Unavoidable Violations, Unfair Process, Inhumane Punishment
In past blogs, we’ve written on the torturous conditions of long-term solitary confinement (defined as 15 or more consecutive days) in North Carolina, how the current practice is susceptible to racial bias and disproportionately used against people of color, and its devastating impact on young adults. Now, we’d like to discuss some of the disturbing reasons incarcerated people get sent to solitary for weeks, months, and years at a time.
Because the vast majority of incarcerated people will return to their communities, the NC Department of Public Safety (DPS) policies allowing long-term solitary confinement directly affect public safety. Studies show that people who spend any time in solitary have higher recidivism rates than those who did not, and are more likely to die within the first year of release, from suicide, homicide, or opioid overdose. The overuse of solitary confinement is an issue North Carolina must address.
Many people are placed in long-term solitary confinement due to incurring some type of rule infraction. However, many DPS Rules are so vague that a person could be in violation without intending to break the rules, or even knowing they were breaking the rules. This results in a prison disciplinary system where everyone, at all times, is at risk for being tortured by long-term solitary confinement, and is ripe for implicit racial bias.
Minor Infractions, Torturous Punishments
While some infractions are serious, DPS policy also punishes people with long-term solitary confinement for infractions that would be equivalent to misdemeanors or non-criminalized behavior outside of prison. Under current policy, people in custody can be punished with solitary confinement for 20 days for using profane language, delaying work while on assignment, losing state property, or possessing a significant amount of tobacco.
In Fiscal Year 2019-2020, “Disobey Order” was the most common infraction, accounting for around 25 percent percent of all infractions. DPS policy defines this infraction as to “willfully disobey, [or] fail to obey an order.” This allows a person who isn’t even aware they are failing to obey an order to be severely punished.
For instance, imagine you are going through the chow line, getting your food as normal, and continuing on to find a seat. An officer behind you orders you to stop and turn. You do not hear the officer in the crowded mess hall and continue on. Under current policy, you have just disobeyed an order, and could be subjected to 20 days in solitary confinement. DRNC has seen this type of scenario affect people with hearing disabilities who are accused of disobeying an order they did not, and indeed physically could not, hear.
Multiple DPS infraction policies are overly broad and can be interpreted to criminalize almost any behavior, no matter how benign. For instance, say you wake up at night and hear your cellmate “Tim” struggling to breathe. You know Tim has a history of cardiovascular issues. You call out to the officer on duty, “Sgt. Wilcox,” for help. Caught up in the moment and wanting to convey a sense of urgency, you yell “Wilcox, Wilcox help, Tim’s having a (expletive) heart attack, you need to get someone in here now.”
You are now potentially guilty of using profane language (20 days in solitary) and using disrespectful language by not addressing Wilcox as “Sgt. Wilcox” (20 days in solitary). If you happen to be undressed when the sergeant comes to the door, you could be guilty of indecently exposing yourself (30 days in solitary).
If it turns out that Tim was not in any real danger (just coughing or having a bout of sleep apnea), you could be found guilty of interfering with a staff member in the performance of their duties (20 days in solitary). If you shake or pound on the cell door to get Sgt. Wilcox’s attention, you could be guilty of attempting to tamper with or damage state property (20 days in solitary). If Sgt. Wilcox decides that your cries for help were a part of some ill-conceived plan to assault staff or escape prison, you could be found guilty of attempting to escape or assault staff (30 days in solitary). If you keep asking for help after Sgt. Wilcox tells you to quiet down, you could be charged with disobeying an order (20 days in solitary).
These vague rules allow correctional staff to charge anyone with a variety of offenses for even benign behavior, or to create conditions where it is impossible not to break a rule. For example, it is an infraction to possess “any object that could aid in an escape”(emphasis added). This infraction is not limited to banned items or contraband, and can result in 30 days of solitary confinement. In other words, any object given to you in prison, or that you buy in the commissary, could potentially violate this rule. Bed sheets could be tied together to make a rope, a pencil could write a note to co-conspirators, pieces of paper could be folded to create a door jamb. Anything a person needs to exist in prison potentially violates this rule, depending on the context a correctional officer applies to the situation.
Punished by Perception
You may notice that the fictional Sgt. Wilcox could choose to ignore any of these potential infractions or bring them forward as a serious charge. DPS policies can be divided into two different types of infractions: “discretionary” infractions, based on interpretations of behavior; and “substantive” infractions, such as possession of a controlled substance, which requires physical proof.
