In 1890, the U.S. Supreme Court was just three decades removed from ruling that blacks had “no rights which the white man was bound to respect” and six years away from declaring racial segregation constitutional. Yet, even in an era of such moral and legal confusion, the court was discerning enough to label the state’s use of solitary confinement an “infamous punishment” and very nearly declare it unconstitutional.
In re Medley, though, the court stopped short of ruling that solitary confinement constitutes a violation of the Constitution’s prohibition against cruel and unusual punishment. The use of solitary confinement has skyrocketed since then, especially over the last three decades, and with it so has evidence of its devastating effects on prisoners’ physical and mental health.
But this week, California, using the same logic that the Supreme Court did 125 years ago, took a significant step towards reducing the use of solitary confinement in its prisons. After years of courtroom drama, the state agreed to move more than 2,000 prisoners out of solitary under the terms of a lawsuit settlement.
Prisoners at Pelican Bay State Prison spend an average of more than seven years in solitary, according to the 2009 lawsuit they filed. In 2011, The New York Times found that 218 Pelican Bay inmates had been in solitary confinement for more than a decade and 90 for more than two decades.
Juan E. Mendez, special rapporteur on torture for the U.N., concluded that treatment of prisoners in solitary at Pelican Bay amounted “to torture or cruel, inhumane or degrading treatment or punishment” and was “contrary to the practices of civilized nations.”
Overall, California leads the nation in terms of the number of prisoners it houses in solitary confinement and the length of time they are kept there. This agreement doesn’t end solitary confinement; rather, it scales it back and caps the amount of time a prisoner can spend there.
It also gives prisoners in solitary confinement more time outside of their cells. It further requires the state to create high-security units that would allow some group activity for prisoners considered too dangerous for mainline housing.
The agreement is subject to a comment period, hearings and a judge’s approval. If they’re approved, which experts say is likely to happen, the state will have one year to implement the new rules.
Something close to a consensus has formed about the need to reduce the use of solitary confinement significantly. In a speech before the NAACP in July, President Obama asked, “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day, sometimes for months or even years at a time?”
On Wednesday, the Association of State Correctional Administrators, the leading organization for prison and jail administrators, released a statement calling for placing sharp limits on the use of solitary confinement and ending its long-term use. This is significant because its members had previously been the ones most responsible for the growth of solitary confinement.
Changes in California may serve as a template for reform in other states. Congress and at least 12 states are contemplating placing limits on solitary confinement, and many experts predict that the practice may soon be challenged at the Supreme Court.
Does the California agreement mark the beginning of the end of solitary confinement in America? Probably not. It will still be used to isolate the must unruly prisoners for short periods of time, as well as those who prove they can’t handle being housed with other people.
But it does offer hope to the vast majority of the estimated 80,000 prisoners who languish in solitary confinement across the country.
Daniel Allott is The Washington Examiner’s Deputy Commentary Editor
