Within two days of his 2009 arrival at the Federal Bureau of Prisons’ “Special Management Unit” at the United States Penitentiary in Lewisburg, PA, William Thrower was beaten and stomped into unconsciousness by his gang member cellmate, with whom he was assigned to share a tiny, ancient cell, 24 hours a day. After a month in a coma, Thrower now suffers from “severe cognitive impairment,” which, according to a government neurologist requires his participation in basic functioning therapy. Nonetheless, Thrower was returned to an SMU program. His lawsuit was later dismissed because his allegations did not constitute an “atypical” hardship for a prisoner.
Thrower’s experience is not unique; the federal district courts are rife with similar lawsuits by prisoners confined in such programs, alleging inhumane conditions, murders, “gladiator” fights arranged by guards, and other atrocities generally attributed to societies less enlightened than ours. Yet the federal government’s use of “control units” like SMU has expanded exponentially in the last decade, as have the states. And while many correctional industry experts insist that such programs are necessary, one might ask at what cost to our national ideals of humane punishment and dignity for all members of our society do these programs exist.
It is well known that the United States incarcerates its citizens at a rate far higher than any other Western nation. More than two million men and women are detained in our prisons and jails at any one time, and we admit more than 1.3 million to such facilities each year.*1 It is perhaps not surprising that government officials and private prison industry corporations have in recent years looked for creative ways to store these men and women in a more manageable and cost-effective manner.
One way to achieve these goals is, of course, to simply lock prisoners in a cell, 24 hours a day. While the courts have generally mandated that it is unconstitutional to do so, they have allowed prison officials to subject prisoners to such treatment provided they are given an hour or so in an outdoor cage a few times a week. In 2005, the last year such figures were compiled, over 80,000 men and women were confined in such conditions.*2
However, these “Special Housing Units,” as they are often called, create great psychological distress for most prisoners, so much so that the medical community has compiled a large body of literature on “SHU Syndrome,” a diagnosable pattern of delusional, dissociation and schizophrenic disorders.*3 In the past, most prison administrators reserved this type of confinement only for the worst of the worst, those prisoners who were simply too dangerous to be housed in general population even at maximum-security facilities. New “Supermax” prisons started to appear in the 1980s and ’90s, such as the infamous Pelican Bay facility in California, and “ADX,” the federal government’s Supermax prison in Florence, Colorado, home to international terrorists and others like the Unabomber, Ted Kaczynski. These facilities have been widely criticized as inhumane in many circles, including international treaty discussions between the United States and other nations.*4
Nonetheless, in recent years the Federal Bureau of Prisons and many state correctional agencies have greatly expanded the use of these “lockdown” prisons. In 2008, the BOP issued a new Program Statement on “Special Management Units,”*5 facilities that apparently don’t qualify as “control units” like its ADX facility, but, at least facially, appear to impose the same hardships on the prisoners assigned there. Thereafter, it converted several existing prisons into SMU facilities and quickly filled them. To date, there are more than half a dozen such facilities within the BOP, housing thousands of prisoners who do not fit the traditional profile of the dangerous convicts housed in control units, but, nonetheless, appear to be subjected to the same onerous conditions.
According to official BOP policy, designation to an SMU facility is “non-punitive.” Placement in these lockdown facilities is for those inmates who require “greater management of their interaction,” to ensure the safety and security of BOP facilities and “to protect the public.”*6 Whereas placement in such prisons traditionally depended upon a demonstration of repetitive violent or disruptive behavior, risk of escape, or criminal sophistication, the new SMU facilities set the bar far lower. Mundane disciplinary infractions such as drinking or using drugs, refusing to provide urine samples, or possessing a weapon can earn even a low-grade offender a two-year stay in an SMU facility. In fact, one need not even commit an affirmative act of misconduct to be shipped to SMU; to be identified as a member of a “disruptive group” is enough.
Conditions in such facilities are by any measure oppressive. As mentioned above, the Lewisburg SMU has been the subject of numerous lawsuits, as have conditions in many other facilities, where prisoners allege cruel and unusual punishment claims. Routinely, such prisoners are subject to indefinite 24-hour lockdowns; restrictive exercise opportunities, usually in a “dog run” style cage; reduced or non-existent access to adequate medical care and hygiene items; and reduced ability to communicate with the outside world. Access to legal materials is routinely denied, and in some cases, prisoners allege denial of even a pencil and paper to write a letter.