Discretionary infractions allow implicit (unconscious) racial bias into the DPS disciplinary system. Indeed, a 2014 a comprehensive study of the NC prison systems by the University of North Carolina (UNC) found that “[w]henever a Black inmate is being punished in our prisons, it is more likely that he or she is being punished for a ‘discretionary’ infraction that leaves much to the officer’s interpretation. Whenever a [w]hite inmate is punished, it is more likely to be for a ‘substantive’ infraction that relies on physical evidence rather than merely an officer’s perception.” The study revealed for Black males, 36% of total infractions were for “discretionary” infractions compared to 26% of total infractions incurred by white males. Discretionary infractions made up 49% of total infractions Black females received, and only 38% of infractions white females received.
Even more concerning is that people can be sentenced to long-term solitary confinement without even committing an infraction. Anyone in DPS custody can be placed in High Security Maximum Control (HCON) or Restrictive Housing for Control Purposes (RHCP), the two most restrictive custodial settings, without ever having received an infraction. DPS policy allows prison staff to put someone in long-term solitary confinement “in cases where there has been no overt act of violence and no offense has been proven when the officer in charge has good cause to believe that in light of all circumstances, the offender’s presence in the general population poses a clear and present danger to the physical well-being of other offenders or members of the staff.”
In other words, anyone in DPS custody can be tortured in solitary confinement for months or even years on end based solely on how dangerous prison staff perceive them to be. This is yet another place in the disciplinary system where implicit racial bias can infect disciplinary decisions and lead to the realities that we see in DPS facilities today: a disproportionate number of people of color being tortured in solitary confinement. These policies violate a fundamental principle of justice by creating a system where people are punished based on perception, not what they have done.
The flaws in the DPS disciplinary process also exist in our state justice system. However, a person unjustly charged with a crime would rely on the due process of our criminal courts and could, ultimately, appeal to a jury of their peers to vindicate their innocence. Despite its flaws, the US and NC court systems require due process, meaning broadly that in every case the accused has rights, including the right to a lawyer and a trial by jury. Courts must operate fairly, and there are checks on the otherwise unlimited power of the state to convict and punish. In NC’s prison system, those charged with infractions have minimal due process protections.
As outlined in UNC’s extensive report, incarcerated people are not entitled to legal representation or a jury trial before being sent to solitary confinement. They have limited time and few avenues or resources available to gather evidence in their defense. The witnesses against them can remain anonymous, and prison staff are often the accusers, witnesses, and judges in any given case. Without a proper defense, impartial jury, and facing infractions that require little to no proof of wrongdoing, most people accused of infractions are facing a guaranteed guilty verdict.
Indeed, a guilty finding is almost a foregone conclusion in NC DPS hearings. In the DPS infraction system, less than one percent of hearings end with a non-guilty verdict. By contrast, in NC’s court system, 22.9 percent of felony cases that go to trial receive a Not Guilty verdict. For misdemeanors, 36.2 percent of cases end with a Not Guilty verdict. In addition, people facing prison infraction charges may be easily enticed to plead guilty, regardless of actual guilt, if offered lenient sentencing in exchange for a guilty plea.
Ensuring Public Safety
NC Governor Roy Cooper’s Task Force for Racial Equity in Criminal Justice (Task Force), established in the summer of 2020, heard from witnesses and stakeholders throughout NC’s entire criminal justice system as it conducted its work. That body’s December 2020 findings and recommendations included a focus on the use of solitary confinement.
The Task Force recommended “hard limits” of no more than 15 consecutive days of solitary confinement and noted, “Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”
The Task Force also recommended a reduction in the kinds of infractions that can lead to solitary confinement, such as using profane language, “general dangerousness,” and the unauthorized use of tobacco.
Importantly, the Task Force wrote, “[c]hanging the state’s use of Restrictive Housing could significantly impact recidivism rates and improve public safety. Likewise, reviewing the process by which disciplinary proceedings are conducted could also result in a decrease in the numbers of people placed in Restrictive Housing. Increasing due process for individuals charged with infractions, in addition to reviewing the prison’s Security Risk Group program, might also reduce the racial disparities seen in custody classifications.”
The torture of long-term solitary confinement is never an acceptable punishment, especially in a prison system that subjects people to an unbalanced disciplinary system and produces unacceptable disproportionate outcomes for Black people.
Help stop torture in NC prisons
Join us in supporting the Task Force’s recommendations to eliminate the use of long-term solitary confinement altogether (see recommendations 105-110).
Tell Governor Cooper to implement the Task Force’s recommendations to end long-term solitary confinement in North Carolina prisons: https://governor.nc.gov/contact/contact-governor-cooper
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- The following passage, including the names and scenario, is completely fictional.
- This data was gathered using NC Judicial Branch’s court disposition analysis tool.