Criminal Justice and
Behavior
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Penal Isolation : Beyond the Seriously Mentally Ill
Fred Cohen
Criminal Justice and Behavior 2008 35: 1017
DOI: 10.1177/0093854808317569
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PENAL ISOLATION
Beyond the Seriously Mentally Ill
FRED COHEN
Tucson, AZ

The duration and conditions of penal confinement (i.e., segregation) in use by our prisons, and regularly upheld by the courts,
are so extreme and so harmful that ultimately such confinement should be prohibited as a matter of law and policy.
Correctional officials, and the courts, tend to conflate the need to insulate some inmates from each other with the use of a
23/7 regimen of segregation, devoid of social interaction. Inmates suffering with mental illness or who are at risk from such
confinement and juveniles are the exceptions, and they have had some success in the courts. This article reviews the relevant
history of penal isolation, Supreme Court decisions and other case law, and the evidence of harm caused by extreme penal
isolation. It is proposed that the law relating to the acceptable uses of mechanical restraints serve as an analogy for the basic
reform in the use of penal isolation.
Keywords: confinement, penal isolation, mental illness

L

et me begin with the obvious: The very nature of our prisons means we must have some
means by which to separate prisoners on the basis of those who are at risk from those
who create those risks. There are any number of other possible reasons for separation: age,
gender, and infection control are some examples. Those bases for separation are not within
the primary focus of this article.
Less obvious than the risk of harm rationale but equally compelling based on policy and
practice is the separation of inmates from each other based on punishment for disciplinary
infractions. I say “less obvious” because there are a variety of punishments available to prison
authorities—for example, loss of amenities, loss of good time, restriction of visiting privileges, transfers, and the like—short of the separation of inmates from each other. Where there
is a genuine concern about the safety of staff and fellow inmates, and depending on the degree
of risk, I stipulate the legitimate need for separation—for insulation—without also conceding
the legitimacy of the extreme conditions often tied to such separation or insulation.
Penal environments, then, separate—segregate—inmates involuntarily based on risk and
as punishment for a prison infraction, a decision not overtly concerned with risk.1 When
that separation takes the form of segregated housing with varying degrees of limitation on
movement, interaction with staff and other inmates, on exercise, visits, reading material,
and access to programs, I will refer to that as penal isolation.
There are, then, multiple avenues leading to various degrees of penal isolation. Why a
given avenue is taken and by what procedural format are independent and fundamental

AUTHOR’S NOTE: Correspondence concerning this article may be directed to Fred Cohen, LL.B., LL.M,
9771 E. Vista Montanas, Tucson, AZ 85749; e-mail: Fredlaw97@aol.com.
CRIMINAL JUSTICE AND BEHAVIOR, Vol. 35 No. 8, August 2008 1017-1047
DOI: 10.1177/0093854808317569
© 2008 International Association for Correctional and Forensic Psychology

1017
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questions, but not within the primary scope of this article. The concern here is with the
conditions and duration of penal isolation whether for punishment or in response to risk
assessment (administrative segregation or classification).
My thesis is that there are conditions of extended penal confinement that are now
imposed and frequently judicially upheld that should be prohibited as a matter of policy and
law. As will be seen, the courts are somewhat receptive to the elimination of extreme penal
isolation on behalf of those inmates suffering with a serious mental illness or at risk for
developing such illness.
Juveniles have long received a judicial, categorical immunity from extended penal isolation. Juveniles, not as litigious as their adult counterparts, often are isolated under sterile,
deprivational conditions in the name of Behavioral Management Plans or the euphemistic
“time out.” Thus, there is often a dichotomy between juveniles’ rights and practices that go
unchallenged.2 The mentally ill and juveniles are judicially immunized based on beliefs or
evidence linking their condition with a special susceptibility to the pain and suffering associated with penal isolation. To the extent that the seriously mentally ill and juveniles in custody also share a right to treatment, penal isolation should be seen as antithetical to that right.
My hope is to extend the general immunity of juveniles and the emerging immunity of
mentally ill inmates to various degrees of penal isolation to all persons in penal confinement.
Along the way, I shall contrast the laudable, legal concern for limiting the use of mechanical restraints with the often shockingly permissive approach taken to penal isolation.

PENAL ISOLATION: CASE LAW REVIEW

A cursory review of some 40 or 50 years of litigation challenging both the use and conditions of penal isolation is a sobering reminder of just how base and how unenduringly lengthy
such conditions may be and still escape successful constitutional challenge. To begin, consider Ruark v. Schooley (1962), where detainees’ complaints about being confined in an isolation cell in a county jail without food, water, and toilet paper for 52 hours were held not to
state a claim upon which relief could be granted. More recently, in Platt v. Brockenbrough
(2007), the Federal District Court reviewed a litany of a Pennsylvania inmate’s complaints:
•
•
•
•

His numerous grievances were never even acknowledged.
He was placed in segregation for 37 days.
He was allowed to exercise only twice in a month for 1-hour periods.
He was denied the means to clean his cell, not allowed to shower regularly, and was shackled
everywhere he went.

First, let me emphasize that these introductory cases are not some worst-case scenarios
presented for inherent shock value. Far from it. Platt’s contemporary complaints fall on the
mild side of the dozens upon dozens of cases I have reviewed.
Judge Anita Brody found that Platt had no constitutional right to a response to his grievances. If he has exhausted the administrative review process, then the prison’s silence
allows him to file suit in federal court. So much for that.
Using the mystical test formulated in Sandin v. Conner (1995), Judge Brody then found
that the inmate had no right to procedural due process prior to his placement in segregation
and the brief duration involved does not approximate Sandin’s requirement of an “atypical
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and significant hardship” in relation to the ordinary incidents of prison life. Indeed, a
15-month stay in administrative segregation has previously been found to fall within the
parameters of the sentence judicially imposed on the inmate.3 Thus, Platt’s rather brief stay
makes his complaint appear to be almost frivolous.
As for Platt’s claim regarding the conditions of confinement and his persistent shackling,
Judge Brody waived off the cleanliness and shower complaints with the general response
that, “These conditions are undesirable but the Constitution does not mandate comfortable
prisons.”4
Finally, the judge notes, correctly, that the law is reasonably clear that lack of exercise
may pose a significant threat to an inmate’s physical and mental well-being. For example,
if muscles are allowed to atrophy, Judge Brody sagely observes, this may constitute cruel
and unusual punishment.5 One might hope that an inmate’s right to exercise would be found
impaired even before his or her muscles experience atrophy.
In any event, the exercise claim is the only one to escape dismissal and this pro se plaintiff is given an opportunity to plead and show the extent of his alleged injuries. He does
appear to suffer with some form of mental illness for which he now receives medication
and perhaps he can convert the physical injury into a causally related psychological harm.
The Platt decision takes us into the contemporary legal world of penal isolation, but just
part of the way. The Supreme Court decision in Sandin addressed conditions of confinement in isolation or segregated settings but only to determine if a pre-deprivation disciplinary (i.e., due process) hearing is required. I presume that conditions may be atypical and
significant hardships but not also the conditions forbidden by the Eighth Amendment’s
Cruel and Unusual Punishment Clause.
By that I mean only that cruel and unusual conditions are not ever constitutionally permissible. The Sandin “atypical and significant” hardship is allowed—perhaps merely tolerated—but requires a so-called Wolff procedural format. Thus, one set of conditions is not
allowed whereas the other—the Sandin situation—requires a procedural minuet on the way
to, say, 15 months in penal isolation.6
As for the constitutional standard used to determine cruel and unusual punishment,
Judge Brody rules
Conditions of confinement may violate the Eighth Amendment if they satisfy two criteria.
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). First, the
conditions alleged must be sufficiently serious such that the official’s act or omission results
in the denial of “the minimal civilized measure of life’s necessities.” Id. [citation omitted].
Second, the officials responsible for these conditions must exhibit “deliberate indifference” to
the inmate’s health and safety. Id. They must act with a state of mind “more blameworthy than
mere negligence.” Id. at 835.7

As the legal decisions morphed from the 1960s to the present, it has become possible to
paint a reasonably clear picture of the permissible and impermissible with regard to penal isolation. For example, in Wright v. McMann (1967), the court determined that a constitutional
violation would exist on proof that a prisoner could be physically punished for failure to remain
at military attention in front of his cell door each time an officer appeared from 7:30 a.m. until
10:00 p.m. every day with sleep not permitted during those hours, on pain of being beaten.
Prison officials were rather hard put to find penal justification for this practice. In
Jackson v. Bishop (1968), an influential Eighth Circuit opinion penned by Harry Blackmun
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CRIMINAL JUSTICE AND BEHAVIOR

prior to his ascension to the Supreme Court, categorically ruled out corporal punishment as
a cruel and unusual punishment. Corporal punishment, of course, is not a practice limited
to penal isolation, although inmates so confined always were, and perhaps remain, prime
candidates for beatings. As litigation proceeded from the 1960s to the present, we may
detect the evolution of a couple of general principles, and some secondary rules on point.
After describing both the popularity and destructiveness of current penal isolation,
Professor Michael Mushlin writes that
Virtually every court which has considered the issue has held that the imposition of solitary
confinement, without more, does not violate the Eighth Amendment. Arguments that isolation
offends evolving standards of decency, that it constitutes psychological torture, and that it is
excessive because less severe sanctions would be equally efficacious, have routinely failed.8

The general legal acceptance of penal isolation/segregation, then, surely is one of the
emergent general principles. Professor Mushlin’s “without more” hedge is the location for
much of the legal action in the area of isolation. For example, there is a line of cases where
unsanitary conditions—of the health and life-threatening variety—are condemned.
In some cases, insufficient or terribly objectionable food is an inmate winner.
Insufficient clothing, insufficient heat, no furniture or window, no lighting, at times alone
but usually in some combination, may qualify as cruel and unusual punishment.9 Again, the
basic concept of prolonged isolation, of very restricted social contacts, sensory stimulation,
and even exercise is not itself challenged. The successful challenges relate to conditions
clearly threatening to health and life itself, and they would be judicially condemned for
general population areas as well as penal isolation areas.
Another general principle, one that is only now emerging and not fully shaped, relates
to the isolation of prisoners suffering with mental illness (see Cohen, 2006, pp. 295, 315).
A number of courts have shown little tolerance for the penal isolation of prisoners suffering from serious mental illness. A series of recent decisions from California, Texas, and
Wisconsin dealing with the isolation, or segregation, of such prisoners resulted in the near
total exclusion of inmates with serous mental illness and those inmates who are in some
fashion psychologically “at risk” from prolonged isolation.10 The heightened vulnerability
of the mentally ill to the risk of harms associated with isolation allows the courts to treat
excessive isolation either as a treatment failure or, more basically, an unreasonable condition of confinement in relation to the attributes of mental illness.
Years before the mental illness exclusion from isolation surfaced, and based also on categorical vulnerability, juveniles prevailed in challenging the imposition of seclusion and
isolation where adults would not have prevailed then or now.11 Although the then prevailing views on the psychology of adolescence may have been different in the 1970s, the result
likely would be the same.
The expert chatter in the 1960s and 1970s was that juveniles simply experienced time
differently. Two weeks in isolation, it was speculated, would seem like years to an adolescent. Indeed, getting into the mix, I even proposed altering the units of time for delinquency
dispositions from years or months to minutes. Imagine a newspaper headline: “Youth sentenced to 43,200 minutes.”12
That, of course, is just a 30-day month but an increasingly punitive public might be satisfied along with those of us seeking to dramatically reduce the number of juveniles in

