Supermax Prisons and the Constitution: Liability ... - Supermaxed

U.S. Department of JusticeNational Institute of CorrectionsSupermax Prisons

U.S. Department of JusticeNational Institute of Corrections320 First Street, NWWashington, DC 20534Morris L. ThigpenDirectorLarry SolomonDeputy DirectorGeorge M. KeiserChief, Community Corrections/Prisons DivisionRandy CorcoranProject ManagerNational Institute of CorrectionsWorld Wide Web Sitehttp://www.nicic.org

Supermax Prisonsand the ConstitutionLiability Concerns in theExtended Control UnitWilliam C. Collins, Esq.Attorney at LawNovember 2004NIC Accession Number 019835

This report was funded by the National Institute of Corrections (NIC) under technical assistance number2004P1089. Points of view or opinions stated in this document are those of the author and do not necessarilyreflect the official position or policies of the U.S. Department of Justice.

To the vision and memory of Susan Hunter.

vAbstractAbstractExtended control units (ECUs), or “supermax”prisons, house a prison system’smost dangerous inmates. Because of therestrictions that go with the extraordinarily highlevel of security such inmates require, these facilitiessometimes function at the limits of what isconstitutionally acceptable and are, therefore, frequenttargets of inmate litigation. This monographis intended to help prisons operate ultra-highsecurityfacilities in a way that minimizes liabilityin litigation. The monograph covers the backgroundof supermax prisons and related litigation,and it takes a close look at case law, prison policiesand practices, and “lessons learned” inoperational areas that give rise to litigation.

viiContentsContentsAbstract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vForeword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiAcknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiiiExecutive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Chapter 1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Defining the Supermax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5Living on the Constitutional Edge: A Review of Case Law . . . . . . . . . . . . . . . . . . . .8Early Litigation About Long-Term Segregated Housing . . . . . . . . . . . . . . . . . . . .8Litigation About ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11Chapter 2. Mental Health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Providing Medical Care in Prisons: Guidance From the Courts . . . . . . . . . . . . . . .13What Is a “Serious Medical Need”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14What Is “Deliberate Indifference”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Mental Health Issues in the ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15SHU Syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16Who Should Not Go to the ECU? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18ECU Mental Health Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

viiiSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITTransferring Inmates for Mental Health Treatment . . . . . . . . . . . . . . . . . . . . . . . 23Involuntary Medication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Chapter 3. Medical Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Confidentiality Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Service Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Role of the Custody Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Health Insurance Portability and Accountability Act (HIPAA) . . . . . . . . . . . . . . . . . . 30Permission To Share Medical Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30Access to Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Implications for ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Chapter 4. Other Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33How Courts Analyze Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Objective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Subjective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34No “Totality of Conditions” Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34Basic Human Needs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Personal Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Food and Clothing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Sanitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40Chapter 5. Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Excessive Force: Some Contributing Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42Use of Force: The Legal Test and Its Application in Madrid. . . . . . . . . . . . . . . . . . 42Avoiding Use of Excessive Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Tools for Control, Oversight, and Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . 44Videotaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45Post-Incident Medical Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46Chapter 6. The 14th Amendment: Due Process and Placement . . . . . . . . . . . . . . .47Operational Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Due Process, Segregation, and ECU Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48What Process Might Be Due?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

The Traditional View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51A Contrary View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53Due Process and the Quality of Placement Decisions . . . . . . . . . . . . . . . . . . . . . . . 54Meaningful Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Calling Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Thorough Investigation: The Key to Fair Decisions . . . . . . . . . . . . . . . . . . . . . . . . 57Evidentiary Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58Quality of Information: The Institution’s Responsibility . . . . . . . . . . . . . . . . . . . . .60Workload Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Periodic Reviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Gang Membership as Grounds for ECU Placement and Retention . . . . . . . . . . . . . 61Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62ixContentsChapter 7. Access to the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65Supreme Court Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65The Institution’s Obligations Under Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Limits on the Scope of Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66“Actual-Injury” Requirement for Access Litigation . . . . . . . . . . . . . . . . . . . . . . .67Experimenting With Alternative Legal Resource Programs . . . . . . . . . . . . . . . . .68Paging Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Inmates Who Are Unable To Use Legal Materials . . . . . . . . . . . . . . . . . . . . . . . . . . 69Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Chapter 8. The First Amendment: Religion, Speech, and the Press . . . . . . . . . . .71Supreme Court Test for Evaluating First Amendment Restrictions . . . . . . . . . . . . . 71The Religious Land Use and Institutionalized Persons Act . . . . . . . . . . . . . . . . . . . 73Inmate Religious Practices Not Mandated by Faith . . . . . . . . . . . . . . . . . . . . . . . . . 73Sincerity of Beliefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75Closing Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

xiForewordForewordControlling the most dangerous, recalcitrant,aggressive, and antagonistic inmates in a prisonsystem is one of the greatest challenges men andwomen working in corrections face. These inmatesrequire the highest levels of security andcontrol a prison system can muster. Yet, theyremain subject to the protections of theConstitution.In years past, these inmates were locked in “segregation”or “administrative segregation” or, in thejargon of the Yard, “the hole.” These units sometimeswere filthy, rundown, hellholes where brutalitywas common. Such conditions and practicesmade the units ripe for court intervention, whichoften occurred.The “seg unit” that might have housed inmatesclassified as threats to the security of the institutionnext to other inmates serving disciplinarysanctions has, in many states, given way to amuch more sophisticated type of facility: theextended control unit (ECU), a.k.a. the “supermax.”Still devoted to housing the most dangerousoffenders, the ECU bears little physical resemblanceto the “seg unit” of the past. It may be new,clean, and brightly lit, with varying levels ofstructured programming intended to give theinmates a means of demonstrating they can bemoved back to the general prison population.Nevertheless, the ECU remains a source of potentiallyserious litigation. The very strict controlsand sterile living conditions that are inherent inthe ECU concept give the administrator little constitutionalmargin of error.This monograph highlights the major legal concernsassociated with the ECU and offers somesuggestions for addressing them. The intent ofthis monograph is to help “supermax” prisonsoperate in a way that minimizes liability ininmate litigation. However, it does not nor can itsubstitute for legal advice from an agency’s counselwho is familiar with both the prevailing law ina jurisdiction and the specific circumstances ofthe agency’s ECU that are critical to proper applicationof basic legal principles.Morris L. Thigpen, DirectorNational Institute of CorrectionsNovember 2004

xiiiAcknowledgmentsAcknowledgmentsFor various reasons, completing this monographhas not been an easy task. Several people deservecredit and thanks for carrying it through to completion.Chase Riveland began the effort when heasked me to contribute a legal issues chapter tohis NIC monograph, Supermax Prisons: Overviewand General Considerations (NIC, 1999). Thelate Susan Hunter’s vision saw the need for theexpanded product that you now hold.The project stumbled along the way, but RandyCorcoran at NIC invited me to pick it up againand supported the effort through to completion.My editor, Lynn Marble, struggled to rearrangemy garbled legalese into something more organizedand readable.While all of these people helped get the projectthrough from beginning to end, any substantiveerrors in this work, any misstatements, anyinaccurate legal analysis, remain entirely myresponsibility.Bill CollinsNovember 2004

xvExecutive SummaryExecutive SummaryIntroductionExtended control units (ECUs) house a prisonsystem’s most dangerous inmates. The extraordinarilyhigh level of security in ECUs—and therestrictions that go with that security—mean thatthese facilities sometimes function at the limits ofwhat is constitutionally acceptable. It is not surprising,therefore, that ECUs are the target ofinmate litigation.The purpose of this monograph is to help prisonsoperate ultra-high-security facilities in a way thatminimizes liability in inmate litigation. Themonograph covers the background of supermaxprisons and related litigation, and it takes a closelook at case law, prison policies and practices,and “lessons learned” in operational areas thatgive rise to litigation: mental health, delivery ofmedical services, other conditions of confinement,use of force, due process, access to thecourts, and religious practices.

xviSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITChapter 1. BackgroundAlthough known by various names, ECUs all performessentially the same function: providinglong-term segregated housing for inmates whopose the highest security risk. Placement in anECU results from a classification decision, not adisciplinary violation, and that placement usuallyis for an extended period. Not all ECUs are thesame, and conditions within an ECU may dependon an inmate’s status in a level program for earningreturn to less restrictive housing. At thestrictest level, ECU inmates typically live in neartotalisolation and idleness. Because ECU conditionsare extremely restrictive, these facilitiesoperate on the edge of constitutionality and are,therefore, vulnerable to inmate lawsuits.ECUs resemble traditional long-term administrativesegregation units, which have been the subjectof inmate litigation since the 1960s. ECUspecificcase law to date is limited. The firstcase to capture national attention, Madrid v.Gomez, was a wide-ranging attack on operationsat the Pelican Bay Special Housing Unit inCalifornia. In a 138-page opinion rendered in1995, the trial judge in Madrid upheld the fundamentalconcept of the high-security unit but catalogednumerous constitutional violations andoperational problems.Case law trends suggest that mental health issueswill pose the greatest legal challenges to ECUs.Other, more traditional issues include medical care,operational matters such as use of force and dueprocess, and various conditions of confinement.Chapter 2. Mental HealthThe prison’s constitutional obligation (under theEighth Amendment) to provide medical care—i.e., not to be deliberately indifferent to the seriousmedical needs of inmates—underlies theunique mental health-related issues confrontingECUs. At the heart of these issues is a basicdilemma: the level of security and controlrequired to manage the behaviors that bringinmates to the ECU may be harmful to the mentalcondition of some inmates and, therefore, in violationof their constitutional rights.Debate continues about the nature of “SHU[special housing unit] syndrome” and the extentto which conditions of isolation in the ECU maycontribute to deterioration of inmates’ mentalhealth. However, there appears to be generalagreement that ECUs are, to some extent, hazardousto the mental health of inmates with certaintypes of mental conditions. Some of theseinmates should not be placed in an ECU at all,and others may require very careful monitoring inthe ECU and may have to be removed from theECU should their mental condition deteriorate.This concern suggests several preventive steps:■ Screening criteria. Develop criteria to screenout some inmates from admission to the ECUaltogether.■ Screening process. Develop a process foreffectively applying these screening criteria.■ Monitoring. Implement a process for constantlymonitoring the mental status of ECUinmates and criteria for determining whentransfer out of the unit is warranted.

xvii■Removal. Implement a process for transfer-escorted out of the unit to receive medical care.■ring inmates out of the ECU if they meet themonitoring system’s criteria for removal.Quality assurance. Consider developing aquality assurance system or audit process asa strategy for addressing legal challenges toscreening and monitoring procedures.ECUs should also be aware of the custody officer’srole in the medical care delivery system andtake steps to avoid inmate complaints related tothat role. Finally, corrections agencies shoulddetermine how privacy regulations under theHealth Insurance Portability and AccountabilityAct (HIPAA) may affect their ECU operations.Executive Summary■ Mental health care. Provide ongoing diagnosisand treatment for mental health conditions.This is the “standard” level of serviceexpected in any prison, and clearly a requirementin the ECU.■ Staffing. Maintain staffing levels in accordancewith the services to be provided.Operating an ECU mental health programshort-handed is an invitation to litigation andcourt intervention.■ Medication. Be aware of legal constraintsconcerning involuntary medication, and haveprocedures in place for medicating inmateswhose serious mental illness presents a threatto themselves and others.Chapter 3. Medical ServicesProviding medical care to ECU inmates involvesoperational challenges and legal concerns,although the constitutional issues are not as greatas those associated with mental health. Staffingrequirements for delivering medical services arelikely to be greater in the ECU than in other units.Confidentiality of medical information is an issuein the ECU, especially when services are deliveredat the cell front. ECUs need enough custodyofficers to avoid delays when inmates must beChapter 4. Other Conditionsof ConfinementWith regard to certain conditions of confinement(personal safety, food and clothing, shelter, sanitation,and exercise), issues in ECUs differ fromissues in general population settings only as amatter of degree. The basic legal test is the same:do the conditions harm the inmate or present aserious risk of substantial harm, and are officialsdeliberately indifferent to that risk. The ECU’svery strict environment may increase the risk ofharm to some inmates (especially the mentally ill)or for some conditions (e.g., exercise).Intensity and duration of exposure may makedefense of allegedly poor conditions more difficultin ECUs than in general prison settings. Ingeneral settings, the effects of poor conditions incells may be mitigated if inmates are out of theircells most of the day to participate in programs,jobs, and other activities. The inmates may beexposed to the poor conditions only a few hoursper day. But ECU inmates rarely leave their cellsand never leave the unit; if poor conditions exist,the inmates’ exposure is constant. Whereas lackof exercise is rarely an issue for inmates in thegeneral population, it is, to some extent, a fact oflife for ECU inmates.

xviiiSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITAs noted in the Madrid case, conditions in modernECUs, which remove so much of inmates’opportunity for human contact, “may press theouter bounds of what most humans can psychologicallytolerate” and sometimes exceed thosebounds for some inmates. This observation, andits implications for the conditions discussed inchapter 4, should be acknowledged by officials inplanning and operating ECUs.Chapter 5. Use of ForceUse-of-force issues are bound to arise in facilitiesthat house the most violent inmates in a prisonsystem. Reliably detecting improper use of forceand responding effectively when it occurs may bethe greatest legal and management challenges inproperly operating an ECU. If management letsuse of force get out of hand, the consequences—patterns of abuse and a code of silence amongstaff—are difficult to correct.Chapter 6. The 14thAmendment: Due Processand PlacementCourts are uncertain as to whether placement inlong-term confinement under the very restrictiveconditions associated with the typical ECUimposes an atypical deprivation on an inmate andtherefore requires due process protections. Untilthe courts speak more clearly on whether andwhat kind of due process is required in placementdecisions, corrections agencies would be prudentto provide basic procedural protections that arelikely to meet a court’s requirements. Such protectionsalso serve prison officials’ own interestsin having an effective placement decisionmakingprocess. These protections include the following:■Notify the inmate of the proposed placement.In the notice, explain the reason for theplacement.Proactive management steps are required toensure that ECUs avoid use of excessive forceand meet the legal test courts use in evaluatingforce incidents. An institution should be able todefend its uses of force if it lays a proper foundationthrough policies, training, supervision, anddocumentation. Staff involved in force incidentsmust write accurate reports of what happened.Videotapes and post-incident medical examinationsare also useful. Thorough documentationhas management as well as evidentiary uses. Ifuse of force is not properly controlled and a patternof misuse develops—along with a code ofsilence among staff about incidents of abuse—management has failed.■■■■Give the inmate an opportunity to respondto the notice in an informal, nonadversarialmeeting with officials.Base placement decisions on reliably determinedfacts. In the nonadversarial context ofthe placement decision, “reliably determined”focuses more on the institution’s investigatoryprocess than on resolution of factual disputesat the meeting with the inmate.Determine the reliability of informants andthe information they provide.Conduct periodic reviews to determine theneed for continued segregation. Give theinmate an opportunity to provide input forretention decisions.

If a corrections agency has such procedures inplace, it has two choices in responding to lawsuitsthat claim deprivation of due process in segregationplacement and retention decisions. It canargue, under the Supreme Court’s 1995 decisionin Sandin v. Conner, that no due process protectionsapply. Or it can point to its procedures asproof that protections were provided. Even if thecourts finally agree that no due process requirementsapply to these decisions, prisons will benefitfrom having a systematic, fair, fact-baseddecisionmaking process.Chapter 7. Access to theCourtsECU inmates have the same fundamental rightof access to the courts as other inmates. ECUinmates tend to be very litigious, and institutionsshould expect them to challenge any program thatdoes not provide full access to a complete lawlibrary or extensive assistance from personstrained in the law. However, under the SupremeCourt’s 1996 decision in Lewis v. Casey, inmatesmust demonstrate actual injury before they canhave standing to raise an access-to-courts claim.The prison’s affirmative duty is to provide somelevel and form of resources to support, in a meaningfulway, inmates’ right of access to the courts.Traditional paging systems (through whichinmates request materials to be delivered tothem), once generally found inadequate by thecourts, may pass muster under Lewis if the institutioncan demonstrate that the system worksproperly. However, any library-based system doesnot meet the needs of inmates who cannot readEnglish; these inmates require some form of legaladvice.In Lewis, the Supreme Court invites prison administratorsto experiment with how they fulfilltheir duty to provide meaningful legal resources.Such experiments might include systems that useCD–ROM or Internet technology. Any system aprison uses to provide legal resources in the ECUis sure to be challenged at some point.Chapter 8. The FirstAmendment: Religion,Speech, and the PressThe restrictive environment of the ECU can raiseFirst Amendment issues. In considering inmates’demands regarding religious and other types ofactivities, corrections officials should be aware ofhow the courts may review their response.In the 1987 Turner v. Safely case, the SupremeCourt defined a four-part test for evaluatingwhether a particular First Amendment restrictionis justified. Institutions have not found it difficultto meet this test, which basically requires a reasonableconnection between a restriction (e.g., notallowing ECU inmates to attend group religiousservices) and a legitimate penological interest(e.g., security). In 2000, Congress passed theReligious Land Use and Institutionalized PersonsAct, which imposes a more stringent test withregard to restrictions on inmate religious practices:to justify such a restriction, an institutionmust show why a less restrictive alternative wasnot possible. In general, an institution’s defenseof a challenged restriction should not rely solelyon an argument that a particular practice is notmandated by the inmate’s faith or that theinmate’s religious beliefs are not sincerely held.xixExecutive Summary

xxSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITClosing ThoughtsThe concept of the ECU—the “supermaxprison”—is now embedded in American corrections.A major challenge for agencies that operatethese facilities lies in recognizing just how manylegal issues can arise and supervising operationsaccordingly.The most significant issues concern inmates whoare mentally ill (or whose behavior suggests theymay be mentally ill). Should some inmates neverbe placed in an ECU? Does living in an ECUactually harm the mental status of some inmates?Where does a prison system place inmates whopresent a significant security risk but cannot livein an ECU?Even setting these issues aside, ECUs may be themost difficult type of prison to operate, in that theinmates they house and the management strategiesused to control them give rise to a prison system’smost concentrated, intense legal concerns.Services that are especially critical from a legalperspective—e.g., health care and access to thecourts—are difficult to deliver in ECUs, and useof force is an ever-present issue.The keys to avoiding legal pitfalls and reducingliability exposure are the same in the ECU as anywhereelse in the prison system:■ An informed assessment of the needs andcharacteristics of the target population.■ A clearly defined mission and a comprehensiveplan of operation.■ Careful development of policies and procedures,with a close eye to legal issues.■ Funding and staffing commensurate with theidentified needs and mission.■ Training to promote a skillful and knowledgeableworkforce.■ Perhaps most importantly: commitment onthe part of supervisors and managers toensuring humane and legal operations.If these factors are ignored, the end result maywell be intervention by the courts.

1IntroductionIntroduction“Supermax” prisons—fad, trend, orwise investment?Thus began Chase Riveland’s earliermonograph on prisons intended to houseinmates who pose a prison system’s highestsecurity risks. 1To those words, one can add “source of litigationand controversy.”Long before the name “supermax” was coined,prison systems maintained long-term, high-securitysegregation units to house inmates unsuitable forgeneral population settings. Conditions and practicesin those units have been the subject oflitigation and occasionally substantial courtinvolvement since the earliest days of the “inmaterights” movement in the late 1960s. Conditionshave changed a great deal since these early caseswere litigated. However, modern supermax prisonssometimes function at the limits of what isconstitutionally acceptable.1Chase Riveland, Supermax Prisons: Overview andGeneral Considerations, Washington, DC: U.S. Departmentof Justice, National Institute of Corrections,1999.

2Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITAlthough operating models for supermax prisonsvary, the extraordinarily high level of securityrequired—and the restrictions that go with thatsecurity—mean that, even under the best of circumstances,these facilities operate very close tothe edge of what the Constitution allows. Manyinmates housed in supermax prisons have avolatile and dangerous nature, making violentconfrontations with staff a common threat. Humanrights organizations have been quick to criticize thevery concept of the supermax prison. 2 Given thesecircumstances, it is not surprising that modernsupermax prisons are the target of litigation,sometimes brought by one inmate over a singleincident, sometimes brought by a class of inmates.At the time of Riveland’s monograph, only onemajor supermax case had been litigated to a conclusion.Another had been settled. As these wordsare written in 2004, still only a handful of majorcases have been concluded, and the courts ofappeal have provided virtually no direct guidance.However, it is apparent that the major issueemerging in supermax litigation relates to mentalhealth: Are there categories of inmates who,because of their mental condition, cannot behoused in the supermax environment? Are conditionsso restrictive and debilitating that they causeserious mental health problems for some inmatesand necessitate removal from the supermaxenvironment?Two district court decisions discussed in thefollowing pages have accepted both of thesepremises. The decisions impose screening requirementsto prevent some inmates from beingtransferred to an ultra-high-security setting andmonitoring requirements to allow for removal ofinmates whose mental state may deteriorate whilethey are in such a setting. Neither of these decisionshas been reviewed by a court of appeals.These holdings raise an obvious question: If someinmates who require housing at the highest levelof security cannot be placed or retained in thetypical supermax environment, what sort of settingcan accommodate both the safety and securityrisks these inmates present and their seriousmental health needs. The California Departmentof Corrections, currently under a “screening/monitoring” order because of litigation at thePelican Bay Special Housing Unit (SHU), respondedby creating psychiatric security units inits prison system.Mental health issues aside, the volatile nature ofsupermax inmates and the very restrictive conditionsof supermax facilities can lead to a varietyof more “traditional” legal issues such as thoserelated to delivery of basic medical care and useof force. Avoiding liability when these issues giverise to litigation requires a combination of carefullydeveloped policies, adequate funding, and close,strong supervision of facility operations.The purpose of this monograph is to help prisonsoperate ultra-high-security facilities in a way thatminimizes liability in inmate litigation. The firstchapter provides background information onsupermax prisons and the history of litigationconcerning them. Subsequent chapters take aclose look at case law, prison policies and practices,and “lessons learned” in seven operationalareas that raise constitutional issues for supermaxfacilities:2Roy D. King, “The Rise and Rise of Supermax: An American Solution in Search of a Problem,” Punishment andSociety 1(2):163–184, 1999.

3■Mental health.■Use of force.■■Delivery of medical services.Other conditions of confinement (personal■■Due process in placement/retention decisions.Inmate access to the courts.Introductionsafety, food and clothing, shelter, sanitation,and exercise).■Religious practices.

