www.CivilFreedoms.

Org

February 21, 2014

Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights Attention: Stephanie Trifone; !en Reilly stephanie"trifone#$udiciary%dem&senate&gov o!en"reilly#$udiciary%dem&senate&gov Re: Subcommittee Hearings on Solitary Confinement 'ear (embers of the Subcommittee: The )ational Coalition To *rotect Civil +reedoms, ,)C*C+-, is a coalition of ./ Civil Rights, *eace, and (uslim rgani0ations focused on ending *reemptive *rosecution, *rofiling and *risoner Abuse including solitary confinement& 1nformation about )C*C+ and our member organi0ations can be found on our !ebsite at !!!&Civil+reedoms& rg& 2e !ish to address the Subcommittee !ith respect to its hearings on the abuse of solitary confinement&. NCPCF is Generally Opposed to All Forms of Prolonged Solitary Confinement T!o reasons commonly cited by the 3ureau of *risons ,3 *- for imposing solitary confinement are 4prison security5 and 4disciplinary punishment5& 1n practice, the courts give
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 ,SA(s- % to restrict the inmate in some specific !ay from communicating !ith others because of particular dangers that might result from such communication; Special Housing Units ,SH6- 7 to discipline inmates for some violation of prison rules; Communication Management Units ,C(6- 7 to hold certain prisoners in prisons isolated from contact !ith the outside !orld so that the voices and ideas of the inmates !ill be heard as little as possible outside the prison& Supermax Prisons 7 High security prisons designed to hold all inmates in solitary confinement&

!ide latitude to prison authorities to provide for their o!n security and prisoner punishment, and in the past have generally not interfered !ith decisions to impose solitary confinement on these bases&8 As a result, the rationale to impose solitary confinement is often contrived& 3efore trial, an inmate can be placed in solitary confinement for protective custody, and then have SA(s added, supposedly for prison security reasons, then be placed in the SH6 for disciplinary reasons, and then after conviction he may be placed in the C(6 or the Superma9 supposedly for security reasons& 1n practice, solitary confinement is often imposed arbitrarily or for improper reasons such as to brea: a defendant do!n 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& 1t has been !ell established that prolonged solitary confinement is detrimental to mental health, and can cause permanent mental health damage& 1t is considered a form of torture& +or this reason the <eneva Conventions on treatment of prisoners of !ar prohibit solitary confinement for more than .= days&> As a form of torture it is prohibited by many treaties and la!s& )ot!ithstanding the clear illegality of the practice, the last decade has seen torture and solitary confinement gain acceptance in military, penal and la! enforcement practices, both in the 6S and through secret renditions abroad& *rolonged solitary confinement is no! probably
2

The Constitutional frame!or: for considering solitary confinement is set forth in Turner v. Safley, ?/8 6&S& @/ ,.A/@-, in !hich the Supreme Court held that courts can consider prison regulations that place a 4burden on fundamental rights5& The Courts must first e9amine !hether the regulation in Buestion ,solitary confinement- is 4reasonably related5 to legitimate penological ob$ectives, or !hether it represents an 4e9aggerated response5 to those concerns; second, !hether there are alternative means for the prisoner to e9ercise the fundamental right at issue; third, the impact that the desired accommodation !ill have on guards, other inmates and prison resources; and fourth, the absence of 4ready alternatives5& Turner at /@%A.& 2here the prisoner is being held in solitary confinement before trial, an additional consideration is that the 'ue *rocess Clause of the 6S Constitution prohibits the inmate from being punished for the crime before being convicted of it& *unishment is a legitimate ob$ective of solitary confinement only after conviction& Bell v. Wolfish, ??. 6&S& =8C, =>@ n& .D ,.A@A-& Ho!ever, the Turner court also held that in conducting a revie!, the courts must give great deference to the 3ureau of *risons ,3 *- determination because the courts are 4ill%eBuipped to deal !ith the increasingly urgent problems of prison administration and reform&5 ,Turner at /?%/=-& As a result fe! courts have overturned 3 * decisions&
>

.A?/ <eneva Convention 111 7 .A?/ ,Article AC-&

the most !idely practice method of torture in the 6S& )umerous studies and the testimony of those !ho have e9perienced prolonged solitary confinement establish ho! po!erful a form of torture it is to e9perience the intense pain, disorientation, confused thin:ing, loss of speech, paranoia, and induced insanity that accompanies prolonged solitary confinement&
?

