Reassessing Solitary Confinement:
The Human Rights, Fiscal, and Public Safety Consequences

Hearing Before the Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights
June 19, 2012

Statement submitted by
Hope Metcalf, Director of the Arthur Liman Public Interest Program, and
Judith Resnik, Arthur Liman Professor of Law
Yale Law School

June 15, 2012

Liman Solitary Confinement Statement, June 15, 2012 revised 2

In keeping with Arthur Liman’s commitment to a just and humane criminal justice
system, much of the work of the Arthur Liman Public Interest Program at Yale Law School
focuses on understanding the uses and implications of incarceration in the United States.1
During the past few years, a special concern has been the use of prolonged solitary
confinement—i.e., placing individuals in physical and social isolation in their cells for 22 to 24
hours per day and often for indefinite periods of time. At the Fourteenth Annual Liman
Colloquium—Imprisoned—held in 2010, more than 400 participants addressed the
unprecedented numbers of individuals held in U.S. prisons.2 In the fall of 2011, we taught a
weekly seminar, Abolition: Slavery, Supermax, and Social Movements, which posed the question
whether “Supermax” – prisons organized to keep individuals in confinement indefinitely in
conditions of extreme sensory and social deprivation – should be the subject of an “abolition”
movement, as was slavery.
In the spring of 2012, the Liman Program, working with the ABA Subcommittee on
Solitary Confinement and Columbia Law School, co-sponsored a roundtable, Incarceration and
Isolation. The day-long meeting brought together leaders in corrections, experts in law,
criminology, sociology, and psychology, and lawyers and others in the field. In advance, we
worked with a group of law students who reviewed public information so as to provide a picture
of what solitary confinement looks like inside of America’s prisons.3 A summary of preliminary
findings follows.
                                                            
1

The Arthur Liman Public Interest Program and Fund at Yale Law School was created in 1997 to forward
the commitments of Arthur Liman (YLS ’57) to public service in the furtherance of justice. Arthur Liman was chief
counsel to the New York State Special Commission on Attica Prison, which in 1972 issued a major report on prison
conditions. Thereafter, Arthur Liman served as President of the Legal Aid Society of New York and of the
Neighborhood Defender Services of Harlem; Chair of the Legal Action Center in New York City; Chair of the New
York State Capital Defender’s Office; and Special Counsel to the United States Senate Committee Investigating
Secret Military Assistance to Iran and the Nicaraguan Opposition.
Judith Resnik is the Arthur Liman Professor of Law at Yale Law School and the Founding Director of the
Liman Public Interest Program and Fund. Her article, Detention, The War on Terror, and the Federal Courts, 110
COLUM. L. REV. 579 (2010), focused in part on solitary confinement. Hope Metcalf is Director of the Liman
Program. She also supervises the Detention and Human Rights Clinic, and is a co-chair of the ABA Subcommittee
on Solitary Confinement. These comments reflect the authors’ personal views. For additional details of the Liman
Program, see http://www.law.yale.edu/intellectuallife/ArthurLimanPIFellowship&fund.htm.
2
Liman Newsletter, Imprisoned (Fall 2010),
http://www.law.yale.edu/documents/pdf/Liman/Liman_NL_2010_web.pdf.
3
The Liman Survey of Prolonged Solitary Confinement was done by Yale Law students Brian Holbrook,
Danielle Lang, Albert Monroe, Ester Murdukhayeva, Katherine Oberembt, Yaman Salahi, and by Columbia Law
student Joanna Wright. In addition to supervision from us and Brett Dignam, Clinical Professor of Law at Columbia
Law School, the Senior Liman Fellow in Residence, Sia Sanneh, oversaw the data collection and analysis. For each
of the fifty states, the student-researchers examined statutes, administrative regulations, correctional rules and
procedures, policies and classification instruments. In some instances, they turned to prisoner handbooks and to
state public record and FOIA requests. Our statement is also informed by the collective efforts of Isra Bhatty,
Katherine D’Ambrosio, Emily Gerrick, David Lebowitz, Matthew Lee, Kate Mollison, Jamelia Morgan, Sophia

Liman Solitary Confinement Statement, June 15, 2012 revised 2

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We submit this statement based on our study of the law, policy, and practices of solitary
confinement. We are concerned that prolonged solitary confinement is used too often, for too
long, and with too little oversight. Given the immense fiscal, societal, and human costs, we hope
that this Hearing will be the first of many to address the harms of prolonged solitary confinement
so as to develop new laws to limit its uses.
I.

A Survey of State and Federal Policies on the Isolation of Prisoners in the United
States: The Limited Public Information about the Process, Duration, and Practices
of Confinement

Our specific concern is the development in the 1970s in the United States of a new form of
incarceration – an institution organized to keep people in isolation indefinitely. To provide a
window into the nature of the isolation, we borrow a description from the 2005 decision,
Wilkinson v. Austin, of the United States Supreme Court, which detailed one state’s Supermax
facility – the institution that opened in Ohio in 1998 to confine more than five hundred
prisoners.4 Conditions there were:
more restrictive than any other form of incarceration in Ohio, including conditions on its
death row . . . . [A]lmost every aspect of an inmate’s life is controlled and monitored.
Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A
light remains on in the cell at all times, though it is sometimes dimmed, and an inmate
who attempts to shield the light to sleep is subject to further discipline. During the one
hour per day that an inmate may leave his cell, access is limited to one of two indoor
recreation cells.
Incarceration . . . is synonymous with extreme isolation. In contrast to any other Ohio
prison . . . [the] cells have solid metal doors with metal strips along their sides and
bottoms which prevent conversation or communication with other inmates. All meals
are taken alone in the inmate’s cell instead of in a common eating area. Opportunities
for visitation are rare and in all events are conducted through glass walls. It is fair to say
[Supermax] inmates are deprived of almost any environmental or sensory stimuli and of
almost all human contact.
Aside from the severity of the conditions, placement at [the Supermax] is for an
indefinite period of time, limited only by an inmate’s sentence. For an inmate serving a
life sentence, there is no indication how long he may be incarcerated . . . once assigned
there.5
                                                                                                                                                                                                
Shin, Helen Vera, and Rachel Wiener, who were members of the Detention and Human Rights Clinic at Yale Law
School.
4
545 U.S. 209 (2005).
5
Id. at 214-15.

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Given this description, we sought to learn more about the use of prolonged isolation
around the United States. As noted, we relied on publicly available data, some of which is
summarized below. We learned that very limited information is available to enable a concrete
and specific understanding of the numbers of persons in prolonged solitary confinement, the
characteristics of those persons, the processes that were provided before they were placed in
isolation, and the rules that permit them to exit from that isolation.6 For several states, studentresearchers were unable to find any policies or regulations available to the public about the use
of segregation. Of the policies that were available, many were written in vague and general
terms. Another caveat is that, in many states, the Department of Corrections is exempt from
ordinary Administrative Procedure Act requirements for policy-making, and therefore policies
can change without either notice or comment.7 In short, the Spring 2012 Liman Survey of
Prolonged Solitary Confinement is a preliminary review that will be augmented when additional
materials become available.
Yet another challenge in providing a national picture is that various terms are used to
describe the placement of individuals in long-term solitary confinement. 8 One common
formulation refers to “punitive segregation” or “disciplinary segregation,” 9 which is the
                                                            
6

In terms of national data collection, other researchers have reviewed statistics compiled by the Bureau of
Justice Statistics (BJS) and have concluded that as of 2005, 81,622 individuals were in forms of “restrictive housing.”
Angela Browne & Suzanne Agha, Prisons Within Prisons: The Use of Segregation in the United States, 21 Federal
Sentencing Reporter 1, 1 (October 2011) (citing James J. Stephan, Census of State and Federal Adult Correctional
Facilities, 2005 (Bureau of Justice Statistics, U.S. Department of Justice, October 2008)).
7
See, e.g., N.D. CENT. CODE § 28-32-01(11)(f) (1991) (“A rule concerning only inmates of a correctional
or detention facility” is exempted from the North Dakota Administrative Agencies Practice Act). For a list of states
that exempt prison rulemaking from their APAs, see Giovanna Shay, Ad Law Incarcerated, 14 BERKELEY J. CRIM. L.
329 app. at 376 (2009).
8
Jurisdictions also are not consistent in how they designate individuals for the highest classification levels.
For example, some states use the terms “maximum security” or “maximum custody,” but others use the designation
“close custody.” Compare Ky. DOC Policy 18.5, at 2 (May 14, 2008),
http://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Documents/CH18/185%20Custody%20and%20Security%20Guidelines.pdf, with Miss. DOC Inmate Handbook Ch. 1, at 1-2 (Jul. 11,
2011), http://www.mdoc.state.ms.us/Inmate_Handbook/CHAPTER%20I.pdf, and Idaho DOC Control Number
303.02.01.001, at 7 (Aug. 19, 2010),
http://www.idoc.idaho.gov/sites/default/files/webfm/documents/about_us/policies_and_forms/policypublic/3030201
001.pdf. Some states have small units at one or more specific facilities designated as long-term housing for inmates
with a prolonged pattern of disciplinary sanctions, referred to as “Intensive Management Units” or “Special
Management Units.” See Wash. DOC Policy 320.255 (July 9, 2009) (“Intensive Management Units”),
http://www.doc.wa.gov/policies/showFile.aspx?name=320255; Pa. DOC Policy DC-ADM 802 (June 7, 2011)
(“Special Management Units”),
http://www.portal.state.pa.us/portal/server.pt/document/919463/802_administrative_custody_procedures_pdf.
9
E.g., Ala. DOC Policy 804.02, at 1 (July 9, 1995) (“punitive segregation”),
http://www.correct.state.ak.us/pnp/pdf/804.02.pdf; Ark. DOC Policy 10-20, at 1 (July 23, 2010) (“punitive
segregation”); Conn. DOC Directive 9.5, at 4 (Jan. 1, 2008) (“punitive segregation”),
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0905.pdf; Neb. DOC Regulation 210.01, at 2 (June 29, 2010)
(“disciplinary segregation”), http://www.corrections.nebraska.gov/pdf/ar/classification/AR%20210.01.pdf; Wyo.

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placement in solitary confinement as punishment for past conduct. This form of segregation is
typically for a set duration and consecutive terms may be served. Placement in solitary
confinement for the possibility of future wrongdoing is frequently referred to as “administrative
segregation,”10 which often is not limited its duration and which is an umbrella for a range of
rationales for the placement of an individual in isolation.11
Despite these limits, our preliminary review of public information offers a few lessons.
First, the profound isolation that Ohio imposed, as the Supreme Court described in Wilkinson is
not, we regret to report, unusual. Indeed, the common feature of the custody settings that our
research identified is that prisoners spend a minimum of twenty-three hours per day in a cell.12
Other common conditions include very limited access to phone and visitation privileges.
Likewise, access to outside recreation areas is generally limited to three to five hours per week.
Second, all states provided written notice of the reasons for placement in advance of or
contemporaneous with confinement, but corrections officials generally have a great deal of
discretion in the initial and continuing placement of prisoners in administrative segregation. In
determining whether someone should be assigned to administrative segregation, many
correctional systems use a list of factors13 that specify particular justifications but also typically
include broad, catch-all provisions.14 Further, in the public data reviewed thus far, no system
placed a definite time limit on the use of administrative segregation.
                                                                                                                                                                                                
DOC Policy 3.101, at 17 (Oct. 15, 2009) (“disciplinary segregation”),
http://doc.state.wy.us/Media.aspx?mediaId=340.
10
E.g., Haw. Corrections Administration Policy 11.01, at 1 (Dec. 12, 2009); Minn. DOC Directive 301.085
(June 3, 2008), http://www.doc.state.mn.us/DocPolicy2/html/DPW_Display_TOC.asp?Opt=301.085.htm; Nev.
DOC Administrative Regulation 507 (May 20, 2010), http://www.doc.nv.gov/sites/doc/files/pdf/AR507.pdf; Ohio
Department of Rehabilitation & Corrections Administrative Rule 1-10-15 (Jan. 1, 2003),
http://www.drc.ohio.gov/web/administrative_rules/documents/1-10-15.pdf.
11
A third common category is protective segregation, or protective custody, which is used when prison
officials believe that a given prisoner is at risk from others in the general population.
12
E.g., 20 ILL. ADM. CODE 504.620 (2012); Pa. DOC Policy DC-ADM 801, at 6-1 (June 13, 2008),
http://www.portal.state.pa.us/portal/server.pt/document/916568/801_inmate_discipline_pdf; Vt. DOC Policy 410.06,
Attach. 1 (Dec. 18, 2006), http://www.doc.state.vt.us/about/policies/rpd/correctional-services-301-550/401-500programs-security-and-supervision/410.06%20Restrictive%20Housing.pdf; Wash. DOC Policy 320.255, at 3 (Aug.
9, 2009), http://www.doc.wa.gov/policies/showFile.aspx?name=320255.
13
In some states, prisoners may be put in long-term isolation based on classification determinations. See,
e.g., Cal. Dep’t of Corrections and Rehabilitation, Expert Panel Study of the Inmate Classification Score System 2
(Dec. 2011), http://www.cdcr.ca.gov/Reports/docs/2010-2011-Classification-Study-Final-Report-01-10-12.pdf.
14
For example, Nebraska considers the following factors in placing a prisoner in administrative
segregation:
1. The threat potential to staff and/or inmates posed by the inmate.
2. The behaviors leading to the inmate's referral or placement on Administrative
Segregation status.
3. The inmate's history of or lack of predatory behavior.
4. The inmate's history of or lack of assaultive behavior.

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A third lesson is that, while a few states delineate ways in which prisoners can be moved
out of prolonged confinement, most of the policies reviewed lacked specificity. Some
jurisdictions have “step-down” or transitional programming available for prisoners prior to
transfer to general population or release.15 Data are not publicly available about either the rates
of exit or the other effects of these programs.16 While many states appear to allow individuals in
long-term administrative segregation to have some access to programs such as life skill classes
and other educational programs available to other inmates, such access is generally limited to
offering inmates written materials to use in their isolation cells.17
Fourth, a diversity of rules govern placement. As noted, all states provide written notice
in advance of or contemporaneous with placement in administrative segregation. Some states
permit hearings, which may include the opportunity for written or oral testimony, prior to
placement. Several states appear to provide written notice but no hearing.18
                                                                                                                                                                                                
5. The inmate's history of or lack of escape/attempted escapes.
6. The inmate's history of or lack of membership in a criminal threat group.
7. The injuries the inmate may have caused to others.
8. The inmate's use of weapon(s) in this or prior incidents.
9. The inmate's documented mental health issues.
10. The inmate's prior criminal history.
11. The inmate's prior disciplinary record (misconduct reports, etc.).
12. The inmate's history of or lack of illicit drug use within the [correctional system].
13. The programming that the inmate has or has not completed.
14. The prior classification decisions involving the inmate ’s status.
15. The inmate's documented behavior (incident reports, etc.) and interactions with staff and other
inmates.
16. The professional judgment and recommendations of Nebraska Department of Correctional
Services staff regarding the classification of the inmate.
17. The real or perceived threat of harm to the inmate from other inmates.
18. The inmate's statements regarding admission of prior actions, a commitment to changing
behavior, and accountability for prior acts.
19. Any other information regarding the inmate that the classification authority deems appropriate.
Nebraska Department of Correctional Services, Admin. Reg. 201.05 (July 28, 2010).
15
See, e.g., Bureau of Prisons, Institution Supplement, General Population and Step-Down Unit Operations
(Oct. 13, 2006) (describing “step-down” program at Florence ADX); Connecticut Department of Corrections,
“Northern Correctional Institution Administrative Segregation Program,” (undated),
www.ct.gov/doc/lib/doc/pdf/northernascc.pdf.
16
Litigation has generated some information about these programs’ operations. See Submission of Laura
Rovner, at 9-10, filed in Ahmad et al. v. United Kingdom, Application Nos 24027/07, 11949/08 and 36742/08, Euro.
Ct. Hum. Rts (Apr. 20, 2009) (citing testimony of Florence ADX warden and describing how federal step-down
program at Florence ADX is designed, in theory, to be completed in 36 months, but in practice, five percent of
prisoners completed the program in that period). 
17
Florida’s program, for example, is a general transitional program mandated by statute for all inmates in
the six months prior to their release from prison. FLA. ADMIN. CODE 33-601.504 (2012).
18
These are Wisconsin and Michigan.

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Processes regarding the review of continued placement are yet more variable and provide
fewer procedural protections. For most states, it appears that review could occur on an informal
level by staff members or a classification committee. The content of such reviews is unclear.
Public information did not often explain whether inmates receive notice, can present new
evidence, or obtain a staff advocate for the informal reviews.19 Further, for states that use static
factors for confinement—such as the severity of offense, or membership/affiliation with a
security threat group—it is extremely difficult to show a change in circumstances, meaning that
an individual is likely to be left in segregation for long periods.20
Fifth, a great deal of variation exists in the treatment of the mentally ill. Ten states
provide some restriction on placing mentally ill inmates in solitary confinement.21 In a few
states, there appear to be absolute bars on such placements.22 Several other states’ regulations
                                                            
19

See, e.g., 15 Cal. Code Reg. 3341.5 (8)(c)(2)(A)(1); Arizona Department of Corrections, Department
Order Manual, Order 801.04..
20
A recent report by California’s Department of Corrections shows that reliance on static factors can
extend periods of isolation. The March 2012 report analyzed California’s classification system, which uses pointsbased instruments; an inmate receives more points for meeting enumerated criteria. Beyond a certain threshold, that
inmate is classified as “close custody,” and placed in isolation. The report concluded that the use of “Mandatory
Minimum” scores, which applies additional points to inmates incarcerated for certain violent or sex crimes, crimes
of public notoriety or crimes carrying life sentences, “appear[s] to ‘trap’ many well-behaving inmates into higher
housing levels.” CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, EXPERT PANEL STUDY OF THE
INMATE CLASSIFICATION SCORE SYSTEM 2 (Dec. 2011). The report further cautioned against overinclusive
classification. It concluded that placing inmates whose scores are just above the threshold for close custody has “a
criminogenic effect” on those individuals and does not predict institutional misbehavior. Id. The report also
identified mental illness, which can manifest in behavior that in turn results in an increased classification score, as
one of the critical factors behind overclassification. Id. at 140.
21
Conn. Admin. Directive 9.5.10.I (Jan. 1, 2008) (providing that prisoners’ mental health will be
considered before disciplinary measures are imposed that could result in transfer to administrative segregation),
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0905.pdf; Brian Mast v. J. David Donahue, No.2:05-cv-00037
LJM/WGH, Private Settlement Agreement Between Defendants and Plaintiffs 2 (Jan. 23, 2007) (Indiana will not
place mentally ill offenders in isolation); Me. DOC Policy Number 15.1, Administrative Segregation Status, at 8
(Sept. 1, 2011); Mich. DOC Policy Directive 04.06.182, Mentally Disabled Prisoners in Segregation, at 1 (Dec. 29,
2010), http://www.michigan.gov/documents/corrections/0406182_342182_7.pdf; Mont. DOC Policy Directive
4.5.21, at 1 (Oct. 27, 2009), http://www.cor.mt.gov/content/Resources/Policy/Chapter4/4-5-21.pdf; N.H. ADMIN.
CODE R. COR 404.07 (2012) (punitive segregation); N.M. DOC Level V/VI Table of Procedures, Forms, and
Attachments, at 7 (Aug. 25, 2010), http://www.corrections.state.nm.us/policies/current/CD-143000.pdf; N.C. DOC,
Division of Prisons Policy & Procedures C.1700 High Security Maximum Control, at 1 (Nov. 1, 2011),
http://www.doc.state.nc.us/dop/policy_procedure_manual/C1700.pdf; Vt. DOC Rule 05-049, Classification,
Treatment and the Use of Administrative and Disciplinary Segregation for Inmates with a Serious Mental Illness
(Dec. 2005), http://doc.vermont.gov/about/policies/rpd/correctional-services-301-550/361-370-programs-treatmentprograms/370%20Classification,%20Treatment%20and%20Use%20of%20Admin%20and%20Discip%20Seg%20fo
r%20Inmates%20with%20a%20SMI.pdf.
22
Some rules come from policies, and others from court orders or settlement decrees. See, e.g., Mast v.
Donahue, No.2:05-cv-00037 LJM/WGH, Private Settlement Agreement Between Defendants and Plaintiffs, 2 (Jan.
23, 2007) (Indiana will not place mentally ill offenders in isolation); N.M. DOC Level V/VI Table of Procedures,
Forms, and Attachments, at 7 (Aug. 25, 2010), http://www.corrections.state.nm.us/policies/current/CD-143000.pdf.

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appear effectively to exclude severely mentally ill prisoners from solitary confinement.23 The
definition of what constitutes “serious mental illness” is a distinct question to which some states
provide written answers.24
A final lesson is that demographic information as to the use of long-term isolation is
largely unavailable. In 1999, Roy D. King published a chart identifying some 25,000 inmates in
solitary confinement in American prisons.25 See Appendix A. Updated specifics and sources are
difficult to obtain, except in a few instances. In Pennsylvania, for example, correctional
authorities provide a breakdown, in monthly population reports, of the number of inmates in
segregation.26 In Idaho, one can work backward by determining which facilities are classified as
“Supermax” to learn the number of beds in those facilities.27
Going beyond population numbers, ascertaining demographic characteristics about the
solitary population and the frequency of isolation is even more difficult. Basic data as to the
functioning of systems for isolation—the reasons for admission, the duration of stays, the
prevalence of mental illness and recidivism rates—are unavailable. Racial, gender, ethnic, and
age breakdowns for inmates in solitary are also generally unpublished.28
                                                            
23

North Carolina’s regulations require that the Director of the Division of Mental Health (or designee)
personally approve the placement of every inmate placed into solitary confinement with a diagnosis of serious
mental illness. N.C. DOC, Division of Prisons Policy & Procedures C.1700 High Security Maximum Control, at 1
(Nov. 1, 2011), http://www.doc.state.nc.us/dop/policy_procedure_manual/C1700.pdf. Montana’s regulations state
that “unstable psychiatric illness” and other mental and medical illnesses contraindicate solitary confinement. Mont.
DOC Policy Directive 4.5.21, at 1 (Oct. 27, 2009), http://www.cor.mt.gov/content/Resources/Policy/Chapter4/4-521.pdf. Maine’s regulations state that no inmate will be placed into solitary confinement if the inmate’s physical or
mental condition contraindicates the placement. Me. DOC, Policy Number 15.1, Administrative Segregation Status,
at 8 (Sept. 1, 2011). In practice, this excludes all severely mentally ill from solitary confinement. See Lance Tapley,
Reducing Solitary Confinement, PORTLAND PHOENIX, Nov. 2, 2011.
24
For example, Vermont defines “serious mental illness” as the “[s]ubstantial disorder of thought, mood,
perception, orientation or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality,
or ability to meet the ordinary demands of life. This includes, but is not necessarily limited to, diagnoses of
schizophrenia, schizoaffective disorder, psychotic conditions not otherwise specified, bipolar disorder, and severe
depressive disorders.” Vermont DOC Rule 05-049, Classification, Treatment and the Use of Administrative and
Disciplinary Segregation for Inmates with a Serious Mental Illness (Dec. 2005).
25
Roy D. King, The Rise and Rise of Supermax: An American Solution in Search of a Problem?, 1
PUNISHMENT & SOC'Y 163, 175 tbl.1 (1999).
26
Pa. DOC Monthly Population Report, as of Feb. 29, 2012, at 2,
http://www.portal.state.pa.us/portal/server.pt/document/1227704/mtpop1202_pdf.
27
Idaho DOC Standard Reports for September 2011, at 7 (396 inmates incarcerated at Idaho Maximum
Security Institution), http://www.idoc.idaho.gov/content/document/standard_monthly_rept_sept_2011; Idaho DOC,
“Idaho Maximum Security Institution”,
http://www.idoc.idaho.gov/content/locations/prisons/idaho_maximum_security_institution (describing custody
levels for offenders at IMSI).
28
Our students found two states, Colorado and Washington, that have participated in or authored studies
examining rates of mental illness among subsets of their solitary confinement inmate populations. See Maureen

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In sum, while we had hoped to be able to sketch a clear national picture of solitary
confinement in the United States circa 2012, we cannot do so. Individual correctional
departments may well have detailed data on how many inmates are held in solitary settings, the
causes for their placement, and the length of confinements, but such information is not reported
systematically to permit interjurisdictional comparisons and a national overview.
II.

The Law of Solitary Confinement

The 2005 Supreme Court description in Wilkinson of the extreme sensory deprivation is
chilling. One might think that such a description would lead to a prohibition—that individuals
could not be subjected to isolation and sensory deprivation indefinitely. Indeed, in 1890, the
Supreme Court, objecting to the solitary confinement of an individual convicted of murder,
observed when solitary confinement had been used in the 1820s, “after even a short
confinement,” such detention put a prisoner “into a semi-fatuous condition,” making him unable
to “recover sufficient mental activity to be of any subsequent service to the community.” 29
About a century later, in the 1970s, the Court approved district court findings that Arkansas’s use
of indefinite punitive isolation (in that instance, an “average of 4 . . . prisoners were crowded into
windowless 8’x10’ cells containing no furniture other than a source of water and a toilet that
could only be flushed from outside the cell”) violated the Eighth Amendment.30
A number of lower courts echoed those concerns in describing the effects of long-term
solitary confinement.31 The Southern District of Texas in 1999 quoted the following expert
description:

                                                                                                                                                                                                
O’Keefe, Administrative Segregation for Mentally Ill Inmates, 45 J. OFFENDER REHABILITATION 149-65 (2007)
(indicating 37% of the inmates in administrative segregation in Colorado had developmental disabilities or mental
health needs); David Lovell & Clark Johnson, Felony and Violent Recidivism Among Supermax Prison Inmates in
Washington State: A Pilot Study 6 (2004) (indicating 21% “probable mental illness rate” among prisoners in
Washington’s Intensive Management Unit), http://www.son.washington.edu/faculty/fac-page-files/LovellSupermaxRecidivism-4-19-04.pdf.
29
In re Medley, 134 U.S. 160, 168 (1890).
30
Hutto v. Finney, 437 U.S. 678, 682 (1978).
31
See, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1230-31 (N.D. Cal. 1995) (observing that “[s]ocial
science and clinical literature have consistently reported that when human beings are subjected to social isolation
and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric
disturbances [including] perceptual distortions, hallucinations, hyperresponsivity to external stimuli, aggressive
fantasies, overt paranoia, inability to concentrate, and problems with impulse control,” and that “[t]here is also an
ample and growing body of evidence that this phenomenon may occur among persons in solitary or segregated
confinement—persons who are, by definition, subject to a significant degree of social isolation and reduced
environmental stimulation.”); see also Miller ex. rel. Jones v. Stewart, 231 F.3d 1248, 1252 (9th Cir. 2000) (“[I]t is
well accepted that conditions such as those present in [solitary confinement] . . . can cause psychological
decompensation to the point that individuals may become incompetent.”); Davenport v. DeRobertis, 844 F.2d 1310,
1313 (7th Cir. 1988) (noting that “isolating a human being from other human beings year after year or even month
after month can cause substantial psychological damage, even if the isolation is not total”); McClary v. Kelly, 4 F.

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In a number of instances, there were people who had smeared themselves with
feces. . . . There were many people who were incoherent when I attempted to talk
to them, babbling, sometimes shrieking, other people who appeared to be full of
fury and anger and rage and were, in some instances, banging their hands on the
side of the wall and yelling and screaming, other people who appeared to be
simply disheveled, withdrawn and out of contact with the circumstances or
surroundings. . . . These were people who appeared to be in profound states of
distress and pain.32
Those observations find support in an array of studies.33
However, in 2005 in Wilkinson, the Court’s description of the harms of Supermax
sustained only its conclusions that such conditions were “dramatic departure from the basic
conditions of [the inmate’s] sentence” so as to constitute an “atypical and significant hardship,”34
sufficient to require a modicum of process under the Fourteenth Amendment.
In contrast, the trial court in the Wilkinson litigation had mandated that certain kinds of
minor infractions in prison could not result in such a severe sanction as confinement in

                                                                                                                                                                                                
Supp. 2d 195, 208 (W.D.NY. 1998) (“A conclusion . . . that prolonged isolation from social and environmental
stimulation increases the risk of developing mental illness does not strike this court as rocket science.”).
32
Ruiz v. Johnson, 37 F. Supp. 2d 855, 909-10 (S.D. Tex. 1999), rev'd on other grounds, 243 F.3d 941 (5th
Cir. 2001).
33
Stuart Grassian & Terry Kupers, The Colorado Study vs. the Reality of Supermax Confinement, CORR.
MENTAL HEALTH REP., at 1, 9 (May-June 2011) (“Just about everyone who has taken a serious look . . . has
concluded there is serious harm from long-term isolated confinement.”); Jeffrey L. Metzner & Jamie Fellner,
Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD.
PSYCHIATRY L., 104, 104 (2010) (solitary confinement “can be as clinically distressing as physical torture.”); Stuart
Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J.L. & POL’Y 325, 331 (2006); A. Vrca, V.
Bozikov, Z. Brzovic, R. Fuchs & M. Malinar, Visual Evoked Potentials in Relation to Factors of Imprisonment in
Detention Camps, 109 INT. J. LEGAL MED. 114, 114-16 (1996) (study of prisoners of war from former Yugoslavia,
finding that the two factors that had the most significant effect on brain waves were solitary confinement and
physical trauma to the head resulting in loss of consciousness; less significant factors included torture by
electrocution and extreme cold).
Solitary confinement has been shown to induce symptoms of serious mental illness. Thomas B. Benjamin
& Kenneth Lux, Solitary Confinement as Psychological Punishment, 13 CAL. W. L. REV. 265, 268 (1977) (noting
that isolation induces “depersonalization, hallucination and delusions”); Richard Korn, The Effects of Confinement
in the High Security Unit at Lexington, 15 SOC. JUST. 8, 14-15 (1988) (same, as to claustrophobia, rage, severe
depression, hallucination, withdrawal, blunting of affect, and apathy); Grassian & Kupers, Colorado Study, supra
note 28, at 333, 335-36 (same, as to hyperresponsivity, panic attacks, or paranoia). In another study, “almost ninety
percent of . . . prisoners had difficulties with ‘irrational anger,’ compared with just three per cent of the general
population,” attributable to “the extreme restriction, the totality of control, and the extended absence of any
opportunity for happiness or joy.” Id.
34
Wilkinson, 545 U.S. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 483-85 (1995)).

Liman Solitary Confinement Statement, June 15, 2012 revised 2

9

Supermax.35 Further, the lower courts had concluded that the procedural protections provided by
Ohio were insufficient and that additional procedures were required.36
The Supreme Court, however, cut back on the lower courts’ imposition of more
procedural requirements and accepted Ohio’s minimal process. All that was required was notice
of “a brief summary of the factual basis for the classification,” and “a rebuttal opportunity” at the
two levels of internal review.37 Detained prisoners could not present adverse witnesses.38 The
obligation for a short statement of reasons for confinement was, according to the Court, enough
to buffer against “arbitrary decision-making.”39
Further, while the question posed for the Supreme Court was not the constitutionality of
Supermax under the Eighth Amendment but rather the processes used to place prisoners there,
the Court appeared to endorse at least some forms of Supermax confinement. The opinion
advised that the “harsh conditions [of Supermax] may well be necessary and appropriate in light
of the danger that high-risk inmates pose both to prison officials and to other prisoners.”40 Thus,
“[p]rolonged confinement in Supermax may be the State’s only option for the control of some
inmates.”41
Since Wilkinson, courts have rejected a variety of claims seeking remedies for prisoners’
prolonged isolation.42 Only a few forms of solitary confinement have been found actionable,
such as “28 to 35 year confinements” in lockdown in the Louisiana State Penitentiary in
Angola.43 In addition, courts have found that such confinement is impermissible for the mentally
ill.44
                                                            
35

Austin v. Wilkinson, 204 F. Supp. 2d 1024, 1028 (N.D. Ohio 2002).
Austin v. Wilkinson, 372 F.3d 346, 360-61 (6th Cir. 2004); Austin v. Wilkinson, 189 F. Supp. 2d 719,
743-46 (N.D. Ohio 2002).
37
Wilkinson, 545 U.S. at 226.
38
Id. at 228.
39
Id. at 226.
40
Id. at 224.
41
Id. at 229.
42
See, e.g., Estate of DiMarco v. Wyo. Dept. of Corrections, 473 F.3d 1334, 1336 (10th Cir. 2007); AlAmin v. Donald, 165 Fed.Appx. 733, 738 (11th Cir. 2006); Skinner v. Cunningham, 430 F.3d 483, 485 (1st Cir.
2005); Hill v. Pugh, 75 Fed. Appx. 715, 721 (10th Cir. 2003).
43
Wilkerson v. Stalder, No. 00-304-C, 2007 WL 2693852, at *1 (M.D. La. Sept. 11, 2007); see also
Scarver v. Litscher, 434 F.3d 972, 974 (7th Cir. 2006); Bailey v. Fansler, No. 04- 1175-PHX-MHM, 2009 WL
151204, at *1 (D. Ariz. Jan. 21, 2009); Farmer v. Kavanagh, 494 F. Supp. 2d 345, 347 (D. Md. 2007). Further, in
Westefer v. Snyder, 422 F.3d 570 (7th Cir. 2005), the court noted that placement in Supermax resulted in the almost
complete deprivation of “human contact,” attorneys included. Id. at 589. Given that at least some prisoners
confined to the facility were not given the reasons for their placement, the case survived a motion for summary
judgment. Id. at 590.
44
See, e.g., Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1098 (W.D. Wis. 2001) (“Most inmates have a
difficult time handling these conditions of extreme social isolation and sensory deprivation, but for seriously
mentally ill inmates, the conditions can be devastating.”); Ruiz, 37 F. Supp. 2d at 915 (“Conditions in [the prison’s]
36

Liman Solitary Confinement Statement, June 15, 2012 revised 2

10

We hope that the Supreme Court will revisit the constitutionality of long-term isolation in
light of its more recent law on conditions of confinement. In 2011, Brown v. Plata upheld a
three-judge district court’s conclusion that it had the authority to remedy the unconstitutional
conditions in California’s prisons.45 The Court explained that all “[p]risoners retain the essence
of human dignity inherent in all persons” and that “[r]espect for that dignity animates the Eighth
Amendment prohibition against cruel and unusual punishment.”46
The research cited underscores the harms that long-term isolation imposes on individual
personhood and its assault on human dignity. Our hope is that Plata indicates that, when a full
record of the effects of Supermax is before it, the Supreme Court will recognize that long-term
solitary confinement is at odds with the prohibition on cruel and unusual punishment as well as
the values of individual dignity and liberty protected by the U.S. Constitution.

III.

A Growing Commitment to End Extreme Isolation

A. Reforms in the States
Many directors of state correction systems are at the forefront of reforms limiting
prolonged solitary confinement. Recognizing the serious impact of long-term social and sensory
deprivation on prisoners, families, communities, and state budgets, these states—Maine,
Mississippi, New York, Colorado, Illinois, New Mexico, and Texas—have all changed their
policies.
In 2010, the Maine Legislature required the Department of Corrections to review its use
of solitary confinement and report its findings back to the Legislature. The report, issued in
March 2011, called for improvements in mental health care and alternatives aimed at “behavioral
intervention” in the general prison population.47 Since then, Commissioner Joseph Ponte
instituted a series of reforms in the Maine State Prison’s Supermax unit.
•
•
•

The unit’s population was cut by more than half;
“Cell extractions”—or the forcible removal of prisoners from cells—were discontinued;
A prisoner could not be placed in the Supermax unit for longer than 72 hours without
personal approval by the Commissioner;

                                                                                                                                                                                                
administrative segregation units clearly violate constitutional standards when imposed on the subgroup of the
plaintiffs' class made up of mentally-ill prisoners.”).
45
131 S. Ct. 1910 (2011).
46
Id. at 1928.
47
Final Report of Review of Due Process Procedures in Special Management Units at the Maine State
Prison and the Maine Correctional Center (Mar. 2011), http://www.aclu.org/files/assets/maine__final_doc_report_on_smus.pdf.

Liman Solitary Confinement Statement, June 15, 2012 revised 2

11

•

A committee composed of corrections officials and members of the public was appointed
to continue review and reforms.48

According to Commissioner Ponte, these reforms did not require substantial new funds.49
Mississippi has also changed the manner in which it uses long-term isolation. Between
2007 and 2009, the Mississippi Department of Corrections (MDOC) reduced the population in its
Supermax facility (known as “Unit 32”) from approximately 1000 to less than 100.50 The
MDOC revised classification criteria so that prisoners eligible for confinement at Unit 32 were
those who had committed serious violent acts while incarcerated or had attempted escape.51
Individual management plans were mandated for each prisoner, so that they had concrete goals
on how to earn their way out of Unit 32.52 In addition, the MDOC created a “step-down” unit for
prisoners with serious mental illness who had been previously isolated; these prisoners are
housed in a small unit with supervised group and other activities to encourage their transition to
general population.53 In Unit 32, violence by prisoners and the use of force by staff declined.54
In 2010, the MDOC closed Unit 32.55
In 2011 and 2012, other states instituted measures to stem the over-use of solitary
confinement. New York enacted a law making it more difficult to put seriously mentally ill
prisoners in solitary confinement.56 Colorado enacted a law in August 2011 requiring the
Department to provide a report regarding the use of administrative segregation57 and directed

                                                            
48

Lance Tapley, Maine’s Dramatic Reduction of Solitary Confinement, CRIME REPORT (July 21, 2011),
http://www.thecrimereport.org/archive/2011-07-maines-dramatic-reduction-of-solitary-confinement.
49
Lance Tapley, Reform Comes to the Supermax, PORTLAND PHX. (May 25, 2011),
http://portland.thephoenix.com/news/121171-reform-comes-to-the-supermax/.
50
Terry A. Kupers et al., Beyond Supermax Administrative Segregation: Mississippi’s Experience
Rethinking Prison Classification and Creating Alternative Mental Health Programs, 36 CRIM. JUST & BEHAV. 1037,
1046 (2009).
51
Kupers, supra note 45, at 1046.
52
Id. at 1047
53
Id. at 1043.
54
Id. at 6-7.
55
John Buntin, Exodus: How America’s Reddest State – And Its Most Notorious Prison – Became a Model
of Corrections Reform, 23 GOVERNING 20, 27 (2010).
56
2008 N.Y. Sess. Laws 1 (McKinney) (codified as amended primarily at N.Y. CORRECT. LAW § 1, 137,
401, & 401-a and at N.Y. MENTAL HYG. LAW § 45.07 (McKinney 2011) (excluding prisoners who are actively
suicidal or who have Axis I diagnoses, except under “exceptional circumstances,” and mandating at least two hours
of mental health treatment for such prisoners).
57
Colorado Laws 2011, Ch. 289, § 1, eff. July 1, 2011 (codified at C.R.S.A. § 17-1-113.9(1) (requiring
report from CDOC “concerning the status of administrative segregation; reclassification efforts for offenders with
mental illnesses or developmental disabilities, including duration of stay, reason for placement, and number and
percentage discharged”).

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12

that funds be directed to support mental health treatment and alternatives to segregation.58
Colorado’s Department of Corrections thereafter undertook an audit of its use of solitary
confinement and announced in March 2012 that it would close a 312-bed Supermax facility by
early 2013.59 In May 2012, concerned about the economic costs of its Supermax prison, the
Illinois governor announced a proposal to close the facility.60 The New Mexico Legislature
directed a committee to study solitary confinement's impact on inmates, its effectiveness in
“reducing problems,” and its cost.61 Likewise, the Texas Lieutenant Governor commissioned a
study on the use of administrative segregation and its impact on mental health and recidivism, as
well as options for alternative methods of confinement and reentry programming.62
B. American Bar Association Standards on the Treatment of Prisoners
In 2005, the American Bar Association began a project to develop contemporary
standards for prison administration. Participants included a range of institutional actors.63 In
2010, the ABA House of Delegates approved a revised set of Standards on the Treatment of
Prisoners.64
The standards regarding solitary confinement center around a core ideal: “Segregated
housing should be for the briefest term and under the least restrictive conditions practicable and
                                                            
58

Colorado Laws 2011, Ch. 289, § 1, eff. July 1, 2011 (codified at C.R.S.A. § 17-1-113.9(2)) (directing
funds made available from savings due to new earned time law be used “to support behavior-modification programs,
incentive programs, mental health services or programs, or similar efforts designed as viable alternatives to
administrative segregation additional funding for treatment and alternative placements for mentally ill prisoners in
solitary confinement.”).
59
Kristen Wyatt, Colorado Closing Canon City Prison, Colorado Springs Gazette (Mar. 19, 2012)
http://www.gazette.com/news/colorado-135471-denver-prison.html.
60
Steve Mills, Quinn’s Prison Plan Causes Stir, CHI. TRIBUNE (Feb. 23, 2012),
http://www.chicagotribune.com/news/local/ct-met-illinois-state-budget-prisons-20120223,0,3394133.story.
61
New Mexico House of Representatives, “A memorial requesting the appropriate legislative interim
committee to convene a working group to gather information regarding the use of solitary confinement in New
Mexico public and private correctional facilities, to determine the impact of solitary confinement on inmates and to
assess the effectiveness of solitary confinement in reducing problems and costs.”
www.nmlegis.gov/sessions/11%20regular/final/HM062.pdf (2001).
62
Press Release, Office of the Lieutenant Governor, Lt. Governor Dewhurst Issues Select Interim Charges
Relating to Transportation, Homeland Security and Criminal Justice (Jan. 13, 2012),
http://www.ltgov.state.tx.us/prview.php?id=337.
63
“Based on constitutional and statutory law, a variety of relevant correctional policies and professional
standards, the deep expertise of the many people who assisted with the drafting, and the extensive contributions and
comments of dozens of additional experts and groups, they set out principles and functional parameters to guide the
operation of American jails and prisons, in order to help the nation’s criminal justice policy-makers, correctional
administrators, legislators, judges, and advocates protect prisoner’s rights while promoting the safety, humaneness,
and effectiveness of our correctional facilities.” AM. BAR ASS’N, ABA STANDARDS FOR CRIMINAL JUSTICE: TREATMENT OF
PRISONERS intro. (3d ed. 2011) [hereinafter ABA STANDARDS].
64

ABA Adopts Host of Criminal Justice Measures, ABA JOURNAL (Feb. 8, 2010),

http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_treatmentprisoners.html.

Liman Solitary Confinement Statement, June 15, 2012 revised 2

13

consistent with the rationale for placement and with the progress achieved by the prisoner.”65
Appendix B sets forth ABA Standards on solitary confinement.
C. International Legal Norms
The reforms in several states and the ABA Standards reflect a growing consensus on the
treatment of prisoners that is shared internationally. The United States is a signatory to a number
of international human rights agreements that govern the treatment of prisoners and “mandate
that prisoners be treated with humanity and respect for the inherent dignity of the human
person.”66 Those principles have been interpreted to limit the use of solitary confinement.67 In
2011, the United Nations’ Special Rapporteur on Torture and Other Cruel, Inhuman, or
Degrading Treatment exhorted all countries to “re-evaluate and minimize” and to abolish
completely its use for juveniles and prisoners with mental illness.68 Based on existing research,
the Special Rapporteur concluded that fifteen days is the maximum period prisoners can spend in
solitary confinement without suffering permanent mental harm.69 The Special Rapporteur
                                                            
65

ABA STANDARDS 23-2.6(a).
International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999
U.N.T.S. 171 (ratified in 1992) (prohibiting “cruel, inhuman, or degrading treatment or punishment” and requiring
that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of
the human person.”); see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted Dec. 10, 1984, 108 Stat. 382, 463-64, 1465 U.N.T.S. 85 (ratified in 1992) (prohibiting torture,
defined as “[a]n act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as . . . punishing him for an act he . . . committed or is suspected of having committed or
intimidating or coercing him . . . when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.”); Universal Declaration of
Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (“[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.”).
67
See, e.g., UN General Assembly, Torture and other cruel, inhuman or degrading treatment or
punishment: note by the Secretary-General, 28 July 2008, A/63/175 pp. 18-20, available at:
http://www.unhcr.org/refworld/docid/48db99e82.html (interim report of U.N. Special Rapporteur Manfred Nowak
criticizing use of solitary confinement); Comm. Against Torture, Report of the Committee Against Torture, 73, U.N.
Doc. A/61/44 (Nov. 14–15, 2005; May 1–19, 2006) (questioning the United States about its supermax practice and
its effects on prisoners’ mental health); Comm. Against Torture, Report of the Committee Against Torture, 32, U.N.
Doc. A/55/44 (Nov. 8-19, 1999; May 1–19, 2000) (expressing concern about the United States’ “excessively harsh
regime of the ‘supermaximum’ prisons”); see also Standard Minimum Rules for the Treatment of Prisoners, R. 57,
E.S.C. Res. 663C, U.N. Doc. E/3048 (Aug. 30, 1955) amended by E.S.C. Res. 2076, U.N. Doc. E/5988 (May 13,
1977) (“Imprisonment and other measures which result in cutting off an offender from the outside world are
afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty.
Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline,
aggravate the suffering inherent in such a situation.”); ISTANBUL STATEMENT ON THE USE AND EFFECTS OF
SOLITARY CONFINEMENT, reproduced in 18 Torture 56 (2008) (statement by international group of experts in law,
medicine, and criminology).
68
U.N Special Rapporteur on Torture, Interim Report of the Special Rapporteur of the Human Rights
Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2, ¶ 31, ¶ 81, U.N Doc.
A/66/268 (Aug. 5, 2011) (citations omitted).
69
Id.
66

Liman Solitary Confinement Statement, June 15, 2012 revised 2

14

observed that “[c]onsidering the severe mental pain or suffering solitary confinement may cause
when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for
juveniles or persons with mental disabilities, it can amount to torture or cruel, inhuman or
degrading treatment or punishment.”70

Conclusion
We applaud this Committee for putting on the agenda the need to rethink the role of
extreme isolation in American criminal justice system. Detention in democratic orders requires
respect for the individual dignity and for the worth of all persons.
This understanding of American obligations is longstanding. As Arthur Liman explained
in 1971:
[N]o excuse can justify the failure of the American public to demand a better
system of criminal justice, from arrest, trial and sentencing to ultimate release
from confinement. . . .
The larger obligation to continue the search for a better and a more humane
system of criminal justice, from arrest to release after imprisonment, requires the
alert attention of every thinking citizen. . . .
Change should not be lightly undertaken, but the status quo can no longer be
defended. The only way to salvage meaning out of the otherwise senseless
killings at Attica is to learn from this experience that our Atticas are failures. The
crucial issues remain unresolved; and they will continue unresolved until an
aroused public demands something better.71
More than forty years later, the human suffering described in Wilkinson, documented by social
scientists, and experienced by tens of thousands of incarcerated Americans, “demands something
better.”
Respectfully submitted,

Hope Metcalf

Judith Resnik

*Prepared with the assistance of Brian Holbrook (YLS 2012), Brandon Trice (YLS 2012), and
Eva Yinan Song (Yale College 2014).
                                                            
70

Id.
ATTICA: THE OFFICIAL REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON ATTICA xi (Bantam
Books, 1972).
71

Liman Solitary Confinement Statement, June 15, 2012 revised 2

15

2010]

AND
COURTS
DETENTION AND
THE FEDERAL
COURTS
Appendix
A

643

States with Supermax Facilities, 1997-1998
1997-1998

Supermu
Supermax Beds

Seatenced
Sentenced
Prison Pop.

Incarceration
Incarceration Rate
per 100,000

Percaatof
Percent
of
Total Beds

Northeast
Northeast
Connecticut
Connecticut
Maine
Massachusetts
Jersey
New Jersey
NewYorl<
New
York
Pennsylvania
Rhode Island

3.214
586
586
100
124
96
2,000
200
108

163.836
163,836
13,005
13.005
1,542
1,542
10,847
10,847
28,361
70,026
70.026
34,963
34.963
2,100

397
123
123
278
278
351
386
386
291
213
213

1.0
2.0
4.5
4.5
6.5
1.1
1.1
0.3
2.9
0.6
5.3
'.1

Midwest
Illinois
Indiana
Michigan
Minnesota
Minnesota
Nebraska
Nebmska
Ohio
Wisconsin

2.290
500
500
85
421
120
164
500
500
500
500

216,391
216.391
40,788
40.788
17,730
17.730
44,771
44,771
5,306
5,306
3,329
3,329
48,002
14,682
14,682

342
301
457
I13
113
200
200
429
429
283
283

1.2
1.2
0.5
0.9
2.3
4.9
4.9
1.0
1.0
3.4
3.4

South
Florida
Georgia
Louisiana
Louisiana
Maryland
Mississippi
North Carolina
Oklahoma
South Carolina
Texas
Virginia
Virginia
West Virginia

7.584
1,000
1,000
10
1,048
1,048
286
1,756
1,756
300
392
200
1,229
1,229
1,267
1,267
96

480,061
480.061
64,540
35,722
29,265
21,088
14,548
14.548
27,726
20,542
20,264
140,729
140,729
27.524
27,524
3,160
3,160

437
437
472
472
672
672
413
413
531
531
370
370
617
617
536
536
717
717
407
174
174

1.5
1.5
0.3
3.6
3.6
1.4
1.4
12.0
12.0
1.1
1.1
1.9
1.9
3.0
1.0
0.9
4.6
4.6
3.0
3.0

West
Arizona
California
Colorado
Idaho
Montana
Navada
Nevada
Oregon
Washington
Wyoming
Wyoming

6.542

242,315
142.3/5

1,728
1,728
2,942
2.942
750
750
96
64
430
196
196
300
36

22,353
154,368
154.368
13,461
13,461
3,946
2,242
8,884
8,884
7,589
7,589
13,198
1,566
1.566

484
475
342
342
323
25
25
518
518
232
232
233
326
326

2.7
2.7
7.7
1.9
1.9
5.6
5.6
2.4
2.4
2.9
2.9
4.8
2.6
2.3
2.3

19,630
19,630

1,102,603

All states
All

1.1
1.1

1.6
/.6

1.8
1.8

Sources: King 1999, updating
Riveland 1999b.
1999b.
Sources:
updating figures from Rivcland

Effectiveness of Supermax Prisons 74 app.
Evaluating the Effectiveness
Table 11 from Daniel P. Mears, Evaluating
tbl.l
published as Table 1I in Roy D. King, The Rise and Rise of
of
tbl.1 (2006),
(2006), originally published
Supermax: An American
American Solution in Search
Search of a Problem?, 1 Punishment &
Supermax:
& Soc'y 163,
163,
175 tbl.l
(1999), reproduced
reproduced with the permission
permission of Professors Mears and King.
tbl.1 (1999),

FIGURE
Reproduced in Judith Resnik, Detention, The War on FIGURE
Terror,8
and the Federal Courts, 110 COLUM. L. REV. 579, 643 (2010).

HeinOnline -- 110 Colum. L. Rev. 643 2010

APPENDIX B
ABA Standards for Criminal Justice (Third Edition), Treatment of Prisoners (2010)72
Standard 23-2.6 Rationales for segregated housing
(a) Correctional authorities should not place prisoners in segregated housing except for reasons
relating to: discipline, security, ongoing investigation of misconduct or crime, protection from
harm, medical care, or mental health care. Segregated housing should be for the briefest term and
under the least restrictive conditions practicable and consistent with the rationale for placement
and with the progress achieved by the prisoner. Segregation for health care needs should be in a
location separate from disciplinary and long-term segregated housing. Policies relating to
segregation for whatever reason should take account of the special developmental needs of
prisoners under the age of eighteen.
(b) If necessary for an investigation or the reasonable needs of law enforcement or prosecuting
authorities, correctional authorities should be permitted to confine a prisoner under investigation
for possible criminal violations in segregated housing for a period no more than [30 days].
Standard 23-2.7 Rationales for long-term segregated housing
(a) Correctional authorities should use long-term segregated housing sparingly and should not
place or retain prisoners in such housing except for reasons relating to:
(i) discipline after a finding that the prisoner has committed a very severe disciplinary
infraction, in which safety or security was seriously threatened;
(ii) a credible continuing and serious threat to the security of others or to the prisoner’s
own safety; or
(iii) prevention of airborne contagion.
(b) Correctional authorities should not place a prisoner in long-term segregated housing based
on the security risk the prisoner poses to others unless less restrictive alternatives are
unsuitable in light of a continuing and serious threat to the security of the facility, staff, other
prisoners, or the public as a result of the prisoner’s:
(i) history of serious violent behavior in correctional facilities;
(ii) acts such as escapes or attempted escapes from secure correctional settings;
(iii) acts or threats of violence likely to destabilize the institutional environment to such a
degree that the order and security of the facility is threatened;
(iv) membership in a security threat group accompanied by a finding based on specific
and reliable information that the prisoner either has engaged in dangerous or threatening
                                                            
