Thomas Silverstein – Official Website

Solitary Survivor

#5 February 27, 2013 Amicus Brief…

NO. 12–1450
IN THE
United States Court of Appeals
FOR THE TENTH CIRCUIT
THOMAS SILVERSTEIN,
Plaintiff-Appellant,
— v. —
FEDERAL BUREAU OF PRISONS, et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE
IN SUPPORT OF APPELLANT AND REVERSAL
Michael W. Martin, Esq.
James A. Cohen, Esq.
LINCOLN SQUARE LEGAL SERVICES, INC.
FORDHAM UNIVERSITY SCHOOL OF LAW
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
February 27, 2013 Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 1
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MOTION FOR LEAVE TO FILE
Pursuant to Federal Rules of Appellate Procedure 27 and 29(a) and Tenth Circuit
Rule 27.3, leading mental health professionals and organizations request leave to file the
accompanying amicus curiae brief in support of the Plaintiff-Appellant, Thomas
Silverstein. Plaintiff-Appellant consents to the filing of the brief and to the motion. The
Defendant-Appellee, Federal Bureau of Prisons, does not consent to amici’s participation,
but does not oppose our motion for leave to file the brief.
I. AUTHORITY TO FILE
We file this motion pursuant to Fed. R. App. P. 29(b). Motions under Rule 29(b)
must state the movant’s interest and “the reason why an amicus brief is desirable and why
the matters asserted are relevant to the disposition of the case.” Fed. R. App. P. 29(b).
II. IDENTITY OF AMICI CURIAE
Amici include: (1) psychiatrists and psychologists who have dedicated their careers
to studying and documenting the mental health of inmates across various prison facilities,
including supermax prisons and segregation units; and (2) mental health professional
organizations whose efforts are directed toward improving the mental health of inmates,
including those in solitary confinement.
The Association of Black Psychologists is focused on influencing and affecting
social change and developing programs whereby Black psychologists can assist in
solving problems of Black communities and other ethnic groups.
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Coalition for an Ethical Psychology is a group of psychologists that actively
opposes the involvement of health professionals in state-supported abuse with a national
security rationale, including solitary confinement.
Mental Health America is a national advocacy organization dedicated to
promoting mental health and achieving victory over mental illnesses and addictions
through advocacy, education, research, and service.
The Mental Health Project (MHP) of the Urban Justice Center is dedicated to
enforcing the rights of low-income New Yorkers with mental illness. MHP has long been
involved in efforts to end solitary confinement in prisons.
The National Alliance on Mental Illness (NAMI) is the nation’s largest grassroots
organization dedicated to ameliorating the lives of Americans affected by serious mental
illnesses. NAMI has a long history of advocacy on criminal justice issues and is
particularly concerned about the excessive use of prolonged solitary confinement on
inmates with serious mental illnesses and the long-term negative effects of these practices
on such individuals.
Physicians for Human Rights is an independent non-profit organization that uses
medicine and science to stop mass atrocities and severe human rights violations against
individuals.
Psychologists for Social Responsibility is an independent non-profit organization
of psychologists and students that applies psychological knowledge to promote peace and
social justice, including efforts to end solitary confinement.
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Stanley L. Brodsky, Ph.D., is a Professor of Psychology at the University of
Alabama. He has worked as Chief of Psychology at the United States Disciplinary
Barracks in Fort Leavenworth, Kansas, inspected solitary confinement facilities in 8
states as part of his clinical-forensic work, and conducts research and clinical assessment
interviews for prisoners in a variety of isolation conditions.
Carl Clements, Ph.D., is a Professor of Psychology at the University of Alabama.
He has written extensively on correctional psychology for 40 years and has inspected
dozens of prisons in the United States regarding the effects of overcrowding, offender
classification procedures, and the mental health needs of prisoners.
Keith R. Curry, Ph.D., is a clinical psychologist who has over 20 years of
experience evaluating conditions of confinement and its effects on mentally ill inmates.
Carl Fulwiler, M.D., Ph.D., is an Associate Professor of Psychiatry at the
University of Massachusetts Medical School. He has extensive experience with the
mental health effects of isolated confinement, having interviewed over 200 inmates in
over a dozen Segregated Housing Units.
Rafael Art. Javier, Ph.D., is the Director of the Post-Graduate Professional
Program and Professor of Psychology at St. John’s University. He has presented at
conferences and published extensively on ethnical and cultural issues in psychoanalytic
theories and practice, including on issues of violence and its impact on general cognitive
and emotional functioning.
Allen Keller, M.D., is an Associate Professor of Medicine at New York University
School of Medicine and the Director of the Bellevue/NYU Program for Survivors of
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 4
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Torture. Dr. Keller’s scholarly work and research has included examining the impact of
prison conditions and access to health care on prisoner health.
Terry A. Kupers, M.D., M.S.P., is Institute Professor at The Wright Institute. He
provides expert testimony as well as consultation and staff training regarding the
psychological effects of prison conditions, including isolated confinement in
supermaximum security units, the quality of correctional mental health care, and the
effects of sexual abuse in correctional settings. Dr. Kupers has published extensively on
prisoners’ mental health.
David Lovell, Ph.D., M.S.W., is Research Associate Professor Emeritus at the
University of Washington. Professor Lovell and his colleagues conducted systematic
interviews with inmates and staff in long-term solitary confinement units, along with
reviews of prison records and clinical status.
Mona Lynch, Ph.D., is a Professor and Vice-Chair of the Department of
Criminology, Law & Society at the University of California, Irvine. Trained as a social
psychologist, her research focuses on criminal sentencing and punishment.
Katherine Porterfield, Ph.D., is a Clinical Instructor of Psychiatry at New York
University School of Medicine and a Staff Psychologist at Bellevue/NYU Program for
Survivors of Torture. Dr. Porterfield has worked as a clinical evaluator on several cases
of young people held in detention at Guantanamo Bay and frequently consults with
attorneys handling cases involving torture, trauma, and maltreatment.
Keramet Reiter, Ph.D., J.D., M.A., is an Assistant Professor at the University of
California, Irvine in the Department of Criminology, Law & Society and at the School of
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 5
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Law. She is an expert in corrections, punishment, and criminal law, especially the history
and uses of solitary confinement.
Peter Scharff Smith, Ph.D., is a Senior Research Fellow at the Danish Institute for
Human Rights in Copenhagen. During the past 10 years, his research has focused on
prisons and human rights, specifically the use and effects of solitary confinement in
prisons internationally and in Denmark.
Hans Toch, Ph.D., is Distinguished Professor Emeritus of Criminal Justice at the
University at Albany, State University of New York. He has served as a consultant to a
number of correctional systems in the United States and abroad, and has received many
awards for distinguished contributions to criminology and penology.
Patricia A. Zapf, Ph.D., is a Professor in the Department of Psychology at John
Jay College of Criminal Justice, The City University of New York. She has conducted
over 2,500 forensic evaluations in both the United States and Canada and has served as
an expert witness in a number of cases, including the prosecution of José Padilla.
III. INTEREST OF AMICI CURIAE
The issue before this Court is whether the District Court properly awarded
summary judgment in this action. As amici curiae, in our individual capacity or as groups
representing mental health professionals, we are concerned about the substantial risk of
serious psychological harm that 30 years of solitary confinement presents because of the
existing medical research on the matter. This case also has implications extending far
beyond the facts before the Court, because the District Court made a potentially far-
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reaching decision regarding the constitutionality of 30 years of solitary confinement.
These factors compel us to present our views on this matter.
IV. FILING AMICI CURIAE’S BRIEF WILL SERVE THE COURT’S
INTEREST IN THE RESOLUTION OF THE ISSUES RAISED
Amici curiae move for leave to file this amicus curiae brief in order to
demonstrate to the Court that the October 3, 2011 order of the District Court should be
reversed. Relying on their professional expertise, amici curiae’s brief brings to light the
scientific evidence suggesting that 30 years of solitary confinement poses a substantial
risk of serious harm, and thereby aids the Court in its determination.
For the reasons highlighted below, this brief is desirable because of the unique
perspective provided and is directly relevant to the Court’s ultimate determination, as
required by Fed. R. App. P. 29(b)(2).
