Court to consider class in solitary confinement suit

See correction below

By Hamed Aleaziz

Daily Journal Staff Writer

This summer, thousands of inmates across California staged a weeks-long hunger strike as a sign of their opposition to the state's practice of confining prisoners to isolation indefinitely. This week a federal court will take up the issue of indefinite solitary confinement as inmates battle to win class certification in their case against the state. The suit, spearheaded by two leaders of the hunger strike along with eight other inmates, seeks to reform conditions and practices inside Pelican Bay's Security Housing Unit, or SHU, where some inmates have been held in solitary confinement for months, years or even decades. They hope to change the criteria through which inmates are assigned to the unit and revamp the procedure for getting out.

An early test comes Thursday, when U.S. District Judge Claudia Wilken will hear arguments in Oakland on whether to certify a class of nearly 500 inmates who have been in the unit for more than a decade. Ashker et al. v. Brown et al., CV09-5796 (N.D. Cal., filed May 31, 2012).

To obtain the court-ordered reforms, the inmates will have to overcome existing case law generally deferential to the government. Success, however, could limit the future of the use of solitary confinement in California and create further headaches for officials already embroiled in litigation surrounding overcrowding in state prisons.

The visibility of the inmates' hunger strike, which garnered media attention and support from some lawmakers, could benefit the plaintiff prisoners in court, some legal experts said.

"When the political culture changes, it creates a context in which a court may be willing to do something that it wouldn't have otherwise done, which is to hold these conditions unconstitutional," said Sharon Dolovich, a UCLA School of Law professor who studies prison law.

The inmates allege various constitutional violations with the Pelican Bay SHU. They claim the indefinite nature of the solitary confinement for certain inmates - they aren't told how long their isolation will last - coupled with the conditions themselves are cruel and unusual in violation of the 8th Amendment.

According to the plaintiffs, inmates in the SHU are allowed no contact visits with family or friends and have virtually no access to rehabilitative or educational programs. Their cells receive virtually no natural light, and prisoners are only allowed out of their cells for brief periods of time. The Department of Corrections and Rehabilitation maintains that it does provide inmates with educational programming.

State officials maintain the use of secure housing units - generally used for inmates with alleged gang connections or who are particularly dangerous - is critical for safety. "Restricting the gangs' communication has limited their ability to engage in organized criminal activity and has saved lives both inside and outside prison walls," Jeff Beard, secretary of the California Department of Corrections and Rehabilitation, wrote in an August opinion piece published in the Los Angeles Times.

A spokeswoman directed questions to a legal brief filed by the state.

But attorneys for the inmates, such as Anne Weills counsel with Siegel & Yee, are skeptical of the evidence used to condemn inmates to solitary confinement. "The men have never had a due process hearing where they can confront their accusers or see the 'evidence' that has been used to keep them in indefinite confinement in the Pelican Bay Security Housing Unit for decades, if not the rest of their lives," she said. "At this time, all such evidence is secret. We would like to see it."

Prisoners "validated" as gang members can be held indefinitely in the SHU, according to the prisoners' suit. The process "does not require CDCR to show that the prisoner has violated a prison rule, broken the law, or even acted on behalf of a gang," their court briefs say. And the current process fails to allow "validated" prisoners a way to get out of the unit unless they inform on fellow inmates - something critics contend can lead inmates to fabricate information.

The state, however, argues that it has implemented a pilot program that moots many of the inmates' claims. The program adds due process protections, including a case-by-case review for inmates in security housing units across the state and a behavior grid for determining who is sent to theunit.

The program, however, is not permanent - a point Wilken emphasized in her rejection of the state's motion to dismiss the lawsuit.

Still, inmates could face a tough road, legal experts said, citing previous court rulings siding with the state on similar claims.

In one major federal case, Madrid v. Gomez, a judge in 1995 rejected claims that conditions at Pelican Bay's Security Housing Unit were cruel and unusual across the board, though the court did rule that the circumstances facing prisoners with a mental or psychological disorders qualified as unconstitutional.

The state argues that Madrid and other decisions preclude the 8th Amendment claim, but Wilken has disagreed that her hands are tied.

In an April order denying the state's motion to dismiss the case, Wilken said that Madrid "left open the possibility that longer periods of confinement in the SHU ... could implicate Eighth Amendment concerns, even for those inmates who are not predisposed to mental illness."

While legislative action could also affect the situation - Assemblyman Tom Ammiano, D-San Francisco, and Sen. Loni Hancock, D-Berkeley, have promised legislative hearings on solitary confinement as early as this fall - Thursday's hearing is shaping up to be an early test of whether the hunger strike and public outcry it stirred will impact the case.

Keramet Reiter, a UC Irvine professor and expert on solitary confinement, said that as public attitudes have become more critical of long-term solitary confinement, so too could constitutional standards.

"The 8th Amendment is about evolving standards of decency, and I think that, especially when you look at what's been happening publicly over the last few years, there's been more public pressure and outcry around long-term solitary confinement," Reiter said.

"There's an argument to be made that the evolving standards are changing and that maybe this is the time."

Dolovich said courts have been unwilling to find indefinite solitary confinement unconstitutional largely because of a culture of judicial deference. But she, too, said recent public outcry could alter the court's perspective.

"It's as much a matter of judicial politics and cultural views of these penal practices as it is a matter of constitutional law," she said.

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Correction: An earlier version of this story failed to attribute the claim that inmates in solitary confinement have "virtually no access to education or rehabilitative programs." Also, the article failed to mentions the Department of Corrections and Rehabilitation's position on the matter. The Daily Journal regrets the errors.

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