Definitions of the terms “solitary confinement,” “isolation,” and “segregation” vary between jurisdictions and facilities. This report uses the term “segregation” to describe the general practice, described in more detail below, of isolating an inmate for 22 to 24 hours a day in a small cell.Our nation’s prison systems have been housing people in solitary confinement, or segregation, 1 for decades. 2 As inmate populations increased throughout the 1980s and 1990s, prisons turned to segregation, claiming it was a necessary intervention to curb institutional violence. 3 As a result, between 80,000 to 100,000 inmates are currently placed in small single person cells for 22 to 24 hours per day, for days, if not months or years at a time. 4 Notably, many of those housed in segregation found their way there due to behaviors associated with a mental illness, 5 or they developed symptoms of mental illness due to their prolonged isolation. 6 Many inmates with mental illness are not only locked up and serving a sentence, they are disproportionately locked down in segregation, where they remain isolated in their cells and experience severely restricted access to programs and activities, including mental health treatment. 7
In discussing mental illness, this report uses the broad definition of “individual with a mental illness” from the Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act. Under this act, an “individual with a mental illness” is an individual “who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State….” Courts have generally interpreted the terms “significant mental illness” and “emotional impairment” broadly.
Research suggests that segregation does not in fact decrease violence or make prisons safer. 8 Moreover, experts have found that the crushing isolation of segregation has a debilitating effect on inmates, especially inmates with mental illness. 9 Even the president of the United States has recognized that a person’s mental illness can worsen in segregation, and inmates with mental illness are more likely to commit suicide. 10 In response to these findings, advocates have argued that the imposition of such restrictive conditions on inmates with mental illness violates the Eighth Amendment prohibition on cruel and unusual punishment as well as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Rehab Act), and have fought for an overhaul of the use of segregation in the nation’s prison systems.
Very few outsiders are allowed into prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with the special federal authority to enter facilities that serve people with disabilities, have been going to the most segregated areas of prisons to identify issues facing people with disabilities. 11 P&As have received countless reports of abuse and neglect of inmates in segregation, including prolonged isolation, deplorable conditions, inadequate care, increased self-harm and suicide attempts, and even death.
This report focuses on the segregation of individuals with mental illness. However, some of the same concepts apply to people with developmental and intellectual disabilities, and people with brain injuries. Therefore, much of the analysis applied throughout this report to individuals with mental illness holds for people with other cognitive disabilities as well.
In recognition of the growing population of inmates with disabilities, 12 in 2012, Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a privateAnna Guy, AVID Prison ProjectFull Transcript grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. 13 In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.
Segregation does not in fact decrease violence or make prisons safer.
This report, which has grown out of that collaborative national effort, examines issues related to the segregation of inmates with mental illness in our state prison systems, including the harmful effects of prolonged isolation on that population, the excessive use of force that often precedes or accompanies placement in segregation, and the restricted access to programs and services in segregation. 14 P&As from across the country provided examples of either past or ongoing advocacy, demonstrating the crucial role that P&As have played in fighting against the excessive use of segregation of people with mental illness in our nation’s prisons. 15 This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.
This report begins with a brief overview of the P&A system, explains the different types of advocacy P&As use, describes the effect of segregation on people with mental illness, and outlines legal protections related to segregation of inmates with mental illness. Next, this report details the work P&As across the country have done to advance the rights of inmates with mental illness in segregation, dividing the advocacy into non-litigation and litigation strategies. Finally, the report concludes with a number of federal and state recommendations to build on the momentum gained by the P&As and their partners, including:
Ultimately, this report is a call to action and is meant to encourage partnerships among the P&A network, prison advocacy groups, and interested stakeholders to increase focus on what has become an international conversation on the use of segregation in America’s prisons.
While many P&As engage in advocacy relating to conditions in city jails, county jails, and immigration detention or holding facilities, this report primarily focuses on the work P&As have done in state prisons, with one example from a federal correctional facility.
The Voices from Segregation
Overview of the Protection and Advocacy System
The P&A system was created in the 1970s after a series of news reports exposed the horrific institutional conditions in which people with developmental disabilities were housed. 16 This news coverage prompted federal legislation to create a national network of P&As to advocate on behalf of people with developmental disabilities. Since that time, additional legislation has been passed, expanding the scope of P&As to include advocacy on behalf of all people with disabilities, in any setting, fromThe P&A NetworkFull Transcript
the community to prison. 17
This legislation also grants P&As the authority to monitor settings in which people with disabilities live, work, or receive services, as well as the power to investigate allegations of abuse and neglect of people with disabilities. 18 This unique authority allows P&As to monitor and investigate in even the most segregated settings, and gives P&As access to individuals and records as they seek to enforce and defend the rights of people with
disabilities. As increasing numbers of people with disabilities have become incarcerated, the P&A network
has used its access authority to conduct monitoring and advocacy in the nation’s prisons.
