U.S. Department of Justice

National Institute of Corrections

Supermax Prisons
U.S. Department of Justice

National Institute of Corrections

320 First Street, NW

Washington, DC 20534

Morris L. Thigpen

Director

Larry Solomon

Deputy Director

George M. Keiser

Chief, Community Corrections/Prisons Division

Randy Corcoran

Project Manager

National Institute of Corrections

World Wide Web Site

http://www.nicic.org
Supermax Prisons 

and the Constitution

Liability Concerns in the

Extended Control Unit

William C. Collins, Esq.

Attorney at Law 

November 2004

NIC Accession Number 019835
This report was funded by the National Institute of Corrections (NIC) under technical assistance number

2004P1089. Points of view or opinions stated in this document are those of the author and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
To the vision and memory of Susan Hunter.
v

Abstract

is intended to help prisons operate ultra-highsecurity facilities in a way that minimizes liability

in litigation. The monograph covers the background of supermax prisons and related litigation,

and it takes a close look at case law, prison policies and practices, and “lessons learned” in

operational areas that give rise to litigation.

Abstract

Extended control units (ECUs), or “supermax” prisons, house a prison system’smost dangerous inmates. Because of the

restrictions that go with the extraordinarily high

level of security such inmates require, these facilities sometimes function at the limits of what is

constitutionally acceptable and are, therefore, frequent targets of inmate litigation. This monograph
vii

Contents

Abstract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chapter 1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Defining the Supermax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Living on the Constitutional Edge: A Review of Case Law . . . . . . . . . . . . . . . . . . . .8

Early Litigation About Long-Term Segregated Housing . . . . . . . . . . . . . . . . . . . .8

Litigation About ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Chapter 2. Mental Health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Providing Medical Care in Prisons: Guidance From the Courts . . . . . . . . . . . . . . .13

What Is a “Serious Medical Need”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

What Is “Deliberate Indifference”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mental Health Issues in the ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

SHU Syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Who Should Not Go to the ECU? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ECU Mental Health Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Contents
Transferring Inmates for Mental Health Treatment . . . . . . . . . . . . . . . . . . . . . . . 23

Involuntary Medication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Chapter 3. Medical Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Confidentiality Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Service Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Role of the Custody Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Health Insurance Portability and Accountability Act (HIPAA) . . . . . . . . . . . . . . . . . . 30

Permission To Share Medical Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Access to Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Implications for ECUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chapter 4. Other Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

How Courts Analyze Conditions of Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Objective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Subjective Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

No “Totality of Conditions” Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Basic Human Needs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Personal Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Food and Clothing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Sanitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

Chapter 5. Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Excessive Force: Some Contributing Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Use of Force: The Legal Test and Its Application in Madrid. . . . . . . . . . . . . . . . . . 42

Avoiding Use of Excessive Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Tools for Control, Oversight, and Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Videotaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Post-Incident Medical Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Chapter 6. The 14th Amendment: Due Process and Placement . . . . . . . . . . . . . . .47

Operational Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Due Process, Segregation, and ECU Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

What Process Might Be Due?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

viiiSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
The Traditional View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

A Contrary View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Due Process and the Quality of Placement Decisions . . . . . . . . . . . . . . . . . . . . . . . 54

Meaningful Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Calling Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Thorough Investigation: The Key to Fair Decisions . . . . . . . . . . . . . . . . . . . . . . . . 57

Evidentiary Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58

Quality of Information: The Institution’s Responsibility . . . . . . . . . . . . . . . . . . . . .60

Workload Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Periodic Reviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Gang Membership as Grounds for ECU Placement and Retention . . . . . . . . . . . . . 61

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Chapter 7. Access to the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Supreme Court Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

The Institution’s Obligations Under Lewis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Limits on the Scope of Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

“Actual-Injury” Requirement for Access Litigation . . . . . . . . . . . . . . . . . . . . . . .67

Experimenting With Alternative Legal Resource Programs . . . . . . . . . . . . . . . . .68

Paging Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Inmates Who Are Unable To Use Legal Materials . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Chapter 8. The First Amendment: Religion, Speech, and the Press . . . . . . . . . . .71

Supreme Court Test for Evaluating First Amendment Restrictions . . . . . . . . . . . . . 71

The Religious Land Use and Institutionalized Persons Act . . . . . . . . . . . . . . . . . . . 73

Inmate Religious Practices Not Mandated by Faith . . . . . . . . . . . . . . . . . . . . . . . . . 73

Sincerity of Beliefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Closing Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

ixContents
xi

Foreword

clean, and brightly lit, with varying levels of

structured programming intended to give the

inmates a means of demonstrating they can be

moved back to the general prison population.

Nevertheless, the ECU remains a source of potentially serious litigation. The very strict controls

and sterile living conditions that are inherent in

the ECU concept give the administrator little constitutional margin of error.

This monograph highlights the major legal concerns associated with the ECU and offers some

suggestions for addressing them. The intent of

this monograph is to help “supermax” prisons

operate in a way that minimizes liability in

inmate litigation. However, it does not nor can it

substitute for legal advice from an agency’s counsel who is familiar with both the prevailing law in

a jurisdiction and the specific circumstances of

the agency’s ECU that are critical to proper application of basic legal principles.

Morris L. Thigpen, Director

National Institute of Corrections

November 2004

Foreword

Controlling the most dangerous, recalcitrant,

aggressive, and antagonistic inmates in a prison

system is one of the greatest challenges men and

women working in corrections face. These inmates require the highest levels of security and

control a prison system can muster. Yet, they

remain subject to the protections of the

Constitution. 

In years past, these inmates were locked in “segregation” or “administrative segregation” or, in the

jargon of the Yard, “the hole.” These units sometimes were filthy, rundown, hellholes where brutality was common. Such conditions and practices

made the units ripe for court intervention, which

often occurred.

The “seg unit” that might have housed inmates

classified as threats to the security of the institution next to other inmates serving disciplinary

sanctions has, in many states, given way to a

much more sophisticated type of facility: the

extended control unit (ECU), a.k.a. the “supermax.” Still devoted to housing the most dangerous

offenders, the ECU bears little physical resemblance to the “seg unit” of the past. It may be new,
xiii

Acknowledgments

My editor, Lynn Marble, struggled to rearrange

my garbled legalese into something more organized and readable. 

While all of these people helped get the project

through from beginning to end, any substantive

errors in this work, any misstatements, any

inaccurate legal analysis, remain entirely my

responsibility. 

Bill Collins

November 2004

Acknowledgments

For various reasons, completing this monograph

has not been an easy task. Several people deserve

credit and thanks for carrying it through to completion. Chase Riveland began the effort when he

asked me to contribute a legal issues chapter to

his NIC monograph, Supermax Prisons: Overview

and General Considerations (NIC, 1999). The

late Susan Hunter’s vision saw the need for the

expanded product that you now hold. 

The project stumbled along the way, but Randy

Corcoran at NIC invited me to pick it up again

and supported the effort through to completion.
xv

Executive Summary

Introduction

Extended control units (ECUs) house a prison

system’s most dangerous inmates. The extraordinarily high level of security in ECUs—and the

restrictions that go with that security—mean that

these facilities sometimes function at the limits of

what is constitutionally acceptable. It is not surprising, therefore, that ECUs are the target of

inmate litigation. 

The purpose of this monograph is to help prisons

operate ultra-high-security facilities in a way that

minimizes liability in inmate litigation. The

monograph covers the background of supermax

prisons and related litigation, and it takes a close

look at case law, prison policies and practices,

and “lessons learned” in operational areas that

give rise to litigation: mental health, delivery of

medical services, other conditions of confinement, use of force, due process, access to the

courts, and religious practices. 

Executive Summary
Chapter 1. Background

Although known by various names, ECUs all perform essentially the same function: providing

long-term segregated housing for inmates who

pose the highest security risk. Placement in an

ECU results from a classification decision, not a

disciplinary violation, and that placement usually

is for an extended period. Not all ECUs are the

same, and conditions within an ECU may depend

on an inmate’s status in a level program for earning return to less restrictive housing. At the

strictest level, ECU inmates typically live in neartotal isolation and idleness. Because ECU conditions are extremely restrictive, these facilities

operate on the edge of constitutionality and are,

therefore, vulnerable to inmate lawsuits.

ECUs resemble traditional long-term administrative segregation units, which have been the subject of inmate litigation since the 1960s. ECUspecific case law to date is limited. The first

case to capture national attention, Madrid v.

Gomez, was a wide-ranging attack on operations

at the Pelican Bay Special Housing Unit in

California. In a 138-page opinion rendered in

1995, the trial judge in Madrid upheld the fundamental concept of the high-security unit but cataloged numerous constitutional violations and

operational problems. 

Case law trends suggest that mental health issues

will pose the greatest legal challenges to ECUs.

Other, more traditional issues include medical care,

operational matters such as use of force and due

process, and various conditions of confinement. 

Chapter 2. Mental Health

The prison’s constitutional obligation (under the

Eighth Amendment) to provide medical care—

i.e., not to be deliberately indifferent to the serious medical needs of inmates—underlies the

unique mental health-related issues confronting

ECUs. At the heart of these issues is a basic

dilemma: the level of security and control

required to manage the behaviors that bring

inmates to the ECU may be harmful to the mental

condition of some inmates and, therefore, in violation of their constitutional rights.

Debate continues about the nature of “SHU 

[special housing unit] syndrome” and the extent

to which conditions of isolation in the ECU may

contribute to deterioration of inmates’ mental

health. However, there appears to be general

agreement that ECUs are, to some extent, hazardous to the mental health of inmates with certain types of mental conditions. Some of these

inmates should not be placed in an ECU at all,

and others may require very careful monitoring in

the ECU and may have to be removed from the

ECU should their mental condition deteriorate.

This concern suggests several preventive steps:

■ Screening criteria. Develop criteria to screen 

out some inmates from admission to the ECU

altogether. 

■ Screening process. Develop a process for

effectively applying these screening criteria. 

■ Monitoring. Implement a process for constantly monitoring the mental status of ECU

inmates and criteria for determining when

transfer out of the unit is warranted. 

xviSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
■ Removal. Implement a process for transferring inmates out of the ECU if they meet the

monitoring system’s criteria for removal. 

■ Quality assurance. Consider developing a

quality assurance system or audit process as

a strategy for addressing legal challenges to

screening and monitoring procedures.

■ Mental health care. Provide ongoing diagnosis and treatment for mental health conditions. This is the “standard” level of service

expected in any prison, and clearly a requirement in the ECU.

■ Staffing. Maintain staffing levels in accordance with the services to be provided.

Operating an ECU mental health program

short-handed is an invitation to litigation and

court intervention.

■ Medication. Be aware of legal constraints

concerning involuntary medication, and have

procedures in place for medicating inmates

whose serious mental illness presents a threat

to themselves and others.

Chapter 3. Medical Services

Providing medical care to ECU inmates involves

operational challenges and legal concerns,

although the constitutional issues are not as great

as those associated with mental health. Staffing

requirements for delivering medical services are

likely to be greater in the ECU than in other units.

Confidentiality of medical information is an issue

in the ECU, especially when services are delivered at the cell front. ECUs need enough custody

officers to avoid delays when inmates must be

escorted out of the unit to receive medical care.

ECUs should also be aware of the custody officer’s role in the medical care delivery system and

take steps to avoid inmate complaints related to

that role. Finally, corrections agencies should

determine how privacy regulations under the

Health Insurance Portability and Accountability

Act (HIPAA) may affect their ECU operations.

Chapter 4. Other Conditions

of Confinement

With regard to certain conditions of confinement

(personal safety, food and clothing, shelter, sanitation, and exercise), issues in ECUs differ from

issues in general population settings only as a

matter of degree. The basic legal test is the same:

do the conditions harm the inmate or present a

serious risk of substantial harm, and are officials

deliberately indifferent to that risk. The ECU’s

very strict environment may increase the risk of

harm to some inmates (especially the mentally ill)

or for some conditions (e.g., exercise).

Intensity and duration of exposure may make

defense of allegedly poor conditions more difficult in ECUs than in general prison settings. In

general settings, the effects of poor conditions in

cells may be mitigated if inmates are out of their

cells most of the day to participate in programs,

jobs, and other activities. The inmates may be

exposed to the poor conditions only a few hours

per day. But ECU inmates rarely leave their cells

and never leave the unit; if poor conditions exist,

the inmates’ exposure is constant. Whereas lack

of exercise is rarely an issue for inmates in the

general population, it is, to some extent, a fact of

life for ECU inmates. 

xvii Executive Summary
As noted in the Madrid case, conditions in modern ECUs, which remove so much of inmates’

opportunity for human contact, “may press the

outer bounds of what most humans can psychologically tolerate” and sometimes exceed those

bounds for some inmates. This observation, and

its implications for the conditions discussed in

chapter 4, should be acknowledged by officials in

planning and operating ECUs.

Chapter 5. Use of Force 

Use-of-force issues are bound to arise in facilities

that house the most violent inmates in a prison

system. Reliably detecting improper use of force

and responding effectively when it occurs may be

the greatest legal and management challenges in

properly operating an ECU. If management lets

use of force get out of hand, the consequences—

patterns of abuse and a code of silence among

staff—are difficult to correct.

Proactive management steps are required to

ensure that ECUs avoid use of excessive force

and meet the legal test courts use in evaluating

force incidents. An institution should be able to

defend its uses of force if it lays a proper foundation through policies, training, supervision, and

documentation. Staff involved in force incidents

must write accurate reports of what happened.

Videotapes and post-incident medical examinations are also useful. Thorough documentation

has management as well as evidentiary uses. If

use of force is not properly controlled and a pattern of misuse develops—along with a code of

silence among staff about incidents of abuse—

management has failed.

Chapter 6. The 14th

Amendment: Due Process

and Placement 

Courts are uncertain as to whether placement in

long-term confinement under the very restrictive

conditions associated with the typical ECU

imposes an atypical deprivation on an inmate and

therefore requires due process protections. Until

the courts speak more clearly on whether and

what kind of due process is required in placement

decisions, corrections agencies would be prudent

to provide basic procedural protections that are

likely to meet a court’s requirements. Such protections also serve prison officials’ own interests

in having an effective placement decisionmaking

process. These protections include the following:

■ Notify the inmate of the proposed placement.

In the notice, explain the reason for the

placement. 

■ Give the inmate an opportunity to respond

to the notice in an informal, nonadversarial

meeting with officials.

■ Base placement decisions on reliably determined facts. In the nonadversarial context of

the placement decision, “reliably determined”

focuses more on the institution’s investigatory

process than on resolution of factual disputes

at the meeting with the inmate. 

■ Determine the reliability of informants and

the information they provide.

■ Conduct periodic reviews to determine the

need for continued segregation. Give the

inmate an opportunity to provide input for

retention decisions. 

xviii Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
If a corrections agency has such procedures in

place, it has two choices in responding to lawsuits

that claim deprivation of due process in segregation placement and retention decisions. It can

argue, under the Supreme Court’s 1995 decision

in Sandin v. Conner, that no due process protections apply. Or it can point to its procedures as

proof that protections were provided. Even if the

courts finally agree that no due process requirements apply to these decisions, prisons will benefit from having a systematic, fair, fact-based

decisionmaking process.

Chapter 7. Access to the

Courts 

ECU inmates have the same fundamental right

of access to the courts as other inmates. ECU

inmates tend to be very litigious, and institutions

should expect them to challenge any program that

does not provide full access to a complete law

library or extensive assistance from persons

trained in the law. However, under the Supreme

Court’s 1996 decision in Lewis v. Casey, inmates

must demonstrate actual injury before they can

have standing to raise an access-to-courts claim. 

The prison’s affirmative duty is to provide some

level and form of resources to support, in a meaningful way, inmates’ right of access to the courts.

Traditional paging systems (through which

inmates request materials to be delivered to

them), once generally found inadequate by the

courts, may pass muster under Lewis if the institution can demonstrate that the system works

properly. However, any library-based system does

not meet the needs of inmates who cannot read

English; these inmates require some form of legal

advice. 

In Lewis, the Supreme Court invites prison administrators to experiment with how they fulfill

their duty to provide meaningful legal resources.

Such experiments might include systems that use

CD–ROM or Internet technology. Any system a

prison uses to provide legal resources in the ECU

is sure to be challenged at some point. 

Chapter 8. The First

Amendment: Religion,

Speech, and the Press 

The restrictive environment of the ECU can raise

First Amendment issues. In considering inmates’

demands regarding religious and other types of

activities, corrections officials should be aware of

how the courts may review their response.

In the 1987 Turner v. Safely case, the Supreme

Court defined a four-part test for evaluating

whether a particular First Amendment restriction

is justified. Institutions have not found it difficult

to meet this test, which basically requires a reasonable connection between a restriction (e.g., not

allowing ECU inmates to attend group religious

services) and a legitimate penological interest

(e.g., security). In 2000, Congress passed the

Religious Land Use and Institutionalized Persons

Act, which imposes a more stringent test with

regard to restrictions on inmate religious practices: to justify such a restriction, an institution

must show why a less restrictive alternative was

not possible. In general, an institution’s defense

of a challenged restriction should not rely solely

on an argument that a particular practice is not

mandated by the inmate’s faith or that the

inmate’s religious beliefs are not sincerely held.

xixExecutive Summary
Closing Thoughts 

The concept of the ECU—the “supermax

prison”—is now embedded in American corrections. A major challenge for agencies that operate

these facilities lies in recognizing just how many

legal issues can arise and supervising operations

accordingly. 

The most significant issues concern inmates who

are mentally ill (or whose behavior suggests they

may be mentally ill). Should some inmates never

be placed in an ECU? Does living in an ECU

actually harm the mental status of some inmates?

Where does a prison system place inmates who

present a significant security risk but cannot live

in an ECU?

Even setting these issues aside, ECUs may be the

most difficult type of prison to operate, in that the

inmates they house and the management strategies used to control them give rise to a prison system’s most concentrated, intense legal concerns.

Services that are especially critical from a legal

perspective—e.g., health care and access to the

courts—are difficult to deliver in ECUs, and use

of force is an ever-present issue.

The keys to avoiding legal pitfalls and reducing

liability exposure are the same in the ECU as anywhere else in the prison system:

■ An informed assessment of the needs and

characteristics of the target population. 

■ A clearly defined mission and a comprehensive plan of operation. 

■ Careful development of policies and procedures, with a close eye to legal issues. 

■ Funding and staffing commensurate with the

identified needs and mission. 

■ Training to promote a skillful and knowledgeable workforce.

■ Perhaps most importantly: commitment on

the part of supervisors and managers to

ensuring humane and legal operations. 

If these factors are ignored, the end result may

well be intervention by the courts.

xxSupermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
1Introduction

Introduction 

“Supermax” prisons—fad, trend, or

wise investment?

Thus began Chase Riveland’s earlier

monograph on prisons intended to house

inmates who pose a prison system’s highest security risks.1

To those words, one can add “source of litigation

and controversy.”

Long before the name “supermax” was coined,

prison systems maintained long-term, high-security

segregation units to house inmates unsuitable for

general population settings. Conditions and practices in those units have been the subject of

litigation and occasionally substantial court

involvement since the earliest days of the “inmate

rights” movement in the late 1960s. Conditions

have changed a great deal since these early cases

were litigated. However, modern supermax prisons sometimes function at the limits of what is

constitutionally acceptable. 

1 Chase Riveland, Supermax Prisons: Overview and

General Considerations, Washington, DC: U.S. Department of Justice, National Institute of Corrections,

1999. 
Although operating models for supermax prisons

vary, the extraordinarily high level of security

required—and the restrictions that go with that

security—mean that, even under the best of circumstances, these facilities operate very close to

the edge of what the Constitution allows. Many

inmates housed in supermax prisons have a

volatile and dangerous nature, making violent

confrontations with staff a common threat. Human

rights organizations have been quick to criticize the

very concept of the supermax prison.2 Given these

circumstances, it is not surprising that modern

supermax prisons are the target of litigation,

sometimes brought by one inmate over a single

incident, sometimes brought by a class of inmates. 

At the time of Riveland’s monograph, only one

major supermax case had been litigated to a conclusion. Another had been settled. As these words

are written in 2004, still only a handful of major

cases have been concluded, and the courts of

appeal have provided virtually no direct guidance.

However, it is apparent that the major issue

emerging in supermax litigation relates to mental

health: Are there categories of inmates who,

because of their mental condition, cannot be

housed in the supermax environment? Are conditions so restrictive and debilitating that they cause

serious mental health problems for some inmates

and necessitate removal from the supermax

environment? 

Two district court decisions discussed in the

following pages have accepted both of these

premises. The decisions impose screening requirements to prevent some inmates from being

transferred to an ultra-high-security setting and

monitoring requirements to allow for removal of

inmates whose mental state may deteriorate while

they are in such a setting. Neither of these decisions has been reviewed by a court of appeals.

These holdings raise an obvious question: If some

inmates who require housing at the highest level

of security cannot be placed or retained in the

typical supermax environment, what sort of setting

can accommodate both the safety and security

risks these inmates present and their serious

mental health needs. The California Department

of Corrections, currently under a “screening/

monitoring” order because of litigation at the

Pelican Bay Special Housing Unit (SHU), responded by creating psychiatric security units in

its prison system. 

Mental health issues aside, the volatile nature of

supermax inmates and the very restrictive conditions of supermax facilities can lead to a variety

of more “traditional” legal issues such as those

related to delivery of basic medical care and use

of force. Avoiding liability when these issues give

rise to litigation requires a combination of carefully developed policies, adequate funding, and close,

strong supervision of facility operations.

The purpose of this monograph is to help prisons

operate ultra-high-security facilities in a way that

minimizes liability in inmate litigation. The first

chapter provides background information on

supermax prisons and the history of litigation

concerning them. Subsequent chapters take a

close look at case law, prison policies and practices, and “lessons learned” in seven operational

areas that raise constitutional issues for supermax

facilities:

2Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

2 Roy D. King, “The Rise and Rise of Supermax: An American Solution in Search of a Problem,” Punishment and

Society 1(2):163–184, 1999. 
■ Mental health.

■ Delivery of medical services.

■ Other conditions of confinement (personal

safety, food and clothing, shelter, sanitation,

and exercise).

■ Use of force.

■ Due process in placement/retention decisions.

■ Inmate access to the courts.

■ Religious practices. 

3Introduction
5Background

1

Background

This chapter first outlines the defining

characteristics of supermax facilities. It

then traces the history of litigation involving long-term segregation of inmates generally

and segregation in supermax facilities specifically.

Defining the Supermax 

What is a “supermax” prison? Riveland refers to

the term as the “generic descriptor” for a relatively new type of maximum-security prison that is

often freestanding.3 The media, the public, and

some corrections departments often use “supermax,” but these facilities are also known as special housing units (SHUs), special management

units (SMUs), intensive management units

(IMUs), or “maxi-maxis.” This monograph generally uses “extended control units” (ECUs), the

name chosen by Riveland. 

