Unfair

by Adam Benforado

  There are no windows: “The Abuse of Solitary Confinement”; Gawande, “Hellhole.”

  There is a toilet: Gawande, “Hellhole.”

  This is where you sit: Gawande, “Hellhole.”

  You get taken out only to: Gawande, “Hellhole”; Lance Tapley, “The Worst of the Worst: Supermax Torture in America,” Boston Review, November 1, 2010, http://bostonreview.net/​tapley-supermax-torture​-in-america.php.

  In Maine, no radios or televisions: Tapley, “The Worst of the Worst.”

  At California’s Pelican Bay: Devereaux, “Prisoners Challenge Legality of Solitary Confinement Lasting More Than a Decade.”

  It is a bit softer in: Gawande, “Hellhole.”

  Human contact is virtually: Keim, “Solitary Confinement.”

  The doors are often solid: Resnick and Curtis-Resnick, “Abolish the Death Penalty and the Supermax, Too.”

  For many, the opening of: Ridgeway, Casella, and Rodriguez, “Senators Finally Ponder the Question: Is Solitary Confinement Wrong?”

  If you want to feel: Devereaux, “Prisoners Challenge Legality of Solitary Confinement Lasting More Than a Decade”; Tapley, “The Worst of the Worst.”

  Officers with shields and helmets: “Supermax Prison Cell Extraction,” Boston Review, YouTube video, 12:44, uploaded December 16, 2010, http://youtu.be/​3jUfK5i_lQs.

  Your clothes may be cut off: “Supermax Prison Cell Extraction.”

  You may then be strapped: Tapley, “The Worst of the Worst.”

  More than 185 years after: Johnston, Crucible of Good Intentions, 102.

  Philadelphia’s penitentiary had a: Johnston, Crucible of Good Intentions, 61. The “tranquilizing chair” used at the penitentiary in the 1830s shows a striking resemblance to the restraint chair they use in Maine today. Johnston, Crucible of Good Intentions, 61. The instrument of straps, chains, and locks was invented by Dr. Benjamin Rush of the Society for Alleviating the Miseries of Public Prisons, who saw himself as a true humanitarian reformer and friend of the less fortunate—an apt reminder that those with the most benevolent intentions can engender the cruelest of punishment regimes. Johnston, Crucible of Good Intentions, 61.

  Humans need social contact: Julianne Holt-Lunstad, Timothy B. Smith, and J. Bradley Layton, “Social Relationships and Mortality Risk: A Meta-analytic Review,” PLoS Med 7 (2010): 14–15, http://www.plosmedicine.org/​article/info%3Adoi%​2F10.1371%2Fjournal​.pmed.1000316#pmed-1000316-g006.

  Our brains are wired for connection: Matthew D. Lieberman, Social: Why Our Brains Are Wired to Connect (New York: Random House, 2013), 22, 33–35. Although friendship is rare in the animal kingdom, it is rarely absent among humans: we are a naturally and strongly social species. Lieberman, Social, 24; Holt-Lunstad, Smith, and Layton, “Social Relationships and Mortality Risk.” And one theory is that the main reason the modern human neocortex is so large is that it facilitated living in larger, more social groups. Lieberman, Social, 32.

  According to one theory, when: John T. Cacioppo and Louise C. Hawkley, “Perceived Social Isolation and Cognition,” Trends in Cognitive Sciences (2009): 447.

  And evidence collected over: Louise C. Hawkley and John T. Cacioppo, “Loneliness Matters: A Theoretical and Empirical Review of Consequences and Mechanisms,” Annals of Behavioral Medicine 40 (2010): 218; Holt-Lunstad, Smith, and Layton, “Social Relationships and Mortality Risk.”

  Infants die without food: Holt-Lunstad, Smith, and Layton, “Social Relationships and Mortality Risk,” 14–15. Prior to the fall of communism, in countries such as Romania, foster care was rarely used and infants and children were often placed in large institutions where they experienced profound neglect. UNICEF, Children at Risk in Central and Eastern Europe: Perils and Promises (Florence, Italy: United Nationals Children’s Fund, International Child Development Centre, 1997), 12–14. In many cases, existing family ties were completely severed but not replaced by other significant human contact. UNICEF, Children at Risk in Central and Eastern Europe, 12–14.

  More recently, researchers have found: Holt-Lunstad, Smith, and Layton, “Social Relationships and Mortality Risk,” 14.

