A Response to CDCR Secretary Beard, by Caitlin Kelly Henry

In a recent OpEd, CDCR Secretary Beard, defends his agency’s use of torture, and justifies it by vilifying and dehumanizing some of its victims. Conditions in CDCR’s SHUs meet international definitions of unlawful torture. Sensory deprivation is torture. Prolonged isolation is torture. California, unlike most states and nations, refuses to recognize that it is both unlawful and poor public policy to punish people with prolonged isolation. Though no other jurisdiction appears to deny that these practices constitute solitary confinement.

These conditions cause permanent physical and psychological effects. As an attorney and academic, I have conducted over 60 interviews with people sequestered in SHUs, and have witnessed the physical and psychological effects of isolation. Having recently visited strikers, I can attest that as a result of their non-violent demonstration, they are experiencing irreversible and life threatening effects that will only worsen if CDCR and Governor Brown do not take action immediately.

Hunger and work strikes by disfranchised people, who have little to leverage but their bodies, have earned a dignified and noble legacy in human and civil rights movements. The last three California prison strikes have succeeded in shining light on atrocious living conditions typically shielded from the public behind prison walls.

The OpEd misrepresents CDCR’s de-jure policies, and avoids addressing its de-facto policies, which arise from prison staff’s vast discretion in policy interpretation and execution. The OpEd attempts to narrow the discussion to CDCR’s treatment of the sub-group of people staff accuse of being affiliated with gangs and focus on the strike’s second demand. However, the other four demands, concern issues affecting all prisoners in solitary, many of whom are never accused of gang activity.

CDCR continues to arbitrarily discipline and move people to solitary confinement without adequate due process, whether for a determinate term (though people are often held after the term’s end) or indeterminate term. Currently, CDCR is issuing rules violations to hunger strikers simply for not eating, and charging participants and non-participants with “gang related activity” for showing support for the strike. These violations can be used to send people to the SHU, keep them there, or deny people post-conviction relief (parole, prop 36 re-sentencing, etc.). To issue so many on such specious grounds at a moment when CDCR is mandated to release 10,000 people is emblematic of the due process violations the strike seeks to address.

As CDCR moves people to or within the SHU, staff have denied people access to their property. This includes placing people in a cell with a mattress, but no sheets or blanket, for days on end. Pelican Bay SHU cells have no windows or skylights, and the murky slits in the concrete at Corcoran can hardly be called windows. Light comes from a fluorescent bulb that is never shut off.

Especially since the strike’s announcement, CDCR has routinely denied people the ability to leave their cells for weeks on end, whether to shower, use the “yard” (either a metal cage or a small room with four concrete walls but no roof), or access the law library to meet court deadlines. With no access to the yard, some people exercise in their cells…but if they do so at the same time as others, the exercise is labeled as gang activity.

Access to other in-cell activities – like television, radio, books, or education – is contingent on having funds. Funds require either work (which many SHU inmates are prohibited from) or contacts on the outside. In the OpEd CDCR lauds how its “[r]estricting…communication…has saved lives both inside and outside prison walls” yet claims people can send and receive letters and visit every weekend. In reality, CDCR’s extreme prohibitions and restrictions on phones, letters, and visits destroy lives by interfering with constructive family and attorney communications. This flies in the face of correctional best practices, which evidence that maintaining community ties decreases recidivism and supports reentry. As a rule, SHU inmates are also denied reentry-facilitating activities, such as interaction with other people in religious service, therapy, classes, or meals. Since the strike CDCR has even confiscated books, mail, TVs and radios.

Governor Brown and Secretary Beard must cease their deliberate indifference and end the standoff by meeting the five demands.

Caitlin Kelly Henry, Esq.
Attorney at Law, Adjunct Faculty, UC Hastings College of The Law
P.O. Box 641050, San Francisco, CA 94164
(510) 277-2025

Hunger Strike, Day 30: Beard’s Article and Community Response

The hunger strike is now entering its fifth week. I’m still on vacation, but didn’t want this day to pass without pointing out Jeffrey Beard’s take on the strike:

We are talking about convicted murderers who are putting lives at risk to advance their own agenda of violence.

Here’s Dan Walters’ commentary.