Regardless of what they are called, these units

have basically the same function: to provide longterm, segregated housing for inmates classified

as the highest security risks in a state’s prison

CHAPTER

3 Riveland, Supermax Prisons: Overview and General

Considerations, p. 5. 
system. The phrase “worst of the worst” has been

used to characterize the ECU population. 

In many respects, the ECU resembles the traditional long-term administrative segregation unit,

which typically remains in a prison system when

an ECU is introduced. The ECU takes the most

challenging inmates from the administrative segregation unit. It is, in a sense, a “super” administrative segregation unit.

Placement of an inmate in an ECU generally

results from a classification decision, not a disciplinary violation. The assumption underlying an

ECU placement is that it will be for a relatively

long time. Even in ECUs that include a program

of levels or steps by which inmates can earn their

way back to less restrictive housing, progress

through most of the levels takes several months or

longer. An inmate placed in an ECU is likely to

remain there for at least 12–24 months, if not

longer.

ECUs are intended to hold inmates who require

the highest level of security, but the percentage of

inmates who fit this category varies widely from

state to state. A survey conducted by the National

Institute of Corrections in 1996 found that 28

states and the Federal Bureau of Prisons had or

were developing “supermax” housing as defined

by the survey.4 Of these 29 systems, 11 indicated

that 1 percent or less of all inmates were in the

supermax category, 7 indicated 5–8 percent, and 1

state said that 20 percent of its inmates required

supermax housing. The survey findings raise the

question of whether some jurisdictions may be

overclassifying inmates into very expensive

prison beds. 

All ECUs are not the same, and conditions for

individual inmates within an ECU may depend on

the inmate’s level of progress toward removal

from the unit. Some common characteristics of

ECUs at the strictest levels include the following:

■ Inmates are locked up 22 to 23 hours per day.

■ Inmates have very limited contact with other

people—staff or other inmates.

■ Exercise is limited to no more than 1 hour a

day, 5 days a week.

■ As few as three showers per week are

allowed.

■ Commissary, visiting, telephone, and library

privileges are much more limited than those

available to the general prison population.

■ Inmates have little or no access to work, religious activity, rehabilitation, or other programs or activities to occupy time. Almost

complete idleness is the norm. Any available

programs or services are usually offered in

the cell or at the cell front. Some facilities

now offer limited programming via closed

circuit TV. 

■ When inmates leave their cells, they are in

restraints and usually are escorted by more

than one officer. If an escort is unavailable,

the out-of-cell opportunity may be lost.

6Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

4 “. . . a free-standing facility or a distinct unit within a facility that provides for the management and secure control of

inmates who have been officially designated as exhibiting violent or serious and disruptive behavior while incarcerated.

Such inmates have been determined to be a threat to safety and security in traditional high-security facilities, and their

behavior can be controlled only by separation, restricted movement, and limited direct access to staff and other inmates.”

National Institute of Corrections (NIC), Supermax Housing: A Survey of Current Practice, Washington, DC: U.S.

Department of Justice, NIC, 1997, p. 1. 
■ The opportunity to earn good time for work,

program participation, or behavior is limited

or eliminated.

■ No TVs or radios are allowed.

■ Strip searches are common.

In some ECUs, the cells have no windows. If the

cell also has a solid front door, the inmate has little or no exposure to natural light. Some lighting

in the cell may remain on all night. Any outdoor

exercise usually takes place in a high-walled box

with only the top open to the sky or in small

chain-link enclosures sometimes referred to as

“dog runs.” Inmates typically exercise alone, or

perhaps with one other inmate. 

Some ECUs now offer group therapy or discussion sessions. Each participant is placed in an

individual holding unit (like a large telephone

booth). The participants can talk directly to the

group leader and each other without having physical access to anyone in the group. 

In facilities with a level system, some restrictions

may ease as an inmate progresses through the levels. Out-of-cell activities increase, and the inmate

gains privileges. However, the inmate may not

have to step far out of line to be returned to a

lower level, and it typically takes a long time to

move back up through the system’s levels. 

Limitations on staff-inmate contact in ECUs vary

from facility to facility, even for inmates at the

most restrictive level. Some ECUs essentially isolate inmates (see sidebar, “Life at Pelican Bay”).

Other ECUs, while keeping inmates locked in

their cells most of the time, may encourage

greater cell-front contact between staff and

inmates.5 As the discussion in chapter 2 demonstrates, the frequency and nature of staff contact

may be an important consideration in evaluating

the effect of ECU conditions on inmates’ mental

health.

7Background

P

elican Bay State Prison opened in 1989 to

house California’s most serious criminal

offenders. In a major case involving Pelican

Bay’s SHU, the judge wrote about the extent of

social isolation.a Inmates lived in single cells. Their

cells had no windows, although skylights afforded

some natural light. The interior was designed to

reduce visual stimulation. Inmates exercised alone.

Doors to the exercise area opened electronically,

and inmates stripped naked in front of a control

booth. The defendants’ expert testified that the

SHU “attempted to reduce physical contact

between inmates and staff to the extent possible . . . . ”b Another expert witness, a former federal warden, described the conditions as “virtual

total deprivation, including, insofar as possible,

deprivation of human contact.”c

a Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

b Id. at 1229.

c Id. at 1230.

Life at Pelican Bay

5 NIC, Supermax Housing: A Survey of Current Practice, p. 4.
Living on the

Constitutional

Edge: A Review

of Case Law 

The fact that an ECU’s extremely restrictive conditions

place it at the very edge of

what is constitutionally permissible suggests that, with

properly developed policies

and procedures, it can function

in a constitutionally acceptable

fashion. However, if courts

continue recent trends, today’s

ECU may inherently step over the constitutional

edge with regard to mental health issues for some

inmates. 

Early Litigation About Long-Term

Segregated Housing 

Before supermax prisons or extended control

units were “invented,” long-term administrative

segregation units housed inmates who could not

live safely in less restrictive settings. Conditions

and practices in these units were the subject of

some of the earliest “inmate rights” litigation. 

One of the first examples of court intervention in

prison operations came more than 35 years ago in

a California federal district court. The 1966 case

of Jordan v. Fitzharris arose from an inmate’s

confinement in a punitive segregation “strip cell”

in California’s Soledad Prison.6

The court summarized the conditions as being “of a shocking

and debased nature [that

required court intervention] to

restore the primal rules of a

civilized community....”7 In

this case, officials conceded

that they disliked confining

inmates in the conditions the

court found shocking but did

not know what else to do with

inmates like the plaintiff. 

Inmate litigation related to

administrative segregation units continued in the

1970s and 1980s. During this period, the courts

addressed issues such as religious observance,

due process requirements, mental health services,

and conditions of confinement.8 During the 1990s,

as state prison systems began to introduce ECUs,

evolving case law regarding inmate rights may

have changed the legal tests that courts apply in

evaluating prison conditions or practices.9

Regardless of the name given to long-term segregation units, inmates placed in these units will

challenge the living conditions and the limitations

on rights and privileges. As the following review

of ECU-specific litigation shows, the courts will

intervene when they find violations of inmates’

rights. 

8Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Regardless of the

name given to 

long-term 

segregation units,

inmates placed in

these units will

challenge the living

conditions and the

limitations on 

rights and 

privileges.

6 Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).

7 Id. at 679.

8 See Giampetruzzi v. Malcom, 406 F. Supp. 836 (S.D.N.Y. 1975), requiring that inmates be allowed to hold weekly religious services; Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976), dealing with due process requirements for placement; Nelson v. Collins, 455 F. Supp. 727 (M.D. Md. 1978), relating to mental health services; Toussaint v. McCarthy,

801 F.2d 1080 (9th Cir. 1986), dealing with due process requirements for placement and periodic review and limiting the

prison master’s role in overseeing placement decisions; and Davenport v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987),

ordering that inmates be allowed three showers per week and 5 hours of exercise per week.

9 See Wilson v. Seiter, 501 U.S. 294 (1991), ending the “totality of conditions” approach to analyzing conditions of confinement; and Sandin v. Conner, 515 U.S. 472 (1995), changing the method by which courts determine whether decisions

relating to inmates are protected by due process. 
Litigation About ECUs 

Reported decisions regarding conditions and practices in ECUs are few. The first case that received

national attention was the 1995 Madrid v. Gomez

decision involving the SHU at California’s Pelican Bay State Prison.10 In 2001, the Supermax

Correctional Institution (renamed the Secure

Program Facility in 2002) in Boscobel, Wisconsin, was the subject of a similar suit, Jones’El v.

Berge.11

In mid-2003, the New Mexico Department of

Corrections settled a lawsuit concerning solitary

confinement for inmates at the highest custody

levels. The inmates’ lawyers said that the settlement “removes people with mental disorders

(from solitary confinement), provides treatment

and makes solitary confinement more tolerable.”12

The settlement also relaxed some of the stricter

conditions of confinement.

Ohio litigated issues concerning its maximumcustody facility, the Ohio State Penitentiary, in a

2002 case, Austin v. Wilkinson.

13 In Taifa v. Bayh,

litigation about conditions and practices in an

Indiana extended control facility that opened in

1991 resulted in a consent decree.14

Taifa and Madrid are noteworthy in that both

cases were filed within a year or so after the prisons opened, which means that the alleged problems were present in the facilities virtually from

the day they opened. After a long and bitterly

contested trial, the court in Madrid ordered relief

regarding:

■ Basic medical and mental health services.

■ Use of force.

■ Placement of certain groups of inmates in the

ECU.

The court refused to grant relief regarding the

procedures California used to place inmates in the

facility or to remove them from it. Although the

court held that conditions were constitutionally

intolerable for some mentally ill inmates, it rejected plaintiffs’ argument that the entire concept

of the facility was inherently unconstitutional. 

In Taifa, the defendants agreed to an order that

addressed:

■ Assignment to and transfer out of the unit.

■ Expanded provisions for medical care.

■ Mandatory psychiatric examinations for all

incoming inmates.

■ Policy regarding the use of force.

The Taifa order also dealt with other issues,

including commissary privileges, access to radios

and TVs, expanded visiting and phone privileges,

additional reading materials and personal property,

less night lighting in cells, improved bedding,

increased educational opportunities, access to a

substance abuse program, and improved grievance

procedures.

9Background

10 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

11 Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).

12 Steve Terrell, “Corrections Department Settles Prison Lawsuit,” The New Mexican, May 22, 2003.

13 Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D. Ohio 2002), affirmed in part, reversed in part, 372 F.3d 346 (6th Cir.

2004). 

14 Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994). For a discussion of the litigation and the prison in question, see Cold

Storage: Super-Maximum Security Confinement in Indiana, published in 1997 by Human Rights Watch, New York, NY.
Madrid was a sweeping attack on the operation of

Pelican Bay. The complaint challenged everything

from the fundamental concept of the ECU prison

to a variety of operational concerns. The scope

and seriousness of the lawsuit

are reflected in the massive

138-page opinion the trial

judge wrote. While upholding

some aspects of the operation

of Pelican Bay, including the

fundamental concept of the

unit’s high-security nature, the

judge commented that conditions in the facility “may press

the outer bounds of what most

humans can psychologically

tolerate . . . . ”15

Much of the Madrid opinion is

a detailed catalog of what can go wrong with the

operation of this type of prison. The opinion

chronicles errors in planning, initial staffing,

training, and supervision. It finds constitutional

violations regarding excessive force, medical and

mental health care, and conditions of confinement

for some inmates. 

The Wisconsin (Jones’El) and Ohio (Austin) decisions both touch on a variety of issues, but the

Wisconsin case is particularly noteworthy because

of its focus on problems with mentally ill inmates

in ECUs—a major issue in Madrid. The Ohio

case takes a controversial stand on the levels of

due process that must be afforded inmates as part

of the ECU admission process.

None of the reported decisions and settlements

discussed above comes from a court of appeal.

All are federal district court decisions. Madrid

was not appealed. (The Austin decision recently

was largely affirmed on appeal; see discussion in

chapter 6.) Given the general lack of appellate

decisions, a definitive discussion of what courts

may require of ECUs is a bit

speculative. However, trial

court decisions to date show a

trend indicative of issues likely

to arise around ECUs, including the following:

■ Whether inmates with certain mental illnesses must

be excluded from ECU

placement.

■ The extent to which conditions in the ECU may cause

mental illness in some inmates,

and the ongoing screening

process that must exist to ensure that these

inmates are removed if their mental condition

deteriorates past a certain point. 

■ Adequacy of medical care.

■ Operational issues, such as the use of force,

that may be tied closely to the quality of staff

training and supervision.

■ Specific conditions in ECUs, such as cell

lighting.

Of these issues, those regarding mental health are

the most serious and are also unique to the ECU.

The mental health issues raise the fundamental

question of whether certain inmates can even be

placed in an ECU and/or held there for an extended period of time. Other issues, such as medical

care, use of force, and conditions of confinement,

10Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Given the general

lack of appellate

decisions, a definitive discussion of

what courts may

require of ECUs is 

a bit speculative.

15 Madrid, 889 F. Supp. at 1267.
are more “traditional,” in that they have long been

common subjects of inmate litigation in general.

Summary 

Although known by various names, ECUs all perform essentially the same function: providing

long-term segregated housing for inmates who

pose the highest security risk. Placement in an

ECU results from a classification decision, not a

disciplinary violation, and that placement usually

is for an extended period. Not all ECUs are the

same, and conditions within an ECU may depend on an inmate’s status in a level program for

earning return to less restrictive housing. At the

strictest level, ECU inmates typically live in neartotal isolation and idleness. Because ECU conditions are extremely restrictive, these facilities

operate on the edge of constitutionality and are,

therefore, vulnerable to inmate lawsuits.

ECUs resemble traditional long-term administrative segregation units, which have been the

subject of inmate litigation since the 1960s. ECUspecific case law to date is limited. The first case

to capture national attention, Madrid v. Gomez,

was a wide-ranging attack on operations at the

Pelican Bay SHU in California. In a 138-page

opinion, the trial judge in Madrid upheld the fundamental concept of the high-security unit but

cataloged numerous constitutional violations and

operational problems. 

Case law trends suggest that mental health issues

will pose the greatest legal challenges to ECUs.

Other, more traditional issues include medical

care, operational matters such as use of force, and

various conditions of confinement. 

11Background
13Mental Health

2

Mental Health

Eighth Amendment issues related to mental

health present unique challenges for

ECUs. It may even be constitutionally

impossible to keep certain inmates in the ECU,

and it may not be enough for institutions simply

to say “we deliver mental health care within our

four walls.”

This chapter focuses on these issues. It considers

the possibility that the ECU environment can

actually cause an inmate’s mental health to deteriorate. It also looks at mental status as a factor in

ECU placement and removal. Before turning to

these specific issues, the chapter discusses general

legal requirements for providing medical care to

prison inmates.

Providing Medical Care in

Prisons: Guidance From the

Courts 

In 1976, in Estelle v. Gamble, the Supreme Court

made it clear that the prison has a constitutional

duty to provide medical care to inmates: “[O]fficials may not be deliberately indifferent to

CHAPTER
[inmate] serious medical needs.”16 This protection

extends to ECU inmates. The duty from Estelle

applies to mental health needs of inmates, as well

as their physical health needs.17 Although there is

no unique legal test for assessing medical or mental health care in ECUs, these facilities can have

unique problems in delivering adequate care.

What Is a “Serious Medical Need”? 

Courts use various definitions of “serious medical

need.” These definitions are inherently subjective,

and all are somewhat vague. Probably the clearest

test says that a need is “serious” when a doctor or

other medical professional has diagnosed a condition as “mandating treatment [or the condition is

such that] even a lay person would easily recognize the necessity of a doctor’s attention.”18

But what if a medical professional has not seen

an inmate to make a diagnosis, and the inmate’s

condition is not obvious to a lay person? The

Ninth Circuit has said a condition is serious if

failure to treat it “could result in further significant injury or the unnecessary and wanton infliction of pain.”19 The court elaborated:

the existence of an injury that a reasonable doctor or patient would feel

important and worthy of comment or

treatment, the presence of a medical

condition that significantly affects an

inmate’s daily activities, or the existence of chronic and substantial pain

...are examples of indications that

a prisoner has a “serious” need for

treatment.20

Thus, general factors relevant in defining serious

medical need include the following:

■ Presence of ongoing pain.

■ Diagnosis by a competent medical

professional.

■ Threat that the condition will worsen if not

treated.

■ Problem obvious to a lay person. 

Many physical conditions are easily categorized

using one or more of these criteria. Anyone can

see that a broken bone is serious. Medical professionals will usually agree on many, if not most,

diagnoses. But when it comes to mental conditions, gray areas are more likely. In The Mentally

Disordered Inmate and the Law, Fred Cohen

acknowledges this and cites the following definition adopted by the Ohio Department of Corrections as part of a consent decree:

Serious mental illness means a substantial disorder of thought or mood

which significantly impairs judgment,

behavior, capacity to recognize reality

or cope with the ordinary demands of

life within the prison environment and

is manifested by substantial pain or

disability. Serious mental illness requires a mental diagnosis, prognosis,

and treatment, as appropriate, by mental health staff.

21

14Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

16 Estelle v. Gamble, 429 U.S. 97 (1976).

17 Fred Cohen, The Mentally Disordered Inmate and the Law, Kingston, NJ: Civic Research Institute, 1998, p. 4-3. This

encyclopedic work is an excellent resource for use in analyzing legal requirements applicable to mentally ill inmates and

the related practical demands on corrections agencies.

18 Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176 (11th Cir. 1994); Gaudreault v. Municipality of Salem,

923 F.2d 203 (1st Cir. 1990).

19 McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992).

20 Id. at 1059–1060.

21 Cohen, The Mentally Disordered Inmate and the Law, p. 2-6, n. 5.
Cohen also acknowledges that

“there simply is not one clear

definition or predictive certainty as to what is or is not a serious mental disorder...even

[diagnoses like schizophrenia

or bipolar disorders] are often

in the eye of the beholder.”22

However, regardless of how a

court chooses to define “serious,” it is safe to assume that at

least some ECU inmates will

have mental health problems that require professional attention. 

What Is “Deliberate Indifference”? 

The concept of deliberate indifference, although

somewhat vague, is clearer than the concept of

serious medical need. In 1994, the Supreme Court

defined “deliberate indifference” as an official’s

actual knowledge of an excessive risk to the

health or safety of an inmate, combined with the

official’s disregard of that risk; i.e., the official

fails to make some sort of reasonable response to

the known risk.23 Note that deliberate indifference

embraces the risk of harm. Inmates need not have

died or gotten sick for a court to find deliberate

indifference if conditions create a substantial risk

of serious harm.24

Prison officials have long recognized that physically ill or injured inmates sometimes must be

treated in hospitals outside the prison. If an

inmate needs treatment the prison cannot provide

within its walls, not moving the inmate to the

appropriate facility would clearly constitute

deliberate indifference. ECU

administrators might bemoan

the cost of transporting an

inmate to a hospital for necessary surgery and providing

security while the inmate is

hospitalized, but they would

not argue that security concerns justify not providing the

surgery or performing it in a

makeshift facility in the ECU.

It is becoming increasingly

clear that the same principle applies to some ECU

inmates who are mentally ill: they cannot be

cared for in the ECU and must be moved to an

environment set up for mental health treatment.

Mental Health Issues in 

the ECU 

Not surprisingly, the types of behaviors that make

placement in an ECU likely are commonly associated with mental illness. In the Madrid trial, the

warden of Pelican Bay testified that “by virtue of

its mission, Pelican Bay now houses most of the

psychiatrically disabled inmates who have a history of violent and assaultive behavior.”25 A mental health expert who testified on behalf of the

defendants said that “inmates in an ECU include

those with a borderline personality disorder,

[who] when they’re locked up (in segregation)

may have a tendency to experience some transient

psychoses, which means just a brief psychosis

that quickly resolves itself when they’re removed

from the lockdown situation.”26 A legislative audit

of the Wisconsin supermax facility in Boscobel

15Mental Health

Not surprisingly, 

the types of 

behaviors that

make placement in

an ECU likely 

are commonly 

associated with

mental illness.

22 Ibid., p. 4-33. The phrase “often in the eye of the beholder” has particular significance for litigation in which the result

is heavily influenced by expert testimony.

23 Farmer v. Brennan, 511 U.S. 825 (1994).

24 Helling v. McKinney, 509 U.S. 2475 (1993).

25 Madrid, 889 F. Supp. at 1215.

26 Id. at 1216.
16Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

27 Jones’El, 164 F. Supp. 2d at 1115. 

28 Terry A. Kupers, “The SHU Syndrome and Community Mental Health,” Community Psychiatrist, summer 1998.

29 Stuart Grassian, “Psychopathological Effects of Solitary Confinement,” American Journal of Psychiatry

140:1450–1454, 1983. 

30 Stuart Grassian and Nancy Friedman, “Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary

Confinement,” International Journal of Law and Psychiatry 8:49–75, 1986.

found that, in 2001, 15 percent of the facility’s

inmates suffered from mental illness, as indicated

by their receiving psychotropic medications.27

An ECU is the predictable end-of-the-line setting

for the inmate who acts out, creates disturbances,

violates disciplinary rules, and constantly causes

problems. Mental illness may contribute to this

type of inappropriate, disruptive, and potentially

dangerous behavior. Prisons will want to send

such inmates elsewhere, to get rid of a source of

trouble. This may be particularly true if the prison

has limited mental health care resources and is

not equipped to house inmates in segregated confinement for long periods of time. Absent some

other alternative, strong pressures will develop

in a prison system to transfer mentally troubled, acting-out inmates to increasingly secure

facilities—a path leading inevitably to the supermax unit, if one exists.

This scenario contains a dilemma. The very environment that offers the security and control

appropriate for dealing with the type of behavior

such inmates exhibit may make their mental condition worse and may result in a violation of the

Eighth Amendment.

SHU Syndrome 

“SHU syndrome” is a name given to what one of

the concept’s proponents describes as “a little

known form of psychiatric decompensation”

caused by conditions in the ECU unit.28 The concept finds its origin in a 1983 article by Dr. Stuart

Grassian, based on his examination of 14 inmates

who had brought a class action regarding solitary confinement at Walpole State Prison in

Massachusetts.29

In the Grassian study, each inmate was interviewed by one of two psychiatrists for approximately 30 minutes. The study included a review

of the inmates’ medical and confinement records

but not a full clinical history. Dr. Grassian concluded that several inmates displayed one or more

psychiatric symptoms. In a subsequent article,30

he combined his observations at Walpole with a

review of recent literature and earlier (late 19th

and early 20th century) German reports on the

effects of solitary confinement to define a

syndrome associated with solitary confinement.

This syndrome included the following symptoms:

■ Massive, free-floating anxiety.

■ Hyperresponsivity to external stimuli.

■ Perceptual distortions and hallucinations in

multiple spheres (auditory, visual, olfactory).

■ Derealization experiences (surroundings seem

unreal and unfamiliar).

■ Difficulties with concentration and memory.

