1

Legislative Regulation of Isolation in Prison:
2018-2021
Abstract
Legislative activity seeking to limit or abolish the use of
solitary confinement (often termed “restrictive housing”) has
increased in recent years. Efforts to “stop” solitary (nationally
and internationally) are underway through organizing, hunger
strikes, litigation, administrative reform, and media campaigns.
The goal is to end the practice of leaving people in cells for
hours, days, months, and years on end.
This paper provides an overview of recent pending and enacted
legislative proposals. From 2018 to 2021, legislation aiming to
limit or end the use of isolation in prison was introduced in more
than half of the states and in the U.S. Congress. As of the summer
of 2021, legislators had proposed statutes in 32 states and in the
U.S. Congress, and both states and the federal system have enacted
a variety of provisions.
The statutes vary in scope. Some are comprehensive and address the
treatment of all people incarcerated within a prison or jail system
and impose limits on the reasons that prison authorities can use
to put individuals into isolation, the duration of such
confinement, and/or the extent to which the conditions of isolation
can depart from those in general population. In addition, some
statutes focus on the use of solitary confinement for
subpopulations, such as pregnant or young people, or people who
have received certain medical or mental health diagnoses. Many
statutes have reporting requirements to create some measures of
transparency and data collection. A few aim to create monitoring
and oversight beyond the prison administration.
This paper hones in on examples of enactments by detailing statutes
in Colorado, Massachusetts, Minnesota, New Jersey, and New York.
This paper also provides an integrated overview of the features of
the various statutory regimes. In addition, because Pennsylvania
legislators invited members of the Liman Center to testify in
August of 2021 on a proposed bill, the paper contextualizes the
proposed Pennsylvania bill within the recent nationwide waves of

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2
legislative activity and analyzes the text of the proposed bill.
This paper also draws on other work of the Liman Center's
researchers, who are part of collaborative efforts underway since
2013 to track the rules governing solitary confinement, the numbers
of people held in prison in isolation, and the conditions of their
confinement. Time-In-Cell 2019: A Snapshot of Restrictive Housing,
published in September 2020, is the latest report documenting these
efforts. It is available at:
https://law.yale.edu/sites/default/files/area/center/liman/docum
ent/time-in-cell_2019.pdf.
This legislative analysis will, we hope, be helpful in formulating
and evaluating means to limit or end the use of isolation as a
disciplinary or “protective” measure. The Liman Center will also
provide periodic updates of legislative activity and trends.1
Judith Resnik, Arthur Liman Professor of Law, Yale Law School;
Jenny Carroll, Director, Arthur Liman Center for Public Interest
Law; Wiggins, Childs, Quinn & Pantazis Professor of Law at the
University of Alabama School of Law; Skylar Albertson, CurtisLiman Clinical Fellow, Liman Center; Sarita Benesch, Wynne
Muscatine Graham, Yale Law School Students.
***
To limit solitary confinement entails focusing on 1) the time
in and out of cell; 2) the criteria and procedures that put
individuals into restrictive housing; 3) the conditions under
which people in such settings live; and 4) the mechanisms by which
individuals leave solitary confinement. To ensure that no person
spends most waking hours in a small cell without meaningful human
contact and activities, some jurisdictions are restructuring their
systems to end solitary confinement. Several jurisdictions have or
are considering rules requiring that individuals spend between
four and twelve hours outside of cells each day. Many have
constrained the use of solitary confinement by limiting the basis
for
placement
in
restrictive
housing,
excluding
certain
subpopulations from the practice, increasing oversight of its use,
and requiring programming and opportunities for social action for
persons in restrictive housing.
Below, we outline some of what we have learned during a decade
of research on solitary confinement. We outline data on the use of
isolation nationwide and provide an overview and analyses of the

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3
dozens of legislative initiatives since 2017 on the topic. We close
with an analysis of the draft Pennsylvania statute to show the
challenges of legislative drafting and the ways to clarify how to
be effective in ending the harms of solitary confinement.
The range and spectrum of efforts underway to curb or end
solitary confinement is impressive. Our hope is that this account
of the contours of dozens of statutes enacted and pending will be
useful when provisions introduced elsewhere enable insight on the
choices to be made. The length of this overview is but one example
of the growing national consensus that isolation is a form of
punishment that ought no longer to be tolerated, just as we no
longer permit (but once did) putting incarcerated people on diets
of bread and water, whipping them, and leaving them in chains.2

I.

The Liman Center and Its Work on Solitary Confinement

During the past several years, the Liman Center has helped to
gather data to produce the only national, longitudinal database on
the numbers of people held in isolation in the United States and
the conditions in which they live. The Liman Center has done some
of this research with directors of prison systems across the
country; they are part of an organization that is now called the
Correctional Leaders Association (CLA), and that previously was
known as the Association of State Correctional Administrators
(ASCA). See Appendix A for an overview of those reports.
Together, we have drafted and sent surveys to gather data on
restrictive housing. In 2013, we provided an assessment of all the
policies governing administrative segregation.3 Since then, we have
published a series of monographs detailing the demographic
composition of the people held in restrictive housing and the
conditions under which they live.4 We have also done a study of a
small number of jurisdictions that have not used isolation for
individuals serving capital sentences.5
Below, we provide an overview of the many years of research
findings that explain why we believe that legislation has and will
make important contributions to stop isolation of individuals in
detention. Our experiences as researchers have underscored the
critical role played by benchmarks (be they from administrators of
facilities, courts, or legislators) and the centrality of
definitions, directives, and provisions for data collection,
reporting, transparency, oversight, and implementation.

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4

II. The Use of Solitary Confinement in the United States
Before turning to the harms of solitary confinement and
consideration of the many statutes addressing them, we provide an
overview of the scope and nature of the use of solitary
confinement, the policies that govern its use, and the people who
are impacted. By analyzing policies in place in 2012 and 2013, we
learned how easy it was for prison systems to decide to put people
into isolation because individuals were perceived to be “threats
to institutional security” and how little attention was then paid
to ensuring people left such isolation promptly.6
The Liman Center then turned to learn more about the numbers
of people held and the conditions of confinement in solitary
confinement. Working with correctional leaders, we surveyed state
and federal correctional departments in 2013 and 2014 to develop
a national account. We defined solitary confinement then as
“separating prisoners from the general population, typically in
cells (either alone or with cellmates), and holding them in their
cells for most of the hours of the day for thirty days or more.”7
Based on the data collected, we estimated that, in 2014, about
80,000 to 100,000 people were in solitary confinement in prison
systems across the country.8
In light of feedback from those surveyed, the definition was
modified slightly so that we asked about individuals held in a
cell for an average of at least 22 hours per day for at least 15
continuous days. Using this definition, our 2016 report identified
67,442 people in solitary in prison systems in 48 jurisdictions,9
and our 2018 report estimated that about 61,000 people were in
isolation as of the fall of 2017.10
The report published in 2020, which was drawn from data
collected in the summer of 2019 (before the COVID-19 pandemic),
estimated that 55,000 to 62,500 people were held in isolation in
prisons around the country.11 We also learned about the duration
of confinement and health status. The 33 jurisdictions that
responded to the CLA/Liman survey reported that close to 3,000
people had been kept in solitary confinement for more than three
years,12 and that more than 3,000 people in solitary confinement
had been diagnosed with a serious mental illness (SMI), defined
differently across jurisdictions.13 In some six jurisdictions, more
than 10% of the people in solitary confinement had been diagnosed
with a serious mental illness.

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5
The 2020 report also concluded that race was associated with
placement in solitary confinement. Black women were much more
likely to be placed in isolation than white women. In 2019, 22% of
the total female prison population was Black; 42% of women in
solitary confinement were Black.14 Black and Hispanic men were also
somewhat more likely to be placed in restrictive housing than white
men. In 2019, Black men made up 40% of the total custodial
population and 43% of the solitary confinement population.
Hispanic men made up 15% of the total custodial population and 17%
of the solitary confinement population.15
The chart, Comparing Restrictive Housing Numbers from 2014 to
2020,16 provides a summary of the survey data on the numbers of
people held in a cell for an average of 22 hours or more for 15
days or more;17 given that many but not all jurisdictions responded,
for some reports, we used that data to estimate national totals.
Comparing Restrictive Housing Numbers from 2014 to 2020
2014-2015
ASCA-Liman
Survey

2017-2018
ASCA-Liman
Survey

48 jurisdictions,
or 96.4% of

43 jurisdictions,
or 80.5% of

prison
population of
1.5 million
people

prison
population of
1.5 million
people

66,000+

67,442

50,422

31,542

80,000100,000

not estimated
given
substantial
reporting

61,000

55,00062,500

34
Number of
Jurisdictions
Responding

# Prisoners
Reported in
Restrictive
Housing

Estimated Total
Prisoners in
Restrictive
Housing in all U.S.
Jurisdictions

2019-2020 CLALiman Survey

2015-2016
ASCA-Liman
Survey

jurisdictions,
or 73% of
prison
population of
1.6 million
people

39 jurisdictions,
or 58% of prison
population of
1.4 million
people

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

6
Absolute numbers is one metric, and another important metric
is the percentage of people within a prison system held in
isolation. The chart below provides that information.
Restrictive Housing as Percent of Total Custodial Population
from 2015 to 2019*

2015

2017

2019

Minimum

0.5%

0.5%

0.8%

Maximum

14.5%

19.0%

9.0%

Survey-Wide Average

5.0%

4.4%

3.8%

Median

4.9%

4.0%

3.4%

* Including 33 jurisdictions reporting rest rictive housing rat es across al l t hree yea rs.

In addition to such aggregate information, the CLA/Liman
Reports also provide information jurisdiction-by-jurisdiction for
many metrics, including the percentages of prisoners in
restrictive housing across jurisdictions. We reproduce below one
of the charts from the 2020 volume; jurisdictions are arrayed from
the higher percentages to the lower percentages of people in
solitary confinement.
Percentage of Prisoners in Restrictive Housing, by Jurisdiction,
2019
c, U .0%
C:

·.;;
:,
0

;

10.0%

>

.::;

u

·.s
Vl

~

8.0%

C:

,_

Ill
(I)

C:

6.0%

0

Ill

·;:

a..

0

4.0%

(I)

Cl

~

C:

(I)

l:
(I)

2.0%

a..