Whereas Appellant’s brief focuses on the harm experienced by Thomas Silverstein
over the course of 30 years and counting of solitary confinement, in the brief tendered by
this motion, amici address the issue from a psychological perspective. Specifically, we
emphasize the substantial psychological research literature that indicates the harms posed
by solitary confinement. As experts in psychiatry and psychology, we are positioned to
discuss and offer insight into potential mental harms of solitary confinement, and to
evaluate the state of current research. Therefore, submission of this brief is desirable.
Based on our assessment of existing research and our own clinical experiences
with inmates in solitary confinement, we express skepticism about a finding that no
reasonable trier of fact could find that 30 years of solitary confinement poses a substantial
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risk of serious psychological harm. Although we have not evaluated Appellant, our
experience and research suggest a high incidence of psychological distress of inmates in
solitary confinement, and a documented pattern of symptoms. Together, these facts
provide a sufficient basis for our conclusion that summary judgment was improperly
awarded because a reasonable trier of fact could find that 30 years of solitary
confinement poses a substantial risk of serious psychological harm. Therefore, this case
should be remanded to the District Court.
CONCLUSION
For the foregoing reasons, movant amici respectfully requests leave to file the
accompanying amicus curiae brief.
Respectfully Submitted,
Dated: February 27, 2013
By:
Michael W. Martin, Esq.
s/ Michael W. Martin
mwmartin@lsls.fordham.edu
James A. Cohen, Esq.
s/ James A. Cohen
jcohen@lsls.fordham.edu
Lincoln Square Legal Services, Inc.
Fordham University School of Law
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 8
NO. 12–1450
IN THE
United States Court of Appeals
FOR THE TENTH CIRCUIT
THOMAS SILVERSTEIN,
Plaintiff-Appellant,
— v. —
FEDERAL BUREAU OF PRISONS, et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
PROPOSED BRIEF OF AMICI CURIAE
Association of Black Psychologists, Coalition for an Ethical Psychology, Mental
Health America, The Mental Health Project of the Urban Justice Center, National
Alliance on Mental Illness, Physicians for Human Rights, Psychologists for Social
Responsibility, Stanley L. Brodsky, Ph.D., Carl Clements, Ph.D., Keith R. Curry,
Ph.D., Carl Fulwiler, M.D., Ph.D., Rafael Art. Javier, Ph.D, Allen Keller, M.D.,
Terry A. Kupers, M.D., M.S.P., David Lovell, Ph.D., M.S.W., Mona Lynch, Ph.D.,
Katherine Porterfield, Ph.D., Keramet Reiter, Ph.D., J.D., M.A., Peter Scharff
Smith, Ph.D., Hans Toch, Ph.D., Patricia A. Zapf, Ph.D.
IN SUPPORT OF APPELLANT AND REVERSAL
Michael W. Martin, Esq.
James A. Cohen, Esq.
LINCOLN SQUARE LEGAL SERVICES, INC.
FORDHAM UNIVERSITY SCHOOL OF LAW
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
February 27, 2013 Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 9
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CORPORATE DISCLOSURE STATEMENT
The amici curiae are individuals and non-profit corporations. Pursuant to Federal
Rules of Appellate Procedure 26.1 and 29(c), none of the amici curiae has a parent
corporation or publicly held corporation that owns 10% or more of its stock.
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 10
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ………………………………………………………i
TABLE OF AUTHORITIES……………………………………………………………………………….iii
STATEMENT OF INTEREST ……………………………………………………………………………. 1
INTRODUCTION………………………………………………………………………………………………. 3
ARGUMENT ……………………………………………………………………………………………………… 4
I.Methodological Constraints to Studying 30 Years of Solitary Confinement
Compel the Consideration of Existing Research …………………………………………….. 4
A. Background: Conditions of Solitary Confinement ………………………………………….. 4
B. Permanent Methodological Limitations to Studying 30 Years of Solitary
Confinement Compel the Consideration of Existing Research………………………….. 5
II. Current Research Raises Concern for the Substantial Risk of Serious
Psychological Harm Posed by 30 Years of Solitary Confinement …………………. 8
A. The American Psychiatric Association’s Benchmark for Prolonged Solitary
Confinement is Well Below 30 Years…………………………………………………………….. 8
B. The Incidence of Psychological Distress Suggests a Correlation Between Solitary
Confinement and Mental Health ……………………………………………………………………. 9
C. Empirical Research Reports a Pattern of Symptoms Within the Solitary
Confinement Population……………………………………………………………………………… 11
CONCLUSION …………………………………………………………………………………………………. 15
CERTIFICATE OF COMPLIANCE…………………………………………………………………. 17
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS … 18
ENTRY OF APPEARANCE AND CERTIFICATE OF INTERESTED
PARTIES…………………………..………………………………………………..…..19
CERTIFICATE OF SERVICE…………………………………..……………………..21
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TABLE OF AUTHORITIES
Page(s)
OTHER AUTHORITIES
SASHA ABRAMSKY & JAMIE FELLNER, HUMAN RIGHTS WATCH, ILL-EQUIPPED:
U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS (2003)…………………………..9
American Psychiatric Association, Position Statement on Segregation of Prisoners
with Mental Illness (Dec. 2012)………………………………………………………3, 4, 8
Henrik Steen Andersen et al., A Longitudinal Study of Prisoners on Remand:
Repeated Measures of Psychopathology in the Initial Phase of Solitary
Versus Non-Solitary Confinement, 26 INT’L J. L. & PSYCHIATRY 165 (2003)…….5, 12, 14
DIANA ARIAS & CHRISTIAN OTTO, NAT’L AERONAUTICS & SPACE ADMIN.,
DEFINING THE SCOPE OF SENSORY DEPRIVATION FOR LONG DURATION SPACE
MISSIONS (2011)………………………………………………………………………14–15
ALLEN J. BECK & LAURA M.MARUSCHAK, U.S. DEP’T OF JUSTICE,MENTAL HEALTH
TREATMENT IN STATE PRISONS, 2000 (2001)……………………………………………..9
Stanley L. Brodsky & Forrest R. Scogin, Inmates in Protective Custody: First Data on
Emotional Effects, 1 FORENSIC REPS. 267 (1988)………………………………..…12– 14
CHARLES A. BROWNFIELD, ISOLATION: CLINICAL AND EXPERIMENTAL
APPROACHES (1965)……………………………………………….……………………..14
CAL. DEP’T OF CORRECTIONS & REHAB.,MONTHLY REPORT OF POPULATION
AS OF MIDNIGHT DECEMBER 31, 2005 (2006)……………………………………………11
E. ANN CARSON &WILLIAM SABOL, U.S. DEP’T OF JUSTICE, PRISONERS
IN 2011 (2012)……………………………………………………………………………..9
Kristin Cloyes et al., Assessment of Psychological Impairment in a Supermaximum
Security Sample, 33 CRIM. JUST. & BEHAV. 760 (2006)…………………………………………..5
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CHARLIE HORTON COOLEY, HUMAN NATURE AND THE SOCIAL ORDER (1902)..………..15
CORRECTIONAL ASS’N OF N.Y.,MENTAL HEALTH IN THE HOUSE OF CORRECTIONS
(2004)…………………………………………………………………………………………….10
Leon Festinger, A Theory of Social Comparison Processes, 7 HUMAN RELATIONS
327 (1954)……………………………………………………………..…………………15
Paul Gendreau et al., Changes in EEG Alpha Frequency and Evoked Response
Latency During Solitary Confinement, 79 J. ABNORMAL PSYCHOL. 5459 (1972)……5, 13
Stuart Grassian, Psychological Effects of Solitary Confinement, 14 AM. J. PSYCHIATRY
1450 (1983)……………………………………………………………………..……12–13
Stuart Grassian & Terry Kupers, The Colorado Study vs. the Reality of Supermax
Confinement, 13 CORRECTIONAL MENTAL HEALTH REP. 1 (2011)……………………….6
E.K. Eric Gunderson, Emotional Symptoms in Extremely Isolated Groups, 9 ARCHIVES
GEN. PSYCHIATRY 362 (1963)……………………………………………………..…….14
Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 CRIME & DELINQUENCY 124 (2003)………………………………12–13
Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological
Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC.
