Amicus Curiae Brief — Wilkinson v. Austin

ree Onn

No. 04-495 , Pawel és

OFFIGEOFTHEC!S?<

IN THE

Supreme Court of the United States

REGINALD A. WILKINSON, DIRECTOR, OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION, ET AL.,

Petitioners,

Vv.

CHARLES E. AUSTIN, ET AL.,

Respondents

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

HUMAN RIGHTS WATCH, AMERICAN FRIENDS

SERVICE COMMITTEE, BLUHM LEGAL CLINIC,

THE CENTER FOR JUSTICE IN CAPITAL CASES,

ILLINOIS ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, AND NATIONAL LAWYERS GUILD

IN SUPPORT OF RESPONDENTS

JAMIE FELLNER GEOFFREY F. ARONOW

Human Rights Watch Counsel of Record

350 Fifth Avenue KATHLEEN BENWAY

34th Floor ALEX S. GORDON

New York, NY 10118 Heller Ehrman White &

(212) 612-4700 McAuliffe LLP

1717 Rhode Island Ave., NW

Washington, DC 20036

(202) 912-2000

Counsel for Amici Curiae

(Additional Counsel Listed Inside Front Cover)

mereer=os==T BEST AVAILABLE COPY

ADDITIONAL COUNSEL FOR AMICi U URIAE:

MOLLY WIESER

American Friends Service Committee

915 Salem Avenue

Dayton, OH 45406

(937) 278-4225

THOMAS F, GERAGHTY

Bluhm Legal Clinic

Northwestern University School of Law

357 E. Chicago Avenue

Chicago, IL 60611

(312) 503-8576

ANDREA D. LYON

The Center for Justice in Capital Cases

DePaul College of Law

25 E. Jackson Bivd.

Chicago, IL 60604

(312) 362-8402

Illinois Association of Criminal Defense Lawvers

P.O. Box 2864

Chicago, IL 60690-2864

(773) 643-4225

PAUL WRIGHT

National Lawyers Guild

143 Madison Avenue

New York, NY 10016

(212) 679-5100

pete ea —

IV.

i

TABLE OF CONTENTS

The Use Of Supermaximum Security Confinement

For Prolonged, Indefinite Periods Through

Administrative Assignment Exposes Prisoners To

Harsh, Atypical Dehumanizing Conditions. .............. 7

A. The Use Of "Supermax" Facilities Has

Dramatically Expanded Over The Last Two

EES St 7

B. The Typical Conditions Of "Supermax"

Confinement Are Severe And Prolonged....... )

Prolonged "Supermax" Confinement Produces

Significant Adverse Psychological Consequences For

EEE 12

Under These Circumstances, The Constitutional

Principles Of Due Process Require At A Minimum

The Procedural Protections That The Courts Below

Properly Found Lacking In The Ohio State

ET ee 16

Procedural Safeguards Are Required To Protect The

Internationally Recognized Human Rights Of

SSE SS 19

A. Principles Of International Law Properly

Inform And Illuminate American

Constitutional Jurisprudence. ....................... 19

il

B. "Supermax" Facilities Raise Serious Human

Rights COMCEMS. ........-...--secseeeeereersnenernenenes 21

sd Human Rights Experts Agree That Extensive

Procedural Protections Are Essential And

Must Accompany Assignment To banana”

PeTRAID, ccccccccccssscescssccssnsssecessrssosesescsunseneee

l. The United Nations Committee

Against Torture And The European

Committee For The Prevention Of

Torture And Inhuman Or Degrading

Treatment Or Punishment ................ 22

2. International Human Rights

Organizations ..............-0cceeereereenneneees 25

COICO ILILIBIOIN .ccccocccecsecccsscecorscseserscessocvescssoncssssoonssesonscosseses 29

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .0........c.cececceeeceseneeees 20

Austin v. Wilkinson, 189 F. Supp. 2d 719

ee I cciniascisindicndiniiieptlinsithaiatintdieanbiaticenen 18

Coker v. Georgia, 433 U.S. 584 (1977) .........ccccccccceeeeeeeeeeene 20

Edmund v. Florida, 458 U.S. 782 (1982)..............ccccccc0eeceees 20

Jones El v. Berge, 164 F. Supp. 2d 1096

SE SI ccticnccialtindiniectictiscttantnantiabhiain 9-10, 14

Lawrence v. Texas, 539 U.S. 558 (2003) .0.........cccccceccceeeeeees 20

Madrid v. Gomez, 889 F. Supp. 1146

SRR SN Ee ee passim

Mathews v. Eldridge, 424 U.S. 319 (1976)............0..... 6, 7,18

Morrisey v. Brewer, 408 U.S. 471 (1972) ..000...ccccccccccccceceeeeeee 6

Roper v. Simmons, No. 03-633, 2005 U.S. Lexis 2200

RBI Eng CR IR A aU 20

Ruiz v. Johnson, 154 F. Supp. 2d 975

ee MEN MIE cutrinisthincsintietitcsnnenihicedicanpiniada 11, 14-15

Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999)........ 13

Sandin v. Conner, 515 U.S. 472 (1995) .000.0.....ccccccccee. 5, 6, 18

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004).......... 19-20

Thompson v. Oklahoma, 487 U.S>815 (1988)..................... 20

IV

Other Authorities

Amnesty International, Open Letter to the President of the

United States from Amnesty International Following

Hearings Held by the United Nations Committee

against Torture (June 22, 2000).............cccccceceeeeeeees 28

Amnesty International, USA: A Briefing for the UN

Committee against Torture (2000)...................-. 18, 27

Amnesty International's Recommendations to the United

States Government to Address Human Rights

‘iolations in the USA (August 1, 1998).............. 26-27

Chase Riveland, U.S. Dep’t of Justice, Supermax Prisons:

Overview and General Considerations (1999)11, 18, 19

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment Or Punishment, G.A. res.

39/46, December 10, 1984.00... cccceseeeeeeeeeeees 21-22

Craig Haney & Mona Lynch, Regulating Prisons of the

Future: A Psychological Analysis of Supermax and

Solitary Confinement, 23 N.Y.U. Rev. L. & Soc.

