Behind the Hunger Strike

Todd Ashker. Photo courtesy CDCR,
reproduced from New York Magazine

In the aftermath of the hunger strike against conditions in the SHU, we are witnessing legislative interest in improving conditions in solitary confinement. We recently reported on CDCR’s changes to gang restrictions, on the legislative hearings in Sacramento, and on Tom Ammiano’s proposition to limit gang-related SHU stays to 36 months. At this point, Benjamin Wallace-Wells’ article in New York Magazine, The Plot from Solitary, is particularly welcome. The article is so interesting, thorough, and multifaceted that I strongly recommend you read it in its entirety. Here are just a few highlights that interested me the most:

The article does a very good job juxtaposing the position of inmates and their supporters to that of CDCR staff.

From the beginning, even the most basic matters about the strike—what Ashker and the others were after, why so many people joined them, what the strike ­demonstrated—were opaque, and profoundly disputed. To the prisoners and their supporters, this was a protest against barbaric treatment, and the SHU was both an outrage in itself and a symbol of the arbitrariness and brutality of the prison system across the nation. The strike’s leaders had challenged the SHU’s constitutionality in court, arguing that the limits it placed on social interaction violated the Eighth ­Amendment’s prohibition on cruel and unusual punishment, and they had watched closely as a few other states, some pressured by prisoners and others mandated by judges, had de-emphasized solitary confinement. They believed they were part of a human-rights movement. But the prison officials saw something far simpler at work: a tactical maneuver by the gangs, acting in collusion, to end a system that had made it much more difficult for them to operate as they pleased.

We also get fairly in-depth backgrounds of the Short Corridor strike leaders, complete with their lives before incarceration and some information about their standing vis-a-vis their own gangs, which adds to the complexity of the organization. And, we also get a blow-by-blow description of how news of the strike were transmitted across SHU cells:

Jamaa thought his fellow inmates might need some concrete encouragement. His private fast the previous fall had lasted 33 days, and he believed he could have gone longer. Soon after last summer’s strike began, the four leaders were moved from the SHU to a unit called Administrative Segregation, and Jamaa, entering the unit, started to holler, “Forty days and 40 nights! Forty days and 40 nights!” If prisoners can be counted upon to know any literature, it is the literature of suffering that in the Bible precedes redemption. Jamaa had chosen his slogan with intent: They were Moses in the desert. At night, Jamaa would drop on his knees, put his mouth to the crack between the door and the floor, and yell: “Forty days and 40 nights!” Soon, new hunger strikers arriving in AdSeg were shouting the slogan as they were hustled in. It was then that Jamaa began to believe their movement had some possibility, some momentum. 

And a very sophisticated explanation of the gang leadership controvresy from Craig Haney:

Haney returned to Pelican Bay last year, for a ­follow-up study, and found that these ­patterns of self-isolation had deepened. Many inmates had discouraged family members from visiting, and some seemed to consider all social interactions a nuisance. “They have systematically extinguished all of the social skills they need to survive,” Haney says. Those inmates who do comparatively well tend to replace the social networks outside the SHU with those within it—which, in a society composed of alleged gang members, often means gangs. “In isolation,” he says, “gang activity is the only contact that is possible; it is the only loyalty that is possible; it is the only connection that is possible.”

And this bit about the effects of Judge Henderson’s ruling allowing force-feeding of inmates:

Until this point, the prisoners had thought of the guards—and, more broadly, the state—as their captors. But the state is also their warden and their protector: A prison is designed to separate convicts from society and prevent them from doing more harm, but also to shelter them and keep them alive. The judge’s order returned repeatedly to the problem of coercion. The specter of gang influence was so strong, Henderson’s ruling suggested, that the state could not trust that a prisoner’s advance medical directive had been made freely—that he had made his own decision about the terms under which he was willing to die. The strike leaders had thought that by volunteering to risk their own deaths they could compel the state to see them as individuals, and that in at least this one instance they could reassert freedom of control over their lives. But they had been wrong.

Read the whole thing. It’s fascinating and very well written.

Juveniles in Solitary: News

Lots of things moving in the right direction in the world of solitary confinement. For one thing, Assemblymember Tom Ammiano has just introduced AB 1652, the product of the legislative hearings, with the intent to limit usage of solitary confinement in California. Among other things, the bill text limits confinement to serious offenses, and creates a 3-year maximum confinement if the assignment to solitary is based on gang status alone.

But there are other news as well. As some readers know, there is an ongoing lawsuit against the Contra Costa Juvenile Hall for locking up youth with disabilities for 23 hours a day. Today, the feds have joined the battle – on the side of the inmates. Disability Rights Advocates reports:

Youth with disabilities generally are disproportionately represented in juvenile correctional facilities and by Contra Costa County’s own estimate, roughly 32% of the students at the Contra Costa County Juvenile Hall have disabilities that require some form of special education. Despite their disabilities, youth at Contra Costa County Juvenile Hall are locked for days and weeks at a time in cells that have barely enough room for a bed and a narrow window the width of a hand and length of an arm. Indeed young people are routinely held in conditions like those in a maximum security prison. The results of such conditions are devastating. For instance, named Plaintiff W.B. was placed in solitary confinement for more than 90 days, during which time he deteriorated mentally to the point where he was smearing feces on the wall and, ultimately, was held in a psychiatric hospital for three weeks.

“The United States Department of Justice and Department of Education have singled out Contra Costa County Juvenile Hall for a reason,” said Mary-Lee Smith, Managing Attorney at Disability Rights Advocates. “Contra Costa County and Contra Costa County Office of Education’s refusal to accept their legal obligations cannot continue, too many young people with disabilities are suffering and that must end.”

“United States Department of Justice and Department of Education involvement in this case should be a wake-up call to Contra Costa County and the County Office of Education,” said Laura Faer, Statewide Education Rights Director. “Every day more young people are harmed by their failure to take responsibility and follow federal and state law. These flagrant violations of children’s rights to education and rehabilitative services must stop.”

Note that the feds are dressing their objections to this practice as an educational issue: that is, the problem is not that segregation is cruel and unusual per se, but that it hampers these students educational opportunities. Even on such a narrow basis, it’s remarkable that the feds have found it politically sayable to oppose these practices and place themselves squarely on the side of the inmates.

Solitary Confinement Hearings Aftermath

The SHU hearings in Sacramento yesterday were a success from the inmates’ rights perspective. The Sac Bee reports:

Corrections officials have touted a new pilot program allowing inmates to ease their way out of solitary confinement, and regulations recently submitted to the Office of Administrative Law would allow the pilot to be applied throughout the prison system.

But legislators seemed skeptical that the changes would substantially reduce the practice of walling off inmates in the “Security Housing Units,” or SHU, that exist in four state prisons.

But wait! There’s more!

Later in the day, Ammiano announced a bill that would cap “administrative” terms in the SHU – those not related to a specific incident, which would include stays stemming from gang affiliation – at 36 months. The legislation would also allow inmates to exit more quickly by accumulating good behavior credits.

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: 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.