By Michael E. Deutsch and Jan Susler [The authors, lawyers with the People’s Law Office in Chicago, have a long history of work on behalf of prisoner rights and political prisoners]


In 1969 there were less than 300,000 people in federal and state prisons and county jails in the U.S.---about 160 people for each 100,000 of population. Thirty-five years later there are over 2,000,000 people incarcerated in American prisons and jails, 100,000 children in juvenile jails and another 4,000,000 under parole or probation supervision, increasing the ratio to about 645 people per 100,000. The draconian laws and policies which brought about this huge increase in the numbers of people under the thumb of the criminal justice system have specifically targeted people of color.
African-Americans, who are 13% of the population as a whole now make up more than 50% of the prison population, up from 30%; Latino prisoners count for an additional 17%. A Black person is seven times more likely to go to prison than a white person. Indeed, as a study by the Sentencing Project revealed, almost one-third of Black men between the ages of 20 and 29 will be under some form of criminal justice supervision---prison, jail, probation or parole---on any given day. Further, the last decade has seen an increase of more than 200% in the number of Black women in federal and state prisons. In some places in states where convicted felons are permanently disenfranchised, it is predicted that by 2020 the number of Black men who will be ineligible to vote will rise to about 35%; in cities like Houston, Memphis, Miami and New Orleans, as much as 50% of the Black male populations will be ineligible to vote. As stated by prisoner rights activist and leading theoretician Professor Angela Davis:

This out-of-control punishment industry is an extremely effective criminalization industry, for the racial imbalance in incarcerated populations is not recognized as evidence of structural racism, but rather invoked as a consequence of the assumed criminality of black people. In other words, the criminalization process works so well precisely because of the hidden logic of racism. Racist logic is deeply entrenched in the nation’s material and psychic structures. It is something with which we are all very familiar. The logic, in fact, can persist, even when direct illusions to race are removed.

Prison is now big business, a 40 billion dollar-a-year growth industry, with increasing competition for super-profits among large corporations engaged in the building, running and servicing of concrete and steel installations designed and built for the semi-permanent warehousing of thousands upon thousands of human bodies, and good for nothing else. Despite falling crime rates, more and more people are being sent to prison who clearly don’t belong there; three-fourths of those who have gone to prison in the last decade went for non-violent drug and property offenses, populating a prison system with almost one million non-violent offenders. All those in prison are treated more harshly than ever before, and generally denied meaningful programs of any kind; rehabilitation no longer even receives lip service; and those who are designated as problem prisoners are sent to special control units where they are denied fundamental human rights, sometimes for years on end.
Fueled by fear and racism, and manipulated by politicians and the media, criminal justice policy rather than crime itself is responsible for the emergence of this American gulag, which grimly surpasses that of any place or time in history. Like many others, we have been close witness to the emergence over the past 35 years of a prison-industrial complex, whose real, primary purpose is to control people of color and poor people, and silence any militant resistance to the government and its policies. Again quoting Professor Angela Davis:
The fear of crime has attained a status that bears a sinister similarity to the fear of communism as it came to restructure social perceptions during the fifties and sixties. The figure of the criminal - -the racialized figure of the criminal - has come to represent the most menacing enemy of American society. Virtually anything is acceptable - torture, brutality, vast expenditures of public funds - as long as it is done in the name of public safety. Racism has always found an easy route from its embeddedness in social structures to the psyches of collectives and individuals precisely because it mobilizes deep fears. While explicit, old-style racism may be increasingly socially unacceptable - precisely as a result of antiracist movements over the last forty years - this does not mean that U.S. society has been purged of racism. In fact, racism is more deeply embedded in socio-economic structures, and the vast populations of incarcerated people of color is dramatic evidence of the way racism systematically structures economic relations. At the same time, this structural racism is rarely recognized as racism. What we have come to recognize as open, explicit racism has in may ways begun to be replaced by a secluded camouflaged kind of racism, whose influence on people’s daily lives is as pervasive and systematic as the explicit forms of racism associated with the era of the struggle for civil rights.

Rather than jobs, education and opportunity, the policy of our government is to create prisons and jails and related means of intimidation and control. In a growing number of states, more tax money is spent for prisons than for higher education, and powerful guard unions which give millions of dollars to political candidates have helped to pass laws that send more people to prison for much longer periods.
Throughout almost four decades there has been an ongoing struggle on behalf of prisoners, their lawyers and supporters to secure the protections of the U.S. constitution on their behalf. Up until the mid-1960's prisoners were deemed to have no enforceable constitutional rights. One opinion often cited by other courts referred to prisoner as “Slaves of the State.”
Essentially courts took the position, commonly referred to the hands-off doctrine that prison administrators had the necessary expertise to run the prisons and the courts should not interfere. They also invoked the idea of the separation of powers to allow the executive to have free rein to run the prisons, and state’s rights to avoid the federal courts from interfering with state prisons.
Slowly the hands off doctrine, began to erode. In 1964 in Cooper v. Pate, a case arising out of Stateville Correctional Center in Joliet, Illinois, the Supreme Court recognized the right of Thomas Cooper to practice his Muslim religion and to receive the holy Koran and sent the case back to the district court for Mr. Cooper to prove his claims of religious interference. This case was followed by Johnson v. Avery, in which the Supreme Court affirmed the right of prisoners - jailhouse lawyers - to assist other prisoners with their legal cases, and Cruz v. Beto, in which the Court again affirmed the right of a prisoner (Buddhist) to practice his religion.