When litigation has been required, P&As have raised claims based on the Eighth and Fourteenth Amendments of the U.S. Constitution as well as the ADA and the Rehab Act. While P&As have engaged in litigation in both state and federal courts on behalf of individual inmates, these cases are most often brought as class actions. In the last decade P&As have increasingly served as organizational plaintiffs in such cases, representing the interests of their constituents in challenging systemic conditions and practices that impact inmates with disabilities. 21
Overall, this powerful range of advocacy tools makes the P&A network uniquely positioned to achieve a broad range of positive individual and systemic outcomes for people with mental illness in prisons and can attract partnerships with other advocacy groups and law firms to combine resources and expertise to reach common goals on behalf of the network’s constituents.
The Effect of Segregation on Inmates with Mental Illness
Segregation is generally recognized as the isolated confinement of an inmate for 22 to 24 hours a day in a small cell, typically about six by eight feet, containing only a bed, a sink, and a toilet, and enclosed by a metal door with a small window and cuff port. 22 While inmates may be placed in segregation for a number of reasons, segregation can last for days, months, years, and even decades, regardless of its purpose. 23
Designed to disconnect inmates from most forms of human contact and environmental stimulation, inmates in segregation have little access to programming, services, or treatment during the course of their confinement. 24 For inmates with mental illness, these conditions are devastating as contact with mental health clinicians typically consists of brief assessments conducted at cell-front. 25 Mental health interventions such as Eric Balaban, ACLU National Prison ProjectFull Transcript therapy and structured activities are not usually available in these settings, and prison rules commonly preclude segregated inmates from leaving their cells; thus, the only mental health treatment for inmates in segregation is often psychotropic medication. 26 Furthermore, meaningful interaction with staff and the outside world is also restricted; food and other items are usually passed through a slot in the cell’s steel door, and visitation and telephone communication may be limited or banned altogether. 27 Access to fresh air and sunlight is also limited; recreation time is spent in a cage-like enclosure up to one hour per day, three to five times a week. 28 Moreover, lights in segregation are often illuminated 24 hours per day. 29
Research reveals that inmates placed in these harsh conditions often experience intense mental and physical distress; for inmates with mental illness, these conditions can have a catastrophic impact. Inmates in segregation routinely report extreme sensory deprivation, sleep deprivation, psychiatric decompensation, hallucinations, and behaviors relating to self-harm and even suicide. 30 Because prison staff that work on these units often have little to no training related to working with inmates with mental illness, reports have found it is not unusual for prisons to employ chemical agents such as pepper spray or physical restraints to curtail or control the behaviors of inmates with mental illness in segregation. 31
It is not unusual for prisons to employ chemical agents such as pepper spray or physical restraints to control the behaviors of inmates with mental illness in segregation.
In addition to these harsh conditions, inmates in segregation do not have access to the same programs and activities available to inmates in other, less restricted, areas of the prison. Many systems require that inmates in solitary confinement be escorted in restraints by two or more officers. 32 This and other security restrictions often result in limited access to programs such as skill building, education, vocational training, group therapy, Dr. Terry Kupers MD, MSPFull Transcript socialization, or other activities. These activities are important tools for helping inmates learn skills for daily living and medication compliance, including how to take care of their most basic personal hygiene and everyday needs. Thus, limiting access to programs hinders the ability of inmates to live and cope with the symptoms of their mental illnesses over time. 33
Moreover, when the symptoms of a segregated inmate’s mental illness escalate, the inmate may be sent to suicide watch, an even more restrictive form of segregation. While many inmates are transferred to suicide watch from another segregated setting after inflicting self-harm or attempting suicide, rather than receive therapeutic services necessary to alleviate symptoms of mental illness, inmates on suicide watch are placed under even more extreme conditions of segregation. Here, inmates are watched 24 hours a day and are generally stripped of their personal belongings, clothed in a suicide smock, and forced to urinate and defecate through a grate in the floor. 34
In the aggregate, while segregation is difficult for all inmates, it is particularly difficult for inmates with mental illness. While these inmates often have unique needs for specialized housing, programming, and treatment, such services are generally not available or provided. Furthermore, inmates with mental illness are often placed in the most restrictive forms of segregated housing where they receive even less mental health care and are treated more harshly than other inmates in segregation. As a result, inmates with mental illness in segregation are often subject to the most extreme conditions of confinement.
