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Use of solitary confinement erodes following lawsuits

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REUTERS/Joshua Lott

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(Reuters) - A series of lawsuits has spurred recent improvements in prison conditions and prompted several states to end the practice of automatically subjecting prisoners sentenced to death to untenable solitary confinement conditions.

People sentenced to death in Kansas are in the process of transitioning from isolation into the general population. And a Louisiana judge on October 28 approved a settlement in a constitutional challenge to state officials' decision to place everyone on death row in indefinite solitary confinement, regardless of personal needs or behavior.

Eight states have faced recent lawsuits, six of which have resulted in substantial changes to the incarceration conditions of death-sentenced prisoners, according to research published this year by Merel Pontier, a Texas attorney who works on capital punishment and incarceration issues at the Clinton Young Foundation. At least 10 states still automatically place individuals sentenced to death in isolation.

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The move away from automatic solitary confinement — where prisoners can be isolated for 22-24 hours a day without human contact, often for decades at a time — is a signal to the remaining holdout jurisdictions, including Alabama, Texas and Georgia, that still use the practice, to follow suit.

Louisiana has been known as the “world’s prison capital” for years. It’s worth a mention that the Louisiana State Penitentiary maintains a name — Angola — that explicitly references the fact that most of the people imprisoned and compelled to work there have been Black, going back to its inception as a slave plantation in the 1800s.

Before the lawsuit, people on death row at the Louisiana prison got one hour out of their cells a day, alone, and a cage-like setting for exercise or outdoor recreation. No group activities were allowed, per the Oct. 28 settlement agreement.

The agreement provides a minimum of four to five hours of time to congregate and exercise outdoors, and some ability to eat together, join religious services, take classes and have contact visits.

Betsy Ginsberg, one of the lawyers who handled the case on behalf of Marcus Hamilton and two other Louisiana prisoners, said she and her co-counsel have talked to nearly all of the roughly 70 men on death row at the prison and received many positive reactions about the changes. Ginsberg directs the Civil Rights Clinic at Benjamin N. Cardozo School of Law in New York.

“Nobody gets exactly what they want, but I do think these are big steps forward,” she said.

Since the 19th century research has shown that solitary confinement is tantamount to torture and causes serious psychological damage. U.S. Supreme Court Justice Samuel Freeman Miller acknowledged so in a 1890 case called In Re Medley, recalling observations after the practice was pioneered in Philadelphia in 1787:

“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,” Miller wrote.

Further research since then reveals that people released from isolation have a higher reoffending rate than those coming from general population and that isolation is more expensive, according to a 2019 law review article by Georgina Gannon, an attorney at the Matian Firm in California.

The United Nations in 1955 adopted minimum standards that permit solitary confinement and prolonged segregation only in exceptional circumstances. It adopted the Mandela Rules in 2015, which impose even further restrictions and states that people can’t be subjected to solitary confinement simply by virtue of their sentences.

Still, the United States today remains an exception around the world in its extensive use of long-term solitary confinement.

In 2019, an estimated 55,000 to 62,500 people were held in isolation in the U.S., not counting juvenile detention facilities, immigration facilities, or people in county or city jails (as opposed to prison), according to a report by the Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School.

The Louisiana settlement is part of a national movement aimed at loosening the severely harmful restrictions on those incarcerated people. Since 2019, states including Oregon, Pennsylvania, Oklahoma, South Carolina and Virginia have ended automatic solitary confinement for prisoners sentenced to death after being sued and has started allowing prayer and other group activities, according to the Death Penalty Information Center. Settlement talks are ongoing in Florida, according to Pontier's law review article.

Notably, Louisiana refused to admit in the settlement agreement that any of their previous conditions of confinement violated the U.S. Constitution. (There do not appear to be any pending cases presenting a question about automatic solitary confinement to the Supreme Court).

Spokespersons at Angola and the state attorney general's office didn't respond to requests for comment.

Ginsberg told me there was some initial pushback from state officials to the litigation, though she added that they quickly recognized the benefits of making changes, including lower costs.

Other states would be wise to recognize them, too.

"We’ve seen lots of states go into protractive and expensive litigation, even when they’re taking a losing position,” Ginsberg said. “I can’t say what they’ll do, but I would say they absolutely should voluntarily change those conditions, both because it’s the right and humane thing to do, and because it’s less costly.”

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com

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