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Federal Appeals Court Considers Tommy Silverstein’s 30 Years in Extreme Solitary Confinement

Art by Thomas Silverstein

Art by Thomas Silverstein

Thomas Silverstein has been called “the most dangerous prisoner in America,” based on several prison murders that took place 30 years ago. He has also been called “America’s most isolated man,” based on the conditions in which he has lived during those 30 years–conditions which, Silverstein and his lawyers contend, clearly constitute cruel and unusual punishment.

Silverstein’s closely watched lawsuit, a groundbreaking Constitutional challenge to solitary confinement, had another day in court yesterday as attorney Laura Rovner argued his case before a federal appeals court. A detailed story on the appeal and its significance appeared in the Colorado Independent, written by longtime solitary watcher (and now Independent editor) Susan Greene.

By law, you get 15 minutes to argue in the U.S. Tenth Circuit Court of Appeals. The rules are the rules.

Yet that rule comes across as painfully ironic in the case of a man who has spent a million times that limit — 15,778,470 minutes and counting – in prison isolation. Tommy Silverstein, 61, has lived in solitary confinement nearly half his life, and longer than any other prisoner held by the federal government.

Silverstein won’t be allowed to visit Denver’s Byron White Courthouse on Tuesday to challenge the U.S. District Court ruling that said he has been unharmed by living for 30 years alone in a cell that’s smaller than a wheelchair-accessible parking spot or a Chevy Suburban. Silverstein says he gets less than a minute per day of human contact, mainly in the form of officers passing food trays in and out of the slot in his cell door or asking “Rec?” — guard-speak for “would you like to go outside?” They mean for an hour in an isolated exercise cage known among prisoners as a “dog run.”

Silverstein is no choir boy. He robbed a bank as a young man. He was later convicted of killing two men in prison. And he led the Aryan Brotherhood, a national prison gang, through the early 1980s.

In 1983, he fatally stabbed officer Merle Clutts at the U.S. Penitentiary in Marion, Illinois. That killing coincided with another murder of a guard by a prisoner that same day at Marion, which had replaced Alcatraz as the federal government’s highest security prison. Those murders punctuated a rash of prison violence that decade and led to a national movement to build supermax prisons made up exclusively of solitary confinement cells for prisoners who, like Silverstein, were deemed to be the “worst of the worst.” The U.S. Bureau of Prisons built its supermax, the United States Penitentiary, Administrative Maximum Facility – commonly referred to as ADX – in Florence, Colorado. Known as the crown jewel of the federal system, ADX is considered the most secure prison on the planet. No one has ever escaped.

Greene details the conditions in which Silverstein has lived for the last three decades in a series of supermax prisons. Those conditions were described by Silverstein himself in a lengthy brief, which we reported on here. Then Greene describes the issues at hand in the federal appeal.

Two top national prison experts said the conditions Silverstein has endured are the most severe they’ve ever encountered.

“Not only has he been subjected to the most extreme forms of isolation I have ever seen — placed in housing units that were literally designed to isolate him as completely as possible from other human beings — but he also has been confined in these places for an extraordinary length of time,” wrote Dr. Craig Haney, a psychology professor at the University of California, Santa Cruz, who has studied solitary confinement for 30 years.

Steve Martin, another noted prison expert, wrote: “The level of near total isolation from all human contact is unprecedented in my 38 years experience in corrections, which includes experience with numerous death rows and ultra-high security facilities across the U.S.”

Laura Rovner, director of the student law clinic at the University of Denver, is Silverstein’s longtime lawyer who has worked with several crews of law students representing him. On Tuesday, she’ll challenge a 2011 U.S. District Court decision that upheld the Bureau of Prison’s assertions that Silverstein’s decades in solitary haven’t deprived him of life’s basic necessities. Judge Philip Brimmer sided with the BOP’s lawyers from U.S. Attorney John Walsh’s office that the case shouldn’t go to trial.

Walsh’s office refused comment on the case.

The question before the three-judge appeals panel Tuesday morning will be whether there are factual issues in dispute that would warrant a trial. Among those are:

• The Bureau’s claim that 30 years in isolation haven’t harmed Silverstein. Experts who have evaluated him have found extensive evidence of depression, cognitive impairment, memory loss, hallucinations, severe anxiety disorder, panic attacks that make his him breathless and shaky in the company of others, and paranoia that leads him to hear voices whispering to him through vents.

