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Case in Point

Is a Life in Solitary “Cruel and Unusual?”

In Pennsylvania, the heart of solitary confinement reform, an intellectually disabled inmate says he’s been held in wretched isolation for 36 years.

Update 11:30 a.m. 09.22.2016

On Sept. 20, a federal judge in Pennsylvania ordered prison officials to come up with a plan to release from solitary confinement. The judge said there was no valid justification for the state's continuing punishment of Johnson given his decades-long record of no major disciplinary violations.

Original Story

John Wetzel has to answer, literally and figuratively, for Arthur Johnson.

Wetzel, the nationally-known, reform-minded secretary of the Pennsylvania Department of Corrections is the lead defendant in a federal lawsuit and injunction request filed three weeks ago by lawyers for Johnson, an intellectually disabled man who allegedly has spent the past 36 years in solitary confinement in the prisons of the Keystone State. The indefinite conditions of that confinement, Johnson’s lawyers contend, violate the 8th Amendment’s ban on “cruel and unusual punishment.”

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The grim allegations of the complaint, which state officials have not yet answered, are hard to square with the restrictions Wetzel and company say they recently have placed on the use of solitary confinement in Pennsylvania. Johnson’s lawyers, for example, allege that their client was consistently dehumanized for years after a Justice Department investigation excoriated Pennsylvania prison officials for their mistreatment of mentally ill inmates in solitary confinement. The inmate’s lawyers want a trial judge to issue a preliminary injunction that would quickly get Johnson out of solitary and into a “step-down” program designed to re-integrate him back into the general prison population.

Did Johnson’s wretched existence get any better after state officials promised to reform their prison policies and practices? Can a state that has pledged to end the confinement of mentally ill inmates in solitary continue to keep intellectually disabled inmates indefinitely isolated? This lawsuit may answer those questions. In the meantime, state corrections officials and their lawyers seem to be preparing a defense that will not deny but rather will seek to justify Johnson’s restricted status.

Johnson was just 18 years old in 1970 when he came to prison on a life-without-parole sentence, convicted of murder following a trial in which a state psychologist testified that he was rated “retarded educable” on IQ tests. His background surely didn’t help. His mother died when he was two years old and he has no memory of her, Johnson told a psychologist hired recently to help his defense. He was raised by relatives and consistently was in trouble with the police from a very early age. Not even his lawyers argue that he was ever a saint.

In December 1979, the complaint alleges, Johnson was removed for good from the general prison population at SCI Pittsburgh for “allegedly being involved in an escape attempt” which Johnson himself says also involved the taking of a hostage. We do not know the details of this episode. State officials surely will tell us when they formally respond to Johnson’s complaint. What we do know, from the record and Johnson’s own account, is that he lashed out against guards and fellow inmates during his early years in prison as he struggled to adapt to the idea of spending the rest of his life in prison. That was more than a third of a century ago.

At the time of the escape/hostage episode Johnson was put into isolated detention and then was shipped to SCI Huntingdon. Then he was brought back to SCI Pittsburgh. Then he briefly was placed in the custody of the federal Bureau of Prisons. Then he was sent to SCI Graterford. Then to SCI Greene. Then to SCI Rockview. Then to SCI Smithfield. Then to SCI Forest. Then back to SCI Huntingdon. Then back to SCI Rockview. Then, finally, to SCI Frackville, where he is today. All this time, in all these facilities back and forth all over the state, Johnson was kept in solitary confinement, in one isolated cell after another, the complaint alleges.

Since the Carter presidency, Johnson’s lawyers claim, their client has been held in an artificially-lit cell “approximately 7 feet by 12 feet.” He has been permitted one hour of time outside, weather permitting, in a cage roughly the size of his cell, which he enters only after a mandatory strip search. He has not had physical contact—not touched another human being—in decades. All of this, they say, has deprived Johnson of “basic and fundamental human needs” like “mental health and environmental stimulation; social interaction; sleep; a reasonable opportunity to exercise; and dignity.”

These conditions are not unique to Johnson or to Pennsylvania. They apply to many inmates held in isolated detention, whether they are mentally ill or intellectually disabled or neither or some combination of both. Nor are the consequences Johnson allegedly suffers as a result of such prolonged isolation particular to him. Johnson cannot sleep. He suffers from memory loss. His intellectual disability, long ago charted, has gotten worse. “There are often times when Mr. Johnson goes days without speaking to another person” because of the rules of confinement imposed on him,” his psychiatrist wrote. Johnson is suffering from what his lawyers and experts call a “social death.” The question of this case is whether such a “death” breaks the law.

