by David C. Fathi1

The prison industry, like any other, has its fashions. And in the 1990s, "supermax" prisons were a raging fad. According to Chase Riveland, former secretary of corrections in Washington and Colorado, [t]hey have become political symbols of how "tough" a jurisdiction has become. In some places, the motivation to build a supermax has come not from corrections officials, but from the legislature and, in at least one instance, the governor.2

By one count, more than thirty states, as well as the federal Bureau of Prisons, were operating a supermax facility or unit by 1999.3 Not all jurisdictions use the "supermax" terminology; terms such as "secured housing unit" (?SHU?), "special management unit," "intensive management unit," and "control unit" are also used to designate these facilities.
What exactly is a supermax prison? There is no single definition, and one supermax may differ from another in physical configuration or operational details. But the essence of supermax confinement is extreme social isolation, enforced idleness, and deprivation of virtually all meaningful environmental stimulation. Riveland sums up supermax confinement as "locking an inmate in an isolated cell for an average of twenty-three hours per day with limited human interaction, little constructive activity, and an environment that assures maximum control over the individual."4

A federal judge described Wisconsin?s supermax prison this way:
"Inmates on Level One at the State of Wisconsin?s Supermax Correctional Institution in Boscobel, Wisconsin spend all but four hours a week confined to a cell. The 'boxcar' style door on the cell is solid except for a shutter and a trap door that opens into the dead space of a vestibule through which a guard may transfer items to the inmate without interacting with him. The cells are illuminated 24 hours a day. Inmates receive no outdoor exercise. Their personal possessions are severely restricted: one religious text, one box of legal materials and 25 personal letters. They are permitted no clocks, radios, watches, cassette players or televisions. The temperature fluctuates wildly, reaching extremely high and low temperatures depending on the season. A video camera rather than a human eye monitors the inmate's movements. Visits other than with lawyers are conducted through video screens."5
American prisons have always had solitary confinement cells where prisoners were sent for violating prison rules. What is new about supermax confinement is the use of isolation as a long-term management strategy rather than short-term punishment for misconduct. Many prisoners spend years and decades in supermax, and prison officials openly state their intention to keep some prisoners in supermax for the duration of their sentences. Moreover, technological advances have made possible a level of social isolation that was simply not possible in an earlier era. For example, in decades past, even prisoners in solitary confinement regularly saw another human being when guards made their rounds. Today, video surveillance technology makes it possible to eliminate even that fleeting human contact.

Who ends up in supermax prisons? Because of the varying definitions of supermax confinement, precise figures are difficult to come by. Human Rights Watch estimated that, as of February 2000, more than 20,000 persons were confined in supermax facilities in the United States.6
The official line is invariably that these facilities are reserved for the "worst of the worst"? those who have maimed or killed other prisoners or staff while incarcerated. However, most states have only a handful of such prisoners. Therefore, if admission were truly restricted to the dangerous and predatory, most supermaxes would stand almost empty. The typical response has been to fill the cells with "nuisance prisoners", those who file lawsuits, violate minor prison rules, or otherwise annoy staff, but by no stretch of the imagination require the extremely high security of a supermax facility. Thus, in Wisconsin's supermax, one of the "worst of the worst" was a sixteen year old car thief. Twenty-year-old David Tracy hanged himself in a Virginia supermax; he had been sent there at age 19, with a 2 ½ year sentence for selling drugs. In a lawsuit challenging the Ohio State Penitentiary, a federal judge expressed skepticism about the state's need for a 504-bed supermax facility: ?After the huge investment in the OSP, Ohio risks having a "because we have built it, they will come" mind set. As a result, the defendants consider inmates for placement at the OSP who do not need its level of restrictions.7

One group that is vastly overrepresented in supermax prisons is the mentally ill. Most experts estimate that approximately 10 to 20 percent of all prisoners in state and federal prisons suffer from a mental illness.8 In supermax facilities, however, the number is far higher. For example, in Indiana's supermax -- the Secured Housing Unit (SHU) at the Wabash Valley Correctional Facility -- prison officials admit that "well over half" of the prisoners are mentally ill.9 Indeed, a 1997 inspection of the prison by psychiatrists affiliated with Human Rights Watch found numerous prisoners who were actively psychotic, hallucinating, and delusional. One prisoner was described by the interviewing psychiatrist as follows:

"Prisoner Cooper is so severely mentally retarded that it was difficult to complete a psychiatric interview with him. His facial features are dysmorphic, and he appears to be microcephalic (these are related to a chromosomal or congenital condition which also causes his mental retardation), so that even without testing any physician would recognize that he is mentally retarded. In addition, his speech is dysarthric and severely impoverished. He cannot possibly understand fully the consequences of his actions and the rules that he is expected to follow in prison."10

The psychiatrist added, "I believe I terminated the interview early because I was very uncomfortable with my own sense of horror and outrage that this inmate would be in the SHU."11

The staggering number of mentally ill persons in supermax facilities results from a confluence of factors. In the latter half of the twentieth century, the deinstitutionalization movement resulted in the closure of large public mental hospitals, many of which had warehoused the mentally ill in appalling conditions. The goal was to house persons with mental illness in less restrictive environments, with treatment provided in a community setting. The first half of this plan was a great success; between 1955 and 1998, the per capita number of persons housed in mental hospitals plummeted by more than ninety percent. However, once the hospitals were closed, funding for community housing, treatment, and other support services largely failed to materialize. Left to fend for themselves, often unable to obtain the medication they needed to control their symptoms and behave in a socially acceptable manner, many mentally ill persons became caught up in the criminal justice system.

Then, beginning in the late 1970s, the criminal law in the United States became markedly more punitive. Mandatory minimum sentencing and "three strikes" laws reduced judicial discretion and resulted in longer sentences across the board. The prison population soared, eventually giving the United States the highest per capita incarceration rate in the world. At the same time, many states restricted, and in some cases abolished, the defenses of insanity and diminished capacity; as a result, many persons who would previously have been found not guilty, or simply not prosecuted at all, were instead convicted and incarcerated. By the dawn of the twenty-first century, prisons had become the asylum of last resort.12 And, as we shall see further in this article, the transfer of many of the most seriously mentally ill from hospitals to prisons has resulted in significant (although probably unanticipated) cost savings.

Persons with mental illness typically have a difficult time coping with the stresses of incarceration. They may be victimized or manipulated by other prisoners. Many have impulse control problems, and thus have difficulty complying with prison rules particularly if, as is often the case, they are not receiving appropriate treatment for their illness. Indeed, they may be punished for the very symptoms of their mental illness, such as self-mutilation or suicidal behavior. For all these reasons, incarcerated mentally ill persons tend to accumulate lengthy disciplinary records and a reputation as troublesome or noncompliant prisoners. In an overcrowded prison system scrambling to fill beds in a new, expensive, and half-empty supermax facility, these prisoners often find themselves transferred to the supermax.

The damaging effects of isolated confinement, even on persons with no history of mental illness, have long been well known. Over a century ago, the United States Supreme Court described the effect of solitary confinement as practiced in the nation?s early days:
"A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were generally not reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community."13
A California prison psychiatrist put it more pithily in a 2002 interview: "It's a standard psychiatric concept, if you put people in isolation, they will go insane. Most people in isolation will fall apart." 14

Once subjected to the extreme social and sensory deprivations of supermax confinement, many mentally ill prisoners deteriorate dramatically. Some engage in bizarre and extreme acts of self-injury and even suicide. In the Wabash Valley SHU, a 21 year old mentally ill prisoner managed to set himself on fire in his cell; he died from his burns. Another man in the same unit choked himself to death with a washcloth.15 It is not unusual to find supermax prisoners who swallow razors and other objects, smash their heads into the wall, compulsively cut their flesh, try to hang themselves, and otherwise attempt to harm or kill themselves.

The mechanism of this catastrophic deterioration was explained by psychiatrist Terry Kupers, one of the leading experts on the mental health effects of isolated confinement, in a report prepared for a lawsuit challenging conditions in Wisconsin?s supermax:
"Human beings require social interaction and productive activities to establish and sustain a sense of identity, self-worth, and well-being, as well as to maintain a grasp on reality. In the absence of social interactions, unrealistic ruminations and beliefs cannot be tested in conversation with others, so they build up inside and are transformed into unfocused and irrational thoughts. Disorganized behaviors emerge. Internal impulses linked with anger, fear and other strong emotions grow to overwhelming proportions."16

On the witness stand, Kupers elaborated:
"There are a lot of reasons why [mentally ill] people break down in isolated confinement. First of all, it's almost total isolation and total inactivity. So what happens is that all of us know who we are and maintain our sanity basically by acting, by doing things, by being productive, by mastering things and by relating to other people. Someone with a mental illness, especially a psychosis, has lots of fantasies. When those fantasies get out of proportion, we call them delusions. The way we check those delusions is to have them in constant social interaction with others so they can say what they're thinking and find out whether they're being crazy or whether that's a realistic perception. When you deprive a person of that kind of feedback on a constant basis and they have a tendency towards psychosis, they will tend to break down."17

