Over the last decade, the surprisingly common American prison practice of keeping individuals locked in solitary confinement, 23 or 24 hours per day, seven days a week, for months and years at a time, has faced increasing scrutiny. In the early 2010s, people incarcerated in California’s Pelican Bay State Prison Security Housing Unit, one of the nation’s archetypal “supermax” units, staged a series of hunger strikes to protest the extremely restrictive conditions of solitary confinement and the indefinite (and seemingly interminable) durations of their confinement. Ultimately, California prison officials agreed to integrate all 500 people who had been in solitary confinement for more than 10 years continuously at Pelican Bay State Prison into the less-restrictive, lower-security conditions of the general prison population in the state. Ashker v. Governor of Cal., 2015 Settlement. Since the hunger strikes and the Ashker litigation, 45 states have introduced bills to regulate solitary confinement in some way, and 20 states have introduced bills explicitly to limit solitary confinement to 15 days or less. Unlock the Box, Banning Torture, Jan. 2023. These bills build on the Nelson Mandela Rules, adopted by the United Nations General Assembly in 2015, which prohibit prolonged (more than 15 days) and indefinite solitary confinement. While dozens of states have enacted legislation limiting solitary use in the last few years, as of January 2023, only three states had passed Mandela Rule–type legislation limiting solitary confinement to 15 days, and solitary confinement remains common in the United States. At least 25,000 people (3.4 percent of all prisoners) were in solitary confinement across US prisons in 2021, based on jurisdictional self-reports. ASCA-Liman, Time-in-Cell (2022). Using a combination of federal and state records from 2019, the news organization Solitary Watch estimated a higher number of people in solitary confinement in 2023: 122,000, or closer to 7 percent of all prisoners. Solitary Watch, Calculating Torture (2023). Both calculations likely understate the cumulative impact of solitary confinement, however. My own research in Washington state, as well as Bureau of Justice Statistics data, document that as many as one in three people in prison in the United States experiences solitary confinement at some point during their incarceration.
As of May 2023, advocates have a new tool to use in litigating and re-conceptualizing solitary confinement in the United States: the International Guiding Statement (IGS) on Alternatives to Solitary Confinement. Physicians for Hum. Rts. Isr. & Antigone, International Guiding Statement on Alternatives to Solitary Confinement (May 2023); Physicians for Hum. Rts. Isr. & Antigone, Background Brief: Alternatives to Solitary Confinement (May 2023). Two leading international human rights organizations, the Italian Associazone Antigone and Physicians for Human Rights Israel, led a group of experts in mental health and prison law and conditions (including author Reiter), as well as practitioners, gathered from around the globe, including the United States, Argentina, and Norway, to formulate and draft the standards. The signatories ultimately included many of these leading experts and additional international legal figures like Juan Mendez, the former United Nations Special Rapporteur on Torture. Experts contributing to the statement emphasized that placement in solitary confinement is a symptom of wider, systemic problems within prison systems and beyond, so systems seeking to reform solitary confinement need both practical solutions for individuals currently in solitary confinement and broader structural frameworks to address the systemic problems that lead to using (and overusing) solitary confinement. The IGS, therefore, includes both recommendations focused on short-term, readily implementable reforms and proposals focused on long-term, structural reforms, both within incarceration systems, and changes to care and social structures available in the community. Indeed, more easily implementable reforms, the Statement authors argue, ultimately facilitate the longer-term structural reforms.
The IGS, like the Mandela Rules, serves as an aspirational consensus document, laying out what to do both about and instead of solitary confinement. But the IGS also has the potential to serve as a model for states seeking to enact solitary confinement reform or abolition legislation. And the IGS functions as a toolkit for those litigating prison conditions, designing settlement agreements, monitoring prisons, or suggesting reform programs and seeking best practices for new policies. And, like the American Bar Association’s Criminal Justice Standards on “Treatment of Prisoners,” the IGS might also serve as a reference point for acceptable prison conditions standards for litigators. In what follows, we provide background context about solitary confinement litigation in the United States over the last few decades and then highlight four key recommendations of relevance to litigators and policymakers alike, who are seeking to enact prison conditions reform in the United States and elsewhere: recommendations about accountability and oversight, recommendations for alternative measures to reduce and replace solitary confinement, recommendations about individualized care plans, and recommendations to ensure both prison staff competency and well-being.
