'New' Rules for the BOP's Experiment in Social Isolation

By Alexis Agathocleous, Senior Staff Attorney at the Center for Constitutional Rights

Last week, the federal Bureau of Prisons (BOP) quietly published a final rule governing conditions and policies at the Communications Management Units (CMUs) -- two highly restrictive prison units that segregate certain prisoners and sharply restrict their access to family, loved ones, and the outside world. Astonishingly, this rule emerges almost nine years after the Bush administration secretively opened the first CMU in Terre Haute, Indiana, in 2006, and almost five years after the BOP was flooded with criticism during a public comment period about the units. Even with all the time they had, the BOP's long-overdue attempt to explain what these prison units are, and how they function, clarifies very little.

Instead, the rule simply codifies the harsh restrictions on telephone calls and visitation -- such as a blanket ban on any physical contact with visitors, including one's children -- that have been in place at the CMUs for years. In fact, the BOP has authorized itself to make the CMUs even harsher than they already are. For the first time, the BOP says that it may restrict letters, phone calls, and visits at the CMUs to immediate family members only, that it may give CMU prisoners only six pieces of paper a week to write letters, and that CMU prisoners may be restricted to as little as four hours of visits a month. Despite the BOP's insistence that a CMU is nothing more than a "general population housing unit" that triggers no due-process protections, the new rule confirms that the CMUs are in fact among the most restrictive prison units in the United States.

Nor does the new rule correct the fundamental breakdown of constitutional protections at the CMUs. In 2010 four CMU prisoners represented by the Center for Constitutional Rights (CCR) -- Avon Twitty, Daniel McGowan, Kifah Jayyousi, and Yassin Aref -- brought a civil rights lawsuit alleging systematic violations of their rights at the units. The case, Aref v. Holder, has brought to light evidence that CMU prisoners have been denied due process at every step. CCR has submitted documents to the federal district court demonstrating that the BOP officials deciding who should be sent to a CMU have differing, and sometime contradictory, interpretations of the criteria used to designate prisoners to the CMUs. These officials are not required to document their reasons for deciding that a particular prisoner should be sent to these harsh units -- despite the grave consequences of their decision. Documents unearthed by CCR reveal that when prisoners are told why they have been sent to a CMU, these explanations are vague, incomplete, inaccurate, and sometimes even false. Without basic and accurate information, prisoners are powerless to challenge their designations and have languished in these units, cut off from their families and loved ones, for years at a time. Unsurprisingly, not a single prisoner has ever successfully appealed his placement in a CMU.

This lack of oversight and transparency has created a situation ripe for abuse. Since the CMUs opened, Muslim prisoners such as Aref, Jayyousi, and Twitty have been massively overrepresented at the units. Other prisoners -- like McGowan -- have explicitly been sent to the CMUs because of their political beliefs and activities. The new rule does nothing to change, correct, or enhance the process by which prisoners are singled out for CMU designation; instead, the BOP has left its broken procedures intact and has stood by its assertion that CMU prisoners are not entitled to due process.

Aref v. Holder is awaiting a decision, and a federal court will soon rule on whether the BOP has been violating CMU prisoners' rights for almost a decade now. The Center for Constitutional Rights has asked the court to order the BOP to implement meaningful procedures at the CMUs, borrowing from those they already use at other restrictive units like the Special Management Units. Instead of waiting for a court order, the BOP should have taken this opportunity to protect the rights of prisoners rather than failing to act for nine years only to maintain the status quo.

The law firm Weil Gotshal & Manges LLP and the Portland Law Collective are co-counsel in the case.