Solitary Confinement in the Senate Criminal Justice Package (2 Responses)

Prisoners in Massachusetts can be sentenced to up to 10 years in solitary confinement for serious disciplinary violations like killing another prisoner.

Most prisoners serving multi-year sentences in solitary confinement are likely to suffer psychological harms from the confinement. In fact, some believe that any solitary confinement over 15 days is unacceptably harmful.  Yet, if a prisoner kills another prisoner, a punishment limited to 15 days, as some have proposed, would seem to trivialize the taking of a life.

The broad criminal justice reform package before the senate addresses this dilemma.  It would require that prisoners serving longer terms in solitary have access to the programming they need to get their behavior under control and have the opportunity to have their case reviewed every six months to see if they might be ready to return to general population early.

This approach respects the existing disciplinary process that the Department of Correction has defined through regulations. When Massachusetts prisoners are accused of serious offenses within the walls, they are entitled to an adversary hearing about what happened and if found guilty will be sentenced to a term of solitary confinement according to a schedule of penalties that runs up to 10 years for the most serious violence. The disciplinary sentence is in addition to whatever extension of incarceration might be imposed by the court system, but might be the only penalty available if the prisoner is already sentenced to life without parole.

The Massachusetts approach is arguably fairer to prisoners than the “classification” approach used in many other states.  Other states may classify a prisoner to solitary simply because they perceive him to be dangerous.  In those states, the prisoner may remain in solitary as long as he is perceived to be dangerous, which could be for his entire incarceration.

Whether a prisoner is sentenced to solitary or classified to solitary, the real questions are (a) whether we are treating them humanely while they are there so that they have a chance to improve and (b) whether they have a chance to be returned to general population if they do improve.  Our legislation speaks directly to both of those questions, mandating improvements in programming and regular placement reviews for inmates confined to solitary.

There will always be some prisoners who need to remain in solitary, but our legislation, if effectively implemented, should result in shorter average stays in solitary confinement.  Prisoners leaving solitary should also be much better prepared to return to general population or to the street.

The bill makes several other changes to the rules related to “restricted housing” – the currently preferred generic term that includes solitary confinement:

First, the bill would repeal the Massachusetts law that authorizes “isolation” – confinement with only one meal per day.  This severe and archaic form of confinement is never used.  In Massachusetts, the most severe forms of “restrictive housing” already do include three meals a day and regular outdoor exercise and showers.

Second, the bill codifies the amenities that must be provided to persons in restrictive housing (which it defines as confinement within a cell over 22 hours per day, following national convention).

Third, the bill would require that any prisoners who require protective custody for their safety be provided the same freedoms and amenities as other inmates.   It also makes clear that being LGBTQ should not in itself be a reason for restrictive housing.

Fourth, the bill reinforces the principle that no prisoner with a serious mental illness should be confined to restrictive housing, but should instead be confined to a secure treatment unit.  The Massachusetts prison system has already come a long way on this issue, offering housing arrangements that reduce unhealthy loss of social contact for those who are both dangerous and mentally ill while still assuring the security of staff and other prisoners.

Finally it requires an expansion of reporting regarding the use of solitary which should assure the transparency necessary to monitor progress on the goal of reducing solitary confinement while preserving order and safety in prison.

For other provisions of the Senate Criminal Justice Package, follow this link. For more background on solitary, follow this link.

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    Will Brownsberger
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    2d Suffolk and Middlesex District