Prison reform advocated scored another major victory last month, when the New York Civil Liberties Union reached a settlement agreement with the State of New York to make significant changes to how New York uses solitary confinement (the judge’s approval is still pending). At the time of the agreement, it is estimated that there were roughly 4,000 prisoners in New York currently in solitary confinement. Under the terms of the proposed settlement, around 1,000 of those prisoners will be removed from solitary confinement and placed in less restrictive housing, though not necessarily released back into the general prison population. In addition, new restrictions will be placed on the use of solitary confinement going forward, including provisions:
(1) Limiting the reasons a prisoner can be placed in solitary confinement
(2) Limiting the amount of time a prisoner can spend in solitary confinement
(3) Prohibiting placing pregnant women in solitary confinement except in “exceptional circumstances”
(4) Ending the use of food as punishment for prisoners in solitary confinement.
These changes follow similar reforms to the use of solitary confinement in other large states over the past year, including Illinois and California. Even so, the use of solitary confinement will continue to impact tens of thousands of inmates in the United States over the coming years, and reform advocates will almost certainly continue to push for strictly limiting the practice which has been well documented to drive prisoner’s to despair, madness, and even death. Such observations about America’s prisons go back as far as Alexis de Tocqueville’s famous book “Democracy in America” in the 1820s.
One beacon of hope, however, is that the Supreme Court may take up challenges to the practice in the coming years. This belief is spurred by a concurring opinion authored by perennial swing vote Justice Anthony Kennedy in the case Davis v. Ayala in June of 2015. Though the case itself did not address solitary confinement (it focused on jury selection), Justice Kennedy’s concurrence railed against the plaintiff’s long imprisonment and the practice of solitary confinement in general, all but inviting challenges under the 8th Amendment’s prohibition on Cruel and Unusual Punishment.