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Locked up in darkness: the U.S. federal
supermaximum prison debate
Anna Muns
Student number: 10061363
anna.muns@student.uva.nl
Thesis Supervisor: dr. M.S. Parry
Graduate School of Humanities, University of Amsterdam, 2015-2016
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Table of Contents
1. Introduction
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2. The supermax debate in politics: pragmatism or activism?
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3. Supermax prisons as a crime control industry
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4. A constitutional matter: solitary confinement and American
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jurisdiction
Conclusion
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Appendix I: Overview of the political, economic and judicial
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arguments proposed in the federal supermax debate
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1. Introduction
In December of 2015, the American federal government guaranteed the funding for a new federal supermaximum security facility, or supermax prison, in Thomson, Illinois. Although the
appropriations still needed the approval of Congress, it was presumable that also they will sign the bill to open up the funds for opening the Thomson supermax facility. The Thomson
correctional center was already bought by the Obama Administration in October of 2012 for a total amount of $165 million, but remained nonoperational until this day. The Bureau of Prisons, the federal law enforcement agency, bypassed the House of Representatives who objected the purchase of the facility in the first place. After the funding was issued, House Speaker John Boehner issued a statement: ‘’The unilateral decision to purchase the Thomson Prison –even though Congress has repeatedly opposed the Obama administration’s effort to use taxpayer funds to do so –underscores the administration’s desire to move forward.’’1 The acquisition of
Thomson prison did not only cause friction in the Republican majority in the House, it also caused disputes within the Republican Party.
It appears that the use of supermax prisons, and the incarceration in solitary confinement that comes with it, has substantially gained popularity during the 1990s and early 2000s as more than forty state supermax prisons opened their doors. The nation’s increased reliance on solitary confinement appears to originate in the ‘tough on crime’ policy that started out in the 1980s. During this time, the idea of rehabilitation was in decline as a guiding theory of corrections. Instead, the correctional facilities of the last twenty years seem to follow a philosophy of deterrence, which eventually led to new regulations regarding correctional facilities.2 Today, most of the supermax facilities are under direct state control. Until now [red. June 2016], only one supermax prison is administered by the Department of Justice’s the Bureau of Prisons and is therefore under direct control of the federal government. This federal supermax facility, the ADX Florence in Colorado opened its doors in 1994 and houses more than 400 prisoners in solitary confinement today. This facility was partially modeled after the existing USP Marion facility in Illinois, which was upgraded to a supermaximum prison after a stabbing incident in 1983.
1
‘Press release by John Boehner on Thomson Prison’, Paul Ryan Speaker of the House website, October 2, 2012: http://www.speaker.gov/press-release/speaker-boehner-obama-administration-s-purchase-thomson-prison-backdoor-move-import.
2
Jesenia M Pizarro, ‘Supermax Prisons: Myths, Realities, and the Politics of Punishment in American Society’, The Prison Journal, January 2006, Vol 17, 12.
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However, in 2006, the USP Marion was downgraded to a medium-security prison as there was no longer the urgency to sustain two federal supermax prisons.
Despite the increased popularity of supermax prisons under policymakers, the arrival of these new facilities is not without controversy. Critique on the American approach of its criminal justice system is not new; several legal scholars, social scientists and historians have written on the racial inequality, the cruel punishments and the high recidivism that keeps haunting the American justice system. However, the literature specifically focused on supermax prisons is relatively new. Sharon Shalev’s Supermax: Controlling Risk through Solitary Confinement is considered to be one of the key works in this field of topic. It consists of a deep analysis of legal policy and statistical data in combination with interviews conducted with prisoners, the
disciplinary staff and prison administrators.3 According to Shalev, the objectification of prisoners, arises from the administrator’s response to litigation, and therefore, shuts down the ethical arguments in the debate on supermax facilities. Emphasizing the scathing nature of solitary confinement, she opens up the debate on solitary confinement once again.
Besides Shalev’s crucial work on supermax facilities, a wide range of scholars have joined the debate on supermax facilities, starting at the turn of the century. Social scientists, health experts and legal scholars intended to expose some of the main characteristics of these facilities, ranging from the legality of solitary confinement to the social impact of this
punishment. Until then, little was known on the living conditions inside the prison, nor was there any knowledge on the placement procedures. Although there are of course differences between supermax prisons as they are subject to a particular state legislature, research has shown that all supermax facilities share certain characteristics. Prisoners are mostly incarcerated in solitary confinement cells 23 hours a day, where they are not allowed any physical contact and any treatment programs take place within the walls of the prisoners’ cells. The only physical contact that takes place is when the wards place or take of the handcuffs and prisoners only leave their cells for showers and some exercise moments.4
The living conditions of these prisoners and the emphasis on the use of solitary
confinement also make the debate around the establishment of such prisons a debate specifically
3
Sharon Shalev, Supermax: controlling risk through solitary confinement (Portland: Willan, 2009)
4
Jesenia M Pizarro, ‘Supermax prisons: Their rise, current practices and effect on inmates’, The Prison
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focused on solitary confinement, other parties such as the non-profit organization Solitary Watch tend to give extra attention to this particular incarceration condition when discussing supermax prisons. By reporting on the developments in the debate around solitary confinement and the political remarks on the use of it, they intent to raise awareness about the gruesome conditions of confinement in sole isolation. This seems to have its effect in the past two years, as also the Supreme Court has picked up on the debate when Supreme Court Justice Anthony B. Kennedy denounced the use of solitary confinement during the Davis v. Ayala case in 2014. Kennedy made clear that there was a special role for the justice department reserved in battling injustices of the prison system: ‘’Lawyers are fascinated with the guilt/innocent adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the
corrections system than we do.’’5
Although Kennedy took a sharp stance with these remarks, the Supreme Court has not yet achieved a break-through in the case of solitary confinement.
However, in January of 2016, Obama announced a ban on the use of solitary confinement for juveniles in federal prisons.6 This could be the beginning of a significant break-through in the case of solitary confinement.
Nonetheless, the solitary confinement debate that seems to erupt now and then is only a small part of the discussion on supermax prisons. Even though, the method is used in these types of prisons, it is not the only aspect that should be discussed. From the 2000s on, different scholars have focused their analysis of maximum security prisons mainly on the ideas behind the use of this correctional method. The origins of supermax housing can be found already in 18th century America, where the Quaker ideal of penance in complete silence became popular as a method of redemption. The prisoner would be alone with its thoughts, which would eventually lead to full repentance and salvation. The prison administrators were there to facilitate this form of penance, but should not be actively involved with the rehabilitation process. According to Caleb Smith, this form of dehumanization of the prisoner became eventually the core of American justice and even American society.7 Robert A. Ferguson, prolongs this argument by stating that the United
5
Matt Ford, ‘Justice Kennedy Denounces Solitary Confinement’, The Atlantic, June 18, 2015: http://www.theatlantic.com/politics/archive/2015/06/kalief-browder-justice-kennedy-solitary-confinement/396320/.
