President Barack Obama on Jan. 25 announced he was ordering an end to most solitary confinement of juvenile prisoners in federal prisons and implementing other reforms recommended by a Department of Justice (DOJ) working group.
In a speech last July to the NAACP national convention, the president had announced he had asked Attorney General Loretta Lynch to lead a review of what he said was overuse of solitary confinement, and to develop strategies for reducing its use.
The newly-released DOJ report concludes corrections facilities may occasionally need to use solitary confinement for safety reasons, but adds the practice should be subject to reasonable limits and employed fairly and only rarely, as a last resort, not the default response. The Bureau of Prisons has reduced by almost 25% the number of federal prisoners in solitary, DOJ notes (using the term “restrictive housing”).
DOJ’s new restrictions on subjecting juvenile prisoners in the federal prison system to solitary confinement were taken from a section of a broader criminal law reform bill (S. 2123) introduced last October with bipartisan backing. Other reforms ordered by the president include: disallowing solitary confinement as a punishment for minor inmate misconduct; reducing maximum and minimum time limits on its use for more serious behavior; increasing the capacity of secure mental health facilities, so more inmates suffering from serious mental illness can be sent there for treatment; ordering wardens to draw up plans to maximize prisoners’ out-of-cell time; developing less restrictive housing units for prisoners nearing release; and publishing system-wide statistics on restrictive housing monthly on the Bureau of Prisons website.
To explain his actions, the president also contributed an op-ed article to the next day’s issue of the Washington Post. It began by recounting the story of Kalief Browder. Starting shortly before his 17th birthday, Browder spent three years in New York City’s Rikers Island jail, two of those years in solitary confinement. While a high school sophomore, he was arrested on charges of stealing a backpack – which he denied – but was never tried.
Unable to post bail, Browder languished at Rikers, where he claimed he was often mistreated by guards and inmates. In jail, he several times attempted suicide. After being released when prosecutors finally dropped charges, he returned home to the Bronx and began attending a community college, but within a few years, hanged himself at his mother’s apartment. The president noted solitary confinement “doesn’t make us safer” but stands as an “affront to our common humanity.”
The changes announced by the president are welcome and overdue, but will directly reach just a small part of the problem. Only a few dozen federal prison inmates are younger than 18; as of last December, the entire federal prison system had fewer than 10,000 inmates in restrictive housing. While the president notes American jails and prisons may hold 100,000 inmates in solitary confinement at any given time, most of them are in state or local facilities.
The real test will be whether the new White House action is followed by greater interest and action by states and localities, and whether DOJ and the Bureau of Prisons perform needed follow-up. Legislators and corrections officials in a growing number of areas have in recent years – whether prodded by litigation or by discovering its inhumaneness and ineffectiveness – begun to seek alternatives to solitary confinement. To help that effort, the latest DOJ report contains numerous examples of general principles and specific policy recommendations they would do well to consider.
Similarly, at the federal level, good intentions at the top are not a practical substitute for effective scrutiny of how well or poorly federal prison officials are carrying out the president’s new directives, and some parts of the plan will require new Congressional funding. Let’s all work for greater progress at both levels.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com