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secure custody and their length of stay. Today’s developmental psychology encompasses
the earlier concern for moral development—majority patterns of behavior, cognition, and
emotion in a given age range—while expanding to include normal, individual differences
in development (Steinberg & Schwartz, 2000).
Franklin Zimring, Elizabeth Scott, and others rely on developmental evidence to support
their diminished-responsibility standard for juvenile culpability (Scott, 2000). A scaled
down responsibility model should also logically support a scaled down disciplinary or
administrative control model within the juvenile custodial system. Impulsivity, short-term,
temporal perspective, boundary testing, and reduced risk perception are the hallmarks of
today’s developmental psychology.
A juvenile system’s disciplinary system is primarily a punishment system, so the same
thinking on the adjudicatory-dispositional stage will support a “less is better” model here
as well. Where any form of isolation or seclusion is for purely protective reasons, then the
rationale for the intervention itself dictates brevity. Humane conditions are yet another
matter, but sanitary and safe conditions for however brief the duration are a sine qua non.
The Institute on Judicial Administration–American Bar Association, Juvenile Justice
Standards allow for emergency isolation for up to 8 hours, preferably in the juvenile’s own
room with no dietary restrictions, reading material available, and exercise allowed.13 These recommended standards would appear to be in another world from the world of prisons for adults.
The American Correctional Association Standards wisely counsel a room restriction for
minor misbehavior as a “cooling off” period, with a 15- to 60-minute duration.14
Disciplinary misconduct is divided into major and minor events with a major charge allowing for up to 24 hours, prehearing room confinement with additional 24-hour segments,
apparently not limited, and subject to administrative review.15

THE WORLD ACCORDING TO THE SUPREME COURT

Contemporary decisions by the Supreme Court are almost nonchalant and consistently
out of touch with reality, in constitutionally accepting the most fundamental deprivations
imposed on inmates as legitimate consequences of conviction and imprisonment.16 Turner
v. Safely (1987) forms part of the contemporary, constitutional foundation for determining
inmate claims to fundamental rights, including First Amendment claims. Turner has
evolved into a so-called rule of reasonableness that consistently limits inmate claims ranging from visits to access to reading material. The flipside of severe judicial limits on inmate
condition claims is the expansion of deference to the opinions—and not necessarily opinions supported by evidence—of prison officials.
Turner involved challenges lodged against two Missouri prison regulations, one relating
to inmate marriages and the other relating to inmate-to-inmate correspondence. The correspondence issue in Turner is grounded in the First Amendment. The Missouri marriage rule
was characterized by the Court as a fundamental right that actually does accompany any
inmate to prison.17 Such a right will usually be traced to the Due Process Clause and characterized as substantive due process in contrast to the procedural due process (e.g., notice,
hearing, burden of proof, etc.) we normally associate with that clause. The right to marry
also might be grounded in the First Amendment as an aspect of the “free exercise clause.”

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CRIMINAL JUSTICE AND BEHAVIOR

The Court did not further expand on the constitutional basis for its view of marriage as a
fundamental right. Because Turner applied the same analysis to inmate-inmate correspondence and marriage, we may safely assume that the Court did not view either of these rights
as weightier than the other.
The Court did elaborate on the analytical framework to be used in measuring “reasonableness.” A four-prong test was announced:
1. Is there a valid, rational connection between the prison regulation and the government’s legitimate interest?
2. Are there alternative means open to the inmate to exercise that right?
3. What impact will accommodation of the asserted right have on other inmates and prison personnel?
4. The absence of ready alternative will be taken as evidence of reasonableness.18

The Court’s decision in Turner to uphold the inmate-to-inmate correspondence ban sets
the tone for the other inmates’ claims. Subject to a couple of narrow exceptions, Missouri
inmates could correspond with other inmates only when prison personnel deemed it in the
best interest of the parties involved.19 According to the trial court, the practice was that
inmates simply did not write to nonfamily inmates (Safely v. Turner, 1984).
Under the Turner reasonableness test, the proffered governmental interest need only be
legitimate (as opposed to important or substantial as required by earlier caselaw) and the
regulation need only be reasonably related to that legitimate interest (as opposed to the earlier requirement of the least intrusive means available).
Turning to the actual decision in Turner, we can demonstrate how the competing tests
produce quite different outcomes. The inmates claimed, and the lower courts accepted, that
the monitoring of inmate correspondence would be sufficient to satisfy the prison’s
undoubtedly valid security interests. A majority of the Court, however, found that monitoring was an unduly burdensome alternative not required by the Constitution, and that it
would tax limited prison resources and still not be wholly effective. Thus, a total prohibition of all correspondence with a limited class of persons (other than Missouri prisoners)
was upheld as reasonable.20
The Missouri marriage rule also at issue in Turner prohibited inmates from marrying inmates
or civilians unless the prison superintendent found “compelling reasons” for allowing the marriage. Generally, only pregnancy or the birth of a child were considered to be compelling reasons.21 After determining that marriage is a fundamental constitutional right that inmates do not
fully surrender, the Court next determined that the Missouri rule swept too broadly for rehabilitative purposes and was an exaggerated response to valid security objectives.22
In addition to Turner, two additional Supreme Court decisions, one involving visits and
the other reading material available in isolation, provide additional framework for the specific discussion of penal isolation.
Overton v. Bazzetta (2003) reviewed various limitations on prison visiting imposed by
the Michigan Department of Corrections. There were severe limitations placed on visits by
minor children and former inmates. Inmates complained that the limits on escorts for
children and those with criminal records served to deprive some of them of the fundamental constitutional right of association. The Court did not directly answer the claim of
inmates’ right of association but unanimously upheld the regulations as reasonable under

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1023

Turner. There is a hint in Bazzetta that a blanket denial of visits from those outside the
prison milieu might not be upheld.23
More recently, the Court decided Beard v. Banks (2006) upholding Pennsylvania’s ban
on newspapers, magazines, and personal photographs for inmates confined in their Long
Term Segregation Units (LTSU). The LTSU is the most restrictive of the three special units
that Pennsylvania maintains for difficult prisoners. The first such unit, the “Restricted
Housing Unit” (RHU), is designed for prisoners who are under disciplinary sanction or
who are assigned to administrative segregation. The second such unit, the “Special
Management Unit” (SMU), is intended for prisoners who “exhibit behavior that is continually disruptive, violent, dangerous or a threat to the orderly operation of their assigned
facility.” The third such unit, the LTSU, is reserved for the Commonwealth’s “most incorrigible, recalcitrant inmates.” The LTSU itself has two levels, with Level 2 the most restrictive. All inmates are assigned to Level 2 for at least 90 days and then may graduate to Level
1. Most never do.
The RHU, SMU, and LTSU all severely restrict inmates’ ordinary prison amenities. At
all three units, residents are typically confined to cells for 23 hours a day, have limited
access to the commissary or outside visitors, and (with the exception of some phases of the
SMU) may not watch television or listen to the radio.
Prisoners at Level 2 of the LTSU face the most severe form of the restrictions listed
above. They have no access to the commissary, they may have only one visitor per month
(an immediate family member), and they are not allowed phone calls except in emergencies. In addition, they (unlike all other prisoners in the Commonwealth) are restricted in the
manner at issue here: no access to newspapers, magazines, or personal photographs. These
severely restricted inmates are nonetheless permitted legal and personal correspondence,
religious and legal materials, two library books, and writing paper. If an inmate progresses
to Level 1, he enjoys somewhat less severe restrictions, including the right to receive one
newspaper and five magazines. The ban on photographs is not lifted unless a prisoner progresses out of the LTSU altogether.
Level 2 inmate Banks sued in federal court claiming that the Level 2 policy forbidding
access to newspapers, magazines, and photographs bears no reasonable relationship to any
legitimate penal objective and thus violates the Turner formula. Banks actually prevailed in
the Third Circuit with soon-to-be Justice Alito dissenting.24
The panel majority (2 to 1 decision) found that the challenged deprivations could not be
supported by evidence of rehabilitation and that the claimed security objectives simply fell
apart on even cursory examination. The case was decided on competing motions for summary
judgment, meaning that the limited trial record is in the form of sparse written material.
Where the majority in the Third Circuit refused to blindly accept the opinions of correctional
officials, then Judge Alito reflexively accepted the mere assertions of corrections officials.
Justice Souter for the Supreme Court plurality found that the prison’s desire to motivate
better behavior by the “worst of the worst” was itself enough to satisfy Turner’s requirement of a valid rational connection between policy and legitimate penological objectives.25
Justice Stevens, in dissent, cleverly characterized this as a deprivation theory of rehabilitation that has no principal of limitation.26 Justice Stevens obviously is correct in that one
could also argue that 24 hours a day, 7 days a week with no durational limits in a dark cell
is intended to induce good behavior in order to attain minimal lighting. Without some principled basis for “deprivational rehabilitation,” the courts likely will accept the inherent,
inhumane cruelty of such techniques.
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CRIMINAL JUSTICE AND BEHAVIOR

Indeed, it is not hyperbole to suggest that the dark cell example just posed is a form of
torture.27 Justice Stevens argued that the actual practices in Pennsylvania, including indefinite stays on Level 2, and the other fundamental deprivations come perilously close to
what he termed state-sponsored mind control.28 This is strong language even from the
Court’s most consistent liberal in prisoner cases.
Justice Stevens argued that the state may not constitutionally invade the sphere of the
intellect. He stated that
In this case, the complete prohibition on secular, nonlegal newspapers, newsletters, and
magazines prevents prisoners from “receiv[ing] suitable access to social, political,
esthetic, moral, and other ideas,” which are central to the development and preservation
of individual identity, and are clearly protected by the First Amendment, Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
Similarly, the ban on personal photographs, for at least some inmates, interferes with the
capacity to remember loved ones, which is undoubtedly a core part of a person’s “sphere
of intellect and spirit.” Moreover, it is difficult to imagine a context in which these First
Amendment infringements could be more severe; LTSU-2 inmates are in solitary confinement for 23 hours a day with no access to radio or television, are not permitted to make
phone calls except in cases of emergency, and may only have one visitor per month. They
are essentially isolated from any meaningful contact with the outside world. The severity
of the constitutional deprivations at issue in this case should give us serious pause before
concluding, as a matter of law, that the challenged regulation is consistent with the sovereign’s duty to treat prisoners in accordance with “the ethical tradition that accords respect
to the dignity and worth of every individual.”29

