NCPCF Letter to the Senate Subcommittee Hearings on Solitary Confinement

8/12/2019 NCPCF Letter to the Senate Subcommittee Hearings on Solitary Confinement

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www.CivilFreedoms.OrgFebruary 21, 2014

Senate Judiciary CommitteeSubcommittee 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

1Solitary 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 MeasuresSA(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 UnitsSH6- 7 to discipline inmates for some violation of prison rules;

Communication Management UnitsC(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 Prisons7 High security prisons designed to hold all inmates in solitary confinement&
http://www.civilfreedoms.org/http://www.civilfreedoms.org/mailto:[email protected]:[email protected]://www.civilfreedoms.org/http://www.civilfreedoms.org/mailto:[email protected]:[email protected]://www.civilfreedoms.org/


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!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 defendants

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& +orthis reason the 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

2The Constitutional frame!or for considering solitary confinement is set forth in Turner v.

Safley,?/8 6&S& @/ ./@-, in !hich the Supreme Court held that courts can consider prisonregulations 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 /@%.& 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& =8, =>@ n& .D .@-& Ho!ever, the Turnercourt 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 Turnerat /?%/=-& As a result fe! courts have

overturned 3* decisions&

> .?/


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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 thining, 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& 1ts been used to torture prisoners of !arG it is a very

painful e9perienceG&1ts 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 oos best efforts to opine other!ise-,

that the 6S government has made elaborate efforts to conceal its illegal torture activities,

establishing hidden 4blac5 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 prisoners mental health,

and fails to prepare them for eventual release& 2hy !ould the 6S deliberately damage

prisoners mental health only to release them bac into societyI 1t maes 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 prisoners

4Craig Haney (ona Kynch, Regulating Prisons of the Future: A Psychological Analysis of

Supermax an Solitary confinement, !" #.$.%. Rev. &. ' Soc. (hange )**, +" -*/

5Luoted from 4Solitary Confinement: The 1nvisible Torture5 by 3randon Meim, 2ired Science,

April 8, 8, http:NN!!!&!ired&comN!iredscienceN8N?Nsolitary confinementN


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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 mae 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 inmates head, and e9tracting information that la! enforcement

officers !ant to hear&As 'avid Hics stated about his e9perience !ith solitary confinement:

Taling becomes difficult, so !hen conversations do tae place you cannot form !ords or

thinGECFoherent sentences become elusive and huge mental blans become common,as though you are forgetting the very act of speaing& Overything you thin and no! is

dictated by the interrogators& ou become fully dependent !ith a childlie 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 lie to focus this statement on t!o aspects of solitary confinement that are ofparticularly 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 trialat 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

64An 0ntervie1 1ith former 2uantanamo 3etainee 3avi 4ic5s5, by Jason Keopold,

Truthout, +ebruary .D, 8..,

http:NN!!!&truth%out&orgNe9clusive%an%intervie!%!ith%former%guantanamo%detainee%david

%hicsD@/./&


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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 defendants 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'), 8.8-, a Court held on +ebruary 8?, 8.8, 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 defendants vast resources andconnections !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 invoing 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 -

)ot!ithstanding theBoutdecision, 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
http://www.timesunion.com/news/article/Attorney-Terror-suspect-isolated-for-a-year-3625138.phphttp://www.timesunion.com/news/article/Attorney-Terror-suspect-isolated-for-a-year-3625138.phphttp://www.timesunion.com/news/article/Attorney-Terror-suspect-isolated-for-a-year-3625138.phphttp://www.timesunion.com/news/article/Attorney-Terror-suspect-isolated-for-a-year-3625138.php


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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 attacs and paranoia& This paranoia may be

directed against the la!yer& The defendant may thin, 41f my la!yer !as really !oring on my

behalf, !hy am 1 still in solitary confinementI *erhaps my la!yer is !oring 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 defendants

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 ased 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 lie 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


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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 spoen to the defendant

are prohibited from speaing to other people about the conversation 7 including the defendants

o!n la!yer& 1f the defendants family becomes concerned about the defendants 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 spoe, the la!yer can be prosecuted and given a long $ail sentenceI

See %S v. &ynne Ste1artfor 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 . year $ail sentence&-

8& *ost%trial Solitary Confinement 7 Superma9 and C(6sAfter 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 8D, 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 8., inAref et al. v. 4oler et. al.some inmates sue to close the C(6 because it !as


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illegally opened& 1n (arch 8.., 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, mae 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


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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,

Selir )& .8.=/s!do!nsD/#aol&com

=./%@D@%.8
mailto:[email protected]:[email protected]

NCPCF Letter to the Senate Subcommittee Hearings on Solitary Confinement

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Transcript of NCPCF Letter to the Senate Subcommittee Hearings on Solitary Confinement