A personal reflection by Rob, co-founder, More Than Our Crimes: There was once a time when, as bad as it is to be be locked up for months on end, we could still eke out some “good” days:, We could organize birthday parties and picnics for each other on the yard, and we could participate in “real” programs celebrated with graduations ceremonies, sports leagues with the thrill of winning, and even activities with outside guests.
Today, those are gone, and the stress just seems to constantly build. I think I’ve experienced two or three mini mental breakdowns over the past few years, and they were caused by how we are increasingly treated. We are always locked down for one reason or another, maybe allowed out in the fresh air once a week. Visits are unexpectedly canceled, even when family members have traveled cross country to see you. There are no more sports leagues, few programs of any quality, no outside guests or events like talent shows. We often aren’t allowed to go to the law library to work on our cases or even to our religious services. Sick call is a joke and people are literally dying from lack of medical care. Staff are unprofessional and disrespectful.
And now, the Bureau of Prisons (BOP) has published in the Federal Register some proposed changes to its “prohibited acts” – behaviors and actions that can trigger punishments ranging from monetary fines and loss of privileges such as visits, phone calls and commissary purchases, to a reduction in good-time credits and a stay in the “hole” (special housing unit). If adopted, the net effect would be to turn the screws even tighter.
Overall observations
- No data or cases are cited to justify why these changes are needed. To what extent have the “dangers” they are designed to prevent actually occurred? Likewise, what about the potential harm to prisoners? Has the BOP even thought about that?
- Many of the new or modified codes are general and vague and would be virtually impossible to fairly enforce. When reading the list of prohibited acts, we can’t help but wonder to what extent these codes exist primarily to permit retaliation, as desired, against a resident who has earned displeasure. (For example, the ban on getting a tattoo is laughable, since the practice is so widespread.)
- There is an implicit assumption that it is a good thing to micromanage prisoners’ lives to the maximum extent possible. But doing so when it is not necessary breeds frustration and anger, and doesn’t prepare incarcerated individuals to be independent, functioning parents, spouses and employees once they are released.
- The list of prohibited acts also reflects an assumption that it is possible to control and regulate away risk. That’s a pipe dream. No matter how tight the BOP turns the screws, some incarcerated people will find a way to do what is not desired. Agency management must ask the question: Is the degree of reduced risk worth the negative impact on morale?
- Finally, the BOP should pay as much attention to identifying and disciplining staff members who commit similar acts (such as verbally assaulting prisoners) as they do on incarcerated residents. We receive many reports of abuse and neglect, both large and small, with no recourse allowed prisoners except a grievance system that is, as noted below, ineffective at best and dangerous at worst.
As one incarcerated network member noted, “Yes, there is contraband coming in through visits, mail and drones. But it’s an open secret that many corrections officers are seriously corrupt and are bringing in their share.” All the talk is about shortage of staff, but equal attention is needed for both culture and accountability.
Critique of specific changes
Define ‘fighting’ as either physical or verbal.
While it may seem reasonable at first blush to punish verbal altercations as well as physical, it’s a charge that can very easily be abused. Recently, at USP Atlanta, the entire prison was placed on lockdown, simply because two men engaged in a loud argument in the rec yard.
Prohibit the use of social media, by prisoners or at their direction.
The BOP believes platforms such as Facebook and X can be used to facilitate crimes. Yet, no data are offered on the extent to which this has actually occurred, nor is there evidence that the First Amendment implications or potential benefits of these platforms were adequately considered. Social media such as Facebook are used by incarcerated people to connect with possible employers and other resources to prepare for release. They are particularly helpful for prisoners with writing or artistic talent, who use them to build a following, thus building their self-esteem and creating a re-entry path.
Consider the Washington state incarcerated writer Christopher Blackwell, who recently won the grand prize for the memoir contest organized by Narratively. As he told the popular site, “My wife runs my social media. You need these things as a writer. To be a successful writer and to drum up attention around yourself and to really get recognized, you have to have this stuff, and that’s why it gets so hard for people to develop into a professional from inside. Instead, we just get exploited by other journalists, to always tell them our stories and never really tell our stories ourselves.” (Clearly, Washington state prisons have not found it necessary to prohibit such activity.)
Writing, and any form of art for that matter, is an “exchange of ideas” protected under the First Amendment, and social media channels are legitimate publishing platforms. Likewise, cutting off access for prisoners would conflict with the BOP’s own Policy Statement related to “inmate manuscripts.” This provision actually encourages prisoners to use their time to engage in creative endeavors such as writing and poetry for the purpose of publication.
In addition, enforcement of this proposed violation would be exceedingly difficult, particularly in light of the agency’s chronic staffing crisis. There are more than 155,000 people within the BOP’s control, each of whom might be using variations of their name that differ from what appears in agency records. Then there is the necessity of proving that certain accounts are actually operated by the incarcerated persons themselves or according to their direction. (In fact, a prisoner could also be found in violation for simply not proactively deleting an account he or she used before incarceration.) The resulting application of the code would be sporadic and arbitrary, and thus inequitable.
