That solitary confinement as practiced today in American prisons is unjust nearly goes without saying (though that “nearly” hasn’t yet reached “totally”). In most cases, moving someone from regular prison to solitary is not the decision of the court, but of the prison ward, and that decision is made without the legal proceedings that ought to accompany punishment. In recent years, the number of people held in isolation in the United States has staggered to over 100,000. What’s more, the racial, political, social, psychological, and sexual identities of those hundreds of thousands kept detached from the rest of humanity follow suspicious trends, a reality known to the US Department of Justice. Many advocacy groups, including Students for Prison Education And Reform (SPEAR) here at Princeton, see this as a major reason for pushing to abolish solitary confinement, according to Daniel Teehan ’17, the advocacy group’s current vice president and former co-president. As he told PJB, “the extra-legal nature of solitary is really at odds with any standard of justice.”
Circumstantial realities aside, solitary confinement raises certain intrinsic issues. In 2011, the UN Special Rapporteur on torture released a statement suggesting, even if hesitantly, that solitary confinement per se is a form of torture, due to the mental toll it takes on its victims. This is recognized to be the case especially in prolonged isolation (exceeding 15 days) or for juveniles or those with prior mental health issues. As President Obama noted in a Washington Post op-ed introducing his prison reform agenda, “[prolonged solitary confinement] has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones. Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.”
What exactly makes solitary confinement a form of torture? Why is it any worse than other forms of humane punishment that cause discomfort without inflicting physical harm? Discourse seems to point in the direction of the mental harm that results from prolonged isolation. But what makes that more wrong than other forms of punishment?
In some sense, psychological punishment seems even more fair than physical punishment. The juridical systems with which most of us are familiar operate under the principle of “actus non facit reum nisi mens sit rea,” that there is no criminal act without criminal intent. What stands between an accidental car crash and an act of manslaughter is the intent to cause harm. If what defines a crime is the mental state that led to the action, it seems fitting, upon preliminary reflection, that the mind be punished, rather than the body that simply followed the mind’s orders. From a retributive view of punishment, imposing sadness, loneliness, and frustration seems more fair than either lashes or fines.
But from a rehabilitative view of punishment (which, as Teehan notes, “the American penal system claims to hold, even though that really isn’t the case”), psychological punishment is harder to justify. Truth be told, isolation and rehabilitation have a long-shared history; the use of solitary confinement, when first implemented by American Quakers in the 1820’s, was intended to promote rehabilitation and marked a major shift towards rehabilitation in penal thinking. But thinking that inflicting psychological trauma rehabilitates inmates is extremely misguided. Reports indicate that upon release, those who were held in solitary confinement have trouble readjusting to normal lights and sounds and easily lose their tempers. In fact, solitary confinement, due largely to its mental ramifications, has been shown to lead to higher rates of recidivism. And if that’s not enough, about fifty percent of suicides in American prisons are executed by people held in solitary confinement — rest assured that isolation isn’t a constructive form of rehabilitation.
The legitimacy of solitary confinement and of psychological punishment more broadly, though, does not simply boil down to a retributive/rehabilitative argument. Even if we were to accept that — based on our principles of penality, criminality, and identity — psychological punishment can be justified, there is still reason for concern. In her monumental work The Body in Pain, Elaine Scarry points to the inexpressibility of pain, and thus the incomprehensibility of pain by outsiders, as what makes torture wrong. No juridical body can possibly understand the subjective experience of one who is subjected to physical pain. If this is the case, then it is certainly even more true in regards to the mind. If the reality of pain is known by the victim in a way that necessarily exceeds the knowledge of any onlooker, then certainly no less can be said of the reality of one’s thoughts or emotions. Pain is only experienced; thought and emotion are part and parcel of one’s identity. Many ethical principles we hold dear (e.g. freedom of thought/belief/conscience, intellectual property rights) are built on the foundational notion that the mind is a sacred space, a space that cannot be intruded upon or tampered with by anyone but oneself.
In a similar vein, psychological punishment does not lend itself to fair administration. While the dollar price of a fine or the duration of incarceration can be standardized (based on some standard of fairness, whatever that may be), psychological punishment is subject to too much variability. While some people can (astonishingly) survive over four decades in isolation with minimal if any mental deterioration, others, after even a few days alone, may face mental and psychological issues for the rest of their lives. We simply aren’t in a position to measure the impacts psychological punishment may have for its victims, which sometimes extend far beyond the given sentence. “The mental issues go beyond the time in solitary,” says Teehan. “The system creates a different class of people.”
The mind is not fair game for punishment. It’s too personal, and too variable. While solitary confinement has not yet been abolished in the United States, we’re moving in that direction, with President Obama banning isolation for juveniles and those with mental disorders by executive order, and narrowing its use more generally throughout the country. But lurking in the corner is a much bigger question. If the mind and the body are inseparably intertwined, then punishing the body also punishes the mind. All and any imposition of suffering takes a mental toll. But if psychological punishment is under all circumstances unfair, should we conclude that, in reality, no punishment can ever be fair?
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- Baumgartel, S. et. al. (2015). Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison. Retrieved March 7, 2016, from https://www.law.yale.edu/system/files/area/center/liman/document/asca-liman_administrativesegregationreport.pdf
- Beck, A. (2015). Special Report: Use of Restrictive Housing in U.S. Prisons and Jails, 2011–12. US Department of Justice. Retrieved March 7, 2016, from http://www.bjs.gov/content/pub/pdf/urhuspj1112.pdf
- Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment. (2011). Retrieved March 7, 2016, from http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf
- Obama, B. (2016). Barack Obama: Why we must rethink solitary confinement. Washington Post, Jan. 25, 2016. Retrieved March 7, 2016, from https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html?tid=a_inl
- Sullivan, L. (2006). Timeline: Solitary Confinement in U.S. Prisons. NPR, July 26, 2006. Retrieved March 7, 2016, from http://www.npr.org/templates/story/story.php?storyId=5579901
- Breslow, J. (2014). What Does Solitary Confinement Do To Your Mind? PBS, April 22, 2014. Retrieved March 7, 2016, from http://www.pbs.org/wgbh/frontline/article/what-does-solitary-confinement-do-to-your-mind/
- Gordon, S. (2014). Solitary Confinement, Public Safety, and Recidivism. University of Michigan Journal of Law Reform (47:2), 495-528. Retrieved March 7, 2016, from http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1035&context=mjlr
- Goode, E. (2012). Senators Start a Review of Solitary Confinement. New York Times, June 19, 2012. Retrieved March 7, 2016, from http://www.nytimes.com/2012/06/20/us/senators-start-a-review-of-solitary-confinement.html
- Scarry, E. (1985). The Body in Pain: The Making and Unmaking of the World. New York, NY: Oxford University Press.
- Pilkington, E. (2016). Albert Woodfox speaks after 43 years in solitary confinement: ‘I would not let them drive me insane.’ The Guardian, Feb. 20, 2016. Retrived March 7, 2016, from http://www.theguardian.com/us-news/2016/feb/20/albert-woodfox-angola-3-first-interview-trump-confinement
- Fact Sheet: Department of Justice Review of Solitary Confinement. Jan. 25, 2016. Retrieved March 7, 2016, from https://www.whitehouse.gov/the-press-office/2016/01/25/fact-sheet-department-justice-review-solitary-confinement