Solitary Confinement Litigation
Critics of solitary confinement often cite an 1890 U.S. Supreme Court opinion, In re Medley, 134 U.S. 160 (1890), which seemingly dismissed the practice of solitary confinement as brutal and destructive, but the practice has persisted in the United States, facing periodic waves of only limited scrutiny. In fact, in 1891, just one year after condemning the practice of solitary confinement in Medley, the Supreme Court upheld the practice, in a different procedural context, in McElvaine v. Brush. 142 U.S. 155 (1891). In the 1970s, when prisoners’ rights litigation exploded in the United States, solitary confinement frequently came up as one of a constellation of conditions of confinement challenged in statewide class action lawsuits, but the Supreme Court never conclusively declared the practice to be an unconstitutional violation of the Eighth Amendment prohibition against cruel and unusual punishment. Since the 1970s, the Supreme Court has directly addressed solitary confinement only three times. First, in Wilkinson v. Austin, 545 U.S. 209 (2005), a case challenging an Ohio “supermax” facility built with 502 solitary confinement beds, the Court upheld Ohio’s severely constrained procedural protections as adequate to protect individuals’ liberty interests in not being placed in solitary confinement. Second, in Davis v. Ayala, 576 U.S. 257 (2015), Justice Kennedy explicitly invited challenges to the conditions of long-term solitary confinement in which respondent Hector Ayala had been housed while on death row. Third, in November 2023, three judges filed an unusual eight-page dissent to the Court’s refusal to hear a case about the constitutionality of keeping someone in solitary confinement without access to exercise for more than three years. Johnson v. Prentice, 601 U.S. __ (2023).
While the US Supreme Court has avoided evaluating the everyday details of solitary confinement in US prisons, federal district courts have more carefully considered and constrained the use of solitary confinement in U.S. prisons, starting with a landmark district court case in California, Madrid v. Gomez. 889 F. Supp. 1146 (N.D. Cal. 1995). In Madrid, Judge Henderson forbade the placement of prisoners with serious mental illnesses in solitary confinement, and hundreds of district courts have since referenced and upheld this principle. In Westefer v. Snyder, 725 F. Supp. 2d 735 (S.D. Ill. 2010), Judge Murphy ordered the Illinois Department of Corrections to hold a hearing for every prisoner held in the state’s supermax facility to evaluate whether each prisoner belonged in solitary confinement. Other district court cases, like the aforementioned Ashker case, as well as a case in Illinois, Coleman v. Taylor, Case No. 1:15-cv-05596 (N.D. Ill, 2015), have brought judicial and media attention to the extremely restrictive conditions of confinement in supermaxes and solitary cells in state prisons, even if both cases were ultimately closed or dismissed without actually condemning the ongoing use of solitary confinement in either state.
Two things are clear from this litigation context. First, prison conditions litigation in the United States has resulted in meaningful, but limited, reforms to the practice of solitary confinement; public scrutiny, international pressure, and legislative changes are critical additional tools in reform efforts. Second, lawyers have repeatedly challenged the practice of solitary confinement in courts across the United States over the last 50 years, but the practice has persisted; additional resources are critical to establish the harms of solitary confinement and to provide constructive alternatives that might be proposed in litigation and legislation alike. The International Guiding Standards on Alternatives to Solitary Confinement provide exactly these kinds of resources.
Accountability and Oversight: Controlling, Mitigating Harm
First, the IGS includes a number of provisions, particularly in Section A, about accountability and oversight of conditions of isolation, which could be useful, especially, to include in reform legislation, or in settling and monitoring provisions. Section A includes important innovations and specificity about best practices measures for accountability, including calling for more precise, individualized records about who is in solitary and about what steps have been taken to avoid using solitary, especially discouraging automatic placements (Section A3), as well as better institutionalization and regularization of on-site visits by judges involved in solitary confinement cases (Section A8).
Although there has been increasing attention to solitary confinement and its harms over the past few years, policymakers and reformers often lack basic knowledge about who is in solitary, why, for how long, and, generally, how widespread the practice is. Underprivileged groups and vulnerable populations tend to be especially likely to end up in solitary confinement, but also especially invisible without basic data about solitary confinement placements. And even when correctional systems do produce those data, independent parties, especially judges, rarely take the time to verify the accuracy of those data, or to become familiar with the reality of solitary confinement.
