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David Stuart is founder and supervisor of the Incarcerated Survivors’ Initiative at the law firm Cravath, Swaine & Moore. He wrote this for the Chicago Tribune.
A Yale Law School report estimates that in 2021, 41,000 to 48,000 incarcerated people in the United States were isolated in cells the size of a compact parking space for 22 or more hours each day for two weeks or more. That is a minimum of 330 hours of isolation with one- or two-hour breaks each day.
In Texas, more than 500 people have served more than 10 years in solitary confinement, and an extraordinary 138 have served more than 20 years in isolation. That is torture.
More than a decade ago, United Nations Special Rapporteur on Torture Juan Méndez called on all countries to ban the solitary confinement of prisoners except in very exceptional circumstances and for as short a time as possible, with an absolute prohibition in the case of juveniles and people with mental disabilities.
Méndez further recommended that indefinite and prolonged solitary confinement in excess of 15 days be prohibited, as scientific studies have shown that lasting mental damage is caused after just a few days of isolation.
Accordingly, in 2015, the United Nations adopted the “Nelson Mandela Rules” for the treatment of prisoners, which prohibit solitary confinement except in exceptional cases, for as short a time as possible and subject to independent review and only pursuant to authorization by a competent authority.
Notwithstanding our evolved view on solitary confinement, a U.S. Department of Justice report released on Feb. 1 showed that the number of federal prisoners in restrictive housing has increased by 14.5 percent since 2015.
Citing the overuse of solitary confinement and the irreparable harm it causes, in September, Illinois U.S. Sen. Dick Durbin reintroduced the Solitary Confinement Reform Act. Among its most potent provisions, the bill would limit the use of solitary confinement to the briefest possible term and under the least restrictive conditions achievable. It also would limit the use of solitary confinement for certain people, including pregnant women and individuals with a mental illness. Durbin’s bill, however, does not provide a mechanism for independent review by a competent authority.
Corrections officials will legitimately argue that solitary confinement is necessary to maintain a safe and healthy environment for the prison population — including the prison staff — which may be threatened by violent aggressors, gangs and drug dealers who need to be separated from the general population to protect an otherwise obedient community. They will also argue that certain individuals need to be isolated and put under close observation to prevent them from harming themselves.
Finally, officials may assert that they are in the best position to make immediate decisions about who needs to be isolated and for how long because they have the best information and judgment about the needs of the facility, its staff and its incarcerated individuals.
These arguments have weight. They do not deny, however, that independent judicial oversight is required when solitary confinement has or will continue for an extended period. Given the irreparable harm to the incarcerated person and the inability of the corrections staff to exercise independent judgment over who should be isolated and for how long, Durbin’s bill should include a provision that requires an emergency judicial hearing when solitary confinement has or is contemplated to last longer than one week.
Sure, incarcerated individuals have the ability to seek relief under our civil rights laws after an unduly long period of solitary confinement, but by then, the damage is done. The time to address the potential harm is before it occurs.
Durbin should add to his bill a mechanism for a judicial hearing for solitary confinement lasting longer than one week.