CHANGE 477 (1997)……………………………………………………………………6–7
Harry Harlow et al., TOTAL SOCIAL ISOLATION IN MONKEYS, 54 PROCEEDINGS NAT’L
ACADEMY SCIENCE 90 (1965)………………………………………………………..….15
LINDSAY M. HAYES &JOSEPH R. ROWAN, NATIONAL STUDY OF JAIL SUICIDES:
SEVEN YEARS LATER, Nat’l Ctr. on Insts. & Alternatives (1988)…………………………10
Sheilagh Hodkins & Gilles Côté, The Mental Health of Penitentiary Inmates in
Isolation, 33 CAN. J. CRIMINOLOGY 175 (1991)……………………..…………5, 9, 12, 14
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MICHAEL JACKSON, PRISONERS OF ISOLATION: SOLITARY CONFINEMENT IN
CANADA (1983)………………………………………………………………….……….12
Richard Korn, Follow-Up Report on the Effects of Confinement in the High Security
Unit at Lexington, 15 SOC. JUST. 8 (1988)……………………………………………….12
F.P. Kosmolinsky & Z.D. Shchcirbina, Sensory Deprivation in Space Flight
(1970)……………………………………………………………………………….……15
George Herbert Mead, The Genesis of the Self and Social Control, 35 INT’L J. ETHICS
251 (1925)……………………………………………………………………………….15
JUAN MENDEZ, UNITED NATIONS SPECIAL RAPPORTEUR ON TORTURE AND CRUEL,
INHUMANE, AND DEGRADING TREATMENT, TORTURE AND OTHER CRUEL, INHUMAN
OR DEGRADING TREATMENT OR PUNISHMENT (2011)………………………………3, 4, 8
Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness
in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD. PSYCHIATRY
L. 104 (2010)…………………………………………………………………4–5, 9–10, 13
Holly A. Miller, Reexamining Psychological Distress in the Current Conditions of
Segregation, 1 J. CORRECTIONAL HEALTH CARE 3 (1994)…………………………….5, 9
Holly A. Miller & Glenn Young, Prison Segregation: Administrative Remedy or Mental
Health Problem?, 7 CRIM. BEHAVIOUR &MENTAL HEALTH 85 (1997)…………………13
Thomas I. Myers et al., U.S. Army Leadership Human Research Unit, Experimental
Assessment of a Limited Sensory and Social Environment: Summary Results of the
HumRRO Program (1962)…………………………………………………………….…14
TOM O’DONOGHUE &KEITH PUNCH, QUALITATIVE EDUCATIONAL RESEARCH IN
ACTION: DOING AND REFLECTING (2003)…………………………………………………7
Maureen L. O’Keefe, Administrative Segregation for Mentally Ill Inmates, 45 J.
OFFENDER REHABILITATION 149 (2007)…………………………………………….5–6, 9
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MAUREEN L. O’KEEFE ET AL., ONE YEAR LONGITUDINAL STUDY OF THE
PSYCHOLOGICAL EFFECTS OF ADMINISTRATIVE SEGREGATION, Colo.: Colo. Dep’t
of Corrections (2010)…………………………………………………………….………..6
Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety
Consequences: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 13
(June 19, 2012) (testimony of Charles E. Samuels, Jr., Dir., Fed. Bureau of
Prisons, U.S. Dep’t of Justice)………………………………………………………3, 8, 11
Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety
Consequences: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 13
(June 19, 2012) (written statement of Charles E. Samuels, Jr., Dir., Fed. Bureau
of Prisons, U.S. Dep’t of Justice)……………………………………………………………… 4, 5
Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety
Consequences: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 13
(June 19, 2012) (written statement of Christopher Epps, Comm’r, Miss. Dep’t of
Corrections)………………………………………………………………………..………4
Reassessing Solitary Confinement: The Human Rights, Fiscal and Public
Safety Consequences: Hearing Before the S. Comm. on the Judiciary, 112th
Cong. 13 (June 19, 2012) (written statement of James H. Scully, Jr., on behalf
of the Am. Psychiatric Ass’n)………………………………………………………………….10
Lorraine R. Reitzel & Beverly Harju, Influence of Locus of Control and
Custody Level on Intake and Prison-Adjustment Depression, 27 CRIM. JUST. &
BEHAVIOR 625 (2000)……………………………………………………………………14
CHASE RIVELAND, U.S. DEP’T OF JUSTICE, NAT’L INST. OF CORRECTIONS, SUPERMAX
PRISONS: OVERVIEW AND GENERAL CONSIDERATIONS (1999)……………………………….4–5
Judith Rodin, Aging and Health: Effects of the Sense of Control, 233 SCIENCE
1271 (1986)………………………………………………………………………………14
T.H. Scott et al., Cognitive Effects of Perceptual Isolation, 13 CAN. J. PSYCHOL.
200 (1959)…………………………………………………….…………………………..14
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Dorte Sestoft et al., Impact of Solitary Confinement on Hospitalisation Among Danish
Prisoners in Custody, 21 INT’L J. L. & PSYCHIATRY 99 (1998)…………………..6, 10, 14
Silverstein Decl. Ex. 1…………………………………………………………………….4
Peter Scharff Smith, The Effects of Solitary Confinement: Commentary on One
Year Longitudinal Study of the Psychological Effects of Administrative Segregation,
CORRECTIONS &MENTAL HEALTH (2011)…………………………………………..……6
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmate: A Brief
History and Review of the Literature, 34 CRIME & JUST. 441 (2006)…………….…..6, 12
SENSORY DEPRIVATION: A SYMPOSIUM HELD AT HARVARD MEDICAL SCHOOL (Philip
Solomon et al. eds., 1961)……………………………………………………………..…14
Peter Suedfeld, et al., Reactions and Attributes of Prisoners in Solitary
Confinement, 9 CRIM. JUSTICE & BEHAVIOR 303 (1982)…………………………6, 12–13
Don Thompson, Convict Suicides in State Prison Hit Record High,
ASSOCIATED PRESS, Jan. 3, 2006………………………………………………………….11
IVAN ZINGER & CHERAMI WICHMANN, THE PSYCHOLOGICAL EFFECTS OF 60
DAYS IN ADMINISTRATIVE SEGREGATION, Ottawa: Correctional Servs. of Can. (1999)….6
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STATEMENT OF INTEREST
Amici are leading mental health professors and practitioners of psychiatry and
psychology,1 and professional groups representing mental health professionals.2
1 Amici in their individual capacity are: (1) Stanley L. Brodsky, Ph.D., Professor of Psychology at The University of
Alabama. He has worked as Chief of Psychology at the United States Disciplinary Barracks in Fort Leavenworth,
Kansas, inspected solitary confinement facilities in 8 states as part of his clinical-forensic work, and conducted
research and clinical assessment interviews for prisoners in a variety of isolation conditions; (2) Carl Clements,
Ph.D., Professor of Psychology at the University of Alabama. He has written extensively on correctional psychology
for 40 years and has inspected dozens of U.S. prisons regarding the effects of overcrowding, offender classification
procedures, and the mental health needs of prisoners; (3) Keith R. Curry, Ph.D., a clinical psychologist with over 20
years of experience evaluating conditions of confinement and its effects on mentally ill inmates; (4) Carl Fulwiler,
M.D., Ph.D., Associate Professor of Psychiatry at the University of Massachusetts Medical School. He has extensive
experience with the mental health effects of isolated confinement, having interviewed over 200 inmates in over a
dozen segregated housing units; (5) Rafael Art. Javier, Ph.D., Director of Post-Graduate Professional Program and
Professor of Psychology at St. John’s University. He has presented at conferences and published extensively on
ethnical and cultural issues in psychoanalytic theories and practice, including on issues of violence and its impact on
general cognitive and emotional functioning; (6) Allen Keller, M.D., Associate Professor of Medicine at New York
University School of Medicine and Director of the Bellevue/New York University Program for Survivors of Torture.
