Cañon City, Colorado, is the Solitary Confinement Capital of the Western World. Now, a Small Group Lawyers, Legislators, and Activists Is Challenging This All-American Form of Torture.
Part 1: The Alcatraz of the Rockies
On the wall opposite Laura Rovner’s desk at the University of Denver’s Sturm College of Law is a large framed drawing depicting her as the Angel of Justice. The artist is Thomas Silverstein, a onetime armed robber who is serving multiple life sentences for the murders of two fellow prisoners and a guard. Silverstein made his meticulously detailed ink drawing–which shows a winged Rovner holding a sword, surrounded by slain bodies—in his 7 x 12-foot cell at the notorious United States Penitentiary Administrative Maximum, or ADX, in rural Florence, Colorado. A talented self-taught artist, he has had plenty of time to hone his craft. For the last 27 years, Tommy Silverstein has been literally buried alive—held in an extreme form of solitary confinement in the depths of the federal prison system, under a “no human contact” order. The man who was at one time known as “America’s Most Dangerous Prisoner” is now described, on a web site maintained by his supporters, as “America’s Most Isolated Man.”
He is also Laura Rovner’s client. Rovner, teaching fellow Brittany Glidden, and a group of student attorneys from DU’s Civil Rights Clinic have filed a lawsuit in Federal District Court in Denver, arguing that Silverstein’s 84 square feet of utter and permanent isolation violate the Constitution’s ban on cruel and unusual punishment, as well as its guarantee of due process. The suit is just one of several brought by the clinic on behalf of various men held at ADX and at the nearby state supermax prison. Along with a small handful of other cases in Colorado and around the country, the work of DU’s Civil Rights Clinic represents the leading edge of a legal challenge to solitary confinement. As such, it has the potential to affect the lives of the 100,000 or more prisoners who are held in some form of solitary on any given day in prisons across the United States.
In person, the Angel of Justice is a petite, brown-haired woman who chain-swigs Diet Pepsis and pauses to glance at her computer, which incessantly pings for her attention. Rovner has spent most of her career teaching in civil rights clinics at Georgetown, Syracuse, and North Dakota Law Schools, defending the rights of the deaf and other people with disabilities who had been victimized by discrimination, as well as the rights of prisoners. As she talks about her work at DU, she buzzes with energy, yet chooses her words carefully, measuring them against her clients’ best interests.
After pointing out Silverstein’s drawing, Rovner displays some samples from a pile of hand-knit afghans, scarves, and mittens, also made by Silverstein (and notable for the absence of red, blue, and black, which are banned at ADX as “gang colors”). She shows us a recent photograph, in which Silverstein sports long gray hair and an even longer white beard, his eyes squinting out above weathered cheeks and a friendly smile. Dressed in loose white clothing, he looks like an angelic hipster, maybe an aging yoga teacher, or at worst an over-the-hill biker—certainly not a man more dangerous than the host of convicted terrorists, spies, mobsters, and drug kingpins housed with him at ADX.
Silverstein never killed anyone before he got to prison, and he contends that he did so then only when he felt his own life was threatened. He also says that, nearly three decades later, he is a changed man (he does, in fact, meditate and do yoga in his cell). This transformation is something his attorneys seem to accept, and they make a point of it in their suit. But ultimately, Rovner believes, if the Constitution is to mean anything, then it must apply not just to people and causes that engender sympathy, but to men like Tommy Silverstein, who have been written off as “the worst of the worst.” It must prevail not only in the light of day, but in the fluorescent-lit dungeons of ADX.
If Rovner is determined to defend the Constitutional rights of prisoners held in what is euphemistically called “administrative segregation,” then she has come to the right place. The state of Colorado has become ground zero for the use of solitary confinement—and increasingly, for efforts to challenge it on legal, humanitarian, and even economic grounds. Douglas Wilson, the Colorado State Public Defender, describes solitary confinement as a “hot little issue” in his state, due in part to a highly public battle over the opening of a second costly state supermax, and to a new effort in the state legislature to limit the use of solitary.
