How new federal rules on solitary confinement could be just the start

If the states are willing to follow President Obama's lead on solitary confinement, some experts believe there could be significant, systemic change in how American inmates are treated.

When Vincent Schiraldi was running the juvenile corrections system in Washington, D.C., limiting the use of solitary confinement was radical enough that banning the practice outright wasn’t even discussed. Now he wishes he could have gone further.

"I'm sure I made them more mentally ill, made them more at risk for physical harm," he says of his tenure between 2005 and 2010. "I did not ban solitary confinement when I was commissioner in D.C., and I wish I had."

But in just the past few years, says Mr. Schiraldi, there has been a “sea change” in the discussion of solitary confinement – particularly following the death of Kalief Browder, a young New Yorker who committed suicide two years after a three-year stay in Rikers Island jail that included 400 days of solitary confinement as a teen. Mr. Browder, who maintained his innocence, never received a trial or was convicted of any crime.

That sea change reached a new crest this week as President Obama announced a handful of executive actions on solitary confinement in federal prisons, banning it for juveniles and limiting its use for other inmates. Mr. Obama announced the actions in a Washington Post op-ed, opening with Mr. Browder’s story.

Undoing decades of reliance on solitary confinement as a quick, easy way to deal with bellicose inmates will not be easy, says Schiraldi, now a senior research fellow at the Harvard Kennedy School of Government in Cambridge, Mass. But he's seeing signs of change that could eventually become the norm in US prisons. And it’s starting at the juvenile level.

"The fact that the president is saying we should end the use of solitary confinement of youth I think will be a major, major clarion call for doing so," he says. "And I don't think it’s a stretch to think this is the kind of practice that could infect the adult system for the better."

Research indicates that solitary confinement can lead to lasting mental trauma for inmates, particularly juveniles. The practice has been linked to depression, alienation, withdrawal, and the potential for violent behavior, Obama wrote in the Post op-ed, as well as an increased likelihood of re-offending.

At adult federal prisons, Obama's executive actions ban solitary confinement as a punishment for prisoners who commit "low-level infractions." And the longest a prisoner can spend in solitary for his or her first offense will be 60 days, instead of the current maximum of 365.

On paper, the number of inmates affected isn't seismic. The federal prison population is a small fraction of the country's total, and the affected inmates a small subsection of that. For example, 13 juveniles were sent to solitary in the federal system between September 2014 and September 2015, according to the Post. But still, some experts believe the executive actions could lead to significant, systemic change in how American inmates are treated – if the states are willing to follow Obama's lead.

Solitary confinement in US prisons has been a widely used measure since the mid-1980s, but several states have already taken action to reduce or eliminate its use for both adult and juvenile inmate populations. Colorado dramatically cut the number of people in solitary confinement in 2014 – and now, assaults against corrections staff are the lowest they’ve been since 2006. Also, New Mexico has begun cutting its solitary population, and is likewise seeing some positive early results. Recent lawsuits have compelled states like Illinois, California, and New York to reduce their solitary populations as well.

Yet Susan Dunn, legal director for the South Carolina chapter of the American Civil Liberties Union, says most states – even those who have laws limiting the use of solitary confinement – can do more.

"[Obama's executive actions are] a way we can start, but the change at the federal level isn't going to change very much unless it’s picked up by the states," she says.

Protocols can be changed on paper, but implementing them on the ground is another matter entirely. Several states, including South Carolina, have laws on paper restricting the use of solitary confinement to only short periods of time, but the day-to-day stresses of the prison environment mean they sometimes aren’t followed. 

"The protocols for our [state] juvenile justice system call for solitary to only be used for short periods of time ... but those are just words on a piece of paper," Ms. Dunn says.

South Carolina law states that solitary confinement can't be used as a punishment for juveniles, and confinement can’t exceed four hours unless the juvenile is a security threat. Yet last year, Dunn represented one juvenile who was held in solitary for six weeks after being involved in a riot. She was able to get her client removed, but around that time there were 34 other inmates in solitary at the facility, she says.

"It appears that the folks who are running these facilities [think] the only way to keep kids safe is to lock them up," she adds. "The state policy in South Carolina reads pretty good; they're just not paying attention."

Schiraldi knows how easy it is for an anti-solitary policy to gradually become ignored, but he also knows from personal experience that reforms can stick.

"It's easy to, by default, take the most troubling person and stick them in a cell," he says. "Imagine being able to just make that [person] go away when you're personally very stressed, and then you can begin to see how this thing can get abused."

But when he implemented changes in Washington – which involved closing one solitary unit and limiting its use elsewhere – reforms gradually took hold, he says.

Staff were initially nervous that less solitary confinement would mean more violence, he recalls, but the absence of the restrictive housing option meant they had to focus on the alternatives.

"My suspicion is the more you ban solitary confinement, the more you have to focus on good correctional practice," he says.

And if more jurisdictions can make reforms stick, he thinks they could then be applied to older inmates.

"Part of the problem with solitary confinement is it lets those other muscles atrophy – the muscles of de-escalation, programming, counseling," he adds. "If we start to go up the chain and reduce or ban solitary confinement gradually for adult systems, hopefully that would go hand in hand, or should go hand in hand, with better correctional practices."