The Real Culprit in the Overuse of Solitary Confinement: Prison Disciplinary Systems – Part 2 of a 3-Part Series

On Wednesday, December 20, the City Council of New York voted to ban solitary confinement in the city’s jails.

The movement to abolish solitary is also showing up on a national level.  The United States Senate’s counterpart to New York City’s ban is the “End Solitary Confinement Act,” introduced by Senator Ed Markey (D) on December 5. If passed, the bill will prohibit placing any federal prisoner in isolated housing, except for in a few circumstances.

The problem is that the number of those affected by these two legislative developments is small. Federal prisons account for 10% of the nation’s incarcerated population. Thus, the law wouldn’t affect the other 90% of the 120,000 people living in restricted conditions.

The head counts in Rikers Island and NYC’s Department of Correction wax and wane so it’s unclear how many will benefit from the New York City law.  

Banning the practice may seem like a solution but it has failed in the past. The State of New Jersey effectively banned placing people in conditions of isolation in 2019, yet an October 2023 report from the Office of the Corrections Ombudsperson found that New Jersey’s prisons routinely flouted the law.  

Among the obstacles to doing away with the practice (which those who have experienced it, including the late Senator John McCain, describe as torture) is the fact that we won’t empty restricted housing units unless we reform the way that people enter them: the prison disciplinary system.

These in-house punishment processes deserve a fresh look and a revamp if prisons intend to whittle their populations in isolation. Right now, changing how discipline functions in carceral spaces should become a priority. 

What we’re really talking about when we say discipline

Prison discipline attracts little popular attention because it suggests continuing misbehavior and a lack of rehabilitation. 

But understanding what actions constitute misbehavior is key to the campaign against solitary confinement. While prisons isolate some people for fighting and assaults, other violations are for actions that people do ethically, legally, and safely in daily life.

Some common offenses that trigger prison discipline, for example, are acts such as possessing an expired inhaler, a pen with green ink (wardens often write in green ink), or arts and crafts supplies. An excess of yarn can also be a cause for discipline, as is taking a piece of fruit that was served from the dining hall back to one’s cell, in that both items are seen as “contraband,” that is objects that are used in a manner not intended. Possessing too many books can be another no-no. 

A 1989 survey by California’s Prisoner Rights Union (PRU) sought to measure the prevalence of extreme forms of discipline in the American prison system. Six hundred and fifty prisoners in 41 states across the U.S. completed questionnaires about their experience with discipline. The top reason for being disciplined, according to inmates, wasn’t fighting or smuggling contraband. It was mouthing off to guards. 

While disrespecting others is rarely appreciated in any environment, it’s not against the law. Furthermore, it’s not clear that these people who allegedly spoke to staff members in unflattering ways weren’t defending themselves or someone else. 

The most common prison disciplinary offense is pretty mild and wouldn’t normally result in time in isolation. But when those minor infractions pile up, they enhance the punishment doled out at the next disciplinary report. In Texas, for example, cumulative infractions license prison administrators to impose consecutive terms of “cell restriction,” a policy of imposing solitary confinement-type restrictions outside the traditional solitary housing unit.

Even if they’re persistent, minor infractions, such as those listed above, aren’t the kind of offenses that warrant a torturous response, namely solitary confinement. 

Drug use pervades certain facilities, but punishing narcotic use is problematic. In 2019, the New York Department of Corrections and Community Supervision (NYDOCCS) punished 1600 people for positive drug test results that were later revealed to be false, according to a January 2022 report by NYDOCCS, which found that substances like Stevia and antacids were enough to set off a positive test. 

What made these false positives worse, according to the report, was the fact that prison staff knew they were supposed to follow up any positive test results with a different, more sensitive test. Yet, the staff often re-tested with the same faulty kit. Many of those affected by the faulty tests protested the bad results but they were still led into isolation, denied timely parole hearings, and sanctioned through loss of visiting privileges.  

