Supermax: The Constitution and Mentally Ill Prisoners

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The Eighth Amendment prohibits the "cruel and unusual punishment" of inmates. So how will the Bureau of Prisons defend itself at Supermax?

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The first two parts of this series begin to tell the tale of the way a handful of mentally ill prisoners allege they are being treated at ADX-Florence, widely known as "Supermax" and commonly perceived as the most secure federal prison facility in America. So far, officially, the story is just a series of dramatic prisoner allegations of abuse, cruelty, and torture against prison officials and medical personnel. Soon, the Justice Department, on behalf of the Bureau of Prisons, will answer the long complaint filed Monday by five inmates at the southern Colorado prison.

Allegations are not evidence. But in this case, they raise profound questions about how the famous facility is run and whether it is wise as a matter of law and policy to have ceded so much power to the Bureau of Prisons, which controls, in near absolute terms, the treatment of the nation's federal prisoners. The lawsuit seeks no money damages but instead aims to require federal officials to treat mentally ill inmates in accordance with existing law. The case demands a measure of accountability from a sprawling bureaucracy that seems to answer to no one.

The plaintiffs and others named in the lawsuit -- there are 11 men in all and more will likely be added -- live in a world recognizable more from the work of Kafka and Dostoevsky than from modern American life. In the name of prison safety, or in the name of nothing at all, they are often treated like animals and, when they complain, they are punished. The Eighth Amendment prohibits "cruel and unusual punishment," and it's hard to imagine anything more cruel than punishing a mentally ill person for the manifestations of his illness. Yet this allegedly occurs regularly at the ADX/Supermax facility.

Indeed, one of the fundamental concepts in American law is that we generally do not criminalize conduct by people whose minds do not have the requisite "criminal intent" at the time of the commission of the crime. This is why we don't prosecute people who are adjudged to be mentally incompetent -- think Jared Loughner, the Tucson shooter -- and why "legal insanity" has for centuries been an affirmative defense to criminal conduct. A significantly mentally ill person, almost per se, cannot have the requisite intent to be culpable in any justifiable legal or moral sense.

The lawsuit is worthy of particular notice in part because it was spearheaded by serious attorneys like Ed Aro -- a partner at a law firm, Arnold & Porter, that has a long and admirable tradition of pro bono work on behalf of the voiceless. Also filing the pleading was Deb Golden and the Washington Lawyers' Committee for Civil Rights and Urban Affairs, another organization with a long history of groundbreaking reform litigation. Dozens of other earnest, well-meaning women and men have devoted a great deal of time and effort to serve as a tribune for the Supermax prisoners.

Nor should the timing of the case be underestimated. It comes at a time when more participants in the criminal justice system, and especially the nation's penal systems, are questioning the wisdom of America's current obsession with the concept of "solitary confinement" and other harsh punitive measures. Yesterday, for example, Senator Richard Durbin (D-Ill.) held an important Senate Judiciary Committee subcommittee hearing on the topic. Here's how the senator's office framed the issue in a press release before the event:

The hearing will focus on the human rights, fiscal and public safety consequences of solitary confinement in U.S. prisons, jails, and detention centers. During the last several decades, the United States has witnessed an explosion in the use of solitary confinement for federal, state, and local prisoners and detainees. The hearing will explore the psychological and psychiatric impact on inmates during and after their imprisonment, fiscal savings associated with reduced use of solitary housing units, the human rights issues surrounding the use of isolation, and successful state reforms in this area.

Good questions, indeed. Our prison policies have evolved from generation to generation, but the law (and legal protections) don't appear to have caught up. Here is a link from the Innocence Project detailing the Capitol Hill testimony of six people who were wrongly convicted and spent time in solitary confinement. And here is how Charlie Samuels, the director of the Bureau of Prisons, opened his remarks to the subcommittee:

Inmate safety and well being is of the utmost importance to the bureau, as is the safety of our staff and the community at large. As such, we do all that we can to ensure that we provide outstanding care, treatment and programming to federal inmates, giving them the best opportunity for successful reentry to their communities...

When inmates are placed in restrictive housing there are varieties of significant safeguards in place to ensure inmates' due process rights are protected. Additionally, inmates' mental health is always a factor in decisions regarding segregated housing. Bureau psychologists are integrally involved in the restrictive housing placement process, and all staff who work in these units receive training and input from psychology services above and beyond our general staff training.

Samuels still has to answer for Supermax. And Senator Durbin need look no further than to the Florence, Colorado, federal prison for some of the answers to his questions. The Supermax lawsuit, styled Bacote v. Federal Bureau of Prisons, suggests that America is failing to adequately treat its mentally ill prisoners and, worse, that the punitive prison methods employed at ADX/Supermax are actually making previously sane inmates mentally ill. Part I of this series focused upon just such a story, about Jack Powers, whom the Bureau of Prisons essentially turned mad and now won't treat.

THE BUREAU OF PRISONS

Go to the Bureau of Prisons' website and it tells you immediately that the goal of the massive federal bureaucracy is "Protecting Society and Reducing Crime." Yet, as the lawsuit suggests, Supermax practices do neither. "Society" is left unprotected because the prison doesn't adequately treat even those mentally ill prisoners who soon will be released back into the public. One of the named plaintiffs, John Narducci, is scheduled to be released in 2015, and another, Ernest Norman Shaifer in 2014.

From the website, here is how the Bureau of Prisons wants the world to perceive the core of its work:

The Federal Bureau of Prisons was established in 1930 to provide more progressive and humane care for Federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of the 11 Federal prisons in operation at the time.

Today, the Bureau consists of 117 institutions, 6 regional offices, a Central Office (headquarters), 2 staff training centers, and 22 community corrections offices. The regional offices and Central Office provide administrative oversight and support to Bureau facilities and community corrections offices. In turn, community corrections offices oversee residential reentry centers and home confinement programs.

The Bureau is responsible for the custody and care of approximately 217,000 Federal offenders. Approximately 82 percent of these inmates are confined in Bureau-operated facilities, while the balance is confined in secure privately managed or community-based facilities and local jails.

The Bureau protects public safety by ensuring that Federal offenders serve their sentences of imprisonment in facilities that are safe, humane, cost-efficient, and appropriately secure. The Bureau helps reduce the potential for future criminal activity by encouraging inmates to participate in a range of programs that have been proven to reduce recidivism. Approximately 38,000 BOP employees ensure the security of Federal prisons, provide inmates with needed programs and services, and model mainstream values.

I added the italics to illustrate how vast the gulf is between rhetoric and reality when it comes to Supermax's mentally ill prisoners. The Bureau isn't candidly telling Americans that it often treats some of its mentally ill prisoners like animals. Instead, even as prison officials "four point" such prisoners in their cells or deprive them of needed medicine or treatment, the Bureau is telling us that it is treating the men with "humane care." This is not a new hypocrisy but rather an eternal truth of civilized life on this planet; prisons are always worse than the officials who run them say they are.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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