In this period of the late 60's, many prisoners, directly influenced by the civil rights movement raging across the South, began to see that the struggle for civil rights also applied to their rights in prison. Also of great influence on the struggle of prisoner rights was the growing presence in prisons of many politically conscious Black prisoners, some of whom were the victims of false charges stemming from the FBI counter-intelligence programs, and Black Muslim prisoners who followed the teachings of the Hon. Elijah Muhammad and were denied the right to practice their religion in prison. It was the coming together of these forces, and the militant resistance of prisoners to inhuman treatment and conditions, culminating in the Attica prison rebellion in 1971 and the resulting murder of 39 defenseless prisoners by the State authorities of New York, that challenged the hands off doctrine. Between 1968 and 1975, a number of lower federal court opinions applied the constitution to guarantee the rights of prisoners to practice their religion, receive and send uncensored mail, to be relieved from cruel and unusual conditions of confinement, to receive decent medical care and due process before punishment or transfer. Assisted by a group of young radical lawyers, the prisoner rights era brought forth the principle that prisoners did not give up their constitutional rights when they entered the prison gates. These lower court rulings, which recognized the fundamental rights of prisoners in all areas of prison life, were significantly limited in their scope and application as they reached the United States Supreme Court.
For the past 25 years prisoners have suffered in a climate that has not been favorable to prisoners. The Supreme Court has in significant part sought to reinstitute the hands off doctrine under the guise of deference to the security concerns of prison administrators. This, coupled with the passing of the Prison Reform Litigation Act (PRLA) in 1995 which discouraged pro se law suits, suits by private lawyers, injunctive and class-action claims, has created a climate of fear and repression, in closed societies in which the constitution has less and less meaning to protect the fundamental rights and safety of several million men and women.
This article will provide a brief overview of the limited constitutional rights of prisoners today and how they evolved and devolved after a brief golden age in the early 1970's, including First Amendment rights of prisoners, prisoners’ due process rights, the explosion of special high security control unit prisons and prison units, the rights of prisoners to be free from cruel and unusual punishment and conditions, to receive necessary medical care, access to the courts, the growth of private prisons, Political Prisoners, and the on-going prisoner rights support movement.
FIRST AMENDMENT RIGHTS OF PRISONERS
In the early 1970's following the explosion of litigation on behalf of prisoners, the lower federal courts exhibited an openness to protecting the First Amendment rights of prisoners. A slew of cases began to carve inroads into the broad ranging deference given to prison officials, finding that prisoners had the right to practice their religion free from unreasonable interference, the right to send and receive mail free of unnecessary censorship, visits from the media, to receive books and other publications, and even to join prisoner organizations and to establish unions to raise collective grievances. By the time some of these case wound their way up to the U.S. Supreme Court, the Court began to scale back on these First Amendment rights and to reassert the principle of deference.
In 1974, in Procunier v. Martinez, the Supreme Court, while invoking the deference principle that courts were ill equipped to deal with the urgent problems of prison administration, nonetheless found that there were constitutional rights of non-prisoners implicated in censorship of prisoner mail and established an intermediary scrutiny test which required that a censorship regulation must further a substantial governmental interest and the restriction on correspondence must be no greater than necessary to protect such governmental interest. In the same term however in Procunier v. Pell, and Saxbe v. Washington Post, the Court rejected a right of the media to visit any prisoner it wished, finding that the press did not have any special privilege to visit prisoners and its access should be treated the same as the right of the general public.
Several years later the high court in Jones v. North Carolina, rejected a prisoner’s right to form a labor union, reiterating the deference principle: “Because the realities of running a penal institution are complex and difficult, we have recognized the wide-ranging deference to be accorded the decisions of prison administrators.” The Court upheld the ban on prison unions as rationally related to security, the central objective of prison administration. Again in 1979, the Court in addressing restrictions on the rights of pre-trial detainees in Bell v. Wolfish, invoked the principle of judicial deference stating that “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.”
In 1987, the Supreme Court set out an over-arching four-factor test to address all restrictions on the First Amendment constitutional rights of prisoners. In Turner v. Safley, the Court upheld a blanket ban on correspondence between prisoners in different institutions, while striking down a blanket ban on allowing prisoners to marry. In so doing the Court laid out the following test which has been the standard for deciding prisoners’ constitutional claims, with a few exceptions, since. First there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. The second factor is whether there is an alternative means of exercising the right that is restricted. Thirdly, the Court must look at the impact accommodation of the asserted constitutional right will have on guards and other prisoners and on the allocation of prison resources generally. Finally, the presence of an alternative means for the prisoner to exercise his rights at de minimis cost to a valid penological objective may be considered as evidence that the regulation does not satisfy the reasonable relationship standard.
Despite the four factors set out in Turner, in essence the test was whether the restriction was rationally related to prison security, discipline or the orderly running of the institution or whether it was an irrational exaggerated response. This principle, combined with the continuing invocation of judicial deference, created an extremely difficult standard to satisfy when challenging a prison restriction on First Amendment rights. The implications of Turner were quickly apparent in another prisoner case decided the same term, O’Lone v. Shabazz, in which the Court upheld a restriction on Muslims who worked outside the prison to return for congregational services, Jumu’ah. The Court found that the reason for prohibiting the prisoners from returning to worship was based on institution order and security and thus rationally related to a legitimate penological purpose and that further, the fact that the regulation prevented the prisoners from any congregational worship (See second Turner factor) did not create a problem, since the prisoners were still free to worship on their own.