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

7
The surveys addressed the length of time that people were
confined in restrictive housing. As the graph below details, in
the jurisdictions reporting information, more than 80% of
prisoners held in restrictive housing were kept there for more
than 30 days at a time.18 About 3,000 individuals spent three years
or more in such conditions.
Prisoners in Restrictive Housing by Length of Time, 2019
7,458
7,000

6,000
~
~

5,000

0

V,

a:

.._ 4,000

...0
(1J

..c

E 3.ooo
::,
z
2,000

1,000

0

15 to 30 days

31 to 90 days

91 to 180 days

181 to 365 days

1 to 3 years

3 to 6 years

6 years and over

We tracked demographic information about the people held in
restrictive housing. As noted above and in the graph on the next
page, Black and Hispanic or Latino male prisoners represented a
larger percentage of prisoners held in restrictive housing, as
compared with the total custodial population.19

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

8
Race/Ethnicity of Male Prisoners in Total Custodial Population
and in Restrictive Housing Population, 2019
50% ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -,

43.4%

-

% of Restrictive Housing Population

-

% of Tota l Custodial Population

40%

l."
<IJ

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With respect to female prisoners, Black prisoners
represented a substantially larger percentage of prisoners held
in restrictive housing, as compared with the general
population.20
Race/Ethnicity of Female Prisoners in Total Custodial Population
and in Restrictive Housing Population, 2019
70%
63.5%

-

% of Restrictive Housing Population

-

o/o of Total Custodial Population

60o/D

~ 50%

<IJ

44 .3%

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Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

0.7%

9

III. Recognition of the Harms of Solitary Confinement
When we began this work almost a decade ago, solitary
confinement was often described as a useful response to the
problems and challenges of running a prison system. In contrast,
today a consensus has emerged that solitary confinement is itself
a problem to be solved. In 2016, the American Correctional
Association (ACA) adopted new accreditation standards to regulate
the use of solitary confinement.21 ACA rejected its use for people
who were pregnant and for juveniles,22 and counseled against its
use for individuals with serious mental illness.23 Further, ACA
defined “extended restrictive housing” to be 29 days or more.24
Many correctional systems have imposed their own limits. For
example, Colorado, Delaware, North Dakota, and Vermont reported in
2019 that they no longer put people in cells for 22 hours on
average or more per day for 15 days or more.25 These executive
actions to limit the use of solitary interact with a series of
decisions by courts that have, in some instances, found the use of
solitary confinement unconstitutional.26
These efforts to end and to limit solitary confinement come
in response to an extensive literature on its harms.27 Denying
human beings sociability—interaction with other humans—undermines
their physical and mental health and can have long-lasting effects
on individuals and their families.
Evidence of human suffering comes from individuals who have
experienced isolation28 and from studies that have found a link
between prolonged isolation and a range of negative psychological
effects including anxiety, panic, cognitive dysfunction, and loss
of control.29 Isolation and the sensory deprivation it entails have
been linked to hallucinations, difficulty concentrating, and selfharm.30 For example, one study focused on New York City’s jails
between 2010 and 2013 determined that “acts of self-harm were
strongly associated with assignment of inmates to solitary
confinement. Inmates punished by solitary confinement were
approximately 6.9 times as likely to commit acts of self-harm.”31
Harmful physical changes, including increased risk of early onset
of cardiovascular disease, have also been documented.32
In 2020, health care experts concluded that, under the U.S.
Food and Drug Administration metric of “harms-to-benefits” for
medications and medical devices, solitary confinement would be
considered “inappropriate for use with humans.”33 Research has also
indicated that people subjected to solitary confinement are more
likely to die not long after release from prison.34 In addition,

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10
research has addressed the harms to correctional staff who work in
solitary confinement units; a series of negative health
consequences, both physical and psychological, have been
reported.35
The
well-being
of
staff
and
prisoners
is
interdependent, and solitary confinement taxes both sets of
individuals.

IV. The Critical Role of Legislation
An important driver of change has been the work of
legislatures which, since 2017, have become involved in regulating
the use of isolation. We have chosen to offer overviews from two
time periods, 2018-2020 and 2020-2021, so as to capture the
accelerating pace and broadening scope of activities in the state
and federal systems. For a list of legislative proposals addressing
solitary confinement during the last several months, see Appendix
B.
Legislative Efforts 2018-2020
An overview of legislative initiatives between October of
2018 and the summer of 2020 comes from the CLA/Liman Center Report,
Reforming Restrictive Housing. This focus on legislative
initiatives continued into Time-In-Cell 2019: A Snapshot of
Restrictive Housing, which was published in September of 2020.
From 2018 to 2020, legislation to limit the use of isolation in
prison was introduced in more than half the states and in the U.S.
Congress.36
Some of these proposals regulated the use of isolation for
all people in a system. Other legislation sought to curtail
restrictive housing for subpopulations including individuals who
were pregnant, below a certain age, or identified as having a
serious mental illness. (Those subpopulations are sometimes
described as “vulnerable;” yet, given the documentation of
solitary’s impact, we are all “vulnerable” to its debilitating
impacts.) In addition, many provisions called for regulation of
the duration (hours and days) of solitary confinement, access to
activities and health care, and less isolating and better
conditions in confinement. Many provisions also called for
improved oversight, expanded data collection, and increased public
reporting about restrictive housing.
Below we provide details, first by focusing on a few
jurisdictions
that
enacted
an
interrelated,
comprehensive
approach, and then, to provide an integrated cross-jurisdiction

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11
review, we organize many of
confinement that they address.

the

statutes

by

the

facets

of

States in the Forefront: Snapshots of Comprehensive Reforms
in Massachusetts, Minnesota, New Jersey, and New Mexico
Between 2018 and 2020, Massachusetts, Minnesota, New Jersey,
and New Mexico enacted comprehensive legislation on isolation in
prison. The 2018 Massachusetts statute defined restrictive housing
as “a housing placement where a prisoner is confined to a cell for
more than 22 hours per day,” and mandated that “[a] prisoner shall
not be held in restrictive housing to protect the prisoner from
harm by others for more than 72 hours,” unless specified conditions
apply.37 When such conditions apply to permit separation of a
prisoner from general population for that prisoner’s safety,
appropriate housing must afford the prisoner “approximately the
same conditions, privileges, amenities and opportunities as in
general population.”38
The statute also required a mental health screening before
any individual can be placed in restrictive housing and prohibited
placement of people with serious mental illnesses in restrictive
housing.39 The statute prohibited the placement of other categories
of people in restrictive housing, including anyone who is pregnant
or who has a permanent physical disability40 as well as youth held
in Department of Youth Services facilities.41 In addition, Regular
reviews with written reports were required for every person held
in restrictive housing.42 In addition, the statute required access
to programming for all individuals held in restrictive housing for
over 60 days.43
To assist with challenges related to the implementation of
the Massachusetts statute, the Massachusetts Department of
Correction (MADOC) engaged Falcon Correctional and Community
Services, Inc. (Falcon Group), an interdisciplinary team of
corrections
experts,
to
“validate
those
aspects
of
its
disciplinary system that were working well, and to suggest specific
evolutions in policy and practice that can bring MADOC’s use of
restrictive housing in line with best correctional and clinical
practices today and in the future.”44
That report the Falcon Group produced provides insights into
the challenges of implementation and how correctional departments
can respond. Among the Falcon Group’s conclusions were that an
exception to the statutory definition of restrictive housing that
exempts isolation ordered by a healthcare provider from otherwise
applicable limits on restrictive housing resulted in problematic

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12
risks. As the Falcon Group explained, “conditions imposed on the
order of a healthcare provider as the least restrictive means of
ensuring safety from imminent harm to self or others, while a
critical exercise in medical autonomy, do present the risk of
inappropriate use, prolonged isolation, and other conditions that—
but for the order of a healthcare provider—would be considered
Restrictive Housing.”45 The Falcon Group also observed that MADOC’s
disciplinary unit “allows for up to ten years of confinement in
conditions that would otherwise be labeled as Restrictive Housing
by most definitions.”46
The Falcon Group offered a series of recommendations
including the dissolution of Massachusetts’s disciplinary unit as
well as the elimination of “all use of Restrictive Housing as
currently defined,” so that “no housing unit operates under
conditions of confinement that require placement in a cell 22 or
more hours per day.”47 According to the Falcon Group, “[t]his model
represents the future of disciplinary and administrative
segregation and grew out of the Correctional Service Canada (CSC)
Structured Intervention Unit (SIU) model.”48 That report was issued
in March of 2021 and, in the summer of 2021, the Massachusetts
Department of Correction announced that it aims to end restrictive
housing in all of its prisons over the next three years.49
In 2019, Minnesota enacted a law focused on the conditions of
confinement, the mental health of people held in restrictive
housing, and the duration of confinement. The statute required
that living conditions in restrictive housing “are approximate to
those offenders in general population, including reduced lighting
during nighttime hours.” 50 The legislation established a daily
wellness round in the restrictive housing setting by a health
services staff member.51 The law required mental health screening
and services,52 instructed the commissioner to develop a system of
behavioral incentives,53 and prohibited the direct release of a
prisoner to the community “from a stay in restrictive housing for
60 or more days absent a compelling reason.”54 The legislation
directed the commissioner of corrections to receive reports of all
prisoners who are in restrictive housing for more than 30
consecutive days as well as reports about all those held for more
than 120 days, which must include a reason for the placement and
a “behavior management plan.”55
New Jersey also enacted legislation in 2019, effective August
1, 2020, to make comprehensive changes in the use of solitary
confinement.56 The legislation prohibited placement in isolation
for “non-disciplinary reasons” for all prisoners, unless there is
a “substantial risk of serious harm” to the prisoner or to others.57

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As the Legislative Preamble explained, isolation was not to be
used under conditions or for periods of time that “foster
psychological trauma,” psychiatric disorders, or “serious, longterm damage” to the prisoner’s brain.58 New Jersey also provided
that a prisoner could not be placed in restrictive housing for
more than 20 consecutive days or for more than 30 days in a 60day period.59
Further, New Jersey prohibited the placement of people in
“isolated confinement” if they are in “vulnerable populations”60
and defines those populations to include prisoners under age 21;
over age 65; with mental illness, developmental disabilities, or
a serious medical condition; who are pregnant or postpartum; who
have a “significant auditory or visual impairment”; or who are
“perceived to be” LGBTI.61 The legislation also required that,
except under certain enumerated circumstances, any individual
“determined to be a member of a vulnerable population shall be
immediately removed from isolated confinement and moved to an
appropriate placement.”62
Another illustration of reform comes from New Mexico, which
limited the use restrictive housing and created mechanisms for
oversight and transparency applicable to state-run and to
privately-run facilities. The New Mexico Corrections Restricted
Housing Act of 2019 defined “restricted housing” as “confinement
of an inmate locked in a cell or similar living quarters in a
correctional facility for twenty-two or more hours each day without
daily, meaningful and sustained human interaction.” 63 The law,
effective July 1, 2019, prohibited, without exception, the use of
restrictive housing for prisoners younger than 18 years of age or
prisoners who are “known to be pregnant.”64 For people who have a
“serious mental disability,” explained as any “serious mental
illness . . . [or] significant functional impairment . . . or
intellectual disability,” restricted housing was prohibited except
to prevent an imminent threat of harm, in which case placement was
capped at 48 hours.65
New Mexico required that correctional facilities produce
quarterly reports on the use of restrictive housing, which must
include the “age, gender, and ethnicity” of all prisoners placed
in restrictive housing that quarter, and post the report to its
public
website.66
The
Act
also
established
that
private
correctional facilities regularly report all monetary settlements
paid as a result of lawsuits filed by incarcerated people or their
estates against the private correctional facility or its
employees.67

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Montana’s 2019 legislation, effective January 1, 2020,
restricted the use of isolation and set minimum requirements for
the conditions in restrictive housing68. The law defined
restrictive housing as “a placement that requires an inmate to be
confined to a cell for at least 22 hours a day for the safe and
secure operation of the facility”.69 The legislation established
limiting factors that apply to all prisoners, such as a periodic
review of a prisoner’s status in protective custody70 or review of
isolation of “an adult inmate that continues beyond 30 days.”71 The
legislation also focused on subgroups and banned solitary
confinement for pregnant and postpartum prisoners (with narrow
exceptions),72 in youth facilities if a placement lasts 24 hours
or more,73 and for prisoners with a serious mental disorder if a
placement lasts for more than 14 days unless “a multidisciplinary
service team determines there is an immediate and present danger
to others or to the safety of the institution.”74 Placement in
solitary was not to exceed 22 hours a day, and facilities must
provide access to certain resources and activities, like showers,
exercise, educational programs, and commissary.75
Categories of Regulation: 2018-2020
Populations, Conditions, Duration, Reporting
As explained at the outset, after providing examples from a
few jurisdictions, we turn to specific topics that jurisdictions,
including those just discussed, have addressed. The five states we
described are part of a set of 29 jurisdictions in which bills
were introduced and part of 15 (as of the spring of 2020), in which
legislation was enacted.76 In this section, we discuss the
categories of regulations. The summary below provides a snapshot,
explained in the materials that follow.

