[Pnews] Will Court and Legislative Delays Threaten CA’s Solitary Confinement Limits?

Sat Sep 16 11:47:56 EDT 2023

truthout.org
<https://truthout.org/articles/will-new-ruling-threaten-californias-solitary-confinement-limits/>
Will Court and Legislative Delays Threaten CA’s Solitary Confinement Limits?
Victoria Law - SEptember 15, 2023
------------------------------
[image: photo-2-4SolitarySurvivors-1200x900.jpeg]
Arthur (a solitary survivor), Dolores Canales, Arthur's wife Jennifer and
Dolores's husband Jack Morris take part in a lobbying day in Sacramento,
California, on September 7, 2023.Dolores Canales

The movement against prolonged solitary confinement in California is facing
new challenges on two different fronts.

First, on August 24, a three-judge panel handed down a ruling ending a
federal magistrate’s ability to monitor and limit California’s use of
prolonged solitary confinement. However, prisoners’ rights advocates aren’t
giving up – they appealed the ruling and continued pressing lawmakers to
pass the Mandela Act, limiting isolation to no more than 15 days.

The California State Assembly had passed the bill by 56 to 16 in May and
the California State Senate by 21 to 12 in mid-September.

Less than one month after the court ruling, however, on September 13,
Assemblymember Chris Holden, the bill’s sponsor, agreed to hold (delay) the
bill in the final days of the 2023 legislative session. It had faced sharp
opposition from law enforcement. Last year, California governor Gavin
Newsom had vetoed a similar measure directing the state’s prison system to
draft regulations instead.
A Landmark Settlement Limited Solitary

In 2015, the California Department of Corrections and Rehabilitation
(CDCR) settled
*Ashker v. Governor of California*
<https://truthout.org/articles/two-years-after-hunger-strike-california-settlement-may-release-2000-prisoners-from-solitary/>*,
*a class-action lawsuit challenging the use of indefinite solitary. Until
then, California prisons had placed those accused of gang affiliation into
security housing units (or SHU) for an indeterminate period of time. These
accusations, or Security Threat Group (STG) validations as they are called
in the prison system, often relied on confidential informants and
circumstantial evidence, such as reading materials, drawings, tattoos or
associations with others. Until 2012, the only ways out of the SHU were to
debrief (inform on other alleged gang affiliates), parole or die.

The California prison system does not use the term solitary confinement.
Instead, prison officials call the practice restricted housing. But in the
SHU, people were confined to windowless cells for at least 23 hours each
day. When they were allowed out of their cells — for a shower, a visit
separated by glass or an hour of recreation alone in an exercise pen — they
were handcuffed and ankle chained
<https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/torture-use-solitary-confinement-us-prisons>
.

By 2015, more than 500 people had been isolated in the SHU for more than a
decade. Seventy-eight people, including lead plaintiff Todd Ashker, had
spent more than 20 years in isolation. Many were in Pelican Bay State
Prison, a super-max prison near the Oregon border, and far from their
families and communities.

That settlement changed the ways in which California prisons utilized
solitary confinement. Hailed as a “landmark settlement” by advocates,
family members and those in solitary units, it came after a class-action
lawsuit, years of protests and three mass hunger strikes that rocked the
state prison system.

The *Ashker *settlement stipulated that those who have spent 10 or more
years in the SHU would be reviewed and placed in general population or a
newly created restrictive custody general population unit, which was not to
mimic solitary. Those who had spent the longest time in the SHU would be
reviewed first.

The settlement also prohibited the CDCR from placing people in the SHU
based solely on alleged gang affiliation and from indeterminate SHU
placements, a prohibition that was codified into the agency’s regulations.
It also limited an individual’s time in Pelican Bay’s SHU to five years.
Finally, the settlement included at least two years of compliance
monitoring by federal Judge Claudia Wilken. That oversight has now
stretched to eight years.

Compliance monitoring revealed ongoing concerns
<https://truthout.org/articles/10-years-after-historic-hunger-strike-will-ca-finally-end-solitary-confinement/>.
The judge found that officials falsely attributed statements to informants,
highlighting a number of discrepancies between transcripts of interviews
with informants and the memos summarizing those interviews that were used
in disciplinary procedures that resulted in SHU placement. They did so 151
times during the second monitoring period, which ended in 2020.

