Is Solitary Confinement Cruel and Unusual Punishment?

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I received a letter from Tom Silverstein responding to my blog post on solitary confinement read by his wife who then forwarded it to him.  Silverstein has been in solitary confinement for more than 31 years, longer than anyone in the federal prison system.  He is incarcerated at the ADX supermax prison in Florence, Colorado.  He believes he is being subjected to cruel and unusual punishment and that no one should be banished to indeterminate isolation.  As the convicted murderer of three people, including a prison guard, there are many who have no sympathy for his plight.  Sentenced to three consecutive life terms plus 45 years, Tom Silverstein is the poster boy for those who insist solitary confinement is a necessary evil.


Opponents of indiscriminate and prolonged use of solitary confinement do not all agree that it should be abolished entirely.  There are those who believe that solitary confinement should never be used because the practice is inherently cruel and unusual punishment.  Some who oppose the practice—and I count myself in this group—will tolerate its occasional use under certain circumstance but only to segregate inmates temporarily until more suitable and humane alternative conditions are found.  No one should be kept in solitary confinement for more than a couple of days.  It does not take long for the psychological damage to begin.  And certainly those who are mentally-ill, disabled, pregnant, or under 21 years old should never be subjected to solitary confinement.

In his letter, Silverstein addressed the question of whether social workers or other mental health professionals are providing cover for a penal system that has embraced the liberal use of solitary confinement by creating the perception that there are ways to ameliorate the ill effects of total isolation—by having people monitor the system to ensure inmates are not severely injured.  Silverstein lambasts his psychologist for being naïve or condescending in her belief that self-help books would somehow bring comfort and relief to his psychic trauma.  His writing is often rambling and sometimes borders on being incoherent but what would you expect from someone trying desperately to hold onto his mental faculties.  Expressions like being “buried alive in a cement coffin,” and “I am unable to leave my physical emotional (sic) pain even when I cannot bear it for another second,” are chilling reminders of how torturous is his experience.

Should Tom Silverstein remain in solitary confinement?  Absolutely not.  Some disagree including the U.S. Tenth Circuit Court of Appeals which denied his appeal in May, 2014 stating that his conditions of confinement were not unreasonable enough to violate the Eighth Amendment outlawing cruel and unusual punishment—specifically stating the nature of his crimes, his membership in the Aryan Brotherhood, and “grounds for keeping him in administrative segregation for both his safety and the safety of others.”  For his safety?  Really?  Does that mean that solitary confinement might be considered cruel and unusual punishment for someone who may have committed one murder and is not a member of the Aryan nation?  As much as we view their ideas and actions as detestable, humans are humans.

If solitary confinement is not cruel and unusual punishment, then what is?  The Georgia Supreme Court explained the Eighth Amendment prohibited castration, burning at the stake, or quartering.  The Supreme Court ruled that crucifixion, breaking at the wheel, and punishments that involved a lingering of death are cruel and unusual as sterilizing criminals who are “feeble-minded” or “habitual.”  Yet one would think an enlightened society would not countenance prolonged solitary confinement or support the death penalty.  Our society has become one that glorifies gun ownership as a means for safety, is okay with torture if it keeps our enemies at bay, and worships movie characters like “The Sniper.”  The Social Work Task Force against Solitary Confinement led by Moya Atkinson is pressing forward to change policies promoting its use.  The Maryland chapter of the National Association of Social Workers (NASW) is convening a panel on the use of solitary confinement on March 26th during its annual Forensic Social Work Pre-Conference.  I will be on the panel supporting Tom Silverstein’s right to humane incarceration.

The post Is Solitary Confinement Cruel and Unusual Punishment? appeared first on Congressional Research Institute for Social Work and Policy.

Written By Charles E. Lewis Jr., Ph.D

Is Solitary Confinement Cruel and Unusual Punishment? was originally published @ Congressional Research Institute for Social Work and Policy » Charles Lewis and has been syndicated with permission.

Photo by Derek Purdy


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