The New York City Bar Association’s Committee on International Human Rights has turned its sights on the American prison system, and produced a concise, well-documented, and important report on solitary confinement in the United States. As the report’s authors write:
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 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.
The report takes a stand for all prisoners in long-term solitary confinement, arguing that the practice is both inhumane and unconstitutional:
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. The issue, we believe, is not whether supermax achieves its purposes or is effective at controlling and punishing unruly inmates. 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,”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 of pain.” 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.” Supermax confinement as extensively implemented in the United States falls short of this standard and must be substantially reformed.
While acknowledging that “Supermax confinement has become so embedded in the culture of prison administration that it will take a significant effort to reverse this abhorrent practice,” the report ends with a series of recommendations for immediate reforms.
(For more background on solitary confinement and the law, see our new fact sheet on the subject.)