At the center of the storm is Cañon City, Colorado, which stands as the solitary confinement capital of the industrialized world. Two hours southwest of Denver, the Cañon City area is home to 14 state and federal prisons and about 8,000 prisoners–close to 1,500 of them in long-term solitary confinement. Colorado’s two state supermax facilities, on the outskirts of town, have over 1,066 solitary confinement cells in all, and ADX Florence, with some 400 more, is just ten miles down the road.
Cañon City does its best to promote itself as an Old West tourist town, a base for whitewater rafting and narrow-gauge train rides in nearby Royal Gorge. Its strip is filled with chain motels, alongside kitschy establishments like the Waffle Wagon, Big Daddy’s Diner, and the Smoker Friendly Tobacco Hut. But while it isn’t quite the rundown hellhole depicted in the recent French web documentary called Prison Valley, Cañon City is unmistakably a company town. Prison guards’ uniforms are a common sight in its streets and shops, and the motels advertise special rates for government employees. Downtown Cañon City holds the Museum of Colorado Prisons, which lies in the shadow of yet another actual prison. On its front lawn stands a gas chamber—not a replica, but the actual gas chamber used for eight state executions. Inside the museum, the exhibits include “behavior control devices” such as balls and chains, cattle prods, gas guns, and a kind of whipping horse that was known as the “Old Gray Mare.” The printed museum guide informs visitors that “the items on exhibit can no longer be used because the court system deemed their use cruel and unusual punishment.”
The courts have, for the most part, failed to reach the same conclusion about long-term solitary confinement, although some of Cañon City’s prisoners might well prefer a few minutes on the Old Gray Mare to years or decades of 23- to 24-hour lockdown with barely a glimpse of a human face. Numerous studies have confirmed the psychological and physiological damage caused by this type of isolation, and international conventions identify it as a form of “cruel, inhuman, and degrading” treatment. The practice is rare in Europe, but in the United States, over the past 30 years, the use of solitary confinement has increased even more dramatically than our staggering incarceration rate. (Between 1995 and 2000 alone, the growth rate for prisoners housed in isolation was 40 percent, as compared to 28 percent for the prison population in general.) According to the best available data, about 25,000 prisoners are in solitary in supermax facilities, while some as many as 80,000 more are in segregation units or cells in other prisons and jails. With more than 6 percent of its prisoners in isolation, Colorado ranks well above the national average of about 2 percent—but then, so do states that span the political spectrum, from Arizona and Nevada to Maine and New York.
At ADX, the only supermax in the federal prison system, human isolation has been raised to an art. The location alone is desolate enough: On a road outside the tiny town of Florence, on a cleared patch of red-brown high desert turf, lies a razor-wire-fenced compound dotted with signs that read “No trespassing, 24-hour surveillance.” This is the Florence Federal Correctional Complex, which includes medium and maximum-security facilities as well as the world-famous ADX. With their cheery red and yellow bricks and tiled roofs, the buildings nearest to the road resemble a southwestern strip mall; set further back and low to the ground, ADX would be at home on a suburban industrial estate, minus its massive concrete guard towers.
The interior of ADX, however, is something few Americans will ever see, even through the eyes of journalists. Alan Prendergast, a reporter for Denver’s alternative weekly Westword, has written about ADX since its opening in 1994; in its early years, he entered the federal supermax several times and was even granted permission to interview prisoners. After 9/11, however, all press access was cut off. From documents obtained through the Freedom of Information Act, Prendergast learned that after January 2002, every single request from the press to visit ADX was denied, with the majority of denials citing unspecified “security concerns.” “I may have been the last reporter inside ADX,” Prendergast said in an interview.