Cent SF CO eR ercscceenesesenessctnccmnenenantisens 13, 14,17

Craig Haney, “/nfamous Punishment”: The Psychological

Consequences of Isolation, The National Prison

Project Journal, Vol. 8 No. 2 (Spring 1993)........ 9,15

Craig Haney, Mental Health Issues in Long-Term Solitary

and “Supermax” Confinement, 491) Crime &

Ratieat,. 096 CITED cccccescccenvescsersetsscvcnsessssscsssevene passim

Craig Haney, The Psychological Impact of Incarceration:

Implications for Post-Prison Adjustment, Working

Paper for From Prison to Home

SI 5 ctinicnnaticspsensitioaadanpetinieanis 12

Vv

European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment

(CPT) CPT Standards, Substantive Sections of the

CPT’s General Report CPT/INVE

I III HII cick cei tetiilisibimrecniainis scenes 23, 24-25

European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment,

Report to the Finnish Government on the visit to

Finland, from 10 to 20 May 1992 (1993)........00....... 25

European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment,

Report to the Portuguese Government on the visit to

Portugal, from 14 to 26 May 1995 (1996) ...00.00....... 24

European Convention for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment,

Historical Background and Main Features of the

RIE N IIIT cticicceticadenersiacehdilintecnieambineiass 22, 23

Human Rights Watch, Cold Storage: Super-Maximum

Security Confinement in Indiana (1997)........... passim

Human Rights Watch, Human Rights Violations in the United

States: Red Onion State Prison, Super-Maximum

Security Confinement in Virginia (1999)........... 10, 17

Human Rights Watch, /// Equipped: U.S. Prisoners and

Offenders With Mental Iliness (2003)............... passim

Human Rights Watch, Out of Sight: Briefing Paper on

Supermax Prisons (2000) .............ccccccccceeeeseeeeeee passim

International Covenant on Civil and Political Rights, , G.A.

res. 2200A (XXI), December 16, 1966.................... 21

vi

Leena Kurki & Norval Morris, The Purposes, Practices, and

Problems of Supermax Prisons, 28 Crime & Just. 385

CBDDA) ....errerseorsceseserseressorensescnscensesessensosesnssscseseeess 8,17

United Nations Office of the High Commissioner for Human

Rights, Consideration of Reports Submitted by State

Parties Under Article 19 of the Convention,

Conclusions and Recommendations of the Committee

against Torture: United States of America

(May 15, 2000)............ccccsessesessssenenennsnsreneeseennernenens 23

Universal Declaration of Human Rights,

G.A. res. 217A (III), December 10, 1948 .............+. 21

U.S. Dep't. of Justice, Supermax Housing: A Survey of

Current Practice (1997).........ccc0cccccceeeeesreesennneeendones 7

William Collins, U.S. Dep’t of Justice, Supermax Prisons

and the Constitution: Liability Concerns in the |

Extended Control Unit (2004).............:.:00000 passim

INTEREST OF AMICI CURIAE'

Human Rights Watch is a non-profit organization

established in 1978 that investigates and reports on

violations of fundamental human rights in over 70 countries

worldwide, with the goal of securing the respect of these

rights for all persons. It is the largest international human

rights organization based in the United States. By exposing

and calling attention to human rights abuses committed by

State and non-state actors, Human Rights Watch seeks to

bring international public opinion to bear upon offending

governments and others and thus bring pressure on them to

end abusive practices. In the United States, Human Rights

Watch has addressed a range of human rights issues,

including U.S. prison condition.. Human Rights Watch has

filed amicus briefs before various bodies, including U.S.

courts and international tribunals. The proliferation of

supermaximum security facilities in which prisoners endure

harsh conditions for prolonged periods of time has been a

particular concern of Human Rights Watch and the subject of

several Human Rights Watch reports. Because the Court's

decision in this case will affect the due process rights not

only of prisoners in the Ohio State Penitentiary ("OSP"), but

also any prisoner that is “administratively” assigned to a

supermaximum or "supermax" facility, Human Rights Watch

has a subsiantial interest in the question presented.

The American Friends Service Committee ("AFSC")

is a non-profit organization which carries out service,

development, social justice, and peace programs throughout

' This brief is filed with the written consent of all parties.

No counsel for a party authored this brief in whole or in part,

nor did any person or entity, other than amici or their

counsel, make any monetary contribution to the preparation

or submission of this brief.

2

the world. Founded by Quakers in 1917, AFSC's work is

based on the Quaker belief in the worth of every person and

faith in the power of love to overcome violence and

injustice. Quakers have long played a role in human nights

and criminal justice, having been heavily represented among

the founders of what AFSC now regards as a failed

experiment in institutionalization called the penitentiary.

These institutions were initially comprised of isolation units

which are the predecessors of today’s "supermax" prisons.

AFSC founded and still operates its PrisonWatch program to

monitor the inhumane conditions in isolation units

nationally, has published a variety of reports and histories

regarding control or isolation units, and its staff members

have testified widely on the issue. In 1985, AFSC published

"The Lessons of Marion," which sounded the alarm about the

impending future of contemporary control units. In 1997,

AFSC published a "Survivor’s Manual," written by prisoners

living in extended isolation for other prisoners who faced the

same situation. AFSC has identified abolition of isolation

unit confinement as one of two national criminal justice

reform priorities to be addressed in the coming years.

Founded in 1969, the faculty and students of the

Bluhm Legal Clinic at Northwestern University School of

Law represent clients in a variety of juvenile and criminal

proceedings, including criminal appeals and post-conviction

proceedings involving clients who are incarcerated in Illinois

prisons. The Bluhm Legal Clinic's work on behalf of

prisoners awaiting execution and prisoners who have been

wrongfully convicted has led its faculty and students to

become increasingly concerned about the conditions of

confinement in prisons in Illinois and around the country,

particularly in “supermax" facilities such as Illinois’ Tamms

Correctional Center, a "supermax" prison in southern

Illinois. The decision rendered by the Supreme Court in this

case will necessarily affect conditions of confinement for

many of the Bluhm Legal Clinic's clients for years to come.

3

The Center for Justice In Capital Cases at the DePaul

University College of Law was created to train all of the

capital defense team -- lawyers, defense investigators and

Mitigation specialists, as well as law students who have the

opportunity to work on capital cases in the Death Penalty

Legal Clinic. Its mission is to create a higher standard of

practice in the capital arena through vigorous advocacy and

investigation, cutting-edge work in the social sciences, and a

client-centered philosophy.

The Illinois Association of Criminal Defense

Lawyers is the only statewide criminal defense lawyer's

organization in Illinois. It represents both the public and

private sectors of the criminal defense bar. It is a

not-for-profit organization that retains complete

independence from outside funding sources by being

supported solely by its members. Its goal is to achieve

justice and dignity throughout the criminal justice system by

fostering, maintaining, and encouraging the integrity,

independence, and expertise of lawyers in the field of

criminal defense. Its purpose is to inform members by

providing resources via committees, continuing education

seminars, and current legislative decisions, as well as to

advocate on behalf of the criminal justice system by

presenting views and cases before state and federal

legislative bodies, and by assisting in the writing of amici

curiae briefs.

-

The National Lawyers Guild ("NLG") is a national

association of legal professionals, law students and jailhouse

lawyers with offices in New York City. The NLG was

founded in 1937 as the first inter-racial bar association in the

United States. Throughout its history, NLG members have

represented literally thousands of prisoners and have

advocated on behalf of the Due Process, First Amendment

and other rights of incarcerated people. The NLG national

executive committee includes two vice-presidents who are

jailhouse lawyers and has a number of members who are

4

jailhouse lawyers. NLG members represented the interests

of prisoners injured or killed in Attica, New York in over

thirty years of litigation. The issues raised by the instant

appeal concerning the due process rights of prisoners who

are “administratively” assigned to a supermaximum facility

are of vital concern to NLG members and their clients.

