INDORE INSTITUTE OF LAW
(Affiliated to D.A.V.V. & Bar Council of India)
Year _____ Semester ______
Certificate Of Supervisor
This is to certify that the project work entitled “EVALUATION OF THE NEED OF
SOLITARY CONFINMENT IN THE HUMAN RIGHTS ERA”; submitted by
Avinash Rai for the partial fulfillment of the B.A.LL.B Degree (Eighth semester)
offered by Indore Institute of Law, Indore (affiliated to D.A.V.V. and BCI) during
the academic year 2013-18 is a record of the Student’s own work carried out by her
under my supervision. The matter embodied in this thesis is original and has not been
submitted for the award of any Degree, Diploma or such other titles.
Date : 06-07-2017
Nameof Supervisor:Assistant Proff. SAKSHI SHARMA
Declaration of Researcher
This is to certify that Thesis/Report entitled “EVALUATION OF THE NEED OF
SOLITARY CONFINMENT IN THE HUMAN RIGHTS ERA” which is submitted
by me in partial fulfillment of the requirement for the award of degree B.A.LLB.
Degree (seventh Semester) offered by Indore Institute of Law, Indore comprises only
my original work and due acknowledgement has been made in the text to all other
Date: 06/07/2017 Nameof Student:
I would like to take this opportunity to express my profound gratitude and deep
regard to my (Project Guide Miss.Sakshi Sharma), for her exemplary
guidance, valuable feedback and constant encouragement throughout the duration of
the project. Her valuable suggestions were of immense help throughout my project
work. Her perceptive criticism kept me working to make this project in a much better
way. Working under her was an extremely knowledgeable experience for me.
I would also like to give my sincere gratitude to all the friends and colleagues who
helped me in this research work, without which this research would be incomplete.
In recent years, prison officials have increasingly turned to solitary confinement as
a way to manage difficult or dangerous prisoners. Many of the prisoners subjected
to isolation, which can extend for years, have serious mental illness, and the
conditions of solitary confinement can exacerbate their symptoms or provoke
recurrence. Prison rules for isolated prisoners, however, greatly restrict the nature
and quantity of mental health services that they can receive. In this article, we
describe the use of isolation (called segregation by prison officials) to confine
prisoners with serious mental illness, the psychological consequences of such
confinement, and the response of U.S. courts and human rights experts. We then
address the challenges and human rights responsibilities of physicians confronting
this prison practice. We conclude by urging professional organizations to adopt
formal positions against the prolonged isolation of prisoners with serious mental
Solitary confinement has been around for centuries. It is put in place for prisoners
who commit devastating crimes, put other people’s lives in danger, or protection
for oneself. Solitary confinement is an isolation of a prisoner usually for 23 hours a
day. Inmates are placed in these isolation units for many reasons; as punishment,
while they are under investigation, as a mechanism for behavior modification,
when suspected of gang involvement, or as retribution for political activism
(American). There are different names for solitary confinement that have been put
in place around the country. Solitary confinement of prisoners occurs under an
array of names; isolation, control units, super-max prisons, the hole, administrative
segregation, maximum security or permanent lockdown (American). These
individuals placed in solitary confinement have limited contact with other human
beings. Isolation is humane because of the fact it protects other prisoners, it
protects the prisoned person, and it provides justice. Some people believe the
United States should ban solitary confinement due to the inhumanity; however,
others feel the protection it provides is essential.
There is a rather large amount of discussion about how solitary
confinement is inhumane due to the mental instability it causes. These prisoners
are alone for 23-24 hours a day. They have no human contact besides with the
guards. The convicts usually commit horrible crimes, for example, murder. They
most likely have a mental illness to kill an individual, but living in solitary
confinement increases the possibility of a mental disorder.1 If the inmate does not
have a mental illness they are most likely going to suffer from one after long-term
separation. Extreme isolation has long been recognized as a punishment that
inflicts irreversible harm upon one’s mental status If solitary confinement is used
as a protection method for themselves or other prisoners, is it better off for their
Many prisons use solitary confinement as a mechanism to control their prison
populations and minimize the threat of danger to other inmates and prison staff.
Yet extreme isolation is an unnatural punishment and can cause severe
psychological, or sometimes even physical, damage.2 The effectiveness and
methods of solitary confinement has been debated since its modern day inception
as a form of punishment in the 1800s, yet it was not until recent years that states
began to question the constitutionality of the matter. As convicts, prisoners have
little sympathy from the general population; yet there are arguments for the release
of prisoners who are placed in solitary confinement for indefinite amounts of time
and for non-violent reasons. The argument in favor of regulating or eliminating the
age old method is that these people are being placed under “cruel and unusual”
circumstances, and are being released back into society in an even worse condition
than before they were incarcerated.3
There are two main types of solitary confinement that are primarily used in the
United States. Disciplinary solitary confinement is used to punish an inmate for a
violation of minor jail rules or protocol; administrative solitary confinement is used
to isolate dangerous prisoners from the rest of the prison population and staff.
Often prisoners who are placed in the latter group will remain in Supermax cells
for months to years, sometimes for an undetermined length of time.
