Is it justifiable to chain women as they give birth? How about confining people in a way that is proven to be psychologically devastating and torturous? These are just two of the questions raised last week during the conference, Behind Bars: Ethics and Human Rights in U.S. Prisons, a conference sponsored by the Center for Bioethics at Harvard Medical School.
To kick off the two day event, Dr. Danielle Allen delivered a moving keynote in which she urged us to question two key issues: the ethics of the treatment of those behind bars, as well as the ethics of using bars. In addressing this second point, Dr. Allen tasked everyone attending the conference with a ‘homework assignment’: to read Sentencing and Prison Practice in Germany and the Netherlands: Implications for the United States, in order to encourage us to “think the unthinkable,” namely a more humane way to treat people who have committed crimes.
From this report, I learned that in Germany and the Netherlands, incarceration is seen as a last resort for individuals convicted of crimes. Alternative non-custodial sanctioning and diversion systems such as fines and task-penalties exist – and are effective. In 2010, 6% of sanctioning resulted in incarceration in Germany and in 2004, 92% of sentences were for two years or less. These incarceration systems are organized around the principles of resocialization and rehabilitation. Time spent in prison is meant to be as similar as possible to community life, and incarcerated people are encouraged to cultivate relationships within and outside of prison. In prison, individuals can wear their own clothes, structure their own days, work for pay, study, parent their children in mother-child units, vote, and return home occasionally. In these systems, respect for persons, privacy, and autonomy are strongly held values. Solitary confinement is rarely used, and cannot exceed four weeks a year in Germany, and two weeks a year in the Netherlands.
This is a stark contrast to the U.S, which has the highest incarceration rate in the world. In 2010, 70% of those convicted received a prison term sentence, with sentences lasting an average of three years. Over the past 40 years, the prison population in the U.S. has grown by 913%, from 175, 000 people in 1972, to over two million today. This rise has been in part due to the introduction of policies that serve to protect the central tenet of the American correctional system: that incapacitation and retribution can protect public safety. It is estimated that 80 000 – 100 000 incarcerated people are held in some form of solitary confinement in the U.S., in some cases for upwards of 40 years. There is little evidence that these practices minimize crime or decrease recidivism.
These American statistics are dismal, as was much of what I learned of the U.S. incarceration system at this conference. The highlight of the conference for me was hearing the presentations of several individuals, like Mary Baxter, who have had experience within the system; voices that desperately need to be heard in order to appreciate the magnitude of suffering perpetuated by the system. I would like to thank Ms. Baxter for speaking to me and allowing me to share her experience of being pregnant in prison.
In 2004, after being arrested for non-violent offences shortly before her due date, Ms. Baxter went into labor while incarcerated. Two hours later, the guards agreed to take her to a hospital, handcuffed to a bed by her arms and legs. She remained chained to this bed for 43 hours of labor. Ms. Baxter received an emergency C-Section, after which her child was sent home. Upon her return to prison, Ms. Baxter was sent to two weeks in solitary confinement after requesting to be placed to a separate medical unit so she could heal. “After just having my son and surviving that traumatic experience, I’m in another traumatic experience, and you can’t help but be depressed, you’re in like a four by five inch room, no windows, locked in all day on a metal sheath that is not even a bed…just like torture,” Ms. Baxter explained.
Ms. Baxter’s story exposes the unethical treatment of people behind bars. Below, I note two of the egregious human rights injustices raised in this story that were addressed at the conference:
1. The use of shackles for pregnant women:
Shackling is the practice of restraining incarcerated pregnant women during transportation, labor, delivery, and postpartum recovery. Not only is shackling wholly undignifying, it contributes to pain and interferes with medical care, posing serious health risks to mother and baby. We learned from Dr. Maryanne Bombaugh’s talk that although in 2008 the Federal Bureau of Prisons banned shackling, 36 states have yet to embrace anti-shackling policies. Even in states with anti-shackling laws, the law is often disregarded. In Massachusetts, for example, the law passed in 2014 was not being enforced two years later.
