Mandela’s Legacy and Solitary Confinement: From Robben Island to… A Prison Near You?

By JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute;  Lecturer-in-Law, Columbia Law School

Nelson Mandela is known in South Africa as “Madiba”, a clan name that evokes intimacy, despite his status as a larger than life activist and national leader.  As a statesman, he was soft-spoken yet firm.  Photographs often showed him donning his signature smile.  These portrayals of Mandela belie the personal suffering and strife he experienced as a young leader of the ANC.  Mandela spent 27 years in prison for leading efforts to dismantle apartheid, 18 of them in a single cell on Robben Island, measuring a 7 feet by 9 feet.  Like many deprived of their liberty, Mandela did forced labor, lived in squalor, suffered through demeaning slurs, and was denied the most basic human dignities.   Being forced to work in intense heat caused Mandela’s “snow blindness,” damaging his vision irreparably.  

But it was the final years of incarceration that most challenged Mandela’s resolve.  In 1982, he was transferred to a prison on mainland South Africa, where he was subjected to prolonged isolation.   As he later recalled it was solitary confinement that was “the most forbidding aspect of prison life. There is no end and no beginning….One begins to question everything.”  So, perhaps it is not surprising that Mandela’s legacy includes the potential for reform of solitary conditions prisons around the world, including in the U.S.  

Since 2012 there has been an ongoing international effort to develop practical guidance on how governments can improve prison conditions, known as the Mandela Rules.  In May, in an important step forward, the Vienna Crime Commission approved the rules.  The Mandela Rules offer a much needed update to The Standard Minimum Rules for the Treatment of Prisoners, developed in Geneva in 1955 – long before our current epidemic of mass incarceration and the general proliferation of solitary confinement across the United States.

The 2015 Mandela Rules have been heralded as “one of the most significant human rights advances in recent years.”  This is strong praise to be sure, as the Mandela Rules were the result of years of intergovernmental negotiation.  Yet, there is much to commend the new standards. For starters, the Rules operate from the premise that prisoners should be treated with basic dignity, a fundamental paradigm shift for most US prisons.   The rules also reflect the fact that torture and cruel, inhuman or degrading treatment and punishment are realities in prisons.  The Rules call for staff to be trained on how to treat prisoners humanely AND state that allegations of torture and CIDT should result in an investigation by an independent national authority.

The Mandela Rules also delve into specifics of how to treat prisoners with dignity, including strict limitations on the use of solitary confinement.  According to the Rules, solitary should be used “only in exceptional cases as a last resort for as short a time as possible and subject to independent review.”  There is also a blanket prohibition on the use of solitary for more than 15 consecutive days.  Further, solitary is prohibited where it would exacerbate the condition of a prisoner with mental or physical disability or where women and children are involved.   

A number of the 122 rules echo calls by US rights advocates, including in the arena of education and rights of women.  Rule 104 calls for education and training in prison, and for education of youth to be compulsory.  Rule 48 expressly prohibits the shackling of pregnant women during labor (which the NY Times reported on this week). The Mandela Rules also reflect recommendations from UN experts, including members of the Committee Against Torture, and the U.N. Special Rapporteur on Torture, Juan Mendez.  During the 2010 UPR, the United States also received a recommendation to ensure human rights protections in US prisons, including maximum security prisons (Rec 177, which the US accepted).

While the Mandela Rules resulted from years of government negotiation, US groups, especially the ACLU, were deeply involved in the revision of the Rules, alongside international groups coordinated by Penal Reform International, and Juan Mendez, the UN Special Rapporteur on Torture.   By engaging with the reform process, civil society groups and human rights experts were able to inform the outcomes.  One last hurdle remains before the Rules are final:  formal adoption by the UN General Assembly later this year.

Of course, even when adopted, the Mandela Rules will be soft law.  As a non-binding framework for prison reform, the challenge in the U.S., and around the world, will be implementation.   But there is already evidence that the Rules won’t just remain on the shelf.  The United States has supported adoption of the rules, and included corrections officials from Washington and Colorado on its delegation to negotiate the Rules.  Both states have worked to reduce the use of solitary and have discussed their own efforts to improve prison conditions, including reducing solitary, throughout the development of the Rules.    

The Mandela Rules offer specific, practical standards to bolster reform of U.S. federal, state, and local prisons.  In the context of a renewed focus on solitary by the Obama Administration and the September settlement putting an end to the use of indefinite solitary at Pelican Bay, the Mandela Rules offer another tool in the struggle to eradicate solitary confinement.  Human rights advocates will play a key role in publicizing the Rules and underscoring their relevance to prison administrators.