■ Acute confusional states, at times associated

with dissociative features, mutism, and subsequent partial amnesia for those events.

■ Emergence of fantasies that are primitive,

ego-dystonic (i.e., incompatible with one’s 

self-concept), and aggressive.

■ Ideas of reference (i.e., perceiving oneself as

the center of attention) and persecutory

ideation, at times reaching delusional

proportions.
■ Motor excitement, often

associated with sudden,

violent, destructive, or selfmutilatory outbursts.

■ Rapid subsidence of

symptoms upon termination of isolation.

Although Grassian did not use

the phrase, the syndrome he

described has become known

as “SHU syndrome.”31

The list of symptoms Grassian

associated with the syndrome

has expanded. “ . . . [i]t is made

up of official diagnoses such as

paranoid delusional disorder,

dissociative disorder, schizophrenia and panic disorder.”32 “The list of the most common symptoms

are the ones identified by Grassian, though Dr.

Kupers [an expert on SHU syndrome] does not

believe that someone with SHU syndrome must

experience any of the Grassian symptoms and can

experience others.”33

SHU syndrome has not been accepted in the

American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders–

Fourth Edition (DSM–IV), and mental health professionals disagree as to whether it is an “accepted diagnostic classification [or] merely a

17Mental Health

concept...[, i.e.,] a set of

symptoms and the existing

diagnoses describe the phenomenon.”34 Regardless of scientific or professional questions

about SHU syndrome, however,

the important fact in a discussion of legal issues for ECUs

is that at least two courts have

specifically recognized that

conditions of confinement in

an ECU can lead to serious

mental injury for some

inmates. 

The judge in the Madrid case

(involving the Pelican Bay

SHU in California) noted the

following:

Defendants’ expert Dr. Dvoskin agreed

that segregation may exacerbate preexisting mental illness and that inmates

who are in acute psychiatric distress or

suicidal depressions should not be

placed in the SHU, absent a few “very,

very rare exceptions.”

As defendants’ expert conceded,

there are certain people who simply

“can[no]t handle” a place like the

Pelican Bay SHU. Persons at a higher

risk of mentally deteriorating in the

31 SHU syndrome has been the subject of a number of articles, primarily in law reviews or other law-related publications.

A Google search of the Web did not reveal professional mental health literature on the topic. See Craig Haney and Mona

Lynch, “Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” NYU

Review of Law and Social Change 23:477, 1977; and Comer v. Stewart, 230 F. Supp. 2d 1016, 1025, n. 18 (D. Ariz.

2002) 

32 Jones’El, 164 F. Supp. 2d at 1096, 1101.

33 Comer, 230 F. Supp. 2d at 1016, 1056. Comer involved litigation concerning an Arizona death-row inmate who wanted

to abandon his legal appeals and face execution. His legal counsel challenged his competency to make this decision,

arguing among other things that he was suffering from SHU syndrome. The court accepted that an inmate could suffer

from the affliction, but after reviewing extensive expert testimony, decided that Comer did not. 

34 Id. at 1055, quoting a Federal Bureau of Prisons psychiatrist. 

The important fact

in a discussion of

legal issues for 

ECUs is that at least

two courts have

specifically 

recognized that

conditions of 

confinement in an

ECU can lead to

serious mental

injury for some

inmates. 
SHU are those who suffer from prior

psychiatric problems, borderline personality disorder, brain damage or

mental retardation, or an impulseridden personality.35

The judge in the Jones’El case (involving the

Wisconsin SHU) was more specific:

Confinement in a supermaximum security prison such as Supermax is known

to cause severe psychiatric morbidity,

disability, suffering and mortality.

Prisoners in segregated housing units

who have no history of serious mental

illness and who are not prone to psychiatric decompensation (breakdown)

often develop a constellation of symptoms known as “[Segregated Housing

Unit] Syndrome.” Although SHU

Syndrome is not an officially recognized diagnostic category, it is made up

of official diagnoses such as paranoid

delusional disorder, dissociative disorder, schizophrenia and panic disorder.

The extremely isolating conditions in

supermaximum confinement cause

SHU Syndrome in relatively healthy

prisoners who have histories of serious

mental illness, as well as prisoners who

have never suffered a breakdown in the

past but are prone to break down when

the stress and trauma become exceptionally severe. Many prisoners are not

capable of maintaining their sanity in

such an extreme and stressful environment; a high number attempt suicide.36

(Emphasis added.)

Absent court decisions to the contrary, these findings in Madrid and Jones’El virtually compel the

conclusion that corrections departments need

effective screening procedures to prevent certain

inmates from ever entering the ECU and equally

effective monitoring procedures to identify ECU

inmates whose mental state is deteriorating and

then move them to a more appropriate environment. If a department is unwilling to accept this

principle and finds itself the subject of litigation

based on the concept of SHU syndrome, it must

be prepared to convince the judge that its ECU

environment does not have a negative impact on

inmates’ mental health. 

An alternative to focusing on legal defense strategies would, of course, be to design and operate

the ECU in such a way as to minimize factors

that arguably cause the mental deterioration that

even the defendants’ expert in Madrid conceded

took place for some inmates. This approach

would require such things as reducing the level of

physical and social isolation characteristic of the

modern ECU—indeed perhaps restructuring the

entire concept of the facility. 

Who Should Not Go to the ECU? 

In Madrid, the court identified categories of mentally ill inmates who could not be placed in the

Pelican Bay SHU. The list initially included

inmates in the following categories:

■ Already mentally ill.

■ Borderline personality disorders.

■ Brain damage.

18Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

35 Madrid, 889 F. Supp. at 1235, 1236. 

36 Jones’El, 164 F. Supp. 2d at 1101, 1102.
■ Mental retardation.

■ Impulse-ridden personality. 

■ History of psychiatric problems or chronic

depression.37

The court later modified this list after reviewing

extensive work by Pelican Bay’s Special Master

(court-appointed monitor) and his mental health

expert, Dr. Jeffrey Metzner, who had not testified

in the trial. The court deleted “borderline” and

“impulse” personalities from the list and refined

the remaining categories to include inmates diagnosed with:

■ A mental disorder that includes being actively

suicidal.

■ A serious mental illness that is frequently

characterized by breaks with, or perceptions

of, reality that lead the individual to significant functional impairment.

■ An organic brain syndrome that results in a

significant functional impairment if not treated.

■ A severe personality disorder that is manifested by frequent episodes of psychosis or

depression and results in significant functional impairment.

■ Mental retardation with significant functional

impairment.38

The court later approved an “exception to the

SHU exclusion process” by which an inmate with

one or more exclusion factors could be returned

to the SHU from a treatment unit if both of the

following conditions are met:

■ Clinicians provided documented evidence of

repeated treatment failures, determined that

further treatment would not improve the

inmate’s mental health condition, and established an appropriate system for monitoring

the inmate after return to the SHU. 

■ Corrections officials determined that security

concerns precluded placement in a unit other

than the SHU. 

As of July 2003, Pelican Bay had not invoked this

exception.39

One knowledgeable observer has defined a

“Madrid Exclusion Standard” as follows:

Documented diagnosis of evidence of any of

the following DSM–IV—Axis I conditions currently in existence or within the preceding

three months:

1. Schizophrenia (all subtypes).

2. Delusional disorder.

3. Schizophreniform disorder.

4. Schizoaffective disorder.

5. Brief psychotic disorder.

6. Substance induced psychotic disorder 

(excluding intoxication and withdrawal).

7. Psychotic disorder [not otherwise 

specified].

19Mental Health

37 Madrid, 889 F. Supp. at 1265.

38 Madrid v. Gomez, Remedial Order re: Exclusion From the Security Housing Unit, December 15, 1995, unreported. 

39 Author’s discussions with the Pelican Bay Special Master.
20Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

8. Major depressive disorder.

9. Bipolar disorder I or II.40

Although an ECU’s particular

circumstances may affect the

categories or severity of problems that warrant an inmate’s

exclusion, the California and

Wisconsin cases have two clear

messages for all ECUs:

■ Agencies need thoughtfully

developed categories for

presumptively excluding

inmates from placement in

the ECU on the basis of

existing mental health

conditions. 

■ Agencies need to carefully

monitor the mental health

condition of inmates in the

ECU to determine whether the condition of a

particular inmate has deteriorated to the point

where the inmate must be moved to another

setting. 

If certain inmates’ behavior warrants confinement

in the ECU but their mental condition precludes

placement in the ECU or demands removal from

it, it stands to reason that corrections agencies

will experience pressure to create psychiatric

security units that can address both the security

requirements and the treatment needs of these

inmates. Following the Madrid decision, California developed such units. According to the

judge in Jones’El, the Wisconsin Department

of Corrections could transfer inmates from its

supermax prison to the Wisconsin Resource

Center (operated by the Department of Health and

Family Services) or to a mental health unit in

another state prison.41 Inmates

from the Colorado State Penitentiary (considered by the

state’s corrections department

to be an ECU) can be transferred to a state mental hospital.42 Details of what a “highsecurity mental health unit”

should look like and how it

should be operated are subjects

for a future monograph. 

ECU Mental Health

Lawsuits 

As summarized in the sidebar

“A Case Study in ECU Mental

Health Litigation,” the preliminary injunction hearing in the

Wisconsin Jones’El case illustrates how a “typical” ECU mental health case is

likely to unfold. Wisconsin had created screening

and monitoring systems intended to divert mentally ill inmates from the supermax facility. Those

systems were challenged, and their fate was largely determined by mental health experts who

offered conflicting testimony in an adversary proceeding. Were Wisconsin’s systems actually failing to operate as intended? The court clearly

believed this to be the case. Or were the Wisconsin defendants simply unable to convince the

court that the supermax facility was operating

acceptably?

In cases such as Jones’El, the nature of the adversary process essentially requires the judge to

Agencies need

thoughtfully 

developed 

categories for 

presumptively

excluding inmates

from placement in

the ECU on the

basis of existing

mental health 

conditions. 

40 John Stoner, Ph.D., Management of Violent, High Risk, and Supermax Offenders, Washington, DC: U.S. Department of

Justice, National Institute of Corrections, 2002. 

41 Jones’El, 164 F. Supp. 2d at 1102. 

42 Author’s conversation with Dr. John Stoner, head psychologist at the Colorado State Prison. 
21

T

Mental Health

his case study is derived from records of

the preliminary injunction hearing in the

Wisconsin Jones’El case, in which plaintiffs

raised mental health-related issues about confinement in the state’s supermax facility in Boscobel.a

Screening. The corrections department had set up

a three-level mental health screening process for

inmates referred to its supermax facility. The first

screening took place at the sending institution,

where each inmate considered for transfer to the

supermax was examined by a psychologist or psychiatrist to determine whether the inmate could

be safely transferred. The second screening was

performed by a psychiatrist at the department

level. Finally, when an inmate arrived at the supermax, he was screened again by facility mental

health staff. The record indicated that some

inmates had been screened out at each of the

three levels.

Inmates new to the facility (and those who had

failed a step of the facility’s multistep program)

were housed in a unit where security and restrictions were greater than in other units. These

inmates were screened by a mental health specialist once a week. Other inmates were interviewed

by the specialist at the cell front once a month.

Mental health and unit staff reviewed inmates

weekly in unit meetings. A psychologist was

assigned to any inmate diagnosed as mentally ill,

and the psychologist would see the inmate as

often as deemed clinically necessary. Any inmate

on mental health medications would also be seen

by a psychiatrist and would be observed regularly

by the nurse who delivered medication to the cell.

Mental health staff could recommend transfer of

an inmate to another facility. 

This sounds like a prison system that is paying substantial attention to inmate mental health issues.

But when the plaintiffs’ mental health expert

toured the supermax for 3 days and examined

records of 20 inmates, he found that two records

lacked the initial screening report (i.e., the report

that was supposed to be part of the initial referral

process), one had the report completed a year

after the inmate arrived at the supermax, and

another had an incomplete report (it overlooked

the inmate’s several earlier hospitalizations for

mental health reasons). These failings led the

expert (and the court) to question the quality of

the initial screening procedures. By contrast, however, the defendants’ expert examined records of

100 supermax inmates and found the necessary

screening report in all of them. He felt that the

absence of reports noted by the plaintiffs’ expert

was not routine. The court did not accept this

view.b

Monitoring. The monitoring program also came

under severe criticism from the plaintiffs’ expert,

who interviewed 20 inmates as part of his 3-day

tour (some chosen because they were taking psychotropic medication, some pointed out by other

inmates as having mental health problems, and

others selected at random) and another inmate on

the telephone, after his tour. He concluded that 8

of these 21 inmates were suffering from psychiatric reactions to conditions in the supermax

facility and that these 8 inmates reflected a larger,

general problem throughout the facility. The court

accepted his testimony over that of the defendants’ expert, who offered contrary opinions, and

ordered that five of the eight be transferred out

of the supermax and that two others who had

already been transferred not be returned to the

supermax. 

The court also ordered that all inmates currently in

the supermax who met certain criteria be examined by mental health professionals not employed

by the corrections department. If these examinations found an inmate to be seriously mentally ill,

that inmate could not be housed in the supermax.

Conflicting Diagnoses: An Example. The plaintiffs’

expert concluded that one inmate he had

A Case Study in ECU Mental Health Litigation

continued on page 22
22Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

interviewed was suffering auditory hallucinations

and “massive anxiety” despite strong psychiatric

medication and that this inmate’s condition was

attributable to the continuing stress of being in

the supermax and to the facility’s lack of a mental

health program.c In the interview with the expert,

the inmate said he heard voices constantly commanding him to kill himself or hurt others, saw

things (including demons), and thought the guards

were out to get him. This inmate was taking 300

milligrams of Thorazine twice daily. 

The prison’s mental health staff offered a different

view. This inmate had been seen by the psychiatrist, who commented about the inmate’s “clear

and crisp” thinking during an interview conducted

about 4 months before the interview by the plaintiffs’ expert. Within 2 weeks of seeing the plaintiffs’ expert, the inmate told the psychiatrist that

he was sleeping relatively well and that the Thorazine was helping to quiet the voices. A psychologist who had begun working with the inmate

regarding the inmate’s auditory hallucinations saw

him 3 days after the expert’s interview and said

the inmate told her the medication was helping

him sleep. 

In short, the court’s summary of testimony by the

plaintiffs’ expert and the prison’s staff paints two

different pictures of the same inmate. The court

simply rejected the testimony from the prison staff

and accepted the diagnosis of the plaintiffs’

expert, which was based on an interview (lasting

no more than 75 minutes) and a review of the

inmate’s chart. 

This “dueling experts” process is likely to be followed in other cases and shows the importance

of very credible expert testimony in this type of

lawsuit. As noted earlier, psychiatric disorders are

often in the eye of the beholder. Two experts

examined the mental health issues at Wisconsin’s

supermax facility and reached virtually opposite

conclusions. The judge found the plaintiffs’ expert

more convincing and adopted his opinions, which

in turn determined the judge’s final decision.d

A Case Study in ECU Mental Health Litigation (continued)

a Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001).

b John W. Stoner, Ph.D., Analysis of Mental Health Services and Treatment of Mentally Ill Inmates at Supermax Correctional

Institution (SMCI), Boscobel, Wisconsin (unpublished document submitted in litigation), p. 36.

c Jones’El, 164 F. Supp. 2d at 1109.

d A similar battle of experts was played out in Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz. 2002), but the issues focused on

the mental status of just one inmate. In Comer, the judge was convinced by testimony that the inmate was not mentally ill,

rejecting the opinions of the same expert whose testimony convinced the Jones’El judge to find in favor of the plaintiffs.

credit the testimony of one of two conflicting

expert witnesses. Which one the judge chooses

determines the result of the case. As the Jones’El

case study shows, even occasional failures to

comply with policy may be taken as indicative of

chronic, systemic failures. Diagnoses and assessments of inmates by facility treatment staff, based

on months or years of work with a patient, are

likely to be contradicted by an expert who, based

on a short interview and a review of patient

records, may characterize inmates as suffering

from SHU syndrome caused by conditions of

confinement. 

Trying to determine very complicated, technical

issues such as the mental health condition of large

numbers of inmates and the causes of such conditions through “dueling experts” in the courtroom

is a risky, uncertain business. It is not science. It
is not peer review or sophisticated quality assurance by a group of disinterested mental health

professionals. 

When it comes to ECU mental health issues, a

corrections department may be in the strongest

legal position if it incorporates some form of

ongoing quality assurance reviews into its standard operating procedures. Such procedures

become even more credible if they draw on professionals from outside the

department. Quality assurance

reviews can serve two purposes: (1) alerting the department

to problems as they develop, so

deficiencies can be corrected;

and (2) providing a credible,

nonadversarial-based source of

information about the operation

of the ECU.

Transferring Inmates for

Mental Health Treatment 

Simply transferring a prison

inmate to a mental health treatment facility triggers due

process protections under a

1980 Supreme Court decision.43

In Vitek v. Jones, which concerned the transfer of a prisoner from a Nebraska

state prison to a mental hospital, the Court said

that as part of such a transfer decision, the inmate

was entitled to a hearing that included more procedural protections than would be required in a

disciplinary hearing. Notably, the inmate had a

right to “qualified and independent assistance”

(but not necessarily a lawyer) and the right to

cross-examine witnesses. The model the Court

adopted for the transfer hearing is similar to that

required for a parole revocation. The Court did

not require a hearing in emergency situations or

when a transfer is simply for a clinical evaluation.

Several factors were of significance to the Court

in Vitek. The Court considered that the transfer

under review was to an agency and institution

outside the jurisdiction of the state department of

corrections, that such a transfer imposed a stigma

on the inmate, and that the transfer exposed the

inmate to a mandatory program of behavior modification. 

The Vitek decision left several

substantial questions unanswered. Unfortunately, relatively little litigation has come

forth in the aftermath of Vitek

to answer these questions.44

The most obvious question is

whether Vitek applies when the

transfer is not to a mental hospital run by the state’s mental

health agency but to a mental

health treatment unit located in

another institution run by the

corrections department. What

if the transfer is simply to a

mental health unit in the same

prison? In The Mentally Disordered Inmate and

the Law, Cohen argues that Vitek should apply

under such circumstances but recognizes that, in

practice, it frequently is not observed.45 Among

other questions Cohen notes are what criteria

should be used in deciding to transfer an inmate

for mental health treatment and what the burden

of proof should be in the transfer hearing.

23Mental Health

When it comes to

ECU mental health

issues, a corrections

department may be

in the strongest

legal position if it

incorporates some

form of ongoing

quality assurance

reviews into its

standard operating

procedures.

43 Vitek v. Jones, 445 U.S. 480 (1980). 

44 For a lengthier discussion of Vitek and inmate mental health issues generally, see Cohen, The Mentally Disordered

Inmate and the Law.

45 Ibid., p. 17-10
The implications and application of Vitek are complex, and

a detailed discussion is beyond

the scope of this monograph.

Suffice it to say that corrections agencies operating ECUs

should seek legal advice on the

meaning of Vitek for mental

health-based transfers. 

Involuntary Medication 

The involuntary medication of

inmates whose serious mental

illness makes them a threat to

themselves and others raises a

different set of issues. Unless an ECU can very

quickly transfer an inmate to a mental health

treatment facility, it needs to have procedures in

place that address these issues. Even if transfers

are the primary means of dealing with serious

mental illness, the ECU still may need to medicate an inmate if an emergency arises while a

transfer request is in process.

Inmates have a constitutionally protected right to

refuse treatment, but that right can be overcome

when, because of a mental disorder, an inmate

poses a danger to himself or others. The treatment

decision must be made by a medical professional

and must be in the inmate’s best interest medically; except in emergency situations (i.e., the

inmate poses an imminent threat), involuntary

treatment can only be administered after a

hearing, somewhat resembling a disciplinary

hearing.46

Medication can never be given involuntarily for

punishment. Absent the circumstances discussed

in the previous paragraph, medication cannot be

given involuntarily simply to control behavior. 

Summary 

The prison’s constitutional

obligation (under the Eighth

Amendment) to provide medical care—i.e., not to be deliberately indifferent to the serious

medical needs of inmates—

underlies the unique mental

health-related issues confronting ECUs. At the heart of

these issues is a basic dilemma:

the level of security and control

required to manage the behaviors that bring inmates to the

ECU may be harmful to the mental condition of

some inmates and, therefore, in violation of their

constitutional rights.

Debate continues about the nature of “SHU syndrome” and the extent to which conditions of isolation in the ECU may contribute to deterioration

of inmates’ mental health. However, there appears

to be general agreement that ECUs are, to some

extent, hazardous to the mental health of inmates

with certain types of mental conditions. Some of

these inmates should not be placed in an ECU at

all, and others may require very careful monitoring in the ECU and may have to be removed from

the ECU should their mental condition deteriorate. This concern suggests several preventive

steps:

■ Screening criteria. Develop criteria to screen

out some inmates from admission to the ECU

altogether. The limited current case law suggests that such criteria should be somewhat

similar to those in Madrid.

■ Screening process. Develop a process for

effectively applying these screening criteria.

24Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

46 Washington v. Harper, 494 U.S. 210 (1990).

Inmates have a 

constitutionally 

protected right to

refuse treatment,

but that right can

be overcome when,

because of a mental

disorder, an inmate

poses a danger to

himself or others.
Wisconsin corrections officials had developed

a screening tool, but the court was very critical of how the tool was applied. Should an

agency attempt to rely entirely on a standardized screening instrument? Or should it combine standardized screening with professional

examination, at one or more levels, of each

inmate considered for transfer to the ECU,

together with a final examination at admission? The best approach has yet to be defined. 

■ Monitoring. Implement a process for constantly monitoring the mental status of

ECU inmates and criteria for determining

when transfer out of the unit is warranted.

Wisconsin attempted to do this, but the court

characterized its efforts as “little more than

band-aids to the potentially detrimental conditions to which defendants are subjecting

mentally ill inmates.”47

■ Removal. Implement a process for transferring inmates out of the ECU if they meet the

monitoring system’s criteria for removal. This

requires, among other things, a place to send

such inmates. Agencies should seek legal

advice on whether a Vitek hearing must

accompany such transfer decisions.

■ Quality assurance. Consider developing a

quality assurance system or audit process

as a strategy for addressing legal challenges

to screening and monitoring procedures.

Wisconsin’s litigation experience suggests the

wisdom of this approach. A reviewing court

may find such efforts more credible if they

involve persons from outside the corrections

department.

■ Mental health care. Provide ongoing diagnosis and treatment for mental health conditions. This is the “standard” level of service

expected in any prison, and clearly a requirement in the ECU.

■ Staffing. Maintain staffing levels in accordance with the services to be provided.

Operating an ECU mental health program

short-handed is an invitation to litigation and

court intervention.

■ Medication. Be aware of legal constraints

concerning involuntary medication, and have

procedures in place for medicating inmates

whose serious mental illness presents a threat

to themselves and others. 

