CDCR Medical Policy Regarding Hunger Strikers

More on the health concerns regarding the strike: Policy 4.22.2 of Prison Health Care Services, updated on September 29, 2011, details how inmates are to be treated during a hunger strike. Upon the beginning of a strike, participants’ baseline weight and height are to be established, and a follow-up spreadsheet is created. Prison authorities are to follow up on participants’ health and weight. The regulations emphasize respect for participants’ autonomy regarding their health (feeding plans are to be offered, not coerced), and allow force-feeding in two cases only: An emergency situation or an inability to provide informed consent.

According to prison visitors, clinicians are monitoring inmates to keep an eye for any who may begin to show signs of starvation, but so far there have been no concerns. As of Sept. 30, 3,376 inmates in six prisons are on a hunger strike. They have missed nine or more consecutive meals since Monday, Sept. 26.

Institutions with hunger strike participants are:

  • Calipatria State Prison
  • Centinela State Prison
  • California State Prison-Corcoran
  • Ironwood State Prison
  • Pelican Bay State Prison
  • Salinas Valley State Prison

May the State Force Feed Hunger Strikers?

The CDCR memos did not provide a clear answer as to whether the authorities will seek a court order to force-feed striking inmates should the strike last long enough to jeopardize their health. During the July strike

I got to think about this a bit this week when I got a phone call from a reporter from the Examiner, resulting in this story. The man in question is not taking part in the Pelican Bay solidarity hunger strike, and apparently this is the last in a long series of hunger strikes he has undetaken individually. I am unclear on the extent to which hospital personnel felt comfortable force-feeding him, but apparently the sheriff is seeking a court order to do so.

Apparently, there is no clear answer as to whether, legally, hospital personnel may force-feed a hunger-striking inmate, and under which conditions. This has come up in the context of a large-scale hunger strike in Ireland in 1981, and later in the context of Guantanamo in 2005. A 2007 note by Tracey Ohm provides a concise summary of the law in the matter. In the early 1980s, the courts had ruled that the state had no right to intervene with a hunger-striking inmate, and it could allow him/her to starve him/herself to death; however, just a few years later the court tried to draw a distinction between a strike aimed at death and a strike aimed at a manipulation of the correctional system, with a right to intervene in the latter. Ohm suggests that correctional institutions adopt a four-part standardized test, based on the principles in Turner v. Safley (1987):

  1. A “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it;
  2. the existence of “alternative means of exercising the right that remain open to prison inmates”;
  3. the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and
  4. the absence of ready alternatives is evidence of the reasonableness of a prison regulation. 

Cases decided after the publication of Ohm’s note, such as this Connecticut decision, this Illinois decision, and this Pennsylvania decision (also see this summary) have tended to allow prison authorities to force-feed inmates when there was imminent danger to their health or life. All decisions emphasize the need to grant a court order on a case-by-case basis. There doesn’t seem to be any California case law on the matter. This case may be the first time such an issue is tackled by California courts, and it’s worth following up not only because of the fate of the individual defendant, but because of the possible implications for Pelican Bay strikers and their supporters in other institutions.

Pelican Bay Strike, Day 6: CDCR Bans Lawyers and Mediators from Contacting Hunger Strikers

Press release from Prisoner Hunger Strike Solidarity:

With the hunger strike continuing to spread from Pelican Bay and Calipatria State Prisons to at least 6 other prisons, the California Department of Corrections and Rehabilitation has threatened to crack down on the at least 6,000 participants, including sending prisoners to solitary confinement. The CDCR also faxed expulsion orders to two mediation team lawyers, notifying them that they had been banned from all prisons pending an investigation into whether or not they had “jeopardized the safety and security of CDCR” institutions. Meanwhile, the prisoner-selected mediation team that has been trying to negotiate with the CDCR since the strike was initiated in July sent a letter to Gov. Jerry Brown, demanding a meeting and lodging their vehement objections to the actions of CDCR officials.

New Study: Decline in Support for the Death Penalty Among Californians

Souce: Gallup. Graph depicts national trends.

A new study conducted by Craig Haney of UC Santa Cruz finds that, while a majority of Californians still support the death penalty, there is a marked decline in the percentage of supporters compared with the previous extensive survey, conducted in 1989: Support has declined from 79% in 1989 to 66% in 2011. This trend is in step with the national trend (see Gallup graphic to the left). From the UC Santa Cruz website:

The proportion of adult Californians who view themselves as “strong” supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were “strongly opposed” to capital punishment 20 years ago, compared to 21 percent today.


“These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself,” said Haney.


For example, the poll revealed much greater concern about the possibility of executing innocent people: 44 percent expressed concern this year, compared to only 23 percent in 1989. In addition, the number of respondents who believe the death penalty is a deterrent to murder dropped from 74 percent in 1989 to only 44 percent today. Similarly, the number of people who did not believe that prisoners sentenced to life without parole would actually stay in prison until they died dropped to about 40 percent, compared to 66 percent who held that belief in 1989.

These findings suggest a series of political implications for the supporters of SB490, a voter initiative to abolish the death penalty in California expected to be placed on the ballot in 2012.