  Put differently, having adequate social ties: Holt-Lunstad, Smith, and Layton, “Social Relationships and Mortality Risk,” 2.

  It hurts us to be alone: Hawkley and Cacioppo, “Loneliness Matters,” 219. Loneliness is associated with an array of cardiovascular risk factors, as well as numerous emotional and cognitive problems—from personality disorders to Alzheimer’s disease. Hawkley and Cacioppo, “Loneliness Matters,” 220.

  When the U.S. military studied: Gawande, “Hellhole.”

  As a POW, John McCain spent: Gawande, “Hellhole.”

  When he returned, he did not: Gawande, “Hellhole.”

  Solitary confinement appears not only: Daniel P. Mears, “Supermax Prisons: The Policy and the Evidence,” Criminology and Public Policy 12 (2013): 691–92; Tapley, “The Worst of the Worst.”

  A healthy person who has: Keim, “Solitary Confinement”; Gawande, “Hellhole.”

  And many inmates in solitary: Tapley, “The Worst of the Worst”; Gawande, “Hellhole.”

  A number of these psychological problems: Tapley, “The Worst of the Worst.”

  Self-mutilation is a regular occurrence: Ridgeway, Casella, and Rodriguez, “Senators Finally Ponder the Question: Is Solitary Confinement Wrong?”; Gibbons and de B. Katzenbach, Confronting Confinement, 59; Goode, “Senators Start a Review of Solitary Confinement”; “The Abuse of Solitary Confinement.”

  Nineteenth-century Philadelphians were no doubt: Johnston, Crucible of Good Intentions, 61.

  Meanwhile, thousands of our citizens: Amnesty International, Death Sentences and Executions 2013, 10; “Executions by Year Since 1976,” Death Penalty Information Center, accessed May 24, 2014, http://www.​deathpenaltyinfo.org/​executions-year. There were forty-five executions in 2013 in the United States, which means that the chance of being put to death after committing a capital-punishment-eligible murder was less than 2 percent. Justin Wolfers, “Life in Prison, With the Remote Possibility of Death,” New York Times, July 18, 2014, http://www.nytimes.com/​2014/07/19/​upshot/life-in-prison-with-the​-remote-possibility-of-death.html​?emc=eta1&abt​=0002&abg=1. Instead, many prisoners end up locked on death row for decades. Wolfers, “Life in Prison.”

  Few of us stop to consider: Our incarceration system may cause more anguish than any the world has ever known, but it’s hard to recognize that reality. Indeed, I am always interested to witness how vigorously some of my friends and colleagues will argue against the brutality of the death penalty and their ardor in fighting for its elimination while showing little concern with the current alternative of long prison sentences and solitary confinement.

  Yet there have been prominent: Indeed, solitary confinement has been used for centuries as torture—that is, for the precise purpose of causing extreme suffering. Keim, “Solitary Confinement.”

  On March 8, 1842, during his tour: Johnston, Crucible of Good Intentions, 57.

  He subsequently “passed the whole day”: Johnston, Crucible of Good Intentions, 58.

  But despite his initial excitement: Charles Dickens, American Notes (London: Chapman and Hall, 1842), 238–39; Gopnik, “The Caging of America.”

  The prison staff, in fact: Johnston, Crucible of Good Intentions, 58.

  As Dickens wrote: Dickens, American Notes, 238; Johnston, Crucible of Good Intentions, 58.

  Something “cruel and wrong” can be: Dickens, American Notes, 238; Johnston, Crucible of Good Intentions, 58.

  In modern Saudi Arabia: Amnesty International, “Saudi Arabia: Five Beheaded and ‘Crucified’ Amid ‘Disturbing’ Rise in Executions,” May 21, 2013, http://www.amnesty.org/​en/news/​saudi-arabia-five​-beheaded-and-crucified-amid-​disturbing-rise-executions​-2013-05-21.

  In Indonesia, a man can be: Amnesty International, “Indonesian Government Must Repeal Caning Bylaws in Aceh,” May 22, 2011, https://www.amnesty�
��.org/en/news-and-updates​/indonesian-government-must​-repeal-caning-bylaws-aceh-2011-05-20.