72

The full text of the ABA Standards is published at
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_midy
ear2010_102i.authcheckdam.pdf

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behavior directed by the group or directs the dangerous or threatening behavior of others;
or
(v) incitement or threats to incite group disturbances in a correctional facility.
Standard 23-2.8 Segregated housing and mental health
(a) No prisoner diagnosed with serious mental illness should be placed in long-term segregated
housing.
(b) No prisoner should be placed in segregated housing for more than [1 day] without a mental
health screening, conducted in person by a qualified mental health professional, and a prompt
comprehensive mental health assessment if clinically indicated. If the assessment indicates the
presence of a serious mental illness, or a history of serious mental illness and decompensation in
segregated settings, the prisoner should be placed in an environment where appropriate treatment
can occur. Any prisoner in segregated housing who develops serious mental illness should be
placed in an environment where appropriate treatment can occur.
(c) The mental health of prisoners in long-term segregated housing should be monitored as
follows:
(i) Daily, correctional staff should maintain a log documenting prisoners’ behavior.
(ii) Several times each week, a qualified mental health professional should observe each
segregated housing unit, speaking to unit staff, reviewing the prisoner log, and observing
and talking with prisoners who are receiving mental health treatment.
(iii) Weekly, a qualified mental health professional should observe and seek to talk with
each prisoner.
(iv) Monthly, and more frequently if clinically indicated, a qualified mental health
professional should see and treat each prisoner who is receiving mental health treatment.
Absent an individualized finding that security would be compromised, such treatment
should take place out of cell, in a setting in which security staff cannot overhear the
conversation.
(v) At least every [90 days], a qualified mental health professional should perform a
comprehensive mental health assessment of each prisoner in segregated housing unless a
qualified mental health professional deems such assessment unnecessary in light of
observations made pursuant to subdivisions (ii)-(iv).
Standard 23-2.9 Procedures for placement and retention in long-term segregated housing
(a) A prisoner should be placed or retained in long-term segregated housing only after an
individualized determination, by a preponderance of the evidence, that the substantive
prerequisites set out in Standards 23-2.7 and 23-5.5 for such placement are met. In addition, if
long-term segregation is being considered either because the prisoner poses a credible continuing

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and serious threat to the security of others or to the prisoner’s own safety, the prisoner should be
afforded, at a minimum, the following procedural protections:
(i) timely, written, and effective notice that such a placement is being considered, the
facts upon which consideration is based, and the prisoner’s rights under this Standard;
(ii) decision-making by a specialized classification committee that includes a qualified
mental health care professional;
(iii) a hearing at which the prisoner may be heard in person and, absent an individualized
determination of good cause, has a reasonable opportunity to present available witnesses
and information;
(iv) absent an individualized determination of good cause, opportunity for the prisoner to
confront and cross-examine any witnesses or, if good cause to limit such confrontation is
found, to propound questions to be relayed to the witnesses;
(v) an interpreter, if necessary for the prisoner to understand or participate in the
proceedings;
(vi) if the classification committee determines that a prisoner is unable to prepare and
present evidence and arguments effectively on his or her own behalf, counsel or some
other appropriate advocate for the prisoner;
(vii) an independent determination by the classification committee of the reliability and
credibility of confidential informants if material allowing such determination is available
to the correctional agency;
(viii) a written statement setting forth the evidence relied on and the reasons for
placement; and
(ix) prompt review of the classification committee’s decision by correctional
administrators.
(b) Within [30 days] of a prisoner’s placement in long-term segregated housing based on a
finding that the prisoner presents a continuing and serious threat to the security of others,
correctional authorities should develop an individualized plan for the prisoner. The plan should
include an assessment of the prisoner’s needs, a strategy for correctional authorities to assist the
prisoner in meeting those needs, and a statement of the expectations for the prisoner to progress
toward fewer restrictions and lower levels of custody based on the prisoner’s behavior.
Correctional authorities should provide the plan or a summary of it to the prisoner, and explain it,
so that the prisoner can understand such expectations.
(c) At intervals not to exceed [30 days], correctional authorities should conduct and document an
evaluation of each prisoner’s progress under the individualized plan required by subdivision (b)
of this Standard. The evaluation should also consider the state of the prisoner’s mental health;

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address the extent to which the individual’s behavior, measured against the plan, justifies the
need to maintain, increase, or decrease the level of controls and restrictions in place at the time
of the evaluation; and recommend a full classification review as described in subdivision (d) of
this Standard when appropriate.
(d) At intervals not to exceed [90 days], a full classification review involving a meeting of the
prisoner and the specialized classification committee should occur to determine whether the
prisoner’s progress toward compliance with the individual plan required by subdivision (b) of
this Standard or other circumstances warrant a reduction of restrictions, increased programming,
or a return to a lower level of custody. If a prisoner has met the terms of the individual plan,
there should be a presumption in favor of releasing the prisoner from segregated housing. A
decision to retain a prisoner in segregated housing following consideration by the classification
review committee should be reviewed by a correctional administrator, and approved, rejected, or
modified as appropriate.
(e) Consistent with such confidentiality as is required to prevent a significant risk of harm to
other persons, a prisoner being evaluated for placement in long-term segregated housing for any
reason should be permitted reasonable access to materials considered at both the initial and the
periodic reviews, and should be allowed to meet with and submit written statements to persons
reviewing the prisoner’s classification.
(f) Correctional officials should implement a system to facilitate the return to lower levels of
custody of prisoners housed in long-term segregated housing. Except in compelling
circumstances, a prisoner serving a sentence who would otherwise be released directly to the
community from long-term segregated housing should be placed in a less restrictive setting for
the final months of confinement.

Standard 23-3.8 Segregated housing
(a) Correctional authorities should be permitted to physically separate prisoners in segregated
housing from other prisoners but should not deprive them of those items or services necessary
for the maintenance of psychological and physical wellbeing.
(b) Conditions of extreme isolation should not be allowed regardless of the reasons for a
prisoner’s separation from the general population. Conditions of extreme isolation generally
include a combination of sensory deprivation, lack of contact with other persons, enforced
idleness, minimal out-of-cell time, and lack of outdoor recreation.
(c) All prisoners placed in segregated housing should be provided with meaningful forms of
mental, physical, and social stimulation. Depending upon individual assessments of risks, needs,
and the reasons for placement in the segregated setting, those forms of stimulation should
include:
(i) in-cell programming, which should be developed for prisoners who are not permitted
to leave their cells;

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(ii) additional out-of-cell time, taking into account the size of the prisoner’s cell and the
length of time the prisoner has been housed in this setting;
(iii) opportunities to exercise in the presence of other prisoners, although, if necessary,
separated by security barriers;
(iv) daily face-to-face interaction with both uniformed and civilian staff; and
(v) access to radio or television for programming or mental stimulation, although such
access should not substitute for human contact described in subdivisions (i) to (iv).
(d) Prisoners placed in segregated housing for reasons other than discipline should be allowed as
much out-of-cell time and programming participation as practicable, consistent with security.
(e) No cell used to house prisoners in segregated housing should be smaller than 80 square feet,
and cells should be designed to permit prisoners assigned to them to converse with and be
observed by staff. Physical features that facilitate suicide attempts should be eliminated in all
segregation cells. Except if required for security or safety reasons for a particular prisoner,
segregation cells should be equipped in compliance with Standard 23-3.3(b).
(f) Correctional staff should monitor and assess any health or safety concerns related to the
refusal of a prisoner in segregated housing to eat or drink, or to participate in programming,
recreation, or out-of-cell activity.

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