As

*sychologist Craig Haney of the 6niversity of California%Santa Cru0, an e9pert on long%term solitary confinement has stated: ESolitary confinementF is itself a painful and potentially harmful condition of confinementGE1Ft has historically been a part of torture protocols& 1t !as !ell documented in South Africa& 1t;s been used to torture prisoners of !arG it is a very painful e9perienceG&1t;s certainly profoundly damaging if people lose hold of their o!n sanity& +or some people their sense of themselves changes so profoundly and so fundamentally that they are unable to regain it& = The use of torture and solitary confinement does enormous damage to the 6nited States of America& 1t destroys our moral authority, undermines due process and the rule of la!, infects our legal system !ith coerced and false statements and pleas of guilty, and impairs our relationship !ith other countries and cultures that abhor torture, and Buestion ho! they can cooperate !ith such a system !ithout themselves becoming complicit& Torture is so clearly illegal, ,not!ithstanding John Hoo;s best efforts to opine other!ise-, that the 6S government has made elaborate efforts to conceal its illegal torture activities, establishing hidden 4blac:5 sites, and secret illegal rendition agreements !ith other countries& Transparency and accountability have been lost& 2ith no clear purpose or policy in place, the treatment of inmates has been left to !hatever sadistic or vengeful motives may inhabit the authorities in charge& )C*C+ opposes all forms of prolonged solitary confinement not only because it is torture, but because it is bad prison policy& 1t damages the prisoner;s mental health, and fails to prepare them for eventual release& 2hy !ould the 6S deliberately damage prisoner;s mental health only to release them bac: into societyI 1t ma:es no sense& 2ith so many reasons to re$ect torture and solitary confinement !hy is the practice increasingI There are general reasons for this, including the increased use of private prisons, the !arehousing of prisoners, and the abandonment of attempts to 4correct5 or 4reform5 prisoner;s
4

Craig Haney J (ona Kynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax an Solitary confinement, !" #.$.%. Rev. &. ' Soc. (hange )**, +", -,..*/
5

Luoted from 4Solitary Confinement: The 1nvisible Torture5 by 3randon Meim, 2ired Science, April 8A, 8CCA, http:NN!!!&!ired&comN!iredscienceN8CCANC?Nsolitary confinementN

behavior& Ho!ever, one reason seems to be the increased reliance by American la! enforcement officers on coerced statements and cooperation from inmates to obtain information and convictions& Solitary confinement is thought to 4soften5 inmates up and ma:e them more susceptible to giving information& As !ith any form of torture, solitary confinement may become so painful that inmates !ill agree to cooperate, but there is no guarantee that this cooperation !ill provide truthful information& Solitary confinement induces mental confusion, disorientation, and inability to thin: clearly& 1nterrogators believe that it can give them an advantage in planting ideas in an inmate;s head, and e9tracting information that la! enforcement officers !ant to hear& As 'avid Hic:s stated about his e9perience !ith solitary confinement: Tal:ing becomes difficult, so !hen conversations do ta:e place you cannot form !ords or thin:GECFoherent sentences become elusive and huge mental blan:s become common, as though you are forgetting the very act of spea:ing& Overything you thin: and :no! is dictated by the interrogators& Hou become fully dependent !ith a childli:e reliance on your captorsG1t !as a constant struggle not to lose my sanity and go mad& 1t !ould have been so easy $ust to let it go; it offered the only escape& D 3ecause interrogation under such circumstances is inherently coercive and brain%!ashing, there is great danger that testimony or information obtained in this manner !ill be unreliable or false& Specific O !ections "ased on NCPCF#s Mission )C*C+ !ould li:e to focus this statement on t!o aspects of solitary confinement that are of particularly concern to its mission: $% Pre&trial Solitary Confinement' Protective Custody' and Special Administrative Measures (SAMs) 1n the last decade, there has been a great increase in the use of prolonged solitary confinement for defendants a*aiting trial at a time !hen the defendants, by la!, are presumed innocent& 1n 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
6

4An 0ntervie1 1ith former 2uantanamo 3etainee 3avi 4ic5s5, by Jason Keopold, Truthout, +ebruary .D, 8C.., http:NN!!!&truth%out&orgNe9clusive%an%intervie!%!ith%former%guantanamo%detainee%david %hic:sD@/./&

disregarding often substantial evidence that the defendants are only marginally involved and are not dangerous& To avoid the appearance that the defendants !ere placed in pre%trial solitary confinement as punishment ,before having been found guilty !hich !ould 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& 6ntil recently the courts have sho!n little inclination to interfere !ith such 3 *
+

