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Supermax Prison Issues
By Eric Rudolph
In the old days, every prison had what was called the “hole.” This was a part of the prison set aside to segregate problem inmates in solitary confinement for havingcommitted offenses while in prison, such as assaulting guards or other inmates. Usuallyan inmate’s stay in the “hole” was brief, the length of time determined by the type of offense committed. Once his time in the “hole” was up, the inmate was returned to thegeneral population. In more extreme cases, prisoners were kept in these conditions for longer periods. These were death row inmates and incorrigible inmates. This traditionaluse of the “hole” was in keeping with the philosophy that an inmate’s behavior in prisonshould determine the condition of his confinement. It was a rehabilitative approach. If compliant with prison rules, he should have the privilege of living in general population,where he might work, have access to a library, take part in educational programs, andenjoy leisure activities. Conversely, if not compliant with prison rules, he would be putin the “hole” for a period of time. And when hid time was up, he’d be given theopportunity to be in general population again.Then in the 1980s, this country threw out the rehabilitative approach to penologyand decided to permanently warehouse prisoners in solitary confinement. They calledthis new type of prison the “supermax.” Now, in both the state and federal prisonsystems, there are two types of prisons: general population and supermax. In your typicalgeneral population prison, inmates are locked down in their cells for only eight to twelvehours each day. While out of their cells, inmates have the opportunity to work, wherethey can earn a little money to buy stamps, books and pens. They can participate ingroup educational programs, group rehabilitative programs, and group religious services.Inmates have access to the Law Library and to typewriters. There is a large exercise yardand at least some contact with nature in the form of a tree or a field of grass. Visits withloved ones are face-to-face. And inmates can make several phone calls each month. Inshort, the prisoners are afforded some semblance of a life.Supermax is a different animal entirely. The basic setup is for long-term solitaryconfinement. The purpose is to gradually tear a person down mentally and physically,through environmental and physical deprivation. The supermax is in effect one big“hole.” The conditions are just above the minimum requirements for solitaryconfinement: prisoners are locked in their cells for 23 hours a day; one hour of exercise aday for five days a week; no exercise on weekends; no physical contact with other inmates or staff; visits with loved ones are through thick glass; very limited contact withthe outside world. The architecture of supermax is dehumanizing and designed to limitcontact with nature. Staff is encouraged by their superiors to see themselves asinstruments of punishment. The original “hole” was designed as a temporary place of corrective punishment; the supermax is designed to hold inmates in solitary confinementindefinitely.The supermax concept is part of the larger get-tough-on-crime policy this took 
 
starting with the Nixon administration. The cause of the crime problem was liberalismdispensed at the local level. The counter culture, the drug culture, the assault upon thefamily, the growing militancy in the minority ghettos caused crime rates to grow in the1960s. Divorce rates doubled between 1960 and 1974. Illegitimacy rates among blackswent from 23 percent in 1963 to 48 percent in 1980 (James T. Patterson, GrandExpectations, Oxford University Press, 1996, p. 671). The murder rate doubled between1963 and 1970--from 4.6 per 100,000 to 9.2 per 100,000 (New York Times, Oct. 23,1994). Coincident with the explosion in crime, prisons became gladiatorial schoolswhere violent gangs battled one another over drug turf. No longer willing or able to affect the larger cultural trends causing the crime problem, conservatives decided to lock themselves in gated communities and sweep the“riffraff” into prisons. They thought they were going to prosecute and incarcerate their way back to the placid suburbs of the 1950s. They hired more cops, passed new laws,increased sentences, built more prisons, and made prison conditions harsher. Thesupermax was part of this package.The stated purpose of the supermax was to make prisons safer for staff andinmates. Prisons were out of control, they said. Gangs controlled the prison yards. Staff and inmates lived in fear of predatory gangs. What we need, they said, is a special kindof prison in which to put gang members and those inmates who have demonstratedthrough their behavior that they cannot function around staff or other inmates without being a threat. Lock them up and beat them down so the guards and the rest of the prisoners can live in peace, they said. If you listen to the prison administrators, this isstill the party line on