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Tenth Circuit Misses Chance to Limit Long-Term Solitary Confinement

Tenth Circuit Misses Chance to Limit Long-Term Solitary Confinement

by Derek Gilna

The Tenth Circuit Court of Appeals has upheld a prisoner’s more than three-decades-long stint in solitary confinement, sidestepping an opportunity to meaningfully address the appropriateness of such long-term isolation.

Thomas Silverstein, 62, has been held in solitary confinement in the federal prison system for 31 years, and is currently housed at ADX Florence in Colorado. He was sentenced to three consecutive life sentences plus forty-five years for three murder convictions, including fatally stabbing prison guard Merle Clutts at USP Marion in October 1983. He had previously killed rival gang members while incarcerated, and was implicated in other murders.

Silverstein filed suit in federal district court in Colorado in 2007, challenging his prolonged placement in solitary confinement based on the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court granted summary judgment to the defendants.

In a May 22, 2014 unpublished opinion, the Court of Appeals focused on Silverstein’s past record of extreme violence. “Irrespective of the length of his confinement, Mr. Silverstein’s history with regard to both his violent conduct and leadership in the Aryan Brotherhood makes this a deeply atypical case and it is clear his segregated confinement is commensurate with ongoing prison security concerns,” the Court wrote.

However, as pointed out in an amicus brief filed by over 20 organizations and medical professionals, the issues raised in Silverstein’s lawsuit went far beyond the factual background of one prisoner, and called into question the very fabric of solitary confinement in the U.S. prison system. Doctors, psychologists and prison experts from around the nation provided substantive evidence of the deleterious effects that solitary confinement has on the human psyche. [See, e.g.: PLN, Oct. 2012, p.1].

In his complaint, Silverstein alleged “a violation of his Eighth Amendment right to be free from cruel and unusual punishment ... [claiming] the conditions and duration of his thirty-year confinement led to social and environmental sensory deprivation which caused him psychological harm and/or will cause a substantial risk of future psychological harm if continued.” He sought immediate termination of his administrative segregation and a court order transferring him to a less restrictive facility, or an opportunity to earn his way to less restrictive conditions of confinement.

Silverstein and the Bureau of Prisons (BOP) both agreed that he had received no disciplinary infractions since 1988, and a 2002 BOP report rated him as having a low risk of violence. Further, the BOP “did not dispute Mr. Silverstein’s expert evidence that individuals in solitary confinement have experienced symptoms of appetite and sleep disturbances, anxiety, panic, paranoia, hallucinations, self-mutilations, hypersensitivity, cognitive dysfunction, hopelessness, suicidal ideation, and withdrawal.”

However, the defendants countered that Silverstein’s life in solitary wasn’t that bad, emphasizing he has an outside window, 60 TV channels and access to educational courses, radio stations, phone calls and art supplies. They also argued that the statute of limitations had run out on his first 22 years of solitary confinement, and both the district and appellate courts agreed on that point.

Silverstein, in response, argued that he “1) eats alone and has no face-to-face interaction with others unfettered by glass, bars, chains, or other restraints; 2) has little variation in what he sees or experiences; 3) has minimal contact with other prisoners, staff, and visitors, lasting only a minute or so per day; and 4) lacks the opportunity for phone calls and visitation because the BOP’s prison policy precludes inmates from visiting with anyone they did not know prior to incarceration.”

The Tenth Circuit affirmed the district court’s summary judgment order. “This circuit has not definitively determined whether a lack of social contact and environmental stimulation rises to an Eighth Amendment violation,” the Court of Appeals wrote. “However, even if we determined it did, we cannot say his living conditions, including the amount of social contact and environmental stimuli Mr. Silverstein receives, are sufficiently serious so as to ‘deprive [him] of the minimal civilized measure of life’s necessities.’”

Additionally, according to the Court, “we cannot conclude [Silverstein’s] current mental symptoms of anxiety, depression, memory loss, and cognitive impairment are caused by the conditions of his current segregated confinement rather than the mere fact of his lengthy incarceration itself or some other factor, such as age.” The appellate court concluded that despite the decades-long duration of Silverstein’s placement in solitary confinement, that placement was justified by his violent history and did not rise to the level of an Eighth Amendment violation.

Silverstein was represented by the Civil Rights Clinic at the University of Denver Sturm College of Law. See: Silverstein v. Federal Bureau of Prisons, 559 Fed. Appx. 739 (10th Cir. 2014).

Although the Tenth Circuit declined to find long-term solitary confinement unconstitutional in this case, the use of solitary has been condemned internationally, with the United Nations Human Rights Council calling for a ban on the use of isolation except as a last resort – and then for as short a time as possible. On March 11, 2015, the UN’s special rapporteur on torture, Juan Mendez, criticized the U.S. for stalling his requests to visit prison facilities to inspect conditions, including the use of solitary confinement. One of the facilities that Mendez sought to visit was ADX Florence.

“It’s simply outrageous that it is taking a long time to provide access to U.S. places of detention,” said Jamil Dakwar, director of the ACLU’s Human Rights Program. “Overuse of solitary confinement in the United States is cruel and shameful but hiding or denying it just makes it worse.”

A number of states, such as New York, have recently curtailed the use of solitary confinement for prisoners with mental health conditions. Further, U.S. Attorney General Eric Holder has stated that the use of isolation for juvenile offenders could be extremely harmful, though he has remained silent on the practice of solitary confinement for adults.It is estimated that more than 80,000 prisoners are held in some form of solitary confinement in the United States.


Additional sources:, Reuters


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Related legal case

Silverstein v. Federal Bureau of Prisons