Early this week, a brief Op Ed was published in The Hill related to solitary confinement by co-authors Collette Peters, Director of the Federal Bureau of Prisons and Nancy Levigne, Director of the National Institute of Justice. https://thehill.com/opinion/congress-blog/4175480-promoting-safer-and-more-humane-environments-the-imperative-of-studying-restrictive-housing-in-corrections/
While I applaud their efforts and intention, the article is one of many in a long line of platitudes that focus on inhumane restrictive housing unit practices. These editorials have a minimal impact in changing our archaic prison system and do little more than appease beltway academics and advocates with rhetoric while reminding the world of our failure to adhere to the United Nations Standard Minimum Rules for the Treatment of Prisoners referred to the Mandella Rules. The United Nations Standard Minimum Rules for the Treatment of Prisoners (unodc.org)
The article caused me to reflect on the various congressional hearings, initiatives and reports on the issue such as– REASSESSING SOLITARY CONFINEMENT: THE HUMAN RIGHTS, FISCAL, AND PUBLIC SAFETY CONSEQUENCES (govinfo.gov) and more notable, the million-dollar study awarded to the CNA (Center for Naval Analyses) CNA SHU Report Final 12.30.14.pdf (bop.gov) .
I was fortunate to attend the first meeting with CAN contractors along with Charley Sullivan of CURE and James Ridgeway of Solitary Watch. At the meeting, I was perplexed and disappointed by how little the team that was assembled knew about federal prison policy and culture. The assembly of PhD’s and retired wardens was impressive on paper but brought little to the table from a realistic, working field perspective. I visited a special housing unit on a weekly basis for decades and I can say with confidence that there are ways to effectuate immediate change within the existing policy framework. Million-dollar studies, Op Eds and think tanks obviously are not the answer or the problems related to BOP restrictive housing would have been resolved during the tenure of Charles Samuels.
It is the lack of direct and meaningful involvement in these studies by incarcerated people and professionals with experience working at ground zero that has always been the greatest impediment to reform. Administrators and academics should be aware that the abuse of restrictive housing unit practices are not as much about the methodology than to the adherence to already sound correctional policy. The main problem is the lack of agency accountability and transparency that must first be addressed. Visiting European countries and statistics for unrealistic fashionable programs are simply not the solution to the core problems of restrictive housing.
While it’s profitable and opportunistic to keep recreating the wheel, it’s time ego stroking and rhetoric is replaced with true systemic change by simply adhering to and broadening existing policy and that is true leadership. Fundamental change in our archaic isolation practices will never evolve until the agency culture changes with the leadership restoring some accountability and adherence to policy compliance, along with the oversight of an independent outside entity and/or neutral ombudsman.
I’ll end this article with what I submitted to the NIC nearly ten years ago which supports the concept that it’s more of an accountability issue than recreating the wheel. It should also be noted that back at the time of the study, the facilities were given internal guidance to review their SHU population add take action before the study even began so what the NIC report reflects is more of a purified SHU population not based on the realities at the time.
“Below are some general thoughts and issues regarding the BOP’s utilization of what Director Samuels now refers to as “Restrictive Housing Units.” That term is not a policy term but I noticed he used it frequently during recent testimony in front of the Judiciary.
I later checked and was told there is a “new policy” forthcoming but the Wardens have been issued internal guidance which I do not believe is in the public domain. Many times, policy guidance is done with internal memoranda issued to “All Wardens” from the Director. It would demonstrate transparency if the BOP notified the auditors for the NIC study there is new direction regarding the issues they will be studying.
I have many personal experiences with special housing units having visited them weekly for 23 years while working for the BOP. I have strong opinions on these issues and believe changes are needed in the way in which we isolate our prisoners. I have also visited SHU’s throughout the Northeast Region while conducting facility audits with the program review division so my experiences are relative to many facilities.
This feedback is not relative to pure “Solitary” confinement as the BOP does not practice widespread single cell isolation in regular secure facilities aside from the small ADX Unit in Florence, Colorado. With the development and evolution of the Special Management Units (SMU’s) isolation has increased, however, it is not a significant percentage of the entire BOP population. The below information is focused on the overuse and abuse of offenders placement in the BOP’s Special Housing Units (SHU’s) and Special Management Units (SMU’S).
