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                                                                                                            February 21, 2014

Senate Judiciary Committee

Subcommittee on the Constitution, Civil Rights and Human Rights

Attention:  Stephanie Trifone; Owen Reilly

stephanie_trifone@judiciary-dem.senate.govowen_reilly@judiciary-dem.senate.gov

Re:  Subcommittee Hearings on Solitary Confinement

Dear Members of the Subcommittee:

The National Coalition To Protect Civil Freedoms, (NCPCF), is a coalition of 18 Civil Rights, Peace, and Muslim Organizations focused on ending Preemptive Prosecution, Profiling and Prisoner Abuse including solitary confinement.  Information about NCPCF and our member organizations can be found on our website at www.CivilFreedoms.Org.  We wish to address the Subcommittee with respect to its hearings on the abuse of solitary confinement.[1]

NCPCF is Generally Opposed to All Forms of Prolonged Solitary Confinement

Two reasons commonly cited by the Bureau of Prisons (BOP) for imposing solitary confinement are “prison security” and “disciplinary punishment”.  In practice, the courts give wide latitude to prison authorities to provide for their own security and prisoner punishment, and in the past have generally not interfered with decisions to impose solitary confinement on these bases.[2]   As a result, the rationale to impose solitary confinement is often contrived.  Before trial, an inmate can be placed in solitary confinement for protective custody, and then have SAMs added, supposedly for prison security reasons, then be placed in the SHU for disciplinary reasons, and then after conviction he may be placed in the CMU or the Supermax supposedly for security reasons.   In practice, solitary confinement is often imposed arbitrarily or for improper reasons such as to break a defendant down to prevent his testimony at trial, or to interfere in defense preparation, or to prevent legitimate communication, or to force the defendant’s cooperation in other cases.

It has been well established that prolonged solitary confinement is detrimental to mental health, and can cause permanent mental health damage.  It is considered a form of torture.  For this reason the Geneva Conventions on treatment of prisoners of war prohibit solitary confinement for more than 15 days.[3]  As a form of torture it is prohibited by many treaties and laws.

Notwithstanding the clear illegality of the practice, the last decade has seen torture and solitary confinement gain acceptance in military, penal and law enforcement practices, both in the US and through secret renditions abroad.  Prolonged solitary confinement is now probably the most widely practice method of torture in the US.  Numerous studies and the testimony of those who have experienced prolonged solitary confinement establish how powerful a form of torture it is to experience the intense pain, disorientation, confused thinking, loss of speech, paranoia, and induced insanity that accompanies prolonged solitary confinement.  [4]  As Psychologist Craig Haney of the University of California-Santa Cruz, an expert on long-term solitary confinement has stated:

[Solitary confinement] is itself a painful and potentially harmful condition of confinement…[I]t has historically been a part of torture protocols.  It was well documented in South Africa.  It’s been used to torture prisoners of war… it is a very painful experience….It’s certainly profoundly damaging if people lose hold of their own sanity. For some people their sense of themselves changes so profoundly and so fundamentally that they are unable to regain it. [5]

The use of torture and solitary confinement does enormous damage to the United States of America.   It destroys our moral authority, undermines due process and the rule of law, infects our legal system with coerced and false statements and pleas of guilty, and impairs our relationship with other countries and cultures that abhor torture, and question how they can cooperate with such a system without themselves becoming complicit.

Torture is so clearly illegal, (notwithstanding John Yoo’s best efforts to opine otherwise), that the US government has made elaborate efforts to conceal its illegal torture activities, establishing hidden “black” sites, and secret illegal rendition agreements with other countries.  Transparency and accountability have been lost.  With no clear purpose or policy in place, the treatment of inmates has been left to whatever sadistic or vengeful motives may inhabit the authorities in charge.   NCPCF opposes all forms of prolonged solitary confinement not only because it is torture, but because it is bad prison policy.  It damages the prisoner’s mental health, and fails to prepare them for eventual release.  Why would the US deliberately damage prisoner’s mental health only to release them back into society?  It makes no sense.

With so many reasons to reject torture and solitary confinement why is the practice increasing?  There are general reasons for this, including the increased use of private prisons, the warehousing of prisoners, and the abandonment of attempts to “correct” or “reform” prisoner’s behavior.  However, one reason seems to be the increased reliance by American law enforcement officers on coerced statements and cooperation from inmates to obtain information and convictions.  Solitary confinement is thought to “soften” inmates up and make them more susceptible to giving information.  As with any form of torture, solitary confinement may become so painful that inmates will agree to cooperate, but there is no guarantee that this cooperation will provide truthful information.  Solitary confinement induces mental confusion, disorientation, and inability to think clearly.  Interrogators believe that it can give them an advantage in planting ideas in an inmate’s head, and extracting information that law enforcement officers want to hear.

