U.S. Department of Justice
National Institute of Corrections

Supermax Prisons

U.S. Department of Justice
National Institute of Corrections
320 First Street, NW
Washington, DC 20534

Morris L. Thigpen
Director
Larry Solomon
Deputy Director
George M. Keiser
Chief, Community Corrections/Prisons Division
Randy Corcoran
Project Manager

National Institute of Corrections
World Wide Web Site
http://www.nicic.org

Supermax Prisons
and the Constitution
Liability Concerns in the
Extended Control Unit
William C. Collins, Esq.
Attorney at Law

November 2004
NIC Accession Number 019835

This report was funded by the National Institute of Corrections (NIC) under technical assistance number
2004P1089. Points of view or opinions stated in this document are those of the author and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

To the vision and memory of Susan Hunter.

Abstract

v

Abstract

E

xtended control units (ECUs), or “supermax” prisons, house a prison system’s
most dangerous inmates. Because of the
restrictions that go with the extraordinarily high
level of security such inmates require, these facilities sometimes function at the limits of what is
constitutionally acceptable and are, therefore, frequent targets of inmate litigation. This monograph

is intended to help prisons operate ultra-highsecurity facilities in a way that minimizes liability
in litigation. The monograph covers the background of supermax prisons and related litigation,
and it takes a close look at case law, prison policies and practices, and “lessons learned” in
operational areas that give rise to litigation.

Contents

vii

Contents

Abstract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter 1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defining the Supermax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Living on the Constitutional Edge: A Review of Case Law . . . . . . . . . . . . . . . . . . . .8
Early Litigation About Long-Term Segregated Housing . . . . . . . . . . . . . . . . . . . .8
Litigation About ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Chapter 2. Mental Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Providing Medical Care in Prisons: Guidance From the Courts . . . . . . . . . . . . . . .13
What Is a “Serious Medical Need”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
What Is “Deliberate Indifference”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mental Health Issues in the ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SHU Syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Who Should Not Go to the ECU? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ECU Mental Health Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

viii
Transferring Inmates for Mental Health Treatment . . . . . . . . . . . . . . . . . . . . . . . 23
Involuntary Medication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Chapter 3. Medical Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Confidentiality Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Service Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Role of the Custody Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Health Insurance Portability and Accountability Act (HIPAA) . . . . . . . . . . . . . . . . . . 30
Permission To Share Medical Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Access to Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Implications for ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chapter 4. Other Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
How Courts Analyze Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Objective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Subjective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
No “Totality of Conditions” Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Basic Human Needs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Personal Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Food and Clothing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Sanitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Chapter 5. Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Excessive Force: Some Contributing Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Use of Force: The Legal Test and Its Application in Madrid . . . . . . . . . . . . . . . . . . 42
Avoiding Use of Excessive Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Tools for Control, Oversight, and Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Videotaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Post-Incident Medical Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Chapter 6. The 14th Amendment: Due Process and Placement . . . . . . . . . . . . . . .47
Operational Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Due Process, Segregation, and ECU Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
What Process Might Be Due? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

The Traditional View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
A Contrary View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Due Process and the Quality of Placement Decisions . . . . . . . . . . . . . . . . . . . . . . . 54
Meaningful Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Calling Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Thorough Investigation: The Key to Fair Decisions . . . . . . . . . . . . . . . . . . . . . . . . 57
Evidentiary Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Quality of Information: The Institution’s Responsibility . . . . . . . . . . . . . . . . . . . . .60
Workload Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Periodic Reviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Gang Membership as Grounds for ECU Placement and Retention . . . . . . . . . . . . . 61
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Chapter 7. Access to the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
Supreme Court Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
The Institution’s Obligations Under Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Limits on the Scope of Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
“Actual-Injury” Requirement for Access Litigation . . . . . . . . . . . . . . . . . . . . . . .67
Experimenting With Alternative Legal Resource Programs . . . . . . . . . . . . . . . . .68
Paging Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Inmates Who Are Unable To Use Legal Materials . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Chapter 8. The First Amendment: Religion, Speech, and the Press . . . . . . . . . . .71
Supreme Court Test for Evaluating First Amendment Restrictions . . . . . . . . . . . . . 71
The Religious Land Use and Institutionalized Persons Act . . . . . . . . . . . . . . . . . . . 73
Inmate Religious Practices Not Mandated by Faith . . . . . . . . . . . . . . . . . . . . . . . . . 73
Sincerity of Beliefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Closing Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Contents

ix

Foreword

xi

Foreword

Controlling the most dangerous, recalcitrant,
aggressive, and antagonistic inmates in a prison
system is one of the greatest challenges men and
women working in corrections face. These inmates require the highest levels of security and
control a prison system can muster. Yet, they
remain subject to the protections of the
Constitution.
In years past, these inmates were locked in “segregation” or “administrative segregation” or, in the
jargon of the Yard, “the hole.” These units sometimes were filthy, rundown, hellholes where brutality was common. Such conditions and practices
made the units ripe for court intervention, which
often occurred.
The “seg unit” that might have housed inmates
classified as threats to the security of the institution next to other inmates serving disciplinary
sanctions has, in many states, given way to a
much more sophisticated type of facility: the
extended control unit (ECU), a.k.a. the “supermax.” Still devoted to housing the most dangerous
offenders, the ECU bears little physical resemblance to the “seg unit” of the past. It may be new,

clean, and brightly lit, with varying levels of
structured programming intended to give the
inmates a means of demonstrating they can be
moved back to the general prison population.
Nevertheless, the ECU remains a source of potentially serious litigation. The very strict controls
and sterile living conditions that are inherent in
the ECU concept give the administrator little constitutional margin of error.
This monograph highlights the major legal concerns associated with the ECU and offers some
suggestions for addressing them. The intent of
this monograph is to help “supermax” prisons
operate in a way that minimizes liability in
inmate litigation. However, it does not nor can it
substitute for legal advice from an agency’s counsel who is familiar with both the prevailing law in
a jurisdiction and the specific circumstances of
the agency’s ECU that are critical to proper application of basic legal principles.
Morris L. Thigpen, Director
National Institute of Corrections
November 2004

Acknowledgments

xiii

Acknowledgments

For various reasons, completing this monograph
has not been an easy task. Several people deserve
credit and thanks for carrying it through to completion. Chase Riveland began the effort when he
asked me to contribute a legal issues chapter to
his NIC monograph, Supermax Prisons: Overview
and General Considerations (NIC, 1999). The
late Susan Hunter’s vision saw the need for the
expanded product that you now hold.
The project stumbled along the way, but Randy
Corcoran at NIC invited me to pick it up again
and supported the effort through to completion.

My editor, Lynn Marble, struggled to rearrange
my garbled legalese into something more organized and readable.
While all of these people helped get the project
through from beginning to end, any substantive
errors in this work, any misstatements, any
inaccurate legal analysis, remain entirely my
responsibility.
Bill Collins
November 2004

Executive Summary

xv

Executive Summary

Introduction
Extended control units (ECUs) house a prison
system’s most dangerous inmates. The extraordinarily high level of security in ECUs—and the
restrictions that go with that security—mean that
these facilities sometimes function at the limits of
what is constitutionally acceptable. It is not surprising, therefore, that ECUs are the target of
inmate litigation.
The purpose of this monograph is to help prisons
operate ultra-high-security facilities in a way that
minimizes liability in inmate litigation. The
monograph covers the background of supermax
prisons and related litigation, and it takes a close
look at case law, prison policies and practices,
and “lessons learned” in operational areas that
give rise to litigation: mental health, delivery of
medical services, other conditions of confinement, use of force, due process, access to the
courts, and religious practices.

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

xvi
Chapter 1. Background

Chapter 2. Mental Health

Although known by various names, ECUs all perform essentially the same function: providing
long-term segregated housing for inmates who
pose the highest security risk. Placement in an
ECU results from a classification decision, not a
disciplinary violation, and that placement usually
is for an extended period. Not all ECUs are the
same, and conditions within an ECU may depend
on an inmate’s status in a level program for earning return to less restrictive housing. At the
strictest level, ECU inmates typically live in neartotal isolation and idleness. Because ECU conditions are extremely restrictive, these facilities
operate on the edge of constitutionality and are,
therefore, vulnerable to inmate lawsuits.

The prison’s constitutional obligation (under the
Eighth Amendment) to provide medical care—
i.e., not to be deliberately indifferent to the serious medical needs of inmates—underlies the
unique mental health-related issues confronting
ECUs. At the heart of these issues is a basic
dilemma: the level of security and control
required to manage the behaviors that bring
inmates to the ECU may be harmful to the mental
condition of some inmates and, therefore, in violation of their constitutional rights.

ECUs resemble traditional long-term administrative segregation units, which have been the subject of inmate litigation since the 1960s. ECUspecific case law to date is limited. The first
case to capture national attention, Madrid v.
Gomez, was a wide-ranging attack on operations
at the Pelican Bay Special Housing Unit in
California. In a 138-page opinion rendered in
1995, the trial judge in Madrid upheld the fundamental concept of the high-security unit but cataloged numerous constitutional violations and
operational problems.
Case law trends suggest that mental health issues
will pose the greatest legal challenges to ECUs.
Other, more traditional issues include medical care,
operational matters such as use of force and due
process, and various conditions of confinement.

Debate continues about the nature of “SHU
[special housing unit] syndrome” and the extent
to which conditions of isolation in the ECU may
contribute to deterioration of inmates’ mental
health. However, there appears to be general
agreement that ECUs are, to some extent, hazardous to the mental health of inmates with certain types of mental conditions. Some of these
inmates should not be placed in an ECU at all,
and others may require very careful monitoring in
the ECU and may have to be removed from the
ECU should their mental condition deteriorate.
This concern suggests several preventive steps:
■

Screening criteria. Develop criteria to screen
out some inmates from admission to the ECU
altogether.

■

Screening process. Develop a process for
effectively applying these screening criteria.

■

Monitoring. Implement a process for constantly monitoring the mental status of ECU
inmates and criteria for determining when
transfer out of the unit is warranted.

Removal. Implement a process for transferring inmates out of the ECU if they meet the
monitoring system’s criteria for removal.

■

Quality assurance. Consider developing a
quality assurance system or audit process as
a strategy for addressing legal challenges to
screening and monitoring procedures.

■

Mental health care. Provide ongoing diagnosis and treatment for mental health conditions. This is the “standard” level of service
expected in any prison, and clearly a requirement in the ECU.

■

Staffing. Maintain staffing levels in accordance with the services to be provided.
Operating an ECU mental health program
short-handed is an invitation to litigation and
court intervention.

■

Medication. Be aware of legal constraints
concerning involuntary medication, and have
procedures in place for medicating inmates
whose serious mental illness presents a threat
to themselves and others.

Chapter 3. Medical Services
Providing medical care to ECU inmates involves
operational challenges and legal concerns,
although the constitutional issues are not as great
as those associated with mental health. Staffing
requirements for delivering medical services are
likely to be greater in the ECU than in other units.
Confidentiality of medical information is an issue
in the ECU, especially when services are delivered at the cell front. ECUs need enough custody
officers to avoid delays when inmates must be

escorted out of the unit to receive medical care.
ECUs should also be aware of the custody officer’s role in the medical care delivery system and
take steps to avoid inmate complaints related to
that role. Finally, corrections agencies should
determine how privacy regulations under the
Health Insurance Portability and Accountability
Act (HIPAA) may affect their ECU operations.

Chapter 4. Other Conditions
of Confinement
With regard to certain conditions of confinement
(personal safety, food and clothing, shelter, sanitation, and exercise), issues in ECUs differ from
issues in general population settings only as a
matter of degree. The basic legal test is the same:
do the conditions harm the inmate or present a
serious risk of substantial harm, and are officials
deliberately indifferent to that risk. The ECU’s
very strict environment may increase the risk of
harm to some inmates (especially the mentally ill)
or for some conditions (e.g., exercise).
Intensity and duration of exposure may make
defense of allegedly poor conditions more difficult in ECUs than in general prison settings. In
general settings, the effects of poor conditions in
cells may be mitigated if inmates are out of their
cells most of the day to participate in programs,
jobs, and other activities. The inmates may be
exposed to the poor conditions only a few hours
per day. But ECU inmates rarely leave their cells
and never leave the unit; if poor conditions exist,
the inmates’ exposure is constant. Whereas lack
of exercise is rarely an issue for inmates in the
general population, it is, to some extent, a fact of
life for ECU inmates.

Executive Summary

xvii
■

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

xviii
As noted in the Madrid case, conditions in modern ECUs, which remove so much of inmates’
opportunity for human contact, “may press the
outer bounds of what most humans can psychologically tolerate” and sometimes exceed those
bounds for some inmates. This observation, and
its implications for the conditions discussed in
chapter 4, should be acknowledged by officials in
planning and operating ECUs.

Chapter 5. Use of Force
Use-of-force issues are bound to arise in facilities
that house the most violent inmates in a prison
system. Reliably detecting improper use of force
and responding effectively when it occurs may be
the greatest legal and management challenges in
properly operating an ECU. If management lets
use of force get out of hand, the consequences—
patterns of abuse and a code of silence among
staff—are difficult to correct.
Proactive management steps are required to
ensure that ECUs avoid use of excessive force
and meet the legal test courts use in evaluating
force incidents. An institution should be able to
defend its uses of force if it lays a proper foundation through policies, training, supervision, and
documentation. Staff involved in force incidents
must write accurate reports of what happened.
Videotapes and post-incident medical examinations are also useful. Thorough documentation
has management as well as evidentiary uses. If
use of force is not properly controlled and a pattern of misuse develops—along with a code of
silence among staff about incidents of abuse—
management has failed.

Chapter 6. The 14th
Amendment: Due Process
and Placement
Courts are uncertain as to whether placement in
long-term confinement under the very restrictive
conditions associated with the typical ECU
imposes an atypical deprivation on an inmate and
therefore requires due process protections. Until
the courts speak more clearly on whether and
what kind of due process is required in placement
decisions, corrections agencies would be prudent
to provide basic procedural protections that are
likely to meet a court’s requirements. Such protections also serve prison officials’ own interests
in having an effective placement decisionmaking
process. These protections include the following:
■

Notify the inmate of the proposed placement.
In the notice, explain the reason for the
placement.

■

Give the inmate an opportunity to respond
to the notice in an informal, nonadversarial
meeting with officials.

■

Base placement decisions on reliably determined facts. In the nonadversarial context of
the placement decision, “reliably determined”
focuses more on the institution’s investigatory
process than on resolution of factual disputes
at the meeting with the inmate.

■

Determine the reliability of informants and
the information they provide.

■

Conduct periodic reviews to determine the
need for continued segregation. Give the
inmate an opportunity to provide input for
retention decisions.

If a corrections agency has such procedures in
place, it has two choices in responding to lawsuits
that claim deprivation of due process in segregation placement and retention decisions. It can
argue, under the Supreme Court’s 1995 decision
in Sandin v. Conner, that no due process protections apply. Or it can point to its procedures as
proof that protections were provided. Even if the
courts finally agree that no due process requirements apply to these decisions, prisons will benefit from having a systematic, fair, fact-based
decisionmaking process.

Chapter 7. Access to the
Courts
ECU inmates have the same fundamental right
of access to the courts as other inmates. ECU
inmates tend to be very litigious, and institutions
should expect them to challenge any program that
does not provide full access to a complete law
library or extensive assistance from persons
trained in the law. However, under the Supreme
Court’s 1996 decision in Lewis v. Casey, inmates
must demonstrate actual injury before they can
have standing to raise an access-to-courts claim.
The prison’s affirmative duty is to provide some
level and form of resources to support, in a meaningful way, inmates’ right of access to the courts.
Traditional paging systems (through which
inmates request materials to be delivered to
them), once generally found inadequate by the
courts, may pass muster under Lewis if the institution can demonstrate that the system works
properly. However, any library-based system does
not meet the needs of inmates who cannot read
English; these inmates require some form of legal
advice.

In Lewis, the Supreme Court invites prison administrators to experiment with how they fulfill
their duty to provide meaningful legal resources.
Such experiments might include systems that use
CD–ROM or Internet technology. Any system a
prison uses to provide legal resources in the ECU
is sure to be challenged at some point.

Chapter 8. The First
Amendment: Religion,
Speech, and the Press
The restrictive environment of the ECU can raise
First Amendment issues. In considering inmates’
demands regarding religious and other types of
activities, corrections officials should be aware of
how the courts may review their response.
In the 1987 Turner v. Safely case, the Supreme
Court defined a four-part test for evaluating
whether a particular First Amendment restriction
is justified. Institutions have not found it difficult
to meet this test, which basically requires a reasonable connection between a restriction (e.g., not
allowing ECU inmates to attend group religious
services) and a legitimate penological interest
(e.g., security). In 2000, Congress passed the
Religious Land Use and Institutionalized Persons
Act, which imposes a more stringent test with
regard to restrictions on inmate religious practices: to justify such a restriction, an institution
must show why a less restrictive alternative was
not possible. In general, an institution’s defense
of a challenged restriction should not rely solely
on an argument that a particular practice is not
mandated by the inmate’s faith or that the
inmate’s religious beliefs are not sincerely held.

Executive Summary

xix

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

xx
Closing Thoughts
The concept of the ECU—the “supermax
prison”—is now embedded in American corrections. A major challenge for agencies that operate
these facilities lies in recognizing just how many
legal issues can arise and supervising operations
accordingly.
The most significant issues concern inmates who
are mentally ill (or whose behavior suggests they
may be mentally ill). Should some inmates never
be placed in an ECU? Does living in an ECU
actually harm the mental status of some inmates?
Where does a prison system place inmates who
present a significant security risk but cannot live
in an ECU?
Even setting these issues aside, ECUs may be the
most difficult type of prison to operate, in that the
inmates they house and the management strategies used to control them give rise to a prison system’s most concentrated, intense legal concerns.
Services that are especially critical from a legal
perspective—e.g., health care and access to the
courts—are difficult to deliver in ECUs, and use
of force is an ever-present issue.

The keys to avoiding legal pitfalls and reducing
liability exposure are the same in the ECU as anywhere else in the prison system:
■

An informed assessment of the needs and
characteristics of the target population.

■

A clearly defined mission and a comprehensive plan of operation.

■

Careful development of policies and procedures, with a close eye to legal issues.

■

Funding and staffing commensurate with the
identified needs and mission.

■

Training to promote a skillful and knowledgeable workforce.

■

Perhaps most importantly: commitment on
the part of supervisors and managers to
ensuring humane and legal operations.

If these factors are ignored, the end result may
well be intervention by the courts.

Introduction

1

Introduction

“Supermax” prisons—fad, trend, or
wise investment?

T

hus began Chase Riveland’s earlier
monograph on prisons intended to house
inmates who pose a prison system’s highest security risks.1
To those words, one can add “source of litigation
and controversy.”
Long before the name “supermax” was coined,
prison systems maintained long-term, high-security
segregation units to house inmates unsuitable for
general population settings. Conditions and practices in those units have been the subject of
litigation and occasionally substantial court
involvement since the earliest days of the “inmate
rights” movement in the late 1960s. Conditions
have changed a great deal since these early cases
were litigated. However, modern supermax prisons sometimes function at the limits of what is
constitutionally acceptable.
1
Chase Riveland, Supermax Prisons: Overview and
General Considerations, Washington, DC: U.S. Department of Justice, National Institute of Corrections,
1999.

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

2
Although operating models for supermax prisons
vary, the extraordinarily high level of security
required—and the restrictions that go with that
security—mean that, even under the best of circumstances, these facilities operate very close to
the edge of what the Constitution allows. Many
inmates housed in supermax prisons have a
volatile and dangerous nature, making violent
confrontations with staff a common threat. Human
rights organizations have been quick to criticize the
very concept of the supermax prison.2 Given these
circumstances, it is not surprising that modern
supermax prisons are the target of litigation,
sometimes brought by one inmate over a single
incident, sometimes brought by a class of inmates.
At the time of Riveland’s monograph, only one
major supermax case had been litigated to a conclusion. Another had been settled. As these words
are written in 2004, still only a handful of major
cases have been concluded, and the courts of
appeal have provided virtually no direct guidance.
However, it is apparent that the major issue
emerging in supermax litigation relates to mental
health: Are there categories of inmates who,
because of their mental condition, cannot be
housed in the supermax environment? Are conditions so restrictive and debilitating that they cause
serious mental health problems for some inmates
and necessitate removal from the supermax
environment?
Two district court decisions discussed in the
following pages have accepted both of these
premises. The decisions impose screening requirements to prevent some inmates from being
transferred to an ultra-high-security setting and
monitoring requirements to allow for removal of

inmates whose mental state may deteriorate while
they are in such a setting. Neither of these decisions has been reviewed by a court of appeals.
These holdings raise an obvious question: If some
inmates who require housing at the highest level
of security cannot be placed or retained in the
typical supermax environment, what sort of setting
can accommodate both the safety and security
risks these inmates present and their serious
mental health needs. The California Department
of Corrections, currently under a “screening/
monitoring” order because of litigation at the
Pelican Bay Special Housing Unit (SHU), responded by creating psychiatric security units in
its prison system.
Mental health issues aside, the volatile nature of
supermax inmates and the very restrictive conditions of supermax facilities can lead to a variety
of more “traditional” legal issues such as those
related to delivery of basic medical care and use
of force. Avoiding liability when these issues give
rise to litigation requires a combination of carefully developed policies, adequate funding, and close,
strong supervision of facility operations.
The purpose of this monograph is to help prisons
operate ultra-high-security facilities in a way that
minimizes liability in inmate litigation. The first
chapter provides background information on
supermax prisons and the history of litigation
concerning them. Subsequent chapters take a
close look at case law, prison policies and practices, and “lessons learned” in seven operational
areas that raise constitutional issues for supermax
facilities:

2
Roy D. King, “The Rise and Rise of Supermax: An American Solution in Search of a Problem,” Punishment and
Society 1(2):163–184, 1999.

Mental health.

■

Use of force.

■

Delivery of medical services.

■

Due process in placement/retention decisions.

■

Other conditions of confinement (personal
safety, food and clothing, shelter, sanitation,
and exercise).

■

Inmate access to the courts.

■

Religious practices.

Introduction

3
■

1

Background

T

his chapter first outlines the defining
characteristics of supermax facilities. It
then traces the history of litigation involving long-term segregation of inmates generally
and segregation in supermax facilities specifically.

Defining the Supermax
What is a “supermax” prison? Riveland refers to
the term as the “generic descriptor” for a relatively new type of maximum-security prison that is
often freestanding.3 The media, the public, and
some corrections departments often use “supermax,” but these facilities are also known as special housing units (SHUs), special management
units (SMUs), intensive management units
(IMUs), or “maxi-maxis.” This monograph generally uses “extended control units” (ECUs), the
name chosen by Riveland.

