The federal prison system abuses its use of solitary confinement of prisoners, particularly those identified as mentally ill.
A new inspector general's report (PDF) from the Department of Justice (DOJ) illustrates how little oversight there is of the Bureau of Prisons (BOP). The report demonstrates the need for some measure of privatization, with the appropriate priorities, to establish clear guidelines for solitary confinement in contracts with the federal government.
The Reason Foundation's Lauren Krisai and Leonard Gilroy have written about public-private partnerships in healthcare in corrections helping control costs, improve performance, and increase accountability. You can read the study here (PDF).
There is, however, little political will to do it.
According to the report, the BOP's "guidance and policies do not clearly define 'restrictive housing' or 'extended placement'." The inspector general noted that BOP "houses inmates, including those with mental illness, for long periods of time isolated from other inmates and with limited human contact," conditions which could constitute solitary confinement under definitions used in DOJ Civil Rights Division investigations and by the United Nations.
The Office of the Inspector General (OIG) found one inmate, for example, who spent 19 years in a "restrictive housing unit" before being sent to a residential treatment facility.
"Although the BOP states that it does not practice solitary confinement, or even recognize the term, we found inmates, including those with mental illness, who were housed in single-cell confinement for long periods of time, isolated from other inmates and with limited human contact," the report said.
The OIG provided numerous examples of the misuse of confinement. BOP didn't have adequate policies to address the needs of mentally ill inmates in restrictive housing, and did not limit how long inmates could spend in restrictive housing (limiting instead how short stays could be).
The federal prison system as the largest number of people in solitary and "they're also isolating people, putting people in solitary at a higher percentage rate" than state counterparts, Jean Casella, co-executive director of Solitary Watch, says. The OIG found it was 7 percent in the federal system compared to between 4 and 5 percent at the state level. The national average is "way higher than it needs to be to begin with," Casella says.
"I think this report was pretty thorough and pretty hard hitting and we probably will not see its like again for quite a while," Casella says.
The OIG found federal prisons kept mentally ill inmates in "Special Management Units" (SMUs), a form of restrictive housing for an average of 896 consecutive days. Inmates with mental illness spent "disproportionately longer periods of time" in restrictive housing than other inmates. And 13 percent of inmates with mental illnesses in the OIG's sample population were released directly from prison after spending nearly 29 months in a special management unit before their release.
While the Obama administration imposed a new policy in 2014 increasing the standards of mental health care for federal inmates, the "the total number of inmates who receive regular mental health treatment decreased by approximately 30 percent, including 56 percent for inmates in SMUs, and about 20 percent overall for inmates in" restrictive housing, according to the report
"Based on our review, it appears that mental health staff may have reduced the number of inmates, including those in… [restrictive housing], who must receive regular mental health treatment because they did not have the necessary staffing resources to meet the policy's increased treatment standards," the report found.
"In the few states that have actually banned the placement of mentally ill in solitary at all, including New York and Colorado and a couple of others, suddenly you find that… fewer people are getting diagnosed as having that mental illness because it means that if they have it, they have to be sent to a special unit," Casella says.
The inspector general call on the BOP to establish a policy explaining when single-cell confinement should be used, identify "all forms of restrictive housing utilized throughout its institutions" and bring them up to date on policy, that it make sure mental health staff document diagnoses and enter them into electronic systems, develop formal performance metrics to measure the effectiveness of residential mental health treatment programs, and to "provide additional guidance and training to mental health staff on diagnosing mental illness."
"The inspector general does not have any significant enforcement capability, that's my understanding," Casella explains. "it would have to either be legislation or high level policy change from the executive branch to make any meaningful change."
England, Casella says, has "a three-pronged oversight system with prison ombudsman's office and her majesty's inspector of the prisons and citizen oversight boards, and this really robust structure for oversight, and we don't have anything like that here.
"And we also don't have a Congress that really cares very much about people in prison. They don't vote, we're a law and order society, supposedly, other voters don't care that much about what happens to people in prison, and there is no oversight structure."
The Trump administration might be more open to privatization with the potential for reform, bringing in oversight in as if through a back door. Casella does not, however, believe privatization is helpful.
"You would think that [the private sector] couldn't do a worse job than the government does but they actually do a worse job," she says, "and that's because the only criteria that they're held to, they know the only thing that's really meaningful to the people who are giving them the contracts is cost."
The key, says Sasha Volokh, a law professor at Emory who studies privatization, is embedding reform in the language of the contract.
Contracts could, for example, "tax" the use of solitary confinement, or in-custody deaths, assaults, and even recidivism—deducting from the total contract pay out based on a formula tied to those metrics.
"There's potential to make the private sector really accountable," says Volokh, "and you might think that they would be more likely to do what they're told if they're more concerned about not getting their contract renewed and so on, so obviously this requires a public sector that is willing to not renew contracts and to monitor contract terms."
Holding the public sector accountable for reforms in the private sector has been particularly problematic, he says.
"Public systems can be really non-transparent," Volokh says, "it can be really difficult to reform public systems, and it can be hard to fire these people because of government employee unions, because of civil service rules and things like that so the public system can be really unaccountable."
"I don't want to totally discount that there might be ways of monitoring the government which are easier than ways of monitoring private firms," he says, "but those may face more resistance from entrenched interests in the government sector.
After its report, the inspector general's office is largely powerless to effect change in the BOP. Not so if it has the threat of a canceled contract. Even the threat of moving to a private provider could induce change in the public system. And the BOP could also be motivated to reform if the public sector can compete for bids with the private sector, making it easier to improve outcomes across the board.
Privatization through contracts offers a substantive incentive to reduce the use of solitary confinement and to meet treatment quality standards. The political will is still necessary, but it would no longer face the institutional resistance of the public sector.