In the Matter of Humanity: Against Solitary Confinement

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In the Matter of Humanity: Against Solitary Confinement

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness—That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufference of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present [government] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states." (1)

Underlying the Eighth Amendment is a fundamental premise that prisoners are not to be treated as less than human beings. (2) The amendment is phrased in general terms rather than specific ones so that while the underlying principle remains constant in its essentials, the precise standards by which courts measure compliance with it do not. (3) "It follows that when confronting the question whether penal confinement in all its dimensions is consistent with constitutional rule, the courts judgment must be informed by the current and enlightened scientific opinion as to the conditions necessary to insure good physical and mental health for prisoners." (4)

"The content of the Eighth Amendment is not static but must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, proscribe[s] more than physically barbarous punishments. It prohibits penalties that are grossly disproportionate to the offense, as well as those that transgress today's broad and idealistic concepts of dignity, civilized standards, humanity, and decency. (5)" Thus, conditions which may have been acceptable long ago may be considered unnecessarily cruel in light of our growing understanding of human needs and the changing norms of our society." (6) "The conditions of which prisoners are housed, like the poverty line, is a function of society's standard of living. As that standard rises, the standard of minimum decency of prison conditions, like the poverty line, rises too." (7)

The State of Georgia's Department of Corrections (GDC), a subdivision of the Georgia Government, has fairly recently implemented a statewide long-term segregation program officially labeled the Tier II Administrative Segregation Program (Tier II Program), initially devised and sanctioned by former GDC commissioner, Brian Owens, revised and further developed by the current GDC Commissioner, Homer Bryson, and codified under formal Departmental policy as Standard Operating Procedure II B09-0003 (Hereafter "Tier II Program Policy"). The totality of the practices characterizing confinement in the Tier II Program encroaches upon practically every civil right retained by prisoners by virtue of the state and federal constitutions, and amount to a collection of punitive procedures calculated to inflict severe physical and/or mental pain or suffering and constitutes TORTURE in violation of federal statutory law (8), as well as deliberate TORTURE perpetrated under color of official authority in violation of universally accepted norms of the international law of human rights, i.e., the law of nations.

The general restrictions of confinement conditions typifying a prisoner's confinement in the Tier II Program include mandated solitary confinement (9) for twenty-four hours a day; the utilization of isolation cells (akin to sensory deprivation (10) tanks) intentionally stripped of their furnishings (including even the wall-mounted mirrors so that the prisoner is deprived of the sight of his own reflection); the deprivation of virtually all human contact and environmental or sensory stimuli due to not only the prisoner's solitary confinement, but also the metal strips welded to the window on the doors of the cell in the Tier II Program housing units and metal coverings over the windows located at the back of those cells which are intended to prevent the prisoner from being able to see outside the cell itself, the limitations on phone calls and visitations (all visits for Tier II situated prisoners are non-contact), the denial of access to group religious worship services, the general and law libraries, educational and vocational programs, televisions, radios and other information dissemination medium, and the restrictions on any personal photos, books of any nature, magazines, newspapers, periodicals, religious literature, educational and legal materials, etc. Moreover, a prisoner, upon being assigned to the tier II program, is also denied all access to the prison commissary, including the ability to purchase hygiene related items, and is deprived of virtually all of his personal property. And Tier II situated prisoners are subjected to extreme, harrassive, if not absurd, security measures.

For example, prisoners in the Tier II Program are, with increasing frequencies, being made to strip completely naked whenever they're required to leave their cells for any reason, such as for a brief trip to the in-house medical unit, or to be escorted to the shower. Once naked, they are then instructed to turn their back to instructor, bend forward at the waist "at a ninety degree angle," reach backward—while still bent forward—and spread their buttocks apart so as to provide the instructor with a view of the inside of their rectum. Refusal usually results in a brutal assault involving various uses of force (e.g. physical, chemical agents, tasers/stun guns); it always results in the denial of some basic human necessity and right, such as showers or opportunities for out-of-cell exercise. And when such incidents occur, prisoners are afterwards denied the proper mediums through which the report these nature of abuses.

