Photo by Mac Smiff

Oregon among states not in compliance with United Nations Nelson Mandela Rules on the treatment of prisoners.

Oregon allows for up to 36 days in solitary for first degree “Disrespect” and first degree “Disobedience of an Order.”

States like Nebraska and Washington do not allow for use of solitary confinement as a form of punishment. Others, like California (10 days), Colorado (15 days), Idaho (15 days) and New York (15 days) permit it, but limit its use. Oregon’s own Youth Authority ended use of disciplinary solitary for youth in 2005, a policy that was made permanent in 2017.

Unlike the Oregon Department of Correction (ODOC), these states have taken steps to comply with United Nations Nelson Mandela Rules on the treatment of prisoners and the American Bar Association recommendation that solitary be limited to 15 consecutive days.

A legal challenge, filed last week, now aims to bring Oregon up to standard by ending all use of solitary confinement as a form of punishment. The challenge, filed by attorneys with the Oregon Justice Resource Center (OJRC), also requests the Oregon Court of Appeals immediately limit the ODOC’s use of solitary for punishment to 15 days, while the case progresses in court.

How solitary works in Oregon

In Oregon, a system of tiered sanctions regulates solitary. Level 1 offenses can land inmates in solitary for up to 120 days, with Level 2, Level 3 and Level 4 offenses being punishable with up to 60 days, 28 days and 15 days, respectively. Stays of up to 180 consecutive days are made possible by use of “consecutive sanctions” and use of other sanctions to increase confinement by 50 percent.

Under the system, first degree “Disrespect” and first degree “Disobedience of an Order,” can land someone in solitary for up to 36 days, according to ODOC materials filed in court.

These offenses are defined as follows:

Disrespect I: When an inmate “directs hostile, sexual, abusive, or threatening language or gestures (verbal or written) toward or about another person that involves racial, religious, or sexual harassment or a physical threat to the other person.”

Disobedience of an Order I: When an inmate “refuses to promptly or in a timely manner comply with a valid order, which creates a threat to the safety, security, or orderly operation of a facility.”

According to ODOC materials filed in court, these regulations advance ODOC policy “to promote and reinforce pro-social behavior.”

OJRC argues ODOC’s use of solitary for punishment exceeds its authority and violates the Oregon Constitution’s ban on “cruel and unusual punishment” and “unnecessary rigor,” or excessively harsh punishment.

“ODOC’s use of solitary breaches…constitutional provisions and exceeds the authority granted to ODOC by the Legislature to use appropriate discipline,” OJRC wrote in a statement.

ODOC could end this paradigm of solitary on its own, says OJRC. “No legislation is needed to end the practice of using solitary confinement in Oregon prisons. ODOC has the power to make this change at any time,” writes OJRC.

A ODOC spokesperson told WOHM that ODOC “looks forward to responding to OJRC’s claims in court” and pointed to a December 2020 change to its prison hearing process that it says has resulted in fewer stays in disciplinary solitary. “​​Before the rule change,” the spokesperson told WOHM, “we issued an average of 542 Disciplinary Segregation (DS) sanctions per month.” (One inmate can get multiple sanctions.) “After the change it was 367 per month,” the spokesperson said. This is a 36 percent reduction, but accounting for a dip in Oregon’s prison population, the change is 25 percent.

“Segregation,” the spokesperson told WOHM, “is a tool of last resort, but a sometimes necessary tool in order to operate prisons safely.”

Time in solitary

OJRC, which works with prisoners throughout the state, details logistics of what it’s like to be in solitary in Oregon:
“People are confined to a cell for up to 24 hours a day but typically at least 23 hours a day. They are allowed 40 minutes, five days per week for exercise outside the cell. If they want to shower or shave, they can only do so within their exercise time. Other than the exercise periods, the only times a person will leave their cell are for medical care, very limited visits, meetings with their attorney, or a court hearing.”

Risks of not ending or limiting solitary

Solitary confinement is linked to torture. “The severe and often irreparable psychological and physical consequences of solitary confinement and social exclusion are well documented and can range from progressively severe forms of anxiety, stress, and depression to cognitive impairment and suicidal tendencies,” Nils Melzer, UN Special Rapporteur on torture has said. “This deliberate infliction of severe mental pain or suffering may well amount to psychological torture.”

“It is not even effective in achieving the goals that ODOC has for it,” said Ben Haile, Senior Counsel at OJRC’s Civil Rights Project. “It increases violence, rule breaking, and recidivism. It blocks reform, rehabilitation, job training, taking personal responsibility, and being accountable for one’s actions.”

Additionally, when prisoners represent themselves in court — as many do through “pro se” representation — being placed in solitary can dually mean locking up an inmate’s attorney.

The OJRC case challenges ODOC’s use of solitary as a form of punishment. The case would not impact ODOC use of solitary through “special housing classifications.”