NEW YORK

CITY BAR

SUPERMAX CONFINEMENT IN U.S. PRISONS

Committee on
International Human Rights

SEPTEMBER 2011

NEW YORK CITY BAR ASSOCIATION
42 WEST 44 TH STREET, NEW YORK, NY 10036

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

Supermax Confinement in U.S. Prisons
By The Committee on International Human Rights

I.

Introduction
During the past three decades, "supermax" confinement has become a

widespread and integral element of prison administration in the United States. 1 As
many as 80,000 prisoners are held in supermax facilities or in isolation units within
prisons. These prisoners endure conditions of extreme sensory deprivation for
months or years on end, an excruciating experience in which the prisoner remains
isolated from any meaningful human contact. Access to a telephone, books,
magazines, radio, television, even sunlight and outside air may be denied or severely
restricted. 2

The term "supermax" is used to describe "the new, specialized segregation
facilities." Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with
Mental Illness 146 (2003). In supermax, "[p]risoners typically spend their waking
and sleeping hours locked alone in small, sometimes windowless cells, some of
which are sealed with solid steel doors. They are fed in their cells, their food passed
to them on trays through a slot in the door. Between two and five times a week,
they are let out of their cells for showers and solitary exercise in a small enclosed
space. Most have little or no access to education, recreational, or vocational
activities or other sources of mental stimulation." [d.
1

Two Supreme Court justices, in describing a supermax prison that denied inmates
any reading material, described supermax as "perilously close to a state-sponsored
effort at mind control." Beard v. Banks, 548 U.S. 521, 552 (2006) (Stevens, J., and
Ginsburg, J., dissenting) (dissenting from a ruling in which the Court held that
inmates can be deprived of reading material while in supermax confinement
without running afoul of the First Amendment).
2

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The policy of supermax confinement, on the scale which it is currently being
implemented in the United States, violates basic human rights. We believe that in
many cases supermax confinement constitutes torture under international law
according to international jurisprudence 3 and cruel and unusual punishment under
the U.S. Constitution. The time has come to critically review and reform the
widespread practice of supermax confinement.
This Report first describes supermax confinement in the United States, then
surveys the surprisingly limited role of courts in reviewing that practice and
concludes with a number of recommendations that suggest the outlines of the
reforms we believe are needed. These reforms should encompass not just the
administration of supermax confinement in state and federal prisons, but also the
legal framework within which this practice is reviewed by courts.
Courts in recent years have largely deferred to prison administrators with
regard to the implementation and expansion of supermax confinement, stretching
the limits of constitutionality so that supermax is largely immunized from judicial
review. Indeed, as long as a prisoner receives adequate food and shelter, the
extreme sensory deprivation that characterizes supermax confinement will, under
current case law, almost always be considered within the bounds of permissible
treatment.
See, e.g., Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. Pa.
J. Const. Law 115,130-31 (2008) ("Supermaximum security prisons that place
inmates in solitary confinement for long periods of time without providing
meaningful review of their situations ... violate international human rights law
according to the jurisprudence of the European Court, the Inter-American Court and
Commission, and the U.N. Human Rights Committee and Committee Against
Torture.").
3

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Although supermax confinement does not produce visible scars or bruises,
its impact on prisoners can be comparable to physical torture. As Senator John
McCain, who experienced five years of solitary confinement as a prisoner of war,
wrote, U[i]t's an awful thing, solitary. It crushes your spirit and weakens your
resistance more effectively than any other form of mistreatment." 4 Numerous
studies confirm the psychological damage caused by supermax confinement, and the
adverse effects are especially pronounced for mentally ill prisoners. s As two leading
medical authorities recently wrote, umust about everyone who has taken a serious
look a long-term isolated confinement (as in supermaximum security or long-term
administrative segregation) has concluded there is serious harm from long-term
isolated confinement." 6
The inhumane conditions of supermax are well documented by numerous
federal court decisions, blue ribbon commissions, journalists and the media. 7 One
district judge observed the following about inmates in supennax confinement:

4

John McCain, Faith of My Fathers 206 (Random House, 1999).

e.g., Jeffrey L. Metzner and Jamie Fellner, Solitary Confinement and Mental
lIlness in u.s. Prisons: A Challenge for Medical Ethics, J. Am. Acad. Psychiatry Law:
104-08 (2010) ("The adverse effects of solitary confinement are especially
significant for persons with serious mental illness").
S See,