SUMMARY OF ARGUMENT

The conditions inmates endure in supermaximum

security confinement in the United States are the most

harrowing and dehumanizing that courts have found

permissible under the Constitution. 2 Prolonged round-the-

clock confinement in small, sometimes windowless cells

with little or no opportunity for social interaction, mental

stimulation or recreational activities, pushes "the outer

bounds of what most humans can psychologically tolerate

...." Madrid v. Gomez, 889 F.Supp. 1146, 1267 (N.D. Cal.

1995), mandamus denied, 103 F.3d 828 (9th Cir. 1996), cert.

denied, 520 U.S. 1230 (1997). Courts throughout the

country have recognized what numerous studies of and

clinical visits to "supermax" facilities have documented: The

debasing conditions in which prisoners live result in myriad

psychological effects, including anxiety, chronic depression,

emotional breakdowns, suicidal thoughts and behavior,

paranoia, uncontrollable anger, hallucinations, and

hypertension. For those who are mentally ill, being

subjected to such conditions has even more perilous

consequences, with many inmates suffering dramatic

psychological deterioration necessitating hospitalization.

2 The Amici submitting this brief do not believe that the

conditions of “supermax" confinement, discussed below,

should be properly found to pass muster under the Eight

Amendment. However, that issue is not before the Court in

the instant case.

5

No inmate should be subjected to such conditions for

months, much less years, without an extremely careful,

objective and informed determination that such confinement

1s necessary because of the specific security and safety risks

posed by the individual. Indeed, beyond our borders,

international human rights principles reinforce that

conclusion. International human rights standards as applied

are recognized to limit severely the use of such facilities. To

the extent supermaximum conditions are to be permitted at

all, their use must be carefully circumscribed to

circumstances and for durations that are thoroughly justified.

Yet, the record of the process of assignment to

supermaximum security confinement demonstrates

something quite different. Research and litigation have

documented that the use of these facilities are not limited to

"the worst of the worst," but that correctional systems all too

frequently place inmates in "supermax" facilities arbitrarily,

carelessly, and unnecessarily.

Although incarceration necessitates a surrender of

many nights and privileges, "prisoners do not shed all

constitutional rights at the prison gate ...." Sandin v.

Connor, 515 U.S. 472, 485 (1995). This principle applies in

full force to the consideration of rights under the Due

Process Clause applicable to the assignment to and continued

retention in so-called "“supermax" confinement. The

procedural protections of due process recognized by the

courts below in this case are the minimum constitutional

safeguards essential to ensure that these dangerous,

dehumanizing facilities be used only where and when the

facts are consistent with the justifications for their use. The

deprivations are too severe and the adverse psychological

toll too great to require anything less than robust procedural

protections to ensure that the decisionmakers get it right.

6

ARGUMENT

This Court has long recognized that "[p]rocedural due

process imposes constraints on governmental decisions

which deprive individuals of ‘liberty’ or ‘property’ interests

within the meaning of the Due Process Clause of the Fifth or

Fourteenth Amendment." Mathews v. Eldridge, 424 U.S.

319, 332 (1976). Due process is a flexible concept "and calls

for such procedural protections as the particular situation

demands." /d. at 334 (quoting Morrissey v. Brewer, 408

U.S. 471, 481 (1972))" A state-created liberty interest,

protected by the Due Process Clause, arises in the prison

context when the circumstance at issue "imposes atypical

and significant hardship on the inmate in relation to the

ordinary incidents of prison life." Sandin, 515 U.S. at 484.

At minimum, the facilities at issue here impose such

hardships and deprivations. As discussed below, the extreme

conditions and the dangers posed to the inmates subjected to

them demand the highest level of procedural protection

> In Mathews, this Court articulated the now-familiar

tripartite test for procedural due process:

First, the private interest that will be affected

by the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value,

if any, of additional or substitute procedural

safeguards; and finally, the Government's

interest, including the function involved and

the fiscal and administrative burdens that the

additional or substitute —_ procedural

requirement would entail.

424 US. at 335.

7

possible to ensure that the use of these facilities is properly

limited to those whom require this form of confinement

under the justifications for its use. See Mathews, 424 U.S. at

341 ("[T]he degree of potential deprivation that may be

created by a particular decision is a factor to be considered in

assessing the validity of any administrative decisionmaking

process").

I. The Use Of Supermaximum Security Confinement

For Prolonged, Indefinite Periods Through

Administrative Assignment Exposes Prisoners To

Harsh, Atypical Dehumanizing Conditions.

A. The Use Of "Supermax" Facilities Has

Dramatically Expanded Over The Last

Two Decades.

Prison systems in the United States have long had

"prisons within prisons" -- harsh solitary confinement cells to

which prisoners are sent for breaking the rules. Over the last

two decades, however, U.S. correctional systems have

developed a new generation of super-maximum security

units and facilities in which prisoners deemed dangerous or

disruptive can be housed indefinitely. More than 20,000

prisoners are now confined under "supermax" conditions, as

* “Supermax" facilities are also known, inter alia, as special

housing units or security housing units (SHUs) and extended

control units (ECUs). The National Institute of Corrections

defines "supermax" housing as "a free standing facility or

distinct unit within a facility that provides for the

management and secure contro] of inmates who have been

officially designated as exhibiting violent or serious and

disruptive behavior while incarcerated." U.S. Dep’t of

Justice, Supermax Housing: A Survey of Current Practice at

1 (1997), available at http://www.nicic.org/pubs/1997/013

722.pdf.

8

corrections officials have considered them a_ useful

management tool for maintaining control over and

responding to tension and violence in their facilities. See

Human Rights Watch, Out of Sight: Briefing Paper on

Supermax Prisons (2000), available at

http://www.hrw.org/reports/2000/supermax/.” Although in

1984 there existed only one prison in the United States that

would today be classified as a “supermax" prison, today 36

states and the federal government currently operate a total of

at least 57 supermaximum security units, built either as

annexes within existing prisons or as free-standing facilities.

See Human Rights Watch, Cold Storage: Super-Maximum

Security Confinement in Indiana (1997), available at

http://www. hrw.org/reports/1997/usind/ ‘

* Out of Sight draws on extensive research by Human Rights

Watch on the conditions and operations of supermaximum

security facilities in the United States. Human Rights Watch

has inspected eight state and federal "supermax" facilities

and reviewed extensive documentation on numerous others.

° In almost every state in the United States, exploding prison

populations and overstretched budgets have overwhelmed

the ability of corrections professionals to operate safe, secure

and humane facilities with adequate numbers of properly

trained staff and sufficient programs and productive

activities for the men and women in their custody.

Corrections officials have turned to supermaximum security

units to remove dangerous or disruptive prisoners from the

general populations as an alternative method to protect both

staff and inmates and, it is hoped, deter other prisoners from

committing acts that might result in their transfer to such

harsh facilities. See Cold Storage, supra; Leena Kurki &

Norval Morris, The Purposes, Practices, and Problems of

Supermax Prisons, 28 Crime & Just. 385, 391 (2001).

9

B. The Typical Conditions Of "Supermax"

Confinement Are Severe And Prolonged.

Although conditions and policies vary somewhat

from facility to facility, the common characteristics of

"supermax" confinement include extreme social isolation:

reduced environmental stimulus; scant recreational,

vocational, or educational opportunities; and extraordinary

levels of surveillance and control. They are undeniably

harsh and atypical.

Prisoners spend all their waking and sleeping hours

locked alone in small, sometimes windowless cells. The

cells, measuring 60- to 80-square feet, typically contain a

concrete slab with a thin mattress for a bed, a concrete shelf

to serve as a desk, and a toilet and sink combination. The

cell door is made of perforated or solid steel with a small

fixed window and a slot at the bottom. Prisoners are fed in

their cells, their food passed to them on trays through the slot

in the door. See Human Rights Watch, //] Equipped: U.S.

Prisoners and Offenders With Mental Iliness at 146 (2003),

available at http://www.hrw.org/reports/2003/usa1003/;

Craig Haney, “Jnfamous Punishment": The Psychological

Consequences of Isolation, The National Prison Project

Journal, Vol. 8 No. 2 at 4 (Spring 1993). Lighting in the

cells often remains illuminated all day and night. See

Wilham Collins, U.S. Dep't of Justice, Supermax Prisons

and the Constitution: Liability Concerns in the Extended

Control Unit at 7 (2004), available at

http://www.nicic.org/pubs/2004/019835.pdf; Jones'El _ v.

Berge, 164 F.Supp. 2d 1096, 1100 (W.D. Wisc. 2001). Cells

may be ventilated but not air conditioned, and inmates have

no way to regulate the temperature. See Cold Storage, -

supra, see also Jones'El, 164 F.Supp. 2d at 1100 (noting

that during summertime, average cell temperature can reach

92 degrees and heat index goes above 100 degrees); Collins,

supra, at 7. During wintertime, "the cell temperature drops

<

10

to uncomfortable lows.” Jones'El, 164 F.Supp. 2d at 1100;

see also Cold Storage, supra.

A few times a week, prisoners are let out for showers

and an hour or less of solitary exercise in a small, enclosed

space, “in caged-in or cement-walled areas that may be

devoid of any equipment and are so constraining they are

often referred to as ‘dog runs." Craig Haney, Mental Health

Issues in Long-Term Solitary and "Supermax" Confinement,

4%1) Crime & Deling. 124, 126 (2003); see also Ill

Equipped, supra, at 146; Collins, supra, at 7. When

prisoners are allowed to leave their cells, they are first

chained through the door slot while still inside. See Cold

Storage, supra. They are commonly subjected to strip

searches whenever leaving or returning to the housing block.

See Collins, supra, at 7; Madrid, 889 F.Supp. at 1229.

Inmates have no access to out-of-cell work, religious

activity, rehabilitation, or other programs or activities to

occupy time -- such that "[a]lmost complete idleness is the

norm." Collins, supra, at 6 (noting that "[ajny available

programs are usually offered in the cell or cell front"). At

the Pelican Bay SHU in California, “some inmates spend the

time simply pacing around the edges of the pen; the image

created is hauntingly similar to that of caged felines pacing

in a 200." Madrid, 889 F.Supp. at 1229. Telephone and

visitation privileges’ are extremely limited. See, e.g.,

Jones'El, 164 F.Supp. 2d at 1101 (inmates at Wisconsin

“supermax" allowed only one six-minute telephone call per

month). Visits are non-contact, with the inmates separated

from the visitor by a large piece of plexiglass. See Human

Rights Watch, Human Rights Violations in the United States:

Red Onion State Prison, Super-Maximum Security

Confinement in Virginia (1999), available at

http://www.hrw.org/reports/ 1999/redonion/. The dearth,

and often absence, of simple human contact in “supermax"

confinement is stark:

1]

In the typical facility, cell doors, unit

doors, and shower doors are operated

remotely from a control center. Physical

contact may be limited to being touched

through a security door by a corrections

officer while being placed in restraints or

having restraints removed. The bulk of

verbal communication may occur through

intercom systems. Further minimalization

of human contact may result from the use

of technologies such as cameras; remote

listening devices; and remote control

devices for televisions, water and lights.

Chase Riveland, U.S. Dep’t of Justice, Supermax

Prisons: Overview and General Considerations at 11 (1999),

available at http://www.nicic.org/pubs/1999/ 014937.pdf.

In sum, prisoners in “supermax" facilities “are

completely deprived of . . . personal contact, and mental

stimulus." Ruiz v. Johnson, 154 F.Supp. 2d 975, 985 (S.D.

Tex. 2001). Indeed, because of the advanced modem

technology in this environment, “prisoners experience levels

of isolation and behavioral control that are more total and

complete and literally dehumanized than has been possible in

the past." Haney, Mental Health Issues, supra, at 127.’

’ In some facilities, months of good behavior may lead to

increased privileges -- e.g., an increase in the number of

photographs an inmate can keep in his cell, or access to an

in-cell radio -- but those privileges can be and often are

eliminated if the inmate commits an infraction, e.g., is

disrespectful to an officer. See Out of Sight, supra. \n any

event, the privileges reflect only a tinkering at the edges of

the basic model of solitary confinement and do not

significantly ameliorate the conditions. See id.

12

Unlike assignment into such facilities that results

from disciplinary action, which generally lasts for a fixed

term, administrative segregation of the type at issue in this

litigation can, and often does, continue indefinitely until the

correction authorities unilaterally decide to release the

prisoner back to the general prison population. Some

prisoners may serve most, if not all, of their prison terms in

isolation. See Haney, Mental Health Issues, supra, at 127.

As a report published by the National Institute of Corrections

("NIC") acknowledges, once placed in “supermax"

confinement, an inmate "is likely to remain there for at least

12-24 months, if not longer." Collins, supra, at 6.

Il. Prolonged “Supermax" Confinement Produces

Significant Adverse Psychological Consequences

For Prisoners.

There is no way to measure the misery and suffering

produced by prolonged confinement under these conditions.

Inmates have described life in a “supermax" facility as akin

to living in "a tomb." /// Equipped, supra, at 150. For many

prisoners, the absence of normal social interaction,

reasonable mental stimulus and exposure to the natural world

-- of almost everything that makes life human and bearable --

is emotionally, physically and psychologically destructive.

