Locked up in darkness: the U.S. federal supermaximum prison debate

Anna Muns

Student number: 10061363

[email protected]

Thesis Supervisor: dr. M.S. Parry

Graduate School of Humanities, University of Amsterdam, 2015-2016

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Table of Contents 1. Introduction 2

2. The supermax debate in politics: pragmatism or activism? 9

3. Supermax prisons as a crime control industry 24

4. A constitutional matter: solitary confinement and American 38 jurisdiction

Conclusion 48

Appendix I: Overview of the political, economic and judicial 53 arguments proposed in the federal supermax debate

Bibliography 55

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1. Introduction In December of 2015, the American federal government guaranteed the funding for a new federal supermaximum security facility, or supermax prison, in Thomson, Illinois. Although the appropriations still needed the approval of Congress, it was presumable that also they will sign the bill to open up the funds for opening the Thomson supermax facility. The Thomson correctional center was already bought by the Obama Administration in October of 2012 for a total amount of $165 million, but remained nonoperational until this day. The Bureau of Prisons, the federal law enforcement agency, bypassed the House of Representatives who objected the purchase of the facility in the first place. After the funding was issued, House Speaker John Boehner issued a statement: ‘’The unilateral decision to purchase the Thomson Prison –even though Congress has repeatedly opposed the Obama administration’s effort to use taxpayer funds to do so –underscores the administration’s desire to move forward.’’1 The acquisition of Thomson prison did not only cause friction in the Republican majority in the House, it also caused disputes within the Republican Party. It appears that the use of supermax prisons, and the incarceration in solitary confinement that comes with it, has substantially gained popularity during the 1990s and early 2000s as more than forty state supermax prisons opened their doors. The nation’s increased reliance on solitary confinement appears to originate in the ‘tough on crime’ policy that started out in the 1980s. During this time, the idea of rehabilitation was in decline as a guiding theory of corrections. Instead, the correctional facilities of the last twenty years seem to follow a philosophy of deterrence, which eventually led to new regulations regarding correctional facilities.2 Today, most of the supermax facilities are under direct state control. Until now [red. June 2016], only one supermax prison is administered by the Department of Justice’s the Bureau of Prisons and is therefore under direct control of the federal government. This federal supermax facility, the ADX Florence in Colorado opened its doors in 1994 and houses more than 400 prisoners in solitary confinement today. This facility was partially modeled after the existing USP Marion facility in Illinois, which was upgraded to a supermaximum prison after a stabbing incident in 1983.

1 ‘Press release by John Boehner on Thomson Prison’, Paul Ryan Speaker of the House website, October 2, 2012: http://www.speaker.gov/press-release/speaker-boehner-obama-administration-s-purchase- thomson-prison-backdoor-move-import. 2 Jesenia M Pizarro, ‘Supermax Prisons: Myths, Realities, and the Politics of Punishment in American Society’, The Prison Journal, January 2006, Vol 17, 12.

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However, in 2006, the USP Marion was downgraded to a medium-security prison as there was no longer the urgency to sustain two federal supermax prisons. Despite the increased popularity of supermax prisons under policymakers, the arrival of these new facilities is not without controversy. Critique on the American approach of its criminal justice system is not new; several legal scholars, social scientists and historians have written on the racial inequality, the cruel punishments and the high recidivism that keeps haunting the American justice system. However, the literature specifically focused on supermax prisons is relatively new. Sharon Shalev’s Supermax: Controlling Risk through Solitary Confinement is considered to be one of the key works in this field of topic. It consists of a deep analysis of legal policy and statistical data in combination with interviews conducted with prisoners, the disciplinary staff and prison administrators.3 According to Shalev, the objectification of prisoners, arises from the administrator’s response to litigation, and therefore, shuts down the ethical arguments in the debate on supermax facilities. Emphasizing the scathing nature of solitary confinement, she opens up the debate on solitary confinement once again. Besides Shalev’s crucial work on supermax facilities, a wide range of scholars have joined the debate on supermax facilities, starting at the turn of the century. Social scientists, health experts and legal scholars intended to expose some of the main characteristics of these facilities, ranging from the legality of solitary confinement to the social impact of this punishment. Until then, little was known on the living conditions inside the prison, nor was there any knowledge on the placement procedures. Although there are of course differences between supermax prisons as they are subject to a particular state legislature, research has shown that all supermax facilities share certain characteristics. Prisoners are mostly incarcerated in solitary confinement cells 23 hours a day, where they are not allowed any physical contact and any treatment programs take place within the walls of the prisoners’ cells. The only physical contact that takes place is when the wards place or take of the handcuffs and prisoners only leave their cells for showers and some exercise moments.4 The living conditions of these prisoners and the emphasis on the use of solitary confinement also make the debate around the establishment of such prisons a debate specifically

3 Sharon Shalev, Supermax: controlling risk through solitary confinement (Portland: Willan, 2009) 4 Jesenia M Pizarro, ‘Supermax prisons: Their rise, current practices and effect on inmates’, The Prison Journal, June 2004, 84 (2): 255.

3 focused on solitary confinement, other parties such as the non-profit organization Solitary Watch tend to give extra attention to this particular incarceration condition when discussing supermax prisons. By reporting on the developments in the debate around solitary confinement and the political remarks on the use of it, they intent to raise awareness about the gruesome conditions of confinement in sole isolation. This seems to have its effect in the past two years, as also the Supreme Court has picked up on the debate when Supreme Court Justice Anthony B. Kennedy denounced the use of solitary confinement during the Davis v. Ayala case in 2014. Kennedy made clear that there was a special role for the justice department reserved in battling injustices of the prison system: ‘’Lawyers are fascinated with the guilt/innocent adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the corrections system than we do.’’5 Although Kennedy took a sharp stance with these remarks, the Supreme Court has not yet achieved a break-through in the case of solitary confinement. However, in January of 2016, Obama announced a ban on the use of solitary confinement for juveniles in federal prisons.6 This could be the beginning of a significant break-through in the case of solitary confinement. Nonetheless, the solitary confinement debate that seems to erupt now and then is only a small part of the discussion on supermax prisons. Even though, the method is used in these types of prisons, it is not the only aspect that should be discussed. From the 2000s on, different scholars have focused their analysis of maximum security prisons mainly on the ideas behind the use of this correctional method. The origins of supermax housing can be found already in 18th century America, where the Quaker ideal of penance in complete silence became popular as a method of redemption. The prisoner would be alone with its thoughts, which would eventually lead to full repentance and salvation. The prison administrators were there to facilitate this form of penance, but should not be actively involved with the rehabilitation process. According to Caleb Smith, this form of dehumanization of the prisoner became eventually the core of American justice and even American society.7 Robert A. Ferguson, prolongs this argument by stating that the United

5 Matt Ford, ‘Justice Kennedy Denounces Solitary Confinement’, The Atlantic, June 18, 2015: http://www.theatlantic.com/politics/archive/2015/06/kalief-browder-justice-kennedy-solitary- confinement/396320/. 6 ‘Barack Obama: Why we must rethink Solitary Confinement’, The Washington Post, January 25, 2016: https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary- confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html 7 Caleb Smith, The Prison and the American Imagination (New Haven: Yale University Press, 2011), 44.

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States has a specific obsession with punishment that differs their system from others. Ferguson, as many other scholars, argues that the American justice system and its ‘’exceptionalist’’ stance on it has failed, because of its ‘’punishment regime’’ character.8 Although the amount of research produced in the work of criminal justice more or less agrees on the fact that the United States have failed in creating a solid justice system, the research generated on supermax facilities does not always coincide with each other. Especially in the case of the impact of supermax prisons on its prison population, its wards and the administrative body there has been a lot of disagreement. Administrators often perceive supermax prisons as a solid institutional tool to house ‘the worst of the worst’. A 2006 inquiry among prison wardens in supermax facilities demonstrated that almost all of them considered the restrictions within the prisons beneficial for the safety, order and control. Besides that, the wardens believed that the use of supermax prisons could be a deterrent factor.9 However, there is no empirical evidence yet, that shows that supermax prisons are effective. A report published in 2001, stated that, according to the Colorado Department of Corrections, the rate of violent incidents had dropped by fifty percent.10 On the contrary, a study that evaluated the opening of supermax prisons in Illinois and Minnesota showed that it did not reduce the degree of violence among inmates.11 The dissent over the impact of supermax prisons on an administrative level is also apparent in the debate around the individual effect it has. One of the major concerns of full security prisons is their possible effect on the prisoners’ mental health. Some studies performed by sociologists provide evidence that a long term lockdown without any physical contact and the stressful environment within the supermax prison could cause symptoms of psychological disintegration and panic attacks.12 These are also the arguments used by parties as Solitary Watch and Justice Kennedy as they address the cases whereby, especially young inmates were mentally damaged by the time they got out. These stories are supported by media coverage in articles in

8 Robert Ferguson, Inferno: An Anatomy of American Punishment (Cambridge: Harvard University Press, 2014). 9 Daniel P. Mears, ‘Evaluating the Effectiveness of Supermax Prisons’, U.S. Department of Justice, January 2006: https://www.ncjrs.gov/pdffiles1/nij/grants/211971.pdf 10 Eugene Atherton, ‘Incapacitation with a purpose. Corrections Today’, 63, 2001, 101. 11 Briggs, C. S., Sundt, J. L., & Castellano, T. C. (2003). ‘The effect of supermaximum security prisons on aggregate levels of institutional violence’, Criminology, 41, 1360. 12 Craig Haney, ‘Mental Issues in Long-Term Solitary and ‘’Supermax’’ Confinement’, Crime and Delinquency, Vol. 49, No. 1, January 2003: http://www.supermaxed.com/NewSupermaxMaterials/Haney- MentalHealthIssues.pdf.

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The New York Times and The Atlantic as they distribute the stories on the overall neglect of the mental health problems of prisoners and its abominable effect on life outside of prison.13 However, these studies are often considered weak as they did not take into account the previous mental condition of the inmates before they were imprisoned. Many of these prisoners already developed mental illnesses even before committing their crime, but medical documents supporting this assertion are often not available. On top of that, some of these studies are limited as they tend to only investigate those prisoners who are already filing a lawsuit for their treatment during their confinement.14 The lack of diversity of cases makes it therefore difficult to generalize the entire supermax prison community. Besides the methodological problems of the studies mentioned above, there are also different inquiries suggesting that incarceration in a supermax prison could have beneficial effects on inmates. According to this research, inmates tend to reflect intensely on their self- control which eventually would lead to self-forgiveness.15 Furthermore, the solitary incarceration could also be perceived as a form of protection. There are cases in which the inmate specifically requests complete isolation to be protected from gang violence. This could be the case especially in prisons in the California area where white supremacist gangs and African American gangs are often the source of extreme prison violence. On top of that, there are signs that supermax incarceration statistically does not have the mere negative health effect as proposed by other social scientists. These studies show that, for example, only 3.1 % of USP Marion inmates had to be relocated to a mental hospital.16 There is somewhat of a discontinuity in the United States’ attitude towards supermaximum correctional facilities nowadays. In 2010, Mississippi started to close down some of its supermax prisons and saved more than $5 million dollars in doing so. It sparked a new wave of prison reform as other states such as Minnesota and Ohio are rethinking the use of solitary confinement as well.17 Considering Mississippi as one of the most conservative state, it

13 Mark Binelli, ‘Inside America’s Toughest Federal Prison’, The New York Times, March 26, 2015: http://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-prison.html?_r=1. 14 Craig Haney, ‘Mental Issues in Long-Term Solitary and ‘’Supermax’’ Confinement’, 2003. 15 R.D. King, ‘The Rise and Rise of Supermax: An American Solution in search of a Problem?’, Punishment and Society, Vol. 1 (2), 2005: 172. 16 D.A. Ward and T.G. Werlich, ‘Alcatraz and Marion: Evaluating super-maximum custody’, Punishment and Society, Vol 5, No. 1: 60. 17 Erica Goode, ‘Rethinking Solitary Confinement’, The New York Times, March 10, 2012:http://www.nytimes.com/2012/03/11/us/rethinking-solitary-confinement.html.

6 can be said that is at least remarkable this state would take upon an exemplary role in this case. Even though the State court of Mississippi addressed the issue of solitary confinement as inhumane and therefore gave the impression that it conducted its prison reform for humanitarian reasons, the economic argument seems to be the crucial factor in this case. But if the different states are reconsidering their use of solitary confinement and supermax prisons, why is the federal government planning to open a new federal supermax prison in 2016? It would be too simplified to argument that the United States government completely neglects the humanitarian argument against the use of supermax prisons. As in every governmental procedure, there are other key factors that influence the federal policy. Even though the case of supermax prisons has produced a lot of studies the past twenty years, there are still a lot of questions unanswered. Scholars and social scientists mentioned above agree that there is still a deficiency of knowledge of the effect of supermax prisons on overall policies. Because of the focus on the social impact and the more mythological idea behind solitary confinement, often, the more pragmatic arguments to keep supermax prisons is overlooked. Juxtaposed against all the social issues concerning supermax facilities, there are also political, judicial and economic dimensions that should be taken into account. As stated by Shalev: ‘’Prisons do not function in a vacuum but are part of a larger criminal justice system, which operates within a wider social, cultural, political and economic system’’.18 Until now, there have been little attempts to add these policy considerations relevant to assessing whether new supermax prisons should be built. By only concentrating on the social effects of supermax prisons, we are neglecting the more pragmatic elements that also have influence, or maybe even are a decisive factor when it comes to the United States’ national policy regarding supermax prisons. Therefore, the core of this thesis will be dedicated to explaining the other factors that are apparent to have the most influence on the supermax prison policy debate on a national level as there is a great discrepancy between the growing discontent with this system and the construction of a new supermax prison. Therefore, this thesis will look into the specific case of federal supermax prisons; not only because it seems that there is a discontinuity between policy on a state level and that on federal level, but also because these prisons have somewhat a special status. As seen before, in order to introduce prison reform on a state level, there is no need of a national court. In the case of federal

18 Shalev, Supermax, 2009: 157.

7 prison reform, there is the need of a Supreme Court case. Prison reform will not specifically be the focus of this thesis, but the policy decisions regarding supermax prisons, made by the administrative bodies of government, could one day be those factors that will influence whether or not there will be a Supreme Court case. Because there have been a few federal supermax prisons in the past that all had their own characteristics, beginning with Alcatraz in the 1930s, this thesis will be mainly dedicated to the opening and operations of the ADX Florence in Colorado and the current debate on the Thomson prison. In order to analyze the other more pragmatic factors in the supermax debate, this thesis will consist of three chapters that each covers a theme. Divided into a political, economic and judicial part, this thesis tends to demonstrate an alternative explanation of the inconsistency in federal policy. The first chapter will cover the pure political aspects of this debate. Recurring topics in this chapter will be Obama’s intention to transfer Guantánamo Bay prisoners to the new Thomson prison and the influence of Congress on the solitary confinement debate. In order to get a complete image of the political debate, state politics will be taken into consideration as well. There will be special attention to the role of Illinois Senator Dick Durbin who was involved in the national debate numerous times. He approved the purchase of the Thomson prison, but was also the initiator of two Congressional Hearings on the case of solitary confinement. His case shows just how complicated the debate around federal supermax prisons really is. The second chapter will focus on the economic effects of supermax prisons and how these effects have influenced the arguments in the debate. It is said that incarceration in solitary confinement and the execution of maximum security is a costly operation. As said before, Mississippi has banned the use of solitary confinement mainly because of budget cuts. In contrast to state prisons, the federal prisons are directly funded by The Bureau of Prisons and the United States Department of Justice. Therefore, an analysis of the federal budget plans for this department will give an insight in prioritization within prison policy. Besides a closer look on the budgets that make supermax facilities possible, this chapter will also assess the economic impact on the local community and the cost-effectiveness of supermax prisons. Rural communities and private companies seem to benefit directly from the opening of a new prison. The last chapter, aimed at explaining the judicial part of the supermax debate, will touch upon the difficulties encountered when attempting to implement prison reform on a legal level. An important factor that contributes to the continued operation of supermax prisons is the

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Supreme Court’s acceptance of the legality of it. Some federal judges have openly expressed their concerns but, in general, they remain reliant on the prison administrators’ advice and the effective control on supermax prisons. In order for the Supreme Court to take upon a case on supermax prisons, the use of solitary confinement should be in contradiction with the United States Constitution. Therefore, an assessment of the case of supermax prisons and its discrepancy with the Eighth and Fourteenth Amendment could be a way to discuss supermax prisons in a federal court. Throughout this thesis, I will also discuss the role of the media on this debate; especially when it comes down to the influence of American politics in this debate, we can see that the media has always been an important agitator for new debate. Because it seems that the arguments in these three chapters stand on their own, I have added an argumentative table as an appendix that is to be found at the end of this thesis. Throughout my research I have found that the arguments proposed in each chapter do not stand on their own; they are all correlated which makes the debate even more complex. This thesis will not propose any immediate action, but rather aims to expose the different interests that are at stake concerning a federal supermax prison. When these motives are exposed, it will be less complicated to think of a way to reform this system on the long-term.

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2. The supermax debate in politics: pragmatism or activism?

When the Bureau of Prisons [from now on the BOP] decided to replace the supermaximum unit control in Marion, Illinois with a new facility in Florence, Colorado, a request via the Freedom of Information Act by the People’s Office to get more information on this new facility was turned down. Wallace H. Cheney, Assistant Director of the BOP wrote: ‘’the issues you enquired about have not yet been decided. Therefore, no records exist at this time pertaining your request.’’19 The rejection of this request is characteristic for the secrecy that seems to surround supermax prisons, especially in the 1990s and early 2000s. As a consequence, investigative journalism became an important source for information; information that the United States Department of Justice was not willing to give. However, this does not mean that there is no legislation on supermax facilities or that this legislation isn’t subject to political changes. There is nothing really political at wanting to improve a dysfunctional prison system, but the fact that the supermax strategy, with all its costs, continues to be adopted as a primary strategy implies that politics feature prominently when it comes to prison policy. There are a few moments from the 1990s onwards during which politicians took a clear stance against supermax prisons, yet these actions never seemed strong enough to shut down the supermax facilities for good nor were these actions very consistent. Most of the policy decisions regarding supermax facilities are made by the bureau that runs the United States correctional facilities, the BOP. Although they are a part of the United States Department of Justice, they have more or less the exclusive right on shaping prison policy. However, during some important decision-making regarding supermax prisons, the government, mostly in the form of Congress, steps in to make sure that the checks and balances system maintains and that the BOP underwrites the United States Constitution. Yet, we have to ask ourselves at what point Washington decides to step in and if political action can be related to political activism or personal interest. Therefore, this chapter will be structured chronologically with a special focus to the opening of both the ADX Florence in 1994 and the possible opening of the Thomson facility in a more current day context.

19 Letter Wallace H. Cheney to Jan Susler (Attorney People’s Office), December 31 1990.

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The first political interest In 1984, just one year after its complete lockdown, the Judiciary Committee in Congress commissioned two correctional consultants to assess the operations of the first official federal supermax prison in Marion, Illinois. Allen A. Breed, the former director of the National Institute of Corrections, and Sociologist Professor, David A. Ward. They presented their results in a report submitted to the House of Representatives. The report starts with an overview of causes that may inflict the need for action; because of growing racial tensions and gang forming during the 1970s, a lot of prisoners had to be transferred from other prisons to the high security control unit in Marion. By doing so, the BOP intended to place all ‘’disruptive’’ inmates in one federal prison system that could guarantee absolute security. As stated: ‘’In essence, Marion would become a very specialized facility to house those inmates from the Federal Prison System whose violent, extremely disruptive behavior, causes management problems in other facilities‘’.20 This indicated a return to the old ‘’Alcatraz system’’ where one prison is destined for special punishment. It is of great importance to clearly distinct administrative segregation to that of disciplinary segregation; administrative segregation was not considered as a form of punishment, it was rather a policy-based response. However, a return to the Alcatraz model, which was known for its brutality against prisoners, was not the best publicity for the BOP and, therefore, these decisions were kept relatively secret. Only when the USP Marion was completely locked down in 1983, the media would catch up on the story with headlines as ‘’Marion, Ill., Facility is the New Alcatraz’’ and ‘’Marion Prison: Home for the Hostile’’.21 On top of that, it is peculiar, that the BOP, even though it is a governmental office, did not consult the rest of the Department of Justice concerning the USP lockdown. In this way, it became clear that there was an absence of government during this particular decision. Nevertheless, after the lockdown, Congress took its first interest in the incarceration treatment of supermax prisons by issuing a report. The report shows that immediately after the lockdown, the number of assaults with weapons dropped dramatically because of the decrease of contraband. However, these optimistic results stand in sheer contrast with the experiences of inmates themselves as in the first half of 1984, 155 suits were filed against the BOP, which eventually would result into the Bruscino v. Carlson case. The prosecutors, ‘’all prisoners who

20J.D. Henderson, Chairman, ‘’Marion Task Force Report’’, August 1979, 5. 21 Samuel O. Hancock, The LA Times, October 20,1985 and Paul Galloway, The Chicago Tribune, April 21, 1985.

11 are confined at Marion Penitentiary or who may in the future be confined at Marion Penitentiary’’, requested monetary relief for the alleged violations of their constitutional rights. According to the testimonies, inmates were confined in cells without bathroom facilities in handcuffs and leg irons for an extensive period of time. They were also threatened and verbally abused by the staff especially when they protested against their treatment.22 As a result, Congress required the BOP to come up with new procedures in order to ensure the prisoner’s safety. According to Ward, he and Breed were given access to all the reports, even those who were labeled ‘covert’ at first, and had full autonomy when it came to interviewing the inmates. In their study findings and remarks, Breed and Ward, recommended the BOP to keep the USP Marion control system intact, because a downscaling of the supermax correctional facilities would spark a new gulf of violence. Yet, the two investigators do claim that a better relationship between staff and inmates was necessary to prevent abuses. Moreover, the BOP should consider new experiments in its prisons and establish a mental health center in each facility. On top of that, the agency should give inmates access to legal material as inmates often feel frustrated because of the neglect of their constitutional rights. On the long term, the bureau should consider the construction of other level 6 (supermax) facilities or control units in each of the five regions that are under the control of the BOP. This would make visitations for the inmates’ family easier and human contact would eventually benefit the rehabilitation process. It would also allow the BOP to experiment more with rehabilitation programs on a regional level. So, Breed and Ward do not consider a supermax facility to be damaging: ‘’ We have not recommended that the lockdown be ended but in addition to the recommendations listed above for changing the current living and working conditions at Marion, we urge the Bureau of Prisons to enhance the training of the Marion staff in crisis intervention.’’23 At the end of the report, Jerry T. Wiliford, warden of the USP Marion, sets forth the guidelines for the facility in the next coming years: there will be more attention for mental and physical health of prisoners, there will be more access to education and legal documents and inmates will receive more freedom concerning telephone calls, work and television.24 All in all, this could be seen as a little breakthrough in prison reform.

22 Bruscino v. Carlson, ‘’Memorandum and Order’’, July 24, 1984: http://www.clearinghouse.net/chDocs/public/PC-IL-0022-0001.pdf. 23 Alan Breed and David Ward, ‘Consultants’ report submitted to the Committee on the Judiciary, U.S. House of Representatives’, December 1984: https://www.ncjrs.gov/pdffiles1/Digitization/103769NCJRS.pdf, 32. 24 Ibid, 37.

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From a broader perspective, the increase in popularity of supermax prisons, or incarceration methods in general, can be partially subscribed to the ‘’tough on crime’’ ideal, that started already in the early 1980s. The crack epidemic and the rise of violent gangs obliged the American government to respond quickly; guide-line based sentences and mandatory penalties were to keep the American public safe.25 However, the American prison population would quadruple in the next ten years and even minors would serve excessive long sentences. This shift in penal policy from a more rehabilitative approach to a punitive approach also meant a shift in separating criminals from society for a while, to separating them from society indefinitely. Nonetheless, it remains difficult to subscribe the coming of new federal supermax prisons solely to the ‘’tough on crime’’ policy. In contrast to other tough on crime policies where deterrence is the main goal, the first decisions regarding supermax facilities were not to scare off American criminals by showing hard punitive measures. In addition, there was not much extra attention drawn to the correctional methods, as the USP Marion was more or less an experiment of supermax facilities. In this way, the rise of a federal supermax prison was not particularly part of the United States tough on crime policy, rather was it a consequence of overpopulation of prisons, which in return can be subscribed to the tough on crime policy. As criminal law researcher Riveland stated: ‘’supermax prisons have become political symbols on how ‘tough’ jurisdiction has become’’.26 The use of supermax facilities was sold as a way to deal with ‘’the worst of the worst’’, but this implies a mere strategy than a goal.27 In this way, it was more proposed as a quick solution than a long-term policy. Although the USP Marion is outside of state jurisdiction and falls directly under the federal government, there has been little control of the Department of Justice or the District Attorney on the USP Marion. This was one of the criticisms from the many activist groups that demanded a revision of the supermax system. Congress had neglected the poignant situation in the USP Marion until the stabbing incidents of 1983. Moreover, after riots broke out after this incident, medical aid to the wounded prisoners was denied. Their statement also includes a great critique on the biasness of Ward and Breed as they intentionally omitted crucial information:

25 Zimring, F. E. (2001). Imprisonment rates and the new politics of criminal punishment. Punishment and Society, 3, 163. 26 Chase Riveland, Supermax Prisons: Overview and General Considerations (Washington DC: National Insitute of Corrections, U.S. Department of Justice, 1999), 5. 27 Daniel P. Mears, ‘Towards a Fair and Balanced Assessment of Supermax Prisons’, Justice Quarterly, Vol 23, 234.

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‘’The incorrect judgment of credibility reveals a lack of objectivity on the part of Breed & Ward’’.28 However, according to the Marion Prisoner’s Right Project, Congress is also a victim in this case as they are depending on the large-scale propaganda of the BOP, who intent to ‘’sell’’ the lockdown. Therefore, their advice is mainly aimed at Congress that should exercise its power over the BOP so that ‘’Bureau of Prisons officials do what they are supposed to do – follow clearly established law and afford prisoners their basic human rights’’.29 At the end of the report, they ask for immediate action from Congress in the form of a Congressional Hearing. The BOP chose not to respond directly to the accusations and therefore, Congress did not take action as well. Here, we can clearly see that Congress mostly reacted to its own institutions at that time; since the BOP or the US Department of Justice did not request a new assessment of the legitimacy of the USP Marion, there was no direct Congressional Hearing. The BOP only had to give account for their actions if Congress requested it, as would later happen in 2012.

The need of a new facility In September of 1989, BOP Director J. Michael Quinlan requested a more adequate approach to the implementation of supermax prisons. The USP Marion was not built as a control unit prison and it would not take long before it got crowded. Therefore, in 1993 the construction of a new federal supermax prison began in Florence, Colorado. When a FOIA request was turned down by Wallace H. Cheney, General Counsel of the BOP, the People’s Office responded by pointing out the similarities between the USP Marion and the new ADX in Florence. Even though, BOP officials convened to look at revising the supermax system in the new facility, a general fact sheet reflects that in the ADX unit the conditions would not be improve relative to the USP Marion.30 After the first two letters, the Committee to End the Marion Lockdown wrote a letter to J. Michael Quinlan in order to get more answers on these conditions. After their appeal was turned down,

28 ‘Response to report and recommendations of Breed and Ward report to the Judiciary Committee on Marion Federal Prison’, March 1985: http://freedomarchives.org/Documents/Finder/DOC3_scans/3.susler.cunningham.response.report.3.1985.p df. 29 Jan Susler and Dennis Cunningham, ‘Response to the report and recommendations of Breed and Ward report to the Judiciary Committee on Marion federal prison’, Marion Prisoners’ Rights Project, March 1985:http://freedomarchives.org/Documents/Finder/DOC3_scans/3.susler.cunningham.response.report.3.1 985.pdf. 30 ‘Letter to Wallace H. Cheney concerning the ADX Florence’, The People’s Office, January 8 1991: http://freedomarchives.org/Documents/Finder/DOC3_scans/3.correspondence.susler.to.cheney.enclosure9. 1.8.1991.pdf?_sm_au_=iVVWST15Ms0tPVrR.

