fine, solitary confinement
A general principle of law reflected in Sections 63 to 70, IPC is that an amount of fine should not be harsh or excessive. The makers of IPC were conscious of this problem. The Authors of the Code, therefore, observed;
Death, imprisonment, transportation, banishment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. But they are so disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine, the case is different. In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence. The mulet which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich Zamindar. It is impossible to fix any limit to the amount of a fine which will not either be so high as to be ruinous to the poor, or so low as to be no object of terror to the rich. There are many millions in India who would be utterly unable to pay a fine of fifty rupees; there are hundreds of thousands from whom such a fine might be levied, but whom it would reduce to extreme distress; there are thousands to whom it would give very little uneasiness; there are hundreds to whom it would be a matter of perfect indifference, and who would not cross a room to avoid it. The number of the poor in every country exceeds in a very great ratio the number of the rich. The number of poor criminal it is a matter of absolute indifference whether the fine to which he is liable to be limited or not, unless it be so limited as to render it quite inefficient as a mode of punishing the rich. To a man who has no capital, who had laid by nothing, whose monthly wages are just sufficient to provide himself and his family with their monthly rice, it matters not whether the fine for assault be left to be settled by the discretion of the Courts, or whether a hundred rupees be fixed as the maximum. There are no degrees in impossibility. He is no more able to pay a hundred rupees than to pay a lac. A just and wise Judge, even if entrusted with a boundless discretion will not, under ordinary circumstances, would leave it quite in the power of an unjust or inconsiderate Judge to inflect on such an offender all the evil which can be inflicted on him by means of fine .
It appears to us that the punishment of fine is a pecuniary appropriate punishment for all offences to which men are prompted by cupidity; for it is a punishment which operates directly on the very feeling which impels men to such offences. A man who has been guilty of great offences arising from cupidity, of forging a bill of exchange, for example, of keeping a receptacle for stolen goods, or of existence embezzlement, ought, we conceive, to be so fined as to reduce him to poverty. That such a man should, when his imprisonment is over, return to the enjoyment of three-fourths of his property, a property which may be very large and which may have been accumulated by his offences, appears to us highly objectionable. Those persons who are most likely to commit such offences would often be less deterred by knowing that the offender had passed several years in imprisonment, than encouraged by seeing him, after his liberation, enjoying the far larger part of his wealth in Adamji Umer Dalal v. The State of Bombay, (1952) SCR 172, determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the Court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it. Speaking for the Court Mahajan J. observed in that case that: "in imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. 177). Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300/- to Rs. 4,000/-on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine. (law reiterated in Shanti Lal vs State Of M.P on 8 October, 2007) Does life sentence mean sentence for 20 years? In Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296, the appellant, who was 20 years old at the time of commission of the offence, had come to this Court, condemned to death by the trial court and the High Court. According to prosecution, he had killed five members of a family by mercilessly battering them to death. The manner of killing was brutal and the circumstances of the crime exhibited crass ingratitude on the appellant's part. The motive was theft of gold ornaments and other articles belonging to the victim family. In this case, K. G. Balakrishnan, J. (as the Hon'ble the Chief Justice was at that time) who wrote the judgment for the Court commuted the death sentence awarded to the appellant to imprisonment for life subject to the direction that he would not be released from the prison until he had served out at least 20 years of imprisonment including the period already undergone by him. In this case there is also a very useful discussion with regard to the provisions of commutation and remission in the Code of Criminal Procedure and the prison rules to which we shall advert later on in this judgment. In Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra, (2002) 2 SCC 35, the condemned appellant had committed the murder of his own brother, their mother and four members of his brother's family because the deceased brother was not partitioning the property which the appellant claimed to be joint family property. In the totality of circumstances this Court set aside the death sentence awarded to the appellant but directed that for the murders committed by him, he would suffer imprisonment for life and further that he would not be released from prison until he had served out at least 20 years of imprisonment including the period already undergone by him. For giving such a direction, the court referred to the decisions in Shri Bhagwan (supra) and Dalbir Singh V. The State of Punjab, (1979) 3 SCC 745.
In Ram Anup Singh & others V. State of Bihar, (2002) 6 SCC 686, there were a father and his two sons before this court. They had killed the father's brother, the brother's wife, his daughter and his son-in-law. On conviction for the murders the father was sentenced to life imprisonment but the two sons were given the death penalty. This Court once again interfered and set aside the death sentence awarded by the trial court and confirmed by the High Court to the two sons and instead sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing an actual term of 20 years including the period of imprisonment already undergone by them. Reference was made to the decisions in Shri Bhagwan, Dalbir Singh and Prakash Dhawal Khairnar (Patil) (supra).
In Mohd. Munna vs. Union of India, (2005) 7 SCC 417. In this case it was basically held that in the absence of an order of remission formally passed by the appropriate government, there was no provision in the Penal Code or in the Code of Criminal Procedure under which a sentence of life imprisonment could be treated as for a term of 14 years or 20 years and further that a convict undergoing imprisonment for life could not claim remission as a matter of right. In Jayawant Dattatraya Suryarao vs. State of Maharashtra, (2001) 10 SCC 109, this Court had before it a batch of five analogous cases. There were three appeals on behalf of three of the accused convicted by the trial court; another appeal by the State in regard to the accused who were acquitted by the trial court and a death reference in regard to one of the appellants, Subhashsingh Shobhanathsingh Thakur (A-6) who was given sentences of death on two counts, one under the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the other under section 120-B of the Penal Code. According to the prosecution case the appellants, along with a number of other co-accused, armed with highly sophisticated weapons had raided J.J.Hospital in Mumbai where the victim, a member of another underworld gang, was admitted for treatment. In the hospital they made indiscriminate firing killing not only their target but also two policemen who were on guard duty and injuring several others. The court confirmed the conviction of appellant No.6 but modified the sentence from death penalty to imprisonment for life - till rest of life.
In Nazir Khan & others Vs. State of Delhi, (2003) 8 SCC 461, three of the appellants before the Court were sentenced to death for committing offences punishable under Section 364-A read with Section 120-B, IPC. They were also convicted under the provisions of Terrorist and Disruptive Activities (Prevention) Act (TADA) with different terms of imprisonment for those offences. This Court, however, commuted the death sentence of the three appellants but having regard to the gravity of the offences and the dastardly nature of their acts directed for their incarceration for a period of 20 years with the further direction that the accused-appellants would not be entitled to any remission from the term of 20 years. Reference was made to the earlier decisions in Ashok Kumar vs. Union of India, (1991) 3 SCC 498 and Sat Pal vs. State of Haryana, (1992) 4 SCC 172. in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the decision of the case of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
General Sentencing guidelines :-
Bikram Dorjee vs State Of West Bengal on 24 April, 2009
(quoting Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 )
The object of sentencing should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". (reiterated in State Of M.P vs Kashiram & Ors on 2 February, 2009)
State of M.P. Versus Udaibhan CRIMINAL APPEAL NO. 183 OF 2016
It is the duty of the Court awarding sentence
to ensure justice to both the parties and therefore undue leniency in
awarding sentence needs to be avoided because it does not have the
necessary effect of being a deterrent for the accused and does not
re-assure the society that the offender has been properly dealt with. It is
not a very healthy situation to leave the injured and complainant side
thoroughly dissatisfied with a very lenient punishment to the accused.
Supreme Court of India
State Tr.P.S.Lodhi Colony,New ... vs Sanjeev Nanda on 3 August, 2012
Generally, the policy which the court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.
Community Service for Avoiding Jail Sentence
Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost. Mohd. Munna v. Union of India on 16 September, 2005
Life imprisonment means rigorous imprisonment for life.
In the first place, a distinction between 'imprisonment for life' and "imprisonment for a term" has been maintained in the Penal Code in several of its provisions Secondly, by its very terms Section 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description" and it is only in such case that it is competent for the court to direct that "such imprisonment shall be either wholly rigorous or wholly simple or that any part of such imprisonment shall be rigorous and the rest simple." And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description", in other words Section 60 would be inapplicable. position in law as regards nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.
Supreme Court of India
Vijayan vs Sadanandan K. & Anr on 5 May, 2009
The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same.Having regard to the views expressed hereinabove, we hold that while awarding compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add a default sentence of imprisonment . In Sugnathi Suresh Kumar v Jagdeeshan [(2002) 2 SCC 420], where the aforesaid views were reiterated and it was stated in paragraph 11 of the said judgment as follows :-
"11. When this Court pronounced in Hari Singh v. Sukhbir Singh (supra) that a Court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all Courts in India to follow the said course. "
(Section 431 Cr.P.C. provides that any money (other than a fine) payable by virtue of any order made under the Code and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.t in that view of the matter, compensation awarded under Section 357(3) Cr.P.C. could also be recovered under Section 431 Cr.P.C. read with Section 421 Cr.P.C., which provides the methods for recovery of fine imposed by the Court from the accused. In this connection, reference was also made to Sections 64 to 70 of the Indian Penal Code (IPC), which empower the Court to impose a default sentence in case of non-payment of fine. It was submitted that default sentence is not a substantive sentence under the IPC and it comes to an end the moment fine is paid by the accused. Section 30 Cr.P.C. also recognizes the power of the Court to impose a default sentence on non- payment of fine)
Shantilal v State of Madhya Pradesh [(2007) 11 SCC 243]
The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or `otherwise'. A terms of imprisonment ordered in default of payment of fine stands on a different footing."
The same view was expressed earlier by Supreme Court in Kuldip Kaur v Surinder Singh [(1989) 1 SCC 405], where it was held that a default sentence is a mode of enforcing recovery of amount imposed by way of compensation. Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr on 23 April, 2012
the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence.
Equitable wages to be paid to the prisoners who perform hard labour : Supreme Court of India
State Of Gujarat And Anr vs Hon'Ble High Court Of Gujarat on 24 September, 1998
(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.
(2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.
(3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State to do so as early as possible.
(4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Government of fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction.
(5) We recommend to the State concerned to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.
Solitary confinement :
JUDICIAL DECISIONS OF INDIA :-
In AIR 1978 SC 1675, in the case of "Sunil Batra vs. Delhi Administration & others", their Lordships of the Hon'ble Supreme Court have explained that the term 'prisoner under sentence to death' can only mean the prisoners whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority. Their Lordships have also interpreted Section 366 (2) Cr.P.C. and Section 30 (2) of the Prisons Act read with Articles 20(2) and 21 of the Constitution of India.
Their Lordships have held as under:-
"102. This 'safe keeping' in jail custody is the limited jurisdiction of the jailor. The convict is not sentenced to imprisonment. He is not sentenced to solitary confinement. He is a guest in custody, in the safe keeping of the host-jailor until the terminal hour of terrestrial farewell whisks him away to the halter. This is trusteeship in the hands of the Superintendent, not imprisonment in the true sense. Section 366(2) Criminal Procedure Code (Jail Custody) and Form 40 (safely to keep) underscore this concept, reinforced by the absence of a sentence of imprisonment under Section 53, read with Section 73, Indian Penal Code. The inference is inevitable that if the 'condemned' men were harmed by physical or mental torture the law would not tolerate the doing since injury and safety are obvious enemies. And once this qualitative distinction between imprisonment and safe keeping within the prison is grasped, the power of the jailor becomes benign. Batra, and others of his ilk, are entitled to every creature comfort and cultural facility that compassionate safekeeping implies. Bed and pillow, opportunity to commerce with human kind, worship in shrines, if any, games, books, newspapers, writing material, meeting family members, and all the good things of life, so long as life lasts and prison facilities exist. To distort safekeeping into a hidden opportunity to cage the ward and to traumatize him is to betray the custody of the law. Safe custody does not mean deprivation, isolation, banishment from the Lenten banquet of prison life and infliction of travails as if guardianship were best fulfilled by making the ward suffer near-insanity. Maybe the Prison Superintendent has the alibi of prison usage, and may be he is innocent of the inviolable values of our Constitution. Maybe, there is something wrong in the professional training and the prison culture. Maybe, he conceives his mission unwittingly to help God ! 'Whom God wishes to destroy, He first makes mad'. For, long segregation lashes the senses until the spirit lapses into the neighbourhood of lunacy. Safe keeping means keeping his body and mind in fair condition. To torture his mind is unsafe keeping. Injury to his personality is not safe- keeping. So,Section 366 CrPC forbids any act which disrupts the man in his body and mind. To preserve his flesh and crush his spirit is not safe-keeping, whatever else it be.
Supreme Court in Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : (1978 Cri LJ 1741). In the above decision the Supreme Court held that a person can be said to be sentenced to death only after all judicial and other constitutional remedies are over. The Supreme Court held as follows :--
"223. The expression "prisoner under sentence of death" in the context of Sub-section (2) of Section 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority. In a slightly different context in State of Maharashtra v. Sindhi (1975) 3 SCR 574 : (AIR 1975 SC 1665) : (1975 Cri LJ 1475) it was said that the trial of an accused person under sentence of death does not conclude with the termination of the proceedings in the Court of Session because of the reason that the sentence of death passed by the Sessions Court is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is passed by a competent Court. In the context of Section 303 of the Indian Penal Code it was said in Abdul Azeez v. State of Karnataka. (1977) 3 SCR 393 : (AIR 1977 SC 1485) : (1977 Cri LJ 1121) that an accused cannot be under sentence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under Section 401. Cr. P.C. Therefore, the prisoner can be said to be under the sentence of death only when the death sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then the person who is awarded capital punishment cannot be said to be a prisoner under sentence of death in the context of Section 30. Sub-section (2). This interpretative process would, we hope, to a great extent relieve the torment and torture implicit in Sub-section (2) of Section 30, reducing the period of such confinement to a short duration.
224. What then Is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable? Section 366(2) of the Cr. P.C. enables the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting Sub-section (2) of Section 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. After the sentence becomes executable he may be kept in a cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company."
In the case of Smt. Triveniben vs. State of Gujarat 1989 (1) SCC 678 and other analogous matters, their Lordships of the Hon'ble Supreme Court have held that so long as the matter is pending in any court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope and he does not suffer that mental torture which a person suffers when he knows that he is to be hanged but waits for the Doomsday.The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the Apex Court is pronounced i.e. when the judicial process has come to an end.
In Black's Law Dictioinary, 8th Edition, the term "solitary confinement" has been defined as "separate confinement that gives a prisoner extremely limited access to other people."
In "Words and Phrases, Permanent Edition, Volume 39", the term 'solitary confinement' has been defined as under:-
'The peculiarities of the system of punishment by "solitary confinement" were the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that he had no direct intercourse or sight of any human being and no employment or instruction.
Section 75 IPC :
Section 75 IPC is to be read with Section 236 of Cr.PC , 1973 Supreme Court of India
Pratap vs State Of U.P on 22 December, 1972
Under this section the mere fact that a person has been convicted under Chapter XII or Chapter XVII of the Code is enough to subject him to enhanced punishment in case of a subsequent offence committed by him' even though the sentence following his earlier conviction might either have been remitted or be may have been released after serving his sentence. Under section 236 Cr.PC(section 310 of the old Code of Criminal Procedure )also it is enough that the person concerned has been earlier convicted. It is not necessary that the sentence should be in force.Bearing in mind that section 75 I.P.C. and section 236 of the Code of Criminal Procedure deal with persons with previous conviction-the previous sentence need not necessarily be in force when the subsequent offence is committed-it would be clear that the latter section is intended to be applicable only to cases to which section 75 of the Indian Penal Code applies Medical Jurisprudence of Solitary confinement : -
"Psychiatric Effects of Solitary Confinement", by author Stuart Grassian, published by Washington University Journal of Law & Policy, the author has dealt the entire gamut of solitary confinement and its scientific harms to the convicts as under:-
Solitary confinement--that is the confinement of a prisoner alone in a cell for all, or nearly all, of the day with minimal environmental stimulation and minimal opportunity for social interaction--can cause severe psychiatric harm. It has indeed long been known that severe restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning; this issue has been a major concern for many groups of patients including, for example, patients in intensive care units, spinal patients immobilized by the need for prolonged traction, and patients with impairment of their sensory apparatus (such as eye- patched or hearing-impaired patients). This issue has also been a very significant concern in military situations, polar and submarine expeditions, and in preparations for space travel. The United States was actually the world leader in introducing prolonged incarceration, and solitary confinement, as a means of dealing with criminal behavior. The "penitentiary system" began in the United States, first in Philadelphia, in the early nineteenth century, a product of a spirit of great social optimism about the possibility of rehabilitation of individuals with socially deviant behavior.
2 The Americans were quite proud of their "penitentiary system" and they invited and encouraged important visitors from abroad to observe them. 3 This system, originally labeled as the "Philadelphia System," involved almost an exclusive reliance upon solitary confinement as a means of incarceration and also became the predominant mode of incarceration, both for post conviction and also for pretrial detainees, in the several European prison systems which emulated the American model.
4 The results were, in fact, catastrophic. The incidence of mental disturbances among prisoners so detained, and the severity of such disturbances, was so great that the system fell into disfavor and was ultimately abandoned. During this process a major body of clinical literature developed which documented the psychiatric disturbances created by such stringent conditions of confinement.
5 The paradigmatic psychiatric disturbance was an agitated confusional state which, in more severe cases, had the characteristics of a florid delirium, characterized by severe confusional, paranoid, and hallucinatory features, and also by intense agitation and random, impulsive, often self-directed violence. Such disturbances were often illness. In addition, solitary confinement often resulted in severe exacerbation of a previously existing mental condition. Even among inmates who did not develop overt psychiatric illness as a result of solitary confinement, such confinement almost inevitably imposed significant psychological pain during the period of isolated confinement and often significantly impaired the inmate's capacity to adapt successfully to the broader prison environment. It is both tragic and highly disturbing that the lessons of the nineteenth century experience with solitary confinement are today being so completely ignored by those responsible for addressing the housing and the mental health needs in the prison setting. For, indeed, the psychiatric harm caused by solitary confinement had become exceedingly apparent well over one hundred years ago. Indeed, by 1890, with In re Medley,6 the United States Supreme Court explicitly recognized the massive psychiatric harm caused by solitary confinement: This matter of solitary confinement is not . . . a mere unimportant regulation as to the safe-keeping of the prisoner. . . . . . . [E]xperience [with the penitentiary system of solitary confinement] demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.7 The consequences of the Supreme Court's holding were quite dramatic for Mr. Medley. Mr. Medley had been convicted of having murdered his wife. Under the Colorado statute in force at the time of the murder he would have been executed after about one additional month of incarceration in the county jail. But in the interim between Mr. Medley's crime and his trial the Colorado legislature had passed a new statute which called for the convicted murderer to be, instead, incarcerated in solitary confinement in the state prison during the month prior to his execution.8 Unhappily, when the legislature passed the new law it simultaneously rescinded the older law without allowing for a bridging clause which would have allowed for Mr. Medley's sentencing under the older statute.