Prison security, discipline and the orderly running of the institution were now the shibboleths that justified restrictions and even the elimination of the First Amendment prisoner rights. Following Turner and O’Lone, the Court in Thornburgh v. Abbott, upheld restrictions on reading materials sent in from the outside if prison authorities found them to be detrimental to institutional security. Relying on Turner, the court found that such regulations were rationally related to prison security and further, to the extent that Procunier v. Martinez had found that the implication of non-prisoners rights were involved created a higher standard for restrictions, such holding was specifically overruled.
The severe limitations on First Amendment rights of prisoners created by Turner and its progeny can be clearly seen in a 2003 unanimous Supreme Court opinion upholding draconian visiting restrictions on prisoners in Michigan. In Overton v. Bazzetta, the Court upheld under the Turner rational relationship test restriction on non-contact visits, which prohibited all children who were not the sibling, child or grandchild of the prisoner from visiting, all children from visiting who were not accompanied by a legal guardian, and all former prisoners, and, as punishment, all prisoners who had two substance-abuse violations. Even though non-contact visits eliminated any real security problem with these visits, and even though plaintiffs argued that the restrictions were unreasonable and arbitrary, the Court had no problem relying on Turner to deny prisoners even limited freedom of association, without a single dissent.
Interestingly, two recent Supreme Court cases have created some limited exceptions to the well-entrenched Turner v. Safley rule. In Johnson v. California, the Court rejected the state’s security argument for racially segregating prisoners to avoid gang and racial disturbances and found that the equal protection clause prohibited racial discrimination against prisoners. In doing so, the Court applied a strict scrutiny test and required on remand that the California Department of Corrections demonstrate that the segregation policy was narrowly tailored to serve a compelling state interest. The Court found that Turner does not apply to racial classifications and held that “we have applied Turner’s reasonableness test only to rights that are inconsistent with proper incarceration.”
In addition, in Cutter v. Wilkinson, the Court upheld Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 which stated that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest,” and does so by the “least restrictive means.” Ignoring its decisions in Turner and O’Lone, the Court sanctioned the strict scrutiny test for burdens placed on prisoner practice of religion, simply stating:
We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. . . .

We have no cause to believe that RLUIPA would not be applied in an appropriate balanced way, with particular sensitivity to security concerns.
While the Act adopts a compelling governmental interest standard,
[...] context matters in the application of that standard.

If the Court in Cutter believes that the strict scrutiny test can be applied without threatening prison security and discipline to protect religious freedom, it seems a fair question to ask why a similar standard is not workable and appropriate to protect the prisoner’s exercise of his fundamental First Amendment rights of speech and association.
THE DUE PROCESS WINDING ROAD
The right of a prisoner to be afforded notice and a due process hearing prior to placement in segregation or other disciplinary punishment has followed a trajectory similar to the First Amendment law. In the early 1970's, a group of cases building off of the due process rights established for probation and parole revocation hearings, (see Morrissey v. Brewer, and Gagnon v. Scarpelli ) held that due process safeguards were required, including notice and a hearing with the right to confront and cross-examine accusers, call witnesses and even the right to counsel. Some lower courts applied due process protections to loss of good time, parole release denial and even transfers from one prison to another, denial of commissary and yard privileges. By the time these cases reached the Supreme Court by the mid and late 1970's, the expansiveness of these rulings was substantially cut back, and over the following two decades the due process protections for prisoners became hardly protections at all.
In Wolff v. McDonald, the Supreme Court recognized that some process was due, based on a liberty interest created by the language of state statutes or prison regulations, before a prisoner could be placed in disciplinary segregation. However, balancing the competing interest of prison security against fairness to the prisoner, the Wolff court eliminated the right of a prisoner to confront and cross-examine his/her accuser or to be represented by counsel at a hearing. Following Wolff, the high court also found that transfer of a prisoner from one prison to another, to a higher security level prison, or out of state to another prison, did not implicate due process, and the prisoner was not entitled to a hearing.
In Preiser v. Rodriguez, the Supreme Court held that any challenge to loss of good time could affect the prisoner’s release date, and thus had to be pursued in habeas corpus rather than under civil rights law. This ruling thus required a prisoner to exhaust his administrative and state court remedies before any federal habeas challenge to loss of good time.23 This 2004-2005 term however the Court clarified its requirement that any prisoner suit which, if successful, would mean immediate or speedier release had to be brought in habeas, affirming a lower court ruling which allowed a challenge to Ohio’s parole procedures under the Civil Rights Act, since the prisoners were not asking for release, and a favorable ruling would not necessarily mean an earlier release.24
The Court also substantially cut back any due process safeguards for those challenging denial of parole, providing only the right to notice, to be heard and to be apprised of the reasons for the denial of parole.25
Even the limitations on due process rights established by Wolff came under attack by prison administrators, and in Helms v. Hewitt,26 the Court found that although the state law had created some liberty interest, a prisoner placed in administrative segregation for 30 days was not entitled to a hearing in which he could call witnesses, but only notice of the charges and the opportunity to be heard, which could be satisfied by writing a letter to the hearing officer. Over a decade later, in Sandin v. Conner,27 the Supreme Court held that any due process, even the minimal process of Helms, was only required to be afforded if the state law or prison regulations provided some mandatory right and the punishment imposed an “atypical and significant hardship” on a prisoner in relation to the ordinary incidents of prison life. The meaning of this phrase was left intentionally vague, and many lower courts have now found that placement in segregation or other punishments are not sufficiently atypical or harsh so as to merit any due process before transfer. This last term, in dealing with the harsh reality of an Ohio control unit prison in which prisoners were confined indefinitely 23 ½ hours each day, prohibited from outside recreation and ineligible for parole, satisfied the hardship and the atypicality envisioned by Sandin and did require due process prior to placement and in periodic review for release. See Austin v. Wilkinson,28 (See discussion of control units, infra).