There are also some important statements on this Facebook page to counter Beard’s commentary. I reproduce verbatim Tom Ammiano’s:

I have read Secretary Beard’s claims in the LA Times and I have visited the SHU. On the one hand, the CDCR told me its isolation policies have put a stranglehold on gang leaders’ control. On the other hand, now they say gang leaders are calling the shots in the hunger strike despite their isolation. Which is it? They told us everyone in the SHU was a validated gang member, but when they reviewed cases, they cleared scores of prisoners of gang affiliation. We find it difficult to take CDCR’s claims about the hunger strike at face value. It would be easier to know if prison media access policies were better, as would have been the case under my bill vetoed by the Governor last year. Even so, one thing is clear: The isolation policies are of dubious benefit and they are an international embarrassment. I realize these prisoners have been convicted of terrible things, but I don’t have to believe everything they say to know that we must change our correctional practices. Taxpayers should not be funding indefinite isolation that is condemned in other countries as a human rights abuse.

Hunger Strike, Day 28: CDCR Mediating with Hunger Strike Representatives

Hunger strike supporters in Sacramento. Photo credit:
Melanie Mason for the Los Angeles Times.

The Los Angeles Times reports:

California’s prisons chief has agreed to meet for the first time with advocates for inmates who are in their fourth week of a hunger strike over conditions in solitary confinement.

“It’s progress,” said Ron Ahnen, president of the Oakland-based group California Prison Focus, which publishes a newsletter circulated to thousands of state inmates that hunger strike organizers used to broadcast their protest. 

Ahnen is among a small group of activists set to meet Friday with Jeffrey Beard, Gov. Jerry Brown’s appointed head of the Department of Corrections and Rehabilitation. Other expected attendees include a representative from the American Friends Service Committee.

Meanwhile, an interesting Bloomberg piece by Steven Greenhut compares Brown’s we-don’t-have-a-prison-crisis stance to George Wallace’s resistance to school desegregation.

Jerry Brown, the quirky progressive governor, is defying the orders of three liberal federal judges to release thousands of criminals from the state’s prison system in order to relieve chronic overcrowding. The rhetoric is growing more heated as the state defies a special judicial panel that last week rejected the governor’s attempt to delay the releases and used harsh language in doing so: “Despite our repeated efforts to assist defendants to comply with our Population Reduction Order, they have consistently engaged in conduct designed to frustrate those efforts.” 

In picking up the states’ rights banner, Brown finds himself being compared to Alabama’s segregationist governor, George Wallace, who in 1963 defied a federal order to desegregate the state’s schools. But some see Brown as a hero. 

In California, the federal government might order marshals to open the cell doors and Brown could stand in a cell, argued Los Angeles Times columnist George Skelton. “Wallace was shamefully standing in the schoolhouse door trying to protect a university’s bigotry from integration by black students,” Skelton wrote. “Brown would be heroically protecting citizens from thugs.”

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Props to Caitlin Henry for both links.

CCC Field Trip: Wrongful Convictions in Ecuador (and, SCOTUS tells Jerry off)

By now, many readers have already heard the news: Gov. Brown’s plea to modify the release plan and avoid releasing 10,000 inmates per the Plata mandate has failed in the Supreme Court. Justice Kennedy authored the decision.  Law enforcement is already grumbling.

I’m on Quito, Ecuador, on vacation and don’t want to get aggravated, so if you like, go read Scalia’s dissenting opinion for yourselves.

 Quito is a beautiful high-altitude city in the shadow of Mount Pichincha, with amazing art, colonial architecture, and marvelous parks. And, of course, as one does, the first thing I did this morning was read the local paper, El Comercio, which featured this amazing story about a wrongfully convicted man and his post-exoneration life.

Here’s the bit that caught my eye:

Según datos de la Defensoría Pública, el 65% de personas apresadas recuperó su libertad porque no se hallaron pruebas en su contra. Estos datos fueron levantados desde el 2007 hasta el 2010.

(According to data from the Public Defender, 65% of arrested people were freed because there was no proof against them. These data was collected between 2007 and 2010. My translation–H.A.)

In fact, the article notes that wrongful convictions are so common that the Public Defender’s office has a psychological department dedicated to help exonerated people deal with the stigma and reclaim their lives.

Expect more reports on the Ecuadorian justice system.

Crime, Incarceration, and the Human Spirit: On Billy Sell and the Escape from Alcatraz

Frank Morris, Clarence Anglin, and John Anglin, courtesy
the BBC UK.

Billy Sell’s tragic death yesterday, ruled a suicide by CDCR, raises some disturbing and urgent questions. How many such casualties will it take for CDCR to take the inmates seriously? We are on Day 21 of the hunger strike and there is serious concern for inmates’ well being, especially those of them who are aging and infirm. Their physical condition is being monitored. Conditions in the SHU debilitate and harm not only people’s mental health, but their physical constitution. It is admirable that, under these circumstances, inmates are committed to deprive themselves of food and drink. And if being prepared for the ultimate sacrifice, because a life of torture and indignity is worse, is not a good reason for CDCR to reconsider its position on isolation, I really don’t know what is.

I wonder how much coverage Sell’s death will receive in the mainstream media. Any effort to honor and remember his honorable sacrifice in the struggle for better incarceration conditions is likely to be blighted by ignorant commentary negating its value because, after all, he was doing time in prison, and therefore he must have been a very bad person, or worse, not a person at all. This is the same pervasive thinking that leads people on the outside to think that inmates are somewhat coddled by what folks who are not in the know perceive as “free health care.” This dehumanizing attitude means not only that people can be disinclined to stand side by side with the hunger strikers and demand better conditions for them, but also that they could completely miss the heroic aspect of the struggle and not find anything admirable in it.

The tragic news of Sell’s passing were particularly poignant for me yesterday, as I received them after completing my sixth successful Alcatraz crossing, which made me think about sacrifice and heroism within walls. Every time I jump off the ferry near Alcatraz and start swimming toward San Francisco I take a few moments to look behind my shoulder. In the first ten minutes of the swim it seems as if The Rock is not getting any smaller. And then, I think about the many documented attempted escapes from Alcatraz, and particularly about Frank Morris, John Anglin, and Clarence Anglin, who in 1961 plotted (with Allen West, who could not join them due to technical difficulties) the most daring, and likely successful, escape through the ventilation ducts, ingeniously using dummies and a raft.

More than fifty years after the escape, the file remains open, and among the thousands of athletes who attempt Alcatraz crossings there are many, like yours truly, who are convinced that Morris and the Anglin brothers made it safely to shore. I like to think of them, now very old men, sitting in a suit and a beret or a fedora at a cafe in North Beach, sipping a strong espresso, reading the Chronicle and chuckling quietly to themselves.

To them, the frustration of looking back and seeing The Rock looming dark and threatening must have been fraught with terrible fear and apprehension, compounded by the serious concerns about their welfare once they got to shore. Would they suffer hypothermia? Who would help and shelter them on the outside? Where would they get money, and how could they avoid being recaptured?

Time has been kind to Morris and the Anglin brothers. Millions around the world admire and respect their courage, ingenuity and bravery. But they were not saints. Morris’ record included daring robberies, and the Anglin brothers robbed a bank (with a toy gun.) They received lengthy sentences and perhaps, to the average citizen in the early 1960s, would appear unsympathetic, dangerous, and undeserving of respect. Just as some people may be thinking about today’s hunger strikers and their struggle.

But crime and criminality do not negate the value of the human spirit, or its ability to soar in courage and conviction. Last week many of us saw Fruitvale Station in the theaters and enjoyed Michael Jordan’s humanizing rendition of Oscar Grant, a man who did not live a grand life of achievement, but rather a life of fatherhood, flawed partnership, and teetering between drug dealing and an honest day’s work. And we cried for him, and we appreciated the ember of humanity within his soul, because it is also in ours, and we wept when that ember was extinguished by a gunshot. Billy Sell’s death teaches us a related, and perhaps more important, lesson. It’s not just that each and every life is precious and imbued with intrinsic value. It’s also that the human spirit does not die if someone has broken the law. Indomitable courage, initiative, creativity, commitment to one’s values, perseverance, and the yearning for personal freedom, are as admirable in prison as they are on a freedom ride or at a protest in the park, and perhaps more so because of the risk of retaliation and mistreatment, not to mention death. There are courage and bravery and principled positions behind walls. There is much there that we can find inspiring and respectable, even as there is plenty there (as on the outside) that we would find petty and deplorable.

