Infusing discipline with dignity

Basing a prison system on the principle of human dignity will not eliminate the need for discipline. Even when people are treated with respect, there will be inevitable breaches in prison rules and regulations ranging from small infractions, such as failing to report to school or work, to more serious and disruptive behavior that threatens the safety of others. The disciplinary procedures commonly employed in the United States tend to use sanctions that over-emphasize security, control, and punishment and are often disproportionate or excessive—in length and severity—to the infraction or to what is necessary to achieve order and security. For instance, sending people to lengthy periods in solitary confinement—the most severe disciplinary sanction—is too often used as a routine management strategy in response to all types of disruptive behaviors, including in some places for minor rule-breaking such as talking back.For such a finding in five jurisdictions, see Léon Digard, Elena Vanko, and Sara Sullivan, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems (New York: Vera Institute of Justice, 2018), 15 & 17. Also see Alison Shames, Jessa Wilcox, and Ram Subramanian, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives (New York: Vera Institute of Justice, 2015), 12-17,  Other sanctions commonly used include restricting or removing visiting, telephone, or correspondence privileges; restricting activities such as school or work; adding extra work details; confining people to their quarters; removing recreation time; requiring restitution; and mandating letters of apology or other writing assignments.See for example Washington Department of Corrections, Prison Sanctioning Guidelines (DOC 320.150 Attachment 2), on file with Vera. Also see Montana Department of Corrections, “Policy No. 3.4.1: Institutional Discipline,”

So while prison discipline will still necessarily exist, disciplinary actions must be grounded in human dignity. Under a framework of human dignity, people in prison are not granted privileges at the discretion of the prison authorities; rather, they are bearers of innate, inviolable rights. As such, sanctions that restrict an individual’s rights must be applied in proportion to the infraction and using the least intrusive means available.People are more likely to view the sanctioning system as procedurally fair when rules and the consequences of violations are explained in advance, and when sanctions are imposed consistently but with an appropriate level of officer discretion. Council of State Governments, Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community (New York: Council of State Governments, 2005),; and Adele Harrell, Shannon Cavanagh, and John Roman, Final Report: Findings from the Evaluation of the DC Superior Court Drug Intervention Program (Washington, DC: Urban Institute, 1998),  If the disciplinary sanction infringes on an aspect of human dignity, the system must ensure that the policy is narrowly tailored to achieve a legitimate goal.The proposed standard is similar to the “least restrictive means” standard used in the strict scrutiny test employed by U.S. courts when examining laws that restrict constitutional interests. The Supreme Court contemplated in United States v. Carolene Products Co., 304 U.S. 144, 152, note 4 (1938), that when the government established laws restricting the exercise of rights particularly guaranteed under the Constitution, those laws would be subject to higher standards of review. In Korematsu v. United States, 323 U.S. 214, 216 (1944), the Court established a rough outline of what would come to be known as strict scrutiny: “pressing public necessity may sometimes justify the existence of such restrictions.” The better description is that laws restricting rights guaranteed under the first 10 amendments, the 14th Amendment, or applied to “suspect classes” such as race, religion, or national origin, must be “narrowly tailored measures that further compelling governmental interests.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). That is, the law must provide the least restrictive means of achieving the compelling governmental interest at hand. See Adam Winkler, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts,” Vanderbilt Law Review 59, no. 3 (2006), 793-873, 800-01,  Systems of discipline within a human dignity-based prison could include the practices below.

  • A structured sanction grid that provides corrections officers with guidance on appropriate and proportionate punishments for particular behaviors.Shames, Wilcox, and Subramanian, Solitary Confinement, 2015, 15. These are currently used by many facilities in the United States. They delineate when less restrictive sanctions may be used and when more serious sanctions are appropriate. Less restrictive sanctions could include requiring mediation or anger management classes, withholding access to the commissary, removing television privileges, or making the person responsible for the costs of damaged property.Many European countries follow these approaches. For example, Dutch and German prison officials prioritize sanctions such as reprimands, restrictions on money and property, and restrictions on movement or leisure activities. These countries also ensure that the sanction lasts for a short and finite amount of time and is directly related to the alleged infraction. For example, if the person has problems interacting with others held in the prison, then the measure will address that behavior; if the violation relates to money, prison authorities will restrict—for a limited time—a person’s access to funds (although not in ways that would impact access to basic necessities). See Ram Subramanian and Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States (New York: Vera Institute of Justice, 2013), 13, More restrictive sanctions could include revocation of good time credit—credit earned through participation in in-prison programming or through compliance with disciplinary rules that can be used to shave time off a prison sentence.Alison Lawrence, Cutting Corrections Costs: Earned Time Policies for State Prisoners (Washington, DC: National Conference of State Legislatures, 2009), Also see A. Mitchell Polinsky, “Deterrence and the Optimality of Rewarding Prisoners for Good Behavior,” Stanford Law and Economics Olin Working Paper No. 478 (2013),; and Michigan Department of Corrections, “Incentives in Segregation Pilot Project,” February 3, 2012, on file with Vera.
  • A rewards grid for positive behavior.Eric J. Wodahl, Brett Garland, Scott E. Culhane, and William P. McCarty, “Utilizing Behavioral Interventions to Improve Supervision Outcomes in Community-Based Corrections,” Criminal Justice and Behavior 38, no. 4 (2011), 386-405, 399-400 (finding that administering rewards in proportionally higher numbers than sanctions produced the best results, especially when a ratio of four or more rewards for every sanction was achieved). While many states currently provide incentives for program completion and good behavior, the rewards are received far in the future—usually in the form of reduced incarceration time (good time credit).See note g, above. People accustomed to precarious environments often have difficulty associating remote rewards with immediate behavior and, because of the nature of the current prison system, many incarcerated people have a history of living in such environments.Jessica McCrory Calarco, “Why Rich Kids Are So Good at the Marshmallow Test,” Atlantic, June 1, 2018, A dignity-centric disciplinary system could incorporate more short-term positive reinforcement or incentives to encourage compliance with rules and regulations and facilitate more constructive interactions among the institution, staff, and incarcerated individuals.These positive response grids are in use in some community corrections agencies in the United States today. They typically include the provision of small rewards for achieving supervision goals, such as offering positive feedback or other forms of community recognition, lengthening or eliminating a curfew, or relaxing other reporting requirements. See Peggy McGarry, Alison Shames, Allon Yaroni, et al., The Potential of Community Corrections to Improve Safety and Reduce Incarceration (New York: Vera Institute of Justice, 2013), 19, Simple rewards such as positive feedback from corrections staff or recognition from the prison itself could be included in this grid, as well as commissary benefits or increased visitation privileges. 
  • Strict limitations on the infractions that result in solitary confinement and in the duration of time spent in these units.There is mounting evidence of the inhumane practices of and harmful outcomes produced by solitary confinement. See for example Shames, Wilcox, and Subramanian, Solitary Confinement, 2015. These standards are the norm in some Western European countries—for example, by statute, solitary confinement per incarcerated individual in any given year cannot exceed four weeks in Germany and two weeks in the Netherlands.In these countries, it is not unusual for solitary cells to go unused throughout an entire year. Moreover, those in solitary confinement must be provided with meaningful contact with others, as well as access to programming and treatment.