The Anti-Supermax Battle Broadens

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Opponents of solitary confinement argue that the U.S. has its own equivalents of Guantánamo and Abu Ghraib

Portland, Maine—As new organizations join the battlefield, the nation’s anti-supermax movement is opening up new fronts in its fight to ban or restrict the use of solitary confinement.

In the past, reformers have largely depended on federal lawsuits, with scattered success, to challenge the alleged abuse of inmates in America’s vast network of solitary-confinement super-maximum-security prisons. They argued that prisoners confined to those facilities were subject to unconstitutionally cruel punishment, or were denied due process when they were placed in them.

But now reformers are asking state legislatures to outlaw or limit solitary confinement, declaring that it meets international definitions of torture. Some are questioning the ethics of supermax doctors and psychologists — and the professional organizations that do “peer reviews” of their work.

New to the fight are the four-year-old National Religious Campaign Against Torture (NRCAT) and 24-year-old Physicians for Human Rights (PHR). In recent years both have played major roles in denouncing the federal government for torturing prisoners at locations overseas.

NRCAT, an alliance of more than 280 religious groups across the country which cut its political teeth on the Guantánamo and Abu Ghraib controversies, announced a drive early this year to end prison solitary confinement in the United States. Citing studies that show periods of enforced isolation can aggravate and even create mental illness among inmates in supermax prisons, NRCAT says it wants to be consistent in opposing torture at home and abroad.

A New Alliance

Working with the American Civil Liberties Union (ACLU), which has a history of suing states on this issue, NRCAT is trying to get legislatures to require state corrections departments to rethink their dependence on solitary confinement. For years the ACLU has been part of a loose coalition — including Human Rights Watch and the American Friends Service Committee — attacking supermax conditions.

The ACLU’s and NRCAT’s first battleground was Maine, where their affiliates and other groups convinced the legislature on April 6 to order a study of solitary confinement.

“We have a ready constituency nationwide,” said Richard Killmer, NRCAT’s executive director, adding that domestic prisons illustrate “the same kind of facts of torture” exposed at Abu Ghraib and Guantánamo.

PHR, which has called for punishment of physicians and psychologists who helped the CIA overseas, is at an earlier stage of engagement — “determining how we can best use our unique voice” of health professionals, said Nathaniel Raymond, director of the group’s anti-torture efforts.

Raymond suggests that domestic prison health professionals may also be violating medical ethics — or condoning torture — by looking the other way while prisoners suffer prolonged solitary confinement. At detention centers abroad one of the practices criticized by human-rights groups as abusive was lengthy solitary confinement.

Echoing Killmer, Raymond said: “The challenge is to make sure we’re consistent in facing and ending torture wherever it is used.”

Members of the alliance believe the time is right to step up their campaign — not only because Abu Ghraib and Guantánamo increased sensitivity to the issue of torture, but also because supermaxes, which often go by the name of “special housing” or “segregation,” have become such a big element of the nation’s penal system.

The state-run supermaxes contain at least 25,000 prisoners, according to Florida State researcher Daniel Mears. The Bureau of Prisons told CNN the federal system has 11,000 prisoners in “special housing units.” Many thousands more are in solitary confinement in county jails.

24-Hour Isolation

Supermax inmates are typically kept 24 hours a day in tiny cells, except for an hour of recreation alone in a cage several times a week. Guards deliver meals through a slot in a solid door. In many supermaxes, cell lights are on day and night and radios and TVs aren’t permitted. Often, prisoners face these conditions for months and even years.

In theory, supermaxes were established as prisons within prisons or as separate prisons to house “the worst of the worst,” the most violent prisoners. But their unforgiving conditions have become standard punishment for inmates who break prison rules, and prisoners say solitary confinement often is used to force inmates to “rat” on each other.

Prisoners with mental illness are often relegated to them because they have a hard time following the rules. Some studies show the prevalence of mental illness among supermax inmates to be 50 percent or higher.

But there has been “scant professional or academic attention to the unique ethics-related quandary of physicians and other health-care professionals when prisons isolate inmates with mental illness,” writes one of the country’s most prominent correctional psychiatrists, Jeffrey Metzner, in a recent article, “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics,” published in The Journal of the American Academy of Psychiatry and the Law.

This is a special problem, he adds, when “isolation can be as clinically distressing as physical torture.”

Metzner’s article, however, is an indication that attention is being paid to the issue.  He and his co-author, Human Rights Watch lawyer Jaime Fellner, recommend that doctors within the prison system advocate with prison officials “to end the abuse” — and, if necessary, go public.

In an interview, Metzner, who teaches at the University of Colorado’s medical school, suggested that health professionals outside the prisons become advocates as well. He hopes his article will spur organizations of medical workers to become more aggressive on the issue, and he intends to press the American Psychiatric Association on it.

An obstacle to reform, he said, is the ignorance on the part of most psychiatrists of both prison conditions and relevant international law.

There is increasing consensus among United Nations agencies and international human-rights organizations that the definition of torture contained in the U.S.-signed U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ? mistreatment by officials that inflicts “severe pain or suffering, whether physical or mental” for punishment or coercion ? applies to extended solitary.

