The recent agreement, growing out of the case of Peoples v. Fischer, reached by the New York Civil Liberties Union (NYCLU) and the New York State Department of Community Corrections (DOCCS) to bar the use of solitary confinement for minors, pregnant women and the developmentally disabled is unquestionably momentous. Of similar magnitude is the state's pledge to develop strict isolation sentencing guidelines and maximum sentences limiting the use of solitary applicable to all inmates.
Similar movements are happening across the country in states as diverse as Colorado, Georgia, Indiana, Ohio and California. The US Senate Judiciary Committee has also, very recently, held hearings about the use of solitary confinement. From an international perspective, Juan Mendez, Special Rapporteur on Torture for the United Nations, argues that "[c]onsidering the severe mental pain or suffering solitary confinement may cause, it can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pre-trial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles."
While the agreement reached in Peoples provides for considerable and meaningful change, it is certainly not time for reformers to declare victory. The agreement does not significantly reduce the length, or improve the conditions, of solitary confinement for the majority of people currently enduring its debilitating effects. While it provides a measure of relief for certain groups (e.g., minors 16 and 17-years-old), other vulnerable populations (e.g., the elderly and the disabled) are left, literally, in the dark. Further, although it contemplates a revision of guidelines with respect to what misbehavior can be punished and for how long, it ultimately still permits people to be placed in 23-hour lock down for years at a time.
While there are undeniably enduring issues surrounding solitary confinement, the growing disquiet over its use presents an opportunity for an even larger discussion about prison reform generally. In the lawsuit that compelled the abovementioned agreement, NYCLU showed [PDF] that black and brown men are more likely to be sentenced to solitary confinement, and for longer periods of time, than are white inmates. That reality is nothing new. Almost twenty-five years ago, in Santiago v. Miles, a federal judge found a pattern of racial discrimination in the inmate disciplinary practices of one of New York's maximum security prisons. It is that invidious and undeniable racism that should, finally, cause a deeper look into prisons.
New York, like many other states, built the majority of its prisons in rural regions of the state far away from the urban cities where so many of the incarcerated live. Almost half of New York prisoners are from New York City, but every prison built in the state since 1982 is in upstate New York. Put another way, 90 percent of all New York prisoners are in upstate prisons, far from New York City.
Some maintain that it is a function of raw space—rural towns and cities have the vacant acreage necessary for state prisons. Others argue in similar fashion that prisons end up upstate because of the "not in my backyard" mentality expressed by the large numbers of people who dwell in cities. While those claims certainly have merit, they obscure the real reason for the proliferation of state prisons built in isolated, distressed rural areas—elected officials and community members from those towns, weighed down by lack of industry, manufacturing and jobs, expressly and vigorously lobby for prisons as economic saviors. The relationship between the decline of the upstate New York economy and the prison construction boom of the 1980s is unmistakable.
There are indeed myriad reasons for the "upstate" prison industrial complex, but no one even tries to suggest that any measure of concern, let alone compassion, for those locked in state prison serves as the slightest motivation behind the rural push for prisons. The US Census counts incarcerated people as "residing" in the county of their correctional institution. As a result, and at the expense of the communities and neighborhoods where so many inmates actually live, prison counties garner increased federal appropriations under standard population-based formulas. Further, in most states, counting inmates as residents of the county of the correctional facility impacts the number of representatives from state legislative districts. These truths supply ample incentives for towns to aggressively seek state prisons in their districts.
Ultimately, it is for purely economic reasons that so many elected officials in isolated rural towns and localities argue forcefully for "their" prisons. In many rural communities, the entire economy and job market revolve around the local prison. Prisons offer many unskilled jobs for members of the community with no or limited training or experience in law enforcement or security. Correction officers make up the most common form of prison-related job. Rural towns in upstate New York employ hundreds of locals to oversee thousands of outsiders. Add to the mix the racial imbalance—predominantly, if not exclusively, white officers guarding predominantly black and brown men—and the potential for abuse is as clear as the ugly images conjured up of plantations and slavery.
It is this upstate/city, white/black, guard/prisoner dynamic that leads, consciously or subconsciously, to so many of the prison abuses that have been exposed over the years. Whether it is due to lack of familiarity, understanding, and trust, or racial animus, intolerance, indifference or neglect, the predictable results are endemic abuses like discrimination in housing and job assignments and inadequate access to medical and mental health treatment. And now, more fully revealed, is the abuse of what are euphemistically called "special housing units" or "isolation cells"—in other words, rampant and prolonged solitary confinement.
Once inmates are locked up, in obscure, distant parts of the state, with limited access to family (or lawyers), the potential for abuse grows immeasurably. The question "who knows what goes on behind closed doors" becomes especially apt the farther and farther away those doors are from other people. Correction officers have vast discretion and authority to issue disciplinary charges. Hence, there are prisoners in solitary confinement for "infractions" as minor as having an untidy cell or talking too loudly. Thereafter, it is other Corrections employees who adjudicate the charges and determine the sentence. Consequently, draconian solitary confinement sentences are meted out on regular basis. Due process rights are rendered illusory in a world where Corrections officials act as judge and jury, far away, behind closed doors.
New York Governor Andrew Cuomo has shown a willingness to tackle much needed prison reform. He is moving to finance college classes for inmates in ten state prisons so that they can earn an associate or bachelors degree in two to three years, and it is on his watch that the state agreed to the changes in the use of solitary confinement. Now, he needs to meaningfully act on his promise of closing state prisons, prisons that were, ironically, built during an unprecedented expansion of prisons during his father, Mario Cuomo's, tenure as governor. In particular, he should close those prisons that are farthest away from the communities of the people they hold, and bring the incarcerated back home to their families to be "counted" in their neighborhoods and communities.
The spotlight on solitary confinement has revealed lawlessness, inhumanity and racism that define the insides of state prisons as many correction officers correctly intuit that their actions are effectively shielded from view. The changes in solitary confinement are unquestionably historic, but hopefully in the long run they will be even more unprecedented for the overall reform they generate.
Steven Zeidman is the Director of the Criminal Defense Clinic, and a professor of law, at CUNY School of Law. He is a highly respected trail lawyer and former supervisor at the legal aid society. He was awarded the outstanding professor of the year award at CUNY in 2011.
Suggested Citation: Steven Zeidman, New York's Solitary Confinement Reforms May Spark Larger Discussion, JURIST - Forum, Mar. 5 2014, http://jurist.org/forum/2014/03/steven-zeidman-solitary-confinement.php.
This article was prepared for publication by Brent Nesbitt, assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org