• The Bureau’s assertion that Silverstein is too dangerous to lessen the extreme solitary confinement conditions in which he is housed. Silverstein’s lawyers challenge this argument based on the two best predictors of a prisoner’s future dangerousness. One is age. At 61, Silverstein has statistically aged out as posing a risk of violence. Another predictor is recent behavior. His prison record has been clean for more than two decades.

Rovner will argue that Silverstein should have his day in court to determine whether 30 years in extreme isolation amounts to cruel and unusual punishment. Silverstein is not requesting anyone to lift his three life sentences. Rather, having spent years studying Buddhism in prison, he wants to demonstrate at trial that he has changed. He also wants a shot at working his way out of solitary and some day dining and playing checkers with other prisoners and hugging his two children.

“I am quickly becoming an old man. I spend most of my days crocheting items for my family and my legal counsel and working on my artwork. It is hard to reconcile the [Bureau's] description of me as frightening and scary, when the people who see me here know I am a man peering through bifocals trying to count the number of stitches to make and afghan,” he wrote. “It’s hard, if not impossible, for me to prove what is actually in my mind and what is not. All I can do is ask that others look at my current behavior and explain that it reflects my intention never to act violently again, ever. I know the consequences – both to myself and others – that will follow. And, more importantly, I know that this is not who I wish to be.”

For Rovner and the dozens of D.U. law clinic students who over the years have revolved on and off of his case, Silverstein is an amiable and grateful client who crochets hats, mittens, scarves and blankets for them and their relatives. When he has art supplies, he uses pastels and paint to make them artwork.

That said, and despite his public apologies for his crimes, a three-time prison killer and former Aryan Brotherhood leader isn’t the most sympathetic figure in the growing national movement to end long-term solitary confinement. Silverstein’s case pivots not on redemption but on what, given all the research on the psychological harm of extreme isolation, is deemed to be cruel and unusual treatment of prisoners.

“The 8th Amendment is about what we as a society are willing to sanction as punishment. It has built into it this notion of evolving standards decency that mark the progress of a maturing society,” Rovner said. “The amendment doesn’t just protect people who are catatonic or floridly psychotic. It protects people from being harmed by the minimal civilized measure of life’s necessities, especially for what has been an unthinkable period of time.”

In 2011, Juan Mendez, the United Nations special rapporteur on torture, issued a statement calling for an “absolute prohibition” of solitary confinement beyond fifteen days. He has asked, but not been allowed to tour ADX. The prison is the subject of a federal class action lawsuit about how it treats its mentally ill prisoners, some of whom starve themselves, self-mutilate to the point of cutting off their testicles or, as was the case with prisoner Robert Knott earlier this month, hang themselves with bed sheets.

Mental health professionals, state legislatures and human rights organizations have condemned prolonged isolation, which is defined by the American Psychiatric Association as a period greater than three to four weeks.

“Given that four weeks of solitary confinement was described as potentially harmful, the 30-year duration in this case compels scrutiny. If shorter periods of solitary confinement have resulted in psychological distress and symptoms, it is not unreasonable to assume that substantially longer durations provide a greater risk of serious health consequences,” several national groups and experts wrote the court on Silverstein’s behalf.

A division of the U.S. Justice Department, under the federal Civil Rights of Institutionalized Persons Act (CRIPA), has investigated and found violations of state prisons for the overuse of solitary confinement. Perhaps the greatest irony about Silverstein’s case is that solitary confinement as practiced by the Bureau of Prisons, also an arm of the Justice Department, is exempt from that civil rights division’s review.

Comments

  1. 8forever says:

    T has not let them beat him but his mind, sight, memory, are affect by this isolation. I have passed SW address to T he had not realized he could write to you guys, he is doing a book review that I have to get typed before anyone sees it. It’s a 15 page hand written review of the book the ADX psychologist gave him “Where ever you go there you are” the last suicide was on T’s tier/unit and I would absolutely bet that a scene he describe to me that a prisoner was upset trying to get his point over to the Fed psychologist I have a feeling this is the suicide man Knox. There is no therapy there some drugs and a book as mentioned above… Which I find ridiculous. And nothing being done about these souls looking for help in a world w/out people. The decision of yesterday’s argument has not happened yet.