ACCESS TO THE COURTS AND THE RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT

The two remaining major areas of prisoner rights, access to the courts and the right to be free from cruel and unusual punishment, have also been subjected to substantial restrictions by the Supreme Court in the last thirty years. The right of a prisoner to have access to the courts to challenge his/her conviction or to raise civil rights claims about her/his treatment or conditions of confinement was one of the first rights recognized and applied to prisoners by the Court. In Johnson v. Avery,29 the Supreme Court held that a Tennessee statute forbidding one prisoner from helping another prisoner with his legal case, in the absence of alternative legal assistance for a prisoner, was an impermissible interference with a prisoner’s right of access to the courts. Several years later, the Court in Bounds v. Smith30 issued a far-reaching opinion holding that the prison officials had an affirmative duty to assist a prisoner with his/her legal case, and in the absence of alternative legal assistance, the prison had a duty to provide an adequate law library in each one of its prisons.
This ruling which created an affirmative duty on all state and federal prison systems to provide legal assistance or to create law libraries in each institution was essentially swept away in a 1996 opinion. In Lewis v. Casey,31 the Court found that unless a prisoner could show that he was injured in fact by denial of access to a law library, i.e., he was not able to file a colorable lawsuit or that a law suit was dismissed as a result of no access to a law library, that such prisoner or class of prisoners had no standing to challenge limitations on their access to or the adequacy of a law library. The Court held that the constitutional right is not one of access to a law library, but access to the courts, which is not violated unless the prisoner can show how his legal case was specifically harmed. In reaching this ruling the Court again invoked the importance of deference to the expertise of the prison authorities, holding that even a regulation barring all segregation prisoners from law library access was rational under the Turner standard, as it was based on prison security concerns.
Following a series of lower court rulings holding that the conditions of individual prisons and state-wide prison systems constituted cruel and unusual punishment, the first case before the Supreme Court which raised a challenge under the Eighth Amendment to prison conditions focused on the issue of double celling. While the Court found in Rhodes v. Chapman32 that double celling alone, given the adequacy of the other conditions of the prison, did not constitute cruel and unusual punishment, its reasoning clearly implied that if prison conditions as a whole were inadequate, those objective conditions alone could be held to be cruel and unusual punishment.
Ten years later, faced with allegations of grossly inadequate prison conditions, the Supreme Court in Wilson v. Seiter33 upped the ante. In Wilson, the Court now held that not only must the objective conditions satisfy the cruel and unusual standard, but that the 8th amendment also required a subjective standard, i.e., a state of mind or intent to violate the rights of a prisoner. The Court in Wilson held that to hold prison officials responsible for the cruel and unusual conditions, they must be shown to have been deliberately indifferent to the needs of the prisoner. By injecting a state of mind requirement into a challenge to a prisoner’s condition, the Court created an additional, often insurmountable, burden by requiring the prisoner to prove that a specific prison official knew of her conditions and intentionally refused to do anything about them. Such a ruling opened the door to a myriad of defenses to intolerable conditions and finger-pointing to the legislature or past prison administrations.
In reading into the 8th amendment a subjective state of mind requirement the Court relied on its earlier ruling in Estelle v. Gamble,34 in which it held that the denial or delay in providing medical care for serious medical needs - an objective standard - must be accompanied by a subjective state of mind - deliberate indifference - on the part of the doctor or prison official. In Estelle, the Court found that negligence in treating medical problems was not sufficient to violate the constitution and that the higher deliberate indifference standard was required.35
While this standard for medical claims by prisoners has remained the norm since 1976, the Court has interpreted the meaning of deliberate indifference to make it much harder to satisfy. In Farmer v. Brennan,36 in finding that prison officials had a duty under the 8th amendment to not be deliberately different in protecting one prisoner from another, the Court held that deliberate indifference means actual knowledge of the risk of harm and the intentional failure to take reasonable steps to remedy it. The Court made clear that if the doctor or prison official should have known of the risk but in fact he did not know, the standard is not met, nor is it met if the official took reasonable steps to remedy the problem though the problem persisted.
In Whitley v. Albers,37 the Court invoked a standard even higher than deliberate indifference when a prisoner sought damages from prison guards for use of force during a prison disturbance. The Court held that the prisoner had the burden to show that the force was used sadistically and maliciously for the very purpose of causing harm. Several years later the very high standard set in Whitley for use of force during prison disturbances was expanded to apply to any use of force by a guard against a prisoner, whether or not there was an on-going disturbance in the prison.38 At the same time, the Court in Hudson did reject the argument that the 8th amendment required a showing of serious physical injury, finding that gratuitous use of force was in and of itself shocking to basic standards of civil society, without a need to show serious physical injury.
However, by expanding the Whitley standard - sadistic and malicious for the very purpose of inflicting harm - to include all use of force by guards against prisoners at any time, the Court turned a blind eye to the rampant brutality existing throughout the country’s prisons and created a standard so difficult to meet that any deterrent effect by prisoner suits was greatly diminished.