May Billy “Guero” Sell’s memory not be in vain, and as generations of athletes are inspired by Frank Morris and the Anglin brothers, may generations of activists and advocates within walls and on the outside honor his sacrifice with an undying struggle for dignity.

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Props to Jonathan Simon, whose conversations with me last year inspired this post, to Caitlin Henry, whose work on behalf of the strikers inspires me daily, and to Chad Goerzen and Rhett Aultman for talking to me yesterday about Alcatraz and the power of myth.

Emergency State Appeal of Plata Before Supreme Court

Justice Kennedy, the deciding voice in Brown v. Plata, is to tackle overcrowding once more, in responding to an emergency appeal from Gov. Brown to block the Plata panel to release more inmates and ease overcrowding. The L.A. Times reports:

U.S. Supreme Court Justice Anthony M. Kennedy is in a position to decide — again — whether California’s overcrowded prisons must release more than 9,000 inmates by the end of this year, but at the risk of sending some violent criminals back to the streets.

. . . 

Gov. Jerry Brown is now asking Kennedy and the high court to block a pending order from a special three-judge U.S. District Court panel that calls for releasing 9,600 more inmates by the end of the year.

In the emergency appeal, Brown’s lawyers say the state has spent $1 billion to upgrade its prisons and improve the medical care of its 119,000 inmates.

In a brief filed late Monday, the state’s lawyers said most of the prisoners who are nonviolent offenders are being kept in county facilities. Most of those who would be released now are classified as moderate- to high-risk inmates, the state said.

“Unless stayed, the three-judge court’s order will release offenders with a history of serious or violent offenses who are very likely to commit more serious crimes,” the lawyers said.

Because Kennedy oversees emergency appeals from the West Coast, Brown’s request went to him. The justice could act on his own or refer it to the full court. But either way, the decision is likely to rest with Kennedy, a California native. The four liberal justices joined his 2011 opinion in the case, and the four conservatives dissented.

Gov. Brown Reveals Plan to Comply with Plata Mandate

A gym at the Deuel Vocational Institution in Tracy
emptied of triple bunks. Photo credit AP.

Yesterday, Gov. Brown revealed the State’s plan to comply with the Supreme Court’s mandate in Plata. The Greenwich Time reports:

Options in the state’s plan include:

— Granting more early release or “good time” credits to inmates, including second-strike inmates who have serious prior convictions.
— Paroling elderly and medically incapacitated inmates who are deemed unlikely to commit new crimes.
— Expanding the number of inmate firefighters by letting some serious and violent offenders participate.
— Increasing the use of drug treatment centers.
— Paying to house more inmates at county jails with extra space, and possibly at private prisons within California.
— Slowing the return of the 8,400 inmates who are being housed in private prisons in three other states at an annual cost of about $300 million.
— Adding space for 1,700 sick and mentally ill inmates when a new $840 million treatment facility opens in Stockton this summer.
— Freeing a projected 900 inmates because voters in November softened the state’s tough three-strikes lifetime sentencing law for career criminals. Proposition 36 changed the law to require that the third strike be a violent or serious felony and lets third-strikers with lesser offenses apply for shorter sentences. The administration rejected a proposal to release about 2,800 eligible inmates without court hearings.

The administration argued against many of the proposals even as it presented the options to the court in a series of legal filings.

There don’t seem to be many surprises here; in essence, the plan follows standard paths to decarceration. But it is also important to note that CA intends to slow down the rate at which it will bring back inmates held out of state in private institutions.

The other thing that is not surprising is the state’s tendency to speak in two voices at once every time these plans are discussed. The message is: We’ll comply, so as not to be held in contempt, but we don’t like this one bit, and are concerned about the implications for public safety. By now, Gov. Brown’s grumpy rhetoric – there’s no crisis, gyms are empty, everything’s fine, inmate’s lawyers and court-appointed masters are getting rich on taxpayer dollars, etc etc – should be familiar to regular readers. But the contempt threat, rarely made in the context of federal litigation, seems to have upped the ante.

