By Richard Luthmann
Keith Raniere remains in the SHU (Special Housing Unit) at USP-Tucson, a high-security federal penitentiary. He has been in solitary confinement, or close to it, for over 400 consecutive days and over 500 days since his transfer to the facility on January 21, 2021. But the Vanguard probably won’t find legal relief soon, thanks to a recent decision by the US Supreme Court.
SCOTUS Declines to Hear SHU “Torture” Case
Deciding not to wade into the waters of whether extended and harsh solitary confinement is a constitutional violation, the Supreme Court of the United States (SCOTUS) denied a petition for a writ of certiorari submitted by Michael Johnson, a former Illinois inmate who endured solitary confinement and near-total lack of exercise for three years.
The High Court’s three liberal justices stood firmly against the court’s decision. Four justices are needed to take up an appeal. But none of the court’s six conservatives saw fit to join the liberals in hearing Johnson’s case, challenging a lower court’s dismissal of his 2016 civil rights suit. Johnson claimed his Eighth Amendment rights against cruel and unusual punishment were a constitutional transgression.
Johnson was imprisoned for a home invasion and later for assaulting an officer. Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, penned an eight-page dissent. They argued that the lower court misjudged the Eighth Amendment’s application to Johnson’s case.
Jackson called Johnson’s solitary confinement “unusually severe.” He was denied exercise for nearly all his three-and-a-half-year term at Pontiac Correctional Center, an Illinois state facility. His cell, too cramped for physical activity, left him confined without a chance to stretch or breathe fresh air.
Illinois Attorney General Kwame Raoul, a Democrat, urged the court to dismiss the appeal.
Now 42 and on parole, Johnson’s history of mental illness includes depression, bipolar disorder, and suicide attempts. His three and a half years at Pontiac were marked by 46 rule violations over 30 incidents, leading to “yard restrictions” — one hour of outdoor access per month. Often, Johnson claimed, even this hour was denied.
Johnson’s lawsuit detailed the toll on his health: muscle atrophy, mental breakdowns, hallucinations, self-harm, and repeated suicide watches. He sought damages, medical care, and more, arguing the Eighth Amendment’s breach by the prolonged exercise denial. A federal judge dismissed his claims, stating that no adverse health effects were proven. The Chicago-based 7th U.S. Circuit Court of Appeals agreed in 2022, ruling that yard time denial as punishment was lawful and “not trivial.”
Justice Jackson criticized the 7th Circuit’s reasoning, asserting they should’ve focused on whether the prison staff showed “deliberate indifference” to Johnson’s health or safety. She believed there was ample evidence for a jury to find the three-year deprivation of yard time resulted from such indifference.
While Johnson’s lawyers praised the liberal justices’ dissent, there is little more legally that can be done for Johnson now that SCOTUS, the appellate court of last resort, has declined to hear his case.
In light of the decision, the Vanguard might find himself similarly powerless.
Raniere’s Conditions of Confinement Have Been Cruel
The conditions in the SHU are truly barbarous, with shit-stained walls, no natural light, inedible food, no access to prison recreation or programming, no fresh air, an open toilet inches away from his bed, cruel prison guards, indifferent prison administrators, and tormenting solitude. When he does get company, it is often a confused, violent, psychopathic cellmate.
Raniere is not there voluntarily. He wants to get released back onto the prison compound. Cruel conditions aside, his placement in the SHU also affects his access to his attorneys, a constitutional right guaranteed under the Sixth Amendment.
The BOP rules do not allow inmates to remain in the SHU indefinitely unless they consent. Some prisoners, particularly rats and sex offenders, prefer to stay in segregated custody to avoid violently targeting the prison compound. They can remain in the SHU for years.
Raniere has not consented to his stay in the SHU. His continued confinement there for over a year and a half is non-voluntary and violates BOP rules. Many argue it is sadistic torture.
United Nations experts say SHU confinement exceeding 15 consecutive days is torture. The United States is a signatory to the United Nations Convention Against Torture (UNCAT).
An Uphill Legal Battle
Though previous SCOTUS decisions seem to support Raniere, the High Court’s denial of certiorari on Johnson’s case means that courts are free to apply a more deferential standard and uphold BOP and prison administrators’ decisions so long as they are based upon Raniere’s actions that are “not trivial.”
