Will Biden Step up on Solitary Confinement?

This story was published in partnership with Solitary Watch.

“Biden believes no act can justify the inhumane treatment of an individual in the hands of the government.” This surprisingly powerful statement appeared in the sweeping criminal justice reform platform released during the 2020 presidential campaign as part of then-candidate Joe Biden’s pledge to “ensure humane prison conditions” should he be elected. His first step towards fulfilling this promise, according to the statement, would be “ending the practice of solitary confinement, with very limited exceptions such as protecting the life of an imprisoned person.”

It was a logical place to begin, given the growing international consensus that solitary confinement is torture, as well as mounting evidence of its throng of physiological and psychological consequences—from psychosis, self harm, and suicide to recidivism, unemployment, and drug overdoses after release. Short of the death penalty, solitary confinement is arguably the cruelest form of punishment the United States government leverages against its own citizens today.

Advocates have been trying to hold Biden to his word. In June 2021, a group of more than 150 organizations sent a joint letter to the administration urging it to move forward with plans to fulfill the campaign promise. A “Blueprint for Ending Solitary Confinement by the Federal Government,” released the same month by the Federal Anti-Solitary Task Force (FAST), outlines a comprehensive legal and administrative framework with which the administration could curtail the practice in federal prisons and beyond.

“Ending the practice of solitary confinement would end the pain, torture, and trauma of tens of thousands of people languishing in harsh and harmful conditions,” the letter concluded.

But in his first year in office, the only known movement on solitary confinement to emerge from the White House has been a single paragraph in a 17-page draft Executive Order on criminal justice, composed over the course of fall 2021 and leaked in early January by the right-wing website The Federalist.

Focused largely on policing, the order contains one section titled “Improvement of Conditions of Confinement.” One subsection, which until now has not been reported on, instructs Attorney General Merrick Garland to “submit a report to the President detailing the steps the DOJ has taken…to ensure that Restrictive Housing in federal institutions is used rarely, applied fairly, and subject to reasonable constraints” and “to help ensure that individuals in DOJ custody are housed in the least restrictive setting necessary to ensure their safety and the safety of staff, other prisoners and detainees, and the public.”

In order to have anything to report, the Justice Department would presumably need to quickly institute meaningful changes to its policies and practices in the area of solitary—something that, according to the numbers alone, as well as accounts from journalists, advocates, and incarcerated people, it has so far failed to do. What those changes might be is anyone’s guess, since the language, though pitched in the direction of reform, is vague and a long way from the wording of Biden’s campaign pledge.

What’s more, the leaked draft of the executive order has been met with incensed reactions not only from the conservative media but also from House and Senate Republicans and police unions. Some backtracking on the policing reforms, at least, seems likely.

Anti-solitary advocates have not given up hope, though. FAST members have met with staff of the White House Domestic Policy Council, and are still pressing for a meeting with the Justice Department, according to Jessica Sandoval, director of Unlock the Box, one of the organizations principally responsible for the letter and the blueprint. They also believe the administration may soon issue an executive order focused specifically on solitary confinement. “Biden has the opportunity to make significant strides on a fundamental human rights issue,” Sandoval said, “even while he is under pressure on other criminal justice reforms.”

A Past to Reckon With

Both Biden and Harris have plenty to live down in their political pasts if they want to be taken seriously by advocates of prison reform and decarceration. Joe Biden has earned widespread criticism from opponents of mass incarceration for his role in the Violent Crime Control and Law Enforcement Act of 1994. The “Biden Crime Law,” dubbed so by the President himself as recently as 2008, helped propel the “tough on crime” approach that has come to define the country’s proclivity for harsh punishment and mass incarceration.

There can be little doubt that the 1994 crime bill directly contributed to the expansion of solitary confinement across the country. Two provisions of the law, known together as Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) funding, financially rewarded states for ensuring those convicted of certain crimes served a substantial portion of their lengthy sentences.

A 2003 report by the Correctional Association of New York, an independent prison oversight group, found that after the New York legislature voted to dramatically restrict parole opportunities, the state was awarded nearly $200 million in VOI/TIS funds. All of these funds, according to the report, went to building “high-tech lockdown facilities,” including both solitary confinement units and a supermax prison, with a combined capacity of 3,000. The consequences of such isolation were tragic; the report also found that despite never constituting more than 10 percent of the correctional population, people held in solitary accounted for more than half of suicides committed in the New York prison system between 1998 and 2001.

According to a 2012 report by the U.S. Department of Justice, New York was just one of dozens of states across the country to directly allocate VOI/TIS funds in the late 1990s and early 2000s to adding prison beds, including some used for solitary confinement, and to “harden” the security level of existing units.

Kamala Harris first significantly engaged with calls to end solitary confinement as California’s Attorney General. In 2013, 30,000 people incarcerated throughout the state went on hunger strike to protest the use of solitary confinement. The California Department of Corrections and Rehabilitation (CDCR) ignored calls to limit the practice on its own, instead obtaining a federal judge’s permission to force-feed the strikers. And the state, under Harris’s direction, fought for dismissal of a class-action lawsuit on behalf of people serving “indeterminate” periods in solitary, many of whom had been isolated for ten years or more. A settlement was reached in 2015, and California agreed to reduce its use of solitary confinement.

Activists have since accused both Harris and her successors of failing to uphold the state’s end of the agreement. This month, a federal judge ruled that the CDCR continues to commit systemic due process violations in its use of solitary confinement.

What the President Can Do About Solitary

If Biden and Harris are looking to redeem themselves for their record on solitary confinement, as they generally have sought to do when it comes to criminal justice reform, there are a multitude of legal and administrative paths they can take.

