The United Nations has banned prolonged solitary confinement, so why haven't we?
Comment: July 18 is Nelson Mandela International Day. It was created by the United Nations (UN) in 2009 to recognise Mandela's dedication to vulnerable groups in the community. In 2015, the UN again honoured Mandela when it named its Standard Minimum Rules for the Treatment of Prisoners, the Nelson Mandela Rules, and - for the first time - prohibited prolonged solitary confinement, something we are 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 a day without meaningful human contact”. It harms mental health and wellbeing, as evidenced by more than 50 years of research documenting psychological and physiological damage. According to the UN, solitary confinement can cause self-harm, paranoia and psychosis, depression, and cognitive disturbances.
But the UN didn't ban solitary confinement. It banned prolonged solitary confinement - defined as solitary confinement longer than 15 days. This 15-day threshold is not accidental: it is important because at about 15 days the negative mental and physical health impacts are likely to become permanent for most people.
While the UN rules ban prolonged solitary confinement, our Corrections Act does not.
The Act has a maximum of 15 consecutive days for cell confinement used as a punishment for breaches of prison discipline, but solitary confinement that occurs for other reasons has no absolute limit. For example, Ombudsman Peter Boshier has identified prisoners deemed to be at risk of self-harm and suicide, segregated prisoners, and prisoners subject to restrictive regimes, as able to be kept in solitary confinement for prolonged periods. He notes that “While review processes exist, they allow restrictions to be continued indefinitely”.
This appears to be supported by the few cases that become public. Mihi Bassett, for example, was kept in cell confinement for four months at Auckland Region Women's Correction Facility.
Travis Edge's mother described her son's months at Auckland South Corrections Facility (ASCF) as “23 hours locked in your cell by yourself, then one hour out in your own yard by yourself”.
Ombudsman's reports in 2018 and 2020 have also noted possible prolonged solitary confinement at Auckland Prison and ASCF, and his surveys of prisoners reveal restrictive regimes causing de facto prolonged solitary confinement.
All this suggests that not only are some New Zealand prisoners kept in solitary confinement, but that some are subject to it for more than 15 consecutive days.
This is difficult to reconcile with the Department of Corrections' position that “Solitary confinement is not used in New Zealand prisons”. But how does it know this? Corrections keeps no centralised records of prisoners who are confined for more than 22 hours each day, and has stated that to find this information would require manually-intensive examination of individual prisoner records. Such lack of data means researching this aspect of our prisons is near impossible.
Similar problems exist in relation to the “meaningful human contact” part of the UN definition of solitary confinement because Corrections does not keep consistent records of “meaningful human contact” for prisoners confined more than 22 hours each day. It also does not have a definition of “meaningful human contact” that would facilitate monitoring it.
The Mandela Rules unhelpfully also have no definition. However, in April, 2016 the University of Essex's Human Rights Centre addressed this gap. Its expert meeting described “meaningful human contact” as direct face-to-face 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 we could adopt or modify.
The Ombudsman has suggested we legislate a definition and make meaningful human interaction of at least two hours daily a minimum entitlement for prisoners. In fact, he has stated that legal reform to protect against prolonged solitary confinement is needed “to ensure that New Zealand meets its international human rights obligations”.
If we believe prolonged solitary confinement is wrong, we should ban it. Either way, solitary confinement is currently unmonitored and so effectively invisible in this country.
Banning prolonged solitary confinement would make our law consistent with the UN's Mandela Rules and limit the psychological and physiological damage to people subjected to it. Ensuring data is collected, monitored and publicly reported is also vital. Nelson Mandela Day seems to be a good time to commit to addressing this.
