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Is Solitary Confinement Unconstitutional?

We must bring the U.S. criminal justice system into compliance with prevailing human rights standards on solitary confinement.

  • Meredith Gallen
June 27, 2012

The United States currently holds over 80,000 inmates in solitary confinement, more than any other democratic country in the world.  Totalitarian China used solitary confinement to force confessions out of prisoners; we use it to punish minor infractions of prison rules or, worse yet, to “protect” prisoners who have been abused or assaulted by fellow inmates.  Reform is necessary to bring the U.S. criminal justice system into compliance with prevailing human rights standards and to ensure that “prisoners do not shed all constitutional rights at the prison gate.” 

Our country’s solitary confinement practices are one of the greatest and most visible failings of the broken U.S. criminal justice system. Thankfully, a growing movement is urging the United States to ban solitary confinement as “cruel and unusual punishment.”  Last week this movement received a boost from Senator Richard Durbin (D-Ill.), who held a hearing of the Senate Judiciary Committee to reassess conditions of solitary confinement, and who announced plans to introduce legislation that would reform solitary confinement in federal prisons. 

Sen. Durbin’s proposed solitary confinement reforms are a good, though modest, way to begin to repair the damaged system.  The legislation should seek to increase transparency in the use of state and federal funds for solitary confinement, prohibit torturous segregation practices (like sensory deprivation), and increase access to mental health services for inmates held in solitary confinement. Sen. Durbin’s proposed legislation must also provide significant due process rights to inmates subject to placement in solitary confinement. 

For the past 40 years courts have struggled to determine what, if any, due process rights exist for inmates involved in the internal disciplinary and administrative processes of our country’s prisons.  However, testimony submitted to the Senate Judiciary Committee undoubtedly indicates that an assignment to solitary confinement is a complete deprivation of liberty that requires full access to due process rights. 

Inmates are currently provided with few means to challenge their removal from the general prison population to solitary confinement.  For example, in New York, inmates who are at risk of being sent to solitary confinement as a disciplinary measure are entitled to appear at a hearing prior to reassignment.  At these hearings, inmates have the right to receive notice of the charges filed against them and the right to call witnesses, but they do not have the right to counsel or the right to cross-examine witnesses. 

The Senate Judiciary’s hearing revealed that the lack of due process rights in New York is representative of a nationwide failure to provide inmates with substantial opportunities to oppose placement into what most inmates refer to as “the hole.”  In fact, as the expert witnesses highlighted, the vast majority of inmates, including juveniles and individuals suffering from mental illness, are sent to solitary confinement without receiving the assistance necessary for them to meaningfully advocate against being relegated to life in tiny windowless cells. 

As Sen. Lindsey Graham acknowledged in his opening remarks to the hearing, the manner in which the U.S. chooses to confine its inmates “says a lot about who we are as nation.”  It is time for both parties to embrace legislation that provides inmates in solitary confinement with significant due process rights, thereby reaffirming our country’s commitment to the promises of the Constitution.