[dropcap]H[/dropcap]ow long should the government be allowed to imprison someone in extreme isolation?
Indefinitely, according to a new federal appeals court ruling.
The case, Thomas Silverstein. v. Federal Bureau of Prisons, raised the question of whether decades of solitary confinement within the already isolating conditions of prison constitutes cruel and unusual punishment – legal parlance for torture.
Silverstein, 62, is a convicted murderer imprisoned at ADX, the federal government’s supermax in Florence, Colo., which is most restrictive prison on the planet. He has the distinction of having been housed in solitary confinement longer than any inmate held by the government – 31 years. After the May 22 ruling, there’s no end in sight.
“Irrespective of the length of his confinement, Mr. Silverstein’s history with regard to both his violent conduct and leadership in the Aryan Brotherhood makes this a deeply atypical case and it is clear his segregated confinement is commensurate with ongoing prison security concerns,” reads the Court of Appeals ruling for the 10th Circuit in Denver.
Silverstein is serving three consecutive life sentences plus forty-five years incarceration for three murder convictions. In one of those cases, he fatally stabbed corrections officer Merle Clutts at the U.S. Penitentiary in Marion, Illinois. Clutts’ 1983 killing coincided with another murder of a guard by a prisoner that same day at Marion, which had replaced Alcatraz as the federal government’s highest security prison. Those murders highlighted a pattern of prison violence in the 1980s that prompted a national movement to build supermax prisons made up exclusively of solitary confinement cells for prisoners who, like Silverstein, have deemed to be the “worst of the worst.”
As stated in last week’s ruling, Silverstein’s case is “deeply atypical” not only because he killed a guard – a crime for which the prison system clamps down especially hard – but also because he’s a former leader of the white supremacy prison group. The Bureau of Prisons has deemed him to be a kind of Hannibal Lecter of the federal prison system, a man considered so dangerous that it built special, super-security cells isolating him far beyond the extremely isolated conditions of what the feds call “administrative segregation.”
Silverstein has lived in solitary confinement since Clutts’ 1983 murder. What that means is 23 hours a day alone in a cell about the size of two queen sized mattresses, plus an hour alone in an exercise cage. Human contact consists mainly of passing a tray of food or mail through a slot in his door to and from guards who are well aware that he killed one of their own. He has spent half his life in a kind of isolation and sensory deprivation that is arguably the most extreme on the planet, without the ability for even the most basic human contact such as shaking someone’s hand or sharing a meal.
“…Even now I am not hoping for much. I would like to be able to eat a
meal with someone else occasionally. I would like to have a visit with my
family that ends in being able to hug my daughter goodbye and shake my
son¹s hand. I know that I have sacrificed most of my rights by virtue of
my actions as a much younger man. But I think that these things are not
too much to hope for, even in my circumstances,” he once wrote in a legal declaration.
From much of 1983 to 2005, Silverstein was housed in windowless cells built especially for him that afforded him less human contact that any other prisoner in the federal system.
This is his description of one cell in a federal prison in Atlanta, where he was permitted to wear underwear but no other clothing:
“The cell was so small that I could stand in one place and touch both walls simultaneously. The ceiling was so low that I could reach up and touch the hot light fixture.” “I could lie down. I could sit on my bed. Or I could stand. When lying down I could easily touch both ends of the cell, one end with my head or the other end with my feet.”
“Shortly after I arrived the prison staff began construction of the side pocket cell, adding more bars and other security measures to the cell while I was within it. In order not to be burned by sparks and embers while they welded more iron bars across the cell, I had to lie on my bed and cover myself with a sheet. It is hard to describe the horror I experienced during this construction process. As they built new walls around me it felt like I was being buried alive. It was terrifying.”
Two years after being transferred to ADX in Colorado, Silverstein filed a civil rights suit in 2007 saying decades in extreme isolation was a violation of Eighth Amendment protections against cruel and unusual punishment.
It listed a litany of psychological problems that it said have been caused by solitary confinement. They include hallucinations, self-mutilations, panic, paranoia, hopelessness and suicidal thoughts. It claimed that his decades of social and environmental sensory deprivation caused him – and risked further – psychological harm, thereby infringing on his civil rights.
Silverstein wasn’t asking to be released. Rather, he wanted his “isolation [to be] lessened” by placing into a high security general population prison setting where he could interact with other prisoners.
Among his arguments for ending his isolation were:
– A 2002 report by the Bureau of Prisons psychology staff rating him as a low risk of violence.
– His record of having committed no infractions since 1988
– And the fact that he publicly apologized to Officer Clutts’s family
Lawyers for the U.S. Justice Department, which oversees the Bureau of Prisons, countered that life isn’t so bad for Silverstein.
As part of their legal strategy, they cited a six-year statute of limitations for suing the federal government. That, they argued, barred any legal claims for the years of solitary confinement he served before transferred to ADX. In other words, they argued, the court should ignore 22 whole years of his solitary confinement.
Justice Department officials urged the court only to consider the conditions Silverstein has lived in for the past several years. They emphasized the window in his cell at ADX through which he can look outside, a TV with sixty cable channels, access to televised educational courses, radio stations and art supplies. The feds argued that Silverstein’s exposure to prison guards doing daily rounds and department heads doing weekly rounds, plus his ability to make two phone calls a month and communicate with other prisoners by yelling cell to cell constituted enough meaningful human contact to negate his claim of cruel and unusual punishment.
A U.S. District Judge sided with the Justice Department, saying his request for relief could not apply to his years of prior confinement in other prisons because he was not likely to be subject to those conditions again.
Silverstein’s legal team — the student law clinic at the University of Denver Sturm College of Law – appealed the district court ruling last year. The crux of the appeal pivoted on the argument that the district court erred in not considering the entirely of what was then Silverstein’s 30-year stint in solitary confinement. His lawyers argued, it was legally wrong to ignore the first 22 years of confinement because of a statute of limitations.
The appeals court rejected those arguments in a 54-page decision released last week.
Laura Rovner, Silverstein’s lawyer and associate professor and clinical director at DU Law, declined comment on the case last week until she breaks the news to her client. Unless Silverstein appeals to the U.S. Supreme Court or the Justice Department reverses its insistence on housing him in isolation, he is likely to live indefinitely in solitary confinement.
The use of long-term solitary confinement has been condemned internationally. At a session of the United Nations Human Rights Council, the U.N.’s special rapporteur on torture called on all countries to base the use of prolonged isolation except as a last resort and for as short a time as possible. Juan Mendez called for increased safeguards from prolonged solitary confinement, and the universal prohibition of solitary confinement exceeding 15 days.
Well into its second term, the Obama administration has remained silent on the federal government’s practice of keeping prisoners in extreme isolation. Earlier this month, Attorney General Eric Holder broke that silence, condemning the use of isolation and solitary confinement for young people with disabilities at juvenile detention centers. Holder said that practice can be counterproductive and extremely harmful.
“Solitary Watch,” a site tracking solitary confinement nationally, noted that “by criticizing solitary only for one small (and) specific group, Holder’s statement more than implies that the use of isolation is all right for everyone else.”
“This conviction is borne out by other actions taken by the U.S. DOJ and the Obama administration more broadly, including its treatment of detainees both at Guantanamo and on American soil,” longtime watchdogs Jean Casella and James Ridgeway wrote Friday. “It was, after all, the White House and its friends in Congress who engineered the purchase of a prison in Illinois slated to house men in extreme isolation, on the order of the notorious ADX in Colorado.”
[“Outside Recreation Area” and drawing of hands between bars by Thomas Silverstein.]