In 2006 the UN Committee Against Torture expressed its concern about the “prolonged isolation periods” in American supermaxes and “the effect such treatment has on [inmates’] mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”

In 2008 the U.N. special rapporteur on torture, Manfred Nowak, recommended that solitary confinement “should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort” — all conditions violated by U.S. supermaxes.

According to David Fathi, head of the ACLU’s prison project, the prolonged isolation imposed in supermax prisons “may well violate [U.S.] treaty obligations.” PHR’s Raymond said flatly: “Solitary confinement is definitely recognized internationally as torture.”

To clarify doctors’ responsibilities, Raymond argues, state licensing boards and organizations of health professionals must draw “bright lines” defining ethical conduct in American prison settings. And, he said, there needs to be “a mechanism for enforcement” for those who cross the line.

Whether at Guantánamo or domestically, he added, prison medical professionals face a problem in their “dual loyalty” to their employer on the one hand, and to their patients and professional ethics on the other.

In an interview, Metzner’s coauthor Fellner was blunter. Prison doctors and their colleagues are “in a terrible position,” she said. “They risk losing their job” if they speak out against solitary confinement for mentally ill prisoners. But, she added, they may be obligated to resign.

The Debate in Maine

The recent debate over solitary confinement in Maine showed that groups representing health professionals are divided on the question of the complicity of prison doctors and their associates in supermax abuse.

The state’s organizations of psychiatrists and psychologists forcefully spoke out against solitary confinement. They were part of a broad coalition of civil-liberties, religious, human-rights, and prison-reform groups that campaigned for a bill that would have limited prison solitary confinement to 45 days and banned it altogether for the seriously mentally ill. The coalition included the Maine Civil Liberties Union and the Maine Council of Churches, respectively the local ACLU and NRCAT affiliates.

The bill, Legislative Document 1611, targeted the state supermax, the 132-cell Special Management Unit of the maximum-security Maine State Prison in Warren. In the unit, more than half the inmates are classified as seriously mentally ill.

Janis Petzel, president of the Maine Association of Psychiatric Physicians, told legislators at the bill’s public hearing that “by international definition” solitary confinement “is a form of torture.” The Maine Psychological Association, representing psychologists, was similarly outspoken.

Yet at the hearing, the Maine Medical Association (MMA), the American Medical Association (AMA) affiliate, didn’t take a stand. Its executive vice-president, Gordon Smith, told legislators that because the care prison psychiatrists provide to inmates has been in the past “peer reviewed” by teams of MMA psychiatrists, the group had to remain neutral. In essence, MMA reviewers sign off on the quality of care.

In an interview, Smith said his organization is “not contracted” by the Maine Department of Corrections to look at the effects of isolation. While he had “no doubt” solitary confinement caused mental illness, he didn’t recall it ever being mentioned in an MMA review of how a prisoner’s mental illness was handled.

Stuart Grassian, a Massachusetts psychiatrist and a national expert on the effects of solitary confinement, sees this as absurd. “You just can’t be a doctor and not look at living conditions,” he said. Grassian had testified in favor of LD 1611.

The Department of Corrections didn’t deny that solitary confinement is mentally destructive. Instead, its officials claimed, because supermax inmates are taken from their cells to have several showers a week and had other minimal human contact, they aren’t in solitary confinement. The department’s clinical director, Joseph Fitzpatrick, a psychologist, said that if solitary confinement did take place it might be destructive to prisoners.

The department lobbied hard against the bill on the grounds that the safety of guards and other prisoners would be jeopardized if dangerous inmates couldn’t be put into solitary. This argument lost strength when the department was forced to reveal that some prisoners were in the supermax for rule violations like getting themselves tattooed.

LD 1611’s supporters had not expected victory the first time around, and they didn’t get it. The bill had been backed by the Democratic majority’s leaders, but rank-and-file legislators became worried about the cost of building a psychiatric hospital for prisoners at a time of economic recession. Corrections officials had insisted this would be necessary if the bill passed.

The legislature defeated the bill on April 6 but ordered a study of solitary confinement to be performed jointly by the department and the independent state Board of Corrections.

The LD 1611 campaigners had regarded this year’s legislative session as a chance to educate legislators and the public. Buoyed by evidence of growing public support — such as favorable newspaper editorials — they declared a “moral victory,” vowed to monitor the study, and said they would return with a similar bill next year.

There may be efforts, too, within the state’s medical community to educate doctors on prison conditions. Petzel, the psychiatrists’ group president, said, “Twenty years ahead, I don’t want to look back and say we were like the Nazi doctors.”

Going National

Meanwhile, NRCAT and the ACLU have begun looking at other states in which to raise the issue. Illinois, which has already experienced a controversy over treatment of prisoners in the supermax at Tamms, is a possibility.

“We learned a lot from the effort in Maine,” NRCAT’s Killmer said.

Reformers may face an uphill challenge, however, in convincing national organizations representing health professionals to become more aggressive on the supermax-abuse issue. The AMA has a policy prohibiting physicians from even being present “when torture is used or threatened,” but in response to a request for comment on whether supermax treatment constitutes torture, an AMA spokesman said, “We just don’t have an expert available to speak on this issue.”