Typically solitary confinement is reserved for the most threatening and
aggressive inmates, so the conditions are not cozy. Cells are typically “80 feet [10
by 8 feet], not much larger than a king-size bed,” and sometimes even smaller;
they do not have any windows and the floors are hard concrete. The door is
typically heavy metal and locks with massive bolts. Prisoners are isolated for 23
hours out of the day, and receive one hour of heavily monitored recreational
activity in another slightly larger cell. Meals are slid through a small space in the
door so prisoners remain completely isolated even during meal times.The cell is
left bare, so prisoners often resort to habitual pacing and sometimes create routines
to mimic life outside of prison. Prisoners may receive an early release from the
designated amount of time if they practice “good behavior” and attend classes to
HISTORYOF SOLITARY CONFINEMENT
Solitary Confinement is thought to have started in a Philadelphia jail in the 1800s.
The Quakers felt that by placing criminals in isolation they would have time to
read the Bible and repent for their sins. The original idea behind solitary
confinement was to reform inmates, as opposed to violently punishing them.
The Invention of Solitary Confinement — The Eastern State Penitentiary:
Another early prison that used a form of solitary confinement was the New York
jail, Auburn. There, the “Auburn System,” a method of punishment in which
prisoners were required to do manual labor all day in silence before being sent off
to solitary confinement for the remainder of the night, was developed. This system
gained popularity in prisons across the country. During this time, Auburn and other
prisons also used forms of torture as a punishment. One popular method was the
“shower bath.” This consisted of placing a prisoner under a constant flow of an
excessive and painful amount of water. The flood would beat them over the head,
getting into their eyes and mouths, nearly drowning them. Sometimes the shock
would cause prisoners to fall dead moments later.
SOLITARY CONFINEMENTIN INDIA
Solitary confinement is a form of imprisonment in which an inmate is isolated
from any human contact, with the exception of members of prison staff. In India,
maximum period of solitary confinement is 3 months and it shall not exceed 14
days at a time. Relevant provisions of solitary confinement are sections 73 and 74
of Indian Penal Code, 1860.4
Section 73. Solitary confinement
Whenever any person is convicted of an offence for which under this Code the
Court has power to sentence him to rigorous imprisonment, the Court may, by its
sentence, order that the offender shall be kept in solitary confinement for any
portion or portions of the imprisonment to which he is sentenced, not exceeding
three months in the whole, according to the following scale, that is to say—
a time not exceeding one month if the term of imprisonment shall not exceed six
a time not exceeding two months if the term of imprisonment shall exceed six
months and shall not exceed one year;
a time not exceeding three months if the term of imprisonment shall exceed one
Section 74. Limit of solitary confinement
In executing a sentence of solitary confinement, such confinement shall in no case
exceed fourteen days at a time, with intervals between the periods of solitary
confinement of not less duration than such periods: and when the imprisonment
awarded shall exceed three months, the solitary confinement shall not exceed
seven days in any one month of the whole imprisonment awarded, with intervals
between the periods of solitary confinement of not less duration than such periods.
India's death row prisoners face horrific conditions
Prisoners on death row in India are living in inhumane conditions, facing unfair
trials and horrific acts of police torture, according to a new study released by the
Death Penalty Research Project at the National Law University in Delhi.
The study is based on interviews with 373 of the 385 inmates believed to be on
death row in India and offers a harrowing insight into the unbearable uncertainty
the prisoners face and the horrific conditions they have to live in as they wait for
judges to decide their fate.5
Researchers said there was little reliable information about how the state handled
death row inmates, and found it difficult to discover the simplest of details,
including the exact number of people facing the death penalty.
Capital punishment has rarely been enforced in recent years and huge numbers of
death sentences are later commuted to life in prison, though many prisoners spend
years waiting for their fate to be decided. According to a report from the National
Crime Bureau, 1,303 death sentences were handed out between 2004 and 2013, of
which three led to executions. One man, Yakub Memon, convicted over his
involvement in the 1993 Mumbai bombings, was executed in 2015.
The study is a window into the lengthy, bureaucratic judicial process in India. It
shows that for those currently on death row, there was an average of five years
between arrest and sentencing.
Death sentences are handed down without consistency, forcing inmates into an
endless system of appeals, during which they often have little information about
the progress of the cases against them. Many are unable to meet their lawyers and
are not informed about the status of proceedings.
Torture, solitary confinement and “violent investigation techniques” are also
endemic and a host of social and economic factors can determine how a person is
treated in jail and the sentence they get. Three out of four death row inmates were
classed as “economically vulnerable” and 42% belonged to the “scheduled castes”,
considered to be lower down in the caste system.
Both judges and defence lawyers were blamed for the inadequacies of the
sentencing process. Researchers recorded various instances where defence lawyers
were not present during sentencing, conviction and sentencing were delivered on
the same day or judges failed to apply the “rarest of the rare” rule for death
At the final stage of proceedings, inmates can write to the president of India or the
Ministry of Home Affairs, who have the power to grant a pardon. As there is no
time limit for responses, prisoners waiting for their mercy pleas to be heard had
spent an average of 21 years and five months in jail.
Researchers recorded stories of prisoners who had committed suicide in jail, and
others who preferred an immediate execution rather than spending the remainder of
their lives waiting for a judgment in prison.
Chitrabhanu, who spent 20 years on death row, tried to make a noose from his
handkerchief in order to imagine how hanging might feel while he waited for a
pardon. A researcher recorded his desperation during that time. “How many years
can one live like this?” he said.
