Criminal justice reform advocates in New York recently celebrated a new law, signed in April, that limits solitary confinement to fifteen days. The law—called the Humane Alternatives to Long-term (HALT) Solitary Confinement Act—puts New York among only a few other states that have restricted solitary to a significant degree for everyone in prison (many other states have banned solitary for vulnerable people such as youth and those with mental illness).
Advocates argue that the rule, which passed in June, simply institutes solitary by another name.
Soon after the law passed, the New York City Board of Correction—a board that monitors and inspects the city’s jails—approved a rule that would, in the Board’s view, ban solitary in the facilities they oversee.
“New York City is going further than any jail system in America,” said Mayor Bill de Blasio of the new rule, which will, he claimed, end solitary “once and for all.”
But advocates argue that the rule, which passed in June, simply institutes solitary by another name. The policy, called the “Risk Management Accountability System,” creates new levels of separate disciplinary housing, where people would be released for ten hours per day from their cells—and moved into an adjacent individual cell. (One to two of those ten hours would include programming in a separate space.) While the time in these levels is capped at thirty days, this can be extended on a case-by-case-basis, which also concerns advocates.
Melania Brown, an advocate and sister of Layleen Polanco, who died while in solitary confinement at Rikers Island in 2019, says the new system “would not have saved my sister’s life.” Anisah Sabur, who endured solitary at Rikers for over sixty days and is now an organizer with the HALT Solitary Campaign, recently urged the New York City Council to “end the “fake ‘ban’ on solitary.”
Jennifer Jones Austin, Chair of the Board of Correction, tells The Progressive that the Board disagrees with the advocates’ claim that the new policy keeps solitary in place. She says that from their individual cells, people will be able to interact with others (in their own cells). Austin adds that the Board aimed to “ensure greater safety” both for detained people and for correction officers.
It remains to be seen what will happen in New York City jails (the new policy is currently set to go into effect in November), but it makes sense that advocates would worry about the dangers of backsliding—this has happened in other states. In Massachusetts and California, corrections departments have found ways to circumvent state reforms to solitary. And in Texas, Michigan, Virginia, and elsewhere, it’s common to hold inmates in near-constant isolation—often as a form of punishment—while officials deny that the practice is solitary confinement.
Jessica Sandoval, director of the Unlock the Box Campaign, a national coalition of organizations that aim to end solitary, tells The Progressive that corrections departments use jargon to keep the system opaque, calling units by names such as “special management unit” or “special housing unit.” But, she adds, “when you talk to people there, they say ‘we’re in solitary.’ ”
About 60,000 people are held in solitary confinement in prisons nationally, according to a 2019 report by the Liman Center at Yale University. That total is likely much higher, as the study did not include people in other institutions, such as jails and juvenile detention facilities. And during the pandemic, Unlock the Box reported that the figure jumped to roughly 300,000 being held in solitary.
In 2019, about 60,000 people were held in solitary confinement in prisons nationally; during the pandemic, that number jumped to roughly 300,000.
Decades of research have shown that extreme isolation can cause severe psychological harm and brain damage. The United Nations has deemed that holding an individual in solitary for more than fifteen consecutive days is a form of torture. And while corrections officials often say that solitary is needed to keep people safe, the evidence shows that solitary does not make prisons and jails safer. As a result of the growing data on solitary’s harms, a movement to end the practice—at the grassroots level, through litigation, and among legislators—has been gaining momentum in recent years.
In 2018, Massachusetts passed a law that, among other things, aimed to reform solitary confinement, which was defined as twenty-two hours or more in a cell. The following year, however, the Massachusetts Department of Correction created new units that held people in cells for twenty-one hours per day. The Department contended that the units were not “restrictive housing” under the law.
“The intent of the law was to have people in [the general prison] population more than solitary,” Bonnie Tenneriello, a lawyer who works with the non-profit Prisoners’ Legal Services, tells The Progressive. “But instead, we’ve had the creation of a lot of capacity that’s very close to solitary.” Not only is out-of-cell time extremely limited at just over two hours, Tenneriello adds, but “when I last saw the SMI unit [a new unit created for people with serious mental illness], they were all chained in these chairs facing in the same direction, not even facing each other.”
In November 2020, the Department of Justice released the results of an investigation that found Massachusetts had violated the constitutional rights of people in mental health watch. The report noted that people in mental health crises are held in prolonged isolation without appropriate treatment, sometimes for months.