Stuart Grassian and Terry Kupers, The Colorado Study vs. the Reality ofSupermax
Confinement, Correctional Mental Health Report, Vol. 13, No.1 (May/June 2011), at
1,9. But see Jeffrey L. Metzner and Maureen L. O'Keefe, Psychological Effects of
Administrative Segregation: The Colorado Study, Correctional Mental Health Report,
Vol. 13, No.1 (May/June 2011), at 1-2,12-14 (one-year study at Colorado State
Penitentiary of psychological effects of administrative segregation concluding that
supermax confinement may not cause deterioration of mental health).
6

7Peter Yost's powerful 2010 documentary Solitary Confinement, which estimates
that 80,000 persons are held in solitary confinement in the United States, provides a
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[Inmates] can go weeks, months or potentially years with little or no opportunity
for normal social contact with other people .... [They] remain confined to their
cells for 22 and 112 hours of each day. Food trays are passed through a narrow
food port in the cell door. Inmates eat all meals in their cells. Opportunities for
social interaction with other prisoners or vocational staff are essentially precluded
.... [S]ome inmates spend the time simply pacing around the edges of the pen;
the image created is hauntingly similar to that of caged felines pacing in a zoo. 8
The overriding rationale for supermax confinement is to impose order
and maintain safety in the prison environment. 9 Other related factors
for the spread of supermax confinement are the need to manage gang activity and
reduce violence against prison staff and inmates. The use of supermax became
more prevalent because of its perceived effectiveness in achieving these goals. See
Mears and Watson, infra note 28, at 232-34.
The unmitigated suffering caused by supermax confinement, however,
cannot be justified by the argument that it is an effective means to deal with difficult
prisoners. 1o The issue, we believe, is not whether supermax achieves its purposes

harrowing portrayal of inmates subjected to long-term solitary confinement at
Colorado State Penitentiary. In addition, Internet sites such as
www.solitarywatch.com and www.supermaxed.com provide coverage.
8

Madrid v. Gomez, 889 F. Supp. 1146, 1129 (N.D. Cal. 1995).

See Wilkinson v. Austin, 545 U.S. 209,229 (2005) ("Prolonged confinement in
Supermax may be the State's only option for the control of some inmates").

9

10 In July 2011, hundreds of prisoners held in the Security Housing Unit at Pelican
Bay State Prison in California went on a hunger strike to protest conditions,
including "prolonged solitary confinement in small windowless concrete boxes with
little to no human interaction and other severe physical deprivations." Press
Release, ACLU, ACLU of California Statement on California Prison Hunger
StrikeOuly 19, 2011), available at http://www.aclu.org/prisoners-rights/aclucalifornia-statement-california-prison-hunger-strike.
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or is effective at controlling and punishing unruly inmates. l l Instead, the question
is whether the vast archipelago of American supermax facilities, in which some
prisoners are kept isolated indefinitely for years, should be tolerated as consistent
with fundamental principles of justice. Even prisoners who have committed
horrific crimes and atrocities possess basic rights to humane treatment under
national and international law. Although the Constitution "does not mandate
comfortable prisons,"12 it does require humane prisons that comport with the
Eighth Amendment's prohibition against punishments that are "incompatible with
'the evolving standards of decency that mark the progress of a maturing society" or
which "involve the unnecessary and wanton infliction ofpain."13 More recently, the
Supreme Court stated that "[p]risoners retain the essence of human dignity inherent
in all persons. Respect for that dignity animates the Eighth Amendment prohibition
against cruel and unusual punishment."14 Supermax confinement as extensively
implemented in the United States falls short of this standard and must be
substantially reformed.

II.

THE EXPANSION OF SUPERMAX CONFINEMENT
A.

Nineteenth Century Practice

11 It is far from clear that that supermax confinement reduces incidents of violence.
See Atul Gawande, Hellhole, The New Yorker, 36, 41 (Mar. 30, 2009) (discussing
2003 study finding that after opening of supermax prisons in Arizona, Illinois and
Minnesota "levels of inmate-on-inmate violence were unchanged").
12 Rhodes v. Chapman, 452 U.S. 337, 349 (1981).

