Procedures for Holding Men Under Strict Communications Restrictions Violate Due Process, Appeal Says

April 7, 2021, Washington, D.C. – Today, lawyers for men who had been imprisoned in secretive federal Bureau of Prisons (BOP) “Communication Management Units” (CMUs) asked the D.C. Court of Appeals to rule that the BOP violated due process. The appeal filed today argues that the BOP has failed to provide constitutionally adequate procedures for placement and retention of people in CMUs for long durations, a due process violation that has had a disproportionate impact on incarcerated Muslim men. Sixty percent of people incarcerated at CMUs are Muslim, though Muslims comprise only six percent of the federal prisoner population.

“My five children grew up while I was in the CMU. Not being able to talk with themregularly, or hug them and my wife, siblings and parents, during the five years I wasin a CMU was a torture I will never recover from,” said plaintiff Kifah Jayyousi.

People held in CMUs live, work, and participate in programs separately from all other people imprisoned by the BOP, and their communication with the outside world is severely limited, and strictly monitored, as compared to the communication of those held in non-CMU facilities. Because of how long many prisoners are subjected to these strict conditions in CMUs and because of how unusual CMU placement is--only a small fraction of those deemed by the BOP to be eligible for CMU placement are ever actually housed there--the appellate court previously held that prisoners have a liberty interest in avoiding placement in a CMU, thereby requiring constitutionally adequate procedures for placement and review. The district court, however, ruled that CMU placement and retention procedures were adequate. The appeal brief filed today vigorously disputes that ruling.

The BOP opened the first CMU before establishing written criteria for CMU placement or a process for designating people to the unit. Not until years later did the BOP codify a policy for CMU designation, and, even then, the policy lacked critical details and remained rife with problems uncovered in government documents released through discovery in the case. The appellate brief filed today details many constitutional failings in the process used to designate men to a CMU. 

People designated to a CMU are not told all the reasons for their placement; in many instances the reason for placement is not even documented. Prisoners are told they can challenge their designation to a CMU through the BOP’s “Administrative Remedy Program,” but that program has not resulted in a single prisoner being released from a CMU. From the time the CMUs opened, the men held there were told they would be reviewed frequently for release to a general population prison unit, but in reality the BOP did not have a review system in place for the first three years the units operated. Criteria for CMU placement has developed over time, changing to fit, after the fact, the type of prisoners who were being sent to the CMU, rather than vice versa, according to attorneys. The brief filed today argues that these policies and practices are woefully inadequate to meet constitutional standards of procedural due process.

“The Bureau of Prisons has been scrambling to fix their illegal and discriminatory CMUs since we first filed this lawsuit over ten years ago,” said Rachel Meeropol, a Center for Constitutional Rights senior attorney and lead counsel on the case. “It is too little, too late. People illegally placed in the CMU must finally get some relief.”

CMU regulations allow written correspondence to be limited to six double-sided pages per week, to one recipient only. Telephone calls may be limited to three 15-minute, pre-scheduled calls per month, with immediate family members only. And visits--which are strictly non-contact, with prisoners and their visitors, including their children, meeting in partitioned rooms separated by thick plexiglass, speaking over a telephone--may be limited to four hours per month. All communications are monitored by BOP staff, and calls and visits must be conducted in English unless arrangements are made for them to be live translated. By contrast, people imprisoned in non-CMU facilities interact with a large population of fellow prisoners, receive 300 minutes of social telephone calls per month, and can enjoy contact visits with family and friends for up to 49 hours per month.

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

To read today’s filing and for more information, visit the Center for Constitutional Rights’ case page.