June 2, 2010
Ms. Sarah Qureshi
Office of General Counsel
Bureau of Prisons
320 First Street, N.W.
Washington, DC 20534
Re: BOP Docket No. 1148-P
Dear Ms. Qureshi:
Raul S. Banasco, Steve J. Martin, Ron McAndrew, and the Brennan Center
for Justice at New York University School of Law submit these comments in
response to the pending Notice of Proposed Rulemaking titled Communication
Management Units, issued by the Federal Bureau of Prisons (BOP).1 We believe that
modifications to the proposed rule would substantially improve Communication
Management Units (CMUs), making them both more effective and less harsh.
IDENTITY AND INTEREST OF THE COMMENTERS
The Brennan Center for Justice at New York University School of Law is a
non-partisan public policy and law institute that focuses on the fundamental issues of
democracy and justice. Our work ranges from voting rights to campaign finance
reform, from racial justice in criminal law to presidential power in the fight against
terrorism. A singular institution – part think tank, part public interest law firm, part
advocacy group – the Brennan Center combines scholarship, legislative and legal
advocacy, and communications to win meaningful, measurable change in the public
sector. The Brennan Center advocates for national security policies that respect the
rule of law, constitutional and human rights, and fundamental freedoms.
Raul Banasco began his career in the juvenile justice/corrections field in 1986
with the New York State Juvenile Justice Department. In 1988, he joined the Florida
State Department of Corrections (FDOC) as a Correctional Officer at the Central
Florida Reception Center. During his 19 years with FDOC, he served as a
Correctional Officer, Classification Officer, Probation Officer, Probation Supervisor,
1

75 Fed. Reg. 17324 (Apr. 6, 2010), BOP Docket No. 1148-P.

Classification Supervisor, Assistant Warden of Operations and Programs, Warden
and Director of Staff Development of over 28,000 employees throughout the State of
Florida both for Institutions and Probation & Parole services. In October 2006, he
was appointed by Orlando’s Mayor Richard Crotty to be the Major at the Orange
County Corrections Department in Orlando, Florida. As the Major, he was
responsible for daily operations of 4,200 inmates and 600 certified and civilian staff.
In September 2008, he was appointed to the position of Deputy Chief of the Osceola
County Corrections Department.
Steve J. Martin is a career corrections professional currently engaged in
private practice as a corrections consultant. He is actively involved in a variety of
roles as a consulting expert, federal court monitor and court appointed expert in 15
states, Puerto Rico and the Virgin Islands. He served as a corrections expert for the
U.S. Department of Justice, Civil Rights Division, for approximately 15 years. He
has worked as a consultant in more than forty states and has visited or inspected more
than 700 confinement facilities in the U.S., Guam, Saipan, Jamaica, Puerto Rico, and
the Virgin Islands. He has served or currently serves as a federal court monitor in
three prison systems and four large metropolitan jail systems. During more than
thirty-seven years in the criminal justice field, he has worked as a correctional officer,
probation and parole officer and prosecutor. He is the former General Counsel/Chief
of Staff of the Texas prison system and has served gubernatorial appointments in
Texas on both a sentencing commission and a council for mentally impaired
offenders. He has appeared/testified before a large variety of oversight entities
including the U.S. Congress. He has extensive experience in the development of
correctional standards, policies, procedures and guidelines for confinement operations
across the United States.
Ron McAndrew began his more than 20-year career with the Florida
Department of Corrections in 1979 as a Correctional Officer at Dade Correctional
Institution. From 1992 to 1996, he served as Warden of Gulf Correctional Institution,
a facility consisting of five units and housing 3300 inmates. From 1996 to 1998, he
served as Warden of Florida State Prison, supervising all aspects of the facility,
including the execution of inmates on Florida's death row, as ordered by the
Governor. From 1998 to 2001, he served as Warden of Central Florida Reception
Center, overseeing a population of approximately 3000 inmates. Upon retirement
from the Florida Department of Corrections, Mr. McAndrew served as Interim
Director of Corrections for Orange County, Florida.

