Solitary Confinement: Possibly Torture, Definitely Hell
Thanks very much to Danielle for her kind introduction, and to her and Dan for inviting me to participate in this blog. This is my inaugural blogging experience, and I’m (somewhat nervously) looking forward to it! Let me start with a brief comment on the story on solitary confinement by Atul Gawande in this past week’s New Yorker. Solitary confinement is practiced on quite a large scale in the United States, especially with the rise of supermax prisons over the past ten or twenty years. Gawande argues that solitary confinement essentially destroys prisoners’ brains. Humans are extremely social animals, and absent regular interaction, our minds deteriorate rapidly and to a surprising degree. Among people detained alone for extended periods, depression and misery are universal, and psychotic breaks are fairly common. Many prisoners of war describe solitary confinement as a worse experience than physical torture. Some prisoners more or less recover after return to ordinary prison or to society; others never do. A number of legal scholars have made similar arguments, and in fact the extreme psychological harm done by solitary confinement was recognized over a century ago by the Supreme Court in In re Medley, 134 U.S. 160 (1890).
Gawande’s article’s subtitle asks: “Is this torture?” Let me assume for a moment that Gawande, who pushes the torture comparison in the body of the piece as well, means that as a serious legal question. The question isn’t frivolous. The answer isn’t a categorical “yes,” but it’s probably not a categorical “no” either–it is plausible that some cases of solitary confinement in the U.S. might qualify as torture under international law. The leading formulation, in the Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for certain specified purposes, including punishment. Domestic and international courts have generally interpreted the severity requirement fairly strictly (though not as strictly as some recent US officials have done, to be sure), though certainly the dire picture that Gawande paints suggests that at least some instances of solitary confinement might qualify as severe mental suffering.
Some international authorities have addressed the question directly, and these paint a mixed picture. The European Court of Human Rights has rejected several challenges to solitary confinement under Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment. However, while denying particular claims, it has stated that solitary confinement is sometimes prohibited depending on the circumstances. Relevant circumstances include the length of the solitary confinement (indefinite length is prohibited), the extremeness of the isolation (“complete sensory isolation, coupled with total social isolation” is categorically prohibited), the reasons for prisoner’s isolation, and whether the prisoner receives appropriate psychological monitoring and treatment. Likewise, the U.N. Human Rights Committee has stated that “prolonged solitary confinement” may violate Article 7 of the International Covenant on Civil and Political Rights, which forbids torture and cruel, inhuman, or degrading punishment. In general, an international law theory based on “cruel, inhuman, or degrading treatment” might be an easier sell—it’s similar to torture, but less aggravated, and is also prohibited by international law, although (unlike torture) states are not required to criminalize it.
The CAT definition also specifically says torture “does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions,” which would seem to exclude solitary confinement in the U.S. criminal justice system. Still, this exclusion is not supposed to be a blank check for mistreatment of criminal detainees. According to the United States’ own stated reservations upon ratification of the CAT, the “lawful sanctions” provision cannot be read to allow governments to use penal law to circumvent the object and purpose of the Convention. See, e.g., Khouzam v. Ashcroft, 361 F.3d 161, 169-70 (2d Cir. 2004)). And in any event, the prohibition on torture and cruel treatment in the ICCPR, to which the U.S. is also party, includes no such qualification.
Meanwhile, the definition of torture in U.S. federal criminal law almost surely does not apply for a different reason. It covers mental suffering only when that suffering is triggered by (1) physical harm or a threat thereof; (2) drugging “or other procedures calculated to disrupt profoundly the senses of the personality”; (3) threat of imminent death; or (4) threats to others. Solitary confinement may “disrupt profoundly the senses of the personality,” but it is probably not a “procedure calculated” to do so, at least not within the sense probably contemplated by the statute’s drafters. (Note that U.S. constitutional arguments might be more persuasive, especially to U.S. courts, which are not known for their enthusiastic embrace of international human rights arguments. Over at Sentencing Law and Policy, Doug Berman has a recent post asking why there aren’t more constitutional lawyers challenging supermax confinement.)
All that said, of course, this legal question about torture isn’t really the main point of the article—Gawande isn’t suggesting that prison officials be brought up on torture charges, but rather that we rethink the policy of throwing tens of thousands of prisoners each year into solitary confinement. Perhaps solitary confinement is necessary to incapacitate certain highly dangerous, otherwise uncontrollable prisoners, but if Gawande’s picture is accurate, most of those currently in solitary don’t fall into that category. Some are there because of routine disciplinary violations committed while in ordinary prison, for instance. Indeed, Gawande says that most prison officials themselves believe solitary is used excessively, and would reduce reliance on it but for political pressures. And as illustrated by studies of solitary confinement in Britain in the 1970s, the practice is starkly at odds with the objective of rehabilitation, often rendering prisoners completely incapable of functioning in normal society or even in a normal prison upon return—and not all prisoners in solitary are serving life sentences there, so rehabilitation is a relevant concern.
Gawande’s article probably won’t surprise many scholars and practitioners of criminal law very much (indeed, some have been decrying solitary confinement for years). It’s one more illustration of the consequences, unintended or otherwise, of our often harshly overpunitive criminal justice system. But I still think it’s worth a read, and I’m hoping it finds a broad audience.