14 the CEML send a letter to all of its members in which they solicited to reach out to all members of the Congressional Judiciary Subcommittee for a Congressional Hearing. Congress did not respond to this and, as a result, the decision-making process regarding the ADX Florence never became fully apprehensible for outsiders. Therefore, it is difficult, even today, to really assess how the policy-decisions regarding the ADX Florence were made. The BOP plans were kept secret, but in the course of 1992, the BOP released some documents regarding the benefits of the new prison in which they promise to build a gentler more accessible supermax prison. By using the word ‘’room’’ instead of ‘’cell’’ and by focusing on ‘’institutional careers’’ of prisoners, the BOP intended to sell its new prison to a larger audience. Together with local media as the Denver Post, the BOP gave the impression that the new facility would only house the worst criminals such as neo-Nazis, serial killers and drug lords as John Gotti. Associate Professor in American Studies Robert Perkinson calls the parties that left the impression that only the ‘’worst of the worst’’ were to be imprisoned in the ADX Florence, prisoncrats. These are not per se politicians; instead, Perkinson actually targets the ‘’individual penal institutions, each caught within the matrix of the dominant social order’’.31 This implies that the American government and especially Congress did not have direct influence or did not want to have direct influence on prison policy in the early 1990s. Only this argument would be too narrow as, as well as under Reagan as under Clinton, Congress has implemented dozens of crime policies in which they favor social control over social reform. Although this bipartisan approach to crime made it easier for the BOP to establish the new maximum security prison in Florence, it did not per se have a direct influence in it. Although the protests against the opening of the Colorado prison would not stop after its opening in 1994, there was almost no attention for it in the national media. Some local newspapers kept reporting on the prison and its inhumane conditions, but the national newspapers were surprisingly quiet. This was the result of the imprisonment of some of the ‘’worst of the worst’’ domestic terrorists at the end of the 1990s. The incarceration of Theodore Kaczyncski, ‘’the Unabomber’’, in 1998 and that of Robert Hanssen, the Soviet spy, in 2001, somewhat justified the use of supermax prisons; these were the worst enemies on American domestic soil and should therefore be under surveillance all of the time. This raises important questions about

31 Robert Perkinson, ‘Shackled Justice: Florence Federal Penitentiary and the New Politics of Punishment’, Social Justice Journal, Vol. 21 No. 3, October 28, 1994.

15 the nature of prisoners in supermax prisoners and its relationship with what is justified within prison policy. It questions if a certain form of dehumanization takes place whenever we trial terrorists or traitors and if we still think that they can be rehabilitated. Although this is a somewhat bold statement, this can be an explanation for the little attention paid to the ADX in Florence at the 1990s. This dehumanization process is also noticeable when looking at Obama’s Guantánamo policy that will be discussed later on in this chapter. In 2004, the Abu Ghraib revelations shined a new light on human conditions in prisons, those domestic and foreign. There was a renewed interest in the ADX Florence from sociologists, scholars and newspaper from 2004 onwards. However, it would still take eight more years until the first Congressional Hearing on the supermax facility and its solitary confinement practices would take place. For the first time, the United States prison practices abroad brought up a discussion on domestic soil. In 2005, a group of psychiatrists filed an Amicus Curiae Brief in the Supreme Court during the Wilkinson v. Austin case in which they stated that: “[n]o study of the effects of solitary or supermax-like confinement that lasted longer than 60 days failed to find evidence of negative psychological effects’’.32 After this case, many law suits based on the violation of the Eighth Amendment33 would follow and more scholars and psychologists would examine the conditions in supermax prisons. In 2009, the scale of the use of supermax imprisonment gained publicity as a report on the Tamms supermax facility showed that almost 50 of its prisoners spent their sentences in complete solitary confinement.34 The Chicago Tribune caught up on this story and one of its reporters, Gary Marx, visited on site to report on its current conditions.35 In late February, Illinois Governor Pat Quinn announced that due to budget cuts he intended to close down Tamms correctional facility. The closing down of this prison would save the state up to $26 million annually according to Quinn, but he couldn’t count on the support of the rest of the state counsel. Although the closing of the facility would save the state of Illinois a fixed amount of money per year, it

32 Wilkinson v Austin, 2005 WL 539137, No 04-495 (3 March 2005) (Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent). 33 ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’, U.S. Const. amend. VIII. 34 George Pawlawczyk & Beth Hundsdorfer, “Trapped in Tamms: Supermax Prison Confines Inmates to Cells 23 Hours a Day”, Belleville News-Democrat, August 5, 2009. 35 Gary Marx, ‘A look inside Illinois’ only supermax prison’, The Chicago Tribune, February 27, 2009: http://articles.chicagotribune.com/2009-02-27/news/0902260729_1_mentally-ill-inmates-illinois- department-controversial-prison.

16 would also impact the economy that was created around the prison. Therefore a ‘Closure Economic Impact Study’ was necessary in order to define the benefits of closing down the facility. The outcome was negative; the closure of the facility would result in unemployment and extra costs to re-locate the facility employees.36 However, it appeared that the media reportage on the Tamms prison benefited Quinns case and eventually, the facility would close its doors in 2013. However, the closing down of these facilities were not arbitrary choices. United States national politics had finally caught up on the case of solitary confinement and supermax prisons in June 2012 when the first Congressional Hearing on this case was held in Washington DC. It was commissioned by Illinois Senator Dick Durbin and took place before the Committee on the Judiciary. Its main goal was to reassess solitary confinement, especially human rights and the public safety consequences. The hearing focused mostly on solitary confinement and the role the BOP played in facilitating that method. Statements during the hearing were made by, among others, Charles E. Samuels, director of the Bureau of Prisons, Craig Haney, a Professor of Psychology and Christopher Epps, Commissioner of the Department of Corrections in Mississippi, a state that already had banned solitary confinement mainly for budget reasons back in 2010. Durbin opened the hearing by specifically focusing on the numbers of prisoners that were kept in solitary confinement that day, 81.622 prisoners, and a plea to all members present to visit one of these prisoners to look at the specific conditions. This said, Sen. Lindsey Graham (Rep-S.C.) takes over by questioning Charles E. Samuels on the awareness of the BOP on this case. During Samuels’ statements it becomes clear that the BOP uses solitary confinement as a deterrent; the numbers show that the amount of assaults has declined and therefore, the method was beneficial to guarantee the prison staff’s safety.37 However, the bureau itself had not constructed yet a research in order to assess the effects of supermax imprisonment on the mental health of prisoners. This extensive study was not deemed to be necessary, according to Samuels, as any prisoner is assessed by a psychiatric staff

36 ‘Impact of the Closure of Selected Department of Corrections Facilities, 2012’, Report to the Illinois Department of Corrections, February 2009: http://cgfa.ilga.gov/upload/IDOCFacilityClosureEconomicImpactStudy.pdf. 37 June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG- 112shrg87630.pdf, 11.

17 before their prison times begins. Yet, Durbin questions Samuels’ own ability to spend a distinct amount of time in solitary confinement by saying: ‘’Do you believe you could live in a box like 23 hours a day […], it would not have any negative impact on you?’’. On top of that he questions if there are enough psychologists to determine if a prisoners can handle solitary confinement and if prisoners have the possibility to challenge their punishment. Samuels acknowledges that he does not know the exact number of prisoners in solitary confinement, but that there are enough psychologists available for prisoners to fall back on. After the medical effects on prisoners are discussed, the Hearing goes on to a more economic evaluation of the use of supermax prisons. Christopher Epps has executed the shutdown of supermax correctional facilities in Mississippi and emphasizes that the closure of these facilities do not have an immediate impact on the safety as he implemented different programs that focused more on rehabilitation instead of punishment. They saved $5.6 million dollars on a year basis and violence within the prisons has not increased.38 As we will see in the last chapter, it seems that prison reform on a state level will again fulfill an exemplary function for the federal prison policy. The problems found in the policy-making around supermax prisons is mainly addressed when lawyer Stuart M. Andrews Jr. According to him, there should be independent counsels to evaluate the BOP’s policy, ‘’because right now it is just a system reviewing its own system’’.39 During the Congressional Hearing, Durbin appealed to the empathy of the Committee and Samuels by inviting Andrew Graves, a former prisoner who spent almost his whole sentence in solitary confinement. Graves gave a quick insight into prison life in solitary confinement: “No one can begin to imagine the psychological effects isolation has on another human being. Solitary confinement does one thing; it breaks a man’s will to live.” Together with Graves’ statements on the conditions in supermax prisons, Durbin concluded the hearing by stating that: ‘’Politicians get elected and reelected by being tougher and tougher sometimes, and maybe it is time for us to step back and say let us be smart, let us be thoughtful. When it is all over, let us write a record that we can be proud to tell our children about in terms of who we are and what we have done’’.40 It becomes clear from this Congressional Hearing that the BOP did not have implemented a

38 June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG- 112shrg87630.pdf, 23. 39 Ibid, 26. 40 Ibid, 39.

18 structured program in order to fulfill medical and psychological needs of prisoners in solitary confinement; Samuels was not consisted in his answers before the Committee and was not able to give an exact number of prisoners in solitary confinement. As the Congressional Hearing was the first time American mainstream politics showed interest in the case of supermax prisons, and therefore can be seen as a first step towards supermax reform. Already in February of 2013, Durbin announced that the BOP agreed on an independent assessment of solitary confinement by the National Institute of Corrections. This was not the only result as since the hearing, the BOP had closed two Special Management Units and reduced its supermax population with 25 percent.41 However, the research done by the NIC was not as independent as it appeared to be as that organization was partially funded by the BOP. Nonetheless, the NIC had contracted out the research to CNA Analysis and Solutions that was headed by Ken McGinnis, who served as a director for many of the Michigan and Illinois correctional facilities (that were directed by the BOP). These factors made the investigation or audit untrustworthy according to Solitary Watch. On their website they state: ‘’The audit may recommend incremental change by ‘’reclassifying’’ a small number of isolated prisoners, but it is unlikely to produce any serious challenge to the use of solitary confinement’’.42 After the audit was conducted, a new Congressional Hearing took place on February 25, 2014. In the opening statements, again given by Senator Durbin, he addresses specifically to the issue of children locked away in solitary confinement. Since the hearing in 2012, Human Rights Watch had interfered in the case of solitary confinement and published a report together with the American Civil Liberties Union (ACLU) in October of 2012. This report focused on the isolation of young people and stated that: ‘’ Solitary confinement can exacerbate short- and long-term mental health problems or make it more likely that such problems will develop. Young people in solitary confinement are routinely denied access to treatment, services, and programming

41 ‘Durbin Statement on Federal Bureau of Prisons Assessment of its Solitary Confinement Practices’, February 4, 2013: http://www.durbin.senate.gov/newsroom/press-releases/durbin-statement-on-federal- bureau-of-prisons-assessment-of-its-solitary-confinement-practices. 42 James Ridgeway and Jean Casella, ‘Under Fire, Federal Bureau of Prisons Audits Use of Solitary Confinement –and buys a new Supermax Prison’, Solitary Watch, October 18, 2013: http://solitarywatch.com/2013/10/18/fire-federal-bureau-prisons-audits-use-solitary-confinement-buys- new-supermax-prison/.

19 required to meet their medical, psychological, developmental, social, and rehabilitative needs.’’43 Thus, focus from the international community, new lawsuits that challenged the treatment of prisoners with mental illnesses and the increased media coverage on the ADX in Florence made the need for a reassessment of the previous hearing even more necessary. In the hearing of 2014, it is remarkable to see that most of the statements speak in favor of reform even though those who were invited to join the panel were mostly Directors or Board Members of the United States’ biggest supermax prisons. They plea for restrictive programs that are forced on the rehabilitation of prisoners, instead for those who show violent behavior and no program is suitable. Rick Raemisch, Executive Director of the Colorado Department of Corrections, the department that also directs the ADX in Florence, states that he is absolutely willing to implement an action plan to reduce the numbers in SHU’s drastically. However, he acknowledges that it is not just a problem of the United States, it is an international problem. He states that: ‘’ I believe reform requires the cooperation of corrections leadership, corrections staff, legislators, stakeholders and the community.’’44 During the Questions for the Record, he elaborated further on the idea that the ADX Florence really should act on signs of mental health problems of prisoners: ‘’You can only imagine what an administrative segregation cell does to someone, who is mentally ill to begin with. Our goal is zero major mentally ill inmates in segregation.’’45 In this way, correctional leaders are not completely opposed to the idea to implement reform; it is just a lack of cooperation between the parties

Inconsistent policy Even though it seemed that even the BOP was ready for change by agreeing on necessary reform, the federal government purchased a new facility that was to be transformed into a new federal supermax prison. In a letter to Governor Quinn in 2009, Secretary of State, Hillary Clinton declared that after President Obama issued an order in January of that same year to close down

43 ‘Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States’, HRW and ACLU, October 10,2012: https://www.hrw.org/report/2012/10/10/growing-locked- down/youth-solitary-confinement-jails-and-prisons-across-united. 44 ‘Testimony of Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences, February 25, 2014: https://www.judiciary.senate.gov/imo/media/doc/02-25- 14RaemischTestimony.pdf. 45 ‘Questions for Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences, February 25, 2014: https://www.judiciary.senate.gov/imo/media/doc/022514QFRs-Raemisch.pdf.