Regardless of what they are called, these units
have basically the same function: to provide longterm, segregated housing for inmates classified
as the highest security risks in a state’s prison
Riveland, Supermax Prisons: Overview and General
Considerations, p. 5.

3

5
Background

C H A P T E R

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

6
system. The phrase “worst of the worst” has been
used to characterize the ECU population.

overclassifying inmates into very expensive
prison beds.

In many respects, the ECU resembles the traditional long-term administrative segregation unit,
which typically remains in a prison system when
an ECU is introduced. The ECU takes the most
challenging inmates from the administrative segregation unit. It is, in a sense, a “super” administrative segregation unit.

All ECUs are not the same, and conditions for
individual inmates within an ECU may depend on
the inmate’s level of progress toward removal
from the unit. Some common characteristics of
ECUs at the strictest levels include the following:
■

Inmates are locked up 22 to 23 hours per day.

Placement of an inmate in an ECU generally
results from a classification decision, not a disciplinary violation. The assumption underlying an
ECU placement is that it will be for a relatively
long time. Even in ECUs that include a program
of levels or steps by which inmates can earn their
way back to less restrictive housing, progress
through most of the levels takes several months or
longer. An inmate placed in an ECU is likely to
remain there for at least 12–24 months, if not
longer.

■

Inmates have very limited contact with other
people—staff or other inmates.

■

Exercise is limited to no more than 1 hour a
day, 5 days a week.

■

As few as three showers per week are
allowed.

■

Commissary, visiting, telephone, and library
privileges are much more limited than those
available to the general prison population.

ECUs are intended to hold inmates who require
the highest level of security, but the percentage of
inmates who fit this category varies widely from
state to state. A survey conducted by the National
Institute of Corrections in 1996 found that 28
states and the Federal Bureau of Prisons had or
were developing “supermax” housing as defined
by the survey.4 Of these 29 systems, 11 indicated
that 1 percent or less of all inmates were in the
supermax category, 7 indicated 5–8 percent, and 1
state said that 20 percent of its inmates required
supermax housing. The survey findings raise the
question of whether some jurisdictions may be

■

Inmates have little or no access to work, religious activity, rehabilitation, or other programs or activities to occupy time. Almost
complete idleness is the norm. Any available
programs or services are usually offered in
the cell or at the cell front. Some facilities
now offer limited programming via closed
circuit TV.

■

When inmates leave their cells, they are in
restraints and usually are escorted by more
than one officer. If an escort is unavailable,
the out-of-cell opportunity may be lost.

“. . . a free-standing facility or a distinct unit within a facility that provides for the management and secure control of
inmates who have been officially designated as exhibiting violent or serious and disruptive behavior while incarcerated.
Such inmates have been determined to be a threat to safety and security in traditional high-security facilities, and their
behavior can be controlled only by separation, restricted movement, and limited direct access to staff and other inmates.”
National Institute of Corrections (NIC), Supermax Housing: A Survey of Current Practice, Washington, DC: U.S.
Department of Justice, NIC, 1997, p. 1.
4

■

No TVs or radios are allowed.

■

Strip searches are common.

In facilities with a level system, some restrictions
may ease as an inmate progresses through the levels. Out-of-cell activities increase, and the inmate
gains privileges. However, the inmate may not
have to step far out of line to be returned to a
lower level, and it typically takes a long time to
move back up through the system’s levels.

In some ECUs, the cells have no windows. If the
cell also has a solid front door, the inmate has little or no exposure to natural light. Some lighting
in the cell may remain on all night. Any outdoor
exercise usually takes place in a high-walled box
with only the top open to the sky or in small
chain-link enclosures sometimes referred to as
“dog runs.” Inmates typically exercise alone, or
perhaps with one other inmate.

Limitations on staff-inmate contact in ECUs vary
from facility to facility, even for inmates at the
most restrictive level. Some ECUs essentially isolate inmates (see sidebar, “Life at Pelican Bay”).
Other ECUs, while keeping inmates locked in
their cells most of the time, may encourage
greater cell-front contact between staff and
inmates.5 As the discussion in chapter 2 demonstrates, the frequency and nature of staff contact
may be an important consideration in evaluating
the effect of ECU conditions on inmates’ mental
health.

Some ECUs now offer group therapy or discussion sessions. Each participant is placed in an
individual holding unit (like a large telephone
booth). The participants can talk directly to the
group leader and each other without having physical access to anyone in the group.

Life at Pelican Bay
elican Bay State Prison opened in 1989 to

booth. The defendants’ expert testified that the

house California’s most serious criminal

SHU “attempted to reduce physical contact

offenders. In a major case involving Pelican

between inmates and staff to the extent possi-

P

Bay’s SHU, the judge wrote about the extent of

ble . . . . ”b Another expert witness, a former fed-

social isolation.a Inmates lived in single cells. Their

eral warden, described the conditions as “virtual

cells had no windows, although skylights afforded

total deprivation, including, insofar as possible,

some natural light. The interior was designed to

deprivation of human contact.”c

reduce visual stimulation. Inmates exercised alone.

a Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

Doors to the exercise area opened electronically,

b Id. at 1229.

and inmates stripped naked in front of a control

c Id. at 1230.

5

NIC, Supermax Housing: A Survey of Current Practice, p. 4.

Background

7
■ The opportunity to earn good time for work,
program participation, or behavior is limited
or eliminated.

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

8
Living on the
Constitutional
Edge: A Review
of Case Law

Regardless of the
name given to
long-term
segregation units,
inmates placed in
these units will
challenge the living
conditions and the
limitations on
rights and
privileges.

The fact that an ECU’s extremely restrictive conditions
place it at the very edge of
what is constitutionally permissible suggests that, with
properly developed policies
and procedures, it can function
in a constitutionally acceptable
fashion. However, if courts
continue recent trends, today’s
ECU may inherently step over the constitutional
edge with regard to mental health issues for some
inmates.
Early Litigation About Long-Term
Segregated Housing
Before supermax prisons or extended control
units were “invented,” long-term administrative
segregation units housed inmates who could not
live safely in less restrictive settings. Conditions
and practices in these units were the subject of
some of the earliest “inmate rights” litigation.

One of the first examples of court intervention in
prison operations came more than 35 years ago in
a California federal district court. The 1966 case
of Jordan v. Fitzharris arose from an inmate’s
confinement in a punitive segregation “strip cell”

in California’s Soledad Prison.6
The court summarized the conditions as being “of a shocking
and debased nature [that
required court intervention] to
restore the primal rules of a
civilized community….”7 In
this case, officials conceded
that they disliked confining
inmates in the conditions the
court found shocking but did
not know what else to do with
inmates like the plaintiff.

Inmate litigation related to
administrative segregation units continued in the
1970s and 1980s. During this period, the courts
addressed issues such as religious observance,
due process requirements, mental health services,
and conditions of confinement.8 During the 1990s,
as state prison systems began to introduce ECUs,
evolving case law regarding inmate rights may
have changed the legal tests that courts apply in
evaluating prison conditions or practices.9
Regardless of the name given to long-term segregation units, inmates placed in these units will
challenge the living conditions and the limitations
on rights and privileges. As the following review
of ECU-specific litigation shows, the courts will
intervene when they find violations of inmates’
rights.

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).
Id. at 679.
8
See Giampetruzzi v. Malcom, 406 F. Supp. 836 (S.D.N.Y. 1975), requiring that inmates be allowed to hold weekly religious services; Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976), dealing with due process requirements for placement; Nelson v. Collins, 455 F. Supp. 727 (M.D. Md. 1978), relating to mental health services; Toussaint v. McCarthy,
801 F.2d 1080 (9th Cir. 1986), dealing with due process requirements for placement and periodic review and limiting the
prison master’s role in overseeing placement decisions; and Davenport v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987),
ordering that inmates be allowed three showers per week and 5 hours of exercise per week.
9
See Wilson v. Seiter, 501 U.S. 294 (1991), ending the “totality of conditions” approach to analyzing conditions of confinement; and Sandin v. Conner, 515 U.S. 472 (1995), changing the method by which courts determine whether decisions
relating to inmates are protected by due process.
6
7

Litigation About ECUs
Reported decisions regarding conditions and practices in ECUs are few. The first case that received
national attention was the 1995 Madrid v. Gomez
decision involving the SHU at California’s Pelican Bay State Prison.10 In 2001, the Supermax
Correctional Institution (renamed the Secure
Program Facility in 2002) in Boscobel, Wisconsin, was the subject of a similar suit, Jones’El v.
Berge.11
In mid-2003, the New Mexico Department of
Corrections settled a lawsuit concerning solitary
confinement for inmates at the highest custody
levels. The inmates’ lawyers said that the settlement “removes people with mental disorders
(from solitary confinement), provides treatment
and makes solitary confinement more tolerable.”12
The settlement also relaxed some of the stricter
conditions of confinement.
Ohio litigated issues concerning its maximumcustody facility, the Ohio State Penitentiary, in a
2002 case, Austin v. Wilkinson.13 In Taifa v. Bayh,
litigation about conditions and practices in an
Indiana extended control facility that opened in
1991 resulted in a consent decree.14
Taifa and Madrid are noteworthy in that both
cases were filed within a year or so after the prisons opened, which means that the alleged problems were present in the facilities virtually from
the day they opened. After a long and bitterly
contested trial, the court in Madrid ordered relief
regarding:

Basic medical and mental health services.

■

Use of force.

■

Placement of certain groups of inmates in the
ECU.

The court refused to grant relief regarding the
procedures California used to place inmates in the
facility or to remove them from it. Although the
court held that conditions were constitutionally
intolerable for some mentally ill inmates, it rejected plaintiffs’ argument that the entire concept
of the facility was inherently unconstitutional.
In Taifa, the defendants agreed to an order that
addressed:
■

Assignment to and transfer out of the unit.

■

Expanded provisions for medical care.

■

Mandatory psychiatric examinations for all
incoming inmates.

■

Policy regarding the use of force.

The Taifa order also dealt with other issues,
including commissary privileges, access to radios
and TVs, expanded visiting and phone privileges,
additional reading materials and personal property,
less night lighting in cells, improved bedding,
increased educational opportunities, access to a
substance abuse program, and improved grievance
procedures.

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).
12
Steve Terrell, “Corrections Department Settles Prison Lawsuit,” The New Mexican, May 22, 2003.
13
Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D. Ohio 2002), affirmed in part, reversed in part, 372 F.3d 346 (6th Cir.
2004).
14
Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994). For a discussion of the litigation and the prison in question, see Cold
Storage: Super-Maximum Security Confinement in Indiana, published in 1997 by Human Rights Watch, New York, NY.
10
11

Background

9
■

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

10
Madrid was a sweeping attack on the operation of
was not appealed. (The Austin decision recently
Pelican Bay. The complaint challenged everything
was largely affirmed on appeal; see discussion in
from the fundamental concept of the ECU prison
chapter 6.) Given the general lack of appellate
to a variety of operational concerns. The scope
decisions, a definitive discussion of what courts
and seriousness of the lawsuit
may require of ECUs is a bit
are reflected in the massive
speculative. However, trial
138-page opinion the trial
court decisions to date show a
judge wrote. While upholding
trend indicative of issues likely
some aspects of the operation
to arise around ECUs, includGiven the general
of Pelican Bay, including the
ing the following:
lack of appellate
fundamental concept of the
decisions, a defini■ Whether inmates with cerunit’s high-security nature, the
tive discussion of
tain mental illnesses must
judge commented that condiwhat courts may
be excluded from ECU
tions in the facility “may press
require of ECUs is
placement.
the outer bounds of what most
a bit speculative.
humans can psychologically
■ The extent to which conditolerate . . . . ”15
tions in the ECU may cause
mental illness in some inmates,
Much of the Madrid opinion is
and the ongoing screening
a detailed catalog of what can go wrong with the
process that must exist to ensure that these
operation of this type of prison. The opinion
inmates are removed if their mental condition
chronicles errors in planning, initial staffing,
deteriorates past a certain point.
training, and supervision. It finds constitutional
violations regarding excessive force, medical and
mental health care, and conditions of confinement
for some inmates.
The Wisconsin (Jones’El) and Ohio (Austin) decisions both touch on a variety of issues, but the
Wisconsin case is particularly noteworthy because
of its focus on problems with mentally ill inmates
in ECUs—a major issue in Madrid. The Ohio
case takes a controversial stand on the levels of
due process that must be afforded inmates as part
of the ECU admission process.
None of the reported decisions and settlements
discussed above comes from a court of appeal.
All are federal district court decisions. Madrid
15

Madrid, 889 F. Supp. at 1267.

■

Adequacy of medical care.

■

Operational issues, such as the use of force,
that may be tied closely to the quality of staff
training and supervision.

■

Specific conditions in ECUs, such as cell
lighting.

Of these issues, those regarding mental health are
the most serious and are also unique to the ECU.
The mental health issues raise the fundamental
question of whether certain inmates can even be
placed in an ECU and/or held there for an extended period of time. Other issues, such as medical
care, use of force, and conditions of confinement,

are more “traditional,” in that they have long been
common subjects of inmate litigation in general.

Summary
Although known by various names, ECUs all perform essentially the same function: providing
long-term segregated housing for inmates who
pose the highest security risk. Placement in an
ECU results from a classification decision, not a
disciplinary violation, and that placement usually
is for an extended period. Not all ECUs are the
same, and conditions within an ECU may depend on an inmate’s status in a level program for
earning return to less restrictive housing. At the
strictest level, ECU inmates typically live in neartotal isolation and idleness. Because ECU conditions are extremely restrictive, these facilities
operate on the edge of constitutionality and are,
therefore, vulnerable to inmate lawsuits.

ECUs resemble traditional long-term administrative segregation units, which have been the
subject of inmate litigation since the 1960s. ECUspecific case law to date is limited. The first case
to capture national attention, Madrid v. Gomez,
was a wide-ranging attack on operations at the
Pelican Bay SHU in California. In a 138-page
opinion, the trial judge in Madrid upheld the fundamental concept of the high-security unit but
cataloged numerous constitutional violations and
operational problems.
Case law trends suggest that mental health issues
will pose the greatest legal challenges to ECUs.
Other, more traditional issues include medical
care, operational matters such as use of force, and
various conditions of confinement.

Background

11

2

Mental Health

E

ighth Amendment issues related to mental
health present unique challenges for
ECUs. It may even be constitutionally
impossible to keep certain inmates in the ECU,
and it may not be enough for institutions simply
to say “we deliver mental health care within our
four walls.”
This chapter focuses on these issues. It considers
the possibility that the ECU environment can
actually cause an inmate’s mental health to deteriorate. It also looks at mental status as a factor in
ECU placement and removal. Before turning to
these specific issues, the chapter discusses general
legal requirements for providing medical care to
prison inmates.

Providing Medical Care in
Prisons: Guidance From the
Courts
In 1976, in Estelle v. Gamble, the Supreme Court
made it clear that the prison has a constitutional
duty to provide medical care to inmates: “[O]fficials may not be deliberately indifferent to

13
Mental Health

C H A P T E R

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

14
[inmate] serious medical needs.”16 This protection
extends to ECU inmates. The duty from Estelle
applies to mental health needs of inmates, as well
as their physical health needs.17 Although there is
no unique legal test for assessing medical or mental health care in ECUs, these facilities can have
unique problems in delivering adequate care.

Thus, general factors relevant in defining serious
medical need include the following:
■

Presence of ongoing pain.

■

Diagnosis by a competent medical
professional.

■

Threat that the condition will worsen if not
treated.

■

Problem obvious to a lay person.

What Is a “Serious Medical Need”?
Courts use various definitions of “serious medical
need.” These definitions are inherently subjective,
and all are somewhat vague. Probably the clearest
test says that a need is “serious” when a doctor or
other medical professional has diagnosed a condition as “mandating treatment [or the condition is
such that] even a lay person would easily recognize the necessity of a doctor’s attention.”18
But what if a medical professional has not seen
an inmate to make a diagnosis, and the inmate’s
condition is not obvious to a lay person? The
Ninth Circuit has said a condition is serious if
failure to treat it “could result in further significant injury or the unnecessary and wanton infliction of pain.”19 The court elaborated:
the existence of an injury that a reasonable doctor or patient would feel
important and worthy of comment or
treatment, the presence of a medical
condition that significantly affects an
inmate’s daily activities, or the existence of chronic and substantial pain
…are examples of indications that
a prisoner has a “serious” need for
treatment.20

Many physical conditions are easily categorized
using one or more of these criteria. Anyone can
see that a broken bone is serious. Medical professionals will usually agree on many, if not most,
diagnoses. But when it comes to mental conditions, gray areas are more likely. In The Mentally
Disordered Inmate and the Law, Fred Cohen
acknowledges this and cites the following definition adopted by the Ohio Department of Corrections as part of a consent decree:
Serious mental illness means a substantial disorder of thought or mood
which significantly impairs judgment,
behavior, capacity to recognize reality
or cope with the ordinary demands of
life within the prison environment and
is manifested by substantial pain or
disability. Serious mental illness requires a mental diagnosis, prognosis,
and treatment, as appropriate, by mental health staff.21

Estelle v. Gamble, 429 U.S. 97 (1976).
Fred Cohen, The Mentally Disordered Inmate and the Law, Kingston, NJ: Civic Research Institute, 1998, p. 4-3. This
encyclopedic work is an excellent resource for use in analyzing legal requirements applicable to mentally ill inmates and
the related practical demands on corrections agencies.
18
Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176 (11th Cir. 1994); Gaudreault v. Municipality of Salem,
923 F.2d 203 (1st Cir. 1990).
19
McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992).
20
Id. at 1059–1060.
21
Cohen, The Mentally Disordered Inmate and the Law, p. 2-6, n. 5.
16
17

Cohen also acknowledges that
deliberate indifference. ECU
Not
surprisingly,
“there simply is not one clear
administrators might bemoan
the
types
of
definition or predictive certainthe cost of transporting an
behaviors
that
ty as to what is or is not a seriinmate to a hospital for necesmake
placement
in
ous mental disorder…even
sary surgery and providing
[diagnoses like schizophrenia
security while the inmate is
an ECU likely
or bipolar disorders] are often
hospitalized, but they would
are commonly
22
in the eye of the beholder.”
not argue that security conassociated with
cerns justify not providing the
However, regardless of how a
mental illness.
surgery or performing it in a
court chooses to define “serimakeshift facility in the ECU.
ous,” it is safe to assume that at
It is becoming increasingly
least some ECU inmates will
clear that the same principle applies to some ECU
have mental health problems that require profesinmates who are mentally ill: they cannot be
sional attention.
cared for in the ECU and must be moved to an
What Is “Deliberate Indifference”?
environment set up for mental health treatment.
The concept of deliberate indifference, although
somewhat vague, is clearer than the concept of
serious medical need. In 1994, the Supreme Court
defined “deliberate indifference” as an official’s
actual knowledge of an excessive risk to the
health or safety of an inmate, combined with the
official’s disregard of that risk; i.e., the official
fails to make some sort of reasonable response to
the known risk.23 Note that deliberate indifference
embraces the risk of harm. Inmates need not have
died or gotten sick for a court to find deliberate
indifference if conditions create a substantial risk
of serious harm.24
Prison officials have long recognized that physically ill or injured inmates sometimes must be
treated in hospitals outside the prison. If an
inmate needs treatment the prison cannot provide
within its walls, not moving the inmate to the
appropriate facility would clearly constitute

Mental Health Issues in
the ECU
Not surprisingly, the types of behaviors that make
placement in an ECU likely are commonly associated with mental illness. In the Madrid trial, the
warden of Pelican Bay testified that “by virtue of
its mission, Pelican Bay now houses most of the
psychiatrically disabled inmates who have a history of violent and assaultive behavior.”25 A mental health expert who testified on behalf of the
defendants said that “inmates in an ECU include
those with a borderline personality disorder,
[who] when they’re locked up (in segregation)
may have a tendency to experience some transient
psychoses, which means just a brief psychosis
that quickly resolves itself when they’re removed
from the lockdown situation.”26 A legislative audit
of the Wisconsin supermax facility in Boscobel

22
Ibid., p. 4-33. The phrase “often in the eye of the beholder” has particular significance for litigation in which the result
is heavily influenced by expert testimony.
23
Farmer v. Brennan, 511 U.S. 825 (1994).
24
Helling v. McKinney, 509 U.S. 2475 (1993).
25
Madrid, 889 F. Supp. at 1215.
26
Id. at 1216.

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Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

16
found that, in 2001, 15 percent of the facility’s
inmates suffered from mental illness, as indicated
by their receiving psychotropic medications.27
An ECU is the predictable end-of-the-line setting
for the inmate who acts out, creates disturbances,
violates disciplinary rules, and constantly causes
problems. Mental illness may contribute to this
type of inappropriate, disruptive, and potentially
dangerous behavior. Prisons will want to send
such inmates elsewhere, to get rid of a source of
trouble. This may be particularly true if the prison
has limited mental health care resources and is
not equipped to house inmates in segregated confinement for long periods of time. Absent some
other alternative, strong pressures will develop
in a prison system to transfer mentally troubled, acting-out inmates to increasingly secure
facilities—a path leading inevitably to the supermax unit, if one exists.
This scenario contains a dilemma. The very environment that offers the security and control
appropriate for dealing with the type of behavior
such inmates exhibit may make their mental condition worse and may result in a violation of the
Eighth Amendment.

In the Grassian study, each inmate was interviewed by one of two psychiatrists for approximately 30 minutes. The study included a review
of the inmates’ medical and confinement records
but not a full clinical history. Dr. Grassian concluded that several inmates displayed one or more
psychiatric symptoms. In a subsequent article,30
he combined his observations at Walpole with a
review of recent literature and earlier (late 19th
and early 20th century) German reports on the
effects of solitary confinement to define a
syndrome associated with solitary confinement.
This syndrome included the following symptoms:
■

Massive, free-floating anxiety.

■

Hyperresponsivity to external stimuli.

■

Perceptual distortions and hallucinations in
multiple spheres (auditory, visual, olfactory).

■

Derealization experiences (surroundings seem
unreal and unfamiliar).

■

Difficulties with concentration and memory.

■

Acute confusional states, at times associated
with dissociative features, mutism, and subsequent partial amnesia for those events.

■

Emergence of fantasies that are primitive,
ego-dystonic (i.e., incompatible with one’s
self-concept), and aggressive.

■

Ideas of reference (i.e., perceiving oneself as
the center of attention) and persecutory
ideation, at times reaching delusional
proportions.

SHU Syndrome
“SHU syndrome” is a name given to what one of
the concept’s proponents describes as “a little
known form of psychiatric decompensation”
caused by conditions in the ECU unit.28 The concept finds its origin in a 1983 article by Dr. Stuart
Grassian, based on his examination of 14 inmates
who had brought a class action regarding solitary confinement at Walpole State Prison in
Massachusetts.29

Jones’El, 164 F. Supp. 2d at 1115.
Terry A. Kupers, “The SHU Syndrome and Community Mental Health,” Community Psychiatrist, summer 1998.
29
Stuart Grassian, “Psychopathological Effects of Solitary Confinement,” American Journal of Psychiatry
140:1450–1454, 1983.
30
Stuart Grassian and Nancy Friedman, “Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary
Confinement,” International Journal of Law and Psychiatry 8:49–75, 1986.
27
28

■

Motor excitement, often
associated with sudden,
violent, destructive, or selfmutilatory outbursts.
Rapid subsidence of
symptoms upon termination of isolation.

Although Grassian did not use
the phrase, the syndrome he
described has become known
as “SHU syndrome.”31

The important fact
in a discussion of
legal issues for
ECUs is that at least
two courts have
specifically
recognized that
conditions of
confinement in an
ECU can lead to
serious mental
injury for some
inmates.

The list of symptoms Grassian
associated with the syndrome
has expanded. “ . . . [i]t is made
up of official diagnoses such as
paranoid delusional disorder,
dissociative disorder, schizophrenia and panic disorder.”32 “The list of the most common symptoms
are the ones identified by Grassian, though Dr.
Kupers [an expert on SHU syndrome] does not
believe that someone with SHU syndrome must
experience any of the Grassian symptoms and can
experience others.”33
SHU syndrome has not been accepted in the
American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders–
Fourth Edition (DSM–IV), and mental health professionals disagree as to whether it is an “accepted diagnostic classification [or] merely a

concept…[, i.e.,] a set of
symptoms and the existing
diagnoses describe the phenomenon.”34 Regardless of scientific or professional questions
about SHU syndrome, however,
the important fact in a discussion of legal issues for ECUs
is that at least two courts have
specifically recognized that
conditions of confinement in
an ECU can lead to serious
mental injury for some
inmates.
The judge in the Madrid case
(involving the Pelican Bay
SHU in California) noted the
following:

Defendants’ expert Dr. Dvoskin agreed
that segregation may exacerbate preexisting mental illness and that inmates
who are in acute psychiatric distress or
suicidal depressions should not be
placed in the SHU, absent a few “very,
very rare exceptions.”
As defendants’ expert conceded,
there are certain people who simply
“can[no]t handle” a place like the
Pelican Bay SHU. Persons at a higher
risk of mentally deteriorating in the

SHU syndrome has been the subject of a number of articles, primarily in law reviews or other law-related publications.
A Google search of the Web did not reveal professional mental health literature on the topic. See Craig Haney and Mona
Lynch, “Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” NYU
Review of Law and Social Change 23:477, 1977; and Comer v. Stewart, 230 F. Supp. 2d 1016, 1025, n. 18 (D. Ariz.
2002)
32
Jones’El, 164 F. Supp. 2d at 1096, 1101.
33
Comer, 230 F. Supp. 2d at 1016, 1056. Comer involved litigation concerning an Arizona death-row inmate who wanted
to abandon his legal appeals and face execution. His legal counsel challenged his competency to make this decision,
arguing among other things that he was suffering from SHU syndrome. The court accepted that an inmate could suffer
from the affliction, but after reviewing extensive expert testimony, decided that Comer did not.
34
Id. at 1055, quoting a Federal Bureau of Prisons psychiatrist.
31

Mental Health

17
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Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

18
SHU are those who suffer from prior
psychiatric problems, borderline personality disorder, brain damage or
mental retardation, or an impulseridden personality.35
The judge in the Jones’El case (involving the
Wisconsin SHU) was more specific:
Confinement in a supermaximum security prison such as Supermax is known
to cause severe psychiatric morbidity,
disability, suffering and mortality.
Prisoners in segregated housing units
who have no history of serious mental
illness and who are not prone to psychiatric decompensation (breakdown)
often develop a constellation of symptoms known as “[Segregated Housing
Unit] Syndrome.” Although SHU
Syndrome is not an officially recognized diagnostic category, it is made up
of official diagnoses such as paranoid
delusional disorder, dissociative disorder, schizophrenia and panic disorder.
The extremely isolating conditions in
supermaximum confinement cause
SHU Syndrome in relatively healthy
prisoners who have histories of serious
mental illness, as well as prisoners who
have never suffered a breakdown in the
past but are prone to break down when
the stress and trauma become exceptionally severe. Many prisoners are not
capable of maintaining their sanity in
such an extreme and stressful environment; a high number attempt suicide.36
(Emphasis added.)
35
36

Madrid, 889 F. Supp. at 1235, 1236.
Jones’El, 164 F. Supp. 2d at 1101, 1102.

Absent court decisions to the contrary, these findings in Madrid and Jones’El virtually compel the
conclusion that corrections departments need
effective screening procedures to prevent certain
inmates from ever entering the ECU and equally
effective monitoring procedures to identify ECU
inmates whose mental state is deteriorating and
then move them to a more appropriate environment. If a department is unwilling to accept this
principle and finds itself the subject of litigation
based on the concept of SHU syndrome, it must
be prepared to convince the judge that its ECU
environment does not have a negative impact on
inmates’ mental health.
An alternative to focusing on legal defense strategies would, of course, be to design and operate
the ECU in such a way as to minimize factors
that arguably cause the mental deterioration that
even the defendants’ expert in Madrid conceded
took place for some inmates. This approach
would require such things as reducing the level of
physical and social isolation characteristic of the
modern ECU—indeed perhaps restructuring the
entire concept of the facility.
Who Should Not Go to the ECU?
In Madrid, the court identified categories of mentally ill inmates who could not be placed in the
Pelican Bay SHU. The list initially included
inmates in the following categories:
■

Already mentally ill.

■

Borderline personality disorders.

■

Brain damage.

Mental retardation.

■

Impulse-ridden personality.

■

History of psychiatric problems or chronic
depression.37

The court later modified this list after reviewing
extensive work by Pelican Bay’s Special Master
(court-appointed monitor) and his mental health
expert, Dr. Jeffrey Metzner, who had not testified
in the trial. The court deleted “borderline” and
“impulse” personalities from the list and refined
the remaining categories to include inmates diagnosed with:
■

■

A mental disorder that includes being actively
suicidal.
A serious mental illness that is frequently
characterized by breaks with, or perceptions
of, reality that lead the individual to significant functional impairment.

■

Clinicians provided documented evidence of
repeated treatment failures, determined that
further treatment would not improve the
inmate’s mental health condition, and established an appropriate system for monitoring
the inmate after return to the SHU.

■

Corrections officials determined that security
concerns precluded placement in a unit other
than the SHU.

As of July 2003, Pelican Bay had not invoked this
exception.39
One knowledgeable observer has defined a
“Madrid Exclusion Standard” as follows:
Documented diagnosis of evidence of any of
the following DSM–IV—Axis I conditions currently in existence or within the preceding
three months:
1. Schizophrenia (all subtypes).

■

An organic brain syndrome that results in a
significant functional impairment if not treated.

■

A severe personality disorder that is manifested by frequent episodes of psychosis or
depression and results in significant functional impairment.

5. Brief psychotic disorder.

Mental retardation with significant functional
impairment.38

6. Substance induced psychotic disorder
(excluding intoxication and withdrawal).

2. Delusional disorder.
3. Schizophreniform disorder.

■

The court later approved an “exception to the
SHU exclusion process” by which an inmate with
one or more exclusion factors could be returned
to the SHU from a treatment unit if both of the
following conditions are met:

4. Schizoaffective disorder.

7. Psychotic disorder [not otherwise
specified].

Madrid, 889 F. Supp. at 1265.
Madrid v. Gomez, Remedial Order re: Exclusion From the Security Housing Unit, December 15, 1995, unreported.
39
Author’s discussions with the Pelican Bay Special Master.
37
38

Mental Health

19
■

20
Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

8. Major depressive disorder.
9. Bipolar disorder I or II.40
Although an ECU’s particular
circumstances may affect the
categories or severity of problems that warrant an inmate’s
exclusion, the California and
Wisconsin cases have two clear
messages for all ECUs:
■

■

Agencies need thoughtfully
developed categories for
presumptively excluding
inmates from placement in
the ECU on the basis of
existing mental health
conditions.

supermax prison to the Wisconsin Resource
Center (operated by the Department of Health and
Family Services) or to a mental health unit in
another state prison.41 Inmates
from the Colorado State Penitentiary (considered by the
state’s corrections department
Agencies need
to be an ECU) can be transthoughtfully
ferred to a state mental hosdeveloped
pital.42 Details of what a “highcategories for
security mental health unit”
presumptively
should look like and how it
excluding inmates
should be operated are subjects
from placement in
for a future monograph.

the ECU on the
basis of existing
mental health
conditions.

Agencies need to carefully
monitor the mental health
condition of inmates in the
ECU to determine whether the condition of a
particular inmate has deteriorated to the point
where the inmate must be moved to another
setting.

If certain inmates’ behavior warrants confinement
in the ECU but their mental condition precludes
placement in the ECU or demands removal from
it, it stands to reason that corrections agencies
will experience pressure to create psychiatric
security units that can address both the security
requirements and the treatment needs of these
inmates. Following the Madrid decision, California developed such units. According to the
judge in Jones’El, the Wisconsin Department
of Corrections could transfer inmates from its

ECU Mental Health
Lawsuits

As summarized in the sidebar
“A Case Study in ECU Mental
Health Litigation,” the preliminary injunction hearing in the
Wisconsin Jones’El case illustrates how a “typical” ECU mental health case is
likely to unfold. Wisconsin had created screening
and monitoring systems intended to divert mentally ill inmates from the supermax facility. Those
systems were challenged, and their fate was largely determined by mental health experts who
offered conflicting testimony in an adversary proceeding. Were Wisconsin’s systems actually failing to operate as intended? The court clearly
believed this to be the case. Or were the Wisconsin defendants simply unable to convince the
court that the supermax facility was operating
acceptably?
In cases such as Jones’El, the nature of the adversary process essentially requires the judge to

John Stoner, Ph.D., Management of Violent, High Risk, and Supermax Offenders, Washington, DC: U.S. Department of
Justice, National Institute of Corrections, 2002.
41
Jones’El, 164 F. Supp. 2d at 1102.
42
Author’s conversation with Dr. John Stoner, head psychologist at the Colorado State Prison.
40

A Case Study in ECU Mental Health Litigation
his case study is derived from records of

lacked the initial screening report (i.e., the report

the preliminary injunction hearing in the

that was supposed to be part of the initial referral

Wisconsin Jones’El case, in which plaintiffs

process), one had the report completed a year

T

raised mental health-related issues about confinement in the state’s supermax facility in Boscobel.

a

Screening. The corrections department had set up
a three-level mental health screening process for
inmates referred to its supermax facility. The first
screening took place at the sending institution,
where each inmate considered for transfer to the
supermax was examined by a psychologist or psychiatrist to determine whether the inmate could
be safely transferred. The second screening was
performed by a psychiatrist at the department
level. Finally, when an inmate arrived at the super-

after the inmate arrived at the supermax, and
another had an incomplete report (it overlooked
the inmate’s several earlier hospitalizations for
mental health reasons). These failings led the
expert (and the court) to question the quality of
the initial screening procedures. By contrast, however, the defendants’ expert examined records of
100 supermax inmates and found the necessary
screening report in all of them. He felt that the
absence of reports noted by the plaintiffs’ expert
was not routine. The court did not accept this
view.b

max, he was screened again by facility mental

Monitoring. The monitoring program also came

health staff. The record indicated that some

under severe criticism from the plaintiffs’ expert,

inmates had been screened out at each of the

who interviewed 20 inmates as part of his 3-day

three levels.

tour (some chosen because they were taking psy-

Inmates new to the facility (and those who had
failed a step of the facility’s multistep program)
were housed in a unit where security and restrictions were greater than in other units. These
inmates were screened by a mental health specialist once a week. Other inmates were interviewed
by the specialist at the cell front once a month.
Mental health and unit staff reviewed inmates
weekly in unit meetings. A psychologist was
assigned to any inmate diagnosed as mentally ill,
and the psychologist would see the inmate as
often as deemed clinically necessary. Any inmate
on mental health medications would also be seen
by a psychiatrist and would be observed regularly

chotropic medication, some pointed out by other
inmates as having mental health problems, and
others selected at random) and another inmate on
the telephone, after his tour. He concluded that 8
of these 21 inmates were suffering from psychiatric reactions to conditions in the supermax
facility and that these 8 inmates reflected a larger,
general problem throughout the facility. The court
accepted his testimony over that of the defendants’ expert, who offered contrary opinions, and
ordered that five of the eight be transferred out
of the supermax and that two others who had
already been transferred not be returned to the
supermax.

by the nurse who delivered medication to the cell.

The court also ordered that all inmates currently in

Mental health staff could recommend transfer of

the supermax who met certain criteria be exam-

an inmate to another facility.

ined by mental health professionals not employed

This sounds like a prison system that is paying substantial attention to inmate mental health issues.
But when the plaintiffs’ mental health expert

by the corrections department. If these examinations found an inmate to be seriously mentally ill,
that inmate could not be housed in the supermax.

toured the supermax for 3 days and examined

Conflicting Diagnoses: An Example. The plaintiffs’

records of 20 inmates, he found that two records

expert concluded that one inmate he had
continued on page 22

Mental Health

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Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

22
A Case Study in ECU Mental Health Litigation (continued)
interviewed was suffering auditory hallucinations

him 3 days after the expert’s interview and said

and “massive anxiety” despite strong psychiatric

the inmate told her the medication was helping

medication and that this inmate’s condition was

him sleep.

attributable to the continuing stress of being in

In short, the court’s summary of testimony by the

the supermax and to the facility’s lack of a mental

plaintiffs’ expert and the prison’s staff paints two

health program.c In the interview with the expert,

different pictures of the same inmate. The court

the inmate said he heard voices constantly com-

simply rejected the testimony from the prison staff

manding him to kill himself or hurt others, saw

and accepted the diagnosis of the plaintiffs’

things (including demons), and thought the guards

expert, which was based on an interview (lasting

were out to get him. This inmate was taking 300

no more than 75 minutes) and a review of the

milligrams of Thorazine twice daily.

inmate’s chart.

The prison’s mental health staff offered a different

This “dueling experts” process is likely to be fol-

view. This inmate had been seen by the psychia-

lowed in other cases and shows the importance

trist, who commented about the inmate’s “clear

of very credible expert testimony in this type of

and crisp” thinking during an interview conducted

lawsuit. As noted earlier, psychiatric disorders are

about 4 months before the interview by the plain-

often in the eye of the beholder. Two experts

tiffs’ expert. Within 2 weeks of seeing the plain-

examined the mental health issues at Wisconsin’s

tiffs’ expert, the inmate told the psychiatrist that

supermax facility and reached virtually opposite

he was sleeping relatively well and that the Thor-

conclusions. The judge found the plaintiffs’ expert

azine was helping to quiet the voices. A psycholo-

more convincing and adopted his opinions, which

gist who had begun working with the inmate

in turn determined the judge’s final decision.d

regarding the inmate’s auditory hallucinations saw
a Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).
b John W. Stoner, Ph.D., Analysis of Mental Health Services and Treatment of Mentally Ill Inmates at Supermax Correctional

Institution (SMCI), Boscobel, Wisconsin (unpublished document submitted in litigation), p. 36.
c Jones’El, 164 F. Supp. 2d at 1109.
d A similar battle of experts was played out in Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz. 2002), but the issues focused on
the mental status of just one inmate. In Comer, the judge was convinced by testimony that the inmate was not mentally ill,
rejecting the opinions of the same expert whose testimony convinced the Jones’El judge to find in favor of the plaintiffs.

credit the testimony of one of two conflicting
expert witnesses. Which one the judge chooses
determines the result of the case. As the Jones’El
case study shows, even occasional failures to
comply with policy may be taken as indicative of
chronic, systemic failures. Diagnoses and assessments of inmates by facility treatment staff, based
on months or years of work with a patient, are
likely to be contradicted by an expert who, based
on a short interview and a review of patient

records, may characterize inmates as suffering
from SHU syndrome caused by conditions of
confinement.
Trying to determine very complicated, technical
issues such as the mental health condition of large
numbers of inmates and the causes of such conditions through “dueling experts” in the courtroom
is a risky, uncertain business. It is not science. It

is not peer review or sophisticated quality assurance by a group of disinterested mental health
professionals.

required for a parole revocation. The Court did
not require a hearing in emergency situations or
when a transfer is simply for a clinical evaluation.

When it comes to ECU mental health issues, a
Several factors were of significance to the Court
corrections department may be in the strongest
in Vitek. The Court considered that the transfer
legal position if it incorporates some form of
under review was to an agency and institution
ongoing quality assurance reviews into its stanoutside the jurisdiction of the state department of
dard operating procedures. Such procedures
corrections, that such a transfer imposed a stigma
become even more credible if they draw on proon the inmate, and that the transfer exposed the
fessionals from outside the
inmate to a mandatory prodepartment. Quality assurance
gram of behavior modification.
reviews can serve two purposWhen it comes to
The Vitek decision left several
es: (1) alerting the department
substantial questions unanECU mental health
to problems as they develop, so
swered. Unfortunately, relaissues, a corrections
deficiencies can be corrected;
tively little litigation has come
and (2) providing a credible,
department may be
forth in the aftermath of Vitek
nonadversarial-based source of
in the strongest
to answer these questions.44
information about the operation
legal position if it
The most obvious question is
of the ECU.
incorporates some
whether Vitek applies when the
form of ongoing
transfer is not to a mental hosTransferring Inmates for
quality assurance
Mental Health Treatment
pital run by the state’s mental
reviews into its
health agency but to a mental
Simply transferring a prison
standard operating
health treatment unit located in
inmate to a mental health treatprocedures.
another institution run by the
ment facility triggers due
corrections department. What
process protections under a
43
if the transfer is simply to a
1980 Supreme Court decision.
mental health unit in the same
In Vitek v. Jones, which conprison? In The Mentally Disordered Inmate and
cerned the transfer of a prisoner from a Nebraska
the Law, Cohen argues that Vitek should apply
state prison to a mental hospital, the Court said
under such circumstances but recognizes that, in
that as part of such a transfer decision, the inmate
practice, it frequently is not observed.45 Among
was entitled to a hearing that included more proother questions Cohen notes are what criteria
cedural protections than would be required in a
should be used in deciding to transfer an inmate
disciplinary hearing. Notably, the inmate had a
for mental health treatment and what the burden
right to “qualified and independent assistance”
of proof should be in the transfer hearing.
(but not necessarily a lawyer) and the right to
cross-examine witnesses. The model the Court
adopted for the transfer hearing is similar to that
Vitek v. Jones, 445 U.S. 480 (1980).
For a lengthier discussion of Vitek and inmate mental health issues generally, see Cohen, The Mentally Disordered
Inmate and the Law.
45
Ibid., p. 17-10
43
44

Mental Health

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Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

24
The implications and application of Vitek are complex, and
a detailed discussion is beyond
the scope of this monograph.
Suffice it to say that corrections agencies operating ECUs
should seek legal advice on the
meaning of Vitek for mental
health-based transfers.
Involuntary Medication

Inmates have a
constitutionally
protected right to
refuse treatment,
but that right can
be overcome when,
because of a mental
disorder, an inmate
poses a danger to
himself or others.

The involuntary medication of
inmates whose serious mental
illness makes them a threat to
themselves and others raises a
different set of issues. Unless an ECU can very
quickly transfer an inmate to a mental health
treatment facility, it needs to have procedures in
place that address these issues. Even if transfers
are the primary means of dealing with serious
mental illness, the ECU still may need to medicate an inmate if an emergency arises while a
transfer request is in process.

Inmates have a constitutionally protected right to
refuse treatment, but that right can be overcome
when, because of a mental disorder, an inmate
poses a danger to himself or others. The treatment
decision must be made by a medical professional
and must be in the inmate’s best interest medically; except in emergency situations (i.e., the
inmate poses an imminent threat), involuntary
treatment can only be administered after a
hearing, somewhat resembling a disciplinary
hearing.46
Medication can never be given involuntarily for
punishment. Absent the circumstances discussed
in the previous paragraph, medication cannot be
given involuntarily simply to control behavior.
46

Washington v. Harper, 494 U.S. 210 (1990).

Summary

The prison’s constitutional
obligation (under the Eighth
Amendment) to provide medical care—i.e., not to be deliberately indifferent to the serious
medical needs of inmates—
underlies the unique mental
health-related issues confronting ECUs. At the heart of
these issues is a basic dilemma:
the level of security and control
required to manage the behaviors that bring inmates to the
ECU may be harmful to the mental condition of
some inmates and, therefore, in violation of their
constitutional rights.

Debate continues about the nature of “SHU syndrome” and the extent to which conditions of isolation in the ECU may contribute to deterioration
of inmates’ mental health. However, there appears
to be general agreement that ECUs are, to some
extent, hazardous to the mental health of inmates
with certain types of mental conditions. Some of
these inmates should not be placed in an ECU at
all, and others may require very careful monitoring in the ECU and may have to be removed from
the ECU should their mental condition deteriorate. This concern suggests several preventive
steps:
■

Screening criteria. Develop criteria to screen
out some inmates from admission to the ECU
altogether. The limited current case law suggests that such criteria should be somewhat
similar to those in Madrid.

■

Screening process. Develop a process for
effectively applying these screening criteria.

Wisconsin corrections officials had developed
a screening tool, but the court was very critical of how the tool was applied. Should an
agency attempt to rely entirely on a standardized screening instrument? Or should it combine standardized screening with professional
examination, at one or more levels, of each
inmate considered for transfer to the ECU,
together with a final examination at admission? The best approach has yet to be defined.
■

■

47

Monitoring. Implement a process for constantly monitoring the mental status of
ECU inmates and criteria for determining
when transfer out of the unit is warranted.
Wisconsin attempted to do this, but the court
characterized its efforts as “little more than
band-aids to the potentially detrimental conditions to which defendants are subjecting
mentally ill inmates.”47
Removal. Implement a process for transferring inmates out of the ECU if they meet the
monitoring system’s criteria for removal. This
requires, among other things, a place to send
such inmates. Agencies should seek legal
advice on whether a Vitek hearing must
accompany such transfer decisions.

Jones’El, 164 F. Supp. 2d at 1122.

Quality assurance. Consider developing a
quality assurance system or audit process
as a strategy for addressing legal challenges
to screening and monitoring procedures.
Wisconsin’s litigation experience suggests the
wisdom of this approach. A reviewing court
may find such efforts more credible if they
involve persons from outside the corrections
department.

