Last month, the U.S. Supreme Court declined to review the case of Michael Johnson, a man confined to a solitary cell twenty-four hours per day, who was held in solitary confinement at Pontiac Correctional Center, a prison two hours from Chicago.
Johnson, who is considered seriously mentally ill, based on his diagnosis of bipolar disorder and severe depression, is confined for 24 hours of every day, in a “windowless, perpetually lit cell about the size of a parking space, “ wrote Ketanji Brown Jackson, joined by Elena Kagan and Sonia Sotomayor, in their dissent when the majority chose not to review Johnson’s case.
Johnson does not even accorded the usual one-hour spell outside his cell for exercise that some in solitary receive.
The Seventh Circuit Court of Appeals, which covers federal appeals in Illinois, Indiana and Wisconsin, held that the practice of denying an inmate access to the outdoors was appropriate—except in the case of “trivial” offenses.
The specifics of Johnson’s offenses were not disclosed in the Court’s opinion.
Johnson’s total of ten disciplinary violations are more closely detailed in the hearing briefs.
In the briefs, Johnson was accused of “impair[ing] surveillance, disobeying an order, insolence, property damage, giving false information to an employee”, covering his door window with feces, possessing another prisoner’s social security number, overflowing his toilet, “spitting at or in the direction of others” and “throwing an unknown liquid substance.” The last two actions were classified as assaults.
Because the high court refused to review the appeals court decision, it threatens to block other inmates across the country who try to free themselves from similar conditions. Right now, an inmate can be kept inside a tiny room without access to any kind of fresh air, light, and space.
Reforming prison discipline and freeing people from isolating conditions that deteriorate their physical and mental health may require more rules and regulations, but it’s also going to need a shift in prison institutional culture.
The effect of prison discipline exceeds the solitary cell
Solitary confinement isn’t the only sanction that discipline can bring. Other sanctions like losing telephone, mail, visiting, or commissary privileges are more common than isolation.
The effects of prison discipline spill well beyond one’s living conditions. They also can affect an incarcerated person’s rehabilitative programming, eligibility for release, and in a few cases where prosecutors use disciplinary records in judicial proceedings, even the length of one’s sentence.
A disciplinary record within prison can keep an inmate from accessing prison education. Schools often select those students who have no disciplinary history and a fresh “ticket” or “shot” — as they’re colloquially called — can pull someone from ongoing educational programming.
Parole boards, of course, regularly consider disciplinary histories when contemplating releasing someone on supervision.
As noted in Part 2, the results of most prison discipline systems are inherently unreliable, as they can vary widely from prison to prison, and from unit to unit within individual prisons. Nevertheless, they been used in penalty phase proceedings in capital cases, attempting to show what’s called “future dangerousness” to persuade a jury to condemn a defendant to death.
Matters are made worse by the fact that comparatively minor instances of misbehavior are often blown out of proportion. For example, South Carolina prosecutors argued that a prisoner’s infrequent showers proved his propensity to re-offend.
The State of Texas introduced nine violations in its case against Calvin Eugene King in 1994. King had awakened late, missed a work assignment, and not appeared in a prison class. District attorneys tried to present these minor transgressions as evidence of poor character. King’s defense attorneys argued the opposite position on the oversleeping, and missed work assignment, which they presented as an indication of a non-violent disposition.
Staff accountability in California prisons is low
It is further problematic that some prison employees similarly misbehave inside prison, yet with far less accountability than their charges.
A report released last year by California’s Office of the Inspector General followed up on an earlier report from 2019, and concluded that there was little consequence for misbehaving prison staff.
In the 2019 review from the CA OIG, the authors assessed the Salinas Valley State Prison’s process of handling inmate allegations of staff misconduct. The OIG reviewed 188 of these “staff complaints,” and discovered all but six did not result in any action taken toward the officer who allegedly offended.
After the OIG report, the California Department of Correction and Rehabilitation (CDCR) submitted a budget proposal for $9.8 million to establish a new unit called Allegation Inquiry Management Section (AIMS), and to hire an additional 36 lieutenants who were charged with thoroughly reviewing 468 complaints per month, or 5616 per year.
The problem was that the AIMS unit wasn’t able to complete 10 percent of its expected workload, namely because the state’s prison wardens referred a grand total of 541 complaints to AIMS, out of 2339 complaints made against staff between April and August 2020. In other words, seventy-seven percent of the complaints against guards during those months, never reached the new oversight unit.
