It's been six years since Todd Ashker and Danny Troxell began a lawsuit protesting California's practice of indefinite and arbitrary solitary confinement
It's been two years since the more recent of two hunger strikes took place inside California's prisons, challenging the conditions of long-term solitary confinement.
It's been three years of legal discovery. Pro-bono lawyers took depositions from thirty prisoners locked away in various SHUs (Security Housing Units) in various prisons across the state; they scanned through hundreds of thousands of pages of documents produced by the state and expert witnesses.
And its been months and months of settlement talks, perhaps prompted by Supreme Court Justice Kennedy's amazing detour in a dissent on a death row case, wondering if solitary confinement was not, in fact, unconstitutional and all but inviting a case to be presented to SCOTUS.
Finally, today, the Center for Constitutional Rights and their Co-Counsels, a large group of attorneys from around the country, including attorneys at Siegel and Yee in Oakland, CA, will announce a settlement agreement in Asker v Brown. The settlement is with the State of California, and was filed with the presiding judge this morning. The LA Times is reporting it here. There will, or will have been, a press conference in downtown Oakland at the Eliju Harris State Building at noon.
An explanation of Ashker v Brown:
[Asker v Brown] charges that prolonged solitary confinement violates the Eighth Amendment's prohibition against cruel and unusual punishment, and that the absence of meaningful review for SHU ((solitary confinement)) placement violates the prisoners' rights to due process...
SHU prisoners spend 22 ½ to 24 hours every day in a cramped, concrete, windowless cell. They are denied telephone calls, contact visits, and vocational, recreational, or educational programming. Hundreds of Pelican Bay SHU prisoners have been isolated under these conditions for over 10 years and dozens for more than 20 years, causing harmful and predictable psychological deterioration...
...the suit charges that... California, alone among all 50 states and most other jurisdictions, imposes extremely prolonged solitary confinement based merely on a prisoner's alleged association with a prison gang. Gang "affiliation" is assessed without considering whether a prisoner is- or ever was - actually involved in gang activity.
What does
the settlement (PDF) do?
The settlement is complicated. I'm tried to understand it and translate some of the legalese and technical jargon into English. Some of the settlement terms refer to prisoner categories and levels, which I've finessed. So this may not be completely accurate, and its definitely simplified. Much of it, nonetheless, is text straight from the settlement agreement.
Ninety minutes a day here to exercise, the rest in your cell.
The settlement binds the California Department of Corrections and Rehabilitation (CDCR) to do certain things to reduce the SHU population, keep records, and consult with the Plaintiffs' attorneys over a 24 month period. Some of the critical terms:
- Inmates in the SHU will be transfered into a Step Down Program (a transition phasing from solitary to the general prisoner population) upon completion of the determinate, disciplinary SHU term imposed. (In other words they can't be transferred back into solitary confinement, or into indefinite solitary confinement, when their existing solitary confinement term ends, barring exceptional conditions (see below), as has been done repeatedly in the past).
- CDCR shall not place inmates into a SHU, Administrative Segregation, or Step Down
Program solely on the basis of their validation status (i.e. alleged gang affiliation). Other criteria for placement in the SHU will be modified.
- Certain inmates currently in the SHU will be transferred immediately into a Step Down Program.
- The Step Down Program itself will be modified so that it is based on individual accountability, and not solely on the inmate's validation status or level of "Security Threat Group (STG)" (aka gang) affiliation.
- The Step Down Program shall be 24 months in duration. There will be four phases, each of six months duration. Each Step within the Step Down Program shall provide incremental increases in privileges and freedom of movement.
- The Step Down Program will incorporate rehabilitative programming consisting of both required and elective components, providing an alternative path away from STG behavior and promote critical life skills.
- If an inmate repeatly commits serious violations of the STG rules while in the Step Down Program, they may be assigned to a Restrict Custody General Population (RCGP) facility, but not back into the SHU.
- Within twelve months of the Court's preliminary approval of this Agreement, CDCR shall review the cases of all validated inmates who are currently in the SHU as a result of an indeterminate term. If an inmate has not been found guilty of a SHU-eligible rule violation with a proven STG nexus within the last 24 months, he shall be released from the SHU and transferred to the general population. An inmate who has committed a SHU-eligible rule violation with an STG nexus within the last 24 months shall be placed into the Step Down Program.
- Any inmate housed in a SHU program for 10 or more continuous years who has committed a SHU-eligible offense with a nexus to an STG within the preceding 2 years, will be transferred into the RCGP for completion of Step Down Program requirements.
- If an inmate is found guilty of committing a SHU-eligible offense while assigned to the Step Down Program or RCGP, he shall complete the intervening determinate, disciplinary SHU term for that offense before returning to the Step Down Program or RCGP.
Pelican Bay, in northwestern California, notorious as (but is not the only) SHU facility.
Others exist at Tehachapi and Corcoran.
The settlement agreement does not seem to itself place restrictions on how long a prisoner may spend in solitary. What it does seem to do is limit stays in solitary to however long the initial, fixed-length, solitary sentence duration was, but what the maximum for that is I am not sure. I did find this:
"Validated gang members are sent to 6-year terms in solitary confinement."
There are exceptions allowing extensions to these fixed-length sentences if "overwhelming evidence exists supporting an immediate threat to the security of the institution or the safety of others." Such prisoners must have their status reviewed yearly.
Other inmates placed or retained in the SHU on "Administrative SHU status" must have their cases reviewed every 180 days so as "to move the inmate to a less restrictive environment as soon as case factors would allow."
The settlement agreement is in place for 24 months, to be enforced by a magistrate judge. After that, plaintiffs may ask for an extension of 12 months, and again for 12 months, repeatedly, until the judge agrees that the agreement should be terminated.
