Longest-Held Prisoner in Solitary Loses Challenge

(CN) - Decades of solitary confinement will continue for a man who killed a guard and three inmates in prison, the 10th Circuit ruled, finding him too dangerous to release into the general prison population.

Thomas Silverstein entered the prison system in 1978 on an armed robbery conviction and became a leader of the Aryan brotherhood. He killed one inmate at the federal prison in Leavenworth, Kan., and then committed two gang-related inmate murders in Marion, Ill

In 1983, Silverstein killed a Marion prison guard by stabbing him 29 times on the way from the shower to his cell. The inmate then found himself in a federal prison in Atlanta where florescent lights buzzed 24 hours a day. He was forbidden contact with other inmates, and, for the first year, had no visiting privileges, reading materials, radio or television.

Three years later, he was transferred to back Leavenworth, where he lived in a special 136-foot cell with the lights on 24 hours a day for 17 years. He again had no contact with other inmates, and minimal contact with staff.

In 2005, the Bureau of Prisons transferred Silverstein to the federal supermax prison in Florence, Colo., where he has a window, access to television and art supplies, and frequent contact with staff.

Currently the longest-held prisoner in solitary confinement, Silverstein filed an Eighth Amendment suit in 2009.

Claiming that his 30 years in solitary confinement have caused him psychological harm, Silverstein sought a "step-down" to less restrictive conditions of confinement.

He cited his age, the fact that he has committed no disciplinary infraction since 1988, and the fact that staff psychologists gave him a low risk of violence rating.

Deferring to the Bureau of Prisons, the 10th Circuit denied 62-year-old Silverstein's request Thursday.

"Not only has Mr. Silverstein established his credentials and legendary status with various gangs by committing multiple murders, but retirement from the Aryan Brotherhood does not exist, and if a member, like Mr. Silverstein, is asked to resume in his 'shot caller' role or otherwise instructed to perform a violent task or act, he must do so or likely be disciplined, either by beating or death, as part of the gang's code of conduct," Judge Wade Brorby wrote for a three-judge panel in Denver.

Even if he did manage to forsake his old gang affiliation, Silverstein would need to enter protective custody for his own protection, or face potential retribution from other gangs for his prior murders, the 54-page opinion states.

"As a reminder, Mr. Silverstein's violent conduct includes, but is not limited to, his strangling an inmate with a cord through cell bars, stabbing another inmate sixty-seven times, and stabbing a guard twenty-nine times while handcuffed, chained, and surrounded by two other guards," Brorby wrote. "With this history, what inmate, guard, or prison staff member would wish to be the first to encounter Mr. Silverstein if he is released from the restraint of glass barriers, handcuffs, or chains or, of more concern, released into the open prison population for any activity?" the court asked.

While Silverstein has been kept in solitary confinement "an extraordinary amount of time," his level of violence behind bars is also deeply atypical, the court found.

"The fact Mr. Silverstein eats alone, has no face-to-face interaction with others unfettered by glass, bars, chains, or other restraints, has only brief contact with other prisoners, corrections staff, and visitors, and has his visitations limited to those he knew before his incarceration, are not unduly harsh under the circumstances presented and in light of other cases in which the same or similar conditions have been considered and rejected as not violating a segregated inmate's constitutional rights," Brorby said.

Silverstein also cannot claim the Bureau of Prisons has been entirely deaf to his complaints, as his living conditions have steadily improved since his move to Colorado, where he has constant psychological care.

"We defer to the BOP's judgment that accommodating Mr. Silverstein's demands by releasing him into the open prison population or transferring him to a less secure facility would impair its ability to protect all who are inside the prison's walls, including Mr. Silverstein himself, other inmates, and BOP personnel," Brorby wrote, abbreviating Bureau of Prisons.

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