[*an earlier version of this article was first published in March 2019 in the ICPA Expert Network on External Prison Oversight and Human Rights’ Newsletter]
In this blog, Dr. Sharon Shalev examines how to adopt a human rights centred approach in the use of solitary confinement in prisons.
Monitoring and evaluating solitary confinement
Solitary confinement is one of the oldest and most universally used prison practices. It is also one of the harshest and most damaging prison practices. Yet, despite its potential health and human rights implications, until fairly recently international human rights law mostly remained silent on the subject. This changed with the adoption of the revised (2015) UN Standard Minimum Rules for the Treatment of Prisoners (the ‘Nelson Mandela Rules’) which dedicate an entire section to solitary confinement. The Rules offer the most up to date, comprehensive, international expert opinion on the practice, representing the current thinking, knowledge and sensibilities on the subject, while remaining practical and realistic in their understanding of how prisons operate. I have also found, in my own work in England and in New Zealand, that the Mandela Rules provide an excellent framework for inspecting and assessing conditions of confinement in general and solitary confinement units in particular. In what follows I briefly discuss the key issues that I look out for when I inspect solitary confinement units.
Defining solitary confinement
But first, what is solitary confinement? For the first time in international human rights law, the Mandela Rules offer a definition, resolving the problem of the different names used for what is essentially the same practice in different countries (e.g. segregation; separation; isolation), and for the units where solitary confinement takes place (e.g. special management; control units; care and separation; special security and; supermax security, to name a few). The definition in Mandela Rule 44 shifts the focus away from titles and names to what solitary confinement entails in practice:
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
This definition makes it clear that, when a prisoner is confined to a cell for 22 hours or more, that constitutes solitary confinement, regardless of the reason for this confinement or its name. The definition also hints at the detrimental effects of solitary confinement by setting acceptable timeframes for the practice: no longer than 15 consecutive days. Beyond this time frame it may constitute inhuman or degrading treatment, and hence prohibited under international law..
What constitutes ‘humane conditions’ and ‘meaningful human contact’?
The Nelson Mandela Rules, alongside a long list of other human rights treaties and conventions, make it clear that all prisoners, including those in solitary confinement, retain their basic human rights and be treated with dignity and respect. One aspect of this are the material conditions of confinement, which are often very poor in solitary confinement units. Evaluating these is straightforward and includes inquiring about cell size and provisions. Does the cell have a window, is it clean, does it provide enough natural and artificial light? Is there a basin with drinking water? Is there a toilet? Is it separate from the main cell area? Does it have a lid and a seat? Is there an alarm bell in the cell? Does it work? Are prisoners penalised if they use it? Can prisoners keep personal belongings inside the cell? Do they have a TV? Can they control which channel they watch, and when? These elements would help indicate not only if prisoners are treated humanely, but also how much sensory stimulation they can enjoy, and how much personal autonomy they can exercise.
The term ‘meaningful human contact’ is less straightforward, and since the adoption of the Mandela Rules we have already seen some debate around what constitutes ‘meaningful contact’. A group of independent experts (of which I was part), convened for the purpose of providing guidance on the interpretation and implementation of the Mandela Rules, suggested that:
Meaningful interaction requires the human contact to be face to face and direct (without physical barriers) and more than fleeting or incidental, enabling empathetic interpersonal communication. Contact must not be limited to those interactions determined by prison routines, the course of (criminal) investigations or medical necessity. (pp 88-89)
In other words, giving a prisoner their food tray or escorting them to the exercise yard do not constitute ‘meaningful contact’. Interacting with them in a respectful way and treating them as the human beings they are – asking how they are, chatting to them about their family, football, the weather – do. When monitoring and evaluating solitary confinement units I find that ‘meaningful contact’ is one of those things that you recognise in its absence. As well as observing whether staff practice dynamic security and their interactions with prisoners, chatting to staff helps to ascertain the degree to which they are familiar with the prisoners and their particular needs, issues and triggers.
Beyond being treated with respect for their human dignity, isolated prisoners should be provided with means to occupy themselves through access to programmes, education, and vocational training, where possible alongside others. Visits should be encouraged and facilitated. Time in solitary confinement should be used constructively and address some of the issues which led to the individual’s placement. This can be assessed by looking at the daily regime and time out of cell offered to prisoners; their personal management plan; the setting of targets for progression out of solitary confinement and so on.
Placing breaks on the use of solitary confinement
Mandela Rule 43 prohibits altogether the use of prolonged (longer than 15 days) and indefinite solitary confinement as punishment. Within the permitted timeframe, Rule 45(1) further elaborates:
Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.
The placement of a prisoner in solitary confinement must be lawful and subject to independent review. This can be ascertained through the paperwork accompanying the placement and is fairly straightforward. The terms ‘exceptional cases’ and ‘last resort’ require more digging around. The records must demonstrate why it was decided that there was no other choice than to segregate the prisoner and document any other, less restrictive avenues which had been tried and failed. The number of prisoners in the unit, and the reasons for their placement, should help ascertain if solitary confinement is used routinely or if it is reserved for a handful of exceptional cases. The collection of good quality data and analysing it for trends is of course crucial.
The Committee for the Prevention of Torture (CPT) helpfully developed a set of five tests for assessing solitary confinement in any one case, summarised as PLANN. Was the placement:
- Proportionate (is the harm/potential harm caused by, or to, the prisoner sufficiently serious to warrant solitary?)
- Lawful (competent authority? procedures followed? prisoner able to make representations?)
- Accountable (are there full records of the decision process and the daily regime?)
- Necessary (are only the least restrictive measures applied? are these individualised and flexible?)
- Non-discriminatory (is solitary confinement used disproportionally with a specific group of prisoners?)
Additional guidance can be found in the United Nations Office on Drugs and Crime’s (UNODC) helpful checklist for assessing compliance with the Nelson Mandela Rules, and the Association for the Prevention of Torture and Penal Reform International’s series of practical guides to assist monitors in assessing prison conditions in general, and solitary confinement in particular.
If all these tests had been met, the placement of a person in solitary confinement may be acceptable treatment. However, people belonging to one of a number of categories listed Mandela Rule 45(2) must never be isolated:
The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures. The prohibition of the use of solitary confinement and similar measures in cases involving women and children, as referred to in other United Nations standards and norms in crime prevention and criminal justice, continues to apply.
These prohibitions are well grounded in the literature highlighting the particularly devastating health effects of solitary confinement on these populations, and backed by other international human rights instruments and professional organisations.
Lastly, Rule 46 establishes a system of internal and external oversight, and set out the role of health professionals in solitary confinement units – to closely monitor the health of isolated prisoners, but to take no part in the imposition of solitary confinement.
The fact that solitary confinement has been with us since the early days of the prison must not blind us to its harms, nor to its limited utility in achieving much beyond physically containing the individual separately from others. For too long prison managers and administrators have resorted to its use simply because it was there. When evaluating its use, we need to encourage prison officials to reflect on what exactly is hoped to be achieved by the placement of another human being in conditions which are likely to harm them. We need to ensure that solitary confinement is reserved as a tool of last resort, when all else has failed and when no lesser restrictive method could achieve the purpose of the isolation. And then it must only be used for a very short time, whilst respecting the prisoner’s basic rights and treating them with dignity and respect. We must also insist that if it looks and feels like solitary confinement, it probably is solitary confinement, no matter what it is called, and emphasise that it is an extreme and damaging practice which should be reserved for emergency situations, subject to strict safeguards, rigorously applied and closely monitored.
 The CPT is a Council of Europe body mandated to carry out monitoring visits in prisons and other closed institutions throughout Europe.