■

Mental health care. Provide ongoing diagnosis and treatment for mental health conditions. This is the “standard” level of service
expected in any prison, and clearly a requirement in the ECU.

■

Staffing. Maintain staffing levels in accordance with the services to be provided.
Operating an ECU mental health program
short-handed is an invitation to litigation and
court intervention.

■

Medication. Be aware of legal constraints
concerning involuntary medication, and have
procedures in place for medicating inmates
whose serious mental illness presents a threat
to themselves and others.

Mental Health

25
■

3

Medical Services

P

roviding medical services to ECU inmates
does not involve issues comparable to the
unique mental health-related concerns discussed in chapter 2. However, operational and
legal problems certainly come up. The extreme
security requirements of the ECU can make delivery of medical services cumbersome and may
lead to delays in providing care. Moreover, some
ECU inmates are likely to demand medical attention because, if nothing else, sick call gives them
someone to talk to. Some inmates in long-term
segregation are likely to be very litigious, and
they may include medical care in their
complaints.

This chapter discusses the challenges of delivering medical services in the ECU environment,
with emphasis on aspects of medical care likely
to be challenged in inmate lawsuits. The context
for the discussion is the traditional “deliberate
indifference to serious medical needs” test,
reviewed at the beginning of chapter 2.

27
Medical Services

C H A P T E R

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

28
Staffing

Concerns about the confidentiality of medical information
A three-step
This consideration is an obviarise as services are delivered
ous one. Because delivering
analysis can help
at the cell front. The Doe case,
medical services is more cuminstitutions address
cited in footnote 49, indicates
bersome in ECUs than in units
confidentiality
how a right to privacy could be
with less stringent security, it
issues that arise
violated. An HIV-positive
simply may take more people
in interviewing,
inmate alleged that medical
to provide a comparable level
diagnosing, and
staff told escort staff that the
of service. Thus, the number of
treating ECU
inmate was HIV-positive; that
qualified medical personnel in
inmate patients.
discussions in the doctor’s
the ECU is a potentially serioffice took place with the
ous issue.
office door open, so officers
and inmates could hear what
was said; and that nurses
Confidentiality
administering medications spoke loudly enough
Issues
that others could hear what medication the inmate
By delivering medical services at the cell, ECUs
was getting and infer that he was HIV-positive.
can reduce costs and security concerns associated
with moving inmates to see medical providers. As
The court held that the allegations in Doe were
Riveland notes, most ECUs provide triage medsufficient to state a claim but that further proceedical services either at the cell front or in exam
ings were necessary to determine whether the
rooms within the unit; additional services might
institution could defend any of the practices in
be provided through telemedicine (using telecomquestion (assuming that the allegations about
48
munications technology). The more services the
them were proven) by showing they were justifiECU provides at the cell front or within the living
ed by a legitimate penological interest.50 For
unit, the greater the importance of ensuring not
instance, did security concerns justify conducting
only that proper equipment and necessary medical
medical interviews between doctor and patient in
records are available but also that adequate prerooms with the doors open?
cautions exist to protect the privacy of inmate
Situations similar to those alleged in Doe could
patients. Although courts disagree about the exiseasily arise in an ECU unit. A medical provider
tence of a constitutionally based right to privacy
conducting sick call or other interviews at the cell
that protects inmate medical records and informa49
front might have to speak so loudly that custody
tion, the trend indicates that such a right exists.
staff or other inmates could hear the conversation.

Riveland, Supermax Prisons: Overview and General Considerations, p. 11.
Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994), holds that no right to privacy exists regarding disclosure of an inmate’s
HIV status. However, see Doe v. Delie, 257 F.3d 309 (3d Cir. 2001), which finds a right to privacy subject to limitation
based on conflicting legitimate penological interests and reviews court decisions on the question; and Powell v. Schriver,
175 F.3d 107 (2d Cir. 1999).
50
The court applied the test for evaluating conflicts between inmate rights and competing institutional interests that
comes from Turner v. Safely, 482 U.S. 78 (1987). The test is commonly used in a variety of situations and is generally
not difficult for institution officials to meet. See chapter 8 for details of the Turner test.
48
49

The doors of the ECU’s medical exam room
might be left open because of security concerns,
allowing persons outside the room to hear what
would otherwise be confidential discussions.

because of the delay, the institution is more vulnerable to liability.

Delays based on a desire to save money can be
questionable.51 Funding shortages can mean
A three-step analysis can help institutions address
staffing shortages, which in turn can lead to
confidentiality issues that arise in interviewing,
chronic delays in providing escorts for medical
diagnosing, and treating ECU inmate patients:
visits. Custody staffing needs to be sufficient to
(1) with the assistance of counsel, determine
handle routine, scheduled visits as well as emerwhether inmates have a progencies. Staff shortages would
tected legal right with regard to
not justify neglecting the pristraditionally confidential medon’s duty to provide medical
ical information; (2) if they do,
care, when those shortages
Staff shortages
then determine ways in which
result in adverse effects on
would not justify
that right may be breached
inmates’ medical condition.
neglecting the
in the actual delivery of medprison’s duty to
ical services to ECU inmates;
provide medical
Role of the
and (3) decide whether such
care, when those
breaches are justified by legitiCustody Officer
shortages result in
mate penological interests.
ECUs should not overlook the

Service Delays

adverse effects on
inmates’ medical
condition.

Only limited medical diagnosis and treatment can be performed at the cell front or in
the living unit. Inmates often have to be moved
either to a clinic in the prison or to an offsite
medical provider. These moves require two or
three staff to escort the shackled inmate to the
medical provider. Sometimes escorts can be
scheduled in advance, but situations requiring
escorts may arise with little or no notice.
Although prisons have some leeway in scheduling
medical care, delays can become the subject of a
“deliberate indifference to serious medical need”
claim. The key question in such cases is what
effects the delay had on the inmate. If a condition
gets worse or the inmate is in prolonged pain
51

Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va. 2000).

custody officer’s role in the
unit’s system for delivering
medical care. Access to the
medical system often begins
when the inmate gives a
request (a “kite”) to the officer.
Inmates commonly claim, correctly or not, that
officers intentionally lose or delay kites as a
means of harassment or that officers read medical
kites and breach confidentiality (see confidentiality discussion earlier in this chapter). Allowing
inmates to drop medical kites into a locked box
where they will be collected by medical staff can
eliminate most arguments over confidentiality and
“lost” kites.

ECU medical staff can take further steps to
reduce concerns that custody officers are impeding access to medical care. Medical staff can
make and document routine rounds within the

Medical Services

29

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

30
living unit, check with inmates who have known
medical problems, and give other inmates opportunities to discuss medical concerns.
Custody officers can provide valuable feedback to
medical and mental health providers regarding the
condition of inmates. By including custody officers in periodic medical/mental health staff
reviews of inmate/patient progress, health-care
providers can gain valuable information they
might not otherwise have. Such communication
with custody staff may be an example of how
sharing some otherwise confidential information
about an inmate’s medical or mental health
condition with nonmedical staff may be justified
by a legitimate penological interest.

Health Insurance Portability
and Accountability Act
(HIPAA)
The provisions of HIPAA have resulted in three
sets of regulations from the U.S. Department of
Health and Human Services. The first set52 deals
with transactions, code sets, and identifiers, i.e.,
standardized means of identifying such things as
diagnostic information and health-care providers.
The second set53 covers privacy of medical information. The third set54 deals with security of protected health-care information. The second set
of regulations, relating to privacy, promises to be
the most problematic for ECUs.
The critical threshold question with the HIPAA
privacy regulations is whether they even apply
to corrections agencies. Because this question
45 C.F.R. § 162.1000.
Id. Parts 160 and 164.
54
Id. Parts 160, 162, 164.
55
Id. § 160.103.
56
Id. § 164.512(k)(5).
52
53

concerns the entire agency, not just a single institution or unit within the agency, it is outside the
scope of this monograph. Suffice it to say that the
rules apply to a health-care provider (and other
types of health organizations) engaging in the
electronic transmission of certain types of “transaction” information.55 Note that two requirements
must be met: the “health care provider” criteria
and engaging in the electronic transmission of
transaction information. “Transactions” relate
primarily to financial matters, such as payment
and remittance.
Permission To Share Medical Information
If a corrections agency and an ECU within it are
“covered entities,” the HIPAA privacy regulations
impose several requirements. The most significant
pertain to circumstances under which “protected
health-care information” (which is not limited to
electronically transmitted information) can be
shared. The general rule is that, except for limited
purposes, such information cannot be shared
without the patient’s specific permission.
A major exception to the disclosure permission
rule exempts corrections agencies from the rule
when they certify that disclosure is necessary for
providing health care to the inmate, for ensuring
the health and safety of other inmates and staff,
and for other similar reasons.56 This general
exception also applies to covered entities that provide medical care to inmates but are not part of
the corrections agency or institution, such as outside hospitals.
Because a hospital outside the prison system
focuses on HIPAA requirements for the general

31
Implications for ECUs

Access to Medical Records
The HIPAA privacy regulations contain other provisions that are not subject to such a broad exception. For example, the subject of a medical record
has a right under the regulations to examine the
record and request corrections. (This right does
not apply to psychotherapy notes.57) Such requests
can be denied if disclosure of the record would
jeopardize “the health, safety, security, custody or
rehabilitation of the individual or of other
inmates, or the safety of any officer….”58 Prisons
probably must make these denials on a case-bycase basis, as blanket denial of all requests would
be inconsistent with the intent of the regulation.
Under the HIPAA regulations, an inmate whose
request for access to records is denied must have
the opportunity to have that decision reviewed.
However, no such right exists for inmates if
“obtaining [a] copy would jeopardize the health,
safety, security, custody, or rehabilitation of the
inmate or other inmates, or the safety of any officer, employee, or other person at the correctional
institution or responsible for the transporting of
the inmate.”59
Id. § 164.524(a)(1)(ii).
Id. § 164.524(a)(2)(ii).
59
Id.
57
58

In general, the HIPAA privacy
regulations are complicated
and have been the source of
substantial uncertainty and
confusion. ECU inmates may
or may not discover the regulations and, for example, begin
to demand access to their medical records. Regardless, corrections agencies need to
examine the HIPAA regulations; determine the extent to
which they apply to agency operations in general
and the ECU in particular; and, if the regulations
apply, determine what policies and procedures are
needed to ensure compliance.

In general, the
HIPAA privacy
regulations are
complicated and
have been the
source of substantial uncertainty
and confusion.

Summary
Providing medical care to ECU inmates involves
operational challenges and legal concerns,
although the constitutional issues are not as great
as those associated with mental health. Staffing
requirements for delivering medical services are
likely to be greater in the ECU than in other units.
Confidentiality of medical information is an issue
in the ECU, especially when services are delivered at the cell front. ECUs need enough custody
officers to avoid delays when inmates must be
escorted out of the unit to receive medical care.
ECUs should also be aware of the custody officer’s role in the medical care delivery system and
take steps to avoid inmate complaints related to
that role. Finally, corrections agencies should
determine how privacy regulations under HIPAA
may affect their ECU operations.

Medical Services

public, it may overlook the disclosure permission exception
for corrections facilities. Thus,
prisons should clarify HIPAA
requirements with outside
providers. Otherwise, if the
prison calls the hospital to
check on the status of “Inmate
Jones,” the hospital may
respond that “we cannot confirm the presence of an ‘Inmate
Jones’ in our hospital.”

4

Other Conditions
of Confinement

C

onstitutional requirements regarding conditions of confinement apply, of course,
to living conditions in ECUs. As noted
earlier, litigation about conditions of confinement
in long-term segregation units is nothing new.
This chapter first discusses how the courts analyze conditions of confinement. It then looks at
operational and legal aspects of specific conditions: personal safety, food, clothing, shelter, sanitation, and exercise. (Mental and medical health
care are discussed separately, in chapters 2 and 3.)

How Courts Analyze
Conditions of Confinement
Courts analyze conditions of confinement under
the cruel and unusual punishment clause of the
Eighth Amendment. In this context, the Eighth
Amendment has two prongs: (1) objective (the
adequacy of conditions that affect inmates’ basic
human needs) and (2) subjective (the defendant
administrators’ state of mind—are they “deliberately indifferent” to problems regarding inmates’
basic human needs?).60 To find an Eighth
60

Wilson, 501 U.S. 294.

33
Other Conditions of Confinement

C H A P T E R

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

34
Amendment violation, the court must decide
against the defendant on both prongs.
Objective Analysis
How serious must a condition affecting a basic
human need be before it runs afoul of the objective prong of the Eighth Amendment? In reviewing a particular condition, a court will ask
whether the condition is actually harming inmates
or presents a substantial risk of serious harm.61
The basic human needs issues most commonly
subjected to judicial scrutiny relate to the
following:
■

Medical and mental health care (discussed in
chapters 2 and 3).

■

Personal safety.

■

Food (the general adequacy of the diet and
whether food is served in a way that does not
pose a risk to inmate health).

■

Clothing.

■

Shelter (the overall living environment,
including heating, cooling, ventilation, lighting, noise levels, and other factors).

■

Sanitation.

■

Exercise, including outdoor exercise.

officials knew of the problem and the risk it presented and disregarded that risk by failing to take
reasonable measures to abate it.62 It is no longer
sufficient for plaintiffs to show that officials
“should have known” about a risk—actual knowledge is required. Actual knowledge can be
inferred from circumstantial evidence.
The actual knowledge inquiry is probably less
important in a class action case involving conditions than in a lawsuit brought by an individual
inmate complaining of a particular incident or situation. Prison administrators are far more likely
to be aware of general problems targeted in a
class action than the problems of an individual
inmate.
No “Totality of Conditions” Test

Subjective Analysis
In deciding whether officials have been deliberately indifferent to a particular problem or set of
problems, a court must determine whether the
Helling at 25.
Farmer, 511 U.S. 825.
63
Wilson, 501 U.S. 294.
61
62

In the past, courts reviewed the “totality” of conditions when considering cases that claimed
Eighth Amendment violations. However, the totality approach was rejected in 1991 by the Supreme
Court in Wilson v. Seiter,63 which concerned conditions in an Ohio prison. Although earlier
Supreme Court case law could be read as approving a totality approach, Wilson flatly rejected this
approach, saying instead that conditions relating
to basic human needs (the list above) should generally be analyzed independently of one another.
Wilson does permit conditions to be analyzed
together if together they relate to a single basic
human need. Thus, inadequate clothing and poor
heating might properly be considered together, as
could poor sanitation practices and the preparation of food.

Basic Human
Needs

like the victim. The correcDouble-celling in an
tions department subsequently
fired the sergeant for gross
ECU compromises
Personal Safety
negligence. The district court
the security that
Personal safety normally should
was extremely critical of the
otherwise defines
not be a major concern in the
sergeant’s actions. However,
the unit’s operation
ECU, where inmates are locked
on appeal, a $40,000 judgment
and may be difficult
down almost constantly and
for the injured inmate was
to justify if it leads
kept under very close supervireversed because the court
to an inmate
sion at other times. However,
held that the sergeant did not
assault.
the “by definition” high risk
have actual knowledge that the
attributed to inmates in the
assailant posed a serious risk
ECU means that when inmateof harm to the victim. A generon-inmate assaults take place,
al knowledge of the assailant’s
litigation and perhaps liability may not be far
dangerous propensities was not enough.65
behind.
Although these conflicting decisions from appelThe courts speak. In one case, an inmate in a
late courts deliver an uncertain message, some
high-security unit got out of his cell and assaulted
conclusions seem warranted:
other inmates who were watching television in the
■ The courts may regard inmates in ECUs as
unit’s dayroom. Notably, the court deferred to the
prison officials’ decision to place the assailant in
presumptively dangerous.
the unit as evidence that he presented an exces■ Inmate-on-inmate assaults in ECUs, where
sive risk to other inmates. This satisfied the first
inmates have virtually no direct contact with
(objective) prong of the Eighth Amendment; in
one another, strongly indicate that a breach of
other words, placement in the high-security unit
procedure occurred and will be the springdefined the inmate as dangerous. As to the subjecboard for victims to argue that staff were
tive (deliberate indifference) prong, the court
deliberately indifferent to the risk presented
found that a corrections officer, by actions that
by inmates. (Note that this argument could be
allowed the inmate to get out of the cell, showed
made if members of rival gangs known to be
reckless disregard for the risk posed by the
at odds with one another were allowed coninmate. Result: judgment for the plaintiffs, the
tact in the ECU.)
injured inmates.64
A somewhat similar case had a different result. A
dangerous inmate in a special management unit
assaulted another inmate in the unit. Evidence at
trial showed that a corrections sergeant failed to
follow various security policies in the unit and
knew that the assailant was dangerous and did not
64
65

Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997).
Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).

Double-celling. Double-celling inmates in an
ECU because of crowding or other factors creates
potential problems. If an inmate is assaulted by a
cellmate, the victim could argue that (1) only
high-risk inmates are placed in the unit and (2) if
these inmates are so dangerous that they cannot

Other Conditions of Confinement

35

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

36
exercise together, must be in restraints outside the
cell, and must generally be kept separate from
one another, any double-celling creates a serious
risk. Various rebuttals are possible, notably that
officials’ careful screening indicated that the two
specific inmates involved in the case were compatible and could be double celled. The inquiry
might then focus on how carefully cell assignments were actually made or on whether staff
failed to monitor the two cellmates well enough
to notice they were not getting along.
Double-celling in an ECU compromises the security that otherwise defines the unit’s operation and
may be difficult to justify if it leads to an inmate
assault. If double-celling is routine in the ECU,
prisons must carefully select cell partners and
monitor how well they get along.
Food and Clothing
Food and clothing should not present major problems for ECUs. In general, units must provide a
nutritionally adequate diet, prepared and served
in a manner that does not present serious health
risks. Clothing should be generally adequate to
maintain the inmate’s privacy and appropriate to
temperature conditions in the unit.
Nutraloaf. One food-related issue that may arise
more in the ECU than in the general population
relates to the use of “nutraloaf,” a food loaf prepared from a variety of nutritionally balanced
ingredients and served without utensils. Nutraloaf
is unappetizing and unattractive, but courts have
generally upheld its use—at least in response to
food-related misbehavior, such as throwing food
at officers or refusing to return trays or utensils.
In LeMaire v. Maass,66 an exceptionally notorious
and dangerous inmate housed for years in the
66
67

LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).
Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y. 1996).

segregation unit of the Oregon State Penitentiary
sued over several issues, including nutraloaf. The
court of appeals noted that the loaf actually provided an excess of nutritional requirements
(LeMaire had gained weight on it), precluding a
finding that feeding it to inmates violated the
objective prong of the Eighth Amendment.
In LeMaire, the court did issue an injunction
directing officials to follow their own rules that
said nutraloaf could be used only as a response to
inmate abuse of food and could be fed to an
inmate for no more than 7 days at a time.
(Because the court found that nutraloaf did not
deprive the inmate of an adequate diet, the legal
basis for the injunction was not clear.)
A nutraloaf that does not provide adequate nutrition could raise a possible Eighth Amendment
issue, perhaps depending in part on how long an
inmate had to eat it. The injunction in the Oregon
case suggests that a court may have concerns if
the loaf is served for punitive reasons unrelated
to abuse of food. A nutraloaf might raise First
Amendment (freedom of religion) issues if, for
example, it contains pork and is served to inmates
who do not eat pork because of their religious
beliefs.
Warm clothing. In Davidson v. Scully, an inmate
plaintiff housed in an upstate New York ECU
alleged that inmates were issued only summerweight clothing and shared lightweight jackets. In
granting a preliminary injunction requiring prison
officials to provide warmer clothing, the judge
found that by providing only light clothing, officials were effectively denying inmates outdoor
exercise during the winter.67

Shelter
Shelter issues may arise in the ECU, depending
largely on the age of the facility. Shelter encompasses the overall physical environment of the
unit, including lighting, heating, cooling, ventilation, noise, fire safety, and access to hygiene
materials (e.g., toilet paper) and hot and cold running water. Examples of shelter-related litigation
are highlighted below.
Lighting. The usual claim has to do with inadequate lighting or natural light in the cell. A different issue can arise in ECUs that leave some light
on in the cell all night to facilitate security checks. Inmates
claim that the constant light
disturbs their sleep.

by a flashlight occasionally shining on them as
officers make rounds?
Severe deprivation. In another case, concerning
the conditions of confinement at Oklahoma State
Penitentiary, an ECU inmate alleged that he was
stripped of his clothing and placed in a cell without a mattress, blankets, or bedding and with minimal toilet paper, no hot water, and inadequate
ventilation. Nighttime temperatures in the cell
dropped to the mid-50s. The inmate alleged that
these conditions lasted perhaps weeks or months.
The allegations were serious enough to warrant a
full trial.70

Multiple issues. In 1996, an
inmate at the Cook County Jail
in Illinois alleged chronic pest
Conditions that
infestations in his living unit—
Lighting was an issue in the
threaten the health
claiming that roaches were
Wisconsin case (Jones’El v.
of inmates can be
everywhere and that roaches
Berge) discussed in the chapthe basis for a
and mice frequently ran across
ter on mental health issues.
finding of cruel
him at night—and stated a
Inmates could turn their cell
and unusual
claim under the Eighth
lights from high to low, but not
punishment.
Amendment.71 This case also
off. Even at low, the light was
included allegations that lightbright enough to read by. Tesing in the inmate’s living unit
timony convinced the court that
was so weak that reading hurt
the constant lighting was parhis eyes; the court said that the lighting problem
ticularly disorienting to inmates with serious
was sufficient to preclude dismissal of the issue
mental illness.68 In the settlement that followed
and warrant further factual inquiry into the
the court’s preliminary injunction, the defendants
allegations.
agreed to lower the nighttime lighting levels in
the cells.69
Sanitation
The obvious lesson from Jones’El is that officials
should examine (1) whether constant nighttime
lighting is needed in the ECU and (2) how intense
the lighting must be to serve its purpose. Are
sleeping inmates less disturbed by nightlights or

Often closely related to shelter and/or food, sanitation issues are fairly straightforward. Conditions
that threaten the health of inmates can be the basis
for a finding of cruel and unusual punishment.

