Is the sun setting on solitary confinement?

In American prisons, solitary confinement refers to the practice of keeping people in concrete boxes the size of wheelchair-accessible bathroom stalls, 22 or more hours a day, seven days a week, for months or years on end.

But this practice may be coming to an end in the near future. In 2019, 28 states introduced, and 12 states successfully passed, legislation to ban or restrict solitary confinement. In 2021, New York state limited solitary confinement in all prisons and jails to a maximum of 15 days. In 2022 and 2023, California introduced the even more sweeping California Mandela Act to ban solitary of more than 15 days in any carceral facility. Many states now ban solitary confinement completely for especially vulnerable groups like juveniles (at least 23 states), pregnant women (at least five states), and those with serious disabilities (at least six states).

Much of this legislation, like the proposed bills in California, builds on the “Mandela Rules,” the name given to the most recent revision to the United Nations Standard Minimum Rules for the Treatment of Prisoners. As of 2015, the Mandela Rules condemn any term of solitary confinement extending more than 15 consecutive days and any placement in solitary confinement that might exacerbate a person’s existing disabilities.

The United States seems to be riding an international wave of momentum against the practice of solitary confinement—with good reason.

As a scholar of solitary confinement, its history, uses, and impacts, I often say we have been running a mass experiment over the last few decades. While solitary confinement has existed at least since the earliest American penitentiaries were built in the 1800s, it became much more widespread in the 1980s with the rise of mass incarceration. As states built hundreds of new prisons, most also built single-purpose solitary confinement facilities like Arizona’s Special Management Unit I (1986, 768 beds), California’s Pelican Bay State Prison Security Housing Unit (1989, 1,056 beds), and the United States Penitentiary Administrative Maximum Facility (1994, 490 beds). By 2005, an estimated 44 states had “supermax” facilities like Arizona’s SMU, California’s SHU, and the federal ADX; in the 2010s, estimates of the supermax population across the United States fluctuated from a high of 100,000 people in 2014 to a low of 41,000 in 2021.

One thing we now know is that people cycle through solitary confinement with surprising frequency. So point-in-time counts, whether 40,000 or 100,000, are likely gross underestimates of the number of incarcerated and formerly incarcerated people in the United States who have experienced solitary confinement over the past four decades of sustained investments in supermaxes. Not only do we lack accurate counts of how many people are in solitary at any given point in time or over time, but we also lack knowledge of the long-term consequences of this kind of confinement. But we know enough.

The effects of solitary confinement

Placement in solitary confinement increases the risk of individuals experiencing post-traumatic stress disorder, anxiety, depression, paranoia, self-harm, suicide, cardiovascular disease, and even, according to recent neuroscience studies on lab animals, brain shrinkage. In fact, solitary confinement is associated with its own syndrome (SHU syndrome), encompassing this constellation of symptoms. No wonder the practice is under threat. Still, being under threat is different from facing imminent extinction. A growing national and international consensus against solitary confinement should not be confused with an actual path to abolition.

Placement in solitary confinement increases the risk of individuals experiencing PTSD, anxiety, depression, paranoia, self-harm, suicide, cardiovascular disease, even brain shrinkage.

California’s aborted attempt to enact a state-level version of the Mandela Rules is illustrative. In 2022, a strong majority of both California’s Assembly and Senate approved Assembly Bill 2632, dubbed the “California Mandela Act”—a sweeping proposal to apply even more comprehensive solitary confinement restrictions than in the original Mandela Rules—to all California carceral facilities (prisons, jails, immigration detention, public and private). In addition to prohibiting solitary confinement for more than 15 consecutive days, the legislation would have prohibited more than 45 days of such confinement in any 6-month period; precluded anyone with a disability, anyone younger than 26, and anyone older than 59 from ever being placed in solitary confinement; and required four hours of out-of-cell programming even for people in solitary confinement. I could hardly imagine such limitations on the use of solitary in a state notorious for having held more than 500 men in solitary confinement in the Pelican Bay SHU for more than 10 years—at least 243 times 15 consecutive days, to be clear.

Apparently, neither could Governor Newsom: He vetoed the legislation on September 30, 2022.