Dr. Keller’s scholarly work and research has included examining the impact of prison conditions and access to health
care on prisoner health; (7) Terry A. Kupers, M.D., M.S.P., Institute Professor at The Wright Institute. Dr. Kupers
provides expert testimony as well as consultation and staff training regarding the psychological effects of prison
conditions, including isolated confinement in supermaximum security units, the quality of correctional mental health
care, and the effects of sexual abuse in correctional settings. He has published extensively on prisoners’ mental
health; (8) David Lovell, Ph.D., M.S.W., Research Associate Professor Emeritus at the University of Washington.
Professor Lovell and his colleagues conducted systematic interviews with inmates and staff in long-term solitary
confinement units, along with reviews of prison records and clinical status; (9) Mona Lynch, Ph.D., Professor and
Vice-Chair of the Department of Criminology, Law & Society at University of California, Irvine. Trained as a social
psychologist, her research focuses on criminal sentencing and punishment; (10) Katherine Porterfield, Ph.D.,
Clinical Instructor of Psychiatry at New York University School of Medicine and a Staff Psychologist at
Bellevue/New York University Program for Survivors of Torture. Dr. Porterfield has worked as a clinical evaluator
on several cases of young people held in detention at Guantanamo Bay and frequently consults with attorneys
handling cases involving torture, trauma, and maltreatment; (11) Keramet Reiter, Ph.D., J.D., M.A., Assistant
Professor at the University of California, Irvine, in the Department of Criminology, Law & Society and at the
School of Law. She is an expert in corrections, punishment, and criminal law, especially the history and uses of
solitary confinement; (12) Peter Scharff Smith, Ph.D., Senior Research Fellow at the Danish Institute for Human
Rights in Copenhagen. During the past 10 years, his research has focused on prisons and human rights, specifically
the use and effects of solitary confinement in prisons internationally and in Denmark; (13) Hans Toch, Ph.D.,
Distinguished Professor Emeritus of Criminal Justice at the University of Albany, State University of New York. He
has served as a consultant to a number of correctional systems in the United States and abroad, and has received
many awards for distinguished contributions to criminology and penology; (14) Patricia A. Zapf, Ph.D., is a
Professor in the Department of Psychology at John Jay College of Criminal Justice, The City University of New
York. She has conducted over 2,500 forensic evaluations in both the United States and Canada and has served as an
expert witness in a number of cases, including the prosecution of José Padilla
In a
2 Organizational amici are the following: (1) Association of Black Psychologists, which is focused on influencing
and affecting social change and developing programs whereby Black psychologists can assist in solving problems of
Black communities and other ethnic groups; (2) Coalition for an Ethical Psychology, which is a group of
psychologists that actively opposes the involvement of health professionals in state-supported abuse with a national
security rationale, including solitary confinement; (3) Mental Health America, which is a national advocacy
organization dedicated to promoting mental health and achieving victory over mental illnesses and addictions
through advocacy, education, research, and service; (4) The Mental Health Project (MHP) of the Urban Justice
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 17
2
professional and organizational capacity, amici have expressed concern over the growing
use of solitary confinement and its potential impact on an individual’s mental health. In
this case, they stand together because troubling scientific evidence suggests that 30 years
of solitary confinement may present a substantial risk of serious harm. Amici respectfully
request that this Court consider the scientific literature on this issue and reverse the lower
court’s grant of summary judgment because there are material issues of fact that require
resolution regarding the potential psychological harm of 30 years of solitary confinement.
Amici certify that no counsel for a party authored this brief in whole or in part, and
that no person or entity other than amici and their counsel made a monetary contribution
to the preparation and submission of this brief.3
Center, which is dedicated to enforcing the rights of low-income New Yorkers with mental illness. MHP has long
been involved in efforts to end solitary confinement in prisons; (5) National Alliance on Mental Illness (NAMI),
which is the nation’s largest grassroots organization dedicated to ameliorating the lives of Americans affected by
serious mental illnesses. NAMI has a long history of advocacy on criminal justice issues and is particularly
concerned about the excessive use of prolonged solitary confinement on inmates with serious mental illnesses and
the long-term negative effects of these practices on such individuals; (6) Physicians for Human Rights (PHR), which
is an independent non-profit organization that uses medicine and science to stop mass atrocities and severe human
rights violations against individuals; (7) Psychologists for Social Responsibility, which is an independent non-profit
organization of psychologists and students that applies psychological knowledge to promote peace and social justice,
including efforts to end solitary confinement.
3 Counsel gratefully acknowledges the assistance of Zohra Ahmed and Lauren Cooperman, law students at Fordham
University School of Law.
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3
INTRODUCTION
As amici curiae representing the perspective of leading mental health
professionals and organizations, we write to the Court expressing our concern that
prolonged solitary confinement causes a substantial risk of serious harm to an
individual’s psychological wellbeing. This case draws our attention because of the length
of the solitary confinement in question and the significance of the Court’s determination.
The Appellant has been held in solitary confinement for 30 years, far surpassing the
length of time the American Psychiatric Association defines as “prolonged”: a period
greater than 3 to 4 weeks.4 Furthermore, the Appellant is currently incarcerated in an
administrative maximum (“supermax”) facility, possibly the most restrictive form of
solitary confinement.5
4 See American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (Dec.
2012), http://www.psychiatry.org/File%20Library/Learn/Archives/ps2012_PrisonerSegregation.pdf [hereinafter
APA Position Statement]. Other notable bodies, including the United Nations, have defined prolonged solitary
confinement as 15 days, a standard to which signatory Physicians for Human Rights adheres. See JUAN MENDEZ,
UNITED NATIONS SPECIAL RAPPORTEUR ON TORTURE AND CRUEL, INHUMANE, AND DEGRADING TREATMENT,
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 9 (2011), available at
http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf.
We also recognize the potential national impact of this case. By
granting summary judgment for the Appellee, the lower court made an unprecedented
ruling on 30 years of solitary confinement. We therefore request that the Court consider
the scientific research and clinical evidence regarding the deleterious health
consequences associated with prolonged solitary confinement when deciding whether a
reasonable trier of fact could find that the Appellant’s conditions of confinement pose a
substantial risk of serious psychological harm.
5 See Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences: Hearing
Before the S. Comm. on the Judiciary, 112th Cong. 13 (June 19, 2012) [hereinafter Hearing] (testimony of Charles
E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S. Dep’t of Justice), available at http://solitarywatch.com/wpcontent/
uploads/2012/06/transcript-of-the-hearing.pdf.
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4
ARGUMENT
I.
Methodological Constraints to Studying 30 Years of Solitary Confinement
Compel the Consideration of Existing Research
A. Background: Conditions of Solitary Confinement
Throughout this brief, we discuss our concern regarding the harmful health
consequences associated with prolonged solitary confinement. For the purposes of this
brief, “solitary confinement” refers to any form of prisoner segregation in which an
inmate is locked alone in his cell for at least 22 hours each day with minimal to no
contact with anyone, including staff of the correctional facility.6 The reasons for isolating
the inmate may be disciplinary, to ensure the safety of personnel, or for the safety of the
inmate himself.7 The term “prolonged” here indicates a duration in solitary confinement
of 30 years, although we acknowledge that this term has been used to refer to a
significantly shorter time period on other occasions.8
Beyond segregating the inmate to a cell for at least 22 hours per day, the precise
conditions of solitary confinement vary across facilities.9
6 See id. at 4–8 (written statement of Charles E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S. Dep’t of Justice),
available at http://judiciary.senate.gov/pdf/12-6-19SamuelsTestimony.pdf; id. at 1 (written statement of Christopher
Epps, Comm’r, Miss. Dep’t of Corrections), available at http://judiciary.senate.gov/pdf/12-6-19EppsTestimony.pdf.
Prison officials and mental
health experts both report that the most restrictive form of solitary confinement is in a
7 See Hearing, supra note 5, at 4–8 (written statement of Charles E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S.
Dep’t of Justice); Hearing, supra note 5, at 1 (written statement of Christopher Epps, Comm’r, Miss. Dep’t of
Corrections).
8 See APA Position Statement, supra note 4 (defining prolonged solitary confinement as a duration of at least 3 to 4
weeks); MENDEZ, supra note 4 (defining prolonged solitary confinement as a duration in excess of 15 days).
