Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement
When California Governor George Deukmejian several years ago dedicated what was then the state’s newest prison-a massive, windowless”security housing unit” (SHU) designed to segregate and isolate over a thousand prisoners from the rest of the prison system and from one another–he boasted that the Pelican Bay facility was “a state-of-the-art prison that will serve as a model for the rest of the nation. . . .” A California prison spokesman would later confirm that “we’ve had delegations here from other states and even other countries” studying the prison, one that kept prisoners confined to their cells almost twenty-three hours a day and minimized all forms of human contact through the use of technologically sophisticated locking and monitoring devices. News commentators closely followed the legal case that decided the constitutionality of the prison because they believed the proceedings might well “determine the shape of American penology in the 21st century.” Even the federal district court judge whose written opinion criticized the operation of the facility noted that it was a “prison of the future” and acknowledged that the prisoners’ claims of cruel and unusual punishment had “generated considerable attention because the Pelican Bay SHU is considered a state-of-the-art, ‘modem day’ SHU, and thus a potential forerunner for other similar units around the country.”
As one of the first and most visible of these “super-maximum security” facilities, the Pelican Bay SHU in Crescent City, California was one of the very few to attract media attention. The legal challenge to conditions inCalifornia’s “supermax” resulted in a strongly worded opinion in which the federal court condemned certain features of the prison but left the basic regimen of segregation and isolation largely intact. Although the court concluded that this kind of confinement “may press against the outer bounds of what most humans can psychologically tolerate,” the judge refrained from ordering any substantial modifications in the overall conditions that prevailed inside this supermax prison. To many observers, and to correctional officials hoping to emulate the California model, this seemed to pro-vide precisely the kind of constitutional imprimatur needed to move forward and make this “prison of the future” a reality in various jurisdictions across the country.
The SHU at Pelican Bay thus appears to be at the cutting-edge of an extraordinarily important yet little-debated correctional trend: the increasingly widespread use of long-term and intensely segregated confinement supposedly reserved for the system’s most troublesome offenders. Such confinement typically takes place inside newly-created, specialized housing units devoted exclusively to the task of establishing and maintaining previously unheard-of conditions of restricted movement and social isolation. Despite the dramatic shift in correctional philosophy that this trend represents and the extraordinary public expense that it has incurred, there has been surprisingly little public discussion or political debate about the wisdom of this new approach to prison punishment. Notwithstanding the potential damage to prisoners incarcerated for long periods of time in these segregation units and the potential risks to those members of the public who will eventually interact with some of the most adversely affected prisoners once they are released, few legal challenges have been lodged against these new policies and little or no systematic expert commentary has appeared analyzing the psychological and correctional consequences of this kind of penal confinement.
Indeed, although solitary confinement has a long and, at times, controversial history in the United States, a new consensus has emerged quietly over the last few decades among prison policymakers. In part in response to increasing pressures in badly overcrowded prison systems and the absence of resources with which to attempt alternative approaches, correctional administrators are turning to aggressive segregation in the hope of enhancing their control over prisoners. The invention of a new and supposedly improved penal form–“hi-tech maxi-maxi” prisons devoted exclusively to the task of long-term segregated confinement–has given them a unique and (they argue) effective weapon in this war against unwieldy numbers of unruly prisoners. By 1991, some version of these “supermax” prisons featuring extreme segregation and isolation was functioning in 36 states, with many others in the planning stages. In addition, a newly opened, highly restrictive, modern “control unit” has apparently committed the federal penitentiary system to the use of this penal form for some time to come. Although these trends have occurred quickly and quietly, they have had an enormous impact on American corrections. It is likely that at no point in the modern history of imprisonment have so many prisoners been so completely isolated for so long aperiod of time in facilities designed so completely for the purpose of neartotal isolation.
In this Article, we provide a comprehensive review of the existing literature on the effects of solitary confinement and punitive segregation and a discussion of the recent U.S. case law limiting its use in state and federal prisons. We address the psychological question of whether solitary confinement represents a distinct and distinctly worse form of incarceration than maximum security imprisonment generally. After providing a brief history of solitary confinement as legal punishment, we look in detail at its psychological effects and focus especially on the threat it poses for the mental health of prisoners. We will suggest that the scholarly literature on this question is clear and that there is sufficient empirical justification to regard solitary confinement as a unique correctional environment that warrants special legal status. We turn next to a discussion of the way in which the courts have treated this issue, both historically and through the lens of contemporary legal doctrine. We will argue that constitutional doctrines currently governing solitary confinement fail to recognize the nature and magnitude of the psychological trauma that can be inflicted by this form of punishment and, therefore, that they fail to adequately regulate its use by properly limiting the nature and duration of prisoners’ exposure to such confinement. We conclude by proposing a series of remedies to these legal shortcomings in the form of model regulations for the use of solitary confinement and punitive isolation.
A Reaction to Ian Kysel’s “Banishing Solitary: Litigating an End to the Solitary Confinement of Children in Jails and Prisons”
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Banishing Solitary: Litigating an End to the Solitary Confinement of Children In Jails and Prisons
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This essay argues for viewing incarcerees as part of shared humanity of both incarcerated person and the person to whom harm has been done.