Penal Isolation

• DOI: 10.1177/0093854808317569
• Published date: 01 August 2008
• Date: 01 August 2008
• Author: Fred Cohen
• Subject Matter: Articles

PENAL ISOLATION
Beyond the Seriously Mentally Ill
FRED COHEN
Tucson, AZ
The duration and conditions of penal confinement (i.e., segregation) in use by our prisons, and regularly upheld by the courts,
are so extreme and so harmful that ultimately such confinement should be prohibited as a matter of law and policy.
Correctional officials, and the courts, tend to conflate the need to insulate some inmates from each other with the use of a
23/7 regimen of segregation, devoid of social interaction. Inmates suffering with mental illness or who are at risk from such
confinement and juveniles are the exceptions, and they have had some success in the courts. This article reviews the relevant
history of penal isolation, Supreme Court decisions and other case law, and the evidence of harm caused by extreme penal
isolation. It is proposed that the law relating to the acceptable uses of mechanical restraints serve as an analogy for the basic
reform in the use of penal isolation.
Keywords:
confinement, penal isolation, mental illness
Let me begin with the obvious:The very nature of our prisons means we must have some
means by which to separate prisoners on the basis of those who are at risk from those
who create those risks. There are any number of other possible reasons for separation: age,
gender, and infection control are some examples. Those bases for separation are not within
the primary focus of this article.
Less obvious than the risk of harm rationale but equally compelling based on policy and
practice is the separation of inmates from each other based on punishment for disciplinary
infractions. I say “less obvious” because there are a variety of punishments available to prison
authorities—for example, loss of amenities, loss of good time, restriction of visiting privi-
leges, transfers, and the like—short of the separation of inmates from each other. Where there
is a genuine concern about the safety of staff and fellow inmates, and depending on the degree
of risk, I stipulate the legitimate need for separation—for insulation—without also conceding
the legitimacy of the extreme conditions often tied to such separation or insulation.
Penal environments, then, separate—segregate—inmates involuntarily based on risk and
as punishment for a prison infraction, a decision not overtly concerned with risk.1 When
that separation takes the form of segregated housing with varying degrees of limitation on
movement, interaction with staff and other inmates, on exercise, visits, reading material,
and access to programs, I will refer to that as penal isolation.
There are, then, multiple avenues leading to various degrees of penal isolation. Why a
given avenue is taken and by what procedural format are independent and fundamental
AUTHOR’S NOTE: Correspondence concerning this article may be directed to Fred Cohen, LL.B., LL.M,
9771 E. Vista Montanas, Tucson, AZ 85749; e-mail: Fredlaw97@aol.com.
CRIMINAL JUSTICE AND BEHAVIOR, Vol. 35 No. 8, August 2008 1017-1047
DOI: 10.1177/0093854808317569
© 2008 International Association for Correctional and Forensic Psychology
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CRIMINAL JUSTICE AND BEHAVIOR
questions, but not within the primary scope of this article. The concern here is with the
conditions and duration of penal isolation whether for punishment or in response to risk
assessment (administrative segregation or classification).
My thesis is that there are conditions of extended penal confinement that are now
imposed and frequently judicially upheld that should be prohibited as a matter of policy and
law. As will be seen, the courts are somewhat receptive to the elimination of extreme penal
isolation on behalf of those inmates suffering with a serious mental illness or at risk for
developing such illness.
Juveniles have long received a judicial, categorical immunity from extended penal isola-
tion. Juveniles, not as litigious as their adult counterparts, often are isolated under sterile,
deprivational conditions in the name of Behavioral Management Plans or the euphemistic
“time out.” Thus, there is often a dichotomy between juveniles’ rights and practices that go
unchallenged.2 The mentally ill and juveniles are judicially immunized based on beliefs or
evidence linking their condition with a special susceptibility to the pain and suffering asso-
ciated with penal isolation. To the extent that the seriously mentally ill and juveniles in cus-
tody also share a right to treatment, penal isolation should be seen as antithetical to that right.
My hope is to extend the general immunity of juveniles and the emerging immunity of
mentally ill inmates to various degrees of penal isolation to all persons in penal confinement.
Along the way, I shall contrast the laudable, legal concern for limiting the use of mechani-
cal restraints with the often shockingly permissive approach taken to penal isolation.
PENAL ISOLATION: CASE LAW REVIEW
A cursory review of some 40 or 50 years of litigation challenging both the use and condi-
tions of penal isolation is a sobering reminder of just how base and how unenduringly lengthy
such conditions may be and still escape successful constitutional challenge. To begin, con-
sider Ruark v. Schooley (1962), where detainees’ complaints about being confined in an iso-
lation cell in a county jail without food, water, and toilet paper for 52 hours were held not to
state a claim upon which relief could be granted. More recently, in Platt v. Brockenbrough
(2007), the Federal District Court reviewed a litany of a Pennsylvania inmate’s complaints:
• His numerous grievances were never even acknowledged.
• He was placed in segregation for 37 days.
• He was allowed to exercise only twice in a month for 1-hour periods.
• He was denied the means to clean his cell, not allowed to shower regularly, and was shackled
everywhere he went.
First, let me emphasize that these introductory cases are not some worst-case scenarios
presented for inherent shock value. Far from it. Platt’s contemporary complaints fall on the
mild side of the dozens upon dozens of cases I have reviewed.
Judge Anita Brody found that Platt had no constitutional right to a response to his griev-
ances. If he has exhausted the administrative review process, then the prison’s silence
allows him to file suit in federal court. So much for that.
Using the mystical test formulated in Sandin v. Conner (1995), Judge Brody then found
that the inmate had no right to procedural due process prior to his placement in segregation
and the brief duration involved does not approximate Sandin’s requirement of an “atypical

