Prolonged Solitary Confinement on Trial —An Interview With Law Professor Angela A. Allen-Bell

A diverse grassroots movement confronting the widespread use of prolonged solitary confinement in US prisons appears to be gaining momentum. On the morning of Tuesday, June 19, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights is having an important public hearing on “Reassessing Solitary Confinement: The Human Rights, Fiscal and PublicSafety Consequences,” presided over by Chairman Dick Durbin.

This Senate hearing comes on the heels of widespread prisoner hunger strikes that have made the use of solitary confinement a central issue. Last summer, a prisoner hunger strike at California’s infamous Pelican Bay State Prison sparked a state-wide strike that gained national attention. On May 31, a federal lawsuit was filed on behalf of prisoners at Pelican Bay, arguing that prolonged solitary confinement is cruel and unusual punishment.

A similar federal lawsuit that was jointly filed over a decade ago by Robert King, Herman Wallace, and Albert Woodfox, of the Angola 3, is expected to go to trial in early 2013. When King’s conviction was overturned in 2001, he was released after spending 29 years in continuous solitary. Wallace and Woodfox remain behind bars and have now spent over 40 years in solitary. The three have also jointly submitted a statement for Tuesday’s Senate hearing.

On April 17, 2012, exactly 40 years after first being placed in solitary, Amnesty International delivered a 67,000 signature petition to Louisiana Governor Bobby Jindal’s office, demanding Woodfox and Wallace’s immediate release from solitary confinement. Robert King and Everette Thompson, Southeast Regional Director of Amnesty USA were joined by a delegation that included State Representative Patricia Haynes-Smith, Chair of the Louisiana Legislative Black Caucus, Alfreda Bester-Tillman, Esq. from the Baton Rouge Chapter of the NAACP, Pastor Kathleen Bacon from the Slidell Chapter of the National Action Network, and many others, but Governor Jindal refused to meet with them, and referred the issue to the Department of Public Safety and Corrections. In response, Amnesty has launched a new online petition directed to Secretary James M. LeBlanc.

Another member of the delegation that joined Amnesty International on April 17 was Angela A. Allen-Bell, a law professor at Southern University in Baton Rouge. The newly released issue of the Hastings Constitutional Law Quarterly features an article by Prof. Bell entitled “Perception Profiling & Prolonged Solitary Confinement Viewed Through the Lens of the Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged and Justice Become Legally Blind.” A ten-page summary of her article’s key points has been submitted by Bell for Tuesday’s Senate hearing along with a link to the full article. On the eve of the hearing, we spoke with Bell about why she wrote this piece and what the case of the Angola 3 reveals about the broader human rights nightmare inside US prisons.

Angola 3 News: How did you first learn about the case of the Angola 3?

Angela A. Allen-Bell: Over ten years ago, I happened upon a newspaper article about the case. It caused me pause. I continued with my normal routine until the memory of that headline entered my mind in 2009. Work on an article about injustices in post-Katrina Louisiana made me recall that headline I had read years earlier. Once I finished that publication, I could not overcome the need to know the end of the Angola 3’s story so I began to research the case. To my complete surprise, the end had yet to arrive.

A3N: Why did you choose to focus on the Angola 3 case as “lens” to view the use of solitary confinement in US prisons today? What does their case tell us?

AB: It’s unfortunate, but there is no shortage of cases to choose from. I could have selected many other cases, but that was never a consideration. My article was born of a desire to understand the Angola 3 case, based on those lingering questions that remained after I saw the headline about the case years ago. Given this, I never entertained the thought of using any other case as a case study.

Now that the article is complete and the research is done, I am certain I made the right choice in using the Angola 3 case for a case study. I say this because there is nothing in their prison records that could hinder a reasonable mind from seeing the flaws in the current solitary confinement “process” (used for lack of a better word, but with no intention of legitimizing what is happening in American’s penal institutions today).

For example, there are some inmates in prolonged isolation who have recent disciplinary infractions or who have a history of repeated institutional violence or who have medical opinions supporting the housing assignment. In such a case, the average person would not give thought to a conversation about abolishing or modifying the solitary confinement system. In such a case, the average person would dismiss conversations about harm being done to the inmate as being deserved.

In contrast, the facts surrounding the Angola 3’s stay in solitary confinement compel action and challenge silence because there are no recent disciplinary infractions and no medical or psychiatric findings to justify or support the housing assignment. Prison officials have even said that Herman Wallace and Albert Woodfox are not physically dangerous to others and are not an escape risk. Because of this, the Angola 3 case makes for the perfect case study because there are no factual distractions. When you look at their case, you can see the issue without anything obstructing your view.