9 See Silverstein Decl. Ex. 1, at 10–15, 17–21, 23–39; CHASE RIVELAND, U.S. DEP’T OF JUSTICE, NAT’L INST. OF
CORRECTIONS, SUPERMAX PRISONS: OVERVIEW AND GENERAL CONSIDERATIONS 3–4 (1999); Jeffrey L. Metzner &
Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM.
ACAD. PSYCHIATRY L. 104, 104 (2010).
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5
supermax prison, such as ADX Florence where the Appellant is housed.10 Supermax
confinement melds long-term prisoner isolation with technological advances in
surveillance and security; the use of remotely operated doors, locks, and lights, along
with the use of intercoms, cameras, and remote listening devices minimize prisoner
contact with all other persons, including correctional staff.11 Prisoner privileges in a
supermax typically are restricted to 5 to 10 hours per week of solitary exercise, and up to
two 15-minute phone calls per month.12 As a result of these conditions, prison experts
believe that inmates in supermax facilities experience more complete levels of social
isolation, sensory deprivation, and behavioral control than were previously possible.13
B. Permanent Methodological Limitations to Studying 30 Years of
Solitary Confinement Compel the Consideration of Existing Research
As the use of solitary confinement in the United States has become more prevalent,
clinicians and social scientists have sought to understand its effects on inmates. This
interest has generated a body of research that reports a heightened incidence of mental
distress among inmates placed in solitary confinement,14
10 See Hearing, supra note
sparking discussion within
5, at 6-8 (written statement of Charles E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S.
Dep’t of Justice); RIVELAND, supra note 9, at 5. Prison experts advise that there are a number of other names that
describe supermax prisons, including “special housing unit,” “maxi-maxi,” “maximum control facility,” “secured
housing unit,” “intensive housing unit,” “intensive management unit,” and “administrative maximum penitentiary.”
See RIVELAND, supra note 9, at 5.
11 See RIVELAND, supra note 9, at 11.
12 See Hearing, supra note 5, at 4–8 (written statement of Charles E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S.
Dep’t of Justice); Metzner & Fellner, supra note 9, at 104.
13 See RIVELAND, supra note 9, at 2.
14 See Henrik Steen Andersen et al., A Longitudinal Study of Prisoners on Remand: Repeated Measures of
Psychopathology in the Initial Phase of Solitary Versus Non-Solitary Confinement, 26 INT’L J. L. & PSYCHIATRY,
165 (2003); Kristin Cloyes et al., Assessment of Psychological Impairment in a Supermaximum Security Sample, 33
CRIM. JUST. & BEHAV. 760 (2006); Paul Gendreau et al., Changes in EEG Alpha Frequency and Evoked Response
Latency During Solitary Confinement, 79 J. ABNORMAL PSYCHOL. 5459 (1972); Sheilagh Hodkins & Gilles Côté,
The Mental Health of Penitentiary Inmates in Isolation, 33 CAN. J. CRIMINOLOGY 175 (1991); Holly A. Miller,
Reexamining Psychological Distress in the Current Conditions of Segregation, 1 J. CORRECTIONAL HEALTH CARE
39 (1994); Maureen L. O’Keefe, Administrative Segregation for Mentally Ill Inmates, 45 J. OFFENDER
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mental health fields as to its cause.15
A flawless scientific study—namely, one that employs randomized controlled
experimental methods—on the harms caused by 30 years of solitary confinement cannot
exist because of insurmountable ethical and methodological constraints. The primary
problem is that to execute such a study would require the random assignment of a
suitable number of subjects to the experimental intervention, in this case solitary
confinement. This is both ethically and logistically impossible, and thus, a hard stop on
its realization.
While a perfect study to resolve all medical
questions on the harms caused by prolonged solitary confinement cannot exist, the
existing research provides compelling insight into the effects of 30 years of continuous
solitary confinement on an individual.
Nonetheless, causal inferences on the harms of prolonged solitary confinement can
still be made without a randomized design through triangulation. This entails
systematically reviewing available research and identifying shared findings across studies
REHABILITATION 149 (2007); Dorte Sestoft et al., Impact of Solitary Confinement on Hospitalisation Among Danish
Prisoners in Custody, 21 INT’L J. L. & PSYCHIATRY 99 (1998); Peter Suedfeld, et al., Reactions and Attributes of
Prisoners in Solitary Confinement, 9 CRIM. JUSTICE & BEHAVIOR 303 (1982). Cf. Ivan Zinger & Cherami
Wichmann, The Psychological Effects of 60 Days in Administrative Segregation, Ottawa: Correctional Servs. of
Can. 58–59 (1999).
15 For thorough literature reviews on the topic, see Craig Haney & Mona Lynch, Regulating Prisons of the Future: A
Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE 477 (1997);
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmate: A Brief History and Review of the
Literature, 34 CRIME & JUST. 441, 488–90 (2006). Although most studies find a correlation between solitary
confinement and the incidence of psychological harm, one study in a Colorado prison found that psychological
disturbances were not unique to inmates in solitary confinement. See MAUREEN L. O’KEEFE ET AL., ONE YEAR
LONGITUDINAL STUDY OF THE PSYCHOLOGICAL EFFECTS OF ADMINISTRATIVE SEGREGATION, Colo.: Colo. Dep’t of
Corrections (2010). However, this study was conducted by prison employees and has been thoroughly critiqued for
methodological flaws. See Stuart Grassian & Terry Kupers, The Colorado Study vs. the Reality of Supermax
Confinement, 13 CORRECTIONAL MENTAL HEALTH REP. 1 (2011) (noting that, among other things, the researchers
ignored data that contradicted their conclusions, such as statistically significant results that inmates in solitary
confinement had higher rates of psychiatric episodes); see also Peter Scharff Smith, The Effects of Solitary
Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative
Segregation, CORRECTIONS &MENTAL HEALTH (2011).
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7
with different methodological designs.16 In particular, triangulation is commonly relied
upon to verify causal relationships in empirically complex issues.17 Here, we draw on a
number of sources of scientific evidence. First, we look to epidemiological data to
examine patterns of mental distress that are overrepresented in the solitary confinement
population.18 Second, we rely on the experimental research on solitary confinement and
focus on 8 studies based on their methodological strength.19 These studies examine the
potential effects of solitary confinement for time periods ranging from 2 days to 15
months—none of which come close to approximating 30 years. As this research
originated from 8 different facilities across North America and Europe, the exact
conditions of solitary confinement varied, but most involved conditions far less restrictive
than supermax confinement. Third, we survey the literature on clinical observations of
inmates in solitary confinement to provide insight into specific types of mental and
physiological health consequences observed among inmates in solitary confinement.20
16 See TOM O’DONOGHUE & KEITH PUNCH, QUALITATIVE EDUCATIONAL RESEARCH IN ACTION: DOING AND
REFLECTING 78 (2003) (defining triangulation as a “method of cross-checking data from multiple sources to search
for regularities in the research data”).
Together, the findings of these different strands of research converge and mutually
corroborate solitary confinement’s potential to cause serious psychological harm. This
conclusion is reinforced by research outside of the prison context on the effects of
17 See Haney & Lynch, supra note 15, at 498 (relying on a triangulation method to arrive at conclusions regarding
the psychological impact of solitary confinement).
18 See infra Section II.B.
19 See infra Section II.C. We surveyed 14 primary research studies and concentrated on 7 within this group that used
a sample size of at least 10 subjects and included data within its research report. The resulting reports ranged in
sample size from 20 to 345 inmates.
20 See infra Section II.C.
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psychologically analogous conditions of sensory and social deprivation, which will all be
discussed below.
II.
Current Research Raises Concern for the Substantial Risk of Serious
Psychological Harm Posed by 30 Years of Solitary Confinement
In light of the American Psychiatric Association’s benchmark for prolonged
solitary confinement and the research suggesting a correlation between psychological
harm and such conditions, there is concern that 30 years of solitary confinement imposes
a substantial risk of serious psychological harm on an inmate.21
A. The American Psychiatric Association’s Benchmark for Prolonged
Solitary Confinement is Well Below 30 Years
The duration of the term of solitary confinement before this Court is of critical
concern. According to the American Psychiatric Association, “prolonged solitary
confinement” generally refers to periods of 3 to 4 weeks.22 This definition was provided
in a position statement recommending against placing prisoners with serious mental
illnesses in solitary confinement because of the potential harm to such vulnerable
inmates.23
21 Although we focus on the psychological research on this issue, Charles Samuels, the Director of the Federal
Bureau of Prisons, recently expressed a concern over prolonged solitary confinement in his congressional testimony.
