June 9, 2012

Senator Durbin and Honorable Members of the Senate:

I have studied indefinite solitary and supermax confinement since 1996 when I began writing
about the Arizona state prison system. My last book, The Law is a White Dog: How Legal
Rituals Make and Unmake Persons (Princeton, 2011), deals with the suffering of prisoners and
the questions of cruel and unusual punishment and due process in such “special management” or
“special housing” units (http://press.princeton.edu/titles/9450.html). Relevant recent articles of
mine deal with the legal evasion of obvious Eighth Amendment violations
(http://bostonreview.net/BR29.5/dayan.php) and the remarkable curtailing of the First
Amendment in a case about a Pennsylvania super-max unit
(http://bostonreview.net/BR32.6/dayan.php).

Last summer, in June 2011, when the more than 2,000 prisoners in California—some of whom
had been in solitary confinement for over 20 years without hope of redress—went on hunger
strike, I wrote an op-ed for the NY Times, called “Barbarous Confinement”
(http://www.nytimes.com/2011/07/18/opinion/18dayan.html). As I have argued over the years,
no matter what claims we make of humane treatment and evolving standards of decency, we are
guilty as a nation of the most horrific treatment of prisoners in the civilized world.

Supermax detention is the harshest weapon in the American punitive armory. The severe
sensory deprivations of the supermax have been repeatedly condemned since the 1980s by the

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United Nations Committee Against Torture, Human Rights Watch, Amnesty International, the
American Civil Liberties Union, and the Center for Constitutional Rights. The UN Convention
Against Torture (May 2006) and the UN Human Rights Committee (July 2006) documented in
detail the torturous psychological effects of this practice. In 2006, as one of its primary
recommendations, the bipartisan US Commission on Safety and Abuse in Prisons called for
substantial reforms to the practice of solitary confinement. Segregation from the general prison
population, it said, should be “a last resort.”

As I write, 400 prisoners in California’s Security Housing Units, as well as a number of
prisoners’ rights organizations, have petitioned the UN asking for help. The Center for
Constitutional Rights (CCR) has filed a federal lawsuit on behalf of prisoners at Pelican Bay
State Prison who have each spent between 10 and 28 years in solitary confinement. Another
class action suit in Arizona now challenges inadequate medical and mental care, as well as
prolonged solitary confinement.

Once, solitary confinement affected few prisoners for relatively short periods of time. Today,
most prisoners can expect to face solitary, for longer periods than before, and under conditions
that make old-time solitary seem almost attractive. The contemporary state-of-the-art supermax
is a clean, well-lighted place. There is no decay or dirt. And there is often no way out. Prisons
in the United States have always contained harsh solitary punishment cells where prisoners are
sent for breaking rules. But what distinguishes the new generation of supermaxes are the
increasingly long time prisoners spend in them, their use as a management tool rather than just
for disciplinary purposes, and their sophisticated technology for enforcing isolation and control.

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This is not the “hole” portrayed in movies like Murder in the First or The Shawshank Rdemption.
Under the sign of professionalism and advanced technology, extreme isolation and sensory
deprivation constitute the “treatment” in these units. As early as 1995, a federal judge, Thelton E.
Henderson, writing about the Special Housing Unit in Pelican Bay, California, conceded that
“supermax” confinement “may well hover on the edge of what is humanly tolerable.” It is now
over that edge. Supermaxes more generally substantially modify inmates’ spatial and temporal
framework, severely damaging their sense of themselves: a terrible violence against the spirit and
a betrayal of our constitutional and moral responsibility to ourselves as a nation and as human
beings.

How much can you take away from a prisoner without running afoul of the law? Solitary
confinement has now been transmuted from an occasional tool of discipline into a widespread
form of preventive detention. Over the last two decades, the Supreme Court has whittled
steadily away at the rights of inmates, surrendering to prison administrators virtually all control
over what is done to those held in “secure segregation.” Since this is not defined as punishment
for a crime, it does not fall under “cruel and unusual punishment,” the reasoning goes.

Officials claim that those incarcerated in these 23-hour lockdown units are “the worst of the
worst.” But it is often the most vulnerable, especially the mentally ill, not the most violent, who
end up in indefinite isolation. Those who are not mentally ill going in can hardly avoid being
mentally destroyed once there. Placement is haphazard and arbitrary; it focuses on those
perceived as troublemakers or simply disliked by correctional officers and, most of all, alleged
gang members. Often, the decisions are not based on evidence. And before the inmates are

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released from isolation into normal prison conditions, they are expected to “debrief,” or spill the
beans on other gang members.

But how can a prisoner debrief if he is not a gang member? Those in isolation can get out by
naming names, but if they do so they will likely be killed when returned to a normal facility. To
“debrief” is to be targeted for death by gang members, so the prisoners are moved to “protective
custody”—that is, another form of solitary confinement.

