In Tennessee, you can be thrown into prison and held in solitary confinement indefinitely without being convicted of a crime. This practice has been used in the Volunteer State since 1858 under the euphemistically-named “safekeeping” law. The law allows jail officials to transfer the accused to a state prison and place them in isolation based on highly-questionable grounds.

Officially, excuses for these transfers range greatly, from the nature of the alleged crime to behavioral issues, pregnancy and even juvenile status. Often times the excuse is simply that the inmate places “an undue burden” on the county, with no further explanation. Far too frequently, however, county jailers transfer the accused because they are suffering from medical issues [1]. Moving these inmates to state prison effectively absolves the county of the responsibility and financial obligations associated with caring for them.

Fortunately, a recent exposé [2] has shed light on this dark practice and has prompted the state Legislature to begin “looking into the matter [3].” This is a promising start, but concrete action needs to be taken. Lawmakers must reform or repeal the safekeeping law to ensure that the state treats people with dignity and that the ill receive care rather than punishment.

Lawmakers originally designed the policy to allow local jailers to transfer those in their custody to other correctional institutions if their own facilities were inadequate. However, since its inception, its use has greatly expanded. Since 2011, jailers have applied it to more than 300 individuals. The average stay in solitary confinement for these inmates lasted over 320 days.

Currently, the safekeeping law permits extreme penalties without the benefit of due process. Those awaiting trial often remain in county jails because they were either unable to post bond or otherwise had their pretrial release rejected. If local jailers feel that their facilities are insufficient to house these individuals, then the accused may be transferred to a state prison.

The process generally involves a county official who asks the local prosecutor to request a transfer order from a judge. Far too often, the magistrate then consents, and the accused is transported to state prison. Once he or she arrives, instead of being integrated into the general prison population, the state’s policy is to place the individual in solitary confinement. This placement, which is usually reserved as punishment for the most violent and troublesome inmates, is intended as a “protective measure.”

It should come as no surprise that safekeeping’s use is contrary to its original intent. In fact, a Tennessee Appeals court stated [4] in 1980 that safekeeping’s objective was to permit individuals to be transferred to the nearest county jail capable of housing them, not to state prisons. Despite this, defendants transferred under the guise of safekeeping are almost exclusively sent to state facilities, where they are then subjected to solitary confinement.

Regenia Bowman is a perfect example of the safekeeping policy’s absurdity [5]. Though she was accused of a nonviolent crime, when it was revealed that she was suffering from a skin condition, she found herself in solitary confinement for nearly 190 days. Her story is like that of so many others who were ailing but weren’t admitted to a hospital. Rather, they were sent to prison.

Studies have shown that solitary confinement can have profoundly negative psychological and physiological effects [6] on individuals. Tennessee’s solitary confinement is largely marked by 23 hours of lockdown and three showers a week. Seclusion in a small cell for indefinite periods of time can wreak havoc on those subjected to the conditions, especially considering that many are already suffering from various ailments. Moreover, while there, prisoners often do not receive the regular [7], proper medical attention they need [8] as their health deteriorates.

Solitary confinement in state prison places the accused in a very difficult situation for other reasons, too. It limits their contact with their defense attorney, and it can encourage defendants to wrongly plead guilty in exchange for release from isolation. Clearly, solitary confinement is not the appropriate place to await trial.

It is inherently unjust to punish those who haven’t been convicted of a crime, especially given that they might be innocent. As a matter of philosophy, the U.S. approach to criminal law was built on the bedrock principle of the presumption of innocence – being innocent until proven guilty. Yet by transferring the accused to state prisons, which are usually reserved for convicted inmates, the safekeeping law effectively allows Tennessee to treat those accused of a crime as if they were already convicted.

The safekeeping law was designed before the Civil War in an era when county jails were deficient in many ways, but much has changed since then. Today in most, if not all, cases, the safekeeping law is unnecessary. More importantly, Tennessee shouldn’t automatically treat defendants as though they are hardened felons simply because they are physically or mentally ill. Instead, Tennessee should respect the presumption of innocence and hold itself to a higher standard of conduct.