Now, to return from our digression, a prisoner's assignment to the Tier II Program—and, therefore, his subjection to the conditions and restrictions by which his confinement in Tier II Program housing units is characterized—is of indefinite duration. We deduce this not only from personal experience, but because the Tier II Program Policy has, throughout its existence, contained a clause limiting a prisoner's assignment to the Tier II Program to 24 months maximum. However, the latest revision—in fact, the third revision—of the Tier II Program Policy excludes this proviso. The nullification of this stipulation is, indeed, the only change in the latest "revision" of Tier II Program Policy; everything else remained the same verbatim from the second revised version.

Tier II Program Policy explicitly states that the Tier II Program "is not a punitive measure." (11) however, this same Tier II Program Policy squarely contradicts that statement revealing that prisoners are assigned to Tier II Program "for long-term disciplinary sanctions." (12) Therefore, although it is dubbed "administrative segregation"—which, in legal theory, isn't supposed to be punitive in nature (13)—the Tier II Program is actually punitive isolation, or, euphemistically, disciplinary segregation. We suppose it worth mentioning here that the restrictions and conditions characterizing confinement in the Tier II Program are significantly more severe in degree than those characterizing the punitive measures defined by the GDC as "disciplinary segregation" and "high max", and admittedly employed by it as a means to discipline or otherwise punish prisoners.

The Tier II Program is also, in word and practice, a compulsory behavior modification (14) program. (15) Upon placement of a prisoner in a Tier II Program housing unit, that prisoner is isolated, stripped all personal property, deprived of virtually all contact with other people and environmental or sensory stimuli, and not allowed any reading material, including religious materials. It is under these circumstances that positive and negative reinforcements are applied on the prisoner to recondition his "behavior" and "attitude" to be submissive and subservient towards his captors. This procedure goes on for as long as necessary until the prisoner "breaks". Of course, the prisoner is subject for reconditioning any time the prisoner authorities may feel they are losing cognitive influence over the brainwashed "inmate". And the language of the Tier II Program Policy clearly indicates that if a prisoner refuses to participate in this dehumanizing ordeal, he will never be considered by prison authorities for reassignment to the general prison population. (16) Additionally, in the Tier II Program, practically all privileges—most of which are available to prisoners in the general population as a matter of right—are allocated on the basis of their behavior.

With regard to the process by which prisoners are assigned to the Tier II Program, the Tier II Program Policy's own procedural safeguards, the observance of which is mandated by the policy before a prisoner can be assigned to the Tier II Program, are, in our experience, never followed. This means that prisoners' assignment to the Tier II Program are based on the arbitrary and capricious whim of prison officials to begin with, and are, consequently, violative of the "touchstone" of due process, which is protection of the individual against arbitrary action of government. (17) We do not hereby imply by pointing out this deficiency that, if procedural safeguards were being observed by prison officials, we would be of the opinion that the state of Georgia would then be authorized to subject its prisoners to type of treatment described herein—and indefinitely at that. It is well-settled by this country's highest legal institution—the Supreme Court of the United States—that certain forms of punishment are considered cruel and an unusual without regard to the conduct for which they are imposed. (18) Thus, "[i]t is not enough to cite a prisoner's history of misconduct and conclude that any measure of restraint is appropriate. Even recalcitrant prisoners are entitled to the minimal civilized measure of life's necessities. The question is whether even inspite of misconduct, the deprivation does so much harm to a prisoner that it is intolerable to the sensibilities of a civilized society no matter what the circumstances." (19)