Legislation Addressing Restrictive
Housing, 2018 to 2020
29 jurisdictions considering or enacted
legislation limiting the use of restrictive housing
15 states and the federal government enacted
provisions - some comprehensive and others
targeted to subpopulations and/or requiring
reporting
8 states and the U.S. Congress had pending bills as
of the spring of 2020

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15

Subpopulations: Sixteen jurisdictions—15 states and the
federal government77—enacted statutes that limit or prohibit the
use of restrictive housing for youth, pregnant prisoners, or those
with serious mental illness. The states are Arkansas,78 Colorado,79
Florida,80 Georgia,81 Louisiana,82 Maryland,83 Massachusetts,84
Montana,85 Nebraska,86 New Jersey,87 New Mexico,88 South Carolina,89
Texas,90 Virginia,91 and Washington.92
Of these states, eleven limited (with some variation in
language) the use of restrictive housing for prisoners who are
pregnant, and in some cases, for prisoners who are postpartum. For
example, Louisiana prohibited (with some exceptions) placement in
solitary confinement of a prisoner who “is pregnant, or is less
than eight weeks post medical release following a pregnancy, or is
caring for a child in a penal or correctional institution.”93 With
exceptions, Texas, Virginia, and South Carolina prohibited the use
of restrictive housing for pregnant prisoners or prisoners who had
given birth in the past 30 days unless there is a reasonable belief
of flight risk or that the prisoner will harm themselves, the
fetus, or another person.94 Other states that limited the use of
restrictive housing for pregnant prisoners include Georgia,95
Maryland,96 Massachusetts,97 Montana,98 New Jersey,99 and New
Mexico.100
Statutes enacted by the federal government and by six states
limited the placement of youth in restrictive housing. The federal
First Step Act of 2018 prohibited “the involuntary placement” of
a juvenile “alone in a cell, room, or area for any reason” other
than as a response to “a serious and immediate risk of physical
harm to any individual.”101 New Mexico banned, without exceptions,
restrictive housing for youth under the age of 18.102 Washington
prohibited the use of “room confinement” for youth under the age
of 18 except to prevent imminent harm, in which case confinement
must be limited at four total hours in a 24-hour period.103
Nebraska’s law prohibited the placement of youth under the age of
eighteen in “room confinement” as punishment, retaliation, or due
to staff shortage, and discouraged placement in room confinement
beyond one hour in a 24-hour period.104 Nebraska’s law also provided
for documenting and reporting the use of room confinement for youth
under the age of 18.105 New Jersey banned, with certain exceptions,
the use of “isolated confinement” for youth under the age of 22.106
Montana’s law prohibited the use of restrictive housing for
individuals in youth facilities except “when it is necessary to
protect the youth or others,” in which case restrictive housing
must be shorter than 24 consecutive hours.107 Arkansas’s enactment
ruled out isolation of individuals in a juvenile detention

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16
facility, except under certain circumstances, such as cases of
“imminent threat,” “physical or sexual assault,” or attempted
escape, and required written authorization by the director of the
facility for every 24-hour period that the juvenile remains in
isolation.108
Six statutes addressed the use of restrictive housing for
prisoners with serious mental illness, a disability, or a substance
use disorder. Massachusetts required a mental health screening
before any individual can be placed in restrictive housing and
prohibited placement of people with serious mental illnesses in
restrictive housing.109 Montana prohibited placement in restrictive
housing for “behavior that is the product of [an] inmate’s
disability or mental disorder unless the placement is after prompt
and appropriate evaluation by a qualified mental health
professional,” and restrictive housing must be “for the shortest
time possible, with the least restrictive conditions possible.”110
New Jersey banned placement of prisoners with a mental illness,
developmental disability, auditory or visual impairment, or
serious medical condition in isolated confinement unless there is
a “substantial risk of serious harm” to the prisoner or others, in
which case mental and physical evaluations are required daily.111
New Mexico’s law described that individuals with “serious mental
disability” could be placed in restrictive housing only if they
met certain criteria.112 There, restrictive housing may only be
used for those with a “serious mental disability” when it is
necessary to “prevent an imminent threat of physical harm to the
inmate or another person.” If such conditions exist, restrictive
housing is limited to 48 consecutive hours.113 Colorado Senate Bill
20-007, signed by the governor on July 13, 2020, prohibited the
use of solitary confinement for individuals receiving evaluation,
care, or treatment for substance use.114
A summary of the regulations
appears on the next page.

related

to

subpopulations

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17
Enacted Legislative Reforms: Subpopulations, 2018-2020
15 jurisdictions enacted statutes limiting or prohibiting
restrictive housing for subpopulations
Pregnancy

Youth

Prisoners with serious
mental illness, disability,
or substance use disorder

11 Jurisdictions:

7 Jurisdictions:

6 Jurisdictions:

Georgia
Lou isiana
Maryland
Massachusetts
Montana
Nebraska
New Jersey
New Mexico
South Carolina
Texas
Virginia

United States
Arkansas
Nebraska
New Mexico
New Jersey
Montana
Washington

Massachusetts
Montana
Nebraska
New Jersey
New Mexico
Colorado

Transparency, Data Collection, and Oversight: In addition to
these constraints, nine jurisdictions required data collection and
reporting on the use of restrictive housing. That group includes
the federal government,115 Maryland,116 Massachusetts,117 Michigan,118
Minnesota,119 Nebraska,120 New Mexico,121 and Virginia.122 These
reporting requirements sought to document the scope of restrictive
housing and the populations placed in restrictive housing.
Minnesota’s law, for example, requires the commissioner of
corrections to file an annual report with the legislature providing
“(1) the number of inmates in each institution placed in
segregation during the past year; (2) the ages of inmates placed
in segregation during the past year; (3) the number of inmates
transferred from segregation to the mental health treatment unit;
(4) disciplinary sanctions by infraction; (5) the lengths of terms
served in segregation, including terms served consecutively; and
(6) the number of inmates by race in restrictive housing.”123 Since
its passage, reports have been filed annually on January 15th for
2020124 and 2021.125
Innovations in 2020-2021: New York, Colorado, and Connecticut
We turn now to legislative activity during the last several
months. By way of an overview, bills have been introduced in 32
states and the federal government. Legislatures have voted to enact
provisions in seven states—Arkansas, Colorado, Connecticut,
Kentucky, Louisiana, New York, and Tennessee.

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As we outlined above for the 2018-2020 period, we focus first
on a few enactments in states before providing a catalogue of the
many regulations imposed. Here we draw on examples from New York,
Colorado, and Connecticut.
A much-discussed major enactment is New York’s Humane
Alternatives to Long-Term (HALT) Solitary Confinement Act, which
will take effect in April of 2022.126 The HALT Act defines
“segregated confinement” to mean “any form of cell confinement for
more than seventeen hours a day other than in a facility-wide
emergency or for the purpose of providing medical or mental health
treatment.”127
Key features of HALT are its requirement of seven hours out
of cell per day and the three-day limit on the use of solitary
confinement and requirements for out-of-cell time.128 The HALT Act
prohibits segregated confinement for more than three consecutive
days or more than six days in a 30-day period unless a person has
committed one of the serious violations identified by the
statute.129 HALT also prohibits placement in segregated confinement
for more than 15 consecutive days or 20 total days within a 60day period.130 In addition, HALT instructs that out-of-cell
programming be offered to people in segregated confinement at least
four hours per day, including at least one hour of recreation.131
In addition to addressing the entire population, HALT also
addresses subpopulations. HALT prohibits segregated confinement
altogether for people who are 21 years old or younger; 55 years
old or older; living with a disability; diagnosed with a serious
mental illness; or pregnant, postpartum, or caring for a child in
a correctional institution.132
For implementation, the HALT ACT instructs correctional
administrators to publish monthly reports online detailing the
demographics of the people held in segregated confinement, the
number of days spent in segregated confinement, the number of
people held by a facility, and a list of all incidents resulting
in segregated confinement by the facility.133 In addition, the HALT
Act mandates extra training for staff working on segregated
confinement units.134
Colorado’s legislation was signed into law on June 24, 2021
and goes into effect in part on January 1, 2022 and in part on
July 1, 2022.135 This statute puts a hard stop on restrictive
housing, which it defines as “the state of being involuntarily
confined in one’s cell for approximately twenty-two hours per day
or more with very limited out-of-cell time, movement, or meaningful

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19
human
interaction
whether
pursuant
to
disciplinary,
administrative, or classification action.”136 Under the statute,
individuals placed in restrictive housing in local jails may not,
without a written court order, be held for more than 15 days in a
30-day period. A court may only grant such an order if it finds by
clear and convincing evidence that “[t]he individual poses an
imminent danger to himself or herself or others;” “[n]o alternative
less-restrictive placement is available;” “[t]he jail has
exhausted all other placement alternatives;” and “[n]o other
options exist, including release from custody.” A jail may hold an
individual in restrictive housing for an additional seven days if
the jail files a motion for court order prior to the expiration of
the 15-day placement and the court’s decision remains pending.
Further, the legislation mandates that “[a] local jail shall
not involuntarily place an individual in restrictive housing,
including for disciplinary reasons,” if the individual has been
“diagnosed with a serious mental illness or is exhibiting grossly
abnormal or irrational behaviors or breaks with reality,” has
“self-reported a serious mental illness, suicidality, or is
exhibiting self-harm,” is “pregnant or in the postpartum period,”
is under 18 years old, or suffers from certain physical,
developmental, or neurological impairments.137 The only exceptions
to this rule involve enumerated circumstances relating to medical
treatment, or when “[n]o other less restrictive option is available
and the individual is not responding to ongoing de-escalation
techniques.”138
Moreover, people in restrictive housing in local jails must
be provided with “basic hygiene necessities, including shaving and
showering at least three times per week; exchanges of clothing,
bedding, and linen on the same basis as” general population;
“access to writing letters or receiving letters;” “opportunities
for visitation;” “access to legal materials;” “access to reading
materials;” “a minimum of one hour of exercise five days per week
outside of the cell;” “access to outdoor exercise at least one hour
per week, weather permitting;” “telephone privileges to access the
judicial process and to be informed of family emergencies as
determined by the local jail;” and “access to programs and
services.”139
Connecticut’s legislature enacted a statute, known as the
PROTECT Act, that had comprehensive limits on the use of solitary
confinement.140 In lieu of signing the statute, Connecticut’s
governor issued an executive order.141 That order mandates that,
“[b]y September 1, 2021, the Department of Correction shall
guarantee
that,
outside
of
extraordinary
circumstances,