Mental health is flagged as a serious and under-researched issue in prisons, with
many facing violence and humiliation from fellow inmates. More than 100
prisoners spoke about sleep deprivation, many saying they could not sleep for more
than three or four hours a night because of the uncertainty of their fate.
Many prisons have in-house gallows – a remnant from colonial times – which are a
constant reminder of looming execution.
Inmates also often fear their imprisonment is a burden on their families and loved
ones, who have to bear the exorbitant costs of criminal lawyers.
The use of torture is ubiquitous, the report said. Inmates spoke about being hung
by wires, being forced to drink urine, being placed on a slab of ice and having a leg
broken, forced anal penetration, and extreme stretching. Some gave specific details
– being tied in a sack of chillies and beaten with the butts of police guns. Others
left it vague, simply saying “unexplainable things” had been done to them.
One inmate, Mayur, said he was forced by police to confess to killing a member of
his extended family, a crime he says he did not commit. He told researchers that he
was stripped naked and tied to a table while a snake was let loose in the room when
police called him in for questioning. His wounds were rubbed with lemon juice and
chilli. In chilling interview notes obtained by the Guardian, Mayur tells the
researchers: “Imagine what it is like to be an innocent and be here.”6
Reasons Solitary Confinement Is Unconstitutional
1. Solitary confinement violates the basic concept of human dignity.
"Researchers have concluded you shouldn't keep lab animals in this kind of solitary
confinement. Why should we treat people that way?" Lobel inquired.
In the Pelican Bay solitary unit, prisoners spend 22.5 to 24 hours a day in an 80-
square-foot, concrete, windowless cell - about the size of a king-size bed. They
can't make phone calls. And they're often denied visitors and physical activity. The
food is even sometimes rotten, Lobel wrote in the San Jose Mercury News .7
2. It denies basic human rights.
" We are social creatures and to take away that social nature from us deprives us of
a basic human need," Lobel said. "The courts have recognized that even if you're in
prison, you can't be deprived of basic human needs."
In this way, the punishment also violates the due process clause, according to
Lobel. "The Supreme Court has held that in this kind of confinement, you have to
give people periodic hearings which are meaningful," he told The Michael Slate
Show on KPFK Radio in Los Angeles.
Yet some of the prisoners, especially at Pelican Bay, have remained in their
singular cells for 10 or 20 years, Lobel alleges.
The Supreme Court has not ruled any specific length of time in solitary
unconstitutional. The high court, however, has ruled the " length of time cannot be
ignored " when deciding the constitutionality of specific circumstances.
3. It causes significant mental and physical pain and suffering.
Robert King, another speaker at the AAAS conference, spent 29 years in solitary
confinement in Louisiana. He noticed his vision drastically deteriorate during that
time. Prison doctors confirmed he entered solitary with 20/20 vision but eventually
needed glasses, King said.
"I could not make a face out six feet in front of me - even my brother or mother,"
King also has difficulty navigating his surroundings. "If I'm around one corner of
my house, by the time I get to the next corner, I'm lost. I'm embarrassed," he said.
Indeed, solitary confinement can cause prolonged depression, which can cause the
brain's hippocampus to shrink , University of Michigan neuroscience professor
Huda Akil said at the conference. The hippocampus helps us orient ourselves in
space and control our emotions.
"Think of your brain being similar to trees in spring with a lot of leaves and buds
.... Visually, you can look at scans and see winter in the brain. It gives new
meaning to the 'winter of our lives,'" Akil added.
Aside from depression, the lack of physical activity, social interaction, or natural
sunlight in solitary alone will harm a person, Craig Haney , a psychology professor
at the University of California Santa Cruz, said at the conference.
"Each one is sufficient enough to change the brain and change it dramatically,
whether it is brief or extended. And when I say extended, I mean days, not
decades," he said.
4. In many cases, it's unnecessary.
"Many people put in solitary are not dangerous at all and don't warrant this kind of
treatment," Lobel said. "Many of the prisoners at Pelican Bay haven't committed
For example, sometimes a simple tattoo will be taken as gang affiliation. Pelican
Bay also bans the African language Swahili , meaning you could get solitary for
having a Swahili pamphlet, according to Lobel.
While a judge recently refused to dismiss Lobel's proposed class action suit , he
still has to prove that solitary confinement is cruel and unusual as established by
previous case law .
In a landmark Eighth Amendment case from 1994, the Supreme Court found a
prison official can only be liable for denying inmates of humane conditions if he
knew an inmate faced high risks of harm but disregarded that risk.
Lobel also claims that solitary confinement violates International Law. The
Committee Against Torture , a project of the United Nations, to which the U.S.
belongs, has recommended countries abolish solitary confinement entirely because
of the potentially harmful mental and physical health effects.
The role of solitary confinement, and why it’s necessary
Some people question why inmates are allowed to have so much stuff. In an effort
to provide the public with an answer, I would first like to note that people tend to
be more motivated by a loss than by a gain.8
This holds true in how corrections deals with deviant behavior amongst those who
To have or have not
When we are looking to punish deviance, we remove an item of value from the
inmate (punishment by removal). This is done in the hopes that the inmate will
want what was taken from them and, in their effort to get back what was taken,
learn to comply with the rules and regulations of the institution.
