The Agony of The Supermax Confinement:
Indefinite Isolation in The Name of Security.
Malak Taleb
Human Rights
Bachelor level thesis, 12 credits Spring Semester 2019
Supervisor: Dimosthenis Chatzoglakis Word Count: 13129
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ABSTRACT:
The main area of inquiry for this thesis is super-maximum security prisons or as commonly referred to “supermax prisons”. First, the thesis traces the shift from the use of physical punishment to the use of disciplinary measures in punitive institutions and the development of the modern prison until it reaches its latest form as embodied in the supermax model. Secondly, the design, characteristics, and conditions of these prisons are also explored to demonstrate how they systematically contribute to the dehumanization and depersonalization of prisoners. These institutions are subsequently found to represent physical spaces of the lawless “state of exception” that reduces inmates to a “bare” animal-like form of living through depriving them of all the rights and prerogatives granted to them by law. Third, the thesis analyzes the penological rationale commonly invoked to justify supermax prisons and concludes that it suffers from a clear deficiency in demonstrating any evidence-based credibility. Finally, the thesis sheds light on the devastating and long-lasting impacts of supermax confinement on mental health and argues that it may be in violation of fundamental human rights such as the right against torture and other cruel, inhumane, and degrading treatment or punishment as provided by international law.
Key words: supermax prisons, solitary confinement, human rights, torture, Foucault, Agamben,
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TABLE OF CONTENTS:
Abstract: ... 2 Table of contents: ... 3 1 Introduction: ... 5 1.1 Aim: ... 6 1.2 Research questions: ... 71.3 Relevance to Human Rights: ... 7
1.3.1 Global remarks: ... 8
1.3.2 Regional remarks: ... 9
1.3.3 The Istanbul Protocol: ... 10
1.4 Delimitations: ... 11
1.5 Chapter outline: ... 12
The theoretical frameworks: ... 13
2.1 Foucault’s theory on the shift to disciplinary societies: ... 13
2.2 Goffman’s theorization of the “Total Institution”: ... 14
2.3 Agamben’s theories on the “bare life” and “state of exception”: ... 14
3 Methodology: ... 16
3.1 Argumentation analysis: ... 16
3.2 Basic content analysis: ... 17
4 Background: ... 18
4.1 A brief history of solitary confinement as a penal strategy: ... 18
4.2 The birth of the supermax doctrine: ... 20
5 Analysis: ... 22
5.1 The design, characteristics, and conditions of the supermax model: ... 22
5.2 The common penological justifications of supermax prisons: ... 26
5.2.1 Increasing systemwide order, security, and control in prison populations: ... 26
5.2.2 Improving systemwide inmate behavior: ... 33
5.2.3 Reducing recidivism:... 35
5.3 The unconstitutionality of the supermax model: ... 38
5.4 The mental health impacts of the supermax confinement: ... 41
6 Concluding remarks: ... 45
4 6.2 Societal costs: ... 45 6.3 Human costs: ... 46 References list: ... 47
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1 INTRODUCTION:
“I found solitary confinement the most forbidding aspect of prison life. There is no end and no beginning; there is only one’s mind, which can begin to play tricks. Was that a dream or did it
really happen? One begins to question everything.”1
The penal system has undergone a significant shift during the late eighteenth century when the concept of punishment was no longer confined to using torture to cause physical harm and pain to the offender. Instead, the concept of punishment started to focus more on removing the offender from society, depriving him of his liberties, and stripping him of all his rights through imprisonment. However, this does not imply that the penal system became more humane and is now imposing less pain or damage on prisoners. Just as Michel Foucault describes it, this change signals not “a quantitative phenomenon: less cruelty, less pain, more kindness, more respect, more ‘humanity,’” but “a displacement in the very object of the punitive operation” from the body to the soul2.
Supermax prisons as a relatively new punitive form in the penal landscape represents an extraordinary and extreme evolution of this shift from focusing on the offender’s body to focusing on his mind and soul as described by Foucault. In which these institutions are designed, not only to incarcerate the offender away from the outside world, but even to incarcerate him away from the general prison population as well. They are primarily found to hold inmates in a world of complete solitude and isolation from the outside world with a bare minimum to no human contact for indefinite periods of time3. Thus, exposing them to extreme restricted sensory stimulation and
social isolation.
Therefore, although supermax prisons do not expose inmates to any physical torture, its use of absolute solitary confinement that extends for indefinite periods of time and the psychological
1 Nelson Mandela, The Long Walk to Freedom, Macdonald Purnell, 1995. 2 Foucault, M, Discipline and punish: the birth of the prison. Penguin, 1977, p. 16
3 Mears, D. P., & Reisig, M. D., The theory and practice of supermax prisons, Punishment & Society, 8(1), 33–57,
6 pains and mental health implications associated with it is no less damaging than the use of physical torture as it will be illustrated throughout the thesis.
In what follows, the aim and the research questions of the thesis will be provided. The relevance of the thesis to the study of human rights will also be elaborated and the delimitations and chapter outline will be explained.
1.1 Aim:
The primary aim of the thesis is to argue that supermax prisons constitute a deficient policy. This will be demonstrated through the conducting of an analysis of the most common penological justifications for investing in supermax prisons. These are: increasing systemwide order, security, and control in prisons; improving systemwide inmate behavior; and reducing recidivism upon release from prison to decrease crime rates and increase security in societies4. The purpose of this
analysis is to demonstrate that supermax prisons, despite their increasing proliferation, are deficient in showing any evidence- based credibility of their need as a part of the correctional system. In fact, as will be elucidated throughout the research, supermax prisons are likely to cause converse effects on inmates’ behavior and recidivism rates upon release and provide little evidence of their effectiveness in increasing systemwide order, security, and control in general prison populations. Not only does supermax prisons show little evidence of their effectiveness in achieving their purported goals, their extreme and prolonged use of solitary confinement also contribute to inflicting serious and long-lasting damage to the mental, psychological, and cognitive health of inmates5. Therefore, the thesis will also attempt to illustrate how these impacts may
effectively amount to the form of torture, or other cruel, inhumane, or degrading treatment or punishment prohibited under international law.
In addition to scrutinizing the efficiency of supermax prisons, the thesis also seeks to explain the supermax phenomenon through incorporating Michel Foucault’s theory on the shift from sovereign to disciplinary power as well as Erving Goffman’s theorization on the “Total
4 Ibid.
5 Shalev, S, A Sourcebook on Solitary Confinement, London: Mannheim Centre for Criminology, London School
7 Institutions”. Giorgio Agamben’s theory on the “bare life” and “state of exception” will be also employed to understand how supermax prisons contribute to systematically dehumanizing inmates through depriving them of all the components that distinguish them from the animalistic form of living, such as, their rights, entitlements, and prerogatives as provided to them by the law. Thus, reducing them to their “bare lives”.
In summary, the thesis intends to challenge the credibility of the penological rationale commonly invoked to justify the supermax policy. It attempts to understand the supermax phenomenon through employing the theories of Foucault on the shift from sovereign power to disciplinary power, Goffman on the characteristics of total institutions, and Agamben’s theory on the production of “bare life” through invoking a “state of exception”. Ultimately, the thesis seeks to spark further debate about the constitutionality of supermax prisons through analyzing its extraordinary conditions and practices and highlighting the impacts of these conditions and practices on inmates’ health and well-being. It also attempts to highlight the need for initiating a discussion that calls for policy makers and correction officials to consider the establishment of alternative policies that could be more effective in achieving the same goals, yet with more focus on principles of reintegration and rehabilitation rather than total exclusion and isolation.
1.2 Research questions:
Based on the thesis’ intent expressed above, the research questions will read as follows:
- To what extent do the common penological justifications for investing in supermax prisons demonstrate evidence-based credibility?
- Dose supermax confinement contravene fundamental human rights such as, the right against torture or other cruel, inhuman, or degrading treatment or punishment as provided by international law?
1.3 Relevance to Human Rights:
Several human rights instruments reaffirm the prohibition of the use of torture, cruel, inhuman, or degrading treatment, and emphasizes the right of prisoners to be treated in a manner respectful of their human dignity. This includes the UN convention against Torture and other Cruel, Inhuman
8 or Degrading Treatment or Punishment (CAT)6 and the UN convention on Civil and Political
Rights (ICCPR), particularly Article 7 which provides for the prohibition of torture, cruel, or inhuman treatment and Article 10 which provides for the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person7.
Additional instruments set acceptable minimum standards for prison design, provisions and conditions, such as the UN Standard Minimum Rules for the Treatment of Prisoners (SMR). The SMR lists a very specific set of guidelines for the treatment of offenders, ranging from basic food, shelter, and exercise requirements to guidelines on prisoner classification and the provision of educational and vocational training8. Rule 31 addresses solitary confinement directly in
prohibiting placement in a dark cell and all cruel, inhuman or degrading punishments for disciplinary offences9.
1.3.1 Global remarks:
On a global level, with regard to the use of solitary confinement, the UN Human Rights Committee has stipulated that the use of prolonged solitary confinement may amount to a breach of Article 7 of the ICCPR10. The UN Committee against Torture has made similar statements, with particular
reference to the use of solitary confinement during pre-trial detention11. The Committee has also
expressed grave concerns regarding the strict and prolonged solitary confinement in supermax prisons in the US12. The UN committee on the Rights of the Child has furthermore recommended
that the duration of solitary confinement should be limited as far as possible and its use shall be
6 United Nations General Assembly resolution 39/46, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 10 December 1984.
7 United Nations General Assembly resolution 2200A (XXI), International Covenant on Civil and Political Rights,
16 December 1966.
8 The First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Standard
Minimum Rules for the Treatment of Prisoners, Geneva, 1955.
9 Ibid, p. 5.
10 Human Rights Committee General Comment No. 20, Article 7: Prohibition of Torture or other Cruel, Inhumane,
or Degrading Treatment or Punishment, 1992, p. 1.
11 United Nations Committee against Torture, Concluding observations on the third to fifth periodic reports of
United States of America CAT/C/SR. 1276 and 1277, 2014, p. 7.
9 prohibited for persons under the age of 1813. Principle 7 of the UN Basic Principles for the
Treatment of Prisoners states that all efforts addressed to the abolition of solitary confinement as a form of punishment, or to the restriction of its use, should be undertaken and encouraged14.
1.3.2 Regional remarks:
On a regional level, the European Court has recognized that the use of solitary confinement can amount to a violation of Article 3 of the European Convention on Human Rights (ECHR) which provides for the prohibition of cruel, inhuman, and degrading treatment, depending on the specific circumstances of the case, and the conditions and duration of detention. The court recognized that “…complete sensory isolation coupled with total isolation, can destroy the personality and constitutes a form of inhumane treatment which cannot be justified by the requirements of security or any other reason”15. Additionally, the European Committee for the Prevention of Torture (CPT)
has stated that the use of solitary confinement, given it potentially very damaging effects, should be used as a disciplinary punishment only in exceptional cases and as a last resort, and for the shortest possible period of time. The CPT considers that the maximum period should be no higher than 14 days for a given offence, and preferably lower16. The Inter-American Court of Human
Rights has also stated that prolonged solitary confinement constitutes a form of cruel, inhuman or degrading treatment prohibited under Article 5 of the American Convention on Human Rights which emphasizes the right to humane treatment17.
Thus, the potentially harmful effects of solitary confinement are recognized by human rights bodies and its use is viewed as a harsh and undesirable prison practice which must only, if necessary, be used for the shortest time possible, and which, in certain circumstances, may be in violation of international law.
13 United Nations Committee on the Rights of the Child CRC/C/DNK/CO/4, Consideration of reports submitted
by States parties under article 44 of the Convention, 2011, p. 14-15.
14 United Nations General Assembly resolution 45/111, Basic Principles for the Treatment of Prisoners, 1990. 15 European Court of Human Rights, Grand Chamber Judgment Ramirez Sanchez V. France, 2006, p. 4-5.
16 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
CPT/Inf (2011)28-part2, Solitary confinement of prisoners, 2011, p. 3.
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1.3.3 The Istanbul Protocol:
The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol, is the first official United Nations document to provide international guidelines for documentation of the use of torture and its consequences. Both the physical and psychological effects of torture are comprehensively discussed, analyzed, and fully documented in the Istanbul Protocol18.
Although the Istanbul Protocol is a non-binding document, international law obliges governments to investigate and document incidents of torture and other forms of ill-treatment and to punish those responsible in an effective, comprehensive, prompt, and impartial manner19.
The Istanbul Protocol states categorically that torture, to be qualified as such, need not leave any visible physical evidence. It states that torture without any visible scars or marks is nonetheless torture and therefore can still have severe consequences20.
Thus, the Istanbul Protocol affirms that torture is torture, even if it leaves no physical traces at all. By extension, psychological methods of torture, which are not expected to leave any “physical marks”, also constitute a form of torture.
The Istanbul Protocol contains internationally recognized standards and procedures on how to recognize and document symptoms of torture so the documentation may serve as valid evidence in courts21. As such, the Istanbul Protocol provides useful guidance for medical and legal experts
who want to investigate whether or not a person has been tortured and report the findings to the judiciary or the other investigative bodies. The psychological effects of torture, that is, of all methods combined, both physical and psychological, are described in detail in the Istanbul
18 Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Professional Training Series No 8/ Rev.1, Office of the United Nations High Commissioner for Human Rights, Geneva, 2004.
