On February 14 the American Civil Liberties Union asked the United Nations Human Rights Council to urge the United States to take measures “to end the egregious violations” of human rights in the solitary confinement of prisoners.
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There’s an irony in the negative reaction of many Americans to the mistreatment of “war on terror” prisoners at Guantánamo — and to the solitary confinement of alleged Wikileaks source Bradley Manning in a military brig. To little public outcry or even knowledge, tens of thousands of American citizens are being held in equivalent or worse conditions in their country’s super-maximum-security, solitary-confinement prisons, or in comparable units of traditional prisons. The irony is compounded: the Obama administration — somewhat unsteadily — plans to shut down the Guantánamo detention center and ship its inmates to one or more supermaxes in the U.S., as though this would be a substantive change. In the supermaxes inmates suffer weeks, months, years, or even decades of mind-destroying isolation that commonly drives them to self-injury and suicide attempts. They also endure official beatings known as “cell extractions.”
In 2004, state-run supermaxes in 44 states held about 25,000 people, according to Daniel Mears, a Florida State criminologist. Mears told me his number is conservative. The federal system has a big supermax in Colorado, ADX Florence, and 11,000 inmates in solitary in all its lockups, according to the Bureau of Prisons. And most sizable county and city jails have large solitary-confinement sections. Although the roughness in what prisoners call “the hole” varies from prison to prison, isolation is the defining punishment in this vast network of what critics have begun to call mass torture.
In a typical cell extraction, five hollering guards wearing helmets and body armor charge into the cell. The point man smashes a big shield into the prisoner. The others spray mace into his face, push him onto the bed, and twist his arms behind his back to handcuff him, connecting the cuffs by a chain to leg irons. Continuing to mace him, the guards carry him screaming to an observation room, where they bind him to a special chair. He remains there for hours. This is the supermax’s normal, zero-tolerance reaction to prisoner disobedience. Perhaps the inmate had protested bad food by covering his steel door’s tiny window with a piece of paper. The principle applied is total control. Even if the inmate has no history of violence, when he’s taken out of the cell he’s in handcuffs and leg irons, with a guard on either side.
But he doesn’t often leave the cell. In a standard supermax, the inmate spends 23 hours a day alone in a 7-by-14-foot space. Radios and televisions are usually forbidden. Cell lights are on night and day. When the cold food is shoved through the door slot, prisoners fear it’s contaminated by the feces, urine, and blood splattered on the cell-door and corridor surfaces by mentally ill or enraged inmates. The inmate gets a shower a few times a week, a brief telephone call every week or two, and occasional “no-contact” access to a visitor. When the weather is good, five days a week he might spend an hour a day alone in a small dog run outdoors.
When supermaxes were built across the country in the 1980s and 1990s, they were theoretically for “the worst of the worst,” the most violent prisoners. But inmates are put in them for possession of contraband such as marijuana, when they are accused by another inmate of being a gang member, for hesitating to follow a guard’s order, and even for protection from other inmates. Several prisoners are in the state supermax near my home in Maine because they got themselves tattooed. By many accounts mental illness is the most common denominator; mentally ill inmates have a hard time following prison rules. A Wisconsin study found that three-quarters of the prisoners in one solitary-confinement unit were mentally ill. In Maine, over half are classified as having a serious mental illness.
Is it torture?
Can supermax treatment legitimately be called torture? The most widely accepted legal definition is in the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty to which the U.S. is party — and therefore is U.S. law. According to the treaty, torture is treatment that causes “severe pain or suffering, whether physical or mental,” when it is inflicted by officials for purposes of punishment or coercion.
Severe pain and suffering as punishment are plainly the norm in supermaxes, and prison officials often use isolation to coerce inmates into ratting on each other or confessing to crimes committed in prison. Solitary confinement of American prisoners for extended periods has increasingly been described by U.N. agencies and nongovernmental human-rights organizations as torture or as cruel and degrading. And American judges have recognized solitary confinement of the mentally ill as equivalent to torture. A key case is the 1995 federal-court ruling in Madrid v. Gomez that forbade keeping mentally ill prisoners in the notorious Security Housing Unit of California’s Pelican Bay State Prison.
Solitary confinement is by far the worst torture in the supermax. Isolation “often results in severe exacerbation of a previously existing mental condition or in the appearance of a mental illness where none had been observed before,” Stuart Grassian, a Boston psychiatrist and authority on solitary confinement, wrote in a brief for the Madrid case. Grassian believes supermaxes produce a syndrome characterized by “agitation, self-destructive behavior, and overt psychotic disorganization.” He also notes memory lapses, “primitive aggressive fantasies,” paranoia, and hallucinations. Peter Scharff Smith of the Danish Institute for Human Rights, who has surveyed in depth the literature concerning solitary confinement, writes, “Research on effects of solitary confinement has produced a massive body of data documenting serious adverse health effects.” The effects may start within a few days, involve as many as three-quarters of supermax inmates, and often become permanent.