25Mental Health

47 Jones’El, 164 F. Supp. 2d at 1122. 
27Medical Services

3

Medical Services

Providing medical services to ECU inmates

does not involve issues comparable to the

unique mental health-related concerns discussed in chapter 2. However, operational and

legal problems certainly come up. The extreme

security requirements of the ECU can make delivery of medical services cumbersome and may

lead to delays in providing care. Moreover, some

ECU inmates are likely to demand medical attention because, if nothing else, sick call gives them

someone to talk to. Some inmates in long-term

segregation are likely to be very litigious, and

they may include medical care in their

complaints. 

This chapter discusses the challenges of delivering medical services in the ECU environment,

with emphasis on aspects of medical care likely

to be challenged in inmate lawsuits. The context

for the discussion is the traditional “deliberate

indifference to serious medical needs” test,

reviewed at the beginning of chapter 2. 

CHAPTER
Staffing 

This consideration is an obvious one. Because delivering

medical services is more cumbersome in ECUs than in units

with less stringent security, it

simply may take more people

to provide a comparable level

of service. Thus, the number of

qualified medical personnel in

the ECU is a potentially serious issue.

Confidentiality

Issues 

By delivering medical services at the cell, ECUs

can reduce costs and security concerns associated

with moving inmates to see medical providers. As

Riveland notes, most ECUs provide triage medical services either at the cell front or in exam

rooms within the unit; additional services might

be provided through telemedicine (using telecommunications technology).48 The more services the

ECU provides at the cell front or within the living

unit, the greater the importance of ensuring not

only that proper equipment and necessary medical

records are available but also that adequate precautions exist to protect the privacy of inmate

patients. Although courts disagree about the existence of a constitutionally based right to privacy

that protects inmate medical records and information, the trend indicates that such a right exists.49

Concerns about the confidentiality of medical information

arise as services are delivered

at the cell front. The Doe case,

cited in footnote 49, indicates

how a right to privacy could be

violated. An HIV-positive

inmate alleged that medical

staff told escort staff that the

inmate was HIV-positive; that

discussions in the doctor’s

office took place with the

office door open, so officers

and inmates could hear what

was said; and that nurses

administering medications spoke loudly enough

that others could hear what medication the inmate

was getting and infer that he was HIV-positive.

The court held that the allegations in Doe were

sufficient to state a claim but that further proceedings were necessary to determine whether the

institution could defend any of the practices in

question (assuming that the allegations about

them were proven) by showing they were justified by a legitimate penological interest.50 For

instance, did security concerns justify conducting

medical interviews between doctor and patient in

rooms with the doors open?

Situations similar to those alleged in Doe could

easily arise in an ECU unit. A medical provider

conducting sick call or other interviews at the cell

front might have to speak so loudly that custody

staff or other inmates could hear the conversation.

28Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

A three-step 

analysis can help

institutions address

confidentiality

issues that arise 

in interviewing,

diagnosing, and

treating ECU 

inmate patients.

48 Riveland, Supermax Prisons: Overview and General Considerations, p. 11.

49 Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994), holds that no right to privacy exists regarding disclosure of an inmate’s

HIV status. However, see Doe v. Delie, 257 F.3d 309 (3d Cir. 2001), which finds a right to privacy subject to limitation

based on conflicting legitimate penological interests and reviews court decisions on the question; and Powell v. Schriver,

175 F.3d 107 (2d Cir. 1999). 

50 The court applied the test for evaluating conflicts between inmate rights and competing institutional interests that

comes from Turner v. Safely, 482 U.S. 78 (1987). The test is commonly used in a variety of situations and is generally

not difficult for institution officials to meet. See chapter 8 for details of the Turner test. 
The doors of the ECU’s medical exam room

might be left open because of security concerns,

allowing persons outside the room to hear what

would otherwise be confidential discussions. 

A three-step analysis can help institutions address

confidentiality issues that arise in interviewing,

diagnosing, and treating ECU inmate patients:

(1) with the assistance of counsel, determine

whether inmates have a protected legal right with regard to

traditionally confidential medical information; (2) if they do,

then determine ways in which

that right may be breached

in the actual delivery of medical services to ECU inmates;

and (3) decide whether such

breaches are justified by legitimate penological interests. 

Service Delays 

Only limited medical diagnosis and treatment can be performed at the cell front or in

the living unit. Inmates often have to be moved

either to a clinic in the prison or to an offsite

medical provider. These moves require two or

three staff to escort the shackled inmate to the

medical provider. Sometimes escorts can be

scheduled in advance, but situations requiring

escorts may arise with little or no notice. 

Although prisons have some leeway in scheduling

medical care, delays can become the subject of a

“deliberate indifference to serious medical need”

claim. The key question in such cases is what

effects the delay had on the inmate. If a condition

gets worse or the inmate is in prolonged pain

because of the delay, the institution is more vulnerable to liability. 

Delays based on a desire to save money can be

questionable.51 Funding shortages can mean

staffing shortages, which in turn can lead to

chronic delays in providing escorts for medical

visits. Custody staffing needs to be sufficient to

handle routine, scheduled visits as well as emergencies. Staff shortages would

not justify neglecting the prison’s duty to provide medical

care, when those shortages

result in adverse effects on

inmates’ medical condition. 

Role of the

Custody Officer 

ECUs should not overlook the

custody officer’s role in the

unit’s system for delivering

medical care. Access to the

medical system often begins

when the inmate gives a

request (a “kite”) to the officer.

Inmates commonly claim, correctly or not, that

officers intentionally lose or delay kites as a

means of harassment or that officers read medical

kites and breach confidentiality (see confidentiality discussion earlier in this chapter). Allowing

inmates to drop medical kites into a locked box

where they will be collected by medical staff can

eliminate most arguments over confidentiality and

“lost” kites.

ECU medical staff can take further steps to

reduce concerns that custody officers are impeding access to medical care. Medical staff can

make and document routine rounds within the

29Medical Services

51 Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va. 2000). 

Staff shortages

would not justify

neglecting the

prison’s duty to 

provide medical

care, when those

shortages result in

adverse effects on

inmates’ medical

condition. 
living unit, check with inmates who have known

medical problems, and give other inmates opportunities to discuss medical concerns.

Custody officers can provide valuable feedback to

medical and mental health providers regarding the

condition of inmates. By including custody officers in periodic medical/mental health staff

reviews of inmate/patient progress, health-care

providers can gain valuable information they

might not otherwise have. Such communication

with custody staff may be an example of how

sharing some otherwise confidential information

about an inmate’s medical or mental health

condition with nonmedical staff may be justified

by a legitimate penological interest. 

Health Insurance Portability

and Accountability Act

(HIPAA) 

The provisions of HIPAA have resulted in three

sets of regulations from the U.S. Department of

Health and Human Services. The first set52 deals

with transactions, code sets, and identifiers, i.e.,

standardized means of identifying such things as

diagnostic information and health-care providers.

The second set53 covers privacy of medical information. The third set54 deals with security of protected health-care information. The second set

of regulations, relating to privacy, promises to be

the most problematic for ECUs.

The critical threshold question with the HIPAA

privacy regulations is whether they even apply

to corrections agencies. Because this question

concerns the entire agency, not just a single institution or unit within the agency, it is outside the

scope of this monograph. Suffice it to say that the

rules apply to a health-care provider (and other

types of health organizations) engaging in the

electronic transmission of certain types of “transaction” information.55 Note that two requirements

must be met: the “health care provider” criteria

and engaging in the electronic transmission of

transaction information. “Transactions” relate

primarily to financial matters, such as payment

and remittance. 

Permission To Share Medical Information 

If a corrections agency and an ECU within it are

“covered entities,” the HIPAA privacy regulations

impose several requirements. The most significant

pertain to circumstances under which “protected

health-care information” (which is not limited to

electronically transmitted information) can be

shared. The general rule is that, except for limited

purposes, such information cannot be shared

without the patient’s specific permission. 

A major exception to the disclosure permission

rule exempts corrections agencies from the rule

when they certify that disclosure is necessary for

providing health care to the inmate, for ensuring

the health and safety of other inmates and staff,

and for other similar reasons.56 This general

exception also applies to covered entities that provide medical care to inmates but are not part of

the corrections agency or institution, such as outside hospitals. 

Because a hospital outside the prison system

focuses on HIPAA requirements for the general

30Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

52 45 C.F.R. § 162.1000.

53 Id. Parts 160 and 164.

54 Id. Parts 160, 162, 164.

55 Id. § 160.103. 

56 Id. § 164.512(k)(5).
public, it may overlook the disclosure permission exception

for corrections facilities. Thus,

prisons should clarify HIPAA

requirements with outside

providers. Otherwise, if the

prison calls the hospital to

check on the status of “Inmate

Jones,” the hospital may

respond that “we cannot confirm the presence of an ‘Inmate

Jones’ in our hospital.”

Access to Medical Records 

The HIPAA privacy regulations contain other provisions that are not subject to such a broad exception. For example, the subject of a medical record

has a right under the regulations to examine the

record and request corrections. (This right does

not apply to psychotherapy notes.57) Such requests

can be denied if disclosure of the record would

jeopardize “the health, safety, security, custody or

rehabilitation of the individual or of other

inmates, or the safety of any officer....”58 Prisons

probably must make these denials on a case-bycase basis, as blanket denial of all requests would

be inconsistent with the intent of the regulation. 

Under the HIPAA regulations, an inmate whose

request for access to records is denied must have

the opportunity to have that decision reviewed.

However, no such right exists for inmates if

“obtaining [a] copy would jeopardize the health,

safety, security, custody, or rehabilitation of the

inmate or other inmates, or the safety of any officer, employee, or other person at the correctional

institution or responsible for the transporting of

the inmate.”59

Implications for ECUs 

In general, the HIPAA privacy

regulations are complicated

and have been the source of

substantial uncertainty and

confusion. ECU inmates may

or may not discover the regulations and, for example, begin

to demand access to their medical records. Regardless, corrections agencies need to

examine the HIPAA regulations; determine the extent to

which they apply to agency operations in general

and the ECU in particular; and, if the regulations

apply, determine what policies and procedures are

needed to ensure compliance.

Summary 

Providing medical care to ECU inmates involves

operational challenges and legal concerns,

although the constitutional issues are not as great

as those associated with mental health. Staffing

requirements for delivering medical services are

likely to be greater in the ECU than in other units.

Confidentiality of medical information is an issue

in the ECU, especially when services are delivered at the cell front. ECUs need enough custody

officers to avoid delays when inmates must be

escorted out of the unit to receive medical care.

ECUs should also be aware of the custody officer’s role in the medical care delivery system and

take steps to avoid inmate complaints related to

that role. Finally, corrections agencies should

determine how privacy regulations under HIPAA

may affect their ECU operations.

31Medical Services

In general, the

HIPAA privacy 

regulations are

complicated and

have been the

source of substantial uncertainty 

and confusion.

57 Id. § 164.524(a)(1)(ii).

58 Id. § 164.524(a)(2)(ii).

59 Id.
33Other Conditions of Confinement

4

Other Conditions 

of Confinement 

Constitutional requirements regarding conditions of confinement apply, of course,

to living conditions in ECUs. As noted

earlier, litigation about conditions of confinement

in long-term segregation units is nothing new. 

This chapter first discusses how the courts analyze conditions of confinement. It then looks at

operational and legal aspects of specific conditions: personal safety, food, clothing, shelter, sanitation, and exercise. (Mental and medical health

care are discussed separately, in chapters 2 and 3.)

How Courts Analyze

Conditions of Confinement 

Courts analyze conditions of confinement under

the cruel and unusual punishment clause of the

Eighth Amendment. In this context, the Eighth

Amendment has two prongs: (1) objective (the

adequacy of conditions that affect inmates’ basic

human needs) and (2) subjective (the defendant

administrators’ state of mind—are they “deliberately indifferent” to problems regarding inmates’

basic human needs?).60 To find an Eighth

CHAPTER

60 Wilson, 501 U.S. 294.
Amendment violation, the court must decide

against the defendant on both prongs.

Objective Analysis 

How serious must a condition affecting a basic

human need be before it runs afoul of the objective prong of the Eighth Amendment? In reviewing a particular condition, a court will ask

whether the condition is actually harming inmates

or presents a substantial risk of serious harm.61

The basic human needs issues most commonly

subjected to judicial scrutiny relate to the

following:

■ Medical and mental health care (discussed in

chapters 2 and 3).

■ Personal safety.

■ Food (the general adequacy of the diet and

whether food is served in a way that does not

pose a risk to inmate health).

■ Clothing.

■ Shelter (the overall living environment,

including heating, cooling, ventilation, lighting, noise levels, and other factors). 

■ Sanitation.

■ Exercise, including outdoor exercise.

Subjective Analysis 

In deciding whether officials have been deliberately indifferent to a particular problem or set of

problems, a court must determine whether the

officials knew of the problem and the risk it presented and disregarded that risk by failing to take

reasonable measures to abate it.62 It is no longer

sufficient for plaintiffs to show that officials

“should have known” about a risk—actual knowledge is required. Actual knowledge can be

inferred from circumstantial evidence.

The actual knowledge inquiry is probably less

important in a class action case involving conditions than in a lawsuit brought by an individual

inmate complaining of a particular incident or situation. Prison administrators are far more likely

to be aware of general problems targeted in a

class action than the problems of an individual

inmate.

No “Totality of Conditions” Test 

In the past, courts reviewed the “totality” of conditions when considering cases that claimed

Eighth Amendment violations. However, the totality approach was rejected in 1991 by the Supreme

Court in Wilson v. Seiter,63 which concerned conditions in an Ohio prison. Although earlier

Supreme Court case law could be read as approving a totality approach, Wilson flatly rejected this

approach, saying instead that conditions relating

to basic human needs (the list above) should generally be analyzed independently of one another. 

Wilson does permit conditions to be analyzed

together if together they relate to a single basic

human need. Thus, inadequate clothing and poor

heating might properly be considered together, as

could poor sanitation practices and the preparation of food.

34Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

61 Helling at 25.

62 Farmer, 511 U.S. 825.

63 Wilson, 501 U.S. 294.
Basic Human

Needs 

Personal Safety 

Personal safety normally should

not be a major concern in the

ECU, where inmates are locked

down almost constantly and

kept under very close supervision at other times. However,

the “by definition” high risk

attributed to inmates in the

ECU means that when inmateon-inmate assaults take place,

litigation and perhaps liability may not be far

behind.

The courts speak. In one case, an inmate in a

high-security unit got out of his cell and assaulted

other inmates who were watching television in the

unit’s dayroom. Notably, the court deferred to the

prison officials’ decision to place the assailant in

the unit as evidence that he presented an excessive risk to other inmates. This satisfied the first

(objective) prong of the Eighth Amendment; in

other words, placement in the high-security unit

defined the inmate as dangerous. As to the subjective (deliberate indifference) prong, the court

found that a corrections officer, by actions that

allowed the inmate to get out of the cell, showed

reckless disregard for the risk posed by the

inmate. Result: judgment for the plaintiffs, the

injured inmates.64

A somewhat similar case had a different result. A

dangerous inmate in a special management unit

assaulted another inmate in the unit. Evidence at

trial showed that a corrections sergeant failed to

follow various security policies in the unit and

knew that the assailant was dangerous and did not

like the victim. The corrections department subsequently

fired the sergeant for gross

negligence. The district court

was extremely critical of the

sergeant’s actions. However,

on appeal, a $40,000 judgment

for the injured inmate was

reversed because the court

held that the sergeant did not

have actual knowledge that the

assailant posed a serious risk

of harm to the victim. A general knowledge of the assailant’s

dangerous propensities was not enough.65

Although these conflicting decisions from appellate courts deliver an uncertain message, some

conclusions seem warranted:

■ The courts may regard inmates in ECUs as

presumptively dangerous.

■ Inmate-on-inmate assaults in ECUs, where

inmates have virtually no direct contact with

one another, strongly indicate that a breach of

procedure occurred and will be the springboard for victims to argue that staff were

deliberately indifferent to the risk presented

by inmates. (Note that this argument could be

made if members of rival gangs known to be

at odds with one another were allowed contact in the ECU.) 

Double-celling. Double-celling inmates in an

ECU because of crowding or other factors creates

potential problems. If an inmate is assaulted by a

cellmate, the victim could argue that (1) only

high-risk inmates are placed in the unit and (2) if

these inmates are so dangerous that they cannot

35Other Conditions of Confinement

Double-celling in an

ECU compromises

the security that

otherwise defines

the unit’s operation

and may be difficult

to justify if it leads

to an inmate

assault.

64 Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997). 

65 Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).
exercise together, must be in restraints outside the

cell, and must generally be kept separate from

one another, any double-celling creates a serious

risk. Various rebuttals are possible, notably that

officials’ careful screening indicated that the two

specific inmates involved in the case were compatible and could be double celled. The inquiry

might then focus on how carefully cell assignments were actually made or on whether staff

failed to monitor the two cellmates well enough

to notice they were not getting along. 

Double-celling in an ECU compromises the security that otherwise defines the unit’s operation and

may be difficult to justify if it leads to an inmate

assault. If double-celling is routine in the ECU,

prisons must carefully select cell partners and

monitor how well they get along. 

Food and Clothing 

Food and clothing should not present major problems for ECUs. In general, units must provide a

nutritionally adequate diet, prepared and served

in a manner that does not present serious health

risks. Clothing should be generally adequate to

maintain the inmate’s privacy and appropriate to

temperature conditions in the unit.

Nutraloaf. One food-related issue that may arise

more in the ECU than in the general population

relates to the use of “nutraloaf,” a food loaf prepared from a variety of nutritionally balanced

ingredients and served without utensils. Nutraloaf

is unappetizing and unattractive, but courts have

generally upheld its use—at least in response to

food-related misbehavior, such as throwing food

at officers or refusing to return trays or utensils.

In LeMaire v. Maass,66 an exceptionally notorious

and dangerous inmate housed for years in the

segregation unit of the Oregon State Penitentiary

sued over several issues, including nutraloaf. The

court of appeals noted that the loaf actually provided an excess of nutritional requirements

(LeMaire had gained weight on it), precluding a

finding that feeding it to inmates violated the

objective prong of the Eighth Amendment.

In LeMaire, the court did issue an injunction

directing officials to follow their own rules that

said nutraloaf could be used only as a response to

inmate abuse of food and could be fed to an

inmate for no more than 7 days at a time.

(Because the court found that nutraloaf did not

deprive the inmate of an adequate diet, the legal

basis for the injunction was not clear.) 

A nutraloaf that does not provide adequate nutrition could raise a possible Eighth Amendment

issue, perhaps depending in part on how long an

inmate had to eat it. The injunction in the Oregon

case suggests that a court may have concerns if

the loaf is served for punitive reasons unrelated

to abuse of food. A nutraloaf might raise First

Amendment (freedom of religion) issues if, for

example, it contains pork and is served to inmates

who do not eat pork because of their religious

beliefs. 

Warm clothing. In Davidson v. Scully, an inmate

plaintiff housed in an upstate New York ECU

alleged that inmates were issued only summerweight clothing and shared lightweight jackets. In

granting a preliminary injunction requiring prison

officials to provide warmer clothing, the judge

found that by providing only light clothing, officials were effectively denying inmates outdoor

exercise during the winter.67

36Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

66 LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993). 

67 Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y. 1996).
Shelter 

Shelter issues may arise in the ECU, depending

largely on the age of the facility. Shelter encompasses the overall physical environment of the

unit, including lighting, heating, cooling, ventilation, noise, fire safety, and access to hygiene

materials (e.g., toilet paper) and hot and cold running water. Examples of shelter-related litigation

are highlighted below.

Lighting. The usual claim has to do with inadequate lighting or natural light in the cell. A different issue can arise in ECUs that leave some light

on in the cell all night to facilitate security checks. Inmates

claim that the constant light

disturbs their sleep.

Lighting was an issue in the

Wisconsin case (Jones’El v.

Berge) discussed in the chapter on mental health issues.

Inmates could turn their cell

lights from high to low, but not

off. Even at low, the light was

bright enough to read by. Testimony convinced the court that

the constant lighting was particularly disorienting to inmates with serious

mental illness.68 In the settlement that followed

the court’s preliminary injunction, the defendants

agreed to lower the nighttime lighting levels in

the cells.69

The obvious lesson from Jones’El is that officials

should examine (1) whether constant nighttime

lighting is needed in the ECU and (2) how intense

the lighting must be to serve its purpose. Are

sleeping inmates less disturbed by nightlights or

by a flashlight occasionally shining on them as

officers make rounds? 

Severe deprivation. In another case, concerning

the conditions of confinement at Oklahoma State

Penitentiary, an ECU inmate alleged that he was

stripped of his clothing and placed in a cell without a mattress, blankets, or bedding and with minimal toilet paper, no hot water, and inadequate

ventilation. Nighttime temperatures in the cell

dropped to the mid-50s. The inmate alleged that

these conditions lasted perhaps weeks or months.

The allegations were serious enough to warrant a

full trial.70

Multiple issues. In 1996, an

inmate at the Cook County Jail

in Illinois alleged chronic pest

infestations in his living unit—

claiming that roaches were

everywhere and that roaches

and mice frequently ran across

him at night—and stated a

claim under the Eighth

Amendment.71 This case also

included allegations that lighting in the inmate’s living unit

was so weak that reading hurt

his eyes; the court said that the lighting problem

was sufficient to preclude dismissal of the issue

and warrant further factual inquiry into the

allegations. 

Sanitation

Often closely related to shelter and/or food, sanitation issues are fairly straightforward. Conditions

that threaten the health of inmates can be the basis

for a finding of cruel and unusual punishment. 

37Other Conditions of Confinement

Conditions that

threaten the health

of inmates can be

the basis for a 

finding of cruel 

and unusual 

punishment. 

68 Jones’El, 164 F. Supp. 2d at 1118.

69 Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL 21462603 (7th Cir. 2003).

70 Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996).

71 Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996).
A dilemma may arise for prison administrators in dealing

with inmates who “foul their

own nest” by smearing feces

on walls, throwing urine, stopping up toilets to flood cell

blocks, etc., and then refuse to

clean the mess they have created. Officials may feel that

cleaning up behind the inmates

in such cases means giving up

power to the inmates. If the dispute that led to the

disruptive behavior is not resolved, the inmates

may repeat the behavior as soon as the first mess

has been cleaned up. That said, the thought of

leaving an inmate in a feces-smeared cell for a

prolonged time, even if the inmate was responsible for the mess, is troublesome. The inmate’s

mental status would certainly be relevant in considering how long such a standoff could be

acceptable. 

In general, courts will consider exposure to

human waste to be a major deprivation of a basic

human need and will not tolerate such exposure

for long.72 Offering cleaning supplies to an inmate

who has soiled his own cell may defeat an Eighth

Amendment claim.73

When the unsanitary condition threatens the

health of inmates not directly involved in creation

of the condition, clearly some sort of early remedial intervention is appropriate, at least on behalf of the noninvolved inmates. When the risk

extends only to the inmate(s) who created the

problem, greater leeway may be permitted. In the

LeMaire case discussed earlier in this chapter (see

“Food and Clothing”), the inmate who protested

the use of nutraloaf in his diet

also protested officials’ denying him out-of-cell exercise for

years. The court said that officials, who denied the inmate

exercise on the basis of his

dangerous behavior, were not

deliberately indifferent to his

exercise needs and that the

inmate held the key to his cell

through his own behavior. 

