Human Rights at Home Blog

Human Rights Victory: Texas Stays Execution of Nicaraguan National

Washington Week in Human Rights reports that:

 Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.

Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's  scheduled execution. The Appeals Court returned the case to the trial court for review.

 

Judge Gee Enters Her Final Order

In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to  respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.

On Friday, Judge Gee entered her order.  She ordered the release of immigrant children held at the detention centers.  More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania.  The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention. 

The government has until October 23rd to comply with the order.

One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement.  While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.  

The administration has not yet announced if it will appeal Judge Gee's decision.

 

 

Inter-American Commission: US Can and Must Do More to Close Guantánamo

 

by Deborah Popowski, Lecturer on Law and Clinical Instructor, Harvard Law School, guest contributor

On August 5th, the Inter-American Commission on Human Rights released a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.

Personal Integrity and Access to Justice

The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.

The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent. 

The report also takes on the conditions that contribute to these grave health problems, including to prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo  violates their right to humane treatment. 

The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment. 

An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.” 

“A Prison for Foreign Muslim Men”

The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain. 

“Towards Closure”

The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews. 

Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.  

Obama Administration Continues Mistakes on Immigration

Guest writer Irene Scharf  writes on the Obama Administration's response to release of women and children from the immigrant detention centers:

The recent decision by U.S. District Judge Dolly Gee condemning the government’s mass incarceration of refugee families, specifically mothers and children seeking asylum in the U.S., reminds us that the Obama Administration continues to maintain ill-advised positions with regard to the treatment of immigrants in this country.

 The Administration’s disappointing response to Judge Gee’s decision is to continue supporting the incarceration of refugee women and children who have fled violence and persecution in their home countries.  The decision has been denounced by several organizations with expertise in this area, including the Center for Gender and Refugee Studies and the national American Immigration Law Association.

 The Center for Gender and Refugee Studies (CGRS), which has called for an end to mass family incarceration, notes that the “ruling correctly found that incarcerating children with their mothers violates the Department of Homeland Security’s (DHS) obligations under the 1997 Flores v. Reno settlement agreement, which governs the custody and treatment of children by DHS. That agreement … requires release of children along with their mothers unless the families pose a flight risk or danger.”  The decision enumerated some of the harms caused by confinement of children, including “‘long-lasting psychological, developmental, and physical harm” as well as impeded “access to legal representation, critical for asylum seekers navigating our complex system of immigration laws.”

 The government’s insensitivity to the rights of immigrants, particularly children, is not new.  In  1988,  in an article I co-authored, What Process is Due?  Unaccompanied Minors' Rights to Deportation Hearings, we examined the rights abuses to which unaccompanied immigrant children were subject by the legacy Immigration and Nationality Service. During that time, prior to the institution of protections, children entering without their parents were wrongfully pressured to waive their rights to deportation hearings, even when they had asylum claims. The administration's ongoing support for detention is reactionary by perpetuating the abuses the Flores settlement was intended to end.

 A New York Times article on the subject notes that

“Judge Gee … found that migrant children had been held in ‘widespread deplorable conditions’ in Border Patrol stations after they were first caught, and she said the authorities had ‘wholly failed’ to provide the ‘safe and sanitary’ conditions required for children even in temporary cells.” (Julie Preston, July 26, 2015).  The CGRS reminds us that  “[t]he operation of inhumane family detention facilities violates the rights of refugee families and contravenes our cherished national commitments to liberty, due process, and justice.”

As of June 30, about 2,600 women and children were held in the three incarceration centers, according to government officials.

 

 

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. 

On Language: De-Humanizing Those Who Are Incarcerated

Many years ago I read Miller and Swift's Words and Women (1976).  The book demonstrated how language has been used to separate women from men in ways that assign women to lesser status.  The authors brought to my consciousness the power routine language has in creating bias in how we view other human beings.  

Recently Reality Check published a piece by Victoria Law and Rachel Roth: Names Do Hurt: The Case Against Using Derogatory Language To Describe People in Prison.  Law and Roth remind us on the power of language to de-humanize one segment of our population.  

The authors write,  "The term 'inmate' is the most pervasive of these words; it is widely used by judges, prison and jail officials and staff, and the media. Far from being neutral, this word objectifies and disparages people who are imprisoned."

Desensitization is a tool for those who administer cruelty.  In its extreme, administering the death penalty is difficult to manage if the man or woman killed is appreciated for their humanity.  Less dramatic, but equally chilling, referring to those who are incarcerated as "inmates" disguises the mission of prisons.  Traditionally we understand incarceration to serve two purposes, the first being punishment and the second rehabilitation.  Most would agree that rehabilitation is at best a limited goal of most states.  De-humanizing those in prison assists those who advocate punishment only and view rehabilitation efforts as luxuries to which those who are in prison are not entitled.  

Once we de-humanize the population we have no reason to consider what could be done to respect the humanity of men and women in prison.  Our use of culturally accepted prison language, whether unintentional or not, ties us to the conspiracy of those whose goals are punishment, no matter how cruel or counterproductive. 

Intentional Injustice

The state often ignores evidence that could prove innocence. We know this. Nonetheless, each revelation is shocking. Recent revelations that the FBI acknowledged hiding evidence that likely would have led to innocent verdicts were the latest disturbing discoveries .  According to a New York Times article, the FBI's forensic scientists confirmed that the testing "was scientifically indefensible in nearly every one of more than 250 cases reviewed." 

These recent disclosures stem from suppressed DNA hair results. One defendant was executed on the FBI claim that hair found at the scene of a murder matched that of the defendant. In truth, the hair sample in question belonged to a dog. After this and other cases which exposed flawed FBI forensic testing, the FBI reached an agreement with the Justice Department (motivated by the work of The Innocence Project) to review the forensics in over 2500 cases.

The quality of justice is mediocre.  Common goals should converge.  If the government is not interested in whether the convicted are actually guilty, surely it is concerned with reducing crime in our communities.  Wrongful convictions mean that the perpetrators are left free to commit additional crimes.  Ensuring integrity of forensic evidence is one way to meet the needs of citizen protection and avoid wrongful convictions and executions.

 

Nuns' Path to Private Prison Human Rights Reform: Own The Prisons

While students at Columbia University hold demonstrations encouraging the school to divest ownership shares in private prisons, an order of nuns has devised a different solution for ensuring prisoner human rights.  The Sisters of Mercy of the Americas, through their Mercy Investment Services, Inc., have be purchasing shares in those prisons. 

Fund manager Sr. Valerie Heinonen has been purchasing shares in private prison companies since 2000.  The fund strategy is to purchase a sufficient amount of shares to influence change in the way that private prisons are run.  Heinonen told CNN Money:  "What we want is the establishment of a human rights policy at these companies". 

The two largest owners of private prisons are Geo Group and Corrections Corporations of America.  The companies have been hugely successful.  According to CNN Money, the stock of Geo Group has risen 130% over the past three years.  But, many argue, those profits are made on the backs of prisoners whose human rights are  disregarded. 

With the decline in incarceration rates, empty private prisons have been used to house detained immigrant children and adults.  As  reported by CNN, Mercy has raised concerns around food, housing and education for detained children and adults.  Sr. Heinonen said:  We've also been concerned about legal access for people."  The Mercy Fund and prison ownership companies are in communication, addressing the human rights concerns.  The Mercy Fund has also used corporate process successfully.  After its initial success with a corporate environmental ballot, prison waste is being recycled.  The nuns then moved on to typing executive compensation to social, as well as financial, success.  Said Sr. Heinonen:  "By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives." Now the prisons have official human rights policies. 

Prison reform by shareholders and others is a long term venture.  But the investor strategy gives the shareholders clout that is no longer available to those who sell their stocks in protest. 

 

 

Solitary Confinement and Human Rights: Resources and Recent Developments

The current issue of the Canadian Journal of Human Rights is a special volume focused on solitary confinement and human rights.  Articles in the interdisciplinary journal include prisoner writing and philosophy as well as comparative analyses from Europe and the United States.

In the U.S., though its use has decreased since a peak in the 1990s, solitary confinement remains pervasive and concerning; an estimated 80,000 prisoners are currently detained in solitary confinement in the U.S.  Indeed, even the mainstream media has picked up the issue, with no less than Vanity Fair publishing an essay on "the horrors of solitary confinement" in its January 2015 issue and the New York Times running Emily Bazelon's essay on "the shame of solitary confinement" the following month.

Activists are determined to bring an end to the practice, and have called for a complete ban on prolonged solitary confinement of more than 15 days.  Lawsuits have been one vehicle.  A suit in New York City led to favorable reforms.  Pelican Bay prisoners mounting a pending suit in California recently won a motion to maintain past prisoners as members of the class, increasing the pressure on the state.  Also in California, Statewide Coordinated Actions To End Solitary Confinement (SCATESC), began March 23, 2015, with actions in Arcata, Oakland, San Diego, San Jose, Santa Cruz and in Philadelphia, PA.  More locations will join on April 23rd and then 23rd of each month following.