19 Ibid, p. 4. 20 Ibid, p. 33. 21 Ibid, p. 17-31.
11 Protocol22. Those most frequently encountered are: re-experiencing the trauma (flashbacks,
nightmares, general sense of mistrust – even of family members – bordering on paranoia); avoidance of anything recalling the torture experience (also called emotional numbing); hyper-arousal (irritability, sleep difficulties, hyper-vigilance, constant anxiety, difficulties in concentrating); depressive symptoms, and what is known as depersonalization (acknowledged atypical behavior, feeling detached from one’s body)23.
Supermax prisons impose an intensive and long-term isolation in solitary confinement where inmates are kept in small cells for up to 23 hours a day. Inmates leave their cells only in restraints and under guard for brief showers and solitary one hour exercise24. Accordingly, the supermax
confinement can be argued to constitute the kind of solitary confinement that raises serious human rights concerns as described in the international and regional human rights bodies discussed above and thus is relevant to be highlighted in a human rights related research paper.
1.4 Delimitations:
Solitary confinement is a prison practice that is used for different reasons and under different circumstances. For instance, in the UK, pre-charge and pre-trial detainees may be isolated from others whilst their interrogation or the investigation into their case is ongoing25. Furthermore, in
Scandinavia, suspects of crimes are also sometimes isolated pending investigation. The rationale in such cases is to prevent the detainee from compromising the investigation26. Another form of
solitary confinement, favored in a number of European countries, is “small group isolation” wherein prisoners who are classified as dangerous are held in solitary confinement in small high
22 Ibid, p. 45.
23 Ibid, p. 45- 58.
24 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 154.
25 Shalev, S, A Sourcebook on Solitary Confinement, London: Mannheim Centre for Criminology, London School
of Economics, 2008, p. 26.
12 security units, and allowed limited association with one to five others at designated times, typically during the one-hour exercise period required under international law27.
However, the thesis will primarily focus on supermax prisons’ solitary confinement, which is imposed on administrative grounds, as a long-term strategy for managing challenging prisoners for prolonged, frequently indeterminate periods of times with a bare- minimum to no human contact whatsoever. This is due to the thesis’s purpose expressed above to conduct 1) a critical analysis of the penological justifications of supermax prisons as prison regimes that are inherently constructed around the use of prolonged solitary confinement and 2) an investigation of the damaging, often long- lasting, impacts of the use of prolonged solitary confinement in supermax prisons in an attempt to highlight concerns regarding its constitutionality.
1.5 Chapter outline:
The thesis is divided into six main Chapters. In the first Chapter, the introduction to the research topic, research questions, the relevance of the research to the study of human rights, and the thesis’s delimitations are presented and discussed. The second Chapter provides an explanation of the three theoretical frameworks employed in the thesis and their role in approaching its purposes. The methodologies adopted in conducting the thesis are subsequently presented in the third Chapter. Chapter four then provides a general background on the history of solitary confinement as a punishment and the emergence of the supermax doctrine. The analysis is thereafter conducted in Chapter five. Its subsections include an examination of the characteristics of supermax prisons, the most common penological justifications of supermax prisons, the constitutionally inadequate systems of supermax prisons, and a presentation of the devastating effects of the supermax confinement on mental health. Lastly, the thesis concludes with a final Chapter containing three subsections with summaries of its final findings.
27 Ibid, p. 3.
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THE THEORETICAL FRAMEWORKS:
2.1 Foucault’s theory on the shift to disciplinary societies:
In Discipline and Punish: The Birth of the Prison, Foucault traces the history of changing attitudes toward the practices of punishing crime in the late seventeenth century to the mid eighteenth century. He associates this change in punishment with the two different forms of powers that dominated in each one of these time periods. The sovereign power, doled out by the sovereign of a land, such as the king or monarch, that dominated in the seventeenth century and aimed at exercising power publicly through inflicting physical harm on those who committed crimes and disobeyed the sovereign; and disciplinary power that emerged in the mid eighteenth century and exercised power through discipline, surveillance, and control28. When sovereign power prevailed
up until the late seventeenth century, punishment for crimes came in the form of public torture or execution. Beginning in the eighteenth century, when the disciplinary form of power emerged, these public spectacles were replaced by more “delicate” means of punishment, ultimately culminating in private imprisonment, in which the offender is taken away from social view rather than publicly being displayed. Accordingly, the aim of punishment was no longer to inflict pain on the criminal’s body in retribution for his acts, but to target his mind and soul to reform his entire personality. Hence, the major transition Foucault describes is from punishment as a public spectacle to punishment as private detention; and from punishing the body to punishing the soul and mind instead 29.
Foucault’s theorization of the transition in penal institutions towards developing more disciplinary measures will thus constitute the cornerstone to explain the historical development of such measurers until it reached an unprecedent form as embodied in supermax prisons. In which, as it will be illustrated in what follows, it developed an extraordinary design and high- sophisticated technology that enabled the total disciplining of inmates through the constant monitoring and surveillance with a bare-minimum of human interaction.
28 Foucault, M, Discipline and punish: the birth of the prison. Penguin, 1977, p. 3-10. 29 Ibid, 11-15.
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2.2 Goffman’s theorization of the “Total Institution”:
A “total institution” is defined by Goffman in Asylums: Essays on the Social Situation of Mental
Patients and Other Inmates, as a place of residence where a large number of like-situated,
individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed and administered round of life30. Total institutions are separated from wider society by
distance, laws, and/or protections around their property. Generally, they are designed to provide care to a population that is unable to care for themselves, and/or protect society from the potential harm that this population could do to its members31. They are separated from the rest of society by
physical attributes, including high walls, barbed wire fences, large distances, locked doors, and they are closed social systems that require both permissions to enter and leave32. The most typical
examples of such total institution include prisons, military compounds, and locked mental health facilities33.
Once a person has joined a total institution, according to Goffman, they must follow the rules and go through a process of entirely leaving behind their identity to adopt a new one given to them by the institution34.
Goffman’s theorization of the “total institution” and its characteristics will thus serve as the main apparatus for analyzing the institutional dynamics of supermax prisons, its extraordinary design, conditions, and practices as total institutions that systematically depersonalizes inmates and isolate them as deviants in a dichotomy outside of the society.
2.3 Agamben’s theories on the “bare life” and “state of exception”:
In Homo Sacer: Sovereign Power and Bare Life, Agamben introduced the figure of Homo Sacer that represents the status in which the person becomes exposed to unlimited amount of violence
30 Goffman, E, Asylums: essays on the social situation of mental patients and other inmates. Doubleday, 1961, p.
XIII.
31 Ibid, p. 4-5. 32 Ibid, p. 4. 33 Ibid, p. 4-5. 34 Ibid, p. 14.
15 and is no longer protected by the law35. To understand this condition, a distinction between two
important components is to be provided. These two elements are “bios” and “zoe”. In ancient Greece, bios constituted the political and social form of life, where the person can interact with his community, affect, and be affected by it. Zoe on the other hand is the animalistic form of living or “bare life”. Every citizen had these two separate qualities, his political life (bios) as defined by his existence in the social and political sphere of life and his bare life (zoe) which is given by God and is defined by his mere biological existence that requires him to sleep, eat, and drink to ensure his survival36. Thus, at that time, domestic life, as having no political function was regarded as “bare
life” or as “zoe”. Women, children, and the senile would all be “zoe” as they had no political function and thus, no “bios”37.
A Homo Sacer in Roman society is thus someone who in punishment was exiled and expelled from the social and political realm. His “bios” is removed, and he is left with just “zoe” which imply the bare, animalistic form of living.
A Homo Sacer is then placed in an included-excluded dichotomy. It is included because it is still a part of the overall system but excluded because it constitutes a sphere that no longer is within the scope of law. Therefore, anyone who is placed in this included- excluded dichotomy no longer possesses any rights or prerogatives as provided by the law to protect him. The device used by States to reduce people to their “bare life” and expel them is “the state of exception”. The “state of exception” is invoked in the case of a national “emergency” or “crisis” that permits States to suspend judicial law and order and put provisional measures in place38. For instance, Nazi
concentration camps and Auschwitz are physical places which existed in a “state of exception”. They were removed from the law and judicial process and all constitutional rights were diminished and superseded. Guantánamo Bay also represented a physical space of the “state of exception”
35 Agamben, G, Homo Sacer: Sovereign Power and Bare Life, Stanford: Stanford University Press, 1998, p. 27. 36 Ibid, p. 1.
37 Ibid, p. 129-131. 38Ibid, p. 15- 21.
16 were many people were arbitrarily captured in Afghanistan in the aftermath of 9/11 and were taken to be held at Guantánamo Bay without trials in a “state of exception”39.
Drawing on the these theories of the bare life and state of exception by Agamben that the thesis will attempt to explain the practices in supermax prisons as means to reduce inmates to their “bare life” through stripping them of all the entitlements usually guaranteed to them by the law, that is, their “bios” and leaving them with their “zoe”, that is, their mere biological existence. Thus, placing them in a physical space of “exception” invoked by a state of security- related emergency. That is, in the case of supermax prisons, the threat posed by certain inmates on the systemwide security, order, and control of the general prison population.
3 METHODOLOGY:
The questions addressed throughout this thesis are both normative by nature. However, in attempting to answering them, two different research methods were employed.
3.1 Argumentation analysis:
An argumentation is always an attempt either to justify or to refute something40.Thus, since the
first question seeks to determine the validity of the penological argumentations invoked to justify supermax prisons, an argumentation analysis was determined to be the most fitting methodology to be employed. Firstly, the thesis establishes that the three most common penological argumentations addressed in the analysis constitute normative and non-factual ones since they have not been proven empirically as it will be shown in what follows. Secondly, all the assumptions, premises, and reasons associated with these three argumentations were identified to be evaluated. Thirdly, an analysis of both the pro as well as counter-arguments have been conducted to assess the credibility of these penological argumentation and whether they are in line with their tangible outcomes. This has been conducted with the secondary materials used in this thesis, consisting of scientific books, articles, and reports with a substantial focus on supermax prisons; as well as, studies, surveys, and statistical data, all of which were carefully analyzed to
39 Agamben, G., State of exception, University of Chicago Press, 2005, p. 4-5.
17 arrive at a credible assessment of these justifications and to eventually answer the research question.
3.2 Basic content analysis:
The second question seeks to determine, through applying Agamben and Goffman’s theories discussed above, whether the conditions and practices of supermax prisons violate basic human rights through, for example, amounting to torture or other cruel, inhumane, or degrading treatment or punishment prohibited under international law. Thus, basic content analysis was carried out to examine the existing material that studies the very nature of the supermax model for the purpose of elucidating its unconstitutionality. Content Analysis by James W. Drisko and Tina Maschi was used as a guideline for conducting this examination.
Basic content analysis is frequently employed to empirically document a perceived problem to be used as evidence from which to abductively advocate for change41. Therefore, this method was
determined the most suitable for the purpose of highlighting the unconstitutionality of the supermax model as explained in the aim chapter as well as its contradiction with the legal provisions and basic human rights enshrined in the legal documents addressed throughout this piece of work.
This has been conducted through, first, examining the existing material on the design, characteristics, practices, and conditions of supermax prisons. The aim of this examination is to illustrate the constitutionally inadequate system of the supermax model consisting of the total separation from the natural rhythms of the outside world and the total denial of the human agency imposed on inmates within these facilities just as described by Goffman’s theorization of the “Total Institution”. Second, examining several human rights reports and law cases which illustrate that supermax prisons most often operate outside the scope of law. All for the purpose of indicating the “state of exception” that these prisons represent as described by Agamben.
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4 BACKGROUND:
This chapter will provide a general background on the history of solitary confinement as a form of punishment and the birth of the supermax doctrine in an attempt to give a deeper understanding of these institutions before engaging with the research.
4.1 A brief history of solitary confinement as a penal strategy:
The use of solitary confinement predates the birth of the modern prison and is one of the oldest and most enduring prison practices42. Apart from the death penalty, it is also the most extreme
penalty which can legally be imposed on prisoners43. However, during the early and
mid-nineteenth century, the use of solitary confinement as a form of punishment accelerated increasingly in both sides of the Atlantic (Europe and America) when new “separate” and “silent” penitentiaries were especially established and designed to enable the strict isolation of convicts from one another and from the outside world. Solitary confinement was the main form of imprisonment for the entire prison populations in these penitentiaries. It sought primarily to
morally reform the minds of prisoners through rigorously hiding them behind thick walls away
from almost everyone’s eyes, as it was believed that once left alone with their conscience and the Bible, prisoners would effectively remorse and contemplate their sinful deeds and would engage in an inner reflection that will enable them to see the error of their ways44.
It soon became clear, however, that these new penitentiaries offered little proof that they were any more effective than other forms of confinement and showed very little evidence of reforming criminals. Moreover, a significant evidence of the devastating health effects caused by solitary confinement surfaced as many prisoners who were placed in these penitentiaries demonstrated signs of mental illness, leading to the emergence of a growing moral and ethical debate about whether it was right to keep prisoners in strict solitary confinement for long periods of times. Thus, by the late nineteenth century, the isolation system was mostly dismantled on both sides of the
42 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 152.
43 Shalev, S, A Sourcebook on Solitary Confinement, London: Mannheim Centre for Criminology, London School
of Economics, 2008, p. 2.
19 Atlantic and the systematic use of prolonged solitary confinement was abandoned. By then, however, solitary confinement had become a permanent feature of prison systems worldwide as a short-term, but severe, punishment for prisoners who broke prison rules, for preventing escapes, for protective custody of vulnerable prisoners, and for holding prisoners convicted of crimes against the state45.
The use of solitary confinement was further developed later on, in which it started to aim at more concrete purposes other than merely imposing a short-term punishment on problematic prisoners. Solitary confinement started to constitute an essential stage in therapeutic behavior modification programs. The logic was that an environment of unrelenting isolation is inevitable to increase the prisoner’s prospect to succeed in the next stage of the program: “remodeling” through therapy and medication46. For instance, Control and Rehabilitation Effort (CARE) and Special Treatment and
Rehabilitative Training (START) were established in the US federal penitentiary at Marion and the Federal Medical Center for Prisoners at Springfield, Missouri respectively, as strict and coercive programs of behavior modification aimed at turning the prisoner into a “tabula rasa” , a blank slate of mind, on which useful traits and acceptable behaviors could later be engraved. Participation in the START program was not voluntary. Those who were selected to take part in it were held in solitary confinement, provided only with the bare necessities, and initially allowed out of their cells only twice a week for showers and once a week for exercise. A prisoner who behaved in a way which prison officers, who were charged with a dual role of control and treatment, determined to be “good behavior” for twenty days, based on a detailed list of expectations, would ascend to the next stage of the program and be allowed out of his cell for an hour and a half a day, and so on, gradually increasing the level of prisoners’ privileges. “Bad behavior” on the other hand would result in demoting the prisoner back to the initial stage of privileges47.
45 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 152.
46 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 34- 35. 47 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 35-38.
20 Behavior-modification programs that rely on solitary confinement attracted a great deal of controversy from the very beginning because of their strict, coercive, and dehumanizing nature, as well as the power these programs gives to one man to impose his views and values on others and to decide accordingly, when to mitigate the punishment and when to increase it 48.
4.2 The birth of the supermax doctrine:
After the dismantling of the penitentiaries that used an isolation system for prolonged periods of time on the entire prison population in the late nineteenth century on both sides of the Atlantic, solitary confinement, despite remaining a permanent feature of prison systems worldwide, was imposed only for restricted and identified periods of time49. However, up until the beginning and
middle of the twentieth century, the use of long-term, large-scale solitary confinement returned to the fore, in the form of supermax prisons, an extreme variant of short- term solitary confinement units found in traditional security prisons50. The idea of the supermax model emerged out of the
prison violence of the1970s and the early 1980s, when dozens of guards all around the US, including two at the maximum-security federal prison at Marion, Illinois, were murdered by prisoners. First, prison authorities established procedures to minimize inmate-staff contact; then they took to “locking down” entire prisons for indefinite periods through keeping inmates in their cells all day and closing down communal dining rooms and exercise yards. Eventually, they began to explore the idea of making the general prison population safer by creating entirely separate and high-tech, supermax prisons in which “the worst of the worst” prisoners would be incarcerated in permanent lockdown conditions51. Thus, supermax prisons proliferated increasingly in the US. As
of 1996, over two-thirds of states had supermax facilities that collectively housed more than 20,000 inmates. In 2004, 44 states had supermax prisons52. Albeit on a relatively smaller scales, similar
prisons have proliferated and are now operating elsewhere as well. Supermax prisons were thus
48 Ibid, p. 37.
49 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 152.
50 Ibid, p. 153.
51 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 37- 39. 52 Daniel P. Mears, Evaluating the Effectiveness of Supermax Prisons, Justice Policy Center at the Urban Institute,
21 found as a risk-management tool in which they especially house prisoners classified as high risk and/or difficult to control in strict and prolonged isolation53.
Foucault’s theory of modern disciplinary society traces the change in the concept of punishment that corresponds with two different modes of power associated with different historical periods. The first is sovereign power historically associated with the king or the monarch who punished and executed criminals publicly. When this form of sovereign power dominated, torture was a public spectacle. For instance, criminals were put on a rack, covered in boiling oils, and hacked to pieces until they confess their crime. Foucault argued that this constituted a “political ritual” with the intention of displaying the immense power of the sovereign and to have punishment inscribed on the body. The punishment associated with sovereign power was thus made visible, put on display and out in the open54.
When disciplinary power emerged in the middle eighteenth century it adopted private detention as a punishment rather than torturing and executing in public. Thus, leading to the emergence of the modern prison where each individual would be carefully supervised, their time will be organized in an extremely effective manner, and their days will be partitioned off into segments. The punishment associated with disciplinary power was thus no longer about crushing, dismembering, and overpowering the body. Rather, the purpose of punishment was to transition people from one type of people to another55.
This was evident in the first two “waves” of solitary confinement that attempted to affect prisoners’ minds and cause an internal change in them. The first wave was directed at the moral reformation of prisoners while the second wave was led by psychologists motivated by newly developed behavioral sciences to turn prisoners into “docile bodies” to be reformed56. Docile bodies,
according to Foucault, are bodies that are formless and pliable. When prisoners are turned into docile bodies, they become capable of being shaped, manipulated, and trained not only so that they
53 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 153.
54 Foucault, M, Discipline and punish: the birth of the prison. Penguin, 1977, p. 12. 55 Ibid, p. 231-233.
22 do what one wishes, but so that they operate as one wishes, with the techniques, the speed, and the efficiency that one determines57.
Thus, supermax prisons did not constitute a new penology or a new breed of prisons as such. Rather, supermax prisons constituted a contemporary version of the ideas and practices of the disciplinary power conceived of in the late eighteenth century and developed and modified throughout the nineteenth and twentieth centuries with the same indisputable intentions: the control of not solely prisoners’ bodies, but also minds, and spirits58.
However, the third wave of solitary confinement represented by the emergence of supermax prisons neither aimed at moral reformation nor behavioral modifications. Instead, supermax confinement attempted to extinguish the agency of inmates and to dehumanize them all together through stripping them of their identities and removing them entirely from the outside world for an indefinite period of time. As such, supermax confinement is unprecedented in modern corrections and constitutes a new dimension of Foucault’s theory on the use of “disciplinary power”. This is embedded in the design of these facilities, which will be described in detail in what follows, that reflects the emphasis on the extreme control, isolation, and removal from the natural rhythms of the outside world.
