At a Senate Judiciary Committee hearing in April, Sen. Dick Durbin (D-IL) noted that back in 2012, Congress held its first hearing on solitary confinement, something the United Nations considers torture when used beyond 15 days. “I’m disappointed to report,” Durbin said at the hearing, “that more than a decade later, the overuse of solitary confinement remains a stain on our nation.”
That overuse is perhaps most rampant within the Federal Bureau of Prisons (BOP), which routinely locks thousands of people in single or double cells for up to 23 hours a day, in what is called “restrictive housing” or “special housing units” (SHUs). Over the years, the BOP has offered a simple response to criticism of their continued use of solitary: Give us more data.
Since that initial hearing in 2012, the federal government has conducted or commissioned at least nine studies and reports addressing the BOP’s use of solitary confinement, including seven that originated from within the Department of Justice (see timeline). Yet there has been little resulting change.
The first two studies, published in 2014 and 2016, gave the BOP a combined 87 recommendations for reforming and reducing its use of solitary. Yet in February, the Government Accountability Office (GAO) revealed that the Bureau has failed to fully implement 54 of those recommendations. In 2023, the GAO placed “Management of the Federal Prison System” on its High Risk List of programs “vulnerable to waste, fraud, abuse, or mismanagement, or in need of transformation.”
Meanwhile, the number of people officially held in federal solitary has remained relatively constant since 2008. It currently sits at a whopping 11,152, making up 7.7 percent of all people in BOP custody—well above the national average among state prison systems. In fact, as the overall federal prison population decreased during that time frame, the percentage of people in restrictive housing is at its highest level since 2008, based on data received via a public record request and data publicly available on the BOP website.
In 2022, Attorney General Merrick Garland appointed Colette Peters to head the BOP, making her the sixth director in six years. Peters, who previously ran the Oregon Department of Corrections, was brought in for her “ability to lead change by establishing a vision for reform.” Advocates hoped she would at least partially implement President Joe Biden’s campaign promise of “ending the practice of solitary confinement, with very limited exceptions.”
But over Peters’s nearly two years in office, the use of solitary has only increased.
In response to increased scrutiny, Peters and the BOP commissioned yet another study last year. In a $7.8 million contract, the BOP hired a nonprofit research institute to study the “reasons, duration and outcomes of restrictive housing placements in federal institutions.”
Peters has claimed that the study is a necessary step to reducing BOP reliance on solitary. “You cannot change what you do not measure,” she wrote in an op-ed in The Hill last year that acknowledged the harms of solitary confinement. “It is paramount that we understand why and for how long people are placed in restrictive housing.”
But after seven studies and dozens of recommendations that have not been adopted, it should be no mystery why so many people incarcerated in the BOP are in solitary confinement, which a growing body of evidence identifies as causing profound and lasting harm, while failing to make prisons safer.
THE BOP PUBLISHES WEEKLY UPDATES on the number of people in SHU, broken down by the reasons for their placement. These statistics reveal that most people are not in solitary because they are deemed exceedingly dangerous: As of May 5, only 332 of the more than 11,000 in restrictive housing are in the federal supermax. Another 1,267 people are in SHU for disciplinary segregation, essentially for breaking prison rules.
The vast majority—9,553 people—are in “administrative detention,” an officially “non-punitive” category of housing used for a variety of reasons. Within administrative detention, 670 have requested protective custody. Another 2,707 recently transferred into a new facility. Most are there because they are accused of a BOP rule violation and are awaiting due process: 2,285 have a pending investigation, and 3,394 people have a pending hearing.
Waiting for an investigation and a hearing can amount to weeks, months, or longer languishing in solitary confinement, without the ability to appeal the placement. “If you’re under investigation, you’re at their mercy, period,” one man who has spent years incarcerated in federal prisons told me. “If you just piss somebody off, then they have the excuse of putting you under quote-unquote investigation. And you sit in the SHU indefinitely.”
BOP policy states that people in administrative detention should have their housing status reviewed by a Segregation Review Official (SRO) after three days, seven days, 30 days, and at seven- and 30-day intervals going forward. Although people are entitled to attend their seven-day hearing in person, “I’ve yet in my life” to see that happen, explained Jack Donson, a 23-year former BOP employee and policy expert. He said BOP staff and officials often fail to follow their own regulations, and “nobody holds them accountable to it.”
There is no upper limit on how long people can be kept in restrictive housing. Federal regulations state, vaguely: “You will be released from administrative detention status when the reasons for your placement no longer exist.”