6
‘Barack Obama: Why we must rethink Solitary Confinement’, The Washington Post, January 25, 2016:
https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html
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States has a specific obsession with punishment that differs their system from others. Ferguson, as many other scholars, argues that the American justice system and its ‘’exceptionalist’’ stance on it has failed, because of its ‘’punishment regime’’ character.8
Although the amount of research produced in the work of criminal justice more or less agrees on the fact that the United States have failed in creating a solid justice system, the research generated on supermax facilities does not always coincide with each other. Especially in the case of the impact of supermax prisons on its prison population, its wards and the administrative body there has been a lot of disagreement. Administrators often perceive supermax prisons as a solid institutional tool to house ‘the worst of the worst’. A 2006 inquiry among prison wardens in supermax facilities demonstrated that almost all of them considered the restrictions within the prisons beneficial for the safety, order and control. Besides that, the wardens believed that the use of supermax prisons could be a deterrent factor.9 However, there is no empirical evidence yet, that shows that supermax prisons are effective. A report published in 2001, stated that, according to the Colorado Department of Corrections, the rate of violent incidents had dropped by fifty percent.10 On the contrary, a study that evaluated the opening of supermax prisons in Illinois and Minnesota showed that it did not reduce the degree of violence among inmates.11
The dissent over the impact of supermax prisons on an administrative level is also apparent in the debate around the individual effect it has. One of the major concerns of full security prisons is their possible effect on the prisoners’ mental health. Some studies performed by sociologists provide evidence that a long term lockdown without any physical contact and the stressful environment within the supermax prison could cause symptoms of psychological
disintegration and panic attacks.12 These are also the arguments used by parties as Solitary Watch and Justice Kennedy as they address the cases whereby, especially young inmates were mentally damaged by the time they got out. These stories are supported by media coverage in articles in
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Robert Ferguson, Inferno: An Anatomy of American Punishment (Cambridge: Harvard University Press, 2014).
9
Daniel P. Mears, ‘Evaluating the Effectiveness of Supermax Prisons’, U.S. Department of Justice, January 2006: https://www.ncjrs.gov/pdffiles1/nij/grants/211971.pdf
10
Eugene Atherton, ‘Incapacitation with a purpose. Corrections Today’, 63, 2001, 101.
11
Briggs, C. S., Sundt, J. L., & Castellano, T. C. (2003). ‘The effect of supermaximum security prisons on aggregate levels of institutional violence’, Criminology, 41, 1360.
12
Craig Haney, ‘Mental Issues in Long-Term Solitary and ‘’Supermax’’ Confinement’, Crime and
Delinquency, Vol. 49, No. 1, January 2003:
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The New York Times and The Atlantic as they distribute the stories on the overall neglect of the
mental health problems of prisoners and its abominable effect on life outside of prison.13
However, these studies are often considered weak as they did not take into account the previous mental condition of the inmates before they were imprisoned. Many of these prisoners already developed mental illnesses even before committing their crime, but medical documents
supporting this assertion are often not available. On top of that, some of these studies are limited as they tend to only investigate those prisoners who are already filing a lawsuit for their treatment during their confinement.14 The lack of diversity of cases makes it therefore difficult to generalize the entire supermax prison community.
Besides the methodological problems of the studies mentioned above, there are also different inquiries suggesting that incarceration in a supermax prison could have beneficial effects on inmates. According to this research, inmates tend to reflect intensely on their self-control which eventually would lead to self-forgiveness.15 Furthermore, the solitary incarceration could also be perceived as a form of protection. There are cases in which the inmate specifically requests complete isolation to be protected from gang violence. This could be the case especially in prisons in the California area where white supremacist gangs and African American gangs are often the source of extreme prison violence. On top of that, there are signs that supermax
incarceration statistically does not have the mere negative health effect as proposed by other social scientists. These studies show that, for example, only 3.1 % of USP Marion inmates had to be relocated to a mental hospital.16
There is somewhat of a discontinuity in the United States’ attitude towards
supermaximum correctional facilities nowadays. In 2010, Mississippi started to close down some of its supermax prisons and saved more than $5 million dollars in doing so. It sparked a new wave of prison reform as other states such as Minnesota and Ohio are rethinking the use of solitary confinement as well.17 Considering Mississippi as one of the most conservative state, it
13
Mark Binelli, ‘Inside America’s Toughest Federal Prison’, The New York Times, March 26,
2015: http://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-prison.html?_r=1.
14
Craig Haney, ‘Mental Issues in Long-Term Solitary and ‘’Supermax’’ Confinement’, 2003.
15
R.D. King, ‘The Rise and Rise of Supermax: An American Solution in search of a Problem?’, Punishment and Society, Vol. 1 (2), 2005: 172.
16
D.A. Ward and T.G. Werlich, ‘Alcatraz and Marion: Evaluating super-maximum custody’, Punishment
and Society, Vol 5, No. 1: 60. 17
Erica Goode, ‘Rethinking Solitary Confinement’, The New York Times, March 10, 2012:http://www.nytimes.com/2012/03/11/us/rethinking-solitary-confinement.html.
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can be said that is at least remarkable this state would take upon an exemplary role in this case. Even though the State court of Mississippi addressed the issue of solitary confinement as
inhumane and therefore gave the impression that it conducted its prison reform for humanitarian reasons, the economic argument seems to be the crucial factor in this case. But if the different states are reconsidering their use of solitary confinement and supermax prisons, why is the federal government planning to open a new federal supermax prison in 2016? It would be too simplified to argument that the United States government completely neglects the humanitarian argument against the use of supermax prisons. As in every governmental procedure, there are other key factors that influence the federal policy.
Even though the case of supermax prisons has produced a lot of studies the past twenty years, there are still a lot of questions unanswered. Scholars and social scientists mentioned above agree that there is still a deficiency of knowledge of the effect of supermax prisons on overall policies. Because of the focus on the social impact and the more mythological idea behind solitary confinement, often, the more pragmatic arguments to keep supermax prisons is
overlooked. Juxtaposed against all the social issues concerning supermax facilities, there are also political, judicial and economic dimensions that should be taken into account. As stated by Shalev: ‘’Prisons do not function in a vacuum but are part of a larger criminal justice system, which operates within a wider social, cultural, political and economic system’’.18 Until now, there have been little attempts to add these policy considerations relevant to assessing whether new supermax prisons should be built. By only concentrating on the social effects of supermax prisons, we are neglecting the more pragmatic elements that also have influence, or maybe even are a decisive factor when it comes to the United States’ national policy regarding supermax prisons. Therefore, the core of this thesis will be dedicated to explaining the other factors that are apparent to have the most influence on the supermax prison policy debate on a national level as there is a great discrepancy between the growing discontent with this system and the construction of a new supermax prison.
Therefore, this thesis will look into the specific case of federal supermax prisons; not only because it seems that there is a discontinuity between policy on a state level and that on federal level, but also because these prisons have somewhat a special status. As seen before, in order to introduce prison reform on a state level, there is no need of a national court. In the case of federal
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prison reform, there is the need of a Supreme Court case. Prison reform will not specifically be the focus of this thesis, but the policy decisions regarding supermax prisons, made by the administrative bodies of government, could one day be those factors that will influence whether or not there will be a Supreme Court case. Because there have been a few federal supermax prisons in the past that all had their own characteristics, beginning with Alcatraz in the 1930s, this thesis will be mainly dedicated to the opening and operations of the ADX Florence in Colorado and the current debate on the Thomson prison.
