Huge Victory For Prison Reform: California Ends Indeterminate Long-Term Solitary Confinement – OpEd


On Tuesday, a significant victory took place in the long struggle by campaigners — and prisoners themselves — to improve detention conditions in US prisons, when a settlement was reached in Ashker v. Governor of California, a federal class action lawsuit on behalf of prisoners held in the Security Housing Unit (SHU) at California’s Pelican Bay State Prison who have spent a decade or more in solitary confinement.

In a press release, the Center for Constitutional Rights, whose lawyers represented the prisoners, with co-counsel from other lawyers’ firms and the organizations California Prison Focus and Legal Services for Prisoners with Children, stated that the “landmark” settlement “will effectively end indeterminate, long-term solitary confinement in all California state prisons,” resulting 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.”

As CCR noted, 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.” The case argued that California’s use of prolonged solitary confinement “constitutes cruel and unusual punishment and denies prisoners the right to due process.”

All this was inarguable, and yet it has taken decades to reach this momentous point. Back in July 2011, I picked up on the Pelican Bay story when, first of all, I received a press release from the Prison Hunger Strike Solidarity Coalition in Oakland, California, as prisoners held in Pelican Bay and five other Californian prisons embarked on a hunger strike, and, secondly, when I received a message from my friend Debra Sweet of the World Can’t Wait, who asked me “if I saw similarities between America’s domestic prisons and the hunger strikers of Pelican Bay and the prisoners at Guantánamo.” Debra stated that the Pelican Bay hunger strike came about “in response to conditions in the Security Housing Units (SHU) of extreme isolation, brutality, deprivation — conditions so severe they violate the US Constitution and international laws on torture. Very significantly, the strike has brought together Black and Latino prisoners who are normally set against each other. They are asserting their own humanity and challenging others to reclaim their humanity by standing with them.”

Hunger strikers at one of the prisons, Corcoran State Prison, released a statement that said, “Our indefinite isolation here is both inhumane and illegal and the proponents of the prison industrial complex are hoping that their campaign to dehumanize us has succeeded to the degree that you don’t care and will allow the torture to continue in your name. It is our belief that they have woefully underestimated the decency, principles and humanity of the people. Join us in opposing this injustice without end. Thank you for your time and support.”

The prisoners had five demands, one of which involved a call for an end to solitary confinement for those perceived to be gang members. These perceptions are often wrong — CCR noted that they were often based on evidence “as innocuous as having supposedly gang-related artwork or tattoos” — and yet those regarded as gang members could then be put into solitary for years — or decades — with no way out. The prisoners also complained about “debriefing,” or “offering up information about fellow prisoners particularly regarding gang status,” which was “often demanded in return for better food or release from the SHU.”

In an article for FireDogLake, Kevin Gosztola explained how solitary confinement had become popular in the 1980s, as a way of isolating potentially troublesome prisoners, who were “confined to their cells without yard time, work or any kind of rehabilitative programming.” He added that, “in 1989 California built the first supermax — Pelican Bay. There was a supermax boom in the 1990s, and today, 40 states and the federal government have supermax prisons holding upwards of 25,000 inmates. Tens of thousands more are held in solitary confinement in lockdown units within other prisons and jails. There’s no up-to-date nationwide count, but according to best estimates, there are at least 75,000 and perhaps more than 100,000 prisoners in solitary confinement on any given day in America.”

As the author and university professor Colin Daylon wrote for the New York Times, “Many of these prisoners [in solitary confinement] have been sent to virtually total isolation and enforced idleness for no crime, not even for alleged infractions of prison regulations. Their isolation, which can last for decades, is often not explicitly disciplinary, and therefore not subject to court oversight. Their treatment is simply a matter of administrative convenience. Solitary confinement has been transmuted from an occasional tool of discipline into a widespread form of preventive detention.”

I continued to report on the hunger strikes and the demands for an end to indiscriminate solitary confinement in July 2011, cross-posting the devastatingly powerful New Yorker article ‘Hellhole’, about long-term solitary confinement and why it is torture, and following the hunger strikers into the fall, and into 2012, when, “Comparing their conditions to a ‘living coffin,’ 400 California prisoners held in long-term or indefinite solitary confinement petitioned the United Nations … to intervene on behalf of all of the more than 4,000 prisoners similarly situated,” as a local paper put it.

Shortly after that, Ashker v. California was filed, amending an earlier pro se lawsuit that was filed, in 2009, by two Pelican Bay SHU prisoners, Todd Ashker and Danny Troxell.

And while the lawyers must be thanked for all their hard work, two of CCR’s attorneys on the case, Alexis Agathocleous and Rachel Meeropol, made clear that none of this would have been possible without the prisoners themselves. In an article on CCR’s website, they wrote:

The struggle to end California’s extreme use of solitary confinement has always been led by people in prison and their families, organizing through the prison walls. Incarcerated activists first brought the case that became Ashker and organized the hunger strikes that made the barbaric reality of solitary a political and policy issue. Throughout the lawsuit, our plaintiffs were involved at every step, and the settlement gives them an unprecedented role in monitoring compliance with its terms. Their organizing efforts – in the face of unimaginable obstacles – have been extraordinary.

They also made available an extraordinary video featuring the Ashker plaintiffs, held between 14 and 25 years in solitary confinement — Todd Ashker, Sitawa Nantambu Janaa, Paul Redd, Jeffrey Franklin, George Franco and Gabriel Reyes.

That video is posted below via YouTube:

Nine of the prisoners — Todd Ashker, Sitawa Nantambu Jamaa, Luis Esquivel, George Franco. Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz and Danny Troxell — also issued the following statement:

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. 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.

Our movement rests on a foundation of unity: our Agreement to End Hostilities. It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence. From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings.