Several University of Denver students have, however, succeeded in entering this fortress of solitude, due to their standing as student lawyers. Erica Day and Nick Catanzarite, DU students who are currently working on Tommy Silverstein’s case, described their experiences visiting ADX, along with Rovner and Glidden, in October 2010. The first thing they saw when they entered was a huge black-and-white photo of Alcatraz Prison floating in San Francisco Bay, implicitly conveying pride in ADX’s reputation as the “Alcatraz of the Rockies.” Then there was a series of photos of the men responsible for the facility: President Barak Obama, then Attorney General Eric Holder, followed by the head of the Federal Bureau of Prisons, the North Central Regional BOP director, and ADX Warden Blake R. Davis. After clearing security, they passed a cabinet selling T-shirts that read “Pen State,” with proceeds going to the prison guards’ union, and then a set of staff awards for excellence. Finally, there was a long underground hallway, punctuated by a series of signs with slogans like “Loyalty,” “Honesty,” and “Integrity.”
After crowding into a small concrete visitors’ booth in sight of several video cameras, Rovner, Glidden and the students watched through thick plexiglass as their client was brought in. Silverstein’s legs were shackled together, and his hands were cuffed and connected to a belly chain fitted through a “black box” attached to his waist. After hearing about the man some prison officials refer to as “Terrible Tommy,” Catanzarite says he was taken aback by his appearance: “He looked like an old man.” Day was “caught off guard by Tommy’s manners. “He was concerned about the long trip we’d had to take to get there,” she says, and “every time someone entered or left the room,” she said, “he stood up.”
They spent close to six hours in the concrete enclosure interviewing their client—an experience the student attorneys describe as exhausting, partly because of the subject matter, and partly because they themselves felt unhinged by their environment, consumed in a kind of time warp. Both clearly have been affected by the visit. Day’s voice becomes emotional when she describes leaving ADX: “It’s hard when you walk outside into the light, and know he is going back to his cell.”
Laura Rovner is one of the only outsiders who have ever seen what awaits Tommy Silverstein when he returns to his cell. For years, he was housed in a place called Range 13—the most restrictive section within the most restrictive unit of the most restrictive prison in America. Its only residents were Silverstein and Ramzi Yousef, convicted as a principal participant in the 1993 World Trade Center bombing. When Silverstein arrived at ADX—after years in Marion, Atlanta, and then Leavenworth, where he occupied a remote underground cell known as the “Silverstein Suite”—prison officials built an additional wall in the hallway to make absolutely sure that the two could not communicate, even by shouting. They also moved Silverstein back and forth, every three months, between two different cells.
When Rovner examined the cells, she saw the usual immovable, poured concrete bed, desk, and stool; the combination toilet/sink and interior shower, which renders it unnecessary for prisoners to ever be removed from their cells. The cells are lit and surveilled by video cameras 24-hours-a-day. They receive close-circuit broadcasts onto black-and-white televisions that had to be retrofitted specifically for the Bureau of Prisons–reputedly because the BOP didn’t like the PR implications of providing supermax prisoners with color TV. Each cell has a small, high, wire-covered window, which the prisoner can only look through by climbing on the desk, and which provides a view only of the concrete walls of the exercise enclosure into which the prisoner is released (by remote control) for up to one hour a day. The enclosure’s high concrete walls offer a glimpse of sky, but no view of the nearby mountains, and its dimensions are such that the occupant can walk approximately ten steps in any direction, or thirty feet in a circle.
Remotely controlled bars separate each cell from a vestibule, and a solid steel door separates the vestibule from the hallway. Food comes into the vestibule through a slot in the door. Any contact Silverstein had with prison staff, including the psychologist who spoke to him for a few minutes every 30 days, generally took place through the steel door. There was no need—and little possibility—of him ever seeing a human face. According to Silverstein’s lawsuit, while he was held in Range 13, “invasive strip searches and infrequent haircuts were the only physical contact Mr. Silverstein experienced with other human beings.” Rovner says that experts on the use and effects of supermax prisons, including psychologist Craig Haney and correctional expert Steve J. Martin, told her that Range 13 has the most isolating prison conditions they had seen.
