by David M. Reutter

Mass solitary confinement in the United States did not develop as a response to violent predators, “but rather as a means for officials to achieve control of political activists and ‘troublemakers’ amongst prisoners.” That conclusion is drawn in an essay by Jules Lobel, the Bessie McKee Walthour Professor of Law at the University of Pittsburgh School of Law, published in August 2020 in the Northwestern University Law Review

Lobel’s essay locates the rise of mass solitary confinement and the construction of new supermax prisons in the 1980s within the context of mass incarceration. The essay begins by explaining that from “the latter part of the nineteenth century until the 1970s and ’80s, prolonged solitary confinement in the United States had fallen into disuse, as numerous observers and the United States Supreme Court recognized that the practice caused profound mental harm to prisoners.”

Its analysis connects “the use of mass incarceration as a form of social control” and concludes that as society became more violent, so did prisons. Yet “to view that violence as the underlying cause of the growth of supermax and other segregated confinement obscures the deeper, underlying causes of the rise of mass solitary.”

Solitary confinement has been given many names by prison officials to make it more palatable to the public and courts. Terms such as restrictive housing, disciplinary segregation, administrative segregation, close management and security housing units have been used to describe it.

In 2000, according to the Bureau of Justice Statistics, there were 80,000 people confined to federal “segregation” units. Between 1995 and 2000, “the growth rate in the number of prisoners housed in segregation far outpaced the growth rate of the overall prison population,” the essay said.

Supermax prisons are based on the model from the Marion Federal Penitentiary, which opened in 1963 to house 525 “adult male felons who are difficult to manage and control.” The prison’s “control unit, featuring prolonged solitary confinement, was created in 1972, but not in response to escalating prisoner violence,” writes Lobel. “Instead, the control unit developed in response to political, nonviolent disturbances, such as protests against guard abuses or prisoner grievances.”

Warden Ralph Aron testified in 1975: “The purpose of the Marion control unit [was] to control revolutionary attitudes in the prison system and the society at large.” As the “Marion Model” was adopted and the “Plantation Model” phased out in Southern prisons, officials used mass solitary and supermax prisons to control “collective activity and radical thought” amongst prisoners.

Mass solitary and supermax confinement has three functions. It imposes long-term, total physical isolation, exerts psychological control with the aim “to break the spirit and resistance of the prisoner,” and it allows officials to protect guards and prisoners from the “pathological predator.” Lobel details statistics that led him to conclude that “as with mass incarceration, mass solitary constitutes a racialized system of control.”

“The Marion experience,” Lobel writes, “illustrates the shift from the disciplinary model of placing people in solitary for determinate periods of time as punishment for specific conduct … to the preventive model of the modern supermax, where prisoners are held in solitary indefinitely as a measure to prevent future violence or disturbances.” With this model came the rise of the “violent prisoner” narrative that is used to bolster prison officials “use of the supermax to reassert officials’ control.”

The author clarifies the California Department of Corrections and Rehabilitation’s (CDRC) former policy of using supermax confinement to house any prisoner based simply on their affiliation or association with a prison gang. “The only practical ways out were to be released from prison, to become an informant, or to die,” writes Lobel. That policy was abandoned after prisoners reached a settlement with CRDC in a federal civil rights action. See Ashker v. Governor of California, Case No. 4:09-cv-05796-CW, U.S.D.C. (N.D. Cal.).

There are “three fundamental flaws” essential to “the reform and elimination of prolonged solitary confinement, Professor Lobel writes.” First, he explains that recent “developments in the fields of psychology, neuroscience, and social science deepened the scientific consensus that prolonged solitary presents a profound risk of devastating mental and physical harm.” Next, he details how the “widely held view in the 1980s and ‘90s that supermax prisons were locking up the worst of the worst turns out to be false.” Finally, proposing “viable alternatives” to supermax for the “relatively small number of truly dangerous, violent prisoners” must continue to be developed.

Using terms such as the “war on terror” or the “war on crime or drugs” to support the preventive paradigm “generally leads to overclassification of so-called dangerousness without clear standards or due process to restrict the state in whom it detains.” CDCR, after more than 25 years, admitted its policy of preventively keeping prisoners associated with gangs in prolonged solitary “was a mistake.”

“Society and the courts are rediscovering the lesson, apparent in the 1800s, that solitary confinement wreaks profound damage to a person’s psychological state.” Mass solitary has resulted in the “discarding of thousands of people whose misconduct does not warrant such treatment.”

The initial program at the Minnesota Correctional Facility at Oak Park Heights was cited as an example of an alternative to mass solitary. That program housed 40 to 50 prisoners in an area of “tight security combined with a positive attitude towards prisoners” while allowing them to comingle while eating, recreating, and working.

“The current reform movement to end prolonged solitary confinement has two major tasks. The first is to demonstrate the risk of harm the draconian practice imposes on those prisoners subjected to it,” writes Professor Lobel. “The second task is to overcome the mythology of the violent predator, for whom prison officials have no alternative but to confine in draconian isolation from other inmates, staff, and even families and friends.”  

Source: Jules Lobel, Mass Solitary and Mass Incarceration: Explaining the Dramatic Rise in Prolonged Solitary in America’s Prisons, 115 Nw. U.L. Rev. 159 (2020)

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