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Guantánamo Bay Prison, a new correctional facility in Thomson, Illinois would be used for the detainees that were left in Cuba. This prison would be an administrative segregation unit whereby ‘’the security of the facility and the surrounding region is our paramount concern’’. It will exceed the security standards at Florence and local law enforcement will work together with the Federal Joint Terrorism Task Force in order to decrease contact between the prisoners. Secretary Clinton gives special thanks to Governor Quinn and Senator Durbin for their advice and assistance during the evaluation of this proposal.46 This is at least remarkable, considering Senator Durbin and Governor Quinn took a clear stance against the use of segregative units. In October of 2012, at the same time the ACLU report on youth detainees in isolation was being published, the BOP officially purchased the facility from the state of Illinois. Yet, the two elected Illinois officials who approved this purchase were, strangely enough, also the two officials who were known for challenging solitary confinement. In a press conference, Governor Quinn praised the support of President Obama and Senator Durbin for an opportunity ‘’for hard- working people who live from paycheck to paycheck […] and who make sure that we have a federal prison that is top-notch.47 Their prime motivation to support the Thomson purchase was job creation and economic growth. This was later confirmed by Durbin’s press statement on his website stating that: ‘’This historic action will lead to the creation of hundreds of construction jobs and over 1,000 permanent jobs at this federal facility.’’48 Although both Illinois statesmen, the Secretary of State and President Obama agreed on the importance of this purchase, the House of Representatives did not approve of the sale in the first place. It was mainly because the majority of the HoR did not approve of locking down potential dangerous terrorists on domestic soil. Another argument looked at a more financial perspective that will be elaborated further in chapter three; the purchase of the old Thomson facility would bring a lot of renovation costs with it. In that respect, a new stream of funds was necessary in order to even open the facility. Besides the funds, the Department of Justice declared that the transfer of potential dangerous terrorists on to domestic soil was problematic. The facility could be used as a way to reduce the problem of

46 ‘Letter by Hillary Clinton and her support for Thomson Prison’, December 15, 2009: https://www.whitehouse.gov/sites/default/files/091215-letter-governor-quinn.pdf. 47 ‘Press Conference Governor Quinn on the Thomson sale’, Youtube, October 2, 2012: https://www.youtube.com/watch?v=mFAnIH8-fyM#t=120. 48 ‘Durbin, Quin announce sale of Thomson Correctional Center to the Federal Government’, Senator Durbin website, October 2, 2012: http://www.durbin.senate.gov/newsroom/press-releases/durbin-quinn- announce-sale-of-thomson-correctional-center-to-the-federal-government.

21 overcrowding in other supermax prisons, but it should not function as a tool to close down Guantánamo Bay. Eventually, the Thomson prison funding would be approved and the prison is planned to be operational already in 2016. But how was it possible that Senator Durbin, an advocate for solitary confinement reform would be so in favor of the new facility. It is clear that the creation of jobs was a unique selling point of the plan, still his actions appear to be untrustworthy. When Solitary Watch asked Senator Durbin’s office to respond to this given, they came with this reaction:

‘’Senator Durbin’s efforts to secure the purchase of Thomson prison, reform solitary confinement practices, and encourage smarter sentencing practices are all consistently aimed at improving the safety, rights, and treatment of inmates, prison guards and the broader community. He will continue his work to ensure that all prisoners, whether in Thomson or elsewhere in the Federal system, are treated humanely and that no one is housed in segregation unnecessarily’’49

In this statement, his rhetoric shifted from speaking from a prisoners’ perspective, as he did during the Congressional Hearings to a more community-based perspective. In the latter case, the segregative units function as a way to ‘keep society safe’, an ideal which came from the ‘’tough on crime’’ period in the 1980s. So, why could the Thomson prison case be viewed with different standards than for example the ADX in Florence, Colorado? This brings us back to the idea of the ‘dehumanization’ of terrorists. According to sociologists like Nick Haslam, the rhetoric that was used during the War on Terror, contributed to the dehumanization theory in which one’s enemies can be dehumanized by portraying them as monsters, or the axis of evil.50 They endanger the free democratic society, its most ideal form of human life, and are, therefore, less human. It goes even further when it is declared that: “fundamental to a nation’s public support for war… Dehumanizing others renders the requisite horrors of war tolerable.”51 So, in order to render a war against a certain group of people, dehumanization seems almost necessary. As the United

49 Aviva Stahl, ‘New Federal Supermax Prison will double capacity for extreme solitary confinement’, Solitary Watch, January 15, 2015: http://solitarywatch.com/2015/01/15/new-federal-supermax-prison- will-double-capacity-for-extreme-solitary-confinement/. 50 N. Haslam, ‘Dehumanization: An integrative review’, Personality and Social Psychology Review, 10(3), 257. 51 K. C. Elliott, ‘Subverting the rhetorical construction of enemies through worldwide enfoldment’,.Women and Language, 27(2), 100.

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States government has never intended to ‘humanize’ the prisoners of Guantánamo Bay, it makes it, from a moral perspective, easier to put them in a supermax prison. Over the past thirty years we have seen great shifts in the political influences in the supermax policy debate. There are critical moments, as during the opening of the ADX in Florence and the publishing of human rights reports in which Congress has stepped in. This was often under pressure of the media or Civil Rights groups. This shows that pressure from human rights advocates and the media can trigger political action. However, even when Congress stepped in it appeared to be difficult to push through reform as the BOP practically operated on its own. It had its own checks and balances system that prevented the BOP to be thoroughly questioned on its policy. Besides the direct influence of the BOP, the dehumanization made it possible to be very inconsistent when taking a stance on supermax facilities. As shown, there has been made a clear distinction in the appeal for prison reform when it comes to terrorists or potential dangers to the whole American nation. These prisoners are in a way dehumanized which makes it less complicated to expose them to the conditions of supermax facilities.

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3. Supermax prisons as a crime control industry In December of 1998, Eric Schlosser coined the term prison-industrial complex, a set of bureaucratic, political and economic interests that encourage an increased spending on imprisonment, regardless of the actual need.52 This idea of imprisonment as a mode of profit was not new. Already in 1993, at the time of the opening of the ADX in Florence, Norwegian sociologist Nils Christie argued that the crime control industry is in a favorable position as there is an endless supply, crime will always exist, and an endless demand of service, as security is always on the top agenda of most national governments.53 As more than 2.4 million Americans serving a prison sentence today, this day and age can be considered the golden age of profit- making prisons. The last few years, the number of private prisons that are managed by third parties, mostly big corporations, has grown with almost 500 percent. Although this form of imprisonment is often praised by American politicians and economist as a real expression of the free market, it has also triggered many forms of corruption and exploitation. However, it remains difficult to determine if the focus on profit-making prisons is really applicable to supermax prisons as well, as these are often not privatized. Besides the focus on fiscal benefits, whether it is the creation of jobs or the expansion of the marketplace inside the prisons, there are two other main factors that contribute to economic dimensions of the supermax debate. In the first place, I will discuss the budget of the BOP because this more or less decides whether or not the operation costs of supermax prisons can be maintained. Since the fiscal budget of the BOP is often determined by a political agenda, there will be some overlap with the previous chapter. After that, I will discuss the proposed economic benefits. In the last part of the chapter, the benefit-costs analysis, often done by economists, will assess whether or not the economic implications of supermax prisons will benefit the level of security and if it is worth the costs. Since the three factors shown above are heavily discussed points in the possible opening of the Thomson facility, I will mainly address this case in the coming chapter.

Overcrowding and budget problems Even though the spirit of the free market and the privatization of prisons that came along with it seem as the most important factors when talking about the economic aspects of prison policy, the

52 Eric Schlosser, ‘The Prison-Industrial Complex’, The Atlantic, December 1998: http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/304669/. 53 Nils Christie, Crime Control as Industry (Abingdon: Routledge, 1993), 11.

24 budget problems of the BOP, especially from the 2010s onwards, have also shaped current day prison policy. The economic policy of the BOP is liable to the economic crisis and the need for budget in times of political hardship. As we have seen in the previous chapter, in 1989 BOP director Quinlan emphasized the importance of a new federal supermax facility to lighten the burden of the growing prison population in the USP Marion. To accomplish this, a drastic increase in the BOP budget was necessary. If an increase in budget is needed, Congress is the only institution that can appropriate a bill to release extra funding. Between 1990 and 1992 a significant increase in the BOP budget made the construction of the new supermax prison possible. However, other than a budget request form, there are no other sources available on the funding of this facility. Whenever the proposed increase in budget is too considerable, Congress needs to appropriate the extra funding. Yet, there are little records of the financial aspects of the construction of the ADX in Florence. Although the state expenditures as cost per resident grew with $33 between 1990 and 1992, there are almost no media or governmental outlets that reported on this issue. Once again, it seems that the BOP has almost complete autonomy when it comes to their policy, even if it is their financial policy. When looking at newspaper articles that were published just after the opening of the ADX Florence in 1994, there are not a lot of articles to be found with a more critical outlook on the financial funding of this prison. It would take until the end of 1997 before the first more critical approach of the new facility was published; The New York Times published an article on the ADX in which it stated that Colorado County was ‘’grateful to host the Alcatraz of the Rockies’’. Although the article does not specifically explore the availability of the federal budget, it does state that Federal officials in Colorado have lobbied greatly in Washington in order to affirm the funding. The new prison complex would bring about new job opportunities and economic growth that stimulated political pressure in Congress to appropriate the funding. This emphasis on the economic opportunities of prisons in rural areas would later also play an important role with the appropriation of the bill to fund the new Thomson prison. In this way, economic state politics could open up new budgets for the BOP to fund federal prisons. It has to be said that since 1994 there have, of course, been some articles written on the federal supermax prison; only they appear to be somewhat superficial. In 2006, there is renewed attention for this case as there are some alarming indications that budget cuts would endanger the safety of the personnel inside the prison. The BOP requested a $500 million increase in budget,

25 but Congress only approved of $321 million. It was the same year the USP Marion was downscaled to a medium-security prison and the ADX in Florence became the only federal supermax prison in the United States. Although extra money for the transfer of prisoners was needed, the BOP was denied four extra budget increases since 9/11. The American Federation of Government Employees started a petition in order to create awareness among governmental officials as ‘’the risk of escapes and riots will increase, which endangers the lives of the current workforce, as well as the communities outside of the prison’’.54 This cry for help had its effect as from 2007 onwards the BOP budget increased drastically with almost $5 million dollars in total. A great increase compared to the budget cuts of $4 million dollars the year before. The Department of Justice, the BOP included, also can appeal against the budget cuts of Congress. This was the case in 2013, when Congress decided to implement $1.6 million of cuts in the DOJ’s budget; this would mean that the BOP would lose $338 million of its annual budget, a cut that would have drastic implications according to Attorney General Eric Holder. In a letter to Democrat Senator Barbara Mikulski he states that the planned Congressional cuts would prevent the recently purchased prisons to go full operational, including the supermax facility in Thomson, Illinois. Eventually, this political pressure worked as, in December of 2014, the FY2015 Omnibus Appropriations bill passed to release extra funding to prepare the opening of the Thomson facility. Once again, political pressure, this time in the form of a letter from the Attorney General, could serve the economic agenda of the BOP. Still, it raises questions on the accountability of the BOP. In official terms, Congress has to appropriate every extra funding needed, but there are almost no accounts on the critical assessment of the BOP’s operations or on how they spent the budget exactly. It would take until January 2016, before Republican Senator Rand Paul sponsored a bill to bring more accountability to the BOP. The proposed bill, the Federal Prisons Accountability Act of 2016, would encourage more supervision on the BOP’s policy by, among others, limiting the BOP’s Directors term to ten years maximum. According to Paul, the Director of the BOP has ‘’significant budget authority over taxpayer dollars without their appointment having been subject to confirmation by the United States Senate. […] the Director of BOP is appointed by the U.S. Attorney General without Senate approval. […] This legislation would support subjecting the Director to the same congressional review as other top law enforcement

54 BOP Employees, ‘The Crisis at Federal Prison’, American Federation of Government Employees, Fall 2006: https://www.afge.org/index.cfm?page=ContentTest&fuse=document&documentID=1523.

26 agency chiefs within DOJ’’.55 This act was supported by Republicans as well as Democrats and fits in with this renewed interest in prison policy, as we have seen in the previous chapter. The planned opening of the new Thomson prison must have played a role as well, as the financing of this prison was heavily discussed. However, through extensive lobbying in Washington and sometimes a little help from local media, new funds can be made available for the BOP in order to keep the supermax system in process.

The Thomson prison purchase and its proposed benefits In 2009, Congress ruled by a Republican majority would approve a bill that prevented the Obama Administration from funding the closing of Guantánamo Bay. Just a few months before, President Obama had announced his plans to transfer the detainees to American soil, in particular the ADX facility in Florence. This transfer would cost $80 million, an amount that would have been subtracted from the $91 million supplemental war funding to support intelligence operations in Iraq. Republicans and even some leading Democrats opposed this plan as an incarceration of international terrorists on domestic soil would threaten national security. The bill explicitly barred the opening of special war funds to transfer, release or incarcerate any of the detainees in Guantánamo Bay to American soil.56 Therefore, when Attorney General Holder requested more funding in order to keep the BOP’s plans in operation, the DOJ specifically stressed that the Thomson facility would not specifically serve as an alternative for Guantánamo Bay, but instead would alleviate the overcrowding in the BOP’s other high-security facilities.57 However, it would be beneficial to emphasize the operation costs of Guantánamo Bay compared to those of the ADX in Florence. The operation costs of Guantánamo Bay amount to $450 million per year which eventually comes down to $2.7 million per prisoner. It would cost $78.000 per prisoner if the incarceration took place in the ADX in Florence, 35 less than incarcerating prisoners in Guantánamo. According to a Defense Department assessment, the transfer of Guantánamo Bay prisoners would save the department between $65 million and $85

55 Rand Paul, ‘’McConnell, Paul, Lee & Booker Sponsor Bill to Bring Accountability to Federal Prison’’, Press Release, January 21, 2016: https://www.paul.senate.gov/news/press/mcconnell-paul-lee-and- booker-sponsor-bill-to-bring-accountability-to-federal-prisons. 56 House of Representatives Bill 794, 111th Congress (2009). 57 Aviva Stahl, ‘New Federal Supermax Prison will double capacity for extreme solitary confinement’, Solitary Watch, January 15, 2015: http://solitarywatch.com/2015/01/15/new-federal-supermax-prison- will-double-capacity-for-extreme-solitary-confinement/.