5 ANALYSIS:
5.1 The design, characteristics, and conditions of the supermax model:
When entering a total institution, Goffman describes, a person goes through a “mortification process” that is, a series of abasements, degradations, humiliations, and profanations in which that person’s self is systematically mortified. Through this process, inmates are stripped of the individual and collective identities they had “on the outside” and are given a new identity that makes them a part of the “inmate world” inside the institution59. Often, this involves taking from
them all of their personal possessions and replacing those items with standard issue items that are
57 Foucault, M, Discipline and punish: the birth of the prison. Penguin, 1977, p. 135-138.
58 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 39-42.
59 Goffman, E, Asylums: essays on the social situation of mental patients and other inmates. Doubleday, 1961, p.
23 the property of the institution60. Once a person enters a total institution and begins this process,
their autonomy is taken away from them and their communication with the outside world is limited or prohibited61.
Through intensifying and prolonging the isolation with a bare to no human contact, supermax prisons effectively maximizes these practices of stripping off one’s identity. Moreover, the functioning of the supermax and its inmate world is to a large extent an example of the functioning of the total institution and the special inmate world it creates as described by Goffman. This is embodied in the extraordinary design, characteristics, and conditions of supermax prisons.
Although the design may vary slightly between the different supermax prisons in terms of the fine details of regime and physical construction, central features are nevertheless constant. The entire prison external site is equipped with high-tech measures of security and surveillance, as is the prison’s interior. Many supermax housing units utilize the “small pod” design. This entails each housing unit being divided into sections (or pods), each consisting of eight to ten single cells that are separately secured. All cells face a wall. Each pod has its own exercise area attached, so that prison staff can let a prisoner out of his cell into the exercise area using an automated system and without direct staff contact. Cells are arranged so that prisoners have no view of one another whatsoever. Units are stark, monotonous, and sterile in appearance and feel62. Cell doors are
equipped with a slot through which prisoners receive their daily provisions such as food, mail, and medication without actually seeing the prison officials. Privacy is non-existent, as cell doors are made of perforated metal that allows constant supervision of inmates inside their cell, and regulations prohibit inmates from obstructing this view. Those inmates who hangs a towel or a shirt over their perforated cell door in an attempt to gain some privacy will be charged with a disciplinary offence, resulting in a possible extension of their time in the supermax63. Lights in the
60 Ibid, p. 16.
61 Ibid, p. 21.
62 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 167.
63 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
24 cells are never turned off so that inmates can be continuously monitored by guards who have video access to their cells64.
In these prisons, inmates are held for up to 23 hours a day in a single cell measuring between 60-80 sq. feet, which are either windowless or have a very small window that allows little view to the outside world. For the one hour exercise, they exercise alone in a small cage or concrete empty exercise yard with no recreational equipment. They have no work or workshop opportunities or sport nor any communal activities. Visits from family and, where allowed, friends, are limited in number and duration and are held through a thick barrier so that inmates have no physical contact with visitors at any time. Conversations are held through a telephone receiver and may be monitored and recorded. With the exception of legal correspondence, both outgoing and incoming mail is monitored. Apart from no-contact visits, the only human contact that inmates have is with medical staff when needed and those visitations often tend to be cursory and are conducted at the pod-front65. In some units, these visitations are conducted through video conferencing equipment
rather than in person; in which there is no immediate face-to-face interaction (let alone physical contact), and can even allow employing telemedicine and telepsychiatry procedures in which prisoners medical and psychological needs are addressed by staff members who examine them and interact with them over television screens from locations many miles away66. On the few occasions
that inmates leave their housing unit for visits, they are handcuffed, shackled, and escorted by a minimum of two prison guards. Before they return to their cells, they will be body-searched despite having had no physical contact with anyone other than prison staff. Inmates can be held in these conditions for indeterminate periods that can extend for years. As for prisoners sentenced to life imprisonment and who get transferred to a supermax prison, they spend the duration of their natural life under these conditions67.
64 Lippke, R. L., Against Supermax, Journal of Applied Philosophy, 21(2), 109, 2004, p. 109.
65 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
Psychology Practice, 11(2–3), 151–183, 2011, p. 154.
66 Haney, C, Mental health issues in long-term solitary and “supermax” confinement, Crime & Delinquency, 49(1),
124–156, 2003, p. 129.
67 Shalev, S, Solitary confinement and supermax prisons: A Human Rights and ethical analysis, Journal of Forensic
25 In addition, through membership in a total institution, notes Goffman, “sequential scheduling of a person’s roles, both in the life cycle and in the repeated daily round” is automatically disrupted and strictly applied68. The rules in supermax prison are substantially rigid similar to Goffman’s
description. Each one of the very limited activities that are available to supermax inmates (food delivering, one hour solitary exercise, and showers) has its related, carefully choreographed rituals. To illustrate, delivering food to prisoners involves the following routine: when food carts are ready in, two officers collect them and deliver them to the housing units. They then take the cart to the front gate of the pod and wait for the control room guard to open it. They enter the pod, walk to the front of the cell and ensure that the prisoner sits on his concrete bed. They open the feeding slot and place the food tray on it. They step back while the prisoner walks to the cell front, collects his tray, and walks with it back to the farther side of his cell. The officers lock the slot and continue to the neighboring cell. When the empty food trays are later collected, the same ritual takes place, but in reverse order. A similarly carefully choreographed ritual takes place when a prisoner is due for the shower or the one hour solitary exercise. Prisoners leave their cells individually at a designated time for their one hour of solitary exercise. They do not need to be escorted, since the yard is located within the housing unit. The control room guard electronically unlocks the cell door, the prisoner comes out, and the door locks behind him. He walks along the corridor to the yard and stands in front of its gate until the control room guard remotely unlocks it. When the prisoner enters the yard, the door locks behind him, and remains locked for the duration of the exercise period. The processes take a few minutes and does not require direct staff contact with prisoners69.
Since the inmate’s separation from the wider world lasts around the clock and may continue for years in such a total institution, role dispossession, as Goffman describes it, therefore occurs70.
Role dispossession may be profound and irrevocable even after release from a total institution due to the rigid controlling regime that these institutions impose on inmates. For instance, supermax
68 Goffman, E, Asylums: essays on the social situation of mental patients and other inmates. Doubleday, 1961, p.
6.
69 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 169-170. 70 Goffman, E, Asylums: essays on the social situation of mental patients and other inmates. Doubleday, 1961, p.