Until the Turner decision leveled all prisoner claims to a bland requirement of reasonableness, First Amendment claims were viewed by some as of a different order—as a preferred set of rights among our most fundamental rights.30 The claimed right to visits in
Bazzetta was fashioned from the constitutional right to association, which is among the
constitutional rights least compatible with incarceration. The hypothetical extension of a
right to free association ultimately is an unsustainable attack on penal incarceration itself.
The Stevens concept of enforced mind control, through the deprivation of ideas and
images of persons closest to us, goes to the heart of personhood and is in the realm of penal
isolation that is at the core of my concern. Although the right of association is inherently limited by the essence of imprisonment, it does not also follow that the interior of a prisoner—
the mind and intellect—is subject to any similar limitation. There should be no debate on the
acceptability of various degrees of mind control.
AMENITY, PRIVILEGE, AND PENALTY

The nine justices composing the Supreme Court are hardly monolithic in their thinking.
Justices Thomas, Scalia, and Alito’s views of prisons and prisoners are radically different
from that of Justice Stevens. I do not propose to develop that contrast much beyond the following point: The more conservative justices have a very circumscribed and, in my view,
wholly naive and flawed view of the meaning of various aspects of prison life.
Justice O’Connor’s conservative pitch was never as fixed as that of Justices Scalia and
Thomas, but her conservative credentials never were in doubt. Justice O’Connor’s views as
expressed in McKune v. Lile (2002) are telling and representative of the Court’s majority

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view. In this decision, the Court reversed the Tenth Circuit, which held that a Kansas rule
that did not grant immunity from prosecution while requiring that inmates admit to all past
sex offenses as a condition of treatment violated the Fifth Amendment.
In this context, the Fifth Amendment is activated only after there is a finding of compulsion leading to jeopardy. The two previous federal courts that had ruled in McKune found
compulsion in the automatic transfer of the plaintiff from a medium to a maximum security facility, limited access to the gym and yard, dramatic reduction in pay, substantial
restrictions on visitation, and similar deprivations.
The judgment of the Court was delivered by Justice Kennedy in a plurality opinion, with
Justice O’Connor filing a separate opinion concurring in the judgment but disagreeing on
the test adopted by the plurality for determining compulsion in a prison setting. Three justices along with Justice Stevens, authoring a stinging rebuke to the five who joined in the
judgment of the Court.
Whatever else we now need to know about prison sex offender treatment and the requirement of a full admissions as to “priors” without immunity from prosecution, it is legally
safe for clinicians and administrators to insist on such admission; it is safe even to report
such admissions to a prosecutor, and safe to automatically penalize the nonadmitting
inmate with discharge from the program along with changes as severe as transfer to a maximum security prison. Whether this legally protected maneuver also is good policy is yet
another question.
Penalties, like beauty, are in the eye of the beholder. Where some see penalty, others see
withdrawal of opportunity. When a court unearths a penalty it wishes to deconstruct, it may
begin by calling it a loss of privilege or perhaps an expectation or a desire, but not a reasonable one. A prisoner’s right to tolerable living conditions is so circumscribed that what
might be a serious loss to “real people,” in Justice O’Connor’s words, are “changes in living conditions [which] seem to me minor.”31
In other words, the plurality—joined by O’Connor—is of the view that if one already
has lost a good many of the amenities of ordinary life, the loss of a few more on the way
to the amenity basement is minor. Pennsylvania’s LTSUs and other jurisdictions’ supermaxes clearly qualify as the amenity basement.
Actually the reverse of the O’Connor thinking is far more likely to be true; small things
(to us) become more valuable to prisoners. The size of a window, an extra hour in the yard,
access to commissary, a single cell, access to regular showers, group activities, visits, reading material, pictures, and the like become precious to inmates, and the threat of their loss
might easily be seen as the type of compulsion lying at the core of the Fifth Amendment.
Not after McKune, however, which allows treatment termination and all of the types of
losses just described if an inmate in treatment refuses to admit—and face the consequences
of—guilt to all prior sexual misconduct.
With Bazetta’s acceptance of serious limits on visits, and its refusal to characterize a visit
as a human right, and Beard’s implicit tolerance for extremely severe conditions for penal
isolation, it seems rather quixotic for me to move forward and propose radical limits on isolation/segregation practices and conditions. I will do so after one further brief excursion
into the world of prison according to the Supreme Court.

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CRIMINAL JUSTICE AND BEHAVIOR

THE “CONDITIONS” DECISIONS

Coexisting with such decisions as Bazzetta and Beard is the foundational decision in
Rhodes v. Chapman (1981). Rhodes was decided 6 years before Turner and held that it was
not unconstitutional to house two inmates in cells designed for single occupancy.32 The federal district court found that the prison’s food was adequate as was the ventilation system.
Noise was not excessive. Dayroom and visiting space were deemed adequate, and violence
was not disproportionate. The ratio of security staff was found sufficient for control purposes.
The district court, upheld by the Sixth Circuit, went on to stress the long terms that
inmates were serving, the severe limitations on movement, and the physical and mental
injury experienced from long exposure to these conditions. According to the lower federal
courts, the sharing of 63 square feet of living space, even with substantial out-of-cell time,
created unacceptable cruel and unusual conditions.
In reversing, Justice Powell noted that prison conditions must not involve the wanton and
unnecessary infliction of pain nor be grossly disproportionate to the severity of the underlying crime. Onerous conditions alone or in combination may deprive inmates of the minimal
civilized measure of basic needs.33 On the other hand, opined Justice Powell, conditions that
are restrictive, even harsh, are part of the penalty offenders pay for their crimes.34 Rhodes
thus sets some general boundaries for the constitutional and the unconstitutional conditions
of penal confinement. Somewhere between the wanton and needless infliction of pain and
merely harsh conditions is that place where inmates may be required to live.
The majority found that the district court’s own findings refute its conclusion: There is
no basis for finding pain, let alone the needless and wanton infliction of pain. Thus, doublecelling alone, failure to follow design capacity, even violation of industry standards for
acceptable space, do not themselves create cruel and unusual punishment.
Only Justice Marshal dissented in Rhodes, finding that the limited, shared cell space
itself created cruel and unusual punishment.35 The district court’s surmise that living for so
long in such small space invariably causes future harm ultimately was not enough to support his conclusion of unconstitutionality. Thus, the space between wanton and needless
suffering and the merely harsh is, indeed, wide.
In Wilson v. Seiter (1991), the Supreme Court took yet another step to enhance the power
of corrections officials and also to reduce the prospects for successful inmate claims regarding conditions of confinement. The Supreme Court held that even if conditions of confinement deprive inmates of a basic human need, this alone may not be cruel and unusual
punishment unless the infliction of pain is wanton, that is, done deliberately, knowingly,
and with the very objective of causing harm.
This deliberate indifference standard is borrowed from the medical, mental health, and
dental care cases and originated in Estelle v. Gamble (1976). Farmer v. Brennan (1994),36
a “duty to protect” decision, further developed the meaning of deliberate indifference,
emphasizing the need for actual knowledge of the relevant facts related to the creation of
the duty, the violation of which led to the harm suffered.
Thus, whereas overcrowding may violate the Eighth Amendment, double celling in a cell
designed for one without more does not.37 Even if conditions of confinement are unconstitutional, inmates must also show a culpable mental state on the part of the custodians.
Parenthetically, the worse the conditions and the longer they have existed, the easier it is to
show an official’s deliberate indifference.

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Turner, Bazzetta, and Beard demonstrate how First Amendment and other fundamental
constitutional rights for inmates are now placed on an equal plane and that visits from outsiders, along with access to reading material, are not viewed as fundamental human rights.
Rather, they are “amenities” that may be deprived on the mere assertion by prison officials
of a penological or behavioral need.

THE ISOLATION-RESTRAINT PARADIGM38

Having painted myself into the dark corner of judicial precedent, I here attempt to escape
by crafting a novel approach to challenging extreme penal isolation. Penal isolation, I suggest, should be analyzed constitutionally much as physical restraints are now. Recent
Supreme Court case law and longstanding lower court precedent have insisted that prisons
and jails limit their use of physical restraints to situations in which those restraints are necessary for contemporaneous control and security—not as deterrents or punishment.
It is my belief that isolation and use of mechanical restraints should, as a matter of law
and policy, be treated as almost identical interventions in terms of rationale, duration, and
monitoring.39 Isolation units are not a fixed, invariable condition of penal confinement.
Penal isolation is variable in its extremes of duration and deprivation. At its most contemporary extreme, the Pennsylvania LTSUs for example, it should simply be banned; in its
less onerous forms, isolation should be sharply limited, closely monitored, and very closely
regulated.40 This proposed reform may well require abandonment of the supermax along
with the even more restrictive, primitive “dark cell.”
I want to emphasize that I am not railing against some ancient practice or one confined
to “plantation mentality” states. Consider Seventh Circuit Court of Appeals’ Judge Evans
opening description of conditions in 2002 at Wisconsin’s Secure Program Facility, formerly
Boscobel Prison.
Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete
floor or slab; denied any human contact; fed nothing but “nutri-loaf”; and given just a modicum of toilet paper—four squares—only a few times. Although this might sound like a stay
at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002.
Whether these conditions are, as a matter of law, only “uncomfortable, but not unconstitutional” as the State contends, is the issue we consider in this case.41

These conditions are part of the prison’s Behavioral Management Program, and according to prison officials, the varying degrees of restrictions are not intended as punishment,
merely an effort to achieve rule compliance. Prison officials are learning that far more
restrictions—indeed, the infliction of pain—can be done in the name of behavioral change
than punishment.42
What I will term first-degree isolation, at times referred to as “dark cells,” consists of
inmates held in solitary confinement subject to near social isolation and near total sensory
deprivation by lack of access to light, sound, or fresh air. The only human contact is with staff
and that would be only when required (e.g., escort, delivery of food) and then nominal. By
first-degree isolation, I mean to describe conditions that exceed even Level 2 of Pennsylvania’s
LTSU system. I have in mind the early conditions and practices in Pennsylvania’s Eastern
Penitentiary.43
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CRIMINAL JUSTICE AND BEHAVIOR

Second-degree isolation, which also has its roots in the early history of American corrections, is far more common today than the “dark holes” and penitential silence of the
eighteenth century. This form of isolation more nearly resembles the RHUs, SMUs, and
Level 1 of the current Pennsylvania segregation system and the Wisconsin Behavior
Management Program just described.
Inmates are housed typically in single cells with solid doors for 23 hours a day, with limited access to outside light and air, yet able to hear some movements outside their cell, and
even yell or “tap” (in code) as communication. Meals are taken alone in the cell; exercise
is indoors, solitary, and highly restricted; and access to programs, visits, telephone, radio,
television, showers, and reading material is substantially limited. This is characteristic of
segregation units and the typical so-called supermax.
“Second-degree” isolation or solitary confinement, then, conveys a set of circumstances
beyond life in a single, quiet cell. By definition, it includes deprivation of many of life’s
most basic components that link one to social intercourse, the rudimentary sights and
sounds of life, and basic decision-making on life’s most mundane choices. As one moves
from such isolation to the still deprived world of ordinary prison conditions, we pass an
uncertain line that divides isolation from what Justice Powell in Rhodes v. Chapman would
describe as the acceptably harsh conditions of penal confinement. The critical factors in this
divide would be out-of-cell time, congregate activity, exercise or “yard time,” and access to
work and available programs. Put another way, the greater the social isolation and sensory
deprivation, and the longer the duration of confinement, the more eligible the unit is to be
labeled and condemned as penal isolation.
Calling for a legal and policy ban on first-degree isolation while refining and circumscribing second-degree isolation does require some line drawing and further distinguishing
of the various forms of custodial arrangements that fit one or the other. First, I shall attempt
to describe the various forms of security arrangements currently in use in this country.
Except for the true supermax facility—the federal prison at Florence, Colorado, for
example—the penal isolation that concerns me is distinguishable from the security level
assigned a particular prison. Prisons generally are classified as maximum, close, medium, minimum, or a camp (although there is no assurance that prisons in different jurisdictions use these
security terms in precisely the same fashion) (Levinson & Gerard, 1986, p. 291). In general,
however, security levels of prisons will turn on such factors as perimeter barriers, detection
devices, mobile patrol, gun towers, internal architectural features, housing, and staff-inmate
ratios (Levinson & Gerard, 1986, pp. 295-296). Within any given prison (certainly the maximum, close, and medium prisons), an inmate will likely be assigned a custody level that
addresses such items as out-of-cell time, need for restraints and escorts, visits, searches, and
other similar issues (Cooksey, 1999). In general, except in supermaxes, ordinary confinement—even of maximum security inmates—allows them some access to congregate dining,
outdoor exercise, and out-of-cell programming, and therefore does not approach the level of
social and sensory deprivation necessary for inclusion in the category of “isolation.”
There are, however, a variety of nonordinary confinement settings that are indeed isolationary. The segregation units within a particular facility to which an inmate may be
assigned as discipline or for administrative reasons (“disciplinary segregation” and “administrative segregation” units) are typically characterized by the kind of extreme deprivation
with which I am concerned. In addition, protective custody units present a variety of issues,
some of which are pertinent here—like the degree of permissible “consensual” isolation—
and many that would take us too far astray.44
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Prison administrative codes, some prison officials, and the courts to a certain extent
attempt to draw a bright line between disciplinary and administrative segregation or isolation. For example, in New York, placement in a SHU (security housing unit) will be categorized as administrative segregation if the facility has determined that the “inmates’
presence in general population would pose a threat to the safety and security of the facility” (NYCRR, 2002). Administrative segregation may be imposed for extraordinarily long
terms and generally without a pre-deprivation, due process–type hearing.45 Administrative
segregation terms generally are indefinite, although some administrative review process
may be required.46 On the other hand, although disciplinary segregation terms tend to be
definite and, according to one corrections expert,47 often in the 15- to 30-day range, these
distinctions are often more formal than real.
Corrections officials may move “short-term” disciplinary segregation inmates to administrative segregation by the simple process of reclassification if the disciplinary term is
deemed too brief.48 As for conditions of confinement, disciplinary and administrative isolation are very similar in prisons across the nation.49
The harm of extended isolation does not correlate with intent to punish versus intent to
preserve security. Furthermore, the harm caused by extended isolation under the most
straightened or barbaric conditions is not related to any rationale for the isolation. The virtually unregulated and unreviewable opportunities for crossovers between disciplinary and
administrative segregation provide strong support for acknowledging the conceptual differences while focusing reform efforts on pragmatic grounds.50

HISTORY AS A GUIDE

Pennsylvania’s Eastern Penitentiary, which opened in 1829 and was intended to confine
inmates while shepherding them to reformative penitence, is eerily similar to contemporary
supermaxes and LTSUs.51 Eastern’s benighted inmates, however, could work (weave, make
shoes) in their cells, and there was, however misguided, a reformative ideal upon which the
practice was predicated.52 The imposing 16-foot-high cells were part of a regimen of
silence, physical separation, discipline, regimentation, and industry designed to achieve
human change. Penal isolation today offers no pretense of reformation and provides no
vocational options, although, as noted earlier, some isolation facilities or units use a level
system that allows for enhanced amenities—for example, television sets and radios and
additional out-of-cell time—thus somewhat reducing the sensory and social isolation.
Tocqueville and Beaumont and the aspiring novelist Charles Dickens were among
Eastern’s early visitors.53 Tocqueville and Beaumont were impressed.54 Dickens, in contrast, found
this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than
any torture of the body, and because its ghastly signs and tokens are not so palpable to the
eye and sense of touch as scars upon the flesh because its wounds are not upon the surface,
and it exhorts few cries that human ears can hear; therefore I the more denounce it, as a secret
punishment which slumbering humanity is not roused up to stay.55

In the 19th century, theories of crime causation led inexorably to theories and practices
of crime control.56 The temptations and confusion of the outer world were believed to have
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led the godless and morally weak to succumb to temptation. The well-ordered and isolated
confines of the penitentiary, along with required work, would lead to penance, reform, and
a newly acquired work ethic. Or it just might lead to self-mutilation, suicide, or a lifetime
of despair.
When the ideas of isolation and silence as penance and the prison as monastery ultimately succumbed, what followed was a pernicious system of leasing inmates, typified by
the Elmira, New York, reformatory system, which quickly deteriorated into a brutal, overcrowded school-for-crime phenomenon.57 Zebulon Brockway, Elmira’s first superintendent, came to view his prisoners as degenerates, and the whippings and other physical
assaults he authorized were pursued as reformative, not punishment.58 Reform rarely has
been kind to the inmates.
Curiously, today’s binge with multimillion-dollar supermaxes and the increasing reliance on
extended isolation in various special management units rests on no theory of criminal, or
even serious rule-violation, behavior. It is a management decision that is purely reactive,
rarely reformative, and rarely reviewed or rethought. Corrections expert Chase Riveland
points out that the proliferation of supermax housing is based partly on the symbolism of
showing how tough a jurisdiction is with the motive force emanating more often from governors and legislators than corrections officials.59
Returning more closely to the historical context, there is, of course, a long history of
other failures in the use of harsh measures of imprisonment in the almost 200 years since
Eastern opened its doors. Although the line from these early experiments to our current
excessive use of penal isolation is not unbroken, the heritage is clear, even if the genetic
structure is a bit diluted.

THE PROBLEM WITH EXTENDED PENAL ISOLATION

One may approach “the problem” in a distinctly rights-oriented fashion, in an empirical
manner, or attempt to blend values with data. The human rights approach, of course,
requires no validation, no debate about the efficacy of this or that study.
Justice Stevens’s observed in Overton v. Bazzetta, “It remains true that the restraints and
the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual”60
Of course, our ethical tradition may have slipped a bit when the former Attorney General
of the United States recently argued essentially that torture should be defined as a near
death experience and the neo-torture, “rights-oriented” position was that torture may,
indeed, fall short of provoking excruciating and agonizing pain but may include physical
suffering and lasting mental anguish (Smith & Egger, 2004).
Justice Stevens’s approach to the Eighth Amendment is not unique. It is his conclusions
on dignitarian values, civilized standards of decency in a maturing society, that often put
him at odds with his judicial colleagues. Where Justices Thomas, Scalia, and Alito would
not blink at long-term penal isolation under the most straightened of circumstances, Justice
Stevens likely would place a human rights shield around such an inmate and create constitutional insulation.
As for the empirical approach to extended penal isolation, lawyer-psychologist Craig
Haney writes,
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There is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasting for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects. The
damaging effects ranged in severity and included such clinically significant symptoms as
hypertension, uncontrollable anger, hallucinations, emotional breakdowns, chronic depression, and suicidal thoughts and behavior. Of course, it is important to emphasize that not all
supermax prisons are created equal, and not all of them have the same capacity to produce the
same number and degree of negative psychological effects.61

Psychiatrist Jeffrey Metzner and psychologist Joel Dvoskin recently asserted that most
claims that long-term segregation necessarily causes particular kinds of psychological harm
overstate what actually is known (Metzner & Dvoskin, 2006, pp. 761, 765). The authors,
highly visible experts in the field of correctional mental health, appear to concede there is,
indeed, harm; observable harm, but the harm tends to be overstated.
On the other hand, their flat statement that “no one knows the long-term psychological
effects of segregation on inmates, especially those with no pre-existing serious mental illness” (Metzner & Dvoskin, 2006, p. 767) will undoubtedly provide fuel for the “segregation is good” crowd. What the authors never discuss is the issue of how much of what
degree of scientific acceptability needs to be available to condemn a policy and practice that
challenges our basic notions of civilized decency. I would argue that the stronger the case
for condemnation based on ethical considerations, the less need there is for perfect, or even
near perfect, research on point.
If, for example, the conditions I describe as first-degree isolation were found to exist, or
about to be resurrected, would Metzner and Dvoskin call for research? Might they describe
the suicides and insanity reportedly rampant at Auburn in 1823 as merely anecdotal?62 They
view supermax prisons as “an unfortunate and unpleasant necessity in modern corrections”
(Metzner & Dvoskin, 2006, note 83 supra at 70). Others, myself included, view them as
sterile, human wastebins mixing the “worst of the worst” with political prisoners, suspected
gang members, high-profile prisoners, and the inept or incautious.
There is also a burden of persuasion issue here. I would assert that those who propose or
support prolonged penal isolation must show that the psychological harm asserted is negligible, human values are safeguarded, and the gains realized likely exceed any harm. I do
not believe that showing can be made.
I have visited any number of penal isolation units and interviewed many of their occupants. I have spent considerable time at the Ohio State Penitentiary (OSP), Ohio’s supermax. I visited OSP before inmates actually arrived, after their initial arrival, and years later
when OSP de facto became a maximum-security prison with a small number of inmates
believed to be highly dangerous kept in very close confinement.
During the early, experimental, rigidly harsh days of OSP, inmates chafed at the sterility
and isolation of the place, at the highly restricted and fully restrained movement to see a
doctor, the limited exercise, and the like. OSP was deemed to be so potentially psychologically destructive that an agreement was reached that no inmate with a serious mental illness or at risk for developing such illness could be transferred or remain there.63
This was an agreement reached by class counsel, the Attorney General’s office, and
myself, acting as court-appointed monitor in the case of Dunn v. Voinovich (1993). We did
not debate the niceties of existing research in reaching this exclusionary policy. It rested on

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our shared experience, the available evidence, and the desire of Ohio’s correctional leadership to “do the right thing.”

MECHANICAL RESTRAINTS64

Putting aside potential legal arguments seeking to prohibit penal isolation based on
empirical evidence of harm and human rights values, there is the previously unexplored
analogical argument comparing mechanical restraints with physical isolation.65 When
mechanical restraints are legally challenged, it is most often within the framework of the
Eighth Amendment’s ban on cruel and unusual punishment.
Isolation, you will recall, may be challenged on the basis of a First Amendment claim, a
Turner reasonableness claim, or, most likely, as Eighth Amendment, cruel and unusual punishment claim. The restraint argument developed here is analogical. Thus, it does not have
the independent status of the Eighth Amendment claims. The mechanical restraint argument, at bottom, asks that we examine the law and policy on point and ask if the use of
mechanical restraints is sufficiently similar to the use of isolation that the radically different results are unjustified.66
Mechanical restraints include any means of restricting an inmate’s or detainee’s ability
to react physically. They usually involve the use of such devices as leather straps, cuffs,
braces, and most recently, a specially designed chair to which the person is strapped.67
The American Correctional Association rules out mechanical restraints for punishment
and requires warden (or designee) approval, early medical involvement and monitoring,
and other precautionary measures when restraints are utilized.68 The use of restraints is to
be purely preventive (for example, to prevent escape, self-harm, injury to others) and
applied for no more time than is absolutely necessary.69 Many systems require that a cell
extraction leading to restraint, as well as the actual application, be videotaped; such videos
(and I have seen hundreds) are invaluable monitoring and training resources.
Correctional law mirrors correctional practice in this area. In 2002, the Supreme Court
issued its first ruling on the use of mechanical restraints in corrections. The Court held in
Hope v. Pelzer that Alabama’s use of a “hitching post” was clearly unconstitutional.70 The
opinion is awash with concern for dignitarian values. Hope was punished for refusal to
work and made to remove his shirt; he was attached to a crossbar-type post, which held his
arms above shoulder height, and then was forced to remain standing in the sun with no
bathroom breaks and little water.71
Although Justice Stevens discussed the dehydration and burned skin that shackled
inmates experienced, this transient harm was not central to the decision.72 What he wrote
for the majority is
As the facts are alleged by Hope, the Eighth Amendment violation is obvious. Any safety concerns had long since abated by the time petitioner was handcuffed to the hitching post because
Hope had already been subdued, handcuffed, placed in leg irons, and transported back to the
prison. He was separated from his work squad and not given the opportunity to return to work.
Despite the clear lack of an emergency situation, the respondents knowingly subjected him to
a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the
restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of
the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created

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a risk of particular discomfort and humiliation. The use of the hitching post under these circumstances violated the “basic concept underlying the Eighth Amendment, which is nothing
less than the dignity of man.” This punitive treatment amounts to gratuitous infliction of “wanton and unnecessary” pain that our precedent clearly prohibits.73

Hope accords with longstanding law in the Federal Courts of Appeal and District Courts.
Although mechanical restraints may be employed as an aspect of the legitimate use of force
to prevent violence or property destruction and as a means to temporarily restrain a mentally ill inmate who is acting out, they may not be used for punishment alone.74 For
example, in Spain v. Procunier, in 1979, the Ninth Circuit condemned the excessive use of
neck chains (Spain v. Procunier, 1979, at 197). In Stewart v. Rhodes (1979), four-point
restraint shackling an inmate to a metal bed frame was condemned. When mechanical
restraints are judicially upheld, it is not for punishment but to prevent physical harm to the
inmate or others; the duration is relatively brief (measured in hours), there is clinical and
security monitoring, and meals and bathroom breaks are provided.75
Accordingly, the inappropriate use of mechanical restraints, even for a relatively brief
period, may result in the award of damages.76 The condemnation of such restraint may be
based on an excessive use of force analysis or a failure to provide a due process hearing for
the interference with a protected liberty interest.
Sadler v. Young, a modest federal district court decision, has wonderful didactic qualities
related to the use of mechanical restraints on inmates. Sadler, a Connecticut inmate farmed
out to the stern Virginia prison system, apparently slapped a food tray from the hands of a
guard and was then immobilized for about 48 hours in five-point restraints.77 He was
dressed in undershorts, was uncovered, and was released without incident six times for
about 15 minutes each to use the toilet and eat.78
In Sadler’s action for damages, the jury found for the defendants, but in the instant decision, Chief Judge James P. Jones ruled as a matter of law that although the initial restraint
could be found constitutional, the continued restraint was not.79 A new trial was ordered on
the issue of damages alone.80
At the time of the incident, Sadler was in 23-hour-a-day lockdown and, thus, received his
meals on a tray through a slot in the door.81 He did not want his tray on this particular day
and so informed the officer who brought it to him, Officer S. K. Young. Young continued to
slide the tray, and when Sadler blocked it or shoved it (depending on the testimony), the tray
spilled and some of the contents got on Young.82 There was a dispute as to the time lapse
between the tray incident and the eight officers extracting and then restraining Sadler.83 It
could have been as much as an hour or as brief as 40 minutes.84 In either case, the argument
for a white-hot emergency is cooled. In any event, Sadler was entirely compliant with the
cell removal and the application of the five-point restraints.85 This, of course, is crucial if the
objective of the restraint is to prevent damage or injury or, as the court finds, it was to impose
needless punishment and an “atypical and significant” hardship requiring due process.86
The court initially found a violation of Virginia’s policy on restraint, which calls for removal
of restraints when inmates’ dangerous or disruptive behavior has subsided and no threat
exists.87 This is relevant to “state of mind” considerations as opposed to establishing a federal
violation. The defendants could not provide any satisfactory answers concerning just what the
danger was, why it was decided that the supposed danger continued, why other options (of
which there were five) were not used, or even why Sadler ultimately was released.88

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Sadler, on the other hand, showed convincingly that even the initial restraint was punitive; that he suffered greatly during the 2-day ordeal, including physical and mental pain,
hallucinations, and lack of sleep; and that he was required to lie in his own bodily waste.89
These, of course, parallel the type of complaints made by many inmates in penal isolation.
Chief Judge Jones treated the constitutional basis of the major claim as one of excessive
force under the Eighth Amendment.90 This required a showing that the force was applied
maliciously and sadistically to cause harm and that the wrongdoing was objectively harmful enough to reach constitutional proportions.91 The court found it reasonable that the officers initially believed that Sadler presented a danger, that he slapped a tray at the officer
versus merely blocking it, and that other available options might not work.92 Thus, the
judge found that there was no showing of initial malice.93 What sort of danger Sadler initially posed, locked in his segregation cell with the food slot closed, was never described.
There exists the possibility that Sadler was yelling, but that hardly poses the sort of danger
calling for almost 2 full days of five-point restraints.
This is an important matter in that although the initial, and in my view highly dubious,
decision to extract and restrain Sadler does not necessarily show malice, any reasonable
basis loses force as the restraint is prolonged. Parenthetically, isolation should be viewed
the same if it is permissible only as a temporary measure to be utilized so long as the concern giving rise to its application continues to exist.
In Sadler, the judge confidently found that no reasonable jury could have determined
that the force applied needed to be continued after the first 3 hours when the inmate supposedly stopped yelling.94 This would mean that Sadler was unlawfully restrained for some
45 hours, an obviously relevant point on damages. At another point, the judge somewhat
undermines this finding by stating that it is only necessary to decide that nearly 48 hours is
too long and not whether release should have occurred when the yelling stopped or the
uneventful first, second, or third temporary releases.95

THE LONG ROAD HOME: ISOLATION TO RESTRAINTS TO REFORM

Again, it is interesting to contrast the Supreme Court’s concern for a 7-hour outdoor
shackling with the dozens of decisions blindly accepting, if not actually endorsing, prolonged and terrible conditions with terrible consequences. Let me add a few more examples to those provided earlier.
Although the Court of Appeals for the Seventh Circuit has recently confirmed the view
that the Eighth Amendment prohibits wanton infliction of psychological as well as physical pain (Calhoun v. Detella, 2003), it has not expressly held that social isolation and sensory deprivation may serve as bases for a claim under the Eighth Amendment. Rather, in
Bono v. Saxbe (1980), the court held: “Inactivity, lack of companionship, and a low level of
intellectual stimulation do not constitute cruel and unusual punishment even if they continue for a indefinite period of time.”96
In Wilkinson v. Austin, the Court dealt with procedural due process issues related to confinement in the Ohio State Penitentiary (OSP).97 After Ohio inexplicably conceded the existence of a liberty interest in avoiding assignment to OSP, the unanimous Court easily found

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a liberty interest and required a featherweight type of procedural due process incident to a
transfer to OSP.98
Any Eighth Amendment claims incident to the Austin litigation previously were
resolved. However, one can detect a sense of substantive acceptance by the Court in some
of its discussion:
For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24
hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the
especially severe limitations on all human contact, these conditions likely would apply to most
solitary confinement facilities, but here there are two added components. First is the duration.
Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. Although any of these conditions standing alone might
not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.99

Justice Kennedy, writing for the Court, goes on to note that “OSP’s harsh conditions may
be required in light of the danger that high-risk prisoners pose to prison officials and other
prisoners.”100 Thus, the curiously unanimous Court in Austin accepts the onerous conditions
then extant at OSP as part of the Sandin “atypical and significant” analysis.101 However, as
I earlier noted, there is not a hint of even mild concern about the components and consequences of such confinement.102
Some might suggest that the long road home should begin with In re Medley, a 117year-old Supreme Court decision.103 Medley involved a state inmate with a death sentence who successfully argued that a change in the law after his offense that required
that the warden keep such convicts in solitary confinement was a prohibited ex post
facto law. The majority opinion found that solitary confinement, defined as exclusion
from human associations and its terrible psychological impact on prisoners so confined,
was an additional punishment not authorized by law at the time of the inmate’s
offense.104 The Court was constrained to order the release of the prisoner because it had
no other remedial options.
Medley, however, takes us only a little way in our contemporary concern about isolation. Why? The use of penal isolation was not condemned in general; it was merely found
to be sufficiently harsh to be an ex post facto—that is, not then authorized—punishment.
The majority’s reliance on the much older Philadelphia system of silence and the mental
suffering it caused seems quite misplaced where a death sentenced inmate was to be
kept in mandatory solitary confinement for only about 4 weeks, with guaranteed access
by various visitors, and with no mention whatsoever of the particular conditions of
confinement.105
In sum, with the notable exception of housing inmates with mental illness in isolation,
the courts have not been receptive to adult inmate, isolation-related claims for damages or
injunctive relief. The restraint cases, however, may serve as a foundation for my argument
that penal isolation and use of restraints are far more alike than different and that the same
principles for use should apply.

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AND NOW?

What follows is a straightforward pitch for reform, for what I think should be done with
the abhorrent practice of long-term penal isolation. First, the use of the “dark cell,” of the
most extreme forms of social and sensory penal isolation or segregation as described earlier,
should be totally banned from our penal facilities as an affront to the most basic notions of
civilized decency and, therefore, a violation of the Eighth Amendment. The type of penal
isolation characterized here as “second degree” may be permitted but only on the model of
the permissible use of mechanical restraints. As with restraints, extended isolation—the purposeful deprivation of basic human needs for sensory and social stimulation—should never
be used for punishment, only for control and only for very limited periods.
As with restraints, two types of uses should be anticipated: security related and therapeutic. Relying on the restraint model in either situation, use of isolation should be based
on an immediate need, and only after other, less deprivational alternatives have been considered, recorded, and rejected. The rationale or trigger for any isolation determines the
permissible duration of the stay with a relatively brief (measured in days) limit on consecutive days. Medical and security monitoring must be required. Where the inmate appears
to remain “dangerous,” after the lapse of a specified time, a committee of security and
program/treatment staff, presumably already in place, should meet to devise a plan to
achieve both security and behavioral changes in the inmate. Where the isolation imposed is
part of an ongoing treatment regimen, then, of course, the treatment team would be monitoring these events and altering the treatment as needed.
Although the reflexive and prolonged use of isolation for an acting-out prisoner may produce short-term gains, such use likely will replicate and reinforce the basis for the offending behavior over time (Coltman, 2004, pp. 143, 144). Thus, the best practice would be to
use limited isolation only in conjunction with an overall treatment or behavior modification
plan. More generally, however, therapeutic seclusion also may be used to contain a clinical
situation (agitation, assaultive behavior) by providing a safe environment. There is no clean
line between a clinical situation and one that is not. However, when the inmate is known to
have a diagnosis of mental illness and is in a treatment unit, it is easy to deal with the control problem as part of the treatment regimen. In so doing, any complaints about the isolation may then be dealt with under Estelle v. Gamble (1976), which concerned a deliberate
indifference to proper medical care claim. An Estelle claim, although still difficult, may be
a bit easier for an inmate to prevail upon than a “malicious and sadistic” use of force claim.
To the extent that the use of prolonged penal isolation is reformed on the model of the
acceptable use of mechanical restraints and as part of a treatment or behavior modification
program, there is not only a paradigm shift but also a cultural and linguistic shift.
Disruptive behavior does not become a violation and a disciplinary event; it is “acting out”
and is dealt with as part of treatment or behavioral modification protocol.
The niceties of the therapeutic versus security distinction need not detain us here. My point
is to emphasize that, whether isolation is viewed as therapeutic or purely for security, there
must be urgency in the application, a very limited duration, and a concern for oversight and
medical monitoring. The current uses of extended penal isolation are more often than not
confessions of failure by corrections, a reflexive get-rid-of-the-person rather than an attempt
to get-rid-of-the-problem. In so doing, of course, many inmates are made far worse.106

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For me to critique the current uses of isolation does not actually create a concomitant
obligation to present a blueprint, complete or otherwise, for change. I realize that there are
some inmates who are dangerous and disruptive and who may remain so despite the best
efforts of staff. On the other hand, we should ask what are our “best efforts?”107 Is it basically and simply to impose segregation as a discrete punishment or to reclassify a troublesome inmate and order transfer to a maximum or supermax prison? Regrettably, for the
most part, those are the best efforts.
I certainly need not mediate between the cognitive-behavioral approach to treatment so
popular here and the psychotherapy approach more popular in Great Britain, and especially
so at the Grendon Prison in the operation of its therapeutic community for well over 40
years (Jones, 2004). There are, however, a number of possible approaches well described
by this nation’s leading expert, Hans Toch.108
I fully understand that my reform proposal calls for a major revision of prison disciplinary
codes. Extended isolation of the second-degree variety for disciplinary purposes simply would
no longer be available. However, I would raise no objection, for example, to what is termed
“keeplock” in New York where an inmate is given a limited, 23-hour-a-day confinement to the
inmate’s own living area while awaiting a disciplinary hearing or a 10-day disposition on a
finding of guilty.109 This is not unlike a denial of bail for an outside criminal charge.
Where a keeplock-like disposition is not feasible because the inmate so sentenced
disturbs or threatens other inmates or staff, then perhaps there should be a relatively small
unit designed to house such inmates. The critical point to absorb is that with a disturbeddisruptive inmate, a form of insulation, not penal isolation, may be required. Thus, access
to sensory and social stimulation must be provided along with such “amenities” as exercise,
reading material, telephone access, and such restorative programs as are compatible with
the inmate’s behavior. Such a unit should be used as a last resort requiring a supportive
record and having only the function of separating (i.e., insulating) the inmate from others
and not imposing the destructive isolation previously described.110
For the chronic and disruptive violator, then, the approach would have to include a
restorative-reformative program. For the “acute” violator, there remains referral for criminal prosecution, loss of good time and a variety of privileges, loss of work, and transfer. I
also understand the difficulty of reducing sanctions in a world where very severe sanctions
are routinely imposed and expected.111 The problem, however, is not beyond resolution, a
resolution that must be found given the profound harm and value disruption caused by
extended penal isolation.
My primary concern here has been the imposition of extended terms of penal isolation
under conditions that impose extreme measures of social and sensory deprivation. Of
course, when the conditions of confinement also involve lack of sanitation, poor ventilation, extraordinary levels of noise, risks of physical harm, inadequate food, and the like, the
case against such isolation becomes even clearer (Collins, 2004). Indeed, assuming that the
conditions of isolated confinement are in some fashion onerous but marginally, constitutionally acceptable, the harsher the conditions, the less time legally available for the use of
such isolated confinement (see, e.g., Mitchell v. Maynard, 1996).
Thus, I have elected to approach extended penal isolation somewhat apart from the
type of add-on, inhumane conditions discussed earlier. One may, then, envision a hygienic,
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sterile physical environment, with adequate food and water, some opportunity for large
muscle activity (if only in-cell exercise), acceptable levels of heat and cold, a decent diet,
and the like, but with the basic conditions of second-degree isolation previously described.
I am far from alone in my concern about isolation. The UN’s Standard Minimum Rules
for the Treatment of Prisoner calls for the complete prohibition of punishment by placement in a dark cell.112 Andrew Coyle, head of Great Britain’s International Center for Prison
Studies, considers it a basic principle of reform that efforts should be made to abolish solitary confinement as a punishment or certainly to restrict its use (Coyle, 2002, p. 80).
Professor Mushlin notes that a number of respectable professional groups, largely to no
avail, have called for the curtailment of second-degree penal isolation.113
Finally, a proposed Third Edition to the ABA Criminal Justice Standards on the Legal
Treatment of Prisoners has offered standards on point that if adopted would be quite progressive:
Standard 23-2.7 Cell restriction and segregated housing
(a) Prisoners restricted to their assigned living quarters or placed in segregated housing
pursuant to disciplinary, administrative, or classification action may be physically separated
from other prisoners, but should not be deprived of those items or services necessary for
the maintenance of psychological and physical well-being. If services and programming
restrictions are imposed, they should not extend to light and dark, ventilation, regular
meals, medical and mental health care, items of personal care and hygiene, and regular
showers, or to elimination of visiting, physical exercise, oral communication opportunities
with other persons, religious observance, mail, books or other reading material. A prisoner
so confined should not be subjected to conditions that cause physical or mental deterioration, including conditions of extreme isolation as described in section (d). Vulnerable prisoners housed separately for protective purposes should be treated in accordance with the
provisions of Standard 23-4.5(b).
(b) Correctional agencies should develop and deliver programs and services that can be
brought directly to prisoners who are not permitted to leave their cells. Correctional staff
should monitor and assess any health or safety concerns related to refusals to recreate by
prisoners on cell restriction or held in segregated housing. Prisoners separated from the
general population for reasons other than disciplinary purposes should be allowed as much
out-of-cell time as possible, and the amount of out-of-cell time provided should increase
the longer a prisoner is housed in this setting and the smaller the size of the cell.
(c) Cells used to house prisoners in segregated housing should provide space commensurate with the amount of time the prisoner is required to spend in the cell. Physical features
such as protrusions that facilitate suicide attempts should be eliminated. No segregation cell
should be smaller than 80 square feet, and cells should be designed to permit prisoners
assigned to them to converse with and be observed by staff. Absent an individualized determination that a particular furniture feature presents a legitimate and significant security risk,
segregation cells should be equipped in compliance with Standard 23-2.3(b).
(d) Conditions of extreme isolation should not be allowed regardless of the cause for the
prisoner’s separation from the general population. Conditions of extreme isolation generally include a combination of sensory deprivation, lack of contact with other prisoners, only
limited contact with staff, enforced idleness, minimal out-of-cell time, and lack of outdoor
recreation. To ameliorate the risk of physical and mental deterioration, all prisoners housed
in segregated housing should be provided with meaningful forms of mental, physical, and
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social stimulation. Depending upon individual assessments of risks, needs, and the reasons
for placement in the segregated setting, those forms of stimulation may include:
(i) in-cell programming;
(ii) more than one hour a day of out-of-cell time;
(iii) opportunities to exercise in the presence of other prisoners;
(iv) daily face-to-face interaction with both uniformed and civilian staff; and
(v) access to radio or television for programming or mental stimulation, as long as
these are not provided to the exclusion of human contact described in (i) to (iv).
(e) Correctional staff, including medical and mental health personnel, should conduct
regular mental health inspections of prisoners on cell restriction or housed in segregated
housing areas as set forth in Standard 23-3.3 (e) and (f).114
I would have preferred some specified durational limits, a mandate to prepare and implement a behavioral plan responsive to the unruly or dangerous inmate’s isolation precipitating behavior, and even an invitation to create human living space that insulates those
inmates from other inmates where there is a likelihood of harm.
Inmates with serious mental illness, or at risk for becoming ill, surprisingly are not
specifically excluded in this section, although Standard 23-5.13 refers to the avoidance of
housing that may exacerbate their mental illness. Juveniles also are not specifically
excluded from penal isolation. Still, for those looking for achievable reform, the Proposed
Standards certainly are a good start.
NOTES
1. Prison and jail inmates also may be placed in protective custody, often at the request of the
individual. Inmates in protective custody have the strongest case for humane and minimally
deprivational settings of the three bases just noted for inmate separation. There is, of course,
a risk factor, but the “PC” inmate is only at risk, not others, and the potential for victim status
creates the high eligibility for decent treatment.
2. In my work as court-appointed principal investigator in the class action, S.H. v. Stickrath
(2007), I have uncovered juveniles in “24/7” isolation, confined in cells more restricted than
those in use at the Ohio State Penitentiary, the State’s supermax facility.
3. Griffin v. Vaughn (1997). Use of the phrase “parameters of the sentence judicially imposed”
is a veiled way of describing an incident of incarceration as “typical.”
4. Platt, 476 F.Supp.2d at 471. The judicial concept of a desirability scale is never classified. It
tends to be a view of prison life from one who has never experienced and likely never made
even a tour of a prison. When pushed, a court might speak of uncivilized, health-threatening
conditions and a willingness to patrol the outer fringes of civilized decency.
5. Id.
6. See Shoats v. Horn (2000), upholding 8 years of administrative segregation.
7. Id.
8. Mushlin (2002, pp. 92-93) (citations omitted). See Hoptowit v. Ray (1982) (finding “[t]he
deprivation of nearly all fresh air and light, particularly when coupled with the guard’s control over the window and the electric light, creates an extreme hazard to the physical and
mental well-being of the prisoner in violation of the Eighth Amendment.”); Ruiz v. Johnson
(1999) (finding that prison officials violated the Eighth Amendment when they subjected
inmates to “extreme social isolation and reduced environmental stimulation”); Madrid v.
Gomez (1995) (finding that placement of mentally ill inmates in segregation is cruel and
unusual punishment); see also Fred Cohen (2004, pp. 17, 28, 29) (discussing Freeman v.
Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2003)).
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9. See Imprisoned Citizens Union v. Shapp (1978). In Hutto v. Finney (1978), the Supreme Court
held that the district court did not err, concluding that as a whole, conditions in isolation cells
violate cruel and unusual punishment where such conditions relate to diet, overcrowding, violence, vandalized cells, and lack of correctional professionalism.
10. See Cohen (1998, chap. 11) (discussing in detail the cases and issues related to isolation and
mentally ill inmates). In some jurisdictions, policy and procedure forbid housing inmates with
serious mental illness, or who are psychologically vulnerable, in their supermax facility. See, for
example, Ohio Bureau of Mental Health Services, Standard Operating Procedure #2 (2001):
OSP Exclusion Criteria: Inmates assessed and diagnosed with the following conditions are
excluded from transfer to OSP:
1. Serious mental illness (categorized as C-1 on the Mental Health Level of Care Determination,
DRC form 5268)
2. Mental Retardation (categorized as MR/DD on the Mental Health Level of Care Determination, DRC form 5268)
3. Mental disorder that includes:
a. Being actively suicidal
b. Severe cognitive disorder (organic mental disorder) that results in significant functional
impairment
c. Severe personality disorder that is manifested by frequent episodes of psychosis, depression or self-injurious behavior, and results in significant functional impairment
11. See Lollis v. N.Y. State Department of Social Services (S.D.N.Y. 1971) (Voiding the 2-week
confinement of a 14-year-old girl in a stripped room with no recreational outlets or reading
and also finding impermissible the use of shackles on a male juvenile in isolation for periods
ranging from 40 minutes to 2 hours.) Isolation practices in juvenile facilities regularly engender issues not encountered with adults. In addition to the belief that juveniles suffer in distinctive ways, there is the very practical problem of complying with compulsory school mandates.
The more extended a juvenile’s isolation, the more difficult it is to comply with a 6-hour
school day, for example.
12. I do understand my headline hyperbole would violate the usual confidentiality of juvenile
proceedings, but I ask your indulgence of this small dramatic breach.
13. IJA-ABA, Juvenile Justice Standards: Standards Relating to Corrections Administration, Part
VII, Sec. 7.00 (H)(1996). In Part VII, the Disciplinary System, which proposes an elaborate
procedural system where major infractions may be punished with up to 10 days room confinement; minor infractions, up to 5 days room confinement; and petty infractions with reprimand, warning, or loss of such privileges as access to movies, TV, some recreation, and the
like. The 10- and 5-day limitations were bracketed indicating some willingness to allow local
options. I served as coreporter for this volume along with Andrew Rutherford.
14. American Correctional Association Standards for Juvenile Training School, Section C (3JTS-3C-08)(3rd ed. 1991).
15. Id. (3-JTS-3C-12). I could not locate any limitation on room confinement as a disposition or
the conditions for such confinement or punishment.
16. In Cohen (1998, chap. 3), I summarized the legal identity of prisoners touching on all of the
Supreme Court’s key decisions in such areas as access to courts, tort claims, transfers, medical care, dental care, mental health care, discipline, religion, and classification.
17. Turner v. Safely (1987), at 94.
18. Id. at 89-90.
19. The exceptions allowed inmates to correspond with other inmates who are also relatives and
to correspond over legal matters. See id. at 91-93.
20. Id. at 93-94.
21. Id. at 96.
22. Justice O’Connor made it clear that an official’s claim that security interests were involved
in a marriage decision would end an inmate’s right to marriage. Although marriage surprisingly was recognized as a fundamental right of inmates, the normal incidents of marriage—
cohabitation, procreation, regular shouting matches—have not been accorded constitutional

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protections. Marriage, then, as a fundamental right retained by inmates plainly is far more
symbolic than applied. See, for example, Gerber v. Hickman (2002), finding an inmate had
no right to require the warden to accommodate the inmate’s request to provide his nonconfined wife a sperm specimen for artificial insemination. The right to marry did not include
this right, and denial also was not cruel and unusual punishment.
23. In Cohen (2003b), I discussed the Justice Thomas and Scalia view that states are free to define
and redefine punishment, including imprisonment and its incidents, subject only to the Eighth
Amendment. The constitutionality of a penal deprivation should be measured by deciding if
the state sentence included that deprivation. Inasmuch as state sentences will not expressly
deny or limit visits, the anachronistic Thomas-Scalia position is one of almost total deference
to state officials.
24. Banks v. Beard, 399 F.3d 134 (3rd Cir. 2005).
25. Beard v. Banks (2006), at 2579.
26. Id. at 2588 (dissent). Justice Stevens also noted that inasmuch as Level 2 inmates have a copy
of the prison handbook, writing paper, envelopes, religious newspapers, bibles, and the like,
it is simply fallacious to argue that what is denied represents a new threat of setting a fire or
throwing waste at officers.
27. A rather standard definition of torture is an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person, for a purpose such as obtaining
information or a confession, punishment, intimidation or coercion, or for any reason based on
discrimination of any kind (www.medterms.com). The Department of Justice (DOJ) infamously argued that torture was limited to organ failure, impairment of bodily function, or
even death. The DOJ then retreated to defining torture as mere physical suffering or lasting
mental anguish. See Smith and Eggen (2004).
28. Beard v. Banks (2006), at 2591.
29. Id.
30. See, for example, Smolla (1992), suggesting that the preferred position of freedom of speech
is buttressed by multiple rationales. Although the First Amendment is viewed as contextual
despite its (Congress shall make no law . . .) absolutism, the prison context is a rational basis
for some limitations not permitted in the outside world. The question, of course, is what limits and for what reasons. As it has developed, prison is viewed as such a dangerous place and
prisoners viewed as so dangerous that the most severe forms of censorship and denial of
access to print material are upheld.
31. McKune v. Lile (2002), at 51.
32. The underlying challenge to conditions at the Southern Ohio Correctional Facility (SOCF)
actually was the racial tension created by the racial mixing of such inmates. A bloody riot
ensued in 1993 leading to a settlement that included single bunking.
33. Rhodes v. Chapman (1981), at 347.
34. Id.
35. Id. at 375.
36. See also Bell v. Wolfish (1979), rejecting the claim of pretrial detainees to single-celling. Chief
Justice Rehnquist pithily rejected any notion of a “one man, one cell” constitutional principle.
37. See Carty v. Farrelly (1997), where four to six inmates slept in a 72-square-foot cell and suffered a variety of other debasing conditions, found to be unconstitutional. In Pugh v. Locke
(1976), aff’d, 559 F.2d 283 (5th Cir. 1977), rev’d, in part on other grounds sub nom., Alabama
v. Pugh (1978), there were mattresses in hallways and next to urinals; one toilet for over 200
men in one part of the prison; broken and unscreened windows; food infested with insects;
inmates in wheelchairs left unsupervised in areas only accessible by stairway; up to six
inmates housed in each “isolation cell” with 32 square feet of living space, no beds, no lights,
no running water, and a hole in the floor for a toilet, fed only once a day and often given no
utensils, and permitted to shower only every 11 days. Although these conditions were pronounced unconstitutional in 1976, I toured the Alabama prison system a few years ago and
found similar conditions.
38. Much of the material in this section is drawn from Cohen (2006). That article, in turn, was
developed from testimony I presented to the Commission on Safety & Abuse in Prisons
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(2005). Such material is used with the kind permission of the Editor of the Washington
University Journal of Law and Policy.
39. See, for example, Zusman (1997) (discussing the use of a common practice when dealing
with hospital settings or juveniles in custody by treating restraint and seclusion as cut from
the same cloth). Dr. Zusman does present some dubious distinctions suggesting negative
effects of seclusion may be less damaging than restraints. Id. at 37. Of course, he would not
likely have been thinking of long-term penal isolation.
40. See Coyle (2002, pp. 80-81) (describing various forms of penal isolation).
41. Gillis v. Litscher (2006), other decisions array “merely harsh” against unconstitutionally
severe.
42. The trial court granted Summary Judgment for defendants, and in reversing, the Seventh
Circuit gave Gillis the opportunity on remand to show the denial of the minimal conditions
of life’s necessities was done with disregard of a substantial risk of harm to him. Gillis alleged
a variety of psychiatric suffering as a consequence of his treatment.
43. See Christianson (1998, pp. 133-138) (describing Eastern and New York State’s Auburn
prison and their reliance on silence, separation, discipline, regimentation, and industry).
44. See Angelone (1999). As improbable as it may seem, California prisons are converting entire
yards into protective custody areas termed sensitive-needs yards (SNY). There are now some
13,000 inmates, about 9% of the total male population, renouncing gang memberships and
asking for a sensitive-needs placement. See Quinones (2005).
45. Jones v. Baker (1998) (finding that 2.5 years in such segregation during an investigation into
the inmate’s role in a prison riot did not create a protected liberty interest implicating the need
for a hearing). In Shoats v. Horn (2000), the court upheld 8 years of administrative segregation where the inmate was celled for 23 hours a day for 5 days and 24 hours for 2 days. He
eats alone, cannot participate in any programs and activities, is allowed no family visits, is
prohibited from visiting the library, has no radio or TV, and is allowed very limited property
(e.g., writing materials, legal material, and a religious book). See Cohen (2001, p. 92)
(describing the opinion as “muddled”).
46. American Correctional Association (2003, §4-4249 cmts.) (allowing administrative segregation to be for “relatively extensive periods of time”). Curiously, the standard states, “Total isolation as punishment for a rule violation is not an acceptable practice.” There is no similar
injunction against “total isolation” while in administrative segregation.
47. Telephone interview with Steve Martin, Attorney/Consultant, in Austin, Tex. (September 30,
2005).
48. Telephone interview with William C. Collins, Attorney, in Olympia, Wash. (September 30,
2005).
49. Goldman (2004). Even the amenities or privileges of disciplinary and administrative isolation
tend to be similar.
50. Jackson (2002, p. 287) (“The very term ‘administrative segregation’ provides apparently
benign semantic camouflage for the most intensive form of imprisonment.”).
51. See Christianson (1998, note 59 supra at 132-138) (brilliantly describing that era).
52. Id. at 134-135.
53. Id. at 135-137. Tocqueville and Beaumont visited Eastern in October of 1831, whereas
Dickens visited the institution in March of 1842. Id.
54. Id. at 135.
55. Id. at 138 (quoting Charles Dickens, American Notes for General Circulation, 1842, p. 148).
Dickens, not Tocqueville, got it right. See Levy (2005) (describing Tocqueville’s error of
observation concerning Eastern Penitentiary by emphasizing the power given to the guards to
see the inmates without being seen as a power that could cause inmates a deeper terror than
chains and blows).
56. Rothman (1971, 1980) demonstrates how the prevailing experts located the causes of crime,
as well as the causes of mental illness, in the community. Cause would be linked to cure
and the well-ordered and isolating prison and then the “insane asylum” was born. Rothman
details the terrible harms inflicted on prisoners and patients alike, and how isolation from the