Jones’El, 164 F. Supp. 2d at 1118.
Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL 21462603 (7th Cir. 2003).
70
Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996).
71
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996).
68
69

Other Conditions of Confinement

37

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

38
A dilemma may arise for pristhe use of nutraloaf in his diet
Courts have
on administrators in dealing
also protested officials’ denywith inmates who “foul their
ing him out-of-cell exercise for
discussed
own nest” by smearing feces
years. The court said that offiexercise-related
on walls, throwing urine, stopcials, who denied the inmate
issues for years,
ping up toilets to flood cell
exercise on the basis of his
but the case law
blocks, etc., and then refuse to
dangerous behavior, were not
is unclear.
clean the mess they have creatdeliberately indifferent to his
ed. Officials may feel that
exercise needs and that the
cleaning up behind the inmates
inmate held the key to his cell
in such cases means giving up
through his own behavior.
power to the inmates. If the dispute that led to the
Prudence suggests that at some point, regardless
disruptive behavior is not resolved, the inmates
of inmate behavior, officials should intervene to
may repeat the behavior as soon as the first mess
correct sanitation hazards, even though inmates
has been cleaned up. That said, the thought of
may recreate the problem almost immediately.
leaving an inmate in a feces-smeared cell for a
Close monitoring of the situation, ongoing risk
prolonged time, even if the inmate was responsiassessments with input from medical and mental
ble for the mess, is troublesome. The inmate’s
health experts, attempts to limit the inmate’s abilimental status would certainly be relevant in conty to create the problem (see earlier discussion of
sidering how long such a standoff could be
nutraloaf), and periodic cleanup will help officials
acceptable.
show that they were not deliberately indifferent to
In general, courts will consider exposure to
the problem, should it arise in litigation.
human waste to be a major deprivation of a basic
Exercise
human need and will not tolerate such exposure
for long.72 Offering cleaning supplies to an inmate
who has soiled his own cell may defeat an Eighth
Amendment claim.73
When the unsanitary condition threatens the
health of inmates not directly involved in creation
of the condition, clearly some sort of early remedial intervention is appropriate, at least on behalf of the noninvolved inmates. When the risk
extends only to the inmate(s) who created the
problem, greater leeway may be permitted. In the
LeMaire case discussed earlier in this chapter (see
“Food and Clothing”), the inmate who protested

Inmate exercise presents unique concerns for
ECUs. In the general prison environment, where
inmates are out of their cells for substantial periods during the day and typically have frequent
access to exercise areas (if not to the latest equipment), concerns about exercise virtually never
reach constitutional significance (there is no
right to free weights). By contrast, in a unit
where inmates have very limited opportunities to
exercise outside the cells, the lack of exercise—
and sometimes the lack of outdoor exercise
specifically—can become of constitutional
significance.

DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); in Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989), the
court found that 3 days in a cell with feces smeared on walls was not within “civilized standards, humanity, and
decency”).
73
McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.) 2001); Chambers v. Riveland, 189 F.3d 472, 1999 WL 595366 (9th
Cir. 1999, unpublished).
72

Courts have discussed exercise-related issues for
years, but the case law is unclear. Two 1997 decisions from appellate courts—Thomas v. Ramos
and May v. Baldwin—indicate the vague parameters of the right to exercise:
Lack of exercise may rise to a constitutional violation in certain limited
circumstances “where movement is
denied and muscles are allowed to
atrophy [and] the health of the individual is threatened.”74
Although exercise is “one of the basic
human necessities protected by the
Eighth Amendment” a temporary
denial of outdoor exercise with no
medical effects is not a substantial deprivation . . . a long-term deprivation of
exercise is a denial of a basic human
need in violation of the Eighth
Amendment . . . the deprivation of outdoor exercise for a “period of years”
contravenes the Eighth Amendment.75
These decisions suggest that a lack-of-exercise
claim depends on the facts and requires the
inmate to show some injury or substantial threat
of harm from what probably would have to be an
extended denial of exercise. Other courts have not
been so demanding. For example, in the 1996
Davidson v. Scully case (discussed in the section
on clothing), the court’s preliminary injunction
required officials to provide inmates with heavy
coats lest they be denied the right of outdoor
exercise during the upstate New York winter;
however, the case does not address how long the
inmates were likely to go without outdoor

exercise if they lacked heavy coats, the effects of
not being able to exercise outdoors, or whether
the inmates could exercise indoors.
Earlier decisions from the Seventh Circuit indicate that short-term denial of exercise does not
constitute a violation of the Eighth Amendment.
In Harris v. Fleming, the court found no violation
because an inmate who was denied yard time for
4 weeks could exercise in his cell for that brief
period.76 In Caldwell v. Miller, the court found no
violation where an inmate was confined to his
cell 24 hours a day and denied all outside and
indoor exercise privileges for a month, followed
by a 6-month confinement for 23 hours a day
with 1 hour of daily indoor exercise.77
In extreme circumstances, courts have approved
even relatively long deprivations of exercise. In
LeMaire, the inmate had been denied exercise
outside his cell (and hence outdoors) for most of
a 5-year period. Prison officials could show that
the inmate abused outdoor exercise opportunities
when they were granted and that he was a very
serious security/assault risk any time he was out
of his cell. (For example, he once engaged in an
armed attack on two correctional officers as he
was leaving the outdoor exercise area.) The court
found that, under these circumstances, the officials were not deliberately indifferent to the
inmate’s exercise needs. Although the inmate
arguably won the objective prong of his Eighth
Amendment claim, he lost on the subjective “state
of mind” prong and hence lost the overall claim.
In LeMaire, it was important to the Ninth Circuit
that the inmate controlled his own destiny. If he
demonstrated a willingness to follow the prison’s

Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997), internal citations omitted.
May v. Baldwin, 109 F.3d 557 (9th Cir. 1997), internal citations omitted.
76
Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988).
77
Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986).
74
75

Other Conditions of Confinement

39

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

40
rules, he would regain access to exercise and
other privileges he had lost because of his violent
and threatening behavior.78
Whereas courts over the years have been reluctant
to find that in-cell exercise is sufficient, LeMaire
notes favorably that the inmate could exercise in
his cell, as do Harris and, more recently, Thomas.
However, these cases should not be interpreted to
mean that the courts generally approved denying
inmates regular out-of-cell exercise because they
can do situps and pushups in their cells.
The courts have hedged somewhat with regard to
the right to exercise and the specific right to exercise outdoors a certain number of hours per day
and days per week. Although denial of all out-ofcell exercise for days or weeks (or even years in
the most extreme circumstances) may be defensible, the presumption in designing and operating
ECUs should be that inmates will be allowed to
exercise outside their cells several hours per week
and that some exercise will take place outdoors. If
these privileges are suspended, documenting the
reasons may prove important. (As noted in footnote 78, officials in LeMaire thoroughly documented the inmate’s behavior and their response
over the years, and the documentation played an
important role in winning the case.)

Summary
With regard to certain conditions of confinement
(personal safety, food and clothing, shelter, sanitation, and exercise), issues in ECUs differ from

issues in general population settings only as a
matter of degree. The basic legal test is the same:
do the conditions harm the inmate or present a
serious risk of substantial harm, and are officials
deliberately indifferent to that risk. The ECU’s
very strict environment may increase the risk of
harm to some inmates (especially the mentally ill)
or for some conditions (e.g., exercise).
Intensity and duration of exposure may make
defense of allegedly poor conditions more difficult in ECUs than in general prison settings. In
general settings, the effects of poor conditions in
cells may be mitigated if inmates are out of their
cells most of the day to participate in programs,
jobs, and other activities. The inmates may be
exposed to the poor conditions only a few hours
per day. But ECU inmates rarely leave their cells
and never leave the unit; if poor conditions exist,
the inmates’ exposure is constant. Whereas lack
of exercise is rarely an issue for inmates in the
general population, it is, to some extent, a fact of
life for ECU inmates.
As noted in the Madrid case, conditions in modern ECUs, which remove so much of inmates’
opportunity for human contact, “may press the
outer bounds of what most humans can psychologically tolerate” and sometimes exceed those
bounds for some inmates.79 This observation, and
its implications for the conditions discussed in this
chapter, should be acknowledged by officials in
planning and operating ECUs.

A major caveat about LeMaire: Inmate LeMaire’s behavior showed him to be extremely dangerous, and corrections
officials carefully documented his behavior and their responses to it. The holdings in the case should not be read as
applying to all inmates in long-term segregation.
79
Madrid, 889 F. Supp. at 1267.
78

5

Use of Force

B

ecause the ECU holds the most violent
inmates in a prison system, use of force
will be common. The high level of security in the ECU demands that officers have physical contact with inmates—conducting pat or strip
searches and applying restraints—virtually every
time the inmates leave their cells. In some jurisdictions, all escorts are done “hands on.”80

In addition, the volatile nature of the ECU population means that corrections staff will need to
perform cell extractions, address self-destructive
behavior, and deal with combative, resistive
inmates. Some inmates may try to instigate incidents just to relieve the tedium of their environment. All of these situations may require the use
of force, sometimes at high levels, usually involving specially trained response teams. Depending
on agency policy, officers may have access to
batons, chemical agents, tasers, stun guns, and
other weapons up to and including firearms.
This chapter examines use of force in the unique
context of the ECU. It discusses factors that may
contribute to use of excessive force, reviews legal

Riveland, Supermax Prisons: Overview and General
Considerations, p. 15.

80

41
Use of Force

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Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

42
tests for evaluating force incidents, and suggests
ways of avoiding improper use of force.

of excessive force in the ECU. Available sanctions typically include loss of privileges, placement in segregation, or removal/denial of good
time credits. ECU inmates have few privileges to
Excessive Force: Some
lose and are already locked in the most secure
facility available (making segregation a largely
Contributing Factors
moot point). Many have little or no good time
In the author’s opinion and experience, the ECU
credits to remove or are serving such long senenvironment can create pressures that push offitences that tinkering with a release date is of little
cers to use more force than is needed to manage
immediate importance. Thus, staff may see tradian immediate threat. Some inmates taunt officers
tional disciplinary actions as not providing
verbally and may actually
an adequate response or an
assault officers, spit on them,
effective deterrent to serious
or throw feces, urine, or other
misbehavior in the ECU. If
substances on them. The frecorrectional officers perceive
Proper supervision
quency of officers’ necessary
the formal disciplinary system
can prevent abusive
hands-on contact with inmates,
to be ineffective, they may be
use of force.
the combative nature of at least
more inclined to take matters
some inmates, and the offeninto their own hands and feel
sive behavior to which officers
justified in doing so.
are subjected can create a climate for retaliatory use of excessive force.
Officers may feel that very swift, harsh use of
force demonstrates their power, underscores their
control of the unit, and deters any forceful reaction by inmates.
Proper supervision can prevent abusive use of
force. Without a firm supervisory presence, use of
excessive force can become the accepted, “normal” way of doing business—the “culture” of the
facility or unit. This culture of excessive force at
California’s Pelican Bay facility—and attempts to
cover up the related practices—were important
elements of the Madrid case.81

Use of Force: The Legal Test
and Its Application in Madrid
In Hudson v. McMillian, concerning correctional officers’ use of force at the Louisiana State
Penitentiary at Angola, the Supreme Court
defined the legal standard for evaluating use of
force in a corrections context: “whether force was
applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically
to cause harm.”82 The courts apply the same standard for ECUs as for any other corrections setting. Hudson requires the courts to consider five
factors:

Ironically, an institution’s formal disciplinary system may be another factor contributing to the use
See Madrid, 889 F. Supp. at 1159–2000 and 1247–1255. The court found that a “pattern of needless and officially
sanctioned brutality had invaded operations at Pelican Bay” (889 F. Supp. at 1255).
82
Hudson v. McMillian, 503 U.S. 1 (1992).
81

■ The amount of force used, in relation to the

need.
■

The extent of any injuries.

■

Whether the threat was reasonable, as perceived by responsible corrections officials.

■

Whether any efforts were made to temper the
severity of a forceful response.

Madrid provides an example of the kinds of force
conditions the courts will not tolerate under this
test. The court found that Pelican Bay ECU staff
were using abusive, unconstitutional levels of
force against inmates and that a code of silence
made it very difficult for a staff member to report
an improper use of force or for the agency to hold
officers accountable. Examples of excessive force
included staff assaults on inmates; frequent use of
“fetal restraints” (hog-tying), often for essentially
punitive purposes; and frequent use of lethal force
(i.e., firearms). Excessive force in cell extractions
was common.
The Madrid opinion shows that fundamental
management problems lay beneath the abusive
uses of force at Pelican Bay. Policies were not
clear and consistent enough to provide meaningful guidance to staff. The absence of clear written
guidelines led to different interpretations and
statements of policy by midlevel supervisors.
Training at times was inconsistent with policies.
Pelican Bay also lacked active supervision and
review of force incidents. Written reports tended
to be very general and were routinely accepted.

Madrid, 889 F. Supp. at 1187.
Id. at 1192.
85
Id. at 1187.
83
84

The court found that officials would “turn a blind
eye” when reports suggested the need for more
followup.83 Some force incidents led to internal
affairs investigations, but the court found “that
while the Internal Affairs Division goes through
the necessary motions, it is invariably a counterfeit investigation pursued with one outcome in
mind: to avoid finding officer misconduct as often
as possible.”84 The court also criticized the lack of
supervision in the common use of lethal force
(firearms). The Madrid court eventually concluded that not only were officials deliberately indifferent to use-of-force problems, but there was “an
affirmative management strategy to permit the use
of excessive force for the purposes of punishment
and deterrence.”85

Avoiding Use of
Excessive Force
It is tempting to dismiss Madrid as an isolated
situation—“that wouldn’t happen here.” However,
the author’s experience has shown that the conditions present in many segregation units (inmate
behavioral disorders, limitation of inmates’ personal freedoms, and antagonistic relationships
between staff and inmates, etc.) are fertile ground
for such outcomes. Rather than saying “that
wouldn’t happen here,” perhaps the better approach is to assume that “it can easily happen
here, unless we take proactive steps to prevent it.”
The problems agencies experience in dealing with
high-risk inmates make it obvious that managing
these inmates requires comprehensive needs
assessment, thorough planning, and funding commensurate with staffing and training requirements. But the best planning and preparation are

Use of Force

43
■ The need for the use of force.

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

44
wasted without firm and consistent supervision of
were deliberately indifferent to safety risks, and
operations. Correctional officers assigned to the
the court found an Eighth Amendment violation.86
most dangerous group of inmates in a prison sysSimilar reasoning could be applied in litigation
tem are unlikely to treat them with kid gloves.
about improper use of force.
Even if a facility requires
training in subject control,
Tools for Control,
monitoring, and accountability,
the benefits of that training can
Oversight, and
Once abuse of
be lost if the “culture” of the
Documentation
inmates and a
facility embraces force as a
The “malicious and sadistic”
code of silence
tool for punishment.
legal test that courts use in
become part of
evaluating force claims is not a
the ECU staff
Once abuse of inmates and a
difficult one for institution officulture, they are
code of silence become part of
cials to meet. It tends to give
difficult to
the ECU staff culture, they are
the benefit of the doubt to offieradicate.
difficult to eradicate. Strong
cials. However, absent a relasupervision—beginning at the
tively incontrovertible record of
first-level supervisor and
what took place in a force inciextending to the warden—is
dent, the trier of fact must
required to prevent unconstitutional levels
decide what actually happened on subjective
of force in the ECU. The sidebar “Basic Requiregrounds. Who should be believed—the officers
ments for Avoiding Use of Excessive Force”
(“only necessary force was used”) or the inmate
summarizes important considerations for adminis(“I hadn’t done anything, and they hit me and
trators and managers in developing an ECU operkicked me coming back from my medical visit”)?
ation that meets constitutional standards with
It is especially troubling for defendants to lose a
regard to use of force.
use-of-force case because a jury concludes that
officers were lying when in fact they were not.
In considering use-of-force policies and practices,
The more objective evidence an institution can
officials should keep in mind that inmate plainproduce to show what happened, the less the case
tiffs may not even have to show extreme levels of
may turn on “he said–they said” evidentiary conexcessive force to win a class action suit. The
flicts and the less likely a force claim will be lost
Eighth Amendment also requires prison officials
simply because a jury chose to believe the inmate
to protect inmates from violence at the hands of
instead of the officers.
other inmates. In a case that involved inmate-oninmate violence at a Wyoming State Penitentiary,
Two simple steps can produce objective evidence
the plaintiffs won simply by showing that officials
for defending force claims: videotaping incidents
(including the warden and the agency director)
and conducting post-incident medical examinaconsistently failed to review incidents to detertions. Both steps serve other important purposes
mine causes and consider corrective action. These
as well.
failures led the court to conclude that officials
86

Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy. 2002).

Basic Requirements for Avoiding Use
of Excessive Force
■

■

■

Clear, comprehensive policies governing the

accurate. Reports that use boilerplate lan-

use of force, including alternatives to use of

guage or just state conclusions (“only neces-

force, when force is appropriate, required

sary force was used”) do not describe what

warnings, proper types of force, when special

happened and may imply that officers collabo-

weapons may be used, and required reports.

rated to “cover their tracks.”

Training for officers and supervisors about

■

Active, aggressive review of use-of-force

what is expected of them with regard to use

incidents. Reviews should involve all levels of

of force. Training should include interpersonal

supervision, including the central office, and

skills and verbal strategies for managing diffi-

should ensure that policies were followed, the

cult inmates; without these elements, it may

use of force was justified, the circumstances

be difficult to show “efforts to temper” use of

necessitating force were beyond the staff’s

force, as required in Hudson. Training that is

ability to control or avoid, and the level of

limited to special weapons, chemicals, and

force was appropriate. The review should also

equipment sends a strong message to staff,

ensure that immediate remedial action is

inmates, and the courts about how the agency

taken if problems are noted. Feedback should

intends to manage difficult inmates.

be provided to staff by conducting incident

Reporting requirements. Written reports for

debriefings, identifying areas for improve-

each use-of-force incident must be clear and

ment, and providing training as needed.

Videotaping
Because an ECU is such a controlled environment, most force incidents will develop slowly,
allowing for a controlled response. For example,
a cell extraction in the ECU is a much more
controllable event than a spontaneous riot in the
general population dining hall. The relatively controlled environment in the ECU should make it
possible to videotape most force incidents, providing a clear record of what took place. Videotaping can also deter the inmate who wants to
provoke a violent confrontation and the staff
member who tends to use excessive force when
the opportunity presents itself.
In a cell extraction situation, a handheld videocamera can be used to record officers’ warnings
and the inmate’s response. In some types of force

incidents, however, it may not be possible to
bring a handheld camera to record what happens.
By equipping an ECU with general security cameras that operate constantly and tape common
areas, spontaneously developing force incidents
can be captured on tape. Such cameras may not
provide the detailed record that could be obtained
with a handheld camera, but they can at least
record some visual evidence of what took place.
Videotapes of force incidents also provide administrators with a clear record of what happened,
facilitating evaluation for management purposes.
In addition, videotaping also makes it more difficult for officers to whitewash improper use of
force by falsifying reports and covering for one
another.

Use of Force

45

46
Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Post-Incident Medical Examinations
Conducting a medical examination promptly after
a force incident provides another useful evaluative
tool for managers and the courts. The examination
should be conducted by someone who was not
directly involved in the incident and is not a member of the custody staff. Examination results can
provide reliable documentation as to the extent of
injuries sustained by inmates and staff. (If injuries
are minor or absent, courts tend to excuse other
problems with a use of force.)

Summary
Use-of-force issues are bound to arise in facilities
that house the most violent inmates in a prison
system. Reliably detecting improper use of force
and responding effectively when it occurs may be
the greatest legal and management challenges in
properly operating an ECU. If management lets

use of force get out of hand, the consequences—
patterns of abuse and a code of silence among
staff—are difficult to correct.
Proactive management steps are required to
ensure that ECUs avoid use of excessive force
and meet the legal test courts use in evaluating
force incidents. An institution should be able to
defend its uses of force if it lays a proper foundation through policies, training, supervision, and
documentation. Staff involved in force incidents
must write accurate reports of what happened.
Videotapes and post-incident medical examinations are also useful. Thorough documentation
has both management and evidentiary uses. If
use of force is not properly controlled and a pattern of misuse develops—along with a code of
silence among staff about incidents of abuse—
management has failed.

6

The 14th Amendment:
Due Process
and Placement

T

he due process clause of the 14th
Amendment presents four of the most
basic legal issues affecting operations of

ECUs:
■

Must some form of procedural due process
accompany the decision to place an inmate in
the ECU?

■

If so, what form of process is due?

■

Must periodic status reviews be conducted to
validate an inmate’s continued retention in the
ECU?

■

If so, what form should these reviews take?

This chapter reviews case law related to due
process requirements for ECUs and considers
both legal and policy implications associated with
due process procedures. The review indicates
judicial uncertainty about whether due process
applies to the initial placement decision but general agreement that some form of periodic review
is necessary, although the courts have provided
little guidance about what form the review should
take. Note that the discussion focuses on process,

47
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C H A P T E R

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

48
i.e., what procedures must be followed in making
placement and retention decisions. Before turning
to the legal issues, however, the chapter addresses
some basic operational concerns.

Operational Concerns
Legal considerations aside, corrections managers
have strong interests in how decisions about
admission, review, and release are made. To the
extent that placement or release decisions rely on
inaccurate facts or poor judgment, inmates will be
incorrectly classified into or out of an ECU. Thus,
the process for making these decisions must be
grounded in reliable factual information as the
basis for sound predictive judgments. In his
monograph on supermax prisons, Riveland recommends that placement decisions be an “integral
part of the agency’s classification process” and
based on criteria that are “clearly articulated [and]
non-ambiguous.”87

abuse of the policy criteria for admission and release . . . .88
An ECU may bring with it a sort of Field of
Dreams prophecy: “If you build it, they will
come.” Unless officials design a careful screening
process, this prophecy is likely to come true as
the ECU quickly fills to and beyond capacity with
inmates other institutions want to get rid of. The
goals of such a screening process and the concerns the goals address are very similar to those
of procedural due process (see sidebar “Avoiding Arbitrary Decisions”). However, a court’s
approach to addressing these concerns may differ
from the process a corrections manager might
select.

Avoiding Arbitrary Decisions
The goal of procedural due process is to ensure that
decisions affecting the life, liberty, or property of an
individual are made fairly, on a sound factual basis “to

Pressures will always exist to send troublesome
inmates to an ECU and keep them there. Unless
the keepers of the keys to both the front and back
doors of the ECU make their decisions carefully,
the unit can quickly fill to capacity, with very little turnover. When this happens, the unit becomes
less useful to the prison system, and pressures
build to create additional (expensive) ECU bed
space. Riveland again:
It would be prudent to have the final
authority for approving admission to,
retention in, and release from an extended control unit rest at the highest
levels of the organization. This would
preclude—or minimize—potential
87
88

protect the individual against the arbitrary actions of
government.”*
*Wolff v. McDonnell, 418 U.S. 539 (1974).