This is a big step, coinciding with other movements across the country to end solitary confinement for juveniles, and to severely reduce solitary terms and conditions of isolation in other states. But it is also a small step, since people will still be locked in cages for years and years, subject to what the United Nations and most other civilized countries have deemed torture.
The prisoners who endured hunger strikes and resulting repercussions from their jailers to bring California's outrageous system of solitary to the awareness of the public, and the large number of lawyers who labored for years on their behalf - with no surety of compensation - must be feeling pretty good right now and are to be congratulated.
There is still so much work to do. Human beings should not be held in these conditions, no matter what they did, no matter what the offense, for any length of time more than a few days, if even that. The world knows this. It is time the United States did as well. You can help in that fight.
9:16 AM PT: As the LA Times describes the settlement:
alifornia has agreed to move thousands of prison inmates out of solitary confinement...
... the state agreed to create small, high-security units that keep its most dangerous inmates in a group setting where they are entitled to many of the same privileges as other prisoners: contact visits, phone calls and educational and rehabilitation programs...
...the majority of the several thousand gang-associated prisoners who have been either kept in isolation a decade or more, or have gone at least two years without a major rule violation, are to be moved back to the general prison population...
California once led the nation in the use of solitary confinement but that position is now held by Texas.
According to the corrections department, California currently has some 6,400 inmates in isolation units
http://www.latimes.com/...
9:33 AM PT: New York Times article:
LOS ANGELES — California has agreed to an overhaul of its use of solitary confinement in its prisons, including strict limits on the prolonged isolation of inmates, as part of a landmark legal settlement filed in federal court on Tuesday.
The settlement is expected to sharply reduce the number of inmates held in the state’s isolation units, where inmates are often kept alone for more than 22 hours a day inside cells that sometimes have no windows, and cap the length of time prisoners can spend there...
Prisoners will no longer be sent to isolation indefinitely. And gang members will no longer be sent to solitary confinement based solely on their gang affiliation; only inmates found guilty of violating serious prison rules, like violence against other prisoners, weapons possession or escape, will be sent to isolation...
All inmates who were sent to solitary confinement because of gang affiliations will have their cases reviewed within a year; unless they have committed another offense, they will be released to the general population...
As of Monday, 2,858 prisoners were in solitary housing units across the state. More than 1,100 were in Pelican Bay, the state’s toughest prison, where the isolation cells do not have windows.
http://www.nytimes.com/...
9:39 AM PT: Statement by the Center for Constitutional Rights:
September 1, 2015, Oakland – Today, the parties have agreed on a landmark settlement in the federal class action Ashker v. Governor of Californiathat willeffectively end indeterminate, long-term solitary confinement in all California state prisons. Subject to court approval, the agreement will result in a dramatic reduction in the number of people in solitary across the state and a new program that could be a model for other states going forward. The class action was brought in 2012 on behalf of prisoners held in solitary confinement at the Pelican Bay prison, often without any violent conduct or serious rule infractions, often for more than a decade, and all without any meaningful process for transfer out of isolation and back to the general prison population. Ashker argued that California’s use of prolonged solitary confinement constitutes cruel and unusual punishment and denies prisoners the right to due process.
“This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country,” the plaintiffs said in a joint statement. “California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action. This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters.”
“Today’s victories are the result of the extraordinary organizing the prisoners managed to accomplish despite extreme conditions,” said Center for Constitutional Rights President and lead attorney Jules Lobel. “This far-reaching settlement represents a major change in California’s cruel and unconstitutional solitary confinement system. There is a mounting awareness across the nation of the devastating consequences of solitary – some key reforms California agreed to will hopefully be a model for other states.”
...
https://ccrjustice.org/...
9:43 AM PT: Video statements by some of plaintiffs, held in solitary for decades.
10:13 AM PT: Summary of the settlement from the CCR:
Key reforms include:
- Prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on specific serious rules violations. The Ashker settlement ends California’s status-based practice of solitary confinement, transforming it into a behavior-based system
- Under the system challenged in the lawsuit, Prisoners validated as gang affiliates used to face indefinite SHU confinement, with a review for possible release to general population only once every six years, at which even a single piece of evidence of alleged continued gang affiliation led to another six years of solitary confinement. That evidence was often as problematic as the original evidence used to send them to SHU – for example, a book, a poem, or a tattoo that was deemed to be gang-related.
- Under the settlement, California will generally no longer impose indeterminate SHU sentences. Instead, after serving a determinate sentence for a SHU offense, prisoners whose offense is related to gang activity will enter a two-year, four-step, step-down program to return to the general prisoner population. Prisoners will receive increased privileges at each step of the step-down program.
- California will review all current gang-validated SHU prisoners within one year of the settlement to determine whether they should be released from solitary under the settlement terms. The vast majority of such prisoners are expected to be released.
- Virtually no prisoner will ever be held in the SHU for more than 10 continuous years.
- California will create a modified general-population unit for a very small number of prisoners who repeatedly violate prison rules or have been in solitary over 10 years but have recently committed a serious offense. As a high-security but non-isolation environment, this new unit allows prison administrators to begin to balance the humanity of the prisoners with the security of the prison, creating a realistic alternative to long-term solitary for the minority of “hard cases.” Prisoners held in this unit will be allowed to move around the unit without restraints, will be afforded as much out-of-cell time as other general population prisoners, and can receive contact visits.
- Prisoners themselves will have a role in monitoring compliance with the settlement agreement. Prisoner representatives will meet regularly with California prison officials to review the progress of the settlement, discuss programming and step-down program improvements, and monitor prison conditions.
https://ccrjustice.org/...
11:22 AM PT: