Wednesday, October 09, 2013

Solitary Confinement: An Exemplum of Cruel & Unusual Punishment

The Story:
Los Angeles Times, October 8, 2013
By Elaine Woo

For most of the past 41 years, Herman Wallace was allowed to leave his 6-by-9-foot Louisiana prison cell for only an hour a day a few times a week. He foresaw no end to the hours and days of his solitary confinement. Convicted in the fatal 1972 stabbing of a prison guard, Wallace maintained his innocence and used his time behind bars to draw attention to abusive prison conditions. His legal appeals brought his freedom last week when a federal judge in Baton Rouge ruled his indictment had been unconstitutional because the grand jury excluded women.

Wallace had only a few days to savor the victory.

One of the ‘Angola 3,’ whose long-term solitary confinement at Louisiana State Penitentiary in Angola became a cause celebre for prison reform advocates, Wallace died of complications of liver cancer Friday in New Orleans, his attorneys said. He was 71.

He had left solitary confinement for a prison hospital ward in June after the cancer was diagnosed. It took two orders from the federal judge and a threat of contempt before prison officials released him Oct. 1. ‘He didn’t say a lot. He was exhausted,’ said Ashley Wennerstrom, a friend of Wallace’s who was waiting for him when he got out. ‘We told him he was free. He nodded and he knew.’

Wallace was never told that the day before he died a grand jury in West Feliciana Parish, north of Baton Rouge, had re-indicted him in the prison guard’s death. ‘Everybody says why indict a man who is about to die?’ Dist. Atty. Sam D’Aquilla said in an interview Tuesday. ‘Because he was a murderer.’

Wallace entered the Angola prison in 1971 after a conviction for armed robbery. He was sent to solitary confinement in 1972 after he and two other inmates were accused of killing Brent Miller, a corrections officer. Of the three, two were convicted: Albert Woodfox in 1973 and Wallace in 1974. Their convictions were largely based on witness testimony from other prisoners, including a repeat rapist who was later found to have helped the prosecution in exchange for a reduced charge.

For nearly every hour of every day for four decades, Wallace and Woodfox were held in separate closet-sized cells. Their contact with the outside world was limited to occasional visits and phone calls. A few times a week they were allowed outdoors to exercise in a narrow pen. [….]

Wallace filled his waking hours with reading and correspondence. With Woodfox and a third inmate in solitary confinement, Robert King, he also organized a chapter of the Black Panthers, the black nationalist group, and began mobilizing other African American inmates against brutal conditions inside Angola, including rampant prison rapes. The Angola 3, as they came to be known, maintained that they were kept in solitary as payback for their political activities. Of the Angola 3, Woodfox remains in solitary. King was the most fortunate: He spent only 29 years in isolation. After his release from prison in 2001, he spoke out publicly about the need for prison reform…. [….]

Wallace spent his final days at the home of Wennerstrom and her husband, Will Veatch, where dozens of friends and family made sure he was never without company. ‘He was in and out of consciousness,’ Wennerstrom said, ‘but he was able to speak a few words. The last thing he said before he died was, “I love you all.”’

Moral & Legal Context:

The Eighth Amendment to the U.S. Constitution:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [emphasis added]

“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]

What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.

Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]—John Irwin, Prisons in Turmoil (Boston, MA: Little, Brown and Co., 1980)

“In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, ‘There are, then, four principles by which we may determine whether a particular punishment is “cruel and unusual.”’ (1) The ‘essential predicate’ is ‘that a punishment must not by its severity be degrading to human dignity,’ especially torture. (2) ‘A severe punishment that is obviously inflicted in wholly arbitrary fashion.’ (3) ‘A severe punishment that is clearly and totally rejected throughout society.’ (4) ‘A severe punishment that is patently unnecessary.’

Justice Brennan also wrote that he expected no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a ‘cumulative’ analysis of the implication of each of the four principles. In this way, the United States Supreme Court ‘set the standard that a punishment would be cruel and unusual, [if] it was too severe for the crime, [if] it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.’” [The third principle above is troubling insofar as it suggests the views of the majority account for society’s “sense of justice.”] 

*       *       *

“We have a heritage in America of torture and brutality, first against slaves and secondly against prisoners. [….] We had legal codes that prohibited cruelty, but which…understood cruelty as excessive whipping and unnecessary biting or tearing with dogs. And when we abolished slavery, we did not abolish it unconditionally, but with the Thirteenth Amendment qualification that slavery is okay for prisoners: ‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.’ And that pretty much ensured that the qualifications in our understanding of cruelty necessary to maintain an effective system of enslavement would continue to distort the understanding of cruelty in the operation of our penal system. As [Colin] Dayan argues, there is no long-established heritage of using the Eighth Amendment to protect the rights of those we hate and fear. On the contrary, there is a long tradition in our courts of limiting and narrowing its application. [….]

We in fact have a tradition of mocking the claim that all men are created equal. We have a tradition of ‘reading down’ any constitutional limitations of cruelty so that they restrain only the most sadistic and egregious acts. The deplorable conditions—the living death of solitary confinement and sensory deprivation—at Guantánamo and elsewhere were pioneered in supermax prisons like California’s Pelican Bay and Florida’s ADX Florence.—Jeremy Waldron in the Foreword to Colin Dayan’s The Story of Cruel and Unusual (Cambridge, MA: MIT Press, 2007). 

