Editor’s note: This story was originally published Aug. 7, 2009
Anthony Gay always fought back. Even in first grade he was quick with his fists, especially when kids mocked his temper or taunted him because he lived with foster parents.
When he came home bloody and bruised, a big mutt he called Diamond comforted him. His aunt, Shirley Gay, who raised her nephew in a tough Rock Island neighborhood, said she always feared that someday Gay’s anger would get him into serious trouble.
However, there was nothing in his juvenile record to suggest that Gay would end up where he is today — serving 99 years in solitary confinement at Illinois’ supermax prison, the Tamms Correctional Center — after an initial conviction for punching another youth and stealing his hat and a dollar bill. He received probation for that crime, but violated it and landed in prison at age 20 to serve seven years, with parole possible after 3 1/2.
Gay was sent to the maximum security Pontiac Correctional Center, where convictions in the nearby Livingston County Court for assaulting guards added decades to the quick-tempered inmate’s sentence, even though these crimes did not involve serious injury and often are not prosecuted at other prisons, a News-Democrat investigation found.
Gay spends 23 hours a day in a cell at Tamms, in the southern tip of Illinois, where he has been held for the last five years. He first was transferred to Tamms in 1998 and held for about a year before being returned to Pontiac.
To cope with the isolation at Tamms, he has regularly mutilated himself to the point that it required extensive suturing to close his wounds, sometimes without anesthetic, court records state.
The Tamms policy regarding “cutters” often meant time on a strap-down bed, a metal framework where an inmate lies spread-eagle, bound by his arms and legs with leather straps.
Gay has been strapped down for as long as 32 hours, according to court documents. A prison doctor has testified that mutilators are restrained this way for their own protection so they can’t cut themselves until the desire to mutilate passes.
For civil rights lawyers and prisoner advocates, cases like Gay’s raise the question: Does a lengthy sentence for a series of minor crimes served in solitary confinement under conditions that drive a person to self-torture amount to cruel and unusual punishment banned by the Constitution’s Eighth Amendment?
Civil rights attorneys say a lawsuit raising that question probably would not succeed. They say federal law and U.S. Supreme Court decisions have produced legal hurdles that make it all but impossible to bring many Eighth Amendment arguments. In particular, they cite the 1996 Prisoner Litigation Reform Act passed by Congress in response to a flood of inmate litigation, including frivolous lawsuits that made national headlines.
“The combined effect of the federal legislation and the Supreme Court’s pronouncements in the area of prisoner rights has been that courts have essentially left the field of regulating the treatment of prisoners in this country,” said attorney Locke Bowman, director of the McArthur Justice Center in Chicago.
“The consequence of this, intended or not, is that prison officials are essentially left to do as they please with respect to solitary confinement, strap-downs and the like,” he said. “If it became known that animals were treated in this fashion, there would be widespread public outrage.”
Citing the 1996 federal legislation, David Fahti, an attorney at the Washington, D.C., office of Humans Rights Watch, said, “There is one set of rules for everybody else in the country and a different and less favorable set of rules for prisoners.”
Fahti’s organization criticized the special rules for prisoner lawsuits in a 46-page report released in May. It cited a wide range of unfavorable rules for prisoners, including the difficulty of meeting much shorter deadlines for filing motions and a requirement that inmates first exhaust administrative remedies within the prison, even if they are unfair, complicated or vague.
Michael Randle, newly appointed director of the Illinois Department of Corrections, said the Tamms staff handles inmates in a firm but fair manner.
“The staff at Tamms do a very professional job with a particular population that is the most difficult to deal with in corrections,” he said.
U.S. District Court Judge David Herndon in East St. Louis said that the legal rights of inmates who bring lawsuits alleging civil rights violations are well-protected. But Herndon said that without a specific legal complaint, it is not the duty of a federal judge to question issues such as whether the effects of long-term solitary confinement are cruel and unusual.
“If there is some specific issue in the complaint, of course, we’re going to get into it,” he said.
Bowman said attorneys who represent inmates like those at Tamms should address cruel and unusual conditions through indirect or “peripheral” issues, such as alleging that prison officials fail to provide treatment for the seriously mentally ill or arguing that criteria used to transfer inmates to Tamms deny them due process.
Gay’s lawyers have filed such a lawsuit. It contends that placing their client on a strap-down bed amounted to a failure by prison officials to provide proper medical treatment, even if Gay caused his own injuries.
The Department of Corrections, in its legal response, said the strap-down bed was proper because it prevented Gay from injuring himself further.
Inmates who file what judges consider frivolous lawsuits can lose their right to a free, court-appointed lawyer and must pay hundreds of dollars in filing fees in small monthly increments, even though they are in solitary confinement with no means of making money.
It can take up to 10 years to resolve a case due to court delays, even when plaintiffs raise immediate issues, such as guards beating prisoners.