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community contributed to inflated claims of success and ultimately a series of brutal practices
all in the name of providing care and help.
57. Id. at 33-36. The Discovery of the Asylum, Aldine Transaction-Revised Edition 2002.
58. Id. at 36. The Discovery of the Asylum, Aldine Transaction-Revised Edition 2002.
59. Riveland (1999). Thus, any charismatic wardens or theoretically inclined academic reformers
are mainly off the hook for our experiments with extended isolation.
60. Overton v. Bazzetta (2003, at 138) (quoting United States ex rel. Miller v. Twomey, 479 F.2d
701, 712 (7th Cir. 1973)). See also Provost (2002, pp. 7-10) (discussing human rights and
humanitarian law). Whether viewed as an enforceable claim or a required standard of conduct, prolonged penal isolation is an aspect of human rights.
61. See Haney (2003, pp. 124, 132). Professor Haney refers to some 46 studies supportive of his
views on harm. See also Grassian (2006, p. 325).
62. See Christianson (1998, note 59 supra at 114, 184) (the latter describing a Sing Sing inmate
going mad after being chained on a stone floor for 10 months).
63. See Ohio Bureau of Mental Health Services, Standard Operating Procedure #2 (2001) at note 15.
64. The material in this section is virtually verbatim from Cohen (2006), note 13, with permission.
65. By “previously unexplored,” I mean, to my knowledge, by other writers. Once again, I rely
very heavily on my article (see Cohen, 2006, note 14, supra) for the material dealing with
restraints.
66. Obviously, I will not suggest that the acceptable uses of mechanical restraints be expanded.
67. More particularly, the reference is to a device designed to interfere with the free movement
of one’s arms and legs or which totally immobilizes the person (for example, the four-point
restraint) and which device must be modified or discontinued by a third person. Analytically,
one may approach the use of mechanical restraints in three different circumstances: (1) pointto-point movement within a facility; (2) movement outside the perimeter of a facility, typically to another destination (hospital, court, prison, etc.); and (3) immobilization within the
facility. Various forms of mechanical restraints—cuffs and leg irons are the most common—
are used when transporting certain inmates, during visits, or when simply moving about the
facility. This type of restraint when limited to the type of specified activity just described is
not within the scope of this article. See Cameron v. Tomes (1993) (interestingly discussing the
transport issue).
68. See Am. Corr. Ass’n at 4-4190 to -91. The American Bar Association’s. Standards for prisoners does not address isolation or segregation. Currently, the ABA has convened a task force,
cochaired by Alvin J. Bronstein and Margaret C. Love, to address the legal status of prisoners and revise and expand the 20-year-old existing standards. Isolation and supermax prisons
will be dealt with. I am serving as a task force member.
69. Id.
70. Hope v. Pelzer (2002). See Cohen (2003a, chap. 11), where I describe Alabama as the worst
system for prison mental health I had ever seen. I observed, inter alia, floridly mentally ill
inmates locked in metal shipping container–like cells, with an uncovered, dangling light bulb
the only light available to the hapless inmates. This surely is the point where isolation crossed
the border into torture, at least as broadly defined.
71. Hope v. Pelzer (2002), at 734-735.
72. Id. at 743-744.
73. Id. at 738 (footnotes and citations omitted) (quoting Trop v. Dolles, 356 U.S. 86, 100 (1958)).
74. See Ferola v. Moran (1985); Stewart v. Rhodes (1986). There is no standard on point that
would permit restraints as punishment, or for the mentally ill, for “mere convenience” as well.
But see Murphy v. Walker (1995) (“Whether using bodily restraints as punishment violates the
Eighth Amendment is an open question in this circuit.”). Murphy also suggests that as to
restraints detainees have greater protection than convicts.
75. In Deck v. Missouri (2005), the Court held that the Due Process Clause prohibits the routine
use of physical restraints visible to the jury during the punishment phase of a capital case. The
majority noted that judicial hostility to shackling earlier may have turned on the suffering,
even torture, involved, but today’s concerns relate to the perception of guilt (or aggravation)
and interference with the presentation of the defense or mitigation.
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76. See Sadler v. Young (2004) (ordering a jury trial on damages where an inmate was undeservedly placed in five-point restraints for almost 2 full days), rev’d and remanded, 118 F.
App’x 762 (4th Cir. 2005). I should note that when the use of a restraint goes bad, the impact
on the restrained person is swift and more than occasionally deadly.
77. Sadler v. Young, 325 F.Supp.2d, at 690.
78. Id.
79. Id. at 704.
80. Id. at 709.
81. Id. at 692.
82. Id.
83. Id.
84. Id.
85. Id.
86. Id. at 705-707.
87. The policy required official approval of restraint beyond 48 hours, which accounts for the
47-plus hours of actual restraint. In my experience, restraints are invariably applied for the
maximum time permitted without further approval of a ranking official. Warden Young’s
response to interrogatories indicated eight incidents of restraint in a 4-month period where
inmates did not engage in dangerous behavior during restraint or the temporary release.
Verbal abuse is not cause in Virginia to initially place an inmate in restraint and should not
then be a basis for continuing. Id. at 694-695.
88. Id. at 695-698.
89. Id. at 693, 698-699.
90. Id. at 700.
91. Whitley v. Albers (1986) (involving a small-scale riot); Hudson v. McMillian (1992) (involving an individual officer punching a shackled inmate). The Supreme Court relies on Whitley
and Hudson as the leading precedents on use of force.
92. Sadler v. Young, 325 F.Supp.2d, at 702.
93. Id.
94. Id. at 704.
95. Id. at 704. The court also determined that there is a liberty interest in the avoidance of
restraint and Sadler at some point, although not necessarily at initiation, had a right to a due
process hearing presumably on rationale and need for continuity.
96. See also, Newman v. State of Alabama (1977) (rejecting an argument that deterioration of
mental health implicates Eighth Amendment concerns); Everson v. Nelson (1996), (holding
that “retrogression of human development” does not state claim under the Eighth
Amendment); see also Strassburger (2001, p. 199) (“No state or federal court has ever held
that isolation for prolonged period of time is a constitutional violation per se.”).
97. Wilkinson v. Austin, 125 S.Ct. 2384 (2005).
98. Id. at 2398. See Cohen (2005, pp. 17, 27), where I describe this due process as essentially
an internal, paper-review process. I also suggested that the Court while referring to OSP
inmates as the “worst of the worst” did not require that a supermax house only such inmates.
Indeed, I playfully suggested using supermax prisons to house the “best of the best” as a
means to protect them from the criminogenic affect of more open prisons.
99. Wilkinson v. Austin, 125 S.Ct. at 2394-95 (citations omitted).
100. Id. at 2395.
101. Id.
102. In the text, I used the term “then extant” at OSP to reflect my personal knowledge of conditions there. I have visited and inspected that facility four times, initially just before the
inmates were actually housed there and most recently in June 2005. The change in that
brief time is dramatic: There is now a level system, some inmates are out of their cells jogging on the cell block or playing handball against the walls, there is outdoor recreation, and

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there is in-cell and some congregate programming. There were about 300 inmates housed at
the Southern Ohio Correctional Facility who requested transfers from that maximum security facility to the OSP supermax. OSP currently is a supermax in name only and now houses
Ohio’s death row population who are guaranteed, inter alia, at least 35 hours a week out-ofcell time. Whether OSP ever housed the “worst of the worst” exclusively or even importantly
remains a somewhat open question. In my view, it did not and will not.
103. In re Medley, 134 U.S. 160 (1890).
104. Id. at 174.
105. Id. at 168-169. I suspect that if the Supreme Court directly faces a condition of confinement
in isolation claim, Medley will be quickly buried.
106. Hans Toch, who long has labored in this field, writes, “Disturbed-disruptive offenders frequently become more disturbed when they are dealt with as disruptive offenders, and are
liable to become more disruptive when they become more disturbed” Toch (2004, pp. 9, 11).
107. See Beven and Cohen (2005, p. 3), describing a special program at the Southern Ohio
Correctional Facility and a training session for security and mental health staff on the law
and clinical-security issues.
108. See Toch and Adams (2002), including the therapeutic community approach, pattern-thinking approach, violence prevention approach used in Canada, self-management programs,
and the like. Whatever the approach, the point is to work with the maladaptive behavior and
work to change it, not simply isolate it.
109. See Lee v. Coughlin (1998), noting that about 90% of confinement-type sentences in New
York prisons were to keep lock (one’s own cell) or “cube” (one’s own area in a dormitory
setting).
110. Does this proposal, or concession if you will, sow the seeds of its own destruction in that it
may easily grow to become like the present-day SHUs? That, of course, is possible but not
probable if there is oversight and the threat of litigation. The critical factor is to keep the
objective clear: limited use and duration, the function is one of insulation not isolation, and
the unit should have very few cells.
111. Alvin J. Bronstein, one of our most successful prison litigators and reform advocates, writes
that incarceration itself is a complete failure; that all prisons cause harm, some more than
others; and that the best prison he ever visited is in Ringe, Denmark. It is coed, all inmates
are recidivists, there are productive jobs, and staff work with inmates, not simply keeping
order. On congratulating the prison governor, he was told, “Remember, Al, all prisons damage people” (Bronstein, 2005, p. 13).
112. Standard Minimum rules for Treatment of prisoners, Rule 31.
113. Professor Mushlin refers to the National Sheriffs’ Assn, Inmates’ Legal Rights (1987, p. 47)
(noting that “the practice [of solitary confinement] is condemned by many groups with correctional interests”). See also National Advisory Comm’n on Criminal Justice Standards & Goals,
Corrections Standard 2.4 (1973) (isolation should be punishment of last resort and then should
not extend beyond 10 days); American Correctional Assn, Standards for Adult Correctional
Institutions Standard 3-4243 (1990) (outside limit should be set on duration of disciplinary
detention; 30 days sufficient for most cases; all cases in which sanction is extended over 60 days
require the provision of the same services and privileges as are available to persons in protective custody and administrative segregation); Model Sentencing and Corrections Act § 4-502
(1983) (limited confinement to solitary confinement to no more than 90 days). But see ABA,
Standards for Criminal Justice Standard 23-6.13(d) (1986) (refusing to adopt the recommendation of the drafting committee that solitary confinement be abolished but decreeing that the conditions must not deprive the inmates of “items necessary for the maintenance of psychological
and physical well-being”). Mushlin (2002, p. 92 n. 30).
114. Draft, October 2007. These standards have been endorsed only by the drafting task force, of
which I served as a member, and have yet to receive any of the multiple reviews and endorsements required for ABA Standards.

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