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Abuses and Usurpations

Sunday, September 1, 1996

The 288 most dangerous convicts in Maryland are incarcerated in "Supermax," the Maryland Correctional Adjustment Center.

        Supermax is a prisoners' prison, one in a growing class of "supermaximum security" facilities that take the worst of the worst--murderers and rapists who have continued their violent behavior while on the inside -- and lock them away in a redoubt of fortified walls and high-technology surveillance equipment. Supermaxes exist to isolate "bad" prisoners from the general population, and in turn, these incorrigibles from each other.

The Clinton Justice Department undermines local efforts to seize control of prisons from litigious prisoners and autocratic judges.

        While some see supermaxes as civilized society's last line of defense against its most violent predators, others see them as cruel and unusual punishment. This latter group includes the ACLU's National Prison Project, the National Campaign to Stop Control Unit Prisons, and, most recently, the Clinton Justice Department.

        Deval Patrick, the assistant attorney general for civil rights, has threatened to sue Maryland for alleged violations of prisoners' civil rights at Supermax. Maryland officials vehemently deny the charges. The Clinton administration, they claim, is conducting a quiet campaign on behalf of prisoners that belies its tough-on-crime rhetoric.

        Even as President Clinton proposes a constitutional amendment to protect the rights of crime victims, these officials charge, his Justice Department is trying to expand the rights of prisoners by singling out Supermax. And although the president has signed legislation to liberate state prisons from activist federal judges and groundless prisoner lawsuits, his political appointees are attempting to micromanage the incarceration of the states' most dangerous convicts.

        Rico Marzano is one such convict. In a 1987 drug deal that went bad, Marzano shot and killed four people, including two pregnant women. He was convicted of first-degree murder and placed in a maximum security facility. After his second escape attempt, he was sent to Supermax.

        Maryland's highest security prison houses three kinds of inmates: "serious institutional rule violators" (typically inmates who have assaulted or killed guards or other inmates); serious escape risks, like Marzano; and prisoners awaiting death sentences, like Anthony Brandison, who paid a man $9,000 to kill two witnesses scheduled to testify against him in a 1983 federal drug case. In all, 105 murderers and 19 rapists spend their days in Supermax in what the corrections system calls "restricted confinement."

        Inmates remain alone 23 hours a day in their 65-square-foot concrete cells. They are allowed no physical contact with other prisoners or guards; meals are passed through a narrow slit -- a "beanhole" -- in solid metal cell doors. Out-of-cell time is spent alone, in a windowless prison dayroom. "When we were letting them rec [recreate] together they were killing each other, so we had to stop," said William Sondervan, Maryland's assistant commissioner for security operations.

        Despite such concern for the safety of inmates -- not to mention the prison staff -- the Clinton Justice Department insists that the isolation of inmates at Supermax is "the mental equivalent of putting an asthmatic in a place with little air to breathe." But the staff must maintain order among prisoners who regularly hurl "correctional cocktails" of feces, urine, and other bodily fluids and often have to be forcibly removed from their cells. It is obviously frustrating, then, that prison officials must also fight a legal battle to protect what they see as a valuable -- and legal -- correctional tool.

        Each year, the 50 states spend $81 million defending themselves against prisoner lawsuits seeking redress for civil rights "violations" ranging from insufficiently stylish footwear to faulty television reception. This epidemic of prisoner litigation -- one-fourth of the civil cases filed in federal trial courts last year were initiated by prisoners -- is complemented by federal judges who impose "voluntary" consent decrees on states. In 1990, more than 1,200 state prisons were operating under judicial edicts covering everything from inmate population caps to how many electrical outlets each cell must have.

        This litigation explosion has greatly circumscribed the control of states over their own prison systems. Some states have passed legislation curbing prisoner lawsuits, but attorneys general from Tallahassee to Phoenix have looked to Congress for federal relief. Congress responded earlier this year by passing the Prison Litigation Reform Act. The legislation, which forces prisoners to pick up the tab for lawsuits and limits the ability of judges to impose consent decrees, was signed by Clinton as part of a larger spending bill last April. But the ink had barely dried on Clinton's signature before his Justice Department stepped in to substitute for the liberal federal judges whose meddling in state prison systems had been curtailed by the legislation.

