Colorado Gov. John Hickenlooper signed legislation on Friday ensuring that seriously mentally ill inmates will no longer be kept in solitary confinement, an issue that has come under increasing scrutiny across the country amid arguments that the practice violates constitutional prohibitions against cruel and unusual punishment.
With the governor’s action, Colorado became the second state in the nation to take action against solitary confinement, which was raised as an issue in the 2013 murder of state prisons chief Tom Clements. Evan Ebel spent much of his eight years in prison in solitary confinement before being released and killing Clements, according to authorities.
Denise Maes, public policy director for the American Civil Liberties Union of Colorado, which fought for the new law, said the Clements case was one of the drivers that spurred the state to action.
“There’s definitely a connection,” she said. “After that, there was more political will and sentiment to address the seriously mentally ill.”
Complicating the issue is that solitary confinement can make it harder or even impossible for prisoners to find a place in society once they are released, said Amy Fettig, senior staff counsel for ACLU National Prison Project.
“It’s a risk that can’t be condoned,”she said. “They come out such ruined human beings. It has essentially harmed them in such a substantial way they can’t ever return to the community or society.”
Estimates vary but Fettig believes there are about 80,000 inmates in state and federal prisons in some form of segregated housing. Of those, about 25,000 are in state and federal maximum-security institutions with heightened security and isolation. The number who are mentally ill are thought to be as much as 30% to 50% of all those who are in isolation, but it can vary by prison and state.
The additional problems are how to separate those who are seriously mentally ill from prisoners who are less disabled, and how to treat each group. In general, those with illnesses such as delusions, severe depression, bipolar disorder, organic brain syndrome or who are actively suicidal are considered to have serious mental illnesses. But there is a large gray area open to diagnosis.
Those with lesser illnesses can experience worsened symptoms in isolation, Fettig said. Those inmates also need to be watched and treated.
Fettig said New York was the first state to legislatively move to end isolation for the seriously mentally ill. She said about half a dozen states, including Ohio, Indiana, Wisconsin and South Carolina, have moved to deal with the issue through litigation and legislation. About six additional states are considering action that includes at least studying the issue, she said.
“The reason why the focus is on the seriously mentally ill is because that’s where the civil rights cases are being won on the grounds of cruel and unusual punishment legislation. The next frontier,” she said, “will be the evolving nature of cruel and unusual for any human being in isolation.”
One state in which that battle is being fought is California, where a federal judge in Oakland this month granted inmates at Pelican Bay State Prison class-action status. The inmates, who claim unconstitutional treatment because they are being held in isolation, allege physical and psychological abuse when they are in their cells for 22 hours a day. In some cases, they have been in solitary for years or even decades.
Under the new Colorado law, the state will move the seriously mentally ill from isolation. State officials have said there is just one such person in isolation, as the state has been moving toward other standards in recent years.
Still, there are questions about the conditions of housing the more than 200 people who have already been shifted out of isolation and whether they are getting enough time out of their cells, ACLU officials said. An additional 240 inmates not classified as seriously mentally ill remain in solitary confinement.