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COMMENTS ON THE NEW YORK STATE BAR ASSOCIATION CIVIL RIGHTS COMMITTEE REPORT TO THE HOUSE OF DELEGATES
Civil Rights & Liberties Committee and Criminal Justice Section
New York County Lawyers’ Association
The Civil Rights Sc Liberties Committee and the Criminal Justice Section of the New York County Lawyers’ Association appreciate the opportunity to comment on the New York State Bar Association Civil Rights Committee Report to the House of Delegates regarding the use of solitary confinement in New York State and City prisons (the “Report”). We recognize the significant research and analysis in this excellent report. We support the report and generally agree with the proposed recommendation to; (1) restrict the use of long-term solitary confinement by adopting clear and objective standards; (2) adopt stringent criteria, protocols and safeguards for separating violent or vulnerable incarcerated persons; (3) demand that State and New York City officials and agencies take necessary steps to proscribe the imposition of long-term solitary confinement on persons in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) and New York City Department of Corrections (“DOC”) beyond 15 days; and (4) request the State Legislature to hold public hearings inquiring into the harmful effects of long-term solitary confinement and to solicit professional and academic commentary on the matter, as well as comments from persons who have been placed in long-term solitary confinement. We note below our general agreement with the Report and comment in more detail on aspects of both the Resolution and Report.
Significant and Alarming Negative Externalities
The well-documented Report identifies significant and alarming negative externalities arising from the conceded overuse of solitary confinement practices. In light of the information contained in the Report, the proposed resolutions urging the DOCCS and DOC, inter alia, to examine and adopt new criteria, protocols and safeguards for the use of solitary confinement and to forbid the use of solitary confinement for more than 15 days are eminently reasonable. The Report contains findings that confirm solitary confinement is concededly overused in New York’s prisons, and in large part used to promote order maintenance in the corrections context. We agree this policy is at best misguided. The Report cites findings that states such as Mississippi, Colorado, Illinois, Ohio and Washington have eliminated or curtailed use of solitary confinement without negative effects on prison order maintenance. The Report’s credible findings undermine support for the “order maintenance” rationale while setting forth in stark relief the detriments of solitary confinement: (1) is harmful to prisoners’ mental health; (2) impedes prisoners’ rehabilitation; (3) is applied in a racially disproportionate fashion; (4) does not improve discipline; and (5) is expensive.
Greater Evil than Certain Death
Over a century ago, American jurists saw solitary confinement as a “greater evil than certain death.” John McCain, who was tortured for years, suffering multiple broken bones and chronic dysentery, said “[solitary confinement] crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” Protracted solitary confinement can cause psychiatric damage that lasts for months or years. Nevertheless, the practice is widespread in New York State. All 60 New York State correctional facilities have solitary confinement facilities – and two are configured for solitary confinement alone. Solitary confinement also precludes the mentally ill from gaining access to treatment and makes them particularly vulnerable. Those who are incarcerated and mentally ill should not be placed in solitary confinement. Nevertheless, it is estimated that 14% of those in solitary confinement in DOCCS’s facilities have been diagnosed with a mental illness. Isolating these individuals denies them access to necessary medical care, oftentimes with disastrous results. Most suicides in New York prisons occur in single isolation cells.
Race, Recidivism, Rehabilitative Resources and Solitary Confinement
African Americans are disproportionately placed in solitary confinement. They comprise about 14% of the state’s population but represent about 50% of DOCCS’s incarcerated population and 59% of those placed in solitary confinement. Documented research reveals that those who are released directly from solitary confinement after completing their sentence are more prone to recidivism. A study from Washington State revealed that recidivism rates for such individuals was 23% higher than for those released from standard incarceration. Thus, the widespread use of solitary confinement compromises public safety by making recidivism more likely.
Alternatives should be, and have been, explored. At a Federal Supermax facility in Mississippi, administrators sought to maintain order by keeping inmates in solitary confinement for 23 hours a day and for protracted periods of time. However, violent incidents remained common. Administrators eventually tried an alternative approach, wherein restrictions were loosened, incentives were provided for good behavior and rehabilitative resources were enhanced. Significantly, discipline and safety improved.
It is important to note that these benefits were not merely reaped by prisoners, but by correction officers as well. And critically, the increased order in the facility enabled Mississippi to transfer a substantial percent of those who had been placed in solitary confinement to the general prisoner population and the facility was closed, saving the state millions of dollars.
Maintaining discipline in the prison population is a laudable and necessary goal. However, evidence suggests that excessive use of solitary confinement is not only heavy handed and mentally injurious to prisoners and short sighted from a public safety perspective, but is counter-productive in terms of prison discipline. For the reasons stated in these comments, the NYCLA Civil Rights & Liberties Committee and Criminal Justice Section endorse the New York State Bar Association Civil Rights Committee Report and Resolution.
Committee Chairs: Samuel Cohen, Esq., Civil Rights Sc Civil Liberties Committee
Hon. Louis Crespo, Civil Rights & Civil Liberties Committee
Geoffrey Bickford, Esq., Criminal Justice Section
Alison Wilkey, Esq., Criminal Justice Section
Civil Rights Sc Civil Liberties Committee Member: H. Joseph Cronen, Esq.