Prudence suggests that at some point, regardless

of inmate behavior, officials should intervene to

correct sanitation hazards, even though inmates

may recreate the problem almost immediately.

Close monitoring of the situation, ongoing risk

assessments with input from medical and mental

health experts, attempts to limit the inmate’s ability to create the problem (see earlier discussion of

nutraloaf), and periodic cleanup will help officials

show that they were not deliberately indifferent to

the problem, should it arise in litigation.

Exercise

Inmate exercise presents unique concerns for

ECUs. In the general prison environment, where

inmates are out of their cells for substantial periods during the day and typically have frequent

access to exercise areas (if not to the latest equipment), concerns about exercise virtually never

reach constitutional significance (there is no

right to free weights). By contrast, in a unit

where inmates have very limited opportunities to

exercise outside the cells, the lack of exercise—

and sometimes the lack of outdoor exercise

specifically—can become of constitutional

significance. 

38Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Courts have 

discussed 

exercise-related

issues for years, 

but the case law 

is unclear.

72 DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); in Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989), the

court found that 3 days in a cell with feces smeared on walls was not within “civilized standards, humanity, and

decency”). 

73 McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.) 2001); Chambers v. Riveland, 189 F.3d 472, 1999 WL 595366 (9th

Cir. 1999, unpublished). 
Courts have discussed exercise-related issues for

years, but the case law is unclear. Two 1997 decisions from appellate courts—Thomas v. Ramos

and May v. Baldwin—indicate the vague parameters of the right to exercise:

Lack of exercise may rise to a constitutional violation in certain limited

circumstances “where movement is

denied and muscles are allowed to

atrophy [and] the health of the individual is threatened.”74

Although exercise is “one of the basic

human necessities protected by the

Eighth Amendment” a temporary

denial of outdoor exercise with no

medical effects is not a substantial deprivation . . . a long-term deprivation of

exercise is a denial of a basic human

need in violation of the Eighth

Amendment . . . the deprivation of outdoor exercise for a “period of years”

contravenes the Eighth Amendment.75

These decisions suggest that a lack-of-exercise

claim depends on the facts and requires the

inmate to show some injury or substantial threat

of harm from what probably would have to be an

extended denial of exercise. Other courts have not

been so demanding. For example, in the 1996

Davidson v. Scully case (discussed in the section

on clothing), the court’s preliminary injunction

required officials to provide inmates with heavy

coats lest they be denied the right of outdoor

exercise during the upstate New York winter;

however, the case does not address how long the

inmates were likely to go without outdoor

exercise if they lacked heavy coats, the effects of

not being able to exercise outdoors, or whether

the inmates could exercise indoors.

Earlier decisions from the Seventh Circuit indicate that short-term denial of exercise does not

constitute a violation of the Eighth Amendment.

In Harris v. Fleming, the court found no violation

because an inmate who was denied yard time for

4 weeks could exercise in his cell for that brief

period.76 In Caldwell v. Miller, the court found no

violation where an inmate was confined to his

cell 24 hours a day and denied all outside and

indoor exercise privileges for a month, followed

by a 6-month confinement for 23 hours a day

with 1 hour of daily indoor exercise.77

In extreme circumstances, courts have approved

even relatively long deprivations of exercise. In

LeMaire, the inmate had been denied exercise

outside his cell (and hence outdoors) for most of

a 5-year period. Prison officials could show that

the inmate abused outdoor exercise opportunities

when they were granted and that he was a very

serious security/assault risk any time he was out

of his cell. (For example, he once engaged in an

armed attack on two correctional officers as he

was leaving the outdoor exercise area.) The court

found that, under these circumstances, the officials were not deliberately indifferent to the

inmate’s exercise needs. Although the inmate

arguably won the objective prong of his Eighth

Amendment claim, he lost on the subjective “state

of mind” prong and hence lost the overall claim.

In LeMaire, it was important to the Ninth Circuit

that the inmate controlled his own destiny. If he

demonstrated a willingness to follow the prison’s

39Other Conditions of Confinement

74 Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997), internal citations omitted.

75 May v. Baldwin, 109 F.3d 557 (9th Cir. 1997), internal citations omitted.

76 Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988). 

77 Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986).
rules, he would regain access to exercise and

other privileges he had lost because of his violent

and threatening behavior.78

Whereas courts over the years have been reluctant

to find that in-cell exercise is sufficient, LeMaire

notes favorably that the inmate could exercise in

his cell, as do Harris and, more recently, Thomas.

However, these cases should not be interpreted to

mean that the courts generally approved denying

inmates regular out-of-cell exercise because they

can do situps and pushups in their cells.

The courts have hedged somewhat with regard to

the right to exercise and the specific right to exercise outdoors a certain number of hours per day

and days per week. Although denial of all out-ofcell exercise for days or weeks (or even years in

the most extreme circumstances) may be defensible, the presumption in designing and operating

ECUs should be that inmates will be allowed to

exercise outside their cells several hours per week

and that some exercise will take place outdoors. If

these privileges are suspended, documenting the

reasons may prove important. (As noted in footnote 78, officials in LeMaire thoroughly documented the inmate’s behavior and their response

over the years, and the documentation played an

important role in winning the case.)

Summary 

With regard to certain conditions of confinement

(personal safety, food and clothing, shelter, sanitation, and exercise), issues in ECUs differ from

issues in general population settings only as a

matter of degree. The basic legal test is the same:

do the conditions harm the inmate or present a

serious risk of substantial harm, and are officials

deliberately indifferent to that risk. The ECU’s

very strict environment may increase the risk of

harm to some inmates (especially the mentally ill)

or for some conditions (e.g., exercise).

Intensity and duration of exposure may make

defense of allegedly poor conditions more difficult in ECUs than in general prison settings. In

general settings, the effects of poor conditions in

cells may be mitigated if inmates are out of their

cells most of the day to participate in programs,

jobs, and other activities. The inmates may be

exposed to the poor conditions only a few hours

per day. But ECU inmates rarely leave their cells

and never leave the unit; if poor conditions exist,

the inmates’ exposure is constant. Whereas lack

of exercise is rarely an issue for inmates in the

general population, it is, to some extent, a fact of

life for ECU inmates. 

As noted in the Madrid case, conditions in modern ECUs, which remove so much of inmates’

opportunity for human contact, “may press the

outer bounds of what most humans can psychologically tolerate” and sometimes exceed those

bounds for some inmates.79 This observation, and

its implications for the conditions discussed in this

chapter, should be acknowledged by officials in

planning and operating ECUs.

40Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

78 A major caveat about LeMaire: Inmate LeMaire’s behavior showed him to be extremely dangerous, and corrections

officials carefully documented his behavior and their responses to it. The holdings in the case should not be read as

applying to all inmates in long-term segregation. 

79 Madrid, 889 F. Supp. at 1267.
41Use of Force

5

Use of Force

Because the ECU holds the most violent

inmates in a prison system, use of force

will be common. The high level of security in the ECU demands that officers have physical contact with inmates—conducting pat or strip

searches and applying restraints—virtually every

time the inmates leave their cells. In some jurisdictions, all escorts are done “hands on.”80

In addition, the volatile nature of the ECU population means that corrections staff will need to

perform cell extractions, address self-destructive

behavior, and deal with combative, resistive

inmates. Some inmates may try to instigate incidents just to relieve the tedium of their environment. All of these situations may require the use

of force, sometimes at high levels, usually involving specially trained response teams. Depending

on agency policy, officers may have access to

batons, chemical agents, tasers, stun guns, and

other weapons up to and including firearms.

This chapter examines use of force in the unique

context of the ECU. It discusses factors that may

contribute to use of excessive force, reviews legal

CHAPTER

80 Riveland, Supermax Prisons: Overview and General

Considerations, p. 15.
tests for evaluating force incidents, and suggests

ways of avoiding improper use of force.

Excessive Force: Some

Contributing Factors 

In the author’s opinion and experience, the ECU

environment can create pressures that push officers to use more force than is needed to manage

an immediate threat. Some inmates taunt officers

verbally and may actually

assault officers, spit on them,

or throw feces, urine, or other

substances on them. The frequency of officers’ necessary

hands-on contact with inmates,

the combative nature of at least

some inmates, and the offensive behavior to which officers

are subjected can create a climate for retaliatory use of excessive force.

Officers may feel that very swift, harsh use of

force demonstrates their power, underscores their

control of the unit, and deters any forceful reaction by inmates. 

Proper supervision can prevent abusive use of

force. Without a firm supervisory presence, use of

excessive force can become the accepted, “normal” way of doing business—the “culture” of the

facility or unit. This culture of excessive force at

California’s Pelican Bay facility—and attempts to

cover up the related practices—were important

elements of the Madrid case.81

Ironically, an institution’s formal disciplinary system may be another factor contributing to the use

of excessive force in the ECU. Available sanctions typically include loss of privileges, placement in segregation, or removal/denial of good

time credits. ECU inmates have few privileges to

lose and are already locked in the most secure

facility available (making segregation a largely

moot point). Many have little or no good time

credits to remove or are serving such long sentences that tinkering with a release date is of little

immediate importance. Thus, staff may see traditional disciplinary actions as not providing

an adequate response or an

effective deterrent to serious

misbehavior in the ECU. If

correctional officers perceive

the formal disciplinary system

to be ineffective, they may be

more inclined to take matters

into their own hands and feel

justified in doing so.

Use of Force: The Legal Test

and Its Application in Madrid

In Hudson v. McMillian, concerning correctional officers’ use of force at the Louisiana State

Penitentiary at Angola, the Supreme Court

defined the legal standard for evaluating use of

force in a corrections context: “whether force was

applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically

to cause harm.”82 The courts apply the same standard for ECUs as for any other corrections setting. Hudson requires the courts to consider five

factors:

42Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Proper supervision

can prevent abusive

use of force. 

81 See Madrid, 889 F. Supp. at 1159–2000 and 1247–1255. The court found that a “pattern of needless and officially

sanctioned brutality had invaded operations at Pelican Bay” (889 F. Supp. at 1255).

82 Hudson v. McMillian, 503 U.S. 1 (1992).
■ The need for the use of force.

■ The amount of force used, in relation to the

need.

■ The extent of any injuries.

■ Whether the threat was reasonable, as perceived by responsible corrections officials. 

■ Whether any efforts were made to temper the

severity of a forceful response.

Madrid provides an example of the kinds of force

conditions the courts will not tolerate under this

test. The court found that Pelican Bay ECU staff

were using abusive, unconstitutional levels of

force against inmates and that a code of silence

made it very difficult for a staff member to report

an improper use of force or for the agency to hold

officers accountable. Examples of excessive force

included staff assaults on inmates; frequent use of

“fetal restraints” (hog-tying), often for essentially

punitive purposes; and frequent use of lethal force

(i.e., firearms). Excessive force in cell extractions

was common. 

The Madrid opinion shows that fundamental

management problems lay beneath the abusive

uses of force at Pelican Bay. Policies were not

clear and consistent enough to provide meaningful guidance to staff. The absence of clear written

guidelines led to different interpretations and

statements of policy by midlevel supervisors.

Training at times was inconsistent with policies.

Pelican Bay also lacked active supervision and

review of force incidents. Written reports tended

to be very general and were routinely accepted.

The court found that officials would “turn a blind

eye” when reports suggested the need for more

followup.83 Some force incidents led to internal

affairs investigations, but the court found “that

while the Internal Affairs Division goes through

the necessary motions, it is invariably a counterfeit investigation pursued with one outcome in

mind: to avoid finding officer misconduct as often

as possible.”84 The court also criticized the lack of

supervision in the common use of lethal force

(firearms). The Madrid court eventually concluded that not only were officials deliberately indifferent to use-of-force problems, but there was “an

affirmative management strategy to permit the use

of excessive force for the purposes of punishment

and deterrence.”85

Avoiding Use of 

Excessive Force 

It is tempting to dismiss Madrid as an isolated

situation—“that wouldn’t happen here.” However,

the author’s experience has shown that the conditions present in many segregation units (inmate

behavioral disorders, limitation of inmates’ personal freedoms, and antagonistic relationships

between staff and inmates, etc.) are fertile ground

for such outcomes. Rather than saying “that

wouldn’t happen here,” perhaps the better approach is to assume that “it can easily happen

here, unless we take proactive steps to prevent it.”

The problems agencies experience in dealing with

high-risk inmates make it obvious that managing

these inmates requires comprehensive needs

assessment, thorough planning, and funding commensurate with staffing and training requirements. But the best planning and preparation are

43Use of Force

83 Madrid, 889 F. Supp. at 1187.

84 Id. at 1192.

85 Id. at 1187.
wasted without firm and consistent supervision of

operations. Correctional officers assigned to the

most dangerous group of inmates in a prison system are unlikely to treat them with kid gloves.

Even if a facility requires

training in subject control,

monitoring, and accountability,

the benefits of that training can

be lost if the “culture” of the

facility embraces force as a

tool for punishment. 

Once abuse of inmates and a

code of silence become part of

the ECU staff culture, they are

difficult to eradicate. Strong

supervision—beginning at the

first-level supervisor and

extending to the warden—is

required to prevent unconstitutional levels

of force in the ECU. The sidebar “Basic Requirements for Avoiding Use of Excessive Force”

summarizes important considerations for administrators and managers in developing an ECU operation that meets constitutional standards with

regard to use of force.

In considering use-of-force policies and practices,

officials should keep in mind that inmate plaintiffs may not even have to show extreme levels of

excessive force to win a class action suit. The

Eighth Amendment also requires prison officials

to protect inmates from violence at the hands of

other inmates. In a case that involved inmate-oninmate violence at a Wyoming State Penitentiary,

the plaintiffs won simply by showing that officials

(including the warden and the agency director)

consistently failed to review incidents to determine causes and consider corrective action. These

failures led the court to conclude that officials

were deliberately indifferent to safety risks, and

the court found an Eighth Amendment violation.86

Similar reasoning could be applied in litigation

about improper use of force.

Tools for Control,

Oversight, and

Documentation 

The “malicious and sadistic”

legal test that courts use in

evaluating force claims is not a

difficult one for institution officials to meet. It tends to give

the benefit of the doubt to officials. However, absent a relatively incontrovertible record of

what took place in a force incident, the trier of fact must

decide what actually happened on subjective

grounds. Who should be believed—the officers

(“only necessary force was used”) or the inmate

(“I hadn’t done anything, and they hit me and

kicked me coming back from my medical visit”)?

It is especially troubling for defendants to lose a

use-of-force case because a jury concludes that

officers were lying when in fact they were not.

The more objective evidence an institution can

produce to show what happened, the less the case

may turn on “he said–they said” evidentiary conflicts and the less likely a force claim will be lost

simply because a jury chose to believe the inmate

instead of the officers.

Two simple steps can produce objective evidence

for defending force claims: videotaping incidents

and conducting post-incident medical examinations. Both steps serve other important purposes

as well.

44Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

86 Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy. 2002).

Once abuse of

inmates and a 

code of silence

become part of 

the ECU staff 

culture, they are

difficult to 

eradicate.
Videotaping 

Because an ECU is such a controlled environment, most force incidents will develop slowly,

allowing for a controlled response. For example,

a cell extraction in the ECU is a much more

controllable event than a spontaneous riot in the

general population dining hall. The relatively controlled environment in the ECU should make it

possible to videotape most force incidents, providing a clear record of what took place. Videotaping can also deter the inmate who wants to

provoke a violent confrontation and the staff

member who tends to use excessive force when

the opportunity presents itself. 

In a cell extraction situation, a handheld videocamera can be used to record officers’ warnings

and the inmate’s response. In some types of force

incidents, however, it may not be possible to

bring a handheld camera to record what happens.

By equipping an ECU with general security cameras that operate constantly and tape common

areas, spontaneously developing force incidents

can be captured on tape. Such cameras may not

provide the detailed record that could be obtained

with a handheld camera, but they can at least

record some visual evidence of what took place. 

Videotapes of force incidents also provide administrators with a clear record of what happened,

facilitating evaluation for management purposes.

In addition, videotaping also makes it more difficult for officers to whitewash improper use of

force by falsifying reports and covering for one

another.

45

■ Clear, comprehensive policies governing the

Use of Force

use of force, including alternatives to use of

force, when force is appropriate, required

warnings, proper types of force, when special

weapons may be used, and required reports. 

■ Training for officers and supervisors about

what is expected of them with regard to use

of force. Training should include interpersonal

skills and verbal strategies for managing difficult inmates; without these elements, it may

be difficult to show “efforts to temper” use of

force, as required in Hudson. Training that is

limited to special weapons, chemicals, and

equipment sends a strong message to staff,

inmates, and the courts about how the agency

intends to manage difficult inmates. 

■ Reporting requirements. Written reports for

each use-of-force incident must be clear and

accurate. Reports that use boilerplate language or just state conclusions (“only necessary force was used”) do not describe what

happened and may imply that officers collaborated to “cover their tracks.”

■ Active, aggressive review of use-of-force

incidents. Reviews should involve all levels of

supervision, including the central office, and

should ensure that policies were followed, the

use of force was justified, the circumstances

necessitating force were beyond the staff’s

ability to control or avoid, and the level of

force was appropriate. The review should also

ensure that immediate remedial action is

taken if problems are noted. Feedback should

be provided to staff by conducting incident

debriefings, identifying areas for improvement, and providing training as needed.

Basic Requirements for Avoiding Use 

of Excessive Force
Post-Incident Medical Examinations 

Conducting a medical examination promptly after

a force incident provides another useful evaluative

tool for managers and the courts. The examination

should be conducted by someone who was not

directly involved in the incident and is not a member of the custody staff. Examination results can

provide reliable documentation as to the extent of

injuries sustained by inmates and staff. (If injuries

are minor or absent, courts tend to excuse other

problems with a use of force.) 

Summary 

Use-of-force issues are bound to arise in facilities

that house the most violent inmates in a prison

system. Reliably detecting improper use of force

and responding effectively when it occurs may be

the greatest legal and management challenges in

properly operating an ECU. If management lets

use of force get out of hand, the consequences—

patterns of abuse and a code of silence among

staff—are difficult to correct.

Proactive management steps are required to

ensure that ECUs avoid use of excessive force

and meet the legal test courts use in evaluating

force incidents. An institution should be able to

defend its uses of force if it lays a proper foundation through policies, training, supervision, and

documentation. Staff involved in force incidents

must write accurate reports of what happened.

Videotapes and post-incident medical examinations are also useful. Thorough documentation

has both management and evidentiary uses. If

use of force is not properly controlled and a pattern of misuse develops—along with a code of

silence among staff about incidents of abuse—

management has failed. 

46Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
CHAPTER 47The 14th Amendment: Due Process and Placement

6

The 14th Amendment:

Due Process 

and Placement 

The due process clause of the 14th

Amendment presents four of the most

basic legal issues affecting operations of

ECUs:

■ Must some form of procedural due process

accompany the decision to place an inmate in

the ECU?

■ If so, what form of process is due? 

■ Must periodic status reviews be conducted to

validate an inmate’s continued retention in the

ECU? 

■ If so, what form should these reviews take?

This chapter reviews case law related to due

process requirements for ECUs and considers

both legal and policy implications associated with

due process procedures. The review indicates

judicial uncertainty about whether due process

applies to the initial placement decision but general agreement that some form of periodic review

is necessary, although the courts have provided

little guidance about what form the review should

take. Note that the discussion focuses on process,
i.e., what procedures must be followed in making

placement and retention decisions. Before turning

to the legal issues, however, the chapter addresses

some basic operational concerns. 

Operational Concerns 

Legal considerations aside, corrections managers

have strong interests in how decisions about

admission, review, and release are made. To the

extent that placement or release decisions rely on

inaccurate facts or poor judgment, inmates will be

incorrectly classified into or out of an ECU. Thus,

the process for making these decisions must be

grounded in reliable factual information as the

basis for sound predictive judgments. In his

monograph on supermax prisons, Riveland recommends that placement decisions be an “integral

part of the agency’s classification process” and

based on criteria that are “clearly articulated [and]

non-ambiguous.”87

Pressures will always exist to send troublesome

inmates to an ECU and keep them there. Unless

the keepers of the keys to both the front and back

doors of the ECU make their decisions carefully,

the unit can quickly fill to capacity, with very little turnover. When this happens, the unit becomes

less useful to the prison system, and pressures

build to create additional (expensive) ECU bed

space. Riveland again:

It would be prudent to have the final

authority for approving admission to,

retention in, and release from an extended control unit rest at the highest

levels of the organization. This would

preclude—or minimize—potential

abuse of the policy criteria for admission and release . . . .88

An ECU may bring with it a sort of Field of

Dreams prophecy: “If you build it, they will

come.” Unless officials design a careful screening

process, this prophecy is likely to come true as

the ECU quickly fills to and beyond capacity with

inmates other institutions want to get rid of. The

goals of such a screening process and the concerns the goals address are very similar to those

of procedural due process (see sidebar “Avoiding Arbitrary Decisions”). However, a court’s

approach to addressing these concerns may differ

from the process a corrections manager might

select.

Due Process, Segregation,

and ECU Placement 

Due process issues are not new for segregation

units. More than 20 years ago, due process issues

were addressed at the Pennsylvania State Correctional Institution at Huntingdon. The Supreme

Court said in Hewitt v. Helms that the language

of regulations and policies governing the placement decision could create a “liberty interest”

triggering minimal due process protections around

the placement of an inmate in administrative

48Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

The goal of procedural due process is to ensure that

decisions affecting the life, liberty, or property of an

individual are made fairly, on a sound factual basis “to

protect the individual against the arbitrary actions of

government.”*

*Wolff v. McDonnell, 418 U.S. 539 (1974). 

Avoiding Arbitrary Decisions 

87 Riveland, Supermax Prisons: Overview and General Considerations, p. 8.

88 Ibid., p. 9.
segregation, even though the 14th Amendment

itself does not inherently provide any protections.89 The Court also said that the 14th Amendment requires periodic reviews of segregation

status, although the Court did not indicate how

frequently such reviews should take place. 

What is new in the due process arena is the question of what process is due an inmate who is proposed for ECU placement. Highlighting the

newness of this issue is the 2004 decision from

the Sixth Circuit Court of Appeals in Austin v.

Wilkinson.90 Many thought that two earlier Supreme Court decisions had answered the “what

process is due” question—and the answer was

either “none” or “very little.” Austin instead finds

that inmates proposed for ECU placement are due

a process similar to that followed for a major disciplinary hearing. 

