Solitary confinement began as a way to give men a quiet place to reflect on their sins without distraction. The first penitentiary — the word derives from “penitence” — opened in the U.S. in 1829, though the practice had been used since the late 1700s elsewhere. Over the decades, the practice of solitary confinement has deteriorated to the point that it is now the equivalent of torture in violation of the nation’s international treaty obligation, according to a recently released report by UNC School of Law students supervised by Professor Deborah Weissman. The report contributes to a national movement for reform of the use of solitary confinement, as does recently published research by Professor Tamar Birckhead that compares the use of solitary confinement for juvenile offenders in the U.S. with other countries around the world.
Weissman’s students in her Human Rights Policy Seminar researched the various legal frameworks at the federal, international and state levels in order to interpret Eighth Amendment jurisprudence delineating cruel and unusual punishment. They collected raw data, surveyed inmates in the general prison population, and interviewed North Carolina prisoners in a solitary confinement cell block. The inhumane conditions and the impact on the prisoners in solitary left a lasting impression on the third year law students. Mark Bowers ’13 had been a Spanish interpreter prior to law school and had interviewed inmates inside prisons. But even so, he was taken aback by the stench and the noise of solitary — uncirculated air, inmates shouting through the air ducts to speak to one another or kicking the metal doors of their cells nonstop to get the guards’ attention, and the screams of inmates who had broken down psychologically.
“Being confronted with the shocking reality of people’s lives was eye-opening,” Bowers says.
The seminar provided students with the opportunity to engage in the real-life legal work of research, legal analysis and law-related policy work, says Weissman, the Reef C. Ivey II Distinguished Professor of law. “It’s important for students not to think of human rights standards as vague, idealistic or aspirational, but something that has real meaning.”
In producing the 225-page report, the four students who were principal authors collaborated with the American Civil Liberties Union of North Carolina, North Carolina Stop Torture Now and Attorney Steven Edelstein of Edelstein & Payne. The next step is to think about how to use the report to obtain reform.
“As criminology and mental health research evolve and demonstrate the devastating and permanent consequences that result from solitary confinement,” Weissman says, “so too must the law evolve and prohibit what we now understand to be unacceptable forms of punishment.”
Despite the late nights of research and writing and the unsettling experience of solitary, Bowers says working on the report was rejuvenating. “I came to law school specifically to serve, to work in social justice and with marginalized groups,” he says. “It was very motivating to be on the side of advocating again.”
Tamar Birckhead, associate professor of law and director of clinical programs, studied the short- and long-term effects of solitary confinement on juvenile offenders and was surprised to find that the existing research focused primarily on its use in the U.S. She examined the rate and duration at which other countries place minors in solitary and found that approximately 30 percent of the countries in the world either use it as a penal technique or legally recognize its use; only two countries — Nepal and the Republic of Georgia — have banned the use of solitary for juveniles. More affluent countries typically distinguish between placing young offenders in solitary for management purposes or punishment; less economically developed countries typically justify it solely for punishment.
“In the U.S., there have been legal challenges based on the Eighth Amendment, but no court has found that solitary confinement in and of itself is unconstitutional,” she says. She attributes this to judges, courts and other governing bodies having a superficial understanding of the nature of the harm.
Birckhead analyzed empirical research by experts who have documented the psychological, physical, and developmental damage done to youth as a result of solitary confinement lasting days, weeks or months. Those in solitary are more likely to be violent once returned to the general inmate population and are more likely to re-offend once they are released to the community.
“Prisons are less safe when they keep people in isolation,” she says. “People in solitary are more likely to develop physical and mental illnesses, mutilate themselves, commit suicide, damage property and inflict violence on staff. And they’re more likely to recidivate, which makes our communities less safe.”
In her article “Children in Isolation: The Solitary Confinement of Youth,” published online, Oct. 21, 2014, on the Social Science Research Network and scheduled for publication in Wake Forest Law Review in 2015, Birckhead cites the example of a juvenile awaiting trial at Rikers Island in New York who spent 300 days in solitary over the course of two years without having been convicted of a crime. The U.S. attorney’s office in Manhattan issued a report in August highly critical of Rikers’ treatment of juvenile inmates, and the jail subsequently announced it would end the use of solitary for 16- and 17-year-olds.
Change takes litigation, press attention, analysis and reporting, she said.
“Best-practice standards are out there that are designed to limit the use of solitary confinement of youth,” she says, “so as far as making change, folks have already done the work.”
Birckhead’s paper has been downloaded nearly 100 times in the first couple of months it was online. She has published an opinion piece for the Juvenile Justice Information Exchange and presented her findings at a comparative criminal law conference. She continues to teach the Youth Justice Clinic at UNC School of Law. Her study may be the first that puts the U.S.’s use of solitary for juveniles in a global context.
-December 19, 2014