Crime, Prisons, White-Collar Crime

The Yale Law Journal And Solitary Confinement

With all the focus on the death penalty, another evil of the prison system is getting glossed over.

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Prison sadAmericans tend to like quantity over quality. We shop at Costco. We go to all-you-can eat buffets. We wear really big clothes because we have really big bodies.

This quality minimization extends to how we think of life. Often, the goal of our doctors in difficult spots is less to maximize quality of life and more to maximize longevity of life — particularly in cancer treatment.

You can see this preference for a longer life over a better one animates our priorities in criminal justice reform. Conditions in our prisons are horrible. The death penalty is a unique evil. Should we address the really really bad conditions of the many, or the perhaps worse conditions of the few?

The Yale Law Journal’s forum has a great set of responses to a new report on solitary confinement and its evils. Chief Judge Kozinski frames the issue in his piece Worse than Death this way:

There is a growing consensus that criminal justice reform is desperately needed. The difficult question is how best to allocate the scarce resources of lawyers, activists, and academics. I argue here that society should shift some resources and attention away from the death penalty and towards the problem of solitary confinement. If such a shift is not made, death penalty abolitionists may succeed in their campaign only to discover that they have won a Pyrrhic victory. Sending hardened criminals from death row to solitary confinement is no triumph. It merely swaps one type of death for another.

Solitary confinement is pervasive in our prison system. Often it’s called “administrative segregation” and often it’s where people in prison go who for a variety of reasons — both within their control and not. Many spend time in administrative segregation while they’re waiting for a cell bed to open up in general population. Some are there because they are in fear of their safety — the government has decided that if you’re in a vulnerable population in prison, your choices should be between facing violence or solitary confinement. Stay classy U.S. prison system.

Here’s how Kozinski describes solitary:

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Many people believe the death penalty is cruel, and it surely is. But the devastating psychological toll of solitary confinement is a beast of its own. The Time-In-Cell Report demonstrates that prisoners subjected to solitary confinement may spend as few as three hours a week outside their cells. And on weekends, they are seldom released at all. The Report also shows us that prisoners confined to the box have limited access to personal property, support services, family visits, and telephone calls. Some of their cells are as small as forty-five square-feet. Others—including many in the Deep South—lack air conditioning. In Missouri, inmates are allotted one shower every three days. Some states prohibit inmates in solitary confinement from keeping photographs of their loved ones.

There’s plenty of discussion of the psychological research on solitary in Kozinski’s piece. It’s terrifying. Check it out.

While Kozinski’s piece is — as one would expect — powerful, perhaps the most moving article in the forum is by Yale Law Student Reginald Dwayne Betts. He spent more than 14 months in solitary as a teenager and describes his experience in “Only Once I Thought of Suicide.”

On February 21, 1997, I was transferred from the Fairfax County Juvenile Detention Center to the Fairfax County Jail. At the time, my friend and codefendant was housed in the jail’s only juvenile unit. To prevent us from housing together, the deputies placed me in administrative segregation. For ten days I awaited a cell in general population. For the first eight of those ten days, I was denied a mattress, a pillow, or a sheet. Given only a small gray blanket, I slept on a concrete slab covered in dried mucus and the grime of years without cleaning. The guy in the cell across from me spent all day talking to himself. Arguing with himself. Guards and nurses alike ignored his disintegration.

One of the most chilling things I remember reading about slavery is a description of the oubliette at a camp in Africa, where slave traders held men and women before they were transported to America. The oubliette — derived from the French word for forget — was a place where unruly people were put to punish them and serve as a warning to others. It was a hole that led to a pit and covered with thick walls so that no sound escaped. People were put there and left there. They were meant to be forgotten.

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Modern solitary channels this horror. As Betts writes:

All around us, there are men and women made invisible, their spirits wiped out by policies that we don’t notice. The Time-In-Cell report forces us to grapple with their narratives in a way that Due Process and Eighth Amendment challenges brought to court do not, because the majority of the thirty thousand people in administrative segregation will never be represented in a lawsuit. But their stories, if we listen, can be found. And those are the stories that demand change.

The Yale Law Journal’s Forum is a powerful reminder that here are other reforms of the criminal justice system that need attention — to be sure — but solitary confinement’s prevalence is a societal sin that requires change.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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