26 prisoners may become so dependent on the structure and routines of the prison for strictly controlling all their movements that they find it difficult to function without them. One prisoner who was interviewed by researcher Sharon Shalev a week after his release from a supermax expressed some apprehension about life as a free man:
“I'm just conditioned, you know, after so many years of being on [here] it's, it's just basically conditions you … you know, you got your same routine every, you know, day in and day out. I'm not used to that, all that freedom and stuff like that … I'm more used to be confined, just because I've been doing it for so long, because I've been structured since I was like thirteen years old, you know … it's just part of the program for me now. It's hard to explain, you know”71.
5.2 The common penological justifications of supermax prisons:
Policy-makers and proponents of supermax prisons argue that they are needed for maintaining three main objectives: Increasing systemwide, order, control and security in prison populations; improving systemwide inmate behavior; and reducing recidivism rates after release from prison and thus reducing crime rates in society72. In what follows, these justifications will be examined
in an attempt to test their evidence-based credibility.
5.2.1 Increasing systemwide order, security, and control in prison populations:
One of the most prominent justifications of supermax prisons is that they are needed to impose an extended control over “the worst of the worst” inmates known to be violent, assaultive, major escape risks, refuse to follow prison rules, or likely to promote disturbances in a general population prison73. In short, those inmates who are incorrigible offenders, uncontrollable,unpredictable, highly dangerous and, crucially, beyond redemption74. It is alleged that these
inmates threaten the order, security, and control that prison administrators attempt to maintain
71 Cited in Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 229. 72 Mears, D. P., & Reisig, M. D., The theory and practice of supermax prisons, Punishment & Society, 8(1), 33–57,
2006, p. 2.
73 Pizarro, J., & Stenius, V., Supermax prisons: Their rise, current practices, and effect on inmates. Prison Journal,
84(2), 248–264, 2004, p. 249.
27 within ordinary general population prisons and therefore need to be housed in more restrictive facilities and be subjected to intense surveillance75. The logic is that “isolating danger” will
supposedly achieve a wide range of benefits that all together will contribute to increasing systemwide order, security, and control in general population prisons. First, the most dangerous prisoners will be removed and thus their negative influence on the prison population will dissolve. Second, security arrangements in general population prisons can be relaxed and control can be maintained more effectively. Third, the very existence of supermax prisons will act as a deterrent76.
Nevertheless, there is no specific judicial definition of what constitute the “worst of worst” inmates that there incarceration in supermax prisons would maintain order and control in general population prisons and the courts have no role in making such designations or in the concomitant placement of such inmates in supermax prisons77. Instead, it is up to the officials
of each correction department to decide who is to be transferred to a supermax, why, and for how long. As for the admission criteria at supermax prisons, they typically specify serious violations committed while in prison such as, threatening or injuring other prisoners or staff, possession of a deadly weapon or drugs, and escape attempts. The criteria, however, is not predetermined and can expand to include much lesser violations such as, disruption of orderly operations or disciplinary infractions78. Consequently, the plausibility that states will
consistently incarcerate the most disorderly inmates in supermax prisons which their removal will contribute effectively to improving systemwide order is scant. As definitions of what constitutes a specific offense vary considerably from one state to another. This has been evident from the early establishments of these institutions in the 1980s. For instance, after England and Wales established special disciplinary units for difficult, dangerous, and disruptive prisoners in
75 Lippke, R. L., Against Supermax, Journal of Applied Philosophy, 21(2), 109, 2004, p. 111.
76 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 65-66.
77 Mears, D. P., An assessment of supermax prisons using an evaluation research framework, Prison Journal, 88(1),
43–68, 2008, p. 45.
78 Kurki, L, & Morris, N, The Purposes, Practices, and Problems of Supermax Prisons, Crime and Justice, 28,
28 1984, attempts were made to determine how these inmates were identified by prison administrators. Prison wardens were asked to nominate their lists of most disruptive inmates, which then were compared to official records of disciplinary transfers, segregated inmates, and inmates involved in serious incidents. The results showed very little overlap. Those who were identified as troublemakers by prison wardens had typically not experienced sanctions that were designed to deal with dangerous or disruptive behavior. These findings suggest that different groups of prisoners were identified as administrative and disciplinary problems. As such, these findings support the fact that many prisoners are transferred to supermax prisons because they constitute an administrative nuisance and not because they are particularly “dangerous”79.
In the US, certain supermax facilities were heavily criticized to further dilute the admission criteria and even admit inmates with no disruptive prison record in an attempt to remain full and in function. For example, in a Human Rights Watch report in 1999, the Virginia Department of Corrections (DOC) was criticized for assigning felons who are not incorrigibly dangerous and pose no security or safety risk for whom supermax confinement may be warranted solely on the basis of the length of their original sentence to Red Onion State Prison and Wallen’s Ridge State Prison (both supermax prisons). Felons caught with guns who qualify for a five-year mandatory sentence in a general prison population would, according to the DOC, be eligible for a supermax incarceration. Hence, subjecting them to unnecessarily restrictive controls and arbitrarily depriving them of the activities and programs available ordinarily in traditional security prisons. Thus, the DOC was criticized for attempting, in a blatant effort, to adjust supermax housing criteria not to reflect genuine security and management needs but simply to fill what would otherwise be half empty, but very expensive, facilities whose capacity exceeds the state’s needs80. Additionally, a 2000 human rights assessment report of supermax
confinement also conducted by Human Rights Watch echoed these findings. The report stated
79 Ibid.
80 Human Rights Watch, Human Rights Violations in The United State: Red Onion State Prison Super-Maximum
Security Confinement in Virginia, 1999, https://www.hrw.org/reports/1999/redonion/Rospfin.htm#P59_713, (accessed 11 May 2019).
29 that “Many correctional authorities use overly broad and vague criteria for determining supermax eligibility and fail to exercise appropriate control over placement decisions. As a result, inmates are placed in supermax confinement even when such restrictive controls are clearly excessive in light of their behavior. For example, prisoners who are difficult but not dangerous, who have been involved in a single fight, who have accumulated a record of minor, non-violent disciplinary infractions, or who are gang members but have not been involved in any misconduct.”81
A more recent study in 2015 conducted by the National Prison Rape Elimination Act Resource Center (NPRC), a joint project of the federal Bureau of Justice Assistance and the National Council on Crime and Delinquency has been found to support the same findings. The study stated that “Originally intended to handle dangerous inmates and those who had committed very serious infractions, over time, the use of segregated housing expanded to include a high proportion of individuals with violations that are disruptive but not violent such as, talking back, being out of place, refusing to program, or refusing to change housing units or cells82.”
