Thomas Silverstein: Judge rules conditions at supermax not "extreme"

silverstein.jpg
Silverstein.
Federal judges in Denver are of two minds about the kind of punishment doled out at the supermax penitentiary in Florence. While one is allowing a Tanzanian terrorist's complaint about the prison's restrictions on his mail and visitors to proceed to trial, another has thrown out Thomas Silverstein's lawsuit alleging cruel and unusual punishment as a result of more than a quarter-century of solitary confinement.

Conditions at the U.S. Penitentiary Administrative Maximum, or ADX, aren't "atypically extreme," Judge Philip Brimmer ruled.

Silverstein isn't subject to the "special administrative measures" reserved for convicted terrorists at ADX, which severely limit their ability to communicate with any outsider, even family or legal counsel. But his journey through the federal prison system has been anything but typical.

A former Aryan Brotherhood leader, "Terrible Tommy" was convicted of four murders while in prison; one was later overturned. He's now serving three consecutiive life sentences plus 45 years. The last killing, the 1983 slaying of a federal guard in the most secure unit of what was then the highest-security federal pen in the entire system, put him on a "no human contact" status that lasted for decades. For close to seventeen years he was housed in a specially designed, Hannibal-Lecter-like cell in the basement of Leavenworth where the lights were on 24 hours a day. In 2005 he was moved to a highly isolated range at ADX, as first reported in my feature "The Caged Life" (which also appears, with a coda, in The Best American Crime Reporting 2008).

Since Silverstein first filed his lawsuit in 2007, with assistance from student lawyers at the University of Denver, he's been moved from his tomb in Range 13 to D Unit, which is considered "general population" at ADX. Inmates are still in solitary confinement and have meals in their cell, but they also have access to indoor and outdoor recreation and can shout to each other. That lessening in the general degree of Silverstein's isolation seems to have been one factor in Brimmer's decision to dismiss the former bank robber's claims of enduring extreme deprivation and lack of any social contact.

U.S. Bureau of Prisons officials maintain that Silverstein's placement in isolation is necessary because of his own extreme behavior -- "plaintiff's disciplinary record, in addition to the aforementioned murders, shows assaults of three staff members, a threat to a staff member, an attempt to escape by posing as a United States Marshal, and the discovery of weapons, handcuff keys, and lock picks in plaintiff's rectum," Brimmer notes.

But Silverstein hasn't been cited for a disciplinary infraction since 1988, and even the BOP's psychologists have rated the 59-year-old prisoner as having a "low" risk of violence for years.

On his official website, maintained by outside supporters -- incarcerated since the 1970s, he hasn't had much opportunity for surfing the Internet -- Silverstein reports that he's still being moved frequently from one cell to another to prevent any kind of ongoing communication with other prisoners. "ALL they care about (obviously) is maintaining my ISOLATION, by any convoluted means necessary," he writes.

More from our News archive: "Mentally ill prisoners in solitary confinement: New bill seeks to stop the madness."

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Nil_Darps
Nil_Darps

In 1944 Jean-Paul Sartre wrote an existential play titled “NoExit” in which three deceased characters are punished by being locked intoa room together for eternity.

The most quoted line from this play is:  “Hell is other people.”

But Sartre may never have envisioned a Supermax prison or asociety that would impose a solitary existence on a living person and if he hadhe might have wrote,

“Solitude is hell on earth!”

And if this is true then Thomas Edward Silverstein has been at the center ofhell for 28 very long years.

His ordeal began when on October 22, 1983 Silverstein brutally murdered Officer Merle Clutts in USPMarion, Illinois.

Within weeks he was whisked away to USP in Atlanta, Georgia where inAugust 1984 the director of the BOP issued a memorandum detailing the “specialsecurity procedures” for Silverstein ordering BOP staff to isolate Silversteinfrom any and all contact with fellow inmates and prison staff for an indefiniteperiod of time.

He remained there for years in complete solitude with noheating, air conditioning and for a period of time not even hot water toshower.

