By Anna Conley Director of the Montana Prisons and Jails Project

Hurray – there’s no solitary confinement in Montana!

According to Warden Leroy Kirkegard’s testimony on House Bill 536 before the House Judiciary Committee today, there are no prisoners held in solitary confinement in Montana. Phew. That’s good news. Wait a minute... as I recall, there are two “locked housing” units at Montana State Prison with more than 80 single cells each in which inmates are locked down in isolation 23 hours a day. Isn’t this “solitary confinement?”

It appears we may need to clarify that the definition of “solitary confinement” the rest of the world uses also applies here in Montana. "Solitary confinement" refers generally to confinement of prisoners in isolated cells for 22 – 24 hours a day with minimal sensory stimuli and little to no social interaction. This is the definition that psychiatrists use, and U.S. courts use. Warden Kirkegard conceded that those individuals housed in locked housing are locked down 23 hours a day, five days a week, and 24 hours a day on weekends, with the exception of a half-hour shower. He also conceded that they have limited visiting privileges.

23 hour lock down, whether called “disciplinary detention”, “locked housing,” “max custody” and “administrative segregation” is solitary confinement.

Warden Kirkegard assured us that “solitary confinement” is a thing of the past that is not used in Montana. Indeed, although solitary confinement has been admonished by both courts and scholars alike for more than 100 years, it is alive and well nationwide, including in MSP’s locked housing units. Despite the fact that the U.S. Supreme Court admonished solitary confinement as early as 1890, and the practice was subsequently almost completely abolished, solitary resurfaced in the 1980s, and has increased since as an overused management tool used by prison administrators in Montana and nationwide.

The DOC represented to the committee that it would not oppose the bill if it prohibited only solitary confinement for mentally ill and juveniles. However, Warden Kirkegard estimated that the prison holds at least 16 individuals sentenced to the Department of Health and Human Services as “guilty but mentally ill,” and the MSP prison psychiatrist runs a caseload of around 300 patients. He also noted that MSP’s mental health housing unit has around 10 inmates. These numbers make clear that the existing MSP housing for individuals with mental illness is woefully inadequate. As a result, MSP routinely puts mentally ill individuals in locked housing as a housing management tool. These individuals rarely have any meaningful, let alone confidential, interaction with mental health staff. Mental health visits most often consist of a knock on the cell door and a few questions within hearing of other cells, which prevents prisoners from being honest about their mental state. Not only is this unconstitutional, but it is patently non-rehabilitative, which is contrary to the basic principles of Montana sentencing law.

It is telling that instead of justifying MSP’s practice of putting inmates, including mentally ill and juveniles in solitary confinement, Warden Kirkegard simply tried to use semantics to define away the basic fact that MSP houses more than 100 inmates in 23-hour lock down, many for years at a time, and many of whom have established mental illness.

Though the committee voted down the bill, today’s hearing gave legislators a first look at how solitary confinement is used in Montana, how it impacts prisoners and how it impacts our communities. That’s good. But in order to have a productive conversation about solitary confinement, we need to make sure we have an honest conversation.