine who had offered me a job working in another correctional facility where he had been the superintendent. I turned down his offer. Needless to say, I had no problems in his reformatory that I had been I was sent to and after my release, we became very good friends.

Incidentally, the superintendent (Charles Sanderson) in the reformatory I was original in was later sacked for misconduct. Years later, I was pardoned and later still, the governments of Canada and Ontario destroyed my record because of my work in crime prevention, my treatment of offenders as a group counsellor and because of my many speeches I gave at United Nations Congresses around the world as a criminologist.

In 1993, Craig Haney, a social psychologist, interviewed a group of inmates in solitary confinement at Pelican Bay State Prison. It is California’s toughest penal institution. He was studying the psychological effects of isolation on prisoners, and Pelican Bay was among the first of a new breed of super-maximum-security prisons that States around the country were beginning to build.

Twenty years later, he returned to Pelican Bay for another set of interviews. He was startled to find himself facing some of the same prisoners he had met before, inmates who now had spent more than two decades alone in windowless cells.

Few social scientists question the fact that isolation can have harmful effects on the human mind. Despite their misgivings, rsearch over the last half-century has demonstrated that it can exacerbate mental illness and produce symptoms even in prisoners who start out psychologically in good health.

Prisoners recounted struggling daily to maintain their sanity. They spoke of longing to catch sight of a tree or a bird. Many responded to their isolation by shutting down their emotions and withdrawing even further, shunning even the meager human conversation and company they were afforded.

When I was in the Millbrook Reformatory as an inmate, I remember seeing a tree at the top of a hill on the other side of one of the prison`s walls. A year after I was released, I climbed that hill and when I reached the tree, I hugged it as I looked down on the reformatory at the base of the hill while all the time appreciating my freedom.  

In the last few years, the use of prolonged solitary confinement, a practice that has been widespread in the United States and elsewhere has received unprecedented levels of attention. President Obama, who became the first president to visit a federal prison, questioned (and I quote) “Do we really think it makes sense to lock so many people alone in tiny cells for twenty-three hours a day, sometimes for months or even years at a time?” unquote

In 2012, the Center for Constitutional Rights filed suit in a federal court against State officials on behalf of Pelican Bay inmates who had spent more than 10 years in solitary confinement, claiming that their prolonged isolation violated their Eighth Amendment rights. (cruel and unusual punishment)

In Furman v. Georgia, (1972), Justice Brennan wrote, "There are four principles by which we may determine whether a particular punishment is 'cruel and unusual. They are,”

The ‘essential predicate’ is that a punishment must not by its severity be degrading to human dignity, especially torture.”

A severe punishment that is obviously inflicted in wholly arbitrary fashion."

"A severe punishment that is clearly and totally rejected throughout society."

"A severe punishment that is patently unnecessary."

Justice Brennan also wrote that he expected that no State would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a (and I quote) “cumulative analysis of the implication of each of the four principles.”  In this way, the United States Supreme Court has set the standard that a punishment would be cruel and unusual if it was too severe for the crime committed, if it was arbitrary, if it offends society's sense of justice, or if it was not more effective than a less severe penalty.

Many prisoners in California were placed in the isolation unit not because of their original crimes but because they were deemed to be gang members or gang associates, under California’s policy at the time. The State Corrections Department said that such long-term confinement was necessary because of gang killings in the prisons and attacks on staff members and other inmates. 

I find it difficult to find fault with that reasoning since the protection of the other inmates, guards, staff and visitors alike is paramount and has to take precedence over the rights of the gang members and other violent prisoners who are deemed to be dangerous.

Prison administrators say there are some inmates so violent or unmanageable that they must be kept apart from other people. But consigning inmates to solitary for years or even for decades, as California has done is viewed by an increasing number of top corrections officials around the world as unnecessary and ineffective, and some human rights groups have called it a form of torture.

Many of the inmates Dr. Haney interviewed talked wistfully about mothers, wives and children they had neither touched nor spoken to for years. Prisoners in the isolation unit were not allowed personal phone calls and were prohibited from physical contact during visits. Some had not had a single visitor during their years in solitary.

One cannot fault the prison system if some of these prisoners in solitary confinement don’t have anyone they know who doesn’t want to or cannot visit them because of the distance between them and the prisons.

