Four years ago, state lawmakers passed a sweeping measure aimed at creating more equity in the courts and prisons. The Criminal Justice Reform Act included new protections for prison inmates held in long term solitary confinement. But now a new lawsuit alleges that the Department of Corrections has failed to abide by many of those reforms. GBH News legal analyst and Northeastern University law professor Daniel Medwed joined Morning Edition host Jeremy Siegel to discuss the case. This transcript has been lightly edited.
Jeremy Siegel: Let's go back in time to start, because I think for a lot of people, hearing about solitary confinement, it sounds like something from far back in time. It sounds like something that's barbaric. What is the history of solitary confinement in the country?
Daniel Medwed: It is barbaric, I think, and it does sound medieval. Solitary confinement emerged in the U.S. in the 18th century based on religious beliefs that held that social isolation, often accompanied with a Bible, could lead you on the path to redemption and repentance. This was a time when the term penitentiary was emerging as a synonym for prison or jail. By the late 19th century, however, it had fallen out of favor, in part because of growing concerns about the emotional, physical and mental toll caused by this form of punishment. That was short-lived because by the 1980s it was back, and it was back with a vengeance. This was due to the war on drugs; the tough-on-crime movement; and a high-profile prison riot in 1983 in Illinois, in which two prison guards were killed and the institution responded by putting all of the inmates on lockdown, alone in their cells, for 23 hours a day. So by 2017, estimates suggested that about 61,000 prisoners a day on average were in solitary confinement. And not just for safety reasons, that they posed a threat to other inmates or to guards, or that they were vulnerable people themselves; many of them were there for disciplinary infractions, for failing to follow prison rules.
Siegel: What about here in Massachusetts? I mentioned the reforms that we passed, which we'll get into in a bit. But how has solitary confinement worked in the past here?
Medwed: In Massachusetts, like in many states, solitary confinement — which I should note, is euphemistically called restrictive housing in our state — would include people who had committed disciplinary infractions. You could get a disciplinary ticket and sent to the DDU, the Department Disciplinary Unit, for isolation based on any number of ticky tack offenses, for instance, "interfering with the orderly running of the institution." So you could imagine somebody talking back to a corrections officer or failing to line up properly for the daily count. That could, in theory, lead to solitary confinement.
The space in which they would live, a single cell about the size of a parking space, they would stay there for 22 to 23 hours a day, often for lengthy or indefinite periods of time, without a robust review process to determine whether they could go back to general population. So by the mid 2010s, there was a movement afoot nationally and locally to modify solitary confinement, to make it more humane. Some reforms were embedded in the 2018 Criminal Justice Reform Act to make solitary confinement purportedly more tolerable. That act passed unanimously in the state Senate. And if I recall, almost unanimously in the House, I think there were about five dissenting voices.
Siegel: What did this act do? What are the key changes created by the legislation when it comes to solitary confinement?
Medwed: To the consternation of some progressives, the CJRA did not eradicate solitary confinement entirely. It's still on the books here in Massachusetts, possibly an implicit recognition that jailers should have some discretion about how to handle really difficult prisoners. But on the other hand, the CJRA was really designed to make the conditions of restrictive housing much more humane. For one thing, there were provisions about providing adequate meals for people in solitary, at least meals equivalent to what general population members would receive; as well as adequate access to the canteen to buy hygiene products and health products; as well as at least limited visitation rights; and access to the telephone.
But in addition, and I think most notably, the CJRA focused on creating a genuine, meaningful review process where a multidisciplinary team would evaluate whether an inmate should remain in solitary confinement. And no matter what, according to this law, no one in Massachusetts should remain in restrictive housing for more than six months just for a disciplinary infraction. If you're going to stay in solitary beyond that period of time, it has to be due to some safety concern.
"No matter what, according to this law, no one in Massachusetts should remain in restrictive housing for more than six months just for a disciplinary infraction."-Daniel Medwed, GBH News legal analyst
Siegel: So solitary confinement isn't completely gone because of this, but they are sweeping reforms. How has the Department of Corrections approached this?
Medwed: And that's the key question in this lawsuit. A team of students and faculty at the Boston College Civil Rights Clinic in conjunction with a group of lawyers from Holland & Knight, a large national law firm, filed what's known as a class action lawsuit representing three lead plaintiffs, each of whom is incarcerated in Massachusetts and subject to conditions of solitary confinement or restrictive housing, who purport to represent the interests of a large class or group of similarly situated prisoners. And this lawsuit maintains that the DOC is not abiding by the humane treatment conditions, use of the canteen and so on. And second, that a lot of inmates are being sent to solitary confinement for very lengthy periods of time just for a disciplinary infraction, and that there isn't a truly fulsome placement review process in place.
Siegel: What's the lawsuit asking for? Monetary damages?
Medwed: Actually, the lawsuit is seeking what's called declarative and injunctive relief. That is a declaration that the Department of Corrections is not adhering to the letter of the law; and an order, an injunction, that would enjoin the Department of Corrections from continuing down this path. Now, I should note that the Department of Corrections has not yet had time to file a response. This lawsuit is in its infancy. And of course, we should withhold judgment on the merits until we see the full picture. But that said, these allegations are deeply troubling. The 2018 CJRA was passed with huge fanfare, as I said, nearly unanimous support in the Massachusetts legislature. And it's really concerning if, in fact, some of its ideals are not being realized on the ground.