The Word: Torture Before Trial
The Word from Solitary Watch for September 2022
In 2010, the human rights lawyer Juan Méndez was appointed UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. To many people in the United States, despite the domestic history of torture, the word carries associations with faraway places and despotic regimes. But Méndez, who was himself tortured in his native Argentina in the 1970s, saw a pervasive practice in the U.S. that demanded immediate attention and devoted his first UN report to it: the use of solitary confinement against people in prisons and jails.
Méndez’s report described the widespread use of solitary, its consequences for the health and sanity of people subjected to it, and key recommendations for ending the worst of the practice. Many of his conclusions have since helped shape the understanding of solitary as a form of torture, as well as the movement to end it. These include bans on the use of solitary beyond 15 days and an absolute ban on its use for people who are especially vulnerable to its effects.
What drew less attention and has registered less fully is Méndez’s call for an absolute prohibition on solitary in pretrial detention, which highlighted its coercive potential. The idea of coercion calls up images of physical torture used to extract information or force confessions—but it, too, has parallels in the everyday use of solitary confinement on American soil.
Pretrial detention is in fact the most common form of incarceration in the United States. Authorities send people to jail more than ten million times a year, the overwhelming majority of them people who have been arrested but not convicted of a crime. On any given day, over 600,000 people are in local or federal jails, in many cases simply because they cannot afford bail.
The most recent government sampling found that nearly 18 percent of people in jail had been subjected to solitary. Among people who had been in jail for six to twelve months, over 30 percent had received this treatment. What Méndez clearly recognized was that people subjected to the torture of pretrial solitary in jail are also under enormous pressure to consider the guilty pleas that are a hallmark of the U.S. system.
The concern about coercion has been raised by others, including the professors Laura Rovner and Jeanne Theoharis, who wrote about the individuals rounded up post-9/11 and subjected to dubious terrorism prosecutions and ruthless conditions:
“What is especially troubling about the use of pretrial isolation is its potential as a coercive tool. Although public debate has circled around the efficacy of using torture for gathering intelligence, inhumane treatment—particularly the use of prolonged solitary confinement—can be an effective means to secure convictions. These methods can psychologically break down the accused, making it difficult for them to participate effectively in their own defense….In turn, authorities can use behavior problems caused by prolonged isolation to justify imposing further draconian conditions. And the conditions make it more likely that people will take a plea rather than risk a lifetime in such isolation.”
The case they were focused on was that of Syed Fahad Hashmi, charged with conspiracy to provide material support or resources (in his case, socks and rain ponchos) to foreign terrorists. Though he denied all charges, Hashmi, a U.S. citizen, was jailed at the notorious Metropolitan Correctional Center in Lower Manhattan and subjected to solitary confinement that isolated him within the jail, as well as to “Special Administrative Measures” that restricted his contact with the outside world. He also faced the threat of 70 years in prison. After three years in these conditions, Hashmi pleaded guilty and received a 15-year sentence in the country’s harshest federal prison, ADX Florence.
It was also in New York, but at the city’s Rikers Island complex, that Kalief Browder was jailed for three years starting when he was 16. His detention drew national attention to the multi-headed horrors of the prosecution of youth as adults, rampant pretrial detention and pressure from prosecutors to plead guilty, and extensive use of solitary confinement. Browder was in solitary for a total of two years of his incarceration. He insisted on his innocence the entire time, and refused to consider a plea deal. Eventually the charges against him were dismissed. Two years after his release he died by suicide.
Despite pledges by city officials to end the use of solitary following the deaths of Browder, Layleen Polanco, and many others, it has remained in place. Now, however, amid a deadly crisis at Rikers, New York City Council members support a bill that would ban the practice entirely. Similar legislation is being considered by the D.C. Council in Washington, where the local jail has made rampant use of solitary confinement (including, but by no means limited to, the isolation of detainees accused of violent offenses during the January 6 insurrection).
If either bill becomes law, it will be a long stride forward in the struggle to end solitary confinement, and to protect from torture the millions of people unable to buy their way out of jail.
Read earlier dispatches:
July/August 2022: The Art of Changing Hearts and Minds on Solitary Confinement
June 2022: In Prison, We Face Epidemics of Isolation and Neglect on Top of COVID-19
May 2022: The “Voiceless” Do Have Voices. Are We Listening?
April 2022: The Myth of Safety Through Punishment
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