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2015

"I Am Opposed to This Procedure": How Kafka's In
the Penal Colony Illuminates the Current Debate
About Solitary Confinement and Oversight of
American Prisons
Michael B. Mushlin
Pace University School of Law, mmushlin@law.pace.edu

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Recommended Citation
Michael B. Mushlin, "I Am Opposed to This Procedure": How Kafka's In the Penal Colony Illuminates the Current Debate About
Solitary Confinement and Oversight of American Prisons, 93 Or. L. Rev. 571 (2015), available at http://digitalcommons.pace.edu/
lawfaculty/989/.

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2015
VOLUME 93
NUMBER 3

Articles
MICHAEL B. MUSHLIN*

“I Am Opposed to this Procedure”:
How Kafka’s In the Penal Colony
Illuminates the Current Debate About
Solitary Confinement and Oversight of
American Prisons

* Professor of Law at Pace Law School. I express my gratitude to Spencer Lo, Class of
2012, for his deep insights and exceptional help in conceptualizing this paper and for his
thoughtful feedback and suggestions. I also am grateful for the superb assistance of Tara
Hamilton, Class of 2015; Jake Sher, Class of 2016; and Sarah Lusk, Class of 2016, Pace
Law School; and Morris Zarif, Class of 2015, Brooklyn Law School. I presented a version
of this Article at a faculty development session at Pace Law School in July 2014. I am
grateful for the feedback and assistance that I received from my colleagues at that session.
I am also grateful to Cynthia Pittson of the Pace Law Library for her exceptional help to
me in identifying and locating sources necessary for the preparation of this Article. I thank
Professors Don Doernberg, Thomas McDonnell, and Jason Parkin for their assistance. I
also thank my friend Marshall Beil, Esq., for his careful reading of this paper and his
excellent editorial suggestions. Of course, any errors are mine alone.

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Abstract ............................................................................................ 572 
Introduction ...................................................................................... 573 
I.
In the Penal Colony & Franz Kafka ...................................... 576 
A. In the Penal Colony ........................................................ 576 
B. Kafka .............................................................................. 581 
1. The Workers’ Accident Insurance Institute for the
Kingdom of Bohemia in Prague ............................... 585 
2. Kafka’s Work at the Institute ................................... 587 
a. Overview ............................................................ 587 
b. Kafka’s Accident Prevention Work ................... 588 
c. Summary of Kafka’s Professional Work
Experience ......................................................... 593 
II.
In the American Penal System: Solitary Confinement and
Lack of Systematic Oversight ............................................... 597 
A. Solitary Confinement ..................................................... 599 
B. Oversight of American Prisons and Jails ....................... 612 
1. The Absence of Oversight ........................................ 612 
2. Calls for Oversight ................................................... 613 
3. Prison Administrators and Prison Oversight ............ 616 
4. The Impact of Oversight........................................... 618 
5. Summary .................................................................. 625 
III. The Lesson of In the Penal Colony ....................................... 625 
ABSTRACT
This is the 100th anniversary of Franz Kafka’s In the Penal
Colony. The story brilliantly imagines a gruesome killing machine at
the epicenter of a mythical prison’s operations. The torture caused by
this apparatus comes to an end only after the “Traveler,” an outsider
invited to the penal colony by the new leader of the prison, condemns
it. In the unfolding of the tale, Kafka vividly portrays how, even with
the best of intentions, the mental and physical well-being of inmates
will be jeopardized when total control is given to people who run the
prisons with no independent oversight.
At the core of America’s vast prison system is the pervasive
practice of solitary confinement, a practice that in many ways is
analogous to the penal colony machine. Like the machine, it inflicts
great psychological and often physical pain on people subjected to it.
It, like the machine, is used to punish people for trivial offenses
without due process. Like the machine, it is seen as essential to the
operation of this closed prison system. Many of the new leaders of

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American prisons want to reform solitary confinement practices, but
like the new Commandant in Kafka’s tale, without oversight, these
leaders operate in the dark, unable to effectuate meaningful change by
themselves.
Kafka knew what he was talking about. The historic record,
reviewed in this Article, demonstrates that Kafka had a notable legal
career as an attorney at the Workers’ Accident Insurance Institute for
the Kingdom of Bohemia in Prague. In that job he worked on behalf
of industrial workers to open closed worksites to oversight, thereby
improving worker safety and preventing needless accidents. These
experiences gave Kafka a realistic understanding of what can happen
in closed, unregulated institutions such as prisons.
Despite the relevance of In the Penal Colony, Kafka’s voice has
not yet been heard in this debate. This Article is intended to fill that
void and to reveal how Kafka’s profound insights, so artfully crafted
in the powerfully beautiful prose of In the Penal Colony, help us
understand why we must open prison doors to outside scrutiny and
put an end to the gruesome practice that is solitary confinement.
INTRODUCTION

I

1

am opposed to this procedure.” These words, which are spoken by
a traveler to an imaginary prison on an unnamed island, come at a
2
critical moment in Franz Kafka’s masterpiece, In the Penal Colony.
Written a century ago, in the heat of a writing frenzy during the
1 Franz Kafka, In the Penal Colony, in THE METAMORPHOSIS AND OTHER STORIES
125, 148 (Donna Freed trans., Barnes & Noble Books 1996).
2 The story was composed over a two-week period in October 1914, just two months
after the commencement of the First World War, while Kafka was on vacation. CLAYTON
KOELB, KAFKA: A GUIDE FOR THE PERPLEXED 118–19 (2010). The story, one of the few
works of Kafka published during his lifetime, was published five years later in May 1919.
Id. at 56; see also ERNST PAWEL, THE NIGHTMARE OF REASON: A LIFE OF FRANZ KAFKA
386 (1984). This was a time in Kafka’s life of “astonishing” productivity. KOELB, supra
note 2, at 45; see also REINER STACH, KAFKA: THE DECISIVE YEARS 468–69 (Shelley
Frisch trans., Harcourt, Inc. 2005) (2002) (This work claims that when Kafka wrote his
work he “was standing at the threshold of the most productive period of his life . . . a burst
of energy came to him. It was as though a curtain were opening.”). During this time, Kafka
also began work on The Trial, though that work was not published during his lifetime.
KOELB, supra note 2, at 45. There is some slight disagreement about the exact time he
wrote In the Penal Colony. According to another biographer, it was “completed” in
November 1914, not October 1914. RONALD HAYMAN, K: A BIOGRAPHY OF KAFKA 187
(1981). One scholar maintains that Kafka began writing In the Penal Colony on October
15, 1914, and finished it three days later. PAWEL, supra note 2, at 329. Kafka publicly read

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opening days of World War I, the words are a denunciation by the
outsider of a machine that is operated by prison officials to torture,
maim, and kill hapless prisoners. Until that decisive moment, the
current progressive leader of the penal colony—the “new
Commandant”—lacked the power to end the abuse.
Written in another century by an author who had never set foot in
the United States and, as far as research reveals, had never visited a
3
prison, In the Penal Colony is as relevant today as it was when it was
written. The story forcefully recounts the abuse that can occur when
there is unrestricted power over prisoners, no matter how well4
intentioned prison administrators may be. The story also highlights
the importance of external oversight of prisons. In the story, the abuse
that Kafka so vividly and gruesomely describes is only checked when
the closed penal colony is opened to oversight.
America’s prisons need oversight. At the core of America’s vast
5
prison system is the pervasive practice of solitary confinement, a
practice which inflicts great psychological and often physical pain on
6
the people subjected to it. On any given day, at least 80,000 people
are held in these harsh conditions, sometimes for periods that stretch
for years and even decades, where they suffer in cruel and lasting
the work at a literary event at the “avant-garde” art gallery, Goltz, in Munich, Germany,
over the weekend of November 10, 1916. Id. at 350–51. The work was not well received at
that reading. Id. at 351 (noting that the reading of In the Penal Colony itself “from all
accounts, was a calamitous failure”).
3 I have uncovered no evidence that Kafka ever set foot in a prison. However, it is clear
that Kafka was well aware of the abuses inflicted on imprisoned people of the Dreyfus
affair and the penal colonies of French Guiana and Devil’s Island. See HAYMAN, supra
note 2, at 187. At the time Kafka wrote In the Penal Colony, because of the Dreyfus affair,
he “would have already known about the penal colonies of French Guiana and Devil’s
Island.” Id. As one biographer has noted: “Kafka knew that in the civilized modern world
violence was banished to concealed rooms in police stations and prisons, and to colonial
settings far from Europe.” RITCHIE ROBERTSON, KAFKA: A BRIEF INSIGHT 106 (2010).
Other biographies consulted in this research contain no reference to Kafka having visited a
penal facility. See, e.g., MAX BROD, FRANZ KAFKA: A BIOGRAPHY (G. Humphreys
Roberts & Richard Winston trans., 1960); REINER STACH, KAFKA: THE YEARS OF
INSIGHT (Shelley Frisch trans., 2013) (2008); STACH, supra note 2.
4 Almost a century later, teaching a seminar on the rights of prisoners with the thencorrections commissioner of New York City as a guest speaker, it dawned on me that this
story has meaning in the current debate in the United States about the pervasive use of
solitary confinement in American prisons and jails and the current effort to establish
meaningful oversight mechanisms for American penal institutions.
5 The American prison system has expanded at an astonishing rate in the past three
decades. Currently, America imprisons more people—and at a higher per capita rate of
incarceration—than any other country in the world by significant margins. See infra notes
181–82.
6 See infra notes 181–265 and accompanying text.

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7

ways. Despite this, solitary confinement continues to be used on a
8
massive scale. Like the punishment inflicted by the machine in
Kafka’s tale, solitary confinement is inflicted on inmates with little in
9
the way of due process and often for petty reasons; like the machine,
10
it is cruel and torturous; like the old Commandant, its defenders
11
justify the practice as necessary for control and enlightenment.
Absence of oversight is a major reason for the continuation of these
practices. America lacks a comprehensive, organized, and official
prison oversight system, and there is little in the way of unofficial
12
13
access by the press or by interested citizen groups. Although the
leadership of American correctional systems has increasingly become
14
more professional and reform minded than in the past, and some of
these new leaders like the new Commandant want to reform solitary
15
confinement practices, they operate largely in the dark without
16
oversight and, thus, are unable to effectuate meaningful change. In
the shadows it is almost impossible for these professionals to make
progress—even if they want change. With the prison doors securely
shut, what happens behind prison walls remains behind prison walls.
The voice of the public is generally absent. But, like In the Penal
Colony, when the widely recognized public values of decency and
fairness are brought to bear, either through official or unofficial
17
oversight, change begins to take place.

7

See infra notes 181–265 and accompanying text.
See infra notes 181–265 and accompanying text.
9 See infra notes 181–265 and accompanying text.
10 See infra notes 181–265 and accompanying text.
11 See infra notes 181–265 and accompanying text.
12 See Houchins v. KQED, 438 U.S. 1, 3–7 (1978) (holding that the press has no greater
right of access to prisons and jails than citizens, so if citizens are denied access—as they
are routinely—the press may also be denied access).
13 See infra notes 266–84 and accompanying text.
14 See Michael B. Mushlin, From White Plains to Austin: The Road from the Prison
Reform Revisited Conference to the Opening Up a Closed World Conference, 30 PACE L.
REV. 1430, 1434 (2010).
15 See generally Stan Stojkovic, Prison Oversight and Prison Leadership, 30 PACE L.
REV. 1476 (2010).
16 See Margo Schlanger, Civil Rights Injunctions over Time: A Case Study of Jail and
Prison Court Orders, 81 N.Y.U. L. REV. 550, 562 (2006) (“Prison and jail officials were
frequently collaborators in the litigation. If they did not precisely invite it, they often did
not contest it.”).
17 See infra notes 266–84 and accompanying text.
8

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The lessons Kafka provides in In the Penal Colony come from an
author who knew what he was talking about. Contrary to the widely
accepted view, Kafka was not a lowly, little-regarded backroom
bureaucrat. To the contrary, he was a highly accomplished, wellrespected attorney who dedicated his considerable legal talent as a
high-ranking official in a pioneering social reform government
18
agency to improving the safety of workers in industrial settings. In
his work, he saw firsthand that without oversight, workplaces could
be unnecessarily dangerous. To protect vulnerable workers, Kafka
strived to improve the oversight and inspection powers of his agency.
In so doing he saved the lives and bettered the conditions of scores of
workers and injured veterans.
Despite its relevance, however, the insights that Kafka provides in
In the Penal Colony are missing from discussions about American
19
prisons. This Article is intended to redress that imbalance.
This Article proceeds in three parts. Part I briefly recounts the story
that Franz Kafka tells in In the Penal Colony. It also describes the
professional life of Kafka and how that life might have influenced the
story. Part II is a short description of the American prison system with
a focus on two of its most salient features: the massive use of solitary
confinement and the lack of meaningful oversight. This Part also
highlights the positive change that occurs when committed prison
administrators function in an environment in which oversight is
present. Part III brings these two strains together with a discussion of
how Kafka’s profound insights, so powerfully set out in In the Penal
Colony, help us understand why we must open prison doors to outside
scrutiny, and why we must end the rampant use of solitary
confinement in the United States.
I
IN THE PENAL COLONY & FRANZ KAFKA
A. In the Penal Colony
The story takes place on a nameless penal colony. A visitor—
20
Kafka calls him the “Traveler” —has been invited to the colony by

18 See FRANZ KAFKA: THE OFFICE WRITINGS, at ix–x (Stanley Corngold, Jack
Greenberg & Benno Wagner eds., Eric Patton with Ruth Hein trans., 2009) [hereinafter
THE OFFICE WRITINGS].
19 Unlike Kafka, the writings of Charles Dickens have been used in contemporary
discussions of prisons. See, e.g., DICKENS, infra note 203.

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the “new Commandant,” who has recently assumed leadership of the
21
colony. The apparent reason for the invitation is that the new
Commandant wants the Traveler to express his opinion about the
wisdom of a ghastly machine used to torture and kill inhabitants of
22
the penal colony who violate prison rules.
As the story begins, the Traveler is at a “small, deep, sandy valley,
23
closed in on all sides by barren slopes,” accompanied by a person
called the “Officer,” a longtime member of the prison staff. The
Officer, who is captivated with the machine, is in the process of
preparing it to torture and kill an anonymous condemned man whom
we learn has been sentenced to die for the trivial offense of failing to
24
salute a superior at specified times. Although the condemned man
has been taken to the execution machine, he does not know the
25
punishment that awaits him.
The Officer is a firm believer in the torture and death machine and
26
is eager to begin the process of executing the condemned man. The
Officer tells the Traveler that the machine was the invention of the old
27
Commandant of the penal colony, whom the Officer worships. The
28
machine, in the Officer’s words, is “an exceptional apparatus.” It
has three parts: the “bed” upon which the condemned is laid out
naked on his stomach, tied down securely by straps on his hands, feet,
and throat to prevent him from screaming and biting his tongue when
the machine is in use; the “inscriber,” which is programmed to record
“the commandment the condemned man has transgressed”; and “the
harrow,” which slowly carries out the sentence by engraving the law
29
violated on the prisoner’s back.
20 In some translations, the invited guest of the new Commandant is called an
“Explorer.” The German word that Kafka used is “Reisende,” which translates as
“Explorer” or “Traveler.” SHARON SCHUMAN, FREEDOM AND DIALOGUE IN A POLARIZED
WORLD 165 n.5 (2014).
21 Kafka, supra note 1, at 130.
22 Id.
23 Id. at 125.
24 The Officer explains to the Traveler that the condemned man’s offense is that he
failed as ordered to stay awake during the night and to salute the door of the prison Officer
every hour. Id. at 132.
25 Id. at 131.
26 Id. at 130–31.
27 Id. at 127, 130.
28 Id. at 125.
29 Id. at 129–30.

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30

Kafka gives us details about the machine. The inscriber is about
31
two meters (six feet) above the bed. The parts are joined together at
the corners by four brass rods, and they are powered by their own
32
electric batteries. When the prisoner is strapped in securely the
intricate machine is set in motion. Working in unison, the gyrating
parts of the machine are “calibrated precisely” to slowly engrave on
the condemned’s back the rule he is being tortured and killed for
33
violating. Kafka has the Officer relate to the Traveler the horrid
process that unfolds when the machine is set in motion:
When the man is laid down on the bed and it has started vibrating,
the harrow is lowered onto his body. . . . The harrow appears to do
its work in a uniform manner. As it quivers, its points pierce the
body, which is itself quivering from the vibrations of the bed. . . .
And now
anyone can observe the sentence being inscribed on the
34
body.

The machine is designed to inflict its punishment slowly. It takes
twelve hours to kill. At first “the condemned man is alive almost as
35
before, he only suffers pain.” After two hours the strap over the
condemned’s mouth is removed, for at that point “he no longer has
36
the strength to scream.” The turning point comes at the sixth hour.
At around that time it becomes clear to the condemned what is
37
happening. Here is how Kafka has the Officer describe what
happens next:
[H]ow still the man becomes in the sixth hour! Enlightenment
comes to even the dimmest. It begins around the eyes, and it spreads
outward from there—a sight that might tempt one to lie down under
the harrow oneself. . . . [T]he man starts to interpret the writing . . . .
30 In his professional life as an attorney at an office devoted to improving safety in
workplaces, Kafka confronted a machine, which he describes in a memorandum he wrote
in 1910, four years before he wrote In the Penal Colony. That machine bears some
resemblance to the wood-planing machine described in the story. See Franz Kafka,
Measures for Preventing Accidents from Wood-Planing Machines (1910), reprinted in
THE OFFICE WRITINGS, supra note 18, at 109–15 [hereinafter Kafka, Wood-Planing
Machines, referring to the article by Kafka]; see also Richard A. Posner, Kafka: The
Writer as Lawyer, 110 COLUM. L. REV. 207, 213 (2010) [hereinafter Posner, The Writer as
Lawyer] (“The torture-killing machine in ‘In the Penal Colony’ seems a natural extension
of his interest in technology, as manifested in the paper on the wood-planing machines.”).
31 Kafka, supra note 1, at 129.
32 Id.
33 Id.
34 Id. at 133–34.
35 Id. at 135–36.
36 Id. at 136.
37 Id. at 137.

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You’ve seen how difficult the writing is to38decipher with your eyes,
but our man deciphers it with his wounds.

