By: Zinaida Carroll*

On March 15, 2024, Charles Leo Daniel was found dead by suicide in his solitary confinement cell at the Northwest ICE Processing Center in Tacoma, Washington.^[1] Mr. Daniel had been held in solitary confinement for almost four years according to federal data––the second-longest sentence of solitary confinement in immigration detention.^[2] The public outcry following Mr. Daniel’s death is one example of how the realities of solitary confinement in immigration detention and criminal incarceration have entered the consciousness of those who are otherwise untouched by these systems.^[3]

Solitary confinement has been defined by the United Nations as confinement for 22 hours or more in a day without meaningful human contact.^[4] “Segregation” refers more generally to the separation of inmates from general population to maintain power and control over inmates, and includes types of confinement that may not rise to the level of 22 hours a day without human contact, but leads to equally harmful impacts.^[5] Often, these terms are used interchangeably.^[6]

In segregation, inmates experience sensory deprivation, lack of human interaction, and physical restrictions that are clinically recognized to cause “anxiety, insomnia, hallucinations, paranoia, decreased brain function, withdrawal, and sensitivity to external stimuli.”^[7] Segregation has significant physical health impacts on inmates such as deteriorating eyesight and joints.^[8] As Mr. Daniel’s case illustrates, segregation can have catastrophic mental health outcomes including increased risk of self-harm and suicide.^[9] For example, in Texas prisons, 25% of suicides occur in segregation, whereas only 2.7% of the state’s prison population is held in segregation.^[10]

State Movements to Reform Segregation

Since 2019, there have been waves of state legislation to reform segregation and solitary confinement. Twenty-eight states introduced legislation in 2019, and twelve states, including Minnesota, passed legislation.^[11] These states include Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. In 2021, New York passed the historic HALT Act.^[12] In 2022, Colorado passed a bill to restrict the use of restrictive housing.^[13] The Department of Corrections in several states have also instituted reforms to limit the use of segregation, and in some cases, eliminate solitary confinement.^[14]

New York and New Jersey’s laws are the most expansive.^[15] The New York law institutes requirements for conditions of confinement in segregation and access to programming, recreation, and services, and creates protections for those with mental illness.^[16] Further, New York went beyond any state to limit confinement in segregation to fifteen consecutive days and no more than twenty total days within a sixty day period except in extreme circumstances based on the Mandela rules.^[17]

The New Jersey law limits the length of segregation to 20 consecutive days for all inmates, and bans placing vulnerable populations in segregation except under limited circumstances.[18] Vulnerable populations are defined as inmates who are 21 years old or younger; are 65 years old or older; have a disability based on a mental illness, a history of psychiatric hospitalization, or who has exhibited self-harm behaviors; have a developmental disability; have a serious medical condition that cannot be treated in segregation; are pregnant, postpartum, or have recently suffered a miscarriage or terminated a pregnancy; have a significant auditory or visual impairment; or are perceived to be lesbian, gay, bisexual, transgender, or intersex.

Colorado also banned restrictive housing for juveniles and adults with serious mental illness and specific health conditions.^[20]  New Mexico banned segregation for minors, pregnant people, inmates with serious mental illness.^[21]

The Use of Segregation in Minnesota

In 2019, Minnesota passed legislation requiring the Commissioner of the Department of Corrections (DOC) to report data to the legislature regarding (1) the number of inmates placed in segregation during the previous year; (2) the ages of inmates placed in segregation; (3) the number of inmates transferred from segregation to a mental health unit; (4) disciplinary sanctions by type of infraction; (5) the lengths of terms served in restrictive housing, including terms served consecutively; and (6) the number of inmates by race in segregation.[22] The legislation also touched on vague requirements for conditions in segregation (“[Facilities] shall provide living conditions that are approximate to those offenders in general population, including reduced lighting during nighttime hours.”).[23] The legislation also attempted to create more protections for inmates who are experiencing mental illness by instituting a “mental health screening” requirement, whereby a health services staff member “screens” an inmate within 24 hours of them being placed in segregation, and by requiring a staff member to “perform a daily wellness round in the restrictive housing setting.”[24]

The data reporting requirement has led to more visibility as to the state of the use of segregation in Minnesota detention facilities. However, the numbers themselves are illustrative of how the legislation, while ostensibly aimed at combating the harms of segregation, has not proved useful in that regard. 2019 was, at the time, a record year for the number of times inmates were sent to segregation.^[25] Since 2019, the number of inmates sent to segregation has only increased.[26] In 2022, the reported number of segregation sentences increased to 9,461.^[27] Currently, detention facilities in Minnesota regularly and egregiously violate the United Nations’ “Mandela Rules” which limit solitary confinement to fifteen days.^[28] In 2016, DOC decreased the maximum sentence to segregation from two years to 90 days.^[29] However, just a week after the segregation reform law was passed, DOC increased the maximum sentence up to 360 days.^[30]