9 Mr. Medley appealed his sentencing under the new statute, arguing that punishment under this new law was so substantially more burdensome than punishment under the old law as to render its application to him ex post facto.10 The Supreme Court agreed with him, even though it simultaneously recognized that if Mr. Medley was not sentenced under the new law, he could not be sentenced at all.11 Despite this, the Court held that this additional punishment of one month of solitary confinement was simply too egregious to ignore; the Court declared Mr. Medley a free man, and ordered his release from prison.12 Dramatic concerns about the profound psychiatric effects of solitary confinement have continued into the twentieth century, both in the medical literature and in the news. The alarm raised about the "brain washing" of political prisoners of the Soviet Union and of Communist China-- and especially of American prisoners of war during the Korean War-- gave rise to a major body of medical and scientific literature concerning the effects of sensory deprivation and social isolation, including a substantial body of experimental research.13 This literature, as well as my own observations, has demonstrated that, deprived of a sufficient level of environmental and social stimulation, individuals will soon become incapable of maintaining an adequate state of alertness and attention to the environment. Indeed, even a few days of solitary confinement will predictably shift the electroencephalogram (EEG) pattern toward an abnormal pattern characteristic of stupor and delirium. This fact is not surprising. Most individuals have at one time or another experienced, at least briefly, the effects of intense monotony and inadequate environmental stimulation. After even a relatively brief period of time in such a situation an individual is likely to descend into a mental torpor or "fog," in which alertness, attention, and concentration all become impaired. In such a state, after a time, the individual becomes increasingly incapable of processing external stimuli, and often becomes "hyperresponsive" to such stimulation. For example, a sudden noise or the flashing of a light jars the individual from his stupor and becomes intensely unpleasant. Over time the very absence of stimulation causes whatever stimulation is available to become noxious and irritating. Individuals in such a stupor tend to avoid any stimulation, and withdraw progressively into themselves and their own mental fog. An adequate state of responsiveness to the environment requires both the ability to achieve and maintain an attentional set and the ability to shift attention. The impairment of alertness and concentration in solitary confinement leads to two related abnormalities: the inability to focus, and the inability to shift attention. The inability to focus (to achieve and maintain attention) is experienced as a kind of dissociative stupor--a mental "fog" in which the individual cannot focus attention, and cannot, for example, grasp or recall when he attempts to read or to think. The inability to shift attention results in a kind of "tunnel vision" in which the individual's attention becomes stuck, almost always on something intensely unpleasant, and in which he cannot stop thinking about that matter; instead, he becomes obsessively fixated upon it. These obsessional preoccupations are especially troubling. Individuals in solitary confinement easily become preoccupied with some thought, some perceived slight or irritation, some sound or smell coming from a neighboring cell, or, perhaps most commonly, by some bodily sensation. Tortured by it, such individuals are unable to stop dwelling on it. In solitary confinement ordinary stimuli become intensely unpleasant and small irritations become maddening. Individuals in such confinement brood upon normally unimportant stimuli and minor irritations become the focus of increasing agitation and paranoia. I have examined countless individuals in solitary confinement who have become obsessively preoccupied with some minor, almost imperceptible bodily sensation, a sensation which grows over time into a worry, and finally into an all- consuming, life-threatening illness. Individuals experiencing such environmental restriction find it difficult to maintain a normal pattern of daytime alertness and nighttime sleep. They often find themselves incapable of resisting their bed during the day-- incapable of resisting the paralyzing effect of their stupor--and yet incapable of any restful sleep at night. The lack of meaningful activity is further compounded by the effect of continual exposure to artificial light and diminished opportunity to experience natural daylight. And the individual's difficulty in maintaining a normal day-night sleep cycle is often far worsened by constant intrusions on nighttime dark and quiet, such as steel doors slamming shut, flashlights shining in their face, and so forth. There are substantial differences in the effects of solitary confinement upon different individuals.
Those most severely affected are often individuals with evidence of subtle neurological or attention deficit disorder, or with some other vulnerability. These individuals suffer from states of florid psychotic delirium, marked by severe hallucinatory confusion, disorientation, and even incoherence, and by intense agitation and paranoia. These psychotic disturbances often have a dissociative character, and individuals so affected often do not recall events which occurred during the course of the confusional psychosis. Generally, individuals with more stable personalities and greater ability to modulate their emotional expression and behaviour and individuals with stronger cognitive functioning are less severely affected. However, all of these individuals will still experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli (especially noxious stimuli). Moreover, although many of the acute symptoms suffered by these inmates are likely to subside upon termination of solitary confinement, many--including some who did not become overtly psychiatrically ill during their confinement in solitary--will likely suffer permanent harm as a result of such confinement. This harm is most commonly manifested by a continued intolerance of social interaction, a handicap which often prevents the inmate from successfully readjusting to the broader social environment of general population in prison and, perhaps more significantly, often severely impairs the inmate's capacity to reintegrate into the broader community upon release from imprisonment. Many inmates housed in such stringent conditions are extremely fearful of acknowledging the psychological harm or stress they are experiencing as a result of such confinement. T