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ENOUGH OUT OF YOU, BUB

In a precedent-setting decision handed down last Friday, the D.C. Circuit Court of Appeals held that BOP placement of inmates in  Communica-tions Management Units (CMUs) implicates their due process rights.

Three inmates with terrorism-related convictions sued the BOP for constitutional violations arising from their serving years in BOP  CMUs. While the Circuit found the BOP officials named in the damages suit had qualified immunity in this case, its decision breaks new ground in application of the 1st and 5th Amendment to prison conditions.

About a decade ago, the BOP opened two CMUs at Terre Haute, Indiana, and Marion, Illinois.  CMUs are described by the BOP as housing “inmates who, due to their current offense, conduct, or other verified information require increased monitoring of communications with persons in the community to ensure the safe, secure, and orderly running of BOP facilities and to protect the public.”

An inmate can be designated to a CMU for several reasons, including a terrorism conviction, a propensity for using communication channels to further illegal activity outside the prison or to contact victims, abuse of approved communication methods, or a potential threat to prison facilities or the public as a result of unmonitored communications. An inmate gets sent to a CMU after a BOP review concludes “designation . . . is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public.”

CMU inmates have limited and less private communications compared to general population inmates. All visits other than from lawyers are “non-contact,” meaning a glass wall separates the inmate and visitor and communication takes place with a microphone. The visits must be conducted in English, live-monitored, and recorded by BOP. CMU inmates are limited in phone calls and email privileges, and receive enhanced mail screening. But for those limitations, housing unit life is about the same as for the general population.

The Court found it significant that CMU placement is exercised selectively and its “duration is indefinite and could be permanent; the deprivations — while not extreme — necessarily increase in severity over time… Inmates housed in CMUs… may spend years denied contact with their loved ones and with diminished ability to communicate with them. The harms of these deprivations are heightened over time, as children grow older and relationships with the outside become more difficult to maintain.”

The Circuit also seemed a bit concerned that CMU treatment is “viewed as an unusual designation reserved primarily for Muslim individuals convicted of terrorism-related offenses—giving rise to a stigma analogous to sex-offender classification.” Nevertheless, the Court concluded that unlike the stigma of sex offender status, for example, “CMU designation is not based on any formal status as a ‘terrorist’ and not every CMU inmate is associated with terrorist activities. Additionally, CMU designation has no bearing on the length of an inmate’s sentence. Thus, we do not find stigma to be relevant in this context.”

The BOP argued that the Prison Litigation Reform Act blocked any suit, because the inmates could allege no physical harm. The Court disagreed, holding that the PLRA only prohibited suing for mental or emotional damages absent the presence of physical damages, too. Here, the Court said, the suit alleged constitutional violations, and physical damages did not have to be pled. The Court said, “we find it hard to believe that Congress intended to afford virtual immunity to prison officials even when they commit blatant constitutional violations, as long as no physical blow is dealt. It is especially difficult to see how violations of inmates’ First Amendment rights could ever be vindicated, given the unlikelihood of physical harm in that context. Against that backdrop, and a legislative record indicating an intention to still allow awards for meritorious claims, we believe our reading of Section 1997e(e) best aligns with the purposes of the PLRA.”

The BOP officials were entitled to qualified immunity, the Court said, because the constitutional rights they violated were not so “clearly established” that they would have known of them. Even if that is the case, they’re certainly on notice after this decision.

Aref v. Lynch, Case No. 15-5154 (D.C.Cir.  Aug. 19, 2016)