On Monday President Obama announced that federal prisons would no longer use solitary confinement for juveniles or for inmates serving time for low-level infractions.  The move is long overdue–like almost 200 years overdue.  Consider, for example, this assessment of the harms of  solitary confinement in Pennsylvania from de Tocqueville (yes, that one) and de Beaumont from their 1833 work “On the Penitentiary System in the United States, and Its Application in France.”

[A]bsolute solitude, if nothing interrupt it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, it kills.

There are an estimated 100,000 people in solitary confinement in the United States, though no one really knows for sure.  Part of the problem is that there is a lack of transparency about who is in solitary and what evidence gets them there–and, more worryingly, what procedures there are to get them out.  For example, Albert Woodfox, one of the Angola 3, has been in solitary for more than 40 years (a recent ruling that was to grant him release was overturned by the 5th Circuit).  For one particularly Kafkaesque example of misidentification leading to years of solitary confinement in California, check out Lira v. Cate (though, it should be noted, California has also revised its solitary confinement procedures).

The American Correctional Association has recently promulgated new draft standards for the use of solitary confinement (also known as restrictive housing, administrative segregation, and the like) and has been collecting feedback on the standards (full disclosure: I was involved both with an ABA response and a response from law professors).  I am hopeful that state prisons–which hold far and away more prisoners than the federal system–will follow the lead of both President Obama and the ACA and move away from this expensive and psychologically damaging practice.  For the cases that remain, I also hope that prisons provide more transparency about the number of people in solitary and the procedures used to confine them there.

[Cross-posted at The Reality-Based Community]

David Ball

David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.