For the second time in three months, California prisoners are using their lives as bargaining chips. This July, beginning with the Secure Housing Unit (SHU) at Pelican Bay State Prison in Northern California, as many as 6,600 inmates at thirteen prisons underwent a three-week hunger strike to protest the state’s use of “supermax” facilities designed for long-term solitary confinement. The strike ended on July 20 when inmates received as concessions winter beanies, wall calendars and the promise of “some educational opportunities.” But their larger, more basic demands—more humane living conditions and a feasible exit strategy from solitary besides “parole, snitch or die”—went unmet. As a result, on the morning of September 26, the hunger strike resumed at Pelican Bay. “We have been quietly held in Pelican Bay State Prison solitary confinement under some of the most horrible conditions known to man,” one SHU inmate wrote in a letter. “So we continue to struggle to be treated like decent human beings.”
It’s difficult to forecast whether the renewed strike will achieve more meaningful concessions this time around. Few details are available about the first strike, in large part because media were barred from entering California’s prisons at the time. The horrors of long-term solitary confinement have, however, been well documented. Left alone in windowless concrete cells for twenty-two and a half hours a day, prisoners become psychotic or catatonic and routinely mutilate themselves.
Prison officials make little effort to justify these conditions on a penological basis: in most cases, inmates are placed in supermax not for crimes committed on the outside but for suspected gang activity and other transgressions on the inside. As arbitrary as placement in supermax can be, prisoners have even less say when it comes to getting out. In Pelican Bay’s SHU, they must either prove they’ve maintained no contact with gangs for six years, “debrief” guards on gang activity in the facility—a risky proposition for any prisoner—or make parole, which could take years. Indeed, because of the difficulty of cutting all gang ties and the risk of “snitching,” most prisoners in SHU just wait to be paroled: of the 1,111 prisoners currently in SHU, 513 have lived there a decade or more.
An influential 2009 report by Atul Gawande in The New Yorker subtitled “Is Long-Term Solitary Confinement Torture?” strongly suggested it is, posing the additional question: “If prolonged isolation is…so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?” Unfortunately for the 3,000 Californians and 25,000 others held in supermax facilities in the United States (as of 2006), the answer lies largely in the US Supreme Court’s narrow interpretation of the Constitution’s Eighth Amendment, which prohibits “cruel and unusual” punishment. If the largely invisible actions of California’s prisoners are to have any effect, they must be accompanied by a viable legal strategy to ban supermax conditions once and for all.
One approach would be to bring a lawsuit challenging the conditions of solitary confinement on Eighth Amendment grounds. But the Supreme Court has for the past two decades ruled that “cruel and unusual punishment” means wanton physical abuse—a definition that no court has yet to apply to solitary confinement. The Supreme Court isn’t likely to label prison conditions cruel and unusual unless it can be proved that prison officials showed reckless indifference to specific medical needs of inmates.
In the 1991 Supreme Court case Wilson v. Seiter, which dealt with prison conditions and overcrowding, Justice Antonin Scalia reversed a ten-year precedent with his majority opinion that a prison’s overall conditions, however bad, did not qualify as cruel and unusual if they were not explicitly designed to cause bodily harm. “Nothing so amorphous as ‘overall conditions,’ ” Scalia wrote in his opinion, “can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” As Vanderbilt professor of English and prison expert Colin Dayan notes in her short book, The Story of Cruel and Unusual, Scalia’s opinion “led to the reproduction of conditions that disfigure personhood and incapacitate prisoners—those amorphous abuses that have nothing to do with lighting, food, clothing, shelter, or medical care.” It also reassured states that they ran little risk of facing a successful legal challenge to the supermaxes they were feverishly building in that era.