In recent years, inmates and advocates have brought lawsuits challenging these excessively harsh conditions and limited access to treatment and programs, alleging that segregation violates the Eight Amendment prohibition of “cruel and unusual punishments,” particularly with respect to inmates with mental illness. 35 While the U.S. Supreme Court has held that this Eighth Amendment prohibition applies in segregation cases, 36 inmates must prove that prison staff acted with “deliberate indifference to a substantial risk of serious harm to a prisoner” to demonstrate an Eighth Amendment violation. 37 Courts have found that this “deliberate indifference” standard is equivalent to “recklessly disregarding that risk.” 38 Mere negligence is not sufficient to demonstrate deliberate indifference. 39
An Eighth Amendment challenge alleging deliberate indifference must satisfy both a subjective and objective test. 40 Under this two pronged test, the prison official must be shown to be subjectively indifferent, in that he “disregards a risk of harm of which he is aware.” 41 Whether the prison official had knowledge of the risk can be demonstrated “in the usual ways, including inference from circumstantial evidence, … and a factfinder may A.J. Ruben, Disability Rights VermontFull Transcript conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” 42 The second prong, the objective test, requires that the inmate show that the prison official’s acts violated “contemporary standards of decency.” 43 Such objective indifference can be manifested by prison officials in a number of ways, including intentionally delaying or denying an inmate’s access to medical care, including mental health care, interfering with prescribed treatment, or in the systemic delivery of medical care. 44
Various courts have applied the two-prong deliberate indifference test to segregation claims brought by inmates with mental illness and found that segregation of this population violates the constitutional prohibition on cruel and unusual punishment. For instance, in Madrid v. Gomez, a California district court found that housing inmates with mental illness and inmates “at a particularly high risk” of experiencing mental illness in segregation violated the Eighth Amendment. 45 However, the court also held that conditions in segregation did not violate the Eighth Amendment for those inmates with “normal resilience.” 46 In Ruiz v. Johnson, a Texas district court went further and held that the conditions of Texas’ administrative segregation units violated the Eighth Amendment “through extreme deprivations which cause profound and obvious psychological pain and suffering.” 47 With respect to inmates with mental illness, the court further reasoned that “the severe and psychologically harmful deprivations of [the] administrative segregation units are, by our evolving and maturing society’s standards of humanity and decency, found to be cruel and unusual punishment.” 48 The court in Jones’ El v. Berge took the extraordinary step of removing inmates with mental illness from a super-max prison after finding the mental health screening and monitoring tools grossly inadequate and ineffective, holding deliberate indifference existed because the tools “serve as little more than band-aids to the potentially detrimental conditions to which defendants are subjecting mentally ill inmates.” 49
"The severe and psychologically harmful deprivations of [the] administrative segregation units are... found to be cruel and unusual punishment."
- Honorable John Cornyn, former Attorney General of Texas
Along with the Eighth Amendment, advocates have argued that Title II of the ADA and Section 504 of the Rehab Act preclude prisons from discriminating against inmates with mental illness. 50 While the ADA protects inmates in state-run prisons, the Rehab Act applies to prisons that receive federal funding. Together, these statutes provide non-constitutional causes of action to challenge placement in segregation on the basis of mental illness, prolonged stays in segregation due to symptoms of mental illness, and the limitation and denial of access to services and programs to inmates in segregation with mental illness. 51
For more information about the ADA and prison, see Rachael Seevers, Disability Rights Washington, Amplifying Voices of Inmates with Disabilities Prison Project, Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act (2016).
See also, Margo Schlanger, Memorandum Re: The ADA/Rehab Act and solitary confinement (2015)
P&As and their partners have successfully advocated to limit or end the segregation of inmates with mental illness in various state and federal systems, employing advocacy methods ranging from basic information and assistance to individual inmates to large-scale systemic litigation. These examples, separated into non-litigation and litigation, demonstrate the critical role P&As have played in providing independent external monitoring and advocacy in our nation’s prisons while also making clear that much still needs to be done to advance and protect the rights of inmates with mental illness in segregation:
For over thirty years, the P&A network has zealously advocated on behalf of individuals with mental illness in facilities nationwide. As the number of inmates with mental illness in prisons continues to grow, the P&A outreach and advocacy effort in prisons has grown in response. However, much more work needs to be done to help those inmates with mental illness who are locked up and locked down in segregation. Although prison advocates are employing a multitude of tactics to pressure departments of corrections to effect reform, it remains difficult for inmates in segregation to navigate the complex grievance and judicial process, and reach resources and organizations on the outside to assist with legal claims. This lack of access to advocates results in the continuation of inmates in segregation facing prolonged isolation in harmful conditions. Thus, this report concludes with a call to action and a series of recommendations. These recommendations encompass steps that can be taken at the local, state, and federal levels and are intended to spur action by P&As, as well as correctional systems and local lawmakers. They are also intended to add a disability perspective to the ongoing conversation about prison conditions, and inform national policymakers about the unique issues faced by inmates with mental illness.
"They don't understand that placing me in the hole exacerbates my mental illness to a whole different degree..."
"Segregation, for me, was pretty much hell..."
"I really can't deal with other people very well anymore."
"It's a different lens living in a world of punishment."
Barry Siphoy, an inmate at Washington Corrections Center in Shelton, Washington holds up a colorful painting with the word “Hope." Barry was housed in the Skill Building Unit, an example of a less-restrictive housing alternative to segregation.
The AVID Prison Project is a collaboration between The Arizona Center for Disability Law, Disability Law Colorado, The Advocacy Center of Louisiana, Disability Rights New York, Protection and Advocacy for People with Disabilities of South Carolina, Disability Rights Texas, Disability Rights Washington and The National Disability Rights Network.