5BackgroundCHAPTER1BackgroundThis chapter first outlines the definingcharacteristics of supermax facilities. Itthen traces the history of litigation involvinglong-term segregation of inmates generallyand segregation in supermax facilities specifically.Defining the SupermaxWhat is a “supermax” prison? Riveland refers tothe term as the “generic descriptor” for a relativelynew type of maximum-security prison that isoften freestanding. 3 The media, the public, andsome corrections departments often use “supermax,”but these facilities are also known as specialhousing units (SHUs), special managementunits (SMUs), intensive management units(IMUs), or “maxi-maxis.” This monograph generallyuses “extended control units” (ECUs), thename chosen by Riveland.Regardless of what they are called, these unitshave basically the same function: to provide longterm,segregated housing for inmates classifiedas the highest security risks in a state’s prison3Riveland, Supermax Prisons: Overview and GeneralConsiderations, p. 5.

6Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITsystem. The phrase “worst of the worst” has beenused to characterize the ECU population.In many respects, the ECU resembles the traditionallong-term administrative segregation unit,which typically remains in a prison system whenan ECU is introduced. The ECU takes the mostchallenging inmates from the administrative segregationunit. It is, in a sense, a “super” administrativesegregation unit.Placement of an inmate in an ECU generallyresults from a classification decision, not a disciplinaryviolation. The assumption underlying anECU placement is that it will be for a relativelylong time. Even in ECUs that include a programof levels or steps by which inmates can earn theirway back to less restrictive housing, progressthrough most of the levels takes several months orlonger. An inmate placed in an ECU is likely toremain there for at least 12–24 months, if notlonger.overclassifying inmates into very expensiveprison beds.All ECUs are not the same, and conditions forindividual inmates within an ECU may depend onthe inmate’s level of progress toward removalfrom the unit. Some common characteristics ofECUs at the strictest levels include the following:■ Inmates are locked up 22 to 23 hours per day.■ Inmates have very limited contact with otherpeople—staff or other inmates.■ Exercise is limited to no more than 1 hour aday, 5 days a week.■ As few as three showers per week areallowed.■ Commissary, visiting, telephone, and libraryprivileges are much more limited than thoseavailable to the general prison population.ECUs are intended to hold inmates who requirethe highest level of security, but the percentage ofinmates who fit this category varies widely fromstate to state. A survey conducted by the NationalInstitute of Corrections in 1996 found that 28states and the Federal Bureau of Prisons had orwere developing “supermax” housing as definedby the survey. 4 Of these 29 systems, 11 indicatedthat 1 percent or less of all inmates were in thesupermax category, 7 indicated 5–8 percent, and 1state said that 20 percent of its inmates requiredsupermax housing. The survey findings raise thequestion of whether some jurisdictions may be■■Inmates have little or no access to work, religiousactivity, rehabilitation, or other programsor activities to occupy time. Almostcomplete idleness is the norm. Any availableprograms or services are usually offered inthe cell or at the cell front. Some facilitiesnow offer limited programming via closedcircuit TV.When inmates leave their cells, they are inrestraints and usually are escorted by morethan one officer. If an escort is unavailable,the out-of-cell opportunity may be lost.4“. . . a free-standing facility or a distinct unit within a facility that provides for the management and secure control ofinmates who have been officially designated as exhibiting violent or serious and disruptive behavior while incarcerated.Such inmates have been determined to be a threat to safety and security in traditional high-security facilities, and theirbehavior can be controlled only by separation, restricted movement, and limited direct access to staff and other inmates.”National Institute of Corrections (NIC), Supermax Housing: A Survey of Current Practice, Washington, DC: U.S.Department of Justice, NIC, 1997, p. 1.

7Background■■■The opportunity to earn good time for work,program participation, or behavior is limitedor eliminated.No TVs or radios are allowed.Strip searches are common.In facilities with a level system, some restrictionsmay ease as an inmate progresses through the levels.Out-of-cell activities increase, and the inmategains privileges. However, the inmate may nothave to step far out of line to be returned to alower level, and it typically takes a long time tomove back up through the system’s levels.In some ECUs, the cells have no windows. If thecell also has a solid front door, the inmate has littleor no exposure to natural light. Some lightingin the cell may remain on all night. Any outdoorexercise usually takes place in a high-walled boxwith only the top open to the sky or in smallchain-link enclosures sometimes referred to as“dog runs.” Inmates typically exercise alone, orperhaps with one other inmate.Some ECUs now offer group therapy or discussionsessions. Each participant is placed in anindividual holding unit (like a large telephonebooth). The participants can talk directly to thegroup leader and each other without having physicalaccess to anyone in the group.Limitations on staff-inmate contact in ECUs varyfrom facility to facility, even for inmates at themost restrictive level. Some ECUs essentially isolateinmates (see sidebar, “Life at Pelican Bay”).Other ECUs, while keeping inmates locked intheir cells most of the time, may encouragegreater cell-front contact between staff andinmates. 5 As the discussion in chapter 2 demonstrates,the frequency and nature of staff contactmay be an important consideration in evaluatingthe effect of ECU conditions on inmates’ mentalhealth.Life at Pelican BayPelican Bay State Prison opened in 1989 tohouse California’s most serious criminaloffenders. In a major case involving PelicanBay’s SHU, the judge wrote about the extent ofsocial isolation. a Inmates lived in single cells. Theircells had no windows, although skylights affordedsome natural light. The interior was designed toreduce visual stimulation. Inmates exercised alone.Doors to the exercise area opened electronically,and inmates stripped naked in front of a controlbooth. The defendants’ expert testified that theSHU “attempted to reduce physical contactbetween inmates and staff to the extent possible. . . . ” b Another expert witness, a former federalwarden, described the conditions as “virtualtotal deprivation, including, insofar as possible,deprivation of human contact.” ca Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).b Id. at 1229.c Id. at 1230.5NIC, Supermax Housing: A Survey of Current Practice, p. 4.

8Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITLiving on theConstitutionalEdge: A Reviewof Case LawThe fact that an ECU’s extremelyrestrictive conditionsplace it at the very edge ofwhat is constitutionally permissiblesuggests that, withproperly developed policiesand procedures, it can functionin a constitutionally acceptablefashion. However, if courtscontinue recent trends, today’sECU may inherently step over the constitutionaledge with regard to mental health issues for someinmates.Early Litigation About Long-TermSegregated HousingBefore supermax prisons or extended controlunits were “invented,” long-term administrativesegregation units housed inmates who could notlive safely in less restrictive settings. Conditionsand practices in these units were the subject ofsome of the earliest “inmate rights” litigation.One of the first examples of court intervention inprison operations came more than 35 years ago ina California federal district court. The 1966 caseof Jordan v. Fitzharris arose from an inmate’sconfinement in a punitive segregation “strip cell”Regardless of thename given tolong-termsegregation units,inmates placed inthese units willchallenge the livingconditions and thelimitations onrights andprivileges.in California’s Soledad Prison. 6The court summarized the conditionsas being “of a shockingand debased nature [thatrequired court intervention] torestore the primal rules of acivilized community….” 7 Inthis case, officials concededthat they disliked confininginmates in the conditions thecourt found shocking but didnot know what else to do withinmates like the plaintiff.Inmate litigation related toadministrative segregation units continued in the1970s and 1980s. During this period, the courtsaddressed issues such as religious observance,due process requirements, mental health services,and conditions of confinement. 8 During the 1990s,as state prison systems began to introduce ECUs,evolving case law regarding inmate rights mayhave changed the legal tests that courts apply inevaluating prison conditions or practices. 9Regardless of the name given to long-term segregationunits, inmates placed in these units willchallenge the living conditions and the limitationson rights and privileges. As the following reviewof ECU-specific litigation shows, the courts willintervene when they find violations of inmates’rights.6Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).7Id. at 679.8See Giampetruzzi v. Malcom, 406 F. Supp. 836 (S.D.N.Y. 1975), requiring that inmates be allowed to hold weekly religiousservices; Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976), dealing with due process requirements for placement;Nelson v. Collins, 455 F. Supp. 727 (M.D. Md. 1978), relating to mental health services; Toussaint v. McCarthy,801 F.2d 1080 (9th Cir. 1986), dealing with due process requirements for placement and periodic review and limiting theprison master’s role in overseeing placement decisions; and Davenport v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987),ordering that inmates be allowed three showers per week and 5 hours of exercise per week.9See Wilson v. Seiter, 501 U.S. 294 (1991), ending the “totality of conditions” approach to analyzing conditions of confinement;and Sandin v. Conner, 515 U.S. 472 (1995), changing the method by which courts determine whether decisionsrelating to inmates are protected by due process.

9BackgroundLitigation About ECUsReported decisions regarding conditions and practicesin ECUs are few. The first case that receivednational attention was the 1995 Madrid v. Gomezdecision involving the SHU at California’s PelicanBay State Prison. 10 In 2001, the SupermaxCorrectional Institution (renamed the SecureProgram Facility in 2002) in Boscobel, Wisconsin,was the subject of a similar suit, Jones’El v.Berge. 11In mid-2003, the New Mexico Department ofCorrections settled a lawsuit concerning solitaryconfinement for inmates at the highest custodylevels. The inmates’ lawyers said that the settlement“removes people with mental disorders(from solitary confinement), provides treatmentand makes solitary confinement more tolerable.” 12The settlement also relaxed some of the stricterconditions of confinement.Ohio litigated issues concerning its maximumcustodyfacility, the Ohio State Penitentiary, in a2002 case, Austin v. Wilkinson. 13 In Taifa v. Bayh,litigation about conditions and practices in anIndiana extended control facility that opened in1991 resulted in a consent decree. 14Taifa and Madrid are noteworthy in that bothcases were filed within a year or so after the prisonsopened, which means that the alleged problemswere present in the facilities virtually fromthe day they opened. After a long and bitterlycontested trial, the court in Madrid ordered reliefregarding:■ Basic medical and mental health services.■ Use of force.■ Placement of certain groups of inmates in theECU.The court refused to grant relief regarding theprocedures California used to place inmates in thefacility or to remove them from it. Although thecourt held that conditions were constitutionallyintolerable for some mentally ill inmates, it rejectedplaintiffs’ argument that the entire conceptof the facility was inherently unconstitutional.In Taifa, the defendants agreed to an order thataddressed:■ Assignment to and transfer out of the unit.■ Expanded provisions for medical care.■ Mandatory psychiatric examinations for allincoming inmates.■ Policy regarding the use of force.The Taifa order also dealt with other issues,including commissary privileges, access to radiosand TVs, expanded visiting and phone privileges,additional reading materials and personal property,less night lighting in cells, improved bedding,increased educational opportunities, access to asubstance abuse program, and improved grievanceprocedures.10Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).11Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).12Steve Terrell, “Corrections Department Settles Prison Lawsuit,” The New Mexican, May 22, 2003.13Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D. Ohio 2002), affirmed in part, reversed in part, 372 F.3d 346 (6th Cir.2004).14Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994). For a discussion of the litigation and the prison in question, see ColdStorage: Super-Maximum Security Confinement in Indiana, published in 1997 by Human Rights Watch, New York, NY.

10Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITMadrid was a sweeping attack on the operation ofPelican Bay. The complaint challenged everythingfrom the fundamental concept of the ECU prisonto a variety of operational concerns. The scopeand seriousness of the lawsuitare reflected in the massive138-page opinion the trialjudge wrote. While upholdingsome aspects of the operationof Pelican Bay, including thefundamental concept of theunit’s high-security nature, thejudge commented that conditionsin the facility “may pressthe outer bounds of what mosthumans can psychologicallytolerate . . . . ” 15Much of the Madrid opinion isa detailed catalog of what can go wrong with theoperation of this type of prison. The opinionchronicles errors in planning, initial staffing,training, and supervision. It finds constitutionalviolations regarding excessive force, medical andmental health care, and conditions of confinementfor some inmates.The Wisconsin (Jones’El) and Ohio (Austin) decisionsboth touch on a variety of issues, but theWisconsin case is particularly noteworthy becauseof its focus on problems with mentally ill inmatesin ECUs—a major issue in Madrid. The Ohiocase takes a controversial stand on the levels ofdue process that must be afforded inmates as partof the ECU admission process.None of the reported decisions and settlementsdiscussed above comes from a court of appeal.All are federal district court decisions. MadridGiven the generallack of appellatedecisions, a definitivediscussion ofwhat courts mayrequire of ECUs isa bit speculative.was not appealed. (The Austin decision recentlywas largely affirmed on appeal; see discussion inchapter 6.) Given the general lack of appellatedecisions, a definitive discussion of what courtsmay require of ECUs is a bitspeculative. However, trialcourt decisions to date show atrend indicative of issues likelyto arise around ECUs, includingthe following:■■■■Whether inmates with certainmental illnesses mustbe excluded from ECUplacement.■ The extent to which conditionsin the ECU may causemental illness in some inmates,and the ongoing screeningprocess that must exist to ensure that theseinmates are removed if their mental conditiondeteriorates past a certain point.Adequacy of medical care.Operational issues, such as the use of force,that may be tied closely to the quality of stafftraining and supervision.Specific conditions in ECUs, such as celllighting.Of these issues, those regarding mental health arethe most serious and are also unique to the ECU.The mental health issues raise the fundamentalquestion of whether certain inmates can even beplaced in an ECU and/or held there for an extendedperiod of time. Other issues, such as medicalcare, use of force, and conditions of confinement,15Madrid, 889 F. Supp. at 1267.

are more “traditional,” in that they have long beencommon subjects of inmate litigation in general.SummaryAlthough known by various names, ECUs all performessentially the same function: providinglong-term segregated housing for inmates whopose the highest security risk. Placement in anECU results from a classification decision, not adisciplinary violation, and that placement usuallyis for an extended period. Not all ECUs are thesame, and conditions within an ECU may dependon an inmate’s status in a level program forearning return to less restrictive housing. At thestrictest level, ECU inmates typically live in neartotalisolation and idleness. Because ECU conditionsare extremely restrictive, these facilitiesoperate on the edge of constitutionality and are,therefore, vulnerable to inmate lawsuits.ECUs resemble traditional long-term administrativesegregation units, which have been thesubject of inmate litigation since the 1960s. ECUspecificcase law to date is limited. The first caseto capture national attention, Madrid v. Gomez,was a wide-ranging attack on operations at thePelican Bay SHU in California. In a 138-pageopinion, the trial judge in Madrid upheld the fundamentalconcept of the high-security unit butcataloged numerous constitutional violations andoperational problems.Case law trends suggest that mental health issueswill pose the greatest legal challenges to ECUs.Other, more traditional issues include medicalcare, operational matters such as use of force, andvarious conditions of confinement.11Background

CHAPTER13Mental Health2Mental HealthEighth Amendment issues related to mentalhealth present unique challenges forECUs. It may even be constitutionallyimpossible to keep certain inmates in the ECU,and it may not be enough for institutions simplyto say “we deliver mental health care within ourfour walls.”This chapter focuses on these issues. It considersthe possibility that the ECU environment canactually cause an inmate’s mental health to deteriorate.It also looks at mental status as a factor inECU placement and removal. Before turning tothese specific issues, the chapter discusses generallegal requirements for providing medical care toprison inmates.Providing Medical Care inPrisons: Guidance From theCourtsIn 1976, in Estelle v. Gamble, the Supreme Courtmade it clear that the prison has a constitutionalduty to provide medical care to inmates: “[O]fficialsmay not be deliberately indifferent to

14Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT[inmate] serious medical needs.” 16 This protectionextends to ECU inmates. The duty from Estelleapplies to mental health needs of inmates, as wellas their physical health needs. 17 Although there isno unique legal test for assessing medical or mentalhealth care in ECUs, these facilities can haveunique problems in delivering adequate care.What Is a “Serious Medical Need”?Courts use various definitions of “serious medicalneed.” These definitions are inherently subjective,and all are somewhat vague. Probably the clearesttest says that a need is “serious” when a doctor orother medical professional has diagnosed a conditionas “mandating treatment [or the condition issuch that] even a lay person would easily recognizethe necessity of a doctor’s attention.” 18But what if a medical professional has not seenan inmate to make a diagnosis, and the inmate’scondition is not obvious to a lay person? TheNinth Circuit has said a condition is serious iffailure to treat it “could result in further significantinjury or the unnecessary and wanton inflictionof pain.” 19 The court elaborated:the existence of an injury that a reasonabledoctor or patient would feelimportant and worthy of comment ortreatment, the presence of a medicalcondition that significantly affects aninmate’s daily activities, or the existenceof chronic and substantial pain…are examples of indications thata prisoner has a “serious” need fortreatment. 20Thus, general factors relevant in defining seriousmedical need include the following:■ Presence of ongoing pain.■ Diagnosis by a competent medicalprofessional.■ Threat that the condition will worsen if nottreated.■ Problem obvious to a lay person.Many physical conditions are easily categorizedusing one or more of these criteria. Anyone cansee that a broken bone is serious. Medical professionalswill usually agree on many, if not most,diagnoses. But when it comes to mental conditions,gray areas are more likely. In The MentallyDisordered Inmate and the Law, Fred Cohenacknowledges this and cites the following definitionadopted by the Ohio Department of Correctionsas part of a consent decree:Serious mental illness means a substantialdisorder of thought or moodwhich significantly impairs judgment,behavior, capacity to recognize realityor cope with the ordinary demands oflife within the prison environment andis manifested by substantial pain ordisability. Serious mental illness requiresa mental diagnosis, prognosis,and treatment, as appropriate, by mentalhealth staff. 2116Estelle v. Gamble, 429 U.S. 97 (1976).17Fred Cohen, The Mentally Disordered Inmate and the Law, Kingston, NJ: Civic Research Institute, 1998, p. 4-3. Thisencyclopedic work is an excellent resource for use in analyzing legal requirements applicable to mentally ill inmates andthe related practical demands on corrections agencies.18Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176 (11th Cir. 1994); Gaudreault v. Municipality of Salem,923 F.2d 203 (1st Cir. 1990).19McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992).20Id. at 1059–1060.21Cohen, The Mentally Disordered Inmate and the Law, p. 2-6, n. 5.

Cohen also acknowledges that“there simply is not one cleardefinition or predictive certaintyas to what is or is not a seriousmental disorder…even[diagnoses like schizophreniaor bipolar disorders] are oftenin the eye of the beholder.” 22However, regardless of how acourt chooses to define “serious,”it is safe to assume that atleast some ECU inmates willhave mental health problems that require professionalattention.What Is “Deliberate Indifference”?The concept of deliberate indifference, althoughsomewhat vague, is clearer than the concept ofserious medical need. In 1994, the Supreme Courtdefined “deliberate indifference” as an official’sactual knowledge of an excessive risk to thehealth or safety of an inmate, combined with theofficial’s disregard of that risk; i.e., the officialfails to make some sort of reasonable response tothe known risk. 23 Note that deliberate indifferenceembraces the risk of harm. Inmates need not havedied or gotten sick for a court to find deliberateindifference if conditions create a substantial riskof serious harm. 24Prison officials have long recognized that physicallyill or injured inmates sometimes must betreated in hospitals outside the prison. If aninmate needs treatment the prison cannot providewithin its walls, not moving the inmate to theappropriate facility would clearly constituteNot surprisingly,the types ofbehaviors thatmake placement inan ECU likelyare commonlyassociated withmental illness.deliberate indifference. ECUadministrators might bemoanthe cost of transporting aninmate to a hospital for necessarysurgery and providingsecurity while the inmate ishospitalized, but they wouldnot argue that security concernsjustify not providing thesurgery or performing it in amakeshift facility in the ECU.It is becoming increasinglyclear that the same principle applies to some ECUinmates who are mentally ill: they cannot becared for in the ECU and must be moved to anenvironment set up for mental health treatment.Mental Health Issues inthe ECUNot surprisingly, the types of behaviors that makeplacement in an ECU likely are commonly associatedwith mental illness. In the Madrid trial, thewarden of Pelican Bay testified that “by virtue ofits mission, Pelican Bay now houses most of thepsychiatrically disabled inmates who have a historyof violent and assaultive behavior.” 25 A mentalhealth expert who testified on behalf of thedefendants said that “inmates in an ECU includethose with a borderline personality disorder,[who] when they’re locked up (in segregation)may have a tendency to experience some transientpsychoses, which means just a brief psychosisthat quickly resolves itself when they’re removedfrom the lockdown situation.” 26 A legislative auditof the Wisconsin supermax facility in Boscobel15Mental Health22Ibid., p. 4-33. The phrase “often in the eye of the beholder” has particular significance for litigation in which the resultis heavily influenced by expert testimony.23Farmer v. Brennan, 511 U.S. 825 (1994).24Helling v. McKinney, 509 U.S. 2475 (1993).25Madrid, 889 F. Supp. at 1215.26Id. at 1216.

16Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITfound that, in 2001, 15 percent of the facility’sinmates suffered from mental illness, as indicatedby their receiving psychotropic medications. 27An ECU is the predictable end-of-the-line settingfor the inmate who acts out, creates disturbances,violates disciplinary rules, and constantly causesproblems. Mental illness may contribute to thistype of inappropriate, disruptive, and potentiallydangerous behavior. Prisons will want to sendsuch inmates elsewhere, to get rid of a source oftrouble. This may be particularly true if the prisonhas limited mental health care resources and isnot equipped to house inmates in segregated confinementfor long periods of time. Absent someother alternative, strong pressures will developin a prison system to transfer mentally troubled,acting-out inmates to increasingly securefacilities—a path leading inevitably to the supermaxunit, if one exists.In the Grassian study, each inmate was interviewedby one of two psychiatrists for approximately30 minutes. The study included a reviewof the inmates’ medical and confinement recordsbut not a full clinical history. Dr. Grassian concludedthat several inmates displayed one or morepsychiatric symptoms. In a subsequent article, 30he combined his observations at Walpole with areview of recent literature and earlier (late 19thand early 20th century) German reports on theeffects of solitary confinement to define asyndrome associated with solitary confinement.This syndrome included the following symptoms:■ Massive, free-floating anxiety.■ Hyperresponsivity to external stimuli.■ Perceptual distortions and hallucinations inmultiple spheres (auditory, visual, olfactory).This scenario contains a dilemma. The very environmentthat offers the security and controlappropriate for dealing with the type of behaviorsuch inmates exhibit may make their mental conditionworse and may result in a violation of theEighth Amendment.SHU Syndrome“SHU syndrome” is a name given to what one ofthe concept’s proponents describes as “a littleknown form of psychiatric decompensation”caused by conditions in the ECU unit. 28 The conceptfinds its origin in a 1983 article by Dr. StuartGrassian, based on his examination of 14 inmateswho had brought a class action regarding solitaryconfinement at Walpole State Prison inMassachusetts. 29■■■■■Derealization experiences (surroundings seemunreal and unfamiliar).Difficulties with concentration and memory.Acute confusional states, at times associatedwith dissociative features, mutism, and subsequentpartial amnesia for those events.Emergence of fantasies that are primitive,ego-dystonic (i.e., incompatible with one’sself-concept), and aggressive.Ideas of reference (i.e., perceiving oneself asthe center of attention) and persecutoryideation, at times reaching delusionalproportions.27Jones’El, 164 F. Supp. 2d at 1115.28Terry A. Kupers, “The SHU Syndrome and Community Mental Health,” Community Psychiatrist, summer 1998.29Stuart Grassian, “Psychopathological Effects of Solitary Confinement,” American Journal of Psychiatry140:1450–1454, 1983.30Stuart Grassian and Nancy Friedman, “Effects of Sensory Deprivation in Psychiatric Seclusion and SolitaryConfinement,” International Journal of Law and Psychiatry 8:49–75, 1986.

■■Motor excitement, oftenassociated with sudden,violent, destructive, or selfmutilatoryoutbursts.Rapid subsidence ofsymptoms upon terminationof isolation.Although Grassian did not usethe phrase, the syndrome hedescribed has become knownas “SHU syndrome.” 31The list of symptoms Grassianassociated with the syndromehas expanded. “ . . . [i]t is madeup of official diagnoses such asparanoid delusional disorder,dissociative disorder, schizophrenia and panic disorder.”32 “The list of the most common symptomsare the ones identified by Grassian, though Dr.Kupers [an expert on SHU syndrome] does notbelieve that someone with SHU syndrome mustexperience any of the Grassian symptoms and canexperience others.” 33SHU syndrome has not been accepted in theAmerican Psychiatric Association’s Diagnosticand Statistical Manual of Mental Disorders–Fourth Edition (DSM–IV), and mental health professionalsdisagree as to whether it is an “accepteddiagnostic classification [or] merely aThe important factin a discussion oflegal issues forECUs is that at leasttwo courts havespecificallyrecognized thatconditions ofconfinement in anECU can lead toserious mentalinjury for someinmates.concept…[, i.e.,] a set ofsymptoms and the existingdiagnoses describe the phenomenon.”34 Regardless of scientificor professional questionsabout SHU syndrome, however,the important fact in a discussionof legal issues for ECUsis that at least two courts havespecifically recognized thatconditions of confinement inan ECU can lead to seriousmental injury for someinmates.The judge in the Madrid case(involving the Pelican BaySHU in California) noted thefollowing:Defendants’ expert Dr. Dvoskin agreedthat segregation may exacerbate preexistingmental illness and that inmateswho are in acute psychiatric distress orsuicidal depressions should not beplaced in the SHU, absent a few “very,very rare exceptions.”As defendants’ expert conceded,there are certain people who simply“can[no]t handle” a place like thePelican Bay SHU. Persons at a higherrisk of mentally deteriorating in the17Mental Health31SHU syndrome has been the subject of a number of articles, primarily in law reviews or other law-related publications.A Google search of the Web did not reveal professional mental health literature on the topic. See Craig Haney and MonaLynch, “Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” NYUReview of Law and Social Change 23:477, 1977; and Comer v. Stewart, 230 F. Supp. 2d 1016, 1025, n. 18 (D. Ariz.2002)32Jones’El, 164 F. Supp. 2d at 1096, 1101.33Comer, 230 F. Supp. 2d at 1016, 1056. Comer involved litigation concerning an Arizona death-row inmate who wantedto abandon his legal appeals and face execution. His legal counsel challenged his competency to make this decision,arguing among other things that he was suffering from SHU syndrome. The court accepted that an inmate could sufferfrom the affliction, but after reviewing extensive expert testimony, decided that Comer did not.34Id. at 1055, quoting a Federal Bureau of Prisons psychiatrist.

18Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITSHU are those who suffer from priorpsychiatric problems, borderline personalitydisorder, brain damage ormental retardation, or an impulseriddenpersonality. 35The judge in the Jones’El case (involving theWisconsin SHU) was more specific:Confinement in a supermaximum securityprison such as Supermax is knownto cause severe psychiatric morbidity,disability, suffering and mortality.Prisoners in segregated housing unitswho have no history of serious mentalillness and who are not prone to psychiatricdecompensation (breakdown)often develop a constellation of symptomsknown as “[Segregated HousingUnit] Syndrome.” Although SHUSyndrome is not an officially recognizeddiagnostic category, it is made upof official diagnoses such as paranoiddelusional disorder, dissociative disorder,schizophrenia and panic disorder.The extremely isolating conditions insupermaximum confinement causeSHU Syndrome in relatively healthyprisoners who have histories of seriousmental illness, as well as prisoners whohave never suffered a breakdown in thepast but are prone to break down whenthe stress and trauma become exceptionallysevere. Many prisoners are notcapable of maintaining their sanity insuch an extreme and stressful environment;a high number attempt suicide. 36(Emphasis added.)Absent court decisions to the contrary, these findingsin Madrid and Jones’El virtually compel theconclusion that corrections departments needeffective screening procedures to prevent certaininmates from ever entering the ECU and equallyeffective monitoring procedures to identify ECUinmates whose mental state is deteriorating andthen move them to a more appropriate environment.If a department is unwilling to accept thisprinciple and finds itself the subject of litigationbased on the concept of SHU syndrome, it mustbe prepared to convince the judge that its ECUenvironment does not have a negative impact oninmates’ mental health.An alternative to focusing on legal defense strategieswould, of course, be to design and operatethe ECU in such a way as to minimize factorsthat arguably cause the mental deterioration thateven the defendants’ expert in Madrid concededtook place for some inmates. This approachwould require such things as reducing the level ofphysical and social isolation characteristic of themodern ECU—indeed perhaps restructuring theentire concept of the facility.Who Should Not Go to the ECU?In Madrid, the court identified categories of mentallyill inmates who could not be placed in thePelican Bay SHU. The list initially includedinmates in the following categories:■ Already mentally ill.■ Borderline personality disorders.■ Brain damage.35Madrid, 889 F. Supp. at 1235, 1236.36Jones’El, 164 F. Supp. 2d at 1101, 1102.

19■Mental retardation.■Clinicians provided documented evidence of■■Impulse-ridden personality.History of psychiatric problems or chronicdepression. 37repeated treatment failures, determined thatfurther treatment would not improve theinmate’s mental health condition, and establishedan appropriate system for monitoringthe inmate after return to the SHU.Mental HealthThe court later modified this list after reviewingextensive work by Pelican Bay’s Special Master(court-appointed monitor) and his mental healthexpert, Dr. Jeffrey Metzner, who had not testifiedin the trial. The court deleted “borderline” and“impulse” personalities from the list and refinedthe remaining categories to include inmates diagnosedwith:■ A mental disorder that includes being activelysuicidal.■ A serious mental illness that is frequentlycharacterized by breaks with, or perceptionsof, reality that lead the individual to significantfunctional impairment.■ Corrections officials determined that securityconcerns precluded placement in a unit otherthan the SHU.As of July 2003, Pelican Bay had not invoked thisexception. 39One knowledgeable observer has defined a“Madrid Exclusion Standard” as follows:Documented diagnosis of evidence of any ofthe following DSM–IV—Axis I conditions currentlyin existence or within the precedingthree months:1. Schizophrenia (all subtypes).■■■An organic brain syndrome that results in asignificant functional impairment if not treated.A severe personality disorder that is manifestedby frequent episodes of psychosis ordepression and results in significant functionalimpairment.Mental retardation with significant functionalimpairment. 382. Delusional disorder.3. Schizophreniform disorder.4. Schizoaffective disorder.5. Brief psychotic disorder.6. Substance induced psychotic disorder(excluding intoxication and withdrawal).The court later approved an “exception to theSHU exclusion process” by which an inmate withone or more exclusion factors could be returnedto the SHU from a treatment unit if both of thefollowing conditions are met:7. Psychotic disorder [not otherwisespecified].37Madrid, 889 F. Supp. at 1265.38Madrid v. Gomez, Remedial Order re: Exclusion From the Security Housing Unit, December 15, 1995, unreported.39Author’s discussions with the Pelican Bay Special Master.

20Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT8. Major depressive disorder.9. Bipolar disorder I or II. 40Although an ECU’s particularcircumstances may affect thecategories or severity of problemsthat warrant an inmate’sexclusion, the California andWisconsin cases have two clearmessages for all ECUs:■■Agencies need thoughtfullydeveloped categories forpresumptively excludinginmates from placement inthe ECU on the basis ofexisting mental healthconditions.Agencies need to carefullymonitor the mental healthcondition of inmates in theECU to determine whether the condition of aparticular inmate has deteriorated to the pointwhere the inmate must be moved to anothersetting.If certain inmates’ behavior warrants confinementin the ECU but their mental condition precludesplacement in the ECU or demands removal fromit, it stands to reason that corrections agencieswill experience pressure to create psychiatricsecurity units that can address both the securityrequirements and the treatment needs of theseinmates. Following the Madrid decision, Californiadeveloped such units. According to thejudge in Jones’El, the Wisconsin Departmentof Corrections could transfer inmates from itsAgencies needthoughtfullydevelopedcategories forpresumptivelyexcluding inmatesfrom placement inthe ECU on thebasis of existingmental healthconditions.supermax prison to the Wisconsin ResourceCenter (operated by the Department of Health andFamily Services) or to a mental health unit inanother state prison. 41 Inmatesfrom the Colorado State Penitentiary(considered by thestate’s corrections departmentto be an ECU) can be transferredto a state mental hospital.42 Details of what a “highsecuritymental health unit”should look like and how itshould be operated are subjectsfor a future monograph.ECU Mental HealthLawsuitsAs summarized in the sidebar“A Case Study in ECU MentalHealth Litigation,” the preliminaryinjunction hearing in theWisconsin Jones’El case illustrateshow a “typical” ECU mental health case islikely to unfold. Wisconsin had created screeningand monitoring systems intended to divert mentallyill inmates from the supermax facility. Thosesystems were challenged, and their fate was largelydetermined by mental health experts whooffered conflicting testimony in an adversary proceeding.Were Wisconsin’s systems actually failingto operate as intended? The court clearlybelieved this to be the case. Or were the Wisconsindefendants simply unable to convince thecourt that the supermax facility was operatingacceptably?In cases such as Jones’El, the nature of the adversaryprocess essentially requires the judge to40John Stoner, Ph.D., Management of Violent, High Risk, and Supermax Offenders, Washington, DC: U.S. Department ofJustice, National Institute of Corrections, 2002.41Jones’El, 164 F. Supp. 2d at 1102.42Author’s conversation with Dr. John Stoner, head psychologist at the Colorado State Prison.

21A Case Study in ECU Mental Health LitigationThis case study is derived from records of lacked the initial screening report (i.e., the reportthe preliminary injunction hearing in the that was supposed to be part of the initial referralWisconsin Jones’El case, in which plaintiffs process), one had the report completed a yearraised mental health-related issues about confinementin the state’s supermax facility in Boscobel. a another had an incomplete report (it overlookedafter the inmate arrived at the supermax, andthe inmate’s several earlier hospitalizations forScreening. The corrections department had set upmental health reasons). These failings led thea three-level mental health screening process forexpert (and the court) to question the quality ofinmates referred to its supermax facility. The firstthe initial screening procedures. By contrast, however,the defendants’ expert examined records ofscreening took place at the sending institution,where each inmate considered for transfer to the100 supermax inmates and found the necessarysupermax was examined by a psychologist or psychiatristto determine whether the inmate couldscreening report in all of them. He felt that theabsence of reports noted by the plaintiffs’ expertbe safely transferred. The second screening waswas not routine. The court did not accept thisperformed by a psychiatrist at the departmentview. blevel. Finally, when an inmate arrived at the supermax,he was screened again by facility mental Monitoring. The monitoring program also camehealth staff. The record indicated that someunder severe criticism from the plaintiffs’ expert,inmates had been screened out at each of the who interviewed 20 inmates as part of his 3-daythree levels.tour (some chosen because they were taking psychotropicmedication, some pointed out by otherInmates new to the facility (and those who hadinmates as having mental health problems, andfailed a step of the facility’s multistep program)others selected at random) and another inmate onwere housed in a unit where security and restrictionswere greater than in other units. Thesethe telephone, after his tour. He concluded that 8of these 21 inmates were suffering from psychiatricreactions to conditions in the supermaxinmates were screened by a mental health specialistonce a week. Other inmates were interviewedfacility and that these 8 inmates reflected a larger,by the specialist at the cell front once a month.general problem throughout the facility. The courtMental health and unit staff reviewed inmatesaccepted his testimony over that of the defendants’expert, who offered contrary opinions, andweekly in unit meetings. A psychologist wasassigned to any inmate diagnosed as mentally ill,ordered that five of the eight be transferred outand the psychologist would see the inmate asof the supermax and that two others who hadoften as deemed clinically necessary. Any inmatealready been transferred not be returned to theon mental health medications would also be seensupermax.by a psychiatrist and would be observed regularlyby the nurse who delivered medication to the cell. The court also ordered that all inmates currently inMental health staff could recommend transfer of the supermax who met certain criteria be examinedby mental health professionals not employedan inmate to another facility.by the corrections department. If these examinationsfound an inmate to be seriously mentally ill,This sounds like a prison system that is paying substantialattention to inmate mental health issues.that inmate could not be housed in the supermax.But when the plaintiffs’ mental health experttoured the supermax for 3 days and examined Conflicting Diagnoses: An Example. The plaintiffs’records of 20 inmates, he found that two records expert concluded that one inmate he hadMental Healthcontinued on page 22

22Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITA Case Study in ECU Mental Health Litigation (continued)interviewed was suffering auditory hallucinations him 3 days after the expert’s interview and saidand “massive anxiety” despite strong psychiatric the inmate told her the medication was helpingmedication and that this inmate’s condition was him sleep.attributable to the continuing stress of being inIn short, the court’s summary of testimony by thethe supermax and to the facility’s lack of a mentalplaintiffs’ expert and the prison’s staff paints twohealth program. c In the interview with the expert,different pictures of the same inmate. The courtthe inmate said he heard voices constantly commandinghim to kill himself or hurt others, sawsimply rejected the testimony from the prison staffand accepted the diagnosis of the plaintiffs’things (including demons), and thought the guardsexpert, which was based on an interview (lastingwere out to get him. This inmate was taking 300no more than 75 minutes) and a review of themilligrams of Thorazine twice daily.inmate’s chart.The prison’s mental health staff offered a differentThis “dueling experts” process is likely to be followedin other cases and shows the importanceview. This inmate had been seen by the psychiatrist,who commented about the inmate’s “clearof very credible expert testimony in this type ofand crisp” thinking during an interview conductedlawsuit. As noted earlier, psychiatric disorders areabout 4 months before the interview by the plaintiffs’expert. Within 2 weeks of seeing the plain-often in the eye of the beholder. Two expertsexamined the mental health issues at Wisconsin’stiffs’ expert, the inmate told the psychiatrist thatsupermax facility and reached virtually oppositehe was sleeping relatively well and that the Thorazinewas helping to quiet the voices. A psycholo-conclusions. The judge found the plaintiffs’ expertmore convincing and adopted his opinions, whichgist who had begun working with the inmatein turn determined the judge’s final decision. dregarding the inmate’s auditory hallucinations sawa Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).b John W. Stoner, Ph.D., Analysis of Mental Health Services and Treatment of Mentally Ill Inmates at Supermax CorrectionalInstitution (SMCI), Boscobel, Wisconsin (unpublished document submitted in litigation), p. 36.c Jones’El, 164 F. Supp. 2d at 1109.d A similar battle of experts was played out in Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz. 2002), but the issues focused onthe mental status of just one inmate. In Comer, the judge was convinced by testimony that the inmate was not mentally ill,rejecting the opinions of the same expert whose testimony convinced the Jones’El judge to find in favor of the plaintiffs.credit the testimony of one of two conflictingexpert witnesses. Which one the judge choosesdetermines the result of the case. As the Jones’Elcase study shows, even occasional failures tocomply with policy may be taken as indicative ofchronic, systemic failures. Diagnoses and assessmentsof inmates by facility treatment staff, basedon months or years of work with a patient, arelikely to be contradicted by an expert who, basedon a short interview and a review of patientrecords, may characterize inmates as sufferingfrom SHU syndrome caused by conditions ofconfinement.Trying to determine very complicated, technicalissues such as the mental health condition of largenumbers of inmates and the causes of such conditionsthrough “dueling experts” in the courtroomis a risky, uncertain business. It is not science. It

is not peer review or sophisticated quality assuranceby a group of disinterested mental healthprofessionals.When it comes to ECU mental health issues, acorrections department may be in the strongestlegal position if it incorporates some form ofongoing quality assurance reviews into its standardoperating procedures. Such proceduresbecome even more credible if they draw on professionalsfrom outside thedepartment. Quality assurancereviews can serve two purposes:(1) alerting the departmentto problems as they develop, sodeficiencies can be corrected;and (2) providing a credible,nonadversarial-based source ofinformation about the operationof the ECU.Transferring Inmates forMental Health TreatmentSimply transferring a prisoninmate to a mental health treatmentfacility triggers dueprocess protections under a1980 Supreme Court decision. 43In Vitek v. Jones, which concernedthe transfer of a prisoner from a Nebraskastate prison to a mental hospital, the Court saidthat as part of such a transfer decision, the inmatewas entitled to a hearing that included more proceduralprotections than would be required in adisciplinary hearing. Notably, the inmate had aright to “qualified and independent assistance”(but not necessarily a lawyer) and the right tocross-examine witnesses. The model the Courtadopted for the transfer hearing is similar to thatWhen it comes toECU mental healthissues, a correctionsdepartment may bein the strongestlegal position if itincorporates someform of ongoingquality assurancereviews into itsstandard operatingprocedures.required for a parole revocation. The Court didnot require a hearing in emergency situations orwhen a transfer is simply for a clinical evaluation.Several factors were of significance to the Courtin Vitek. The Court considered that the transferunder review was to an agency and institutionoutside the jurisdiction of the state department ofcorrections, that such a transfer imposed a stigmaon the inmate, and that the transfer exposed theinmate to a mandatory programof behavior modification.The Vitek decision left severalsubstantial questions unanswered.Unfortunately, relativelylittle litigation has comeforth in the aftermath of Vitekto answer these questions. 44The most obvious question iswhether Vitek applies when thetransfer is not to a mental hospitalrun by the state’s mentalhealth agency but to a mentalhealth treatment unit located inanother institution run by thecorrections department. Whatif the transfer is simply to amental health unit in the sameprison? In The Mentally Disordered Inmate andthe Law, Cohen argues that Vitek should applyunder such circumstances but recognizes that, inpractice, it frequently is not observed. 45 Amongother questions Cohen notes are what criteriashould be used in deciding to transfer an inmatefor mental health treatment and what the burdenof proof should be in the transfer hearing.23Mental Health43Vitek v. Jones, 445 U.S. 480 (1980).44For a lengthier discussion of Vitek and inmate mental health issues generally, see Cohen, The Mentally DisorderedInmate and the Law.45Ibid., p. 17-10

24Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITThe implications and applicationof Vitek are complex, anda detailed discussion is beyondthe scope of this monograph.Suffice it to say that correctionsagencies operating ECUsshould seek legal advice on themeaning of Vitek for mentalhealth-based transfers.Involuntary MedicationThe involuntary medication ofinmates whose serious mentalillness makes them a threat tothemselves and others raises adifferent set of issues. Unless an ECU can veryquickly transfer an inmate to a mental healthtreatment facility, it needs to have procedures inplace that address these issues. Even if transfersare the primary means of dealing with seriousmental illness, the ECU still may need to medicatean inmate if an emergency arises while atransfer request is in process.Inmates have a constitutionally protected right torefuse treatment, but that right can be overcomewhen, because of a mental disorder, an inmateposes a danger to himself or others. The treatmentdecision must be made by a medical professionaland must be in the inmate’s best interest medically;except in emergency situations (i.e., theinmate poses an imminent threat), involuntarytreatment can only be administered after ahearing, somewhat resembling a disciplinaryhearing. 46Medication can never be given involuntarily forpunishment. Absent the circumstances discussedin the previous paragraph, medication cannot begiven involuntarily simply to control behavior.Inmates have aconstitutionallyprotected right torefuse treatment,but that right canbe overcome when,because of a mentaldisorder, an inmateposes a danger tohimself or others.SummaryThe prison’s constitutionalobligation (under the EighthAmendment) to provide medicalcare—i.e., not to be deliberatelyindifferent to the seriousmedical needs of inmates—underlies the unique mentalhealth-related issues confrontingECUs. At the heart ofthese issues is a basic dilemma:the level of security and controlrequired to manage the behaviorsthat bring inmates to theECU may be harmful to the mental condition ofsome inmates and, therefore, in violation of theirconstitutional rights.Debate continues about the nature of “SHU syndrome”and the extent to which conditions of isolationin the ECU may contribute to deteriorationof inmates’ mental health. However, there appearsto be general agreement that ECUs are, to someextent, hazardous to the mental health of inmateswith certain types of mental conditions. Some ofthese inmates should not be placed in an ECU atall, and others may require very careful monitoringin the ECU and may have to be removed fromthe ECU should their mental condition deteriorate.This concern suggests several preventivesteps:■■Screening criteria. Develop criteria to screenout some inmates from admission to the ECUaltogether. The limited current case law suggeststhat such criteria should be somewhatsimilar to those in Madrid.Screening process. Develop a process foreffectively applying these screening criteria.46Washington v. Harper, 494 U.S. 210 (1990).

