Montana legislature debuts bill prohibiting solitary confinement for minors, seriously mentally ill

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A bill introduced in the Montana House of Representatives this week would curb the use of isolation in state prisons. The Montana Solitary Confinement Reform Act (or House Bill 490) was introduced by Democrat Jenny Eck and would ban solitary confinement for people under the age of 18 and those with severe mental illness. It would also introduce due process and appeal measures for inmates facing solitary and require weekly mental health evaluations for isolated inmates.

Over much of the past decade, prisoners in Montana have endured anguish and abuse in the state’s isolation units. In 2012, Montana reached a settlement with the American Civil Liberties Union (ACLU) in the case of a mentally ill juvenile detainee named Raistlen Katka. Katka was placed in solitary confinement for damaging prison property when he was just 17. The lawsuit stated he was “so traumatized by his deplorable treatment in the Montana State Prison that he twice attempted to kill himself by biting through the skin on his wrist to puncture a vein.” Katka later explained to a judge, “My thought process was if I don’t die, at least I’ll get out of my cell for 30 seconds.”

In the Katka settlement, Montana agreed to limit the amount of time young prisoners could spend in solitary confinement to 72 hours without additional approval. The state agreed to improve its treatment of mentally ill inmates in isolation as well.

But the situation had hardly improved one year after Katka. In a letter sent to Montana state officials, the ACLU and Disability Rights Montana (DRM) detailed the findings of a December 2013 investigation into the conditions facing mentally ill inmates in solitary, where they found that medication was routinely withheld from inmates and some were deliberately left undiagnosed by medical staff. They discovered mentally ill prisoners were being locked in isolation for extended periods of time — sometimes for a full 24 hours without exercise. Many of them were still deprived of basic necessities like proper food, clothing, bedding and human contact.

By April 2014, DRM announced it was suing Montana for the “cruel and unusual punishment” of its mentally ill prisoners, arguing their treatment violated the Constitution.

If this year’s HB490 is enacted, Montana state prisons would be required to put safeguards in place to stem this seemingly-uninhibited flow of inmates into its isolation units. The Montana Department of Correction (MDOC) would be prohibited from placing inmates in long-term protective isolation against their will. (The bill defines “long-term isolation” as “a period that extends or is expected to extend for more than 14 consecutive days in a 30-day period”). The MDOC would also be banned from using solitary for ‘non-punitive […] purposes’ such as under-staffing, and any child under the age of 18, or any inmate with a ‘serious mental illness,’ would be exempted from isolation.

According to the bill, prisoners within one year of their release would no longer be subject to long-term confinement unless an administrator deemed them a threat to the safety of the facility and/or other inmates. For inmates who are in solitary confinement but are close enough to their release date that they are not expected to return to the general prison population, the bill calls for specialized re-entry programming to help them transition smoothly back to society.

HB490 also requires prison officials to exhaust all other administrative measures before subjecting inmates to long-term solitary confinement and replaces the admission process entirely. First, a mental health professional must conduct a comprehensive analysis of the inmate’s medical and mental health background, including their current health, risk of suicide or self-harm, and all documented past mental health history to determine whether they fall into Montana’s definition of “seriously mentally ill,” thereby exempting them from isolation. If not, a management or classification team (including a mental health professional) would then review disciplinary records from the past 30 days to determine if the inmate committed violent acts, sexual assault, or has attempted escape. The inmate would then be given the opportunity to have a hearing over their potential isolation; to see the evidence against them; to be notified of their rights and to appeal the decision. Only after this process is complete may an inmate be confined to long-term isolation.

The bill would also require that a mental health professional evaluate prisoners in solitary confinement at least once every seven days. The bill specifically mandates these visitations must be done in person — not through a cell door or glass wall. While it might seem like a minor detail, the absence of such a policy has been known to facilitate horrific violations of inmate civil rights in other prisons. If an isolated prisoner is found to be suffering from serious mental illness, the MDOC will have 48 hours to move them to housing or treatment deemed ‘more appropriate’ by the mental health professional on staff.

HB490 seeks to codify the conditions of confinement as well. Section 6.1 prohibits any inmate from being placed in long-term solitary confinement for more than 90 consecutive days. During that time, an inmate must not be deprived of “light, ventilation, regular meals, medical and mental health treatment, the opportunity to take care of personal hygiene, at least three showers per week, mail, religious observance, reading material, out-of-cell exercise at least 1 hour per week or at least one visitation per week.”

The bill also contains provisions for improved record keeping, training and oversight with regards to the use of solitary confinement. At bare minimum, the facility administrator must document how many inmates are in solitary, the reason for their isolation, whether they have mental illness and how many have been released directly back into society or a parole program. This information must be made publicly available upon request. The MDOC must also ensure that all staff and caseworkers receive adequate mental health training so they can identify signs of illness while on duty.

Finally, the MDOC would be required to review the status of all inmates currently in long-term solitary confinement within 90 days of HB490’s enactment, and determine if they are still eligible for isolation under the new rules. The MDOC would also have to ensure inmates who have been in solitary for over 30 days receive a hearing. Prison officials will be required to report this information to the legislature within 180 days of the bill’s enactment.

It’s fair to say that HB490 would be a significant improvement to the status-quo, even if it’s too early to gauge its support or likelihood of passage. It would plug several of the policy and process holes through which so many prisoners fall into isolation and endure abuse. At the very least, the bill calls attention to the shocking lack of policy safeguards in Montana today. But it doesn’t go far enough to protect inmates’ civil and human rights.

The United Nations has stated that “Indefinite and prolonged solitary confinement in excess of 15 days should be subject to an absolute prohibition [and] that some lasting mental damage is caused after a few days of social isolation.” They have concluded that solitary is tantamount to torture. While Montana’s 90 day limit is a welcomed improvement, it’s still six times longer than the duration we know to be harmful.

If Montana can’t muster the courage to ban solitary outright, the next best thing would be to increase the age limit to 21, when children are less vulnerable to the trauma isolation wreaks on their development. Montana should also work to divert mentally ill people into programs and treatments that help them instead of trying to accommodate them in its prisons.

Critics in Montana and elsewhere claim that such restrictions on the use of solitary confinement put prison personnel at risk, and that guards should have more leeway in isolating whomever, whenever and for however long they want. But the truth is that it is the rampant use of solitary confinement itself that is detrimental to the security and safety inside prisons, for guards and inmates alike. Isolation has such a severe impact on prisoner mental health that it actually intensifies symptoms and can introduce disorders and complications in otherwise healthy people.

There is no way to build a more humane form of solitary, and for that reason, solitary “reform” will always be doomed to fall short of what’s right and just. But passing this bill would at least be a positive step toward reducing the state’s reliance on such harmful tactics.

Brian Sonenstein
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Brian Sonenstein

Brian Sonenstein is a Berkeley-based writer, activist and former Campaign Director and Associate Publisher for Firedoglake.com. Learn more at http://briansonenstein.com
Brian Sonenstein
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