As David Hicks stated about his experience with solitary confinement:

Talking becomes difficult, so when conversations do take place you cannot form words or think…[C]oherent sentences become elusive and huge mental blanks become common, as though you are forgetting the very act of speaking.  Everything you think and know is dictated by the interrogators.  You become fully dependent with a childlike reliance on your captors…It was a constant struggle not to lose my sanity and go mad.  It would have been so easy just to let it go; it offered the only escape.   [6]

Because interrogation under such circumstances is inherently coercive and brain-washing, there is great danger that testimony or information obtained in this manner will be unreliable or false.

Specific Objections Based on NCPCF’s Mission

NCPCF would like to focus this statement on two aspects of solitary confinement that are of particularly concern to its mission:

1.   Pre-trial Solitary Confinement, Protective Custody, and Special Administrative Measures (SAMs)

In the last decade, there has been a great increase in the use of prolonged solitary confinement for defendants awaiting trial at a time when the defendants, by law, are presumed innocent.  In national security (terrorism) cases especially, federal prisons tend to place defendants in pre-trial solitary confinement for security reasons based solely on the allegations of the charges, disregarding the possibility that the defendant may be innocent or entrapped, and disregarding often substantial evidence that the defendants are only marginally involved and are not dangerous.  To avoid the appearance that the defendants were placed in  pre-trial solitary confinement as punishment (before having been found guilty which would be illegal), prisons often claim that the charges by themselves establish the defendant’s dangerousness – that solitary confinement is necessary for security reasons and not as punishment for crimes yet untried.  [7]

Until recently the courts have shown little inclination to interfere with such BOP determinations even when these claims are patently ridiculous.  However in US v. Viktor Bout, (USDC, SDNY, 2012), a Court held on February 24, 2012, that a defendant was improperly held in solitary confinement in the SHU for 14 months (before and after conviction), notwithstanding that he was found guilty of terrorist related charges for conspiring to supply arms to kill American citizens. Prison authorities claimed that the defendant had to be held in solitary confinement because of the serious nature of the charges, the defendant’s vast resources and connections with violent criminal associates, his leadership abilities both with the inmates and persons who might try to rescue him from outside, and his general ability to “control and influence people”.  (The Prison also noted that the case had received “broad publicity, which could place [the defendant] at risk and abuse by other inmates” – thus invoking the “Protective Custody” rationale describe above.)  Notwithstanding these concerns, the Court directed that the defendant be returned to the general population of the prison, stating “There is no valid rational connection between the BOP’s decision to keep Bout in the SHU for more than fourteen months and any legitimate governmental interests put forth to justify it”.  The BOP failed to give any particularized explanation as to why the defendant was a security risk requiring drastic measures.  The judge also noted that “It is well documented that long periods of solitary confinement can have devastating effects on the mental well-being of a detainee”. (Decision page 9)

Notwithstanding the Bout decision, many defendants, especially those charged in national security cases are placed in solitary confinement from the moment they are charged, based solely on the allegations of the criminal complaint.   Defendants awaiting trial must focus their attention on cooperating with their lawyers to prepare a defense, and on preparing themselves to testify at their trial.  Solitary confinement is a substantial burden on both these activities. Solitary confinement dulls the ability of many prisoners to think and communicate.  Words are hard to form.  Ideas become difficult to express.  Speech is impaired.  It becomes difficult to communicate with lawyers about possible defenses.  Moreover, some defendants under prolonged solitary confinement experience panic attacks and paranoia.  This paranoia may be directed against the lawyer.  The defendant may think, “If my lawyer was really working on my behalf, why am I still in solitary confinement?  Perhaps my lawyer is working against me.”  The trust necessary between the client and the lawyer is undermined.

Moreover at trial the defendant may find it impossible to speak articulately or to express thoughts in a way that the jury can understand.  Solitary confinement can destroy a defendant’s ability to communicate which may preclude the defendant from testifying on his own behalf.

As a result the longer a defendant is held in solitary confinement, the greater the pressure grows to plead guilty to avoid a trial for which the defendant is ill prepared;  the defendant may become so disoriented and unable to testify that they feel they have no alternative but to plead guilty.  Even if they decide to go to trial, such defendants often do not testify in their own behalf.  Prolonged pre-trial solitary confinement and the torture inherent in it amounts in many cases to a denial of counsel,  a denial of a fair trial, a denial of an opportunity for the defendant to testify in his or her own defense, and a denial of due process.

