Christine McCarthy
Christine McCarthy is a senior lecturer at the Wellington School of Architecture at Te Herenga Waka-Victoria University of Wellington, where her research includes prison architecture. She is a past president of the Wellington Howard League for Penal Reform.
Idea room
The United Nations has banned long-term solitary confinement, so why not?
Remark: July 18 is Nelson Mandela International Day. It was established in 2009 by the United Nations (UN) to recognize Mandela’s commitment to vulnerable groups in the community. In 2015, the UN again honored Mandela when it named its Standard Minimum Rules for the Treatment of Prisoners, the Nelson Mandela Rulesand – for the first time – banned long-term solitary confinement, something we have yet to do in the laws governing our prisons.
Solitary confinement is defined in the Mandela rules as “the confinement of prisoners for 22 hours or more per day without meaningful human contact”. It harms mental health and well-being, as evidenced by more than 50 years of research documenting psychological and physiological damage. According to the UNSolitary confinement can lead to self-harm, paranoia and psychosis, depression and cognitive impairment.
But the UN has not banned solitary confinement. It banned prolonged solitary confinement – defined as solitary confinement for longer than 15 days. This 15-day threshold isn’t accidental: it’s important because after about 15 days, the negative mental and physical health effects for most people are likely to become permanent.
While UN rules prohibit long-term solitary confinement, Corrections Act does not.
The law allows for a maximum of 15 consecutive days for cell detention used as punishment for prison disciplinary violations, but solitary confinement for other reasons has no absolute limit. For example, Ombudsman Peter Boshier has found that prisoners believed to be at risk of self-harm and suicide, segregated prisoners and prisoners subject to restrictive regimes can be held in solitary confinement for extended periods. He notes that “While review processes exist, restrictions may continue indefinitely”.
This seems to be supported by the few cases that are going public. Mihi Bassett, for example, was held in jail for… four months at the Women’s Correction Facility in the Auckland Region.
Travis Edge’s mother described her son’s months in Auckland South Corrections Facility (ASCF) as “23 hours alone in your cell, then an hour alone in your own garden”.
The Ombudsman’s 2018 and 2020 reports have also pointed to possible long-term solitary confinement at Auckland Prison and ASCF, and his surveys of prisoners reveal restrictive regimes causing de facto long-term solitary confinement.
All of this suggests that not only are some New Zealand prisoners held in solitary confinement, but some have been subjected to it for more than 15 consecutive days.
This is difficult to reconcile with the Department of Corrections’ position that “solitary confinement is not practiced in New Zealand prisons”. But how does it know this? Corrections does not maintain centralized records of inmates incarcerated for more than 22 hours a day, and has stated that finding this information would require manual intensive investigation of inmates’ individual records. Such a lack of data means it is nearly impossible to investigate this aspect of our prisons.
Similar issues exist regarding the “meaningful human contact” section of the UN definition of solitary confinement, as Corrections does not maintain consistent records of “meaningful human contact” for inmates incarcerated for more than 22 hours a day. It also has no definition of “meaningful human contact” that would facilitate surveillance.
The Mandela rules uselessly have no definition either. However, in April 2016, the University of Essex Human Rights Center addressed this gap. To be expert meeting described “meaningful human contact” as direct personal contact that is “more than fleeting or incidental, enabling empathetic interpersonal communication” and not “those interactions determined by prison routines, the course of criminal investigations, or medical necessity”. Ireland also has a definition that we could adopt or change.
The Ombudsman has proposed establishing a definition and making meaningful human interaction of at least two hours a day a minimum right for prisoners. In fact, he has stated that legal reforms are needed to protect against prolonged solitary confinement”to ensure New Zealand meets its international human rights obligations”.
If we believe that prolonged solitary confinement is wrong, we should ban it. Anyway, solitary confinement is currently unmonitored and thus effectively invisible in this country.
Banning prolonged solitary confinement would bring our law into line with UN Mandela rules and limit psychological and physiological harm to people subjected to it. Ensuring that data is collected, audited and publicly reported is also vital. Nelson Mandela Day seems like a good time to commit to addressing this.