27 million per year. These costs would otherwise be spent on precious U.S. military resources, and therefore, it would be in the best interest of the US Defense Department to transfer the prisoners to American soil. This was supported by, among others, Senator Dick Durbin who saw the coming of these new inmates as a new impetus for the purchase of the Thomson facility. His remarks on the dehumanizing practices in Guantánamo Bay prison in 2005 were now, in 2009, accompanied by economic arguments. He stated that the costs ‘’would be fiscally irresponsible during ordinary economic times. But it’s even worse when the Department of Defense is struggling to deal with the impact of sequestration’’.58 Even though the closing down of Guantánamo Bay would be beneficial for the Defense budget, it would also mean that the BOP should include the incarceration costs of these prisoners within their own budget. This proved to be especially problematic as they are struggling for years to cut the costs of the overcrowded American prisons. Even though the Thomson facility could not be purchased for transfer reasons, the BOP remained an interest in the facility. Already in 2011, the BOP and the state of Illinois (represented by Senator Durbin) negotiated over a federal purchase of the Thomson facility. A letter from Senator Durbin to the Attorney General Holder states clearly that the Obama Administration has no intention to transfer Guantánamo Bay prisoners to the new Thomson facility. A purchase would only have the goal of distressing the BOP’s overcrowding prison capacities.59 In a response letter, Attorney General Holder acknowledges the rising problems of shortage of prison beds, yet the requested $237 million for the purchase, renovation and operation of the facilities cannot be reserved from the total budget of the BOP. Above all, he encourages Durbin to continue his quest of appropriated funds, but stretches that the Thomson facility can under no circumstances house GB prisoners.60 As we have seen in the first part of this chapter, Holder would later take more direct action in persuading Congress to open up extra funding for this project. Again, by leaving out the Guantánamo Bay argument, the need for a new facility solely depended on the alleviation of the BOP’s overcrowded prison system.

58 Carol Rosenberg, ‘Total U.S. tab tops $5B for Guantánamo Prison’’, The Miami Herald, July 30,2013: http://www.miamiherald.com/news/nation-world/article1953705.html. 59 ‘Letter from AG Eric Holder to Barbara A. Mikulski’, Office of the Attorney General, February 1, 2013: https://www.scribd.com/doc/126892917/DOJ-Letter-February-Sequester-Hearing. 60 ‘Press release: Obama Administration will not transfer prisoners from Guantánamo Bay to Thomson’, Senator Dick Durbin, April 4, 2011: http://www.durbin.senate.gov/newsroom/press-releases/durbin- obama-administration-will-not-transfer-prisoners-from-guantanamo-bay-to-thomson.

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Compared to a minimum or medium security prison, the operation of a supermax prison is costly. So, in order to really sell the new Thomson purchase to a larger audience, they had to present some additional benefits of the new facility. As I have shown in the previous chapter, Dick Durbin, the Illinois Senator that initiated the Congressional Hearings on solitary confinement, hailed the Thomson purchase as an economic benefit. In a press conference after the announcement that the complex was purchased by the federal government, Durbin stated that this facility would be ‘’the economic future of Northern Illinois’’.61 With this statement he aimed at the job opportunities that would be created in order to renovate and operate the Thomson facility as a supermax prison. Even though this can be related to the privatization of prisons trend of the past few decades, Durbin ignores the fact that the profit-making aspect of these prisons often relies on the productivity of the inmates themselves. Large companies such as Starbucks and McDonald’s have employed inmates for as low as 30 cents an hour to produce, among others, cutlery and cups. This trend has become more popular from the 2000s onwards and it is safe to say that the United States prison system has become a profitable machine for the government as well as for big enterprises. However, the ADX in Florence does not hold the opportunity for inmates to work as it would be considered too hazardous; instead their conditions are focused to even be counter- productive as solitary confinement often stimulates the dehumanization of prisoners. This became clear when an Amnesty International representative was allowed to tour the prison back in 2001. The BOP prohibited prison wards to speak about their working conditions in public and reporters were in general not allowed to enter the prison. After their visit, Amnesty International published a report on the horrific conditions and the restrictions on reporting on the prison became even harsher. It would take until 2015 that the media were allowed to visit the prison; The New York Times reporter Mark Binelli wrote an article that stated that inmates spend their days in small cells with concrete or rubber walls (to protect them from damaging themselves) that was closed with metal sliding doors. A small window would provide the cell with a bit of daylight and everything inside the cell, including the sink-toilet combo and the bed was made of hard concrete and steel so there could be no chance of making weapons out of the equipment. All in all, not a suitable room to implement some kind of production forms in order to give the inmate useful

61 Senator Dick Durbin, ‘Thomson Prison Sale Press Conference’, Youtube, October 2, 2012: https://www.youtube.com/watch?v=dugQPZ3aFOk.

29 tasks. There is room for exercise and ‘’recreational time’’ although those also take place in outside cages; besides, they are not allowed to work out in cages next to each other to keep social contact at a minimum. The conception of the inmates as ‘always ready to attack’ makes the plan for labor impossible. On top of that, because prisoners in the ADX are often serving life-long sentences it would not make sense to employ them anyway as part of a rehabilitation program. So, in that scenario, the argument that inmate can be an added value as a workforce is not valid. Yet, this does not mean that the opening of a new federal supermax prison could not benefit the community surrounding that prison. A strange detail in one of the conversations with a former ward of the ADX Florence in 2007 showed that inside the prison, for the small amount of visitors they allowed, there is a place where you can buy ADX merchandise, including coffee mugs and T Shirts that show the text ‘’Property of ADX Florence Supermax Federal Prison, Psycho Ward’’.62 Besides this strange type of retail, the rural area surrounding the new facility in Thomson Illinois and its small local business units could benefit greatly as it would create job opportunities for correctional officers, contractors and medical staff. According to Schlosser: ‘’Working as a correctional officer is one of the few ways that men and women without college degrees can enjoy a solid middle-class life there. Although prison jobs are stressful and dangerous, they are viewed as a means of preserving local communities’’.63 This is probably the reason why the Fremont County actually donated the land to the federal government instead of selling it to them. The construction of the ADX cost around $60 million, money that would be spent on local Colorado Springs contractors, DLR group and LKA partners. This would create a wave of job opportunities for 1.000 temporary jobs in contracting. On top of that, the ADX would create 750 to 900 extra permanent jobs inside the prison according to BOP documents. In general, the prison system is the third largest employer in the world and apparently not a bad employer. In an interview with CNN’s 60 Minutes, a former ward explained why he had chosen to work in the ADX in Florence: ‘’In our system there’s 144 prisons. And there’s only one Supermax. It’s like the Harvard of the system’’.64 This implies that there is a certain attraction to work in a supermax prison because of its status.

62 Andrew Cohen, ‘Death, Yes, but Torture at Supermax?, The Atlantic, June 4, 2012: http://www.theatlantic.com/national/archive/2012/06/death-yes-but-torture-at-supermax/258002/. 63 Schlosser, ‘The Prison Industrial Complex’, The Atlantic, December 1998. 64 Cohen, ‘Death, Yes, but Torture at Supermax?, The Atlantic.

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In the case of the Thomson facility, the state of Illinois did not gave the land away to the DOJ; instead, after three different taxations, the DOJ purchased the Thomson facility for nearly $165 million. In order to receive the appropriate funding for this purchase, the DOJ had to release some of the benefits that the facility would procure. Sen. Durbin of Illinois helped with that by stating that ‘’the annual operation of the facility is expected to generate more than $122 million in operating expenditures (including salaries), $19 million in labor income, and $61 million in local business sale’’. On top of that, the prison was expected to employ more than 1.100 prison staffers.65 However, Congress would not approve the additional $165 million requested and the BOP and the DOJ allocated funds from three different sources; including the DOJ’s Assets Forfeiture Program. These are confiscated properties and goods that intent to disrupt criminal behavior by forfeiture. Any excessive balance remaining in this fund is called the Assets Forfeiture Fund Super Surplus, which is then available to the Attorney General in order to fund federal law enforcement or correctional activities. In 2012, the DOJ transferred $151 million from this special fund to the BOP’s account in order to purchase the Thomson facility.66 Besides the creation of job opportunities, there are more beneficial factors for the local community. In the first place, the prison is a somewhat non-polluting enterprise; and therefore, environmental activists could not really rally against the coming of this new form of business. But the most discussed benefit is that of the operating expenditures. Large companies use prisoners to produce products and offer services. These types of companies are more or less recession-proof, even expanding in size during hard times. Hence it is somewhat of a vicious circle: recession will eventually trigger crime, which then increases the prison population. When prisons are being approached as profit-making companies it will then stimulate the economy once again. On top of that, the Thomson facility had to be completely renovated in order to fulfill its supermax function. As the facility is 15 years old, it was constructed already in 2001, the renovation costs will add greatly to the $165 million already spent on the purchase. It will cost the BOP approximately an extra $160 million to be operational in the first year.67 However, they

65 ‘Press release Durbin and Quinn Announce Sale of Thomson Correctional Center to the Federal Government’, Senator Dick Durbin, October 2, 2012: http://www.durbin.senate.gov/newsroom/press- releases/durbin-quinn-announce-sale-of-thomson-correctional-center-to-the-federal-government. 66 United States Government Accountability Office, ‘Bureau of Prisons: Management of New Prisons Activations can be improved’, Report to Congressional Requesters, August 2014: http://www.gao.gov/assets/670/665417.pdf, 25. 67 Ibid, 33.

31 present these renovation and operation costs as an extra source of employment. Normally, we also should consider costs as the installment of telephone lines and telecommunication services to inmates. Telephone companies such as AT&T are known for exploiting the prison system business by overcharging prisoners by charging them $3 extra per phone call. This extra profit is then divided between the telephone company and the prison administration.68 Yet again, in supermax prisons, phone calls are not allowed, making also this argument of economic stimulation invalid for the case of the ADX in Florence or the Thomson supermax facility. The press release of Sen. Durbin and the publication of a long list of supporters of the activation of Thomson prison would eventually release the extra $53 million from Congress at the end of 2014 to go operational in 2016. This list of supporters was released by the state of Illinois in order to gain votes to release that extra funding. On this list we can find the political actors in this debate such as Pat Quinn, but it also consists of a segment with only local businesses who have given their support for the opening of the Thomson facility. Among these local businesses are elevator constructors, carpenters, plumbers and metal workers, all in search for an assignment.69 Even the more striking is the last page of the list in which Illinois State has collected editorials and columns that are in support of the opening of Thomson prison. Especially local newspapers such as the Rockford Register Star and the Quad City Times argue that the federal government should not let political discord get in the way and that it should finish what the state government failed to do: making use of the already purchased Thomson facility. Even the Chicago Tribune, one of the state’s most prominent newspapers, stated in a somewhat patriotic article that fear should not have the dominant voice in the Thomson purchase debate.70 Again, media can be used in order to trigger some kind of reaction from Congress. In the previous chapter the media was used as a form to stir up discussion in Congress, this time it is being used in order to put political pressure on the activation on the Thomson prison sale in order to reap economic benefits from its opening. Even though the whole process of the Thomson facility purchase described above seems to be extremely complicated, it is not unusual for the BOP to go through all these bureaucratic

68 Kelley Davidson, ‘These 7 Household Names Make a Killing Off of the Prison-Industrial Complex’, U.S. Uncut, August 30, 2015: http://usuncut.com/class-war/these-7-household-names-make-a-killing-off- of-the-prison-industrial-complex/. 69‘Thomson Support List’, Illinois State Government, 2012: http://www.illinois.gov/idoc/Documents/Thomson_support_List.pdf. 70 Ibid.

32 changes in order to open a new prison. The activation process with every facility consists of four steps: pre activation, partially activated, fully activated and eventually it becomes overcrowded. When looking at the BOP’s proposed plans for the activation of six new prisons from 2010 until 2014, they had difficulties ensuring funds for all of them. Some of these prisons are still partially activated.71 However, the Thomson correctional facility remains the only one who is still in the pre activation phase. This makes the case that a federal supermax prison can be harder to activate in comparison with federal minimum and medium security facilities.

Benefit-costs analysis: operational costs versus the impact of closure Even though it seems that the Thomson facility will become operational in the upcoming years, the arguments on the high costs of a supermax facility remain. Therefore, the federal government has tasked the Urban Institute Justice Policy Center’s research associates Sarah Lawrence and Daniel P. Mears to perform a benefit-costs analysis on the specific case of supermax prisons. A Benefit-cost analysis (BCA) is an economic tool designed for policymakers to determine if a specific policy ‘’represents an effective allocation of resources’’.72 The motive to conduct such a research, were the budget cuts of the BOP in 2006. A critical look of the current fiscal policy was needed in order to really assess whether or not the BOP and the DOJ should continue running their supermax facilities in this particular way. Lawrence and Mears use the BCA in a way that it compares ‘’the benefits and costs or proposed or existing initiatives, such as programs, capital investments, and public policy’’. The first step is to determine which factor or consequence of implementing a supermax policy is a benefit and which one is a cost. On top of that, it is important to determine for which party these factors are benefits or costs; for example, fewer prison assaults are a benefit for the DOJ not per se for society. However, in a few cases, a benefit for one party can be a cost for the other party. This is the case in two of the effects supermax prisons have; it causes additional property taxes and creates new job opportunities, both which are beneficial for the local community, but do have great impact on the BOP’s budget. In the case of the Thomson prison, the additional tax argument would not be valid as well as the facility already was bought and, therefore, the BOP is not taxed additionally.

71 Sarah Lawrence and Daniel P. Mears, ‘Benefit-Cost Analysis of Supermax Prisons: Critical Steps and Considerations’, The Urban Institute: Justice Policy Center, August 2004: http://www.gao.gov/assets/670/665417.pdf, 24. 72 Ibid, 7.