 

During the first year Silverstein was not allowed, socialvisits, to use the telephone, watch television, listen to the radio, have aclock or have any reading materials other than a bible. Not surprisingly even theguards refused to speak to him. 

Silverstein wrote:

“The cell was so small that I could stand in one place and touch both wallssimultaneously.

The ceiling was so low that I could reach up and touch the hot lightfixture.

I became sensitive to light, which burned my eyes and gave me headaches.

The buzzing noise was maddening, as there often were no other sounds at all.

During the summer, the heat was unbearable. I would pour water on the groundand lay naked on the floor in an attempt to cool myself.

My bed took up the length of the cell, and there was noother furniture at all.

I was allowed one hour a week of outdoor recreation. I could not see anyother inmates or any of the surrounding landscape during outdoor recreation.There was no exercise equipment and nothing to do.”

Because of the cell’s size construction soon began to expandand harden it.  

Silverstein wrote: “I was permitted to wear underwear, but I was given noother clothing.

In order not to be burned by sparks and embers while they welded more ironbars across the cell, I had to lie on my bed and cover myself with a sheet.

It is hard to describe the horror I experienced during thisconstruction process. As they built new walls around me it felt like Iwas being buried alive. It was terrifying.”

When construction was finished Silverstein had three,linked 42-square-foot, windowless cells set apart from the rest of theprison population and designed to minimize his contact with prison staff.

I lost some ability to distinguish what was real.

I heard people who I believed to be officers whispering into my vents,telling me they hated me and calling me names. To this day, I am not sure ifthe officers were doing this to me, or if I was starting to lose it and thesewere hallucinations.

I felt like I was in an episode of the twilight zone. I now know that I washoused there for about four years, but I would have believed it was a decade ifthat is what I was told. It seemed eternal and endless and immeasurable.”

In 1987, after a prison riot, the BOP relocated Silverstein to thebasement of USP Leavenworth.The conditions in the basement unit were substantially similar to those heexperienced at USP Atlanta.While in his rat infested basement cell, he could hear no sounds of humanactivity in the prison only the constant buzzing sound of fluorescent lights on24/7 without any access to fresh air or sunlight through recreation orotherwise.

After a year in the basement cell, the BOP transferred him to “thehole” separate from the rest of the facility, where he was the onlyprisoner housed there.

Here the conditions of his incarceration remained substantially the sameas those he experienced in the basement unit and at USP Atlanta: he wasisolated from other inmates and staff, was subjected to continuous lighting andcamera surveillance, and exercised and ate alone in an 144-square foot cellwith a bed, shower, desk, television, and toilet and a separate cell used as anindoor recreation area and a visitation booth.

His phone privileges grew from one call per month, when he first arrived, to300 minutes per month by the time he left USP Leavenworth. While held there hewas provided with one hour of outdoor recreation in a confined, secure spacefive days of each week. However the staff would sometimes leave him in thisoutdoor recreation area for extended periods of time in the snow and bittercold.

During his time in isolation, he used art as a way to ameliorate the“extreme sensory deprivation and social isolation.”

Except for a period of time during December 2002 and January 2003, in whichhe was again temporarily housed in the basement cell, he remained in thiscell for 18 years.

Then on July 12, 2005,the BOP transferred him to the USP Administrative Maximum facility, also knownas “ADX,” in Florence, Coloradothe most restrictive institution in the BOP.

There the BOP had replicated the isolation and other conditions ofconfinement Silverstein had continuously experienced since his 1983 transfer toUSP Atlanta. Hiscontact with fellow inmates and prison staff remained very limited.

Incredibly he actually lost some of the privileges at ADX that he had been previouslygiven at USP Leavenworth; his telephone usage and social visits were reducedand he was given less access to the art supplies he used as a coping mechanism.

While housed on Range 13, he left his cell only for semi-annual reviews andinfrequent haircuts and then he was subject to “invasive” strip searches bothupon exiting and returning to his cell. Silverstein has written about these “invasivestrip searches”, “The forced rectal exams are rape to us!”  

He remained on Range 13 until April 7, 2008, when he was moved to ADX’s “general population” unit,known as “D-Unit.”

Although D-Unit is a “general population” unit, its inmates are still heldin solitary confinement. D-Unit is configured to minimize contact betweeninmates and between inmates and staff. Inmates on D-Unit eat and are allowed twohours of, indoor or outdoor exercise each weekday alone. However, during histime on D-Unit, the BOP has often cancelled his scheduled recreation time.

Initially more restrictive conditions were placed on him than thoseplaced on other inmates in the unit. For example, for several monthsfollowing his transfer to D-Unit, he was housed and allowed recreation only inareas where no other inmates were nearby. Furthermore, he was escorted by threecorrectional officers including a lieutenant while other inmates wereaccompanied by only two CO’s.  Finally,while other inmates receive social and legal visits on Thursdays, Fridays,Saturdays, and Sundays in the presence of other inmates, he was restricted toMondays, Tuesdays, and Wednesdays and outside the presence of other inmates.

In an apparent move to influence the outcome of Silverstein’s suit againstthe BOP only the added visitation restrictions now remain in place. Sadly thissinister maneuver seems to have worked as planned for the bureau.

Judge Philip Brimmer ruled October 5, 2011: “Conditions at the U.S. Penitentiary AdministrativeMaximum, or ADX, aren’t “atypically extreme.”

Silverstein isn’t subject to the “special administrative measures” reservedfor convicted terrorists at ADX, which severely limit their ability tocommunicate with any outsider, even family or legal counsel. But as you justread his journey through the federal prison system has been anything buttypical.

Silverstein reports that he’s still being moved frequently from one cell toanother to prevent any kind of ongoing communication with other prisoners. “ALLthey care about (obviously) is maintaining my ISOLATION, by any convolutedmeans necessary,” he writes.”

So by allowing Silverstein ever so slightly more communication with peoplethan convicted terrorists, no matter how draconian the rest of his livingconditions may be, this allows this judge to claim Silverstein’s condition isnot “atypically extreme”.

And by shuffling their cells, and carefully selecting those within ear shotof each other, the guards keep even shouting between cells to a bare minimum.The BOP has placed rivals nearby to agitate and informants, with questionablecredibility, to report on the give and take between Silverstein and others. Theinformants have everything to gain by inventing or embellishing the goings onbetween such high profile prisoners. All of this, and well placed microphonesto record it all has turned up nothing to indicate Silverstein still remains athreat today.

Mail: Silverstein states his mail is still censored by SIS unlike some ofthe other inmates around him. This procedure leads to bureaucratic delays ofhis incoming and outgoing correspondence. In addition he claims that there arefrequent intentional or unintentional delays in his mails scheduled pickup anddelivery. These delays can lead to significant legal problems when his mandatedfiling deadlines are not met. He also claims that a legal document from hisdefense team which was marked to be opened only in front of Mr. Silverstein hadarrived to him already opened by the SIS staff. And if such legalcorrespondence does miss its deadline the judge is more often inclined tobelieve the CO’s denial of interference then his claim of wrong doing.

Visits: Silverstein says, “mail meddling is part of their desire to cutme off from the outside world—once they alienate you, they try to breakyour hopes, then your resistance. I didn’t get any visits for about 10 years,because of the draconian policy that says we’re not allowed visits from anyonewe didn’t know prior to prison.”

After 35 years of incarceration at a location far from his prior home andfamily Silverstein receives very few visits from his ever shrinking pool ofrelatives and old friends. Referring to this dilemma Silverstein asks “How manyfolks still know people from that long ago?” Only once in the last 27 years hasSilverstein ever been allowed to add one “very special person” to this list.

He goes on to state “The BOP policy statement claims to encourage visits tomaintain family and social ties, but it’s only a ploy to fool the public whenin reality they do just the opposite.”

He gives this example as evidence; “Once my baby sister came to see me allthe way from California, and thegate guards at first wouldn’t let her in.

