Abstract
In its 2016 annual review, the Association of State Correctional Administrators (ASCA) reported at least 67,000 prisoners held in a form of restrictive housing. Noting that this figure excludes most local jails across the US, and that many states do not hold or publish such data, ASCA’s estimate can be placed at the lower end. Approximations drawn by a federal commission on prison safety placed the figure nearer to 81,000. Another, a collaboration between ASCA and Yale Law School, topped 100,000. Reasons for those vast discrepancies are twofold. First, euphemisms abound. North Carolina’s ‘modified detainee walk schedule’—where prisoners may only leave their cells for up to one hour per day—was not classified as solitary confinement by prison administrators or the state government. The mislabelling of this procedure, solitary confinement by any other name, is a clear warning signal for the types of obscure euphemisms adopted by prison officials. For analysis of this form of extreme punishment, the demonstrated obscurity presents an immediate challenge. Second, quantifying totals is exceptionally difficult due to opaque data collection practices and policies. The instance outlined above, for example, would not have been included in nationwide counts, despite over 500 prisoners being held in solitude for long periods of time. Additionally, lack of resources—or simply apathy—means that prison conditions are often not published, or even recorded. Keeping track of the tens of thousands of prisoners in exceptionally harsh conditions has become a mammoth task.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
John Gibbons and Nicholas Katzenbach, Confronting Confinement (Commission on Safety and Abuse in America’s Prisons 2006) 52–53, 56.
- 2.
Sarah Baumgartel, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon Porter, and Judith Resnik, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (Yale Law School 2005).
- 3.
Mark Schultz, ‘Durham sheriff acknowledges inmate confinement’ (The News & Observer: Durham News, 17 April 2015) https://tinyurl.com/newsobserver172015, accessed 27 January 2017.
- 4.
Zafir Shaiq, ‘More Restrictive Than Necessary’ (2013) 10 Hastings Race and Poverty Law Journal 327, 340.
- 5.
Chase Riveland, Supermax Prisons (US Department of Justice 1999) 6, emphasis removed.
- 6.
Jonathan Simon, Mass Incarceration on Trial (The New Press 2014) 113–114.
- 7.
Jonathan Simon, in Haas Institute, We Too Belong: Resource Guide of Inclusive Practices in Immigration and Incarceration Law & Policy (Haas Institute 2016) 72.
- 8.
Sharon Shalev, Supermax (Willan 2009) 9.
- 9.
Pretrial solitary confinement has been scoped out of this study, with a view to focusing on solitary as punishment, but it is noted as deserving further analysis in future work. A current assessment of this separate issue can be found in Peter Scharff Smith, ‘The Effects of Solitary Confinement on Prison Inmates’ (2006) 34 Crime and Justice 441, 445.
- 10.
Atul Gawande, (New Yorker, 30 March 2009) http://www.newyorker.com/magazine/2009/03/30/hellhole, accessed 16 March 2017.
- 11.
Richard Perry, (New York Times, 14 July 2014) ‘Rikers: Where Mental Illness Meets Brutality in Jail’ http://www.nytimes.com/2014/07/14/nyregion/rikers-study-finds-prisoners-injured-by-employees.html, accessed 16 March 2017.
- 12.
Arizona, California, Colorado, Indiana, Michigan, Nebraska, New Mexico, New York, Ohio, and Wisconsin undertook reforms of SHU in their state facilities during 2014. Texas and New Jersey have pending executive reviews or legislative considerations.
- 13.
The 2016 presidential election gave little promise to liberal reformers of the federal prison system.
- 14.
George Kurian, World Encyclopedia of Police Forces and Correctional Systems (Gale 2006) 77.
- 15.
Penn debarked at Philadelphia in 1682 and pursued his idea of a ‘civic utopia’, including his mild penal code. Jack Marietta and G Rowe, Troubled Experiment (University of Pennsylvania Press 2006) 263. In fact, as Marietta and Rowe demonstrate, this led to much higher crime levels than prior to Penn’s reforms.
