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The Legislature has passed and presented to the governor Assembly Bill 314, which would restrict the use of isolated confinement (commonly referred to as “solitary confinement”) in New Jersey prisons and jails. We urge Gov. Murphy to sign the bill without delay.

There is a developing (and some might say developed) consensus among medical, psychological and legal experts that prolonged isolated confinement amounts to a form of torture. Whether or not it is judicially found to violate the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution, the Legislature wisely found that restrictions on its use were “consistent with the New Jersey Constitution, the laws and public policies of this State, the mission of the correctional system, evolving medical knowledge, and human rights standards of decency.”

The bill prohibits the use of isolated confinement unless there is reasonable cause to believe that the inmate or others would be at substantial risk of immediate, serious harm as evidenced by recent threats or conduct, and any less restrictive intervention would be insufficient to reduce that risk. With some exceptions, the bill provides that the correctional facility shall bear the burden of establishing this standard by clear and convincing evidence.

Inmates placed in isolated confinement are not to be held there for more than 20 consecutive days, or for more than 30 days during any 60-day period. The bill also prohibits the use of isolated confinement for members of vulnerable populations, including juveniles, those age 65 or older, persons with mental, developmental or physical disabilities, and pregnant women or those who have recently given birth, and perceived LGBT persons.

The bill defines isolated confinement as “confinement of an inmate in a correctional facility, pursuant to disciplinary, administrative, protective, investigative, medical, or other classification, in a cell or similarly confined holding or living space, alone or with other inmates, for approximately 20 hours or more per day with severely restricted activity, movement, and social interaction.” (It is therefore not limited to the literal definition of “solitary.”)

In 2016, Gov. Christie vetoed an essentially identical bill, in a veto statement that was regrettably short on fact and reason and long on political diatribe. Gov. Christie's claim was that “This bill seeks to resolve a problem that does not exist in New Jersey, because the Department of Corrections in this Administration does not utilize isolated confinement, as contemplated by the bill.” Gov. Christie further complained that “This is not a bill; it is ill-informed, politically motivated press release by a prime sponsor [former Sen. Ray Lesniak] who proves once again, that he has no idea about law enforcement or what is being done by the very department he proposes to further regulate.” We hope that Gov. Murphy takes a less jaundiced view of the Legislature's motives.

The contention that New Jersey's institutions do not currently make use of a form of segregation that would meet the definition of isolated confinement contained in the bill is, quite frankly, incredible. Whether one calls it “restrictive housing” (as the current DOC acting commissioner has somewhat defensively labelled it) or “administrative segregation,” “protective custody,” “temporary closed custody,” or “management control unit,” or some other euphemism, is simply an exercise in semantics. Prolonged use of isolation is a current fact of life in New Jersey institutions. While this bill would not eliminate the use of such techniques, it at least would hold corrections officials accountable to enforceable standards that protect against abuse. Such official accountability is a necessary component of any government restrictions on liberty, even when, and indeed perhaps especially when, the intended subjects are incarcerated inmates.