        In a 13-page letter to Maryland governor Parris Glendening, Deval Patrick charged that Supermax was violating inmates' constitutional rights through a range of offenses from inadequate exercise equipment to lukewarm meals. He gave the state 49 days to comply with a three-page list of "necessary remedial measures," or else face a federal lawsuit.

        Thirty states, the federal government, and Canada all have supermaxes -- one-third of which have been created since 1991. These facilities have already established a track record of success as pressure-release valves for overburdened state prison systems. In the 1970s, before California built its supermax, one out of every 1,200 prisoners was murdered by a fellow inmate. Today, that rate has shrunk by tenfold, to one in 12,000.

        Tom Coughlin, a former New York State Corrections Commissioner, says he saw a "dramatic reduction" in violence in his prisons following the construction of the New York supermax a decade ago. Despite their success -- or perhaps because of it -- supermaxes have become the target, many corrections officials believe, of a systematic bias within the Department of Justice.

        Maryland prison commissioner Sondervan says he is "shocked" and "insulted" by the charges leveled against Supermax by Patrick. Department of Justice investigators, he believes, came into the facility with their minds already made up. "They came in with a political agenda," Sondervan says. "Their charges don't reflect the truth" about conditions at the prison.

        Prisoner litigation typically germinates in the expansive environs of the Eighth Amendment, which prohibits "cruel and unusual punishment." Federal civil rights investigators, Maryland officials charge, seem to believe that supermaximum facilities by their very existence are cruel and unusual. In his letter to Glendening, Patrick admitted he was "unable to find evidence of a pattern of physical abuse by Supermax staff against inmates."

        What he did find, however, was a host of violations of prisoners' "rights." Among them were the "rights" to outdoor exercise, piping hot meals, and daily visits by medical personnel. In a sharply worded rejoinder, the Maryland attorney general's office told Patrick that his charges reflect his civil rights division's "philosophical opposition to 'super maximum' facilities without regard to constitutional criteria." They noted that the law allows the Department of Justice to redress only "egregious" constitutional violations, a standard, they argued, that was not met by the charges leveled by Patrick. Former New York prisons commissioner Coughlin agrees that the Justice Department too often acts without legal cause. "Look up the word 'egregious' and the meaning is not lukewarm food," says Coughlin. "There is no constitutional right to rehabilitation. You have to protect people from harm -- that's the constitutional right. The Department of Justice says isolating prisoners is causing harm. But as far as I'm concerned, if officers are not hitting individuals with sticks, there is no constitutional harm being done."

        Maryland officials suspected Department of Justice investigators of a broader political agenda because Patrick's letter referred to Pelican Bay prison, a notorious facility in California that has been referred to as a "neo-Orwellian hell." Conditions at Supermax, Patrick wrote, were "similar" to those found at Pelican Bay, a supermax that had been the object of a huge 1991 class-action suit alleging physical and mental abuse of prisoners.

        Maryland officials believe that the Department of Justice has set out to expand prisoners' rights by building on the case law established by Pelican Bay litigation. A federal judge found extensive abuses at that prison and ruled that the severe isolation of inmates there could exacerbate and even cause psychosis and other mental problems. Maryland officials strenuously object to the comparison. Kathleen Kennedy Townsend, the state's Democratic lieutenant governor, told the Baltimore Sun that it was "outrageous" and "inflammatory" to compare Supermax with Pelican Bay. "The fact that they have to reach so far to make the comparison makes you suspicious of the people who wrote this," she said of the Justice Department report.

        Such an agenda, officials admit, is perplexing given the anticrime sentiment prevalent this election year. And the timing of the investigation of Supermax -- coincident with the president's approval of the Prison Litigation Reform Act -- only muddies the Clinton administration's message on criminal-justice issues. "Deval Patrick has painted himself into a box on this one," a Maryland prison official says. "The Prison Litigation Reform Act really captures the national view of how people feel about prisons."

        Meanwhile, Maryland corrections officials remain in a tense standoff with federal officials over the future of Supermax. Unfortunately, they can't look to the Prison Litigation Reform Act for relief; it spares states the tyranny of liberal federal judges and litigious inmates, but not federal regulators.

        Senator Orrin Hatch, one of the authors of the Act, recently decided to try the direct approach: He appealed to the Clinton administration to drop its insistence that inmates at Supermax have a constitutional right to fresh air. "Many, if not all, of the murderers in this group are lucky to be breathing indoor air at all," the senator says, "which is more than their victims are doing right now."

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