Solitary confinement is an all too common practice that violates traditional norms and modern human rights standards on cruel and unusual punishment.
Followers of this blog will know the phrase “cruel and unusual punishment”. It’s a phrase that we hear wherever people talk politics. Readers may not know where that phrase comes from or why it still matters in the 21st century.
Some of us, Americans in particular, will guess that the phrase originated in the US Constitution. The phrase does appear in the Bill of Rights, but that isn’t where the phrase first appeared.
Historians believe that the phrase was first used in the English Bill of Rights of 1689. This seminal declaration of human rights limits the powers of the monarch and boosts the role of Parliament. It requires free elections and freedom of speech in parliament. More important for us today is that it defines individual rights. This story will make the case that solitary confinement falls under the banner of cruel and unusual punishment.
“…nor cruel and unusual punishments inflicted.”
In particular, the English Bill of Rights reads: “And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections…do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare… That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.”
This is the first time we see these criminal justice rights on paper. Still, we can infer something from this wording. The document calls them “ancient rights and liberties”. The framers are not saying anything radical or new. These freedoms are customary. They formed part of the common law tradition even before the English nobles passed this law.
As noted, the founders in America used this exact wording in the Eighth Amendment to the US Constitution. We also find it in the Canadian Charter of Rights and Freedoms. The United Nations incorporated the same phrasing in Article 5 of its Universal Declaration of Human Rights. Yet, how does is apply to solitary confinement?
Article 5 Universal Declaration of Human Rights.
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
These precedents show us an ancient tradition of restricting punishment in a civilized country. Given that, suppose that a US federal judge said that a punishment “may press the outer bounds of what most humans can psychologically tolerate”? How should we judge discipline that causes “depression, anxiety, rage, claustrophobia, hallucinations, problems with impulse control, and/or an impaired ability to think, concentrate or remember”?
Wouldn’t this punishment be both “cruel and unusual”? What is this unbearable activity? Waterboarding? Sleep deprivation? Electric shock? No, they are describing solitary confinement.
They are describing solitary confinement
We hear about prisoners placed in segregation all the time. Sometimes it’s as a punishment. Other times, it’s to separate them from the general prison population. The euphemism for this latter reason is “administrative segregation”. Sometimes, it pleases people when the system throws some reprehensible prisoner into “solitary”.
Yet, what does this treatment achieve? We’ve seen that segregation prisoners suffer severe mental illness. Worse still, solitary confinement causes a high number of suicides. Segregation does not improve prison safety or prepare prisoners to return to society. In fact, evidence shows that solitary confinement makes it harder for prisoners to make a fresh start after their release.
Prisons have no effective standards in place around segregation. Prisons are neither accountable nor consistent in how they treat segregation prisoners. Typically, prisoners in seclusion spend twenty-three hours a day alone in a barren cell without so much as anything to read. They get one hour a day outside their cramped quarters, strictly supervised and handcuffed.
Old habits die hard. It’s also a way to save money
Why do prisons still use segregation? It’s partly because old habits die hard. It’s also a way to save money. In the west, beginning in the 1980s, the trend was to get tough on crime and to balance budgets. Prisons handled more prisoners with fewer resources. Voters bought into this but it made it hard to run a decent jail. Prison authorities had no choice but to resort to solitary confinement to keep order. In the US, states have built gigantic “super-maximum security” facilities. These have made a bad situation worse.
We talked about some long-standing human rights norms above. Legal experts have condemned cruel and unusual punishment for centuries. Today, human rights law seeks to end to solitary confinement for most prisoners. Modern standards state that segregation must be the exception, limited to difficult cases, used for a short time and be without undue deprivation.
Some argue that this is “coddling criminals”. The truth is that these reforms are fundamental human rights. Human rights law states that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Legal principles do not intend jail to be a punishment. Courts impose sentences to protect society, denounce the crime and rehabilitate the prisoner.
condemning prison as “punishment” isn’t radical
As we have seen, the condemnation of prison as “punishment” is neither new nor radical. Does your corrections system put prisoners in solitary confinement? Under what circumstances and for how long? Do some research and find out more. If you don’t like what you earn, write to your elected officials and demand change.
We need to learn that even the most hardened criminal is part of the human family.
We always have more to learn if we dare to know.
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