2

INTRODUCTION AND SUMMARY
Corrections officials can – and should – limit inmates’ communications as
necessary to preserve order in prisons, to protect the safety of inmates and staff, and
to block communications that could facilitate crime. Overly restrictive limitations,
however, are counterproductive. As detailed below, they make prisons more
dangerous, increase recidivism, and harm inmates and their families.
We believe that the proposed rule would impose overly harsh restrictions on
CMU inmates, and we recommend several revisions that would improve the rule.
Our recommendations flow from two basic principles. First, prisons must always
preserve security, but inmates must be accorded meaningful opportunities for contact
with the outside world, consistent with measures sufficient to maintain security.
Second, procedures should ensure that BOP sends inmates to a CMU only when their
communications create genuine risks.
In keeping with these principles, we recommend the following revisions to the
proposed rule, each discussed below in greater detail:
•

Refine the standard for CMU designation.

•

Increase phone, visitation, and correspondence opportunities for CMU
inmates.

•

Authorize contact visits between CMU inmates and family members,
consistent with BOP policies that apply to most inmates, unless
specific evidence shows a risk that inmates will abuse contact visits.

•

Allow inmates to challenge initial CMU designation through
meaningful hearings.

•

Establish clear mechanisms for challenges to ongoing CMU
placement.

BOP can implement such changes without compromising the stated purpose
of the proposed rule which, according to the Notice of Proposed Rulemaking
(NPRM), is to facilitate total monitoring of certain inmates’ communications.2 BOP
could make the recommended changes while still operating the CMUs to monitor all
communications of designated inmates.3

2

75 Fed. Reg. at 17325.

3

The proposed rule would not entail monitoring or limitation of attorney-client
communications. Proposed 28 C.F.R. §§ 540.203(c); 540.204(b); 540.205(b).

3

THE EFFECT OF EXCESSIVE RESTRICTIONS ON COMMUNICATION
BOP should avoid overbroad restrictions on communications between inmates
and family members. While imprisonment does not deprive a prisoner of all
constitutional entitlements, it permits greater restriction of inmates’ constitutional
rights than the rights of people who are not incarcerated. Consequently, the dangers
that particular inmates pose sometimes require corrections officials to restrict those
inmates’ communications as necessary to maintain safety and order. At the same
time, overly harsh restrictions on communications can undermine prison order, cause
higher rates of recidivism, and exact a high cost on inmates and their families.
Cutting off communication between inmates and their families makes our
streets and our prisons less safe. Time and again, empirical research has shown that
inmates who maintain strong connections with their families are less likely to make
criminal activity a way of life. “Inmates who maintain family ties are less likely to
accept norms and behavior patterns of hardened criminals and become part of a
prison subculture.”4 As a result, preserving lines of communication between inmates
and family promotes order and security in prison. The positive effects of family
connections also continue after release from prison: “With remarkable consistency,
studies have shown that family contact during incarceration is associated with lower
recidivism rates.”5
Severe restrictions on communication also take a harsh toll on inmates and
their families. More than half of inmates in American prisons have children, and 80%
of those parents stay in touch with their children while incarcerated.6 Blocking
communication increases the pain that spouses, children, and parents feel when they
lose a member of their family to the penal system. Letters, visits, and telephone calls
create a lifeline between inmates and their families.

4

Shirley R. Klein et al., Inmate Family Functioning, 46 INT’L J.
THERAPY AND COMP. CRIMINOLOGY 95, 99 (2002) (citations omitted).
5

OF

OFFENDER

Nancy G. La Vinge, et al., Examining the Effect of Incarceration and In-Prison
Family Contact on Prisoners’ Family Relationships, 21 J. OF CONTEMP. CRIM. JUST.
314, 316 (2005) (citations omitted); see also Rebecca L. Naser & Christy A. Visher,
Family Members Experiences with Incarceration and Reentry, 7 W. CRIMINOLOGY
REV. 20, 21 (2006) (“[A] remarkably consistent association has been found between
family contact during incarceration and lower recidivism rates.”) (citations omitted).
6

Nasser & Visher, supra n.5 at 20-21.