See id.

The adverse psychological effects of extended

detention in “supermax" facilities can be as severe as they

are abundant. “Supermax" facilities create their "own set of

psychological pressures" so powerful that "there are few if

any forms of imprisonment that produce so many indices of

psychological trauma and symptoms of psychopathology in

those persons subjected to it." Craig Haney, The

Psychological Impact of Incarceration: Implications for

Post-Prison Adjustment, Working Paper for From Prison to

Home Conference at 14 (2001), available at

http://www.aspe.hhs.gov/hsp/prison2home02/Haney.htm.

These adverse effects include anxiety, chronic depression,

cad

13

emotional breakdowns, suicidal thoughts and _ behavior,

paranoia, uncontrollable anger, hallucinations, and

hypertension. See Haney, Mental Health Issues, supra, at

130-32. Indeed, many of the psychological effects of this

form of confinement "are analogous to the acute reactions of

trauma victims, and the psychiatric sequelae fit the common

diagnostic criteria for victims of deprivation and constraint

torture techniques." Craig Haney & Mona _ Lynch,

Regulating Prisons of the Future: A Psychological Analysis

of Supermax and Solitary Confinement, 23 N.Y .U. Rev. L. &

Soc. Change 477, 530 (1997).

Every published study of non-voluntary “supermax"-

like confinement lasting longer than 10 days has reported

“negative psychological effects." Haney, Mental Health

Issues, supra, at 132. For instance, Dr. Haney* conducted

research at the Pelican Bay SHU, consisting of personal

interviews with a random sample of 100 SHU prisoners.” He

found notably high levels, inter alia, of anxiety (91 percent),

irrational anger (88 percent), chronic depression (77

percent), emotional swings (71 percent), impending nervous

breakdown (70 percent), talking to self (63 percent), and

* Craig Haney, Ph.D., J.D. specializes in the assessment of

individual adjustment to and the psychological effects of

incarceration. He has been recognized as “perhaps the

nation’s leading expert in the area of penal institution

psychology." Ruiz v. Johnson, 37 F. Supp. 2d 855, 908-09

(S.D. Tex 1999), | .

* The Pelican Bay SHU was the subject of the litigation in

Madrid, 889 F.Supp. at 1231-32, where the court noted that

prison confinement could have a deleterious impact on the

mental state of prisoners. ("{T]}he Court is well satisfied that

a severe reduction in environmental stimulation and social

isolation can have serious psychiatric consequences .. . .").

\a

violent fantasies (61 percent). See id. at 133-34. Ata Texas

“supermax" facility, "[e]xperts reported that incidents of self-

mutilation and incessant babbling and shrieking were almost

daily events." Ruiz, 154 F.Supp. 2d at 985.

Prisoners with preexisting psychiatric disorders are at

even greater risk of suffering psychological deterioration

from prolonged "supermax" confinement. The stresses,

social isolation and restrictions of such confinement can

exacerbate their illnesses or provoke reoccurrences.

According to psychiatrist Dr. Terry Kupers, the conditions

can cause someone with a vulnerability to psychosis "to go

off the deep end." /// Equipped, supra, at 152. A federal

district judge trenchantly observed that placing mentally ill

or psychologically vulnerable people in “supermax"

conditions "is the mental equivalent of putting an asthmatic

in a place with little air to breathe." Madrid, 889 F. Supp. at

1265; see also Haney & Lynch, supra, at 534 ("pre-existing

psychiatric disorders among segregated prisoners may render

them more vulnerable to the psychological assaults of

solitary confinement").

As another court has observed, “extremely isolating

conditions in supermaximum confinement cause" symptoms

such as paranoid delusional disorder, dissociative disorder,

schizophrenia and panic disorder

in relatively healthy prisoners who have no

histories of serious mental illness, as well as

prisoners who have never suffered a

breakdown in the past but are prone to break

down when the stress and trauma become

exceptionally sevére. Many prisoners are

not capable of maintaining their sanity in

such an extreme and stressful environment;

a high number attempt suicide.

Jones'El, 164 F.Supp. 2d at 1101-02; see also Ruiz, 154

F.Supp. 2d at 984 (finding that Texas "supermax” units "are

15

virtual incubators of psychoses -- seeding illness in

otherwise healthy inmates and exacerbating illness in those

already suffering from mental infirmities").

The threat that these facilities pose, particularly to

those already prone to mental disorders, is a serious one,

because the risk that mentally ill prisoners will end up in

supermaximum security units is great. Corrections officials

frequently place mentally ill inmates in "supermax"

confinement because they lack other housing options, such

as secure mental health treatment units or segregation units

specifically designed for mentally ill offenders. Moreover,

persons with mental illness often have difficulty complying

with strict prison rules and controlling their behavior. As a

result, the mentally ill are disproportionately represented

among prisoners in "supermax" units or facilities. See ///

Equipped, supra, at 147-48.

As the NIC has itself recognized, "[t}he very

environment that offers the security and control appropriate

for dealing with the type of behavior such inmates exhibit

may make their mental condition worse." Collins, supra, at

16. These findings, as the NIC has acknowledged, "virtually

compel the conclusions that corrections departments need

effective screening procedures to prevent certain inmates

from ever entering the ECU." /d. at 18.

The need for careful procedures to prevent the

imposition of these horrific dangers on those for whom it is

unjustified is not limited to those who already suffer from

mental disabilities. After completing a study of the effects of

confinement on prisoners at Pelican Bay, Dr. Haney

concluded that although prisoners who entered the prison

with preexisting mental health problems suffer more acutely,

"[t}his kind of environment is capable of creating clinical

symptoms in even healthy personalities, and can be

psychologically destructive to anyone who enters and

endures it for significant periods of time." Haney, /nfamous

Punishment at 6; see also Madrid, 889 F. Supp. at 1267

16

(conditions at Pelican Bay "press the outer bounds of what

most humans can psychologically tolerate. . . .").

il. Under These Circumstances, The Constitutional

Principles Of Due Process Require At A Minimum

The Procedural Protections That The Courts

Below Properly Found Lacking In The Ohio State

Penitentiary.

Corrections officials justify the extreme deprivations

of "supermax" confinement as necessary to confine inmates

so dangerous and disruptive that they cannot be safely

confined in general population. See Cold Storage, supra.

These inmates are supposed to be the "worst of the worst" of

prisoners. Collins, supra, at 6.

Corrections authorities must be able to

exercise discretion and __ professional

judgment in choosing where to confine

inmates, but the exercise of such discretion

carries the inherent risk of arbitrariness or

error. Because of the extreme nature of

supermax conditions, particular precautions

are needed to minimize those risks and to

ensure that no inmate is sent to, nor kept

unnecessarily in, supermax confinement.