A3N: Herman Wallace and Albert Woodfox’s 40 years in solitary began after they organized a chapter of the Black Panther Party at Angola Prison. Shorty after acclaimed prison author George Jackson started a BPP chapter at San Quentin Prison in California, he was assassinated, and his closest known comrades were prosecuted as the San Quentin Six. The last of the Six behind bars is Hugo Pinell, now in solitary confinement for over 42 years—currently held at the notorious Pelican Bay supermax prison.

We know that Angola warden Burl Cain has justified Albert Woodfox’s continued placement in solitary by citing his practice and belief in “Black Pantherism.” What do you think it is about the Panthers and their legacy today that prison authorities find so threatening?

AB: The media very effectively taught the world that the Black Panthers were nothing more than a gun toting militia group. Schools have omitted meaningful lessons about the Black Panthers from their curriculum. The Government, through its COINTELPRO program, criminalized the Panthers and led a campaign to discredit them.

With all these competing forces, the average citizen is left to his or her own devices to investigate and reach a conclusion about the Panthers. I don’t think we are there yet as a society. And I especially don’t think most Louisiana, politically-appointed, prison administrators shape their viewpoints of those in their custody after engaging in a balanced study of issues concerning racial history and social change organizations.

Your question asks about “prison authorities.” I offer a more limited response because, in my view, the Louisiana prison experience, and certainly the Louisiana State Penitentiary (Angola) prison structure, warrants a particularized response. This is said because the 13th Amendment, legalizing slavery in prison, means something very different in a former slave state than it does where slavery was not practiced. The 13th Amendment also takes on a different form on plantation land, which is what Angola is. In a former slave state, like Louisiana, free labor has always been a commodity in high demand. When there are opportunities to get free labor or to be compensated for housing human cargo, some act aggressively to capture the prey. In those cases, it’s the prey that is being hunted and not the politics that is being challenged.

In other cases, there is sheer ignorance about the fact that the Black Panthers wanted much of what mainstream America wants. They wanted to see men be providers and leaders in their homes and communities and they wanted to see their communities be functional and not dysfunctional. They wanted to see children respect authority and aspire for academic excellence. The Panthers strongly believed in self-reliance and community empowerment as opposed to government dependence. The Panthers did so many positive things for the community, like escorting the elderly to the bank, protecting their neighborhoods, educating the ignorant and the lost, and feeding the hungry.

Many prison administrators, like the general public, do not know this history. What is etched in their minds is the image of the guns that that media shows in the same way the media showed the images of African Americans “looting” or “taking” (and not “finding” or “needing”) after Hurricane Katrina. With this limited understanding, one can see the basis for the perceived threat.

I will share one final perspective about the reaction of some prison officials to the Panthers. To some administrators, an African American man today is what the law named him yesterday: a piece of property. When such a person is confronted with a Panther, a non-pacifist type of African American, their innate and subconscious reaction is to do what is done to property that is misplaced. The inclination is to put it back in its proper place. Thus, many of the Panthers are being put in their places (solitary confinement) because what they represent as African American men is incomprehensible, intolerable and out of place. What is threatening about them is not the Panther affiliation necessarily, but the Panther mind and ideals. Some administrators are at their best without the fear of the consciousness that could be raised by such a person. As they see it, their regime would run more effectively with property because property doesn’t move or speak back.

To appreciate this point, you might consider a house when its inhabitants are away and the property is left all alone. Inactivity and calm prevails. When the inhabitants return, activity follows. Some prison administrators delight when the occupants of their home are away and only the property is left in their immediate view. These administrators falsely assume all activity is disruptive activity. More importantly, these administrators dwell in a day gone by. Today, African Americans are no longer recognized as property. These administrators are actually guilty of creating the threat they say they fear.

A3N: With over 2.4 millions prisoners today, the US now has more total prisoners and a higher incarceration rate than any other country in the world. How does the use of prolonged solitary confinement fit into this human rights nightmare that is mass incarceration fueled by the criminalization of poverty? In this broader context, what role does it play?

AB: I alluded to the 13th Amendment in my earlier response. It is applicable here as well and it would be intellectually dishonest of me not to interject it into this discussion. A lodging facility is happier when you lodge for a prolonged period than they are when you lodge for a brief period. They are paid more for a longer stay than for a short stay. Such is the case with many institutions.

