Several Democratic Senators want to dramatically limit the amount of time Arizona prisoners can spend in solitary confinement, and to require greater accountability from state prisons using the practice.
A bill introduced on Monday by Senator Juan Mendez would limit to 15 days the amount of time Arizona prisons can place people in solitary confinement.
It’s the first proposed regulation on the practice — currently, prisoners can be placed in various forms of solitary confinement, often labeled “detention” or “maximum custody” by correction facilities, without review indefinitely.
“Before I started looking into this, I assumed it [solitary confinement] was an orderly process,” said Mendez. “But it’s not. “
Critics have long decried the detrimental psychological impact of solitary confinement, which separates inmates from the general population.
The senator developed the proposed Senate Bill 1617 over the course of meetings with stakeholders, including family members of people who had spent years in solitary confinement or had directly been confined themselves; the American Civil Liberties Union of Arizona; and Leticia Hua, a lawyer, criminal justice reform advocate and a former Miss Maricopa County.
The bill refers to solitary as “isolated confinement.” As the stakeholders discussed over the course of four meetings, part of the challenge in regulating solitary confinement comes in nailing down exactly what it is, beyond just a simple label.
The Arizona Department of Corrections does not have solitary confinement or segregation, according to Andrew Wilder, spokesperson for ADC. But he said that people inside state prisons can be still be separated from the general population in two ways: through detention units, where inmates are placed after an act of violent behavior or for a major discipline, and through protective custody, which is meant to place at-risk inmates away from everyday prison life for their protection.
Detention units are supposed to be temporary, according to Wilder, and protective custody inmates are intended to retain the same privileges, programming, and work opportunities as general population inmates.
But according to Amy Fettig, deputy director of the National Prison Project at the ACLU, the ADC's definitions are a "hotbed of euphemisms." For instance, protective custody often means “maximum custody," she said.
To the ADC, maximum custody is not solitary confinement. But under the 2015 Parsons v. Ryan settlement agreement in federal court, inmates isolated in maximum custody who are not deemed seriously mentally ill are allotted just seven-and-a-half hours outside their cells weekly, an average of a little more than an hour a day.
The ACLU has been litigating the ongoing Parsons v. Ryan case over Arizona prison conditions, including solitary confinement, for the last five years. Fettig said that these ADC programs meet the de facto definition of solitary confinement while avoiding the unattractive label.
According to Darrell Hill, policy director for the ACLU of Arizona, in addition to “maximum custody,” where many seriously mentally ill inmates are placed, the ADC also uses “restrictive housing,” and “close custody” to describe forms of solitary confinement.
To remedy this, the bill defines “isolated confinement” as any form of confinement in a cell or similarly confined holding space, with another inmate or alone, for 17 hours or more per day.
Modeled after similar legislation in New Jersey, the bill imposes a maximum 15 days in isolated confinement, and would allow inmates to contest the punishment. It would raise the standard for placing someone in such confinement, requiring prison administrators to establish “clear and convincing evidence” of reasonable cause, and to provide proof that a less-restrictive intervention was not available.
People in isolated confinement would receive a clinical evaluation before and after the experience, plus daily medical and mental health evaluations while held within it.
A person deemed to be a “member of a vulnerable population” at any time, including a person with a serious mental illness, developmental disability, pregnancy, or perceived to hold a LGBTQ identity, cannot be placed in isolated confinement as a punishment. Similarly, Arizona prisons cannot place inmates in solitary confinement for “non-disciplinary reasons,” like vulnerability on the basis of pregnancy status, disability, sexual orientation, or gender identity.
Republican Representative Jon Kavanagh said he doubted the bill would ever reach a hearing in the Legislature.
“There should be due process review very quickly after you’re placed into isolation,” he said. “But beyond that, I think it’s unwise for the Legislature to micromanage corrections in an area like this ... I think it’s going to put a lot of prisoners at risk, including the general population who really need to be protected from violent prisoners. I would say the prohibition is too broad."
Advocates like Fettig argue that micromanaging is what's needed. There’s currently no limit to how long a person can spend in these types of confinements, they say. Some inmates spend years in them.
At one of the bill's stakeholder meetings attended by Phoenix New Times, Charlene Schwickrath related how her son Ryan, who's 39 (and in prison on a robbery and aggravated assault conviction, records show), volunteered for isolated confinement and got stuck there for about three years.
While at the state prison in Tucson in December 2016, Ryan Schwickrath asked to be placed in protective custody, fearing violence from other inmates. He asked to leave protective custody shortly thereafter because the restrictions on his movement were so severe, his mother said. But the facility declined to move him back to general population, despite his claims that his mental health was deteriorating. After almost three years in protective custody, he attacked a group of officers and was moved to a detention unit in Eyman, another facility, where he’s remained for the last 10 months, his mother said. The ADC has not yet responded to requests to verify the information.
"With this bill, we're starting the conversation," said Mendez, who has visited many Arizona prison facilities over the last year, but was not permitted to visit any isolated confinement units. "I have to rely on the stories from impacted families and incarcerated people, but what I'm hearing is horrible — reports of people being forgotten about in isolated confinement because of the lack of due process in isolating someone from total contact for a currently undefined set of time.
“This legislation doesn’t seek to abolish isolated confinement,” he went on. “We’re simply seeking some restrictions on its use for the safety and sanity of inmates, and to make sure their time in prison is productive and not further traumatic.”
The ADC said it does not comment on pending legislation. But upon request, spokesperson Bill Lamoreaux again noted that "Protective custody is not segregation. This population of inmates have all the same privileges, programming, and work opportunities as general population inmates." It has not yet responded to inquiries about how many hours per week people in protective custody are permitted outside their cell.
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