Incarceration Nation

California’s Secret Solitary Courts

By Sarah Shourd

Despite a new settlement that bans indefinite solitary confinement in California, prisons are finding new secondary excuses to lengthen time in the SHU (Secure Housing Unit.)

A change in policy in California just last month could result in an estimated 1,500 to 2,000 prisoners being released from solitary confinement into the general prison population.

Seventy-eight of these prisoners have been isolated for more than 20 years. Like being confined to a small fish bowl in the dark corner of an attic—these prisoners will suddenly be thrust into a much larger aquarium, teeming with life. 

“This is a pretty shocking admission that these people—who have been held in solitary confinement ad infinitum—perhaps never needed to be there in the first place,” says Charles Carbone, a part of a team of lawyers who worked on the class-action suit Ashker v. Governor of California, which recently ended in a settlement resulting in a pending seismic shift in California’s prisons policies. 

Ashker v. Governor of California will, in fact, lessen the widespread use of solitary confinement—a punishment the United Nations deems “cruel and unusual”—but internal resistance, retaliation, and a widening definition of what constitutes a gang may keep prisoners in solitary needlessly.

And sometimes, lawyers and prisoner rights-activists warn, those criteria can be arbitrary or even “retaliatory.”

California’s Department of Corrections and Rehabilitation (CDCR) says around 5,000 inmates are validated as belonging to what they call Security Threat Groups (STGs). In 2012, CDCR vastly expanded the parameters of STGs from a mere eight groups—serious gangs like the Bloods and Crips—to over 1,500 groups labeled vaguely as “disruptive.”

Flimsy evidence of association with any of these groups can be used to “validate” a prisoner as a gang member or “associate” on the basis of possessing a certain book or having a gang-related tattoo.

Among these “disruptive groups” are motorcycle gangs and so-called revolutionary groups. One category in the list is simply called “Black-Non Specific,” so any group with the word “black” in its name can qualify as an STG.

“Let’s say a Correctional Officer (C.O.) decides a guy is a real pain in the ass,” says Carbone. “Maybe he has institutional notoriety, maybe he’s been filing too many complaints, or the C.O.s just don’t like him. They can take an ordinary rule violation, transmute it into gang activity, and make sure said prisoner stays off the mainline for a long time.” 

Carbone believes the CDCR saw this as an opportunity to depart from an antiquated policy.

“They’ve moved their target from prison gangs to a much wider population—the STGs—and they want a strong sanction at their disposal.”

“Guards write false tickets for rule violations all the time,” says Anne Weills, another lawyer involved in negotiating the historic settlement that ended indefinite solitary confinement.

“Prisoners have very few due process rights when it come to being placed in solitary, and no right to an attorney,” she continues. 

“Also, prisoners in are under such intense scrutiny—they’re experiencing mental health issues, insomnia, and hallucinations—the situation easily leads to breaking more rules and being sentenced to longer and longer periods.” 

At first glance, the “behavior-based” crimes listed in the settlement—like murder, escape, and weapons possession—seem to warrant the harsh punishment of isolation. 

Yet, further down the list you find vague “SHU-eligible” offenses (the CDCR refers to certain cells as Segregated Housing Units or SHU) such as “harassment” and “disturbance” that could easily be applied subjectively, even in a retaliatory fashion—which is exactly what lawyers are afraid of.

“There’s a hard core of guards that are furious about this settlement,” says Weills. 

Weills says one her clients, after being released into the general prison population, was approached by someone from another gang who “told him a sergeant was spreading rumors that my client was bad-mouthing him.” 

“The guards are trying to start fights and foment violence between different racial groups. They think this settlement undermines their entire system of control.”

Before the CDCR initiated reforms, an inmate could be placed in the SHU indeterminately for being validated as a gang member.

“He didn’t even have to do anything,” says Thornton.

“Now the thinking is there has to be a behavior-based offense, what we consider a ‘serious rules violation.’ After all, why should inmates be put in the SHU if they haven’t done anything?”

