Ed Aro outside the Supermax prison near Florence, Colorado on May 16, 2014. (Photo by Matt Nager)
The highest-security prison in the nation goes by a few different names. Officially, it’s the United States Penitentiary, Administrative Maximum Facility, part of a sprawling, four-prison complex in Florence, Colo. Colloquially, it’s the “Supermax,” or “Alcatraz of the Rockies.” But to insiders, it’s simply the ADX.
Over the past three years Arnold & Porter’s Edwin “Ed” Aro has become an insider. Aro has spent more than 160 days at the ADX since August 2011, meeting more than 150 inmates—about a third of the facility’s 450-man capacity. “[Ed's] spent more time there than anyone who does not work there or live there,” says prisoners’ rights attorney Deborah Golden.
Golden, director of the D.C. Prisoners’ Rights Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, asked Arnold & Porter three years ago to look into allegations, made by several ADX prisoners in letters to her, that inmates with severe mental illness were going untreated.
What Aro and his colleagues have found inside the ADX has led to Arnold & Porter’s most hours-intensive pro bono effort in its 68-year history. Through June, more than 100 lawyers at the firm have dedicated a total of 14,000 hours to a proposed class action against the U.S. Bureau of Prisons. Says pro bono committee chair Philip Horton: “Cases like this are the heart of what law firms like ours need to do and are supposed to do: taking cases of unpopular clients who have been snubbed by everyone else.” He calls it “representing the damned and the despised.”
The suit claims that a lack of adequate mental health services at the ADX amounts to cruel and unusual punishment under the Eighth Amendment. Internal policies at the Bureau of Prisons (BOP), which oversees the ADX, prohibit sending prisoners with severe mental illnesses there, Aro and his colleagues say. Although the two sides differ on what should qualify as a severe mental illness, the plaintiffs contend that the list should at least include psychotic and severe mood disorders, as well as certain “severely disabling” anxiety disorders, personality disorders and intellectual disabilities. Despite BOP policies, the plaintiffs contend, the ADX has become a dumping ground for prisoners who were behavioral problems at other federal prisons. The suit is not seeking damages, but rather an injunction requiring the BOP to provide mental health services. With settlement negotiations underway with the government, some of Arnold & Porter’s clients have already been moved to facilities better equipped to diagnose and treat them, and the BOP is changing the way it defines and deals with severe mental illness. “You can’t fix the problems [at the ADX] without really taking a holistic view of what’s going on in the entire bureau,” Golden says.
Arnold & Porter’s suit comes at a time of increased attention to prison conditions generally. Some challenges, like the ADX case, target the effect that isolation, which is the norm at the ADX, has on the mentally ill. Others focus more broadly on solitary confinement policies and inmate health care. Says Golden: “It feels like we as a country are at a point where we are realizing that our approach to incarceration and crime reduction has failed, and it’s an economic and social disaster.”
The list of notable prisoners at the ADX gives an idea of the kind of criminals it was built to house: Unabomber Ted Kaczynski, Oklahoma City bombing accomplice Terry Nichols, 9/11 coconspirator Zacarias Moussaoui and five of the seven men convicted in the 1993 bombing of the World Trade Center. Most outsiders associate the ADX with those types of inmates—people who have committed the most heinous crimes and are the greatest threats to society. But it also houses others who have committed lesser crimes and have found their way to the ADX because of behavioral problems, escape attempts or crimes committed at lower-security facilities.
It was prisoners in the latter category who wrote to Golden at the D.C. Prisoners’ Rights Project about the conditions for mentally ill inmates at the ADX. Since felons convicted in Washington, D.C., serve their time in federal rather than state facilities, Golden’s organization acts as a watchdog for the entire Bureau of Prisons. The D.C. Prisoners’ Rights Project has long-standing ties to many large Washington firms but asked Arnold & Porter to help with the ADX case because its Denver office is a two-hour drive away from the prison. “We got incredibly lucky that Ed Aro is a partner there and has fallen in love with this case,” Golden says.
Aro, a trial lawyer who handles everything from high-dollar divorces to intellectual property disputes, joined Arnold & Porter in 2010 from Hogan & Hartson (now Hogan Lovells). Despite his wide-ranging practice, Aro says, “if you look up prison litigation expert in the dictionary, I’m the opposite of what you would find there.”
That’s changing, though. After Golden reached out in spring 2011, Aro and some colleagues spent time getting familiar with the prison litigation landscape and BOP policies. They quickly learned that the staff included only two mental health professionals, both psychologists, to monitor the mental health of about 450 men. “Frankly, the failings of the BOP here are sending people there who weren’t supposed to be there in the first place,” Aro says.
Former Arnold & Porter special counsel Robert Taylor, who has dedicated nearly 1,500 hours to the case, describes the ADX as “something out of a Kafka novel.” Taylor left the firm to set up his own IP consulting shop in San Francisco in April, but continues to work on the case. He’s made three trips to the ADX and describes walls and passageways that come together at odd angles in ways meant to disorient anyone plotting to escape. Visitors must have preapproval from the warden, have their hand stamped with a code word with invisible ink upon entry, and have their picture taken. Guards check the hand stamp and picture as they exit. Guests arrive at 8 a.m. and must leave by 3 p.m. “Even that seven-hour period sucks life out of you in a way that’s really hard to describe,” Aro says. “By five o’clock, you’re ready to go to bed.”
