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Americans Face Guantanamo-Like Torture Everyday in a Super-Max Prison Near You

To little public outcry, tens of thousands of citizens are being held in horrific conditions in super-harsh, super-maximum security, solitary-confinement prisons.

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Summing up the major pragamatic arguments, Sharon Shalev of the London School of Economics and author of a recent prizewinning book,  Supermax: Controlling Risk Through Solitary Confinement, says, “Supermax prisons are expensive, ineffective, and they drive people mad.”

So what can be done?

Legally, solitary confinement is not likely to be considered torture anytime soon. According to legal scholar Jules Lobel, when the Senate ratified the Convention Against Torture, it qualified its approval so much that under the U.S. interpretation “the placement of even mentally ill prisoners in prolonged solitary confinement would not constitute torture even if the mental pain caused thereby drove the prisoner to commit suicide.” And despite the Constitution’s prohibition of “cruel and unusual punishment,” courts have refused to see supermax confinement per se as unconstitutional. Lawsuits on behalf of the mentally ill have had more success. In New York a suit brought about the creation of a residential mental-health unit for prisoners, with another on the way, plus more time out of the cell for the mentally ill. Still, fifteen years after  Madrid v. Gomez, court-ordered reform has been infrequent and its implementation contested.

Supermax torture wasn’t instituted because of a utilitarian calculation about dollars and cents.

There are other roadblocks to legal action. Thanks to the Prison Litigation Reform Act, a law signed by President Bill Clinton that restricts an inmate’s right to sue corrections officials, an individual prisoner has little ability to mount a court challenge to his placement or prison conditions. For example, before going to court, a prisoner is required to exhaust the prison grievance system—a dilatory process seemingly designed to lose or chew up inmate complaints. And on the rare occasions when prisoners make it to court, they usually have to represent themselves. Unlike at Guantánamo, lawyers from prosperous Manhattan firms are not lining up to offer services pro bono to penniless supermax inmates.

Activists who see supermaxes as torture chambers are increasingly looking beyond legal action and toward pressure on legislatures and governors. These reformers want states to abolish supermaxes or at least to reduce their reliance on prolonged solitary confinement and provide mental-health care and rehabilitation for disturbed and difficult prisoners. A persistent grass-roots group in Illinois, Tamms Year Ten, has extracted promises from the state to improve conditions at Tamms. The Vera Institute of Justice, a New York–based think tank, has begun working with officials in Illinois and Maryland to reduce the number of prisoners in isolation. Vera is trying to apply lessons from Mississippi, where American Civil Liberties Union (ACLU) lawsuits resulted in perhaps the most significant U.S. supermax reform, shrinking the population of its infamous Parchman penitentiary supermax from one thousand to 150. Mississippi expanded its mental-health, education, and recreation programs for supermax inmates and, as they improved their behavior, moved them to the general prison population.

Early this year a Maine prison-reform coalition, aided by the National Religious Campaign Against Torture and the ACLU, lobbied the state legislature to pass a bill to limit terms of solitary confinement to 45 days and prohibit people with “serious mental illness” from being assigned to the supermax. Although the majority-Democratic leadership supported the bill, it failed. In its place the legislature launched a study of solitary confinement, and activists are hopeful a similar measure will be enacted in the future. At the bill’s legislative hearing, reformers testified that if a conservative state such as Mississippi could make sweeping reforms work, then certainly moderate Maine could.

Some reformers believe the public can be turned against supermaxes on the basis of their high cost. Faced with ever-rising prison expenditures at a time of depressed tax revenues, officeholders are beginning to question draconian sentencing laws and to see probation and parole as attractive alternatives. In Missouri a sentencing commission has begun telling judges, before they sentence prisoners, about the extravagant price of incarceration as compared to measures such as probation. And social scientists are increasingly producing evidence showing that investment in prisoner rehabilitation lowers recidivism and would save taxpayers money in the long run. Currently, two-thirds of ex-convicts return to prison within three years.