Principal Deputy Assistant Attorney General Vanita Gupta Delivers Remarks at the Vera Institute of Justice's Convening "Safe Alternatives to Solitary Confinement: A Human Dignity Approach"

Remarks as prepared for delivery

Good morning.  I’m Vanita Gupta, head of the Civil Rights Division at the Department of Justice.  It’s a pleasure to speak with you at this important convening.  I want to thank the Vera Institute, its President Nick Turner, Fred Patrick [Director, Vera’s Center on Sentencing and Corrections] and the Vera staff for all the careful research and innovative projects Vera has done on solitary confinement.  And for bringing us all together today.

This is an incredibly important moment – and a real opportunity – for us as a society to reexamine how we incarcerate in this country.  As someone who has spent her whole adult life on criminal justice reform and who has represented men who were subject to prolonged isolation, I can say that 10, even 5 years ago, too few were concerned about what was happening in our criminal justice system or questioning the way we as a society were using solitary confinement or restrictive housing.  And so I am honored to be here among all of you - federal partners, corrections leaders, experts and advocates - as we take part in an event which reflects the tectonic shift on these issues right now.

All three branches of the federal government have been talking about the practice: its overuse around the country, its dangers for vulnerable populations, its high price tag and how we might do things differently while still ensuring safety and order in our prisons and jails.

Congress has held two hearings on the issue over the past three years [2012, 2014].  In the first-ever hearing on the topic in 2012, senators heard compelling testimony from a man who was wrongfully convicted and spent 16 of his 18 years in prison in solitary before being released by the courts.  He talked about how psychologically damaging his isolation had been and its impact on his family.

This year, Supreme Court Justice Anthony Kennedy shined a spotlight on solitary confinement, telling a House Appropriations subcommittee in March that “solitary confinement literally drives men mad.”  In his view, he said, the “idea of total incarceration just isn’t working.  And it’s not humane.” 

In a written court opinion in June, Justice Kennedy expressed deep reservations about prolonged isolation in a cell he described as “no larger than a typical parking spot for 23 hours a day.”  He saw a growing public awareness of solitary confinement, but observed that scientific research and the Supreme Court had long made clear its dangers.  He cautioned, “years on end of near-total isolation exact a terrible price.”

And President Obama himself has put this issue in the spotlight.  At a speech in July, he asked, “do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day for months, sometimes for years at a time?”  And he pointed out solitary’s potential harm to reentry and public safety, saying it “is not going to make us safer…  If those individuals are ultimately released, how are they ever going to adapt?  It’s not smart.”

State officials, too, have been engaged in the hard work of pursuing alternatives.  In fact, some of the most thoughtful, visionary leaders on reforming solitary confinement practices are state corrections officials, people who know day in and day out the challenges of corrections.  And we’re lucky to have several of them with us today.

It’s not just government officials who are driving this conversation.  The media has done incredible work lifting up this issue and making us confront its complexity.  The New Yorker’s reporting on the tragic story of Kalief Browder, who spent two of his three years of pretrial incarceration in solitary confinement in Rikers for stealing a backpack, which he insisted he didn’t do, and who committed suicide a year and a half after being released.  NPR’s sustained examination of restrictive housing practices.  The Marshall Project’s coverage of states’ attempts to scale back their use of isolation.  Reporters are helping us to see where reform is most needed.

And most importantly, the public is engaged.  As part of the broader conversation that is taking place right now about the fairness of our criminal justice system, people are talking about conditions in our prisons and jails, and whether we can do better when it comes to solitary confinement.

At the Civil Rights Division, we have worked for over 20 years to stop excessive solitary confinement in state and local prisons, jails and juvenile facilities.

We have enforcement authority primarily under the Civil Rights of Institutionalized Persons Act (CRIPA).  Under this statute, we have investigated and sued correctional facilities around the country for the overuse of solitary confinement.

This work has gone back as far as 1993, when the division obtained remedies to correct the “overly restrictive” and “anti-therapeutic” 23 hour-per-day lockdown of adult prisoners with mental illness at the Montana State Prison.

More recently, we have focused on the special harm caused by solitary confinement to vulnerable populations, such as prisoners with serious mental illness and juvenile detainees.  And we have invoked other statutory authorities, beyond CRIPA.

SCI Cresson – for example, in 2013 we found that a Pennsylvania state prison, SCI Cresson, used long-term and extreme forms of solitary confinement on prisoners with serious mental illness and/or intellectual disabilities, in violation of both the Eighth Amendment and Title II of the ADA.

Pennsylvania Statewide – based on our disturbing findings in that case, we expanded our investigation statewide.  In 2014, we found that throughout the state, prisoners with serious mental illness were subjected to prolonged solitary confinement under harsh conditions, causing serious harm.  Our experts found that these conditions led to severe mental deterioration, psychosis and acts of self-harm.  Specifically, more than 70 percent of documented suicide attempts over a 17-month period occurred in the system’s solitary confinement units.

Ohio Juveniles – we have also focused our recent efforts on restricting the use of solitary confinement of juveniles.  Our statewide juveniles case in Ohio last year led to a landmark agreement that eliminated disciplinary isolation for youth with mental illness, greatly reduced cool-down isolation and ensured that youth receive individualized mental health treatment.  The goal of the treatment was to prevent and address the violent behaviors that typically landed youth in solitary.

Rikers Island – this summer, we and the U.S. Attorney’s Office in the Southern District of New York reached an agreement to address a variety of deeply entrenched unconstitutional conduct at Rikers Island, including the abusive use of solitary confinement. 

The investigation had found that adolescent inmates, many of whom have mental illnesses, were routinely placed in solitary confinement for weeks and sometimes months at a time.  On any given day in 2013, 15-25 percent of the adolescent population was in punitive segregation, often for non-violent infractions. 

Under the agreement, which has preliminary approval from the court, punitive isolation is prohibited for inmates under 18 years-old.  New York has decided to eliminate the practice for inmates up to 21 years-old, too, by the start of next year, so long as the jail gets the resources for adequate staffing and programming.

Contra Costa Juvenile Hall in California – last year, we filed a statement of interest with the Department of Education in a class action involving the Contra Costa Juvenile Hall in California.  We explained that solitary confinement of juveniles can disrupt the delivery of special education services while in detention, violating their rights under both the Individuals with Disabilities Education Act (IDEA) and the ADA.  Following our filing, the state agreed to stop using solitary for disciplinary reasons and to limit its use as a response to immediate safety threats to a maximum of four hours.

Jefferson County Jail, Birmingham, Alabama – this June, we opened a new case in Birmingham, to investigate whether juveniles, including those with mental illness and special education needs, are being kept in solitary confinement without access to services and programs in violation of their rights.

That’s an overview of the enforcement work we’re doing.  I want to emphasize that our work is only one of several Department of Justice interventions on this issue.  We have conscientious partners in the department – including Karol Mason and her team at the Office of Justice Programs; Charles Samuels and the other dedicated professionals at the Bureau of Prisons; and our partners in Department of Justice’s Civil Division and U.S. Attorney’s offices.  We are all very engaged in the kinds of questions being discussed here today.

We all work collaboratively, but we are also counting on the advocates and experts in this room to help us find solutions to these challenging questions – including identifying the available and best alternatives to solitary confinement.

And so I thank you for coming.  And I look forward to learning together over the rest of the morning.