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20
incarcerated persons in the general population shall be held in
isolated confinement only due to disciplinary status.”142 In
addition, the order requires that, “outside of extraordinary
circumstances,” every “incarcerated person in isolated confinement
shall have a meaningful opportunity to be out of such person’s
cell for two hours each day,” and shall not “be held in prolonged
isolated confinement due to disciplinary status.”143 The order also
directs Connecticut’s Department of Correction to “make policy
changes to limit the use of isolated confinement on members of
vulnerable populations,” which are defined as anyone who is under
18 years old or over 65 years old, pregnant, or suffering from
certain mental, medical, or physical conditions.144 Previously, in
2017, Connecticut enacted a statute that focused on the use of
solitary confinement for juveniles.145 That law provides that “no
child shall at any time be held in solitary confinement or held
for a period that exceeds six hours.”146
Categories of Regulation: 2020-2021
Populations, Conditions, Duration, Reporting
Enacted bills address restrictive housing for juveniles and
seniors, people who are pregnant or postpartum, and people
suffering from mental illness and disabilities. The bills also
confront conditions of confinement, duration of confinement,
reasons for placement in restrictive housing, monitoring and
documentation, reporting, and staff training. Below we again
provide a synthesis through a catalogue of the issues addressed
and, once again, we include the jurisdictions profiled above.
Subpopulations: Several states have enacted legislation in
2021 that places limitations or prohibitions on the use of
restrictive housing for juveniles. Arkansas prohibits people in
juvenile detention facilities from being placed in punitive
isolation147 or solitary confinement148 as a disciplinary measure
for more than 24 hours, unless the person has committed an assault
or engaged in conduct that poses an imminent threat, or has escaped
or attempted escape. Colorado also prohibits local jails from
placing people who are under 18 years old in solitary
confinement.149 In New York, people under the age of 22 may not be
placed, for any length of time, in segregated confinement.150
Tennessee prohibits juvenile “seclusion”151 for “discipline,
punishment, administrative convenience, retaliation, staffing
shortages, or any reason other than a temporary response to
behavior that threatens immediate harm to a youth or others.”152
Several states placed limitations or prohibitions on
restrictive housing for people who are pregnant or postpartum. In

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21
Arkansas, an individual may not be placed in restrictive housing153
for 30 or more days if the individual is pregnant, has delivered
a child within the previous 30 days, is breastfeeding, or is under
a physician’s care for postpartum depression or other postpartum
conditions.154 In Colorado, people detained in local jails may not
be placed in solitary confinement155 if pregnant or postpartum,
unless a series of conditions are met, including the presence of
imminent danger to others and the unavailability of less
restrictive options. Kentucky prohibits restrictive housing for
people who are pregnant or “in the immediate postpartum period.”156
New York prohibits segregated confinement157 for people who are
pregnant, in the first eight weeks of the postpartum period, or
caring for a child in a correctional institution.
As noted, Colorado and New York also limit or prohibit
restrictive
housing
for
people
with
mental
illness
and
disabilities. Colorado forbids local jails from involuntarily
placing someone in restrictive housing with a few exceptions. New
York requires mental health assessments upon placement in
segregated confinement and prohibits segregated confinement for
people diagnosed with serious mental illness or with certain
disabilities.158
Time Out-of-Cell and Conditions of Confinement: As noted,
Colorado imposes obligations on local jails to provide certain
services that would be given to people in general population and
to ensure access to exercise, visits, and legal assistance.159 Also
as noted, New York requires that people in segregated confinement
be offered out-of-cell programming at least four hours per day,
“including at least one hour for recreation.”160 New York also
prohibits changes in diet as a form of punishment.161
Colorado and New York also place limitations on the duration
of confinement. As noted, without a court order, in Colorado, a
person in jail may not be held in restrictive housing for more
than 15 days in a 30-day period.162 In New York, corrections staff
are not to put an individual in segregated confinement for more
than three consecutive days or more than six days in a 30-day
period unless, after an evidentiary hearing, the state determines
that the person engaged in certain kinds of serious conduct,
including, for example, causing “serious physical injury or death
to another,” leading or organizing a riot, or procuring deadly
weapons, among other violations.163 No one may be placed in
segregated confinement for “longer than necessary and no more than
fifteen consecutive days or twenty total days within any sixty day
period.”164

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Transparency, Data Collection, and Oversight: Colorado and
Louisiana require monitoring and documentation of restrictive
housing placements. In Colorado, when a person in a local jail is
involuntarily placed in restrictive housing, “[a]t least twice per
hour, a medical or mental health professional or local jail staff
must check [on her], face-to-face or through a window.” As noted,
local jails must also document the time each person spends out of
cell on a daily basis, including “all meaningful human contact the
individual received while out of cell” and “any mental or medical
services received.” Each individual must be provided with “a clear
explanation of the reason” for the placement, the monitoring
procedures, date and time, court dates, and the “behavioral
criteria the individual must demonstrate to be released from
restrictive housing.” A Louisiana Resolution also “urge[s] and
request[s]” that a legislative auditor conduct an audit on the
“use of all forms of solitary confinement, room confinement, or
room isolation in facilities housing juveniles arrested or
adjudicated for a delinquent or status offense in the state of
Louisiana.”165
Four states have imposed reporting obligations. Colorado
requires people who run jails to submit quarterly reports to the
Department of Public Safety on solitary confinement demographics;
reasons for and length of confinement; injuries, deaths, and crimes
committed while in confinement; and how many times the jail “sought
a written order to hold someone beyond the fifteen days in
restrictive housing and the outcome.” Kentucky requires the
submission of annual reports with information about restrictive
housing demographics, reasons for placement in restrictive
housing, and the dates of placement and release. Such reports must
be submitted to the Judiciary Committee and presented online.166
Louisiana requires that a report submitted to the state’s Juvenile
Justice Reform Act Implementation Commission include available
data on solitary confinement demographics for juveniles, the
duration of their confinement by facility, and the “top five
reasons” they were placed in isolation by facility.167 New York
requires that correctional administrators publish monthly reports
online and detail the solitary confinement demographics, duration
of confinement, and reasons for confinement.168
Pending Legislation as of the Summer of 2021
Legislatures continue to be presented with proposals for
comprehensive reform. As of the summer of 2021, more than 50
proposals in 25 jurisdictions addressed isolation in jails and
prisons.

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Federal Proposals
Among the various proposals at the federal level is a bill,
introduced to the U.S. House of Representatives, entitled
“Restricting the Use of Solitary Confinement Act.”169 That proposal
would limit the use of solitary confinement within the federal
prison system for certain populations, including pregnant or
postpartum prisoners, prisoners 65 years or older, and prisoners
with a serious medical condition by using an alternative
appropriate medical or other unit. The Act proposes limiting the
duration of solitary confinement to no more than 15 consecutive
days or no more than 20 days during a 60-day period. This proposal
would also mandate that the Bureau of Prisons prepare a report to
be submitted to the Committees on the Judiciary of the House of
Representatives and of the Senate with recommendations on how to
reduce the use of solitary confinement in federal prisons to near
zero within ten years.
Another proposal in the U.S. House of Representatives,
entitled “Kalief’s Law,” would amend the Omnibus Crime Control and
Safe Streets Act of 1968 to “provide for the humane treatment of
youths who are in police custody, and for other purposes.” The
bill’s aims include prohibiting solitary confinement for youth and
limiting the conditions and duration of temporary separation of
youth.170
Also before Congress is HR 2293, the Federal Correctional
Facilities COVID-19 Response Act. This Act would establish
“procedures related to the coronavirus disease 2019 (COVID-19) in
correctional facilities.”171 This Act aims to ensure that “medical
isolation for COVID-19 is distinct from punitive solitary
confinement;”172 the bill would authorize recreational materials
and expanded programming and communication privileges for people
in medical isolation. The bill calls for a report by the Attorney
General to Congress to explain steps taken to make medical
isolation for COVID-19 distinctive from segregation that is
imposed for discipline.
State Proposals as of the Summer of 2021
Many of the bills in state legislatures focus on limiting the
use of solitary confinement for certain populations, including
pregnant and postpartum people, juveniles, seniors, and those with
mental illness or disabilities. In addition, in about half of the
jurisdictions where legislation has been introduced,173 proposals
would establish reporting requirements to various oversight

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24
committees or commissions. Some bills also call for limits on the
duration of solitary confinement and for special training for
staff. In two states, Delaware and South Carolina, legislation was
introduced to limit courts’ authority to sentence an individual to
solitary confinement.174
In four states (Connecticut, Maine, Nebraska, and New
Hampshire), bills were introduced to establish a general
prohibition on the use of solitary confinement within the state.
Connecticut’s bill (enacted but vetoed by the Governor) was known
as the PROTECT Act and its purposes included to “prohibit the
Department of Correction from using solitary confinement in its
facilities.”175 The legislation introduced in Maine aimed to ban
solitary confinement in both jails and prisons in the state.176 The
statute proposed in Nebraska provided that “no person shall be
placed in solitary confinement.”177 The proposal in New Hampshire
would have repealed the authority of state or county correctional
facilities to
discipline an inmate by use of solitary
imprisonment.178
In a few jurisdictions that, in prior years, had enacted
solitary confinement regulations, more legislation was introduced
in the last year. For example, in Arkansas, proposed legislation
would supplement what had been put into place by establishing a
reporting system to collect data on the length of solitary
confinement.179 In Kentucky, legislation was enacted that aimed to
prohibit solitary confinement of pregnant or immediately
postpartum incarcerated individuals and to establish reporting
requirements180; proposed legislation would extend prohibitions to
subgroups such as young people.181 And in Massachusetts, proposed
legislation would address suicide prevention among those in
isolation as a result of “behavioral health needs” and to establish
response
practices
for
such
individuals.182
In
addition,
Massachusetts proposed a bill to provide criminal justice reform
protections to those in restrictive housing.183

V.

A
Case
Study:
Legislation

The

2021

Proposed

Pennsylvania

These many enactments and proposals provide the necessary
context in which to consider current and future proposals. Below
we use Pennsylvania’s 2021 draft Act, amending Title 61 of the
Pennsylvania Consolidated Statutes, as an example of the
challenges that drafters face as they work with a range of
constituencies to develop legislation.

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The 2021 proposal marks an important step toward limiting
harmful isolation practices and mitigating the impact of solitary
confinement. Below, we outline several of the salient aspects of
the bill, as we note the strides made and the questions raised. As
we discuss, clearer mandates to curb solitary confinement are
necessary to make proposed reforms effective.
The Definition of and Criteria for Placement in Solitary
Confinement
The Pennsylvania statute defines solitary confinement to be
placing a person, based on a variety of rationales, in a “cell or
similarly confined holding or living space . . . for approximately
20 hours or more per day, with severely restricted activity,
movement and social interaction.” Section 5101. This definition is
one of the strengths of the draft, which moves away from the 22hour per day in cell definition of solitary confinement and calls
for four hours out of cell per day when a person is held in
isolation. (As we discussed, the HALT Act provides another
benchmark, of seven hours per day out of cell. Others propose that
the time out of cell presumptively be most of a person’s waking
hours.184) Another strength of Pennsylvania’s proposed legislation
is the effort to limit the length of stay in solitary confinement
and to prohibit its use for designated populations.
Yet questions emerge. The proposed legislation creates
presumptive caps on the length of time in solitary confinement,
but the methods to calculate what time “counts” towards those caps
are not clear, making implementation difficult. Moreover, while
some jurisdictions have called for the end of solitary confinement,
the Pennsylvania proposal authorizes solitary confinement under
some circumstances. Indeed, the draft outlines broad bases for
such placement. These provisions, as explained below, are
problematic.
The proposed statute permits solitary confinement if a series
of conditions, detailed below, are “met”:
- when there is a “substantial risk of immediate serious harm
to [the individual] or another, as evidenced by recent
threats or conduct, and a less restrictive intervention
would be insufficient to reduce the risk.” Section 5102
(a) (1). Under this provision, the institution bears the
“burden of establishing this standard by clear and
convincing evidence” that such a risk exists and no less
restrictive alternative is available;

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26
- when an “inmate is subject to a disciplinary sanction.”
Section 5102 (a)(2).
- only after the “inmate [has] received a personal and
comprehensive physical and mental health examination” or,
if the inmate in question is in a jail, they must be
examined within “12 hours of . . . being placed in solitary
confinement.” Section 5102 (a)(3); and
- when the “decision to place an inmate in solitary
confinement is made by the chief administrator.” Section
5102 (a)(4).
Several aspects of this formulation raise concerns. First,
the standard for being placed in solitary confinement is openended rather than restricted to a few predicates, such as specified
acts of violence. Likewise, a segment of the bill devoted to
“Regulations” calls on the Secretary of Corrections to “promulgate
regulations necessary to administer the provision” and to limit
the reasons for placement in solitary to “an offense involving
violence, escapes or attempts to escape or poses a threat to
institutional safety.” Section 5113 and 5113 (5)(i).
While violence and escapes are delineated categories, “a
threat to institutional safety” is underspecified and leaves a
vast amount of discretion in the hands of a person deciding another
person is a “threat.” Indeed, as discussed in the Liman Center’s
2013 report on the policies governing isolation, that phrase was
present in regulations around the country, and it provided no
guidance, created few constraints, and landed tens of thousands of
people in solitary confinement.185 In short, such broad provisions
leave undue discretion with institutional actors and such
licensure could well produce results contrary to the aims of this
legislation.
The Process for Deciding Placement
The statute provides that a person is to be held for no more
than 72 hours in solitary confinement before being provided with
a hearing that offers “timely, fair and meaningful opportunities
. . . to contest the confinement.” Section 5102(b). The statute
further provides that the person subject to such confinement “shall
be represented by legal counsel” and shall “be permitted to appear”
at this hearing. Section 5102(b)(2) and (3).

