New York County Defender Services

Testimony of

Sergio De La Pava

Legal Director

New York County Defender Services

Before the

Committee on Criminal Justice

Oversight Hearing - Ending Solitary Confinement in New York City Jails

&

Int. 2173-2020

December 11, 2020

My name is Sergio De La Pava and I am the Legal Director of New York County Defender Services (NYCDS), an indigent defense office that every year represents tens of thousands of New Yorkers in Manhattan’s criminal. Thank you to Council Member Dromm, the Public Advocate Williams, and Council Members Lander, Reynoso, Rivera and Levin for proposing significant reform to the practice of solitary confinement in our city jails.  I have been representing clients accused of crimes in this city for twenty-five years and that perspective allows me to fully appreciate just how critical and long overdue this reform is.

Sometimes a moral imperative becomes crystal clear. New York must end the state-sanctioned psychological torture that is solitary confinement. Imposing extreme isolation on a prisoner is inhumane and serves no rehabilitative purpose. The practice causes severe psychological trauma that can cause permanent damage to a person. It is never justified. But New York’s current approach is especially unjustifiable. We impose isolated confinement far too broadly and routinely. It can be imposed in response to non-violent conduct and it is imposed for far too long a period of time.  In the state system, prisoners can be victimized by it for months, years, or even decades, with little recourse to due process or other acknowledgement of their basic human worth. Any reform that reduces the scope of this baleful practice is urgently welcome.

WHAT IS THE DROMM BILL?

This local law would set new restrictions on the use of solitary confinement and restrictive housing in New York City jails.

SOLITARY CONFINEMENT

The Dromm Bill (Int. 2173-2020) would ban the use of solitary confinement unless such confinement is necessary to de-escalate immediate conflict.  Even in those instances, an incarcerated individual may be placed in such confinement for no longer than four hours immediately following such conflict.

The bill also requires that whenever solitary confinement is used, the department shall prepare an incident report that includes a detailed description of why isolation was necessary to de-escalate immediate conflict and also the length of time the incarcerated individual was placed in solitary confinement. Also, incarcerated individuals placed in solitary confinement shall have access to at least ten hours outside their cells.

RESTRICTIVE HOUSING

The bill would also limit the use of so-called restrictive housing to no more than four months in any twelve-month period. It also dictates that restrictive housing cannot be used unless a hearing on such placement is held pursuant to the rules of the board of correction. The placement of an incarcerated individual in restrictive housing shall be reviewed every fifteen days to determine whether the incarcerated person continues to present a significant threat to the safety and security of the facility if housed outside restrictive housing.

Individuals placed in restrictive housing shall have comparable interaction with other individuals and comparable amenities to those housed outside restrictive housing and shall have access to at least ten hours outside their cells.

We believe Int. 2173 represents a good first step towards ending the harm of solitary confinement in New York City. That being said, we have reviewed the amendments to the bill proposed by the Jails Action Coalition and urge this Committee and the sponsor to consider adopting all or most of the amendments. The need for robust protections against solitary confinement in city jails has never been more urgent.

COVID ISOLATION GIVES PERSPECTIVE ON SOLITARY CONFINEMENT

The COVID-19 pandemic and its concomitant severe restrictions on social activity have demonstrated to the world the deleterious effects that isolation and a lack of human interaction can have on people’s mental health.

In August 2020, the Centers for Disease Control and Prevention (CDC) released a report assessing mental health and suicidal ideation among individuals in the U.S. during the isolation caused by our current pandemic. The study was conducted in June 2020 and consisted of approximately 5,500 eligible participants. Of those participants, 40.9% reported an adverse mental or behavioral health condition. Of those who had a condition, 30.9% reported symptoms of anxiety or depressive disorders, 26.3% reported trauma-and stressor-related disorder (TSRD) symptoms related to COVID-19, and 10.7% reported considering suicide within the past 30 days. Participants who reported that they were already receiving treatment for anxiety, depression, or TSRD, reported a worsening of symptoms.[1]

The mental health effects of COVID have been felt globally. In a study done through an online questionnaire for the US, Canada, UK and other countries, it was found that 50.9% of participants showed traits of anxiety, 57.4% showed signs of stress, and 58.6% exhibited depression.[2] These and other studies establish that interpersonal activity is a basic human need and that a pronounced  reduction in same can create psychic harm.  They also give us valuable insight into the question of whether it is morally just for a society to purposely impose great harm on the mental health of one of its citizens by creating an extreme deprivation of this need.

 

WHY WE MUST END SOLITARY

Right now, too many New Yorkers are suffering in solitary confinement in jails across New York City.  Incredibly, 5.5 percent of people in jail or prison in our state are in isolated confinement, a rate even higher than the national average of 4.4 percent. In New York City, the numbers are even more staggering. According to the New York Times, 13 percent of the more than 7000 people incarcerated in city jails in the first half of 2020 were held in solitary confinement.[3] And the clear majority of them are people of color. For example, Black people comprise about sixteen percent of all New Yorkers, but they make up fifty percent of incarcerated people and sixty percent of people held in long-term solitary confinement units. These racial disparities are constitutionally problematic, to say the least, and only serve to further delegitimize an already shameful practice.

It is shameful because solitary confinement causes extreme psychological harm and trauma. Twenty-two percent of people in jails suffering with symptoms of serious psychological distress had spent time in solitary in the preceding twelve months.^[4] Depriving incarcerated people of adequate human contact and sensory stimulation results in adverse consequences that continue post-isolation and make adjusting to the general jail population, and ultimately to mainstream society, even more challenging than it already is.^[5] Studies also show that solitary confinement creates powerfully deleterious effects with regards to mood symptoms, PTSD-related outcomes, psychotic experiences, hostility, self-injurious behavior, and mortality.[6]For example, people put in solitary confinement are more likely to harm themselves or to commit suicide than other incarcerated people. According to one study, people assigned to solitary confinement were 3.2 times more likely to commit an act of self-harm during their incarceration compared to those never assigned to solitary.^[7] Incarcerated people who have been in solitary confinement also experience oversensitivity to stimuli, disturbed sleep, slowing of mental processing, chronic headaches, and increased heartbeat, all of which makes them more irritable and likely to overreact.^[8]

Nor can it be persuasively argued that issues of safety somehow justify such cruel effects.  Because evidence strongly suggests that solitary confinement is not an effective deterrent to antisocial behavior and may actually make those subjected to it more likely to later disobey the law or behave violently towards themselves and others.^[9] So solitary confinement paradoxically makes everyone involved less safe.

Conversely, states that have taken steps to limit isolated confinement have found that doing so makes jails safer. In 2007, Mississippi instituted more objective criteria for admission to solitary and release from solitary, a mandated 90-day review of incarcerated people in solitary, and a written plan outlining how each person in solitary could secure release.^[10] These reforms resulted in a decline in the number of prisoners in solitary confinement and a nearly 70 percent concurrent decline in the number of serious and violent incidents.^[11] Colorado, following the appointment of Rick Raemisch as the Colorado prisons director in 2013, ended the practice of long-term solitary confinement that exceeded fifteen consecutive days and replaced solitary confinement units with de-escalation rooms for people with mental illness.^[12] Raemisch instituted these reforms after spending a day in solitary confinement and the reforms increased safety.

Solitary confinement also makes our communities less safe. We all share a powerful societal interest in penal rehabilitation. We want people returning home from incarceration to thrive and succeed in their communities. We very much do not want them trying to reintegrate after having been traumatized and irreparably damaged by intentional torture. Each year, hundreds of New Yorkers are released directly from extreme isolation into our community.  Very few receive any educational, rehabilitative programming, or transitional services to help them prepare for their return to society.  The result is an artificially higher, if understandable, degree of recidivism for these former inmates.

Individuals who have been subjected to solitary confinement face special challenges that society is poorly equipped to address. According to Craig Haney in The Science of Solitary: Expanding the Harmfulness Narrative, they encounter many serious obstacles to successful reintegration. There are few programs available that acknowledge their solitary-confinement-related traumas and assist them in overcoming the psychological aftereffects. Solitary confinement survivors are more likely to manifest symptoms of PTSD. Like the misguided punishment they were exposed to, the challenges they face are extreme.  The results are unsurprising.  Formerly incarcerated persons who spent time in solitary confinement are significantly more likely than other former prisoners to die during their first year of community reentry, especially from suicide, homicide, and opioid abuse.[13]

As public defenders, we advocate strongly and tirelessly for recognition of the basic human dignity of our clients. Solitary confinement makes a mockery of that concept.  It is inhumane and should be a relic of the past. It creates, perpetuates, and exacerbates mental illness while reinforcing the toxic racial disparities in our criminal justice system. It reduces respect for our court and penal systems and acts as a stain on our collective morality.  It has no place in a civilized society.