PRIVATE PRISONS
Private prisons boomed in the 1990’s, and state governments increasingly transferred prisoners to corporate-owned profit-motivated prisons. Not surprisingly, there was a rash of scandals involving overcharging, numerous incidents of guard brutality, prisoner on prisoner violence, and inferior medical care. Substandard conditions, inadequate training, high turnover, understaffing and chronic security lapses were the norm. Moreover prison riots rocked private prison facilities in Colorado and Mississippi. The stock of the largest of the private prison group, Corrections Corporation of America (CCA), fell sharply and the company neared bankruptcy. It looked like the privatization of prisons, touted by some to be the future of corrections, was going to remain at best a small percentage of the prison system.
However, under the Bush administration the number of federal prisoners has grown by two-thirds since 2000. Nearly 30 per cent of CCA’s 67,000 prisoners now come from federal agencies. Thousands of more illegal immigrants reside in for-profit facilities, awaiting sentence or deportation. It is predicted that in the next five years the number of federal prisoners held in private prisons will increase an additional 30 per cent.

Private prisons raise a myriad of legal issues, some of which have been addressed by the Supreme Court and many that have yet to be decided. In Richardson v. McKnight,39 the Court held that a private prison guard was not entitled to qualified immunity if sued under the civil right act. In deciding Richardson, however, the Court left open the question whether private prison employees are acting under color of law for purposes of civil rights suits. The Court has also yet to decide whether and under what standard a State can be sued for contracting with a private prison which has abused the rights of its prisoners.
POLITICAL PRISONERS40
For political prisoners, the last 35 years have represented an ever-increasing risk to their health and well being, and a coinciding ever-diminishing respect for their civil and human rights, particularly since 911 and its concomitant anti-terrorist hysteria.
While the United States has always had political prisoners, the 1970's and early 1980's saw their numbers swell in ranks, as the government cracked down on the many revolutionary and radical movements which challenged, often by taking up arms, U.S. policies such as the colonial control of Puerto Rico or the genocide of the Black community. In the early 1990's political prisoner support groups listed over 100 political prisoners in federal and state prisons.41
The past 35 years has shown really little change in how the U.S. uses prisons and jails as part of its greater effort to suppress progressive, radical and revolutionary movements. Placing false or exaggerated charges against activists; seeking civil and criminal contempt for not complying with subpoenas to grand juries investigating political movements; extending pretrial detention accomplished by exorbitant bail or preventive detention; imposing disproportionately lengthy prison sentences and harsh, exceptional prison conditions calculated to break the political backs of individuals, are all historical methods still in use today. However, post 911 anti-terrorist hysteria has fueled legislation, including criminalizing material support for designated “foreign terrorist organizations,” to provide the government with more flexibility and more powerful tools in its arsenal.
In the 1970's and 80's the FBI’s COINTEL42 program targeted the Black Liberation movement in order to neutralize and disrupt the movement and destroy charismatic Black leaders. Illinois Black Panther leaders Fred Hampton and Mark Clark were assassinated and many others throughout the country were falsely accused, framed up and sent to prison with draconian sentences. Many are still in prison 30 years later. Numerous other political activists were also targeted including Native American leader Leonard Peltier. Today, the focus has turned to Muslims and Arabs, who are targeted and subjected to sensational and exaggerated charges.
The federal grand jury has historically been used as a repressive tool to imprison activisits in political movements. Many subpoenaed movement members practiced non-cooperation with such federal investigations, viewing cooperation as assisting the government’s efforts to destroy their movement and turn them into informers.43 When lengthy imprisonment proved unsuccessful in coercing cooperation, in the 1980's, the government turned to criminal contempt, rather than civl contempt which was limited to the life of the grand jury (18 months), and sought sentences as long as 10 years for the “crime” of not testifying in front of the grand jury.44 Still a potent weapon, the grand jury is currently being wielded in California against the environmental and animal liberation movements, and in Chicago and New York against supporters of the liberation of the Palestinian people from the illegal occupation of their land.
Political prisoners throughout the decades have been sentenced to terms in prison that far exceed sentences meted out to those who commit violent anti-social acts. Sentences given to the right wing pale in comparison.45 Unchanging over the passage of years, these harsh sentences are intended to break the spirit of resistance of the prisoner and threaten other movement members. In 1981, the year 12 Puerto Rican political prisoners were sentenced, the average federal sentence for murder was 10.3 years.46 The Puerto Rican political prisoners—convicted of seditious conspiracy, but not of hurting anyone or taking lives—were sentenced to an average of 65.4 years, 6 times longer than the average. By 1997, the average federal sentence for murder/manslaughter was 153 months, or less than 13 years.47 Similar examples abound from every other radical movement.
While political prisoners throughout history have always been singled out for harsh, more punitive treatment, the development of control units and control unit prisons has provided the government an additional tool designed to break their spirit.48 Prison misconduct, the norm for social prisoners’ selection for these units, is irrelevant when it comes to political prisoners, some of whom are sent directly following conviction. USP Marion, IL, has hosted men from each generation of virtually every radical and revolutionary movement.49 For women, Alderson’s Davis Hall (1970's) and Cardinal Unit (1984) were precursors to the notorious Women’s High Security Unit in Lexington, KY (1986 to 1988), where release was contingent upon renouncing one’s radical politics.50 Upping the ante, in 1994 the feds opened ADX Florence, CO, where initial and early inhabitants included Oscar López Rivera, Mutulu Shakur, and Raymond Levasseur.51 A decade later, the Bureau of Prisons asked Congress for $23 million to build up to '24 new super-secure cells for convicted terrorists' in this morgue-like prison.52 Political prisoners fortunate enough to avoid Control Units are often denied the increasingly diminishing programs and privileges available to the prison population, and are usually subject to special, intense monitoring of movement, mail, telephone and visits.
