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NY Federal Judge Deals Rare SHU Placement Defeat to BOP

Viktor A. Bout, a Russian international arms dealer ensnared in a DEA sting in 2008, extradited from Thailand and held in the Special Housing Unit (SHU) of the federal Metropolitan Correctional Center (MCC) in New York, won a court order compelling the Bureau of Prisons (BOP) to transfer him to general population.

U.S. District Court Judge Shira A. Scheindlin noted that Bout had been convicted on November 2, 2011 of conspiracy to kill United States nationals; kill officers and employees of the U.S.; acquire, transfer and use anti-aircraft missiles; and provide material support to a designated foreign terrorist organization – the Revolutionary Armed Forces of Colombia (FARC).

Bout’s attorney had argued that his long SHU confinement at MCC was “both punitive and unnecessary.” According to the court, “Bout is in solitary confinement residing in a one-man cell in which he eats, sleeps, and washes. He spends 23 hours a day in this cell and is taken out for one hour of exercise per day in a room only slightly larger than his cell. He is alone for his exercise period.... Other than visits with counsel, trips to court, a family visit once a week, or trips upstairs to access to electronic evidence ... he does not leave his cell.” Bout’s attorney also stated that the prolonged solitary confinement may have a serious adverse effect on Bout’s mental health.

In a hearing ordered by the judge, the BOP, through the warden of the MCC, alleged that Bout had “access to mass amounts of money and weapons and to a large criminal organization.” Further, he was “reported [to have] a leadership role [which] can result in undue influence among other inmates,” and his case had “received broad publicity, which could place [him] at risk and abuse by other inmates.”

The district court observed that the standard for determining whether prison regulations impinge on a convicted prisoner’s constitutional rights is set forth in Turner v. Safley, 482 U.S. 78 (1987). A court must determine whether the regulation is “reasonably related” to legitimate penological objectives, or is instead an “exaggerated response” to those concerns. The four-part Turner test includes: (1) whether there is a “valid, rational connection” between the regulation and the government justification for it; (2) whether there are alternative means for the prisoner to exercise the right at issue; (3) the impact that the desired accommodation will have on guards, other inmates and prison resources; and (4) the absence of “ready alternatives.”

Judge Scheindlin further noted that although the U.S. Supreme Court has stated that courts are “ill-equipped to deal with the increasingly urgent problems of prison administration and reform,” it has also held that “prison walls do not form a barrier separating prison[ers] ... from the protections of the Constitution ... [and] when a prison ... practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”

Applying the Turner test, the district court concluded there was “no ‘valid, rational connection’ between the BOP’s decision to keep Bout in the SHU for more than fourteen months and any ‘legitimate governmental interests put forward to justify it.’”

In a February 24, 2012 ruling, the court therefore granted Bout’s request to be transferred from the SHU to the general population at MCC. See: United States v. Bout, 860 F.Supp.2d 303 (S.D.N.Y. 2012).

Less than two months later, however, Bout was sentenced to 25 years in federal prison; he was subsequently transferred to USP Marion in June 2012.

Additional sources: BBC,

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Related legal case

United States v. Bout