Running head: CAGED 1

Caged: A Legal Analysis of the Implications of Solitary Confinement

Morgan K. Templeton

Legal Studies Academy

First Colonial High School

CAGED 2

Abstract

This paper gives an overview as to the definition of solitary confinement and explains the

differences between administrative punishment and those held in isolation on death row. The

demographics of who are in solitary are stated, including statistics for different genders, races,

physical and mental disabilities, and ages. The legality of the implementation of holding inmates

in isolation are outlined in relation to the Eighth Amendment. In order to improve the conditions

and implement more restrictive regulations, solutions are introduced, as well as different

legislations that, if passed, would achieve these solutions.

Keywords:​ ​solitary confinement, isolation, torture

CAGED 3

Caged: A Legal Analysis of the Implications of Solitary Confinement

Land of the free and the home of the brave. America prides itself on being a world leader,

setting an example of democracy and freedom for other countries. Wars have been waged and

lives have been lost in the name of freedom and liberties. But those such as Thomas Silverstein

and Sarah Jo Pender feel no such freedom, have no taste of any liberty; they are alone. Their

stories are told in a collection of five personal essays published by Solitary Watch in 2017. Mr.

Silverstein is currently held at ADX Florence under a “no human contact” order, where he’s been

for about 35 years. Stored with nothing but his underwear in an underground and windowless

six-foot by seven-foot cell, Thomas Silverstein had no concept of time, the constant bright lights

preventing him from distinguishing between night and day. His essay was obtained from a 2011

dismissed lawsuit, in which Mr. Silverstein pleaded to be let out of isolation due to the fact that

the prison infraction he was being punished for had occurred 20 years prior. Though his case is

rather extreme, Ms. Sarah Jo Pender’s essay shows a more everyday viewpoint in women’s

solitary. She had witnessed a woman scratch out chunks of her face to write on the walls with her

blood, seen another wheeled away on a gurney after committing suicide, and had to wear shoes

without laces after two additional women had tried to strangle themselves. Ms. Porter also

revealed that it is not the prison staff but rather the inmates who are responsible for cleaning the

blood and aftermath of an inmate’s “[spiral] down the rabbit hole” (Casella & Ridgeway, 2017).

These stories detailing the conditions of solitary confinement do not reflect a land of the free and

home of the brave; they tell of injustice and torture. ​The implementation of long-term solitary

confinement must be banned in the United States due to the abuse of power, psychological and

physical torture of inmates, and the excessive cost to pointlessly hold prisoners in isolation.
CAGED 4

What is the Box?

Inside the four concrete walls and thick steel doors are a bed, water fountain, sink, and

toilet. The American Civil Liberties Union (ACLU) Report to the United Nations Human Rights

Council (n.d.) states that there isn’t much room for anything else given that most cells are

roughly the size of a parking space. It is in this small space that a minimum of 20,000 inmates

spend 23 hours a day, seven days a week with no human interaction. To ensure that these

prisoners are kept as isolated as possible, they are allowed a total of three personal items: a

religious text, a box of legal text, and 25 letters from friends and family. The only in-person

visits allowed are from lawyers. All others, if allowed at all, must be done via video. To make

matters worse, the inmates are kept not only isolated but deprived of basic comfort, ensured by

the fluctuating temperatures and continuous fluorescent lighting which makes their sense of time

slip even further away (ACLU, n.d.).

Administrative Punishment

The two main types of solitary confinement are administrative and protective. Though the

cells are the same, the reasons that one may be placed in isolation and the amount of time that

one spends in the cell differ greatly. According to Sharon Shalev’s 2008 “A Sourcebook for

Solitary Confinement,” administrative solitary is used to punish the inmates and is supposed to

be enforced for only a set amount of time, determined in a disciplinary hearing. While in punitive

isolation, the inmates are confined to their cells for 23 hours a day, the other hour being isolated

exercise in an indoor concrete cage. Though the restrictions on visitor privileges and personal

belongings vary in different jurisdictions, all solitary inmates are afforded very little freedom and

human interaction (Shalev, 2008). The 2017 Frontline article “Solitary by the Numbers,” written
CAGED 5

by Dan Nolan and Chris Amico, references a 2014-2015 study by Yale Law School and the

Association of State Correctional Administrators that included information gathered from 34

different jurisdictions and represents 73 percent of the United States prison population. Yale

acknowledged the fact that the numbers reported by the Department of Corrections, Department

of Justice, and other government agencies under-represent the actual data concerning how many

prisoners are held in solitary confinement. The study concluded that 76 percent of solitary

inmates are kept in isolation between 15 days and one year, and of this 76 percent, 34 percent are

held in administrative isolation. 14 percent of the other 24 percent of solitary inmates, which are

held for over a year (Nolan & Amico, 2017).