As outlined in FAST’s blueprint for the administration, Biden could wield his nearly total power over the federal Bureau of Prisons to institute new limits on solitary confinement in all 122 BOP-run correctional facilities. A simple directive could change the lives of more than 10,100 individuals held in isolation in BOP prisons as of last week. That figure constitutes 7.5 percent of the total population in BOP custody (a solitary confinement rate nearly double the national average) and one out of every six people held in solitary confinement in jails and prisons nationwide, according to recent estimates.

Biden’s former boss Barack Obama used his executive power to address solitary confinement and publicly acknowledge its use in U.S. prisons and jails. In July 2015, Obama directed then-attorney general Loretta Lynch to oversee a report on the overuse of solitary in the federal prison system.

Then, in early 2016, he denounced the practice in an opinion piece for the Washington Post, where he also stated that the federal Bureau of Prisons would adopt the recommendations made in the Lynch report. These included restricting the use of solitary on juveniles and people with mental illness, eliminating it as a punishment for minor prison rule violations, and encouraging facilities to provide individuals in solitary confinement with more out-of-cell time.

An analysis completed by Solitary Watch in January 2016 determined that even had it been implemented in its entirety, the Lynch plan would have left out large segments of the federal solitary population. Since Obama remained in office for only a year, the reductions were far smaller. Under Trump, the number and percentage of individuals in solitary confinement in BOP custody grew to more than 12,000 and 8.2 percent in February 2020. The pandemic led to even more widespread isolation in federal prisons as solitary confinement became BOP’s primary tool to fight the spread of COVID-19. Conditions overall in BOP facilities reached a new low under Trump, including staffing crises, high suicide rates, physical and sexual abuse by guards, criminal activity by staff, and a shameful record of preventable COVID infections and deaths.

At the same time, the appetite for solitary reform has grown since the Obama years, says Tammie Gregg, who worked in the DOJ’s Civil Rights Division during that time and now serves as a deputy director of the ACLU’s National Prison Project. She pointed to the high number of states with pending legislation seeking to limit the use of solitary confinement as evidence that “public opinion has shifted on this front.”

Several FAST members Solitary Watch and The Appeal spoke with said they believe Biden should take much bolder steps against solitary than those proposed by Obama. The President could begin by nominating a progressive with a stated anti-solitary record to replace Michael Carvajal, the Trump-appointed BOP head who recently announced his resignation. Biden could then direct Attorney General Merrick Garland to come up with a new plan to address the use of solitary in all BOP facilities, as well as local jails and private prisons that incarcerate federal prisoners.

The goal of such a plan might be to bring the federal prison system in compliance with the UN’s Standard Minimum Rules for the Treatment of Prisoners (known as the Nelson Mandela Rules), which bar solitary confinement lasting longer than 15 consecutive days, as well as for vulnerable populations like children and people with mental illness. Or it could aim for the even more dramatic changes laid out in the FAST blueprint, which calls for abolishing solitary except as a brief emergency de-escalation measure, and creating alternatives that provide treatment, programming, and safety without extreme isolation.

Biden could also take steps to influence the use of isolation outside of the federal system. He could direct the DOJ’s Civil Rights Division to step up investigations of particularly egregious uses of solitary, and challenge them under the U.S. Constitution, Americans with Disabilities Act (ADA), and Civil Rights of Institutionalized Persons Act (CRIPA). Most recently, one of these investigations found Alameda County, California, in violation of the Eighth and Fourteenth Amendments for their use of prolonged solitary confinement in housing incarcerated individuals with severe mental illness in the county jails.

In addition, Biden could direct the DOJ’s Bureau of Justice Statistics to collect meaningful data on the use of solitary confinement in state prisons and local jails, and the Bureau of Justice Assistance to work with states and counties to reduce their reliance on solitary. The administration could offer states financial incentives to conform to certain limits on the use of solitary, such as those in the Mandela Rules. Such a move would be a particularly apt response to the legacy of federal incentives in the 1994 “Biden Crime Law.”

Time to End the Torture

Any action Biden takes at the federal level would come at a time when the public has shown a growing appetite for solitary reform. One recent survey found that a strong, bi-partisan majority of registered voters supported meaningful limits on solitary confinement, and a slim majority supported limits similar to those laid out by the Mandela Rules. The issue, all but invisible only a decade ago, is now regularly covered by mainstream press outlets from across the ideological spectrum.

Anti-solitary campaigns are now active in at least nineteen states, and legislation to limit solitary for the most vulnerable populations has passed in a number of them, with additional bills in the pipeline, according to Unlock the Box’s Jessica Sandoval. The movement got what many see as its biggest win yet in the spring of 2021, when New York state passed the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, creating the first law in the nation to command compliance with the Mandela Rules.

While pressing for an executive order that “makes good on his promise to end solitary confinement,” Sandoval acknowledges that such an action would be second-best compared with the real prize: meaningful federal anti-solitary legislation, which can’t be as easily reversed by changes of administration. Bills have been introduced in Congress in recent years, and Sandoval says that more are in the works; but so far none has moved out of committee. The clock is also ticking on the putatively Democratic majority, and congressional Republicans have shown little interest in limiting solitary for anyone but the January 6th riot suspects in the D.C. jail. The best chance for speedy relief for the approximately 10,000 people in federal solitary clearly lies with Biden’s pen.

“Biden could just say ‘I will make the U.S. federal prison system in compliance with Nelson Mandela rules,’ said Johnny Perez, a FAST member who directs prison policy for the National Religious Campaign Against Torture, and a survivor of five years in solitary confinement.

“He could lead the world in ending torture by going further than the Mandela Rules and advancing efforts to completely abolish solitary, with meaningful alternatives,” Perez said. “He could do that right now, he could tweet that tomorrow, President Trump-style… I would love to see that happen.”