The Pelican Bay hunger strikes and subsequent reforms, mentioned above, provide an important example of the relevance of these IGS accountability recommendations. In the United States in the 2010s, no one had an accurate estimate of how many people were in solitary confinement at any given time. When I was researching California’s solitary confinement practices, the state could not even provide data to me about solitary confinement use in their one, highest security prison, the infamous Pelican Bay. State officials told me they “count beds not people.” K. Reiter, 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement (Yale University Press, 2016). Following massive hunger strikes organized from within Pelican Bay, a reporter obtained data that, as of August 2011, more than 500 people had been in solitary confinement continuously in Pelican Bay for more than 10 years. J. Small, Under Scrutiny, Pelican Bay Prison Officials Say They Target Only Gang Leaders, 89.33 KPCC S. Cal. Radio (Aug. 23, 2011). That single piece of data was ultimately instrumental in defining a class of 500 prisoners who brought successful litigation to reform the conditions of their confinement. Over the course of the litigation, advocates (and the public) learned that all of these 500 prisoners had been labeled as gang members—a label disproportionately imposed on Latino prisoners in California. Many of these labels lacked adequate evidence and justification. Indeed, a growing body of U.S. prison data, painstakingly accessed through research and public information requests, suggests that solitary confinement is disproportionately imposed on racial-ethnic minorities. In my own recent research into patterns of solitary confinement use in Washington state—a state that keeps remarkably and unusually good data about their punishment practices—I have found that Latino prisoners both are over-represented in solitary confinement and serve longer sentences in solitary confinement than other racial-ethnic groups. In other words, both litigation and research increasingly show that solitary confinement in the United States is disproportionately imposed on underprivileged groups: racial-ethnic minorities, many of whom are presumed to be gang members based on limited, nonexistent, made-up, or corrupt evidence. Importantly, the IGS distinguishes between vulnerable populations, like individuals with mental disabilities, pregnant women, and children, and underprivileged groups, like racial-ethnic minorities and indigenous people (in footnote 6), further highlighting the disparate impact of solitary confinement on multiple subgroups.
The International Guiding Statement requirements for information about whether individuals in solitary belong to vulnerable populations or underprivileged groups, reasons for their placement in solitary, the kinds of coercive measures used in solitary confinement (like mechanical restraints and uses of force), and steps taken to avoid solitary are exactly the kinds of information that California reformers (and increasingly researchers) are uncovering through years of organizing, litigation, and analysis. Had such information been readily available sooner, the immense and disproportionate harm hundreds of men suffered over decades in solitary confinement in Pelican Bay could have been identified and prevented. Put another way: Even the most basic details about solitary confinement are often missing, but once we have them, they become critical resources in reform efforts. The International Guiding Statement provides clear benchmarks for exactly what kinds of information we need.
On the one hand, the Pelican Bay reforms represent the power of more accountable records, especially as detailed in Section A3. On the other hand, though, the limitations of these reforms remind us of the frequent inadequacy of judicial oversight of solitary confinement. Indeed, despite nearly 10 years of litigation in California to curtail the use of long-term solitary confinement, a researcher presented disturbing data at a legislative hearing this spring: Average lengths of confinement in solitary in California have not significantly decreased over the last 10 years, and new segregation units with new names in new prisons have largely replaced the shuttered solitary units at Pelican Bay. California Mandela Act (AB 280) Immigrants Defense Advocates Legislative Briefing, Mar. 15, 2023. More judicial oversight—both visiting prisons to see actual conditions of confinement and talking with specific individuals in solitary confinement—is critical to curb the chronic problem of prison officials resisting reform, especially to solitary. Section A8 of the International Guiding Statement highlights the importance of more thorough judicial oversight of solitary confinement units, especially in the course of litigation. California is a textbook model of why this is absolutely critical.
The first step in tackling violations of either constitutional or human rights is often exposing those violations and tracing their implications. Solitary confinement is often, itself, a violation, but it also opens the door for other violations. In sum, the kinds of data collection, reports, and ongoing review described in Section A of the International Guiding Statement are critical to better controlling solitary confinement, mitigating the harms of the practice, and ultimately institutionalizing alternatives.
