[Ppnews] Federal Appeals Court Considers Tommy Silverstein’s 30 Years in Extreme Solitary Confinement

Political Prisoner News ppnews at freedomarchives.org
Wed Sep 25 14:52:11 EDT 2013

  Federal Appeals Court Considers Tommy Silverstein’s 30 Years in
  Extreme Solitary Confinement

September 25, 2013 By Jean Casella 

Thomas Silverstein has been called “the most dangerous prisoner in 
America,” based on several prison murders that took place 30 years ago. 
He has also been called “America’s most isolated man,” based on the 
conditions in which he has lived during those 30 years–conditions which, 
Silverstein and his lawyers contend, clearly constitute cruel and 
unusual punishment.

Silverstein’s closely watched lawsuit, a groundbreaking Constitutional 
challenge to solitary confinement, had another day in court yesterday as 
attorney Laura Rovner argued his case before a federal appeals court. A 
detailed story on the appeal and its significance appeared in the 
/Colorado Independent/ 
written by longtime solitary watcher 
now /Independent/ editor) Susan Greene.

    By law, you get 15 minutes to argue in the U.S. Tenth Circuit Court
    of Appeals. The rules are the rules.

    Yet that rule comes across as painfully ironic in the case of a man
    who has spent a million times that limit — 15,778,470 minutes and
    counting – in prison isolation. Tommy Silverstein, 61, has lived in
    solitary confinement nearly half his life, and longer than any other
    prisoner held by the federal government.

    Silverstein won’t be allowed to visit Denver’s Byron White
    Courthouse on Tuesday to challenge the U.S. District Court ruling
    that said he has been unharmed by living for 30 years alone in a
    cell that’s smaller than a wheelchair-accessible parking spot or a
    Chevy Suburban. Silverstein says he gets less than a minute per day
    of human contact, mainly in the form of officers passing food trays
    in and out of the slot in his cell door or asking “Rec?” —
    guard-speak for “would you like to go outside?” They mean for an
    hour in an isolated exercise cage known among prisoners as a “dog run.”

    Silverstein is no choir boy. He robbed a bank as a young man. He was
    later convicted of killing two men in prison. And he led the Aryan
    Brotherhood, a national prison gang, through the early 1980s.

    In 1983, he fatally stabbed officer Merle Clutts at the U.S.
    Penitentiary in Marion, Illinois. That killing coincided with
    another murder of a guard by a prisoner that same day at Marion,
    which had replaced Alcatraz as the federal government’s highest
    security prison. Those murders punctuated a rash of prison violence
    that decade and led to a national movement to build supermax prisons
    made up exclusively of solitary confinement cells for prisoners who,
    like Silverstein, were deemed to be the “worst of the worst.” The
    U.S. Bureau of Prisons built its supermax, the United States
    Penitentiary, Administrative Maximum Facility – commonly referred to
    as ADX – in Florence, Colorado. Known as the crown jewel of the
    federal system, ADX is considered the most secure prison on the
    planet. No one has ever escaped.

Greene details the conditions in which Silverstein has lived for the 
last three decades in a series of supermax prisons. Those conditions 
were described by Silverstein himself in a lengthy brief, which we 
reported on here 
<http://solitarywatch.com/2011/05/05/americas-most-isolatd-federal-prisoner-describes-10220-days-in-extreme-solitary-confinement/>. Then 
Greene describes the issues at hand in the federal appeal.

    Two top national prison experts said the conditions Silverstein has
    endured are the most severe they’ve ever encountered.

    “Not only has he been subjected to the most extreme forms of
    isolation I have ever seen — placed in housing units that were
    literally designed to isolate him as completely as possible from
    other human beings — but he also has been confined in these places
    for an extraordinary length of time,” wrote Dr. Craig Haney, a
    psychology professor at the University of California, Santa Cruz,
    who has studied solitary confinement for 30 years.

    Steve Martin, another noted prison expert, wrote: “The level of near
    total isolation from all human contact is unprecedented in my 38
    years experience in corrections, which includes experience with
    numerous death rows and ultra-high security facilities across the U.S.”

    Laura Rovner, director of the student law clinic at the University
    of Denver, is Silverstein’s longtime lawyer who has worked with
    several crews of law students representing him. On Tuesday, she’ll
    challenge a 2011 U.S. District Court decision that upheld the Bureau
    of Prison’s assertions that Silverstein’s decades in solitary
    haven’t deprived him of life’s basic necessities. Judge Philip
    Brimmer sided with the BOP’s lawyers from U.S. Attorney John Walsh’s
    office that the case shouldn’t go to trial.

    Walsh’s office refused comment on the case.

    The question before the three-judge appeals panel Tuesday morning
    will be whether there are factual issues in dispute that would
    warrant a trial. Among those are:

    • The Bureau’s claim that 30 years in isolation haven’t harmed
    Silverstein. Experts who have evaluated him have found extensive
    evidence of depression, cognitive impairment, memory loss,
    hallucinations, severe anxiety disorder, panic attacks that make his
    him breathless and shaky in the company of others, and paranoia that
    leads him to hear voices whispering to him through vents.

    • The Bureau’s assertion that Silverstein is too dangerous to lessen
    the extreme solitary confinement conditions in which he is housed.
    Silverstein’s lawyers challenge this argument based on the two best
    predictors of a prisoner’s future dangerousness. One is age. At 61,
    Silverstein has statistically aged out as posing a risk of violence.
    Another predictor is recent behavior. His prison record has been
    clean for more than two decades.

    Rovner will argue that Silverstein should have his day in court to
    determine whether 30 years in extreme isolation amounts to cruel and
    unusual punishment. Silverstein is not requesting anyone to lift his
    three life sentences. Rather, having spent years studying Buddhism
    in prison, he wants to demonstrate at trial that he has changed. He
    also wants a shot at working his way out of solitary and some day
    dining and playing checkers with other prisoners and hugging his two

    “I am quickly becoming an old man. I spend most of my days
    crocheting items for my family and my legal counsel and working on
    my artwork. It is hard to reconcile the [Bureau's] description of me
    as frightening and scary, when the people who see me here know I am
    a man peering through bifocals trying to count the number of
    stitches to make an afghan,” he wrote. “It’s hard, if not
    impossible, for me to prove what is actually in my mind and what is
    not. All I can do is ask that others look at my current behavior and
    explain that it reflects my intention never to act violently again,
    ever. I know the consequences – both to myself and others – that
    will follow. And, more importantly, I know that this is not who I
    wish to be.”

    For Rovner and the dozens of D.U. law clinic students who over the
    years have revolved on and off of his case, Silverstein is an
    amiable and grateful client who crochets hats, mittens, scarves and
    blankets for them and their relatives. When he has art supplies, he
    uses pastels and paint to make them artwork.

    That said, and despite his public apologies for his crimes, a
    three-time prison killer and former Aryan Brotherhood leader isn’t
    the most sympathetic figure in the growing national movement to end
    long-term solitary confinement. Silverstein’s case pivots not on
    redemption but on what, given all the research on the psychological
    harm of extreme isolation, is deemed to be cruel and unusual
    treatment of prisoners.

    “The 8th Amendment is about what we as a society are willing to
    sanction as punishment. It has built into it this notion of evolving
    standards decency that mark the progress of a maturing society,”
    Rovner said. “The amendment doesn’t just protect people who are
    catatonic or floridly psychotic. It protects people from being
    harmed by the minimal civilized measure of life’s necessities,
    especially for what has been an unthinkable period of time.”

    In 2011, Juan Mendez, the United Nations special rapporteur on
    torture, issued a statement calling for an “absolute prohibition” of
    solitary confinement beyond fifteen days. He has asked, but not been
    allowed to tour ADX. The prison is the subject of a federal class
    action lawsuit about how it treats its mentally ill prisoners, some
    of whom starve themselves, self-mutilate to the point of cutting off
    their testicles or, as was the case with prisoner Robert Knott
    earlier this month, hang themselves with bed sheets.

    Mental health professionals, state legislatures and human rights
    organizations have condemned prolonged isolation, which is defined
    by the American Psychiatric Association as a period greater than
    three to four weeks.

    “Given that four weeks of solitary confinement was described as
    potentially harmful, the 30-year duration in this case compels
    scrutiny. If shorter periods of solitary confinement have resulted
    in psychological distress and symptoms, it is not unreasonable to
    assume that substantially longer durations provide a greater risk of
    serious health consequences,” several national groups and experts
    wrote the court on Silverstein’s behalf.

    A division of the U.S. Justice Department, under the federal Civil
    Rights of Institutionalized Persons Act (CRIPA), has investigated
    and found violations of state prisons for the overuse of solitary
    confinement. Perhaps the greatest irony about Silverstein’s case is
    that solitary confinement as practiced by the Bureau of Prisons,
    also an arm of the Justice Department, is exempt from that civil
    rights division’s review.

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