Host Anthony Gangi and guest Russell Hamilton discuss the recent changes in
solitary confinement in California, along with best tips for conducting contraband
When an inmate gets a charge for not following the rules, their punishment can
consist of loss of recreational privileges, loss of contact visits, loss of commutation
time, loss of TV, etc. This loss is not taken lightly because the inmate has already
grown accustomed to what they have. When they are faced with the possibility of a
loss of something that was previously granted to them, they compare the situation
that they are in (having) to the situation that they could face (have not) and, with
that comparison in mind, they may choose to act accordingly.
Again, this is how correctional staff maintains their sense of authority. If inmates
were not granted anything, what would correctional staff have at their disposal that
would help them maintain control?
How this applies to segregation
Solitary confinement can be viewed as an extreme loss of granted items in which
all efforts to maintain control through normal procedures have failed. In order to
maintain safety, correctional staff now has to enter the extreme and start from
scratch by removing all granted items and having the inmate transition themselves
to a position where they can slowly regain what was taken. Again, from the outside
people may see this as barbaric, but this is a method that is used when all else fails.
It is still founded on our ability to maintain control and order by taking away what
was granted from inmates when their behavior becomes extreme and volatile.
Now, let's explore why this method works. As mentioned above, people are more
motivated by a loss than a gain. Reason being, when someone has an item, and it
has been removed, they have a concrete reference to compare what life would be
like without said item. On the flip side, with a gain, there is no concrete evidence
to compare, and, therefore, since the person has lived without, they can easily
continue to do so. So punishment by removal has been utilized by corrections as a
way to motivate compliance in a manner that is humane and decent.
There has been effort from the outside to circumvent this process by eliminating
certain methods that can be employed to punish deviance, which brings us back to
solitary confinement. Solitary confinement, in essence, is the removal of an inmate
from general population so control and order can be maintained.
Cruel and unusual punishment
People that argue against this process have a twisted understanding as to what
solitary confinement means. Solitary confinement is by definition a punishment by
removal. The inmate has been removed from general population along with all the
privileges they are granted, and placed into an area where said privileges have to
be earned back (transitional).
During this process, the mental and physical wellbeing of the inmate is constantly
monitored. This is an extreme measure that only gets employed when the safety
and security of others are at risk. During their time in solitary confinement, an
inmate, through good behavior, can earn some of their privileges back. This
process may take time, but is fundamental for the transitional process an inmate
must go through before being allowed back into general population.
For some, solitary confinement can be seen as strictly punishment, but for those in
the system, this method can be seen as corrective. In essence, solitary confinement
helps correctional staff transition those who are problematic back into general
population in a manner that maintains safety and security.
Tying our hands
For those who work in corrections, we need to maintain order in a world that wants
to be chaotic. The means with which we can employ are severely limited. When
we are attacked by those on the outside, who remain unaware of the world on the
inside, we begin to see our hands being tied.
Those in corrections try to justify their methods, but most choose not to hear what
those with the proper experience have to say. Over time, correctional staff has
discovered that the threat of loss has power.
In closing, before people decide on methods to eliminate, they must first
understand the perspective of which that method was derived. Then, once they get
an understanding of that perspective, they can either relate to why that method is
employed, or come up with an alternative that actually has value.9
In 2002, the Commission on Safety and Abuse in America, chaired by John Joseph
Gibbons and Nicholas Katzenbach found that: "The increasing use of high-security
segregation is counter-productive, often causing violence inside facilities and
contributing to recidivism after release."
Solitary confinement has been traditionally used as a behavioral reform of isolating
prisoners physically, emotionally and mentally in order to control and change
inmate behavior. Recently arrived inmates are more likely to violate prison rules
than their inmate counterparts and thus are more likely to be put in solitary
confinement. Additionally, individual attributes and environmental factors
combine to increase an inmate's likelihood of being put into solitary confinement.
Solitary confinement is considered to be a form of psychological torture with
measurable long-term physiological effects when the period of confinement is
longer than a few weeks or is continued indefinitely. According to a law review
article by Elizabeth Vasiliades, America's detention system is far below the basic
minimum standards for treatment of prisoners under international law and has
caused an international human rights concern: "U.S. solitary confinement practices
contravene international treaty law, violate established international norms, and do
not represent sound foreign policy."
The documented psychological effects led one judge in a 2001 suit to rule that
"Solitary confinement units are virtual incubators of psychoses—seeding illness in
otherwise healthy inmates and exacerbating illness in those already suffering from
mental infirmities." In fact, as of 2016, there have been thirty-five U.S. Supreme
Court cases petitioning solitary confinement.
In October 2011, UN Special Rapporteur on torture Juan E. Méndez, told the
General Assembly’s third committee, which deals with social, humanitarian, and
cultural affairs, that the practice could amount to torture.
“Considering 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,” he warned.
In November 2014. the United Nations Committee Against Torture noted that full
isolation for 22–23 hours a day in super-maximum security prisons is
Misuse of solitary confinement has been widely controversial. In immigration
detention centers, reports have surfaced concerning its use against detainees in
order to keep those knowledgeable about their rights away from other detainees. In
the prison-industrial complex itself, reports of solitary confinement as punishment
in work labor prisons have also summoned much criticism. One issue prison
reform activists have fought against is the use of Security Housing Units (extreme
forms of solitary confinement). They argue that they do not rehabilitate inmates but
rather serve only to cause inmates psychological harm. Further reports of placing
prisoners into solitary confinement based on sexual orientation, race and religion
have been an ongoing but very contentious subject in the last century.