Due Process, Segregation,
and ECU Placement
Due process issues are not new for segregation
units. More than 20 years ago, due process issues
were addressed at the Pennsylvania State Correctional Institution at Huntingdon. The Supreme
Court said in Hewitt v. Helms that the language
of regulations and policies governing the placement decision could create a “liberty interest”
triggering minimal due process protections around
the placement of an inmate in administrative

Riveland, Supermax Prisons: Overview and General Considerations, p. 8.
Ibid., p. 9.

segregation, even though the 14th Amendment
itself does not inherently provide any protections.89 The Court also said that the 14th Amendment requires periodic reviews of segregation
status, although the Court did not indicate how
frequently such reviews should take place.
What is new in the due process arena is the question of what process is due an inmate who is proposed for ECU placement. Highlighting the
newness of this issue is the 2004 decision from
the Sixth Circuit Court of Appeals in Austin v.
Wilkinson.90 Many thought that two earlier Supreme Court decisions had answered the “what
process is due” question—and the answer was
either “none” or “very little.” Austin instead finds
that inmates proposed for ECU placement are due
a process similar to that followed for a major disciplinary hearing.
The Sixth Circuit’s 2004 decision distinguishes
the facts in Austin from those in the Supreme
Court’s 1983 decision in Hewitt v. Helms91 and its
1995 decision in Sandin v. Conner.92 Together,
these two cases suggested that no due process
protections might apply to the ECU placement
decisions but, if they did, they would be truly
minimal (e.g., notice of the proposed decision and
an opportunity for the inmate to respond to the
decisionmaker either in person or via a written
statement).
Hewitt dealt with the decision to place an inmate
in administrative segregation. Although the facts
of the case involved a placement of relatively
short duration, the decision in no way suggests
that the length of time an inmate might spend in
Hewitt v. Helms, 459 U.S. 460 (1983).
Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).
91
Hewitt v. Helms, 459 U.S. 460 (1983).
92
Sandin v. Conner, 515 U.S. 472 (1995).
93
Hewitt, 459 U.S. at 476.
89
90

administrative segregation determined the Court’s
holding. In Hewitt, the Court said that the 14th
Amendment does not provide any inherent protections for inmates with regard to placement
decisions. The Court also said, however, that this
finding did not end the question of whether any
due process protections applied. The state could
create “liberty interests” by adopting rules and
regulations that placed “substantive limitations”
on the otherwise unlimited discretionary powers
of the official making the decision. If such limitations existed, the Court said, they resulted in a
“state created liberty interest.”
The Court went on in Hewitt to find that the
administrative segregation placement rules the
Pennsylvania Department of Corrections had
adopted did create a liberty interest around the
placement decision. Therefore, said the Court, the
inmate
must merely receive some notice of the
charges against him and an opportunity
to present his views to the prison official charged with deciding whether to
transfer him to administrative segregation. Ordinarily, a written statement by
the inmate will accomplish this purpose, although prison administrators
may find it more useful to permit oral
presentations in cases where they
belief a written statement will be
ineffective.”93
In Hewitt, the Court refused to apply the due
process rules it had applied a few years earlier (in
Wolff v. McDonnell) for inmate disciplinary

The 14th Amendment: Due Process and Placement

49

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

50
hearings,94 despite the similarities between disciplinary and administrative segregation. The Court
felt the administrative segregation decision was
predictive and very judgmental, in contrast to a
disciplinary hearing decision, and that the administrative segregation decisionmaking process
might even be “hindered” by proceedings that
are more elaborate.95

population settings and/or to conditions in the
state’s administrative segregation units. Under
either comparison, the court decided, the ECU
conditions met the “atypical” test. The court also
decided that because such a small percentage of
the total Ohio prison population ever lived in the
ECU, conditions there were virtually by definition
not “ordinary” under the Sandin test.

A dozen years after Hewitt, the Court reexamined
in Sandin its language-focused “state created liberty interests” test and decided the test was ill
advised because, among other things, it might
actually discourage officials from adopting rules
to guide and structure discretionary judgments. In
place of the state-created liberty interest rule, the
Court adopted a new test that said due process
protections would apply to a particular decision if
the decision resulted in an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”96 Looking at the
facts in the Sandin case, the Court said that placing an inmate in disciplinary segregation for 30
days did not impose an atypical hardship, so no
due process protections were required for such a
decision.

The 2004 Austin decision is not the only time a
court of appeals considered whether long-term
segregation crosses over into “atypical” country—
although it may be the first time the question has
been considered in the specific context of an
ECU, as opposed to more traditional long-term
administrative segregation. Some results from
other courts differ from those in Austin. Some
courts have said that if an inmate is in a status
that is within the legal range of custodial confinement allowed under state laws, the status cannot
be atypical.97 Under this approach, ECU placement would not trigger due process protections as
state law typically gives the department of corrections complete discretion to place inmates in any
institution under its control, be it honor camp or
ECU.

Does placing an inmate in an ECU—a prison system’s most restrictive housing environment—
impose an atypical hardship where a 30-day
placement in disciplinary segregation does not?
The Sixth Circuit’s 2004 Austin decision says that
it does. In reaching this conclusion, the court
compared conditions in the Ohio State Penitentiary ECU to those in Ohio’s general prison

Other courts have taken the same general
approach taken by the Austin court in that they
compared conditions in the ECU with other, more
common conditions in the prison system and also
considered duration of the ECU placement.98
Most recently, the court in Colon v. Howard (a
2000 case cited in footnote 98) used this approach
and ruled that 305 days in ECU segregation at an

Wolff v. McDonnell, 418 U.S. 539 (1974).
Hewitt, 459 U.S. at 474, n. 7.
96
Sandin, 515 U.S. at 472, 484.
97
Cases that at least appear to embrace this approach include Luken v. Scott, 71 F.3d 192 (5th Cir. 1995); Talley v. Hesse,
91 F.3d 1411 (10th Cir. 1996); Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997); and Fraise v. Terhune, 283 F.3d 506 (3d
Cir. 2002).
98
Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995), vacated on other grounds, 117 S. Ct. 1840 (1997); Hemphill v. Delo,
105 F.3d 391 (8th Cir. 1997); Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997); and Colon v. Howard, 215 F.3d 227 (2d Cir.
2000).
94
95

upstate New York correctional
facility amounted to an atypical
deprivation.

It is not surprising
that courts would
regard ECU
placement—with
its typically long
duration, very strict
conditions, and limited privileges—
as an atypical
deprivation,
compared to the
ordinary conditions
of prison life.

It is not surprising that courts
would regard ECU placement—
with its typically long duration,
very strict conditions, and limited privileges—as an atypical
deprivation, compared to the
ordinary conditions of prison
life. The ECU environment is
certainly much harsher than the
setting in which the general
prison population lives. Not all
courts have taken this position, however; eventually, the
Supreme Court is likely to
decide the question. Meanwhile, agencies with
ECUs should pay close attention to legal developments in this area of due process so they will be
aware of any new constitutional mandates that
affect their operations.
Summary: Assume due process protections
apply. From a national perspective, there is
no clear position on whether placement in an
ECU imposes an atypical deprivation. Given this
uncertainty—and given the 2004 Austin decision, which specifically addresses this point—
corrections agencies would be prudent to assume
that some level of due process protections will
apply in ECU placement decisions and should
structure their admission decision process accordingly. A placement process that includes due
process procedures not only facilitates a defense
should due process litigation arise, it furthers the

agency’s goal of basing ECU
placements on reliable information and sound judgment.

What Process
Might Be Due?

Assuming that placement in an
ECU for a period likely to
exceed a year will be found to
be an atypical deprivation that
triggers due process protections, the question then becomes what form those
protections must take. With
the Austin case being the
notable exception, the courts
are nearly unanimous in holding that those protections are the minimal ones
defined by the Supreme Court in Hewitt and not
the Court’s more adversarial, disciplinary-type
procedures in Wolff.99 (The “Comparing Wolff and
Hewitt” sidebar later in this chapter summarizes
these two approaches to due process.)
The Traditional View
For many years, courts took what now may be
considered the “traditional” view that said if due
process protections applied to an inmate going
into long-term segregation, then Hewitt defined
the amount of process due. Giving the inmate
notice of the proposed placement and an opportunity to respond would satisfy Hewitt.
A 1986 decision from the Ninth Circuit Court of
Appeals in California, Toussaint v. McCarthy, is

99
Both Madrid in 1995 and, later, Koch v. Lewis (216 F. Supp. 2d 994 (D. Ariz. 2001)) held that Hewitt defines the
process due. Koch has language indicating concerns that greater procedural protections should apply, given the severity
of long-time SHU placement; however, the court stopped short of saying that Wolff procedures were required. The Koch
decision focuses more on evidentiary questions and is discussed elsewhere in the text.

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perhaps the most noteworthy of due processrelated decisions concerning administrative segregation.100 Although Toussaint dealt with long-term
segregation units in an era before the term “supermax” had been coined, the segregated lock-up
units at San Quentin, Folsom, Soledad, and Deuel
Vocational Institute under review in the case
served the same function that ECUs serve for
many jurisdictions today: to house inmates
thought to be the most dangerous in the prison
system.
While the segregation placements in Toussaint
may not have been as isolating as placement in a
modern ECU unit can be, the units served the
same function, and conditions in the units were
onerous by any measure. Instead of the isolation
of the modern ECU, inmates were exposed to the
constant din of multilevel tiers of cells, where
they were housed 23 hours per day. Placement
was often measured in years. The district court
that originally heard the case found conditions to
be unconstitutional in several respects, including
double-celling and inadequate heating and ventilation, plumbing, lighting, sanitation, exercise,
and food.101
In ordering the corrections agency to conduct a
Wolff-based, disciplinary-type hearing as a condition to placing inmates in these segregation units,
the district court had relied largely on a conclusion that placement prevented the inmate from
earning good time credits. This decision was
reversed on appeal. However, the appellate court
found that language in various state regulations
combined to create a due process-protected liberty interest under the Hewitt test. The appellate
court rejected the lower court’s requirement of a
disciplinary-type hearing, for two reasons: (1) the
state had a very strong interest in maintaining
100
101

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).
Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C. Cal. 1984).

security and safety, and that interest could be
compromised through more complicated due
process proceedings; and, even more significantly,
(2) a disciplinary-type hearing would be of little
value given the reasons inmates are placed in
long-term segregation. The Ninth Circuit’s reasoning in this case contains important insights for
prison administrators:
Given the disruptive propensities of the
inmate population, we are especially
sensitive to the Supreme Court’s
[Hewitt] admonition that “[t]he safety
of the institution’s guards and inmates
is perhaps the most fundamental responsibility of the prison administration.” The state’s interest in maintaining
safety and security weighs heavily in
favor of avoiding prolonged and cumbersome administrative proceedings.
Finally, the value of Wolff-type procedures was minimal in the context of
the decision to segregate a prisoner for
administrative reasons. When determining whether the prisoner was guilty
of misconduct, as was the case in
Wolff, the inquiry is essentially factual.
The prison administrator seeks to
determine whether the prisoner committed the alleged offense. When
deciding whether administrative segregation is needed, however, the administrator relies largely on subjective
factors:
In assessing the seriousness of a threat
to institutional security, prison administrators necessarily draw on more than
specific facts surrounding a particular

incident; instead, they must consider
the character of the inmates confined
in the institution, recent and longstanding relations between prisoners and
guards, prisoners inter se, and the like.
In the volatile atmosphere of a prison,
an inmate easily may constitute an
unacceptable threat to the safety of
other prisoners and guards even if he
himself has committed no misconduct;
rumor, reputation, and even more
imponderable factors may suffice to
spark potentially disastrous incidents.
The judgment of prison officials in this
context, like that of those making parole decisions, turns largely on purely
subjective evaluations and on predictions of future behavior; indeed,
the administrators must predict not
just one inmate’s future actions, as
in parole, but those of an entire institution. A trial-like proceeding is
unlikely to inform a prison administrator regarding such subjective
considerations.102
Relying on Hewitt, the Ninth Circuit said that
prison officials had to “hold an informal nonadversary hearing within a reasonable time after the
prisoner is segregated” and had to inform the prisoner of the “reasons for considering segregation”
and that the inmate had to be “allowed to present
his views.”103 The court specified that due process
did not require any of the following:

Written notice of charges.

■

Representation by counsel or counsel
substitute.

■

Opportunity to present witnesses.

■

Written decision describing the reasons
for placing the inmate in administrative
segregation.

■

Disclosure of the identity of any person providing information about the proposed
placement.104

In Madrid (the Pelican Bay case), the court found
that due process protections were necessary for
placement in California’s highly restrictive SHU
and that the Hewitt-type process was sufficient.105
In McClary v. Kelly,106 the court also held that
Hewitt defined the amount of process due for
placement in an ECU.107
A Contrary View
But what about Austin? In considering the Ohio
Department of Corrections’ procedures for ECU
placement decisions, the Austin district court (in
2002) and appeals court (in 2004) noted that the
Supreme Court’s 1995 Sandin decision so undermined its earlier Hewitt decision that severity of
deprivation had to be considered in determining
how much process was due inmates in ECU
placement decisions.

Toussaint, 801 F.2d at 1100 (emphasis added, internal citations omitted).
Id.
104
Id. at 1101.
105
Madrid, 889 F. Supp. at 1274.
106
McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. 1998).
107
Note that the Madrid decision came before the Supreme Court’s 1995 Sandin decision that made atypical hardship a
condition for due process protections; McClary came after Sandin.
102
103

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54
Using a Hewitt-based process, the Ohio Department of Corrections had been giving inmates
48-hour notice of classification committee
reviews for possible ECU placement. Inmates
could appear before the committee and make oral
and written presentations. Both the district court
and the court of appeals felt that even though
placement in Ohio’s ECU was a forward-looking,
predictive decision, the loss the inmate faced—
combined with the risk of error in the Department’s simple hearing process—meant that due
process required a more adversarial, Wolff-type
procedure.
The court of appeals approved the district court’s
order in most respects. Most notably, the order
required the Department to give the inmate written notice of all the grounds being used to justify
placement in “high maximum custody” status
plus a summary of the evidence prison officials
would rely on for placement. (Under the Department’s rules, placement can occur only if
certain historical, factual “predicates” exist.
Placement cannot occur unless the inmate meets
one or more specified criteria; however, meeting
one or more criteria does not mandate placement.) Interestingly, the Department’s policy
required 48-hour notice, but the district court,
which found that policy constitutionally deficient,
only required 24-hour notice (as called for under
Wolff).108 The appellate court did not change the
24-hour notice aspect of the lower court decision.
The court order also specified the following:
■

108

Inmates can call witnesses and present documentary information, unless doing so would
be unduly hazardous.

■

The Department must make a record of all
classification committee proceedings.

■

Special precautions are necessary if the
Department wants to rely on information
from confidential informants in making a
placement decision.

■

If an official above the classification committee considers information that the classification committee has not considered, the inmate
must receive notice of this fact, a summary of
the evidence involved, and an opportunity to
respond in writing.

Due Process and the Quality
of Placement Decisions
Does more due process enhance placement decisions? In other words, will a proceeding that
resembles a disciplinary hearing lead to more
appropriate decisions regarding the prolonged
confinement of inmates in ECUs than are possible
with a classification-type process? The sidebar
“Comparing Wolff and Hewitt” addresses this
question.
Meaningful Notice
The notice in an ECU placement proceeding is
likely to be quite different from the notice in a
disciplinary hearing. The latter can and should be
quite specific: “You are charged with violating
Rule 06: assaulting an officer. The incident took
place on January 27 at approximately 2 p.m. in
the dining hall. You struck Officer Jones with
your fist.” Time, place, and quite specific facts are
included in the formal notice or in an officer’s
report attached to the formal charging document.

Austin v. Wilkinson, 189 F. Supp. 2d 719, 747 (N.D. Ohio 2002).

Comparing Wolff and Hewitt
his summary compares two approaches to

T

Comment—The biggest area of difference. For

due process: (1) a disciplinary-type hearing,

example, if the placement decision involves new

as defined by the Supreme Court in 1974

factual determinations, such as the nature and

(Wolff v. McDonnell); and (2) a classification-type

extent of an inmate’s gang associations, an inmate

process for placing inmates in long-term segrega-

with no right to call witnesses will find it difficult

tion, as defined by the Court in 1983 (Hewitt v.

to rebut any allegations. However, as a practical

Helms).

matter, could the inmate rebut these allegations

Purpose
Wolf: Determine after the fact whether the inmate
violated a specific disciplinary rule; if so, impose a
sanction.
Hewitt: Make a more general evaluation of inmate’s behavior, associations, and attitude; then

in a Wolff-type hearing? Probably not. This is why
factual determinations should be based on fair,
thorough, and accurate investigations by the
institution.
Decisionmaker
Wolff: Neutral decisionmaker.

predict the inmate’s threat to safety and security.

Hewitt: Not addressed.

New factual determinations may or may not be

Comment—The classification process is presumably

associated with the decision.

neutral.

Comment—Hewitt discusses the nature of the

Representation

segregation decision. ECU placements may be
predictably longer than what the Supreme Court
envisioned in Hewitt, but the nature of the

Wolff: Right to assistance if the inmate is illiterate
or otherwise unable to prepare and present the
case.

decision is the same.
Hewitt: Not addressed.
Notice
Comment—Assistance could be provided to
Wolff: Notice of charges at least 24 hours before

inmates in the classification process.

hearing.
Informants
Hewitt: Notice of reasons for proposed placement.
Wolff: Protections to ensure that confidential
Comment—No real difference, assuming the
inmate receives the Hewitt notice before the

informants are reliable and credible. (This requirement actually comes from post-Wolff decisions.)

placement decision is made. However, a Hewitt
notice is likely to be more wide ranging and some-

Hewitt: Not addressed.

what vaguer than a notice of charges in a discipli-

Comment—The institution has its own interest

nary hearing.

in ensuring the reliability and credibility of

Hearing
Wolff: Adversary-type hearing.
Hewitt: Nonadversarial hearing; the inmate has
an opportunity to present views. The institution

informants.
Written Decision
Wolff: Written decision, indicating the evidence
relied on and reasons for the sanction.

decides whether the inmate’s presentation is oral

Hewitt: Not addressed.

or in writing.

Comment—A properly developed administrative

Comment—A Hewitt “hearing” could perhaps be

process should generate a written decision, indi-

more accurately described as a “meeting.”

cating the basis for the decision. A written decision

Witnesses

is important because it will be the basis for any
appeal by the inmate, an element in any audit of

Wolff: Right to call witnesses, unless a particular
witness would present a security or safety risk.
Hewitt: No right to call witnesses.

the placement process, and, probably, the starting
point for any future reviews of the inmate’s status.

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56
In contrast, an ECU placement
author’s 30 years of experinotice starts with an assertion
ence in writing and reviewing
Simply notifying
such as “you are considered to
disciplinary rules and prison
the inmate that
be a threat to the security of the
disciplinary processes.109)
“we think you are
institution.” It then gives the
a security threat”
The factual basis of a longreason(s) for the assertion, such
does
not
suffice.
term segregation decision may
as “your long, assaultive discibe clearly established (e.g., an
plinary record, and your associinmate’s history of serious disation with gang activity.”
ciplinary infractions), but it is
Information about the inmate’s
likely to be more complicated,
attitude and adjustment probinvolving factors such as intelligence information
lems may also be included. In short, the notice
about gang activity or other illicit behavior that
covers relatively large areas of concern, some
indicates a threat but has not yet manifested itself
quite specific (disciplinary record), others less so
in disciplinary infractions. The factual basis may
(e.g., gang affiliation and activity may be less
be in the “suspicion” stage. If the institution has
clear and/or based on informant information), and
strong indications that an inmate is a danger to
some quite subjective (adjustment, attitude).
security, does it wait until the suspicions are
Even though an ECU placement notice is likely to
proven as fact, or does it segregate the inmate on
be less specific than a disciplinary hearing notice,
the basis of the suspicions? Suspicion-based deciit should try to fairly explain what will be considsions are at least a possibility.
ered in the placement decisionmaking process.
The “facts” are only part of the placement deciSimply notifying the inmate that “we think you
sion. The other, arguably more important part is
are a security threat” does not suffice. The 2004
a predictive judgment, made in light of whatever
Austin decision helps to clarify what is required:
information the institution has, about whether the
not only a notice, but summaries of the evidence
inmate is enough of a threat to security (or whatprison officials plan to rely on in the placement
ever other criteria are being considered) to warprocess.
rant placement in the prison’s highest security
classification.
Calling Witnesses
The inmate’s limited right to call witnesses in an
ECU placement process is probably the most
significant difference between this process and
the disciplinary hearing. However, the author
agrees with the Toussaint decision that a Wolffbased, disciplinary-like model will not improve
the quality of decisionmaking in the context of
ECU placement. (This view is based on the
109

How much impact will an inmate’s ability to call
witnesses have on this decision? In the author’s
opinion, little or none on the second part (the
judgment) and probably relatively little on the
first part (the facts). For example, a witness saying the inmate is not an active gang member or
involved in strong-arming activities is not likely

See William C. Collins, A Practical Guide to Inmate Discipline, 2d ed., Kingston, NJ: Civic Research Institute, 1997.

to sway decisionmakers who have information
to the contrary from a thorough institutional
investigation in which the decisionmakers have
confidence.

denied it informs the inmate in what respects he
falls short of qualifying for parole.”111
Thorough Investigation: The Key to Fair
Decisions

A related consideration is that even a Wolff-type
Modeling procedural protections after Wolff is
hearing provides very limited protections for the
likely to provide only illusory safeguards for
inmate with regard to information from anonyinmates in the ECU placement decisionmaking
mous informants. Due process may require the
process. What is critical to a fair and appropriate
decisionmaker to assess the credibility of these
result in this process is the quality of the investiinformants, but the inmate is not
gation that provides informaprivy to the information the
tion for decisionmakers. The
assessment relies on and has
quality of the investigation is
virtually no way to rebut any
critical because the decision
What is critical to a
110
allegations.
to classify an inmate into an
fair and appropriate

result in this process
is the quality of
the investigation
that provides
information for
decisionmakers.

Perhaps if inmates had investigative resources comparable
to the prison’s and were fully
represented in the process, they
could develop information with
enough credibility to stand
equally with the information
developed by the institution.
However, not even Wolff requires that level of assistance.
Should such assistance be provided, the decision
process surely would become adversarial.

Comparison to the parole decision provides
another useful perspective. As serious as a decision to place an inmate in long-term segregated
confinement is, is it more serious than the decision to deny an inmate parole? The Supreme
Court has said that the parole consideration
process satisfies due process if it only “affords an
opportunity to be heard, and when parole is
110
111

ECU is based on subjective
information as well as historic
fact, because the judgment is
inherently predictive, and
because the decisionmaker
often must consider substantial
amounts of information compiled from a variety of sources.