It’s all intentionally designed to warehouse the highest security risks in the federal prison population. When Aro went to the ADX for his first interviews in August 2011, he expected to find a handful of mentally ill prisoners alongside the prison’s more notorious residents. “What surprised everybody was, once we got into it, it wasn’t two or three or five guys who had these issues. It was dozens and dozens and dozens.” Aro says. The ADX had become a final destination for inmates who had behavior problems at other federal facilities—problems that in many cases stemmed from mental illness, he says. (Aro estimates that when he first visited the prison, about a quarter of its 430 inmates at the time were seriously mentally ill.)
“There are a lot of infamous folks at the ADX,” Golden says. “But there are also lots of anonymous nobodies who have really been failed by every system they’ve been a part of since the day they were born.”
In June 2012, a little less than a year after Aro’s first visit to the ADX, Arnold & Porter and the Washington Lawyers’ Committee filed a 107-page complaint on behalf of a proposed class of all ADX prisoners and a subclass of mentally ill inmates. (A selection of annotated letters from current and former ADX prisoners is available here.) In the complaint, they claim the BOP had shown deliberate indifference to the proper diagnosis and treatment of serious mental illness of prisoners, with horrible consequences. In one passage, the lawyers wrote:
Many prisoners at ADX interminably wail, scream and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, sharpened chicken bones, writing utensils and whatever other objects they can obtain. A number swallow razor blades, nail clippers, parts of radios and televisions, broken glass and other dangerous objects. … Still others spread feces and other human waste and body fluids throughout their cells, throw it at the correctional staff and otherwise create health hazards at ADX. Suicide attempts are common; many have been successful.
A month prior to filing the class action, the firm alone filed a wrongful death claim on behalf of the family of Jose Martin Vega, an ADX inmate convincted of racketeering and violent drug offenses who killed himself in May 2010. The suit alleges that Vega, who had been diagnosed with paranoid schizophrenia, was housed at the ADX in violation of the BOP’s policy. He then filed a pro se suit alleging physical and sexual abuse by officials and guards at the ADX. After the suit was dismissed in December 2008, Arnold & Porter’s suit says, Vega’s mental health deteriorated, and he was held in restraints for days on end. The firm is handling that suit, which is seeking damages for Vega’s estate, on a contingency basis. Any potential firm proceeds from the suit will benefit Arnold & Porter’s charitable foundation.
Beyond Vega’s story, which is featured in both complaints, the class action filing details the stories of inmates that Aro and his team met. One such inmate, Herbert Perkins, who is serving a life sentence for armed robbery, has battled major depression since adolescence. As a teenager, he listened on the phone as his father committed suicide by shooting himself. According to the complaint, Perkins received medication regularly before his transfer to ADX in 2008. But after a month with no medication at the ADX, Perkins used a razor provided in a grooming kit to sever a blood vessel in his neck. After being taken to a hospital for emergency surgery, Perkins was returned to the same ADX cell, where his blood was still clotted on the floor. (Perkins was not given antidepressants after the suicide attempt, but the suit says he was briefly given Zoloft after a second attempt, and then prescribed Prozac and Sinequan in late 2011 or early 2012.)
“The shock of going back in that cell with all that blood bothers me today,” Perkins wrote in a letter in response to questions from The American Lawyer. What’s more, the razor that Perkins had used hadn’t been removed from the cell. Perkins attempted to kill himself again. “I told myself when I first [met] Ed that I would not let these people get away with what they did to me,” he writes.
Three months after the class action was filed, lawyers from the U.S. attorney’s office in Denver moved to have it dismissed. They argued that the allegations were based on outdated diagnoses and that the plaintiffs failed to show that the BOP and its officials acted with the deliberate indifference required to hold them liable for violating the Eighth Amendment. Denver U.S. District Judge Richard Matsch denied the government’s motion from the bench the same day it was argued. Aro and company filed their motion for class certification in December 2013, but all proceedings except written discovery have been stayed to let the parties engage in settlement negotiations.
A settlement isn’t guaranteed, but conditions are already changing at the ADX. Around the time the motion to dismiss was argued in April 2013, the BOP changed its policy to allow inmates in ADX’s solitary units to be treated with psychotropic drugs. The BOP issued policy guidelines in May that broadened its definition of severe mental illness and reaffirmed the presumption that people with those illnesses should not end up at the ADX. The language of those guidelines was negotiated with the ADX plaintiffs, according to Aro and Golden. A BOP spokeswoman said the bureau does not comment on pending litigation.
At press time Aro was still receiving at least a couple of letters a day from prisoners at the ADX, and some days as many as eight. He and his colleagues at Arnold & Porter were still meeting with additional inmates as of May and are convinced that there are others who would benefit from mental health screening and treatment. “I’ve never met a collection of humanity like the folks at the ADX,” Aro says. He estimates that 75 or 80 of the 405 inmates at the facility now may be seriously mentally ill.
With the suit pending, some of Aro’s clients, including Perkins, have been transferred to other facilities better suited to diagnose and treat them. At press time Perkins was part of an experimental high-security mental health unit at the United States Penitentiary in Atlanta that opened after the suit was filed. The Atlanta unit is believed to be the first of its kind. “This program I’m in now is alright,” writes Perkins. Such things as “basic living conditions” still need to be addressed, he writes, but the psychologists working with him are “real good,” adding, “It’s a start for the BOP.”