Finally Silverstein’s ability to mount a robust legal defense to end hisisolation is hindered by, poor education, difficulty in accessing legalmaterials, and his unfamiliarity with computers. (He is only sporadically alloweda maximum of 2 hours at a time on the legal computer with no law booksavailable.)

In Dr. Hanley’s declaration he writes:

Part 2

“Silverstein is caught up in several custodial Catch 22’s.”

Page 41:

“Assessment of his level of threat is based on his past conduct and theabsence of any meaningful change in his cognitive orientation….”

(In other words Silverstein’s resilience to the torture was evidence, inthis BOP employee’s mind, that Silverstein had not been broken and remained adanger.)

Page 56:

 “..the perceived need for thisextraordinary treatment of Silverstein was based primarily if notexclusively on something Mr. Silverstein could not of possibly ofchanged over the past 22 years: ‘his criminal history, his past.’”

Dr. Hanley rightly points out that Silverstein has had ample time and meansto cause the BOP problems and a very good reason to do so in the frustratingtask of dealing with all these custodial Catch 22’s.

In summery, how can Judge Brimmer explain the BOP director’s August 1984memorandum detailing the “special security procedures” for Mr. Silverstein,procedures which have been carried out at each of the three institutions thatSilverstein has been held in every since, and still claim these conditions arenot atypically extreme?

It is clear to me that the BOP planned the easing of Silverstein’s prior atypical“no human contact status” to side step the law suit.

Circe
Circe

I'm sorry, but if I had a loved one in prison I wouldn't want them around this person.  He's killed other prisoners and a guard?Look, you're supposed to do your time in prison, do your best to survive and get out.But what do you do with someone who is going to kill the other prisoners?  Obviously you HAVE to keep them separate.  Marilyn Turner, I know you're outraged by his treatment, but think a moment...how would you feel if you were the sister or the daughter or the mother of one of the men he killed, WHILE he was imprisoned?  How would you feel if the person you cared about and prayed for a return to civilian life was suddenly housed with this person?  Is that right? Is that fair?

Nil_Darps
Nil_Darps

How about this character? Keep in mind that Chappelle was also a convicted killer andthe best friend of Cadillac Smith when reading this story written by a third prisonernamed Eddie Griffin. Excerpts:

 

“They called him Casper,because he had killed 10 men in AtlantaFederal Prison.

 

Nobody ever saw him. He left no evidence, other than theslit throat of his victims. Over a period of years, during the 1970s, the FBInever caught him. That is how he got the nickname Casper,the Unfriendly Ghost.

Strange that we would become friends and he would becomeone of my trainers… a man with a claw for a hand, a convicted murderer.

He had a killer’s instinct and he thirst for it. And, therewas little doubt in my mind that he would kill me at the drop of a hat pin.

 

I would be the survivor who came out of prison alive. But mycounterpart died.

 

My counter-part was Raymond Smith-el, a Moorish Science ofAmerica gladiator, known as the Sword of Justice, street named “Cadillac”.

 

Cadillac laughed. He always laughed in the face of hisenemies. And, there were times when his psychotic laughter caused even me toquiver. To hear him laugh was not good, not good at all for somebody.

It was said of the Moors in prison that they could kill a man, stash theweapons where no one on earth could find them, wash their clothes and dry them,before prison officials could ever discover the body. As far as I know, the FBIhad never been able to pin a murder on a Moors.”

Now as for as the guard goes Pete Earley wrote in The Hot House:

Page 393: Referring to Clutts and Silverstein, Ralph Seever, a legendarylieutenant who had spent his career at Leavenworth and was revered by guards asthe best there ever was explained, “Inmates expect guards always to tell themno and punish them when they violate the rules. It’s all part of the game, “Butyou never want, the relationship to get personal.” He warned.

Whenever an inmate believes for some reason that the natural conflictbetween convicts and officers is personal, his ego is at stake, and in apenitentiary, image is a thousand times more important than reality.”