The federal court accepted Kupers' conclusions:

"Most inmates have a difficult time handling these conditions of extreme social isolation and sensory deprivation, but for seriously mentally ill inmates, the conditions can be devastating. Lacking physical and social points of reference to ground them in reality, seriously mentally ill inmates run a high risk of breaking down and attempting suicide."18
That mental health professionals believe supermax confinement to be profoundly damaging to persons with mental illness is perhaps to be expected. What is more surprising is that corrections experts agree that the mentally ill do not belong in supermax. Riveland cautions that "[I]nsofar as possible, mentally ill inmates should be excluded from extended control facilities." [M]uch of the regime common to extended control facilities may be unnecessary, and even counterproductive, for this population."19 Similarly, in the lawsuit challenging conditions in Wisconsin's supermax prison, the state?s former Secretary of Corrections testified that '[h]e believes that Supermax cannot provide an adequate placement for mentally ill inmates because it lacks the staffing to care for them and because it has little if any space for programming. He acknowledges that he is not familiar with the staffing ratios at the institution at the present time or with the program offerings but believes that no amount of programming could compensate for the physical isolation imposed on Alpha Unit."20

The Secretary added that building the 500-bed supermax had been the idea of the governor and the legislature, not the state's corrections professionals.

In addition to the shattering effects of isolation, mentally ill prisoners in supermax often suffer violence at the hands of correctional staff. The ideology of supermax is one of total and overwhelming control, and zero tolerance for disobedience. A document given to prisoners arriving at Virginia's Wallens Ridge State Prison stated that: any failure on your part to follow verbal instructions from staff "will be met with the immediate use of firepower." 21 Thus mentally ill prisoners, who may have difficulty controlling their behavior, or whose symptoms may be misinterpreted by untrained staff as willful defiance, are at increased risk of suffering a staff use of force. Sometimes the force is deadly; Lawrence Frazier, a mentally ill prisoner, died in 2000 at Wallens Ridge after being repeatedly shocked by guards with a stun gun.22 And sometimes it crosses the line into frank sadism. Vaughn Dortch, a mentally ill African-American prisoner at California's Pelican Bay State Prison, suffered second- and third-degree burns after being "given a bath" in scalding water by prison staff. As Dortch's skin peeled off, one guard remarked, "looks like we're going to have a white boy before this is through."23

While mentally ill prisoners whose condition is exacerbated by the extraordinary stresses of supermax confinement obviously have serious mental health needs, they typically fail to receive meaningful treatment. This is not entirely unique to supermax facilities; mental health care in many, perhaps most prisons is systemically inadequate. But the extreme security measures in supermax facilities effectively render impossible any form of treatment except medication. Thus, for example, prisoners are considered too dangerous to sit in a room with a mental health clinician, so the clinician talks to them while standing outside their cells, where other prisoners and staff can overhear the conversation. In a particularly bizarre form of "group therapy" practiced at Indiana?s Wabash Valley SHU, prisoners locked in adjoining cells bend down and talk to the therapist through a waist-level slot in the cell's solid metal door.

In a final cruelty, mentally ill prisoners who find themselves in supermax facilities are likely to stay there for a far longer time than those who are not mentally ill. Some supermaxes house prisoners on "disciplinary segregation;" these prisoners have been sentenced by a prison disciplinary officer to a fixed term of segregated confinement after being found guilty of violating prison rules. Others house prisoners on "administrative segregation;" these are prisoners who are sent to segregation indefinitely, with only periodic, pro forma reviews. In either case, the only possible ticket out is sustained good behavior ; which means, at a minimum, compliance with the numerous and often picayune rules that govern every prison. For many persons with mental illness, particularly mental illness aggravated by the extreme stress of supermax confinement, that is simply not possible.

Thus, for example, the Wisconsin supermax operates on a "level" system -- incoming prisoners typically start on Level One, where conditions are the most stark and restrictive; they must "earn" their way Level Five to have any hope of release from the supermax. The federal court found that "[s]eriously mentally ill inmates have difficulty following the rules necessary to advance up the level system and, as a result, find themselves 'stuck' in Levels One, sometimes Two and only rarely three."24 Similarly, mentally ill prisoners in the Wabash Valley SHU continue to accumulate disciplinary time that extends their SHU sentence by years or decades. One mentally ill prisoner has a scheduled SHU release date in the year 2060; another can look forward to release in 2085.

