Regulating segregation: the contribution of the ABA criminal justice standards on the treatment of prisoners.

• Author: Schlanger, Margo

Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label "disciplinary segregation," "administrative segregation," "special housing," "seg," "the hole," "supermax," or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting--an exercise cage or a space with a shower.

Long-term segregation units operated along these lines are extraordinarily expensive to build and operate. Too many prisoners are housed in them for too long, in conditions whose harshness stems more from criminal-justice politics than from correctional necessity or even usefulness. Prisoners in long-term segregation units often experience extreme suffering, and those who have serious mental illness frequently decompensate and become floridly psychotic. As one judge has explained, "[f]or these inmates, placing them in the SHU [Security Housing Unit] is the mental equivalent of putting an asthmatic in a place with little air to breathe." (1) Some prisoners who enter long-term segregation in a relatively psychologically healthy state experience mental-health damage as well. Such conditions are inconsistent with the human dignity of prisoners and are frequently counterproductive.

It is for this reason that the American Bar Association's (ABA) Criminal Justice

Standards on the Treatment of Prisoners propose several important reforms in this area of criminal justice policy. From 2007 to 2009, I had the privilege of serving as the Reporter for the Task Force that produced these Standards, which the ABA has now adopted and which are reprinted in this issue of the American Criminal Law Review. Like all of the ABA's Criminal Justice Standards, these are offered by the ABA as a source of insight and authority for judges, legislators, and government officials who are aiming to rationalize and improve the criminal justice system. (2)

In this Article, I discuss both how and why the ABA Standards deal with the crucial issue of the use of segregation. To summarize, in order to comply with the Standards, jails and prisons must:

* Provide sufficient process prior to placing or retaining a prisoner in segregation to be sure that segregation is warranted. (ABA Treatment of Prisoners Standard 23-2.9 [hereinafter cited by number only] (3))

* Limit the permissible reasons for segregation. Disciplinary segregation should generally be brief and should rarely exceed one year. Longer-term segregation should be imposed only if the prisoner poses a continuing and serious threat. Segregation for protective reasons should take place in the least restrictive setting possible. (23-2.6, 23-5.5)

* Decrease isolation within segregated settings. Even prisoners who cannot mix with other prisoners should be allowed in-cell programming, supervised (and physically isolated) out-of-cell exercise time, face-to-face interaction with staff, access to television or radio, phone calls, correspondence, and reading material. (23-3.7, 23-3.8)

* Decrease sensory deprivation within segregated settings. Jails and prisons must limit the use of auditory isolation, deprivation of light and reasonable darkness, punitive diets, etc. (23-3.7, 23-3.8)

* Allow prisoners to gradually gain more privileges and be subjected to fewer restrictions, even if they continue to require physical separation. (23-2.9)

* Refrain from placing prisoners with serious mental illness in what is an anti-therapeutic environment. Jails and prisons must instead maintain appropriate secure mental-health housing for such prisoners. (23-2.8, 23-6.11)

* Carefully monitor prisoners in segregation for mental-health deterioration and deal with deterioration appropriately if it occurs. (23-6.11)

The ABA is far from the first organization to offer proposals to reform solitary confinement. (4) The Standards' unique contribution, however, is to address all the aspects of long-term segregation by presenting solutions that embody a consensus view of representatives of all segments of the criminal justice system who worked on them together in the exhaustive and collaborative ABA Standards process. (5)

Part I of this Article provides information on the Standards more generally. Part II discusses the history of segregated housing and general observations about its effects. Part III discusses the approach taken by the ABA Standards with respect to permitted rationales for the use of segregated housing. Part IV describes the Standards' procedural requirements for placing prisoners in long-term segregation. Finally, Part V focuses on those Standards that are intended to mitigate the effects of isolating conditions.

This Article is part of a paper Symposium on the Standards; it is joined by an essay by ACLU National Prison Project Director David Fathi focusing on prisoners' access to courts and other oversight bodies, and another on immigration detention by New York City Department of Corrections Commissioner Dora Schriro.

1. STANDARDS ON THE TREATMENT OF PRISONERS

   1. Background

      The Standards on the Treatment of Prisoners were, after a five-year drafting process, approved by the American Bar Association House of Delegates in February 2010. 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 extensive contributions and comments of dozens of additional experts and groups (among them heads and former heads of correctional agencies, prisoners' advocacy organizations, and many professional associations), the Standards 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 prisoners' rights, while promoting the safety, humaneness, and effectiveness of our correctional facilities.

      The Standards are part of the ABA's multi-set Criminal Justice Standards project. (6) They replace the ABA's 1981 Criminal Justice Standards on the Legal Status of Prisoners, which were supplemented by two additions in 1985 but not subsequently amended. (7) In the 1980s, the now-replaced Legal Status of Prisoners Standards proved a useful source of insight and guidance for courts and correctional administrators and were frequently cited and used.

      Nevertheless, the 2010 revision was long overdue: enormous changes have affected American corrections since 1981, and even in the 1990s, the 1981 standards had grown sadly out of date. The Criminal Justice Standards project's goal is to provide up-to-date guidelines that address the current conditions and challenges of America's jails and prisons, helping to shape the fair and humane development of the law and operation of the criminal justice system. There are eighty-three Standards in the volume that cover a wide range of issues affecting the 2.4 million people housed on any given day in America's jails and prisons.

      The most consequential change since 1981 is the astronomical growth in incarceration in the United States. In 1981, 557,000 prisoners were held in American jails and prisons; that number has since skyrocketed to its current level of over 2.3 million, with two-thirds in prisons and one-third in jails. (8) Justice Anthony Kennedy's address to the ABA in 2003 highlighted the "remarkable scale" of incarceration in the United States and the consequent need to "improve our corrections system" by addressing "the inadequacies--and the injustices--in our prison and correctional systems." (9) The population explosion in prisons and jails has imposed severe pressure on incarcerating authorities as they attempt to cope with more prisoners and longer terms of incarceration. New challenges have appeared, and old ones have expanded (among them private prisons, long-term and extreme isolation of prisoners, and the special needs of a variety of prisoners). At the same time, increased scale and generations of experience with modern correctional approaches have produced many examples of expertise and excellence. Social science research has developed significant insights in a large body of highly respected work.

      The growing scale of modern American incarceration means, too, that an ever increasing number of our citizens have, at least at some point, been subject to criminal justice supervision. Whatever problems exist now affect more people than ever. On any given day, there are about as many people incarcerated as live in the thirty-fifth most populous state, Nevada. And even this record figure understates substantially the human impact of our current correctional system: over the course of a year, approximately thirteen million people spend time behind bars in our nation's jails and prisons. (10) Our most basic democratic commitments forbid us to write off so many individuals as part of the governing as well as the governed people. Accordingly, the dignity and humanity of the men and women incarcerated in America must be front and center in our nation's criminal justice policy.

      As the correctional landscape has been transformed by time and increased prisoner population over the past decades, relevant law has also changed considerably. Statutory and decisional law has in some ways expanded, and in other ways contracted, the scope of legal protection for prisoners. International human rights standards have likewise evolved substantially and more uniformly in favor of prisoners' rights. New approaches in corrections have elicited new legal standards and rules; new approaches to a variety of legal questions have varied in their application to corrections; and the application of the Eighth Amendment, the "basic concept underlying [which] is nothing...