In a press conference this afternoon, President Joe Biden announced and signed a new executive order, primarily focused on policing, that also includes a directive on reducing the use of solitary confinement in the federal prison system.
The portion of the executive order referring to “restrictive housing”—the federal term for solitary—appears as part of Section 16, under the heading “Supporting Safe Conditions in Prisons and Jails.” That section begins with a strong statement:
“It is also the policy of my Administration to ensure that conditions of confinement are safe and humane, and that those who are incarcerated are not subjected to unnecessary or excessive uses of force, are free from prolonged segregation, and have access to quality health care, including substance use disorder care and mental health care.”
Similar statements appeared in the 2020 criminal justice platform of then-candidate Joe Biden, who pledged to “ensure humane prison conditions” should he be elected. His first step towards fulfilling this promise, he said, would be “ending the practice of solitary confinement, with very limited exceptions such as protecting the life of an imprisoned person.”
But the EO’s paragraph on solitary confinement takes a far more circumspect approach. It instructs Attorney General Merrick Garland to prepare a report on reforms, which are described in non-specific terms and open to broad interpretation.
“[The AG] shall…within 180 days of the date of this order, submit a report to the President submit a report to the President detailing steps the DOJ has taken, consistent with applicable law, to ensure that restrictive housing in Federal detention facilities is used rarely, applied fairly, and subject to reasonable constraints; to ensure that individuals in DOJ custody are housed in the least restrictive setting necessary for their safety and the safety of staff, other prisoners and detainees, and the public; to house prisoners as close to their families as practicable; and to ensure the DOJ’s full implementation, at a minimum, of the Prison Rape Elimination Act of 2003…and the recommendations of the DOJ’s January 2016 Report and Recommendations Concerning the Use of Restrictive Housing.”
The text of the section is largely identical to the text found in a version of the executive order that was leaked at the beginning of the year, and was first reported in February by Solitary Watch and The Appeal. As part of its analysis of the leaked EO, that article noted:
“In order to have anything to report, the Justice Department would presumably need to quickly institute meaningful changes to its policies and practices in the area of solitary—something that, according to the numbers alone, as well as accounts from journalists, advocates, and incarcerated people, it has so far failed to do. What those changes might be is anyone’s guess, since the language, though pitched in the direction of reform, is vague.”
In other words, how far the reforms will go remains an open question—but they seem highly unlikely to come close to Biden’s sweeping promise to end nearly all uses of solitary. They will also almost certainly fall far short of the “Blueprint for Ending Solitary Confinement by the Federal Government,” released in June 2021 by the Federal Anti-Solitary Task Force (FAST), which outlined a comprehensive legal and administrative framework with which the administration could curtail the practice in federal prisons and beyond.
A clue as to the administration’s intentions may perhaps be found in the only notable addition to the EO since February. This is the statement that “at a minimum,” the Justice Department should see to the “full implementation…of the DOJ’s January 2016 Report and Recommendations Concerning the Use of Restrictive Housing.”
The referenced report was prepared by then-AG Loretta Lynch at the behest of President Obama. At the time, an analysis by Solitary Watch found that, by a very rough estimate, the specific provisions of the Lynch plan might reduce the use of solitary confinement in the federal prison system by approximately one-third. (Both the Lynch plan and today’s executive order apply only to individuals in the custody of the DOJ, and not to people held by ICE or any other arm of the Department of Homeland Security or by the U.S. Military.)
Lynch’s recommendations, which were issued in the final year of the Obama administration, were never fully implemented. While the percentage of individuals held in solitary by the federal Bureau of Prisons (BOP) had nonetheless began to decline under Obama, it climbed once again under Trump.
Meanwhile, in the past six years, the movement against solitary confinement has gained considerable momentum nationally. Dozens of state-level laws have limited or banned solitary for vulnerable groups such as children and pregnant people, while New Jersey, New York, and Connecticut have passed legislation that codifies the UN’s Nelson Mandela Rules for the treatment of prisoners, which limit the use of solitary to 14 days.
Anti-solitary advocates and other stakeholders have not yet commented on the executive order. But when the draft EO was leaked in February, Johnny Perez—a FAST member who directs prison policy for the National Religious Campaign Against Torture and is a survivor of three years in solitary confinement—gave a statement to Solitary Watch.
“Biden could just say ‘I will make the U.S. federal prison system in compliance with Nelson Mandela rules,’” Perez said. “He could lead the world in ending torture by going further than the Mandela Rules and advancing efforts to completely abolish solitary, with meaningful alternatives. He could do that right now, he could tweet that tomorrow, President Trump-style… I would love to see that happen.”