 Of course, if they have family members willing to meet with them, then arrangements should be made for such meetings. If the family members are within a day’s drive, then once a month is fine for a four-hour visit that seems appropriate. If they are more than a day’s drive, two days in a row at four hours each visit would be appropriate. Of course, there would have to be guards standing nearby at each visit if matters get out of hand.

There are prison volunteers who are willing to communicate with prisoners who have no family members that the prisoners can communicate with. I am sure, some of these kind souls will even communicate with s violent prisoner. They can use pseudonyms to protect their identities. Once these volunteers are vetted and it is determined that they are not oddballs that are searching for violent prisoners to marry, this may very well solve part of the problem facing such prisoners in isolation. Of course, this should be available only to prisoners who are in solitary confinement for a long stretch of time.

 Long term prisoners should each also be permitted to have access to the controls of a radio or television sets or both and the earphones to hear what is emanating from these two pieces of equipment. They should also have books to read or a picture puzzle to work on  and even paint equipment and canvasses to paint on if they are so inclined. The prison padre should visit them at least once a week so that they have human contact with persons who are not just guards giving orders to them.

Now I am not suggesting that those prisoners who are in solitary for less than a month should have these benefits if they are in the cells strictly for administrative punishment.

The use of solitary confinement in Israeli jails nearly doubled between 2012 and 2014, according to a UN panel investigating the Jewish state over a raft of alleged violations of prisoners' rights. The number of people held in isolation jumped from 390 to 755 over that period. A report by rights groups B'Tselem and Hamoked included accounts from prisoners who said they had been bound hand and foot to a chair for hours on end and exposed to extreme cold and heat.

In 2014, one of the most controversial practices in criminal justice, solitary confinement, faced unprecedented challenges. As a result of legislation or lawsuits, ten states adopted 14 measures aimed at curtailing the use of solitary, abolishing solitary for juveniles or the mentally ill, improving conditions in segregated units, or gradually easing isolated inmates back into the general population. In January of that year the correctional officers’ union in Texas even called for doing away with solitary confinement on death row, stating in a letter to the Texas Department of Criminal Justice that if inmates are stripped of all privileges they become harder to manage and more dangerous to corrections officers.

On July 29, 2015, a proposal was introduced in Congress by Rep. Cedric Richmond (D-LA), Rep. Jason Chaffetz (R-UT), Rep. Bobby Scott (D-VA), and Rep. Tom Rooney (R-FL) in an attempt to dramatically reform the practice of solitary confinement in the United States federal prison system.

Key provisions of the Solitary Confinement Study and Reform Act include: The establishment of the National Solitary Confinement Study and Reform Commission to work with all key stakeholders to study the practice of solitary confinement and recommend best practices for reform to Congress and the Administration; the requirement that the Department of Justice issue regulations on best practices in this area that would bind facilities in the Federal prison system and incentivize changes in behavior in state and local prison systems; and the implementation of significant changes to the way incarcerated persons with mental illness and youth are designated for solitary confinement.

A Los Angeles County on May 3rd 2016 approved sweeping restrictions on the use of solitary confinement for juvenile detainees, thereby joining a larger movement against a practice that many people consider cruel and unproductive.

Part 1 section 31 of the United Nations Standard Minimum Rules on the Treatment of Prisoners states; Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.

In September of 1980, in one of my speeches I gave at the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders that was held in Caracas, Venezuela, I chastised the American government for abusing their imprisoned young offenders. Some of the abuses were horrific. I suggested that what was needed was a bill of rights for young offenders. The American delegation upon hearing what I had said, asked permission to respond to my allegations. Permission was granted and they admitted that I was right about the allegations and they sided with me that there was a need for a bill of rights for young offenders. That night, they asked me to join them in their drafting up a resolution that would be presented to the Congress the following morning. It was presented and all the nations attending the conference agreed with the American resolution that conferences should be held world-wide for the purpose of drafting up a bill of rights for the UN to accept. Five years later, the General Assembly of the UN accepted the recommendation I gave in 1980 and my proposal is now referred to as the United Nations Standard Minimum Rules on the Administration of Juvenile Justice.

The aforementioned Rules are extensive and included in them is the following statement; “The Standard Minimum Rules for the Treatment of Prisoners were among the first instruments of this kind to be promulgated by the United Nations. Some essential protections covering juvenile offenders in institutions are contained in the Standard Minimum Rules for the Treatment of Prisoners.” unquote

It took the Los Angeles County 36 years to finally adhere to the tenet of the bill of rights for young offenders that I had proposed in 1980. Even after the UN general assembly made it official in 1985, the young offender facility in that Los Angeles County was still placing their young offenders in solitary confinement. Well we all know that adage; It is better late than never.