We have so far labored to paint for you as objective a picture as we could concerning the general restrictions and confinement conditions to which the state of Georgia subjects, at any given time, a considerable portion of its prisoner population, and to which the remainder of that populace may, at any time, be subjected based, again, on the arbitrary and capricious whim of prison authorities, restrictions and confinement conditions that, when taken together, unquestionably constitute punishment beyond the original, ordinary, incarceration of prisoners in the Georgia Prison system. We've said nothing of the other many and diverse cruelties and inhumanities tacitly endorsed, sponsored, and perpetrated in Tier II housing units statewide by an acquiescent state of Georgia, such as the intentional denial of adequate portions of nutritional foods to Tier II situated prisoners as a punitive measure of attempting to modify their behavior through systematic starvation; the excessive vermin infestation in already decrepit Tier II housing units and shower areas; the punitive, retaliatory, and harrassive use of "stripped cell" (20); the inadequate provision of medical care; the general degrading, demeaning, and dehumanizing day to day treatment of prisoners by prison authorities; the punitive, retaliatory, malicious, sadistic, or otherwise unjustified various uses of force (several of which are noted above) being carried out, with impunity, by rogue correctional officers acting under the aegis of both supervisory and administrative prison officials—and we could go on. But our primary intent at this point in our discussion is to reveal that, in addition to the intrinsic egregiousness of the Tier II Program practices, these conditions starkly contrast with those experienced by prisoners in the general prisoner population.

Extolled by Commissioner Bryson as the Tier II Program's ultimate objective, the goal of "preparing [prisoners] for reentry into society." (21) To say that it should be difficult for any rational, civilized mind to conceive of how refusing to allow prisoners to possess photos of their loved ones—and, in the instance of some prisoners, indefinitely—relates in any way to this stated objective would be an understatement, especially when considering the reality that the bulk of prisoners do not even receive visitation due to the discouraging Tier II Program visitation policies. (22) And what can be said of a system that refuses to allow prisoners to possess religious literature?

Prisoners "rehabilitation" has been identified by the Supreme court as a "legitimate" function of a correctional system. (23) It is, in our collective opinion, clear that prisoners required to live under the circumstances expounded herein stand no chance of leaving a correctional institution (24) with a more positive and constructive attitude than the one they brought in. Since the advent of prisoner civil rights litigation, courts in general have repeatedly found that conditions much less severe than the totality of those described herein not only shocks the conscience of reasonably civilized people and offends in a fundamental way contemporary standards of decency, but create an environment that not only makes it impossible for prisoners to rehabilitate themselves but makes dehabilitation inevitable, as well as contributes to their mental and physical degeneration and decreases their chances of successful reintegration upon release. And because in the Tier II Program so many basic aspects of a prisoner's daily life are arbitrarily labeled "privileges," the Tier II Program actually breeds disrespect for authority and fosters a malicious compliance which undermines the relational skills needed for rehabilitation. "Not only is it cruel and unusual punishment to confine a person in an institution under circumstances which increase the likelihood of future confinement, but these same conditions defeat the goal of rehabilitation which officials have set for their institutions." (25)

In the light of the foregoing, what the Tier II Program irrefutably amounts to is a collection of procedures that effectively operate to create societal liabilities of men in a country that propagates to the rest of the world at large that its aggregate citizenry constitutes a "maturing society".

The several definitions of "tyranny" include "cruel and oppressive government or rule; a nation under such cruel and oppressive government; [and/or] cruel, unreasonable, or arbitrary use of power or control." (26) A "tyrant" can be defined as "a cruel and oppressive ruler, [or] a person exercising power or control in a cruel, unreasonable, or arbitrary way." Some of the many definitions of "official" include "of or relating to an authority or public body and its duties, actions, and responsibilities; having the approval or authorization of such a body; [and/or] employed by such a body in a position of authority or trust." (26)

And one of the several definitions of "public" includes "of or provided by the government...." (26) And, according to the Declaration of Independence, the government of this country derives its power from the consent of the governed. (1) Because, as noted above, the judiciary of this country—including the highest judicial authority in the land—are more or less in unanimous agreement that the confinement conditions outlined in this dissertation—singly in some instances, collectively in others—constitutes cruel and unusual punishment in violation of the United States Constitution, this same judiciary has by virtue of its authoritative, decisive holdings condemned as tyrants those public officials employed by the GDC who are perpetrating these unconstitutional conditions as a matter of regulation and practice, and the Georgia government itself as one of Tyranny—the quintessential form of government that preceded the American Revolution and, consequently, the establishment of the United States of America, for that tyranny was intolerable to the founding fathers of this country.

The question which must unavoidably be posed at this point is: Are we men, or are we property; are we men, or are we something less than animals? Even an animal, kept as a pet, must legally be afforded the "minimal civilized measure of life's necessities." If the owner of that animal neglects to do so, he or she stands in violation of the law of this country, and is subject to the penalties concomitant with being adjudicated a criminal, including up to imprisonment. Of how much more valuable—of how much more worth—is sentient, thinking man? And as for those who are not presently incarcerated—including those who never have been—keep in mind that, as inhabitants of this country, you all, too, by that very fact may, at any given time, potentially be susceptible to some form of the type of treatment described herein.

The supreme court said of Nineteenth Century solitary confinement that "[a] considerable number of prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and those in most cases did not recover sufficient mental activity to be of any subsequent service to the community." (27) The pertinent ruling went on to reveal that as far back as the 1850s the prison discipline of solitary confinement was "found to be too severe". (27) Even as far back as Great Britain's George II (1683-1760), solitary confinement was statutorily considered as an additional punishment of such a severe kind that it was spoken of as "a further terror and peculiar mark of infamy" to be added to the punishment of death. (28) In Great Britain, as in other countries, public sentiment revolted against this severity, and during the reign of William IV (1830-7) the additional punishment of solitary confinement was repealed. (28)

If, during the particular period in man's history when public lynchings were sanctioned by the state, the punishment of solitary confinement was considered intolerable to the sensibilities of the society of those days, how is it, then, we find ourselves well into the Twenty-First Century and solitary confinement is not only being rampantly promulgated across the nation as the ideal means of discipline within the correctional context, but those being thrown into these meticulously designed psychological torture chambers are being kept there indefinitely? Is it that the authoritative power of the supreme court's gavel is waning? Or is this cancerous spread of the use of solitary confinement—and the multifarious tortuous practices associated therewith—by prison authorities nationwide are simply the natural result of a contemporary American regime that displays, by the increasing audaciousness of its day to day activities, its insolent disregard for both civil and human rights of its nationwide citizenry?

Even if we were to presume, in yet another alternative, that the living conditions and the overall treatment to which the State of Georgia is currently subjecting its prisoners confined in Tier II Program housing units do parallel with the "evolving standards of decency that mark the progress of a maturing society," such a view would, for reasons already explained above, be inherently contradictory, and, therefore, wholly untenable; for how can the contemporary society of this country on the one hand embrace forms of punishment that were publicly condemned by the society of this very country as early as approximately two centuries ago, and on the other hand still be afforded the high esteem of being considered a "maturing society" marked by "evolving standards of decency"?

Our intent, in composing this letter, is simply to appeal to humanity for both a definition and appraisal of itself. For, based on our collective perspective, far too much time has elapsed since the last time in this land that age-old nemesis of man—that leviathan known as Tyranny—was sternly confronted and called to account by the people for the myriad injustices with which it is infamously known to plague the various human societies, almost incessantly. (May the courageous souls of the patriarchs of this country forever rest in peace!) It has not been our intent to attempt to cast ourselves in the light of the blameless; for we are humans with just as many shortcomings as any other human. It is true we have been adjudicated "criminals" by the Georgia government—albeit the same of which itself has been shown herein to be tyrannical—but we are humans nonetheless.

The late Supreme Court Justice, Thurgood Marshall, once opined: "When the prison gates slam behind [a prisoner], he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment." (29)

In conclusion, "[p]ersons convicted of crimes deserved to be punished, but this does not give the state license to make prisoners objects of unguided behavior control experiments." (30) This is because, as noted above at the onset of our discussion concerning Georgia's treatment of its prisoners, underlying the Eighth Amendment is a fundamental premise that prisoners are not to be treated as less than human beings. (2)

