Twenty-eight years.

That’s how much time, in total, Aaron Isby-Israel has served in solitary confinement within the Indiana Department of Correction since his 1989 incarceration. Some of that time has been broken up by stints in general population, but Isby has consistently served his time in administrative segregation at the Wabash Valley and Westville correctional facilities since October 2006.

No one denies that Isby has made bad, even criminal, choices. He was first incarcerated at the Pendleton Correctional Facility for a conviction of robbery with serious bodily injury, and his initial move to solitary was premised on a 1990 incident in which he stabbed two correctional officers and killed their canine.

But what is disputed is whether Isby should have remained in segregated housing as the decades passed. Though DOC argued in Aaron Isby-Israel v. James Wynn, et al., 2:12-cv-00116, that Isby’s ongoing non-cooperation with and hostility toward prison staff justified his placement in solitary, his counsel, and now a federal judge, believe DOC has not sufficiently reviewed Isby’s behavior over the years to determine if his continued segregation was warranted.

Specifically, Indiana Southern District Chief Judge Jane E. Magnus-Stinson ruled last month that DOC’s required 30-day reviews of Isby’s segregation were not sufficient to satisfy his 14th Amendment due process rights. Now DOC must develop a plan to transfer the inmate back to general population at Westville, a result Isby’s counsel said was more than expected.

‘Perfunctory’ performance

The issue, Magnus-Stinson said, is that Isby’s 30-day reviews were neither meaningful nor non-pretextual, as required under Hewitt v. Helms, 459 U.S. 460 (1983). Instead, DOC staffers demonstrated a “personal animus” toward Isby and “showed a reckless or callous indifference to his due process rights.”

Magnus-Stinson’s Dec. 19 ruling was an about-face from her earlier grant of summary judgment to the DOC defendants on Isby’s Eighth and 14th Amendment claims. The 7th Circuit Court of Appeals in May 2017 affirmed the lower court’s ruling on the Eighth Amendment question but reversed for trial on the due process claim.

Kelley Kelley

That’s when Dan Kelley and a team of his colleagues at Faegre Baker Daniels were appointed as counsel for Isby, and “striking testimony” from DOC caseworker Charles Dugan came out. According to Dugan’s deposition, the 30-day review process consisted of him simply changing the names and dates on a letter informing inmates that their restricted housing status would not be changed, without any investigation into the inmates’ behavior or records.

That deposition stood in stark contrast to an affidavit earlier submitted by defendant Beverly Gilmore, who said DOC caseworkers review inmate files and speak with other staffers to determine if prisoners can be returned to general population. But Kelley said DOC did not try to discredit Dugan, and other caseworkers agreed with his testimony.

Further, Dugan testified that Gilmore had trained him to conduct what the 7th Circuit described as “perfunctory” reviews. What’s more, Kelley said Isby went without a negative conduct report for at least two periods of four years, evidence that his behavior did not support continued segregation.

With Dugan’s testimony part of the record, Kelley said DOC switched its argument to an assertion that voluntary 90-day reviews, rather than the required 30-day reviews, were the critical reviews that must meet due process requirements. But Magnus-Stinson rejected the argument switch and found that the 30-day reviews did not meet the Hewitt standard.

As a remedy, Kelley’s team sought damages and asked the court to order DOC to follow its internal policy requiring legitimate reviews of inmates’ placement in restrictive housing. But Magnus-Stinson, expressing doubt as to whether the department would follow that order, instead ordered Isby’s release into the general population at Westville.

In response, the department proposed a plan by which Isby would be transferred to a general population unit at the New Castle Correctional Facility where he could participate in the Striving Toward a New Direction, or STAND, transitional program. Kelley declined to comment on the proposed plan to remove Isby from solitary confinement because it is still under review.

A DOC spokesman declined to comment on Isby’s case or the department’s administrative segregation practices, and the Indiana Attorney General’s Office, which represents DOC in the litigation, also declined to comment.