In response to being asked whether he believed that solitary confinement has a negative impact on an individual,
Samuels stated, “I would say I don’t believe it is the preferred option and that there would be some concerns with
prolonged confinement.” See Hearing, supra note
Given that four weeks of solitary confinement was described as potentially
harmful, the 30-year duration in this case compels scrutiny. If shorter periods of solitary
confinement have resulted in psychological distress and symptoms, it is not unreasonable
to assume that substantially longer durations provide a greater risk of serious health
5, at 10 (testimony of Charles E. Samuels, Jr., Dir., Fed. Bureau
of Prisons, U.S. Dep’t of Justice).
22 See APA Position Statement, supra note 4; see also Mendez, supra note 4, defining “prolonged solitary
confinement” as a period of time in excess of 15 days.
23 See APA Position Statement, supra note 4.
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consequences.
B. The Incidence of Psychological Distress Suggests a Correlation
Between Solitary Confinement and Mental Health
Epidemiological research on the prison population indicates that there are higher
rates of mental illness, more psychiatric hospitalizations, and a markedly higher
incidence of suicide amongst inmates held in solitary confinement.
Experts in prisoners’ mental health describe higher rates of mental illness in the
solitary confinement population.24 Data from various states corroborate this general
observation.25 A survey of Colorado prisons from 2007 found that 35% of inmates in
solitary confinement were diagnosed with mental illness, as compared to 25% of inmates
in the general prison population.26 Similarly, in California, which historically has
maintained one of the largest prison populations,27 it was reported in 2002 that 31.8%, or
1,753 inmates, of the solitary confinement population was on the mental health
caseload,28 as compared to 12.5% of the total prison population in 2000.29
24 See Hodgins & Côté, supra note
In New York
15, at 181; Metzner & Fellner, supra note 9, at 105. See also supra note 15 for a
contrary report and critique of this report.
25 See Miller, supra note 14. Miller’s findings within a single prison lend support to the documented overincidence
of mental distress in solitary confinement inmate populations across prisons. Miller’s experimental study found that
as the degree of confinement and restriction intensified across prison units in a single prison, the level of individual
psychological distress would also increase. This finding was based on a study that compared the psychological
condition of inmates in solitary confinement to that of the general population, all within a single federal prison in
Ashland, Kentucky.
26 See O’Keefe, supra note 14, at 157.
27 E. ANN CARSON & WILLIAM SABOL, U.S. DEP’T OF JUSTICE, PRISONERS IN 2011 (2012), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/p11.pdf.
28 See SASHA ABRAMSKY & JAMIE FELLNER, HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS
WITH MENTAL ILLNESS 147–149 (2003), available at http://www.hrw.org/reports/2003/usa1003/usa1003.pdf (citing
Cal. Dep’t of Corrections, Health Care Placement Unit, Mental Health Adseg/SHU/PSU: Population chart created
on July 25, 2002).
29 ALLEN J. BECK & LAURA M. MARUSCHAK, U.S. DEP’T OF JUSTICE, MENTAL HEALTH TREATMENT IN STATE
PRISONS, 2000 (2001), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mhtsp00.pdf. This statistic is overinclusive
because it represents the total prison population, and therefore also includes the solitary confinement
population.
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State in 2004, 22% of inmates in solitary confinement were on the mental health
caseload, and about 11% (approximately 480 individuals) were diagnosed with a serious
mental illness.30 These rates are disproportionate to that of the total prison population,
where 11% were on the mental health caseload and 5% were treated for a serious mental
illness.31
Psychiatric hospitalizations, usually needed for more severe symptoms and
conditions of mental illness, have been examined in relation to individuals in solitary
confinement. Inmates in solitary confinement have been found to be 20 times more likely
to be hospitalized for psychiatric reasons than those in the general prison population. This
likelihood of hospitalization for psychiatric reasons increased the longer an inmate
remained in solitary confinement.32
In this context, prison health experts have remarked that it is not surprising that
suicide rates are dramatically and disproportionately higher among prisoners in solitary
confinement than in the general prison population.33 A national study of 401 jail suicides
in the 1980s found that two-thirds of suicides occurred in solitary confinement.34
30 CORRECTIONAL ASS’N OF N.Y., MENTAL HEALTH IN THE HOUSE OF CORRECTIONS 49 (2004),
http://www.correctionalassociation.org/wp-content/uploads/2004/06/Mental-Health.pdf.
More
recently, a 2005 study of the solitary confinement population in California showed that
31 Id. at 9. These statistics are over-inclusive because they represent the total prison population, and therefore also
include the solitary confinement population.
32 See Sestoft et al., supra note 15, at 103.
33 See Hearing, supra note 5, at 3 (written statement of James H. Scully, Jr., on behalf of the Am. Psychiatric Ass’n),
available at http://www.psychiatry.org/advocacy–newsroom/advocacy/apa-submits-testimony-to-congress-on-thestate-
of-americas-mental-health-system; Metzner & Fellner, supra note 9, at 105.
34 See LINDSAY M. HAYES & JOSEPH R. ROWAN, NATIONAL STUDY OF JAIL SUICIDES: SEVEN YEARS LATER, Nat’l
Ctr. on Insts. & Alternatives (1988).
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those inmates in solitary confinement accounted for 70% of prison suicides,35 but based
on prison records this population represented only 1.7% of total inmates.36 Moreover, the
Director of the Federal Bureau of Prisons recently confirmed in his congressional
testimony that since 2006, 45% of all prison suicides occurred in solitary confinement
units, even though at any one time only 7% of the federal prison population was in
solitary confinement.37
The exact reason for this higher incidence of psychological distress cannot be
definitively ascertained because there is insufficient data on the psychological state of
inmates prior to their time in solitary confinement. However, the correlation between
serious psychological harm and solitary confinement suggests three possible
explanations: (1) inmates suffering from mental distress are placed in solitary
confinement at a higher rate than healthy inmates, (2) inmates mentally deteriorate as a
result of solitary confinement, or (3) some combination thereof. All of these possibilities
are troubling from a healthcare perspective.
C. Empirical Research Reports a Pattern of Symptoms Within the
Solitary Confinement Population
Our concern over the potential consequences of solitary confinement is further
prompted by the pattern of symptoms repeatedly documented in studies and observations
35 See Don Thompson, Convict Suicides in State Prison Hit Record High, ASSOCIATED PRESS, Jan. 3, 2006,
available at http://www.freerepublic.com/focus/f-news/1550815/posts.
36 CAL. DEP’T OF CORRECTIONS & REHAB.,MONTHLY REPORT OF POPULATION AS OF MIDNIGHT DECEMBER 31, 2005
(2006),
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad05
12.pdf (reporting 2,986 inmates in solitary confinement and 166,723 total prisoners).
37 See Hearing, supra note 5 (testimony of Charles E. Samuels, Jr., Dir., Fed. Bureau of Prisons, U.S. Dep’t of
Justice), available at http://judiciary.senate.gov/pdf/12-6-19SamuelsTestimony.pdf.
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of prisoners.38
Experimental studies and clinical observations of individuals in solitary
confinement report the following symptoms to be overrepresented in the inmates. The
severity of symptoms fluctuated across individuals even within a single facility,
independent of variations in conditions of confinement. The symptoms include:
The occurrence of these varied and serious symptoms is also reflected in
studies of non-prison subjects who were exposed to similar sensory and social
deprivation through laboratory conditions or real-life situations. While further research is
required to determine the impact of social and sensory deprivation, the current indication
of harm is too troubling to be dismissed.
