Solitary Confinement: Cruel and Usual Punishment in NJ’s Prisons

Hank Kalet | December 8, 2016 | Social
The governor says the state doesn’t use solitary confinement, but is this a matter of semantics that lets New Jersey hide behind words and narrow definitions?

solitary confinement
Now that Gov. Chris Christie has vetoed legislation that would have outlawed solitary confinement in New Jersey’s correctional facilities, it’s a good time to take a step back and reexamine exactly what the punishment entails.

The movies make it look simple. Lock up a prisoner alone in a cell until his time in solitary is done.

But international human- and inmates-rights group say it’s much more complicated than that: Solitary confinement is almost a way of life for some prisoners. Amnesty International defines solitary as isolating inmates for at least 21 or 22 hours per day, either alone or with one or two other inmates. Solitary Watch says the term itself is a misnomer and that “absolute solitary confinement” is rare, and that so-called close confinement, whether for disciplinary, punitive, or protective reasons, “entails a deliberate effort to limit social contact for a determinate or indeterminate period of time.” Other groups point to the physical and psychological harm solitary can do to inmates.

The bill that Christie vetoed on Monday (S-51) hewed fairly closely to those terms and descriptions. It defined isolated confinement as being held “in a cell or similarly confined holding or living space, alone or with other inmates, for approximately 20 hours or more per day, with severely restricted activity, movement, and social interaction.”

S-51 also would have specifically banned the use of solitary confinement on vulnerable populations, including juveniles, seniors, and those with mental health or developmental disabilities — unless it was necessary to prevent harm to an inmate, guard, or others.

The duration of close confinement would have been no more than 15 days, except under limited circumstances. Inmates, under the bill, would have had the right to challenge the placement within 72 hours. Medical and mental health examinations by a doctor or other medical professional would have been required before placement, 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 governor’s veto, some advocates claim, means that several thousand inmates will continue to be subjected to inhumane conditions that are recognized by international human rights groups as torture.

According to Christie, however, this is a non-issue. In his veto message, he called the bill an “ill-informed, politically motivated press release” that attempts to “resolve a problem that does not exist.” Not only does the state not use solitary confinement, but also his administration “ended disciplinary detention as a sanction” in the state’s prisons.

Prison-reform advocates, including the ACLU-NJ, strongly disagree. They say the governor is relying on a narrow definition of solitary confinement and that the practices still in place meet the definition of solitary generally accepted by human-rights groups and mental health organizations. The definition included in the bill vetoed by the governor would have covered the practices currently in place in state prisons and county jails, they argue.

“It doesn’t have to be called solitary to fit the definition in the bill,” said Alexander Shalom, senior staff attorney at the ACLU-NJ.

He added, “We are going to end this barbaric practice. It seems unlikely we will be able to do this while this governor is governor, but in the meantime hundreds of people, including mentally ill people, juveniles, and seniors, will suffer because of this governor’s callous veto.”

According to the Department of Corrections, there were 1,258 inmates in restrictive housing, which includes administrative segregation, management control, protective and temporary close custody and pre-hearing disciplinary measures, as of October. The DOC says privileges are restricted in these units, but “inmates are offered the opportunity to participate in programs, educational studies, recreation, visits, and phone calls.”

The number of inmates in restrictive housing has been falling in recent years, the DOC says, from 1,604 in January 2014 to 1,537 in January 2015, to less than 1,300 today. These figures do not include inmates who may be kept in close confinement in the state’s 21 county jails and detention centers.

The DOC did not comment on the bill as it moved through the Legislature in 2016. It did, however, issue a statement on S-2588 — an earlier version of the bill that failed to get through the Senate Judiciary in 2015. In that statement, the department said it used “sound correctional practices as recommended by the American Correctional Association and the Association of State Correctional Administrators in the evaluation and monitoring of restrictive housing” and that “isolated housing in a traditional sense doesn’t exist in New Jersey.”

The department said the reforms proposed in the 2015 bill, which were carried over to S-51, would have “restrict(ed) the department from responding to ever-evolving trends across the field of corrections.” According to the statement, the department has “implemented changes that provided for additional independent review and established a clear process of returning inmates who are appropriate for general population back to that setting. “

The DOC says inmates placed in restrictive housing retain “the right of due process and review” and that inmates receive hearings before being placed in management control, the most restrictive form of confinement. In addition, the DOC says disciplinary detention has been eliminated in state facilities.

Sen. Raymond Lesniak (D-Union), the chief sponsor of the bill, disagrees. He says the state continues to use methods that have deleterious effects on inmates’ “psyches, mental health, and cause increased bitterness and anger over time.” He also notes that the use of solitary and related confinement endangers the public and runs counter to what the mission of corrections should be: to have those convicted of a crime come out of prison in better shape than they went in.

Lesniak acknowledges that the state has made improvements, but those improvements are administrative and can be overturned by future governors and corrections commissioners. The changes — which he says amount to little more than ending disciplinary separation — do not go far enough.

“That is why a lot of the meat in this bill deals with due process, with mental health examinations, periodic reviews, that go beyond the requirements of the current regulations, and even when they are in the regulations they should be codified in law,” he adds.

Lesniak says he plans to seek a Senate override. He also plans to reach out to the state’s faith community in an effort to flip the votes of at least four Republicans who originally voted against the bill.

The Senate approved the bill 23-16, on a party-line vote; 27 votes are needed to override a veto. If the Senate can override the governor’s veto, which has not happened during the past seven years Christie has been in office, it will go to the Assembly. The bill passed the assembly 45-26, with one abstention and eight not voting; 54 votes are needed for an Assembly override.

The Rev. Charles Boyer, pastor of Bethel AME Church in Woodbury, who has been active with a religious coalition pushing for reform, says the faith community is “behind this legislation.”

“What it is going to take is the faith community engaging in these Republican legislative districts, to stand up and make a convincing case to get that level of compassion across to Republican legislators,” he said. “I believe there are Republican legislators who have a heart and a level of compassion and who, if they are going to be generally concerned about people more so than politics and budget constraints, they will do the right thing.”

The governor did not respond to requests for comment, but in his three-page veto message, he said the DOC already “employs significant safeguards to ensure due process, facilitate periodic reviews of the assignment, and lay out a clear path for return to the general population.” The bill, the governor’s veto message said, “would eliminate DOC’s restrictive housing units, severely limiting DOC’s ability to ensure a safe environment for inmates and correctional staff,” while also “eradicat(ing) procedures established by DOC to ensure inmates placed in restrictive housing units are afforded individualized consideration and proper due process.”

Boyer calls the governor’s response a “political hit job,” and adds that the governor showed little concern for inmates who suffer from isolated and close confinement.

“Administrative segregation is isolated confinement by another name,” he says. “What is disturbing to me is that the governor basically just copied and pasted everything that the corrections community said.”

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