The complaint, filed on Silverstein’s behalf by the Civil Rights Clinic in 2007, states that the “extreme sensory deprivation and social isolation” to which Tommy Silverstein has been subjected over the last 27 years have deprived him of “human contact and human dignity” and “led to physical and psychological harm.” The harm cited in the complaint includes “eyesight damage, hypertension, anxiety attacks, sleep disturbances, pain…shortness of breath, and aggravated symptoms of diabetes and Hepatitis C…depression, hallucinations, disorientation, memory loss, cognitive impairment and other various psychological problems.” The complaint argues that the BOP is well aware of the risk of harm they are causing, and that all of this constitutes cruel and unusual punishment, in violation of the 8th Amendment.
The complaint also alleges that Tommy Silverstein is being subjected to this cruelty without due process of law, which is guaranteed to him by the 5th Amendment. Rovner and her students argue that there is no meaningful legal process to determine who gets put into ADX (as opposed to a conventional maximum security prison) or what they have to do to get out. The prison putatively maintains a “step-down” program, by which prisoners can gradually earn their way, through good behavior, into somewhat less restrictive conditions. But the lawsuit depicts the step-down program as little more than a sham process, and one to which their client has had no real access.
Silverstein has not had a disciplinary write-up in 23 years, but this fact has had no impact on his confinement. “The BOP shrinks chalk it up as me being so isolated I haven’t anyone to fight with,” Silverstein wrote to Alan Prendergast, “but they’re totally oblivious to all the petty BS that I could go off on if I chose to. I can toss a turd and cup of piss with the best of ‘em if I desired,” he continued, referring to fact that some supermax prisoners resort to throwing their own excrement. “What are they going to do, lock me up?”
Nick Catanzarite says that he “felt conflicted” when he began working on the Silverstein case, because of what he knew about his client’s violent past. But he is now convinced that regardless of that past, “what he has been subjected to is not OK. Even if it had a rehabilitative purpose, it wouldn’t be justified.” Erica Day finds the conditions at ADX so extreme that they shock both the senses and the conscience. “There’s a reason these prisons aren’t in the middle of Denver,” she said. “You really hope this goes on because people don’t know, and not because they don’t care. But there will always be people whose minds can’t be changed.”
If their goal is to change minds, as well as change their clients’ conditions, Rovner and her students have chosen an unlikely poster child in Tommy Silverstein. Even some steadfast opponents of long-term solitary confinement told us that they questioned the idea of litigating on behalf of Silverstein rather than someone with a less violent and more sympathetic story. After all, Silverstein’s crimes—which include killing a guard while being marched to the shower in shackles—do seem to qualify him as one of the “worst of the worst.” Meanwhile, tens of thousands of American prisoners are in solitary for disciplinary infractions that range from fighting in the mess hall to having a too many postage stamps, while thousands more live in isolation simply because they are deemed too young, too vulnerable, or too mentally ill for the general population.
But Rovner believes that the extreme nature of Silverstein’s isolation, and its duration, demand a legal response. And it’s possible that the outcome of his case could affect the thousands of other individuals being held in long-term solitary confinement in supermax facilities and administrative segregation units across the country, from Virginia’s Red Onion prison to California’s Pelican Bay. When a federal judge ruled, in March 2010, that Silverstein’s lawsuit could move forward, Rovner pointed out that it was “one of only two or three in the entire country where a court has held that solitary confinement alone is enough to state a claim for cruel and unusual punishment, even absent mental illness or other physical harm. We anticipate and hope that this decision will have a positive impact on the ability of litigators across the country to challenge the disturbing trend of holding individuals in solitary confinement indefinitely.”
The case of this former member of the Aryan Brotherhood could, ironically, have implications for the plight of two former Black Panthers in Louisiana—or vice versa. Albert Woodfox and Herman Wallace, members of the group known as the Angola 3, have been in solitary confinement in state prisons for almost continuously for 37 years. A team of pro bono lawyers has mounted a challenge on grounds similar to those in the Silverstein case, and will likely go to trial in federal district court in Baton Rouge sometime this year.
