By Richard Luthmann
The response to my article Cruel But Not Unusual: An Insider’s Look at Sixty Days in the SHU at a Federal Bureau of Prisons Facility, has been strong. I received several touching private messages, and insightful public comments.
Eliminate the SHU
I will treat some interesting comments in more detailed posts. This first one is about eliminating the SHU:
“The SHU should be eliminated. Sensory deprivation for 23/24 hours is unconscionable. We have psychopaths in power – they are destroying America. All for money.”
The SHU at a Federal Bureau of Prisons facility. If you are assigned there, you will spend 23-24 hours every day, but not with the door open. There is no entertainment, no work, little room to exercise and utter boredom.
I think the commentator is right. Sensory deprivation is unconscionable. The SHU is a terrible place. It’s institutionalized torture, and no one should experience it. The problem is that the U.S. Supreme Court says it is constitutional.
Unconscionable, Not Unconstitutional
In the 1991 case of Wilson v. Seiter, the late Justice Antonin Scalia wrote an opinion for the Court that held: “A prisoner claiming that conditions of confinement constitute cruel and unusual punishment in violation of the Federal Constitution’s Eighth Amendment must show deliberate indifference on the part of prison officials.”
The late U.S. Supreme Court Justice Antonin Scalia was known for his scathing dissents. In Wilson v. Seiter, he was in the majority and wrote the Opinion of the Court.
The standard of fault is extraordinarily high and protects the BOP and its personnel. To find a prison official violated the Eighth Amendment through “deliberate indifference,” the BOP actor must know they are creating a substantial risk of bodily harm.
Actual knowledge is tough to prove, even where an inmate’s corpse is lying in the cell.
For example. A prison guard could put an inmate into a cell with a tiger. But if the guard did not know that a tiger was in the cell and the inmate got eaten, then the guard wasn’t at fault under deliberate indifference.
Sounds crazy, right? But that is the law.
Tiger Tiger Burning Bright
There are a few things BOP Officials cannot do concerning SHU conditions. They cannot physically beat up the SHU prisoners (or any other inmates). They cannot deny them heat, water, food, medicine, or showers and exercise, which must be provided every so often. But aside from that, just about everything a correctional officer may do is protected. Nearly any action by BOP personnel is easily justified by “the safety and security of the institution” standards.
Prisoner Health and Safety Not an Overriding Concern
You would think that prisoner health and safety are essential values. But prisoner health and safety are a small part of the factors to be considered by BOP Administrators.
Title 28, Section 552.20 of the Code of Federal Regulations is a good example. This section authorizes BOP personnel to apply force to gain control of an inmate to protect and ensure the safety of inmates, staff, and others, to prevent serious property damage, and to ensure institution security and good order.
Under this language, there is practically nothing that the BOP and the prison cannot justify “to ensure institution security and good order.”
Are the fluorescent lights on in the cell 24/7, and the prisoner cannot sleep?
Too bad, the guard needs to see what’s going on in there. The prisoner is denied human contact for long periods. Too bad, that serves a valid penological purpose and keeps the institution running in good order. Short of a prisoner who dies at the hands of a guard who doesn’t give a shit that they are dying, the BOP and its personnel are protected. Even torture that does not result in death.
If you think that the SHU will change any time soon, you are sorely mistaken. You are better off taking your chances with the tiger.
Money in Prison Politics
The commentator thinks we have greedy people in charge. It’s true.
Greedy people on both sides of K Street in Washington make the rules.
An urban legend when I was away was that “George Bush” owned all of the prison commissaries. I doubt that is the case (you never know), but I understand inmate frustration and the desire to blame “The Man.”
I guess “George Bush” is just as good as anyone to point to as a prisoners’ scapegoat for their sorry lot of high-priced low-quality sundries available in the compound canteen.
Speaking of greed, the other side of the equation is the “for-profit” private prisons.
There is recent news on this front. Thanks to the implementation of a Presidential Executive Order, the last BOP Prisoners have left private prisons. Some would tell you that this is excellent news. “BOP inmates shouldn’t be exploited for money,” they say.
Business is Booming in Private Prisons
They fail to tell you that for-profit private prison immigration detention centers, business is booming. They aren’t BOP institutions.
Large companies contract directly with DHS. Check out Moshannon Valley, for example. They are run by global private prison powerhouse The Geo Group, Inc. There are no plans to close that contracted ICE facility down. And why would they? Neither the detainees nor their families vote in U.S. elections.
The private prison companies give money to Washington politicians on both sides of the aisle. These politicians can tout the benefits of the “economic activity” a private facility delivers to their states and districts.
The Biden administration canceled private prison behemoth the Geo Group, Inc.’s BOP contracts. But they are doing well with private prison contracts for DHS and ICE.
Sometimes private prisons can be good if done right.
For example, these prisons are “pay to play,” which means they more quickly adapt and incorporate new, helpful, and profitable technologies. These facilities already have tablets that prisoners can use to watch movies and FaceTime family members – all for a fee.
Many states, including California, have also implemented tablet programs. If you have the money, you can live better. This is how it is all around the world. The US BOP is the exception.
They treat everyone equally bad.
Inmate Tablets – Powerful Tool or Prison Racket?
If you’re broke – like most prisoners are – private prisons put an enormous tax on the inmates’ families. Some have alleged prison tablets are a “predatory scheme.”
Others say it’s good business, if you can buy enough political clout to get the contracts.
Can Technology Keep Prisoners Connected with Family?
There is a significant disconnect here.
Related to the original SHU article, most prisoners caught with cell phones have them because they want to be able to communicate with their spouses, kids, or other family members.
But the 100 Level charge makes it less of a punishment to square up and swing at a guard than it does to get caught with a cell phone.
So, the BOP presents yet another Faustian choice: have limited contact with your family, particularly with small children who may be in their formative years, or risk having a cell phone so you can be part of their lives.
Suppose you want to address generational criminality, race, and children of prisoners. Can the Government be surprised with poor outcomes for prisoners and children and families of prisoners when the BOP’s and the DOJ’s policies exacerbate the destruction of any semblance of family life?
Many inmates resort to illegal cell phones to stay connected to family. Will tablets serve as a legitimate and affordable alternative?
The word is that the BOP is finally looking to roll out tablets in some of its facilities. With so many great options, I wonder what they will choose.
You guessed it. Keefe Company sells the BOP instant coffee, sneakers, and powdered refried beans.
Can Things Change?
Over time, specific BOP policies can be costly to society. By the time the children of prisoners grow up and end up in the same system as their parents, BOP employees will have received paychecks for many years. The old guard will be out on retirement pension, and their children will have taken their place at the prison.
Here is a great economic model. Say Jack goes to prison for 20 years, and Bill, the guard, works at the prison, and watches Jack.
Bill wants his son to follow in his footsteps, so he gets Bill, Jr. a job at the prison, and Bill Sr, retires after 20 years and gets his pension.
Meanwhile, prisoner Jack does not want his son to follow in his footsteps. Jack serves his time and is released. But Jack Jr. gets into a legal jam and is sentenced to 20 years in prison.
So Bill’s son guards Jack’s son. And the generations continue and preserve their status and endure.
The commentator said the “psychopaths are in power,” and they are “destroying America.”
Maybe they are. Perhaps we should let the tigers in at the national zoo in Washington, D.C., and take our chances as a country.
But let’s see if the tablets work first.
Richard Luthmann is a writer, commentator, satirist, and investigative journalist with degrees from Columbia University and the University of Miami. Once a fixture in New York City and State politics, Luthmann is a recovering attorney who lives in Southwest Florida and a proud member of the National Writers Union.
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