There are at least 4 BOP policies directly governing “restrictive housing”:
- PS 5217.01, Special Management Units
- PS 5270.10, Special Housing Units
- PS 5270.09, Inmate Discipline
- PS 5212.07, Control Unit Programs
# 2 & 3 were previously combined in one policy and were split a few years ago. Special Management units are basically Special Housing Units under a different name. There is a 4-phase step down type program but they all start in Phase I which is 23 hr. lockdown and far less privileges and programs than general population inmates. The SMU policy is like the Control Unit policy but there appears to be more safeguards involved with placing inmates in a Control Unit such as a Psychological evaluation prior to approval. It is my understanding there is only one Control Unit in the country ADX Florence which houses just over 50 inmates. Ironically, that is the only system wide, routine use of solitary confinement and apparently off limits for this study. It is also my understanding that the SMU in Lewisburg, PA is a Phase I & II SMU, while there are Phase III & IV SMU’s at the Allenwood Complex and Florence. Lewisburg and Allenwood are in proximity, less than one hr. apart, so I recommend the Allenwood SHU operations should be reviewed as there are multiple SHU’s at the Allenwood complex. Within 2 hours of these facilities, USP Canaan would also be a practical review site because of the recent staff death, inmate homicide plus it has a reputation for the liberal use of pepper spray within the SHU.
As far as data points, there are so many but I will try and focus on what are the “big ticket” items. It is clear the BOP has adequate policy in place to operate the various restrictive unit settings; however, following the policy is what is problematic. One thing which should be known is that in advance of this review, the Director contacted the Wardens throughout the country and had them review the restrictive housing populations. They spent weeks processing transfers and moving inmates so what the review team will see is a relatively clean population.
A telling sample would be to conduct interviews with inmates who were placed in the general population within the past 4 months with the SENTRY CMA Assignment of SMU Completed. It would be equally productive to interview inmates with the assignment SMU Failed as there should be many in the SHU’s of Allenwood, Lewisburg and possibly Canaan.
To get a good understanding of the average isolation of an inmate, there should be a random sample of SMU and SHU inmates with various SENTRY transactions for review. For instance, a PP37 transaction is for the history of any category. If you place “QTR” at the end of the transaction: i.e.: PP37, BOP#,QTR you will get every living quarters during the entire period of incarceration. This will show you when an individual went form Administrative Detention (AD) to Disciplinary Segregation (DS), back to Administrative Detention, etc. I am sure you will find inmates living in isolation for years.
Entire rosters of a SMU, SHU, etc. for an institution or even the country can be processed with multiple categories and conditions. For instance, you can start with a nationwide sample of all SMU cases but qualify it to only include Care Level 3, mentally ill inmates. Every roster has about 5 columns and there are multiple conditions which can be applied. Another example would be you could run a roster of all inmates currently in Phase I, SMU who are scheduled to be released in the next 6 months to determine what type of release preparation has been done or what public safety issues are involved. There is so much you can do to manipulate the database if they really want to complete a thorough review.
Every inmate interviewed or sampled should have a PP37, history of quarters, a PD15, Disciplinary Chronological history, PP44, Overall profile, PEED, education transcript, PR transactions which should the administrative remedy processing, PPG7 (Classification data known as a BP-338) and many more.
A telling sample would be to obtain a roster of “Unverified PC” cases. You will see that these cases must be housed in SHU for over a year for them even to be referred for transfer. This is very problematic and a widespread practice that does not conform to national policy or law.
Another Sentry focus would be to obtain a roster of the “Transitional Seg” cases throughout the country. When inmates are moved from their parent facility, they are sometimes housed at a different facility SHU but tracked in sentry. These inmates do not transfer with their central files and often fall through the cracks so to speak. The staff at the facility where they are temporarily housed have full caseloads so their needs often go unmet.
There is what is called a “Weekly SHU review” report. A 6-month sample should be reviewed and compared week to week. There is also a separate correctional services database on BOP WARE called the BOP Ware SHU Application. Some institutions print their weekly reports with this program. It is a national data base and the reviewers should ask for this data in the “Dump” they referred to at our meeting. I am disappointed they did not respond to my statement that they could target/request rosters and will simply rely on a “data dump” of information which they obviously will not understand based upon the team’s extremely limited understanding of the BOP.
