Miles's blog

The United States Senate cannot seem to pass legislation to address the upcoming expiration of the Bush-era tax cuts.  It allows judicial and other nominations to sit in limbo for months.  Congress has become synonymous with inaction and failure.  But despite their inability to pass legislation to help all Americans and address major problems, the Senate wants to take up the problems of a small number of oppressed Americans—prisoners in solitary confinement.

Solitary confinement, according to civil libertarians and the ACLU, constitutes cruel and unusual punishment in violation of the Eighth Amendment.  The idiocy of this assertion can be seen in this passage from the article describing the Senate hearing.

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo.

Apparently, the common meaning of the word “unusual” is lost on those who worry about the effect of solitary confinement on prisoners.  A “widespread practice” cannot be unusual.  This phrase is important in constitutional analysis because it allows for this area of the law to be flexible and reflective of modern thought.  By definition, the word “unusual” relates to activities which are common and accepted at any point of time.  Otherwise, as we know from cases like Crawford and Blakely, constitutional analysis is frozen in time at the point when the Bill of Rights were adopted.  Without “unusual” pertaining to current practice the question would be whether the founding fathers thought solitary confinement was cruel and unusual punishment.  And heck, they thought putting someone in the stocks and throwing stones at them was ok.)

But like many people, Senators can be bleeding hearts for the poor, oppressed prisoners forced to spend virtually every waking hour locked alone in a cell.  To show how out of touch they are listen to this line of questioning.

But the hearing also included a testy exchange between Mr. Durbin and Charles E. Samuels Jr., director of the Federal Bureau of Prisons, who defended the use of solitary confinement for inmates who pose a threat to the safety of staff members or other inmates.

“Do you believe you could live in a box like that 23 hours a day, a person who goes in normal, and it wouldn’t have any negative impact on you?” Mr. Durbin asked, pointing to a life-size replica of a solitary confinement cell that had been set up in the hearing room.

Durbin is Illinois Senator Dick Durbin.  Apparently he has been swayed in his opinions because his state has been governed by criminals and imprisoned the innocent.  Examination of his question shows his premise is faulty.  Most of the prisoners in solitary confinement are not “normal” in any way.  Is he sympathetic toward the Unabomber, or those who bombed the World Trade Center in 1993? How about Timothy McVeigh?  Which of these prisoners would he describe as “normal?”

This misplaced sympathy for sociopaths apparently has extended to the state level.  Nathan Dunlap, one of two people on death row in Colorado who was convicted of murdering four people, has been moved out of solitary confinement at Colorado’s highest security prison in response to his lawsuit alleging such confinement was unconstitutional.  Dunlap now spends his time awaiting execution (which he has been doing for about 18 years) in the Sterling Correctional Facility which allows him to get more exercise.

Most of those serving in solitary do not have to worry about whether such confinement will hinder their reintegration into society—they will never get out of prison, and thankfully so.  Does the Senate really have nothing better to do than worry about these substrata of human beings who constitute legitimate threats to everyone?

We continue to hear this drumbeat that our penal system, indeed our entire criminal justice system, lags behind the rest of the world—that we imprison too many, for too long, and in too harsh conditions; and that we impose the death penalty when the rest of the civilized world has stopped.  Of course the countries that decry our system don’t allow defendants the presumption of innocence, proof beyond a reasonable doubt, an extensive appeal process, and unlimited discovery.  Many don’t allow jury trials.  Most of the nations are homogeneous societies of people with similar backgrounds which restrict gun ownership and immigration.  Many allow for lengthy detentions without filing charges, and most have social structures where criminal convictions result in significant shame.  Their crime problems are very different than ours, and their solutions cannot necessarily be ours.  (Much of Europe is now facing changes in their social structure and is finding their level of crime, especially violent crime, has increased.  Let’s see how they handle that.)

I understand that extensive time in solitary confinement will certainly result in negative impact on people.  That is part of the deterrent prisons need to control difficult populations.  Like anything, use of this kind of punishment can be abused.  But for the United States Senate to champion the causes of criminals is offensive when one would think they have better things to do.