By Sara Burnett
The Denver Post
FLORENCE, Colo. — Between 1979 and 1982, Thomas Silverstein was accused of killing three inmates, and he was convicted in two of the cases.
But what happened Oct. 22, 1983, was different. This time he killed a guard, Merle Clutts, at the maximum-security prison in Marion, Ill.
Silverstein’s unprecedented record of prison violence called for an unprecedented response. With no federal death penalty in place at the time, the Bureau of Prisons placed Silverstein in indefinite solitary confinement.
Almost 28 years later, he remains there.
Now housed at the administrative maximum prison in Florence known as “Supermax,” Silverstein has been held in solitary longer than any other federal prisoner in the United States.
In a declaration filed as part of a civil-rights lawsuit, Silverstein, 59, has asked a judge to lessen his isolation, noting he has spent almost half his life in solitary and has had a spotless conduct record for more than two decades.
The 64-page document — one of the most thorough public accountings to date of Silverstein’s life in isolation — details conditions in each prison where he has done time and his remorse about killing Clutts. It also chronicles his repeated but futile attempts to learn what, if anything, he could do to persuade prison officials to let him out of solitary so he could interact with other inmates and win back privileges, such as a prison job.
The case, filed in U.S. District Court in Denver on Silverstein’s behalf by a team of lawyers from the University of Denver, has reignited the debate over whether prolonged isolation violates the U.S. Constitution’s 8th Amendment prohibition of cruel and unusual punishment.
Federal prosecutors argue that Silverstein’s confinement has been appropriate considering the danger he poses to prison officials, fellow inmates and the public.
They say Silverstein is a high-ranking member of the violent prison gang Aryan Brotherhood who has caused a prison riot, has committed other assaults on guards and continues to “call shots” for the gang — a claim Silverstein and his attorneys deny.
Prosecutors also argue that the government has provided Silverstein with “the minimal civilized measure of life’s necessities,” including adequate food, clothing and health care, and that he has suffered no discernible mental-health problems.
Prison psychologists, they add, have noted Silverstein’s “resilient character.”
Home a “violent place”
Silverstein, who goes by Tommy, was born in Long Beach, Calif., in 1952, and grew up in a home he describes in his declaration as “an angry and violent place.”
His mother hit the kids with anything she could get her hands on, Silverstein said. Once, after he was beaten up by another boy, she told Silverstein that if he didn’t stand up for himself the next time, she would take a belt to him.
When he was 19, Silverstein was sent to San Quentin prison in California for robbery. Out on parole a few years later, he soon was arrested again for armed robbery, this time with his father and cousin.
“I was 23 when I was sentenced to 15 years for that robbery,” Silverstein wrote in his declaration. “My share of the proceeds was a few hundred dollars. My life on the outside was over forever.”
Silverstein was sent to the U.S. Penitentiary in Leavenworth, Kan., where he said life was divided along racial lines, and “newcomers had to be careful not to show any weakness.”
For his own safety, Silverstein felt he had to align with a side.
“Shot caller” for gang
According to prosecutors, he chose the Aryan Brotherhood, where membership is severed only by death.
To “make his bones,” or become a member, Silverstein stabbed a black inmate to death in 1979 and later became a “shot caller” in the gang, prosecutors allege.
Over the next few years, Silverstein was convicted in that slaying and in the deaths of two other inmates. An appeals court reversed one conviction. In his declaration, Silverstein denies committing two of the murders.
Silverstein said he was living “in constant fear of reprisals” when, about a year later, he grabbed keys and a shank from an accomplice, unlocked his handcuffs and killed Clutts.
“Even writing this declaration, I feel my words of regret are inadequate to explain the remorse I feel,” Silverstein wrote in the document filed last month.
Silverstein was sentenced to three life sentences plus 45 years for the crimes.
According to court records, a judge later described him and another inmate as “masters of prison murder.”
Cell deep underground
About 10 days after Clutts’ murder, the Bureau of Prisons transferred Silverstein to a prison in Atlanta, where he was placed in a windowless cell deep underground.
The cell was about the size of a king-size mattress — small enough that he could stand in the middle of the room and touch both walls with his arms outstretched at his sides, according to court records.
Silverstein said he was allowed to wear underwear but no other clothes. A bright light buzzed above his head at all times. He was not allowed social visits, telephone calls or reading materials other than a Bible.
With no clock or watch, he tried to track the passing of time by counting food trays as they were delivered.
“I now know I was housed there for about four years, but I would have believed it was a decade if that is what I was told,” Silverstein wrote.
After his first year in Atlanta, prison officials allowed him to have art supplies. He also got a radio to listen to religious programming, and he began practicing yoga.
Imposing restrictions
In August 1984, the Bureau of Prisons director issued a memo imposing “specific, individualized measures” for Silverstein’s confinement. These included noncontact, limited visiting and other restrictions.