Out of Sight, supra. \n practice, few correctional systems

have adequate internal review systems to provide a check on

unnecessary "supermax" confinement. Some jurisdictions do

not provide inmates with a hearing, or if hearings are

provided, they are meaningless formalities. See id. An NIC

survey of prison systems revealed that the percentage of

prisoners housed in “supermax" facilities varies greatly,

ranging from less than one percent in some states to more

than 20 percent in others -- “rais[ing] the question of whether

some jurisdictions may be overclassifying inmates into very

expensive prison beds." Collins, supra, at 6.

a

ee ee er

17

With empty. beds in "supermax" facilities and

overcrowding elsewhere, corrections systems face

overwhelming temptations to send inmates there whose

disciplinary histories do not demonstrate the need for such

stringent conditions -- ¢.g. inmates who are nuisances. See

Cold Storage, supra; Red Onion State Prison, supra; Kurki

& Morris, supra, at 385, 389, 392. Particularly problematic

is the fact that "many prisoners are placed in supermax not

specifically for what they have done but rather on the basis

of who someone in authority has judged them to be (e.g.,

‘dangerous,’ 'a threat,’ or a member of a ‘disruptive’ group).”

Haney, Mental Health Issues, supra, at 127.'" As a result,

"[ajdministrative segregation ofien amounts to a kind of

correctional 'no man's land’ in which prisoners are kept

segregated and often isolated for reasons of administrative

discretion and sometimes mere convenience or unspecified

punitive purposes." Haney & Lynch, supra, at 561 n.429.

Use of "broad assignment criteria" creates the very

real danger that, unchecked by procedural safeguards

designed to ensure decisionmakers have as complete a record

before them as possible, assignments will be made in order

to fill "supermax" facilities, "rather than providing

safeguards against arbitrary and unnecessary admissions, as

was their original purpose."'' Kurki & Morris at 389, 392.

'° Such Common admission criteria include gang activity or

disruption of orderly prison operation. See Kurki & Morris,

supra, at 389. '

'' Even with procedural protections, many correctional

authorities use overly broad and vague criteria for

determining supermax eligibility and fail to exercise

appropriate control over placement decisions. As a result,

inmates across the country have been placed in "supermax"

facilities even where such conditions are excessive in light of

(Footnote continued)

18

The district court in the instant case found this very

problem present in the Ohio system: Because of the

temptation to fill the "surplus" of "supermax" units, "Ohio

risks having a ‘because we have built it, they will come’ mind

set." Austin v. Wilkinson, 189 F.Supp. 2d 719, 724 (N.D.

Ohio 2002). Consequently, prison administrators "consider

inmates for placement [in 'supermax'] who do not need its

level of restrictions.” /d.; see also Cold Storage, supra.

The NIC has acknowledged that "the extraordinarily

high levels of security in ['supermax' facilities] -- and the

restrictions that go with that security -- mean that these

facilities sometimes function at the limits of what is

constitutionally acceptable." Collins, supra, at xv. For this

reason, among others, an NIC report has endorsed the idea of

"limiting the use of extended control housing to inmates who

present a ‘clear and present danger.” Riveland, supra, at 6.

As the NIC implicitly acknowledged, decisions to

place an inmate in “supermax" facilities are not just routine

"housing" decisions. The extreme deprivations and the grave

psychological impact of “supermax" on many prisoners

constitute an “atypical and significant hardship" as

envisioned under Sandin -- “the risk of an erroneous

deprivation ...." of the liberty interest in avoiding

confinement there could not be greater. Mathews, 424 U.S.

at 335; see also Collins, supra, at 51 ("It is not surprising

their behavior. See Out of Sight, supra. Indeed, inmates are

assigned to "supermax" confinement for relatively minor

disciplinary infractions, such as verbally insulting a guard,

throwing water at (and missing) a guard, or covering up cell

windows while washing. See Amnesty International, USA: A

Briefing for the UN Committee against Torture at 23 n.45

(2000), available at

http://web.amnesty.org/library/index/engamr5 10562000.

ee a re

19

that courts would regard ECU placement -- with its typically

long duration, very strict conditions, and limited privileges --

as an atypical deprivation, compared to the ordinary

conditions of prison life").

Under such circumstances, a fair and thorough

procedural mechanism for evaluating prisoners is the only

means to guarantee that assignment to "supermax" is proper

and properly limited in duration. See Collins, supra, at 51

("placement process that includes due process procedures . . .

furthers the . . . goal of basing ECU placements on reliable

information and sound judgment"); Riveland, supra, at 2

("Caution in expanding the types and number of inmates

placed in these facilities will serve all parties well.").

The need for the decisionmaker to make a

"predictive" decision does not change the importance of an

accurate factual predicate on which the decisionmaker will

act. The danger of exposing prisoners to the grueling

conditions of "supermax" confinement for extended periods,

functioning at best "at the limits of what is constitutionally

acceptable," warrant -- and, in fact, demand -- that the

process be structured to do everything possible to make sure

the decisionmaker gets it right. In the United States, the

goals of fairness and accuracy are obtained through

procedural protections -- the type of procedural safeguards

that the district court found necessary and that the Sixth

Circuit affirmed in this case.

IV. Procedural Safeguards Are Required To Protect

The Internationally Recognized Human Rights Of

Prisoners.

A. Principles Of International Law Properly

Inform And IHuminate American

Constitutional Jurisprudence.

International law and opinion, although not binding

upon the courts of the United States, instruct and illuminate

American constitutional jurisprudence. See Sosa v. Alvarez-

20

Machain, 124 S. Ct. 2739, 2764 (2004) ("For two centuries

[this Court} has affirmed that the domestic law of the United

States recognizes the law of nations") (internal citations

omitted). Just this week, in Roper v. Simmons, this Court

stated: "The opinion of the world community, while not

controlling our outcome, does provide respected and

significant confirmation for our own conclusions.” Roper v.

Simmons, No. 03-633, 2005 U.S. Lexis 2200 at * 48-49

(March 1, 2005). This articulated principle continues the

tradition of this Court looking "within the world community"

when faced with complex constitutional issues, "considering

the views of ‘respected professional organizations, by other

nations that share our Anglo-American heritage, and by the

leading members of the Western European community.”

Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (quoting

Thompson v. Oklahoma, 487 U.S. 815, 830-31 n.31 (1988)):

see also Edmund vy. Florida, 458 U.S. 782, 796 n.22 (1982)

("climate of international opinion concerning — the

acceptability of a particular punishment’ is an additional

consideration which is ‘not irrelevant’) (quoting Coker vy.

Georgia, 433 U.S. 584, 596, n.10 (1977)). In Lawrence vy.

Texas, 539 U.S. 558 (2003), this Court, in overturning

certain criminal statutes as applied to activities of consenting

adults, noted that the "right of homosexual adults to engage

in intimate, consensual conduct . . . has been accepted as an

integral part of human freedom in many other countries."

