The Federal Bureau of Prisons today invited the public to comment on a proposed rule[pdf] on units that house prisoners suspected of low-level links to terrorism. The Bureau refused to seek public comment for years, all the while continuing to operate, and indeed expanding, the new units—dubbed “Communication Management Units” or “CMUs” because of the severe limits they place on prisoners’ ability to communicate with the outside world. The Bureau changed course only after civil liberties advocates brought suit under a law that requires the government to seek public comment when making major changes in policy.
Seeking public comment, however belatedly, is a step in the right direction. But the proposed rule itself still suffers from all of the flaws of the existing regime, and is in some respects even more problematic. The government must now demonstrate that it is serious about the public comment process by working to improve the proposed rule in response to comments it is sure to receive.
First, the final rule should ensure that the government places the right people in CMUs. The Bureau locked a prisoner away in one such unit even after his sentencing judge, a Reagan appointee, described him as “not a terrorist.” The judge continued that the prisoner had “engaged in model citizenry,” posed no threat of recidivism, and had “demonstrate[ed] his dedication to his four-year-old son” – a son with whom he now has almost no communication due to his placement in a CMU.
The rule, as currently drafted, threatens to send other prisoners to CMUs without good reason. The new rule contains vague and extremely broad standards, allowing the government to place a prisoner in a CMU for any of five reasons, including where the government claims there is “any” evidence of “potential” threat to prison order caused by a prisoner’s communications.
The proposed rule also lacks adequate procedures to prevent unnecessarily placing prisoners in the units. Under the proposal, prisoners who want to challenge their designation to a CMU can do so only by filling out an administrative grievance, a written form. In contrast, federal prisoners placed in other types of restrictive units have a right to live hearings where they can call witnesses and present evidence in their defense. And in the past, the government has refused even to consider grievance forms not filed within 20 days of when a prisoner lands in a CMU, even though placement in the units is indefinite. Nothing in the proposed rule suggests that the government will change how it handles the forms.
The rule would also restrict communications more than necessary. The government’s proposal would permit CMU prisoners a single fifteen-minute telephone call and a single hour-long visit per month – even less phone and visitation time than CMU prisoners receive now, and far less than most prisoners in the federal system. There is no reason to think that existing restrictions have proven too permissive. Indeed, more telephone and visitation time would not pose a security risk because, as the proposal itself says, the government monitors the communications of CMU prisoners constantly. At most, monitoring more communications would cause a minor increase in administrative costs – and such costs would be well worth it. Cutting prisoners off from the outside world puts us all at risk. Prisoners who lose touch with their families and communities while in prison commit more crimes upon their release.
It is not too late to correct the flaws in the proposed rule. Members of the public can submit comments until June 7, and the government must review those comments before finalizing the rule. The final rule should reject restrictions that are unnecessary and counterproductive, and make sure that only the right prisoners end up in CMUs.