Alternatives: Reduce, Then Replace Solitary
Second, the IGS provides concrete suggestions for alternatives to solitary confinement, especially in Section B on “Alternative Measures.” Specifically, Section B provides a road map for both immediate and intermediate steps to reduce and finally overcome solitary confinement use. It addresses common reasons that people are placed in solitary confinement, from mental health crises and acts of self-harm to individual requests from people afraid for their own safety, and suggests pathways to alternatives, like provision of individualized care plans including timelines for removal from solitary confinement, development of investigative bodies with the power to transfer people out of solitary confinement and into care-oriented facilities, and use of less-restrictive conditions of confinement for people who are endangered but not dangerous. In other words, this section provides specific policy suggestions for minimizing friction between people in incarceration settings and staff, for responding to violence, and for preventing self-harm. These recommendations can be a resource and model, especially for organizations seeking to improve mental health treatment for incarcerated people, like Protection & Advocacy Systems (P&As) and disability rights agencies, which often advocate for improved mental health treatment for people in prison. See Protection and Advocacy’s Role in Prison Litigation, Nat’l Disability Rts. Network (Oct. 5, 2018).
Individualization: Implementing Responsive Care Plans
Third, the IGS includes a number of recommendations about managing specific individuals in solitary confinement, especially in Section C on Individualized Care Plans. Once jurisdictions and institutions understand who is actually in solitary confinement, why, and for how long, and then make efforts to reduce these populations and provide alternative housing options, they often find that at least some of the people left in solitary confinement present genuine challenges to management, personal safety, and institutional security. In some cases, people remaining in solitary confinement are especially hard to categorize or care for (like the gravely ill, the gender nonconforming, pregnant females, etc.). In other cases, they are especially dangerous (like having a long sentence and feeling like they have “nothing to lose”) or especially endangered (vulnerable for some reason). These most challenging cases often end up in solitary confinement precisely because existing policies and procedures do not make sense for them. Each one has some unusual or unique problem, status, or way of interacting. In my work studying solitary confinement in the United States and Europe over more than a decade, I have met a number of individuals, each of whom presents an acute management challenge in prison, leaving prison staff at a loss about how to respond. For instance, I met a person brilliant at developing escape plans, including carving keys from readily available materials in their cell. I met a person who regularly smears their own excrement in their cell, and one who bangs their head repeatedly against their cell wall. And I met a person who had been incarcerated since they were a teenager, had a life-without-parole sentence, described feeling as if they had nothing to lose, and attacked staff at every opportunity.
In these cases, prison officials describe solitary as a case of last resort. Still, whatever restrictions a prison system imposes on the most challenging prisoners are potentially contagious—many less-challenging prisoners quickly get caught up in highly restrictive conditions of confinement. In other words, an argument of “last resort” quickly becomes more of an “automatic option” of convenience. Instead, each of the acutely challenging individuals I referenced requires an individualized care plan developed in collaboration with health professionals that addresses their unique circumstances in a transparent, responsive, and compassionate way, with the goal of ultimately re-integrating the individual into less-restrictive conditions of confinement. These are exactly the kinds of care plans Section C of the IGS describes.
In rule-bound, highly restrictive systems, individualization can be scary, but, in my own research, I have seen incredibly simple, surprisingly minimally resourced care plans be transformative for people in solitary confinement. For instance, one man who frequently created loud noise in his cell—screaming and banging his head, disrupting incarcerated neighbors and staff alike—received a squishy foam ball to keep in his cell and throw at the wall as an alternative means to express frustration. Another, who would regularly destroy property in his cell, received soap and dull tools with which to carve the soap into sculptures, and he ceased committing daily rule violations. At first, staff were uncomfortable with providing a “privilege” like a foam ball, or extra bars of soap, to just one person and not everyone. But trained health care professionals worked in collaboration with security staff to pilot these programs and document the results. These small, incremental resources, responsive to the specific interests of individuals, whether sports or sculpting, represent the foundational step of the kind of individualized care plans Section C of the International Guiding Statement envisions. Importantly, these kinds of care plans—a foam ball, a bar of soap, an extra book—are hardly resource-intensive. They can be implemented quickly and cheaply, and they make a huge difference, not only to individuals, but to the people and institutions managing those individuals. To be clear, however, providing one individualized resource, like a foam ball or an extra bar of soap, is not sufficient for re-integration into the general prison population or reform of inhumane policies. Under the IGS, providing individualized resources would constitute just one step towards structural change focused on rehabilitation and emancipation.
