In Hellhole, Dr. Atul Gawande writes:
“Human beings are social creatures. We are social not just in the trivial sense that we like company, and not just in the obvious sense that we each depend on others. We are social in a more elemental way: simply to exist as a normal human being requires interaction with other people.”
If this hasn’t been a universal truth for centuries, it certainly became one, especially where children and child-rearing is concerned, in the 1950’s with research done by Dr. Harry Harlow on rhesus monkeys.
“”Twelve months of isolation almost obliterated the animals socially,” Harlow wrote. They became permanently withdrawn, and they lived as outcasts—regularly set upon, as if inviting abuse.”
The conclusions of Harlow’s research are a part of every student’s required social studies curriculum. The knowledge derived from it is a part of our common font of knowledge. We need not be anthropologists, philosophers, psychologists, or medical doctors in order to suss for ourselves the common sense understanding that social isolation, especially when prolonged, is an extreme form of punishment whose damage on the human and animal psyche is permanent.
Kalief Browder was taken to Rikers prison when he was 16 years old, based on an accusation made by a man who could remember only the vaguest of details about the theft of his backpack. Browder was in isolation for most of his three-year stay at Rikers where he was brutally beaten by guards and other inmates, and starved for food. He committed suicide on Sunday, less than a year after he was released without ever being so much as charged with a crime, much less found guilty of one.
The following was written in The Marshall Project about the year 2014:
As a result of a settlement agreement with the NYCLU in Peoples v. Fischer, on Feb. 19, New York’s becomes the largest prison system to ban the solitary confinement of juveniles for disciplinary reasons. (Pregnant women and prisoners with developmental disabilities are also largely protected from the punishment.) The agreement imposes unprecedented sentencing guidelines, specifying the maximum terms of solitary confinement that may be handed down for various disciplinary infractions. In a Sept. 28 memo to Mayor Bill De Blasio, Corrections Commissioner Joseph Ponte (who previously spearheaded solitary confinement reform in Maine) says solitary confinement of 16- and 17-year-olds at Riker’s Island will be eliminated by the end of the year.
But, in Who Runs Rikers, we find out that:
“In January, New York City’s Board of Correction, which monitors conditions at Rikers Island, passed a new rule: prisoners under the age of 18 can no longer be sentenced to solitary confinement. Citing the detrimental impacts of isolation on young brains, the corrections department publicly touted the new protections.
But in the jail complex, the reality was much different. According to memos obtained by The Marshall Project, Rikers staff found a creative way around the rule: sentencing underage teens to solitary confinement and marking it as “owed time” to be served after their 18th birthdays. In one recent incident, a 17-year-old was sentenced to 20 days in solitary, with the punishment to be carried out when he entered the jail’s adult population. And he was not the only one. According to a letter dated May 22 from Bryanne Hamill, a member of the corrections board, to the corrections commissioner, Joseph Ponte, “this adolescent and many others” have received solitary sentences to be served after they turn 18.”
Elsewhere in our country, specifically in Angola prison, Louisiana, three prisoners were placed in solitary confinement during the late 1970’s. Herman Wallace, Albert Woodfox, and Robert King are The Angola Three. Robert King was released from Angola in 2001 after spending 29 years in solitary. Herman Wallace passed away from cancer in 2013, two days after he was released, and after a very long and contentious fight to be set free. Albert Woodfox is in solitary confinement to this day, 43 years on, with almost no breaks. The Guardian now reports that:
A ruling by the US court of appeals for the fifth circuit in November gave the 68-year-old his greatest hope of release when it overturned his conviction, but he was charged again at state level in February.
On Monday a district court ordered his immediate release and barred the state from holding a second retrial.
Ladies and gentlemen, that’s FORTY THREE YEARS of cruel and unusual punishment for one man. But, as reported by the Guardian, barely a day after a district court ordered Woodfox released immediately:
“… Louisiana attorney general Buddy Caldwell on Tuesday appealed to the fifth US circuit court of appeals in New Orleans to keep Woodfox in prison with the intent to try him a third time.
The appeals court sided with Caldwell, issuing a stay on Tuesday that will keep Woodfox in prison until at least 1pm on Friday, “unless this order is vacated, or renewed indefinitely or to a time certain, by this panel”. It gave Woodfox until Wednesday afternoon to appeal that stay.”
A third trial after 43 years in solitary! The loss of freedom is how we punish people who have committed a certain level of crime. Isolating people for decades for any reason other than medical necessity should long been found to be an unconstitutional practice on the grounds that it meets the constitutional definition of cruel and unusual.
The subsection on “liberal justification” of the Theory of Punishment section of Stanford University’s Encyclopedia of Philosophy informs us about the constraints in preserving a just social system:
There are, however, constraints in the use of penal threats and coercion even to preserve a just social system. Four are particularly important for a liberal theory of punishment.
Punishments must not be so severe as to be inhumane or (in the familiar language of the Bill of Rights) “cruel and unusual.”
Punishments may not be imposed in ways that violate the rights of accused and convicted offenders (“due process of law” and “equal protection of the laws”).
Punitive severity must accord with the relative severity of the crime: The graver the crime, the more severe the deserved punishment. The severity of the crime is a function of the relative importance of the reasons we have to dissuade people from committing it, reasons that will make reference to harms done to victims, to social relationships, and to the security of our rights.
Punitive severity is also subject to the principle of minimalism (less is better), that is, given any two punishments not ruled out by any of the prior principles and roughly equal in retributive and preventive effects for a given offense and class of offenders, the less severe punishment is to be preferred to the more severe.
Look around you. Look at our decaying sense of right and wrong. Look at the number of people who are sitting in our jails. Look at how many, it turns out, were falsely imprisoned. Look at the marked increase in exonerations, including posthumous exonerations. Look at the kinds of behaviors we have criminalized. Look at how severely, relative to what we consider a crime, we mete out punishment. Look at the sheer number of children in the criminal justice system. Look at how many are tried as adults. The purpose of our criminal justice system is certainly one of retributivism exclusively.
American justice as system of negative retributivism ?
The case laid out in Michelle Alexander’s The New Jim Crow clearly exposes the systematic and disproportionate incarceration of American citizens based on race. But overall, America incarcerates more of its citizens now, than at any other time in the past. Its system of justice has gone from one that allows for some rehabilitation to one where proportionality no longer exists, and the institutions charged with overseeing justice no longer have control.
Knowing what we now know about the inability of those in charge to carry out agreed-upon reforms at Rikers, there is no doubt in my mind that the only moral thing to do is immediately close down its juvenile wing, fire any and all personnel associated with it in the present and recent past, and ensure none of them are eligible to work in a correctional facility. While this may seem harsh and unfair to officers who might not have engaged in abusive practices, they pose such a high risk that unjustly barring some is in the overall interest of justice.
Following the recent ruling in the remaining Angola Three case, and in the interest of justice and human rights, all cases of long-term solitary confinements should be immediately ended at Angola prison. A thorough review of all practices at Angola prison done for the purpose of documentation. It is high time Louisiana State Penitentiary’s long history came to an end.
We need to acknowledge that some of our oldest, most flawed correctional institutions just won’t be reformed. With that realization, we must, therefore, shutter them forever.
Updated: 10:00 pm 6/9/2015