New Jersey could become one of the first states in the country to restrict the use of solitary confinement for prisoners in its state and county corrections facilities, if a bill approved by both houses of the state Legislature is signed by Gov. Chris Christie.
The Department of Corrections says 1,258 state prisoners were in restricted housing, which includes all forms of close or isolated confinement, as of October 18, down from 1,604 in 2014. Figures for county jails are not available. Solitary is used both as a protective measure — to remove inmates who are a danger to guards or other prisoners from the general population — and as punishment for bad behavior, according to advocates and corrections officials.
Its use, however, runs counter to the mission of modern corrections facilities, say advocates, which should be to rehabilitate inmates and prepare them for reentry into their communities. Instead, the use of solitary or isolated confinement exacerbates existing mental heath issues for many inmates and triggers new illnesses for others, they say. This leaves the inmates unprepared for life outside of prison and could endanger the communities to which they will return, advocates argue.
Senate Bill S-51 is an attempt to address these concerns, say its sponsors. The bill would ban the use of solitary confinement unless it is necessary to prevent harm to an inmate, guard, or others, while also prohibiting its use on vulnerable populations, including juveniles, seniors, and those with mental health or developmental disabilities. It also limits its duration to 15 days, except under limited circumstances, while also giving inmates the ability to challenge isolation orders.
“This is a practical bill,” Alexander Shalom, staff attorney for the ACLU of New Jersey, said last week. “It is possible to go from where we are now to what is proposed in the bill. [I]t will make a demonstrable difference in the lives who are suffering.”
Not everyone is on board. While the bill passed both houses of the Legislature, it did so on a strict party-line vote. The bill also has been opposed by the union representing prison guards, which is concerned about the cost and the potential that limiting solitary will make it a less effective punishment. That could embolden prisoners and make guards’ jobs more dangerous.
Representatives of PBA Local 105, which represents the guards, did not respond to calls, but Lance Lopez, then-president of the union, told the Senate Law and Public Safety Committee in March that the bill would require the hiring of at least 150 more corrections officers, along with additional clinicians to facilitate mental health screenings.
PBA Local 105, Lopez said, is not opposed to reform, but wants to make sure that lawmakers focus on “what is best for inmates who are planning to come out and be productive members of society and how best to protect those staff members in the institutions.”
Republicans did not comment during committee votes and spokesmen for the Senate Republicans office said there would be no further comment. The governor’s office has not taken a position and referred questions to the Department of Corrections.
The bill would limit the use of solitary or isolated confinement, also known as close custody, to situations in which corrections facility administrators believe an inmate poses an imminent threat to himself, to other inmates, guards or others in the facility, but only when other less-restrictive interventions are not available. Solitary or isolated confinement is defined as placement in a cell or other holding space that restricts activity, movement, or social interaction for about 20 hours a day. Close confinement can include more than one inmate in the same cell.
Confinement under the bill could only be used for -disciplinary reasons. The inmate would have the right to challenge the placement within 72 hours and every 15 days he is in close custody, though the bill also limits the length of solitary confinements to 15 days. Facility administrators and not guards would be responsible for setting standards and determining whether there are justifications for placing an inmate in isolation.
Inmates would be required to undergo medical and mental health examinations from a doctor or other medical professional before being placed, and daily while in isolation. This is not the case under current state law and the practice varies from jail to jail, advocates say.
The bill would exempt inmates younger than 21 or older than 55, and those with a mental or developmental disability or a serious medical condition from solitary. The same holds for inmates who are pregnant, hard of hearing, or vision-impaired.
The DOC does not take positions on pending legislation, said spokesman Matthew Schuman. However, it has provided what he described as a fact sheet to dispel myths about the use of restrictive housing in the state. The department says inmates in restrictive housing have the right to appeal and access to medical care. They are evaluated before they are placed and have contact with others. Inmates with severe mentally illness are not placed in restrictive units, the DOC says.
The Office of Legislative Services submitted a fiscal analysis to the Legislature that said the new law would lead to higher costs for state and county facilities, primarily for increased staff. OLS, however, said it could not “independently assess the manner in which the bill would alter the operations and resource needs of the Department of Corrections and county jails.”
Advocates who work with inmates, including the ACLU, American Friends Service Committee and religious groups, say that it does not matter what the state calls its program. The descriptions of the prisoners they work with differ very little from solitary confinement defined in academic research.
Shalom said the bill’s time limits are consistent with medical studies, most of which say that confinement of more than 15 days poses mental and physical health risks. And it also recognizes that “there are people who shouldn’t go in” to isolation.
He said concerns about the price tag are overblown when compared with the humanitarian concern of protecting inmates – and, in any case, the bill could cut costs down the road because prisons would be releasing healthier individuals back into the community.
“Ninety-nine percent — more than 99 percent — are going to get out and go back to their communities,” Shalom said. “That’s what the demographics say. They are going to come back to our communities and we have a fundamental question to ask: How do we want them to come back? Do we want them better or more damaged?”
Sen. Ray Lesniak (D-Union), who has been the chief legislative advocate for the reforms, has repeatedly made the same point.
“The cost to society of inmates coming out of prison broken and worse off with mental illnesses and worse off than when they went in that cost is enormous,” he said during a Senate hearing in March.
Nancy Pinkin (D-Middlesex), one of the chief Assembly sponsors, said last week that the research on solitary confinement was “startling,” which is why she agreed to sponsor the Assembly version of the bill. It had been largely discontinued in the United States because of its impacts on prisoners until the early 1980s, when it came back as part of the War on Drugs, she said. Since then, it has been used both as a punishment and as a protective measure. The effects — an increase in violent behavior and self-harm among those who have been in solitary — have been documented by the American Psychological Association, numerous scholarly journals, and advocacy groups like Solitary Watch, she said.
Solitary also costs significantly more in the long run, she added, because of the impacts that it has both on prisons and on the communities prisoners return to once they’re released. So, while restricting solitary may require more social workers and mental health professionals working in the corrections system, there will be savings associated with not inflicting the damage on prisoners associated with closed confinement.
“We’re not trying to rehabilitate them,” she said of the current approach. “And we are not factoring in the impact on mental illness and the impact it has on prisoners and those around them. The upfront cost of this bill may go up, but in the longer term the costs will go down.”
The Rev. J. Amos Caley of the Campaign for Alternatives to Isolated Confinement-NJ, said the bill would set new standards for isolation’s use. Too often, he said, decisions about who is placed in isolation are left to guards, leaving it an arbitrary practice.
Just as importantly, he says, the bill recognizes the immorality of confining someone to small spaces for long stretches of time and depriving them from personal contact.
“Extreme isolation and sensory deprivation, these are tactics of enhanced interrogation and torture,” he said.
Bonnie Kerness, director of the American Friends Service Committee Prison Watch Project, said the bill would bring New Jersey in compliance with international norms on torture and prison treatment, though she admits the bill isn’t perfect.
“You can’t give me a reason for use of isolation as punishment,” she said, adding that the bill is an “effort at chipping away at what violates human rights.”