Litigating Solitary Confinement: Class Certification in Ashker v. Brown – Guest post by Brittany Stonesifer
Tonight, 7-8, KALW City Visions: Program on Reentry
California Realignment Resources
This post will be continuously updated and serve as a bibliography of published works and works in progress on the California Criminal Justice Realignment. If you are working on similar topics or know of a project not mentioned here, please email me with the details and possibly a link.
Jones, Nicole. 2012. Realignment: California’s Criminal Justice Experiment. KALW four-part radio show.
Macallair, Dan, et al. 2012. Lessons Learned:The Santa Cruz County Story, Center for Juvenile and Criminal Justice.
Owen, Barbara, and Alan Mobley. 2012. “Realignment in California: Policy and Research Implications.” Western Criminology Review 13(2):46-52.
Schlanger, Margo. 2013. Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, Harvard Civil Rights-Civil Liberties Law Review (CR-CL), 48(1).
Spencer, Jessica, and Joan Petersilia. 2013. Voices from the Field: California Victims’ Rights in A Post-Realignment World. Federal Sentencing Reporter 25(4).
Researching the California Criminal Justice Realignment
I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.
David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a “non-non-non” and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.
Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the “hydra risk” of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow’s Normal Crimes – first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich’s study of the Los Angeles County Jail.) This research may entail access issues we should overcome.
Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: “torture on the installment plan.”He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).
Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of “dangerous offenders”, whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.
We had a very lively discussion with audience members:
Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)
What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?
How do institutional pressures – courtroom workgroups, profiteers, unions, the market – play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.
What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.
With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to “work”? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?
One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.
We also discussed the problematic aspect of thinking that mass incarceration is “normal”, and that we won’t be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.
Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.
I’d very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.
On Gov. Brown’s Desk
Gov. Brown signing a bill. Photo courtesy the Examiner. |
The legislative session has ended, and many criminal justice bills are on Governor Brown’s desk, awaiting his signature or veto. Here are some of the important decision already made, or about to be made, at the gubernatorial office.
There is a whole lot of gun control bills. This legislative session, no doubt influenced by the Sandy Hook tragedy, included many bills to prohibit certain types of ammunition, outlaw the sale of fixing kits to create assault rifles, ban open carry, and require certification and licensing. The NRA has issued a call to its members to oppose all of these bills.
There’s also AB 105, proposed by Gov. Brown himself, and signed a few days ago, which will spend $315 million of your money and mine on contracting with private jails. This is part of Brown’s campaign to circumvent the Supreme Court order to reduce population; as BeyondChron pointed out time and again, Brown’s stubbornness on prisons and general punitive old-school approach to incarceration is difficult to reconcile with his otherwise progressive positions.
Happily, not all news are bad. Brown has signed SB 260, which will give juveniles incarcerated for lengthy periods of time a right to appear before the Board of Parole Hearings to demonstrate their suitability for release after serving at least 15 years of their sentence. This bill may affect the fate of as many as 5,000 California inmates.
Still awaiting gubernatorial approval is SB 649, which would convert all simple drug possession offenses in California into wobblers, allowing for their prosecution as misdemeanors. Ironically, approving SB 649 may work well in conjunction with AB 105, in terms of the monetary savings and inmate diversion that will result from it.
Also sent to the governor’s approval is AB 218, otherwise known as Ban the Box, which prohibits asking job applicants about their criminal records until it is established that they meet the minimum qualifications for the job.
Also notable, SB 569, if signed by the Governor, will require the police to videotape all police interrogations of juveniles accused of murder. Why only juveniles? Why only murder? Presumably, you have to start somewhere, and the risks of procuring false confessions are greater with juvenile suspects. Even this partial requirement has police officers bristling, though I can see benefits to the police in the sense that proper interrogations can no longer be grounds for lawsuits or public upheaval.
If any of the bills to be signed is close to your heart, and you’d like to tell the governor, please do so!
Mailing address:
Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814
Phone: (916) 445-2841
Fax: (916) 558-3160
Email here.
Ashker v. Brown: Solitary Confinement Lawsuit Seeking Class Certification
The struggle against long-term solitary confinement continues even after the end of the hunger strike. A group of inmates is suing Gov. Brown and CDCR, hoping for an injunction to end gang validations, confinement based on flimsy evidence, and solitary confinement for long periods of time. They did not get a preliminary injunction, but the motion to dismiss was denied as well.
In the lawsuit, the inmates bring up two types of constitutional arguments:
Due Process arguments, addressing the process by which people are placed in solitary confinement indefinitely. One can end up in solitary confinement for a defined period of time, for a violation of prison rules; this lawsuit addresses a different category of cases, in which people are classified as gang members based on problematic and scant evidence and placed in solitary confinement with no end in sight. If the court accepts this claim, it will order an overhaul of CDCR regulations regarding gang validation.
Eighth Amendment arguments, addressing the physical and mental health risks involved in confining human beings in segregated conditions for more than ten years. There is a solid body of evidence regarding the horrific and irreversible impact of spending dozens of years in a small cell by oneself for 22.5 hours a day, with no human contact, on a person’s body and psyche (see fact sheet). If the court accepts this claim, the best case scenario is a cap on using solitary confinement for periods exceeding ten years.