Page 233: “To this day,Silverstein claims that Clutts set out to break him by harassing him in a dozenpetty ways that most guards learn early in their careers.”

Officer Clutts knew there were possible consequences of this harassmentfor he had learned this lesson the hard way early into hiscareer in an event that foretold his own demise.

On January 26, 1969, Officer Merle E. Clutts found the body of his superior, SeniorOfficer Vern M. Jarvis, in a utility closet. Jatvis had been stabbed 26 times.

The murder of Jarvis was committed by James K. Marshall also a convictedbank robber with a 25 year sentence. The motive, Officer Jarvis had confiscatedhis candy, fruit and magazines when he was placed Marshallin segregation.

In an audio recording of an interview conducted by Earley, Silversteinexplains his own motive in murdering Clutts:

16:25Silverstein: I think he was just selling me wolf tickets. But he didn't know Iwas taking him serious.

AS MANY KILLINGS THAT I HAVE SEEN WHEN SOMEONE SAYS HE IS GOING TO KILL YOU,YOU CAN’T SIT BACK AND SAY AWE IT AIN’T NOTHING AND DO NOTHING.

When somebody has gone that far especially when you’re telling him you don'twant no trouble why don't you get off my case.

You know, I PLEADED WITH THAT GUY…

Silverstein said he was living "in constant fear of reprisals"when on October 22, 1983,he eliminated this threat on his life.

Like Marshallbefore him, Silverstein received a life sentence.

This is where the similarities between the two cases end.

On March 29, 1972 Marshallwas transferred to Oregon Department of Corrections and was later paroled fromhis federal sentence in 1982.

However Silverstein’s life sentence came with a “no human contact” orderattached to it and with no achievable release date therefore he will die inprison.

In his recent apology to the world Silverstein wrote:

 "Even writing this declaration, I feel mywords of regret are inadequate to explain the remorse I feel. There is nojustification for what I did.”

 But there is logic behind his actions, even ifit is only understandable by other inmates that

Nil_Darps
Nil_Darps

 But there is logic behind his actions, even if it isonly understandable by other inmates that have also been trapped like tetheredanimals in a slaughterhouse!

Robert Chase
Robert Chase

Oh, that brilliant jurist, Philip Brimmer!  Conditions at Supermax are not "atypically extreme", they are typically extreme, and that makes them OK.

Nil_Darps
Nil_Darps

In 1971 a nineteen year old Silverstein entered San Quentin in the middle ofwhat Edward Bunker called a “War Behind Walls” in his 1972 Harpers Magazine article.

Here are two excerpts:

“...they stabbed every white on the tier, all of whomwore white jumpsuits, for they had just gotten off bus and had no idea theywould be attacked for being white. One died, and one vaulted the railing toavoid the stabbing blades broke both his angles on the concrete below….

Men without friends, those tryingto quietly serve a term and get out, were in the worst predicament. They had noallies. Warriors stayed together, knew many of their opposition, suspectedothers from hairstyle, mannerism, and association.”

So maybe this atmosphere contributed to Silverstein joining the AB?

Released four years later he is rearrested shortly thereafter for armedrobbery along with his crime partner, none other than his own Father! 

The first murder, was denied by Silverstein:

On appeal a three-judge panel of the U.S. Court of Appeals for the TenthCircuit said it was appalled by the quagmire of conflicting testimony andrecanted statements…The judges ordered federal prosecutors to either dismissthe murder charge against Silverstein or conduct a new trail.”

There was no retrial.

The environment at Marion when Silversteinarrived there:

Between January 1980 and October 1983, there were more seriousdisturbances at Marionthan at any other prison, including fourteen escape attempts, ten groupuprisings, fifty-eight serious inmate-on-inmate assaults, thirty-three attackson staff, and nine murders.

Second murder trial, in which Silverstein also denied committing:

When called to the stand to testify Norman Matthews… was askedwhether he could remember November 22, 1981, he replied, "It was the day I killed Chappelle."