- 16.
Act 9 Geo I c22 (1723).
- 17.
John Hostettler, The Politics of Punishment (Barry Rose 1992) 96.
- 18.
ASSI 5/70/1 National Archives HO 26/1 (obtained 8 February 2014).
- 19.
Act 25 Geo II c37 (1751).
- 20.
134 US 160 (1890) 170.
- 21.
Act 6 & 7 Wm IV c30 (1836).
- 22.
Declaration of Independence (1776). See also David McCullough, 1776 (Simon & Schuster 2005) and, specifically in relation to the 1337 words that changed America—Danielle Allen, Our Declaration (Liveright 2014).
- 23.
Cesare Beccaria , On Crimes and Punishments (1764) (Richard Bellamy (ed) CUP 1995) 10 (punishment must be necessary); ibid., 63 (and lenient). Beccaria significantly influenced the work of Voltaire, who was in frequent contact with Franklin and Rush. Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform (Temple UP 1973) 18–19.
- 24.
Rex Skidmore, ‘Penological Pioneering in the Walnut Street Jail, 1789–1799’ (1948) 39 Journal of Criminal Law and Criminology 167, 168 (describing the state statutory basis of 1773 for Walnut Street), 169 (details of the cell).
- 25.
Ian O’Donnell, Prisoners, Solitude, and Time (OUP 2014) 39.
- 26.
Francis Gray, Prison Discipline in America (John Murray 1848) 37.
- 27.
Dickens described the conditions upon his visit to ESP as ‘cruel and wrong’ (Charles Dickens, American Notes (1842) (Penguin Classics edn, 2000) 111); Hans Christian Andersen, In Sweden (1851) (Asad Razzaki ebook edn, 2004) Chapter 6 (describing his visit to a Swedish prison based on the Pennsylvania model: ‘by solitary confinement, in continual silence, the criminal is to be punished and amended; […] It is as though no one lived there or it was an abandoned house in time of plague. […] The whole is a well-built machine—a nightmare for the spirit.’)
- 28.
Jeremy Bentham , Panopticon (1787) (Miran Božovič ed, 1995).
- 29.
Lawrence Friedman, Crime and Punishment in American History (Basic Books 1993) 77.
- 30.
O’Donnell (n 25) 17.
- 31.
James Jacobs, Stateville (UCP 1977) 26, 28.
- 32.
Laurence Gonzales, ‘The New Alcatraz’ Chicago Magazine (February 1986); Steven Whitman, ‘The Marion Penitentiary—It should be Opened Up, Not Locked Down’ Southern Illinoisan (7 August 1988); numerous publications available at Committee to End the Marion Lockdown (CEML), ‘From Alcatraz to Marion to Florence—Control Unit Prisons in the United States’ http://people.umass.edu/~kastor/ceml_articles/cu_in_us.html, accessed 29 January 2017.
- 33.
Ibid., 57–59; Michelle Alexander, The New Jim Crow (The New Press 2012).
- 34.
Sheldon Messinger, ‘Troubling Questions’ (1983) 81 Michigan Law Review 1176.
- 35.
Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy (Pantheon 2016) 585 fn8.
- 36.
Robert Case, ‘We Are Not Slaves’ (2015) 102 Journal of American History 73, 74.
- 37.
Simon, Mass Incarceration on Trial (n 6) 6.
- 38.
Thompson (n 35) 125. Point 27 (of 33 negotiation demands) was to end solitary confinement in the prison entirely: this request was ignored. Point 32 was to shorten solitary stays to 30 days. While this was agreed to in principle by the commissioner, the conversation broke down after amnesty was not guaranteed following the death of a guard.
- 39.
Attica Revisited, ‘The McKay Commission’ http://www.talkinghistory.org/attica/mckay.html, accessed 19 March 2017.
- 40.
In addition to the excellent work by Thompson outlined in previous footnotes, it is also worth mentioning that wrongful convictions continue today. The late Justice Scalia once indicated that a wrongful death sentence would change the story with respect to the capital punishment problem—Clive Stafford Smith has shown that this is very much the reality. See, for example, Clive Stafford Smith, Injustice: Life and Death in the Courtrooms of America (Harvill Secker 2012).
- 41.
Weapons were placed in the hands of deceased prisoners; falsified evidence was given throughout the trials; and a general discourse of blame was levied towards the inmates, including those who had been unlawfully killed. In 2017, it has become vogue to speak of “post-truth politics” or “alternative facts”. These innuendos connote nothing more than sugarcoated wilful dishonesty, and are not new. If the experiences of post-Attica criminal justice are repeated by the discourse echoed in the US of 2016 and 2017, the national incarceration (or correctional control) rate will likely creep towards 1% in the next decade, and barbaric punishments not yet outright rejected by the judiciary (such as public hangings) are bound to return. Writing such as that contained within these pages is perhaps the only remaining refuge when others find the truth inconvenient.
- 42.
Thompson (n 35) 198.
- 43.
Robert Martinson, ‘What works? Questions and answers about prison reform’ (1974) 35 The Public Interest 22.
- 44.
Kurian (n 14) 85.
- 45.
The number of prisoners increased from 300,000 in 1978 to 2,300,000 in 2012, such that a country with 5% of the world’s resident population now has around 25% of its prisoners.
- 46.
Doris James and Lauren Glaze, ‘Mental Health Problems of Prison and Jail Inmates’ Bureau of Justice Statistics Special Report (September 2006) 1 (reporting percentages of inmates with ‘any mental problem’ in state prison as 56%).
- 47.
Jessica Mitford, Kind and Usual Punishment (Vintage Books 1973) 199.
- 48.
US v Silverstein 732 F2d 1338 (7th Cir 1984).
- 49.
O’Donnell (n 25) 150.
- 50.
David Ward and Allen Breed, Consultants’ Report on the United States Penitentiary, Marion, Illinois, (Committee on the Judiciary, US House of Representatives) Serial No 26 (1985).
- 51.
Silverstein v FBP 559 Fed Appx 739 (10th Cir 2014).
- 52.
O’Donnell (n 25) 156.
- 53.
Shalev (n 8) 101, citing the 1984 approval by the US National Institute of Corrections and the American Justice Association of the pod design.
- 54.
Loïc Waquant, ‘Foreword: Probing the Meta-Prison’ in Jeffrey Ross (ed) The Globalization of Supermax Prisons (Rutgers UP 2013) xiii (original emphasis).
- 55.
James Madison, The Federalist (Terence Ball ed, CUP 2003) No 47, 241.
- 56.
Michael Goldman, ‘Sandin v. Conner and Intraprison Confinement’ (2004) 45 Boston College Law Review 423, 427.
- 57.
John Fliter, Prisoners’ Rights (Greenwood 2000) 45.
- 58.
In Stroud v Swope 187 F2d 850 (9th Cir 1951) 851–852 the Ninth Circuit (federal) court of appeals described the doctrine thus: ‘it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.’
- 59.
14 Stat 385 (39th Cong) (1867).
- 60.
US Const, Amend XIV, Section 1: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States [and shall have access to] the equal protection of the laws.’
- 61.
William Wiecek, ‘The Great Writ and Reconstruction’ (1970) 36 The Journal of Southern History 530, 532 (discussing the expansion of the writ of habeas and the importance of the 1867 Act).
- 62.
144 US 323 (1898).
- 63.
US Const, Amend XIV, Section 1.
- 64.
Fliter (n 57) 56.
- 65.
217 US 349 (1910) 378.
- 66.
Yates v US 354 US 298 (1957) (developing the “clear and present danger” test for speech which was not protected by the First Amendment, expanding this area); Gomillion v Lightfoot 364 US 339 (1960) (beginning the decades-long battle against voting-boundary malapportionment and Fifteenth Amendment protection); Mapp v Ohio 367 US 643 (1961) (increasing defendants’ rights under the Fourth Amendment, holding evidence obtained in violation thereof inadmissible).
