Not Even a Lawyer Can Get You Out of Solitary Confinement

A former Massachusetts inmate describes a prison disciplinary system with unchecked power.

A tiny jail cell with a cot on one side and some plastic tubs on the other.
A solitary confinement cell at New York’s Rikers Island jail. Reformers are working to limit the use of solitary confinement in U.S. jails and prisons, including those in Massachusetts, citing the severe psychological harm caused by the practice. AP Photo/Bebeto Matthews, File

On a recent episode of Hi-Phi Nation, Barry Lam investigated the black box of solitary confinement policy. In the Massachusetts Department of Correction system, solitary is known as the Department Disciplinary Unit, or DDU. It’s a prison within a prison where each person is isolated in a cell no larger than a parking spot. In this excerpt, Lam talks to Erick Williams, who spent eight years in solitary because of one incident in a chow hall; Lisa Newman-Polk, who represents clients in solitary; and state Sen. Jamie Eldridge, who co-chairs the Massachusetts Legislative Criminal Justice Reform Caucus. This transcript has been condensed and edited for clarity.

Barry Lam: When you’re faced with charges of wrongdoing on the outside, in principle there’s due process, defense counsel, prosecutorial burdens of proof, judicial review. On the inside, it begins with a ticket.

Erick Williams: When you catch a ticket, the CO [correction officer] just writes up whatever he wants to write up, and it’s your word against his. They hear the evidence, you could call witnesses, but there’s a box that says “referred to the DA,” to the district attorney. So what you say in defense or trying to plead your case at this hearing in jail can ultimately be used against you in a criminal court. So it’s better not to say anything. If you say, “I hit him because he hit me,” or whatever, you’re admitting to it. They’ll then take you to court, and you can get more time in court.

Lam: So court is riskier than saying nothing?

Williams: Because you know what’s gonna happen is I’m gonna be here, they’re gonna send me to the DDU, but I’m not gonna get more time in a criminal court.

Lam: I see. So anybody who goes in this hearing is thinking about the extension of their criminal sentence versus the time spent in DDU?

Williams: Right. Once you have a DDU ticket, it’s kind of a given that you’re going. The same special hearing officer would be having lunch with the officers that wrote the ticket.

Lam: So you’re pleading your case before a CO? He’s not a judge?

Williams: No, he’s not a judge. [The special hearing officer] is just the correction officer whose job is to hear the DDU hearing. Even for a minor infraction, if the CO decides to refer it to DDU, then you know you’re going to DDU. The most they can give you for a single incident is 10 years, but while you’re there, they can give you another 10 years if you pick up another incident, so you have 20 years.

Lisa Newman-Polk: The bottom line is I really can’t do anything.

Lam: Lisa Newman-Polk is an attorney and social worker who has clients who have been in DDU or may be placed there. She knows firsthand just how powerless anyone is on the outside to challenge the Department of Correction on their disciplinary procedures.

Newman-Polk: I can write letters, and that’s meaningful to my client, but nobody has to listen to anything I have to say.

Lam: Maybe some of the punishments are justified. Maybe some aren’t. The point is that neither as a lawyer nor as a social worker is there anything Lisa can do to investigate or defend her clients from any of it.

Newman-Polk: If someone’s been sentenced to the DDU for five years, there is zero I can do to stop that from happening. And if there’s mistreatment, yes, I can certainly write letters about it, but in Massachusetts the courts basically said once somebody is inside it’s an administrative issue, and if they feel that somebody needs to be placed in solitary confinement, then that is up to them.

Lam [to state Sen. Jamie Eldridge]: Who has the most power right now in stopping the practice of long-term solitary confinement in Massachusetts?

Jamie Eldridge: The Department of Correction does.

Lam: Because the Department of Correction has complete discretion over the use of solitary confinement, they can end it right away. There doesn’t need to be a law passed or a governor’s instruction. But it’s not happening. Any progress is incremental.

Eldridge: Last session, when the Legislature took up criminal justice reform, we did include legislation that would require a 90-day review for every person put in solitary confinement, as well as access to canteen, education, and also getting out of that cell at least three hours a day. And so those things became law.

Lam: Who’s doing the 90-day review?

Eldridge: Well, that’s part of the problem: The 90-day review is done by the Department of Correction. But I just recently visited MCI–Cedar Junction, formerly Walpole and MCI-Concord, and met with prisoners who’ve been placed in solitary confinement, and many of them said that the review was really just a piece of paper stamped “rejected” or “approved,” there was no hearing, or many of the prisoners who had been in solitary a number of months had not even had a review.

Lam: Ideally, who would be doing the review? What would you want to happen during that review period?

Eldridge: What we’re asking for now is that a prisoner is provided counsel, a lawyer provided for those reviews; that those reviews happen in person; and that the prisoner has the right to call witnesses. Because often, if it’s “he said, she said” and the Department of Correction is making the accusation, it’s really not a fair process for the prisoner to make his or her case about why he or she should be sent back to the general population.

Lam: I heard that you tried to spend the night at DDU or one of these institutions. Is that true? Can you tell me about that?

Eldridge: Yeah. So around December 2016, [state] Sen. Will Brownsberger and I asked to be placed in a solitary cell at the DDU. We were denied by the DOC saying “it was not safe for us”—which is slightly ironic. If legislators or anyone is not safe in the solitary unit, I think it speaks to the basic failures of solitary and the need for more programming and a more supportive approach for people that may be acting out in prison.

Lam: Did you buy what they said about it not being safe for you, or do you think something else is going on?

Eldridge: Not really. I assumed it was just that they didn’t want legislators having such a direct interaction with prisoners. As much as I am by law able to go into any prison—and I recently did have one-on-one confidential meetings with prisoners—I can’t emphasize enough the power dynamic between Department of Correction staff and prisoners, everything from access to canteen, to the kind of food they get, to also more serious concerns about how they’re treated in their cells.

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