Decision Reinstates Lawsuit Over Communications Management Units

August 19, 2016, Washington, D.C. – Today, the D.C. Court of Appeals reinstated a lawsuit challenging the Bureau of Prisons’ (BOP) secretive Communications Management Units, or CMUs. Documents uncovered in the lawsuit revealed that prisoners are routinely sent to the units without meaningful explanation or other procedural protections, but rather in retaliation for their protected speech and religious practice in prison. However, the district court ruled that prisoners had no “liberty interest” in avoiding placement in a CMU – and thus did not need to receive any process at all before being sent to one – despite the severe communications restrictions, stigma, and years-long segregation that come with such placement. Today’s ruling means the district court will now have to review the prisoners’ evidence of extensive due process violations.

“Today’s ruling ensures that a court will finally rule on the previously-secret information we disclosed through this lawsuit, documents that show a pattern of discrimination and retaliation in CMU placements made possible by systemic due process violations,” said Center for Constitutional Rights Senior Staff AttorneyRachel Meeropol. “The court’s decision makes clear that the BOP cannot simply send anyone they want to a CMU, for any reason, without explanation, for years on end.”

The district court will now have to consider CCR’s evidence that prisoners sent to CMUs have been denied due process. Government documents released through discovery show that, though the CMUs were quietly opened in Terre Haute, IN and Marion, IL in 2006 and 2008, respectively, the BOP did not draft criteria for designating prisoners to the facilities until 2009. The documents also reveal that different offices within the BOP, each of which plays a role in the designation process, have different understandings of those criteria.

Decision-makers are not required to, and do not, document their reasons for selecting a prisoner for CMU placement, making it effectively impossible for prisoners to challenge their designation. Other documents revealed that the reasons provided to CMU prisoners for their designation were incomplete, inaccurate, and sometimes even false. In addition, some documents showed that political speech was used as a factor in CMU designation. Discovery in the case also found that while prisoners were told they could earn their way out of a CMU by completing 18 months with clear conduct, there was in fact no avenue out of the CMU until years after it opened. Even now, prisoners who maintain clear conduct have their requests for transfer repeatedly denied without explanation.

Said Kifah Jayyousi, one of the plaintiffs in the case, “Today’s ruling proves that the years of abuse my family and I, along with many other Muslims, have suffered from the BOP was well worth the sacrifice. This decision finally restores our constitutional and human rights.”  

The district court ruled that prisoners do not have a liberty interest in avoiding placement in a CMU because the units are less restrictive than conditions in administrative segregation, where prisoners are routinely placed for investigation, or pending transfer. However, CMU segregation lasts for years, while a typical stay in administrative segregation is only a few weeks. The average stay in a CMU, with its unique communications restrictions, is 55 times as long. Prisoners in CMU are subjected to severe restrictions on all forms of communication with the outside, world, including a prohibition on all contact visits, and are segregated from other prisoners.

Because the overwhelming majority of prisoners placed in CMUs are Muslim or are sent there because of their religious or political speech, attorneys say that placement in a CMU is uniquely stigmatizing in a way that administrative segregation is not. Sixty percent of CMU prisoners are Muslim, though Muslims comprise only six percent of the federal prisoner population.

While the court ruled against the First Amendment retaliation claims in this instance, it made the significant decision for future cases that plaintiffs would be entitled to damages if such claims were upheld.

For more information about CCR’s federal lawsuit challenging the CMUs, visit the Aref, et al. v. Lynch, et al. case page or www.ccrjustice.org/cmu. Read today’s ruling here.

The law firm Weil Gotshal & Manges LLP and attorney Kenneth A. Kreuscher of the Portland Law Collective are co-counsel in the case.