The supermax models emerged out of the prison violence of the 1970's and the early 1980's, when dozens of guards around the country, were murdered by prisoners. First, prison authorities developed procedures to minimize inmate-staff contact. Then they took to locking down entire prisons for indefinite periods, keeping inmates in their cells all day and closing down communal dining rooms and exercise yards. Eventually, they began to explore the idea of making the general prison population safer by creating entirely separate high-tech, supermax prisons in which the worst of the worst would be incarcerated in permanent lockdown conditions. In the late 1980's, several states and the federal government began constructing supermax units. Indeed, throughout the l990's, despite declines in crime, one state after another pumped tens of millions of dollars into building supermax prisons and supermax facilities within existing prisons-sections that are usually called secure housing units (SHU's). Defenders of supermaxes argue that their restrictions provide a way to establish control in what is inherently an extremely dangerous environment (Abramsky, 2002). Solitary confinement even for prolonged periods, is not unique to the United States. "Death-row prisoners in Japan, who numbered 107 in 2010, are held in strict solitary confinement in 50-square-foot cells from the time of their sentence until their execution -- on average six years, but in some cases more than 20 years and, in at least one reported case, 42 years. Political prisoners in Bolivia, Myanmar, Israel, Iran, Peru and Turkey, for example, may spend their entire sentence in solitary confinement. In Russia, prisoners sentenced to life imprisonment may be subjected to a "special regime" that includes strict solitary confinement, solitary "walking exercise" for up to 1-hour and 45 minutes daily, and two visits of up to four hours a year. In a number of European countries, including Italy, the Netherlands and the U.K., a small number of prisoners -- around 20 in the Netherlands and fewer than 50 in the U.K. -- considered to be the most dangerous and disruptive can be held in a regime of prolonged solitary confinement in small high-security units, with varying levels of restrictions on visits, telephone calls, access to programming and other privileges. In Scandinavia, pre-trial detainees are routinely held in solitary confinement for up to three months and at times indefinitely, with restricted access to visits, telephone privileges, correspondence and newspapers" (Shalev, 2011).

But although solitary confinement is used in most prisons all over the world, the scale and depth of its use in the United States, particularly in supermax prisons, is a unique phenomenon. Tens of thousands of prisoners, routinely and systematically are subjected to solitary confinement and additional deprivations for years and sometimes decades. The difference between U.S. And European practices is reflected in the attitudes of their individual judiciaries. While U.S. courts have articulated concern over solitary confinement, European courts have gone further. "In July 2010, the European Court of Human Rights issued an interim decision to halt the extradition of four men from the United Kingdom to the United States to face terrorism charges. The court considered that the stringency of conditions at ADX, the supermax prison where the men were likely to be held should they be convicted, and in particular the possibility that they would spend the rest of their lives under these conditions, raised "serious questions" about the compatibility of these prisons with Article 3 of the European Convention on Human Rights (ECHR), which prohibits the use of torture and inhuman or degrading treatment or punishment" (Shalev, 2011).

The costs associated with supermax facilities are not limited to incarceration costs. If these inmates have been abused, treated violently, and confined in dehumanizing conditions that threaten their mental health, then they may leave prison angry, dangerous, and far less capable of leading law-abiding lives than when they entered prison. It is probable that inmates who have spent prolonged periods in solitary confinement have a more difficult time adjusting to life outside of prison, especially given the potential for the development or exacerbation of psychological problems. Supermax inmates may be more likely than comparable inmates serving sentences in regular institutions to recidivate or to escalate their offending. Furthermore, the presence of psychological problems means that the release of these individuals into society poses additional burdens on communities trying to effectively deal with Eighth Amendment, which prohibits cruel and unusual punishment, requires that prisoners be afforded a minimum standard of living. Many argue that the living conditions and treatment provided to inmates in supermax facilities do not meet the standards of the Eighth Amendment. Federal court judges, however, have repeatedly ruled that prolonged segregation is cruel and unusual punishment only for the mentally ill. U.S. district courts maintain that although the conditions in these institutions are horrible, they are necessary for security reasons and therefore do not violate inmates' constitutional rights (Pizarro & Stenius, 2004).
Given that the courts have yet to rule supermax prisons as being in violation of the Eighth Amendment's prohibition against cruel and unusual punishment, the major issue to be looked at is the criteria for placing and keeping a prisoner in supermax. On one side the inmates argue that since the conditions are so much more damaging in supermax than in a general population prison, administrators ought to have a reason, like assaulting a guard or dealing drugs, before they can place a person. It is also thought that there ought to be objective standards that a prisoner can meet in order to work his way out of supermax and back into general population. On the other side, the government argues that the prisoners are chattel and prison administrators should have complete power to place any inmate wherever they want him, regardless of his actions and regardless of the conditions in the prison. Administrators persist that the criterion for placing and keeping an inmate in a supermax remain totally subjective and are based solely on their professional judgment as to the inmate's probable future performance (Rudolph, 2008).

Back in the 1990's a prisoner brought a case before the Supreme Court, claiming that his due process rights were violated as a consequence of his being sentenced to thirty days in Disciplinary Segregation (Sandin v. Conner.) the Court ruled that since it was just thirty days, where the conditions are the same as in any supermax, there was not enough evidence to associate Sandin's liberty interests. But the Supremes speculated that if Sandin had been living in such uncharacteristic circumstances for a long period of time he would have had a liberty interest in staying away from placement in such an isolation unit. And if that were the case, then the government had an compulsion to provide some form of due process before they could reasonably transfer and keep an inmate in long-term segregation. The court referred to this as Administrative Segregation (as) as opposed to Disciplinary Segregation (Rudolph, 2008).

Supermaxes are designed to house inmates under Administrative Segregation long-term but how much due process was due to inmates in supermax the court hasn't said. In 2006 a group of inmates housed in a supermax in Ohio were back before the Supreme Court to get an answer (Wilkinson v. Austin). The Court's ruled that inmates were not due much due process. Yes, prison administrators had to give inmates due process in order to place and keep them at Ohio's supermax, said the Court, but very minimal due process standards were sufficient. First, administrators had to give an inmate notification of his impending transfer to the supermax. Second, they had to give him the chance to contest his transfer to supermax. And third, while at supermax he had to be given a meaningful periodic review in order to keep him there. At the review, the inmate could again contest his placement in the supermax. The trouble is the Supreme Court left it up to the prison administrators to decide the criteria for placing and keeping an inmate in a supermax. Many feel that the meaningful periodic reviews every six months are nothing more than just formalities (Rudolph, 2008).

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