Solitary confinement by any other name …

[dropcap]J[/dropcap]ames Sardakowski underwent his first inpatient treatment for mental illness at age seven. Now, at 28, he’s in prison in connection with an abuse case that resulted in a child’s death. He has been kept in solitary confinement for four years.

Sardakowski has described his cell as “no bigger than 4 steps of mine . . . It’s always back and forth.” Inside it, he’s permitted two books. He chose the Bible and a dictionary. The dictionary got confiscated after Sardakowski’s repeat readings more or less destroyed its pages.

Prisoners in what Colorado’s Corrections Department officially calls “administrative segregation” are kept in a single small cell 23 hours out of the day, with only brief interactions with the officers who pass them their food and mail through slots in their door or chain them up and escort them down the hall for their 24^th hour in an exercise cage. Courts have routinely ruled that the use of “ad seg” on the mentally ill breaks the constitutional protection against cruel and unusual punishment. The American Psychiatric Association, the American Public Health Association and the Society of Correctional Physicians all have condemned the practice because of its negative effects on mental health.

“Not surprisingly, since being placed in an isolation cell the size of a Chevy Suburban, Mr. Sardakowski’s already-fragile mental condition has deteriorated. He has repeatedly tried to castrate himself, bangs his head against the wall, and bites his lips and hands until he bleeds,” his lawyer, Laura Rovner, testified before the Colorado Legislature last month.

On Tuesday, lawmakers on Colorado’s House Judiciary Committee unanimously passed SB 64, a measure to prohibit seriously mentally ill state prisoners from being housed in solitary confinement. The Senate already passed the bill unanimously. The proposed law is fast-tracked and likely to hit the House floor –and even the Governor’s desk — before the month is out.

On the face of it, SB 64 is a tremendous win for legal advocates like Rovner and those at the American Civil Liberties Union of Colorado who have been advocating the issue on behalf of sick prisoners for years. It’s also a way to honor the memory of Colorado’s former Chief of Corrections Tom Clements, a fierce advocate for cutting Colorado’s overuse of “ad seg,” especially among the mentally ill. Clements was gunned down last year by Evan Ebel, a prisoner with serious mental illness who, shortly before his shooting spree, was released directly into the community after spending years in solitary confinement.

In grievances to the Corrections Department, Ebel warned that he was too dangerous to be set free without a program re-acclimating him to human contact. Those grievances — lodged in the months before Clements’ murder — went ignored by prison officials even though Clements had made it a top priority to use step-down programs before releasing prisoners from long-term isolation.

Clements’s successor, Rick Raemisch, has promised to continue Clements’ efforts in Colorado. Raemisch penned an editorial for The New York Times about having voluntarily spent 20 hours in solitary confinement to experience the isolation first-hand. After less than a year heading Colorado’s prison system, he has become perhaps the leading voice among corrections officials nationally decrying the use of ad seg for the mentally ill. His stance is being carried out through his own regulatory powers. Still, it’s apparently not strong enough to support legislation that would set those limits in state law.

The Corrections Department has declined specific comment on its opposition to SB 64’s initial drafting, where they said the nuts and bolts of the policy should be left up to the prison system’s internal regulations. The DOC is part of the executive branch and bristles at the notion of state lawmakers legislating how it should house certain prisoners. This same opposition has been raised in other states when lawmakers considered similar mental health-based bans on solitary confinement.

Raemisch is a political appointee, serving at the will of Gov. John Hickenlooper, who has made a point of choosing corrections chiefs who share his interest in reducing the use of ad seg in Colorado prisons. There’s no telling if Raemisch’s reforms will be kept in place by a post-Hickenlooper appointee. Not cementing his policies into law leaves lingering uncertainty about the future of the reforms he has implemented. It also creates the likelihood that prisoners like Sardakowski will continue to be pin-balled from one administration’s programs and policies to the next. Civil rights advocates want lasting reform written in clearly defined language that creates as much stability and provides as much treatment as possible for mentally ill prisoners.

“Although the ACLU is here in support of this bill, I’ll be frank. The bill falls short in an important way — it lacks the definition of key terms,” Denise Maes, public policy director for the ACLU of Colorado, told lawmakers on Tuesday.

Those key terms include “serious” versus “major” mental illness – distinctions that can mean the difference between human contact and isolation for mentally ill prisoners whom prison officials deem tough to handle.

Sardakowski says that on at least 15 occasions corrections officers have pulled him from solitary confinement and placed him on “mental health watch,” restraining him in a windowless room with a belly chain, leg irons, a motorcycle helmet and tube-like mitts to keep him from self-harm. Although Sardakowski’s mental illness is often referred to as “serious,” the Department does not consider it “major” — the crucial distinction for having to pull a prisoner from solitary under the new regulations. Following those bureaucratic distinctions, current prison policies and SB 64, if it passes, wouldn’t prohibit the Department from keeping prisoners like Sardakowski in the kind of long-term isolation used before Clements and Raemisch pledged reforms.

Rovner, a clinical law professor at the University of Denver School of Law, points out an element of smoke and mirrors behind the Corrections Department’s assertion that it has lowered the number of mentally ill prisoners in solitary confinement from 140 last year to just one as of Tuesday.

“The terminology is important because it is the terminology that allows the CDOC to assert that ‘we have gotten the number of severely mentally ill inmates in ad seg down to the single digits.’ In fact, what has happened is that CDOC has created a new category of mentally ill people —those with what it calls ‘major mental illness,” she said.

While the most recent regulations for Colorado’s prisons prohibits the use of solitary confinement for prisoners with “major” mental illness, the Department actively opposed SB 64’s initial language defining what mental illness means in relation to solitary confinement as well as defining solitary confinement itself. As a result, both definitions were amended out of the bill while the Senate was considering it last month.

The definition of mental illness, unmoored from medical diagnostics written into law, could swell or contract at the Department’s whim to include a few prisoners or hundreds. By the same token, advocates for reform argue, the legal definition of solitary confinement is crucial to ending the policy in practice, not just in name.

In testifying to the issue before lawmakers on Tuesday, Maes said that when the ACLU visited prisoners who had been removed from solitary condiment to receive mental health treatment it found them “living in conditions similar to — no, actually IDENTICAL to solitary confinement.” (Emphasis hers).

Back in 2010, the department created a program called Offenders with Mental Illness that was intended to provide mental health services and a means for seriously sick prisoners to work their way out of isolation. It sounded good on paper. But in practice, treatment was scant, if not non-existent. Sardakowski was among dozens of prisoners who remained in solitary confinement in the course of what the Department itself later admitted was the OMI program’s 61 percent failure rate.

Last year, at Clements’ urging, the Department started a new approach with similar goals. Prisoners in the new Residential Treatment Program were moved into new cells to facilitate their participation in “planned incentive level systems to promote pro-social behavior and meeting targeted behavioral goals.” Under the ground rules of the new program, a prisoner with serious mental illness will be allowed back into the relative freedom of a regular prison environment if he completes the program’s eight levels.

But two problems quickly became clear. The first was that prisoners with major mental illness —severe schizophrenia or bipolar disorder, for example — have trouble stepping up the eight levels. The second was that under the eighth level, conditions in the Residential Treatment Program looked a lot like the same old solitary confinement.

Rovner sees this as a kind of catch-22 for prisoners like Sardakowski. At the lower levels of the program, conditions are virtually identical to those in which he had been living before the department started touting its reforms. Sardakowski still spends 23 hours locked each day in a single cell that’s roughly the size of the one he occupied in ad seg. He still eats alone by his toilet and is shackled everywhere he goes.

Because these conditions exacerbate the bad behavior that prevents an inmate from progressing out of the program, Rovner says some mentally ill prisoners are as trapped as they’ve ever been. The Residential Treatment Program is designed to take six months. Sardakowski was enrolled a year ago and now believes completing the eight levels will be virtually impossible for him.

Sardakowski’s mental illness has, to say the least, many of its own challenges. The carrot-on-the-stick nature of the Residential Treatment Program only adds to his frustrations.

“The staff says you go back to GP [general population] if you pass your Level 8,” he wrote. “This is like saying to me, ‘You will get released tomorrow and become the president tomorrow evening.’”

[Photo of Mr. Sardakowski’s mental health watch restraints provided by Laura Rovner]