  2. Alan CYA # 65085 says:

    Background from this site:

    Inside ADX Supermax, Part 1: “A Bloody Nightmare”
    September 12, 2013 By Sal Rodriguez

    Harold Cunningham wrote:

    There was a bloody war going on in Marion when I arrived there, a place I should have never been sent to,..The war was racial, blacks against whites. The Aryan Brotherhood was warring with D.C. inmates.

    It was a very dangerous environment, one wrong move and you could lose your life. I was lucky, it was like living in a concrete jungle and only the strong survive. But to survive you have to become an animal and I became a monster that no one dared to fuck with.

    The environment at the Federal prison at Marion Illinois, when Silverstein arrived there was no different.

    “Between January 1980 and October 1983, there were more serious disturbances at Marion than at any other prison, including fourteen escape attempts, ten group uprisings, fifty-eight serious inmate-on-inmate assaults, thirty-three attacks on staff, and nine murders.”

    Line 46 of Silverstein’s declaration:

    “There was significant conflict between staff and prisoners at Marion.”

    Line 48: I feared attacks on my life at all times from both prisoners and staff.

    Then on lines 49-59 Silverstein gives his own account for the three murders he has been convicted of. (He admits to just two of the three.)

    Victim Robert Marvin Chappelle was also a convicted killer.

    The following information was extracted from the court record:

    “On November 22, 1981, at 7:15 p.m. guards discovered the body of Robert Marvin Chappelle a member of the D.C. Blacks prison gang. “

    Silverstein was brought to trial for the murder and pleaded not guilty.

    During the trial, inmate Norman Matthews’s testimony seemed to confirm Silverstein’s innocence.

    ‘When called to the stand to testify Norman Matthews… was asked whether he could remember November 22, 1981, he replied, “It was the day I killed Chappelle.” ‘

    Without this confession Silverstein was found guilty.

    The second murder is not denied by Silverstein but was only committed after Raymond “Cadillac” Smith the national leader of the D.C. Blacks prison gang had failed in two documented attempts to kill Silverstein.

    Smith had been convicted for armed kidnapping, armed robbery, extortion, and assault with a dangerous weapon, and sentenced to an effective term of 6-18 years.

    In prison he was known as a Moorish Science of America gladiator, nick named the “Sword of Justice.”

    At least one who knew him claims, “Men in prison feared him, both inmate and guard.”

    Silverstein said “I tried to tell Cadillac that I didn’t kill Chappelle, but he didn’t believe me and bragged that he was going to kill me,”

    Silverstein recalled. “Everyone knew what was going on and no one did anything to keep us apart. The guards wanted one of us to kill the other.”

    Enter Officer Merle Clutts.

    Pete Earley wrote in The Hot House:

    Page 393: Referring to Clutts and Silverstein, Ralph Seever, a legendary lieutenant… explained, “you never want, the relationship to get personal.” He warned.

    Whenever an inmate believes for some reason that the natural conflict between convicts and officers is personal, his ego is at stake, and in a penitentiary, image is a thousand times more important than reality.”

    Page 233 The Hot House:

    “To this day, Silverstein claims that Clutts set out to break him by harassing him in a dozen petty ways that most guards learn early in their careers.”

    In an audio recording of an interview conducted by Earley, Silverstein explains his own motives:

    16:25 Silverstein: I think he was just selling me wolf tickets. But he didn’t know I was taking him serious.

    AS MANY KILLINGS THAT I HAVE SEEN WHEN SOMEONE SAYS HE IS GOING TO KILL YOU, YOU CAN’T SIT BACK AND SAY AWE IT AIN’T NOTHING AND DO NOTHING.

    When somebody has gone that far especially when you’re telling him you don’t want no trouble why don’t you get off my case.

    You know, I PLEADED WITH THAT GUY…

    Officer Clutts also knew there were possible consequences of this harassment for he had learned this lesson the hard way early into his career in an event that foretold his own demise.

    On January 26, 1969, Officer Merle E. Clutts found the body of his superior, Senior Officer Vern M. Jarvis, in a utility closet. Jatvis had been stabbed 26 times.

    The murder of Jarvis was committed by James K. Marshall also a convicted bank robber with a 25 year sentence. The motive, Officer Jarvis had confiscated Marshall’s candy, fruit and magazines then placed him in segregation.