The courts, which have not been particularly hospitable fora for social prisoners, are even less so for political prisoners. Legal challenges by political prisoners have met with little success, with courts rejecting claims that conditions, classifications, placement, or parole denials are politically punitive or otherwise violative of the constitution.53
Conditional release on parole was supposed to reduce sentencing disparities, provide a remedy for those who had received excessive sentences, as well as to reward those who had become rehabilitated. Part of the federal sentencing scheme until 1984, parole was abolished under the Sentencing Reform Act, 18 U.S.C.S. § 3551 et seq., supposedly aimed at eliminating sentencing disparity, purportedly caused by the great discretion left in the hands of sentencing judges and parole authorities.54 The concept of rehabilitation was virtually eliminated, as were programs —educational55, religious, cultural, recreational. The many political prisoners still in custody, convicted before the advent of the “reform,” while technically eligible for conditional release, are rarely afforded this remedy, not because they fail to meet the eligibility criteria—they are model prisoners—but because the parole commission bows to political pressure from the right and law enforcement.56
POST 911
Within hours of the World Trade Center attack on September 11, 2001, political prisoners throughout the United States were removed from general population and taken to segregation. None of them was suspected of involvement in the attacks. None was suspected of violating prison rules. None was allowed to communicate with attorneys or family members to inform them what was being done to them.57 Some were segregated for months.
A new law assures their vulnerability to illegitimate political punishment. On October 26, 2001, the same day the president signed the USA Patriot Act, the attorney general implemented new rules amending rules in effect since the 1993 World Trade Center bombing and the 1995 bombing of the Oklahoma City Federal Building, extending the time for the segregation of prisoners for up to a year at a time and providing for intervention into the confidential communications between prisoners and their attorneys, by making prisoners eligible for “Special Administrative Measures” [SAMs] where national security may be affected.58 Such measures not only censor prisoners and prohibit attorneys from repeating things their clients have told them, but also allow the government to eavesdrop on what would otherwise be confidential attorney-client communication. Of course, those most likely to be the subject of SAMs will be political prisoners or others the government considers “terrorist.”
The government has made it known that lawyers are also vulnerable under this new law. It was SAMs that resulted in the 2002 indictment of activist attorney Lynne Stewart for her representation of Sheikh Omar Abdel Rahman.59 Convicted in 2005, she is facing 30 years in prison. Many regard her prosecution as a travesty: “Since 9/11 the government’s message has been clear: if you defend someone we say is a terrorist, we may declare you to be one of them, and you will lose everything.”60 Regretfully she may soon join the ranks of political prisoners.
CONTROL UNITS61
But the images from Iraq looked all too American to me.
Anne-Marie Cusac, “Abu Ghraib, USA,”
The Progressive, July 2004

The Guantánamo and Abu Ghraib experiences are neither new nor surprising, but, rather, the logical consequence of the development over the past three decades of inhumane treatment of U.S. prisoners in special high security control units. Initially isolated units within maximum security prisons, ultimately converted into isolated prisons themselves, control units were conceived and instituted as places to separate militant, resistant prisoners from the general population, to gather intelligence from them, and to try to break their spirit and resistance. While “terrorism” serves as a ready justification, regardless of a factual basis,62 for Guantánamo and Abu Ghraib, a similar faulty justification, “the worst of the worst,”63 is the excuse for constructing and filling the over the 30 control unit prisons that exist today in the United States.
The legal challenges to Control Units focus now on procedural due process claims, as the courts have shamelessly rejected 8th amendment, cruel and unusual punishment claims, while hypocritically lamenting the “sordid and horrible,” “depressing in the extreme”64 conditions.
The emergence of control units started at the USP Marion, Illinois65, when, in 1972, in order to break a general work stoppage, authorities separated those they suspected of “insubordination,” without adequate due process and for indefinite terms, in a fashion quite distinct from routine disciplinary segregation. Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973).
Efforts soon formalized at USP Marion, where H block was officially named the Control Unit, spawning litigation to challenge it in the 70's and early 80's.66 Always the trend setter, in 1983, authorities at USP Marion permanently locked down the entire population, converting this maximum security prison into the nation’s first control unit prison, ignoring the well-documented threat to mental health posed by long term isolation, as well as the fact that few “qualified” for placement in such restrictive confinement.67 Perhaps conscious of the potential trend this lockdown would trigger, activists rallied, human rights organizations and churches widely condemned the conditions as torturous,68 and moved Congress to convene oversight hearings. Officials continued to put forth the false argument that the concentration of all the “bad apples” permitted the rest of the system to function more openly,69 as they increased restrictions and decreased programming throughout the system. The broad class action challenge to the lockdown, from arbitrary placement/due process to excessive force and other cruel and unusual treatment to access to courts and lack of religious freedom, was resoundingly rejected.70
Soon after the Marion lockdown, in 1984 the BOP experimented with the Cardinal Unit, at FCI Alderson, where for 10 months two Puerto Rican women political prisoners were held, their every move scrutinized and documented. The unit was a precursor to the notorious, subterranean Women’s High Security Unit in Lexington, KY, opened in 1986, also for women political prisoners, where release was contingent upon renouncing one’s radical politics.71 Closed in 1988 as a result of public pressure,72 the government vowed to move its “mission” to the newly constructed FCI Marianna, FL.