The upcoming University Periodic Review of the U.S. by the Human Rights Council will provide another occasion for scrutiny of U.S. prison practices.  A consortium of groups, led by the Center for Constitutional Rights, submitted a succinct document  to the Council addressing solitary confinement.  The final paragraph of the submission aptly sums up the current struggle for reform:

"The US warehouses tens of thousands of prisoners in prolonged solitary confinement, a practice
that is well-known cause to devastating psychological and physical effects. These harms are disproportionately visited upon people of color, politically-active prisoners, and those whose
gender or sexual identity is perceived to make them vulnerable to sexual assault. The US Government must take concrete steps to end the use of prolonged solitary confinement; to ensure
meaningful process prior to such confinement; to develop standards that prevent the
discriminatory use of solitary confinement; and to compile data on the use of solitary
confinement across the country."

More Good News for Exonerees

The University of Michigan Law School  maintains a registry of the exonerated.  According to the registry, nearly one hundred individuals were exonerated this year.   With the assistance of innocence projects, law school clinics and other pro bono counsel, the wrongfully accused have garnered new hope since Attorney Barry Shek co-founded the first law school affiliated innocence project in 1992.

One exoneree, Kenneth F. Ireland, was appointed by Governor Daniel Malloy of Connecticut to serve on the state's Board of Pardons and Parole.  The appointment is provisional until the legislature votes next year but in the meantime, Mr. Ireland has been an active member of the board.   Governor Malloy is leading the way in acknowledging that there is much to be learned from the exonerated.  Along with an apology, the state of Connecticut has acknowledged the many lessons that the wrongfully convicted can teach us about avoiding the mistakes of our past.  Good news!

To read the most recently reported exoneration case reported on this blog click here. 

 

39 Years of Wrongful Incarceration

Editor's note:  Co-Editor Brian Howe is an attorney with the Ohio Innocence Project.  He recently obtained freedom for his client Ricky Jackson who was incarcerated for 39 years.  Brian is a former student of mine and participated in both the Domestic Violence Clinic and Innocence Project during my tenure at Cincinnati College of Law.  He is an amazing individual and I asked him to write about his recent case.  Below is a photo of Mr. Jackson and Brian. At the end of the post is a photograph of Mr. Wiley, whose case Brian also discusses.  M. Drew

 

 

by Brian Howe

 

Earlier this year, I wrote about a study estimating that 4-5% of people sentenced to death may be actually innocent.  I don't know how accurate those statistics are, or if there is any way to know for sure.  But I do believe that even one innocent person sentenced to death is unacceptable.  No one should face what Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu did in 1975.  

 

That year, a white money order delivery man named Harold Franks was robbed and murdered as he left a convenience store in Cleveland, Ohio.  Ricky Jackson and two other men were arrested and convicted for the crime, based solely on testimony from a 12 year old witness.  The three defendants had basic alibis, and there were serious inconsistencies and flaws in the 12 year old boy's testimony. It wasn't enough. All three defendants were convicted and sentenced to death.  

Thirty nine years later, in November of 2014, the 12 year old boy-- now 51-- took the stand and admitted he had lied.  He never saw the crime.  He claimed that police began considering him a witness because of a misunderstanding, and then pressured him into moving forward with the story.  After a two day evidentiary hearing, Cuyahoga County prosecutors conceded that the case against Jackson was in shambles. and they withdrew their opposition to Jackson's release.  Last week, to their credit, prosecutors affirmed that their sole witness had lied, and that Jackson and his two co-defendants were and are actually innocent.  The office called them "victims of a terrible injustice."  Through the Ohio Innocence Project, I had the privilege of representing Mr. Jackson in the 2014 litigation.  The full background can be found in a pair of fantastic articles written by journalist Kyle Swenson.

 

Read newspaper accounts here and here.

 

There are so many powerful parts of this story.  But one of the things that has stuck with me lately is how lucky it was that any of them-- much less all three of them-- avoided execution.  The sentences were not commuted by state officials out of prudence, or cautious concern about the weakness of the case.  Ricky Jackson is alive today because of a minor clerical error in a jury form, the kind of "technicality" that has nothing at all to do with the merits of the case, and that tends to exasperate death penalty advocates. *(1)  The other two defendants are only alive because, in 1978, the United States Supreme Court intervened to reject Ohio's revised capital punishment statute.  By that time one of the defendants, Wiley Bridgeman, had been 21 days from execution.  

 

It would be strange to call these men "lucky," having just served a majority of their lives in prison for a crime they did not commit.  But it is sobering to think how close they came to being killed.  I am so grateful that I have had an opportunity to get to know Ricky over this past year.  He is an amazing man.  If it would be wrong to say that he is "lucky," then I think at a minimum we are lucky to have him with us, to have his story as an example of our fallibility, and maybe to learn from what happened.

 

If you would like to donate to Ricky Jackson or Wiley Bridgeman to help them with basic necessities, the links are here and here.  

 

Happy Holidays!

 

Transgendered, Incarcerated Women, An Update

Co-editor David Singleton updates his post chronicling recent developments on transgendered, incarcerated women:

Last month I posted about the Ohio Justice & Policy Center’s victory on behalf of  Antione “Whitney” Lee, a transgender inmate who brought suit against the Ohio Department of Rehabilitation (“ODRC”)  to obtain estrogen hormone therapy.  At the time of my last post, OJPC had just won a TRO hearing at which a federal court judge  ordered ODRC to place Ms. Lee on hormone therapy pending a preliminary injunction hearing.  On May 2, 2014, after a two-day hearing, the judge granted a preliminary injunction requiring ODRC to continue to provide Ms. Lee with hormone therapy pending trial.  Ruling from the bench, the court stated that the defendant, Dr. Andrew Eddy, had acted with deliberate indifference – the standard for Eighth Amendment medical claims – in denying estrogen to Ms. Lee. Click here to read the Associated Press’ coverage of the preliminary injunction ruling.  At this time it is unclear whether ODRC will appeal, or whether the case will settle or go to trial.   

Meanwhile in Massachusetts, Michelle Kosilek’s  effort to get the Massachusetts Department of Corrections (“MDOC”) to pay for gender reassignment surgery was back in court last week.  Ms. Kosilek, given the birth name Robert, is  presently serving a life prison term for killing spouse Cheryl Kosilek in 1990.  Earlier this year, a three-judge panel of the federal First Circuit Court of Appeals affirmed a federal district judge’s order requiring the  MDOC had to perform and pay for the surgery.  However, the full appeals court voted to reconsider the case and heard arguments on May 8, 2014, as reported by the Associated Press.  Stay tuned

Solitary Confinement and Human Rights Abuses

Solitary confinement is one of the US prison practices found to be a human rights violation during the recent UNHuman Rights review of US compliance with the ICCPR. 

The current practice of solitary confinement reaches far beyond the original concepts of the Quakers and Anglicans who promoted the idea.  In 1839, members of both traditions recommended that each prisoner be held in a separate cell that would radiate out from a central guard location.  The thought was to initiate reform through solitude.  The expectation was that those confined to prison would reform through reflection developed during their isolation.  The isolation was not intended to be total. The warden was required to visit prisoners daily and the prisoners could consult with chaplains.  Isolation was thought to both punish and rehabilitate.  The confined were given the opportunity to become penitent when forced to consider their actions during the quiet of isolation.  The expectation of prisoner penitence gave way to calling these prisons “penitentiaries”. Eastern (PA) State Penitentiary was hoped to be the model penitentiary influenced by Quaker concepts.

In “Solitary Confinement: A Brief History” by Shelby Biggs, the author reflects that the development of prisons in the early 1800’s removed from communities the power to determine how offenders would be punished.  Prisons were considered a more humane method of punishment particularly with the later addition of a rehabilitation component. 

Now legendary is Charles Dickens' 1842 visit to Eastern State (PA) Prison, which was designed with  Quakers and Anglican principles in mind.  His goal was to assess how the social experiment in punishment and rehabilitation combined with reflection was progressing.  Dickens was shocked at the conditions he found.  "The system here, is rigid, strict and hopeless solitary confinement," Dickens concluded. "I believe it…to be cruel and wrong...I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body."    

The practice has continued with devastating results.  Some states have taken limited measures to reduce the use of solitary confinement.  New York has agreed to prohibit the use of solitary confinement (punitive segregation unit) for disciplinary purposes for juveniles and those who are pregnant or developmentally disabled.  But serious adverse consequences reach beyond prisoners in those categories.  Mary Buser, former Chief of Mental Health at Riker’s Island, wrote about her experiences working with those in solitary confinement and the disturbing mental health consequences on the prisoners she observed.  She describes the occupants’ mental health decomposition as “swift”, even where the occupant had no prior mental health diagnosis. Buser describes inmates who cower in corners, sometimes naked.  She speaks of blood smeared walls, makeshift nooses and shell shocked faces.  Only at the point of impending death or serious injury were inmates removed to a specialized unit at a different facility.

Limiting categories of those who will not be placed into solitary confinement is not enough.  Given our prison culture, such “reforms” are slow and insufficient. 

 Buser concludes: “Having worked 'behind bars' for five years in various capacities, I understand the rationale for solitary — the need to safeguard correctional staff, maintain jailhouse order and manage “high risk” inmates. If, however, the United States is truly to be the champion of human rights that Americans say we are, then surely we can find more humane methods of achieving these goals.”