Saturday, 25 October 2014 / TRUTH-OUT.ORG

"Everything Legal Is Not Moral": Why We're Taking Solitary Confinement to Court

Saturday, 09 June 2012 00:00 By Jules Lobel, Truthout | News Analysis

Solitary Confinement(Photo: eddiejdf / Flickr)Last year, a group of California men numbering in the thousands united in protest against daily suffering by staging harrowing hunger strike that lasted for weeks. They hoped, if they survived, to finally breathe air that was fresh; to eat food that wasn't rotten; to be able to look out a window and see a bird, or a tree, or something alive; and to be able to hold a hand or share a hug with those they loved, after years - and in some cases, decades - of being unable to do so. In short, these men were asking for their humanity back.

Many of the men to whom I'm referring, prisoners from across a state where the unimaginable cruelty of solitary confinement for periods upward of ten years is an endemic practice, had exhausted all other possible means to access their fundamental rights. Seeing no other option, they used their lives as collateral, in the hopes that those who confined them would finally listen and find the compassion, or compunction to bring about an end to their living nightmares.

After weeks of doing nothing, the state of California did eventually relent, promising sweeping reforms of their prison procedures, including those involving the Security Housing Units (SHUs) where solitary confinement takes place. However, I and my colleagues at the Center for Constitutional Rights were among many who examined those so-called reforms earlier this spring, only to be instantly reminded that the phrase "something is better than nothing" is not always true.

Most disturbing amid the slew of new rules and regulations that, in reality, seem largely geared around enforcing the old ones, is a set of guidelines that actually expands the net of who can be incarcerated into the SHU.

The state's failure to uphold promises of reform has proven the impetus for my colleagues and I to file a lawsuit in federal court this week that challenges the practice of prolonged solitary confinement within California's Pelican Bay Prison as unconstitutional. Although Pelican Bay is the most notorious offender, with a third of its prisoners currently in the SHU, 500 of whom have been in for ten years or more, and some knowing little of life outside of the same cell for 30 years, we hope that this lawsuit will be the first of many to seek reforms against a practice which is all too common across the country.

Of the men we are representing, some have no history of violence, finding themselves with long prison sentences under the state's "three strikes" law for crimes such as drug possession, or the burglary of an unoccupied dwelling. All have been kept in solitary confinement - locked in windowless rooms for between 22 and a half  and 24 hours each and every day - for ten years or more. One such prisoner, Gabriel Reyes, was last able to hug and kiss his two daughters when one was an infant and the other a toddler entering pre-school. They are now 19- and 22-year-old women.

Unsurprisingly, all the men also exhibit the telltale signs of torture, including anxiety, erratic moods, heart palpitations, insomnia and paranoia. Further, they are unable to meaningfully contest the conditions of their confinement, as the accusations of "gang association," that place so many of them there, are often allowed to be submitted anonymously, with no oversight or fact checking. It is under these grounds, that we challenge the units as a violation of the Eighth Amendment's "cruel and unusual punishment" clause and the 14th Amendment's guaranteed "right to due process."

Although this is the first major legal challenge on SHUs using Eighth Amendment grounds, it also evokes parallels to the continuing legal challenge by the "Angola 3," three men who were locked into solitary confinement for over 30 years (two of whom are still incarcerated), after they organized a series of nonviolent hunger and worker strikes within the Angola Prison in Louisiana. When it came to light that these men had been framed for the murder of a guard in order to justify their sentence, the magistrate judge presiding over the case described their suffering as "so far beyond the pale" that there was nothing "even remotely comparable in the annals of American jurisprudence."

Robert Hillary King, the only of the Angola 3 yet released after serving 29 consecutive years in solitary, has famously stated, "Everything legal is not moral; legality and morality are not friends ..."

It is easy for someone who has endured the inhumanity that this man has suffered to lose all faith in the legal system. However, it is important to remember that legality is a living, breathing contract of, for and by the people, firmly rooted in our collective morality. When legality ceases to resemble its moral roots, it has always been the case that the great mechanisms within our civil society jump into action to regulate, reform and restore balance.

That we find ourselves in a time when so many are choosing to peacefully exercise their civil rights, only to face heavy-handed retaliation by powerful establishments, is a telltale sign that we have reached a new frontier in the rights movement. We must do everything we can to bring that frontier directly to the steps of prisons all across the country, starting with Pelican Bay.

This article may not be republished without permission from Truthout.

Jules Lobel

Professor Jules Lobel is the Bessie McKee Wathour Endowed Chair at the University of Pittsburgh School of Law.

Recently, Lobel co-authored the award winning book, Less Safe, Less Free: Why America is Losing the War on Terror (2007) with Professor David Cole, which won the first Roy C. Palmer Civil Liberties Prize for exemplary scholarship exploring the tension between civil liberties and national security. He is also the author of, Success without Victory: Lost Legal Battles and the Long Road to Justice in America (2003), and editor of several books on Civil Rights Litigation as well as the U.S. Constitution.

He has authored numerous articles on international and constitutional law in publications including Yale Law Journal, Harvard International Law Journal, Cornell Law Review, University of Pennsylvania Law Review and Virginia Law Review. Lobel’s article, entitled, Preventive Paradigm and the Perils of Ad Hoc Balancing was selected by Oxford University Press as one of the Top Ten Global Justice Law Review Articles in 2007.

Lobel is also the president of the Center for Constitutional Rights. 


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"Everything Legal Is Not Moral": Why We're Taking Solitary Confinement to Court

Saturday, 09 June 2012 00:00 By Jules Lobel, Truthout | News Analysis

Solitary Confinement(Photo: eddiejdf / Flickr)Last year, a group of California men numbering in the thousands united in protest against daily suffering by staging harrowing hunger strike that lasted for weeks. They hoped, if they survived, to finally breathe air that was fresh; to eat food that wasn't rotten; to be able to look out a window and see a bird, or a tree, or something alive; and to be able to hold a hand or share a hug with those they loved, after years - and in some cases, decades - of being unable to do so. In short, these men were asking for their humanity back.

Many of the men to whom I'm referring, prisoners from across a state where the unimaginable cruelty of solitary confinement for periods upward of ten years is an endemic practice, had exhausted all other possible means to access their fundamental rights. Seeing no other option, they used their lives as collateral, in the hopes that those who confined them would finally listen and find the compassion, or compunction to bring about an end to their living nightmares.

After weeks of doing nothing, the state of California did eventually relent, promising sweeping reforms of their prison procedures, including those involving the Security Housing Units (SHUs) where solitary confinement takes place. However, I and my colleagues at the Center for Constitutional Rights were among many who examined those so-called reforms earlier this spring, only to be instantly reminded that the phrase "something is better than nothing" is not always true.

Most disturbing amid the slew of new rules and regulations that, in reality, seem largely geared around enforcing the old ones, is a set of guidelines that actually expands the net of who can be incarcerated into the SHU.

The state's failure to uphold promises of reform has proven the impetus for my colleagues and I to file a lawsuit in federal court this week that challenges the practice of prolonged solitary confinement within California's Pelican Bay Prison as unconstitutional. Although Pelican Bay is the most notorious offender, with a third of its prisoners currently in the SHU, 500 of whom have been in for ten years or more, and some knowing little of life outside of the same cell for 30 years, we hope that this lawsuit will be the first of many to seek reforms against a practice which is all too common across the country.

Of the men we are representing, some have no history of violence, finding themselves with long prison sentences under the state's "three strikes" law for crimes such as drug possession, or the burglary of an unoccupied dwelling. All have been kept in solitary confinement - locked in windowless rooms for between 22 and a half  and 24 hours each and every day - for ten years or more. One such prisoner, Gabriel Reyes, was last able to hug and kiss his two daughters when one was an infant and the other a toddler entering pre-school. They are now 19- and 22-year-old women.

Unsurprisingly, all the men also exhibit the telltale signs of torture, including anxiety, erratic moods, heart palpitations, insomnia and paranoia. Further, they are unable to meaningfully contest the conditions of their confinement, as the accusations of "gang association," that place so many of them there, are often allowed to be submitted anonymously, with no oversight or fact checking. It is under these grounds, that we challenge the units as a violation of the Eighth Amendment's "cruel and unusual punishment" clause and the 14th Amendment's guaranteed "right to due process."

Although this is the first major legal challenge on SHUs using Eighth Amendment grounds, it also evokes parallels to the continuing legal challenge by the "Angola 3," three men who were locked into solitary confinement for over 30 years (two of whom are still incarcerated), after they organized a series of nonviolent hunger and worker strikes within the Angola Prison in Louisiana. When it came to light that these men had been framed for the murder of a guard in order to justify their sentence, the magistrate judge presiding over the case described their suffering as "so far beyond the pale" that there was nothing "even remotely comparable in the annals of American jurisprudence."

Robert Hillary King, the only of the Angola 3 yet released after serving 29 consecutive years in solitary, has famously stated, "Everything legal is not moral; legality and morality are not friends ..."

It is easy for someone who has endured the inhumanity that this man has suffered to lose all faith in the legal system. However, it is important to remember that legality is a living, breathing contract of, for and by the people, firmly rooted in our collective morality. When legality ceases to resemble its moral roots, it has always been the case that the great mechanisms within our civil society jump into action to regulate, reform and restore balance.

That we find ourselves in a time when so many are choosing to peacefully exercise their civil rights, only to face heavy-handed retaliation by powerful establishments, is a telltale sign that we have reached a new frontier in the rights movement. We must do everything we can to bring that frontier directly to the steps of prisons all across the country, starting with Pelican Bay.

This article may not be republished without permission from Truthout.

Jules Lobel

Professor Jules Lobel is the Bessie McKee Wathour Endowed Chair at the University of Pittsburgh School of Law.

Recently, Lobel co-authored the award winning book, Less Safe, Less Free: Why America is Losing the War on Terror (2007) with Professor David Cole, which won the first Roy C. Palmer Civil Liberties Prize for exemplary scholarship exploring the tension between civil liberties and national security. He is also the author of, Success without Victory: Lost Legal Battles and the Long Road to Justice in America (2003), and editor of several books on Civil Rights Litigation as well as the U.S. Constitution.

He has authored numerous articles on international and constitutional law in publications including Yale Law Journal, Harvard International Law Journal, Cornell Law Review, University of Pennsylvania Law Review and Virginia Law Review. Lobel’s article, entitled, Preventive Paradigm and the Perils of Ad Hoc Balancing was selected by Oxford University Press as one of the Top Ten Global Justice Law Review Articles in 2007.

Lobel is also the president of the Center for Constitutional Rights. 


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