Last week, in a concurring opinion in the case of Davis vs. Ayala, U.S. Supreme Court Justice Anthony Kennedy addressed the fact that the defendant had been held in administrative segregation, or solitary confinement, for the bulk of the 25 years that he had spent on death row. Justice Kennedy’s apparent motivation in doing so was to invite further discourse in the judicial system and the community at large on a practice that has been described at various times throughout the ages as subjecting prisoners to various levels of insanity, even resulting in suicide.

Such was the case of 22-year-old Kalief Browder, who took his own life last month as a result of the psychological trauma he suffered after spending the better part of two years in solitary confinement on Rikers Island.

In a poignant passage of his opinion, Kennedy observed that too often the judiciary and legal academics confine themselves to discussions of guilt and innocence without giving consideration to the conditions in which prisoners are confined. Once people are sentenced, they are out of sight and out of mind, in a place where judges and lawyers assume that policymakers and correctional experts will attend to the details of discipline and resulting deprivation of privileges.

As a district judge chambered in Washington County, where both the high-security Stillwater prison and the Oak Park Heights supermax prison are located, I routinely am made aware of disciplinary processes and remedies employed after rule violations and assaults committed within those prison walls. This experience has taught me that Justice Kennedy has raised an issue that merits discussion here in Minnesota, one that should happen sooner rather than later.

Granted, prisoners do commit acts worthy of punishment, most notably assaults against one another as well as against correctional officers. The resulting disciplinary process begins almost immediately, and includes notice of charges, provision of counsel and a hearing followed by a written opinion authored by the hearing officer. In a very high percentage of these cases, guilt is established either by plea or by the hearing officer’s findings, and the remedy imposed is a period of time in solitary confinement. The length of confinement is dependent on the severity of the offense and the number of prior disciplinary infractions. The offender’s expected release date also is extended, usually by about a third of the amount of time that he spends in solitary.

Often, however, that is not the end of the matter. Depending on the case, representatives of the Minnesota Department of Corrections very frequently ask the Washington County attorney to prosecute the offender on felony assault or related charges. Assuming that the new criminal charges yield a conviction, whether by plea or jury verdict, Minnesota sentencing statutes require judges to impose a new sentence that is consecutive to the one being served when the disciplinary infraction occurred.

In this context, it is not uncommon that I encounter men who have served 24 continuous months and more in solitary confinement. As in many other prison systems around the country, these prisoners spend 23 hours per day confined to their cell in a special wing of the prison.

Depending on their level of confinement, they are allowed out for an hour to shower and for isolated exercise once a day for lower levels of confinement or only a few days per week at higher levels. If allowed any visits at all, the number and conditions are tightly regulated and never include tactile contact. All meals are taken in the cell, which was correctly described by Kennedy as equivalent in size to a parking space. Lights are left on 24 hours a day, and toilet flushing is regulated. Visits by staff psychologists may occur once every 30 to 90 days, and usually consist of a short interview through the book pass of the solid metal door. While confined under these conditions, prisoners often decompensate and commit new offenses, leading to more disciplinary proceedings and more time in solitary, followed by more criminal charges in District Court.

Is this practice a necessary evil, for which there is no less drastic alternative? Officials in states as far-flung as Maine and Mississippi have recently re-examined their policies on the use of solitary confinement and have significantly curtailed the practice, based on findings that treatment of offenders as humans produces far better behavior. U.S. Sen. Dick Durbin, D-IIl., also has chaired hearings on solitary-confinement practices employed by the U.S. Bureau of Prisons and has found them to be in need of significant reform. Even the United Nations Special Rapporteur on torture, Juan Mendez, has identified confinement in solitary for 15 days or more to be a form of torture and has called for a ban of its use in most instances.

Perhaps the time has arrived here in Minnesota to have the discussion invited by Justice Kennedy, and to begin that conversation by obtaining facts from the Minnesota Department of Corrections regarding the number of inmates held in solitary and the lengths of their confinement.


Susan R. Miles is a Washington County district judge.