What is COBA’s position on Punitive Segregation?

Introduction:  What do you mean by Solitary? 

Perhaps no issue concerning corrections procedures and protocols is more misunderstood by the general public than the distinction between Solitary Confinement – as seen on TV or experienced in “supermax” prison facilities – and Punitive Segregation (“PSEG”) as it is used in the NYC DOC.  PSEG is a penalty imposed upon mostly violent inmates after due process hearings for infractions while being held in the DOC’s custody. This was the subject of a series of articles in a recent edition of COBA magazine. See pages 5-7 in April’s edition:  http://crossmediaplus.com/flipbooks/april2014/

“Solitary confinement” is not a term used by corrections professionals. That term, and those like it, is a well chosen demonizing expression created by the prison reform movement geared at evoking a reaction. However in the jail settings, PSEG is one of many tools used to curb abusive behavior – even criminal conduct - by detainees while incarcerated. Many advocates of PSEG reform do not bother to define their terms, and conflate all types of segregation or isolation of incarcerated persons – whether for their own safety, that of others, or as punishment for violent behavior[1]. Public officials are often more careful, and yet the distinction is lost in the mix of politics[2].

In its Petition to the NYC Board of Correction to alter the use of PSEG, the definition proposed by the Jails Action Coalition is:
(b) Definition.

For the purposes of this chapter, “isolated confinement” shall mean the involuntary confinement of a person to a cell for twenty or more hours per day. Any such involuntary confinement of a person shall constitute isolated confinement, irrespective of whether that person is confined to a cell alone or with others[3]. 

Even on first blush the absurdity of this position, “whether confined in a cell alone or with others,” ignores the common usage of the word “solitary.”

In a January 2014 comprehensive study of adolescents and the jails from a noted Law Professor at Cardozo-- “Rethinking Rikers”[4] -- Professor Yaroshefsky writes:
Solitary confinement on Rikers is termed ‘Punitive Segregation’ and is used to punish behavioral infractions. It consists of 23 hours a day locked in a locked single unit cell, each with a bed and toilet. There is one hour for recreation in a fenced in area of the yard. Food is eaten in the cell. The punitive segregation unit has a shower.

Rethinking Rikers Proposal at p.8.  

In a footnote Professor Yaroshefsky equates punitive segregation with solitary confinement - -“It is also known as ‘solitary confinement,” ‘isolated confinement’, the ‘box’ or the ‘bing.’” [5] “It will be referred to herein as ‘solitary confinement.’ It is to be distinguished from short-term use of ‘isolation.” While well meaning, Professor Yaroshefsky proves that even between the advocates of reform the terms being used concerning PSEG are conflated.  

[1] See Vera Institute Report, Confronting Confinement, 2006; Legal Aid Testimony - New York City Council Fiscal Year 2013 Preliminary Budget, Mayor’s FY'12 Preliminary Management Report and Agency Oversight Hearings (Pointing out in a Footnote that at 8% NYC is even higher than NYS 7.6 % -- the highest figure in the nation – where averages of “isolated confinement” are between 2-4%). 

[2] See City Council Committee on Fire and Criminal Justice, Hearing on the fiscal year 2013 Executive Budget dated June 2012 at p.11. The Committee goes to some length to offer a descriptive definition. 

[3] See Jails Action Coalition 2013 Petition to the New York City Board of Correction.

[4] Rethinking Rikers, Moving from a Correctional To a Therapeutic Model for Youth, Ellen Yaroshefsky.  https://cardozo.yu.edu/sites/default/files/YJCFeb2_0.pdf

[5] Id. at Fn. 5, citing City of New York Board of Correction Staff Report, October 2013.