To appreciate this point, you might consider a house when its inhabitants are away and the property is left all alone. Inactivity and calm prevails. When the inhabitants return, activity follows. Some prison administrators delight when the occupants of their home are away and only the property is left in their immediate view. These administrators falsely assume all activity is disruptive activity. More importantly, these administrators dwell in a day gone by. Today, African Americans are no longer recognized as property. These administrators are actually guilty of creating the threat they say they fear.
A3N: With over 2.4 millions prisoners today, the US now has more total prisoners and a higher incarceration rate than any other country in the world (click here ). How does the use of prolonged solitary confinement fit into this human rights nightmare that is mass incarceration fueled by the criminalization of poverty? In this broader context, what role does it play?
AB: I alluded to the 13th Amendment in my earlier response. It is applicable here as well and it would be intellectually dishonest of me not to interject it into this discussion. A lodging facility is happier when you lodge for a prolonged period than they are when you lodge for a brief period. They are paid more for a longer stay than for a short stay. Such is the case with many institutions.
The 13th Amendment allows slavery or involuntary servitude when someone is incarcerated. If certain jurisdictions or corporations are paid for the amount of human cargo in their facility, then the longer the stay, the better. Inmates held in prolonged solitary confinement ensure maximum occupancy and they do not require the expenses related to compensating teachers or staff or expenditures for materials or supplies.
Once in solitary for a prolonged period, the average inmate will be robbed of the mental stamina to effectively challenge his stay. Even if the inmate could mount a challenge, it would be meaningless because, in most institutions, the review process one would employ to gain exodus from solitary confinement is constitutionally deficient. On this point, my article expresses: "A simulated process akin to a hearing, where formalities can be documented, but where no meaningful probing occurs, is unjust and unconstitutional. It amounts to nothing more than procedural automation in a legal assembly line where unfavorable reviews are mass-produced."
In the end, the beds remain full and the payments continue coming. Before you know it, more prisons get built and more beds need to be filled. Going back to my earlier point about how, as a society, we are not investigating the things that are reported, this would be another such case. Some elected officials and some media outlets suggest we need prisons in order to be safe. We innocently accept that.
A3N: Let's take a closer look at the title of your Hastings Constitutional Law Quarterly article. How have "prison officials become judges?"
AB: A judge is charged with the task of imposing sentences, not a prison administrator. When a prison administrator places an inmate in prolonged solitary confinement (often after the inmate has not committed an infraction while in custody), that inmate has an increased risk of mental decline and death. Taking this at face value, one might contend that a sentence (possibly a death sentence) has been handed down.
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