The proliferation of the supermax prison in an era of cost-cutting and fiscal conservatism is a paradox of sorts. After all, these facilities are far more expensive to build and operate than traditional maximum-security prisons. Holding a prisoner at Tamms Correctional Center, Illinois' supermax, costs $161.63 per day, more than three times as much as the maximum security Menard Correctional Center. Similarly, Ohio's supermax costs almost three times as much per capita as Mansfield Correctional Institution, which houses the state's death row.25 Much of this added expense results from far higher staffing costs at a supermax. For example, while even maximum security prisons often allow prisoners to move unescorted from one part of the prison to another, supermax prisoners are typically required to be restrained and escorted by two or more guards any time they leave their cells. And in supermax facilities, routine tasks such as cleaning and food service, which in most prisons are performed by prisoners for little or no compensation, must be performed by paid staff, because the prisoners are considered too dangerous to be given access to kitchen utensils and cleaning supplies. Some states deal with this by bringing in low security prisoners from nearby prisons to perform the menial labor tasks at the supermax prisons.

There is little doubt that the supermax prison represents the triumph of get-tough ideology over rational economic decision-making. But the economic picture is more complicated when it comes to prisoners with mental illness. While it is more expensive to house a mentally ill prisoner (or any prisoner, for that matter) in a supermax than in a traditional maximum-security prison, it is far less expensive than housing that person in a dedicated mental health treatment facility, even a mental health facility operated by the prison system itself. Thus, for example, the per capita daily cost at Wisconsin's supermax prison is $95.00; at the Wisconsin Resource Center, a mental health facility operated by the Department of Corrections, it is $250.00.26 The cost of housing a mentally ill person in a state psychiatric facility is even higher, averaging $363 per day nationwide, and exceeding $500 per day in some states.27 This cost differential clearly does not explain a given state's decision to build a supermax prison. But it may provide a clue why so many obviously and desperately mentally ill persons are left to languish in these facilities, rather than being transferred to more appropriate facilities where they could receive treatment.

The extraordinary deprivations of supermax confinement predictably led to lawsuits in which the prisoner-plaintiffs alleged that confinement in these facilities constituted cruel and unusual punishment, prohibited by the Eighth Amendment to the United States Constitution. These across-the-board challenges have been largely unsuccessful. For example, in Madrid v. Gomez, a challenge to conditions in the notorious SHU at California's Pelican Bay State Prison, the court concluded that:
"while the conditions in the SHU may press the outer bounds of what most humans can psychologically tolerate, the record does not satisfactorily demonstrate that there is a sufficiently high risk to all inmates of incurring a serious mental illness from exposure to conditions in the SHU to find that the conditions constitute a per se deprivation of a basic necessity of life."28

By contrast, the same judge had no difficulty concluding that placement of mentally ill prisoners in the SHU violated the Constitution: "For these inmates, placing them in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe."29 Similarly, in the Wisconsin litigation, the court granted a preliminary injunction ordering that seven identified seriously mentally ill prisoners be removed from the supermax; the court also ordered that high-risk populations at the prison be evaluated by independent clinicians for serious mental illness, and those found to be seriously mentally ill not be housed at the supermax.30 Indeed, every federal court to consider the question has held that "supermax" confinement of the seriously mentally ill is unconstitutional. In addition, legal challenges to supermax facilities in Ohio, New Mexico, Indiana and Connecticut have resulted in settlement agreements in which prison officials agree to exclude prisoners with serious mental illness from supermax facilities.31

There are unmistakable signs that the bloom is off the supermax experiment. Few states have opened supermax facilities in recent years; indeed, Virginia and Michigan have converted their supermax prisons to regular maximum security facilities. Maryland has announced plans to demolish its supermax after less than fifteen years of operation. As states face record budget deficits, supermax facilities, which are far more expensive to build and operate than conventional prisons, seem to have lost much of their appeal. At the same time, there are sporadic efforts to mitigate some of the most oppressive features of supermax confinement. In one Washington state control unit, physical renovations, increased staff interaction with prisoners, and introduction of some congregate activities were followed by dramatically decreased violence and use of force.32

But despite these hopeful signs, thousands of mentally ill prisoners remain entombed in supermax facilities untouched by even these minor reforms, often with devastating effects on their mental health. For these prisoners, litigation may be their only hope of deliverance. Most recently, a lawsuit filed in February 2005 alleged that confinement of mentally ill prisoners at Indiana's Wabash Valley SHU violates the Constitution's ban on cruel and unusual punishment.33 Two months before the case was to go to trial, Indiana's Commissioner of Correction announced that the state would remove all mentally ill prisoners from the SHU -- a small but significant step toward abolition of the supermax prison as the high-tech asylum of the twenty-first century.34 [Editor's note: that case later settled with the Indiana DOC agreeing not to house the mentally ill in super max.]

