Secret Experimental Prisons Subject Inmates to Drastic Isolation
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The brief reasons given for transferring these prisoners into CMUs varied, but in several cases their designation was based on conduct that had already been successfully managed at other institutions without restricting communications or family visits. The reasons were often vague: for example, that inmates had engaged in conduct while incarcerated to “recruit and radicalize” other inmates. When pressed for specific evidence about such allegations in interviews and FOIA requests, the BOP declined to provide additional information.
On March 30, 2010, CCR filed a lawsuit against the government on behalf of several CMU inmates and their families, including Jenny and Daniel. In Aref v. Holder, CCR charges that the government not only violated the APA in establishing the CMUs but also violated the First, Fifth and Eighth Amendments. CCR alleges that designation to the CMUs was discriminatory, retaliatory and/or punitive in nature and not rationally related to any legitimate penological purpose or based on substantiated information. Rather, CCR contends that the inmates’ designation was based on their religion and/or perceived political beliefs. Moreover, since there had been no real notice, hearing and appeal, CCR alleges due process violations as well. The extreme nature of the restrictions also raises the issue of cruel and unusual punishment. CCR also argues that the communications restrictions impeded the free speech and association rights of the family members.
Eight days after CCR filed suit, the BOP suddenly gave notice of a proposed rule titled “Communication Management Units.” In it the Obama administration kept the Bush-era communication restrictions while broadening their scope. While the 2006 proposed rule was limited to people with “an identifiable link to terrorist-related activity,” the Obama-era rule can be applied to “any inmate,” including “persons held as witnesses, detainees or otherwise.”
The ACLU’s Shapiro says, “When Obama came into office, we hoped that the use of CMUs would be revisited, and we recommended that BOP withdraw the first rule-making.” But it is unclear if any such review took place. The BOP declined to say if the Obama administration had conducted a review before deciding to maintain the CMUs, or even if it had reviewed the assignment of current inmates.
Starting his presidency with two CMUs established by the Bush administration outside the APA process, Obama, says Luneburg, essentially had two choices. “He could totally abandon it or try to make lawful what was perhaps arguably an unlawful situation.” Taking the latter approach, the BOP accepted comments about the new rule until June 7, 2010. It recently announced it would publish the finalized rule in October—sixteen months after the close of the comment period. According to Luneburg, that delay is surprising, given that the rule consists largely of legal issues, as opposed to complex scientific claims that underlie rules published by agencies like the EPA.
During the comments phase, submissions poured in from civil rights groups, current and former CMU inmates, inmates’ families and mental health professionals. One theme was common to many: the communications restrictions (including the inability to touch) were devastating to family integrity. The writers argued that strong connections to family were essential for a variety of reasons, such as mental health, rehabilitation, prison order and safety, staying recidivism and societal reintegration—truths long recognized by psychologists, corrections professionals and the BOP alike.
As University of Delaware professor of sociology and criminal justice Christy Visher explains, “The lack of connection to family makes it harder to think of a plan for post-release, and if they have no hope for life after release, then they’re less likely to be making behavior change.” Visher, who has looked at the question of how best to reintegrate released convicts for the National Institute of Justice, says, “Contact visits where you can hold a child on your lap or touch your wife are very important.”