4

RECOMMENDATIONS
Recommendation #1

Refine the Standard for CMU Designation

In recognition of the extreme isolation that CMUs entail, the standard for
designation must limit the CMU population to prisoners whose communications pose
a genuine threat. Such a standard should reflect the basic purpose of CMUs –
monitoring the communications of prisoners likely to use communications in
furtherance of serious conduct that is illegal or prohibited. As written, the criteria in
the proposed rule – any one of which would permit placement in a CMU – are
overbroad.
We propose the following standard in place of the current proposed section on
designation criteria:
Sec. 540.201 Designation criteria.
(a) An inmate may be designated to a Communication Management
Unit if the Bureau establishes, by a preponderance of the evidence:
(1) a substantial likelihood that the inmate will use communications
with non-inmates in furtherance of serious illegal conduct; or
(2) a recurring pattern of behavior in which the inmate violates rules
governing inmate communications.
(b) The Bureau may continue an inmate’s placement in a
Communication Management Unit when:
(1) in the case of an inmate designated to a Communication
Management Unit under Section (a)(1), there remains a substantial
likelihood that the inmate will use communications with non-inmates
in furtherance of serious illegal conduct; or
(2) in the case of an inmate designated to a Communication
Management Unit under Section (a)(2), a substantial likelihood exists
that the inmate will continue to violate the rules regarding inmate
communications.
As written, each of the criteria proposed by the Bureau is overbroad.
Proposed Section 540.201(a) would allow CMU placement based on an offense or
offense conduct that “included association, communication, or involvement, related to
international or domestic terrorism.”7 The failure to define “related to international or
domestic terrorism,” combined with the fact that inmates could face CMU placement
7

Proposed § 540.201(a).

5

based on offenses or offense conduct that involve mere “association” or
“communication” renders the subsection susceptible to overbroad interpretation.
Consider, for example, an individual who stole from a convenience store with an
accomplice who attended a mosque that was also frequented by suspected terrorists.
Under the proposed standard, mere “association” or “communication” with the
accomplice arguably could suffice for CMU placement.
Proposed Section 540.201(b) would permit CMU placement where a
prisoner’s “current offense(s) of conviction, offense conduct, or activity while
incarcerated indicates a propensity to encourage, coordinate, facilitate, or otherwise
act in furtherance of, illegal activity through communication with persons in the
community.”8 The provision defines neither how great the “propensity” must be nor
the quantum of proof necessary to “indicate[]” such a propensity. Moreover, the
offense of conviction or offense conduct alone may “indicate[] … [t]he propensity,”
meaning that prisoners convicted 30 years ago – and never charged with disciplinary
violations while in prison – could land in a CMU now and remain there indefinitely
based on actions they took decades in the past.
Proposed Section 540.201(c) would permit BOP to place in a CMU any
prisoner who “has attempted, or indicates a propensity, to contact victims of the
inmate’s current offense(s) of conviction.”9 The “indicates a propensity” language
suffers from the same infirmity as the previous subsection. The “has attempted”
language suggests that a prisoner may be placed in a CMU indefinitely for a single
attempted communication. Furthermore, the provision fails to specify whether the
contemplated contact must be prohibited, or even unwanted.
Proposed Section 540.201(d) would empower BOP to send prisoners to the
CMU if they “committed prohibited activity related to misuse/abuse of approved
communication methods while incarcerated.”10 The standard, which does not specify
whether the “misuse/abuse” must be serious or recurring, would sweep in a prisoner
who commits a trifling violation. Such placement, moreover, could be indefinite.
The standard does not require that the Bureau justify ongoing placement by showing
a continuing risk of abuse.
Finally, Proposed Section 540.201(e), a catch-all provision, would enable
BOP to place prisoners in a CMU where “[t]here is any other evidence of a potential
threat to the safe, secure, and orderly operation of prison facilities, or protection of
the public, as a result of the inmate’s communication with persons in the
community.”11 This remarkably low bar – “any … evidence” – would permit CMU
placement even when the evidence lacks credibility or is contradicted by more
8

Proposed § 540.201(b).

9

Proposed § 540.201(c).

10

Proposed § 540.201(d).