It’s also notable that CA intends to expand its fire camp program as a plan for decarceration. Any readers interested in learning more about fire camps, and about the difference in conditions, demeanor, and interpersonal relationships between prisons and fire camps, I highly recommend Philip Goodman’s work, such as this terrific article.

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Props to Caitlin Henry for the Greenwich link; I am surprised not to see this covered in CA periodicals.

Three-Judge-Panel: State Must Comply with Population Reduction Order; Jerry Threatened with Contempt

Image from CDCR’s three-judge-panel page.

A decision came out yesterday from the three-judge-panel that issued the original Plata v. Schwarzenegger decision: The state must comply with the original order. Moreover, should it not do so, it will be held in contempt. The L.A. Times reports:

In a blistering 71-page ruling, the jurists rejected Brown’s bid to end restrictions they imposed on crowding in the lockups. The state cannot maintain inmate numbers that violate orders intended to eliminate dangerous conditions behind bars, they said.

Brown and other officials “will not be allowed to continue to violate the requirements of the Constitution of the United States,” the judges wrote.

“At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court,” they said. “In fact, they have blatantly defied them.”

The judges gave the state 21 days to submit a plan for meeting the population target by the end of the year. Administration officials said they would appeal the decision to the U.S. Supreme Court.

The piece pretty much speaks for itself, but I do want to say something about this to readers wondering why the state hasn’t been held in contempt so far, which is a question I get asked a lot when I talk about this. I think it’s important to understand that, while federal courts–rather than state administrators–have pretty much been the go-to place for inmate rights suits, courts are not natural policy designers. The judicial system is built on the premise of case-by-case arbitration, with an outcome that “takes sides” in a dispute between two parties (Martin Shapiro calls this “the logic of the triad“). Their ability to generalize and supervise is limited. The ways they perceive the world, discursively, are limited to assessing whether state agencies behaved in a way that violated constitutional standards – yes or no. Orders, supervision, revisiting issues–courts do all of those, but they do them because they have to. The hard work has to be done primarily by the state. Which is why, whenever possible, having a consent decree is a priority, and if that is impossible, it is at least useful to get some cooperation from the state and refrain from steps that will escalate the animosity between the state and the courts.

The escalation here–actually threatening the Governor with contempt–is understandable if one considers what Jerry has done in the last few weeks. He has attacked the special masters and receiver, and even griped about attorney’s fees for the inmates’ advocates. When seen in the context of this public relations crusade to besmirch the other side and the court-ordered mechanism, a threat of contempt is a logical response. And of course, the state retaliates by threatening an appeal to the Supreme Court. This is a collision course that will not end well, and it would behoove the Governor, and the state representatives, to consider growing up and collaborating with the courts. As things stand now, everyone has plenty to lose.

More From Jerry: Federal Prison Oversight a Waste of Money?

Photo credit Randall Benton for the Sac Bee.

After Governor Brown’s public comments about attorney’s fees for inmate rights’ litigators – on which we had plenty to say here and on The Recorder – he’s back to it this morning. The Sac Bee reports:

“During the life of these lawsuits, the prison health care budget has gone from $700 million to $2 billion,” Brown said in an interview with The Bee, his first on the issue since the state filed court documents in January seeking to regain control of its prisons. 

“That money is coming out of the university, it’s coming out of child care. It’s a situation you wouldn’t dream anyone would want.” 

The governor’s comments came as lawyers prepare for a battle in Sacramento federal court later this month over whether the state is providing a constitutional level of mental health and medical care for inmates. Oral arguments are scheduled for March 27 on California’s motion to terminate oversight of mental health care by U.S. District Judge Lawrence K. Karlton. 

Another motion by the state, also filed in January, seeks to vacate or modify an order by a specially convened three-judge court to reduce inmate population. Oral arguments on that motion have not yet been scheduled. 

