[Pnews] What This Week’s Landmark Settlement Will—and Will Not—Change About Solitary Confinement in New York’s Prisons

Prisoner News ppnews at freedomarchives.org
Fri Dec 18 11:13:23 EST 2015

*What This Week’s Landmark Settlement Will—and Will Not—Change About 
Solitary Confinement in New York’s Prisons *

    By Jean Casella <http://solitarywatch.com/author/casellaj4/>


The settlement announced Wednesday by the New York Civil Liberties Union 
in the /Peoples v Fisher/ case brings broad, deep, and meaningful change 
to the way New York utilizes solitary confinement in New York State. It 
is a significant and hard-won victory for the plaintiffs, their 
attorneys, and the hundreds of advocates who have long been battling the 
widespread use of solitary in the state.

Media hailed the changes as an “overhaul” 
of solitary confinement in New York. Governor Andrew Cuomo’s chief 
counsel, Alphonso David, called the agreement “radical and 
groundbreaking,” and told the /New York Times/ that the governor “saw 
the lawsuit as an opportunity to make New York prisons a model for the 

Everything in the settlement of the four-year lawsuit indeed represents 
major progress, and the limits and alternatives it prescribes will bring 
relief to perhaps thousands of individuals suffering in solitary in New 
York. If there is a downside, it is that the largely celebratory tone of 
the announcements and press coverage may lead all of the people in 
long-term solitary to mistakenly expect that their ordeals will soon be 
over, and the public to believe that the struggle to end prolonged 
prison isolation in New York has now been won.

In fact, even amidst the hard-won celebrations, there is acknowledgement 
that the changes the settlement brings are incremental changes. While 
the agreement begins to address the underlying paradigm of punishment 
and control through isolation that has been liberally practiced in New 
York for decades, it does not destroy or replace it. And even when all 
its provisions are implemented, thousands of people are likely to remain 
in solitary, some for years or decades.

The 79-page settlement 
details numerous, concrete ways in which the use and impact of solitary 
confinement will be limited. At the front end, the agreement will lower 
the number of people placed in solitary to begin with. As summarized by 
the NYCLU, the reforms in this area focus on reducing the types of 
disciplinary violations that are punishable by solitary.

    [The settlement] restricts the circumstances that solitary can be
    imposed as punishment. Nearly half (42) of the 87 rule violations
    punishable by solitary–including drug use and drug possession–no
    longer allow solitary sentences for one-time violations. Petty
    violations–23 out of the 87 violations–are no longer eligible for
    solitary confinement sanctions at all. [The settlement also] imposes
    a maximum sentence for solitary confinement of three months for all
    but a handful of first-time violations such as assault and escape,
    and a maximum sentence of 30 days for almost all first-time
    non-violent violations.

The precise disciplinary guidelines are yet to be released pending 
approval of the settlement by the court, but this is surely a 
significant change in a state known for throwing people in the hole 
for long periods for minor, nonviolent infractions.

At the back end, a portion of those currently in solitary will be 
removed and placed in alternative forms of housing. According to the NYCLU:

    [The settlement] removes more than 1,100 people from traditional
    solitary conditions and either moves them into rehabilitative units
    with common spaces and group programming or moves them to into other
    less isolating disciplinary units. These changes are designed to
    impact people trapped in solitary with the longest sentences, people
    with developmental disabilities, people in need of drug therapy or
    more comprehensive behavioral therapy, juveniles, and people who
    would otherwise be released directly from solitary to the street.

The settlement agreement outlines the types of alternative housing 
planned, including units where people will be released from their cells 
for two hours a day or programming and treatment, and two hours a day of 
recreation, four day a week. The provisions are fairly typical of the 
“step-down” programs used in other states, and will meaningfully 
mitigate the isolation and sensory deprivation faced by those in solitary.

At present, however, there are more than 4,000 people in solitary in New 
York State prisons. This number comprises about 8 percent of the prison 
population—nearly double the national average of 4.4 percent 
<http://www.bjs.gov/content/pub/pdf/urhuspj1112.pdf> in all state and 
federal prisons, and far above states that have instituted more sweeping 
reforms, such as Colorado and Washington.