11

Proposed § 540.201(e).

6

compelling evidence. Moreover, the vagueness of the contemplated harm would
place few meaningful limits on prison officials’ discretion to deem an inmate a
“threat.” For example, an inmate who had an unusually large number of visitors
could be deemed a threat to the “orderly operation of prison facilities” due to the
minor disruption caused by the visits.
These criteria would empower BOP to send prisoners to a CMU without
sufficient justification. BOP should revise the proposed rule to eschew vague and
minimal standards, to ensure that placement in a CMU occurs only on the basis of
serious risks, and to allow for transfer out of a CMU if such risks dissipate over time.
Recommendation # 2:

Increase Phone, Visitation, and Correspondence
Opportunities for CMU Inmates

There is some ambiguity as to whether the restrictions in the proposed rule set
a minimum standard for communications by CMU prisoners or establish a norm that
will apply to all CMU prisoners, except those subject to discipline12 – but to the
extent the limitations are meant to establish a norm that will apply to ordinary CMU
prisoners, they are too restrictive. The proposed rule would allow inmates to make a
single fifteen-minute telephone call and to receive a single hour-long visit per
month.13 CMU inmates would be limited to one double-sided three-page letter per
week.14 These limitations would all but eliminate CMU inmates’ contact with the
outside world, leading to the adverse effects on inmates, families, and prison order
described above.
The restrictions depart dramatically from those that apply to other BOP
prisoners. BOP generally allows prisoners at least 300 minutes of telephone calls per

12

The NPRM characterizes the limitations on communication in the proposed rule as
a minimum standard, but then throws that description into question by stating that
BOP can depart below the purported floors. Specifically, the NPRM describes the
regulations as “a floor of limited communication, beneath which the Bureau cannot
restrict unless precipitated by the inmate’s violation of imposed limitations.” 75 Fed.
Reg. at 17325 (emphasis added). The NPRM also states that CMUs may have cells
for administrative and disciplinary segregation, Proposed 28 C.F.R. § 540.200(b),
which presumably also entail restrictions beneath the “floors.”
The so-called “floors,” then, may actually describe the level of
communications that BOP will authorize for most CMU inmates. After all, inmates
who have neither broken rules nor been placed in administrative or disciplinary
segregation are ordinary CMU inmates. As the rule is written, the restrictions could
actually operate as ceilings, applicable to all or most CMU inmates, except those
subject to disciplinary measures resulting in even greater restrictions.

13

Proposed 28 C.F.R. §§ 540.204(a) & 540.205(a).

14

Proposed 28 C.F.R. § 540.203(a).

7

month.15 General population inmates at Federal Correctional Institution (FCI) Terre
Haute (which also includes one of the CMUs) are allowed up to seven visits per
month.16 BOP does not ordinarily limit the amount of correspondence that general
population inmates may send and receive.17
The restrictions will also leave CMU prisoners with almost nothing to lose.
The threat of losing communication privileges helps incentivize good behavior by
inmates. If the norms are set at the proposed levels, correctional officers will have
virtually no options for punishment, other than complete elimination of an inmate’s
contact with the outside world.
Although the current restrictions that apply to most CMU prisoners (described
in Institution Supplements issued for the two facilities that contain CMUs) allow
more communication than the restrictions contemplated by the proposed rule, the
current limitations also fall well below the standards for most prisoners and do not
allow sufficient communication. At present, BOP apparently limits CMU inmates to
two fifteen-minute telephone calls per month and four two-hour visits a month.
While it is possible that communication at the general-population level may be
impracticable for CMU inmates, the divergence between these allowances and those
contemplated in the proposed rule is simply too great.
The primary purpose of CMUs is to monitor – not limit – prisoners’
communications.
BOP should increase CMU prisoners’ opportunities for
communications to the greatest extent practicable. In no way would increased
communications conflict with the goal of the proposed rule – achieving “total
monitoring” of the communications of designated inmates.18 Monitoring a greater
number of communications could require more staff time and require BOP to hire
additional officers, but the investment would be well worth it, given that preventing
communication increases recidivism and prison disorder, while harming inmates and
their families.
Recommendation # 3:

Authorize Contact Visits Between CMU Inmates
and Family Members, Consistent with BOP Policies
that Apply to Most Inmates, Unless Specific
Evidence Shows A Risk that Inmates Will Abuse
Contact Visits

The proposed rule would permit only non-contact visits – visits that occur
across telephones and through a sheet of glass.19 This provision would prevent
15

BOP Program Statement 5264.08, at 9.

