Thomas Silverstein: Thirty years of solitary not "cruel and unusual," judges insist

After more than thirty years of solitary confinement -- including a quarter-century of good behavior, during which he committed no disciplinary infractions -- convicted killer Thomas Silverstein still poses too great a threat to other inmates, staff or himself to be allowed to circulate in the general prison population, according to a three-judge panel representing the U.S. Court of Appeals for the Tenth Circuit. Three decades of isolation, including the past nine years at the federal supermax penitentiary in Florence, have produced only "mild psychiatric symptoms" in Silverstein and don't amount to a violation of constitutional protections against cruel and unusual punishment, the panel ruled late last week.

The ruling affirms a 2011 decision by U.S. District Court Judge Philip Brimmer, who held that Silverstein's conditions of confinement at the U.S. Penitentiary Administrative Maximum, also known as ADX or the "Alcatraz of the Rockies," aren't "atypically extreme."

A former Aryan Brotherhood leader, Silverstein was convicted of four murders while in prison; one was later overturned. He's now serving three consecutive life sentences plus 45 years. The last killing, the 1983 slaying of a federal guard in the most secure unit of what was then the highest-security federal pen in the entire system, put him on a "no human contact" status that lasted for decades. For close to seventeen years, he was housed in a specially designed, Hannibal-Lecter-like cell in the basement of Leavenworth where the lights were on 24 hours a day. In 2005, he was moved to a highly isolated range at ADX, as first reported in my feature "The Caged Life."

Since Silverstein first filed his lawsuit in 2007, with assistance from student lawyers at the University of Denver, he's been moved from a remote tier containing only two prisoners (Silverstein and 1993 World Trade Center bomber Ramzi Yousef) to D Unit, which is considered "general population" at ADX. Inmates are still in solitary confinement and have meals and shower in their cells, but they also have access to indoor and outdoor recreation and can shout to each other. That lessening in the general degree of Silverstein's isolation seems to have been one factor in Brimmer's decision to dismiss the former bank robber's claims of enduring extreme deprivation and lack of any social contact.

The appeals panel opinion describes Silverstein as "resilient" and concludes that the negative impacts of his life in solitary -- including symptoms of insomnia, anxiety and some degree of cognitive impairment -- must be balanced against the concerns of prison officials that he could revert to violence if the restrictions were eased. Although Silverstein claims to no longer have any contact or involvement with prison gangs, the justices note that he once held one of the three highest positions in the AB and that "retirement from the Aryan Brotherhood does not exist." The ruling adds:
"Despite whether he has actually left the gang as he claims or perceives, the [Bureau of Prisons] has provided its well-grounded belief, based on expert evidence, that a serious risk exists that Mr. Silverstein may be required, for his own preservation, to resume his role, either as a leader or murderer, or take some other violent course or otherwise risk his own death or serious injury. Moreover, even if Mr. Silverstein has somehow separated himself from the Aryan Brotherhood, in order for the BOP to protect him he must enter protective custody in which he would still be required to be separated from other inmates for his own protection."
But Silverstein has shown no interest in becoming a protective custody case -- or "checking in," as prisoners say. A website maintained by Silverstein's supporters denounces the BOP's security argument as "just legal maneuvers to keep him isolated."

But for now, at least, the appeals judges have the last word:

"Thirty years is indeed an extraordinary length of time to live in segregation, under any conditions...[but] we cannot look at those thirty years alone without considering the reasons for both his confinement and the continuation of his confinement in such isolation. Up until 1988, Mr. Silverstein committed at least three brutal murders, was implicated in two others, assaulted three staff members, threatened a staff member, made an escape attempt by posing as a United States Marshal, and possessed weapons, including two hacksaw blades, handcuff keys, and two lock picks. Indeed, with respect to at least one of his murders, the Seventh Circuit stated his appeal afforded 'a horrifying glimpse of the sordid and lethal world of modern prison gangs.' Even the Supreme Court has cited Mr. Silverstein's prior murder cases three times as an example of the type of brutal prison murders perpetrated by its gang members."

Here's the complete opinion.

Thomas Silverstein Ruling

More from our Follow That Story archive circa October 2011: "Thomas Silverstein: Judge rules conditions at supermax not 'extreme.'"

KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast