Upcoming Event: “Isolation within U.S. Prisons,” April 5 in San Francisco

A quick exception to the hiatus to note this event that should be of great interest to my Bay Area readers:

The Center for Constitutional Rights Presents:
Isolation Units Within U.S. Prisons: A Panel Discussion
featuring Dr. Terry Kupers; Keramet Reiter, PhD Candidate U.C. Berkeley, Zahra Billoo, Exec. Director, Council on American-Islamic Relations (CAIR_SF), and CCR Staff Attorney Alexis Agathocleous.

Tuesday April 5, 2011
6:30 p.m.
Audre Lorde Room
The Women’s Building
3543 18th St. #8
San Francisco

More info here. More on Terry Kupers, a leading expert on prison mental health issues, here.

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Ghailani May Spend Life in Florence Supermax

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:

Widespread Torture and Abuse in Iraqi Prison System

USA Today summarizes the findings of a new Amnesty International report:

About 30,000 detainees are currently in Iraqi custody, although the exact number has not been released, the report stated. Prisoners are often housed in crowded conditions, leading to health problems, and they sometimes go years without seeing the inside of a courtroom, Amnesty said. …

Amnesty International researchers detailed a litany of abuse, including suspending people by their limbs, beating them with cables and pipes, removing toenails with pliers and piercing the body with drills.

Hundreds of people — including some facing the death penalty — have been convicted based on confessions extracted through torture, the report said.

The vast majority of the detainees are Sunnis suspected of helping the insurgency; hundreds are Shiites accused of being part of the Mahdi Army, an outlawed militia run by anti-American cleric Muqtada al-Sadr, who has fought U.S. and Iraqi security forces.

Last month, the U.S. military released thousands of its own prisoners into Iraqi custody (i.e., into these conditions), completing the near-total handover of prison responsibilities to the Iraqi government. However, Reuters reports that U.S. wardens continue to guard about 200 detainees, “including al Qaeda militants and henchmen of ousted dictator Saddam Hussein.”

Web Resources: Lawfare

Jack Goldsmith, Benjamin Wittes, and Robert Chesney recently launched a blog, Lawfare, focusing on national security law. Readers interested in the bleed-through between the War on Terror and the War on Crime (which I’ve touched on before) will want to bookmark the site, if only because it promises to provide access to the latest briefs in pending Guantanamo detention cases. Today Benjamin Wittes gathers a number of briefs in pending D.C. Circuit appeals.

Confronting the Mass Incarceration Mindset

A few weeks ago, I posted the always-shocking data on the rise of mass incarceration in the United States over the past 30 years. That data, however, is just the most visible way of measuring the rise of the American carceral state. And in turn, dismantling mass incarceration will require more than simply reducing the jail and prison population—which is merely a symptom of a deeper phenomenon.

What I mean is this: Mass incarceration is not just about the number of people actually behind bars. It’s also about a cultural mindset that turns to the criminal justice system—either literally or as a model—as the first response to almost any problem or disruption, even something so minor as a schoolchild’s misbehavior. In his book Governing through Crime (Oxford, 2007), Berkeley law professor Jonathan Simon argues that over the past 40 years, our society has reconceptualized virtually every social problem—extreme poverty, educational inequality, mental illness, undocumented migration, etc.—through the lens of crime, creating a culture of fear in which every citizen is defined first and foremost as a victim.

At the same time, this culture also defines certain members of our society as criminals—everywhere they go. As sociologist Victor Rios puts it, in a 2006 article,*

one of the most brutal yet unexamined collateral consequences of punitive criminal justice policies and mass imprisonment is that of the non-criminal justice institution being penetrated and influenced by the detrimental effects of the criminal justice system. Youth of color are hypercriminalized because they encounter criminalization in all the settings they navigate.

Rios found, in his interviews with black and Latino teenage boys in the San Francisco Bay Area, that many experienced their daily lives almost as if they were in jail — so pervasive has become the criminal justice system’s reach into schools, community centers, and even families. He gives the example of “Jr.”:

Oscar Grant, Johannes Mehserle, and the Prison Blogger’s Dilemma

Working through my reactions to the widespread anger over the Mehserle verdict has been a quandary for me since, as will probably be apparent to regular readers of this blog, I don’t believe that prison—and certainly not prison the way it’s practiced in California—is a very good solution for almost anything our society uses it for. Angry as I am about Johannes Mehserle’s killing of Oscar Grant, and about the whole set of social and cultural and economic circumstances that made such a killing not only possible but all too likely—it’s hard for me to direct much of that anger, if any, towards the fact that Mehserle may not serve as much time in prison as many would like to see him serve.

European High Court: U.S. Prisons Could Violate European Convention on Human Rights

UPDATE: Lots more details on this case available over at Solitary Watch.

The European Court of Human Rights has issued a preliminary ruling barring the extradition of three terror suspects from the U.K. to the United States, on the grounds that confinement in a federal supermax could violate Article Three of the European Convention on Human Rights. The court has requested further submissions before it issues a final decision; the preliminary ruling can be downloaded here. Note that the court rejected the suspects’ arguments that they would not receive a fair trial in the U.S.; it focused entirely on post-trial conditions of confinement, specifically the prospect of long-term solitary confinement and a life sentence without possibility of parole.

Here are the questions on which the court has requested further briefing:

• Given the length of the sentences faced by Mr Ahmad, Mr Aswat and Mr Ahsan if convicted, would the time spent at a “supermax” prison, the US Penitentiary, Administrative Maximum, Florence, Colorado (“ADX Florence”), amount to a violation of Article 3? Would they have any real prospect of entering the “step-down programme” whereby they would move through different levels of contact with others until they would be suitable for transfer to a normal prison?
• Does the Eighth Amendment to the United States Constitution (prohibition on “cruel and unusual punishment”), as interpreted by the federal courts, provide protection equivalent to Article 3 of the Convention?
• If convicted, would the applicants’ sentences be de facto reducible?

Upcoming Event: Prison-related Panels at ACS 2010

This weekend, the American Constitution Society will hold its national convention in Washington, D.C. Almost all the panels could bear on prison/jail issues in some way, and certainly on broader concerns of criminal law, procedure, and punishment. That said, if you’re planning to attend and are especially interested in prison/jail issues, watch out for these panels:

Friday, June 18

• 2010 Census and Redistricting — perhaps the discussion will touch on prison-based gerrymandering?
• Access to Federal Courts after Iqbal and Twombly
• Immigration Reform: Congress and the States

Saturday, June 19

• Detainees and Justice: Military Commissions vs. Trials within the Federal Court System
• The Federal Role in Improving Indigent Criminal Defense

Help End Prison Rape, Preserve Due Process: Two Opportunities for Public Comment on Federal Prison Regulations

If you have an extra five minutes today, here are two easy ways for you to share your opinion with the federal government and make your thoughts part of the public record. You can be sure that corrections officials and lobby groups will be seeking to influence the government on both these issues, so it’s important that ordinary citizens make their voices heard as well.

(1) Write to the DOJ urging adoption of the National Prison Rape Elimination Commission Standards

As I’ve noted before, the Department of Justice is currently accepting public comments on whether it should adopt the National Prison Rape Elimination Commission standards. The public comment period ends soon (May 10), so take a few minutes today to submit your comment, if you haven’t already. The proposed standards are based on best practices from prison systems that have made concrete progress in reducing sexual abuse behind bars — so their adoption nationwide could make a real difference in combating what’s become a true human rights crisis in this country. If you feel that you need more information about the scope of the problem, check out the details and links at the Just Detention International website. Then, there are a number of easy ways to submit your comment into the public record:

• Visit www.regulations.gov, search for “Docket No. OAG-131” as your keyword, then click “Submit a Comment.” You’ll be taken to a form where you can enter your comment as text or upload an attachment.
• Sign this petition at Change.org, which will submit a form letter to Eric Holder on your behalf.
• If you prefer snail mail, sample letters and addresses are available from Prison Fellowship.

(2) Write to the Bureau of Prisons about its so-called “Communications Management Units“

As reported here by Politico, the Obama Administration is reviving a set of rules first proposed but later abandoned by the Bush Administration to keep terrorism-related federal prisoners in special, isolated facilities, with very extreme restrictions on their outside communications. These so-called “Communications Management Units” are actually already in use, and in a recently filed lawsuit, prisoners allege they’ve been transferred there with no notice or due process, and without any clear standards as to who qualifies for this treatment. By belatedly publishing a set of rules for the CMUs, the administration may be hoping to forestall that lawsuit’s claim that the use of CMUs was never subject to public notice and comment, as is generally required of new federal regulations. (I blogged about the lawsuit here).

Note that by definition these rules would affect not the so-called “worst of the worst” terrorism-related prisoners (who would likely be sent to the federal supermax in Colorado, if not whatever substitute for Guantanamo the administration comes up with) but rather, as Politico puts it, “prisoners who are perceived by the government or as a result of their crimes to be more likely to try to associate with terrorist networks” (my emphasis: note all the implicit “ifs”). Prisoners currently in the CMUs claim they’ve been singled out for their religious or political beliefs, or in retaliation for filing grievances against the prison system — not for legitimate safety reasons — and that they weren’t given any opportunity to view or challenge the evidence allegedly supporting their isolation.

• If you choose to write to Eric Holder about this general issue, the Center for Constitutional Rights has some suggested language. You can also send a form letter through their website by clicking here.
• If you want to comment specifically on the new federal regulations, you have until June 7. To submit your comment, go to www.regulations.gov and search for “BOP Docket No. 1148-P” as your keyword, then click “Submit a Comment.” Then upload your comment as text or an attachment. The Brennan Center for Justice makes some points about the proposed regs that you may want to incorporate into your comment.

DOJ Plans to Buy Illinois Prison Whether or Not It’s Approved for Terror Detainees

According to Assistant Attorney General Ronald Welch, the Obama Administration will move forward with plans to purchase a prison facility in rural Thomson, Ill., whether or not Congress approves the transfer of Guantanamo detainees there. The DOJ has asked for $237 million in appropriations in next year’s budget to buy and begin using the facility to hold high-security federal inmates. Rep. Don Manzullo (R – IL), who represents northern Illinois in Congress, publicly supports the new federal prison as a way of creating jobs, but has been critical of plans to transfer Guantanamo detainees there, ostensibly for safety reasons.

Here I’ll just note a few related points; make of them what you will: 1) As I noted the other day, prisons actually haven’t been found to boost local economies, or to create as many jobs as hoped; 2) I’ve never quite understood why people are so worried about bringing the remaining Guantanamo detainees into the U.S., considering that the federal supermax in Colorado already holds some pretty dangerous folks; 3) Is this the start of a federal prison mini-boom? As the Pew Center on the States reported this week, although state prison populations have fallen in over half the states, the federal prison population is growing:

The survey found that the federal prison population continued to grow, rising by 6,838 prisoners, or 3.4 percent, to an all-time high of 208,118. Expanded federal jurisdiction over certain crimes and increased prosecution of immigration cases account for much of the increase.