Death Before Dying

United States Falls Far Behind New Standard Minimum Rules for the Treatment of Prisoners

by

Prof. Hope Metcalf

On May 22, 2015, the UN Crime Commission approved the revised Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules.  The new rules are long overdue, the original set having been drafted in 1955.  In the ensuing 60 years, how people in prison fare has improved in some areas, such as the use of corporal punishment. But many areas have not. The world over, pretrial detainees and convicted prisoners suffer from overcrowding, as well as the attendant lack of adequate medical care, shelter and food, not to mention violence at the hands of some officials and prisoners.

The United States is notoriously the world leader in incarceration rates; we have also broken ground in draconian practices, most notably institutionalized solitary confinement. The new Standard Minimum Rules regarding indefinite isolation highlight just how out of step the United States has fallen.

So-called supermax prisons proliferated across the United States, largely unchecked, following the hardening of the federal USP Marion in the early 1970s. States such as California—site of the longstanding controversy regarding the use of solitary at Pelican Bay—were quick to follow.  The 1990s prison boom saw the widespread construction of supermax facilities even in relatively small prisons systems (such as my home state of Connecticut), a development driven principally by “tough on crime” politics and federal funding.

In 2004, the U.S. Supreme Court offered a tentative step forward in Austin v. Wilkinson. The decision formally recognized prisoners’ procedural due process rights with respect to placement into and exit from isolation. Yet the decision was conspicuously silent as to the substantive rights of people in long-term solitary.

As a recent study of state policies documented, the post-Wilkinson world has done little to place genuine stopgaps on the overuse and misuse of long-term isolation. The initial placement usually bears the trappings of due process, but the criteria are so open-ended as to undermine the legitimacy of the proceedings. Worse, the processes and standards by which an individual may be returned to the general population are typically opaque and vague. Thus, a prisoner deemed to be a threat may be plummeted into near-total social and sensory deprivation, often punctuated by mental breakdowns and bursts of conflict with staff. The ensuing isolation may last months, years, or, in some cases, decades.

The deleterious effects of solitary on prisoners are well-documented; also troubling are reports of high suicide rates and other ill-effects on staff members, who must endure the same inhumane and conflict-ridden environment as the prisoners under their watch.

For individuals facing the death penalty, isolation is automatic and permanent. As the ACLU documented in a 2013 report, prisons systems across the country elect to segregate death-sentenced individuals in supermax-type conditions. (There are a few notable exceptions, such as Missouri, that underscore that the current system is a choice not a necessity.) People facing execution by the state must wait out their last years in isolation, regardless of whether they pose any threat to staff or other prisoners, for no reason other than the nature of the conviction. Anthony Graves, who spent 18 years on death row before his exoneration in 2010, testified before the U.S. Senate that “solitary confinement does one thing, it breaks a man's will to live and he ends up deteriorating. He's never the same person again.”

By contrast, the revised Rules reflect a growing consensus that solitary confinement may only be used sparingly, for the shortest term possible (a matter of days, not years), and never against vulnerable people or solely by virtue of the nature of the conviction. Solitary confinement “shall only be used in exceptional cases as a last resort, for as short a time as possible.” The Rules draw clear lines for juveniles and the mentally ill, who may not be isolated for any period. The Rules also upend the commonplace isolation of death row prisoners, as isolation “shall not be imposed by virtue of a prisoner’s sentence. These revisions echo the recent work by the UN Special Rapporteur on Torture, who has repeatedly criticized the widespread and extended use of solitary confinement.

For the thousands of prisoners cast into “the hole,” the Rules might seem little more than wishful thinking. 

But there are signs of hope. A movement to “stop solitary” has emerged from diverse parts of U.S. civil society and across the political spectrum. A cohort of state corrections leaders have pushed quietly for change amid their own professional associations and have pioneered alternatives to solitary. Ten years ago, the current discourse would have been unfathomable. There is still the real risk that the political winds will shift or that reforms will prove superficial. But, as the new Mandela Rules remind us, the time to put an end to the United States’ failed experiment is now.