Maybe Death Is Better

Maybe Death Is Better

Shortly after her conviction on a capital murder charge for killing her lover, TruTV obsession Jodi Arias released a statement in which she said she’d rather die now than face a long stretch of imprisonment, probably for life.  She’s 32 years old.  In today’s climate of prisoner warehousing, control units and barely existent medical care, one can’t blame her.

Dzhokhar Tsarnaev, the surviving Boston Marathon Bomber, might feel the same way.  He is presently at a federal prison hospital, and when he reaches a basic level of recovery from his injuries incurred from his capture, Tsarnaev — 19 years old — likely faces isolated confinement for the rest of his life.  The boxcar-like existence might only last for a decade or two if he is sentenced to death.  Yet, if he is “lucky” enough to receive a life sentence of imprisonment as his punishment, Tsarnaev could spend as much as fifty (50!) years or so in such conditions.  A mind-boggling prospect, to say the least.

Prison is no bargain in the best of circumstances, but anyone who has spent even a few months in a control unit or even a more basic Special Housing Unit (“SHU” or “the Hole”), can probably understand the despair Arias or Tsarnaev must be experiencing right now.  Around-the-clock lockdown, with maybe a few one-hour “recreation” sessions in an “outdoor” dog-run enclosure each week, the only sunlight available in such an existence.

There are no more windows to stare out wistfully.  Today’s control units are designed to minimize — extinguish — any outside stimulation.  Especially human contact.  For Tsarnaev, whatever life he has left on this planet, his existence within the Federal Bureau of Prisons will likely be limited to a concrete rectangle at the Bureau’s Administrative Detention Facility in Florence, Colorado, the notorious ADX prison.  The Unabomber is there.  So are a number of Islamist terrorists convicted in U.S. Courts, and other high-profile criminals, including mob bosses and gang leaders.  ADX is an odd hodgepodge of miscreants, without a doubt.  And some of them need to be locked away from others — even their fellow prisoners.  According to federal regulations, the BOP has ADX and other “control units” for “those inmates being a threat to others or to the orderly operation of the institution.” 258 C.F.R. § 541.40.

Yet, there is a growing chorus of observers who assert that enforcement in control units amounts to torture.  Naturally, Amnesty International, Human Rights Watch, American Civil Liberties Union, and other civil rights organizations have been at the fore, but even the United Nations has stepped into the fray.  In a December 2012 meeting in Buenos Aires, the United Nations Intergovernmental Expert Group Meeting discussed further developing the existing Standard Minimum Rules (“SMRs”) for the treatment of prisoners.  The existing SMRs, and the proposed changes to them, were examined by this group, which included delegates from the United States, and will have great influence on the U.N.’s Commission on Crime Prevention and Criminal Justice, which meets in 2014 to officially adopt revisions to the existing SMRs for international use.

Given the size of the American prison industry, it should come as no surprise that the United States objected to several proposed SMR revisions, one of them addressing caps on the duration of isolated confinement.  Given America’s powerful voice in such matters, the Expert Group declined to make recommendations as to such confinement.  Instead, in the end, it rather meekly noted it had “discussed” the issue, a large step back from the position taken during the actual discussions.  As the Supreme Court has approved Supermax confinement as recently as 2005, see Wilkinson v. Austin, 545 U.S. 209, 221 (2005), the control units and isolated confinement that many say amount to torture appears to be here to stay.  At least for the foreseeable future.  Indeed, within the last few years, the Federal Bureau of Prisons has greatly expanded its use of control units and “special management units,” converting several entire prisons for lockdown use.

Given Mr. Tsarnaev’s notoriety, it seems likely that these facts add up to a miserable future for him and probably for Ms. Arias, too.  No matter how long they may live, both appear destined for isolated confinement for the remainder of their days.  Is that a fate worse than death?  Fortunately, most of us will never have to face such a question.  But for those who have endured extensive confinement under those circumstances, the answer could go either way.  Perhaps it’s time we, as a nation, take a hard look at how we treat our prisoners.  As we claim to stand as the model of enlightened governance, the word torture should never even enter the conversation.

Editorial Note: In 2012, the author spent 5 months in a Federal Bureau of Prisons’ Special Housing Unit (SHU).  This intensive confinement occurred at FCI Petersburg, the medium-security federal prison where he had been housed for the past 5 years.  He was placed in the SHU for allegedly violating the BOP’s disciplinary code, specifically conducting a business.  The charges were not for doing anything wrong but were targeted at the author’s writings, some of which had been critical of the BOP (his book Education Behind Bars: A Win-Win Strategy for Maximum Security had been released less than a month prior to the solitary confinement).

The 23 to 24 hours a day that he was locked in a small, dingy, and loud cell was a form of censorship that the prison administration at FCI Petersburg was employing.  Proof of this came after many months of fighting the wrongful confinement in the SHU.  Eventually, all three of the incident reports were expunged by the BOP’s Mid-Atlantic Regional Office.

The Prison Law Blog has taken the stance that confinement in a control unit or a Special Housing Unit should only be used in the most extreme of circumstances.  This means prisoners repeatedly escaping, murdering fellow prisoners or prison guards, or some other severe and extreme causation.  Control units are too damaging to place the average prisoner in them.  They hurt those confined in them.  The letters the author sent during his confinement in the SHU, and the deteriorating quality and thought processes contained therein, are clear evidence of this concrete and irreproachable fact.  While the author has managed to shake off most of the damage done by his long-term solitary confinement, his experiences, words, and ideas about it have greatly helped to enlighten our perspective on this most troubling issue.

Simply stated: In almost all circumstances, the Prison Law Blog does not support the utilization of control units or special housing units.