First, it appears that, as we have said before, criminal justice reform is often incremental. It is difficult to get a broad coalition of death penalty opponents on a platform of human rights, and the support of several parties, including, possibly, victim families and law enforcement personnel, depends on maintaining a strong option of life without parole. Doug Berman has recently made a strong argument that the strong push against the death penalty has the unsavory effect of bolstering life without parole. Berman’s 2008 paper on the topic masterfully argues that the Supreme Court devotes a disproportionate percentage of its energy to the minutes of the “machinery of death” rather than dealing with more other important criminal justice issues on its docket.

Second, Haney’s study confirms our observations about the change in persuasive anti-death-penalty rhetoric over time. Concerns about innocence and deterrence, rather than humanitarian concerns, drive much of the trend.

And third, humonetarianism has the potential of converting even more Californians to the opponents’ cause. Haney found, disturbingly, that

nearly half the respondents in the 2009 survey, compared to 54 percent in 1989, thought the death penalty is cheaper to implement than life without parole, although the reverse is true.

This misconception can be easily corrected by a well-designed campaign. If costs are, indeed, a springboard to reform in California, a solid argument comparing the costs of the death penalty to life without parole would go a long way toward broadening public support for SB490.

Pelican Bay Strike, Day 4: Strike Expands

The latest reports from family members, friends and supporters of inmates are that approximately 6,000 inmates in a variety of correctional institutions have joined the hunger strike. Also expressing solidarity are approximately 50 county inmates held in West Valley detention center, who are refusing jail food (but purchasing commissary food). I’m not sure whether the supporters, whose job assessing the size of the strike is admittedly difficult given the lack of data from CDCR, count county inmates among their striker numbers. If the figure is to be believed, the strike is approaching the previous strike in terms of number of participating inmates.

BREAKING NEWS: CDCR Sees Strike as Disturbance

Two memoranda sent out to all CDCR inmates by Scott Kernan, Deputy Director of Adult Operations, lay out CDCR’s approach to the strike.

The first of the two defines the strike as a “disturbance” and threatens serious consequences, including removal from general population and placed in the Administrative Segregation Unit. Moreover, the memo threatens “additional measures” including effective monitoring and management of “the participating inmates’ involvement and their food/nutrition intake, including the possible removal of canteen items from participating inmates.”
Kernan also raises the possibility that “day-to-day prison operations” may be impacted by the strike. By that he might mean visits, as it is mentioned that this might impact not only inmates, but their families.
The second memo includes a list of steps that CDCR has taken on behalf of the inmates. The “short-term items” include watch caps, wall calendars, exercise equipment, colored chalk, proctors for college examinations, and food services; the “mid-term action items” include a “comprehensive review of SHU policies”.
click to enlarge

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It remains to be seen what the ramifications of these memos might be in terms of CDCR’s actual response to the strike. During the July strike, CDCR decided not to force-feed inmates. 
As a reminder, the inmates’ core demands are:
1. Eliminate group punishment. Instead, practice individual accountability.


2. Stop forcing prisoners to confess to gang membership. Prisoners are being held in isolation until they “debrief” or give information on gang activity. Whenever torture is used to force confessions, it often produces false information and can endanger the lives of prisoners and their families.


3. Comply with the recommendations of the US Commission on Safety and Abuse in prisons and end long-term solitary confinement. In 2006, the commission said isolation conditions should only be used as a last resort.


4. Provide adequate food.


5. Expand and provide constructive programs and privileges for prisoners held in solitary.

We plan to address some of the issues pertaining to the hunger strike on our upcoming prison food panel on Food Day.

2010 CA Correctional Budget: Rehabilitation at Bottom of Priorities

Source: The Informant. Click to enlarge.

A recent KALW story examines the California correctional budget for 2010. The data does not accurately correspond to the data in CDCR’s “year at a glance” report for 2010. But the picture is not dissimilar: The budget hovers around nine billion dollars, with the largest percentage spent on salaries and a staggering amount on health care and only a fraction on rehabilitative programs.

The CDCR report highlights construction projects funded by AB900 as well as heralds out-of-state incarceration as positive moves to reduce overcrowding. Parole reform is also highlighted, especially decreasing caseloads of parole agents.

But there is a positive piece of news: The total prison population in California has decreased, for the first time in quite a while. This is true for both the female and male populations. Given the trend in recent years, it is hard to tell whether this means a swingback of the incarceration pendulum or a mere anomaly. It is, however, an encouraging piece of news. The decrease is most evident in younger age groups; there is an increase in the percentage of inmates aged 40 and over (which also explains the health care expenses). The trend of decreasing incarceration for drug offenses continues. More than 50% of admissions are still comprised of parole violators; new admissions for felonies account for about a quarter of admissions.

Regionally, Southern California accounts for 65.9% of the inmate population, the San Francisco Bay Area for 11.2%, and the remainder of the state for 22.9%.

The Three Strike population consists of 32,439 2nd Strikers and 8,570 3rd Strikers. A considerable percentage of Strikers are of advanced age.