She also found that prison officials gave parole boards alleged evidence of
gang affiliation without acknowledging that its previous system for
validating affiliation had been unreliable and violated due process.
Finally, Wilken found that prison officials had placed certain people,
including Ashker, in the restricted custody general population units
without providing reasons for their confinement or meaningful periodic
reviews.

“It’s a reasonable fear that CDCR will backslide in a number of ways
without that oversight,” CJ Sandley, staff attorney at the Center for
Constitutional Rights, told *Truthout.* “That’s why we felt like it was
warranted to extend the settlement agreement. And Judge Wilken did too.”

In late August, a three-judge panel for the Ninth Circuit Court of Appeals
ruled to end that oversight. The panel also ruled that prison officials can
place people in prolonged solitary confinement without fully disclosing
their reasons.

Prisoners’ rights advocates aren’t giving up — they plan to appeal the
ruling and continue pressing lawmakers for legislation limiting isolation
to no more than 15 days.

In an email to *Truthout*, CDCR Information Officer Tessa Outhyse wrote,
“CDCR is developing regulations to reform the use of segregated
confinement, also known as restricted housing, in prisons. The regulations
will restrict the use of segregated confinement except in limited
situations where individuals have engaged in violence or have serious
safety concerns that cannot be handled otherwise.”

Outhyse also stated that current CDCR policy
<https://govt.westlaw.com/calregs/Document/ID09738235A1F11EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)>
prohibits placing a person in restricted housing based solely on Security
Threat Group (STG) validation.
*Hundreds of Bills to Limit Solitary*

The court’s decision does not become finalized until the court issues a
mandate. Meanwhile, attorneys for the hunger strikers are appealing the
decision.

On September 7, the Center for Constitutional Rights filed
<https://ccrjustice.org/sites/default/files/attach/2023/09/2023-09-07%20%5B21-15839%5D%20Dkt.%2095%20Pltfs%20Petition%20for%20Rehearing%20En%20Banc.pdf>
for an en banc
<https://www.law.cornell.edu/wex/en_banc#:~:text=En%20banc%20is%20French%20for,524%20US%20965%20(1998).>
review by the Ninth Circuit Court, effectively pausing the process of
permanently ending the settlement agreement.

If the majority of the court’s 29 judges vote in favor of a review, the
case will be heard and decided upon by 11 of the court’s judges
<https://www.ca9.uscourts.gov/news-media/media-education-1/#:~:text=An%20en%20banc%20panel%20in,in%20the%20court%20of%20appeals.>.
If the judges decide against a review or vote to uphold the panel’s
decision, then the settlement agreement will end.

Regardless of the court’s decision, advocates — including the hunger
strikers who became the lead plaintiffs for the class-action lawsuit — say
that the settlement and the ensuing monitoring have resulted in significant
changes, and not just in California.

“The *Ashker* litigation has achieved, through the fierce organizing and
advocacy of incarcerated people, the release of hundreds of people from
indeterminate solitary confinement and significant reforms in CDCR’s gang
validation process and use of confidential information,” said Sandley.
“Whether or not the Ninth Circuit panel’s decision stands and the
*Ashker *litigation
ends, the struggle to hold California and CDCR accountable to those reforms
and push for even greater reforms in other venues must continue.”

Jessica Sandoval is the director of Unlock the Box
<https://unlocktheboxcampaign.org/>, a national advocacy campaign to end
solitary in the U.S. She told *Truthout* that the mass hunger strikes and
the lawsuit changed the public perception of solitary confinement as a
penological necessity. “People started talking about how solitary is
torture,” she said.

Furthermore, the changed understanding and ensuing public outrage has
spurred legislative action across the country. “Over 1,000 pieces of
legislation <https://unlocktheboxcampaign.org/data-tracker/> [limiting
solitary confinement] have been introduced since 2009,” Sandoval said,
adding that 175 of those bills were introduced in 2023 alone. “People are
geared up and ready to do what needs to be done in terms of building more
political capital and finding other viable political ways to keep the
spirit of *Ashker *alive.”