In order to analyze the other more pragmatic factors in the supermax debate, this thesis will consist of three chapters that each covers a theme. Divided into a political, economic and judicial part, this thesis tends to demonstrate an alternative explanation of the inconsistency in federal policy. The first chapter will cover the pure political aspects of this debate. Recurring topics in this chapter will be Obama’s intention to transfer Guantánamo Bay prisoners to the new Thomson prison and the influence of Congress on the solitary confinement debate. In order to get a complete image of the political debate, state politics will be taken into consideration as well. There will be special attention to the role of Illinois Senator Dick Durbin who was involved in the national debate numerous times. He approved the purchase of the Thomson prison, but was also the initiator of two Congressional Hearings on the case of solitary confinement. His case shows just how complicated the debate around federal supermax prisons really is.
The second chapter will focus on the economic effects of supermax prisons and how these effects have influenced the arguments in the debate. It is said that incarceration in solitary
confinement and the execution of maximum security is a costly operation. As said before,
Mississippi has banned the use of solitary confinement mainly because of budget cuts. In contrast to state prisons, the federal prisons are directly funded by The Bureau of Prisons and the United States Department of Justice. Therefore, an analysis of the federal budget plans for this
department will give an insight in prioritization within prison policy. Besides a closer look on the budgets that make supermax facilities possible, this chapter will also assess the economic impact on the local community and the cost-effectiveness of supermax prisons. Rural communities and private companies seem to benefit directly from the opening of a new prison.
The last chapter, aimed at explaining the judicial part of the supermax debate, will touch upon the difficulties encountered when attempting to implement prison reform on a legal level. An important factor that contributes to the continued operation of supermax prisons is the
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Supreme Court’s acceptance of the legality of it. Some federal judges have openly expressed their concerns but, in general, they remain reliant on the prison administrators’ advice and the effective control on supermax prisons. In order for the Supreme Court to take upon a case on supermax prisons, the use of solitary confinement should be in contradiction with the United States Constitution. Therefore, an assessment of the case of supermax prisons and its discrepancy with the Eighth and Fourteenth Amendment could be a way to discuss supermax prisons in a federal court.
Throughout this thesis, I will also discuss the role of the media on this debate; especially when it comes down to the influence of American politics in this debate, we can see that the media has always been an important agitator for new debate. Because it seems that the arguments in these three chapters stand on their own, I have added an argumentative table as an appendix that is to be found at the end of this thesis. Throughout my research I have found that the arguments proposed in each chapter do not stand on their own; they are all correlated which makes the debate even more complex. This thesis will not propose any immediate action, but rather aims to expose the different interests that are at stake concerning a federal supermax prison. When these motives are exposed, it will be less complicated to think of a way to reform this system on the long-term.
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2. The supermax debate in politics: pragmatism or activism?
When the Bureau of Prisons [from now on the BOP] decided to replace the supermaximum unit control in Marion, Illinois with a new facility in Florence, Colorado, a request via the Freedom of Information Act by the People’s Office to get more information on this new facility was turned down. Wallace H. Cheney, Assistant Director of the BOP wrote: ‘’the issues you enquired about have not yet been decided. Therefore, no records exist at this time pertaining your request.’’19
The rejection of this request is characteristic for the secrecy that seems to surround supermax prisons, especially in the 1990s and early 2000s. As a consequence, investigative journalism became an important source for information; information that the United States Department of Justice was not willing to give. However, this does not mean that there is no legislation on supermax facilities or that this legislation isn’t subject to political changes. There is nothing really political at wanting to improve a dysfunctional prison system, but the fact that the supermax strategy, with all its costs, continues to be adopted as a primary strategy implies that politics feature prominently when it comes to prison policy.
There are a few moments from the 1990s onwards during which politicians took a clear stance against supermax prisons, yet these actions never seemed strong enough to shut down the supermax facilities for good nor were these actions very consistent. Most of the policy decisions regarding supermax facilities are made by the bureau that runs the United States correctional facilities, the BOP. Although they are a part of the United States Department of Justice, they have more or less the exclusive right on shaping prison policy. However, during some important decision-making regarding supermax prisons, the government, mostly in the form of Congress, steps in to make sure that the checks and balances system maintains and that the BOP
underwrites the United States Constitution. Yet, we have to ask ourselves at what point Washington decides to step in and if political action can be related to political activism or
personal interest. Therefore, this chapter will be structured chronologically with a special focus to the opening of both the ADX Florence in 1994 and the possible opening of the Thomson facility in a more current day context.
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The first political interest
In 1984, just one year after its complete lockdown, the Judiciary Committee in Congress commissioned two correctional consultants to assess the operations of the first official federal supermax prison in Marion, Illinois. Allen A. Breed, the former director of the National Institute of Corrections, and Sociologist Professor, David A. Ward. They presented their results in a report submitted to the House of Representatives. The report starts with an overview of causes that may inflict the need for action; because of growing racial tensions and gang forming during the 1970s, a lot of prisoners had to be transferred from other prisons to the high security control unit in Marion. By doing so, the BOP intended to place all ‘’disruptive’’ inmates in one federal prison system that could guarantee absolute security. As stated: ‘’In essence, Marion would become a very specialized facility to house those inmates from the Federal Prison System whose violent, extremely disruptive behavior, causes management problems in other facilities‘’.20 This indicated a return to the old ‘’Alcatraz system’’ where one prison is destined for special punishment. It is of great importance to clearly distinct administrative segregation to that of disciplinary
segregation; administrative segregation was not considered as a form of punishment, it was rather a policy-based response. However, a return to the Alcatraz model, which was known for its brutality against prisoners, was not the best publicity for the BOP and, therefore, these decisions were kept relatively secret. Only when the USP Marion was completely locked down in 1983, the media would catch up on the story with headlines as ‘’Marion, Ill., Facility is the New Alcatraz’’ and ‘’Marion Prison: Home for the Hostile’’.21
On top of that, it is peculiar, that the BOP, even though it is a governmental office, did not consult the rest of the Department of Justice
concerning the USP lockdown. In this way, it became clear that there was an absence of government during this particular decision.
Nevertheless, after the lockdown, Congress took its first interest in the incarceration treatment of supermax prisons by issuing a report. The report shows that immediately after the lockdown, the number of assaults with weapons dropped dramatically because of the decrease of contraband. However, these optimistic results stand in sheer contrast with the experiences of inmates themselves as in the first half of 1984, 155 suits were filed against the BOP, which eventually would result into the Bruscino v. Carlson case. The prosecutors, ‘’all prisoners who
20J.D. Henderson, Chairman, ‘’Marion Task Force Report’’, August 1979, 5. 21
Samuel O. Hancock, The LA Times, October 20,1985 and Paul Galloway, The Chicago Tribune, April 21, 1985.