- 67.
Wilbur Miller (ed) The Social History of Crime and Punishment in America (SAGE 2012) 1418–1420.
- 68.
365 US 167 (1961).
- 69.
42 USC §1983.
- 70.
60 Stat 812 (1946), 28 USC §1346(b).
- 71.
US v Muniz 374 US 150 (1963).
- 72.
378 US 546 (1964).
- 73.
Mempa v Rhay 389 US 128 (1967).
- 74.
Lee v Washington 390 US 333 (1968).
- 75.
Johnson v Avery 393 US 483 (1969).
- 76.
Strauss notes that these criticisms typically take ‘the form of condemning “judicial activism of the left or the right,” with the Warren Court (or “Warrenism”) seen as an example of the former’. David Strauss, ‘The Common Law Genius of the Warren Court’ (2007) 49 W&Mary Law Review 845, 846.
- 77.
Julius Chambers, ‘Race and Equality’ in Bernard Schwartz (ed) The Warren Court (OUP 1996) 45.
- 78.
Fliter (n 57) 94.
- 79.
404 US 15 (1971).
- 80.
405 US 319 (1972) 321.
- 81.
408 US 238 (1972).
- 82.
418 US 539 (1974) 555–556.
- 83.
Examples include Baxter v Palmigiano 425 US 308 (1976) (restricting the right to counsel and cross-examination in prison hearings, and removing the Fifth Amendment right to non-self-incrimination in similar circumstances); Meachum v Fano 427 US 215 (1976) (restricting liberty interests in prison).
- 84.
428 US 153 (1976).
- 85.
429 US 97 (1976).
- 86.
Ibid., 103 (quoting In Re Kemmler 136 US 436 (1890) 447).
- 87.
Ibid., 104 (quoting Gregg (n 84) 173).
- 88.
Elizabeth Bennion, ‘Banning the Bing’ (2015) 90 Indiana Law Journal 741, 774–775.
- 89.
Sharon Dolovich, ‘Cruelty, Prison Conditions, and the Eighth Amendment’ (2009) 84 NYU Law Review 881, 960.
- 90.
Estelle (n 85) 358, 366.
- 91.
Hudson v Palmer 468 US 517 (1984) (no reasonable expectation of privacy in cells); Block v Rutherford 468 US 576 (1984) (no constitutional right to prison visits); Whitley v Albers 475 US 312 (1986) (“deliberate indifference” standard applies when emergency treatment is not provided).
- 92.
441 US 520 (1979).
- 93.
452 US 337 (1981).
- 94.
Ibid., 349.
- 95.
Turner v Safley 482 US 78 (1987) (significantly limiting First Amendment rights); Teague v Lane 489 US 288 (1989) (narrowing the scope of federal court review of habeas).
- 96.
501 US 294 (1991).
- 97.
503 US 1 (1991). Clarified by Helling v McKinney 509 US 25 (1993) (an unreasonable risk of harm could trigger Eighth Amendment protection).
- 98.
511 US 825 (1994).
- 99.
42 USC § 1997e (1995). See William Newman and Charles Scott, ‘ Brown v. Plata’ (2012) 40 Journal of the American Academy of Psychiatry and the Law 547.
- 100.
Case (n 36) 84.
- 101.
Margot Schlanger, (Alliance for Justice, 25 February 2015) ‘The declining prison litigation docket’ http://www.afj.org/blog/the-declining-prison-litigation-docket, accessed 19 March 2017.
- 102.
Mass incarceration is an issue which this book addresses. For an overview, see Jonathan Simon, ‘Mass Incarceration’ in Joan Petersilia and Kevin Reitz (eds) The Oxford Handbook of Sentencing and Corrections (OUP 2012) 23.
- 103.
Kemmler (n 86) 447.
- 104.
134 US 160 (1890) 172.
- 105.
131 S Ct 1910 (2011).
- 106.
Coleman v Schwarzenegger; Plata v Schwarzenegger (Nos Civ S-90-0520; C01-1351) (ED CA; ND CA 2009) (three-judge court).