  Dickens was correct: Dickens, American Notes, 239; Gopnik, “The Caging of America.” We are also skeptical of harms that do not produce physical evidence because there is always the possibility that they might be feigned. Supporters of solitary confinement attacked Dickens’s account of Eastern State on just such grounds, petitioning the British consul-general to reinterview several of the inmates with whom Dickens spoke for signs of deception. Johnston, Crucible of Good Intentions, 58. The consul-general did not disappoint, noting, in particular, a German prisoner who Dickens described as a “dejected, heart-broken, wretched creature” and “a picture of forlorn affliction and distress of mind,” who turned out to be “an ingenious and clever fellow but a great hypocrite, and evidently saw Mr. D’s weak side.” Johnston, Crucible of Good Intentions, 58.

  It is “a secret punishment”: Gopnik, “The Caging of America.”

  When researchers studied prisoners: Gawande, “Hellhole.”

  Once again, our reluctance to: Robert Folger and S. Douglas Pugh, “The Just World and Winston Churchill: An Approach/Avoidance Conflict About Psychological Distance When Harming Victims,” in The Justice Motive in Everyday Life, eds. Michael Ross and Dale T. Miller (Cambridge, UK: Cambridge University Press, 2002), 169.

  It is much more difficult to administer: In his experimental variations, Stanley Milgram found that when the person administering the shock could not hear or see the victim who was in another room, 65 percent of participants provided the maximum shock. However, when the victim was in the same room, that number dropped to 40 percent. And in the condition where the participant had to hold the victim’s hand on the shock plate, full compliance dropped to 30 percent. The average maximum voltage that participants were willing to inflict upon the victim followed the same trend. Stanley Milgram, Obedience to Authority: An Experimental View (New York: Harper and Row, 1974), 32–36.

  Similarly, we are more hesitant when: Milgram, Obedience to Authority, 121–22.

  We know that it’s easier to: In Milgram’s studies, the shock generator had thirty lever switches with voltage designations ranging from 15 to 450 volts. Milgram, Obedience to Authority, 20.

  Studies show that harm caused by: Jonathan Baron and Ilana Ritov, “Omission Bias, Individual Differences, and Normality,” Organizational Behavior and Human Decision Processes 94 (2003): 74.

  The result is that few of us: No doubt, it also matters that those suffering are members of a despised outgroup—criminals. We will rarely feel motivated to protect those who we are already attuned to devalue.

  The Department of Justice estimates that: David Kaiser and Lovisa Stannow, “Prison Rape and the Government,” New York Review of Books, March 24, 2011, http://www.nybooks.com/​articles/archives​/2011/mar/24/​prison-rape-and-government/​?pagination=false.

  Many of these victims are assaulted: Christopher Glazek, “Raise the Crime Rate,” N+1 Magazine, Winter 2012, https://nplusonemag.com​/issue-13/politics​/raise-the-crime-rate/.

  And the fact is that no one: Tim Hrenchir, “Sebelius’ Son Sells Game Out of Cedar Crest,” Topeka Capital-Journal, January 26, 2008, http://cjonline.com/​stories/012608​/bus_240507951.shtml; John Sebelius Art & Design, “Don’t Drop the Soap,” accessed May 24, 2014, http://www.johnsebelius​.com/​dontdropthesoap.html.

  Think back to Leandro Andrade: Chemerinsky, “Cruel and Unusual,” 1.

  As a heroin addict stealing: David G. Savage, “Supreme Court to Hear Three-Strikes Challenge,” Los Angeles Times, April 2, 2002, http://​articles.latimes.com/​2002/apr/02/news/mn-35804.

  And what does this military veteran: Carl M. Cannon, “Petty Crime, Outrageous Punishment,” Reader’s Digest, October 2005.

  By amending California’s three-strikes law: Chemerinsky, “Cruel and Unusual,” 1.

  There is something unquestionably perverse: There are some promising signs that views may be changing, but only time will tell. In 2012, the Department of Justice issued a final rule setting national standards to address prison rape, pursuant to the Prison Rape Elimination Act of 2003, and explicitly noted that it was wrong to dismiss rape “as an inevitable—or even deserved—consequence of criminality.” National Standards to Prevent, Detect, and Respond to Prison Rape, 28 C.F.R. pt. 115 (2012). According to the DOJ, sexual abuse is not “punishment for a crime. Rather, it is a crime, and it is no more tolerable when its victims have committed crimes of their own.” 28 C.F.R. pt. 115. The success of these national standards is likely to turn on changing how guards, prison administrators, members of the public, and even prisoners view rape. Unfortunately, there has already been some heavy resistance to the new law: in March 2014, Governor Rick Perry of Texas sent a letter to the DOJ stating his plans to ignore the law—which mandates monitoring and adherence to a zero-tolerance policy under threat of decreased federal prison funding—because it was unneeded. Editorial, “Grandstanding on Prisons in Texas,” New York Times, April 4, 2014, http://www.nytimes.com/​2014/04​/05/opinion​/grandstanding-on-prisons-in-texas.html.