One would think that in order to be sent to solitary confinement, the most severe

punishment that exists in American prisons, an inmate would have to commit an egregious

offense. This, however, is not the case. The Washington Post’s 2019 article “ACLU Sues to End

Solitary Confinement at Two Maximum-Security Prisons in Va.,” describes some of the reasons

that inmates have been subject to the extreme deprivation and isolation that occurs in solitary

confinement. These reasons range from committing serious crimes, such as murder or malicious

wounding to something as small as an inmate using disrespectful language or not shaving their

beard (Jouvenal, 2019). A 2016 report by the United States Department of Justice states that of a

total of 28,834 inmates sent to solitary, nearly 3,800 inmates were sentenced as a result of being

found guilty of an offense such a misusing medication, being unsanitary, or smoking in an

unauthorized area (U.S. Department, 2016).

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Death Row

According to a 2017 survey conducted by The Marshall Project, more states are

beginning to move away from automatic isolation when sentenced to a death penalty. In the

United States, there are 31 states that actively use capital punishment, and of these 31, 20 states

only allow inmates up to four hours outside of the solitary confinement cell. In these 31 states,

there were a total of 2,802 prisoners being held on death row in 2017, about 1,710 of these

inmates are denied any human interaction and confined to a cell for at least 20 hours a day.

Though more and more prisoners, such as Scott Nordstrom (who has been sentenced to death in

Arizona and has since been held in solitary confinement), have opened lawsuits against the state

prison systems, indefinite isolation is still widely used among states with capital punishment.

Nine prisoners in Florida have followed Mr. Nordstorm in taking legal action and have filed a

lawsuit against the Florida Department of Corrections for holding the inmates in isolation for 23

hours a day, allowing only one hour outside of their small concrete cage. Despite the fact that

they may not be a threat to themselves or others, inmates such as Nordstrom are kept in a

concrete cell less than half the size of a parking space and denied any human interaction (Robles,

2017).

Who’s in the Box? Solitary Demographics.

Gender

The 2017 Frontline article “Solitary by the Numbers,” which summarized the study by

Yale, discovered that men are disproportionately affected by solitary confinement. Of the 60,507

people in isolation in 43 different jurisdictions, 59,049 were male while the total amount of

females only equaled 1,458. Five percent of the total male prison population is in solitary, three
CAGED 7

percent higher than the percentage for females (Nolan & Amico, 2017). Solitary confinement

disproportionality affects men, largely due to the fact that many organizations protesting

isolation tend to focus primarily on restrictions for its use on women and juveniles. Men are

often seen as more mentally stable, able to withstand more emotional trauma, such as isolation

and deprivation, leading to their placement in solitary being overlooked.

Race

A 2014-2015 study by Yale Law School revealed that similar to the total prison

population, African Americans hold the highest of the solitary confinement population. White

inmates account for a total of 37 percent of the total prison population and 31 percent of the

population in isolation while black inmates total to 40 percent of the prison population and 45

percent of the population in solitary confinement. Hispanic inmates are the third-highest, making

up 20 percent of the prison population and 21percent of the isolation demographics (Nolan &

Amico, 2017).

Mentally Ill

The ACLU report to the UN Human Rights Council stated that between ten and 20

percent of solitary confinement inmates have a mental illness. These mental illnesses increase the

risk that an inmate will attempt to harm or kill themselves, such as one mentally ill inmate in

Wabash Valley in solitary confinement who died as a result of setting himself on fire (ALCU,

n.d.). A recent report by the SPLC refers to a 2017 report which discovered that 50 percent of

inmates in the state prison system suffered from mental health issues, yet 66 percent had to

receive medical treatment (Bennett, Kizzire, & Tucker, n.d.).

CAGED 8

Disabled and Elderly

According to the Southern Poverty Law Center (SPLC) report “Solitary Confinement:

Inhumane, Ineffective, and Wasteful,” 32 percent of the total United States prison population has

a disability and between 13 and 20 percent are either deaf or hard of hearing. Due to the

country’s total population of the elderly increasing, these percentages will continue to grow as

well. This is a particularly prevalent problem in Florida, which has a high elderly population,

where other prisoners are being assigned as caretakers for those that are either elderly or

disabled. However, when placed in solitary confinement, access to the assistants is denied. In the

eight-foot by ten-foot cell, there is hardly enough room for able-bodied inmates to move around,

a simple task that gets exponentially more difficult if an inmate uses a wheelchair or a walker

(Bennett, Kizzire, & Tucker, n.d., pp. 11-12).

