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Lawsuit Claiming CMUs Lack Due Process on Appeal to D.C. Circuit

The Bureau of Prisons (BOP) first instituted Communication Management Units (CMUs) in 2006 at the federal prison in Terre Haute, Indiana, then added another unit to the supermax in Marion, Illinois in 2008. CMUs were designed to limit and monitor prisoner communication on a punitive scale not previously seen in domestic American prisons. A lawsuit filed by the Center for Constitutional Rights (CCR), Aref v. Holder, argues that “due process [has] been denied at every step, from designation to review” in CMUs, according to CCR staff attorney Alexis Agathocleous.

The suit, filed in April 2010, resulted in the collection of hundreds of documents that showed the BOP never drafted (or published prior to implementation, as required by statute) criteria for placing prisoners in CMUs until 2009. In addition, federal prison officials have inconsistently applied those policies after that date. Discovery by the plaintiffs found that reasons given to prisoners designated to CMUs were incomplete, inaccurate and sometimes false. Some prisoners were incorrectly advised that they could earn their way out of CMU custody after 18 months of good behavior.

Many prisoners’ rights advocates have long felt that CMUs grew out of the federal government’s reaction to the 9-11 terrorist attacks, when scores of Muslims were arrested and then confined in CMUs, where their communication was limited and monitored. Over 60 percent of CMU prisoners are Muslim despite the fact that only 6 percent of the federal prison population is Muslim.

“The CMUs impose harsh restrictions on prisoners, including a ban on even momentarily hugging their families. Meantime, the BOP has denied hundreds of prisoners, who are mostly Muslim, the opportunity to understand or rebut the rationale for their placement, or a meaningful review process to earn their way out,” Agathocleous noted.

Former CMU prisoner Avon Twitty, a plaintiff in the lawsuit, spoke out after he was released from prison. “I was told the reason I was moved to CMU was because of ‘recruitment and radicalization’ but wasn’t told anything else,” he said. “I tried to find out more about these allegations so I could challenge my designation, but to no avail. Without knowing what I had allegedly done to land in a CMU ... I was helpless to challenge those allegations and had no hope of being transferred out. This lawsuit is my first opportunity to get to the bottom of my placement in a harsh, restrictive, and secretive prison unit.”

The BOP documents related to CMUs were finally made public after a motion by CCR attorneys dissolved a protective order that had prevented their release.

The district court dismissed some of the claims in the lawsuit in 2011. [See: PLN, Oct. 2011, p.20]. The court then granted summary judgment to the BOP in March 2015; the plaintiffs appealed, and oral arguments were held before the D.C. Circuit Court on March 15, 2016. The appeal remains pending. See: Aref v. Holder, U.S.D.C. (D. DC), Case No. 1:10-cv-00539-BJR.

Sources: www.ccrjustice.org, NPR

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