25Wisconsin corrections officials had developed■Quality assurance. Consider developing aa screening tool, but the court was very criticalof how the tool was applied. Should anagency attempt to rely entirely on a standardizedscreening instrument? Or should it com-quality assurance system or audit processas a strategy for addressing legal challengesto screening and monitoring procedures.Wisconsin’s litigation experience suggests theMental Healthbine standardized screening with professionalwisdom of this approach. A reviewing courtexamination, at one or more levels, of eachmay find such efforts more credible if theyinmate considered for transfer to the ECU,involve persons from outside the correctionstogether with a final examination at admis-department.sion? The best approach has yet to be defined.■Mental health care. Provide ongoing diagno-■Monitoring. Implement a process for con-sis and treatment for mental health condi-stantly monitoring the mental status oftions. This is the “standard” level of serviceECU inmates and criteria for determiningexpected in any prison, and clearly a require-when transfer out of the unit is warranted.ment in the ECU.Wisconsin attempted to do this, but the courtcharacterized its efforts as “little more thanband-aids to the potentially detrimental conditionsto which defendants are subjectingmentally ill inmates.” 47■Staffing. Maintain staffing levels in accordancewith the services to be provided.Operating an ECU mental health programshort-handed is an invitation to litigation andcourt intervention.■Removal. Implement a process for transferringinmates out of the ECU if they meet themonitoring system’s criteria for removal. Thisrequires, among other things, a place to sendsuch inmates. Agencies should seek legaladvice on whether a Vitek hearing must■Medication. Be aware of legal constraintsconcerning involuntary medication, and haveprocedures in place for medicating inmateswhose serious mental illness presents a threatto themselves and others.accompany such transfer decisions.47Jones’El, 164 F. Supp. 2d at 1122.

CHAPTER27Medical Services3Medical ServicesProviding medical services to ECU inmatesdoes not involve issues comparable to theunique mental health-related concerns discussedin chapter 2. However, operational andlegal problems certainly come up. The extremesecurity requirements of the ECU can make deliveryof medical services cumbersome and maylead to delays in providing care. Moreover, someECU inmates are likely to demand medical attentionbecause, if nothing else, sick call gives themsomeone to talk to. Some inmates in long-termsegregation are likely to be very litigious, andthey may include medical care in theircomplaints.This chapter discusses the challenges of deliveringmedical services in the ECU environment,with emphasis on aspects of medical care likelyto be challenged in inmate lawsuits. The contextfor the discussion is the traditional “deliberateindifference to serious medical needs” test,reviewed at the beginning of chapter 2.

28Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITStaffingThis consideration is an obviousone. Because deliveringmedical services is more cumbersomein ECUs than in unitswith less stringent security, itsimply may take more peopleto provide a comparable levelof service. Thus, the number ofqualified medical personnel inthe ECU is a potentially seriousissue.ConfidentialityIssuesBy delivering medical services at the cell, ECUscan reduce costs and security concerns associatedwith moving inmates to see medical providers. AsRiveland notes, most ECUs provide triage medicalservices either at the cell front or in examrooms within the unit; additional services mightbe provided through telemedicine (using telecommunicationstechnology). 48 The more services theECU provides at the cell front or within the livingunit, the greater the importance of ensuring notonly that proper equipment and necessary medicalrecords are available but also that adequate precautionsexist to protect the privacy of inmatepatients. Although courts disagree about the existenceof a constitutionally based right to privacythat protects inmate medical records and information,the trend indicates that such a right exists. 49A three-stepanalysis can helpinstitutions addressconfidentialityissues that arisein interviewing,diagnosing, andtreating ECUinmate patients.Concerns about the confidentialityof medical informationarise as services are deliveredat the cell front. The Doe case,cited in footnote 49, indicateshow a right to privacy could beviolated. An HIV-positiveinmate alleged that medicalstaff told escort staff that theinmate was HIV-positive; thatdiscussions in the doctor’soffice took place with theoffice door open, so officersand inmates could hear whatwas said; and that nursesadministering medications spoke loudly enoughthat others could hear what medication the inmatewas getting and infer that he was HIV-positive.The court held that the allegations in Doe weresufficient to state a claim but that further proceedingswere necessary to determine whether theinstitution could defend any of the practices inquestion (assuming that the allegations aboutthem were proven) by showing they were justifiedby a legitimate penological interest. 50 Forinstance, did security concerns justify conductingmedical interviews between doctor and patient inrooms with the doors open?Situations similar to those alleged in Doe couldeasily arise in an ECU unit. A medical providerconducting sick call or other interviews at the cellfront might have to speak so loudly that custodystaff or other inmates could hear the conversation.48Riveland, Supermax Prisons: Overview and General Considerations, p. 11.49Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994), holds that no right to privacy exists regarding disclosure of an inmate’sHIV status. However, see Doe v. Delie, 257 F.3d 309 (3d Cir. 2001), which finds a right to privacy subject to limitationbased on conflicting legitimate penological interests and reviews court decisions on the question; and Powell v. Schriver,175 F.3d 107 (2d Cir. 1999).50The court applied the test for evaluating conflicts between inmate rights and competing institutional interests thatcomes from Turner v. Safely, 482 U.S. 78 (1987). The test is commonly used in a variety of situations and is generallynot difficult for institution officials to meet. See chapter 8 for details of the Turner test.

The doors of the ECU’s medical exam roommight be left open because of security concerns,allowing persons outside the room to hear whatwould otherwise be confidential discussions.A three-step analysis can help institutions addressconfidentiality issues that arise in interviewing,diagnosing, and treating ECU inmate patients:(1) with the assistance of counsel, determinewhether inmates have a protectedlegal right with regard totraditionally confidential medicalinformation; (2) if they do,then determine ways in whichthat right may be breachedin the actual delivery of medicalservices to ECU inmates;and (3) decide whether suchbreaches are justified by legitimatepenological interests.Service DelaysOnly limited medical diagnosisand treatment can be performedat the cell front or inthe living unit. Inmates often have to be movedeither to a clinic in the prison or to an offsitemedical provider. These moves require two orthree staff to escort the shackled inmate to themedical provider. Sometimes escorts can bescheduled in advance, but situations requiringescorts may arise with little or no notice.Although prisons have some leeway in schedulingmedical care, delays can become the subject of a“deliberate indifference to serious medical need”claim. The key question in such cases is whateffects the delay had on the inmate. If a conditiongets worse or the inmate is in prolonged painStaff shortageswould not justifyneglecting theprison’s duty toprovide medicalcare, when thoseshortages result inadverse effects oninmates’ medicalcondition.because of the delay, the institution is more vulnerableto liability.Delays based on a desire to save money can bequestionable. 51 Funding shortages can meanstaffing shortages, which in turn can lead tochronic delays in providing escorts for medicalvisits. Custody staffing needs to be sufficient tohandle routine, scheduled visits as well as emergencies.Staff shortages wouldnot justify neglecting the prison’sduty to provide medicalcare, when those shortagesresult in adverse effects oninmates’ medical condition.Role of theCustody OfficerECUs should not overlook thecustody officer’s role in theunit’s system for deliveringmedical care. Access to themedical system often beginswhen the inmate gives arequest (a “kite”) to the officer.Inmates commonly claim, correctly or not, thatofficers intentionally lose or delay kites as ameans of harassment or that officers read medicalkites and breach confidentiality (see confidentialitydiscussion earlier in this chapter). Allowinginmates to drop medical kites into a locked boxwhere they will be collected by medical staff caneliminate most arguments over confidentiality and“lost” kites.ECU medical staff can take further steps toreduce concerns that custody officers are impedingaccess to medical care. Medical staff canmake and document routine rounds within the29Medical Services51Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va. 2000).

30Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITliving unit, check with inmates who have knownmedical problems, and give other inmates opportunitiesto discuss medical concerns.Custody officers can provide valuable feedback tomedical and mental health providers regarding thecondition of inmates. By including custody officersin periodic medical/mental health staffreviews of inmate/patient progress, health-careproviders can gain valuable information theymight not otherwise have. Such communicationwith custody staff may be an example of howsharing some otherwise confidential informationabout an inmate’s medical or mental healthcondition with nonmedical staff may be justifiedby a legitimate penological interest.Health Insurance Portabilityand Accountability Act(HIPAA)The provisions of HIPAA have resulted in threesets of regulations from the U.S. Department ofHealth and Human Services. The first set 52 dealswith transactions, code sets, and identifiers, i.e.,standardized means of identifying such things asdiagnostic information and health-care providers.The second set 53 covers privacy of medical information.The third set 54 deals with security of protectedhealth-care information. The second setof regulations, relating to privacy, promises to bethe most problematic for ECUs.The critical threshold question with the HIPAAprivacy regulations is whether they even applyto corrections agencies. Because this question5245 C.F.R. § 162.1000.53Id. Parts 160 and 164.54Id. Parts 160, 162, 164.55Id. § 160.103.56Id. § 164.512(k)(5).concerns the entire agency, not just a single institutionor unit within the agency, it is outside thescope of this monograph. Suffice it to say that therules apply to a health-care provider (and othertypes of health organizations) engaging in theelectronic transmission of certain types of “transaction”information. 55 Note that two requirementsmust be met: the “health care provider” criteriaand engaging in the electronic transmission oftransaction information. “Transactions” relateprimarily to financial matters, such as paymentand remittance.Permission To Share Medical InformationIf a corrections agency and an ECU within it are“covered entities,” the HIPAA privacy regulationsimpose several requirements. The most significantpertain to circumstances under which “protectedhealth-care information” (which is not limited toelectronically transmitted information) can beshared. The general rule is that, except for limitedpurposes, such information cannot be sharedwithout the patient’s specific permission.A major exception to the disclosure permissionrule exempts corrections agencies from the rulewhen they certify that disclosure is necessary forproviding health care to the inmate, for ensuringthe health and safety of other inmates and staff,and for other similar reasons. 56 This generalexception also applies to covered entities that providemedical care to inmates but are not part ofthe corrections agency or institution, such as outsidehospitals.Because a hospital outside the prison systemfocuses on HIPAA requirements for the general

public, it may overlook the disclosurepermission exceptionfor corrections facilities. Thus,prisons should clarify HIPAArequirements with outsideproviders. Otherwise, if theprison calls the hospital tocheck on the status of “InmateJones,” the hospital mayrespond that “we cannot confirmthe presence of an ‘InmateJones’ in our hospital.”Access to Medical RecordsThe HIPAA privacy regulations contain other provisionsthat are not subject to such a broad exception.For example, the subject of a medical recordhas a right under the regulations to examine therecord and request corrections. (This right doesnot apply to psychotherapy notes. 57 ) Such requestscan be denied if disclosure of the record wouldjeopardize “the health, safety, security, custody orrehabilitation of the individual or of otherinmates, or the safety of any officer….” 58 Prisonsprobably must make these denials on a case-bycasebasis, as blanket denial of all requests wouldbe inconsistent with the intent of the regulation.Under the HIPAA regulations, an inmate whoserequest for access to records is denied must havethe opportunity to have that decision reviewed.However, no such right exists for inmates if“obtaining [a] copy would jeopardize the health,safety, security, custody, or rehabilitation of theinmate or other inmates, or the safety of any officer,employee, or other person at the correctionalinstitution or responsible for the transporting ofthe inmate.” 59In general, theHIPAA privacyregulations arecomplicated andhave been thesource of substantialuncertaintyand confusion.Implications for ECUsIn general, the HIPAA privacyregulations are complicatedand have been the source ofsubstantial uncertainty andconfusion. ECU inmates mayor may not discover the regulationsand, for example, beginto demand access to their medicalrecords. Regardless, correctionsagencies need toexamine the HIPAA regulations;determine the extent towhich they apply to agency operations in generaland the ECU in particular; and, if the regulationsapply, determine what policies and procedures areneeded to ensure compliance.SummaryProviding medical care to ECU inmates involvesoperational challenges and legal concerns,although the constitutional issues are not as greatas those associated with mental health. Staffingrequirements for delivering medical services arelikely to be greater in the ECU than in other units.Confidentiality of medical information is an issuein the ECU, especially when services are deliveredat the cell front. ECUs need enough custodyofficers to avoid delays when inmates must beescorted out of the unit to receive medical care.ECUs should also be aware of the custody officer’srole in the medical care delivery system andtake steps to avoid inmate complaints related tothat role. Finally, corrections agencies shoulddetermine how privacy regulations under HIPAAmay affect their ECU operations.31Medical Services57Id. § 164.524(a)(1)(ii).58Id. § 164.524(a)(2)(ii).59Id.

CHAPTER334Other Conditionsof ConfinementConstitutional requirements regarding conditionsof confinement apply, of course,to living conditions in ECUs. As notedearlier, litigation about conditions of confinementin long-term segregation units is nothing new.This chapter first discusses how the courts analyzeconditions of confinement. It then looks atoperational and legal aspects of specific conditions:personal safety, food, clothing, shelter, sanitation,and exercise. (Mental and medical healthcare are discussed separately, in chapters 2 and 3.)Other Conditions of ConfinementHow Courts AnalyzeConditions of ConfinementCourts analyze conditions of confinement underthe cruel and unusual punishment clause of theEighth Amendment. In this context, the EighthAmendment has two prongs: (1) objective (theadequacy of conditions that affect inmates’ basichuman needs) and (2) subjective (the defendantadministrators’ state of mind—are they “deliberatelyindifferent” to problems regarding inmates’basic human needs?). 60 To find an Eighth60Wilson, 501 U.S. 294.

34Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITAmendment violation, the court must decideagainst the defendant on both prongs.Objective AnalysisHow serious must a condition affecting a basichuman need be before it runs afoul of the objectiveprong of the Eighth Amendment? In reviewinga particular condition, a court will askwhether the condition is actually harming inmatesor presents a substantial risk of serious harm. 61The basic human needs issues most commonlysubjected to judicial scrutiny relate to thefollowing:■ Medical and mental health care (discussed inchapters 2 and 3).■ Personal safety.■ Food (the general adequacy of the diet andwhether food is served in a way that does notpose a risk to inmate health).■ Clothing.■ Shelter (the overall living environment,including heating, cooling, ventilation, lighting,noise levels, and other factors).■ Sanitation.■ Exercise, including outdoor exercise.Subjective AnalysisIn deciding whether officials have been deliberatelyindifferent to a particular problem or set ofproblems, a court must determine whether theofficials knew of the problem and the risk it presentedand disregarded that risk by failing to takereasonable measures to abate it. 62 It is no longersufficient for plaintiffs to show that officials“should have known” about a risk—actual knowledgeis required. Actual knowledge can beinferred from circumstantial evidence.The actual knowledge inquiry is probably lessimportant in a class action case involving conditionsthan in a lawsuit brought by an individualinmate complaining of a particular incident or situation.Prison administrators are far more likelyto be aware of general problems targeted in aclass action than the problems of an individualinmate.No “Totality of Conditions” TestIn the past, courts reviewed the “totality” of conditionswhen considering cases that claimedEighth Amendment violations. However, the totalityapproach was rejected in 1991 by the SupremeCourt in Wilson v. Seiter, 63 which concerned conditionsin an Ohio prison. Although earlierSupreme Court case law could be read as approvinga totality approach, Wilson flatly rejected thisapproach, saying instead that conditions relatingto basic human needs (the list above) should generallybe analyzed independently of one another.Wilson does permit conditions to be analyzedtogether if together they relate to a single basichuman need. Thus, inadequate clothing and poorheating might properly be considered together, ascould poor sanitation practices and the preparationof food.61Helling at 25.62Farmer, 511 U.S. 825.63Wilson, 501 U.S. 294.

Basic HumanNeedsPersonal SafetyPersonal safety normally shouldnot be a major concern in theECU, where inmates are lockeddown almost constantly andkept under very close supervisionat other times. However,the “by definition” high riskattributed to inmates in theECU means that when inmateon-inmateassaults take place,litigation and perhaps liability may not be farbehind.The courts speak. In one case, an inmate in ahigh-security unit got out of his cell and assaultedother inmates who were watching television in theunit’s dayroom. Notably, the court deferred to theprison officials’ decision to place the assailant inthe unit as evidence that he presented an excessiverisk to other inmates. This satisfied the first(objective) prong of the Eighth Amendment; inother words, placement in the high-security unitdefined the inmate as dangerous. As to the subjective(deliberate indifference) prong, the courtfound that a corrections officer, by actions thatallowed the inmate to get out of the cell, showedreckless disregard for the risk posed by theinmate. Result: judgment for the plaintiffs, theinjured inmates. 64Double-celling in anECU compromisesthe security thatotherwise definesthe unit’s operationand may be difficultto justify if it leadsto an inmateassault.like the victim. The correctionsdepartment subsequentlyfired the sergeant for grossnegligence. The district courtwas extremely critical of thesergeant’s actions. However,on appeal, a $40,000 judgmentfor the injured inmate wasreversed because the courtheld that the sergeant did nothave actual knowledge that theassailant posed a serious riskof harm to the victim. A generalknowledge of the assailant’sdangerous propensities was not enough. 65Although these conflicting decisions from appellatecourts deliver an uncertain message, someconclusions seem warranted:■■The courts may regard inmates in ECUs aspresumptively dangerous.Inmate-on-inmate assaults in ECUs, whereinmates have virtually no direct contact withone another, strongly indicate that a breach ofprocedure occurred and will be the springboardfor victims to argue that staff weredeliberately indifferent to the risk presentedby inmates. (Note that this argument could bemade if members of rival gangs known to beat odds with one another were allowed contactin the ECU.)35Other Conditions of ConfinementA somewhat similar case had a different result. Adangerous inmate in a special management unitassaulted another inmate in the unit. Evidence attrial showed that a corrections sergeant failed tofollow various security policies in the unit andknew that the assailant was dangerous and did notDouble-celling. Double-celling inmates in anECU because of crowding or other factors createspotential problems. If an inmate is assaulted by acellmate, the victim could argue that (1) onlyhigh-risk inmates are placed in the unit and (2) ifthese inmates are so dangerous that they cannot64Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997).65Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).

36Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITexercise together, must be in restraints outside thecell, and must generally be kept separate fromone another, any double-celling creates a seriousrisk. Various rebuttals are possible, notably thatofficials’ careful screening indicated that the twospecific inmates involved in the case were compatibleand could be double celled. The inquirymight then focus on how carefully cell assignmentswere actually made or on whether stafffailed to monitor the two cellmates well enoughto notice they were not getting along.Double-celling in an ECU compromises the securitythat otherwise defines the unit’s operation andmay be difficult to justify if it leads to an inmateassault. If double-celling is routine in the ECU,prisons must carefully select cell partners andmonitor how well they get along.Food and ClothingFood and clothing should not present major problemsfor ECUs. In general, units must provide anutritionally adequate diet, prepared and servedin a manner that does not present serious healthrisks. Clothing should be generally adequate tomaintain the inmate’s privacy and appropriate totemperature conditions in the unit.Nutraloaf. One food-related issue that may arisemore in the ECU than in the general populationrelates to the use of “nutraloaf,” a food loaf preparedfrom a variety of nutritionally balancedingredients and served without utensils. Nutraloafis unappetizing and unattractive, but courts havegenerally upheld its use—at least in response tofood-related misbehavior, such as throwing foodat officers or refusing to return trays or utensils.In LeMaire v. Maass, 66 an exceptionally notoriousand dangerous inmate housed for years in thesegregation unit of the Oregon State Penitentiarysued over several issues, including nutraloaf. Thecourt of appeals noted that the loaf actually providedan excess of nutritional requirements(LeMaire had gained weight on it), precluding afinding that feeding it to inmates violated theobjective prong of the Eighth Amendment.In LeMaire, the court did issue an injunctiondirecting officials to follow their own rules thatsaid nutraloaf could be used only as a response toinmate abuse of food and could be fed to aninmate for no more than 7 days at a time.(Because the court found that nutraloaf did notdeprive the inmate of an adequate diet, the legalbasis for the injunction was not clear.)A nutraloaf that does not provide adequate nutritioncould raise a possible Eighth Amendmentissue, perhaps depending in part on how long aninmate had to eat it. The injunction in the Oregoncase suggests that a court may have concerns ifthe loaf is served for punitive reasons unrelatedto abuse of food. A nutraloaf might raise FirstAmendment (freedom of religion) issues if, forexample, it contains pork and is served to inmateswho do not eat pork because of their religiousbeliefs.Warm clothing. In Davidson v. Scully, an inmateplaintiff housed in an upstate New York ECUalleged that inmates were issued only summerweightclothing and shared lightweight jackets. Ingranting a preliminary injunction requiring prisonofficials to provide warmer clothing, the judgefound that by providing only light clothing, officialswere effectively denying inmates outdoorexercise during the winter. 6766LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).67Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y. 1996).

ShelterShelter issues may arise in the ECU, dependinglargely on the age of the facility. Shelter encompassesthe overall physical environment of theunit, including lighting, heating, cooling, ventilation,noise, fire safety, and access to hygienematerials (e.g., toilet paper) and hot and cold runningwater. Examples of shelter-related litigationare highlighted below.Lighting. The usual claim has to do with inadequatelighting or natural light in the cell. A differentissue can arise in ECUs that leave some lighton in the cell all night to facilitatesecurity checks. Inmatesclaim that the constant lightdisturbs their sleep.Lighting was an issue in theWisconsin case (Jones’El v.Berge) discussed in the chapteron mental health issues.Inmates could turn their celllights from high to low, but notoff. Even at low, the light wasbright enough to read by. Testimonyconvinced the court thatthe constant lighting was particularlydisorienting to inmates with seriousmental illness. 68 In the settlement that followedthe court’s preliminary injunction, the defendantsagreed to lower the nighttime lighting levels inConditions thatthreaten the healthof inmates can bethe basis for afinding of crueland unusualpunishment.by a flashlight occasionally shining on them asofficers make rounds?Severe deprivation. In another case, concerningthe conditions of confinement at Oklahoma StatePenitentiary, an ECU inmate alleged that he wasstripped of his clothing and placed in a cell withouta mattress, blankets, or bedding and with minimaltoilet paper, no hot water, and inadequateventilation. Nighttime temperatures in the celldropped to the mid-50s. The inmate alleged thatthese conditions lasted perhaps weeks or months.The allegations were serious enough to warrant afull trial. 70Multiple issues. In 1996, aninmate at the Cook County Jailin Illinois alleged chronic pestinfestations in his living unit—claiming that roaches wereeverywhere and that roachesand mice frequently ran acrosshim at night—and stated aclaim under the EighthAmendment. 71 This case alsoincluded allegations that lightingin the inmate’s living unitwas so weak that reading hurthis eyes; the court said that the lighting problemwas sufficient to preclude dismissal of the issueand warrant further factual inquiry into theallegations.37Other Conditions of Confinementthe cells. 69The obvious lesson from Jones’El is that officialsshould examine (1) whether constant nighttimelighting is needed in the ECU and (2) how intensethe lighting must be to serve its purpose. Aresleeping inmates less disturbed by nightlights orSanitationOften closely related to shelter and/or food, sanitationissues are fairly straightforward. Conditionsthat threaten the health of inmates can be the basisfor a finding of cruel and unusual punishment.68Jones’El, 164 F. Supp. 2d at 1118.69Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL 21462603 (7th Cir. 2003).70Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996).71Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996).

38Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITA dilemma may arise for prisonadministrators in dealingwith inmates who “foul theirown nest” by smearing feceson walls, throwing urine, stoppingup toilets to flood cellblocks, etc., and then refuse toclean the mess they have created.Officials may feel thatcleaning up behind the inmatesin such cases means giving uppower to the inmates. If the dispute that led to thedisruptive behavior is not resolved, the inmatesmay repeat the behavior as soon as the first messhas been cleaned up. That said, the thought ofleaving an inmate in a feces-smeared cell for aprolonged time, even if the inmate was responsiblefor the mess, is troublesome. The inmate’smental status would certainly be relevant in consideringhow long such a standoff could beacceptable.In general, courts will consider exposure tohuman waste to be a major deprivation of a basichuman need and will not tolerate such exposurefor long. 72 Offering cleaning supplies to an inmatewho has soiled his own cell may defeat an EighthAmendment claim. 73When the unsanitary condition threatens thehealth of inmates not directly involved in creationof the condition, clearly some sort of early remedialintervention is appropriate, at least on behalfof the noninvolved inmates. When the riskextends only to the inmate(s) who created theproblem, greater leeway may be permitted. In theLeMaire case discussed earlier in this chapter (see“Food and Clothing”), the inmate who protestedCourts havediscussedexercise-relatedissues for years,but the case lawis unclear.the use of nutraloaf in his dietalso protested officials’ denyinghim out-of-cell exercise foryears. The court said that officials,who denied the inmateexercise on the basis of hisdangerous behavior, were notdeliberately indifferent to hisexercise needs and that theinmate held the key to his cellthrough his own behavior.Prudence suggests that at some point, regardlessof inmate behavior, officials should intervene tocorrect sanitation hazards, even though inmatesmay recreate the problem almost immediately.Close monitoring of the situation, ongoing riskassessments with input from medical and mentalhealth experts, attempts to limit the inmate’s abilityto create the problem (see earlier discussion ofnutraloaf), and periodic cleanup will help officialsshow that they were not deliberately indifferent tothe problem, should it arise in litigation.ExerciseInmate exercise presents unique concerns forECUs. In the general prison environment, whereinmates are out of their cells for substantial periodsduring the day and typically have frequentaccess to exercise areas (if not to the latest equipment),concerns about exercise virtually neverreach constitutional significance (there is noright to free weights). By contrast, in a unitwhere inmates have very limited opportunities toexercise outside the cells, the lack of exercise—and sometimes the lack of outdoor exercisespecifically—can become of constitutionalsignificance.72DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); in Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989), thecourt found that 3 days in a cell with feces smeared on walls was not within “civilized standards, humanity, anddecency”).73McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.) 2001); Chambers v. Riveland, 189 F.3d 472, 1999 WL 595366 (9thCir. 1999, unpublished).

Courts have discussed exercise-related issues foryears, but the case law is unclear. Two 1997 decisionsfrom appellate courts—Thomas v. Ramosand May v. Baldwin—indicate the vague parametersof the right to exercise:Lack of exercise may rise to a constitutionalviolation in certain limitedcircumstances “where movement isdenied and muscles are allowed toatrophy [and] the health of the individualis threatened.” 74Although exercise is “one of the basichuman necessities protected by theEighth Amendment” a temporarydenial of outdoor exercise with nomedical effects is not a substantial deprivation. . . a long-term deprivation ofexercise is a denial of a basic humanneed in violation of the EighthAmendment . . . the deprivation of outdoorexercise for a “period of years”contravenes the Eighth Amendment. 75These decisions suggest that a lack-of-exerciseclaim depends on the facts and requires theinmate to show some injury or substantial threatof harm from what probably would have to be anextended denial of exercise. Other courts have notbeen so demanding. For example, in the 1996Davidson v. Scully case (discussed in the sectionon clothing), the court’s preliminary injunctionrequired officials to provide inmates with heavycoats lest they be denied the right of outdoorexercise during the upstate New York winter;however, the case does not address how long theinmates were likely to go without outdoorexercise if they lacked heavy coats, the effects ofnot being able to exercise outdoors, or whetherthe inmates could exercise indoors.Earlier decisions from the Seventh Circuit indicatethat short-term denial of exercise does notconstitute a violation of the Eighth Amendment.In Harris v. Fleming, the court found no violationbecause an inmate who was denied yard time for4 weeks could exercise in his cell for that briefperiod. 76 In Caldwell v. Miller, the court found noviolation where an inmate was confined to hiscell 24 hours a day and denied all outside andindoor exercise privileges for a month, followedby a 6-month confinement for 23 hours a daywith 1 hour of daily indoor exercise. 77In extreme circumstances, courts have approvedeven relatively long deprivations of exercise. InLeMaire, the inmate had been denied exerciseoutside his cell (and hence outdoors) for most ofa 5-year period. Prison officials could show thatthe inmate abused outdoor exercise opportunitieswhen they were granted and that he was a veryserious security/assault risk any time he was outof his cell. (For example, he once engaged in anarmed attack on two correctional officers as hewas leaving the outdoor exercise area.) The courtfound that, under these circumstances, the officialswere not deliberately indifferent to theinmate’s exercise needs. Although the inmatearguably won the objective prong of his EighthAmendment claim, he lost on the subjective “stateof mind” prong and hence lost the overall claim.In LeMaire, it was important to the Ninth Circuitthat the inmate controlled his own destiny. If hedemonstrated a willingness to follow the prison’s39Other Conditions of Confinement74Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997), internal citations omitted.75May v. Baldwin, 109 F.3d 557 (9th Cir. 1997), internal citations omitted.76Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988).77Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986).

40Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITrules, he would regain access to exercise andother privileges he had lost because of his violentand threatening behavior. 78Whereas courts over the years have been reluctantto find that in-cell exercise is sufficient, LeMairenotes favorably that the inmate could exercise inhis cell, as do Harris and, more recently, Thomas.However, these cases should not be interpreted tomean that the courts generally approved denyinginmates regular out-of-cell exercise because theycan do situps and pushups in their cells.The courts have hedged somewhat with regard tothe right to exercise and the specific right to exerciseoutdoors a certain number of hours per dayand days per week. Although denial of all out-ofcellexercise for days or weeks (or even years inthe most extreme circumstances) may be defensible,the presumption in designing and operatingECUs should be that inmates will be allowed toexercise outside their cells several hours per weekand that some exercise will take place outdoors. Ifthese privileges are suspended, documenting thereasons may prove important. (As noted in footnote78, officials in LeMaire thoroughly documentedthe inmate’s behavior and their responseover the years, and the documentation played animportant role in winning the case.)SummaryWith regard to certain conditions of confinement(personal safety, food and clothing, shelter, sanitation,and exercise), issues in ECUs differ fromissues in general population settings only as amatter of degree. The basic legal test is the same:do the conditions harm the inmate or present aserious risk of substantial harm, and are officialsdeliberately indifferent to that risk. The ECU’svery strict environment may increase the risk ofharm to some inmates (especially the mentally ill)or for some conditions (e.g., exercise).Intensity and duration of exposure may makedefense of allegedly poor conditions more difficultin ECUs than in general prison settings. Ingeneral settings, the effects of poor conditions incells may be mitigated if inmates are out of theircells most of the day to participate in programs,jobs, and other activities. The inmates may beexposed to the poor conditions only a few hoursper day. But ECU inmates rarely leave their cellsand never leave the unit; if poor conditions exist,the inmates’ exposure is constant. Whereas lackof exercise is rarely an issue for inmates in thegeneral population, it is, to some extent, a fact oflife for ECU inmates.As noted in the Madrid case, conditions in modernECUs, which remove so much of inmates’opportunity for human contact, “may press theouter bounds of what most humans can psychologicallytolerate” and sometimes exceed thosebounds for some inmates. 79 This observation, andits implications for the conditions discussed in thischapter, should be acknowledged by officials inplanning and operating ECUs.78A major caveat about LeMaire: Inmate LeMaire’s behavior showed him to be extremely dangerous, and correctionsofficials carefully documented his behavior and their responses to it. The holdings in the case should not be read asapplying to all inmates in long-term segregation.79Madrid, 889 F. Supp. at 1267.

CHAPTER41Use of Force5Use of ForceBecause the ECU holds the most violentinmates in a prison system, use of forcewill be common. The high level of securityin the ECU demands that officers have physicalcontact with inmates—conducting pat or stripsearches and applying restraints—virtually everytime the inmates leave their cells. In some jurisdictions,all escorts are done “hands on.” 80In addition, the volatile nature of the ECU populationmeans that corrections staff will need toperform cell extractions, address self-destructivebehavior, and deal with combative, resistiveinmates. Some inmates may try to instigate incidentsjust to relieve the tedium of their environment.All of these situations may require the useof force, sometimes at high levels, usually involvingspecially trained response teams. Dependingon agency policy, officers may have access tobatons, chemical agents, tasers, stun guns, andother weapons up to and including firearms.This chapter examines use of force in the uniquecontext of the ECU. It discusses factors that maycontribute to use of excessive force, reviews legal80Riveland, Supermax Prisons: Overview and GeneralConsiderations, p. 15.

42Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITtests for evaluating force incidents, and suggestsways of avoiding improper use of force.Excessive Force: SomeContributing FactorsIn the author’s opinion and experience, the ECUenvironment can create pressures that push officersto use more force than is needed to managean immediate threat. Some inmates taunt officersverbally and may actuallyassault officers, spit on them,or throw feces, urine, or othersubstances on them. The frequencyof officers’ necessaryhands-on contact with inmates,the combative nature of at leastsome inmates, and the offensivebehavior to which officersare subjected can create a climatefor retaliatory use of excessive force.Officers may feel that very swift, harsh use offorce demonstrates their power, underscores theircontrol of the unit, and deters any forceful reactionby inmates.Proper supervision can prevent abusive use offorce. Without a firm supervisory presence, use ofexcessive force can become the accepted, “normal”way of doing business—the “culture” of thefacility or unit. This culture of excessive force atCalifornia’s Pelican Bay facility—and attempts tocover up the related practices—were importantelements of the Madrid case. 81Ironically, an institution’s formal disciplinary systemmay be another factor contributing to the useProper supervisioncan prevent abusiveuse of force.of excessive force in the ECU. Available sanctionstypically include loss of privileges, placementin segregation, or removal/denial of goodtime credits. ECU inmates have few privileges tolose and are already locked in the most securefacility available (making segregation a largelymoot point). Many have little or no good timecredits to remove or are serving such long sentencesthat tinkering with a release date is of littleimmediate importance. Thus, staff may see traditionaldisciplinary actions as not providingan adequate response or aneffective deterrent to seriousmisbehavior in the ECU. Ifcorrectional officers perceivethe formal disciplinary systemto be ineffective, they may bemore inclined to take mattersinto their own hands and feeljustified in doing so.Use of Force: The Legal Testand Its Application in MadridIn Hudson v. McMillian, concerning correctionalofficers’ use of force at the Louisiana StatePenitentiary at Angola, the Supreme Courtdefined the legal standard for evaluating use offorce in a corrections context: “whether force wasapplied in a good-faith effort to maintain orrestore discipline, or maliciously and sadisticallyto cause harm.” 82 The courts apply the same standardfor ECUs as for any other corrections setting.Hudson requires the courts to consider fivefactors:81See Madrid, 889 F. Supp. at 1159–2000 and 1247–1255. The court found that a “pattern of needless and officiallysanctioned brutality had invaded operations at Pelican Bay” (889 F. Supp. at 1255).82Hudson v. McMillian, 503 U.S. 1 (1992).

■ The need for the use of force.■ The amount of force used, in relation to theneed.■ The extent of any injuries.■ Whether the threat was reasonable, as perceivedby responsible corrections officials.■ Whether any efforts were made to temper theseverity of a forceful response.Madrid provides an example of the kinds of forceconditions the courts will not tolerate under thistest. The court found that Pelican Bay ECU staffwere using abusive, unconstitutional levels offorce against inmates and that a code of silencemade it very difficult for a staff member to reportan improper use of force or for the agency to holdofficers accountable. Examples of excessive forceincluded staff assaults on inmates; frequent use of“fetal restraints” (hog-tying), often for essentiallypunitive purposes; and frequent use of lethal force(i.e., firearms). Excessive force in cell extractionswas common.The Madrid opinion shows that fundamentalmanagement problems lay beneath the abusiveuses of force at Pelican Bay. Policies were notclear and consistent enough to provide meaningfulguidance to staff. The absence of clear writtenguidelines led to different interpretations andstatements of policy by midlevel supervisors.Training at times was inconsistent with policies.Pelican Bay also lacked active supervision andreview of force incidents. Written reports tendedto be very general and were routinely accepted.The court found that officials would “turn a blindeye” when reports suggested the need for morefollowup. 83 Some force incidents led to internalaffairs investigations, but the court found “thatwhile the Internal Affairs Division goes throughthe necessary motions, it is invariably a counterfeitinvestigation pursued with one outcome inmind: to avoid finding officer misconduct as oftenas possible.” 84 The court also criticized the lack ofsupervision in the common use of lethal force(firearms). The Madrid court eventually concludedthat not only were officials deliberately indifferentto use-of-force problems, but there was “anaffirmative management strategy to permit the useof excessive force for the purposes of punishmentand deterrence.” 85Avoiding Use ofExcessive ForceIt is tempting to dismiss Madrid as an isolatedsituation—“that wouldn’t happen here.” However,the author’s experience has shown that the conditionspresent in many segregation units (inmatebehavioral disorders, limitation of inmates’ personalfreedoms, and antagonistic relationshipsbetween staff and inmates, etc.) are fertile groundfor such outcomes. Rather than saying “thatwouldn’t happen here,” perhaps the better approachis to assume that “it can easily happenhere, unless we take proactive steps to prevent it.”The problems agencies experience in dealing withhigh-risk inmates make it obvious that managingthese inmates requires comprehensive needsassessment, thorough planning, and funding commensuratewith staffing and training requirements.But the best planning and preparation are43Use of Force83Madrid, 889 F. Supp. at 1187.84Id. at 1192.85Id. at 1187.

44Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITwasted without firm and consistent supervision ofoperations. Correctional officers assigned to themost dangerous group of inmates in a prison systemare unlikely to treat them with kid gloves.Even if a facility requirestraining in subject control,monitoring, and accountability,the benefits of that training canbe lost if the “culture” of thefacility embraces force as atool for punishment.Once abuse of inmates and acode of silence become part ofthe ECU staff culture, they aredifficult to eradicate. Strongsupervision—beginning at thefirst-level supervisor andextending to the warden—isrequired to prevent unconstitutional levelsof force in the ECU. The sidebar “Basic Requirementsfor Avoiding Use of Excessive Force”summarizes important considerations for administratorsand managers in developing an ECU operationthat meets constitutional standards withregard to use of force.In considering use-of-force policies and practices,officials should keep in mind that inmate plaintiffsmay not even have to show extreme levels ofexcessive force to win a class action suit. TheEighth Amendment also requires prison officialsto protect inmates from violence at the hands ofother inmates. In a case that involved inmate-oninmateviolence at a Wyoming State Penitentiary,the plaintiffs won simply by showing that officials(including the warden and the agency director)consistently failed to review incidents to determinecauses and consider corrective action. Thesefailures led the court to conclude that officialsOnce abuse ofinmates and acode of silencebecome part ofthe ECU staffculture, they aredifficult toeradicate.were deliberately indifferent to safety risks, andthe court found an Eighth Amendment violation. 86Similar reasoning could be applied in litigationabout improper use of force.Tools for Control,Oversight, andDocumentationThe “malicious and sadistic”legal test that courts use inevaluating force claims is not adifficult one for institution officialsto meet. It tends to givethe benefit of the doubt to officials.However, absent a relativelyincontrovertible record ofwhat took place in a force incident,the trier of fact mustdecide what actually happened on subjectivegrounds. Who should be believed—the officers(“only necessary force was used”) or the inmate(“I hadn’t done anything, and they hit me andkicked me coming back from my medical visit”)?It is especially troubling for defendants to lose ause-of-force case because a jury concludes thatofficers were lying when in fact they were not.The more objective evidence an institution canproduce to show what happened, the less the casemay turn on “he said–they said” evidentiary conflictsand the less likely a force claim will be lostsimply because a jury chose to believe the inmateinstead of the officers.Two simple steps can produce objective evidencefor defending force claims: videotaping incidentsand conducting post-incident medical examinations.Both steps serve other important purposesas well.86Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy. 2002).

45Basic Requirements for Avoiding Useof Excessive Force■■■Clear, comprehensive policies governing theuse of force, including alternatives to use offorce, when force is appropriate, requiredwarnings, proper types of force, when specialweapons may be used, and required reports.Training for officers and supervisors aboutwhat is expected of them with regard to useof force. Training should include interpersonalskills and verbal strategies for managing difficultinmates; without these elements, it maybe difficult to show “efforts to temper” use offorce, as required in Hudson. Training that islimited to special weapons, chemicals, andequipment sends a strong message to staff,inmates, and the courts about how the agencyintends to manage difficult inmates.Reporting requirements. Written reports foreach use-of-force incident must be clear and■accurate. Reports that use boilerplate languageor just state conclusions (“only necessaryforce was used”) do not describe whathappened and may imply that officers collaboratedto “cover their tracks.”Active, aggressive review of use-of-forceincidents. Reviews should involve all levels ofsupervision, including the central office, andshould ensure that policies were followed, theuse of force was justified, the circumstancesnecessitating force were beyond the staff’sability to control or avoid, and the level offorce was appropriate. The review should alsoensure that immediate remedial action istaken if problems are noted. Feedback shouldbe provided to staff by conducting incidentdebriefings, identifying areas for improvement,and providing training as needed.Use of ForceVideotapingBecause an ECU is such a controlled environment,most force incidents will develop slowly,allowing for a controlled response. For example,a cell extraction in the ECU is a much morecontrollable event than a spontaneous riot in thegeneral population dining hall. The relatively controlledenvironment in the ECU should make itpossible to videotape most force incidents, providinga clear record of what took place. Videotapingcan also deter the inmate who wants toprovoke a violent confrontation and the staffmember who tends to use excessive force whenthe opportunity presents itself.In a cell extraction situation, a handheld videocameracan be used to record officers’ warningsand the inmate’s response. In some types of forceincidents, however, it may not be possible tobring a handheld camera to record what happens.By equipping an ECU with general security camerasthat operate constantly and tape commonareas, spontaneously developing force incidentscan be captured on tape. Such cameras may notprovide the detailed record that could be obtainedwith a handheld camera, but they can at leastrecord some visual evidence of what took place.Videotapes of force incidents also provide administratorswith a clear record of what happened,facilitating evaluation for management purposes.In addition, videotaping also makes it more difficultfor officers to whitewash improper use offorce by falsifying reports and covering for oneanother.

46Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITPost-Incident Medical ExaminationsConducting a medical examination promptly aftera force incident provides another useful evaluativetool for managers and the courts. The examinationshould be conducted by someone who was notdirectly involved in the incident and is not a memberof the custody staff. Examination results canprovide reliable documentation as to the extent ofinjuries sustained by inmates and staff. (If injuriesare minor or absent, courts tend to excuse otherproblems with a use of force.)SummaryUse-of-force issues are bound to arise in facilitiesthat house the most violent inmates in a prisonsystem. Reliably detecting improper use of forceand responding effectively when it occurs may bethe greatest legal and management challenges inproperly operating an ECU. If management letsuse of force get out of hand, the consequences—patterns of abuse and a code of silence amongstaff—are difficult to correct.Proactive management steps are required toensure that ECUs avoid use of excessive forceand meet the legal test courts use in evaluatingforce incidents. An institution should be able todefend its uses of force if it lays a proper foundationthrough policies, training, supervision, anddocumentation. Staff involved in force incidentsmust write accurate reports of what happened.Videotapes and post-incident medical examinationsare also useful. Thorough documentationhas both management and evidentiary uses. Ifuse of force is not properly controlled and a patternof misuse develops—along with a code ofsilence among staff about incidents of abuse—management has failed.