13 Estelle v. Gamble, 429 U.S. 97 (1976).
14 Brown v. Plata, 131 S. Ct. 1910, 1928 (2011).

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The resurgence of supermax confinement in the last three decades arose a
century after the practice had been largely abandoned as inhumane and cruel. In
the early nineteenth century, prison reformers viewed solitary as an effective
method of compelling prisoners to achieve penitence. After observing the practice,
however, many early observers condemned it. Alexis de Tocqueville reported that
solitary confinement as practiced in New York in the 1820's "proved fatal for the
majority of prisoners. It devours the victims incessantly and unmercifully, it does
not reform, it kills."lS Charles Dickens also observed a solitary confinement prison in
1842 in Pennsylvania and wrote that "there is a depth ofterrible endurance in it
which none but the sufferers themselves can fathom ... this slow and daily
tampering with the mysteries of the brain [is] immeasurably worse than any torture
of the body." 16
The U.S. Supreme Court, in a late nineteenth century case, was repelled by
the practice. In In re Medley a prisoner on death row at Walnut Street Penitentiary
in Philadelphia brought a habeas corpus petition challenging a state law requiring
that he be kept "in solitary confinement until the infliction ofthe death penalty."17
Noting that it required "the complete isolation ofthe prisoner from all human
society, and his confinement in a cell of considerable size, so arranged that he had

1SCraig Haney and Mona Lynch, Regulating Prisons of the Future: A Psychological
Analysis ofSupermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477,
483 (1997).
l6Lobel, supra note 2, at 118 (quoting Charles Dickens, American Notes 146 (Fromm
Int'l 1985) (1842)).
17 134 U.S. 160, 167 (1890).
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no direct intercourse with or sight of any human being, and no employment or
instruction,"18 the Supreme Court grimly described the effects of solitary
confinement:
A considerable number of the prisoners fell, after even a short confinement, into a
semi-fatuous condition, from which it was next to impossible to arouse them, and
others became violently insane; others, still, committed suicide; while those who
stood the ordeal better were not generally reformed, and in most cases did not
recover sufficient mental activity to be of any subsequent service to the
community. It became evident that some changes must be made in the system[.] 19

B.

The Expansion of Supermax After 1980

The modern period of widespread use of solitary confinement began with the
construction of supermax prisons and long-term isolation units in the 1980's, with
entire prisons, or units within prisons, designed specifically to hold inmates in
conditions of sensory deprivation for extended periods. 2o The first real American
supermax prison of the twentieth century was created in 1983 following a riot at the
federal prison in Marion, Illinois. After two guards were murdered by inmates, the
prison was placed in permanent lockdown for the next twenty-three years. During that
time, the inmates were kept in solitary confinement between twenty-two and twenty-three
hours each day, with no human contact allowed.
Other supermax prisons were constructed as state and federal prison populations
l8Id. at 168.
19Id.
See Human Rights Watch, supra, note 1, at 145 (2003) ("In the last two decades,
... corrections departments have increasingly chosen to segregate or isolate
disruptive, rule-breaking or otherwise dangerous prisoners for prolonged periods.
Many ofthem have been placed in special super-maximum security facilities; others
are confined in segregation unites within regular prisons.").
20

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rapidly expanded. As demonstrated by the Department of Justice's Bureau of Justice
Statistics, the incarceration rate has exploded in the last three decades. In 1980,
there were 139 sentenced inmates incarcerated under state and federal jurisdiction
per 100,000 population. By 1990, that number had more than doubled to 297
inmates per 100,000. By 2000, the number had increased to 478 per 100,000, and
grew again to 502 per 100,000 by 2009. By the end of2009, over 7.2 million people
were on probation, injail or in prison, constituting 3.1 % of all U.S. adult residents (l in
every 32 adults). State and federal prison authorities had jurisdiction over 1,613,740
prisoners at year-end 2009: 1,405,622 under state jurisdiction and 208,118 under federal
jurisdiction. 21
The relentless rise in the prison population over the past thirty years, during
which the United States became the country with the highest rate of incarceration,
created severe conditions of overcrowding and, increasingly, a public health
problem. 22 Faced with unprecedented numbers of inmates, prison administrators
struggled to devise means to control the expanding numbers of inmates. 23

21 These statistics are taken from the Department of Justice's Bureau of Justice
Statistics web site, www.usdoj.gov.
Josiah D. Rich, Sarah E. Wakeman and Samuel L. Dickman, Medicine and the
Epidemic o/Incarceration in the United States, N. Eng!. J. Med. 364: 22 (June 2, 2011).

22

23 See Human Rights Watch, Out of Sight: Super-Maximum Security Confinement in
the United States, A Human Rights Watch Report, vol. 12, no. l(G), Feb. 2000
("Many correction authorities have turned to prolonged supermax confinement in
an effort to increase their control over prisoners."); Haney & Lynch, supra note 15,
at 480 ("In part in response to increasing pressures in badly overcrowded prison
systems and then absence of resources with which to attempt alternative
approached, correctional administrators are turning to aggressive policies of
punitive segregation in hopes of enhancing their control over prisoners.").

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Supermax confinement became one method to address the problems resulting from
this rapid increase in prison population.
There is uncertainty regarding the number of inmates held in long-term
solitary confinement. The DOl's Bureau ofJustice Statistics, which offers a wide
range of numerical measures of prisons and corrections policy, offers no numbers
relating to supermax or long-term solitary confinement.
A commission chaired by former Judge John Gibbons and Nicholas Katzenbach,
former Attorney General ofthe United States estimated that 80,000 persons were
confined in state and federal segregation units. 24 Other estimates ofthe number of
persons held in supermax confinement vary from "tens ofthousands"25 to "at least
twenty-five thousand inmates in isolation in supermax prisons [with] ... fifty to
eighty thousand [] in restrictive segregation units, many of them in isolation."26
Eight states keep between five and eight percent of their prison population in

24 Comm'n on Safety and Abuse in America's Prisons, Vera Institute of Justice,
Confronting Confinement 52-53 (2006).
25 See flyer announcing congressional briefing sponsored by Congressmen John
Conyers, Robert Scott and Cedric Richmond entitled The Abuses a/Solitary
Confinement in the U.s. Criminal justice System, 3:00 p.m., Apr. 6, 2011 ("Each day
tens of thousands of prisoners in the U.s. are held in solitary confinement.").
26 Gawande, supra, note 9, at 42 ("By the end of the nineteen-nineties, some sixty
supermax institutions had opened across the country. And new solitary
confinement units were established within nearly all of our ordinary maximumsecurity prisons.").
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isolation.27 Another researcher found that there were at least 57 supermax prisons
in 40 states housing approximately 20,000 inmates. 28
There is no dispute that large numbers of inmates are being held in solitary
confinement for seemingly indefinite durations. In nearly every state, there are
prisons where supermax excesses are found. In Illinois, 54 prisoners have been held
in continuous solitary confinement for more than 10 years.29 Two inmates have
endured more than 30 years of solitary confinement at Louisiana State Penitentiary.
In New York State, a 2003 report from the Correctional Association found that
nearly 5,000 inmates, 7.6% of the total state inmate population, were held in "highly
restrictive disciplinary lockdown units for 23 to 24 hours per day."30
C.

De Facto Impunity for Supermax

The expansion of supermax confinement practices has been largely
unchecked by the courts, even though courts have detailed the appalling conditions
in supermax facilities. Some courts have made findings that solitary causes mental
illness and have banned the practice for those prisoners. Nevertheless, courts
generally have stopped short of finding the practice of supermax confinement
unconstitutional or illegal, no matter how severe or extreme unless imposed on

27Id.
28 Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 J. Const. Law
115,115 Dec. 2008) (citing Daniel Mears and Jamie Watson, Towards a Fair and
Balanced Assessment o!Supermax Prisons, 23 Just. Q. 232, 232-33 (2006)).

29 David Fathi, Turning the Corner on Solitary Confinement?, Feb. 24,2011, at
www.aclu.org/blog/prisoners-rights.
30 Lockdown New York: Disciplinary Confinement in New York State Prisons, A
Report of the Correctional Association of New York, at 2 (Oct. 2003).
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people with an active psychosis or for whom solitary has been demonstrated to be
an imminent cause of psychosis. However, courts have refused to enjoin the
practice in any other circumstances despite the acute pain caused by it.
Judge Posner of the Seventh Circuit found that it "seems pretty obvious[] 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," and that "there is plenty of medical and psychological literature concerning
the ill effects of solitary confinement." Davenport v. DeRobertis, 844 F.2d 1310,
1313,1316 (7th Cir. 1988).
In Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal. 1995), the Court also found
"[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 .... [There is]
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." Madrid, 889 F.Supp. at 1146.
The deleterious impact of supermax is exacerbated with mentally ill inmates.
According to one of the studies referred to in Madrid, in 40 of 50 inmates studied,
long-term isolation "had either massively exacerbated a previous psychiatric illness
or precipitated psychiatric symptoms associated with [reduced environmental
stimulation] conditions." 889 F. Supp. at 1232. The Court found that "many, if not
most, inmates in the SHU [long-term isolation] experience some degree of
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psychological trauma in reaction to their extreme social isolation and the severely
restricted environmental stimulation in the SHU." 889 F. Supp. at 1235. The
behavior of prisoners subjected to extended solitary confinement also underscores
the effects. In evaluating an extensive evidentiary record of the Texas prison
system, a court described "a world in which smeared feces, self-mutilation, and
incessant babbling and shrieking are almost everyday occurrences." Ruiz v. johnson,
37 F.Supp. 2d 855, 908 (S.D.Tex. 1999).
There are two formidable obstacles to any judicial challenge to supermax
confinement: the "deliberate indifference" standard" and the Prison Litigation
Reform Act of 1995 (PLRA). First, to show an Eighth Amendment violation a
prisoner must show "deliberate indifference." 429 U.S. 97 (1976). See also Wilson v.
Seiter, 501 U.S. 294, 297 (1991) (to prove prison conditions violate Eighth

Amendment must show "deliberate indifference" by prison officials). See also
Farmer v. Brennan, 511 U.S. 825, 837 (1994) ("Eighth Amendment does not outlaw

cruel and unusual 'conditions'; it outlaws cruel and unusual 'punishmentsm).
Requiring that prisoners prove that a prison official "knows of and disregards an
excessive risk to inmate health or safety/' Farmer, 511 U.S. at 837, often constitutes
a difficult barrier. The consequence is that if "the minimal measure of life's
necessities" are provided, Helling v. McKinney, 509 U.S. 25, 36 (1993), which can
mean not much more than food, clothing and shelter, then evidence of psychological
damage is not sufficient.
The deliberate indifference standard, though, is not always insurmountable.
In Hutto v. Finney, 437 U.S. 678, 687 (1978), the Court applied the "deliberate
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indifference" standard to find that Arkansas' practice of solitary confinement
exceeding thirty days violated the Eighth Amendment. The Court found that solitary
confinement "is not necessarily unconstitutional, but it may be depending on the
duration of the confinement and conditions thereof..... A filthy, overcrowded cell
and a diet of 'grue' might be tolerable for a few days and intolerably cruel for weeks
or months."
Second, the Prison Litigation Reform Act of 1995 imposes an additional
obstacle to relief. 18 U.S.c. 2626. Intended to reduce frivolous prisoner litigation,
the PLRA provides that "[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury." 42 U.s.c. §
1997e(e). Courts have interpreted the physical-injury requirement to dismiss
Eighth Amendment claims for money damages even in egregious circumstances. In
Harden-Bey v. Rutter, 524 F.3d 789 (6 th Cir. 2008), for example, the Sixth Circuit
affirmed the dismissal of an Eighth Amendment claim for damages by an inmate
held for more than three years in solitary confinement "because he did not allege a
physical injury," 524 F.3d at 795, but nevertheless reinstated the inmates due
process claim based on his allegation that prison officials had refused to give him a
hearing.
These judicial and legislative barriers to prison litigation are relatively
recent. In earlier cases, the Supreme Court took a more expansive view ofthe scope
of prohibited conduct, and found that the measure of "cruel and unusual
punishments" under the Eighth Amendment should be expected to evolve. In
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Weems v. United States, 217 U.S. 349,378 (1910), for example, the Court found that a

sentence of twelve-years at hard labor for falsifying public records was cruel and
unusual. And in Trop v. Dulles, 356 U.S. 86, 101 (1958), which found that the scope
of Eighth Amendment is ({not static," the Court stated that the phrase ({ cruel and
unusual punishment" should be broadly interpreted:
[T]he basic policy reflected in these words [cruel and unusual punishment] is
firmly established in the Anglo-American tradition of criminal justice. The phrase
in our Constitution was taken directly from the English Declaration of Rights of
1688, and the principle it represents can be traced back to the Magna Carta. The
basic concept underlying the Eighth Amendment is nothing less than the dignity
of man. While the State has the power to punish, the Amendment stands to
assure that this power be exercised within the limits of civilized standards.
365 U.S. at 597-598 (emphasis added).
In Trap, a soldier who deserted from the U.S. Army was stripped of his
citizenship. In finding that "denationalization as a punishment is barred by the Eighth
Amendment," the Court expressly found that an Eighth Amendment violation does not
require physical harm. Denationalization, the Court recognized, involved "no physical
mistreatment, no primitive torture." 356 U.S. at 100. Nevertheless, the punishment
violated the Eighth Amendment because it "strips the citizen of his status in the national
and international community." Id. The Court also based its decision on the "everincreasing fear and distress" suffered by the defendant. Id. at 598-599.
Successful court challenges to supermax confinement have been rare. In
Madrid v. Gomez, where 1,000 to 1,500 prisoners were isolated in windowless cells

for 22 hours each day, and with an extensive evidentiary record ofthe impact of that
isolation on prisoners, the Court found the record sufficient to establish an Eighth
Amendment violation only with regard to mentally ill inmates. Madrid found that

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placing mentally ill prisoners in solitary confinement was "shocking and indecent
[and] simply has no place in civilized society." 889 F. Supp. at 1266. Placing a
mentally ill inmate in solitary confinement, the district court found, "is the mental
equivalent of putting an asthmatic in a place with little air to breathe." 889 F.Supp.
at 1255. The Court also found that the prison authorities displayed "deliberate
indifference" and a "callous lack of concern for the mental health of those inmates
that are particularly at risk in the [isolation unit]." 889 F.Supp. at 1267.
InJones EI v. Berge, 164 F.Supp.2d 1096, 1125 (W.D.Wis. 2001), the district

court described the extreme conditions at the Supermax Correctional Institution in
Wisconsin, which constituted "almost complete isolation and sensory deprivation."
Id. at 1117. The inmates spend "all but four hours a week" confined to a cell; they

experience "almost total idleness"; "[t]he cells are illuminated 24 hours a day"; and
inmates are not allowed to possess "clocks, radios, watches, cassette players or
televisions." Id. at 1098. Finding that "[t]he conditions at Supermax are so severe
and restrictive that they exacerbate the symptoms that mentally ill inmates exhibit,"
the Court granted the plaintiffs' motion for a preliminary injunction and ordered
mentally ill inmates removed from the prison. Id. at 1116.
In Ruiz v. Johnson, 37 F. Supp.2d 855 (S.D.Tex. 1999), the district court
described in vivid detail the conditions of solitary confinement in Texas prisons, and
concluded that the evidence showed that "an incarceration that inflicts daily,
permanently damaging, physical injury and pain is unconstitutional. Such a practice
would be designated as torture." 37 F.Supp.2d 855, 914 (S.D.Tex. 1999). See also
Hi/ao v. Marcos, 103 F.3d 789, 795 (9 th Cir. 1996) (in alien tort claim by victim of

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Ferdinand Marcos, finding that "it seems clear that all ofthe abuses ... including the
eight years during which he was held in solitary or near solitary confinement constituted a single course of conduct of torture").
The district court decisions in Madrid, Jones El and Ruiz represent rare
examples of judicial scrutiny ofthe reality of supermax confinement. In general, the
courts have been unreceptive to supermax cases and have found constitutional
cases involving indefinite 23-hour confinement. See, e.g., Ajaj v. United States, 293
Fed.Appx.575, 582-84 (10 th Cir. 2008) (conditions imposing "lockdown 23 hours per
day in extreme isolation," "indefinite confinement" and "limited ability to exercise
outdoors" did not violate Eighth Amendment); Matthews v. Wiley, 744 F.Supp.2d
1159,1175 (D.Colo. 2010) (prisoner's allegation of "long-term and indefinite
solitary confinement" was "too vague and conclusory;" granting motion to dismiss).
In Beard v. Banks, 548 U.S. 521 (2006), the issue was whether prison
administrators could constitutionally deprive supermax prisoners of all reading
material. Inmates in a Pennsylvania prison were "confined to cells for 23 hours a
day, [with] limited access to the commissary or outside visitors ... may not watch
television or listen to the radio ... [and] no access to newspapers, magazines or
personal photographs." 548 U.S. at 526. The Third Circuit Court of Appeals
reversed the district court's summary judgment for the defendants. The Supreme
Court reversed, and in a 5-3 vote, found that the prison authorities has justified the
policies and that the "incorrigibility of the inmates" necessitated the harsh
conditions. 584 U.S. at 534.
III.

SUPERMAX CONFINEMENT UNDER INTERNATIONAL LAW

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Supermax confinement as practiced in the United States violates wellestablished internationallaw. 31 Article 5 of the Universal Declaration of Human
Rights, adopted in 1948, and considered part of customary international law, states
that "no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment." In addition, the American Declaration ofthe Rights and
Duties of Man states that prisoners have "the right to humane treatment" (Art. XXV)
and the right "to be free from cruel, infamous, or unusual treatment." Article 5 of
the American Convention on Human Rights repeats the prohibition ofiltorture or to
cruel, inhuman or degrading punishment or treatment." In 1955, the United Nations
adopted the Standard Minimum Rules for the Treatment of Prisoners, which
recognizes that solitary confinement should be restricted to extraordinary
circumstances.
The International Covenant on Civil and Political Rights (ICCPR), ratified by
the US in 1992, in Article 7, prohibits "cruel, inhuman, or degrading treatment or
punishment," and Article 10 provides that "all persons deprived of their liberties
shall be treated with humanity and with respect for the inherent dignity of the
human person."

