The New York Times editorial titled Chicago’s Grim Era of Police Torture offers a window into a “grisly period from the 1970s to the 1990s when the Chicago Police Department’s infamous torture crew rounded up more than 100 African-American men” who were brutally tortured until they confessed.
Prof. Michael B. Mushlin, of Pace University’s Elisabeth Haub School of Law, is a nationally renown expert on the prison system in the United States. He has authored a four volume treatise titled Rights of Prisoners, written numerous articles on the issues of prisoners’ rights and prison oversight, and testified in the NYS Assembly Standing Committee on Correction in support of a comprehensive prison reform in New York State.
Most recently he spoke with NowThis News about the state of affairs in US prisons in a clip titled In Some Prisons, Guard Break the Law Instead of Upholding, commenting on solitary confinement, brutality, physical abuse, contraband and corruption in U.S. prisons. To find out more about the life behind bars tune in on Thursdays at 10/9 central to A&E for a rel-life series titled 60 Days In.
New York State Agrees to Overhaul Solitary Confinement in Prisons by Michael Schwartz & Michael Winerip in today’s New York Times.
We are very excited to feature Prof. Michael B. Mushlin’s latest law review article in which he compares Kafka’s fictitious world of punishment to the current state of solitary confinement in the United States. Prof. Mushlin has extensive experience in the field of prisoner’s rights work and specific issues such as solitary confinement.
POST WRITTEN BY: Erica Danielsen (’16), J.D. Pace Law School
Franz Kafka lived in the Austria-Hungarian empire, in what is now Czech Republic, and wrote fiction stories in German during the 20th century. In 1914 Kafka wrote In the Penal Colony, a story describing a torture and execution device used in a mythical prison’s operation system. The machine would carve the sentence of a condemned prisoner on his skin before killing him over the course of twelve hours. The use of this machine only came to an end when a “Traveler,” an outsider invited to the penal colony, condemned its use by expressing, “I am opposed to this procedure.” Without the Traveler having been allowed to enter and observe what occurred in the penal colony no change to the system would have taken place.
For the 100th Anniversary of Kafka’s work, Prof. Muslin wrote, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons. The article, which is published in the Oregon Law Review, compares the use of the penal colony’s machine to the current use of solitary confinement in American prisons. Both the penal colony’s machine and solitary confinement inflict great psychological and physical pain on the people subjected to it. Additionally, both are seen as essential to the operation of the prison system yet neither would see change without an outside perspective into its use.
This article first recounts Kafka’s story In the Penal Colony and describes how Kafka’s professional life as an attorney might have influenced his story. It then provides a description of the American prison system focusing on two important aspects: the massive use of solitary confinement and the lack of meaningful oversight. The article is then brought together with a discussion of how Kafka’s profound insights, so powerfully set out in In the Penal Colony, can help society today understand why prison doors must be opened to outside scrutiny and why the rampant use of solitary confinement in the United States must end just as the penal colony’s machine was put to an end.
- Michael B. Mushlin, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons, 93 Or. L. Rev. 571 (2015).
- Michael B. Mushlin, Kafka and the Debate Over Solitary Confinement, Solitary Watch (July 9, 2015).
Criminal Justice Society at Pace hosted a Spring 2014 event dedicated to discussing solitary confinement. The event was well attended leaving the attendees with a lot to think about. Our first year students who attended this event shared some of their thoughts with us below.
POST WRITTEN BY: Alexandria Capaccio (’16), Ashley Kersting (’16), and Jake B. Sher (’16)
Loneliness is very much like pain. It has evolved over time to change our behavior so that we reconnect with others, which is necessary for our survival. … Being ignored is so painful it’s better to be treated badly by someone than ignored….
John Cacioppo, Social Neuroscientist, City of Chicago
These words from National Geographic’s “Lonely Prisoners” Program served as the opening gambit for The Pace Criminal Justice Society’s discussion on solitary confinement, entitled Thinking Outside the Box. The panel brought attention to the serious issues of solitary confinement in prisons. Pace’s Professor Michael B. Mushlin engaged three panelists: Sarah Kerr, Staff Attorney in the Prisoners’ Rights Project at The Legal Aid Society; Five Mualimm-ak, a solitary confinement victim and prison reform activist; and Leah Gitter, whose family member with mental illness has been held in solitary confinement at a number of prisons including Rikers Island. The panelists drove home the central issue that the current method of solitary confinement is not working; it is both inhumane and counter-productive.
Over 80,000 prisoners in this country are living 23 hour days alone in their cells deprived of any meaningful stimulation. The panelists referred to these extreme conditions as “torture.” A former inmate, Five changed his first name to memorialize the five of his twelve years of incarceration that he spent in solitary confinement. Five was placed in solitary confinement not as a punishment for the crime he committed or any violent behavior, but instead for minor disciplinary violations he allegedly committed while incarcerated.
Five explained that even minor disciplinary violations, such as possessing too many pencils or t-shirts, frequently subject a prisoner to an indefinite period of time in the “box.” There are no governing time limitations or regulations on the time spent in the “box,” instead the decision about the duration of this type of confinement is left to the discretion of prison officials.
Collectively, the panel agreed with the goal of the prison system to protect, reform and rehabilitate inmates, but took the position that subjecting mentally ill prisoners to solitary confinement does not further those goals. Instead, solitary confinement is unnecessary and inflicts further psychological damage on inmates.
The panelists stressed that contrary to the common belief that solitary confinement is used to protect other prisoners from other dangerous, violent, or gang affiliated members, the majority of prisoners spending time in the “box” are there due to the prison’s inability to deal with the inmates’ mental and physical disabilities. These harsh living conditions remove inmates from human sensory stimulation and contact; and as such, they are directly attributable to the high recidivism rates of inmates subjected to such confinement.
The public’s attention on issues of solitary confinement tends to focus on the question of whether prisoners are serving time because they are guilty. This focus, however, obfuscates the actual problem that solitary confinement poses to the liberty of prisoners and law-abiding citizens alike. In the seminal case on the issue, the Supreme Court held: “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). New York’s Appellate Division has held Wolff to mean that inmates charged with violating disciplinary hearings are entitled to minimal due process protections that do not include the right to counsel or to confront or cross-examine witnesses. Laureano v. Kuhlmann, 550 N.E.2d 437, 439 (N.Y. 1990) (emphasis added). Courts are divided as to the evidentiary standard used for disciplinary proceedings between “some evidence” and “substantial evidence” – both standards well below the preponderance of the evidence standard used in civil litigation (to say nothing of “beyond a reasonable doubt”).
American citizens who retain their “full panoply of rights” would never tolerate the loose evidentiary standard that is used when determining whether an inmate should be placed in solitary confinement.
Perhaps a better way of considering the problem revolves around Professor Mushlin’s haunting statement that some former victims of solitary confinement may be – or are – our neighbors; they are either released after their prison terms have ended, as Five was, or worse, they are exonerated innocents. They are our fellow citizens’ cousins, friends, spouses, or parents. If we would not tolerate the trampling of our own rights under the Fourteenth and Fifth Amendments, we should not tolerate theirs, either; the slope is slippery, and we are much closer to their plight than we would prefer to believe.