 

RECOMMENDATIONS

NYCDS strongly supports passage of the instant legislation with the edits proposed by the Jails Action Coalition and offers the following additional recommendations:

 

1. The legislation creates a right to legal counsel for restrictive housing hearings and provides that said counsel shall be provided adequate time to prepare. We recommend the creation of a pool of attorneys skilled and trained in the rules and operations of the Department of Correction for this purpose.

 

2. In addition to passing this legislation, the Council should push for passage of the HALT Act at the state level. The HALT solitary confinement bill would limit isolated confinement in state facilities to fifteen consecutive days, or a total of twenty days in any sixty-day period. Any person held in solitary for more than fifteen consecutive days would have to be transferred to a Residential Rehabilitation Unit (RRU) where they will receive therapy, support, six hours per day of out-of-cell programming, and one hour per day of out-of-cell recreation. At least every sixty days, a person’s placement in RRU will be reviewed in order to determine if they should be released. The bill is not a perfect solution, but it would represent a significant step forward.

If you have any questions about my testimony, please contact me at sdelapava@nycds.org.

[1] Czeisler MÉ, Lane RI, Petrosky E, et al. Mental health, substance use, and suicidal ideation during the COVID-19 pandemic — United States, June 24–30, 2020. MMWR Morb Mortal Wkly Rep 2020;69:1049–1057. DOI: http://dx.doi.org/10.15585/mmwr.mm6932a1.

[2] Shah, S.M.A., Mohammad, D., Qureshi, M.F.H. et al. Prevalence, Psychological Responses and Associated Correlates of Depression, Anxiety and Stress in a Global Population, During the Coronavirus Disease (COVID-19) Pandemic. Community Ment Health J (2020). https://doi.org/10.1007/s10597-020-00728-y.

[3] Jan Ransom, As NYC Jails Become More Violent, Solitary Confinement Persists, NY Times, Oct. 12, 2020.

^[4] Beck, A.J. (2015). Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12. Bureau of Justice Statistics.

https://www.bjs.gov/content/pub/pdf/urhuspj1112.pdf.

^[5]  Corcoran, M.M. (2015). Effects of Solitary Confinement on the Well Being of Prison Inmates.OPUS, 37-39. https://steinhardt.nyu.edu/appsych/opus/issues/2015/spring/corcoran.

[6] Luigi M, Dellazizzo L, Giguère C-É, Goulet M-H and Dumais A (2020) Shedding Light on “the Hole”: A Systematic Review and Meta-Analysis on Adverse Psychological Effects and Mortality Following Solitary Confinement in Correctional Settings. Front. Psychiatry 11:840. doi: 10.3389/fpsyt.2020.00840

^[7] Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Venters, H. (2014). Solitary Confinement and Risk of Self-Harm Among Jail Inmates. PubMed. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953781/

^[8]  Corcoran, M.M. (2015). Effects of Solitary Confinement on the Well Being of Prison Inmates. OPUS, 37-39. https://steinhardt.nyu.edu/appsych/opus/issues/2015/spring/corcoran

^[9] Cole, K.M. III. (1972). Constitutional Status of Solitary Confinement. Cornell Law Review, 57(3), 476-489.

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3990&context=clr

^[10] Kupers, T.A., et al. (2009). Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs. Criminal Justice and Behavior.

https://www.aclu.org/sites/default/files/field_document/asset_upload_file359_41136.pdf

^[11] Simms, A.A. (2016). Solitary Confinement in America: Time for Change and a Proposed Model of Reform. Penn Law: Legal Scholarship Repository.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1198&context=jlasc

^[12]  Simms, A.A. (2016). Solitary Confinement in America: Time for Change and a Proposed Model of Reform. Penn Law: Legal Scholarship Repository.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1198&context=jlasc

[13] Craig Haney, The Science of Solitary: Expanding the Harmfulness Narrative, 115 NW. U. L. Rev. 211 (2020).