Is being confined indefinitely in a solitary prison cell “cruel and unusual punishment” and does it violate a prisoner’s right to due process?
A team of students at the University of Denver Strum School of Law and two of their professors claim the answer to both questions is yes. In 2007, they filed a civil rights lawsuit against the federal Bureau of Prisons (BOP) on behalf of a familiar name: Thomas Silverstein.
Silverstein is a major character in my book, The Hot House: Life Inside Leavenworth Prison, and someone I have known since 1987. That’s when I became the first and – to date — the only reporter ever allowed to interview him in prison.
Attorneys for the BOP moved to have the students’ civil rights suit dismissed, but U.S. District Judge Philip A. Brimmer ruled late last month in Denver that the case can move forward.
In the suit, Silverstein’s attorneys ask that Silverstein be allowed to live with other inmates in the prison’s general population and also have visits with his family. The suit also seeks unspecified monetary damages.
If the attorneys are successful, their suit could have ramifications that reach far beyond Silverstein’s cell. This is because prisons routinely use solitary confinement to isolate and punish troublesome prisoners.
Silverstein’s case is an extreme example. He was in a cell in the bowels of the Leavenworth penitentiary when I first met him. I was escorted into this underworld by an entourage of officers. We passed boilers and storage rooms, and walked down a dark hallway until we reached a thick steel door that creaked when it opened. It led into a small chamber filled with television monitors that showed what was happening on the other side of yet another steel door. That is where Silverstein’s cell was located. When I walked in, I found myself in a shoebox shaped room. His cell had been built against the back wall and it reminded me of a large circus cage. The front was a row of bars. The other three walls were reinforced concrete. There was a powerful spotlight on a wall that faced the cell and it could be flipped on to temporarily blind Silverstein if officers needed to rush in and restrain him.
The lights in this room were kept on 24 hours a day, supposedly because the BOP needed them for the cameras that it kept trained on him. The only sound that you could hear was the buzzing of the overhead fluorescent bulbs.
It was horrific, but then, so were the murders that Silverstein had committed.
Silverstein came into prison on a bank robbery sentence but soon had been convicted of two gang-related murders. (Another murder conviction was overturned.) The killing that got him where he is today took place in 1983 in what used to be the BOP’s toughest penitentiary. The victim was a veteran correctional officer named Merle E. Clutts. A second BOP officer was slaughtered by another inmate a few hours later in a copy-cat killing. Silverstein and the other convict, Clayton Fountain, were members of the Aryan Brotherhood, a white supremacy prison gang, according to the BOP.
In 1983, there was no federal death penalty law that would have permitted the government to execute Silverstein and Fountain. Norman Carlson, who was the BOP director at the time, knew that he needed to come up with a severe punishment, otherwise he risked having other inmates attack his officers.
Carlson put Silverstein under what was called “no human contact” although the BOP apparently does not have that exact wording recorded now in any of its records. Silverstein was placed in an isolation cell and given only the bare essentials that were required by law. Initially, that was – a specific amount of square footage, food and water. There were no books, no magazines, no television, no writing materials and no contact with anyone outside. He sat alone in a cell with only his mind to distract him. The only human beings, whom he saw, were correctional officers who guarded him, and an occasional psychiatrist sent to check on his stability.
The BOP said that he was too dangerous to be around other humans. After having been convicted of three brutal killings, isolation was the only solution. Since 1983, the BOP has relented, somewhat, in its treatment of Silverstein. It has given him, at various times, a television, writing materials, paint supplies, and allowed him to make telephone calls to his family, friends, and, on occasion, even to me.
But he has remained isolated from other prisoners.
The BOP eventually moved Silverstein above ground in Leavenworth to a special “Silverstein suite” built just for him in the main prison yard. More recently, he was transferred to the ADX in the Bureau’s Super Max penitentiary in Florence, Colorado, where he was kept in a cellblock with only one other inmate — Ramzi Yousef, convicted of the first World Trade Center bombing in 1993.
One of Silverstein’s problems is his own notoriety. When I wrote my book, Silverstein was revered by other convicts. He was a legendary figure among them. Meanwhile, he was despised by correctional officers, including those who had never laid eyes on him, but considered him to be the epitome of a correctional officer killer.
Tragically, other correctional officers have been murdered since Clutts. But none of these killers has been treated like Silverstein. After spending 27 years in solitary confinement, he continues to be the same lightening rod that he was when we first met.
Oftentimes, Silverstein is described as being held in solitary confinement longer than any other prisoner, but that statement is not accurate. There is a person who was held longer and he, also, murdered a correctional officer.
Robert Stroud, the Birdman of Alcatraz, stabbed an officer in 1916 and even though he later became famous for his studies of birds and his life story was made into a popular major motion picture, he died in 1963 still in prison, still in isolation.
Stroud, by the way, did his research about birds in Leavenworth, not Alcatraz, but the public identified Alcatraz as the infamous “rock” and he was sent there after his stint in Leavenworth, so naming him “the Birdman of Alcatraz” made his story more appealing to the public.
The BOP never relented with Stroud and I doubt it will with Silverstein.
How long was Stroud kept in segregation? 42 years.