  Nor is it only the “worst”: There is little or no acknowledgment, let alone responsive action, to the fact that some people are much more psychologically resilient than others. For one prisoner, solitary might be excruciating, while for another it might not seem significantly different from imprisonment in the general population. The result of failing to assess individual differences in experience is that neither inmate receives what he truly deserves in proportion to the gravity of his crime.

  In some prisons, it is enough to: Tapley, “The Worst of the Worst.”

  It is particularly unsettling to: Tapley, “The Worst of the Worst.”

  The percentage of inmates who meet: Doris J. James and Lauren E. Glaze, U.S. Department of Justice, Mental Health Problems of Prison and Jail Inmates (Washington, DC: Bureau of Justice Statistics, September 2006), 1 http://www.bjs.​gov/​content/pub​/pdf/mhppji.pdf. More than half of those locked up in our jails and prisons suffer from mental illness, while only 11 percent of the adult U.S. population meets the criteria for symptoms of a mental-health disorder. James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 3. Mentally ill women are particularly overrepresented: more than 70 percent of female prisoners have mental-health problems. James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 4.

  More than half of the prisoners: Mears, “Supermax Prisons,” 691–92; Tapley, “The Worst of the Worst.” A study of New York City jails showed that roughly four out of every ten inmates suffered from mental illness and that such inmates spent about twice as long locked up. “Improving Outcomes for People with Mental Illnesses Involved with New York City’s Criminal Court and Correction Systems,” Justice Center: The Council of State Governments, December 2012, http://csgjusticecenter.org/​wp-content/​uploads/2013/05/CTBNYC-Court-Jail_7-cc.pdf.

  Psychologists have documented that: Tapley, “The Worst of the Worst.”

  That, however, is the reality: E. Fuller Torrey et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States (Arlington, VA: Treatment Advocacy Center, 2010), 1, http://www.treatmentadvocacycenter.org/​storage/documents​/final_jails_v_hospitals_study.pdf.

  And only about a third: James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 9.

  When it comes to being model prisoners: Tapley, “The Worst of the Worst.”

  State inmates with mental illness: James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 1, 10. In one survey, while 14 percent of those without mental illness had been charged with an assault on either prison guards or other inmates, 24 percent of those with mental illness had faced such charges. James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 10.

  When that happens, they can be: Tapley, “The Worst of the Worst.” Guards often mistake those with mental problems as deliberately nonco
mpliant. Katherine Harmon, “Brain Injury Rate 7 Times Greater Among U.S. Prisoners,” Scientific American, February 4, 2012, http://www.scientificamerican.com/​article/traumatic-brain​-injury-prison/. For instance, those with traumatic brain injuries commonly have memory and attention problems, as well as heightened anger and impulsivity, which can appear to prison officials as intentional refusal to follow known regulations. Harmon, “Brain Injury Rate 7 Times Greater Among U.S. Prisoners.” 220 More egregious still, when that: Tapley, “The Worst of the Worst.” In general, state inmates with mental illness spend about four more months locked up than those without. James and Glaze, “Mental Health Problems of Prison and Jail Inmates,” 9.

  So, it is not only that severity: John J. Donohue III, “Capital Punishment in Connecticut, 1973–2007: A Comprehensive Evaluation from 4866 Murders to One Execution” (working paper, Stanford Law School, National Bureau of Economic Research, June 8, 2013), http://works.bepress.com/​cgi/viewcontent​.cgi?article=1095&context=john_donohue, 9.

  In 2005, the Supreme Court held that: Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 [2002]); Donohue, “Capital Punishment in Connecticut,” 2.

  But in a recent survey of all: Lincoln Caplan, “The Random Horror of the Death Penalty,” New York Times, January 7, 2012, http://www.nytimes.com/​2012/01​/08/opinion/sunday/the-random-horror​-of-the-death-penalty.html; Donohue, “Capital Punishment in Connecticut,” 1, 3–5.