“There’s no time frame for an investigation,” Donson said. “And so what the BOP does is—say they think somebody is selling drugs in the prison; they have no evidence whatsoever. They lock them up ‘pending investigation,’ and they let them sit there and rot.”
There is no upper limit on how long people can be kept in restrictive housing.
A BOP spokesperson told the Prospect that people spend an average of 31 days awaiting an investigation. When the investigation concludes, the wait for a disciplinary hearing begins, although the spokesperson did not have data on that average wait time.
Donson said that long waits in SHU encourage false confessions. “You know what it’s like to be locked in, 23 hours a day, getting fed in the cell, a shower every three days, your rec in a cage?” he said. “After like 90 days, they admit to things they didn’t even do, just to get the hell out of seg [segregated housing].”
Federal regulations state that people on administrative detention should be “ordinarily allowed a reasonable amount of personal property and reasonable access to the commissary.” But in practice, those with personal experience told the Prospect that the conditions are often nearly identical to disciplinary segregation, a claim that is further confirmed by individuals interviewed in SHU by the GAO.
“Whether it’s administrative or disciplinary, it’s pretty much the same,” explained Jack Powers, who spent decades in federal prisons, including years in solitary confinement, and learned the ins and outs of BOP policy as a “jailhouse lawyer.” “They say that you’re supposed to get your property, you’re supposed to get your commissary, you’re supposed to be able to get education programs and so forth. But I’ve never seen any of that happen in reality. You’re just locked down just like everybody else.”
Joseph Mays spent 71 days in administrative detention at FCI Butner, a federal prison in North Carolina. The official reason for his placement was a “pending SIS investigation.” (Special Investigative Supervisors investigate alleged wrongdoing among incarcerated people and staff.) But Mays had recently filed grievances over racist treatment at his prison job, and says an SIS officer told him off the record that the investigation was retaliation.
In a 2018 federal lawsuit, Mays complained about his dragged-out investigation and dismal SHU conditions. He claimed to have lost weight in the SHU, developed stomach problems, and passed out during a dizzy spell. He was only allowed one phone call every 30 days, which left him unable to communicate with his sick father. Two days after he was removed from the SHU and abruptly transferred to another BOP facility, his father died.
“I was not given a specific explanation of the reason I was put in the SHU,” Mays alleged in court documents. “I was not given an opportunity to receive and/or give feedback and properly defend myself.” When his SIS investigation concluded, he did not receive any resulting disciplinary action. Mays’s lawsuit reached the U.S. Court of Appeals before it was dismissed; the judges ruled it did not fit the narrow margins within which the Supreme Court allows people to sue federal officers.
In the April Senate Judiciary Committee hearing, Nicole Davis vividly described how her confinement in a federal SHU left her “traumatized, anxious, breathless, and deeply depressed.” Davis, who now runs a nonprofit that works with children of incarcerated parents, spent 87 days in solitary after taking part in an unsanctioned three-way phone call with her sister and daughter, who was in the hospital. “I feared for my safety,” she testified. “I repeatedly heard multiple officers tussling with a woman in her cell while she screamed for them to get their hands off of her. I would think to myself that if I had to be here, I didn’t want to live. I truly felt like I had nothing left to live for.”
Davis described hearing a woman scream that she would kill herself if they didn’t let her out. Eventually, “the officer came to take her body out of the cell.” In fact, the recent OIG report found that 86 of 187 investigated suicides in the BOP occurred in restrictive housing.
“I am still traumatized by my time in solitary confinement,” Davis said. “Even after a decade of freedom, the scar of solitary haunts me. Solitary confinement is not a place to put human beings.”
WHEN QUESTIONED ABOUT THE HIGH USE OF SOLITARY, BOP officials have argued that many people choose it voluntarily. In another Senate Judiciary Committee hearing, this one in February on deaths in federal prisons, BOP Director Peters stated that nearly 40 percent of people in SHU are there “of their own choice,” because they are afraid to return to the general population. (Only 5.8 percent of people in SHU are officially in “protective custody,” though the BOP spokesperson said others also refuse to come out of SHU.)
Powers, the former jailhouse lawyer, said many people are fearful of being in the general population because they never should have been placed in a high-security prison in the first place. He believes the BOP needs a better process for placements within the system.
Gretta L. Goodwin, director of justice and law enforcement issues at the GAO, who spoke at the hearing in April, says protective custody should occur in an alternative, non-solitary unit. “They want to be protected,” she said. “They don’t want to be in solitary. That isn’t protecting them.”