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Yet, it remains difficult, even for Lawrence and Mears to decide which factors/consequences should be taken into account. The table that they used for this BCA assumes that supermax prisons have a positive effect on the recidivism number amongst prisoners. According to the researchers, this reduction in recidivism is a potential benefit of supermax housing. Removing prisoners from the chaotic environment of a general prison would create a more safe and serene environment to serve their term; this would make the implementation of wider rehabilitation programs possible which would reduce the high number of recidivism, which then on the long term could save costs. Yet, as The New York Times have stated in their articles, there is little room for recreational activities. Besides that, the weakened family relationships that are proposed as a ‘’cost’’ in Lawrence and Mears’ table, could also disturb the rehabilitation process. In this way, costs are not always expressed in monetary terms, but in psychological terms. The exact costs of supermax prisons on the mental health state of prisoners are often difficult to measure, but one thing is for sure; the displacement from society in a solitary confinement surrounding incurs lasting damage often in the form of posttraumatic stress disorder that could be a costly expenditure for society and the BOP on the long term. Supermax facilities demand extra costs when it comes to security measures; therefore, to do a BCA, the first step is to map these extra costs. Then, those extra costs can be opposed to the fiscal benefits of using supermax prisons. In their research, Lawrence and Mears intended to outline the fiscal benefits in terms of safety and grievances. Reduced violence could save the prison administration $1200 of material damage and $2500 of medical costs per assault. Prisoner and correctional staff satisfaction could reduce the number of grievances that cost approximately $500 per day and could reduce the number of sick days with $800 per day. These costs are the so called baseline values; when multiplying these with the number of prevented assaults, grievances and sick days, we get an overview of the benefits in monetary terms. The costs consist of construction works to upgrade the facility (which can go up to $500.000), purchasing and installing new surveillance techniques and the need for more staff.73 Of course some of these costs are one time investments such as the extra construction work, but the installment and maintenance of a supermax facility remains an enormous item of expense. Yet, this type of BCA is from a DOJ perspective and does not include the benefits and costs for society or the local

73 Ibid, 33.

34 community. When we look solely to the BCA from a DOJ’s perspective, the total benefits equal $640.000, whereas the total costs would be $886.600, leading to a net loss of $246.000. Even though these numbers show that supermax prisons are not economically advantageous, there are some weak links in this BCA. In the first place, the notion of time and inflation is not taken into account. The numbers that show a decrease in assaults or sick days could change in the future. In the second place, it is difficult to measure ‘’reduced stress’’; earlier research such as that of Terry A. Kupers have showed that the limited access to personal contact actually induces stress, among prisoners as well as correctional staff.74 Lawrence and Mears conclude their research that the execution of a BCA could be useful in the decision-making process as it ‘’includes […] reliable data and undertaking rigorous analyses of program and policy impacts.75 However, it still seems as if the hardcore data analysis, again, only done from the perspective of the DOJ, and societal and mental health effects, that could cost the federal and state government a lot of money on the long term, are left out of account. On top of that, the BOP has declared that it does not know the specific costs of holding an inmate in the ADX Florence in a reaction to the FOIA request of Solitary Watch: ‘’These costs are included in the general per capita costs for the applicable facility. Since the prisons at Florence make up a Federal Correctional Complex, the operating costs are based on all complex operations, shared services and facility expenses at this site.’’76 As these crucial data is missing, or just simply not published, it remains difficult to come to an exact BCA of the supermax agenda.

The costs of closing down In March of 2012, the New York Times headlined that the state of Mississippi was rethinking the use of solitary confinement in their state prisons. This revision of the prison system had saved money, lives and sanity. In 2010, Mississippi closed down one of the most notorious departments of Mississippi’s State Prison, Unit 32, after years of litigation from prisoners and civil rights

74 Terry A. Kupers, ‘Beyond supermax administrative segregation”Mississippi’s experience rethinking prison classification and creating alternative mental health programs’, Criminal Justice and Behavior, Oct. 2009, Vol. 36, 1040. 75 Sarah Lawrence and Daniel P. Mears, ‘Benefit-cost analysis of supermax prisons: Critical steps and considerations’, The Urban Institute, January 2006: https://www.ncjrs.gov/pdffiles1/nij/grants/211972.pdf, 35. 76 ‘Fact Sheet: The High Cost of Solitary Confinement’’, Solitary Watch, 2011: http://solitarywatch.com/wp-content/uploads/2011/06/fact-sheet-the-high-cost-of-solitary- confinement.pdf.

35 groups, mainly the American Civil Liberties Union. In a litigation case, dating back in 2005, the ACLU represented by Jeffrey Presley took on the solitary confinement policy of the Mississippi Department of Correction, represented by Christopher Epps. Later on, during the 2012 Congressional Hearing on solitary confinement, he explained that after a few violent outbreaks, the facility administration decided to look at alternative forms of imprisonment. Prisoners who served their term in administrative segregation were transferred to other departments. This reclassification of prisoners over time saved the state department of corrections more than $5.6 million; overall, it would cost $102.27 a day to keep an inmate in solitary confinement against $43.72 a day when the inmate was held in a medium security facility.77 Yet, it seems that these fiscal advantages were not directly taken into account when they decided to rethink solitary confinement. When we look at the litigation cases, there are no paragraphs dedicated to the budget that would be saved when solitary confinement is banned. Instead, in these cases, the mental health argument dominates the debate. Therefore, without acknowledgement of the money saved from prohibiting the use of solitary confinement, cannot be used very easily as a counterargument to the proliferation of supermax prisons. Although the state of Mississippi showed that abolishing the supermaximum prison system would, on the long term, result in the saving of costs, prison reform always demands an extra part of the budget. A 2012 report of the Illinois Department of Corrections(IDC) outlines the economic impact of the closure of a correctional facility on the local economy and the correctional budget. This study revealed that the smaller the local community, the more difficult it is to find alternative employment. Therefore, the closure of a correctional facility in a relatively small community will have the biggest negative impact. The IDC has come to this conclusion by looking at direct and indirect impacts of facilitating a high security correctional center on the region; direct impacts could be the employment of staff inside the facility, indirect impacts refer to the income and output generated in supplier firms providing the goods and services to the facility. The direct ‘’jobs’’ generate the indirect ‘jobs’’, so if a facility were to be closed, this number of generated indirect jobs would be lost as well.78 Although this seems like a reasonable

77 June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG- 112shrg87630.pdf, 19. 78 ‘Impact of the Closiure of Selected Department of Corrections Facilities, 2012’, Illinois Department of Corrections, February 2012: http://cgfa.ilga.gov/upload/IDOCFacilityClosureEconomicImpactStudy.pdf.

36 analysis of the impact that correctional facilities can have on the local community, when looking at the closure of a facility it is too easy to state that all of these direct and indirect generated incomes disappear. These employees could be hired by other local businesses and the impact of a possible relocation of the prisoners is neglected in this analysis. Besides that, it remains troublesome to make a case for the ADX in Florence as the costs of a possible closure or degradation of this supermax facility are still not known.

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4. A constitutional matter: solitary confinement and American jurisdiction In the Hutto v. Finney case in 1978, the Supreme Court stated that isolation for a duration less than 30 days is constitutional; however, the use of solitary confinement in combination with bad living conditions do constitute cruel and unusual punishment and is, therefore, alien to the Eighth Amendment.79 The case of 1978 was one of the first successful litigation cases against American federal jurisdiction, but the discussion on the constitutionality of the use of solitary confinement is far from finished. Although numerous psychological researches have shown that the use of long term solitary confinement can damage the physical and mental well being of the inmate, it is still not to be found unconstitutional. This paved the way for a new group of scholars to join the debate on the use of prolonged or even permanent solitary confinement in America’s prisons, the legal scholars. Therefore, this last chapter will examine the debate that has been going on in Supreme Court since 1978 and the difficulties that American federal jurisdiction faces when it comes to the prohibition of the use of isolation cells. Although the 1978 case may come across as a little victory in the battle against solitary confinement, up until the present day it remains very difficult for a prisoner to litigate against their sentence. Previous cases have shown that on a state level as well as on a federal level it became more difficult to appeal a sentence after Congress had approved the Prison Litigation Reform Act of 1997. This act was introduced to reduce the number of litigation cases. In the period leading up to this act, many injunctions of the American prison system, that were a consequence of direct prisoner litigation, required some expensive policy actions. In other words, prisoners who disputed their confinement were too often found to be right by federal judges. As a consequence, sentences were suspended and it proved to be very damaging for the budget of the United States Justice Department. Besides the influence of the Prison Litigation Reform Act of 1997, there are other factors that influenced the debate on the legality of solitary confinement. Therefore, this chapter will be divided into three parts that respectively deal with the current status of legal restrictions on the use of solitary confinement, the influence of the international community and the difficulties the American legal system faces when we talk about legal prison reform.

79 Hutto v. Finney, 437 U.S. 678 (1978).

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Solitary confinement restrictions in current day law It would be too convenient to state that the American law has neglected the poignant case of prisoners in solitary confinement completely. As the Supreme Court case of 1978 has shown, the length of isolation confinement is considered dangerous and should therefore be prevented as much as possible. This renewed attention for, especially, the length of solitary confinement, was the beginning of numerous court cases that addressed solitary confinement and the legality of its use. The case of 1978 clearly stated that ‘’the length of confinement cannot be ignored’’80; this can be considered a somewhat passive statement, but this recognition of the damaging effects of prolonged solitary confinement is a first step towards legal reform. We can therefore consider this case as the one that established the minimum conditions that should be granted to prisoners in solitary. Just as a lot of previous cases, the Hutto v. Finney case also drew on the application of the Eighth Amendment on prison sentences. However, because this particular amendment is so disputed, mainly because of its vague definition, the interpretation of the Supreme Court of that particular amendment can be the decisive factor. When looking at America’s litigation history, one of the first cases that really challenged the Eighth Amendment and its interpretation back then was the Trop v. Dulles case of 1958. It was during this case that it became clear that ‘’no static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’’.81 Besides the Eighth Amendment, the concept of due process, a clause of the Fourteenth Amendment that should guarantee the right of prisoners to defend them, also found its way into the solitary confinement debate. The clause states that no state is allowed to ‘’deprive any person of life, liberty or property, without due process of law’’.82 The goal of this procedure is to guarantee that the prisoner is trialed in a fair way in order to protect them from arbitrary decisions of government.83 According to legal scholar Riveland, placement procedures should be an ‘’integral part of the agency’s classification process’’.84 It is therefore, the task of the BOP to keep assessing an inmate’s sentence during the whole period of his incarceration. The only

80 Hutto v. Finney, 437 U.S. 678 (1978). 81 Trop v. Dulles, 356 U.S. 86 (1958). 82 U.S. Const. amend. XIV, due process clause. 83 Wolff v. McDonnell, 418 U.S. (1974). 84 Chase Riveland, ‘Supermax Prisons: Overview and General Considerations’, National Institute of Corrections, January 1999: https://s3.amazonaws.com/static.nicic.gov/Library/014937.pdf, 15.

39 problem with this is that the classification criteria of prisoners are often vague and ambiguous. Concepts such as unusual punishment and dignity are hard to define and it is therefore difficult for prison officials as well as the court to come up with clear guidelines on how to use the due process right in court cases. Moreover, Riveland gives the BOP the chance to give their own meaning to this right. In that way, prison officials, again, have the monopoly on justice even though this power should be shared with the local and federal courts and should be assessed periodically by American political bodies. A due process refers to a meaningful opportunity for the prisoner to be heard. It should be part of a reviewing process in order to see whether or not the prisoner should be reclassified. During that hearing, the prisoner has a right to know the specific set of reasons that places them in solitary confinement. These ‘’statement of reasons’’ is not only there to make the prisoner aware of his sentence, it should also allow a prisoner to be reclassified once those reasons can be contradicted.85 Without this statement of reasons, the legality of a certain sentence, in this case solitary confinement is very questionable. However, a lot of the time, this ‘’meaningful hearing’’ is just simply perfunctory. The decision to incarcerate a prisoner in solitary confinement is, in federal cases, often predetermined. We are not talking about convicts that were placed in solitary confinement after they have demonstrated bad behavior. They were rather placed in this type of condition at the beginning of their incarceration. Therefore, even if the inmates were given the opportunity to a due process it makes it more difficult to review their imprisonment conditions. There should be a constant opportunity for the court to change the imprisonment conditions of its prisoners. According to the United States Court of Appeals for the Seventh Circuit, a federal court with appellate jurisdiction in the Midwest, prison officials cannot keep a prisoner in solitary confinement for life; it would be against both amendments to refuse a reconsideration of the facts that might justify a reclassification.86 The discussion around the right to a due process in solitary confinement cases is not new; already in the 1983 decision in Hewitt v. Helms the court decided that the 14th Amendment does not protect inmates concerning placement procedures.87 In other words, inmates in solitary

85 Vaidya Gullapalli, ‘Law Aimed at Silencing People Convicted of Crimes is Declared Unconstitutional’, Solitary Watch, May 1, 2015: http://solitarywatch.com/2015/05/01/pennsylvania-law-aimed-at-silencing- people-convicted-of-crimes-is-declared-unconstitutional/. 86 United States v. Johnson, 223 F.3d 665, 673 (7th Cir. 2000). 87 Hewitt v. Helms, 482 U.S. 755 (1987).