Footnotes
1 David C. Fathi is senior staff counsel at the ACLU National Prison Project in Washington, DC, which brings lawsuits challenging conditions in prisons and jails throughout the United States. He is counsel for the prisoners in the Wisconsin and Indiana lawsuits discussed in this article.
2 Chase Riveland, U.S. Dept. of Justice, Supermax Prisons: Overview and General Considerations 5 (1999).
3 Riveland at 1.
4 Riveland at 2.
5 Jones' El v. Berge, 164 F.Supp.2d 1096, 1098 (W.D. Wis. 2001).
6 Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (New York: Human Rights Watch, 2003), at 146 (citing Human Rights Watch, Out of Sight: Super-Maximum Security Confinement in the United States (New York: Human Rights Watch, 2000), at 3).
7Austin v. Wilkinson, 189 F.Supp.2d 719, 724 (N.D.Ohio 2002); see also Jerry R. DeMaio, If You Build It, They Will Come: The Threat of Overclassification in Wisconsin's Supermax Prison, 2001 Wisc. L. Rev. 207.
8 Kupers, Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It 11 (1999).
9Howard Greninger, Suit targets Carlisle Prison, Terre Haute Tribune-Star, Feb. 4, 2005, www.tribstar.com/articles/2005/02/04/news/top_stories/top01.txt (visited Feb. 7, 2005).
10 Human Rights Watch. Cold Storage: Super-maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997), at 38.
11 Id. at 38 n. 62.
12 Kupers, Prison Madness, at 12-15; Ill-Equipped, at 19-24; Lorna A. Rhodes, Total Confinement: Madness and Reason in the Maximum Security Prison (2004), at 102.
13 In re Medley, 134 U.S. 160, 168 (1890).
14 Ill-Equipped at 149 n. 513.
15 Karin Grunden, Man found hanging in cell at Wabash Valley Correctional Facility, Terre Haute Tribune-Star, Oct. 1, 2003, www.tribstar.com/articles/2003/10/01/news/export38458.txt (visited March 18, 2005).
16 Terry A. Kupers, M.D., Report on Mental Health Issues at Supermax Correctional Institution in Boscobel, Wisconsin, October 22, 2001 (expert report in Jones?El v. Berge, No. 00-C-421-C [W.D. Wis.]), at 1-2.
17 Testimony of Terry A. Kupers, M.D., in Jones?El v. Berge, No. 00-C-421-C (W.D. Wis.), Sept. 20, 2001 (quoted in Ill-Equipped, at 152-53).
18 Jones' El, 164 F.Supp.2d at 1098.
19 Riveland at 12.
20 Jones' El v. Berge, 164 F.Supp.2d 1096, 1102 (W.D. Wis. 2001) (citing testimony of Michael Sullivan).
21 Craig Timberg, Documents Show Use of Force at Va. Prison, Washington Post, July 31, 2001, p. B1.
22 Timberg, at B1.
23 Madrid v. Gomez, 889 F. Supp. 1146, 1166-67 (N.D. Cal. 1995).
24 Jones' El, 164 F.Supp.2d at 1101.
25 American Correctional Association, 2004 Directory (65th Ed. 2004), at 286, 288, 568, 570.
26 Id. at 793.
27 Table 20, SMHA Health Controlled Expenditures Per Inpatient Day, All Forensic Patients in State Psychiatric Hospitals Receiving Mental Health Services by State, FY 2003: National Association of State Mental Health Program Directors Research Institute.
28 Madrid v. Gomez, 889 F. Supp. 1146, 1267 (N.D. Cal. 1995).
29 Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995).
30 Jones' El, 164 F.Supp.2d at 1125-26.
31 For a more detailed account of these lawsuits and the resulting court orders and settlement agreements, see Fathi, The Common Law of Supermax Litigation, 24 Pace L. Rev. 675 (2004), and Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (New York: Human Rights Watch, 2003), at 145-168.
32 Rhodes, at 192-193.
33 See Greninger, supra n. 9.
34 Associated Press, DOC moving mentally ill from ?supermax,? Indianapolis Star, June 1, 2006, www.indystar.com/apps/pbcs.dll/article?AID=/20060601/LOCAL/60601030/-1/RSS (visited June 4, 2006); Brendan O?Shaughnessy, Cells will open for isolated inmates, Indianapolis Star, June 2, 2006, www.indystar.com/apps/pbcs.dll/article?AID=/20060602/NEWS01/606020511 (visited June 4, 2006).

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