Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners

Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label disciplinary segregation, administrative segregation, special housing, seg, the hole, supermax, or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting-an exercise cage or a space with a shower. Long-term segregation units operated along these lines are extraordinarily expensive to build and operate. Too many prisoners are housed in them for too long, in conditions whose harshness stems more from criminal-justice politics than from correctional necessity or even usefulness. Prisoners in long-term segregation units often experience extreme suffering, and those who have serious mental illness frequently decompensate and become floridly psychotic. As one judge has explained, [f]or these inmates, placing them in the SHU [Security Housing Unit] is the mental equivalent of putting an asthmatic in a place with little air to breathe. \u27 Some prisoners who enter long-term segregation in a relatively psychologically healthy state experience mental-health damage as well. Such conditions are inconsistent with the human dignity of prisoners and are frequently counterproductive. It is for this reason that the American Bar Association\u27s (ABA) Criminal Justice Standards on the Treatment of Prisoners propose several important reforms in this area of criminal justice policy. From 2007 to 2009, I had the privilege of serving as the Reporter for the Task Force that produced these Standards, which the ABA has now adopted and which are reprinted in this issue of the American Criminal Law Review. Like all of the ABA\u27s Criminal Justice Standards, these are offered by the ABA as a source of insight and authority for judges, legislators, and government officials who are aiming to rationalize and improve the criminal justice system.2 In this Article, I discuss both how and why the ABA Standards deal with the crucial issue of the use of segregation. To summarize, in order to comply with the Standards, jails and prisons must: * Provide sufficient process prior to placing or retaining a prisoner in segregation to be sure that segregation is warranted. (ABA Treatment of Prisoners Standard 23-2.9 [hereinafter cited by number only]3) * Limit the permissible reasons for segregation. Disciplinary segregation should generally be brief and should rarely exceed one year. Longer-term segregation should be imposed only if the prisoner poses a continuing and serious threat. Segregation for protective reasons should take place in the least restrictive setting possible. (23-2.6, 23-5.5) * Decrease isolation within segregated settings. Even prisoners who cannot mix with other prisoners should be allowed in-cell programming, supervised (and physically isolated) out-of-cell exercise time, face-to-face interaction with staff, access to television or radio, phone calls, correspondence, and reading material. (23-3.7, 23-3.8) * Decrease sensory deprivation within segregated settings. Jails and.prisons must limit the use of auditory isolation, deprivation of light and reasonable darkness, punitive diets, etc. (23-3.7, 23-3.8) * Allow prisoners to gradually gain more privileges and be subjected to fewer restrictions, even if they continue to require physical separation. (23-2.9) * Refrain from placing prisoners with serious mental illness in what is an anti-therapeutic environment. Jails and prisons must instead maintain appropriate secure mental-health housing for such prisoners. (23-2.8, 23-6.11) * Carefully monitor prisoners in segregation for mental-health deterioration and deal with deterioration appropriately if it occurs. (23-6.11) The ABA is far from the first organization to offer proposals to reform solitary confinement.4 The Standards\u27 unique contribution, however, is to address all the aspects of long-term segregation by presenting solutions that embody a consensus view of representatives of all segments of the criminal justice system who worked on them together in the exhaustive and collaborative ABA Standards process. 5 Part I of this Article provides information on the Standards more generally. Part II discusses the history of segregated housing and general observations about its effects. Part III discusses the approach taken by the ABA Standards with respect to permitted rationales for the use of segregated housing. Part IV describes the Standards\u27 procedural requirements for placing prisoners in long-term segregation. Finally, Part V focuses on those Standards that are intended to mitigate the effects of isolating conditions. This Article is part of a paper Symposium on the Standards; it is joined by an essay by ACLU National Prison Project Director David Fathi focusing on prisoners\u27 access to courts and other oversight bodies, and another on immigration detention by New York City Department of Corrections Commissioner Dora Schriro