The memo did not indicate a time frame for the measures to be in place, but it did order periodic reviews, including daily visits from a unit staffer and a psychological review every 30 days. Every 90 days, the warden was to send a report to the regional director.
In 1986, Silverstein also began receiving in-person reviews every six months from executive prison and Bureau of Prisons staff, prosecutors say. At each of these reviews, Silverstein had the chance to raise concerns about his confinement, Assistant U.S. Attorney Juan Villasenor wrote in a motion filed in district court.
Silverstein’s attorneys describe the reviews as “sham proceedings, totally devoid of any meaning or substance.”
In his declaration, Silverstein said that after a while, he stopped attending the reviews because he believed they were meaningless.
“The Silverstein Suite”
After 18 months in the basement following a move back to Leavenworth, Silverstein was transferred to a prison area that came to be known, ironically, as “The Silverstein Suite.”
It was made up of a cell, a place for strip searches and an indoor-recreation spot that also could be used for noncontact visits. Each area was separated by steel doors that prison staff controlled remotely.
Silverstein also had his own “outdoor” recreation area measuring about 17 feet by 14 feet. It was surrounded by 20-foot- high concrete walls and topped with bars and wire mesh.
At first, Silverstein was allowed one phone call per month. By 2001, he was allowed 300 minutes of phone time per month. Because he was rarely allowed to leave his residence, guards would bring the phone to him.
Two surveillance cameras monitored his movements 24 hours a day, seven days a week in the Silverstein Suite — his home for more than 15 years.
The most dangerous
When Leavenworth became a medium-security prison in 2005, the Bureau of Prisons transferred Silverstein to Supermax, the Florence prison reserved for the nation’s most dangerous criminals. Among them are terrorists involved in the Sept. 11, 2001, attacks and “Unabomber” Ted Kaczynski.
No one told Silverstein why he was being moved, so in the van on the way there, Silverstein hoped the switch meant a change for the better.
“I soon realized it was not,” he wrote.
His first cell at Supermax was about 9 feet by 10 feet. A steel door was built in the hallway so Silverstein and other inmates couldn’t shout to one another.
Phone time was cut to two 15-minute calls per month, and the indoor recreation area was so small he could walk only 10 steps in each direction.
Mental-health evaluations were conducted once a month by talking through the solid- steel door, he said.
In November 2007, attorneys from DU’s Student Law Office filed the federal lawsuit. About five months later, Silverstein was moved to the general prison population.
At Supermax, however, even inmates in the general population are held in isolation and must remain in their cells 22 hours a day, five days a week, and 24 hours a day the remaining two days a week, according to court records.
Any noise a surprise
While Silverstein can’t see other inmates in the unit, they can hear one another. After so many years of almost complete silence, even with earplugs, the sounds of toilets flushing and water running take him by surprise, Silverstein said.
In the lawsuit, attorneys Brittany Glidden and Laura Rovner and DU law students Erica Day and Nick Catanzarite are asking U.S. District Judge Philip Brimmer to allow Silverstein regular and meaningful human contact — direct, face-to-face contact in which he is not behind glass, bars or metal barriers.
They also are seeking monetary damages, saying the Bureau of Prisons violated Silverstein’s rights to due process.
They point to findings by international bodies regarding the conditions in which Silverstein and other prisoners in similar situations have been held.
In 2006, for example, the United Nations’ Committee Against Torture expressed concern about the “extremely harsh regime” imposed on inmates at super-maximum prisons in the United States.
Last summer, the European Court of Human Rights temporarily declined to extradite four terrorism suspects to the United States for fear that conditions in super-maximum prisons would constitute “torture or . . . inhuman or degrading treatment.”
Clutts’ widow responds
Reached at her home in Illinois this week, Clutts’ 76-year- old widow, Joeann, said she doesn’t think Silverstein ever should be released from solitary.
The death penalty would have been the only appropriate punishment for Silverstein, she said, but it was not an option for federal crimes at the time.
“The rest of my family feels the same way,” she said.
Silverstein, meanwhile, says he is no longer the man he once was. He describes himself as a Buddhist who practices yoga, needs bifocals and has been a model prisoner for 28 years, not acting out at guards or swearing, spitting or causing other problems.
“This lawsuit has given me a little hope that my decades of clear conduct may be recognized,” Silverstein wrote.
“But even now I am not hoping for much. I would like to be able to eat a meal with someone else occasionally. I would like to have a visit with my family that ends in being able to hug my daughter goodbye and to shake my son’s hand.
“I know that I have sacrificed most of my rights by virtue of my actions as a much younger man. But I think that these things are not too much to hope for, even in my circumstances.”
Brimmer has set a May 6 court date to discuss a potential trial date.
Republished with permission from The Denver Post