31 The New York City Bar Association has previously concluded that "prolonged
solitary confinement and incommunicado detention" is a violation of Article 7 of the
International Covenant on Civil and Political Rights. See The Committee on
International Human Rights and The Committee on Military Affairs and Justice,
Human Rights Standards Applicable to the United States' Interrogation of Detainees,
59 The Record 183, 220 (2004). See also Human Rights Watch, supra note 1 at 145
n.493 ("Based on visits to a dozen such facilities and extensive other research,
Human Rights Watch has criticized prolonged supermax confinement as ... in
violation of international human rights standards.").

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The Convention Against Torture (CAT), ratified by the US in 1990, defines
torture as:
An 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 or a third person committed or is suspected of having committed or
intimidating or coercing him or a third person ... 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.
In its May 2000 report, the UN Committee against Torture expressed concern
about U[t]he excessively harsh regime of the 'supermaximum' prisons" in the United
States." And in 2008, the UN Special Rapporteur of the Human Rights Council
submitted a report to the UN General Assembly finding that:
In general comment No. 20 (1992), the Human Rights
Committee stated that the use of prolonged solitary
confinement may amount to a breach of article 7 of the
International Covenant on Civil and Political Rights (para.
6). The Committee against Torture has recognized the
harmful physical and mental effects of prolonged solitary
confinement and has expressed concern about its use,
including as a preventive measure during pre-trial
detention, as well as a disciplinary measure.
Except in exceptional circumstances, such as when the
safety of persons or property is involved, the Committee
has recommended that the use of solitary confinement be
abolished, particularly during pre-trial detention, or at least
that it should be strictly and specifically regulated by law
(maximum duration, etc.) and exercised under judicial
supervision. The Committee on the Rights of the Child has
recommended that solitary confinement should not be used
against children. Principle 7 of the Basic Principles for the
Treatment of Prisoners states, "Efforts addressed to the
abolition of solitary confinement as a punishment, or to the
restriction of its use, should be undertaken and
encouraged. "

* * *
The weight of accumulated evidence to date points to the
serious and adverse health effects of the use of solitary
confinement:
from
insomnia
and
confusion
to
hallucinations and mental illness. The key adverse factor
of solitary confinement is that socially and psychologically
meaningful contact is reduced to the absolute minimum, to
a point that is insufficient for most detainees to remain
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mentally well functioning. Moreover, the effects of solitary
confinement on pre-trial detainees may be worse than for
other detainees in isolation, given the perceived
uncertainty of the length of detention and the potential for
its use to extract information or confessions. Pre-trial
detainees in solitary confinement have an increased rate of
suicide and self-mutilation within the first two weeks of
solitary confinement.
In the opinion of the Special Rapporteur, the use of solitary
confinement should be kept to a minimum, used in very
exceptional cases, for as short a time as possible, and only
as a last resort. Regardless of the specific circumstances of
its use, effort is required to raise the level of social
contacts for prisoners: prisoner-prison staff contact,
allowing access to social activities with other prisoners,
allo~ing more visits and providing access to mental health
serVIces.
Torture and other cruel, inhuman or degrading treatment or punishment, U.N. Doc.

A/63/175 (28 July 2008).
The ICCPR and the CAT have had little impact on prisoner litigation in the
United States due to reservations adopted by the US upon ratification of these
treaties. These reservations bind the US to ICCPR Article 7 and to CAT Article 16
only to the extent such practices are also prohibited by the Fifth, Eighth and
Fourteenth Amendments to the US Constitution. The result is that in the litigated
cases, international law has not been an independent factor for U.S. courts.
This too needs to change. The U.S. is bound by customary international law,
including the prohibitions on torture and cruel, inhuman and degrading treatment
of inmates, without reference to any reservations in its ratification of the ICCPR or
the CAT. If courts took cognizance of international law and practice, they would see
that the scale with which supermax confinement is used in the United States is
unmatched and that the practice raises profoundly troubling questions. No other
country uses supermax confinement as broadly and systematically as does the

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United States. 32 In Europe, solitary confinement has rarely been used since a 1982
decision of the European Commission found that "[c]omplete sensory isolation
coupled with total social isolation, can destroy the personality and constitutes a
form of treatment which cannot be justified by the requirements of security or any
other reason." Krocher v. Switzerland, 34 Eur. Comm'n H.R. Dec. & Rep. 24, 53, P 62