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27
Provisions such as these are critical to offering meaningful
opportunities to evaluate the merits of allegations that a person
needs to be placed in solitary confinement. But the statute as
drafted needs clarification.
One set of questions surround the laudable proposal to provide
a lawyer. How this provision is to work in practice within the 72hour time frame is unclear and, of course, one would not want to
have the potential for a lawyer to extend the time in isolation.
What is the timing for finding counsel or will facilities have
made arrangements to have counsel on stand-by? What information
would the lawyer have access to and when? Will the lawyer be given
access to all materials relevant to the isolation decision? How
would the lawyer meet with the individual represented, under what
circumstances, and with what efforts to preserve confidentiality?
If the attorney believed that there was insufficient time to
prepare for the hearing, are there provisions for continuances so
that a person does not remain in isolation?
The provision for the right to be present at the hearing
raises another set of concerns. In the U.S. legal system, a person
whose conduct is at issue in a hearing generally has a right to be
present. Yet the phrasing in the statute creates ambiguity around
this right. The statute provides “in the absence of exceptional
circumstances, unavoidable delays or reasonable postponements,” a
person can appear. Section 5102(b)(2). No guidance is given as to
what “exceptional circumstances” means or why that exception
should exist. Phrases such as “unavoidable delays” and “reasonable
postponements” are also vague and, moreover, seem to permit an
extension of the 72-hour requirement for a hearing. The result
could be that a person is held without a hearing for much longer,
as no other cap is given on postponements.
In addition, Section 5106 authorizes “use of solitary
confinement pending investigation.” Like Section 5102(b)(2), no
time frame is specified. Furthermore, the statute does not explain
(as it should) that time spent in solitary during the pending
investigation counts toward the 15- and 20-day caps provided in
other parts of the statute. In short, to make these caps on the
time in isolation apply in practice, revisions of the text are
needed.
The burden of proof attached to the hearing is also unclear.
Under the proposed language, the institution has the “burden” of
establishing risk and the lack of suitable alternatives to mitigate
that risk. Section 5102 (a) (1). The statute does not, however,
explain how that burden could be met or rebutted. For example, if

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28
a staff member asserts a risk, a threat, or a lack of less
restrictive alternatives, does that assertion suffice? Or, is
additional evidence required to support a claim and, if so, what
kind of evidence satisfies the standard specified of “clear and
convincing burden”?
This ambiguity surrounding what happens before and during the
hearing and the kind and nature of proof sufficient to meet the
state’s burden interacts with the statute’s broad criteria for
placement in solitary confinement to create other kinds of risks—
that many people could be sent to isolation, spend a good deal of
time there beyond 15 or 20 days, and that decision-making around
who is in isolation will not be consistent.
The statute’s discussion of the hearing officer and decisions
rendered also require revisiting. The statute requires the hearing
to be “conducted by an independent hearing officer” but does not
define the criteria to determine independence. Section 5102(b)(4).
For example, could a hearing officer be a staff member who works
on the unit in which an incident occurred? Further, the statute
does not clarify what level of authority the independent hearing
officer would have. For example, such a person could come from
senior administration or the central office, or be at the facility
level.
What the statute does call for—laudably—is that the
incarcerated person is, at the hearing, to receive “a written
statement of the reasons for the decision to place the inmate in
solitary confinement.” Section 5102(b)(5). It is unclear from the
wording whether this written statement is meant to be the findings
from the hearing or the allegations that were the original basis
for placement in solitary. Both are important to a transparent and
fair process and, assuming the provision in Section 5102(b)(5) is
meant to describe a written decision based on the hearing officer’s
findings, the statute does not build in mechanisms for another
level of review such as an appeal of that ruling to others.
Creating that form of review of each decision could enhance
conformity with the statutory requirements and consistency in
decision making.
The Duration of Solitary Confinement and Return from Solitary
Confinement
The statute addresses the duration of confinement by
providing that a person shall not be “placed or retained in
solitary confinement” if “the chief administrator” determines that
the person “no longer meets the standards for solitary

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29
confinement.” The provision appears to cap the time in solitary
confinement as “no more than 15 consecutive days,” or “no more
than 20 days in a 60-day period.” Section 5102(c)(1-3). Further,
the statute limits institutional lockdowns by not permitting
solitary confinement beyond the same time limits—no more than 15
consecutive days or 20 during a 60-day interval. Section 5102(f).
Yet Section 5109 provides for people in solitary to be
“gradually acclimated to the general population” and does not
clarify how that process comports with the time limitations of
Section 5102(c)(1-3). And, as noted above, no information is
provided about how the time during the investigation phase is to
be calculated, if at all, toward the 15 to 20 days. Moreover, the
statute authorizes solitary confinement during “lockdowns” and
leaves it to the “chief administrator” to decide if such
confinement is required for the “safety of the inmates.” Section
5105. The statute does not explain how these periods are to be
calculated for the caps or what restrictions, if any, exist around
the chief administrator’s decision-making power in this instance.
Some decisions may need to be made quickly but also need to be
governed by meaningful standards.
Guidance benefits
both
administrators and individuals subject to their decisions.
We note that the statute does mention that the Secretary is
to review this decision and requires that the reasons for lockdown
be published and provided, if requested, to the General Assembly.
Section (5105)(1). Public accountability is helpful, but one would
presume that the reasons would be concern for safety. More is
likely meant to be required and needs to be specified.
Another area of ambiguity comes from the discussion on release
to the community. The statute provides that no person shall be
released from solitary “directly . . . to the public during the
last 180 days of an inmate’s term . . . unless it is necessary for
the safety of the inmate, staff, other inmates or the public.”
5102(g)(5). That provision does not specify who makes that judgment
and the basis for doing so. “Safety” is a broad term that can be
used to justify a good many decisions.
Many of the concerns raised above could be addressed if the
statute stated, for example, that any time spent in solitary—for
evaluation, for investigation, or otherwise—counts toward the cap.
Further, provisions could state that the availability of lawyers
and of efforts to acclimate to general population ought to begin
within 12 to 24 hours of a placement in solitary confinement and
not delay release.

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30
The Role of Health Care Clinicians
Once a person is in solitary confinement, the statute calls
for a daily evaluation by a clinician to assess if the person is
“a member of a vulnerable population.” Section 5102(d). The statute
defines such people to include people “21 years of age or younger,”
“55 years of age or older,” prisoners who are “pregnant or in the
postpartum period,” or have “suffered a miscarriage or terminated
a pregnancy” or are “perceived to be lesbian, gay, bisexual,
transgender, or intersex,” persons with the “mental health
classification of C Code or D Code,” or persons with “intellectual
or developmental disabilities.” Section 5101. Upon identifying
such people, they shall be “immediately removed from solitary
confinement and moved to an appropriate placement.” Section
5102(d).
Efforts to limit the use of solitary are beneficial. Yet the
statute provides no ex ante prohibitions but rather directs removal
after the fact. Further, the statute does not address the time
spent in cell in the context of medical isolation. Section 5105(2)
permits individuals to be put into “medical isolation” for no more
than 24 hours under “emergency confinement” and then put into a
“mental health unit” following a medical evaluation. Section
5105(2)(iv). This section does not specify any limitation on the
time spent inside the cell for individuals subject to medical
isolation. (It is possible that the requisite medical examination
could take place outside of a cell; if it does, that time could be
the only occasion a person would be outside a cell in the 24-hour
period.) For the vulnerable individuals this section of the statute
addresses, this length of time in isolation could be devastating.
Moreover, given that, as drafted, hearings could be postponed
and, in county jails, evaluations can be no less than “every seven
days” under Section 5102(d), a person falling within those
subcategories could spend additional days in solitary confinement
that may or may not count against the 15- or 20-day cap. No
provision is made to screen out such people before they are placed
in solitary confinement. A revision could call for screening so
that people within these subcategories are not sent to isolation.
Some jurisdictions, as discussed above, put in time frames capping
isolation (under medical supervision) to four to six hours for
evaluations.
Furthermore, that statute provides that individuals can be
placed in “protective custody” solitary confinement with consent
or involuntarily. Section 5105(3). The statute provides no
information as to whether this period of confinement is limited in

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31
duration in any way or is subject to periodic review to access its
continued necessity.
Once a placement called “protective custody” occurs, it is
unclear how the placement is terminated, what procedural
protections the individual has, or how administrators ought to
conduct themselves, other than that a person may contest a
placement (Section 5105(3)(iv)) or opt out if voluntarily placed
(Section 5105(3)(v)). The statute does provide that a person in
such
protective
custody
is
to
be
provided
“comparable
opportunities for activities, movement and social interaction” but
no information is provided as to how that is to occur and with
whom social interaction will take place. Section 5105 (c)(iii).
(Section 5105(4) also states that a person who is “vulnerable”
cannot be put with “one or more inmates” without “informed,
voluntary, written consent.”)
Conditions within Solitary Confinement and Time Out-of-Cell
The statute calls for cells to have proper ventilation and
light. Section 5102 (g)(1). The statute also instructs that
lighting be “on the same schedule” as in “other housing units” and
not be on “for 24 hours a day,” absent a “physician or
psychiatrist” providing a written opinion that leaving the light
on is “necessary to prevent suicide or self-harm.” Section
5102(g)(7). Medical oversight is one way to mitigate the potential
harms; a more effective means is to prevent people from being in
isolation for more than a very few hours and require that they be
under medical care when in such settings for any amount of time.
Also provided for is “access to food, water or any other basic
necessity.” Section 5102(g)(3). Not addressed is whether the food
has to be the same in quantity and quality as that provided to
people not in solitary confinement.
In another section of the bill, the Secretary is called upon
to make regulations to reduce the isolation of solitary confinement
by “easing restrictions” on a variety of activities. Section 5113
(4). Again, the intent is laudable, however the specifications and
directions lacking. Not specified is what constitutes “easing,”
how to implement those changes, and the time frame to make such
alterations.
Additional Efforts to Limit the Use of Solitary Confinement
The proposed statute charges the Secretary with creating
procedures and policies, as well as a process to review solitary

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32
confinement decisions. Section 5107. These provisions call for the
Secretary to develop step-down or transitional programs. Section
5107(3). The statute also states more generally that the system
ought to use other forms of sanctions in lieu of solitary
confinement. Section 5108. These goals are again laudable, yet a
lack of specificity and of time frames undercuts these goals.
Oversight and Reporting
The statute proposes the creation of an “independent
investigator to monitor correction institutions” to ensure
compliance, to interview individuals in solitary confinement, and
to review relevant documents. Not specified are the numbers of
people to hold that role, their resources and support, whether
they have a “golden key” giving them full access to all facets of
a facility at any time unannounced, or to whom the reports shall
be made of the investigations. Section 5110.
Another provision creates a mechanism for discipline of
“misconduct” by staff. Section 5111. Such mechanisms of
accountability are important not only for those in custody, but
also for staff themselves. What remains ambiguous in the statute,
however, is the trigger for these hearings and what constitutes
misconduct. The statute does make clear that a central remedy is
release of an individual, as well as the remedies to seek redress
in courts, including “actual damages” and injunctive relief.
Section 5112. Moreover, while addressing staff misconduct, the
statute does not yet address how to support staff in the
transformation in a prison system that no longer uses solitary
confinement.
A step toward transparency is the requirement of quarterly
reports on publicly accessible websites. The reports should
require information on the demographics of people in solitary, the
duration of time each person has spent, and the basis for their
confinement. See Section 5114. Databasing the written reasons for
placement, the activities while in placement, the methods of
stepping down, and the health care provided would be helpful as
well.
The Proposal as a Whole
We have detailed many other jurisdictions’ approaches, and as
can be seen, several provide models of mandates that are clearer
than the current Pennsylvania draft, and many impose specific curbs
on solitary confinement to limit rather than authorize its use.
Pennsylvania’s legislation is one example of a commitment to

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33
limiting solitary confinement that leaves a great deal of
administrative discretion to decision-making by staff and the
Secretary. To succeed in making change, much more clarity in
direction and more boundaries would be needed.

VI. Moving Forward
The 2021 proposal in Pennsylvania is one of dozens pending
that mark the national effort to put a stop to the harms of solitary
confinement. As the range of statutes throughout the country makes
plain, several jurisdictions have articulated clear goals, caps,
and mechanisms to end or limit isolation. Legislators need to set
the parameters as they create methods to support the people who
live in prison, those who work there, and their communities to
improve the safety and well-being of us all.

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34
Appendix A: CLA (ASCA)-Liman Research Projects

2012
2013
2014

2016

2018

Prison Visitation Policies: A Fifty-State Survey

Administrative Segregation, Degrees of Isolation, and Incarceration:
A National Overview of State and Federal Correctional Policies
Time-In-Cell: The ASCA-Limarn 2014 National Survey of

Administrative Segregatio n in Prison
Aiming to Reduce Time-in-Cell: Reports from Correctional Systems on the

Numbers of Prisoners in Restricted Housing and on the Potential of
Policy Changes to Bring about Reforms
Rethinking "Death Row": Variations in the Housing of Individ uals
Sentenced to Death
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide

Survey of Time-in-Cell
Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to

Make Changes

2020

Time-In-Cell: A 2019 Snapshot of Restrictive Housing based on

Nationwide Surveys of U.S. Correctional Facilities

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35
Appendix B:

Recent Legislative Efforts Addressing
Solitary Confinement
Jurisdiction
Federal
Federal
Federal
Alabama
Alabama
Arizona
Arkansas
California
Connecticut
Delaware
Georgia
Georgia
Illinois
Illinois
Kentucky
Louisiana
Maine
Maryland
Maryland
Maryland
Massachusetts
Massachusetts
Massachusetts
Missouri
Nebraska
Nebraska
New Hampshire
New York
New York
New York
New York
New York
New York
Pennsylvania
Pennsylvania
Pennsylvania
Rhode Island
Rhode Island

Bill
Number
HR176
HR131
HR2293
HB36
HB253
HB2167
HB1887
AB1225
SB1059
SB98
HB377
HB58
HB3738
HB3564
HB86
HB68
LD696
HB851
HB917
HB131
HB1851
HB209, SB
1567
HB2504,
SB1578
SB471
LB620
LB471
HB557
SB1623
SB2177
SB4984
SB2105
AB2518
SB8570
HB1004
HB1037
SB138
HB5740
SB8395

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36
South Carolina
South Carolina
South Carolina
Tennessee
Tennessee
Tennessee
Tennessee
Tennessee
Tennessee
Tennessee
Tennessee
Washington
Washington
Washington
West Virginia

HB3212
SB51
SB53
HB0223
SB1418
HB0031
SB0827
HB0916
HB0222
SB1412
HB1579
SB5413
SB5248
HB1312
HB3189

This overview builds on testimony submitted on August 6, 2021, for a hearing
related to An Act Amending Title 61 (Prisons and Parole) of the Pennsylvania
Consolidated Statutes, providing for solitary confinement; that hearing, held
on August 10, 2021, was convened by the Senate’s Democratic Policy Committee of
the Commonwealth of Pennsylvania. Those proceedings can be found at
https://www.senatormuth.com/policy/.
1

One account of the history of punishment practices comes from Judith Resnik,
Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta,
Madeline Silva, Tor Tarantola, and Meredith Wheeler, Punishment in Prison:
Constitution the “Normal” and the “Atypical” in Solitary and Other Forms of
Confinement, 115 NORTHWESTERN LAW REVIEW 45 (2020). That article appears in a volume
devoted to the issue of solitary confinement; a large literature, much of it
cited in the ASCA/Liman and CLA/Liman Reports, addresses isolation in prison.
2

See Administrative Segregation, Degrees of Isolation, and Incarceration: A
National Overview of State and Federal Correctional Policies, YALE LAW SCHOOL,
ARTHUR LIMAN PUBLIC INTEREST PROGRAM (June 2013).
3

Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative
Segregation in Prison, YALE LAW SCHOOL ARTHUR LIMAN PUBLIC INTEREST PROGRAM (Aug. 2015),
at
https://law.yale.edu/sites/default/files/area/center/liman/document/timein-cell_combined_-web_august_2015.pdf
(hereinafter
2014
“Time-in-Cell”);
Aiming to Reduce Time-in_Cell: Reports from Correctional Systems on the Numbers
of Prisoners in Restricted Housing and on the Potential of Policy Changes to
Bring About Reforms, YALE LAW SCHOOL ARTHUR LIMAN PUBLIC INTEREST PROGRAM (November
2016),
at
https://law.yale.edu/sites/default/files/area/center/liman/document/aimingtor
educetic.pdf (hereinafter 2016 “Aiming to Reduce Time-in-Cell”); Working to
Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, Yale
Law School, Arthur Liman Center for Public Interest Law (October 2018), at
https://law.yale.edu/sites/default/files/area/center/liman/document/asca_lima
4

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37

n_2018_restrictive_housing_efforts_in_four_jurisdictions_to_make_changes.pdf;
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Timein-Cell, Yale Law School Arthur Liman Public Interest Program (October 2018)
(hereinafter 2018 “Reforming Restrictive Housing”); Time-In-Cell 2019: A
Snapshot of Restrictive Housing, Yale Law School Arthur Liman Center for Public
Interest
Law
(September
2020),
at
https://law.yale.edu/sites/default/files/area/center/liman/document/asca_lima
n_2018_restrictive_housing_released_oct_2018.pdf
(hereinafter
“Time-in-Cell
2019”).
Rethinking "Death Row": Variations in the Housing of Individuals Sentenced to
Death, Yale Law School, Arthur Liman Public Interest Program (July 2016).
5

Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Judith Resnik, Julia
Spiegel, Haran Tae, Alyssa Work, & Brian Holbrook, Administrative Segregation,
Degrees of Isolation, and Incarceration: A National Overview of State and
Federal Correctional Policies (June 2013), available at
https://law.yale.edu/sites/default/files/area/center/liman/document/Liman_ove
rview_segregation_June_25_2013_TO_POST_FINAL(1).pdf
[hereinafter
ASCA-LIMAN
ADMINISTRATIVE SEGREGATION NATIONAL OVERVIEW 2013].
6

7

See 2014 “Time-in-Cell” at 11.

8

2014 “Time-in-Cell” at 2.

9

“Aiming to Reduce Time-in-Cell” at 1.

10

2018 “Reforming Restrictive Housing” at 4.

11

“Time-In-Cell 2019” at 5.

12

“Time-in-Cell 2019” at 11-13.

13
14

“Time-in-Cell 2019” at 48-50.
Id. at 25, fig. 10.

15

Id. at 24, fig. 9.

16

Id. at 101, tbl. 28.

17

Definitions varied slightly among jurisdictions.

18

Id. at 12, fig. 3.

19

Id. at 24, fig. 9.

20

Id. at 25, fig. 10.

American Correctional Association, Restrictive Housing Performance Based
Standards (2016), at 39, ACA Standard 4-RH-0034 [hereinafter ACA 2016
Restrictive Housing Standards].
21

22

Id. at 38-39.

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

38

23

Id. at 17.

24

Id.

25

“Time-in-Cell 2019” at 6 & n.35.

See, e.g., Reynolds v. Quiros, 990 F.3d 286 (2d Cir. 2021); Porter v. Clarke,
923 F.3d 348 (4th Cir. 2019).
26

A fuller discussion of the lines of research discussed in this paragraph is
available in Judith Resnik et al., Punishment in Prison: Constituting the
“Normal” and the “Atypical” in Solitary and Other Forms of Confinement, 115 NW.
U. L. REV. 45, 89 (2020).
27

See Albert Woodfox, See Albert Woodfox, Solitary (2019); see also Collection
of Reactions to Time-In-Cell, Yale Law Journal Forum, Vol. 125 (Jan. 15, 2016),
Reginald Dwayne Betts, Only Once I Thought About Suicide,
http://www.yalelawjournal.org/forum/only-once-i-thought-about-suicide.
28

Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological
Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE
477, 530 (1997); Craig Haney, The Science of Solitary: Expanding the Harmfulness
Narrative, 115 NW. U. L. REV. 211 (2020).
29

Craig Haney, Restricting the Use of Solitary Confinement, 1 ANN. REV. CRIMINOLOGY
285, 294 (2018); see also Reassessing Solitary Confinement: The Human Rights,
Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on the
Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary,
112th Cong. 75 (2012) (statement of Dr. Craig Haney); Craig Haney, The
Psychological Effects of Solitary Confinement: A Systematic Critique, 47 CRIME
& JUST. 365, 371–75 (2018); Stuart Grassian, Psychiatric Effects of Solitary
Confinement, 22 WASH. U. J.L. & POL’Y 325, 347–54 (2006).
30

Fatos Kaba, Andrea Lewis, Sarah Glowa-Kollisch, James Hadler, David Lee,
Howard Alper, Daniel Selling, Ross MacDonald, Angela Solimo, Amanda Parsons &
Homer Venters, Solitary Confinement and Risk of Self-Harm Among Jail Inmates,
104 AM. J. PUB. HEALTH 442, 445 (2014).
31

Louise Hawkley, Social Isolation, Loneliness, and Health, in SOLITARY
CONFINEMENT: EFFECTS, PRACTICES, AND PATHWAYS TOWARD REFORM 1, 1–2 (Jules Lobel & Peter
Scharff Smith eds., 2020), at 191, 196.
32

Brie Williams & Cyrus Ahalt, First Do No Harm: Applying the Harms-to-Benefits
Patient Safety Framework to Solitary Confinement, in SOLITARY CONFINEMENT: EFFECTS,
PRACTICES, AND PATHWAYS TOWARD REFORM, at 159, 163.
33

Lauren Brinkley-Rubinstein, Josie Sivaraman, David L. Rosen, David H. Cloud,
Gary Junker, Scott Proescholdbell, Meghan E. Shanahan & Shabbar I. Ranapurwala,
Association of Restrictive Housing During Incarceration with Mortality After
Release, JAMA NETWORK OPEN, Oct. 2019, at 1.
34

See generally Cyrus Ahalt, Colette S. Peters, Heidi Steward & Brie A.
Williams, Transforming Prison Culture to Improve Correctional Staff Wellness
and Outcomes for Adults in Custody “The Oregon Way”: A Partnership Between the
35

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

39

Oregon Department of Corrections and the University of California’s Correctional
Culture Change Program, 8 ADVANCING CORRECTIONS J. 130 (2019).
Information about pending and enacted legislation was drawn from our own
research and other sources, including the ACLU Stop Solitary Campaign and the
Vera Institute of Justice. Detailed information regarding legislation enacted
or pending as of July 2019 can be found on the Liman Center website at
www.law.yale.edu/liman.
36

The states in which legislation has been introduced were Alabama, Arizona,
Arkansas, California, Colorado, Florida, Georgia, Hawaii, Illinois, Kentucky,
Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska,
New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, South Carolina,
Tennessee, Texas, Virginia, Washington, and Wisconsin. Specific pending and
enacted laws are cited, infra notes 13 and 14. Bills regarding restrictive
housing proposed between October 2018 and June 2020 that failed include: Alabama
House Resolution 90, House Joint Resolution 93, and House Joint Resolution 92,
Alabama Legislature, 2020 Session (to recognize the injustice suffered by
Anthony Ray Hinton); Florida House Bill 165, Senate Bill 228, and House Bill
347, 2020 Florida Legislature (to prohibit solitary confinement for youth under
the age of 18); Florida Senate Bill 762, 2020 Florida Legislature (to prohibit
solitary confinement and limit restrictive housing of those with serious medical
needs); Illinois House Bill 4898, One Hundred and First Illinois General
Assembly, 2020 (to prohibit solitary confinement of youth under the age of 21);
Illinois House Bill 0892, One Hundred and First Illinois General Assembly, 2020
(to limit solitary confinement to maximum 10 consecutive days for all state
inmates); Kentucky House Bill 147, 2020 Kentucky Legislature (to prohibit
solitary confinement of youth, except to prevent imminent and significant harm);
Maryland House Bill 0742, Maryland General Assembly, 2020 Session (to limit the
use of solitary confinement for people with mental illnesses); Mississippi
Senate Bill 2743, Mississippi Legislature, 2020 Session (to establish an
ombudsman for the Department of Corrections); Oregon House Bill 3186, Seventy
Ninth Oregon Legislature, 2019 (to prohibit solitary confinement beyond 15
consecutive days); South Carolina Senate Bill 1018, One Hundred and Twenty Third
South Carolina General Assembly, Second Session (to end solitary confinement of
children under the age of 18); Tennessee House Bill 1240, One Hundred and
Eleventh Tennessee General Assembly, 2020 (to prohibit solitary confinement of
pregnant people and for 8 weeks postpartum); Wisconsin Assembly Bill 398,
Wisconsin Legislature, 2019-2020 Session (to end solitary confinement for
pregnant prisoners); Wisconsin Assembly Bill 825, Wisconsin Legislature, 20192020 Session (to require mental health evaluation for all prisoners prior to
placement in solitary confinement, and to limit solitary confinement of those
with serious mental illness to maximum 10 consecutive days).
37

2018 Mass. Legis. Serv. Ch. 69, §§ 39A(b), 87.

38

Id. § 39A(b).

39

Id. §§ 39, 87.

40

Id. § 39A(d)-(e).

41

Id. § 10B.

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

40

42

Id. § 39B.

43

Id. § 39E.

Elevating the System: Exploring Alternatives to Restrictive Housing (Falcon,
Inc. (Mar. 2021) at 4, available at https://www.mass.gov/doc/falconreport/download. The Falcon Report credited the Massachusetts Department of
Corrections for commissioning their report. Id. At 1.
44

45

Id. at 9.

46

Id.

47

Id. at 32-34.

48

Id. at 34.

Deborah Becker, Mass DOC Moves to End Solitary Confinement (June 30, 2021),
https://www.wbur.org/news/2021/06/30/massachusetts-department-of-correctionsolitary-confinement-falcon-report.
49

50

SF 8, 2019 Leg., 1st Special Sess. Section 10(2) (Minn. 2019).

51

Id. § 10(6).

52

Id. §§ 10(5-6).

53

Id. § 10(7).

54

Id. § 10(8).

55

Id. § 10(3).

56

A 314, S 3261, 2018-2019 Leg., Reg. Sess. (N.J. 2019).

57

Id. § 4.

59

Id. § 4(a)(9).

60

Id. § 2(b).

61

Id. § 3.

Id. § 4(a)(7). Circumstances include a temporary, facility-wide, emergency
lockdown, a mental health emergency requiring “medical isolation,” and a request
by the individual for protective custody. Id. § 4(d).
62

See New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019).
63

64

See id. § 3(A)-(B).

65

See id. § 4.

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

41

66

See id. § 5.

67

See id. § 6.

68

HB 763, 2019 Leg., Reg. Sess. Section 1 (Mont. 2019).

69

Id. § 2(12).

70

Id. § 3(3).

71

Id. § 3(10).

72

Id. § 3(6).

73

Id. § 12.

74

Id. § 5(4).

75

Id. § 8-10.

The enacted bills include U.S. Senate Bill 756, One Hundred and Fifteenth
U.S. Congress, Second Session (enacted December 2018)); Arkansas House Bill
1755, Ninety Second Arkansas General Assembly, 2019 Session (enacted April
2019); Colorado Senate Bill 20-007, Seventy Second Assembly, 2020 Session
(awaiting Governor’s signature); Florida House Bill 1259, 2020 Legislative
Session (enacted June 2020); Georgia House Bill 345, 2019-2020 Georgia General
Assembly, Regular Session (enacted May 2019); Louisiana House Bill 344,
Louisiana State Legislature, 2020 Session (enacted June 2020); Maryland Senate
Bill 809, Maryland General Assembly, 2019 Session (enacted April 2019); Maryland
House Bill 1001, Maryland General Assembly, 2019 Session (enacted May 2019);
Massachusetts House Bill 1851 (enacted April, 2018); Minnesota Senate File 8,
Ninety First Minnesota Legislature, 1st Special Session 2019-2020 (enacted May
2019); Montana House Bill 763, Sixty Sixth Montana Legislature, 2019 Regular
Session (enacted May 2019); Nebraska Legislative Bill 230, 2019-2020 Nebraska
Unicameral Legislature (enacted February 2020); New Jersey Assembly Bill 3979,
New Jersey Legislature 2018-2019 Session, Second Session (enacted January 2020);
New Jersey Assembly Bill 314, New Jersey Legislature 2018-2019 Session, Second
Session (enacted July 2019); New Jersey Assembly Bill 3979, Two Hundred and
Eighteenth New Jersey Legislature, 2018-2019 Session (enacted January 2020);
New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session (enacted
April 2019); South Carolina House Bill 3967, One Hundred and Twenty Third
Legislative Session (enacted May 2020); Texas House Bill 650, Eighty Sixth Texas
Legislature, 2019-2020 (enacted May 2019); Virginia House Bill 1648, 2020
Virginia Legislative Session (enacted March 2020); Virginia Senate Bill 1777,
House Bill 1642, 2020 Virginia Legislative Session (enacted March 2019);
Washington Senate Bill 6112, House Bill 2277, 2019-2020 Washington State
Legislature (enacted April 2020).
76

See U.S. Senate Bill 756, One Hundred and Fifteenth U.S. Congress, Second
Session (enacted December 2018).
77

See Arkansas House Bill 1755, Ninety Second Arkansas General Assembly, 2019
(enacted April 2019).
78

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42

See Colorado Senate Bill 20-007, Seventy Second Assembly, 2020 Session
(awaiting signature).
79

80

See Florida House Bill 1259, 2020 Legislative Session (enacted June 2020).

See Georgia House Bill 345, 2019-2020 Georgia General Assembly, Regular
Session (enacted May 2019).
81

See Louisiana House Bill 344, Louisiana State Legislature, 2020 Session
(enacted June 2020).
82

See Maryland Senate Bill 809, Maryland General Assembly, 2019 Session (enacted
April 2019).
83

84

2018 Mass. Legis. Serv. Ch. 69, §§ 39A(b), 87.

See Montana House Bill 763, Sixty Sixth Regular Session of the Montana
Legislature, 2019 (enacted May 2019).
85

See Nebraska Legislative Bill 230, 2019-2020 Nebraska Unicameral Legislature
(enacted February 2020).
86

See New Jersey Assembly Bill 3979, New Jersey Legislature 2018-2019 Session,
Second Session (enacted January 2020).
87

See New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019).
88

See South Carolina House Bill 3967, One Hundred and Twenty Third Legislative
Session (enacted May 2020).
89

See Texas House Bill 650, Eighty Sixth Texas Legislature, 2019-2020 Section
6 (enacted May 2019).
90

See Virginia House Bill 1648, 2020 Virginia Legislative Session (enacted
March 2020).
91

See Washington Senate Bill 6112, House Bill 2277, 2019-2020 Washington State
Legislature (enacted April 2020).
92

See Louisiana House Bill 344, Louisiana State Legislature, 2020 Session
(enacted June 2020), Section 1(B).
93

See Texas House Bill 650, Eighty Sixth Texas Legislature, 2019-2020 (enacted
May 2019), Section 501.144(a) (barring such placement “unless the director or
director’s designee determines that the placement is necessary based on a
reasonable belief that the inmate will harm herself, her unborn child or infant,
or any other person or will attempt escape.”); Virginia House Bill 1648, 2020
Virginia Legislative Session (enacted March 2020), Article 2.2 (barring such
placement “unless an employee of the Department has a reasonable belief that
the inmate will harm herself, the fetus, or any other person or poses a
substantial flight risk.”); South Carolina House Bill 3967, One Hundred and
Twenty Third Legislative Session (enacted May 2020) (“Correctional facilities,
local detention facilities, and prison or work camps must not place a known
94

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43

pregnant inmate, or any female inmate who has given birth within the previous
thirty days, in restrictive housing unless there is a reasonable belief the
inmate will harm herself, the fetus, or another person, or pose a substantial
flight risk.”).
Georgia House Bill 345, 2019-2020 Georgia General Assembly, Regular Session
(enacted May 2019), Section 1(e); (barring, without exception, the placement
“in solitary confinement, in administrative segregation, or for medical
observation in a solitary confinement setting” for any “pregnant woman or woman
who is in the immediate postpartum period”).
95

Maryland Senate Bill 809, Maryland General Assembly, 2019 Session (enacted
April 2019), Section 9-601.1(B)-(C) (barring placement of any pregnant woman in
restrictive housing unless there is “a serious and immediate risk of physical
harm to the inmate or another” or “an immediate and credible flight risk that
cannot be reasonably prevented by other means” or “a situation that poses a
risk of spreading a communicable disease that cannot be reasonably mitigated by
other means.”).
96

97

2018 Mass. Legis. Serv. Ch. 69, § 39A(d).

Montana House Bill 763, Sixty Sixth Regular Session of the Montana
Legislature, 2019 (enacted May 2019), Section 3 (barring placement of any
pregnant or postpartum woman in restrictive housing unless an approval has been
made by an administrator based on “exigent circumstances.”).
98

New Jersey Assembly Bill 314, New Jersey Legislature 2018-2019 Session, Second
Session (enacted July 2019), Section 3 (barring the use of restrictive housing,
with exceptions, for any prisoner who “is pregnant, is in the postpartum period,
or has recently suffered a miscarriage or terminated a pregnancy”).
99

New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019) (barring the use of restrictive housing, without exception,
for any inmate known to be pregnant).
100

101

See First Step Act of 2018, § 613, Pub. L. 115-391, 132 Stat. 5194, 5248.