As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle. We are fully committed to that effort, and invite you to join us.

Lead attorney Jules Lobel, the President of the Center for Constitutional Rights, also issued a statement, calling the settlement “the result of the extraordinary organizing the prisoners managed to accomplish despite extreme conditions,” and adding, “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.”

Carol Strickman, staff attorney at Legal Services for Prisoners with Children, also said, after the settlement was announced, “The seeds of this victory are in the unity of the prisoners in their peaceful hunger strike of 2011. That courageous and principled protest galvanized support on both sides of the prison walls for a legal challenge to California’s use of solitary confinement.”

As CCR noted, when Ashker was first filed in 2012, “more than 500 prisoners had been isolated in the Security Housing Unit (SHU) at Pelican Bay for over 10 years, and 78 had been there for more than 20 years. They spent 22½ to 24 hours every day in a cramped, concrete, windowless cell, and were denied telephone calls, physical contact with visitors, and vocational, recreational, and educational programming.” Hundreds of other prisoners throughout California, CCR also noted, “have been held in similar SHU conditions.”

CCR added that the settlement “transforms California’s use of solitary confinement from a status-based system to a behavior-based system; prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on infraction of specific serious rules violations. It also limits the amount of time a prisoner can spend in the Pelican Bay SHU and provides a two-year step-down program for transfer from SHU to general population.”

The agreement also “creates a new non-solitary but high-security unit for the minority of prisoners who have been held in any SHU for more than 10 years and who have a recent serious rule violation. They will be able to interact with other prisoners, have small-group recreation and educational and vocational programming, and contact visits.”

Extensive expert evidence submitted in the case had established “severe physical and psychological harm among California SHU prisoners as a result of prolonged solitary confinement.” The plaintiffs “worked with 10 experts in the fields of psychology, neuroscience, medicine, prison security and classification, and international human rights law,” and the reports provided “an unprecedented and holistic analysis of the impact of prolonged solitary confinement on human beings,” as well as “guidance in the construction of the settlement reforms.”

As CCR also noted, the key reforms include the following:

  • 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.

Responding to the settlement, the New York Times noted how “Craig Haney, a psychologist who studied the effects of isolation on prisoners at Pelican Bay State Prison in Northern California — the prisoners at the heart of this settlement — used the term ‘social death’ to describe the impact on their psyche.” The Times added that “[a] number of corrections officials across the country are also coming to see locking up inmates for years at a time as ineffective.”

Providing figures for the reforms, the Times also noted that, at the time of the settlement, “2,858 prisoners were in solitary housing units across the state,” but “that figure could fall by as many as 1,800 inmates, bringing it ‘more in line with other states,’” as Jeffrey Beard, the secretary of the California Department of Corrections and Rehabilitation, said at a news conference, although more than 1,100 prisoners remain in solitary confinement in the windowless cells of Pelican Bay

Beard called the settlement “part of an effort the state had already been making to reduce the number of prisoners in solitary confinement.” As the Times described it, he said that “[m]ore than 1,000 inmates who had been held in isolation units because of gang affiliations have already been released over the last several years, and few have caused problems in the general population.”

He claimed that, in the 1970s and 1980s, “there was a lot of violence in the system,” and “you had to do something to stop the violence,” although he added that “the problem was you had a system that was so overcrowded over the years that they just went from one crisis to anther.”

Explaining the current changes, he said, “We moved slow at first, because this represented a big change. Any time when you try to change something that you’ve been doing for over 30 years, there is the risk of having problems.” However, he added that the department now had “the tools to deal with those people when they emerge” from the solitary units, and he also said, “We don’t believe it’s good for anybody to keep them locked up for 10, 20, 30 years” in isolation, a concession that is welcome, if long overdue.

As the Times noted, “Solitary confinement has come under increasing scrutiny across the country, as research has revealed the effects of long-term isolation on the psyche. The suicide of Kalief Browder in June, after nearly two years in isolation at Rikers Island in New York City, brought renewed attention to young people in solitary confinement. That same month, Justice Anthony Kennedy of the Supreme Court seemed to invite a constitutional challenge to prolonged solitary confinement.”

In an editorial in June, the Times‘ editors noted Justice Kennedy’s comments in the case of Hector Ayala, who has been on California’s death row for 25 years:

It is likely, Mr. Kennedy wrote, that Mr. Ayala “has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone.” The Supreme Court has rarely mentioned this practice, and it has never ruled on whether the practice violates the constitutional ban on cruel and unusual punishments. But as Justice Kennedy wrote, this sort of “near-total isolation exacts a terrible price,” long understood by courts and commentators.

In making his point, he quoted Dostoyevsky: “The degree of civilization in a society can be judged by entering its prisons.” He cited the case of Kalief Browder … And he noted research showing that solitary confinement is most harmful to young people and the mentally ill, who often end up in prison.

This is not the first time Justice Kennedy has aired his concerns about solitary confinement — he spoke out against the practice during testimony before Congress in March. But in addressing the brutality of this punishment at length in an opinion, he raises a constitutional question even if some of his colleagues would rather avoid it.

The editorial concluded:

Justice Kennedy seemed eager to consider whether prolonged solitary confinement is unconstitutional. If faced with a lawsuit raising this issue, he wrote, the courts may have to decide “whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” In other words, he was saying, bring us a case.

Perhaps one day, Justice Kennedy will have his wish granted — although it is by no means certain that a majority of the Justices would appreciate the raising of such a constitutional question. For now, however, it is worth celebrating the achievements of the prisoners in California, their lawyers — and, I hope, the prison authorities, who seem finally to be accepting that prolonged solitary confinement, which they have embraced more thoroughly than anywhere else in the US, is wrong and must be stopped.

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Andy Worthington

Andy Worthington is an investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers). Worthington is the author of "The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison"

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