Settlement to limit indefinite solitary confinement

By L.J. Williamson

Daily Journal Staff Writer

A victory Tuesday for Pelican Bay State prisoners held in solitary confinement for
22 to 23 hours per day may serve to reshape incarceration practices in California
and across the nation.

The suit, which alleged a violation of Eighth Amendment rights as a result of prisoners
being held in "Security Housing Units" (SHU) and denied due process rights frequently
as a result of alleged gang associations settled Tuesday, with an agreement that plaintiffs
be moved to newly-established "restrictive custody general population units," which
allow for small group activities and contact visits with families. Ashker v. Brown 09-CV5796 (N.D. Cal., filed Dec. 9, 2009).

Allegations of gang affiliation were sometimes based on as little as possession of
artwork or literature that prison officials believed was gang related, said Jules
Lobel, lead counsel for the plaintiffs, president of the Center for Constitutional
Rights and professor at the University of Pittsburgh School of Law.

"There has never been any data or any evidence presented that the confinement of all
gang members and associates has had any effect on violence in prisons," Lobel said.
"In fact, in our case we had a number of both prison experts and officials from other
states as well as nationally prominent prison experts who said that what California
has done is counterproductive."

Lobel said the key to the settlement was establishment of a "readily available alternative"
to solitary confinement for prisoners with behavioral issues.

"There's got to be some mechanism in-between the normal general population and Draconian
isolation," Lobel said. "This is not going to let people who commit violence continue
to do so in California prisons. But if you haven't committed any misconduct, you can't
be locked in the SHU because you might commit some in the future."

The settlement agreement reached Tuesday achieves four goals, Lobel explained.

All SHU prisoners statewide will be transferred to the general population unless found
guilty of recent serious misconduct; prisoners will only be placed in solitary confinement
for serious misconduct after a disciplinary due process hearing and no longer solely
for gang affiliation; indeterminate SHU sentences will no longer be administered in
California; and those who have been in indeterminate solitary confinement for more
than ten years will be released from solitary confinement, even if they have been
convicted of recent serious misconduct.

"The former practice of confining inmates, sometimes for many years based solely on
being a validated gang member or associate of a prison gang, existed for over 30 years,"
California Department of Corrections and Reform Secretary Dr. Jeffrey Beard said Tuesday
at a press conference.

"Had we not instituted a pilot program which moved us toward a behavior-based system
two years ago, this settlement would not have been possible." Beard said the settlement
was "a key milestone for CDCR as we continue to reform our gang management and Security
Housing Unit policies."

The California Correctional Peace Officers Association did not comment on the settlement,
but previously expressed concerns about the settlement's potential impact on officer
safety.

Anne M. Cappella, partner at Weil, Gotshal and Manges LLP, pro bono counsel for the
plaintiffs, said that it took a "long time" to get CDCR to the negotiating table.

She theorized that prisoner hunger strikes and expert reports both played a significant
role in ultimately reaching a settlement.

"There were psychologists - experts on the workings of the brain, on what happens
in solitary, and how that affects individuals - and experts in how this is done elsewhere,"
she said. "It may be [the report] that helped bring them to the table - the wide breadth
of experts talking about how harmful this was, and that there were alternatives that
weren't going to result in excess violence."

Lobel said that he hoped this settlement would have a far-reaching impact, paving
an alternate path for Texas, Arizona, and other states that sentence prisoners to
the SHU simply based on alleged gang affiliations and other minor offenses.

The settlement of the Ashker case may also bode well for other pending litigation, such as a suit filed by San
Quentin inmates alleging cruel and unusual punishment as it applies to long-term solitary
confinement and due process issues. Lopez v. Brown, 15-CV02725 (N.D. Cal., filed Jun. 17, 2015).

Dan Siegel, lead attorney in Lopez, was pleased to hear Tuesday's news.

"I'm glad for the Lopez plaintiffs ... because I believe that the court as well as
the department of corrections are interested in seeing the framework developed in
Ashker used as a basis for settlement in the San Quentin case, and I'm preparing to participate
in discussion to that end," he said.

href="mailto:LJ_Williamson@dailyjournal.com">LJ_Williamson@dailyjournal.com

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