40 confinement were denied to appeal to their Fourteenth Amendment right. However, the state could create certain ‘’liberty interests’’ that would place rules on the unlimited powers of prison officials. However, by making this ‘’liberty interest’’ noncommittal, the court gave state politicians as well as prison officials the choice whether or not they would respect the due process clause in the Fourteenth Amendment. The 1983 case was followed by the Sandin v. Conner case in 1995, during which the court decided to more or less reverse the idea of a state- created liberty interest, because it would discourage prison official to set up clear guidelines when it comes to the classification process during a trial. Therefore, due process protections would be accessible when the classification would lead to an ‘’atypical and significant hardship on the inmate in relation to the ordinary incidents in prison life’’.88 The question remains on who decides if an inmate experiences significant hardship during his incarceration. To really fulfill the expectations of the due process clause, we have to take a closer look to the accessibility of the courts. Although an inmate does have the right to appeal to the Fourteenth Amendment when given an unfairly punishment, it remains difficult for him to appeal without any legal assistance. Historically, prisoners could make use of the so-called paging system in order to put there trouble on the courts’ agenda. Inmates could request limited amounts of legal material from a law library to prepare for a new appeal. When these were assessed and inmates would find a legal basis to appeal to their sentence they could request a trial. Yet, most of the inmates do not have a legal background and the widespread illiteracy makes it difficult for them to express their sufferings. In some states, it is even required to demonstrate actual injury before they can file for an access-to-courts claim. On top of that, the litigation restrictions, mainly caused by the PLRA made it even more troublesome to appeal against incarceration conditions. In the debate around the legality of solitary confinement, there is just one word that turns up in every debate: dignity. As I have showed in previous chapters, the dehumanization of prisoners can make it easier for politicians to implement a certain policy. However, the concept of dignity is often not addressed directly during these cases. According to philosopher Hugo Adam Bedau there is a reasonable but still questionable explanation for this. The Supreme Court acknowledges that ‘’dignity is admittedly an ethereal concept which can mean many things and

88 Sandin v. Conner, 515 U.S. at 472, (1995).

41 therefore suffers from an inherent vagueness at its core’’.89 To give this somewhat vague concept of dignity a more tangible framework, we can think in terms of basic needs. In order to be treated as a dignified human being, the basic needs of prisoners should be answered. These include not only the more obvious basic needs as food and shelter, but also social interaction and environmental stimulation. When we account these needs as just as important as more common basic needs (food, clothes, shelter), the law would be able protect prisoners from being dehumanized. In that light, the Eighth Amendment could always be addressed whenever there is a case in which the dignity and basic needs of a prisoner are not acknowledged. The concept of dignity we can also find in the rhetoric used during the Madrid v. Gomez case in 1995. One of the largest class-action suits, with the non-profit Prison Law Office representing more than 3.500 prisoners, this was one of the first cases in which the horrifying consequences of solitary confinement became more tangible. Thrilling accounts of inmates who had to endure horrible beatings as a punishment because they slowly developed different mental illnesses such as schizophrenia, made Federal District Court judge Thelton Henderson to decide that the conditions in California’s Prison Bay supermax prison showed ‘’systemic deficiencies in the medical and mental health care system’’. Furthermore, complete isolation for more than 23 hours a day ‘’may press the outer borders of what most humans can psychologically tolerate’’. Some prisoners who had a risk on developing mental illnesses were transferred. Yet, with clearly conceding the damaging consequences of solitary treatment, the court described the conditions as somewhat reasonable: ‘’The totality of the SHU conditions may be harsher than necessary to accommodate the needs of the institution with respect to these populations’’. Moreover, it highlighted the difficult task the prison administrators were burdened with controlling ‘’some of the most anti-social and violence-prone prisoners’’.90 During the second part of the trial, the court assessed whether or not the treatment in the SHU in Pelican Bay was to be considered unconstitutional and if it was, what part of this treatment should be considered unconstitutional. Eventually, the court came to the conclusion that the use of solitary was unconstitutional, but the prison officials had justified the use; the justifications for the harsh conditions adequately rationalized the use of solitary confinement.91

89 Hugo Adam Bedau, ‘’The Eighth Amendment, Human Dignity and the Death Penalty’’, The Constitution of Rights: Human Dignity and American Values, 1992: 145. 90 Madrid v. Gomez, 889, at 1259, (1995). 91 Ibid, at 1228.

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By approving the justifications by the prison officials as a penal philosophy it gave even more power to the prison administration. The Madrid v. Gomez case is therefore a great example of a loss of power of the courts and a strengthening of the position of the prison administration in the solitary confinement debate after 1995. It would take until the 2015 Davis v. Ayala case that extensive use of solitary confinement was again discussed in a Supreme Court hearing. Although this case was not specifically directed against the use of solitary confinement, Supreme Court justice Anthony Kennedy grasped this moment to talk about the injustices of solitary confinement. In a five-page concurrent opinion, Kennedy criticized the extensive use of solitary confinement in America’s prisons; Ayala, the subject of this case, had spent more than 25 years in isolation confinement. Kennedy concluded his statement by stating that ‘’in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates’’, yet, the courts and agencies should check if there are other less restrictive forms possible to incarcerate these inmates.92 Kennedy’s concurrence can be considered remarkable as it is one of the first times a Supreme Court justice poses a constitutional challenge to the BOP’s policy by himself. Being a moderate conservative, Kennedy often sides with the four more liberal judges when it comes to major cases on Planned Parenthood and Guantánamo Bay. Therefore, he could be the best shot at truly revoking solitary confinement, at least on death row. With the early death of Justice Antonin Scalia back in February 2016, the balance between liberals and conservatives has been shaken up a bit. This could mean that if a more liberal justice would be appointed in Scalia’s place, a Supreme Court case solely on solitary confinement could become a reality in the upcoming years.

Constitutional comparativism In his concurrent opinion in 2015, Kennedy also cited Amnesty International in stating that the use of solitary confinement on death row is a form of torture. Addressing an international organization as Amnesty International, Kennedy referenced directly to the international attention the United States has received for its mistreatments of prisoners. International law and committees have stated numerous times that the use of solitary confinement in American prisons can be classified as torture. Fortunately, the Supreme Court recognizes that an interpretation of

92 Davis v. Ayala, U.S. 576, No 13-1428, ‘Justice Anthony Kennedy concurring’, 2015: http://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf.

43 the amendments cannot be too static and, therefore, also looks at the international community’s to determine what is cruel and unusual. Already in 1992, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment stated that: ‘’Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible.’’93 If the United States does not acknowledge emotional or mental injury as a severe punishment, they are in violation with the United States international human rights obligations. Although the international community does acknowledge mental injury as torture, the United States seem to neglect this fact. During the Convention Against Torture, United States officials intended to rectify the international standards of torture by stating that: ‘’in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering’’. Furthermore, this form of damage can only derive from ‘’intentional infliction’’ or an imminent death threat.94 If the act does not comply with one of these requirements, then it should not be considered torture. Yet, it seems somewhat surprising that the American criminal justice system can go against these international standards. When looking further into the case of solitary confinement and international law, we see that there is no binding legislation on this case. In 2011, the U.N. special rapporteur stated that the use of isolation techniques should be banned in most cases.95 However, this does not mean that there is international legislation on the use of solitary confinement. As long as the use of solitary confinement is still in a grey area, it is not very likely for the United States to take action. However, the Supreme Court has addressed the role of the international community in solitary confinement cases multiple times. Especially in the Roper v. Simmons case of 2005 the international opinion-making was considered: “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . . The opinion of the world community, while not controlling our outcome, does provide

93 ‘2nd General Report on the CPT’s Actvities Covering the Period 1 January to 31 December 1991’, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1992: http://www.cpt.coe.int/en/annual/rep-02.htm. 94 ‘’Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’’, 138 Congress, October 27 1990: http://www2.ohchr.org/english/bodies/ ratification/9.htm.. 95 Juan Méndez, ‘Solitary confinement should be banned in most cases, UN expert says’, United Nations, October 18, 2011: http://www.un.org/apps/news/story.asp?NewsID=40097#.V2RXb7t97IX.

44 respected and significant confirmation for our own conclusions’’.96 This was one of the first Supreme Court cases that addressed the role of the international community directly. Yet, by stating that it would not have any impact on the outcome, it seems as if court wanted to reference the world community only because they were forced to. Still, it is very brave to place the Constitution, one of America’s political sanctuaries, in an international equipoise. This form of comparative constitutionalism can be the first step towards accepting international opinions into the American legal system, but it can also turn out to be very counterproductive. Many American scholars such as Professor of Law Paul W. Kahn see a distinctive American tradition when it comes to constitutional interpretation: ‘’While others are pursuing a transnational constitutional discourse, Americans are determined to locate their constitutional discourse within their own unique text and their own historical narrative’’. According to Kahn, a cultural approach to constitutional interpretation would do more justice to the complexity of the cases than a comparative constitutional study would do.97 Kahn’s view on the cultural aspects of a constitution indicates why the United States is not receptive for international reform; every Constitution should be considered exceptional and can, therefore, not directly be compared to others. The timing for this discussion about the role of international opinion on the American justice system is not arbitrary. At the end of 2003, military officials were criticized for abusing and torturing Iraqi prisoners at the Abu Ghraib prison. With the world watching, the United States could not just simply ignore the international opinions on torture. Therefore, this period marks a turning point in American legal history as international views were considered more often during court cases.

The decisive party in legal reform Yet, the question remains if a Supreme Court case would be the answer to implement reform from a top-down level in federal jurisdiction. Although I doubt that it will be a decisive factor, it would be an important step towards prison reform. As long as the power of policy implementation still lies with prison officials or the BOP, then they are the ones who can make a change. The courts have clearly indicated that confinement decisions are reserved for prison administrators. Justice Scalia stated that ‘’the Constitution does not mandate comfortable prisons

96 Roper v. Simmons, U.S. 543, (2005). 97 Paul W. Kahn, ‘Comparative Constitutionalism in a New Key’, Yale Law School Legal Scholarship Repository, January 1, 2004, 7.

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[…] the task of running prisons is entrusted in the first instance to the legislature and prison administration rather than a court.98 This idea coincides with the arguments of legal scholar Jules Lobel who proposes three ways to erupt the vicious cycle that keeps classifying the prisoners as too dangerous to incarcerate them in normal incarceration facilities. In the first place, correctional officials can gradually allow prisoners to have contact with other prisoners or people outside the prison. This would permit them to show that they can function in a less restrictive area as well.99 This could even be more beneficial than a due process as this not only include a hearing but an active showing of the willingness to demonstrate good conduct. As we all know, actions speak louder than words. Secondly, inmates that are locked up in solitary confinement should have more access to other environments through books, television and the possibility to build a relationship with family and friends. Yet, what he considers to be the most important action needed is the recognition that protracted solitary confinement can cause serious mental illness. Only when mental damage is considered to be a contravention to the Eighth Amendment, legal reform can be made possible. In this way, there are definitely opportunities for American judicial policymakers to step in and reform the use of solitary confinement from a legal point, but the fact remains that the United States often doesn’t recognize mental suffering as a concept. Emotional pain or suffering is often approached as a mere exaggeration of the prisoners’ testimony. This becomes clear when looking at the reason why Congress approved the PLRA: ‘’no federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody’’.100 So, even though the Supreme Court could be making progress in recognizing the emotional damage solitary confinement can cause, it are the prison officials and the political institutions that actually deny legal reform. Besides the neglect of emotional damage through the PLRA, prison officials often still believe that the emotional damage proposed by prisoners and their attorneys are a form of manipulation. Even when inmates have attempted to or succeeded in committing suicide, prison officials remain somewhat skeptical about their motives. In a 2006 New York Times article, the commander of the Guantánamo Bay detainee camp responded after the deaths of 3 prisoners by stating that ‘’they are smart, they are

98 Scheuer v. Rhodes, 416, (1974). 99 Jules Lobel, ‘Prolonged Solitary Confinement and the Constitution’, University of Pennsylvania, vol. 11 (1), 2009, 120. 100 Prison Litigation Reform Act, 1997, 42 U.S. code – suits by prisoners: https://www.law.cornell.edu/uscode/text/42/1997e.

46 creative, they are committed. They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.’’101 Again, considering the inmates almost as non-human but mere warfare tools makes it easier to deny them certain rights. All in all, there is some legislation that can help the American judicial apparatus keep a close eye on the use of solitary confinement in American prisons. It is not the case that the United States lacks jurisdiction on that part, yet, it is often just executed in a somewhat indifferent way. A major challenge lies in recognizing how many legal issues can arise when taking a closer look at individual cases. Throughout the years, the court cases have laid the groundwork for the process by which the relation between the Eighth Amendment and solitary confinement should be analyzed, but it does not provide us with a clear set of guidelines on how to use it to push through prison reform. Instead, the Supreme Court should speak more clearly on what kind of due process is required in placement decisions. In that way, prison officials could offer inmates basic procedural protection. By not respecting the due of process and by cooperating with Congress in order to make sure prisoners can litigate as least as possible, the BOP has systematically denied the constitutional rights of inmates. But they are not the only ones that should carry the guilt; over the past three decades, the Supreme Court has facilitated prison officials to steer clear of any responsibility with respect to the Constitution. Therefore, in order to bring about prison reform on a judicial base, the BOP has to turn in some of its power and newly imposed rules and laws should be discussed in the Supreme Court.

101 James Risen, ‘3 Prisoners committed suicide at Guantanamo’, The New York Times, June 11, 2006: http://www.nytimes.com/2006/06/11/us/11gitmo.html?sq=&_r=0.

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Conclusion

In order to reform the use of solitary confinement in the federal supermax prison today, we need to understand the reasons the United States still incarcerates inmates in solitary confinement. Prisons are part of a larger criminal justice system that is liable to penal ideologies and practices. It is therefore important to keep in mind that incarceration ideology is not a static concept but it is subject to change overtime. This can be due to political, economic or judicial ideals. The argument that the use of prolonged solitary confinement in the ADX Florence or, later on, in the USP Thomson should be banned solely based on human rights issues has not proven to be convincing enough for prison officials and the government to push for reform. The use of supermax prisons is part of a complex political, economic and judicial system. Therefore, in order to push through certain prison reform, these systems and benefits should be challenged. As you may have seen in the table of contents, I have highlighted some of the words in each chapter title. They represent the main arguments discussed in the federal supermax debate. Of course they embody the key problems of this discussion, but they also incorporate parts of the solution. These arguments do not stand apart; they are correlated to each other and only through cooperation between the different United States governmental bodies can prison reform succeed.