*       *       *

“In Furman v. Georgia, Justice Brennan had argued that there could be cruelty worse than bodily pain or mutilation. It was not just ‘the presence of pain’ that was significant in relation to the Eighth Amendment, he argued, but the treatment of ‘members of the human race as nonhumans, as objects to be toyed with and discarded.’ Slave codes in the South had required only that slaves receive clothing, food, and lodging, ‘sufficient to their basic needs.’ Like the slave whose brute body had yet to be protected against unnecessary mutilation or torture, the criminal is reduced in present-day law to nothing but the physical person. [….] The legal nullification of personhood that began with slavery has been perfected through the logic of the courtroom and adjusted to apply to prisoners.”—Colin Dayan

The Lesson, or The Legal, Moral, and Political Imperative:

“There are many ways to destroy a person, but the simplest and most devastating might be solitary confinement. Deprived of meaningful human contact, otherwise healthy prisoners often come unhinged. They experience intense anxiety, paranoia, depression, memory loss, hallucinations and other perceptual distortions. Psychiatrists call this cluster of symptoms SHU syndrome, named after the Security Housing Units of many supermax prisons. Prisoners have more direct ways of naming their experience. They call it ‘living death,’ the ‘gray box,’ or ‘living in a black hole.’ [….]

We tend to assume that solitary confinement is reserved for “the worst of the worst:’ violent inmates who have proved themselves unwilling or unable to live in the general population. But the truth is that an inmate can be sent to the hole for failing to return a meal tray, or for possession of contraband (which can include anything from weapons to spicy tortilla chips). According to the Bureau of Justice, there were 81,622 prisoners in some form of ‘restricted housing’ (code for solitary confinement) in 2005. If anything, these numbers have increased as isolation units continue to be built in prisons, jails and juvenile detention centers across the country. Given that 95 percent of all inmates are eventually released into the public, and that many of these will be released without any form of transition or therapy, solitary confinement is a problem that potentially affects every one of us. [….]

When we isolate a prisoner in solitary confinement, we deprive them of both the support of others, which is crucial for a coherent experience of the world, and also the critical challenge that others pose to our own interpretation of the world. Both of these are essential for a meaningful experience of things, but they are especially important for those who have broken the law, and so violated the trust of others in the community. If we truly want our prisons to rehabilitate and transform criminal offenders, then we must put them in a situation where they have a chance and an obligation to explain themselves to others, to repair damaged networks of mutual support, and to lend their own unique perspective to creating meaning in the world.

We ask too little of prisoners when we isolate them in units where they are neither allowed nor obliged to create and sustain meaningful, supportive relations with others.  For the sake of justice, not only for them but for ourselves, we must put an end to the over-use of solitary confinement in this country, and we must begin the difficult but mutually rewarding work of bringing the tens of thousands of currently isolated prisoners back into the world.” —Lisa Guenther

Recommended Reading:
  • Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press. 
  • Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press. 
  • Bauer, Sane. “California’s Cruelest Prisons,” The Los Angeles Times, October 18, 2012. 
  • Bibas, Stephanos (2012) The Machinery of Criminal Justice. New York: Oxford University Press. 
  • Burton-Rose, Daniel, Dan Pens and Paul Wright, eds. (1998) The Celling of America: An Inside Look at the U.S. Prison Industry. Monroe, ME: Common Courage Press. 
  • Brook, Daniel. “History of Hard Time: solitary confinement, then and now,” Legal Affairs (January/February 2003). 
  • Cohn, Marjorie, ed. (2011) The United States and Torture: Interrogation, Incarceration, and Abuse. New York: New York University Press. 
  • Cusac, Anne-Marie (2009) Cruel and Unusual Punishment: The Culture of Punishment in America. New Haven, CT: Yale University Press. 
  • Dayan, Colin (2007) The Story of Cruel & Unusual. Cambridge, MA: MIT Press. 
  • Dow, Mark (2004) American Gulag: Inside U.S. Immigration Prisons. Berkeley, CA: University of California Press.
  • Gawande, Atul. “Hellhole,” The New Yorker (March 30, 2009). 
  • Greene, Susan. “The Gray Box: An investigative look at solitary confinement,” Acts of Witness: The Ochberg Society for Trauma Journalism, January 24, 2012. 
  • Guenther, Lisa. “The Living Death of Solitary Confinement,” The New York Times, August 26, 2012. 
  • Haney, Craig (2006) Reforming Punishment: Psychological Limits to the Pains of Imprisonment. Washington, DC: American Psychological Association. 
  • Irwin, John (1980) Prisons in Turmoil. Boston, MA: Little, Brown and Co. 
  • Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury Publ. 
  • Jarvis, Brian (2004) Cruel and Unusual: A Cultural History of Punishment in America. London: Pluto Press. 
  • Kalhan, Anil. Truly Civil’ Torture,” Dorf on Law (blog), December 14, 2012. 
  • Kupers, Terry (1999) Prison Madness: The Mental Health Crisis Behind Bars and What Must Do About It. San Francisco, CA: Jossey-Bass. 
  • Pfeiffer, Mary Beth (2007) Crazy in America: The Hidden Tragedy of Our Criminalized Mentally Ill. New York: Carroll & Graf Publishers. 
  • Rhodes, Lorna A. (2004) Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press.            
  • Ross, Jeffrey Ian, ed. (2013) The Globalization of Supermax Prisons. New Brunswick, NJ: Rutgers University Press. 
  • Santos, Michael G. (2006) Inside: Life Behind Bars in America. New York: St. Martin’s Press. 
  • Shalev, Sharon (2008) A Sourcebook on Solitary Confinement. London: Mannheim Centre for Criminology, London School of Economics. Available online: (This contains an excellent bibliography.)
  • Shalev, Sharon (2009) Supermax: Controlling Risk through Solitary Confinement. Devon, UK: Willan Publishing. 
  • Western, Bruce (2006) Punishment and Inequality in America. New York: Russell Sage Foundation Publ.


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