SCOTUS should have squarely delineated whether extended SHU or solitary confinement constitutes cruel and unusual punishment. Because the High Court passed on the Johnson case, lower courts and BOP administrators now have plenty of “wiggle room” to decide for themselves what is constitutionally permissible.
The Eighth Amendment prohibits punishments involving “unnecessary and wanton infliction of pain.” Estelle v. Gamble, or that are inconsistent with “evolving standards of decency that mark the progress of a maturing society.”
On May 25, 2022, President Biden issued Executive Order 14075, expressing that inmates should be “free from prolonged segregation,” as the use of restrictive housing has surged in recent years. See Executive Order 2-22-118100 (“It is also the policy of my Administration to ensure that conditions of confinement are safe and humane and that those who are incarcerated are not subjected to unnecessary or excessive uses of force, are free from prolonged segregation”).
Last year, BOP Director Colette S. Peters assured Congress she was “looking into” improper use of the SHU and other lingering constitutional and human rights issues and promised openness and straightforward communication with lawmakers. See Statement of Colette S. Peters, Before the Senate Judiciary Committee, “Oversight of the Federal Bureau of Prisons,” September 29, 2022.
But this September, Director Peters faced a barrage of criticism from the Senate Judiciary Committee. Senators expressed frustration over her lack of transparency, hindering their efforts to address longstanding issues within the agency, including SHU confinement. They claim Peters seems to have backtracked on her initial promises when she assumed her position last year.
Peters was further criticized for her inability to answer fundamental questions regarding the agency’s operations. This lack of forthcoming information has exacerbated concerns about the BOP, a vital component of the DOJ.
With over 30,000 employees, 158,000 inmates, and an annual budget of approximately $8 billion, the BOP is the DOJ’s largest law enforcement agency. It has recently come under intense scrutiny from Congress due to a series of crises, including widespread sexual abuse of prisoners by staff, other forms of staff misconduct, prison breaks, high-profile incidents of violence and inmate deaths, and chronic understaffing that has significantly affected the agency’s capacity to respond to emergencies effectively.
By failing to hear Johnson’s case on whether SHU confinement is cruel and unusual, SCOTUS has signaled to lower courts that they may be deferential to the decisions of a troubled federal agency. In every challenged case, the U.S. Attorney, the BOP, and prison officials attempt to justify SHU or solitary confinement based upon “valid penological reasons.” Without clear guidance from above, many lower federal courts will not look past this outer layer of window dressing.
Get Comfortable, Mr. Raniere
In Raniere’s case, the BOP has not offered valid penological reasons for his extended SHU confinement. His conditions are harsher and more onerous than normal prison life in the general population.
But the Vanguard has yet to challenge his confinement conditions under an Eighth Amendment “cruel and unusual” punishment standard. To do so, his lawyers must bring a habeas corpus petition in Arizona Federal Court.
But as we recently saw with Clare Bronfman, a habeas corpus is not a surefire strategy. All the BOP must do to make the petition moot is move the prisoner to another facility under the jurisdiction of a different U.S. federal district court. Bronfman’s habeas corpus petition filed in the District of Connecticut was rendered moot once she was transferred from FCI-Danbury to FDC-Philadelphia.
Raniere is no longer a young man, and BOP transfers are not savory. A district court judge has questionable authority to preliminarily enjoin the internal administrative activities of an executive branch agency without a clear showing because of the legal concepts of separation of powers and co-equal branches. An injunction to keep Raniere in USP-Tucson while a cruel and unusual punishment petition is heard only has a marginal chance at success.
And legal action may always backfire, subjecting Raniere to BOP retaliation, including the dreaded “diesel therapy,” prison slang for a form of permissible “punishment” in which prisoners are shackled and transported for weeks or sometimes months between any number of facilities until they reach a final destination.
The best advice for the Vanguard is to “get comfortable,” or as comfortable as possible in the SHU. Keith Raniere’s not going anywhere, not anytime soon.
Richard Luthmann is a writer, editor, and investigative journalist.