Section C provides further guidance on how to institutionalize care plans for anyone in prison needing individualized treatment, moving from giving someone a foam ball or a bar of soap to reintegrating them into the general prison population, and ultimately society. For instance, Section C2 suggests creating concrete timelines for reintegration, review by monitoring bodies, and scheduled meetings about care plans. In another example, I have seen prison officers work with health care professionals to develop a care plan for an individual who had been in solitary confinement for years, and who often refused to even leave his cell to shower or for time in a solitary exercise yard. Correctional officers observed that this individual liked to read, so they developed a plan to regularly engage him in conversation about specific books and to provide books to him upon request, working up to bringing him out of his cell more regularly, with the ultimate goal of transitioning him into the general prison population. Attending to basic human needs, as Section C of the IGS recommends; providing even limited resources responsive to an individual’s interests; and continuing to engage and revise these attentions and provisions turn out to be incredibly effective management tools. More importantly, institutionalizing these kinds of human individualizations counters the fundamentally identity-stripping nature of harsh solitary confinement conditions, building a culture receptive to more humane and effective alternatives.
Prison Staff Partners: Investing in Competency, Well-Being
Fourth, the IGS recommends measures to ensure both prison staff competency and well-being in Section D. Again, these recommendations might be particularly useful to lawyers monitoring prisons, designing settlement agreements to improve conditions, or otherwise working on reform initiatives and ways to engage prison staff as partners rather than adversaries in this work. Section D acknowledges that prison staff often lack appropriate training, supervision, and resources for managing challenging people in prison. For instance, prison staff might label “self-harm” as “manipulative” or “attention-seeking” absent both training in recognizing indications of mental illness and treatment resources to address mental health challenges. Especially in solitary confinement units in the United States, prison staff with limited training (usually a few weeks to a few months and no requirement for even a four-year college degree) are often left to manage people who are so seriously mentally ill that psychiatric hospitals (staffed with people with advanced professional and graduate degrees) refuse to accept them. Acknowledging and addressing the lack of training and care resources is a critical aspect of solitary confinement reform.
Increasingly, research also documents the health and well-being harms experienced not just by people living but also by people working in prison (and especially in solitary confinement units). Recent research suggests prison staff have higher rates of chronic disease and depression and lower life expectancies than the general population. But interventions to improve correctional culture, especially the most restrictive conditions in which prisoners live and staff work, like solitary confinement, can improve staff as well as prisoner well-being. Cyrus Ahalt et al., Role of a US–Norway Exchange in Placing Health and Well-Being at the Center of US Prison Reform, 110 Am. J. Pub. Health S27 (2023). A number of prison systems across the United States, including in California, North Dakota, Oregon, Pennsylvania, and Washington, are currently investing in initiatives to implement Scandinavian punishment practices in American prisons, often focusing especially on the well-being of incarcerated people and staff in solitary confinement. Section D of the IGS provides concrete examples for other prison systems that wish to collaborate with prison staff to improve well-being, including training in de-escalation techniques, providing secondary trauma care for staff, and focusing on replacing punitive approaches with therapeutic approaches.
Finally, an appendix to the IGS also outlines five “steps for stopping the solitary confinement pipeline” that synthesize many of these proposed interventions: reduce the prison population, prevent undue and disproportionate criminalization of underprivileged groups, implement health and welfare safeguards, mainstream the normalization principle, and ensure the right to health for all.
Conclusion: Bolstering Reform
In sum, the International Guiding Statement on Alternatives to Solitary Confinement represents a new resource for lawyers and policymakers engaging in solitary confinement reform—whether through litigation, monitoring, or policy drafting. We hope that the IGS will increasingly be taken into consideration by international human rights bodies as a reference point. Although not binding, the IGS does provide concrete examples of and carefully reasoned justifications for reforms that are already percolating in prison systems across the United States.