Chicago attorney Alan S. Mills filed suit on behalf of 36 Tamms inmates nearly 10 years ago. That lawsuit is scheduled for trial in November before U.S. District Court Judge G. Patrick Murphy in East St. Louis.
In the suit, Mills contends that his clients’ right to due process was violated by a secret and arbitrary system that transferred them from other prisons to Tamms and placed them in solitary confinement, where ordinary privileges like phone calls, access to basic education programs and religious services are banned. The initial complaint also stated that inmates were sent to Tamms in retaliation for filing lawsuits about prison conditions.
The Department of Corrections said in its response that the criteria for transferring an inmate to Tamms is based solely on disciplinary records and alleged gang involvement, according to court records.
‘Alice in Wonderland’
Many inmates at Tamms were transferred there from the maximum security Pontiac Correctional Center after they were prosecuted for what officials at other prisons, such as the maximum security Menard Correctional Center near Chester, often consider non-criminal harassment of guards. At other prisons, such incidents as throwing urine, feces and food at guards usually would mean a loss of privileges or other punishment, not usually a criminal conviction.
At Pontiac, prison officials don’t tolerate such actions. They prosecute offending inmates, who get extra years added to their sentences if they are convicted. The convictions mark these inmates as troublemakers, and many of them become prime candidates for the label “worst of the worst” and a transfer to Tamms.
That’s what happened to Gay.
A relatively small man at 5-foot-6 and 150 pounds, Gay claimed corrections officers at Pontiac repeatedly taunted him, knowing he has a hair-trigger temper. Before he was transferred for the second time to Tamms in 2004, he was convicted numerous times for aggravated assault against a guard, which added 92 years to his sentence under a state law that requires this time to be served at the end of the inmate’s original sentence.
A review of Gay’s record inside prison showed that 18 incidents involved throwing body wastes, pulling back on handcuffs or struggling with guards — none of which led to serious injury. These sentences combined pushed Gay’s parole date to 2093.
Livingston County State’s Attorney Tom Brown said that after several years of permanent lockdown at Pontiac in the late 1990s, violent crime against prison staff decreased.
“Most of everything has trickled off to stuff that’s relatively non-violent, usually throwing some sort of liquid on a guard,” he said.
Brown said that the non-violent harassment of guards is still prosecuted because prison staff “have the same right to be safe at work and free of crime as you or I when we go to work.”
But a former judge in Livingston County, where the Pontiac prison is located, criticized prosecutors for pressing charges every time Gay essentially resisted authority.
Referring to 10 incidents in a two-month span in which Gay eventually was convicted of “throwing liquids” on guards and received 35 additional years, Circuit Judge Charles H. Frank wrote to a fellow judge: “I would think a $2 piece of plastic draping would have prevented all of these. Apparently, no one out there understands that. ... Mr. Gay committed a minor theft. As a practical matter, he is now a lifer.”
In a recent telephone interview, Frank said Gay, who always acted as his own attorney, was articulate and once won an acquittal in Frank’s court during a trial on an aggravated assault charge.
Frank said he tried to work a deal with prosecutors to wrap up all pending charges in one reduced sentence, but Gay wouldn’t cooperate.
“He’d say, ‘Nope, I want to try them all,’” the former judge said.
Frank said prison guards who accompanied Gay didn’t like the idea that an inmate would so enjoy being in court, even though it was for prosecution of crimes against their own kind.
“It was kind of like Alice in Wonderland around there,” Frank said.
Metro-east inmates Michael E. Williams of Hartford and Wade Thomas of East St. Louis faced situations similar to Gay’s.
Williams originally was sentenced in 1994 in Madison County Court to two years for theft and was eligible for release after a year, but because of subsequent convictions for crimes committed in prison, including weapons violations at prisons other than Pontiac, he isn’t scheduled for parole until 2028. If released then, he will have served 34 years.
Thomas was sentenced in 1997 in St. Clair County Court to 12 years for vehicular hijacking where he was a passenger. He was 18 at the time. He could have been released after six years but because of several convictions for non-injury crimes while in prison, he isn’t scheduled for parole until at least 2014, when he will have served 17 years.
Not a judge’s place
Thomas, the filed suit in 2004 in federal court claiming that after mutilating himself, he was strapped down for 12 hours while naked and then left without clothes in a cold cell for days. He acted as his own attorney.
Thomas pressed his case for three years, using the same basic argument that is the basis for Gay’s lawsuit — prison indifference to medical needs after self-mutilation and retaliation for filing grievances. He eventually asked the court to drop the case, stating he felt he wouldn’t get a fair trial.
The prison’s physician, Dr. Marvin Powers, “Cleaned his wounds and gave him stitches, but without any anesthetic, causing unnecessary pain,” a federal judge’s summary stated.
An attorney for the Department of Corrections gave the same response as in similar lawsuits: The prison provided medical care and Thomas was strapped down to prevent him from further harming himself.
Herndon, the federal judge in East St. Louis, said inmates’ concerns, even in what might appear to be baseless complaints, are not ignored.