Juveniles

In his 2017 Psychiatry and Law article “Juvenile Solitary Confinement as a Form of

Child Abuse,” Dr. Andrew B. Clark discusses the effect that being held in isolation has on

minors. In 2017 there were approximately 54,000 minors in solitary confinement in the United

States. According to the Office of Juvenile Justice and Delinquency Prevention, just under 50

percent of juveniles in the system reported having been held in isolation for at least four hours.

Authors of a 2010-2012 study of New York jails reported that self-mutilation was primarily

occurring amongst youth to avoid placement in isolation. Of 100 suicides examined, 50 took

place while a minor was isolated in their cell, and 17 were on suicide-watch, and also isolated in

their cell. An Adverse Childhood Experiences study proved a correlation between youth suicide

attempts and attempts later on in life, more stressors during the developmental age leads to a
CAGED 9

higher probability of suicide and self-harm in later years. In 2016, a survey of Juvenile

Correctional Facilities revealed that seven states (Alabama, Georgie, Iowa, Kansas, Michigan,

Texas, and Wyoming) have no limit or restrictions on the use of solitary confinement. However;

15 states, including Virginia, have implemented maximum holding times between six hours and

90 consecutive days (Clark, 2017).

Despite Obama’s adoption of the Department of Justice recommendations to restrict

solitary confinement use, staff members at correctional facilities are likely to disregard

guidelines and continue overusing solitary as a form of administrative punishment. Furthermore,

similar to adult solitary confinement, the juveniles placed in isolation are not the “worst of the

worst” but rather made up largely of disadvantaged persons. Those with disabilities, both mental

and physical, transgender persons, sexual minorities, and racial minorities. However, as more

guidelines and regulations are made, largely as a result of lawsuits brought against states by

inmates held in isolation, these new policies can begin to reduce the number of prisoners in

solitary confinement as well as reducing the amount of time that they are held in isolation (Clark,

2017).

Effects

Mental and Physical Health

The ACLU report to the UN Human Rights Council states that prolonged isolation is

shown to have permanent negative effects on the victims’ mental health. These effects include

mental illnesses such as depression, paranoia, and severe anxiety. These effects are also often

coupled with physical symptoms such as appetite and weight loss, heart palpitations, self-harm,

and headaches. Many inmates kept in solitary have developed increased anger and weakened
CAGED 10

impulse control (possibly making them more violent), insomnia, fatigue, and claustrophobia.

Due to the lack of stimulus in the baren solitary confinement cells, inmates often suffer from

hypersensitivity, hallucinations, and issues with perception both while in the hole and once

released. The horrible conditions these inmates are subject to lead to a lack of empathy and the

ability to communicate and interact with others. Being kept in this severe isolation even changes

the chemical makeup of the inmates’ brains, after only seven days in isolation EEG activity was

shown to decrease. Though these exact effects may not be found in every solitary confinement

inmate, a 2005 ACLU submission to the Supreme Court of the United States stated that every

study of the effects of isolation that involved confinement for more than 60 days showed clear

evidence of negative mental health effects (ALCU, n.d.).

The SPLC’s report “Solitary Confinement: Inhumane, Ineffective, and Wasteful,” states

that there was a 1986 study that 66 percent of all suicides in 401 prisons across the country

occurred in solitary confinement. The report also refers to mental health experts who have agreed

that solitary confinement causes the degradation of mental health, and that the symptoms of

already existing mental illnesses may worsen. It also states while breaking prison rules are one of

the reasons to be sent to isolation, but that this is an infraction that some inmates with mental

health issues cannot help because their illness prevents them from being able to obey the strict

conduct (Bennett, Kizzire, & Tucker, n.d.).

In his 2017 article “Juvenile Solitary Confinement as a Form of Child Abuse,” Andrew

B. Clark discusses the history and severe impact of holding inmates in isolation. Though it was

begun by the Quakers to provide criminals with a period of meditation, the actual effects proved

to be more harmful than helpful. Dr. Clark refers to an 1826 report by Alexis de Tocqueville in
CAGED 11

which he states that complete and prolonged isolation “is beyond the strength of man” and that

“it does not reform, it kills.” Dr. Clark also discusses the findings of studies by Dr. Stuart

Grassian and Dr. Craig Haney, both in which resulted in evidence that solitary confinement leads

to the degradation of one’s mental and physical health and the formation of illnesses such as

paranoia and perception issues. A 1998 study by the National Study of Jail Suicides revealed that

almost 70 percent of all prison suicides occur in the isolation units. Dr. Clark then references

perhaps the most compelling argument to end solitary confinement, its condemnation by the

United Nations. The 2015 revision of United Nations Standard Minimum Rules for the

Treatment of Prisoners, now known as the Nelson Mandela Rules, establishes prolonged

isolation as a form of torture and prohibits its use on those that are mentally ill, juveniles, and the

mentally disabled. Many different mental health and human rights organizations have called for a

ban on solitary confinement, and though the conditions have been improved, the isolation

continues to harm these inmates (Clark, 2017).

Increased Recidivism

The article, “Solitary to the Streets: Studies Find Such Releases Result in Higher

Recidivism Rates, Violent Behavior,” published by Prison Legal News in January of 2018 states

that being placed in solitary confinement increases an inmate’s chances of reoffending.

According to a report from the Texas Legislative Budget Board, the recidivism rates for those

that have been kept in isolation were 12 percent higher than those that were housed in the general

population. After inmates were released in 2006, 49 percent of all prisoners were back in prison

by 2009 as compared to the 61 percent of solitary inmates. A study of Florida prisoners, by

Daniel Mears, a Florida State University professor, revealed that inmates kept in solitary
CAGED 12

confinement were 20 percent more likely to commit a violent crime within three years of their

release than those that were released from the general population (Burton, 2018).

Cost

The SPLC’s report “Solitary Confinement: Inhumane, Ineffective, and Wasteful,”

illustrates how expensive solitary confinement is. In Texas in 2013, it cost 45 percent more to

house an inmate in solitary confinement than it did to place them in the general population. The

average cost per general population inmate was $85.74 a day while the daily cost to keep

someone in isolation was $216.12. In 2010, Mississippi restricted its use of solitary confinement

and drastically reduced its population, resulting in a solitary confinement unit that held 1,000

inmates being closed. By closing this one unit, Mississippi saved $8 million a year, money that

can now be put back into the prison to improve conditions or implement solitary alternatives

(Bennett, Kizzire, & Tucker, n.d., p. 14).

How is this Legal?

The Eighth Amendment

The Constitution of the United States has been the foundation for all of our country’s

rules and regulations since 1789. In 1992, the Eighth Amendment was added, protecting all

American citizens from “cruel and unusual punishment” (U.S. Const., n.d.); however, whether or

not this amendment applies to solitary confinement is still heavily debated. The Eighth

Amendment is used as a basis in many lawsuits arguing the legality of prolonged isolation and

the conditions in solitary confinement. Cases such as ​Porter v. Clark, h​ ave been able to establish

solitary confinement as unconstitutional under the Eighth Amendment (Thomas Porter v. Harold

W. Clarke, 2018, slip op.). After these cases are won and conditions are ruled unconstitutional,
CAGED 13

prison systems are forced to introduce changes, the only issue is that these alterations are just

minimal enough that conditions are changed but not necessarily improved. Due to the fact that

solitary is not the exact same as in previous cases, another lawsuit must be filed to create more

regulations, leading to a decades-long legal fight to truly improve the conditions in isolation

units.

Court Cases

In a United States Supreme Court slip opinion, Justice Sotomayor references the 1890

Supreme Court case ​In re Medley​, 134 U.S. 160, 168, which stated that, after being held in

isolation, inmates became incapacitated, suffering from severe mental strain, and others went so

far as to take their own lives. These inmates did not experience rehabilitation but rather cruel and

unusual punishment that resulted in permanent mental degradation (Johnathan Apodaca v. Rick

Raemisch, 2018, slip op.). Despite the fact that we have been arguing the ethics of solitary

confinement and its detrimental effects on inmates, isolation is somehow still being used as an

administrative punishment technique and costing the lives of thousands.

128 years later, the constitutionality of solitary confinement was brought to the Fourth

District of Virginia Court. In the Memorandum opinion of ​Porter v. Clarke,​ it was stated that the

court found the conditions of death row isolation unconstitutional. The inmates were stored in

cells with a total area of 71 square feet, about the size of half a parking spot. The Court had

previously ruled that the cell windows were “window[s] in name only” and that the few

privileges and human interaction allowed didn’t “mitigate the overwhelming fact of isolation.”

Dr. Michael Hendricks testified that the inmates suffered severe psychological degradation that

was not evident prior to their placement in solitary (Thomas Porter v. Harold W. Clarke, 2018,
CAGED 14

slip op.). The U.S. Circuit Judge James Wynn wrote an opinion that stated that Virginia was

ignorant of the harm that is caused as a result of prolonged isolation. The inmates were kept in

their 71-square-foot cells for 23 to 24 hours a day and only allowed to leave the cell five times a

week for isolated exercise. These inmates experienced severe mental health issues such as

paranoia and hallucinations as a direct result of being held in solitary confinement. The

conditions for death row inmates improved in Virginia a year after this 2018 case, allowing

inmates more out-of-cell time as well as more “privileges” such as basic human interaction with

staff members and family visitors. Though solitary has not been banned in Virginia, the

conditions have improved, allowing the prison system to continue its use of prolonged isolation-

despite the court ruling solitary confinement unconstitutional (Kutner, 2019).

Solutions

Banning the Box

In a 2019 interview, ACLU Stop Solitary Confinement Campaign Strategist, Jessica

Sandoval, stated that so far 28 states have taken steps to end solitary confinement, including a

ban in New Jersey. Of these 28 states, eight have signed legislation into law. The goal of the

ACLU campaign is to end solitary confinement in the United States within 10 years, a feat that

Ms. Sandoval believes is more than possible. This includes a complete ban on solitary for

minors, the elderly, and vulnerable populations such as disabled persons. Though she does agree

that sometimes isolation is necessary for some situations to prevent serious harm to the inmates

and guards, the prison system must use “isolation, not deprivation” (J. Sandoval, personal

communication, November 6, 2019).

CAGED 15

Improving Conditions

The ACLU report to the UN Human Rights Council listed many different

recommendations to improve conditions in isolation. Though the best option would be to not

utilize solitary confinement, if and when it is needed, there are steps that can be taken to lessen

the harmful effects. One of the main causes of the degradation of mental and physical health is

the lack of stimulation and human contact. Due to this, the recommendations to improve

conditions include allowing the inmates in solitary confinement more access to stimuli such as

books, televisions, and radios. This combined with in-cell programs and less restrictive

out-of-cell exercise can lead to decreased mental and physical degradation. To increase human

interaction it is recommended that the inmates have more interaction with the staff, in person

rather than simply through the slot in the steel door, and the ability to earn privileges (ALCU,

n.d.).

Legislation

Mercy Act. ​On February 7, 2017, Obama introduced the Mercy Act to the 115th

Congress to greatly restrict the use of solitary confinement for juveniles. If this legislation were

to pass, the maximum amount of time that a juvenile would spend in isolation would be three

hours. After the three-hour mark juveniles would be brought to a mental health facility or “an

equivalent location that can meet [their] needs” (Mercy Act, 2017). This act would not only limit

the time that juveniles would spend in isolation but also improve the conditions to limit the

amount of deprivation in the cells. These improvements include a large cell space, better utilities

such as lighting, insulation, and plumbing, and ensuring that the cells are suicide-resistant

(Mercy Act, 2017). The provisions in the Mercy Act could greatly decrease the amount of
CAGED 16

trauma, mental and physical consequences, recidivism, and solitary housing costs; however, like

many other solitary confinement bills, it will likely remain pending in Congress for years to

come.

Solitary Confinement Reform Act. ​In April of 2019, the Solitary Confinement Reform

Act was introduced to the 116th Congress. This legislation aims to place restrictions on the use

of solitary confinement in the United States through the appointment of a civil rights

ombudsman, strict regulations for each type of confinement, and more focus on the mental and

physical health of prisoners while they are held in isolation. The Act states that solitary

confinement must always be used only as a last resort when all other options have been

exhausted. To prevent the unprovoked placement of inmates in isolation, a written explanation of

the offense resulting in the use of solitary must be given to the inmate within six hours of their

placement.

Conclusion

The United States of America used to be a shining example of democracy and freedom. A

country founded, in a time of monarchies and widespread religious oppression, on the belief that

a country has the obligation to protect its people and their freedom. Though this freedom can be

taken away by placement in a correctional center, all persons, inmate or not, have basic rights

protected by the Constitution. In solitary confinement, these rights are stripped. Inmates are

psychologically tortured with severe isolation and deprivation of basic human needs. Cases such

as ​In re Medley a​ nd testimonies from inmates like Sarah Jo Pender prove the unconstitutionality

of prolonged isolation. Though the country is beginning to take strides in the direction of

drastically reducing the use of isolation and improving the conditions in solitary when it must be
CAGED 17

implemented, there is still a long way to go. Pending legislation such as the Mercy Act and

Solitary Confinement Act must be enacted in order to introduce probable solutions. Solutions

include sentence maximums, increased mental health regulation, and protective custody units to

decrease the amount of inmates in solitary for their own protection. Solitary confinement only

yields negative results, from the increased cost to the mental and physical degradation of

inmate’s health. In order to protect the lives of countless inmates and truly ensure the rights and

freedoms promised in the Constitution, solitary confinement must be banned for vulnerable

populations and severely restricted for use on other inmates.

CAGED 18

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