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D.C. jail treatment of Capitol riot defendants draws bipartisan outrage

"It was a well-thought-out strategic plan" to transfer inmates to D.C., where they can be "mic'd in a cage," lawyer says.

Updated: May 10, 2021 - 8:37am

A short drive from the U.S. Capitol, 1,500 inmates are stuck in their jail cells 22 hours a day. Until last month it was 23, and they were also barred from going outside.

A smaller group of inmates may have it even worse: those awaiting trial for alleged crimes in the Jan. 6 Capitol riot. They've been placed in "restrictive housing," a maximum-security designation.

The plight of nearby inmates has received surprisingly little attention on Capitol Hill for the better part of a year, since the District of Columbia Department of Corrections issued its "medical stay-in-place" policies for COVID-19 mitigation.

That only changed in late April, and it flipped the partisan script. Rep. James Comer, ranking Republican on the House Oversight Committee, demanded better treatment for the inmate population at large, while Democratic Sens. Elizabeth Warren and Dick Durbin spoke up for inmates accused of insurrection to keep Donald Trump in office.

The issue could complicate D.C.'s bid for statehood. "D.C.'s house is not in order, and the solution is not to grant it even more authority through statehood," Comer said April 19 in response to a Washington Post report that characterized the jail's COVID-19 order as "mass solitary confinement."

Rep. Clay Higgins (R-La.) also cited the Post report in an April 22 floor speech against D.C. statehood. Alleging the city has been "essentially torturing inmates" for more than a year, Higgins said: "That is ultimately a violation of the 8th Amendment ... Is this what we can expect from a D.C. state?"

Comer requested but has not received a briefing with Mayor Muriel Bowser about jail conditions, prompting him to demand Oversight Chair Carolyn Maloney hold an emergency hearing on "these gross abuses that are happening right at our doorstep."

The Jan. 6 defendants are being held in pretrial detention on charges ranging from knowingly entering or remaining in restricted grounds without authority to conspiracy, assault and obstruction of an official proceeding.

Asked about Jan. 6 defendants specifically, Comer's office provided Just the News a statement Friday night. "Reports that January 6 defendants, who have been charged but not yet convicted of a crime, [are] receiving even harsher treatment is equally appalling," he said. 

Both Bowser and Maloney "have refused the requests asked of them," according to Comer. A spokesperson for Maloney connected Just the News with an Oversight staffer, who has not responded, while Bowser's spokesperson has not responded.

A Department of Corrections spokesperson did not answer email questions and declined to speak on the record in a phone interview.

A lawyer for Jan. 6 defendants told Politico that lawmakers should contact him if they were concerned about the inmates' treatment. Marty Tankleff, himself exonerated after decades in prison for a wrongful murder conviction, told Just the News no one has contacted him nearly three weeks later.

His clients include Ryan Samsel, who alleges a prison guard beat him so badly he suffered permanent eye damage, and Edward Jacob Lang, an observant Jew who claims guards disparaged him as a "false prophet" as he prayed for other inmates.

Singled out to 'punish' or 'break them so that they will cooperate'

In a March order denying a defendant's removal from restrictive housing, U.S. District Judge Royce Lamberth said the D.C. attorney general had placed all Jan. 6 defendants in such housing "for their own safety and the safety of the jail," Politico reported.

"Solitary confinement is a form of punishment that is cruel and psychologically damaging," Warren told Politico a month later. The Massachusetts Democrat fears the Jan. 6 defendants are being singled out to "punish" them or "break them so that they will cooperate" with federal prosecutors.

Durbin was surprised to learn about the restrictive housing. It should be a "rare exception" with a "clear justification," the Illinois Democrat told the news outlet, to be used in "very limited circumstances."

Staff for Durbin, who chairs the Senate Judiciary Committee, and Warren, a member of the Senate Democratic leadership, did not respond to queries for an update on their efforts to get better treatment for the Jan. 6 defendants. 

Neither did leaders of the House Judiciary or Senate Homeland Security and Government Affairs committees, which have jurisdiction. D.C. Delegate Eleanor Holmes Norton declined to answer whether she planned to use her influence in D.C. to get the inmates better treatment.

Just the News could not find a definition of "restrictive housing" except for a DOC policy document last reviewed in August 2019 that calls it "single occupancy," with no other restrictions listed. It's reserved for inmates who are "sexual predators," engage in "assaultive behavior," are "likely to be exploited or victimized by others," or have any "other documented special need."

A May 3 statement by the Department of Corrections lays out one major difference for those in restrictive housing. They aren't allowed to have digital tablets for conducting legal research through the law library staff, but instead must submit paper requests with a two-day turnaround.

Can't see evidence, confidentiality is impossible

Tankleff and fellow lawyer Steve Metcalf, who share a New York practice, told Just the News their Jan. 6 clients had been placed in two forms of 23-hour solitary confinement. One is "the box," where inmates are sent for disciplinary infractions. 

They characterized the other, "administrative segregation," as non-punitive in name only. Tankleff said the clients weren't given notice or the opportunity to challenge the designation, which is unusual.

The lawyers have faced hurdles starting with actually meeting their clients. A "contact visit" requires an inmate to quarantine afterward for a minimum of 14 days in a space that includes new inmates. "It's not the safest place" for staying COVID-free," Metcalf said.

For non-contact visits with clients, lawyers aren't allowed to bring phones or computers, he added, which makes it nearly impossible for Jan. 6 defendants to see evidence against them, namely "recordings from thousands of people's cell phones."

Tankleff said he has put evidence on a laptop disconnected from the internet to show clients in other jails with no problem. "Your ability to participate in your own defense" is not available to these clients, which is an obvious ground for appeal, he added.

The design of D.C. inmate facilities also makes confidentiality functionally impossible, according to Tankleff. "There isn't even a solid wall" in the space where attorneys meet with clients, he explained. Two cubicles down from one meeting, "we heard everything" another lawyer was saying, he recalled.

It's highly suspicious why the defendants arrested elsewhere have to be sent to D.C. when all their hearings are virtual by default, he said: "What was the purpose of transferring them?"

Metcalf said it's the first time in his career he's seen this mass exodus of defendants to another jurisdiction. "It was a well-thought out strategic plan" to get them to D.C. and put in the same space, where they can be "mic'd in a cage."

"Adjustments" to policy following criticism

The Department of Corrections has faced scrutiny for the strict jail conditions going back to the start of the COVID-19 pandemic, but especially in the past month.

D.C. is an outlier among jail systems even in its own backyard, the Post reported. Inmates in Montgomery County get 2 1/2 hours outside their cells, and three hours in Prince George's County.

While officials said the 23-hour lockdowns had largely stopped the spread of COVID, Comer seized on the psychological and physical harms the policy was reportedly causing.

"This is something to be expected of authoritarian governments such as Russia— not the local government that serves as the center of the free world," the Kentucky Republican wrote to Bowser. 

Two weeks after the fresh round of scrutiny, DOC laid out COVID-19 policy "adjustments." Among the changes: an immediate increase from one to two hours "out of cell time," 90 minutes of outdoor recreation starting May 15 (up from one hour), and restoration of "limited video visitation" by June 7.

Possibly responding to news reports, it said the medical stay-in-place order was "not designed to be punitive in nature and is also not the same as placing residents in restrictive housing." 

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