Until more details and data are released and the changes are fully 
implemented (with some scheduled to take as long as two years), it is 
not possible to know how much the settlement provisions will lower the 
overall number of people in solitary. It seems safe to say, however, 
that thousands rather than hundreds will be left behind.

Among those who will not be released from solitary are individuals in 
Administrative Segregation, as opposed to Disciplinary Segregation. The 
20-30 people in “Ad Seg” have been placed in solitary based on an 
assessment of risk, rather than any particular disciplinary infraction. 
They include a handful of men who have served the longest solitary 
sentences in New York State, some stretching two to three decades. 

For individuals who remain in solitary, the settlement does have 
provisions for modest changes to conditions of confinement. It provides 
for “basic human needs for people in solitary, including access to 
telephone calls, reading materials and a shower curtain in shared cells, 
and abolishes the use of serving inedible food (the “loaf”) as a form of 
starvation punishment,” the NYCLU states.

Other provisions of the settlement address what promises to be the 
biggest uphill battle to effective implementation of even these 
incremental reforms: the culture of corrections staff in New York State, 
where disciplinary “tickets” carrying solitary confinement sentences 
have been handed out liberally by corrections officers who clearly value 
their unrestricted power to do so.

The day the settlement was announced, the New York State Correctional 
Officers & Police Benevolent Association (NYSCOPBA) issued a statement 
in which its president, Michael Powers, said, “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.” Placing limits 
on solitary, the statement says, will likely lead to increased assaults 
on staff.

The settlement—to which the union was not a party, “requires 
de-escalation training of over 20,000 of Department of Corrections and 
Community Supervision personnel on how to diffuse situations before 
solitary becomes a consideration.”

All of these provisions represent major concessions on the part of 
Governor Andrew Cuomo and the leadership of the Department of 
Corrections and Community Supervision (DOCCS), which has to deal with 
promises to be a largely hostile rank-and-file prison staff. So does the 
price tag on the changes: $62 million for implementing the terms of the 
settlement, “including the conversion of traditional solitary blocks 
into more rehabilitative spaces with group dayrooms and outdoor space.”

Significantly, the agreement also “establishes a robust monitoring 
regime to ensure compliance with the terms of the settlement, including 
quarterly reporting to the public.” “Massive culture change is a 
challenge,” NYCLU Executive Director Donna Lieberman told the press 
“We need to be monitoring like a hawk, and we will be monitoring like a 
hawk to ensure that the reforms are actually carried out.”

While the NYCLU oversees the reforms, which must remain in place for the 
five-year span of the settlement, other advocates and lawmakers are 
working to bring a full and permanent end to the use of solitary in New 

The Humane Alternatives to Long-Term Solitary Confinement Act 
<http://nycaic.org/legislation/>, introduced in January 2014 in both 
houses of the New York State Legislature, would all but eliminate the 
use of solitary beyond 15 days—the limit recommended by UN Special 
Rapporteur on Torture Juan E. Méndez, and codified in the UN’s new 
“Mandela Rules 
which set minimum standards for the treatment of people in prison. The 
legislation would establish “Residential Rehabilitation Units” for 
individuals who need to be separated from the general population for 
longer periods of up to one year, with a minimum of seven hours 
out-of-cell time daily.

To date, the HALT Solitary Confinement Act is the most comprehensive and 
progressive piece of legislation yet to be introduced in the United 
States. With 55 co-sponsors in the Assembly and Senate, it is gaining 
momentum, but has a long road–and likely some revisions–ahead before it 
sees passage.

The NYCLU’s Taylor Pendergrass lead counsel in the /Peoples/ case, told 
the /New York Times/ 
that he hopes the new settlement will represents a seismic shift that 
will make way for further change. “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,” he said. “This will not be 
the end of the road for solitary confinement reform, but we really think 
it’s a watershed moment.”

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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