“We get all kinds of complaints from Tamms. ... Do I sit around and concern myself with the issues at Tamms? No. Not unless there is an issue before me in a case. It’s just not our place to go around and start driving to Tamms and say, ‘I’m here to make an inspection to see if you’re running your prison right.’”
Herndon said he and other federal judges are seeking ways to shorten the time it takes for a prisoner lawsuit to reach resolution.
In another case, Damir Green was sentenced for a drug charge in 1992 in Cook County to six years with parole possible after three. Like other Tamms inmates, he was convicted of crimes within the prison system that added considerable time to his sentence: 19 extra years in his case. He has been held in continuous solitary confinement since 1999.
In 2000, Green filed suit in federal court in East St. Louis alleging that his rights were violated after he struggled with another guard and was singled out for a digital search of his mouth and then his anal cavity by a guard using the same “dirty glove.” Green alleged that the purpose of the search was “humiliation.”
A lawyer for the Department of Corrections contended the guard’s digital search was proper because Green was suspected of having hidden a weapon in his body.
Green faced a difficult legal hurdle established years ago by the U.S. Supreme Court. It was not enough to prove that the guard searched him with a filthy glove. He must prove that he was seriously injured, and that the guard intended to violate his rights.
After a jury in federal court could not reach a decision, a judge ruled that the case should not go further because Green’s physical injuries were minimal.
Green also complained that he was left for 40 minutes in a locked holding cell with his legs shackled and his hands tightly bound behind him. To relieve his discomfort, Green “stepped through” his handcuffs so that they were in front and more comfortable, and this enraged a guard, which led to his harassment, according to Green’s lawsuit.
“This message, that they can do anything they want to you because you’re not sitting the right way, is just the tip of the iceberg with Tamms,” said Nadya Pittendrigh, a member of the Tamms Year 10 Committee, which has long pushed for reform at the supermax.
“It’s just a snowflake on the iceberg compared to indefinite isolation with absolutely no legal recourse or due process.”
His appeal to the 7th Circuit U.S. Court of Appeals in Chicago was denied two days after it arrived in the mail.
A $1.50 victory
Even when a Tamms inmate wins in the federal court system, collecting real damages is virtually impossible unless a serious, direct physical injury can be shown.
Alex Pearson, a murderer doing 45 years, was told he would be transferred out of Tamms in 2005 after doing eight years in the supermax. Pearson had successfully convinced officials he was no longer involved with the Gangster Disciples, a feared prison gang. This cleared him to get out of Tamms.
However, in the weeks before his transfer, Pearson said a prison guard supervisor told him he would have to become an informant against the gang at other prisons. Pearson said he objected that this would amount to a death sentence and refused. Two days before he was scheduled to ship out of Tamms, he was given a disciplinary ticket for “sexual misconduct,” which set his transfer back a year. Pearson said he was urinating and did not notice a female social worker who approached his cell.
Pearson, who acted as his own lawyer, sued on the basis that he was improperly held at Tamms for an extra year.
The Department of Corrections filed court documents stating that no inmate is disciplined except for violations of rules.
A jury in federal court in East St. Louis found in favor of Pearson, who argued that the real reason for the ticket was that the social worker had several times tried to persuade him to “rat out” his former gang colleagues right up until a few days before she made the complaint about him urinating in her presence.
The jury approved a “monetary award” of $1, plus $1.50 attorney’s fees. Pearson appealed to the Chicago federal appeals court seeking a larger award. His request was denied.
An insider’s account
Tamms is virtually closed to outsiders except for the strictly controlled visiting room. The Department of Corrections rejected the Belleville News-Democrat’s attempts to get a tour of the prison.
But complaints about life inside Tamms abound in a mountain of federal lawsuits.
One complaint described “an atmosphere of terror and brutality.” Another detailed how inmates, including the mentally ill, are punished by shutting off water for toilets and drinking, taking away personal possessions including clothing and restricting the diet to tasteless nutraloaf.
In each of these cases, the Department of Corrections responded that any measures taken were proper and part of the prison’s strict discipline policy.
One of the most vivid descriptions came from former Tamms inmate Jon Giles, who sometimes uses the name Mustafa Afrika.
Giles, who spent four years in Tamms before he was paroled last year, said heard what he believes were guards choking Anthony Gay after he had been strapped down. Giles took the unusual step of filing official grievances on behalf of Gay and another inmate he said was ignored for hours after cutting himself, even though he wrote messages for help in blood on his cell wall.
Giles produced copies of the signed and dated grievances, which were rejected by prison officials. He said that from a temporary cell next to the one that contained the strap-down bed that held Gay, he saw guards put on gloves and helmets and then order a nurse to leave the area. He said the guards entered Gay’s cell.
“I heard this muffled sound,” Giles said, “He got a gasp out and screamed my name, ‘Mustafa, they’re trying to kill me.’”