The prisoner dies six hours after the moment of enlightenment,
around the twelfth hour, and the “harrow pierces him clean through
and throws him into the pit, where he’s flung down onto the cotton
wool and bloody water. This concludes the sentence and we, the
39
soldier and I, bury him.”
The Officer explains to the Traveler that during the time of the old
40
Commandant executions using the machine were popular events.
The Officer describes the killings that took place using the machine in
41
an almost festive manner. Kafka lets us know through the Officer’s
42
comments that the old Commandant has died. He has been buried
43
44
on penal colony grounds. The Officer deeply mourns his passing.
We also learn that to the Officer’s regret, the new Commandant has a
45
totally different philosophy of penology. He abhors this horrible
46
machine of death. If the new Commandant had his way, the Officer
47
tells the Traveler, he would not use the machine any longer.
However, despite the new Commandant’s views, and his “very
extensive powers in this penal colony,” he has been unable to rid the
48
colony of the machine. Instead, we learn through the Officer’s bitter
complaints that the new Commandant has made it more difficult to
use the machine efficiently. For example, the new Commandant does
not replace parts when they break, nor does he properly attend to
49
maintenance. These measures only make it more difficult to use the
50
machine; they do not render the machine inoperable.
38

Id. at 138.
Id.
40 Id. at 141.
41 Id. (“As much as a whole day before the event the valley would be packed with
people: They lived just to see it.”).
42 Id. at 127.
43 Id. at 156.
44 Id. at 127.
45 Id. at 138–41.
46 Id. at 127.
47 Id. at 130.
48 Id. at 144; see also Reza Banakar, In Search of Heimat: A Note on Franz Kafka’s
Concept of Law, 22 L. & LITERATURE 463, 470 (2010) (“Although the New Commandant
has the power to stop this barbarous practice, he does not dare to.”).
49 Kafka, supra note 1, at 138.
50 Id.
39

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The Traveler is appalled by “the injustice of the process and the
51
52
inhumanity of the execution,” but initially he does not object. He
hesitates because “[i]f I were to express an opinion it would be the
53
opinion of a private individual.” The Traveler also worries that
because the penal colony is a special place, he should defer to people
54
with more knowledge. Finally, even though he is appalled by the
device, he demurs and says that since he is not a resident of the
55
colony, he has no place ordering anyone to do anything.
As the inevitable approaches, Kafka treats us to a gruesome
56
description of the preparations of the torture machine. He tells us
with awful precision just how the machine will do its work to bring
57
about the excruciatingly slow death of the condemned man. We are
convinced that a terrible act of prison brutality is about to occur. We
brace ourselves for it.
But there will not be an execution of the prisoner after all because
despite his misgivings, when the Officer continues to press him to
give his approval for the use of the machine, the Traveler decides he
must take a stand. “I am opposed to this procedure,” he tells the
58
Officer. The power of those words causes the Officer to halt the
59
process and release the condemned. Because the Traveler speaks his
mind even though he lacks the formal authority, the condemned man
60
is spared a horrific death.
The Officer next places himself in the machine, which he
recalibrates the inscription to read, “be just,” but it malfunctions,
61
killing the Officer. The Traveler then leaves the penal colony. The
62
machine has fallen apart and will no longer be used. The penal
colony has been reformed.

51
52
53
54
55
56
57
58
59
60
61
62

Id. at 139.
Id.
Id. at 144.
Id. at 133.
Id.
Id. at 128–30.
Id.
Id. at 148.
Id. at 149.
Id.
Id. at 150–55.
See id. at 155–57.

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B. Kafka
Kafka, the author of In the Penal Colony, needs little
63
introduction. His piercingly powerful writings, most of which were
64
65
published after his death, have long captured our attention.
Indeed, Kafka is universally ranked as one of the top authors of the
66
modern era. As of 1984, more than 15,000 books and articles
written in most of the world’s great languages had been published
67
about him and his writings. In legal opinions, he has been cited
68
perhaps more than any author. As one scholar put it, “[t]here is no

63 See George Dargo, Reclaiming Franz Kafka, Doctor of Jurisprudence, 45 BRANDEIS
L.J. 495, 497 (2007) (stating that “[n]o author has had more written about him than Kafka”
(quoting W.G. Sebald, Kafka Goes to the Movies)), reprinted in W.G. SEBALD, CAMPO
SANTO 153 (Anthea Bell trans., 2005) (2003).
For a sampling of the law review writings about Kafka, see, e.g., Martha J. Dragich,
Justice Blackmun, Franz Kafka, and Capital Punishment, 63 MO. L. REV. 853 (1998);
Jefferson M. Gray, Franz Kafka: The Office Writings, 56 FED. L. 52 (2009) (book review);
Douglas E. Litowitz, Franz Kafka’s Outsider Jurisprudence, 27 L. & SOC. INQUIRY 103
(2002); Ed Morgan, In the Penal Colony: Internationalism and the Canadian Constitution,
49 U. TORONTO L.J. 447 (1999); Brian Pinaire, The Essential Kafka: Definition,
Distention, and Dilution in Legal Rhetoric, 46 U. LOUISVILLE L. REV. 113 (2007); Parker
B. Potter, Jr., Ordeal by Trial: Judicial References to the Nightmare World of Franz
Kafka, 3 PIERCE L. REV. 195 (2005); Robin West, Authority, Autonomy, and Choice: The
Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner, 99
HARV. L. REV. 384 (1985); Samuel Wolff & Kenneth Rivkin, Essay: The Legal Education
of Franz Kafka, 22 COLUM.-VLA J.L. & ARTS 407 (1998); Banakar, supra note 48;
Posner, The Writer as Lawyer, supra note 30.
64 “Kafka wrote a great deal but published very little.” KOELB, supra note 2, at 72
(citation omitted). Indeed, in his entire lifetime he only published 112,000 words. Id. at
166 n.1. In his life, Kafka “authorized the publication of . . . approximately 40 pieces in
total, many of which are shorter than a single page.” Litowitz, supra note 63, at 115; see
also Elif Batuman, Kafka’s Last Trial, N.Y. TIMES (Sept. 22, 2010), http://www.nytimes
.com/2010/09/26/magazine/26kafka-t.html?pagewanted=all&_r=1&;
Franz
Kafka–
Biography, EUR. GRADUATE SCH., http://www.egs.edu/library/franz-kafka/biography/
(last visited Jan. 2, 2015).
65 Litowitz, supra note 63, at 104 (Kafka is “highly relevant for cutting-edge
movements in legal studies.”).
66 Dargo, supra note 63, at 495. (“There is no end of interest in the work of Franz
Kafka, surely one of the great modernists of our time.”); Litowitz, supra note 63, at 103–
04 (“Kafka is more popular than ever. . . . Although Kafka has been dead for more than 75
years, he is widely recognized throughout Western culture as a ‘representative man’ who
captured the anxieties of the modern age . . . and heralded the emergence of
postmodernism.” (citations omitted)).
67 See PAWEL, supra note 2, at 449.
68 See Pinaire, supra note 63, at 117–18 (examining “1,069 court rulings, orders, and
judgments (450 at the federal level and 619 at the state level), seventy-three Supreme

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69

end of interest in the work of Franz Kafka.” In all of these writings,
there are many lenses critics and scholars have used to view Kafka
70
and his writings.
Court briefs, and 468 articles from legal periodicals, for a total of 1,610 documents” in
which Kafka has been cited in legal proceedings); Potter, Jr., supra note 63, at 195 (“To
date, more than 400 judicial opinions contain references to [Kafka].”); Dargo, supra note
63, at 497 (“The piling up of published writings on this most paradigmatic of twentieth
century authors is surpassed only by the continuing energy emanating from the
fountainhead of modernity itself, William Shakespeare.”); see also Jack Greenberg, From
Kafka to Kafkaesque, in THE OFFICE WRITINGS, supra note 18, at 355 (“A Lexis search of
state and federal courts turns up 245 opinions in state and federal courts that employ
‘Kafkaesque,’ including five in the Supreme Court of the United States.”).
69 Dargo, supra note 63, at 495.
70 Generally, there are three ways that scholars and literary commentators have sought
to interpret Kafka. First, they have interpreted him through the lens of “social allegory,”
using his writings as case studies of modern bureaucracy and its effects on people who are
subjected to its power. Id. at 498 (citing SUSAN SONTAG, AGAINST INTERPRETATION AND
OTHER ESSAYS 8 (1966)). Second, they have interpreted him through “psychoanalytic
allegory,” using his writings as a way of understanding deeply personal relations. Id.
(citing SONTAG, supra note 70). Third, they have interpreted him through “religious
allegory,” seen in his writings’ deeply religious themes. Id. No one has yet or will ever
come up with the “Rosetta Stone” that will unravel the mystery. Indeed, some claim that
Kafka himself “did everything possible to evade interpretation.” HAROLD BLOOM, RUIN
THE SACRED TRUTHS: POETRY AND BELIEF FROM THE BIBLE TO THE PRESENT 171
(Harvard Univ. Press ed. 1989). In the end, given the many ways in which Kafka can be
viewed validly, “any reasonable interpretation” of Kafka may be legitimate. See Theodor
W. Adorno, Notes on Kafka, in HAROLD BLOOM, MODERN CRITICAL VIEWS: FRANZ
KAFKA 95, 95–97 (1986).
The literary criticism of In the Penal Colony is enormous. For scholars who have a
theological perspective on the work, see e.g., Warren Austin, An Exegetical Note on “The
Penal Colony,” 7 S. REV. 363 (1941) (analogizing the storyline of In the Penal Colony to
the turmoil between devout religionists and modern day scientists and humanitarians);
Susanna Klingenstein, In the Penal Colony, in REFERENCE GUIDE TO SHORT FICTION 752,
752–53 (Noelle Watson ed., 1994) (book review) (providing a brief overview of Kafka’s
In the Penal Colony, characterizing the work as the thematic counterpart to Kafka’s The
Trial, with an exclusive focus on judgment and punishment); Erwin R. Steinberg, The
Judgment in Kafka’s “In the Penal Colony,” 5 J. MOD. LITERATURE 492 (1976) (noting
and discussing the various interpretations of In the Penal Colony from a religious
perspective); Russell Samolsky, Metaleptic Machines: Kafka, Kabbalah, Shoah, 19 MOD.
JUDAISM 173 (1999) (exploring Kafka’s literature in the context of the Holocaust,
suggesting that his writings were prophetic of this tragic event); J.D. Thomas, On the
Penal Apparatus of Kafka, 9 C. LITERATURE 64 (1982) (urging that In the Penal Colony
should be interpreted through a theological lens, specifically in the context of the Jewish
religion).
For scholars who have a legal perspective on the work, see e.g., Banakar, supra note 48
(exploring law’s role in Kafka’s fiction, arguing that his writing allows readers to grasp
law as a form of experience, the concept of which is an integral part of the human
condition); James Conant, In the Electoral Colony: Kafka in Florida, 27 CRITICAL
INQUIRY 662 (2001) (equating the electoral process in Florida with a machine, once prized
and flawless, efficiently carrying out justice); Lida Kirchberger, In the Penal Colony or
The Machinery of the Law, in FRANZ KAFKA’S USE OF LAW IN FICTION: A NEW

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INTERPRETATION OF IN DER STRAFKOLONIE, DER PROZESS, AND DAS SCHLOSS 13 (1986)
(analyzing the machine’s use in In the Penal Colony as a metaphor for the law in light of
Rudolf von Jhering’s concept of justice); Scott McClintock, The Penal Colony: Inscription
of the Subject in Literature and Law, and Detainees as Legal Non-Persons at Camp XRay, 41 COMP. LITERATURE STUD. 153 (2004) (discussing the relevance of In the Penal
Colony to the legal and sociological predicaments of suspected terrorists imprisoned at
Guantanamo Bay); Morgan, supra note 63 (discussing the relationship between
internationalism and the Canadian Constitution through the lens of In the Penal Colony).
For scholars who have a psychological perspective on the work, see e.g., Marjorie E.
Rhine, Franz Kafka: The Necessity of Form, 83 MONATSHEFTE 86 (1991) (book review)
(critiquing Corngold’s study of Kafka’s literature, presented in a collection of essays that
attempt to uncover the meaning and motivation behind Kafka’s literature, arguing that In
the Penal Colony “served to repudiate the link between guilt and personal fate”); William
J. Dodd, Kafka and Freud: A Note on In der Strafkolonie, 70 MONATSHEFTE 129 (1978)
(analogizing the overall mechanism of the apparatus in In the Penal Colony, specifically
its clearly distinct parts, to Freud’s scheme of consciousness, the id, ego, and superego);
Peter Dow Webster, “Dies Irae” in the Unconscious, or the Significance of Franz Kafka,
12 C. ENG. 9 (1950) (taking a psychoanalytical approach to interpreting Kafka’s literature,
arguing that much of his writing was fueled by his own neurosis and its “bewildering
consequences”); Kevin S. Yee, In der Freszkolonie: Kafka’s Mouth of Justice, 34
GERMANIC NOTES & REVS. 128 (2003) (In this essay, the author analogizes the three-part
execution of the machine in In the Penal Colony to eating, with its functions serving as a
metaphoric mouth. The author also argues that eating serves as a common theme for the
story, referencing the rice pudding fed to the machine’s victims, and characterizing it as an
eating contest of sorts, the victor decided by both stamina and duration.).
For scholars who have a literary perspective on the work, see e.g., Kurt J. Fickert, The
Failed Epiphany in Kafka’s In der Strafkolonie, 32 GERMANIC NOTES & REVS. 153 (2001)
(discussing the evolution of Kafka’s use of the literary device of “epiphany,” or moment of
inner revelation, in his literature, which the author argues reached a “high point” in In the
Penal Colony); Christine C. Mather, Performance Review, 53 THEATRE J. 491 (2001)
(reviewing Philip Glass, In the Penal Colony (2000)) (This review critiques a chamber
opera created by Philip Glass of In the Penal Colony, adding Kafka as a character to the
production as both an observer and a participant. Mather describes Kafka’s message in In
the Penal Colony as questioning the “horrors” perpetuated out of sentiment and tradition.);
Margot Norris, Sadism and Masochism in Two Kafka Stories: “In der Strafkolonie” and
“Ein Hungerkünstler,” 93 MOD. LANGUAGE NOTES 430 (1978) (This article argues that
there are pornographic elements in Kafka’s In the Penal Colony and The Hunger Artist.
Taken as companion pieces, the author explores the common themes of pain and
embarrassment in each, contending that they suggest sadism and masochism, where
suffering is seen as a means whose end is ultimately pleasure.); ROY PASCAL, KAFKA’S
NARRATORS: A STUDY OF HIS STORIES AND SKETCHES 64 (Leonard Forster et al. eds.,
1982) (In this book, Pascal explores Kafka’s fiction, its numerous interpretations, and its
relationships. Pascal discusses at length the relationship between the Traveler and the
Officer in In the Penal Colony, noting the difficulty in deciphering who serves as the
protagonist, and categorizing their relationship as one of two contrasting ideologies.
However, Pascal points out that the outcome of their “contest” is unclear at the end of the
story.); Malynne Sternstein, Laughter, Gesture, and Flesh: Kafka’s “In the Penal
Colony,” 8 MODERNISM/MODERNITY 315 (2001) (exploring Kafka’s prevalent use of
irony in his literature, and specifically in In the Penal Colony, often in seemingly
inappropriate contexts).

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Kafka was born in Prague in 1883, in what was then the AustriaHungarian Empire, into a middle-class, German-speaking, Jewish
71
family. Except for the last few months of his life, he lived almost
entirely in Prague with his family. He never married, and he died in
1924 at age forty-one, after a long illness caused by tuberculosis and
72
73
severe influenza. He was largely unknown at the time of his death.
Kafka attended a private elementary and secondary school in
Prague; at college, after dabbling in chemistry, he decided to study
74
law. He earned his law degree at age twenty-three in 1906 from
75
Charles University of Prague. Following graduation, he served for a
year as a law clerk in the civil and criminal courts and then, after a
76
year working for an Italian insurance company, took a position at

For scholars who have a colonial perspective on the work, see e.g., Rolf J. Goebel,
Kafka and Postcolonial Critique: Der Verschollene, “In der Strafkolonie,” “Beim Bau der
chinesischen Mauer,” in A COMPANION TO THE WORKS OF FRANZ KAFKA 187 (James
Rolleston ed., 2002) (discussing Kafka’s use of the relationship between metropolitan
centers and their colonial peripherals as a backdrop for three of his works, including In the
Penal Colony); Paul Peters, Witness to the Execution: Kafka and Colonialism, 93
MONATSHEFTE 401 (2001) (exploring the metaphoric references to colonialism in In the
Penal Colony, with a focus on role of the machine in Kafka’s portrayal of colonialism).
71 KOELB, supra note 2, at 12. Prague is now the capital of the Czech Republic. Czech
Republic Profile, BBC NEWS: EUR., http://www.bbc.com/news/world-europe-17220219
(last updated May 23, 2013, 6:11 AM).
72 JANA ČERNA, KAFKA’S MILENA 88 (A.G. Brain & George Gibian trans., 1993).
73 BROD, supra note 3, at 214.
74 Wolff & Rivkin, supra note 63, at 407 (citing PAWEL, supra note 2, at 104 (“[U]pon
matriculating at the Imperial and Royal German Karl-Ferdinand University in Prague . . .
when he was 18 years of age, Kafka embarked . . . upon the study of chemistry, ‘of all
things.’”)). There is no indication that he enjoyed the rigid style of the legal education of
those days and in that place. In fact, there is strong evidence that he found the study of law
distasteful. His first biographer and good friend, Max Brod, reported that in law school
Kafka “felt himself once again drowning in academic miasma; boredom closed in on him
like a cloud of poison gas.” PAWEL, supra note 2, at 109.
75 PAWEL, supra note 2, at 164–65; see also Dargo, supra note 63, at 503–04. Charles
University was located in the Old City of Prague. Kafka attended the law school located in
the “hallowed halls of the Carolinum, the oldest edifice of Central Europe’s first
university.” Id.
76 The company, called the Assicurazioni Generali, was an Italian insurance company
that specialized in transport, marine, and fire insurance. PAWEL, supra note 2, at 175.
Although Kafka was at first “upbeat” about the job, he soon found that “there could be no
hope of accomplishing any creative work of his own” at the position. Id. at 177. Work was
also regimented, and there was little time in it for his writing, so “[a]fter a mere few weeks
he therefore began to look for a more congenial job.” Id. at 178.