California Inspector General Roy W. Wesley wrote in the OIG’s February 2021 special review report that his office was “deeply concerned” about how little the CDCR investigated allegations of wrongdoing by its own staff.
Staff/inmate relations have a profound impact on misconduct, both real and perceived. The lack of accountability for guards creates a permissive atmosphere that allows disciplinary action to repeatedly stray beyond appropriate boundaries.
While across the U.S., corrections officers are permitted to guard themselves, in many other countries, namely France, external and internal agencies monitor staff and ensure that misbehavior has real-world consequences. Unsurprisingly, when inmates perceive that procedural justice is in place, including in the case of corrections officers, their rates of misbehavior decline.
Changing the system isn’t impossible.
Looking to the court system to rescue people from solitary confinement doesn’t work, as evidenced by the U.S. Supreme Court’s de facto approval of denying Michael Johnson any fresh air. But it’s not just the top nine jurists who dropped the ball on the issue. Many state and federal judges don’t understand the prison disciplinary systems that underlie the use of solitary.
Lawyers aren’t much better at comprehending how discipline is meted out to their clients. In the penalty phase of the death penalty trial of Melissa Lucio — the first Latina woman on Texas’ death row — both her attorneys and the prosecutor believed she had a disciplinary record when she didn’t. That misrepresentation to the jury — that she caused trouble while awaiting trial — almost certainly affected jurors’ assessment of her case and may have helped them justify imposing a death sentence.
There are, fortunately, several proposals on a state and federal level to limit or eliminate restricted housing. The proposals include the federal End Solitary Confinement Act and, in 2021 alone, legislators sponsored 70 separate pieces of legislation in 32 states.
For the most part, lawmakers seem to avoid the task of fixing the system that dumps people into isolation.
In recent years, however, a few changes have developed. In 2019, two jurisdictions, Massachusetts and Washington, DC, established a right to representation in disciplinary proceedings. The effect of this right to representation hasn’t yet been evaluated. But it’s a beginning.
And in the fall of 2022, Michael Fahy, then a third-year law student at The Ohio State University’s Moritz College of Law, came up with the idea of the Model Institutional Record Expungement Act or MIREA. MIREA’s purpose would be to clear out old disciplinary report convictions. After one year, prisons would expunge minor violations and do the same for more serious violations after three years.
Implementing a program like MIREA would help to erase the cumulative effect of prison discipline, thus making placement in isolation harder for prison administrators to justify. It would also allow people to qualify for rehabilitative programming and supervised release, when previously an old disciplinary record could make someone ineligible
Other suggestions have surfaced, such as insisting that the Commissioner of Corrections approve every placement in solitary and have to sign off every single day that continued restrictions are necessary.
To change the system you have to “drive” the system
Some reformers believe that scrapping the entire system and coming up with something alternative holds the most promise.
Researchers in Canada found that a “therapeutic community, a system that relies less on control and punishment and more on conversation and community, reduced misconduct in a statistically significant way.
Notably, guards working with these therapeutic communities (TC’s) adopted techniques of diffusing heated situations that were being used inside the special community. The study’s authors characterized the guard’s acceptance of the as “widespread staff adoption.”
There were other notably improved staff outcomes in the TC’s, wrote the researchers, “such as less correctional officer absenteeism, less inmate assaults on staff, less injuries by staff if assaulted, more concern for offender well-being and higher ratings by staff of the prison environment.”
Back in the U.S., the Vera Institute of Justice’s Safe Alternatives to Segregation Initiative chose the Oregon Department of Correction as one of five sites to try some new approaches. With the help of Vera, Oregon created a step-down unit for those leaving isolation, a place where they could prepare to re-enter the general population.
Starting in January 2020, fifty-six people were selected for the step down unit, but the COVID-19 pandemic intervened and prevented meaningful testing.
Nevertheless, a bright spot emerged in the reaction of correctional employees involved with the unit, who reportedly began to understand their role in the problem.
More specifically, they began to see the need to align their own intentions and their practices, if they were to reform their use of solitary confinement.
As one senior security staff member told researchers, “To change a culture, you’ve got to drive the culture and show people it’s okay.”
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.