I was glad to read in the AAJ journal that ICPA is taking the problems of solitary confinement in segregation housing seriously (and to see the other excellent articles in the January journal). Segregation / solitary confinement is one of the most troubling aspects of incarceration and has been the focus of work by many legal and human rights advocates for over a decade, and this kind of discussion among the managers of prisons is an important step in changing the practice. It is great to see the recognition that reduced use of segregation and a more rehabilitative and re-entry focused approach improves so many different aspects of the prison system.
However, the AAJ Journal article on the panel included some surprising takes on how segregation is done, so as someone who has been researching the topic for a couple of years now, I'd like to share my perspective. The first thing that jumped out at me was the attempt to define the terms "administrative segregation" versus "disciplinary segregation" - these are not clear-cut categories but are actually used in divergent ways by different states. For example, "Administrative Segregation" in California is used for people determined to be violent gang members; the very people likely to be considered "disciplinary" cases in New York. The confusion of terms exemplifies a basic lack of clarity over who belongs in what conditions that cannot be resolved through improved semantics; in virtually every state's population in isolation you can find people who have been placed there as retribution by line staff, through manipulation by other prisoners, or even for no apparently appropriate reason at all. A general move to reduce solitary confinement is probably the only way to successfully limit (but not eliminate) this problem.
Also welcome is the strong recognition of the problems of treating people with mental illness in isolation, however, the idea that this can be done better than at present while keeping mentally ill people in segregation misses the point. The U.N. Special Rapporteur on Torture has stated unequivocally that no one with mental illness should be held in solitary confinement; and a similar position is rapidly evolving in U.S. courts. AAJ members may recall the presentation by Stuart Grassian, MD, of Harvard Medical School at our 2012 conference: I think he might object to the idea that "there is little good research on the [mental health] effects of solitary confinement." In the brief review he shared us he cited cases from the 19th century through the present from three or four different countries. There is a lot of research; AAJ members should be aware of it.
All this is not to say that I disagree with the panelists. They call for "collaboration with advocates and researchers"; ADPSR is a public information and advocacy organization that also believes in collaboration. The panelists want to reduce the use of solitary confinement, and, speaking for ADPSR, so do we. Many of the management-level procedures they call for would be a welcome change from the needlessly punitive use of solitary confinement today. But there is an important difference: the panelists are not legally bound by international human rights treaties, while AIA members are pledged to "uphold human rights in all our professional endeavors". Accordingly, ADPSR wants to see solitary confinement reduced to a level compatible with international human rights standards and wants AIA to join that effort; the panelists proposed operational rules that clearly leave open the possibility of ongoing human rights violations if "preferred" levels of review and lengths of stay are not met.
Lastly, I am disappointed that this journal article appears to cast ADPSR's position into a false dichotomy of "fighting the old order" rather than "focusing on the new." To be clear, ADPSR is calling for a ban on the design of execution chambers and spaces intended for prolonged solitary confinement (as defined by the U.N.) - see http://www.adpsr.org/home/ethics_reform for details. We agree that there need to be new ways of handling difficult people in prison - especially the mentally ill - that are focused on treatment and re-entry and that respect human rights. But it is only because of years of criticism of the harshness of solitary confinement in U.S. prisons that this kind of progress is happening at all. To give credit where credit is due, it is ACLU lawsuits in Colorado, Maine, Mississippi, New York and elsewhere that have led to successful reductions in the use of solitary confinement: in these cases, the fighters of the old order were essential to creating the new order. Not coincidentally, ACLU has endorsed ADPSR's proposed change to the AIA Code of Ethics. As persistent fighters of the old order, they would like to see the new order designed with human rights firmly in mind - and so would we. I am hopeful that in the long run this may turn out to be another area of agreement after all.