California Should Regain Its Lead in Setting National Trends and Stop Building New Prisons and Jails

from California Progress Report

By Emily Harris and Isaac Ontiveros

Across the country, headlines show a new trend of nationwide prison closure. A recent report by the Sentencing Project notes that, to date, 13 states in the US have closed or are considering closing some of their correctional facilities, reversing a 40-year trend of prison expansion. States initiating prison closures include New York, Texas, Colorado, Connecticut, Georgia, Michigan, Florida, Nevada, North Carolina, Oregon, Rhode Island, Washington, and Wisconsin. Michigan, for example, has closed 21 facilities and has prioritized re-entry services for people returning to their communities from prison.
Fiscal crises have definitely fueled the trend, but reforms in sentencing and parole policies have also resulted in less demand for prison space. In turn, the closures have freed up millions and millions of dollars that could be used into rebuilding programs and services proven to keep people out of prison and in their communities.
California, unfortunately, is moving in the opposite direction. Despite an ongoing fiscal crisis in California, there are currently 13 costly prison and jail expansion projects moving forward using our states scarce resources, and we anticipate more construction to roll out under phase II of the notorious AB 900 legislation. AB 900 was signed into law in May of 2007, authorizing at least $7.4 billion in lease revenue bonds for the construction or expansion of our State’s prisons, jails and re-entry centers and marks the largest prison construction scheme in human history.
In May the U.S. Supreme Court issued a ruling in a lawsuit against the state involving deadly prison overcrowding. Specifically, the court upheld the ruling of a federal three-judge panel requiring California to reduce overcrowding in its prisons from nearly 200% to 137.5 % of its “design capacity” within two years. The court’s decision will almost certainly result in some of the most dramatic changes to the state’s prison system in decades. So far, the state’s plan for reducing the prison population relies heavily on shifting prisoners from state lockups to county jails, transferring more people to out-of-state private prisons, and building thousands more prison and jail cells.
As we see it, we could continue down this scary, shortsighted path and waste billions of dollars on prison and jail construction to comply with the Supreme Court ruling. But where will this end? How will we pay for the long-term operating costs? And what about the social costs? Will education, health and human services and our shrinking social safety net continue to be jeopardized to cover the bill for mass imprisonment?
The Supreme Court order and our growing budget crisis provide our state with a unique opportunity to change our approach to public safety. Instead of continuing to push forward these unnecessary and costly prison and jail expansion projects, now is the time to look to these other states that have safely reduced their prison populations by implementing basic and modest parole and sentencing reform. The nonpartisan Legislative Analyst’s Office bolstered that argument after releasing a report recommending that California reconsider its costly construction program.
A place to start would include amending or repealing three strikes law, expanding medical parole, utilizing compassionate release, paroling elderly prisoners and reforming non-violent property and drug sentencing laws. Recent polls show the majority of Californians support these simple solutions. However out of touch our Governor and other lawmakers seem to be, we’d wager that Californians would be willing to take even greater steps against further prison crisis. If we want the safe and healthy California we all deserve, we need to make smart, long-lasting decisions that put our state back in a position of national leadership.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Emily Harris is the Statewide Coordinator for Californians United for a Responsible Budget. Isaac Ontiveros is the Communications Director for Critical Resistance.

Pelican Bay Hunger Strike, Day 2: Parole, Snitch, or Die

Yesterday’s panel on the Pelican Bay hunger strike featured, among other speakers, the impressive and insightful Keramet Reiter, a PhD candidate at UC Berkeley whose dissertation examines the history and development of the supermax. Reiter’s piece Parole, Snitch, or Die, is a concise history and thorough analysis of California’s supermax prisons and their discontents. It makes for an excellent read and I can’t recommend it enough. Using a combination of quantitative data and interviews with CDCR officials, Reiter lays out the process against which the inmates are protesting: the little-studied process of paroling through “snitching” and debriefing.

While, initially, at inception the idea behind the supermax was to handle prison violence by removing gang leaders from general population, this design has gone wrong. There is no evidence of a decline in violence as a result of using supermax incarceration and/or SHU units. Moreover, the isolation was never intended to become indefinite. However, Reiter’s data suggests that “many supermax terms are indefinite, providing few ways out, and. . . the average term is longer than eighteen months at Pelican Bay.” While the maximum lengths of stay in the SHU have declined between 2005 and 2007, the average length has steadily increased.

From its inception, Pelican Bay raised concerns that it would be excessively used. Today, inmates with gang ties are indefinitely assigned to the SHU units. The definition of gang membership is loose and vague, and therefore “the validation process is rather discretionary; any documentation of potentially illegal group activity could lead to gang validation.” Disciplinary offenses, leading to definite terms at the SHU, can range from attempted murder to spitting on an officer.

Has lockup at the SHU reduced violence? Not necessarily, as the data suggests. In fact, comparing levels of violence in Pelican Bay and Corcoran with that of other high-security institutions without supermax units suggests that “the supermax units might actually be aggravating problems with violence.”

There’s a lot more in the piece and I recommend reading it in its entirety. We will continue reporting on the supermax, solitary confinement, and the strike, for the weeks to come.