CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, September 17, 2015

Baumgartel et al. on Administrative Separation in Prison

Sarah Baumgartel Corey Guilmette Johanna Kalb Diana Li Josh Nuni Devon E. Porter andJudith Resnik (Yale Law School , Yale University, Law School, Students , Loyola University New Orleans College of Law , Yale Law School , Yale University, Law School, Students , Yale Law School and Yale University - Law School) has posted Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison on SSRN. Here is the abstract:

Prolonged isolation of individuals in jails and prisons is a grave problem drawing national attention and concern. Commitments to lessen the numbers of people in isolated settings and to reduce the degrees of isolation have emerged from across the political spectrum. Legislators, judges, and directors of correctional systems at both state and federal levels, joined by a host of private sector voices, have called for change. In many jurisdictions, prison directors are revising their policies to limit the use of restricted housing and the deprivations it entails. 

Although a few in-depth reports and litigation have provided detailed accounts of specific systems, relatively little nationwide information exists about the number of people held in restrictive housing, the policies determining their placement, how isolated the settings are, and whether the rules governing social contact, activities, and length of stay vary from place to place. 

Therefore, in 2012, the Liman Program at Yale Law School joined with the Association of State Correctional Administrators (ASCA), which is the national organization of the directors of all the U.S. prison systems, to gather information. We asked the directors of state and federal corrections systems to provide their policies governing administrative segregation, defined as removing a prisoner from general population to spend 22 to 23 hours a day in a cell for 30 days or more. The result, Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (2013), based on responses from 47 jurisdictions, analyzed the criteria for placement in and release from administrative segregation. 

What we learned is that the criteria for entry were broad, as was the discretion accorded correctional officials when making individual decisions about placement. Many jurisdictions provided very general reasons for moving a prisoner into segregation, such as that the prisoner posed “a threat” to institutional safety or a danger to “self, staff, or other inmates.” Some but not all jurisdictions provided notice to the prisoner of the grounds for the placement and an opportunity for a hearing. The kind of notice and what constituted a “hearing” varied substantially. In short, at the formal level, getting into segregation was relatively easy, and few policies focused on how people got out. 

In 2014, to understand the impact of these policies, the Liman Program and ASCA developed a survey of more than 130 questions, again sent to the directors of all the prison systems. Responses came from 46 jurisdictions, although not all jurisdictions answered all the questions. The result is this report, providing a unique inter-jurisdictional analysis of the use of administrative segregation around the United States. 

A basic question is the number of prisoners in isolation. Commentators have relied on estimates dating back ten years or more; the figures cited range from 25,000 to 80,000 prisoners. This Report is the first to update those figures; thirty-four jurisdictions, housing about 73% of the 1.5 million people incarcerated in U.S. prisons, provided numbers, totaling more than 66,000 prisoners in some form of restricted housing — whether termed “administrative segregation,” “disciplinary segregation,” or “protective custody.” If that number is illustrative of the whole, some 80,000 to 100,000 people were, in 2014, in segregation. And none of the numbers include people in local jails, juvenile facilities, or in military and immigration detention. 

Having current information is one contribution of this Report. So is the documentation of the commitments of correctional officials, nationwide, to reduce these numbers dramatically. Thus, directors of prison systems believe that these numbers are “wrong” in the sense that they are or will soon be out-of-date, based on their plans to cut back on the use of isolation and to change the conditions in it. 

This Report focused on a subset of people in restricted housing — the 31,500 male prisoners held in administrative segregation. In terms of the demographics, 21 jurisdictions provided comparative information on general population and the administrative segregation population and, in those systems, Blacks and Hispanics were over-represented in administrative segregation. As for living conditions, the cells were small, ranging from 45 to 128 square feet, sometimes for two people. In many places, prisoners spent 23 hours in their cells on weekdays and 48 hours straight on weekends. 

Opportunities for social contact, such as out-of-cell time for exercise, visits, and programs, were limited; the time out-of-cell ranged from 3 to 7 hours a week in many jurisdictions. Phone calls and social visits were as few as one per month in several jurisdictions; in others, more opportunities existed. In virtually all jurisdictions, what the prisoners could keep in their cells, as well as their access to programs and to social contact, could be limited as sanctions for misbehavior. 

Moreover, in most jurisdictions, administrative segregation had no fixed endpoint. (One state imposed a twelve-month limit.) Further, while several systems did not keep track of the numbers of continuous days that a person remained in isolation, in the 24 jurisdictions that reported on that information, the time varied widely. In a substantial number, people remained in segregation for more than 3 years. Turning to the question of release, in 30 jurisdictions tracking the numbers in 2013, a total of 4,400 prisoners went from administrative segregation directly to the community. 

The running of administrative segregation units poses many challenges for prison systems. Some jurisdictions required staff to have additional training and offered flexible schedules, rotations, or provided extra benefits for the assignment. These issues were part of the incentives to make changes; in addition, many directors cited prisoner and staff well-being, pending lawsuits challenging their policies, and the costs. A few directors added that change was important because it “is the right thing to do.” 

As noted, administrative segregation is not the only form of restrictive housing. Prisoners are also held in close confinement as a disciplinary sanction and for their own protection, neither of which were the focus of this research. Thus, the Report offers a window into the practices of one kind of close confinement and a template for learning about whether the different rationales for restricted housing result in different modes of confinement. 

By facilitating cross-jurisdictional comparisons of the rules and practices that surround administrative segregation, this Report both reflects and supports ongoing efforts to understand its impact, reevaluate its use, and limit or end extended isolation. In some states, new legislation limits administrative segregation for subpopulations, such as the mentally ill, juveniles, and individuals with disabilities; many more proposals are pending at the state and national level. New programs for the mentally ill are mandating that prisoners spend 20 hours a week out of their cells. Lawsuits are attacking particular practices in specific states, and some advocates call for abolition. The 2015 “Mandela Rules,” shaped with input from leaders of corrections in the United States and promulgated by the Committee on Crime Prevention and Criminal Justice of the United Nations, have defined confinement of prisoners for 22 hours or more for longer than 15 days to be a form of “cruel, inhuman or degrading treatment.” 

Calls for significant reductions in the use of isolation come from all quarters and, importantly, from the chief operating officers of prison systems. But without a baseline, it is not possible to know the impact of the many efforts underway to reduce or eliminate the isolation of prisoners and to enable prisoners and staff to live and work in safe environments, respectful of human dignity. Time-in-Cell provides one measure, to use as a baseline to assess whether the changes hoped for are taking place, such that the number of persons held in such settings and the degrees of their isolation are substantially diminishing.

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