(1982). European rules also require that solitary confinement only be used if a
medical officer certifies in writing that the prisoner is sufficiently fit, and that the
medical officer must observe the prisoner daily for any changes. 33 The Council of
Europe's European Committee for the Prevention of Torture also stated in 1992 that
"solitary confinement can, in certain circumstances, amount to inhuman and
degrading treatment; in any event, all forms of solitary confinement should be as
short as possible."34
Finally, conditions in US prisons, including supermax confinement, have
provided grounds for criminal defendants to resist extradition to the United States.
The European Court of Human Rights, in applying the European Convention on the
Protection of Human Rights and Fundamental Freedoms, has established that
extradition from Europe to US prisons may violate European law. In the 1989
Soering case, for example, the European Court refused extradition to the United

32 Rachel Kamel and Bonnie Kerness, The Prison Inside the Prison: Control Units,
Supermax Prisons, and Devices of Torture (American Friends Service Committee
2003) ("While other countries do operate isolation units, their use is far more
restricted.").
33 Elizabeth Vasiliades, Solitary Confinement and International Human Rights: Why
the u.s. Prison System Fails, 21 Am. U. Int'l L. rev. 71,93-94 (2005).
34Id. at 94.

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States based on the extreme psychological effects of confinement on death row. 161
Eur. Ct. H.R. (ser. A) at 44 (1989).
The European Court is also considering whether supermax conditions in US
prisons violate Article 3 of the European Convention, which prohibits the
extradition to a state where the prisoner is at risk of inhuman and degrading
treatment. Babar Ahmad, a British citizen, and three others, were indicted in the US
on terrorism charges. The Court blocked the extraditions and as of July 2011 was
considering whether the defendants' post-trial confinement to the federal supermax
prison amounts to a violation of Article 3 of the European Convention.

IV.

RECOMMENDATIONS
Supermax confinement has become so embedded in the culture of prison

administration that it will take a Significant effort to reverse this abhorrent practice.
In recent years, there has been some indications that the expansion of solitary
confinement has slowed. New York has passed legislation limiting solitary
confinement for mentally ill persons, and the legislatures of Maine (which has begun
limiting the practice of segregation) and Colorado have introduced bills designed to
curb the practice. 35 In addition, the ABA Standards for Criminal Justice Treatment of
Prisoners, adopted in February 2010, recommend that "[c]onditions of extreme
isolation" be prohibited and that no prisoner with serious mental illness be placed
in long-term segregated housing.

35 See ACLU Press Release, Bill Introduced in Colorado Legislature Aims to Curb Use
o/Solitary Confinement in Prisons, Feb. 22, 2011, available at www.aclu.org.
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We therefore make the following recommendations 36 :

1. The provision in the PLRA providing that inmate plaintiffs may not recover
damages "without a prior showing of physical injury" should be repealed;
2. Prisoners with serious mental illness should never be subjected to supermax
confinement;
3. Conditions of extreme isolation and restriction should be imposed only when
an extremely serious threat to prison safety has been established, and even
in such circumstances supermax confinement should be for the shortest time
possible and inmates should be afforded due process, and an opportunity to
contest the confinement and appeal;
4. Any form of segregated housing should provide meaningful forms of mental,
physical and social stimulation; and

These recommendations are based on recommendations made by Human Rights
Watch, supra note lS, and the ABA Standards adopted in 2010.
22
36

6829191.2

S. A national task force should be established to promptly report on the
numbers of inmates being held in supermax confinement in state and federal
prisons and their conditions of confinement, and to propose further
legislative and administrative reforms.
Respectfully submitted,

Stephen L. Kass (Chair)
E. Michelle Andrews

Elizabeth Barad
Elizabeth C. Black
Rachel Bien
Christina L. Brandt-Young
James E. Brumm
Lauro M. Bueno
Elizabeth R. Crotty
Brett Dakin
Lisa Davis
Anthony DiCaprio
Beatrice S. Frank
Katherine Gallagher
Jocelyn Getgen Kestenbaum
Barbara S. Gillers
Jennifer L. Gorskie
Maija Hall (Student Member)
Julie Hassman
Nichole Hines
Katherine Hughes

Akbar Hussain
Benjamin G. Joseloff
Joanne Kalas
Rhoda H. Karpatkin
Rebecca Landy
Kristen K. Leibensperger
Julie A. McCane
Jean M. McCarroll
Sam Scott Miller
Nishi Rajan
Katherine Scully
Susan J. Schneider
David P. Stoelting*
Glynn K. Torres-Spelliscy
Jennifer Trahan
Nadia F. Zaidi
Michael Plumb (Secretary)
Adam Dubin (Student Member)
Maija Hall (Student Member)

*Subcommittee chair and principal author of Report.

September 9,2011

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