While most Americans have heard about the use of solitary confinement in prisons, not as many are aware of the brutal reality of the practice and the enormous toll it takes on human lives, as well as society in general. Solitary confinement reform legislation at both the state and federal levels can counteract the demonstrated tendency for prison officers to over utilize solitary confinement as an intervention of first resort, and with devastating consequences.

Research has left no doubt as to the detrimental impact of solitary confinement, has on prisoners, particularly to minors and those with mental illnesses. Further, studies have clearly shown solitary confinement to be both expensive and ineffective. The inhuman isolation of solitary confinement creates and exacerbates mental illness in prisoners, resulting in an increase in prison violence, jeopardizing the public safety upon a prisoner’s re-entry into society, and increasing the likelihood of recidivism.

In August, 2012, an inmate serving 15-45 years for manslaughter, burglary and attempted arson beat a correction sergeant so badly that he was hospitalized with two broken ribs and a punctured lung. In September of that year, an inmate doing 15-to-life for murder and robbery assaulted two correction officers after they tried to break up a fight he was having with other inmates.

After these two incidents which are unfortunately common inside New York’s correctional system, those two inmates were removed from the general population. Following a legal hearing process, they were sentenced to disciplinary confinement in a special housing unit—SHU, what outsiders call “solitary confinement and what prisoners call, “the hole.”

This is our reality. Inmates continue to perpetrate violence even after they’ve lost their freedom and are living behind prison walls. For this reason, correctional staff face a dual challenge: (1) provide safety and security to both inmates and fellow staff, while (2) also implementing programs designed to rehabilitate inmates so that they live as law-abiding citizens once they return to society.

Canada’s federal prison agency has introduced a series of re-forms to the way it handles solitary confinement, part of its response to a highly critical coroner’s inquest into the death of Ashley Smith that concluded two years ago. She committed suicide after spending most of her time in prison in solitary confinement.

A memo to CSC staff obtained by The Globe and Mail lays out 12 changes to the policy governing administrative segregation, the controversial practice of confining inmates for up to 23 hours a day in a cell the size of a compact car. They include the introduction of an advocate to help mentally ill inmates held in segregation and a new questionnaire tool to evaluate all inmates admitted to segregation.

Other reforms outlined in the memo to CSC staff include adding a mental-health professional to the internal prison teams that periodically review all inmates in isolation and new layers of evaluations to identify “practical alternatives to administrative segregation” for inmates identified as having “acute or high level mental-health needs.”

The new rules will circumvent three key reforms that are needed to improve segregation in Canadian prisons—limits on time spent in solitary; adjudication of an inmate’s suitability for segregation by an independent body; and legislative change.

When officials are talking about segregation or solitary confinement, these are topics of bodily integrity, of the fundamental liberties that prisoners retain.  However, this is a topic that can only be addressed appropriately through legislation. The Commissioner’s Directive reform in my opinion is not an appropriate fix to the problem of solitary confinement.

We must consider the consequences that society will face after we have released a prisoner back into society. When you release a prisoner who has spent a great deal of time in solitary confinement, that person you release back into society is a very angry ex-con. It is no different than beating a dog continuously and expecting the dog to be a caring and loving pet.

I believe that a better way to resolve this problem of solitary confinement is simply place the offender back into his own cell if he has a cell to himself and don’t release him back into the general prison population until he has served his punishment or has cooled down enough to be released from his cell to join the other inmates.

 I do however make one proposal. If a terrorist who has murdered his victim or victims is caught, he should be locked up for life in solitary confinement with little or no privileges at all. That is what the Americans are doing. I applaud them for that.

That kind of treatment is far from what is being done in Norway. Let me give you an example.

Anders Breivik is a Norwegian terrorist, who committed the 2011 Norway attacks. On the 22nd of July 2011, he murdered eight people by detonating a van bomb amid the Regjeringskvartalet in Oslo, then he  shot dead 69 participants of a Workers' Youth League at their summer camp on the island of Utøya. In August 2012, he was convicted of mass murder, causing a fatal explosion, and terrorism and sent to preventive prison for 21 years;  the maximum sentence one can get in Norway for murder.  There is the possibility however of one or more extensions for as long as he is deemed a danger to society. In the US, one man received 1500 years for the murder of three people. In Canada, a man who murdered three cops got seventy-five years in prison, all sentences being consecutive. Both of those e men will die in prison.