16

Institution Supplement THX-5267.08C § V.E.

17

See generally BOP Program Statement 5265.11.

18

75 Fed. Reg. at 17328.

19

Proposed § 540.205(a).
8

inmates from hugging, kissing, or even shaking hands with family members and
friends during their entire period of incarceration in a CMU. The final rule should
authorize contact visits, in keeping with general BOP policy, except when specific
evidence shows a risk that inmates will abuse such visits. Under BOP policy, most
inmates are allowed to sit in the same room as their visitors, and “[i]n most cases,
handshakes, hugs, and kisses (in good taste) are allowed at the beginning and end of a
visit.”20
We acknowledge the force of arguments that unmonitored contact visits could
jeopardize security by allowing weapons, narcotics, and other dangerous contraband
to enter prisons. Monitored contact visits, however, do not pose the same risk and
should be permitted, except for the most dangerous inmates, and the proposed rule
already requires monitoring of all visits.21 While the appropriateness of strip searches
after contact visits is beyond the scope of these comments, both institutions that have
CMUs routinely conduct strip searches of general population inmates after contact
visits.22 Except in the case of the most dangerous inmates, monitored contact visits
followed by strip searches all but eliminate the risk posed by contact visits.
Recommendation # 4:

Allow Inmates To Challenge Initial
Designation Through Meaningful Hearings

CMU

The proposed rule would deny inmates a meaningful opportunity to challenge
CMU designation. In modifying the rule, BOP should look to one of its own models
– the regulations governing placement in control units, which house inmates thought
to pose a threat to prison order.23 Current BOP regulations grant meaningful
procedures to inmates placed in control units, and the Bureau should extend similar
processes to CMU prisoners.
Under BOP regulations, an inmate has the right to the following procedures
before placement in a control unit:

20

See Visiting Room Procedures:
General
www.bop.gov/in-mate_locator/procedures.jsp.

21

Information,

available

at

Proposed 28 C.F.R. § 540.205(a)(1).

22

Institution Supplement THX-5267.08C, § VI.F (“All inmates at the USP and FCI
will be strip searched before going into the Visiting Room and when coming out.”);
Institution Supplement MAR-5267.08C, § 18B (“USP inmates will be … visually
search[ed] when exiting the visiting room.”); 28 C.F.R. 552.11(c) (defining a “visual
search” as “a visual inspection of all body surfaces and body cavities”). And the
Supreme Court has upheld BOP’s policy of strip searching inmates, without requiring
any level of suspicion, after such visits. Bell v. Wolfish, 441 U.S. 520, 558-560
(1979).
23

28 C.F.R. § 541.40(a).

9

•

A live hearing.24

•

Twenty-four hour advance notice of the charges and the acts or
evidence in issue.25

•

Representation by a staff member at the hearing. The staff member has
the right to interview witnesses prior to the hearing.26

•

The right to call witnesses and present documentary evidence at the
hearing.27

•

A written decision issued by the hearing administrator.28

•

The right to appeal the hearing administrator’s decision to an executive
panel.29

These procedures for control units stand in stark contrast to the limited
process contemplated before CMU placement. Under the proposed rule, the Assistant
Director for the Correctional Programs Division approves CMU designations without
giving inmates any input into the decision.30 BOP then transports the inmate
hundreds if not thousands of miles, prepares a CMU cell, and begins integrating the
inmate into the new environment – all before giving the inmate the chance to
challenge CMU designation.31 In practice, allowing challenges to occur only after a
CMU placement will make CMU designation a fait accompli, creating strong
incentives not to send inmates back to the less restrictive facilities from which they
came.
Even after arrival, an inmate can challenge CMU placement only through
BOP’s administrative remedy program,32 a purely written process that bears no
resemblance to the control unit procedures. An inmate has no right to a live hearing,
no right to call witnesses, and no right to representation by a staff member. Rather,
24

28 C.F.R. § 541.43(b).

25

28 C.F.R. § 541.43(b).

26

28 C.F.R. § 541.43(b)(2).

27

28 C.F.R. § 541.43(b)(4).

28

28 C.F.R. § 541.44(a).

29

28 C.F.R. § 541.45.

30

Proposed 28 C.F.R. § 541.202(b).

