Finally, Justice at Supermax? If Anyone Can Make the Right Call, It's This Judge

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He's tough. He's courageous. He tried Timothy McVeigh. Now Richard Matsch takes on another critical case: a civil rights lawsuit alleging prisoner abuse and neglect.

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Judge Matsch in 1997, during the Oklahoma City Bombing trial. (Gary Caskey/Reuters)

Another year has come and gone, and there they sit, four federal prisoners in tiny jail cells at ADX-Florence in Colorado -- the so-called "Supermax" facility known to the world as America's most secure and famous prison. The men came to Florence for different reasons, including extreme violence, but their causes now are joined. They are plaintiffs in a pending civil rights case for three simple reasons: They each are severely mentally ill; they each have requested adequate medical treatment; and they each have been denied this treatment, often cruelly so, by prison officials.

Those officials, through their lawyers at the Justice Department in Washington and in the U.S. Attorney's Office in Denver, have spent the past three months trying to end the lawsuit before it really begins -- before, that is, the Bureau of Prisons must make its officials available to the plaintiffs' lawyers for sworn depositions and other forms of pretrial discovery. As a matter of law, the government says, not only are the prisoners not entitled to any substantive remedy; they are not even entitled to inquire further into the bases for the allegations they have made.

For now, with the dismissal briefs and replies finally all submitted two weeks ago, the matter rests with a federal judge in Denver, and here is where the plaintiffs, these wretched men, may have finally caught a break. The judge is U.S. District Judge Richard Matsch, the hero of the Oklahoma City bombing trials, one of the most independent and courageous federal judges in history. He's not awed by the sweep of unfettered power the Bureau of Prisons holds over these men. And he's not likely to be impressed by the circular logic of the defense here.

The issue of the transparency and accountability of the Bureau of Prisons is not limited to the Colorado case. Next month, for example, the United States Supreme Court will hear argument in another alarming case in which prison officials are alleged to have abused and mistreated prisoners: another case in which the federal government has asserted broad legal immunity; another instance where there is little legislative oversight over prison business and where the judiciary is being asked to defer to the judgment of bureaucrats who claim they are giving their prisoners all the medical treatment they need and all the legal rights they deserve.

The Men

One such prisoner in the Colorado case is a mentally ill man named Harold Cunningham. He is never going to leave prison -- he's serving a life sentence plus 380 years. But he's asked prison officials eight times in 11 years for mental health treatment. What's been the BOP response? From the complaint: "The extent of Mr. Cunningham's treatment for his mental illness during his 11 years at ADX has consisted of therapy classes on an educational channel on television, and two workbooks: 'Breaking Barriers' and 'Cage Your Rage.'"

When, in 2004, Cunningham asked Bureau of Prisons' officials for psychiatric treatment, he was given a "telepsychiatry session" in his cell, surrounded by guards, before which he was "handcuffed from behind with shackles on his legs." He had a similar "session" again this past October, for 15 minutes. Again he was told he would not be treated. What do you think the odds are that such sessions would generate a productive response? What sort of private therapist do you think would countenance counseling a patient in such circumstances? At that time, the complaint notes, there was this exchange between Cunningham and his jailors:

In his appeal, Cunningham wrote, "I am in pain everyday that makes me act out in uncontrollable [sic] ways... Records show that when I'm taking my medication I can function without paint or suffering or incident." In response, the BOP argued, among other things, that "[i]t is evident you have received prompt, professional medical care consistent with reasonable standards and Bureau of Prisons' policy."

The lawsuit seeks to allow lawyers to question prison officials, and staff psychologists, about these conclusions and policies. How does the BOP justify the alleged presence of only two psychologists at ADX-Florence, responsible for the mental health treatment of approximately 450 prisoners? And how does the BOP explain the presence of mentally ill prisoners at Supermax at all, given the terms of its own policy, which states that men "currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at... ADX"?

The plight of another plaintiff, Ernest Shaifer, who also has a long history of severe mental illness, illustrates another area of questioning that warrants an explanation from the Bureau. Its policy now precludes the use of psychotropic drugs in the ADX-Florence Control Unit. Shaifer has been in that Unit at Florence since 2004, seeking during that time to be treated for his illness. Despite his repeated requests, the BOP recently concluded that he could not be given medication but would be helped to develop good "coping skills." He is scheduled to be released in July 2014. Who exactly at the Bureau of Prisons is willing to testify, under oath, that Shaifer will be mentally stable upon release?

Officials from the BOP should also have to explain under oath why they so frequently reject the recommendations of sentencing judges. In the case of another plaintiff, another patently psychotic prisoner, a man diagnosed with PTSD, bipolar disorder, and epilepsy, prison officials blew off two federal judges, each of whom indicated, when sentencing Jeremy Pinson, that he would need significant mental health treatment in prison. There are several prisons within the federal system specifically designed to treat mentally ill prisoners. ADX-Florence, where Pinson is housed, is not one of them. He's been on suicide watch at least ten times, including most recently last month.

Finally, there is the case of John Narducci, another named plaintiff. When he was four years old, his father was shot and killed in the boy's home. When he was 11, his mother had a fatal heart attack in front of him. He was the only one at home at the time. He then lived with his stepfather, who killed himself after being caught molesting Narducci's younger brother. Today, although he suffers from at least four major mental illness, including a Mixed Personality Disorder and symptoms of complex PTSD, the Bureau of Prisons is failing to treat Narducci. He is scheduled to be released in 2015. Who at the Bureau of Prisons is going to testify under oath that he's no threat to the public?

The Feds

In the face of these allegations, in the face of a complaint filed with examples of systemic abuse and mistreatment, the Obama Administration through its lawyers has recited a litany of legal and factual reasons why the case should be dismissed now, before any prison officials are deposed. The feds argue that the prisoners have not pleaded enough facts, with enough specificity, to permit the case to proceed. The feds argue that the prisoners have sued the wrong prison officials.

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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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