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the Workers’ Accident Insurance Institute of the Kingdom of
77
Bohemia where he remained for the rest of his legal career.
It is common to refer to Kafka’s professional life as
inconsequential. He is often portrayed as a petty bureaucrat who
worked in a backward bureau by day so that he could devote all his
78
79
energy to writing at night. The reality, however, is far different.
Kafka decidedly was not a faceless, petty civil servant. To the
contrary, he was an accomplished lawyer who, over the course of a
short but distinguished career, dedicated his considerable talent to the
mission of reducing accidents by addressing dangerous working
80
conditions in industrial settings in his native Bohemia. In his
professional work, Kafka demonstrated, through his actions and
through his office writings and advocacy, a strong belief that
oversight is necessary to prevent harmful things from happening in
81
the organizations with which he dealt.
1. The Workers’ Accident Insurance Institute for the Kingdom of
Bohemia in Prague
The Workers’ Accident Insurance Institute for the Kingdom of
Bohemia was established in 1887, twenty-one years before Kafka
82
began his career there. The office was one of the first workers’
83
compensation offices in the world. It was responsible for the area in
77 THE OFFICE WRITINGS, supra note 18, at ix, xi (When he retired on July 1, 1922, he
had achieved the rank of Obersekretär, or “Senior Secretary,” of the Institute.); PAWEL,
supra note 2, at 423.
78 See, e.g., Wolff & Rivkin, supra note 63, at 411 (asserting that Kafka’s legal work
was “non-taxing,” that he was “unmoved” by it, and that he worked because it allowed
him to write and because it gave him funds on which to live).
79 KOELB, supra note 2, at 55 (“Although it is tempting to imagine Kafka as merely a
minor functionary in the great insurance bureaucracy, the truth is quite different.” (citation
omitted)).
80 See generally Kafka, Wood-Planing Machines, supra note 30, at 109 (recounting the
legal career of Kafka and his extensive efforts to improve safety conditions at work sites).
81 Dargo, supra note 63, at 507–08 (describing Kafka as favoring outside judicial
oversight of unsafe work places).
82 See id. at 504, 506–07.
83 Workers’ compensation, which the office administered, was a major social welfare
program adopted by the Austro-Hungarian Empire. The program was in part “to ward off
growing social discontent” that was developing in the wake of the industrial revolution and
in part out of an altruistic desire to improve the lot of working people who, when injured
while working at dangerous factory jobs, were not compensated for their injuries. Id. at
507. The Austrian program in which Kafka worked was the number three program, ranked

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the Austria-Hungarian Empire that had experienced the greatest
amount of industrialization, making it “the largest and most
influential” of six workers’ compensation offices established in the
84
Empire. When Kafka arrived, the office had 250 employees who
were accountable for overseeing “35,000 industrial enterprises—close
to fifty percent of all the companies required to carry workers’
85
insurance in all of the Austrian lands.”
The office functioned as an insurance program and administrative
86
agency. Employers of covered industries, those with twenty or more
workers, were required to pay a premium to the office calibrated
87
based on the risk of accidents to their employees. The funds
generated by those premiums were used to pay injured workers on a
88
no-fault basis. The agency’s power to set premiums gave incentives
for employers to make their workplaces safer. Workplace
improvements that caused lower rates of accidents would result in
lower premiums because premiums were based on statistical data
89
about the number of accidents in the particular industry. The
Workers’ Accident Insurance Institute also determined the validity of
claims filed by injured workers and gave compensation awards to
90
those workers that had valid claims. Perhaps most importantly, to
reduce industrial injuries, the Institute actively promoted accident

behind Germany and Switzerland, in its “commitment to the new reformist legislation.” Id.
(citing PAWEL, supra note 2, at 183).
84 Dargo, supra note 63, at 508 (citing JEREMY ADLER, FRANZ KAFKA 48 (2001)).
85 Dargo, supra note 63, at 508 (citing PAWEL, supra note 2, at 184). Thus, the agency
handled one-third of the empire’s industrial capacity. Dargo, supra note 63, at 508 (citing
ADLER, supra note 84).
86 There were real issues about which workplaces were covered. See, e.g., Franz Kafka,
Accident Prevention in Quarries (1914), reprinted in THE OFFICE WRITINGS, supra note
18, at 273 [hereinafter Kafka, Accident Prevention] (discussing the imprecise distinction
between agricultural quarries, which were not regulated by the Institute, and commercial
quarries, which were).
87 See Dargo, supra note 63, at 507.
88 Benno Wagner, Kafka’s Office Writings: Historical Background and Institutional
Setting, in THE OFFICE WRITINGS, supra note 18, at 20 (indicating that workmen’s
compensation is “not connected to human fault”).
89 See id. at 24, 31. Kafka worked in what we today would call “risk management.”
Dargo, supra note 63, at 506. Kafka introduced the classification system, whereby
industries with the greatest accident records would have to pay higher insurance
premiums. Id. at 519. The system called for “[m]andatory coverage for industrial
accidents, paid for entirely by employer contributions.” PAWEL, supra note 2, at 183.
90 THE OFFICE WRITINGS, supra note 18, at 27–28.

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prevention improvements. The office preformed various functions
to carry out its mission, including actuarial work using injury
statistics in particular industries to set premiums, adjudication work
processing the appeals of workers denied compensation and of
employers who contended that their premiums were set too high, and
92
accident prevention work. In the course of his career, Kafka
93
performed all of these tasks.
2. Kafka’s Work at the Institute
a. Overview
Kafka initially was hired in 1908 as a temporary employee, but he
94
quickly was given a permanent position. He worked at the office for
fourteen years, resigning in 1922 when he was too ill to continue, a
95
short time before his death. During that time, he rose to prominence
serving as Obersekretär, or senior secretary, of the Prague office
96
during the war years. At the end of his career, he was the equivalent
97
of the general legal counsel for the entire agency.
When Kafka arrived at the Institute, it was in a state of near crisis.
The office had a large deficit, employers were attacking the methods
of setting premiums, the statistical data collection and analysis
methods essential for the office to function properly were poor, and
98
there was concern that workers were filing fraudulent claims. A new

91 PAWEL, supra note 2, at 185 (noting that the office placed “a heavy stress” on “active
and systematic involvement in occupational safety measures and in the prevention of
industrial accidents”).
92 See Gray, supra note 63, at 53.
93 Id.; see also THE OFFICE WRITINGS, supra note 18, at 38–41.
94 KOELB, supra note 2, at 25–26.
95 See id. at 60.
96 THE OFFICE WRITINGS, supra note 18, at ix; see also supra note 77 and
accompanying text.
97 Gray, supra note 63, at 53 (noting that Kafka was the equivalent of the modern
general counsel); see also KOELB, supra note 2, at 25–26 (Kafka went from temporary
assistant to a position of “high responsibility” in which he produced an “impressive
quantity of technical writing.”).
98 THE OFFICE WRITINGS, supra note 18, at 28–32; PAWEL, supra note 2, at 184
(“[T]he institute’s original management team seems to have been strikingly innocent of
actuarial experience or even ordinary business sense.”).

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administrator had just been hired to run the agency. Kafka was
assigned tasks that went “well beyond the routine itinerary of a new
100
clerk.” Within two years of starting work, Kafka was named head
of the appeals unit at a time when the agency was flooded with
appeals from employers challenging the premiums set by the
101
Institute.
Thereafter, Kafka was involved in the full range of the
Institute’s operations, including going to court and actively litigating
102
cases
and serving as the administrative assistant and ghostwriter
103
Of the many tasks and
for the chief administrators of the office.
responsibilities that Kafka undertook, none interested him as much as
104
accident prevention.
b. Kafka’s Accident Prevention Work
Early in Kafka’s career, the director of the Institute was sufficiently
impressed with Kafka that he put him in charge of “the institute’s
105
Doing
pioneer venture into aggressive accident prevention.”
106
In
accident prevention meant that Kafka would visit work sites.
99 The new administrator was Dr. Robert Marschner, “an energetic young professor of
insurance at the Prague Institute of Technology, with whom Kafka had already taken
several specialized courses.” PAWEL, supra note 2, at 184.
100 THE OFFICE WRITINGS, supra note 18, at 36. In addition to writing a speech for the
inaugural ceremony of the new head of the Institute just months after starting work, Kafka
also dealt with a number of “strategic issues” that were an integral part of the new
director’s reforms. Barely four months after he started work, he had written a “long and
intricate essay on workshop insurance in the construction trade.” Id. at 36–37. That he was
chosen for the important task of writing the inaugural speech, in the view of one scholar,
“demonstrates once again [Kafka’s] rapidly achieved status as the public voice of the
comprehensive reforms that Robert Marschner was to initiate as the Institute’s new
director.” Id. at 53.
101 Id. at 38. In that capacity, Kafka was entrusted with a large number of “exemplary
legal cases,” including the criminal prosecution of an orchard and quarry owner. Id. From
all accounts, he discharged his responsibilities in that capacity with skill and dedication.
Id. at ix (describing Kafka as a “brilliant” lawyer).
102 Gray, supra note 63, at 53. For example, Kafka was involved in litigation,
“preparing the agency’s response to a weaving mill’s appeal of its risk classification.” Id.
He also served as “agency counsel in the criminal prosecution of a quarry owner who was
particularly recalcitrant about paying the necessary premiums to insure his workers.” Id.
103 THE OFFICE WRITINGS, supra note 18, at 40; see also Gray, supra note 63, at 53
(“He also effectively functioned as a special assistant to the institute’s director, Dr. Robert
Marschner, and to Eugen Pfohl, the head of the actuarial department, drafting speeches for
both men and lengthy analytical pieces for the institute’s annual report.”).
104 See THE OFFICE WRITINGS, supra note 18, at 40 (The accident prevention work he
did has been called “pioneer[ing] work.”); see also Posner, The Writer as Lawyer, supra
note 30, at 211.
105 PAWEL, supra note 2, at 187.
106 Id. (describing Kafka’s “numerous trips he undertook on behalf of the institute”).

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107

these trips, he went into the backwaters of Bohemia.
As a result,
Kafka, not unlike the Traveler who saw prison abuse, witnessed
firsthand the horrible injuries that could be inflicted on laborers
108
forced by circumstances to work at unsafe worksites. He also saw
the benefits to worker safety that resulted from the oversight efforts of
109
his office, which he aggressively promoted.
Three examples illustrate Kafka’s accident prevention work. The
first involves Kafka’s efforts to improve safety in wood processing
110
plants.
Many of these plants used a machine that had no safety
guards, resulting in horrifying injuries to the workers who operated
the machine—such as lost fingers and severed portions of their
111
hands.
In an effort to prevent this carnage, Kafka conducted a
careful analysis of possible design modifications to make the machine
112
Following that analysis he wrote a report, illustrated in
safer.
113
words and drawings, describing how a worker’s exposure to injury
would be drastically reduced with simple modifications to the
114
machine.

107 See Dargo, supra note 63, at 524. The Institute had a large number of factories and
work sites within its purview and lacked resources to visit each factory. Id. at 519.
Moreover, in some instances employers sought to bar employees of the Institute from
inspecting their work site. See, e.g., Franz Kafka, On the Examination of Firms by Trade
Inspectors (1911), reprinted in THE OFFICE WRITINGS, supra note 18, at 120 [hereinafter
Kafka, Examination of Firms]. Nevertheless, there is clear support for the idea that Kafka
made frequent field trips into industrial Bohemia’s remote towns and villages, and that
these visits “expos[ed] him to the injured and the exploited.” Dargo, supra note 63, at 524;
see also PAWEL, supra note 2, at 183–98.
108 Kafka was affected by what he saw. As Judge Posner put it, Kafka was
“sympathetic to injured workmen and inclined to blame employers for indifference to
safety. . . .” Posner, The Writer as Lawyer, supra note 30, at 211.
109 Dargo, supra note 63, at 508–09 (describing Kafka’s aggressive efforts to use the
powers of his office on behalf of unprotected workers).
110 See Kafka, Wood-Planing Machines, supra note 30, at 109–15. Of all of Kafka’s
office writings, this memo has “garnered the greatest scholarly attention.” THE OFFICE
WRITINGS, supra note 18, at 118.
111 Dargo, supra note 63, at 513 (“The old designs had the blades fixed on a rotating
box which caused horrific injuries when workers caught their hands and fingers in the gaps
created when the box rotated at high speed.”).
112 Kafka, Wood-Planing Machines, supra note 30, at 109–15.
113 This was the first report from the Institute that made use of illustrations. THE
OFFICE WRITINGS, supra note 18, at 116. Illustrations in this context were a “media
innovation” introduced by Kafka. Id. The illustrations were probably done by Kafka
himself. See Dargo, supra note 63, at 513–15.
114 Kafka, Wood-Planing Machines, supra note 30, at 109–15.

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The report, written with “clarity and precision,” contains Kafka’s
graphic description of the machine that caused so much unnecessary
115
injury.
Many assert that this machine is the inspiration for the
torture/killing machine in In the Penal Colony, which he wrote four
116
years later. Kafka’s report makes a compelling case that by altering
the machine with the installation of a “cylindrical safety shaft,” it
117
would dramatically reduce the risk of unnecessary injury.
Kafka
demonstrated through prose and his own drawing how the redesigned
machine, with the safety protections he identified, would be cheaper
118
to install than the old shafts and could be operated at a lower cost.
Kafka wrote this report against the backdrop of resistance to the
idea of workers’ compensation from employers, who argued that
119
oversight was bureaucratic and not needed. Kafka’s advocacy was
geared toward responding to those arguments in a way that displayed
concern for workers’ safety while at the same time not adding to the
120
manufacturer’s cost.
The second example of Kafka’s accident prevention work involves
his effort to improve safety at Bohemian quarries. Believing that the
“Institute could no longer stand idly by” in the face of reports of
unsafe conditions at these quarries, Kafka decided to inspect their
121
conditions and document his findings on behalf of the Institute.
The results of Kafka’s inspections, including his photographs of the
122
quarries,
which showed unsafe conditions, were published in a
report written by Kafka that documented the problems and gave
123
The danger
recommendations for changes in working conditions.
of flying debris was ever present, yet safety goggles that could protect
124
workers from eye injuries were often not used or even issued.
Mining was often done from the bottom up rather than from the top
115

Dargo, supra note 63, at 513–14.
See, e.g., THE OFFICE WRITINGS, supra note 18, at 118.
117 Kafka, Wood-Planing Machines, supra note 30, at 109–15.
118 Id.
119 THE OFFICE WRITINGS, supra note 18, at 117. His advocacy was geared to
responding to those arguments in a way that displayed “a crucial sociopolitical
dimension.” Id. From what we know, it was a success.
120 Id. at 117–18.
121 Kafka, Accident Prevention, supra note 86, at 272–98.
122 Using photographs to illustrate the safety issues at the quarries was an innovation
that Kafka pioneered. Id. at 299 (“Kafka’s extensive use of photography as a source of
information on accident prevention is remarkable.”).
123 See Kafka, Wood-Planing Machines, supra note 30.
124 See Kafka, Accident Prevention, supra note 86, at 280–82.
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125

down, which created the risk of falling stones and rocks.
Making
matters worse, at a number of quarries Kafka found that employers
126
were supplying workers with brandy to drink while they worked.
The high rate of injuries caused by these conditions created “an
urgent need from both a social and a statistical standpoint” for
127
intervention.
Kafka recommended mandating the use of safety
goggles, prohibiting drinking on the job, requiring safer blasting
techniques, cleaning debris from work sites, and quarrying from the
128
top down.
In his report, Kafka recognized that changes would not happen
from mandates alone. Without “frequent and systematic” outside
inspection to ensure that his recommendations were followed, Kafka
wrote that there was little chance that the improvements in safety
129
practices—even if ordered—would be maintained. To be effective
these inspections would have to be “systematic and continuing.”
A third example of Kafka’s accident prevention work is a report
130
that he wrote on behalf of the director of the Institute
to the
125

Id. at 281.
Id. at 278–80.
127 Id. at 273.
128 Id. at 275–82.
129 Id. at 275–76. Kafka also recommended that photographs be a normal part of the
inspections. Id. at 284. Kafka advocated for safety improvements in sugar refineries and
pulp and paper mills. See Dargo, supra note 63, at 513 (citation omitted).
Additionally, Kafka was a passionate advocate for the protection and care of veterans
returning from the bloody battlefields of World War I. During World War I, “one of
Kafka’s chief responsibilities” was “the administration of welfare and medical benefits for
disabled war veterans.” PAWEL, supra note 2, at 332–33. His office was in charge of
assisting returning veterans. Kafka showed his compassion for their plight, recognizing the
damage that the modern machinery of warfare inflicted on soldiers. Id. Writing eloquently
about post-traumatic stress disorder before the syndrome had that name, Kafka said:
Soon after the outbreak of war, a strange apparition, arousing fear and pity,
appeared in the streets of our cities. He was a solider returned from the front. . . .
His body shook without cease, as if he were overcome by a mighty chill, or he
was standing stock-still in the middle of the tranquil street, in the thrall of his
experiences at the front. We see others, too, men who could move ahead only by
taking jerky steps; poor, pale, and gaunt, they leaped as though a merciless hand
held them by the neck, tossing them back and forth in their tortured movements.
Franz Kafka, A Public Psychiatric Hospital for German-Bohemia (1916), reprinted in THE
OFFICE WRITINGS, supra note 18, at 336. Much of the work on this project was a private
initiative by Kafka. See PAWEL, supra note 2, at 333.
130 See Kafka, Examination of Firms, supra note 107. The document is signed by the
director, but there is no doubt that the author is Kafka. See THE OFFICE WRITINGS, supra
note 18, at 141 (stating that the report was “beyond reasonable doubt” written by Kafka).
126

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Minister of the Interior protesting the absence of systematic power to
131
inspect work places. Private employers had successfully lobbied to
prevent the staff of the Institute from regularly visiting their sites, on
132
the ground that inspections threatened trade secrets.
They argued
that private trade inspectors from private trade associations, rather
133
than the Institute, should make these inspections.
Without attacking the good faith of the trade association
134
inspectors,
Kafka proved, through example after example, that
insider inspectors could not be trusted to accurately report on
conditions in the factories and workplaces that they were charged
135
with inspecting. For instance, one report by trade inspectors found
that a brickyard was safe, but it was later discovered that “the
property included some steep embankments” near a road next to a
136
wall, which “threatened to collapse.”
Another report by trade
inspectors said work was powered by an electric motor, which was
safer than steam motors, and that the clay wall at the site was safe, but
137
it was discovered that these claims were not true. Rather, the plant
had a steam motor, not an electric motor, and the clay wall was in fact
138
“steep,” rendering conditions in the yard “adverse.”
The report is
replete with many other equally egregious examples of unsafe
139
practices.
This report, which has been described as a “core document among
140
Kafka’s office writings,”
demonstrates Kafka’s understanding of
the need for outside oversight of closed institutions. Because this was
131

Id. at 120–140.
Id. at 120.
133 Id.
134 Id. at 139.
135 See id. at 120–40.
136 Id. at 138.
137 Id.
138 Id.
139 Id. at 126–30 (discussing statements from inspectors that conflict with accident
statistics). For example: “[t]ime and again, we find similar evaluations that purport to
discover limited machine operation in commercial smokehouses, although the particular
operating conditions of the smokehouses and their accident statistics contradict such an
assumption,” id. at 127; “only certain types of commercial enterprises may be considered
[exempt from coverage] . . . [b]ut in their eagerness to ally themselves with the owners
whenever possible,” the inspectors give this designation to enterprises that are not within
the purview of that exemption, id.; trade inspectors provided information that contradicted
information that the employers themselves submitted, id. at 129; and the information is so
unreliable that “neither the Institute nor the related authorities will ever learn the true
conditions,” id. at 130.
140 Id. at 120.
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lacking, many of the firms covered by the workers’ compensation
laws became “black boxes,” closed to outside, independent
141
viewing.
c. Summary of Kafka’s Professional Work Experience
Kafka’s professional life is anything but that of a petty
142
bureaucrat.
Contrary to accepted wisdom, and Kafka’s complaint
143
the
that his office work was a “dreadful impediment to my life,”
Kafka that emerges from this examination enjoyed his work and took
pride in his job-related successes. He once wrote “the whole world of
144
insurance itself interests me greatly.” There is evidence that Kafka
145
His talent and
was quite proud of his work at the Institute.
contributions were not lost on his supervisors and peers who often
146
praised him in “consistently glowing job evaluations.”
He was
considered so “indispensable” that the government exempted him
from military service during World War I at the request of his
147
superiors. Kafka’s superiors commended him for his “outstanding
zeal,” for being “eminently hardworking,” and for having
148
“exceptional talent” and “devotion to duty.” His peers also valued
his contributions. According to one source, “Herr Doktor Kafka was
highly esteemed as a staff member and universally popular as a
149
person.” Indeed, he was so highly regarded that he was one of the