More seriously still, though, many of these prisoners have been sent to virtually total isolation
and enforced idleness for no crime, not even for alleged infractions of prison regulations. Their
isolation, which can last for decades, is often not explicitly disciplinary and therefore not subject
to court oversight. Their treatment is merely a matter of administrative convenience.

In the summer of 1996, I visited two “special management units” at the Arizona State Prison
Complex in Florence, Arizona. Escorted by deputy wardens, I completed a series of interviews in
an attempt to understand this new version of solitary confinement. There, prisoners are locked
alone in their cells for twenty-three hours a day. They eat alone. Their food is delivered through
a food slot in the door of their eighty square foot cell. They stare at the unpainted concrete, the
windowless walls onto which nothing can be put. They look through doors of perforated steel,
what one officer described to me as “irregular-shaped swiss cheese.” Except for the occasional
touch of a guard’s hand as they are handcuffed and chained when they leave their cells, they
have no contact with another human being.

In this condition of enforced idleness, prisoners are not eligible for vocational programs. They
have no educational opportunities, and books and newspapers are severely limited, post and

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telephone communication virtually non-existent. Locked in their cells for as many as 161 of the
168 hours in a week, they spend most of the brief time out of their cells in shackles, with perhaps
as much as eight minutes to shower. An empty exercise room (twelve feet by twenty feet)—a
high-walled cage with a mesh screening overhead, also known as the “dog pen”--is available for
“recreation.” As an inmate later wrote me, “People go crazy here in lockdown. People who
weren’t violent become violent and do strange things. This is a city within a city, another world
inside of a larger one where people could care less about what goes on in here. This is an
alternate world of hate, pain, and mistreatment.”

Special Management Unit 1 in Arizona was surpassed by Special Management Unit 2 (SMU 2),
completed in 1996. A 768-bed unit, it cost taxpayers $40 million. Given the cost of building
supermaxes, one official in Arizona suggested: ‘Why don’t we just freeze-dry ’em?’ In a Special
Security Unit there, another officer showed me a sign set above photos of prisoners who had
mutilated themselves – row after row of slit wrists, first-degree burns, punctured faces, bodies
smeared with faeces, eyes pouring blood. It read: ‘Idle Minds Make for Busy Hands.’

Situated on forty acres of desert, SMU 2 is surrounded by two rings of twenty-foot-high fence
topped with razor wire, like a nuclear waste storage facility. During my visits there, I learned that
those who have not violated prison rules—often jailhouse lawyers or political activists—find
themselves placed apart from other prisoners, sometimes for what is claimed their own
protection, sometimes for what is alleged to be the administrative convenience of prison
officials, sometimes for baseless, unproven, and generally unprovable, claims of gang
membership.

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In choosing to focus on supermax confinement as a punishment worse than death, my argument
is against the tendency in our courts and in our prisons to reduce constitutional claims to the
most basic terms: bodies emptied of minds, destruction of will, removal of responsibility, and of
everything that defines persons as social beings. Designed for basic needs and nothing more, the
structure of supermaxes dramatizes the minimal requirements of the courts. Awash in natural
light, everything in these units—what can be seen and how, its location and design—coerces in
the most unremitting and damaging way possible. These are locales for perpetual incapacitation,
where obligations to society, the duties of husband, father, or lover are no longer recognized.

We are proud of our history as citizens of the United States. We are a nation of laws. But what
kind of laws? Laws that permit solitary confinement, with cell doors, unit doors, and shower
doors operated remotely from a control center, with severely limited and often abusive physical
contact. Inmates have described life in the massive, windowless supermax prison as akin to
“living in a tomb,” “circling in space,” or “being freeze-dried.” Has the current attention to the
death penalty allowed us to forget the gradual destruction of mind and loss of personal dignity in
solitary confinement, including such symptoms as hallucinations, paranoia, and delusions? It is
to the mind-destroying settings of the supermax penitentiary that I draw your attention, to the
“cruel, inhuman, and degrading” treatment that most often bears no relation to crime. I recall the
words of former Supreme Court Justice Sandra Day O’Connor warning that prisoners’ rights
must be considered: “Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” Justice William Douglas put it more starkly: “Prisoners are still
‘persons’.”

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Two centuries ago, Jeremy Bentham came to believe that solitude was “torture in effect.” Other
nineteenth-century observers, including Charles Dickens and Alexis de Tocqueville, used images
of premature burial, the tomb and the shroud to represent the death-in-life of solitary
confinement. There are now some 25,000 inmates in long-term isolation in America’s supermax
prisons and as many as 80,000 more in solitary confinement in other facilities.

We need to ask not only why this torture continues, but how it has been normalized for an everlarger group of prisoners.

Sincerely,

Colin Dayan
Robert Penn Warren Professor in the Humanities, Vanderbilt University
Member, American Academy of Arts and Sciences

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