Among the many human rights calamities ushered in by the Trump era is a renewal of the national debate over the legitimacy of physical torture. The President, unsurprisingly, has long been in favor of it, asserting repeatedly that “torture works,” and promising to bring back practices “a hell of a lot worse” than waterboarding.
A draft of an executive order leaked during Trump’s first week in office calls for a revival of “enhanced interrogation techniques,” and of the network of overseas Black Sites that sprung up after 9/11. (For now, Trump says, he will defer to his Defense Secretary and CIA Director, who believe that other methods of extracting information are more effective—though that could change at any time.)
A stinging response to Trump’s order came from John McCain, one of the only Republicans in Congress yet willing to disagree with the President on any front. “The President can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America.”
But as McCain, of all people, should know, a practice widely recognized as torture has been taking place all along, right on American soil.
During his nearly six years as a POW in North Vietnam, McCain endured terrible beatings and other forms of physical torture. Yet he described his two years in solitary confinement this way: “It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”
For some of the roughly 100,000 people held in solitary confinement in U.S. prisons and jails, the extreme isolation and sensory deprivation of solitary are being used, as they were on McCain, as a means of coercion, whether it be to reveal information or simply to plead guilty while awaiting trial.
For tens of thousands of others, this spirit-crushing treatment is imposed simply as a prison “management tool.” People in prison are routinely condemned to spending 23 hours a day alone in small, bare cells, for months, years, or even decades—not by a judge or jury, but by prison staff, including rank-and-file corrections officers. Infractions as trivial as talking back to a guard, failing to return a food tray, or having too many postage stamps are reason enough to land you in prolonged isolation.
People with psychiatric disabilities are disproportionately sent to solitary for acting out due to untreated symptoms of mental illness, including self-mutilation and attempted suicide. So, too, are children, LGBTQ individuals, and people who are deaf or blind, often purportedly for their own “protection.” Arguments that solitary reduces violence, even for those who commit more serious infractions, have been proven false.
The case against solitary confinement as inhumane, ineffective, and dangerous to public safety is now backed by so much evidence that it is close to incontrovertible. But is it torture? And should it demand the attention of Americans, even amidst the travesties of justice that now emerge from the White House on a daily basis?
In his seminal New Yorker article on solitary confinement, Dr. Atul Gawande explored the experience of former hostages and POWs as well as individuals formerly incarcerated in U.S. prisons. “None,” he wrote, “saw solitary confinement as anything less than torture.” Neither have any of the thousands of people we have spoken and corresponded with over more than seven years of covering the subject for Solitary Watch.
Even the former warden at ADX, the federal government’s all-solitary supermax prison in Colorado, called the place he once managed “a clean version of Hell.” A lawsuit filed in 2012 on behalf of men held at ADX describes their responses to years of extreme isolation and sensory deprivation:
Prisoners interminably wail, scream and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, writing utensils and whatever other objects they can obtain. Some swallow razor blades, nail clippers, parts of radios and televisions, broken glass and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads, oblivious to the reality and the danger that such behavior might pose to themselves and anyone who interacts with them.
Hundreds of people in prison have gone so far as to choose death over a continued life in solitary confinement. While approximately 5 percent of the nation’s prison population is being held in solitary, 50 percent of all prison suicides take place there. The challenge of taking one’s own life in a bare cell has been met by individuals who jump head first off of their bunks, or bite through the veins in their arms.
International human rights bodies have likewise concluded that solitary confinement constitutes torture. In 2011, former UN Special Rapporteur on Torture Juan E. Méndez called on countries to prohibit the use of prison isolation beyond 15 days, citing the “severe mental pain or suffering” caused by solitary, as well as the permanent nature of the psychological and neurological damage it can cause. For children and people with mental illness, he recommended a total ban.
In 2015, Méndez’s recommendations were codified in the United Nations Standard Minimum Rules on the Treatment of Prisoners, known as the “Mandela Rules,” to which the United States is a party. Yet the U.S. government repeatedly denied Méndez the opportunity to even conduct fact-finding visits to American supermax prisons and solitary confinement units.
Despite this growing consensus, U.S. courts have, with a few exceptions, failed to conclude that solitary confinement violates the Constitutional ban on cruel and unusual punishment. There are no federal laws—and only a handful of state laws—that place any limitations on the use of solitary. Solitary confinement continued to be used at Guantánamo after the Obama Administration banned other forms of torture, and even the Army Field Manual, which has been held up as a model by McCain and others as a guide for humane interrogation techniques, permits the use of solitary.
In the last several years, however, an expanding group of advocates, joined by growing numbers of ordinary Americans, is resisting the widespread use of solitary in U.S. prisons and jails. And under the pressure of both activism and evidence, some state and local prison systems have begun to reduce their dependence on the practice. In January 2016, they were joined by President Obama, who ordered incremental reforms to the use of solitary in federal prisons.
The federal-level changes can easily be reversed by Trump and his new Attorney General, Jeff Sessions. But there is nothing to stop state prisons and local jails—where the vast majority of the 2.2 million incarcerated Americans are held—from continuing and expanding their reforms.
They still, however, have a long, long way to go: A recent report suggests that the number of people in solitary in prisons (not counting jails or detention centers) has declined from a high of 81,000 in 2005 to about 70,000 today. These numbers will fall significantly only if advocates and citizens maintain—and increase—the pressure for change.
People in solitary confinement may be the most marginalized members of American society, but they are human beings—and as Atul Gawande wrote, “all human beings experience isolation as torture.” Even as the Trump era delivers its daily doses of disaster, this is something we cannot afford to forget.