See New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019), Section 3(A).
102

See Washington Senate Bill 6112, House Bill 2277, 2019-2020 Washington State
Legislature (enacted April 2020), Section 3.
103

See Nebraska Legislative Bill 230, 2019-2020 Nebraska Unicameral Legislature
(enacted February 2020), Sections 4-5 (requiring that “[d]ocumentation of the
room confinement shall include the date of the occurrence; the race, ethnicity,
age, and gender of the juvenile; the reason for placement of the juvenile in
room confinement; an explanation of why less restrictive means were
unsuccessful; the ultimate duration of the placement in room confinement;
facility staffing levels at the time of confinement; and any incidents of selfharm or suicide committed by the juvenile while he or she was isolated.”).
104

105

Neb. Rev. St. § 83-4,134.01(2) (2018).

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44

Circumstances include a temporary, facility-wide, emergency lockdown, a
mental health emergency requiring “medical isolation,” and a request by the
individual for protective custody. A 314, S 3261, 2018-2019 Leg., Reg. Sess.
(N.J. 2019). Section 4(b).
106

See Montana House Bill 763, Sixty Sixth Regular Session of the Montana
Legislature, 2019 (enacted May 2019), Section 12.
107

See Arkansas House Bill 1755, Ninety Second Arkansas General Assembly, 2019
(enacted April 2019), Sections 1(b), 2(b) (barring placement for youth in
solitary unless the placement is due to “[a] physical or sexual assault
committed by the juvenile while in the juvenile detention facility; . . .
[c]onduct of the juvenile that poses an imminent threat of harm to the safety
or well-being of the juvenile, the staff, or other juveniles in the juvenile
detention facility; or . . . [t]he juvenile escaping or attempting to escape
from the 4 juvenile detention facility,” and the director of the facility
provides written authorization “every twenty-four-hour period during which the
juvenile remains in punitive isolation or solitary confinement after the initial
twenty-four (24) hours.”
108

109

Id. §§ 39, 87.

Montana House Bill 763, Sixty Sixth Regular
Legislature, 2019 (enacted May 2019), Section 4.
110

Session

of

the

Montana

See New Jersey Assembly Bill 314, New Jersey Legislature 2018-2019 Session,
Second Session (enacted July 2019), Section 4(b).
111

See New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019), Section 4.
112

113

Id.

See Colorado Senate Bill 20-007, Colorado General Assembly, 2019 Session
(enacted July 2020).
114

See U.S. Senate Bill 756, One Hundred and Fifteenth U.S. Congress, Second
Session (enacted December 2018).
115

See Maryland House Bill 1001, Maryland General Assembly, 2019 Session
(enacted May 2019).
116

117

See 2018 Mass. Legis. Serv. Ch. 69, § 39B.

See Michigan Senate Bill 848, Ninety Ninth Michigan Legislature, 2018 Regular
Session (enacted June 2018).
118

See Minnesota Senate File 8, Ninety First Minnesota Legislature, 1st Special
Session 2019-2020 (enacted May 2019).
119

Nebraska Legislative Bill 230, 2019-2020 Nebraska Unicameral Legislature
(enacted February 2020), in Sections 4 provides,
120

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45

“The juvenile facility shall submit a report quarterly to the
Legislature on the juveniles placed in room confinement; the
length of time each juvenile was in room confinement; the race,
ethnicity, age, and gender of each juvenile placed in room
confinement; facility staffing levels at the time of confinement;
and the reason each juvenile was placed in room confinement. The
report shall specifically address each instance of room
confinement of a juvenile for more than four hours, including all
reasons why attempts to return the juvenile to the general
population of the juvenile facility were unsuccessful. The report
shall also detail all corrective measures taken in response to
noncompliance with this section. The report shall redact all
personal identifying information but shall provide individual,
not aggregate, data. The report shall be delivered electronically
to the Legislature. The initial quarterly report shall be
submitted within two weeks after the quarter ending on September
30, 2016. Subsequent reports shall be submitted for the ensuing
quarters within two weeks after the end of each quarter; and (d)
The Inspector General of Nebraska Child Welfare shall review all
data collected pursuant to this section in order to assess the
use of room confinement for juveniles in each juvenile facility
and prepare an annual report of his or her findings, including,
but not limited to, identifying changes in policy and practice
which may lead to decreased use of such confinement as well as
model evidence-based criteria to be used to determine when a
juvenile should be placed in room confinement. The report shall
be delivered electronically to the Legislature on an annual
basis.”
See New Mexico House Bill 364, 2019 New Mexico Legislature, Regular Session
(enacted April 2019).
121

See Virginia Senate Bill 1777, House Bill 1642, 2020 Virginia Legislative
Session (enacted March 2019).
122

Minnesota Senate File 8, Ninety First Minnesota Legislature, 1st Special
Session 2019-2020 (enacted May 2019), Article 3, Section 10, Subdivision 9.
123

124See

2019 Restrictive Housing Report, at:
https://mn.gov/doc/assets/2019%20Restrictive%20Housing%20Report%20Jan%202020_
tcm1089-443721.pdf.
See 2020 Restrictive Housing Report, at:
https://mn.gov/doc/assets/DOC%202020%20Restrictive%20Housing%20Report%20%28fi
nal%29_tcm1089-466710.pdf.
125

N.Y. S. 2836, A.B. A2772A, HALT Act, 2021-22 Leg., Reg. Sess. (N.Y. 202122), § 14.
126

127

Id. § 1.

128

Id. § 5.

129

Id.

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46

130

Id.

131

Id.

132

Id. § 2.

133

Id. § 5

134

Id.

135

Colo. H.B. 21-1211 (June 24, 2021).

136

Id. § 17-26-302(6).

137

Id. § 17-26-303(1).

138

Id. § 17-26-303(2).

139

Id. § 17-26-303(2)(j).

140

Conn. S.B. No. 1059, Pub. Act. No. 21-110 (2021).

141

Conn. Exec. Order No. 21-1 (June 30, 2021).

142

Id. § 2.

143

Id. § 3.

144

Id. § 5.

145

2017 Conn. Pub. Act. No. 17-239.

146

Conn. Gen. Stat. § 46b-133(e).

The definition is “the placement of a juvenile in a location that is separate
from the general population as a punishment.” Ark. H.B. 1470 (enacted Mar.
2021).
147

The definition is “the isolation of a juvenile in a cell separate from the
general population as a punishment.” Id.
148

149

Colo. H.B. 21-1211 (June 24, 2021) § 17-26-303(1).

The definition is “any form of cell confinement for more than seventeen hours
a day other than in a facility-wide emergency or for the purpose of providing
medical or mental health treatment.” N.Y. S. 2836, A.B. A2772A, HALT Act, 202122 Leg., Reg. Sess. (N.Y. 2021-22), §§ 1-2.
150

The definition is “the involuntary segregation of a child from the rest of
the resident population regardless of the reason for the segregation.” Tenn.
S.B. 383 (enacted June, 2021).
151

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47

152

Id.

The definition is “a housing placement that requires an inmate or detainee
to be confined in a cell for at least twenty-two (22) hours per day.” Ark. H.B.
1470 (enacted Mar. 2021).
153

154

Id.

The definition is “the state of being involuntarily confined in one’s cell
for approximately twenty-two hours per day or more with very limited out-ofcell time, movement, or meaningful human interaction whether pursuant to
disciplinary, administrative, or classification action.” Colo. H.B. 21-1211
(June 24, 2021) § 17-26-302(6).
155

156

Ky. S.B. 84 (Mar. 2021).

The definition is “any form of cell confinement for more than seventeen hours
a day other than in a facility-wide emergency or for the purpose of providing
medical or mental health treatment.” N.Y. S. 2836, A.B. A2772A, HALT Act, 202122 Leg., Reg. Sess. (N.Y. 2021-22), § 1.
157

158

Id. § 2.

159

Colo. H.B. 21-1211 (June 24, 2021) § 17-26-303(2)(j).

N.Y. S. 2836, A.B. A2772A, HALT Act, 2021-22 Leg., Reg. Sess. (N.Y. 202122), § 5.
160

161

Id.

162

Colo. H.B. 21-1211 (June 24, 2021) § 17-26-303(2)(i).

N.Y. S. 2836, A.B. A2772A, HALT Act, 2021-22 Leg., Reg. Sess. (N.Y. 202122), § 5
163

164

Id.

165

La. H.R. 50 (May 27, 2021).

Kentucky Senate Bill 84, Kentucky General Assembly, 2021 Session (enacted
March 2021).
166

167

La. H.R. 50 (May 27, 2021).

N.Y. S. 2836, A.B. A2772A, HALT Act, 2021-22 Leg., Reg. Sess. (N.Y. 202122).
168

HR 176 Restricting the Use of Solitary Confinement Act, 2021 Leg., Reg. Sess.
(U.S. 2021).
169

170

HR 131 Kalief’s Law, 2021 Leg., Reg. Sess. (U.S. 2021).

Legislative Regulation of Isolation in Prison: 2018-2021 Liman Center Aug. 20, 2021

48

HR 2293, Federal Correctional Facilities COVID-19 Response Act, 2021 Leg.,
Reg. Sess. (U.S. 2021).
171

172

Id.

These states are Arizona, Arkansas, Illinois, Kentucky, Massachusetts,
Missouri, Nebraska, New York, Pennsylvania, Rhode Island, and Washington.
173

See Delaware’s Senate Bill 98, Delaware General Assembly, 2021-2022 Session;
South Carolina’s Senate Bill 51, South Carolina General Assembly, 2021-2022
Session.
174

175

HB 5927, 2021-22 Leg., Reg. Sess. (2021).

176

LD696, 2021-2022 Leg., Reg. Sess. (2021).

177

NE LB471, 2021-2022 Leg., Reg. Sess. (2021).

178

HB 557, 2021 Leg., Reg. Sess. (2021).

179

HB1887, 2021-2022 Leg.

Kentucky Senate Bill 84, Kentucky General Assembly, 2021 Session (enacted
March 2021).
180

181

See Kentucky House Bill 86, Kentucky General Assembly, 2021 Session.

182

See Massachusetts S. 1567, H. 2089, 2021 Session.

183

See Massachusetts S. 1578, H. 2504, 2021 Session.

The Federal Anti-Solitary Taskforce, A BLUEPRINT FOR ENDING SOLITARY CONFINEMENT BY
FEDERAL
GOVERNMENT,
https://www.aclu.org/sites/default/files/field_document/the_federal_antisolitary_taskforce_proposal
_1.pdf.
184

THE

Administrative Segregation, Degrees of Isolation and Incarceration:
National Overview of State and Federal Correctional Policies.
185

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A