Perhaps the strongest portion of the case, and the one state officials might have the most difficulty in explaining away, are the allegations that Johnson has not been given “any meaningful opportunity” to change the circumstances of his confinement even though “he has not had a serious disciplinary infraction for over 25 years.” If the allegations in the complaint are true, prison officials have constructed an impenetrable bureaucratic maze to prevent the inmate from ever being returned to the general prison population. And they have done so at the same time they’ve been telling the public, and the Justice Department, that they’ve initiated more due process for inmates. Here’s how Craig Haney, an expert on the Johnson team, put it in his affidavit attached to the injunction request:

The Pennsylvania DOC has exacerbated Mr. Johnson’s extremely long period of confinement in solitary by denying him anything more than superficial psychological monitoring and care despite clear, substantiated risks to his psychological well-being.

In addition, the Pennsylvania DOC does not appear to have provided a clear explanation for why Mr. Johnson continues to be kept in isolation (despite years of conforming behavior), and has not provided Mr. Johnson with any opportunity or pathway to reduce his period of solitary confinement (i.e., he has not been told what he can do to make his suffering end).

None of this necessarily establishes an ongoing violation of Johnson’s constitutional rights. The law makes it difficult for these cases to proceed to trial. Difficult, but not impossible. A similar case, involving a Pennsylvania prisoner named Russell Shoatz, was brought in another federal district in June 2013. Shoatz had been held in solitary confinement for 22 years after two escape attempts. He was released from isolated detention in 2014 as the litigation proceeded. In February a federal magistrate judge rejected an attempt by state attorneys to dismiss the case.

In Johnson’s nascent case, state lawyers haven’t even formally responded yet to the May 12 filings (the deadline passed earlier this week). But prison officials this week, in an email, gave me a preview of what the defense might be. “While the department cannot speak to Mr. Johnson’s specific case we would like to point out that there are a number of different reasons that an inmate would be placed in administrative custody (AC) within the DOC system,” a corrections spokeswoman told me.

Included in the justifications for such custody are “escape risk,” “protection from other inmates” and “inmate is a risk to institutional security and has been associated with dangerous behavior, such as instigating a disturbance.” The spokeswoman continued:

Inmates who pose a unique and serious long-term threat to institutional security may remain on AC custody status and be placed on the Restricted Release List. This designation is reserved for only the most recalcitrant inmates who represent a critical security threat based upon the magnitude or repeated nature of his/her misconduct. Restricted Release is only imposed after a determination that a transfer to another facility or jurisdiction would not alleviate the security concern. Of the DOC’s 49,000 inmates, only 110 are currently on the Restricted Release List.

The department only assigns inmates to restricted housing after a comprehensive review of their cases and their status is reviewed on a regular basis so as to determine if and how they will be allowed to rejoin the general population. The department is working diligently to review the use of administrative segregation in an effort to reduce its use while also reducing prison violence.

It’s not hard to deduce from this what the defense in this case likely will be. Prison lawyers evidently won’t deny that Johnson has been held indefinitely in solitary confinement—there is likely too much of a paper trail confirming that—but rather will tell the judge that he still presents such a threat, to himself and others, that he cannot safely be be released back into the general prison population. They will add that his prior escape attempt in 1979, and the hostage situation that accompanied it, still justify isolated detention all these years later. State officials likely will add that Johnson’s status has been reviewed “on a regular basis” even if Johnson has not been privy to the substance of those reviews or been given feedback on how they went.

How all of this can be true if Johnson, as his lawyers claim, has “not had a serious disciplinary infraction for over 25 years” and has not been told “why he continues to be housed in solitary confinement” is surely something the trial judge will ponder as he reviews the briefs and hears argument from the lawyers here. The judge no doubt will want to know more about the shifting rationales offered by prison staffers to justify maintaining Johnson’s isolation through the decades. The judge may even ask the one of the saddest questions this case raises: After all these years alone, with his physical and mental capabilities already failing, is it too late for Johnson ever to function again in the company of his fellow human beings?

Supported by the Louis Lowenstein Award for Criminal Justice Commentary.