Yes, violent acts also constitute disciplinary code violations. Prisons have their fair share of fights and assaults. But assessing these allegations warrants caution according to Daniel Manville, a Professor at Michigan State University School of Law and an expert on prison discipline.  In an email to the author, Manville estimated that as many as 40 to 50 percent of major discipline reports — the type for which punishment would be segregation —  “are false.”

There’s a flip side to the pattern of overzealous discipline that plagues many facilities. Weirdly, those same facilities either greenlight or simply ignore, bad, even criminal, acts by inmates who escape consequences again and again. 

In a case that received international attention in November of this year, Alabama prisoner Daniel Williams was drugged, hog-tied, and raped, basically to death at Staton Correctional Facility in Elmore, Alabama. The inmate suspected in this homicide had a record of sexual violence against other incarcerated men, nine internal reports in five years.

Yet there’s no record of the Alabama Department of Correction disciplining the suspect meaningfully for these earlier assaults.  “He seemingly had free rein to assault additional incarcerated people,” said Carla Crowder, Executive Director of the Appleseed Center for Law and Justice, in testimony to the Alabama Legislature’s Joint Prison Oversight Committee’s open hearing on December 13, 2023. 

Alabama corrections officials have little defense for their stunning lack of behavior management. They didn’t fail to discipline the suspect, they refused to do so. Virtually no evidentiary hurdles block a guilty finding in prison disciplinary proceedings. If officials had wished to use accountability to stop this suspect’s penchant for violence, nothing legal stood in their way.

Kangaroo Courts

The accusations that proceed to a formal hearing don’t undergo rigorous adversarial testing, “Unless you’re going to solitary for more than six months, you basically don’t have any rights at all,” Manville said.

In 1974’s Wolff v. McDonnell decision, the U.S. Supreme Court defined the contours of prisoners’ rights in the internal discipline system.  SCOTUS held that prisoners don’t get full due process protections, but they are entitled to written notice of the charges, a written statement of evidence, and the opportunity to call witnesses and present countervailing evidence.

Eleven years later, though, the nation’s highest court dealt another blow to inmates’ rights with its decision in Superintendent v. Hill when it established an evidentiary standard required for hearings that’s laughably low.

The law, as it stands right now, dictates that only “some evidence” is the standard by which an accused person is found liable for misconduct in prison. This means even if there’s more exculpatory evidence than there is proof of guilt, “some evidence” of guilt suffices to find an inmate guilty of an accusation. A guard’s word is more than enough for a disciplinary conviction.

It’s important to note that this system doesn’t match any legal standard of evidence. Courts use four standards. “Beyond a reasonable doubt,” is used for criminal convictions and “preponderance of evidence” is used in civil cases.  “Clear and compelling evidence” is another standard for certain civil proceedings such as those regarding fraud, breach of contract, or issues related to intellectual property.

“Probable cause” is the standard for arrest and search warrants, which means it’s more likely true than false.  Quantified, ‘probable cause” means the authorities have proof that they’re 51% correct.

“Some evidence” is lower than that.

Fact-finding, however, is not the mission of prison discipline. Representatives for the federal government admitted as much in an amicus brief in the Wolff v. McDonnell case, filed by then-Attorney General Robert Bork. The United States—which wasn’t a party to the case, but decided to weigh in anyway—argued that an inmate’s interest in accurate factual findings in a disciplinary proceeding didn’t outweigh the state’s interest in wielding its power over that inmate.

In short, this artificial standard of “some evidence” shows how easy it is for prison authorities to impose discipline, including years in solitary confinement.

No regulation

Because little legal framework has been erected to prevent excessive responses to perceived infractions, prison disciplinary sanctions are often overkill. But lack of oversight isn’t limited to discipline. Very few aspects of prisons and jails are regulated and/or overseen in any meaningful way. They operate in what UCLA School of Law Professor Aaron Littman calls “a deregulatory state of exception.”  