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are confined at Marion Penitentiary or who may in the future be confined at Marion
Penitentiary’’, requested monetary relief for the alleged violations of their constitutional rights. According to the testimonies, inmates were confined in cells without bathroom facilities in handcuffs and leg irons for an extensive period of time. They were also threatened and verbally abused by the staff especially when they protested against their treatment.22 As a result, Congress required the BOP to come up with new procedures in order to ensure the prisoner’s safety.
According to Ward, he and Breed were given access to all the reports, even those who were labeled ‘covert’ at first, and had full autonomy when it came to interviewing the inmates.
In their study findings and remarks, Breed and Ward, recommended the BOP to keep the USP Marion control system intact, because a downscaling of the supermax correctional facilities would spark a new gulf of violence. Yet, the two investigators do claim that a better relationship between staff and inmates was necessary to prevent abuses. Moreover, the BOP should consider new experiments in its prisons and establish a mental health center in each facility. On top of that, the agency should give inmates access to legal material as inmates often feel frustrated because of the neglect of their constitutional rights. On the long term, the bureau should consider the
construction of other level 6 (supermax) facilities or control units in each of the five regions that are under the control of the BOP. This would make visitations for the inmates’ family easier and human contact would eventually benefit the rehabilitation process. It would also allow the BOP to experiment more with rehabilitation programs on a regional level. So, Breed and Ward do not consider a supermax facility to be damaging: ‘’ We have not recommended that the lockdown be ended but in addition to the recommendations listed above for changing the current living and working conditions at Marion, we urge the Bureau of Prisons to enhance the training of the Marion staff in crisis intervention.’’23
At the end of the report, Jerry T. Wiliford, warden of the USP Marion, sets forth the guidelines for the facility in the next coming years: there will be more attention for mental and physical health of prisoners, there will be more access to education and legal documents and inmates will receive more freedom concerning telephone calls, work and television.24 All in all, this could be seen as a little breakthrough in prison reform.
22
Bruscino v. Carlson, ‘’Memorandum and Order’’, July 24, 1984: http://www.clearinghouse.net/chDocs/public/PC-IL-0022-0001.pdf.
23
Alan Breed and David Ward, ‘Consultants’ report submitted to the Committee on the Judiciary, U.S. House of Representatives’, December 1984:
https://www.ncjrs.gov/pdffiles1/Digitization/103769NCJRS.pdf, 32.
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From a broader perspective, the increase in popularity of supermax prisons, or
incarceration methods in general, can be partially subscribed to the ‘’tough on crime’’ ideal, that started already in the early 1980s. The crack epidemic and the rise of violent gangs obliged the American government to respond quickly; guide-line based sentences and mandatory penalties were to keep the American public safe.25 However, the American prison population would quadruple in the next ten years and even minors would serve excessive long sentences. This shift in penal policy from a more rehabilitative approach to a punitive approach also meant a shift in separating criminals from society for a while, to separating them from society indefinitely. Nonetheless, it remains difficult to subscribe the coming of new federal supermax prisons solely to the ‘’tough on crime’’ policy. In contrast to other tough on crime policies where deterrence is the main goal, the first decisions regarding supermax facilities were not to scare off American criminals by showing hard punitive measures. In addition, there was not much extra attention drawn to the correctional methods, as the USP Marion was more or less an experiment of
supermax facilities. In this way, the rise of a federal supermax prison was not particularly part of the United States tough on crime policy, rather was it a consequence of overpopulation of
prisons, which in return can be subscribed to the tough on crime policy. As criminal law researcher Riveland stated: ‘’supermax prisons have become political symbols on how ‘tough’ jurisdiction has become’’.26
The use of supermax facilities was sold as a way to deal with ‘’the worst of the worst’’, but this implies a mere strategy than a goal.27
In this way, it was more proposed as a quick solution than a long-term policy.
Although the USP Marion is outside of state jurisdiction and falls directly under the federal government, there has been little control of the Department of Justice or the District Attorney on the USP Marion. This was one of the criticisms from the many activist groups that demanded a revision of the supermax system. Congress had neglected the poignant situation in the USP Marion until the stabbing incidents of 1983. Moreover, after riots broke out after this incident, medical aid to the wounded prisoners was denied. Their statement also includes a great critique on the biasness of Ward and Breed as they intentionally omitted crucial information:
25
Zimring, F. E. (2001). Imprisonment rates and the new politics of criminal punishment. Punishment
and Society, 3, 163. 26
Chase Riveland, Supermax Prisons: Overview and General Considerations (Washington DC: National Insitute of Corrections, U.S. Department of Justice, 1999), 5.
27
Daniel P. Mears, ‘Towards a Fair and Balanced Assessment of Supermax Prisons’, Justice Quarterly, Vol 23, 234.
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‘’The incorrect judgment of credibility reveals a lack of objectivity on the part of Breed & Ward’’.28
However, according to the Marion Prisoner’s Right Project, Congress is also a victim in this case as they are depending on the large-scale propaganda of the BOP, who intent to ‘’sell’’ the lockdown. Therefore, their advice is mainly aimed at Congress that should exercise its power over the BOP so that ‘’Bureau of Prisons officials do what they are supposed to do – follow clearly established law and afford prisoners their basic human rights’’.29
At the end of the report, they ask for immediate action from Congress in the form of a Congressional Hearing. The BOP chose not to respond directly to the accusations and therefore, Congress did not take action as well. Here, we can clearly see that Congress mostly reacted to its own institutions at that time; since the BOP or the US Department of Justice did not request a new assessment of the
legitimacy of the USP Marion, there was no direct Congressional Hearing. The BOP only had to give account for their actions if Congress requested it, as would later happen in 2012.
The need of a new facility
In September of 1989, BOP Director J. Michael Quinlan requested a more adequate approach to the implementation of supermax prisons. The USP Marion was not built as a control unit prison and it would not take long before it got crowded. Therefore, in 1993 the construction of a new federal supermax prison began in Florence, Colorado. When a FOIA request was turned down by Wallace H. Cheney, General Counsel of the BOP, the People’s Office responded by pointing out the similarities between the USP Marion and the new ADX in Florence. Even though, BOP officials convened to look at revising the supermax system in the new facility, a general fact sheet reflects that in the ADX unit the conditions would not be improve relative to the USP Marion.30 After the first two letters, the Committee to End the Marion Lockdown wrote a letter to J. Michael Quinlan in order to get more answers on these conditions. After their appeal was turned down,
28
‘Response to report and recommendations of Breed and Ward report to the Judiciary Committee on Marion Federal Prison’, March 1985:
http://freedomarchives.org/Documents/Finder/DOC3_scans/3.susler.cunningham.response.report.3.1985.p df.
29
Jan Susler and Dennis Cunningham, ‘Response to the report and recommendations of Breed and Ward report to the Judiciary Committee on Marion federal prison’, Marion Prisoners’ Rights Project, March 1985:http://freedomarchives.org/Documents/Finder/DOC3_scans/3.susler.cunningham.response.report.3.1 985.pdf.
30
‘Letter to Wallace H. Cheney concerning the ADX Florence’, The People’s Office, January 8 1991: http://freedomarchives.org/Documents/Finder/DOC3_scans/3.correspondence.susler.to.cheney.enclosure9. 1.8.1991.pdf?_sm_au_=iVVWST15Ms0tPVrR.
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the CEML send a letter to all of its members in which they solicited to reach out to all members of the Congressional Judiciary Subcommittee for a Congressional Hearing. Congress did not respond to this and, as a result, the decision-making process regarding the ADX Florence never became fully apprehensible for outsiders.
Therefore, it is difficult, even today, to really assess how the policy-decisions regarding the ADX Florence were made. The BOP plans were kept secret, but in the course of 1992, the BOP released some documents regarding the benefits of the new prison in which they promise to build a gentler more accessible supermax prison. By using the word ‘’room’’ instead of ‘’cell’’ and by focusing on ‘’institutional careers’’ of prisoners, the BOP intended to sell its new prison to a larger audience. Together with local media as the Denver Post, the BOP gave the impression that the new facility would only house the worst criminals such as neo-Nazis, serial killers and drug lords as John Gotti. Associate Professor in American Studies Robert Perkinson calls the parties that left the impression that only the ‘’worst of the worst’’ were to be imprisoned in the ADX Florence, prisoncrats. These are not per se politicians; instead, Perkinson actually targets the ‘’individual penal institutions, each caught within the matrix of the dominant social order’’.31
This implies that the American government and especially Congress did not have direct influence or did not want to have direct influence on prison policy in the early 1990s. Only this argument would be too narrow as, as well as under Reagan as under Clinton, Congress has implemented dozens of crime policies in which they favor social control over social reform. Although this bipartisan approach to crime made it easier for the BOP to establish the new maximum security prison in Florence, it did not per se have a direct influence in it.
Although the protests against the opening of the Colorado prison would not stop after its opening in 1994, there was almost no attention for it in the national media. Some local
newspapers kept reporting on the prison and its inhumane conditions, but the national newspapers were surprisingly quiet. This was the result of the imprisonment of some of the ‘’worst of the worst’’ domestic terrorists at the end of the 1990s. The incarceration of Theodore Kaczyncski, ‘’the Unabomber’’, in 1998 and that of Robert Hanssen, the Soviet spy, in 2001, somewhat justified the use of supermax prisons; these were the worst enemies on American domestic soil and should therefore be under surveillance all of the time. This raises important questions about
31
Robert Perkinson, ‘Shackled Justice: Florence Federal Penitentiary and the New Politics of Punishment’, Social Justice Journal, Vol. 21 No. 3, October 28, 1994.
16
the nature of prisoners in supermax prisoners and its relationship with what is justified within prison policy. It questions if a certain form of dehumanization takes place whenever we trial terrorists or traitors and if we still think that they can be rehabilitated. Although this is a somewhat bold statement, this can be an explanation for the little attention paid to the ADX in Florence at the 1990s. This dehumanization process is also noticeable when looking at Obama’s Guantánamo policy that will be discussed later on in this chapter.
In 2004, the Abu Ghraib revelations shined a new light on human conditions in prisons, those domestic and foreign. There was a renewed interest in the ADX Florence from sociologists, scholars and newspaper from 2004 onwards. However, it would still take eight more years until the first Congressional Hearing on the supermax facility and its solitary confinement practices would take place. For the first time, the United States prison practices abroad brought up a discussion on domestic soil. In 2005, a group of psychiatrists filed an Amicus Curiae Brief in the Supreme Court during the Wilkinson v. Austin case in which they stated that: “[n]o study of the effects of solitary or supermax-like confinement that lasted longer than 60 days failed to find evidence of negative psychological effects’’.32
After this case, many law suits based on the violation of the Eighth Amendment33 would follow and more scholars and psychologists would examine the conditions in supermax prisons.
In 2009, the scale of the use of supermax imprisonment gained publicity as a report on the Tamms supermax facility showed that almost 50 of its prisoners spent their sentences in complete solitary confinement.34 The Chicago Tribune caught up on this story and one of its reporters, Gary Marx, visited on site to report on its current conditions.35 In late February, Illinois Governor Pat Quinn announced that due to budget cuts he intended to close down Tamms correctional facility. The closing down of this prison would save the state up to $26 million annually
according to Quinn, but he couldn’t count on the support of the rest of the state counsel. Although the closing of the facility would save the state of Illinois a fixed amount of money per year, it
32
Wilkinson v Austin, 2005 WL 539137, No 04-495 (3 March 2005) (Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent).
33
‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’, U.S. Const. amend. VIII.
34
George Pawlawczyk & Beth Hundsdorfer, “Trapped in Tamms: Supermax Prison Confines Inmates to Cells 23 Hours a Day”, Belleville News-Democrat, August 5, 2009.
35
Gary Marx, ‘A look inside Illinois’ only supermax prison’, The Chicago Tribune, February 27, 2009: http://articles.chicagotribune.com/2009-02-27/news/0902260729_1_mentally-ill-inmates-illinois-department-controversial-prison.
17
would also impact the economy that was created around the prison. Therefore a ‘Closure Economic Impact Study’ was necessary in order to define the benefits of closing down the facility. The outcome was negative; the closure of the facility would result in unemployment and extra costs to re-locate the facility employees.36 However, it appeared that the media reportage on the Tamms prison benefited Quinns case and eventually, the facility would close its doors in 2013.
However, the closing down of these facilities were not arbitrary choices. United States national politics had finally caught up on the case of solitary confinement and supermax prisons in June 2012 when the first Congressional Hearing on this case was held in Washington DC. It was commissioned by Illinois Senator Dick Durbin and took place before the Committee on the Judiciary. Its main goal was to reassess solitary confinement, especially human rights and the public safety consequences. The hearing focused mostly on solitary confinement and the role the BOP played in facilitating that method. Statements during the hearing were made by, among others, Charles E. Samuels, director of the Bureau of Prisons, Craig Haney, a Professor of Psychology and Christopher Epps, Commissioner of the Department of Corrections in
Mississippi, a state that already had banned solitary confinement mainly for budget reasons back in 2010. Durbin opened the hearing by specifically focusing on the numbers of prisoners that were kept in solitary confinement that day, 81.622 prisoners, and a plea to all members present to visit one of these prisoners to look at the specific conditions. This said, Sen. Lindsey Graham (Rep-S.C.) takes over by questioning Charles E. Samuels on the awareness of the BOP on this case. During Samuels’ statements it becomes clear that the BOP uses solitary confinement as a deterrent; the numbers show that the amount of assaults has declined and therefore, the method was beneficial to guarantee the prison staff’s safety.37
However, the bureau itself had not constructed yet a research in order to assess the effects of supermax imprisonment on the mental health of prisoners. This extensive study was not deemed to be necessary, according to Samuels, as any prisoner is assessed by a psychiatric staff
36
‘Impact of the Closure of Selected Department of Corrections Facilities, 2012’, Report to the Illinois
Department of Corrections, February 2009:
http://cgfa.ilga.gov/upload/IDOCFacilityClosureEconomicImpactStudy.pdf.