Opponents of solitary confinement hold that it is a form of cruel and unusual
punishment and torture because the lack of human contact, and the sensory
deprivation that often go with solitary confinement, can have a severe negative
impact on a prisoner's mental state that may lead to certain mental illnesses such as
depression, permanent or semi-permanent changes to brain physiology, an
existential crisis, and death.
Access to health care
Research has shown that the routine features of prison can make huge demands on
limited coping resources. After prison many ex-convicts with mental illness do not
receive adequate treatment for their mental health issues, because health services
turn them away. This is caused by restrictive policies or lack of resources for
treating the formerly incarcerated individual. In a study focusing on women and
adolescent men, those who had health insurance, received mental health services,
or had a job were less likely to return to jail. However, very few of the 1,000
individuals in this study received support from mental health services.
Treating mentally ill patients by sentencing them into solitary confinement has
captured the attention of human rights experts who conclude that “solitary
confinement may amount to cruel, inhuman, or degrading treatment” that violates
rights specifically targeting cruel, inhuman treatment. Health care professionals
and organizations recognize the fact that solitary confinement is not ethical, yet the
segregating treatment fails to come to a halt. “Experience demonstrates that prisons
can operate safely and securely without putting inmates with mental illness in
typical conditions of segregation.” Despite this and medical professionals’
obligations, segregation policies have not changed because mental health clinics
believe that “isolation is necessary for security reasons.” In fact, many believe that
it is ethical for physicians to help those in confinement but that the physicians
should also be trying to stop the abuse. If they cannot do so they are expected to
undertake public advocacy.
The legality of solitary confinement has been frequently challenged over the past
sixty years as conceptions surrounding the practice have changed. Much of the
legal discussion concerning solitary confinement has centered on whether or not it
constitutes torture or cruel and unusual punishment. While international law has
generally begun to discourage solitary confinement’s use in penal institutions,
opponents of solitary confinement have been less successful at challenging it
within the United States legal system.
Throughout the twentieth century, the United Nations' stance on solitary
confinement has become increasingly oppositional. International law has reflected
this change, and UN monitoring has led to a major reduction of solitary
In 1949, the Universal Declaration of Human Rights (UDHR) was adopted by the
United Nations General Assembly. Although the Declaration is non-binding, the
basic human rights outlined within it have served as the foundation of customary
international law. The relevance of the Declaration to solitary confinement is found
in Article 5, which states that “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment." Thus, if solitary confinement is
believed to constitute torture or cruel, inhuman, or degrading treatment or
punishment, then the country practicing solitary confinement is violating the
provisions set by the UDHR.
The International Covenant on Civil and Political Rights (ICCPR), effective 1976,
reiterates the fifth article of the UDHR; Article 7 of the ICCPR identically states,
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment." Because the ICCPR is a legally binding agreement, any nation that
is signatory to the covenant would be violating international law if it practiced
torture or cruel, inhuman, or degrading treatment or punishment.
At the time that the UDHR and ICCPR were adopted, solitary confinement was not
yet believed to constitute torture or cruel, inhuman, or degrading treatment or
punishment. Its practice, therefore, was not believed to violate international law.
This changed, however, after the UN definition of torture was outlined in detail in
the 1984 Convention Against Torture (CAT); Article 1.1 of the CAT states that
torture is "any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person" for any reason such as obtaining information or
punishment, and Article 16 of the same convention prohibits "other acts of cruel,
inhuman or degrading treatment or punishment". Based on these provisions, many
members of the UN began to believe that solitary confinement’s detrimental
psychological effects could, indeed, constitute cruel, inhuman, or degrading
treatment or punishment, if not, torture. In the years following the CAT, UN
representatives "have publicly decried the use of solitary confinement as a
violation of the CAT and ICCPR," as well as the UDHR.
In more recent years, UN representatives have strengthened their efforts to stop
solitary confinement from being used worldwide. The urgency with which
representatives have undertaken these efforts is largely due to the UN Special
Rapporteurs on Torture, Manfred Nowak and Juan Méndez. Nowak and Méndez
have both "repeatedly unequivocally stated that prolonged solitary confinement is
cruel, inhuman or degrading treatment, and may amount to torture". Nowak and
Méndez have been especially critical of long-term or prolonged solitary
confinement, which they define as lasting fifteen days or more. Their authority and
explicit characterization of solitary confinement as cruel, inhuman, or degrading
treatment has led the UN to include long-term to indefinite solitary confinement in
the group of practices that violate the provisions outlined in the UDHR, ICCPR,
and CAT. Solitary confinement lasting for a short period of time, however, is
allowed under international law when used as a last resort, though Nowak,
Mendez, and many other UN representatives believe that the practice should be
United States law
In the U.S., opponents of solitary confinement have argued (with varying success)
that the practice violates prisoners’ Constitutional rights. Despite the long history
of litigation over the practice, the Supreme Court has yet to definitively state
whether or not solitary confinement is unconstitutional. The Supreme Court
considered the constitutionality of long-term solitary confinement only once in the
‘‘Wilkinson v. Austin'’ case. In contrast to the Supreme Court’s inaction, lower
courts of the U.S. have imposed constitutional limitations on the use of solitary
confinement. Despite such limitations, the federal courts have refused to find that
solitary confinement is per se unconstitutional. The U.S. has also effectively
“insulated itself from any official sanction for international violations by not
submitting to the jurisdiction” of committees that enforce the ICCPR or CAT.