Perhaps more grave are the complaints of violence and mistreatment. Because SMU programs like the BOP’s do in fact house gang members and other dangerous prisoners, the wider net cast by the expansion of these programs sometimes causes less appropriate inmates to be placed with the harder types, with predictable results. Inmates have alleged that BOP officials have even placed them in cells with known enemies, resulting in serious injuries and life-threatening attacks.*7
Numerous complaints like William Thrower’s involving other such facilities also clog court dockets. In a Georgia case, a prisoner sued over his placement in an SMU program, alleging that his one-hour outdoor recreation in a nine-by-thirteen foot “dog run” and 23-hour lockdown was cruel and unusual punishment, especially since he was given “no access to books, newspapers, magazines or other forms of media.”*8 Another federal prisoner alleges he was saddled with false charges and placed in the Talladega SMU program as retaliation for testifying against a BOP employee who had assaulted him. In later court proceedings against the same prisoner — who was charged with throwing feces on a guard — the warden at Talladega stated that “assaultive behavior at the SMU was a problem,” and that there was “some apparent disparity in the treatment of certain inmate actions” at the SMU, with the guard’s assault on the prisoner a “particularly egregious incident.”*9
Another prisoner confined in the Lewisburg SMU sued the government to allege that SMU officers forced him inside a cell with a hostile inmate for a “staged gladiator-style fight.” His suit was dismissed, though, because the same officer had written a disciplinary report charging the prisoner with fighting, which negated court review; prisoners are not permitted to bring civil rights actions relating to a disciplinary proceeding unless they first overturn the disciplinary finding at issue.*10
These incidents, whether deemed true or false in the end, demonstrate the need for close scrutiny of rapid expansion of the use of oppressive facilities. While constitutionally minimum treatment has been permitted when dealing with the most dangerous prisoners in our correctional systems, this fact should not be viewed as permission to apply such treatment to less dangerous prisoners who simply present “management” problems for prison administrators.
While perhaps unpleasant for the average citizen to consider, the expanded use of these oppressive — and sometimes brutal or even fatal — facilities should be viewed as troubling, particularly in a nation where we trumpet freedom and cheer on oppressed people in the Middle East and elsewhere. Shouldn’t our society’s treatment of its prisoners be evolving toward the same goals, and not sliding backward into a gulag-like system where the treatment of millions of men and women appears to worsen every year? It is a question worthy of address.
Indeed, the expansion of second-tier lockdown programs in U.S. prisons diminish all of us. Whereas the world shook its head in dismay when advised of the conditions at the Guantanamo Bay prison complex, the same harsh confinement policies are imposed upon tens of thousands of our own citizens, year in and year out. Such a situation requires careful consideration in this twenty-first century world we live in.
*1-Department of Justice, Bureau of Justice Statistics, T. Minton, Jail Inmates at Midyear 2010.
*2-Department of Justice, Bureau of Justice Statistics, T. Minton, Jail Inmates at Midyear 2010.
*3-Haney, Mental Health Issues in Long Term Solitary Confinement and “Supermax” Confinement, 44 Crime & Delinq. 124, 130-141 (2003).
*4-Palma-Salazar v. Davis, 2012 U.S. App. LEXIS 9081 (discussing U.S.-Mex. Extradition Treaty, 31 U.S.T. 5059.).
*5-Program Statement 5217.
*6-Program Statement 5217.
*7-Deer-Mitchell v. Lappin, 2012 U.S. Dist. LEXIS 30764 (M.D.Pa. 2012).
*8-Turner v. Upton, 2012 U.S. LEXIS 132157 (D.Ga. 2012).
*9- U.S. v. Brown, 2012 U.S. Dist. LEXIS 73814 (N.D.Ala. 2012).
*10-Carolina v. Bledsoe, 2012 U.S. Dist. LEXIS 134874 (M.D.Pa. 2012).