Hastings Constitutional Law Quarterly Volume 39 Article 1 Number 4 Summer 2012 1-1-2012 Perception Profiling & Prolonged Solitary Confinement Viewed through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, and Justice Becomes Legally Blind Angela A. Allen-Bell Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Angela A. Allen-Bell, Perception Profiling & Prolonged Solitary Confinement Viewed through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, and Justice Becomes Legally Blind, 39 Hastings Const. L.Q. 763 (2012). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol39/iss4/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Perception Profiling & Prolonged Solitary Confinement Viewed Through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, and Justice Becomes Legally Blind' by ANGELA A. ALLEN-BELL* Introduction Incarceration has crept its way into the mainstream of American society. It no longer conjures an emotional reaction. In fact, for 1. With much gratitude, the author acknowledges and thanks Southern University Law Center for funding this project through the award of a summer 2011 writing grant. For permission to reprint the article, please contact Angela A. Allen-Bell at [email protected]. * Assistant Professor of Legal Writing & Analysis, Southern University Law Center; J.D., Southern University Law Center, 1998. An immense expression of gratitude is extended to Attorney Julian Johnson, a 2011 graduate of the Southern University Law Center, for the invaluable insight he provided from the conceptualization stage through the infancy stage of this work, for his priceless research and editorial contribution, and for the countless exchanges that shaped this work. I gratefully acknowledge Ashlee Boswell, a third-year law student at Southern University Law Center, for her dedicated and capable research assistance. Further thanks is extended to John Lulich, a second-year law student at Southern University Law Center, for his creative thinking, phenomenal research contribution, his many thoughtful comments, his unwavering support of this work, and his committed attention to countless research requests and numerous calls for assistance. A special expression of appreciation is extended to Attorney Susan Kalmbach and Professors Alfreda Diamond and Okechukwu Oko for their review and critical analysis of this work and to Professor Evelyn Wilson, Herman Wallace (Angola 3 member) and Albert Woodfox (Angola 3 member) for their many insightful remarks. A genuine debt of gratitude is owed to the following persons for their general support of and assistance with the development of this work: Professors Andrea Armstrong, Steve Barbre and Prentice White; Attorneys Kacy Collins, Nicholas Trenticosta, Katie Schwartzmann; and Lori Palminitier, Tory Pegram, Emily Posner, Justin Roberts, Edvige Wilkerson (Librarian, Xavier University Library), Robert Wilkerson King (Angola 3 member), Chauntelle Wood, Checo Yancy, Lisa George, Justin Roberts, Sherrie Williams, Carlas Williams- Bertrand, Alvin T. Welch, Sr. and the Bell Family (David, Briana and Brooke). [763] 764 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 39:4 many populations, it is a predictable destination. For others, it is a fate easily justified. "Since the mid 1990s, the war on drugs, the war on gangs, the war on terror, 'zero tolerance' and sentencing policies such as 'three strikes and you're out[,]' 'mandatory minimum sentences[,]' and 'truth in sentencing' have all contributed to the dramatic increase in the number of people sent to prison in the United States and in the length of sentences they serve." 2 Simply put, incarceration has become an industry in the United States. "The United States incarcerates more people than any other country in the world, including countries that are much more heavily populated."3 "The United States now has five percent of the world's population, twenty-five percent of its prisoners, and probably the vast majority of prisoners who are in long-term solitary confinement." "The fastest- growing segment of most state budgets is corrections."' "[T]oday's prisons and jails are more dangerous because of the unpredictability of the inmate population, which is composed of a new and highly distilled group of inmates."6 "This population is also more alienated, more violent, less afraid of punishment, and more difficult to manage."' Because of this, "there has been a significant shift in the duties and priorities of wardens during the past two decades. One of the foremost changes is the increased attention toward safety and security, and this is a consequence of changing external and internal priorities."8 When making disciplinary and management determinations, prison officials have on their shoulders the enormous weight of maintaining order in the institution; protecting the public, the inmate population, and staff from harm and danger by predatory inmates; and respecting the constitutional rights of inmates, those prone to bad 2. Sharon Shalev, Inside a Supermax, 181 PRISON SERVICE J. 21,21 (2009), available at http://www.hmprisonservice.gov.uk/assets/documents/100043E5Inside-aSupermax.pdf. 3. LYNN S. BRANHAM & MICHAEL S. HAMDEN, CASES AND MATERIALS ON THE LAW AND POLICY OF SENTENCING AND CORRECTIONS 3 (8th ed. 2009). 4. Atul Gawande, Hellhole: The United States Holds Tens of Thousands of Inmates in Long-Term Solitary Confinement. Is this Torture?, THE NEW YORKER (Mar. 30, 2009), http://www.newyorker.com/reporting/2009/03/30/090330fa-fact-gawande. 5. Jess Maghan, Corrections Countdown: Prisonersat the Cusp of the 21st Century, in PRISON AND JAIL ADMINISTRATION: PRACTICE AND THEORY 199, 206 (Peter M. Carlson & Judith Simon Garrett eds., Aspen Publishers, Inc. 1999). 6. Id. at 201. 7. Id. 8. Rick Ruddell & Tommy Norris, The Changing Role of Wardens: A Focus on Safety and Security, CORRECTIONS TODAY, Oct. 2008, at 3, http://www.aca.org/ fileupload/177/ahaidar/Ruddell.pdf. Summer 2012] SUBSTANTIVE DUE PROCESS & SOLITARY CONFINEMENT 765 behavior, as well as those likely to be victimized. Much like parents who, by virtue of domestic intelligence and constant oversight, know of their child's tendencies and capabilities, prison administrators know the propensities of those in their care. This ability is part art and part skill and, admittedly, is a necessary part of institutional management. There is simply no way to remove the essential role of judgment in prison administration. And this is no call to do so. This Article does, however, challenge the arbitrariness often involved in deciding who is assigned to solitary confinement, the indefinite nature of many solitary confinement assignments, and the hollowness of the periodic review process afforded inmates who are subject to prolonged isolation.9 The absence of meaningful standards applicable to the periodic review process renders inmates vulnerable to the discretion of prison officials, some of whom cravenly seek to impress inmates with their authority and sense of importance. Both fairness and commonsense call for a change in the way we use isolation as a disciplinary and managerial tool in our prisons. In seeking to maintain order in prisons, prison officials must balance the necessary use of power with respect for inmates' constitutional rights. "[T]hough... rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime."o "Prisoners may also claim the protections of the Due Process 9. I recognize that, while the practice of isolation has been longstanding, nomenclature used to describe the practice has been ever changing. Today, many correctional facilities reject the use of the term solitary confinement in favor of administrative segregation, punitive segregation, disciplinary segregation, extended lockdown, closed-cell restriction, special housing unit, special management unit or intensive management unit. In this work, the terms solitary confinement, segregation and isolation are used interchangeably. These terms are used generically to refer to any of the various forms of segregation practices used in penal institutions where inmates are housed separately from the general population and involuntarily confined to their cells for nearly the entire day; interaction with other humans is nonexistent or severely limited; and meaningful programming is removed as a result of disciplinary or administrative action. This work does not extend to death row inmates who are held in isolation as a result of classification and/or sentencing. The constitutional considerations applicable to death row inmates are radically different from those advanced herein. For this reason, death row inmates, who are also segregated from the general population, are not addressed herein and this work should not be interpreted as having application to them. In this work, the terms long-term solitary confinement or prolonged isolation is intended