In California, anti-solitary organizers pressed lawmakers to pass the
California Mandela Act (AB 280
<https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240AB280&showamends=false>)
to limit solitary to no more than 15 consecutive days and no more than 45
days in any 180-day period. Last year, a similar bill passed both houses
but was vetoed by Gov. Gavin Newsom
<https://www.gov.ca.gov/wp-content/uploads/2022/09/AB-2632-VETO.pdf?emrc=ccbc61>,
who instead directed the CDCR to offer expanded opportunities for
rehabilitative programs and increased out-of-cell time for those in
restricted housing.

The court’s decision does not become finalized until the court issues a
mandate. Meanwhile, attorneys for the hunger strikers are appealing the
decision.

Todd Ashker filed the initial 2009 complaint, which became the class-action
lawsuit. He spent 29 years in the SHU before being released to general
population under the terms of the settlement bearing his name. But his
relative freedom was short-lived. Thirteen months later, high-level prison
officials ordered him to be placed in administrative segregation even
though he had broken no rules. He spent the next six years in isolation
until Judge Wilken ruled that his isolation was retaliation for his
continued organizing
<https://ccrjustice.org/sites/default/files/attach/2023/06/1877-1%20Redacted%20Retaliation%20Order%20-%20corrected.pdf>
and ordered officials to place him in general population.

Now in general population at Ironwood State Prison, Ashker learned about
the panel’s decision from an e-message from Dolores Canales, cofounder
of California
Families to Abolish Solitary Confinement <https://solitarywatch.org/cfasc/>.
“Did you hear about the ruling? We lost,” her message said.

But Ashker disagrees. “We didn’t lose nothing,” he told *Truthout* in a
phone interview. “We exposed CDC[R] for torturing people and we had the
whole world condemning them for that. We ended indefinite solitary
confinement based on [validation] status. That’s something to be proud of.”

Hundreds have been released from the SHU under the settlement and can now
have contact visits where they can hug and kiss their family members. This
includes Ashker who, in 2016, was able to hold hands, hug and kiss his wife.

Ashker pointed out that many who have been released after years of
isolation can also have overnight visits with immediate family members.
Some have even been paroled. This includes Jack Morris, who spent 35 years
in the SHU
<https://lasentinel.net/criminal-justice-reform-contributor-californians-for-safety-and-justice-celebrates-5-years-of-advocacy.html>,
participated in the 2013 hunger strike
<https://boltsmag.org/solitary-confinement-california/>, was paroled in
2017, then met and married anti-solitary organizer Dolores Canales in 2022
<https://www.ktvu.com/news/formerly-incarcerated-california-couple-weds-bond-strengthened-over-hunger-strikes>.
The couple continues to fight to eliminate solitary.
[image: Anti-solitary advocates pose in front of a life-sized mock SHU cell
that they brought to the capitol in Sacramento, California, for a lobbying
day on September 7, 2023.]Anti-solitary advocates pose in front of a
life-sized mock SHU cell that they brought to the capitol in Sacramento,
California, for a lobbying day on September 7, 2023.Dolores Canales

On September 7, two weeks after the court’s decision, the pair were among
200 people who converged in Sacramento to lobby lawmakers to pass the
California Mandela Act. Over half were people who, like both Canales and
Morris, had survived solitary confinement
<https://wagingnonviolence.org/2014/10/mother-just-wanted-know-son-eat/>.

“We’re not going anywhere,” Canales told *Truthout *that afternoon. “We’re
still going to be watching, overseeing and exposing anything that CDC[R]
does. One thing we have all committed to is making sure that California
never returns to the practice that so many people risked their lives to
expose.”

Meanwhile, after the assembly paused the bill, Morris told *Truthout*: “The
termination of Ashker underscores the need for a lasting solution on the
issue of solitary confinement in California.”

He added: “CDCR has demonstrated time and again that it cannot operate
without oversight and accountability. The people of California and the
legislature have shown broad support for the Mandela Act and comprehensive
legislation on the issue of solitary confinement. It is time that the
Governor joined this effort and provides us the safety and accountability
we deserve.”
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