Did the judge improperly excluded this testimony? Third murder is not denied by Silverstein but it was committed only after Smith had failed intwo documented attempts to kill him.

(Smith had been a close friend of Chappelle’sand the leader of their prison gang. Smith had been moved to a cell next toSilverstein from another institution after Chappelle's death in what appears to be a set up by the authorities involved.)

Excerpts from Pete Early’s, book “Hot House”.

“I tried to tell Cadillac that I didn’t kill Chappelle, but he didn’tbelieve me and bragged that he was going to kill me,”

Silverstein recalled. “Everyone knew what was going on and no one didanything to keep us apart. The guards wanted one of us to kill the other.”

Enter guard Clutts the fourth victim.

In an audio recording of an interview conducted by Earley, Silversteinexplains his motive: 16:25 Silverstein: I think he wasjust selling me wolf tickets. But he didn't know I was taking him serious.

AS MANY KILLINGS THAT I HAVE SEEN WHEN SOMEONE SAYS HE IS GOING TO KILL YOU,YOU CAN’T SIT BACK AND SAY AWE IT AIN’T NOTHING AND DO NOTHING.

When somebody has gone that far especially when you’re telling him you don'twant no trouble why don't you get off my case.

You know, I PLEADED WITH THAT GUY…

On Saturday morning October 22, 1983, Silversteinpreempted any other possible set up by killing Clutts.

 

In his recent apology to the worldSilverstein wrote:

 

“There is no justification forwhat I did.”

 

But there is a certain logic behind hisactions, even if it is only understandable by other inmates that have also beentrapped like tethered animals in a slaughter house!

Sodalite
Sodalite

I say turn him loose in the child sex offender block.

Hudd52
Hudd52

IF HE HAD BEEN PUT TO DEATH AFTER THE FIRST HOMICIDE HE WOULD NOT HAVE THIS PROBLEM

Carl Toersbijns
Carl Toersbijns

This is typical response from the judicial systems that create divisions or levels of acceptable treatment versus unacceptable treatment in solitary confinement. It is likely that if this prisoner was mentally ill, he would have been provided the required consideration for his complaint filed but since his placement inside this unit is based on behavioral issues and not mental issues the justice system has defined boundaries that apply and not apply. I think that that is most appropriate given the case that not all solitary confinement placements are unreasonable and inappropriate for validated gang members, terrorists and other disruptive group members.

After all, I worked inside a SMU for many years and can tell you that the assignment is most appropriate for behavioral managment but not for mental health treatment. There should however be criteria to allow steps to a reduced custody level or housing assignment based on the prisoner's ability to adhere to rules and regulations  and other incentive based programming. The first and utmost important step is to be free from any gang activity for at least 4 years and pass a polygraph to be eliigble for step down with clear conduct history as well as mental health assessments of their individual personality traits and history. Of course, this is an anecdotal opinion with no facts to prove either right or wrong... in other words, just my opinion.

Michael Roberts
Michael Roberts

Very interesting post, Carl -- one we're going to make an upcoming Comment of the Day. Congrats.

Marilyn Turner
Marilyn Turner

This is outrageous,I beg all your readers to make their voices heard against the decision more than 10,000 days in isolation and its not extreme. the Gitmo detainees have it better. I am absolutely devastated and Tom will not know about the decision yet, so I am concerned what he will feel upon this new blow to him. Terrorist, child abusers, gang bangers all on the street and treated better. America wouldn't let this happen to an animal why a man?

Brien McDonough
Brien McDonough

What kind of psychosis makes a person see "Tom" as a victim of ANYTHING? "Tom" has willfully extingushed enough lives with his bare hands that he has removed HIMSELF from the man category. Unlike you, I have no concern for the way he "feels" upon hearing this news in fact I hope it hits him like the FATAL blows he inflicted on the completely innocent people he murdered in clod blood. Good luck with your insanity Marilyn, perhaps "Tom" will make a fine prison husband for you someday.

Mrttt
Mrttt

He deserve it

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