supermaxes. In reality, the supermaxes have failed in this missionand become something entirely different. Violence in general population prisons has not been substantially reduced. And the anti-gang system never succeeded, it simplyshattered the gangs into pieces. The gangs are no longer as centralized or as visible asthey once were. But they still control the prison yards, they are just a little more cautious.And those gang members who were locked down in supermaxes have been replaced.And the practice of segregating gang dropouts and check-ins (inmates who have droppedout of a gang or who have been targeted for assault and have therefore checkedthemselves into protective custody) in supermaxes has created a situation where thesetypes of inmates are now represented in supermax prisons. Instead of breaking up gangsand segregating predatory inmates, supermaxes are now housing many of their victims.Even more pernicious, supermaxes have now become mental institutions and political prisons. Instead of spending money on programs for the mentally ill, prisonadministrators now lock them in supermaxes and feed them pills through the door slotthree times a day. And because conditions in a supermax are much more onerous than ina general population prison, the government now uses them to add an extra measure of  punishment for inmates have committed politically motivated offenses.Every prison system in the country has built at least one supermax prison. UnitedStates Penitentiary Administrative Maximum (ADX) at Florence, Colorado is the FederalBureau of Prisons’ supermax. Since the courts have yet to rule these dungeons to be inviolation of the Eighth Amendment’s prohibition against cruel and unusual punishment,
 
which they clearly are, the major issue is the criteria for placing and keeping an inmate insupermax.The inmates argue that because the conditions are so much more harmful insupermax than in a general population prison, administrators ought to have an objectivecause--assaulting a guard, dealing drugs--before they can place you in one. And moreimportant, there ought to be objective standards that an inmate can meet in order to work his way out of supermax and back into general population. On the other side, thegovernment argues that the prisoners are chattel and prison administrators should havethe absolute power to place any inmate wherever they want him, regardless of his behavior and regardless of the conditions in the prison. Administrators insist that thecriteria for placing and keeping an inmate in a supermax remain completely subjectiveand based solely on their “professional judgment as to the inmate’s probable future behavior.”Back in the 1990s an inmate brought a case before the Supreme Court, claimingthat his due process rights were violated as a result of his being sentenced to thirty daysin Disciplinary Segregation (Sandin v. Conner.) The Court ruled that a mere thirty daysin Disciplinary Segregation (DS), where the conditions are the same as in any supermax,was not enough to implicate Sandin’s liberty interests. But the Supremes speculated thatif Sandin had been living in such “atypical” conditions for a long period of time he wouldhave had a liberty interest in avoiding placement in such a segregation unit. And if thatwere the case, then the government had an obligation to provide some form of due process before they could justifiably transfer and keep an inmate in long-termsegregation--what they called Administrative Segregation (AS) as opposed toDisciplinary Segregation. Supermaxes are designed to house inmates under Administrative Segregation long term. How much due process was due to inmates insupermax? The court didn’t say.Then in 2006 a group of inmates housed in Ohio’s notorious supermax were back  before the Supreme Court to get an answer to this question (Wilkinson v. Austin). TheCourt’s answer: not much. Yes, prison administrators had to give inmates due process to place and keep them at Ohio’s supermax, said the Court, but very minimal due processstandards would be sufficient. First, administrators had to give an inmate notification of his impending transfer to the supermax. Second, they had to give him the opportunity tocontest his transfer to supermax. And third, while at supermax he had to be given a“meaningful periodic review” in order to keep him there. At the review, the inmate couldagain contest his placement in the supermax. But here was the rub--the Supremes left itto the prison administrators to decide the criteria for placing and keeping an inmate in asupermax. Put simple, an inmate can keep a clean record in general population for decades, but if the warden decides one day to transfer him to a supermax, he’ll be on a bus in a few days. And even if he should turn into Mother Theresa while he is atsupermax, the warden can still keep him there indefinitely. The “meaningful periodicreviews” every six months are mere formalities. The due process standards violate everystandard of due process.
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