The appropriate model for
ECU placement decisions is an
administrative one in which decisions are based
only on complete, reliable information about the
inmate. An adversarial model is not appropriate.
To some extent, the debate about procedural protections (see sidebar “The Due Process Debate”)
misses the mark if it tries to choose between
Hewitt and Wolff. Neither of these cases addresses
the quality of information the institution develops
to support reclassification. The Wolff adversarial
process and right to call witnesses address the
“quality of information” issue in theory, but the

McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982).
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979).

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The Due Process Debate

T

he debate about what process is due an

1.

Placement is such a serious deprivation under

inmate facing possible ECU placement has

Sandin that the more expansive due process

three branches:

protections in Wolff v. McDonnell are

No process is due. This is the ultimate argument under Sandin v. Conner.

2.

3.

Placement in an ECU amounts to atypical deprivation under Sandin and thus invokes due
process protections. The required protections
are defined by Hewitt v. Helms and take the
form of notifying the inmate and providing
the inmate with an opportunity to respond.

required. This is the Sandin/Austin position.
Given that the goal of due process in any context
is to enhance the fairness of the decisionmaking
process and to guard against arbitrary actions on
the part of the government, none of these three
options addresses the most important aspect of
the ECU placement decision: the quality of the
information on which the decision is based.

This can be described as the Sandin/Hewitt
position.

theory is a long way from reality. An inmate is
unlikely to be able to undercut the institution’s
factual assertions or demonstrate that those assertions are based on sloppy investigatory work and
should not be credited.
The largely administrative process that California
followed in its segregation decisionmaking was
approved by the courts in the 1995 Madrid finding. That process, which provided inmates with
two opportunities for input, is discussed later in
this chapter.

Evidentiary Tests
Placement decisions are judgmental and predictive, but they are not made on a whim. Officials
must weigh the individual inmate’s interests in
not being confined in an ECU against the larger
interests of safety and security of inmates, staff,
and the institution in general. In such cases, there
is pressure on officials to weigh the larger interests more heavily, i.e., to err on the side of
112

caution for the larger prison community. However, placement decisions ultimately rest on a
factual foundation. How “sound” must that foundation be? How much evidence is required to
conclude that an inmate presents such a serious
threat that ECU placement is necessary?
Ironically, the Austin decision, which imposes relatively stringent requirements for ECU placement
decisions, does not address questions about the
quality or quantity of evidence necessary to support such decisions. However, the courts have
provided some guidance in earlier decisions.
Even in regard to traditional inmate disciplinary
proceedings, the due process clause barely touches on the question of the amount of evidence
required. Years ago, the Supreme Court held that
a finding of guilt in a disciplinary hearing that
involves deprivation of a liberty interest must be
supported by “some evidence in the record.”112 To
a court reviewing the evidence in a disciplinary

Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985).

hearing under this test, “the relevant inquiry is
whether there is any evidence in the record that
could support the conclusion reached by the
prison decision makers.”113 This is a very low
level of judicial scrutiny. The court cannot substitute its judgment for the prison official’s as to
the weight of the evidence. It can only determine
whether the record contains any evidence that
could have supported the finding.

Applying Evidentiary Tests:
A Case Study

I

n a 2001 case, Koch v. Lewis, the district court applied
the “some evidence” and “indicia of reliability” tests in
a case involving an inmate who was placed indefinitely

in a special management unit (SMU) after the prison
validated his membership in a security threat group, the
Aryan Brotherhood (AB). This placement was likely to last
for the rest of the inmate’s prison term, because gang

Courts apply the “some evidence” rule in the context of administrative segregation placements.114 If
a court finds that the decision to place an inmate
in an ECU involves a protected liberty interest
under Sandin, it probably will apply the “some
evidence” rule in reviewing that decision.115 As
part of the “some evidence” review, a court is also
likely to consider whether the evidence bears
some “indicia of reliability.”116

members who entered the unit rarely left it.
The validation, which took place in 1998, was based on
the following: a 1981 group photo in which the inmate
posed with known AB members; testimony that AB members never pose for photos with nonmembers; information that the inmate had been seen in the company of
four AB members (although no information about what
they discussed); and two lists of AB members, seized from
members, on which the inmate’s name appeared.a
The court accepted that this information established gang
membership. However, the court went on to conclude

In Madrid, the court said that placement of
inmates in the Pelican Bay SHU because of gang
affiliation had to be based on information with
“some indicia of reliability.” This meant that there
had to be some factual information “from which
the IGI [Institutional Gang Investigator] and the
classification committee ‘can reasonably conclude
that the information was reliable.’”117 The sidebar
“Applying Evidentiary Tests: A Case Study”
describes now one court applied both the “some
evidence” and “some indicia of reliability” tests.

that membership alone would not support placement in
the SMU, citing a combination of conditions in the SMU
and the fact that it was virtually impossible for inmates
to get out of the SMU if they were placed there because
they were gang members.b
aFor an informative discussion of the Aryan Brotherhood, see David

Grann, “The Brand,” The New Yorker, February 16, 2003, p. 157.
bKoch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz. 2001).

Madrid, 889 F. Supp. at 1273, citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001).
115
A court has accepted results from properly performed polygraph tests under the “some evidence” rule (Toussaint v.
McCarthy, 926 F.2d 800 (9th Cir. 1990)).
116
Madrid, 889 F. Supp. at 1274.
117
Id.
113
114

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Quality of Information: The
Institution’s Responsibility
Assuming that an inmate receives notice of potential placement in the ECU, that the notice
explains the reasons for the placement, and that
the inmate has an opportunity to respond, a
fundamental concern—with clear due process
implications—remains: Is there a sound basis for
the decision? In other words, does the decisionmaker have information that reasonably supports
a conclusion that the inmate
fits one or more of the
agency’s criteria for ECU
placement?
With

workload-intensive element of the initial placement decision is the investigative process that
produces the package of accurate and reliable
information that officials will consider in making
the placement decision.

Periodic Reviews

In Hewitt, the Supreme Court said in a footnote
that periodic reviews of placements were required, lest administrative segregation “be used as a pretext
for indefinite confinement of
an inmate.”119 The Court did
periodic
not prescribe the form such a
reviews, as with
review should take, how often
the initial ECU
it should take place, or even
placement decision,
what role the inmate should
the managementhave in the review, if any. In
related interests of
the Toussaint case, the Ninth
the institution and
Circuit said that annual rethe concerns of the
views were too infrequent but
did not say what frequency
courts coincide.
would be appropriate.

As a determinant of the placement decision, the quality of
the information before the
decisionmakers is more important than the inmate’s opportunity to appear before them. Yet
the due process protections
considered by the courts do not
seriously address quality of
information. Therefore, institution officials must establish
their own investigative processes to produce reliable information. They then must be prepared to
demonstrate to a court that the process is designed
to produce reliable information and that, in fact, it
does so.118

Workload Considerations
A certain workload burden is imposed by notifying inmates of proposed ECU placement and
giving them opportunities for input, but the
burden is relatively insignificant. The most

To some extent, the frequency
of reviews will depend on the
circumstances surrounding an inmate’s placement
in segregated confinement. If the initial placement
is presumptively for an extended period, as is the
case in the typical ECU placement, very frequent
reviews appear to have no productive purpose.
With periodic reviews, as with the initial ECU
placement decision, the management-related
interests of the institution and the concerns of the
courts coincide. The prison has no interest in
keeping someone in an ECU without good reason.
If the concern that prompted the initial placement

The discussion of Jones’El in the chapter on mental health issues noted that shortcomings in a mental health screening
process (an expert pointed out errors in 4 of 20 files reviewed) contributed to the court’s finding that some inmates had
been improperly placed in the Wisconsin supermax facility. Officials should expect similar scrutiny of other aspects of
the placement process.
119
Hewitt, 459 U.S. at 477, n. 9.
118

no longer exists and no other has arisen to take its
place, there is no reason to keep the inmate in the
unit.
Periodic reviews were an issue in Madrid, and the
court approved California’s practice of reviewing
confinement in Pelican Bay’s SHU every 120
days. (The court did not indicate whether a longer
review period would be acceptable.) Madrid did
insist that officials record any evidence rejected in
the initial placement decision, to prevent the discredited information from being considered later
to support retention in the ECU.
The courts have generally been very reluctant to
impose demands on the review process (other
than saying there must be one). In Hewitt, the
Supreme Court said that new factual information
was not necessarily required as part of the
process. As discussed in the next section on
gangs, the court in Madrid approved the practice
of holding inmate gang members in segregation
until they renounced membership, disclosed
names of other members, and revealed information about gang activities—even if an inmate’s
behavior in the ECU had been exemplary and
even though this “debriefing” would label the
inmate as a snitch.

Gang Membership as
Grounds for ECU
Placement and Retention
A much more specific issue than the fundamental
due process issues discussed above is the question
of whether gang membership alone can support
placement and retention of inmates in ECU units.
Two district courts have considered this question,
and the two courts disagree.
120

Madrid, 889 F. Supp. 2d at 1278.

The Koch decision, discussed earlier in this chapter, found that gang membership alone could support a short-term placement (the term was not
defined) but that long-term placement (years or
possibly for life) could not be justified without
some indication of an overt act of misconduct.
The program under review in Koch allowed
inmates to get out of the ECU only if they
renounced gang membership and named other
gang members in a “debriefing.” If they did so,
they were moved to another highly secure segregation facility to avoid repercussions associated
with being a “snitch.” No one who had been
debriefed had ever returned to the prison general
population. Thus, it appeared that once segregated,
a gang member would always live under some
form of highly restrictive, segregated confinement.
Defendants in Koch argued that inmates held the
key to release from ECU segregation through
renouncing and debriefing, but then conceded that
release back to a normal prison existence was virtually impossible. Would the court have been as
concerned about prolonged segregation if these
inmates actually could control their return to the
general prison population?
In Madrid, the court was also concerned about the
indeterminate placement of inmates in segregation based solely on gang membership. As in
Koch, a gang member’s only way out of the SHU
at Pelican Bay was through renunciation and
debriefing. California officials also conceded that
debriefing would cause an inmate to be labeled as
a snitch. Noting credible evidence from prison
officials that inmates joined gangs “for life,” the
Madrid judge did not find that the policy of
requiring debriefing for transfer out of the SHU
violated the constitution.120

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California followed a careful process for determining gang membership, although the process
gave the inmate a relatively limited role. Information on gang membership was gathered by the
Institutional Gang Investigator (IGI). Before recommending validation of an inmate as a gang
member, the IGI met with the inmate to discuss
the investigation results and hear the inmate’s
views. The final decision on gang membership
was made by a central office committee, which
did not meet with the inmate. The final decision
to transfer the inmate to the SHU was made by a
classification committee; at this point, the inmate
again had the opportunity to present his views.
This process, said the district court in Madrid,
met the requirements of Hewitt and provided a
reasonable factual basis for decisions. The inmate
had the required opportunity to present his views
to the official making the gang membership determination at the institution level. As noted earlier,
the court also required that the placement decision rest on an evidentiary basis that has “some
indicia of reliability.”121 At Pelican Bay, if informant information was considered in either the gang
membership validation process or the SHU placement process, the record included information
showing the informant’s reliability.
Following a process similar to Pelican Bay’s can
protect inmates from arbitrary placement in an
ECU. Such a process can also help the institution
ensure that scarce and expensive ECU housing is
not wasted on inmates who do not need it.
Other jurisdictions take a less dramatic approach
to gang membership and activity. In Ohio, for
example, being a leader in a gang or other “secu121
122

Id. at 1273.
Austin, 372 F.3d at 351.

rity threat” group is grounds for ECU placement,
but mere membership in such a group is not.122 A
gang member may be watched more closely than
other inmates, but he will not be placed in the
ECU unless he engages in overt gang activity. An
inmate who has been placed in the ECU because
of gang activity can gain release from the ECU by
demonstrating through word and deed over time
that he has dropped out of the gang; a debriefing (naming other gang members) may not be
required. Once released, if he again demonstrates
gang membership, he may be returned to the
ECU.
The approach a department of corrections takes to
gang membership and ECU placement and retention is a matter of agency policy. At this point,
Koch is the only authority saying that membership alone, without overt misconduct, will not
support essentially permanent placement in ECU
status. Madrid accepts that an initial gang membership validation, properly done, can justify a
very long ECU placement. Taking the tough
approach followed by Arizona (Koch) and
California (Madrid) means an agency may face
some difficult litigation. Taking a more flexible
approach may allow the agency to say more convincingly that the inmate, through behavior he
can control, truly holds the key to moving out of
the ECU environment and back into the prison
mainstream.

Summary
Courts are uncertain as to whether placement in
long-term confinement under the very restrictive
conditions associated with the typical ECU
imposes an atypical deprivation on an inmate and

therefore requires due process protections. Until
olution of factual disputes at the meeting with
the courts speak more clearly on whether and
the inmate.
what kind of due process is required in placement
■ Determine the reliability of
decisions, corrections agencies
informants and the inforwould be prudent to provide
mation they provide.
basic procedural protections
that are likely to meet a court’s
Until the courts
■ Conduct periodic reviews
requirements. Such protections
speak more clearly
to determine the need for
also serve prison officials’ own
on whether and
continued segregation.
interests in having an effective
what kind of due
Give the inmate an opporplacement decisionmaking
process is required
tunity to provide input for
process. These protections
in placement
retention decisions.
include the following:

decisions, corrections agencies
would be prudent
to provide basic
procedural
protections that
are likely to meet
a court’s
requirements.

■

Notify the inmate of the
proposed placement. In the
notice, explain the reason
for the placement.

■

Give the inmate an opportunity to respond to the
notice in an informal, nonadversarial meeting with
officials.

■

Base placement decisions
on reliably determined facts. In the nonadversarial context of the placement decision, “reliably determined” focuses more on the
institution’s investigatory process than on res-

If a corrections agency has
such procedures in place, it has
two choices in responding to
lawsuits that claim deprivation
of due process in segregation
placement and retention decisions. It can argue, under
Sandin, that no due process
protections apply. Or it can
point to its procedures as proof
that protections were provided.
Even if the courts finally agree
that no due process requirements apply to these
decisions, prisons will benefit from having a systematic, fair, fact-based decisionmaking process.

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63

7

Access to the Courts

T

he ECU population includes the most violent inmates in the prison system. It may
also include the most litigious. Every
aspect of the ECU’s operations may be targeted in
lawsuits filed by inmates, without the aid of a
lawyer. One issue ECU inmates are likely to raise
is whether available resources give them meaningful access to the courts. This chapter reviews
Supreme Court decisions concerning inmate
access to the courts, how those decisions have
affected inmate litigation, and implications for
ECU operations (including book paging/delivery
systems).

Supreme Court Rulings
In 1977, the Supreme Court said in Bounds v.
Smith that prison officials have an affirmative
duty to provide inmates, including those in segregation, with resources to allow them “a reliably
adequate opportunity to present claimed violations of fundamental constitutional rights to the
courts.”123 The Court reaffirmed this principle in
1996, in Lewis v. Casey.124
123
124

Bounds v. Smith, 430 U.S. 817 (1977).
Lewis v. Casey, 518 U.S. 343 (1996).

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Bounds spoke of officials meeting their obligations by providing inmates with adequate law
libraries or assistance from persons trained in the
law. Over the years, most prisons opted to meet
the Bounds duty by providing law libraries. As a
result, the right of access to the courts has come
to mean, in day-to-day practice, the right to a law
library.

years earlier in Bounds—that prison officials have
an affirmative duty to provide some form of assistance to inmates—Lewis also limited the scope of
topics for which assistance must be given. Lewis
encouraged prison officials to experiment with
different ways of assisting inmates and made it
more difficult for inmates to win cases based on
access issues.

The 1996 Lewis decision emphasized that the
right of access to the courts is not a right to a law
library and that an institution does not necessarily
need a library to meet its duties under Bounds. In
an aside not essential to its holding, the Court
also noted that for inmates who cannot read, a
library alone does not meet the Bounds-Lewis
obligations.

Limits on the Scope of Legal Assistance

Providing adequate access to the courts for
inmates in long-term segregation is particularly
problematic. These inmates cannot congregate in
a library. Book delivery systems are cumbersome
and have been criticized by courts in a number of
pre-Lewis decisions.
Providing assistance from “persons trained in the
law” also is problematic in ECUs. Allowing other
inmates to assist ECU inmates presents potential
security problems and may not be feasible if the
ECU is a free-standing unit. Hiring lawyers, law
students, or lawyers to provide assistance may be
expensive and presents a variety of problems.

The Institution’s Obligations
Under Lewis
The rules governing inmate access to the courts
changed somewhat with the Supreme Court’s
1996 decision in Lewis. Although Lewis reaffirmed the basic principle the Court stated 19

Under Lewis, the inmate’s right extends only
to assistance in direct or collateral attacks on
convictions (criminal appeals and habeas corpus
petitions) and challenges to conditions of confinement (traditional “inmate rights” issues). The
right does not extend to other types of legal proceedings, such as family law issues. The right
applies only to nonfrivolous claims, although the
Court does not suggest how a prison might determine whether a claim is legally frivolous. (For
this reason, it is very risky for an institution to
attempt to evaluate the potential merits of an
inmate’s claim in determining whether to provide
assistance.)
Language in the Lewis opinion suggests that institutions need provide assistance only in the initial
phase of litigation (presenting the claim to the
court), not necessarily in subsequent phases (trial,
appeal, etc.) of litigating a claim to its conclusion.
Because this is a very conservative reading of the
opinion, it may not be prudent for institutions to
base their access policy on the assumption that
their duty ends once an inmate successfully files a
complaint.
However, in one pre-Lewis case, the court
approved an access plan in which the corrections
department contracted with a lawyer to represent
inmates and specified in the contract that the

lawyer could not represent inmates beyond the filing of the complaint. In that case, inmates did not
have access to a law library.125 A post-Lewis decision from the Seventh Circuit includes language
that suggests a similarly narrow reading of access
rights.126
“Actual-Injury” Requirement for
Access Litigation
Under Lewis, it is difficult for inmates to successfully pursue access claims because to have standing to raise such claims in court, they must
demonstrate that they were prejudiced in some
way by the alleged lack of legal resources. An
inmate must show that deficiencies in legal
resources either (1) caused dismissal of a claim
on technical grounds or (2) made it impossible
even to file a claim. Many post-Lewis cases have

been dismissed because the inmate could not
meet the actual-injury requirement; in these cases,
the courts never actually assessed the adequacy of
the prison’s legal resources. Two case studies
illustrate the effects of the Lewis actual-injury
requirement on access litigation (see sidebar
“Effects of the Actual-Injury Requirements:
Case Studies”).
Although the actual-injury requirement may make
it more difficult for inmates to win access claims,
that alone is not justification for institutions to
reduce legal assistance. The dismissals of major
lawsuits such as Klinger and Walters may have
been primarily a matter of timing; i.e., the new
Lewis actual-injury rule was applied to facts
developed in trials that took place prior to Lewis,
when lawyers were not attempting to prove that

Effects of the Actual-Injury Requirement: Case Studies
Walters v. Edgar. In this classic pre-Lewis access-to-

upheld on appeal. These results do not constitute

courts claim, a class of inmates in long-term segre-

a judicial seal of approval for paging systems; they

gation in an Illinois prison alleged inadequate

mean only that the named plaintiffs could not

access to legal materials. The prison used a paging

show injury.

system, in which the inmates could request materi-

Klinger v. Department of Corrections. In this case,

als from a central library. The district court found

which involved inmates at a women’s prison in

the legal resources inadequate under the tradi-

Nebraska, the actual-injury requirement under

tional Bounds test.a However, knowing that Lewis

Lewis produced even more dramatic results. The

was pending in the Supreme Court, the district

court found a “complete and systemic denial of

court postponed its final order. After Lewis was

access to a law library or legal assistance prior to

issued, the court decided that none of the named

January 1989” but dismissed the inmates’ claim

plaintiffs met the actual injury test and dismissed

“because none of the inmates suffered actual

the case, despite the inadequacies it had found in

injury or prejudice as a result of that denial of

the prison’s paging system. The dismissal was

access.”b

aWalters v. Edgar, 900 F. Supp. 197 (N.D. Ill. 1995).
bKlinger v. Department of Corrections, 107 F.3d 609, 617 (8th Cir. 1997).

125
126

Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).
Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).

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specific inmates suffered from inadequate legal
resources. Proof of actual injury in such cases,
although perhaps difficult to come by, at least
theoretically exists.127
Experimenting With Alternative Legal
Resource Programs
In both Bounds and Lewis, the Supreme Court
encourages corrections agencies to experiment
with different ways of providing access to the
courts that would be valid unless an inmate
proved the system was frustrating or impeded a
nonfrivolous claim. Portions of Lewis suggest
that the traditional, large law library may not be
required: “One such experiment, for example,
might replace libraries with some minimal access
to legal advice and a system of court-provided
forms…forms that asked the inmates to provide
only the facts and not to attempt any legal
analysis.”128
Another experiment might include building a system of legal resources for inmates around CD–
ROMs or Internet-based computer technology.
As with any approach that assumes an inmate
can read, a computer-based system will not serve
those who cannot. Whether inmates have the
knowledge and skill to use the technology might
also be an issue. Of course, any process that
involves the Internet requires safeguards to ensure
that inmates cannot roam the Internet freely.

Paging Systems
Historically, the paging system was probably the
most common approach to providing segregated

inmates with access to the courts. Inmates
requested limited amounts of materials from a
large law library. If available, the materials or
copies were delivered, and when those were
returned, the inmate could make another request.
Even when paging systems worked as designed,
they made major legal research a long, tedious
effort.
Many pre-Lewis access-to-courts cases examined
paging systems and, in general, found them
unconstitutional. Walters v. Edgar, discussed earlier, is typical of these cases.129 (In Walters, the
court found the paging system inadequate before
ultimately dismissing the case under the Lewis
actual-injury requirement.)
Problems with paging/book delivery systems for
segregation units include the following:
■

Inmates do not know what is available in the
main library.

■

Inmates cannot get enough books at one time
to research an issue.

■

The system fails to work as designed (e.g.,
requests are lost, deliveries are late, materials
are unavailable).

■

Literacy or language barriers prevent some
inmates from using lawbooks.