The Sixth Circuit’s 2004 decision distinguishes

the facts in Austin from those in the Supreme

Court’s 1983 decision in Hewitt v. Helms91 and its

1995 decision in Sandin v. Conner.92 Together,

these two cases suggested that no due process

protections might apply to the ECU placement

decisions but, if they did, they would be truly

minimal (e.g., notice of the proposed decision and

an opportunity for the inmate to respond to the

decisionmaker either in person or via a written

statement). 

Hewitt dealt with the decision to place an inmate

in administrative segregation. Although the facts

of the case involved a placement of relatively

short duration, the decision in no way suggests

that the length of time an inmate might spend in

49The 14th Amendment: Due Process and Placement

administrative segregation determined the Court’s

holding. In Hewitt, the Court said that the 14th

Amendment does not provide any inherent protections for inmates with regard to placement

decisions. The Court also said, however, that this

finding did not end the question of whether any

due process protections applied. The state could

create “liberty interests” by adopting rules and

regulations that placed “substantive limitations”

on the otherwise unlimited discretionary powers

of the official making the decision. If such limitations existed, the Court said, they resulted in a

“state created liberty interest.”

The Court went on in Hewitt to find that the

administrative segregation placement rules the

Pennsylvania Department of Corrections had

adopted did create a liberty interest around the

placement decision. Therefore, said the Court, the

inmate 

must merely receive some notice of the

charges against him and an opportunity

to present his views to the prison official charged with deciding whether to

transfer him to administrative segregation. Ordinarily, a written statement by

the inmate will accomplish this purpose, although prison administrators

may find it more useful to permit oral

presentations in cases where they

belief a written statement will be

ineffective.”93

In Hewitt, the Court refused to apply the due

process rules it had applied a few years earlier (in

Wolff v. McDonnell) for inmate disciplinary

89 Hewitt v. Helms, 459 U.S. 460 (1983).

90 Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).

91 Hewitt v. Helms, 459 U.S. 460 (1983). 

92 Sandin v. Conner, 515 U.S. 472 (1995).

93 Hewitt, 459 U.S. at 476.
hearings,94 despite the similarities between disciplinary and administrative segregation. The Court

felt the administrative segregation decision was

predictive and very judgmental, in contrast to a

disciplinary hearing decision, and that the administrative segregation decisionmaking process

might even be “hindered” by proceedings that

are more elaborate.95

A dozen years after Hewitt, the Court reexamined

in Sandin its language-focused “state created liberty interests” test and decided the test was ill

advised because, among other things, it might

actually discourage officials from adopting rules

to guide and structure discretionary judgments. In

place of the state-created liberty interest rule, the

Court adopted a new test that said due process

protections would apply to a particular decision if

the decision resulted in an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.”96 Looking at the

facts in the Sandin case, the Court said that placing an inmate in disciplinary segregation for 30

days did not impose an atypical hardship, so no

due process protections were required for such a

decision. 

Does placing an inmate in an ECU—a prison system’s most restrictive housing environment—

impose an atypical hardship where a 30-day

placement in disciplinary segregation does not?

The Sixth Circuit’s 2004 Austin decision says that

it does. In reaching this conclusion, the court

compared conditions in the Ohio State Penitentiary ECU to those in Ohio’s general prison

population settings and/or to conditions in the

state’s administrative segregation units. Under

either comparison, the court decided, the ECU

conditions met the “atypical” test. The court also

decided that because such a small percentage of

the total Ohio prison population ever lived in the

ECU, conditions there were virtually by definition

not “ordinary” under the Sandin test. 

The 2004 Austin decision is not the only time a

court of appeals considered whether long-term

segregation crosses over into “atypical” country—

although it may be the first time the question has

been considered in the specific context of an

ECU, as opposed to more traditional long-term

administrative segregation. Some results from

other courts differ from those in Austin. Some

courts have said that if an inmate is in a status

that is within the legal range of custodial confinement allowed under state laws, the status cannot

be atypical.97 Under this approach, ECU placement would not trigger due process protections as

state law typically gives the department of corrections complete discretion to place inmates in any

institution under its control, be it honor camp or

ECU. 

Other courts have taken the same general

approach taken by the Austin court in that they

compared conditions in the ECU with other, more

common conditions in the prison system and also

considered duration of the ECU placement.98

Most recently, the court in Colon v. Howard (a

2000 case cited in footnote 98) used this approach

and ruled that 305 days in ECU segregation at an

50Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

94 Wolff v. McDonnell, 418 U.S. 539 (1974).

95 Hewitt, 459 U.S. at 474, n. 7. 

96 Sandin, 515 U.S. at 472, 484. 

97 Cases that at least appear to embrace this approach include Luken v. Scott, 71 F.3d 192 (5th Cir. 1995); Talley v. Hesse,

91 F.3d 1411 (10th Cir. 1996); Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997); and Fraise v. Terhune, 283 F.3d 506 (3d

Cir. 2002).

98 Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995), vacated on other grounds, 117 S. Ct. 1840 (1997); Hemphill v. Delo,

105 F.3d 391 (8th Cir. 1997); Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997); and Colon v. Howard, 215 F.3d 227 (2d Cir.

2000). 
upstate New York correctional

facility amounted to an atypical

deprivation. 

It is not surprising that courts

would regard ECU placement—

with its typically long duration,

very strict conditions, and limited privileges—as an atypical

deprivation, compared to the

ordinary conditions of prison

life. The ECU environment is

certainly much harsher than the

setting in which the general

prison population lives. Not all

courts have taken this position, however; eventually, the

Supreme Court is likely to

decide the question. Meanwhile, agencies with

ECUs should pay close attention to legal developments in this area of due process so they will be

aware of any new constitutional mandates that

affect their operations. 

Summary: Assume due process protections

apply. From a national perspective, there is

no clear position on whether placement in an

ECU imposes an atypical deprivation. Given this

uncertainty—and given the 2004 Austin decision, which specifically addresses this point—

corrections agencies would be prudent to assume

that some level of due process protections will

apply in ECU placement decisions and should

structure their admission decision process accordingly. A placement process that includes due

process procedures not only facilitates a defense

should due process litigation arise, it furthers the

agency’s goal of basing ECU

placements on reliable information and sound judgment.

What Process

Might Be Due? 

Assuming that placement in an

ECU for a period likely to

exceed a year will be found to

be an atypical deprivation that

triggers due process protections, the question then becomes what form those

protections must take. With

the Austin case being the

notable exception, the courts

are nearly unanimous in holding that those protections are the minimal ones

defined by the Supreme Court in Hewitt and not

the Court’s more adversarial, disciplinary-type

procedures in Wolff.99 (The “Comparing Wolff and

Hewitt” sidebar later in this chapter summarizes

these two approaches to due process.)

The Traditional View 

For many years, courts took what now may be

considered the “traditional” view that said if due

process protections applied to an inmate going

into long-term segregation, then Hewitt defined

the amount of process due. Giving the inmate

notice of the proposed placement and an opportunity to respond would satisfy Hewitt.

A 1986 decision from the Ninth Circuit Court of

Appeals in California, Toussaint v. McCarthy, is

51The 14th Amendment: Due Process and Placement

It is not surprising

that courts would

regard ECU 

placement—with 

its typically long 

duration, very strict

conditions, and limited privileges—

as an atypical 

deprivation, 

compared to the

ordinary conditions

of prison life.

99 Both Madrid in 1995 and, later, Koch v. Lewis (216 F. Supp. 2d 994 (D. Ariz. 2001)) held that Hewitt defines the

process due. Koch has language indicating concerns that greater procedural protections should apply, given the severity

of long-time SHU placement; however, the court stopped short of saying that Wolff procedures were required. The Koch

decision focuses more on evidentiary questions and is discussed elsewhere in the text. 
perhaps the most noteworthy of due processrelated decisions concerning administrative segregation.100 Although Toussaint dealt with long-term

segregation units in an era before the term “supermax” had been coined, the segregated lock-up

units at San Quentin, Folsom, Soledad, and Deuel

Vocational Institute under review in the case

served the same function that ECUs serve for

many jurisdictions today: to house inmates

thought to be the most dangerous in the prison

system.

While the segregation placements in Toussaint

may not have been as isolating as placement in a

modern ECU unit can be, the units served the

same function, and conditions in the units were

onerous by any measure. Instead of the isolation

of the modern ECU, inmates were exposed to the

constant din of multilevel tiers of cells, where

they were housed 23 hours per day. Placement

was often measured in years. The district court

that originally heard the case found conditions to

be unconstitutional in several respects, including

double-celling and inadequate heating and ventilation, plumbing, lighting, sanitation, exercise,

and food.101

In ordering the corrections agency to conduct a

Wolff-based, disciplinary-type hearing as a condition to placing inmates in these segregation units,

the district court had relied largely on a conclusion that placement prevented the inmate from

earning good time credits. This decision was

reversed on appeal. However, the appellate court

found that language in various state regulations

combined to create a due process-protected liberty interest under the Hewitt test. The appellate

court rejected the lower court’s requirement of a

disciplinary-type hearing, for two reasons: (1) the

state had a very strong interest in maintaining

security and safety, and that interest could be

compromised through more complicated due

process proceedings; and, even more significantly,

(2) a disciplinary-type hearing would be of little

value given the reasons inmates are placed in

long-term segregation. The Ninth Circuit’s reasoning in this case contains important insights for

prison administrators:

Given the disruptive propensities of the

inmate population, we are especially

sensitive to the Supreme Court’s

[Hewitt] admonition that “[t]he safety

of the institution’s guards and inmates

is perhaps the most fundamental responsibility of the prison administration.” The state’s interest in maintaining

safety and security weighs heavily in

favor of avoiding prolonged and cumbersome administrative proceedings. 

Finally, the value of Wolff-type procedures was minimal in the context of

the decision to segregate a prisoner for

administrative reasons. When determining whether the prisoner was guilty

of misconduct, as was the case in

Wolff, the inquiry is essentially factual.

The prison administrator seeks to

determine whether the prisoner committed the alleged offense. When

deciding whether administrative segregation is needed, however, the administrator relies largely on subjective

factors:

In assessing the seriousness of a threat

to institutional security, prison administrators necessarily draw on more than

specific facts surrounding a particular

52Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

100 Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986). 

101 Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C. Cal. 1984).
53The 14th Amendment: Due Process and Placement

incident; instead, they must consider

the character of the inmates confined

in the institution, recent and longstanding relations between prisoners and

guards, prisoners inter se, and the like.

In the volatile atmosphere of a prison,

an inmate easily may constitute an

unacceptable threat to the safety of

other prisoners and guards even if he

himself has committed no misconduct;

rumor, reputation, and even more

imponderable factors may suffice to

spark potentially disastrous incidents.

The judgment of prison officials in this

context, like that of those making parole decisions, turns largely on purely

subjective evaluations and on predictions of future behavior; indeed,

the administrators must predict not

just one inmate’s future actions, as

in parole, but those of an entire institution. A trial-like proceeding is 

unlikely to inform a prison administrator regarding such subjective

considerations.102

Relying on Hewitt, the Ninth Circuit said that

prison officials had to “hold an informal nonadversary hearing within a reasonable time after the

prisoner is segregated” and had to inform the prisoner of the “reasons for considering segregation”

and that the inmate had to be “allowed to present

his views.”103 The court specified that due process

did not require any of the following:

■ Written notice of charges.

■ Representation by counsel or counsel

substitute. 

■ Opportunity to present witnesses.

■ Written decision describing the reasons

for placing the inmate in administrative

segregation.

■ Disclosure of the identity of any person providing information about the proposed

placement.104

In Madrid (the Pelican Bay case), the court found

that due process protections were necessary for

placement in California’s highly restrictive SHU

and that the Hewitt-type process was sufficient.105

In McClary v. Kelly,106 the court also held that

Hewitt defined the amount of process due for

placement in an ECU.107

A Contrary View 

But what about Austin? In considering the Ohio

Department of Corrections’ procedures for ECU

placement decisions, the Austin district court (in

2002) and appeals court (in 2004) noted that the

Supreme Court’s 1995 Sandin decision so undermined its earlier Hewitt decision that severity of

deprivation had to be considered in determining

how much process was due inmates in ECU

placement decisions. 

102 Toussaint, 801 F.2d at 1100 (emphasis added, internal citations omitted).

103 Id.

104 Id. at 1101.

105 Madrid, 889 F. Supp. at 1274.

106 McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. 1998).

107 Note that the Madrid decision came before the Supreme Court’s 1995 Sandin decision that made atypical hardship a 

condition for due process protections; McClary came after Sandin.
Using a Hewitt-based process, the Ohio Department of Corrections had been giving inmates 

48-hour notice of classification committee

reviews for possible ECU placement. Inmates

could appear before the committee and make oral

and written presentations. Both the district court

and the court of appeals felt that even though

placement in Ohio’s ECU was a forward-looking,

predictive decision, the loss the inmate faced—

combined with the risk of error in the Department’s simple hearing process—meant that due

process required a more adversarial, Wolff-type

procedure.

The court of appeals approved the district court’s

order in most respects. Most notably, the order

required the Department to give the inmate written notice of all the grounds being used to justify

placement in “high maximum custody” status

plus a summary of the evidence prison officials

would rely on for placement. (Under the Department’s rules, placement can occur only if

certain historical, factual “predicates” exist.

Placement cannot occur unless the inmate meets

one or more specified criteria; however, meeting

one or more criteria does not mandate placement.) Interestingly, the Department’s policy

required 48-hour notice, but the district court,

which found that policy constitutionally deficient,

only required 24-hour notice (as called for under

Wolff).108 The appellate court did not change the

24-hour notice aspect of the lower court decision. 

The court order also specified the following:

■ Inmates can call witnesses and present documentary information, unless doing so would

be unduly hazardous. 

■ The Department must make a record of all

classification committee proceedings.

■ Special precautions are necessary if the

Department wants to rely on information

from confidential informants in making a

placement decision.

■ If an official above the classification committee considers information that the classification committee has not considered, the inmate

must receive notice of this fact, a summary of

the evidence involved, and an opportunity to

respond in writing. 

Due Process and the Quality

of Placement Decisions 

Does more due process enhance placement decisions? In other words, will a proceeding that

resembles a disciplinary hearing lead to more

appropriate decisions regarding the prolonged

confinement of inmates in ECUs than are possible

with a classification-type process? The sidebar

“Comparing Wolff and Hewitt” addresses this

question. 

Meaningful Notice 

The notice in an ECU placement proceeding is

likely to be quite different from the notice in a

disciplinary hearing. The latter can and should be

quite specific: “You are charged with violating

Rule 06: assaulting an officer. The incident took

place on January 27 at approximately 2 p.m. in

the dining hall. You struck Officer Jones with

your fist.” Time, place, and quite specific facts are

included in the formal notice or in an officer’s

report attached to the formal charging document.

54Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

108 Austin v. Wilkinson, 189 F. Supp. 2d 719, 747 (N.D. Ohio 2002).
55The 14th Amendment: Due Process and Placement

T

his summary compares two approaches to

due process: (1) a disciplinary-type hearing,

as defined by the Supreme Court in 1974

(Wolff v. McDonnell); and (2) a classification-type

process for placing inmates in long-term segregation, as defined by the Court in 1983 (Hewitt v.

Helms).

Purpose

Wolf: Determine after the fact whether the inmate

violated a specific disciplinary rule; if so, impose a

sanction.

Hewitt: Make a more general evaluation of inmate’s behavior, associations, and attitude; then

predict the inmate’s threat to safety and security.

New factual determinations may or may not be

associated with the decision.

Comment—Hewitt discusses the nature of the

segregation decision. ECU placements may be

predictably longer than what the Supreme Court

envisioned in Hewitt, but the nature of the

decision is the same. 

Notice

Wolff: Notice of charges at least 24 hours before

hearing.

Hewitt: Notice of reasons for proposed placement.

Comment—No real difference, assuming the

inmate receives the Hewitt notice before the

placement decision is made. However, a Hewitt

notice is likely to be more wide ranging and somewhat vaguer than a notice of charges in a disciplinary hearing.

Hearing

Wolff: Adversary-type hearing.

Hewitt: Nonadversarial hearing; the inmate has

an opportunity to present views. The institution

decides whether the inmate’s presentation is oral

or in writing.

Comment—A Hewitt “hearing” could perhaps be

more accurately described as a “meeting.”

Witnesses

Wolff: Right to call witnesses, unless a particular

witness would present a security or safety risk.

Hewitt: No right to call witnesses.

Comment—The biggest area of difference. For

example, if the placement decision involves new

factual determinations, such as the nature and

extent of an inmate’s gang associations, an inmate

with no right to call witnesses will find it difficult

to rebut any allegations. However, as a practical

matter, could the inmate rebut these allegations

in a Wolff-type hearing? Probably not. This is why

factual determinations should be based on fair,

thorough, and accurate investigations by the

institution.

Decisionmaker

Wolff: Neutral decisionmaker.

Hewitt: Not addressed.

Comment—The classification process is presumably

neutral.

Representation

Wolff: Right to assistance if the inmate is illiterate

or otherwise unable to prepare and present the

case.

Hewitt: Not addressed.

Comment—Assistance could be provided to

inmates in the classification process. 

Informants

Wolff: Protections to ensure that confidential

informants are reliable and credible. (This requirement actually comes from post-Wolff decisions.)

Hewitt: Not addressed.

Comment—The institution has its own interest

in ensuring the reliability and credibility of

informants.

Written Decision

Wolff: Written decision, indicating the evidence

relied on and reasons for the sanction.

Hewitt: Not addressed.

Comment—A properly developed administrative

process should generate a written decision, indicating the basis for the decision. A written decision

is important because it will be the basis for any

appeal by the inmate, an element in any audit of

the placement process, and, probably, the starting

point for any future reviews of the inmate’s status.

Comparing Wolff and Hewitt
In contrast, an ECU placement

notice starts with an assertion

such as “you are considered to

be a threat to the security of the

institution.” It then gives the

reason(s) for the assertion, such

as “your long, assaultive disciplinary record, and your association with gang activity.”

Information about the inmate’s

attitude and adjustment problems may also be included. In short, the notice

covers relatively large areas of concern, some

quite specific (disciplinary record), others less so

(e.g., gang affiliation and activity may be less

clear and/or based on informant information), and

some quite subjective (adjustment, attitude). 

Even though an ECU placement notice is likely to

be less specific than a disciplinary hearing notice,

it should try to fairly explain what will be considered in the placement decisionmaking process.

Simply notifying the inmate that “we think you

are a security threat” does not suffice. The 2004

Austin decision helps to clarify what is required:

not only a notice, but summaries of the evidence

prison officials plan to rely on in the placement

process.

Calling Witnesses 

The inmate’s limited right to call witnesses in an

ECU placement process is probably the most

significant difference between this process and

the disciplinary hearing. However, the author

agrees with the Toussaint decision that a Wolffbased, disciplinary-like model will not improve

the quality of decisionmaking in the context of

ECU placement. (This view is based on the

author’s 30 years of experience in writing and reviewing

disciplinary rules and prison

disciplinary processes.109) 

The factual basis of a longterm segregation decision may

be clearly established (e.g., an

inmate’s history of serious disciplinary infractions), but it is

likely to be more complicated,

involving factors such as intelligence information

about gang activity or other illicit behavior that

indicates a threat but has not yet manifested itself

in disciplinary infractions. The factual basis may

be in the “suspicion” stage. If the institution has

strong indications that an inmate is a danger to

security, does it wait until the suspicions are

proven as fact, or does it segregate the inmate on

the basis of the suspicions? Suspicion-based decisions are at least a possibility. 

The “facts” are only part of the placement decision. The other, arguably more important part is

a predictive judgment, made in light of whatever

information the institution has, about whether the

inmate is enough of a threat to security (or whatever other criteria are being considered) to warrant placement in the prison’s highest security

classification. 

How much impact will an inmate’s ability to call

witnesses have on this decision? In the author’s

opinion, little or none on the second part (the

judgment) and probably relatively little on the

first part (the facts). For example, a witness saying the inmate is not an active gang member or

involved in strong-arming activities is not likely

56Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

109 See William C. Collins, A Practical Guide to Inmate Discipline, 2d ed., Kingston, NJ: Civic Research Institute, 1997.

Simply notifying 

the inmate that

“we think you are 

a security threat”

does not suffice.
to sway decisionmakers who have information

to the contrary from a thorough institutional

investigation in which the decisionmakers have

confidence. 

A related consideration is that even a Wolff-type

hearing provides very limited protections for the

inmate with regard to information from anonymous informants. Due process may require the

decisionmaker to assess the credibility of these

informants, but the inmate is not

privy to the information the

assessment relies on and has

virtually no way to rebut any

allegations.110

Perhaps if inmates had investigative resources comparable

to the prison’s and were fully

represented in the process, they

could develop information with

enough credibility to stand

equally with the information

developed by the institution.

However, not even Wolff requires that level of assistance.

Should such assistance be provided, the decision

process surely would become adversarial. 

Comparison to the parole decision provides

another useful perspective. As serious as a decision to place an inmate in long-term segregated

confinement is, is it more serious than the decision to deny an inmate parole? The Supreme

Court has said that the parole consideration

process satisfies due process if it only “affords an

opportunity to be heard, and when parole is

denied it informs the inmate in what respects he

falls short of qualifying for parole.”111

Thorough Investigation: The Key to Fair

Decisions 

Modeling procedural protections after Wolff is

likely to provide only illusory safeguards for

inmates in the ECU placement decisionmaking

process. What is critical to a fair and appropriate

result in this process is the quality of the investigation that provides information for decisionmakers. The

quality of the investigation is

critical because the decision

to classify an inmate into an

ECU is based on subjective

information as well as historic

fact, because the judgment is

inherently predictive, and

because the decisionmaker

often must consider substantial

amounts of information compiled from a variety of sources. 

The appropriate model for

ECU placement decisions is an

administrative one in which decisions are based

only on complete, reliable information about the

inmate. An adversarial model is not appropriate.

To some extent, the debate about procedural protections (see sidebar “The Due Process Debate”)

misses the mark if it tries to choose between

Hewitt and Wolff. Neither of these cases addresses

the quality of information the institution develops

to support reclassification. The Wolff adversarial

process and right to call witnesses address the

“quality of information” issue in theory, but the

57The 14th Amendment: Due Process and Placement

110 McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982). 

111 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979).

What is critical to a

fair and appropriate

result in this process

is the quality of 

the investigation

that provides 

information for

decisionmakers.
theory is a long way from reality. An inmate is

unlikely to be able to undercut the institution’s

factual assertions or demonstrate that those assertions are based on sloppy investigatory work and

should not be credited. 

The largely administrative process that California

followed in its segregation decisionmaking was

approved by the courts in the 1995 Madrid finding. That process, which provided inmates with

two opportunities for input, is discussed later in

this chapter. 