CHAPTER476The 14th Amendment:Due Processand PlacementThe due process clause of the 14thAmendment presents four of the mostbasic legal issues affecting operations ofECUs:■ Must some form of procedural due processaccompany the decision to place an inmate inthe ECU?The 14th Amendment: Due Process and Placement■■■If so, what form of process is due?Must periodic status reviews be conducted tovalidate an inmate’s continued retention in theECU?If so, what form should these reviews take?This chapter reviews case law related to dueprocess requirements for ECUs and considersboth legal and policy implications associated withdue process procedures. The review indicatesjudicial uncertainty about whether due processapplies to the initial placement decision but generalagreement that some form of periodic reviewis necessary, although the courts have providedlittle guidance about what form the review shouldtake. Note that the discussion focuses on process,

48Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITi.e., what procedures must be followed in makingplacement and retention decisions. Before turningto the legal issues, however, the chapter addressessome basic operational concerns.Operational ConcernsLegal considerations aside, corrections managershave strong interests in how decisions aboutadmission, review, and release are made. To theextent that placement or release decisions rely oninaccurate facts or poor judgment, inmates will beincorrectly classified into or out of an ECU. Thus,the process for making these decisions must begrounded in reliable factual information as thebasis for sound predictive judgments. In hismonograph on supermax prisons, Riveland recommendsthat placement decisions be an “integralpart of the agency’s classification process” andbased on criteria that are “clearly articulated [and]non-ambiguous.” 87Pressures will always exist to send troublesomeinmates to an ECU and keep them there. Unlessthe keepers of the keys to both the front and backdoors of the ECU make their decisions carefully,the unit can quickly fill to capacity, with very littleturnover. When this happens, the unit becomesless useful to the prison system, and pressuresbuild to create additional (expensive) ECU bedspace. Riveland again:It would be prudent to have the finalauthority for approving admission to,retention in, and release from an extendedcontrol unit rest at the highestlevels of the organization. This wouldpreclude—or minimize—potentialabuse of the policy criteria for admissionand release . . . . 88An ECU may bring with it a sort of Field ofDreams prophecy: “If you build it, they willcome.” Unless officials design a careful screeningprocess, this prophecy is likely to come true asthe ECU quickly fills to and beyond capacity withinmates other institutions want to get rid of. Thegoals of such a screening process and the concernsthe goals address are very similar to thoseof procedural due process (see sidebar “AvoidingArbitrary Decisions”). However, a court’sapproach to addressing these concerns may differfrom the process a corrections manager mightselect.Avoiding Arbitrary DecisionsThe goal of procedural due process is to ensure thatdecisions affecting the life, liberty, or property of anindividual are made fairly, on a sound factual basis “toprotect the individual against the arbitrary actions ofgovernment.” ** Wolff v. McDonnell, 418 U.S. 539 (1974).Due Process, Segregation,and ECU PlacementDue process issues are not new for segregationunits. More than 20 years ago, due process issueswere addressed at the Pennsylvania State CorrectionalInstitution at Huntingdon. The SupremeCourt said in Hewitt v. Helms that the languageof regulations and policies governing the placementdecision could create a “liberty interest”triggering minimal due process protections aroundthe placement of an inmate in administrative87Riveland, Supermax Prisons: Overview and General Considerations, p. 8.88Ibid., p. 9.

segregation, even though the 14th Amendmentitself does not inherently provide any protections.89 The Court also said that the 14th Amendmentrequires periodic reviews of segregationstatus, although the Court did not indicate howfrequently such reviews should take place.What is new in the due process arena is the questionof what process is due an inmate who is proposedfor ECU placement. Highlighting thenewness of this issue is the 2004 decision fromthe Sixth Circuit Court of Appeals in Austin v.Wilkinson. 90 Many thought that two earlier SupremeCourt decisions had answered the “whatprocess is due” question—and the answer waseither “none” or “very little.” Austin instead findsthat inmates proposed for ECU placement are duea process similar to that followed for a major disciplinaryhearing.The Sixth Circuit’s 2004 decision distinguishesthe facts in Austin from those in the SupremeCourt’s 1983 decision in Hewitt v. Helms 91 and its1995 decision in Sandin v. Conner. 92 Together,these two cases suggested that no due processprotections might apply to the ECU placementdecisions but, if they did, they would be trulyminimal (e.g., notice of the proposed decision andan opportunity for the inmate to respond to thedecisionmaker either in person or via a writtenstatement).Hewitt dealt with the decision to place an inmatein administrative segregation. Although the factsof the case involved a placement of relativelyshort duration, the decision in no way suggeststhat the length of time an inmate might spend inadministrative segregation determined the Court’sholding. In Hewitt, the Court said that the 14thAmendment does not provide any inherent protectionsfor inmates with regard to placementdecisions. The Court also said, however, that thisfinding did not end the question of whether anydue process protections applied. The state couldcreate “liberty interests” by adopting rules andregulations that placed “substantive limitations”on the otherwise unlimited discretionary powersof the official making the decision. If such limitationsexisted, the Court said, they resulted in a“state created liberty interest.”The Court went on in Hewitt to find that theadministrative segregation placement rules thePennsylvania Department of Corrections hadadopted did create a liberty interest around theplacement decision. Therefore, said the Court, theinmatemust merely receive some notice of thecharges against him and an opportunityto present his views to the prison officialcharged with deciding whether totransfer him to administrative segregation.Ordinarily, a written statement bythe inmate will accomplish this purpose,although prison administratorsmay find it more useful to permit oralpresentations in cases where theybelief a written statement will beineffective.” 93In Hewitt, the Court refused to apply the dueprocess rules it had applied a few years earlier (inWolff v. McDonnell) for inmate disciplinary49The 14th Amendment: Due Process and Placement89Hewitt v. Helms, 459 U.S. 460 (1983).90Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).91Hewitt v. Helms, 459 U.S. 460 (1983).92Sandin v. Conner, 515 U.S. 472 (1995).93Hewitt, 459 U.S. at 476.

50Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIThearings, 94 despite the similarities between disciplinaryand administrative segregation. The Courtfelt the administrative segregation decision waspredictive and very judgmental, in contrast to adisciplinary hearing decision, and that the administrativesegregation decisionmaking processmight even be “hindered” by proceedings thatare more elaborate. 95A dozen years after Hewitt, the Court reexaminedin Sandin its language-focused “state created libertyinterests” test and decided the test was illadvised because, among other things, it mightactually discourage officials from adopting rulesto guide and structure discretionary judgments. Inplace of the state-created liberty interest rule, theCourt adopted a new test that said due processprotections would apply to a particular decision ifthe decision resulted in an “atypical and significanthardship on the inmate in relation to theordinary incidents of prison life.” 96 Looking at thefacts in the Sandin case, the Court said that placingan inmate in disciplinary segregation for 30days did not impose an atypical hardship, so nodue process protections were required for such adecision.population settings and/or to conditions in thestate’s administrative segregation units. Undereither comparison, the court decided, the ECUconditions met the “atypical” test. The court alsodecided that because such a small percentage ofthe total Ohio prison population ever lived in theECU, conditions there were virtually by definitionnot “ordinary” under the Sandin test.The 2004 Austin decision is not the only time acourt of appeals considered whether long-termsegregation crosses over into “atypical” country—although it may be the first time the question hasbeen considered in the specific context of anECU, as opposed to more traditional long-termadministrative segregation. Some results fromother courts differ from those in Austin. Somecourts have said that if an inmate is in a statusthat is within the legal range of custodial confinementallowed under state laws, the status cannotbe atypical. 97 Under this approach, ECU placementwould not trigger due process protections asstate law typically gives the department of correctionscomplete discretion to place inmates in anyinstitution under its control, be it honor camp orECU.Does placing an inmate in an ECU—a prison system’smost restrictive housing environment—impose an atypical hardship where a 30-dayplacement in disciplinary segregation does not?The Sixth Circuit’s 2004 Austin decision says thatit does. In reaching this conclusion, the courtcompared conditions in the Ohio State PenitentiaryECU to those in Ohio’s general prisonOther courts have taken the same generalapproach taken by the Austin court in that theycompared conditions in the ECU with other, morecommon conditions in the prison system and alsoconsidered duration of the ECU placement. 98Most recently, the court in Colon v. Howard (a2000 case cited in footnote 98) used this approachand ruled that 305 days in ECU segregation at an94Wolff v. McDonnell, 418 U.S. 539 (1974).95Hewitt, 459 U.S. at 474, n. 7.96Sandin, 515 U.S. at 472, 484.97Cases that at least appear to embrace this approach include Luken v. Scott, 71 F.3d 192 (5th Cir. 1995); Talley v. Hesse,91 F.3d 1411 (10th Cir. 1996); Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997); and Fraise v. Terhune, 283 F.3d 506 (3dCir. 2002).98Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995), vacated on other grounds, 117 S. Ct. 1840 (1997); Hemphill v. Delo,105 F.3d 391 (8th Cir. 1997); Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997); and Colon v. Howard, 215 F.3d 227 (2d Cir.2000).

52Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITperhaps the most noteworthy of due processrelateddecisions concerning administrative segregation.100 Although Toussaint dealt with long-termsegregation units in an era before the term “supermax”had been coined, the segregated lock-upunits at San Quentin, Folsom, Soledad, and DeuelVocational Institute under review in the caseserved the same function that ECUs serve formany jurisdictions today: to house inmatesthought to be the most dangerous in the prisonsystem.While the segregation placements in Toussaintmay not have been as isolating as placement in amodern ECU unit can be, the units served thesame function, and conditions in the units wereonerous by any measure. Instead of the isolationof the modern ECU, inmates were exposed to theconstant din of multilevel tiers of cells, wherethey were housed 23 hours per day. Placementwas often measured in years. The district courtthat originally heard the case found conditions tobe unconstitutional in several respects, includingdouble-celling and inadequate heating and ventilation,plumbing, lighting, sanitation, exercise,and food. 101In ordering the corrections agency to conduct aWolff-based, disciplinary-type hearing as a conditionto placing inmates in these segregation units,the district court had relied largely on a conclusionthat placement prevented the inmate fromearning good time credits. This decision wasreversed on appeal. However, the appellate courtfound that language in various state regulationscombined to create a due process-protected libertyinterest under the Hewitt test. The appellatecourt rejected the lower court’s requirement of adisciplinary-type hearing, for two reasons: (1) thestate had a very strong interest in maintainingsecurity and safety, and that interest could becompromised through more complicated dueprocess proceedings; and, even more significantly,(2) a disciplinary-type hearing would be of littlevalue given the reasons inmates are placed inlong-term segregation. The Ninth Circuit’s reasoningin this case contains important insights forprison administrators:Given the disruptive propensities of theinmate population, we are especiallysensitive to the Supreme Court’s[Hewitt] admonition that “[t]he safetyof the institution’s guards and inmatesis perhaps the most fundamental responsibilityof the prison administration.”The state’s interest in maintainingsafety and security weighs heavily infavor of avoiding prolonged and cumbersomeadministrative proceedings.Finally, the value of Wolff-type procedureswas minimal in the context ofthe decision to segregate a prisoner foradministrative reasons. When determiningwhether the prisoner was guiltyof misconduct, as was the case inWolff, the inquiry is essentially factual.The prison administrator seeks todetermine whether the prisoner committedthe alleged offense. Whendeciding whether administrative segregationis needed, however, the administratorrelies largely on subjectivefactors:In assessing the seriousness of a threatto institutional security, prison administratorsnecessarily draw on more thanspecific facts surrounding a particular100Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).101Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C. Cal. 1984).

incident; instead, they must considerthe character of the inmates confinedin the institution, recent and longstandingrelations between prisoners andguards, prisoners inter se, and the like.In the volatile atmosphere of a prison,an inmate easily may constitute anunacceptable threat to the safety ofother prisoners and guards even if hehimself has committed no misconduct;rumor, reputation, and even moreimponderable factors may suffice tospark potentially disastrous incidents.The judgment of prison officials in thiscontext, like that of those making paroledecisions, turns largely on purelysubjective evaluations and on predictionsof future behavior; indeed,the administrators must predict notjust one inmate’s future actions, asin parole, but those of an entire institution.A trial-like proceeding isunlikely to inform a prison administratorregarding such subjectiveconsiderations. 102Relying on Hewitt, the Ninth Circuit said thatprison officials had to “hold an informal nonadversaryhearing within a reasonable time after theprisoner is segregated” and had to inform the prisonerof the “reasons for considering segregation”and that the inmate had to be “allowed to presenthis views.” 103 The court specified that due processdid not require any of the following:■ Written notice of charges.■ Representation by counsel or counselsubstitute.■ Opportunity to present witnesses.■ Written decision describing the reasonsfor placing the inmate in administrativesegregation.■ Disclosure of the identity of any person providinginformation about the proposedplacement. 104In Madrid (the Pelican Bay case), the court foundthat due process protections were necessary forplacement in California’s highly restrictive SHUand that the Hewitt-type process was sufficient. 105In McClary v. Kelly, 106 the court also held thatHewitt defined the amount of process due forplacement in an ECU. 107A Contrary ViewBut what about Austin? In considering the OhioDepartment of Corrections’ procedures for ECUplacement decisions, the Austin district court (in2002) and appeals court (in 2004) noted that theSupreme Court’s 1995 Sandin decision so underminedits earlier Hewitt decision that severity ofdeprivation had to be considered in determininghow much process was due inmates in ECUplacement decisions.53The 14th Amendment: Due Process and Placement102Toussaint, 801 F.2d at 1100 (emphasis added, internal citations omitted).103Id.104Id. at 1101.105Madrid, 889 F. Supp. at 1274.106McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. 1998).107Note that the Madrid decision came before the Supreme Court’s 1995 Sandin decision that made atypical hardship acondition for due process protections; McClary came after Sandin.

54Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITUsing a Hewitt-based process, the Ohio Departmentof Corrections had been giving inmates48-hour notice of classification committeereviews for possible ECU placement. Inmatescould appear before the committee and make oraland written presentations. Both the district courtand the court of appeals felt that even thoughplacement in Ohio’s ECU was a forward-looking,predictive decision, the loss the inmate faced—combined with the risk of error in the Department’ssimple hearing process—meant that dueprocess required a more adversarial, Wolff-typeprocedure.The court of appeals approved the district court’sorder in most respects. Most notably, the orderrequired the Department to give the inmate writtennotice of all the grounds being used to justifyplacement in “high maximum custody” statusplus a summary of the evidence prison officialswould rely on for placement. (Under the Department’srules, placement can occur only ifcertain historical, factual “predicates” exist.Placement cannot occur unless the inmate meetsone or more specified criteria; however, meetingone or more criteria does not mandate placement.)Interestingly, the Department’s policyrequired 48-hour notice, but the district court,which found that policy constitutionally deficient,only required 24-hour notice (as called for underWolff). 108 The appellate court did not change the24-hour notice aspect of the lower court decision.The court order also specified the following:■ Inmates can call witnesses and present documentaryinformation, unless doing so wouldbe unduly hazardous.■■■The Department must make a record of allclassification committee proceedings.Special precautions are necessary if theDepartment wants to rely on informationfrom confidential informants in making aplacement decision.If an official above the classification committeeconsiders information that the classificationcommittee has not considered, the inmatemust receive notice of this fact, a summary ofthe evidence involved, and an opportunity torespond in writing.Due Process and the Qualityof Placement DecisionsDoes more due process enhance placement decisions?In other words, will a proceeding thatresembles a disciplinary hearing lead to moreappropriate decisions regarding the prolongedconfinement of inmates in ECUs than are possiblewith a classification-type process? The sidebar“Comparing Wolff and Hewitt” addresses thisquestion.Meaningful NoticeThe notice in an ECU placement proceeding islikely to be quite different from the notice in adisciplinary hearing. The latter can and should bequite specific: “You are charged with violatingRule 06: assaulting an officer. The incident tookplace on January 27 at approximately 2 p.m. inthe dining hall. You struck Officer Jones withyour fist.” Time, place, and quite specific facts areincluded in the formal notice or in an officer’sreport attached to the formal charging document.108Austin v. Wilkinson, 189 F. Supp. 2d 719, 747 (N.D. Ohio 2002).

55Comparing Wolff and HewittThis summary compares two approaches to Comment—The biggest area of difference. Fordue process: (1) a disciplinary-type hearing, example, if the placement decision involves newas defined by the Supreme Court in 1974 factual determinations, such as the nature and(Wolff v. McDonnell); and (2) a classification-type extent of an inmate’s gang associations, an inmateprocess for placing inmates in long-term segregation,as defined by the Court in 1983 (Hewitt v. to rebut any allegations. However, as a practicalwith no right to call witnesses will find it difficultHelms).matter, could the inmate rebut these allegationsin a Wolff-type hearing? Probably not. This is whyPurposefactual determinations should be based on fair,Wolf: Determine after the fact whether the inmatethorough, and accurate investigations by theviolated a specific disciplinary rule; if so, impose ainstitution.sanction.DecisionmakerHewitt: Make a more general evaluation of inmate’sbehavior, associations, and attitude; thenWolff: Neutral decisionmaker.predict the inmate’s threat to safety and security. Hewitt: Not addressed.New factual determinations may or may not be Comment—The classification process is presumablyassociated with the decision.neutral.Comment—Hewitt discusses the nature of the Representationsegregation decision. ECU placements may beWolff: Right to assistance if the inmate is illiteratepredictably longer than what the Supreme Courtor otherwise unable to prepare and present theenvisioned in Hewitt, but the nature of thecase.decision is the same.Hewitt: Not addressed.NoticeComment—Assistance could be provided toWolff: Notice of charges at least 24 hours beforeinmates in the classification process.hearing.InformantsHewitt: Notice of reasons for proposed placement.Wolff: Protections to ensure that confidentialComment—No real difference, assuming theinformants are reliable and credible. (This requirementactually comes from post-Wolff decisions.)inmate receives the Hewitt notice before theplacement decision is made. However, a HewittHewitt: Not addressed.notice is likely to be more wide ranging and somewhatvaguer than a notice of charges in a disciplinaryhearing.in ensuring the reliability and credibility ofComment—The institution has its own interestinformants.HearingWritten DecisionWolff: Adversary-type hearing.Wolff: Written decision, indicating the evidenceHewitt: Nonadversarial hearing; the inmate hasrelied on and reasons for the sanction.an opportunity to present views. The institutiondecides whether the inmate’s presentation is oral Hewitt: Not addressed.or in writing.Comment—A properly developed administrativeComment—A Hewitt “hearing” could perhaps be process should generate a written decision, indicatingthe basis for the decision. A written decisionmore accurately described as a “meeting.”is important because it will be the basis for anyWitnessesappeal by the inmate, an element in any audit ofWolff: Right to call witnesses, unless a particularthe placement process, and, probably, the startingwitness would present a security or safety risk.point for any future reviews of the inmate’s status.Hewitt: No right to call witnesses.The 14th Amendment: Due Process and Placement

56Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITIn contrast, an ECU placementnotice starts with an assertionsuch as “you are considered tobe a threat to the security of theinstitution.” It then gives thereason(s) for the assertion, suchas “your long, assaultive disciplinaryrecord, and your associationwith gang activity.”Information about the inmate’sattitude and adjustment problemsmay also be included. In short, the noticecovers relatively large areas of concern, somequite specific (disciplinary record), others less so(e.g., gang affiliation and activity may be lessclear and/or based on informant information), andsome quite subjective (adjustment, attitude).Even though an ECU placement notice is likely tobe less specific than a disciplinary hearing notice,it should try to fairly explain what will be consideredin the placement decisionmaking process.Simply notifying the inmate that “we think youare a security threat” does not suffice. The 2004Austin decision helps to clarify what is required:not only a notice, but summaries of the evidenceprison officials plan to rely on in the placementprocess.Calling WitnessesSimply notifyingthe inmate that“we think you area security threat”does not suffice.author’s 30 years of experiencein writing and reviewingdisciplinary rules and prisondisciplinary processes. 109 )The factual basis of a longtermsegregation decision maybe clearly established (e.g., aninmate’s history of serious disciplinaryinfractions), but it islikely to be more complicated,involving factors such as intelligence informationabout gang activity or other illicit behavior thatindicates a threat but has not yet manifested itselfin disciplinary infractions. The factual basis maybe in the “suspicion” stage. If the institution hasstrong indications that an inmate is a danger tosecurity, does it wait until the suspicions areproven as fact, or does it segregate the inmate onthe basis of the suspicions? Suspicion-based decisionsare at least a possibility.The “facts” are only part of the placement decision.The other, arguably more important part isa predictive judgment, made in light of whateverinformation the institution has, about whether theinmate is enough of a threat to security (or whateverother criteria are being considered) to warrantplacement in the prison’s highest securityclassification.The inmate’s limited right to call witnesses in anECU placement process is probably the mostsignificant difference between this process andthe disciplinary hearing. However, the authoragrees with the Toussaint decision that a Wolffbased,disciplinary-like model will not improvethe quality of decisionmaking in the context ofECU placement. (This view is based on theHow much impact will an inmate’s ability to callwitnesses have on this decision? In the author’sopinion, little or none on the second part (thejudgment) and probably relatively little on thefirst part (the facts). For example, a witness sayingthe inmate is not an active gang member orinvolved in strong-arming activities is not likely109See William C. Collins, A Practical Guide to Inmate Discipline, 2d ed., Kingston, NJ: Civic Research Institute, 1997.

to sway decisionmakers who have informationto the contrary from a thorough institutionalinvestigation in which the decisionmakers haveconfidence.A related consideration is that even a Wolff-typehearing provides very limited protections for theinmate with regard to information from anonymousinformants. Due process may require thedecisionmaker to assess the credibility of theseinformants, but the inmate is notprivy to the information theassessment relies on and hasvirtually no way to rebut anyallegations. 110Perhaps if inmates had investigativeresources comparableto the prison’s and were fullyrepresented in the process, theycould develop information withenough credibility to standequally with the informationdeveloped by the institution.However, not even Wolff requiresthat level of assistance.Should such assistance be provided, the decisionprocess surely would become adversarial.Comparison to the parole decision providesanother useful perspective. As serious as a decisionto place an inmate in long-term segregatedconfinement is, is it more serious than the decisionto deny an inmate parole? The SupremeCourt has said that the parole considerationprocess satisfies due process if it only “affords anopportunity to be heard, and when parole isWhat is critical to afair and appropriateresult in this processis the quality ofthe investigationthat providesinformation fordecisionmakers.denied it informs the inmate in what respects hefalls short of qualifying for parole.” 111Thorough Investigation: The Key to FairDecisionsModeling procedural protections after Wolff islikely to provide only illusory safeguards forinmates in the ECU placement decisionmakingprocess. What is critical to a fair and appropriateresult in this process is the quality of the investigationthat provides informationfor decisionmakers. Thequality of the investigation iscritical because the decisionto classify an inmate into anECU is based on subjectiveinformation as well as historicfact, because the judgment isinherently predictive, andbecause the decisionmakeroften must consider substantialamounts of information compiledfrom a variety of sources.The appropriate model forECU placement decisions is anadministrative one in which decisions are basedonly on complete, reliable information about theinmate. An adversarial model is not appropriate.To some extent, the debate about procedural protections(see sidebar “The Due Process Debate”)misses the mark if it tries to choose betweenHewitt and Wolff. Neither of these cases addressesthe quality of information the institution developsto support reclassification. The Wolff adversarialprocess and right to call witnesses address the“quality of information” issue in theory, but the57The 14th Amendment: Due Process and Placement110McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982).111Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979).

58Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITThe Due Process DebateThe debate about what process is due aninmate facing possible ECU placement hasthree branches:1. No process is due. This is the ultimate argumentunder Sandin v. Conner.2. Placement in an ECU amounts to atypical deprivationunder Sandin and thus invokes dueprocess protections. The required protectionsare defined by Hewitt v. Helms and take theform of notifying the inmate and providingthe inmate with an opportunity to respond.This can be described as the Sandin/Hewittposition.theory is a long way from reality. An inmate isunlikely to be able to undercut the institution’sfactual assertions or demonstrate that those assertionsare based on sloppy investigatory work andshould not be credited.The largely administrative process that Californiafollowed in its segregation decisionmaking wasapproved by the courts in the 1995 Madrid finding.That process, which provided inmates withtwo opportunities for input, is discussed later inthis chapter.Evidentiary TestsPlacement decisions are judgmental and predictive,but they are not made on a whim. Officialsmust weigh the individual inmate’s interests innot being confined in an ECU against the largerinterests of safety and security of inmates, staff,and the institution in general. In such cases, thereis pressure on officials to weigh the larger interestsmore heavily, i.e., to err on the side of3. Placement is such a serious deprivation underSandin that the more expansive due processprotections in Wolff v. McDonnell arerequired. This is the Sandin/Austin position.Given that the goal of due process in any contextis to enhance the fairness of the decisionmakingprocess and to guard against arbitrary actions onthe part of the government, none of these threeoptions addresses the most important aspect ofthe ECU placement decision: the quality of theinformation on which the decision is based.caution for the larger prison community. However,placement decisions ultimately rest on afactual foundation. How “sound” must that foundationbe? How much evidence is required toconclude that an inmate presents such a seriousthreat that ECU placement is necessary?Ironically, the Austin decision, which imposes relativelystringent requirements for ECU placementdecisions, does not address questions about thequality or quantity of evidence necessary to supportsuch decisions. However, the courts haveprovided some guidance in earlier decisions.Even in regard to traditional inmate disciplinaryproceedings, the due process clause barely toucheson the question of the amount of evidencerequired. Years ago, the Supreme Court held thata finding of guilt in a disciplinary hearing thatinvolves deprivation of a liberty interest must besupported by “some evidence in the record.” 112 Toa court reviewing the evidence in a disciplinary112Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985).

hearing under this test, “the relevant inquiry iswhether there is any evidence in the record thatcould support the conclusion reached by theprison decision makers.” 113 This is a very lowlevel of judicial scrutiny. The court cannot substituteits judgment for the prison official’s as tothe weight of the evidence. It can only determinewhether the record contains any evidence thatcould have supported the finding.Courts apply the “some evidence” rule in the contextof administrative segregation placements. 114 Ifa court finds that the decision to place an inmatein an ECU involves a protected liberty interestunder Sandin, it probably will apply the “someevidence” rule in reviewing that decision. 115 Aspart of the “some evidence” review, a court is alsolikely to consider whether the evidence bearssome “indicia of reliability.” 116In Madrid, the court said that placement ofinmates in the Pelican Bay SHU because of gangaffiliation had to be based on information with“some indicia of reliability.” This meant that therehad to be some factual information “from whichthe IGI [Institutional Gang Investigator] and theclassification committee ‘can reasonably concludethat the information was reliable.’” 117 The sidebar“Applying Evidentiary Tests: A Case Study”describes now one court applied both the “someevidence” and “some indicia of reliability” tests.Applying Evidentiary Tests:A Case StudyIn a 2001 case, Koch v. Lewis, the district court appliedthe “some evidence” and “indicia of reliability” tests ina case involving an inmate who was placed indefinitelyin a special management unit (SMU) after the prisonvalidated his membership in a security threat group, theAryan Brotherhood (AB). This placement was likely to lastfor the rest of the inmate’s prison term, because gangmembers who entered the unit rarely left it.The validation, which took place in 1998, was based onthe following: a 1981 group photo in which the inmateposed with known AB members; testimony that AB membersnever pose for photos with nonmembers; informationthat the inmate had been seen in the company offour AB members (although no information about whatthey discussed); and two lists of AB members, seized frommembers, on which the inmate’s name appeared. aThe court accepted that this information established gangmembership. However, the court went on to concludethat membership alone would not support placement inthe SMU, citing a combination of conditions in the SMUand the fact that it was virtually impossible for inmatesto get out of the SMU if they were placed there becausethey were gang members. ba For an informative discussion of the Aryan Brotherhood, see DavidGrann, “The Brand,” The New Yorker, February 16, 2003, p. 157.b Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz. 2001).59The 14th Amendment: Due Process and Placement113Madrid, 889 F. Supp. at 1273, citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).114Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001).115A court has accepted results from properly performed polygraph tests under the “some evidence” rule (Toussaint v.McCarthy, 926 F.2d 800 (9th Cir. 1990)).116Madrid, 889 F. Supp. at 1274.117Id.

60Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITQuality of Information: TheInstitution’s ResponsibilityAssuming that an inmate receives notice of potentialplacement in the ECU, that the noticeexplains the reasons for the placement, and thatthe inmate has an opportunity to respond, afundamental concern—with clear due processimplications—remains: Is there a sound basis forthe decision? In other words, does the decisionmakerhave information that reasonably supportsa conclusion that the inmatefits one or more of theagency’s criteria for ECUplacement?As a determinant of the placementdecision, the quality ofthe information before thedecisionmakers is more importantthan the inmate’s opportunityto appear before them. Yetthe due process protectionsconsidered by the courts do notseriously address quality ofinformation. Therefore, institutionofficials must establishtheir own investigative processes to produce reliableinformation. They then must be prepared todemonstrate to a court that the process is designedto produce reliable information and that, in fact, itdoes so. 118With periodicreviews, as withthe initial ECUplacement decision,the managementrelatedinterests ofthe institution andthe concerns of thecourts coincide.workload-intensive element of the initial placementdecision is the investigative process thatproduces the package of accurate and reliableinformation that officials will consider in makingthe placement decision.Periodic ReviewsIn Hewitt, the Supreme Court said in a footnotethat periodic reviews of placements were required,lest administrative segregation“be used as a pretextfor indefinite confinement ofan inmate.” 119 The Court didnot prescribe the form such areview should take, how oftenit should take place, or evenwhat role the inmate shouldhave in the review, if any. Inthe Toussaint case, the NinthCircuit said that annual reviewswere too infrequent butdid not say what frequencywould be appropriate.To some extent, the frequencyof reviews will depend on thecircumstances surrounding an inmate’s placementin segregated confinement. If the initial placementis presumptively for an extended period, as is thecase in the typical ECU placement, very frequentreviews appear to have no productive purpose.Workload ConsiderationsA certain workload burden is imposed by notifyinginmates of proposed ECU placement andgiving them opportunities for input, but theburden is relatively insignificant. The mostWith periodic reviews, as with the initial ECUplacement decision, the management-relatedinterests of the institution and the concerns of thecourts coincide. The prison has no interest inkeeping someone in an ECU without good reason.If the concern that prompted the initial placement118The discussion of Jones’El in the chapter on mental health issues noted that shortcomings in a mental health screeningprocess (an expert pointed out errors in 4 of 20 files reviewed) contributed to the court’s finding that some inmates hadbeen improperly placed in the Wisconsin supermax facility. Officials should expect similar scrutiny of other aspects ofthe placement process.119Hewitt, 459 U.S. at 477, n. 9.

no longer exists and no other has arisen to take itsplace, there is no reason to keep the inmate in theunit.Periodic reviews were an issue in Madrid, and thecourt approved California’s practice of reviewingconfinement in Pelican Bay’s SHU every 120days. (The court did not indicate whether a longerreview period would be acceptable.) Madrid didinsist that officials record any evidence rejected inthe initial placement decision, to prevent the discreditedinformation from being considered laterto support retention in the ECU.The courts have generally been very reluctant toimpose demands on the review process (otherthan saying there must be one). In Hewitt, theSupreme Court said that new factual informationwas not necessarily required as part of theprocess. As discussed in the next section ongangs, the court in Madrid approved the practiceof holding inmate gang members in segregationuntil they renounced membership, disclosednames of other members, and revealed informationabout gang activities—even if an inmate’sbehavior in the ECU had been exemplary andeven though this “debriefing” would label theinmate as a snitch.Gang Membership asGrounds for ECUPlacement and RetentionA much more specific issue than the fundamentaldue process issues discussed above is the questionof whether gang membership alone can supportplacement and retention of inmates in ECU units.Two district courts have considered this question,and the two courts disagree.61The Koch decision, discussed earlier in this chapter,found that gang membership alone could supporta short-term placement (the term was notdefined) but that long-term placement (years orpossibly for life) could not be justified withoutsome indication of an overt act of misconduct.The program under review in Koch allowedinmates to get out of the ECU only if theyrenounced gang membership and named othergang members in a “debriefing.” If they did so,they were moved to another highly secure segregationfacility to avoid repercussions associatedwith being a “snitch.” No one who had beendebriefed had ever returned to the prison generalpopulation. Thus, it appeared that once segregated,a gang member would always live under someform of highly restrictive, segregated confinement.Defendants in Koch argued that inmates held thekey to release from ECU segregation throughrenouncing and debriefing, but then conceded thatrelease back to a normal prison existence was virtuallyimpossible. Would the court have been asconcerned about prolonged segregation if theseinmates actually could control their return to thegeneral prison population?In Madrid, the court was also concerned about theindeterminate placement of inmates in segregationbased solely on gang membership. As inKoch, a gang member’s only way out of the SHUat Pelican Bay was through renunciation anddebriefing. California officials also conceded thatdebriefing would cause an inmate to be labeled asa snitch. Noting credible evidence from prisonofficials that inmates joined gangs “for life,” theMadrid judge did not find that the policy ofrequiring debriefing for transfer out of the SHUviolated the constitution. 120The 14th Amendment: Due Process and Placement120Madrid, 889 F. Supp. 2d at 1278.

62Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITCalifornia followed a careful process for determininggang membership, although the processgave the inmate a relatively limited role. Informationon gang membership was gathered by theInstitutional Gang Investigator (IGI). Before recommendingvalidation of an inmate as a gangmember, the IGI met with the inmate to discussthe investigation results and hear the inmate’sviews. The final decision on gang membershipwas made by a central office committee, whichdid not meet with the inmate. The final decisionto transfer the inmate to the SHU was made by aclassification committee; at this point, the inmateagain had the opportunity to present his views.This process, said the district court in Madrid,met the requirements of Hewitt and provided areasonable factual basis for decisions. The inmatehad the required opportunity to present his viewsto the official making the gang membership determinationat the institution level. As noted earlier,the court also required that the placement decisionrest on an evidentiary basis that has “someindicia of reliability.” 121 At Pelican Bay, if informantinformation was considered in either the gangmembership validation process or the SHU placementprocess, the record included informationshowing the informant’s reliability.Following a process similar to Pelican Bay’s canprotect inmates from arbitrary placement in anECU. Such a process can also help the institutionensure that scarce and expensive ECU housing isnot wasted on inmates who do not need it.Other jurisdictions take a less dramatic approachto gang membership and activity. In Ohio, forexample, being a leader in a gang or other “securitythreat” group is grounds for ECU placement,but mere membership in such a group is not. 122 Agang member may be watched more closely thanother inmates, but he will not be placed in theECU unless he engages in overt gang activity. Aninmate who has been placed in the ECU becauseof gang activity can gain release from the ECU bydemonstrating through word and deed over timethat he has dropped out of the gang; a debriefing(naming other gang members) may not berequired. Once released, if he again demonstratesgang membership, he may be returned to theECU.The approach a department of corrections takes togang membership and ECU placement and retentionis a matter of agency policy. At this point,Koch is the only authority saying that membershipalone, without overt misconduct, will notsupport essentially permanent placement in ECUstatus. Madrid accepts that an initial gang membershipvalidation, properly done, can justify avery long ECU placement. Taking the toughapproach followed by Arizona (Koch) andCalifornia (Madrid) means an agency may facesome difficult litigation. Taking a more flexibleapproach may allow the agency to say more convincinglythat the inmate, through behavior hecan control, truly holds the key to moving out ofthe ECU environment and back into the prisonmainstream.SummaryCourts are uncertain as to whether placement inlong-term confinement under the very restrictiveconditions associated with the typical ECUimposes an atypical deprivation on an inmate and121Id. at 1273.122Austin, 372 F.3d at 351.

therefore requires due process protections. Untilthe courts speak more clearly on whether andwhat kind of due process is required in placementdecisions, corrections agencieswould be prudent to providebasic procedural protectionsthat are likely to meet a court’srequirements. Such protectionsalso serve prison officials’ owninterests in having an effectiveplacement decisionmakingprocess. These protectionsinclude the following:■■■Notify the inmate of theproposed placement. In thenotice, explain the reasonfor the placement.Give the inmate an opportunityto respond to thenotice in an informal, nonadversarialmeeting withofficials.Until the courtsspeak more clearlyon whether andwhat kind of dueprocess is requiredin placementdecisions, correctionsagencieswould be prudentto provide basicproceduralprotections thatare likely to meeta court’srequirements.Base placement decisionson reliably determined facts. In the nonadversarialcontext of the placement decision, “reliablydetermined” focuses more on theinstitution’s investigatory process than on resolutionof factual disputes at the meeting withthe inmate.■Determine the reliability ofinformants and the informationthey provide.■ Conduct periodic reviewsto determine the need forcontinued segregation.Give the inmate an opportunityto provide input forretention decisions.If a corrections agency hassuch procedures in place, it hastwo choices in responding tolawsuits that claim deprivationof due process in segregationplacement and retention decisions.It can argue, underSandin, that no due processprotections apply. Or it canpoint to its procedures as proofthat protections were provided.Even if the courts finally agreethat no due process requirements apply to thesedecisions, prisons will benefit from having a systematic,fair, fact-based decisionmaking process.63The 14th Amendment: Due Process and Placement

CHAPTER657Access to the CourtsThe ECU population includes the most violentinmates in the prison system. It mayalso include the most litigious. Everyaspect of the ECU’s operations may be targeted inlawsuits filed by inmates, without the aid of alawyer. One issue ECU inmates are likely to raiseis whether available resources give them meaningfulaccess to the courts. This chapter reviewsSupreme Court decisions concerning inmateaccess to the courts, how those decisions haveaffected inmate litigation, and implications forECU operations (including book paging/deliverysystems).Access to the CourtsSupreme Court RulingsIn 1977, the Supreme Court said in Bounds v.Smith that prison officials have an affirmativeduty to provide inmates, including those in segregation,with resources to allow them “a reliablyadequate opportunity to present claimed violationsof fundamental constitutional rights to thecourts.” 123 The Court reaffirmed this principle in1996, in Lewis v. Casey. 124123Bounds v. Smith, 430 U.S. 817 (1977).124Lewis v. Casey, 518 U.S. 343 (1996).

66Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITBounds spoke of officials meeting their obligationsby providing inmates with adequate lawlibraries or assistance from persons trained in thelaw. Over the years, most prisons opted to meetthe Bounds duty by providing law libraries. As aresult, the right of access to the courts has cometo mean, in day-to-day practice, the right to a lawlibrary.The 1996 Lewis decision emphasized that theright of access to the courts is not a right to a lawlibrary and that an institution does not necessarilyneed a library to meet its duties under Bounds. Inan aside not essential to its holding, the Courtalso noted that for inmates who cannot read, alibrary alone does not meet the Bounds-Lewisobligations.Providing adequate access to the courts forinmates in long-term segregation is particularlyproblematic. These inmates cannot congregate ina library. Book delivery systems are cumbersomeand have been criticized by courts in a number ofpre-Lewis decisions.Providing assistance from “persons trained in thelaw” also is problematic in ECUs. Allowing otherinmates to assist ECU inmates presents potentialsecurity problems and may not be feasible if theECU is a free-standing unit. Hiring lawyers, lawstudents, or lawyers to provide assistance may beexpensive and presents a variety of problems.The Institution’s ObligationsUnder LewisThe rules governing inmate access to the courtschanged somewhat with the Supreme Court’s1996 decision in Lewis. Although Lewis reaffirmedthe basic principle the Court stated 19years earlier in Bounds—that prison officials havean affirmative duty to provide some form of assistanceto inmates—Lewis also limited the scope oftopics for which assistance must be given. Lewisencouraged prison officials to experiment withdifferent ways of assisting inmates and made itmore difficult for inmates to win cases based onaccess issues.Limits on the Scope of Legal AssistanceUnder Lewis, the inmate’s right extends onlyto assistance in direct or collateral attacks onconvictions (criminal appeals and habeas corpuspetitions) and challenges to conditions of confinement(traditional “inmate rights” issues). Theright does not extend to other types of legal proceedings,such as family law issues. The rightapplies only to nonfrivolous claims, although theCourt does not suggest how a prison might determinewhether a claim is legally frivolous. (Forthis reason, it is very risky for an institution toattempt to evaluate the potential merits of aninmate’s claim in determining whether to provideassistance.)Language in the Lewis opinion suggests that institutionsneed provide assistance only in the initialphase of litigation (presenting the claim to thecourt), not necessarily in subsequent phases (trial,appeal, etc.) of litigating a claim to its conclusion.Because this is a very conservative reading of theopinion, it may not be prudent for institutions tobase their access policy on the assumption thattheir duty ends once an inmate successfully files acomplaint.However, in one pre-Lewis case, the courtapproved an access plan in which the correctionsdepartment contracted with a lawyer to representinmates and specified in the contract that the

lawyer could not represent inmates beyond the filingof the complaint. In that case, inmates did nothave access to a law library. 125 A post-Lewis decisionfrom the Seventh Circuit includes languagethat suggests a similarly narrow reading of accessrights. 126“Actual-Injury” Requirement forAccess LitigationUnder Lewis, it is difficult for inmates to successfullypursue access claims because to have standingto raise such claims in court, they mustdemonstrate that they were prejudiced in someway by the alleged lack of legal resources. Aninmate must show that deficiencies in legalresources either (1) caused dismissal of a claimon technical grounds or (2) made it impossibleeven to file a claim. Many post-Lewis cases havebeen dismissed because the inmate could notmeet the actual-injury requirement; in these cases,the courts never actually assessed the adequacy ofthe prison’s legal resources. Two case studiesillustrate the effects of the Lewis actual-injuryrequirement on access litigation (see sidebar“Effects of the Actual-Injury Requirements:Case Studies”).Although the actual-injury requirement may makeit more difficult for inmates to win access claims,that alone is not justification for institutions toreduce legal assistance. The dismissals of majorlawsuits such as Klinger and Walters may havebeen primarily a matter of timing; i.e., the newLewis actual-injury rule was applied to factsdeveloped in trials that took place prior to Lewis,when lawyers were not attempting to prove that67Access to the CourtsEffects of the Actual-Injury Requirement: Case StudiesWalters v. Edgar. In this classic pre-Lewis access-tocourtsclaim, a class of inmates in long-term segregationin an Illinois prison alleged inadequateaccess to legal materials. The prison used a pagingsystem, in which the inmates could request materialsfrom a central library. The district court foundthe legal resources inadequate under the traditionalBounds test. a However, knowing that Lewiswas pending in the Supreme Court, the districtcourt postponed its final order. After Lewis wasissued, the court decided that none of the namedplaintiffs met the actual injury test and dismissedthe case, despite the inadequacies it had found inthe prison’s paging system. The dismissal wasupheld on appeal. These results do not constitutea judicial seal of approval for paging systems; theymean only that the named plaintiffs could notshow injury.Klinger v. Department of Corrections. In this case,which involved inmates at a women’s prison inNebraska, the actual-injury requirement underLewis produced even more dramatic results. Thecourt found a “complete and systemic denial ofaccess to a law library or legal assistance prior toJanuary 1989” but dismissed the inmates’ claim“because none of the inmates suffered actualinjury or prejudice as a result of that denial ofaccess.” ba Walters v. Edgar, 900 F. Supp. 197 (N.D. Ill. 1995).b Klinger v. Department of Corrections, 107 F.3d 609, 617 (8th Cir. 1997).125Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).126Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).

68Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITspecific inmates suffered from inadequate legalresources. Proof of actual injury in such cases,although perhaps difficult to come by, at leasttheoretically exists. 127Experimenting With Alternative LegalResource ProgramsIn both Bounds and Lewis, the Supreme Courtencourages corrections agencies to experimentwith different ways of providing access to thecourts that would be valid unless an inmateproved the system was frustrating or impeded anonfrivolous claim. Portions of Lewis suggestthat the traditional, large law library may not berequired: “One such experiment, for example,might replace libraries with some minimal accessto legal advice and a system of court-providedforms…forms that asked the inmates to provideonly the facts and not to attempt any legalanalysis.” 128Another experiment might include building a systemof legal resources for inmates around CD–ROMs or Internet-based computer technology.As with any approach that assumes an inmatecan read, a computer-based system will not servethose who cannot. Whether inmates have theknowledge and skill to use the technology mightalso be an issue. Of course, any process thatinvolves the Internet requires safeguards to ensurethat inmates cannot roam the Internet freely.inmates with access to the courts. Inmatesrequested limited amounts of materials from alarge law library. If available, the materials orcopies were delivered, and when those werereturned, the inmate could make another request.Even when paging systems worked as designed,they made major legal research a long, tediouseffort.Many pre-Lewis access-to-courts cases examinedpaging systems and, in general, found themunconstitutional. Walters v. Edgar, discussed earlier,is typical of these cases. 129 (In Walters, thecourt found the paging system inadequate beforeultimately dismissing the case under the Lewisactual-injury requirement.)Problems with paging/book delivery systems forsegregation units include the following:■ Inmates do not know what is available in themain library.■ Inmates cannot get enough books at one timeto research an issue.■ The system fails to work as designed (e.g.,requests are lost, deliveries are late, materialsare unavailable).■ Literacy or language barriers prevent someinmates from using lawbooks.Paging SystemsHistorically, the paging system was probably themost common approach to providing segregatedIn light of the Lewis actual-injury requirementand the Supreme Court’s encouragement ofexperimentation (see earlier discussions in thischapter), the courts may have to take a second127On the other hand, the author knows of one long-running access-to-courts class action that plaintiffs voluntarily dismissedbecause they found no inmates who had suffered an actual injury and could, therefore, represent the class ofinmates.128Lewis, 518 U.S. at 352.129Walters, 900 F. Supp. 197, reversed on other grounds, Walters, 163 F.3d 430. See also Abdul-Akbar v. Watson, 4 F.3d195 (3d Cir. 1993), which held that the adequacy of a satellite library depends on other factors such as paralegal services;and Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990), which held that a combination of satellite libraries and inmatelaw clerks provides adequate access to courts.

look at paging/delivery systems for inmateshoused in segregated units. In one post-Lewisdecision, a district court flatly rejected the claimthat an inmate had a right ofphysical access to the library;the court noted that the inmatecould obtain extensive materialsand that his well-drawncomplaint and various othermotions indicated that thepaging/delivery system causedno actual injury. 130One lesson to be learned fromearly litigation involvingpaging/delivery systems is thatinstitutions must be able todemonstrate that the systemswork. They must show thatinmates can make requests,receive materials in a timely fashion, and getenough material to conduct a reasonable level ofresearch.Inmates Who Are Unable ToUse Legal MaterialsOne lesson to belearned from earlylitigation involvingpaging/deliverysystems is thatinstitutions mustbe able todemonstrate thatthe systems work.unable to pursue it for lack of ability to use availablelegal materials. The solution is some form ofassistance from persons trained in the law.In the general prison population,an inmate who is unableto use available legal materialsmay be able to get help fromanother inmate, either a “jailhouselawyer” or, in somejurisdictions, a trained inmatelaw clerk. However, in an ECUsetting, these forms of inmateto-inmateassistance couldraise serious security concernsand may not be feasible.Allowing one ECU inmate toassist another may also raiseconcerns for the administrator.The “cleanest” way of delivering legal servicesfor inmates unable to use written legal materialsis through lawyers or paralegals. 131 The importantpoint is that some form of assistance from personstrained in the law will be necessary for atleast some inmates housed in ECUs.69Access to the CourtsAn effective paging/delivery system may sufficefor inmates who can read and understand librarymaterials. However, exclusive reliance on anyform of library system, which ultimately dependson the inmate’s ability to read and understand relativelycomplicated material, remains problematicfor illiterate inmates, inmates who cannot readEnglish, and inmates who have very limited intellectualcapacity. Sooner or later, an ECU inmatewill have a valid, nonfrivolous claim but will beSummaryECU inmates have the same fundamental right ofaccess to the courts as other inmates. ECUinmates tend to be very litigious, and institutionsshould expect them to challenge any program thatdoes not provide full access to a complete lawlibrary or extensive assistance from personstrained in the law. However, under the SupremeCourt’s 1996 decision in Lewis v. Casey, inmates130Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico 1997). See also Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.Ind. 1996): “Standing alone, delay and inconvenience do not rise to the level of a constitutional deficiency.”131See Carper, 54F. 3d 613.

70Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITmust demonstrate actual injury before they canhave standing to raise an access-to-courts claim.The prison’s affirmative duty is to provide somelevel and form of resources to support, in a meaningfulway, inmates’ right of access to the courts.Traditional paging systems, once generally foundinadequate by the courts, may pass muster underLewis if the institution can demonstrate that thesystem works properly. However, any librarybasedsystem does not meet the needs of inmateswho cannot read English; these inmates requiresome form of legal advice.In Lewis, the Supreme Court invites prisonadministrators to experiment with how they fulfilltheir duty to provide meaningful legal resources.Such experiments might include systems that useCD–ROM or Internet technology. Any system aprison uses to provide legal resources in the ECUis sure to be challenged at some point.

CHAPTER8The First Amendment:Religion, Speech,and the PressAmong the losses inmates face when they enteran ECU are those associated with reduced opportunitiesto engage in religious practices andreduced access to mail and publications. At leastto some degree, such reductions raise questionsunder the First Amendment. This chapter looks atthe Supreme Court’s test for evaluating restrictionsof First Amendment rights and then focuseson legal considerations related to inmates’ religiouspractices.71The First Amendment: Religion, Speech, and the PressSupreme Court Test forEvaluating First AmendmentRestrictionsIn the 1987 case Turner v. Safely, the SupremeCourt held that prison officials can restrict aninmate’s First Amendment rights if the restrictionis reasonably related to a legitimate penologicalinterest, such as security, order, safety, or rehabilitation.132 Turner requires the courts to ask fourquestions when evaluating a restriction of a FirstAmendment right:132Turner v. Safely, 482 U.S. 78 (1987).

72Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT1. Is there a valid, rational connection betweenthe restriction and a legitimate penologicalinterest? Example: Does not allowing ECUinmates to attend group religious services furthera security interest of the prison?2. Does the inmate have alternative ways toexercise the right in question? Example: Caninmates who may not attend group religiousservices exercise their religious beliefs intheir cells?3. If the inmate’s request were accommodated,what would be the impact on staff, inmates,and institution resources. Example: Wouldallowing an ECU inmate to attend groupreligious services create security problemsbecause the inmate would need to be movedand because of the group setting?4. Is there an obvious, readily available alternativeto restricting the First Amendment rightin question? (If the answer is yes, the institution’saction probably is not reasonable but isin fact an exaggerated response to a concern.)Courts rarely strike down a restriction onFirst Amendment-protected activity on thisground.In applying this four-part test, courts are expectedto show substantial deference to the judgmentcalls of prison officials, especially in regard toitems 1 and 3. So, for example, if an official saysthat lack of a particular restriction “might” createa security problem, a court will generally defer tothat judgment and uphold the challenged restrictionunder the Turner test.Meeting the demands of the Turner test is notdifficult, especially when dealing with inmateswho are the highest security risks in a prison system.However, if administrators impose a FirstAmendment restriction, the institution bears theburden of justifying the restriction under the fourpartTurner test.Applying the Turner test, the Eighth Circuitfound no First Amendment violation in prohibitinga Native American inmate from having ceremonialpipes, medicine bags, eagle claws, andaltar stones in administrative segregation. 133 In asimilar case, a district court upheld a rule thatprohibited inmates in segregation from attendinggroup religious services. 134 Both of these casesinvolved clear security concerns.In the absence of clear security concerns, however,First Amendment restrictions may be more difficultto defend. For example, courts recentlyfound that denial of a Kosher diet to Jewishinmates is not justifiable under the Turner test. 135These cases dealt with general population inmatesand considered only Kosher diets (not religiousdiets in general). Two of the cases (Johnson v.Horn and Ashelman v. Wawrzasek) acknowledgethat a prison has a legitimate interest in a simplifiedfood service system. Although it could beargued that the impact of these cases will be limitedand should not affect ECU inmates, a betterreading is that the cases constitute a forewarningabout restrictions on religious diets. Correctionsofficials should examine their policies in the contextof this growing body of case law to determinewhat, if any, changes should be made withregard to ECU inmates’ religious diets.133Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).134Germunde v. Cook, 684 F. Supp. 255 (D. Utah 1988).135Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), in which prison officials conceded that inmates were entitled to someform of Kosher diet; Ashelman v. Wawrzasek, 111 F.3d 647 (9th Cir. 1997); and Bass v. Coughlin, 976 F.3d 98(2d Cir. 1992). However see Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987), which held that a pork-free dietsufficiently met a Muslim inmate’s dietary concerns.

The Religious Land Use andInstitutionalized Persons ActIn the summer of 2000, Congress passed theReligious Land Use and Institutionalized PersonsAct (RLUIPA), 42 U.S.C. § 2000cc–1. Thisstatute, which for corrections purposes is essentiallythe same as the Religious Freedom RestorationAct of 1993, attempts to replace theinstitution-friendly Turner test for evaluatingrestrictions on First Amendment religious rightswith a more demanding test for evaluating restrictionson religious practices specifically. The provisionsof RLUIPA apply to a prison if it or thecorrections department of which it is a partreceives any federal funding, which means itwill apply to virtually all ECUs.Under RLUIPA, any “substantial burden” on aninmate’s practice of religion must further a “compellinggovernmental interest” and be the “leastrestrictive” means of doing so. Although courtswill generally accept security as a compellinggovernmental interest for a restriction, the “leastrestrictive” test invites a court to second-guess aparticular restriction and ask why some otheralternative was not chosen.Restrictions on religious practices in high-securityunits are commonplace. Perhaps because theserestrictions could easily be defended under theTurner test, their validity has almost becometaken for granted. RLUIPA may force reexaminationof many of these restrictions.In RLUIPA, Congress attempted to avoid the flawthe Supreme Court found in the Religious FreedomRestoration Act when it declared that statuteunconstitutional as applied to state and local governments.136 At the time this monograph was written,federal appeals courts disagreed as towhether RLUIPA violates the establishmentclause of the First Amendment. 137Inmate Religious PracticesNot Mandated by FaithFaced with an inmate request for some type ofspecial privilege related to a religious practice,corrections officials naturally tend to ask leadersof the inmate’s faith whether the faith requiresbelievers to engage in that practice. If the answeris no, that the practice is left to the individual,officials are likely to deny the request.Some courts have overruled such denials, sayingthat First Amendment protections do not hinge onwhether a particular practice is mandated by theinmate’s faith. 138 Levitan v. Ashcroft, cited in footnote138, provides a good example. An inmate atthe Federal Prison Camp in Pensacola, Florida,wanted to have wine as part of the Catholic sacramentof communion. However, a change in theFederal Bureau of Prisons policy forbade inmates’use of wine in communion. The districtcourt upheld the no-wine policy, saying that winewas not required by the Catholic Church. Thecourt of appeals reversed the decision, saying thatif the inmate’s belief (in the importance of havingwine, not just grape juice) was sincere and basedon his religious convictions, that was enough totrigger First Amendment protections.The Levitan decision does not say that inmateshave a constitutional right to have wine with73The First Amendment: Religion, Speech, and the Press136City of Boerne v. Flores, 521 U.S. 507 (1997).137Decisions supporting the law include Charles v. Verhagen, 348 F.3d 610 (7th Cir. 2003) and Madison v. Riter, 355F.3d 310 (4th Cir. 2003). Taking the opposite view is Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003). More decisionsabout the law probably will have been reached by the time this monograph is published, and a Supreme Court reviewseems both inevitable and necessary.138Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002); LaFevers v. Saffle, 936 F.3d 1117 (10th Cir. 1991).

74Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITcommunion. It says thatalthough the Bureau’s reasonfor denying the wine requestwas not valid, the restrictionstill might be defensible underthe Turner test (i.e., whetherthe restriction is reasonablyrelated to a legitimate penologicalinterest). If the inmatewere to raise a RLUIPA issue(see previous section), therestriction would be analyzedunder the RLUIPA test, whichis more demanding than theTurner test.The point of this discussion is not whetherinmates have a right to wine with communion.The point is that if a practice has even the slightestsupport from an inmate’s faith, courts mayextend First Amendment protections to the practiceand require officials to justify restricting orbanning it, through either the Turner test or theRLUIPA test. Knee-jerk denials of requests simplybecause they are not required by the inmate’sfaith may find little favor with a reviewing court.If officials want to raise the “it isn’t required”argument when an inmate challenges their denialof a request, they should also present argumentsbased on the Turner and/or RLUIPA tests, indicating,for example, how the restriction addresseslegitimate security concerns and why a lessrestrictive option is not viable. Because of theECU’s very substantial security concerns, sucharguments have a better chance of success than an“it isn’t required” defense.Only in the clearestcircumstancesshould prisonofficials deny arequest on the basisthat an inmate’sbeliefs are insincere.Sincerity ofBeliefsThe First Amendment extendsprotections only to sincerelyheld religious beliefs. If theinmate is not sincere about hisreligious beliefs and practices,then the institution has no dutyto accommodate them, and acourt will not ask the institutionto show a legitimate reasonfor imposing bans orrestrictions on them.It is, however, difficult to mount a successfuldefense based on the premise that an inmate’sreligious beliefs are not sincerely held. Neither along criminal history nor a notorious institutionalrecord shows insincerity, although both could berelevant to the inquiry. That an inmate does notfollow every tenet of a faith does not necessarilyshow insincerity. 139In assessing an inmate’s sincerity, officials shouldkeep in mind that the seclusion and idleness ofthe ECU may lead some inmates to examine andrenew their religious beliefs or embrace newbelief systems. Others may simply want to participatein one of the few programs the ECU offers,to fill time. Some may look at religious issues asfodder for litigation.Convincing a court that an inmate’s religiousbeliefs are not sincere probably will require a relativelycomplicated showing of facts. The burden139Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).

will be on the prison officials to convince thecourt that the inmate is not sincere in his beliefs.Only in the clearest circumstances should prisonofficials deny a request on the basis that an inmate’sbeliefs are insincere. As with the “it isn’trequired” defense discussed above, the “lack ofsincerity” defense should, if possible, be accompaniedby arguments based on the Turner and/orRLUIPA tests.SummaryThe restrictive environment of the ECU can raiseFirst Amendment issues. In considering inmates’demands regarding religious and other types ofactivities, corrections officials should be aware ofhow the courts may review their response.The Supreme Court, in Turner v. Safely, defineda four-part test for evaluating whether a particularFirst Amendment restriction is justified. Institutionshave not found it difficult to meet this test,which basically requires a reasonable connectionbetween a restriction (e.g., not allowing ECUinmates to attend group religious services) and alegitimate penological interest (e.g., security).When restrictions on religious practices are atissue, institutions may also need to show why aless restrictive alternative was not possible. Ingeneral, an institution’s defense of a challengedrestriction should not rely solely on an argumentthat a particular practice is not mandated by theinmate’s faith or that the inmate’s religious beliefsare not sincerely held.75The First Amendment: Religion, Speech, and the Press

77Closing ThoughtsClosing ThoughtsThe concept of an extended control unit—the “supermax prison”—is now embeddedin American corrections. Planning forthe creation of an ECU is an experience that stillawaits many agency officials. But for those currentlyresponsible for operating ECUs, a majorchallenge lies in recognizing just how many legalissues can arise and supervising operationsaccordingly.Based on a limited body of case law, it can beconcluded that the most significant legal issuesfacing ECUs are those concerning inmates whoare mentally ill or whose behavior suggests theymay be mentally ill. Are there some inmates whoshould not be placed in an ECU? If so, who arethey and how can they be screened out? Are thereothers whose mental status is harmed by living inthe ECU? If so, how can they be identified andmoved elsewhere?The issue then moves beyond the scope of thismonograph. Where does a prison system placeinmates who (1) present a high security risk but

78Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT(2) cannot be placed or held inan ECU? Must a new type ofhigh-security mental health unitbe developed? Can ECU operationsbe modified to accommodatesome or all of this (as yetsomewhat vaguely defined)group of inmates?Even setting these issues aside,ECUs may be the most difficulttype of prison to operate, giventhe nature of the inmates typicallyplaced in them. CertainlyECU inmates and the managementstrategies used to control them give rise to aprison system’s most concentrated, intense legalconcerns.Services that are especially critical from a legalperspective—such as those related to medical andmental health care and access to the courts—aredifficult to deliver in ECUs. Use of force is anever-present issue in the ECU, where inmatebehaviors test officers’ professionalism. In theabsence of close supervision and review, use offorce can deteriorate into endemic abuse of force.The keys to avoiding legal pitfalls and reducingliability exposure are the same in the ECU as anywhereelse in the prison system:■■An informed assessment of the needs andcharacteristics of the target population.A clearly defined mission and a comprehensiveplan of operation.Certainly ECUinmates and themanagementstrategies used tocontrol them giverise to a prisonsystem’s mostconcentrated,intense legalconcerns.■■■Careful development ofpolicies and procedures,with a close eye to legalissues.Funding and staffing commensuratewith theidentified needs andmission.Training to promote a skillfuland knowledgeableworkforce.■ Perhaps most importantly:commitment on the part ofsupervisors and managers—from sergeant to wardento agency head—to ensuring humane andlegal operations.If these factors are ignored—especially if supervisionand management are lax—the ECU canbecome fertile ground for destructive interactionsbetween staff and inmates. The result will beintervention by the courts.In seeking to minimize exposure to liability,should corrections agencies look beyond thesetraditional, internal approaches and considerexternal sources of assistance? One possibilitywould be to solicit an outside review—perhapsfrom professionals who operate what the fieldrecognizes to be top-notch ECUs—that asks “howare we doing?” Another would be to invite mentalhealth experts into the facility to evaluate criticalinmate mental health issues and perhaps to conductformal peer reviews of mental health-relateddecisions.

Periodic external reviews of ECU operations offeran important advantage: perspective. Problemscan develop slowly and incrementally. Whatsomeone looking at the facility for the first timeidentifies as a fairly obvious problem may beessentially invisible to those who work therebecause the problem crept insidiously into operationsand became part of the institutional culture.The external review may be able to identify“problem creep” and give ECU managers importantfeedback in time to address potential constitutionalissues before they reach litigation.79Closing Thoughts

81Table of CasesTable of CasesAbdul-Akbar v. Watson, 4 F.3d 195 (3d Cir.1993).Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir.1996).Ashelman v. Wawrzasek, 111 F.3d 674 (9th Cir.1997).Austin v. Wilkinson, 189 F. Supp. 2d 719 (N.D.Ohio 2002).Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D.Ohio 2002).Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).Bass v. Coughlin, 976 F.3d 98 (2d Cir. 1992).Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).Bounds v. Smith, 430 U.S. 817 (1977).Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987).Chambers v. Riveland, 189 F.3d 472, 1999 WL595366 (9th Cir. 1999, unpublished).

82Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITCharles v. Verhagen, 348 F.3d 610 (7th Cir.2003).City of Boerne v. Flores, 521 U.S. 507 (1997).Colon v. Howard, 215 F.3d 227 (2d Cir. 2000).Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz.2002).Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).Davenport v. DeRobertis, 653 F. Supp. 649 (N.D.Ill. 1987).Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y.1996).DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.2001).Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico1997).Doe v. Delie, 257 F.3d 309 (3d Cir. 2001).Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994).Estelle v. Gamble, 429 U.S. 97 (1976).Farmer v. Brennan, 511 U.S. 825 (1994).Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002).Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL21462603 (7th Cir. 2003).Gaudreault v. Municipality of Salem, 923 F.2d203 (1st Cir. 1990).Germunde v. Cook, 684 F. Supp. 255 (D. Utah1988).Giampetruzzi v. Malcom, 406 F. Supp. 836(S.D.N.Y. 1975).Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995),vacated on other grounds, 117 S. Ct. 1840(1997).Greenholtz v. Inmates of Nebraska Penal andCorrectional Complex, 442 U.S. 1, 16 (1979).Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997).Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988).Helling v. McKinney, 509 U.S. 2475 (1993).Hemphill v. Delo, 105 F.3d 391 (8th Cir. 1997).Hewitt v. Helms, 459 U.S. 460 (1983).Hill v. DeKalb Regional Youth Detention Center,40 F.3d 1176 (11th Cir. 1994).Hudson v. McMillian, 503 U.S. 1 (1992).Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998).Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir.1989).Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.Ind. 1996).Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D.Wisc. 2001).Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal.1966).Klinger v. Department of Corrections, 107 F.3d609 (8th Cir. 1997).Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz.2001).LaFevers v. Saffle, 936 F.3d 1117 (10th Cir.1991).LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir.2002).Lewis v. Casey, 518 U.S. 343 (1996).Luken v. Scott, 71 F.3d 192 (5th Cir. 1995).

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal.1995).Martinelli v. Dugger, 817 F.2d 1499 (11th Cir.1987).May v. Baldwin, 109 F.3d 557 (9th Cir. 1997).McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.)2001).McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y.1998).McCollum v. Miller, 695 F.2d 1044 (7th Cir.1982).McGuckin v. Smith, 974 F.2d 1050 (9th Cir.1992).Mitchell v. Maynard, 80 F.3d 1433 (10th Cir.1996).Nelson v. Collins, 455 F. Supp. 727 (M.D. Md.1978).Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997).Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999).Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).Sandin v. Conner, 515 U.S. 472 (1995).Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997).Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy.2002).Superintendent, Massachusetts CorrectionalInstitution, Walpole v. Hill, 472 U.S. 445, 454(1985).Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994).Talley v. Hesse, 91 F.3d 1411 (10th Cir. 1996).Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va.2000).Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001).Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997).Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C.Cal. 1984).Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986).Toussaint v. McCarthy, 926 F.2d 800 (9th Cir.1990).Turner v. Safely, 482 U.S. 78 (1987).Vitek v. Jones, 445 U.S. 480 (1980).Walters v. Edgar, 900 F. Supp. 197 (N.D. Ill.1995).Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).Washington v. Harper, 494 U.S. 210 (1990).Wilson v. Seiter, 501 U.S. 294 (1991).Wolff v. McDonnell, 418 U.S. 539 (1974).Wood v. Housewright, 900 F.2d 1332 (9th Cir.1990).Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal.1976).83Table of Cases

85Table of AuthoritiesTable of AuthoritiesCohen, Fred. 1998. The Mentally DisorderedInmate and the Law. Kingston, NJ: CivicResearch Institute.Collins, William C. 1997. A Practical Guide toInmate Discipline, 2d ed. Kingston, NJ: CivicResearch Institute.Grann, David. 2003. “The Brand.” The NewYorker, February 16, p. 157.Grassian, Stuart. 1983. “PsychopathologicalEffects of Solitary Confinement.” AmericanJournal of Psychiatry 140:1450–1454.Grassian, Stuart, and Friedman, Nancy. 1986.“Effects of Sensory Deprivation in PsychiatricSeclusion and Solitary Confinement.”International Journal of Law and Psychiatry8:49–75.Haney, Craig, and Lynch, Mona. 1997. “RegulatingPrisons of the Future: A PsychologicalAnalysis of Supermax and Solitary Confinement.”NYU Review of Law and Social Change 23:477.

86Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNITHuman Rights Watch. 1997. Cold Storage,Super-Maximum Security Confinement in Indiana.New York, NY: Human Rights Watch.King, Roy D. 1999. “The Rise and Rise ofSupermax: An American Solution in Search of aProblem.” Punishment and Society 1(2):163–184.Kupers, Terry A. 1998. “The SHU Syndromeand Community Mental Health.” CommunityPsychiatrist 12(3), summer.National Institute of Corrections (NIC). 1997.Supermax Housing: A Survey of Current Practice.Washington, DC: U.S. Department of Justice,NIC. Special Issues in Corrections, March.Riveland, Chase. 1999. Supermax Prisons:Overview and General Considerations.Washington, DC: U.S. Department of Justice,National Institute of Corrections.Stoner, John W. n.d. Analysis of mental healthservices and treatment of mentally ill inmates atSupermax Correctional Institution (SMCI),Boscobel, Wisconsin. Unpublished documentsubmitted in litigation.Stoner, John W. 2002. Management of Violent,High Risk, and Supermax Offenders. Washington,DC: U.S. Department of Justice, NationalInstitute of Corrections. Training Program.Terrell, Steve. 2003. “Corrections DepartmentSettles Prison Lawsuit,” The New Mexican,May 22.

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