At the February hearing, Sen. Durbin expressed frustration that the BOP is conducting yet another study into its use of solitary, while existing recommendations remain unfulfilled and the use of solitary confinement remains high. “The time for studies is over,” he said.
Asked about the additional value of yet another study, a BOP spokesperson replied: “While this study and analysis are ongoing, we do not have a comment at this time.”
“Solitary confinement is not a place to put human beings.”
Donson, the BOP policy expert, said that in 2014, he and other reform advocates were invited to meet with the team contracted to conduct the first audit of federal solitary confinement. At the meeting, they were seated around a table stacked high with papers. The contractors explained that these papers came from the BOP, to form the basis of their report.
“They called it a ‘data dump,’” he recalled. “I said, ‘Do you know that you can go on the computer right now and recall, with a five-second transaction, how many people are sitting in SHU, and when they got there? … You people, without any BOP experience, are going to review a two-foot “data dump” to do your report, when you can go on the computer right now and mine the data?’”
To Donson, the incident was a frustrating example of how the BOP works the bureaucracy in the system while endlessly delaying meaningful reform.
“It was a joke, in my opinion,” he said of the 2014 study. “But now we’re talking about the same stuff again.”
Goodwin said the BOP has repeatedly failed to evaluate its own programming, including its handling of solitary confinement.
The Bureau accumulates significant data related to problems with solitary confinement—including official complaints from incarcerated people about mistreatment, as well as the results of its quarterly “program reviews,” which identify staff failures like improper documentation of why someone is in SHU. But BOP leadership does not leverage this information to identify patterns of repeat deficiencies and “repeat repeat deficiencies,” examine the causes, and figure out solutions.
Bureau officials have similarly not analyzed their own program data to figure out why Black people are overrepresented in BOP solitary units. “They have had a number of missed opportunities,” said Goodwin. “The data are there, they just haven’t done the evaluation.”
She added: “If you’re supposed to provide safe, humane living conditions, which is what BOP is supposed to do, how can you do that when you know that there are complaints, you know that there are concerns, you know that there are challenges, but you haven’t evaluated any of them to figure out what could be done?”
THE FEDERAL ANTI-SOLITARY TASKFORCE (FAST), a coalition of seven organizations seeking to end federal solitary confinement, argues that people can be separated from the general population without putting them in solitary confinement. The coalition’s blueprint for ending solitary argues that everyone, regardless of the type of housing, should have significant out-of-cell time, and “meaningful programming and activities … without restraints and with at least several other people.”
Johnny Perez, director of the U.S. Prisons Program of the National Religious Campaign Against Torture (NRCAT), one of the organizations in FAST, spent a total of three years in solitary confinement in New York prisons. “Regardless of the name—whether it’s administrative detention, disciplinary segregation, restrictive housing—it’s torture, period,” he said.
FAST has proposed legislation, the End Solitary Confinement Act, that would cap solitary confinement in federal facilities at four hours. The legislation was introduced by Rep. Cori Bush (D-MO) and Sen. Ed Markey (D-MA). Another pending bill, the Solitary Confinement Reform Act, which would limit federal solitary to 15 days with some exceptions, was introduced in April by Sens. Durbin and Chris Coons (D-DE).
While these bills would likely face an uphill battle in Congress, similar reforms could come from the executive branch. In 2022, two months before Peters’s appointment, President Biden issued a broad executive order addressing various policing and criminal justice concerns. In it, he instructed the DOJ to ensure restrictive housing “is used rarely, applied fairly, and subject to reasonable constraints,” as well as to fully implement the recommendations from the 2016 assessment.
Those instructions could be more specific, with defined limits on the length of time a person can spend in federal solitary. Similar reforms could also originate from Peters, either as an internal policy change, or by using the formal rulemaking process to codify reforms in the Federal Register.
“They have the power to end solitary today,” said Perez. “They could literally just do it today.”
But while the BOP did propose rule changes to its restrictive housing policies in February, the proposed changes actually increase the length of solitary stints for some disciplinary infractions, such as having a social media account. The rules do not address the use of administrative detention.
“Imagine in the 1800s—wanting to end slavery, and someone saying, ‘Oh, wait, let’s study the effects of it first,’” said Perez. “We’ve had enough studies and recommendations … We know the way that we’re treating people is not right, or reflective of our values. What we need is action.”
This post was originally published on this site be sure to check out more of their content.
