BREAKING NEWS: CDCR To Ease Gang Restrictions

Reported an hour ago by the Associated Press:

Prison officials revealed new rules Friday that they say will make California the first state to recognize that inmates can quit prison gangs and put that lifestyle behind them, allowing them to escape the tough restrictions that gang members are subject to.

However, gang associates would have to steer clear of gang activities for about a decade to qualify, while gang leaders would have to behave for a minimum of 14 years.

The draft regulations made public Friday are the latest changes to rules that keep some gang members locked in special isolation units for years and have led to widespread inmate hunger strikes. A spokesman for a coalition of reform groups that backed the hunger strikers called the changes “woefully inadequate.”

The new regulations are an extension of a 15-month-old pilot program that has allowed gang members to get out of isolation units at Pelican Bay in far Northern California and other prisons without renouncing their gang membership.

Since the start of the pilot, the department has reviewed 632 gang members who were in isolation units. Of those, 408 have been cleared to be released into the general prison population and 185 were given more privileges but remain in isolation.

Those 2012 policies, which are being updated in Friday’s filing with the Office of Administrative Law, let the gang members and associates gain more privileges and leave the isolation units in as little as three years if they stop engaging in gang activities, and participate in anger management and drug rehabilitation programs.

Officials said that change was based on programs in seven other states. California is now the first to go a step farther by removing the gang designation entirely if the inmate continues to behave, said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, or CDCR.

CDCR gives reasons for the new regulation:

Despite the successes the CDCR has had in removing violent and disruptive STG affiliates from the general population settings of the institutions, the Department has recognized a need to evaluate current strategies and implement new approaches to address evolving STG trends consistent with security, fiscal, and offender population management needs. Fortunately, the inmate population reductions associated with Public Safety Realignment is affording CDCR the opportunity to reconstruct aspects of its STG policy that are consistent with successful models used in other large correctional agencies. The Public Safety Realignment will result in easing overcrowding and providing CDCR with more housing options to support this effort.

And here are the actual regulations, which define the step-down processes that are to be taken. The multi-step process of being cleared of gang affiliation (referred to in the regulations as STG – security threat group) is lengthy and features various monitoring options.

Solitary Confinement: What Could the Legislature Do?

Two months have passed since the joint legislative hearing held by the California Senate and Assembly Public Safety committees. At the hearing, lawmakers heard testimony from CDCR personnel, academics, and families of  SHU inmates.

At the hearing, several of the lawmakers, especially Tom Ammiano, Loni Hancock, and Nancy Skinner spoke up about their discomfort with SHU conditions. If this is truly the zeitgeist in the legislature, what can they do to modify the conditions?

It is highly unrealistic that California will do away with solitary confinement altogether. Short of extreme creativity, it’s hard to repurpose a maximum-security facility. Nor is it realistic to express political consensus that the institution is unnecessary. But there are various ways to mitigate our use of SHU units. Many of these are detailed in Confronting Confinement, a 2006 report by the U.S. Commission on Safety and Abuse in America’s Prisons. In the California case, the legislature could decide to:

1. Limit long-term solitary confinement to, say, ten years.
2. Monitor the entrance to solitary confinement. One possibility would be to limit solitary to punishment for infractions, but if the legislature doesn’t want to go that far, they could focus on demanding more evidence of danger before admitting someone to solitary confinement.
3. Monitor the exit from solitary confinement. The legislature could decide to abolish the debriefing process, or it could call for modifications, such as improving the criteria for establishing gang status.
4. Limit disciplinary measures. The legislature could flat-out forbid collective punishment, especially when race based.
5. Make a decision about double-bunking. I confess this one trumps me as well. Being locked up alone in a cell versus sharing it, in very close quarters, with a roommate not of one’s choosing? This could be what Keramet Reiter once referred to as “differently horrible.”
6. Add human contact, such as work with others or joint yard time.
7. Increase contact with the outside, including letters and visits.
8. Increase access to books and educational opportunities.
9. Set up parameters for safe and effective health care.
10. Seriously examine the quality of food and consider guidelines and improvements.
11. Take on the quality of staff training.

We will have to wait and see how things shape up.

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.

Discovery will involve interviewing more than 100 inmates.  The discovery deadline is set for late March, summary judgment June 19, and bench trial nov 3-21 bench trial.  Neither party expressed enthusiasm when Judge Wilken discussed settlement.

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.

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: Inmates End Hunger Strike

The hunger strike in protest of long-term solitary confinement has ended. KTVU reports:

The strike ended after two Democratic state legislators promised to hold hearings this fall on inmates’ complaints that gang leaders are often held for decades in isolation units.

A federal judge also recently gave authorities permission to force-feed inmates if necessary to save their lives. However, even the hard-core strikers had been accepting vitamins and electrolyte drinks during their fast.

“We are pleased this dangerous strike has been called off before any inmates became seriously ill,” Beard said in a statement. He said the department will continue to carry out changes in its policies over sending inmates to Security Housing Units that were started two years ago.