Mental health risks

Harris Harris

As a sociologist who has followed and assisted in Isby’s litigation, David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said he viewed Isby’s time in isolation as a “second sentence.” There have been times when Isby’s physical health deteriorated because of his isolation, Harris said, though he praised the inmate for staying focused on his legal fight.

It’s unusual for inmates in solitary confinement to maintain the mental strength Harris said is present in Isby. Indeed, Daniel Greenfield, a solitary confinement appellate litigation fellow with the MacArthur Justice Center at Northwestern University Pritzker School of Law, said research shows the opposite is usually true: that is, prolonged isolation causes or exacerbates mental illnesses.

Greenfield pointed to an amicus brief filed in a 1st Circuit Court of Appeals solitary confinement case, in which a group of psychologists and psychiatrists wrote about research demonstrating the potential psychological damage of prisoner isolation. The research argues that without “meaningful human contact” or “positive environmental exposure,” inmates in solitary can begin experiencing insomnia, depression, paranoia, hallucinations and/or rage, among other mental health problems. Additionally, the amici argued prolonged isolation can slow cognitive abilities.

Greenfield Greenfield

“Placing someone for more than a few hours or a few days in a tiny box does not do anyone any good,” Greenfield said. “I think almost certainly that it has a negative impact on that which it’s designed to improve, which is prison safety.”

While due process claims like Isby’s are common, Greenfield said it’s also common for segregated prisoners to raise Eighth Amendment claims arguing they are not receiving adequate mental health care. Despite that, he said prisons continue to isolate inmates for extended periods of time because solitary confinement is widely viewed as an effective means of controlling prison populations.

Reform efforts

The problem with that theory, Greenfield said, is that research now shows that isolating inmates as a punitive measure does little to improve prison safety. He pointed to another amicus brief in the same 1st Circuit case in which former corrections directors maintain that solitary can actually increase prison violence.

“Amici submit that prolonged isolation has proven dangerous and ineffective, whereas alternative prison management methods have successfully eliminated prolonged solitary confinement while decreasing prison violence,” the amici wrote in a November brief in Jwainus Perry v. Luis S. Spencer, et al., 16-2444.

Henegar Henegar

Jane Henegar, executive director of the American Civil Liberties Union of Indiana, noted courts have upheld the use of administrative segregation for smaller durations and specific, targeted reasons. But nationwide, Henegar said the ACLU has filed litigation challenging the perceived overuse and misuse of inmate isolation.

In Indiana, for example, the 2008 case of Indiana Protection and Advocacy Services Commission, et al. v. Commissioner, Indiana Department of Correction, 1:08-cv-01317, challenged the use of solitary as an Eighth Amendment violation. The result was a 2012 judgment in favor of the ACLU clients and a ruling that the plaintiffs were entitled to “the delivery of mental health care which is within the bounds of the Eighth Amendment.”

That ruling opened the door for the ACLU of Indiana to begin working with DOC on prison mental health reforms. The result, Henegar said, has been the development of new programming designed to provide inmates with the mental health services they need.

Similarly, in their amicus brief, the former corrections directors cite statistics showing that in Washington, Colorado and Mississippi — states where solitary confinement reforms have led to fewer prisoners serving time in isolation — assaults against prison staff fell by 40 to 50 percent and assaults against other prisoners fell by 50 to 70 percent. The difference, amici argue, is that prison directors in those states are training their employees and inmates to avoid behavior that could land an offender in solitary before that behavior occurs.

Greenfield said he has noticed in recent years a shift toward courts and prisons crediting research like that cited by amicus in the 1st Circuit case. Even so, Henegar said more work needs to be done to ensure inmates aren’t harmed by unnecessary segregation.

“We need to look at all aspects of that system, including the tendency to misuse and overuse solitary confinement,” she said.•

Editor's note: This story has been updated to reflect that David Harris is a sociologist.