During my research, it became apparent that political and economic interests in this supermax debate are intertwined when looking at the involvement of Senator Dick Durbin. At first glance, it is hard to align his involvement in the first Congressional Hearing on the case of solitary confinement with his plea for a new federal supermax prison in his home state of Illinois because of the proposed rural community boost. Yet, his position as a member of Congress on a federal level and his position as a Senator on a state level influenced his stand in the debate. Serving two different interests, that of the state and that of the nation can make politicians switch their position. This also marks the special relation between politics on a state level and on a federal level. As a Senator of the state of Illinois he pleas for economic boost, as part of the federal government he pushes for reform. This division in interests remains a continuous factor in the struggle for prison reform. On top of that, states have specific legislative bodies that hampers clear legal guidelines on the case of supermax prisons even more. Yet, this does not mean that the federal government lacks some form of legislation on the use of solitary confinement. During the Congressional Hearings of 2012 and 2014 on the case of

48 solitary confinement it became clear that in the past few decades, the BOP did not follow strict policy lines when it came to the availability of regular psychological and physical examinations of prisoners. This same attitude towards living conditions and policy also appears when it comes to executive legislation. As seen in chapter 4, there is some federal regulation guiding the use of solitary confinement in American prisons; it is only the execution of this legislation that falls short. Even though the Supreme Court can provide some decisive legislation on the use of solitary confinement, political bodies as well as prison administrators fail to implement this. Congress has contributed to this centralization of the BOP’s power by appropriating the Prison Litigation Reform Act. Due to this act, it became more difficult for prisoners to put their incarceration conditions on the Supreme Court agenda. As the Supreme Court is often restricted to litigation cases, it would be even more difficult to discuss the solitary confinement conditions in court. In this way, American politicians have shaped legal solitary confinement policy more than the federal courts did. Yet, Congress only appears to react to these incarceration conditions when the media catches up. A lack of responsibility on the BOP’s behalf to really critically assess their own system is the pivotal problem in this debate. This lack of responsibility or accountability can be traced in their political, financial and judicial obligations. When looking at the BOP’s budget requests and additional spending it is fair to say that constant political pressure on Congressional members to release more budgets and an absence of a monetary tracking system makes it harder to evaluate the BOP’s accountability when they do fail. In other words, the BOP is not really held accountable when the money is spent irresponsibly or against governmental policy. The request for the Federal Prisons Accountability Act could be a good first step to map the BOP’s executive actions, but it could also easy be a tool for party politics. As this bill proposes that the new Director of the BOP has to be appointed by and with the consent of the Senate, it would mean that the majority in the Senate could elect a director that fits in their political strategy. Therefore, as long as the BOP is not held accountable for its actions and spending by an independent party, so that partisan politics will be avoided, it would be harder to push back the use of solitary confinement in the ADX in Florence. On a state level, this would be a different case as the budget is more divided on a local basis and the correctional institutions have less access to political pressure. Hence, the reduction of power of the prison administration is especially important when talking about federal supermax prisons.

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Besides the difficulties on an administrative level, the United States criminal justice system also faces problems with the dehumanization of convicts. It seems that American inmates are not solely classified on the seriousness of the crime they committed; rather it is their incarceration situation that determines the seriousness of the crime. Stigmatizing prisoners who spent their sentence in solitary confinement as the ‘worst of the worst’ makes it easier to treat them inhumanely. As we have seen, the difficulties lay on a political as well as a judicial level. The dehumanization of prisoners can be found in the rhetoric of politicians when talking about the suicide attempts in Guantánamo Bay as ‘’asymmetrical warfare’’ or when classifying them as ‘lost cases’, not willing to rehabilitate. Although this can be subscribed to tall talk to serve a particular political agenda, we can see this struggle with dehumanization also on a judicial level. Normally, the United States Constitution should serve as a provider of moral and legal guidelines when it comes to the rights of United States citizens. However, in the case of convicted criminals the framework of human dignity gets very blurry at sometimes. This form of dehumanization takes place in state prisons as well as federal prisons, but we see that the use of ‘’dehumanized’’ rhetoric happens more on a federal level. The ADX Florence houses national and international terrorists that are considered a threat to the whole country. With the possibility of a transfer of Guantánamo Bay prisoners to domestic soil this number of potential threats would increase - according to conservative politicians. Since 9/11 it is easier to perceive these types of prisoners as sources of evil rather than human beings. Therefore, this concept of the dehumanization of prisoners has a stronger influence on the future of federal supermax prisons rather than state prisons. In that way, this image of the inhuman inmate is one of the first things that should be challenged to make prison reform on a federal level possible. That is why I consider the acknowledgement of human dignity one of the decisive factors in the supermax debate. This concept should be constitutionalized so that any violation of human dignity can be tested through state or federal court. As this has to be implemented from a top- down perspective, the Supreme Court has a huge responsibility towards the state supermax prisons. It is only the Supreme Court and federal law that can push through prison reform in such a way. Although Mississippi served as a great example for other states, it was not a decisive factor to push back the use of solitary confinement in all of the United States. Right now the incarceration process in the ADX in Florence lacks human dignity as it is denying inmates to be reclassified and their mental suffering is not acknowledged. As the Supreme Court has not

50 recognized mental suffering as cruel and unusual punishment, it is hard to come up with strict regulations around the use of solitary confinement. As long as this use is legitimized in defiance of its negative impact on prisoners, it will continue to be used in United States supermax prisons. Nonetheless, constitutional changes can also be dependent on political involvement; a new set of Congressional Hearings solely on the case of inhumane treatment in America’s prisons and the acknowledgement of mental suffering among prisoners in solitary confinement will be a good first step. Throughout this research I have not sensed a particular unwillingness from the involved parties to critically assess the federal supermax prison; it is the complex system with all of its different parties and interests that make this case all the more challenging. As Executive Director of the Colorado Department of Corrections Rick Raemisch has stated during the Congressional Hearing of 2014, it should be a cooperative reform; prison officials, American politicians, enterprises and the local community should work together in finding a way to decrease the use of prolonged solitary confinement. However, we have seen that even though there is some pressure from the courts on the BOP concerning their use of solitary confinement, this does not always mean that prison officials pursue this. As Shalev stated: ‘’where courts do intervene, departments of corrections do not always comply.’’102

To conclude, there are a few parties that should really step up their game when it comes to reform. The BOP should be critically assessed on its expenditures and operations by an independent party; this could be a governmental health organization or a financial counsel. Moreover, the Supreme Court justices should do everything in their power to provide prison officials with clear guidelines on the constitutionality of solitary confinement. With the passing away of Justice Scalia and the availability of the more liberal oriented Merrick Garland, the coming years would be the time to address this issue on a legal level. Yet, Justice Kennedy was able to discuss the gravity of solitary confinement during his concurring because of the renewed attention for the Kalief Browder case. Therefore, I have reserved a special role for civil rights advocacy groups, especially Solitary Watch. Their mission to provide attorneys, legal advisors and policymakers with new sources on the use of solitary confinement makes the case for reform even more urgent. Besides their publishing of personal stories and interviews, they also request information via FOIA to get to the bottom of prison policy issues. Their work has triggered

102 Shalev, Controlling Risk Through Solitary Confinement, 224.

51 bigger media outlets such as The New York Times to publish investigative journalistic articles on the conditions in supermax prisons that in turn will trigger Congress to take action in the political arena. Although I did not address the case of racial profiling in solitary confinement directly, Michelle Alexander’s The New Jim Crow and civil rights groups such as the Black Lives Matter movement are also important participants in this debate as they focus on the relationship between racism and prison injustices. Their movement has gained national and international attention. In that way, a solid cooperation between different civil rights advocacy groups can put a new solitary confinement case on the judicial agenda. This will lead to a more reliable constitutional framework on solitary confinement that can help to critically assess the BOP’s operations. Only then we can guarantee the safety and well-being of the American prisoners without locking them up in solitary confinement.

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Appendix I: Overview of the political, economic and judicial arguments proposed in the federal supermax debate

Why the U.S. continues to use Arguments that challenge these solitary confinement in federal reasons supermax prisons

The ‘tough on crime’ ideal A federal supermax prison does not have the proposed deterrence effects

American politicians use the federal supermax prison in order to support their own political agenda

Guantánamo Bay prisoners need Guantánamo Bay prisoners can to be transferred (Obama wants be transferred to different less Political challenges to close down the prison before restrictive institutions; maybe the end of his term) even abroad

The BOP is not held responsible The BOP should not be enough for its actions and has reviewing its own system, there more or less a monopoly on should be an independent party prison policy for that

Congress only acts upon the case of solitary confinement when there is increased media attention

The dehumanization of prisoners by politicians

Rural community boost (job This local economic boost will be creation, operational costs will temporarily benefit local businesses)

Economic challenges The prison-industrial complex A federal supermax prison cannot (the supermax prison as a be profitable as there is no room profitable economic instrument) for prisoners’ productivity (no work/production)

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The economic impacts of closure There is no evidence that a are unknown premature closing down of a prison will have great effects on the unemployment

A federal supermax prison is a disaster for the BOP budget as it increases expensive security measures

A more liberal oriented replacement of Justice Scalia could make a court case solely on The different interpretations of the use of solitary confinement constitutionalism and the Eighth possible. One of the results could Amendment be a more thorough look at the constitutionalism of solitary confinement in the context of the Eighth Amendment.

Judicial challenges Prison Litigation Reform Act (approved by Congress) will decrease the number of times inmates can litigate against their sentence

Mental suffering is not The international community acknowledged as suffering strongly condemns the neglect of according to American law mental suffering in U.S. prisons

The restrictions on solitary The Supreme Court should have confinement are not reassessed the power to act more enough (the BOP is not held independent when requesting a responsible) court case or reassessing solitary confinement

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Bruscino v. Carlson, ‘’Memorandum and Order’’, July 24, 1984: http://www.clearinghouse.net/chDocs/public/PC-IL-0022-0001.pdf

Davis v. Ayala, U.S. 576 (2015)

Hewitt v. Helms, 482 U.S. 755 (1987)

Hutto v. Finney, 437 U.S. 678 (1978)

Madrid v. Gomez, 889, at 1259, (1995)

Roper v. Simmons, U.S. 543, (2005)

Sandin v. Conner, 515 U.S. at 472, (1995)

Scheuer v. Rhodes, 416, (1974)

Trop v. Dulles, 356 U.S. 86 (1958)

United States v. Johnson, 223 F.3d 665, 673 (7th Cir. 2000)

Wilkinson v Austin, 2005, No 04-495 (3 March 2005) (Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent)

Wolff v. McDonnell, 418 U.S. (1974)

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‘Durbin, Quin announce sale of Thomson Correctional Center to the Federal Government’, Senator Durbin website, October 2, 2012: http://www.durbin.senate.gov/newsroom/press- releases/durbin-quinn-announce-sale-of-thomson-correctional-center-to-the-federal-government

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‘Fact Sheet: The High Cost of Solitary Confinement’’, Solitary Watch, 2011: http://solitarywatch.com/wp-content/uploads/2011/06/fact-sheet-the-high-cost-of-solitary- confinement.pdf

‘Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States’, HRW and ACLU, October 10,2012: https://www.hrw.org/report/2012/10/10/growing-locked-down/youth-solitary-confinement-jails- and-prisons-across-united

‘Impact of the Closure of Selected Department of Corrections Facilities, 2012’, Report to the Illinois Department of Corrections, February 2009: http://cgfa.ilga.gov/upload/IDOCFacilityClosureEconomicImpactStudy.pdf

June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg87630.pdf

June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg87630.pdf

‘Letter by Hillary Clinton and her support for Thomson Prison’, December 15, 2009: https://www.whitehouse.gov/sites/default/files/091215-letter-governor-quinn.pdf

‘Letter from AG Eric Holder to Barbara A. Mikulski’, Office of the Attorney General, February 1, 2013: https://www.scribd.com/doc/126892917/DOJ-Letter-February-Sequester-Hearing

‘Letter Wallace H. Cheney to Jan Susler’ (Attorney People’s Office), December 31 1990

‘Letter to Wallace H. Cheney concerning the ADX Florence’, The People’s Office, January 8 1991: http://freedomarchives.org/Documents/Finder/DOC3_scans/3.correspondence.susler.to.cheney.en closure9.1.8.1991.pdf?_sm_au_=iVVWST15Ms0tPVrR

‘Press Conference Governor Quinn on the Thomson sale’, Youtube, October 2, 2012: https://www.youtube.com/watch?v=mFAnIH8-fyM#t=120

‘Press release by John Boehner on Thomson Prison’, Paul Ryan Speaker of the House website, October 2, 2012: http://www.speaker.gov/press-release/speaker-boehner-obama-administration-s- purchase-thomson-prison-backdoor-move-import

‘Press release: Obama Administration will not transfer prisoners from Guantánamo Bay to Thomson’, Senator Dick Durbin, April 4, 2011: http://www.durbin.senate.gov/newsroom/press- releases/durbin-obama-administration-will-not-transfer-prisoners-from-guantanamo-bay-to- thomson

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Prison Litigation Reform Act, 1997, 42 U.S. code – suits by prisoners: https://www.law.cornell.edu/uscode/text/42/1997

‘Questions for Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences, February 25, 2014: https://www.judiciary.senate.gov/imo/media/doc/022514QFRs-Raemisch.pdf

Paul, Rand, ‘’McConnell, Paul, Lee & Booker Sponsor Bill to Bring Accountability to Federal Prison’’, Press Release, January 21, 2016: https://www.paul.senate.gov/news/press/mcconnell- paul-lee-and-booker-sponsor-bill-to-bring-accountability-to-federal-prisons

‘Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, 138 Congress, October 27 1990: http://www2.ohchr.org/english/bodies/ ratification/9.htm

‘Response to report and recommendations of Breed and Ward report to the Judiciary Committee on Marion Federal Prison’, March 1985: http://freedomarchives.org/Documents/Finder/DOC3_scans/3.susler.cunningham.response.report. 3.1985.pdf

Senator Dick Durbin, ‘Thomson Prison Sale Press Conference’, Youtube, October 2, 2012: https://www.youtube.com/watch?v=dugQPZ3aFOk

‘Testimony of Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences, February 25, 2014: https://www.judiciary.senate.gov/imo/media/doc/02-25-14RaemischTestimony.pdf

‘Thomson Support List’, Illinois State Government, 2012: http://www.illinois.gov/idoc/Documents/Thomson_support_List.pdf

United States Government Accountability Office, ‘Bureau of Prisons: Management of New Prisons Activations can be improved’, Report to Congressional Requesters, August 2014: http://www.gao.gov/assets/670/665417.pdf

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