‘Target and eliminate’ use of fund-transfer services like CashApp.
The agency’s rationale is that incarcerated people could use such services for unlawful acts such as money laundering. Perhaps, but there are also legitimate uses that would be banned. As Rob Barton, notes: “There are many simple, non-nefarious reasons for using CashApp, Apple Pay or Zelle. For example, what if I need some money to buy food or hygiene items at the commissary (which is a necessity, not a luxury) and one of my friends outside wants to send the money to my mother so she can put it on my account? Or, what if I want to give my child something for a holiday/birthday? Why can’t I have a friend send the money to my child’s mother? What is wrong with that? We live in a global economy, in which the use of physical money as a means of commerce is becoming obsolete. Why not let us be global citizens as well?”
Ban unauthorized group actions, such as hunger strikes, sit-ins and petitions.
All of these activities are actions taken throughout American history to protest perceived wrongdoing. Every civil and human rights gain this country has achieved was preceded by some form of group action! The BOP justifies this denial of the right to protest by saying, “The appropriate, legally authorized method for inmates to formally grieve prison conditions is through the Administrative Remedy Program, which every inmate can use to raise individual complaints…”
To put it bluntly, anyone who knows how that remedy program works in practice cannot help but laugh incredulously upon reading that statement. As the Washington Lawyers Committee for Civil Rights and Urban Affairs stated in a recent report, “The BOP grievance system is dysfunctional and grossly inadequate to address harms to incarcerated persons in federal prisons.” Incarcerated persons often must obtain remedy forms from the individuals who are the subjects of their concern (or their coworkers), and it is not uncommon for prisoners to report that they are outright refused. Likewise, once the forms are completed, they are sometimes conveniently “lost.” If they are eventually filed, strict timelines often result in rejection because the party with which they were filed doesn’t respond promptly, leaving no time to move on to the next step. And then there is the all-too-frequent report of retaliation for filing – including physical abuse and refusal of transfer requests.
“I practiced law for 14 years, but even with all of my experience, I have been unable to exhaust all of the remedies required before going to court because of all of the barriers thrown up,” says one incarcerated individual, Robert Lockwood. “The effect is that we really don’t have a working grievance system.”
A federal prisoner named Deandre Smith offers an example: “During a cell shakedown, my personal property was trashed or taken away from me. Pictures of my family are priceless to me. I asked for the proper forms to file a grievance over two weeks ago and I haven’t received them yet. When I asked again, I was cursed out.” At FCI Cumberland (Maryland), residents report that several staff members – including a member of SIS (the BOP’s version of the FBI) – threaten to plant knives or drugs in prisoners’ cells if they pursue grievances against them.
Our Cumberland members also report that some counselors require prisoners to verbally dictate grievances while in their presence. And the intimidation works. Most decide not to file. Likewise, residents are banned from filing the same grievance submitted by other prisoners, creating the illusion that violations are not widespread.
The bottom line: The BOP clearly does not want prisoners to come together against abusive staff or oppressive institutional practices. Yet as noted earlier, significant change rarely comes when individuals act by themselves (and the BOP knows this).
Prohibit sexually explicit/provocative images and writing.
According to the BOP, such material “poses a danger to the security of the institution….and creates a sexualized work environment, which is potentially disturbing to staff conducting routine searches of inmate property.” This proposed violation leaves too much discretion to agency staff to interpret what “provocative” means: Is a photo of someone’s wife or girlfriend in lingerie or swimsuit “explicit”? The rule also privileges staff “sensibilities” over the need for adults in custody to have a healthy sexual outlet. Staff can go home to spouses and other sexual partners; prisoners cannot – often for decades.
As one of our network members in a Kentucky USP recently wrote:
“Sexual yearnings are as natural as any other human emotion, and perhaps the most powerful. That is especially true in prison, where even the mere exposure to the opposite sex is rare. Forced to live for years and even decades in a toxic brew of abuse, violence and isolation, every healthy man in this environment needs to find some kind of outlet.”
What is also alarming about this proposed change is the inclusion of “writings.” So, the BOP would now be in the business of reviewing novels and even letters from partners, censoring content it deems “erotic”? This reeks of Big Brother and a First Amendment violation, as well as simply a lack of humanity.
Expand ‘lying or making false statements’ to include ‘feigning illness.’
The BOP claims this change will “deter false reports of illness, which not only subvert inmates’ rehabilitative programming requirements, but also may unnecessarily burden staff and result in unnecessary expense.” We do not question that some prisoners may pretend to be ill.