This American system of administrative punishment — except in extremely rare cases, prison staff, not judges, decide who goes into the hole — has no counterpart in scale or severity. There are solitary-confinement cells in other countries’ prisons and the odd, small supermax, such as the Vught prison in the Netherlands, but they are few. The British and other Europeans used solitary confinement starting in the mid-nineteenth century, taking as models the American penitentiaries that had invented mass isolation in the 1820s. But Europe largely gave it up later in the century because, rather than becoming penitent, prisoners went insane. A shocked Charles Dickens, after visiting a Pennsylvania prison in 1842, called solitary confinement “immeasurably worse than any torture of the body.” Americans gave it up, too, in the late 1800s, only to resurrect it a century later.
Solitary confinement was revived as a response to the country’s prisoner population explosion. (The U.S. incarceration rate now is nearly four times what it was in 1980, more than five times the world average, and the highest in the world.) Overcrowding tossed urban-state prisons into turmoil. In 1983 mayhem in the federal penitentiary in Marion, Illinois, resulted in a permanent lockdown and, effectively, the first supermax, which became a model. However, “No evidence exists that states undertook any rigorous assessment of need,” Mears, the Florida State criminologist, writes of supermax proliferation. George Keiser, a veteran prisons official in the Department of Justice’s National Institute of Corrections, told me supermaxes were “a fad.”
An expensive fad. American supermax buildings are so high-tech and the management of their prisoners is so labor intensive that the facilities “typically are two to three times more costly to build and operate than other types of prisons,” Mears writes. But, according to Kaiser, tax money poured readily into supermax construction because these prisons were “the animal of public-policy makers.” The beast was fed by politicians capitalizing on public fears of crime incited by increasing news-media sensationalism.
A study published in The Prison Journal in 2008 finds “no empirical evidence to support the notion that supermax prisons are effective” in decreasing prison violence. On the contrary, when enraged and mentally damaged inmates rejoin the general prison population or the outside world, as the vast majority do, the result, according to psychiatrist Terry Kupers, a prison expert, is “a new population of prisoners who, on account of lengthy stints in isolation units, are not well prepared to return to a social milieu.”
“Supermax prisons are expensive, ineffective, and they drive people mad,” concludes Sharon Shalev, of the London School of Economics, author of a recent prizewinning book, Supermax: Controlling Risk Through Solitary Confinement.
What can be done?
So what can be done? Legally, solitary confinement is not likely to be considered torture anytime soon in the U.S. According to law professor Jules Lobel, when the Senate ratified the Convention Against Torture, it qualified its approval so much that “the placement of even mentally ill prisoners in prolonged solitary confinement would not constitute torture even if the mental pain caused thereby drove the prisoner to commit suicide.” And despite the U.S. Constitution’s prohibition of “cruel and unusual punishment,” courts have refused to see supermax conditions per se as unconstitutional. Lawsuits on behalf of the mentally ill, however, have had some success. In New York a suit brought about the creation of a residential mental-health unit for prisoners, plus more time out of the cell for the mentally ill. Still, sixteen years after Madrid v. Gomez, court-ordered reform has been infrequent and its implementation contested.
Activists who see supermaxes as torture chambers are increasingly looking beyond legal action alone and are beginning to pressure legislatures and governors, via public-relations campaigns and lobbying, to reduce prolonged solitary confinement and other supermax mistreatment. A persistent grass-roots group, Tamms Year Ten, has extracted promises from the state of Illinois to improve conditions at the Tamms supermax at the state’s southern tip. The Vera Institute of Justice, a New-York-based think tank, has begun working with Illinois officials — and in Maryland — to decrease the number of prisoners in isolation. Vera is trying to apply lessons from Mississippi, where American Civil Liberties Union lawsuits forced the most significant U.S. supermax reform, shrinking the population of its infamous Parchman supermax from one thousand to 150. Mississippi expanded its mental-health, educational, and recreational programs for supermax inmates and, as they improved their behavior, moved them to the general prison population. In Maine, newspaper articles describing the brutality of supermax cell extractions (along with an on-line video showing one) resulted in a dramatic drop in their frequency, seemingly proving that they weren’t necessary.
In the current economic slump, many reformers have used dollars-and-cents arguments. Social scientists are increasingly producing evidence that investments in prisoner rehabilitation will lower recidivism and save taxpayers money in the long run; now, two-thirds of American ex-convicts return to prison within three years. And some reformers believe the public can be turned against supermaxes because of their expense to build and run. Supermaxes, however, grew through several recessions. The Colorado state budget has been under great strain, but the state just opened a 300-bed supermax.
Fundamentally, supermaxes weren’t built because of a utilitarian calculation about dollars and cents. “The object of torture is torture,” George Orwell wrote. Likewise, the widespread revulsion to torture is not utilitarian, but moral. In 2010 the National Religious Campaign Against Torture, which has been active in opposing abuses at Guantánamo, began describing supermax conditions as torture and specifically working to limit the use of solitary confinement. In the end, if enough people became aware of this mass torture, the moral argument could prevail.
Lance Tapley is an investigative writer for the Portland Phoenix in Maine. This article is adapted from his contribution to The United States and Torture: Interrogation, Incarceration, and Abuse, Marjorie Cohn, editor; New York University Press, 2011, hardcover, 342 pages; US$39.00; ISBN 978-0-8147-1732-5.