The Central files should be reviewed for the various forms associated with restrictive housing unit placement such as BP-292’s Special Housing Unit Records, BP-295 Special Housing Unit Reviews, BP- 308 Administrative Detention orders.
The PDS ( Psychological Data) system should be cross referenced to ensure inmates are getting their psychological evaluations every 30 days as well as determine what other entries are being made by staff. PDS is a separate database maintained by psychology.
After action reports should be reviewed for every inmate suicide which occurred in SHU.
All SENTRY 583’s (report on significant incident) should be reviewed for the particular institution for a given time period. For instance, the use of pepper spray and forced cell moves and 4-point restraint situations should always not only have a 583 but a correlating video to go along. These videos should also be reviewed.
Inmate medical records which are independent of the aforementioned should also be reviewed to determine the extent of individual medical staff coverage and attention during SHU rounds. The BOP will tell you inmates see PA’s every day but many times it is a quick walk by when they are sleeping so issues do not get addressed.
Compliance with CFR 541.45, 541.21, 543 can be determined by reviewing the above documentation and interviews. The policy reads as if there are these extensive hearings and reviews of restrictive placement but the practice is to the contrary.
Next are recommendations to what I believe are needed to restore humanity to the system regarding restrictive housing unit placement. I will list them in what I feel is the order of importance.
Initial SHU Placement: First- and second-line supervisors (mainly GS9 & 11) Lieutenants, have far too much discretion when it comes to placing offenders in the SHU. The general criterion for SHU placement is the inmate is disrupting the “orderly” running of the institution. It is quite common for inmates who commit or are suspected of committing minor infractions of the disciplinary code to be placed in SHU and languish there for weeks sometime months. Without getting into too much detail, there are 4 levels of infractions in the disciplinary code (Greatest, High, Moderate, Low & Moderate). An example is that “Using obscene language” is a low moderate offense, “Lying” is a Moderate offense, Fighting is a High offense and Use of narcotics is greatest. My recommendation is that, ordinarily, offenders should not be placed in the SHU unless they have committed or are suspected of committing a high or greatest severity offense. This alone will drastically reduce the number of inmates placed in SHU’s. I emphasize ordinarily because there are times when placement may be warranted for lesser offenses but it should not be the norm.
This is the actual BOP policy language for placement in the SHU:
“(c) Removal from general population. Your presence in the general population poses a threat to life, property, self, staff, other inmates, the public, or to the security or orderly running of the institution.”
Lastly, BOP policy indicates the 7-day review hearing can be an in-person hearing, yet the BOP does not let inmates know this is an option and research will indicate they do not attend this hearing because they are not informed of such. The first, 7-day review hearing should be an in-person hearing!
Another recommendation is that a staff representative is afforded to inmates involved in the disciplinary process. However, they are not afforded to inmates in SHU for no fault of their own. Inmates can languish in AD for months without staff representation.
I can discuss in detail more issues and the problems with the entire review process, but it would be a bit complicated for this document.
Investigation time frames: Unlike when an incident report is written, there are no mandated time frames on “investigations” or how long it takes the Discipline Hearing Officer (DHO) to conduct a hearing. I will take these two issues one at a time:
Investigations: There is a significant amount of Federal Case Law regarding mandated time frames on incident report processing, Unit Discipline Hearings (UDC), etc., however there is a great need to also mandate time frames on investigations or protective custody (PC). Once someone is placed in the SHU for “investigation” or “PC” they usually languish for months pending the processing of the investigation.
At this point I would like to clarify that when staff observe a violation of the disciplinary code, they have 24 hours to write an incident report. If they do not observe it but hear of it from informants, or via other means of intelligence, they begin an “investigation.” That is where the breakdown occurs. There are no mandated time frames for investigations. It is not uncommon for someone to be placed in SHU and not even be interviewed by the investigators for several weeks and remain there for several months. The BOP should mandate specific time frames regarding the investigation process. I realize there needs to be discretion to deviate from a specific time frame but it must be in rare instances and include written justification and provided to the inmate.
