ACLU: What does Herman Wallace and Albert Woodfox’s case say about the use of solitary confinement in the U.S.?
Nick Trenticosta: What it says is that there has not been advocacy for solitary confinement inmates up until very recently. There’s not been an awareness of the problems solitary causes for everybody involved. The prison officials have not been challenged, so they can just do what they want to do.
ACLU: What do you think about solitary? Is there ever a time when it’s reasonable to use it?
NT: There are certainly times where a person should be put into a restrictive setting, so that safety issues are taken care of. And that would be solitary for the person who may suffer from other people, as well as other prisoners suffering harm from the person put in solitary confinement.
I don’t think it should never be used. It should be used only in extreme situations that there’s no other way to provide safety to inmates. And it should also be used sparingly in terms of time, because you should be able to quash any safety problem in relatively short period of time.
But what seems to be the problem…is there are no objective criteria that are used to determine whether the person should be released from lockdown or solitary. In Albert and Herman’s case, and I know in other situations as well, the reason that they continue to be denied release is because of the original reason for lockdown. Now, the original reason will never ever change, therefore they never have an opportunity for release.
It’s like a parole board saying we can’t grant you parole because of your crime. Well, I’m incarcerated because of my crime. That will never change. I, as a human being, have changed. I now have an education, I now have college courses, I’m the president of the drama club. I’m a good guy, I don’t get write-ups. I have changed. The crime will never change and if you don’t consider me, you should just abolish parole.
That’s the same with Herman and Albert, and they cannot change that fact. And so we have pushed in our lawsuit that injunctive relief for these guys should be that the system develops objective criteria both on the positive side and the negative side to then have review boards weigh those each individual factors and forget about [the] reason for original lockdown.
ACLU: Are you seeing that in other cases in Louisiana, or around the country, where there’s that kind of Catch 22?
NT: We have guys in solitary here in Louisiana for not 40 years, but 15 years, 18 years, 22 years, and the original reason was an escape attempt. Well, that fact can never change. Angola is the most secure penitentiary, at least they say so. Nobody ever escapes from Angola. They won’t let the fellow out because one time he tried to escape. He wasn’t successful.
ACLU: When you talk about setting up those kinds of review boards, would that also be to figure out who’s going into solitary, and why they’re being put in? The system seems to be so arbitrary.
NT: First of all, with the review board in most institutions – and I would venture to say all institutions – there is periodic review. In Herman and Albert’s case, it’s every 90 days, which has occurred every 90 days for 40 years. So the boards are in place, but the criteria are not in place. Therefore, it’s never a meaningful process. It’s a sham.
Sometimes you’ve just got to move quickly. But sure, once corrections officials decide this guy needs to be placed into solitary, well, there should be a review within two weeks. What are the facts of the case? Did the corrections officials make the correct determination two weeks ago? If so, that criteria is certainly different from the criteria that would be used to release somebody out of solitary. What are the facts that led to this guy being placed in solitary? Is it proper? Are there guidelines we have in place for who should go? Were they fulfilled? And if at first review, everything looks good, well then, in 90 days or 60 days let’s now apply the criteria of should they be kept? Or should they be put into another 90 day review process?
In many ways, you know, it’s like unconstitutional sentencing. A judge in Louisiana sentences a convicted felon to hard labor at Angola. The judge is not sentencing people to solitary confinement. And in most of these guys’ cases, the prison officials determining that the punishment needs to be different than what the court set forth, it’s just unconstitutional. They shouldn’t have that power unchecked. And again, if there are safety concerns that need to be addressed, well, deal with it. But as soon as that’s addressed, then go a different route and take the guys out of solitary.
ACLU: If you are successful in Herman and Albert’s case, do you think that it will be precedent-setting? Will it have an effect on how other states deal with solitary?
NT: It certainly will. Because when we prevail in this lawsuit, the defendants will be obligated to pay our attorneys’ fees, and that is a lot of money. It’s not just attorneys’ fees, it’s the experts that we’ve brought into the case, etc.
When we prevail in Herman and Albert’s case, it’s fully believed that that’s going to send a loud message to people and other institutions: you’re going to have to rethink your situation quickly or you will be obligated to pay a whole lot of money. And as we know one of the most effective ways to keep a government official accountable is to take their money from them.
But the other thing of course is the discussion greatly expands when [Herman and Albert] prevail. It has to. Not just within the legal community or the corrections community, but also in the public at large. People have to be able to look at this and say this just isn’t right. Unless you can justify this craziness you just have to stop it.
This interview has been edited and condensed for clarity.