Mostly, for now, the feds are content to take cover behind mountains of legal precedent which make it virtually impossible for these sorts of cases ever to succeed. In the government's view, prisoners who allege "inadequate" medical "treatment" must show that officials "acted with "criminal recklessness," in a manner which inflicts punishment. And from a recent Supreme Court case, the feds cite this language: "An official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under out cases be condemned as the infliction of punishment."
It's little wonder then that the plaintiffs' lawyers, experienced civil rights attorneys affiliated with prominent private and public-interest firms, would express this level of frustration in their final brief:
It is conceivable, for example, that Warden Berkebile, or BOP Director Samuels, may not know specifically that Plaintiff Cunningham suffers from a serious mental illness variously diagnosed as Paranoid Schizophrenia, Psychotic Disorder NOS and Personality Disorder NOS; that Mr. Cunningham was given prescriptions for the antipsychotic medication Risperdal and the antidepressant medication Prozac before coming to ADX; or that Mr. Cunningham was placed in the ADX Control Unit in 2001 where he was and continues to be denied appropriate medication and meaningful mental health treatment.
But it is preposterous for the Defendants to ask this Court to declare -- essentially as a matter of law -- that it is not even plausible that Warden Berkebile and Director Samuels are aware that ADX is filled with mentally ill prisoners in need of treatment and medication that is denied to them as a result of, inter alia, (1) a BOP rule prohibiting the administration of psychotropic drugs to prisoners assigned to the Control Unit; (2) BOP decisions allocating only two psychologists at ADX for approximately 450 prisoners; (3) the general practices of withholding psychotropic medication and mental health treatment for deeply disturbed prisoners throughout the institution; and (4) countless lawsuits filed by individual prisoners seeking relief from these nightmarish practices.
As you can see in the Colorado case, and as most every other prisoner rights case suggests, virtually the entire apparatus of law and government is set against these prisoners. Congress has written tough laws which make it terribly hard for inmates to hold their jailors accountable, even where the inmates have viable claims to litigate. The courts, meanwhile, including the United States Supreme Court, have interpreted those protective laws broadly, to further insulate prison officials not just from liability but from any meaningful accountability.
Which brings us to Judge Matsch. He was appointed to the federal bench by Richard Nixon in 1974 and sits today in senior status. He is fiercely independent as a matter of ideology, congenitally skeptical of dubious arguments, and an equal-opportunity terrorizer of under-prepared lawyers. It was Judge Matsch who told the Ku Klux Klan 20 years ago that its representatives could speak at the State Capitol in Denver on Martin Luther King Day. It was Judge Matsch who brokered the school busing deal between whites and minority parents.
And it was Judge Matsch who stared down Timothy McVeigh and Terry Nichols in 1997 when the bombers came to his courtroom to fight the charges against them. It was Judge Matsch whose courageous rulings on evidence and voir direafforded Nichols a fair trial -- resulting in a life sentence rather than the death penalty. It was Judge Matsch who refused to allow the McVeigh case to become the circus the O.J. Simpson case had become just two years earlier. Back then, I labeled the judge the "Anti-Ito," and it's still an apt description.
The prisoners at ADX-Florence may not prevail on the merits of their case. They may not even get a chance to have their lawyers depose prison officials. But no matter what happens, they will not be able to say that they weren't able to get their cause before an honest judge. If there is a federal jurist in America who has the integrity and fortitude to stand up to the Bureau of Prisons; if there is a man on the bench who has the courage to hold these bureaucrats accountable for their odious conduct; if there is a judge who will order these officials to be sworn to testify, it's this judge. His ruling is expected within the next few months.
This piece is part of The Atlantic's continuing series Supermax: An American Gulag.