    Silverstein later testified that he had killed Clutts because the guard was planning to let other inmates out of their cells to kill him.

    On Line 58 of his declaration Silverstein wrote “After I killed Smith, I lived in constant fear of reprisals. It was in this frame of mind, and believing I was in a life-threatening situation, that on October 22, 1983, I killed Officer Clutts.”

    (Unbelievable you say? Then why was Smith, a known close associate of Chappelle’s, moved from another institution and placed near Silverstein’s cell, then allowed to remain there even after making two documented attempts on Silverstein’s life? )

    Indeed the lapse in security that allowed all these murders to take place, in what was the most secure facility in the bureau conjures up conspiracy theories.

    Like Marshall before him, Silverstein received a life sentence.

    This is where the similarities between the two cases end.

    On March 29, 1972 Marshall was transferred to Oregon Department of Corrections and was later paroled from his federal sentence in 1982.

    However Silverstein’s life sentence came with a “no human contact” order attached to it and with no achievable release date therefore he will die in prison.
    In his recent apology to the world Silverstein wrote:

    Line 59 of his declaration Silverstein proclaims:

    “Even writing this declaration, I feel my words of regret are inadequate to explain the remorse I feel….There is no justification for my actions.” (Last part from Line 11)

    But there is logic in Silverstein’s actions, even if only understandable by others that have been trapped like tethered animals in a slaughterhouse!

  3. Alan CYA # 65085 says:

    http://www.theatlantic.com/national/archive/2013/09/did-the-wrong-man-spend-40-years-in-solitary-confinement/279930/

    Cohen’s latest article explains how the system drags it feet and plays games to avoid reversing embarrassing errors and exposing the trickery they use to avoid doing the right thing.

    They seem to hope that all these people die before they get relief.

    Unfortunately for the rest of those held in these conditions their case dies with them.

  4. Alan CYA # 65085 says:

    This article has a bit more info on Knott along with some art work that Tom would like.

    http://www.coloradoindependent.com/144376/supermax-prisoner-robert-knott-finds-family-after-death

    “The feds were similarly unresponsive to Brocious when she asked what to do with the body. She had been told, as had others, that Knott had no next of kin.

    It apparently took the prison 11 days to contact Strick, the only person on Knott’s contact list. It was she, not prison officials, who found Knott’s family in Winnebago, Nebraska.
    Elizabeth Pliss, Knott’s half sister, had known from her mother – with whom she reunited in 2007 before her mother’s death – that somewhere she had a half brother named Robert. But neither knew what happened to him.

    In one phone call, Strick told Pliss about her connection to Knott, his background as a child, his criminal history, his challenges living with a mental illness during 18 years of extreme solitary confinement, and his suicide.

    Pliss burst into tears during that phone call – and in many subsequent calls – about the brother she never met. Sadness turns to anger when she describes a call from ADX trying to piece together basic information about a man it had imprisoned since 1995, the year the Internet entered public consciousness.

    “How does someone get so lost that nobody knows who you are? It’s sad. It’s just very sad,” she said.”

    I asked the same question when I lost my brother.

  5. Alan CYA # 65085 says:

    http://www.slate.com/blogs/crime/2013/10/23/marion_prison_lockdown_thomas_silverstein_how_a_1983_murder_created_america.html?utm_content=bufferfe4d2&utm_source=buffer&utm_medium=twitter&utm_campaign=Buffer

    How a 1983 Murder Created America’s Terrible Supermax-Prison Culture

    By Justin Peters

    Excerpts:

    “In 1983 Marion was the toughest penitentiary in the federal prison system. The… worst of those were put in Marion’s “control unit.” Getting placed in the control unit was akin to being buried alive. Inmates were confined to their small cells for almost 23 hours a day. When they left their cells, they were shackled, guarded, and under constant surveillance.

    Thomas Silverstein and Clayton Fountain were two of those prisoners who bore watching.”

    (So I ask how did they manage to kill Smith? Indeed the lapse in security that allowed all these murders to take place, in what was the most secure facility in the bureau conjures up conspiracy theories.

    Smith’s murder is not denied by Silverstein but was only committed after Raymond “Cadillac” Smith had failed in two documented attempts to kill Silverstein.

    Afterward from the Slate article)

    “Silverstein thought he was being unduly harassed by Marion corrections officers, especially a guard named Merle Clutts.”

