Taking Supermax Seriously
Justice Posner’s description of a Supermax prison, in Scarver v. Litscher rekindled my discomfort with such facilities. Posner draws a clear picture of life at the prison’s “Level One” where all prisoners begin their stay and some continue for several months:
Inmates…are locked in windowless single-person cells for all but four hours of the week; the four hours are for recreation in a small windowless room not much larger than the cells. The cells are illuminated 24 hours a day so that the guards can watch the inmates, although they glance in only intermittently. The cells are not air-conditioned, and so, being windowless, they become extremely hot during the summer–the heat index sometimes rises above 100 degrees, and often above 90. The inmates are not allowed to have mechanical or electronic possessions, such as a television set, a clock, or even a watch–just one religious text, one box of legal documents, and 25 personal letters.
Perhaps it reflects my own lack of an inner life, but this sounds like hell on earth. I think I would quickly go mad in that little box. Although Level One is clearly the worst of the worst, it appears – looking over some of the prison handbooks for Level 2 – 5, available here – that life in the Supermax doesn’t get hugely better. Although Level 5 offers a small TV, you’re still locked in that room almost all day and night.
This all brings up two issues. First, is Supermax punishment so cruel that it is inherently unconstitutional? Second, even if not, should legislatures have to specifically authorize Supermax sentences for particular crimes?
There is research (some of which is cited by Posner) suggesting that Supermax custody exacts an enormous psychological toll. This accords with common sense. Isolation is roughest on those who arrive with mental illness (a fairly high percentage I’d guess, based on my own experience as a public defender.) But it’s brutal even for a “normal” person. Exactly what do you do, what do you think about, sitting endlessly in these tombs? At least with respect to the general (non-mentally ill) population, courts have been unsympathetic to Eighth Amendment attacks on the Supermaxes. I think these decisions reflect a broader failure among Americans to acknowledge mental health as a component of overall body condition. (Remember Tipper Gore?) I suspect many judges would be appalled if prisoners were subjected to equivalent physical abuses – being tied to a hitching post in the sun, for example.
There is another issue, however: statutory authority. Legislatures authorize maximum punishments for particular crimes, and custodial sentences are typically described only in terms of years. For serious crimes, at least, statutes typically authorize years in “prison” or “custody.” Thus, judges typically sentence a person to a period of time in “prison” or “custody”, and leave it up to corrections officials to select housing arrangements.
But is placement in a Supermax properly viewed simply as a management issue? I think it might be better seen as a distinct form of punishment, separate from fines, probation, and generic “custody” or “prison.” If so, isolation sentences ought to require specific statutory authorization. For example, it seems unlikely to me that when legislators authorize a one year prison sentence for shoplifting, they mean that a person could receive a year in a Supermax. I think legislators should have to authorize such a sentence explicitly.
There might even be a claim that such statutory distinctions are required. If society begins to recognize Supermax sentences as different in kind than other custodial terms, one might argue that a legislature’s failure to explicitly authorize such punishment makes such sentences unconstitutional.
Admittedly, requiring statutory authorization for particular sentencing approaches takes us down a slippery slope. Which custodial arrangements are permitted under general authority to impose prison, and which are not? What authority does a prison administrator retain in order to manage and deter prisoner misconduct and can he (or she) impose isolation for limited time without returning to the judge? These are details that must be worked out.
In my view, though, the fact that there are details should not deter us from examining this core question. Particularly as we debate the appropriate use of rough psychological tactics on national enemies processed outside of the criminal justice system, it seems only reasonable to take these issues seriously here at home.
Hat tip: Doug Berman.