141

THE OFFICE WRITINGS, supra note 18, at 141.
PAWEL, supra note 2, at 186 (Kafka’s professional work “incisively refute[s] the
caricature of Kafka as a bumbling fool.”).
143 THE OFFICE WRITINGS, supra note 18, at 42; see also id. at x (citing a letter by
Kafka to his fiancée Felice Bauer in 1913, one year before he wrote In the Penal Colony,
complaining that the “writing and office cannot be reconciled”). Kafka often depreciated
aspects of his life. See Posner, The Writer as Lawyer, supra note 30, at 207 (noting that
Kafka “repeatedly expressed loathing for his job at the Institute” (citation omitted)).
144 THE OFFICE WRITINGS, supra note 18, at 20 (“[T]his remarkable confession has
been ignored by Kafka scholarship.”).
145 Further evidence of his pride in his work is that he made it “a regular practice to
send copies [of reports that he wrote to] his friends.” PAWEL, supra note 2, at 186; see also
KOELB, supra note 2, at 26 (“Although he resented the effort it took, he was succeeding in
the office and was proud of what he accomplished there.”).
146 PAWEL, supra note 2, at 186; see also KOELB, supra note 2, at 26 (“He did his job
well, and it was much appreciated by his supervisors.”).
147 PAWEL, supra note 2, at 326.
148 Id. at 186.
149 Id. at 189.
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“very few” Germans working in the office to survive an office purge
150
when the government changed after World War I ended.
Kafka’s peers’ esteem for him was justified. Kafka was a lawyer of
151
“exceptional gifts and exemplary commitments” whose work went
152
“well beyond the routine itinerary of a new clerk.” Even if he had
never written a word of literature, Kafka would have left his mark as a
153
man who had “a most remarkable professional career.”
As one
exhaustive study of Kafka’s professional work concluded, “Kafka
was not a ‘little clerk’ . . . . He was a significant innovator of modern
154
social and legal reform.”
Another leading biographer wrote that
“far from being a nameless cog in a giant engine run amok, he was
from the very beginning in decision-making positions and contributed
his share toward a significant reduction of crippling and fatal
155
accidents in some of Bohemia’s major industries.”
In his professional life, Kafka confronted life’s dark side, seeing
firsthand “the raw reality of wounded, crippled, and killed
156
workers.”
As one scholar put it, “Kafka’s preoccupation [with
157
these issues] . . . was deep and long lasting.” He possessed “strong
progressive sympathies” and was concerned about the “plight of the
158
industrial workers” that he knew firsthand. Throughout his career,
he devoted his legal talent to improving the lot of the “injured and the
159
maimed, the downtrodden and the dispossessed.”
A fair assessment of Kafka’s career is that he made a difference.
Kafka saved many lives and improved livelihoods. For example, his
investigations and report on wood-planing machines resulted in
introducing “such safety measures as cylindrical lathe shafts less
160
inclined to chop off workers’ fingers.”
Because of his advocacy,
150

Id. at 375.
Dargo, supra note 63, at 495; see also Gray, supra note 63, at 54 (Kafka the
professional is an “impressively capable young professional and a passionately idealistic
social reformer.”).
152 THE OFFICE WRITINGS, supra note 18, at 36.
153 Id.; see also PAWEL, supra note 2, at 186 (“His articles, for the most part highly
technical in nature, combine an astonishing grasp of abstruse detail with a lucidity of
presentation seldom encountered in writings of this sort.”).
154 THE OFFICE WRITINGS, supra note 18, at ix.
155 PAWEL, supra note 2, at 189.
156 THE OFFICE WRITINGS, supra note 18, at 36.
157 Dargo, supra note 63, at 503.
158 Id. at 520.
159 Id. at 522; see also PAWEL, supra note 2, at 187 (Kafka had an “instinctive
identification with the underdog.”).
160 THE OFFICE WRITINGS, supra note 18, at x.
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“the lives and limbs of hundreds of workers, especially in the various
161
branches of Bohemia’s dominant lumber industry,” were saved.
And he successfully introduced work rules prohibiting brandy
162
drinking and pipe smoking near dynamite sheds in quarries.
He
also successfully resisted challenges to premiums by “recalcitrant and
163
chicaning” employers.
The story of Kafka’s professional life is the story of a man who
was “an ardent campaigner for improved safety measures for
workers[,] . . . a scrupulous and careful analyst of highly technical
safety problems, and . . . a talented publicist with a real flair for public
164
advocacy and education.”
As a person in key “decision-making
positions,” Kafka contributed “toward a significant reduction of
crippling and fatal accidents in some of Bohemia’s major
165
industries.”
There is no evidence that Kafka knew about prisons or had ever
166
visited one. Yet in his professional life there is no doubt that Kafka
brought to his work a clear understanding of the plight of powerless
people, particularly workers employed in industrial settings who were
subjected to dangerous, life-threatening conditions imposed by
167
employers unconcerned with their well-being.
Kafka’s work
improving conditions in quarries, and his resistance to efforts to
prevent inspections of work sites, also demonstrates a deep
understanding of the role of independent governmental oversight.
Highlighting Kafka’s professional life in this way does not provide
a Rosetta Stone for unlocking the meaning of his stunning oeuvre,
168
though.
There is no single pathway to understand this complex
169
personality and the masterpieces he produced. For example, Kafka

161

PAWEL, supra note 2, at 187.
See THE OFFICE WRITINGS, supra note 18, at x.
163 Id.
164 Gray, supra note 63, at 54.
165 PAWEL, supra note 2, at 189.
166 See supra note 3.
167 See generally Litowitz, supra note 63 (describing Kafka’s concern for the
“situational outsider”).
168 KOELB, supra note 2, at 10 (“There is no Rosetta Stone” for understanding Kafka.).
169 Richard A. Posner, Law and Literature: A Relation Reargued, 72 VA. L. REV. 1351,
1369 (1986) [hereinafter Posner, Law and Literature] (“Kafka’s writings have frequently
been called the literary equivalent of the Rorschach test.”). See supra note 70 and
accompanying text (describing the many ways that Kafka has been interpreted).
162

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was a Jew in a Christian land plagued by anti-Semitism;
he was
raised as a secular Jew, but became enamored with the trappings of
171
he
his faith and mystical aspects of the religion in his adult life;
spoke German in a country in which Czech was the common
172
tongue;
he had an exceptionally difficult and conflicted
173
174
relationship with his father; he was sickly and often ill; he was a
deeply distrustful and neurotic person who had difficulty in
relationships—he was engaged twice to the same person, and once to
175
another, but broke off these engagements and never married;
and
he was conflicted even about his genius and ordered his best friend to
destroy his writings upon his death, many of which had not been
176
published.
177
These aspects of his life all help explain Kafka’s writings. But a
focus on his professional life—dedicated as it was to using his legal
skills to elevate the condition under which politically powerless
people lived—is also an important, though often overlooked, lens
through which to view Kafka generally and In the Penal Colony in
178
particular.
The validity of this approach does not depend upon
proving, or even suggesting, that Kafka wrote In the Penal Colony
with prison reform in mind, or that his primary purpose in writing this

170 See, e.g., Posner, The Writer as Lawyer, supra note 30, at 207 (noting that, in his
professional life, Kafka was “the only Jew in a responsible position in the Institute in a
time and place when anti-Semitism was rife”).
171 KOELB, supra note 2, at 32 (noting Kafka’s intense interest in Yiddish and Eastern
European practices of Judaism).
172 RONALD GRAY, FRANZ KAFKA 29–30 (1973) [hereinafter GRAY, FRANZ KAFKA]
(“He remained a German-speaker of Czech origin in a city where German-speakers were
in a small minority.” (citation omitted)).
173 See, e.g., FRANZ KAFKA, DEAREST FATHER: STORIES AND OTHER WRITINGS (Ernst
Kaiser & Eithne Wilkins trans., 1954) (describing Kafka’s painfully difficult relationship
with his father); KOELB, supra note 2, at 15 (“The bond between father and son—which
was as powerful as it was corrosive—was forged in the sporadic but intense fires of
hyperbolic paternal rhetoric.”).
174 See, e.g., PAWEL, supra note 2, at 111 (noting Kafka’s frequent illnesses both real
and imagined).
175 For a powerful biography describing these relationships, see generally PAWEL,
supra note 2.
176 GRAY, FRANZ KAFKA, supra note 172, at 40.
177 The literature of interpretations of Kafka is vast. See supra note 70 for a partial
listing.
178 See, e.g., Dargo, supra note 63, at 517 (“Kafka imported his life experience into his
literary work.”).

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179

tale was to make a social commentary or achieve a political end.
Rather, the more modest goal of this approach is to demonstrate
Kafka’s record as an attorney who had a great deal of experience with
situations not dissimilar to those facing American prisoners, and that
Kafka, in his professional writings, demonstrated a concern and
compassion for people caught in such circumstances. Put simply,
Kafka was devoted to improving the plight of powerless people
trapped in powerful institutions, and he understood the crucial role
that outside observers can play in that effort. All of this means that
“the impact of [Kafka’s] office writings on his stories and novels
180
should not be underestimated.” With this background, we turn now
to examination of the American penal system and two of its most
salient features: solitary confinement and the lack of oversight.
II
IN THE AMERICAN PENAL SYSTEM: SOLITARY CONFINEMENT AND
LACK OF SYSTEMATIC OVERSIGHT
Kafka could not have known, but in our time America has
181
established the largest penal system in the world.
The growth in
incarceration rates over the past forty years is “historically
182
unprecedented and internationally unique.” Without even counting
juvenile detention facilities and immigration detention centers, the
United States has more than two million adults in its prisons and jails

179 Nevertheless, it is worth noting that In the Penal Colony is one of the few pieces
that Kafka consented to have published during his lifetime. Thus it is within the body of
selections that “he considered his most authentic work.” PAWEL, supra note 2, at 296.
180 THE OFFICE WRITINGS, supra note 18, at x; see also BROD, supra note 3, at 84 (“It
is clear that Kafka derived a great amount of his knowledge of the world and of life . . .
from his experiences in the office [and] from coming into contact with workmen suffering
under injustice.); Dargo, supra note 63, at 524 (stating that “‘[t]here’s no soundproof
concrete wall between Franz Kafka, the lawyer, and Franz Kafka, the writer’” (citation
omitted)).
181 ROY WALMSLEY, INT’L CTR. FOR PRISON STUD., WORLD PRISON POPULATION
LIST 1 (10th ed. 2013), available at http://www.prisonstudies.org/sites/prisonstudies.org
/files/resources/downloads/wppl_10.pdf. (“The United States has the highest prison
population rate in the world, 716 per 100,000 of the national population.”).
182 NAT’L ACAD. OF SCIS., THE GROWTH OF INCARCERATION IN THE UNITED STATES:
EXPLORING CAUSES AND CONSEQUENCES 2 (Jeremy Travis, Bruce Western & Steve
Redburn eds., 2014) [hereinafter THE GROWTH OF INCARCERATION], available at
http://www.jjay.cuny.edu/_images/NAS_report_on_incarceration.pdf.

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183

on any given day.
No other nation in the world comes close to
having as many prisoners in terms of absolute numbers; only the
184
Seychelles, a nation with a population of less than 100,000, has a
185
higher rate of incarceration per capita.
The system is so massive and so unprecedented that a new
vocabulary has arisen to describe it; terms such as “the carceral state,”
“mass incarceration,” or “the prison industrial complex” are now
186
While there is not much well understood about
commonplace.
187
American prisons, two attributes of the system stand out: first, the
183 MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS § 1:1 (4th ed. 2010) (Supp. 2014–
15). At the end of 2012, the United States maintained its position as the world’s leader in
incarceration with approximately 2.2 million individuals confined in the nation’s prisons
and jails, and 1,570,400 of those individuals incarcerated in state and federal prisons. THE
SENTENCING PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS 1–2, available at
http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf.
The combined U.S. adult correctional system, including offenders living in communities
on probation or parole and those held in state or federal custody or local jails, supervised
about 6,937,600 offenders. LAUREN E. GLAZE & ERINN J. HERBERMAN, U.S. DEP’T OF
JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2012 (2013).
184 The Seychelles had a population of 89,173 people as of 2013. Population of
Seychelles, GOOGLE PUB. DATA EXPLORER, http://www.google.com/publicdata/explore
?ds=d5bncppjof8f9_&met_y=sp_pop_totl&idim=country:SYC&hl=en&dl=en
(last
updated Dec. 3, 2014).
185 Highest to Lowest–Prison Population Rate, INT’L CTR. FOR PRISON STUDIES,
http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region
_taxonomy_tid=All (last visited Jan. 2, 2015); see also THE SENTENCING PROJECT, supra
note 183, at 2 (“From 1973 to 2009, the state and federal prison populations that are the
main focus of this study rose steadily, from about 200,000 to 1.5 million, declining slightly
in the following 4 years.”); GLAZE & HERBERMAN, supra note 183, at 1 (0.7% fall in
2012, fourth year in a row).
186 Development of the term “prison industrial complex” is commonly associated with
Professor Mike Davis. See Mike Davis, The Politics of Super Incarceration, in CRIMINAL
INJUSTICE: CONFRONTING THE PRISON CRISIS 73, 73 (Elihu Rosenblatt ed., 1996); see
also Cynthia Chandler, Death and Dying in America: The Prison Industrial Complex’s
Impact on Women’s Health, 18 BERKELEY WOMEN’S L.J. 40, 42 (2003); see, e.g., Marie
Gottschalk, Dismantling the Carceral State: The Future of Penal Policy Reform, 84 TEX.
L. REV. 1693 (2006) (using the term “carceral state”); Willa Payne & Matt Luton, A
Relocation of Prisoner Identity, 10 N.Y. CITY L. REV. 299, 299, 308, 310 (2006) (using the
terms “mass incarceration” and “the prison industrial complex”); Dean Spade et al., Law
Reform and Transformative Change: A Panel at CUNY Law, 14 CUNY L. REV. 21, 22
(2010). In an introduction to a panel discussion with Rickke Mananzala, Soniya Munshi,
Nadia Qurashi, and Elana Redfield, Dean Spade asked “[i]f the prison industrial complex
is an extension of chattel slavery and reform efforts tend to expand its work of racial
violence, how should lawyers seeking to alleviate harms facing imprisoned people do our
work?” Id.
187 See, e.g., THE GROWTH OF INCARCERATION, supra note 182, at 164 (“Concerns
about the accuracy or reliability of official compilations of general criminal justice data—
including data collected in and about the nation’s correctional institutions—are longstanding.”). Certain aspects of the current American prison system, however, are well

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pervasive use of solitary confinement; and second, the lack of a
systematic and effective system of oversight through either formal or
informal mechanisms.
A. Solitary Confinement
America was the first country in the world to institutionalize
solitary confinement as part of the normal operation of its prisons.
188
One might even say that Americans invented solitary confinement.
The current American prison system makes extensive use of
solitary confinement. On any given day, more than 80,000 people

established, and they are not pleasant. These include serious overcrowding, see id. at 159;
prisons placed in remote locations, see, e.g., J.M. Kirby, Graham, Miller, & the Right to
Hope, 15 CUNY L. REV. 149, 164 (2011) (“[P]risons are frequently located in remote rural
areas, far from the primarily impoverished urban communities where prisoners’ friends
and loved ones live.”); prisons lacking sufficient programs and meaningful work
opportunities for many prisoners, see, e.g., Lynn S. Branham, “The Mess We’re In”: Five
Steps Towards the Transformation of Prison Cultures, 44 IND. L. REV. 703, 704 n.3
(2011) (“[W]hile a little over half of the prisoners eligible to work in prison—some are
foreclosed from working for security or medical reasons—have job assignments, the vast
majority of these inmates work in positions geared toward facility operations, such as
janitorial and laundry work, rather than jobs specifically tailored to prepare them for
reentry.” (citation omitted)); and high levels of sexual violence, see THE GROWTH OF
INCARCERATION, supra note 182, at 166. In addition, there is no solid evidence that
prisons have contributed in a significant way to the reduction in crime in the United States.
See Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that
Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163 (2004); see also THE
GROWTH OF INCARCERATION, supra note 182, at 322. Because levels of sexual violence
are so high, the United States Congress passed the Prison Rape Elimination Act. See infra
notes 277–78.
188 See, e.g., Peter Scharff Smith, Solitary Confinement: An Introduction to the Istanbul
Statement on the Use and Effects of Solitary Confinement, 18 TORTURE 56, 57–58 (2008),
available
at
http://solitaryconfinement.org/uploads/TortureJournalVol18No1.pdf
(describing the origins of the modern use of solitary confinement at the end of the
eighteenth and the beginning of the twentieth centuries); see also Stuart Grassian,
Psychiatric Effects of Solitary Confinement, 22 WASH. U. J.L. & POL’Y 325, 328 (2006);
cf. Bruce A. Arrigo & Jennifer Leslie Bullock, The Psychological Effects of Solitary
Confinement on Prisoners in Supermax Units: Reviewing What We Know and
Recommending What Should Change, 52 INT’L J. OFFENDER THERAPY & COMP.
CRIMINOLOGY 622, 623 (2008); Tracy Hresko, In the Cellars of the Hollow Men: Use of
Solitary Confinement in U.S. Prisons and Its Implications Under International Laws
Against Torture, 18 PACE INT’L L. REV. 1, 6 (2006); Elizabeth Vasiliades, Solitary
Confinement and International Human Rights: Why the U.S. Prison System Fails Global
Standards, 21 AM. U. INT’L L. REV. 71, 73 (2005) (describing the origins of solitary
confinement tracing back to eighteenth century prison practices of American Quakers).

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throughout the country are imprisoned in solitary.
Solitary
confinement is a form of imprisonment in which a person is confined
to a cell alone for twenty-three hours each day with virtually no
190
human contact.
The cells are normally equipped with just a bed,
191
Sometimes the doors are
toilet, metal desk, and stationary chair.
192
Windows may or may not be
solid; sometimes they are barred.
193
present in the cells.
All meals are given to inmates in their cells,
194
Sometimes inmates in
usually passed to them through slots.
195
In
solitary are deprived of reading material, radio, and television.
196
some cases lights are left on twenty-four hours per day.
The one hour of out-of-cell time is often spent in solitude in small
197
concrete-walled exercise areas or in individual exercise cages. The
189 JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, COMM’N ON SAFETY AND
ABUSE IN AMERICA’S PRISONS, CONFRONTING CONFINEMENT: A REPORT OF THE
COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 52 (June 2006), available at
http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confinement
.pdf; see generally MUSHLIN, supra note 183.
190 See N.Y. CIVIL LIBERTIES UNION, BOXED IN: THE TRUE COST OF EXTREME
ISOLATION IN NEW YORK’S PRISONS 1 (2012), available at http://www.nyclu.org/files
/publications/nyclu_boxedin_FINAL.pdf.
191 See Solitary Confinement FAQ, SOLITARY WATCH, http://solitarywatch.com/facts
/faq/ (last updated 2012).
192 Id.
193 Id.
194 Id.
195 These kinds of restrictions were upheld by the U.S. Supreme Court in Beard v.
Banks. 548 U.S. 521 (2006). This treatment can have a significant impact. In at least one
case, a prisoner who finally received a television began to hear voices emanating from it
that he thought were speaking directly to him. Atul Gawande, Hellhole, NEW YORKER
(Mar. 30, 2009), http://www.newyorker.com/magazine/2009/03/30 /hellhole.
196 Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). In that case, an inmate
complained about “large florescent lights directly in front of and behind his cell [that]
shone into his cell 24 hours a day.” Id. In that case, the Ninth Circuit held that “‘[t]here is
no legitimate penological justification for requiring [inmates] to suffer physical and
psychological harm by living in constant illumination.’” Id. at 1090 (citing LeMaire v.
Maass, 745 F. Supp. 623, 636 (D. Or. 1990), vacated, 12 F.3d 1444 (9th Cir. 1993)). For
similar examples, see Bull v. Beard, No. 13-CV-592 AJB WVG, 2014 WL 1456285 (S.D.
Cal. Apr. 11, 2014) (sleep deprivation caused by constant illumination); Grenning v.
Miller-Stout, 739 F.3d 1235, 1237–38 (9th Cir. 2014) (alleging lights are so bright as to
deprive inmates of sleep even with “four layers of towel wrapped around his eyes,” and
alleging that lights can give inmates “recurring migraine headaches” that cause pain and
disorientation). As a leading psychiatrist who has studied solitary noted, it is no surprise
that in this environment “the individual’s difficulty in maintaining a normal day-night
sleep cycle is often far worsened by constant intrusions on nighttime dark and quiet, such
as . . . flashlights shining in their face, and so forth.” Grassian, supra note 188, at 332.
197 Angela Browne, Alissa Cambier & Suzanne Agha, Prisons Within Prisons: The Use
of Segregation in the United States, 24 FED. SENT’G REP. 46, 47 (2011).

