Judicial Notebook

Super-maximum security, or supermax, prisons provide extended control over the most disruptive, violent and dangerous inmates. The procedures for transferring inmates to supermax facilities vary by jurisdiction, although most purport to transfer only the most dangerous inmates. Transfer decisions are often made by a committee including a mental health professional, although the amount and type of predictive risk assessment can vary by jurisdiction.

Overall, confinement in a supermax prison can be for a lengthy, indefinite time period, and the conditions there are characterized by physical and psychological isolation, reduced environmental stimulation and reduced freedom of movement. Supermax inmates are in solitary confinement for at least 23 hours per day without contact with other inmates. When released from their cells, it is under the highest level of security: Inmates are often accompanied by several guards, placed in shackles and strip searched upon return to their cells. There are very few, if any, rehabilitative activities provided, and contact with families, friends and others in the outside world is extremely limited. Inmates in a supermax prison may be ineligible for parole until transferred back to regular prison.

Transfers and due process

During the upcoming term, the U.S. Supreme Court will hear a case determining what procedural safeguards are required to protect the liberty interests of inmates when prison officials are considering a transfer to a supermax facility from a regular prison. Wilkinson v. Austin (125 S.Ct. 686 [2004]) is a class action suit originally raised by supermax inmates alleging a violation of their procedural due process rights by the classification system that resulted in their transfer to the supermax facility.

The appellate court determined that the inmates had a due process liberty interest against being transferred because of the conditions of confinement in the supermax prison. The question presented to the Supreme Court is whether the transfer procedures are adequate safeguards of this interest and under what standards those procedures should be evaluated. The procedures at issue involved include providing notice to the inmate of the proceedings, allowing the inmate to present witnesses, the recording of the proceeding and the appeals process. The standards for determining the level of due process, as analyzed by the lower courts, range from a minimal amount of protection to a balancing test of the inmates' and the state's interests in determining the amount of protection.

Implications for psychology

Several issues relevant to psychology are raised by this case and cases like it. For example, there may be commonsense justice perceptions of the community concerning the appropriate balance of interests. A balancing test would weigh the state's interest in protecting the public and ensuring the public's perception of safety against the inmates' rights. However, public opinion is mixed on the issue of inmates' rights generally, and there are no surveys of public opinion on the specific issue of confinement in or transfer to supermax prisons. A careful examination of public perceptions of fairness in these situations might assist the courts in balancing the interests of the parties.

In addition, studies investigating the effects of the psychological and physical isolation in supermax prisons have found them to be detrimental to the mental health of the inmates, particularly to mentally ill inmates. Adverse effects include sleep disturbance, anxiety, paranoia, hallucinations and self-mutilation. This research supports that inmates do have a due process interest in avoiding transfer, as determined by the appellate court in this case.

Given that research indicates supermax confinement conditions may be particularly harmful, the Supreme Court may address whether transfer to a supermax facility automatically triggers a liberty interest in the future.

Finally, the transfer of mentally ill inmates and the assessment of inmate risk for transfer raise important psychological issues in the fairness of the transfer procedures being considered by the Supreme Court. First, procedures for risk assessment can vary widely. There appears to be no standard procedure for risk assessment in this context, raising questions about the reliability of these assessments, which in turn raise questions about fairness. Second, transfer procedures for the mentally ill can also vary widely; some jurisdictions exclude them, some include them for increased control and some have separate supermax facilities for them.

Research indicates that the mentally ill may be especially vulnerable to supermax conditions. If they are a special class of inmates in this process, they may require a higher level of procedural safeguards, which has implications for the Supreme Court's assessment of the procedures in the current case and others like it. Additional research would assist the legal and correctional systems in resolving all of these issues.

Judicial Notebook is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).