    (Pete Earley wrote in The Hot House:

    Page 393: Referring to Clutts and Silverstein, Ralph Seever, a legendary lieutenant… explained, “you never want, the relationship to get personal.” He warned.
    Whenever an inmate believes for some reason that the natural conflict between convicts and officers is personal, his ego is at stake, and in a penitentiary, image is a thousand times more important than reality.”

    Page 233 The Hot House:

    “To this day, Silverstein claims that Clutts set out to break him by harassing him in a dozen petty ways that most guards learn early in their careers.”
    In an audio recording of an interview conducted by Earley, Silverstein explains his own motives:

    16:25 Silverstein: I think he was just selling me wolf tickets. But he didn’t know I was taking him serious.

    AS MANY KILLINGS THAT I HAVE SEEN WHEN SOMEONE SAYS HE IS GOING TO KILL YOU, YOU CAN’T SIT BACK AND SAY AWE IT AIN’T NOTHING AND DO NOTHING.

    When somebody has gone that far especially when you’re telling him you don’t want no trouble why don’t you get off my case.

    You know, I PLEADED WITH THAT GUY…

    On Line 58 of his declaration Silverstein wrote “After I killed Smith, I lived in constant fear of reprisals. It was in this frame of mind, and believing I was in a life-threatening situation, that on October 22, 1983, I killed Officer Clutts.”

    Unbelievable you say? Then why was Smith, a known close associate of Chappelle’s, moved from another institution and placed near Silverstein’s cell, then allowed to remain there even after making two documented attempts on Silverstein’s life?
    Indeed the lapse in security that allowed all these murders to take place, in what was the most secure facility in the bureau conjures up conspiracy theories.)

    From Slate’s article:

    “The message the two men sent was clear: Even the tightest security restrictions weren’t enough to control them.

    Marion officials accepted the challenge. Five days later, guards sent a message of their own, locking down the prison and allegedly exacting a measure of revenge against its inmates. In 1990 a former Marion C.O. named David Hale discussed the aftermath with Mother Jones:

    I can’t describe to you—I never seen beatings like that. At least fifty guys got it, maybe more. I was only involved in seven or eight, but there was beatings every day there for a while. I had inmates ask me how long this madness was going to last. And I said, from what I seen, it better be a permanent lockdown, because when you beat a man like that, he’s gonna retaliate.”

    (Oops so there in lays the motive;

    When you abuse and threaten a human being you can expect him to retaliate.)

    Now this next line from Slate is enlightening.

    “Putting Marion in permanent lockdown was an idea that had been discussed for years, and now it came to pass.”

    (In fact as the Angola 3 case so infamously shows many were already under such conditions for a decade by the time Clutts was murdered.

    Silverstein and Fountain just made the decision more politically correct.

    One clearly imagine a conspiracy to eliminate two Jailbirds with one stone in the decision to place known rivals next to each other and keep them close even after two incidents. It has even been claimed by one guard that the management was behind the lapse security precautions that contributed to the murders of the two CO’s. The necessary event needed to justify the complete lockdown. There is a Youtube video of a Marion guard making this claim. Anything is possible I guess.)

  6. Alan CYA # 65085 says:

    The video and it is the same guard quoted in the Slate article.

  7. Neal says:

    With me being a ranking officer in a correctional facility I totally agree with how this animal is being treated. 1) he was in a racial gang (AB) 2) he murdered another inmate and 3) to top it off he murdered an officer. True we are not here to punish inmates but to house them and feel they are doing that. They are not beating him or depriving him of his civil liberties. In fact they are giving this inmate (for lack of better words)to much….he doesn’t need a t.v. or his own personal recreation area and no don’t kill him or give him the means of killing himself (a watch) he would be getting the easy way out. Let him rott in jail….he should never be able to see the light of day or be granted to breathe the same air as I do. I figured I might be a little partial since I work in the system so I asked my mate whom has a brother incarcerated and her views are similar to mines. On top of everything he killed an offical and will kill again if given the opportunity!

