Prison Law Blog

Sara Mayeux

Ghailani May Spend Life in Florence Supermax

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As I’ve noted before, the War on Crime and the War on Terror have a lot of overlap. So, for students of mass incarceration, I wanted to highlight some particularly relevant snippets from the past few days’ coverage of the Ghailani verdict.

(1) Supermax, solitary confinement, and the politics of terror trials. Guantanamo military prosecutor Morris Davis has published this op-ed defending the verdict as just. Although his argument focuses mainly on procedural issues having to do with the trial itself, he also addresses Ghailani’s likely punishment:

Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

Of course, this is the same supermax that proponents of keeping Guantanamo open (most of whom aren’t exactly prison experts) have claimed is incapable of holding terror detainees. At least one prisoner has been held there in solitary confinement for decades, conditions that many psychologists don’t hesitate to call torture.

(2) The devalued currency of the life sentence? Here’s Benjamin Wittes of the Brookings Institution:

Ghailani will spend at least 20 years in prison and very likely will receive a life sentence. If he receives the latter or close to it (and assuming his conviction survives appeal), this disposition will not be in practical terms a bad one. This was not a capital case, after all. So life without parole was the most Ghailani could possibly get. That is still on the table, and the minimum sentence involves his going to prison for a good long time–though not nearly enough time, to be sure. If prosecutors can win a sentence at the high end of the range, the near-defeat here will be entirely symbolic, not practical. In functional terms, the trial will have served its purpose: to incapacitate and punish a very dangerous guy for a very long time, while shifting the foundation for his detention onto largely unassailable grounds.

Despite this, many commentators are dissatisfied with the Ghailani outcome. To be sure, most of them are opponents of the Obama Administration who would probably have expressed dissatisfaction whatever the outcome. Nonetheless, let’s assume there are at least some good-faith objectors: What does that tell us? Across the United States, it’s possible to earn a life sentence for any number of crimes. I wonder if we haven’t thereby devalued one of the most severest punishments we have — life in a federal supermax — to the point where, at least to many, it apparently seems inadequate for a convicted terrorist. (Yes, I know Ghailani was acquitted of 200+ counts, and could theoretically be sentenced to as few as 20 years, but let’s still be clear; he was convicted of a crime that carries a maximum sentence of life without parole.)

(3) Torture. Of course, I understand that people may be angry that Ghailani was acquitted of 200+ counts, but as Adam Serwer points out, that’s because the government was barred from using evidence obtained through torture: thus, as Serwer puts it, “the failure to secure justice on [the victims’] behalf lies squarely on the shoulders of those in the Bush administration who sanctioned Ghailani’s torture in the first place.” In a sane political system, Obama might be able to just come out and explain to torture defenders: “Evidence procured through torture has long been constitutionally barred from U.S. courts. This was no mystery or secret. When my predecessor authorized torture, he did so knowing that was the tradeoff he was making. Some of you may think that tradeoff was worth it, but that’s the tradeoff he made.”

Anyway, it’s unclear to me what this debate is really about, since the Obama Administration had claimed the authority to detain Ghailani indefinitely regardless of the trial’s outcome. The only question was whether he’d be detained at a place like Guantanamo or in the regular federal supermax, which as Col. Davis points out in the op-ed linked above, is actually more restrictive than Guantanamo.

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