It is also common for investigations regarding drug possession and serious assaults for the BOP to refer charges to Federal Law enforcement (i.e.: FBI). When this happens, all time frames for incident report processing cease. There is no required time frame follow up in BOP policy so the BOP should be mandated to check at least weekly with the referral agency to determine if the charges will be prosecuted. Ordinarily, Federal authorities only have the resources to process the most serious offenses and often choose not to prosecute. It is far too common that months pass before incident reports are released for processing due to inadequate follow up.
DHO Hearings: Like investigations, there is no time frame mandating the Discipline Hearing Officer (DHO) to conduct a hearing when an incident report is referred to them by the Unit Discipline Committee (UDC). What is troubling about that aspect is when the DHO finally imposes punitive Segregation time for a violation of institutional conduct; there is no requirement for credit for time served in the SHU. DHO’s should be mandated to process hearings in a specific time frame and the offender should be credited with the time they spent in the SHU.
BOP policy uses two statuses for placement in the SHU. One is Administrative Detention (AD), the other Disciplinary Segregation (DS). There are reasons other than the violation of policy when someone can be placed in AD. They could be a victim of an assault, requesting protection, in transit and temporarily housed at the facility, etc. The point is they are placed in SHU for reasons other than behavioral violations. The BOP policy on Special Housing Units would lead one to believe these types of offenders have access to programs. They do not! Director Samuels’ testimony in late 2013 suggested inmates in SHU have access to programs. That is simply disingenuous. In addition, SHU inmates are limited to one telephone call every 30 days, the same as if they were serving Disciplinary Segregation for violating the disciplinary code. I realize it is not practical for program participation in most instances, but they should be entitled to a telephone call at least once every 5 days. Communication with family is important, especially given the effects of isolation and the higher rates of suicide attempts in the SHU’s. A telephone call every 30 days should only be implemented while the inmate is serving punitive Disciplinary segregation (DS) time.
Unverified protection cases: This is a big problem. If staff cannot verify an inmate’s request for protective custody, they leave them in SHU without transferring them. It is not unusual for unverified PC cases to be in SHU for over a year! The DSCC (Grand Prairie, TX) tends to deny the few transfers that are submitted so the inmates languish in SHU indefinitely. This is not the intent of policy or law. SHU’s are not designed as long-term units. (no programs, despite what policy may infer).
Special Management Units (SMU’s) These facilities and units are basically large SHU’s and involve the aforementioned circumstances. Research will show you there are far too many inmates right now in post-disciplinary status in SHU’s waiting for SMU placement. This can be tracked in the SENTRY database as can the regular inmates in DS and AD and how long they have been waiting for investigations, etc. I am not sure if this “independent” study has SENTRY access, but I would be able to show you all kinds of tracking with this database.
A list of other issues which should be looked at:
- Use of Special housing unit for Minimum self-surrenders. Sometimes first-time offenders on bond who have never served a day in jail surrender to camps only to be placed in SHU for weeks awaiting bed space. The BOP is capable of coordinating bed availability and/or adding temporary beds outside of SHU.
- Check the policy compliance of “panic” buttons, ventilation and temperature in the older facilities.
- Review the medical care of “Chronic Care” inmates in SHU.
- Inmates currently in SHU for an extended period should be interviewed for feedback on the BOP’s compliance to the current policy requirements. I was extremely disappointed that the auditors were not going to interview inmates or even provide a questionnaire.
- Telephone and visiting is restricted for inmates in AD. They are not allowed weekend visits, which is when most families can travel, plus they are only allowed a call every 30 days. This is even for verified PC cases, who have not violated policy. Combine 23 hr. lockdown with restricted family communication and support and it is simply inhumane.
- There are no programs in SHU. Education or Psychology staff might drop by literature but that is about it.
- Law Library access is often hard to access in the larges SHU operations. It is also hard to file remedies with limited access to property, the law library, paper, etc.
- Inmates should be asked if they are receiving program reviews in SHU and their signatures checked in the central file on the program review forms.
There is a lot more to discuss on this issue, but I will stop here.”
Jack T. Donson, FedCURE, & Out4Good