Evidentiary Tests 

Placement decisions are judgmental and predictive, but they are not made on a whim. Officials

must weigh the individual inmate’s interests in

not being confined in an ECU against the larger

interests of safety and security of inmates, staff,

and the institution in general. In such cases, there

is pressure on officials to weigh the larger interests more heavily, i.e., to err on the side of

caution for the larger prison community. However, placement decisions ultimately rest on a

factual foundation. How “sound” must that foundation be? How much evidence is required to

conclude that an inmate presents such a serious

threat that ECU placement is necessary? 

Ironically, the Austin decision, which imposes relatively stringent requirements for ECU placement

decisions, does not address questions about the

quality or quantity of evidence necessary to support such decisions. However, the courts have

provided some guidance in earlier decisions. 

Even in regard to traditional inmate disciplinary

proceedings, the due process clause barely touches on the question of the amount of evidence

required. Years ago, the Supreme Court held that

a finding of guilt in a disciplinary hearing that

involves deprivation of a liberty interest must be

supported by “some evidence in the record.”112 To

a court reviewing the evidence in a disciplinary

58Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

T

he debate about what process is due an

inmate facing possible ECU placement has

three branches:

1. No process is due. This is the ultimate argument under Sandin v. Conner.

2. Placement in an ECU amounts to atypical deprivation under Sandin and thus invokes due

process protections. The required protections

are defined by Hewitt v. Helms and take the

form of notifying the inmate and providing

the inmate with an opportunity to respond.

This can be described as the Sandin/Hewitt

position. 

3. Placement is such a serious deprivation under

Sandin that the more expansive due process

protections in Wolff v. McDonnell are

required. This is the Sandin/Austin position.

Given that the goal of due process in any context

is to enhance the fairness of the decisionmaking

process and to guard against arbitrary actions on

the part of the government, none of these three

options addresses the most important aspect of

the ECU placement decision: the quality of the

information on which the decision is based. 

The Due Process Debate

112 Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985).
hearing under this test, “the relevant inquiry is

whether there is any evidence in the record that

could support the conclusion reached by the

prison decision makers.”113 This is a very low

level of judicial scrutiny. The court cannot substitute its judgment for the prison official’s as to

the weight of the evidence. It can only determine

whether the record contains any evidence that

could have supported the finding. 

Courts apply the “some evidence” rule in the context of administrative segregation placements.114 If

a court finds that the decision to place an inmate

in an ECU involves a protected liberty interest

under Sandin, it probably will apply the “some

evidence” rule in reviewing that decision.115 As

part of the “some evidence” review, a court is also

likely to consider whether the evidence bears

some “indicia of reliability.”116

In Madrid, the court said that placement of

inmates in the Pelican Bay SHU because of gang

affiliation had to be based on information with

“some indicia of reliability.” This meant that there

had to be some factual information “from which

the IGI [Institutional Gang Investigator] and the

classification committee ‘can reasonably conclude

that the information was reliable.’”117 The sidebar

“Applying Evidentiary Tests: A Case Study”

describes now one court applied both the “some

evidence” and “some indicia of reliability” tests.

59The 14th Amendment: Due Process and Placement

113 Madrid, 889 F. Supp. at 1273, citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). 

114 Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001).

115 A court has accepted results from properly performed polygraph tests under the “some evidence” rule (Toussaint v.

McCarthy, 926 F.2d 800 (9th Cir. 1990)).

116 Madrid, 889 F. Supp. at 1274.

117 Id.

I

n a 2001 case, Koch v. Lewis, the district court applied

the “some evidence” and “indicia of reliability” tests in

a case involving an inmate who was placed indefinitely

in a special management unit (SMU) after the prison

validated his membership in a security threat group, the

Aryan Brotherhood (AB). This placement was likely to last

for the rest of the inmate’s prison term, because gang

members who entered the unit rarely left it. 

The validation, which took place in 1998, was based on

the following: a 1981 group photo in which the inmate

posed with known AB members; testimony that AB members never pose for photos with nonmembers; information that the inmate had been seen in the company of

four AB members (although no information about what

they discussed); and two lists of AB members, seized from

members, on which the inmate’s name appeared.a

The court accepted that this information established gang

membership. However, the court went on to conclude

that membership alone would not support placement in

the SMU, citing a combination of conditions in the SMU

and the fact that it was virtually impossible for inmates

to get out of the SMU if they were placed there because

they were gang members.b

aFor an informative discussion of the Aryan Brotherhood, see David

Grann, “The Brand,” The New Yorker, February 16, 2003, p. 157.

bKoch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz. 2001).

Applying Evidentiary Tests: 

A Case Study
Quality of Information: The

Institution’s Responsibility 

Assuming that an inmate receives notice of potential placement in the ECU, that the notice

explains the reasons for the placement, and that

the inmate has an opportunity to respond, a

fundamental concern—with clear due process

implications—remains: Is there a sound basis for

the decision? In other words, does the decisionmaker have information that reasonably supports

a conclusion that the inmate

fits one or more of the

agency’s criteria for ECU

placement? 

As a determinant of the placement decision, the quality of

the information before the

decisionmakers is more important than the inmate’s opportunity to appear before them. Yet

the due process protections

considered by the courts do not

seriously address quality of

information. Therefore, institution officials must establish

their own investigative processes to produce reliable information. They then must be prepared to

demonstrate to a court that the process is designed

to produce reliable information and that, in fact, it

does so.118

Workload Considerations 

A certain workload burden is imposed by notifying inmates of proposed ECU placement and

giving them opportunities for input, but the

burden is relatively insignificant. The most

workload-intensive element of the initial placement decision is the investigative process that

produces the package of accurate and reliable

information that officials will consider in making

the placement decision. 

Periodic Reviews 

In Hewitt, the Supreme Court said in a footnote

that periodic reviews of placements were required, lest administrative segregation “be used as a pretext

for indefinite confinement of

an inmate.”119 The Court did

not prescribe the form such a

review should take, how often

it should take place, or even

what role the inmate should

have in the review, if any. In

the Toussaint case, the Ninth

Circuit said that annual reviews were too infrequent but

did not say what frequency

would be appropriate. 

To some extent, the frequency

of reviews will depend on the

circumstances surrounding an inmate’s placement

in segregated confinement. If the initial placement

is presumptively for an extended period, as is the

case in the typical ECU placement, very frequent

reviews appear to have no productive purpose. 

With periodic reviews, as with the initial ECU

placement decision, the management-related

interests of the institution and the concerns of the

courts coincide. The prison has no interest in

keeping someone in an ECU without good reason.

If the concern that prompted the initial placement

60Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

118 The discussion of Jones’El in the chapter on mental health issues noted that shortcomings in a mental health screening

process (an expert pointed out errors in 4 of 20 files reviewed) contributed to the court’s finding that some inmates had

been improperly placed in the Wisconsin supermax facility. Officials should expect similar scrutiny of other aspects of

the placement process. 

119 Hewitt, 459 U.S. at 477, n. 9.

With periodic

reviews, as with 

the initial ECU

placement decision,

the managementrelated interests of

the institution and

the concerns of the

courts coincide.
no longer exists and no other has arisen to take its

place, there is no reason to keep the inmate in the

unit. 

Periodic reviews were an issue in Madrid, and the

court approved California’s practice of reviewing

confinement in Pelican Bay’s SHU every 120

days. (The court did not indicate whether a longer

review period would be acceptable.) Madrid did

insist that officials record any evidence rejected in

the initial placement decision, to prevent the discredited information from being considered later

to support retention in the ECU.

The courts have generally been very reluctant to

impose demands on the review process (other

than saying there must be one). In Hewitt, the

Supreme Court said that new factual information

was not necessarily required as part of the

process. As discussed in the next section on

gangs, the court in Madrid approved the practice

of holding inmate gang members in segregation

until they renounced membership, disclosed

names of other members, and revealed information about gang activities—even if an inmate’s

behavior in the ECU had been exemplary and

even though this “debriefing” would label the

inmate as a snitch.

Gang Membership as

Grounds for ECU 

Placement and Retention 

A much more specific issue than the fundamental

due process issues discussed above is the question

of whether gang membership alone can support

placement and retention of inmates in ECU units.

Two district courts have considered this question,

and the two courts disagree. 

The Koch decision, discussed earlier in this chapter, found that gang membership alone could support a short-term placement (the term was not

defined) but that long-term placement (years or

possibly for life) could not be justified without

some indication of an overt act of misconduct.

The program under review in Koch allowed

inmates to get out of the ECU only if they

renounced gang membership and named other

gang members in a “debriefing.” If they did so,

they were moved to another highly secure segregation facility to avoid repercussions associated

with being a “snitch.” No one who had been

debriefed had ever returned to the prison general

population. Thus, it appeared that once segregated,

a gang member would always live under some

form of highly restrictive, segregated confinement. 

Defendants in Koch argued that inmates held the

key to release from ECU segregation through

renouncing and debriefing, but then conceded that

release back to a normal prison existence was virtually impossible. Would the court have been as

concerned about prolonged segregation if these

inmates actually could control their return to the

general prison population? 

In Madrid, the court was also concerned about the

indeterminate placement of inmates in segregation based solely on gang membership. As in

Koch, a gang member’s only way out of the SHU

at Pelican Bay was through renunciation and

debriefing. California officials also conceded that

debriefing would cause an inmate to be labeled as

a snitch. Noting credible evidence from prison

officials that inmates joined gangs “for life,” the

Madrid judge did not find that the policy of

requiring debriefing for transfer out of the SHU

violated the constitution.120

61The 14th Amendment: Due Process and Placement

120 Madrid, 889 F. Supp. 2d at 1278.
California followed a careful process for determining gang membership, although the process

gave the inmate a relatively limited role. Information on gang membership was gathered by the

Institutional Gang Investigator (IGI). Before recommending validation of an inmate as a gang

member, the IGI met with the inmate to discuss

the investigation results and hear the inmate’s

views. The final decision on gang membership

was made by a central office committee, which

did not meet with the inmate. The final decision

to transfer the inmate to the SHU was made by a

classification committee; at this point, the inmate

again had the opportunity to present his views. 

This process, said the district court in Madrid,

met the requirements of Hewitt and provided a

reasonable factual basis for decisions. The inmate

had the required opportunity to present his views

to the official making the gang membership determination at the institution level. As noted earlier,

the court also required that the placement decision rest on an evidentiary basis that has “some

indicia of reliability.”121 At Pelican Bay, if informant information was considered in either the gang

membership validation process or the SHU placement process, the record included information

showing the informant’s reliability. 

Following a process similar to Pelican Bay’s can

protect inmates from arbitrary placement in an

ECU. Such a process can also help the institution

ensure that scarce and expensive ECU housing is

not wasted on inmates who do not need it.

Other jurisdictions take a less dramatic approach

to gang membership and activity. In Ohio, for

example, being a leader in a gang or other “security threat” group is grounds for ECU placement,

but mere membership in such a group is not.122 A

gang member may be watched more closely than

other inmates, but he will not be placed in the

ECU unless he engages in overt gang activity. An

inmate who has been placed in the ECU because

of gang activity can gain release from the ECU by

demonstrating through word and deed over time

that he has dropped out of the gang; a debriefing (naming other gang members) may not be

required. Once released, if he again demonstrates

gang membership, he may be returned to the

ECU.

The approach a department of corrections takes to

gang membership and ECU placement and retention is a matter of agency policy. At this point,

Koch is the only authority saying that membership alone, without overt misconduct, will not

support essentially permanent placement in ECU

status. Madrid accepts that an initial gang membership validation, properly done, can justify a

very long ECU placement. Taking the tough

approach followed by Arizona (Koch) and

California (Madrid) means an agency may face

some difficult litigation. Taking a more flexible

approach may allow the agency to say more convincingly that the inmate, through behavior he

can control, truly holds the key to moving out of

the ECU environment and back into the prison

mainstream.

Summary 

Courts are uncertain as to whether placement in

long-term confinement under the very restrictive

conditions associated with the typical ECU

imposes an atypical deprivation on an inmate and

62Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

121 Id. at 1273.

122 Austin, 372 F.3d at 351.
therefore requires due process protections. Until

the courts speak more clearly on whether and

what kind of due process is required in placement

decisions, corrections agencies

would be prudent to provide

basic procedural protections

that are likely to meet a court’s

requirements. Such protections

also serve prison officials’ own

interests in having an effective

placement decisionmaking

process. These protections

include the following:

■ Notify the inmate of the

proposed placement. In the

notice, explain the reason

for the placement.

■ Give the inmate an opportunity to respond to the

notice in an informal, nonadversarial meeting with

officials.

■ Base placement decisions

on reliably determined facts. In the nonadversarial context of the placement decision, “reliably determined” focuses more on the

institution’s investigatory process than on resolution of factual disputes at the meeting with

the inmate. 

■ Determine the reliability of

informants and the information they provide.

■ Conduct periodic reviews

to determine the need for

continued segregation.

Give the inmate an opportunity to provide input for

retention decisions.

If a corrections agency has

such procedures in place, it has

two choices in responding to

lawsuits that claim deprivation

of due process in segregation

placement and retention decisions. It can argue, under

Sandin, that no due process

protections apply. Or it can

point to its procedures as proof

that protections were provided.

Even if the courts finally agree

that no due process requirements apply to these

decisions, prisons will benefit from having a systematic, fair, fact-based decisionmaking process.

63The 14th Amendment: Due Process and Placement

Until the courts

speak more clearly

on whether and

what kind of due

process is required

in placement 

decisions, corrections agencies

would be prudent

to provide basic

procedural 

protections that 

are likely to meet 

a court’s 

requirements.
65Access to the Courts

7

Access to the Courts

The ECU population includes the most violent inmates in the prison system. It may

also include the most litigious. Every

aspect of the ECU’s operations may be targeted in

lawsuits filed by inmates, without the aid of a

lawyer. One issue ECU inmates are likely to raise

is whether available resources give them meaningful access to the courts. This chapter reviews

Supreme Court decisions concerning inmate

access to the courts, how those decisions have

affected inmate litigation, and implications for

ECU operations (including book paging/delivery

systems). 

Supreme Court Rulings 

In 1977, the Supreme Court said in Bounds v.

Smith that prison officials have an affirmative

duty to provide inmates, including those in segregation, with resources to allow them “a reliably

adequate opportunity to present claimed violations of fundamental constitutional rights to the

courts.”123 The Court reaffirmed this principle in

1996, in Lewis v. Casey.

124

CHAPTER

123 Bounds v. Smith, 430 U.S. 817 (1977).

124 Lewis v. Casey, 518 U.S. 343 (1996).
Bounds spoke of officials meeting their obligations by providing inmates with adequate law

libraries or assistance from persons trained in the

law. Over the years, most prisons opted to meet

the Bounds duty by providing law libraries. As a

result, the right of access to the courts has come

to mean, in day-to-day practice, the right to a law

library.

The 1996 Lewis decision emphasized that the

right of access to the courts is not a right to a law

library and that an institution does not necessarily

need a library to meet its duties under Bounds. In

an aside not essential to its holding, the Court

also noted that for inmates who cannot read, a

library alone does not meet the Bounds-Lewis

obligations.

Providing adequate access to the courts for

inmates in long-term segregation is particularly

problematic. These inmates cannot congregate in

a library. Book delivery systems are cumbersome

and have been criticized by courts in a number of

pre-Lewis decisions. 

Providing assistance from “persons trained in the

law” also is problematic in ECUs. Allowing other

inmates to assist ECU inmates presents potential

security problems and may not be feasible if the

ECU is a free-standing unit. Hiring lawyers, law

students, or lawyers to provide assistance may be

expensive and presents a variety of problems.

The Institution’s Obligations

Under Lewis

The rules governing inmate access to the courts

changed somewhat with the Supreme Court’s

1996 decision in Lewis. Although Lewis reaffirmed the basic principle the Court stated 19

years earlier in Bounds—that prison officials have

an affirmative duty to provide some form of assistance to inmates—Lewis also limited the scope of

topics for which assistance must be given. Lewis

encouraged prison officials to experiment with

different ways of assisting inmates and made it

more difficult for inmates to win cases based on

access issues. 

Limits on the Scope of Legal Assistance 

Under Lewis, the inmate’s right extends only

to assistance in direct or collateral attacks on

convictions (criminal appeals and habeas corpus

petitions) and challenges to conditions of confinement (traditional “inmate rights” issues). The

right does not extend to other types of legal proceedings, such as family law issues. The right

applies only to nonfrivolous claims, although the

Court does not suggest how a prison might determine whether a claim is legally frivolous. (For

this reason, it is very risky for an institution to

attempt to evaluate the potential merits of an

inmate’s claim in determining whether to provide

assistance.) 

Language in the Lewis opinion suggests that institutions need provide assistance only in the initial

phase of litigation (presenting the claim to the

court), not necessarily in subsequent phases (trial,

appeal, etc.) of litigating a claim to its conclusion.

Because this is a very conservative reading of the

opinion, it may not be prudent for institutions to

base their access policy on the assumption that

their duty ends once an inmate successfully files a

complaint. 

However, in one pre-Lewis case, the court

approved an access plan in which the corrections

department contracted with a lawyer to represent

inmates and specified in the contract that the

66Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
lawyer could not represent inmates beyond the filing of the complaint. In that case, inmates did not

have access to a law library.125 A post-Lewis decision from the Seventh Circuit includes language

that suggests a similarly narrow reading of access

rights.126

“Actual-Injury” Requirement for 

Access Litigation 

Under Lewis, it is difficult for inmates to successfully pursue access claims because to have standing to raise such claims in court, they must

demonstrate that they were prejudiced in some

way by the alleged lack of legal resources. An

inmate must show that deficiencies in legal

resources either (1) caused dismissal of a claim

on technical grounds or (2) made it impossible

even to file a claim. Many post-Lewis cases have

been dismissed because the inmate could not

meet the actual-injury requirement; in these cases,

the courts never actually assessed the adequacy of

the prison’s legal resources. Two case studies

illustrate the effects of the Lewis actual-injury

requirement on access litigation (see sidebar

“Effects of the Actual-Injury Requirements:

Case Studies”).

Although the actual-injury requirement may make

it more difficult for inmates to win access claims,

that alone is not justification for institutions to

reduce legal assistance. The dismissals of major

lawsuits such as Klinger and Walters may have

been primarily a matter of timing; i.e., the new

Lewis actual-injury rule was applied to facts

developed in trials that took place prior to Lewis,

when lawyers were not attempting to prove that

67Access to the Courts

Walters v. Edgar. In this classic pre-Lewis access-tocourts claim, a class of inmates in long-term segregation in an Illinois prison alleged inadequate

access to legal materials. The prison used a paging

system, in which the inmates could request materials from a central library. The district court found

the legal resources inadequate under the traditional Bounds test.a However, knowing that Lewis

was pending in the Supreme Court, the district

court postponed its final order. After Lewis was

issued, the court decided that none of the named

plaintiffs met the actual injury test and dismissed

the case, despite the inadequacies it had found in

the prison’s paging system. The dismissal was

upheld on appeal. These results do not constitute

a judicial seal of approval for paging systems; they

mean only that the named plaintiffs could not

show injury. 

Klinger v. Department of Corrections. In this case,

which involved inmates at a women’s prison in

Nebraska, the actual-injury requirement under

Lewis produced even more dramatic results. The

court found a “complete and systemic denial of

access to a law library or legal assistance prior to

January 1989” but dismissed the inmates’ claim

“because none of the inmates suffered actual

injury or prejudice as a result of that denial of

access.”b

Effects of the Actual-Injury Requirement: Case Studies

aWalters v. Edgar, 900 F. Supp. 197 (N.D. Ill. 1995).

bKlinger v. Department of Corrections, 107 F.3d 609, 617 (8th Cir. 1997).

125 Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).

126 Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).
specific inmates suffered from inadequate legal

resources. Proof of actual injury in such cases,

although perhaps difficult to come by, at least

theoretically exists.127

Experimenting With Alternative Legal

Resource Programs 

In both Bounds and Lewis, the Supreme Court

encourages corrections agencies to experiment

with different ways of providing access to the

courts that would be valid unless an inmate

proved the system was frustrating or impeded a

nonfrivolous claim. Portions of Lewis suggest

that the traditional, large law library may not be

required: “One such experiment, for example,

might replace libraries with some minimal access

to legal advice and a system of court-provided

forms...forms that asked the inmates to provide

only the facts and not to attempt any legal

analysis.”128

Another experiment might include building a system of legal resources for inmates around CD–

ROMs or Internet-based computer technology.

As with any approach that assumes an inmate

can read, a computer-based system will not serve

those who cannot. Whether inmates have the

knowledge and skill to use the technology might

also be an issue. Of course, any process that

involves the Internet requires safeguards to ensure

that inmates cannot roam the Internet freely. 

Paging Systems 

Historically, the paging system was probably the

most common approach to providing segregated

inmates with access to the courts. Inmates

requested limited amounts of materials from a

large law library. If available, the materials or

copies were delivered, and when those were

returned, the inmate could make another request.

Even when paging systems worked as designed,

they made major legal research a long, tedious

effort. 

Many pre-Lewis access-to-courts cases examined

paging systems and, in general, found them

unconstitutional. Walters v. Edgar, discussed earlier, is typical of these cases.129 (In Walters, the

court found the paging system inadequate before

ultimately dismissing the case under the Lewis

actual-injury requirement.) 

Problems with paging/book delivery systems for

segregation units include the following:

■ Inmates do not know what is available in the

main library.

■ Inmates cannot get enough books at one time

to research an issue.

■ The system fails to work as designed (e.g.,

requests are lost, deliveries are late, materials

are unavailable).

■ Literacy or language barriers prevent some

inmates from using lawbooks.

In light of the Lewis actual-injury requirement

and the Supreme Court’s encouragement of

experimentation (see earlier discussions in this

chapter), the courts may have to take a second

68Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

127 On the other hand, the author knows of one long-running access-to-courts class action that plaintiffs voluntarily dismissed because they found no inmates who had suffered an actual injury and could, therefore, represent the class of

inmates. 

128 Lewis, 518 U.S. at 352.

129 Walters, 900 F. Supp. 197, reversed on other grounds, Walters, 163 F.3d 430. See also Abdul-Akbar v. Watson, 4 F.3d

195 (3d Cir. 1993), which held that the adequacy of a satellite library depends on other factors such as paralegal services;

and Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990), which held that a combination of satellite libraries and inmate

law clerks provides adequate access to courts.
look at paging/delivery systems for inmates

housed in segregated units. In one post-Lewis

decision, a district court flatly rejected the claim

that an inmate had a right of

physical access to the library;

the court noted that the inmate

could obtain extensive materials and that his well-drawn

complaint and various other

motions indicated that the

paging/delivery system caused

no actual injury.130

One lesson to be learned from

early litigation involving

paging/delivery systems is that

institutions must be able to

demonstrate that the systems

work. They must show that

inmates can make requests,

receive materials in a timely fashion, and get

enough material to conduct a reasonable level of

research. 