The first step in court is to have the lawsuit class certified under Federal Rule 23. What that means, in legal parlance, is that the lawsuit becomes a petition on behalf of a group of inmates, rather than the individual petitioners. With regard to the due process argument, the appropriate class consists of all inmates who are in solitary confinement for an indefinite period following a gang validation process. With regard to the Eighth Amendment argument, the appropriate class consists of anyone doing time in solitary for more than ten years. Here’s the petition for class certification.
Under Rule 23, the inmates will have to prove that they are too numerous a group to litigate individually, and that the representative inmates bringing the suit are adequate representatives with claims that are typical to the entire group. This has been a problem in the past sometimes, when inmates brought up common law questions that would require individually-tailored legal responses. It does not seem that this is the case here. What the petitioners are seeking is a change in validation policy and a cap on confinement length, a remedy that would address the concerns of the entire class. So, the petition for class certification seems to have a fairly good chance. As to the merits of the suit, we’ll continue following it.
Interested in attending the oral argument?
When: Thursday, Sept. 26, 2013 at 2:00 p.m.
Where: Oakland Courthouse, Courtroom 2, 4th floor, 1301 Clay Street, Oakland, CA, 94612 before Chief District Judge Claudia Wilken.
The Center for Constitutional Rights wants people to attend the hearing. If you plan on showing up, do your best to arrive 30 minutes to one hour early, in order to go through security. Everyone will need a current form of identification in order to get inside the building.
For those of you who can’t make it, the CCC blog will cover the oral argument.
___________________________
Thanks to my colleague Morris Ratner for our conversation about class certification.
BREAKING NEWS: Ban the Box Passes Senate Floor!
Thanks to your efforts, phone calls, and lobbying, Ban the Box has passed the Senate Floor, 21-16, and will now go to the Governor. Good things can happen when good people care.
Ban the Box Needs Your Help!
Cheauvon, and other honest and accountable formerly incarcerated people who are looking for work and want to take responsibility for their lives, need YOUR help!
AB 218, otherwise known as the Ban the Box initiative, would prohibit state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications.
The bill failed on the Senate Floor yesterday by a vote of 20 to 16, but was granted reconsideration. Which means there is something you can do to make things right. It’s the last day of the Senate session and this is an opportunity to pass this important bill.
Call one of these senators (highest priority are Senators Pavley and Roth):
Fran Pavley: Phone: (916) 651-4027 District 27 incorporates and maintains the eastern portion of Ventura County, which includes the cities of Simi Valley, Moorpark, Thousand Oaks, Agoura Hills, and Westlake Village. It also includes the coastal area extending from Leo Carrillo State Beach to Malibu and on to Topanga Canyon. Additionally, it captures the communities of Calabasas, West Hills and a portion of Santa Clarita in Los Angeles County. It maintains the coastal mountain range and watershed. This district reunites the cities in Eastern Ventura County above the Conejo Grade and combines them with communities in the greater Santa Monica Mountain area and the western San Fernando Valley along the Highway 101 and 118 corridors.
Richard Roth: Phone: (916) 651-4031; District 31: Riverside County including the Cities of Corona, Eastvale, Jurupa Valley, Moreno Valley, Norco, Perris and Riverside, Fax: (916) 651-4931
Hannah-Beth Jackson: Phone: (916) 651-4019; District 19 Santa Barbara County and a portion of Ventura County.Santa Maria, Buellton, Solvang, Goleta, Santa Barbara, San Buenaventura, the Santa Clara Valley (Santa Paula, Fillmore, Piru) and Oxnard, Port Hueneme and Camarillo on the southeastern border. Agricultural nexus between the Santa Clara Valley, Oxnard plains, and the Santa Maria area.
Jerry Hill: Phone: (916) 651-4013; District 13; Atherton, Belmont, Brisbane, Burlingame, East Palo Alto, Foster City, Half Moon Bay, Hillsborough, Los Altos, Los Altos Hills, Menlo Park, Millbrae, Mountain View, Pacifica, Palo Alto, Portola Valley, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco, Sunnyvale, Woodside and parts of unincorporated San Mateo County and unincorporated Santa Clara County.
Here’s a suggested script for your call:
New CJCJ Data: The Problem is in the Counties
Jerry, hold your horses; perhaps a comprehensive state plan is not what we need. New fact sheets produced by CJCJ based on data from CDCR and the Criminal Justice Statistics Center indicate that the problem with reducing prison population is located at the county level.
The first fact sheet shows the county disparities in incarceration. CDCR data are broken according to prison admission rates. As the fact sheet states, “the 17 counties with higher than average prison admission rates per felony arrest have imprisonment rates 60.7 percent higher than the 40 counties with lower than average rates.” Those counties, ranked from the highest to the lowest imprisonment rates, are Kings, Riverside, Butte, Monterey, Yolo, Yuba, Shasta, San Joaquin, San Bernardino, Madera, Amador, Sacramento, Kern, Tehama, Santa Barbara, Merced, and Sutter. Los Angeles County was analyzed separately because of its population size.
Following David Ball’s awesome recent paper, which suggests that violence rates are a good way to allocate money to counties because they are good proxy for actual incarceration needs, I would love to see violent crime statistics on these counties, to see whether these incarceration rates are justified.
My concern is that this is actually not about an increase in violent crime. The second fact sheet from CJCJ indicates a disturbing trend of increase in new prison admissions for property and drug crimes (see graph).
Maybe we can save ourselves $350 million of your money and mine by finding a way to incentivize high-incarceration counties to incarcerate less?