In a period of thirteen months, according to the DOJ, over half of the prison system’s 1,200 self-injurious behavior incidents and half of its eight suicides occurred in Mental Health Watch, which comprises only 1 percent of incarcerated people.
Aiming to remedy the situation, state legislators have introduced further bills. State Representative Liz Miranda sponsored a bill this year that includes language to close the loopholes. It would limit solitary to fifteen days for disciplinary infractions (it is currently up to ten years for a single infraction). “Massachusetts incarceration culture is one of punishment and control, and solitary is just used to reinforce that culture,” Representative Miranda says.
She also notes that people of color in Massachusetts are incarcerated at a disproportionate rate, as well as disproportionately placed in solitary confinement. In addition to sponsoring a similar bill in the state Senate, Senator Jamie Eldridge sponsored a mental health watch bill which would require transferring people to an outside mental healthcare facility after twenty-four hours in mental health watch, if they are at continued risk of self-harm.
The Massachusetts Department of Correction recently announced that it would end restrictive housing in three years, but legislators and advocates tell The Progressive that they question that timeline on such an urgent issue, and that they’ll continue to push to pass the new legislation. Massachusetts Against Solitary Confinement—a coalition consisting of many formerly incarcerated people who have survived solitary confinement—provided input on both bills.
Leslie Credle and Romilda Pereira, advocates with the group who both spent months in solitary, say that it’s essential that impacted people weigh in. Doing so “allows people to be aware of what the DOC is actually doing, versus what they’re telling you they’re doing,” Credle tells The Progressive. Pereira, who serves as the group’s interim coordinator, adds that it’s also crucial that lawmakers visit prisons regularly, because doing so makes the conditions real for them.
She has heard from legislators who visited solitary confinement say that they “can’t believe we’re treating humans like this.” Looking ahead, both advocates say they’re hopeful that the new legislation will improve conditions, but Credle notes that she’s afraid that, in Massachusetts, “DOC will find a new loophole and we’ll be back at the drawing board again.”
Another state in which there’s been a long-running fight against solitary confinement is California, where the state Department of Corrections and Rehabilitation has circumvented reforms.
Starting in 2011, people who had been in solitary confinement for years in the state, some for decades, organized resistance and went on hunger strikes to protest the state’s use of solitary.
A class action lawsuit (Ashker v. Governor of California)—brought by the Center for Constitutional Rights on behalf of a group of incarcerated people—led to a 2015 settlement that included several major restrictions to solitary confinement, including returning many people in solitary back to the general prison population.
But since then, the Center for Constitutional Rights has argued that the state’s department of corrections violated the agreement. “We found that a lot of our clients were being moved out of solitary confinement and put into Level IV ‘general population’ units,” says Rachel Meeropol, a lawyer at the Center for Constitutional Rights. “They had the same or even less out of cell time than they had had in solitary confinement [fewer than ten hours out of cell per week].”
The California Department of Corrections and Rehabilitation also created a new “walk alone” status, Meeropol notes, where people were also experiencing solitary by another name. A district court judge ruled that the state had violated the 2015 settlement, but a ninth circuit judge overturned the ruling (and the Center for Constitutional Rights has petitioned for a rehearing).
At the federal level, nearly 10,000 people are held in solitary confinement, which is around 8 percent of people incarcerated in federal facilities, a higher rate than the national state average. President Joe Biden, during his campaign, promised to end solitary at the federal level, and a newly formed Federal Anti-Solitary Task Force is now pushing him to fulfill this pledge.
The task force recently released a blueprint for ending solitary at the federal level, emphasizing that this means ensuring that all alternatives to solitary—“regardless of what they are called”— are the opposite of solitary. It defines the opposite of solitary as “access to full days out-of-cell (at least fourteen hours) and congregate, meaningful programming and activities (at least seven hours)” without restraints and with other people.
Jessica Sandoval of Unlock the Box, who contributed to the task force’s blueprint, says that in laying out this definition, members aimed to “close as many loopholes as possible.” The task force also calls for much more transparency in solitary confinement reporting, as well as independent oversight.
Advocates and legislators tell The Progressive that ending solitary confinement—including all forms of solitary by another name—is necessary but far from sufficient for improving prison conditions. People also need meaningful opportunities. “The best way to reduce reliance on restrictive housing,” says Bonnie Tenneriello, “is to flood the general population with meaningful programs that offer earned good time, with education, and with opportunity.”