In light of the Lewis actual-injury requirement
and the Supreme Court’s encouragement of
experimentation (see earlier discussions in this
chapter), the courts may have to take a second

On the other hand, the author knows of one long-running access-to-courts class action that plaintiffs voluntarily dismissed because they found no inmates who had suffered an actual injury and could, therefore, represent the class of
inmates.
128
Lewis, 518 U.S. at 352.
129
Walters, 900 F. Supp. 197, reversed on other grounds, Walters, 163 F.3d 430. See also Abdul-Akbar v. Watson, 4 F.3d
195 (3d Cir. 1993), which held that the adequacy of a satellite library depends on other factors such as paralegal services;
and Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990), which held that a combination of satellite libraries and inmate
law clerks provides adequate access to courts.
127

look at paging/delivery systems for inmates
unable to pursue it for lack of ability to use availhoused in segregated units. In one post-Lewis
able legal materials. The solution is some form of
assistance from persons trained in the law.
decision, a district court flatly rejected the claim
that an inmate had a right of
In the general prison populaphysical access to the library;
tion, an inmate who is unable
the court noted that the inmate
to use available legal materials
could obtain extensive materiOne
lesson
to
be
may be able to get help from
als and that his well-drawn
learned
from
early
another inmate, either a “jailcomplaint and various other
litigation involving
house lawyer” or, in some
motions indicated that the
paging/delivery
jurisdictions, a trained inmate
paging/delivery system caused
law clerk. However, in an ECU
systems is that
no actual injury.130
setting, these forms of inmateinstitutions must
to-inmate assistance could
One lesson to be learned from
be able to
raise serious security concerns
early litigation involving
demonstrate that
and may not be feasible.
paging/delivery systems is that
the systems work.
Allowing one ECU inmate to
institutions must be able to
assist another may also raise
demonstrate that the systems
concerns for the administrator.
work. They must show that
inmates can make requests,
The “cleanest” way of delivering legal services
receive materials in a timely fashion, and get
for inmates unable to use written legal materials
enough material to conduct a reasonable level of
is through lawyers or paralegals.131 The important
research.
point is that some form of assistance from persons trained in the law will be necessary for at
least some inmates housed in ECUs.
Inmates Who Are Unable To

Use Legal Materials
An effective paging/delivery system may suffice
for inmates who can read and understand library
materials. However, exclusive reliance on any
form of library system, which ultimately depends
on the inmate’s ability to read and understand relatively complicated material, remains problematic
for illiterate inmates, inmates who cannot read
English, and inmates who have very limited intellectual capacity. Sooner or later, an ECU inmate
will have a valid, nonfrivolous claim but will be

Summary
ECU inmates have the same fundamental right of
access to the courts as other inmates. ECU
inmates tend to be very litigious, and institutions
should expect them to challenge any program that
does not provide full access to a complete law
library or extensive assistance from persons
trained in the law. However, under the Supreme
Court’s 1996 decision in Lewis v. Casey, inmates

Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico 1997). See also Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.
Ind. 1996): “Standing alone, delay and inconvenience do not rise to the level of a constitutional deficiency.”
131
See Carper, 54F. 3d 613.
130

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must demonstrate actual injury before they can
have standing to raise an access-to-courts claim.

who cannot read English; these inmates require
some form of legal advice.

The prison’s affirmative duty is to provide some
level and form of resources to support, in a meaningful way, inmates’ right of access to the courts.
Traditional paging systems, once generally found
inadequate by the courts, may pass muster under
Lewis if the institution can demonstrate that the
system works properly. However, any librarybased system does not meet the needs of inmates

In Lewis, the Supreme Court invites prison
administrators to experiment with how they fulfill
their duty to provide meaningful legal resources.
Such experiments might include systems that use
CD–ROM or Internet technology. Any system a
prison uses to provide legal resources in the ECU
is sure to be challenged at some point.

8

The First Amendment:
Religion, Speech,
and the Press
Among the losses inmates face when they enter
an ECU are those associated with reduced opportunities to engage in religious practices and
reduced access to mail and publications. At least
to some degree, such reductions raise questions
under the First Amendment. This chapter looks at
the Supreme Court’s test for evaluating restrictions of First Amendment rights and then focuses
on legal considerations related to inmates’ religious practices.

Supreme Court Test for
Evaluating First Amendment
Restrictions

In the 1987 case Turner v. Safely, the Supreme
Court held that prison officials can restrict an
inmate’s First Amendment rights if the restriction
is reasonably related to a legitimate penological
interest, such as security, order, safety, or rehabilitation.132 Turner requires the courts to ask four
questions when evaluating a restriction of a First
Amendment right:
132

Turner v. Safely, 482 U.S. 78 (1987).

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1. Is there a valid, rational connection between
the restriction and a legitimate penological
interest? Example: Does not allowing ECU
inmates to attend group religious services further a security interest of the prison?
2. Does the inmate have alternative ways to
exercise the right in question? Example: Can
inmates who may not attend group religious
services exercise their religious beliefs in
their cells?
3. If the inmate’s request were accommodated,
what would be the impact on staff, inmates,
and institution resources. Example: Would
allowing an ECU inmate to attend group
religious services create security problems
because the inmate would need to be moved
and because of the group setting?
4. Is there an obvious, readily available alternative to restricting the First Amendment right
in question? (If the answer is yes, the institution’s action probably is not reasonable but is
in fact an exaggerated response to a concern.)
Courts rarely strike down a restriction on
First Amendment-protected activity on this
ground.
In applying this four-part test, courts are expected
to show substantial deference to the judgment
calls of prison officials, especially in regard to
items 1 and 3. So, for example, if an official says
that lack of a particular restriction “might” create
a security problem, a court will generally defer to
that judgment and uphold the challenged restriction under the Turner test.

Meeting the demands of the Turner test is not
difficult, especially when dealing with inmates
who are the highest security risks in a prison system. However, if administrators impose a First
Amendment restriction, the institution bears the
burden of justifying the restriction under the fourpart Turner test.
Applying the Turner test, the Eighth Circuit
found no First Amendment violation in prohibiting a Native American inmate from having ceremonial pipes, medicine bags, eagle claws, and
altar stones in administrative segregation.133 In a
similar case, a district court upheld a rule that
prohibited inmates in segregation from attending
group religious services.134 Both of these cases
involved clear security concerns.
In the absence of clear security concerns, however, First Amendment restrictions may be more difficult to defend. For example, courts recently
found that denial of a Kosher diet to Jewish
inmates is not justifiable under the Turner test.135
These cases dealt with general population inmates
and considered only Kosher diets (not religious
diets in general). Two of the cases (Johnson v.
Horn and Ashelman v. Wawrzasek) acknowledge
that a prison has a legitimate interest in a simplified food service system. Although it could be
argued that the impact of these cases will be limited and should not affect ECU inmates, a better
reading is that the cases constitute a forewarning
about restrictions on religious diets. Corrections
officials should examine their policies in the context of this growing body of case law to determine what, if any, changes should be made with
regard to ECU inmates’ religious diets.

Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).
Germunde v. Cook, 684 F. Supp. 255 (D. Utah 1988).
135
Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), in which prison officials conceded that inmates were entitled to some
form of Kosher diet; Ashelman v. Wawrzasek, 111 F.3d 647 (9th Cir. 1997); and Bass v. Coughlin, 976 F.3d 98
(2d Cir. 1992). However see Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987), which held that a pork-free diet
sufficiently met a Muslim inmate’s dietary concerns.
133
134

The Religious Land Use and
Institutionalized Persons Act
In the summer of 2000, Congress passed the
Religious Land Use and Institutionalized Persons
Act (RLUIPA), 42 U.S.C. § 2000cc–1. This
statute, which for corrections purposes is essentially the same as the Religious Freedom Restoration Act of 1993, attempts to replace the
institution-friendly Turner test for evaluating
restrictions on First Amendment religious rights
with a more demanding test for evaluating restrictions on religious practices specifically. The provisions of RLUIPA apply to a prison if it or the
corrections department of which it is a part
receives any federal funding, which means it
will apply to virtually all ECUs.
Under RLUIPA, any “substantial burden” on an
inmate’s practice of religion must further a “compelling governmental interest” and be the “least
restrictive” means of doing so. Although courts
will generally accept security as a compelling
governmental interest for a restriction, the “least
restrictive” test invites a court to second-guess a
particular restriction and ask why some other
alternative was not chosen.
Restrictions on religious practices in high-security
units are commonplace. Perhaps because these
restrictions could easily be defended under the
Turner test, their validity has almost become
taken for granted. RLUIPA may force reexamination of many of these restrictions.
In RLUIPA, Congress attempted to avoid the flaw
the Supreme Court found in the Religious Freedom Restoration Act when it declared that statute

unconstitutional as applied to state and local governments.136 At the time this monograph was written, federal appeals courts disagreed as to
whether RLUIPA violates the establishment
clause of the First Amendment.137

Inmate Religious Practices
Not Mandated by Faith
Faced with an inmate request for some type of
special privilege related to a religious practice,
corrections officials naturally tend to ask leaders
of the inmate’s faith whether the faith requires
believers to engage in that practice. If the answer
is no, that the practice is left to the individual,
officials are likely to deny the request.
Some courts have overruled such denials, saying
that First Amendment protections do not hinge on
whether a particular practice is mandated by the
inmate’s faith.138 Levitan v. Ashcroft, cited in footnote 138, provides a good example. An inmate at
the Federal Prison Camp in Pensacola, Florida,
wanted to have wine as part of the Catholic sacrament of communion. However, a change in the
Federal Bureau of Prisons policy forbade inmates’ use of wine in communion. The district
court upheld the no-wine policy, saying that wine
was not required by the Catholic Church. The
court of appeals reversed the decision, saying that
if the inmate’s belief (in the importance of having
wine, not just grape juice) was sincere and based
on his religious convictions, that was enough to
trigger First Amendment protections.
The Levitan decision does not say that inmates
have a constitutional right to have wine with

City of Boerne v. Flores, 521 U.S. 507 (1997).
Decisions supporting the law include Charles v. Verhagen, 348 F.3d 610 (7th Cir. 2003) and Madison v. Riter, 355
F.3d 310 (4th Cir. 2003). Taking the opposite view is Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003). More decisions
about the law probably will have been reached by the time this monograph is published, and a Supreme Court review
seems both inevitable and necessary.
138
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002); LaFevers v. Saffle, 936 F.3d 1117 (10th Cir. 1991).
136
137

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communion. It says that
although the Bureau’s reason
for denying the wine request
was not valid, the restriction
still might be defensible under
the Turner test (i.e., whether
the restriction is reasonably
related to a legitimate penological interest). If the inmate
were to raise a RLUIPA issue
(see previous section), the
restriction would be analyzed
under the RLUIPA test, which
is more demanding than the
Turner test.

Sincerity of
Beliefs
Only in the clearest
circumstances
should prison
officials deny a
request on the basis
that an inmate’s
beliefs are insincere.

The point of this discussion is not whether
inmates have a right to wine with communion.
The point is that if a practice has even the slightest support from an inmate’s faith, courts may
extend First Amendment protections to the practice and require officials to justify restricting or
banning it, through either the Turner test or the
RLUIPA test. Knee-jerk denials of requests simply because they are not required by the inmate’s
faith may find little favor with a reviewing court.
If officials want to raise the “it isn’t required”
argument when an inmate challenges their denial
of a request, they should also present arguments
based on the Turner and/or RLUIPA tests, indicating, for example, how the restriction addresses
legitimate security concerns and why a less
restrictive option is not viable. Because of the
ECU’s very substantial security concerns, such
arguments have a better chance of success than an
“it isn’t required” defense.
139

Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).

The First Amendment extends
protections only to sincerely
held religious beliefs. If the
inmate is not sincere about his
religious beliefs and practices,
then the institution has no duty
to accommodate them, and a
court will not ask the institution to show a legitimate reason for imposing bans or
restrictions on them.

It is, however, difficult to mount a successful
defense based on the premise that an inmate’s
religious beliefs are not sincerely held. Neither a
long criminal history nor a notorious institutional
record shows insincerity, although both could be
relevant to the inquiry. That an inmate does not
follow every tenet of a faith does not necessarily
show insincerity.139
In assessing an inmate’s sincerity, officials should
keep in mind that the seclusion and idleness of
the ECU may lead some inmates to examine and
renew their religious beliefs or embrace new
belief systems. Others may simply want to participate in one of the few programs the ECU offers,
to fill time. Some may look at religious issues as
fodder for litigation.
Convincing a court that an inmate’s religious
beliefs are not sincere probably will require a relatively complicated showing of facts. The burden

will be on the prison officials to convince the
court that the inmate is not sincere in his beliefs.
Only in the clearest circumstances should prison
officials deny a request on the basis that an inmate’s beliefs are insincere. As with the “it isn’t
required” defense discussed above, the “lack of
sincerity” defense should, if possible, be accompanied by arguments based on the Turner and/or
RLUIPA tests.

Summary
The restrictive environment of the ECU can raise
First Amendment issues. In considering inmates’
demands regarding religious and other types of
activities, corrections officials should be aware of
how the courts may review their response.

The Supreme Court, in Turner v. Safely, defined
a four-part test for evaluating whether a particular
First Amendment restriction is justified. Institutions have not found it difficult to meet this test,
which basically requires a reasonable connection
between a restriction (e.g., not allowing ECU
inmates to attend group religious services) and a
legitimate penological interest (e.g., security).
When restrictions on religious practices are at
issue, institutions may also need to show why a
less restrictive alternative was not possible. In
general, an institution’s defense of a challenged
restriction should not rely solely on an argument
that a particular practice is not mandated by the
inmate’s faith or that the inmate’s religious beliefs
are not sincerely held.

The First Amendment: Religion, Speech, and the Press

75

Closing Thoughts

77

Closing Thoughts

T

he concept of an extended control unit—
the “supermax prison”—is now embedded in American corrections. Planning for
the creation of an ECU is an experience that still
awaits many agency officials. But for those currently responsible for operating ECUs, a major
challenge lies in recognizing just how many legal
issues can arise and supervising operations
accordingly.

Based on a limited body of case law, it can be
concluded that the most significant legal issues
facing ECUs are those concerning inmates who
are mentally ill or whose behavior suggests they
may be mentally ill. Are there some inmates who
should not be placed in an ECU? If so, who are
they and how can they be screened out? Are there
others whose mental status is harmed by living in
the ECU? If so, how can they be identified and
moved elsewhere?
The issue then moves beyond the scope of this
monograph. Where does a prison system place
inmates who (1) present a high security risk but

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

78
(2) cannot be placed or held in
an ECU? Must a new type of
high-security mental health unit
be developed? Can ECU operations be modified to accommodate some or all of this (as yet
somewhat vaguely defined)
group of inmates?

■ Careful development of

Certainly ECU
inmates and the
management
strategies used to
control them give
rise to a prison
system’s most
concentrated,
intense legal
concerns.

Even setting these issues aside,
ECUs may be the most difficult
type of prison to operate, given
the nature of the inmates typically placed in them. Certainly
ECU inmates and the management strategies used to control them give rise to a
prison system’s most concentrated, intense legal
concerns.

Services that are especially critical from a legal
perspective—such as those related to medical and
mental health care and access to the courts—are
difficult to deliver in ECUs. Use of force is an
ever-present issue in the ECU, where inmate
behaviors test officers’ professionalism. In the
absence of close supervision and review, use of
force can deteriorate into endemic abuse of force.
The keys to avoiding legal pitfalls and reducing
liability exposure are the same in the ECU as anywhere else in the prison system:
■

An informed assessment of the needs and
characteristics of the target population.

■

A clearly defined mission and a comprehensive plan of operation.

policies and procedures,
with a close eye to legal
issues.
■ Funding and staffing com-

mensurate with the
identified needs and
mission.
■ Training to promote a skill-

ful and knowledgeable
workforce.
■

Perhaps most importantly:
commitment on the part of
supervisors and managers—from sergeant to warden to agency head—to ensuring humane and
legal operations.
If these factors are ignored—especially if supervision and management are lax—the ECU can
become fertile ground for destructive interactions
between staff and inmates. The result will be
intervention by the courts.
In seeking to minimize exposure to liability,
should corrections agencies look beyond these
traditional, internal approaches and consider
external sources of assistance? One possibility
would be to solicit an outside review—perhaps
from professionals who operate what the field
recognizes to be top-notch ECUs—that asks “how
are we doing?” Another would be to invite mental
health experts into the facility to evaluate critical
inmate mental health issues and perhaps to conduct formal peer reviews of mental health-related
decisions.

Periodic external reviews of ECU operations offer
an important advantage: perspective. Problems
can develop slowly and incrementally. What
someone looking at the facility for the first time
identifies as a fairly obvious problem may be
essentially invisible to those who work there

because the problem crept insidiously into operations and became part of the institutional culture.
The external review may be able to identify
“problem creep” and give ECU managers important feedback in time to address potential constitutional issues before they reach litigation.

Closing Thoughts

79

Table of Cases

81

Table of Cases

Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir.
1993).
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir.
1996).
Ashelman v. Wawrzasek, 111 F.3d 674 (9th Cir.
1997).
Austin v. Wilkinson, 189 F. Supp. 2d 719 (N.D.
Ohio 2002).
Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D.
Ohio 2002).
Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).
Bass v. Coughlin, 976 F.3d 98 (2d Cir. 1992).
Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).
Bounds v. Smith, 430 U.S. 817 (1977).
Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).
Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987).
Chambers v. Riveland, 189 F.3d 472, 1999 WL
595366 (9th Cir. 1999, unpublished).

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

82
Charles v. Verhagen, 348 F.3d 610 (7th Cir.
2003).

Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1, 16 (1979).

City of Boerne v. Flores, 521 U.S. 507 (1997).

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997).

Colon v. Howard, 215 F.3d 227 (2d Cir. 2000).
Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988).
Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz.
2002).

Helling v. McKinney, 509 U.S. 2475 (1993).

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).

Hemphill v. Delo, 105 F.3d 391 (8th Cir. 1997).
Hewitt v. Helms, 459 U.S. 460 (1983).

Davenport v. DeRobertis, 653 F. Supp. 649 (N.D.
Ill. 1987).
Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y.
1996).
DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.
2001).
Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico
1997).
Doe v. Delie, 257 F.3d 309 (3d Cir. 2001).
Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994).
Estelle v. Gamble, 429 U.S. 97 (1976).

Hill v. DeKalb Regional Youth Detention Center,
40 F.3d 1176 (11th Cir. 1994).
Hudson v. McMillian, 503 U.S. 1 (1992).
Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998).
Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir.
1989).
Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.
Ind. 1996).
Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D.
Wisc. 2001).
Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal.
1966).

Farmer v. Brennan, 511 U.S. 825 (1994).
Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002).
Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL
21462603 (7th Cir. 2003).
Gaudreault v. Municipality of Salem, 923 F.2d
203 (1st Cir. 1990).
Germunde v. Cook, 684 F. Supp. 255 (D. Utah
1988).

Klinger v. Department of Corrections, 107 F.3d
609 (8th Cir. 1997).
Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz.
2001).
LaFevers v. Saffle, 936 F.3d 1117 (10th Cir.
1991).
LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).

Giampetruzzi v. Malcom, 406 F. Supp. 836
(S.D.N.Y. 1975).

Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir.
2002).

Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995),
vacated on other grounds, 117 S. Ct. 1840
(1997).

Lewis v. Casey, 518 U.S. 343 (1996).
Luken v. Scott, 71 F.3d 192 (5th Cir. 1995).

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal.
1995).
Martinelli v. Dugger, 817 F.2d 1499 (11th Cir.
1987).

Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 454
(1985).
Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994).
Talley v. Hesse, 91 F.3d 1411 (10th Cir. 1996).

May v. Baldwin, 109 F.3d 557 (9th Cir. 1997).
McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.)
2001).

Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va.
2000).
Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001).

McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y.
1998).

Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997).

McCollum v. Miller, 695 F.2d 1044 (7th Cir.
1982).

Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C.
Cal. 1984).

McGuckin v. Smith, 974 F.2d 1050 (9th Cir.
1992).

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.
1986).

Mitchell v. Maynard, 80 F.3d 1433 (10th Cir.
1996).

Toussaint v. McCarthy, 926 F.2d 800 (9th Cir.
1990).
Turner v. Safely, 482 U.S. 78 (1987).

Nelson v. Collins, 455 F. Supp. 727 (M.D. Md.
1978).

Vitek v. Jones, 445 U.S. 480 (1980).

Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997).
Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999).

Walters v. Edgar, 900 F. Supp. 197 (N.D. Ill.
1995).
Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).

Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).
Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).
Sandin v. Conner, 515 U.S. 472 (1995).
Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997).
Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy.
2002).

Washington v. Harper, 494 U.S. 210 (1990).
Wilson v. Seiter, 501 U.S. 294 (1991).
Wolff v. McDonnell, 418 U.S. 539 (1974).
Wood v. Housewright, 900 F.2d 1332 (9th Cir.
1990).
Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal.
1976).

Table of Cases

83

Table of Authorities

85

Table of Authorities

Cohen, Fred. 1998. The Mentally Disordered
Inmate and the Law. Kingston, NJ: Civic
Research Institute.
Collins, William C. 1997. A Practical Guide to
Inmate Discipline, 2d ed. Kingston, NJ: Civic
Research Institute.
Grann, David. 2003. “The Brand.” The New
Yorker, February 16, p. 157.
Grassian, Stuart. 1983. “Psychopathological
Effects of Solitary Confinement.” American
Journal of Psychiatry 140:1450–1454.
Grassian, Stuart, and Friedman, Nancy. 1986.
“Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement.”
International Journal of Law and Psychiatry
8:49–75.
Haney, Craig, and Lynch, Mona. 1997. “Regulating Prisons of the Future: A Psychological
Analysis of Supermax and Solitary Confinement.”
NYU Review of Law and Social Change 23:477.

Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

86
Human Rights Watch. 1997. Cold Storage,
Super-Maximum Security Confinement in Indiana. New York, NY: Human Rights Watch.
King, Roy D. 1999. “The Rise and Rise of
Supermax: An American Solution in Search of a
Problem.” Punishment and Society 1(2):163–184.
Kupers, Terry A. 1998. “The SHU Syndrome
and Community Mental Health.” Community
Psychiatrist 12(3), summer.
National Institute of Corrections (NIC). 1997.
Supermax Housing: A Survey of Current Practice.
Washington, DC: U.S. Department of Justice,
NIC. Special Issues in Corrections, March.
Riveland, Chase. 1999. Supermax Prisons:
Overview and General Considerations.
Washington, DC: U.S. Department of Justice,
National Institute of Corrections.

Stoner, John W. n.d. Analysis of mental health
services and treatment of mentally ill inmates at
Supermax Correctional Institution (SMCI),
Boscobel, Wisconsin. Unpublished document
submitted in litigation.
Stoner, John W. 2002. Management of Violent,
High Risk, and Supermax Offenders. Washington,
DC: U.S. Department of Justice, National
Institute of Corrections. Training Program.
Terrell, Steve. 2003. “Corrections Department
Settles Prison Lawsuit,” The New Mexican,
May 22.

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