Though shackling is now illegal in Pennsylvania where Ms. Baxter was incarcerated, she also said that this law is often unfollowed. Ms. Baxter expressed her support for the Dignity for Incarcerated Women Act, a bill sponsored by Democratic Senators Cory Booker, Elizabeth Warren, Richard Durbin and Kamala Harris. This bill aims to provide women in prison with basic rights such as a ban on shackling, limits on placing pregnant or postpartum women in solitary confinement, free access to tampons and sanitary pads, free phone calls to friends and family, and a mandate that survivors of trauma receive needed treatment. This bill is a step in the right direction, but the legislation would only cover federal prisons, leaving women in state and local facilities subject to regulations that might allow shackling to continue.
2. The use of solitary confinement:
The ongoing use of solitary confinement, the complete isolation from others for 22-24 hours a day within jails and prisons, is stupefying. Dr. Stuart Grassian has evaluated hundreds of individuals in solitary confinement and spoke of the psychopathological effects, describing it as “psychologically toxic.” As Dr. Grassian stated, the harmful effects of solitary confinement are well documented, and have been known by clinicians for hundreds of years. Solitary confinement can exacerbate existing mental illness, or cause a new syndrome to arise, with symptoms such as hypersensitivity to stimuli, perceptual distortions, illusions, hallucinations, panic attacks, trouble with thinking, memory and concentration, obsessional thoughts, paranoia, and problems with impulse control.
Solitary confinement has been condemned internationally. In 2011, The U.N. Special Rapporteur on Torture concluded that solitary confinement for more than 15 days constitutes torture. He called on countries to ban solitary confinement except in exceptional circumstances and for as short a time as possible, as well as to prohibit it completely for juveniles and for people with mental health conditions. Surprisingly, given the present day abuse of solitary confinement in the U.S., the detrimental mental health effects and egregiousness of this punishment were recognized by the Supreme Court dating all the way back to an 1890 case, In re Medley. American courts have since suggested that solitary confinement is unconstitutional as it is in violation of the Eighth Amendment, but have not yet ruled as such.
In his talk on the ongoing issues of juvenile solitary confinement, Dr. Louis J. Kraus explained that although President Obama took action on the matter by banning solitary confinement for juveniles in federal prisons, more legal measures need to be taken across the country to abolish this practice. In 2015, there were only 13 juveniles in federal prisons, leaving inadequate local regulations for many of the hundreds of thousands of children moving through the juvenile justice system, most of whom have mental health issues. Many facilities that continue to engage in solitary confinement for juveniles do so because they are understaffed and deny their use of solitary confinement, instead referring to this practice with terms such as “mental health hold” or “communication management unit.” Dr. Kraus reminded us that locking children away for days without any stimulation in any other circumstance would warrant intervention from child protective services.
Despite the long known and clear psychiatric evidence against the use of this inhumane practice, as well as evidence that solitary confinement does not decrease crime, U.S. jails and prisons continue to isolate individuals, including minors and people with mental illnesses, sometimes for years. This needs to end.
This post is by no means an extensive account of shackling and solitary confinement in the U.S., nor raises the numerous other injustices addressed at the conference. From a screening of the movie 13th and discussions of race, presentations about sexuality, gender identity and sexual abuse in prisons, to conversations about the barriers formerly incarcerated individuals face upon re-entry, the planning committee should be commended for creating a forum to discuss these pressing issues and for leveraging the conference to generate a list of actionable items. We were reminded several times throughout the event of Dostoevsky’s observation that, “The degree of civilization in a society can be judged by entering its prisons.” A glimpse into U.S. prisons at this conference showed me that we must at least do better than shackling and solitary confinement as a society.
If you would like to share a resource or connect to the broader criminal justice reform community, please visit the Center for Bioethics conference resource page.