Lawmakers to consider more limits on solitary confinement in prisons and jails

Proposal in upcoming session would reduce time a person can be in solitary, fix gaps in reporting practice and expand restrictions on use of the practice

By: - December 8, 2022 4:33 am
Detail of the New Mexico Corrections Department logo painted on a wall inside the Western New Mexico Correctional Facility.

Detail of the New Mexico Corrections Department logo painted on a wall inside the Western New Mexico Correctional Facility. (Photo by Austin Fisher / Source NM)

New Mexico prison officials use solitary confinement in arbitrary ways, even in cases where the incarcerated person’s only alleged violation is mouthing off to a prison guard, lawmakers heard Wednesday.

“It doesn’t necessarily require any real threat,” said Barron Jones, senior policy strategist with the American Civil Liberties Union of New Mexico. “It’s used arbitrarily to manage populations.”

Out of the about 5,000 people currently incarcerated in New Mexico prisons, 95% will return to their communities, Jones told the Courts, Corrections and Justice Committee on Wednesday.

Solitary can make some incarcerated people more anti-social, and programming like substance use disorder treatment or education would help them reintegrate into society, he said.

Despite what Corrections Department officials say, “there is very little decent programming going on in those facilities, especially for folks housed in solitary confinement,” Jones said.

Sen. Antoinette Sedillo Lopez (D-Albuquerque) said if prison officials want to change incarcerated people’s behavior, they need consistent rules. Jones said treating incarcerated people humanely would probably stop the mouthing off to guards in the first place.

“Treating folks with dignity, providing them with resources to better themselves, and educational opportunities would also go a long way to curbing and ending the need for solitary confinement in our state,” Jones said.

2019 attempt at reform

The Restricted Housing Act, signed into state law in 2019, put some limits on when and how prisons can place people into solitary.

The law prohibits prison officials from putting people incarcerated in a private or state run facility in solitary confinement if they are under the age of 18, are pregnant, or are diagnosed as mentally ill.

It still allows solitary during the first five days when a person labeled mentally ill is brought into a prison. Jones said this five-day exception is not good public policy.

He pointed to a recent story in the Albuquerque Journal about people dying from not getting drug detox in the largest jail in the state, the Metropolitan Detention Center outside of Albuquerque.

Treating folks with dignity, providing them with resources to better themselves, and educational opportunities would also go a long way to curbing and ending the need for solitary confinement in our state.

– Barron Jones, ACLU of New Mexico

“I don’t see how this five-day prohibition will help them much more,” he said. “I’ve been in prison before, I’ve also been in county jail numerous times, detoxing. Being in the cell, by myself, while I was experiencing those pains, would not have meant anything to me. Just bring me some electrolytes so I won’t die from dehydration, or the complications of it.”

When the Act was introduced, the plan was for a “cultural shift” among prison guards, so they would gain the skills to put the new solitary law into practice, said Sen. Antonio “Moe” Maestas (D-Albuquerque).

That culture shift has not happened, Jones said. We’re probably seeing fewer people in solitary, he said, but these days it’s just being labeled differently, like placing a person in the Department’s “Predatory Behavior Management Program,” for example.

“Think about this: you have an individual who did whatever they did, they broke the law, ended up in prison, and now you’re putting them in a special unit, calling them a ‘predator,’” Jones said. “Think about what that does to their psyche.”

That program is also very arbitrary, he added. Solitary is still prison guards’ “main way of dealing with what I would call adverse populations,” he said.

“I think the culture was just too strong in the other way,” Jones said. “It’s still the us versus them mentality. As long as that continues, we’re always gonna have this as a first-line result to deal with folks who may not be behaving as best they should.”

Proposed changes

Advocates and lawmakers are proposing further changes to the Act. Maestas and others will introduce the bill in the upcoming legislative session.

The current proposal would:

  • Change the legal definition of “restrictive housing” from 22 hours per day to 17 hours per day.
  • Prohibit state prisons from putting people under the age of 21 or over the age of 55 into solitary.
  • Prohibit state prisons from putting people diagnosed with mental illnesses from being put into solitary, ending the five-day rule.
  • Institute the Nelson Mandela Rules, the minimum standards for the treatment of prisoners adopted by the United Nations, which would prohibit state prison guards from putting someone in solitary for more than two weeks at a time, and no more than 90 days per year.
  • Prohibit guards in local jails from putting people in solitary during the first three days of their time there.

Jones said there have been countless times at MDC where people held in solitary have died by suicide. Going to jail can be a shock, especially for young people, he said.

Sedillo Lopez said the proposed changes are “well-reasoned.”

Lack of transparency

The proposal also would strengthen the reporting requirements in the Act. Neither the Corrections Department nor local jails are reporting who and how long they are putting people in solitary, Jones said.

University of New Mexico researchers found prisons were holding more people in solitary than they were reporting.

The law requires all state prison and local jails to report the age, race, and gender of everyone in solitary at the time the report is published. The Corrections Department is not reporting the data by facility, Jones said, and is instead aggregating the data across the entire prison system. The Department is not actually naming who they are putting in solitary and why, he said.

People in NM prisons often held at the wrong security level, report shows

The first report Corrections produced in October 2019 after the law went into effect was very robust in describing the exact reasons why each person was placed in solitary, he said. But the most recent report only gives two reasons for putting a person in solitary: “pending transfer,” and “threat to security.”

Maestas said the Corrections Department puts the reports online, but they are in PDF format, and are not interactive.

The Corrections Department has several “special management populations” of incarcerated people who are subject to solitary called “protective custody,” but it is not clear if they are being counted in the reports, Jones said.

Instead, prison officials could try tracking who has conflict with whom, and keep them away from each other to try to prevent that violence, Jones said.

What about abolition?

Rep. Patricia Roybal Caballero (D-Albuquerque) asked what it would take to entirely abolish the practice in New Mexico.

“I would say we go for the whole shebang and just get rid of solitary confinement, period,” Roybal Caballero said.

Jones said the proposed limit of 17 hours per day would be a step toward abolition.

“I agree with you,” he said. “Let’s get rid of it altogether.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.