Yet, that’s been the CDCR’s policy for decades. Prisoners have been sentenced indefinitely to conditions that qualify as solitary confinement by international standards, simply for being “validated.”

Lawyers from the Center for Constitutional Rights (CCR) have been arguing in court that this policy was unconstitutional, a violation of the 8th Amendment against “cruel and unusual punishment.”

Last month, on September 2, they won.

As a result, California has agreed to eliminate “indeterminate” sentences to its SHU—a practice rare in other states—and release all prisoners who have been confined to isolation for more than 10 years.

In addition, the CDCR must limit the use of solitary confinement to prisoners convicted of “behavior-based” prison rule violations.

The CDCR is reviewing all cases of individuals put in solitary on the basis of gang “validation.” Seventy-one percent of the 1,478 cases that have undergone review have already been approved for release into the general population.

“It’s an incredible victory but still a terrible situation,” says Weills.

On September 4, two days after the settlement was announced, the California Correctional Peace Officers Association (CCPOA) issued a press release “denouncing CDCR’s agreement to end the unlimited use of solitary confinement.”

The press release states (PDF): “Our prisons are even more crowded now than they were in the 1980’s dangerously low staffing levels add to the challenges correctional officers face. CCPOA believes this settlement will further exacerbate gang activity and prison violence that threatens the security of our institutions, and exponentially increasing risks to the safety of both correctional peace officers and inmates.”

“This is no longer the ’80s,” says Weills. “Thirty thousand prisoners went on a nonviolent hunger strike to force this change to happen.”

Weills thinks the guards are “back in the dinosaur days.”

“Many have a militaristic, war-like mentality against our prisoners,” she says. “They are so threatened by this unity that they’ll do anything to break it up.” 

“It doesn’t matter how some correctional officers might feel about the new policy,” says Terry Thornton, deputy press secretary for the CDCR. “They’re hired to do a job. They’re obligated to follow these new regulations.” 

“It’s a set-up,” adds Weills. “These so-called ‘wellness checks’ started on August 3rd, the very day we settled. That’s no coincidence. Guards have been waking up our clients multiple times throughout the night in the name of their ‘safety’—but what it really is is retaliation.”

“When our clients get released they put them on the most violent yards,” continues Weills. “[Guards are] just waiting for someone to attack them so they can call this new policy a failure.”

Weills points to the case of Hugo Pinell, an inmate murdered just weeks after being released on the mainline after being in solitary confinement for 40 years.

“I fear for them all,” she says.

This settlement has forced the CDCR to acknowledge its past mistakes and correct its policies. Lawyers have helped all sides come to an agreement that promises to benefit prisoners, California’s correctional institutions, and society. 

The CDCR says there are 7,397 prisoners in various forms of isolation in California’s prisons. California has no plan to close any of its 33 prisons, nor are any of its SHU units slated for conversion. 

Some critics fear that the CDCR is merely reshuffling the deck by ending unlimited solitary confinement. Is the unstated goal of this change in policy to get the heat of public and prisoner outrage off of the CDCR’s back—or will the numbers of prisoners in solitary confinement actually go down?

“We anticipate the numbers will go down,” says Thornton. “Permanently.”

“The number of people in the SHU will probably remain the same,” says Carbone. “But the duration will go down significantly. More guys will leave their gang, which is a very good thing. Guys will say, ‘I’m out of here, I want to get an education, I want to go home.’” 

Carbone believes that the desire of the department to correct these policies actually exists.

“Resistance is at the level of the foot soldiers,” he says. “The good thing is we’re going to have some hawks, at least for two years, keeping vigilant watch.”

“We’re making these changes because it’s the right thing to do,” adds Thornton. 

“I believe anybody can be rehabilitated if they want to be,” she continues. “Moses was a murderer, he saw an Egyptian beating an Israelite, killed him, hid his body in the sand and ran away. Then he went on to write the first five books of the first testament. If there’s hope for Moses, there’s hope for anyone.” 

“I’m hopeful things are changing,” says Weills, “but it can all be undone so easily. The real proof is in the pudding.” 

The Daily Beast, October 6, 2015