Emboldened by the legislative and judicial refusal to intervene and the court’s wholesale deference of the government’s justification, the development of control unit prisons, technologically sophisticated and militarily prepared, galloped apace throughout state correctional systems. Once constructed, as with USP Marion, when there weren’t enough “bad apples” to fill the new beds, the classification systems became elastic enough to accommodate the state’s need to populate the new prisons. Again, as with Marion, spaces were often filled by writ writers, organizers,73 and a disproportionate number of Black, Latino, and Native American prisoners. In 1991, Human Rights Watch published a report finding the single most disturbing aspect of prison conditions in the U.S. was what it considered a dangerous trend toward “Marionization” of prison in the United States, noting the proliferation of state maximum security prisons modeled after Marion, and deploring the fact that 36 states, following Marion’s example, had created super-max prisons.74
The measures implemented in these units, far exceeding mere sensory deprivation, clearly paved the way for the torture so widely publicized in Guantánamo and Abu Ghraib, including “finger waves,”75 spread-eagle restraints, excessively numerous and intrusive strip searches, cell extractions,76 and the intolerable, unending, indeterminate length of stay.
By the 1990's, California’s Pelican Bay, which honed some of Marion’s worst characteristics, resulted in a broad class action raising due process placement, and 8th amendment excessive force and health care, culminating in a 1995 order appointing a special master.77 The court acknowledged what experts had been saying since the first control unit litigation,78 that “many, if not most, inmates [...] experience some degree of psychological trauma in reaction to their extreme social isolation and the severely restricted environmental stimulation,” nevertheless stopping short of declaring the entire unit in violation of the 8th Amendment. The court did order relief aimed at eliminating excessive force, improving health care, removing prisoners with mental illness, and addressing some of the due process issues related to placement.79
In 1994 the Bureau of Prisons opened the Administrative Maximum Unit [ADX] at Florence, Colorado, as its new flagship control unit prison, touting it as “the toughest prison on earth and housing some of America's most notorious villains.”80 Its state-of-the art technology has “fundamental effects [...] on the human senses: sight, touch, smell, taste. It restricts your world, puts it in a vise really,''81 in an unprecedented way, according to one of the political prisoners housed there. Within a decade, the BOP upped the ante, advertising plans to convert at least part of ADX into a prison for “terrorists.”82

As we move into the 21st century, Wilkinson v. Austin, 125 S.Ct. 2384 (2005) became the first control unit case to reach the high court. Focusing exclusively on due process issues involved in placing Ohio prisoners into the state’s supermax, the court found that the prisoners had a protected liberty interest, ruled that the unique, extreme conditions, including indefinite duration reviewed only annually and ineligibility for parole, pose an “atypical and significant hardship” compared to ordinary prison life such that they warranted some due process protections, purportedly to prevent arbitrary placement, and found that the state’s due process regime satisfied constitutional requirements. The process must include written notice of the factual basis for consideration for placement and an opportunity to rebut. If the decision is made to place the prisoner, then he is entitled to a statement of reasons for placement, and placement is to be reviewed at least annually. Celebrated by some as offering some protection to prisoners, the opinion legitimizes the existence and operation of control units.
While some speculate that the “bloom is off the supermax experiment”83 flower, noting the slowing pace of constructing new control unit prisons, conversion of one state’s supermax to a regular maximum security prison, and the incomparable cost to already stretched state budgets, thousands of prisoners in the multitude of existing control units wage a daily struggle to survive the increasingly oppressive and seemingly endless high tech isolation from all things human.
PRISON ORGANIZING AND RESISTANCE
The human warehouses we know as prisons are, in practice, not public institutions. Virtually inaccessible and unaccountable, they shun the light of day (particularly from journalists or independent filmmakers) bridle at inquiry, and spurn criticism. Over the past 35, years as the U.S. prison system has become the most populous in the world, as people of color and poor people are detained in outrageously disproportionate numbers, as control unit prisons proliferate, educational programs abate, and conditions become more militaristic and oppressive, the courts have not brought about significant change, and the present and future Supreme Court offers no optimism about the future.
Yet prisons are affected by public opinion and intervention. At significant historical moments in the development of the role of prisons in the society, people have galvanized to organize, educate, and affect policy. Prison organizing has become an essential means of monitoring conditions, advocating for prisoners’ rights, and pressing for change. Such education and organizing efforts have taken basically three forms, with some overlap: support for individual cases or political prisoners; attempts to reform the system; and more radical approaches which contextualize the criminal justice system within the U.S. capitalist system, and identify its classist and racist function. Not surprisingly, often the strongest, most effective organizing is done by and with former prisoners.
The 1971 Attica Rebellion inspired an enormous organizing effort, to defend those falsely accused and to support the decades long civil rights lawsuit. Under the theme “Attica Is All Of Us,” the prison bars were no longer as much a barrier as the state would have them be, as prisoner family members, former prisoners, law students, radicals and hundreds rallied to support the Attica Brothers.