• Anxiety: Experimental studies report anxiety in inmates.39 Clinicians also have
documented more severe symptoms including high rates of generalized anxiety and
panic attacks.40
• Anger: Feelings of irrational rage, anger, and aggression were confirmed in both the
experimental studies41 and clinical observations.42
38 While few studies focus exclusively on the direct physiological effects of solitary confinement, there is evidence
to suggest that the prolonged isolation may also have adverse physical effects. The most commonly reported
physiological responses to solitary confinement include: headaches and heart palpitations. See MICHAEL JACKSON,
PRISONERS OF ISOLATION: SOLITARY CONFINEMENT IN CANADA (1983), http://papers.ssrn.com/abstract=1890921;
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmate: A Brief History and Review of the
Literature, 34 CRIME & JUST. 441, 488–90 (2006). In his 1988 study of the women’s High Security Unit in
Lexington, Kentucky, Richard Korn described the following psychosomatic symptoms resulting from confinement:
“loss of appetite, marked loss of weight, exacerbation of pre-existing medical problems, general physical malaise,
visual disturbances, dizziness, [and] heart palpitations.” Richard Korn, Follow-Up Report on the Effects of
Confinement in the High Security Unit at Lexington, 15 SOC. JUST. 8, 15 (1988).
39 See Andersen et al., supra note 15, at 171; Hodkins & Côté, supra note 15, at 178.
40 See Stanley L. Brodsky & Forrest R. Scogin, Inmates in Protective Custody: First Data on Emotional Effects, 1
FORENSIC REPS. 267, 277 (1988); Stuart Grassian, Psychopathological Effects of Solitary Confinement, 14 AM. J.
PSYCHIATRY 1450, 1452 (1983); Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 CRIME & DELINQUINCY124, 133 (2003) (finding anxiety in 91% of the 100 prisoners in the Security
Housing Unit that were interviewed).
41 See Suedfeld et al., supra note 14.
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• Cognitive Disturbances: Research studies document cognitive disturbances among
inmates.43 Clinical studies have also found inmates suffering from dissociative
stupors (instances when an individual is mute and motionless but aware of his or her
surroundings, and the experience is not explained by a physical illness or mental
illness), confusion, lethargy, and impairment in thinking, concentrating, and
remembering.44
• Perceptual Distortions: Clinicians have observed inmates experiencing perceptual
distortions, such as seeing, hearing, feeling, tasting, or smelling things that others do
not or experiencing their environment in a substantially different way than others
do, including hypersensitivity to external stimuli, derealization experiences (feeling
as if stimuli around the person, or the person him or herself, are not real), and
hallucinations.45
• Paranoia: Clinical observations confirm that inmates have suffered from paranoia,
obsessive ideation (recurrent thoughts that the person does not want but continues to
have despite attempts to stop them), and psychosis (a syndrome that includes
hallucinations, delusions, and catatonia—the absence of movement or the presence
of odd movements that cannot be explained by medical or mental illness).46
42 See Brodsky & Scogin, supra note 40, at 277; Grassian, supra note 40, at 1452; Haney, supra note 40, at 133
(finding that symptoms of anger in 88% of the 100 prisoners in the Security Housing Unit that were interviewed);
Holly A. Miller & Glenn Young, Prison Segregation: Administrative Detention Remedy or Mental Health
Problem?, 7 CRIM. BEHAVIOUR &MENTAL HEALTH 85, 91–92 (1997).
43 See Suedfeld et al., supra note 14.
44 See Brodsky & Scogin, supra note 40, at 272; Grassian, supra note 40, at 1453. Also, one study detected lower
Electroencephalography (EEG) frequencies, which indicate lowered electrical activity in the brain. See Gendreau et
al., supra note 12, at 57.
45 See Brodsky & Scogin, supra note 40, at 272; Grassian, supra note 40, at 1452; Haney, supra note 40, at 134.
46 See Grassian, supra note 40, at 1453; Metzner & Fellner, supra note 9, at 104.
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• Depression: Both experimental studies and clinical observations have found varying
levels of depression among inmates in solitary confinement.47
Additionally, a sense of control can help to stabilize psychological reactions to stress.48
Therefore, it has been hypothesized that individuals placed in solitary confinement
indefinitely, such as the Appellant, may experience exacerbated psychological distress as
a result of their perceived lack of control.49
Each of the above symptoms has also been documented in individuals subjected to
sensory and social deprivation outside of the prison context: Antarctic explorers,50
cosmonauts,51 and subjects of experimental laboratory research52
47 See Andersen et al., supra note
all reported a similar set
of symptoms. The consistent appearance of these symptoms across contexts underscores
a basic human need for sensory and social stimulation. Medical and psychological
15, at 171; Brodsky & Scogin, supra note 40, at 272, 277; Hodkins & Côté, supra
note 15, at 178; Sestoft et al., supra note 15, at 103.
48 See Judith Rodin, Aging and Health: Effects of the Sense of Control, 233 SCIENCE 1271, 1273–74 (1986).
49 See, e.g., Lorraine R. Reitzel & Beverly Harju, Influence of Locus of Control and Custody Level on Intake and
Prison-Adjustment Depression, 27 CRIM. JUST. & BEHAVIOR 625 (2000) (examining prisoners in different levels of
custody, and finding that prisoners’ beliefs regarding perceptions of personal control affected their level of
depression).
50 See E.K. Eric Gunderson, Emotional Symptoms in Extremely Isolated Groups, 9 ARCH. GEN. PSYCHIATRY, 362,
362–368 (1963). The South Pole study involved scientists living in Antarctica for a year with only intermittent radio
communication with the outside world, and living in conditions of six months of daylight followed by six months of
nighttime. Id. at 364. As the duration of isolation and sensory stimulation increased, scientists self-reported feelings
of anger, irritability, and depression, which they attributed to their reduced motivation to work. Id. at 367.
51 See DIANA ARIAS & CHRISTIAN OTTO, NAT’L AERONAUTICS & SPACE ADMIN., DEFINING THE SCOPE OF SENSORY
DEPRIVATION FOR LONG DURATION SPACE MISSIONS 17 (2011) (citing B.J. BLUTH & MARTHA HELPPIE, SOVIET
SPACE STATIONS AS ANALOGS, Vol. I–II (1986). In this study, the psychological consequences for cosmonauts on a
211-day space mission were examined. Id. During the expedition, the cosmonauts manifested neurotic reactions,
persistent irritability, drowsiness, sleep disorders, deterioration in work capacity, and psychological stress. Id.
52 See, e.g., CHARLES A. BROWNFIELD, ISOLATION: CLINICAL AND EXPERIMENTAL APPROACHES (1965); SENSORY
DEPRIVATION: A SYMPOSIUM HELD AT HARVARD MEDICAL SCHOOL (Philip Solomon et al. eds., 1961); T.H. Scott
et al., Cognitive Effects of Perceptual Isolation, 13 CAN. J. PSYCHOL. 200 (1959). In a series of sensory deprivation
studies, volunteer subjects were placed in lightproof and soundproof rooms and wore clothing to reduce sensory
stimulation, such as goggles and cardboard sleeves. See also Thomas I. Myers et al., U.S. Army Leadership Human
Research Unit, Experimental Assessment of a Limited Sensory and Social Environment: Summary Results of the
HumRRO Program (1962). In this volunteer study, U.S. Army soldiers were confined in small, dark, quiet cubicles
for four days. The subjects reported feelings of anger, cognitive impairment, and depression as a result of the
experiment. Id.
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 30
15
research supports the premise that sensory53 and social stimulation54 are vital to healthy
human functioning.55
CONCLUSION
Deprivations can lead to increased levels of distress in even healthy
and high-achieving individuals, like the Antarctic explorers and cosmonauts mentioned
above. Thus, conditions approximating solitary confinement in non-prison populations
have been shown to contribute to psychological deterioration similar to that seen in the
prison population.
Prisoners held in solitary confinement for decades have become subjects in an
uncharted social experiment by living in solitary confinement for durations exceeding
any previously studied. Although a perfect study on the harms of prolonged solitary
confinement will never exist, given its increased prevalence and the length at issue here,
the compelling existing research guides us to conclude that inmates in prolonged solitary
confinement face a substantial risk of serious harm.
