Massachusetts legislators attempting a sweeping overhaul of the criminal justice system are grappling with one of the toughest questions in corrections: How long is too long for a prisoner — even one who has harmed a guard or a fellow inmate — to be punished with solitary confinement?
Under current law, prisoners at any state facility can be sentenced by corrections officials to up to 10 years in the state’s toughest solitary, the Departmental Disciplinary Unit in the Walpole prison, where they are housed in a 12-foot-by-7-foot cell and are entitled to five hours a week of outdoor recreation.
The Senate’s wide-ranging bill includes provisions that would mandate prisoners committed to that unit as punishment get a hearing every six months and be released to the general prison population unless they’re judged to still pose “an unacceptable risk” to other people. Currently, such reviews are not mandated by law and reassessments happen less frequently.
Advocates such as Leslie Walker of Prisoners’ Legal Services of Massachusetts say that’s a “great, hopeful step forward.” But the proposed changes, she said, don’t go nearly far enough to help those in solitary become well, or to release those who are no longer a threat to prison staff and other inmates. She says Massachusetts has fallen far behind other states on the issue.
Meanwhile, the Department of Correction says it has an obligation to protect inmates and correctional staff from the most violent and dangerous inmates, and uses punitive segregation as a last resort — for about 2 percent of its population.
The current average length of stay in the Departmental Disciplinary Unit at Walpole — solitary for men found to have raped another prisoner, tried to kill a guard, or committed other serious offenses such as attempting escape — is 28 months, officials say. And only six of the state’s more than 9,000 prisoners are currently serving 10-year stints there.
But Walker alleges the state solitary system, which includes the 124 men in the Departmental Disciplinary Unit and fewer than 100 others in other restrictive housing units for disciplinary reasons, is fundamentally flawed.
“To leave people who are no longer dangerous and to not treat them while they are dangerous to improve their behavior is irresponsible,” said Walker, who directs the nonprofit, which advocates on behalf of inmates. “There’s no evidence that shows this long-term punishment improves anyone.”
Walker is pressing for the bill to include language that would prohibit the Department of Correction from ever sentencing anyone to 10 years in solitary as punishment. As long as the 10 years is out there as a potential punishment, she said, it sets the standard — one that Walker says is different than in 47 other states.
There’s no way to imagine exactly what life in the Walpole solitary unit is like, she said.
“But if you have not a very large bathroom at home, and you walk in and lock the door, and live there for a number of years with the bathtub being your bed, that’s pretty much what it’s like,” she said in an interview. “It’s claustrophobic at best and torture at worst.”
Several phone and e-mail messages left on Monday and Tuesday with officials at the Massachusetts Correction Officers Federated Union, which represents state prison guards, were not returned.
Senator William N. Brownsberger, the Belmont Democrat who is sponsoring the sweeping justice overhaul legislation, said his language balances being able to punish and segregate dangerous inmates from other people with the aim of getting them well enough to return to the regular prison.
“A percentage of them, a relatively small percentage of them, are extremely bad dudes who are never going to see the light of day in any scenario,” he said. “But there are a bunch of them where we think we can manage their behavior in a better way, calm them down, tune them down from being angry at the world, and get them back to general population.”
Brownsberger said his bill includes a way to hold the Department of Correction accountable. It would mandate the state publish a report every three months that includes details of everyone in solitary with no names, but identifying numbers as well as their age, race, gender, length of term, and reason for commitment to solitary.
Without taking a position on the parts of the bill that would affect solitary confinement, officials in the administration of Governor Charlie Baker say the current system works pretty well.
The Department of Correction has “mental health units as segregation alternatives, and provides inmates hearings, mental health screenings, out-of-cell time, recreational, nutritional and other programming relative to their medical needs,” spokesman Felix Browne said in an e-mail.
Browne and other officials also noted that the department already conducts periodic reviews of those held in restrictive housing as punishment, and tries to release those who are ready before their sanction is up. After all, they say, it is to the benefit of inmates, prison staff, and the state to free up those solitary cells for the most dangerous prisoners.
Some prisoners are held separately from the general population for reasons other than punishment. Inmates who require protective custody may be held away from the majority of the prison’s other inmates for their own safety.
Brownsberger’s legislative language would mandate that those people have access to similar amenities and conditions as prisoners in the general population.
The Senate is expected this month to vote on the sweeping bill. The broader legislation would makes changes to everything from mandatory minimum sentences to when consensual sex is illegal between teens.
Some specifics of the bill, including how it would affect solitary confinement practices, may change in the coming days as senators massage the legal language before it comes up for a vote.
The House of Representatives is set to soon release its own criminal justice overhaul plan.
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