31

Proposed 28 C.F.R. § 540.202(c) (“Upon arrival at the designated CMU, inmates
will receive written notice from the facility’s Warden…”) (emphasis added).
32

Proposed 28 C.F.R. § 540.202(c)(6).

10

the inmate is limited to completing a grievance form challenging CMU placement,
and further forms necessary to appeal any unfavorable initial decision to regional
directors and, ultimately, BOP’s Office of General Counsel.33 To our knowledge,
these bare bones procedures (which BOP began applying to CMUs several years
before opening the current notice and comment process) have never resulted in a
reversal of CMU placement.
Nor is that surprising. Not only does review occur after inmates arrive at the
CMUs, but most of the decisionmakers in the administrative remedy process are
subordinate to the Assistant Director for the Correctional Programs Division, who
approves the designation in the first place. Surely wardens and regional directors will
not, in practice, overrule a decision by one of BOP’s highest-ranking officials. For
CMU prisoners, this renders the first two steps of the administrative remedy process
meaningless. Nor is it clear that even the final authority in the administrative remedy
process – BOP’s General Counsel – has the power to overrule the Assistant Director.
The thin procedures contemplated by the proposed rule will land inmates in
CMUs whose presence there is unjustified, and leave them with no meaningful way to
challenge their designation. The lack of procedures may also reinforce in inmates a
sense that they are being treated unfairly, making such inmates more difficult for
correctional officers to manage.
BOP should revise the rule to allow CMU placement only after an inmate has
a live hearing before an official with clear decisionmaking authority. We recommend
that the Bureau, in revising the rule, look to its own procedures for control unit
placement.
Recommendation # 5:

Establish Clear Mechanisms for Challenges to
Ongoing CMU Placement

BOP’s obligation to avoid housing inmates in CMUs without sound reason
continues after the initial placement. An inmate may reach a point where a less
restrictive unit becomes appropriate, and BOP must ensure that mechanisms for
ongoing review allow transfer to occur at that stage. Creating a real possibility for
transfer to a less restrictive unit also gives inmates an incentive to improve their
behavior.
The proposed rule, however, relies on an informal process that fails to provide
for clear transfer authority. In refining the rule, BOP should allow CMU inmates to
challenge ongoing CMU designation by periodically making their case to officials
with the power to order a transfer.
Under the proposed rule, review must occur “regularly” and follow the
“Bureau’s policy on Classification and Program Review of Inmates,” which refers to
33

28 C.F.R. §§ 542.14 & 542.15.

11

BOP Program Statement 5322.12. Not only does the proposed rule fail to define the
term “regularly,” but it involves only officials at the institution level, such as the unit
manager, case manager, and correctional counselor, in the classification review
process.34 The proposed rule fails to specify when – if ever – such officials can
override the original placement decision by the Assistant Director for the Correctional
Programs Division. In practice, we suspect that institution-level officials generally
will not attempt to reverse decisions by the Assistant Director.
The final rule should contain clear mechanisms for ongoing review of CMU
placement and provide unambiguous authority to transfer inmates out of CMUs.
Consistent with the control unit regulations, the final rule should require review every
30 days.35
****
Thank you for your consideration of these comments. We would welcome the
opportunity to speak with you, and we hope you will contact us, through the Brennan
Center, to arrange a time to discuss these matters further.
Sincerely,

David M. Shapiro
Counsel, Liberty and National Security Project
Raul J. Banasco
Steve J. Martin
Ron McAndrew

34

BOP Program Statement 5322.12.

35

28 C.F.R. § 541.49(a).

12