- 107.
Plata (n 105) 1928.
- 108.
Ibid., 1925 fn3.
- 109.
See Leon Neyfakh, (Slate, 18 March 2015) ‘Are Overcrowded Prisons Unconstitutional?’ http://bit.ly/1xmCj9d, accessed 20 March 2017.
- 110.
Simon (n 6) 152.
- 111.
Trop v Dulles 356 US 86 (1958) 102.
- 112.
Robinson v California 370 US 660 (1962) 678.
- 113.
Erin Simmons, ‘Challenging an Execution after Prolonged Confinement on Death Row [Lackey Revisited]’ (2009) 59 Case Western Reserve Law Review 1249; E Carson and William Sabol, Prisoners in 2011 (Bureau of Justice Statistics 2012).
- 114.
Angela April Sun, ‘“Killing Time” in the Valley of the Shadow of Death’ (2013) 113 Columbia Law Review 1585, 1614.
- 115.
Lackey v Texas 514 US 1045 (1995) cert denied was the first claim against inordinate delays, and the justices have continually rejected every such claim since.
- 116.
Bruce Arrigo and Jennifer Bullock, ‘The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units’ (2008) 52 International Journal of Offender Therapy and Comparative Criminology 622, 626.
- 117.
28 CFR §541.20 ‘Guide to Segregation in Federal Prisons’ www.washlaw.org/pdf/Guide_to_Segregation_in_Federal_Prisons.pdf, accessed 21 March 2017.
- 118.
Pretrial sentencing is outside of the remit of the Eighth Amendment, as it is not punishment.
- 119.
ACLU, A Death Before Dying (ACLU 2013) 5.
- 120.
Some cells were narrower, while others were square. The vast majority (82%) were larger than 60 square feet. Ibid.
- 121.
Shalev (n 8) 103.
- 122.
See Harrison v Indiana DOC Case 1:08-cv-01317-TWP-MJD (SD Ind 2012) (noting that television sets are initially restricted for 90 days or totally prohibited).
- 123.
Kate King, Benjamin Steiner and Stephanie Breach, ‘Violence in the Supermax’ (2008) 88 The Prison Journal 144, 148: ‘Before leaving his cell, an inmate is placed in handcuffs attached by officers through the food slot […] exiting the cell, the handcuffs are attached to a belly chain, and both ankles are hobble-chained.’
- 124.
Sasha Abramsky and Jamie Fellner, Ill-Equipped (Human Rights Watch 2003) 17.
- 125.
American Psychiatric Association, Psychiatric Services in Jails and Prisons (2nd edn, APA 2000) xix.
- 126.
Lisa Guenther, Solitary Confinement: Social Death and Its Afterlives (University of Minnesota Press 2013) xi.
- 127.
Scharff Smith (n 9) 488.
- 128.
Terry Kupers, Prison Madness (Wiley 1999) 56.
- 129.
Stuart Grassian , ‘Psychiatric Effects of Solitary Confinement’ (2006) 22 Washington University Journal of Law & Policy 325, 338.
- 130.
Stuart Grassian and Nancy Friedman, ‘Effects of sensory deprivation in psychiatric seclusion and solitary confinement’ (1986) 8 International Journal of Law and Psychiatry 49.
- 131.
Grassian (n 129) 354.
- 132.
George Scott and Paul Gendreau, ‘Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison’ (1969) 14 Canadian Psychiatric Association Journal 337, 338.
- 133.
Kelsey Kaufman, Prisoner Officers and Their World (HUP 1988) 232.
- 134.
Plata (n 105) 1925 fn3.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2017 The Author(s)
About this chapter
Cite this chapter
Eastaugh, C. (2017). The Hidden Corner of the Prison. In: Unconstitutional Solitude. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-61735-0_1
Download citation
DOI: https://doi.org/10.1007/978-3-319-61735-0_1
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-319-61734-3
Online ISBN: 978-3-319-61735-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)