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Cohen / PENAL ISOLATION
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and significant hardship” in relation to the ordinary incidents of prison life. Indeed, a
15-month stay in administrative segregation has previously been found to fall within the
parameters of the sentence judicially imposed on the inmate.3 Thus, Platt’s rather brief stay
makes his complaint appear to be almost frivolous.
As for Platt’s claim regarding the conditions of confinement and his persistent shackling,
Judge Brody waived off the cleanliness and shower complaints with the general response
that, “These conditions are undesirable but the Constitution does not mandate comfortable
prisons.”4
Finally, the judge notes, correctly, that the law is reasonably clear that lack of exercise
may pose a significant threat to an inmate’s physical and mental well-being. For example,
if muscles are allowed to atrophy, Judge Brody sagely observes, this may constitute cruel
and unusual punishment.5 One might hope that an inmate’s right to exercise would be found
impaired even before his or her muscles experience atrophy.
In any event, the exercise claim is the only one to escape dismissal and this pro se plain-
tiff is given an opportunity to plead and show the extent of his alleged injuries. He does
appear to suffer with some form of mental illness for which he now receives medication
and perhaps he can convert the physical injury into a causally related psychological harm.
The Platt decision takes us into the contemporary legal world of penal isolation, but just
part of the way. The Supreme Court decision in Sandin addressed conditions of confine-
ment in isolation or segregated settings but only to determine if a pre-deprivation discipli-
nary (i.e., due process) hearing is required. I presume that conditions may be atypical and
significant hardships but not also the conditions forbidden by the Eighth Amendment’s
Cruel and Unusual Punishment Clause.
By that I mean only that cruel and unusual conditions are not ever constitutionally per-
missible. The Sandin “atypical and significant” hardship is allowed—perhaps merely toler-
ated—but requires a so-called Wolff procedural format. Thus, one set of conditions is not
allowed whereas the other—the Sandin situation—requires a procedural minuet on the way
to, say, 15 months in penal isolation.6
As for the constitutional standard used to determine cruel and unusual punishment,
Judge Brody rules
Conditions of confinement may violate the Eighth Amendment if they satisfy two criteria.
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). First, the
conditions alleged must be sufficiently serious such that the official’s act or omission results
in the denial of “the minimal civilized measure of life’s necessities.” Id. [citation omitted].
Second, the officials responsible for these conditions must exhibit “deliberate indifference” to
the inmate’s health and safety. Id. They must act with a state of mind “more blameworthy than
mere...