In late January, President Obama announced historic changes in how the federal prison system uses solitary confinement—or “segregation” as it is euphemistically called within Massachusetts’ prison system. He cited research showing that the practice can lead to “devastating, lasting psychological consequences.” Solitary confinement, he said, “doesn’t make us safer. It’s an affront to our common humanity.” The reforms stem from a Department of Justice (DOJ) study that sets forth best practices for correctional facilities in general, and made specific recommendations for the federal Bureau of Prisons.
President Obama acted at the federal level, but he does not stand alone. States across the country have reduced their reliance on solitary confinement—and in the process improved the prison climate and inmates’ prospects for re-entering successfully into their communities. Yet Massachusetts has stood on the sidelines, failing to reform its use of disciplinary segregation (punishment for violating prison rules) or administrative segregation (removal from the general population for non-disciplinary reasons). While many think only the “worst of the worst” are in solitary, in fact mentally ill prisoners are often sent there for non-violent offenses such as refusing a direct order or disruptive conduct.
Indeed, Massachusetts is one of a handful of states with disciplinary segregation sentences of up to ten years per offense. That’s up to ten years in the Departmental Disciplinary Unit (DDU), a prison within a prison, in a cell the size of a parking space, with only five hours a week out of your cell in a small outdoor cage that looks like a dog run. No rehabilitative programs and no hope of early release, no matter how well you behave. Conditions are just as harsh for the hundreds of state and county prisoners held in “administrative segregation.” They may be the victim of a rape, waiting for an out of state transfer, under investigation, or in danger from other prisoners.
What can be done to change this state of affairs? It’s actually not too complicated. The DOJ report provides a roadmap, and Prisoners’ Legal Services of Massachusetts recently wrote a letter to Governor Charlie Baker outlining concrete next steps:
- End long, fixed disciplinary segregation terms. The maximum disciplinary segregation terms in the federal BOP for the most serious offenses will be reduced from 1 year to 60 days for the first offense. Massachusetts’ 10 year DDU sentences appear medieval by contrast.
- Use administrative segregation only when necessary and only as long as necessary. The DOJ recommends that administrative segregation not be used “unless correctional officials conclude, based on evidence, that no other form of housing will ensure the inmates safety and the safety of staff, other inmates, and the public.” In Massachusetts, prisoners are sent to “the hole” at the whim of prison administrators, often for good reasons but not always. Their review normally consists of a staff person coming to the cell and informing the prisoner of their status.
- When segregation is truly necessary, provide social contact and rehabilitation. As things stand, Massachusetts prisoners who are considered too dangerous for the general prison population are warehoused with minimal social contact. This is a recipe for disaster.
- Provide incentives for good behavior. Reward prisoners in isolation for good behavior by allowing early release from segregation for those who comply with prison policies and do not act disruptively.
- Bring people out of segregation before release to the community. Prisoners traumatized by social isolation are set up for failure. The DOJ recommends that prisoners not be released directly from segregation to the street, unless there is a compelling reason. All of us who share grocery aisles and ride the T with ex-prisoners see the wisdom of this.
- Exclude the most vulnerable from segregation. The end of solitary confinement for juveniles in federal custody grabbed most of the headlines, though its impact is small given the relatively few juveniles held by the BOP. Massachusetts does not house those under 18 in solitary confinement. Given what we have learned in recent years about brain development, though, perhaps we should exclude those from 18-24 as well. The new federal policies also exclude from segregation those with serious mental illness, absent an immediate danger. In addition, pregnant and post-partum women will no longer be held in federal solitary confinement, and no federal prisoner will be placed in solitary solely because they are Lesbian, Gay Bisexual, Transgender, Intersex or their appearance does not conform to traditional gender expectations. Massachusetts does not have these commonsense rules on the books.
The proposed changes could not only save money, but also protect the interests of correctional staff. First, Massachusetts now spends $56,000 per year to house a male prisoner in maximum security general population. Per-prisoner costs in segregation are likely to be $100,000 or higher. What is really at stake here is a shift in resources from segregation to rehabilitation. The additional payoff in reduced prison violence and reduced recidivism will save far more taxpayer dollars in the long run. Second, these reforms would not require the release of dangerous prisoners–merely that they be given social contact and a chance at change. The current cycle of conflict, punishment, more conflict, and more punishment is not working for Corrections Officers. COs in Massachusetts have a suicide rate around six times higher than the rest of the population.
The reforms outlined here are contained in legislation introduced by Sen. Jamie Eldridge and Rep. Elizabeth Malia, S.1255/H. 1475. But the bill is currently ensnared in the machinery of the legislative process. We don’t need to wait for the legislature to do the right thing, if it ever does. Like President Obama, our chief executive has the capacity to implement these changes. Massachusetts cannot afford to be left behind as the nation rethinks solitary confinement.
Daniel S. Medwed is a professor of criminal law at Northeastern University Law School, and a legal analyst for WGBH News.
Bonnie Tenneriello is a staff attorney at Prisoner's Legal Services of Massachusetts.