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The Atlantic: June 18, 2012
Index of Photographic Exhibits to Plaintiffs' Complaint, Bacote, et al v. United States Bureau of Prisons, et al
When Jack Powers arrived at maximum-security federal prison in Atlanta in 1990 after a bank robbery conviction, he had never displayed symptoms of or been treated for mental illness. Still in custody a few years later, he witnessed three inmates, believed to be members of the Aryan Brotherhood gang, kill another inmate. Powers tried to help the victim get medical attention, and was quickly transferred to a segregated unit for his safety, but it didn't stop the gang's members from quickly threatening him.
Not then. And certainly not after Powers testified (not once but twice) for the federal government against the assailants. The threats against him continued and Powers was soon transferred to a federal prison in Pennsylvania, where he was threatened even after he was put into protective custody. By this time, Powers had developed insomnia and anxiety attacks and was diagnosed by a prison psychologist as suffering from Post-Traumatic Stress Disorder.
Above: Jack Powers Instead of giving Powers medicine, or proper mental health therapy, officials transferred him yet again, this time to another federal prison in New Jersey. There, Powers was informed by officials that he would be removed from a witness protection program and transferred back into the prison's general population. Fearing for his life, Powers escaped. When he was recaptured two days later he was sent to ADX-Florence, part of a sprawling prison complex near Florence, Colorado often referred to as "ADX" or Supermax," America's most famous and secure federal prison.
From there, things got worse. The Supermax complex, made up of different secure prison units and facilities, is laden with members of the Brotherhood and Powers was no safer than he had been anywhere else. Over and over again he was threatened at the Colorado prison. Over and over again he injured or mutilated himself in response. Over and over again he was transferred to federal government's special mental health prison facility in Missouri, diagnosed with PTSD, and given medication. Over and over again that medication was taken away when he came back to Supermax.
As he sits today in Supermax, Powers had amputated his fingers, a testicle, his scrotum and his earlobes, has cut his Achilles tendon, and had tried several times to kill himself. Those tattoos you see? Powers had none until 2009, when he started mutilating with a razor and carbon paper. He did much of this -- including biting off his pinkie and cutting skin off his face -- in the Control Unit at ADX while prison officials consistently refused to treat his diagnosed mental illness. Rules are rules, prison officials told him, and no prisoners in that unit were to be given psychotropic medicine no matter how badly they needed it.
CALL AND RESPONSE
If the Powers case were unique it would be shocking enough. Bureau of Prison policies prohibit officials from assigning mentally ill inmates to ADX. And the Eighth Amendment requires prison staff everywhere to adequately diagnose and treat mentally ill prisoners, including those prisoners, like Powers, who evidently become mentally ill while in prison. No law or policy, at any level, would appear to sanction or condone the conduct of those prison officials accountable for the lack of response to Powers' decline.
But Powers is not an exception. In federal court in Denver this morning, a new class-action lawsuit was filed against the Bureau of Prisons and the officials in charge of Supermax. The long, detailed complaint, which reads at times like the plot from HBO's Oz, alleges not just "deliberate indifference" on the part of those officials but outright cruelty -- even torture -- in the face of obvious cases of mental illness at the prison. You can read the complaint in its entirety here. The very first paragraph of the pleading states plainly the case:
Currently, BOP [Bureau of Prisons] turns a blind eye to the needs of the mentally ill at ADX and to deplorable conditions of confinement that are injurious, callous and inhumane to those prisoners. No civilized society treats its mentally disabled citizens with a comparable level of deliberate indifference to their plight.Paragraph 5 of the complaint alleges in more detail:
Prisoners interminably wail, scream and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, writing utensils and whatever other objects they can obtain. Some swallow razor blades, nail clippers, parts of radios and televisions, broken glass and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads, oblivious to the reality and the danger that such behavior might pose to themselves and anyone who interacts with them.There are five named prisoners in the lawsuit (about whom we'll have more detail in the next installment of this series), and its likely that at least six other inmates named in the complaint, and perhaps many more, will soon join the litigation. It's certain that this case will be closely followed around the country because of what it portends for other lawsuits challenging dubious prison isolation policies. The lawsuit does not request money damages. Instead, it seeks an injunction that would require prison officials to better treat the ill men in their care.
And just exactly who are the plaintiffs? Who are these convicted felons seeking redress in federal court? All of them came to Supermax because of violent run-ins at other federal prisons or other parts of the sprawling ADX complex in Florence, Colorado (some of those incidents themselves were a manifestation of their mental illness). One plaintiff got to the control unit at Supermax after he assaulted a prison chaplain. Another, who is likely mentally retarded, pleaded guilty to murdering another inmate. These men are hardly noble. But the Eighth Amendment doesn't require them to be. From paragraph 7 of the complaint:
Plaintiffs are five seriously mentally ill men currently incarcerated at ADX. This Complaint also names as "Interested Individuals" six other current ADX prisoners with serious mental illnesses. ... Many of these men also suffer severe functional impairment of their ability to attend to their own personal needs or even to exist in a world with other people. Several of them are mentally retarded, and at least one is functionally illiterate.Many of these men aren't serving life sentences. Some will soon be released after going mad in prison, after having preexisting mental illness get worse behind bars. One of the named plaintiffs, for example, is a man named John W. Narducci Jr. His life story is tragic, his criminal conduct unrelenting. Many years ago, his sentencing judge ordered that he be imprisoned in a place that could adequately tend to Narducci's "serious psychological and emotional problems." That didn't happen. And soon he may be free.
Two other Supermax inmates, who are not yet named plaintiffs in the lawsuit, are so severely mentally ill that federal lawyers have allegedly gone to court -- repeatedly -- to have them involuntarily committed or forcibly medicated. One of these men, paragraph 57 of the complaint contends, is scheduled to be released in October 2012 after having had no mental health treatment for the past six years. Paragraph 58 of the complaint focuses upon the other inmate, whom prison officials themselves have conceded has a "mental disease or defect."
AN AMERICAN GULAG
The worse the mentally ill men behave without their medication and treatment, the worse they are treated by prison officials.
The result is that many prisoners who are significantly mentally ill are not so diagnosed upon entering Supermax. And even those men who are so diagnosed are often not given appropriate treatment in the months and years that follow their arrival at the facility. For example, the complaint alleges that prison officials violate "every major requirement" of the following federal regulation which is designed to govern the treatment of mentally ill prisoners at Florence:
Mental health services. During the first 30-day period in a control unit, staff shall schedule the control unit prisoners for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services, psychiatric services will be provided when necessary. Prisoners requiring prescribed psychotropic medication are not ordinarily housed in a control unit. (Emphasis added in complaint.)The plaintiffs contend that "it is common for BOP to place an incoming prisoner taking psychotropic medication in the Control Unit, where such medication is not permitted." The result is predictable. Paragraph 49 of the complaint:
BOP justifies this in Orwellian fashion: it discontinues the prisoner's medication, thereby making the now non-medicated prisoner "eligible" for placement in the Control Unit. Then, when this newly eligible prisoner requests medication needed to treat his serious mental illness, he is told that BOP policy prohibits the administration of psychotropic medication to him so he should develop "coping skills" as a substitute for medicine being withheld.There is the legal requirement to provide medical treatment for mentally ill prisoners. And then there are the practical realities. Paragraph 63 of the complaint alleges that "only two mental health professionals -- both psychologists -- are responsible for the mental health of approximately 450 prisoners housed at [Supermax], many of whom have serious chronic mental illnesses or other mental health issues, and many others of whom experience periodic acute mental health crises."
Instructing a prison confined in long-term segregation and who has schizophrenaia or bipolar Illness to self-treat this disease with coping skills is like demanding that a diabetic prisoner learn to "cope" without insulin.
The result, contend the prisoners, isn't just that they don't get appropriate mental health therapy or adequate medication. Even when they are allowed to take pills, they allege, the Supermax "staff distributes medications on an irregular schedule that is often inconsistent with the instructions for consumption of the medication." The distribution of the medicine is "haphazard and sometimes reckless" and "frequently" results in the wrong medicine being given to the prisoners.
MORE ON SUPERMAX
Thus, mentally ill prisoners, including those in the throes of a psychotic episode, frequently are subjected to barbaric treatment and physical torture more suited to the dungeons of medieval Europe than to a modern American prison. For example, mentally ill prisoners are routinely "four pointed" -- chained by the arms and legs to a concrete block -- often for extended periods. While chained, mentally ill prisoners often are left to urinate and defecate on themselves, and are denied basic nutrition.Here's another example of life for mentally ill prisoners at Supermax. From paragraphs 71 and 72 of the complaint:
In some cases, ADX staff turn the simple (although cruel and unusual) refusal to feed a prisoner into a deceptive hoax. ADX prisoners, including those in four point restraints, sometimes are put on a disciplinary "sack lunch" nutrition program in which they are fed not standard prison trays but a paper bag containing a sandwich or two and a piece of fruit.And from paragraph 60:
Many mentally ill prisoners at ADX who are placed on sack lunch restriction have received sacks (suitably videotaped) being delivered to their cells. But when they open the bags (off camera) they sometimes are empty. Through this ruse ADX staff produce false video evidence of feeding, raising (if only for a minute) the prisoner's hope for basic nutrition, then smash the often-chained and always hungry prisoner's hopes with a bag of air. ...
As a result of this type of abuse, other prisoners in nearby cells and ranges are often subject to the shrieking and suffering of prisoners undergoing such abuse.
Likewise, in 2010, a severely and chronically depressed prisoner who had attempted to kill himself a few months earlier was escorted to the ADX [Special Housing Unit] after throwing milk at a corrections officer. He was placed in a cell just vacated by another chronically ill prisoner who had smeared the cell's floors, walls, bed and mattress with feces. The prisoner was given no cleaning supplies, and was not issued a blanket, towel or sheet. He used a roll of toilet paper in the cell to try to wipe the feces off of a spot on the floor that was large enough to enable him to lie down. For two days, he remained lying on that single "clean" space.
Upon information and belief, ADX staff knowingly chose to place the seriously mentally ill prisoner in the feces-caked cell just vacated by another seriously mentally ill inmate and left him there for two days for the purpose of punishing him by means of another prisoner's excrement.
When there is mental health counseling, the plaintiffs allege, it is often a "farce." From paragraph 68 of the complaint:
Members of ADX mental health staff occasionally talk to prisoners, but even those occasional counseling sessions are almost invariably conducted through the bars of the prisoner's cell, in the immediate presence of a correctional officer and within earshot of other prisoners housed in the same range. This process turns psychological counseling into a farce. ...
Although a safe, secure and private room for psychology counseling is available within steps of the cell of virtually every cell at ADX, staff members routinely ignore prisoner requests to discuss serious psychological problems in private.
That is, prison mental health officials are routinely ignoring such requests when they aren't busy performing correctional functions -- a bit of double-duty that effectively neutralizes whatever "trust" the mentally ill inmate may have formed with his mental health contact. It's hard to bare your soul to your therapist and then see your therapist serving as a prison enforcer. Paragraph 71 of the complaint makes this startling allegation:
Upon information and belief, the BOP requires or encourages members of the mental health staff at ADX to perform correctional functions. Upon information and belief, such staff members have: performed prisoner escort duty within the prison while armed with weapons, openly brandishing those weapons in the presence of prisoners; worked shifts in the prison's gun towers; appeared at the doorways of prisoners brandishing clubs in an aggressive fashion; and participated in violent acts toward prisoners, including, on at least one instance, participating in a violent cell extraction while wearing riot police protection gear.It is a cycle. The men become mentally ill, or become more mentally ill, because they are not given proper medication or treatment. And the worse the mentally ill men behave without their medication and treatment, the worse they are treated by prison officials. For example, the plaintiffs allege that they were threatened by prison officials for their involvement in this case. "If you don't drop this lawsuit they will fuck you over, trust me on this," one Supermax staffer allegedly told one of the plaintiffs.