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individual exercise cages resemble oversized dog kennel cages that
are just large enough for a single person to stand and move about
198
inside.
The other areas are either an open cage outdoors, called a
199
yard, or an indoor area with an open-barred top. Because exercise
areas usually are exposed to the weather, prisoners must choose
whether to use them during extreme weather conditions or remain in
200
their cells.
Periods of extreme weather may greatly reduce the
201
amount of time prisoners are out of the cell.
The pain and suffering caused by solitary has long been known.
202
Charles Dickens, whom Kafka much admired, was shocked by the
impact of solitary on prisoners and condemned it in memorable
language:
I believe that very few men are capable of estimating the immense
amount of torture and agony which this dreadful punishment,
prolonged for years, inflicts upon the sufferers . . . . [T]here is a
198 See Shira E. Gordon, Solitary Confinement, Public Safety, and Recidivism, 47 U.
MICH. J.L. REFORM 495, 497 (2014).
199 Browne, Cambier & Agha, supra note 197.
200 Id. at 200.
201 Id.; see also Prieto v. Clarke, No. 1:12CV1199 LMB/IDD, 2013 WL 6019215, at *1
(E.D. Va. Nov. 12, 2013) (describing recreation in solitary confinement on death row as
“limited to a[n approximately 71 square foot] . . . outdoor cell with a concrete floor and no
exercise equipment” (citation omitted)). For examples of extremes in temperature
exposure, see Bell v. McAdory, No. 12-3138-CSB-DGB, 2014 WL 3907796, at *4 (C.D.
Ill. Aug. 11, 2014) (citing Cameron v. Howes, No. 1:10-CV-539, 2010 WL 3885271, at *9
(W.D. Mich. Sept. 28, 2010), which “dismiss[ed] plaintiffs’ claim for failing to allege
extreme deprivation as a result of inadequate ventilation causing high temperatures in the
cells”); Bull, 2014 WL 1456285, at *4 (claim of 120 degree temperatures “not so extreme
to give rise to an Eighth Amendment violation”); Bennett v. Chitwood, 519 F. App’x 569
(11th Cir. 2013). The Eleventh Circuit affirmed the trial court’s dismissal of the claim and
held that suffering “cold” of “50 degrees” while stripped nude for ten and one-half hours
in the afternoon and evening subsequent to scabies treatment application was not
sufficiently extreme to warrant Eighth Amendment violation, particularly where no
evidence showed that detainee provided notice to jail officials that he was excessively
cold. Id.; Deal v. Cole, No. 3:13-CV-158-RJC, 2013 WL 1190635, at *2 (W.D. N.C. Mar.
22, 2013) (“Plaintiff’s allegations of cold air in his cell, without more, are not sufficiently
objectively serious to state a claim under the Eighth Amendment.”); Strope v. Sebelius,
189 F. App’x 763, 766 (10th Cir. 2006) (“Mr. Strope claims that the prison lacks adequate
ventilation, and that fans are necessary to control the ‘excessively hot’ temperature and to
provide ventilation. He further asserts that the high temperatures make it hard to sleep.
Although these conditions are no doubt uncomfortable, we conclude that Mr. Strope’s
allegations are insufficient to state a claim of violation of the Eighth Amendment.”).
202 See PAWEL, supra note 2, at 159 (describing Kafka’s “profound fascination and
identification with individual writers such as . . . [Charles] Dickens”). “[T]he influence of
Dickens was repeatedly acknowledged by Kafka himself.” Id. at 256.

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depth of terrible endurance in it which none but the sufferers
themselves can fathom, and which no man has a right to inflict upon
his fellow-creature. I hold this slow and daily tampering with the
mysteries of the
brain to be immeasurably worse than any torture of
203
the body . . . .

In our time, Dickens’ opinion that solitary exacts a horrible
psychological toll has become a well-documented truth. We now
know that “when kept under these conditions [of solitary
confinement] for long periods of time, prisoners may experience a
number of psychological problems and mental illnesses, including
self-mutilation, anxiety, panic disorder, difficulty in thinking and
remembering, suicidal tendencies, depression, and impulse control
204
problems.”
These harms are intensified when solitary is imposed,
which is not infrequent, for long periods of time that stretch out to
205
months and even years,
especially when it is inflicted on persons
206
with prior mental illnesses, as is also often the case. Anthony C.

203 CHARLES DICKENS, AMERICAN NOTES FOR GENERAL CIRCULATION 44 (1868);
Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.
115, 118 (2008) (citing id.); see also Madrid v. Gomez, 889 F. Supp. 1146, 1230–31 (N.D.
Cal. 1995) (noting clinical and scientific findings that human beings subjected to isolation
may “deteriorate mentally and in some cases develop psychiatric disturbances”);
Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) (noting that there is a
wealth of literature concerning the detrimental effects of solitary confinement); In re
Medley, 134 U.S. 160, 168 (1890) (“A considerable number of the prisoners fell, after
even a short confinement, into a semi-fatuous condition, from which it was next to
impossible to arouse them, and others became violently insane, others, still, committed
suicide, while those who stood the ordeal better were not generally reformed, and in most
cases did not recover sufficient mental activity to be of any subsequent service to the
community.”).
204 Unlocking the Courthouse Door: Removing the Barrier of the PLRA’s Physical
Injury Requirement to Permit Meaningful Judicial Oversight of Abuses in Supermax
Prisons and Isolation Units, 24 FED. SENT’G REP. 268, 269 (2012). See also Grassian,
supra note 188; John Jay Powers, Head Cases: A Prison Dispatch About Solitary
Confinement, Mental Illness and Drilling a Hole in Your Head, COLO. INDEP. (Apr. 29,
2014), http://www.coloradoindependent.com/147248/head-cases; Michael B. Mushlin,
Breeding Psychotics, N.Y. TIMES (Mar. 27, 2005), http://www.nytimes.com/2005/03/27
/opinion/nyregionopinions/27LImushlin.html?pagewanted=print&position=&_r=0;
Michael B. Mushlin, Solitary Confinement: New York’s Hidden Problem, N.Y. L.J. (Sept.
5, 2012), http://www.newyorklawjournal.com/id=1202570044326/Solitary-Confinement
-New-Yorks-Hidden-Problem?slreturn=20150004105701.
205 See, e.g., Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739 (10th Cir. 2014);
After 4 Decades in Solitary, Dying Angola 3 Prisoner Herman Wallace Freed, Conviction
Overturned, DEMOCRACY NOW (Oct. 2, 2013), http://www.democracynow.org
/2013/10/2/after_4_decades_in_solitary_dying.
206 As many as one-third of the people in solitary are mentally ill. See HUM. RTS.
WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS 147
(2003); Madrid, 889 F. Supp. at 1216 (expert testimony that inmates with existing mental

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Graves, who spent eighteen and one-half years in solitary before
being exonerated, testified before the United States Senate Judiciary
Committee Subcommittee on the Constitution, Civil Rights, and
Human Rights that solitary confinement
breaks a man’s will to live and he ends up deteriorating. He’s never
the same person again. . . . This madness has a ripple effect. It
doesn’t just affect the inmate; it also affects his family, his children,
his siblings and most importantly his mother. . . . It is inhumane . . .
by its design. . . . I am living amongst millions of people in the
world today, but most of the time I feel alone. I cry at night because
of this feeling.
I just want to stop feeling this way, but I haven’t
207
been able to.

Another person held just as long in solitary wrote this poignant
poem:
Imagine being so alone you feel you are surrounded by darkness.
Having so much to say and no one to say it to. So much love to give
yet no one to receive that love.
You want for a normal conversation the way a thirsty man wants for
water in the desert.
You want for human contact, any kind of human contact to remind
you you’re alive.
A letter would be wonderful but it seems all the people in your life
who cared have drifted away like a leaf in an autumn breeze. You
recognize the wrong you have done and often blame yourself for
how bad things are though you
know deep down no one deserves
208
this treatment. Not even you.

health issues are “at a higher risk of deteriorating in the SHU” (citation omitted)); see
generally Grassian, supra note 188.
207 Reassessing Solitary Confinement: Hearing Before the S. Comm. on the Judiciary,
158th Cong., 2012 WL 2314245 (2012) (statement of Anthony C. Graves, Founder,
Anthony Believes), available at http://www.judiciary.senate.gov/imo/media/doc/12-6-19
GravesTestimony.pdf; see also Keynote Address: Five Mualimmak, 20 CARDOZO J.L. &
GENDER 719, 724 (2014) (“[P]eople have always asked me, how did you survive in
solitary for over 40,000 hours? And the truth of the matter is that nobody survives. The
truth of the matter is that you leave with a level of deterioration and it’s just that level of
deterioration that you leave with.”).
208 Voices from Solitary: Reach Out, SOLITARY WATCH (July 24, 2014), http://solitary
watch.com/2014/07/24/voices-solitary-3/. The excerpt comes from a poem by Ricky Silva,
who is currently serving a life sentence at Florida State Prison. Silva, 34, has been held in
solitary confinement for over four years. Id.

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Dr. Atul Gawande, a noted physician and author, wrote in
Hellhole—a seminal piece on solitary published in The New Yorker—
the following about the impact of the experience:
[A]fter months or years of complete isolation, many prisoners
“begin to lose the ability to initiate behavior of any kind—to
organize their own lives around activity and purpose” . . . . “Chronic
apathy, lethargy, depression, and despair often result. . . . In extreme
cases, prisoners
may literally stop behaving,” becoming essentially
209
catatonic.

There are three reasons why an inmate may be placed in solitary
confinement. The first is that solitary is punishment for inmates who
210
have violated a prison rule. Sometimes serious rule infractions are
committed, but other times people are held in solitary for trivial
offenses such as failure to keep a tidy cell, wasting food, or
211
littering.
Other offenses punishable by a stint in solitary
confinement have included the possession of a photocopy of a book
212
213
by George Jackson;
“telephone abuse” (“non-criminal”);
214
protesting after allegedly not receiving a daily lunch tray; writing
215
notes to other inmates or covering cell lighting; or “excess postage
216
In New York, solitary is imposed on inmates for long
stamps.”
periods for similarly minor infractions such as an “untidy cell or
209

Gawande, supra note 195 (citation omitted).
See generally N.Y. CIVIL LIBERTIES UNION, supra note 190.
211 Jacob Zoghlin, Punishments in Penal Institutions: (Dis)-Proportionality in
Isolation, 21 HUM. RTS. BRIEF 24, 25 (2014) (citation omitted).
212 See, e.g., Percelle v. Pearson, No. C12-5343 TEH, 2013 WL 6086918 (N.D. Cal.
Nov. 19, 2013).
213 Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).
214 Franks v. Fridley, No. 13-0561-WS-N, 2014 WL 3540574 (S.D. Ala. July 17,
2014).
215 Ibrahim v. Rouse, No. PJM-08-492, 2011 WL 503115 (D. Md. Feb. 10, 2011).
216 Lashway v. Fischer, 117 A.D.3d 1141 (N.Y. App. Div. 2014).
During the 21-month period from March 2012 through November 2013, a total
of 3,158 adolescent inmates [on Rikers Island in New York City] . . . received a
total of 8,130 infractions, resulting in a total of 143,823 sentence days. Several of
the most common infractions were for non-violent conduct, such as failure to
obey orders from staff (1,671 infractions), verbally harassing or abusing staff
(561 infractions), failure to obey orders promptly and entirely (713 infractions),
and shouting abusive-offensive words (392 infractions). Outside of a correctional
facility, such conduct is often viewed as characteristic adolescent behavior. At
Rikers, this behavior can lead to substantial time in solitary confinement.
U.S. DEP’T OF JUSTICE, CRIPA INVESTIGATION OF THE NEW YORK CITY DEPARTMENT
OF CORRECTION JAILS ON RIKERS ISLAND 49 (2014) (citation omitted), available at
http://www.justice.gov/usao/nys/pressreleases/August14/RikersReportPR/SDNY%20
Rikers%20Report.pdf.
210

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217

person,” “littering,’’ and hundreds more for “unreported illness.”
The second reason solitary may be used is to isolate an inmate, not
because he violated a prison rule, but rather because of his offense,
notoriety, perceived gang affiliation, or his level of dangerousness,
any one of which might be characterized by prison officials as a risk
218
The final reason solitary is
to the general prison population.
imposed in the United States is to separate vulnerable prisoners, such
as transgendered women who are held in male prisons, or inmates
219
threatened by other inmates.
These persons are held in solitary
ostensibly to protect them from attacks from inmates in the general
220
population.
In all of these situations, there is no legal requirement that the
decision to confine prisoners in solitary confinement be subjected to
221
meaningful review. Inmates sent to solitary often have no right to a
due process review, and even when there is a due process right to a
222
hearing, the hearing requirements are minimal and often feckless.
217 Martin F. Horn & Michael B. Mushlin, Reform Prison Isolation, ALBANY TIMES
UNION, http://www.timesunion.com/opinion/article/Reform-prison-isolation-4933317.php
(last updated Oct. 29, 2013, 7:08 AM).
218 See Silverstein v. Bureau of Prisons, 559 F. App’x 739 (10th Cir. 2014); In re Villa,
154 Cal. Rptr. 3d 506 (Cal. Ct. App. 2013), reh’g denied (Apr. 9, 2013) (inmate’s
signature on birthday card of a known gang member and drawings of gang symbols in
inmate’s cell helped validate the classification of the prisoner as a gang “associate”); Ruiz
v. Cate, 436 F. App’x 760, 761 (9th Cir. 2011) (A prison official’s “reliance on evidence
that [defendant] associated with a gang member was reasonably related to legitimate
penological interests.” (citation omitted)); Voices from Solitary: “That Which Does Not
Kill Us. . .,” SOLITARY WATCH (May 19, 2014), http://solitarywatch.com/2014/05/19
/voices-from-solitary-analyzing-isolation-part-iii/.
219 See, e.g., Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking
Segregation of Transgender People in Detention, 18 TEMP. POL. & CIV. RTS. L. REV. 515,
536–47 (2009).
220 AM. BAR ASS’N [ABA], STANDARDS ON TREATMENT OF PRISONERS § 23-2.7(a)(2),
at 52 (3d ed. 2011) [hereinafter ABA STANDARDS], available at http://www.americanbar
.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners
.authcheckdam.pdf (stating that isolation can be used to protect a prisoner from a threat).
221 Lobel, supra note 203, at 115–16, 125–31.
222 Id. at 125–26. (“Yet the trend in prolonged supermax confinement is for the federal
or state government to simply designate certain prisoners for essentially lifetime or very
long solitary confinement. In such cases, the due process requirement of periodic review
becomes meaningless. While prison officials may still go through the formality of
providing review, the decision is predetermined, the review is a sham, and there is nothing
the prisoner can do to get out of solitary confinement.”); see also Donna H. Lee, The Law
of Typicality: Examining the Procedural Due Process Implications of Sandin v. Conner,
72 FORDHAM L. REV. 785 (2004).

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Hearings are not required in many cases because the United States
Supreme Court, in Sandin v. Conner, held that inmates are not
deprived of any “liberty interest” triggering due process protection
unless the deprivation is an “atypical and significant” change in the
223
incidents of ordinary life of a prisoner. In that case the inmate was
placed in solitary confinement for thirty days, but the Court held that
a stay of that duration in solitary confinement was not an atypical and
224
significant hardship.
Several years later in Wilkinson v. Austin, a
case involving indefinite stays in solitary confinement in
“administrative segregation” units, the Supreme Court held that
liberty interests were implicated and due process protections were
225
These decisions left open how long a stay in solitary—
required.
beyond one month and short of indefinite detention—is enough to
226
constitute an “atypical and significant” hardship.
The Supreme
Court has not revisited this issue, leaving it to the lower courts to
227
grapple with the question.
While there is variation among the
228
circuits, the line currently seems to be at about one year. That is to
say, unless an inmate faces the possibility of a stay of a year or more
in solitary, the inmate has no right to a hearing. Thus, courts have
routinely held that placements in solitary confinement for months
229
come without any due process protections.
Even in those cases in which an inmate is sentenced or sent to
solitary for a period long enough to trigger a hearing, the protections
230
that surround the inmate are slight.
Notice can be as short as
231
232
twenty-four hours; there is no guaranteed right to call witnesses;
223

515 U.S. 472 (1995).
Id. at 486.
225 545 U.S. 209, 223–24 (2005).
226 MUSHLIN, supra note 183, § 10:16.
227 Id. (indicating that there is no per se rule, and that courts have not come to rest on
the issue of how long a sentence in disciplinary confinement is required before due process
protections apply).
228 Id.
229 See, e.g., Toston v. Thurmer, 689 F.3d 828, 832 (7th Cir. 2012). The possession of
Huey P. Newton literature available from the prison library may or may not constitute
gang affiliation, but solitary confinement “is a change in the character rather than length of
confinement, and is unlikely to be deemed a deprivation of liberty.” Id.; see also
MUSHLIN, supra note 183, § 10:16.
230 See Wilkinson, 545 U.S. 209; Hewitt v. Helms, 459 U.S. 460 (1983); Wolff v.
McDonnell, 418 U.S. 539 (1974); see also Zoghlin, supra note 211, at 25.
231 Wolff, 418 U.S. at 564.
232 Id. at 566; see also Brown v. Braxton, 373 F.3d 501, 506 (4th Cir. 2004) (noting the
serious administrative burden that the unrestricted right to call witnesses would cause on
the already burdened prison system, given the high caseload volume for prison disciplinary
224

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233

inmates do not have a right to a lawyer at any point; the rights of
234
and the
confrontation and cross examination are not provided;
standard of review is the bare minimum: as long as there is “some
evidence” supporting the decision, there is no due process
235
violation.
For these reasons, the due process review to which
236
inmates are theoretically entitled is, in most cases, illusory.
A representative example of the application of these principles is
237
Barnes v. Holder. In that case, an inmate was placed in a “Drunk
Tank,” a solitary confinement unit, without a hearing for thirty-eight
238
hours for an alleged disciplinary infraction. The inmate claimed his
bedding was removed, he was denied recreation, and he was made to
reside in “subfreezing temperatures,” while the lights remained on for
hearings); Choyce v. Cockrell, 51 F. App’x 483, at *1 (5th Cir. 2002) (“Wolff also
forecloses [appellant inmate’s] argument that the refusal of prison officials to permit him
to call [a prison officer] as a defense witness violated his due process rights.”); Albert v.
Karnes, No. 1:07-CV-0007, 2008 WL 755804, at *1–2, *6–7 (M.D. Pa. Mar. 19, 2008)
(finding that inmate intended to call three witnesses, but ruling that allowing inmate to call
only one of those three did not violate due process).
233 See Wolff, 418 U.S. at 570; Baxter v. Palmigiano, 425 U.S. 308, 314–15 (1976)
(citing Wolff); McGee v. Feneis, No. 07-CV-4868 (PJS/FLN), 2009 WL 2928245, at *8
(D. Minn. Sept. 8, 2009) (citing Wolff and Baxter for the premise that “[p]rison inmates do
not have a right to consult with or be represented by either retained or appointed counsel
during a prison disciplinary hearing”); Barko v. Samuels, No. 91-3346-DES, 1994 WL
747872, at *3 (D. Kan. Jan. 5, 1994) (finding that failure to provide inmate with
representation by an attorney in a disciplinary hearing, even when inmate was permitted
such representation by statute, was “harmless error” under Wolff); see also Substantive
Rights Retained by Prisoners, 41 GEO. L.J. ANN. REV. CRIM. PROC. 1025, 1068 (2012)
(“Prisoners retain a Sixth Amendment right to counsel for criminal prosecutions that occur
while they are incarcerated. That right, however, does not extend to disciplinary actions
and does not apply to administrative segregation based on suspected criminal activity,
unless the prisoner has been charged with a crime.” (citations omitted)).
234 Wolff, 418 U.S. at 567; see also Eugene v. Klecker, 636 F.2d 250, 251 (8th Cir.
1980) (“[W]hile prison officials [can] provide an inmate with the opportunity to confront
and cross-examine his accusors [sic], due process [does] not, under the circumstances,
require it.” (citation omitted)); Wright v. Esgrow, No. 10-CV-6502 CJS, 2013 WL
1826053, at *8 (W.D.N.Y. Apr. 30, 2013) (“[a]n inmate does not possess a constitutional
right to confront or cross-examine witnesses in prison disciplinary hearings” (citing Wolff,
418 U.S. at 567–68)); cf. Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1399 (1st Cir.
1991) (“The discretion of prison officials in such matters is undeniably broad, but it is still
subject to judicial review for abuse.”).
235 See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 447 (1985)
(“[W]here good time credits constitute a protected liberty interest, a decision to revoke
such credits must be supported by some evidence.”).
236 MUSHLIN, supra note 183, § 10:46; Zoghlin, supra note 211, at 25.
237 No. 1:14CV0003 SNLJ, 2014 WL 1478440 (E.D. Mo. Apr. 15, 2014).
238 Id. at *2.