37
June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg87630.pdf, 11.
18
before their prison times begins. Yet, Durbin questions Samuels’ own ability to spend a distinct amount of time in solitary confinement by saying: ‘’Do you believe you could live in a box like 23 hours a day […], it would not have any negative impact on you?’’. On top of that he questions if there are enough psychologists to determine if a prisoners can handle solitary confinement and if prisoners have the possibility to challenge their punishment. Samuels acknowledges that he does not know the exact number of prisoners in solitary confinement, but that there are enough psychologists available for prisoners to fall back on. After the medical effects on prisoners are discussed, the Hearing goes on to a more economic evaluation of the use of supermax prisons. Christopher Epps has executed the shutdown of supermax correctional facilities in Mississippi and emphasizes that the closure of these facilities do not have an immediate impact on the safety as he implemented different programs that focused more on rehabilitation instead of punishment. They saved $5.6 million dollars on a year basis and violence within the prisons has not
increased.38 As we will see in the last chapter, it seems that prison reform on a state level will again fulfill an exemplary function for the federal prison policy.
The problems found in the policy-making around supermax prisons is mainly addressed when lawyer Stuart M. Andrews Jr. According to him, there should be independent counsels to evaluate the BOP’s policy, ‘’because right now it is just a system reviewing its own system’’.39
During the Congressional Hearing, Durbin appealed to the empathy of the Committee and Samuels by inviting Andrew Graves, a former prisoner who spent almost his whole sentence in solitary confinement. Graves gave a quick insight into prison life in solitary confinement: “No one can begin to imagine the psychological effects isolation has on another human being. Solitary confinement does one thing; it breaks a man’s will to live.” Together with Graves’ statements on the conditions in supermax prisons, Durbin concluded the hearing by stating that: ‘’Politicians get elected and reelected by being tougher and tougher sometimes, and maybe it is time for us to step back and say let us be smart, let us be thoughtful. When it is all over, let us write a record that we can be proud to tell our children about in terms of who we are and what we have done’’.40
It becomes clear from this Congressional Hearing that the BOP did not have implemented a
38
June 19, 2012, issued by Senator Dick Durbin, held before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, focused on the human rights, fiscal and public safety consequences of solitary confinement: http://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg87630.pdf, 23.
39
Ibid, 26.
40
19
structured program in order to fulfill medical and psychological needs of prisoners in solitary confinement; Samuels was not consisted in his answers before the Committee and was not able to give an exact number of prisoners in solitary confinement.
As the Congressional Hearing was the first time American mainstream politics showed interest in the case of supermax prisons, and therefore can be seen as a first step towards supermax reform. Already in February of 2013, Durbin announced that the BOP agreed on an independent assessment of solitary confinement by the National Institute of Corrections. This was not the only result as since the hearing, the BOP had closed two Special Management Units and reduced its supermax population with 25 percent.41 However, the research done by the NIC was not as independent as it appeared to be as that organization was partially funded by the BOP. Nonetheless, the NIC had contracted out the research to CNA Analysis and Solutions that was headed by Ken McGinnis, who served as a director for many of the Michigan and Illinois correctional facilities (that were directed by the BOP). These factors made the investigation or audit untrustworthy according to Solitary Watch. On their website they state: ‘’The audit may recommend incremental change by ‘’reclassifying’’ a small number of isolated prisoners, but it is unlikely to produce any serious challenge to the use of solitary confinement’’.42
After the audit was conducted, a new Congressional Hearing took place on February 25, 2014. In the opening statements, again given by Senator Durbin, he addresses specifically to the issue of children locked away in solitary confinement. Since the hearing in 2012, Human Rights Watch had interfered in the case of solitary confinement and published a report together with the
American Civil Liberties Union (ACLU) in October of 2012. This report focused on the isolation
of young people and stated that: ‘’ Solitary confinement can exacerbate short- and long-term mental health problems or make it more likely that such problems will develop. Young people in solitary confinement are routinely denied access to treatment, services, and programming
41
‘Durbin Statement on Federal Bureau of Prisons Assessment of its Solitary Confinement Practices’, February 4, 2013: http://www.durbin.senate.gov/newsroom/press-releases/durbin-statement-on-federal-bureau-of-prisons-assessment-of-its-solitary-confinement-practices.
42
James Ridgeway and Jean Casella, ‘Under Fire, Federal Bureau of Prisons Audits Use of Solitary Confinement –and buys a new Supermax Prison’, Solitary Watch, October 18, 2013:
http://solitarywatch.com/2013/10/18/fire-federal-bureau-prisons-audits-use-solitary-confinement-buys-new-supermax-prison/.
20
required to meet their medical, psychological, developmental, social, and rehabilitative needs.’’43 Thus, focus from the international community, new lawsuits that challenged the treatment of prisoners with mental illnesses and the increased media coverage on the ADX in Florence made the need for a reassessment of the previous hearing even more necessary.
In the hearing of 2014, it is remarkable to see that most of the statements speak in favor of reform even though those who were invited to join the panel were mostly Directors or Board Members of the United States’ biggest supermax prisons. They plea for restrictive programs that are forced on the rehabilitation of prisoners, instead for those who show violent behavior and no program is suitable. Rick Raemisch, Executive Director of the Colorado Department of
Corrections, the department that also directs the ADX in Florence, states that he is absolutely willing to implement an action plan to reduce the numbers in SHU’s drastically. However, he acknowledges that it is not just a problem of the United States, it is an international problem. He states that: ‘’ I believe reform requires the cooperation of corrections leadership, corrections staff, legislators, stakeholders and the community.’’44 During the Questions for the Record, he
elaborated further on the idea that the ADX Florence really should act on signs of mental health problems of prisoners: ‘’You can only imagine what an administrative segregation cell does to someone, who is mentally ill to begin with. Our goal is zero major mentally ill inmates in segregation.’’45 In this way, correctional leaders are not completely opposed to the idea to implement reform; it is just a lack of cooperation between the parties
Inconsistent policy
Even though it seemed that even the BOP was ready for change by agreeing on necessary reform, the federal government purchased a new facility that was to be transformed into a new federal supermax prison. In a letter to Governor Quinn in 2009, Secretary of State, Hillary Clinton declared that after President Obama issued an order in January of that same year to close down
43
‘Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States’, HRW and ACLU, October 10,2012: https://www.hrw.org/report/2012/10/10/growing-locked-down/youth-solitary-confinement-jails-and-prisons-across-united.
44
‘Testimony of Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and
Public Safety Consequences, February 25, 2014:
https://www.judiciary.senate.gov/imo/media/doc/02-25-14RaemischTestimony.pdf.
45
‘Questions for Rick Raemisch’, Reassessing Solitary Confinement II: The Human Rights, Fiscal, and
Public Safety Consequences, February 25, 2014:
21
Guantánamo Bay Prison, a new correctional facility in Thomson, Illinois would be used for the detainees that were left in Cuba. This prison would be an administrative segregation unit whereby ‘’the security of the facility and the surrounding region is our paramount concern’’. It will exceed the security standards at Florence and local law enforcement will work together with the Federal Joint Terrorism Task Force in order to decrease contact between the prisoners. Secretary Clinton gives special thanks to Governor Quinn and Senator Durbin for their advice and assistance during the evaluation of this proposal.46 This is at least remarkable, considering Senator Durbin and Governor Quinn took a clear stance against the use of segregative units.
