Hawaii lawmakers, backed by prison officials and staff, recently rejected a bill introduced by Sen. Clarence Nishihara that would have helped to ensure that Hawaii prisoners are not tortured.

Solitary confinement, the potential torture technique in question, was imported to Hawaii by the United States, which began using it in the early 1800s. A stated intention for the use of isolation at that time, as at present in Hawaii, was to rehabilitate prisoners.

Proponents in 1829 said rehabilitation would occur as isolation caused the “remorses of [the] soul and the terrors of (the) imagination” to “prey” on the mind, forcing the person to turn to God for relief.

In 1890, the U.S. Supreme Court noted that solitary was ineffective in terms of prisoner safety and was causing a concerning number of prisoners to become “semi-fatuous” — that is, somewhat demented.

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Other prisoners, the court pointed out, were driven “violently insane” or simply “committed suicide.” Those who better withstood this form of rehabilitation were nonetheless “not generally reformed” and were unable to “recover sufficient mental activity to be of any subsequent service to the community.”

It was evident, the court found in 1890, “that some changes must be made in the system.”

Some changes were made.

One was that the U.S. became a “global outlier” in the use of solitary confinement. In 2016, U.S.-American isolation of prisoners was so widespread that it was called a “human rights crisis.” Studies put the number of U.S. citizens in isolation in the range of 80,000 to 100,000 at any time, excluding categories of non-prisoners also held in confinement.

Solitary confinement extremism appears to be gradually weakening in the U.S. as an international consensus regarding use of the technique was expressed in 2015, establishing some minimum standards. These standards, known as the Mandela Rules, were prompted in part by shock resulting from exposure of the extent and nature of U.S.-American isolation. Numerous prisoners in the U.S. are isolated with no human contact for years, and sometimes decades on end.

“A nation should not be judged by how it treats its highest citizens, but its lowest ones.” – Nelson Mandela

Opposition to SB 603 was voiced by the Hawaii Department of Public Safety and the United Public Workers Local 646, the latter representing some 14,000 workers. The UPW stated that Bill 603 would “restrict the use of” confinement, which is accurate, but also that the Department of Corrections already “has in place policies and procedures to meet the concerns” of the bill.

The PSD made a similar appeal, stating that the bill would “contradict” current policy, but also that the “proactive and protective measures” in it are “already” in place.

Thus, both groups seem to have opposed the bill on the grounds that it would make unspecified unwanted changes, while also claiming that the bill’s main “concerns” and “proactive and protective measures” are already in effect in state policy.

Minimum Standards Needed

It may be true that the bill would have made unwanted changes, but a reading of current state policy on confinement illustrates that the stipulations in SB 603 are not in place. Yet, the modest bill did not even require adherence to the minimum international standards on isolation, from which current Hawaii policy deviates further.

One reason this is important is that minimum international standards are also, in some cases, legally required to be met in the U.S.

Because the U.S. has signed and ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the convention is American law.

Under the Mandela minimum standards for the treatment of prisoners, “prolonged” solitary confinement means being isolated for 22 or more hours per day, without “meaningful human contact,” for more than 15 consecutive days. “Indefinite” solitary confinement means confinement without a stated end-point.

Based on the “general consensus of contemporary thought,” these are both considered forms of “torture or other cruel, inhuman, or degrading treatment or punishment.”

In current Hawaii policy, neither of these practices are prohibited.

The PSD states in its current solitary confinement policy that it uses the technique in part as “a punitive action.”

Article 1 of the Convention against Torture, which is the law of the United States, defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him for an act he or a third person has committed or is suspected of having committed.”

Defining Torture

While the UN Special Rapporteur on Torture helped to ensure that the 15-day limit on solitary confinement (and complete prohibition on indefinite confinement) was included as a minimum requirement in the Mandela Rules, he has also pointed out that 15 days is more than double the amount of time that some studies have found can have a “long-term psychological impact” on people. Thus, the “absolute prohibition on solitary confinement exceeding 15 consecutive days” is likely under-protective.

In current Hawaiian policy, initial mental health evaluations are made before solitary confinement is imposed. Health professionals are required to make window-checks on isolated people once per day, and a prison guard must perform a window-check on isolated prisoners once every 30 minutes. Prisoners can pass notes to health professionals through a box. Health monitors can report to the warden on the status of isolated prisoners.

For “administrative” isolation, re-evaluations are to be made every 15 days, at which point isolation can be prolonged. For “disciplinary,” i.e. “punitive,” isolation, reauthorization is required every 60 days, at which point isolation may again be prolonged. The warden and an institutions division manager make all final decisions.

Non-contact personal visits and non-official phones calls may be allowed “in accordance with the facility visit policy.” A random sampling of facility visit policies in Hawaii prisons finds that: “Phone calls are a privilege and can be revoked at any time.” While prisoners can have a single one-hour visit per weekend, this is “contingent upon adequate available manpower,” and “requests for visits will be denied if an inmate has received a disciplinary action within 30 days of the requested visit.”

If a person is in solitary confinement for an alleged infraction, a single one-hour weekend visit may not be allowed for at least 30 days, with possible additional limitations if officials allege further infractions.

There are thus no stipulations in current Hawaii solitary confinement policy that prevent the possibility that prisoners may be tortured or otherwise illegally treated. Promises and assurances of best intentions are not good enough in environments like U.S.-American prisons, where documented abuse, including widespread abuse and misuse of solitary confinement, is common. Clear and strict mandates are necessary, which is why they are stipulated in the Mandela Rules.

In research submitted as testimony in support of SB 603, the American Civil Liberties Union of Hawaii illustrates that beliefs that solitary confinement has positive effects or is necessary for safety are overwhelmingly myth-based and out of sync with current findings and trends.

The bare minimum international standards for isolation represent a concessionary, low bar that was designed for practical implementation in a brutal world fraught with dictatorships, wars and massacres. Achieving compliance with them would be the equivalent of earning a D-minus.

In the indefatigable spirit of Nelson Mandela, how about going even further and aiming for a solid C?

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