At Oak Park Heights, the “Administrative Control Unit” (known as the ACU or “the hole within the hole”) separates inmates from any visual or auditory contact with other inmates for almost 23 hours a day.^[31] One inmate’s medical records showed his descent into psychosis over the decade he spent in the ACU, devolving into the inmate spreading his feces around the cell.^[32] This policy of placing inmates in extreme isolation for long periods of time is not reformed by the 2019 legislation.

The Effects of State Legislation Reforming Segregation

Other state’s experiences with reforming segregation are illustrative of how policy changes can create an appearance of progressive change while in reality having minimal effect or unanticipated consequences on the lives of those affected by segregation.

Nebraska ended the use of solitary confinement as defined by the Mandela Rules.^[33] However, a report by the Inspector General of Corrections about the use of segregation found that Nebraska prisons are not following the newly revised laws prohibiting solitary confinement and limiting segregation.^[34] In Colorado, advocates have recognized the difficulty in fully implementing the July 2022 law’s protections for people with mental health needs.^[35] Currently, inmates experiencing mental health crises are turned away from hospitals and other healthcare facilities, leading staff at prisons and jails to view segregation as their “only option.”^[36]

The Washington Department of Corrections partnered with the Vera Institute to implement a number of reforms to segregation including “(1) building so-called “nature imagery rooms” to play videos of outdoor spaces, (2) eliminating punishments for self-harm, and (3) conducting daily cell-front wellness checks.”^[37] An independent report found, based on 183 in depth interviews with inmates and staff, that these changes “not only resulted in limited successes but also generated new conflicts.”^[38]

Given the challenges in implementing segregation reform, it is important that states draft legislation that centralizes the real-life implications of their proposed language on inmates. In formulating legislation moving forward, legislators should speak directly with those who are impacted by segregation to determine the best path forward. Given the documented lack of meaningful change to the use of segregation in Minnesota since the enactment of the 2019 law, much more must be done in Minnesota to reduce and ultimately abolish this harmful practice.

** Zinaida Carroll is a staff member of JLI Vol. 42.

^[1] Nina Shapiro, Man Who Died at WA Detention Site Was in Solitary for Years, Researchers Say, Seattle Times (Mar. 15, 2024, 12:25 pm), https://www.seattletimes.com/seattle-news/law-justice/man-who-died-at-wa-detention-site-was-in-solitary-for-years-researchers-say/.

^[2] Id.

^[3] See Grace Deng, Calls for Federal Investigation Into Tacoma Detention Center Mount Amid Detainee Death, WA State Standard (Apr. 1, 2024, 4:00 am), https://washingtonstatestandard.com/2024/04/01/calls-for-federal-investigation-into-tacoma-detention-center-mount-amid-detainee-death/ (“Prominent politicians in Washington are calling for an investigation into overuse of solitary confinement at a federal, privately-run immigration facility in Tacoma after the death of [Mr. Daniel].”). In 2016, the StarTribune published a four part series called “Way Down in the Hole” examining the use of segregation and solitary confinement in Minnesota jails and prisons, increasing attention to the use of the practice in Minnesota across news outlets and eventually leading to the passage of a bill to reform the use of segregation. See Andy Mannix, Extreme Isolation Scars State Inmates, StarTribune (Dec. 4, 2016), https://www.startribune.com/excessive-solitary-confinement-scars-minnesota-prison-inmates/396197801/#/ (part one of the series).

^[4] G.A. Res. 70/175, Rule 44 (Dec. 17, 2015).

^[5] See Mannix, supra note 3 (discussing the term “seg” or “segregation”).

^[6] See id.

^[7] Andreea Matei, Urban Inst., Solitary Confinement in US Prisons 7 (Aug 2022), https://www.urban.org/sites/default/files/2022-08/Solitary%20Confinement%20in%20the%20US.pdf.

^[8] Id. at 7 (citing Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 Rev. L. & Social Change 477 (1997);

^[9] World Health Org. & Int’l Ass’n for Suicide Prevention, Preventing Suicide in Jails and

Prisons (2007), https://iris.who.int/bitstream/handle/10665/43678/9789241595506_eng.pdf?sequence=1&is.