Extreme and indefinite solitary confinement has also become the punishment of first resort for those accused or convicted of crimes related to the so-called war on terror. ADX now holds the likes of Zacarias Moussaoui, Richard Reid, and John Walker Lindh, and is spoken of as a possible final destination for residents of Guantanamo. Marion and Terre Haute federal prisons already contain ultra-isolation “Communications Management Units” (CMUs) that were set up secretly under the Bush administration, supposedly to hold high-risk prisoners, including terrorists, whose crimes warranted heightened monitoring of their external and internal communications. According to a lawsuit filed this past spring by the Center for Constitutional Rights, many prisoners in fact end up in the CMUs “for their constitutionally protected religious beliefs, unpopular political views, or in retaliation for challenging poor treatment or other rights violations in the federal prison system.”
The DU Civil Rights Clinic’s clients also include three prisoners convicted of terrorism charges, in connection with the 1993 World Trade Center bombing. Following their convictions in 1995, Mohammed Saleh, El-Sayyid Nosair, and Ibrahim Elgabrowny were housed in the general population at various federal prisons, where they ate in the mess hall, worked jobs, hung out on the yard, and received visits from their families. But according to the complaint filed on their behalf, within “hours” of the 9/11 attacks, they were rounded up and placed in solitary confinement, and later transferred to ADX–all without any form of due process, which the Constitution demands whenever anyone is deprived by the state of liberty or property. Just because these men are prisoners, explains Kellie Eastin, one of the students working on the case, “doesn’t mean they can’t have more of their liberty taken away.” The courts, however, have been indefinite and contradictory when it comes to defining the “liberty interest” of prisoners. In December, a federal judge dismissed the case, concluding that the men’s confinement at ADX served a “legitimate penological interest” and, remarkably, that the conditions at ADX could not be considered “extreme.” The Civil Rights Clinic is appealing the decision to the U.S. Court of Appeals for the Tenth Circuit.
Because of her work at ADX, Rovner was recently asked to provide evidence to the European Court of Human Rights in the case of four British nationals who are fighting extradition to the United States to face terrorism charges. The suspects have argued that if extradited, they could face a lifetime of solitary confinement, most likely at ADX—and that this type of confinement would violate the European Convention on Human Rights’s ban on “torture or inhuman or degrading treatment or punishment.”
These suits implicitly challenge Americans to think about the issue of torture not in distant prisons like Gitmo, Bagram, or Abu Ghraib, but in our own backyards. “When we think about people being waterboarded overseas by our government,” Rovner told the Denver Post, “the idea of sitting in a cell with three meals a day doesn’t seem that bad. But that doesn’t account for the scars you can’t see or the devastating human erosion.” Tommy Silverstein himself has described life in solitary confinement as “a slow constant peeling of the skin, stripping of the flesh, the nerve-wracking sound of water dripping from a leaky faucet in the still of the night while you’re trying to sleep. Drip, drip, drip, the minutes, hours, days, weeks, months, years, constantly drip away with no end or relief in sight.”
Many more months—and perhaps even years—will drip away before Silverstein’s case is resolved. But the litigation process itself is not without some impact. Already, Tommy Silverstein, Ibrahim Elgabrowny, and El-Sayyid Nosair have been moved from their original cells at ADX to different (though only marginally less restrictive) conditions. The changes took place since the Civil Rights Clinic filed its lawsuits, though the federal Bureau of Prisons denies the suits had anything to do with the moves.
In the end, all that is certain is that the students and their clients will affect one another on a personal level—in some cases, quite profoundly. The students who visited their clients at ADX and the nearby Colorado State Penitentiary describe ascending from those hidden worlds and drinking in the air, the sun, the mountains—the sensation of freedom—and feeling changed by their experience. For Tommy Silverstein, conversely, his time in the ADX visiting booth felt like a “vacation” from his life of utter solitude.
Laura Rovner acknowledges that her clinic’s litigation is providing its clients with one thing they desperately need: a spark of genuine human interaction. While she hopes to accomplish much more, she also believes that this alone is significant.