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twenty-four hours per day. The court dismissed his claim, holding
that the inmate’s allegations, even if true, “simply do not rise to the
240
level of a constitutionally protected liberty interest.”
Not infrequently, solitary units are in places where there is an
241
excessive amount of violence.
Craving human contact and driven
irrational by the harsh conditions, people subjected to solitary—many
242
243
of whom are mentally ill,
fragile to begin with, or juveniles —
frequently lash out with strange and belligerent behavior. Selfharming, throwing feces and urine, banging on walls, and shouting
244
are all common occurrences in solitary confinement units. Glenn T.
Turner, who spent almost two decades in solitary confinement in
Wisconsin, wrote:
I’ve seen prisoners who were unable to endure such long terms of
confinement in solitary attempt to commit suicide, smear their fecal
matter over their bodies, cells, and even eat their body waste. I’ve
witnessed them cut themselves, and some who - lacking any sharp
object to cut themselves with, use their teeth to rip their flesh so as
to expose their veins and rip those out to spray their blood all over
their cell doors, windows, floors, etc.
I’ve seen yet others simply cry like unfed, hungry babies all day and
all night, and some lash out yelling and screaming all day, all night,
banging on walls and cell doors, trying to get some form of
239

Id.
Id. at *4–5; see also Philip W. Sbaratta, Sandin v. Conner: The Supreme Court’s
Narrowing of Prisoners’ Due Process and the Missed Opportunity to Discover True
Liberty, 81 CORNELL L. REV. 744, 767 (1996) (noting that the Court “would not look to
state law to implicate due process concerns [e.g., a protected liberty interest] unless the
deprivation at issue is so uncharacteristic that it is beyond what a prisoner would expect
upon being sentenced to prison”); Substantive Rights Retained by Prisoners, supra note
233, at 1063 (“To prevail on such a claim, the prisoner must allege that a prison official
acted knowingly, oppressively, or abusively. Negligent conduct by officials toward
prisoners or their property does not give rise to a procedural due process claim, even if no
remedy exists under state law.” (citations omitted)).
241 See Uncovering Brutality at a New York City Jail, N.Y. TIMES (July 15, 2014),
http://www.nytimes.com/times-insider/2014/07/15/uncovering-brutality-at-a-city-jail/
(providing just one vivid example of pervasive violence in solitary confinement units at
Rikers Island).
242 See Gordon, supra note 198, at 503–04. In a Washington State study, researchers
found that mentally ill prisoners were more than four times more likely than other
prisoners to have been held in solitary confinement. Id. (citing David Lovell et al.,
Recidivism of Supermax Prisoners in Washington State, 53 CRIME & DELINQ. 633, 642
(2007)).
243 The prevalence of juveniles in solitary was criticized in a recent report on Rikers
Island by the U.S. Attorney’s Office in the Southern District of New York. See U.S. DEP’T
OF JUSTICE, supra note 216 and accompanying text.
244 See generally Grassian, supra note 188.
240

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acknowledgement
from their jailers that they are human beings
245
....

The response to these acts of provocation by prison staff often
escalates the violence and chaos of life in solitary confinement
246
Not an atypical reaction by corrections officers to the
units.
desperate acts of isolated inmates is to forcefully extract the
recalcitrant inmate from his cell and then restrain and shackle him
almost in the configuration that prisoners are placed in the
247
torture/killing machine of In the Penal Colony. An example of this
approach is the case of Kevin DeMott, a nineteen-year-old inmate
with bipolar disorder who was confined in a maximum-security
prison in Michigan, sometimes without medication needed to control
248
249
his illness. DeMott began banging his head against the cell wall.
245 Voices from Solitary, supra note 218. Sometimes, shockingly, guards may actually
encourage this behavior. Turner, for example wrote that:
[A mentally ill prisoner in solitary] is often cheered on and encouraged by bored
corrections officers to regress even lower. I’ve witnessed officers [in GBCI’s
new Segregation Unit] encourage a mentally ill prisoner who had smeared feces
all over his control cell window, to lick it off, and they would give him some
milk. And this prisoner licked most of the fecal matter off of the window, and
was “awarded” by the officer who threw an old milk to the prisoner through a
lower trap door to the cell.
Id.; see also Powers, supra note 204 (“John Jay Powers, federal inmate 03220-028, had no
signs of mental illness when he went to prison in 1990.”). Powers, a federal prisoner
convicted of bank robbery and then transferred to the ADX supermax prison in Florence,
Colorado, spent twelve years in extreme isolation. Id. “In solitary confinement 23 hours a
day, he tried to kill himself several times and amputated his fingers, earlobes, his testicle
and scrotum.” Id. After spending time in the general population, an altercation with a
guard landed Powers back in isolation, where he drilled a hole in his head. Id. “I feel like I
am trapped within a disease,” he once wrote. Id.
246 See, e.g., U.S. DEP’T OF JUSTICE, supra note 216 (discussing the pattern and
practice of excessive force and violence at New York City jails on Rikers Island).
247 See Kyle Feldscher, Water Deprivation, Hog-Tying of Mentally Ill Inmate Among
Complaints at Prison Near Ann Arbor, ANN ARBOR NEWS (Sept. 7, 2014, 5:36 AM),
http://www.mlive.com/news/ann-arbor/index.ssf/2014/09/alleged_human_rights_abuses
_at.html (“Witnesses have reported seeing mentally ill prisoners denied water and food,
‘hog tied’ naked for many hours, left to stand, sit or lie naked in their own feces and urine,
denied showers for days and tasered.” (quoting Kary Moss, executive director of the
ACLU of Michigan)).
248 See Jeff Gerritt, Mentally Ill Get Punishment Instead of Treatment, DET. FREE
PRESS (Feb. 5, 2012), http://www.freep.com/article/20120205/OPINION02/202050442
/PUNISHMENT-INSTEAD-OF-TREATMENT-Hundreds-of-Michigan-s-mentally-ill
-inmates-languish-in-solitary-confinement-lost-in-a-prison-system-ill-equipped-to-treat
-them.
249 For a photograph of Mr. DeMott, see id.

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When he refused an order to stop, corrections officers pepper sprayed
250
him, removed him from his cell, and placed a helmet on his head.
They then manacled DeMott in belly chains and leg irons, fastening
251
all of his limbs to a prison bed. Even though mental illness caused
DeMott’s irrational behavior, prison authorities charged him with
disobeying a direct order, a charge that leads to loss of good time and
a longer sentence in solitary confinement, thereby simply repeating
252
the process.
To make matters even worse, there is disturbing
evidence that suggests that solitary is imposed disproportionately on
253
minority inmates, particularly African Americans.
Despite all its problems, the current system of solitary confinement
is not without its defenders. Some claim the practice is beneficial for
inmates because, as the eighteenth-century Quakers—who began
America’s infatuation with solitary—believed, the solitude it imposes
254
provides the inmate opportunities for reflection and enlightenment.
250

Id.
Id.
252 Id. DeMott’s case echoed the death of Timothy Joe Souders in 2006. Souders,
strapped to a steel bed in an isolation cell after resisting prison officers, perished after four
days in his restraints without food, water, or medical treatment. Jeff Gerritt, Neglect in
Custody, A Special Report: Mentally Ill Inmate Dies in Isolation, DET. FREE PRESS (Nov.
25, 2006, 1:57 AM), http://www.freep.com/apps/pbcs.dll/article?AID=/20060820/NEWS
06/111250005; see also The Death Of Timothy Souders (CBS 60 Minutes television
broadcast Feb. 11, 2007), available at http://www.cbsnews.com/news/the-death-of
-timothy-souders/.
Joe Giarratano, currently an inmate at Wallens Ridge State Prison in Virginia, described
the use of shackling in SHU cell extractions at Red Onion Supermax. There, shackling of
prisoners in the course of their confinement is a frequent occurrence:
Often times guards would kick on doors, or refuse to feed someone, and that
would set off some hours of noise. Sometimes guys would just snap and the goon
squad would do a cell extraction. They would gas the cell, rush in with electric
shield [sic], and take the person down hard. That person would wind up strapped
down to a bed.”
Joe Giarratano–Stories from Solitary, ACLU, https://www.aclu.org/prisoners-rights/joe
-giarratano (last visited Jan. 18, 2015); see also Chappell v. Mandeville, 706 F.3d 1052,
1061–63 (9th Cir. 2013) (The Ninth Circuit held that shackling inmates in solitary
confinement may, in some circumstances, be constitutional. In this case, the inmate was
placed in ankle shackles and chained to the bed. He complained that the waist restraints
were not loosened for meals, forcing him to “eat [his] food like a dog.”).
253 Margo Schlanger, Prison Segregation: Symposium Introduction and Preliminary
Data on Racial Disparities, 18 MICH. J. RACE & L. 241, 241 (2013).
254 See, e.g., W. PAUL JONES, A DIFFERENT KIND OF CELL: THE STORY OF A
MURDERER WHO BECAME A MONK (2011). Jones describes the tale of Clayton Fountain,
who reformed himself while in solitary after being sentenced to several life sentences for
five violent murders, four of which he had committed behind bars. Fountain’s spiritual
awakening led to a religious conversion; he ultimately became a hermit and a brother in
the Trappist Order. Id.
251

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In 1833, Alexis de Tocqueville praised solitary confinement at
Eastern State Penitentiary in Pennsylvania for exactly these reasons.
Following an inspection, he wrote:
Can there be a combination more powerful for reformation than that
of a prison which hands over the prisoner to all the trials of solitude,
leads him through reflection to remorse, through religion to hope;
makes him industrious by the burden of idleness, and which, whilst
it inflicts the torment of solitude, makes him find a charm in the
converse of pious men, whom otherwise255
he would have seen with
indifference, and heard without pleasure?

Modern day defenders of solitary also claim that solitary is
256
And, there are
necessary to maintain prison security and safety.
257
those who deny that solitary is harmful.
255 GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY
SYSTEM IN THE UNITED STATES AND ITS APPLICATION IN FRANCE; WITH AN APPENDIX
ON PENAL COLONIES, AND ALSO, STATISTICAL NOTES 51 (1833). For more modern
defenders of solitary based on its redemptive capabilities, even Dickens—who condemned
solitary in eloquent language as unremitting torture—acknowledged that people who
impose it were not necessarily doing it for evil reasons and that in fact, while misguided,
their reasons might be “kind, humane, and meant for reformation.” DICKENS, supra note
203, at 43; see also Jeffrey Smith McLeod, Note, Anxiety, Despair, and the Maddening
Isolation of Solitary Confinement: Invoking the First Amendment’s Protection Against
State Action That Invades the Sphere of the Intellect and Spirit, 70 U. PITT. L. REV. 647,
650 (2009) (“Early in the nineteenth century, Philadelphia Quakers implemented a
program of solitary confinement at the city’s Cherry Hill prison, keeping prisoners in
isolation so that they might ‘reflect on their bad ways, repent, and then reform.’”).
256 ZACHARY HEIDEN, ACLU OF MAINE, CHANGE IS POSSIBLE: A CASE STUDY OF
SOLITARY CONFINEMENT REFORM IN MAINE 20 (2013), available at http://www.aclu
maine.org/sites/default/files/uploads/users/admin/ACLU_Solitary_Report_webversion.pdf
(MDOC Commissioner Martin Magnusson stated at a hearing on prison reform bill LD
1611 before the Joint Committee on Criminal Justice and Public Safety, “[t]his [solitary
confinement reform] bill would seriously jeopardize the health and safety of both staff and
inmates and require substantial additional costs to the Department and the State during a
budgetary crisis. I can tell you with 100% certainty that more of our staff and inmates
would be at serious risk to be injured or killed if this LD was passed.”); Correction Dept.
Adding 300 COs and Tries to Isolate Unstable Cons, CORR. OFFICERS’ BENEVOLENT
ASS’N, INC. (Apr. 9, 2013), http://www.cobanyc.org/correction-dept-adding-300-cos-and
-tries-isolate-unstable-cons#sthash.FEWHKdVm.dpuf (statement of Norman Seabrook,
the president of the Correction Officers Benevolent Association of New York City, that
because jail violence is increasing at an “alarming rate,” solitary is necessary); Gordon,
supra note 198, at 497 (argument of Don Poston, an administrator of the Estelle supermax
prison in Texas, stating, “It’s sad to say, but there are some people who deserve to be
treated like animals.”).
257 See MAUREEN L. O’KEEFE ET AL., COLO. DEP’T OF CORR., ONE YEAR
LONGITUDINAL STUDY OF THE PSYCHOLOGICAL EFFECTS OF ADMINISTRATIVE
SEGREGATION ii (2010) (maintaining that offenders with mental illnesses placed in

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B. Oversight of American Prisons and Jails
1. The Absence of Oversight
Prisoners are under lock and key twenty-four hours a day, seven
days a week, and therefore they must depend on their keepers for all
their human needs. They are held behind walls and closed doors,
258
living “in a shadow world that only dimly enters our awareness.”
American prisons in particular “mainly confine the most powerless
groups . . . poor people who are disproportionally African-American
259
and Latino.” Making matters worse, the United States, unlike most
260
operates “without a comprehensive
other developed countries,
mechanism for the routine inspection and monitoring of all places of
261
confinement.”
Because comprehensive and meaningful oversight does not exist in
most places, the gigantic American prison system, like Kafka’s In the
262
Penal Colony, is isolated from the society it is designed to serve.
The lack of oversight transforms American prisons into a

solitary did not deteriorate over time at a rate more rapid and more extreme than for those
without mental illness).
258 O’Lone v. Estate of Shabazz, 482 U.S. 342, 354 (1987) (Brennan, J., dissenting).
259 GIBBONS & KATZENBACH, supra note 189, at 77.
260 Correctional oversight mechanisms in other developed countries are far more
advanced than in the United States and should serve as models for our prison systems as
we move toward reform. Michael B. Mushlin & Michele Deitch, Opening Up a Closed
World: What Constitutes Effective Prison Oversight?, 30 PACE L. REV. 1383, 1392 (2010).
In the United Kingdom, for example, three governing bodies exist for oversight, and each
performs its own distinct function: (1) a Prison Inspectorate that conducts routine
inspections of all detention facilities; (2) a Prison Ombudsman who investigates prisoners’
complaints; and (3) Independent Monitoring Boards made up of lay citizens who are
appointed to monitor particular facilities. In Canada, the Office of the Correctional
Investigator operates to investigate conditions in Canadian prisons and report its findings
to the public and political officials. In Europe, the forty-seven states (countries) that are
parties to the Council of Europe all operate under the umbrella of the Committee for the
Prevention of Torture and the Inhuman and Degrading Treatment of Prisoners, which is an
intergovernmental treaty body that has the power to inspect and report on the conditions of
any detention facilities in those states. Id. (citations omitted).
261 ABA STANDARDS, supra note 220, § 23-11.3, at 353. See generally, Mushlin &
Deitch, supra note 260, for a comprehensive discussion of the current state of oversight in
the United States.
262 In past instances of prison reform, the media often served as a platform to spark
debate about operations behind prison walls. However, the Supreme Court’s holding in
Pell v. Procunier, that the press has no right of access to prisons or inmates beyond what is
given to the public, severely inhibits the media’s ability to shed light on these inhuman
conditions and thus hinders subsequent transparency to the public. 417 U.S. 817 (1974).