This means that the primary hope for intervention is in the courts.  However, getting relief from judges is next to impossible for an incarcerated person. The Prison Litigation Reform Act (PLRA), a federal law enacted in 1996 to reduce the number of lawsuits filed from prison, established hurdles an aspiring plaintiff must clear even to get a hearing.  When a prisoner successfully scales the legal barriers found in the PLRA and reaches some type of adjudication, judges almost universally side with prisons in disciplinary matters. 

In the absence of regulations that apply to correctional facilities, both state and federal courts develop the law that governs what happens inside them, usually looking for constitutional violations rather than statutory ones, because, with the lack of regulation, the latter violations are few and far between. 

This isn’t how the Wolff Court envisioned oversight of the prison discipline system, state or federal. In the case of Wolff, the U.S. Supreme Court held that an incarcerated individual’s ‘liberty interest,” as certain rights are generally known, wouldn’t be determined by the Constitution but rather by state statute.  That left inmates at the mercy of their state legislatures, bodies that rarely or never passed regulatory bills when it came to laws governing prisons.

Whether it is derived from court decisions or the collective political will of elected representatives, the canon of law on prison discipline gives wide — almost unfettered — latitude to wardens and prison officials. 

Discipline looms larger in prisons

Discipline looms large in daily prison life. A snapshot of one year of disciplinary reports in some of the states that fall into the nation’s top third for incarceration shows how often guards pull out a form to allege misconduct.  

In Missouri, 26,874 disciplinary reports were written in the year between July 1, 2017, and June 30, 2018, even though in 2018, there were only 30,037 people in custody in Missouri. In Florida, a state that incarcerated 95,622 people in 2018, 102,688 disciplinary reports were issued. In Louisiana, where 16,673 people were in custody, guards wrote 43,390 tickets.  

Iowa has a far smaller incarcerated population — 8,290 people.

Yet, there were 2,548 prisoners in Iowa, in the calendar year of 2017, who received a discipline report with “Earned Time Taken.” For those 2,548 prisoners, 81,274 days they had earned were taken back by the state in the single year.

It’s not clear which of these reports landed someone in solitary confinement. But, in each of the three states, other sanctions applied, including a loss of “good time” — days earned off one’s sentence for good behavior.  Stacked up, the loss of good time in the three states is staggering.

In Iowa, those 2548 tickets written grabbed 81,274 days of good time or 222 years. In Louisiana, 419,332 days — the equivalent of over 1148 years — were lost to disciplinary measures.  In Florida, disciplinary reports stripped the population of over one million — 1,005,600 — good-time days. That’s 2755 years — which if stacked end to end would take us back to 732 B.C.  — lost in a single year.

Because these lost good time years are spread across many prisoners, it’s impossible to calculate the economic costs to state budgets of these policies. The loss of freedom, though, is severe and, very likely, rarely necessary for public safety.

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Author Chandra Bozelko is an expert on a broad number of issues related to criminal justice reform.  She also has personal experience with the topic.

A magna cum laude graduate of Princeton University, Bozelko was in the middle of postgraduate study in law and public health when she was arrested for non-violent crimes that remain on appeal.  She served more than six years at the York Correctional Institution, Connecticut’s state-run women’s prison. 

While locked up, Chandra was the first inmate to write a regular newspaper column from behind bars.  Her prize winning column, “Prison Diaries,” has been followed, since her release, by a book of poetry, and commentary for such publications as The Wall Street Journal, The New York Times, The New York Times Magazine, USA Today, US News and World Report, The Los Angeles Times, The Washington Post, Elle, Ms. Magazine, The Guardian and more.   As she wrote, Bozelko continued to gather prizes.

Now Chandra Bozelko is a contributor to WitnessLA so watch for her column, “Inside Job.”

The reporting for this 3-part series was done in fulfillment of Solitary Confinement: Unfinished Business Fellowship sponsored by the Jacob and Valeria Langeloth Foundation at the Center on Media, Crime and Justice at John Jay College.