determinations even !hen these claims are patently ridiculous& Ho!ever in %S v. 6i5tor Bout, ,6S'C, S')H, 8C.8-, a Court held on +ebruary 8?, 8C.8, that a defendant !as improperly held in solitary confinement in the SH6 for .? months ,before and after conviction-, not!ithstanding that he !as found guilty of terrorist related charges for conspiring to supply arms to :ill American citi0ens& *rison 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 !ith violent criminal associates, his leadership abilities both !ith the inmates and persons !ho might try to rescue him from outside, and his general ability to 4control and influence people5& ,The *rison also noted that the case had received 4broad publicity, !hich could place Ethe defendantF at ris: and abuse by other inmates5 7 thus invo:ing the 4*rotective Custody5 rationale describe above&- )ot!ithstanding these concerns, the Court directed that the defendant be returned to the general population of the prison, stating 4There is no valid rational connection bet!een the 3 *;s decision to :eep 3out in the SH6 for more than fourteen months and any legitimate governmental interests put forth to $ustify it5& The 3 * failed to give any particulari0ed e9planation as to !hy the defendant !as a security ris: reBuiring drastic measures& The $udge also noted that 41t is !ell documented that long periods of solitary confinement can have devastating effects on the mental !ell%being of a detainee5& ,'ecision page A)ot!ithstanding 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& 'efendants a!aiting trial must focus their attention on cooperating !ith their la!yers to prepare a defense, and on preparing themselves to testify at their trial& Solitary confinement is a substantial burden on both these activities& Solitary See for e9ample the recent case of t!o codefendants in !hich one co%defendant pleaded guilty and !as released from solitary confinement, !hile the other refused to plead guilty and !as forced to remain in solitary& http:NN!!!&timesunion&comNne!sNarticleNAttorney%Terror%suspect%isolated%for%a%year%>D8=.>/&ph p
@

confinement dulls the ability of many prisoners to thin: and communicate& 2ords are hard to form& 1deas become difficult to e9press& Speech is impaired& 1t becomes difficult to communicate !ith la!yers about possible defenses& (oreover, some defendants under prolonged solitary confinement e9perience panic attac:s and paranoia& This paranoia may be directed against the la!yer& The defendant may thin:, 41f my la!yer !as really !or:ing on my behalf, !hy am 1 still in solitary confinementI *erhaps my la!yer is !or:ing against me&5 The trust necessary bet!een the client and the la!yer is undermined& (oreover at trial the defendant may find it impossible to spea: articulately or to e9press thoughts in a !ay that the $ury can understand& Solitary confinement can destroy a defendant;s ability to communicate !hich may preclude the defendant from testifying on his o!n behalf& As a result the longer a defendant is held in solitary confinement, the greater the pressure gro!s to plead guilty to avoid a trial for !hich 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& Oven if they decide to go to trial, such defendants often do not testify in their o!n behalf& *rolonged 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 o!n defense, and a denial of due process& +or e9ample, in %S. v. 7ohamme Warsame, the government held the defendant in solitary confinement for = and .N8 years, until the defendant as:ed to plead guilty to something so that he could escape the torture of solitary confinement& 2hen the defendant !as finally allo!ed to plead guilty he !as released soon after!ards& 3efore he pleaded guilty, the 3 * claimed that he !as so dangerous by virtue of the charges against him that he could not be safely allo!ed to interact !ith anyone else& nce he pleaded guilty and served a fe! more months in $ail, the government !as !illing to release him& This case and many others li:e 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 !as obviously to pressure the defendant into cooperating or pleading guilty to a charge that the government !as not prepared to prove& The problems of preparing a defense are multiplied !hen the defendant is placed under Special Administrative (easures, or SA(s& SA(s !ere originally created to prevent organi0ed crime figures from running their crime empires from $ail, or from threatening !itnesses not to testify; the SA(s !ere focused on specific security restrictions and !ere no more restrictive than

necessary to meet the specific dangers presented& Today SA(s have evolved into a system to subvert the defense& Typically SA(s no! reBuire that people !ho have spo:en to the defendant are prohibited from spea:ing to other people about the conversation 7 including the defendant;s o!n la!yer& 1f the defendant;s family becomes concerned about the defendant;s mental condition, they cannot spea: about it to the la!yer& 1f la!yers !ant to tal: to !itnesses they cannot refer to things !hich the defendant has told them& After consulting !ith the client the la!yer cannot even communicate information to members of the defense team& SA(s destroys 0ealous representation and the trust bet!een attorney and client& Ho! can a client have any trust in a la!yer !ho is so restricted and controlled by the prosecution that if the la!yer says publicly anything of !hich the client spo:e, the la!yer can be prosecuted and given a long $ail sentenceI ,See %S v. &ynne Ste1art for an e9ample of a la!yer !ho made one public statement about a conversation !ith a client !ho !as under SA(s, and !as given a .C year $ail sentence&8& *ost%trial Solitary Confinement 7 Superma9 and C(6s After trial defendants can be given years in $ail in solitary confinement& Although the decision as to !hether 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& nly the 3 * decides !here a sentence !ill be served, and if it !ill be served in a superma9 or other prison !here solitary is the norm& 1t is astonishing that the decision !hether a defendant !ill potentially be tortured for the rest of his life in solitary is completely out of the control of the Courts& )C*C+ 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 !hich all sides can be heard& Allo!ing the 3 * and the 'epartment of Justice to determine !hether 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& 1n 'ecember 8CCD, the 3ush Administration Buietly opened a special prison in Terre Haute 1ndiana, designed primarily for (uslim prisoners& Called a Communication (anagement 6nit, or C(6, this predominantly (uslim prison !as designed to restrict communication bet!een the inmates and the outside !orld in !hat might be described as a collective or group solitary confinement& The 3 * opened the prison !ithout complying !ith legal reBuirements, and in 8C.C, in Aref et al. v. 4ol er et. al. some inmates sue to close the C(6 because it !as