However, proving that someone is “faking it” is very difficult. In addition, malfeasance cannot and should not be assumed when no cause is identified for reported symptoms. There are a range of other, quite likely explanations (including medical error or negligence!). On the other hand, room for abuse of this charge is vast. Consider these reports:
One resident at FCI Cumberland (Maryland) was suddenly unable to eat, throwing up almost everything he ate and drank. When he went to Medical to complain, he was accused of abusing drugs and thus was refused treatment. It was nine days before he was sent to a hospital, where he was diagnosed with and treated for an intestinal blockage.
An adult in custody at USP Beaumont (Texas) complained of intestinal pain and, over the course of 18 months, lost 50 pounds. Medical dismissed him. He was finally sent outside, where he was diagnosed with Crohn’s disease.
Another resident of Beaumont suffered numbness in his left arm, severe dizzy spells, loss of balance and debilitating headaches. Medical said it would pass and sent him back to his unit. The next morning, he couldn’t get out of bed. Finally, they sent him to the hospital. There, he was diagnosed with a stroke. He now has long-term, perhaps permanent, paralysis in his face. And yet, the medical staff at Beaumont refuses to acknowledge the stroke diagnosis, claiming he might have Bell’s palsy.
The dismissal of an individual for “feigning illness” has also led to outright prisoner abuse. Consider the case of Anthony Mammana when he was at FCI Allenwood Low (Pennsylvania). During the fifth year of his seven-year sentence, Mammana began to feel extremely sick after each meal. He visited the medical ward and a physician assistant checked his blood sugar level, then sent him back to his unit. Over the next several days, Mammana continued to feel ill after eating and, each time, sought help from the medical team. After his fifth visit, the PA sent him to the psychologist, since she concluded nothing was physically wrong (although no other tests were done).
When the psychologist found Mammana to be fine and sent him back to the medical ward, the PA refused to see him. Instead, she accused him of “harassment, stalking and interference with the performance of duties.” As a result, Mammana was sent to the “hole,” or segregation in the special housing unit.
In the SHU, Mammana was assigned to a cellmate known for “his deviate sexual behavior forced onto cellmates” and he refused to enter his assigned cell. Staff retaliated by confining him to the “Yellow Room,” regarded by residents as a “mental and physical abuse room.” In the Yellow Room, Mammana was stripped of his clothing and given only a paper-like covering. The Yellow Room was lit by a bright light 24 hours a day and kept uncomfortably cold. Mammana was provided no bedding or toilet paper and only an extremely thin mattress to sleep on.
During that time, Mammana continued to feel ill, yet his requests for medical treatment were refused. He remained in the Yellow Room for four days, until a disciplinary hearing was held regarding the PA’s accusations. The hearing board concluded there was “no basis” for her charges and they were expunged. Yet Mammana remained in segregation for four more months after leaving the Yellow Room.
Reduction in maximum SHU stays for disciplinary reasons.
In addition to the changes in specific prohibited acts, the BOP announced it plans to reduce the maximum amount of time prisoners can spend in the SHU (special housing unit) when they are found guilty of disciplinary infractions. (For example, the maximum number of days a person can be kept in the SHU for the most serious offenses would be reduced from 365 for the first offense to 60.) This is, of course, a good thing – although, on balance, the changes in the prohibited acts (if implemented) would make more people eligible for the SHU.
However, it is important to point out that the vast majority of individuals sent to the SHU are there for administrative reasons, not disciplinary. This means they are part of an investigation, require protective custody or are awaiting transfer. Thus, if BOP Director Colette Peters wants to reduce the toll imposed by a practice that is widely considered barbaric by other Western nations, reforms must include administrative segregation. We are aware of at least one person who has been in the SHU administrative reasons for 14 months!
In addition, the reforms should not be limited to length of stay. More Than Our Crimes receives many complaints about:
- Lack of due process. (The BOP’s own program statement calls for regular reviews of a person’s status, with the results available to them. However, that routinely does not take place.)
- Poor or completely lacking medical care. One man developed severe, painful swelling in his right arm while in the SHU of FCI Victorville (California) and begged for six days to be seen by Medical. Finally, he was examined and sent immediately to the hospital, where he was diagnosed with necrotizing fasciitis. Today, he has lost all use of that arm, permanently.
- Physical abuse. “When I first arrived at FCI Cumberland (Maryland),” one man told us, “staff members routinely four-pointed inmates in the SHU. That has stopped now, but they continue to force us to wear paper clothes as a form of sadistic punishment. Paperwork is faked after the fact to hide it, in violation of BOP policy.”
- No programming and very limited access to outdoor recreation and reading material.
On behalf of the individuals who will be so very directly impacted, More Than Our Crimes asks that the Bureau of Prisons go back to the drawing board. In fact, we’d be happy to help the agency identify a panel of adults in custody who could give direct feedback on its proposals.
