Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences
Hearing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights
The Honorable Dick Durbin, Chair
Tuesday, June 19, 2012
Written Statement Submitted by:
Professor Angela A. Allen-Bell
Assistant Professor of Legal Analysis & Writing
Southern University Law Center
P.O. Box 9294
Baton Rouge, Louisiana 70813-9294
I begin with an expression of immense gratitude to Senator Dick Durbin and the Senate Subcommittee on the Constitution, Civil Rights, and Human Rights for having the compassion, courage and fortitude to explore an issue that promises no personal advancement for anyone. Efforts relative to the issue of solitary confinement and its abuses are patently selfless and profoundly pious. Work on behalf of vulnerable and disesteemed inmates yields few monetary rewards and invites a barrage of cynicism. Thank you for exemplifying leadership and for undertaking this long overdue expedition and for spearheading this much needed inquest.
I recently authored an article where I examined some of the constitutional issues surrounding solitary confinement practices in the United States. The article is published in the spring 2012 issue of the Hastings Constitutional Law Quarterly. The article is titled: "Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged and Justice Becomes Legally Blind." While the article uses the case of the Angola 3, two Louisiana men who have been held in solitary confinement for 40 years, as a case study, the article should in no way be viewed as a work that is limited in nature to the case of the Angola 3. Instead, the article uses cases and authorities from across the nation in an attempt to study the issue of prolonged solitary confinement. What was revealed in the end was the fact that the Angola 3's case was in no way an isolated incident or a paranormal event. The fate of the Angola 3 is representative of a documented, dangerous trend in penal institutions whereby many inmates are subject to solitary confinement despite having committed absolutely no infraction behind prison walls and, once there, are trapped for indefinite or permanent periods because there is no meaningful review process in place and because there is a lack of judicial oversight.
My article discusses three constitutional concerns relative to current prolonged isolation practices, the first of which is due process. The article discusses how a meaningful process can and should be afforded to inmates when their stay in prolonged isolation is evaluated at periodic intervals. Thereafter, the article addresses how the current prolonged isolation practices undermine the Doctrine of Separation of Powers. This is followed by an explanation of how and why judicial abstention has lead to abuses. A prominent contention of my article is that judges are the only people authorized to impose sentences and that prison officials are only authorized to impose necessary discipline. When prison officials impose extreme and prolonged disciplinary measures that are not justifiable for disciplinary or administrative purposes, prison officials, in effect, re-sentence a defendant (sometimes even to death). Because the administrative process often does not lend itself to meaningful substantive judicial oversight, courts are frequently unable to serve their function, which is to effect justice in such an instance where the lines of separation between branches have been impermissibly crossed. My article demonstrates how, if unchecked, this results in a situation where prison officials have more sentencing power than courts. And, worse, where prison officials use that power to silence voices they do not want heard or to remove influences they do not want dispersed amongst the prison population. Lastly, the article offers a suggested national legislative model for the periodic review process. This model attempts to rectify procedural and substantive shortcomings in the current review process.
I will briefly outline my research findings. It is my hope that you will read the work in its entirety and use it as a part of your committee's efforts and considerations.
--14th Amendment (Due Process Clause) and the Periodic Review Process:
The article offers the following insight relative to these topics:
As a result of there being no exact standards governing periodic review hearings, review hearings are in many instances nothing more than ritualistic exercises in formality. Often, the proceedings are hollow in that they do not genuinely probe into the suitability of an inmate's custody change, and they do not rule based on a measurable evidentiary standard. Many review hearings serve as veils for a predetermined decision to maintain an inmate in isolation on an indefinite or permanent basis. Further complicating the situation is the fact that judicial challenges to such proceedings may fall upon deaf ears because courts, concerned only with procedure and satisfied with the knowledge that a "process" was afforded, feel their work is done".[T]his does not comport with due process. Because inmates have no constitutional right to release from prolonged isolation, it is imperative they be afforded a just process when they are evaluated at periodic intervals".
SOURCE: 39 Hastings Const. L.Q. 763, 797-8 (Spring 2012) (citations omitted).
--Separation of Powers:
On this issue, the article states:
As an extension of the executive, corrections administrators may not, according to the Doctrine of Separation of Powers, encroach upon the powers of the legislative or judicial branches of government. By design, a warden plays a very different role in the life of an inmate than does a sentencing judge, whose primary function it is to impose sentences. A sentencing judge has authority to remand a defendant to the custody of the corrections department. In most instances, a sentencing judge has no authority over how or where a defendant spends his time in custody. Once a defendant is taken into custody, his relationship with prison officials and administrators begin. What is important is the delineation of power between the two officials. Judges are not equipped with prison administrative authority and wardens are not equipped with sentencing authority.
It is the obligation of penitentiary officials to insure that inmates are not subjected to any punishment beyond that which is necessary for the orderly administration of (the prison). When prison officials impose pretextual and/or extreme and prolonged disciplinary or administrative measures that are not absolutely necessary for prison security purposes or genuinely connected to legitimate penological concerns, the prison official leaves the realm of discipline and enters the realm of sentencing/resentencing. In doing so, prison officials not only abuse their authority, but they assume authority they lack.