In 2012, for example, South Carolina made it a solitary confinement-eligible offense for inmates to access social networking sites, either directly or through password-sharing with family members or friends outside of prison. Since its implementation, this policy has led to more than 400 disciplinary cases, with over 40 inmates receiving sentences of more than two years in solitary confinement83.
Another factor that is usually invoked to justify the need for supermax prisons as a tool for improving systemwide order and security is their deterring effect. Prison administrators assert that supermax prisons serve as a general deterrent within the correctional population, that their
81 Human Rights Watch, Out of Sight: Super-Maximum Security Confinement in the United States, 2000, https://www.hrw.org/legacy/reports/2000/supermax/Sprmx002.htm#P66_8079, (accessed 11 May 2019).
82 Hastings A, Browne A, Kall K, et al: Keeping vulnerable populations safe under PREA: alternative strategies to
the use of segregation in prisons and jails. New York: Vera Institute of Justice, National PREA Resource Center,
2015.
83 Kenneth L. Appelbaum, MD, American Psychiatry Should Join the Call to Abolish Solitary Confinement, The
30 presence curbs violence and disturbances within penal institutions. General deterrence may occur as individuals observe the imposition of the threatened punishment on others or solely by the knowledge that a given behavior carries a severe punishment84. Thus, prisoners, as
rational actors who wish to maximize gain and minimize pain, will seek therefore to stay out of the highly restrictive supermax environments. The threat of being sent to a maximum -security prison thus acts as a deterrent and contributes to the reduction of violence and increasing of security and order in general population prisons85.
No research has looked at the deterrent effect of supermax facilities on behavior within prisons and thus there is no empirical studies demonstrating the effectiveness of supermax prisons as means of maintaining systemwide order, security, and control86. However, deterrence research
suggests that supermax facilities are less likely to be effective in reducing violence or disturbances within the general population87. According to criminological literature, for
deterrence strategies to be effective, offenders must not only be aware of the sanctions but also believe that they will get caught and punished with the threatened sanctions. What is important in the efficacy of sanctions as deterrents is not their actual severity but individuals’ perceptions of their certainty88.
Accordingly, the deterring effect of supermax prisons would most possibly be undermined by the lack of a clear definition of those inmates who belong to the “worst of the worst” category, the lack of a clear definition of the type of disruptive act that requires a supermax incarceration, and the lack of specific criteria for admitting inmates to supermax prisons. As such, the perceived probability of placement in supermax prisons is likely to be low as there is no certainty that a
84 Pizarro, J., & Stenius, V., Supermax prisons: Their rise, current practices, and effect on inmates. Prison Journal,
84(2), 248–264, 2004, p. 258.
85 Shalev, S, Supermax: Controlling risk through solitary confinement, Willan Publishing, 2009, p. 68. 86 Lippke, R. L., Against Supermax, Journal of Applied Philosophy, 21(2), 109, 2004, p. 113.
87 Pizarro, J., & Stenius, V., Supermax prisons: Their rise, current practices, and effect on inmates. Prison Journal,
84(2), 248–264, 2004, p. 260.
31 particular act may be determined by correction officials as eligible for supermax incarceration as opposed to another.
Furthermore, increasing the severity of a punishment, which is the rationale that supermax prisons adopts, has generally been found to be less effective in achieving deterrence than increasing its certainty. For instance, a survey by the New York Times found that states in the US without the death penalty have lower homicide rates than states with the death penalty enforced in place. The Times reported that ten of the twelve states without the death penalty had homicide rates below the national average, whereas half of the states with the death penalty have homicide rates above. Between 1980 and 2000, the homicide rate in states with the death penalty has been 48% - 101% higher than in states without the death penalty. When comparisons are made between states with the death penalty and states without it, the majority of death penalty states show murder rates higher than non-death penalty states. The average of murder rates per 100,000 population in 1999 among death penalty states was 5.5, whereas the average of murder rates among non-death penalty states was only 3.689.
Thus, if enforcing death penalty did not show any significant effect in deterring felons from committing crimes while outside the prison, the deterrence effect of supermax prisons on inmates who already are imprisoned do not seem terribly convincing. The threat of imprisonment did not deter them from committing crimes. Hence, it could be argued that it is unlikely that the existence of supermax prisons will contribute to deterring prisoners from committing further crimes while in prison.
This conclusion has been supported by a study conducted on four states in the US, three of which had supermax prisons (Arizona, Illinois, and Minnesota) and one that did not (Utah) to examine the effect of supermax prisons on reducing levels of institutional violence within prison systems90.
The study employed a multiple interrupted time series research design. The intention was to
89 The New York Times, Deadly Statistics: A Survey Of Crime and Punishment, 2000, https://www.nytimes.com/2000/09/22/us/deadly-statistics-a-survey-of-crime-and-punishment.html,
(accessed 11 May 2019)
90 Briggs, C. S., Sundt, J. L., & Castellano, T. C., The effect of super-maximum security prisons on aggregate levels of
32 investigate the effectiveness of supermax prisons in reducing inmate and inmate-on-staff assaults. The study found little evidence that violence abated after the opening of supermax facilities in Arizona, Illinois, and Minnesota compared to Utah, a non-supermax state. First, the study found no support for the hypothesis that supermax prisons reduce levels of inmate-on-inmate violence as compared to Utah, a non-supermax state. Second, mixed support was found for the hypothesis that supermax prisons increases staff safety. In Minnesota, the opening of Oak Park Heights supermax (OPH) in 1982 showed no effect on levels of inmate-on-staff assaults91. While,
notably, the opening of the Special Management Unit (SMU) in 1996 increased staff injuries with seven staff injuries during the first month of its operation compared with an average of five staff injuries per month in the 12 months preceding its opening92. However, the implementation of a
supermax had showed reduction in assaults against staff in Illinois in which incidents of inmate-on- staff assaults decreased to approximately 21 staff assaults per month in a system that averaged 79 assaults against staff per month in the year preceding the opening of the supermax93.
As it has illustrated, the criteria that correction officials use in defining the term “worst of the worst” and determining whether or not an inmate constitutes a “risk” to the systemwide order, security, and control is ambiguous and loos. There have been no published accounts of any states efforts to develop research protocols for assessing “how much is enough” for inmates who are placed in supermax confinement94. This in return explains the alterable and mixed findings of the
above discussed study.
Therefore, until these issues are clarified, any attempt to assess how well supermax prisons are effective in increasing systemwide order, security, and control is likely to rest on a shaky ground and remain ambiguous and uncertain.
91 Ibid, p. 1365.
92 Ibid.
93 Ibid, p. 1368.
94 Mears, D. P., An assessment of supermax prisons using an evaluation research framework, Prison Journal, 88(1),
