Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on on Recreation, Libraries, and Youth Affairs Hearing on
Bill 24-946 – “The Eliminating Restrictive and Segregated Enclosures (“ERASE”) Solitary Confinement Act of 2022”
by
Melissa Wasser, Policy Counsel
October 20, 2022
Chairman White and members of the Committee, good afternoon. My name is Melissa Wasser and I am a Policy Counsel at the American Civil Liberties Union of the District of Columbia (ACLU-D.C.). I present the following testimony on behalf of our more than 15,000 members and supporters across the District.
ACLU-D.C. is committed to ending the practice of solitary confinement because it jeopardizes public safety, wastes taxpayer dollars, and is inhumane and traumatic to the individuals who endure it. Ending solitary confinement demands confronting inequities in the criminal justice system and the racial bias driving them.
We are pleased to testify in support of Bill 24-946, the Eliminating Restrictive and Segregated Enclosures (“ERASE”) Solitary Confinement Act of 2022 with some key changes. Our testimony will focus on the bill and our recommendations to strengthen the legislation and end the use of solitary confinement and safe cells in D.C. We will also follow up with the committee on a redline version of the legislation for the committee’s consideration.
Bill 24-946, introduced by Councilmember Mary Cheh in July 2022 and co-introduced by Councilmembers Nadeau, Silverman, McDuffie, Lewis George, and Robert White, would prohibit nearly all forms of segregated confinement for individuals incarcerated at penal institutions owned, operated, and controlled by the Department of Corrections (DOC) and the Department of Youth Rehabilitation Services (DYRS). This legislation also limits the use of safe cells, and, in certain circumstances, requires that people with mental health emergencies be treated at local hospitals and institutions if they cannot receive the care they need in a secure setting. Additionally, the legislation requires DOC and DYRS to create a plan to eliminate segregated confinement and to report to the Council the effects of this legislation.
Background
Solitary confinement is the practice of placing an incarcerated individual alone in a cell for 22–24 hours a day with little human contact or interaction; reduced or no natural light; restriction or denial of reading material, television, radios, and other property; severe limits on visitation; and the inability to participate in group activities.
Almost 50,000 people are held in “restricted housing” every day in this country. People placed in solitary confinement can exhibit a variety of negative psychological reactions, including severe and chronic depression, self-mutilation, decreased brain function, hallucinations, and revenge fantasies. People of color are disproportionately subjected to solitary confinement, even beyond their disproportionate representation in the general prison population. Confinement is also costly and counterproductive, increasing recidivism while failing to reduce prison/jail violence.
In the years leading up to the COVID-19 pandemic, the Federal Bureau of Prisons noted that D.C. used solitary confinement three times more often than the national average, a figure confirmed by Department of Corrections Director Thomas Faust at his last oversight hearing before the Council in March 2022.
During the height of the pandemic, DOC held one of the longest and most isolating lockdowns in the United States, holding 1,500 people in prolonged isolation for over 500 days. This lockdown did not stop the spread of COVID-19: Washington, D.C. had the highest community spread of COVID-19 directly caused by mass incarceration (526.9 additional cases per 100,000).
Officials in some states that formerly relied heavily on solitary confinement are now realizing that they should use public resources on proven policies that promote safe communities and fair treatment and are successfully reducing the use of solitary – at the same time saving their states millions and reducing violence in the prisons. In short, long-term isolation costs too much, does nothing to rehabilitate prisoners, and exacerbates mental illness – or even causes it in prisoners who were healthy when they entered solitary.
Recommendations
Bill 24-946 has a laudable goal to end the use of solitary confinement in the District of Columbia and we support that goal. The bill could further be strengthened by ensuring protection for non-punitive medical isolation, adding transparency to monthly reports being shared with the Council, and tightening up the language in the private right of action section. While we will explain our main recommendations during this testimony, a full list of recommendations and changes to the bill can be found in a redline of the legislation that we will share with the committee after this hearing.
Preserving Non-Punitive Medical Isolation
ACLU-D.C. urges the Council to protect the medical exemption for segregated confinement within section 4(b) and 4(c) of the legislation. Non-punitive medical isolation is necessary for incarcerated people who are diagnosed with or are suspected of having an infectious disease to prevent disease from spreading to other people at the facility. Without a medical exemption, DOC could potentially never engage in medical isolation, unless court ordered, and the health and safety of incarcerated people at D.C. facilities would continue to be at risk.
Strengthen Reporting Requirements for Additional Transparency
Reporting requirements could also be strengthened in section 6, which handles planning and reporting on the elimination of segregated confinement. Each Department should report information to the independent oversight agency tasked with oversight of DOC and DYRS, in addition to the Mayor and the Council. We would also urge section 6(c) be amended to read: “Within one year of the effective date of this act, each Department shall make publicly available on its website monthly reports of the conditions of the penal institution.” This transparency is necessary for the community to understand the steps being taken to eliminate solitary confinement and hold DOC and DYRS accountable for their actions. There should also be an accountability measure added to this section to ensure that DOC can rectify any shortcomings from failing to implement the legislation in real time.
Creating a Private Right of Action
Section 7 creates a private right of action for an incarcerated person to bring if DOC violates this legislation. As currently written, the section is imprecise, does not address the Prison Litigation Reform Act, and could be read by a court to limit injunctive relief. To strengthen this section, ACLU-D.C. recommends revising the law to include robust provisions to enable incarcerated people that end up in solitary confinement to enforce their rights and to encourage counsel to represent them by including attorney’s fees in the private right of action. Our redline highlights recommended language on how to address the Prison Litigation Reform Act, making it inapplicable where possible and seeking to ensure that where it does apply it does not shut out of court people whose whole claim is that they face improper isolation and who, as a result, may be cut off from normal grievance processes. We stand ready to assist the Council in the revision process alongside our Unlock the Box partners.
Fix Drafting Error for More Applicability
In terms of scope of the legislation, the current reading of section 3 is that the act “shall apply to all incarcerated persons detained or incarcerated at the Central Detention Facility, the Correctional Treatment Facility, the Youth Services Center, the New Beginnings Youth Development Center, the Central Cell Block, and any other penal institution owned, operated, and controlled by the Department of Corrections and the Department of Youth Services” (emphasis added). This use of the word and reads as if an incarcerated person would need to be detained or incarcerated at all of these facilities in order to not be placed in solitary confinement. Changing the use of and to or in these two places would give maximum protection to people who are incarcerated, regardless of where they are incarcerated.
Conclusion
Solitary confinement is an outdated, painful, and inhumane way to treat incarcerated people. The District can be a leader in ending solitary confinement through the passage of this legislation. Even with all these safeguards in place, there must be additional accountability measures in place to ensure that the Department of Corrections is implementing and following the law.
In addition to passing this legislation, we urge the Council to create a new independent oversight entity that would address DOC conditions and finally hold DOC accountable for its punitive isolation measures and unconstitutional conditions. The new entity must be empowered to conduct inspections without advance notice, have unfettered access to facilities, residents, and staff, and be required to issue frequent public reports on their findings. As we testified in the past, the Corrections Information Council is not equipped to fulfill this role.
ACLU-D.C. recommends that this committee and the Committee on the Judiciary mark up the bill and the Council passes this bill before the end of the council period. ACLU-D.C. is ready to work with you and alongside our partners in the Unlock the Box coalition as you consider this bill. We appreciate the Council’s leadership on this issue and hope you will incorporate our recommendations to strengthen this legislation and end solitary confinement in the District.