SOURCE: 39 Hastings Const. L.Q. 763, 803-4 (Spring 2012) (citations omitted).
--Judicial Abstinence and the Potential for Abuses
My article expresses:
Currently, there exists "a policy of minimum intrusion into the affairs of state prison administration" and a belief that state "prison officials . . . be vested with broad discretion . . ." With respect to inmate periodic review hearings, this often results in courts limiting their involvement to ensuring that inmates are afforded the process to which they are entitled. Often, courts will not evaluate or engage in a meaningful review of the process' substance.
[O]ne might argue that, in the prison setting, courts have created a layer of immunity for prison officials, by refusing to scrutinize penal decision-making during the periodic review process. What is needed is a firm legal line".The legal line should memorialize the crossing point into too far. The challenge lies in stopping courts from enabling transgressions by prison officials with their silence, while at the same time ensuring that the courts are not put in the position of having to micromanage prison officials.
SOURCE: 39 Hastings Const. L.Q. 763, 806-8 (Spring 2012) (citations omitted).
--Reform Proposal: Legislative Model for the Periodic Review Process
My article advocates the following:
Conceding that prison officials must have liberal charge of an institution, this authority needs to be somewhat less absolute than it currently is. A lack of accountability or oversight corrupts as much as it serves to ratify innocent errors in judgment. The major reform advanced herein is that institutions should no longer have complete authority over decisions regarding inmates' exoduses from solitary confinement. As an alternative, a tiered approach should be implemented, whereby prison officials make the initial decision to place a prisoner in isolation and retain authority over the first periodic review, but where, thereafter, other eyes begin to watch, other ears begin to listen, and other minds begin to ponder the fate of the isolated inmate. This reform is consistent with the aspirations of the Supreme Court, which expressed that, in both civil and criminal proceedings, due process requires an "adjudicator who is not in [the] situation." In furtherance of this view, the Court has explained that "[e]ven an appeal and a trial de novo will not cure a failure to provide a neutral and detached adjudicator." Another significant proposed reform is that the process be regulated by actual legislation and not by the administrative rule-making process. The proposed model follows:
1. Preliminary Considerations
This model is intended to have both prospective and retroactive application.
This model assumes all players will be trained and informed, as a minimum, on the unique intricacies of penal institutions, solitary confinement, and due process.
2. Placement into Solitary Confinement
Prison officials should maintain exclusive control over the process employed to place an inmate into solitary confinement.
Prison officials should maintain exclusive control over the periodic review process until completion of the first review.
When being placed in solitary confinement, prisoners should know the reason for the placement and the duration of their sentence to solitary confinement, and should be provided with a case plan enumerating exactly what must be done to earn their exodus.
Placement in solitary confinement as a result of perceptions that are not incident to actual actions or specific, actual, and legitimate security or penological concerns should be prohibited. Continued placement in solitary confinement based on dated security concerns should not be allowed.
Prolonged solitary confinement should be abolished. However, the practice of reassigning an inmate to solitary confinement for a defined time, following an adverse review, should be allowed.
Once in solitary confinement, inmates must have a means of defending their interests at review proceedings. They must have access to some programs and services so reformation can be established during the review process.
3. Periodic Reviews
Reviews should be conducted at regular intervals. Four months is the recommendation.
Burden of Proof: At every stage of the review process, the prison should bear the burden of showing: (1) that the case plan could be accomplished; and (2) how the inmate failed to satisfy the case plan.
After completion of the first review, prison officials should no longer retain exclusive control over the review process.
The initial review should be conducted by prison officials. If the decision is unfavorable, a seven-member special review board should be empanelled for all future reviews.
The seven-member special review board should be comprised of:
One ethicist or member of the clergy (to serve as Chair).
One mental health professional or a social worker.
One prisoner advocate or an exonerated person.
One current academician.
One former military leader or one former prison administrator.
One former member of law enforcement.
One lawyer (familiar with civil due process protections).
The ethicist or clergy member should chair the board, as well as empanel the board from a pro bono list made available by professional organizations or by way of an official call for board volunteers.
Members should not receive remuneration or anything of value in exchange for their service and should not be appointed by the prison. While having local members would be ideal, there would be no opposition to members from across jurisdictional lines. In fact, such would serve to promote national uniformity.
Decisions should be made by the will of four members.
4. Periodic Review Determinations (by Prison Officials or by Special Review Board)
The aim should be a determination of whether the inmate satisfied the case plan or if the inmate made a genuine attempt at satisfying the case plan.
The inmate's release from confinement should be viewed on par with the prison administration's administrative and management concerns.
The warden must articulate the penological interest at issue and present verifiable reasons for the placement request. The warden's views should be considered. The warden's statement should be treated as equal to the other evidence.
Psychological evaluations should be an integral part of every review proceeding. They should be treated as equal to the other evidence.
The inmate's disciplinary record should be an integral part of every review proceeding. It should be treated as equal to the other evidence. The absence of recent infractions should be persuasive, but not outcome determinative.