539 U.S. at 576-77. In reaching its holding in that case, the

Court cited with approval decisions of the European Court of

Human Rights, because they reflect "values we share with a

wider civilization.” /d. at $73, 576.

This consideration of international law and opinion is

particularly apt in discussing the nature of constitutionally

mandated due process in the assignment to and review of

confinement in "supermax" facilities. The fair and just

treatment of prisoners is an issue that spans all continents

and resonates across the globe. A review of international

21

law and opinion on the issue before the Court, moreover,

unquestionably reinforces the importance of providing the

highest levels of due process protections (o ensure that

prisoners are assigned to "supermax" facilities only when

and where the circumstances meet the justification offered

for their use.

B. "Supermax" Facilities Raise Serious Human

Rights Concerns.

The conditions in "supermax" facilities, as with

conditions in any other prisons, are "subject to human rights

standards contained in treaties signed by the United States

and binding on state and federal officials." Out of Sight,

supra.

These standards were first enunciated in the

Universal Deciaration of Human Rights, G.A. res. 217A

(111), December 10, 1948, of which the United States is a

signatory. Article Five of that Declaration states: "No one

shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment." To similar effect, the

International Covenant on Civil and Political Rights, G.A.

res. 2200A (XX1), December 16, 1966, ratified by the United

States in 1992, states in Article 7: "No one shall be subjected

to torture or to cruel, inhuman or degrading treatment or ©

punishment." Article 10 further provides: "All persons

deprived of their liberty shall be treated with humanity and

with respect for the inherent dignity of the human person."!”

The Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment ("UN Convention")

also states, in Article 16: "Each Party State shall undertake to

prevent .. . acts of cruel, inhuman or degrading treatment or

'? Article 10 requires that "the reform and_ social

rehabilitation of prisoners" be an “essential aim" of

imprisonment.

22

punishment. . . ." Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, ,

G.A. res. 39/46, December 10, 1984. See also European

Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment, (E.T.S. 126, Nov. 26,

1987), Historical Background and Main Features of the

Convention, Ref.: CPT/nfiC (892) ("European

Convention") ("the Convention's aim is to strengthen the

protections of persons deprived of their liberty against

torture and inhuman or degrading treatment or punishment").

C. Human Rights Experts Agree That Extensive

Procedural Protections Are Essential And

Must Accompany Assignment To "Supermax"

Facilities.

1. The United Nations Committee Against

- Torture And The European Committee

For The Prevention Of Torture And

Inhuman Or Degrading Treatment Or

Punishment

In response to a report submitted by the United

States, that discussed, inter alia, "supermax" conditions, the

United Nations Committee against Torture ("CAT")”

expressed its concerns about "the excessively harsh regime

of the 'supermaximum' prisons" within the United States.

Consideration of Reports Submitted by State Parties Under

'* CAT is established pursuant to the UN Convention and

"consists of experts of high moral standing and recognized

competence in the field of human rights." UN Convention,

Article 17. Countries that have ratified the Convention are

required to submit to CAT "reports on the measures that they

have taken to give effect to the undertakings of the

Convention. ..." /d., Article 19. CAT may comment on a

report "as it considers appropriate. .. ."_ /d.

23

Article 19 of the Convertion, Conclusions and

Recommendations of the Commitiee against Torture: United

States of America, A/55/44, 44 175-180 at 4 179(f) (May

15, 2000). Additional guidance as to how the principles of

international law apply to the issues before this Court can be

found in the work of the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment

or Punishment ("CPT"), established under the European

Convention, and which is recognized as an influential source

of minimum standards for the treatment of prisoners. Since

1990, the CPT has carried out 189 prison visits in 46

member States and, as a result of those visits, has developed

minimum standards relating to humane treatment of

prisoners, set forth in the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment

or Punishment (CPT) CPT Standards, Substantive Sections

of the CPT 's General Report CPT/INWVE (2002) 1-Rev. 2004

(CPT Standards). '*

The CPT acknowledges “that in every country there

will be a certain number of prisoners who present

particularly high security risks and hence require special

conditions of detention." /d. at 27. It is this group of

prisoners “that is of particular concern to the CPT, as the

need to take exceptional measures . . . brings with it a greater

risk of inhuman treatment." Jd. “The CPT pays particular

attention to prisoners held, for whatever reason," including

as a result of their "dangerousness" or their "troublesome"

'* The CPT is composed of experts in the field of human

nights or prison or police matters. It examines the treatment

of prisoners in member countries through on-site visits to

prisons, “with a view to strengthening the protection of such

persons from torture and from inhuman or degrading

treatment or punishment." European Convention, Chapter 1.

Article 1.

24

behavior,” under conditions “akin to solitary confinement.”

Id. at 20. Such isolated confinement, according to the CPT,

can severely impair physical and mental health. See Cold

Storage, supra.

Because of the serious deprivations and potential

damage caused by confinement of this sort,'* the CPT has

'S The CPT recognizes that "[s]olitary confinement can, in

certain circumstances, amount to inhuman and degrading

treatment." CPT Standards at 20. It has further recognized,

reflecting the same conclusions as reached in the studies

cited above, supra pp.12-16, that “all forms of solitary

confinement, without appropriate mental and physical

stimulation, are likely, in the long term, to have damaging

effects, resulting in deterioration of mental faculties and

social abilities." /d. Echoing the particularly strong

evidence of damage to those with pre-existing mental

conditions, the CPT recommends that "no mentally-ill person

be held in such a unit." European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment

or Punishment, Report to the Portuguese Government on the

visit to Portugal, from 14 to 26 May 1995, CPT/Inf (96) 31

[EN] (1996). The CPT has also recognized other aspects of

this type of imprisonment that must be carefully

circumscribed and monitored. See CPT Standards at 27

aie Os Nees hoe S a

deleterious effects on a prisoner's personality, . . .

satisfactory program of activities, including education, sports

and work of a vocational nature, to be just as important -- if

not more so -- in a high security unit than on normal

location"). | “Moreover, even when specific security

measures are required, such measures should never involve

depriving the prisoners concerned of natural light and fresh

air." Jd. at 25. These “are basic elements of life which all

prisoners are entitled to.” /d.

25

stated that when making a decision about whether to subject

a prisoner to placement in such solitary confinement, “the

principle of proportionality calls for a balance to be struck

between the requirements of the situation and the imposition

of a solitary-confinement-type regime.” CPT Standards at

20. “It 1s axiomatic that prisoners should not be subject to a

special security regime any longer than the nsk they present

makes necessary." /d. at 28: see also European Committee

for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment, Report to the Finnish Government

on the visit to Finland, from 10 to 20 May 1992, CPT/Iinf

(93) 8 [EN] (1993). ("the mental and physical state of all

prisoners placed in solitary confinement must be the subject

of special attention").