The changes include more limits on which inmates are sent to the housing units at Pelican Bay, where the strike began, and at other prisons. The policies also make it easier for inmates also can work their way out of the isolation units.

It’s been a very, very difficult two months for inmates and their supporters. In the course of the last two months we’ve seen some successes, one death, accusations that the strike was a “gang power play” and their rebuttal, an order to force-feed that implied that some inmates were coerced into striking, and finally, a promise to hold hearings on long-term confinement.

What will stay with me is the sense that I know what’s right, and as I see it, I also see shades of gray. I have no doubt–in fact, I know–that hunger strike leaders were gang members. That CDCR Secretary Beard thought that telling us about the gang affiliations will convince us that the strike is illegitimate and that these folks deserve their conditions is an insult to my morality and my intelligence, and perhaps to yours, as well. Of course these are folks who committed serious crimes and joined gangs. That’s why they’re serving long prison sentences. But does confinement also imply all these other indignities and aggressions? Decades of isolation under abysmal conditions, and an “out” path that is marred with lies and misinformation?

Where I see more shades of gray is with regard to the coercion/pressure concern, which I’m sure Judge Henderson had in mind when giving the force-feeding order (so as to give pressured inmates a dignified exit from the strike). But social movements seldom boast members who all share a 100% conviction in their path, and why should this one be different? The decision to risk one’s life, and to fight back with the only thing one has left–one’s body–is a very drastic one to make. Not everyone will share that level of conviction, and that’s okay. The extent to which pressure is put on people to comply is where the shades of gray come into the picture. My thoughts about this stem from the fact that I know Judge Henderson, through his decisions and public speaking, to be an upstanding, moral judge, who has been a friend and supporter to inmates for decades of his career. I want to believe that he would not have authorized such cruelty had he not known something about the internal dynamics of the strike that I wasn’t privy to. And yet, I am troubled. Medical professionals must have been frustrated and upset at the prospect of being asked to solve what is, essentially, a social and political problem via medical means. What a miserable situation.

And so, I am left frustrated and confused, and living in a state where a nonviolent struggle to achieve a fairly modest goal–making sure that segregation for 23 hours a day lasts “only” ten years–has ended with little to show for it, amidst misleading publicity and some serious doubts about some of the events and the internal dynamics. But there is one thing I know is true. Holding a human being, no matter his or her gang affiliation or former crime, alone, for decades, in a small cell, with no window of hope and change and no human contact, and providing him or her with abysmal health care under conditions that would render anyone insane, is wrong. It is wrong no matter what we are being told. The strike has ended, but the struggle must continue.

Same Sex Marriage and CA Prisons

The big news in the correctional world is that the CA assembly has approved Gov. Brown’s recent proposal to use $315 million of my money and yours to build private prisons. This is not the end of the story, however, because–

[a]pproval by the full Assembly would set the stage for a showdown in the Senate, where Democrats oppose the measure. They want more money spent on rehabilitation services and drug and mental health treatment so offenders do not end up back in prison after their release.

Meanwhile, Day 58 of the hunger strike brought a statement of frustration from the mediation team, who was encouraged to hear about the potential public hearings, but concerned for the strikers’ deteriorating health.

And, Assemblymember Tom Ammiano has submitted a query to CDCR regarding same-sex marriage for inmates. Here is the CDCR memo, verbatim, from scribd:

In other words, inmates are now allowed to wed non-inmates in CDCR institutions. There are two notable things about this: First, that inmates who are both currently incarcerated cannot get married. This is, presumably, a continuation of the previous policy, but since prisons are segregated by gender it becomes much more meaningful now that folks of the same sex can get married. And second, that chaplains may refuse to perform the ceremony on conscience grounds, but in that case CDCR will substitute the refusing chaplain with another officiant.

The no-marrying-already-incarcerated-inmates rules, which is presumably in line with previous policy, raises some interesting questions. What happens if two women, who are already married, both get prison sentences (say, for unrelated felonies)? Does CDCR have policies about whether they should be kept in the same facility or in different facilities? And, while inmates can’t marry each other, surely they can have relationships with each other, and so, why the prohibition?

Day 43: Strike in Calipatria Ends; Conditions Improve

The Los Angeles Times reports:

Inmate advocates said Calipatria Warden Frank Chavez met with protest leaders within that prison on Thursday and, while talking with state corrections officials in Sacramento by phone, agreed to most of their more minor demands. They include adding six channels, including ESPN and PBS, to the television lineup available in segregation units, as well as increasing the variety and amounts of foods available for purchase in the prison canteen.

The warden also agreed within two months to allow inmates in segregation to make a monthly phone call, said Kendra Castaneda, an inmate supporter.

Castaneda said Calipatria officials refused to negotiate on the core issues of the hunger strike — the state’s indefinite use of isolation units and informants to control prison gangs.

Corrections officials said the strike ended Thursday when 22 inmates resumed eating.