The 13th Amendment allows slavery or involuntary servitude when someone is incarcerated. If certain jurisdictions or corporations are paid for the amount of human cargo in their facility, then the longer the stay, the better. Inmates held in prolonged solitary confinement ensure maximum occupancy and they do not require the expenses related to compensating teachers or staff or expenditures for materials or supplies.

Once in solitary for a prolonged period, the average inmate will be robbed of the mental stamina to effectively challenge his stay. Even if the inmate could mount a challenge, it would be meaningless because, in most institutions, the review process one would employ to gain exodus from solitary confinement is constitutionally deficient. On this point, my article expresses: “A simulated process akin to a hearing, where formalities can be documented, but where no meaningful probing occurs, is unjust and unconstitutional. It amounts to nothing more than procedural automation in a legal assembly line where unfavorable reviews are mass-produced.”

In the end, the beds remain full and the payments continue coming. Before you know it, more prisons get built and more beds need to be filled. Going back to my earlier point about how, as a society, we are not investigating the things that are reported, this would be another such case. Some elected officials and some media outlets suggest we need prisons in order to be safe. We innocently accept that.

A3N: Let’s take a closer look at the title of your Hastings Constitutional Law Quarterly article. How have “prison officials become judges?”

AB: A judge is charged with the task of imposing sentences, not a prison administrator. When a prison administrator places an inmate in prolonged solitary confinement (often after the inmate has not committed an infraction while in custody), that inmate has an increased risk of mental decline and death. Taking this at face value, one might contend that a sentence (possibly a death sentence) has been handed down.

My article notes: “When prison officials stop acting as administrators and effectively begin handing down sentences, they, for all practical purposes, become judges. The Separation of Powers Doctrine prohibits prison officials from acting with this authority.”

A3N: How do “judges become visually challenged?”

AB: Courts generally defer to prisons administrators and often limit their role to making sure that the inmate was afforded a process. In the case of prolonged isolation, courts do not review the substance of the process.

My article states: “When judges abstain from meaningful involvement in the periodic review process, they look, but fail to see the very thing they are uniquely positioned to see. They do not see the need for justice and interpretation of law—due process law.”

A3N: How does justice become “legally blind?” What do you mean by this?

AB: If a court does a “sniff test” and not a thorough review of the actual process afforded an inmate subject to prolonged isolation, the court’s view of the problem is challenged. What the court misses is the fact that the prison did not carry a burden of proof or the inmate was left with no way to mount a defense because the isolation robs the inmate of a way to show any reformation as the inmate is not allowed to work or attend school.

According to my article, “The judge, by his omission, renders justice legally blind as far as the inmate is concerned. The legally blind can innocently be a detriment to those around them.”

A3N: What legal processes to do you propose in your article for remedying the prolonged solitary confinement crisis in US prisons and making prison authorities more accountable?

AB: The article actually contains proposed legislation. It is my hope that legislators, courts and prison administrators all across the country will use it as written or in spirit to cause legislative and policy changes. I advocate:

• An end to prolonged solitary confinement.
• That inmates be given a case plan upon placement into solitary confinement.
• That inmates be only placed in solitary when a specific, actual, and legitimate security or penological concern exists.
• That inmates in prolonged solitary confinement have access to some programs and services.
• That a burden of proof be met during the periodic review process.
• That, after one unfavorable review, a seven-member special review board be empanelled.
• That courts engage in a more substantive review.

A3N: Anything else to add for the interview?

AB: Yes, three final points.

If we are a Christian nation, shouldn’t we act like Christ? Christ was a defense attorney to victims of human rights violations, as well as to the poor and downtrodden. What is happening where solitary confinement is concerned is a “human wrong.” As a nation, we must give thought to this.

I was amazed to discover in my research the existence of standards governing how shelter animals must be housed and how research animals must be treated. The protections are greater than what is now in place for the HUMAN BEINGS that are subject to prolonged isolation. Where is the outcry?

In doing community outreach work on behalf of the Angola 3, people often offer prayers and express gratitude for the work that is being done in this regard. The prayers are valued. The expressions of support are appreciated, but they often leave me wondering what that individual is doing while other individuals are doing this work. I consider what their talent might be and wonder if it is the one I lack. I ponder if I could or would indulge myself in what it is that they do if I weren’t doing this work and ask if they would do this work if they didn’t feel safe that it was getting done by those of us who do it? Talent and commitment stacked side-by-side could circle the globe and bring social change with it. Talent unwedded to commitment creates an era of stagnation. If resistance is shackled away behind bars and stagnation is roaming free, we are left to discern who dwells in a cell and whose dwelling is, in fact, a cell.