Inmates Who Are Unable To

Use Legal Materials 

An effective paging/delivery system may suffice

for inmates who can read and understand library

materials. However, exclusive reliance on any

form of library system, which ultimately depends

on the inmate’s ability to read and understand relatively complicated material, remains problematic

for illiterate inmates, inmates who cannot read

English, and inmates who have very limited intellectual capacity. Sooner or later, an ECU inmate

will have a valid, nonfrivolous claim but will be

unable to pursue it for lack of ability to use available legal materials. The solution is some form of

assistance from persons trained in the law. 

In the general prison population, an inmate who is unable

to use available legal materials

may be able to get help from

another inmate, either a “jailhouse lawyer” or, in some

jurisdictions, a trained inmate

law clerk. However, in an ECU

setting, these forms of inmateto-inmate assistance could

raise serious security concerns

and may not be feasible.

Allowing one ECU inmate to

assist another may also raise

concerns for the administrator. 

The “cleanest” way of delivering legal services

for inmates unable to use written legal materials

is through lawyers or paralegals.131 The important

point is that some form of assistance from persons trained in the law will be necessary for at

least some inmates housed in ECUs.

Summary 

ECU inmates have the same fundamental right of

access to the courts as other inmates. ECU

inmates tend to be very litigious, and institutions

should expect them to challenge any program that

does not provide full access to a complete law

library or extensive assistance from persons

trained in the law. However, under the Supreme

Court’s 1996 decision in Lewis v. Casey, inmates

69Access to the Courts

One lesson to be

learned from early

litigation involving

paging/delivery 

systems is that 

institutions must 

be able to 

demonstrate that

the systems work.

130 Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico 1997). See also Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.

Ind. 1996): “Standing alone, delay and inconvenience do not rise to the level of a constitutional deficiency.”

131 See Carper, 54F. 3d 613.
must demonstrate actual injury before they can

have standing to raise an access-to-courts claim. 

The prison’s affirmative duty is to provide some

level and form of resources to support, in a meaningful way, inmates’ right of access to the courts.

Traditional paging systems, once generally found

inadequate by the courts, may pass muster under

Lewis if the institution can demonstrate that the

system works properly. However, any librarybased system does not meet the needs of inmates

who cannot read English; these inmates require

some form of legal advice. 

In Lewis, the Supreme Court invites prison

administrators to experiment with how they fulfill

their duty to provide meaningful legal resources.

Such experiments might include systems that use

CD–ROM or Internet technology. Any system a

prison uses to provide legal resources in the ECU

is sure to be challenged at some point. 

70Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
71 8

The First Amendment:

Religion, Speech,

and the Press 

Among the losses inmates face when they enter

an ECU are those associated with reduced opportunities to engage in religious practices and

reduced access to mail and publications. At least

to some degree, such reductions raise questions

under the First Amendment. This chapter looks at

the Supreme Court’s test for evaluating restrictions of First Amendment rights and then focuses

on legal considerations related to inmates’ religious practices.

Supreme Court Test for

Evaluating First Amendment

Restrictions 

In the 1987 case Turner v. Safely, the Supreme

Court held that prison officials can restrict an

inmate’s First Amendment rights if the restriction

is reasonably related to a legitimate penological

interest, such as security, order, safety, or rehabilitation.132 Turner requires the courts to ask four

questions when evaluating a restriction of a First

Amendment right:

CHAPTER

The First Amendment: Religion, Speech, and the Press

132 Turner v. Safely, 482 U.S. 78 (1987).
72Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

1. Is there a valid, rational connection between

the restriction and a legitimate penological

interest? Example: Does not allowing ECU

inmates to attend group religious services further a security interest of the prison?

2. Does the inmate have alternative ways to

exercise the right in question? Example: Can

inmates who may not attend group religious

services exercise their religious beliefs in

their cells?

3. If the inmate’s request were accommodated,

what would be the impact on staff, inmates,

and institution resources. Example: Would

allowing an ECU inmate to attend group

religious services create security problems

because the inmate would need to be moved

and because of the group setting?

4. Is there an obvious, readily available alternative to restricting the First Amendment right

in question? (If the answer is yes, the institution’s action probably is not reasonable but is

in fact an exaggerated response to a concern.)

Courts rarely strike down a restriction on

First Amendment-protected activity on this

ground.

In applying this four-part test, courts are expected

to show substantial deference to the judgment

calls of prison officials, especially in regard to

items 1 and 3. So, for example, if an official says

that lack of a particular restriction “might” create

a security problem, a court will generally defer to

that judgment and uphold the challenged restriction under the Turner test.

Meeting the demands of the Turner test is not

difficult, especially when dealing with inmates

who are the highest security risks in a prison system. However, if administrators impose a First

Amendment restriction, the institution bears the

burden of justifying the restriction under the fourpart Turner test. 

Applying the Turner test, the Eighth Circuit

found no First Amendment violation in prohibiting a Native American inmate from having ceremonial pipes, medicine bags, eagle claws, and

altar stones in administrative segregation.133 In a

similar case, a district court upheld a rule that

prohibited inmates in segregation from attending

group religious services.134 Both of these cases

involved clear security concerns.

In the absence of clear security concerns, however, First Amendment restrictions may be more difficult to defend. For example, courts recently

found that denial of a Kosher diet to Jewish

inmates is not justifiable under the Turner test.135

These cases dealt with general population inmates

and considered only Kosher diets (not religious

diets in general). Two of the cases (Johnson v.

Horn and Ashelman v. Wawrzasek) acknowledge

that a prison has a legitimate interest in a simplified food service system. Although it could be

argued that the impact of these cases will be limited and should not affect ECU inmates, a better

reading is that the cases constitute a forewarning

about restrictions on religious diets. Corrections

officials should examine their policies in the context of this growing body of case law to determine what, if any, changes should be made with

regard to ECU inmates’ religious diets.

133 Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).

134 Germunde v. Cook, 684 F. Supp. 255 (D. Utah 1988).

135 Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), in which prison officials conceded that inmates were entitled to some

form of Kosher diet; Ashelman v. Wawrzasek, 111 F.3d 647 (9th Cir. 1997); and Bass v. Coughlin, 976 F.3d 98 

(2d Cir. 1992). However see Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987), which held that a pork-free diet 

sufficiently met a Muslim inmate’s dietary concerns.
The Religious Land Use and

Institutionalized Persons Act 

In the summer of 2000, Congress passed the

Religious Land Use and Institutionalized Persons

Act (RLUIPA), 42 U.S.C. § 2000cc–1. This

statute, which for corrections purposes is essentially the same as the Religious Freedom Restoration Act of 1993, attempts to replace the

institution-friendly Turner test for evaluating

restrictions on First Amendment religious rights

with a more demanding test for evaluating restrictions on religious practices specifically. The provisions of RLUIPA apply to a prison if it or the

corrections department of which it is a part

receives any federal funding, which means it

will apply to virtually all ECUs.

Under RLUIPA, any “substantial burden” on an

inmate’s practice of religion must further a “compelling governmental interest” and be the “least

restrictive” means of doing so. Although courts

will generally accept security as a compelling

governmental interest for a restriction, the “least

restrictive” test invites a court to second-guess a

particular restriction and ask why some other

alternative was not chosen.

Restrictions on religious practices in high-security

units are commonplace. Perhaps because these

restrictions could easily be defended under the

Turner test, their validity has almost become

taken for granted. RLUIPA may force reexamination of many of these restrictions.

In RLUIPA, Congress attempted to avoid the flaw

the Supreme Court found in the Religious Freedom Restoration Act when it declared that statute

unconstitutional as applied to state and local governments.136 At the time this monograph was written, federal appeals courts disagreed as to

whether RLUIPA violates the establishment

clause of the First Amendment.137

Inmate Religious Practices

Not Mandated by Faith 

Faced with an inmate request for some type of

special privilege related to a religious practice,

corrections officials naturally tend to ask leaders

of the inmate’s faith whether the faith requires

believers to engage in that practice. If the answer

is no, that the practice is left to the individual,

officials are likely to deny the request.

Some courts have overruled such denials, saying

that First Amendment protections do not hinge on

whether a particular practice is mandated by the

inmate’s faith.138 Levitan v. Ashcroft, cited in footnote 138, provides a good example. An inmate at

the Federal Prison Camp in Pensacola, Florida,

wanted to have wine as part of the Catholic sacrament of communion. However, a change in the

Federal Bureau of Prisons policy forbade inmates’ use of wine in communion. The district

court upheld the no-wine policy, saying that wine

was not required by the Catholic Church. The

court of appeals reversed the decision, saying that

if the inmate’s belief (in the importance of having

wine, not just grape juice) was sincere and based

on his religious convictions, that was enough to

trigger First Amendment protections. 

The Levitan decision does not say that inmates

have a constitutional right to have wine with

73The First Amendment: Religion, Speech, and the Press

136 City of Boerne v. Flores, 521 U.S. 507 (1997). 

137 Decisions supporting the law include Charles v. Verhagen, 348 F.3d 610 (7th Cir. 2003) and Madison v. Riter, 355

F.3d 310 (4th Cir. 2003). Taking the opposite view is Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003). More decisions

about the law probably will have been reached by the time this monograph is published, and a Supreme Court review

seems both inevitable and necessary.

138 Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002); LaFevers v. Saffle, 936 F.3d 1117 (10th Cir. 1991).
communion. It says that

although the Bureau’s reason

for denying the wine request

was not valid, the restriction

still might be defensible under

the Turner test (i.e., whether

the restriction is reasonably

related to a legitimate penological interest). If the inmate

were to raise a RLUIPA issue

(see previous section), the

restriction would be analyzed

under the RLUIPA test, which

is more demanding than the

Turner test.

The point of this discussion is not whether

inmates have a right to wine with communion.

The point is that if a practice has even the slightest support from an inmate’s faith, courts may

extend First Amendment protections to the practice and require officials to justify restricting or

banning it, through either the Turner test or the

RLUIPA test. Knee-jerk denials of requests simply because they are not required by the inmate’s

faith may find little favor with a reviewing court.

If officials want to raise the “it isn’t required”

argument when an inmate challenges their denial

of a request, they should also present arguments

based on the Turner and/or RLUIPA tests, indicating, for example, how the restriction addresses

legitimate security concerns and why a less

restrictive option is not viable. Because of the

ECU’s very substantial security concerns, such

arguments have a better chance of success than an

“it isn’t required” defense.

Sincerity of

Beliefs 

The First Amendment extends

protections only to sincerely

held religious beliefs. If the

inmate is not sincere about his

religious beliefs and practices,

then the institution has no duty

to accommodate them, and a

court will not ask the institution to show a legitimate reason for imposing bans or

restrictions on them. 

It is, however, difficult to mount a successful

defense based on the premise that an inmate’s

religious beliefs are not sincerely held. Neither a

long criminal history nor a notorious institutional

record shows insincerity, although both could be

relevant to the inquiry. That an inmate does not

follow every tenet of a faith does not necessarily

show insincerity.139

In assessing an inmate’s sincerity, officials should

keep in mind that the seclusion and idleness of

the ECU may lead some inmates to examine and

renew their religious beliefs or embrace new

belief systems. Others may simply want to participate in one of the few programs the ECU offers,

to fill time. Some may look at religious issues as

fodder for litigation.

Convincing a court that an inmate’s religious

beliefs are not sincere probably will require a relatively complicated showing of facts. The burden

74Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Only in the clearest

circumstances

should prison 

officials deny a

request on the basis

that an inmate’s

beliefs are insincere.

139 Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).
will be on the prison officials to convince the

court that the inmate is not sincere in his beliefs.

Only in the clearest circumstances should prison

officials deny a request on the basis that an inmate’s beliefs are insincere. As with the “it isn’t

required” defense discussed above, the “lack of

sincerity” defense should, if possible, be accompanied by arguments based on the Turner and/or

RLUIPA tests. 

Summary 

The restrictive environment of the ECU can raise

First Amendment issues. In considering inmates’

demands regarding religious and other types of

activities, corrections officials should be aware of

how the courts may review their response.

The Supreme Court, in Turner v. Safely, defined

a four-part test for evaluating whether a particular

First Amendment restriction is justified. Institutions have not found it difficult to meet this test,

which basically requires a reasonable connection

between a restriction (e.g., not allowing ECU

inmates to attend group religious services) and a

legitimate penological interest (e.g., security).

When restrictions on religious practices are at

issue, institutions may also need to show why a

less restrictive alternative was not possible. In

general, an institution’s defense of a challenged

restriction should not rely solely on an argument

that a particular practice is not mandated by the

inmate’s faith or that the inmate’s religious beliefs

are not sincerely held.

75The First Amendment: Religion, Speech, and the Press
77Closing Thoughts

Closing Thoughts

The concept of an extended control unit—

the “supermax prison”—is now embedded in American corrections. Planning for

the creation of an ECU is an experience that still

awaits many agency officials. But for those currently responsible for operating ECUs, a major

challenge lies in recognizing just how many legal

issues can arise and supervising operations

accordingly.

Based on a limited body of case law, it can be

concluded that the most significant legal issues

facing ECUs are those concerning inmates who

are mentally ill or whose behavior suggests they

may be mentally ill. Are there some inmates who

should not be placed in an ECU? If so, who are

they and how can they be screened out? Are there

others whose mental status is harmed by living in

the ECU? If so, how can they be identified and

moved elsewhere?

The issue then moves beyond the scope of this

monograph. Where does a prison system place

inmates who (1) present a high security risk but
(2) cannot be placed or held in

an ECU? Must a new type of

high-security mental health unit

be developed? Can ECU operations be modified to accommodate some or all of this (as yet

somewhat vaguely defined)

group of inmates?

Even setting these issues aside,

ECUs may be the most difficult

type of prison to operate, given

the nature of the inmates typically placed in them. Certainly

ECU inmates and the management strategies used to control them give rise to a

prison system’s most concentrated, intense legal

concerns.

Services that are especially critical from a legal

perspective—such as those related to medical and

mental health care and access to the courts—are

difficult to deliver in ECUs. Use of force is an

ever-present issue in the ECU, where inmate

behaviors test officers’ professionalism. In the

absence of close supervision and review, use of

force can deteriorate into endemic abuse of force. 

The keys to avoiding legal pitfalls and reducing

liability exposure are the same in the ECU as anywhere else in the prison system:

■ An informed assessment of the needs and

characteristics of the target population. 

■ A clearly defined mission and a comprehensive plan of operation.

■ Careful development of

policies and procedures,

with a close eye to legal

issues.

■ Funding and staffing commensurate with the

identified needs and

mission.

■ Training to promote a skillful and knowledgeable

workforce. 

■ Perhaps most importantly:

commitment on the part of

supervisors and managers—from sergeant to warden to agency head—to ensuring humane and

legal operations.

If these factors are ignored—especially if supervision and management are lax—the ECU can

become fertile ground for destructive interactions

between staff and inmates. The result will be

intervention by the courts.

In seeking to minimize exposure to liability,

should corrections agencies look beyond these

traditional, internal approaches and consider

external sources of assistance? One possibility

would be to solicit an outside review—perhaps

from professionals who operate what the field

recognizes to be top-notch ECUs—that asks “how

are we doing?” Another would be to invite mental

health experts into the facility to evaluate critical

inmate mental health issues and perhaps to conduct formal peer reviews of mental health-related

decisions. 

78Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT

Certainly ECU

inmates and the

management 

strategies used to

control them give

rise to a prison 

system’s most 

concentrated,

intense legal 

concerns.
Periodic external reviews of ECU operations offer

an important advantage: perspective. Problems

can develop slowly and incrementally. What

someone looking at the facility for the first time

identifies as a fairly obvious problem may be

essentially invisible to those who work there

because the problem crept insidiously into operations and became part of the institutional culture.

The external review may be able to identify

“problem creep” and give ECU managers important feedback in time to address potential constitutional issues before they reach litigation.

79Closing Thoughts
81

Table of Cases

Table of Cases 

Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir.

1993).

Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir.

1996).

Ashelman v. Wawrzasek, 111 F.3d 674 (9th Cir.

1997).

Austin v. Wilkinson, 189 F. Supp. 2d 719 (N.D.

Ohio 2002).

Austin v. Wilkinson, 204 F. Supp. 2d 1024 (N.D.

Ohio 2002). 

Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004).

Bass v. Coughlin, 976 F.3d 98 (2d Cir. 1992).

Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994).

Bounds v. Smith, 430 U.S. 817 (1977).

Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).

Carper v. Deland, 54 F.3d 613 (10th Cir. 1995).

Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987).

Chambers v. Riveland, 189 F.3d 472, 1999 WL

595366 (9th Cir. 1999, unpublished).
Charles v. Verhagen, 348 F.3d 610 (7th Cir.

2003).

City of Boerne v. Flores, 521 U.S. 507 (1997).

Colon v. Howard, 215 F.3d 227 (2d Cir. 2000).

Comer v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz.

2002). 

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).

Davenport v. DeRobertis, 653 F. Supp. 649 (N.D.

Ill. 1987). 

Davidson v. Scully, 914 F. Supp. 1011 (S.D.N.Y.

1996).

DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.

2001).

Dodson v. Reno, 958 F. Supp. 49 (D. Puerto Rico

1997).

Doe v. Delie, 257 F.3d 309 (3d Cir. 2001).

Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994). 

Estelle v. Gamble, 429 U.S. 97 (1976).

Farmer v. Brennan, 511 U.S. 825 (1994).

Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002).

Freeman v. Berge, 68 Fed. Appx. 738, 2003 WL

21462603 (7th Cir. 2003).

Gaudreault v. Municipality of Salem, 923 F.2d

203 (1st Cir. 1990).

Germunde v. Cook, 684 F. Supp. 255 (D. Utah

1988).

Giampetruzzi v. Malcom, 406 F. Supp. 836

(S.D.N.Y. 1975).

Gotcher v. Woods, 66 F.3d 1097 (9th Cir. 1995),

vacated on other grounds, 117 S. Ct. 1840

(1997).

Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1, 16 (1979).

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997).

Harris v. Fleming, 39 F.2d 1232 (7th Cir. 1988).

Helling v. McKinney, 509 U.S. 2475 (1993).

Hemphill v. Delo, 105 F.3d 391 (8th Cir. 1997).

Hewitt v. Helms, 459 U.S. 460 (1983).

Hill v. DeKalb Regional Youth Detention Center,

40 F.3d 1176 (11th Cir. 1994).

Hudson v. McMillian, 503 U.S. 1 (1992).

Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998).

Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir.

1989).

Jones-Bey v. Wright, 944 F. Supp. 723, 731 (N.D.

Ind. 1996).

Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D.

Wisc. 2001).

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal.

1966).

Klinger v. Department of Corrections, 107 F.3d

609 (8th Cir. 1997).

Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz.

2001).

LaFevers v. Saffle, 936 F.3d 1117 (10th Cir.

1991).

LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).

Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir.

2002).

Lewis v. Casey, 518 U.S. 343 (1996).

Luken v. Scott, 71 F.3d 192 (5th Cir. 1995).

82Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal.

1995).

Martinelli v. Dugger, 817 F.2d 1499 (11th Cir.

1987).

May v. Baldwin, 109 F.3d 557 (9th Cir. 1997).

McBride v. Deer, 240 F.3d 1287 (10th Cir. (Okla.)

2001).

McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y.

1998).

McCollum v. Miller, 695 F.2d 1044 (7th Cir.

1982).

McGuckin v. Smith, 974 F.2d 1050 (9th Cir.

1992).

Mitchell v. Maynard, 80 F.3d 1433 (10th Cir.

1996).

Nelson v. Collins, 455 F. Supp. 727 (M.D. Md.

1978).

Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997).

Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999).

Reed v. Falkner, 842 F.2d 960 (7th Cir. 1988).

Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997).

Sandin v. Conner, 515 U.S. 472 (1995). 

Sealey v. Geltner, 116 F.3d 47 (2d Cir. 1997).

Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wy.

2002).

Superintendent, Massachusetts Correctional

Institution, Walpole v. Hill, 472 U.S. 445, 454

(1985).

Taifa v. Bayh, 846 F. Supp. 723 (N.D. Ind. 1994).

Talley v. Hesse, 91 F.3d 1411 (10th Cir. 1996).

Taylor v. Barnett, 104 F. Supp. 2d 483 (E.D. Va.

2000).

Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001).

Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997). 

Toussaint v. McCarthy, 597 F. Supp. 1388 (D.C.

Cal. 1984).

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.

1986).

Toussaint v. McCarthy, 926 F.2d 800 (9th Cir.

1990).

Turner v. Safely, 482 U.S. 78 (1987). 

Vitek v. Jones, 445 U.S. 480 (1980).

Walters v. Edgar, 900 F. Supp. 197 (N.D. Ill.

1995).

Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).

Washington v. Harper, 494 U.S. 210 (1990).

Wilson v. Seiter, 501 U.S. 294 (1991).

Wolff v. McDonnell, 418 U.S. 539 (1974).

Wood v. Housewright, 900 F.2d 1332 (9th Cir.

1990).

Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal.

1976).

83

Table of Cases
85

Table of Authorities

Cohen, Fred. 1998. The Mentally Disordered

Inmate and the Law. Kingston, NJ: Civic

Research Institute.

Collins, William C. 1997. A Practical Guide to

Inmate Discipline, 2d ed. Kingston, NJ: Civic

Research Institute.

Grann, David. 2003. “The Brand.” The New

Yorker, February 16, p. 157.

Grassian, Stuart. 1983. “Psychopathological

Effects of Solitary Confinement.” American

Journal of Psychiatry 140:1450–1454.

Grassian, Stuart, and Friedman, Nancy. 1986.

“Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement.”

International Journal of Law and Psychiatry

8:49–75.

Haney, Craig, and Lynch, Mona. 1997. “Regulating Prisons of the Future: A Psychological

Analysis of Supermax and Solitary Confinement.”

NYU Review of Law and Social Change 23:477.

Table of Authorities
Human Rights Watch. 1997. Cold Storage,

Super-Maximum Security Confinement in Indiana. New York, NY: Human Rights Watch.

King, Roy D. 1999. “The Rise and Rise of

Supermax: An American Solution in Search of a

Problem.” Punishment and Society 1(2):163–184.

Kupers, Terry A. 1998. “The SHU Syndrome

and Community Mental Health.” Community

Psychiatrist 12(3), summer.

National Institute of Corrections (NIC). 1997.

Supermax Housing: A Survey of Current Practice.

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NIC. Special Issues in Corrections, March.

Riveland, Chase. 1999. Supermax Prisons:

Overview and General Considerations.

Washington, DC: U.S. Department of Justice,

National Institute of Corrections.

Stoner, John W. n.d. Analysis of mental health

services and treatment of mentally ill inmates at

Supermax Correctional Institution (SMCI),

Boscobel, Wisconsin. Unpublished document

submitted in litigation.

Stoner, John W. 2002. Management of Violent,

High Risk, and Supermax Offenders. Washington,

DC: U.S. Department of Justice, National

Institute of Corrections. Training Program.

Terrell, Steve. 2003. “Corrections Department

Settles Prison Lawsuit,” The New Mexican,

May 22.

86Supermax Prisons and the Constitution: LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT
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