In October of 2012, at the same time the ACLU report on youth detainees in isolation was being published, the BOP officially purchased the facility from the state of Illinois. Yet, the two elected Illinois officials who approved this purchase were, strangely enough, also the two officials who were known for challenging solitary confinement. In a press conference, Governor Quinn praised the support of President Obama and Senator Durbin for an opportunity ‘’for hard-working people who live from paycheck to paycheck […] and who make sure that we have a federal prison that is top-notch.47 Their prime motivation to support the Thomson purchase was job creation and economic growth. This was later confirmed by Durbin’s press statement on his website stating that: ‘’This historic action will lead to the creation of hundreds of construction jobs and over 1,000 permanent jobs at this federal facility.’’48
Although both Illinois statesmen, the Secretary of State and President Obama agreed on the importance of this purchase, the House of Representatives did not approve of the sale in the first place. It was mainly because the
majority of the HoR did not approve of locking down potential dangerous terrorists on domestic soil. Another argument looked at a more financial perspective that will be elaborated further in chapter three; the purchase of the old Thomson facility would bring a lot of renovation costs with it. In that respect, a new stream of funds was necessary in order to even open the facility. Besides the funds, the Department of Justice declared that the transfer of potential dangerous terrorists on to domestic soil was problematic. The facility could be used as a way to reduce the problem of
46
‘Letter by Hillary Clinton and her support for Thomson Prison’, December 15, 2009: https://www.whitehouse.gov/sites/default/files/091215-letter-governor-quinn.pdf.
47
‘Press Conference Governor Quinn on the Thomson sale’, Youtube, October 2, 2012: https://www.youtube.com/watch?v=mFAnIH8-fyM#t=120.
48
‘Durbin, Quin announce sale of Thomson Correctional Center to the Federal Government’, Senator
Durbin website, October 2, 2012:
22
overcrowding in other supermax prisons, but it should not function as a tool to close down Guantánamo Bay. Eventually, the Thomson prison funding would be approved and the prison is planned to be operational already in 2016.
But how was it possible that Senator Durbin, an advocate for solitary confinement reform would be so in favor of the new facility. It is clear that the creation of jobs was a unique selling point of the plan, still his actions appear to be untrustworthy. When Solitary Watch asked Senator Durbin’s office to respond to this given, they came with this reaction:
‘’Senator Durbin’s efforts to secure the purchase of Thomson prison, reform solitary confinement practices, and encourage smarter sentencing practices are all consistently aimed at improving the safety, rights, and treatment of inmates, prison guards and the broader community. He will continue his work to ensure that all prisoners, whether in Thomson or elsewhere in the Federal system, are treated humanely and that no one is housed in segregation unnecessarily’’49
In this statement, his rhetoric shifted from speaking from a prisoners’ perspective, as he did during the Congressional Hearings to a more community-based perspective. In the latter case, the segregative units function as a way to ‘keep society safe’, an ideal which came from the ‘’tough on crime’’ period in the 1980s. So, why could the Thomson prison case be viewed with different standards than for example the ADX in Florence, Colorado? This brings us back to the idea of the ‘dehumanization’ of terrorists. According to sociologists like Nick Haslam, the rhetoric that was used during the War on Terror, contributed to the dehumanization theory in which one’s enemies can be dehumanized by portraying them as monsters, or the axis of evil.50 They endanger the free democratic society, its most ideal form of human life, and are, therefore, less human. It goes even further when it is declared that: “fundamental to a nation’s public support for war…
Dehumanizing others renders the requisite horrors of war tolerable.”51 So, in order to render a war against a certain group of people, dehumanization seems almost necessary. As the United
49
Aviva Stahl, ‘New Federal Supermax Prison will double capacity for extreme solitary confinement’,
Solitary Watch, January 15, 2015:
http://solitarywatch.com/2015/01/15/new-federal-supermax-prison-will-double-capacity-for-extreme-solitary-confinement/.
50 N. Haslam, ‘Dehumanization: An integrative review’, Personality and Social Psychology Review, 10(3),
257.
51
K. C. Elliott, ‘Subverting the rhetorical construction of enemies through worldwide enfoldment’,.Women and Language, 27(2), 100.
23
States government has never intended to ‘humanize’ the prisoners of Guantánamo Bay, it makes it, from a moral perspective, easier to put them in a supermax prison.
Over the past thirty years we have seen great shifts in the political influences in the supermax policy debate. There are critical moments, as during the opening of the ADX in Florence and the publishing of human rights reports in which Congress has stepped in. This was often under pressure of the media or Civil Rights groups. This shows that pressure from human rights advocates and the media can trigger political action. However, even when Congress stepped in it appeared to be difficult to push through reform as the BOP practically operated on its own. It had its own checks and balances system that prevented the BOP to be thoroughly questioned on its policy. Besides the direct influence of the BOP, the dehumanization made it possible to be very inconsistent when taking a stance on supermax facilities. As shown, there has been made a clear distinction in the appeal for prison reform when it comes to terrorists or
potential dangers to the whole American nation. These prisoners are in a way dehumanized which makes it less complicated to expose them to the conditions of supermax facilities.
24
3. Supermax prisons as a crime control industry
In December of 1998, Eric Schlosser coined the term prison-industrial complex, a set of bureaucratic, political and economic interests that encourage an increased spending on
imprisonment, regardless of the actual need.52 This idea of imprisonment as a mode of profit was not new. Already in 1993, at the time of the opening of the ADX in Florence, Norwegian
sociologist Nils Christie argued that the crime control industry is in a favorable position as there is an endless supply, crime will always exist, and an endless demand of service, as security is always on the top agenda of most national governments.53 As more than 2.4 million Americans serving a prison sentence today, this day and age can be considered the golden age of profit-making prisons. The last few years, the number of private prisons that are managed by third parties, mostly big corporations, has grown with almost 500 percent. Although this form of imprisonment is often praised by American politicians and economist as a real expression of the free market, it has also triggered many forms of corruption and exploitation. However, it remains difficult to determine if the focus on profit-making prisons is really applicable to supermax prisons as well, as these are often not privatized. Besides the focus on fiscal benefits, whether it is the creation of jobs or the expansion of the marketplace inside the prisons, there are two other main factors that contribute to economic dimensions of the supermax debate. In the first place, I will discuss the budget of the BOP because this more or less decides whether or not the operation costs of supermax prisons can be maintained. Since the fiscal budget of the BOP is often
determined by a political agenda, there will be some overlap with the previous chapter. After that, I will discuss the proposed economic benefits. In the last part of the chapter, the benefit-costs analysis, often done by economists, will assess whether or not the economic implications of supermax prisons will benefit the level of security and if it is worth the costs. Since the three factors shown above are heavily discussed points in the possible opening of the Thomson facility, I will mainly address this case in the coming chapter.
