The 2.2 million people currently incarcerated in the United States exist in a state of perpetual vulnerability to unchecked administrative power
AT the same moment that my editor took the stage at the National Magazine Awards on February 1 to accept on my behalf the prize in the category of columns and opinion, I was locked down in “the hole” at the medium security federal prison at Three Rivers, Texas. I recently finished a four-year sentence there stemming from my work researching state-corporate surveillance partnerships with the activist group Anonymous, and officially, I was being held in administrative detention status for an “investigation” that had begun five days prior, an hour after I’d done a radio interview from a prison phone, which is not against the rules. Although my subsequent “refusal of an order” to meet in private with prison administrators resulted only in a sentence of two weeks’ restriction of privileges, one of the administrators in question simply told the guards to hold me in the Special Housing Unit regardless, entirely contrary to the law. Repeated lawyer calls to the prison were ignored. Nervous passing guards could tell me nothing about my fate, which itself no longer seemed tethered to any recognizable form of due process. Finally after two weeks, I was released without explanation or apology.
U.S. inmates quickly get used to the fact that the few rights remaining to them can be violated more or less with impunity. The 1996 Prison Litigation Reform Act–passed amid a flurry of hard-to-source anecdotes about prisoners suing prisons over absurd and minor grievances–prevents prisoners from being heard in the courts until they’ve first exhausted a given prison’s “administrative remedy” procedure. For inmates in the federal Bureau of Prisons system, that procedure entails filing a BP-8, waiting five days, filing a BP-9, waiting 20 days, then waiting another 20 days if the prison needs more time, sending off a BP-10 to the regional office, waiting 30 days, then waiting another 30 days if the regional office needs more time, then sending off a BP-11 to the national office, waiting 40 days, then waiting another 40 days if the national office needs more time, and then filing in court.
If that was how the process worked in reality, U.S. inmates could at least be said to have a reasonable, if cumbersome, avenue to the courts, as the Constitution requires. But it just so happens that I’ve recently completed a year-and-a-half-long experiment documenting how the system actually operates, having gradually mailed out copies of my filings and receipts as well as the government’s replies and making them all available online via my column at the Intercept.
When my access to the inmate e-mail service was cut off in early 2015, an hour after I’d used it to contact a journalist about wrongdoing within the Bureau of Prisons, I began the administrative remedy process by submitting a written complaint explaining why the move violated not only the bureau’s own stated policy but also potentially federal law. This set off a surreal chain of events in which the prison missed three of its own deadlines for response before finally accusing me of some unspecified “criminal activity.” I could appeal to the regional office, they added, in the event that I was not satisfied with their reply.
At the regional level, a BOP lawyer claimed that I’d missed a deadline, demanded that I get a written note from staff at a prison from which I’d been shipped months prior, required me to reduce my complaint to one single-sided page instead of two, and gave me a deadline for response, including mailing time, that happened to fall on the very next day. When I replied again with a smaller font so as to cram everything onto a single page and prove that the prison had violated its deadlines, not me, and point out that the Bureau of Prisons had given me less than 24 hours to do several inappropriate things and one impossible one, they demanded three extra copies of the note I’d included explaining all that. This time, they gave me a deadline of ten days prior to the day I received it. The administrative remedy procedure, enchanting in its intricacies, was now apparently complete: I would not be heard by a court. Those who argue that they were prevented by prison officials from completing the complaint process tend to find that many of these tricks–missing deadlines, demanding that complainants abide by impossible ones–don’t violate prison policy.
Congress could go a long way toward fixing this climate of due process deprivation by simply updating the original law to require prisons to give inmates the option of filing these grievances electronically, via the limited-use computers to which inmates now generally have access. This way, the complaint procedure automatically proceeds to the next level when deadlines pass. Although nothing would entirely eliminate the tendency of this criminal bureaucracy to do the sorts of things they have done throughout history, an electronic process would potentially end the practices through which prison staff routinely sabotage the complaint process by “losing” forms, logging them in weeks after receipt, or even not giving them out to begin with. The president, who has been so keen on signing executive orders, could implement this policy for federal prisons next week if he’d like, thereby largely disrupting a de facto policy which, given the involvement of high-level Bureau of Prisons officials in these sorts of practices, can only be regarded as an ongoing conspiracy to deprive 200,000 federal inmates of their right to seek redress in the courts.
The 2.2 million people currently incarcerated in the U.S. are almost unique in the Western world: They exist in a state of perpetual vulnerability to unchecked state power, and their physical isolation, combined with widespread failures by prisons in allowing press access (even to the limited extent officially permitted by their stated policies), means that the usual way of generating outrage over injustice–regular and in-depth media coverage–is rarely an option. The men and women this republic incarcerates and forgets need access to the processes by which basic human rights are realized, and then subsequently protected. The American citizenry needs to consider what it says about our society that those rights remain so difficult to establish to begin with.