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The US Federal Supermaximum Prison Debate

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The US Federal Supermaximum Prison Debate 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 0 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 1 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. 2 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. 4 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.
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