Really, Jerry? Really? You reap what you sow. Why is the prison health care budget so costly? It’s true that mistreating and ignoring people’s medical plight is cheaper than actually treating them, but perhaps if treating them is so expensive then one should have considered whether so many of them should have been in prison in the first place. And whose fault is it that prison expenditures are higher than what we spend on education and child care? Complaining about this given that the government is the culprit is absurd, offensive, and inflammatory.

Starving the Messenger

It strikes me that yesterday’s post about Governor Brown’s gripe against the Prison Law Office and Rosen, Bien, Galvan and Grunfeld requires more blogging attention, because it hits at the heart of the problem: We shouldn’t begrudge people who work for human rights for getting paid to do their work. We should be grateful that they are willing, and able, to do it effectively.

I invite you, gentle reader, to revisit the figures offered by the Washington Post regarding the expenses on Plata/Coleman. The Prison Law office is reported to have received $8.3 million in attorney’s fees; Rosen, Bien, Galvan and Grunfeld have received $19 million. But, while it might be convenient for Brown to focus on these expenses, there were other lofty expenditures on this case, including the salaries for Brown’s own attorneys and for the people appointed by the court to mix his mess of a correctional health care system, which he conveniently ignores.  The expenses related to the federal receiver were $7 million, and the expenses related to the special master in charge of the mental health system were $48.4 million. And of course, state attorneys, and private attorneys hired by the state, also need to be paid for their services. The Justice Department salaries amount to more than $4 million, and the private attorneys hired by the state were paid $15 million.
The conclusion from the numbers is that Governor brown is misled at best, and misleading at worst. Yes, the lawyers for the inmates won attorneys’ fees – as they well deserve for their important service. It would be naïve to expect so many people, on both sides of the litigation, to commit so many hours to these cases as volunteer work. As Governor Brown no doubt knows, this is how civil rights cases are litigated in this country: Relentlessly, and by taking a financial gamble that the court will eventually see the serious civil and human rights violations for what they are, the inmates will win, and their attorneys will recoup their costs as well as make a well-deserved living.
But the remark is also infuriating in principle. Nonprofits that help those to whom the state turns its back are important watchdogs in the struggle to humanely treat the weakest links in our social chain. And solid, prosperous law firms who devote a substantial amount of their human and material resources to civil rights litigation, rather than pay lip service to the idea of pro bono, should be commended and encouraged.
As a coda, it would behoove Governor Brown and his number crunchers to get a broader perspective. In 2012—the year at the end of which the state began realigning its non-serious offenders to county jails—the total budget for the California Department of Corrections and Rehabilitation (CDCR) was $10 billion dollars. Out of this amount, $2 billion was spent on correctional health services, to mixed results. These expenditures dwarf the dwindling funds spent on inmate vocational and educational programming. They also dwarf the expenses of the lawsuit itself. Governor Brown is to be commended for advocating fiscal responsibility, but perhaps some of CDCR’s expenses could be lowered if Californians had abolished our costly and broken death penalty years ago, or if anyone had considered the possibility that some the many people we are now diverting to county jails need not be incarcerated in the first place. Perhaps retooling parole as an instrument of hope, rather than a revolving door of recidivism, could have lowered the price tab. Perhaps our nineteen-year affair with the Three Strikes Law brought into prison thousands of people, many of them for nonviolent offenses, for disproportionately lengthy sentences that encumbered us with their health care expenses. And perhaps providing people with skilled, prompt and humane health care could prevent the many iatrogenic health problems that plague our systems and jails and save a few nickels and dimes as well.
As to the accusation of prolonging litigation in this matter, perhaps the fault for that lies with the state’s stalling techniques in what could amount, under a less forgiving judicial system, to contempt of court. Complying with the court mandate, which left the state ample leeway in choosing its course of action, would also be a way to save money.
The California health care cases shone a bright light on one of our state’s most invisible populations and its plight. We would not have known that our tax money was being wasted on abysmal medical treatment to a population doing time (sometimes excessive and sometimes unnecessary) under overcrowded, unsanitary conditions, sleeping in triple bunks in converted gyms, and receiving medical attention in cages. Like Governor Brown, I am pleased that serious steps have been taken to cure this disease. But when someone draws our attention to human rights violations, we don’t shoot the messenger, nor do we complain about his salary. We thank them for opening our eyes.