“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” wrote Judge Shira A. Scheindlin, quoting the U.S. Supreme Court, when she ruled last week that a federal prisoner should be released from solitary confinement. On February 24, Scheindlin, a U.S. District Court Judge for the Southern District of New York, ordered the federal Bureau of Prisons (BOP) to remove inmate Viktor Bout from fifteen months of solitary in the Special Housing Unit of the Metropolitan Correctional Center (MCC), a federal jail in lower Manhattan, and placed in the general population. https://solitarywatch.org/2012/03/02/decision-of-federal-judge-frees-prisoner-from-solitary-confinement/

I spent years, alongside lawyers, civil-rights leaders, concerned citizens, and family members of the incarcerated, taking part in vigils outside MCC to call attention to the inhumanity happening within its walls. Over and over, Department of Justice officials did nothing. I went to court hearings and read court filings where people being held there attested to the inhumane conditions at MCC. Judges repeatedly refused to intervene. Nearly all were persuaded by the government’s incessant claims that such conditions were justified by necessity and national security. I Tried to Tell the World About Epstein’s Jail. No One Wanted to Listen. The Metropolitan Correctional Center has become notorious for decades of inhumane treatment. AUGUST 16, 2019, Jeanne Theoharis -https://www.theatlantic.com/ideas/archive/2019/08/real-scandal-mcc/596257/

We carry mental maps around with us all the time. These are called theories-in-use. They are the theories that are implicit in what people do, our view of how the world really works. They are often unspoken. Theories in use influence how we behave in the real world. How we interact with institutions, and the way we think about what we have done, what we can do and the real-world consequences of our actions. They are the basis on which we break written and unwritten rules and allow ourselves to get away with it. They are also how we know institutions, like prisons, really work in practice.

People also describe what they are doing and why they are doing it in ways in which they think the world would like them to be. They describe their behaviours in ways that conform with the laws and customs of their society. These descriptions are known as espoused theories:  they are what we would like others to think lies behind what we do. At a bigger scale they are also how institutions would like us to believe that they really work.

Marylebone Magistrates Court Room 1 witnessed a duel today between theories-in-use and espoused theories. Between how the world is and how we would like the world to be. Reality, hopefully, won the day.

Arif Naqvi was facing a fresh hearing in his fight against extradition. I sat in on the afternoon session. At one point, in the middle of the questioning of a witness for the defence, a journalist, who had dialled into the Court, unmuted their phone. A third conversation suddenly mingled with the courtly exchanges of Court 1. It was like the world had suddenly walked in on a process frozen in time and ritual. The traditional set-up had some added COVID-19 trappings. Some people were wearing masks. The Chief Magistrate was behind a screen. Mr Naqvi was beamed in on a screen with white sheets behind him. The screen was split, with an expert witness for the defence on the other half of the screen.

Essex County Jail in New Jersey has been offered up by the US government as a better alternative to the other options for Mr Naqvi to be held if he is extradited. They cannot guarantee that Mr Naqvi will be sent there but they will recommend it. The other option, in which he might still end up, is MCC in Manhattan in which Epstein committed suicide but which had been the subject of decades of investigation into inhumane conditions. Yesterday Elizabeth Warren published a further report arguing that the inspection system for federal prisons in the US is corrupt. Conditions that were protected by reports and government statements espousing a defence of the facilities.

The senior staff, including the medical staff, of Essex County Jail submitted reports in this case that also espoused their theory of how the US prison system works, how it responds to critical reports and what conditions would be like for Mr Naqvi if he is extradited. The barrister for the United States government, went to bat in typically English adversarial manner in defence of these espoused theories. Repeatedly he asked the expert witness if he thought that the prison officials were lying when they described the paradise that awaited Mr Naqvi’s arrival on US soil. The new paint work, the new mattresses, the private exercise areas, the medical care, the new food, air conditioning and access to clothes and even underwear. This paradise existed on the Federal side of the jail – all the bad things happened on the ICE side of the jail.

The expert witness, Joel Sickler, forty years as an advocate for those imprisoned in the US system, put it best when he said over and over again that the reports by the prison authorities were not based on lies but on how they wished things  to be. The exchange on the mattresses summed this up best. Initially the barrister for the USG implied that all the mattresses had been replaced. The expert witness said that one of his sources had not had their mattress replaced. But in fact, the report had said that mattresses showing wear and tear had been replaced. It was an aspiration to replace all the mattresses, but it had not happened. Anyone with even a day’s experience of an institution understands and lives in the difference between what is and what will be, between theories in use and espoused theories.

Sickler did not mince his words: Essex County Jail is a very tough place: inherently dysfunctional, dangerous, and psychologically debilitating – like almost all US prisons. Exercise areas are dominated by gangs who control access to phones and tablets. Standards of cleanliness are low and unsafe. Medical care is haphazard, it can take weeks to get medication and it is not clear if the pharmacy would have the medication needed for a prisoner with on-going medical conditions. There is a model of how the prison is meant to be sanitised during the pandemic, but Mr Sickler doubted that this model was followed. The guards at Essex County come from the same communities as many of the inmates, very few of whom are white collar criminals. As they come from the same communities, they often turn a blind eye to violence against prisoners who come from different communities.

The problem for Mr Sickler was that the evidence of the institutional and structural problems in the US prison system are well documented with respect to those held by ICE. A surprise visit by homeland security to inspect ICE facilities at Essex County produced an utterly damning report in June 2019, one of many referenced by Mr Sickler’s expert witness testimony. These reports did not extend to the areas of the prison in which Federal prisoner’s are held. Into this gap of light, paper thin, dived the government’s barrister. Mr Sickler could not state that the conditions in the Federal dorms and wings of the prison were as bad as in the ICE parts of the prison based on reports because the inspections of these sections are not released to the public. All he had were his opinions. Based on six sources who had been held in the prison, multiple reports on the ICE sections of the prison and decades of experience of the US prison system.

The reports from the prison authorities naturally contradicted all elements of the negative picture that was painted. There was a special unit for Federal prisoners over 60 in which they would get all the medical help they might need, with good food and their own exercise area. While one can see that the USG’s lawyer might have actually believed these things, his fake outrage that none of Mr Sickler’s sources would offer their names to the Court was entirely unconvincing. Mr Sickler was patient as he said they did not want to be identified because they had criticised prison authorities. The mask of the espoused theory slipped away, everyone in that court room knew very well why they would not want to be named. It is the barrister’s job to articulate the espoused theories of the case they are presenting even if it contradicts a case, they may have been making in the opposite direction a few weeks ago. And even if the reality is clear to all. It is a job that both briefs did well today, but Mr Sickler cut through the theatre with one simple statement that for me stands out from the afternoon’s testimony and was consistent with Mr Sickler bending over backwards to be fair to the US prison officials. Essex County Jail is a high security facility, the people there: “they do their best, truly they do, but I am fearful for the man”.

The case continues tomorrow.