Overcrowding and budget problems
Even though the spirit of the free market and the privatization of prisons that came along with it seem as the most important factors when talking about the economic aspects of prison policy, the
52
Eric Schlosser, ‘The Prison-Industrial Complex’, The Atlantic, December 1998:
http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/304669/.
53
25
budget problems of the BOP, especially from the 2010s onwards, have also shaped current day prison policy. The economic policy of the BOP is liable to the economic crisis and the need for budget in times of political hardship. As we have seen in the previous chapter, in 1989 BOP director Quinlan emphasized the importance of a new federal supermax facility to lighten the burden of the growing prison population in the USP Marion. To accomplish this, a drastic increase in the BOP budget was necessary. If an increase in budget is needed, Congress is the only institution that can appropriate a bill to release extra funding. Between 1990 and 1992 a significant increase in the BOP budget made the construction of the new supermax prison possible. However, other than a budget request form, there are no other sources available on the funding of this facility. Whenever the proposed increase in budget is too considerable, Congress needs to appropriate the extra funding. Yet, there are little records of the financial aspects of the construction of the ADX in Florence. Although the state expenditures as cost per resident grew with $33 between 1990 and 1992, there are almost no media or governmental outlets that
reported on this issue. Once again, it seems that the BOP has almost complete autonomy when it comes to their policy, even if it is their financial policy.
When looking at newspaper articles that were published just after the opening of the ADX Florence in 1994, there are not a lot of articles to be found with a more critical outlook on the financial funding of this prison. It would take until the end of 1997 before the first more critical approach of the new facility was published; The New York Times published an article on the ADX in which it stated that Colorado County was ‘’grateful to host the Alcatraz of the Rockies’’. Although the article does not specifically explore the availability of the federal budget, it does state that Federal officials in Colorado have lobbied greatly in Washington in order to affirm the funding. The new prison complex would bring about new job opportunities and economic growth that stimulated political pressure in Congress to appropriate the funding. This emphasis on the economic opportunities of prisons in rural areas would later also play an important role with the appropriation of the bill to fund the new Thomson prison. In this way, economic state politics could open up new budgets for the BOP to fund federal prisons.
It has to be said that since 1994 there have, of course, been some articles written on the federal supermax prison; only they appear to be somewhat superficial. In 2006, there is renewed attention for this case as there are some alarming indications that budget cuts would endanger the safety of the personnel inside the prison. The BOP requested a $500 million increase in budget,
26
but Congress only approved of $321 million. It was the same year the USP Marion was downscaled to a medium-security prison and the ADX in Florence became the only federal supermax prison in the United States. Although extra money for the transfer of prisoners was needed, the BOP was denied four extra budget increases since 9/11. The American Federation of Government Employees started a petition in order to create awareness among governmental officials as ‘’the risk of escapes and riots will increase, which endangers the lives of the current workforce, as well as the communities outside of the prison’’.54
This cry for help had its effect as from 2007 onwards the BOP budget increased drastically with almost $5 million dollars in total. A great increase compared to the budget cuts of $4 million dollars the year before. The
Department of Justice, the BOP included, also can appeal against the budget cuts of Congress. This was the case in 2013, when Congress decided to implement $1.6 million of cuts in the DOJ’s budget; this would mean that the BOP would lose $338 million of its annual budget, a cut that would have drastic implications according to Attorney General Eric Holder. In a letter to Democrat Senator Barbara Mikulski he states that the planned Congressional cuts would prevent the recently purchased prisons to go full operational, including the supermax facility in Thomson, Illinois. Eventually, this political pressure worked as, in December of 2014, the FY2015 Omnibus Appropriations bill passed to release extra funding to prepare the opening of the Thomson
facility. Once again, political pressure, this time in the form of a letter from the Attorney General, could serve the economic agenda of the BOP. Still, it raises questions on the accountability of the BOP. In official terms, Congress has to appropriate every extra funding needed, but there are almost no accounts on the critical assessment of the BOP’s operations or on how they spent the budget exactly. It would take until January 2016, before Republican Senator Rand Paul sponsored a bill to bring more accountability to the BOP. The proposed bill, the Federal Prisons
Accountability Act of 2016, would encourage more supervision on the BOP’s policy by, among others, limiting the BOP’s Directors term to ten years maximum. According to Paul, the Director of the BOP has ‘’significant budget authority over taxpayer dollars without their appointment having been subject to confirmation by the United States Senate. […] the Director of BOP is appointed by the U.S. Attorney General without Senate approval. […] This legislation would support subjecting the Director to the same congressional review as other top law enforcement
54
BOP Employees, ‘The Crisis at Federal Prison’, American Federation of Government Employees, Fall 2006: https://www.afge.org/index.cfm?page=ContentTest&fuse=document&documentID=1523.
27
agency chiefs within DOJ’’.55
This act was supported by Republicans as well as Democrats and fits in with this renewed interest in prison policy, as we have seen in the previous chapter. The planned opening of the new Thomson prison must have played a role as well, as the financing of this prison was heavily discussed. However, through extensive lobbying in Washington and sometimes a little help from local media, new funds can be made available for the BOP in order to keep the supermax system in process.
The Thomson prison purchase and its proposed benefits
In 2009, Congress ruled by a Republican majority would approve a bill that prevented the Obama Administration from funding the closing of Guantánamo Bay. Just a few months before,
President Obama had announced his plans to transfer the detainees to American soil, in particular the ADX facility in Florence. This transfer would cost $80 million, an amount that would have been subtracted from the $91 million supplemental war funding to support intelligence operations in Iraq. Republicans and even some leading Democrats opposed this plan as an incarceration of international terrorists on domestic soil would threaten national security. The bill explicitly barred the opening of special war funds to transfer, release or incarcerate any of the detainees in Guantánamo Bay to American soil.56 Therefore, when Attorney General Holder requested more funding in order to keep the BOP’s plans in operation, the DOJ specifically stressed that the Thomson facility would not specifically serve as an alternative for Guantánamo Bay, but instead would alleviate the overcrowding in the BOP’s other high-security facilities.57
However, it would be beneficial to emphasize the operation costs of Guantánamo Bay compared to those of the ADX in Florence. The operation costs of Guantánamo Bay amount to $450 million per year which eventually comes down to $2.7 million per prisoner. It would cost $78.000 per prisoner if the incarceration took place in the ADX in Florence, 35 less than incarcerating prisoners in Guantánamo. According to a Defense Department assessment, the transfer of Guantánamo Bay prisoners would save the department between $65 million and $85
55
Rand Paul, ‘’McConnell, Paul, Lee & Booker Sponsor Bill to Bring Accountability to Federal Prison’’,
Press Release, January 21, 2016:
https://www.paul.senate.gov/news/press/mcconnell-paul-lee-and-booker-sponsor-bill-to-bring-accountability-to-federal-prisons.
56
House of Representatives Bill 794, 111th Congress (2009).
57
Aviva Stahl, ‘New Federal Supermax Prison will double capacity for extreme solitary confinement’,
Solitary Watch, January 15, 2015:
