Assembly Bill 720, authored by Assemblymember Skinner, was signed by Governor Brown today. This bill allows the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.
Solitary Confinement Hearings at Senate, Oct. 9
Next week, the California Senate Committee on Public Safety will hold hearings on solitary confinement. The promise to hold hearings was one of the reasons for the end of the third Pelican Bay hunger strike.
1 p.m. - John L. Burton Hearing Room (4203)
INFORMATIONAL HEARING
SUBJECT: Segregation Policies in California Prisons:
Current Conditions and Implications on Prison
Management and Human Rights
Ashker v. Brown: Guest Post by Hali Ford
A long line of high school students filed into the courthouse at 2 o’clock. One attorney told me she had never seen such a turn out for oral arguments. Judge Wilken interrupted the attorneys’ appearances to welcome the high school students. She highlighted the importance of their attendance at a case involving such serious issues.
A group of Pelican Bay inmates seeks class certification to bring two claims against Governor Brown and CDCR. Under current CDCR protocol, tattoos, reading materials, associations with other prisoners, and other factors earn inmates “points” towards being “validated” as a gang member. Validated inmates are placed in solitary confinement, or, “the SHU” (secure housing unit), indefinitely. The inmates claim this “indefinite SHU time for constitutionally infirm reasons” violates due process. The inmates also seek to certify a “subset” of the class: inmates who have been in the SHU for longer than 10 years. This subset brings an 8th Amendment challenge, arguing that 10+ years in solitary confinement poses an “unacceptable risk to prisoners.”
Judge Wilken took issue primarily with the inmates’ method for defining the 8th Amendment class. A key question cannot be answered except through discovery: how many, if any, inmates have been in SHU for longer than 10 years for reasons other than gang validation? The inmates’ counsel stated that he suspects, but must determine through discovery, that no inmates have been in the SHU beyond 10 years for any other reason. Judge Wilken expressed concern about certifying the class without knowing the characteristics of its members with certainty. To bring a class action, the inmate group must satisfy the conditions of commonality and typicality. She also explained that the 8th Amendment test to determine whether punishment is cruel and unusual compares the severity of punishment against the gravity of the offense. The 8th Amendment balancing calculus would differ for the inmate who has been in the SHU for longer than 10 years because he murdered another inmate, for example, and the inmate in the SHU 10+ years for gang validation, and gang validation only.
Judge Wilken preferred to visualize the due process and 8th Amendment groups as a Venn diagram instead of an umbrella group and subset: all of the members of the due process group challenging gang validation in one circle, in the other circle, all of the 8th Amendment group members challenging 10+ years in the SHU, and in the overlap, those who have been in the SHU for more than 10 years for gang validation only. The inmates believe all of the 8th Amendment group members also fit within the due process class. That fact will be determined in discovery.
Neither party objected to defining the potential due process class as “all inmates serving indeterminate sentences at Pelican Bay SHU pursuant to Title 15 as of x date, on the basis of gang validation only.” For the 8th Amendment challenge, Judge Wilken suggested the parties amend the complaint once they have determined the number, if any, of inmates in SHU for 10+ years for reasons other than gang validation.
Litigating Solitary Confinement: Class Certification in Ashker v. Brown – Guest post by Brittany Stonesifer
Around a hundred people – family members, activists, lawyers, reporters, and even a group of high school history students – gathered yesterday outside the Oakland Courthouse to advocate an end to long-term solitary confinement in California. The rally and press conference was organized by Prisoner Hunger Strike Solidarity, a coalition that provided support to California prisoners engaged in a recent 60 day long hunger strike. With around 30,000 initial participants, the hunger strike centered around 5 core demands to end to the inhumane and unjust conditions of California’s Security Housing Unit (SHU) system.
The focal point of the prisoner hunger strike, Pelican Bay SHU, is also the subject of the lawsuit considered yesterday in Oakland. In Ashker v. Brown, a group of prisoners is suing CDCR and Governor Brown to secure an injunction against indeterminate SHU sentencing based on gang validation. The case, presided over by U.S. District Court Judge Claudia Wilken, is being litigated by Legal Services for Prisoners with Children (LSPC), the Center for Constitutional Rights(CCR), and other co-counsel from around the country.
Yesterday, Judge Wilken heard oral arguments on a motion to certify a class of plaintiffs in Ashker who would assert due process violations based on gang validation, as well as cruel and unusual punishment of those prisoners who have been in isolation for more than ten years. Granting the motion, under Federal Rule 23, would mean these claims would be brought on behalf of a large group of prisoners who have each suffered solitary confinement, rather than on behalf of individual plaintiffs. Among other things, Rule 23 requires that there are grievances common to all class members and that the claims of the named plaintiffs are typical of others in the group.
In yesterday’s oral arguments (see the motion for class certification here), Judge Wilken’s questions focused first on how the commonality of the class is affected by CDCR’s new gang validation pilot program. Specifically, since the commencement of the Ashker case, CDCR has created a Security Threat Group (STG) pilot program that it claims resolves the due process violations of the prior validation system.
Judge Wilken expressed concern that those prisoners sentenced to indeterminate SHU terms under the old validation system would constitute a different class from those validated under the STG pilot program. However, as CCR Attorney Alexi Agathocleous – who argued today on behalf of the plaintiffs – pointed out, CDCR has yet to provide any evidence that the pilot program addresses any of the due process issues raised in the complaint, such as being able to use the possession of artwork to sentence prisoners to indefinite isolation.
In addition to the due process claim, the lawsuit asserts that the 8th Amendment of the U.S. Constitution is violated when gang-validated prisoners are kept in solitary for more than a decade. Though the Ashker case defines these prisoners as part of a “subclass,” Judge Wilken questioned whether there were potentially prisoners who had been detained in the SHU for more than ten years who were serving determinate sentences.
It is worth distinguishing here that those sentenced to SHU terms can either serve set, determinate sentences for behavioral violations under Title 15 or be assigned indeterminate sentences on the basis of suspected gang association. Plaintiffs yesterday pointed out that it is unlikely that there is a separate class of prisoners who have been in SHU for more than ten years because, under Title 15, even the most severe rule violation – murder of a non-inmate – is punishable by a maximum of five years in SHU. (As an aside, the UN has statedthat solitary confinement in excess of 15 days amounts to torture.)
To follow the litigation of Ashker v. Brown – including Judge Wilken’s ruling on the motion to certify the class – and the Pelican Bay Human Rights Movement, visit LSPC, PHSS, or CCR.
Tonight, 7-8, KALW City Visions: Program on Reentry
This evening, 7-8, on KALW – please tune in!
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.
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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
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| 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.
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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.