The Government is proposing to discard the internationally recognised definition of prolonged solitary confinement by creating a new definition of its own. Should we care?
The bill that would do this is the Corrections (Management of Prisoners, and Prisoners’ Property) Amendment Bill, currently open for public submissions. It is a lengthy and complex document that aims to address the disregard for human rights identified in two 2024 reports on the Prisoners of Extreme Risk Unit (PERU).
One of these reports, by the recently knighted former Ombudsman Peter Boshier, described “evidence of prolonged solitary confinement in oppressive conditions […] as well as other human rights abuses, including concerning incidents of use of force”.
The second, by the Prison Inspectorate, said “some clinicians felt ethically compromised by observing the harm to mental wellbeing that is being caused by the management regimes in the PERU”.
Both reports found prisoners had no knowledge of why they were transferred to PERU, how long they would be there, and how they could get out, especially given the extremely restrictive regime prevented any ability to demonstrate improvements in pro-social behaviour. The legality of the regime and processes were questioned.
Such a disregard for human rights is not unheard of in New Zealand prisons. A case in point is Taunoa vs Attorney-General from two decades ago. It involved prisoners being denied clothing, forced to use the same bucket of water to clean multiple cells (including toilets and hand basins), and even having their toilet paper rationed.
The current bill provides criteria to explain why some prisoners ought to be housed in super-max conditions and sets out safeguards. This is important because, while confining people alone in concrete cells may be effective prison management, it is not humane and does not prepare anyone for reintegration into society.
One of the safeguards the bill proposes is the prohibition of prolonged solitary confinement. But this seemingly simple provision is not all that it seems.
Prolonged solitary confinement is defined by the United Nations as solitary confinement longer than 15 days, with solitary confinement being more than 22 hours a day without meaningful human contact. This human contact can be with prison staff, prisoners, family, or friends. These definitions are found in the Nelson Mandela Rules, adopted by consensus at the December 2015 UN General Assembly. The rules also prohibit prolonged solitary confinement.
This prohibition is important because solitary confinement causes significant psychological and physical harm, including impulse control issues, paranoia, obsessive thoughts, post-traumatic stress disorder, and psychosis. The two-week threshold that defines prolonged confinement recognises this is the timeframe after which the harm done may become irreversible.
When the bill was introduced into Parliament in April, Corrections Minister Mark Mitchell said it would “explicitly prohibit prolonged solitary confinement”. This sounds like a good thing – but the statement is deceptive. The Government is not referring to the internationally recognised definition of prolonged solitary confinement. Instead, it has concocted a new definition that would substitute the required minimum of two hours a day of meaningful human contact for a mere 10 hours a fortnight.
Not only is the amount of meaningful human contact more than halved in the Government definition, it is defined in terms of hours per fortnight, not hours per day. This would make it legal for a prisoner to have no meaningful human contact for 13 days straight in a regime that could last for years. The Ombudsman’s 2024 report recorded 640 days as the average time prisoners were in PERU; the longest was approximately three years and five months (1243 days).
This confinement occurs in a stark environment, characterised by sensory deprivation where concrete is the dominant colour. The Ombudsman described the cells in PERU as:
an oppressive physical environment which was not appropriate for long-term accommodation. While each cell had an attached yard, these were 10 square metres, concrete on three or four sides, with a metal security mesh roof, and any view of the surrounding landscape blocked. Natural light was limited, entering each cell through a window in the cell-to-yard door, filtered by the security mesh. Fresh air was only available in the yards, or if cell-to-yard doors were unlocked and open.
This is not a place conducive to good mental or physical health.
While it is clear the Government wants to be able to say it is prohibiting prolonged solitary confinement, it must know that it is not. It is also missing the point.
Prolonged solitary confinement is de-humanising. If prison is to be justified, it must be a place that supports people to successfully reintegrate into society. Prolonged solitary confinement disguised through a redefinition is hardly bringing us closer to positive outcomes that will make our communities safer.