California Assembly Member Holden reintroduced the California Mandela Act legislation as Assembly Bill 280 in January 2023. Supporters of AB 2632, and now AB 280, laud its principled stance. Even the Washington Post editorial board weighed in, calling the initial bill a “no-brainer” to make “an inhumane practice more humane.” But detractors worried about its costs (alleged to be in the billions), its risks (eliminating punishments for in-prison violence), and its logistics (implementation across multiple jurisdictions).

As a long-time analyst of solitary confinement, I appreciate the aspirational policies that AB 2632 and AB 280 articulate, and I am dubious about the alleged costs and risks. For instance, in day-to-day practice, solitary confinement is less a punishment for in-prison violence and more a “catch-all” for anyone (seriously mentally ill, pregnant, gender non-conforming, litigious, juvenile) who cannot function within the existing rules of the prison system. And there is no evidence that solitary confinement reduces in-prison violence. Still, I doubt whether AB 280, even if passed, will have any real impact. Even the relatively more circumspect regulations imposed with the “HALT Solitary Confinement Act” in New York state in 2021—a simple 15-day limit on the number of days in any single stint in solitary confinement—have faced active (through litigation) and passive (through simple refusal to implement) resistance.

Although it is tempting to imagine the practice will eventually be sunsetted, solitary confinement is stubbornly resilient. The Supreme Court dismissively characterized the practice as “too severe” in 1890, yet it persisted. The cycle of public scrutiny, critique, regulation, resistance, and retrenchment has repeated many times since. And the cycle is repeating again in the face of the Mandela Rules-inspired bills sweeping through U.S. legislatures. Solitary confinement reform and abolition efforts repeatedly stumble over two interrelated obstacles: the centrality of solitary confinement to incarceration itself and the absence of “outside the box” alternatives.

First, solitary confinement is inextricable from incarceration itself. Prison (especially in the United States) is an institution of deprivation—not just of freedom, but of physical comfort, personal relationships, health, identity, even life. Solitary confinement is a natural, contiguous extension of these deprivations. As long as the entire system of punishment revolves around deprivation, there will always be degrees of deprivation, with some variation of a rock bottom, whether a simple, dark, dirt hole in the ground, or a fluorescent-lit, 6×8-foot concrete box, above-ground, but still overwhelmingly resembling a coffin. The shape and aesthetics of the deprivation might vary, but the deprivation persists.

As long as the entire system of punishment revolves around deprivation, there will always be degrees of deprivation, with some variation of a rock bottom, whether a simple, dark, dirt hole in the ground, or a fluorescent-lit, 6×8-foot concrete box, above-ground, but still overwhelmingly resembling a coffin.

The efforts to reform (and, in some cases, abolish) solitary confinement treat the practice like a tumor, which can be excised from the institution of incarceration, and subsequently managed, like a cancer in remission, with regular monitoring scans. But solitary confinement is not a tumor intruding on an otherwise healthy system of incarceration. Solitary confinement is the central nervous system of incarceration, the ultimate constellation of deprivations through which all the other deprivations of incarceration are calibrated. And regular monitoring scans, or oversight, such as solitary confinement has faced in the United States in recent years, become a double-edged sword – generating outrage and regulation beyond prisons, but also encouraging retreat and concealment within prisons.

Second, imagining “outside the box” reforms is critical but rare. If a critique of solitary confinement is necessarily a critique of the broader practice of deprivation incarceration, then any sustained reduction or elimination of solitary confinement would require a different, non-deprivation-based model of punishment. But most reforms work within the existing deprivation incarceration model, negotiating about how many hours a person spends in a cell per day, how many days a person spends in a cell per month, and how many months a person spends in a cell per year, rather than questioning the existence of the cell (or box) itself. Put differently, if solitary confinement is a tumor that can be cut out of a system of incarceration, then alternatives to solitary confinement are irrelevant. If, on the other hand, solitary is the central nervous system of deprivation incarceration, then identifying alternative nervous systems is more urgent, if also more challenging.

Of course, acknowledging the breadth of the critique being leveled and engaging in considering alternative, non-deprivation nervous systems are not necessarily paths to legislative success. Moreover, in between no legislative reform (like California’s failure to implement AB 2632) and limited legislative reform (like New York’s HALT Solitary Act), there are thousands of people abandoned, buried alone in brightly lit concrete boxes.

From this perspective, even a short-sighted, doomed-to-fail reform is better than no reform – as long as we avoid any self-congratulatory complacency that the sun is anywhere near setting on solitary confinement.