Thursday, February 25, 2016

The Drumbeat to End Solitary Confinement Intensifies -- New Resources and Continuing Challenges

Recent weeks have seen a number of diverse contributions to the growing campaign to end the liberal use of solitary confinement in the US, and to bring practices within international human rights guidelines.  This blog entry collects these developments, which many will want to use in their teaching and writing in the coming months.

The lead story is undoubtedly President Obama's January 2016 ban on the use of solitary confinement for juveniles in federal prisons and other restrictions on the amount of time that prisoners can be held in solitary for low level infractions.  Amnesty International heralded the move as a human rights victory that followed years of struggle.

While the federal reforms provide a guide to state and local prison officials, truly national reform has yet to be achieved.  Yet the momentum supporting such changes has never been stronger.  Among other developments, the Yale Law Journal-Forum recently published a set of responses to the Yale Liman Center's September 2015 critical report on solitary confinement, Time-in-Cell.  Contributors include Judge Alex Kozinski and Marie Gottschalk, among others, presenting both the critiques and shortcomings of solitary confinement as well as alternatives.  Perhaps the contribution that has sparked the most attention is the first-person essay by Reginald Dwayne Betts, a current Yale Law student who writes about his experience of solitary confinement during a period of inceration as a teenager.

Another first-person account, written by former prison journalist Wilbert Rideau, appears in the February 22 issue of Mother Jones Magazine.  And the Guardian posted this account of an exclusive interview with Albert Woodfox, recently released after 43 years in solitary confinement in Louisiana prisons.  Woodfox told reporters, “It’s an evil. Solitary confinement is the most torturous experience a human being can be put through in prison. It’s punishment without ending. We have got to stop this, and having been a victim of it for so long myself, that’s what I’m going to do.”

Lawyers and criminal justice advocates are not the only contributors to this movement.  For example, Architects, Designers and Planners for Social Responsibility added their comments to the modest Changes proposed by the American Correctional Association, while also situating their position within the larger human rights context.  Social Workers Against Solitary Confinement are also active, producing a recent report by prison social workers calling for an end to the practice.

While the drumbeat to end solitary confinement intensifies, the road ahead is difficult.  As Woodfox's decades-long ordeal indicates, solitary confinement is an entrenched practice in many jurisdictions.  The recent visit of the UN Working Group of Experts on People of African Descent put this into perspective.  On the one hand, they welcomed President Obama's announcement regarding federal reforms, made during the Working Group's US visit.  On the other hand, they expressed regret that they were not allowed access to the Mississippi State Penitentiary and that several state officials did not make themselves available to meet with the Working Group.  They further noted the hurdle posed by the United States' federal structure, observing that "Disparities in the enforcement of policies, can be found in the different approaches adopted by states to address issues such as . . . the use of solitary confinement and the trial of juvenile offenders, among others."  The Working Group then added its voice to the domestic calls for further reform, stating that:  "Solitary confinement should be banned absolutely for being in violation of international human rights law standards particularly those found in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the United Nations Standard Minimum Rules on the Treatment of Prisoners."

Still, the practical challenge of how to gain traction for such human rights pronouncements in the US remains significant.  An important contribution in this regard appears in  the new book,  titled The Transformation of Human Rights Fact-Finding, by Philip Alston and Sarah Knuckey.  In a chapter titled Human Rights Fact-Finding in the Shadows of America's Solitary Confinement Prisons, New York Civil Liberties lawyer Taylor Pendergrass  offers an analysis of the human rights fact-finding approach adopted by the NYCLU as it prepared its landmark 2012 report on NY State's solitary confinement practices, Boxed In: The True Cost of Extreme Isolation in New York's Prisons.  Pendergrass concludes that "the NYCLU’s utilization of a human rights framework was of key importance for placing New York’s solitary confinement practices in an international context, and contrasting well-established human rights protections with still-developing domestic law.  That human rights framework was reinforced by adherence to the principles of human rights fact-finding, many of which do not commonly inform investigations in the United States."

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