illegally opened& 1n (arch 8C.., a $udge permitted the case to go to trial on a number of due process issues& A trial date is e9pected soon& There are no! t!o C(6 7 one at Terre Haute 1ndiana and one at (arion 1llinois& The prisons !ere apparently designed to prevent prisoners !ho have ideologies abhorrent to the government from allo!ing their ideas to disseminate throughout the prison system and the general public& 1n fact, ho!ever, the restrictions on communications seem more designed to prevent the prisoners from demonstrating the unfairness of their convictions and their un$ust treatment by the government& The restriction on communication puts a tremendous burden on their families& (oreover, placing both prisons in the middle of the 6nited States, ma:e it very difficult for families from the coasts of the 6S to visit their loved ones& A round trip by car from the coast can reBuire as much as a !ee:& The t!o C(6s in some !ays resemble the prison at <uantanamo 3ay Cuba& At <uantanamo hundreds of (uslim prisoners !ere incarcerated for years under conditions amounting to torture although it is no! :no!n that appro9imately /CP of the prisoners there !ere innocent and the government :ne! that they !ere innocent& 1n the same !ay, the C(6s no! houses hundreds of (uslim prisoners most of !hom are innocent or grossly overcharged& Ki:e the <uantanamo prison, the primary purpose of the C(6s seems to be to harass and abuse the prisoners over their (uslim faith& +or e9ample, although the t!o C(6 have a ma$ority of prisoners !ho are (uslim, the C(6s refuse to serve the inmates halal ,or religiously correctmeals& 1n other prisons, other faiths receive meals appropriate for their religious beliefs, but in a C(6 in a prison of mostly (uslim, religiously correct meals are not availableQ (arion C(6 prisoners have complained that the guards refuse to allo! the prisoners to pray together although that is a basic reBuirement of 1slam; (uslims can congregate together for other activities but not prayer& ther faiths can pray together; only (uslims cannot pray together& The prisoners have reported to us that the guards routinely sho! disrespect for the (uslims and their faith by regularly thro!ing the holy Moran on the floor, and by ma:ing insulting comments about the *rophet (ohammed and 1slam& The guards !ill not ma:e accommodations for (uslim !ho must brea: their fast only after sundo!n& ther religions receive accommodations for religious observances but not (uslims& 1n a prison in !hich a ma$ority of prisoners are (uslim, there is simply no e9cuse for such disrespect& To the e9tent that the C(6;s are America;s second ethnic prisons ,the first being the internment of the Japanese during !orld !ar 11-, they are a disgrace !hich flaunt the eBual

protection clause of the Constitution and the freedom of religion clause of the 3ill of Rights& To the e9tent that they are ideological prisons designed to repress dissidents, they violate the right of people, including prisoners to spea: freely& C(6s serve no purpose, and should be closed& They are ideological and racial prisons that perpetuate racism and bigotry in this country ,ecommendations .& *rolonged solitary confinement should be prohibited as torture& *risoners should not be sub$ected to solitary confinement for more than .= days, and only for disciplinary punishment after follo!ing proper due process reBuirements& High security prisons such as the superma9 should no longer use solitary confinement as a standard method of housing inmates& 8& *re%trial solitary confinement should be prohibited& SA(s should be imposed only by the court after a particulari0ed sho!ing of special circumstances as to !hy some restrictions of confinement are necessary& The court should be reBuired to impose only the least restrictive conditions that !ill 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 !eight should be given to the seriousness of the charges& Rather the issue should be !hat particular facts outside the charges reBuire that restrictions be placed on the confinement of the defendant& >& Congress should reBuire that the C(6s be closed& Although a court trial is presently being scheduled as to !hether the C(6s !ere illegally constituted, an eventual court decision may be inconclusive or a long !ay off& Congress should e9ercise its independent po!er no! to close the t!o ethnic prisons that serve no purpose other than to allo! guards to harass and humiliate (uslims for observing their faith& ?& *rotective custody should be imposed only !ith the consent of the inmate& Respectfully Submitted, Stephen +& 'o!ns, 1nterim O9ecutive 'irector, )ational Coalition to *rotect Civil +reedoms 8D 'inmore Road, Sel:ir: )H& .8.=/ s!do!nsD/#aol&com =./%@D@%C.C8