Release denials should require a short statement of reasons for continued confinement, as well as articulation of future release criteria in the form of a supplemental case plan.
Decisions should be made upon a showing of a preponderance of actual evidence to justify keeping a person in isolation. Said evidence should establish that the prisoner "poses a credible continuing and serious threat to the security of others or to the prisoner's own safety."
Expert opinions may be considered during the review process. If used, they should be treated as equal to the other evidence.
5. Court's Role in the Review Process
The review should extend to the procedure afforded, as well as to the merits of the adverse finding. When reviewing the merits, the aim should be a determination of whether the inmate satisfied the case plan or if the inmate made a genuine attempt at satisfying the case plan.
When reviewing the merits, courts should ensure:
The burden of proof was met.
The inmate's release from confinement was viewed on par with the prison administration's administrative and management concerns.
Due process was afforded. This means that:
a. Substantively, the inmate had the opportunity to show that no credible continuing and serious threat to the security of others or to the prisoner's own safety exists.
b. A sincere effort was made at determining if the inmate satisfied or genuinely attempted to satisfy the case plan.
c. The current punishment is connected to a current security concern and not a dated one.
d. The current punishment is connected to a legitimate security threat and not a perceived one.
e. The decision was made upon a showing of a preponderance of actual evidence establishing that the prisoner poses a credible continuing and serious threat to the security of others or to the prisoner's own safety.
After six periodic reviews (under the same case/issue), judicial review may be sought by any aggrieved party (prison official or the inmate).
SOURCE: 39 Hastings Const. L.Q. 763, 809-16 (Spring 2012) (citations omitted).
The late Professor Derrick Bell spoke these insightful words:
"Telling the truth can be hard and even painful work, but lying, keeping the truth secret, is far more painful. When we think lying isn't hard and painful, it's rarely because its become easy and pleasant; more likely it's because we have put up a wall between ourselves and our awareness of our captivity. This is why I am surprised that so few people in difficulty fail to tell the truth when confronted with conduct that is dishonest or less than honorable --even when admitting that conduct could lead to civil liability or criminal prosecution".Generally, though, the truth will come out; when it does, chances are that you will be worse off for having dissembled, evaded, or out-and-out lied."
On the question of how solitary confinement is being used in America's penal institutions, truth is our serum and our magic portion. We must drink of it and we must generously pass the cup. For too long, the truth has been silenced, withheld and suppressed were solitary confinement is concerned. We must now be liberated by this truth. And after our work of exposing the truth is done, we must not recline or delight in a sense of accomplishment. Meaningful change must follow, lest we become victims of inertia.
I offer the conclusion to my article as my closing remarks:
Some estimate there to be between 50,000 and 80,000 inmates in solitary confinement in this country on any given day. Given the broad appeal of prolonged isolation, there must exist a uniform and constitutionally sound periodic review process. There is simply no way to refute the urgency of the present. This process should not rob prison officials of needed authority, but also must not mute the voices of inmates subject to the prolonged nature of the confinement for reasons that do not amount to legitimate penological interests or security concerns. Perception profiling and arbitrary use of prolonged isolation and/or abuse of prolonged isolation as a management style is inconsistent with best practices, as well as with constitutional mandates. Incidentally, Louisiana does not allow a veil of secrecy to surround the fate of abused animals after they have been rescued. By the strength of law, the rescuer "shall keep a special book for the purpose of registering any animal entrusted to their care . . . and the book shall be open to inspection at all times." Under this legislation, research facilities must be inspected, and they must produce annual reports showing compliance with standards.
When prison officials stop acting as administrators and effectively begin handing down sentences, they, for all practical purposes, become judges. The Separation of Powers Doctrine prohibits prison officials from acting with this authority. When judges abstain from meaningful involvement in the periodic review process, they look, but fail to see the very thing they are uniquely positioned to see. They do not see the need for justice and interpretation of law--due process law. The judge, by his omission, renders justice legally blind as far as the inmate is concerned. The legally blind can innocently be a detriment to those around them.
Incarceration by its very nature invites condescension toward and perhaps even disdain for inmates. But it offers no reason or excuse to diminish the rights or the humanity of the incarcerated. Affording justice to inmates does not and should not depend on the good faith or forbearance of prison officials. It is mandated by our form of government. Mindless insistence on maintaining order in prisons without concern for the rights of inmates is antipodal to democracy.
Due process looks to the "justice of the procedure itself." A simulated process akin to a hearing, where formalities can be documented, but where no meaningful probing occurs, is unjust and unconstitutional. It amounts to nothing more than procedural automation in a legal assembly line where unfavorable reviews are mass-produced"..
SOURCE: 39 Hastings Const. L.Q. 763, 818-20 (Spring 2012) (citations omitted).
To review my article in its entirety, the publication details are listed below:
Title: Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged and Justice Becomes Legally Blind.
Citation: 39 Hastings Const. L.Q. 763 (Spring 2012).
Link to the article along with information about the Angola 3 case: