Attorneys and family members announced on September 1 what they called a "landmark settlement" in the class-action lawsuit Ashker v. Governor of California. The settlement, stated lead attorney Jules Lobel, "is an important step in the growing movement to end solitary confinement."
The settlement comes after months of negotiations between advocates and the California Department of Corrections and Rehabilitation (CDCR). It also comes after years of agitation, including a lawsuit and three mass prison hunger strikes, aimed at ending California's practice of placing prisoners in isolation for indeterminate periods of time. Advocates predict that between 1,500 and 2,000 people will be released from isolation in the coming months.
At issue is California's security housing units (or SHU) and its practice of placing those accused of gang affiliation within these units for an indeterminate time period. Within the SHU, they are locked into windowless cells for at least 23 hours per day. When taken out of their cells - for a shower, a visit or an hour of recreation alone in an exercise pen - they are handcuffed and ankle chained. Two categories of people are placed in the SHU. Those who break prison rules are temporarily sent to the SHU for up to five years. The other category includes those who have been placed in isolation on accusations of gang involvement. For them, there is no fixed end date. Until recently, accusations that have landed them in the SHU often relied on confidential informants and circumstantial evidence, such as tattoos or associations with others. Until recently, one of the few ways to be released from the SHU was to "debrief" or provide information incriminating others, who are then placed in the SHU for an indeterminate sentence. They are the ones who have written manifestoes, filed lawsuits and repeatedly gone on hunger strike to protest their conditions of confinement.
In California's Pelican Bay State Prison, 1,134 of its 1,181 prisoners were held in the SHU as of June 2015. Although CDCR insists that solitary confinement does not exist within its prison system, those within the SHU argue otherwise and, in 2012, went to court to prove it.
Todd Ashker will be able to leave his cell and be around other people for the first time in 25 years.
That year, noted Jules Lobel, president of the Center for Constitutional Rights and lead attorney on the lawsuit, more than 500 people had been isolated in the security housing unit (SHU) at Pelican Bay for over 10 years. Seventy-eight people had spent more than 20 years under these conditions. Todd Ashker, the lead plaintiff, is one of those 78 people. He arrived at Pelican Bay in 1990, less than a year after the prison opened.
Under the terms of the settlement agreement, Ashker will be able to leave his cell and be around other people for the first time in 25 years. Under the settlement, those who have spent 10 or more years in the SHU will be placed in either general population or a new restrictive custody general population facility. This unit is not solitary confinement, Lobel said. Instead, it will be a high-security unit in which prisoners are subject to intense supervision but will have the opportunity to interact with one another in person, participate in group programs and have contact visits with their families and loved ones. Those who have spent the longest time in the SHU will be reviewed first.
The settlement also requires CDCR to review all prisoners placed in the SHU for gang affiliation, prohibits future SHU placement based solely on gang affiliation and prohibits indeterminate SHU placement. It also limits placement in Pelican Bay's SHU to five years. The Step Down program, which has been criticized by advocates and prisoners, has been revised to last only 24 months instead of three to four years. Those who fail to complete the Step Down program will be sent to a restricted custody general population facility, not back to the SHU. Those who complete the Step Down program will be placed in general population. The settlement gives CDCR one year to make these changes. But attorneys expect that people within the SHU will be seeing changes sooner than that. In addition, the settlement also includes at least two years of compliance monitoring by a federal magistrate.
CDCR officials also view the settlement as a step in the right direction. "This proposed settlement is a key milestone for CDCR as we continue to reform our gang management and Security Housing Unit policies," stated CDCR Secretary Jeffrey Beard. "We started this important work several years ago, successfully reducing the use of segregated housing for gang-validated inmates. That foundation allows us to safely and efficiently make the changes announced today."
"Peaceful Protests Made This Settlement Possible"
Attorneys and advocates are quick to point out that the settlement is the result of organizing by those within the SHU and their family members and supporters outside prison walls.
On July 1, 2011, Ashker and thousands of other prisoners went on hunger strike to protest prison policies, particularly those that kept them in the SHU indefinitely. They issued five core demands:
- Eliminate group punishments for individual rules violations;
- Abolish the debriefing policy and modify active/inactive gang status criteria;
- Comply with the recommendations of the 2006 US Commission on Safety and Abuse in Prisons regarding an end to long-term solitary confinement;
- Provide adequate food;
- Expand and provide constructive programs and privileges for indefinite SHU inmates.
The strike lasted for three weeks, spread to 13 other state prisons and its height involved at least 6,600 people incarcerated throughout California. In September 2011, prisoners resumed their hunger strike. Again, the strike lasted three weeks, but this time involved nearly 12,000 people, including California prisoners held in out-of-state private prisons in Arizona, Mississippi and Oklahoma. The strike ended after CDCR officials guaranteed a comprehensive review of every person placed in the SHU on charges of gang affiliation.
"I am hoping that this is just the beginning of an end of a practice that has gone on for far, far too long."
The following year, in 2012, CDCR changed its criteria for SHU placement from gang affiliates to those who are identified as part of "security threat groups" (STGs) and have participated in gang-related behavior. Its new policy prohibited SHU placement based solely on allegations of gang affiliation or information from confidential informants. It also released a Step Down program, in which SHU prisoners are reviewed and assigned to one of five steps, with each step allowing more privileges and contact with other people. Terry Thornton, CDCR deputy press secretary, has noted that, under the Step Down program, those in the SHU are no longer required to debrief, or even drop out of their gang. However, debriefing was not eliminated; those who choose to debrief are moved from the SHU to a transitional housing unit.
These changes did not satisfy prisoners in Pelican Bay's SHU. On July 8, 2013, they began another hunger strike. On the first day, over 30,000 people incarcerated throughout California refused meals. Although the numbers decreased over time, the strike lasted 60 days, making headlines and bringing the issue of solitary confinement onto evening news segments. It ended only after California legislators Loni Hancock and Tom Ammiano promised to hold hearings around the issues raised by the hunger strikers.
"These peaceful protests put the spotlight on these practices," stated Carol Strickman, staff attorney for Legal Services for Prisoners with Children and co-counsel on Ashker. "They made this settlement possible."
"I Am Hoping That This Is Just the Beginning"
Dolores Canales' son Johnny has been in the SHU at Pelican Bay for the past 14 years. He participated in the 2011 and 2013 hunger strikes, hoping to draw widespread attention to the realities that he and many thousands faced behind prison walls. For Canales, the settlement agreement comes as welcome news. "I am hoping that this is just the beginning of an end of a practice that has gone on for far, far too long," she stated.
Marie Levin's brother Sitawa Nantambu Jamaa has been in the SHU for the past 31 years. He is also a named plaintiff in the lawsuit. In May 2014, he was reviewed under the Step Down program and assigned to step three, which was a SHU in the state prison in Tehachapi in the southern part of California. His visits continued to be behind glass. Levin's voice begins to crack as she relays the impact of the settlement on her and her brother. "It will be a blessing to give him a hug, give him a kiss," she said.
For Canales, the announcement - and its implications for prisoners and their family members - is bittersweet. "I'm reminded of family members that I have befriended along the way," she said, as she reflects on the actions of Johnny and others locked within the SHU and her own activism in their support. "Some of them have died without ever being able to hold their loved ones' hands. They have only been able to see their loved one from behind glass."
For Todd Ashker, currently in his 25th year inside Pelican Bay's SHU, the settlement "should be viewed as a victory we can build on in our protracted ongoing struggle to end long-term solitary confinement."