Guest Post by Amy Fettig
The following commentary was written by Amy Fettig, the Deputy Director of the American Civil Liberties Union’s National Prison Project and director of its Stop Solitary campaign. Originally published on the ACLU website, it describes the record numbers of bills to place limits on the use of solitary confinement that were introduced and passed in 2019. It also notes the long road advocates still face to not only to secure more and better laws and policies, but also to implement the new legislation, often in the face of resistance from prison systems. Based on available data, Solitary Watch estimates that at least 70,000 individuals remain in solitary on any given day in U.S. state and federal prisons, along with tens of thousands more in local jails and juvenile facilities, and a growing number in immigration detention.
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Back in 2016, then President of the United States, Barack Obama, called solitary confinement “an affront to our common humanity” and ordered the Justice Department to implement reforms to the practice in U.S. prisons. Although just three short years ago, in too many ways it seems a different age: We have seen a resurgence of the “tough on crime” rhetoric that favors harsh policies and approaches that we know don’t work. Despite these painful setbacks in other areas, the strength of grassroots movements, political leadership, and growing public awareness have created a robust and growing movement to end solitary confinement—known to those of us in the justice community as Stop Solitary—dedicated to ensuring that this torturous practice ends up in the dustbin of history where it belongs.
In 2019, we saw national momentum to reign in the abusive use of solitary confinement expand faster than ever before. This year was record-setting in terms of reforms we saw introduced in state legislatures. Twenty-eight states introduced legislation to ban or restrict solitary confinement, and twelve states passed reform legislation: Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those in Connecticut and Washington, present tentative and piecemeal approaches to change. But most represent significant reforms to existing practices that promise to facilitate more humane and effective prisons, jails, and juvenile detention centers.
New Jersey passed the strongest law yet in the nation, limiting the length of solitary confinement to 20 consecutive days for all prisoners and detainees. Before the passage of this law, New Jersey put people in solitary for months or even years at a time. The new law ends that practice and also protects vulnerable populations from the harms of solitary, including people under 21 and over 65, pregnant and post-partum people and those who have recently suffered a miscarriage or terminated a pregnancy, LGBTQ people, those with serious medical conditions, and those with various forms of mental health or developmental disabilities.
Nebraska’s law also stands out: It bans any practice that looks like solitary for minors, pregnant people, and those with serious mental illness, developmental disabilities, or traumatic brain injuries. New Mexico also moved aggressively to ban solitary for minors and pregnant people and ban its use on individuals with serious mental illness. Several states, including Georgia, Texas, Montana, and Maryland passed laws prohibiting the use of solitary on pregnant people, and Montana, Maryland, and Arkansas also passed prohibitions on the use of solitary confinement on minors. In total, five states limited the use of solitary confinement on minors, and six prohibited its use on pregnant people. We even saw this issue taken up at the federal level, with the first briefing in the U.S. House of Representative highlighting The Solitary Confinement Study and Reform Act of 2019, a bipartisan bill which would establish a national commission to study the problem of solitary confinement and recommend national standards for reducing its use.
The one major disappointment came from New York, where the widely-supported HALT Solitary Bill was never brought to a vote after legislative leaders cut a deal with New York Governor Cuomo to let the prison administrators write their own reform policies. Those proposed rules have already been widely panned as woefully inadequate to stop the torture of solitary in New York State. Despite these setbacks, advocates in New York continue to push for passage of HALT and the implementation of real reform in the state, including a 15-day limit on solitary confinement that conforms with the international human rights standards set forth in the United Nations Standard Minimum Rules on the Treatment of Prisoners, now known as the Mandela Rules. If HALT passes in 2020, New York will be the first state in the nation to incorporate the Mandela Rules into its laws.
Advocates across the country are now gearing up to introduce more legislation to Stop Solitary and to ensure that the significant reforms passed in 2019 are actually implemented by corrections institutions as the laws require. State by state and community by community, solitary survivors, civil rights advocates, faith leaders, medical professionals, politicians, and interested members of the public are joining together to bring an end to the torture of solitary confinement in the United States. Much has changed since President Obama spoke of “our common humanity” in 2016, but that humanity remains the same. It demands that we end solitary confinement once and for all—to the protect the people it harms and the communities they will return to, but also so we can be the type of country we aspire to be.
Banner photo: Chamber of the New Jersey General Assembly, which in 2019 passed the nation’s most sweeping legislation to limit solitary confinement in its state prisons.