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263

“netherworld.”
In this netherworld, abuses occur, and the public
and even public officials are left ignorant of prison conditions without
the information needed to ensure that the prisons reflect society’s core
264
values. Even well-meaning prison officials, who genuinely want to
effectuate change, cannot succeed because they lack the authority and
265
support that only comes when prisons operate in public view.
2. Calls for Oversight
There have been persistent calls for oversight of American prisons.
The American Bar Association (ABA) has twice gone on record for
the establishment of systematic oversight of American penal
266
facilities.
The ABA Standards for the Treatment of Prisoners,
adopted in 2010, require that a government agency with oversight
responsibilities for each prison and jail in its jurisdiction be
267
established for every prison and jail in the country. The oversight
agency must be independent of the correctional facility it has
oversight responsibility for, and it must “conduct regular monitoring
and inspection of the correctional facilities in that jurisdiction and . . .
issue timely public reports about conditions and practices in those
268
facilities.”
Recognizing that “the inner workings and conditions of
correctional and detention facilities largely are insulated from the
269
public eye,” the ABA also passed a resolution calling for oversight.
This resolution seeks to make prisons more transparent so the public
is no longer “mostly oblivious about conditions in prisons [and] jails
270
. . . even those within their own communities.”
It highlights that
263 Memorandum from Stephen J. Saltzburg, Chair, ABA Section of Criminal Justice,
to ABA House of Delegates (Aug. 2008), available at http://www.americanbar.org
/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_am0810
4b.authcheckdam.pdf.
264 Stojkovic, supra note 15.
265 See Mushlin & Deitch, supra note 260; see also MUSHLIN, supra note 183.
266 STEPHEN J. SALTZBURG, ABA, CRIMINAL JUSTICE SECTION, REPORT TO THE
HOUSE OF DELEGATES 2 (2008) [hereinafter REPORT TO THE HOUSE OF DELEGATES],
available at http://www.americanbar.org/publications/criminal_justice_section_archive
/crimjust_policy_cjpol.html.
267 ABA STANDARDS, supra note 220, § 23-11.3, at 352.
268 Id. § 23-11.3(a).
269 REPORT TO THE HOUSE OF DELEGATES, supra note 266.
270 Id. at 3 (urging federal, state, and territorial governments to establish public
entities—independent from correctional agencies—to regularly monitor and report to the

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key requirements for effective monitoring of prisons should include,
inter alia, that the monitoring entity must be independent, adequately
funded and staffed, have expertise, conduct regularly scheduled and
271
unscheduled inspections, and issue reports on particular problems.
In addition, the ABA specifies that the entity must have access to all
relevant records and the authority to conduct confidential
272
interviews.
After an investigation, it must make those reports
public to the extent possible, have the authority to require prison
administrators to respond publicly to monitoring reports, and develop
273
plans to rectify problems identified in them.
The Commission on Safety and Abuse in America’s Prisons, which
surveyed the state of the American prison system in 2006, also called
274
for a comprehensive system of oversight.
It based this
recommendation on the reality that “[m]ost correctional facilities are
surrounded by more than physical walls; they are walled off from
eternal monitoring and public scrutiny to a degree inconsistent with
275
the responsibility of public institutions.” To rectify this imbalance,
the Commission called on every state to create an independent agency
to monitor prisons and jails and on the federal government to create a
national nongovernmental agency to inspect penal facilities at the
276
request of prison administrators.
Joining the movement for greater oversight, the Attorney General
of the United States, utilizing the power granted under the Prison
Rape Elimination Act (PREA), recently promulgated standards that
call for oversight of virtually all penal institutions in the United
277
States. The standards of PREA aim to ensure that the prisons and
jails receiving federal funding take steps to respond to instances of
sexual abuse of prisoners and take preventative measures against such
278
abuse. Following the recommendation of the National Prison Rape
public on the conditions of correctional facilities operating in their respective jurisdictions,
in an effort to promote transparency and accountability into the operations at these
facilities).
271 Id. at 1–2.
272 Id. at 10.
273 Id.
274 GIBBONS & KATZENBACH, supra note 189.
275 Id. at 15.
276 Id. at 16, 79.
277 Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601–15609 (2012).
278 Id. §§ 15601–15602. The Prison Rape Elimination Act was enacted by Congress in
2003 to address the problem of sexual abuse of persons in custody of U.S. correctional
agencies, including private and public institutions housing both adult and juvenile
offenders, as well as community-based agencies. The Act addresses both inmate-on-

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279

Elimination Commission (NPREC) in 2009, the Attorney General
decided that beginning in August 2013, compliance with PREA
standards required audits of all confinement facilities covered under
the PREA at least every three years. These audits are necessary for
the facilities to be considered compliant with PREA standards, with
one-third of the facilities operated by an agency—or private
280
organization on behalf of an agency—audited each year.
These
include adult prisons and jails, juvenile facilities, lockups (housing
detainees overnight), and community confinement facilities, whether
operated by the Department of Justice or a unit of a state, local,
281
corporate, or nonprofit authority.
This oversight, when
implemented, will be a significant change, but it is very limited in its
scope by focusing on only one problem.
Both the ABA and the Commission on Safety and Abuse in
America’s Prisons also recognize the added importance of opening
inmate sexual abuse and staff sexual misconduct. The major provisions of PREA include a
zero tolerance standard for inmate sexual assault and rape; the development of standards
for detection, prevention, reduction, and punishment for prison rape; the collection and
dissemination of information of incidents of prison rape; and the award of grants to help
state and local governments implement the Act.
Under PREA, the Bureau of Justice Statistics (BJS) is required to carry out a
comprehensive statistical review and analysis of incidents and effects of prison rape for
each calendar year. The review and analysis must be based on a random sample of no less
than ten percent of all federal, state, and county prisons; a representative sample of
municipal prisons; and include at least one prison from each state. The BJS must utilize
surveys and other statistical studies of current or former inmates and ensure the
confidentiality of each survey participant. To comply with these requirements, the BJS
developed the National Prison Rape Statistics Program (NPRSP), which is comprised of
four separate data collection efforts designed to collect multiple measures on the incidence
and prevalence of sexual assault, including the Survey of Sexual Violence, the National
Inmate Survey, the National Survey of Youth in Custody, and the National Former Prison
Survey. Each survey operates as an independent effort which together allow for a deeper
understanding of sexual victimization in correctional facilities. Id. §§ 15601–09; see also
Prison Rape Elimination Act (Sexual Violence in Correctional Facilities), BUREAU OF
JUSTICE STATISTICS, http://www.bjs.gov/index.cfm?ty=tp&tid=20 (last visited Jan. 26,
2015).
279 NATIONAL
PRISON RAPE ELIMINATION COMMISSION REPORT (2009)
(recommending “detailed” and “robust” oversight in order to “open up” prisons to review
of their efforts to fight sexual abuse), available at https://www.ncjrs.gov/pdffiles1/226680
.pdf; see also Dara Lind, After 11 Years, States are Finally Committing to Fight Prison
Rape, VOX, http://www.vox.com/2014/5/20/5731152/states-prison-rape-PREA-certifica
tion-standards-11-years (last updated May 20, 2014, 10:20 AM).
280 NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT, supra note 279, at
87–88.
281 Id. at 3.

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prisons to public view through unofficial, nongovernmental means.
Because “[t]he heightened public awareness resulting from prison and
jail visits will result in improvements in conditions and
282
operations,”
the ABA standards are calling on government to
“encourage and accommodate” visits to prison facilities by “judges
and lawmakers and by members of faith-based groups, the business
community, institutions of higher learning, and other groups
283
interested in correctional issues.”
The Commission on Safety and Abuse in America’s Prisons took a
similar position. Recognizing that oversight also includes the
involvement of an engaged citizenry, the Commission urged that
prisons should be open to visits by citizens and organized groups, and
that the media should be given broad access to what happens inside
prisons, including having access to facilities, prisoners, and
284
correctional data.
Thus, these groups stress that oversight visits,
such as what occurred in In the Penal Colony, play a critical function
to prevent or expose abuses.
3. Prison Administrators and Prison Oversight
Without oversight, and the public support that it provides, even
prison administrators with the best of intentions are not able to
285
achieve substantive sustainable reform.
One notable example
recounted by Dean Norval Morris is the story of Captain Alexander
Maconochie, the captain who, in the 1840s, unsuccessfully attempted
to implement major reforms to the barbaric practices at the Australian
286
prison colony on Norfolk Island.
Captain Maconochie quickly
287
abandoned his reform efforts due to a lack of outside support. So
too was the fate of Thomas Mott Osborne, who became the warden of
Sing Sing Prison with a reform agenda, but whose efforts were
288
overturned.
More recent examples include the experience of the
282

ABA STANDARDS, supra note 220, § 23-11.2, at 351.
Id. § 23-11.2(e), at 348.
284 GIBBONS & KATZENBACH, supra note 189.
285 See Barbara Attard, Oversight of Law Enforcement is Beneficial and Needed—Both
Inside and Out, 30 PACE L. REV. 1548 (2010); Andrew Coyle, Professionalism in
Corrections and the Need for External Scrutiny: An International Overview, 30 PACE L.
REV. 1548 (2010); Stojkovic, supra note 15.
286 NORVAL MORRIS, MACONOCHIE’S GENTLEMEN: THE STORY OF NORFOLK ISLAND
AND THE ROOTS OF MODERN PRISON REFORM (2002).
287 Id.
288 See Thomas Mott Osborne, ENCYCLOPEDIA BRITANNICA, http://www.britannica
.com/EBchecked/topic/433764/Thomas-Mott-Osborne (last visited Jan. 3, 2015).
283

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leaders of the penal system of New York City. Despite their efforts,
violence against inmates on Rikers Island, the penal island of N.Y.C.,
289
has reached epidemic proportions.
These examples suggest that progressive prison administrators who
wish to bring positive change must embrace prison oversight. Stan
Stojkovic, a prison administrator trainer, has urged prison
administrators to take this approach. He wrote that “[w]ithout
adequate oversight, correctional problems compounded. Issues like
correctional health care, prison crowding, prison violence, and the
290
management of prisons become almost impossible to address.”
Over the last three decades, a new breed of prison administrators,
291
those seeking to create change, has emerged.
These people are
more professional than past administrators, who all too often were
“good ol’ boys who were recruited through a system of patronage,
292
and all but ignored by governors and legislatures.”
Speaking
293
broadly, the old prison administrators defended existing practices.
By contrast, while there are of course variations and holdouts, this
new breed of prison administrator is more progressive and reform294
minded than past administrators.
For one thing, unlike past
administrators, the new breed is more “comfortable with the idea of
295
prisoners’ rights.”
Many of these new prison officials, drawing on the lessons of the
past, recognize the importance of public oversight. For example, Jack
Cowley, a warden from Oklahoma, wrote that without accountability
that comes with oversight, “the culture inside the prisons becomes a
289 Editorial Board, Op-Ed., A ‘Culture of Violence’ at Rikers Island, N.Y. TIMES (Aug.
5, 2014), http://www.nytimes.com/2014/08/06/opinion/a-culture-of-violence-at-rikers
-island.html.
290 Stojkovic, supra note 15, at 1483.
291 Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and the
Bureaucratization of American Corrections: Influences, Impacts and Implications, 24
PACE L. REV. 433, 443 (2004) (“Prison conditions litigation enhanced and accelerated the
professionalization of corrections . . . . It provided a new and important forum for national
correctional leaders to promote ideas they had long advocated; and it fostered the
recruitment of a new type of correctional administrator.”).
292 Id. (citing MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING
AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS 182, 193
(1998)).
293 See generally Stojkovic, supra note 15.
294 See Feeley & Swearingen, supra note 291, at 444–46.
295 Id. at 445 (citation omitted).

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place that is . . . foreign to the culture of the real world.”
A.T.
Wall, the director of corrections in Rhode Island, made a similar point
when he observed that without “light, light, and more light,” there is a
real danger of prison abuse, and “we [the public] cannot sit idly by. If
we do so, we run the substantial risk that the dynamics of these
environments will default to a position where misconduct can
297
ultimately flourish.” Gawande also noted that corrections officials,
even well-meaning ones, lack power to change because “[i]t is
pointless for commissioners to act unilaterally . . . without a change in
298
public opinion.”
4. The Impact of Oversight
While prison oversight is still largely lacking in the United
299
oversight has recently begun to take root in some places.
States,
Where it has, when it is combined with prison leadership committed
to change, oversight has produced, or promises to produce, reform to
solitary confinement. Two recent examples illustrate this important
point.
In Maine, a number of outside groups concerned about the abuses
in solitary confinement units came together to form the Maine
Prisoner Advocacy Coalition (M-PAC) to provide oversight of
300
Maine’s prisons.
At first, these groups proposed legislation
301
substantially reforming solitary confinement. When that effort was
unsuccessful, they moderated their demands, asking the legislature to
commission a study by a group of corrections officials and mental
health professionals on the effects of solitary confinement and mental
302
health issues. In response to the report and recommendations of the
303
the newly appointed progressive commissioner created a
study,
department-wide committee to oversee the implementation and
296

GIBBONS & KATZENBACH, supra note 189, at 16.
Id. at 78 (citing testimony of Rhode Island Corrections Director A.T. Wall).
298 Gawande, supra note 195.
299 See Michele Deitch & Michael B. Mushlin, Let the Sunshine In: The ABA and
Prison Oversight, 2011 ABA SEC. CRIM. JUST. 243 (2011).
300 See HEIDEN, supra note 256, at 20.
301 Id. at 19–26.
302 Lance Tapley, Reform Comes to the Supermax, PHOENIX (May 25, 2011),
http://thephoenix.com/boston/news/121171-reform-comes-to-the-supermax/.
303 STEVEN SHERRETS ET AL., FINAL REPORT OF REVIEW OF DUE PROCESS
PROCEDURES IN SPECIAL MANAGEMENT UNITS AT THE MAINE STATE PRISON AND THE
MAINE CORRECTIONAL CENTER (2011), available at http://www.maineprisoneradvocacy
.org/FinalReport_MaineSMUdueprocessprocedures.pdf.
297

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304

adoption of the recommended reforms.
The committee—initially
comprised of top prison officials—also included representatives from
305
outside oversight groups. The newly appointed Maine Department
of Correction Commissioner Joseph Ponte, who spearheaded
expansive efforts for solitary reform in Maine’s prison system,
306
recognized the need for transparency in order to effectuate change.
In furtherance of his determination to open Maine’s prisons to public
view, Ponte removed a number of “high-ranking administration
officials who had been standing in the way of transparency” and tried
307
to undermine his efforts.
As a result of these developments, Maine reformed the state’s use
of solitary confinement. The recommendations included that the
prison must consider less punitive measures before sending an inmate
to solitary, the prison warden must personally sign off on a transfer to
solitary for punishment, and the corrections commissioner must
approve any proposal to keep an inmate in solitary for more than
308
seventy-two hours.
With these reforms, the solitary confinement
population decreased by more than fifty percent, and the average
309
length of a stay reduced to thirty or forty days.
Self-mutilation
310
among segregated inmates has also declined.
In New York State, too, the combination of prison oversight and
forward-thinking prison administrators has begun to yield significant
reform to solitary confinement in the state’s large prison system. New
York advocates have long been calling for reform, citing the
disproportionate number of people who are held in solitary in the
state, the conditions of their confinement, and the fact that they are
often confined in solitary for long periods for offenses that do not
304

See HEIDEN, supra note 256.
The group included members from various human rights advocacy groups, including
the National Association for the Advancement of Colored People (NAACP), the M-PAC,
and the chairman of the state’s prison’s board of visitors. See HEIDEN, supra note 256, at
20–21.
306 Lance Tapley, Prison Reforms Under Maine’s New DOC Commissioner, 24 PRISON
LEGAL NEWS 28 (2013), https://www.prisonlegalnews.org/news/2013/mar/15/prison
-reforms-under-maines-new-doc-commissioner/.
307 Id. (quoting Maine State Prison chaplain, Stan Moody).
308 Our View: Prison Reforms Take Maine in Right Direction, PORTLAND PRESS
HERALD (Apr. 25, 2014), http://www.pressherald.com/2014/04/25/our_view__prison
_reforms_take_maine_in_right_direction_/.
309 Id.
310 Id.
305

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justify such harsh punishment.
A report published by the
Correctional Association in 2003 stated that New York prisons
confine 7.6% of the total inmate population—about 5000 inmates—in
312
solitary confinement.
In 2007, New York appointed a new prison
administrator, Brian Fischer, as the Commissioner of Correctional
313
Commissioner Fischer admitted that solitary was
Services.
314
“overuse[d].” But despite his publicly expressed view, little change
occurred until a scathing report about solitary was released by the
315
New York Civil Liberties Union, which was combined with a class
action lawsuit in federal court seeking a declaratory judgment that
316
New York’s use of solitary confinement is unconstitutional.
This
combination of vigorous oversight and more open leadership led to a
landmark agreement which provided immediate partial reform and the
promise of sweeping changes in the near future to New York’s use of
317
solitary confinement.
The agreement calls for alternatives to
solitary confinement of sixteen- and seventeen-year-olds, a
presumption against solitary confinement for pregnant inmates, and
alternatives to solitary confinement for prisoners with limited
318
intellectual, adaptive, functioning, and/or coping abilities.
Additionally, the agreement requires the appointment of a new
assistant commissioner and a research staff position to oversee and
319
monitor the disciplinary system throughout the state. Furthermore,
the agreement obliges the department to send plaintiffs’ counsel
periodic reports which include information about the demographics of
311 See Jennifer R. Wynn & Alisa Szatrowski, Hidden Prisons: Twenty-Three-Hour
Lockdown Units in New York State Correctional Facilities, 24 PACE L. REV. 497, 499–500
(2004); N.Y. CIVIL LIBERTIES UNION, supra note 190; see also Horn & Mushlin, supra
note 217; supra note 201 and accompanying text.
312 CORR. ASS’N OF N.Y., LOCKDOWN NEW YORK: DISCIPLINARY CONFINEMENT IN
NEW YORK STATE PRISONS 2 (2003), available at http://www.correctionalassociation.org
/wp-content/uploads/2012/05/lockdown-new-york_report.pdf.
313 Testimony of Brian Fischer, Commissioner, Before the Review Panel on Prison
Rape (Apr. 27, 2011), available at http://ojp.gov/reviewpanel/pdfs_apr11/testimony
_fischer.pdf.
314 N.Y. CIVIL LIBERTIES UNION, supra note 190 (quoting Commissioner Fischer,
Address to the New York State Bar Association Panel on Solitary Confinement (Jan.
2012)). The quote appears before the acknowledgements and table of contents.
315 See id.
316 See Peoples v. Fischer, 898 F. Supp. 2d 618 (S.D.N.Y. 2012).
317 See Stipulation for a Stay with Conditions, Peoples v. Fischer, No. 11-CV-2694
(SAS) (S.D.N.Y. Feb. 19, 2014), available at http://www.nyclu.org/files/releases/Solitary
_Stipulation.pdf.
318 Id. at 2–4.
319 Id. at 4.

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inmates in solitary confinement, who is in solitary confinement and
why, the length of total continuous solitary confinement time served
by inmates currently in solitary, deprivation orders, and exceptional
320
circumstances.
The agreement allows the parties’ experts to
conduct up to three tours of the facilities and give reports detailing
321
Adding impetus to the
suggestions or proposals for the facilities.
reform effort, in October 2014, the Prisoners’ Legal Services of New
York (PLS) reached a landmark settlement with the State of New
322
York in Cookhorne v. Fischer.
Among other regulations, there is
now a mandate that a juvenile’s age is a mitigating factor in
disciplinary proceedings. The regulations also abolish solitary
confinement for juveniles by limiting their time of confinement to no
more than eighteen hours per day during the week, and twenty-two
323
hours during the weekend.
In the press release announcing the
settlement, PLS Executive Director Karen Murtagh stated, “I want to
personally thank former DOCCS Commissioner Brian Fischer for his
tremendous efforts in getting this ball rolling and Acting DOCCS
Commissioner Anthony Annucci for the progressive steps he has
324
taken to bring us to this moment.”
Adding even further momentum to the effort to reform solitary, a
coalition of prison reformers has formed an organization called New
325
York Campaign for Alternatives to Isolated Confinement and have
proposed the Humane Alternatives to Long-Term (HALT) Solitary
326
Confinement Act.
The HALT Act ends long-term solitary
confinement by stating that no person may be held in isolated
confinement more than fifteen consecutive days, or twenty days in
327
any sixty-day period. Additionally, the Act would mandate that any
320

Id. at 7–8.
Id. at 8.
322 104 A.D.3d 1197 (N.Y. App. Div. 2013).
323 Press Release, Prisoners’ Legal Servs. of N.Y., Prisoners’ Legal Servs. Reaches
Landmark Settlement for Juveniles 1–2 (Oct. 22, 2014) (on file with author).
324 Id. at 2.
325 Legislation: Summary of the Humane Alternatives to Long-Term (HALT) Solitary
Confinement Act, N.Y. CAMPAIGN FOR ALTS. TO ISOLATED CONFINEMENT, http://nycaic
.org/legislation/ (last visited Jan. 26, 2015).
326 Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, Amend.
§§ 137, 2, 401-a & 45, Cor L, available at http://open.nysenate.gov/legislation/bill/A8588
-2013. This bill is currently in committee.
327 Legislation: Summary of the Humane Alternatives to Long-Term (HALT) Solitary
Confinement Act, supra note 325.
321

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person separated from the general population for fifteen continuous
days must be in a separate, secure residential rehabilitation unit
328
The
(RRU), which focuses on providing therapy and support.
HALT Act places restrictions on the criteria for placement in solitary
confinement or RRUs, and it bans persons younger than twenty-one
or older than fifty-five; persons with a physical, mental, or medical
disability; pregnant women; and anyone who is or perceived to be
329
LGBTI.
The HALT Act enhances due process protections—
including an assessment to determine if the person is in a special
population and is therefore prohibited from being placed in solitary—
330
and allows legal representation at hearings.
These developments
presage real change to the use of solitary confinement in New
331
York.
Maine and New York are not the only places where, thanks to
oversight and open-minded prison administrators, substantial reforms
to solitary confinement are underway. Colorado is another example.
The ACLU of Colorado recently issued a report about solitary in that
332
state’s prisons.
The report draws on eighteen months of research
including interviews with prisoners, analysis of Colorado Department
of Corrections data, site visits, and review of prisoner health files; the
report finds that, while the overall number of prisoners held in solitary
confinement has decreased in Colorado in recent years, the proportion
333
of those prisoners who suffer from mental illnesses has increased.
328