For example, in US. v. Mohammed Warsame, the government held the defendant in solitary confinement for 5 and 1/2 years, until the defendant asked to plead guilty to something so that he could escape the torture of solitary confinement.  When the defendant was finally allowed to plead guilty he was released soon afterwards.  Before he pleaded guilty, the BOP claimed that he was so dangerous by virtue of the charges against him that he could not be safely allowed to interact with anyone else.  Once he pleaded guilty and served a few more months in jail, the government was willing to release him.  This case and many others like it reflect the hypocrisy and unfairness of the government in falsely claiming that a defendant is dangerous based on the charges alone.  The purpose of solitary confinement was obviously to pressure the defendant into cooperating or pleading guilty to a charge that the government was not prepared to prove.

The problems of preparing a defense are multiplied when the defendant is placed under Special Administrative Measures, or SAMs.  SAMs were originally created to prevent organized crime figures from running their crime empires from jail, or from threatening witnesses not to testify; the SAMs were focused on specific security restrictions and were no more restrictive than necessary to meet the specific dangers presented.  Today SAMs have evolved into a system to subvert the defense.  Typically SAMs now require that people who have spoken to the defendant are prohibited from speaking to other people about the conversation – including the defendant’s own lawyer.  If the defendant’s family becomes concerned about the defendant’s mental condition, they cannot speak about it to the lawyer.  If lawyers want to talk to witnesses they cannot refer to things which the defendant has told them.  After consulting with the client the lawyer cannot even communicate information to members of the defense team.   SAMs destroys zealous representation and the trust between attorney and client.  How can a client have any trust in a lawyer who is so restricted and controlled by the prosecution that if the lawyer says publicly anything of which the client spoke, the lawyer can be prosecuted and given a long jail sentence?  (See US v. Lynne Stewart for an example of a lawyer who made one public statement about a conversation with a client who was under SAMs, and was given a 10 year jail sentence.)

2.  Post-trial Solitary Confinement – Supermax and CMUs

After trial defendants can be given years in jail in solitary confinement.  Although the decision as to whether the defendant must serve the sentence in solitary is one of the most important aspects of the sentence, the courts have no control over it.  Only the BOP decides where a sentence will be served, and if it will be served in a supermax or other prison where solitary is the norm.  It is astonishing that the decision whether a defendant will potentially be tortured for the rest of his life in solitary is completely out of the control of the Courts.  NCPCF believes that prolonged solitary confinement should be abolished in all its forms, but that if any solitary confinement issues remain, it should be imposed only on approval of the courts after a full due process hearing at which all sides can be heard.  Allowing the BOP and the Department of Justice to determine whether prisoners should serve their sentence under solitary confinement gives the prosecution an enormously unfair advantage and a method of pressuring defendants into pleading guilty, or giving false testimony to escape the torture of solitary confinement.

In December 2006, the Bush Administration quietly opened a special prison in Terre Haute Indiana, designed primarily for Muslim prisoners.  Called a Communication Management Unit, or CMU, this predominantly Muslim prison was designed to restrict communication between the inmates and the outside world in what might be described as a collective or group solitary confinement.  The BOP opened the prison without complying with legal requirements, and in 2010, in Aref et al. v. Holder et. al. some inmates sue to close the CMU because it was illegally opened.  In March 2011, a judge permitted the case to go to trial on a number of due process issues.  A trial date is expected soon.

There are now two CMU – one at Terre Haute Indiana and one at Marion Illinois.  The prisons were apparently designed to prevent prisoners who have ideologies abhorrent to the government from allowing their ideas to disseminate throughout the prison system and the general public.  In fact, however, the restrictions on communications seem more designed to prevent the prisoners from demonstrating the unfairness of their convictions and their unjust treatment by the government.  The restriction on communication puts a tremendous burden on their families.  Moreover, placing both prisons in the middle of the United States, make it very difficult for families from the coasts of the US to visit their loved ones.  A round trip by car from the coast can require as much as a week.

The two CMUs in some ways resemble the prison at Guantanamo Bay Cuba.  At Guantanamo hundreds of Muslim prisoners were incarcerated for years under conditions amounting to torture although it is now known that approximately 80% of the prisoners there were innocent and the government knew that they were innocent.  In the same way, the CMUs now houses hundreds of Muslim prisoners most of whom are innocent or grossly overcharged.  Like the Guantanamo prison, the primary purpose of the CMUs seems to be to harass and abuse the prisoners over their Muslim faith.  For example, although the two CMU have a majority of prisoners who are Muslim, the CMUs refuse to serve the inmates halal (or religiously correct) meals.  In other prisons, other faiths receive meals appropriate for their religious beliefs, but in a CMU in a prison of mostly Muslim, religiously correct meals are not available!

Marion CMU prisoners have complained that the guards refuse to allow the prisoners to pray together although that is a basic requirement of Islam; Muslims can congregate together for other activities but not prayer.  Other faiths can pray together; only Muslims cannot pray together.  The prisoners have reported to us that the guards routinely show disrespect for the Muslims and their faith by regularly throwing the holy Koran on the floor, and by making insulting comments about the Prophet Mohammed and Islam.  The guards will not make accommodations for Muslim who must break their fast only after sundown.  Other religions receive accommodations for religious observances but not Muslims.  In a prison in which a majority of prisoners are Muslim, there is simply no excuse for such disrespect.