We, the undersigned, are currently contesting our confinement conditions by means of the Federal Judiciary in the cases of Nolley v. Nelson, no. 5:15-CV-75-CAR(M.D.GA, Reid v. Bryson, no. 6:16-CV-116-JRH(S.D.GA), Grazeta v. Bryson, no. 6:16-CV-141-JRH(S.D.GA), and Quintanilla v. Bryson, no. 6:17-CV-4-JRH(S.D.GA), respectively. With the exception of Mr. Reid, we are all currently confined in the Tier II Program housing unit of Smith State Prison in Glennville, Georgia. (31)

Notes: 1. Declaration of Independence, 1776 2. Furman v. Georgia, 408 U.S. 271-73 (1972) 3. See Weems v. United States, 217 U.S. 349, 373 (1910) 4. Spain v. Procunier, 600 F. 2d 189, 200 (9th Cir. 2007) 5. Hutto v. Finney, 437 U.S. 678, 685 (1978) (citations and punctuations omitted) 6. Delaney v. DeTella, 256 F. 3d 679, 683 (7th Cir. 2007) 7. Davenport v. DeRobertis, 844 F. 2d 1310, 1315 (7th Cir. 1988) 8. 18 U.S.C. ยง 2340 9. Solitary Confinement /Noun/ The isolation of a prisoner in a separate cell as punishment. New Oxford American Dictionary, Second Edition, Erin McKean (hereinafter "Oxford") 10. Sensory Deprivation /Noun/ A process by whcih someone is deprived of normal external stimuli such as sight and sound for an extended period of time, especially as an experimental technique in psychology. Oxford 11. Tier II Program Policy, p. 1 12. Ibid, Attachment 4 13. See Sheley v. Dugger, 833 F2d 1420, 1427 (11th Cir. 1987) (Holding that administrative segregation cannot be used as a pretext for punitive confinement). 14. Behavior Modification /Noun/ The alteration of behavioral patterns through the use of such learning techniques and positive or negative reinforcement. Oxford 15. See Tier II Program Policy, pp. 1, 3. 16. Ibid, p. 9 17. Wolff v McDonnell, 418 U.S. 539, 558 (1974) 18. Louisisana Ex Rel Francis v. Resweber, 329 U.S. 459, 464 (1947); In RE Kemmler, 136 U.S. 43436, 446-47 (1890) 19. Scarver v. Litscher, 371 F. Supp. 2d 986, 1003 (W.D. Wis. 2005) (citation omitted) 20. The meaning of "stripped cell" confinement within the Georgia Prison context, despite what the formal governing policy reads, is when a prisoner is completely stripped of all clothing, deprived of all personal and state-issued property (including a mattress, bedding, and toiletries), and, in most instances, reassigned to a designated stripped cell; the sink and toilet in the prisoner's cell is sabotaged by prison authorities so the two are unserviceable for the duration of the prisoner's stripped cell confinement, which is never less than eight hours' duration, and is, quite often prolonged several days. And because there is no formal GDC policy authorizing this particular treatment of a prisoner, the imposition of stripped cell confinement is, in every instance, both arbitrary and capricious. 21. Tier II Program Policy, p.3 22. Prisoners in the Tier II Porgram, depending on their phase level, are permitted between one to three two-hour non-contact visits per month, while prisoners in the general prison population are permitted a minimum of eight six-hour contact visits per month. Moreover, Tier II situated prisoners, unlike general population prisoners who receive their visits on the weekends, are required to preschedule their visits for the early ante meridiem hours of monday through thursday, the difficulty of which is exacerbated by Tier II prisoners excessively repressive circumstances. 23. Pell v. Procunier, 417 U.S. 817, 822-23 (1973) 24. Correctional /Adjective/ Of or relating to the punishment of criminals in a way intended to rectify their behavior. Oxford 25. James v. Wallace, 382 F. Supp. 1177, 1180 n. 4 (M.D. Ala. 1974) 26. Oxford 27. In Re Medley, 134 U.S. 160, 168 (1890) 28. Id. at p, 170 29. Procunier v. Martinez, 416 U.S. 396, 428 (1974) 30. Canterino v. Wilson, 546 F. Supp. 174, 209 (W.D. Ky. 1982) (Vacated and remained on other grounds, 869 F. 2d 948 (6th Cir. 1989))
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