Pelican Bay Strike Panel Opening Remarks

Today’s panel on the Pelican Bay hunger strike was well attended and prompted some interesting discussion. A few people emailed asking me to post my opening remarks on the blog.

Good afternoon,

Don’t you know? Talking about a revolution, it starts like a whisper. But this panel is much more than a whisper. It is a strong, loud cry against a dehumanizing, cruel incarceration regime that demeans our society in its entirety. To shed light on these practices, a number of Hastings student organizations have invited former inmates, family members of inmates, and legal professionals, who will discuss this afternoon one of the most exciting and electrifying instances of protest against the evils and inadequacies in our correctional system.

The strike started, and is resuming, at a momentous time in American criminal justice and in California in particular. The State of California is still reacting to the Supreme Court’s decision in Brown v. Plata, affirming a federal three-judge panel decision that population reduction is the only way to combat a prison medical system beneath minimal constitutional standards.

As impressive as the Plata decision is, I suspect several broader developments created the fertile ground upon which it sprouted. For many years, it would be very hard to envision a Supreme Court with this political composition approving such an order. Prisons have been, for decades, invisible cities, out of the public mind and eye, and what happened within them, be it cumbersome ineffective rehabilitation programs or plantation-style farms rife with racial cruelties, interested very few people beyond practitioners and scholars. Supermax institutions and SHU units were particularly immune to critique, because for very long—too long—the public was kept in the dark about the realities within walls, and when these institutions did make headlines, the public was told that the people held there for 22 and a half- hour days in isolation were subhuman, violent beings who deserved such treatment. Ironically, solitary confinement was one of the first incarceration practices used in the early penitentiaries of the 18th and 19th centuries. The solitude was designed to make inmates engage in penitence and reflection. The practice has remained as extreme and harmful as it ever was, but it changed in two important ways. First, the rationale for solitary confinement is no longer penitence and rehabilitation, but mere incapacitation and risk management. And prison sentences today are exponentially longer than they were in the early days of prisons. These two factors – the growing disinterest in reform and change, and the extended periods of time in which people are subjected to solitary confinement – make this practice even more perverse now than it was at its inception. Social scientists researching the effects of such regimes are on agreement regarding the immense harm of placing humans in
solitary confinement.

In reigniting the fire of protest against the deplorable conditions at SHU units, about which you will soon hear from our panelists who have experienced them as inmates, supporters, and family members, Pelican Bay inmates join an honorable tradition of inmate-initiated struggle and reform. A month ago we celebrated the 40th anniversary of the Attica uprising, a defining moment in criminal justice politics. In the 1960s, Fred Cruz and his friends in Texas penitentiaries brought the Texan correctional giant to its knees and dismantled a cruel, dark system through habeas writs written on smuggled toilet paper. And in California, the radical prison movement, beginning with Caryl Chessman’s writings and continuing with Malcolm X, Angela Davis, and George Jackson, has generated attention to the cause of inmates. Most recently, inmates in Georgia engaged in a strike against cruel, inhumane correctional practices; the system they raised their voices against is the same system that, last week, executed a probably innocent man. The execution of Troy Davis made millions of people rise in support and decry an outrageous miscarriage of justice. It is possible to make allies against inhumane regimes that exceed what is psychologically and humanly tolerable. The strength of nonviolent protest coming from people whom the public has been accustomed to read about as subhuman, violent beings engaged in rioting and cruelty, is overwhelming.

Some feel that the time for such activism has passed; that the 1960s and 1970s presented a unique moment in American history, in which civil rights movements and the Warren Court created the perfect storm for radical prison movement. For many decades since, the combination of law-and-order political rhetoric from actors across the entire political spectrum, and managerial warehousing practices infected with rampant profiteering and privatization, created a reform-resistant wall. But, as I mentioned earlier, this is changing before our very eyes. We live in extremely difficult financial times. The public is attentive to the message that our out-of-control correctional monster is financially unsustainable. The practices that Pelican Bay inmates are protesting are the product of a hungry, ever-expanding carceral world that we can no longer afford—morally, organizationally and financially. Public opinion is changing and, have no doubt, decisionmakers are listening and responding. The state is currently engaged in a process of realignment, shifting much of its prison population from state prisons to county jails. The parole system is under revision. And, for the first time in forty years, last year the U.S. prison population decreased. These dramatic changes cannot be underestimated.

This act of protest is, therefore, occurring at a unique historical moment in which taxpayers, practitioners and officials may be more open to the possibility of reform advocated for through nonviolent means. It is, therefore, lamentable that the July hunger strike received so little media coverage in mainstream newspapers. But we are here to change that. Our hosts this afternoon are taking an important step to change this and break the silence.

Audience members may disagree about the dangers of violent crime and the means to fight it. If you are agnostic about the merits of this hunger strike, thank you for coming here this afternoon with an open mind willing to become informed aboutthis side of the debate. Listening to the people who are the most disenfranchised and the least listened to in the American political arena is an important experience. And if you are convinced that this way of doing things must be abolished, that solitary confinement and debriefing should end, thank you for coming here today to do something about it. Finally, the tables are starting to turn.

I wish you all an interesting and informative afternoon.

Are Gang Members Special? From the California Supreme Court to Pelican Bay

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.