^[10] Olivia Rope & Frances Sheahan, Penal Reform Int’l, Global Prison Trends 2018 26 (2018), available at https://cdn.penalreform.org/wp-content/uploads/2018/04/PRI_Global-Prison-Trends-2018_EN_WEB.pdf.

^[11] Amy Fettig, 2019 Was a Watershed Year in the Movement to Stop Solitary Confinement, ACLU (Dec. 16, 2019), https://www.aclu.org/news/prisoners-rights/2019-was-a-watershed-year-in-the-movement-to-stop-solitary-confinement.

^[12] Victoria Law, The New York Law Everyone Is Watching, The Nation (May 4, 2023), https://www.thenation.com/article/society/new-york-halt-everyone-watching/.

^[13] H.B. 21-1211, 74th Gen. Ass. (Col. 2021).

^[14] Michigan DOC does not allow “temporary segregation” for more than seven days; sets out specific infractions that can lead to administrative or punitive segregation; and enumerates property, program, and activity access while in segregation. See Michigan Department of Corrections, Policy Directive (June 1, 2019),

https://www.michigan.gov/corrections/-/media/Project/Websites/corrections/Files/Policy-Directives/PDs-04-Institutional-Operations/PD-0405-Use-of-Force-Disturbance-Control-Segregation/04-05-120-Segregation-Standards-effective-06-01-19.pdf?rev=5e68fd0e96b2487fbed45ab29d222441. Wisconsin DOC also set out protections for inmates with mental illness. See Wis. Admin. Code DOC § 303 (2018). In North Dakota, prison officials took it upon themselves to change the use of segregation, and between 2016 and 2020, the number of people put in segregation decreased by 74%. David H. Cloud, One State’s Push to End Solitary Confinement, Public Health Post (Feb. 17, 2022), https://www.publichealthpost.org/research/solitary-confinement/.

^[15] A314, 218th Gen. Ass. (N.J. 2018).

^[16] N.Y. Correction Law § 137  (Consol. 2022).

^[17] Id.

[18] A314, 218th Gen. Ass. (N.J. 2018).

[19] Id.

^[20] Col. Rev. Stat. § 17-26-301 (2024).

^[21] H.B. 364, 54th Leg., 1st Sess. (N.M. 2019).

[22] Minn. Stat. 243.521, Subd. 9(a) (2023).

[23] Id. Subd 2

[24] Id. Subd. 5, Subd. 6

^[25] Ryan Faircloth, Minnesota Prisons Lengthen Solitary Stays; Inmates Sent to ‘The Hole’ More Than Ever Last Year, Pioneer Press (Aug. 14, 2019, 9:26 am), https://www.twincities.com/2019/08/10/minnesota-prisons-lengthen-solitary-stays-inmates-sent-to-the-hole-more-than-ever-last-year/.

[26] MN Department of Corrections, 2022 Restrictive Housing Report 1 (2023), available at https://mn.gov/doc/assets/FY22%20DOC%20Restrictive%20Housing%20Report_tcm1089-561021.pdf.

^[27] Id.

^[28] G.A. Res. 70/175, Rule 44 (Dec. 17, 2015).

^[29] Faircloth, supra note 20.

^[30] Id.

^[31] Andy Mannix, supra note 3.

^[32] Id.

^[33] Leg. Bill 598, 148th Leg., 1st Sess. (Neb. 2015); see also G.A. Res. 70/175 (Dec. 17, 2015) (defining solitary confinement).

^[34] See Doug Koebernick & Zach Pluhacek, Nebraska Office of Inspector General of Corrections, Use of ‘Controlled Movement Units’ Within NDCS Facilities 2 (Oct. 19, 2022), available at https://nebraskalegislature.gov/pdf/reports/public_counsel/2022_NDCS_controlled_movement_units.pdf (“NDCS has not met the statutory requirement in Neb. Rev. Stat. § 83-173.”)

^[35] Vincent Atchity, Solitary Confinement Reform Challenges Spotlight Mental Health Care Need, The Crime Report (Oct. 18, 2023), https://thecrimereport.org/2023/10/18/challenges-in-implementing-solitary-confinement-reforms-spotlight-need-for-mental-health-care-outside-of-corrections/

^[36] Id.

^[37] Dallas Augustine, et. al., Window Dressing: Possibilities and Limitations of Incremental Changes in Solitary Confinement (July 31, 2021), available at https://healthandjusticejournal.biomedcentral.com/articles/10.1186/s40352-021-00145-7#Sec13.

^[38] Id.

 

Same here.