  8. masteradrian says:

    QUOTE With me being a ranking officer in a correctional facility I totally agree with how this animal is being treated. UNQUOTE

    In my opinion the only animal that is present are you!
    A “ranking officer in a correctional facility” who refers to an inmate put into his care as an animal………
    It’s a good thing that I do not know what facility you are a “ranking officer” in, or what your name is, because when I would have that knowledge I would most certainly file the most serious complaints against you!
    You are, in my opinion, one of those individuals who should be arrested, prosecuted and sentenced to death as no penal system should have such anti-social, such anti-human individual working in it!

    Were we see inhumane treatment of prisoners all around the world, and as Americans stand up against such atrocities, we should be more aware of creatures likes this Neal, who within our own borders, and on American soil are just doing what we are appalled about when it happens in other countries, namely disrespect and inhumane treatment and consideration of inmates!

    If this sort of thinking is common practice among so-called “ranking officers” of correctional facilities then I for one feel that that our correctional system is worse then rotten, it is more worse then the systems in countries were there are totally no human rights upheld!
    Then our system is sicker then sick, and more rotten then rotten, and any claim of being better then the lowest of lowest 3d world countries is an utter lie, and every American should be ashamed that we ever have sent out soldiers to other countries to bring our values and norms!

    When we are claiming that the standards we bring to other countries and cultures as being the best but maintain values and norms as spoken out by this Neal person I feel deeply, and utterly ashamed as an American!

  9. Neal says:

    Well Adrian I am sorry that you have such atrocious views of myself and my beliefs, but I am entitled to my opinion and with saying that it has nothing to do with the way I carry out my job. Fact of the matter is this particular individual/coward is a racist and murdered one of my fellow officers. So yes I feel strongly about him and how he feels his living accommodations are being met. I bet you wouldn’t last one hour in the trenches with me. I deal with some of Americas worst at the less favorable time in there life so keep your derogatory remarks about me at bay and stay in your perfect little world with wall street problems.

  10. Alan CYA # 65085 says:

    First of all I do not condone murder but I can understand the motives. No doubt the two murders Silverstein acknowledges committing are hard to read about. But what can drive a man to commit such horrific acts?

    (Pete Earley wrote in The Hot House:

    Page 393: Referring to Clutts and Silverstein, Ralph Seever, a legendary lieutenant… explained, “you never want, the relationship to get personal.” He warned.
    Whenever an inmate believes for some reason that the natural conflict between convicts and officers is personal, his ego is at stake, and in a penitentiary, image is a thousand times more important than reality.”

    In an audio recording of an interview conducted by Pete Earley, Silverstein explains his own motives for Clutts:

    16:25 Silverstein: I think he was just selling me wolf tickets. But he didn’t know I was taking him serious.

    AS MANY KILLINGS THAT I HAVE SEEN WHEN SOMEONE SAYS HE IS GOING TO KILL YOU, YOU CAN’T SIT BACK AND SAY AWE IT AIN’T NOTHING AND DO NOTHING.

    When somebody has gone that far especially when you’re telling him you don’t want no trouble why don’t you get off my case.

    You know, I PLEADED WITH THAT GUY…

    On Line 58 of his declaration Silverstein wrote “After I killed Smith, I lived in constant fear of reprisals. It was in this frame of mind, and believing I was in a life-threatening situation, that on October 22, 1983, I killed Officer Clutts.”

    Unbelievable you say? Then why was Smith, a known close associate of Chappelle’s, moved from another institution and placed near Silverstein’s cell, then allowed to remain there even after making two documented attempts on Silverstein’s life?

    There is also no evidence in his art work of racism. If he held racist views surely it would manifest itself in his art.

    On his blog he has berated a real racist telling him he had Mexican’s in his own family that he loved.

    Not everything is cut and dry. You can find evil on both sides of those doors.

  11. Tracy Powers says:

    Neal, I work at a maximum sec. prison and know how this works. I in no way condone his killing of a guard or another prisoner. However, we have to show a modicum of respect for the prisoners. If not, the odds of ending up like Klutts go up exponentially. The way you talk about them being monsters, I would watch my back if I were you.

  12. Neal says:

    Well Mrs. Powers as you know working in this field you have to watch your back constantly which I do. Furthermore I expect the worse and welcome the best but I call it like I see it. Maybe you haven’t witnessed some of the horrible things that I have inside of a maximum institution but if you would of you could clearly see how ones outlook towards a violent inmate might be. Go through a riot or two and I’m sure you would think differently or better yet work a week or two with me and you would change too.

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