Attica is not just an isolated prison,” [Attica Brother] Frank Smith says. "Attica is attitudes and behavior, crime and punishment, education. It's about communication, it's about alleviating racism as much as we can, it's about the criminal justice system.... People need to see they are part of the problem and part of the solution. Attica is all of us.”84

Grassroots groups throughout the country began to organize in the 1970's as consciousness spread about other prison uprisings,85 growing numbers of political prisoners,86 and other issues87 such as the discriminatory treatment of women prisoners,88 including battered women wrongfully imprisoned for defending themselves against abuse.89
In the 1980's, work against Control Units was initiated by the Committee to End the Marion Lockdown, which foresaw the imminent proliferation of control units and organized to expose and end the lockdown, with an emphasis on the racist aspects of imprisonment and in support for political prisoners. The serious research, community work, and numerous marches, conferences, rallies and demonstrations done by the committee provided a strong foundation for new committees which sprouted at the source of new control units and over time developed into new coalitions, such as the National Anti-Control Unit Network, and the National Committee to Stop Control Unit Prisons.
As the state and federal governments went on a rampage of prison construction and the numbers of prisoners greatly increased, prison organizing flourished. Some groups took a more mainstream approach, such as the 1986 incorporation of the Sentencing Project, which, in advocating alternatives to imprisonment, became a credible source of criminal justice policy analysis and data, with well-researched publications that reached the mainstream media. In response to the “drug wars” and mandatory sentencing legislation which helped pack the prisons, Families Against Mandatory Minimums, founded in 1991 and based in Washington, D.C., with branches throughout the country, lobbied legislatures to adopt saner sentencing policies.90 Others took a more activist approach, such as organizations responding to the HIV/AIDS epidemic, and later, to Hepatitis in prison.91
In the 1990's, the prison movement began to broaden, particularly in California, where California Prison Focus, the National Radio Project Prison Desk, and so many other groups helped keep the issue visible. An umbrella Prison Activist Resource Center formed with the goals of “expos[ing] the myths that sustain widespread injustices in prisons and in the communities most affected by mass imprisonment” and inspiring people to take action.92
By the late 90's, when prisons and the criminal justice system became so profitable to be recognized as the prison industrial complex,93 the Critical Resistance movement emerged to take on the beast, “challenging the belief that caging and controlling people makes us safe.” It attempts to build a national grassroots movement, convening conferences and workshops, conducting educational campaigns and doing community work, urging the idea that prison is not the answer to complex social problems, that more police and prisons do not make communities safer. Many groups raised the critique that spending tax dollars to warehouse human beings was counterproductive,94 and the analysis re-emerged that it was not in the state’s financial interest to continue this costly and failed imprisonment strategy.95

Throughout the decades, the work around political prisoners has been consistent, with its ebbs and flows. While the various national and political movements, and some individuals, have always maintained committees, the late 1980's and early 90's saw an attempt to collectivize the work across such boundaries, in Freedom Now, which convened an unprecedented people’s tribunal, resulting in a verdict that the U.S. was guilty of violating the human rights of the more than 100 political prisoners in its custody, and heightened visibility of the issue. More particularized work is carried on today by organizations such as the Jericho Movement, National Boricua Human Rights Network, the Leonard Peltier Defense Committee, Out of Control Lesbian Committee to Support Women Political Prisoners, MOVE, etc. Work to oppose the death penalty for Mumia Abu Jamal has been broad and consistent. While some of the work has been in coordination with pending litigation, the general focus has been to make the invisible visible, to present the human face to counter the dehumanizing characterizations, to place the issue in the human rights context, and by public advocacy, hopefully temper the government’s iron fist and thereby offer support and protection to those imprisoned.
With the advent of the new millennium, the International Human Rights Initiative began an effort dubbed “From Attica to Abu Ghraib,” challenging the escalation of the U.S.’ use of torture, illegal detention and other human rights abuses to crush resistance at home and abroad. Other international campaigns include Hands Off Assata, opposing government efforts to force a return of Assata Shakur from political asylum in Cuba and re-imprison her in the U.S., as well as support for the five Cuban anti-terrorist prisoners, whose convictions were recently overturned by the 11th Circuit Court of Appeals.96
Although the obstacles to meaningful success through litigation are substantial, there are still possibilities for legal victories,97 and litigation is useful to expose injustices that otherwise would never see the light of day. It also serves to educate the public about the inhumanity of prisons. Lawyers, who have broader access rights to prisoners than the media and general public, have a special obligation to visit and report human rights violations behind the walls. Just simply shedding a little light on to the darkness behind the walls can make a difference. The threat of litigation or the mere filing of a lawsuit can sometimes force changes which may well save lives or ameliorate suffering. As we continue to advocate in any way possible for humane treatment of prisoners, we also must share our analysis of the role of prisons and the criminal justice system in the United States.
CONCLUSION
The public and privatized penal institutions must be accessible and accountable, a goal which can be accomplished only by a movement to educate—to reach people at all levels, humanitarian, economic and common sense—and mobilize, to show them that billions of tax dollars are being squandered on revolving door policies, which do not make us safer and are destroying entire communities. We must continue to build a movement which explicitly opposes the policy of warehousing in prisons people of color and poor people in unprecedented and genocidal numbers while their communities are devastated by neglect and indifference. The heartbreaking scenes of the poor Black people of New Orleans stranded for days after hurricane Katrina in inhumane conditions, without adequate food, water or medical attention, underscores the racist policies that drive this country. Until we require the government to invest as much resources in education, housing, jobs and health care in the Black and Latino communities as it does in the white middle- and upper-class communities, the state will continue to use prisons as a racist substitute for its responsibility to provide for all the people of this country.

Subscribe today

Already a subscriber? Login