Alternative litigation techniques
Recognizing that the amount of proof needed to show that solitary confinement
violates prisoners’ rights “is simply too high to trigger constitutional protections,”
attorneys have started to approach solitary confinement from a different angle.
John F. Cockrell, a recent graduate from the University of Alabama School of
Law, suggests that those who challenge solitary confinement do so in context of
the Americans with Disabilities Act of 1990 (ADA). Cockrell reasons that
When claims under the Eighth and Fourteenth Amendments fail, Title II [of the
ADA] may offer an avenue to improve the provision of services to the mentally ill
in prisons and solitary confinement, but ipso facto improving the conditions under
which all inmates in solitary confinement live.
In the past few years, several internal committees and administrative bodies
involved in the United States prison and legal systems have also begun to question
solitary confinement’s legality. In June 2012, for example, the US Senate Judiciary
Committee held its first hearing on solitary confinement. Likewise, as of 2013, the
US Bureau of Prisons has announced that it will conduct its first review of how
solitary confinement is used in federal prisons. Additionally, the US Department of
Justice found multiple violations of the Constitution and ADA after investigating
the use of solitary confinement for mentally ill inmates in two Pennsylvania
prisons. The US Immigration and Customs Enforcement Agency (ICE) has also
revised segregation procedures for detainees.
Mentally ill inmates and juveniles
Studies have illustrated that mentally ill inmates and juveniles are two groups more
severely affected by solitary confinement than other prisoners. As such, the solitary
confinement of mentally ill inmates and juveniles has been upheld as cruel and
unusual in both international and US courts.
The UN has “expressly prohibit[ed] solitary confinement of juveniles and
individuals with mental illness”. The Convention on the Rights of Persons with
Disabilities and Convention on the Rights of the Child have played major roles in
establishing the UN’s position on solitary confinement of mentally ill inmates and
Within the US legal system, too, courts have held that the solitary confinement of
the mentally ill is “cruel and unusual”. In fact, David Fathi, Director of the
ACLU’s National Prison Project, found that “every federal court that has
considered claims by severely mentally ill prisoners held in solitary confinement
has found this treatment unconstitutional”. These court rulings are significant in
light of the fact that more than half of the prisoners currently serving jail time in
the US are mentally ill according to the US Bureau of Prisons. Furthermore,
approximately 30% or more of prisoners in solitary confinement are mentally ill.
These rulings have the potential to dramatically change how prisons deal with
mentally ill inmates, as prison officials would no longer be able to “warehouse”
“difficult” prisoners if they have a preexisting mental illness. It should be noted,
however, that these rulings do not guarantee that the mentally ill will not be put in
solitary confinement; while they are considered a vulnerable group, these prisoners
still have “limited” recourse to the Eighth Amendment.
One landmark case, Madrid v. Gomez, challenged the conditions of the Security
Housing Unit (SHU) in the Pelican Bay State Prison. The court ruled that the
current conditions were not “per se violative of the Eighth Amendment” with
respect to all inmates. However, in regard to SHU’s isolation of the mentally ill
and the conditions of their solitary confinement, the court found that the prison had
violated the Eighth Amendment. Despite it being a landmark case, the rulings of
the case have yet to set a trend among cases against other prison systems because
SHU’s conditions were known to be more extreme and harsh than other supermax
Juveniles who are charged as adults and placed in adult prisons are usually put in
protective custody, and often the conditions of protective custody are similar to
those of solitary confinement. Juvenile justice experts, social scientists, and
national correctional standards all agree that solitary confinement is an “ineffective
therapeutic tool” that is detrimental to juveniles who are still in an “uncertain,
unformed state of social identity”. Given that they are developing mentally and
physically, some experts have suggested that “they are severely and permanently
damaged by such conditions to a greater extent than adults”.
The use of long-term solitary confinement, along with other grievances, has
triggered organized resistance from prisoners and advocacy groups in the United
States. Prisoners in California and elsewhere have launched hunger strikes, citing
cruel and unusual uses of solitary confinement as a major reason. Hundreds of
prisoners in the United States, acting through the Center for Human Rights and
Constitutional Law, have in 2012 filed a petition against solitary confinement at
the United Nations. The petition alleges that solitary confinement constitutes
torture and should be addressed by the international community.