Although the Maine psychiatrists’ group took an unambiguous stand against locking up mentally ill people in solitary confinement, calling it torture, the American Psychiatric Association deflected requests for comments to a member, Roberta Stellman, who said she couldn’t speak for the organization.

Stellman, a New Mexico psychiatrist with experience working in prisons, acknowledged that “supermax environments can be awful” for the mentally ill, but added that prison psychiatrists “find themselves in a difficult setting.” She said she’d have to “think about” whether isolation of the mentally ill constitutes torture.

The National Commission on Correctional Health Care also is cautious. Its president, Edward Harrison, said the commission, which accredits health-care facilities in about 500 of the nation’s 1,800 prisons and performs peer or “chart” reviews in about 200 prison health-care facilities, doesn’t have a position on supermaxes.

Like the MMA, its reviewers don’t look at solitary confinement as a “contributing factor” to a prisoner’s health status, according to Harrison. Still, he noted, his group is “aware of the potentially damaging effects of isolation.”

A Stone Wall?

Correctional officials, of course, take strong exception to the word “torture” to describe supermax conditions. In an interview, Maine State Prison warden Patricia Barnhart said it discouraged cooperation on the issue: “Nobody talked to us and suddenly we were being called torturers.”

Likewise, Alfred Blumstein, a professor at Carnegie Mellon and one of the country’s foremost criminologists, said he thought the use of the word could lead supermax critics into “a stone wall” in bringing about reform.

Another criminologist, Mittie Southerland, executive director of the Academy of Criminal Justice Sciences, said “‘torture’ is a pretty strong word for what we consider normal solitary confinement” — which is necessary sometimes, she said, to protect prisoners from themselves and others.

She thought the supermax controversy might in the end be resolved by a change in “some of the practices” in these prisons: “A lot of prisoners will tell you they’d like to be in a single cell. They feel safer. But being in it 24 hours a day is another matter.”

Many supermax critics, however, recognize the nuances of solitary confinement.

“We don’t say solitary confinement is a problem per se,” Human Rights Watch lawyer Fellner emphasized. “There’s a need to look at conditions, how prolonged is it, and the reasons people are there. A week is different than five years.”

She also distinguished between torture and treatment that is “degrading, inhumane.” But “mentally ill people should not be in solitary,” she added.

Blumstein said the intent of prison officials toward supermax inmates should be kept in mind. “My sense is they don’t have an intent to torture. They have an intent to control. But what are the side effects?” he mused. “Are they sufficiently deleterious to fall into the classification of torture? They might have similar consequences to torture.”

Adding support to the argument that prison officials don’t intend to torture inmates was their insistence in the Maine debate that they don’t have solitary confinement. They tended to define solitary confinement as something approaching a medieval dungeon.

Similarly, “We do not operate supermaxes,” said Erik Kriss, spokesman for the New York State Department of Correctional Services, in an email — because “no one is in solitary since all have at least one hour out of cell every day,” and books and radios are available. And in New York’s “disciplinary prisons,” Kriss added, many inmates are double-celled.

The Sledgehammer Option

New York’s treatment of many of those viewed as problem prisoners, however, is different from how they’re dealt with in many states, as a result of the settlement of a lawsuit against the state brought by Albany-based Disability Advocates, Inc., over the conditions in which mentally ill people were incarcerated.

The state’s prison system was forced to create a 100-bed Residential Mental Health Unit, with a 60-bed unit to open next year. Guards have received more training in how to deal with mentally ill inmates, and these inmates have gotten more out-of-cell time and extra psychiatric treatment. A transformed disciplinary process has resulted in less solitary for mentally ill inmates who break rules.

Cliff Zucker, executive director of Disability Advocates, said the state is “making very good progress” in implementing the settlement.

But while bragging that “New York is on the cutting edge of the treatment of inmates with mental illness,” Kriss, the spokesman for the state’s 57,000-inmate system, pointed out, “What we’re doing is very expensive.”

Because of the expense of enhanced services for prisoners, and because legislatures tend to put such services last on their funding list, some people pondering supermax reform still see lawsuits as probably necessary. The “paradigm shift” may not occur without “the sledgehammer” of litigation — in the words of Stellman, the New Mexico psychiatrist — to remedy alleged supermax abuse.

So,  in addition to pushing doctors and psychiatrists to examine their behavior and pushing legislatures to act, supermax reformers always have the option of lawsuits, relying on court decisions that acknowledge solitary confinement is abusive to the mentally ill. Though these legal fights can bring substantial results, they are lengthy, expensive, and generally only bring relief to prisoners already mentally ill.

In any case, “a lot of things seem to be happening at once,” said Richard Kilmer of NRCAT, of this newly energized human-rights struggle. “We’re optimistic.”

Photo by Rennett Stowe via Flickr.

This piece, which draws in part on reporting done for The Portland Phoenix in Maine, is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for its generous support of this project. (Disclosure: Lance Tapley has spoken at National Religious Campaign Against Torture meetings.)

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