By MICHAEL SCHWIRTZ and MICHAEL WINERIP DEC. 16, 2015
Courtesy of the New York Times
New York has agreed to a major overhaul in the way solitary confinement is administered in the state’s prisons, with the goal of significantly reducing the number of inmates held in isolation, cutting the maximum length of stay and improving their living conditions.
The five year, $62 million agreement, announced on Wednesday, is the result of a lawsuit brought by the New York Civil Liberties Union over the treatment of inmates in solitary confinement in the prisons. For 23 hours a day, 4,000 inmates are locked in concrete 6by10 foot cells, sometimes for years, with little if any human contact, no access to rehabilitative programs and a diet that can be restricted to a foultasting brick of bread and potatoes known at the prisons as “the loaf.”
The changes are expected to reduce the number of inmates in solitary confinement by at least a quarter and usher in a range of reforms, including limiting the time served to three months in most cases and providing the prisoners with certain privileges, like monthly phone calls and group recreation.
“This is the end hopefully of an era where people are just thrown into the box for an unlimited amount of time on the whim of a corrections officer,” said Taylor Pendergrass, the civil liberties union’s lead counsel on the case. “This will not be the end of the road for solitary confinement reform, but we really think it’s a watershed moment.”
The legal settlement caps three years of negotiations between the civil liberties union and the administration of Gov. Andrew M. Cuomo, and comes at a time of intense scrutiny of the state prison system.
In June, two murderers escaped from the Clinton Correctional Facility in Dannemora, N.Y., setting off a nationwide manhunt that cost millions of dollars. But it also exposed serious dysfunction within the State Department of Corrections and Community Supervision that has been documented in a series of articles by The New York Times and The Marshall Project, a nonprofit news organization.
While states like Washington and Colorado have gone further in curbing the use of solitary confinement, both the civil liberties union and the governor’s office say the New York settlement is historic, given the size of the corrections system — it encompasses 54 prisons that hold nearly 60,000 inmates — and how much there was to do after decades of neglect.
“I think this agreement is radical and groundbreaking in ways that we couldn’t anticipate 10 years ago,” Alphonso B. David, the governor’s chief counsel, said. Mr. David said Mr. Cuomo saw the lawsuit as an opportunity to make New York prisons a model for the country.
Even though both sides say they are dedicated to a sweeping reform effort, there are still significant obstacles. Almost two years ago, the state agreed to an interim settlement that eliminated the use of solitary confinement for pregnant women, most developmentally disabled inmates and any prisoner under age 18.
And yet during that time, the number of inmates in solitary confinement has increased. Officials attributed the rise in part to the escape in June, which prompted a crackdown throughout the prison system. More than 50 people have been in solitary confinement for longer than five years. At the same time, the average length of stay in isolation has gone down, to 190 days as of December from 225 days last year.
Another major question is whether the corrections officers’ union, which has great power in the prisons, will go along with the settlement. After the interim settlement was adopted in 2014, the union filed a lawsuit, which is still pending, challenging many of the new policies. Officials with the corrections officers’ union said they had not been included in the negotiations nor had they yet reviewed the details of the settlement.
“Our state’s disciplinary confinement policies have evolved over decades of experience, and it is simply wrong to unilaterally take the tools away from law enforcement officers who face dangerous situations on a daily basis,” the union said in a written statement.
The settlement agreement, which also involved the law firm Morrison & Foerster and Alex Reinert, a professor from Cardozo Law School, must still be approved by the judge in the case, Shira A. Scheindlin, of Federal District Court in Manhattan. The agreement establishes a maximum sentence of three months for most disciplinary violations, except assaults, and 30 days for almost any prisoner who has committed a nonviolent infraction for the first time.
Isolation will no longer be imposed for first time violations for drug use or possession, which in the past accounted for as much as one fifth of the solitary population. The number of infractions punishable by solitary confinement will be cut in half, and violations that once gave corrections officers wide discretion to impose long sentences, such as “disobeying orders,” will now have a maximum of 30 days.
Though conditions will improve under the settlement, privileges for the inmates in isolation will still be highly restricted. For the first time, according to the civil liberties union, inmates will be able to make telephone calls, but only once every 30 days for those in long term isolation.
The corrections department will also begin a pilot program to provide offline tablet computers to inmates, but there are 30 for the entire state system. In the past, inmates in solitary confinement were given one hour of recreation a day, which they spent alone in a chain-linked cage. Under the settlement, they will be allowed to leave their cells and spend their recreation time with others on the solitary block for two hours, three times a week. They will also have greater access to reading materials and be allowed to hang curtains in front of their toilets for privacy. And the settlement prohibits prison guards from using food as a punishment.
“I think it’s symbolic, but I think it will have a significant impact throughout the prison system,” Mr. David said. “We will eliminate the loaf.” Donna Lieberman, the executive director of the civil liberties union, described it as “notorious,” “indigestible” and “worse than not eating at all.”
Section IX, Article D of the agreement says the corrections department has three months to phase out the loaf and replace it with “a nutritious, calorie sufficient and palatable alternative meal composed of regular food.” A report by the civil liberties union called “Boxed In,” which was published in connection with the lawsuit, cited studies that found half of the inmates in solitary confinement were seriously mentally ill; solitary inmates accounted for 34 percent of all suicides in the state prison population; and those in isolation were disproportionately African American.
Tonja Fenton, a plaintiff in the lawsuit who wrote her original legal complaint in pencil from her cell, spent three years in solitary confinement. “I was locked up in a cage and forgotten,” Ms. Fenton, who has since been released, said during a conference call on Wednesday. “You don’t hear any other voices, you speak out loud just to hear yourself. You forget what it’s like to be human.”
According to the report, each year about 2,000 inmates are released directly from solitary confinement into the community without receiving any transitional support. The settlement agreement aims to change that by creating “stepdown” programs, which will provide mental health counseling, job training, education and drug treatment at several prisons including Southport Correctional Facility, near New York’s border with Pennsylvania, which houses only inmates in solitary confinement.
A monitor chosen by the civil liberties union will be able to inspect the prisons to ensure compliance, and the corrections department will be required to publish quarterly status reports to its website. The civil liberties union praised the Cuomo administration for its “extraordinary effort” to work out an agreement.
“No prison system of this size has ever taken on such sweeping and comprehensive reforms to solitary confinement at one time,” said Anthony D. Romero, the executive director of the American Civil Liberties Union. “And if it complies with all the terms within the time frame, New York will undergo an unprecedented transformation.” Correction: December 16, 2015