The 2013 California prisoner hunger strike saw approximately 29,000 prisoners
protesting conditions. This statewide hunger strike reaching 2/3 of California’s
prisons began with the organizing of inmates at Pelican Bay State Prison. On 11
July 2011, prisoners at Pelican Bay State Prison began a hunger strike to “protest
torturous conditions in the Security Housing Unit (SHU) there”…and to advocate
for procedural and policy changes like the termination of the “debriefing process”
which forces prisoners “to name themselves or others as gang members as a
condition of access to food or release from isolation”. Nearly 7,000 inmates
throughout the California prison system stood in solidarity with these Pelican State
Bay prisoners in 2011 by also refusing their food. Also in solidarity with the 2011
Pelican Bay prisoners on strike is the Bay Area coalition of grassroots
organizations known as the Prisoner Hunger Strike Solidarity coalition. This
coalition has aided the prisoners in their strike by providing a legal support force
for their negotiations with the California Department of Corrections and
Rehabilitation (CDCR) and by creating and running a media based platform to
raise support and awareness for the strikers and their demands among the general
The CDCR's failure to meet the demands of the Pelican State Bay Prison hunger
strikers in 2011 resulted in the aforementioned 2013 California prisoner hunger
strike. Similar to the Pelican Bay State Prison hunger strike is the organizing of
January 2011 in the supermax Ohio State Penitentiary, where prisoners Bomani
Shakur, Siddique Abdullah Hasan, Jason Robb, and Namir Abdul Mateen began a
hunger strike “to protest what they call their harsh mistreatment under solitary
confinement”. These prisoners decided to start rejecting their meals until they
could be relocated from solitary confinement to death row where their treatment as
prisoners would improve. Another example took place in Fall of 2010, when
prisoners throughout Georgia’s prison system organized a strike in opposition to
violations of the US Constitution 8th amendment protection against cruel and
unusual punishment for minute infractions of rules. Inmates throughout the state, in
facilities like Rogers State Prison and Hays State Prison engaged in a “self-
imposed lockdown” to incite action from the Georgia Department of Corrections in
meeting their demands. Similar to other prison strikes demanding systemic change
in the policing and policies of prisons like the Pelican State Bay hunger strike, this
self-imposed lockdown strike has reached “across multiple facilities and across
racial and factional lines”.
Solitary confinement has served as a site of inspiration for protest-organizing
against its use in and outside of prisons and conversely, as a response tactic for
prisons to react to the protest-organizing of its prisoners. In March 2014,
authorities at the Northwest Detention Center in Washington relegated multiple
detainees to solitary confinement units after their participation in protests for the
improvement of conditions within the facility and in solidarity with activist
organizing against deportation escalations outside of the facility.
Organizing against the use of solitary confinement isn't limited to the work of
prisoners subject to or at risk for this treatment. Community organizing outside of
prisons has also occurred to shed light on the use of solitary confinement in prisons
and work towards its abolition or highly refined use. Free and accessible journals
like “Turning the Tide: Journal of Anti-Racist Action, Research, & Education” and
web-based projects like Solitary Watch and the Prisoner Hunger Strike Solidarity
Coalition website also work to disseminate information about the use of solitary
confinement in prisons and support actions to bring about the end of this practice
Dr. Eisenman, an Art History professor and activist, who is involved in many “stop
max” movements centered in Illinois, studies solitary confinement and explains its
eventual decline. Since the 1800s solitary confinement was practiced in the
penitentiary systems and its implementation and popularity at various prisons grew
throughout the centuries. The practice of solitary confinement grew partly because
of stigmatizing language used to refer to certain prisoners like ‘the worst of the
worst,’ which became a form of “self-justifying the logic of torture”. Yet, as the
use of solitary confinement progressed, public discourse around solitary
confinement transitioned from a legitimate form of punishment to torture. Because
many prisoners in solitary confinement suffered severe mental and physical
illnesses, Eisenman describes that by the end of the nineteenth century “prisoner
isolation and sensory deprivation were widely understood to be forms of torture”.
Therefore, human rights groups condemned the use of solitary confinement or
‘supermax’ systems, and national and local ‘stop max’ movements have initiated in
America and worldwide to stop the use of solitary confinement.
Alternatives and reform
Scrutiny of super-maximum security prisons and the institutionalization of solitary
confinement is accompanied by suggestions for alternative methods. One
alternative is to administer medical treatment for disorderly inmates who display
signs of mental illness. The Correction Department of New York City
implemented plans to transfer mentally ill inmates to an internal facility for further
help rather than solitary confinement in 2013. Dora B. Schriro, correction
commissioner, said that treatment would help turn a “one size fits all” policy into a
program to promote success in jail and the outside world. A second alternative is to
deal with long-term inmates by promoting familial and social relationships through
the encouragement of visitations which may help boost morale. Carl Kummerlowe
believes that familial counseling and support may be useful for inmates nearing the
end of a long-term sentence that may otherwise exhibit signs of aggression. This
alternative would help inmates cope with extreme long term sentences in prisons
such as those harbored in Pelican Bay. A third alternative would involve regular
reevaluation and accelerated transition of isolated inmates back to prison
population to help curb long-term effects of solitary confinement. These alternative
`methods suggest a more restorative justice approach to handling high-security
Many states such as Colorado, Mississippi, and Maine have implemented plans to
reduce use of supermax prisons and solitary confinement and have begun to show
signs of reform. Joseph Ponte, Corrections Commissioner of Maine, cut supermax
prison population by half. Colorado has announced reforms to limit the use of
solitary confinement in prisons following a study that showed significant levels of
confinement and isolation in prisons. Washington has also showed signs of
decreased use of solitary confinement, low segregation of overall prison
population, and emphasis on alternative methods.
There have been studies that have shown no difference between inmates in solitary
confinement and those in normal lockup. For example, "Effect of Solitary
Confinement on Prisoners" examines a study that compared twenty prison inmates
that were put into isolation to twenty inmates from general population that were
used as the controls. The subjects were tested immediately before and after being
put into isolation and the results showed that although there was a slight difference
in subjective feelings, there were no mental or psychomotor changes. "Effect of
Solitary Confinement on Prisoners" argues that the negative effects of solitary have
often been overemphasized and that the reason these negative findings are often
reported is due to the characteristic difference between those who end up in
solitary confinement and those who do not.