On 15 March 2016 a four-day civil trial  began in which Breivik is suing the Norwegian Correctional Service, over his solitary confinement and the general conditions of imprisonment. Breivik has claimed that his solitary confinement violated his human rights and asserted that he had been subjected to degrading treatment. The 20th of April 2016 verdict in which the government was found to have breached article 3 of the Human Rights Convention, was appealed by the government on the 26th of April 2016. Let  me tell you what his imprisonment is like.

He is isolated from the other inmates, and only has contact with health care workers and guards.  As of 2015, Breivik has been visited by a prison visitor—a chaplain (whose military rank is that of a major) every two weeks. The only physical contact Breivik has had since his arrest was with his mother who was allowed to see him five times without the glass wall between them before she died in 2013. The government has not permitted any of the visitors that he has asked for to visit him. Security rules mean Breivik's verbal interactions with prison guards and the chaplain take place through a thick glass barrier.

As of 2016, Breivik has space that is equivalent to three prison cells. He gets daily newspapers, has a television set, exercise machines and can cook and do his own laundry. He also has an electric typewriter and an X-box (without internet connection—that connects him with various video games) in his cell. In 2014 he made demands that he would starve himself to death if he was refused "access to a sofa in his large cell and a bigger gym area in his cell to work out in.  Furthermore he said that "Other inmates have access to adult games while I only have the right to play less interesting kids’ games.

I remember being invited to visit the Kingston Penitentiary in Kingston, Ontario and looking at a cell in that a lifer was living in. He was also a trustee.  His cell was aurally two cells side by side and there was an opening in which he could enter both cells. One cell was where he slept and where the toilet was and the other cell was his study. There were lamps on the tables and chairs in both cells.

When I was in solitary confinement in 1962, my cell comprised of a toilet and a bed with no mattress. At night, I was given a blanket and a pillow and in the morning, they were taken from me. But then, I hadn’t killed 77 people like Breivik did. My punishment was for me choosing not to be a snitch. Of course, I could talk to the prisoners on either side of my cell which is more than Breivik can do.

Solitary confinement does have its legitimate purposes but it should not be used unfairly or for long periods of time; unless of course there is a chance that the prisoner will be killed by other prisoners or the prisoners in such confinement will be a danger to other prisoners, guards, staff and others who are in the prison. Mass and serial murderers and terrorists who kill should certainly not have enormous cells and privileges like what Brievik has. Let their brains rot in their solitary confinement cells until they die of old age. 

UPDATE:  May 10, 2016

Ontario’s ombudsman is calling on the provincial government to abolish the practice of putting inmates in indefinite segregation.

Paul Dubé says indefinite segregation should be defined as longer than 15 days and no inmate should be in segregation for more than 60 days in a year.

Dubé says Ontario should develop a long-term plan for inmates with developmental, behavioural and mental-health challenges, but, in the short term, inmates in segregation should be assessed by a mental health provider every 24 hours.
The ombudsman’s office has received 557 complaints about segregation in provincial correctional facilities in the past three years, and in one case someone was in segregation for more than three years.

The ombudsman says the Ministry of Community Safety and Correctional Services does not routinely keep track of how many inmates are in segregation, but it recently found that the Ottawa-Carleton Detention Centre and the Central East Correctional Centre had 1,677 segregation admissions over five months last year.

Dubé says, “it is difficult to understand the ministry’s policy position that segregation is a last resort, carefully controlled and monitored,” when, instead, it seems to be a tool used to “effectively punish the most difficult and vulnerable inmate.

UPDATE: May 12, 2016 

An Ontario judge has awarded $85,000 to two inmates after ruling their Charter rights were violated by staffing-related lockdowns at the Milton jail. The judge said he had little difficulty concluding that their treatment was “degrading,” “disproportionate” and “excessive” as to outrage standards of decency. The judge said, “The conditions of detention during lockdowns are very close to segregation or solitary confinement. In some ways they are worse. The inmate was holed up with another inmate not of his choosing. The actual periods of confinement for 24 hours a day are entirely arbitrary, and unpredictable, both as to timing and length.” The judge found that most lockdowns were caused by staffing shortages. The units that housed the inmates were locked down for 50 per cent of the time in 2014 and 2015 on average, with a peak of 55 per cent.     

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