MEDITATIONS ON A DEFENSE
The Bureau of Prisons will soon have to respond to the allegations of the complaint -- I promise I will write about that, too -- and it is likely that federal lawyers will do so not on the merits but by claiming the lawsuit must be dismissed on procedural grounds. This is how the feds have responded virtually every other time Supermax prisoners have sought adequate mental health care by suing officials. Fourteen times the prison has been sued in the past nine years, the complaint alleges: more than one lawsuit a year.
Prison officials have successfully blocked the previous litigation by arguing that the prisoners had not exhausted their administrative remedies. This is a frequent and reasonable requirement in lawsuits against the government, requiring potential litigants to seek legal redress first with the agency with which they have a dispute. No federal judge will permit a case like this to proceed to discovery -- much less a trial -- unless that judge is convinced that no remedy is available directly from the offending government actors.
The complaint alleges that the plaintiffs have exhausted the avenues for grievance within Supermax. From paragraph 202:
Upon information and belief, and by way of illustration only, ADX staff members deny prisoners access for forms that BOP requires prisoners to use to submit complaints, "lose" administrative remedy paperwork or delay its submission so that prisoner appeals are deemed "untimely, fail to adequately investigate prisoner complaints, and fail to remedy obvious problems brought to BOP's attention by means of those prisoner complaints that do evade the impediments imposed by BOP itself.Perhaps you are wondering if the prison has an inside "watchdog" official who might be authorized to investigate allegations of misconduct by prison staffers. There is indeed such a person at Supermax, the complaint alleges. Her name is Dianna Krist. Her title is "Special Investigative Agent." But Krist appears to be married to Captain Russell Krist, who is responsible for "all corrections functions" at Supermax. No court in the country would countenance such an obvious conflict of interest -- and federal policy prohibits it.
Earlier this month, I wrote in depth about another new lawsuit brought against Supermax, Vega v. Davis, which seeks to require prison officials to answer for the 2010 suicide of an inmate named Jose Vega. In that case, Vega's brother seeks money damages from the feds. Vega is not alone, either. At least five other prisoners have committed suicide at Supermax since it opened in 1994, the complaint alleges. Things have been bad there for a very long time, in other words, even as Supermax has been widely hailed as the pride of the nation's penal system.
This class-action lawsuit seeks to have the federal judiciary order specific, fundamental changes to the mental health policies in place at the Bureau of Prisons as well as the mental health practices in play at Supermax. More training for prison staff. More counseling and medication for mentally ill prisoners. More effective safeguards to increase the accuracy of diagnoses and the commitment to sustained treatment. No more torture of the diagnosed ill. No more taunting of them.
These are not frivolous requests. They represent basic human rights to which even our nation's convicted felons are entitled under the Constitution and the Bill of Rights. The Bureau of Prisons is not permitted to treat men like animals no matter what they have done. And if federal lawyers now say that Supermax's mentally ill prisoners -- who aren't supposed to be there in the first place -- don't deserve answers and reform, then surely the rest of us do. We all will be judged by the level of inhumane treatment our prisoners receive -- for they receive that treatment in our name.
This is the first in a three-part series about the new class-action lawsuit filed Monday against the Bureau of Prison and the officials who run ADX-Florence, the so-called "Supermax" facility that houses some of the nation's most dangerous criminals. The second part will focus on the plaintiffs named in the lawsuit. The third part will focus upon some of the many legal issues involved in the litigation.