"Reactions and Attributes of Prisoners in Solitary Confinement," analyzes multiple
studies conducted at different prisons throughout the United States. There was no
difference found in the stress levels between the inmates inside of solitary
confinement and those in general lockup according to this study. Interviews were
conducted that showed that inmates had a fear of the mental effects that solitary
confinement would have, but that mental harm rarely occurred. There was also no
significant difference between the results of the Scale between the control and the
experimental group according to "Reactions and Attributes of Prisoners in Solitary
Confinement." This article proposes the idea that some inmates have inherent
characteristics that allow them to better adapt to solitary confinement while others
do not, similar to the ability to adapt to any new environment Furthermore, it
showed that the majority of inmates adapted to solitary confinement within a few
days finding ways to pass time such as sleeping, thinking about the future, and
exercising. This article argues that this study gives a better representation of the
effects of solitary confinement as it claims the participants are average inmates in
traditional solitary confinement conditions, rather than controlled experimental
conditions. The conclusions drawn from this study include the argument of
consistency; that in order to prove that solitary confinement is harmful to inmates,
there needs to be some sort of consistent negative result and their findings do not
Solitary confinement is a broken system that was determined to be ineffective and
harmful in the 1800’s and yet is still used today. It does not lower prisoner
aggression, in fact it seems to raise it. Solitary should be controlled, used less
frequently, and for shorter lengths of time. Combining this with using alternative
methods first, should be beneficial to the prison system and society as a whole. The
existing literature demonstrates that solitary confinement has both significant
physiological effects, such as gastrointestinal upset and hypertension, and
psychological effects, including psychosis and depression. These findings suggest
that the physiological and psychological consequences of solitary confinement are
extremely dangerous to the well being of inmates. However, research regarding
psychological effects is limited by the fact that many inmates are mentally ill prior
to incarceration, making it difficult to distinguish whether psychological symptoms
are directly produced by solitary confinement. In addition, there is definite need to
find alternative incarceration methods to effectively manage the behaviors of
inmates without causing harm to their physical and mental health. Developing new
incarceration methods is particularly important to ensure the well-being of
confined inmates who are mentally ill prior to incarceration. Isolation is humane
due to the fact it protects other prisoners, it protects the prisoned person, and it
provides justice. Some people believe the United States should ban solitary
confinement due to the inhumanity; however, others believe the protection it
provides is essential. Solitary confinement is a punishment; of course there is not a
free ride after murder or another crime. Criminals need to realize that there actions
have consequences and some privileges could be taken away. There is no working
out, socializing, or watching TV in solitary confinement. The time given to these
prisoners either saves their own life or another life. Solitary confinement is needed
for control in a prison; these inmates are convicts.
At a basic level, solitary is widely used because no one is compelling correctional
authorities to do anything different. In provincial and territorial systems where
independent oversight is limited, there is no incentive to change, particularly as
prison populations keep growing under tough-on-crime legislation. Federally, there
is no shortage of reports documenting the damage done by solitary and chronicling
the failure to act on the many recommendations for reining in the practice made by
task forces, commissions of inquiry and other independent bodies.
What we do not need are more correctional rules and policy around segregation.
As Justice Louise Arbour wrote in her 1996 inquiry report into unlawful uses of
force and prolonged segregation at the Prison for Women in Kingston, “the rule of
law is absent, although rules are everywhere.” The Globe and Mail’s investigation
indicates that correctional law and policy concerning segregation were breached in
Edward Snowshoe’s case, as they were in Ashley Smith’s.
What is needed then is independent external oversight and enforcement of existing
law and rights. An important first step would be for Canada to ratify the United
Nations Optional Protocol to the Convention Against Torture, which would require
Canada to have a “national preventative mechanism” to inspect all places of
detention to ensure compliance with international human-rights standards. This
would provide a measure of accountability and information to the public about the
use of solitary confinement and other practices that have human-rights
implications. Britain’s Prison Inspectorate performs such a function and Canada’s
failure to take this step is troubling.
But beyond transparency and accountability, Canadians are entitled to expect that
the rule of law will run behind prison walls. At a minimum, segregation decisions
should be subject to independent adjudication.
In the absence of political or institutional will to address this, change may come
from the courts. No Canadian court has yet heard a systemic Charter challenge to
the normalized use of solitary in the light of the substantial evidence of its negative
effects. However, recent cases signal change. Judges in British Columbia and the
Northwest Territories have found that the prolonged segregation and other
inhumane conditions of confinement experienced by prisoners awaiting trial
amounted to cruel and unusual punishment. In one case, the man’s ultimate
sentence was substantially reduced to account for the Charter violation.
Correctional authorities have settled other cases, including one challenging a
regime of segregation specific to women prisoners that had a particularly negative
impact on indigenous women.
Rather than waiting for courts to step in, correctional authorities can act on the
many recommendations already made, including (to take just one) finding
alternatives to segregating mentally ill prisoners.
This human-rights crisis behind prison walls implicates us all, as does the broader
problem of which it is a symptom: packed, warehouse prisons that result from
punitive policies implemented in the face of evidence of what works to address
crime. Hopefully it will not take the death of another Edward Snowshoe for us to
begin to reverse this trend. Solitary confinement can actually fit the definition of
torture, as stated in some international human rights treaties. This means that it
constitutes a violation to human rights.