Id.
Id. “LGBTI” refers to lesbian, gay, bisexual, transgender, and intersex individuals.
330 Id.
331 Unfortunately, however, the changes have not translated to a reduction in the use of
solitary in New York. According to one knowledgeable advocate,
[t]he last census for the Special Housing Units was 3,763, representing 7.13% of
the total DOCCS population. The previous month was closer to 3,850. The
number of people in the SHU has been fluctuating around 3800 for the last year
or a little more. There had been a slight decline in the SHU census between 2012
and mid 2013 (from around 4300 to around 3800), but since that time it has
remained around 3800. This percentage of 7.13% is similar to the percentage in
2007 (7.11%), and higher than the percentage in 2003 (5.17%). ([T]he percentage
steadily increased between 2007 and 2012, when again it dropped a little into
2013). Basically it seems there was a slight decrease a little over a year ago, and
then not much change since then.
E-mail from Scott Paltrowitz, Corr. Ass’n of N.Y., to Michael B. Mushlin (Nov. 10, 2014)
(on file with author).
332 ACLU OF COLO., OUT OF SIGHT, OUT OF MIND: COLORADO’S CONTINUED
WAREHOUSING OF MENTALLY ILL PRISONERS IN SOLITARY CONFINEMENT (2013),
available at http://aclu-co.org/wp-content/uploads/files/imce/Solitary%20Report.pdf.
333 Id.
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In addition, Colorado has had two recent corrections leaders
committed to changing solitary confinement. The first, Tom
Clements—who had been working with the ACLU—was tragically
killed on March 19, 2013, by a former inmate who had served eight
334
years in prison, mostly in solitary confinement. His successor, Rick
Raemisch, pledged in early 2014 to reduce the number of prisoners in
solitary confinement to fewer than three percent of the state’s prison
335
population by next summer.
As a result of this combination of
progressive leadership and outside oversight, on June 6, 2014,
Colorado Governor John Hickenlooper signed into law S.B. 14-064,
restricting the use of long-term isolated confinement for inmates with
336
serious mental illnesses in state prisons.
The act created “a work
group” within the department which will consist of the deputy
executive director; director of clinical and correctional services; the
director of prisons; chief of psychiatry; the director of behavioral
health; two representatives from a nonprofit prisoners’ rights
advocacy group, one who is appointed by the Colorado House of
Representatives and another who is appointed by the Colorado
Senate; and two mental health professionals independent from the
department, one who is appointed by the Colorado House and another
337
who is appointed by the Colorado Senate.
The work group is
responsible for advising “the department on policies and procedures
related to the proper treatment and care of offenders with serious
338
mental illness in long-term isolated confinement.”
This bill kept with the trend in the state to reexamine the solitary
confinement system. Governor Hickenlooper had already given
Raemisch the charge to “[l]ower the number in administrative
segregation overall; reduce the number of prisoners who are released
334 Kirk Mitchell et al., Tom Clements, Executive Director of Colorado Prisons, Killed
in His Home in Monument, DENV. POST (Mar. 20, 2013, 5:27 AM), http://www.denver
post.com/ci_22830150/tom-clements-director-colorado-department-corrections-killed-his
?source=infinite.
335 Allison Sherry, Colorado Corrections Chief: I Will Reduce Solitary Confinement,
DENV. POST (Feb. 25, 2014, 5:22 PM), http://www.denverpost.com/news/ci_25227021
/colo-corrections-chief-i-will-reduce-solitary-confinement; see also Rick Raemisch, My
Night in Solitary, N.Y. TIMES (Feb. 20, 2014), http://www.nytimes.com/2014/02/21
/opinion/my-night-in-solitary.html.
336 S.B. 14-064, available at http://www.leg.state.co.us/clics/clics2014a/csl.nsf/fsbill
cont/CC49C5479FE8AD7487257C3000062140?Open&file=064_enr.pdf.
337 Id.
338 Id.

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directly to the free world from solitary; and eliminate or dramatically
339
When
reduce major mentally ill people from serving in solitary.”
the bill was signed into law, a spokeswoman stated, “as of today, we
340
have no offenders with mental illness in solitary confinement.”
Solitary confinement reform has also begun in Mississippi. This
change, sparked by the ACLU, provided oversight by bringing
litigation over the conditions in Unit 32, the solitary confinement unit
341
at the Mississippi State Penitentiary at Parchman. To resolve these
cases, the State of Mississippi agreed to collaborate with the ACLU to
reform a classification system that placed far too many inmates in
solitary confinement. Because of this, the classification criteria were
tightened so that only inmates who had committed serious infractions,
were high-level gang members, or had prior escapes or escape
342
attempts could be considered for placement in solitary units.
Moreover, even for those in solitary, the state eased the isolation by
creating new recreation areas, allowing inmates to be out of their cells
for several hours per day, constructing a dining hall, and expanding
343
educational and mental health services.
These reforms led to a
seventy percent reduction in violence levels since Mississippi closed
344
its major solitary confinement unit.
Nevertheless, much work remains before Mississippi achieves
meaningful reform of its use of solitary confinement. Two recent
cases filed by the ACLU and others reveal that Mississippi has
contracted with private prisons that continue to use solitary
345
confinement in a particularly harsh and inhumane way. In addition,
Commissioner Epps recently resigned his position after he pleaded
339

Sherry, supra note 335.
Joe Palazzolo, Colorado Becomes Latest to Back Ban on Solitary Confinement of
Mentally Ill, WALL ST. J. (June 6, 2014, 3:55 PM), http://blogs.wsj.com/law/2014/06/06
/colorado-becomes-latest-to-back-ban-on-solitary-confinement-of-mentally-ill/.
341 See Presley v. Epps, No. 4:05-CV-00148 (N.D. Miss. Nov. 8, 2011) (dismissed
without prejudice); Erica Goode, Prisons Rethink Isolation, Saving Money, Lives and
Sanity, N.Y. TIMES (Mar. 10, 2012), http://www.nytimes.com/2012/03/11/us/rethinking
-solitary-confinement.html?pagewanted=all; Terry A. Kupers et al., Beyond Supermax
Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification
and Creating Alternative Mental Health Programs, 36 CRIM. JUST. & BEHAV. 1037
(2009), available at https://www.aclu.org/files/images/asset_upload_file359_41136.pdf.
342 Goode, supra note 341.
343 Id.
344 Id. (“Violence went down. The number of prisoners in isolation dropped to about
300 from more than 1,000. So many inmates were moved into the general population of
other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.”).
345 See, e.g., ACLU, NATIONAL PRISON PROJECT LITIGATION DOCKET, available at
https://www.aclu.org/sites/default/files/assets/2014.10.30.updated_npp_docket_8-14.pdf.
340

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not guilty to a forty-nine-count indictment.
Epps is accused of
taking more than one million dollars in bribes and kickbacks over the
last eight years in exchange for hundreds of millions of dollars in
347
prison contracts.
5. Summary
Without oversight, despite the rise of professional prison
administrators replacing older, more hardened, and unprofessional
administrators, solitary confinement continues in American prisons.
Thus, tens of thousands of inmates must endure unnecessary and cruel
stays in solitary confinement. However, like Kafka’s fictional prison,
in the limited situations in which oversight has begun to take root in
collaboration with professional prison leadership, the old walls are
beginning to break down, resulting in significant, positive changes in
solitary confinement.
III
THE LESSON OF IN THE PENAL COLONY
In the Penal Colony is great literature that has meaning and
348
relevance to those concerned about the American penal system.
This should not be surprising. One of the founders of the law and
literature movement writes that literature is a “unique source of
349
learning about key jurisprudential topics.” “The links between law
and literature have a long history dating back as far as the metaphors
350
According to
and parables of Socrates on matters of justice.”
Professor Paul Gewirtz, “[l]iterature makes its special claims upon us

346 Geoff Pender & Jimmie E. Gates, Epps: “I’m Shocked by This,” CLARION-LEDGER
(Nov. 6, 2014), http://www.clarionledger.com/story/politicalledger/2014/11/06/epps
-indicted/18589879/.
347 Id.
348 Great literature provides meaning and relevance to both legal and policy matters.
See generally Richard H. Weisberg, Entering with a Vengeance: Posner on Law and
Literature, 41 STAN. L. REV. 1597, 1624 (1989); TALL STORIES? READING LAW AND
LITERATURE 1 (John Morison & Christine Bell eds., 1996) [hereinafter TALL STORIES];
Oscar Wilde, The Decay of Lying, in THE OXFORD AUTHORS: OSCAR WILDE 230 (Isobel
Murray ed., 1889) (“Literature always anticipates life. It does not copy it, but [molds] it to
its purpose.”).
349 Weisberg, supra note 348, at 1624.
350 TALL STORIES, supra note 348, at 1; see also Posner, Law and Literature, supra
note 169, at 1352 (“The field of law and literature is not new.”).

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precisely because it nourishes the kinds of human understanding not
351
achievable through reason alone.”
In the Penal Colony, Kafka’s dark story, is a parable that illustrates
three critical truths that are relevant to contemporary prison issues.
First, awful things can, and will, happen in prisons if they are closed
to the public they are supposed to serve. Second, no matter how wellintended and enlightened prison officials are, change cannot occur
solely from within. Third, outside oversight is essential if prisons are
to be reformed to prevent abuses from occurring. These insights, so
brilliantly conveyed a century ago in In the Penal Colony by Kafka,
deserve to be a part of the important conversation today about the role
of solitary confinement and the need for oversight of America’s
352
prisons and jails. But, to date, Kafka’s voice has been missing from
this critical discussion. It is well past time to correct this
353
imbalance.
Kafka has long been cited as an author whose work “is highly
354
relevant” to understanding cutting edge legal issues.
Indeed,
Kafka’s work above all others has emerged as the “canon” of law and

351

Paul Gewirtz, Aeschylus’ Law, 101 HARV. L. REV. 1043, 1050 (1988).
For a sampling of the amount of discussion currently taking place in the United
States about solitary confinement, see e.g., ACLU, BRIEFING PAPER: THE DANGEROUS
OVERUSE OF SOLITARY CONFINEMENT IN THE UNITED STATES (2014) (discussing the
case law, media attention, and advocacy taking place around this issue).
353 The approach taken in this Article is not without its critics. Some claim, Posner
among them, that the interpretation of literature has no value to the resolution of legal
issues. RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 35
(1988); Posner, Law and Literature, supra note 169, at 1356 (“If I want to know about the
system of chancery in nineteenth-century England I do not go to Bleak House. If I want to
learn about fee entails I do not go to Felix Holt. There are better places to learn about law
than novels.” (citation omitted)). However, the use of literature in legal scholarship has
powerful and persuasive support. See, e.g., Christine Bell, Teaching Law as Kafkaesque, in
TALL STORIES, supra note 348, at 11 (indicating that there is great value in analyzing great
works of literature not only when the literature explicitly is “about law,” but also when the
literature is about legal institutions, the subject of In the Penal Colony); David N. Cassuto,
The Law of Words: Standing, Environment, and Other Contested Terms, 28 HARV.
ENVTL. L. REV. 79 (2004) (analyzing a novel by Barbara Kingsolver entitled Animal
Dreams); Dragich, supra note 63.
354 Litowitz, supra note 63, at 104 (2002). The major scholarly debate about the value
of literature in understanding legal issues played out in a debate between Professor Robin
West and Judge Posner about Kafka. See Robin West, Authority, Autonomy, and Choice:
The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard
Posner, 99 HARV. L. REV. 384 (1985); Richard A. Posner, The Ethical Significance of
Free Choice: A Reply to Professor West, 99 HARV. L. REV. 1431 (1986); Robin West,
Submission, Choice, and Ethics: A Rejoinder to Judge Posner, 99 HARV. L. REV. 1449
(1986).
352

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literature.
As revealed earlier, In the Penal Colony is especially
relevant to legal audiences because historic research demonstrates that
Kafka, in his professional work on behalf of the industrial workers of
Bohemia, understood the importance of opening closed
356
institutions.
In the Penal Colony highlights a key theme to today’s penal
discussions—in a closed prison setting, the torture machine that
Kafka so carefully and chillingly describes is at the very center of the
operation of the prison, and it is considered essential to maintain
order. We are told, as well, that even though the barbarity of the
machine is abhorred by the new Commandant, and even though
formally he has power to end the cruelty simply by ordering the
machine dismantled, he has not done so. Instead, he invites the
Traveler, the outsider, the voice of civilized values, to visit the colony
to observe the machine and provide society’s judgment. It is only
when the Traveler finally speaks up—saying to the Officer, “I am
opposed to this procedure”—that the use of the machine, which the
new Commandant had not been able to end on his own, ceases.
The analogy to America’s prisons and jails is compelling. Like
Kafka’s machine, solitary confinement is central to the modern
American prison system and is used to exert power and control over
this country’s two million inmates. Like the machine, solitary is used
to control prisoners by punishing them severely for minor infractions.
Kafka’s condemned man is to be tortured and put to death for the
absurd minor offense of failing to salute his superior’s door every
hour during the night; in the United States, isolation is an extreme
measure and it, too, is frequently used as punishment for slight
transgressions. Kafka’s machine is considered by the Officer as
essential to the operation of the penal colony. Similarly, many
American prison personnel defend solitary confinement as an
essential means of securing control and encouraging self-reflection.
While the Officer views the machine as a means of enlightenment and
redemption, advocates of solitary confinement see the “time out”
nature of solitary confinement as a means of allowing an inmate to

355 Bell, supra note 353; see also ROBERT P. BURNS, KAFKA’S LAW: THE TRIAL AND
AMERICAN CRIMINAL JUSTICE VII (2014) (noting that the law’s “gears, nuts and bolts
become clearest when viewed through the eyes of Franz Kakfa”).
356 See supra notes 63–180.

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reflect and to redeem himself.
In fact, as discussed earlier, the
founders of the first prison in America, the very prison that Dickens
and de Tocqueville visited, used solitary confinement for exactly
those purposes and named their prison a penitentiary to signify that
358
goal.
Just as Kafka’s apparatus inflicts severe pain and suffering, so too
does solitary confinement. People who are subjected to solitary
359
confinement suffer enormously. It is more than a coincidence that a
person as professionally knowledgeable and sophisticated as Kafka
360
would imagine the use of such a device in a prison setting. Kafka’s
story warns us that prisons are exactly the kind of modern institutions
in which means of torture will be developed and used. Like the
machine, solitary confinement is imposed on prisoners largely at the
whim of prison administrators without meaningful due process: its
utilization in the United States operates outside of the norms of
361
enlightened society.
Similar to American prisons, Kafka’s penal colony is a closed
institution; as far as we can tell, no one is allowed in or out without
permission. In such settings, abusive practices are very difficult to
end. Behind prison walls, separate cultures develop, old ways die
hard, and the voice representing the community’s values is not heard.
The new Commandant clearly sees the machine as barbaric and wants
to end its use. But although on paper he has the power to abolish the
357 This was the argument that the state of Pennsylvania made to justify severe
deprivations in a solitary confinement unit in its prisons; the United States Supreme Court
accepted this argument. See Beard v. Banks, 548 U.S. 521 (2006).
358 See Harry Elmer Barnes, The Historical Origin of the Prison System in America, 12
J. AM. INST. CRIM. L. & CRIMINOLOGY 35, 51–53 (1921).
359 This was noted by the Supreme Court almost 125 years ago. In re Medley, 134 U.S.
160, 168 (1890) (noting that when solitary was imposed on prisoners, “[a] considerable
number of the prisoners fell, after even a short confinement, into a semi-fatuous condition,
from which it was next to impossible to arouse them, and others became violently insane,
others, still, committed suicide, while those who stood the ordeal better were not generally
reformed, and in most cases did not recover sufficient mental activity to be of any
subsequent service to the community”).
360 See supra notes 78–165 for a discussion of Kafka’s professional career.
361 The international community has condemned the American system of solitary
confinement. See, e.g., Special Rapporteur of the Human Rights Council on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report, ¶ 77, U.N.
Doc A/66/268 (Aug. 5, 2011), available at http://solitaryconfinement.org/uploads/Spec
RapTortureAug2011.pdf (by Juan Mendez) (solitary beyond fifteen days constitutes
torture); EUR. COMM. FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT, 21ST GENERAL REPORT OF THE CPT 39 (2011), available
at http://cpt.coe.int/en/annual/rep-21.pdf (Solitary confinement can amount to “inhuman
and degrading treatment.”).

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“I Am Opposed to this Procedure”: How Kafka’s In the Penal Colony
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machine, without outside support he is incapable of achieving this
goal. To be sure he can make it more difficult to use the machine—for
example, he cut the number of regular shipments of replacement
parts—but he cannot end the torture and the death that takes place
under his watch.
The parallels to the current system are remarkable. There are prison
directors in the United States (the new Commandants if you will) who
deplore the way solitary confinement is used but lack the power,
because of entrenched interests, to truly reform it. For example, the
commissioner of correction of New York publicly stated that solitary
in New York was “overused,” but he was not able to reform it by
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himself.
Litigation, reports of outsiders, and public agitation all
have been necessary to get the topic on the public agenda. As is the
case with the “new Commandant” in Kafka’s story, the “new
Commandants” of American prisons cannot make lasting and
complete change by themselves.
With openness, change can occur. The role of the protagonist
Traveler illustrates the point. He is invited to the penal colony by the
new Commandant to give his opinion as to the appropriateness of
using the machine to torture and kill. The new Commandant, as well
as the Officer, understand that oversight—openness—is the trump
card that will either cause the machine to be endorsed or condemned.
In an important sense, the Traveler is the conscience of the outside
world, the holder of its values. The mere expression of his opinion—
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“I am opposed to this procedure” —is enough for the use of the
machine to end. So, too, in the United States: when prisons are
opened to oversight and when coupled with leadership supportive of
reforms, change can occur. In In the Penal Colony, as in Maine and
New York, when outside groups were allowed access to prison
systems that made extensive use of solitary confinement, and when
these outside groups expressed the voice of the community
condemning the practice, well-meaning administrators were able to
finally begin to make reforms that will significantly improve their
364
prison systems.
362 See MUSHLIN, supra note 183 (reporting comment of commissioner of correction of
New York State).
363 Kafka, supra note 1, at 148.
364 See supra notes 300–31 for a discussion of the progress that has been made in
reforming solitary confinement in Maine and New York thanks to increased oversight. It
has been claimed that the machine in In the Penal Colony in our time and place is the

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In the end, Kafka’s “dirty” story then is really an optimistic one:
when we open up prisons to oversight, we will bring the values of the
community into their operation and end prison abuses like the
rampant use of solitary confinement.

death penalty. See Dragich, supra note 63. That analogy, while it has merit, is not as strong
as the analogy to solitary confinement. The machine was used to inflict torturous
punishment for behavior that occurred in violation of prison rules as a prison disciplinary
and security measure. That is the function of solitary. The death penalty is imposed for
criminal behavior outside the prison walls and is not used as a control device for prisoners.
365 Kafka himself referred to In the Penal Colony as a “dirty” story. HAYMAN, supra
note 2, at 214.