In order to avoid erroneous or unnecessary

assignment to or continued confinement in solitary

conditions, the CPT recommends that any decision to subject

a prisoner to high security units be accompanied by certain

procedural safeguards -- "[t]he prisoner should be informed

of the reasons for the measure taken against him, be given an

opportunity to present his views on the matter before a

definitive decision is taken, and be able to contest the

measure before an appropriate authority." CP7 Standards at

19. The CPT further recommends a full review of the

necessity of the classifications and security measures, for

each prisoner, at least every three months “by staff specially

trained to carry out such an assessment." /d. at 28. The

procedures recommended by the CPT are the very type of

protections that the court below sought to ensure were

provided to the pnsoners subject to confinement by the OSP

in its “supermax" facilities.

2. International Human Rights Organizations

According to Human Rights Watch, a human rights

assessment of "supermax" confinement requires three key

factors: eligibility criteria, specific conditions and the

26

duration of confinement, with each considered in relation to

the other. See Out of Sight, supra.

Extreme restrictions and controls that might

be considered reasonable in dealing with

incorrigibly violent inmates become excessive

for inmates who are not. Deprivation of

- sources of stimulation, human contact and

activity that may not be unbearably cruel for

some inmates can become torture when

imposed on mentally ill inmates. Harsh

conditions that might not be unacceptable for

a month or two become inhumane and

degrading when imposed for years.

Id.

Human Rights Watch has developed detailed

recommendations addressing all three of these factors which,

if followed, would reduce the current conflict between

“supermax" confinement and respect for human rights of

inmates. These recommendations expressly address the

procedural protections necessary to ensure inmates are not

unnecessarily placed in supermaximum confinement.

Human Rights Watch insists that prisoners should not be

confined in such conditions except when their behavior has

shown them to be so chronically violent or dangerous and to

pose such a demonstrable, extremely serious threat to prison

safety and security that prison officials have no other choice.

Even then, confinement in “supermax" should be for the

shortest period of time possible in light of legitimate security

and safety considerations. Moreover, inmates should have

meaningful opportunities to both contest assignment to or

continuation in "supermax" confinement and appeal those

decisions. All inmates should be given a written, detailed

and individualized explanation of the specific reasons for

their initial and continued “supermax" confinement and have

the right to meaningful periodic review. See Out of Sight,

supra.

27

Similarly, Amnesty International has recommended

that "authorities in supermax units amend their policies to . .

. establish clear criteria for and regular review of placement

in supermax prisons.” Amnesty International's

Recommendations to the United States Government to

Address Human Rights Violations in the USA (August 1,

1998), available at

http://web.amnesty.org/library/index/engamr5 10461 998.'°

'° The concerns of these organizations with regard to

“supermax” facilities in the United States are not limited to

the process by which prisoners are assigned to these facilities

and by which they are kept there for extended periods of

time. Like Human Rights Watch, Amnesty International has

expressed grave concern about the proliferation of

“supermax" facilities in the United States. While

recognizing that “it is sometimes necessary to segregate

prisoners for safety or security reasons," Amnesty

International has found “conditions in many U.S. supermax

facilities [] far more punitive than is required for legitimate

security purposes and constitute cruel inhuman and

degrading treatment in violation of international standards."

A Briefing for the UN Commitiee against Torture at 22.

Many of the conditions typical of “supermax" confinement

contribute little or nothing to the overall security of a facility.

Lack of windows, and access to fresh air and light, denial of

reading material, lack of outdoor recreation, lack of in-cell as

well as out-of-cell education and training programs, provide

no added security. Such deprivations can only be explained

as reflecting an unwillingness to acknowledge an inmate's

basic humanity and thus violate basic tenets of international

law. See Cold Storage, supra. Moreover, many "supermax"

units or facilities breach the specific standards contained in

the United Nations Standard Minimum Rules for the

Treatment of Prisoners, including those specifying the need

(Footnote continued)

28

In sum, international human rights principles -- as

well as the application and interpretation of those principles

by international courts, official bodies, and established

human rights organizations -- reinforce the conclusion that,

to the degree “supermax" prisons are permitted to be used,

the greatest possible care must be taken to ensure that only

persons requiring confinement in such facilities are assigned

to them and that persons remain in those facilities only so

long as is necessary.

Under our constitutional system, the procedural

protections of due process of law are the mechanisms upon

which our Nation relies to ensure the kind of accurate and

fair decisionmaking that principles of International Law

require before these extreme conditions are imposed on

prisoners. In this case, the courts below correctly found the

system that OSP had for placement to be wanting in this

critical regard, and imposed minimum requirements to

for windows, natural light, fresh air and daily outdoor

exercise. See A Briefing for the UN Committee against

Torture at 23. Like Human Rights Watch, Amnesty

International is especially concerned about the severe

psychological damage caused by prolonged isolation and

reduction of sensory stimulation, particularly on mentally ill

or disturbed prisoners who continue to be held in "supermax"

facilities without adequate treatment or monitoring, despite

the documented deleterious affect of "“supermax"

confinement on the mentally ill. See Amnesty International,

Open Letter to the President of the United States from

Amnesty International following Hearings Held by the

United Nations Committee against Torture (June 22, 2000),

available at

http://web.amnesty.org/library/index/engamrS | 1072000.

29

Constitution -- require nothing less in these circumstances of

extreme deprivations and degradation, as well as extreme

psychological and emotional risk.

CONCLUSION

For the foregoing reasons, Amici Curiae Human

Rights Watch, American Friends Service Committee, Bluhm

Legal Clinic, The Center for Justice In Capital Cases, Illinois

Association of Criminal Defense Lawyers, and National

Lawyers Guild respectfully submit that the judgments of the

courts below should be affirmed.

Respectfully submitted,

JAMIE FELLNER GEOFFREY F. ARONOW

Human Rights Watch Counsel of Record

350 Fifth Avenue KATHLEEN BENWAY

34th Floor ALEX S. GORDON

New York, NY 10118 Heller Ehrman White &

(212) 612-4700 McAuliffe LLP

1717 Rhode Island Ave., NW

Washington, DC 20036

(202) 912-2000

MOLLY WIESER THOMAS F. GERAGHTY

American Friends Service Committee Bluhm Legal Clinic

915 Salem Avenue Northwestern University School

Dayton, OH 45406 of Law

(937) 278-4225 357 E. Chicago Avenue

Chicago, IL 60611

(312) 503-8576

Cont'd on next page

30

ANDREA D. LYON

The Center for Justice in Capital

Cases

DePaul College of Law

25 E. Jackson Blvd.

Chicago, IL 60604

(312) 362-8402

Illinois Association of Criminal

Defense Lawyers

P.O. Box 2864

Chicago, IL 60690-2864

(773) 643-4225

Counsel for Amici Curiae

PAUL WRIGHT

National Lawyers Guild

143 Madison Avenue

New York, NY 10016

(212) 679-5100