To the extent that the CMU’s are America’s second ethnic prisons (the first being the internment of the Japanese during world war II), they are a disgrace which flaunt the equal protection clause of the Constitution and the freedom of religion clause of the Bill of Rights.  To the extent that they are ideological prisons designed to repress dissidents, they violate the right of people, including prisoners to speak freely.  CMUs serve no purpose, and should be closed.  They are ideological and racial prisons that perpetuate racism and bigotry in this country

Recommendations

1.  Prolonged solitary confinement should be prohibited as torture.  Prisoners should not be subjected to solitary confinement for more than 15 days, and only for disciplinary punishment after following proper due process requirements.  High security prisons such as the supermax should no longer use solitary confinement as a standard method of housing inmates.

2.  Pre-trial solitary confinement should be prohibited.  SAMs should be imposed only by the court after a particularized showing of special circumstances as to why some restrictions of confinement are necessary.  The court should be required to impose only the least restrictive conditions that will meet the particular needs proved by the government after a due process hearing.  Since the defendant is entitled to the presumption of innocence, little or no weight should be given to the seriousness of the charges.  Rather the issue should be what particular facts outside the charges require that restrictions be placed on the confinement of the defendant.

3. Congress should require that the CMUs be closed.  Although a court trial is presently being scheduled as to whether the CMUs were illegally constituted, an eventual court decision may be inconclusive or a long way off.  Congress should exercise its independent power now to close the two ethnic prisons that serve no purpose other than to allow guards to harass and humiliate Muslims for observing their faith.

4.  Protective custody should be imposed only with the consent of the inmate.

Respectfully Submitted,

Stephen F. Downs,

Interim Executive Director, National Coalition to Protect Civil Freedoms

26 Dinmore Road, Selkirk NY.  12158 swdowns68@aol.com  (518-767-0102)



[1]Solitary confinement appears in state and federal prison systems under a variety of names:  Protective Custody – to protect the inmate from violence by other inmates;

Special Administrative Measures (SAMs) – to restrict the inmate in some specific way from communicating with others because of particular dangers that might result from such communication;

Special Housing Units (SHU) – to discipline inmates for some violation of prison rules; Communication Management Units (CMU) – to hold certain prisoners in prisons isolated from contact with the outside world so that the voices and ideas of the inmates will be heard as little as possible outside the prison.

Supermax Prisons – High security prisons designed to hold all inmates in solitary confinement.

[2] The Constitutional framework for considering solitary confinement is set forth in Turner v. Safley, 482 U.S. 78  (1987),  in which the Supreme Court held that courts can consider prison regulations that place a “burden on fundamental rights”.  The Courts must first examine whether the regulation in question (solitary confinement) is “reasonably related” to legitimate penological objectives, or whether it represents an “exaggerated response” to those concerns; second, whether there are alternative means for the prisoner to exercise the fundamental right at issue; third, the impact that the desired accommodation will have on guards, other inmates and prison resources; and fourth, the absence of “ready alternatives”.   Turner at 87-91.  Where the prisoner is being held in solitary confinement before trial, an additional consideration is that the Due Process Clause of the US Constitution prohibits the inmate from being punished for the crime before being convicted of it.  Punishment is a legitimate objective of solitary confinement only after conviction. Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979).  However, the Turner court also held that in conducting a review, the courts must give great deference to the Bureau of Prisons (BOP) determination because the courts are “ill-equipped to deal with the increasingly urgent problems of prison administration and reform.”  (Turner at 84-85).  As a result few courts have overturned BOP decisions.

[3]  1948 Geneva Convention III – 1948 (Article 90).

[4] Craig Haney & Mona Lynch, Regulating Prisons of the Future:  A Psychological Analysis of Supermax and Solitary confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 531 (1997)

[5] Quoted from “Solitary Confinement: The Invisible Torture” by Brandon Keim, Wired Science, April 29, 2009, http://www.wired.com/wiredscience/2009/04/solitary confinement/

[6]An Interview with former Guantanamo Detainee David Hicks”, by Jason Leopold, Truthout,  February 16, 2011, http://www.truth-out.org/exclusive-an-interview-with-former-guantanamo-detainee-david -hicks67818.

[7] See for example the recent case of two codefendants in which one co-defendant pleaded guilty and was released from solitary confinement, while the other refused to plead guilty and was forced to remain in solitary. http://www.timesunion.com/news/article/Attorney-Terror-suspect-isolated-for-a-year-3625138.php

 

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