In this case, the Appellant is entering his geriatric years and has been in indefinite
solitary confinement for the past 3 decades. These facts, combined with the documented
correlation between solitary confinement and mental distress, and the consistent pattern
53 See F.P. Kosmolinsky & Z.D. Shchcirbina, Sensory Deprivation in Space Flight 33 (1970). For a literature review
of sensory deprivation studies, see Arias & Otto, supra note 51. A flow of meaningful sensory stimulation is
required for normal brain activity in the cerebral cortex. Id. Within this region of the brain, the temporal lobe
processes sensory inputs and derives cognitive meaning from afferent stimuli. Id.
54 See CHARLIE HORTON COOLEY, HUMAN NATURE AND THE SOCIAL ORDER 168–210 (1902). Social stimulation is
required to form one’s identity. See George Herbert Mead, The Genesis of the Self and Social Control, 35 INT’L J.
ETHICS 251 (1925). It also plays a critical role in grounding reality in social context. See Leon Festinger, A Theory of
Social Comparison Processes, 7 HUMAN RELATIONS 327 (1954).
55 See e.g., Harry Harlow et al., TOTAL SOCIAL ISOLATION IN MONKEYS, 54 PROCEEDINGS NAT’L ACADEMY SCIENCE
90–97 (1965). Harlow’s series of influential studies on social isolation of baby rhesus monkeys became the basis of
the modern understanding of the maladaptive psychological reaction to total isolation. Id.
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 31
16
of symptoms observed in the aforementioned research, increase our concern of a
substantial risk of serious psychological harm and our skepticism that no reasonable trier
of fact could find such risk. We therefore respectfully ask that the Court consider the
research discussed here when deciding whether a reasonable trier of fact could find that
30 years of solitary confinement poses a substantial risk of serious psychological harm.
Respectfully Submitted,
Dated: February 27, 2013
By:
Michael W. Martin, Esq.
s/ Michael W. Martin
mwmartin@lsls.fordham.edu
James A. Cohen, Esq.
s/ James A. Cohen
jcohen@lsls.fordham.edu
Lincoln Square Legal Services, Inc.
Fordham University School of Law
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 32
17
CERTIFICATE OF COMPLIANCE
1. Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that the foregoing motion
and accompanying brief comply with the type-volume limitations of Fed. R. App.
P. 29(d) and 32(a)(7)(B) because the brief contains 5,833 words, excluding the
portions of the brief excluded under Fed. R. App. P. 32(a)(7)(A)(iii). This count is
based on the word count feature of Microsoft Word.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because it was prepared in
a proportionally spaced typeface using Microsoft Word 2007 in size 13 point
Times New Roman.
Dated: February 27, 2013
By:
Michael W. Martin, Esq.
s/ Michael W. Martin
mwmartin@lsls.fordham.edu
James A. Cohen, Esq.
s/ James A. Cohen
jcohen@lsls.fordham.edu
Lincoln Square Legal Services, Inc.
Fordham University School of Law
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 33
18
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY
REDACTIONS
1. The foregoing motion, the accompanying brief, and the attached certificates have
been scanned for viruses with the most recent version of a commercial virus
scanning program, Norton 360, and are free of viruses according to the program.
2. The foregoing motion and the accompanying brief comply with the privacy
requirements of Tenth Circuit Rule 25.5 because the motion and brief do not
contain any private information that rule requires to be redacted.
Dated: February 27, 2013
By:
Michael W. Martin, Esq.
s/ Michael W. Martin
mwmartin@lsls.fordham.edu
James A. Cohen, Esq.
s/ James A. Cohen
jcohen@lsls.fordham.edu
Lincoln Square Legal Services, Inc.
Fordham University School of Law
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 34
A-5 Entry of Appearance Form 10/09
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Entry of Appearance and Certificate of Interested Parties
v. Case No.
INSTRUCTIONS: COUNSEL FOR A PARTY MUST FORTHWITH EXECUTE AND FILE THIS FORM,
INDICATING METHOD(S) OF SERVICE ON ALL OTHER PARTIES. MULTIPLE COUNSEL APPEARING FOR
A PARTY OR PARTIES AND WHO SHARE THE SAME MAILING ADDRESS MAY ENTER THEIR
APPEARANCES ON THE SAME FORM BY EACH SIGNING INDIVIDUALLY.
In accordance with 10th Cir. R. 46.1, the undersigned attorney(s) hereby appear as counsel for
____________________________________________________________________________________
Party or Parties
_________________________________________________________________________, in the subject case(s).
Appellant/Petitioner or Appellee/Respondent
Further, in accordance with 10th Cir. R. 46.1, the undersigned certify(ies) as follows: (Check one.)
On the reverse of this form is a completed certificate of interested parties and/or attorneys not otherwise
disclosed, who are now or have been interested in this litigation or any related proceeding. Specifically,
counsel should not include in the certificate any attorney or party identified immediately above.
There are no such parties, or any such parties have heretofore been disclosed to the court.
_________________________________________ ______________________________________________
Name of Counsel Name of Counsel
___________________________________________ ______________________________________________
Signature of Counsel Signature of Counsel
___________________________________________ ______________________________________________
Mailing Address and Telephone Number Mailing Address and Telephone Number
E-Mail Address ______________________________ E-Mail Address _________________________________
I hereby certify that a copy of this Entry of Appearance and Certificate of Interested Parties was served on
(please insert date) ____________________________ via (state method of service) ______________________.
to __________________________________________ ______________________________________________
(See Fed. R. App. P. 25(b)) (Signature)
Thomas Silverstein, Appellant
Bureau of Federal Prisons, et al., Appellee
12-1450
Amici Curiae
Appellant/Petitioner

Michael W. Martin, Esq. James A. Cohen, Esq.
s/ Michael W. Martin s/ James A. Cohen
140 West 60th Street, Third Floor, New York, NY 10023, (212) 636-6934 140 West 60th Street, Third Floor, New York, NY 10023, (212) 636-6934
mwmartin@lsls.fordham.edu jcohen@lsls.fordham.edu
02/27/2013 ECF
Counsel listed below
s/ Michael W. Martin s/ James A. Cohen
mwmartin@lsls.fordham.edu jcohen@lsls.fordham.edu
140 West 60th Street, Third Floor, New York, NY 10023, (212) 636-6934
19
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 35
A-5 Entry of Appearance Form 10/09
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
v. Case No.
Certificate of Interested Parties
The following are not direct parties in this appeal but do have some interest in or a relationship
with the litigation or the outcome of the litigation. See 10th Cir. R. 46.1(D). In addition, attorneys not
entering an appearance in this court but who have appeared for any party in prior trial or administrative
proceedings, or in related proceedings, are noted below.
(Attach additional pages if necessary.)
Thomas Silverstein
12-1450
Bureau of Federal Prisons, et al., A
Pursuant to 10 Cir. R. 46.1 (C), the undersigned certifies that he is not aware of any additional parties, entities,
or attorneys in any of the categories listed in 10 Cir. R. 46.1 (C) not previously reported to the Court.
20
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 36
21
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing amicus curiae brief, an Entry of
Appearance and a Certificate of Interested Parties were furnished through (ECF)
electronic service to the following on the 27th day of February, 2013:
Juan G. Villasenor Laura Rovner
Juan.villasenor@usdoj.gov lrovner@law.du.edu
Marcy Cook Brittany Glidden
Marcy.cook@usdoj.gov bglidden@law.du.edu
United States Attorney’s Office Student Law Office
Assistant United States Attorneys University of Denver Sturm College of Law
1225 17th Street 2255 East Evans Avenue
Denver, CO 80202 Denver, CO 80208
Tel: (303) 454-0100 Tel: (303) 871-6140
By:
Michael W. Martin, Esq.
s/ Michael W. Martin
mwmartin@lsls.fordham.edu
James A. Cohen, Esq.
s/ James A. Cohen
jcohen@lsls.fordham.edu
Lincoln Square Legal Services, Inc.
Fordham University School of Law
33 West 60th Street, Third Floor
New York, New York 10023
Tel: (212) 636-6934
Counsel for Amici Curiae
Appellate Case: 12-1450 Document: 01019009923 Date Filed: 02/27/2013 Page: 37

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